author: PITTMAN, Judge.

text:
    ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT and Alabama Environmental Management Commission v. FRIENDS OF HURRICANE CREEK and John Wathen. Friends of Hurricane Creek and John Wathen v. Alabama Department of Environmental Management and Alabama Environmental Management Commission. SDW, Inc. v. Friends of Hurricane Creek and John Wathen.
    2090633 and 2090646.
    Court of Civil Appeals of Alabama.
    April 8, 2011.

      James L. Wright and Schuyler K. Espy, assoc, gen. counsel, Alabama Department of Environmental Management, for appellants/cross-appellees Alabama Department of Environmental Management and Alabama Environmental Management Commission.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellant SDW, Inc.
    David A. Ludder, Tallahasee, Florida, for appellees/cross-appellants Friends of Hurricane Creek and John Wathen.
   PITTMAN, Judge.

These three appeals have been taken from a summary judgment entered by the Montgomery Circuit Court in judicial-review proceedings challenging the correctness of a decision of the Alabama Environmental Management Commission (“the Commission”) declining to review an order rendered by the Alabama Department of Environmental Management (“the Department”) assessing monetary sanctions against SDW, Inc. (“the developer”), a residential developer that purportedly discharged certain materials into an unnamed tributary (“the tributary”) of Cottondale Creek, a body of water that flows into Hurricane Creek. Because we conclude that the circuit court erred, as to the appeal taken by the Department and the Commission in case no. 2090633 and the appeal taken by the developer in case no. 2090466, we vacate the circuit court’s judgment and remand the cause for further proceedings; we dismiss as moot the cross-appeal taken by the Friends of Hurricane Creek (“FOHC”) and John Wathen (who had initiated the administrative-review and the judicial-review proceedings) in case no. 2090633.

Under Alabama law, the Department is the state agency primarily responsible for administering environmental legislation, including the Alabama Water Pollution Control Act, Ala.Code 1975, § 22-22-1 et seq. See Ala.Code 1975, § 22-22A-2(l). The Department is vested with the discretion to “assess[] a civil penalty to any person who violates” various environmental statutes, including those pertaining to water pollution. Ala.Code 1975, § 22-22A-5(18)a. Such a penalty, if imposed, “shall not be less than $100.00 or exceed $25,000.00 for each violation,” subject to a $250,000 total, and each day that a violation continues is deemed, under Alabama law, to be a separate violation. Ala.Code 1975, § 22-22A-5(18)c.

Pursuant to notices of violation sent to the developer in July 2006 and January 2008 as to various claimed violations of best management practices as to its Williamsburg development in Tuscaloosa County, the Department, in September 2008, issued an administrative order determining that the developer should pay the Department a civil penalty of $20,000 and to take various measures designed to correct the conditions, such as the discharge of sediments from the Williamsburg development, that had been observed during the Department’s inspections. The Department and the developer were the sole parties to that administrative proceeding.

Under Alabama law, the Commission is the tribunal with statutory authority to “develop environmental policy for the state” and to “hear and determine appeals” brought by persons “aggrieved by ... administrative actionfs] of the [Department.” Ala.Code 1975, §§ 22-22A-6(a)(3) and (4) and 22-22A-7(c). The Commission, in administrative-appeal proceedings, has the authority to “modify! ], approvfe] or disapprov[e] the [Department's administrative action.” Ala.Code 1975, § 22-22A-7(c)(3).

In October 2008, FOHC and Wathen filed an administrative appeal with the Commission challenging the propriety of the Department’s order penalizing the developer; FOHC and Wathen contended that the Department’s order arbitrarily failed to make certain adverse findings as to the developer’s conduct and that the penalty amount assessed in the Department’s order was so low as to constitute an abuse of the Department’s discretion. The Department, appearing as a respondent in the administrative appeal, and the developer, appearing as an intervenor, each asserted, in addition to their substantive contentions, that FOHC and Wathen were not aggrieved parties entitled to appeal from the Department’s order. An evidentiary hearing in the case was held by a hearing officer, after which that officer transmitted to the Commission and the parties his recommended disposition of the appeal. As to the threshold standing issue, the hearing officer noted his “serious doubts” that FOHC and Wathen had suffered injury or had been threatened by injury as a result of the Department’s decision, but the hearing officer proceeded to assess the merits of the appeal, opining that the Department should have imposed a $21,325 penalty against the developer. After counsel for the Department, for the developer, and for FOHC and Wathen had filed objections to the hearing officer’s proposed order, the Commission, by majority vote, issued on August 21, 2009, a final order rejecting the proposed order prepared by the hearing officer, concluding that the appeal brought by FOHC and Wathen should be dismissed for lack of standing, and declining to rule on the substantive merits of the appeal.

Section 41-22-27(f), Ala.Code 1975, a portion of the Alabama Administrative Procedure Act (“the AAPA”), provides that “judicial review of any order of the ... [Cjommission modifying, approving or disapproving an administrative action of the ... Department ... shall be in accordance with the provisions for review of final agency decisions in contested cases in [the AAPA at] Sections 41-22-20 and 41-22-21,” Ala.Code 1975, “[e]xcept as provided in subdivision (6) of subsection (c) of Section 22-22A-7,” Ala.Code 1975. Section 22-22A-7(c)(6), in turn, provides that “[a]ny order of the ... Commission ... modifying, approving or disapproving the [Department’s administrative action” is final and “is appealable to the Montgomery County Circuit Court ... for judicial review on the administrative record provided that such appeal is filed within 30 days after issuance of such order.” Although § 41-22-20 sets forth a two-step process for securing judicial review, involving the filing of a notice of appeal with the agency and a petition for judicial review with the circuit court, the filing of a notice of appeal to the circuit court within 30 days has been held sufficient under § 22-22A-7(c)(6) to obtain review of a final order of the Commission. See Ex parte Plumbers & Steamfitters, Local 52, 622 So.2d 347 (Ala.1993).

On August 26, 2009, five days after the Commission had issued its order declining to hear the administrative appeal brought by FOHC and Wathen on the basis of lack of standing to seek administrative review, FOHC and Wathen, through counsel, filed a document in the Montgomery Circuit Court labeled “Notice of Appeal from Agency to Circuit Court” that stated as follows:

“NOTICE IS HEREBY GIVEN, pursuant to Ala.Code § 22-22A-7(c)(6), that [FOHC] and ... Wathen appeal to the Circuit Court for Montgomery County, Alabama, from the order of the ... Commission and final action of the ... Department ... entered in the matter of Friends of Hurricane Creek, et al. v. Alabama Dep’t of Envtl. Mgmt., et al., Docket No. 09-02 (Envt’l Mgmt. Comm’n) attached hereto.” Alabama Home Builders Licensure Bd. v. Butler, 706 So.2d 1267, 1268 (Ala.Civ.App.1997); cf. Alabama Dep’t of Mental Health & Mental Retardation v. Marshall, 741 So.2d 434, 436 (Ala.Civ.App.1999) (although judgment stating only that agency’s findings and conclusions were contrary to the evidence contravened § 41-22-20(0, appeal from that judgment was dismissed as untimely).”

On September 28, 2009, FOHC and Wathen filed a motion for a summary judgment, contending that there was no genuine issue of material fact and that the Commission’s order declining to reach the merits of the administrative appeal was in error as a matter of law. The Commission, the Department, and the developer filed responses in opposition, averring that FOHC and Wathen lacked standing to bring an administrative action. On March 10, 2010, after a hearing, the circuit court entered a judgment purporting to determine that the Department’s September 2008 order, not the Commission’s August 2009 decision declining to hear the administrative appeal from that order, was erroneous, citing Ala.Code 1975, § 41-22-20(k) (pertaining to judicial review generally); that court further ruled that the $20,000 penalty assessed by the Department in the September 2008 order was below the statutorily prescribed minimum penalty and directed that a new penalty be assessed. After the entry of that judgment, the Department and the Commission jointly filed a notice of appeal (case no. 2090633); FOHC and Wathen filed a cross-appeal (case no. 2090633); and the developer filed a separate notice of appeal (case no. 2090646). The appeals have been consolidated for decision by this court.

