text:
    L.T. v. W.L. and T.L.
    2080369.
    Court of Civil Appeals of Alabama.
    Nov. 6, 2009.
    Rehearing Denied Jan. 22, 2010.
    Certiorari Denied April 9, 2010 Alabama Supreme Court 1090592.

      Barry C. Leavell of Leavell & Associates, Attorneys at Law, L.L.C., Northport, for appellant.
    Kenneth E. Gibbs and Harold S. Patrick of Gibbs, Patrick & Sears, LLP, Opelika, for appellees.
   THOMAS, Judge.

L.T. (“the mother”) has four children. Her third child, C.K. (“the child”), was born prematurely in July 2003. In October 2003, while the mother was pregnant with her fourth child, W.L. (“the maternal grandfather”) and T.L. (“the maternal stepgrandmother”) (collectively referred to as “the maternal grandparents”), in response to pressure from family members and involvement by the Montgomery County Department of Human Resources (“DHR”), began caring for the child overnight and on weekends. During the week, the maternal grandfather would take the child to the mother’s residence so that the mother could care for the child during the day.

However, this arrangement was discontinued in December 2003, after the child was repeatedly returned to the maternal grandparents wearing the same diaper that had been placed on her that morning. The child’s bottom was raw as a result of the mother’s failure, even after instruction, to properly tend to diaper changes. In addition, according to the maternal step-grandmother, the child was failing to thrive, having lost weight and having contracted a scalp fungus.

The child continued to reside with the maternal grandparents throughout 2004, with little involvement from the mother. In March 2005, the maternal stepgrand-mother filed a dependency petition seeking legal custody of the child; that action was assigned case number JU-05-086.01. The petition was granted; however, the mother maintains that she was never served with the dependency petition or given notice of the March 2005 hearing in the dependency action.

In March 2007, the maternal grandparents filed a petition seeking the termination of the mother’s parental rights; that action was assigned case number JU-05-036.03. The mother and V.L., the child’s maternal great-grandmother, filed separate petitions seeking custody; those petitions are not contained in the record on appeal. The mother, in case number JU-05-036.03, also filed a Rule 60(b), Ala. R. Civ. P., motion seeking to set aside the default judgment in the March 2005 dependency action.

In July 2008, the juvenile court held a hearing on the competing petitions. The mother, the maternal stepgrandmother, the maternal grandfather, and the maternal great-grandmother testified at the hearing. The overwhelming tendency of the evidence was that the mother had simply abdicated her parental responsibilities to the child to the maternal grandparents.

The mother testified that the child first went to stay with the maternal grandparents when DHR asked her family for assistance during her fourth pregnancy, which was a high-risk pregnancy. According to the mother, the child only spent weekends with the maternal grandparents from October 2003 to some time in early 2005. She explained that the maternal step-grandmother would not let the mother take the child home after an Easter gathering in 2005, resulting in an altercation between the mother and the maternal stepgrandmother. The mother denied having knowledge at that time that the maternal grandparents had received a judgment awarding them custody of the child in March 2005.

At the hearing in July 2008, the mother admitted that she had tested positive for THC, the chief intoxicant in marijuana, in August 2007. She testified that she had worked at three different places of employment during the year preceding the hearing and that she had worked at each of them for between two and four months. Despite indicating that she had been employed for at least part of the time the child was in the custody of the maternal grandparents, the mother admitted that she had not paid any child support due under the 2005 custody judgment. She did say that she had sent some items of clothing for the child but that they had been returned to her. The mother further admitted that she had had no contact with the child from Easter 2005 to Thanksgiving 2006 and again from Thanksgiving 2006 to August 2007. The mother explained that her failure to contact or communicate with the child had resulted from her belief that another family member had secured a restraining order against her.

The maternal great-grandmother, who was 65 years old at the time of trial, explained that she had filed a petition seeking custody of the child because she believed that, if the mother did not have custody, she would be the next logical choice for custody because she had had legal custody of the mother when she was a minor. According to the maternal great-grandmother, she had had custody of the mother because the mother’s parents, one of whom is the maternal grandfather, had been unfit due to drug use. The maternal great-grandmother indicated that she had cared for the mother’s oldest child on a very frequent basis since his birth and that the mother’s second oldest child frequently stayed with her as well; the evidence indicated that those two children stayed with the maternal great-grandmother on a nearly constant basis at the time of the July 2008 trial. She also testified that the maternal grandfather and the mother had smoked a drug of some type in her backyard one to two years before the July 2008 trial; the maternal grandfather denied smoking any drug and had passed a drug test.

The maternal grandfather testified that he had become involved with the child when DHR contacted him about complaints it had received about the mother in the fall of 2003. Although DHR originally requested that he take custody of all three of the mother’s children, the maternal grandfather said that he had responded that he and his wife could not take on the responsibility of caring for three young children at that time. Because the older two children had been frequently cared for by the maternal great-grandmother, who was willing to continue to assist the mother, the maternal grandfather had agreed to assume responsibility for the child, who was an infant. The maternal grandfather said that the decision to take the child was prompted by the fact that being up at night caring for a three-month-old infant was difficult for the maternal great-grandmother.

When questioned about contact between the mother and the child since the maternal grandparents had taken custody of the child, the maternal grandfather responded by explaining that the mother had not contacted the child at all. In addition, the maternal grandfather noted that the mother had not provided any monetary support or personal-care items for the child. According to the maternal grandfather, even on the rare instance when the mother was in the presence of the child, like at a May 2008 birthday party for the maternal grandfather, the mother only spent 5 to 10 minutes with the child. The maternal grandfather stated that the two telephone calls the mother had made to the maternal grandfather since August 2007 did not include a request to speak with the child.

When asked why he had decided to petition for a termination of the mother’s parental rights, the maternal grandfather mentioned the desire to provide the child with all the benefits she would be entitled to if he adopted her. The maternal grandfather said that he would not be opposed to continuing to have custody of the child while the mother improved her ability to care for the child. However, he noted that the mother had shown no interest in the child and that her failure to visit with the child indicated to him that she did not care about the child.

The maternal stepgrandmother testified that she had been quite concerned about the health of the child when the maternal grandparents first became involved in her care in October 2003. She said that they intended to assist the mother until she was better able to care for the child. According to the maternal stepgrandmother, her experience as a labor and delivery nurse caused her to suspect that the child, who had been born prematurely, was not receiving the special care she required and might be suffering a failure to thrive. Specifically, the maternal stepgrandmother noted that the child’s skin was especially sensitive and that the child required frequent diaper changes to protect her skin; however, as noted above, the mother did not change the child’s diaper even once during the day, resulting in a raw, sore, and even bleeding bottom.

The maternal stepgrandmother said that at first she had tried to maintain a bond between the mother and the child. She said that the child knew the mother was her mother; however, the maternal step-grandmother admitted that the child called her “mama.” The maternal stepgrand-mother said that, in the earlier months of the maternal grandparents’ care of the child, the maternal stepgrandmother had telephoned the mother to allow the child to say things to her over the telephone. This practice ended, said the maternal step-grandmother, when the mother’s telephone service was suspended or terminated.

When questioned regarding the Easter 2005 altercation, the maternal stepgrand-mother explained that she had objected to the mother’s taking the child home with her. The maternal stepgrandmother said her objections had been based on the safety of the child because, at the time, the mother’s automobile was overcrowded with passengers already, the mother had no child safety seat for the child to ride in, and it was dark and rainy outside. She said that she had taken the child from the mother and that she might have pushed the mother toward the door while telling her to leave. Although she admitted that she told the mother that she could return when she could “respect the house,” the maternal stepgrandmother said that she did not mean that the mother could not ever return, but only that she could return when she showed the proper respect for the maternal stepgrandmother and her rules.

