author: MOORE, Judge.

text:
    Susan Rayford DANIELS v. Rodney K. RAYFORD.
    2100516.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.
    Jeffrey Bryan Pino of Jim Pino & Associates, P.C., Pelham, for appellant.
    James E. Hill III and Candace B. Cren-shaw of Weathington, Moore, Weisskopf & Hill, P.C., Moody, for appellee.
   MOORE, Judge.

Susan Rayford Daniels (“the mother”) appeals from a judgment entered by the Shelby Circuit Court (“the trial court”) denying her Rule 60(b)(4), Ala. R. Civ. P., motion for relief from a judgment entered by the trial court on May 5, 2004.

Procedural History

On October 31, 2003, Rodney K. Rayford (“the father”) filed in the trial court a petition seeking to modify the mother’s child-support obligation and requesting that he be allowed to claim both of the parties’ children for income-tax purposes. The father asserted, among other things, that the parties had been divorced by a judgment entered by the trial court on June 20, 2000, and that, pursuant to that judgment, the parties had been awarded joint custody of their two children, with each parent being allowed to claim one of the children for tax purposes. The father further asserted that the trial court had modified custody in February 2008 by awarding him “sole custody” of the children. At the bottom of his petition, the father requested that

“[t]he clerk ... serve a copy of the foregoing to the following by U.S. Certified Mail:
“Susan R. Rayford
“Rt. 1, Box 368
“Noxapater, Mississippi 39346”

(Bold typeface omitted.) The record indicates that the petition and summons sent by certified mail was returned to the clerk’s office marked “Not Deliverable as Addressed.”

On January 19, 2004, the father filed a “motion for service by publication,” in which he asserted:

“COMES now the [father] and moves the Court to enter an Order granting leave to serve a summons by publication for the grounds shown as follows:
“1. This is an equitable proceeding pertaining to a divorce decree, custody, and support order of the Court.
“2. [The mother’s] whereabouts are unknown and cannot reasonably be ascertained with reasonable diligence.
“3. Service at [the mother’s] last known address was unsuccessful, and [the mother] is believed to be avoiding service.
“4. The affidavit of [the father] is attached as Exhibit A pursuant to Rule 4.3(d)(l)[, Ala. R. Civ. P.].
“5. The Winston County Journal, located at North Court Avenue, Louisville, Mississippi 39339 ... is the newspaper of general circulation in the last community [the mother] is known to have resided.
“6. The proposed notice is attached as Exhibit B.
“WHEREFORE, the defendant, RODNEY K. RAYFORD, respectfully requests the Court to enter an Order granting leave to serve a summons by publication.”

(Capitalization in original.)

The father’s affidavit, attached as exhibit “A” to the father’s motion, stated:

“1. I certify that I am over the age of nineteen (19) and have firsthand knowledge of the facts stated herein.
“2. The present whereabouts of [the mother] are unknown and cannot reasonably be ascertained with reasonable diligence.
“3. Service by certified mail to [the mother] was returned unclaimed.
“4. [The mother’s] last known address was Route 1, Box 368, Noxapater, Mississippi 39346.
“5. I do not know where [the mother] lives, and have no means to locate her.
“6. [The mother] moves from place to place with a boyfriend. She will not take my calls when I have a number for her.
“7. She does not call her children who live with me.
“8. I believe that [the mother] is avoiding any contact with me to prevent modification of the support decree, knowing she should provide support to her children.
“9. I have tried to contact her through her parents. However, her parents have not known her whereabouts since [January 2004].”

The father’s motion for service by publication was granted on January 22, 2004.

On April 2, 2004, the father filed a “motion for default,” asserting, among other things, that service by publication had been completed on or about February 28, 2004, that the mother had “failed to answer or to otherwise make an appearance or request an extension before ... March 19, 2004, per notice issued by the Clerk of Court,” and requesting that the trial court enter a default against the mother and set the matter for a hearing to allow him to present proof in support of his petition to modify. The matter was set for a hearing on April 29, 2004.

The record contains a completed CS-41 Child-Support-Obligation Income Statement/Affidavit form signed by the father on April 29, 2004, along with a CS^42 Child-Support Guidelines form completed and signed by the father’s attorney on that same date. See Rule 32, Ala. R. Jud. Admin. On May 5, 2004, the trial court entered a judgment finding that a material change in circumstances existed, ordering the mother to pay child support in the amount of $392 per month until the parties’ children attain the age of 19 years, allowing the father to claim both children for income-tax purposes, and suspending the mother’s visitation with the children pending further order of the court.

On October 20, 2010, the mother filed a “motion for relief from judgment under Rule 60(b),” asserting, among other things, that the May 5, 2004, judgment was void because it had been entered against her “without proper service and/or personal jurisdiction.” Specifically, she asserted:

“A. The Motion for Service by Publication and Affidavit in Support thereof filed by the [father] on January 19, 2004 allege that the [mother’s] last known place of residence was in Noxapater, Mississippi. Accordingly, the [mother] would have been a non-resident Defendant. At the time of the attempted service, service by publication was not permitted on a non-resident defendant. See [Ala. R. Civ. P., Rule] 4.3; Cameron v. Tillis, 952 So.2d 352 (Ala.2006).
“B. The Motion for Service by Publication and Affidavit in Support thereof filed by the [father] are facially deficient in that they do not aver facts sufficient enough to have found that the [mother’s] residence was unknown and could not be ascertained by reasonable diligence. McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763 (Ala.Civ.App.1996).
“C. The Motion for Service by Publication and Affidavit in Support thereof filed by the [father] are facially deficient in that they do not aver facts sufficient enough to have found that the [mother] was avoiding service of process. McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763 (Ala.Civ.App.1996).”

The father filed a response to the mother’s Rule 60(b) motion. On January 24, 2011, the trial court entered a judgment denying the mother’s Rule 60(b) motion. On February 18, 2011, the mother filed what she styled as a “Motion to Vacate, Alter, or Amend”; the trial court purported to deny that motion on February 23, 2011.

On February 24, 2011, the father filed a response to the mother’s motion to vacate, alter, or amend; he also moved to hold the mother in contempt for her alleged failure to comply with previous court orders. On February 28, 2011, the trial court entered an order finding the father’s response and the motion to hold the mother in contempt moot. The mother filed her notice of appeal that same day.

Standard of Review

“ ‘ “The standard of review on appeal from the denial of relief under Rule 60(b)(4)[, Ala. R. Civ. P.,] is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ”

Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)); see also Ex parte N.B., 66 So.3d 249, 254 (Ala.2010).

Discussion

On appeal, the mother argues that the trial court erred in declining to grant her Rule 60(b) motion. Specifically, she argues that, because she was not a resident of Alabama in 2004, the trial court erred in allowing the father to serve her by publication. The mother correctly points out that Rule 4.3, Ala. R. Civ. P., as it read before it was amended in August 2004, did not allow a nonresident in an in personam action to be served by publication. See, e.g., Cameron v. Tillis, 952 So.2d 352, 353-54 (Ala.2006) (holding that service by publication on a nonresident was invalid before the August 1, 2004, amendment to Rule 4.3).

The father argues and the mother acknowledges, however, that, in Gross v. Loewen, 522 So.2d 306 (Ala.Civ.App.1988), this court indicated in dicta that, in a postdivorce modification proceeding, a nonresident defendant could be served by publication. The mother asks this court to overrule that part of our opinion in Gross. As the mother points out, in Gross, this court reasoned that an exception to the general rule exists because postdivorce proceedings are actually continuations of the original divorce action. We note, however, that our supreme court has held: “The filing of a petition to modify a domestic-relations judgment is, for purposes of applying the rules of procedure, treated as the filing of a separate action.” Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000). Thus, we conclude that the reasoning of the court’s dicta in Gross was flawed.

In Gross, this court also relied on former § 30-3-25(a)(4), Ala.Code 1975, a part of the former Uniform Child Custody Jurisdiction Act (“the UCCJA”), formerly codified at § 30-3-20 et seq., Ala.Code 1975, as persuasive authority. We note, however, that, at the time the mother was served by publication in this case, the UCCJA had already been replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975. Section 30-3B-108(a), Ala.Code 1975, of the UCCJEA provides:

“Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.”

The Alabama Comment to § 30-3B-108, Ala.Code 1975, makes it clear that “out of state service of process [is limited] to the manner currently provided for by the Alabama Rules of Civil Procedure. (Rule 4.2[, Ala. R. Civ. P.]).” Thus, we do not find that the UCCJEA is persuasive authority for the exception set forth in dicta in the Gross opinion.

Having found the rationale in the dicta in Gross to be misplaced in the present case, we decline to follow it. We instead conclude that, based on the plain language of Rule 4.3 as it existed before the August 1, 2004, amendment, service by publication on a nonresident defendant, such as the mother in this case, was improper. Because the mother “was not properly served, the default judgment is void.” Cameron, 952 So.2d at 354. A void judgment must be set aside. Bank of America Corp. v. Edwards, 881 So.2d at 405. Accordingly, we conclude that the trial court erred in declining to grant the mother’s Rule 60(b) motion. We therefore reverse the trial court’s judgment and remand this cause for the trial court to enter a judgment granting the mother’s Rule 60(b) motion and setting aside the May 5, 2004, void judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The typewritten affidavit states that "her parents have not known her whereabouts since September of 2003.” However, "September of” is crossed out and "January 2004” is handwritten below it.

