author: PER CURIAM.

text:
    Ex parte John P. COBLE. (In re John P. Coble v. Haden Development, L.L.C., d/b/a Hampton Falls, and Sealy Management Co., Inc.).
    2091087.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Sharon Doviet, Huntsville, for petitioner.
    Richard J.R. Raleigh, Jr., and Suzanne C. Dorsett of Wilmer & Lee, P.A., Huntsville, for respondents.
   PER CURIAM.

John P. Coble, the plaintiff below, appealed from an order of the Madison Circuit Court striking his demand for a jury trial. Because an order granting or denying a trial by jury is an interlocutory order properly reviewed by a petition for a writ of mandamus, see Ex parte SouthTrust Bank of Alabama, N.A., 679 So.2d 645, 647 (Ala.1996), we have elected to treat the appeal as a petition for a writ of mandamus. See Fowler v. Merkle, 564 So.2d 960, 961 (Ala.Civ.App.1989) (stating that this court has the discretion to treat an appeal from an unappealable order as a petition for a writ of mandamus).

In June 2008, Coble entered into a one-year lease agreement with Haden Development, L.L.C., d/b/a Hampton Falls (“Ha-den Development”), in which Coble leased an apartment from Haden Development. That agreement contained a jury-waiver provision that stated: “WAIVER OF JURY TRIAL. To minimize legal expenses and, to the extent allowed by law, [Coble] and [Haden Development] agree that a trial of any lawsuit based on statute!,] common law, and/or related to this Lease Contract shall be to a judge and not a jury.” (Capitalization in original.) In July 2009, Coble and Haden Development entered into a six-month lease agreement to rent the apartment. That agreement contained a jury-waiver provision containing the same language as the jury-waiver provision in the 2008 agreement.

In September 2009, Coble sued Haden Development, alleging various claims, including breach of contract and claims based on alleged statutory violations, and he demanded a jury trial. In December 2009, Coble amended his complaint to include as a defendant Sealy Management Co., Inc., as a successor in interest to Haden Development; the amended complaint also contained a demand for a jury trial. The defendants subsequently moved to strike Coble’s demand for a jury trial on the basis of the jury-waiver provision contained in the lease agreements. Following a hearing, the trial court granted the motion to strike the jury demand. Coble filed a notice of appeal to this court, which we have elected to treat as a petition for a writ of mandamus. See Ex parte SouthTrust Bank, supra, and Fowler, supra.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

Coble argues that the trial court erred in striking his demand for a jury trial. In making that argument, Coble first contends that the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975 (“the Act”), prohibits the jury-waiver provision contained in the lease agreements. Section 35-9A-163(a)(4), a part of the Act, provides that “[a] rental agreement may not provide that the tenant ... agrees to the ... limitation of any liability of the landlord arising under law....” The Act further provides that such a prohibited provision is unenforceable. § 35-9A-163(b), Ala.Code 1975. Coble argues that the jury-waiver provision is a “limitation of ... liability” prohibited under the Act. It appears that no Alabama case has addressed this issue. Our legislature adapted the Act from the Uniform Residential Landlord and Tenant Act, which was drafted in 1972 by the National Conference of Commissioners on Uniform State Laws. See generally 2 R. Powell, Powell on Property § 16.01 (2000). Section 35-9A-163(a)(4) is identical to § 1.403(a)(4) of the Uniform Residential Landlord and Tenant Act. Several states have adopted versions of that uniform act. See Table of Jurisdictions Wherein Act Has Been Adopted, preceding § 35-9A-101, Ala. Code 1975. Coble cites no authority from any other jurisdiction, and our research reveals none, construing a jury-waiver provision as a prohibited limitation of liability under a provision similar to § 35-9A-163(a)(4). The jury-waiver provision in this case is not a limitation of liability under § 35-9A-163(a)(4). Whether Co-ble’s action is tried before a jury or before a judge without a jury does not affect the defendants’ legal obligations upon which liability would be based. If the legislature had intended to prohibit a jury-waiver provision in a residential-lease agreement, it could have included within the Act a provision clearly doing so. See, e.g., Mass. Gen. Laws ch. 186, § 15F.

Next, Coble argues that the jury-waiver provision should not be enforced against him based on the standard announced by our supreme court in Gaylord Department Stores of Alabama, Inc. v. Stephens, 404 So.2d 586 (Ala.1981) (per Faulkner, J., with three Justices concurring and one Justice concurring in the result), which we will discuss below. Initially, we note that our research reveals no Alabama cases determining which party has the burden of proving whether a valid waiver of the right to a jury trial was made. However, most federal courts that have addressed the issue have concluded that the party seeking to enforce the waiver carries that burden. J. Moore, Moore's Federal Practice § 38.52[l][d] (3d ed.2010), and the cases cited therein; 9 C. Wright and A. Miller, Federal Practice and Procedure § 2321 (3d ed.2002); and RDO Fin. Servs. Co. v. Powell, 191 F.Supp.2d 811, 813-14 (N.D.Tex.2002). In Gaylord, our supreme court relied on National Equipment Rental, Ltd. v. Hendrix, 565 F.2d 255 (2d Cir.1977). Hendrix, citing Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177 (1937), observed that a presumption exists against the waiver of the right to a jury trial. Because there is a presumption against waiver, we conclude that the party seeking the enforcement of the waiver has the burden of proving that the waiver of the right to a jury trial was validly made in light of the standard established in Gay-lord.

We emphasize that our holding does not apply to arbitration clauses, which necessarily include a waiver of the right to a jury trial. In an arbitration case,

“ ‘[t]he party seeking to compel arbitration has the initial burden of proving the existence of a written contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce.’ Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). ‘ “ ‘[Ajfter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ” ’ Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)).”
I.C.E. Contractors, Inc. v. Martin & Cobey Constr. Co., 58 So.3d 723, 725 (Ala.2010). Recently our supreme court, in the context of determining whether a jury-waiver provision applies to nonsignatory agents of a corporation, addressed the distinction between a jury-waiver provision and an arbitration clause:
“[I]n In re Credit Suisse First Boston Mortgage Capital, L.L.C., 273 S.W.3d 843, 847-48 (Tex.App.2008), a Texas court applied the following analysis:
“ ‘... Arbitration agreements and jury waivers are subject to opposite presumptions:
‘““Unlike arbitration agreements, which are strongly favored under Texas law, the right to a jury trial is so strongly favored that contractual jury waivers are strictly construed and will not be lightly inferred or extended. Before a jury waiver will be enforced, such waiver must be found to be a voluntary, knowing, and intelligent act that was done with sufficient awareness of the relevant circumstances and likely consequences.”
‘[In re Credit Suisse First Boston Mortgage Capital, L.L.C., 257 S.W.3d 486,] 490 [(Tex.App.2008)] (citations omitted)....
“We agree with the reasoning of the Texas court that analogy to arbitration cases is inappropriate because of the inapplicability of the Supremacy Clause of the United States Constitution based on cases from the United States Supreme Court construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the resulting application of opposite presumptions in interpreting arbitration and jury-waiver provisions.”

Ex parte Carter, 66 So.3d 231, 238-39 (Ala.2010).

We now address Coble’s argument that he is entitled to a jury trial based on Gaylord. In Gaylord, our supreme court discussed factors to be considered in determining whether a jury-waiver provision should be enforced.. In that case, Stephens, a pharmacist, entered into an agreement with Gaylord Department Stores of Alabama, Inc., in which Stephens agreed to operate a pharmacy department in Gaylord’s store. The agreement contained a jury-waiver provision. Stephens later sued Gaylord, alleging breach of contract and conversion. The trial court denied Gaylord’s motion to strike Stephens’s jury demand, and a judgment was subsequently entered on a jury verdict. On appeal, our supreme court addressed whether the jury-waiver provision in the agreement should have been enforced:

“Article I, § 11, Constitution 1901, provides that the right of trial by jury shall remain inviolate. Moreover, Rule 38(a), [Ala. R. Civ. P.], provides that the right of trial by jury as declared by the Constitution of Alabama, or as given by statute of this State shall be preserved to the parties inviolate. While this precious right of trial by jury may be waived, was it properly waived in this particular case?
“The validity of waiver of a jury trial in a contract action has been recognized in a number of jurisdictions, including Connecticut, Massachusetts, New Jersey, New York, and Ohio. See 73 A.L.R.2d 133[2]. The Supreme Court of Florida, construing New York law, upheld the jury waiver provision in a written contract. Central Investment Associates, Inc. v. Leasing Service Corp., 362 So.2d 702 (Fla.[Dist.Ct.App.]1978). However, all of these Courts upholding jury waivers follow a general rule that since the right of jury trial is highly favored, a waiver will be strictly construed. In Edsaid Realty Corp. v. Samuels, City Ct., 92 N.Y.S.2d 897 (1949), the Court held that the waiver must be clear and explicit and leave no room for doubt about the intention of the parties. And in National Equipment Rental Ltd. v. Hendrix, 565 F.2d 255 (2d Cir.1977), the Court held a waiver of jury trial ineffective, where it was buried in the eleventh paragraph, and there appeared gross inequality in bargaining power between the parties, and it did not appear that the waiver was knowingly and intentionally made. We opine that these statements are applicable here.
“The contract between Stephens and Gaylord appears to be a New Jersey form contract with boiler plate provisions. The jury waiver provision is buried in paragraph thirty-four in a contract containing forty-six paragraphs; the equality of the bargaining power of the parties is questionable; and it does not appear that the waiver by Stephens was intelligently or knowingly made.”