On appeal, the Commission, the Department, and the developer contend that the circuit court erred in failing to comply with Ala.Code 1975, § 41-22-20(£), which provides that, “[u]nless the court affirms the decision of the agency” (which in this case is the Commission’s order dismissing FOHC and Wathen’s administrative appeal), “the court shall set out in writing ... the reasons for its decision.” We addressed the effect of that provision in Alabama State Personnel Board v. Carson, 939 So.2d 49, 51 (Ala.Civ.App.2006), in which we reversed a judgment entered by the same trial judge that rendered the judgment in this case:

“In a long line of cases since the 1981 adoption of the AAPA, we have required substantial compliance with § 41-22-20(1) on pain of reversal. For example, in Alabama Medicaid Agency v. Norred, 497 So.2d 176, 176 (Ala.Civ.App.1986), we reviewed a judgment reversing an administrative order in which the trial court stated, in pertinent part, that ‘ “[t]he Court is satisfied that according to the testimony and exhibits presented at ... [an administrative hearing], the conclusions and recommendations of the hearing officer are correct and that the [agency] was in error.” ’ In concluding that that statement of reasons was insufficient under § 41-22-20(0 and in reversing that judgment, we noted the limited and deferential standard of review due to be applied in circuit courts under the AAPA. 497 So.2d at 176-77; accord, Alabama Medicaid Agency v. Beverly Enters., 504 So.2d 1211, 1213 (Ala.Civ.App.1987) (‘this court, without a listing by the circuit court of its reasons for rejecting the Agency’s decision that reimbursement should be denied, cannot determine if the circuit court complied with the prescribed review standard’); Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989) (‘the [circuit] court cannot merely recite the statutory grounds for reversal or modification set forth in § 41-22-20(k)[, Ala.Code 1975,] when setting aside an agency’s findings’); see also Alabama Renal Stone Inst. v. Trustees of Susie Parker Stringfellow Mem. Hosp., 680 So.2d 358 (Ala.Civ.App.1996); State of

The circuit court’s judgment in this case not only contravenes § 41-22-20(0 insofar as it purports to reverse the decision of the Commission without as much as a reference to the substantial, disputed question of whether FOHC or Wathen had standing to seek administrative review of the Department’s order — a question of substantial import, as evidenced by the absence of a majority rationale in Alabama Department of Environmental Management v. Legal Environmental Assistance Foundation, Inc., 973 So.2d 369 (Ala.Civ.App.2007)—but it also usurps the primary jurisdiction of the Commission under Ala.Code 1975, § 22-22A-7(c)(3), to determine, in the first instance, whether the Department’s order was correct. It is well settled that “an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose [an] administrative agency [such as the Commission], after its error has been corrected, from enforcing the legislative policy committed to its charge.” FCC v. Pottsville Broad. Co., 309 U.S. 134, 145, 60 S.Ct. 437, 84 L.Ed. 656 (1940).

Accordingly, we vacate the judgment of the circuit court. We remand the cause for the circuit court (a) to determine whether FOHC or Wathen is a party or an aggrieved person entitled to judicial review of the administrative decision of the Commission so as to invoke that court’s subject-matter jurisdiction (see Alabama De partment of Environmental Management v. Legal Environmental Assistance Foundation, Inc., 973 So.2d at 380 (Pittman, J., concurring in the result, joined by Thomas, J.)); (b) if the court determines that such subject-matter jurisdiction exists, to determine whether FOHC or Wathen had standing to seek administrative review of the Department’s order; and (c) if the court determines that FOHC and/or Wathen indeed had standing to seek administrative review, to enter a judgment in compliance with § 41-22-20(Z) and to remand the cause to the Commission to decide the merits of the administrative appeal. We dismiss the cross-appeal taken by FOHC and Wathen as moot.

2090633 — JUDGMENT VACATED AND CAUSE REMANDED WITH INSTRUCTIONS; CROSS-APPEAL DISMISSED.

2090646 — JUDGMENT VACATED AND CAUSE REMANDED WITH INSTRUCTIONS.

BRYAN and THOMAS, JJ., concur.

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

      . Ex parte Marshall Durbin & Co. of Jasper, Inc., 537 So.2d 496, 498 (Ala.1988), held that if the Commission determines that a person who has sought to take an appeal from an administrative action of the Department lacks standing to do so, that determination will likewise constitute a final order subject to judicial review.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Forney L. McMICHAEL v. Ronda McMICHAEL.
    2090099.
    Court of Civil Appeals of Alabama.
    April 8, 2011.

      Christopher M. Hopkins of Campbell & Hopkins, Anniston, for appellant.
    Steven D. Adcock, Talladega; and Susan P. Billeaud, Birmingham, for appellee.
   BRYAN, Judge.

Forney L. McMichael appeals from an order of the Talladega Circuit Court finding him in contempt. We affirm.

In Ex parte McMichael, 62 So.3d 465, 466-70 (Ala.2010), the supreme court recited the factual and procedural background of this appeal:

“On August 14, 2009, Forney McMi-chael filed in the Calhoun Circuit Court a complaint for a divorce, seeking to terminate his marriage to Ronda McMi-chael. In the divorce complaint, Forney sought, among other things, a judgment awarding him ‘all right, title and interest’ in ‘MACS VACS LLC’ (‘the LLC’), a business located in Calhoun County. The parties own the LLC jointly with right of survivorship.
“The Calhoun Circuit Court entered an ex parte temporary restraining order (‘the Calhoun TRO’). In the Calhoun TRO, the court found that ‘[Forney], and the assets subject to the jurisdiction of the Court, particularly [the] LLC, and the parties’ real property and homes ..., may suffer irreparable harm without the entry of this Order’ and ordered, in pertinent part:
“ ‘1. That the parties be and are restrained from disposing, transferring, spending, giving away, or secreting any property, whether such property be real, personal, or mixed, tangible or intangible, which may be subject to the jurisdiction of the Court, including but not limited to money and other liquid financial assets, books and records of business and personal assets and liabilities, records and statements from banks and other financial institutions;
“‘2. That the parties are not restrained from the payment of routine, reasonable, and necessary ordinary living and business expenses but each must maintain, or have maintained in legible form, written records of such expenditures, such records to be made available to the other party for copying upon request.’
“On August 25, 2009, the Calhoun Circuit Court entered an order granting Ronda’s ‘motion to dismiss or transfer for improper venue’ and transferring the divorce action ‘in its entirety’ to the Talladega Circuit Court.
“On August 26, 2009 — the day after the Calhoun Circuit Court transferred the divorce action to the Talladega Circuit Court — Forney filed a declaratory-judgment action in the Calhoun Circuit Court, contending that Ronda’s ‘disruptive behavior and actions, as well as her breaches of her member’s fiduciary duty, have caused the LLC ... damage[ ] to its operation and business.’ In the complaint, Forney sought ‘a declaration of the rights and duties of the parties under the LLC’s Articles of Organization, Operating Agreement, and the Limited Liability Company Act[, codified at Ala.Code 1975, § 10-12-1 et seq.].’ Specifically, Forney sought an order declaring, among other things, that he is the ‘sole manager’ of the LLC; that Ronda ‘is a member of the LLC, but not the Manager of [the LLC]’; and that ‘[Forney] and only [Forney] can take the necessary and appropriate action(s) to operate the LLC.’
“On September 14, 2009, the Tallade-ga Circuit Court held a hearing on a motion filed by Ronda seeking to dissolve the Calhoun TRO. On September 28, 2009, the Talladega Circuit Court entered a consent order concerning various matters including matters regarding the LLC. In the consent order, the Talladega Circuit Court dissolved the Calhoun TRO; stated that Forney would ‘continue to be the Manager of [the] LLC, accompanied with the rights and duties as stated in the Operating Agreement of [the] LLC’; and stated that Ronda initially would assist with the preparation and filing of the LLC’s 2007 and 2008 federal and state tax returns and then ‘assume a role in the sales division of [the] LLC.’ The order further provided, in pertinent part:
“ ‘2. The parties be and are restrained from disposing, transferring, spending, giving away, or secreting any property, whether such property be real, personal or mixed, tangible or intangible, which may be subject to the jurisdiction of the Court, including but not limited to money and other liquid financial assets, books and records of business and personal assets and liabilities, records and statements from banks and other financial institutions, pendente lite.
“ ‘3. The parties are not restrained from the payment of routine, reasonable, and necessary ordinary living and business expenses but each must continue to maintain, or have maintained in legible form, written records of such expenditures, such records to be made available to the other party for copying upon request, pendente lite.’
“On September 29, 2009, Ronda moved the Calhoun Circuit Court to dismiss or, in the alternative, stay the declaratory-judgment action (‘motion to dismiss’). In the motion to dismiss, Ronda noted that the Talladega Circuit Court had entered an order on September 28, 2009, ‘with respect to the operation of [the] LLC’ and contended that the declaratory-judgment action ‘is an attempt to circumvent the jurisdiction of the Talladega County Circuit Court, which has properly exercised jurisdiction over [the LLC].’ Ronda further contended that ‘both Courts cannot exercise jurisdiction of ... [the] LLC, and Tal-ladega [Circuit Court] has the sole jurisdiction on this matter’; thus, Ronda argued, ‘this [declaratory-judgment action] must be dismissed or at least stayed.’ The Calhoun Circuit Court entered an order denying Ronda’s motion to dismiss on September 30, 2009.
“On October 1, 2009, the Calhoun Circuit Court held a hearing on a motion filed by Forney seeking a pendente lite order. On October 2, 2009, the Calhoun Circuit Court entered an order providing, in pertinent part, that Forney is the manager of the LLC, which, the court noted, ‘is consistent with the Order entered by consent in the parties’ divorce action [in the Talladega Circuit Court]’; that, as manager of the LLC, Forney has ‘the authority to allow [Ronda] on the LLC business premises ... and the authority to tell her she cannot come onto those premises or must leave those premises’; that Ronda’s duties in the LLC’s sales department ‘do[ ] not require her presence on the LLC’s premises’; and that Ronda ‘can come onto the business premises if invited by the Manager, and she must leave if directed to do so by the Manager.’
“The Calhoun Circuit Court’s October 2, 2009, order also noted that, during the previous day’s hearing, it had denied Ronda’s oral motion to dismiss, in which she argued that ‘the LLC does not exist’ because, Ronda said, the LLC’s articles of organization were improperly filed with the Probate Judge of Calhoun County rather than with the Probate Judge of Talladega County, which is the county where the registered agent for the LLC, Forney, is located. In the order, the Calhoun Circuit Court stated:
“ ‘The Court denied [Ronda’s] Motion to Dismiss. Ala.Code [1975,] § 10 — 12—12(a)[,] provides that an LLC’s Articles of Organization are to be delivered to the Probate Judge, and if the probate judge finds that the articles of organization conform to law, the probate judge shall, pursuant to Ala.Code [1975,] § 10-12-12(a)(l)[,] endorse on the articles of organization and on each of the copies the word “Filed” with the hour, day, month and year of filing, pursuant to Ala.Code [1975,] § 10-12-12(a)(2), file the Articles of Organization in the office of the probate judge and certify the two copies. Ala.Code [1975,] § 10-12-14(a)[,] provides that “[U]pon the filing of the articles of organization with the probate judge, the limited liability company’s existence shall begin.” Thus, if the articles are filed by the probate judge, the LLC exists. The Court has [not] found, nor has counsel cited the Court to, anything in the Limited Liability Act[,] Ala.Code [1975,] § 10-12-1 et seq.[,] that causes the LLC’s existence to cease, or not begin, if the organizers submit the wrong address for the registered office and registered agent. The statutory scheme requires scrutiny by the Probate Judge to see that the articles conform to law. If the Probate Judge fails to catch such an error, nevertheless the LLC’s existence begins when the Probate Judge stamps and files the Articles of Organization. Accordingly the Motion to Dismiss was denied. The Court also notes, in the alternative, that [Ronda] would be estopped to deny the LLC’s existence when she seeks the Court to appoint her to manage the LLC pendente lite, that the parties would be estopped by their operation as an LLC for years, that the parties had acquiesced to the filing in Calhoun County, that being within the city limits of Oxford, which itself is in Calhoun County, is a sufficient connection to Calhoun County, that numerous federal and state governmental entities have recognized the LLC’s existence, and that it would be chaotic for the Court to declare a nullity an asset that the parties are contesting in their Talladega County divorce. If the Talladega County Family/Circuit Court acquired jurisdiction over the LLC as marital property subject to distribution in a Judgment of Divorce, it would not be for this Court to declare that asset a nullity.’

“On October 2, 2009, Ronda filed a petition for rule nisi in the Talladega Circuit Court, alleging that Forney had violated the terms of the Talladega Circuit Court’s September 28, 2009, consent order. Specifically, Ronda alleged that Forney had violated the consent order by ‘transferring] $100,000 from [an] ... LLC account and depositing] said monies into an account at a banking institution without [Ronda’s] consent’; by ‘instructing] [Ronda] not to come on the premises of [the] LLC’; and by attempting to have Ronda arrested ‘when she entered the [LLC’s] premises for work purposes.’ The petition requested, among other things, that the Talladega Circuit Court require Forney to appear and to show cause why he should not be found in contempt of the consent order.

“On October 5, 2009, the Talladega Circuit Court entered an order setting Ronda’s petition for rule nisi for a hearing on October 6, 2009. Forney failed to appear for the hearing; he contends that he failed to appear because he did not receive proper notice of the hearing. In any event, on October 8, 2009, the Talladega Circuit Court entered an order finding Forney in contempt of the September 28, 2009, consent order. Specifically, the Talladega Circuit Court found that Forney ‘willfully failed and refused to abide by this Court’s Order by withdrawing $100,000 from [the LLC’s] account at Region’s Bank’ and that Forney ‘willfully failed and refused to abide by this Court’s Order by instructing [Ronda] not to come onto the premises of [the LLC] on three (3) occasions ... and by seeking law enforcement intervention to enforce same.’

“Forney moved the Talladega Circuit Court to vacate its October 8, 2009, order finding him in contempt of the consent order. In the motion, Forney argued, among other things, that the Talladega Circuit Court lacked subject-matter jurisdiction over the property of the LLC, and, thus, Forney argued, the court’s order finding him in contempt for transferring $100,000 from the LLC’s Regions Bank account is void. Specifically, Forney argued that the Talladega Circuit Court, while presiding over the divorce action, could not properly exercise subject-matter jurisdiction over the property of the LLC, i.e., the $100,000, because, For-ney said, the property of the LLC belongs not to its members (Forney and Ronda) but to the LLC itself. Forney claimed that the Talladega Circuit Court acquired subject-matter jurisdiction over the parties’ ‘membership interest[s]’ in the LLC but not over the property of the LLC. In support of his argument, Forney cited Ala.Code 1975, § 10-12-23(b), which provides:

“‘All property originally contributed to the limited liability company or subsequently acquired by a limited liability company by purchase or otherwise is limited liability company property. A member has no interest in specific limited liability company property.’

“Relying on § 10-12-23(b), Forney contended that the Talladega Circuit Court’s consent order ‘could not reach’ the property of the LLC. For all that appears, Forney’s motion to vacate the Talladega Circuit Court’s October 8, 2009, order finding him in contempt of the consent order was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

“On October 9, 2009, Ronda filed in the Calhoun Circuit Court a motion for a change of venue, seeking a transfer of the declaratory-judgment action from the Calhoun Circuit Court to the Tal-ladega Circuit Court; it appears that the Calhoun Circuit Court did not rule on that motion.

“The parties filed respective petitions for writs of mandamus in the Court of Civil Appeals; the Court of Civil Appeals transferred the petitions to this Court for lack of subject-matter jurisdiction. This Court stayed all proceedings in both the Calhoun Circuit Court and the Talladega Circuit Court pending resolutions of these petitions....

(Some footnotes omitted.)