      . "After a trial court has denied a post-judgment motion pursuant to Rule 60(b), [Ala. R. Civ. P.,] that court does not have jurisdiction to entertain a successive postjudgment motion ... or otherwise review its order denying the Rule 60(b) motion.” Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998).

      . Rule 4.3(a)(2), Ala. R. Civ. P., as it read before the August 1, 2004, amendment, provided, in pertinent part: “In no event shall an in personam judgment be entered on service by publication except as provided in subpara-graph (c) of this rule.” Rule 4.3(c), Ala. R. Civ. P., as it read before the August 1, 2004, amendment, provided, in pertinent part:
      "(c) Avoidance of Service. When a resident defendant avoids service and that defendant's present location is unknown and the process server has endorsed the fact of failure of service and the reason thereof on the process and returned same to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication.”
      (Emphasis added.)

      . Rule 4.2, as it read before the August 1, 2004, amendment, referenced Rule 4.3 with regard to the requirements for service by publication.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Joseph L. THOMAS v. Jeanette MENEFIELD.
    2091159.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.

      J. Carlton Taylor, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

In April 2009, Jeanette Menefield filed a civil action in the Montgomery Circuit Court seeking to quiet title in herself to a particular parcel of real property in Montgomery County; in that action, Joseph L. Thomas was named as a defendant. After an ore tenus proceeding, the trial court entered a judgment on March 25, 2010, canceling a 2006 quitclaim deed from Menefield to Thomas, but directing Menefield to pay Thomas $12,470. On April 24, 2010, Thomas timely moved to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P. However, the trial court failed to rule on that motion on or before Friday, July 23, 2010, the 90th day after its having been filed; thus, pursuant to the operation of Rule 59.1, Ala. R. Civ. P., the motion was automatically denied as of that date. An order was entered on Monday, July 26, 2010 (93 days after the filing of the postjudgment motion), in which the trial court purported to vacate its March 25, 2010, judgment and to substitute a new judgment; however, that order was a nullity. See Kmart Corp. v. Perdue, 708 So.2d 106, 107 (Ala.1997).

Subsections (a)(1) and (a)(3) of Rule 4, Ala. R.App. P., taken together, provide that, subject to exceptions not here pertinent, a party must file a notice of appeal from a trial court’s judgment within 42 days from the denial of a postjudgment motion by operation of law pursuant to Rule 59.1. Pursuant to that rule, Thomas had until Friday, September 3, 2010, to file a notice of appeal in this case. However, Thomas did not attempt to file a notice of appeal until Monday, September 6, 2010, 45 days after the denial of the post-judgment motion, when, despite the Labor Day holiday, Thomas electronically filed such a notice of appeal.

On the authority of Alabama Department of Mental Health & Mental Retardation v. Marshall, 741 So.2d 434 (Ala.Civ.App.1999), we dismiss the appeal ex mero motu as having been untimely filed:

“Although [the appellee] has not challenged our appellate jurisdiction, we must consider whether we have jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).
“The circuit court’s judgment of October 21, 1998, was an appealable ‘final judgment[ ]’....
“Rule 4(a)(1), Ala. R.App. P., provides (with limited exceptions not here pertinent) that a party desiring to appeal must file his or her notice of appeal within 42 days of the date of the entry of the judgment appealed from.... While Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion under Rule 59, Ala. R. Civ. P., suspends the running of the time for filing a notice of appeal, a postjudgment motion may not remain pending in the circuit court for more than 90 days ‘unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie.’ Rule 59.1, Ala. R. Civ. P. A failure by the circuit court to rule upon a postjudgment motion [within] the time permitted constitutes a denial of that motion. See Rule 59.1., Ala. R. Civ. P. ‘If [a] post-judgment motion is deemed [denied] under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.’ Rule 4(a)(3), Ala. R.App. P.
“... The motion filed by the [appellant] on November 12, 1998, asking the circuit court to ‘clarify’ the October 21, 1998, judgment requested the circuit court to add something to its judgment that was not previously present, i.e., reasons for its decision. It therefore constituted a motion made pursuant to Rule 59, Ala. R. Civ. P.
“Although the [appellant’s] motion sought relief available under Rule 59(e), Ala. R. Civ. P., it was not ruled upon by the circuit court within 90 days of November 12, 1998, the date of its filing, and was automatically denied by operation of law on February 10, 1999, 90 days later. Rule 59.1, Ala. R. Civ. P. The trial court’s February 11, 199[9], order was thus a nullity.... The [appellant] had 42 days from February 10, 1999 (i.e., until March 24, 1999), in which to file a notice of appeal, but it did not do so; instead, its notice of appeal was filed on March 25, 1999, one day late.
“Rule 2(a)(1), Ala. R.App. P., provides that ‘[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’ (Emphasis added [in Marshall].) Because we have concluded that the [appellant’s] notice of appeal was not timely filed, we must dismiss its appeal.”

741 So.2d at 436-37. The trial court is directed to set aside its void order of July 26, 2010.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The July 26, 2010, order contained a number of provisions not appearing in the March 25, 2010, judgment, such as a requirement that Menefield pay annual interest of 10% on the moneys declared to be owed to Thomas and a provision that a 2000 warranty deed from Menefield to Thomas be canceled.

      . Although the electronic case-action-summary sheet reveals that a "rejection notice” was sent to an unidentified "filer” on September 7, 2010, it does not appear that that entry indicates a rejection by the trial court clerk of the filing of the notice of appeal, and the electronic case-action-summary sheet further contains a September 8, 2010, entry indicating that the case had been deemed "appealed” as of September 6, 2010.


author: THOMAS, Judge.

text:
    Vivian Marsheila WOODS, individually and as the personal representative of the estate of Vernon H. Gilchrist, deceased v. SUNTRUST BANK. Ex parte Vivian Marsheila Woods, as personal representative of the estate of Vernon H. Gilchrist, deceased. (In re Vivian Marsheila Woods, individually and as the personal representative of the estate of Vernon H. Gilchrist, deceased v. SunTrust Bank). Vivian Marsheila Woods, as the personal representative of the estate of Vernon H. Gilchrist, deceased v. SunTrust Bank.
    2090627, 2100034, and 2100089.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.

      Robert M. Hill, Jr., Florence; and Steven D. Tipler, Birmingham, for appellant/petitioner Vivian Marsheila Woods.
    John P. Scott, Jr., and Michael T. Sciv-ley of Starnes Davis Florie LLP, Birmingham; and Preston S. Trousdale, Jr., of Jones & Trousdale, Florence, for appel-lees/respondent SunTrust Bank.
   THOMAS, Judge.

This court’s opinion of June 24, 2011, is withdrawn, and the following is substituted therefore.

Vernon H. Gilchrist and Willa Mae Gilchrist (hereinafter collectively referred to at times as “the Gilchrists”) obtained a $25,000 equity line of credit from SunTrust Bank (“SunTrust”) in 1987, which was secured by their home (“the Gilchrist home”); the Gilchrists also had a checking account with SunTrust. In December 2003, the Gilchrists executed durable powers of attorney naming Kenneth Gilchrist, their son, and Vivian Marsheila Woods, their daughter, as joint attorneys-in-fact. The Gilchrists executed a second and third power of attorney following Kenneth’s death in April 2005, naming Woods as the Gilchrists’ attorney-in-fact. The Gilchrists both suffered from significant health problems, requiring in-home care from caregivers and requiring Woods to handle many of their financial affairs.

In January 2005, Kenneth accompanied Vernon to SunTrust, where Vernon signed a check withdrawing $8,000 from the equity line of credit; Woods questioned the validity of the $8,000 withdrawal. The Gil-christs then stopped making payments on the equity line of credit, and the debt became delinquent and in default. In November 2005, SunTrust withdrew $1,899 from the Gilchrists’ checking account to offset part of the delinquent equity-line-of-credit debt. SunTrust did not receive any more payments on the debt.

In the spring of 2005, SunTrust began collection efforts on the delinquent equity-line-of-credit debt. SunTrust made numerous telephone calls to the Gilchrist home in reference to the delinquent debt. The telephone calls were answered by various caregivers or Woods; the caregivers would relay the content of the telephone calls that they had received to Woods. Some of the collection calls were directed to the Gilchrists’ attorney. Woods and the caregivers instructed SunTrust to direct all of its telephone calls regarding the debt to the Gilchrists’ attorney; however, Sun-Trust continued to call the Gilchrist home. Willa Mae died on October 1, 2005.