Gaylord, 404 So.2d at 588.

Our supreme court first applied the test established in Gaylord in Mall, Inc. v. Robbins, 412 So.2d 1197 (Ala.1982). The court in Mall stated that the court in Gaylord had established “three factors in determining whether to enforce a contractual waiver of the right to a trial by jury: (1) whether the waiver is buried deep in a long contract; (2) whether the bargaining power of the parties is equal; and (3) whether the waiver was intentionally and knowingly made.” 412 So.2d at 1199. In Mall, the supreme court concluded that the controversy in that case was outside the scope of the waiver provision and, therefore, that the waiver provision was unenforceable. However, the Mall court also examined the facts of that case in light of the test stated in Gaylord. Regarding the first Gaylord factor, the court in Mall observed:

“The contractual waiver in the lease is in section 10.4, which is entitled ‘Waiver of Trial by Jury: Tenant Not To Counterclaim.’ Since the section is titled so as to call attention to the waiver of jury trial in the lease, the waiver is not inconspicuously buried deep in the contract.”

412 So.2d at 1199. Regarding the second Gaylord factor, the court in Mall noted that “the parties were both businessmen” and that the tenant seeking a jury trial owned six or seven other stores. Id. Thus, the court concluded that the parties did not have unequal bargaining power. Mall appears to be the only Alabama case that has applied the Gaylord test. Mall seems to suggest that, were it not for the controversy in that case being outside the scope of the jury-waiver provision, the jury-waiver provision in that case would have been enforced.

Regarding the first Gaylord factor, the facts of this case are similar to the facts in Mall. The court in Mall observed that, because the jury-waiver provision was “titled so as to call attention to” the waiver, the waiver was “not inconspicuously buried deep in the contract.” Id. In this case, the waiver provision is located in clause 33 of a 43-clause lease agreement; clause 33 is labeled “MISCELLANEOUS.” The waiver provision is a separate paragraph in that clause and is titled “WAIVER OF JURY TRIAL.” (Capitalization in original.) Similar to the provision in Mall, the jury-waiver provision in this case is titled “so as to call attention to the waiver.” Id. The clearly titled provision is easily found, and the text of the provision is in the normal print size of the lease agreement. Hence, the first Gaylord factor weighs in favor of enforcing the jury-waiver provision.

We next consider the second Gaylord factor, ie., we consider the bargaining power of the parties. The materials before us reveal little about the bargaining power of the parties. We note, however, that Coble is a practicing bankruptcy attorney, which suggests that he has acquired at least some degree of sophistication that would aid him in dealing with a landlord. The materials before us do not indicate that Coble attempted to negotiate the terms of the lease agreement or that he had to sign the lease agreement as it was originally presented. Unequal bargaining power does not exist merely because one party is a company and the other party is an individual in need of the company’s services. Collins v. Countrywide Home Loans, Inc., 680 F.Supp.2d 1287, 1295-96 (M.D.Fla.2010) (applying similar federal law regarding the contractual waiver of the right to a jury trial). We cannot say that the facts demonstrate that the parties had unequal bargaining power regarding the lease agreement.

We next address the third Gaylord factor, ie., whether the waiver was intelligently and knowingly made. We note initially that the court in Mall characterized the question whether a waiver was intelligently and knowingly made as a separate factor in determining whether to enforce a jury-waiver provision. However, Gaylord relied on federal law, which characterizes the test for determining the enforceability of a jury-waiver provision slightly differently from the Gaylord test as characterized by the court in Mall. Under federal law, a jury-waiver provision will be enforced if the waiver was made knowingly, intentionally, and voluntarily. See 8 Moore, Moore’s Federal Practice § 38.52[3][a], and the cases cited therein. Under federal law, factors such as whether the provision is buried in a contract and the bargaining power of the parties, ie., the first two Gaylord factors, are factors that would indicate whether the waiver was intelligently and knowingly made, ie., the third Gaylord factor. It appears that the third Gaylord factor may be characterized as directing the trial court to consider any factors, in addition to the first two Gaylord factors, touching on whether the waiver was intelligently and knowingly made.

In this case, the jury-waiver provision was clear and succinct, and it was labeled “WAIVER OF JURY TRIAL.” (Capitalization in original.) Coble initialed the bottom of the page on which the jury-waiver provision is contained, and that provision is less than two inches above Coble’s initials. See National Westminster Bank, U.S.A. v. Boss, 130 B.R. 656, 667 (S.D.N.Y.1991) (enforcing a jury-waiver provision when the waiver provision was set off in its own paragraph less than two inches above the signature line). Coble signed two lease agreements containing the same jury-waiver provision. Those facts, and the facts discussed above regarding the first two Gaylord factors, suggest that Co-ble intelligently and knowingly waived his right to a jury trial. We conclude that the trial court did not err in determining that Coble validly waived his right to a jury trial.

Coble also argues that, even if the jury-waiver provision is enforceable, not all of his claims are within the scope of the waiver. Because the right to a jury trial is highly favored, a jury-waiver provision will be strictly construed. Gaylord, 404 So.2d at 588. Coble contends that his claim alleging “[hjarassment by the Landlord is outside the scope of the contract and therefore outside the scope of any jury waiver clause.” Coble’s brief at 16. Coble appears to be referring to his first claim, which is titled “§ 35-9A-303, Code of Alabama, 1975 (Abuse of Access) and the Tort of Harassment.” That claim alleges, in pertinent part:

“The Defendants are in material violation of Alabama Code Section 35-9A-303.[] Management inspections (which at first were supposed to be ‘annual’) have been held on February 18, 2009; August 4, 2009 and September 11, 2009. Per the lease for these apartments, any such inspection notice was to show a ‘time,’ not a ‘date’ or a ‘part of a day.’ [Coble] complained each time. [Coble] went to great expense to have someone at the apartment two out of the three of these inspections.”

The jury-waiver provision in this case is very broad. The provision waives a jury trial “of any lawsuit based on statute[,] common law, and/or related to this Lease Contract.” In Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So.3d 1198, 1201 (Ala.2010), our supreme court explained that a jury-waiver provision applying to claims “related to” a contract has a broader scope than a jury-waiver provision applying to claims “arising from” a contract. Our supreme court stated:

“In Ex parte Cupps, [782 So.2d 772 (Ala.2000),] this Court examined the scope of a jury-waiver provision. We noted that a provision applying only to claims ‘arising from’ or ‘arising under’ a contract has a narrow scope and ‘exclude[d] claims that did not require a reference to, or a construction of, the underlying contract.’ 782 So.2d at 776. On the other hand, a provision applying to claims ‘ “arising out of or relating to” ’ a contract — such as the provision in the instant case — ‘ “has a broader application” ’ than a provision ‘ “that refers only to claims ‘arising from’ the agreement.” ’ 782 So.2d at 776 (quoting Reynolds & Reynolds Co. v. King Automobiles, Inc., 689 So.2d 1, 2-3 (Ala.1996)). Cf. Vann v. First Cmty. Credit Corp., 834 So.2d 751, 754 (Ala.2002) (noting that the phrase ‘any controversy or claim arising out of or relating to’ covers a broad range of disputes); Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (noting that ‘ “relating-to” language has been held to constitute a relatively broad arbitration provision’).”

Ex parte AIG Baker, 49 So.3d at 1201.

Coble’s first claim is based on allegations that the defendants entered his apartment more times than allowed by the lease agreements and in violation of the Act. We conclude that the jury-waiver provision, which broadly waived the right to a jury trial in any lawsuit based on a statute or related to the lease agreements, is sufficiently broad enough to apply to Coble’s first claim.

The trial court did not err in striking Coble’s demand for a jury trial. Coble waived his right to a jury trial, and the jury-waiver provision is due to be enforced. Therefore, we deny Coble’s petition for a writ of mandamus.

PETITION DENIED.

All the judges concur.

      . The right to a jury trial in civil cases in federal court is guaranteed by the Seventh Amendment to the United States Constitution. The Seventh Amendment does not apply to state courts. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 418, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). However, Alabama cases have stated that the Seventh Amendment is not materially different from Article I, § 11, of the Alabama Constitution of 1901. Eason v. Bynon, 781 So.2d 238, 241 (Ala.Civ.App.2000).

      . Among other things, § 35-9A-303, Ala.Code 1975, provides that "[a] landlord shall not abuse the right of access or use it to harass the tenant.” § 35-9A-303(c).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    J.F.M. v. C.W.B.
    2091031.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Robert H. Turner, Sr., Marion, for appellant.
   MOORE, Judge.

J.F.M. appeals from an order of the Perry Circuit Court (“the circuit court”) entered on August 6, 2009, finding him to be the father of C.V.B., a child born to C.W.B. (“the mother”), and a final judgment entered by the circuit court on March 22, 2010, ordering him to pay a portion of the child’s postsecondary educational expenses. We dismiss the appeal as being untimely filed.