When she was asked why she had filed the petition seeking to terminate the mother’s parental rights, the maternal step-grandmother said that she was motivated by the need for stability in the child’s life. The maternal stepgrandmother admitted that she had not been in the mother’s home or around the mother for two years, so she could not know whether the mother had improved her lifestyle. However, according to the maternal stepgrandmother, maintaining steady employment was not the mother’s strong point.

After the July 2008 trial, the juvenile court entered a judgment denying the mother’s motion to set aside the March 2005 judgment, denying the mother’s and the maternal great-grandmother’s petitions for custody, and deferring a ruling on the termination petition. The juvenile court outlined the steps for the mother to take between the entry of the July 14, 2008, judgment and the December 15, 2008, review hearing set in the juvenile court’s judgment. Those steps included passing two random drug tests, completing parenting classes, exercising visitation as set out in the judgment, and paying $50 per month in child support, $10 of which was to be applied to the child-support ar-rearage accumulated between March 2005 and July 2008.

On December 15, 2008, the juvenile court held the review hearing contemplated by the July 2008 judgment. The mother failed to attend that hearing. She was, however, represented by counsel. The juvenile court requested that the mother’s counsel provide evidence regarding the mother’s compliance with the July 2008 judgment. The mother’s attorney admitted that she had no proof that the mother had completed parenting classes; admitted that the mother had not taken any random drug screens; admitted that, to her knowledge, the mother had not availed herself of more than one visit with the child, although she said that the mother had indicated that she had had difficulty contacting the maternal grandparents to arrange visitation; and admitted that the mother had not paid any child support. The maternal stepgrandmotlier testified, reiterating the mother’s failure to comply with those requirements of the July 2008 judgment as well. The juvenile court entered a judgment terminating the mother’s parental rights. From that judgment the mother timely appeals.

“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 “ ‘[e]vi-dence 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, § 6-11-20(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 has 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).

Section 26-18-7(a), Ala.Code 1975, specified the grounds for terminating parental rights:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

In deciding whether a parent is unable or unwilling to discharge his or her responsibilities to and for the child, the juvenile court may consider several factors, including whether the parent abuses alcohol or controlled substances so as to render him or her incapable of caring for the child, § 26-18-7(a)(2), whether the parent has abused the child, § 26-18-7(a)(3), and whether reasonable efforts to rehabilitate the parent have failed, § 26-18-7(a)(6). When a child is not in the custody of his or her parent, a juvenile court must consider, but is not limited to, the following factors:

“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Ala.Code 1975, § 26-18-7(b).

In its judgment terminating the mother’s parental rights, the juvenile court found that the mother was unable or unwilling to discharge her responsibilities to the child and that the mother’s condition was unlikely to change in the foreseeable future. The court specifically determined that the mother had failed to adjust her circumstances to meet the needs of the child, that the mother had failed to support the child on a regular basis, and that the mother had failed to maintain regular contact with the child. The juvenile court further found that it had given the mother ample opportunity to rehabilitate herself but that the mother “had failed to do so or to demonstrate any desire to do so.” Finally, the court found that no less drastic alternatives that would serve the child’s best interest were available and that it would be in the child’s best interest that the mother’s parental rights be terminated so that the child could have “long term stability with a family who can consistently love, care and provide for her.”

The mother’s first argument concerns the juvenile court’s failure to set aside the 2005 dependency and custody judgment on her Rule 60(b) motion. The mother’s motion was based on her assertions that she had not been provided notice of the hearing and had not even been served with the petition in the dependency action. However, the mother fails to cite any authority regarding the standard applicable to her motion. Because she fails to support her argument on appeal with citations to proper authorities, see Rule 28(a)(10), Ala. R.App. P., we have no alternative but to affirm the judgment of the juvenile court insofar as it denied the mother’s Rule 60(b) motion. Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (stating that “[t]his court will address only those issues properly presented and for which supporting authority has been cited” (emphasis added)).

The mother’s second argument is that the evidence presented at trial does not support the termination of her parental rights. The mother challenges both the quantum of evidence, arguing that the evidence was not clear and convincing, and the tendency of the evidence, arguing that the evidence fails to prove dependency of the child or that no viable alternatives to the termination of her parental rights existed. We disagree.

As part of her argument that the evidence did not establish dependency, the mother complains that the juvenile court made a determination regarding the child’s dependency at the time of the filing of the original dependency action in 2005 and not at the time of the termination hearing. The juvenile court did determine that the child was dependent in 2005. However, we do not agree with the mother that the juvenile court failed to determine whether the child remained dependent at the time of the termination trial. The juvenile court’s findings supporting its termination judgment clearly establish that the child remained dependent due to the characteristics and habits of the mother.

The main emphasis of the mother’s argument on appeal is that the evidence at trial did not prove dependency because the evidence did not establish any “failings” on her part as a mother. However, the flaw in the mother’s argument is that grounds for terminating parental rights are not limited solely to issues involving drug or alcohol dependence or unsanitary living conditions. Although the juvenile court did not find that the mother had abandoned the child, her conduct toward the child comes close to abandonment, and abandonment has long been a statutory basis for the termination of parental rights. § 26-18-7(a)(l). The failure of the mother to provide support for the child and her failure to visit or maintain anything resembling communication or contact with the child are also “failings” of the mother that can be used as bases for terminating parental rights. § 26 — 18—7(b)(1), (2), and (3).

The mother fails to recognize that she need not be unable to parent her child when the evidence demonstrates that she is unwilling to discharge her responsibilities to and for the child. See R.S. v. R.G., 995 So.2d 893, 905 (Ala.Civ.App.2008) (Moore, J., concurring in the result). As Judge Moore explained in his opinion concurring in the result is R.S., although a parent might well be able to parent his or her child, when “clear and convincing evidence demonstrate^] that he [or she] [is] obviously not willing to discharge his [or her] parental responsibilities” a termination of parental rights may well be warranted. R.S., 995 So.2d at 905. Like the mother in this case, the father in R.S. had not made any effort to support his child and “was content to leave the custody and care of the child to the maternal grandparents” for almost two years. Id. at 905. Although the mother in the present case did finally bring a custody petition to request the return of the child to her custody in 2007, it appears that she did so after being warned that the maternal grandparents intended to file their petition to terminate her parental rights. Before that time, the mother took no steps to assert her parental rights to the child and did nothing to discharge her parental responsibilities.

The evidence at trial clearly indicated that the mother took little interest in the child after the maternal grandparents took over parenting duties for the child in October 2003. The mother failed to visit the child other than on a few rare occasions between December 2003 and December 2007 and did not provide for the child’s support in any meaningful manner, although she might have sent a few items of clothing on occasion. The child was clearly dependent due to the mother’s lack of concern for the child’s welfare and the mother’s failure to make any effort to maintain contact or communication with the child, despite being given a final opportunity to do so after the entry of the July 2008 judgment.

The mother next argues that the record indicates that the evidence failed to establish her current conditions, which, she contends, fails to satisfy the requirement that a judgment terminating parental rights be based on clear and convincing evidence. See, e.g., D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003) (“This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.”). However, in cases like D.O., the evidence at trial had established that the parent was making progress toward rehabilitation and reunification at the time of the termination trial and that the evidence of his or her earlier history did not adequately portray the parent’s current, improved ability to parent his or her child. See D.O., 859 So.2d at 444 (“The trial court’s decision to terminate the mother’s parental rights was premature, considering the evidence indicating that the mother has made a continuing effort to change her circumstances and that she was making significant progress at the time of the termination hearings.”). In contrast, the evidence at the trial in this case did not show any improvement in the mother’s desire to serve as a parent for the child. Instead, the tendency of the evidence was that the mother does not have the desire to make any efforts to assume parental responsibility for the child. In the July 2008 judgment, the juvenile court set out for the mother what would be expected of her in order to convince the court that termination of her parental rights was not warranted, and the mother failed to complete even one of the requirements of the July 2008 judgment. That evidence proves that the mother’s current condition was one of apathy, unconcerned that her parental rights to her child would be terminated for her failure to act.

