author: MOORE, Judge.

text:
    Renee FREEMAN v. Kimberly FREEMAN and Brandon Freeman.
    2091133.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    Kori L. Clement and Stephanie White Schmidt of Hare, Clement & Duck, P.C., Birmingham, for appellees.
   MOORE, Judge.

Renee Freeman appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of her son, Brandon Freeman, and his wife, Kimberly Freeman, on Renee’s claim of negligence. We affirm.

Facts and Procedural History

On June 30, 2009, Renee filed a complaint in the trial court against Brandon and Kimberly, asserting a claim of negligence. In her complaint, Renee asserted that she had been injured when a wooden swing that she was sitting in in Brandon and Kimberly’s yard collapsed. Brandon and Kimberly filed an answer on August 14, 2009.

On May 11, 2010, Brandon and Kimberly filed a motion for a summary judgment, attaching thereto excerpts from the depositions of Renee, Renee’s husband Rodney, Brandon, and Kimberly. The testimony in those depositions revealed the following facts. Renee testified in her deposition that she has two children, Brandon and Amber Rizzo. She stated that Brandon and Kimberly have two children, Cade and Lexi. Amber, who is married to Ryan Rizzo, also has a son, Colby. Renee stated that she lives approximately four and a half miles from Brandon and Kimberly’s home, which they have been living in for approximately eight years, and that she visits their house at least once a month and sometimes more. According to Renee, when Brandon and Kimberly purchased the house, the swing was already there.

Renee testified that, on March 8, 2009, she was returning Cade to Brandon and Kimberly’s house after he had spent the night with her. According to Renee, Cade was hungry and wanted ice cream. While Cade stayed at Brandon and Kimberly’s house, Renee and Lexi went to a store and purchased chicken for Lexi and ice cream for Brandon, Kimberly, and Cade, and she returned with Lexi and the food to Brandon and Kimberly’s house. Renee stated that when she and Lexi returned to the house, Amber and Ryan and some neighborhood children were in Brandon and Kimberly’s yard, so she put the ice cream away because she had not bought enough for all of them. According to Renee, she, Amber, Colby, and Lexi were sitting on the swing while the boys were throwing a football. She stated that the swing seemed fíne when they all sat on it and that, although there had been nothing preventing her from looking at the swing before she sat on it, she had not checked the swing to see if it was operable and she had not thought that it was necessary for her to do so. She stated' that, based on her use and observation of the swing on previous occasions, she thought it was fine to sit on. According to Renee, they had been sitting on the swing for maybe 10 minutes and the next thing she remembers was that she woke up on the ground.

Renee stated that she had sat on the swing maybe 10 or 20 times before she was injured and that the last time she had sat on the swing before the accident was probably in the fall of 2008. She stated that she had never noticed anything wrong with the swing when she had sat on it in the past, that she would not have sat on the swing if she had seen there was anything wrong with it, and that, looking at it from the outside, there was no indication that there was anything wrong with the swing. Renee testified that she did not think that Brandon or Kimberly knew there was anything wrong with the swing and that, if Brandon had known there was something wrong with the swing, he would not have allowed her or his children to sit on it. She stated that the only negligence that had occurred was that Brandon did not check the swing to see if there was anything wrong with it. According to Renee, Brandon told her the swing just crumbled when he went to take it down and throw it away.

Kimberly testified in her deposition that there is a wooden sidewalk in their backyard that is old and rotten, that it needs to be replaced or torn down, and that it is unsafe. Rodney testified that he had helped replace a wooden deck that was in Brandon and Kimberly’s backyard and that the deck had been rotten. Rodney testified that, unlike the deck, you could not see that the swing was rotten, that it looked fine, that he had never had any concern about the swing before the accident, and that he had never seen anything wrong with the swing. Kimberly stated that she did not know that the swing was rotten but that, looking back on the condition of the wooden deck and the wooden sidewalk, “maybe [they] should have known” that the swing was rotten. She stated that she had had no indication that the swing was unsafe before the accident and that she had allowed her children to play on the swing but that, if she had thought it was unsafe, she would not have.

Brandon testified in his deposition that “hindsight looking back, yes, I would say that I should have replaced the swing,” because, he said, he had replaced the deck, which was rotten, and a playhouse that still stood in the backyard was also rotten. He stated that he felt like he should have replaced the swing. He also stated, however, that he and his family “always” sat in the swing. Brandon testified that, at the time of the accident, he heard the wood when it snapped and the swing came down. He stated that, up until he tore the swing down, he had had no knowledge that there was anything wrong with the swing and that he would not have allowed anybody to use the swing if he had known that it was bad.

Renee filed an opposition to Brandon and Kimberly’s summary-judgment motion on June 4, 2010. On June 14, 2010, the trial court entered a summary judgment in favor of Brandon and Kimberly; that judgment stated, in pertinent part:

“The facts in this premises-liability action are mostly undisputed. Renee Freeman is the mother of Brandon Freeman and the mother-in-law of Kimberly Freeman. While visiting [Brandon and Kimberly’s] home, she sustained injuries when a swing on which she was sitting collapsed. The swing was located in the back yard and she had been sitting in it for a short period of time when it collapsed. She had sat in the swing on many other occasions while visiting [Brandon and Kimberly’s] home.
“The first issue to be determined is whether [Renee] was an invitee as claimed by her or a licensee as claimed by [Brandon and Kimberly], She was returning her grandchildren, [Brandon and Kimberly’s] children, to their home after an overnight visit with her. She had previously gone to Wal-Mart to get ice cream for her grandchildren and other family members. When she returned she sat in the swing and a short time later it collapsed. In viewing the evidence in a light most favorable to the nonmovant, and resolving all reasonable doubts in her favor, the Court considers Renee was an invitee rather than a licensee. An invitor’s duty to an invitee is to keep his premises in a reasonably safe condition, and, if the premises are unsafe, to warn of hidden defects and dangers that are known to him, but are unknown or hidden to the invitee. Ex parte Kraatz, 775 So.2d 801 (Ala.2000). A premises owner also has no duty to warn the invitee of open and obvious defects in the premises, which the invitee is aware of or should be aware of through the exercise of reasonable care. The entire basis of an invitor’s liability rest upon his superior knowledge of the danger which causes the invitee’s injuries. If that superior knowledge is lacking, the invitor cannot be held liable. Harding v. Pierce Hardy Real Estate, 628 So.2d 461 (Ala.1993). The undisputed evidence in this ease is that neither [Renee] nor [Brandon and Kimberly], prior to the accident, had knowledge of the alleged defective swing. In fact, in her deposition testimony, [Renee] stated that she never noticed anything wrong with the swing and would not have sat in it had she known otherwise. She also stated that she did not believe that either [Brandon or Kimberly] knew that anything was wrong with the swing pri- or to the accident. [Brandon and Kimberly] also testified that prior to the accident they were unaware of anything being wrong with the swing.
“[Renee’s] claim is based upon the theory that because [Brandon and Kimberly’s] wooden deck had become rotted and was replaced and a playhouse and a sidewalk were also in poor condition that it must naturally follow that [Brandon and Kimberly] reasonably knew that the swing was also defective. However, there was no testimony by any of the parties that prior to the accident anyone had knowledge of the defective condition of the swing. Even if there were defects at other locations on the premises the Court cannot speculate that this constitutes notice of a hidden defect in the swing. To the contrary, the evidence is undisputed that, prior to the accident none of the parties had notice of a defect to the swing. Without notice [Brandon and Kimberly] eannot.be liable to [Renee].
“Therefore, upon consideration of the pleadings, including the motion and attachments thereto and opposition of [Renee] and arguments of counsel the Court finds that there is no genuine issue of material fact and [Brandon and Kimberly] are entitled to a Judgment as a Matter of Law.”

