text:
    Mitzi LAWSON v. HARRIS CULINARY ENTERPRISES, LLC, et al.
    1091751.
    Supreme Court of Alabama.
    Oct. 21, 2011.

      John B. Baugh, Florence, for appellant.
    A. Stewart O’Bannon III of O’Bannon & O’Bannon, L.L.C., Florence; and Troy A. Skipworth of Harris & Skipworth, P.C., Florence, for appellees.
   SHAW, Justice.

Mitzi Lawson, a defendant below, appeals from a $500,000 judgment in favor of Harris Culinary Enterprises, LLC (“HCE”), John C. Harris III (“Clinton”), and John C. Harris, Jr. (“John”), the plaintiffs below (hereinafter sometimes referred to collectively as “the Harrises”), on their fraud claims related to their purchase of a restaurant franchise. We reverse and render a judgment in favor of Mitzi.

Facts and Procedural History

At all times pertinent to the events giving rise to the underlying action, Mitzi was married to her codefendant, Sims Lawson. Following his marriage to Mitzi, Sims, an accountant, formed SYM, Inc. (“SYM”), also a codefendant in the underlying action, for the purpose of operating a “Fox’s Pizza Den” restaurant franchise in Killen (“the Killen franchise”). Sims is president of SYM. Sims purchased a building in which to operate the Killen franchise; that building was titled solely in Mitzi’s name.

At some time before the events giving rise to their present claims, John and Clinton formed HCE, an Alabama limited liability company, for the purpose of operating pizza-restaurant franchises. Although both John and Clinton are members of HCE, Clinton was designated as the “managing member.”

In March 2007, the Harrises entered into negotiations with Sims to purchase the Killen franchise. According to the Harrises, in an apparent attempt to secure a higher purchase price, Sims purportedly generated false financial reports evidencing higher gross sales and profits for the Killen franchise than were actually realized. Upon review of the purported falsified reports, the Harrises increased their initial offer and, in May 2007, ultimately purchased the Killen franchise. As a condition of the sales agreement, the Harrises entered into a one-year lease agreement to continue operation of the Killen franchise in its then current location.

In August 2007, the Harrises initiated the underlying action, alleging that, as a result of Sims’s presentation to them of falsified reports, they had been induced to purchase the Killen franchise and to enter into the lease agreement, suffering damage as a result. Their complaint, which charged SYM, Sims, and Mitzi under several theories of fraud, specifically indicated that Mitzi was being sued “as owner and lessor of the [building]” in which the Killen franchise was located. In response to the Harrises’ complaint, Mitzi moved both to dismiss any claims asserted against her in that pleading and, subsequently, for a summary judgment in her favor on the ground that the complaint did not allege— and that there was no evidence to support — a claim that Mitzi had made any representation, false or otherwise, to the Harrises. The trial court denied both motions.

The matter proceeded to a bench trial on July 13, 2010, at which neither Sims nor SYM (nor a representative for either) appeared to defend against the Harrises’ claims. During that proceeding, the trial court heard ore tenus evidence from Clinton and John, from Mitzi, and from David Holcombe, a former employee of SYM, who had worked at the Killen franchise.

Clinton testified that, as a result of his past experience in the “pizza business,” the Harrises began looking at pizza-restaurant franchise opportunities. After learning about and investigating opportunities available with Fox’s Pizza Den, the Harris-es ultimately purchased a Fox’s Pizza Den franchise and opened an initial location in Petersville (“the Petersville franchise”). Because of the profitability of that initial location, the Harrises began seeking another Fox’s Pizza Den franchise, which they ultimately purchased and opened in Muscle Shoals (“the Muscle Shoals franchise”).

At the time the Harrises were expanding their operations, according to Clinton, John encountered Sims at a funeral they were both attending, and the Harrises were apprised of the possibility of purchasing the Killen franchise from Sims. Clinton subsequently went to inspect the Killen franchise. According to Clinton, he received a tour of the building in which the Killen franchise was located and an explanation of its business practices. Clinton indicated that Mitzi was present during these activities but that “[s]he was quiet.” Clinton indicated that, at the conclusion of his tour, he requested the “sales numbers” associated with the Killen franchise. After receiving records evidencing the sales receipts for the Killen franchise through December 2006, which evidenced monthly average sales of $20,000, Clinton indicated to Sims that he was no longer interested in purchasing the Killen franchise because the sales figures “were too low....”

Clinton stated that once he relayed his disinterest based on the disappointing sales numbers, Sims contacted John and further negotiation ensued, which culminated in an initial offer by the Harrises to purchase the Killen franchise. SYM, however, rejected that initial offer, and additional negotiation occurred, which ultimately resulted in an agreement for the Harrises to purchase the Killen franchise.

Clinton testified that, during the course of the negotiations immediately preceding the purchase agreement reached by the parties, Sims represented to the Harrises that the sales numbers for the Killen franchise were increasing and that they were better than the initial sales numbers that had been provided to the Harrises. Specifically, according to Clinton, Sims

“[told them] that since bridge construction [on the adjacent Shoals Creek Bridge] had ended in December of 2006, ... [the Killen franchise’s] average sales had increased from the twenty thousand average we were shown going through December 2006 to — steadily to an average of thirty thousand in March of 2007.”

Clinton further stated that the Harrises were initially provided “a printout” evidencing the allegedly increasing sales numbers for January 2007, February 2007, and March 2007. Clinton testified that documentation was provided “by [Sims]” and was presented “[o]n behalf of the corporation.” Clinton was unable to identify any documentation that had been provided to the Harrises by Mitzi. He further acknowledged that, during the negotiation period, Mitzi never made a single statement to the Harrises nor answered any question that they might have asked.

Clinton indicated that, upon the Harris-es’ request for further supporting documentation, Sims also provided sales-tax records for January 2007, February 2007, and March 2007. According to Clinton, the information provided by Sims verified Sims’s claims that sales for the Killen franchise had steadily increased from December 2006 through March 2007. Clinton indicated that, based on that information, the Harrises entered into final negotiations for the purchase of the Killen franchise. Clinton noted that only Sims was involved in the negotiations associated with the sale of the Killen franchise and with regard to the lease of the building where the franchise was located. He further acknowledged that only Sims, in his capacity as president of SYM, signed the sales contract transferring the Killen franchise to the Harrises.

However, Clinton indicated that, with regard to the lease, Sims asserted that he was handling the negotiations on behalf of Mitzi, who, Sims indicated to the Harrises, was actually the sole owner of the building. As with the sales negotiations, Clinton confirmed that Mitzi apparently signed the lease agreement outside his presence, and he never had a single discussion with her regarding the lease terms Sims had negotiated. Nonetheless, Clinton stated that he was instructed to make the lease payments directly to Mitzi. Clinton further testified that, with regard to the lease transactions, no misrepresentations were made to the Harrises.

Following the sale, the Harrises took possession of the Killen franchise and Mitzi’s building on May 14, 2007. Clinton indicated that, following the transfer, the Killen franchise averaged $4,000 to $5,000 per week, which numbers, he said, “were not in keeping with [Sims’s] representations.” In fact, Clinton noted, the numbers were more in line with the initial sales numbers provided to the Harrises (those evidencing the sales numbers for the Kil-len franchise in late 2006), which Clinton had deemed to be too low to justify the purchase of the Killen franchise. Specifically, according to Clinton, $20,000 was too low a monthly sales figure for a pizza franchise to operate profitably.

Clinton stated that, in accordance with the purchase of the franchise, he had been provided “the card necessary to access ... the computers at the Killen [franchise].” Although the only access card provided the Harrises was issued in Mitzi’s name, Clinton testified that Sims actually gave him the computer-access card. Clinton then had an employee use the accounting software still loaded on one of the computers at the Killen franchise to produce a report of the sales numbers beginning in January 2007. According to Clinton, the report generated by that search confirmed “[t]hat the store sales average never went over [$20,000] a month.”

Clinton acknowledged that the Harrises had no evidence indicating that Mitzi “had anything to do with [the] documents Sims gave [the Harrises].” As to evidence indicating Mitzi’s involvement in the Killen franchise, Clinton pointed to the fact that Mitzi had been responsible for handling payroll at the Killen franchise and that, as evidenced by the computer-access card issued in her name, Mitzi had access to the computer system used at the Killen franchise. Once the Harrises became aware of the discrepancy in the reported earnings versus the actual earnings, as noted above, they filed the underlying action.

John’s testimony was substantially similar to Clinton’s testimony. John confirmed that he incorporated HCE for the purpose of operating a pizza franchise in Petersville and that, as a result of the success of that initial enterprise, the Har-rises began looking to expand that business. He further confirmed that he was approached by Sims, with whom he was previously acquainted, at a funeral, during which Sims indicated that he was looking to retire and to sell his pizza business. John testified that he relayed that information to Clinton, who then visited the Killen franchise.

John also confirmed that he personally guaranteed the start-up loans associated with each of the three Fox’s Pizza Den franchises the Harrises operated and that he expended moneys from his personal savings to cover monthly expenses for each franchise and was ultimately forced to take out a loan secured by the building that housed his law practice. Documentation admitted during John’s testimony indicated that he had personally incurred obligations and/or expended moneys in association with the operation of the franchises totaling $385,546. He further indicated that attempting to use moneys generated by the profitable Petersville franchise to keep the Muscle Shoals and Killen franchises afloat and, later, to pay the outstanding obligations associated with those two failing franchises during an economic downturn ultimately doomed the entire enterprise. As a result, John indicated that the Harrises also closed the Petersville franchise in December 2009. John offered no testimony regarding Mitzi’s role in either the Killen franchise or the negotiations leading to the Harrises’ purchase of that franchise.