The record reveals the following. On March 28, 1997, the Perry Juvenile Court (“the juvenile court”), in case number CS-97-01, entered a judgment finding J.F.M. to be the father of the child. On February 2, 2007, J.F.M. filed in the juvenile court a “motion to reopen case # CS-97-01” in which he sought to have set aside the March 28, 1997, paternity judgment, pursuant to § 26-17A-1, Ala.Code 1975; that action was assigned case number CS-97-01.01. Thereafter, on March 1, 2007, the mother filed in the juvenile court a petition seeking “post-secondary education support” for the child; that action was assigned case number CS-97-01.02.

Case Number CS-97-01.02

On April 26, 2007, the juvenile court, in case number CS-97-01.02, entered an order directing the parties and the child to appear at the Perry County courthouse on May 21, 2007, to submit to DNA testing. On May 9, 2007, J.F.M. filed an answer to the mother’s petition for postsecondary educational support in which he denied the material allegations of the petition; specifically, he denied that he was the father of the child. On May 21, 2007, J.F.M. filed a “supplemental answer and brief [and] motion to enjoin [DNA] testing” in which he asserted, among other things, that he had “filed a petition to re-open the ease to present scientific evidence that he was not the father [of the child],” that the mother had “filed a petition for post-secondary educational supports which he had] answered ... denying he was the father,” and that “[the mother] did not answer [his] petition to re-open the case and [he had] moved for a default judgment which is pending before th[e] court.” On that same date, the juvenile court entered an order directing that genetic testing be scheduled and performed by Lab Corp. After the genetic testing was completed, the juvenile court entered an order on June 22, 2007, stating, in pertinent part:

“This case was opened to consider the issues of post-secondary support and parentage. The parties submitted to DNA testing on May 21, 2007. The DNA test results have been returned to the Court with their respective findings wherein [J.F.M.] is excluded as the father of [the child]. Accordingly, this case is due to be and the same is hereby ORDERED DISMISSED.”

On July 3, 2007, the mother filed a notice of appeal to the circuit court for a trial de novo; that appeal was assigned case number CV-07-39.

Case Number CV-07-39

The circuit court initially set case number CV-07-39 for a scheduling conference on August 9, 2007; after numerous continuances, the scheduling conference was eventually held on November 8, 2007, and the case was scheduled for trial on March 17, 2008. The trial was continued numerous times, but it was eventually held on July 24, 2009, and March 16, 2010.

Following ore tenus proceedings conducted on July 24, 2009, the circuit court entered an order on August 6, 2009, stating, in part, that the matter was before the court on J.F.M.’s “Petition to Re-open the Paternity Case or to Present Scientific Evidence Excluding Him as the Father of [the child]”; the circuit court found that “the relationship between [J.F.M.] and [the child] was an open relationship and that [J.F.M.] held out [the child] as his natural child for years even in the face of genetic testing excluding him that he had knowledge of in 1991 and 1992,” and it concluded that the presumption that J.F.M. is the child’s father had not been rebutted by clear and convincing evidence. The circuit court also concluded that the testimony regarding the mother’s petition for postsecondary educational support was “insufficient upon which to rule,” and it set the matter for a status conference.

The circuit court conducted ore tenus proceedings on the mother’s petition on March 16, 2010, and, on March 22, 2010, the circuit court entered a final judgment that, among other things, granted the mother’s petition and ordered J.F.M. to pay $8,000 for “accumulated post-secondary education expense[s], and $250 per month beginning April 1, 2010, through May 1, 2011, for post-secondary education expensefs].” On April 15, 2010, J.F.M. filed a motion to vacate “[the] orders and judgments entered ... and made final on March 22, 2010”; the mother filed a response to J.F.M.’s motion to vacate on June 28, 2010. On July 12, 2010, the circuit court entered an order purporting to deny the motion to vacate. J.F.M. filed his notice of appeal to this court on July 28, 2010.

The timely filing of a notice of appeal is jurisdictional. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985). The mother’s appeal of the juvenile court’s judgment determining that J.F.M. was not the child’s father and dismissing her petition for postsecondary educational support was proceeding in the circuit court as an appeal for a trial de novo. The Rules of Juvenile Procedure apply in an appeal to the circuit court of a juvenile court’s judgment. Specifically, Rule 1(B), Ala. R. Juv. P., provides that the “[procedure shall be uniform in all juvenile courts, whether at the circuit or district court level or in the circuit court by trial de novo.” (Emphasis added.)

“Rule 4(a)(1), Ala. R.App. P., provides for a period of 14 days for the filing of a notice of appeal to this court from a judgment of the juvenile court. This 14-day period begins to run on the day on which the juvenile court’s final judgment is entered. See Gamble v. First Alabama Bank, 404 So.2d 688 (Ala.Civ.App.1981). ‘The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal.’ Rule 4(a)(3), Ala. RApp. P. See also Gamble, supra; City of Talladega v. McRae, 375 So.2d 429 (Ala.1979). However, Rule 1(B), Ala. R. Juv. P., provides that ‘[a]ll post-judgment motions ... must be filed within 14-days after entry of judgment’ (emphasis added), and the time period for taking an appeal will not be suspended if a postjudgment motion is not timely filed. See Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280, 1281 (Ala.Civ.App.2000) (‘[T]he time for appeal may be extended where a party files a timely postjudgment motion pursuant to Rule 50, 52, 55, or 59, Ala. R. Civ. P.’ (Emphasis added.)).”

D.O.L. v. J.M.P.H., 874 So.2d 560, 561-62 (Ala.Civ.App.2008).

As previously noted, the circuit court entered its final judgment on March 22, 2010. J.F.M. did not file his post-judgment motion to vacate until April 15, 2010, beyond the 14-day period allowed by Rule 1(B), Ala. R. Juv. P. Because J.F.M.’s postjudgment motion was not timely filed, it did not toll the time for taking an appeal from the March 22, 2010, judgment. See Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280, 1281 (Ala.Civ.App.2000). As a result, J.F.M.’s notice of appeal, filed on July 28, 2010, was filed more than 14 days after the entry of the circuit court’s final judgment.

Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” This court is without jurisdiction; therefore, this appeal is due to be dismissed. Asam v. City of Tuscaloosa, 585 So.2d 60 (Ala.Civ.App.1991).

APPEAL DISMISSED.

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

      . The juvenile court’s case-action-summary sheet in case number CS-97-01.01 contains the following entry: "6/22/07 Dismissed.” That entry, however, is not "signed or initialed by the judge.” See Rule 58(b), Ala. R. Civ. P. ("A written order or judgment will be sufficient if it is signed or initialed by the judge....”).


author: BRYAN, Judge.

text:
    Kristi L. HOOD v. Frank L. HOOD.
    2091016.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Mary K. Simmons, Gadsden, for appellant.
    F. Michael Haney and Elizabeth Haney Mills of Inzer, Haney & McWhorter, PA, Gadsden, for appellee.
   BRYAN, Judge.

Kristi L. Hood (“the wife”) appeals from a judgment entered by the Etowah Circuit Court (“the trial court”) that divorced her from Frank L. Hood (“the husband”).

On July 17, 2007, the husband filed a complaint for a divorce from the wife. In his complaint, he alleged that the parties had married on December 28, 1998, that they had separated in April 2007, that one child had been born of the marriage in April 2000, and that the trial court should grant him a divorce from the wife on the grounds of incompatibility of temperament, mental abuse, and physical abuse. The husband sought, among other things: (1) primary physical custody of the parties’ child; (2) an award of the parties’ residence on Hood Drive (“the marital residence”), with an obligation to pay the mortgage on it; (3) an award of the “river lot,” with an obligation to pay the mortgage on it; (4) a division of the parties’ personal property in accordance with an antenuptial agreement that the parties had signed on December 28, 1998; (5) an equitable division of the parties’ debts; (6) an award of all of his bank accounts and his individual retirement account (“IRA”); and (7) an order finding that the issue of alimony is “moot and forever waived.”

The wife subsequently filed an answer to the husband’s complaint and a counterclaim for a divorce, asserting adultery and incompatibility of temperament as grounds for the divorce. The wife requested (1) temporary and permanent custody of the parties’ child; (2) temporary and permanent child support; (3) temporary and permanent alimony; (4) temporary and permanent exclusive possession of the marital residence; (5) an order requiring the husband to pay all the parties’ marital debts; (6) an award of her attorney’s fees; (7) and any other relief to which she may be entitled. The husband answered the wife’s counterclaim for a divorce and asserted, among other things, that, pursuant to the parties’ antenuptial agreement, the wife had no claim to alimony or the marital residence.

On October 10, 2007, the husband filed a motion for a partial summary judgment, alleging that the parties had entered into an antenuptial agreement, that the wife had waived all claims to the marital residence and to alimony or support in the event the parties divorced, and that he was entitled to a judgment in his favor regarding the wife’s claims for alimony and an award of the marital residence. The wife filed a response to the husband’s partial-summary-judgment motion and an affidavit in support of her response, in which she alleged that she had signed the antenuptial agreement under duress and that the husband had not made a full disclosure of his assets. On January 3, 2008, the trial court denied the husband’s motion for a partial summary judgment.

