author: SHAW, Justice.

text:
    Deborah Ann Stevens BOUDREAUX et al. v. Mendal KEMP and Thomasine Kemp Edwards.
    1080309.
    Supreme Court of Alabama.
    April 16, 2010.

      Matthew G. Weathers and Juliet V. Crawford of Crawford & Weathers, LLC, Birmingham, for appellants.
    Jack Floyd, Gadsden, for appellees.
   SHAW, Justice.

Deborah Ann Stevens Boudreaux, Shelia Joy Stevens, Janie Dena Harper Stallings, Melinda Luanne Merritt Nix, Michael John Stevens, Craig Allen Stevens, Charles Edmond Harper, James Richard Harper, Sherry Jean Harper Shows, Mar-iann Merritt Holder, Warren Thomas Stevens, Rachel Jonnette Stevens Thrasher, and Paula L. Tidwell, the purported heirs of Frank E. Stevens (hereinafter collectively referred to as “the appellants”), appeal from an order of the Cherokee Circuit Court denying their motion for relief from a default judgment in favor of Mendal Kemp and Thomasine Kemp Edwards, the plaintiffs below, in Kemp and Edwards’s action seeking to enforce an alleged oral contract to devise. We reverse and remand.

Facts and Procedural History

Kemp and Edwards are the nephew and niece of Bernice Stevens and the nephew and niece by marriage of Bernice’s husband, Frank E. Stevens. According to Kemp and Edwards, in or around 1995, Bernice and Frank, who were childless, orally agreed to devise their entire estate to Kemp and Edwards in exchange for the promise to care for Bernice and Frank until their respective deaths. Bernice died in June 1997. Kemp and Edwards allege that, immediately before her death, Bernice reminded them of their promise, and, following her death, Frank renewed the aforementioned oral agreement, again allegedly promising “that in consideration for [Kemp and Edwards’s] looking after [Frank] during the remainder of his natural life, ... [Frank] would transfer to [Kemp and Edwards] all the money and property he owned at the time of his death.” According to Kemp and Edwards, at all times pertinent hereto, they acted' in accordance with and fully performed the terms of the alleged oral agreement.

Frank died in March 2007, leaving a will executed in 1973. Frank’s will left nothing to Kemp and Edwards; instead, he bequeathed his entire estate to Bernice. Frank’s will contained no provision for the disposal of his assets should Bernice precede him in death.

In May 2007, Frank’s will was submitted for probate to the Cherokee Probate Court; Tim Burgess was named personal representative of Frank’s estate. A guardian ad litem for any potential hems was appointed by the probate court. The guardian ad litem retained a genealogist to discover any potential heirs, and on July 9, 2007, the guardian ad litem filed a report in the probate court, identifying a total of 15 grandnieces and grandnephews of Frank. The report listed addresses for the 15 identified heirs, all of whom were not residents of Alabama, and specifically included the appellants.

In September 2007, Kemp and Edwards filed a claim against Frank’s estate in the probate court and also filed the underlying action in the Cherokee Circuit Court seeking a judgment declaring that under the alleged oral contract to devise, “the remaining money assets and property of the estate of Frank E. Stevens are the property of [Kemp and Edwards].” The complaint named as defendants Burgess, in his capacity as personal representative of Frank’s estate, five alleged heirs by name, and any remaining unknown heirs. It did not, however, reference or include the remaining heirs identified in the genealogy report filed in the proceeding in the probate court. Upon motion of Kemp and Edwards, filed on September 21, 2007, and accompanied by an affidavit attesting to their inability after “diligent inquiry” to determine the names and addresses of Frank’s heirs, Kemp and Edwards were permitted by the court to serve the five named heirs and any remaining unknown heirs by publication. Thereafter, beginning September 27, 2007, notice of the declaratory-judgment action was published in the Cherokee County Herald, a local newspaper, for four consecutive weeks.

On October 8, 2007, Burgess filed an answer to Kemp and Edwards’s complaint denying the existence of an oral contract to devise and averring that, if Kemp and Edwards’s allegations were true, their claims would be barred by the Statute of Frauds. Burgess’s answer admitted that Frank was not survived by his parents or grandparents, by any siblings, or by any nieces and nephews; however, in that pleading, Burgess specifically stated that “affidavits of heirship of Frank E. Stevens have been filed in the Probate Court ... which ... set forth the names and addresses of the heirs at law of Frank E. Stevens.”

None of the appellants or the other heirs appeared or answered in response to Kemp and Edwards’s service by publication, and, on February 5, 2008, Kemp and Edwards applied for the entry of default and a default judgment. On that same date, the circuit clerk executed an “entry of default” against the heirs of the estate— both named and unnamed.

On February 20, 2008, the circuit court conducted a bench trial. No heirs appeared or moved to set aside the pretrial entry of default. However, as noted by Kemp and Edwards, the record does reflect that “several” of the appellants attended the trial. Except for the testimony of Melissa O’Neal Harper, the wife of James Richard Harper, Frank’s grandnephew, which was presented by the personal representative, no heirs and none of the appellants actually participated or were heard by the circuit court during the bench trial. At the close of the evidence, the circuit court took the matter under submission.

On July 8, 2008, the circuit court entered a judgment in favor of Kemp and Edwards, concluding that Kemp and Edwards had demonstrated by clear and convincing evidence that “the agreement alleged by [Kemp and Edwards] existed and that they [had] performed in accordance with the agreement.” In its order, as requested in the trial brief filed by Kemp and Edwards, the circuit court further imposed a constructive trust in favor of Kemp and Edwards on the assets of Frank’s estate, subject to payment of the debts of the estate, if any, and the expenses of administration of the estate.

On August 7, 2008, Burgess filed a motion to vacate the judgment or, in the alternative, for a new trial. On that same date, the appellants also filed a post-judgment motion for a new trial and an accompanying motion seeking to stay the execution of the circuit court’s judgment. In their motion, the appellants argued, among other things, that the default judgment was improper and that they were entitled to a new trial because, they said, service by publication was improper under the circumstances.

Kemp and Edwards moved to strike any pleadings filed by the appellants on grounds that the appellants were dispensable, unnecessary parties, that they lacked standing to pursue the requested relief because their interests were being represented by Burgess, as personal representative of Frank’s estate, and that they had failed to move to intervene under Rule 24, Ala. R. Civ. P. Following a hearing, the circuit court struck the appellants’ pleadings on grounds that they had failed to intervene, and because, it concluded, their interests were adequately represented by Burgess. The circuit court also denied Burgess’s postjudgment motion. This appeal followed.

Discussion

The appellants allege four separate grounds of error with regard to the circuit court’s judgment in favor of Kemp and Edwards. Initially, we address their argument that service by publication was improper. Our resolution of this issue is determinative of the appeal.

Although filed more than six months after the entry of default by the circuit clerk and styled as a motion for a new trial, we construe the appellants’ August 7, 2008, postjudgment motion as a Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment because it was timely filed within 30 days after the default judgment became final. See Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala.1982) (“A judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants.” (citation omitted)); Ford Motor Credit Co. v. Carmichael, 383 So.2d 539, 542 (Ala.1980) (“[A] judgment by default, rendered in advance against one of several defendants, is interlocutory, until final disposition is made as to all the defendants.”); McConico v. Correctional Med. Servs., Inc., 41 So.3d 8, 12 (Ala.Civ.App.2009) (“ [Bjecause an entry of default is no more than an interlocutory order, it is not a final judgment, and relief from such an order is available under Rule 55(c)[, Ala. R. Civ. P.,] regardless of when the request is made.”); and Lawler Mobile Homes, Inc. v. Ellison, 361 So.2d 1092, 1094 (Ala.Civ.App.1978) (noting both that “the default judgment ... because of the operation of Rule 54(b), [Ala. R. Civ. P.,] was not a final judgment and did not become final and appealable until the entry of the judgment dismissing the remaining defendant .... ” and that “defendant had thirty days thereafter to file a motion to set aside the default judgment”).

In Cameron v. Tillis, 952 So.2d 352, 353 (Ala.2006), this Court set out the following standard of review applicable to an order refusing to set aside a default judgment:

“ ‘The standard of review in the case of an order setting aside, or refusing to set aside, a default judgment proceeds on the basis that the trial judge has great discretion, and his judgment will not be disturbed unless he has clearly [exceeded] such discretion.’ Roberts v. Wettlin, 431 So.2d 524, 526 (Ala.1983). However, ‘[w]hen the grant or denial [of a request for relief from a judgment] turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand.’ Smith v. Clark, 468 So.2d 138, 141 (Ala.1985).”

Applying the foregoing standard to the facts of the present case, we conclude that the default judgment entered against the heirs is void.