On June 28, 2010, Renee filed what she styled as a Rule 60(b), Ala. R. Civ. P., motion to alter or amend the trial court’s judgment. Brandon and Kimberly filed a response to Renee’s motion on July 9, 2010. On July 13, 2010, the trial court entered an order denying Renee’s motion. Renee filed a notice of appeal to the Alabama Supreme Court on August 6, 2010; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Brandon and Kimberly filed a motion to dismiss the appeal or to strike issues raised on appeal, asserting that Renee’s notice of appeal was not filed within 42 days “of the date of the entry of the judgment or order appealed from,” pursuant to Rule 4, Ala. R.App. P., and that Renee’s filing of a Rule 60(b) motion did not toll the time for taking an appeal, citing Keith v. Moone, 771 So.2d 1014, 1017 (Ala.Civ.App.1997). Brandon and Kimberly argue that, as a result, although Renee has timely appealed the trial court’s order denying her Rule 60(b) motion, she has failed to preserve the right to appeal the underlying judgment. We disagree.

“The law is well-settled that ‘the nomenclature of a motion is not controlling.’ Rebel Oil Company v. Pike, 473 So.2d 529, 531 (Ala.Civ.App.1985). A trial court may look to the relief sought within the motion.” Post v. Duffy, 603 So.2d 1070, 1070 (Ala.Civ.App.1992). In the present case, Renee denominated her post-judgment motion as a “motion under Rule 60(b) to alter or amend.” In that motion, she asserted that there remained an issue of material fact that should be decided by a jury and, thus, that the summary judgment entered by the trial court was inappropriate. Renee clearly asserted in the body of the motion, therefore, that she was seeking relief from the judgment pursuant to Rule 59(e), Ala. R. Civ. P., which allows a trial court to alter, amend, or vacate a judgment, rather than pursuant to Rule 60(b). See Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157, 1159 (Ala.Civ.App.1991). We therefore conclude that Renee’s motion was a Rule 59(e) motion; because the filing of a Rule 59 motion suspends the running of the time for filing a notice of appeal, see Rule 4(a)(3), Ala. R.App. P., we conclude that Renee’s appeal from the trial court’s summary judgment was timely. We therefore deny Brandon and Kimberly’s motion to dismiss the appeal or to strike the issues raised on appeal.

Standard of Review

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-58 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007).

Discussion

On appeal, Renee argues that the trial court erred in entering a summary judgment in favor of Brandon and Kimberly. She asserts that the trial court properly determined that Renee was an invitee rather than a licensee but that the trial court failed to properly apply the relevant authority in determining that the question whether Brandon and Kimberly knew that the swing was defective was not in dispute. In response, Brandon and Kimberly argue that Renee was, in fact, a licensee rather than an invitee.

‘“[T]he duty owed by the landowner to a person injured on his premises because of a condition on the land is dependent upon the status of the injured party in relation to the land.’ Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala.1995).
““‘The three classifications of persons coming onto the land are trespasser, licensee, and invitee.... In order to be considered an invitee, the plaintiff must have been on the premises for some purpose that materially or commercially benefited the owner or occupier of the premises.” ’
“Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997) (quoting Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994)). ‘The distinction between a visitor who is a licensee and one who is an invitee turns largely on the nature of the visit which brings the visitor on the premises rather than the acts of the owner which precedes the visitor’s coming.’ Nelson v. Gatlin, 288 Ala. 151, 154, 258 So.2d 730, 733 (1972), overruled on other grounds by Standifer v. Pate, 291 Ala. 434, 436, 282 So.2d 261, 263 (1973). ‘One who enters the land of another, with the landowner’s consent, to bestow some material or commercial benefit upon the landowner is deemed an invitee of the landowner.’ Davidson v. Highlands United Methodist Church, 673 So.2d 765, 767 (Ala.Civ.App.1995). See also Restatement (Second) of Torts § 332 (1965):
“ ‘(1) An invitee is either a public invitee or a business visitor.
“ ‘(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
“ ‘(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings of the possessor of the land.’
‘“On the other hand, a person who enters the land of another with the landowner’s consent or as the landowner’s guest, but without a business purpose, holds the legal status of a licensee.’ Davidson v. Highlands United, Methodist Church, 673 So.2d at 767. See also Restatement (Second) of Torts § 330 (1965) (stating that ‘[a] licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent’).”

Edwards v. Intergraph Servs. Co., 4 So.3d 495, 500-01 (Ala.Civ.App.2008).

In Walker v. Mitchell, 715 So.2d 791 (Ala.Civ.App.1997), this court reversed a summary judgment entered in favor of the Mitchells on Walker’s premises-liability claims. 715 So.2d at 792. In that case, Walker, the Mitchells’ adult daughter, had agreed to pick up Mrs. Mitchell at the Mitchells’ house and to transport her in a rented automobile to a wedding in Kentucky. Id. at 792-93. While Walker was transporting her mother’s bags to the automobile, she stepped in a hole in the Mitchells’ yard and fell, injuring herself. Id. at 793. This court noted that Walker’s deposition testimony, indicating that her purpose for coming onto the Mitchells’ premises was to pick up Mrs. Mitchell and transport her and her luggage to Kentucky at Mrs. Mitchell’s request, tended “to indicate a purpose that ‘materially benefited’ Mrs. Mitchell” and that Walker was thus an invitee rather than a licensee on the Mitchells’ premises. Id. This court determined that, based on that evidence presented by Walker, the question whether Walker was a licensee, as argued by the Mitchells, or an invitee could not be resolved in favor of the Mitchells at the summary-judgment stage. Id.

In the present case, Renee asserts that because she had babysat for Cade overnight and had taken Lexi to get chicken and ice cream to bring back to the family, she was an invitee. We disagree. In Walker, Walker presented evidence indicating that the sole purpose of Walker’s visit to the Mitchells’ premises was to pick up Mrs. Mitchell and to transport her to Kentucky at Mrs. Mitchell’s request. 715 So.2d at 793. In the present case, the evidence in support of and in opposition to the summary-judgment motion, viewed in a light most favorable to Renee, indicates that Renee had kept Cade overnight and then returned him to Brandon and Kimberly’s home. The visit to return Cade was completed once Renee left Brandon and Kimberly’s home, this time with Lexi, to pick up food. In other words, the material benefit bestowed upon Brandon and Kimberly, if any, by virtue of Renee’s babysitting Cade for a night was no longer the underlying purpose for which she last returned to Brandon and Kimberly’s house before the accident occurred.

Thus, we must decide whether Renee’s trip with Lexi to purchase food for Cade and Lexi would suffice to present a question of fact as to whether the purpose of Renee’s visit conferred a material benefit on Brandon and Kimberly such that Renee was an invitee rather than a licensee. We do not believe that it would. Renee stated in her deposition that she had purchased ice cream for Cade, Brandon, and Kimberly. Unlike in Walker, however, she did not present evidence indicating that she had done so at Brandon and Kimberly’s request. Also unlike in Walker, Renee was not injured in the course of fulfilling her asserted purpose. Rather, she stated in her deposition that, because a number of neighborhood children were present, there was not enough food for everyone and that the food was put away. Renee then participated in a social visit with her family in Brandon and Kimberly’s backyard. Based on the evidence presented to the trial court in support of and in opposition to Brandon and Kimberly’s summary-judgment motion, we conclude that Renee did not present evidence indicating that she was an invitee rather than a licensee. To so hold would potentially allow any social visitor who brought food or gifts to the home of friends or family members without being asked to do so to achieve the status of an invitee. Such a holding would be in contravention of the established law in this state. See Morgan v. Kirkpatrick, 276 Ala. 7, 9, 158 So.2d 650, 652 (1963) (concluding that social guests are licensees). Thus, we conclude that Renee was properly a licensee on Brandon and Kimberly’s property.

