text:
    D.F.C. v. T.D.
    2120489.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2013.

      Jonathan L. Adams, Talladega, for appellant.
    William E. Hollingsworth IV, Talladega, for appellee.
   MOORE, Judge.

D.F.C. (“the father”) appeals from a judgment of the Talladega Juvenile Court (“the juvenile court”) modifying custody of the parties’ child to T.D. (“the mother”). We dismiss the appeal.

On August 15, 2012, the mother filed a petition alleging that the child was dependent and requesting that custody be awarded to her. On October 23, 2012, the father answered the petition. After a trial, the juvenile court entered a judgment on February 21, 2013, awarding custody of the child to the mother. On March 1, 2013, the juvenile court set the case for a hearing upon its own motion to alter, amend, or vacate. After a hearing, the juvenile court entered an order on March 8, 2013, stating that its motion had been denied by operation of law. On March 12, 2013, the juvenile court entered an order withdrawing the March 8, 2013, order and amended its February 21, 2013, judgment with regard to the father’s visitation. On March 13, 2013, the father filed his notice of appeal to this court. The mother subsequently filed a motion to dismiss the appeal as untimely.

“ A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a [timely filed] postjudgment motion.’ ” C.B. v. D.P.B., 80 So.3d 918, 920 (Ala.Civ. App.2011) (quoting H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1279 (Ala.Civ.App.2009)); see also Rule 4(a)(1), Ala. R.App. P. The juvenile court entered its final judgment on February 21, 2013; the father filed his notice of appeal on March 13, 2013, 20 days later. Therefore, to be deemed timely, the notice of appeal must have been filed within 14 days of the denial of a timely filed postjudgment motion.

Neither party filed a postjudgment motion. In its March 1, 2013, order, the juvenile court stated that it had set a hearing on its own motion to alter, amend, or vacate the February 21, 2013, judgment. We recognize that a juvenile court may, on its own motion, vacate or amend its judgment within 14 days of the entry of a final judgment, pursuant to Rule 59, Ala. R. Civ. P., see Ennis v. Kittle, 770 So.2d 1090, 1091 n. 1 (Ala.Civ.App.1999), and Rule 1(B), Ala. R. Juv. P. (reducing 30-day time limit in Rule 59 to 14 days). However, we have found no authority by which a juvenile court may file a postjudgment motion that tolls the time for an appeal while it considers vacating or amending its judgment. Rule 6(b), Ala. R. Civ. P., generally provides that a court may not extend the time for taking any action under Rule 59, except as expressly stated within that rule. Hence, we conclude that the juvenile court did not, by its unusual action, toll the time for taking an appeal.

There being no valid postjudgment motion pending before the juvenile court, the time to appeal in this case expired 14 days after February 21, 2013, or on March 7, 2013. The father did not file his notice of appeal until March 13, 2013. “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. Accordingly, we dismiss the father’s appeal.

APPEAL DISMISSED.

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

      . We also note that the juvenile court’s March 12, 2013, order is a nullity because it was entered outside of the 14-day time limit. See, e.g., Potter v. State Dep't of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    KRAZ, L.L.C., et al. v. Phillip HOLLIMAN et al.
    2120722.
    Court of Civil Appeals of Alabama.
    Dec. 6, 2013.
    John A. Daugherty and Cheryl A. Daugherty of Daugherty & Daugherty, Birmingham, for appellants.

      Christopher Lyle Mcllwain, Sr., of Hubbard, Mcllwain & Brakefield, P.C., Tuscaloosa, for appellees Phillip Holliman, Bonnie Holliman, West Alabama Insured Titles, L.L.C., and Memory Ashford.
    E. Britton Monroe, Patrick Patronas, and W. Robert Sickler of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellees Patty Snell & Associates, L.L.C., and Billy Cook.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. Kraz, L.L.C., Rubina K. Gillani, and Zahra A. Shroff (“the plaintiffs”) filed an action against Phillip Holliman, Bonnie Holliman, Patty Snell & Associates, L.L.C. (“Snell & Associates”), Billy Cook, West Alabama Insured Titles, L.L.C. (“West Alabama”), Memory Ashford, and certain fictitiously named defendants on May 20, 2011. In their complaint, the plaintiffs made the following pertinent allegations. Ashley Williamson owned a parcel of real property located in Tuscaloosa County (“the parcel”). Andalusia Enterprises, Inc. (“Andalusia”), held a judgment against Williamson. Phillip Holliman and Bonnie Holliman held a mortgage on the parcel. In July 2009, the Hollimans foreclosed on the mortgage and purchased the parcel at a foreclosure sale. On December 15, 2009, Gillani and Shroff entered into a contract with the Hollimans to purchase the parcel (“the sale contract”). Cook, who worked for Snell & Associates, was the real-estate salesperson. Snell & Associates acted as a limited consensual dual agent for the parties to the transaction. The contract provided that the Hol-limans would convey “good and merchantable title in fee simple” to Gillani and Shroff and that the parcel would be “free of all encumbrances.” Ashford, an agent of West Alabama, acted as the “settlement agent” for the transaction and conducted the sale of the parcel on December 23, 2009.

According to the allegations in the complaint, Gillani and Shroff asked multiple times at the closing whether the parcel was being conveyed with good title and were assured by all the defendants that it was being offered for sale with good title. Title insurance was issued for the parcel on December 29, 2009, that excepted from coverage any rights of redemption arising from the previous foreclosure sale of the parcel.

On May 10, 2010, Andalusia filed an action in the Tuscaloosa Circuit Court to redeem the parcel (“the redemption action”). On August 19, 2010, Shroff and Gillani conveyed the parcel to Kraz, L.L.C. On May 2, 2011, the trial court in the redemption action entered a summary judgment in favor of Andalusia, allowing it to redeem the parcel.

In the present action, the plaintiffs asserted claims of breach of contract against the Hollimans; breach of fiduciary duty against Cook, Snell & Associates, Ashford, and West Alabama; failure to disclose against Ashford and West Alabama; and fraud and negligence against all the defendants. They attached numerous documents to their complaint, including, among other things, a copy of the sale contract.

On June 24, 2011, West Alabama filed a motion to dismiss. Among other things, West Alabama argued that Gillani and Shroff had agreed to purchase the parcel in an “as is” condition and that it was “apparent” from the documents attached to the complaint that the parties anticipated that the Hollimans might not be able to convey merchantable title to Gillani and Shroff. West Alabama asserted that the title-insurance policy that it had issued expressly disclosed the right of redemption, and it argued that the deed for the parcel that was delivered by the Hollimans expressly made the conveyance of the parcel “as is, where is” and “subject to any existing right of redemption.” West Alabama argued that, under the doctrine of merger, the sale contract merged into the deed and the deed, which expressly stated that the parcel was conveyed “as is” and subject to any existing right of redemption, provided the sole terms of the parties’ agreement. The Hollimans filed a motion to dismiss in which they incorporated by reference the arguments contained in West Alabama’s motion to dismiss.