In March 2006, SunTrust began foreclosure proceedings on the Gilchrist home. On April 5, 2006, Vernon and Woods, in her individual capacity, as attorney-in-fact for Vernon, and as the executrix of the estate of Willa Mae, filed a complaint in the Lauderdale Circuit Court. In their complaint, Vernon and Woods sought temporary and permanent injunctions to prevent SunTrust from foreclosing on the Gilchrist home. Vernon and Woods also sought a declaratory judgment determining that Vernon was not indebted to SunTrust, requiring SunTrust to make a detailed accounting of all transactions relating to Vernon’s account, and declaring that the pending mortgage foreclosure was invalid. Vernon and Woods further asserted claims of invasion of privacy, conversion of moneys, slander of title, “outrageous debt collection practices,” breach of contract, breach of the peace, breach of a fiduciary relationship, negligence, wantonness, and the tort of outrage. Vernon and Woods requested a jury trial on their claims and sought compensatory and punitive damages.

On August 10, 2007, Woods filed a suggestion of death with the trial court, stating that Vernon was deceased.

SunTrust stopped its foreclosure efforts, answered the complaint, and, on September 19, 2007, filed a counterpetition, in which it sought a declaratory judgment determining that the Gilchrists were indebted to SunTrust, that SunTrust had a valid and existing right to proceed with a foreclosure against the Gilchrist home, and that the sums due under the equity line of credit had become due and payable in full on January 28, 2007.

On November 19, 2007, Woods filed a motion to substitute the estate of Vernon H. Gilchrist (hereinafter referred to as “the estate”), by and through the estate’s personal representative, Woods, as one of the plaintiffs in the case, in place of Vernon. The trial court granted the motion.

On July 10, 2009, SunTrust filed a motion for a summary judgment in favor of it on each claim in Woods’s and the estate’s complaint and on its counterpetition for a declaratory judgment. Following extensive briefing by the parties, and after conducting a hearing on the motion, the trial court entered a partial summary judgment on November 30, 2009. The trial court entered a summary judgment in favor of SunTrust on all the estate’s claims except for its claims of negligence and wantonness relating to the $8,000 withdrawal. The trial court also entered a summary judgment in favor of SunTrust on each of Woods’s individual claims except for her claim of invasion of privacy. In its partial summary judgment, the trial court also denied Woods’s and the estate’s claims for declaratory and injunctive relief. The trial court further determined:

“[SunTrust’s] motion for Declaratory Judgment on its [counterpetition] establishing a valid debt owed by the Gil-christs under the equity line agreement for which the Gilchrist[s] are in default is GRANTED. [SunTrust] has a valid and existing right to proceed with the remedies available to it, despite a jury question regarding the $8,000 of the $24,157.83 indebtedness.”

In January 2010, SunTrust renewed its efforts to foreclose on the Gilchrist home. On February 4, 2010, the estate moved the trial court to enter a temporary injunction to prevent SunTrust from foreclosing on the Gilchrist home. In its motion, the estate stated that SunTrust was claiming an unpaid principal balance of $137,320.10, comprising $16,157.83 on the debt and $121,162.27 in attorneys fees. The estate requested that the trial court enjoin the foreclosure “pending a jury determination of a reasonable attorney’s fee and other issues before this court.” The trial court denied the motion on February 5, 2010. On February 8, 2010, the estate filed a motion titled “Motion to Set Aside Mortgage Foreclosure and to Redeem Mortgage,” in which the estate alleged that the foreclosure sale had taken place and that the estate had attempted to tender $16,157.83 at the sale, which had been refused in favor of SunTrust’s bid of $187,320.10. The estate claimed that the reasonableness of the attorneys fees associated with the indebtedness could not be determined “until a jury is empaneled to hear [the] case and the reasonableness of the attorney fees are presented to the jury for determination.” The estate also claimed that the foreclosure sale was “unlawful, illegal, unauthorized, and fraudulent.” The estate requested that the trial court set aside the foreclosure and determine that any foreclosure deed issued following the sale would be void.

The estate’s claims of negligence and wantonness and Woods’s claim of invasion of privacy proceeded to a jury trial, which began on February 10, 2010. Before the trial, on January 28, 2010, SunTrust had filed a motion in limine, requesting that the trial court exclude any evidence or testimony concerning the frequency and content of telephone calls made to the Gilchrist home by SunTrust that were received by individuals other than Woods. SunTrust later submitted a brief in support of its motion. After hearing arguments of counsel, the trial court granted SunTrust’s motion.

The jury returned a verdict in favor of SunTrust on the estate’s claims of negligence and wantonness and on Woods’s claim of invasion of privacy. The trial court entered a judgment on the jury’s verdict on February 22, 2010. Woods and the estate subsequently appealed to this court on April 1, 2010. We transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala. Code 1975. This court assigned case number 2090627 to the appeal.

On August 27, 2010, the trial court purported to deny the estate’s February 8, 2010, motion to set aside the foreclosure and purported to set the amount required for redemption of the Gilchrist home at $137,320.10. The estate filed a petition for a writ of mandamus in the supreme court in relation to the trial court’s August 27, 2010, order, together with a notice of appeal from that same order. Our supreme court transferred the petition for a writ of mandamus and the appeal to this court. This court assigned the petition for a writ of mandamus case number 2100034 and the appeal case number 2100089.

Analysis

I. Denial of injunction prohibiting mortgage foreclosure

The estate first argues in case number 2090627 that the trial court erred by not issuing an injunction preventing SunTrust from foreclosing on the Gilchrist home. The estate, in its complaint, requested that the trial court enjoin SunTrust from foreclosing on the Gilchrist home during the pendency of the action. The trial court denied the estate’s request for injunctive relief in its November 30, 2009, partial summary judgment. On February 4, 2010, the estate again moved the trial court to issue a preliminary injunction, requesting that the trial court enjoin SunTrust from conducting a foreclosure sale of the Gilchrist home until, the estate said, a jury could determine a reasonable amount of attorney fees associated with the foreclosure. The trial court denied the estate’s second request for injunctive relief on February 5, 2010.

Rule 4(a)(1), Ala. R.App. P., provides that an appeal from an interlocutory order denying an injunction shall be filed within 14 days of the entry of the order. The estate did not appeal from either of the trial court’s orders denying its request for an injunction within the 14-day time limit prescribed in Rule 4(a)(1); therefore, its appeal is untimely insofar as it challenges the trial court’s denial of its requests for injunctive relief. See Rule 4(a)(1). Because the filing of a timely notice of an appeal is a prerequisite to the exercise of this court’s appellate jurisdiction, see Miller Props., LLC v. Green, 958 So.2d 850, 851 (Ala.2006), this court lacks jurisdiction over the estate’s appeal insofar as it challenges the trial court’s denial of its requests for injunctive relief, and, thus, we cannot consider its argument that Sun-Trust should have been enjoined from foreclosing on the property until a jury could determine the reasonable attorneys fees associated with the foreclosure.

Moreover, the estate can no longer be awarded the relief it sought in its request for an injunction to prevent SunTrust from foreclosing on the property until a jury determination of the attorneys fees associated with the foreclosure. After the trial court entered its order allowing SunTrust to proceed with the foreclosure, SunTrust foreclosed on the property. Thus, the estate’s request for injunctive relief is now moot. “This Court will dismiss an appeal from the denial of an injunction when an event occurring after the denial of the injunction renders the appeal moot.” Employees of the Montgomery Cnty. Sheriff’s Dep’t v. Marshall, 893 So.2d 326, 330 (Ala.2004). Because the estate’s appeal in case number 2090627, insofar as it challenges the trial court’s denial of its request for injunctive relief and its request to have a jury determination of attorneys fees before the foreclosure sale, is untimely, and because the issue is now moot, we dismiss the estate’s appeal as to that issue.

II. Denial of jury trial on attorneys fees

The estate next argues in case number 2090627 that the issue of what constituted reasonable attorneys fees associated with SunTrust’s foreclosure of the Gilchrist home should have been determined by a jury. The trial court’s November 30, 2009, and February 5, 2010, orders denying the estate’s requests to enjoin SunTrust’s foreclosure of the property also effectively denied the estate’s request to have a jury determine the issue of what constituted reasonable attorneys fees associated with the foreclosure. Although the estate attempts to challenge on appeal the trial court’s failure to present the issue of attorneys fees to the jury, our supreme court has explained that the appropriate vehicle for challenging the denial of a jury-trial request is a petition for a writ of mandamus. “‘The rights of the parties secured by those statutory provisions [providing for a right to a trial by jury] are subject to the enforcement by mandamus in view of the fact that as a rule there would not be an adequate remedy by appeal from the final judgment. ’ ” Ex parte Moore, 880 So.2d 1131, 1133-34 (Ala.2003) (quoting Ex parte Merchants Nat’l Bank of Mobile, 257 Ala. 663, 664, 60 So.2d 684, 685 (1952)) (emphasis added).

After the trial court denied its request to enjoin the foreclosure sale and have a jury determine the amount of attorneys fees, the estate, on February 9, 2010, filed a motion titled “Motion to Set Aside Mortgage Foreclosure and to Redeem Mortgage.” In its reply brief on appeal, the estate characterizes this motion as “an attempt ... to get the trial court to correct its Order of foreclosure.... ” Thus, based on the estate’s own characterization of the motion, the estate’s motion appears to be a “motion to reconsider” the trial court’s interlocutory order denying its request for injunctive relief and to have a jury determine the amount of attorneys fees. On February 25, 2010, the estate petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to submit the issue of attorneys fees to the jury. Our supreme court denied the estate’s petition on March 24, 2010, without issuing a written opinion. Ex parte Woods (No. 1090704, March 24, 2010) - So.3d - (Ala.2010) (table). Because the question whether the issue of what constituted reasonable attorneys fees should have been determined by a jury is not proper for consideration on appeal, we need not further consider this issue.

