author: PITTMAN, Judge.

text:
    Ex parte RCHP-FLORENCE, LLC, d/b/a Eliza Coffee Memorial Hospital and Shoals Hospital. (In re RCHP-Florence, LLC, d/b/a Eliza Coffee Memorial Hospital and Shoals Hospital v. Colbert County Northwest Alabama Health Care Authority, d/b/a Helen Keller Hospital, et al.).
    2110963.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Certiorari Denied June 6, 2014 Alabama Supreme Court 1121500.

      James E. Williams and C. Mark Bain of Melton, Espy & Williams, P.C., Montgomery, for petitioner.
    G. Dennis Nabors of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Montgomery; and William G. Somerville of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for respondents.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for amicus curiae State Health Planning and Development Agency, in support of the petitioners’ application for rehearing.
   PITTMAN, Judge.

This court’s opinion of April 12, 2013, is withdrawn, and the following is substituted therefor.

RCHP-Florence, LLC, an entity doing business as Eliza Coffee Memorial Hospital and Shoals Hospital (“RCHP-Florence”), petitions this court for a writ of mandamus directing the Montgomery Circuit Court (“the circuit court”) to set aside a discovery order. For the reasons discussed below, we deny RCHP-Florence’s petition.

On November 3, 2010, RCHP-Florence filed a petition pursuant to § 41-22-ll(a), Ala.Code 1975, with the State Health Planning and Development Agency (“SHPDA”). RCHP-Florence’s petition asked SHPDA’s Certificate of Need Review Board (“the CONRB”) to issue a declaratory ruling that Colbert County Northwest Alabama Health Care Authority, an entity doing business as Helen Keller Hospital (“Helen Keller”), was required to cease performing surgical procedures at an outpatient-surgery center located on its campus (“the outpatient-surgery center”) until it obtained a certificate of need (“CON”) from the CONRB. On November 12, 2010, Helen Keller intervened in order to oppose RCHP-Florence’s petition. The CONRB held a hearing regarding RCHP-Florence’s petition on November 17, 2010. At that hearing, RCHP-Florence began presenting evidence in support of its petition; however, before the parties’ presentation of evidence was completed, the CONRB and the parties, at the request of the CONRB, entered into an agreement on the record (“the agreement”) to extend the 45-day period specified by § 41-22-ll(b), Ala.Code 1975 (“the 45-day period”), for the CONRB to issue an express ruling regarding RCHP-Florence’s petition until the next regularly scheduled meeting of the CONRB on January 19, 2011. However, on January 18, 2011, the governor placed a moratorium on meetings of the CONRB, and, consequently, the January 19, 2011, meeting of the CONRB was canceled.

On February 4, 2011, RCHP-Florence filed a notice of appeal with SHPDA, and, on March 4, 2011, RCHP-Florence filed a complaint in the circuit court stating three claims. The first claim sought judicial review of the denial by operation of law of the petition RCHP-Florence had filed with SHPDA pursuant to § 41-22-ll(a). The second claim sought a declaratory ruling by the circuit court, pursuant to § 41-, 22-10, Ala.Code 1975, and the Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975, that Helen Keller was required to cease performing surgical procedures at the outpatient-surgery center until it obtained a CON from the CONRB. The third claim sought an injunction from the circuit court, pursuant to § 22-21-276(a), Ala.Code 1975, enjoining Helen Keller from performing surgical procedures at the outpatient-surgery center until it obtained a CON from the CONRB. Thereafter, Helen Keller propounded certain discovery requests that RCHP-Florence considered objectionable, and RCHP-Florence filed a motion for a protective order. The circuit court orally denied that motion. Subsequently,' RCHP-Florence timely filed a petition asking this court to issue a writ of mandamus directing the circuit court to set aside its order denying the motion for a protective order. Because the circuit court had not rendered and entered a written order ruling on the motion for a protective order as required by Rule 58, Ala. R. Civ. P., this court instructed the circuit court to enter such an order, and the circuit court did so.

Thereafter, we called for an answer and briefs. Helen Keller filed an answer, and both RCHP-Florence and Helen Keller filed briefs. Although RCHP-Florence had named SHPDA as a defendant in the complaint RCHP-Florence had filed in the circuit court, SHPDA did not file an answer or brief.

In reviewing the papers filed with RCHP-Florence’s mandamus petition and the answer to that petition filed by Helen Keller, we noted an issue regarding the jurisdiction of the circuit court over RCHP-Florence’s first claim that the parties had not addressed. Accordingly, we called for the parties to submit letter briefs addressing that issue. RCHP-Florence and Helen Keller filed letter briefs; however, SHPDA did not. 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)), we must first determine whether RCHP-Florence’s claims invoked the jurisdiction of the circuit court.

Because RCHP-Florence’s first claim sought judicial review of a decision of an administrative agency and because the timely filing of a notice of appeal is necessary to invoke the jurisdiction of the circuit court to review a decision of an administrative agency pursuant to § 41-22-20, Ala.Code 1975, see Krawczyk v. State Dep’t of Pub. Safety, 7 So.3d 1035, 1037 (Ala.Civ.App.2008) (“[A] timely filing [of a notice of appeal] under § 41-22-20(d)[, Ala.Code 1975,] is jurisdictional.”), we must determine whether RCHP-Florence timely filed its notice of appeal in order to determine whether RCHP-Florence’s first claim invoked the jurisdiction of the circuit court.

Section 41-22-20(d), Ala.Code 1975, provides that a notice of appeal from a final decision of an administrative agency such as the CONRB of SHPDA must be filed with the pertinent administrative agency within 30 days of the date the petitioner receives notice of, or other service of, the decision rendered by that administrative agency. When the decision of the administrative agency is the denial of a petition or application by operation of law due to the administrative agency’s failure to rule on that petition or application within a specified period, a notice of appeal from such a denial must be filed within 30 days after the petition or application was denied by operation of law. See Noland Health Servs., Inc. v. State Health Planning & Dev. Agency, 44 So.3d 1074, 1081-82 (Ala.2010) (holding that the period for seeking judicial review of denial of CON application not expressly ruled upon by the CONRB begins to run at the time that application has been denied by operation of law). Section 41-22-11(b) provides that, when a petition for a declaratory ruling is filed with an administrative agency pursuant to § 41-22-ll(a), “[failure of the agency to issue a declaratory ruling on the merits within 45 days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review.” In the present case, the 45th day after the filing of RCHP-Florence’s petition with SHPDA was December 18, 2010, which was a Saturday. However, § 1-1-4, Ala.Code 1975, provides that, if the last day of a period within which an act must be done falls on a Sunday, a legal holiday as defined in § 1-3-8, Ala.Code 1975, “or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.” Consequently, because SHPDA, like many agencies of this State, is closed for business on Saturday, the last day allowed by § 41-22-ll(b) for the CONRB to issue an express ruling in response to RCHP-Florence’s petition was Monday, December 20, 2010.

However, RCHP-Florence argues that the 45-day period did not expire until January 19, 2011, because, RCHP-Florence says, the agreement extended the 45-day period until January 19, 2011. Thus, according to RCHP-Florence, it had 30 days from January 19, 2011, to file a notice of appeal, and, it asserts, it timely filed that notice of appeal on February 4, 2011. We disagree.

Section 41-22-11(b) expressly states that the “[fjailure of the agency to issue a declaratory ruling on the merits within 45 days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review,” and it contains no language authorizing either an administrative agency such as the CONRB or the parties to a proceeding initiated by the filing of a petition pursuant to § 41-22-ll(a) to extend the 45-day period by agreement. When the legislature has intended to authorize extensions by agreement of periods for administrative agencies to issue express rulings in response to petitions or applications, it has included language expressly authorizing such extensions in the pertinent statute. See, e.g., § 22-21-275(3), Ala.Code 1975 (expressly authorizing SHPDA to extend the 90-day period for the CONRB to rule on a CON application for a period not to exceed 30 days with or without the consent of the applicant and to extend that 90-day period without limitation with the consent of the applicant). Consequently, the legislature’s omitting language from § 41-22-ll(b) that would expressly authorize extensions of the 45-day period by agreement clearly and unambiguously evidences the intent of the legislature not to authorize such extensions.