On July 11, 2011, Cook and Snell & Associates filed a motion to dismiss and a brief in support. They argued that any liability for the claims against them was defeated by a provision in the sale contract indicating that the parcel was sold “as is” and a second provision in which, they argued, Gillani and Shroff disclaimed any reliance by them on any representation of the seller or the seller’s agents.

The trial court set the motions to dismiss for a hearing on July 29, 2011. On the day scheduled for the hearing, the plaintiffs filed a response to the motions to dismiss. The plaintiffs argued, among other things, that the sale contract was ambiguous because, although it provided that the parcel was being sold “as is,” the sale contract also required that the Hollimans convey good title to the parcel; they argued that the ambiguity should be resolved in the plaintiffs’ favor. The plaintiffs also argued that the merger doctrine did not operate to extinguish the terms of the sale contract because a separate document signed by Shroff, Gillani, and the Hollimans indicated their agreement that the terms and conditions of the sale contract would survive the closing on the parcel. The plaintiffs asserted that Gillani and Shroff had asked at the closing whether there were any problems with the title of the parcel and that the defendants did not indicate the existence of any such problems.

On July 29, 2011, the trial court entered an order in which it converted the motions to dismiss to summary-judgment motions and continued the hearing on those motions until August 22, 2011.

On August 12, 2011, West Alabama filed a supplement to its motion in which it submitted Ashford’s affidavit and cited additional caselaw in support of its argument that the language contained in the deed defeated the plaintiffs’ claims. In her affidavit, Ashford stated that she attended the closing on the parcel and that, during the closing, Gillani and Shroff were given a copy of the title commitment, which indicated the existence of a statutory right to redeem the parcel. On August 15, 2011, the Hollimans filed a supplement to their motion in which they joined West Alabama’s supplement to its motion.

Separately on August 12, 2011, Cook and Snell & Associates filed a motion for a summary judgment and a supporting brief. They argued that the “as is” provision in the sale contract barred the plaintiffs’ claims against them. They also asserted that they did not owe the plaintiffs a fiduciary duty and that, even if they did, they did not breach that duty. They argued that they served only as a conduit of information between Gillani and Shroff and the Hollimans and that they did not have independent knowledge of the quality of the Hollimans’ title. Finally, they argued that Gillani and Shroff were fully informed of the statutory right of redemption at the time of closing by virtue of having received at that time a title-insurance binder listing the existence of the right of redemption.

Cook and Snell & Associates submitted a number of documents as attachments to their brief, including Cook’s affidavit. In that affidavit, Cook stated, among other things, that Gillani and Shroff did not inquire during the closing as to the quality of title being conveyed.

On August 19, 2011, the plaintiffs filed a motion to continue the hearing on the pending summary-judgment motions. The plaintiffs also submitted the affidavit of Karim Gillani, the father-in-law of Rubina Gillani, in opposition to the pending summary-judgment motions on August 20, 2011. In his affidavit, Karim Gillani stated that, during the closing on the parcel, he asked three times whether the parcel had clear title. He stated that the defendants all agreed that the parcel was free and clear of any and all “liens” and that no one presented anything in writing indicating that there were any “liens” on the parcel.

On August 21, 2011, the plaintiffs filed what they titled a “final supplement to opposition to defendants’ motion for summary judgment.” In it, they stated that Rubina Gillani and Shroff had repeatedly been assured that the parcel was being conveyed with clear title, and they again argued that the terms of the sale contract requiring the conveyance of clear title to the parcel survived the closing. To their supplement, the plaintiffs attached the affidavit of Rubina Gillani, in which she stated that she had relied upon the statement in the sale contract that the Hollimans would transfer clear title to the property to her and that her father, Karim Gillani, had asked three times during the closing whether title to the parcel was clear. The plaintiffs also attached the affidavits of Shabnam Gillani, Khaleel Gillani, and Sal-im ■ Gillani, each of whom confirmed that Karim Gillani had asked three times during the closing whether the parcel had clear title and that he had received an affirmative response from Ashford, the Hollimans, and Cook.

On August 22, 2011, the day set for the hearing on the defendants’ summary-judgment motions, the plaintiffs filed an objection to the defendants’ motions on the ground that the defendants had filed materials supporting their motions less than 10 days before the hearing, in violation of Rule 56(c)(2), Ala. R. Civ. P. On the same day, West Alabama and the Hollimans filed a motion to strike the affidavits the plaintiffs had submitted on August 21, 2011, because, they asserted, they were untimely. The trial court continued the hearing on the defendants’ motions, resetting the hearing for September 8, 2011.

On August 31, 2011, Cook and Snell & Associates filed a supplement to their brief in support of their summary-judgment motion, attaching the deed by which the Hol-limans had conveyed the parcel to Gillani and Shroff.

On September 6, 2011, the plaintiffs filed a motion to substitute Ticor Title Insurance Company of Florida (“Ticor”) for a fictitiously named defendant. Separately, the plaintiffs filed a motion to stay the action and to refer the parties’ dispute to arbitration. They asserted that the sale contract contained an arbitration clause requiring that any dispute arising out of the sale contract be submitted to arbitration. They also asserted that the title-insurance policy issued to Gillani and Shroff for the parcel contained a provision providing for arbitration of disputes. The plaintiffs also filed an amended supplement to their objection to the defendants’ summary-judgment motions in which they argued that there was a genuine issue of material fact as to whether they had been put on notice of a defect in the title of the parcel. They also asked that the court deny the summary-judgment motions to “allow the plaintiffs enough time to adequately prepare [their] case.”

On September 7, 2011, the plaintiffs filed a motion to amend their complaint to add claims of breach of contract and fraud against Cook, Snell & Associates, Ashford, West Alabama, and Ticor.

On September 8, 2011, West Alabama filed a response to the plaintiffs’ motion to compel arbitration. It argued that it was not a party to the title-insurance policy that contained the arbitration agreement and that, as a result, the claims against it were not subject to arbitration. West Alabama also contended that the plaintiffs had waived their right to seek arbitration because they chose to file an action against the defendants rather than to seek arbitration. West Alabama stated that the defendants had been prejudiced by the plaintiffs’ engaging in litigation because they had been forced to respond to the litigation, to attend hearings, and to respond to discovery requests. It stated that “[t]he litigation costs incurred by this Defendant alone total several thousand dollars representing over forty hours dedicated to this litigation” and that the plaintiffs had waited until only two days before the hearing on the defendants’ dispositive motions to raise the issue. The Hollimans joined West Alabama’s response. On September 15, 2011, Ashford filed a motion for a summary judgment based on the same grounds that West Alabama had asserted.

