author: PER CURIAM. PITTMAN, Judge,

text:
    Ex parte INTERNATIONAL PAPER COMPANY. Ex parte Chapman Forest Products, Inc. (In re Jerry Elliott v. International Paper Company et al.).
    2090352 and 2090368.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2010.

      Tara Waller Lockett and Keith S. Rivers of Carr Allison, Daphne, for petitioner International Paper Company.
    Samuel M. Ingram and Patrick L. Hays, Jr., of Carpenter, Ingram & Mosholder, LLP, Montgomery, for petitioner Chapman Forest Products, Inc.
    Max Cassady of Cassady & Cassady, P.C., Fairhope, for respondent.
   PER CURIAM.

International Paper Company (“IP”) and Chapman Forest Products, Inc. (“Chapman”), petition this court for writs of mandamus compelling the Conecuh Circuit Court (“the trial court”) to transfer the action filed against them by Jerry Elliott (“the employee”) to the Butler Circuit Court.

The employee filed a complaint against IP and Chapman (sometimes hereinafter referred to collectively as “the employers”) on August 24, 2009, seeking workers’ compensation benefits for two separate injuries he allegedly sustained to his shoulder while pushing wood through machines during his employment with IP and Chapman, respectively.

The employers filed motions and supporting affidavits seeking dismissal of the action or, alternatively, transfer of the case to Butler County. IP and Chapman both contended that venue was improper in Co-necuh County and that a transfer of the case to Butler County was mandatory; Chapman additionally sought relief on the alternative ground that the case, even if properly brought in Conecuh County, should be transferred to Butler County pursuant to the doctrine of forum non conveniens. The employee filed a response and evidentiary materials in opposition to the .employers’ motions. After a hearing, the trial court denied the employers’ motions.

IP and Chapman separately and timely sought mandamus relief in this court, pursuant to Rule 21, Ala. R.App. P.; the two petitions were consolidated for appellate review, and the employee has filed a single response to those petitions. The sole issue raised by the mandamus petitions and the supporting materials is whether venue is proper in Conecuh County under § 6 — 3—7(a)(3), Ala.Code 1975, which provides that a civil action against a corporation may be brought “[i]n the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence” (emphasis added). Based on the doctrine of “pendent venue,” i.e., “[w]hen two claims or parties are joined, the action may be brought in any county in which any one of the claims could have been brought,” see Ex parte Hendrix Health Care Ctr., 628 So.2d 725, 726 (Ala.Civ.App.1993) (citing Rule 82(c), Ala. R. Civ. P.), the pertinent question presented is whether either IP or Chapman “does business” by agent in Co-necuh County such that the order denying the employers’ motions to transfer was correct. See also Ex parte Smith Wrecker Serv., Inc., 987 So.2d 534, 536 (Ala.2007) (noting that mandamus petitioner’s contention that particular county was an improper venue for the underlying action could not “be sustained unless venue in [that c]ounty [was] improper as to both [defendants]” in that action).

“A petition for the writ of mandamus is the proper method by which to seek review of a denial of a motion for a change of venue. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). [An appellate court] reviews a petition for a writ of mandamus challenging a ruling on venue under an abuse-of-discretion standard. Id.
‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’
“Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).”

Ex parte Scott Bridge Co., 834 So.2d 79, 80-81 (Ala.2002); accord Ex parte Siemag, Inc., 53 So.3d 974, 977-78 (Ala.Civ.App.2010).

As we have noted, whether the employers did business in Conecuh County as of the time the action was instituted, which is the pertinent time for determining the propriety of venue under statutory provisions such as § 6-3-7(a)(3) that incorporate a doing-business-by-agent test, see Ex parte Charter Retreat Hosp., 538 So.2d 787, 789 (Ala.1989), was a key disputed issue. The employers, in support of their motions to dismiss or to transfer, submitted affidavits of particular corporate officials and other documents tending to show that neither IP nor Chapman did business in Conecuh County.

In response to the employers’ filings, the employee submitted documents, including securities-law filings with the United States Securities and Exchange Commission, pleadings and discovery materials from a premises-liability action brought in the trial court against IP and its lessee (a hunting club), and papers pertaining to logging agreements entered into between IP and other corporate entities. The employee contends in his response to the mandamus petitions that those filings demonstrate that IP, Chapman, or both perform in Conecuh County, with some regularity, some of the business functions for which they were created, see Scott Bridge, 834 So.2d at 81; the employers concede that that is the pertinent criterion in determining whether the county of the plaintiffs residence is indeed a proper venue under § 6-3-7(a)(3).

Angela L. Rucker, IP’s workers’ compensation coordinator, testified that IP “did not operate a business in Conecuh County,” and, although she identified no corporate connection between the two employers, she also testified that all Chapman’s agents had worked in Butler County. IP also filed a printed copy of a computerized record maintained by the Alabama Secretary of State indicating that IP’s headquarters was located in New York and that its registered agent for service of process in Alabama was located in Montgomery. According to a document entitled “Termination of Log Agreements” that was filed in the Cone-cuh Probate Court in October 2009, IP’s rights and responsibilities under the logging agreements, which were entered into in 2006 and 2007 by IP with various wood suppliers located in a number of Alabama counties (including Conecuh County), had apparently been expressly assigned and delegated by IP to Chapman as of December 31, 2007, and the employee adduced no evidence indicating that IP subsequently entered into similar agreements after that date that would be material to a venue inquiry. Further, IP’s mere ownership of real property in Conecuh County in 2007, which it leased to a third-party hunting club, is, in our view, simply an “exercise of corporate powers incidental to ... corporate business functions,” Scott Bridge, 834 So.2d at 81, especially in light of the statement in IP’s securities-law filing (attached to the employee’s response to the mandamus petition) that IP’s “ordinary course of business” involved entering into purchase obligations as to components, such as “certain pulpwood, wood chips, raw materials, energy and services,” used to prepare finished products. Thus, we conclude that the employee failed to prove that, at the time the employee’s action was filed, IP was doing business by agent in Conecuh County such that venue was proper there.

Craig Payne, the former president of Chapman, testified in his November 2009 affidavit that Chapman no longer existed as a corporate entity, that Chapman had been located in Butler County and had “never done business by agent or otherwise in Conecuh County,” and that the employee’s injuries, if any, that had occurred in the scope of his employment with Chapman had occurred in Butler County. The affidavits submitted by Payne and Rucker tend to show that Chapman did not regularly do business by agent in Co-necuh County at the time of the filing of the complaint. Therefore, the burden shifted to the employee to prove that Chapman did, in fact, do business by agent in Conecuh County. Ex Parte Silver Chiropractic Group, Inc., 975 So.2d 922, 926 (Ala.2007). In order to prove that Chapman was doing business by agent in Cone-cuh County, the burden was on the employee to show that Chapman regularly conducted some of its core corporate functions in Conecuh County in and around August 24, 2009. Ex parte Greenetrack, Inc., 25 So.3d 449 (Ala.2009). Assuming that the purchase and cutting of timber was part of Chapman’s core corporate functions, see Scott Bridge, 834 So.2d at 80-81, to discharge his burden the employee would have to show that Chapman was regularly performing those functions in Conecuh County.

According to the filings submitted by the employee, Chapman, as of January 1, 2008, assumed all the rights and duties inuring to IP under various logging agreements. The logging agreements themselves do not appear in the record, but the “termination” document discussed earlier in this opinion indicates that they were entered into by IP with third parties in 2007 and that they evidently obligated those third-party entities (1) to provide a specified volume of timber products to Chapman and (2) to “make available” cutting rights to certain land. The record indicates that the “termination” document was filed in the probate court of three counties — Conecuh County, Butler County, and Covington County — implying that the foregoing obligations applied to lands situated in those counties. To fulfill the first obligation, the third parties could supply and sell logs and other wood products to Chapman from any of the three counties, not just from Conecuh County. The wording of the “termination” document does not specify that any portion of the timber products must come from Conecuh County, only that they could. To fulfill the second obligation, the third parties only had to grant Chapman the right to cut timber on lands located in the three counties. The agreements apparently did not require Chapman to actually exercise those rights in Conecuh County.

In Scott Bridge, the Alabama Supreme Court determined that venue was proper in Chambers County because Scott Bridge had purchased from suppliers in that county a significant number of bridge parts that were used in Scott Bridge’s business of bridge building and because those purchases were sufficient to constitute “doing business” in Chambers County. 834 So.2d at 82. Unlike Scott Bridge, however, the record in the present case contains no evidence indicating that Chapman actually exercised its rights to cut timber in Cone-cuh County. From all that appears in the record, all the timber supplied to Chapman pursuant to the log agreements came from Butler County and Covington County. We conclude, therefore, that the employee did not present any evidence indicating that Chapman had ever bought timber that had been cut from land situated in Conecuh County or had ever cut timber in Conecuh County, much less that Chapman regularly did so in the relatively brief time that it held the log agreements before the employee filed his complaint. At best, the employee showed only that Chapman held the rights to purchase timber products and to cut timber from land situated in Cone-cuh County.