In her trial testimony, Mitzi confirmed that she was working at the Killen franchise on the date of Clinton’s initial visit. Specifically, she recalled seeing Clinton standing at the counter. Mitzi also recalled, however, that her only contact with Clinton during his visit was “when [she] was up front using the phone to make sure they was [sic] getting a delivery correctly [sic] and [she] saw him, and Sims introduced [them].” Although she testified that Sims occasionally asked her for her input when making business-related decisions, Mitzi denied any “extensive” involvement in the operation of the Killen franchise. In fact, Mitzi specifically denied ever serving as the manager of the Killen franchise and could not recall ever having even signed a check related to its operation. According to Mitzi, the only bank deposits she was ever responsible for making were when she was assisting with pizza delivery.

Although Mitzi acknowledged that she might occasionally have accepted customer payments while standing at or near the counter, she said that she never totaled the day’s receipts for deposit and could not recall ever having been responsible for making any “final deposit at night.” She did, however, acknowledge that she was responsible for payroll during the three years SYM operated the Killen franchise, a job she says she performed from a computer at her residence. In fact, Mitzi stated that the only time she ever logged onto a computer at the Killen franchise would have been in relation to a scheduling issue. She further indicated that she was unable to recall ever logging into a password-protected program on a computer at the Killen franchise. According to Mitzi, the only time she ever used the computer-access card, which Sims later gave to Clinton, was when it was initially issued during tests to confirm that the card was working properly and to enter the delivery addresses of repeat customers. She specifically denied ever having seen any type of spreadsheet on the computer during that limited use or ever having “worked with numbers” in the computer at the Killen franchise. Mitzi also denied ever looking at or assisting with the assembly of monthly sales figures for the Killen franchise.

More specifically, Mitzi denied ever seeing the allegedly fraudulent sales records Sims provided to the Harrises. According to her testimony, the only information she received from Sims was an indication that “the business was doing well.” Mitzi also denied that Sims discussed with her any of his negotiations with the Harrises, including his statement to the Harrises that business had improved since the conclusion of nearby road-construction work. According to Mitzi, she and Sims “didn’t discuss the pizza place very much at all.”

Mitzi did admit, however, that Sims informed her during the course of the negotiations with the Harrises that the Harris-es were going to rent the building and that she “said that’s fine.” She further indicated that, although Sims never approached her to obtain her approval before arriving at a rental figure for the building, the rental amount he quoted the Harrises was acceptable to her.

Holcombe indicated that he worked as a shift leader at the Killen franchise for approximately five months in or around 2005 or 2006. According to Holcombe’s testimony, he was promoted to assistant manager, at which time Sims asked him to take responsibility for the final night deposits, which Holcombe said, included tallying all receipts to arrive at total intake (adding checks and cash and subtracting credit-card purchases), then subtracting the $200 operating cash for the next day and depositing the remainder. Holcombe indicated that, at the time he was assigned that duty, Sims specifically informed him “that those deposits had been done in the past in part by Mitzi.” However, he specifically noted that, once he assumed that responsibility, “[he] was the only one that did them.”

According to Holcombe, during the time he was responsible for the nightly deposits, the intake of the Killen franchise ranged from around $200 on a slow night to $2,000 on a busy night. Also according to Holcombe, the computer in the office of the Killen franchise “had all the actual information” associated with the business, including a spreadsheet showing the daily receipts for the Killen franchise as reflected by the nightly deposits. Holcombe described Mitzi’s role with regard to the Killen franchise as follows: “It was her job basically [to] keep up relations with [the bigger] customers.” He further noted that when large orders came in associated with church or school events Mitzi was responsible for making the delivery and returning the associated payment to the Kil-len franchise.

At the close of the Harrises’ evidence, Mitzi moved for a “directed verdict” on grounds that the Harrises’ claims against her alleged misrepresentations of material fact and that the Harrises had failed to present any evidence of a single misrepresentation or any failure to disclose on Mitzi’s part. The trial court denied Mitzi’s motion. Immediately thereafter, Mitzi both rested and renewed her motion for a judgment as a matter of law, again arguing that there was no evidence of any “wrongdoing [by Mitzi] as a lessor of the building.” The Harrises responded by acknowledging that although “the evidence ... doesn’t have [Mitzi] directly saying anything to either of the Harrises with regard to representations about business earnings and that sort of thing[, the evidence] proves that she’s all in and around th[e operation of the Killen franchise].”

Following the conclusion of the trial, the trial court entered on July 14, 2010, a judgment “in favor of the plaintiffs and against the defendants” in the amount of $500,000, which amount represented a compensatory-damages award of $380,000 and a punitive-damages award of $120,000. The trial court’s order, however, failed to include the factual findings on which those awards were based. Mitzi timely filed, pursuant to Rule 59(e), Ala. R. Civ. P., a postjudgment motion seeking to amend the trial court’s judgment on the grounds that the trial court misapplied the law to the facts established by the evidence at trial; that the Harrises presented insufficient evidence to defeat Mitzi’s motion for a judgment on partial findings; that the compensatory-damages award had been incorrectly calculated and was not supported by the evidence; and that punitive damages were not warranted and/or that the punitive-damages award was excessive. The trial court denied Mitzi’s motion by an order entered August 16, 2010. Mitzi appeals.

Standard of Review

As noted above, Mitzi appeals from the trial court’s denial of her motion filed at the close of all the evidence, properly termed a motion for a judgment on partial findings by the trial court. See supra note 7. “The standard of review applicable ... to rulings on motions for a judgment on partial findings by the trial court” is “[o]rdinarily ... the ore tenus standard.” Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905, 910 (Ala.2004) (citing Loggins v. Robinson, 738 So.2d 1268, 1270 (Ala.Civ.App.1999), and Grant v. Bullock County Bd. of Educ., 895 F.Supp. 1506, 1508-09 (M.D.Ala.1995) (review under Rule 52, Fed.R.Civ.P.)). Under the ore tenus standard of review, findings on disputed facts are presumed correct, and the trial court’s judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust. Southside Cmty. Dev. Corp. v. White, 10 So.3d 990, 991 (Ala.2008). “““The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” ’ ” 10 So.3d at 991-92 (quoting Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007), quoting in turn Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005), quoting in turn Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). See also First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510, 512-13 (Ala.1982) (“The presumption of correctness [attendant to ore tenus findings] is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment. In such instances where the proof at trial fails to support the material allegations on which the suit is based, the judgment rendered cannot be upheld on appeal.”). Additionally, we note that “the ore tenus standard is inapplicable “where the evidence is undisputed, or where the material facts are established by the undisputed evidence.’ Salter v. Hamiter, 887 So.2d 230, 234 (Ala.2004).” Burkes Mechanical, 908 So.2d at 910. In such cases, appellate review is de novo. Id. See also Ragsdale v. Ragsdale, 991 So.2d 770, 772 (Ala.Civ.App.2008).

Discussion

On appeal, Mitzi initially argues that the Harrises presented insufficient evidence to support a conclusion that she made any misrepresentation to the Harrises or that she suppressed any fact that she was duty-bound to disclose. (Issues I and II, respectively, in Mitzi’s brief to this Court). More specifically, she contends that the ore tenus evidence demonstrated neither any act nor any failure to act on her part amounting to actionable fraud and that the trial court’s apparent conclusion to the contrary was erroneous. Mitzi argues that any fraudulent acts in this case were committed by Sims alone.

The Harrises counter Mitzi’s contention that she personally made no misrepresentation by citing the following evidence:

“Mitzi owned the building in Killen where the [Killen franchise] was located. She leased the building to the Harrises under an agreement negotiated in her behalf by her husband, Sims Lawson. She received lease payments and acted as a community relations liaison for the store. She had input into how the business was run and did the store payroll for three years. She prepared reports and night deposits which required the use of the store computer containing all the store’s financial information. She had the card which gave her access to the computer with her name on it and no one else’s. She even admitted (although grudgingly) that she used the card to log into the computer. Mitzi was also present when Sims Lawson showed Clinton Harris around the store during negotiations for its sale.”

The Harrises’ brief, at pp. 15-16 (citations to record omitted).

“To establish a cause of action for fraudulent misrepresentation, the plaintiff must show 1) that the defendant made a misrepresentation; 2) that that misrepresentation concerned a material existing fact; 8) that the plaintiff relied on the misrepresentation; and 4) that the reliance was to the plaintiffs detriment. Ala.Code 1975, § 6-5-101; Crowder v. Memory Hill Gardens, Inc., 516 So.2d 602 (Ala.1987). Under [Ala.Code 1975,] § 6-5-101, ‘legal fraud’ includes misrepresentations of material fact made ‘by mistake or innocently,’ as well as misrepresentations made ‘willfully to deceive, or recklessly without knowledge.’ Young v. Serra Volkswagen, Inc., 579 So.2d 1337 (Ala.1991).
“In order to establish a cause of action for fraudulent suppression, the plaintiff must show 1) that the defendant had a duty to disclose material facts, 2) that the defendant concealed or failed to disclose those facts, 3) that the concealment or failure to disclose induced the plaintiff to act; and 4) that the defendant’s action resulted in harm to the plaintiff. Interstate Truck Leasing, Inc. v. Bender, 608 So.2d 716 (Ala.1992). A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of a duty to disclose is not fraudulent. Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So.2d 1288 (Ala.1993); Hardy v. Blue Cross & Blue Shield of Alabama, 585 So.2d 29 (Ala.1991); King v. National Foundation Life Ins. Co., 541 So.2d 502 (Ala.1989); See, McGowan v. Chrysler Corp., 631 So.2d 842 (Ala.1993); Ala.Code 1975, § 6-5-102.”

