author: THOMAS, Judge.

text:
    Clyde F. HELTON, Jr. v. BRENT BELCHER PROPERTIES, LTD., and Brent Belcher.
    2090698.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.

      K. Edward Sexton II of Gentle, Turner & Sexton, Birmingham, for appellant.

      Richard M. Kemmer of Kemmer & Kemmer, P.C., Centreville, for appellees.
   THOMAS, Judge.

Clyde F. Helton, Jr., appeals from the Bibb Circuit Court’s summary judgment in favor of Brent Belcher Properties, Ltd. (“Belcher Properties”), and Brent Belcher (hereinafter collectively referred to as “the defendants”).

Facts and Procedural History

On June 16, 2006, Helton, an employee of Belcol Wood, Inc., was injured during the course of his employment when he fell through a skylight and suffered severe and permanent injuries. In a previous proceeding, Helton filed a workers’ compensation action against Belcol Wood; the parties to that action reached a settlement agreement awarding Helton workers’ compensation benefits. A general release of liability was included in the settlement agreement.

On June 16, 2008, Helton filed the present action against the defendants. Helton alleged that Belcher Properties owned the property upon which Helton had sustained his injuries, and he asserted that the defendants were negligent and/or wanton in failing to safeguard the property and that the defendants had “entered into certain contractual or indemnity agreements, to provide for assumption of liability for injuries sustained on the property,” of which Helton is allegedly a third-party beneficiary, and had subsequently breached those agreements. On July 18, 2008, the defendants filed an answer.

On August 28, 2009, the defendants filed a motion for a summary judgment arguing that Helton’s acceptance of workers’ compensation benefits estopped him from resorting to any other remedy and that the defendants did not own, manage, lease, or maintain the property upon which Helton had sustained his injuries. The defendants attached to their summary-judgment motion the affidavit of Brent Belcher, vice president of Belcol Wood, stating that Belcol Wood leased and maintained the property upon which Helton sustained his injuries and that the defendants were not liable to Helton because they did not own, manage, lease, or maintain the property at the time Helton had sustained his injuries. The defendants’ summary-judgment motion was set for a hearing to occur on November 5, 2009.

On November 3, 2009, Helton filed a response in opposition to the defendants’ summary-judgment motion in which he argued that Belcher Properties did, in fact, own the subject property and that the defendants had failed to address his breaeh-of-contract claim. Attached to Hel-ton’s response were documents purporting to show that Belcher Properties owned the property upon which Helton had sustained his injuries. On November 4, 2009, the defendants filed a motion to supplement their summary-judgment motion with the affidavit of Patrick Matlock, a mapper for the Bibb County tax assessor/collector, and various other documents. Those documents indicated that Belcher Properties did not own the property upon which Hel-ton had sustained his injuries on the date that Helton sustained his injuries.

On November 5, 2009, the circuit court entered a summary judgment in favor of the defendants on all claims, stating as follows:

“This matter is before the Court on the [defendants’] motion for summary judgment. The Court, having considered the evidence and arguments in favor of and in opposition to said motion, finds that the same is due to be and is hereby granted. The Court hereby enters judgment in favor of the [defendants] and against [Helton].”

On December 7, 2009, Helton filed a postjudgment motion to alter, amend, or vacate the circuit court’s judgment, which was denied by operation of law. On April 19, 2010, Helton filed an appeal to this court. This court transferred his appeal to the supreme court for lack of subject-matter jurisdiction, and that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. ‘Our standard of review in cases involving summary judgments is de novo.’ Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). ‘In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant ‘is entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. ‘[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show “substantial evidence” in support of his position.’ Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). 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 Assurance Co., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Prime v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1103-04 (Ala.Civ.App.2001). Further, our supreme court has held that

“this Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).

Discussion

As the summary-judgement movants, the defendants had the initial burden of showing that there was no genuine issue of material fact concerning Helton’s claims and that they were entitled to a judgment as a matter of law.

The defendants’ first argument in their summary-judgment motion was that Helton was estopped from suing them based on the exclusivity provisions of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. See §§ 25-5-52 and -53, Ala.Code 1975. It is undisputed that Helton received workers’ compensation benefits from Belcol Wood for the injuries he sustained. However, the circuit court could not have properly granted a summary judgment in favor of the defendants on this ground because the defendants waived this affirmative defense by failing to include it in their answer. Rather, without amending their answer, the defendants set forth the affirmative defense in their subsequently filed summary-judgment motion. Further, Hel-ton timely objected to the defendants’ raising the affirmative defense for the first time in their summary-judgment motion. Therefore, the defendants waived the affirmative defense. See Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984); see also Marlow v. Mid South Tool Co., 535 So.2d 120, 125 (Ala.1988) (“Only if an answer fails to assert an affirmative defense that is argued in a subsequently filed motion for summary judgment is the affirmative defense deemed waived.”).

The only other argument that the defendants raised in their summary-judgment motion was that they did not own, manage, lease, or maintain the property upon which Helton had sustained his injuries and, thus, could not be liable to Helton.

In his complaint, Helton claimed that the defendants were negligent and/or wanton based on their alleged failure “to adequately safeguard [Helton] from falling through the unmarked skylights” and by “painting over or otherwise disguising said skylights or in failing to make the property reasonably safe.” Vital to Helton’s claim is that Belcher Properties owned, or the defendants otherwise had control of, the property upon which Helton had sustained his injuries.

The defendants supported their summary-judgment motion with Belcher’s affidavit indicating that the defendants did not own, manage, lease, or maintain the property upon which Helton had sustained his injuries. Helton’s response in opposition to the summary-judgment motion was supported with documents that he claimed reflected the results of a title search on the property upon which Helton had sustained his injuries. Helton alleges that the title-search documents created a genuine issue of material fact as to whether Belcher Properties owned the subject property at the time Helton sustained his injuries. The defendants filed a supplement to their summary-judgment motion, supported by the affidavit of Patrick Matlock, a mapper for the Bibb County tax assessor/collector since 1980, and accompanying documents indicating that the subject property was not owned by Belcher Properties on the date that Helton sustained his injuries.

In his brief on appeal, Helton argues that the circuit court “committed reversible error when it granted summary judgment for the [defendants] where they did not fully submit all evidence at least 10 days before the hearing on [their motion for a] summary judgment.” However, because the circuit court granted the defendants’ summary-judgment motion without explanation, there is nothing in the record to indicate that the circuit court relied upon the documents attached to the defendants’ supplement filed on November 4, 2009.