We note that the duty owed to a licensee is not as great as that owed to an invitee. Although the court in Walker determined that the resolution of whether Walker was a licensee or an invitee was not properly resolved by a summary judgment, this court further stated that it “may nevertheless affirm the summary judgment in [the Mitchells’] favor if the Mitchells met their burden of demonstrating the absence of any genuine issue of material fact that they discharged their duty to Walker even assuming her status to be that of an invitee.” Id. at 793-94. Out of an abundance of caution, therefore, we will review the trial court’s summary judgment viewing Renee as an invitee.

In Walker, this court determined that, because the Mitchells had made no affirmative prima facie showing that they were not aware of the hole or that the hole was an open and obvious hazard of which Walker should have known, they had failed to show that there was no issue of material fact with regard to whether they violated a duty to Walker to keep their premises in a reasonably safe condition or to warn of unsafe conditions and, therefore, that the burden had not shifted to Walker to establish those matters by substantial evidence. Id. at 794.

In the present case, both Brandon and Kimberly testified that they did not know that, and that they had had no indication that, the swing was unsafe before the accident occurred. Indeed, Renee testified in her deposition that she did not believe that Brandon or Kimberly knew that there was anything wrong with the swing, that she did not believe that Brandon and Kimberly would have let their children sit on the swing if they had known there was a problem with the swing, that she and other family members had sat on the swing in the past, and that she thought the swing was fine to sit on based on her previous use and observation of the swing. We conclude, therefore, that unlike in Walker, Brandon and Kimberly made an affirmative prima facie showing that they were not aware of the defective condition of the swing. Therefore, the burden shifted to Renee to establish by substantial evidence that Brandon and Kimberly had violated a duty to her to keep their premises in a reasonably safe condition or to warn of unsafe conditions.

Renee asserts that she met that burden by presenting Brandon’s and Kimberly’s testimony that, “looking back,” they “should have” known that the swing was in bad shape or that they should have replaced the swing. Those assertions were based on their testimony that other structures in the backyard, including a wooden deck that had been replaced and a wooden sidewalk that needed to be replaced, were also rotten. It was undisputed, however, that those other structures were visibly rotten, whereas the swing did not appear rotten upon observation. Brandon, Kimberly, Renee, and Rodney each testified that their observation of the swing had not raised any concerns about the soundness of its structure. Renee asserts that Brandon and Kimberly should have known that the swing was rotten, despite its appearance and prior use without incident, based on their knowledge of nearby structures that were visibly rotten and were, or had been, in disrepair, unlike the swing itself, which appeared to be in shape for its normal use and was so used for approximately seven years without incident, and based on their admissions after the accident that the swing should have been replaced or torn down. We conclude that that evidence is not “substantial evidence” sufficient to establish a genuine issue of material fact regarding Brandon’s and Kimberly’s potential knowledge of the condition of the swing, given the testimony that Brandon and Kimberly were not aware of the rotten condition of the swing and that the swing had been used by Renee and others without incident.

We therefore affirm the trial court’s summary judgment in favor of Brandon and Kimberly.

AFFIRMED.

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

      . Renee's husband, Rodney Freeman, had joined in the filing of the complaint as a plaintiff, asserting a claim of loss of consortium. The trial court dismissed Rodney as a plaintiff on March 22, 2010.

      . We note that there were no evidentiary attachments to Renee’s opposition.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Frank J. KRUSE v. CITY OF BIRMINGHAM.
    2091131.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.
    Richard R. Rosenthal, Birmingham, for appellant.

      Frederic L. Fullerton II and John M. Edens, asst, city attys., Birmingham; and Michael K.K. Choy of Burr & Forman LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Frank J. Kruse filed a complaint in the Jefferson Circuit Court (“the trial court”) against the City of Birmingham (“the City”), alleging claims of unjust enrichment, money had and received, and violation of 42 U.S.C. § 1983; Kruse also sought certain declaratory and injunctive relief. The basis of Kruse’s claims is the City’s attempts to obtain payment of fines for parking-violation citations that were issued to a vehicle registered to Kruse. After paying those fines, Kruse brought this action, arguing that the City was time-barred from seeking to collect the fines. Kruse purported to prosecute his claims on behalf of a class of similarly situated plaintiffs, but the class was not certified.

The City removed the action to the United States District Court for the Northern District of Alabama, Southern Division (“the federal court”). The federal court entered a judgment in favor of the City on Kruse’s § 1983 claim and remanded the action to the trial court. Kruse did not appeal the federal court judgment.

Before the trial court, both parties moved for a summary judgment on Kruse’s state-law claims. On July 13, 2010, the trial court entered a summary judgment in favor of the City and denied Kruse’s summary-judgment motion. Kruse timely appealed, and our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), AIa.Code 1975.

A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

In his summary-judgment motion, Kruse asserted that the City sent him a letter threatening to incarcerate him if the fines for certain parking citations issued to his vehicle were not paid. Kruse paid the fines for the parking citations during a time when, pursuant to two City ordinances, the City granted amnesty from prosecution and further fines to those who paid their outstanding parking citations. Kruse maintained that the City’s attempts to make him pay the fines for improper-parking citations for his vehicle were time-barred by what he contends is the applicable statute of limitations for such collection attempts. In making that argument, Kruse insisted that an improper-parking citation is a misdemeanor subject to a one-year statute of limitations pursuant to § 15-3-2, Ala.Code 1975. Kruse contended that the City’s retention of the fine he paid was wrongful and constituted unjust enrichment. We are resolving this appeal on other grounds; accordingly, we do not reach the issue whether Kruse is correct that the parking citations were misdemeanors subject to a one-year statute of limitations.

In support of his motion for a summary judgment, Kruse submitted to the trial court copies of the City’s two amnesty ordinances, a document explaining the amnesty program, a copy of a canceled check, dated August 2008, from Kruse to the City, three transcript pages from Kruse’s deposition, and 14 pages of the transcript of the deposition of Birmingham Municipal Court Judge Raymond P. Chambliss. The portion of Kruse’s deposition testimony submitted to the trial court establishes that Kruse’s vehicle was cited for a parking violation six times between 2001 and 2002; in addition, other evidence indicates a 2004 parking citation issued on the vehicle. The evidence indicates that Kruse’s daughter had possession of the vehicle at the times it was cited for the parking violations. Judge Chambliss testified in his deposition that, in his opinion, the parking citations were subject to a one-year statute of limitations and were not enforceable at the time Kruse paid the fines for those citations.

In its summary-judgment motion, the City argued, among other things, that Kruse’s claims were barred by the doctrine of collateral estoppel; it submitted to the trial court a copy of the federal court’s judgment in its favor. In addition, the City argued that, assuming that Kruse’s claims were not barred by the doctrine of collateral estoppel, it had properly sought to enforce and collect the fines for the parking violations. In support of its summary-judgment motion, the City submitted only a copy of the federal court’s judgment and copies of the City’s ordinances approving the two consecutive amnesty periods, during one of which Kruse paid the fines for the parking violations. In response to Kruse’s motion for a summary judgment, the City also submitted to the trial court an attorney general’s opinion in which the attorney general stated, among other things, that “[a] municipality may bring a civil action to recover a fine on an adjudicated parking ticket that is subject to the twenty-year statute of limitations on an action on a judgment.” Op. Att’y Gen. No. 2007-103.

No other evidence was presented to the trial court. Thus, the factual narratives the parties submitted to the trial court in support of or in opposition to the motions for a summary judgment are, for the most part, unsupported by citations to supporting evidence other than the federal court’s judgment. Citations contained in the federal court’s judgment indicate that the parties submitted numerous evidentiary exhibits to the federal court. Neither party has disputed the essential findings of fact set forth in the federal court’s judgment. Accordingly, we set forth the relevant portions of that judgment below.