Jewell v. Seaboard Indus., Inc., 667 So.2d 653, 657-58 (Ala.1995). See also Crowder v. Memory Hill Gardens, Inc., 516 So.2d 602, 604-05 (Ala.1987).

Therefore, to succeed on their fraudulent-misrepresentation claim against Mitzi, the Harrises were required to show a misrepresentation of a material fact by Mitzi. However, as the Harrises acknowledged in response to Mitzi’s renewed motion for a judgment as a matter of law at the close of all the evidence, and as Mitzi argues in her brief to this Court, no representation was made by Mitzi to the Harrises that would support a fraudulent-misrepresentation claim under § 6-5-101, Ala.Code 1975. See Parker v. Thyssen Mining Constr., Inc., 428 So.2d 615, 618 (Ala.1983) (“To constitute fraud, there must be some misrepresentation of material fact to a party who relies upon such misrepresentation to his detriment. Ball v. Vogtner, 362 So.2d 894 (Ala.1978); Ala.Code 1975, §§ 6-5-100 to 6-5-104.” (emphasis added)), and Mann v. Adams Realty Co., 556 F.2d 288, 296 (5th Cir.1977) (applying Alabama law and noting that “[tjhe misrepresentation may be willful or it might be ‘made by mistake and innocently,’ but it must be ‘made’ in any event.” (footnote omitted)).

Based on their inability to make the requisite demonstration under the facts of their case, and as explained in their brief to this Court, the Harrises’ fraud claims against Mitzi were based primarily on their contention that Mitzi’s mere proximity to and occasional presence in the Killen franchise, by virtue of her marriage to Sims, was sufficient “to show that Mitzi participated in and/or suppressed the fraudulent representations made by her husband, Sims.” The Harris-es’ brief, at p. 10. We disagree.

Specifically, even assuming, as Holcom-be testified, that Mitzi had, at some time before 2005 or 2006, occasionally been responsible for night deposits and for payroll, we see nothing associated with either of those responsibilities that would have placed her in a position to be aware of the total sales numbers for the Killen franchise in the first quarter of 2007 (especially given the variance in the nightly deposit amounts as testified to by Holcombe). Initially, we note that it was also undisputed that any payroll responsibilities Mitzi performed were performed using her home computer and not the computer on the premises at the Killen franchise. Moreover, even if, as Holcombe also testified, information regarding the daily sales receipts for the Killen franchise was available on the computer at the Killen franchise, Mitzi’s undisputed testimony indicated that she never looked at or helped assemble those numbers. Additionally, by all accounts, and as evidenced by Clinton’s later retrieval, the figures available on the office computer at the Killen franchise were, in fact, the actual sales numbers for the business. The Harrises fail to explain how, in the absence of any evidence presented by them indicating that Mitzi could be linked to or was even aware of the allegedly falsified numbers generated by Sims or that she was present when the report containing those numbers was provided to the Harrises, access to the actual numbers would have made Mitzi a party to Sims’s fraudulent actions. Moreover, Mitzi indicated that she possessed no personal information indicating that any of the information Sims provided to the Harrises was anything other than accurate and complete when it was provided. Finally, we note that Mitzi testified as to her limited input into and participation in the business, a fact that, we find, was supported by Holcombe’s testimony, as set out above, and that was not disproved by the Harris-es.

Assuming, without deciding, that the Harrises’ fraudulent-suppression claim was tried by the implied consent of the parties, see Rule 15(b), Ala. R. Civ. P., and that their complaint was constructively amended to conform to the evidence, we also conclude that there was insufficient evidence to support a judgment in their favor on a fraudulent-suppression claim against Mitzi. Specifically, in the absence of any evidence demonstrating Mitzi’s knowledge as to the creation of and participation in providing the alleged fraudulent financial report, we conclude, and the Har-rises concede, that not only did Mitzi not make any misrepresentation to the Harris-es, but the evidence adduced at trial failed to demonstrate that she was even aware of any material fact to conceal. See Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So.2d 1288, 1292 (Ala.1993) (“One can be liable for suppression only of a fact of which one has knowledge.” (citing Cornelius v. Austin, 542 So.2d 1220, 1224 (Ala.1989)); and McGarry v. Flournoy, 624 So.2d 1359, 1362 (Ala.1993) (“An action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.”). See also Boackle v. Bedwell Constr. Co., 770 So.2d 1076, 1080 (Ala.2000); Cherokee Farms, Inc. v. Fireman’s Fund Ins. Co., 526 So.2d 871, 875 (Ala.1988); Harrell v. Dodson, 398 So.2d 272, 276 (Ala.1981); McIver v. Bondy’s Ford, Inc., 963 So.2d 136, 143 (Ala.Civ.App.2007); and LaCoste v. SCI Alabama Funeral Servs., Inc., 689 So.2d 76, 80 (Ala.Civ.App.1996). We will not presume an element of the Harrises’ claim that their evidence admittedly fails to demonstrate. Therefore, as to Mitzi, the Harrises’ fraud claims must fail.

Moreover, to the extent that the Harrises argue that an agency relationship existed between Sims and Mitzi with regard to the lease of Mitzi’s building and that, therefore, Mitzi is liable for Sims’s alleged misrepresentations, even assuming, as they contend, that an actual agency relationship arose with regard to that separate transaction, that argument is also unpersuasive in light of Clinton’s testimony that Sims made no misrepresentation with regard to the lease. Instead, the only misrepresentations identified by the Har-rises were allegedly made by Sims with regard to the business of the Killen franchise. Because Mitzi was neither an officer nor a shareholder in SYM, which solely owned the Killen franchise, Mitzi possessed no interest with regard to that transaction for which Sims might have served as her representative.

In sum, there was no evidence before the trial court from which it could have reasonably determined either that Mitzi made any misrepresentation to the Harris-es or that Mitzi had knowledge of and failed to disclose the fraudulent misrepresentations Sims made to the Harrises. Simply stated, after careful review of the record, we hold that the evidence presented in this case by the Harrises will not support a valid claim of fraudulent misrepresentation or fraudulent suppression against Mitzi. See Coker, supra. Although the Harrises contend that the trial court simply may have found Mitzi not to be credible, even assuming that the trial court considered all of Mitzi’s testimony to be lacking in credibility, the Harrises’ evidence was still insufficient to demonstrate any fraudulent act by Mitzi or to sustain the trial court’s judgment against her. See White, supra. Therefore, we reverse the trial court’s judgment against Mitzi and render a judgment in her favor as to the Harrises’ fraud claims. The judgment against SYM and Sims was not appealed, is not properly before us, and, therefore, remains unaffected by our decision.

Because of our reversal of the trial court’s judgment against Mitzi, we preter-mit discussion of the remaining issues raised on appeal by Mitzi with regard to the propriety of the trial court’s accompanying damages award. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this Court would pretermit discussion of further issues in light of the dispositive nature of another issue).

REVERSED AND JUDGMENT RENDERED.

WOODALL, STUART, BOLIN, PARKER, MURDOCK, MAIN, and WISE, JJ., concur.

MALONE, C.J., concurs in the result.

      . At the time of the trial, Mitzi was divorced from Sims. Specifically, her testimony indicated that their marriage was terminated in February 2009. Additionally, it appears that Sims was unavailable for trial because, at that time, he was incarcerated on an unrelated federal tax-evasion conviction.

      . Specifically, at the time of the admission into evidence of the report showing the purported actual sales numbers for the Killen franchise, counsel for the Harrises stipulated on the record that the alleged fraudulent information "came from Sims.”

      . In fact, as Clinton acknowledged during his trial testimony, his previous sworn responses to discovery, in which he was asked to identify all persons with whom he spoke regarding the value of the Killen franchise, purposefully omitted Mitzi's name because he did not speak with her.

      . The record reflects that there were three computers at the Killen franchise: two that were used “up front" and were associated with placing customer orders and a separate computer "in the back” that was used to obtain financial information associated with running the business.

      . It appears from the record that SYM actually paid sales tax on the allegedly inflated sales numbers Sims had furnished to the Harrises.

      .Clinton specifically acknowledged during his testimony that the allegedly falsified reports provided by Sims would have had to have been prepared on a computer other than the one used in the Killen franchise and transferred to the Harrises at the time of the sale of the franchise, because the computer at the Killen franchise retained the lower sales figures.

      . “A directed verdict is now referred to as a judgment as a matter of law. See Rule 50, Ala. R. Civ. P.” Skerlick v. Gainey, 42 So.3d 1288, 1289 n. 2 (Ala.Civ.App.2010). However, "[i]n an action tried upon the facts without a jury, such a motion is properly characterized as a motion for a judgment on partial findings by the trial court.” Ex parte Wood, 69 So.3d 166, 169 n. 3 (Ala.2010) (citing Rule 52(c), Ala. R. Civ. P.).

      . Mitzi included this last argument despite her contention that the Harrises' complaint failed to allege that she had and breached a duty to disclose.

      . Mitzi supported her contention that the punitive-damages award was' excessive with her own affidavit testimony indicating that "[her] net worth is $0 or is negative.”

      . Upon application to the trial court, Mitzi was granted leave to proceed in forma pau-peris on appeal. See Rule 24(a), Ala. R.App. P.

      .Contrary to the Harrises' assertion in their brief to this Court, Mitzi’s argument pertaining to any potential fraudulent-suppression claim does not concede that the Harrises actually presented such a claim. Mitzi’s brief, at p. 25. Instead, Mitzi makes clear that, although a fraudulent-suppression claim was not included in the Harrises' complaint, based on the arguments of counsel for the Harrises during trial and the absence of any specific findings by the trial court in that regard, to the extent that any such claim may have been tried by the implied consent of the parties, it is also unsupported by the evidence.