As such, we conclude that the trial court could not have inferred from the language of the “termination” document that, just because Chapman had certain rights to timber located in Conecuh County, it had regularly exercised those rights in the little over a year and a half that Chapman was a party to the log agreements. In light of Payne’s affidavit, without the necessary evidence showing Chapman’s actual business practices in Conecuh County, the employee has failed to sustain his burden of proof. As such, venue in Conecuh County is improper under § 6-3-7(a)(3).

Based upon the foregoing facts and authorities, the employers have demonstrated that the trial court erred in not transferring the ease; accordingly, the petitions are granted.

2090352 — PETITION GRANTED; WRIT ISSUED.

2090368 — PETITION GRANTED; WRIT ISSUED.

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

PITTMAN, J., dissents, with writing.

PITTMAN, Judge,

dissenting.

I respectfully dissent. In this case, under our law, the burden of proving improper venue is on the petitioners, and a petition for a writ of mandamus should not be granted unless there is a clear showing of error on the part of the trial judge. See Ex parte Scott Bridge Co., 834 So.2d 79, 80-81 (Ala.2002). The termination-of-log-agreements document states that various third-party entities had agreed to supply and sell to IP (and later Chapman) “logs and other wood products for use by IP [and later Chapman] at certain of its saw mills and wood product facilities,” including the Butler County facility. Further, the memorandum of the log-supply agreement was “recorded in every county where timberlands are situated which are subject to the Log Agreements ” (emphasis added). The inference that can properly be drawn, and the one that we should accept in reviewing the petitions for the writ of mandamus, is that there would have been no need to record the log-agreement memorandum in Conecuh County if IP (and later Chapman) was not to be supplied any logs that came from Conecuh County under the agreements originally entered into by IP.

      . We note that Rule 20(a), Ala. R. Civ. P., allows for joinder of claims against defendants only if the right to relief claimed arises out of the same transaction, occurrence, or series of transactions and occurrences. Although the employee’s election to bring claims arising from two separate injuries, suffered in the course of two separate employments, in the same action might well have presented a question of misjoinder, neither IP nor Chapman has raised misjoinder or asserted the propriety of severance in this action.

      . Venue of actions brought under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., is the same as that applicable in tort actions generally. See Ex parte Cavalier Home Builders, L.L.C., 920 So.2d 1105, 1106 n. 1 (Ala.Civ.App.2005).

      . We note that the employee filed an affidavit clearly demonstrating that he did, in fact, reside in Conecuh County at the time of the accrual of the causes of action, thus demonstrating that the threshold residency condition of § 6 — 3—7(a)(3) was met. We further note that, although Chapman’s venue motion averred that Butler County was a more convenient venue than Conecuh County so as to warrant transfer under the doctrine of forum non conveniens under Ala.Code 1975, § 6-3-21.1, the employers have not relied upon § 6-3-21.1 in seeking mandamus relief.


source: Caselaw Access Project

author: MAIN, Justice. MURDOCK, Justice SHAW, Justice

license: Public Domain

text:
    Ex parte Jerry ELLIOTT. (In re Ex parte International Paper Company. (In re Jerry Elliott v. International Paper Company et al.)). Ex parte Jerry Elliott. (In re Ex parte Chapman Forest Products, Inc. (In re Jerry Elliott v. International Paper Company et al.)).
    1100479 and 1100497.
    Supreme Court of Alabama.
    Aug. 19, 2011.

      Max Cassady of Cassady & Cassady, P.C., Fairhope, for petitioner.
    Joseph H. Driver and Tara W. Lockett of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for respondent International Paper Company.
    Samuel M. Ingram of Carpenter, Ingram & Mosholder, LLP, Montgomery, for respondent Chapman Forest Products, Inc.
   MAIN, Justice.

Jerry Elliott, the plaintiff in an action pending in the Conecuh Circuit Court seeking worker’s compensation benefits, petitions this Court for writs of mandamus directing the Court of Civil Appeals to quash the writs of mandamus that court issued to the Conecuh Circuit Court in Ex parte International Paper Co., 80 So.3d 903 (Ala.Civ.App.2010). Those writs directed the Conecuh Circuit Court to transfer the underlying action to the Butler Circuit Court. We grant Elliott’s petitions and issue the writs.

I. Factual Background and Procedural History

International Paper Company (“IP”), or Chapman Forest Products, Inc. (“Chapman”), owned and operated a plywood-manufacturing plant in Butler County at all times material to this action. On November 3, 2006, IP executed an exclusive 20-year pulpwood-support agreement and an exclusive 10-year log-supply agreement with two timber companies pursuant to which those companies were to supply IP’s plywood plant with timber harvested in Conecuh County, which is adjacent to Butler County. On March 31, 2007, IP executed an exclusive log-supply agreement with four timber companies to supply its plant with timber harvested in Conecuh County. The agreements were recorded in the Conecuh Probate Court. On December 31, 2007, IP assigned all three of its agreements for the supply of timber to Chapman. Chapman began operating the Butler County plant in January 2008. On December 28, 2009, Chapman closed the plywood-manufacturing plant and recorded documents in the Conecuh Probate Court terminating the pulpwood-support agreement and the log-supply agreements IP had assigned to it.

Elliott has lived in Conecuh County for over 15 years and for 21 years worked as a machine operator at the plywood-manufacturing plant owned by IP and then Chapman. In December 2007, he allegedly sustained an injury to his left shoulder while pushing wood through a machine during the course of his employment with IP. In May 2008, he allegedly sustained a similar injury to his right shoulder during the course of his employment with Chapman. On August 24, 2009, Elliott filed an action in the Conecuh Circuit Court seeking worker’s compensation benefits for his shoulder injuries, both of which occurred at the plywood-manufacturing plant located in Butler County.

IP and Chapman filed motions to dismiss Elliott’s action or, in the alternative, to transfer the case to Butler County. Both IP and Chapman contended that venue was improper in Conecuh County but proper in Butler County. Elliott opposed those motions. After a hearing, the trial court denied the motions to dismiss or to transfer. IP and Chapman each filed a petition for a writ of mandamus in the Court of Civil Appeals, seeking review of the trial court’s order denying their motions to dismiss or to transfer. The Court of Civil Appeals granted the petitions and directed the trial court to transfer this action to Butler County.

II. Standard of Review

“This Court reviews de novo the issuance of a writ of mandamus by the Court of Civil Appeals. Rule 21(e), Ala. R.App. P. Review of a writ of mandamus issued by the Court of Civil Appeals is properly sought through a petition for the writ of mandamus to this Court. Rule 21(e), Ala. R.App. P. ‘ “ ‘Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Sears, Roebuck & Co., 895 So.2d 265[, 268] (Ala.2004) (quoting Ex parte Mardis, 628 So.2d 605, 606 (Ala.1993) (quoting in turn Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala.1990))). ‘The petitioner bears the burden of proving each of these elements before the writ will issue.’ Ex parte Glover, 801 So.2d 1, 6 (Ala.2001) (citing Ex parte Consolidated Publ’g Co., 601 So.2d 423 (Ala.1992)).”

Ex parte Vance, 900 So.2d 394, 397 (Ala.2004).

“The proper method for obtaining review of a denial of a motion for a change of venue is to petition for the writ of mandamus.” Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). Moreover, the petitioner has the burden of proving that venue is improper, and “on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.” Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).

III. Analysis

IP and Chapman argue that this case should be transferred to Butler County because, they say, § 6-3-7, Ala.Code 1975, states that, as to a foreign or domestic corporation, venue is proper:

“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred ...; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

The parties do not contest that the principal place of business of both IP and Chapman was, at the time material to this case, in Butler County and that Elliott’s injuries occurred in Butler County. Elliott lives in Conecuh County, and he argues that venue in Conecuh County is proper under subdivision (3) because, he argues, IP and Chambers did business by agent in Cone-cuh County at the time he filed his action in that they had exclusive supply agreements pursuant to which they purchased timber from landowners in Conecuh County. Ex parte Charter Retreat Hosp., 538 So.2d 787, 789 (Ala.1989) (the pertinent inquiry for determining whether venue is proper under § 6-3-7(a)(3) is whether a corporation did business in the county at the time the action was instituted). IP and Chapman argue that neither of them did business by agent in Conecuh County at the pertinent time and that, therefore, the only proper venue for this action is Butler County. Rule 82(c), Ala. R. Civ. P., provides that when more than one claim or party has been joined in an action, “the suit may be brought in any county in which any one of the claims could properly have been brought.” If either IP or Chapman did business by agent in Conecuh County, then venue is proper there. See Ex parte Smith Wrecker Serv., Inc., 987 So.2d 534, 536 (Ala.2007) (argument in case involving two defendants that venue is improper in a certain county is not well taken unless venue in that county is improper as to both defendants).

As the parties requesting a transfer of the case, IP and Chapman bear the burden of proving that venue in Conecuh County is improper. If the activity in Conecuh County by either of them is sufficient to qualify as “doing business by agent” in that county under § 6 — 3—7(a)(3), then venue is proper in Conecuh County, and the Court of Civil Appeals should not have issued the writs of mandamus directing a transfer of the case to Butler County. If that activity is not sufficient, however, the Court of Civil Appeals properly issued the writs of mandamus directing the trial court to transfer the case to Butler County. Elliott maintains that he submitted proof that both IP and Chapman were doing business in Conecuh County at all pertinent times and therefore were subject to venue there, even though proof as to one defendant alone is sufficient to establish that venue is proper in Conecuh County.