“[Kruse] brings claims pursuant to 42 U.S.C § 1983 and state law concerning his payment of outstanding parking tickets to the City of Birmingham, Alabama. [Kruse] received a notice dated April 28, 2008, that he owed $1,030 in parking fines. Plaintiff exhibit 1 (doc. 16-2), at 3. That notice further informed [Kruse] that he had 24 hours to make payment or to make arrangement for payments. Id. It stated that unless [Kruse] notified the sender that he contested the debt within 30 days of receipt of the letter, the debt would be assumed valid. Id. The evidence establishes that the parking tickets are dated between December 18, 2001, and June 9, 2004.1 Defendant exhibit 5.
“Meanwhile, on April 22, 2008, the City of Birmingham approved an amnesty program for payment of unpaid parking fines and minor traffic tickets, in which no additional fines or threats of arrest would issue for outstanding fines paid during the month of July 2008. Defendant exhibit 1. This program was so successful it was extended through the end of August 2008. Defendant exhibit 2.
“At his deposition, [Kruse] stated that he did not pay the tickets prior to 2008 because they were issued to his daughter’s [vehicle], although the [vehicle] was registered to him. Plaintiff depo. at 12. He assumed his daughter took care of the tickets. Id. at 14, 17. He then learned from his wife about the letter regarding payment because she was concerned [Kruse] would get in trouble. Id. at 14. [Kruse’s] wife told him there was an amnesty program for paying outstanding tickets. Id. at 10. He personally never saw anything in the press about the amnesty period. Id. [Kruse] went and paid the tickets. Id. at 17-18. He did not contest the tickets, he did not say he was not driving the car when the tickets were issued, he did not ask to see a judge, and he did not know how many tickets he was actually paying. Id. at 18-19, 26. He wrote a check for $510 on August 25, 2008. Plaintiff exhibit F (doc. 16-2), at 17.
“Based on these facts, [Kruse] filed suit in the Circuit Court of Jefferson County, Alabama, in a complaint styled as a class action, for unjust enrichment (Count I); money had and received (Count II); violations of 42 U.S.C § 1983 (Count III); and declaratory and injunctive relief (Count IV). The [City] removed the case here based on [Kruse’s] assertion of claims arising under the laws of the United States.
“1 The evidence establishes only $125 in outstanding parking fines. No explanation as to the difference between this amount and the amount on the April 28, 2008, notice has been provided, but neither side has contested the amount claimed due by [the City], nor the amount actually paid by [Kruse].”

With regard to the merits of Kruse’s federal claims, the federal court determined, in pertinent part:

“The court first considers [Kruse’s] federal claim, namely that [the City’s] actions in ‘coercing collection of fines in excess of one year, with the threat of additional penalties, warrant and arrest, when such action was time barred under Ala.Code § 15-3-2 (1975), has violated, and continues to violate, the rights, under the Constitution, of [Kruse].... ’ Complaint, ¶ 28. [Kruse] seeks a refund, with interest, costs and attorney’s fees. Complaint, pg. 7. [Kruse] styles this claim as ‘Violations of 42 U.S.C. § 1983.’ Id.
“Considering [Kruse’s] claim in the context of a violation of his procedural due process rights, [Kruse] fails to set forth any manner in which his procedural due process rights were violated. While [Kruse] asserts that if tickets were not paid within the amnesty time frame, violators would be arrested, [Kruse] testified in his deposition that he had no knowledge of the amnesty program. Plaintiff depo. at 9-10. He testified that he was prompted by his wife to pay the tickets and that he never saw or heard anything in the press.3 Id.
“To prevail upon his procedural due process claim, [Kruse] must establish: (1) a constitutionally protected interest in life, liberty or property; (2) governmental deprivation of that interest; and (3) the constitutional inadequacy of procedures accompanying the deprivation. Bank of Jackson County v. Cherry, 980 F.2d 1854, 1357 (11th Cir.1992), citing Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2985, 2990-91, 77 L.Ed.2d 614 (1983); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). Assuming [Kruse] could satisfy the first two prongs of this test, he has wholly failed to allege any constitutional inadequacy of procedures accompanying the deprivation. Procedural due process requires only notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In his deposition, [Kruse] testified he did nothing to contest payment of the parking tickets. As such, the court can find no governmental action which caused a deprivation of his rights to do so.4
“In addition to his failure to allege any inadequacy of pre-deprivation procedures, the court finds that [Kruse] further failed to allege the absence of adequate post-deprivation state law remedies.... If state courts provide adequate procedures, then there is no federal procedural due process violation regardless of whether [Kruse] has taken advantage of the state remedy or attempted to do so. See Horton v. Board of County Commissioners of Flagler County, 202 F.3d 1297, 1300 (11th Cir.2000) (‘The McKinney [v.Pate, 20 F.3d 1550 (11th Cir.1994),] rule.... does not look to the actual involvement of state courts or whether they were asked to provide a remedy in the specific case now before the federal court. Instead, the McKinney rule looks to the existence of an opportunity — to whether the state courts, if asked, generally would provide an adequate remedy for the procedural deprivation the federal court plaintiff claims to have suffered.’).
“[Kruse] has not alleged that the state law procedures are inadequate. The City of Birmingham created a program for the payment of unpaid parking tickets, during which the City suspended its right to issue warrants or effectuate arrests for parking and other non-moving violations. Under Alabama law, [Kruse] had the right to contest the payment of these tickets. [Kruse] has ‘failed to state a valid procedural due process claim because [he has] not alleged that Alabama law provided [him] with an inadequate post-deprivation remedy.’ Tinney v. Shores, 77 F.3d 378, 382 (11th Cir.1996).
“Having considered the foregoing, the court is of the opinion that [the City’s] motion for a summary judgment is due to be grantéd, and [Kruse’s] motion for a summary judgment is due to be denied. Because the court finds that the [City] is entitled to a judgment in its favor on [Kruse’s] sole federal claim, the court declines to exercise its supplemental jurisdiction over [Kruse’s] state-law claims. See, e.g., Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1242 (11th Cir.2007).
“3 [Kruse] relies on his exhibits A and D in support of his argument that he paid these tickets because of the threat of arrest. One of those was the actual ordinance adopted by the [City], the other one is a press release. Given [Kruse’s] testimony, the court finds [Kruse] could not have felt threatened by the content of either of those documents.
“4 This failure disposes of [Kruse’s] claim that he could not be prosecuted for the parking tickets because they had been issued more than twelve months prior. According to [Kruse’s] argument, the [City’s] failure to ‘prosecute’ him within twelve months of receipt of the ticket barred the [City] from ever collecting on the ticket, based on a statute of limitations for misdemeanors. See, e.g., Plaintiffs reply (doc. 19) at 1-2. Under this logic, if the [City] fails to issue an arrest warrant for outstanding parking tickets within one year of receipt of the ticket, it is forever barred. Aside from ignoring the fact that receipt of the ticket, in and of itself, would constitute commencement of a prosecution, [Kruse] did not pursue this theory in the courts of the state.”

(Footnote 5 in original omitted.)

With regard to Kruse’s state-law claims, the trial court, in entering its summary judgment in favor of the City, determined that Kruse did not act “under coercion or duress” in voluntarily paying the fines for the parking citations and that his voluntary payment constituted a waiver of any objection to the imposition of those fines.

Initially, for the purposes of resolving this appeal, we assume that the doctrine of collateral estoppel does not bar the litigation of Kruse’s state-law claims before the trial court. We turn to Kruse’s arguments pertaining to the propriety of the trial court’s summary judgment in favor of the City.