Regardless, Helton raises this argument for the first time on appeal. Hel-ton failed to file a motion to strike the documents submitted in support of the defendants’ November 4, 2009, supplement and failed to assert this argument in his motion to alter, amend, or vacate the circuit court’s judgment. “It is well known that “we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal.’ ” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (quoting Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005)).

Moreover, our supreme court addressed this issue in Peebles v. Mooresville Town Council, 985 So.2d 888 (Ala.2007). In Pee-bles, a town council filed a motion for a summary judgment in the trial court, to which Peebles and other plaintiffs (“the Peebles group”), the nonmovants, filed a brief in opposition. Only one day before the hearing on the summary-judgment motion, the town council filed a reply brief with supporting evidence. The Peebles group objected to the reply brief on the basis that

“it had not been served at least 10 days before the hearing, in violation of Rule 56(c)(2), Ala. R. Civ. P., which states that ‘[t]he motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing....’”

Peebles, 985 So.2d at 391. The trial court in Peebles took no action in response to the Peebles group’s objection and granted the town council’s summary-judgment motion. The Peebles group appealed to the Alabama Supreme Court.

Our supreme court held:

“Rule 56(c)(2), [Ala. R. Civ. P.,] states that ‘[t]he motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing....’ Even if the hearing, held by the trial court a mere one day after the Town defendants served additional ‘supporting materials,’ i.e., the reply brief, violated the 10-day notice requirement of Rule 56(c)(2), the Peebles group has not shown that it was prejudiced by the trial court’s action. As this Court stated in Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So.2d 826, 828 (Ala.1991):
“‘Once a party shows noncompliance with the notice requirement, the party then must show that the trial court abused its discretion by failing to comply with that requirement. To demonstrate an abuse of discretion, the party need only come forth with any showing that the denial of the full 10-day notice period worked to his prejudice. Kelly [v. Harrison, 547 So.2d 443, 445 (Ala.1989) ].’
“The Peebles group claims that it was prejudiced in that it was unable to study and to respond to the brief served the day before the hearing; however, it has failed to identify exactly how its inability to study the brief prejudiced it, and this Court sees no evidence of such prejudice.”

Peebles, 985 So.2d at 392.

In the present case, as in Peebles, Helton has failed to show how he was prejudiced by the circuit court’s action. Therefore, Helton has not shown that this is a valid basis for reversing the circuit court’s judgment.

The documents that Helton attached to his response opposing the defendants’ summary-judgment motion indicated that Belcher Properties owned three parcels of property in Bibb County. Hel-ton failed to include an affidavit or any other evidence indicating that one of the properties that Belcher Properties owned was the property upon which Helton had sustained his injuries. In response, the defendants submitted evidence indicating that the property upon which Helton had sustained his injuries was a separate parcel of property owned by Olon Belcher Land Company, Inc. Helton did not submit any evidence to refute the defendants’ evidence, nor did he file a motion to strike the defendants’ evidence.

There is no genuine issue of material fact concerning the defendants’ ownership or control over the property upon which Helton had sustained his injuries, and, thus, we affirm the summary judgment as to Helton’s claim of negligence and/or wantonness.

Also in his complaint, Helton claimed that the defendants had entered into indemnity agreements “to provide for assumption of liability for injuries sustained on the property made the basis of this lawsuit,” that Helton was a third-party beneficiary of those agreements, and that the defendants had breached those agreements; the defendants did not address this claim in their summary-judgment motion. In their brief on appeal, the defendants argue that

“a crucial element of [Helton’s breach-of-contract] cause of action requires a finding that [Belcher Properties] or Brent Belcher owned the premises upon which [Helton] was injured or had some other nexus with the premises such as would cause an indemnity agreement to have been in existence between [Hel-ton’s] employer and the [defendants].”

However, the defendants’ contention in their summary-judgment motion that they do not own, or otherwise control, the property upon which Helton had sustained his injuries has no bearing on Helton’s claim that the defendants breached the alleged indemnity agreements. Our supreme court discussed the enforceability of agreements to indemnify for an indemnitee’s own negligence in Holcim (US), Inc. v. Ohio Casualty Insurance Co., 38 So.3d 722 (Ala.2009), as follows:

“[W]e have ... long enforced, in certain cases, written ‘indemnity’ agreements:
“ ‘The Court has, for many years, held that as between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee’s negligence, and such provision was clearly understood by the indemnitor, and there is not shown to be evidence of a disproportionate bargaining position in favor of the indemnitee.’

“Industrial Tile, Inc. v. Stewart, 388 So.2d 171, 175 (Ala.1980). This rule includes the enforcement of a valid indemnity agreement that requires an indem-nitor to indemnify an indemnitee for the indemnitee’s own wrongdoing: ‘[I]f the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee’s own wrongs, if expressed in clear and unequivocal language, then such agreements will be upheld. 388 So.2d at 176.... Thus, Alabama law recognizes the ability of parties to enter into valid indemnity agreements that allow an in-demnitee to recover from the indemnitor even for claims resulting solely from the negligence of the indemnitee.” 38 So.3d at 727-28. An indemnity agreement need not be premised upon any kind of special relationship other than a contractual agreement, and the defendants provide no legal authority to support their assertion that they cannot be liable to Helton under the alleged indemnity agreements simply because they did not own, or otherwise control, the property upon which Helton had sustained his injuries.

A thorough review of the record reveals that the defendants failed to address Hel-ton’s claim that the defendants had breached the alleged indemnity agreements in their summary-judgment motion. The defendants failed to meet their burden by failing to make a prima facie showing that no genuine issue of material fact existed as to this claim. Therefore, we reverse the summary judgment as to Helton’s breach-of-contract claim.

Conclusion

Based on the foregoing, we affirm the summary judgment as to Helton’s negligence and/or wantonness claim; we reverse the summary judgment as to Hel-ton’s breach-of-contract claim, and we remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . See Gaut v. Medrano, 630 So.2d 362, 364 (Ala.1993) (recognizing the exclusivity bar of the Workers’ Compensation Act as an affirmative defense).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Ex Parte Matthew S. JAMESON (In re James William Jameson and Lynn Bistle Jameson v. Michelle C. Jameson and Matthew S. Jameson).
    2090347.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.
    David S. Conrad and Kristine K. McCul-loch of Conrad & Barlar, Mobile, for petitioner.