      . Because in her postjudgment motion Mitzi properly challenged the sufficiency of the evidence to sustain the trial court’s judgment, which did not include findings of fact, she has properly preserved her claims for purposes of appeal. See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) ("[H]old[ing] that, in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”).


source: Caselaw Access Project

author: MALONE, Chief Justice.

license: Public Domain

text:
    AURORA HEALTHCARE, INC.; Aurora Cares, LLC, d/b/a Tara Cares; and Birmingham Nursing and Rehabilitation Center East, LLC v. Sharon RAMSEY, as administratrix of the Estate of Mary Pettway.
    1091561.
    Supreme Court of Alabama.
    Oct. 21, 2011.

      Sybil Vogtle Newton, Reed R. Bates, and R. Todd Huntley of Starnes Davis Florie LLP, Birmingham, for appellants.
    Samuel Fisher and Toni J. Braxton of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellee.
   MALONE, Chief Justice.

Aurora Healthcare, Inc.; Aurora Cares, LLC, d/b/a Tara Cares (hereinafter referred to collectively as “the Aurora defendants”); and Birmingham Nursing and Rehabilitation Center East, LLC (“Birmingham East”) (the Aurora defendants and Birmingham East are hereinafter referred to collectively as “the defendants”), appeal from an order of the Jefferson Circuit Court denying their motion to compel arbitration. We reverse and remand.

Facts and Procedural History

On or about November 7, 2003, Mary Pettway, then 75 years old, was discharged from the hospital at the University of Alabama at Birmingham and admitted to a nursing home in Birmingham owned and operated by the defendants. She was returned to the hospital and then readmitted to the nursing home twice in the weeks following her initial discharge. Upon Pett-way’s first readmission, an arbitration agreement was apparently executed, along with the other admission documents, on behalf of Pettway. Pettway was finally returned to the hospital, where she died on December 10, 2003.

On November 3, 2005, Sharon Ramsey, in her capacity as administratrix of Pett-way’s estate, filed a complaint in the Wilcox Circuit Court against the defendants. The complaint asserted a variety of statutory and common-law claims allegedly arising from Pettway’s death, including a wrongful-death claim.

The defendants filed a motion to dismiss or for a change of venue on December 6, 2005, on the basis of Ala.Code 1975, § 6-5-546. That statute provides that a wrongful-death action against a health-care provider must be brought in the county where the alleged acts or omissions occurred, if the acts or omissions occurred in only one county. Ramsey alleged that there was a question of fact as to whether the acts and omissions complained of occurred in only one county. As a result, the parties litigated the issue of venue vigorously until the Wilcox Circuit Court entered an order transferring the case to the Jefferson Circuit Court (“the circuit court”) on March 27, 2006.

On May 11, 2006, the Aurora defendants filed a motion to dismiss on the ground that they did not own the nursing home at which Pettway resided during the relevant period. On the same day, Birmingham East filed an answer to Ramsey’s complaint. On May 17, 2006, the circuit court entered both a scheduling order and an order denying the Aurora defendants’ motion to dismiss.

On August 21, 2006, Ramsey moved for an extension of the deadline set in the scheduling order for filing expert-witness disclosures pursuant to Rule 26, Ala. R. Civ. P. On August 23, 2006, the defendants filed their opposition to that motion. Also in August and September 2006, the Aurora defendants served notices of intent to subpoena third parties. The Aurora defendants served interrogatories and requests for production of documents on Ramsey on September 19, 2006. On October 11, 2006, the defendants filed their own motion to extend the time in which to make their Rule 26 expert-witness disclosures. On October 25, 2006, the Aurora defendants responded to Ramsey’s discovery requests.

On November 3, 2006, the defendants filed their motion to compel arbitration, based in part on the arbitration agreement executed in conjunction with the admission agreement Ramsey executed upon Pett-way’s second admission to the nursing home. That motion constitutes the defendants’ first mention of arbitration in this proceeding. The defendants’ entire explanation for their delay in asserting their right to arbitrate this case is contained in a motion for an extension of their own Rule 26 expert-witness disclosure deadlines, also filed by the defendants on November 8, 2006: “Defendants only recently became aware of the existence of an arbitration agreement between the Plaintiff and the Defendants.”

Active litigation continued through April 24, 2008, when a hearing on the motion to compel arbitration was conducted. During the hearing the circuit court requested that the parties file letter briefs. On May 2, 2008, the defendants sent a letter brief to the circuit court addressing only the issue whether they had waived their right to arbitration by participating in the litigation process. There is no corresponding letter brief from Ramsey in the record. The record then falls inexplicably silent for nearly two years. In April and May 2010, counsel for the defendants withdrew and new counsel entered an appearance.

On June 23, 2010, the circuit court entered its order denying the defendants’ motion to compel arbitration. In that order, the circuit court found that the defendants had substantially invoked the litigation process by litigating the issue of venue to a conclusion, by continuing to file “significant pleadings” .after the case was transferred, and by participating in discovery. The circuit court also determined that Ramsey had been prejudiced by incurring significant attorney fees in participating in the litigation. The June 23, 2010, order states, in pertinent part:

“[T]he Defendants filed an Answer on May 11, 2006, that failed to assert a right to arbitration. In addition to filing an Answer, the Defendants filed several motions to dismiss or transfer venue, thus continuing to proceed as if they were preparing for a judicial resolution of Plaintiff[]s claims. The parties litigated the issue of venue for three months. This undoubtedly ‘bespeaks an intention to abandon the right [to compel arbitration] in favor of the judicial process.’ See, Companion Life Ins. Co. [v. Whitesell Mfg., Inc., 670 So.2d 897 (Ala.1995),] and Voyager Life Insurance Co. [v. Hughes, 841 So.2d 1216 (Ala.2002) ]. The Defendants were in possession of the arbitration document throughout their participation in the litigation-related activity, and it serves no purpose for a party who does not intend to waive the right to compel arbitration to, before moving to compel arbitration:
“•litigate the venue issue to a conclusion;
“• following transfer of the action to this Circuit Court, continue litigation with significant pleadings filed;
“• participate in the discovery process,
“To the undersigned, it is clear the Defendants were preparing for a judicial resolution.
“In Ex parte Hood, 712 So.2d 341 (Ala.1998), the defendant removed an action to the federal court. Four months later, while the action was still pending in the federal court, the defendant advised the plaintiff through correspondence that it was invoking its rights under an arbitration agreement. Shortly thereafter, in its answer to the complaint, the defendant asserted its right to arbitration. [The] Court stated:
“ ‘We might assume that if Golden [the defendant] had immediately followed ... its removal with service of its answer pleading an arbitration defense, such action would have been sufficient to put Hood [the plaintiff] on notice that Golden still intended in the federal court to reserve its right to seek arbitration. Filing an answer at such a time might have indicated that Golden intended to pursue arbitration instead of a federal judicial remedy, and it would have given Hood the opportunity to avoid spending the resources necessary to have the case remanded to the state court for a trial. As it was, Golden removed the ease to the federal court and proceeded as if it was preparing for a judicial resolution of Hood’s claim.’
“Hood, supra.
“In conclusion, when Ramsey’s Complaint was filed on November 3, 2005, these Defendants had in their possession an arbitration document, yet they proceeded to engage in litigation activities (including, notably, a legal fight over exactly where to actually litigate, and the filing of an Answer that did not assert a right to arbitration) until November 3, 2006, exactly one year after filing of the Complaint. The Court DETERMINES that Plaintiff Ramsey has indeed been prejudiced by Defendants’ unreasonable delay to raise the right to arbitration in that she significantly participated in the litigation so far, thereby incurring considerable attorney fees and expenses for, to-wit: conducting legal research; argument in opposition to transferring venue; preparing and filing a petition for writ of mandamus with the Alabama Supreme Court; responding to several motions to dismiss and strike; preparing and filing an Amended Complaint; preparing discovery and responding to discovery; participating in phone conferences; and, of course, making court appearances. As all of the foregoing occurred as a direct result of Defendants’ continuing participation in the litigation process, this Court FINDS that Defendants have clearly WAIVED any right to compel arbitration of Plaintiff Ramsey’s claims.”

(Capitalization and emphasis in original.) Virtually all the litigation activity between November 3, 2006, and June 23, 2010, was devoted to the question of arbitration.

Standard of Review

In this case, the circuit court heard no ore tenus evidence. Its findings of fact were based on the paper record and on hearings attended only by counsel. Our review under such circumstances of the circuit court’s determination that a party has waived its right to arbitration is de novo. ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C., 4 So.3d 452, 455 (Ala.2008). To the extent, however, that the circuit court’s findings supporting its con clusion are based on questions of fact, its judgement based on those findings will not be reversed unless clearly erroneous. Big Valley Home Ctr., Inc. v. Mullican, 774 So.2d 558, 560 (Ala.2000).

Discussion

Whether a party has waived its right to arbitration by participating in the litigation process is determined pursuant to the following standard:

“It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”

Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). Thus, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration has substantially invoked the litigation process, bespeaking an intent to abandon arbitration in favor of the judicial process, and (2) that the party opposing arbitration would be “substantially prejudiced” by an order requiring it to submit to arbitration. Paragon Ltd., Inc. v. Boles, 987 So.2d 561, 564 (Ala.2007). See also SouthTrust Bank v. Bowen, 959 So.2d 624, 633 (Ala.2006). Because there is a strong federal policy favoring arbitration, waiver of the right to compel arbitration is not lightly inferred, and the party seeking to prove waiver has a “heavy burden.” Boles, 987 So.2d at 564.