West Alabama also filed an opposition to the plaintiffs’ motion to amend their complaint; the Hollimans joined in that opposition. Cook and Snell & Associates also filed an opposition to the amendment of the plaintiffs’ complaint.

The trial court scheduled a hearing on the pending summary-judgment motions for September 19, 2011. On September 17, 2011, the plaintiffs filed a second affidavit of Rubina Gillani. On September 20, 2011, Cook and Snell & Associates filed a motion to strike that affidavit because, they asserted, the affidavit was untimely and contained legal conclusions and statements that were inconsistent with prior sworn testimony.

On September 20, 2011, the trial court entered a summary judgment on all the claims asserted against Cook, Snell & Associates, and West Alabama. The trial court entered a summary judgment as to all the claims asserted against the Holli-mans, except for the claim of breach of contract. In separate orders entered the same day, the trial court denied the plaintiffs’ motion to amend their complaint and their motion to compel arbitration.

The plaintiffs filed an appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. The plaintiffs, among other things, appealed the trial court’s denial of their motion to compel arbitration. This court affirmed without an opinion that part of the appeal in which the plaintiffs argued that the trial court had erred in denying their motion to compel arbitration. Kraz, L.L.C. v. Holliman (No. 2110196, April 27, 2012), 143 So.3d 873 (Ala.Civ.App.2012) (table). The plaintiffs also purported to raise issues pertaining to the propriety of the September 20, 2011, summary-judgment order, the trial court’s denial of their motion to amend their complaint, and the trial court’s failure to rule on their motion to substitute Ticor for a fictitiously named defendant. This court granted the appellees’ motion to strike those arguments on the basis that the arguments related to interlocutory orders and, therefore, would not support an appeal.

While the appeal of the denial of the plaintiffs’ motion to compel arbitration was pending in this court, the trial court entered an order staying the action pending the resolution of the appeal. This court’s no-opinion order of affirmance in Kraz, L.L.C. v. Holliman was released on April 27, 2012, and our supreme court denied a petition for certiorari review on August 10, 2012; this court entered its certificate of judgment on August 10, 2012. While the petition for a writ of certiorari was pending, Cook and Snell & Associates moved the trial court for the entry of a Rule 54(b) certification of the September 20, 2011, summary-judgment order.

On August 30, 2012, the trial court entered an order granting Ashford’s September 15, 2011, motion for a summary judgment. On March 27, 2013, the trial court entered a summary judgment in favor of the Hollimans on the plaintiffs’ breach-of-contract claims. The plaintiffs appealed, and our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In their appellate brief, the plaintiffs argue that the trial court erred in denying their September 7, 2011, motion to amend their complaint. As already stated, in their proposed amended complaint, the plaintiffs sought to assert breach-of-contract claims against Snell & Associates, Cook, Ashford, West Alabama, and Ticor; in their proposed amended complaint, the plaintiffs noted that they had moved to substitute Ticor for a fictitiously named defendant. In addition, in their proposed amended complaint, the plaintiffs set forth their fraud claims against Snell & Associates, Cook, Ashford, West Alabama, and Ticor in more detail.

With regard to the amendment of pleadings, Rule 15(a), Ala. R. Civ. P., provides:

“(a) Amendments. Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise.”

The plaintiffs cite Ex parte Bailey, 814 So.2d 867 (Ala.2001), for the proposition that amendments to complaints should be freely allowed. In Ex parte Bailey, our supreme court explained:

“Rule 15(a), Ala. R. Civ. P., provides that amendments of pleadings ‘shall be freely allowed when justice so requires.’ A trial judge does not have unbridled discretion to refuse such an amendment.
“ We simply state here that if Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.’
“Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975) (emphasis supplied). When it granted the motion to strike, the trial court did not state any ground for doing so. [The respondent], who did not claim that the amendment would result in undue delay or prejudice, has not provided any valid ground for the trial court’s order.”

Ex parte Bailey, 814 So.2d at 869-70. See also Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 953 (Ala.2003) (When a motion to amend a pleading is filed more than 42 days before the action is scheduled for a trial, “a trial court has no discretion; it can deny a requested amendment only if there exists a ‘valid ground’ for the denial, such as ‘actual prejudice or undue delay.’ ... In other words, the burden is on the trial court to state a valid ground for its denial of a requested amendment.”).

In their briefs submitted to this court, the defendants advocate affirming the denial of the motion to amend the complaint based on Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So.2d 68 (Ala.1989). In that case, after the plaintiffs filed their action, the parties engaged in discovery, including the taking of depositions, in support of their positions on a summary-judgment motion. The parties agreed that discovery would be completed by a certain date, and the trial court scheduled a date for the trial on the merits, although that date was later postponed. After the original date for trial, and after the date on which the summary-judgment motion had been submitted to the trial court for its consideration, the plaintiffs filed an amended complaint, and AmSouth then moved to strike that amended complaint. The trial court granted the motion to strike the amended complaint and entered a summary judgment in favor of AmSouth. On appeal, our supreme court, among other things, affirmed the trial court’s striking of the amended complaint, holding cursorily that, under the facts of that case, the trial court had not abused its discretion in so ruling. Government Street, 553 So.2d at 70.

This case is distinguishable from Government Street in that, in this case, the motion to amend was not filed after the matter had been scheduled for trial. In fact, the trial court in this case had not scheduled the matter for a trial at the time it entered its order denying the motion to amend. In such a situation, or where the motion to amend is filed more than 42 days before a scheduled trial date, the denial of a motion to amend a pleading “ ‘ “must be based on a valid ground,” ’ ... such as ‘actual prejudice or undue delay.’” Ex parte GRE Ins. Grp., 822 So.2d 388, 390 (Ala.2001) (quoting Ex parte Bailey, 814 So.2d at 869, and Ex parte Thomas, 628 So.2d 483, 486 (Ala.1993)).

The plaintiffs sought to amend their complaint approximately four months after the filing of their initial complaint. At that time, the discovery conducted by the parties was limited to the exchange of documents; no depositions of any of the parties or potential witnesses had occurred. The action had not been scheduled for a trial on the merits; only a summary-judgment hearing had been scheduled.