After several continuances, the trial court, on March 13, 2009, conducted a hearing on the enforceability of the ante-nuptial agreement. The only testimony presented at this hearing was from the wife on the issue whether she signed the antenuptial agreement while under duress. The wife testified that .she had met the husband in Natchez, Mississippi, when she was working as a registered nurse. There is an indication in the record that the husband is a doctor. At that time, the wife had custody of two children from a previous marriage, and the parties began living together in the wife’s home in Natchez with her two children. The husband paid the mortgage on that residence while they lived together. After the parties became engaged, the husband moved to Gadsden, and, approximately one month before the wife and her children moved to Gadsden in the summer of 1998, the husband purchased the home on Hood Drive, i.e., the marital residence. After the wife moved with her children to live with the husband in the marital residence, she decided to make her home in Natchez available to rent.

The wife stated that the parties had never set a wedding date, but, she stated, at midnight on December 28, 1998, the husband asked her if she wanted to get married at the courthouse that day, and she agreed. The wife stated that she did not learn that the husband expected her to sign an antenuptial agreement until they were on the way to the courthouse to be married. According to the wife, the husband told her that they had to stop at his attorney’s office to sign “the marriage papers” and it was not until she was at the husband’s attorney’s office that she realized that the husband wanted her to sign an antenuptial agreement. Apparently, the wife was shocked at the request and began crying.

The wife stated that the husband’s attorney had discussed the antenuptial agreement with her, and she admitted that she had understood that in the event the parties divorced the husband “would reserve control over certain things that he had,” including the marital residence. The wife also testified that she had understood that she would not have a claim to the husband’s IRA, pension plans, and stocks that he owned before the marriage, but she also stated that she did not know what pension plans the husband owned. The wife admitted that while she was at the husband’s attorney’s office she understood that she would not have a claim to the property listed in the agreement if the parties divorced.

The wife further testified that the husband’s attorney had sent the wife and the husband to another attorney, “his good friend,” so the wife could review the agreement with a separate attorney. According to the wife, the husband was approximately 10 feet away outside an open door when she was discussing the agreement with her “independent” counsel. The wife stated that the attorney that she met with only browsed through the agreement because the parties were trying to make it to the courthouse before it closed. The wife stated that she was crying and was trying to whisper to the attorney because the husband looked mad and that she did not understand what the attorney told her. The wife testified that, initially, she refused to sign the agreement, so she and the husband left the attorney’s office and returned to their home. According to the wife, the husband told her that he would not have the nerve to get married if she did not sign the antenuptial agreement. The parties subsequently returned to the second attorney’s office, and she signed the antenuptial agreement.

The wife claimed that she did not know that the second attorney was supposed to be her attorney, and she stated that she did not understand that she had waived a right to alimony in the event the parties divorced. The wife stated that she was never able to read through the entire agreement, but she agreed that she knew that she was giving up rights by signing the agreement that she otherwise would have had if she had not signed the agreement.

According to the wife, her former husband had been threatening to take custody of their children because she was living with the husband in violation of their divorce judgment. The wife stated that the husband was aware of that fact, and the wife thought that, if she did not sign the agreement, she and the husband would not get married and there was a possibility that she would loose custody of her children. She stated that her children were ages one and three years old at the time she signed the antenuptial agreement and that she had no money and no place to live because her home in Natchez was occupied by renters.

The husband’s attorney offered the parties’ antenuptial agreement into evidence, but no other exhibits were offered or admitted during that hearing. That agreement states, in pertinent part:

“WHEREAS, the parties to this agreement contemplate entering into the marriage relation with each other, and;
“WHEREAS, [the husband], individually owns certain tangible and intangible property, a list of which is set out hereinafter in Exhibit ‘A’, the nature and extent of which has been disclosed to the [wife], and he desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of testamentary disposition, divorce or otherwise, from any claim of the [wife], that may arise by reason of their contemplated marriage, other than as set out herein:
“NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, it is agreed as follows:
“1. Both before and after the solemnization of the marriage between the parties, [the husband] shall separately retain all rights in his own property, including all interest, rents and profits which may accrue or result in any manner from increases in value, and he shall have the absolute and unrestricted right to dispose of his property, free from any claim that may be made by the [wife] by reason of their marriage, and with the same effect as if no marriage had been consummated between them, whether such disposition be made by gift, conveyance, sale, lease; by will or codicil or other testamentary means; by laws of intestacy; or otherwise. Any property, real, personal or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.
“8. [The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the provisions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had an independent and separate counsel and has been independently advised and has been given, without limitation, all information requested. Each further certifies that counsel has advised and informed him or her of the legal effects of this document.
“9. In the event of the death of [the husband] or the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to maintenance, support, or property settlements, by reason of or on account of dissolution of the marriage, or by reason of death.”

(Emphasis added.)

Exhibit A, which was a document attached to the antenuptial agreement, was labeled “Property to be Retained by [the husband], Individually, Without Any Claims by [the wife],” and it included six paragraphs identifying real and personal property, as follows:

“1. Any pension plan, including all stocks owned prior to marriage of parties, and including any IRA accounts, SEP IRA accounts or 401k accounts.
“2. A1 checking and/or savings accounts, including money market accounts individually owned by [the husband], prior to marriage of the parties.
“3. A1 jewelry owned by [the husband], including jewelry passed down to said [husband] by his parents, and/or grandparents, including his mother’s engagement ring, grandmother’s engagement ring, mother’s diamond/ruby ring, mother’s emerald ring, and father’s diamond cluster ring.
“4. Automobiles owned prior to marriage, including BMW automobile [and] Ford Explorer.
“5. Home, real estate, and furnishings located therein, located at [the marital residence].
“6. A1 personal property and belongings owned by [the husband] prior to the marriage of the parties.”

On May 5, 2009, the trial court entered an order finding that the antenuptial agreement was “voluntarily entered into by the husband and the wife for good and valuable consideration and that the agreement was fair, just and reasonable from the [wife]’s point of view so as to be valid under general principles governing ante-nuptial agreements.” The trial court further held

“that the antenuptial agreement provides in relevant part that in the event of ‘the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to, maintenance, support or property settlements, by reason of or on account of dissolution of the marriage....
“The antenuptial agreement further provides, in Exhibit A, certain specific property to be ‘retained’ by [the husband], individually, without any claims by [the wife].
“The antenuptial agreement provides that the property retained by the [husband] without any claims by the [wife] is as follows:
“[List of property identified in Exhibit A of the antenuptial agreement, set forth above.]
“It is, therefore, considered ORDERED, ADJUDGED and DECREED that the antenuptial agreement dated December 28, 1998, is valid and enforceable and the [wife] has no claim for alimony or against those items identified in Exhibit A of the antenuptial agreement as set out above.”

The wife filed a motion to alter, amend, or vacate the order finding the antenuptial agreement valid and enforceable, and, after conducting a hearing, the trial court denied that motion. A transcript of that hearing in the record indicates that the wife argued only that the antenuptial agreement was invalid because she had signed it under duress. On August 25, 2009, the trial court entered an order that stated: “The judgment dated the 5th of May, 2009, is hereby deemed to be a [flinal [o]rder from which an appeal can be taken.” The wife subsequently filed a notice of appeal, but there is no indication in the record that the wife’s appeal from the May 2009 judgment was ever before this court.

According to the case-action summary, the case was set for a final hearing on January 5, 2010; however, there is no indication in the record that a trial or a hearing was conducted on that date. On February 16, 2010, the trial court entered an order that stated:

“The court was under the impression that the parties were going to bring an order for the court’s review and consideration shortly after the January 5, 2010, hearing and the court has not been presented with same. The court respectfully requests that it be provided with same within 7 days to avoid having to set this matter for hearing again.”

The wife’s attorney, on February 25, 2010, filed a motion for leave to withdraw, allegedly at the request of the wife. After the motion to withdraw was granted, a different attorney filed a notice of appearance on behalf of the wife on March 12, 2010. The same day, the wife filed a motion for temporary custody and for a pendente lite hearing, alleging that the trial court had not entered a temporary award of custody or child support, despite the fact that the matter had been pending since July 2007. On the same day, the wife filed a motion for an order voiding the antenuptial agreement, alleging that she had been under duress when she signed the agreement, that she had not been adequately advised of the husband’s assets when she signed the agreement, that she did not have independent knowledge of the husband’s assets when she signed the agreement, and that the provisions of the agreement were conflicting and ambiguous. The trial court, on the same day, entered an order stating that the wife’s motion to void the antenuptial agreement was moot and that the

“court has already heard the facts of this case and has directed the attorney for the [husband] to draft an order. It is the understanding of the court that the decree was prepared by [the husband’s attorney] and submitted to [the wife’s former attorney] for his review and that [the wife’s former attorney] failed to follow through with same. The court awaits the final decree for the court’s consideration and review and if not received by the court within 7 days this case will be dismissed.”