      W. Gregory Hughes, Mobile, for respondents.
   PITTMAN, Judge.

This mandamus proceeding arises from a civil action pending in the Mobile Circuit Court in which grandparental visitation with a minor child has been sought. In September 2009, the paternal grandparents of Matthew Fisher Jameson (“the child”) — James William Jameson and Lynn Bistle Jameson (“the paternal grandparents”) — brought the underlying action against the child’s parents, Michelle C. Jameson (“the mother”) and Matthew S. Jameson (“the father”). The father moved to dismiss the action, asserting that the paternal grandparents’ action contravened the second sentence of Ala.Code 1975, § 30-3^.1(e), which provides that “[a]n original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child.” The trial court denied the father’s motion on November 25, 2009.

On January 13, 2010, 49 days after the trial court’s order was entered, the father filed a petition in this court seeking mandamus review of the trial court’s order. Notwithstanding that the father’s petition was filed outside a presumptively reasonable time, see Rule 21(a)(3), Ala. R.App. P., a majority of this court has elected, in response to the father’s request and in an effort to further the administration of justice (see Committee Comments to Amendments to Rule 21(a) and 21(e)(4), Ala. RApp. P., effective September 1, 2000), to exercise this court’s discretion to reach the merits of the father’s petition so as to address the fundamental legal question presented concerning the application of § 30-3-4.1(e). The paternal grandparents have filed an answer to the petition, and the petition has been submitted for decision on the petition, the answer, and the father’s brief.

The attachments to the father’s petition indicate that the mother and the father were divorced by the trial court in July 2001 and that the father was awarded custody of the child in the divorce judgment. In March 2007, the child’s maternal grandmother, Rebecca M. Hudson (“the maternal grandmother”), filed a petition to intervene in the divorce action and requested that the trial court award, among other things, “[rjegular and ongoing visitation with the ... [c]hild ... including overnight visitation and resumption of after-school care” that the maternal grandmother had allegedly previously provided to the child. The maternal grandmother’s petition to intervene in the divorce action was subsequently granted by the trial court; however, no further pleadings or papers as to the maternal grandmother’s visitation claim have been provided for this court’s review. In November 2007, the paternal grandparents filed a petition to intervene in the divorce action in order to seek an award of visitation on their own behalf. However, the father sought dismissal of the paternal grandparents’ intervention petition on the basis of the second clause of the second sentence of § 30-3-4.1(c) barring the filing of an original action “during any year in which another custody action has been filed concerning the child” (emphasis added); according to the father, the maternal grandmother’s March 2007 intervention petition amounted to a “custody action” within the scope of that clause and the paternal grandparents’ November 2007 intervention petition was therefore, he said, barred as a result. The trial court did not act on the motion to dismiss until February 2009, when it was granted.

Rather than seek appellate review of the denial of their petition to intervene, which would have been proper, the paternal grandparents initiated the underlying original action in September 2009 seeking an award of visitation rights. The father contends that the September 2009 action violates the first clause of the second sentence of § 30-3-4.1(e) barring the same grandparent from filing a second “original action requesting visitation rights ... during any two-year period” because, he says, the November 2007 petition to intervene in the divorce action was an “original action” that had occurred less than two years previously. According to the father’s petition, this court has held that the time limitations imposed by the legislature on successive filings seeking grandparent-visitation rights must be “strictly construed,” and he cites T.R.S.S. v. R.S., 828 So.2d 327 (Ala. Civ.App.2002), as authority compelling mandamus relief.

In the opinion in T.R.S.S., which the author of this opinion also wrote, this court reversed the judgment allowing visitation to the biological grandparents in that case for two reasons. The first, and arguably primary, reason was that the biological grandparents were not, in the contemplation of the grandparent-visitation statute in effect at that time, within the definition of a “grandparent” entitled to seek visitation on the basis of being a “parent of a parent of a minor child” in the legal sense because their own child’s parental rights as to the grandchild at issue had been terminated by a final judgment. Thus, our comment in T.R.S.S. that “[t]he statutory right of grandparent visitation must be strictly construed” was directly followed by our observation that the right to seek visitation “cannot extend to persons who do not fit the definition specified by the Legislature.” 828 So.2d at 330 (emphasis added).

The second reason stated for reversal in T.R.S.S., upon which the father relies here, was that the biological grandparents had filed a petition to intervene in the divorce proceeding that had involved their child (and that had affected the legal status of their biological grandchild) almost two months after the divorce action had itself ended — an attempt to intervene that, we said, was “untimely and should have been denied by the trial court.” 828 So.2d at 330. However, our opinion in T.R.S.S. did not equate the intervention attempt with the term “original action” but, instead, took pains to adhere to the statutory distinction between the two methods of bringing a question of grandparental visitation before a court of competent jurisdiction:

“In reviewing [§ 30-3-4.1], it seems apparent that [the biological grandparents] sought to circumvent the restrictions of § 30-3-4.1(e)[ ] by filing a petition to intervene rather than an original action. Obviously no original action could be entertained by the trial court because ‘[a]n original action ... shall not be filed during any year in which another custody action has been filed.’ § 30-3-4.1(e), Ala.Code 1975.
“On appeal R.S. and M.S. argue that, although their petition to intervene was filed within one calendar year from the filing of the original divorce complaint, they still complied with the statute. Their argument rests on the fact that the divorce complaint was filed in August 1999 and their petition for grandparent-visitation rights was filed in July 2000 — a different calendar year. We find this argument disingenuous at best. It is obvious on the face of the petition that it was not an original action, but instead it was an attempt to intervene in the divorce action. This fact is evidenced by the style and pleading of the petition as well as by the fact that the divorce case is referenced by number for intervention.”

828 So.2d at 330 (emphasis added). Thus, rather than conflating the concepts of an original action and an intervention petition under § 30-3-4.1, this court in T.R.S.S. instead gave effect to the intent of the biological grandparents to intervene in the (already concluded) divorce action but, nonetheless, opined that the intervention petition could not breathe life into the divorce action. We must, therefore, decline the father’s insistence that we treat all three grandparental-visitation matters— the maternal grandmother’s March 2007 petition to intervene, the paternal grandparents’ November 2007 petition to intervene, and the paternal grandparents’ September 2009 complaint — as three “original actions” under § 30-3-4.1(e).