“The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void. Cameron v. Tillis, 952 So.2d 352 (Ala.2006); Image Auto, Inc. v. Mike Kelley Enters., Inc., [823 So.2d 655, 657 (Ala.2001) ]. In Bank of Amer ica [Corp. v. Edwards, 881 So.2d 403 (Ala.2003) ], our supreme court also stated:
“ ‘ “One of the requisites of personal jurisdiction over a defendant is ‘perfected service of process giving notice to the defendant of the suit being brought.’ Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983). ‘When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).” ’
881 So.2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993). See also Northbrook [Indem. Co. v. Westqate, Ltd.,] 769 So.2d [890] at 893 [ (Ala.2000) ].
“Rule 4.3(d), Ala. R. Civ. P., governs the procedure for service by publication and provides, in pertinent part,
“ ‘(1) Affidavit Necessary. Before service by publication can be made in an action where the identity or residence of a defendant is unknown ... or where the defendant avoids service, an affidavit of a party or the party’s counsel must be filed with the court averring that service of summons or other process cannot be made because either the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or, the identity of the defendant is unknown ... or, the defendant avoids service, averring facts showing such avoidance.
“ ‘(2) How Published. Upon the filing of the affidavit the clerk shall direct that service of notice be made by publication in a newspaper of general circulation in the county in which the complaint is filed; and, when publication is authorized under subdivision 4.3(c), also in the county of the defendant’s last known location or residence within the United States. If no newspaper of general circulation is published in the county, then publication shall be in a newspaper of general circulation published in an adjoining county.’ ”

Nichols v. Pate, 992 So.2d 734, 736-37 (Ala.Civ.App.2008) (emphasis omitted).

In the present case, as noted above, Kemp and Edwards’s affidavit, which was filed in support of their request to serve the heirs of Frank’s estate by publication, stated that the names and addresses of Frank’s heirs remained unknown “after diligent inquiry.” In their brief to this Court, the appellants argue that Kemp and Edwards did not actually exercise reasonable diligence in attempting to ascertain the names and addresses of Frank’s heirs. We agree. Although Kemp and Edwards’s affidavit was sufficient to satisfy the technical requirements of Rule 4.3(d)(1), Ala. R. Civ. P., and the aver-ments in that affidavit notwithstanding, we remain unpersuaded that diligent inquiry was, in fact, undertaken as required by Rule 4.3. Compare Shaddix v. Shaddix, 603 So.2d 1096, 1097-98 (Ala.Civ.App.1992) (finding that “it [did] not affirmatively appear from an examination of the record that a diligent effort to locate the [defendant] was made ... or that such an effort would have proven futile”).

Specifically, although we have previously held that “ ‘[i]t is not reasonable or logical to require [service first by a method other than publication] where the defendant’s residence is unknown,’ ” see Kilpatrick v. Kilpatrick, 628 So.2d 729, 731 (Ala.Civ.App.1993) (quoting Brooks v. Brooks, 494 So.2d 645, 647 (Ala.Civ.App.1986)), the record reflects that the appellants’ addresses were not, in fact, unknown or, at least, would not have remained so upon the exercise of reasonable diligence by Kemp and Edwards. As set out above, the guardian ad litem’s genealogy report in the proceeding in the probate court, which identified all of Frank’s potential heirs — including the appellants — was clearly filed before the plaintiffs’ complaint and the accompanying motion to serve Frank’s heirs by publication were filed. It is undisputed that Kemp and Edwards had appeared in that probate proceeding — by filing a claim against Frank’s estate — before the declaratory-judgment action was filed in the circuit court. Further, as the appellants argued in their posttrial motion, Burgess’s answer to Kemp and Edwards’s complaint also pointed out that information regarding any heirs was readily available in the file in the probate court proceeding, which Kemp and Edwards’s complaint indicated they had previously accessed in then-search for information regarding Frank’s heirs. Despite that disclosure, no actions were taken by Kemp and Edwards to provide notice to the heirs found by the guardian ad litem. In fact, Kemp and Edwards’s affidavit did not identify any efforts, other than the purported review of the contents of the probate court file, that were made in an attempt to locate Frank’s heirs before seeking to serve them by publication. As noted in March v. Stringer, 518 So.2d 65 (Ala.1987), with regard to the plaintiffs’ failure to take even the minimal step of consulting telephone directories, “reasonable diligence would suggest that [such steps] be tried before service by publication be employed.” 518 So.2d at 70. The record before us demonstrates that the names and addresses of the appellants could have been easily ascertained, enabling them to be served by a method other than publication.

This Court has previously held that “ ‘[failure to exercise due diligence in perfecting personal service of process precludes notice by publication.’ ” Reid v. Tingle, 716 So.2d 1190, 1195 (Ala.Civ.App.1997) (quoting Shaddix v. Shaddix, 603 So.2d at 1098, which cites in turn Sams v. Equitable Life Assurance Soc’y of the United States, 402 So.2d 999 (Ala.Civ.App.1981)). In Sams, supra, the Court of Civil Appeals observed:

“The evidence shows that appellant knew where Iris Holmes lived, knew her correct address at all times pertinent to this inquiry and, yet, made no effort to serve her with process after the initial effort failed because of an erroneous address. A plaintiff must exercise due diligence in perfecting personal service of process on a defendant and the failure to do so precludes notice by publication. Whitfield v. Sanders, Ala., 366 So.2d 258 (1979). The failure to properly notify a defendant of the action filed against him deprives the trial court of personal jurisdiction over the party and a default judgment rendered against said party would be void. Whitfield v. Sanders, supra.
“The evidence shows that Tommie Sams was fully aware of Iris Holmes’s address at all times in question. Under such circumstances notice by publication was insufficient to invest the trial court with jurisdiction and the default judgment rendered against her was void and properly set aside.”

402 So.2d at 1001. Similarly, here, although Kemp and Edwards may not have been fully aware of the names and addresses of all Frank’s heirs, including the appellants, it appears that that information was contained in the probate court proceedings — in which Kemp and Edwards were participating — before they filed their complaint in the circuit court. Thus, the record reflects that the names and addresses of the appellants were readily ascertainable with no additional investigative efforts required on Kemp and Edwards’s part and that the appellants’ names and addresses could have, with reasonable diligence, been ascertained in order that the appellants could have easily been served by certified mail.. Under these circumstances, notice by publication was insufficient to obtain jurisdiction over the appellants, and the default judgment against them is void.

In their brief to this Court, Kemp and Edwards argue that, even assuming that notice by publication was insufficient, the appellants waived any defects in service by attending the bench trial of this matter on February 20, 2008. As indicated above, the record does reflect that certain of, but not all, the appellants attended the trial, presumably because of the notice conveyed to them by Burgess in the case pending in the probate court. Further, it is true that this Court has previously acknowledged that a defendant may waive defects in service by voluntarily appearing in the proceedings. See, e.g., Cooper v. Watts, 280 Ala. 236, 239, 191 So.2d 519, 521 (1966) (“ ‘It is elementary law that in order for a court to have jurisdiction of the person there must be service of process or voluntary appearance.’ ” (quoting Ex parte Gunter, 17 Ala.App. 313, 315, 86 So. 146, 147 (1919))). However, that principle has no application to the present case — where the few appellants who did attend the trial did not actually “appear” as parties, were not represented by counsel, and did not participate in the proceeding in any meaningful way. See Ex parte Phillips, 900 So.2d 412, 415-16 (Ala.2004) (“ ‘An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court.’ ” (quoting Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117, 1120 (Ala.1977))). Therefore, evidence of mere attendance at the trial by some of the appellants is not compelling. Moreover, despite Kemp and Edwards’s arguments to the contrary, the appellants attending the trial could not have actually participated in the trial because of the previous entry of default against them by the clerk. See McGugin v. McGugin, 23 So.3d 682, 684 (Ala.Civ.App.2009) (“After an entry of default, the defaulting party ‘loses his standing in court, cannot appear in any way, cannot adduce any evidence and cannot be heard at the final hearing.’” (quoting Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 670 (Ala.1981)) (additional citations omitted)).

Whether the heirs to Frank’s estate were necessary and indispensable parties to this litigation, an issue we do not reach, we find that having named the heirs as defendants, Kemp and Edwards were required to properly serve them as provided for by Rule 4.3. Having failed to do so, the default judgment entered against the heirs was void, see Ex parte Wilson Lumber Co., 410 So.2d 407, 409 (Ala.1982) (“ ‘To authorize a court to proceed, it must acquire jurisdiction over defendant in some mode authorized by law, by service or other means, and ... a judgment rendered without acquiring such jurisdiction is a nullity.’ ”), and the circuit court erred in failing to grant the appellants relief from the judgment against them. Based on the foregoing, we reverse the circuit court’s order striking the appellants’ post-judgment motion, instruct the circuit court to vacate the default judgment, and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The complaint indicated that the named heirs had been discovered by means of an "Internet search" of possible heirs performed by the guardian ad litem appointed in the pending probate case. These five individuals were the first five heirs identified in the guardian ad litem's report and are five of the appellants.