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687 (Ala. 1991).”

IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). In the case of § 41-22-11(b), the plain language of the statute means what it says— if an administrative agency does not issue an express ruling in response to a § 41-22-11(a) petition within 45 days, the petition is denied on the merits by operation of law, and that denial is subject to judicial review. Accordingly, in the present case, we conclude that the agreement did not extend the 45-day period and that, therefore, the 45-day period expired on December 20, 2010.

In the letter brief RCHP-Florence filed in response to our request that the parties address the issue whether the circuit court had jurisdiction over RCHP-Florence’s first claim, RCHP-Florence asserted that § 41-22-11(b) authorizes extensions of the 45-day period by agreement because, it said, extensions by agreement of the 45-day period are analogous to agreements of the parties to extend the period for a trial court to rule on a postjudgment motion pursuant to Rule 59.1, Ala. R. Civ. P. However, we do not find an extension by agreement of the 45-day period to be analogous to an extension by agreement of the period for a trial court to rule on a post-judgment motion pursuant to Rule 59.1 because Rule 59.1 expressly authorizes an extension by agreement of the period for a trial court to rule on a postjudgment motion, whereas § 41-22-11(b) does not expressly authorize an extension by agreement of the 45-day period.

In its application for rehearing and supporting brief, RCHP-Florence has argued (1) that it was lulled into inaction by the CONRB’s request that it enter into the agreement and that, therefore, the doctrine of equitable tolling should be applied so as to extend the 30-day period for RCHP-Florence to file its notice of appeal with SHPDA; (2) that, if this court holds that the 45-day period cannot be extended by agreement, it should make the application of that holding prospective only; (3) that, if this court holds that the 45-day period cannot be extended by agreement, it will be thwarting the intent of § 41-22-11(b) as evidenced by the Commentary to that Code section; (4) that, if this court holds that the 45-day period cannot be extended by agreement, it will not be giving the CONRB’s interpretation of § 41-22-ll(b) the great deference it is due; and (5) that, because § 41-22-ll(b) is silent regarding whether the 45-day period can be extended by agreement, this court should look beyond the plain language of § 41-22-11(b) to determine the intent of the legislature regarding whether the 45-day period can be extended by agreement. RCHP-Florence could have presented all of those arguments in its letter brief, but it did not do so. Instead, it has presented those arguments for the first time on application for rehearing. It is well settled that an appellate court will not consider arguments made for the first time on application for rehearing. See, e.g., Fort James Operating Co. v. Stephens, 996 So.2d 883, 843 (Ala.2008) (‘““The well-settled rule of [the Alabama appellate courts] precludes consideration of arguments made for the first time on rehearing.” ’ ” (quoting Riscorp, Inc. v. Norman, 915 So.2d 1142, 1155 (Ala.2005) (opinion on application for rehearing), quoting in turn Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002))). This rule applies even if the arguments raised for the first time on application for rehearing pertain to an important issue. Id. For example, in Fort James Operating Co., the supreme court stated:

“Stephens has raised for the first time on application for rehearing his argument that this Court misapprehended the setoff provision in § 25-5-57(c)(3), Ala.Code 1975, by granting Fort James a setoff for wages Stephens earned through actual labor, not by way of a ‘sympathy salary paid by Fort James because of Stephens’s injury and inability to work. ‘ “The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.” ’ Riscorp, Inc. v. Norman, 915 So.2d 1142, 1155 (Ala.2005) (opinion on application for rehearing) (quoting Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala. 2002)). Accordingly, because Stephens attempts to raise this particular argument for the first time in his application for rehearing, we cannot consider it. Because this is an important issue in the area of workers’ compensation law that does not appear to have been definitively addressed by this Court, we will await a proceeding in which this issue is both squarely before this Court for adjudication and adequately briefed.”

996 So.2d at 843-44 (emphasis added). Accordingly, because the arguments RCHP-Florence makes regarding extensions by agreement of the 45-day period in its application for rehearing and supporting brief have been raised for the first time on application for rehearing, we will not consider them. See Fort James Operating Co., supra.

Asserting that it is an amicus curiae, SHPDA has filed a brief in support of RCHP-Florence’s application for rehearing in which SHPDA argues (1) that its interpreting § 41-22-11(b) as authorizing extensions by agreement of the 45-day period is reasonable and should be given deference by this court, (2) that its interpreting § 41 — 22—11(b) as authorizing extensions by agreement of the 45-day period furthers the purposes of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, and (3) that interpreting § 41-22-11(b) as not authorizing extensions by agreement of the 45-day period will have a negative impact on other administrative agencies. Helen Keller ar-gués that SHPDA cannot be an amicus curiae in this mandamus proceeding because it is a party to RCHP-Florence’s action in the circuit court. However, we need not determine whether SHPDA is a party or an amicus curiae in this mandamus proceeding because we cannot consider its arguments regardless of whether it is a party or an amicus curiae. If it is a party, we are precluded from considering its arguments because it has raised them for the first time on application for rehearing. See Fort James Operating Co., supra. On the other hand, if it is an amicus curiae, we cannot consider its arguments because they were not timely raised by RCHP-Florence. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 n. 4 (Ala.2005) (declining to consider an amicus curiae’s arguments insofar as they differed from the appellant’s arguments). Accordingly, we will not consider SHPDA’s arguments.

Because we conclude that § 41-22-ll(b) does not authorize extensions by agreement of the 45-day period and because the CONRB did not issue an express ruling in response to RCHP-Florence’s petition on or before December 20, 2010, RCHP-Florence’s petition was denied by operation of law on December 20, 2010, see § 41-22-11(b), and the 30-day period for RCHP-Florence to file a notice of appeal with SHPDA began to run on December 21, 2010. See Noland Health Servs., Inc. v. State Health Planning & Dev. Agency, supra. That 30-day period expired on January 19, 2011, and RCHP-Florence did not file its notice of appeal with SHPDA until February 4, 2011. Consequently, RCHP-Florence’s notice of appeal was untimely filed, and, thus, RCHP-Florence’s first claim did not invoke the jurisdiction of the circuit court. See Krawczyk v. State Dep’t of Pub. Safety, supra.

RCHP-Florence also argues that, even if its first claim failed to invoke the circuit court’s jurisdiction, its second claim, which stated a claim for a declaratory ruling by the circuit court pursuant to § 41-22-10 and the Declaratory Judgment Act, and its third claim, which stated a claim for an injunction to be issued by the circuit court pursuant to § 22-21-276(a), invoked the jurisdiction of the circuit court. However, we disagree.

Section 41-22-ll(b) provides that the failure of the administrative agency to issue an express ruling in response to a § 41-22-11(a) petition within the 45-day period “shall constitute ... a denial of the merits of the [petition] and shall be subject to judicial review.” (Emphasis added.) It also provides, in pertinent part:

“A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by a court in a -proper proceeding. Such rulings are subject to review in the Circuit Court of Montgomery County ... in the manner provided in Section jl-22-20 for the review of decisions in contested cases.”

(Emphasis added.)