III. Jurisdiction of trial court to rule on motion to set aside foreclosure sale

The trial court, on August 27, 2010, over six months after entry of its judgment following the jury trial, purported to enter an order denying the estate’s motion to set aside the foreclosure sale and setting the amount for redemption at $137,320.10, which amount consisted of $16,157.83 in loan debt and $121,162.27 in attorneys fees. The estate argues in its petition for a writ of mandamus, case number 2100034, that the trial court did not have jurisdiction to enter its August 27, 2010, order. We agree, although for different reasons than those asserted by the estate.

“A petition for a writ of mandamus is the proper method for obtaining review of a trial court’s authority to rule on a posttrial motion beyond the time period set forth in Rule 59.1, Ala. R. Civ. P. See Ex parte Chamblee, 899 So.2d 244, 244-45 (Ala.2004) (granting petitions for the writ of mandamus that ‘implicate[d] the authority of the trial judge under Rule 59.1....’). See also Ex parte Davidson, 782 So.2d 237 (Ala.2000), in which this Court issued the writ of mandamus setting aside the trial court’s order, entered after posttrial motions had been denied by operation of law pursuant to Rule 59.1, as void.”

Ex parte Jackson Hosp. & Clinic, Inc., 49 So.3d 1210, 1211 (Ala.2010).

The estate’s motion to set aside the foreclosure sale, which, as noted earlier, it characterizes as a “motion to reconsider” the trial court’s interlocutory order denying the estate’s request for injunctive relief and its demand for a jury trial on the issue of attorneys fees, was filed before the entry of a final judgment in the case. Once the trial court entered its February 22, 2010, judgment, the estate’s motion quickened into a postjudgment motion. See Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 347 (Ala.Civ.App.2004) (“[A] premature postjudgment motion that, if it had been directed to a final judgment, would toll the time for filing a notice of appeal from a final judgment (see Ala. R.App. P., Rule 4(a)(3)) ‘quickens’ on the day that the final judgment is entered.”). The trial court then had 90 days to rule on the motion. See Rule 59.1, Ala. R. Civ. P. (“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days.... A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”).

The trial court entered its final judgment on February 22, 2010. Therefore, the estate’s motion was denied by operation of law on May 24, 2010, and the trial court thereafter lost jurisdiction to rule on the motion. “If a motion is so denied by operation of law, ‘the trial judge then loses jurisdiction to rule on the motion’ and is ‘without jurisdiction to enter any further order in [the] case after that date.’ ” Ex parte Limerick, 66 So.3d 755, 757 (Ala.2011) (quoting Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000)). Accordingly, the trial court’s August 27, 2010, order purportedly ruling on the estate’s motion is void. Id. Therefore, the estate’s petition is due to be granted, and, accordingly, we issue the writ directing the trial court to vacate its August 27, 2010, order.

In case number 2100089, filed along with its petition for a writ of mandamus (case number 2100034), the estate also challenges the trial court’s jurisdiction to enter its August 27, 2010, order. Because we have concluded that a petition for a writ of mandamus is the appropriate vehicle for challenging the trial court’s jurisdiction to enter its August 27, 2010, order, the estate’s appeal on that same issue is moot and is due to be dismissed.

IV. Grant of SunTrust’s motion in limine excluding evidence of telephone calls

In case number 2090627, Woods argues that the trial court erred when it granted SunTrust’s motion in limine, excluding evidence and testimony concerning certain telephone calls made to the Gilchrist home by SunTrust that were received by various caregivers of the Gil-christs. Woods argues that the telephone calls were relevant to her individual claim of invasion of privacy.

“Alabama recognizes that a person has an actionable right to be free from
the invasion of privacy. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961). The debtor-creditor aspect of this right has been characterized as:
“ ‘ “the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” ... ’
“Smith v. Doss, 251 Ala. 250, 253, 37 So.2d 118 (1948) (quoting with approval 41 Am.Jur. Privacy, § 2 p. 925 (1942)).”

Jacksonville State Bank v. Barnwell, 481 So.2d 863, 865 (Ala.1985). Alabama courts have also recognized that

“[t]he mere efforts of a creditor ... to collect a debt cannot without more be considered a wrongful and actionable intrusion. A creditor has and must have the right to take reasonable action to pursue his debtor and collect his debt. But the right to pursue the debtor is not a license to outrage the debtor. The problem of defining the scope of the right of privacy in the debtor-creditor situation is the problem of balancing the interest of the creditor in collecting his debt against that of the debtor in his own personality. Some courts appear to have struck that balance on the so-called ‘rule of reason.’ Thus in the recent case of Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440, 449 [ (1955) ], affirmed 165 Ohio St. 35, 133 N.E.2d 340 [(1956)], the Ohio appellate courts asserted that ‘a creditor has a right to take reasonable action to pursue his debtor and pur-suade payment, although the steps taken may result to a certain degree in the invasion of the debtor’s right of privacy,’ but that the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness. We approve this statement.”

Norris v. Moskin Stores, Inc., 272 Ala. 174, 177, 132 So.2d 321, 323 (1961).

In Barnwell, the bank attempted to collect on a debt Barnwell owed to it. 481 So.2d at 865. The bank placed numerous telephone calls to Barnwell’s home and place of employment. Id. The bank also fraudulently added two automobiles owned by Barnwell as collateral on the debt and attempted to repossess the automobiles. Id. When a representative of the bank went to Barnwell’s place of employment and attempted to repossess one of the automobiles, the bank’s representative “caused a great deal of commotion” and used “coarse, inflammatory, malicious, and threatening language” in front of Barnwell’s coworkers. Id. at 865, 866. The bank’s actions at Barnwell’s place of employment caused Barnwell to be twice reprimanded at work. Id. at 865. The Alabama Supreme Court held that that evidence was sufficient to support the jury’s determination that the bank’s actions directed at Barnwell were “outrageous to a person of ordinary sensibilities.” Id. at 866.

In Norris, supra, a representative of a merchant, in attempting to collect a debt from Norris, called Norris’s wife and sister-in-law, claiming to be a woman that had been dating Norris. 272 Ala. at 175-76, 132 So.2d at 322. The representative “ ‘led persons to whom she was speaking into believing that [Norris] had engaged, or was engaging, in activities contrary to the recognized conventions of his marital status.’ ” 272 Ala. at 176, 132 So.2d at 322. Norris sued the merchant alleging invasion of privacy. 272 Ala. at 175, 132 So.2d at 321. The merchant moved to dismiss the claim; the trial court granted the merchant’s motion. Id. The Alabama Supreme Court reversed the trial court’s dismissal, holding that Norris’s complaint, in which he had alleged that the merchant had contacted Norris’s wife and sister-in-law and had made them believe that Norris had been unfaithful in his marriage, set forth “sufficient ‘harassment’ and that the activities of the [merchant] [fell] beyond the realm of reasonable action and into the area of wrongful and actionable intrusion.” 272 Ala. at 178, 132 So.2d at 325.

In this case, Woods, who is not the debtor, is alleging that SunTrust invaded her privacy by placing telephone calls to the Gilchrist home, directed to the Gilchrists, regarding a debt owed by the Gilchrists. Unlike in Barnwell or Norris, there are no allegations that SunTrust placed any calls to Woods’s residence or place of employment, that SunTrust claimed that Woods owed the debt, or that SunTrust made any comments regarding Woods’s personal affairs — all of SunTrust’s actions were directed toward the debtors, the Gilchrists. In short, there is no evidence indicating that SunTrust in any way “intruded into [Woods’s] private activities”; rather, any possible intrusion would have been only to the private activities or affairs of the Gilchrists. “[T]he right of privacy is a personal right, and [Alabama courts have] not recognized a ‘relational right to privacy.’ ” Fitch v. Voit, 624 So.2d 542, 543 (Ala.1993). Because all the telephone calls excluded from evidence were placed to the Gilchrist home, directed to the Gil-christs, and were in regard to a debt owed by the Gilchrists, the telephone calls that were received by the caregivers cannot support, and, thus, are not relevant to, the claim by Woods that SunTrust had violated her individual right of privacy.

“The decision to grant or deny a motion in limine rests within the sound discretion of the trial court, and that decision will not be overturned on appeal unless the trial court exceeds the limits of its discretion.” Guthery v. Persall, 26 So.3d 1250, 1254 (Ala.Civ.App.2009) (citing Ex parte Jackson, 836 So.2d 979, 985 (Ala.2002)). Because the excluded testimony and evidence concerning the telephone calls at issue were not relevant to Woods’s claim of invasion of privacy, the trial court did not exceed the limits of its discretion when it granted SunTrust’s motion in li-mine.