The supreme court proceeded in Ex parte McMichael to decide the merits of Ronda’s mandamus petition and to transfer Forney’s mandamus petition to this court. With respect to Ronda’s mandamus petition, the supreme court stated:

“Ronda presents two issues in her petition for a writ of mandamus. First, she contends that this Court should issue the writ and direct the Calhoun Circuit Court to rescind all orders regarding the operation of the LLC, to make no further orders regarding its operation, and to dismiss the action pending in that court or stay the proceeding there pending resolution of the divorce action in the Talladega Circuit Court. Specifically, Ronda contends that, ‘[sjince the Talladega [Circuit] Court has the powers to enter orders regarding the assets of the parties to the divorce action, then it should also enter such orders over the parties’ LLC, and not the Calhoun Circuit Court.’ Second, Ronda contends that, under Ala.Code 1975, § 10-12-9, an LLC ‘does not come into legal existence’ until its articles of organization are filed with the probate judge of the county in which the registered agent of the LLC is located; thus, Ronda says, because the LLC’s articles of organization were not filed in the county of Forney’s residence (Talladega County) until September 30, 2009 ..., the Calhoun Circuit Court may not exercise jurisdiction over the LLC.
“At the outset, we note that there is no dispute as to the Talladega Circuit Court’s subject-matter jurisdiction over the divorce action or as to the Calhoun Circuit Court’s subject-matter jurisdiction over the declaratory-judgment action. Rather, the threshold issue for this Court’s consideration is whether Forney may simultaneously maintain the divorce action in the Talladega Circuit Court and the subsequently filed declaratory-judgment action in the Calhoun Circuit Court. Ronda contends in her mandamus petition, as she did in her motion to dismiss the declaratory-judgment action, that the Talladega Circuit Court, which was the first of the two courts to assume jurisdiction over these issues, is the proper forum in which to resolve both the divorce action and the issues raised in the declaratory-judgment action, i.e., the parties’ dispute concerning the management and operation of the LLC. We agree.
“In Ex parte Liberty National Life Insurance Co., 631 So.2d 865 (Ala.1993), this Court stated:
“ ‘ “It is uniformly held that where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgment or decrees....
“ ‘ “... ‘It is a familiar principle that when a court of competent jurisdiction has become possessed of a case its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no court of coordinate authority is at liberty to interfere with its action.... ’
“ ‘ . ‘All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts, and to preserve in harmony their relations to each other.’ ”
‘Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938).
“‘These principles have been restated numerous times:
“ ‘ “[WJhere two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.”
“‘Ex parte State ex rel. Ussery, 285 Ala. 279, 281, 231 So.2d 314, 315 (1970)....’
631 So.2d at 867.
“In this case, the concurrent exercise of jurisdiction by the Talladega Circuit Court and the Calhoun Circuit Court has resulted in inconsistent orders. The Calhoun Circuit Court’s October 2, 2009, order provides that Forney is the manager of the LLC and, as the manager, that Forney may, among other things, refuse Ronda entry onto the premises of the LLC and order her to leave those premises. The Talladega Circuit Court’s September 28, 2009, consent order also provides that Forney is the manager of the LLC; however, it does not authorize Forney to make decisions regarding if and when Ronda may enter upon the premises of the LLC. As a result, Forney has been found to be in contempt of the consent order for, among other things, instructing Ronda not to come upon the premises of the LLC; however, under the Calhoun Circuit Court’s October 2, 2009, order, it is permissible for Forney to exclude Ronda from the premises of the LLC. This is the very type of conflict the principle set forth in the above-quoted authorities seeks to avoid. See Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d at 867 (‘ “ ‘All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts....”” (quoting Ex parte Burch, 236 Ala. at 665, 184 So. at 697 (emphasis added))).
“We conclude that, because the Tal-ladega Circuit Court initially exercised jurisdiction over the parties and them property in the divorce action, it must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals; thus, the Calhoun Circuit Court erred in denying Ronda’s motion to dismiss insofar as it denied the alternative relief requested in the motion, namely, an order staying the declaratory-judgment action pending resolution of the divorce action in the Talladega Circuit Court. See Ex parte Liberty Nat’l Life Ins. Co., supra; see also Ex parte Murphy, 886 So.2d 90, 94 (Ala.2003) C “It must be recognized ... that all matters related to a marriage may come within the authority of the court sitting in equity when the parties submit themselves to its jurisdiction by the filing of a suit for divorce.” ’ (quoting Oliver v. Oliver, 431 So.2d 1271, 1276 (Ala.Civ.App.1983), citing in turn Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967) (emphasis added))).
“Accordingly, Ronda’s [mandamus] petition ... is due to be granted as to this issue.”

62 So.3d at 470-72.

The supreme court held that it did not have jurisdiction to review Forney’s mandamus petition, transferred that mandamus petition to this court, and held that we should treat that mandamus petition as a timely filed appeal. 62 So.3d at 473. As the supreme court stated in Ex parte McMichael:

“Forney presents seven issues in his mandamus petition; those issues can be combined into the following two issues: (1) Whether the Talladega Circuit Court had subject-matter jurisdiction over the property of the LLC such that it could properly find Forney in contempt of its September 28, 2009, consent order for, among other things, transferring $100,000 from an LLC bank account; and (2) if the Talladega Circuit Court did have subject-matter jurisdiction over the property of the LLC, whether the court erred by finding Forney in contempt of that court’s September 28, 2009, consent order.”

62 So.3d at 471.

With respect to the first issue, we conclude that the Talladega Circuit Court had subject-matter jurisdiction to find For-ney in contempt for violating its September 28, 2009, consent order. In adjudicating Ronda’s mandamus petition in Ex parte McMichael, the supreme court expressly held that the Talladega Circuit Court had subject-matter jurisdiction over the LLC:

“Ronda contends in her mandamus petition, as she did in her motion to dismiss the declaratory-judgment action, that the Talladega Circuit Court, which was the first of the two courts to assume jurisdiction over [the issues raised in the declaratory-judgment action], is the proper forum in which to resolve both the divorce action and the issues raised in the declaratory-judgment action, i.e., the parties’ dispute concerning the management and operation of the LLC. We agree.”

62 So.3d at 471. Moreover, the supreme court implicitly held that the Talladega Circuit Court’s September 28, 2009, consent order was a lawful order:

“In this case, the concurrent exercise of jurisdiction by the Talladega Circuit Court and the Calhoun Circuit Court has resulted in inconsistent orders. The Calhoun Circuit Court’s October 2, 2009, order provides that Forney is the manager of the LLC and, as the manager, that Forney may, among other things, refuse Ronda entry onto the premises of the LLC and order her to leave those premises. The Talladega Circuit Court’s September 28, 2009, consent order also provides that Forney is the manager of the LLC; however, it does not authorize Forney to make decisions regarding if and when Ronda may enter upon the premises of the LLC. As a result, Forney has been found to be in contempt of the consent order for, among other things, instructing Ronda not to come upon the premises of the LLC; however, under the Calhoun Circuit Court’s October 2, 2009, order, it is permissible for Forney to exclude Ronda from the premises of the LLC. This is the very type of conflict the principle set forth in the above-quoted authorities seeks to avoid. See Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d at 867 (‘ “ ‘All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts(quoting Ex parte Burch, 236 Ala. at 665, 184 So. at 697 (emphasis added))).
“We conclude that, because the Tal-ladega Circuit Court initially exercised jurisdiction over the parties and their property in the divorce action, it must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals.... ”

62 So.3d at 472. We are bound by those holdings of the supreme court. See § 12-3-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals .... ”). Because the Talladega Circuit Court had subject-matter jurisdiction over the LLC, its September 28, 2009, consent order was a lawful order and the Talladega Circuit Court had the inherent power to find Forney in contempt for violating that order. See Hall v. Hall, 485 So.2d 747, 749 (Ala.Civ.App.1986) (“As part of its inherent power, a court of record may punish for contemptuous failure to abide by its lawful orders.”). Therefore, the Talladega Circuit Court had subject-matter jurisdiction to find Forney in contempt for violating its September 28, 2009, consent order.