Moreover, § 41-22-20(j), Ala.Code 1975, provides, in pertinent part, that “[t]he review shall be conducted by the court without a jury and, except as herein provided, shall in the review of contested cases be confined to the record and the additions thereto as may be made under subsection (i) of this section.” Furthermore, § 41-22-20(k), Ala.Code 1975, provides:

“[T]he agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

RCHP-Florence’s arguing that its second and third claims independently invoked the circuit court’s jurisdiction is tantamount to arguing that RCHP-Florence is entitled to seek a new adjudication by the circuit court of the same issue that was decided on the merits by the CONRB instead of seeking judicial review of the CONRB’s decision in accordance with §§ 41-22-ll(b) and 41-22-20. The language in § 41 — 22—11(b) stating that a failure of the administrative agency to issue an express ruling in response to a § 41-22-11(a) petition within the 45-day period constitutes a denial of the petition- on the merits, that such a denial on the merits is subject to judicial review, and that such a denial on the merits is binding on the administrative agency and the applicant unless it is altered by the circuit court in a proceeding seeking judicial review in accordance with § 41-22-20 indicates that, once RCHP-Florence sought a declaratory ruling from the CONRB pursuant to § 41-22-11(a) and its petition was denied on the merits by the failure of the CONRB to issue an express ruling in response to the petition within the 45-day period, RCHP-Florence’s only recourse was to seek judicial review of the CONRB’s decision in accordance with § 41-22-20.

RCHP-Florence. argues that, although seeking judicial review would have been its only recourse if the CONRB had issued an express ruling in response to its § 41-22-11(a) petition within'the 45-day period, it is entitled to seek a new adjudication by the circuit court of the issue its § 41-22-11(a) petition presented to the CONRB because, it says, its § 41-22-11(a) petition was denied by operation of law rather than by an express ruling. It is well settled that, when the administrative agency issues an express ruling denying a § 41-22-11(a) petition within the 45-day period, the petitioner’s only recourse is judicial review pursuant to § 41-22-20. See, e.g., State Pers. Bd. v. Wallace, 659 So.2d 683, 686 (Ala.Civ.App.1995) (“[The petitioner’s] only recourse, after requesting that [the administrative agency] issue a declaratory ruling pursuant to § 41-22-11, was an appeal to the Circuit Court of Montgomery County for a judicial review of the declaratory ruling issued by [the administrative agency].”). However, the parties have not cited a case in which an appellate court has squarely decided the specific issue whether a petitioner is entitled to seek a new adjudication by the circuit court of the issue presented to the administrative agency if the petitionei-’s § 41-22-11(a) petition has been denied by operation of law rather than by express ruling.

As support for its argument that, because its § 41-22-11(a) petition was denied by operation of law, it is entitled to seek a new adjudication by the circuit court of the same issue its § 41-22-11(a) petition raised before the CONRB, RCHP-Florence cites dicta in two cases, Stuart v. Historic Warehouse, Inc., 505 So.2d 298 (Ala.1986) (overruled by Alabama Cellular Service, Inc. v. Sizemore, 565 So.2d 199 (Ala.1990)), and Alabama State Personnel Board v. Brashears, 575 So.2d 1149 (Ala.Civ.App.1991). In Stuart, the petitioners sought a declaratory ruling and the issuance of an injunction by the circuit court pursuant to § 41-22-10 without first seeking a declaratory ruling by the pertinent administrative agency pursuant to § 41-22-11(a). The circuit court dismissed the petitioners’ action on the ground that they had failed to exhaust their administrative remedies, and the petitioners appealed. On appeal, the sole issue before the supreme court was “whether a litigant is required to seek a declaratory ruling by a state agency under § 41-22-11, Code of 1975, before he may ask for a declaratory judgment in the circuit court under § 41-22-10, Code of 1975.” 505 So.2d at 300. Holding that a petitioner did indeed have to seek a declaratory ruling by the administrative agency pursuant to § 41-22-11(a) as a prerequisite to seeking a declaratory ruling by the circuit court pursuant to § 41-22-10, the supreme court stated in dicta that “if the agency fails to issue [an express] ruling, the petitioner may resort, as provided in § 41-22-10, to an action for a declaratory judgment in the circuit court.” 505 So.2d at 302. However, Stuart was overruled by Alabama Cellular Service, Inc. v. Sizemore, 565 So.2d 199 (Ala.1990), which held that a petitioner is not required to seek a declaratory ruling by the pertinent administrative agency pursuant to § 41-22-ll(a) as a prerequisite to seeking a declaratory ruling by the circuit court pursuant to § 41-22-10. In dicta, the Sizemore court stated that, if a petitioner elects to seek a declaratory ruling from the pertinent administrative agency pursuant to § 41-22-ll(a), “[t]he failure of the agency to act within 45 days of the request constitutes a denial of the merits of [the] request and is subject to judicial review.” 565 So.2d at 204 (emphasis added).

In Brashears, supra, the petitioners sought a declaratory ruling from the pertinent administrative agency pursuant to § 41-22-11(a), and, within the 45-day period, the administrative agency issued an express ruling denying their petition on the ground that it was not timely filed. The petitioners then timely filed a notice of appeal with the administrative agency pursuant to § 41-22-20 and filed a petition with the circuit court seeking a declaratory ruling pursuant to § 41-22-10 and the Declaratory Judgment Act. The circuit court granted the petitioners the declaratory relief they had sought. The administrative agency appealed and argued that the circuit court had erred in failing to adhere to the standard of review specified by § 41-22-20 for appeals from adverse decisions of administrative agencies. The petitioners argued that, because the administrative agency had based its denial of their petition on the ground that it was not timely filed, they were entitled to seek a declaratory ruling by the circuit court pursuant to § 41-22-10. Reversing the judgment of the circuit court, this court held that, because the petitioners had sought a declaratory ruling by the administrative agency pursuant to § 41 — 22—11(a), the circuit court was limited to reviewing the decision of the administrative agency in accordance with the standard of review specified by § 41-22-20. In obiter dictum, this court stated that, “[i]f the [administrative agency] had done nothing within [the 45-day period in response to the petitioners’ § 41-22-ll(a) petition], then clearly there would be nothing for the circuit court to review, and the [petitioners] could have resorted to § 41-22-10.” 575 So.2d at 1151. Because, in Brashears, this court did not have before it a fact situation in which the administrative agency had failed to issue an express ruling in response to a § 41-22-11(a) petition within the 45-day period, the quoted sentence does not constitute part of this court’s holding in Brashears; it constitutes mere obiter dictum that is not binding on this court. See, e.g., Wilkinson v. Rowe, 266 Ala. 675, 680, 98 So.2d 485, 440 (1957) (opinion on application for rehearing) (“If we were to express an opinion based on facts not shown by the record in this case, that opinion would be dicta and would not be binding in subsequent cases.”).

Moreover, that obiter dictum is erroneous in stating that, if the administrative agency had done nothing within the 45-day period, there would be nothing for the circuit court to review. First, § 41-22-11(b) expressly provides that the failure of the administrative agency to issue an express ruling within the 45-day period constitutes a denial of a § 41-22-11(a) petition on the merits that is subject to judicial review. Second, § 41 — 22—20(i), Ala. Code 1975, authorizes the circuit court to remand the matter to the administrative agency for further proceedings if the circuit court finds that additional evidence is material and that there were good reasons for the failure to present it to the administrative agency previously. Third, § 41-22-20(k) provides that, in reviewing the decision of an administrative agency, the circuit court “may ... remand the case to the agency for taking additional testimony and evidence or for further proceedings.” Thus, an administrative agency’s failure to issue an express ruling in response to a § 41-22-11(a) petition within the 45-day period does not mean that there would be nothing for the circuit court to review pursuant to § 41-22-20.