V. Propriety of the summary judgment on Woods’s individual claims of negligence and wantonness

In case number 2090627, Woods next argues that the trial court erred when it entered a summary judgment in favor of SunTrust on her claims of negligence and wantonness. In her brief, Woods claims that SunTrust was negligent and wanton in its attempted collection of the Gilchrists’ debt because it (1) listed the wrong address in its foreclosure notice; (2) failed to provide the attorney who was representing the Gilchrists and Woods an itemized accounting of the debt; (3) “unlawfully” foreclosed on the property without a jury determination of attorney fees; (4) continued to call the Gilchrist residence after being informed that it should contact the Gil-christs’ attorney, allegedly in violation of SunTrust’s internal rules and regulations; and (5) violated its internal rules and regulations by allegedly converting funds from the Gilchrists’ checking account.

“To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Albert v. Hsu, 602 So.2d 895, 897 (Ala.1992).” Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994). Further, “ ‘[t]he absence of any one of these [elements] renders .... the evidence insufficient [to establish negligence].’ ” Franklin v. City of Athens, 938 So.2d 950, 953 (Ala.Civ.App.2005) (quoting Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269, 273 (1965)). Whether a legal duty exists is a question of law. Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala.1983). “To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.” Martin, 643 So.2d at 567.

The negligence and wantonness claims that Woods has asserted involve SunTrust’s actions in attempting to collect a debt owed by the Gilchrists on property owned by the Gilchrists. The bank account that contained the funds that she alleges were converted by SunTrust was the Gilchrists’ account. Thus, Woods is attempting to bring an action in her individual capacity based on alleged duties owed to the Gilchrists and alleged harms to the interests of the Gilchrists, not to her own individual interests. A party does not have standing to bring an action based on harms to a third party. See Proctor v. Classic Auto., Inc., 20 So.3d 1281, 1289 (Ala.Civ.App.2009). As this court explained in Proctor:

‘A party must allege an individual or representative right and a redressable injury to that right as a prerequisite to setting in motion the machinery of the court. See 59 Am.Jur.2d Parties § 31 (1987). In order to be a “proper party plaintiff, a person must have an interest in the right to be protected.” Eagerton v. Williams, 433 So.2d 436, 447 (Ala.1983). As a general rule, “a litigant may not claim standing to assert the rights of a third party.” Jersey Shore Medical Center-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980). A party lacks standing to invoke the power of the court in his behalf in the absence of “a concrete stake in the outcome of the court’s decision.” Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983).’ ”

Proctor, 20 So.3d at 1288 (quoting Ex parte Izundu, 568 So.2d 771, 772-73 (Ala.1990)).

Because Woods’s negligence and wantonness claims are based on alleged injuries to the Gilchrists, not to herself, she lacked standing to assert those claims. “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). We note that the trial court did not explain its reasons for entering a summary judgment in favor of SunTrust on Woods’s negligence and wantonness claims; however, this court may affirm a summary judgment for any valid legal ground, subject to certain limitations not applicable in this case. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Sens. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Therefore, we affirm the trial court’s summary judgment on Woods’s negligence and wantonness claims.

VI. Propriety of the summary judgment on Woods’s individual claim of conversion and the estate’s claim of conversion

In case number 2090627, Woods and the estate next argue that the trial court erred when it entered a summary judgment on Woods’s claim of conversion and the estate’s claim of conversion.

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Borders v. City of Huntsville, 875 So.2d 1168, 1176-77 (Ala.2003). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Woods and the estate assert that Sun-Trust converted $1,899 in funds from the Gilchrists’ checking account when it removed the funds from the account to offset part of the delinquent debt that SunTrust claimed was owed by the Gilchrists. Woods and the estate argue that SunTrust violated its own rules and regulations by removing the funds from the account because, they argue, the account contained more than 50% in Social Security deposits at the time of the removal of the funds.

The rules and regulations applicable to the Gilchrists’ SunTrust checking account state:

“If you owe SunTrust money as a borrower, guarantor, or otherwise, and it becomes due, the Bank shall have the right under the law (called right of offset or setoff) and under these rules and regulations (by which you grant Sun-Trust a security interest in your Account) to use the money from your Account to pay the debt, even if withdrawal results in an interest penalty or dishonor of checks.”

SunTrust also has a policy that states that it would not exercise its right of offset on “[ajccounts with more than 50% of the deposits coming from Social Security Funds.” Thus, it is clear that SunTrust had the authority under its rules and regulations, to which the Gilchrists’ agreed when they opened their account, to offset the amount of the delinquent debt, provided that the Gilchrists’ checking account did not contain more than 50% in funds from Social Security deposits.

The evidence shows that for the statement period covering October 12, 2005, through November 8, 2005, during which time SunTrust exercised its right of offset, the Gilchrists’ checking account contained the following deposits: a $1,546.37 deposit, which was not identified as coming from any particular source; a $429.03 deposit of pension benefits; a $732.82 deposit of retirement benefits; a $1,394 deposit of Social Security benefits; and a $255 deposit of Social Security benefits. Thus, for the statement period in question, the account contained $4,357.22 in deposits, $1,649 of which are identifiable as being Social Security deposits. Thus, 37.9% of the deposits in the Gilchrists’ checking account were identifiable as Social Security deposits.

Woods and the estate argue on appeal that the $1,546.37 deposit consisted of military-retirement benefits, which they assert are also not available for purposes of offset. Woods and the estate also made this argument in opposition to SunTrust’s motion for summary judgment. However, their argument consisted only of statements made by counsel in the supplemental brief in opposition to SunTrust’s motion for a summary judgment; the argument was not supported by any evidence that the $1,546.37 deposit did, in fact, consist of military-retirement benefits. It is well settled that

“ ‘[mjotions and arguments of counsel are not evidence.’ Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d 836, 845 (Tex.App.1999). ‘[Statements in motions are not evidence and are therefore not entitled to evidentiary weight.’ Singh v. Immigration & Naturalization Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir.2000). ‘[B]riefs submitted in support of motions are not evidence to be considered by the Court in resolving a summary judgment motion.’ Direct Media Corp. v. Camden Tel. & Tel. Co., 989 F.Supp. 1211, 1217 (S.D.Ga.1997).”

Fountain Fin., Inc. v. Hines, 788 So.2d 155,159 (Ala.2000). Therefore, Woods and the estate failed to present the trial court with substantial evidence indicating that the Gilchrists’ checking account contained more than 50% in Social Security funds when SunTrust exercised its right of offset. Accordingly, the trial court did not err when it entered a summary judgment on the estate’s claim of conversion and on Woods’s claim of conversion.

Conclusion

In case number 2090627, we dismiss the appeal insofar as it challenges the trial court’s denial of the estate’s claim for in-junctive relief. We affirm the trial court’s determination to exclude certain telephone calls from evidence, and we affirm its entry of a summary judgment on the estate’s claim of conversion and on Woods’s claims of conversion, negligence, and wantonness.

In the estate’s petition for a writ of mandamus, case number 2100034, we grant the petition and issue a writ directing the trial court to vacate its August 27, 2010, order. We dismiss the appeal in case number 2100089 as moot.

2090627 —APPLICATION FOR REHEARING GRANTED; OPINION OF JUNE 24, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; APPEAL DISMISSED IN PART.

2100034 —ON APPLICATION FOR REHEARING IN CASE NO. 2090627: OPINION OF JUNE 24, 2011, WITHDRAWN; OPINION SUBSTITUTED. PETITION GRANTED; WRIT ISSUED.

2100089 —ON APPLICATION FOR REHEARING IN CASE NO. 2090627: OPINION OF JUNE 24, 2011, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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

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

      . According to Woods, SunTrust made 104 telephone calls to the Gilchrist home.

      . On June 12, 2006, the claims asserted by Woods as the attorney-in fact for Vernon were dismissed as were the claims of the estate of Willa Mae "to the extent that the suit alleges causes of action that did not survive her death.” The trial court later entered a summary judgment in favor of SunTrust on the remaining claims of the estate of Willa Mae. Those claims are not at issue in these appeals.

      .In addition to naming SunTrust as a defendant, Vernon and Woods named SunTrust Banks, Inc., SunTrust Mortgage, Inc., Sun-Trust Real Estate Corporation, SunTrust Personal Loans, Inc., SunTrust Bank Tennessee Valley, and Jeff Kelsey as defendants. The trial court dismissed all the named defendants, with the exception of SunTrust, as parties. Vernon and Woods also asserted claims against several fictitiously named parties, but they never subsequently substituted any actual parties for those fictitiously named defendants. Because "[t]he beginning of trial operates as a dismissal of fictitiously named parties,” Ex parte Dyess, 709 So.2d 447, 452 (Ala.1997) (citing Rule 4(f), Ala. R. Civ. P.), the existence of the fictitiously named parties does not affect the finality of the judgment entered by the trial court.

      . The 90th day following February 22, 2010, was Sunday, May 23, 2010. Therefore, the motion was deemed denied on Monday, May 24, 2010. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala. Civ App. 2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983).


text:
    Ex parte EL REPOSO NURSING HOME GROUP, INC. (In re Carole Patterson v. El Reposo Nursing Home Group, Inc.).
    2100745.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.