To the extent the mother argues that the evidence failed to demonstrate that no viable alternatives to termination existed, we note that the mother provided no alternatives in her arguments to this court. She only asserts that the maternal grandparents failed to prove that none existed. However, if the mother is arguing that maintaining the status quo would be a viable alternative to termination of her parental rights, we note that we have previously rejected such a contention when grounds for termination exist and the situation is such that, in the foreseeable future, reunification will not be possible. See K.A.P. v. D.P., 11 So.3d 812, 820 (Ala.Civ.App.2008) (rejecting maintenance of the status quo when it appeared that potential reunification would be at least 10 years in the future and commenting that, in order to achieve stability and continuity for children, “appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interest of the child”); B.J.C. v. D.E., 874 So.2d 1109, 1118 (Ala.Civ.App.2003), overruled on other grounds, F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007) (rejecting the father’s argument that “maintaining the situation the children had been in for the six years before the termination hearing by leaving them to be raised by family members” was a viable alternative to termination when the father had failed to consistently support or visit with the children and his situation was unlikely to change in the foreseeable future); A.N.S. v. K.C., 628 So.2d 734, 735 (Ala.CivApp.1993) (rejecting the maintenance of the status quo as an alternative to termination and noting that the father was expecting to be released from prison in seven years but that “[t]he maternal aunt and uncle were willing to adopt the children to give them a feeling of permanency and security”). Based on the mother’s failure to put forth any effort to assume her parental responsibilities to and for the child and based on the fact that the lack of contact and communication between the mother and the child evidences a lack of a parent-child bond between the two, we agree with the juvenile court’s implicit conclusion that maintaining the status quo in the present case would not be a viable alternative to termination of the mother’s parental rights.

Finally, the mother argues that the termination judgment was based on the convenience of the maternal grandparents as a means to end familial conflict. Both our supreme court and this court have reversed judgments terminating parental rights when the basis for the termination was merely the convenience of the parties. See Ex parte Brooks, 513 So.2d 614, 617 (Ala.1987), overruled on other grounds by Ex parte Beasley, 564 So.2d 950 (Ala.1990); S.D.P. v. U.R.S., 18 So.3d 936, 942 (Ala.Civ.App.2009); and State ex rel. McDaniel v. Miller, 659 So.2d 640, 642 (Ala.Civ.App.1995) (reversing a judgment terminating the father’s parental rights entered on an agreement of the parties and rendering a judgment denying the parents’ joint petition to terminate the father’s parental rights). In Ex parte Brooks, for example, our supreme court pointed out that the parents’ agreement to terminate the father’s parental rights would waive the child’s right to receive support from and to inherit from his father without bestowing on him any perceivable benefit. Ex parte Brooks, 513 So.2d at 617; see also Miller, 659 So.2d at 642 (noting that the termination of the father’s parental rights had been accomplished merely for the convenience of the parties without consideration for any of the child’s rights to current and future support or inheritance).

We do not find those cases to be applicable to this situation, however, because the parties are not in agreement to terminate the mother’s parental rights for the sake of convenience and because the evidence reveals that the child’s best interests would be served by a termination of those rights. Unlike the situations present in Ex parte Brooks and Miller, where the children were going to be relying solely on their mothers for their support and were not receiving any benefit in return for giving up the right to be supported by their fathers, the child in the present case will be gaining a permanent home where she will be provided for both emotionally and materially by her maternal grandparents.

Because clear and convincing evidence adduced at the July 2008 and the December 2008 hearings support the juvenile court’s conclusion that the mother is unable or unwilling to discharge her parental responsibilities to and for the child and that her conduct or condition is unlikely to change in the foreseeable future, we agree that grounds for terminating the mother’s parental rights existed. In addition, the evidence supports the conclusion that no other viable alternative would best serve the interests of the child and that the child’s best interests are served by the judgment terminating the parental rights of the mother. The judgment terminating the mother’s parental rights is therefore affirmed.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

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

      . By Act No. 2008-277, Ala. Acts 2008, the Alabama Legislature, among other things, amended and renumbered Ala.Code 1975, § 26-18-7, and 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; the mother has not asserted that the AJJA applies in this case.


source: Caselaw Access Project

author: MOORE, Judge. THOMAS, Judge,

license: Public Domain

text:
    Michael SMITH and Bridgette Smith v. William Lee ESTES and Jackie Clark Estes.
    2080678.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Neil Taylor, Jr., Russellville, for appellants.
    Bethany Ellison Malone, Tuscumbia, for appellees.
   MOORE, Judge.

On July 15, 2008, William Lee Estes and Jackie Clark Estes filed an unlawful-de-tainer/eviction action against Michael Smith and Bridgette Smith in the Colbert District Court. Following a bench trial, the district court entered a judgment on August 14, 2008, in favor of the Esteses and against the Smiths. On August 25, 2008, the Smiths appealed the district court’s judgment to the Colbert Circuit Court.

On December 29, 2008, the Smiths filed a motion for a partial summary judgment. The Esteses filed a motion for a summary-judgment on January 22, 2009. Following a hearing on the summary-judgment motions, the circuit court purported to enter a judgment on March 20, 2009, denying the motion for a partial summary judgment filed by the Smiths, granting the Esteses’ summary-judgment motion, and awarding the Esteses $1,647, plus court costs. The Smiths filed a notice of appeal to this court on April 24, 2009.

“Although neither party has raised an issue regarding this court’s jurisdiction, ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Baker v. Baker, 25 So.3d 470, 472 (Ala.Civ.App.2009) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). See also Rule 2(a)(1), Ala. R.App. P.

Section 6-6-350, Ala.Code 1975, which governs appeals from a district court to the circuit court in an unlawful-detainer action, provides:

“Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven days after the entry thereof, and appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts.... ”

(Emphasis added.) Additionally, § 35-9A-461(d), Ala.Code 1975, which governs appeals from a district court to the circuit court in an eviction action, provides that

“any party may appeal from an eviction judgment entered by a district court to the circuit couH at any time within seven days after the entnj thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure.”

(Emphasis added.)

The district court entered its judgment on August 14, 2008; no post-judgment motions were filed. The Smiths filed their notice of appeal to the circuit court on August 25, 2008,11 days after the district court’s judgment was entered. Although Rule 6(a), Ala. R. Civ.App., provides that “[wjhen the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation,” this court has recently held that that provision is inapplicable to appeals to the circuit court in unlawful-de-tainer actions. Ex parte Arlington Props., Inc., [Ms. 2090038, March 26, 2010] — So.3d -, - (Ala.Civ.App.2010). Thus, contrary to the requirements of § 6-6-350 and § 35-9A-461, the Smiths did not file their notice of appeal to the circuit court within seven days of the entry of the district court’s judgment.

The timely filing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985). “[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.” Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006). Because the Smiths did not timely file their notice of appeal to the circuit court, the circuit court lacked subject-matter jurisdiction. See Williams v. Lollar, 8 So.3d 319, 321 (Ala.Civ.App.2008); see also Singleton v. Graham, 716 So.2d 224, 225-26 (Ala.Civ.App.1998). Because the circuit court lacked jurisdiction when it purported to enter the March 20, 2009, judgment, the circuit court’s judgment is void. Id. “A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)). Accordingly, we dismiss the Smiths’ appeal, albeit with instructions to the circuit court that it vacate its void March 20, 2009, judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

BRYAN, J., concurs in the result, without writing.