      . As discussed in more detail below, Rule 4.3(d)(1), Ala. R. Civ. P., provides, in pertinent part, that "[b]efore service by publication can be made in an action where the identity or residence of a defendant is unknown ... an affidavit of a party or the party's counsel must be filed with the court averring that service of summons or other process cannot be made because either the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or, the identity of the defendant is unknown....”

      .On October 2, 2007, before filing his answer, Burgess had moved to dismiss Kemp and Edwards’s complaint pursuant to § 43-2-131, Ala.Code 1975, on grounds that, at the time the declaratory-judgment action was initiated, the six-month claims period in the probate proceeding had not expired, nor had Burgess, as personal representative of Frank’s estate, contested Kemp and Edwards’s claim. Section 43-2-131 states that "[n]o civil action must be commenced against an executor or administrator, as such, until six months after the grant of letters testamentary or of administration, unless the executor or administrator has given notice of the disallowance of the claim.” In his motion, Burgess further argued, among other things, that the complaint named improper party defendants. Although the circuit court denied the motion, it appears that the circuit court took no action until after January 11, 2008, when Burgess filed a notice in the circuit court indicating that Kemp and Edwards’s claim against Frank’s estate in the probate action had been "denied in whole.”

      . The record before us does not contain a judgment by default.

      . They also argued that a new trial was necessary because, they said, the evidence presented by Kemp and Edwards was insufficient to sustain the circuit court’s findings; because oral contracts to devise may not be established solely by testimonial evidence; and because of an alleged conflict of interest related to the fact that Burgess’s counsel had previously represented Kemp in the proceeding in which Kemp was named conservator of Frank’s estate.

      . Burgess, as personal representative of Frank’s estate, does not appeal.

      . Before the most recent amendment to Rule 4.3, Ala. R. Civ. P., which was effective August 1, 2004, and which removed the word “resident” from the text of Rule 4.3(c), the courts of this state had consistently held, with a single noted exception, "that personal jurisdiction could not be obtained over a nonresident defendant through service by publication.” Vogus v. Angry, 744 So.2d 934, 936 (Ala.Civ.App.1999) (citing Shaddix v. Shaddix, 603 So.2d 1096, 1098 (Ala.Civ.App.1992)). See also Wise v. Siegel, 527 So.2d 1281, 1282 (Ala.1988); Williams v. Williams, 910 So.2d 1284, 1287 n. 5 (Ala.Civ.App.2005).


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte AIG BAKER ORANGE BEACH WHARF, L.L.C. (In re AIG Baker Orange Beach Wharf, L.L.C. v. Coastal Couture, LLC, and Tosha L. Corrigan).
    1080807.
    Supreme Court of Alabama.
    April 16, 2010.
    James A. Harris III and Clyde O. West-brook III of Harris & Harris, LLP, Birmingham; and John V. Lee, Mobile, for petitioner.
    Peter F. Burns and Troy T. Schwant of Burns, Cunningham & Mackey, P.C., Mobile, for respondents.
   SHAW, Justice.

AIG Baker Orange Beach Wharf, L.L.C. (“AIG”), the plaintiffieounterclaim-defen-dant below, petitions this Court for a writ of mandamus directing the trial court to vacate an order denying its motion to strike the jury demand of the defendants/eounterclaim-plaintiffs, Coastal Couture, LLC (“Coastal”), and Coastal’s owner, Tosha L. Corrigan. For the reasons stated below, we grant the petition and issue the writ.

Facts and Procedural History

In September 2006, AIG entered into a retail lease agreement with Coastal whereby Coastal leased from AIG premises in The Wharf, a retail shopping center in Orange Beach. The lease agreement contained a provision entitled “mutual waiver of jury trial,” which provided, in pertinent part:

“Tenant and Landlord hereby waive any right to a trial by jury on any claim, counterclaim, setoff, demand, action or cause of action brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way pertaining or relating to: (i) this Lease; (ii) the relationship of Landlord and Tenant; (iii) the use and occupancy of the Premises; or (iv) in any way connected with or pertaining or relating to or incidental to any dealings of the parties hereto with respect to this Lease, or any other matter or controversy whatsoever between the parties; in all of the foregoing cases whether now existing or hereafter arising. Tenant and Landlord agree that either or both of them may file a copy of this provision with any court as written evidence of the knowing, voluntary, and bargained agreement between the parties irrevocably to waive trial by jury, and that any dispute or controversy whatsoever between them shall instead be tried in a court of competent jurisdiction by a judge sitting without a jury.”

The lease agreement, which indisputably contained the foregoing waiver, was executed by Corrigan on Coastal’s behalf. Contemporaneously with the execution of the lease agreement, Corrigan also executed a separate “Guaranty of Lease,” wherein she personally guaranteed Coastal’s performance of the lease with AIG. The separate guaranty document also contained a provision waiving the right to a trial by jury that is substantially identical to the language set out above.

On May 11, 2007, Coastal took possession of the retail space at The Wharf; however, Coastal failed to make any rent payments, and AIG ultimately terminated the lease. On January 24, 2008, AIG filed an unlawful-detainer action against Coastal and Corrigan in the Baldwin District Court and subsequently obtained a judgment in its favor. Coastal and Corrigan appealed to the Baldwin Circuit Court, at which time AIG amended its previous complaint to seek both unpaid and accelerated rent under the lease agreement and the guaranty document. After their initial answer to AIG’s complaint, Coastal and Cor-rigan filed an amended answer in which they asserted numerous counterclaims, some of which related to alleged fraudulent conduct on the part of AIG, which, Coastal and Corrigan claimed, induced them to enter into the lease agreement, thereby rendering the jury-waiver provision ineffective. Specifically, AIG purportedly represented that 740 condominium units and 250 hotel rooms would be constructed at The Wharf and that several well known national and local retail chains had already executed lease agreements for retail space at The Wharf. Coastal and Corrigan alleged that these representations were untrue and that Coastal was unsuccessful as a result. The amended answer also contained a demand for a jury trial.

Based on the provisions of the lease agreement and the guaranty document, AIG moved to strike the jury demand. Coastal and Corrigan responded by arguing that they were entitled to a jury trial because of alleged fraud in the inducement, which, they contended, led to the execution of the lease agreement and the guaranty document and, thus, occurred before the execution of the lease agreement and the guaranty document and was unrelated to and outside the scope of any provision in the lease agreement and the guaranty document. The trial court denied AIG’s motion, and AIG petitions for mandamus review.

Standard of Review

“Mandamus is an appropriate remedy where the availability of a jury trial is at issue, as it is in this case.” Ex parte Cupps, 782 So.2d 772, 775 (Ala.2000) (citing Ex parte Merchants Nat’l Bank of Mobile, 257 Ala. 663, 665, 60 So.2d 684, 686 (1952)). Nonetheless,

“ ‘ “[t]he writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala.2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).”

Ex parte Carson, 945 So.2d 448, 449 (Ala.2006).

Discussion

The substantive question presented by AIG’s petition is whether the contractual waiver of the right to a jury trial, as contained in the lease agreement and the guaranty document and set out above, bars a jury trial on Coastal and Corrigan’s tort claims against AIG. Public policy, the Alabama Rules of Civil Proce-dure, and the Alabama Constitution all express a preference for trial by jury. Ex parte Cupps, 782 So.2d at 775. That said, “no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury.” Mall, Inc. v. Robbins, 412 So.2d 1197, 1199 (Ala.1982). See also Hood v. Kelly, 285 Ala. 337, 339, 231 So.2d 901, 904 (1970) (“ ‘The right of jury trial is a personal right, of which no person can be deprived against his will, but there is neither constitutional nor statutory provision which prohibits him from waiving his constitutional privilege in civil actions.’ ” (quoting Oliver v. Herron, 106 Ala. 639, 640, 17 So. 387, 387 (1894))); Shoney’s LLC v. MAC East, LLC, 27 So.3d 1216, 1222 (Ala.2009) (“The ban on impairing the obligations of contracts provided in Ala. Const.1901, § 22, is obviously one that shall forever remain inviolate. Alabama caselaw has maintained the constitutional prohibition on impairing contracts by consistently upholding the intent of the contracting parties.”).

Coastal and Corrigan do not challenge the overall validity or enforceability of the contractual waiver in the present case, nor do they allege misrepresentation or fraud with regard to the jury-waiver provision itself. In fact, in their brief in response to AIG’s petition, Coastal and Corrigan “concede [ ] that the contract claims made by AIG ... against Corrigan as well as Corri-gan’s breach of contract claims against AIG Baker are subject to the jury waiver provision.” (Answer, at p. 4; emphasis added.) Instead, Coastal and Corrigan argue that the waiver does not apply to the tort counts they assert against AIG, specifically, their count of fraud in the inducement.