On March 31, 2010, the trial court entered a judgment divorcing the parties on the grounds of incompatibility of temperament and an irretrievable breakdown of the marriage. The parties were awarded joint legal custody of their child, and the wife was awarded primary physical custody of the child, subject to the husband’s visitation rights as specifically set forth in the judgment. The husband was ordered to pay the wife child support in the amount of $250.56 a month, and the wife was required to maintain health-insurance coverage for the child. The trial court specifically incorporated the May 2009 order into the March 2010 judgment.

On April 19, 2010, the wife filed a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P. The wife alleged that no trial had taken place on January 5, 2010, that she had not entered into a settlement agreement with the husband, and that she had relevant evidence to present to the trial court related to determining the grounds for the divorce and related to issues of custody, visitation, child support, alimony, and property distribution. At the hearing on her postjudgment motion, the wife objected to the fact that the husband’s attorney had presented the trial court with a draft order when the trial court had not heard any evidence. Specifically, the wife argued that the husband had been awarded “very liberal” visitation with the child without any evidence related to the best interests of the child, and she disputed the amount of income attributed to the husband on the CS^2 Child-Support Guidelines form filed by the husband shortly before the divorce judgment was entered. The wife also argued that the antenuptial agreement was ambiguous, citing the language in the agreement that says that “[a]ny property, real, personal, or mixed acquired after the date of said marriage shall be considered joint property unless agreed to in writing....” The wife further alleged that there were property issues that had not been addressed in the judgment and that there was at least one piece of real property that was jointly owned by the parties. The wife argued that, according to the antenuptial agree-merit, the trial court would be required to consider the property the parties had acquired after their marriage for equitable distribution.

At the hearing on her postjudgment motion, the wife testified that on the date set for trial, i.e., January 5, 2010, she came to the courthouse for trial and her attorney and the husband’s attorney attempted to settle the case. She stated that the parties did not reach an agreement, that she never went inside the courtroom, that she never spoke to the trial-court judge, that she never presented any testimony, and that she did not offer any evidence. She testified that she had accumulated evidence related to her case, that she wanted the trial-court judge to hear it, and that her former attorney had told her that she was going to have to come back for another hearing to finalize the divorce.

The husband did not present any testimony, but his attorney argued that, after the trial court ruled on the validity of the antenuptial agreement, the only remaining issues were custody, visitation, and child support. He argued that custody and visitation issues were resolved on January 5, 2010, and that the parties only needed to submit income affidavits. The record reflects that the husband submitted a CS-42 Child-Support Guidelines form on March 29, 2010.

The trial court subsequently entered an order denying the wife’s postjudgment motion, and the wife timely appealed.

On appeal, the wife contends (1) that the trial court erred as a matter of law when it determined that the antenuptial agreement is valid and enforceable; (2) that, even if the antenuptial agreement is valid and enforceable, the trial court erred by denying her postjudgment motion because the trial court failed to conduct a trial on issues remaining after determining the validity of the antenuptial agreement; and (3) that the trial court’s errors in this case have rendered the March 2010 judgment nonfi-nal.

The wife argues that the trial court’s failure to divide the parties’ jointly held property, its failure to divide the parties’ marital debts, and its failure to rule on her request for an attorney’s fee renders the judgment nonfinal. We disagree. This court has held that a trial court’s failure to adjudicate a claim for attorney’s fees does not render a judgment nonfinal, see Morrison v. Morrison, 1 So.3d 1052, 1053 (Ala.Civ.App.2008), and we have also held that a trial court’s failure to specifically address marital debts or jointly owned property in a divorce judgment does not render the judgment nonfinal, see Clements v. Clements, 990 So.2d 383, 395 (Ala.Civ.App.2007).

The husband contends that the March 2010 judgment is due to be affirmed because, he says, (1) the wife failed to take any action in her appeal of the May 2009 order finding the antenuptial agreement valid and enforceable, (2) the trial court correctly concluded that the antenuptial agreement was valid and enforceable, and (3) the March 2010 judgment enforces an agreement entered into by the parties on January 5, 2010.

Initially, we note that, before the entry of the March 2010 final judgment, the wife was not bound, as the husband argues, by the trial court’s May 2009 determination that the antenuptial agreement is valid and enforceable because the May 2009 order was never properly certified by the trial court as a final, appealable judgment pursuant to Rule 54(b), Ala. R. Civ. P. See supra notes 1 and 2; see also Blythe v. Blythe, 976 So.2d 1018, 1020 (Ala.Civ.App.2007) (discussing Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 754 (Ala.2000), and Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d 1056, 1061 (Ala.2006), and the requirements pertaining to a trial court’s order purporting to certify a judgment as final pursuant to Rule 54(b)). The trial court’s May 2009 determination that the antenup-tial agreement is valid and enforceable did not become final until it was incorporated into the March 2010 final judgment. Because the wife raised issues concerning the validity and enforceability of the antenup-tial agreement in a postjudgment motion, we will consider those arguments on appeal.

The wife argues that the trial court erred by concluding that the ante-nuptial agreement is valid and enforceable because, she says, (1) her testimony indicated that she was under duress when she signed the agreement, (2) she did not have the opportunity to obtain the advice of independent counsel, and (3) the husband failed to provide full disclosure of the existence and/or value of his assets. We note that the trial court’s determination that the antenuptial agreement is valid and enforceable, insofar as that determination was made after the presentation of ore tenus evidence, is presumed correct and will be reversed only if it is unsupported by the evidence and plainly and palpably wrong. Ex parte Brown, 26 So.3d 1222, 1225 (Ala.2009) (quoting Clements, 990 So.2d at 389). Moreover, “ ‘in the absence of specific findings of fact, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ ” Id. (quoting Clements, 990 So.2d at 390).

“Alabama law has long held that ante-nuptial agreements are generally enforceable in equity, but ‘[b]ecause of the confidential relationship of the two parties, such contracts are scrutinized by the courts to determine their justice and reasonableness.’ Allison v. Stevens, 269 Ala. 288, 291, 112 So.2d 451, 453 (1959). See also Ruzic v. Ruzic, 549 So.2d 72 (Ala.1989); Ala.Code 1975, § 3(M-9 (‘The husband and wife may contract with each other, but all contracts into which they may enter are subject to the rules of law as to contracts by and between persons standing in confidential relations.’).
“In Allison, th[e Alabama Supreme] Court stated that the proponent of an antenuptial agreement has
“ ‘the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable from the [other party’s] point of view or that the agreement was freely and voluntarily entered into by the [other party] with competent independent advice and full knowledge of [the other party’s] interest in the estate and its approximate value.’
269 Ala. at 291, 112 So.2d at 452 (emphasis added).”

Id. at 1225-26.

After a review of the evidence in the record and in light of our standard of review on appeal, we conclude that the trial court could have concluded that the wife voluntarily signed the antenuptial agreement. Although the wife presented evidence indicating that she believed that she would not have had a place to live with her children if she had not signed the agreement, there was no indication that the husband had told her that she and her children would be immediately required to vacate his home if she did not sign the agreement. Moreover, there was no indication that the wife’s former husband had filed an action to modify custody based on the wife’s living arrangement with the husband. In short, the wife did not present any evidence indicating that there was a need to sign the antenuptial agreement shortly after she became aware of the agreement in order to prevent losing custody of her children.

We also conclude that the trial court could have determined that the wife had signed the agreement after receiving competent independent advice. In Ex parte Brown, supra, our supreme court affirmed a trial court’s determination that an ante-nuptial agreement was valid, despite the wife’s claim that she had not had the opportunity to meet with her attorney before she signed the agreement, because the agreement itself, which was signed by the wife, stated that the wife was acting voluntarily and under the advice of independent legal counsel. Id. at 1227. Likewise, in the present case, the wife signed the agreement that stated that she had been advised by independent counsel and that she had been informed of the legal effects of the agreement. Relying on that certification from the wife, the trial court could have concluded that the wife had received competent independent advice.

Finally, the wife contends that the ante-nuptial agreement should be unenforceable because the agreement did not provide “full disclosure” of the husband’s assets. However, “this court has required only that the party against whom the agreement is being enforced have a general knowledge, not a full knowledge, of the other’s estate.” Lemaster v. Dutton, 694 So.2d 1360, 1368 (Ala.Civ.App.1996) (citing Barnhill v. Barnhill, 386 So.2d 749, 752 (Ala.Civ.App.1980), and Woolwine v. Woolwine, 519 So.2d 1347, 1350 (Ala.Civ.App.1987)). The record indicates that the husband and the wife had dated for approximately one and a half years before they were married, and the wife does not contend that she did not have a general knowledge of the husband’s estate.

The wife, other than citing a case setting forth the husband’s burden of proof as stated in Ex parte Brown, supra, has not cited any authority to support her argument that the antenuptial agreement should not be enforced because she signed the agreement under duress, because she did not have independent legal counsel, or because the husband failed to fully disclose his assets in the antenuptial agreement. See Rule 28(a)(10), Ala. R.App. P. (requiring an appellant to cite authority in support of his or her arguments made on appeal). Because we conclude that the trial court could have determined that the wife had voluntarily signed the agreement, with independent advice, and with a general knowledge of the husband’s estate, we affirm that part of the trial court’s judgment concluding that the antenuptial agreement is valid and enforceable.