Rule 15(a) freely allows an amendment to a complaint unless, among other things, an opposing party moves to strike the amendment. In this case, we interpret the oppositions or responses filed by the defendants to the plaintiffs’ motion to amend their complaint to be, in substance, motions to strike that amendment. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996). A motion must be interpreted by its substance rather than by its style. In their oppositions, the defendants did not argue that they would be prejudiced by the amendment or that an amendment would cause undue delay. Rather, the defendants argued before the trial court that the claims asserted in the proposed amended complaint were without merit. The trial court did not state a basis for its ruling.

Given the facts of this case and the procedural posture of the case at the time the plaintiffs’ sought to amend their complaint, we conclude that the trial court erred in denying the plaintiffs permission to assert that amendment. As our supreme court explained in Ex parte Bailey, 814 So.2d at 870, “[a]t the time [the plaintiffs] filed the ... amendment, the case had not been set for trial, and it is uncontested that the amendment would not cause undue delay or prejudice the substantial rights of any party.” Accordingly, we reverse the order denying the motion to amend the complaint, and we remand the cause for further proceedings consistent with this opinion.

Because we have concluded that the trial court erred in refusing to allow the plaintiffs to assert additional claims in their amended complaint, and because we are directing the trial court to enter an order allowing those claims, we reverse the judgment and remand for further proceedings.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

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

DONALDSON, J., recuses himself.

      . Although the plaintiffs filed a motion to substitute Ticor as a named defendant to their complaint, the trial court did not rule on that motion, and the plaintiffs did not serve Ticor. Accordingly, Ticor was never a party to this action.

      . An order granting or denying a motion to amend a complaint is interlocutory. Deakle v.

        Childs, 939 So.2d 936, 939 (Ala.Civ.App.2006).

      . In the proposed amended complaint, the plaintiffs referred in their allegations to "the Title Company” and stated that that term "include[d]” Ticor.

      . Our supreme court has stated:
      " 'In the context of a [Rule] 15(a) amendment, prejudice means that the nonmoving party "must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” ' Id. (Emphasis added.) (Quoting Heyl & Patterson Int’l v. F.D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir.1981).) 'And by prejudice to the rights of the other party is meant, without loss to him other than such as may result from establishing the claim or defense of the party applying.’ McDaniel v. Hoblit, 34 Wyo. 509, 515, 245 P. 295, 297 (1926) (emphasis added).”

        Ex parte GRE Ins. Grp., 822 So.2d at 391.

      . The defendants argue in their briefs submitted to this court, as they did before the trial court, that the claims asserted in the amended complaint are without legal basis. This court has not considered that argument, because it is one to be made before, and addressed by, the trial court on remand.


author: DONALDSON, Judge. THOMAS, Judge,

text:
    M.E.W. v. J.W.
    2120401.
    Court of Civil Appeals of Alabama.
    Dec. 6, 2013.

      Jeffrey P. Montgomery and A. Davis Bailey of Montgomery Law Group, P.C., Gadsden, for appellant.
    Shannon L. Millican, Gadsden, for appel-lee.
   DONALDSON, Judge.

M.E.W. (“the mother”) appeals from the dismissal by the Etowah Circuit Court (“the circuit court”) of her appeal from the judgment of the Etowah Juvenile Court (“the juvenile court”) terminating her parental rights to J.N.W., S.E.W., J.R.W., and C.R.W., all minor children (“the children”), born to her and J.W. (“the father”). We affirm the dismissal of her appeal to the circuit court as untimely.

Facts and Procedural History

The father and the mother are the biological parents of the children. The father and the mother divorced, the father was awarded custody of the children, and the mother was awarded visitation. The mother’s visitation rights were suspended in 2008. The record reflects that the father filed petitions in the juvenile court on April 1, 2011, seeking to terminate the mother’s parental rights to each of the children on the ground that the mother was “unable or unwilling to discharge her responsibilities as a parent to and for the minor children.” See generally § 12-15-319, Ala.Code 1975. The father attempted to serve summonses for the petitions on the mother by certified mail at her last known address; however, the summonses were returned “unclaimed.” The father filed a motion with the juvenile court for an order directing service by publication. The juvenile court granted that motion, and service by publication was made upon the mother by publishing notice of the proceedings for four consecutive weeks in The Messenger newspaper in Etowah County, Alabama, and The Times-Herald newspaper in Coweta County, Georgia, which was the county of the last known residence of the mother. The mother did not file answers to the petitions. The juvenile court held a hearing on the petitions on January 25, 2012, at which the mother did not appear, and the next day the juvenile court entered an order terminating the mother’s parental rights to the children.

On May 15, 2012, the mother filed a motion, purportedly pursuant to Rules 59(e) and 60(b), Ala. R. Civ. P., seeking to set aside the judgment terminating her parental rights. In her motion, the mother argued that although she resides at the address to which the summonses were sent by certified mail, she never received notice of the certified mail. She further argued that the service by publication was ineffective because it did not refer to her by her legal name.

On May 18, 2012, the juvenile court issued an order setting the mother’s motion for a hearing on June 27, 2012. On that order, the juvenile-court judge handwrote and signed a notation stating: “The hearing will be limited to the very narrow issue of why the mother did not sign for the certified mail sent to her. This will not be a re-hearing on the merits.” Following the June 27, 2012, hearing, the juvenile court entered a detailed order on July 19, 2012, denying the mother’s motion to set aside the termination judgment. The juvenile court found that the mother’s “testimony offers no plausible explanation as to why” she did not receive notice of the certified mail when the Post Office attempted to deliver it on April 9 and 11, 2011. The juvenile court found that “[t]he mother’s Rule 60 Motion was filed within four months after the entry of the termination Order. However, the mother’s explanation as to the certified mail letter does not qualify as ‘excusable neglect’ Rather her failure to sign for it implies willful neglect.”

On July 23, 2012, the mother filed a motion to set aside the juvenile court’s July 19, 2012, order and to supplement the record with exhibits offered to prove that the mother attempted to make contact with the children before her parental rights were terminated. The record reflects that the juvenile-court judge hand-wrote “Granted” on that motion and signed and dated that motion on July 24, 2012. On October 26, 2012, the juvenile court entered an order purporting to grant the mother’s motion to supplement the record but denying her motion to set aside the July 19, 2012, order.

The mother filed a notice of appeal with the circuit court on October 29, 2012, pursuant to Rule 28(B), Ala. R. Juv. P. On October 30, 2012, the father filed a motion to dismiss the mother’s appeal as untimely, specifically asserting that because the juvenile court had failed to rule on the mother’s July 23, 2012, motion within 14 days, that motion had been denied by operation of law on August 6, 2012, thereby making the juvenile court’s October 26, 2012, order a nullity and her October 29, 2012, notice of appeal untimely. See Rule 59.1(dc), Ala. R. Civ. P.