      Tom Burgess and Ethan R. Dettling of Smith, Spires & Peddy, P.C., Birmingham, for petitioner.
    Terry B. Rochester of Harold G. Peck & Associates, Florence, for respondent.
   THOMAS, Judge.

This is the second time that El Reposo Nursing Home Group, Inc. (“El Reposo”), has sought mandamus relief from an order of the Lauderdale Circuit Court requiring El Reposo to “immediately assume payment for treatment of [Carole Patterson’s] injury and pain” arising out of an April 21, 2006, work-related injury Patterson sustained while employed by El Reposo. See Ex parte El Reposo Nursing Home Group, Inc., 70 So.3d 424, 426 (Ala.Civ.App.2011). The facts underlying the petition, with which El Reposo agrees, were set out in our earlier opinion:

“In April 2006, Carole Patterson was employed by El Reposo Nursing Home Group, Inc., as a certified nursing assistant in a nursing home run by El Repo-so. On April 21, 2006, Patterson was assisting a resident of the nursing home and she fell. She reported the incident, and El Reposo filed an Employer’s First Report of Injury indicating that Patterson had pulled her back assisting a patient. Patterson was sent to see a physician, who diagnosed her with an ‘upper thoracic strain,’ and she returned to work the following day. Patterson left the employment of El Reposo in May 2006.
“Patterson had seen a physician in 2004 and had undergone an MRI at that time. The 2004 MRI revealed a bulging disk at C6-7. Patterson had begun seeing her personal physician, Dr. Jeff Goodman, in February 2006, complaining of pain in her shoulders, neck, back, and arms. Patterson had seen Dr. Goodman on April 12, 2006, for those same complaints.
“After her accident on April 21, Patterson next saw Dr. Goodman on May 31, complaining of the same general symptoms in her neck and shoulders. Patterson did not tell Dr. Goodman that she had injured herself at work on April 21. In fact, although Patterson saw Dr. Goodman on August 3, October 18, and October 28, 2006, each time complaining of the same or similar symptoms that had continued to worsen, Patterson never mentioned her April 21 work-related accident to Dr. Goodman. Patterson first related her symptoms and the pain she was feeling to the April 21, 2006, accident on October 9, 2007, when she sought pain-management treatment from Dr. Michael Gosney. Dr. Goodman then referred Patterson to an orthopedic surgeon for consultation and possible surgery.
“In May 2007, Patterson filed an action against El Reposo in which she sought workers’ compensation benefits. On Patterson’s motion, the trial court bifurcated the trial, holding a trial on the issue of compensability only on May 29, 2009. After that hearing, in June 2009, the trial court entered a judgment finding Patterson’s injuries compensa-ble. In pertinent part, the court’s order, which did not contain detailed findings of facts and conclusions of law, reads:
“ ‘On May 29, 2009, the court conducted a trial on the issue of legal and medical causation, which addressed coverage of this claim under the Workers’ Compensation Act.
“ ‘The court finds that [Patterson] presented substantial evidence that she suffered an injury arising out of and in the course of her employment as the phrase is defined in the Code of Alabama. The court therefore finds the totality of the evidence substantial enough to satisfy the required showing of medical causation.’
“In October 2009, Dr. Martin Jones, the physician El Reposo selected as Patterson’s authorizing treating physician, examined Patterson. Dr. Jones determined that Patterson was not a candidate for cervical disk surgery. He said that Patterson would benefit from pain-management treatment but further stated that such .treatment should be paid for by private insurance ‘since she was having the same symptoms prior to her [work-related] injury.’ Based on Dr. Jones’s opinion that any pain-management treatment was not necessitated by the work-related injury, El Reposo refused to authorize pain-management treatment for Patterson. Patterson then filed a motion seeking to have El Reposo held in contempt and to order El Reposo to provide pain-management treatment.
“The trial court declined to hold El Reposo in contempt. However, the trial court ordered that El Reposo either provide another orthopedic physician to examine Patterson to determine the necessity or appropriateness of surgical intervention or provide Patterson pain-management treatment. El Reposo offered Patterson an appointment with a second orthopedic physician, who Patterson rejected. El Reposo then presented Patterson with a panel of four orthopedic physicians from which to choose; Patterson selected Dr. E. Carter Morris.
“Dr. Morris examined Patterson on March 22, 2010. Like Dr. Jones, Dr. Morris felt that Patterson was not a good candidate for cervical surgery. He also stated that he agreed with Dr. Jones that Patterson may need pain-management treatment but that any such treatment ‘should be paid for by her primary health insurance.’ An excerpt of Dr. Morris’s deposition testimony indicates that he did not think, that the pain-management treatment should be paid for by El Reposo because Patterson had been ‘showing evidence of pain before the injury.’ Dr. Morris also testified that he did not think that Patterson’s symptoms related to Patterson’s April 2006 cervical strain or any of the findings on her MRI scans. He stated that he believed that Patterson had reached maximum medical improvement (‘MMI’) and that, in his practice, he typically placed a person who suffered a cervical strain at MMI between three and six months after the injury. Based on Dr. Morris’s opinion, El Reposo again refused to provide pain-management treatment to Patterson, prompting her to file another motion to hold El Reposo in contempt and to seek an order compelling medical treatment.
“The trial court granted Patterson’s motion on September 27, 2010, and ordered El Reposo to provide pain-management treatment to Patterson within 10 days. In its order, the trial court stated that it had ‘previously found that [Patterson] presented substantial evidence that her injuries and symptoms of pain are the result of an injury arising out of and in the course of her employment on April 21, 2006.’ ”

Ex parte El Reposo Nursing Home Group, 70 So.3d at 425-27.

Based on our holding in Ex parte Cowabunga, Inc., 67 So.3d 136, 138 (Ala.Civ.App.2011), which required that the trial court in that case make detailed findings of fact and conclusions of law in an order determining compensability so that this court could properly review the determination on mandamus review, we denied El Reposo’s first petition for the writ of mandamus and instructed the trial court to “enter an amended order addressing the compensability issue.” Ex parte El Reposo Nursing Home Group, 70 So.3d at 428. The trial court complied, entering a detailed order on March 31, 2011, explaining its determination that Patterson’s April 21, 2006, injury and the pain resulting from it were both related to the accident that had occurred on that date while Patterson was engaged in her work duties. In pertinent part, that amended order reads:

“The Court recognizes that Ms. Patterson has a history of neck pain over the course of her employment; however, she had treated with Dr. Goodman on April 12, 2006, immediately prior to the accident on April 21, 2006. Dr. Goodman did a cervical spine series which revealed no fractures, dislocations, tumors, or lytic lesions. The Court also finds that at all times during Ms. Patterson’s employment with the defendant, El Reposo, up to the accident on April 21, 2006, Ms. Patterson was performing all of the duties of her job without restrictions.
“2. ... At the time of the injury on April 21, 2006, Ms. Patterson was performing without restriction all of the duties required by her employment at El Reposo Nursing Home. The Court finds that although she was being treated at the time of the April 21, 2006, accident by Dr. Goodman for bilateral rotator cuff tendinitis and associated pain radiating into the neck, ... there was no evidence at that time of a herniated disc or serious neck related injury. The Court finds Ms. Patterson’s testimony of new and excruciating pain which she had never felt before during the incident of April 21, 2006, to be credible, related to the incident of April 21, 2006, and consistent with Dr. Goodman’s deposition testimony that on May 31, 2006, during his examination, he noted that her condition seemed to be worsening with sudden movements, that she had pain at night, that the pain was throbbing in nature, and that she had numbness and tingling, all of which were new and different complaints from his examination prior to April 21, 2006. The Court therefore finds the totality of the evidence substantial enough to satisfy the required showing of medical causation.
“3. The Court notes that [Patterson] prior to the onset of her injury on April 21, 2006, was able to perform all the duties of her occupation, including heavy-lifting, and that after the said incident, she is no longer able to do so. The Court finds that the herniated discs at C5-C6 and C6-C7 and the resulting pain in her neck which radiates to both arms are the result of the accident on April 21, 2006, and is a compensable injury under the Workers’ Compensation Act of Alabama.”

El Reposo again seeks a writ of mandamus directing the trial court to vacate its September 2010 order and its March 2011 amended order insofar as they require El Reposo to provide and pay for pain-management treatment of Patterson’s injuries.

“ ‘ “[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).’ ”

Ex parte Builders & Contractors Ass’n of Mississippi Self-Insurer’s Fund, 980 So.2d 1003, 1006 (Ala.Civ.App.2007) (quoting Ex parte Alloy Wheels Int'l, Ltd., 882 So.2d 819, 821 (Ala.2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala.2009)).

El Reposo makes several arguments in support of its petition for a writ of mandamus. Generally, however, El Reposo argues that, in its orders, the trial court has improperly usurped the role of the authorized treating physicians and has itself made a medical decision regarding the proper medical treatment to be provided to Patterson. El Reposo contends that it is not required to provide pain-management treatment to Patterson because Dr. Jones and Dr. Morris have both opined that Patterson does not require pain-management treatment to treat any symptoms stemming from her work-related injury. Those opinions, says El Reposo, are medical opinions based on medical facts, and, El Reposo contends, the trial court is not free to disregard those medical opinions and order medical treatment that an authorized treating physician has not found necessary.