Beginning our analysis with the second question — whether the opposing party would be substantially prejudice — we conclude that Ramsey has failed to carry her “heavy burden” of establishing substantial prejudice caused by the defendants’ belated invocation of the arbitration agreement. Ramsey stated in her opposition to the defendants’ motion to compel arbitration that she had “incurred considerable attorney fees and expenses as a result of the Defendants’ participation in the litigation process.” Ramsey stated that her counsel’s activities included “preparing discovery and responses to discovery, ... legal research, ... phone conferences and making court appearances in Wilcox and Jefferson County Circuit Courts.”

The circuit court’s June 23, 2010, order likewise states that Ramsey had conducted “legal research; argument in opposition to transferring venue; preparing and filing a petition for writ of mandamus with the Alabama Supreme Court [related solely to venue]; responding to several motions to dismiss and strike; preparing and filing an Amended Complaint; preparing discovery and responding to discovery; participating in phone conferences; and ... making court appearances.” These assertions are not supported by any factual evidence in the record.

In Hales v. ProEquities, Inc., 885 So.2d 100 (Ala.2003), this Court stated the factors most significant in determining whether the party opposing arbitration will be prejudiced if ordered to arbitrate. One factor is whether “ ‘the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.’” 885 So.2d at 105-06 (quoting Morewitz v. West of England Ship Owners Mut. Prot. & Indem. Ass’n, 62 F.3d 1356, 1366 (11th Cir.1995)). Another is whether the party seeking arbitration “ ‘took advantage of judicial discovery procedures not available in arbitration.’ ” Hales, 885 So.2d at 106 (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir.1968)).

In its June 23, 2010, order, the circuit court reproduced a timeline of events that was initially produced by Ramsey in her filing in opposition to the motion to compel arbitration. The timeline purportedly demonstrates the extent to which the defendants substantially invoked the litigation process. The timeline shows that much of Ramsey’s costs were incurred litigating the issue of venue. The incurring of those costs, however, cannot constitute prejudice in light of this Court’s holding that “[a] defendant has the right to have the proper venue established before it has any obligation to move to compel arbitration.” Thompson v. Skipper Real Estate Co., 729 So.2d 287, 292 (Ala.1999).

The litigation activities conducted between April 2006, when the case was transferred to the Jefferson Circuit Court, and November 2006, when the motion to compel arbitration was filed, were primarily discovery oriented. The Code of Procedure of the National Arbitration Forum, expressly incorporated into the arbitration agreement allegedly executed by Ramsey upon Pettway’s second admission to the nursing home, at Rule 6 requires arbitrating parties to submit available documents in support of, or in opposition to, all claims. Little, if any, discovery appears to have been conducted of the sort that suggests that the defendants “ ‘took advantage of judicial discovery procedures not available in arbitration.’ ” Hales, 885 So.2d at 106 (quoting Carcich, 389 F.2d at 696 n. 7). See also Ryan’s Family Steakhouse, Inc. v. Kilpatric, 966 So.2d 273, 284 (Ala.Civ.App.2006) (noting that participating in discovery permitted under rules specified in the arbitration agreement between the parties does not constitute prejudice). We do note that the defendants served notices of intent to serve nonparty subpoenas, but there is no suggestion in the record that Ramsey took any action or incurred any expenses in response to those notices.

The record reflects that much of Ramsey’s time expended in litigation after November 2006 was devoted to opposing arbitration. Expenses incurred by the party opposing arbitration are not considered prejudicial. A holding to the contrary would result in the absurdity that every party opposing arbitration can immediately allege prejudice on the mere ground that the party opposed it.

Ramsey’s motion in opposition to arbitration presented only conclusory assertions that she had incurred litigation costs. Her motion was not accompanied by an affidavit or by any other evidence in support of the allegation that she would be prejudiced by being compelled to arbitrate her claims. Ramsey did not even allege how many hours her counsel had spent in litigation matters or the amount of fees or expenses incurred in such matters. Alabama caselaw shows that a party alleging prejudice is unlikely to prevail without presenting supporting evidence. See, e.g., SouthTrust Bank v. Bowen, 959 So.2d at 633 (holding that the plaintiff opposing arbitration failed to meet his “heavy burden” when he provided no evidence supporting his allegation that he would be prejudiced by being compelled to arbitrate). See also Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001) (“If [a] party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.”). Thus, in Ryan’s Family Steakhouse, Inc. v. Kilpatric, 966 So.2d at 284, the court found no prejudice where the record contained no evidence supporting the allegations of the plaintiff, who opposed arbitration, that she had expended significant time and resources responding to discovery propounded by the party seeking arbitration.

This Court’s opinions upholding a finding of prejudice to the party opposing arbitration are equally consistent in applying a high standard. In Whitesell Manufacturing, Inc., supra, the plaintiffs argument that he would have been substantially prejudiced if arbitration were compelled was well supported by the fact that the defendant sought arbitration only after it had removed the case to federal court and had received an adverse ruling in its attempt to dispose of the case on federal statutory grounds. 670 So.2d at 899. That plaintiff also submitted an affidavit showing the number of hours expended by counsel and the amount of fees incurred in seeking remand to the state court. Id.

In Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6 (Ala.2006), the defendant seeking arbitration removed the action to federal court, filed an answer in the federal court that did not mention arbitration, then sought to have the case transferred to pending multidistrict litigation in Illinois. After opposing the transfer to Illinois, the plaintiff won remand of the case to the state court. Only then did the defendant move to compel arbitration. 939 So.2d at 14-15. Under such facts, this Court concluded that it could not “realistically be disputed” that the plaintiff had been prejudiced by the necessity of filing motions and briefs opposing the removal, opposing the transfer to Illinois (including filing motions and briefs in Illinois), and moving for a remand. 939 So.2d at 17.

In Big Valley Home Center, Inc. v. Mullican, 774 So.2d 558 (Ala.2000), this Court affirmed a trial court’s denial of a motion to compel arbitration where the defendant seeking arbitration had waited two years to invoke an arbitration agreement, which it did on the “eve of trial” and immediately after a settlement offer had been made. 774 So.2d at 563. This Court concluded that “too great a delay took place” in a case in which the plaintiff had been allowed to expend time and money preparing for trial before the defendant moved to compel arbitration. Id.

Under the undisputed facts of this case and the applicable standard of review, we conclude that Ramsey failed to establish that she was prejudiced by the defendants’ belated assertion of their arbitration rights. Because a plaintiff opposing arbitration must show both the defendant’s substantial invocation of the litigation process and resulting “substantial prejudice,” we pretermit discussion of whether the defendants here had invoked the litigation process so as to bespeak an intent to abandon their right to arbitration.

Conclusion

Because we conclude that there is insufficient evidence in the record to support a determination that Ramsey was substantially prejudiced by the defendants’ belated assertion of their right to arbitration, the order of the circuit court denying the defendants’ motion to compel arbitration must be reversed. We are unable to determine, however, whether this case is due to be arbitrated. The parties dispute whether Ramsey’s signature on the arbitration agreement is authentic or forged, whether the agreement, signed subsequent to Pettway’s initial admission to the nursing home, operates retroactively, and whether the Aurora defendants, nonsigna-tories to the arbitration agreement, can enforce the agreement. The circuit court did not provide findings of fact or conclusions of law as to any of those issues but denied the defendants’ motion to compel solely on the basis of waiver.

Accordingly, we reverse the circuit court’s June 23, 2010, order denying the defendants’ motion to compel arbitration. We remand the cause for that court to consider the motion to compel arbitration in light of the issues associated with the validity and scope of the arbitration agreement proffered by the defendants.

REVERSED AND REMANDED WITH INSTRUCTIONS.

STUART, PARKER, and WISE, JJ„ concur.

SHAW, J., concurs in the result.

      . Other entities named as defendants were dismissed after proving they did not own or operate the nursing home where Pettway resided during the period relevant to Ramsey’s claims.

      . The defendants and the circuit court both state variously in the record that Ramsey petitioned for a writ of mandamus to return the case to Wilcox County. No evidence of the petition appears in the record. The circuit court, in its order of June 23, 2010, states that the petition was filed with the Alabama Supreme Court, but it also states that the circuit court entered an order denying the mandamus petition on June 21, 2006. This Court’s records indicate that a petition for a writ of mandamus filed by Ramsey was denied on June 21, 2006 (case no. 1051091).

      .Although the May 17, 2006, order and other orders and filings referred to by the parties are not included in the record, the circuit court states in its June 23, 2010, order that it entered the earlier order.

      4. The only answer filed on May 11, 2006, was filed by Birmingham East.

      . Many of the events listed unquestionably do not show the defendants’ invocation of the litigation process. For example, the first event listed is the filing of Ramsey’s complaint.

      . We note that Ramsey does not argue that we should overrule Thompson.

      . We take judicial notice of the National Arbitration Forum's Code of Procedure. See Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1284 (Ala.2008).


author: MOORE, Judge. THOMAS, Judge,

text:
    Ex parte ARLINGTON PROPERTIES, INC. (In re Arlington Properties, Inc. v. Cantrell Brown).
    2090038.
    Court of Civil Appeals of Alabama.
    March 26, 2010.
    Rehearing Denied June 18, 2010.

      Joseph M. Willoughby, Gadsden, for petitioner.
    Misty S. Ledbetter of Legal Services Alabama, Inc., Anniston, for respondent.
   MOORE, Judge.

Arlington Properties, Inc. (“Arlington”), petitions this court for a writ of mandamus directing the Etowah Circuit Court to grant its motion to dismiss Cantrell Brown’s appeal from the Etowah District Court’s judgment in favor of Arlington on Arlington’s unlawful-detainer complaint. We grant the petition and issue the writ.