The circuit court held a hearing on the father’s motion to dismiss on December 12, 2012, and the circuit court reserved ruling on the motion pending an opportunity for the parties and the children’s guardian ad litem to submit briefs. On February 8, 2013, the circuit court entered an order granting the father’s motion to dismiss the mother’s appeal.

The mother filed a timely notice of appeal to this court from the circuit court’s order of dismissal. The mother presents two issues on appeal: whether the circuit court erred by dismissing the mother’s appeal pursuant to Rule 59.1(dc), Ala. R. Civ. P., and whether the circuit court erred by dismissing the mother’s appeal pursuant to Rule 60(b), Ala. R. Civ. P.

Standard of Review

“The timely filing of a notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Committee Comments to Rule 3, Ala. R.App. P. The question whether the mother’s appeal was timely and, thus, whether the circuit court acquired subject-matter jurisdiction over the mother’s appeal is a question of law; thus, we review de novo the dismissal of the mother’s appeal by the circuit court. See Banks v. Estate of Woodall, 129 So.3d 294 (Ala.Civ.App.2013); see also Ex parte Terry, 957 So.2d 455 (Ala.2006) (stating that a claim that a court lacks subject-matter ju-' risdiction presents a question of law, which an appellate court reviews de novo).

Discussion

We must determine whether the circuit court had subject-matter jurisdiction to consider the mother’s appeal.

“[Jjurisdictional 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)). ‘Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ Ex parte Smith, 438 So.2d 766, 768 (Ala.1983). In this case, the jurisdiction of the circuit court to consider the parties’ claims de novo was not timely invoked, and because the circuit court lacked subject-matter jurisdiction, that court’s judgment is void and will not support an appeal to this court. See Singleton v. Graham, 716 So.2d 224, 225-26 (Ala.Civ.App.1998), and Davis v. Townson, 437 So.2d 1305, 1305-06 (Ala.Civ.App.1983).”

McCaskill v. McCaskill, 111 So.3d 736, 737 (Ala.Civ.App.2012).

“All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after the entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time, the period during which a post-judgment motion may remain pending is extended:
“(1) By the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
“(2) Upon the express written consent of all the parties, which consent shall appear of record; or
“(3) By the appellate court to which an appeal of the judgment would lie.
“A failure by the juvenile 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.”

Rule 1(B), Ala. R. Juv. P. “Written notice of appeal shall be filed within 14 days of the date of the entry of order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.” Rule 28(C), Ala. R. Juv. P. This court has stated:

“[W]e must consider whether the mother’s notice of appeal invoked the appellate jurisdiction of this court.
“ ‘It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). “The timely filing of [a] notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (“an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived”).’
“Kennedy v. Merriman, 963 So.2d 86, 87-88 (Ala.Civ.App.2007).
“Under the Alabama Rules of Juvenile Procedure, the mother had 14 days from the denial of her postjudgment motion to file her notice of appeal. See Rule 28(C), Ala. R. Juv. P.; and H.J.T. v. State ex rel M.S.M., 34 So.3d 1276, 1279 (Ala.Civ.App.2009) (‘A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a [timely filed] postjudgment motion.’).
“Thus, the mother’s notice of appeal must have been filed no later than [14 days after the denial of her post-judgment motion] to be timely. Because the mother did not appeal until ... after the 14-day period had expired, this court has no jurisdiction to consider her appeal. See Rule 2(a)(1), Ala. R.App. P. (‘An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’).”

R.P.M. v. P.D.A., 112 So.3d 49, 51 (Ala.Civ.App.2012).

On May 15, 2012, the mother filed in the juvenile court a motion, purportedly pursuant to Rules 59(e) and 60(b), Ala. R. Civ. P., seeking to set aside the January 26, 2012, judgment terminating her parental rights. The mother’s motion for relief pursuant to Rule 59(e) was not timely because the motion was filed more than 14 days after the judgment was entered. However, the mother’s motion also alleged that she had not been properly served and that the judgment terminating her parental rights was void on that basis. See Wright v. Rogers, 435 So.2d 90 (Ala.Civ.App.1983) (lack of proper personal service upon a defendant renders a judgment void). That portion of the motion sought relief pursuant to Rule 60(b)(4), Ala. R. Civ. P. See Hooie v. Barksdale, 93 So.3d 942 (Ala.Civ.App.2012). A Rule 60(b)(4) motion is not subject to the requirement that it be filed within 14 days of the judgment. The juvenile court set the motion for a hearing on June 27, 2012, on “the very narrow issue of why the mother did not sign for the certified mail sent to her.” Further, that portion of the motion was not subject to being denied by operation of law after the expiration of 14 days. See Ex parte R.S.C., 853 So.2d 228, 234 (Ala.Civ.App.2002) (“[A] Rule 60(b) motion for relief from judgment is not deemed denied by operation of law [after 14 days] under Rule 1(B), Ala. R. Juv. P.”). The juvenile court held a hearing on the mother’s motion on June 27, 2012, and it entered a detailed order on July 19, 2012, denying the mother’s motion. It is from that date that the mother had 14 days in which to appeal the denial of her Rule 60(b) motion pursuant to Rule 1(B), Ala. R. Juv. P.; after the expiration of that period, i.e., after August 2, 2012, the juvenile court no longer had jurisdiction to rule on the mother’s motion. Instead of filing a notice of appeal, however, the mother filed a motion with the juvenile court on July 23, 2012, seeking to set aside the denial of her Rule 60(b) motion. That motion was not cognizable in the juvenile court and did not operate to suspend or toll the time for filing an appeal. See Ex parte Jordan, 779 So.2d 183,184 (Ala.2000) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989)) (“ ‘[A] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b), [Ala. R. Civ. P.], motion.’”). The juvenile court’s order of October 26, 2012, purporting to deny the mother’s July 23, 2012, motion was a nullity. The mother did not file her notice of appeal to the circuit court until October 29, 2012, after the 14-day period to appeal from the July 19, 2012, order had expired, and the circuit court had no jurisdiction to consider her appeal. Therefore, because the subject-matter jurisdiction of the circuit court was not properly invoked, we must affirm the circuit court’s dismissal of the mother’s appeal. We express no opinion as to whether the juvenile court had subject-matter jurisdiction over the underlying termination-of-parental-rights petitions pursuant to W.B.B. v. H.M.S., 141 So.3d 1062 (Ala.Civ.App.2013). See also R.P.M. v. P.D.A., 112 So.3d at 51 n. 5.