To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982). A corporation does business in a county for purposes of § 6-3-7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cnty., N.A., 619 So.2d 1356, 1358 (Ala.1993). However, this Court has considered extraneous relationships insufficient to constitute “doing business.” For example, in Ex parte Parsons & Whittemore Alabama Pine Construction Corp., 658 So.2d 414 (Ala.1995), and Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984), this Court held that for a construction company and real-estate financing company, respectively, retaining the services of an attorney in a county on a case-by-case basis did not constitute doing business in that county. Hiring an attorney was tangential to the fulfillment of their primary business functions. IP’s and Chapman’s primary business function of operating a plywood-manufacturing plant, however, depends on obtaining timber from suppliers with whom it has exclusive long-term contracts.

The Court of Civil Appeals identified evidence before the trial court indicating that IP’s “ ‘ordinary course of business’ involved entering into purchase obligations as to components, such as ‘certain pulpwood, wood chips, raw materials, energy and services,’ used to prepare finished products.” 80 So.3d at 906-07. That court also identified evidence indicating that Chapman undertook as a core corporate function “the purchase and cutting of timber.” 80 So.3d at 907. As to evidence submitted by Elliott, the Court of Civil Appeals stated:

“According to the filings submitted by [Elliott], Chapman, as of January 1, 2008, assumed all the rights and duties inuring to IP under various logging agreements. The logging agreements themselves do not appear in the record, but the ‘termination’ document ... indicates that they were entered into by IP with third parties in [2006 and] 2007 and that they evidently obligated those third-party entities (1) to provide a specified volume of timber products to Chapman and (2) to ‘make available’ cutting rights to certain land. The record indicates that the ‘termination’ document was filed in the probate court of three counties — Conecuh County, Butler County, and Covington County — implying that the foregoing obligations applied to lands situated in those counties .... The wording of the ‘termination’ document does not specify that any portion of the timber products must come from Conecuh County, only that they could.... ”

80 So.3d at 907. The Court of Civil Appeals drew an inference that, “from all that appears in the record, all the timber supplied to Chapman pursuant to the log agreements came from Butler County and Covington County,” and it concluded that venue was improper in Conecuh County because neither IP nor Chapman was doing business there at the time Elliott filed his action. 80 So.3d at 907.

Judge Pittman disagreed. In his dissent, he states:

“The termination-of-log-agreements document states that various third-party entities had agreed to supply and sell to IP (and later Chapman) ‘logs and other wood products for use by IP [and later Chapman] at certain of its saw mills and wood product facilities,’ including the Butler County facility. Further, the memorandum of the log-supply agreement was ‘recorded in every county where timberlands are situated which are subject to the Log Agreements ’ (emphasis added). The inference that can properly be drawn, and the one that we should accept in reviewing the petitions for the writ of mandamus, is that there would have been no need to record the log-agreement memorandum in Conecuh County if IP (and later Chapman) was not to be supplied any logs that came from Conecuh County under the agreements originally entered into by IP.”

80 So.3d at 908 (Pittman, J., dissenting).

Elliott contends that the Court of Civil Appeals’ inference that no timber from Conecuh County had actually been cut under the agreements was speculative. He argues that the trial court correctly found, and Judge Pittman, in his dissent, correctly reasoned, that the filing of long-term timber agreements by IP and Chapman in the Conecuh Probate Court constituted “doing business” in Conecuh County and that that finding should have ended the inquiry.

According to the documents submitted by Elliott, both IP and Chapman secured exclusive timber-harvesting agreements for Conecuh County timber during the time Elliott was employed by them. The primary purpose of the plywood-manufacturing plant operated by IP and then Chapman was to produce a plywood product made from a wood supply, and the documents recorded by IP in the Conecuh Probate Court to secure the 10- and 20-year exclusive-supply agreements is indicative of doing business in Conecuh County. An exclusive right to buy timber from landowners in order to have an adequate supply to make plywood for 10 and 20 years is clearly part of the “business function” of making wood products and one that would be exercised with “some regularity.” IP’s suggestion that such long-term contracts constitute an “isolated transaction” ignores the business reality that a 10- and 20-year exclusive right to timber harvested in Conecuh County establishes that all other companies are eliminated from harvesting timber — i.e., doing business — on that particular Conecuh County land.

This case is analogous to Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002). In Scott Bridge, a former employee who lived in Chambers County filed a retaliatory-discharge action in Chambers County against Scott Bridge, a bridge-building company headquartered in Lee County. Scott Bridge moved to dismiss or, in the alternative, to transfer the case to Lee County, claiming that venue in Chambers County was improper because it did not do business in Chambers County in that it had never constructed a bridge there. The evidence showed that Scott Bridge had purchased from vendors in Chambers County in excess of $50,000 worth of supplies necessary for building bridges; this Court held that that constituted doing business in Chambers County. Based on this Court’s reasoning in Scott Bridge, we conclude that, because the timber-supply agreements gave IP and Chapman the exclusive rights to timber on land in Conecuh County, because the agreements were recorded in the Conecuh Probate Court, and because the purpose of the agreements was to fulfill IP’s and Chapman’s principal corporate function of manufacturing plywood products, IP and Chapman were doing business in Conecuh County.

In order to be entitled to the writs of mandamus issued by the Court of Civil Appeals, IP and Chapman had the burden of showing that they had a clear legal right to the relief they requested. A writ of mandamus should not have been granted unless they made a clear showing of error on the part of the trial court. Ex parte Greenetrack, Inc., 25 So.3d 449 (Ala.2009). They did not do so. The trial court correctly denied their motions to transfer this case to Butler County; therefore, the Court of Civil Appeals should not have issued the writs directing that transfer.

IV. Conclusion

Elliott’s petitions for the writ of mandamus are granted; the Court of Civil Appeals is directed to quash the writs of mandamus it issued on December 30, 2010, in Ex parte International Paper Co., 80 So.3d 903, requiring the Conecuh Circuit Court to transfer the case to Butler County-

1100479 — PETITION GRANTED; WRIT ISSUED.

1100497 — PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.

WOODALL, J., concurs in the result.

BOLIN, MURDOCK, and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

In the present case, International Paper Company (“IP”), entered into two contracts with other parties pursuant to which those parties were to supply raw material, i.e., harvested timber, needed by IP for the production by IP of plywood at its plywood-manufacturing plant in Butler County. The materials before us indicate that IP’s agents entered into these contracts in various counties other than Co-necuh County, and there is no evidence indicating that IP and Chapman Forest Products, Inc. — the respondents here — actually ever received any timber harvested in Conecuh County pursuant to these agreements, much less, I would add, that IP itself went onto any lands in Conecuh County and harvested any timber. Furthermore, for all that appears from the materials before us, which do not include the contracts themselves, these contracts contemplated that timber might be harvested by other parties and delivered to IP at its plant in Butler County.

Consistent with my discussion of Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), and other cases in my dissenting opinion in Ex parte Greenetrack, Inc., 25 So.3d 449 (Ala.2009), I respectfully dissent. As I wrote in that case:

“In Ex parte Scott Bridge Co., [834 So.2d 79 (Ala.2002),] the sale and purchase of supplies in Chambers County appear to me to have been activities by which the sellers of those supplies did their business. I question whether the fact that Scott Bridge was the purchaser in those transactions meant that it was ‘do[ing] business by agent in [Chambers County]’ within the meaning of § 6-3-7(a)(3), Ala.Code 1975, intended by the legislature. Specifically, I question whether Scott Bridge was doing its business by making the purchases it made.
“Meaningful authority exists for drawing the foregoing distinction. For example, in Frees v. Southern Michigan Cold Storage Co., 43 Mich.App. 756, 757, 204 N.W.2d 782, 783 (1972), the court explained: ‘[T]he defendant’s business is that of storing fruits and vegetables. The farmers and processors bring their fruits and vegetables to defendant’s warehouse in Hart, Oceana County for storage. Defendant’s contacts with Muskegon County are limited to the purchasing of equipment and material for the maintenance of its refrigeration equipment,’ except for one customer that the court noted actually brought its produce to Oceana County for storage. (Emphasis added.) Under these facts, the court held that the defendant ‘was not doing business in Muskegon County by purchasing equipment and materials in Muskegon County to maintain its refrigeration equipment.’ 43 Mich.App. at 758, 204 N.W.2d at 783-84.

25 So.3d at 458 (Murdock, J., dissenting).

Additional authority—namely the decisions of this Court in Farmers’ & Ginners’ Cotton Oil Co. v. Baccus, 207 Ala. 75, 92 So. 4 (1921), and in the various cases discussed therein—though not referenced in my dissent in Greentrack, is also instructive. By way of example in Farmers’ itself, the Court concluded:

“The purchase of cotton seed by the defendant corporation was of course within its corporate powers, but it was an adjunct, or merely a necessary incident to its business, and not in the exercise of functions for which the corporation was created. It was incorporated for the purpose of manufacturing cotton seed into oil and other products for the market. None of this was done in Marion county, nor were any of the products sold by agents therein. It merely purchased direct from the owner, and also through witness Perry, who resided in that county, the raw material, the cotton seed, for the purpose of manufacturing it into cotton seed products. This was a preliminary step, but, as previously stated, a necessary incident to its business, but not an exercise of its corporate functions within the meaning of the foregoing statutory provision.”