Procedural History

On June 24, 2009, Arlington filed in the Etowah District Court a complaint asserting an unlawful-detainer claim against Brown. After a trial, the district court rendered a judgment in favor of Arlington on July 21, 2009. In the judgment, the district court stated that Brown had until August 4, 2009, to appeal the judgment. The judgment was not entered into the State Judicial Information System until July 27, 2009, and, thus, it was deemed “entered” on that date. Rule 58, Ala. R. Civ. P. On August 4, 2009, Brown filed a notice of appeal to the Etowah Circuit Court. On August 12, 2009, Arlington filed a motion to dismiss the appeal, alleging that the notice of appeal had not been timely filed. On October 7, 2009, the circuit court denied that motion. Arlington filed its petition for a writ of mandamus to this court on October 14, 2009.

Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).’
“Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009).

Discussion

In its petition, Arlington argues that, pursuant to Ala.Code 1975, §§ 6-6-350 and 35-9A-461, Brown’s notice of appeal to the circuit court was required to have been filed within seven days after the entry of the district court’s judgment, that Brown’s appeal was not filed within that seven-day period, and that, therefore, Brown’s appeal is due to be dismissed as untimely filed. Specifically, Arlington points out that the Etowah District Court’s practice is to handwrite, sign, and date orders in open court, to notify the losing party of his or her right to appeal and of the time within which the appeal must be perfected, and, generally, to deliver the order to the clerk’s office that same day. Based on those facts, Arlington contends that the time to appeal should have run from the date the judgment was rendered, i.e., July 21, 2009, not the date it was entered into the State Judicial Information System, i.e., July 27, 2009.

Brown, on the other hand, argues that, pursuant to Rule 58(c), Ala. R. Civ. P., the district court’s judgment was entered on July 27, 2009. He further argues that, because the time in which to file an appeal is less than 11 days, pursuant to Rule 6, Ala. R. Civ. P., intermediate Saturdays and Sundays must be excluded from the computation of the 7-day period. Rule 6(a) provides, in pertinent part:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal .holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day that is not one of the aforementioned days. When 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.”

Based on his assertion that Rule 6 applies in this case, Brown concludes that his notice of appeal was filed 6 days after the district court’s judgment was entered and, thus, was timely filed.

We initially note that Arlington’s argument that the time for appeal ran from the date the district court’s judgment was rendered is without merit. Both §§ 6-6-350 and 35-9A-461 provide that the time for appealing from an unlawful-detainer judgment runs from the “entry” of the judgment. There is a “distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment.” -See Committee Comments to Amendment to Rule 58 Effective September 19, 2006, quoted in Bolden v. Wise Alloys, LLC, 5 So.3d 1287 (Ala.Civ.App.2008). Rule 58(c) specifically provides that a judgment is deemed entered as of the date it is entered into the State Judicial Information System. Accordingly, we conclude that the district court’s judgment was entered on July 27, 2009.

We cannot, however, end our analysis here. We must determine whether Rule 6(a), Ala. R. Civ. P., applies to the computation of the time in which to appeal in this case because, if it does not apply, Brown’s notice of appeal was not timely filed.

“The Rules of Civil Procedure cannot be applied if applying them would offend restrictions imposed by our Constitution.” Ex parte General Motors Corp., 800 So.2d 159, 164 (Ala.2000) (Lyons, J., concurring specially). “The Alabama Rules of Civil Procedure were promulgated by [the Alabama Supreme] Court under authority granted by the Alabama Constitution of 1901, amd. 328, § 6.11.” State v. Bragg, 710 So.2d 417, 418 (Ala.1998). That section of the constitution, now Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.), provides, in pertinent part:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein.... ”

Sections 6-6-350 and 35-9A-461 both provide for a seven-day period in which to file a notice of appeal to the circuit court from an unlawful-detainer judgment entered in the district court. Thus, those statutes grant appellate jurisdiction to circuit courts to review an unlawful-detainer judgment only if the notice of appeal is filed within that seven-day period. The application of Rule 6 would extend that period and, consequently, the jurisdiction of the circuit courts to decide appeals when the notice of appeal is filed more than seven days after the judgment was entered. Because such a result would be offensive to our constitution, we must conclude that Rule 6 is inapplicable to appeals to the circuit court in unlawful-detainer actions.

In State v. Ladner & Co., 346 So.2d 1160, 1161 (Ala.Civ.App.1977), this court considered the question “whether a taxpayer who fail[ed] to perfect an appeal from a final tax assessment, pursuant to Tit. 51, § 140, [Ala.Code 1940 (Re-comp.1958),] may thereafter have the assessment set aside by a Rule 60(b)[, Ala. R. Civ. P.,] motion.” The taxpayer argued that “a final assessment of taxes is as conclusive as a judgment of the circuit court” and, thus, could be “altered as any other judgment.” 346 So.2d at 1161. The State argued thát Tit. 51, § 140, Ala.Code 1940 (Recomp. 1958), provided the exclusive method for contesting a tax assessment, i.e., an appeal to the circuit court, that the taxpayer had not followed that procedure, and, thus, that the trial court was without jurisdiction to entertain the taxpayer’s Rule 60(b) motion. Id. This court agreed, stating:

“The Rules of Civil Procedure apply to proceedings in courts. Hence, the rules applied to the proceeding once it had been instituted in the Circuit Court of Mobile County. However, the rules do not provide the mechanism by which a party may invoke the jurisdiction of the court.
“The jurisdiction of the Circuit Court of Mobile County over disputes arising from assessments of taxes by the State is governed by statute. Tit. 51, § 140, Code of Alabama [1940 (Recomp. 1958) ]. Section 150 of the Alabama Constitution [of 1901] limits the rule making power of the supreme court to rules which do not affect the jurisdiction of the circuit court. The rules are only procedural and are not to be interpreted as modifying substantive law. Hence, an interpretation of Rule 60(b)[, Ala. R. Civ. P.,] which would be at odds with the statutory scheme of judicial review of the orders of administrative agencies would alter jurisdiction of the circuit court and would constitute judicial alteration of substantive law.”

346 So.2d at 1161.

In Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977), a case that also challenged a final tax assessment, the taxpayer filed his notice of appeal beyond the 30 days provided by Tit. 51, § 140. The taxpayer argued that his appeal was timely filed pursuant to Rule 6(a) and 6(e), Ala. R. Civ. P., because the 30-day period expired on a Sunday and because he had received notice of the final assessment by mail. 351 So.2d at 601. This court, citing Ladner, disagreed with the taxpayer, stating:

“Compliance with the procedures of § 140 is a jurisdictional requirement. ‘The jurisdiction of a court must be invoked in the manner and within the time required by statute.... The right of appeal from a final assessment of the revenue department of the state is purely statutory and must be exercised in the manner and within the time prescribed therein.’ State v. Empire Bldg. Co., 46 Ala.App. 565, 567, 246 So.2d 454, 456 (1971). To apply the Alabama Rules of Civil Procedure so as to find an external exception to the jurisdictional time requirements of § 140 would constitute an impermissible extension of jurisdiction and modification of substantive rights. State v. Ladner & Co., 346 So.2d 1160 (Ala.Civ.App.1977).”

351 So.2d at 601.

In 1 Champ Lyons, Jr., and Ally W. Howell, Alabama Rules of Civil Procedure Annotated, Author’s Comments § 6.1 (4th ed. 2004), the authors discuss Ladner and Mitchell, stating:

“After an early indication of a reluctance with respect to applicability of Ala. R. Civ. P. Rule 6 to computations dealing with timeliness of commencement of proceedings, more recent pronouncements tend to make Ala. R. Civ. P. Rule 6 applicable. In an earlier case, where a taxpayer sought to appeal a final sales tax assessment under a statute prescribing that an appeal must be taken to the circuit court of the county in which the taxpayer resides by filing notice of appeal with the Secretary of the Department of Revenue and with the Register of the circuit court of the county in which the appeal shall be taken within 30 days from the date of the final assessment, he was not entitled to the additional day after Sunday which is available under Ala. R. Civ. P. Rule 6(a). Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977). The rules were said to apply to the proceeding once it has been instituted in the circuit court but the rules did not govern the mechanism by which a party may invoke the jurisdiction of the court since such would constitute an impermissible extension of jurisdiction and modification of substantive rights. See also State v. Ladner & Co., Inc., 346 So.2d 1160 (Ala.Civ.App.1977). Thus, notwithstanding the reference in Ala. R. Civ. P. Rule 6(a) to the applicability of its provisions to computations of time prescribed ‘by any applicable statute,’ Ala. R. Civ. P. Rule 6(a) does not regulate the time in which to take.an appeal to the circuit court.”

Despite the foregoing authority, the dissent, citing Taylor v. Department of Industrial Relations, 409 So.2d 447, 449-50 (Ala.Civ.App.1982), maintains that Rule 6 previously has been applied to extend the period in which to perform the jurisdictional act of filing an appeal. Actually, the question in Taylor concerned whether the provisions of Rule 6 and Ala.Code 1975, § 1-1-4, extended the time for taking an appeal from an adverse unemployment-compensation decision. At that time, Ala. Code 1975, § 25-4-95, a part of the Unemployment Compensation Act, § 25-4-1 et seq., Ala.Code 1975, granted claimants 10 days to file a notice of appeal with a circuit court from a final decision of the unemployment-compensation board of appeals. In Taylor, Taylor, the claimant, received a final order on May 22 requiring her to reimburse the Department of Industrial Relations for an alleged overpayment of unemployment-compensation benefits. As a result, Taylor had until June 1 to file her notice of appeal, but the Montgomery Circuit Court was closed that day in observance of Jefferson Davis’s birthday, a legal holiday. Taylor thus filed her notice of appeal the next day, i.e., June 2. The Department moved to dismiss the appeal, and Taylor responded that, pursuant to the provisions of § 1-1-4 and Rule 6, since the last date to file the appeal fell on a legal holiday, the appeal was timely when filed the next day. The court granted the motion to dismiss on the grounds that the notice of appeal was untimely and that Taylor had also failed to serve the director of the Department with the appeal within 10 days.