For the reasons expressed above, we affirm the circuit court’s dismissal of the mother’s untimely appeal from the juvenile court.

The mother’s request for attorney fees is denied.

AFFIRMED.

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

THOMAS, J., concurs in the result, with writing.

THOMAS, Judge,

concurring in the result.

I agree that the circuit court’s judgment dismissing the appeal of the juvenile court’s judgment terminating the parental rights of M.E.W. (“the mother”) should be affirmed. I write to clarify the basis upon which I believe the affirmance should be based.

The juvenile court’s judgment terminating the mother’s parental rights was entered on January 26, 2012. The mother filed a motion on May 15, 2012, which was entitled “Motion to Set Aside Order Terminating Parental Rights.” The body of the motion mentioned both Rule 59(e), Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. The mother’s argument was that she had not been served with the petitions to terminate her parental rights. Thus, the motion was, in substance and style, a Rule 60(b)(4) motion alleging that the January 26, 2012, juvenile-court judgment terminating her parental rights was void for lack of personal jurisdiction because the mother had not received service of process. Hooie v. Barksdale, 93 So.3d 942, 943 (Ala.Civ.App.2012) (construing a Rule 60(b)(6) motion as a Rule 60(b)(4) motion when the movant alleged that she had not been personally served and that, therefore, the trial court had lacked personal jurisdiction over her, rendering the judgment void).

The juvenile court denied the mother’s Rule 60(b)(4) motion on July 19, 2012. Instead of appealing the denial of her Rule 60(b)(4) motion within the 14 days she had to appeal, see Rule 28(C), Ala. R. Juv. P., the mother filed a motion entitled “Motion to Set Aside and Supplement Record.” That motion, in addition to requesting that the mother be permitted to “supplement the record” with certain evidence, requested that the juvenile court “set aside” its order denying her Rule 60(b)(4) motion. A party may not seek reconsideration of the denial of a Rule 60(b) motion, and a motion doing so does not toll the time for taking an appeal from the order denying the motion. See T.K.W. v. State Dep’t of Human Res. ex rel. J.B., 119 So.3d 1187, 1194 n. 3 (Ala.Civ.App.2013); R.M. v. Elmore Cnty. Dep’t of Human Res., 75 So.3d 1195, 1205 (Ala.Civ.App.2011); and Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989). The mother had 14 days from July 19, 2012, to file a notice of appeal to the circuit court. See Rule 28(C); T.K.W., 119 So.3d at 1194; and R.M., 75 So.3d at 1205. The mother’s notice of appeal was not filed until October 29, 2012, well after the expiration of the 14-day period to appeal the denial of her Rule 60(b) motion. Thus, the circuit court properly dismissed the mother’s appeal, and I concur in the result reached by the main opinion.

      . I note that because the mother’s motion was a Rule 60(b)(4), Ala. R. Civ. P., motion, it could be filed at any time; a Rule 60(b)(4) motion is not subject to the four-month requirement applicable to motions under Rule 60(b)(1), (2), and (3) or to the reasonable-time requirement applicable to motions under Rule 60(b)(5) and (6). See Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala.2003); Hooie v. Barksdale, 93 So.3d 942, 944 (Ala.Civ.App.2012).

        . To the extent the mother may have sought relief under Rule 59(e), her motion would have been untimely, having been filed well outside the 14-day period for the filing of a postjudgment motion in the juvenile court. See Rule 1(B), Ala. R. Juv. P.; State Dep’t of Human Res. v. I.P., 874 So.2d 1121, 1123-24 (Ala.Civ.App.2003).

      . I further note that, even if the mother’s appeal had been timely, the circuit court would have been limited to considering on appeal only the propriety of the denial of her Rule 60(b) motion and not the propriety of the underlying judgment terminating her parental rights; that is, her appeal would have been an appeal from the denial of her Rule 60(b)(4) motion and not an appeal from the judgment terminating her parental rights. See D.L.L. v. B.J., 8 So.3d 314, 316 (Ala.Civ. App.2008) (quoting Bryant v. First Tuskegee Bank, 866 So.2d 1139, 1143 (Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638 (Ala.2003)). The mother had long since lost the right to seek review of the January 26, 2012, judgment terminating her parental rights by failing to take an appeal within 14 days of that judgment. See Rule 28(C); State Dep’t of Human Res. v. I.P., 874 So.2d 1121, 1123-24 (Ala.Civ.App.2003).


author: PITTMAN, Judge.

text:
    Sean G. CASEY v. Jonice D. CASEY.
    2120470.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2013.

      John L. Jernigan III of Jernigan Law Firm, P.C., Brewton, for appellant.
    William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellee.
   PITTMAN, Judge.

Sean G. Casey (“the former husband”) appeals from an order of the Escambia Circuit Court denying the former husband’s Rule 60(b), Ala. R. Civ. P., motion seeking relief from a default judgment that had been entered against him and in favor of Jonice D. Casey (“the former wife”) in postdivorce proceedings. We reverse the trial court’s judgment and remand the case with instructions.

These parties have previously been before this court. See Casey v. Casey, 85 So.3d 435 (Ala.Civ.App.2011) {“Casey I”), and Casey v. Casey, 109 So.3d 199 (Ala.Civ.App.2012) {“Casey II”). In Casey I, this court summarized the factual and procedural background as follows:

“The former husband and the former wife were married in 1999; in 2000, the former husband reentered military service and was temporarily transferred to Florida. During that time, the former wife resided in Atmore and waited for the former husband to receive a permanent assignment; the parties’ child was born in September 2000. The parties never reunited, and, in 2003, they decided to proceed with an uncontested divorce. Although the divorce documents were prepared in 2003, the divorce judgment was not entered until December 2006, in part because the former husband had been sent overseas. The divorce judgment incorporated an agreement of the parties; that judgment awarded physical custody of the parties’ child to the former wife, awarded the former husband liberal visitation, and ordered the former husband to pay $500 in monthly child support.
“The record reveals that, after leaving military service in June 2003, the former husband took employment with a private security company that sent him to Iraq in July 2004; he did not return to Florida until March 2005. Thereafter, he traveled to Idaho briefly and then returned to Florida until September 2005. At that time, he moved to Pennsylvania to attend school and remained there until June 2007. Subsequently, the former husband remarried and moved to New Jersey, staying there until September 2007, when his employer sent him to Saudi Arabia until February 2008.
“In May 2007, the former wife filed an action seeking a judgment declaring that the former husband was in contempt for failing to pay $819 in child support and $2,900 in medical expenses (case no. DR-0S-180.01); the former husband was served with the complaint in that action in July 2007. At that time, he was notified that a hearing was set for September 2007, when he was scheduled to be in Saudi Arabia, so he hired an attorney in Bay Minette to represent him and to seek a continuance until his return from overseas. After the September 2007 hearing was continued, the former husband terminated the services of that attorney; however, unknown to the former husband, another hearing had been scheduled for December 13, 2007; nothing in the record indicates that the former husband received formal notification from the trial court of that December hearing date. However, the record does contain a November 2007 e-mail message from the former husband to the former wife in which the former husband acknowledged ‘knowing that a December hearing date regarding the unpaid child support and medical bills had been set. The former husband telephoned his current wife in New Jersey and discovered that she had not received any notice of an upcoming hearing, so he ‘assumed’ that there would be no hearing in December 2007. When the former husband returned from Saudi Arabia in February 2008, he received notification of the entry of a default judgment that had been entered against him. That judgment had determined the former husband’s child-support arrearage to be $29,000.
“The former husband contends that the 2008 judgment is void because he did not have notice that the hearing would review child-support payments back to the date the parties had signed their separation agreement, August 2003, that was subsequently incorporated into a divorce judgment in December 2006. He claims that due process requires that he should have been notified by the trial court that the former wife was not seeking the minimal amount originally alleged in her contempt complaint, ie., $819 in child support and $2,900 in unpaid medical bills. The record does not indicate that the former wife amended her contempt complaint to reflect any increase in her child-support-arrearage claim; moreover, the record does not reflect that any official notice of the December 2007 hearing was sent to anyone representing the former husband other than the former husband’s previous attorney. The record also reflects that the former husband, acting pro se, filed a motion for relief from the default judgment on June 9, 2008. Then, on June 25, 2008, the former husband filed a request seeking a modification of visitation, a modification of child support, and the right to claim the child as a dependent for tax purposes and requests concerning the transportation costs of visitation and potential relocation of the parties; that action was assigned case no. DR-03-180.02. The former wife filed an answer; she also filed a counterclaim seeking an order requiring that the former husband be instructed to obtain professional treatment for certain alleged substance-dependency and mental-health issues before being awarded unsupervised visitation with the child.
Although the former wife contends that that motion was an untimely Rule 59, Ala. R. Civ. P., postjudgment motion because (1) the motion was filed more than 30 days after the entry of the judgment and (2) the former husband, albeit inartfully, pleaded that the judgment was void on due-process grounds, we conclude that the former husband’s post-judgment motion was a Rule 60(b) motion, and we treat it as such in this opinion. See, e.g., Ex parte Lang, 500 So.2d 3 (Ala.1986), and Curry v. Curry, 962 So.2d 261 (Ala.Civ.App.2007).”

85 So.3d at 437-38.

The trial court conducted a bifurcated ore tenus proceeding to address all pending motions on April 21 and August 31, 2009; at the outset of the presentation of evidence on August 31, 2009, the trial court stated its intention to consolidate case no. DR-03-180, case no. DR-03-180.01, and case no. DR-03-180.02 and to proceed under case no. DR-03-180.02 for all three actions. Casey II, 109 So.3d at 202. This court further explained how the case had proceeded procedurally:

“On September 30, 2009, the trial court entered a judgment in case no. DR-03-180.02 that, among other things, denied the former husband’s Rule 60(b) motion to set aside the default judgment that had been entered in January 2008; modified the visitation provisions of the parties’ divorce judgment so as to award the former husband supervised visitation with the child during specified school vacations; ordered the former husband to be evaluated by a qualified mental-health professional and to submit to periodic drug testing every 60 days for a specific period; and denied the former husband’s requests for a modification of child support, to claim the child as a dependent for tax purposes, and for current and prospective relief as to transportation costs of visitation. On October 27, 2009, the former husband filed a motion, pursuant to Rules 59(a) and 59(e), Ala. R. Civ. P., seeking either a new trial or that the trial court alter, amend, or vacate the September 30, 2009, judgment; that motion was accompanied by a memorandum of facts and law that, among other things, challenged the trial court’s ruling in the September 30, 2009, judgment as to the Rule 60(b) motion that the former husband had filed in case no. DR-03-180.01. The trial court denied the former husband’s Rule 59 motion on December 30, 2009.
“The former husband filed a notice of appeal on January 15, 2010, in case no. DR-03-180.02; in his brief in that appeal, the former husband contended that the trial court had erred in denying the Rule 60(b) motion filed in case no. DR-03-180.01, that he had been erroneously ordered to undergo drug testing and a mental-health evaluation, and that the trial court had erroneously awarded the former wife an attorney’s fee. That appeal was assigned appeal no. 2090371. On March 4, 2011, this court, on original submission, issued an opinion in appeal no. 2090371 in which we concluded, in pertinent part, that, to the extent the former husband sought review of the trial court’s denial of his motion for relief under Rule 60(b) from the judgment previously entered in case no. DR-03-180.01, the former husband’s appeal had not been timely taken.”

109 So.3d at 202-03. Specifically, this court determined that, because the former husband’s October 27, 2009, motion was a successive postjudgment motion to “reconsider” the order denying the former husband’s Rule 60(b) motion, it did not suspend the 42-day period to appeal following the denial of his Rule 60(b) motion in the trial court’s September 30, 2009, judgment, and, thus, the former husband’s notice of appeal filed on January 15, 2010, had not been timely filed. Upon granting the former husband’s application for rehearing, however, this court substituted the following analysis regarding the former husband’s argument that the trial court had erred in denying his Rule 60(b) motion in case no. DR-03-180.01:

“[T]he issues raised by the former husband relating to the denial of his Rule 60(b) motion in case no. DR-03-180.01 (the contempt action) may not be considered because the former husband has not filed a notice of appeal in that action. As noted previously, on September 30, 2009, the trial court, in a judgment entered in case no. DR-03-180.02 (the modification action), purported to deny the former husband’s Rule 60(b) motion filed in case no. DR-03-180.01 (the contempt action); however, the former husband filed a notice of appeal only in the modification action. Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action. H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009). Any issues raised by the former husband relating to the purported denial of his Rule 60(b) motion, which was filed in case no. DR-03-180.01 (the contempt action), may not be considered because the former husband has not filed a notice of appeal in that case. Because the former husband, for all that appears in the record, has not filed a notice of appeal in the contempt action, we may not address the correctness of any ruling the trial court may have made regarding the former husband’s Rule 60(b) motion in the contempt action.”