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

THOMAS, Judge,

dissenting.

I respectfully dissent. I continue to believe that the application of Rule 6(a), Ala. R. Civ. P., to compute the time for filing a notice of appeal to the circuit court from a judgment of the district court does not unconstitutionally expand the jurisdiction of the circuit court. See my dissent in Ex parte Arlington Props., Inc., [Ms. 2090038, March 26, 2010] — So.3d-,-(Ala.Civ.App.2010).

THOMPSON, P.J., concurs.


author: MOORE, Judge.

text:
    S.C. v. J.T.C.
    2080756.
    Court of Civil Appeals of Alabama.
    April 2, 2010.

      Linda Collins Jensen, Mobile, for appellant.
    Vanessa Arnold Shoots, Mobile, for ap-pellee.
   MOORE, Judge.

S.C. (“the mother”) appeals from a judgment of the Mobile Juvenile Court finding her child, T.E., dependent and awarding custody of the child to J.T.C., the child’s maternal grandmother (“the maternal grandmother”). We dismiss the appeal as being from a void judgment.

Background, Facts, and Procedural History

The facts pertinent to the disposition of this appeal are as follows. On November 30, 2007, the Mobile Juvenile Court (“the juvenile court”) entered a judgment declaring T.E.E. (“the father”) to be the father of the child, declining to find the child dependent, awarding custody of the child to the father, and awarding the mother “all reasonable rights of visitation.” Following the entry of that judgment, the child, the father, and the mother all moved to Virginia. The mother thereafter moved into “Section 8” federally subsidized housing for low-income families under the United States Housing Act of 1937, as amended, 42 U.S.C. Sec. 1437 et seq., with her boyfriend, her two older children, her niece, and her niece’s two children. While the mother was residing there, the father allowed the mother to exercise physical custody of the child during the weekdays while he exercised physical custody of the child on the weekends.

In September 2008, the mother was evicted from the federally subsidized housing; she then arranged to move in with C.D., the child’s maternal aunt. The mother did not immediately inform the father of the move because, the mother testified, she believed the father would be upset. However, she later told him and they planned for the father to pick up the child on October 25, 2008. The day before, October 24, 2008, the maternal aunt, without the mother’s knowledge, checked out the child from school early and transported the child to Mobile to the home of the maternal grandmother.

The maternal aunt testified that, when the mother moved in with her in September 2008, the child’s clothes appeared unclean and ill-fitting and the child’s hair was matted. She testified further that, over the next month, she observed that the mother allowed D.S., the child’s older sister, to provide primary care for the child and that D.S. would hit the child with her hand and with objects. K.C., the mother’s niece, testified that, during the time she lived with the mother, D.S., not the mother, had provided primary care of the child and that D.S. would slap and punch the child, which actions the mother would not effectively stop. K.C. also testified, contrary to the mother’s testimony, that the child would be allowed to stay outside and ride her bicycle at night without supervision and that the mother did not make the child go to bed at any certain time. According to the maternal aunt, the child informed her that D.S. had drug the child across a field, knocking out two of the child’s teeth. The maternal aunt testified that she took the child to the maternal grandmother’s house in order to protect the child from further danger.

On October 28, 2008, the maternal grandmother filed in the juvenile court an instanter petition for custody of the child, alleging the dependency of the child. That same date, the juvenile court granted the maternal grandmother “instanter temporary custody” of the child. On November 7, 2008, the juvenile court conducted an ore tenus hearing and, on November 12, 2008, it awarded the maternal grandmother “temporary custody” of the child based on the “emergency petition” filed by the maternal grandmother on October 28, 2008. The juvenile court then held a “final hearing” on February 11, 2009. On April 24, 2009, the juvenile court entered a judgment finding the child dependent, awarding the maternal grandmother custody of the child, and awarding the mother and the father daytime visitation in Mobile County upon 48 hours’ notice. The mother timely filed a motion for a new trial, which the juvenile court denied. The mother timely appealed to this court.

Discussion

On appeal, the mother first argues that the juvenile court lacked subject-matter jurisdiction to enter the April 24, 2009, judgment. Based on the following principles of law, we agree.

The November 80, 2007, judgment adjudicating the paternity of the child and determining the custody of the child gave the juvenile court continuing exclusive jurisdiction over custody matters relating to the child. See § 30-8B-202, Ala.Code 1975. That continuing jurisdiction ended when the child and the parents no longer resided in Alabama. See § 30-3B-202(a)(2), Ala.Code 1975. Thereafter, the juvenile court could modify its original custody determination “only if it ha[d] jurisdiction to make an initial determination under Section 30-3B-201.” § 30-3B-202(b).

Section 30-3B-201(a), Ala.Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UC-CJEA”), § 30-3B-101 et seq, Ala.Code 1975, sets forth when an Alabama court has jurisdiction to make an initial custody determination:

“(a) Except as otherwise provided in Section 30-3B-204[, Ala.Code 1975,], a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala.Code 1975,] and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

The juvenile court did not have jurisdiction pursuant to § 30-3B-201(a)(l) because Alabama was not “the home state of the child on the date of the commencement of the proceeding” and because Alabama “was [not] the home state of the child within six months before the commencement of the proceeding” on October 28, 2008. The juvenile court did not have jurisdiction pursuant to § 30-3B-201 (a)(2), (a)(3), or (a)(4) because Virginia was the home state of the child and Virginia had not “declined to exercise jurisdiction on the ground that this state is the more appropriate forum.” § 30-3B-201(a)(2). Thus, the juvenile court could exercise jurisdiction only “as otherwise provided in [Ala. Code 1975, § ]30-3B-204.” § 30-3B-201(a).

Section 30-3B-204 provides:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”

Based on the testimony of the maternal aunt and the mother’s niece, the juvenile court reasonably could have concluded that, when the child was removed to Alabama, the child was being “subjected to” or was “threatened with” “mistreatment or abuse.” § 30-3B-204(a). Hence, the juvenile court properly could have exercised temporary emergency jurisdiction over the child. It appears from the terms of its November 12, 2008, order, that the juvenile court acted pursuant to that jurisdietion when it granted the maternal grandmother “temporary custody” in response to her “emergency petition.”

However, temporary emergency jurisdiction did not authorize the juvenile court to conduct the subsequent dependency proceeding. Pursuant to § 30-3B-204(c),

“[i]f there is a previous child custody determination that is entitled to be enforced under this chapter, ... any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203[, Ala.Code 1975]. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.”

Hence, in the order awarding the maternal grandmother temporary custody to protect the child from the emergency circumstances, rather than setting the matter for further dependency proceedings, the juvenile court should have specified a definite period for the maternal grandmother to obtain a custody order from Virginia, see Feria v. Soto, 990 So.2d 418 (Ala.Civ.App.2008), or to obtain an order from the applicable Virginia court declining to exercise jurisdiction because the Alabama juvenile court was a more appropriate forum.

The April 24, 2009, judgment did not simply resolve the temporary emergency affecting the welfare of the child; it went further by finding the child dependent and by awarding custody of the child to the maternal grandmother, thereby modifying the November 30, 2007, judgment. Because the juvenile court did not have jurisdiction to enter that judgment, it is void. See M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala.Civ.App.2008) (“A juvenile court of this state may not rely on temporary emergency jurisdiction to transfer custody for an indefinite period based on the best interests of the child, regardless of the existence of the facts pleaded by DHR [the Department of Human Resources] in its dependency petitions.”). A void judgment will not support an appeal, and any appeal from a void judgment must be dismissed. See id.