207 Ala. at 77, 92 So. at 5 (emphasis added).

To the foregoing I would add the following thought: In Greenetrack this Court held that a corporation that engaged in the active conduct of operating a bus on a regular basis in a county neighboring the county in which it did business to transport residents of the neighboring county to its primary business facility so that they could serve as customers of that facility was not doing business in that neighboring county. 25 So.3d at 452-55. If such active conduct does not constitute doing business in a neighboring county, I question how the relatively passive conduct of merely entering into timber-supply contracts— contracts actually executed outside Cone-cuh County—constitutes the doing of business by IP in Conecuh County.

Based on the foregoing, I respectfully dissent.

SHAW, Justice

(dissenting).

I respectfully dissent. Venue in this case is determined by Ala.Code 1975, § 6-3-7(a)(3), which states that, as to a foreign or domestic corporation, venue is proper:

“(3) In the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence.... ”

In explaining this section, we have stated:

“This Court has stated that ‘ “[a] corporation ‘does business’ in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created.” ’ Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999) (quoting Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d 1356, 1358 (Ala.1993)). Furthermore, ‘isolated transactions’ in the past are inconclusive in determining venue. Ex parte Jim Skinner Ford, Inc., 435 So.2d 1235, 1236 (Ala.1983).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1093 (Ala.2002).

I believe that the transaction at issue in this case — the execution of the timber-purchase and log agreements for the rights to timber on property located in Conecuh County — was simply an isolated transaction. Nothing before us indicates that International Paper Company and Chapman Forest Products, Inc., the respondents here, executed those transactions in Conecuh County “with some regularity.” Further, there is no evidence indicating that the respondents used timber harvested in Conecuh County pursuant to these agreements. Additionally, it is unclear whether the respondents’ “agents” did business in Conecuh County; specifically, copies of various agreements and documents in the materials before us indicate that the respondents’ agents executed those agreements and documents in other counties, including Shelby County and Jefferson County, as well as out-of-state locations.

I have previously expressed concern regarding this Court’s rationale in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), upon which the main opinion relies:

“I question the conclusion reached in Scott Bridge that a corporation’s mere purchase of materials necessary to fulfill a principal corporate function actually equates, for purposes of § 6-3-7(a)(3), to the performance of the principal corporate function for which the corporation was created; however, this Court is not asked in the instant case to overrule Scott Bridge.”

Ex parte Greenetrack, Inc., 25 So.3d 449, 456 n. 4 (Ala.2009) (Shaw, J., concurring specially). Jerry Elliott, however, does not rely on or cite Scott Bridge, and, in my view, it is not dispositive of this case, so I see no need to address it.

BOLIN, J., concurs.

      . Chapman also contended in the trial court that even if venue was proper in Conecuh County, the case should be transferred to Butler County pursuant to the doctrine of forum non conveniens, § 6-3-21.1, Ala.Code 1975. However, Chapman did not rely upon the doctrine of forum non conveniens in seeking mandamus relief in the Court of Civil Appeals, and it does not do so in this Court.

      . Although these contracts were recorded in the probate records of Butler, Conecuh, and Covington Counties, this fact alone would allow one to infer only that timber might be supplied from any one of these counties, not that it was necessarily supplied from any one of them.

      “ 6 In Hartung v. Central Illinois Public Service Co., 110 Ill.App.3d 816, 66 Ill.Dec. 493, 443 N.E.2d 16 (1982), the court reasoned:
      “ ‘The evidence further revealed that defendant consummated commercial transactions with 10 different Madison County residents which totaled nearly $4.4 million in 1979[, including purchases of approximately $1 million of parts and supplies from numerous vendors]....
      “ ‘Plaintiff maintained that these commercial transactions contributed directly to defendant’s production and marketing of its principal consumer product, electricity. Plaintiff further contends that these transactions were done systematically and continuously thus establishing that defendant was “doing business” within Madison County within the meaning of the venue statute.

      “ ‘ . [I]n order to establish that a defendant is doing business within a county for purposes of venue, quantitatively more business activity within the county must be demonstrated than where the question is whether the defendant has transacted any business within the State for purposes of service of process pursuant to section 17. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought.” [Baltimore & Ohio R.R. v. Mosele,] 67 Ill.2d 321, 329-330[, 10 Ill.Dec. 602, 606], 368 N.E.2d 88, 92 [ (1977) ].
      “ ‘... [W]e believe the evidence does not support the trial court’s finding of venue in Madison County in the present case. Defendant’s business is the production and marketing of electricity which is not carried on by defendant in Madison County.’
      “110 Ill.App.3d at 818-20, 66 Ill.Dec. at 495-96, 443 N.E.2d at 17-19 (emphasis added). Similarly, in Gardner v. International Harvester Co., 113 Ill.2d 535, 541, 101 Ill.Dec. 842, 845, 499 N.E.2d 430, 433 (1986), the Illinois Supreme Court rejected an argument that purchases of materials by a manufacturer constituted doing business for venue purposes: ‘Nor do we believe that Harvester’s purchases from St. Clair County suppliers show that the company is engaged in business there. Harvester buys the materials for use in its business of designing, manufacturing, and marketing tractors, trucks, and other machines, and the purchases are but a necessary incident of that.’ See also Saturn Sys., Inc. v. Saturn Corp., 659 F.Supp. 865 (D.Minn.1987); Westinghouse Electric Corp. v. Superior Court, 17 Cal.3d 259, 270, 551 P.2d 847, 855, 131 Cal.Rptr. 231, 239 (1976) (also noting that ‘[t]he change of venue issue is directed at completely different policy considerations’ and that ‘[i]t is inappropriate to apply a “minimum contacts” test to determine whether defendants are doing business’ in a given county for venue purposes).”

      . If this was a case in which the evidence indicated that IP or Chapman itself actively engaged in the harvesting of timber from Co-necuh County on a regular basis, my conclusion might be different.


author: PER CURIAM.

text:
    Ex parte INTERNATIONAL PAPER COMPANY. Ex parte Chapman Forest Products, Inc. (In re Jerry Elliott v. International Paper Company et al.).
    2090352 and 2090368.
    Court of Civil Appeals of Alabama.
    Sept. 30, 2011.
    Tara Waller Lockett and Keith S. Rivers of Carr Allison, Daphne, for petitioner International Paper Company.
    Samuel M. Ingram and Patrick L. Hays, Jr., of Carpenter, Ingram & Mosholder, LLP, Montgomery, for petitioner Chapman Forest Products, Inc.
    Max Cassady of Cassady & Cassady, P.C., Fairhope, for respondent.
   After Issuance of Writs of Mandamus by Alabama Supreme Court

PER CURIAM.

On December 30, 2010, this court issued an opinion in case nos. 2090352 and 2090368 granting the petitions for a writ of mandamus filed by International Paper Company and Chapman Forest Products, Inc., and directing the Conecuh Circuit Court to transfer the underlying workers’ compensation action filed by Jerry Elliott to the Butler Circuit Court. See Ex parte International Paper Co., 80 So.3d 903 (Ala.Civ.App.2010). Elliott then petitioned the Alabama Supreme Court for writs of mandamus directing this court to quash the writs of mandamus issued by this court on December 30, 2010. The supreme court, on August 19, 2011, granted Elliott’s petitions and directed this court to “quash the writs of mandamus it issued on December 30, 2010, ... requiring the Conecuh Circuit Court to transfer the case to Butler County.” Ex parte Elliott, 80 So.3d 908 (Ala.2011). Accordingly, in compliance with the supreme court’s opinion, we hereby quash the writs of mandamus issued by this court on December 30, 2010.

2090352 — WRIT QUASHED.

2090368 — WRIT QUASHED.

All the judges concur.


author: MOORE, Judge.

text:
    C.B. v. D.P.B.
    2100406.
    Court of Civil Appeals of Alabama.
    June 24, 2011.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1101169.

      S. Phillip Bahakel of S. Phillip Bahakel & Associates, Pelham, for appellant.
    Daniel C. Lemley, Tuscaloosa, for appel-lee.
   MOORE, Judge.

C.B. (“the father”) appeals from a judgment of the Tuscaloosa Juvenile Court (“the juvenile court”) in an action initiated by D.P.B. (“the mother”) that, among other things, ordered the father to pay unpaid medical expenses and postminority educational support for the parties’ child and attorney’s fees to the mother. We dismiss the father’s appeal.

On September 17, 2009, the mother filed a petition in the juvenile court requesting postminority educational support for the parties’ child; that the father be held in contempt for his failure to pay medical, dental, and optical expenses for the parties’ child; and that the father be ordered to pay the mother’s attorney’s fees. The father filed an answer to the mother’s petition on October 19, 2009. On September 9, 2010, the juvenile court entered an order stating that the parties had reached an agreement in regard to the issue of contempt for the father’s failure to pay past-due medical and orthodontic expenses and ordering the father to pay $2,174.75 to the mother within 60 days of the date of the hearing pursuant to that agreement.