Although this court did not address the specific issue whether the denial of a petitioner’s § 41-22-11(a) petition by operation of law rather than by express ruling within the 45-day period entitles the petitioner to seek a new adjudication by the circuit court pursuant to § 41-22-10 in Auburn Medical Center, Inc. v. State Health Planning & Development Agency, 814 So.2d 268 (Ala.Civ.App.2001) (“Auburn II”), our holding in that case necessarily establishes that a denial of a § 41-22-11(a) petition by operation of law does not entitle a petitioner to seek a new adjudication by the circuit court. In that case, Auburn Medical Center filed a § 41-22-11(a) petition with SHPDA seeking a declaratory ruling by the CONRB before the effective date of Act No. 98-341, Ala. Acts 1998, which amended § 22-21-275, Ala. Code 1975,- to provide that a party aggrieved by a decision by SHPDA is not required to request reconsideration or a fair hearing before seeking judicial review of that decision pursuant to § 41-22-20. After its § 41-22-ll(a) petition was denied, Auburn Medical Center sought judicial review of the denial pursuant to § 41-22-20 without requesting a fair hearing, which was a prerequisite to seeking judicial review of the denial of a § 41-22-ll(a) petition before the adoption of Act No. 98-341. The circuit court dismissed Auburn Medical Center’s action on the ground' that it had failed to exhaust its administrative remedies by requesting a fair hearing, and Auburn Medical Center appealed. In a decision delivered in 2000, i.e., Auburn Medical Center, Inc. v. State Health Planning & Development Agency, 814 So.2d 258, 260 (Ala.Civ.App.2000) (“Auburn I”), this court held that Act No. 98-341 should be applied retroactively to Auburn Medical Center’s § 41-22-ll(a) petition and reversed the judgment of the circuit court; however, in a decision delivered in 2001, Ex parte East Alabama Health Care Authority, 814 So.2d 260, 263 (Ala.2001), the supreme court held that Act No. 98-341 could not be applied retroactively to Auburn Medicál Center’s § 41-22-ll(a) petition, reversed this court’s decision in Auburn I, and remanded the cause to this court for further proceedings consistent with the supreme court’s opinion. On remand, Auburn Medical Center argued that the denial of its § 41-22-ll(a) petition was by operation of law due to the failure of the CONRB to issue an express ruling within the 45-day period and that, therefore, Auburn Medical Center was entitled to judicial review of that denial by the circuit court pursuant to the provision of § 41-22-ll(b) stating that a denial of a § 41-22-ll(a) petition by operation of law was subject to judicial review. In the alternative, Auburn Medical Center argued that it was entitled to judicial review of the denial of its § 41-22-ll(a) petition by the circuit court based on § 41-22-10. In Auburn II, this court rejected both arguments, stating:

“Whether [the denial of Auburn Medical Center’s § 41r22-ll(a) petition] was an affirmative act or was merely a denial by operation of law is inconsequential. Auburn Medical Center did not request review by a fair-hearing officer, the final review process for SHPDA. Because the fair-hearing officer, the individual responsible for the final review process, never ruled on the petition, that provision of § 41 — 22—11(b) providing for judicial review has not been implicated, and Auburn Medical Center is not entitled to judicial review of the CONRB’s denial of its petition.
“Auburn Medical Center argues alternatively that § 41-22-10 provides judicial review of the CONRB’s decision. We disagree. Auburn Medical Center sought declaratory relief with SHPDA pursuant to § 41-22-11, rather than seeking declaratory relief in the circuit court pursuant to § 41-22-10. Auburn Medical Center is not entitled to seek relief pursuant § 11-22-10 once it decided to proceed under § 11-22-11. Alabama Cellular Serv., Inc. v. Size-more, 565 So.2d 199 (Ala.1990); State Personnel Bd. v. Wallace, 659 So.2d 683 (Ala.Civ.App.1995); and Alabama State Personnel Bd. v. Brashears, 575 So.2d 1149 (Ala.Civ.App.1991).”

814 So.2d at 265 (emphasis added).

Thus, this court held in Auburn II that a petitioner who was completely foreclosed from seeking judicial review pursuant to §§ 41-22-ll(b) and 41-22-20 by its failure to request a fair hearing was nonetheless precluded from seeking relief from the circuit court pursuant to § 41-22-10 because of its previous election to seek relief from the administrative agency pursuant to § 41-22-ll(a). If a petitioner who is completely foreclosed from seeking judicial review, pursuant to §§ 41-22-ll(b) and 41-22-20, of the denial of his, her, or its § 41-22-ll(a) petition is nonetheless precluded from seeking relief from the circuit court pursuant to § 41-22-10, then, a for-tiori, a petitioner who has elected to seek relief from the administrative agency pursuant to § 41-22-ll(a) is not entitled to seek relief from the circuit court pursuant to § 41-22-10 merely because the denial of his, her, or its § 41-22-ll(a) petition was by operation of law rather than by the administrative agency’s issuing an express ruling within the 45-day period.

Moreover, although this court in Auburn II did not address the specific issue whether a denial by operation of law of a § 41-22-ll(a) petition entitles a petitioner to seek a new declaratory ruling by the circuit court pursuant to § 41-22-10, the holding in that case is nonetheless disposi-tive regarding the issue whether the denial by operation of law of RCHP-Florence’s § 41-22-ll(a) petition entitles it to seek a new adjudication by the circuit court pursuant to § 41-22-10 because RCHP-Florence’s situation is analogous to Auburn Medical Center’s situation in Auburn II. Auburn Medical Center was completely foreclosed from seeking judicial review pursuant to §§ 41-22-11(b) and 41-22-20 because it did not request a fair hearing; RCHP-Florence is completely foreclosed from seeking judicial review pursuant to §§ 41 — 22—11(b) and 41-22-20 because it did not timely file its notice of appeal with SHPDA. Although the procedural deficiencies that foreclose judicial review in the two situations are different, those differences are not material to a determination whether RCHP-Florence is entitled to seek a new adjudication by the circuit court pursuant to § 41-22-10. In Auburn II, this court held that a petitioner who was completely foreclosed from seeking judicial review pursuant to §§ 41-22-ll(b) and 41-22-20 by a procedural deficiency was nonetheless precluded from seeking a new adjudication by the circuit court pursuant to § 41-22-10 because it had previously elected to seek a declaratory ruling by the administrative agency pursuant to § 41-22-ll(a). In the present case, RCHP-Florence is also completely foreclosed from seeking judicial review pursuant to §§ 41-22-ll(b) and 41-22-20 by a procedural deficiency, and it also has made a previous election to seek a declaratory ruling by the administrative agency pursuant to § 41-22-ll(a). Therefore, Auburn II constitutes binding precedent requiring us to conclude that RCHP-Florence’s previous election to seek a declaratory ruling by the CONRB pursuant to § 41-22-ll(a) precludes it from seeking a new adjudication of the same issue by the circuit court pursuant to § 41-22-10.

Furthermore, if a petitioner whose § 41-22-11 (a) petition has been denied is not allowed to circumvent the judicial-review process, in which the circuit court must apply the standard of review specified in § 41-22-20(k), by seeking a new declaratory ruling regarding the same issue by the circuit court pursuant to § 41-22-10, he, she, or it should not be allowed to do so by seeking a new adjudication of the same issue by the circuit court pursuant to the Declaratory Judgment Act or § 22-21-276(a). Cf. Alabama Pub. Serv. Comm’n v. AAA Motor Lines, Inc., 272 Ala. 362, 369, 131 So.2d 172, 177 (1961). In AAA Motor Lines, the supreme court acknowledged the rule that “an action for declaratory judgment cannot be made a substitute for appeal” and stated that “[i]f the rule were otherwise, a declaratory proceeding would lie to determine whether a prior declaratory proceeding was erroneous, and there would be no end to that kind of litigation.” Id. Accordingly, we conclude that neither RCHP-Florence’s second claim nor its third claim invoked the jurisdiction of the circuit court.

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). Because none of RCHP-Florence’s claims invoked the jurisdiction of the circuit court, RCHP-Florence cannot establish that it is entitled to the writ of mandamus it seeks. Therefore, we deny the petition.

APPLICATION GRANTED; OPINION OF APRIL 12, 2013, WITHDRAWN; OPINION SUBSTITUTED; PETITION DENIED.

THOMPSON, P.J., and MOORE and DONALDSON, JJ„ concur.

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

      . In pertinent part, § 41-22-11(a), Ala.Code 1975, provides that, "[o]n the petition of any person substantially affected by a rule, an agency may issue a declaratory ruling ... with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it.”

      . With respect to petitions filed pursuant to § 41-22-11(a), § 41-22-11(b) provides, in pertinent part, that "[fjailure of the agency to issue a declaratory ruling on the merits within 45 days of the request for such ruling shall constitute a denial of the request as well as a denial on the merits of the request and shall be subject to judicial review.”