Our disposition of this appeal does not alter the custody provision of the November 12, 2008, order. As stated above, the juvenile court had jurisdiction to enter a temporary order awarding the maternal grandmother custody for the protection of the child; the juvenile court simply exceeded its jurisdiction by failing to comply with the procedure set out in § 30-3B-204(c). In cases in which the juvenile court acts within its temporary emergency jurisdiction, but fails to follow the procedures set out in the UCCJEA, this court has remanded the case with directions for the juvenile court to comply with those procedures. See, e.g., M.B.L., supra. Therefore, we remand this case with instructions to the juvenile court to vacate its April 24, 2009, judgment and to revise its November 12, 2008, order to grant the maternal grandmother a definite and appropriate period in which to obtain an order from á Virginia court either assuming jurisdiction over this custody matter or declining to exercise jurisdiction in favor of the juvenile court in accordance with § 30-3B-201(3). In the event a Virginia court assumes jurisdiction, the juvenile court is directed to communicate and cooperate with that court to assure the protection of the child until a custody determination can be made in that court. See § 30-3B-204(d). If the Virginia court declines to exercise jurisdiction, the juvenile court may then reach the merits of the dependency petition filed by the maternal grandmother.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The UCCJEA defines the "home state” of the child, in pertinent part, as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” § 30-3B-102(7), Ala.Code 1975.

      . At the time of the November 7, 2008, hearing, § 12-15-153, Ala.Code 1975, authorized juvenile courts to exercise emergency jurisdiction for the protection of an endangered child and, when shown verified evidence of abuse or neglect injurious to the health or safety of the child likely to continue without a preventive order, to enter an ex parte custody order to alleviate the danger. Section 12-15-153 directed that, "[i]f an emergency order is issued, a hearing, after notice, must be held within 72 hours or the next judicial business day thereafter, to either dissolve, continue or modify the order.” The juvenile court did not comply with that deadline, but the mother does not raise that issue on appeal. We note that § 12-15-153 has been amended and renumbered as § 12-15-141, Ala.Code 1975. See Act No. 2008-277, § 9, Ala. Acts 2008.

      . It also appears that the juvenile court acted within its temporary emergency jurisdiction when it addressed the custody issue after learning that the child had been brought to this state without the permission of the parents. Section 30-3B-208, Ala.Code 1975, allows an Alabama court to assume temporary emergency jurisdiction in such instances, even though, generally, the court should decline to exercise jurisdiction in those circumstances.


text:
    Arthur Isaiah RADCLIFF v. HALL HOUSING INVESTMENTS, INC.
    2081196.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Arthur Isaiah Radcliff, pro se.
    Greggory M. Deitsch and Sandra L. Vi-nik of Sirote & Permutt, P.C., Birmingham, for appellee.
   MOORE, Judge.

Arthur Isaiah Radcliff appeals from a summary judgment entered by the Jefferson Circuit Court in favor of Hall Housing Investments, Inc. (“Hall”), on September 15, 2009. We affirm.

Facts and Procedural History

On July 1, 2009, Hall filed a complaint alleging unlawful detainer against Radeliff in the Jefferson District Court (“the district court”). In that complaint, Hall alleged that Radeliff had failed to pay rent and late fees in accordance with a written lease agreement after having been served with a written notice to pay and that he had failed to return possession of the leased premises to Hall. Hall claimed that Radeliff owed $2,315.20 in unpaid rent and late charges. Radeliff filed an answer on July 8, 2009, in which he denied responsibility and asserted a counterclaim against Hall. In his counterclaim, Radeliff asserted that he had signed a lease-renewal addendum to renew his lease on June 2, 2009, and that, at that time, Hall revealed that Radeliff had been due a monthly utilities allowance of $104 during the term of the original lease and the addendum but that, according to Radeliff, the utilities allowance had been marked through on his original lease and “N/A” had been written beside that allowance. Radeliff asserted that Hall had falsely represented to Rad-cliff that he was required to pay utilities, that he had signed the lease in rebanee on that representation, and that he had fallen behind in his rent only because he was withholding the utilities allowances that he alleged were due him from Hall.

A trial was held in the district court at which Hall appeared with counsel and Radeliff appeared pro se. On August 3, 2009, the district court entered an order in favor of Hall on its unlawful-detainer claim against Radeliff. The district court ordered that the subject property was to be restored to Hall; it determined that rent was ascertained to be $556 per month due on the first of the month; and it determined that rent in that amount had accrued since the date the action was commenced. The district court then set “the money claim” for trial on October 27, 2009.

On August 10, 2009, Radeliff filed a notice of appeal to the Jefferson Circuit Court (“the circuit court”). In that notice, Radeliff asserted that Hall had withheld utility reimbursements that were due Rad-cliff and alleged that Hall had “willfully and intentionally breached the lease contract, [its] fiduciary duty, suppressed material facts, and intentionally defrauded” Radeliff.

Hall filed a motion for a summary judgment in the circuit court on August 25, 2009. In that motion, Hall asserted that there was no genuine issue of material fact and that Hall was entitled to a judgment in its favor on its unlawful-detainer claim. In support of that motion, Hall attached the affidavit of Teria McCrear, Hall’s property manager, the lease agreement between Hall and Radeliff, the addendum to the lease, the eviction notice, and a breakdown of the rent due from Radeliff.

Radeliff filed a response to Hall’s summary-judgment motion on September 2, 2009, arguing that Hall had falsified the lease agreement by stating that Radeliff was not entitled to a utilities allowance and that Hall owed Radeliff for unpaid utilities allowances in the amount of $3,666. Rad-cliff failed to attach any evidentiary submissions to his response. In response to Radcliffs arguments, however, Hall submitted a second affidavit from McCrear, in which she stated that Radcliffs rent had been calculated after deducting the utilities allowance.

On September 10, 2009, Hall filed a motion for a writ of possession in which it asserted that Radeliff had failed to pay money into court pending the appeal of the case, as required by § 35-9A-461(d)(l), Ala.Code 1975. The circuit court entered an order on September 15, 2009, granting Hall’s motion for a summary judgment on its claim of unlawful detainer, granting Hall’s motion for a writ of possession, waiving the automatic stay of the judgment pursuant to Rule 62(a), Ala. R. Civ. P., and certifying that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

Radcliff filed a notice of appeal from the circuit court’s judgment to the Alabama Supreme Court on September 16, 2009; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
‘“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “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.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Tiller v. YW Hous. Partners, Ltd., 5 So.3d 623, 628 (Ala.Civ.App.2008).

Discussion

On appeal, Radcliff argues that the circuit court was without jurisdiction to enter a summary judgment in favor of Hall because, he says, undecided claims remained before the district court and, thus, the district court’s judgment was not final and would not support an appeal to the circuit court. See Rule 54(b), Ala. R. Civ. P.

Hall argues, however, that § 35-9A-461, Ala.Code 1975, provides;an expedited procedure that authorizes the appeal of an “eviction judgment” despite the fact that other claims have not yet been adjudicated.