With respect to the issue whether the Talladega Circuit Court erred by finding Forney in contempt for violating that court’s September 28, 2009, consent order, Forney first argues that he was denied due process because, he says, Ronda’s petition for a rule nisi initiated a new proceeding that was separate and independent from the divorce action and, therefore, required that he be personally served with a summons and a copy of the petition in accordance with Rule 4(c)(1), Ala. R. Civ. P., before the Talladega Circuit Court held a hearing regarding that petition. However, in Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007), this court held that the filing of a contempt petition seeking a finding of constructive contempt based on an alleged violation of an interlocutory order (as opposed to an alleged violation of a final judgment) does not initiate a new proceeding that is separate and independent from the one in which the trial court entered the interlocutory order on which the contempt petition is based. Therefore, Forney’s argument that Ronda’s filing of her petition for a rule nisi initiated a new proceeding that was separate and independent from the divorce action has no merit.

Moreover, because the filing of Ronda’s petition for a rule nisi did not initiate a new proceeding, Rule 5(b), Ala. R. Civ. P., governed service on Forney of Ronda’s petition and the order setting that petition for a hearing. In pertinent part, Rule 5(b) provides:

“Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made ... by mailing it to the attorney or party at the attorney’s or party’s last known address .... Service by mail is complete upon mailing.”

It is undisputed that Ronda’s petition was served on Forney’s attorneys by mail on October 2, 2009. Accordingly, there is no merit to Forney’s argument that he was denied due process because he was not personally served with a summons and a copy of the petition in accordance with Rule 4(c)(1) before the Talladega Circuit Court held a hearing regarding that petition on October 6, 2009.

Forney also argues that he was denied due process because he did not receive notice of the October 6, 2009, hearing regarding Ronda’s petition for a rule nisi. However, it is undisputed that his attorneys received notice of that hearing and that one of his attorneys attended that hearing. In Edwards v. Edwards, [Ms. 2081138, Aug. 6, 2010] - So.3d -, -(Ala.Civ.App.2010), this court stated:

“[N]otice of a trial date given to a party’s attorney is generally accepted to constitute notice of the trial date to the party. See Shirley v. McDonald, 220 Ala. 50, 53, 124 So. 104, 106 (1929) (‘[CJounsel’s knowledge ... of the date of trial, must be imputed to [the] defendant as a matter of law....’); Anderson v. Anderson, 250 Ala. 427, 430, 34 So.2d 585, 587 (1948) (when the plaintiff’s attorney had notice of all the proceedings, our supreme court concluded that the plaintiff also had notice of the proceedings); and Ex parte Cox, 253 Ala. 647, 650, 46 So.2d 417, 420 (1950) (‘It is thoroughly well established that [the] defendant’s ignorance of the date of trial or of the order of the court as to the definite time for disposing of the case is not a proper ground for a new trial, particularly where [the] defendant’s attorney of record was informed by the court or clerk as to the time set for its disposition.’). See also Sanders v. Flournoy, 640 So.2d 933, 939 (Ala.1994) (‘Knowledge of the attorney will be imputed to the client if the knowledge comes to the attorney while engaged in a service for the client after the attorney-client relationship has commenced.’). It was undisputed that the mother’s attorney had received notice of the time and date of the hearing and that the mother’s attorney was present for that hearing. Applying those general principles of law to the present case, we cannot conclude that the mother did not receive adequate notice of the time and date of the hearing.”

Thus, in the case now before us, we cannot reverse the October 8, 2009, order of the Talladega Circuit Court finding For-ney in contempt on the ground that For-ney did not receive notice of the hearing regarding Ronda’s petition for a rule nisi because it is undisputed that his attorneys received notice of that hearing and that one of those attorneys appeared at that hearing. See Edwards.

Forney also argues that he was denied due process because, he says, (1) the October 5, 2009, order setting a hearing on Ronda’s petition for a rule nisi did not inform him that he was subject to incarceration if he was found in contempt and (2) the Talladega Circuit Court did not afford his attorneys sufficient time to prepare and present his defense to the allegations in Ronda’s petition. However, Forney has not cited any legal authority supporting those arguments.

“It is well settled that ‘ “[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.” ’ Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).”

Mantiply v. Mantiply, 951 So.2d 638, 653 (Ala.2006). Therefore, we decline to reverse the Talladega Circuit Court’s October 8, 2009, order finding Forney in contempt on the grounds that the October 5, 2009, order setting a hearing on Ronda’s petition for a rule nisi did not inform him that he was subject to incarceration if he was found in contempt and that the Tal-ladega Circuit Court did not afford his attorneys sufficient time to prepare and present his defense to the allegations in Ronda’s petition. See Mantiply.

Forney also argues that the Talladega Circuit Court erred in finding him in contempt because, he says, paragraphs 4 and 5 of its October 8, 2009, order finding him in contempt are not supported by the evidence. In paragraphs 4 and 5, the Tal-ladega Circuit Court found:

“4. That [Forney] has willfully failed and refused to abide by this Court’s Order by withdrawing $100,000.00 from a Mac’s Vacs, LLC account at Region’s Bank. The whereabouts of said money is not known, as no evidentiary proof was introduced by [Forney] regarding this transaction which would indicate the location of the funds. The Court finds that said withdrawal was not for routine, reasonable and necessary business expenses.
“5. That [Forney] has willfully failed and refused to abide by this Court’s Order by instructing [Ronda] not to come onto the premises of Mac’s Vacs, LLC, ... on three (3) occasions by and through counsel, and by seeking law enforcement intervention to enforce same. This Court’s Order eliminated the provision of the Calhoun [Circuit Court] order of August 14, 2009, expressly prohibiting [Ronda] from entering said premises; and [Forney] has no right to prevent the owner of said property, being [Ronda], from entering the premises pursuant to his title as Manager.”

However, the record before us does not contain either a transcript of the ore tenus evidence the Talladega Circuit Court received at the October 6, 2009, hearing on Ronda’s petition for a rule nisi or a statement of that evidence pursuant to Rule 10(d), Ala. RApp. P.

“An appellate court is confined in its review to the appellate record, that record cannot be ‘changed, altered, or varied on appeal by statements in briefs of counsel,’ and the court may not ‘assume error or presume the existence of facts as to which the record is silent.’ Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006). Accordingly, when, as in this case, ‘oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule' 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.’ Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala.Civ.App.1991).”

Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009). Thus, in the case now before us, because the record does not contain either a transcript of the ore tenus evidence the Talladega Circuit Court received at the October 6, 2009, hearing regarding Ronda’s petition for a rule nisi or a Rule 10(d) statement of that evidence, we must conclusively presume that that evidence was sufficient to support the findings in paragraphs 4 and 5.

Finally, Forney argues that the Tallade-ga Circuit Court erred in finding him in contempt because, he says, the Talladega Circuit Court lacked subject-matter jurisdiction over the LLC. However, we have already explained above why that argument has no merit.

Accordingly, we affirm the October 8, 2009, order of the Talladega Circuit Court finding Forney in contempt.

AFFIRMED.

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

      " 5 Forney’s counsel, Christopher M. Hopkins, was present at the October 6, 2009, hearing.”

      . Rule 70A(a)(2)(B), Ala. R. Civ. P., states that " '[c]onstructive contempt’ means any criminal or civil contempt other than a direct contempt.” Rule 70A(a)(2)(A), Ala. R. Civ. P., states:
      " 'Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.”


author: THOMPSON, Presiding Judge.

text:
    B.E.H., JR. v. STATE of Alabama ex rel. M.E.C.
    2100151.
    Court of Civil Appeals of Alabama.
    April 8, 2011.

      Cheryl Baswell-Guthrie of Baswell-Guthrie, P.C., Huntsville, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for ap-pellee.
   THOMPSON, Presiding Judge.