      . Section 41-22-20(b), Ala.Code 1975, provides that a proceeding for review of a final decision of an administrative agency in a contested case may be instituted by filing a notice of appeal with the pertinent administrative agency and by filing a petition seeking judicial review of the administrative agency’s decision in the appropriate circuit court.

      . In pertinent part, § 41-22-10 provides that ‘‘[t]he validity of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute.”

      . In pertinent part, § 6-6-222, Ala.Code 1975, provides that "[c]ourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”

      . In pertinent part, § 22-21-276(a) provides that "[ijnjunctive relief against violations of this article or any reasonable rules and regulations of the SHPDA may be obtained from the Circuit Court of Montgomery County, Alabama, at the instance of SHPDA, any holder of a certificate of need that is adversely affected in the exercise of privileges thereunder by such violation or any member of the public directly and adversely affected by such violation.”

      . In pertinent part, § 41-22-20(h), Ala.Code 1975, provides that “[t]he petition for review [of the final decision of an administrative agency by the appropriate circuit court filed pursuant to § 41-22-20(b), Ala.Code 1975,] shall name the agency as respondent....” In pertinent part, § 41-22-10 provides that "[t]he agency shall be made a party to [an] action [brought pursuant to § 41-22-10].”

      . Cf. Ala. Admin. Code (SHPDA), r. 410-1-3-.05 (excluding final Saturdays from calculations of periods established by SHPDA rules).

      . Although the record indicates that the CONRB has informally honored extensions by agreement of the 45-day period, RCHP-Florence has not cited a rule formally promulgated by SHPDA that authorizes such extensions.

      . Although the record indicates that the CONRB has informally honored extensions by agreement of the 45-day period, SHPDA has not cited a rule it has formally promulgated that authorizes extensions by agreement of the 45-day period. SHPDA’s rule regarding § 41-22-11 does not contain such an authorization. That rule states:
      “(1) The CON Review Board may issue declaratory rulings to any person substantially affected by a rule, with respect to the validity of the rule, or with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by the state agency, or with respect to the meaning and scope of any order of the state agency. Such rulings shall be issued provided:
      "(a) the petitioner makes his request in writing no later than fourteen (14) days prior to the regularly scheduled meeting of the CON Review Board; and
      "(b) the petitioner shows that he is substantially affected by the rule in question; and
      "(c) sufficient facts are supplied in the request to permit the Certificate of Need Review Board to make a valid determination; and
      “(d) the request arises from an actual question or controversy.
      "(2) Such rulings will be made in accordance with the Alabama Administrative Procedure Act, Code of Ala.1975, § 41-22-11.”
      Ala. Admin. Code (SHPDA), r. 410-1-9-.01.

      . See supra note 7 and accompanying text.

      . Section 41-22-20(i) provides, in part:
      “If, before the date set for hearing a petition for judicial review of agency action in a contested case, it is shown to the satisfaction of the court that additional evidence is material and that there were good reasons for failure to present it in the contested case proceeding before the agency, the court may remand to the agency and order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modification, new findings, or decision with the reviewing court and mail copies- of the new findings, or decision to all parties.”


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Ex parte McCRORY & WILLIAMS, INC. (In re McCrory & Williams, Inc. v. Leon Allen).
    2121099.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2014.
    Rehearing Denied March 7, 2014.
    Certiorari Denied May 16, 2014 Alabama Supreme Court 1130639.

      Gregory B. McAtee, Mobile; and Gregory C. Buffalow of Satterwhite, Buffalow & Tyler, LLC, Mobile, for petitioner.
    Robert W. Waller, Jr., of Wilkins, Bank-ester, Biles & Wynne, P.A., Bay Minette, for respondent.
   THOMAS, Judge.

In July 2002, McCrory & Williams, Inc., filed a complaint in the Baldwin Circuit Court seeking a judgment awarding it $12,713.08 due on a verified account plus interest, from Leon Allen. The sheriffs return-of-service form indicates that the complaint was served by leaving it with Bennie Richardson at Allen’s place of business in Daphne on September 18, 2002. Allen never answered the complaint or otherwise defended the action, and the trial court entered a default judgment awarding McCrory & Williams the amount of $14,044.28, plus court costs, on November 1, 2002 (“the 2002 default judgment”).

In July 2009, James G. Curenton filed a notice of appearance in the action, in which he stated that he was representing Allen; however, Curenton filed no pleadings or motions on behalf of Allen. On February 28, 2011, acting pro se, Allen filed a claim of exemption from garnishment. Because collection efforts had been unsuccessful and because the 2002 default judgment was nearly 10 years old, McCrory & Williams revived the judgment in September 2012. See Ala.Code 1975, § 6-9-192 (“No execution shall issue on a judgment of the district or circuit court on which an execution has not been sued out within 10 years of its entry until the same has been revived by appropriate motion or action under the Alabama Rules of Civil Procedure.”).

On July 23, 2013, Allen filed a motion for relief from the 2002 default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P.; in the motion, Allen asserted that the summons and complaint had been left with Richardson at Allen’s place of business and that Allen had, therefore, not been properly served under Rule 4(c)(1), Ala. R. Civ. P. Rule 4(c)(1) requires that an individual be personally served at his or her dwelling place or that the summons and complaint be left at the dwelling place with a person of suitable age and discretion at that location; Rule 4(c)(1) also authorizes service on an individual by delivery of the summons and complaint to “an agent authorized by appointment or by law to receive service of process.” Allen testified in his affidavit, which he attached to his motion, that the address to which the summons and complaint were delivered was not his “dwelling place” and that Richardson was not “an agent authorized by appointment or by law to receive service of process.” Thus, Allen contended that he had not been properly served, that the 2002 default judgment was therefore void for lack or personal jurisdiction, and that the 2002 default judgment should be set aside. See Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995) (“Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.”).

MeCrory & Williams responded to Allen’s motion. In its response, MeCrory & Williams argued that Allen had not specifically denied that he had received the summons and complaint. Further, MeCrory & Williams argued that Allen had failed to allege a meritorious defense in support of his motion and that Allen’s Rule 60(b) motion had not been timely filed. The response also contained allegations that Allen’s former counsel had engaged in negotiations regarding the debt between March 2003 and April 2009 without disputing the validity of the debt and that further representations had been made by Allen’s former counsel regarding settling the debt in 2010, 2011, and 2012. No affidavit accompanied the response, and nothing in the response attempted to establish that Richardson was an agent authorized to receive service of process on Allen’s behalf.

Allen replied to MeCrory & Williams’s response by pointing out that a party seeking relief from a default judgment in a Rule 60(b)(4) motion, which seeks relief from a judgment on the basis that the judgment is void, is not required to establish a meritorious defense. See Ex parte Wilson Lumber Co., 410 So.2d 407, 409 (Ala.1982) (stating that “it was unnecessary for [the movant] to have alleged a meritorious defense in his motion to vacate the default judgment for want of proper service”); Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978) (stating that if a judgment is void, a Rule 60(b)(4) mov-ant is not required to make a showing of a meritorious defense). He further pointed out that a Rule 60(b)(4) motion is not required to be filed within a reasonable time or within three years of the entry of the judgment being attacked and may, in fact, be brought at any time. Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala.2003) (determining that a Rule 60(b)(4) motion was not subject to the reasonable-time requirement of Rule 60(b) and could be brought at any time); see also Hooie v. Barksdale, 93 So.3d 942, 944 (Ala.Civ.App.2012) (“A motion brought under Rule 60(b)(4) is not subject to the reasonable-time requirement of Rule 60(b) and may be brought at any time.”). Finally, Allen noted that none of the arguments or allegations raised in McCrory & Williams’s response refuted his assertion that Richardson was not an agent authorized to receive service of process on Allen’s behalf.