On appeal, Taylor again asserted that she had timely filed her notice of appeal pursuant to § 1-1-4 and Rule 6. Taylor also argued that she had perfected her appeal by properly serving the director of the Department by submitting copies of her notice of appeal to the circuit clerk along with a postage paid envelope for service on the Department’s director by certified mail. As to the first argument, the court noted that the Unemployment Compensation Act itself did not contain any language controlling the method by which to compute the time for filing a notice of appeal. The court observed, however, that two “compatible” provisions referenced the computation of time, namely, § 1-1-4 and Rule 6. 409 So.2d at 449. At the time Taylor was decided, § 1-1-4 provided, in pertinent part:

“Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is a Sunday, or a legal holiday as defined in section 1-3-8, [Ala.Code 1975,] or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day must also be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.”

Rule 6 “[v]ery similarly,” 409 So.2d at 449, provided:

“In computing any period of time prescribed ... by any applicable statute.... [t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday.”

The court stated that both provisions previously had been applied in computing statute-of-limitations periods. The court then stated:

“We find that the statutorily prescribed method of computing time under ‘any act,’ section 1-1-4, or ‘any applicable statute,’ rule 6(a), pertains to the Unemployment Compensation Act. We must, in construing the above quoted statutes, give the language its plain, ordinary and everyday meaning. State v. International Minerals & Chemical Corp., 381 So.2d 60 (Ala.Civ.App.1979), aff'd, 381 So.2d 62 (Ala.1980). This court construes the statutory language so that the procedural sections of the Unemployment Compensation Act are read in pari materia with the computation of time provisions. See State Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975); Spillers v. Lafever, 39 Ala.App. 465, 103 So.2d 837 (1958). Section 25-4-95[, Ala.Code 1975,] requires an appeal to be filed within ten days, and section 1-1-4 and rule 6(a) provide a method for computing the ten days.
“Accordingly, since the last day on which the claimant could file her appeal (June 1) was a legal holiday, that day was excluded. Therefore, the claimant had until the next day (June 2) to file an appeal in circuit court. Claimant did so file her action on June 2, and consequently her appeal was timely.”

409 So.2d at 449.

Taylor is distinguishable from this case because the provisions of Rule 6 at issue in Taylor were compatible and very similar to the provisions of § 1-1^4, a validly enacted statute. Because of the similarities in the statute and the rule, the court had no occasion to address the issue whether the rule alone could extend the time for filing a notice of appeal. In this case, the provisions of Rule 6 at issue are not similar to or compatible with § 1-1^4. Section 1-1-4 contains no language similar to Rule 6 expressing any legislative intent that when the statutory period for taking an appeal is less than 10 days, the time may be computed by excluding intervening weekend days. Section 1-1-4 simply states that if the last day for performing any act that is provided by law to be done falls on a Saturday, a Sunday, or a legal holiday, the act may be performed on the next succeeding working day. Thus, the court is faced with an issue not addressed in Taylor, namely, whether the language of Rule 6 alone may expand the time for taking an appeal.

As stated above, the resolution of that issue depends on whether the supreme court may validly enact a rule of civil procedure that extends the time for taking an appeal consistent with its power to promulgate rules regulating the administrative procedures of state courts. The constitutional grant of power, found in Amendment No. 328 to the Constitution of Alabama of 1901 (now Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.)), expressly states that the power to make rules “governing the administration of all courts and rules governing practice and procedure in all courts” does not enable the supreme court to make rules that “affect the jurisdiction of circuit ... courts.” That identical restriction also appears in Ala.Code 1975, § 12-2-7. Moreover, the supreme court itself has recognized that its inherent power to promulgate rules extends only to prescribing rules of practice and procedure “for the conduct of the business of the court,” Brown v. McKnight, 216 Ala. 660, 661, 114 So. 40, 41 (1927), excluding any notion that the court can promulgate a rule that affects the jurisdiction of a court.

Pursuant to §§ 6-6-350 and 35-9A-461, the legislature conferred jurisdiction on circuit courts to hear appeals from district courts filed within seven days of a judgment in an unlawful-detainer action. To the extent Rule 6 extends that time to more than seven days, see Committee Comments to October 1, 1995, Amendment to Rule 6, the rule purports to enlarge the appellate jurisdiction of the circuit court in contravention of the constitutional language expressly denying the court the power to make a rule affecting the jurisdiction of the circuit courts. Consequently, Rule 6 alone cannot validly extend the deadline for the filing of an appeal from the district court to the circuit court in an unlawful-detainer action.

We do not doubt that the legislature could have opted to apply Rule 6 to the computation of the period in which to appeal in unlawful-detainer actions. However, the legislature chose not do so. In § 35-9A-461(a), the legislature has indicated that the rules of civil procedure apply to unlawful-detainer actions “except as modified by this chapter.” Section 35-9A-461(d) states that “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.” That clear and unambiguous statutory language, not allowing for appeals after seven days, does not reference Rule 6 and does not state that seven days actually means seven days, “not counting intervening Saturdays and Sundays,” which would be consistent with Rule 6. The language used by the legislature indicates its intent that Rule 6 would not be applied to appeals from judgments in district courts in unlawful-detainer actions. Although this court may find that outcome harsh or unfair, questions as to “propriety, wisdom, necessity, utility, and expediency, are held exclusively for the legislative bodies.” Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944).

Having determined that Rule 6 is not applicable in the present case, we must conclude that Brown’s appeal was not timely filed. The district court’s judgment was entered on July 27, 2009, and Brown filed his notice of appeal 8 days later, on August 4, 2009.

“The failure to file a timely notice of appeal is a jurisdictional defect that prevented the circuit court from acquiring jurisdiction over the appeal. See Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007). ‘A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute.’ Flannigan v. Jordan, 871 So.2d 767, 770 (Ala.2003).”

Shamburger v. Lambert, 24 So.3d 1139, 1142 (Ala.Civ.App.2009).

Based on the foregoing, we conclude that the requirements for the issuance of a petition for a writ of mandamus have been met. Accordingly, we grant Arlington’s petition and direct the circuit court to dismiss Brown’s appeal.

PETITION GRANTED; WRIT ISSUED.

PITTMAN, J., concurs.

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

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

THOMAS, Judge,

dissenting.

The main opinion holds that using Rule 6(a), Ala. R. Civ. P., to compute the period within which a party must file a notice of appeal in an unlawful-detainer or eviction action would unconstitutionally expand the jurisdiction of the circuit court. I disagree.

In Taylor v. Department of Industrial Relations, 409 So.2d 447, 449-50 (Ala.Civ.App.1982), overruled on other grounds by White v. Allen, 567 So.2d 295 (Ala.Civ.App.1989), this court held that Rule 6(a), Ala. R. Civ. P., could be used to compute the time for filing a notice of appeal under the provisions of the Unemployment Compensation Act, codified at Ala.Code 1975, § 25-4-1 et seq. Alabama Code 1975, § 25-4-95, provides that an aggrieved party may appeal a decision of the Department of Industrial Relations board of appeals to the circuit court. At the time we decided Taylor, § 25-4-95 provided the following procedure for perfecting an appeal:

“ ‘Within 10 days after the decision of the board of appeals has become final, any party to the proceeding ... who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court....”’

Taylor, 409 So.2d at 448 (quoting § 25-4-95). This court held that Rule 6(a) governed the calculation of the time for appeal provided by § 25-4-95. Id. at 449. In so holding, we stated:

“[T]he claimant in the instant action is not seeking to file after the time period. Rather ... she is correctly contending that the ten day time period for filing appeals under [§ ] 25M-95 should be computed by the method defined in [§ ] 1 — 1—4[, Ala.Code 1975,] and [R]ule 6(a).”

Id. at 450. Thus, we held that the application of Rule 6(a) did not impermissibly expand the jurisdiction of the circuit court. Id.

The original jurisdiction of an unlawful-detainer action lies in the district court. Ala.Code 1975, § 6-6-330. The circuit court has appellate jurisdiction over appeals from final judgments of the district court. See Ala.Code 1975, § 12-12-70. Alabama Code 1975, § 6-6-350, provides that a notice of appeal to the circuit court must be filed within seven days of the final judgment of the district court. Rule 6(dc) provides that “Rule 6 applies in the district courts.” Rule 6 also applies to proceedings in circuit courts. See Rule 1(a), Ala. R. Civ. P. Because the Rules of Civil Procedure apply to a case both while it is in the district court and while it is in the circuit court, and because of our holding in Taylor, supra, I see no reason to preclude the application of the Rules of Civil Procedure to the notice of appeal to the circuit court from a judgment of the district court.

Eviction actions are governed by Ala. Code 1975, § 35-9A-461, of the Alabama Uniform Residential Landlord and Tenant Act, codified at Ala.Code 1975, § 35-9A-101 et seq. When an eviction action has been filed in the district court and the district court has entered a final judgment, Ala.Code 1975, § 35-9A-461(d), provides that a notice of appeal to the circuit court must be filed within seven days. Thus, § 35-9A-461(d) provides the period within which the notice of appeal must be filed. Alabama Code 1975, § 35-9A-461(a), provides that “[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.” The establishment in § 35-9A-461(d) of the period within which a party must file a notice of appeal to the circuit court from a judgment of the district court does not modify or conflict with any of the Rules of Civil Procedure; therefore, it does not preclude the application of Rule 6(a) to compute the time allowed for the filing of a notice of appeal.