In Ex parte Cupps, this Court examined the scope of a jury-waiver provision. We noted that a provision applying only to claims “arising from” or “arising under” a contract, has a narrow scope and “exclude[d] claims that did not require a reference to, or a construction of, the underlying contract.” 782 So.2d at 776. On the. other hand, a provision applying to claims “ ‘arising out of or relating to’ ” a contract — such as the provision in the instant case — “ ‘has a broader application’ ” than a provision “ ‘that refers only to claims “arising from” the agreement.’ ” 782 So.2d at 776 (quoting Reynolds & Reynolds Co. v. King Automobiles, Inc., 689 So.2d 1, 2-3 (Ala.1996)). Cf. Vann v. First Cmty. Credit Corp., 834 So.2d 751, 754 (Ala.2002) (noting that the phrase “any controversy or claim arising out of or relating to” covers a broad range of disputes); Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (noting that “ ‘relating-to’ language has been held to constitute a relatively broad arbitration provision”).

The jury-waiver provision in the present case applies not only to disputes “arising out of or in any way pertaining or relating to” the lease agreement or the guaranty document, which, as noted in Ex parte Cupps, has a broad scope, but also to disputes arising out of or in any way pertaining or relating to the relationship of the parties, i.e., “any dealings of the parties ... with respect to” the lease agreement or the guaranty document, “or any other matter or controversy whatsoever between the parties ...(Emphasis added.) The waiver further reiterates that “any dispute or controversy whatsoever between [the parties ] shall ... be tried in a court of competent jurisdiction by a judge sitting without a jury.” (Emphasis added.) Although this Court has indicated its unwillingness to “stretch the language of a contract to apply to matters that were not contemplated by the parties when they entered the contract,” Koullas v. Ramsey, 688 So.2d 415, 417 (Ala.1996), Coastal and Corrigan’s allegations of fraudulent inducement on AIG’s part in entering into the lease agreement and the guaranty document clearly pertain to or relate to the lease agreement (its negotiation), the “dealings of the parties” with respect to the lease agreement and the guaranty document, and a “dispute or controversy” between the parties.

In Selma Medical Center, Inc. v. Manayan, 733 So.2d 382 (Ala.1999), this Court held that an arbitration agreement containing similar language covered a claim of fraudulent inducement:

“The arbitration clause in the contract between the Hospital and Dr. Manayan requires that the parties submit to arbitration ‘any dispute [that] shall arise concerning any aspect of this Agreement.’ This language is broader than the ‘arising out of language that prompted the narrow interpretation of the arbitration agreement in [Old Republic Insurance Co. v. Lanier, 644 So.2d 1258 (Ala.1994) ]. Indeed, we conclude that even the decision in [Ex parte Lorance, 669 So.2d 890 (Ala.1995),] would require arbitration in the present case, given the ‘concerning any aspect’ language in the arbitration clause in the contract between Dr. Manayan and the Hospital:
“ ‘As long as an arbitration clause is broad enough to encompass claims of fraud in the inducement of the contract in which it is found, any claims as to fraud in the inducement of the contract generally, as opposed to the arbitration agreement specifically, are subject to arbitration. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350 (11th Cir.1986); Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332 (Ala.1991). Here, the arbitration clause states: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration .... ” Clearly, Dr. Lorance’s claims as to fraud in the inducement of the contract “relat[e] to” the contract, and the arbitration clause is therefore broad enough to encompass those claims.’
“Lorance, 669 So.2d at 892-93 (emphasis added).”

733 So.2d at 385-86. The holding in Ma-nayan confirms that Coastal and Corri-gan’s fraudulent-inducement count relates to the lease agreement.

In their brief, Coastal and Corrigan argue that the language in the jury-waiver provision restricting its scope to matters “arising out of’ or “relating to” the lease agreement should be narrowly construed. In support of their argument, they point to Robbins, in which this Court stated: “[T]hat same public policy that applies the rule of strict construction will likewise limit the scope of operation of a jury waiver agreement to those controversies directly related to and arising out of the terms and provisions of the overall agreement containing the jury waiver provisions.” 412 So.2d at 1200. Similarly, in Koullas v. Ramsey, 683 So.2d at 418, which Coastal and Corrigan also cite, the Court held that “in order for a dispute to be characterized as arising out of or relating to the subject matter of the contract ... it must at the very least raise some issue that cannot be resolved without a reference to or construction of the contract itself.”

In Ex parte Cupps, the Court addressed whether these terms should be given the narrow construction suggested by Coastal and Corrigan. Examining Robbins, Koul-las, and other precedent, we acknowledged that the terms “arising from” or “arising under” covered only claims requiring a reference to the terms of the contract. 782 So.2d at 776. The Court went on to note, however, that although Koullas at one point appeared to state “that the term ‘arising out of or related to’ receives the same construction as ‘arising from’ and ‘arising under,’ our cases clearly treat these two classes of terms differently.” 782 So.2d at 776 n. 1 (emphasis added). Thus, contrary to Robbins and Koullas, the Court in Ex parte Cupps noted that provisions applying to claims “arising out of or related to” a contract are broader in scope than those “arising from” or “arising under.” In any event, the terms of the lease agreement and the guaranty document here are much broader than either of the jury-waiver provisions in Robbins or Koullas, and this Court must uphold the intent of the parties as expressed in their contract. Shoney’s LLC, supra.

Coastal and Corrigan have conceded that they are not entitled to a jury trial on the pending contract claims of the parties, and we now conclude that their remaining claims are likewise subject to the jury-waiver provisions found in the lease agreement and the guaranty document. Therefore, the trial court erroneously denied AIG’s motion to strike Coastal and Corri-gan’s demand for a jury trial on those claims. For the foregoing reasons, we grant AIG’s petition and issue a writ of mandamus directing the trial court to vacate its order denying AIG’s motion and to enter an order granting AIG’s motion to strike the jury demand as to all claims pending in the trial court.

PETITION GRANTED; WRIT ISSUED.

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

      . AIG’s petition alleges that Corrigan has been a licensed real-estate agent for six years and, thus, was "very familiar with real estate transactions.” (Petition, at p. 2.) It further alleges that Corrigan was provided “several days” to review the lease agreement and the guaranty document before their execution. (Petition, at p. 5.) Although Corrigan, in her own deposition testimony, indicated that she was unable to recall how long she had to review the lease agreement, she did confirm both her real-estate experience and that she read both the lease agreement and the guaranty document before signing them.

      . The eight counterclaims alleged against AIG by Coastal and Corrigan included the following: fraud in the inducement (count I); misrepresentation/fraudulent suppression (regarding the status of the construction of The Wharf project) (count II); breach of contract (count III); negligence (regarding the development, construction, and maintenance of The Wharf) (count IV); willful, wanton, and/or reckless misconduct (count V); rescis-sión (count VI); unjust enrichment (count VII); and a declaratory-judgment action (declaring the lease void) (count VIII). In its petition, AIG contends that the foregoing claims are compulsory counterclaims as defined by Rule 13(a), Ala. R. Civ. P., because, it argues, "they arise out of the same transaction as [AIG's] claims.” (Petition, at p. 17 n. 6.)

      . Based upon this concession, we do not interpret Coastal and Corrigan’s claims as falling within the class of fraud termed “fraud in the factum,” or execution, as distinguished from fraud in the inducement. See Drinkard v. Embalmers Supply Co., 244 Ala. 619, 14 So.2d 585 (1943) (explaining the distinction between fraud in the factum and fraud in the inducement). See also Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 460 (Ala.2000) (noting that fraud in the factum "is a challenge to the very existence of the contract”); Anderson v. Ashby, 873 So.2d 168, 182 (Ala.2003) (" 'Fraud in the factum occurs when a party “procures a[nother] party's signature to an instrument without knowledge of its true nature or contents.” ' ”).


author: WOODALL, Justice.

text:
    Bonnie WEHLE, Penny Martin, and Sharon Ann Wehle v. Thomas H. BRADLEY III, James H. McGowan, and Grady Hartzog, as co-personal representatives of the estate of Robert G. Wehle, deceased. Bonnie Wehle, Penny Martin, and Sharon Ann Wehle v. Thomas H. Bradley III, James H. McGowan, and Grady Hartzog, as co-personal representatives of the estate of Robert G. Wehle, deceased.
    1081433 and 1090083.
    Supreme Court of Alabama.
    April 16, 2010.

      James M. Sizemore, Jr., Alexander City, for appellants.
    Robert A. Huffaker and Bethany L. Bol-ger of Rushton, Stakely, Johnston & Garrett, P.C., Montgomery; and Lynn W. Jinks III of Jinks, Daniel & Crow, LLC, Union Springs, for appellees Thomas H. Bradley III and James H. McGowan.
    Joseph E. Stott and Robert M. Ronn-lund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellee Grady Hartzog.
   WOODALL, Justice.