On September 20, 2010, the father filed a motion to set aside the juvenile court’s September 9, 2010, order, asserting that the parties had not reached an agreement regarding the past-due medical and orthodontic expenses. The mother filed a response to the father’s motion on September 21, 2010.

On December 29, 2010, the juvenile court entered a final judgment setting aside its September 9, 2010, order. The juvenile court also ordered the father to pay the mother $4,612.75 for his portion of the child’s unpaid medical expenses, although it declined to find the father in contempt of court for his failure to pay those medical expenses. The juvenile court further ordered the father to “provide and pay for 50% of tuition, room and board, fees, and book expenses” for the undergraduate college education of the parties’ child, with certain limitations, and it determined that the father owed the mother $1,658.67 as his portion of postmi-nority educational expenses incurred by the parties’ child during the fall 2010 semester. Finally, the juvenile court ordered the father to pay $1,000 toward the mother’s attorney’s fees.

On January 21, 2011, the father filed a postjudgment motion; that motion was purportedly denied on January 24, 2011. The father filed his notice of appeal to this court on February 1, 2011.

Before addressing the issues raised by the father on appeal, we must first consider whether the father’s notice of appeal was timely filed.

“It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 87-88 (Ala.Civ.App.2007).

“Actions concerning child support are generally governed by the Alabama Rules of Juvenile Procedure.” H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009). In M.C. v. L.J.H., 868 So.2d 465 (Ala.Civ.App.2003), this court held:

“[The] Rule 60(b)[, Ala. R. Civ. P.,] motions were filed in the family court of Jefferson County and docketed with a ‘CS’ number, which indicates a juvenile-court child-support matter.... State ex rel. Provitt v. Coleman, 821 So.2d 1015, 1019 (Ala.Civ.App.2001). For this reason, this proceeding is governed by the Rules of Juvenile Procedure instead of the Rules of Civil Procedure. C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002); R.H. v. J.H., 778 So.2d 839 (Ala.Civ.App.2000).”

868 So.2d at 467.

Rule 1(B), Ala. R. Juv. P., requires that all postjudgment motions in a juvenile action be filed within 14 days after the entry of a judgment. Because the father’s postjudgment motion was filed on January 21, 2011, more than 14 days after the juvenile court’s December 29, 2010, judgment was entered, the father’s motion was untimely and did not toll the time for filing a notice of appeal. See T.G. v. Etowah County Dep’t of Human Res., 937 So.2d 523, 524 (Ala.Civ.App.2005). “A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a [timely filed] postjudgment motion.” H.J.T. v. State ex rel. M.S.M., 34 So.3d at 1279. See also Rule 4(a)(1), Ala. R.App. P. The father filed his notice of appeal on February 1, 2011, more than 14 days after the entry of the juvenile court’s judgment; thus, the father’s appeal was untimely filed. “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. We, therefore, dismiss the father’s appeal.

APPEAL DISMISSED.

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


author: THOMAS, Judge.

text:
    F.Z. v. S.P.
    2100609.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.
    Wendy Allison Reese, Birmingham for appellant.
    Alfreda R. Gray, Birmingham, for appel-lee.
   THOMAS, Judge.

F.Z. (“the father”) appeals from a judgment of the Jefferson Juvenile Court denying his petition to modify custody. We dismiss the appeal as being taken from a void judgment.

On October 14, 2010, the father filed a petition in the juvenile court to modify custody of D.Z. (“the child”), who had been placed with S.P., the child’s paternal aunt, as a result of an earlier judgment of the juvenile court in which it had found the child to be dependent. On October 26, 2010, the juvenile court entered an order transferring the case to the domestic-relations division of the Jefferson Circuit Court. The juvenile court’s transfer order stated:

“Ex Mero Motu this cause is transferred to the Domestic Relations Court as this matter (petition to modify filed ...) was filed after the effective date of Section 12-15-117[, Ala.Code 1975.]
“All orders entered in this matter subsequent to filing of this petition are set aside and held for naught as this Court does not have subject matter jurisdiction.”

The record does not contain any order from the circuit court transferring the case back to the juvenile court or any order from the juvenile court setting aside its transfer of the case to the circuit court.

In spite of its order transferring the case to the circuit court, the juvenile court continued to act in the ease, holding a hearing on the merits of the father’s petition and, on February 28, 2011, entering a judgment denying the father’s petition to modify custody of the child. The father filed a postjudgment motion, which the juvenile court denied. The father subsequently appealed to this court.

Alabama courts have long recognized “the general rule that jurisdiction of a case can be in only one court at a time.” Ex parte State ex rel. O.E.G., 770 So.2d 1087, 1089 (Ala.2000). When the juvenile court entered its order transferring the case to the circuit court and holding all of its orders in the case void, it lost jurisdiction to take any further action in the case. Id. Because the juvenile court did not have subject-matter jurisdiction over the case after it entered its order transferring the case to the circuit court, the juvenile court’s judgment, along with any other orders entered after the entry of the transfer order, are void. Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1183 (Ala.2006). A void judgment will not support an appeal. Id. “[A]n appellate court must dismiss an attempted appeal from such a void judgment.” Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Therefore, we dismiss the father’s appeal and instruct the juvenile court to vacate its February 28, 2011, judgment, along with any other orders entered after October 26, 2010, the date of the order transferring the case to the circuit court.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . We express no opinion as to the correctness of the juvenile court's determination in its October 26, 2010, order that it did not have subject-matter jurisdiction over the father's petition.


text:
    BELLA INVESTMENTS, INC. v. MULTI FAMILY SERVICES, INC.
    2100388.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.

      T. Blake Liveoak of Liveoak & Boyles, P.C., Birmingham, for appellant.
    Kile T. Turner and W.M. Baines Fleming III of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.
   THOMAS, Judge.

Bella Investments, Inc. (“Bella”), appeals from a summary judgment entered by the Jefferson Circuit Court in favor of Multi Family Services, Inc. (“MFS”), on all Bella’s claims against MFS. We dismiss the appeal.

In June 2003, Bella entered into a contract with MFS for MFS to serve as the general contractor for the construction of a hotel in Gardendale. The contract between the parties included a warranty provision, warranting MFS’s work for one year from the issuance of the certificate of occupancy. MFS, in turn, contracted with various other entities, including David & Company Architects, Inc. (“David & Company”), to serve as the architects for the project and Danny Hawkins d/b/a Danny Hawkins Floor Covering (“Hawkins”) to serve as a subcontractor to install tile flooring in the hotel.

The building inspector for the City of Gardendale inspected the hotel on April 5, 2006, and, that same day, issued a certificate of occupancy for the hotel. At the time that the certificate of occupancy was issued, several issues, including cracking in some of the floor tiles, remained outstanding and had been listed on a punch list of items for MFS to remedy. Bella also made requests under the warranty provision of the contract for MFS to repair cracked floor tiles in the hotel. According to Bella, problems with cracking floor tiles continued and MFS failed to remedy the issue.

On August 4, 2008, Bella sued MFS, C. Boyd Edgerton, in his individual capacity, David & Company, and various fictitiously named defendants in the Marshall Circuit Court. In its complaint, Bella asserted claims of negligence/wantonness, negligent hiring and supervision, suppression, and breach of contract. Bella also asserted that MFS’s subcontractors were liable to Bella because Bella was a third-party beneficiary to the contracts between MFS and the subcontractors. Bella then moved the Marshall Circuit Court to transfer the action to the Jefferson Circuit Court; MFS and Edgerton joined Bella’s motion to transfer the action. On September, 30, 2008, the Marshall Circuit Court transferred the action to the Jefferson Circuit Court (“the trial court”).

On November 3, 2008, Bella amended its complaint, reasserting its claims and substituting Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools for some of the fictitiously named defendants. MFS answered Bella’s complaint, denying all its material allegations and asserting certain affirmative defenses, including the statute of limitations. MFS also asserted a counterclaim against Bella, alleging that Bella had breached its contract with MFS by failing to pay MFS the full amount owed under the contract. In addition, MFS asserted a third-party complaint against Sur-esh Parmar and Bharti Parmar, in their individual capacities, alleging that the Par-mars had executed a note in favor of MFS, which they had not paid. On May 5, 2010, Bella filed a second amended complaint, reasserting its claims and substituting Hawkins for one of the fictitiously named defendants.

On June 14, 2010, MFS moved the trial court for a summary judgment on all Bella’s claims against it. MFS asserted three bases in support of its summary-judgment motion: (1) that all Bella’s claims were barred by the applicable statute of limitations, as provided in § 6-5-221, Ala.Code 1975; (2) that Bella did not provide MFS with notice of its claims, in contravention of the contract between the parties; and (3) that there was no genuine issue of material fact concerning Bella’s suppression claim. MFS also submitted evidence in support of its summary-judgment motion. Bella filed a brief in opposition to MFS’s summary-judgment motion and submitted evidence in support of its brief in opposition.