On January 27, 2010, the State of Alabama, on behalf of M.E.C. (“the mother”), filed a complaint pursuant to the Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala.Code 1975 (“UIFSA”), in the Madison Juvenile Court against B.E.H., Jr. (“the father”). The complaint, as subsequently amended, sought to register for enforcement a judgment entered in 1978 by a Texas court divorcing the mother and the father (“the Texas divorce judgment”). That judgment had required the father to pay $30 per week to the mother as support for the parties’ then minor child, who had been born in June 1972. The complaint alleged that the State of Texas had sought to have the Texas divorce judgment enforced by an Alabama court in 1987 but that the Alabama court had determined that the Texas court had not acquired personal jurisdiction over the father and, as a result, that the child-support provisions of the Texas divorce judgment were not enforceable. The complaint indicated that the Alabama court had entered a child-support order against the father requiring him to pay $120 per month as child support beginning in April 1988. The complaint sought a judgment declaring that the controlling order was the support order issued by the Alabama court in 1988, determining the amount of the father’s child-support arrearage and interest thereon, and ordering the father to pay that amount. The father filed an answer to the complaint.

The juvenile court set the case for trial on September 22, 2010. On September 21, 2010, the father filed a motion to continue the hearing because his counsel was ill. The juvenile court granted the motion and continued the trial until September 29, 2010.

On September 29, 2010, only counsel for the State of Alabama appeared for the scheduled trial; neither the mother, the father, nor the father’s counsel appeared. At the proceeding, counsel for the State of Alabama moved for the entry of a default judgment against the father in the amount of $5,925.44, representing what the State of Alabama alleged was the recoverable amount of the father’s child-support ar-rearage and interest on the arrearage.

On September 30, 2010, the juvenile court entered a default judgment against the father. In its judgment, the juvenile court made the following findings of fact:

“1. The parties were divorced in Texas in 1978. They had one child ... whose date of birth is June 21, 1972.
“2. [The mother] had moved to Texas some time prior to the divorce but [the father] did not live in Texas at the time of the divorce and apparently had no minimum contacts with the state. The divorce [judgment], however, ordered him to pay child support in the amount of $30 per week. There appears to have been no personal jurisdiction over [the father] by the State of Texas thus making the support order invalid as to him in Alabama.
“3. In 1978 [ (sic) ], the state of Texas asked the State of Alabama to enforce the Texas divorce. It was determined that [the father] had never lived in Texas and that the order for child support was therefore not enforceable in Alabama. Instead, a Petition for Support was filed and an Order of Support subsequently entered on April 29, 1988, ... which required [the father] to pay $120 per month until the minor child emancipated.
“4. At some point, the State of Texas asked [the Alabama Department of Human Resources] to close its case and stop collecting. It is unclear as to why this occurred when there was still a valid Alabama Order, but DHR did stop collection.
“5. In January 2010, the State of Texas asked Alabama to file the instant case to determine the controlling order and to collect any arrears owed under that order. The State of Texas contends some $44,000 + is still owed under the 1978 divorce. The State of Alabama contends that a total of $5,925.44 is still collectable under the Alabama order.
“6. The age of emancipation in Texas is 18 years of age or until the minor child finishes high school. The child finished high school in June 1990, the same month he turned 18. The age of emancipation in Alabama is 19.
“7. The statute of limitations for collection of a Judgment in Texas is 10 years. The time in Alabama is 20 years. Under UIFSA, the longer of the statutes is applicable; thus, 20 years would be the applicable time period for which support can be sought. As this action was filed in January 2010, the time frame under consideration here would be support that has accrued since January 1990. This is based on the premise that each payment of child support becomes a final judgment when it has not been paid.”

Based on those findings of fact, the juvenile court held that the child-support order issued by the Alabama court in 1988 was the controlling order; that, since January 1990, $1,664 in child support had accrued as unpaid child support, taking into account all the credits to which the father was entitled; and that interest of $4,261.44 had accrued on that amount. The juvenile court ordered the father to pay the child-support arrearage and interest at a rate of $120 per month. As to the parties’ notice of the hearing, the judgment stated that notice had been sent to counsel for both parties that the trial had been continued until September 29, 2010.

On October 12, 2010, the father filed a postjudgment motion that we -construe as a motion to set aside the default judgment. The juvenile court denied that motion, and the father filed an appeal to the Madison Circuit Court. Shortly after he filed that appeal, it was discovered that an audiotape recording of the September 29, 2010, hearing had been made. Thus, the father moved the circuit court to transfer the appeal to this court based on Rule 28(A), Ala. R. Juv. P., which provides for appeals directly to this court from the juvenile court when, among other things, “[a] record certified as adequate by the juvenile court judge or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto.” Rule 28(A)(1)(a), Ala. R. Juv. P. That motion was granted. Subsequently, the juvenile court certified that the record was adequate.

On appeal, the father contends that the juvenile court should have granted his postjudgment motion and set aside the default judgment. “The applicable standard of review in appeals stemming from a trial court’s granting or denying a motion to set aside a default judgment is whether the trial court’s decision constituted an abuse of discretion.” Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 603 (Ala.1988). “[T]his court and the Supreme Court have reiterated that the trial court ‘should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court.’ Hutchinson v. Hutchinson, 647 So.2d 786, 788 (Ala.Civ.App.1994).” DeQuesada v. DeQuesada, 698 So.2d 1096, 1098 (Ala.Civ.App.1996).

“Our supreme court has held that the trial court’s use of discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala.1987). Our supreme court has also established guidelines to assist a trial judge in exercising his discretion.
“ ‘[A] trial court’s broad discretionaiy authority under Rule 55(c)[, Ala. R. Civ. P.,] should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’
“Kirtland [v. Fort Morgan Auth. Sewer Serv., Inc.], 524 So.2d [600] at 605 [ (Ala.1988) ].”

Martin v. Crumpton, 883 So.2d 700, 703 (Ala.Civ.App.2003).

The father argues that he presented a meritorious defense to the State of Alabama’s action in his motion to set aside the default judgment. “To present a meritorious defense, for Rule 55(c) purposes, does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense.” Sampson v. Cansler, 726 So.2d 632, 634 (Ala.1998). Furthermore, “[t]he defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case.” Kirtland, 524 So.2d at 606.

The father asserts that he has numerous meritorious defenses to the State of Alabama’s action against him. Among other things, he argues that the State of Texas had garnished his federal income-tax refunds to be used for child support but that those amounts had not been credited against the amount of child support the State of Alabama was seeking to collect from him. He also argues that the State of Alabama had expressly waived its right to seek further child-support payments from him and had refused to accept child-support payments from him. The father raised both of those arguments in his motion to set aside the default judgment. As to the latter argument, we note that the juvenile court itself found, in its judgment, that the State of Alabama, at the request of the State of Texas, had stopped collecting child support payments from the father.

We conclude that the father demonstrated to the juvenile court in his motion to set aside the default judgment that he was prepared to present plausible defenses to the State of Alabama’s action and that the defenses he proffered to the juvenile court were of such merit that, if litigated, they could have altered the outcome of the case. The father did not set forth those defenses in his motion as “bare legal conclusions without factual support,” but, instead, he cited “relevant legal grounds substantiated by a credible factual basis.” Kirtland, 524 So.2d at 606. As a result, this Kirtland factor weighs in favor of setting aside the default judgment.

The father also asserts that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. “ ‘[T]he prejudice warranting denial of a Rule 55(c) motion must be substantial.’ ” Phillips v. Randolph, 828 So.2d 269, 276 (Ala.2002) (quoting Kirtland, 524 So.2d at 607).

“[W]hen a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. If the movant makes a prima facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside.”

Phillips v. Randolph, 828 So.2d at 278.

In the present case, the record contains no indication that any party would be substantially prejudiced by the setting aside of the default judgment, especially given that apparently no one has attempted to collect the allegedly outstanding child support from the father for a child who reached the age of majority almost 20 years ago. However, it was the father’s obligation, in seeking to have the default judgment set aside, to make a prima facie case showing that no prejudice would befall the State of Alabama or the mother if that motion were granted. The father failed to do so. Indeed, the father never addressed that issue in his motion to set aside the default judgment. As a result, this factor weighs in favor of denying the father’s motion to set aside the default judgment.