Section 35-9A-461 provides, in pertinent part:

“(a) A landlord’s action for eviction, rent, monetary damages, or other relief relating to a tenancy subject to this chapter shall be governed by the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure except as modified by this chapter.
“(d) Notwithstanding subsection (a) of Section 12-12-70, [Ala.Code 1975,] any party may appeal from an eviction judgment entered by a district court to the circuit court at any time within seven days after the entry thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure. Upon filing of an appeal by either party, the clerk of the court shall schedule the action for trial as a preferred case, and it shall be set for trial within 60 days from the date of the filing of the appeal. In eviction actions, an appeal by a tenant to circuit court or to an appellate court does not prevent the issuance of a writ of restitution or possession unless the tenant pays to the clerk of the circuit court all rents properly payable under the terms of the lease since the date of the filing of the action, and continues to pay all rent that becomes due and properly payable under the terms of the lease as they become due, during the pendency of the appeal. In the event of dispute, the amounts properly payable shall be ascertained by the court.
“(e) If an eviction judgment enters in favor of a landlord, a writ of possession shall issue upon application by the landlord. Notwithstanding Rule 62 of the Alabama Rules of Civil Procedure, the automatic stay on the issuance of the writ of possession or restitution shall be for a period of seven days. If a tenant without just cause re-enters the premises, the tenant can be held in contempt and successive writs may issue as are necessary to effectuate the eviction judgment.”

Hall argues that § 35-9A-461(d) modifies the general rule that an appeal from an unlawful-detainer judgment lies only from a final judgment on all claims by stating that an appeal lies “from an eviction judgment” rather than from a “final judgment.” We agree.

“ ‘ “ ‘There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ ” ’ Ex parte Children’s Hosp. of Alabama, 721 So.2d 184, 191 (Ala.1998) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997), quoting in turn 82 C.J.S. Statutes § 316 (1953)). Moreover, ‘[c]ourts will attempt to give meaning to a legislative enactment and it is presumed that the Legislature did not do a vain and useless thing,’ Alidor v. Mobile County Comm’n, 291 Ala. 552, 558, 284 So.2d 257, 261 (1973), and ‘the Legislature, in enacting new legislation, is presumed to know the existing law.’ Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998).”

City of Montgomery v. Town of Pike Road, 35 So.3d 575, 584 (Ala.Civ.App.2009).

The use of the phrase “eviction judgment” in § 35-9A-461(d), rather than the phrase “final judgment,” alongside the language indicating that that Code section supersedes § 12-12-70, Ala.Code 1975, which refers to a “final judgment,” indicates the legislature’s intent to distinguish those two types of judgments. Allowing a litigant to proceed with an appeal from an eviction judgment while other claims, such as the “money claim” and counterclaim in the present case, remain pending, thereby precluding a final judgment from being entered, sounds in logic and good public policy. Such an interpretation of § 35-9A-461(d) would allow litigants who have been evicted from their homes an expedited avenue of appeal from those judgments, whereas an appeal taken from a final judgment on all claims may be so delayed as to make the effort moot. We conclude that the legislature intended to allow appeals from an eviction judgment to proceed in circuit court despite there being pending claims before the district court by virtue of the language used in § 35-9A-461(d).

In the present case, therefore, the circuit court was within its jurisdiction to entertain Radcliffs appeal from the district court’s judgment and to then enter a summary judgment in favor of Hall. Because this was the only issue raised by Radcliff in his appellate brief, we affirm the circuit court’s judgment.

AFFIRMED.

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

      . We note that Radcliff raised a number of arguments in his reply brief on appeal speaking to the merits of Hall’s claim and the circuit court’s purported error in entering a summary judgment in favor of Hall. However, because this court will not address issues raised for the first time in a party’s reply brief, we decline to address those arguments. Pate v. Billy Boyd Realty & Constr., Inc., 699 So.2d 186, 189 (Ala.Civ.App.1997).


author: THOMPSON, Presiding Judge.

text:
    Alan KEETON and Faye Keeton v. KELLY COMPANY, LLC.
    2090023.
    Court of Civil Appeals of Alabama.
    April 2, 2010.

      David F. Holmes of Holmes & Eubanks, Slocumb, for appellants.
    H. Samuel Prim III of Prim & Mend-heim, LLC, Dothan, for appellee.
   THOMPSON, Presiding Judge.

Alan Keeton and Faye Keeton appeal from a summary judgment entered by the Geneva Circuit Court in favor of Kelly Company, LLC (“Kelly”). For the reasons stated herein, we affirm the trial court’s judgment.

On September 18, 2008, Kelly filed an action against the Keetons seeking a declaratory judgment. Kelly alleged that it owned real property in the City of Geneva (“the City”) that abutted an undeveloped right-of-way known as Briarcliff Avenue (“the right-of-way”). It asserted that one of its predecessors in interest, the Kelly-Morris Development Company, had owned both the parcel that Kelly now owned and the property comprising the right-of-way. Kelly asserted that the Kelly-Morris Development Company had deeded the property comprising the right-of-way to the City in 1976 for use as a right-of-way but that the City had formally vacated that property in 2008. Kelly alleged that, at the time the City vacated the right-of-way, Kelly, as well as the Keetons, owned property abutting the undeveloped right-of-way. Kelly acknowledged that the general rule applicable to the vacation of a right-of-way is that the abutting landowners take the vacated property adjacent to their property to the centerline. However, Kelly sought a declaration that, because Kelly’s predecessor had owned the entire parcel comprising the right-of-way, Kelly was the rightful owner of the entire right-of-way.

The Keetons filed an answer in which, among other things, they denied the material allegations of the complaint and asserted that, pursuant to § 23-4-2(b), Ala. Code 1975, they were entitled to a portion of the vacated right-of-way. In pertinent part, § 23^-2(b) provides that, upon the vacation of a right-of-way, “[t]itle and all public rights, including the right to close the street, alley, or highway vacated, shall vest in the abutting landowners.” The Keetons also asserted that Kelly’s action was based on common law that had been legislatively overruled by § 23-4-2 and that, as a result, Kelly’s action was without substantial justification and was groundless in law. Thus, they asserted a counterclaim for an attorney fee pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975.

On December 29, 2008, the Keetons filed a motion for a summary judgment. They asserted that, because their property abutted the vacated right-of-way, the City’s vacation of the right-of-way had caused that property to vest in them from the centerline of the right-of-way to their property line.

On February 2, 2009, Kelly filed a response to the Keetons’ motion as well as its own motion for a summary judgment. It argued that its predecessor in interest had supplied the property to the City for the right-of-way and that, as a result, upon the City’s vacation of that property, Kelly was entitled to fee-simple title to the entire property comprising the right-of-way. Kelly argued that the general rule that title to vacated property vests in abutting landowners was based on the abutting landowners’ having contributed equal amounts of land at the time the right-of-way was originally dedicated. Kelly argued that an exception to the general rule applied when all the property for the right-of-way was taken from only one of the owners of abutting property. In such a case, it argued, the owner of the abutting property who had contributed all the property for the right-of-way was entitled to retake fee-simple ownership of the entire right-of-way upon its vacation. In support of its motion, Kelly relied on State v. Mobile River Terminal Co., 898 So.2d 768 (Ala.Civ.App.2004). Kelly attached to its motion several deeds purporting to demonstrate that it was, in fact, the successor in interest to the entity that had originally provided all the property to the City for the right-of-way.