On September 23, 2010, the trial court entered a summary judgment in favor of MFS on all Bella’s claims against it. In its order, the trial court stated that it had determined, among other things, that Bella’s claims were barred by the statute of limitations. The summary-judgment order also stated that “[t]his order shall not affect [Bella’s] claims against Defendants David & Company ... and [Hawkins],” the only other defendants still remaining in the action. See supra note 2. Bella filed a pui’ported postjudgment motion requesting that the trial court alter, amend, or vacate its summary-judgment order, which the trial court denied. Bella subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

The trial court’s summary-judgment order disposed of only the claims of Bella against MFS. An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253. MFS’s counterclaim against Bella, MFS’s third-party claims against the Par-mar’s, and Bella’s claims against David & Company and Hawkins remain pending in the trial court. Therefore, the summary judgment from which Bella appealed is not a final judgment.

The trial court did not certify the judgment as final pursuant to Rule 54(b), and, in this case, it does not appear that such a certification would have been appropriate. The facts regarding when Bella’s causes of action accrued and, accordingly, when the statute of limitations began to run, are also relevant to the claims Bella asserted against David & Company and Hawkins, which claims remain pending in the trial court. Moreover, Bella’s claims against David & Company and Hawkins arise out of the same set of common facts as Bella’s claims against MFS. Piecemeal appellate review of cases is disfavored. See Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So.3d 419, 424 (Ala.2011) (quoting Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala.2009)) (noting that certification pursuant to Rule 54(b) was inappropriate when “ ‘[repeated appellate review of the same underlying facts would be a probability’ ”). In addition, MFS’s counterclaim against Bella and MFS’s third-party claims against the Parmars, which remain pending in the trial court, also involve the same set of facts as Bella’s claims against MFS, David & Company, and Hawkins. See Palmer v. Resolution Trust Corp., 613 So.2d 373, 376 (Ala.1993) (holding that the trial court exceeded its discretion in certifying a summary-judgment order as final under Rule 54(b) when issues necessary to the resolution of the appeal were common to issues necessary to the resolution of still-pending counterclaims).

Because the summary-judgment order from which Bella appeals is not a final judgment, and because a Rule 54(b) certification of the summary-judgment order would not be appropriate in this case, we dismiss the appeal as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

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

      . Edgerton was a principal in MFS. The claims against Edgerton in his individual capacity were later dismissed.

      . Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools were all later dismissed as defendants in the case.

      . The Parmars are principals in Bella.

      . Section 6-5-221 provides, in pertinent part:
      "(a) All civil actions in tort, contract, or otherwise against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration, or observation of any construction of any improvement on or to real property, or against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and constructed in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
      "(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improve ment, or any defect or deficiency in the construction of any such improvement; or
      "(ii) Damage to real or personal property caused by any such defect or deficiency; or
      “(iii) Injury to or wrongful death of a person caused by any such defect or deficiency;
      “shall be commenced within two years next after a cause of action accrues or arises, and not thereafter.”

      . Rule 54(b) provides, in pertinent part:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”


text:
    Ernest KREITZBERG v. Myra KREITZBERG. Myra Kreitzberg v. Ernest Kreitzberg.
    2100269.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.

      William L. Pfeifer, Jr., Anniston, for appellant/cross-appellee Ernest Kreitzberg.
    David P. Shepherd, Fairhope, for appel-lee/cross-appellant Myra Kreitzberg.
   THOMAS, Judge.

Ernest Kreitzberg (“the husband”) appeals from a judgment of the Baldwin Circuit Court divorcing him from Myra Kreitzberg (“the wife”) that, among other things, awarded the wife alimony and divided the marital property between the parties. The wife cross-appeals from the trial court’s judgment divorcing the parties. With respect to the appeal, we affirm in part, reverse in part, and remand with instructions. With respect to the cross-appeal, we affirm.

Facts and Procedural History

After nearly 35 years of marriage, the husband filed a complaint for a divorce in the trial court on July 9, 2009, claiming incompatibility of temperament and an irretrievable breakdown of the marriage. The wife answered the complaint and counterclaimed for a divorce on September 23, 2009. In her counterclaim, the wife alleged that the husband had physically and emotionally abused her during the course of the marriage. On March 9, 2010, the husband amended his complaint for a divorce to include an allegation that the wife had physically and emotionally abused him during the course of the marriage. The wife answered the amended complaint and denied the allegations of abuse. The parties conducted discovery.

On October 6 and 18, 2010, the trial court conducted a trial regarding the husband’s divorce complaint and the wife’s counterclaim for a divorce. The husband and the wife were the only witnesses to testify during the two-day trial.

The husband testified at trial that he had received an inheritance from both his mother and his aunt. Specifically, he testified that he had inherited 2,484 shares of ExxonMobil Corporation stock from his mother after her death on January 30, 1997. He stated that those shares of stock had been transferred into his name alone. He further testified that a program called “Computer Share” manages the stock and that that program continually reinvests any dividend income that the stock produces. He stated that the wife’s name was never on his stock account with ExxonMo-bil.

In addition to the ExxonMobil stock, the husband testified that he had inherited $99,712 in cash from his mother. He stated that, upon receipt of the cash, he immediately had taken the money to the bank, had sent $8,000 of the money to the United States Treasury to pay taxes on the inheritance and had placed the remaining $91,712 into a certificate of deposit (“CD”). He testified that he had purchased that CD at the State Bank of Countryside in Countryside, Illinois. He further testified that the CD had been placed in his name only. The husband testified that he had continually reinvested the money in the CD, along with any investment income from the CD, in the form of a CD until 2005. He testified that in 2005 he had moved the CD from the State Bank of Countryside to AmSouth Bank (“Am-South”) in Fairhope and that the CD had remained in the form of a CD with Am-South from 2005 until 2008. The husband testified that the CD at AmSouth was placed in his name alone and that all the interest the CD accrued was immediately reinvested.

The husband testified that in 2008 he had withdrawn all the money in the CD, which had grown to $133,312.25, and had purchased ExxonMobil stock with it. He also stated that any dividend income derived from the stock was immediately reinvested.

Other than the stocks and cash, the husband also testified that he had inherited $23,000 in United States savings bonds from his mother. He stated that that money was held in the form of savings bonds in his name until 2005, when he redeemed the savings bonds at AmSouth. The husband testified that, after he redeemed the savings bonds, he placed the money into a money-market account held jointly in his and the wife’s names. He stated that' he had placed the money in the joint money-market account in order to pay taxes on the investment income his inherited money and stocks had generated because the couple filed joint tax returns.

The husband also testified that he had inherited assets from his aunt. He testified that she had died in 2008, that he had inherited a total of $87,000 from her estate, and that he had received the money in two separate payments — $60,000 as an initial payment and another $27,000 as the final payment. The husband testified that he had deposited the $60,000 in an account he had opened in his name at Royal Bank of Canada (“RBC”). He testified that, after having placed the money in the RBC account, he immediately wrote a check for the entire $60,000 to ExxonMobil to purchase 827 shares of stock. He testified that all dividend income derived from that stock was automatically reinvested.

The husband testified that he had received the final payment of $27,000 in October 2009. He stated that he had placed that money in a personal checking account at RBC in his name and that he had then transferred that money to ExxonMobil to purchase additional shares of stock. He further stated that all the dividend income from that stock was automatically reinvested. He testified that he had never sold any of his ExxonMobil stock or withdrawn any money from his stock account with ExxonMobil.

The husband also testified that the dividend income from the ExxonMobil stock was listed on the parties’ joint tax returns. He stated that in some years the parties had a tax liability upon which they paid taxes to the United States government. He testified that the total amount of taxes the parties had paid on the ExxonMobil dividends was $8,560 and that the total taxes they had paid after redeeming the savings bonds was $10,980. He further testified that the total taxes the parties had paid from 1997 until 2009 on any income derived from inherited assets was $32,253.

He testified that the assets of the marital estate included a 2003 Saturn automobile, a scooter, a rowboat with a motor worth approximately $1,000, a 1978 Catalina sailboat worth approximately $2,000-$3,000, and items of personal property. Additionally, he testified that the parties owned their home in Fairhope and that it did not have an outstanding mortgage on it. He opined that the value of the marital residence was $225,000. He stated that he had come to the $225,000 value by considering a large number of comparable homes that had been sold in the parties’ neighborhood.

The husband also testified that he had an individual retirement account (“IRA”) with a balance of around $36,000 at RBC and that the wife also had her own IRA and that the parties had a joint money-market account containing $210,000. He further testified that the parties had a joint checking account with a balance of approximately $1,300. He stated that the parties lived off of the money in the joint checking account. His testified that the joint checking account is funded by his Social Security benefits and his two retirement accounts. Specifically, he stated that he has a pension with JI Chase Company from which he receives approximately $363 per month and a pension with Allis Chal-mers Manufacturing Company from which he receives approximately $580 per month. Additionally, he stated that his Social Security check of $1,678 per month is also deposited into the account, while the wife’s Social Security check of approximately $598 is deposited into her own separate checking account.

The husband testified that he had withdrawn a total of $16,000 from the parties’ joint checking account to pay his attorneys throughout the divorce action. He stated that he did not expect the wife to pay for his attorney fees but that he felt the parties should split the cost of the attorney fees in the divorce action. He also asked the court to award each party 50% of the money-market account containing $210,000. Additionally, he stated that he would like the court to award each party 50% of the parties’ monthly joint income, which compromises his JI Chase pension, his Allis Chalmers pension, his Social Security check, and the wife’s Social Security check. This division would provide each party with roughly $1,600 per month. He also stated that he did not mind if the wife was awarded the 2003 Saturn automobile but that he would like the parties’ Catalina sailboat, the scooter, and the rowboat.