For the reasons stated above, I do not believe that the application of Rule 6(a) represents a constitutionally impermissible expansion of the jurisdiction of the circuit court. See Taylor, supra. Therefore, I would hold that Cantrell Brown’s notice of appeal to the circuit court was timely filed, and I would deny the petition for a writ of mandamus filed by Arlington Properties, Inc.

THOMPSON, P.J., concurs.

      . ‘‘[T]he failure to file a timely notice of appeal is a jurisdictional defect.” Watson v. Whittington Real Estate, LLC, 16 So.3d 802, 807 (Ala.Civ.App.2009). Therefore, "[ajlthough [Arlington] does not raise in its petition the precise jurisdictional issue we address, the ‘ “[l]ack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu." ' " Ex parte Progressive Specialty Ins. Co., 31 So.3d at 663 n. 2 (quoting Ex parte Berry, 999 So.2d 883, 888 (Ala.2008), quoting in turn Ex parte Smith, 438 So.2d 766, 768 (Ala.1983)).

      . "Rule 6(a) provides that, in computing periods of time, where the last day of the period is a Saturday, Sunday or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Rule 6(e) provides that where a party is required to do some act within a prescribed period after the service of a notice or other paper on him and the notice is served on him by mail, three days are added to the prescribed period."

        Mitchell v. State, 351 So.2d at 601 n. 1.

      . The court then ruled that Taylor had also properly notified the director of the Department of her appeal because the Unemployment Compensation Act did not require service of the appeal on the director of the Department within 10 days. 408 So.2d at 450. That last aspect of the opinion was later overruled in White v. Allen, 567 So.2d 295 (Ala.Civ.App.1989), which itself was reversed on the authority of Ex parte Doty, 564 So.2d 443 (Ala.1989), in Ex parte White, 567 So.2d 300 (Ala.1990).

      . Section 25-4-95 currently provides 30 days to file a notice of appeal to the circuit court.

      . Section 35-9A-461(b) provides that "[d]is-trict courts and circuit courts, according to their respective established jurisdictions, shall have jurisdiction over eviction actions....”


author: PER CURIAM.

text:
    Ex parte Cantrell BROWN. (In re Ex parte Arlington Properties, Inc. (In re Arlington Properties, Inc. v. Cantrell Brown)).
    1091367.
    Supreme Court of Alabama.
    Sept. 9, 2011.

      Misty S. Ledbetter, Legal Services Alabama, Inc., Anniston; and Kenneth James Lay, Legal Services Alabama, Inc., Birmingham, for petitioner.
    Joseph M. Willoughby of Day & Wil-loughby, P.C., Gadsden, for respondent.
   PER CURIAM.

Cantrell Brown petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ opinion granting a petition for a writ of mandamus filed by Arlington Properties, Inc. (“Arlington”). Ex parte Arlington Props., Inc., 83 So.3d 503 (Ala.Civ.App.2010) (per Judge Moore, with one judge concurring and one judge concurring in the result). We issued the writ; we now reverse and remand.

Facts and Procedural History

In its opinion, the Court of Civil Appeals summarized the procedural history of this case in the district court and the circuit court as follows:

“On June 24, 2009, Arlington filed in the Etowah District Court a complaint asserting an unlawful-detainer claim against Brown. After a trial, the district court rendered a judgment in favor of Arlington on July 21, 2009. In the judgment, the district court stated that Brown had until August 4, 2009, to appeal the judgment. The judgment was not entered into the State Judicial Information System until July 27, 2009, and, thus, it was deemed ‘entered’ on that date. Rule 58, Ala. R. Civ. P. On August 4, 2009, Brown filed a notice of appeal to the Etowah Circuit Court. On August 12, 2009, Arlington filed a motion to dismiss the appeal, alleging that the notice of appeal had not been timely filed. On October 7, 2009, the circuit court denied that motion. Arlington filed its petition for a writ of mandamus to this court on October 14, 2009.”

Ex parte Arlington Props., Inc., 83 So.3d at 504.

In its petition for the writ of mandamus filed in the Court of Civil Appeals, Arlington argued that Brown did not timely file a notice of appeal from the district court to the circuit court and that, therefore, the appeal should be dismissed. The Court of Civil Appeals granted Arlington’s petition and issued a writ directing the circuit court to dismiss Brown’s appeal as untimely. Specifically, two members of that court held that the application of Rule 6(a), Ala. R. Civ. P., to compute the time within which a party must file a notice of appeal pursuant to § 6-6-350, Ala.Code 1975, and § 35-9A-461(d), Ala.Code 1975, would unconstitutionally expand the jurisdiction of the circuit court to hear such appeals. Brown filed an application for a rehearing, which the Court of Civil Appeals denied.

Brown then petitioned this Court for certiorari review of the decision of the Court of Civil Appeals on the ground that the case presented a material question of first impression. See Rule 39(a)(1)(C), Ala. R.App. P. We issued the writ to consider Brown’s argument that the Court of Civil Appeals erred when it concluded that, in the context of §§ 6-6-350 and 35-9A-461(d), the phrase “seven days” means seven calendar days and that Rule 6(a), Ala. R. Civ. P., does not apply to those statutes.

Standard of Review

“Because the issue presented by this appeal concerns only questions of law involving statutory construction, our review is de novo. Whitehurst v. Baker, 959 So.2d 69 (Ala.2006). See also Taylor v. Cox, 710 So.2d 406 (Ala.1998).” Alabama Dep’t of Transp. v. Williams, 984 So.2d 1092, 1094 (Ala.2007).

Discussion

Brown argues that the Court of Civil Appeals misinterpreted §§ 6-6-350 and 35-9A-461, Ala.Code 1975, in holding that Rule 6(a), Ala. R. Civ. P., does not apply when computing the time for filing an appeal in cases involving those statutes.

Section 6-6-350, Ala.Code 1975, a part of Alabama’s Unlawful Detainer Article (§ 6-6-310 et seq., Ala.Code 1975), 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.) Section 35-9A-461, a part of Alabama’s Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975, 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 [concerning appeals from the district court generally], 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....”

(Emphasis added.) Finally, Rule 6(a), Ala. R. Civ. P., provides:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day that is not one of the aforementioned days. When 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.”

(Emphasis added.) This Court has stated:

“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979).... To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006)(emphasis omitted).

This unlawful-detainer action involves a dispute between a residential landlord and a tenant. Section 35-9A-461(a) addresses actions by residential landlords “for eviction, rent, monetary damages, or other relief relating to a tenancy.” The Alabama Comment to § 35-9A-461 confirms that “[t]he Unlawful De-tainer [Article], Ala.Code [1975], § 6-6-310 et seq.” — which includes § 6-6-350— “is amended [by this section].” Unlike the statutes at issue in two cases relied upon by the Court of Civil Appeals in this case — State v. Ladner & Co., 346 So.2d 1160, 1161 (Ala.Civ.App.1977), and Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977) — and unlike the statute at issue in a third case, Taylor v. Department of Industrial Relations, 409 So.2d 447, 449-50 (Ala.Civ.App.1982), relied upon by the dissenting opinion below, § 35-9A-461(a) specifically provides that actions by residential landlords relating to a tenancy “shall be governed by the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure except as modified by this chapter.” (Emphasis added.) Although the chapter makes modifications with respect to other Rules of Civil Procedure, it did not, at the times pertinent to this case, in any way modify, or exempt such actions from, the application of Rule 6(a). Therefore, we find the language of § 35-9A-461(a) to be dispositive as to this case. Thus, we conclude that Rule 6(a) applied to the computation of the time for filing the appeal to the circuit court from the adverse judgment in the unlawful-de-tainer action in the district court.

Applying Rule 6(a) to this case, we must conclude that Brown timely filed her notice of appeal. Consequently, the circuit court properly denied Arlington’s motion to dismiss Brown’s appeal.

Conclusion

For the above-stated reasons, the Court of Civil Appeals erred in granting Arlington’s petition for a writ of mandamus. Accordingly, we reverse that court’s judgment and remand this case with instructions that that court quash the writ it issued on March 26, 2010, in Ex parte Arlington Properties, Inc.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . The legislature amended the Uniform Residential Landlord and Tenant Act effective August 1, 2011. See Act No. 2011-700, Ala. Acts 2011. Section 35-9A-141(3) now defines "day" as a "calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open.” The 2011 amendment is not applicable to this case.


author: MOORE, Judge.

text:
    Ex parte ARLINGTON PROPERTIES, INC. (In re Arlington Properties, Inc. v. Cantrell Brown).
    2090038.
    Court of Civil Appeals of Alabama.
    Nov. 4, 2011.
    Joseph M. Willoughby, Gadsden, for petitioner.
    Misty S. Ledbetter of Legal Services Alabama, Inc., Anniston, for respondent.
   After Remand from the Alabama Supreme Court

MOORE, Judge.

On March 26, 2010, this court issued an opinion granting the petition for a writ of mandamus filed by Arlington Properties, Inc., and directing the Etowah Circuit Court to dismiss the appeal to that court filed by Cantrell Brown. See Ex parte Arlington Props., Inc., 83 So.3d 503 (Ala.Civ.App.2010). Brown then petitioned the Alabama Supreme Court for a writ of cer-tiorari to review this court’s opinion. The supreme court issued the writ, and, on September 9, 2011, it issued an opinion reversing this court’s judgment and directing this court to “quash the writ ... issued on March 26, 2010.” Ex parte Brown, 83 So.3d 512, 516 (Ala.2011). Accordingly, in compliance with the supreme court’s opinion, we hereby quash the writ of mandamus issued by this court on March 26, 2010.

WRIT QUASHED.

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