On appeal, Kruse argues that the trial court erred in entering a summary judgment in favor of the City because, he contends, the City’s attempts to collect fines based on the parking violations are barred by a one-year statute of limitations. He contends that the City has been unjustly enriched by its collection and retention of the amounts he paid for the parking violations. Our supreme court has stated:

“ ‘The retention of a benefit is ‘unjust,’ for purposes of an unjust enrichment claim, if the donor of the benefit acted under a mistake of fact or in misreliance on a right or duty, or the recipient of the benefit engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship.’ ”

Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1224 n. 7 (Ala.2010) (quoting 42 C.J.S. Implied Contracts § 9 (2007)).

Kruse does not explain how his payment of the allegedly time-barred fines was made pursuant to a mistake or fraud so as to make the City’s collection and retention of his payment unjust. Kruse alleges, however, that the City’s threat of incarceration if he did not pay the fines associated with the allegedly time-barred parking violations amounted to duress or coercion for what he contends was an unenforceable demand for payment of the fines. Accordingly, we construe Kruse’s argument as disputing the trial court’s determination that there was no genuine issue of material fact that Kruse voluntarily, and without being subjected to duress or coercion, paid the fines imposed by the City.

“ ‘[D]uress is defined as subjecting a person to improper pressure which overcomes his will and coerces him to comply with demands to which he would not yield if acting as a free agent.’ ” BSI Rentals, Inc. v. Wendt, 893 So.2d 1184, 1189 (Ala. Civ.App.2004) (quoting Head v. Gadsden Civil Serv. Bd., 389 So.2d 516, 519 (Ala.Civ.App.1980)). With regard to whether the threat of prosecution of legal proceedings may constitute duress pursuant to which a party may recover amounts paid to another party, our supreme court has stated:

“It has been the law in Alabama for over 150 years that where one party, with full knowledge of all the facts, voluntarily pays money to satisfy the color-able legal demand of another, no action will lie to recover such a voluntary payment, in the absence of fraud, duress, or extortion. Weaver [v. American Nat’l Bank, 452 So.2d 469 (Ala.1984) ]; H.A. Edwards Ins. Agency v. Jones, 242 Ala. 624, 7 So.2d 567 (1942); National Bank of Boaz v. Marshall County, 229 Ala. 369, 157 So. 444 (1934); Town Council of Cahaba v. Burnett, 34 Ala. 400 (1859); Jones v. Watkins, 1 Stew. 81 (Ala.1827); Clifton [v. Curry, 30 Ala.App. 584, 10 So.2d 51 (1942) ]; Thornton v. Singer Sewing Mach. Co., 34 Ala.App. 162, 37 So.2d 239 (1948). A ‘voluntary payment’ has been defined as ‘a payment made by a person of his own motion, without compulsion; a payment made without a mistake of fact or fraud, duress, coercion, or extortion, on a demand which is not enforceable against the payor.’ 70 C.J.S. Payment § 100 (1987).”

Mount Airy Ins. Co v. Doe Law Firm, 668 So.2d 534, 537-38 (Ala.1995).

In Mount Airy, supra, our supreme court held that amounts paid by a liability insurer were not made involuntarily or under duress when the payment was made to avoid the threat of the insured’s instituting a legal action against it. Our supreme court explained:

“Alabama law recognizes that the mere threat of legal proceedings is insufficient to constitute the duress needed to make the payment of money involuntary. National Bank of Boaz [v. Marshall County ], [229 Ala. 369, 157 So. 444 (1934) ]; Southern Ry. v. City of Florence, 141 Ala. 493, 37 So. 844 (1904); Clifton [v. Curry], [30 Ala.App. 584, 10 So.2d 51 (1942)]....
“ ‘... No one can be heard to say, that he had the right and the law with him, but he feared his adversary would carry him into court, and that he would be unlawfully fined and imprisoned; that being thereby deprived of his free will, he yielded to the wrong, and the courts must assist him to a reclamation.’
“Town Council of Cahaba v. Burnett, 34 Ala. 400, 404 (1859).... We also agree with the following:
“ ‘If there is in fact a cause of action when the threat is made, the plaintiff, by bringing suit, would only enforce a legal right; if there was no cause of action or [there was a] demand for more than is due, the party threatened should exercise the ordinary degree of firmness which the law presumes every man to possess, and meet the issue of the unjust suit.’
“66 Am.Jur.2d Restitution and Implied Contracts § 109 (1973).”

Mount Airy, 668 So.2d at 538-39 (some emphasis in Mount Airy, some emphasis added).

The evidence in the record on appeal demonstrates that Kruse voluntarily paid the fines for the parking violations during a period in which the City granted amnesty from threats of incarceration or further fines in exchange for payment of past-due fines associated with parking or minor traffic violations. The federal court’s findings of fact indicate that Kruse did not dispute his liability for those fines at the time he made that payment. Thus, as the trial court determined, in failing to dispute his liability at the time he paid the fines, Kruse voluntarily paid those fines. Mount Airy, 668 So.2d at 538-39. Under the holding of Mount Airy, supra, Kruse may not be said to have been under duress in electing to voluntarily pay the parking fines in order to avoid the threat of possible imprisonment for nonpayment of those fines. Accordingly, we conclude that the trial court properly entered a summary judgment in favor of the City on Kruse’s claims. We affirm the trial court’s judgment.

AFFIRMED.

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

      . We conclude that Kruse’s action is not barred by the notice-of-claim requirement in § 11-47-23, AIa.Code 1975, because the action was filed within six months of Kruse’s payment of the amounts at issue to the City. See Diemert v. City of Mobile, 474 So.2d 663, 665 (Ala.1985) ("'"If a suit on a claim against a city is commenced within the six-month period prescribed in [§ 11-47-23], it is a sufficient presentation of the claim under the statute.” ' ") (quoting City of Huntsville v. Davis, 456 So.2d 69, 70-71 (Ala.Civ.App.1983), quoting in turn Browning v. City of Gadsden, 359 So.2d 361, 364 (Ala.1978)).


text:
    P.S.R. v. C.L.P.
    2091118 and 2091119.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Kelly & Morgan, Florence, for appellant.

      Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville, for appellee.
   MOORE, Judge.

P.S.R., the paternal grandmother of A.P.P. and Cy.L.P. (“the children”), appeals from a judgment of the Franklin Juvenile Court (“the juvenile court”) that dismissed the dependency petitions she had filed in the juvenile court relating to the children. We reverse.

Procedural History

On February 2, 2010, P.S.R. (“the grandmother”) filed an emergency petition for temporary custody in the Franklin Circuit Court (“the circuit court”) in case number DR-04-189.02, alleging:

“1. On or about August 27, 2008, this Honorable Court issued an order awarding custody of the minor children ... to the father, J.M.P., (‘the father’) during the school year. [C.L.P. (‘the mother’) ] was awarded custody during the summer months and at other various times, including holidays.
“2. There has been a material change in circumstances since the last order of the Court. The mother has failed and refused to exercise her visitation rights with the minor children and has not spoken or visited with the children in over two years. Her current whereabouts are unknown and she was last thought to be living in Gainesville, Florida. It is further alleged that the mother is addicted to drugs and has criminal charges pending against her in the State of Florida.
“8. The father ... died on January 29, 2010. At the time of his death, he maintained custody of the children and [the grandmother] assisted with the raising of the minor children.
“4. The children are enrolled in school at Phil Campbell and it would be in their best interest for custody to be awarded to the [grandmother]. The children are mourning the death of their father and it would be in their best interest and the least disruptive for them to remain in the care, custody and control of the [grandmother]. They have a very close relationship with the [grandmother] and are in a familiar setting surrounded by family and friends.
“WHEREFORE, the premises considered, [the grandmother] prays that this Honorable Court will enter a temporary order granting custody of the minor children to the [grandmother].”