The husband testified that he had never committed any act of domestic violence against the wife. However, he testified that the wife had committed acts of domestic violence against him on two separate occasions. He stated that the wife had thrown a plate that struck hri head, causing the police to be called, that resulted in the wife’s being arrested for domestic violence on July 4, 2009. He also testified that the wife had struck him in the eye while he was driving. He testified that he did not notify the police of this incident but that he did go to the hospital to seek medical attention as a result of the incident. He stated that the wife had called the police regarding the parties’ disagreements, but, he said, he had never been arrested.

The husband testified that the wife’s relationship with her daughter, Michelle Kainz, and Kainz’s grandchild had created problems in the marriage. He opined that Kainz does not like him and that she plots against him. He testified that he did allow the wife to have private telephone conversations with Kainz, but that he had told the wife that he preferred to be involved in any telephone conversations she had. He also stated that he was not trying to control the wife. He testified that he had requested that Kainz stop sending the wife pictures of Kainz’s granddaughter because the pictures upset the wife because they reminded her that she was not able to visit the child. The husband also testified that he did not shout obscenities at the wife or call her names.

The wife testified that the parties’ marriage had deteriorated over the years. She testified that the parties had serious marital problems, including verbal abuse, emotional abuse, and physical abuse. The wife stated that those problems had started in the 1980s but had gotten much more severe after the husband retired because the parties spent more time together. She testified that she had filed for a divorce in the mid-1980s because of an incident in which the husband had cornered her and threatened to kill her. She testified that the husband had threatened to kill her several other times, but, she said, he did not threaten to kill her every time they had a dispute. She testified that he would talk to her in a demeaning way and that he had threatened to burn down the parties’ home. She further testified that the husband would throw objects at her. Specifically, she testified that he had thrown a wooden stool, paints, and a dog bowl full of water, which had hit her in the back of the head. She also testified that the husband had hit her with a magazine and a remote control. She testified that he had spit in her face. She also stated that he had abused her approximately once a month from the year 2000 until the present.

The wife testified that she had thrown a plate at the husband on July 4, 2009, and that she had been arrested on a charge of domestic violence regarding that incident. She stated that the charges had been dropped and that she had thrown the plate in response to the husband’s constant emotional abuse. The wife testified that she had never struck the husband in the eye.

The wife testified that the husband had 11,626.992 shares of ExxonMobil stock with a value of approximately $758,000. She testified that the parties had paid taxes on the stock from their joint money-market account. However, she testified that the husband had placed only $23,000 of his inheritance in the parties’ joint money-market account and that he had kept the rest of the money and assets he had inherited separate. She stated that, other than the $23,000 deposited into the joint money-market account, the husband’s inheritance had never been used for the common benefit of the parties.

The wife testified that the value of the marital residence was $247,000. She stated that she did not care to keep the marital residence but that she would like 50% of the parties’ equity in the house. She also testified that she wanted the trial court to order that the parties’ IRA accounts be equalized because her IRA contained about $31,000 while the husband’s IRA contained about $35,000. She also testified that she wanted her personal checking account, with a value of approximately $2,000, to be awarded entirely to her.

In regard to additional income, the wife testified that she had considered her monthly expenses following the divorce. She testified that her monthly living expenses would be $2,845.74, which included the cost of paying rent because she was not asking for the marital residence. The wife did not dispute the husband’s testimony regarding the parties’ monthly income, and she testified that the parties’ monthly income included about $300 from the husband’s JI Chase pension, about $500 from the Allis Chalmers pension, about $1,600 from the husband’s Social Security check, and about $600 from her Social Security check. She testified that she would like the trial court to split the parties’ monthly income evenly between the parties, which would give her approximately $1,600 per month. She further asked the trial court to award her $1,500 in monthly alimony in order to provide her with the additional money she would need in order to pay for all of her expenses following the divorce.

The wife further testified that she had had serious health issues throughout the marriage. She had had open-heart surgery in 2005 and in 2006. The wife also testified that she had had a stroke in 2006 and that she had had a plate placed in her foot in 2008. She further testified that she had had a hip replacement in 2007 and that she will most likely require another surgery on her foot in the future.

After considering the ore tenus testimony and the trial exhibits, the trial court entered a judgment on November 19, 2010, divorcing the parties on the grounds of incompatibility and physical and emotional abuse by the husband. Pursuant to its November 19, 2010, judgment, the trial court ordered the division of the martial assets as follows: (1) the husband was awarded 100% of the ExxonMobil stock; (2) the husband was awarded the marital residence, which the trial court found to have a fair market value of $247,000; (3) the wife was awarded 65% of the equity in the marital residence, and, accordingly, the husband was ordered to pay the wife $160,550; (4) the wife was awarded 50% of the value of the parties’ joint checking account plus an additional $8,000 as reimbursement for the $16,000 the husband had withdrawn from the joint account; (5) the wife was awarded the 2003 Saturn automobile; (6) the husband was awarded the parties’ Catalina sailboat, the scooter, the rowboat, and a trailer; (7) the wife was awarded 50% of the parties’ joint money-market account, plus an additional $5,000 as reimbursement for $10,000 the husband had withdrawn from the money-market account during trial; (8) the husband was ordered to pay the wife $757.69 in order to equalize the parties’ IRA accounts; (9) the wife was awarded periodic alimony in the amount of $2,500 per month; (10) the husband was ordered to pay the wife’s attorney fees in the amount of $14,625; and (11) the parties were awarded specific items of personal property.

On December 20, 2010, the husband filed a timely notice of appeal. The wife filed a cross-appeal on December 30, 2010.

Issues

The husband argues three issues on appeal: (1) whether the trial court exceeded its discretion in its award of $2,500 in monthly periodic alimony to the wife in violation of § 30-2-51(a), Ala.Code 1975, (2) whether the trial court’s award of alimony violates § 30 — 2—51(b)(3), Ala.Code 1975, and (3) whether the trial court erred in awarding the wife sums from the husband’s retirement accounts because, he alleges, the wife failed to meet her burden of proving which retirement funds were acquired during the course of the marriage.

The wife raises one issue on cross-appeal: whether the trial court erred in finding that the assets inherited by the husband were not used regularly for the common benefit of the parties.

Standard of Review

“A divorce judgment that is based on evidence presented ore tenus is afforded a presumption of correctness. Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). This presumption of correctness is based upon the trial court’s unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Brown, supra; Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A judgment of the trial court based on its findings of facts will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Brown, supra. However, there is no presumption of correctness in the trial court’s application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).”

Robinson v. Robinson, 795 So.2d 729, 732-33 (Ala.Civ.App.2001).

Analysis

We will first consider the wife’s contention that the trial court erred in finding that the assets inherited by the husband were not used regularly for the common benefit of the parties’ marriage because it is a threshold issue to be determined before considering the husband’s arguments. The wife argues that the husband’s inheritance, specifically the Exxon-Mobil stock, was used for the common benefit of the marriage because, she says, the dividends from the stock were listed as income on the parties’ joint tax returns and the husband placed $23,000 of his inheritance in their joint money-market account in order to pay the parties’ taxes.

The trial court awarded the husband 100% of the ExxonMobil stock because it concluded that the stock was the husband’s separate property that had not been used for the common benefit of the marriage and was therefore not subject to division under Ala.Code 1975, § 30-2-51(a). Specifically, the trial court stated on the record:

“I don’t know that there would have been any way for [the husband] to do anything else to keep his inheritance separate in what he did. Based on that, I’m awarding him 100 percent of the [ExxonMobil] stock. After a 41-year marriage[] ends like it does, that does not feel right, but that is what I believe the law requires me to do.”

Section 30-2-51 (a) provides:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

The husband spent a considerable amount of time testifying as to exactly how he had invested and used the inheritance from both his mother and his aunt. Moreover, the wife’s testimony did not contradict the husband’s testimony regarding the issue of his inheritance. It was undisputed that the husband had cashed United States savings bonds worth $23,000 and had placed that amount of money into the parties’ joint money-market account to pay taxes but that all other inherited funds and assets had remained , in his name alone and that any investment income derived from those funds and assets had been automatically reinvested. Moreover, the wife specifically testified that, other than the $23,000 deposited into the joint money-market account, the husband had never used his inheritance to benefit the household.

The wife relies upon Weichman v. Weichman, 628 So.2d 867 (Ala.Civ.App.1993), to bolster her claim that the trial court erred. In Weichman, this court affirmed a trial court’s judgment holding that a baseball-card collection was a marital asset and not part of the husband’s separate estate when evidence presented in the trial court established that the wife had contributed to the collection and that additions to the collection had been purchased with marital assets. However, in this case, the trial court concluded that the ExxonMobil stock was part of the husband’s separate estate, and there was no evidence indicating that any part of the stock had been sold for use by either party. Therefore, this case is unlike Weichman.