El Reposo is correct in arguing that it is the role of the authorized treating physician to direct the medical treatment of the injured employee. See Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085, 1088 (Ala.2001) (explaining that, as a “general rule,” the authorized treating physician is to direct the treatment of the injured employee and that an employer cannot refuse the injured employee treatment recommended by that physician); City of Auburn v. Brown, 638 So.2d 1339, 1341 (Ala.Civ.App.1993) (stating that the authorized treating physician and not the employer is to dictate the injured employee’s medical treatment). El Reposo is also correct that it is required to pay for only that medical treatment reasonably necessary to treat Patterson’s work-related injury and associated symptoms. See Ala. Code 1975, § 25-5-77(a) (stating, among other things, that an employer must pay for “reasonably necessary medical and surgical treatment”). Of course, if a dispute arises over whether a particular course of medical treatment is reasonable, the issue may be submitted to the trial court for resolution. § 25-5-77(a) (providing that disputes as to the necessity of medical services requested are to be determined by the court); see also Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002) (“[WJhere an employee has received recommendations from both the initial and the second authorized treating physicians in accordance with the procedures outlined in § 25-5-77(a), and the employee is able to prove that the treatment recommended by the authorized physicians does not fall within the parameters of what would be ‘reasonably necessary’ to treat his or her injury or illness, but that another (unauthorized) physician has recommended a treatment that does fall within such parameters, nothing in the first or last sentences of § 25-5-77(a), nor our caselaw, prevents an employee from then proceeding to seek judicial vindication of his [or her] right to the latter treatment.”).

Based on these principles, El Reposo argues that the trial court erred by directing that El Reposo provide pain-management treatment to Patterson despite the opinions of Dr. Jones and Dr. Morris that such treatment would not relate to Patterson’s work-related injury. Thus, El Repo-so contends, the trial court is attempting to override the opinions of the authorized treating physicians and to direct Patterson’s medical treatment. El Reposo admits that, in certain circumstances, a trial court may consider whether a treatment decision made by the authorized treating physician should be disregarded; however, El Reposo argues that a trial court may do so only after evidence on the issue has been adduced, which, El Reposo asserts, has not occurred in the present case.

Patterson argues, however, that Dr. Jones and Dr. Morris were not making a treatment decision but, instead, by concluding that any pain-management treatment would relate to a preexisting condition and not the work-related injury, were making a decision regarding medical causation of her pain symptoms, an issue which had already been determined in Patterson’s favor by the trial court. Patterson’s motion for contempt and to compel medical treatment, which is an exhibit to the mandamus petition, and the trial court’s March 2011 amended order indicate that El Reposo disputed the compens-ability of Patterson’s injury and associated pain on the ground that she suffered from a preexisting condition and therefore that any pain or other symptoms she experienced had not resulted from Patterson’s work-related accident on April 21, 2006. A review of the detailed March 2011 order reveals that the trial court determined that Patterson’s work-related accident caused or contributed to her injury and resulting disability and that her pain symptoms are not attributable to a preexisting injury. See Ex parte Valdez, 636 So.2d 401, 405 (Ala.1994) (explaining that employment must be a contributing cause but is not required to be the sole cause of an injury in order for an injury to be compensable). After resolving the issue of compensability, the trial court further determined that El Reposo was required to provide medical care to Patterson to treat her April 21, 2006, injury and its associated pain symptoms.

The question presented by El Re-poso’s petition is this: whether the opinions of Dr. Jones and Dr. Morris, who both opined that Patterson’s April 21, 2006, injury had resolved and that her continued symptoms did not result from Patterson’s work-related injury, undermine the com-pensability determination previously made by the trial court. El Reposo objects to characterizing the opinions of Dr. Jones and Dr. Morris as being based on a determination by those physicians that Patterson had a preexisting condition. According to El Reposo, both physicians were making purely medical judgments regarding what treatment should be provided to Patterson to treat her work-related injury, which judgments El Reposo insists are entrusted not to the trial court but to the authorized treating physician. Although neither physician specifically stated that Patterson had a “preexisting condition,” the evidence in the materials attached to El Reposo’s petition and Patterson’s response leads us to conclude that Dr. Jones and Dr. Morris both determined that Patterson’s complaints of pain were not traceable to her work-related injury, a determination that, although certainly a medical determination, is also at the heart of the medical-causation issue, the resolution of which is entrusted not to an authorized treating physician but to the trial court. In this case, the trial court had already determined, in the face of the argument that Patterson’s injury, pain symptoms, and any resulting disability resulted from a preexisting condition, that the April 21, 2006, accident had contributed in some way to Patterson’s injury and that her complaints of pain were the result of that injury and not of a preexisting condition; in other words, the trial court had resolved the medical-causation issue in Patterson’s favor. We fail to see how the opinions of Dr. Jones and Dr. Morris, which directly conflict with the trial court’s resolution of the compensability issue in Patterson’s favor, serve to prevent the inescapable conclusion that the trial court’s medical-causation determination forecloses mandamus relief to El Reposo.

As is abundantly clear from the trial court’s March 2011 order, the trial court had already rejected El Reposo’s argument that the pain Patterson suffers is related to a preexisting condition and had determined instead that Patterson’s work-related injury resulted in the pain symptoms of which she complains; that is, the trial court had resolved the medical-causation issue in Patterson’s favor before El Reposo authorized treatment by Dr. Jones and then Dr. Morris. Regardless of whether Dr. Jones and Dr. Morris have formed the medical opinion that Patterson’s pain is not related to her work-related injury, El Reposo has the duty to provide treatment for Patterson’s pain because the trial court has concluded that medical causation exists. Based on the trial court’s conclusion that Patterson established medical causation, the trial court properly ordered El Reposo to provide reasonably necessary medical care to Patterson. This medical care should include pain-management treatment because both Dr. Jones and Dr. Morris believe that such treatment is warranted; their further belief that such treatment should not be considered the responsibility of El Re-poso is irrelevant. We therefore deny El Reposo’s petition for a writ of mandamus because it cannot establish a clear legal right to the relief it seeks.

PETITION DENIED.

THOMPSON, P.J., concurs.

PITTMAN, BRYAN, and MOORE, JJ., concur in the result, without writings.

      . Although Patterson argues in her response to El Reposo's petition that neither Dr. Morris nor Dr. Jones should be considered her authorized treating physician because El Reposo forfeited its right to choose her authorized treating physician by refusing to treat her injury until after she had successfully proved medical causation at trial, see Fluor Enters., Inc. v. Lawshe, 16 So.3d 96, 103 (Ala.Civ.App.2009), it appears that, even if El Reposo had forfeited its right to select her authorized treating physician, a decision which we need not make in this opinion, Patterson permitted El Reposo to select Dr. Jones and then demanded a panel of four physicians from which she chose Dr. Morris. We need not resolve the issue, however, and, thus, for purposes of our discussion here, we will treat Dr. Jones and Dr. Morris as authorized treating physicians.

      . The trial court also determined that Patterson had proved legal causation, of course, but the issues presented by this mandamus petition do not involve questions related to that conclusion.

      . El Reposo argues vehemently that a denial of this petition for a writ of mandamus will result in a grant of permission to "every trial judge in Alabama ... to order a referral to a pain management physician in every case where an injured worker experienced pain as a result of a work-related accident even when the authorized treating physician does not think that such treatment is necessary to treat the work injury." Petition at 16 (emphasis in original). We disagree. By denying this petition for a writ of mandamus, this court is not allowing the trial court to direct Patterson’s medical treatment. Instead, we are refusing to permit El Reposo to rely on a medical opinion that directly conflicts with the trial court’s medical-causation determination to escape its obligation to provide Patterson medical treatment.


text:
    D.D. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100709.
    Court of Civil Appeals of Alabama.
    Sept. 23, 2011.

      Wendy Ghee Draper of Ghee & Draper, Anniston, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen. and asst, gen. counsel, Department of Human Resources, for appellee.
   THOMAS, Judge.

On June 25, 2010, the Calhoun County Department of Human Resources (“DHR”) filed petitions seeking the termination of the parental rights of D.D. (“the mother”) and F.P. (“the father”) to M.L.P. and T.L.P. The petition seeking termination of the parents’ rights to M.L.P. was assigned case number JU-05^429.04; the petition regarding T.L.P. was assigned case number JU-05-430.04. On August 17, 2010, DHR moved to perfect service on the mother by publication; the juvenile court granted that motion on August 23, 2010. The mother was appointed counsel.

The termination trial regarding both M.L.P. and T.L.P. was held in December 2010. Neither the mother nor the father appeared at the trial; the mother’s appointed counsel, however, did appear and represented the mother at trial. After the trial, the juvenile court entered an order in case number JU-05-429.04 terminating the parental rights of only the mother to M.L.P. on January 12, 2011. That order did not address the parental rights of the father, who had been served with the petition in case number JU-05-429.04 in July 2010 but who had not been served with the petition in case number JU-05 — 430.04 at the time of the December 2010 trial. Thus, the January 12, 2011, order in case number JU-05-429.04, which failed to adjudicate all claims pending before the juvenile court, was not a final judgment. See P.D.S. v. Marshall Cnty. Dep’t of Human Res., 32 So.3d 1288, 1290-91 (Ala.Civ.App.2009) (dismissing an appeal as having been taken from a nonfinal judgment because the juvenile court had not adjudicated a pending claim for termination of the father’s parental rights).