Finally, the father argues that the default judgment was not the result of any culpable conduct on his part. Discussing this final Kirtland factor, this court has written:

“Last, the trial court should consider the culpability of the defaulting party’s conduct. [Kirtland, 524 So.2d at 607]. ‘Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside.’ Id. ‘Negligence by itself is insufficient.’ Id. Willful and bad-faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness. Id. at 608. ‘The strong policy of resolving legal issues on the merits must yield when a defaulting party has committed intentional acts that are contrary to procedural rules.’ Id. ‘However, a defaulting party’s reasonable explanation for inaction and noncompliance may preclude a finding of culpability.’ Id.”

Weaver v. Weaver, 747 So.2d 909, 912 (Ala.Civ.App.1999).

The father argues that neither he nor his counsel were notified by the court that, when the juvenile court granted his motion to continue the trial, the trial had been set for a date approximately a week later. The juvenile court stated in its default judgment that counsel for the State of Alabama and counsel for the father were notified of the September 29, 2010, trial date, but the father argues that nothing in the record indicates that the juvenile court informed any of the parties or their counsel of the new trial date.

In Weaver, one of the parties — the husband — failed to answer a complaint and the trial court entered a default judgment against him. After the trial court denied a motion to set aside that judgment, the husband appealed, and this court reversed the default judgment. In analyzing whether the husband had acted culpably in failing to answer the complaint, this court wrote:

“In the instant case, the record is not determinative of the issue whether the husband committed culpable conduct in failing to answer. However, we find in the record no evidence of intentional disregard for court orders and no evidence of a disrespect for judicial authority. The husband promptly filed his motion to set aside the default judgment, containing a statement of a meritorious defense and supported by evidence; and he complied with further discovery orders of the court pending the hearing on his motion to set aside the default judgment. The husband’s actions appear to fall into the category of negligence, rather than culpable conduct.”

Weaver, 747 So.2d at 912.

In the present case, the father has provided a plausible excuse for his failure to have appeared for the trial, i.e., that the juvenile court had not informed him of the new trial setting despite the fact that it had given him notice when the case was set for trial on previous occasions. The record does not contain any evidence of “intentional disregard for court orders” or “disrespect for judicial authority.” Id. The father, upon learning of the default judgment, promptly filed a motion to set aside the judgment, and, as previously noted, that motion contained at least two meritorious defenses. At most, the father’s failure to appear for trial was negligent; it did not rise to the level of culpable conduct.

We recognize, as the State of Alabama argues, that every party is responsible for keeping track of his or her case and that the juvenile court does not have a duty to notify the parties of a case setting. See Burleson v. Burleson, 19 So.3d 233, 239 (Ala.Civ.App.2009). However, even if we accept that the father faded in his duty of checking the case file and discovering that the trial date had been continued, it would not change our conclusion that the father’s actions constitute negligence at most and do not rise to a level of culpability that would support the denial of a motion to set aside a default judgment. As a result, the last Kirtland factor does not weigh against setting aside the default judgment.

Based on the foregoing, we conclude that the father presented meritorious defenses to the State of Alabama’s action and that the entry of the default judgment was not a result of culpable conduct on the father’s part. In light of this, and under the circumstances of this case, we cannot conclude that the father’s failure to demonstrate prejudice to the mother or the State of Alabama, standing alone, was a sufficient basis on which the juvenile court could have exercised its discretion to deny the father’s motion to set aside the default judgment. See Fuller v. Fuller, 991 So.2d 285, 290 (Ala.Civ.App.2008) (“‘[A] failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief.’ ” (quoting Sumlin v. Sumlin, 931 So.2d 40, 48 (Ala.Civ.App.2005))). As a result, we conclude that the juvenile court erred to reversal in failing to set aside the default judgment. We reverse the juvenile court’s judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . Although the father titled his motion as one seeking "reconsideration” of the judgment pursuant to Rule 59, Ala. R. Civ. P., the substance of the motion indicates that the father was seeking to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P. "It is well settled that '[tjhis Court will look at the substance of a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.’ ” Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala.2009) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005)).

      . The State of Alabama counters that, "[d]ur-ing the hearing the State presented a spreadsheet ... giving credit for child support ... for money collected by the State of Texas in February 2010.” The State of Alabama's attorney stated at the trial that the spreadsheet reflected a credit for “a tax intercept in February of 2010 that was made by the State of Texas.” However, the spreadsheet was not made part of the record, and statements of attorneys do not constitute evidence. See Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) ("The unsworn statements, factual assertions, and arguments of counsel are not evidence."). Moreover, as stated previously, in determining whether the father has set forth a meritorious defense, we are not deciding whether the father would necessarily prevail at a trial on the merits, only whether he is prepared to present a plausible defense. See Sampson, 726 So.2d at 634.


text:
    Michael D. BROOKS v. FRANKLIN PRIMARY HEALTH CENTER, INC., and Charles White.
    2100224.
    Court of Civil Appeals of Alabama.
    April 15, 2011.

      Willie J. Huntley, Jr., of The Huntley Firm, P.C., Mobile, for appellant.
    Matthew C. McDonald and Kirkland E. Reid of Jones, Walker, Waechter, Pointev-ent, Carrere & Denegre, LLP, Mobile, for appellees.
   THOMPSON, Presiding Judge.

Michael D. Brooks appeals from a judgment ordering his former employer, Franklin Primary Health Center, Inc. (“Franklin Health”), and its chief executive officer, Charles White (hereinafter referred to collectively as “Franklin”), to pay him nominal damages of $100 on his claim of breach of contract against Franklin.

This is the second time these parties have been before this court. In Brooks v. Franklin Primary Health Center, Inc., 53 So.3d 932 (Ala.Civ.App.2010) (“Brooks I ”), Brooks appealed a summary judgment entered in favor of Franklin on claims of breach of contract and fraud that Brooks had asserted against Franklin arising out of the termination of Brooks’s employment as an obstetrician-gynecologist (“OB-GYN”) with Franklin Health. This court affirmed the summary judgment as to the fraud claim but reversed it as to the breach-of-contract claim, holding that, as to the breach-of-contract claim, “Franklin failed to meet its burden to make a prima facie showing that there is no genuine issue of material fact and that it was entitled to a judgment as a matter of law.” Id. at 937. Accordingly, the cause was remanded to the trial court for further proceedings. Id. at 938.

On remand, Franklin filed a motion asking the trial court to enter an award for nominal damages in favor of Brooks on the breach-of-contract claim. The trial court granted the motion and entered a judgment awarding Brooks nominal damages in the amount of $100. Brooks appealed.

Brooks argues that because the summary judgment was reversed as to his claim against Franklin alleging breach of contract, he is entitled to have a jury determine whether Franklin breached the employment agreement it had with Brooks and, if so, to determine the amount of damages he is to receive.

In asking the trial court to award Brooks nominal damages, Franklin asserted that, in reversing the summary judgment as to the breach-of-contract claim, this court “determined that even though ‘Brooks was unable to prove damages in this case’ ..., [the trial] court should not have entered [a] summary judgment on the basis of lack of damages; rather [the trial] court should have entered an award of nominal damages instead.” Franklin disputed that it had in fact breached the employment agreement, but, it said, “there is little reason to burden the Court or the parties with a trial limited to nominal damages.” Therefore, Franklin said, it consented to a judgment being entered against it for nominal damages, which, it said, was in accordance with this court’s opinion in Brooks I.