The wife also argues that the terms of the antenuptial agreement are ambiguous because, she says, provisions in the agreement are in direct conflict. Whether the parties’ antenuptial agreement is ambiguous is a question of law, which we review de novo. See Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App.2006).

“To determine whether the antenup-tial agreement is ambiguous, the trial court was required to review the agreement to determine if ‘ “the intent of the parties c[ould] be fairly and reasonably gleaned from the four corners of the document.” ’ Stacey v. Saunders, 437 So.2d 1230, 1234 (Ala.1983) (quoting Schmidt v. Ladner Constr. Co., 370 So.2d 970, 972 (Ala.1979))....
“The interpretation of a provision in an antenuptial agreement, like the interpretation of any provision in any contract, is a question of law for the trial court. Laney v. Laney, 833 So.2d 644, 646 (Ala.Civ.App.2002).”

Peden v. Peden, 972 So.2d 106, 110 (Ala.Civ.App.2007).

“An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id.”

R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000).

Furthermore, “Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities.” Judge v. Judge, 14 So.3d 162, 165 (Ala.Civ.App.2009). See also Meyer v. Meyer, 952 So.2d at 391 (discussing the difference between latent and patent ambiguities).

The wife argues only that the second paragraph of the antenuptial agreement, quoted above, is in direct conflict with the last sentence of the paragraph labeled “1.” in the antenuptial agreement. The second paragraph in the agreement states that the husband “desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of ... divorce ..., from any claim of [the wife], that may arise by reason of their contemplated marriage, other than as set out herein.” The last sentence of paragraph “1.” states that “[a]ny property, real, personal, or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.” We note that the language, “other than as set out herein,” in the second paragraph of the agreement indicates that parts of the agreement following that paragraph may conflict with the husband’s desire to keep “all property now owned or hereafter acquired ... free from any claim of [the wife].” The paragraph labeled “1.” provides that the husband shall retain “all rights to his property,” which was identified in the agreement as the property set forth in Exhibit A, but also specifically states that any property acquired after the date the parties married shall be considered joint property. Therefore, because of the proviso in the second paragraph of the agreement, set forth above, we cannot conclude that the parts of the agreement cited by the wife make the agreement ambiguous.

The wife does not argue that paragraph nine of the antenuptial agreement, which was cited by the trial court in the May 2009 order to support its conclusion that the wife did not have a right to alimony, is ambiguous. Because the wife has not argued that issue on appeal, it is waived. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (quoting Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996), citing in turn Boshell v. Keith, 418 So.2d 89 (Ala.1982)) (“ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered.’ ”). Accordingly, we affirm that part of the divorce judgment that determined that paragraph nine of the antenuptial agreement constituted a waiver of the wife’s right to alimony.

The wife argues that the trial court’s determination that she had no claim to the property listed in Exhibit A of the antenuptial agreement did not adequately identify the property that she did not have a claim to because the trial court did not conduct a hearing to allow the parties to identify property that was acquired after the marriage. We agree. As discussed above, the agreement clearly provides that any property acquired after the date the parties married shall be considered joint property. Accordingly, the trial court should have conducted a hearing so that the parties could present evidence regarding what, if any, property had been acquired after the date the parties married, and the trial court should have, after considering the entirety of the ante-nuptial agreement, determined the proper disposition of the parties’ property. Because the trial court failed to do so, the divorce judgment, insofar as it was entered without full consideration of the evidence regarding the parties’ joint property, is due to be reversed and the cause remanded with instructions to the trial court to conduct further proceedings consistent with this opinion.

We also agree with the wife that the trial court erred by failing to conduct a hearing to consider evidence related to all the remaining issues before the trial court, such as custody, -visitation, and child support. On appeal, the parties dispute the existence of an agreement that allegedly settled these issues. However, as the wife argues, there is no indication in the record that the parties entered into an agreement. We discussed similar circumstances in Willis v. Willis, 45 So.3d 347 (Ala.Civ.App.2010). In that case, the divorce judgment incorporated a “partial” settlement agreement, but the partial agreement was not set forth in the record. We stated:

“The record contains no written documentation of the parties’ partial settlement agreement, and an oral settlement agreement is valid and enforceable ‘only if it is made in open court or during a pretrial conference.’ Contractor Success Group, Inc. v. Service Thrust Org., Inc., 681 So.2d 212, 215 (Ala.Civ.App.1996). This court has explained:
“ ‘All settlement agreements entered into by attorneys and occurring at the trial-court level are governed by § 34-3-21, Ala.Code 1975. Ex parte Sims, 627 So.2d 380, 382 (Ala.1993). To be effective under § 34-3-21, an agreement must be made in writing or entered in the minutes of the court. Holmes v. Sanders, 729 So.2d 314, 316 (Ala.1999); and Ex parte Kiely, 579 So.2d 1366, 1367 (Ala.Civ.App.1991).’
“Proffitt v. Cochran, 742 So.2d 188, 189 (Ala.Civ.App.1999).”

Id. at 348.

We concluded in Willis that “[t]he judgment [was] due to be reversed because it [did] not properly document and incorporate the agreement of the parties.” Id. at 349. In the present case, it is unclear whether the parties ever reached an agreement. Regardless, we conclude that any agreement that may have been entered into by the parties in the present case is not valid and binding because there is no indication in the record that the agreement was reduced to writing or entered in the minutes of the trial court. § 34-3-21; Willis, supra.

On appeal, the husband does not dispute that the trial court did not conduct an ore tenus hearing on any issue presented in the divorce action, other than the March 2009 hearing on the validity of the ante-nuptial agreement. Because there was no hearing conducted on any pending issue other than the validity of the antenuptial agreement, without a binding settlement agreement the trial court had no basis to enter a divorce judgment determining the rights and obligations of the parties. See Willis, 45 So.3d at 349 (“The determination of the issues in dispute between the parties would have been within the trial court’s discretion if it had received any evidence on those issues.”). Accordingly, we reverse the divorce judgment, insofar as it addresses issues other than the validity and enforceability of the antenuptial agreement, and the cause is remanded with instructions to the trial court to conduct a proceeding that is consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . Although it appears that the trial court was attempting to certify the May 5, 2009, judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., the trial court's attempted certification was invalid because the trial court’s purported certification "neither cited Rule 54(b) nor used the language of Rule 54(b).” Blythe v. Blythe, 976 So.2d 1018, 1020 (Ala.Civ.App.2007) (dismissing an appeal from a nonfinal judgment after determining that the trial court had failed to enter a valid Rule 54(b) certification).

      . We note, however, that, even if the wife had pursued her appeal to this court, we would have been required to dismiss the wife’s appeal as having been taken from a nonfinal judgment because the trial court did not properly certify the May 5, 2009, judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See supra note 1, and Blythe v. Blythe, 976 So.2d 1018, 1020 (Ala.Civ.App.2007).

      . The wife submitted into evidence a copy of a warranty deed, dated March 24, 2004, that conveyed title to a piece of property in South-side to the husband and the wife jointly with a right of survivorship.

      . As noted above, the record contains a CS-42 Child-Support Guidelines form that was filled out by the husband. The wife, at the hearing on her postjudgment motion, argued that she was entitled to present evidence disputing the amount of the husband’s gross income. We agree.


author:
PER CURIAM.
      BRYAN, Judge,

text:
    Brian E. CRESSMAN, M.D. v. ALABAMA BOARD OF MEDICAL EXAMINERS.
    2090989.
    Court of Civil Appeals of Alabama.
    May 6, 2011.
    James S. Robinson, Birmingham, for appellant.
    William F. Addison, Montgomery, for appellee.
   On Rehearing Ex Mero Motu

PER CURIAM.

This court’s opinion of December 10, 2010, is withdrawn, and the following is substituted therefor.

The Alabama Board of Medical Examiners (“the Board”) ordered Brian E. Cress-man, M.D., to appear for a hearing to show cause why his Alabama Controlled Substances Certificate (“ACSC”) should not be revoked. Following the hearing, the Board issued a decision on June 21, 2010, revoking Dr. Cressman’s ACSC. On July 21, 2010, Dr. Cressman filed a notice of appeal with this court. We dismiss the appeal.