The father was subsequently served with the petition in case number JU-05-430.04 in January 2011. On March 15, 2011, the juvenile court entered a judgment in case number JU-05-429.04 terminating the parental rights of the mother and the father to M.L.P. On that same date, the juvenile court entered an order terminating the parental rights of only the mother to T.L.P. in case number JU-05-430.04; that order, because it failed to adjudicate the issue regarding the father’s parental rights, was not a final judgment. See P.D.S., 32 So.3d at 1290-91.

On March 21, 2011, the juvenile court entered orders (“the set-aside orders”) setting aside the January 12, 2011, order and the March 15, 2011, judgment in case number JU-05-429.04 and the March 15, 2011, order in case number JU-05-430.04. No motion seeking such action was filed by any party in either case, but the set-aside orders state that unspecified clerical errors in the earlier orders and judgment had been brought to the juvenile court’s attention by DHR. Also on March 21, 2011, the juvenile court entered in case number JU-05-429.04 a judgment terminating the parental rights of the mother and the father to M.L.P. The juvenile court also entered on that same date an order in case number JU-05-430.04 terminating the parental rights of only the mother to T.L.P.; that order, like the March 15, 2011, order in case number JU-05-430.04, was not a final judgment. See P.D.S., 32 So.3d at 1290-91.

The mother filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., in case number JU-05-429.04 directed to the March 21, 2011, judgment. That motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; Rule 1(B), Ala. R. Juv. P. The mother then appealed the judgment in case number JU-05-429.04 and the order in case number JU-05-430.04 to this court. She argues that DHR had not established that service by publication was proper and, thus, that the juvenile court had erred by permitting service of the mother by publication; therefore, the mother contends, the judgment in case number JU-05-429.04 and the order in case number JU-05-430.04 are void for lack of personal jurisdiction. We are not convinced by the mother’s argument.

At the outset, as part of our customary review to be certain that this court has jurisdiction over this appeal, we conclude that the set-aside order entered by the juvenile court on March 21, 2011, in case number JU-05-429.04 was effective to set aside the juvenile court’s earlier judgment in case number JU-05-429.04. The juvenile court’s March 21, 2011, set-aside order in case number JU-05-429.04 was effective to set aside the March 15, 2011, judgment terminating the mother’s parental rights regarding M.L.P. because the juvenile court retains the power to modify or set aside its own judgments during the 14-day postjudgment period applicable to juvenile-court judgments. See Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala.2008) (citing Ennis v. Kittle, 770 So.2d 1090, 1091 n. 1 (Ala.Civ.App.1999)) (“Rule 59 likewise allows a trial court to alter, amend, or vacate its judgment sua sponte within 30 days of the entry of the judgment....”); Rule 1(B), Ala. R. Juv. P. (providing that postjudgment motions pursuant to Rule 59 are to be brought within 14 days after entry of a judgment in juvenile court). In addition, the juvenile court had jurisdiction to modify the January 12, 2011, order in case number JU-05-429.04, despite the fact that it had been entered two months earlier, and the March 15, 2011, order in case number JU-05-430.04; as noted above, neither order was a final judgment because each order failed to address the parental rights of the father, whose rights DHR also sought to terminate. See P.D.S., 32 So.3d at 1290-91. Those interlocutory orders were subject to revision at any time. Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala.Civ.App.1979) (“An interlocutory judgment is subject to modification at any time before final judgment.”).

However, because the March 21, 2011, order terminating the mother’s parental rights to T.L.P. in case number JU-05-430.04 also fails to address the issue regarding the parental rights of the father, that order is also not a final judgment. See P.D.S., 32 So.3d at 1291. The juvenile court’s March 21, 2011, order in case number JU-05-30.04 is therefore not capable of supporting an appeal to this court. See id. Accordingly, we must dismiss the mother’s appeal insofar as it is from the juvenile court’s March 21, 2011, order in case number JU-05-430.04. See id.

We can, however, address the mother’s appeal from the March 21, 2011, judgment terminating her parental rights to M.L.P. in case number JU-05-429.04. That judgment terminated the parental rights of both the mother and the father, thereby resolving all the claims pending before the juvenile court. See P.B. v. P.C., 946 So.2d 896, 898 (Ala.Civ.App.2006). In the mother’s timely postjudgment motion challenging the March 21, 2011, judgment terminating her parental rights to M.L.P. in case number JU-05-429.04, the mother challenged the sufficiency of the evidence to support the termination of her parental rights and argued that she had not been notified of the trial date.

The mother argues on appeal that DHR did not establish that service by publication was proper because it did not explain in its affidavit in support of its motion seeking to serve the mother by publication what efforts it had made to locate the mother’s address for personal service. However, as DHR points out, the mother never asserted at any point in the juvenile-court proceedings that service by publication was improper. Although the mother did not appear at the December 2010 trial, the mother’s attorney appeared on her behalf and did not lodge any objection to the juvenile court’s jurisdiction over the mother during the proceeding. In fact, at the outset of trial, someone at the trial stated that the mother had been properly served, and, later in the trial, the juvenile court specifically questioned DHR regarding its attempts at service; the mother’s attorney did not interpose any objection to service of process by publication at any point in the trial. The mother’s post-judgment motion raised the issue of notice of the trial date; however, it did not challenge the sufficiency of service of process.

An argument as to insufficient or improper service of process may be waived if it is not raised in a motion to dismiss or in the first responsive pleading or a proper amendment thereto. See Rule 12(h)(1), Ala. R. Civ. P. A general appearance by a party either in person or through an attorney waives any objection to improper service of process. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 53 (Ala.2003) (quoting Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972)) (“ ‘A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court.’ ”). An appearance may be made by filing an answer or other pleading, id. (“‘The filing of a pleading is a general appearance.’ ”), or by voluntarily appearing for and participating in trial. Boudreaux v. Kemp, 49 So.3d 1190, 1197 (Ala.2010) (stating that “it is true that [the Alabama Supreme] Court has previously acknowledged that a defendant may waive defects in service by voluntarily appearing in the proceedings” but concluding that the parties in question had not appeared or participated in the proceedings at issue). The mother’s attorney’s failure to raise an issue regarding service of process at the trial waived that issue, and we cannot consider it on appeal. See Klaeser v. Milton, 47 So.3d 817, 821 (Ala.Civ.App.2010) (holding that the failure to challenge service of process at the time the appellant first appeared before the trial court after the entry of a default judgment against her waived the defense); D.B. v. M.A., 975 So.2d 927, 937-38 (Ala.Civ.App.2006) (determining that an adoptive couple who appeared in and participated in the juvenile-court proceedings and who had not raised the issue of insufficiency of proper service of process until their postjudgment motion had waived their right to proper service of process and could not raise the argument on appeal). The mother makes no further arguments on appeal; therefore, the March 21, 2011, judgment terminating the mother’s parental rights to M.L.P. in case number JU-05-429.04 is affirmed.

AFFIRMED AS TO CASE NUMBER JU-05-429.04; APPEAL DISMISSED AS TO CASE NUMBER JU-05-430.04.

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

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

      . The transcript reflects the trial court’s intention to enter a judgment terminating the rights of the father, who was incarcerated at the time of the December 2010 trial, as soon as proper service was perfected upon him in case number JU-05-430.04.

      . The mother also filed what purports to be a postjudgment motion directed to the order in case number JU-05-430.04; however, because the March 21, 2011, order in case number JU-05-430.04 was not a final judgment, and because a " 'Rule 59 motion may be made only in reference to a final judgment,’ ” Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) (quoting Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999)), the mother’s motion in case number JU-05-430.04 was not a postjudgment motion.

      . The father did not appeal the termination of his rights to M.L.P. in case number JU-05-429.04.

      . We note that the juvenile court was not required to set aside its March 15, 2011, judgment in case number JU-05-429.04 in order to correct mere clerical errors. The juvenile court had the power to correct any clerical errors in its judgment pursuant to Rule 60(a), Ala. R. Civ. P. An order correcting a clerical error in a judgment pursuant to Rule 60(a) does not affect the finality of the original judgment and does not toll the time for taking an appeal. Levine v. Malaga Rest., Inc., 501 So.2d 1231, 1233 (Ala.Civ.App.1987) (quoting Barris v. Bob's Drag Chutes & Safety Equip., 717 F.2d 52, 55 (3rd Cir.1983)). “The amendment [to correct a clerical error] relates back to the original judgment and becomes a part of it.” Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala.Civ.App.1997). However, in its March 21, 2011, set-aside order, the juvenile court specifically set aside the March 15, 2011, judgment, and, as explained in the text of this opinion, it clearly had the authority to do so. Accordingly, we will not treat the March 21, 2011, judgment in case number JU-05-429.04 as a corrected judgment under Rule 60(a).