As we noted in D.S. v. Cullman County Department of Human Resources, 42 So.3d 1284, 1287 (Ala.Civ.App.2010), “[t]he plain language of § 30-3-4.1 (e) states that it prohibits only the filing of an original action for grandparent visitation” within the time constraints enumerated in the second sentence of that statute. Although the father’s argument that “the trial court’s refusal to grant [his] motion to dismiss leaves [him] with no recourse other than to defend a third action for grandparent visitation rights” makes a certain appeal to the pragmatics of litigation expense, the Legislature, in its wisdom, has seen fit to draw distinctions between intervention efforts and original actions, on the one hand, and visitation proceedings prosecuted by different parties in interest on the other. In the words of § 30-3-4.1(e) itself, the paternal grandparents are simply not the same as the “grandparent” who pursued the March 2007 visitation claim, nor have the paternal grandparents, whose November 2007 intervention petition was denied, filed more than one “original action requesting visitation rights” within a two-year period so as to violate that statute.

For the foregoing reasons, regardless of the substantive burdens that may ultimately be imposed upon the paternal grandparents, the paternal grandparents have the procedural right under Ala.Code 1975, § 30-3-4.1, to assert their claim for grandparent-visitation rights as to the child. Thus, the trial court properly denied the father’s motion to dismiss, and we must in turn deny the father’s petition for a writ of mandamus challenging the correctness of that decision.

PETITION DENIED.

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

      . Although the father filed a motion on December 8, 2009, requesting that the trial court revisit its November 25, 2009, order, and the trial court denied that motion on December 16, 2009, neither event tolled the time for seasonable filing of the father’s mandamus petition. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003).

      . The respondent trial judge has exercised his prerogative under Rule 21(b), Ala. R.App. P., not to appear in this mandamus proceeding.

      . Section 30-3-4.1(c), Ala.Code 1975, allows for intervention by grandparents “in any action when any court in this state has before it any question concerning the custody of a minor child” or in "a divorce proceeding of the parents or a parent of the minor child.”

      . We note that the father’s motion was filed well before this court, in D.S. v. Cullman County Department of Human Resources, 42 So.3d 1284, 1287 (Ala.Civ.App.2010), observed that § 30-3-4.1(e) "does not place any time restrictions on the filing of a petition to intervene.”

      . An order denying intervention is final and appealable as to the participation of the mov-ant in the pertinent action. See Mars Hill Baptist Church v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 978 (Ala.1999).


text:
    John Robert FLOMER, Jr. v. Jessica FARTHING.
    2090208.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.

      Traci Owen Vella, Birmingham, for appellant.
    G. Houston Howard II of The Law Office of Keith A. Howard, LLC, Wetumpka, for appellee.
   THOMAS, Judge.

John Robert Flomer, Jr. (“the father”), and Lynn Flomer (“the mother”) were divorced in 2001. At the time of their divorce, the father and the mother (referred to at times collectively as “the parents”) negotiated a settlement agreement. That agreement contained the following postmi-nority-educational-support provision for the benefit of their then minor daughter, Jessica, who is now married and known by the name Jessica Farthing (“the daughter”): “For the support and maintenance of the [daughter], [the father] shall pay and be responsible for all reasonable costs of her post-secondary education. The [parents] agree to make reasonable efforts to obtain grants and/or scholarships for the [daughter].” The parents’ agreement was incorporated into the divorce judgment entered by the court.

In November 2006, the trial court entered a judgment on a petition seeking the modification of custody of the parents’ remaining minor child and seeking a finding of contempt. The pleadings instituting the modification/contempt action are not contained in the record on appeal. However, the judgment contains the following statement: “Father shall continue to pay for the daughter’s ... college tuition, books and fees.”

The daughter began her postsecondary studies at Auburn University at Montgomery in 2003. She completed the necessary prerequisites for pharmacy school and then transferred to pharmacy school at Auburn University in 2004. She married in 2005.

In May 2008, the daughter, graduated from pharmacy school. On or about October 8, 2008, the daughter sent the father a letter informing the father that her student loans were about to become due and seeking from the father $62,000, plus interest, for tuition that had not been covered by scholarships or grants. The letter requested that the father respond to the letter within three days; although he eventually replied via electronic mail, the father did not respond within three days.

On October 24, 2008, the daughter filed a petition seeking to have the father held in contempt for his failure to comply with the postminority-educational-support provision incorporated into the parents’ divorce judgment, which made the father responsible for the reasonable costs of the daughter’s postsecondary education. As noted above the father eventually responded to the daughter’s written request that he pay $62,000, plus interest, as required under the divorce judgment. His electronic-mail reply to the daughter indicated that he would pay the tuition and expenses that he was responsible for, but he requested receipts to prove that the $62,000, plus interest, the daughter requested he pay was actually incurred for tuition and other associated educational expenses. The father also stated in his response that he did not think that he was responsible for “any ... post-graduate tuition and books” or for any tuition after the daughter was married in 2005.

The father moved to dismiss the daughter’s petition, arguing that the fact that the daughter was not a party to the parents’ divorce action resulted in the daughter’s lacking standing to bring the contempt petition and, thus, in a lack of a justiciable controversy. After a hearing on the matter, at which the parties agreed that the daughter was an intended third-party beneficiary to the settlement agreement made by the parents and incorporated into their divorce judgment, the trial court reserved ruling on the motion to dismiss and set the case for a trial. The father filed an answer in July 2009; he also filed a counterclaim in which he sought compensatory and punitive damages for the daughter’s alleged intentional infliction of emotional distress for her failure, among other things, to invite the father to her pharmacy-school graduation or to her wedding. That counterclaim was severed from the contempt proceeding and is not relevant to the issues on appeal.

The trial court held a trial on July 9, 2009, at which the father and the daughter testified. The trial court determined, based in part on the father’s admission that he was required to pay for the daughter’s undergraduate tuition, books, and fees, that the father was responsible for paying $74,481.82, plus 5.375% interest on the balance after the date of the judgment, on the daughter’s outstanding loans. The trial court then determined that the father was in contempt for failing to pay for the daughter’s education and ordered, as a result, that the father pay a $1,500 attorney fee to the daughter’s attorney. The father filed a postjudgment motion, which the trial court denied after hearing arguments. The father appeals.