On April 23, 2009, the trial court granted Kelly’s motion and entered a summary judgment in its favor. Relying on State v. Mobile River Terminal Co., supra, it held that Kelly was the rightful owner of the right-of-way. Because the trial court’s judgment was silent as to the Keetons’ counterclaim for an attorney fee pursuant to the Alabama Litigation Accountability Act, we conclude that the trial court implicitly denied the Keetons’ counterclaim. See Casey v. McConnell, 975 So.2d 384, 389 (Ala.Civ.App.2007) (indicating that a judgment’s silence on a counterclaim under the Alabama Litigation Accountability Act is interpreted, under Alabama precedents, “as an implicit denial of that counterclaim”). The Keetons filed a “motion for rehearing” on May 13, 2009, which we construe as motion to alter, amend, or vacate the summary judgment. That motion was denied by operation of law on August 11, 2009. See Rule 59.1, Ala. R. Civ. P. The Keetons filed a timely appeal to this court, which transferred the appeal to the supreme court for lack of subject-matter jurisdiction. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The Keetons contend that Kelly provided no evidence indicating that the City properly followed the statutory procedures, set forth in § 23-4-3(b), Ala.Code 1975, to vacate the right-of-way and that, as a result, the trial court erred in entering a summary judgment in Kelly’s favor. The Keetons did not make this argument to the trial court in opposition to Kelly’s summary-judgment motion. In fact, their own summary-judgment motion, in which they sought a judgment declaring that they were the proper owners of a portion of the right-of-way because of the City’s vacation of the righ1>of-way, presupposed that the City had properly vacated the right-of-way. A party cannot raise an issue for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). As a result, we will not consider the merits of this contention.

The Keetons also contend that, based on § 23-4-2(b), they were entitled to ownership of a share of the vacated right-of-way equal to Kelly’s share of the vacated right-of-way. The Keetons point out that this statute was amended, effective July 1, 2004, to provide, among other things, that, upon vacation of a right-of-way, “[tjitle and all public rights, including the right to close the street, alley, or highway vacated, shall vest in the abutting landowners.” They acknowledge that, under common law predating the 2004 amendment of § 23-4-2, all the land constituting a dedicated right-of-way should be restored, upon vacation, to a landowner whose predecessors in title had owned all the property comprising the right-of-way before its dedication. However, they argue, the 2004 amendment to § 23-4-2 constituted a legislative overruling of that principle in favor of a rule requiring an equal vesting in all abutting landowners of the property comprising a right-of-way upon the vacation of the right-of-way.

In State v. Mobile River Terminal Co., supra, this court quoted Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363 (1927), for the following proposition:

“ ‘So it appears that the common-law rule to the effect that adjoining owners had title to the middle of the highway rested upon the presumption that they had contributed equally to the road, but if the facts showed the contrary the rule did not apply. In other words, the facts would govern rather than the mere presumption. Out of this grew the rule that if the highway is taken wholly from one man’s property and such highway is vacated, the land in fee reverts to the original owner, or his grantees, freed from the public use or easement.’ ”

898 So.2d at 776 (quoting 317 Mo. at 1244, 298 S.W. at 366). The Keetons do not contend that, if the 2004 amendment to § 23-4-2(b) did not overrule the above-stated common-law principle, that principle would not, for other reasons, control the outcome of this case. For example, they do not contend that the evidence does not support Kelly’s assertion that, at the time of its creation, the right-of-way was carved out of property that was owned entirely by one of Kelly’s predecessors in interest. Instead, the thrust of their argument is that the above-quoted common-law principle was overruled by the 2004 amendment to § 23 — 4—2(b).

Our supreme court has written that “ ‘ “[sjtatutes in derogation or modification of the common law are strictly construed. ... Such statutes are presumed not to alter the common law in any way not expressly declared.” ’ ” Ex parte Key, 890 So.2d 1056, 1060 (Ala.2003) (quoting West Dauphin Ltd. P’ship v. Cation Offshore Prod., Inc., 725 So.2d 944, 952 (Ala.1998), quoting in turn Arnold v. State, 353 So.2d 524, 526 (Ala.1977)). As previously stated, the sentence added by the 2004 amendment to § 23-4-2(b) upon which the Keetons rely reads: “Title and all public rights, including the right to close the street, alley, or highway vacated, shall vest in the abutting landowners.” Although the Keetons contend that this language means that all the owners of land abutting a vacated right-of-way are entitled to a share of the right-of-way, running to the centerline thereof, we cannot construe the statute as requiring such a result, regardless of whether one or all of the abutting landowners originally contributed the property comprising the right-of-way. The statute does not expressly state that every abutting landowner is entitled to a share of a vacated right-of-way, it does not provide that the centerline of the right-of-way constitutes the appropriate dividing line between abutting landowners on opposite sides of the right-of-way, and, most importantly, it does not indicate the proportion of the right-of-way to which each abutting landowner is entitled. As a result, in applying the statutory amendment on which the Keetons rely, courts are still required to look to common-law principles in dividing a vacated right-of-way between abutting landowners. Because we fail to uncover any “express declaration” in the 2004 amendment altering the common law, we presume that the legislature did not intend to alter the common-law rules in place before the effective date of the 2004 amendment. Therefore, the Keetons’ contention that the rule of law stated in State v. Mobile River Terminal Co., supra, has been legislatively overruled is without merit.

Based on the foregoing, we conclude that the Keetons waived their first contention on appeal by failing to raise it in the trial court, and we find no merit in their second contention. As a result, we affirm the trial court’s summary judgment in favor of Kelly.

AFFIRMED.

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

      . On September 3, 2009, the trial court purported to enter an order denying the Keetons' motion to alter, amend, or vacate the judgment, and, on September 23, 2009, the trial court entered a "certificate of final judgment” in which it purported to, among other things, certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Each of those orders was a nullity, however; the former because the time to rule on the motion had already expired, see Starr v. Wilson, 11 So.3d 846, 850 (Ala.Civ.App.2008), and the latter because the April 23, 2009, summary judgment was a final judgment and, after the time for ruling on the Keetons' postjudgment motion had expired, the trial court no longer had jurisdiction over the cause, see Colburn v. Colburn, 14 So.3d 176, 178 (Ala.Civ.App.2009).


author: BRYAN, Judge.

text:
    Deborah BRADY v. ROEBUCK HONDA.
    2090082.
    Court of Civil Appeals of Alabama.
    April 2, 2010.

      Eugenia W. Hamilton of Hamilton & Associates, LLP, Vestavia Hills, for appellant.
    P. Thomas Dazzio, Jr., and Gwendolyn K. Arendall of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellee.
   BRYAN, Judge.

Deborah Brady appeals from an arbitration award in favor of Roebuck Honda. We transfer the appeal to the Jefferson Circuit Court.

In July 2004, Brady sued Roebuck Honda and Honda Corporation in the circuit court, alleging negligence, wantonness, and claims under the Alabama Extended Manufacturer’s Liability Doctrine. In her complaint, Brady alleged that she had been injured in an accident when the brakes of her Honda Accord automobile had failed while she was driving it. In November 2004, Roebuck Honda filed a motion to compel arbitration, and the circuit court granted that motion in February 2005. Also in February 2005, Honda Corporation was dismissed from the action pursuant to a settlement agreement.

On August 28, 2009, the arbitrator rendered an award in favor of Roebuck Honda. Although it is unclear, the record on appeal suggests that Brady received notice of the arbitration award on September 9, 2009. Thirty days later, on October 9, 2009, Brady, acting pro se, filed in the circuit court a notice of appeal to this court from the arbitration award. Brady also filed a copy of the arbitration award with her notice of appeal. There is no indication in the record that the circuit clerk entered the arbitration award as the final judgment of the circuit court. The appeal proceeded in this court. Because this court determined that it lacked jurisdiction under § 12-3-10, Ala.Code 1975, which defines the appellate jurisdiction of this court, it transferred the appeal to the supreme court. The supreme court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Initially, we address whether Brady followed the proper procedure by filing her notice of appeal to this court. Rule 71B, Ala. R. Civ. P., which became effective February 1, 2009, establishes the procedure for appealing the arbitration award in this case. Rule 71B “supersedes the procedure set out in § 6 — 6—15[, Ala.Code 1975].” Parham v. American Bankers Ins. Co. of Florida, 24 So.3d 1102, 1104 n. 2 (Ala.2009); see also Committee Comments to Rule 71B Effective February 1, 2009 (“[Rule 71B] clarifies the method for taking an appeal from an arbitration award and supersedes the procedure provided by Ala.Code 1975, § 6-6-15.”).