In Brooks I, supra, Brooks had argued to this court that the trial court’s summary judgment on the breach-of-contract claim was improper because, he said, genuine issues of material fact existed as to whether he fulfilled his obligations under the terms of the agreements and whether Franklin properly terminated his employment for cause. Brooks I, 53 So.3d at 935. We agreed with Brooks. In addressing his arguments, this court wrote, in pertinent part, the following:

“We note that the trial court did not set forth the grounds upon which it entered the summary judgment. In its motion for a summary judgment, Franklin argued that because Brooks turned down Franklin’s offer to stay an additional month after the obstetrics program [at Franklin Health] closed, and instead immediately took a job as an OB-GYN at another facility in Mobile, Brooks suffered no damages.
“Proof of the damages resulting from a defendant’s alleged breach of contract is a required element in a breach-of-contract claim. See Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala.2009) (quoting Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002)) (‘“The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.” ’). In submitting evidence indicating that Brooks had immediately begun working with the Greater Mobile Physicians Group after leaving Franklin Health, Franklin presented substantial evidence indicating that Brooks was unable to prove damages in this case. Brooks failed to submit any evidence to the contrary. However, Brooks’s failure to submit evidence of damages is, alone, an insufficient basis for a summary judgment.
“‘Alabama law provides for nominal damages if a breach of contract is proven, even if a breach-of-contract plaintiff cannot prove actual damages. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 128 (Ala.1989) (“It is well settled, however, that once a breach of contract has been established, as it was in this case, the nonbreaching party is entitled to nominal damages even if there was a failure of proof regarding actual damages.”); see also James S. Kemper & Co. Southeast, Inc. v. Cox & Assocs., Inc., 434 So.2d 1880, 1385 (Ala.1983) (“When the evidence establishes a breach, even if only technical, there is nothing discretionary about the award of nominal damages.”). Thus, even if Jones and the companies failed to present substantial evidence of actual damages, Hamilton would not be entitled to a summary judgment on the breach-of-contract claim on that ground.’
“Jones v. Hamilton, 53 So.3d 134, 142 (Ala.Civ.App.2010). Accordingly, the summary judgment on Brooks’s breach-of-contract claim could not properly be entered on the basis of Brooks’s apparent lack of damages alone.”

Brooks I, 53 So.3d at 935-36.

Franklin contends that the above language somehow constituted a holding that the trial court should have entered a judgment in favor of Brooks for nominal damages. Franklin misunderstood this court’s holding in Brooks I; we therefore take this opportunity to clarify our decision.

On remand, “ ‘the trial court’s duty is to comply with the appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.” ’ ” Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App.2000) (quoting Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983), quoting in turn Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983)). To the extent that Franklin had argued it was entitled to a summary judgment because Brooks had failed to submit evidence rebutting Franklin’s assertion that he had not suffered any damages, we held that that ground alone is insufficient to sustain a summary judgment. The law set forth in the above discussion explains that, although a summary judgment is ordinarily proper if a nonmovant fails to present substantial evidence to rebut a “fact” asserted by a mov-ant, that general rule is inapplicable when a nonmovant fails to submit evidence of damages in a breach-of-contract claim, because, if the nonmovant can show that the contract had in fact been breached, the nonmovant is entitled to recover at least nominal damages.

After pointing out the well settled law that a plaintiffs failure to submit evidence of damages cannot result in the entry of a summary judgment in favor of a defendant in a breach-of-contract action, we went on to discuss Franklin’s failure to meet its burden pursuant to Rule 56(c), Ala. R. Civ. P., of demonstrating that no genuine issues of material fact existed as to other elements of Brooks’s breach-of-contract claim and Franklin’s failure to demonstrate that it was entitled to a summary judgment as a matter of law. Id. at 937. In Brooks I, this court made no determination as to whether Franklin had breached the employment contract at issue, and we did not make any determination as to whether Brooks would ultimately prevail on that issue. A fair reading of our opinion indicates that we determined that there were still genuine issues of material fact to be determined, and, therefore, we remanded the cause for further litigation of the issue. Our opinion in Brooks I should not be read as holding that, as to Brooks’s breach-of-contract claim, the trial court should have entered a judgment awarding Brooks nominal damages rather than a summary judgment in favor of Franklin.

For the above reasons, the trial court’s judgment awarding nominal damages to Brooks is reversed, and this cause is once again remanded with instructions to the trial court to proceed with the litigation of this case in a manner consistent with this opinion.

REVERSED AND REMANDED.

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

      . A recitation of the underlying facts are not necessary for disposition of this appeal. A statement of the facts in this case, as established at this point in the litigation, can be found in Brooks I, 53 So.3d at 933-35.


text:
    Barbara Jean PATTERSON v. Raymond Lindsey PATTERSON.
    2100018.
    Court of Civil Appeals of Alabama.
    April 15, 2011.
    James C. Mclnturff, Pell City, for appellant.
    Alan C. Furr of Harmon Furr LLC, Pell City, for appellee.
   THOMPSON, Presiding Judge.

On May 8 or May 4, 2010, the St. Clair Circuit Court entered a judgment divorcing Barbara Jean Patterson (“the wife”) from Raymond Lindsey Patterson (“the husband”). On June 1, 2010, the wife filed a motion that she titled “Petition to Modify Decree.” In her motion, she argued, among other things, that the trial court should have awarded alimony to her, should have awarded half of the husband’s retirement income to her, and should have awarded an attorney’s fee to her; she did not contend that there had been a change in circumstances over the preceding month that justified a modification of the divorce judgment. A certificate of service attached to the motion indicated that it had been served on counsel for the father. The court clerk assigned the wife’s filing a new case number (DR-09-12000.01) and assigned the case to a judge other than the judge who had presided over the parties’ divorce action.

On July 1, 2010, the judge who had presided over the parties’ divorce action entered an order in which he indicated that the circuit clerk had assigned an incorrect case number to the wife’s motion. He ordered the clerk to assign a “.01” designation to the original divorce action (case number DR-09-12) and to transfer the wife’s motion to him. He also ordered that the husband be served with a copy of the motion, and he set the motion for a hearing on August 23, 2010.

On the day set for the hearing on the motion, the husband filed an answer in which, among other things, he argued that there had been no material change in circumstances that would warrant a modification of the divorce judgment.

On August 26, 2010, the trial court entered a judgment in favor of the husband that provided, in pertinent part:

“1. These parties were divorced after a trial on May 3, 2010.
“2. The relief sought in [the wifej’s petition to modify all address items contained in the May 2010 divorce decree. From that divorce decree no motion to alter, amend or vacate nor was any appeal taken [sic].
“3. Therefore, the [wife]’s petition to modify filed less than one month following the final order is dismissed as it alleges no change in circumstances such as were not present at the time of the original divorce.”

The wife filed a timely appeal.

On appeal, the wife argues that the trial court erred in treating her motion as a petition to modify the divorce judgment rather than as a motion to alter, amend, or vacate that judgment. She argues that she “should not be penalized for the inadvertence and/or mistake of her attorney in wrongfully styling a motion to alter, amend, or vacate as a petition to modify” and that, given the time of the filing of the motion and the arguments contained therein, it was clear that the wife’s June 1, 2010, motion was intended to be a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the divorce judgment.

This court is committed to the proposition that a party’s pleadings and motions should be treated according to their substance rather than their titles. See Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala.2009) (“It is well settled that ‘[t]his Court will look at the substance of a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.’ ” (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005))); Ex parte Publix Super Markets, Inc., 963 So.2d 654, 659 (Ala.Civ.App.2007) (“[I]t is the substance, not the title, of a motion that determines its character.”). In the present case, it is apparent from the substance of the wife’s June 1, 2010, motion that the intent of that motion was to serve as a request, pursuant to Rule 59(e), Ala. R. Civ. P., that the trial court alter, amend, or vacate its judgment divorcing the parties. The wife did not allege a change in circumstances since the entry of the divorce as would have been necessary to support a petition to modify a divorce judgment, see Thompson v. Thompson, 650 So.2d 928, 930 (Ala.Civ.App.1994); instead, she stated grounds that would support relief under Rule 59(e) by asserting that the divorce judgment itself had been wrongly decided. Furthermore, in accordance with Rule 59(e), the wife filed the motion less than 30 days after the entry of the divorce judgment.

The trial court improperly treated the wife’s June 1, 2010, motion according to its title rather than its substance. Thus, we reverse the trial court’s denial of the wife’s postjudgment motion, and we remand the cause to the trial court to either grant or deny the wife’s postjudgment motion, treating that motion as one filed pursuant to Rule 59(e), Ala. R. Civ. P., rather than as a petition to modify the divorce judgment. For purposes of Rule 59.1, Ala. R. Civ. P., the wife’s Rule 59(e) motion shall be deemed to have been filed on the date this court issues its certificate of judgment in this cause. We pretermit discussion of the wife’s remaining appellate contentions.

REVERSED AND REMANDED.

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