On February 4, 2010, the circuit court awarded the grandmother pendente lite custody of the children. On May 24, 2010, C.L.P. (“the mother”) filed an answer to the grandmother’s petition. On July 7, 2010, the circuit court entered an order stating:

“The [mother] has made an oral motion to dismiss this petition based on the [grandmother’s] lack of standing to file a custody petition in this case. Upon consideration, it is hereby ordered that this case is dismissed. The [grandmother] must file a dependency petition and meet the burden of proof as set out by the Code of Alabama.”

On July 12, 2010, the grandmother filed in the circuit court a motion to reinstate the case based upon a settlement agreement reached between the parties. That agreement apparently provided that the grandmother should be allowed visitation with the children.

On July 14, 2010, before the circuit court could rule on the motion to reinstate, the grandmother filed two separate petitions in the juvenile court, alleging that the children were dependent and requesting that the juvenile court award the grandmother the immediate custody of the children. Specifically, the petitions stated:

“Comes now the [grandmother] ... and moves the court for an order granting pendente lite (immediate) emergency custody of the minor child described herein. As a basis for said motion, the undersigned shows unto the court as follows:
“1. This is a dependency proceeding pursuant to Alabama Code Sec. 12-15-101 et seq. The child is ‘dependent’ within the meaning of Alabama Code Sec. 12-15-102(8). This court has jurisdiction in this proceeding pursuant to Alabama Code Sec. 12-15-103 to hear this proceeding. [The grandmother] avers that the minor child is dependent and that the mother is not a fit and proper party to have the care, custody and control of said minor child.
“3. The father of said child was [J.M.P. (‘the father’) ]. On January 29, 2010, [the father] passed away.
“4. Previously, in 2005, [the father] and [the mother] were divorced in Franklin County, Alabama. In the original divorce, temporary custody of the minor child was vested in the maternal grandmother for a period of one year. At the end of one year, the [mother and the father] began sharing joint physical and legal custody of said child, alternating weeks of custody. An order incorporating these agreements is reflected in Franklin County Circuit Court cases, DR 04-189.00 and DR 04-189.01.
“In 2007, the [mother and the father] were to share custody on a week to week basis. However, shortly after said order was entered, the mother basically abandoned the child[ ] and left [her] with the father. For a period of three years, she had little or no contact with the child[ ] and did not exercise any custody rights. During this time, the child was with the father or with the paternal grandmother who exercised primary physical custody and care of the minor child.
“5. At the time of the father’s death, the whereabouts of the mother were difficult to ascertain and could not be found. The paternal grandmother filed a petition for custody in the domestic relations case and service by publication was had upon the mother. The mother did file an answer and contested the jurisdiction of the court in that the grandmother was not a party to the divorce. Said case was dismissed on July 7, 2010.
“6. [The grandmother] avers that the minor child is dependent and that the mother is not a fit and proper party to have the care, custody and control of said minor child. Specifically, the mother has not been supportive of the minor child, has had numerous criminal offenses since 2007 including, but not limited to assault, burglary, possession of narcotic equipment and bad check charges. These appear to have occurred for the most part in the state of Florida. The mother has consistently had a substance abuse problem which has not been treated and continues to impede her ability to properly parent the minor child.
“7. The [grandmother] avers that she has and will continue to provide a loving and nurturing home for the minor child[ ]. [The grandmother] is fully capable of continuing to exercise custody of the minor child and to provide her a loving [and] stable home environment, something that the [grandmother] avers the mother cannot provide.
“8. The [grandmother] avers that after the issuance of the order on July 7, 2010, the mother has taken the child and left the jurisdiction of Alabama. It will be necessary that service, once again, be had upon the mother and that this court will need to set a hearing to require the mother to return the child to Alabama for disposition in this case.
“WHEREFORE, [the grandmother] prays as follows:
“(A) That this court will take jurisdiction of this matter, and upon consideration hereof will issue an oi'der directing that immediate temporary custody of the minor child be vested in the paternal grandmother ... and that visitation be had by the mother under such terms and conditions as the court deems appropriate;
“(B) That upon final hearing in this cause, that legal and physical custody will be vested in [the grandmother] who has been the custodial party for the minor child during the vast majority of her life;
“(C) That Your Honor will direct that such other orders as the court deems appropriate and in these premises [the grandmother] has shown herself to be entitled, including issues of child visitation and child support.”

Subsequently, on July 15, 2010, the circuit court entered an order granting the grandmother’s motion to reinstate case number DR-04-189.02 to the circuit court’s active docket. In that order, the circuit court adopted the visitation agreement of the parties and awarded the grandmother specified visitation with the children. The order did not address the grandmother’s prior custody petition that had been dismissed.

On July 30, 2010, the juvenile-court judge that was initially assigned to the dependency cases entered an order recus-ing herself from presiding over the cases; that order stated, in pertinent part, “that the [Juvenile] Judge would not be able to maintain objectivity in that the [grandmother was] represented by the law firm of the Judge’s spouse in [the] Circuit Court case over the same issues,” and the juvenile-court judge requested that “the Administrative Office of Courts arrange the appointment of another Judge to preside in this cause should the presiding Circuit Judge be unable to sit in this matter.” Although the juvenile court’s case-action-summary sheets do not reflect that the cases were transferred to another judge, on August 6, 2010, the circuit judge of Franklin County, the same judge that had presided over the circuit-court action, entered the following judgment in the dependency actions:

“The Court has reviewed the Petition[s] for Dependency in these cases. The Court is aware of the parties through case number DR-04-189.02. The petition[s] do[] not set the procedural history of DR-04-189 correctly.
“It is indeed true that the Court dismissed DR-04-189.02 on July 7, 2010. However, on July 12[sic], 2010, the Court granted a motion by [the grandmother’s] attorney to reinstate that case. Both parties stood before the Court on July 8, 2010, and had their attorney recite an agreement between the parties to allow [the grandmother] to have grandparent visitation. [The grandmother] stated affirmatively on the record that she wished the Court to accept this agreement. The Court granted the Motion to Reinstate so that a formal written agreement could be submitted to the Court evidencing this agreement.
“Both [dependency petitions] are dismissed on their face based on DR-04-189.02 being an active case with an agreement being recited on the record. The dependency petitions do not allege anything has happened after the Court took the agreement on the record on July 8, 2010. Any further action must be conducted pursuant to DR-04-189.02.”

On August 18, 2010, the grandmother filed motions requesting that the circuit court “alter, vacate or amend its Order of August [6], 2010, and reinstate [the dependency cases] to the Juvenile Court docket for further disposition.” As grounds for the motions, the grandmother asserted:

“1. That the [judgment] entered by the court is in error in that the Juvenile Court, rather than the Circuit Court, has jurisdiction over matters such as are alleged in the [dependency petitions] heretofore filed by the [grandmother].
“2. In support of said motion, [the grandmother] shows unto the court that the case of N.T. v. P.G. and J.M., 54 So.3d 918 [ (Ala.Civ.App.2010),] is dis-positive as is Beck v. Beck, 865 So.2d 446 (Ala.Civ.App.2003). In Beck, the court held that where grandparents attempted to intervene in a divorce action as parties in a custody action where no proceeding regarding custody was currently before the court, the trial court lack[ed] authority to consider the grandparents’ petition.
“3. The case presently pending before the court filed by the [grandmother] is analogous in that there was no petition or other action pending in DR-04-189.02. As such, [the circuit] court lacked jurisdiction, as it initially noted in the July 7, 2010, Order in DR-04-189.02. A court may not act where it does not otherwise have jurisdiction. As such, the [circuit] court’s order entered pursuant to the July 8, 2010, agreement on the record was done without appropriate jurisdiction.
“4. [The grandmother] asserts that any matter regarding the dependency and custody of the minor child in question must be made through the Juvenile Court of Franklin County, Alabama.”