In Brunson v. Alabama State Board of Medical Examiners, 69 So.3d 913 (Ala.Civ.App.2011), this court discussed the procedure for seeking judicial review of a decision of the Board revoking an ACSC. In Brunsm, this court explained:

“Dr. Brunson appealed from th[e Board’s] ... order [revoking his ACSC] to this court, which has exclusive appellate jurisdiction pursuant to Ala.Code 1975, § 34 — 24—380(c) (as enacted in 2008). However, it appears from our examination of the record after the submission of this case for decision that Dr. Brunson failed to timely invoke this court’s appellate jurisdiction.
“Section 20-2-53(b), Ala.Code 1975, provides that a party seeking judicial review of an order revoking a controlled-substances registration may obtain such review by filing a written petition for review ‘in accordance with Section 41-22-20,’ Ala.Code 1975, a portion of the Alabama Administrative Procedure Act (‘AAPA’). Under the AAPA, a notice of appeal or review is to be filed with the rendering agency ‘within 30 days after the receipt of the notice or other service of the final decision of the agency’ or, if administrative rehearing is sought, within 30 days after the decision on the application for rehearing; in turn, an appealing party must file a petition for judicial review in the reviewing court within 30 days after filing the notice of appeal or review with the rendering agency. Ala.Code 1975, § 41-22-20(d). ‘Appeals from decisions of administrative agencies are statutory, and the time periods provided for the filing of notice of appeals and petitions must be strictly observed,’ on pain of dismissal. Eitzen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998). Further, any failure to act within the periods prescribed by the AAPA will be noted by this court ex mero motu, and the appeal dismissed, notwithstanding any failure by the parties to raise the jurisdictional defect in their briefs. See Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala.Civ.App.2004).
“Although Dr. Brunson’s appellate docketing statement indicates that he filed a ‘notice of intent to appeal’ on March 24, 2010, the appellate record transmitted by the Board to this court does not reflect the filing of any notice of appeal or review with the Board, much less the filing of such a notice within 30 days after receipt of the Board’s February 17, 2010, order. There is also no indication that Dr. Brunson filed any application for administrative rehearing with the Board or that the Board acted on such an application in a manner that might have tolled the time for filing a notice of appeal or review under § 41-22-20(d). Finally, and perhaps most saliently, Dr. Brunson did not file a petition for judicial review in this court until May 17, 2010, more than 30 days after the date upon which Dr. Brunson purportedly filed a ‘notice of intent to appeal’ with the Board. Thus, for all that the record shows, Dr. Brunson missed both the AAPA’s deadline for filing a notice of appeal or review and the AAPA’s deadline for filing a petition for judicial review.

Brunson, 69 So.3d at 914-15.

In this case, Dr. Cressman filed his notice of appeal with this court rather than with the Board. Because Dr. Cressman did not file a timely notice of appeal with the Board, he did not invoke this court’s jurisdiction, and, consequently, we must dismiss the appeal. Id.

We recognize that § 34-24-380(c), Ala. Code 1975, provides that “any action commenced for the purpose of seeking judicial review of an order or decision of the ... Board ... suspending or" revoking a[n ACSC] ... must be filed, commenced, and maintained in the Alabama Court of Civil Appeals.” In Eley v. Medical Licensure Commission of Alabama, 904 So.2d 269 (Ala.Civ.App.2003), this court construed a similar provision in § 34-24-367, Ala.Code 1975, which at that time provided that the judicial review of an administrative decision of the Medical Licensure Commission (“the Commission”) “must be filed, commenced, and maintained in the Circuit Court of Montgomery County, Alabama.” In that case, a physician, Eley, sought judicial review of the Commission’s order revoking his medical license by filing a notice of appeal with the Montgomery Circuit Court. 904 So.2d at 275. This court explained that the requirement that an appeal be “filed, commenced, and maintained” in the Montgomery Circuit Court indicated that the notice of appeal was to be filed with the Commission:

“Eley contends on appeal that the first sentence of § 41-22-20(b), [a part of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975,] providing for the institution of an appeal by the filing of a notice of appeal with the agency, is overridden by the more specific provision of § 34-24-367, Ala.Code 1975, providing for the filing in the Circuit Court of Montgomery County of any action commenced for the purpose of seeking judicial review of an administrative decision of the Commission. We consider this particular provision of § 34-24-367 as being intended to address where judicial review is to be commenced and maintained, not how it is to be commenced or maintained, particularly in light of the fact that this provision was in place at the time the Court of Civil Appeals decided Eitzen v. Medical Licensure Commission of Alabama, 709 So.2d 1239 (Ala.Civ.App.1998) [ (dismissing an appeal from an order of the Commission when the appellant failed to file a notice of appeal with the Commission) ]....”

Eley, 904 So.2d at 274 n. 2.

Thus, in order to file, commence, and maintain his appeal in this court under § 34-24-380(c), Dr. Cressman was required to file a timely notice of appeal with the Board. Brunson, Eley, and Eitzen. Because Dr. Cressman failed to do so, we must dismiss the appeal.

ON REHEARING EX MERO MOTU: OPINION OF DECEMBER 10, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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

BRYAN, J., concurs specially, with writing, which THOMPSON, P.J., joins.

BRYAN, Judge,

concurring specially.

I concur in the main opinion. Because Dr. Cressman did not file a timely notice of appeal with the Alabama Board of Medical Examiners (“the Board”), we must dismiss the appeal. I write specially to note that the provision in § 34-24-380(c), Ala. Code 1975, merely requiring an appeal from a decision of the Board to be “filed, commenced, and maintained in the Alabama Court of Civil Appeals” may be a trap for the unwary. I urge the legislature to clarify the procedure for appealing from a decision of the Board.

THOMPSON, P.J., concurs.

      "2 Although subsections (b) and (c) of § 20-2-53, which was last amended in 2002, specify that judicial review of such orders is to occur in the Montgomery Circuit Court, § 34-24-380(c), which was added pursuant to Ala. Acts 2008, Act No. 2008-397, provides that this court is the exclusive appellate venue as to those orders. To the extent that those two statutes are in direct and irreconcilable conflict concerning the proper appellate forum, § 34-24-380(c), being the later expression of legislative intent, prevails. See Ex parte Stewart, 730 So.2d 1246, 1250 (Ala.1999) (describing repeal by implication as 'an accepted legislative tool’).”

      . Section 34-24-367, as amended in 2008, now provides, in pertinent part, that "any action commenced for the purpose of seeking judicial review of the administrative decisions of the ... Commission ... must be filed, commenced, and maintained in the Alabama Court of Civil Appeals.”


author: THOMPSON, Presiding Judge. THOMAS, Judge,

text:
    Jeffery K. JARRETT v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2090709.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Kenneth J. Lay of Legal Services Alabama, Inc., Birmingham; and Rhonda Steadman Hood of Stirling & Hood, Birmingham, for appellant.
    Greggory M. Deitsch, R. Ryan Daugherty, and Joshua L. Hornaday of Sirote & Permutt, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Federal National Mortgage Association (“FNMA”) filed an action against Jeffery K. Jarrett seeking possession of certain premises occupied by Jarrett. In its complaint, FNMA alleged that its predecessor in interest had entered into a mortgage-loan contract with Jarrett, that FNMA had foreclosed on the mortgage, and that, although it had served Jarrett with a written demand for possession of the subject property, Jarrett had failed or refused to vacate the property. The record indicates that the complaint was served on Jarrett on December 7, 2009. Jarrett did not answer the complaint, and on January 27, 2010, FNMA moved for the entry of a default judgment. On January 29, 2010, the trial court granted FNMA’s motion, entered a default judgment in favor of FNMA, and issued a writ of possession in favor of FNMA.

On February 12, 2010, Jarrett filed a motion pursuant to Rule 55(c), Ala. R. Civ. P., in which he sought to set aside the default judgment. In that motion, Jarrett alleged that he believed certain facts existed that, if proven, would constitute a meritorious defense to FNMA’s claim, and he alleged that he had a mental disability that prevented him from being able to properly understand the significance of the action taken against him. The trial court summarily denied Jarrett’s Rule 55(c) motion on February 22, 2010.

On March 15, 2010, after a writ of execution had been entered in favor of FNMA, Jarrett filed an emergency motion seeking a stay of execution of the January 29, 2010, default judgment; he also moved the court to appoint a guardian ad litem to represent him. Also on March 15, 2010, Jarrett filed a motion titled “motion to alter, amend, or vacate denial of motion to set aside default judgment.” In that motion, Jarrett argued that he suffered from a mental disability and was incompetent to manage his financial obligations and legal matters. Based on those allegations, Jarrett alleged that the trial court’s January 29, 2010, default judgment was void for want of subject-matter jurisdiction; specifically, he argued that a judgment entered against an incompetent person is void. We note that the substance of a motion, rather than its title, governs how a motion is interpreted. Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996); Ex parte Johnson, 707 So.2d 251, 253 (Ala.Civ.App.1997). In this case, given the nature of the allegations in Jarrett’s March 15, 2010, motion, we interpret that motion as one seeking relief from the default judgment pursuant to Rule 60(b), Ala. R. Civ. P. See Weaver v. Weaver, 4 So.3d 1171, 1172 (Ala.Civ.App.2008) (interpreting a “motion to strike” a judgment on the basis of a want of jurisdiction as a motion made pursuant to Rule 60(b)(4), which provides for relief from a void judgment).

On April 5, 2010, while the Rule 60(b) motion was still pending before the trial court, Jarrett timely appealed the trial court’s denial of his Rule 55(c) motion. We note that the record on appeal indicates that, while Jarrett’s appeal was pending in this court, the trial court conducted an ore tenus hearing on the Rule 60(b) motion; that hearing focused on the matter of Jai'rett’s competency. The trial court denied the Rule 60(b) motion, finding that Jarrett was competent at the time FNMA’s complaint was served upon him. Jarrett did not appeal the denial of the Rule 60(b) motion; this appeal concerns only the denial of his Rule 55(c) motion to set aside the default judgment.