On August 27, 2013, the trial court entered an order granting Allen’s Rule 60(b) motion, declaring the 2002 default judgment void for lack of proper service, and setting aside the 2002 default judgment. McCrory & Williams filed a motion requesting that the trial court reconsider its order granting Allen’s Rule 60(b) motion on September 6, 2013; the trial court denied that motion on September 12, 2013. McCrory & Williams then timely filed this petition for the writ of mandamus on October 4, 2013. It seeks a writ of mandamus directing the trial court to set aside its order setting aside the 2002 default judgment.

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). A petition for the writ of mandamus is a proper method for attacking the grant of a Rule 60(b) motion. See Ex parte Baker, 459 So.2d 873 (Ala.1984).”

Ex parte A & B Transp., Inc., 8 So.3d 924, 931 (Ala.2007).

McCrory & Williams first argues in its petition that the trial court could not have determined that the 2002 default judgment was void for insufficiency of service of process because Curenton’s July 2009 notice of appearance in the action and Allen’s filing of his pro se claim for exemption from garnishment in 2011 each amounted to a general appearance by Allen and, thus, both filings waived Allen’s argument regarding insufficiency of service of process. See 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)) (explaining that a general appearance waives objections regarding personal jurisdiction and insufficiency of service of process and that “‘[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’”); Simmons v. Simmons, 99 So.3d 316, 320 (Ala.Civ.App.2011) (holding that “[an attorney’s] filing a notice of appearance on behalf of [his or her client] constitute^] a waiver of service of process by [the client]”); Klaeser v. Milton, 47 So.3d 817, 821 (Ala.Civ.App.2010) (noting that “a defendant waives the defense of improper service of process if that defendant does not raise the issue in his or her first appearance following the entry of a default judgment”); see also Faucette v. Dickerson, 103 N.C.App. 620, 624, 406 S.E.2d 602, 605 (1991) (determining that a motion to claim exempt property was a general appearance). Although this argument has significant merit, we must reject it. Allen contends that McCrory & Williams did not raise either waiver argument to the trial court. McCrory & Williams insists that it did raise the waiver arguments in its September 6, 2013, motion seeking reconsideration of the trial court’s order granting Allen’s Rule 60(b)(4) motion.

A review of the September 6, 2013, motion indicates that McCrory & Williams mentioned certain facts upon which its waiver arguments are based. For example, the September 6, 2013, motion states that Curenton filed a notice of appearance in 2009 and that the notice of appearance was “not a limited notice of appearance but a general appearance on behalf of’ Allen. The motion also states that Allen filed “his own claim of exemptions.” According to the motion, Allen “unequivocally was in front of this court in July of 2009 with the appearance filed by Mr. Curenton on Mr. Allen’s behalf.” However, other than these isolated factual statements, McCrory & Williams presented no legal argument in the September 6, 2013, motion resembling an argument that' Allen had waived his objection to the insufficiency of service of process. The only legal argument asserted in McCrory & Williams’s motion was that Allen’s Rule 60(b)(4) motion had not been filed within a reasonable time. We have stated before that a “cryptic statement” by a party’s attorney that fails to apprise the trial court of the specific legal argument being made and the authority for such argument is not sufficient to preserve that legal argument for appellate review. Simmons, 99 So.3d at 323-24. We conclude that McCrory & Williams failed to raise before the trial court the waiver arguments it now makes; thus, we may not consider those arguments on our review of this mandamus petition. Ex parte Green, 108 So.3d 1010, 1013 (Ala.2012) (rejecting an argument on mandamus review that had not been raised before the trial court).

McCrory & Williams also argues “alternatively” that Allen’s Rule 60(b) motion was time-barred. However, this argument is not an alternative argument. Instead, McCrory & Williams asserts that because, it contends, Allen waived his insufficiency-of-service-of-process argument (a conclusion that we cannot reach, as explained above), the trial court could not have determined that the 2002 default judgment was void, and, therefore, Allen’s motion could have been considered only to be an independent action to set aside the 2002 default judgment, which was required to have been brought within three years of the judgment. See Rule 60(b). This argument is misguided.

Allen’s motion clearly reqhests that the trial court set aside the 2002 default judgment on the ground that service of process was insufficient. The motion is a Rule 60(b)(4) motion and only a Rule 60(b)(4) motion. If, as McCrory & Williams contends, the 2002 default judgment was not void, then the trial court would have been required to deny the motion, not to treat the motion as an independent action under Rule 60(b). McCro-ry & Williams has mistakenly relied on the legal principle that a Rule 60(b)(3) motion seeking relief from a judgment on the basis of fraud, which must be filed within four months of the entry of the judgment, and an independent action under Rule 60(b) seeking relief from a judgment on the basis of fraud on the court, which must be filed within three years of the entry of the judgment, are generally considered interchangeable, depending on which one is procedurally appropriate. Taylor v. Newman, 93 So.3d 108, 114 n. 4 (Ala.Civ.App.2011) (citing Warren v. Riggins, 484 So.2d 412, 414 (Ala.1986), and Committee Comments on 1973 Adoption of Rule 60). However, a Rule 60(b)(4) motion, which may be brought at any time, need not be brought as an independent action. Thus, this argument does not entitle McCrory & Williams to the relief it seeks.

Finally, McCrory & Williams argues that Allen did not establish by clear and convincing evidence that service of process was not properly accomplished. McCrory & Williams contends that the sheriffs return-of-service form is considered prima facie evidence of proper personal service and that the uncorroborated statement of a defendant will not invalidate a signed return-of-service form. See Mitchell Bros. Contractors, Inc. v. Benson, 450 So.2d 138, 139 (Ala.Civ.App.1984). Although those general principles are correctly stated, they have limited application in the present case because it is uncontra-dicted that Allen did not sign the return; the return was signed by Richardson, who Allen has stated was not authorized to receive service of process on his behalf.

McCrory & Williams relies, in significant part, on the decision of this court in Seymore v. Taylor, 716 So.2d 1216, 1218 (Ala.Civ.App.1997), in which this court held that, based on the presumption created by a signed sheriffs return-of-service form, the burden was on the defendant to show, by clear and convincing evidence, that the person who received the summons and complaint was not authorized to receive service on behalf of that defendant. Seymore, 716 So.2d at 1218. However, Seymore was overruled by Johnson v. Hall, 10 So.3d 1031 (Ala.Civ.App.2008), in which this court determined that the presumption raised by signed certifíed-mail receipts did not place the burden on the defendants to prove that the proper parties were not served; instead, this court held, the certified-mail receipts established only that the summonses and complaints were properly mailed and delivered to the addresses to which the mail was sent. Johnson, 10 So.3d at 1037. To reach this conclusion, we. relied on our supreme court’s statement in Northbrook Indemnity Co. v. Westgate, Ltd., 769 So.2d 890, 893 n. 4 (Ala.2000), that a signed certifíed-mail receipt raises a presumption that the summons and complaint were properly mailed pursuant to Rule 4.2(b)(1), Ala. R. Civ. P., and that the person who signed the receipt received the summons and complaint but does not raise a presumption that the proper defendant was properly served under Rule 4(c), Ala. R. Civ. P. We stated in Johnson: “Standing alone, service of process at the proper address did not give rise to a presumption that the proper person was served.” Johnson, 10 So.3d at 1036. Thus, McCrory & Williams’s reliance on Seymore is misplaced, and it was not incumbent upon Allen to prove by clear and convincing evidence that he was not properly served.

As was the case in Johnson, the materials in the present case (which consist of the exhibits to the petition and the answer provided to us) do not establish that Allen was properly served either personally or by leaving the summons and complaint with a person of suitable age and discretion at Allen’s “dwelling place” or by delivering the summons and complaint to a person authorized to receive service of process for Allen. Allen’s affidavit, like the affidavit in Johnson, established that Richardson was not authorized to receive service for Allen. McCrory & Williams presented no contrary evidence indicating that Richardson was so authorized. Thus, based on Johnson, the trial court had before it uncontradicted evidence indicating that the 2002 default judgment was void because Allen had not been properly served. Johnson, 10 So.3d at 1033-34 (quoting Kingvision, 886 So.2d at 52, quoting in turn other cases) (“ ‘ “ ‘ “Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.” ’ ” ’ ”). The trial court properly granted Allen’s Rule 60(b)(4) motion and set aside the 2002 default judgment because that judgment was, based on the evidence before the trial court and the arguments presented to it, void.