“This court recognizes that when the trial court’s judgment is based on ore tenus evidence, that judgment is presumed correct and is not subject to reversal unless it is so unsupported by the evidence that it is plainly and palpably wrong. Berry v. Berry, 579 So.2d 654 (Ala.Civ.App.1991). However, there is no presumption of correctness in the trial court’s application of the law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).
“This case involves an agreement, executed by the parties, that was incorporated into the parties’ divorce judgment, in which the father had agreed to pay the requested postminority support. Judgments of divorce are to be interpreted or construed as other written instruments are. Dees v. Dees, 581 So.2d 1103 (Ala.Civ.App.1990). The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). Further, if the terms of the judgment are not ambiguous, they should be given their usual and ordinary meaning. McClure v. Cassady, 426 So.2d 430 (Ala.Civ.App.1982).”

Amie v. Conrey, 801 So.2d 841, 846 (Ala. Civ.App.2001).

The daughter testified at trial that she had attended Auburn University at Montgomery (“AUM”) and then Auburn University, where she completed pharmacy school. She said that she had received grants to fund some of her schooling at AUM but that she did not receive any grants for pharmacy school. According to the daughter, she had amassed $133,113.85 in student loans and interest on those loans between 2003 and 2008. The daughter said that she had told the father when she began her studies at AUM that she would probably need student loans to pay for school. She said that he told her to get the loans in her name and that “we” would pay them later. She said that she was required to begin repayment of the loans in December 2008. The daughter testified that her tuition expenses were $62,009.91, that her books had cost between $400 and $500 each semester, and that her half of the monthly rent she and her husband had paid from 2005 until she completed pharmacy school in May 2008 was $200. The daughter had resided with the mother before her marriage in 2005, so she claimed no room-and-board expenses before 2005.

The daughter explained that she had sent the father a letter dated October 8, 2008, requesting that he assist with a portion of the student loans. She said that she had sent it in a manner that required the father’s signature to pick up the letter; she said that she knew that it took him a while to pick it up. She said that he did not respond to her letter for two months and that, when he did respond, he sent the response by electronic mail. She admitted that, in his response, the father had requested documentation; she said that she did not send documentation because the father had indicated that he did not intend to pay and because she thought that the matter would be decided in court. The daughter further admitted that she had never told the father what he needed to pay at any time before she sent the letter in October 2008, shortly before she instituted the contempt action.

According to the daughter, she had originally planned to seek a career as a doctor, so, she said, her father was aware that she would need additional schooling after college. The daughter said that she had changed her mind and had decided to seek a pharmacy degree instead; she admitted that her father did not know that she had decided to attend pharmacy school. The daughter explained that she had not received an undergraduate degree; she said that she had completed the necessary prerequisites for pharmacy school at AUM and then had transferred to pharmacy school at Auburn University in August 2004 without first graduating from college.

The father testified that he was employed and that he earned “over six figures.” He indicated that he was not concerned about “the money.” The father admitted that he owed the daughter for any expense related to undergraduate classes, but, he said, he never thought that he would be required to pay for graduate school for the daughter. The term “post-secondary,” he said he had thought, meant “pre-graduate” and encompassed only a “normal” college education. He also denied knowing that the daughter had ever contemplated attending medical school. He did testify, however, that he “thought that [he] knew” that the daughter was in pharmacy school at the time of the 2006 modification/contempt trial.

The father said that he had not paid any of the daughter’s postminority educational expenses because he had not been informed of what those expenses were; he said that he had never been presented with any bill for any expense and that he had not been provided any documentation of the daughter’s claimed expenses until shortly before the trial. According to the father, he picked up the daughter’s October 8, 2008, letter from the post office on October 18. He said that his delay in responding to the letter resulted from his desire to have his mother review his response for him. He admitted that he did not send the response to the daughter via electronic mail until December 1, 2008.

The evidence regarding the relationship between the father and the daughter was sparse because the trial court sustained an objection to a question regarding the relationship early in the trial and indicated that the subject would not be entertained. However, it was clear from other comments made by both parties that the two did not communicate with each other. The father indicated that he had not been able to contact the daughter via electronic mail even as far back as 2003 and 2004, because, he said, she “blocked” his correspondence. He said that he did not recall if he had tried to telephone or to reach the daughter via electronic mail since 2006.

On appeal, the father first argues that the daughter lacked standing to seek a contempt judgment under the parents’ divorce judgment. The father argues that the daughter’s remedy as a third-party beneficiary to her parents’ settlement agreement was to sue the father on a breach-of-contract theory. However, as the daughter points out, the settlement agreement lost its contractual nature once it was incorporated into and made a part of the divorce judgment. See Turenne v. Turenne, 884 So.2d 844, 848 (Ala.2003); Davidson v. Davidson, 580 So.2d 1362, 1363 (Ala.Civ.App.1991). Although the father cites caselaw indicating that a nonparty to a divorce judgment lacks standing to seek to invalidate the divorce judgment, see Waite v. Waite, 959 So.2d 610, 618-19 (Ala.2006), and Yerger v. Cox, 281 Ala. 1, 5, 198 So.2d 282, 286 (1967), we find those cases inapposite, because they involved challenges to the validity of a divorce judgment by a stranger to that judgment.

Rule 71, Ala. R. Civ. P., provides that, “[w]hen an order is made in favor of a person who is not a party to the action, other than a creditor of a party to a divorce proceeding, that person may enforce obedience to the order by the same process as if that person were a party....” The daughter is not a creditor of the father. She is admittedly the intended beneficiary of the postminority-educational-support provision in the parents’ divorce judgment. Moreover, the daughter, who took out loans in her own name to fund her postsecondary educational pursuits, was the only party entitled to a judgment in her favor for the amounts due; a judgment in favor of the mother would have been improper. See Dunigan v. Bruning, 64 So.3d 645, 654 (Ala.Civ.App.2010). We therefore conclude that the daughter did not lack standing to enforce the postminority-educational-support provision in the parents’ divorce judgment by initiating a contempt proceeding against the father.

The father next argues that the trial court erred by making him responsible for the postminority educational support of the daughter because, he argues, the daughter’s marriage and resulting emancipation should have extinguished his duty to pay that support. Although there is no doubt that marriage of a child emancipates that child, see Owens v. Owens, 412 So.2d 820, 822 (Ala.Civ.App.1982), an argument nearly identical to the father’s argument on this point has already been rejected by this court. See Smith v. Smith, 439 So.2d 1286 (Ala.Civ.App.1983). In Smith, the father argued that the marriage of his son extinguished his duty to pay the son’s educational expenses, which the father had agreed to pay by an agreement incorporated into a divorce judgment. Smith, 489 So.2d at 1287. The father had agreed to pay educational expenses for the son “until (a) the [son] completes his undergraduate and postgraduate education, (b) voluntarily terminates his education, or (c) reaches twenty-six years of age, whichever event sooner occurs.” Id. This court noted that “the parties were free to bargain with one another [regarding the postminority-edu-cational-support obligation and that] their agreement contained] no language which would lead to a conclusion that they intended support payments to cease upon the marriage [of the son].” Id. at 1289. Because the agreement of the parties extinguished the father’s obligation on the happening of one of three predetermined circumstances, none of which was the marriage of the son, this court determined that the father’s obligation was not extinguished by the marriage of the son. Id.