Thomas H. Bradley III, James H. McGowan, and Grady Hartzog (“the personal representatives”) were appointed as co-personal representatives of the estate of Robert G. Wehle, who died in 2002. In 2005, they petitioned the Bullock County Probate Court for final settlement of Wehle’s estate and submitted an accounting of their administration of the estate. Wehle’s daughters — Bonnie Wehle, Penny Martin, and Sharon Ann Wehle (“the daughters”) — objected to the accounting, arguing, among other things, that the personal representatives had paid themselves compensation without first obtaining the approval of the probate court and that the amount of that compensation was excessive.

On the petition of Wehle’s surviving spouse, the administration of the estate was removed to the Bullock Circuit Court. The circuit court entered a partial summary judgment in favor of the personal representatives with regard to the compensation issues. The daughters appealed that judgment to this Court; their appeal was assigned case no. 1081433. More than two months after that appeal was filed, the circuit court entered an order purporting to certify the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. The daughters again appealed; this second appeal was assigned case no. 1090083. The appeals have been consolidated for the purpose of writing one opinion.

As to the first appeal, we hold that the circuit court erred in determining that the will expressly authorized the personal representatives to compensate themselves without prior court approval. Therefore, we reverse the partial summary judgment and remand the case for further proceedings. Because the first appeal properly invoked the jurisdiction of this Court, the circuit court was without jurisdiction to enter the Rule 54(b) order. Therefore, we vacate that order and dismiss the second appeal as being from a void judgment.

Facts and Procedural History

Robert G. Wehle died on July 12, 2002. His will was admitted to probate, and letters testamentary were issued to Bradley, McGowan, and Hartzog as co-personal representatives of Wehle’s estate. The will created a marital trust for Wehle’s wife, Gatra Wehle, and a family trust for the daughters and Wehle’s granddaughter, Debbie Kloppenberg. The personal representatives were named as cotrustees of both the marital trust and the family trust.

In October 2005, the personal representatives petitioned the probate court for final settlement of the estate. They also filed an accounting of their administration of the estate. The accounting indicated that the personal representatives had paid themselves total compensation of $1,964,367.82, which, they allege, amounts to 5% of the value of Wehle’s estate at the time the petition for final settlement was filed. The personal representatives argue that the amount of their fees is consistent with the statutory allowance for such fees. They also argue that Wehle told his attorney that he intended for the personal representatives’ fees to be approximately 5% of the value of his estate.

The daughters filed an objection to the accounting, arguing, among other things, that, pursuant to § 43-2-844(7), Ala.Code 1975, the personal representatives were required to obtain prior court approval before compensating themselves out of the assets of the estate. The daughters also argued that the amount of the compensation exceeded the “reasonable compensation” allowed by § 43-2-848(a), Ala.Code 1975.

In March 2007, Gatra Wehle petitioned to have the administration of the estate removed to the circuit court. The petition was granted.

The personal representatives moved the circuit court for a partial summary judgment on the daughters’ objections, arguing (1) that the will authorized the payment of the compensation to the personal representatives without prior court approval, and (2) that the statute of limitations barred the daughters’ claim that the fees of the personal representatives were excessive. On July 17, 2009, the circuit court granted the personal representatives’ motion for a partial summary judgment, stating:

“As to the claim that the Personal Representatives paid fees to themselves without obtaining Court approval, the Court finds that the terms of the Will expressly exempt the Personal Representatives from obtaining Court approval before payment of their fees. As to the claim that the fees paid were excessive, it is without factual dispute that [the daughters] had knowledge of the amount of these fees more than two years before they filed their contest of the fees and thus this claim is time barred.”

On July 24, 2009, the daughters appealed to this Court from the circuit court’s judgment pursuant to § 12-22-4, Ala.Code 1975. Hartzog later moved the circuit court to make its partial summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P. The circuit court granted that motion and entered an order on October 1, 2009, purporting to certify the partial summary judgment as a final judgment pursuant to Rule 54(b). The daughters- again appealed, and we consolidated the two appeals.

Issues

The daughters present three issues in these appeals: (1) whether the will expressly authorized the payment of the personal representatives’ fees without prior court approval; (2) whether the daughters’ objections regarding the alleged excessiveness of the fees are barred by the statute of limitations; and (3) whether the circuit court exceeded its discretion in entering the Rule 54(b) order.

Standard of Review

“This Court’s review of a summary judgment is de novo. 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. In making such a determination, we must review the evidence in the light most favorable to the non-movant .... ”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004) (citations omitted).

Analysis

I.

We first address the third issue raised by the daughters: whether the circuit court exceeded its discretion in entering the Rule 54(b) order in response to Hart-zog’s motion after the daughters had filed their first appeal in case no. 1081433. This Court has stated:

“Jurisdiction of a case can be in only one court at a time. Therefore, while an appeal is pending, the trial court ‘can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.’ ”

Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala.2003) (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984), overruled by Ex parte Andrews, 520 So.2d 507 (Ala.1987), to the extent Foster held that filing a notice of appeal ousts the trial court of jurisdiction to consider a timely filed postjudgment motion to alter, amend, or vacate (citations omitted)).

The daughters’ first appeal, taken pursuant to § 12-22-4, properly invoked this Court’s appellate jurisdiction with regard to the partial summary judgment. Therefore, the circuit court was without jurisdiction to later enter the Rule 54(b) order; thus, that order is void. See Miller v. Riley, 37 So.3d 768, 772 (Ala.2009). Because “a void order or judgment will not support an appeal,” Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008), we vacate the circuit court’s Rule 54(b) order and dismiss the daughters’ second appeal (case no. 1090083).

II.

We turn now to the daughters’ argument that the circuit court erred in determining that “the terms of the Will expressly exempt the Personal Representatives from obtaining Court approval before payment of their fees.” Section 43-2-844, Ala.Code 1975, provides, in pertinent part: “Unless expressly authorized by the will, a personal representative, only after prior approval of court, may .... [p]ay compensation of the personal representative.” The daughters argue that none of the provisions of Wehle’s will expressly authorizes the payment of compensation to the personal representatives without prior court approval.

The personal representatives respond by citing subsections (B) and (E) of Article V and subsection (C) of Article VII of the will, which, they argue, provide “express authorization” for the payment of the fees of the personal representatives without prior court approval. Article V(B) provides:

“My Personal Representative shall not be required to furnish bond or to file an inventory or appraisal of my estate in any court. It is my intention that upon the probate of this Will all control over this Will by any court shall cease and terminate, and my Personal Representative shall not be required to make any report of final settlement to any court of his proceedings hereunder.”

Article V(E) provides:

“My Personal Representative shall have all the powers and discretion with respect to my estate during administration that are set forth or referred to with respect to the Trustee hereunder (including the power to sell real or personal property at public or private sales for any purpose and to hold title to property in the name of a nominee), to be exercised without court order.”

Article VTI(C) provides:

“To the extent that such requirements can legally be waived, no trustee hereunder shall ever be required to give bond or security as trastee, or to qualify before, be appointed by, or account to any court, or to obtain the order or approval of any court with respect to the exercise of any power or discretion granted in this instrument.”

The personal representatives argue that “[a] fair reading of these, and other Will provisions, is that the Will exempted the Personal Representatives from obtaining court approval in performing their services in the administration of the Estate. This exemption from court approval obviated any need to obtain prior judicial sanction of payment of their fees.” We disagree.

Section 43-2-844(7), Ala.Code 1975, requires that payment of compensation to a personal representative without prior court approval be “expressly authorized by the will.” (Emphasis added.) “Express” means “[cjlearly and unmistakably communicated; directly stated.” Black’s Law Dictionary 620 (8th ed.2004). Clearly, authorization that is only allegedly inferred from a “fair reading” of a will is not “expressly” stated in that will.

In Green v. Estate of Nance, 971 So.2d 38 (Ala.Civ.App.2007), the Court of Civil Appeals addressed a similar question with regard to § 43-2-835, Ala.Code 1975. Section 43-2-835 provides that “a personal representative ... shall file an inventory of property owned by the decedent at the time of death,” § 43-2-835(a), unless “the testator, by express provision in the will to that effect, exempts the personal representative from filing an inventory.” § 43-2-835(b) (emphasis added).

Green, the decedent’s daughter, filed a motion for an inventory of the property of Nance’s estate. “The circuit court denied the motion on the ground that the express terms of the will relieved the executor of the duty to file an inventory.” Green, 971 So.2d at 40. Green appealed the denial of that motion.