“The determination of a spouses’s separate estate is a matter for the trier of fact after reviewing all the evidence in each case.” Shirley v. Shirley, 600 So.2d 284, 287 (Ala.Civ.App.1992). In this case, the trial court heard a significant amount of testimony regarding the husband’s inheritance. Moreover, as noted above, the wife testified that, other than the $23,000 from the sale of the savings bonds, the husband’s inheritance had never been used to benefit the parties in any way. See Hull v. Hull, 887 So.2d 904, 908 (Ala.Civ.App.2003) (holding that the wife’s inheritance had not been used for the common benefit of the parties during the marriage when the evidence established that the wife had withdrawn only $10,000 from her inheritance on one occasion to remodel the kitchen). Therefore, based on the testimony, we cannot conclude that the trial court erred in finding that the husband’s inheritance, specifically the ExxonMobil stock, had not been used regularly for the common benefit of the parties during their marriage. Accordingly, we affirm the trial court’s judgment insofar as it awarded 100% of the ExxonMobil stock to the husband.

The husband contends that the trial court erred in awarding the wife $2,500 per month in periodic alimony because, he says, the award is excessive in light of his monthly income. Specifically, he argues that payment of the alimony award requires him to either liquidate his inheritance, which the trial court concluded was part of his separate estate, or give the wife more than 50% of his retirement benefits; thus, he claims that the trial court’s judgment awarding such a large alimony award indirectly did what § 30-2-51(a) and (b)(3) prohibit it from doing directly.

“[MJatters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).”

Henderson v. Henderson, 800 So.2d 595, 597 (Ala.Civ.App.2000).

It is well established that

“[t]he purposes of alimony are to preserve, to the extent possible, the economic status of the parties that existed during the marriage and to provide support for the dependent former spouse. Kahn v. Kahn, 682 So.2d 1377, 1380 (Ala.Civ.App.1996); and O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996). An award of alimony and the division of marital property must be considered together and must be equitable. Ex parte Durbin, 818 So.2d [404] at 408 [ (Ala.2001) ]. The determination as to what is equitable lies within the sound discretion of the trial court. Id. Factors to be considered in determining an award of alimony and the division of property include the parties’ respective ages, earning capacities, and future prospects; the parties’ standard of living and stations in life; the length of the marriage; the conduct of the parties in regard to the cause of the divorce; and the source, value, and types of marital properties. Murray v. Murray, 598 So.2d 921 (Ala.Civ.App.1992); Rolls v. Rolls, 623 So.2d 744 (Ala.Civ.App.1993); Crowe v. Crowe, 602 So.2d 441, 443 (Aa.Civ.App.1992) (fault can be considered in dividing property, even if the divorce is not granted on the basis of fault).”

Carter v. Carter, 934 So.2d 406, 409 (Ala.Civ.App.2005). Additionally, we note that “[p]eriodic alimony is payable from the current earnings of the paying spouse.” Miller v. Miller, 47 So.3d 262, 265 (Ala.Civ.App.2009) (citing Bray v. Bray, 979 So.2d 798, 800 (Ala.Civ.App.2007)).

In this case, the parties are both retired and the evidence as to the amount of monthly income they receive was undisputed. It was also undisputed that the wife had had some serious medical issues. Further, the trial court divorced the parties on the grounds of incompatibility and physical and emotional abuse on the part of the husband; thus, the trial court concluded that the husband’s conduct was a major factor in regard to the cause of the divorce. Additionally, the wife presented evidence to the trial court indicating that her monthly expenses following the divorce would be approximately $2,845.74, which included the cost of paying rent. Therefore, we cannot conclude that the trial court erred in awarding periodic alimony to the wife. However, we will consider whether the award of periodic alimony is excessive in light of the financial assets of the husband.

Specifically, the husband argues that the trial court erred in awarding the wife periodic alimony in the amount of $2,500 per month because, he says, he can only pay such an excessive alimony award by liquidating his inheritance or paying more than 50% of his retirement income to the wife. We note that a trial court may not use an award of alimony as a way to indirectly circumvent the provisions of § 30-2-51(a) and (b)(3). See, e.g., Murphy v. Murphy, 624 So.2d 620, 622-23 (Ala.Civ.App.1993) (reversing a trial court’s award of alimony in gross to the wife and holding that the “disposition was an effort to indirectly do what the existing law prohibits” when the only assets awarded to the husband that could be used to satisfy the award were two retirement accounts).

The parties agreed that the parties’ income was funded by the husband’s JI Chase pension, the husband’s Allis Chal-mers pension, and the parties’ Social Security checks, which are all retirement benefits. According to the husband’s testimony, which the wife did not dispute, the parties’ total monthly income was $3,219. However, the husband’s total monthly income without any contribution from the wife’s Social Security check was $2,621. Therefore, pursuant to § 30-2-51(b)(3), the wife is entitled to a maximum of $1,310.50 per month from the husband’s monthly income. Accordingly, because the retirement income was the husband’s sole source of income and because “[p]e-riodic alimony is payable from the current earnings of the paying spouse,” the maximum amount of periodic alimony the trial court could have awarded to the wife was $1,310.50 per month. Miller, 47 So.3d at 265. Therefore, we hold that the trial court erred in awarding the wife $2,500 per month in periodic alimony.

Accordingly, we reverse the trial court’s periodic-alimony award because the award violates § 30-2-51(b)(3). Additionally, because an award of alimony must be considered together with the division of marital property, see Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), we also reverse the judgment insofar as it divided the marital property. On remand, the trial court is instructed to adjust the alimony award and the property division as it considers appropriate in light of the parties’ retirement incomes and the fact that the ExxonMobil stock is an asset of the husband’s separate estate.

Lastly, the husband contends that the trial court erred in awarding the wife any sums from his retirement accounts because, he says, the wife failed to meet her burden of proving which retirement funds were acquired during the course of the marriage. It is a general rule that “the spouse seeking an award of retirement benefits bears the burden of proving the amount of retirement benefits that were accumulated during the marriage.” Payne v. Payne, 48 So.3d 651, 654 (Ala.Civ.App.2010); see also § 30-2-51(b)(2), Ala. Code 1975 (“The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage.... ”). However, in this case, we cannot address the husband’s argument on appeal because he failed to raise this issue before the trial court.

The trial court made no findings of fact relative to its award of retirement benefits; its judgment merely awards the wife periodic alimony in a specific amount and requires that the husband pay an additional $757.69 in order to equalize the IRA accounts between the parties. Thus, in order to preserve for review his challenge to the sufficiency of the evidence as to what retirement assets were acquired during the parties’ lengthy marriage, the husband was required to have argued that issue before the trial court or to have raised that issue in a postjudgment motion. See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) (“[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”); see also Powe v. Powe, 48 So.3d 635, 637 (Ala.Civ.App.2009) (refusing to address the husband’s argument that the wife had failed to prove the amount of his military-retirement benefits that had accrued during the parties’ marriage because the husband had failed to argue that issue in the trial court).

In this case, the husband did not argue that the wife had failed to prove what retirement assets had been acquired during the marriage at trial and he did not file a postjudgment motion. Therefore, we cannot address the husband’s argument that the wife failed to prove the amount of the husband’s retirement benefits that had accrued during the parties’ marriage. Accordingly, we affirm the trial court’s judgment insofar as it awarded the wife $757.69 of the husband’s IRA in order to equalize the parties’ IRA accounts.

Conclusion

To summarize our holdings with respect to the husband’s appeal, we affirm the judgment of the trial court insofar as it awards the wife a portion of the husband’s IRA to equalize the parties’ IRA accounts; we reverse the judgment of the trial court insofar as it awards the wife $2,500 in periodic alimony and divides the parties’ marital property; and we remand the cause to the trial court with instructions. With respect to the cross-appeal, we affirm the trial court’s judgment insofar as it holds that the husband’s inheritance is part of his separate estate and had not been used for the common benefit of the parties during the course of the marriage.

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

CROSS-APPEAL — AFFIRMED.

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

      . Although the parties married on December 30, 1974, it was undisputed that the parties had been cohabiting and living together as husband and wife since January 1969. However, the trial court made no findings regarding the issue of a common-law marriage. Thus, we consider the parties to have been married for nearly 35 years at the time the divorce proceedings were initiated.

      . See, supra note 1.

      . Her testimony was as follows:
      "Q. [Husband’s counsel]: Other than $23,000 in bonds, did any of the cash that he inherited, stock he inherited was that ever used to benefit your household in any way?
      "A. [Wife]: No, and isn't that a shame.
      "Q. [Husband’s counsel]: Were the dividends generated from the stocks that he purchased from all of the inherited assets ever used for household expenses?
      "A. [Wife]: Nope, just paid taxes on it.
      "Q. [Husband’s counsel]: Were they ever used for the benefit of the family in any way?
      "A. [Wife]: Nope.”

      . Section 30-2-51(b)(3) provides:
      "(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on die date the action for divorce is filed, provided that the following conditions are met:

      "(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

      . There was some testimony at trial indicating that the husband had additional income in the form of dividends from the ExxonMobil stock, as evidenced by the parties joint tax returns. However, this income cannot be considered in the award of periodic alimony because the ExxonMobil stock was deemed to be part of the husband's separate estate. See § 30-2-51(a).