We must therefore conclude that McCrory & Williams is not entitled to the relief it seeks. McCrory & Williams has failed to establish a clear, legal right to a writ of mandamus directing the trial court to set aside its order setting aside the 2002 default judgment. This petition is therefore denied.

Allen’s motion to strike the petition is also denied. McCrory & Williams’s motion for leave to submit a reply to the answer to the petition is granted.

PETITION DENIED.

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

PITTMAN, J., recuses himself.

      . Rule 4(c)(1) reads, in its entirety, as follows:
      "Service of process, except service by publication as provided in Rule 4.3, [Ala. R. Civ. P.,] shall be made as follows:
      "(1) Individual. Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process.”

      . We note that McCrory & Williams’s September 6, 2013, motion was not a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., because the order granting the Rule 60(b)(4) motion was an interlocutory order and not a final judgment capable of supporting an appeal. See Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1049 n. 2 (Ala.1996) (stating that, typically, an order granting a Rule 60(b) motion is an interlocutory order); see also 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)) (explaining that a "‘Rule 59 motion may be made only in reference to a final judgment’ ”).

      . The petition was filed within 42 days of the entry of the August 27, 2013, order granting Allen’s Rule 60(b)(4) motion. See Rule 21(a)(3), Ala. R.App. P.


author: DONALDSON, Judge.

text:
    F.L. v. K.P.
    2130116.
    Court of Civil Appeals of Alabama.
    March 14, 2014.

      Chad A. Hopper of Buttram, Hawkins & Hopper, LLC, Centre, for appellant.
    Summer L. McWhorter, Centre, for ap-pellee.
   DONALDSON, Judge.

F.L. (“the mother”) appeals the judgment of the Cherokee Juvenile Court (“the trial court”) placing her son, B.A.L. (“the child”), into the joint custody of the mother and K.P. (“the maternal grandmother”), with “primary” custody being vested in the maternal grandmother.

Facts and Procedural History

The maternal grandmother filed an emergency petition for custody in the trial court on August 15, 2013. She alleged numerous grounds in support of a finding of dependency; specifically, she alleged that the mother drops the child off with her or the child’s maternal great-grandparents “for stretches of time,” that “no one is sure where [the mother] now lives,” and that “[t]he [m]other’s husband has been abusive towards the minor child.” The maternal grandmother requested legal custody of the child. On the same day, the trial court granted “temporary legal custody” of the child to the maternal grandmother and entered orders restraining the parties from conducting certain behaviors pending a final hearing and the entry of a final judgment in the case. The trial court further set the matter for a hearing on August 28, 2013. Following the August 28, 2013, hearing, the trial court continued “temporary legal custody” with the maternal grandmother, and awarded scheduled visitation to the mother.

The trial court held a “final hearing” on September 25, 2013. The trial court issued a “temporary order” on October 10, 2013, vesting the parties with joint custody of the child, “with the primary care, custody and control being vested with [the maternal grandmother].” The trial court’s order makes extensive provisions for visitation for the mother. However, the order neither contains a finding of dependency nor sets the matter for any further hearings.

The mother filed a motion to alter, amend, or vacate on October 11, 2013, arguing that the order was not consistent with the evidence and taking issue with the “temporary” nature of the order without scheduling any further hearings. The maternal grandmother filed a motion to alter, amend, or vacate on October 17, 2013, arguing that the order should be made final but also arguing for changes to the mother’s visitation schedule. On October 24, 2013, the trial court issued a “final order” that clarified the mother’s visitation schedule, but that order did not include any finding regarding the dependency of the child.

The mother filed her notice of appeal, and motion to proceed in forma pauperis, on November 1, 2013; the trial court granted the motion.

Standard of Review

“ ‘Our standard of review of dependency determinations is well settled.
“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12—15—65(f) [, Ala.Code 1975][3]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”
‘J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004).
“ [3] The requirement that a finding of dependency must be supported by clear and convincing evidence before the dis-positional phase of a dependency proceeding is now codified at § 12-15-311(a), Ala.Code 1975.”

J.L. v. W.E., 64 So.3d 631, 634 (Ala.Civ.App.2010) (quoting L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala.Civ.App.2008)).

“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25-5-81(c) ] establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish ], 47 So.3d [749,] 761 [(Ala.Civ.App.2006)].
“... ‘[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ § 25-5-81(c).
“In reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court’s findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing.”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). See also § 6-ll-20(b), Ala.Code 1975 (defining “clear and convincing evidence” outside the workers’ compensation context similarly to § 25—5—81(c), Ala.Code 1975); and § 12-15-310(b), Ala.Code 1975 (“If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”).

Discussion

The mother presents one issue for review: whether “[t]he trial court erred in granting custody of the minor child to a nonparent without a finding of unfitness of the mother.”

The mother argues, based on C.P. v. M.K., 618 So.2d 126 (Ala.Civ.App.1992), that a finding of unfitness is required to entrust custody of a child with a nonpar-ent. However, that decision was rendered based on the provisions of former § 12-15-1(10), Ala.Code 1975, regarding the applicable standard for finding a child to be dependent rather than the current and controlling provisions of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975 (“the AJJA”), specifically, § 12-15-102(8) and § 12-15-310(b), which have been in effect since January 1, 2009.

The mother cites Ex parte Terry, 494 So.2d 628 (Ala.1986), Street v. Street, 731 So.2d 1224 (Ala.Civ.App.1999), and Matthews v. Matthews, 659 So.2d 621 (Ala.Civ.App.1994), for the proposition that a trial court commits error by awarding custody of a child to a nonparent in the absence of a finding of parental unfitness. However, each of those cases arises from a divorce proceeding, none of them deal with the applicable standard for a finding of dependency, and all were decided prior to the effective date of the AJJA. Despite the fact that both parties argue this appeal based on whether the mother was “unfit,” that is not the pertinent issue under the applicable standard promulgated in the AJJA. Moreover, the mother’s reliance on the statement in Street that “grandparents do not stand as equals with parents in a custody dispute,” 731 So.2d at 1226, further confirms that she has misapprehended the very nature of a dependency action.

On appeal, neither party addresses the issue whether the child was dependent pursuant to the AJJA. Further, none of the orders entered by the trial court indicate the basis on which the custody orders were predicated. The trial court did not make a finding of dependency, despite the fact that the case originated with the filing of an emergency petition for custody in which the dependency of the child was alleged, but, nevertheless, the trial court awarded “temporary legal custody” and later “joint custody” to the maternal grandmother.

“ ‘[T]his court has held that when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding of dependency is implicit in the trial court’s judgment.’ J.P. v. S.S., 989 So.2d 591, 598 (Ala.Civ.App.2008).”

M.W.H. v. R.W., 100 So.3d 603, 607 (Ala.Civ.App.2012). However, the trial court’s orders neither indicate what standard it applied in awarding custody to the maternal grandmother nor make the findings required by Rule 25(A), Ala. R. Juv. P., which provides, in pertinent part:

“If the allegations of the juvenile petition are denied, the juvenile court shall direct that testimony of witnesses be taken. A dependency hearing shall be conducted consistent with legal and due-process requirements and shall proceed generally in a manner similar to the trial of a civil action before the court sitting without a jury.... At the close of the hearing, the juvenile court shall make one of the following findings in writing:
“(1) That the facts alleged in the juvenile petition are true and the child is dependent, in need of supervision, or delinquent; or
“(2) That the facts alleged in the petition are not proved or that the child is not in need of care or rehabilitation or supervision, in which event the juvenile petition shall be dismissed.”