The Court of Civil Appeals stated:

“In the present case, the circuit court construed the language in the third and sixth paragraphs of the will to mean that the executor has ‘the right to do whatever he wants to do under the will’ and that, therefore, no inventory is required. We disagree. The rules of statutory construction are well'established in Alabama. In 2006, the Alabama Supreme Court stated:
“1 “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’
“Section 43-2-835(b), Ala. Code 1975, requires the personal representative of an estate to file an inventory unless ‘the testator, by express provision in the will to that effect, excepts the personal representative’ from doing so, with certain exceptions thereto. Black’s Law Dictionary 620 (8th ed.2004), defines ‘express’ as ‘[cjlearly and unmistakably communicated; directly stated.’ The plain meaning of the language used in § 43-2-835(b) leads us to conclude that any provision of a will purporting to exempt the personal representative from filing an inventory must specifically speak to that requirement. In other words, general language in a will that grants broad discretion to a personal representative in distributing property under that will will not satisfy the requirement in § 43-2-835(b) that there be an ‘express provision’ exempting the personal representative from filing an inventory....”

Green, 971 So.2d at 41-42 (quoting Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006), quoting in turn DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998), quoting in turn Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)). The Court of Civil Appeals concluded that “[bjecause ... there [was] no express provision exempting the executor from filing an inventory, ... the circuit court exceeded its discretion in denying Green’s motion requesting an inventory.” Green, 971 So.2d at 42.

Here, the relevant statute requires that payment of the compensation of the personal representatives without prior court approval be “expressly authorized” by the will. The provisions of Wehle’s will cited by the personal representatives may “grant [] broad discretion to a personal representative in distributing property under that will,” but they do not “specifically speak” to the requirement that the personal representatives obtain the approval of the probate or circuit court before paying compensation to themselves. Green, 971 So.2d at 42. Therefore, those provisions “will not satisfy the requirement in [§ 43-2-844] that there be an ‘express provision’ ” authorizing the payment of such fees without court approval. Green, 971 So.2d at 42.

Because the payment of compensation to the personal representatives without prior court approval was not expressly authorized by Wehle’s will, the circuit court erred in entering its partial summary judgment in favor of the personal representatives. Therefore, its judgment is reversed and the case remanded. Our decision to reverse the circuit court’s judgment on this ground pretermits consideration of the daughters’ argument that the circuit court erred in determining that their claim as to the excessiveness of the compensation is barred by the statute of limitations.

1081433 — REVERSED AND REMANDED.

1090083 — ORDER VACATED; APPEAL DISMISSED.

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

      . Section 43-2-844(7) provides, in pertinent part, that "[u]nless expressly authorized by the will, a personal representative, only after prior approval of court, may ... [pjay compensation of the personal representative.”

      . Section 12-11-41, Ala.Code 1975, provides: "The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, ... without assigning special equity. ...” This Court has interpreted "any time before a final settlement" to mean "before proceedings for settlement begin,” Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696, 698 (1924), or before " ‘the probate court has taken steps toward a final settlement, or has, in fact, made a final settlement.’ " Ex parte Terry, 985 So.2d 400, 403 (Ala.2007) (quoting Ex parte Clayton, 514 So.2d 1013, 1016 (Ala.1987)). "Where ... the probate court has taken jurisdiction for a final settlement of the will it is necessary that the bill set up some special equity which the probate court cannot protect before there can be a removal under this section.” Brittain v. Ingram, 282 Ala. 158, 163, 209 So.2d 653, 658 (1968).
      Here, Gatra Wehle petitioned for removal after the probate court had taken steps toward a final settlement, including scheduling a hearing on the petition for final settlement and sending notices of the hearing to the interested parties. Although the probate court appears to have assumed jurisdiction over the final settlement, the personal representatives consented to the removal, conceding that the "circumstances [in this case] present special equity warranting removal of the administration of the Estate from Probate Court.” Therefore, this Court need not address further the timeliness of the removal.

      .Section 12-22-4 provides, in pertinent part: "From a judgment of the circuit court or probate court on a partial or annual settlement of an estate of a deceased person, an appeal lies to the Supreme Court.” (Emphasis added.)


author: LYONS, Justice.

text:
    Ex parte JACKSON HOSPITAL & CLINIC, INC. (In re Linda Houston v. Jackson Hospital & Clinic, Inc.).
    1090269.
    Supreme Court of Alabama.
    April 16, 2010.
    L. Peyton Chapman III, R. Brett Garrett, and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner.
    Fred F. Bell, Montgomery, for respondent.
   LYONS, Justice.

Jackson Hospital & Clinic, Inc. (“Jackson Hospital”), the defendant in a medical-malpractice lawsuit, has filed a petition for the writ of mandamus challenging the trial court’s authority to enter an order setting aside the summary judgment it had entered for Jackson Hospital when the order, which was in response to a motion filed by the plaintiff, Linda Houston, to vacate the summary judgment, had been pending for more than 90 days. We grant the petition and issue the writ.

I. Factual Background and Procedural History

Houston sued Jackson Hospital in the Montgomery Circuit Court seeking money damages in an unspecified amount for alleged medical malpractice. Jackson Hospital filed a motion for a summary judgment in which it asserted that Houston had failed to present sufficient evidence to support her claims by means of expert testimony as required by § 6-5-548, Ala. Code 1975, a part of the Alabama Medical Liability Act, § 6-5-540 et al., Ala.Code 1975. Jackson Hospital later filed a supplemental motion for a summary judgment. Those motions were set for hearing on April 28, 2009. Neither Houston nor her attorney attended the April 28 hearing, but one hour after the hearing she filed a response in opposition to Jackson Hospital’s summary-judgment motions. Attached to the response was the affidavit of Minnie Pearl Holmes, offered by Houston as an expert. The trial court entered a summary judgment in favor of Jackson Hospital on April 30, 2009.

On June 2, 2009, Houston filed a motion to vacate or to set aside the order entering the summary judgment. Upon review of the motion to vacate, Jackson Hospital first became aware of Houston’s response in opposition to its summary-judgment motions because the response had not been served on counsel for Jackson Hospital. Jackson Hospital moved to strike the response on the grounds that Holmes was not qualified to testify as an expert and that the response was untimely.

The trial court set a hearing for July 20, 2009, on Houston’s motion to vacate or to set aside the summary judgment. According to Houston, at the hearing, “the trial court made it perfectly clear that the issues presented were issue[s] to be tried by the jury.” Answer to petition, p. 6. On October 5, 2009, the trial court entered an order purporting to set aside the summary judgment.

More than 90 days had elapsed from the time Houston filed her motion to vacate or to set aside the summary judgment and the date the trial court entered its order setting the summary judgment aside. No extension of the 90-day period within which the trial court had to rule on the motion to set aside was agreed to by the parties or entered on the record in the trial court.

II. Standard of Review

A petition for a writ of mandamus is the proper method for obtaining review of a trial court’s authority to rule on a posttrial motion beyond the time period set forth in Rule 59.1, Ala. R. Civ. P. See Ex parte Chamblee, 899 So.2d 244, 244-45 (Ala.2004) (granting petitions for the writ of mandamus that “implicate[d] the authority of the trial judge under Rule 59.1.... ”). See also Ex parte Davidson, 782 So.2d 237 (Ala.2000), in which this Court issued the writ of mandamus setting aside the trial court’s order, entered after posttrial motions had been denied by operation of law pursuant to Rule 59.1, as void.

III. Analysis

Houston attempts to supplement the materials before this Court by setting forth in her answer to the petition remarks attributed to the trial court at the hearing on July 20, 2009. She contends that the trial court did not exceed its discretion in setting aside its prior order, but she cites no authority in support of that contention. Jackson Hospital argues that nothing in the materials before this Court supports Houston’s statement in her answer to the petition detailing what the trial court purportedly said at the July 20, 2009, hearing. Jackson Hospital also argues that even if the trial court did indicate at the July 20 hearing that “the issues presented were issue[s] to be tried by the jury,” answer to petition, p. 6, such an oral statement was not sufficient to dispose of a pending post-judgment motion under Rule 59.1, Ala. R. Civ. P.

Rule 59.1 provides:

“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.”

(Emphasis added.) No consent appears of record and no order of this Court extended the time for the trial court to dispose of Houston’s motion to vacate or to set aside.

In Ex parte Chamblee, the respondent argued that it would be contrary to the Alabama Rules of Civil Procedure for this Court to “ ‘ignore oral determinations by the trial court and interpret Rule 59.1 to require entry of a written opinion and order.’” 899 So.2d at 248. This Court disagreed and took the opportunity to “reaffirm that for purposes of Rule 59.1 a trial judge disposes of a pending post-judgment motion only by properly entering a ruling either denying or granting the motion.” Id. The Court concluded: “Rule 59.1 must be read in conjunction and in harmony with Rule 58, which simply does not recognize an oral rendition of a judgment or order or an oral entry of a judgment or order.” Id. See also Ex parte Johnson Land Co., 561 So.2d 506 (Ala.1990), in which this Court declined to recognize an oral statement by the trial court supported by an affidavit from its law clerk as sufficient to constitute disposition of a postjudgment motion within the time prescribed by Rule 59.1.