The father in the present case likewise had the opportunity to negotiate for conditions or limitations in the agreement obligating him to pay for the postsecondary education of the daughter. The parents’ agreement did not place any limitations on the father’s duty to pay for the daughter’s education except for using the term “reasonable” to modify the word “costs.” The fact that the daughter was, indeed, emancipated upon her marriage has no bearing on this issue, because the daughter was already emancipated — that is, over the age of majority — before her marriage and the postminority-educational-support provision in the parents’ divorce judgment was intended to provide for the payment of the daughter’s educational expenses even after she reached the age of majority. See Smith, 439 So.2d at 1289. The postminority-educational-support provision in the parents’ divorce judgment clearly does not contemplate that the father’s duty to pay support would be extinguished if the daughter married, so we cannot agree with the father that the trial court erred in not so concluding.

The father next argues that the postmi-nority-educational-support provision in the parents’ divorce judgment did not require him to fund the daughter’s graduate-level education. The father relies on the case-law that has developed since a parent’s duty to pay court-ordered postminority educational support was established in Ex parte Bayliss, 550 So.2d 986 (Ala.1989). He argues that a trial court is required to place reasonable limitations on a parent’s duty to pay postminority educational support; indeed, this court has long held that a trial court must impose a reasonable time limit for the attainment of a college education. See, e.g., Kent v. Kent, 587 So.2d 409, 413 (Ala.Civ.App.1991). Specifically, the father references Waddell v. Waddell, 904 So.2d 1275, 1281 (Ala.Civ.App.2004), in which this court determined that a court-imposed limitation that post-minority support continue for “a ‘reasonable period of time’ lack[ed] sufficient certainty.”

However, the father fails to recognize the distinction between court-imposed postminority educational support and a voluntarily assumed obligation to provide postminority educational support, the contours of which are not determined by the principles applicable to court-imposed postminority educational support but by the terms used in the agreement creating that obligation. See Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006) (“[T]he principles of Ex parte Bay- liss, 550 So.2d 986 (Ala.1989), do not generally apply in the context of a parent’s contractual undertaking to provide postmi-nority support to minor children that is incorporated into a binding judgment”). As noted above, we explained in Smith that parents are free to negotiate their agreement regarding postminority educational support as they see fit. See Smith, 439 So.2d at 1289. Thus, the father cannot argue that the trial court erred in not imposing a reasonable limitation on his obligation to pay postminority educational support for the daughter; the trial court did not impose such an obligation upon the father in the judgment under review. Instead, the trial court only construed and enforced the postminority-educational-support provision in the parents’ divorce judgment in which the father voluntarily agreed to pay for the “post-secondary education” of the daughter.

In the provision creating his obligation, the father agreed to pay for the “post-secondary education” of the daughter. The father testified at trial that he thought that “post-secondary education” referred to only an undergraduate college degree. However, the term “post-secondary education” is more expansive, including education after the conclusion of a secondary, or high school, education. “Post,” used as a prefix, is defined as “after: subsequent: later,” Merriam-Webster’s Collegiate Dictionary 969 (11th ed.2003), and “secondary school” is defined as “a school intermediate between elementary school and college and usually offering general, technical, vocational, or college-preparatory courses.” Merriam-Webster’s Collegiate Dictionary 1121 (11th ed.2003). Thus, the term “post-secondary education” would refer to education occurring after the completion of a high-school education; the term does not specifically refer to or exclude any particular type of education like either an undergraduate education or a graduate education. Even assuming that the daughter’s pharmacy-school education, which does not require as a prerequisite an undergraduate degree, is a graduate-degree program, we are still unconvinced by the father’s argument because of the expansive terminology used in the postminority-educational-support provision in the parents’ divorce judgment. We conclude, therefore, that the trial court did not err in interpreting and enforcing the provision obligating the father to pay for the “post-secondary education” of the daughter when the trial court ordered that the father be responsible for all the daughter’s tuition, including the tuition for pharmacy school.

We turn now to the father’s argument that the trial court erred by requiring him to pay postminority educational support for his daughter despite the estrangement between them. The father is correct that, pursuant to Ex parte Bayliss and its progeny, a trial court considering the imposition of postminority educational support may consider as a factor the relationship between the child and his or her parents. See Dunigan, 64 So.3d at 651. We recently considered an argument like the father’s in Dunigan, in which we explained:

“Since the inception of judicially imposed postminority educational support, Alabama law has allowed a trial court to consider the relationship between the child and his or her parents and the child’s ‘responsiveness to parental advice and guidance’ when determining whether and to what extent to impose upon a parent the obligation of paying postminority educational support. Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). However, this court, the court charged most often with the review of appeals involving postminority educational support, ‘has repeatedly stated that the existence of a strained relationship between parent and child does not prevent the child from having the opportunity to obtain a college education.’ Stinson v. Stinson, 729 So.2d 864, 869 (Ala.Civ.App.1998). In the earliest of postminority-educational-support cases, we held that the lack of familial interaction between a father and his daughter ‘should not preclude the daughter, in this instance, from having the opportunity to obtain a college education.’ Thrasher v. Wilburn, 574 So.2d 889, 841 (Ala.Civ.App.1990). In no instance has this court reversed a trial court’s imposition of postminority educational support solely because the evidence at trial reflected that the relationship between parent and child was so broken as to be a complete impediment to the receipt of such support. But see Penney v. Penney, 785 So.2d 376, 381 (Ala.Civ.App.2000) (reversing a judgment denying postminority educational support on, among other grounds, the trial court’s determination that it must consider the relationship between the child and her parents when considering the imposition of postminority educational support). We have affirmed a trial court’s denial of postminority educational support using as partial support for the denial the daughter’s decision to live with her stepfather after the death of the mother and her decision to have little contact with her father and his new family despite the father’s attempts to establish a relationship with the daughter. See Newman v. Newman, 667 So.2d 1362, 1368-69 (Ala.Civ.App.1994). However, our opinion in Newman made clear that, although the trial court could have considered the poor relationship between the father and the daughter, evidence of that poor relationship ‘alone ... is insufficient to prevent [a child] from receiving assistance in going to college.’ Newman, 667 So.2d at 1368; see also West v. West, 875 So.2d 323, 325 (Ala.Civ.App.2003) (affirming the denial of postminority educational support when the evidence failed to indicate whether the child had the ‘commitment to and aptitude for college’ but admonishing the trial court for denying postminority educational support solely on the basis of the poor relationship between the parent and the child).”