The trial court’s “final order” does not make the required finding as to whether the child was dependent as of the time of either the initial hearing or the final hearing, and, moreover, the order fails to identify the specific grounds to support a finding of dependency pursuant to § 12-15-102(8), Ala.Code 1975.'

Because the trial court’s orders are not sufficient to infer that a determination of dependency has been made, we remand this cause to the trial court for it to make, based on the existing record, the written findings required by Rule 25(A), Ala. R. Juv. P., as to whether the child is dependent and, if so, identifying the grounds supporting the findings of dependency. If the trial court finds that the child is not dependent, the petition should be dismissed. The trial 'court shall make due return to this court within 42 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

THOMAS and MOORE, JJ., concur in the result, without writings.


author: MOORE, Judge.

text:
    Sheila W. AUSTIN, as administrator of the estate of Rose Williams McMillan, deceased v. PROVIDENCE HOSPITAL and SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.
    2130074.
    Court of Civil Appeals of Alabama.
    March 21, 2014.
    Rehearing Denied May 23, 2014.

      Braxton L. Kittrell, Mobile, for appellant.
    Brian W. Miller of Wright, Green, P.C., Mobile, for appellees.
   MOORE, Judge.

Sheila W. Austin, as administrator of the estate of Rose Williams McMillan, deceased, appeals from a summary judgment entered by the Mobile Circuit Court (“the trial court”) in favor of Providence Hospital (“Providence”) and Sedgwick Claims Management Services, Inc. (“Sedgwick”), on Austin’s claim alleging breach of contract. We affirm.

On January 16, 2013, Austin filed a complaint in the trial court against Providence, Sedgwick, and a number of fictitiously named defendants, asserting breach of contract. Providence and Sedg-wick filed an answer and an amended answer to Austin’s complaint, asserting a number of affirmative defenses. Providence and Sedgwick subsequently filed a joint motion for a summary judgment. Austin responded to that motion and filed her own summary-judgment motion, to which Providence and Sedgwick responded by amending their motion for a summary judgment.

The materials submitted to the trial court by the parties reveals the following undisputed facts. Rose Williams McMillan (“the employee”) sustained an injury arising out of and in the course of her employment with Providence for which she was entitled to future medical benefits pursuant to the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala. Code 1975. Providence is a self-insured employer whose workers’ compensation claims are administered by Sedgwick. See Rule 480-5-2-.02(7), Ala. Admin. Code (Department of Labor). On October 27, 2011, the employee agreed to settle her claim for future medical benefits for $75,000. Because the employee was eligible for Medicare, counsel representing Providence and Sedgwick submitted the settlement and a Workers’ Compensation Medicare Set-aside Arrangement proposal to the Department of Health and Human Services, Centers for Medicare and Medicaid Services (“CMS”). See “Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide,” COBR-Q1-2014-V.2.1 (Feb. 3, 2014). On November 29, 2012, CMS approved the proposal, requiring $37,951 of the $75,000 settlement amount be reserved for future medical care and drug expenses related to the employee’s work injuries. The employee died on December 9, 2012, and, based upon her death, counsel for Providence and Sedgwick indicated that the settlement agreement would not be honored. As a result, Austin initiated the underlying breach-of-contraet action.

On April 17, 2013, the trial court entered a summary judgment in favor of Providence and Sedgwick. Austin filed a notice of appeal to the Alabama Supreme Court on May 20, 2013; that court transferred the appeal to this court based on lack of appellate jurisdiction.

In its judgment, the trial court indicated that it was entering a summary judgment in favor of Providence and Sedgwick for two reasons. First, the trial court determined that the breach-of-contract action was barred by §§ 25-5-52 and 25-5-53, Ala.Code 1975, which are collectively known as and sometimes hereinafter referred to as “the exclusivity provisions” of the Act. Section 25-5-52 provides, in pertinent part:

“Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative ... of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

(Emphasis added.) Section 25-5-53 provides, in pertinent part:

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative ... at common law, by statute, or otherwise on account of injury, loss of services, or death.”

(Emphasis added.) Based on the exclusivity provisions, the trial court determined that Austin could maintain the breach-of-contract action only if such an action was specifically authorized by the terms of the Act. The trial court noted that § 25-5-57(a)(5), Ala.Code 1975, governs the liability of an employer for unpaid disability benefits due under a settlement agreement but that no part of the Act imposes liability upon an employer for unpaid medical benefits due under a settlement agreement. Hence, the trial court determined that Austin did not have any claim to the proceeds of the settlement agreement.

Second, the trial court concluded that the settlement agreement was not valid because it had not been approved by a circuit court and because it could not be made valid due to the death of the employee. Section 25-5-56, Ala.Code 1975, provides, in pertinent part:

“Nó settlement for an amount less than the amounts or benefits stipulated in this article shall be valid for any purpose, unless a judge of the court where the claim for compensation under this chapter is entitled to be made, or upon the written consent of the parties, a judge of the court determines that it is for the best interest of the employee or the employee’s dependent to accept a lesser sum and approves the settlement.”

The trial court reasoned that, because medical benefits under the Act are payable without any time limitation, any settlement of future medical benefits payable in a single lump sum would reduce the benefits available to the employee, thus requiring court approval to be valid. The materials submitted to the trial court showed that the parties had contemplated obtaining court approval of the settlement but that the employee had died before a hearing could take place. The trial court maintained that it could not hold the “best-interests hearing” required by § 25-5-56 without the presence of the employee.

On appeal, Austin argues that parties to civil litigation may agree to a settlement that is as binding as any other contract, see King v. Travelers Ins. Co., 513 So.2d 1023, 1026 (Ala.1987), and that §§ 6-5-462 and 6-5-465, Ala.Code 1975, allow for valid and enforceable contracts to survive the death of the parties. Austin maintains that the settlement agreement became unconditional once CMS approved the set-aside arrangement it in November 2012. Austin also contends that a circuit court did not have to approve the settlement in order for it to be valid because, she says, the amount of money the employee would receive in the settlement exceeded the monetary value of her future medical care, as evidenced by the $37,951 figure established by CMS, so she was actually receiving a benefit beyond that to which she was entitled under the Act. Austin lastly maintains that, if necessary, the trial court could hold a “best-interests hearing” to approve the settlement despite the death of the employee. See Nationwide Mut. Ins. Co. v. Wood, 121 So.3d 982 (Ala.2013) (holding that death of minor before agreed-upon pro ami hearing did not render settlement agreement unenforceable because evidence to establish whether settlement served minor’s best interests remained available).

Assuming for the sake of argument that Austin is correct as to all of those points, it remains that Austin has failed to address the trial court’s primary ground for entering the summary judgment. In her brief to this court, Austin does not argue that the trial court erred in concluding that the exclusivity provisions render §§ 6-5-462 and 6-5-465 inapplicable to actions alleging breach of a workers’ compensation settlement agreement. Furthermore, Austin does not attempt to explain how her claim would fall outside the scope of the exclusivity provisions. See generally Smith v. West Point-Pepperell, Inc., 431 So.2d 1268, 1269 (Ala.Civ.App.1983) (concluding that the exclusivity provisions of the Act precluded application of § 6-5-462 regarding survivorship of a deceased employee’s claim).

When a trial court enters conclusions of law stating alternative legal grounds for its judgment, the failure of an appellant to show error as to each ground in his or her opening brief constitutes a waiver of any argument as to the omitted ground and results in an automatic affir-mance of the judgment. See Soutullo v. Mobile Cnty., 58 So.3d 733, 738 (Ala.2010). Because Austin has failed to make any argument that the trial court erred in applying the Act to preclude her from enforcing the settlement agreement, we affirm the trial court’s judgment in favor of Providence and Sedgwick.

AFFIRMED.

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

      . On the date this opinion was released, a copy of this reference guide could be found at http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/W orkers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/February-03-2014WCMSA-Reference-Guide-Version-2_l.pdf.