Even if the trial court made the statement at the July 20, 2009, hearing that Houston relies upon in her answer to the petition, that statement is insufficient to constitute a disposition of Houston’s pending postjudgment motion. Houston’s motion had already been denied by operation of law when the trial court entered its written order purporting to set aside the summary judgment. The trial court’s order was void because it lost jurisdiction after the running of the 90-day period prescribed by Rule 59.1. Ex parte Chamblee, supra; Ex parte Davidson, supra.

IV. Conclusion

Jackson Hospital has shown a clear legal right to the issuance of the writ. The order entered on October 5, 2009, setting aside the summary judgment entered on April 30, 2009, is void.

PETITION GRANTED; WRIT ISSUED.

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


author: THOMAS, Judge.

text:
    A.E.T., JR. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080853.
    Court of Civil Appeals of Alabama.
    April 30, 2010.

      Douglas L. Patterson, Athens, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. gen. counsel, Department of Human Resources, for ap-pellee.
   THOMAS, Judge.

A.E.T., Jr. (“the father”), is incarcerated in Donaldson Correctional Facility, serving a 99-year sentence for felony murder. He is the father of A.E.T. III (“the child”), who was removed from the custody of M.M.W. (“the mother”) by the Limestone County Department of Human Resources (“DHR”) in 2006. In April 2008, DHR moved to terminate both parents’ parental rights. The mother’s parental rights were terminated in October 2008; she did not appeal. The father’s parental rights were terminated by an order dated May 27, 2009. He filed a timely appeal to this court.

The father does not challenge on appeal the establishment of grounds to terminate his parental rights. Instead, he argues first that the juvenile court abused its discretion by failing to continue the hearing on the termination-of-parental-rights petition until he could be transported to the hearing. He further argues that the evidence did not support a conclusion that no viable alternatives to termination of his parental rights existed. The father sought leave to file and is pursuing a Rule 60(b), Ala. R. Civ. P., motion based on the ineffectiveness of his trial counsel in the juvenile court.

As noted above, the father is incarcerated for a felony and is serving a 99-year prison sentence, which alone provided a ground for termination of his parental rights. See Ala.Code 1975, former § 26-lS^laXJ). The record reflects that the juvenile court had ordered that the father be transported from prison to attend the hearing. However, according to a statement on the record by the juvenile court judge and a similar explanation contained in the judgment terminating the father’s parental rights, prison officials refused to transport the father pursuant to the juvenile court’s order, citing as a reason his murder conviction and lengthy sentence. The father’s trial counsel did request a continuance; however, the trial court denied it. The reason stated for denying the requested continuance was that the father’s testimony was not necessary because he had given a deposition in September 2008 in which he testified regarding the main issue before the court: potential viable alternatives for the child’s custody.

The father does not argue that due process required his presence at the hearing. He admits that the fact that he was represented by counsel and had the opportunity to present testimony through deposition satisfied the requirements of due process. See Pignolet v. State Dep’t of Pensions & Sec., 489 So.2d 588, 591 (Ala.Civ.App.1986) (holding that due-process concerns are satisfied when an incarcerated parent facing a termination of parental rights is represented by counsel and has the opportunity to present testimony through a deposition). However, the father does argue that the juvenile court abused its discretion in denying the continuance. “Whether to grant or to deny a motion to continue in a termination-of-parental-rights case is within the discretion of the court and its decision will not be reversed absent a showing that the court has abused its discretion.” S.C.D. v. Etowah County Dep’t of Human Res., 841 So.2d 277, 278 (Ala.Civ.App.2002).

We cannot agree with the father that the trial court abused its discretion in denying the requested continuance. The father asserts that his live testimony would have contained more recent information relevant to the proceedings and, thus, he says, would have been superior to the deposition testimony presented as a result of his absence. However, the testimony of the father in his deposition was confined mostly to explaining that many of his relatives were not suitable resources for the child because of their criminal histories or their absence from both the father’s and the child’s lives. The only relative that the father suggested in his deposition as an alternative custodian was D.M., who DHR investigated. The father has not specifically demonstrated how his live testimony would have been any different than the testimony he gave at the deposition, and, even if the father had provided additional information about potential alternative resources at the final hearing, the last-minute nature of any such suggestions would likely have precluded those potential resources from being considered viable alternatives. See C.T. v. Calhoun County Dep’t of Human Res., 8 So.3d 984, 989 (Ala.Civ.App.2008); B.S. v. Cullman County Dep’t of Human Res., 865 So.2d 1188, 1196-97 (Ala.Civ.App.2003) (affirming the trial court’s determination that a family member suggested as an alternative placement for the first time on the date of trial was not a viable alternative to termination of a parent’s parental rights). Thus, we find no abuse of the trial court’s discretion in its denial of the requested continuance.

The father next argues that the trial court erred when it concluded that clear and convincing evidence established the lack of a viable alternative to the termination of his parental rights. According to the father, DHR’s failure to investigate any relatives other than D.M. was a violation of its duty to initiate investigations into potentially viable alternatives. He also argues that the juvenile court lacked sufficient evidence to reject D.M. as an alternative placement for the child.

We first note that DHR does have the burden to initiate investigations of potentially viable alternative placements for children in its custody. Ex parte J.R., 896 So.2d 416, 428 (Ala.2004) (quoting D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 591 (Ala.Civ.App.1999)) (“ ‘DHR — not the prospective custodian — has the burden of initiating investigations .... ’ ”)• However, the father also had a role to play in the location of viable alternative placements. “ ‘Although DHR has a responsibility to investigate alternate relative placements for a child, that obligation does not entirely alleviate the responsibility of the parent who purports to oppose the termination of his or her parental rights of making DHR social workers aware of alternative placement possibilities.’ ” J.F.S. v. Mobile County Dep’t of Human Res., 38 So.3d 75, 78 (Ala.Civ.App.2009) (quoting B.S., 865 So.2d at 1197). The father testified in his deposition about his family members. He specifically mentioned D.M. as the only relative he wanted to take custody of the child. He indicated that he had not seen several of his siblings for more than 10 years, mentioned that at least 2 of his siblings had a criminal history or were incarcerated, and also stated that 1 relative was too old and could not handle taking care of the child. Thus, DHR properly investigated the only relative that the father himself suggested out of all the relatives the father listed in his deposition. We conclude, therefore, that the DHR met its burden of investigating potential alternative placements for the child.

We now turn to the father’s argument that the juvenile court’s conclusion that no viable alternatives to termination of his parental rights existed was not supported by the evidence at trial.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “ ‘Clear and convincing evidence’ ” is “ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-ll-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). Furthermore, when the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

As noted above, DHR investigated D.M. as a potential placement for the child. Her home study was favorable. According to the only witness to testify at the trial, the most recent DHR caseworker, Kimberly Holder, the child had stated a preference to remain in the custody of the foster parents. Holder said that she had relayed the child’s preference to D.M., who had responded by saying that she wanted whatever was best for the child, even if that meant that he remained with the foster parents. Holder further explained that the foster parents did not intend to adopt the child but had agreed to continue to serve as a long-term foster-care placement for the child.

Based on the above-stated evidence, the juvenile court rejected D.M. as a placement alternative, thus concluding that no viable alternatives to termination of the father’s parental rights existed. In support of the conclusion that no viable alternatives existed, the judgment recites the fact that the child prefers to remain in long-term foster care with the foster parents. The juvenile court’s judgment also states that the child had never met D.M. However, the record contains no testimony from Holder to that effect, and, in fact, the father testified in his deposition that D.M. had established some type of relationship with the child at some point. Thus, the juvenile court’s finding that D.M. had never met the child is not supported by clear and convincing evidence, and we will not consider that finding as a basis for the juvenile court’s rejection of D.M. as a viable alternative.

Thus, we are confronted with the question whether the existence of D.M. as a potentially viable placement alternative prevents the termination of the father’s parental rights. There is no question that the reunification of the father and the child is not a foreseeable possibility. The father does not challenge the establishment of grounds to terminate his parental rights, and his long-term imprisonment virtually guarantees that he will not be in a position to serve as a the child’s parent for the foreseeable future. In such a case, is the fact that a possible alternative placement might exist sufficient to prevent termination of a parent’s parental rights?