Section § 6-6-15 provides, in pertinent part:

“Either party may appeal from an award under this division. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending....”

(Emphasis added.) In Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008), our supreme court clarified and modified the procedure for appealing an arbitration award under § 6-6-15, Ala.Code 1975. However, Horion Homes did not modify the requirement under § 6-6-15 that a party seeking to challenge an arbitration award initiate that challenge by filing, in the circuit court, a notice of appeal to the “appropriate appellate court.” Pursuant to the procedure set out in Horton Homes, the clerk of the circuit court then entered the arbitration award as the “conditional” judgment of the circuit court. 999 So.2d at 467. The party challenging the award was then required to “file in the appropriate circuit court a [Rule 59(e), Ala. R. Civ. P.,] motion to alter, amend, vacate, or set aside the award within 30 days of filing the notice of appeal of the arbitration award and the clerk’s entry of the conditional judgment based thereon.” Id. at 468. If the circuit court denied that Rule 59(e) motion or it was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., the conditional judgment became final, and the appeal was “processed based on the prior notice of appeal” that had been filed to the appropriate appellate court. Id.

As noted, this case is governed by the procedure established by Rule 71B, which supersedes the procedure established by § 6-6-15, which Horton Homes clarified and modified. Rule 71B provides:

“(a) Who may appeal. Any party to an arbitration may file a notice of appeal from the award entered as a result of the arbitration.
“(b) When filed. The notice of appeal shall be filed within thirty (30) days after service of notice of the arbitration award. Failure to file within thirty (30) days shall constitute a waiver of the right to review.
“(c) Where filed. The notice of appeal shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
“(d) What filed. With the notice of appeal, the appellant shall file a copy of the award, signed by the arbitrator, if there is only one, or by a majority of the arbitrators, along with the submission to the arbitrator or arbitrators and any supporting documents or record of the proceedings, if available. If no record is available, the appellant shall so state. If a record is to be prepared but is not completed within the time provided in paragraph (b) of this rule, the appellant shall so state in the notice of appeal and shall file the record within thirty (30) days after the filing of the notice of appeal, unless the court for good cause shown shall allow additional time.
“(e) How served. If the arbitration arose out of a pending action, service shall be made as provided in Rule 5[, Ala. R. Civ. P.]. If there is no action pending, service shall be made as provided in Rules 4 through 4.4[, Ala. R. Civ. P.,] and upon any counsel who appeared in the arbitration for the party being served.
“(f) Procedure after filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, [Ala. R. Civ. P., ] a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala. Code 1975, § 6-6-14, or other applicable law. The court shall not grant any such motion until a reasonable time after all parties are served pursuant to paragraph (e) of this rule. The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions.
“(g) Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, [Ala. R. Civ. P.].”

Rule 71B(c) provides that “[t]he notice of appeal shall be filed with the clerk of the circuit court,” but the text of that rule does not explicitly state to which court the appeal is filed. However, the Committee Comments to Rule 71B Effective February 1, 2009, provide, in pertinent part:

“In his concurring opinion in Birmingham News Co. v. Horn, 901 So.2d 27, 74 (Ala.2004), Justice Lyons invited the Standing Advisory Committee on the Rules of Appellate Procedure ‘(a) to establish an easily understood triggering date for the time for taking an appeal from an arbitrator’s award and, should the proposed revision conflict with [Ala. Code 1975,] § 6-6-15, to recommend the abrogation of § 6-6-15, and (b) to recognize the availability of an independent action in the circuit court from which an appeal would lie as in other cases.’ The Court provided further guidance in Horton Homes .... The Standing Advisory Committees on the Rules of Appellate Procedure and the Rules of Civil Procedure collaborated in response to those cases. The resulting rule clarifies the method for taking an appeal from an arbitration award and supersedes the procedure provided by Ala.Code 1975, § 6-6-15. Pursuant to this rule, the aggrieved party has no right to appellate review of an arbitration award unless that party has appealed to the circuit court from the arbitration award within 30 days of service of the notice of the award and has timely filed a Rule 59 motion to set aside or vacate the judgment on the arbitration award as described above.”

(Initial emphasis added.)

Based on the foregoing, we conclude that Rule 71B requires a party seeking to challenge an arbitration award to file an initial notice of appeal to the appropriate circuit court. The aggrieved party must file such an appeal and file a Rule 59 motion to set aside or vacate the judgment entered by the circuit clerk on the arbitration award to preserve a subsequent appeal to this court or the supreme court. Rule 71B(g) indicates that, to attain appellate review by this court or the supreme court, an aggrieved party must file a second notice of appeal in addition to the initial notice of appeal filed to the circuit court. Rule 71B(g) states: “Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, [Ala. R.App. P.].” Therefore, unlike the prior procedure governing an appeal from an arbitration award, Rule 71B establishes a procedure in which a party challenging an award must file two notices of appeal to attain review by this court or the supreme court. The first notice of appeal is filed to the appropriate circuit court, and, if the aggrieved party’s required Rule 59 motion is subsequently denied, the second notice of appeal, from the denial of the Rule 59 motion, is filed to the appropriate appellate court.

We recognize that in Hurst v. Eagles Landing IV, Ltd., 20 So.3d 143, 149 (Ala.Civ.App.2009), this court, in dicta, stated:

“Except that Rule 71B requires a notice of appeal from an arbitration decision to be filed within 30 days after the service of notice of the arbitration award, rather than 42 days after receipt of the notice of the award, the procedure set forth in Rule 71B is virtually identical to the procedure set forth in [.Horton Homes ].”

However, our decision today concludes that there are additional differences between the procedure established by Rule 71B and the procedure found in Horton Homes. Thus, we overrule any contrary dicta in Hurst to the extent that it may be read as conflicting with this opinion.

In this case, Brady filed her notice of appeal from the arbitration award to this court. However, based on our decision today, we conclude that Brady should have filed her notice of appeal to the circuit court, pursuant to Rule 71B. Therefore, this court lacks appellate jurisdiction to hear Brady’s appeal. Accordingly, we transfer the appeal to the circuit court for disposition of the appeal under Rule 71B. See, e.g., Food World v. Carey, 980 So.2d 404 (Ala.Civ.App.2007) (transferring to a circuit court an appeal from a district court’s denial of a Rule 60(b), Ala. R. Civ. P., motion when the appeal should have been brought in the circuit court).

APPEAL TRANSFERRED.

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

      1. In Horton Hornes, Inc. v. Shaner, 999 So.2d 462, 466 (Ala.2008) our supreme court concluded that "Rule 4[, Ala. R. Civ. P.,] ... operate[d] to expand the statutory time period for taking an appeal of an arbitrator's award from 10 days from the date of receipt of notice of the award to 42 days from that date.”

      . If the circuit court grants the Rule 59 motion filed by the party challenging the arbitration award, the nonmovant could then file a notice of appeal from the grant of that motion to the appropriate appellate court. Rule 71B(g).

      . Brady’s filing her notice of appeal to the wrong court is understandable considering the lack of clarity in the text of Rule 7IB concerning the proper court to which an aggrieved party should file its appeal from an arbitration award; the longstanding pre-Rule 71B procedure calling for an appeal from an arbitration award to be made "to the appropriate appellate court,” i.e., this court or the supreme court, see § 6-6-15 and Horton
        Homes; and this court's decision in Hurst implying that an appeal challenging the arbitration award under Rule 71B should be filed initially to the appropriate appellate court, instead of to the appropriate circuit court.