It is within the trial court’s discretion to grant a timely filed motion filed pursuant to Rule 55(c) seeking to set aside a default judgment. Rule 55(c), Ala. R. Civ. P. “That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits.” Zeller v. Bailey, 950 So.2d 1149, 1152 (Ala.2006).

Our supreme court set forth guidelines for a trial court to consider in balancing those interests, stating:

“[A] trial court’s broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.”

Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 605 (Ala.1988). “[0]ur Supreme Court has referred to the Kirtland analysis as a process in which the trial court is called upon to ‘balance the equities,’ 524 So.2d at 605, and has emphasized the paramount importance of affording litigants an opportunity to attain an adjudication on the merits.” Sumlin v. Sumlin, 931 So.2d 40, 48 (Ala.Civ.App.2005).

In exercising its discretion, the trial court should presume that the action should be decided on the merits, rather than by a default judgment:

“First, when exercising discretionary authority pursuant to Rule 55(c), a trial judge should start with the presumption that cases should be decided on the merits whenever practicable. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3rd Cir.1984). The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant’s right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court’s use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala.1987); Elliott v. Stephens, [399 So.2d 240 (Ala.1981) ]; Oliver v. Sawyer, 359 So.2d 368 (Ala.1978); Knight v. Davis, 356 So.2d 156 (Ala.1978). We have affirmatively acknowledged the disfavorable treatment afforded default judgments on the ground that such judgments preclude a trial on the merits. Oliver v. Sawyer, supra, at 369. We have also construed Rule 55(c) as contemplating a liberal exercise of a trial court’s discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987). Moreover, Article 1, §§ 6 and 13, Alabama Constitution of 1901, by guaranteeing the due process rights of citizens, and Article 1, § 10, by holding inviolate a person’s right to defend himself in a civil action to which he is a party, elucidates this state’s commitment to protect an individual’s right to attain an adjudication on the merits and to afford litigants an opportunity to defend. We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case •with a strong bias toward allowing the defendant to have his day in court.”

Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d at 604-05. See also Sanders v. Weaver, 583 So.2d 1326, 1328 (Ala.1991) (“Although Rule 55(c), [Ala.] R. Civ. P., vests the trial court with discretion in ruling on a Rule 55(c) motion, Article I, §§ 6, 10, and 13, of the Alabama Constitution of 1901 requires that a trial court exhibit a large and liberal discontent against adjudication of rights by default.”); Sumlin v. Sumlin, 931 So.2d at 49 (“In reviewing trial-court decisions denying relief from default judgments, we must take care not to abdicate our responsibility as an appellate court to ensure that trial courts, within the discretion afforded them, are fairly balancing the equities in such cases and preserving the ‘strong bias’ in favor of deciding cases on their merits.”).

In addition to other matters, Jarrett’s Rule 55(c) motion alleged that Jarrett was mentally disabled, that he was mentally disabled at the time of the execution of the mortgage, and that, as a result of his disability, he had not understood the effects of FNMA’s action against him or the “necessary action required of him to respond and protect himself.” In this case, the trial court denied Jarrett’s Rule 55(e) motion without conducting a hearing or indicating that it had considered the Kirtland factors. This court has reversed a trial court’s judgment denying a Rule 55(c) motion when the record fails to demonstrate that the trial court considered the factors set forth in Kirtland. CHO Real Estate Holding, Inc. v. Wyatt, 680 So.2d 372 (Ala.Civ.App.1996); White v. Westmoreland, 680 So.2d 348 (Ala.Civ.App.1996). Given the facts of this case, we reverse the judgment and remand the cause for the trial court to consider Jarrett’s motion in light of the Kirtland factors. Cobb v. Loveless, 807 So.2d 566 (Ala.Civ.App.2001); see also Thibodeau v. Thibodeau, 10 So.3d 592 (Ala.Civ.App.2008); Campbell v. Campbell, 910 So.2d 1288 (Ala.Civ.App.2005).

We note that the trial court’s ruling on Jarrett’s Rule 60(b) motion does not render the issues raised in this appeal moot. In ruling on that motion, the trial court made a finding pertaining only to Jarrett’s competency; it did not address the Kirtland factors in that ruling.

Jarrett also argues that the trial court erred in failing to appoint a guardian ad litem to represent him. However, the trial court did not rule on the motion to appoint a guardian ad litem, and, therefore, there is no adverse ruling that this court may consider upon appeal. Further, Rule 17(c), Ala. R. Civ. P., which sets forth the law with respect to the appointment of a guardian ad litem, provides, in pertinent part: “The court shall appoint a guardian ad litem ... (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the ... incompetent person.” We note that the trial court, in ruling on the Rule 60(b) motion, determined that Jarrett was not incompetent. We cannot say that Jarrett has demonstrated error with regard to this argument.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMAS, J., dissents, with writing, which MOORE, J., joins.

THOMAS, Judge,

dissenting.

I respectfully dissent from the reversal of the trial court’s judgment denying Jeffery K. Jarrett’s motion to set aside the default judgment. In his Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment, Jarrett stated that Federal National Mortgage Association had represented that it had purchased Jarrett’s property at a properly conducted foreclosure sale and that it therefore had the right to seek ejectment of Jarrett from the property. Jarrett then alleged that “[i]t is anticipated that the documents regarding this mortgage subject of this litigation will reveal that they do not properly convey the subject mortgage” and that Jarrett “believes he can prove” that the foreclosure sale was wrongful and that the foreclosing entity lacked standing. Jarrett then states in his motion that, “[i]f Federal National Mortgage Association did not have the right to possession at the time the suit was brought, then the court lacked subject matter jurisdiction to make any judgment against [Jarrett] regarding his property and the entry of default of January 29, 2010 is void.” I do not agree with the main opinion that the trial court’s denial of Jarrett’s motion violates the procedure set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988).

As our supreme court explained in Baker v. Jones, 614 So.2d 450, 451 (Ala.1993):

“To support a motion to set aside a default judgment, the defaulting party must produce evidence of a meritorious defense that indicates that the case could be decided differently if tried on the merits and thus justifies reopening the case so that justice can be done. Kirtland. A defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion and its supporting affidavits, if proven at trial, would constitute a complete defense to the claims against the movant or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury. Kirtland. The allegations set forth to establish the defense must be more than bare legal conclusions; they must counter the allegations in the complaint with specific legal grounds substantiated by a basis of credible evidence. Kiriland.”

The defaulting party in Baker had filed a motion to set aside a default judgment in which he had alleged:

‘The judgment is void on its face in that the Plaintiffs complaint is filed in the name of Sylvia Jones. The note and mortgage in question and sued upon was granted to Friday, Inc., a corporation, [and not] to Plaintiff, Sylvia Jones. Sylvia Jones is not the real party in interest nor is she the correct party and she does not own the note and mortgage.’ ”

Baker, 614 So.2d at 451. Our supreme court rejected this allegation as being insufficient under Kirtland to establish a meritorious defense. Id. The Baker court stated:

“Baker’s conclusion, if proven at trial, would comprise a complete defense to the action against him; however, he failed to submit any factual basis for his claims. The record contains no affidavits or supporting evidence to substantiate the bare legal conclusion that Sylvia Jones did not own the note and mortgage. In his pleading, Baker merely based his conclusions on the fact that Jones herself had not offered evidence to show that her corporation, Friday, Inc., had assigned the note to her; however, Baker never questioned the assignment and never raised this issue until he filed his second motion to set aside the default judgment. It is the burden of the movant, not the opposing party, to provide a ‘definite recitation of facts’ to support the movant’s conclusions of law. Kirtland. The movant must first support his own conclusions with facts before the burden shifts to the opposing party to offer evidence in rebuttal. In this case, Baker failed to provide the facts necessary to establish a meritorious defense.”

Id.

More recently, our supreme court has again reiterated the requirement that “the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors.” Carroll v. Williams, 6 So.3d 463, 467 (Ala.2008). Although the defaulting party in Carroll had also failed to establish a lack of prejudice to the defendant and a lack of his own culpable conduct, the court did state that “Carroll’s assertion that he has a meritorious defense to Williams’s claim is nothing more than a bare legal conclusion unsupported by affidavit or other evidence.” Carroll v. Williams, 6 So.3d at 468. Despite the fact that Carroll’s Rule 55(c) motion had been denied by operation of law, the Carroll court determined that Carroll’s failure to meet his initial burden under Kirtland obviated the need for the trial court to have held a hearing. Id.

Because of our supreme court’s decisions in Carroll and Baker, I cannot agree with the main opinion that the trial court’s denial of Jarrett’s motion to set aside the default judgment should be reversed. I do not think that Jarrett satisfied his initial burden under Kirtland. Because the Carroll court determined that a denial of a motion to set aside a default judgment by operation of law may be affirmed when the defaulting party fails to meet his or her initial burden under Kirtland, I would affirm the trial court’s denial of Jarrett’s motion.

MOORE, J., concurs.

      . The Rule 55(c) motion states, in part:
      "[Jarrett] has is [sic] disabled due to mentally retardation as that term is defined by [§ ] 12.05 of [sic] the Social Security Disability Evaluation. For that reason, [Jarrett] has been deemed disabled by the Social Security Administration and has been disabled at all times pertinent to this mortgage made the basis of this [action]."