The circuit-court judge entered an order on August 19, 2010, denying the grandmother’s postjudgment motions; she filed her notices of appeal to this court on August 27, 2010.

Discussion

On appeal, the grandmother argues that, pursuant to Ala.Code 1975, § 12-15-114(a), the juvenile court has original jurisdiction over dependency proceedings.

Section 12-15-114(a) provides, in part, that “[a] juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision.” In this case, the circuit court construed the original petition filed by the grandmother in case number DR-04-189.02 as a dependency petition. Although that petition did not expressly allege the dependency of the children, it did assert that the natural parents of the children had been awarded legal custody of the children, that the father had died, that the mother had abandoned the children, that the mother was addicted to drugs, that the mother had criminal charges pending against her, and that the custody of the children should be placed with the grandmother. Those allegations are sufficient to imply an allegation that the children were dependent. See Ex parte L.E.O., 61 So.3d 1042, 1047 (Ala.2010) (holding that a child is “in need of care or supervision” within the meaning of Ala.Code 1975, § 12-15-102(8)a., when the child is not “receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child ”). The circuit court thus properly recognized that it did not have jurisdiction over the dependency petition filed by the grandmother and properly dismissed that petition with instructions that the grandmother file her petition in the juvenile court.

Although the circuit-court judge stated in his August 16, 2010, judgment dismissing the juvenile-court cases that he had granted the motion to reinstate case number DR-04-189.02 on July 12, 2010, the record shows only that the motion to reinstate was filed on that date. The circuit court did not grant the motion to reinstate until July 15, 2010. By that time, the grandmother had already properly filed her dependency petitions in the juvenile court. Moreover, when the circuit court “reinstated” case number DR-04-189.02, it merely reopened the case to award the grandmother visitation rights. The circuit court did not actually reinstate the dismissed dependency petition filed by the grandmother in case number DR-04-189.02. Even if it intended to reinstate that petition, it could not have done so because the circuit court still lacked subject-matter jurisdiction to adjudicate that petition, which subject matter lies exclusively within the province of the juvenile court.

Although a circuit court ordinarily retains continuing jurisdiction over the custody of a child, in the event a genuine dispute between a parent and a third party arises as to the dependency of the child, the juvenile court assumes exclusive jurisdiction to adjudicate that dispute. See C.D.S. v. K.S.S., 963 So.2d 125 (Ala.Civ.App.2007). The allegations made by the grandmother in the dependency petitions filed in the juvenile court present an issue as to the dependency of the children. That issue has not been resolved by any judgment entered in the circuit court, and it cannot be resolved in that court due to a lack of subject-matter jurisdiction. Hence, the circuit-court judge erred in dismissing the dependency cases on the ground that any further action on the petitions in those cases would have to take place in case number DR-04-189.02. Because the juvenile court properly has jurisdiction over the dependency petitions, those petitions can only be involuntarily dismissed upon the determination, after a hearing, that the children are not dependent. See Ala.Code 1975, § 12-15-310(b).

Based on the foregoing, we reverse the juvenile court’s judgment and remand these cases for the juvenile court to vacate its judgment dismissing the dependency petitions, to reinstate those petitions, and to conduct an evidentiary hearing on the grandmother’s dependency petitions.

2091118 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2091119 — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . A separate petition was filed with regard to each child; the petitions were identical, except that each petition referred to a different child.

      . A separate motion was filed in each dependency case; the motions were identical.

      . Because no one has appealed from the judgment awarding the grandmother visitation rights, we do not address whether the circuit court lacked subject-matter jurisdiction to enter that judgment under Beck v. Beck, 865 So.2d 446 (Ala.Civ.App.2003).


author: BRYAN, Judge. THOMPSON, Presiding Judge,

text:
    Julia W. FAELLACI v. Jared S. FAELLACI.
    2090675.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.
    Bryant F. Williams, Jr., Ozark, for appellant.
    Matthew C. Lamere, Dothan, for appel-lee.
   BRYAN, Judge.

Julia W. Faellaci (“the wife”) and Jared S. Faellaci (“the husband”) were married on July 22, 1995, and three children were born during the parties marriage: a boy, born in May 2000; and two girls, one born in September 2002 and the second born in April 2004 (collectively referred to hereinafter as “the children”). On May 8, 2006, the Houston Circuit Court (“the trial court”) entered a judgment of legal separation that incorporated a separation agreement that had been signed by the parties on or about April 10, 2006 (“the separation agreement”). Pursuant to the separation agreement, the wife exercised sole custody of the children, subject to the husband’s visitation rights that were set forth in the separation agreement. The separation agreement also contained the following provision regarding the husband’s child-support obligation:

“The parties agree that the [hjusband’s income exceeds the Alabama Child Support Guidelines, and the [h]usband agrees to promptly pay child support for the minor children of the parties in the sum of $5,000.00 monthly. [The h]us-band further agrees as additional child support, to pay 50% of the net after tax income of any commission or bonus in excess of his base salary and will supply the necessary W-2’s or 1099’s at the end of each year as proof of compliance with this provision.”

On February 28, 2008, the husband filed a petition to set aside the separation agreement and a complaint for a divorce. The wife filed a motion to dismiss the husband’s petition to set aside the separation agreement, an answer to the husband’s complaint for a divorce, and a petition for a rule nisi alleging that the husband had failed to fully comply with the terms of the separation agreement regarding his child-support obligation. The husband subsequently filed a motion to convert his petition to set aside the separation agreement to a petition for modification of the separation agreement. The husband alleged that a material change of circumstances existed to support modification of the separation agreement regarding child support, custody, and visitation. The husband requested joint custody of the children, expanded visitation rights, calculation of his child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin., and a dissolution of the marriage.

Following a joint motion filed by the parties, the trial court entered a judgment divorcing the parties and reserving jurisdiction to enter a final judgment resolving the issues that remained pending before the trial court. The trial court further ordered that the judgment of legal separation and the provisions of the separation agreement remained valid until a final judgment was entered.

Following an ore tenus hearing, the trial court entered a judgment on November 10, 2009, that awarded the parties joint legal custody of the children, awarded the wife primary physical custody of the children, and awarded the husband specific visitation rights. The trial court further ordered the husband to pay child support in the amount of $4,000 a month, and it ordered the husband to pay the wife his child-support arrearage, which was determined to be $100,000. Pursuant to the trial court’s judgment, all other provisions of the separation agreement remained in “full force and effect.”

The wife filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., alleging, among other things, that the trial court had exceeded its discretion by failing to award her interest on the husband’s child-support arrearage. The trial court conducted a hearing on the wife’s post-judgment motion on January 5, 2010. On January 6, 2010, the trial court entered an order that stated: “After hearing, [the wifej’s motion for a new trial is denied, except interest calculations and the two issues [regarding visitation] upon which the parties have agreed. Attorneys shall submit [an] amended decree within 14 days.” The husband subsequently filed a “response to request for interest on ar-rearage,” arguing that the he does not owe interest on his child-support arrearage because, based on the child-support language in the separation agreement, there was no ascertainable due date for his child-support obligation. The trial court conducted a hearing on the husband’s motion on February 25, 2010, but the record does not contain any further orders entered by the trial court. The wife filed a notice of appeal on April 16, 2010.

The wife raises several issues for this court to review on appeal; however, we must first determine whether this court has jurisdiction to hear the wife’s appeal. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (stating that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero rnotu ”). When a judgment fails to completely adjudicate all issues between the parties, the judgment is nonfinal. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009). Ordinarily, an appeal will lie only from a final judgment. Id.