In D.M.P. v. State Department of Human Resources, 871 So.2d 77, 94 (Ala.Civ.App.2003), then Judge Murdock authored a plurality opinion in which one Judge concurred and three Judges concurred in the result and concluded that the existence of a viable alternative was not an absolute bar to termination of parental rights in cases in which the parent was shown to be “irremediably unfit.” He reasoned that the basis for the requirement that viable alternatives be pursued before the termination of parental rights grew out of the strict-scrutiny analysis that had to be applied to any state action interfering with the fundamental right of a parent to the care, custody, and companionship of his or her child. D.M.P., 871 So.2d at 92. He posited that

“if there is a custodial arrangement that is viable — that is, a custodial arrangement involving a fit custodian who can provide a stable environment meeting the child’s physical, financial, and emotional needs pending the rehabilitation/ reunification process12 — the teaching of Roe [v. Conn, 417 F.Supp. 769 (M.D.Ala.1976),] and Miller [v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala.Civ.App.1979),] is that this alternative must be pursued. This result is dictated by and consistent with the application of the two prongs of strict-scrutiny analysis (‘compelling state interest’ and ‘less drastic measures’) and with the State’s ultimate concern for the best interests of the child. It is consistent with the latter because of the legal presumption that a child’s best interest and welfare are served by remaining in the custody of a fit parent.13 Also, this result is consistent with the scheme contemplated by Ala.Code 1975, § 12-15-65, § 12-15-71, and § 26-18-7 and with many of our caselaw pronouncements concerning so-called ‘viable alternatives.’ See, e.g., Ex parte State Dep’t of Human Res., 624 So.2d 589, 592-93 (Ala.1993) (‘[W]hen the State is petitioning to terminate parental rights, the trial court must find from clear and convincing evidence that the child is dependent and ... the court must determine whether all viable alternatives to termination have been explored.’ (emphasis added)); Ex parte Ogle, 516 So.2d 243, 244 (Ala.1987) (noting that a schizophrenic parent was making progress towards rehabilitation, but was not yet capable of assuming custody of the child, and explaining that ‘[b]efore parental rights may be terminated, all viable alternatives to termination of those rights must be examined to ensure that there is no less drastic measure available’); Moore v. State Dep’t of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985) (‘If dependency is found, the court must then find that there exists no viable alternative to termination of the parent’s custodial rights.’ (citing Glover v. Alabama Dep’t of Pensions & Sec., 401 So.2d 786 (Ala.Civ.App.1981) (emphasis added))); see also M.H. v. Calhoun County Dep’t of Human Res., 848 So.2d 1011, 1013 (Ala.Civ.App.2002) (the trial court must ‘determine that there exists no alternative to termination’ (emphasis added)); M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala.Civ.App.2000) (same); W.F. v. State Dep’t of Human Res., 704 So.2d 483 (Ala.Civ.App.1997) (same); L.A.G. v. State Dep’t of Human Res., 681 So.2d 596, 598 (Ala.Civ.App.1996) (‘the court must consider and reject all alternatives to termination of parental rights’).
“Conversely, where it is demonstrated that the parents are not capable of being rehabilitated or that the ‘conduct or condition’ of the parents that makes them unfit to retain custody of their children ‘is unlikely to change in the foreseeable future’ or where, as explained above, reunification is otherwise not an appropriate goal, obviously no alternative can be considered viable to the end of returning the child to a normal custodial relationship with his or her parent. The State’s failure, therefore, to pursue some alternative to termination that might exist in such a case would not necessarily14 be fatal to its petition for termination of a parent’s rights.15 This understanding of viable alternatives likewise has been well recognized in our cases.
“12 Obviously, in most cases where reunification is a reasonable prospect within the ‘foreseeable future’ there will be a viable placement alternative that will allow the necessary time for the rehabilitation/reunification process to be accomplished.
“13 ‘The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that this primary parental right of custody is in the best interest and welfare of the child as a matter of law.’ Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983). ‘The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for.’ Striplin v. Ware, 36 Ala. 87, 89 (1860) (quoted with approval in Ex parte D.J., 645 So.2d 303 (Ala.1994)).
“14 See discussion, infra, of the ‘second prong* in Ex parte Beasley[, 564 So.2d 950 (Ala.1990),] and the obligation of trial courts to ‘consider’ alternatives to termination that might be in the ‘best interests’ of a child.
“15 If this understanding were not correct (that is, if a termination could not occur whenever there exists some family resource or other alternative custodial arrangement, irrespective of the irremediability of an unfit parent), a fit custodial parent could never successfully seek the termination of the other parent’s parental rights. See generally Ala. Code 1975, § 26 — 18—5(a); Ex parte Johnson, 474 So.2d 715 (Ala.1985) (concluding that a parent could petition to terminate the other parent’s parental rights under the [former Alabama Juvenile Justice Act], even before the enactment of the [1984 Child Protection Act]).”

D.M.P., 871 So.2d at 91-93.

Ultimately, then Judge Murdock concluded:

“In other words, once ‘the interests of the child and the natural parents ... diverge’ because of irremediable parental unfitness, the rationale for the legal presumption that custody in the natural parent is in the best interest of the child no longer exists. At that juncture, the State may proceed, unaffected by a parental presumption, to determine simply what disposition of the child would then be in his or her best interest. The possibility of some custodial arrangement that would be a suitable alternative to the termination of parental rights no longer constitutes an absolute bar to termination. As discussed below, however, the State may still consider such alternatives in determining what disposition is in the best interest of the child.
“In short, so long as reunification with the parents is a foreseeable likelihood, the State has no choice but to consider and pursue all viable alternatives to such termination. Once ‘grounds for termination’ exist, however, reunification by definition is no longer a foreseeable’ alternative, the constitutional and state-law presumption in favor of the natural parents is lost, the ‘interests of the child and the natural parents ... diverge, ’ and the only remaining consideration is the direct question, unencumbered by a parental presumption, of what is in the child’s ‘best interest.’

Id. at 94 (emphasis added).

Applying that rationale to the case before us today yields the conclusion that the existence of D.M. as a potentially viable placement alternative would not, in and of itself, prevent the juvenile court from terminating the. father’s parental rights, if reunification of the father and the child were no longer a foreseeable alternative. Id. The evidence at trial clearly established that grounds for termination of the father’s parental rights existed and that reunification of the father and the child was not foreseeable in the reasonably near future. Thus, we conclude that the existence of D.M. as a potential viable placement alternative was not a bar to the termination of the father’s parental rights. See id.

However, as then Judge Murdock explained in D.M.P., we must next consider whether the juvenile court could have determined that termination of the father’s parental rights was in he child’s best interest despite the possibility of utilizing D.M. as an alternative placement. Id. The evidence before the juvenile court indicated that the child preferred to remain in the custody of his foster parents, a placement alternative that DHR approved. This court has permitted a juvenile court to consider the child’s wishes and “ ‘the retention of the child in the same environment’ ” as factors to be considered in a termination-of-parental-rights proceeding. See T.T. v. State Dep’t of Human Res., 796 So.2d 365, 368 (Ala.Civ.App.2000); see also M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000) (indicating that a child’s need for permanency and stability must overcome a parent’s fruitless attempts at rehabilitation and noting that the child in that appeal had “himself ... communicated the desire for permanency and stability in his life”). Furthermore, the evidence also revealed that the father had seen the child only once, when the child was an infant. The evidence is without dispute that the father and the child had never developed a parent-child relationship because of the father’s long-term incarceration.

In addition, neither DHR nor the father called D.M. as a witness at trial, and the father presented no evidence regarding D.M.’s willingness or ability to serve as a placement for the child. The only information regarding D.M. in the record is that her home study had been favorable and that she wanted the child’s best interest to be served, even if that meant that he would remain in the custody of his foster parents.

Like the juvenile court in D.M.P., the juvenile court in the present case had no evidence before it that would show that placement with D.M. would be in the child’s best interest. See D.M.P., 871 So.2d at 97. Moreover, the evidence regarding the lack of a relationship between the father and the child would not support a conclusion that the termination of the father’s rights was not in the best interest of the child because of a significant emotional bond between the two; nor was there evidence of another factor militating against the termination of the father’s rights. See id. at 95 n. 17. Thus, we conclude that the juvenile court’s determination that the child’s interests would best be served by termination of the father’s parental rights is supported by the evidence.

In conclusion, we reject the father’s argument that the juvenile court abused its discretion in denying him a continuance to ensure his presence at the trial. We also reject the father’s argument that DHR failed to properly locate and investigate viable alternative placements for the child. Furthermore, because we have determined that the existence of D.M. as a potentially viable alternative placement for the child is not a bar to the termination of the father’s parental rights, see D.M.P., 871 So.2d at 94, and because we have determined that the evidence supports the conclusion that termination of the father’s parental rights is in the child’s best interest despite the possibility that placement with D.M. might be an option, see id. at 97, we conclude that the juvenile court’s judgment terminating the father’s parental rights should be affirmed.

AFFIRMED.

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

      . By Act No. 2008-277, Ala. Acts 2008, the Alabama Legislature, among other things, amended and renumbered Ala.Code 1975, § 26-18-7, sind enacted the Alabama Juvenile Justice Act ("AJJA”), codified at Ala.Code 1975, § 12-15-101 et seq. The effective date of the AJJA is January 1, 2009.