Dunigan, 64 So.3d at 651-52. Thus, under Alabama law, the fact that a parent and a child are estranged will not alone serve to prevent or extinguish a child’s right to postminority educational support.

The father in the present case, unlike the father in Dunigan, is not seeking to have his obligation to pay postmi-nority educational support terminated as to future payments. In fact, his obligation has been terminated by the conclusion of the daughter’s postsecondary education. He does, however, seek to avoid payment of his already accrued postminority-edu-cational-support obligation on the ground that he and the daughter have been estranged for some time. Thus, the father does not seek prospective relief from his obligation based on a change in circumstances; rather, he seeks retroactive relief from his already accrued obligation based on what appears to be a longstanding estrangement from the daughter. A parent seeking to modify or terminate his or her obligation to pay postminority educational support may not be awarded retroactive relief as to support due before the date of the filing of the petition for modification or termination. See King v. Barnes, 54 So.3d 900, 905 n. 1 (Ala.Civ.App.2010) (“However, if a petition to modify a postminority-support obligation is granted, that modification does not retroactively relieve a parent of the support due for the period before the filing of that petition.”); see also Fielding v. Fielding, 848 So.2d 766, 769 (Ala.Civ.App.2002). Thus, even were we to be convinced that the father’s “estrangement defense” had merit, he advanced it too late for it to be of any benefit to him.

Next, the father argues that the trial court erred in awarding the daughter $74,481.82, plus interest, in postminority educational expenses when, he says, the daughter has failed to prove all of her expenses. The father specifically challenges the trial court’s award of expenses for books to the daughter, because, he says, the daughter did not provide sufficient proof of those expenses and instead simply “estimated” them. However, the daughter actually testified that she had spent between $400 and $500 on books each semester; based on her actual expenses, she said, she spent, on average, $450 per semester for six semesters on her books. Although the daughter’s testimony may not have been the most precise evidence of the amount she spent on her books, it was competent evidence of the money she spent each semester. See Johnson v. Langley, 495 So.2d 1061, 1065 (Ala.1986) (“It is the law in Alabama that testimony about payment of money is competent, ' and the fact that there may be written records goes to the probative value of such testimony, not its competency.”); see also Pody v. Pody, 416 So.2d 1028, 1029 (Ala.Civ.App.1982). The father cross-examined the daughter briefly about her book expenses; however, he did not present any challenge to her testimony that she had spent between $400 and $500 per semester on her books. Thus, we conclude that the trial court was free to accept the daughter’s testimony about her average book expenses.

The father also attacks the trial court’s finding of contempt and the resulting imposition of an attorney fee. He argues that the evidence did not establish that he was in contempt for failing to pay the daughter’s postminority-educational-support expenses when he had been notified of the daughter’s demand that he pay $62,000 only shortly before she instituted her action for contempt. He points out that the daughter had not provided him any documentation regarding her expenses until mere days before trial on the contempt petition.

“ ‘[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.’
“Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994). Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994. Rule 70A(a)(2)(D) defines ‘civil contempt’ as a ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’”

Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ.App.2004).

Although the father had failed to pay any postminority educational support for the daughter by the time of trial, the evidence reflected that the parties had planned to have the daughter take out student loans to pay her expenses and to have the father pay the appropriate portion of those student loans at the conclusion of the daughter’s education. The dispute between the parties over the extent of the father’s liability for expenses arose at the time the daughter informed the father that her student loans were soon due for payment and the father objected to the $62,000 figure the daughter provided him without documentation. We agree with the trial court’s apparent estimation that the father in this case refused to accept an obligation for which he admitted he was responsible. However, because, as the daughter admitted, the father did have the right to object to certain expenses that he would not be obligated to pay, we cannot agree that the father was in contempt of any order of the trial court when he insisted on documentation of the daughter’s tuition expenses before he agreed to pay $62,000. Although we did not ultimately agree with any of the father’s arguments regarding the limits he believed existed on his duty to pay postminority educational support, the father was entitled to make those arguments, just as the daughter was entitled to refute them. Thus, we find no evidence supporting a conclusion that the father had wilfully refused to pay postmi-nority educational support in violation of a court order, and we reverse that portion of the trial court’s judgment holding the father in contempt of court. The trial court punished the father for his contempt by ordering that the father pay the daughter’s attorney an attorney fee of $1,500. Because we are reversing the trial court’s judgment insofar as it held the father in contempt, we must also reverse that portion of the judgment imposing the attorney fee as a sanction for that contempt.

The daughter requests an attorney fee on appeal. In light of the father’s partial success on appeal by securing a reversal of the contempt finding against him and the reversal of the imposition of an attorney-fee at trial based upon that finding, we deny the daughter’s request.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . That provision actually referred to the daughter as a minor child, but the father admits that the provision was not limited to providing postsecondary education only during the daughter's minority.

      . The father also mentions in his brief to this court that the daughter estimated her clothing expenses. However, at trial, the daughter disclaimed any entitlement to have the father pay her for her clothing expenses. Therefore, we will not address the daughter’s clothing expenses further.


text:
    James H. NELSON, Jr., and Nelson Boatyard, Inc. v. Norma P. WENZEL et al.
    2090345.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      John David Whetstone of Harrell, Whetstone & Monaghan, LLC, Gulf Shores, for appellants.
    Warren C. Herlong and Christopher T. Conte of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellees.
   PITTMAN, Judge.

In this appeal, transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6), the Baldwin Circuit Court has entered an order granting a motion seeking changes in that court’s September 11, 2009, order in an action stemming from a real-property dispute involving five cotenant plaintiffs— Norma P. Wenzel, Roderick H. Wenzel, Gary H. Wenzel, Joseph L. Wenzel, and Ronald E. Wenzel (“the Wenzels”) — a governmental defendant (Baldwin County), and two private-party defendants — James H. Nelson, Jr., and Nelson Boatyard, Inc. (“the Nelson defendants”). Because we conclude that the order from which the appeal has been taken is not a final judgment, we dismiss the appeal.