This court has consistently held that a trial court’s failure to rule on contempt petitions filed in a divorce action render the divorce judgment nonfinal. See Brunson v. Brunson, 991 So.2d 723, 724-25 (Ala.Civ.App.2007). However, before making a determination regarding the finality of a judgment that does not explicitly address a pending contempt petition, this court will consider whether any part of the trial court’s judgment implicitly rules on the pending contempt petition that was not explicitly ruled on in the judgment. Id., (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004)); see also A.C. v. C.C., 34 So.3d 1281, 1287 (Ala.Civ.App.2009) (dismissing an appeal as being from a nonfinal judgment when several pending contempt motions were left unadjudicated and there was nothing in the trial court’s purported final judgment that “constitute^ an implicit ruling on any of the contempt motions”).

At the conclusion of the ore tenus hearing in this case, the trial court issued its judgment from the bench and ordered the parties’ attorneys to draw up an order reflecting its ruling. During that discussion, the wife’s attorney stated that the trial court had not ruled on the wife’s pending petition for a rule nisi, and he pointed out that the trial court’s failure to do so would render the judgment nonfi-nal. The trial-court judge responded that his award of a child-support arrearage to the wife was intended as a ruling on her petition for a rule nisi. See Frasemer v. Frasemer, 578 So.2d 1346, 1349 (Ala.Civ.App.1991) (child-support arrearage must be awarded even if payor’s behavior was not contemptuous). We conclude that such an expression, followed by an order that did not specifically hold the husband in contempt, satisfies this court, in these particular circumstances, that the trial court implicitly concluded that the husband’s behavior did not rise to the level of contempt in this case. Although an explicit ruling on pending contempt petitions is always more desirable, we find that the trial court’s judgment sufficiently indicates an intention to conclusively rule on the wife’s pending petition for a rule nisi. See Horwitz v. Horwitz, 897 So.2d 337, 344 (Ala.Civ.App.2004) (failure to explicitly rule on a pending contempt petition on one count did not affect finality of the judgment because the finding of contempt on a second count was sufficient to indicate an implicit denial of a finding of contempt on the first count). Accordingly, we conclude that the judgment entered on November 10, 2009, was a final judgment.

However, we must now determine whether the trial court’s postjudgment order granting the wife’s postjudgment motion in part without entering an order effectuating the relief granted affects this court’s jurisdiction to hear the wife’s appeal. In her brief on appeal, the wife argues that her appeal is properly before this court, despite the fact that the trial court granted her postjudgment motion in part, because its failure to enter an order actually modifying any part of the divorce judgment rendered her postjudgment motion denied by operation of law on the 90th day after she filed her postjudgment motion. See Rule 59.1, Ala. R. Civ. P. (“A failure by the trial court to render an order disposing of any pending post-judgment motion within [90 days] ... shall constitute a denial of such motion as of the date of the expiration of the period.”). We disagree. Rule 59.1 is applicable only when the trial court fails “to render an order disposing of any pending post-judgment motion within [90 days]....” The record indicates that the trial court disposed of the wife’s postjudgment motion by granting her postjudgment request for an award of interest on the husband’s child-support arrearage, as well as an agreed-upon modification of the husband’s visitation rights, and by denying all other postjudgment relief requested by the wife.

However, although the wife’s post-judgment motion was disposed of, the trial court’s postjudgment order left something more for the trial court to do, i.e., to enter an order making a determination of the amount of interest owed by the husband and setting forth the husband’s modified visitation rights as agreed upon by the parties. Cf. Anderson v. Anderson, 65 So.3d 435, 440 (Ala.Civ.App.2010) (dismissing the husband’s appeal as being from a nonfinal judgment when the husband filed a notice of appeal after the trial court had granted the husband’s postjudgment motion in part because the postjudgment order did “not reflect an intent to finally adjudicate all the issues before the trial court”). When the parties failed to submit an amended judgment regarding the husband’s modified visitation rights and the interest obligation within 14 days, as ordered by the trial court, it became incumbent upon the trial court to enter the order that would make the judgment final. See Sims v. Sims, 38 So.3d 71, 72 (Ala.Civ.App.2009) (dismissing an appeal as being from a nonfinal judgment after the trial court had granted the wife’s postjudgment motion in part but had failed to issue an order effectuating the relief granted). No such order appears in the record on appeal.

Accordingly, we conclude that, at the time the wife filed her notice of appeal, there had not been a complete adjudication of all the matters in controversy between the parties. See Peoples v. Peoples, 886 So.2d 837, 839-40 (Ala.Civ.App.2003) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990), quoting in turn Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)) (“A ‘final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ”). See also Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999) (quoting Wesley v. Brandon, 419 So.2d 257, 258 (Ala.Civ.App.1982)) (“The question whether an order is a final order may be phrased as whether there is ‘something more for the [trial] court to do.’ ”). Thus, we conclude that the wife’s notice of appeal was prematurely filed and that her appeal was taken from a nonfinal judgment. “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case....” Peoples v. Peoples, 886 So.2d at 840. Therefore, we must dismiss the wife’s appeal.

The wife’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., dissents, with writing, which MOORE, J., joins.

THOMPSON, Presiding Judge,

dissenting.

In a judgment entered on November 10, 2009, the trial court, among other things, ordered Jared S. Faellaci (“the husband”) to pay Julia W. Faellaci (“the wife”) $100,000 within 120 days “to clear up any and all claims of unpaid child support.” The record indicates that on December 9, 2009, the wife filed a motion for a new trial or, in the alternative, to alter or amend the judgment. After a hearing on the wife’s motion, the trial court entered an order on January 6, 2010, denying the relief requested in the wife’s postjudgment motion, “except [as to] interest calculations and the two issues upon which the parties have agreed.” The order did not include the amount of interest, if any, to be paid. On January 15, 2010, the husband submitted a response to the wife’s request for interest on the arrearage, arguing that interest could not be calculated because no due date had ever been established for the payments of child support the husband would owe if he were paid any commission or bonus in excess of his base salary, and, the husband argued, the trial court could not set an arbitrary due date for the purpose of awarding interest. On January 26, 2010, the trial court entered an order setting the matter for a hearing on February 25, 2010. The record does not indicate whether the hearing was held, and the trial court did not enter a subsequent order.

Rule 59.1, Ala. R. Civ. P., provides, in pertinent part:

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

In this case, on December 9, 2009, the wife filed her postjudgment motion that sought, among other things, interest on the husband’s child-support arrearage. Nothing in the record indicates that either party gave express consent to extend the period for the trial court to rule on that motion. Therefore, the trial court had until Tuesday, March 9, 2010, to render an order disposing of the wife’s postjudgment motion. See Burge v. Hayes, 964 So.2d 672, 675 (Ala.Civ.App.2006) (holding that a motion to continue a hearing on a post-judgment motion was ineffective to extend the period for the trial court to rule on the motion absent the express consent of the parties). A trial court loses jurisdiction to rule on a postjudgment motion if it does not rule on the motion within the time prescribed by Rule 59.1, Ala. R. Civ. P. Moore v. Moore, 910 So.2d 137, 140 (Ala.Civ.App.2004). “Moreover, ‘ “the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be ‘ihadvertent [or] deliberate.’ ” ’ Ex parte Chamblee, 899 So.2d 244, 247 (Ala.2004) (quoting Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala.1990)).” Eight Mile Auto Sales, Inc. v. Fair, 25 So.3d 459, 462 (Ala.Civ.App.2009). Because the trial court did not determine the amount of interest the husband owed on his child-support arrearage within the time allowed by Rule 59.1, the wife’s request for interest was denied by operation of law. Therefore, I believe that the judgment is final and that the appeal should be determined on the merits. Because I do not believe that the appeal is due to be dismissed, I must respectfully dissent.

MOORE, J., concurs.

      . Apparently, both parties were satisfied with the provisions in the separation agreement regarding division of the marital property. The division of marital property was never an issue presented to the trial court.