In May 2008, the Wenzels filed a civil action seeking, in pertinent part, a declaration of the legal status of a pathway that consists of gravel and dirt and that transects real property owned by the Wenzels in Baldwin County, extending from Buchanan Place to the north boundary of property held by the Nelson defendants. The Wenzels contended that the path was not a public road but that, if the path were judicially determined to be a public road, the extent of the public road should be declared to be limited to its historical width notwithstanding recent widening work performed on the pathway. In a brief submitted before trial, the Wenzels urged the trial court, if it determined the pathway to be a public road, to “require that Baldwin County provide a metes and bounds description of the road so that the boundaries of the road can be established conclusively, the premises considered and that the coordinates approximate the original width and alignment of the road.” The Nelson defendants filed an answer and a counterclaim asserting that they held title to the pathway by virtue of adverse possession.

After holding an ore tenus proceeding, the trial court on September 11, 2009, entered an order determining the pathway to be a public road by prescription and rejecting the proposition that the Nelson defendants held title to the pathway. The court ruled that the report of a survey of the pathway that had been performed by surveyor John Sims accurately depicted the location, extent, and features of the pathway, but it directed Baldwin County to have a metes and bounds survey performed as to the pathway and to submit the surveyor’s report for review by the trial court and potential incorporation into a final judgment. Baldwin County subsequently submitted a survey report that reflected a road right-of-way of over 55 feet in width.

In response to the filing of the survey report by Baldwin County, the Wenzels filed, on October 12, 2009, a motion, which they labeled as a motion to alter, amend, or vacate a judgment, stating numerous objections to the survey report; the Wen-zels later sought leave to supplement their motion so as to state additional objections to the Baldwin County survey and to challenge certain findings of fact made by the trial court. The relief sought by the Wen-zels in both filings was that the trial court “set aside, modify or vacate [its order of] September 11, 2009, to require Baldwin County to resurvey the right-of-way to keep it to the historical width of the single lane road ” (emphasis added). The Nelson defendants filed a response reiterating their contention that if the pathway was not a dedicated public road, it was held by them by virtue of adverse possession, but the Wenzels filed a motion to strike that response as amounting to an out-of-time motion to alter, amend, or vacate a judgment. The trial court, on November 25, 2009, rendered three orders that (a) granted leave to the Wenzels to supplement their October 12, 2009, motion challenging the trial court’s previous order; (b) struck the Nelson defendants’ response to the Wenzels’ motion; and (c) “granted” the Wenzels’ October 12, 2009, motion without further comment.

On January 6, 2010, the Nelson defendants filed a notice of appeal from the trial court’s November 25, 2009, order granting the Wenzels’ motion that had sought vacation or modification of the September 11, 2009, order so as to “require Baldwin County to resurvey the right-of-way to keep it to the historical width of the single lane road.” In their brief to this court, however, the Wenzels posit that the trial court’s order granting their motion of October 12, 2009, is not a final judgment because, they say, all issues have not been finally adjudicated. We agree.

As we noted in Greenwood v. Lindsey Harbor, LLC, 976 So.2d 1024 (Ala.Civ.App. 2007), “[a]n appeal ordinarily lies only from the entry of a final judgment,” and, likewise, an order or judgment “is generally not final unless all the claims, or the rights or liabilities of all the parties, have been decided.” 976 So.2d at 1026. Greenwood also notes that the sole exception to that rule of finality occurs “when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.” Id. We set forth those principles in Greenwood because we were considering the finality of an order entered in a real-property action in which the trial court had granted permanent injunctive relief in favor of a complaining party seeking continued access to a private right-of-way across land of defending parties but had ordered that a survey be conducted to determine how the right-of-way could be adjusted to connect to a nearby public road. 976 So.2d at 1025. Because the trial court’s order, which did not contain a Rule 54(b) direction of final judgment, did “not resolve how the right-of-way [would] be adjusted to accomplish [its] objective,” and because the defending parties had sought appellate review before the mandated survey could be conducted, we held that the order under review “le[ft] something else to be done and [did] not entirely resolve the issues before the court” and dismissed the appeal. 976 So.2d at 1026.

Similarly, in this case, although the trial court’s September 11, 2009, order declared the pathway at issue to be a public road, that court directed that a survey of the pathway at issue was to thereafter be performed at the behest of Baldwin County and that a report of that survey was to then be submitted to the trial court “for review and incorporation into [that order] if and as the [trial court deemed] appropriate.” After that survey had been performed, but before the trial court had expressly ruled on whether to credit the survey report and incorporate it into a final judgment, the Wenzels asserted that the Baldwin County survey was flawed and, in their October 12, 2009, motion as supplemented, urged the trial court to grant relief requiring that a new survey be performed that would adhere to the historical limits of the pathway. The trial court “granted” that motion, thereby declining to accept the report of the survey undertaken at the behest of Baldwin County under the September 11, 2009, order and effectively compelling Baldwin County to secure a second survey that had not been completed at the time that the Nelson defendants filed their notice of appeal on January 6, 2010. Here, as in Greenwood, we have no Rule 54(b) certificate and we have no judgment presented for review that has finally decided all the rights and liabilities of the various parties; instead, the November 25, 2009, order unquestionably “leaves something else to be done and does not entirely resolve the issues before the court.” 976 So.2d at 1026.

We conclude that the November 25, 2009, order of the trial court “grant[ing]” the Wenzels’ October 12, 2009, motion that, in turn, had challenged the trial court’s order of September 11, 2009, is not a final judgment that will support appellate review. The appeal is, therefore, dismissed. See Rule 2(a)(1), Ala. R.App. P. We note, however, that the premature notice of appeal of January 6, 2010, divested the trial court of jurisdiction to rule on all issues except matters entirely collateral to the appeal (see Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001)). To the extent that the trial court may have purported to render and enter any orders or judgments in the case following that date that touch and concern the extent of the parties’ substantive rights as to the pathway, as the Wenzels’ brief suggests, those orders or judgments are necessarily void under Horton. After this court’s certificate of judgment in this appeal has been issued, the trial court will regain jurisdiction to enter a final judgment. Id.

APPEAL DISMISSED.

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

      . Baldwin County did not file a notice of appeal and has not filed a brief with this court.