85 So.3d at 439-40.

Following the issuance of that opinion on rehearing on July 29, 2011, the former husband, pursuant to Rule 39, Ala. R.App. P., filed a petition for a writ of certiorari in August 2011 seeking review by the Alabama Supreme Court, which was denied on December 9, 2011. This court’s certificate of judgment in that appeal — Casey I— issued on December 12, 2011. Because the trial court had purported to enter a final judgment before this court’s certificate of judgment had issued on December 12, 2011, this court, in Casey II, dismissed the former husband’s appeal from that order by the trial court as void for lack of jurisdiction. 109 So.3d at 204. On October 30, 2012, the former husband filed a motion in the trial court requesting a “final and appealable judgment” in case no. DR-03-180.01. On February 5, 2013, the trial court entered an order denying the former husband’s motion and declining to enter a final judgment in case no. DR-03-180.01, noting that it had previously denied the former husband’s Rule 60(b) motion. The former husband timely filed his notice of appeal to this court.

On appeal, the former husband argues that the trial court erred in declining to enter a final judgment and requests this court to reach the merits of his appeal from the denial of his Rule 60(b) motion. Because the trial court’s order denying the former husband’s motion for a final judgment in case no. DR-03-180.01 indicates the trial court’s intention that a final judgment had been entered in case no. DR-03-180.01, it is clear to this court that the trial court has made its final determination regarding case no. DR-03-180.01. Thus, we consider the trial court’s February 5, 2013, order as an implicit denial of the former husband’s Rule 60(b) motion and as a final judgment in case no. DR-03-180.01.

With regard to the trial court’s denial of his Rule 60(b) motion, the former husband argues, among other things, that the trial court denied him procedural due process and, thus, erred in denying his motion filed pursuant to Rule 60(b)(4).

“The proper standard of review of the denial of a Rule 60(b)(4) motion is as follows:
“ ‘ “ ‘The standard of review on appeal from the denial of relief under Rule 60(b)(4) 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)); Ex parte N.B., 66 So.3d 249, 254 (Ala.2010).”

Looney v. State, 60 So.3d 293, 296 (Ala.Civ.App.2010). Furthermore,

“we review the denial of a Rule 60(b)(4) motion de novo. Looney v. State, 60 So.3d 293, 296 (Ala.Civ.App.2010). Moreover, ‘[i]n reviewing a trial court’s judgment, we are not limited by the reasoning the trial court applied in reaching its judgment. Instead, we can affirm a trial court’s judgment if it was correct for any valid legal reason.’ Rogers v. Penske Truck Leasing Co., 37 So.3d 780, 789 (Ala.Civ.App.2009). Thus, the only question for review by this court is the legal question whether the judgment is void. Nationwide Mut. Fire Ins. Co. v. Austin, 34 So.3d 1238, 1242 (Ala.2009).”

Hobbs v. Heisey, 118 So.3d 187, 191 (Ala.Civ.App.2012).

The former husband argues on appeal that the trial court failed to comply with Rule 5, Ala. R. Civ. P., and Rule 15, Ala. R. Civ. P., by allowing the former wife to amend her claims as to the former husband’s child-support arrearage and unpaid medical expenses without proper notice to the former husband. Rule 15 states, in pertinent part

“(a) Amendments. Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so , requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise.
“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

Because the former husband did not attend the December 2007 hearing, there could not have been any implied or express consent, as contemplated in Rule 15(b), on his part regarding the additional amounts, above what was alleged in the complaint, that were sought by the former wife. See Sundance Marina v. Smith, 469 So.2d 647, 648 (Ala.Civ.App.1985). The former husband also cites Rule 5(a), which states, in pertinent part, that “[n]o service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.” “[A] party is ‘in default for failure to appear’ when that party does not appear in an action; no formal adjudication of default by a court is necessary.” Austin v. Austin, [Ms. 2120102, July 19, 2013] — So.3d —, — (Ala.Civ.App.2013). In the present case, the former husband was a party in default due to his failure to appear on the day the case was set for a hearing. See Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978). Thus, in accordance with Rule 5(a), service was required on the former husband when the former wife amended her claims as to the former husband’s child-support arrearage and unpaid medical expenses to seek additional amounts.

Moreover, Rule 54(c), Ala. R. Civ. P., states, in pertinent part: “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” (Emphasis added.) In Continental Casualty Co. v. Barlar, 55 Ala.App. 441, 443-44, 316 So.2d 690, 692-93 (Ala.Civ.App.1975), this court reversed, as being void in its entirety, a judgment entered for an amount exceeding the amount claimed in the original complaint, determining that the judgment was beyond the authority of the court to render. See also Jenkins v. Covington, 939 So.2d 31 (Ala.Civ.App.2006). Like in Bar-lar, pursuant to Rule 54(c), the trial court in the present case did not have the authority to enter a judgment for an amount greater than that requested in the former wife’s complaint. We conclude that the default judgment entered against the former husband is void in its entirety. Thus, the trial court erred in denying the former husband’s Rule 60(b)(4) motion. We, therefore, reverse the trial court’s order denying the former husband’s Rule 60(b) motion, and we remand the cause with instructions to the trial court to vacate that order and to grant the former husband’s motion, thereby vacating the default judgment entered against the former husband.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although the trial court declined to enter a final judgment in case no. DR-03-180.01, as requested by the former husband, we proceed as though a final judgment has been entered in that case. This will be further discussed below.

      . The record from Casey II has been incorporated into the present appeal.

      . Although the former husband raises a number of issues on appeal, because one issue is dispositive, we decline to address the remaining issues.

      . We note, however, that, in Bass Pecan Co. v. Berga, 694 So.2d 1311, 1314 (Ala.1997), the Alabama Supreme Court determined that, in cases in which the complaint does not specify the amount of damages sought, a party in default for failure to appear is sufficiently informed that damages could be awarded at the discretion of the court pursuant to Rule 54(c).


author: MOORE, Judge.

text:
    Ex parte SAFETY-KLEEN SYSTEMS, INC., and Safety-Kleen, Inc. (In re Eufaula Marine Power & Equipment, LLC v. Safety-Kleen Systems, Inc., and Safety-Kleen, Inc.) Ex parte Safety-Kleen Systems, Inc., and Safety-Kleen, Inc. (In re Roger Miller d/b/a Roger’s Auto Service v. Safety-Kleen Systems, Inc., and Safety-Kleen, Inc.)
    2120980 and 2120981.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2013.

      Ed R. Haden and Gregory C. Cook of Balch & Bingham LLP, Birmingham; and G. Lane Knight of Balch & Bingham LLP, Montgomery, for petitioners.
    Submitted on petitioners’ brief only.
   MOORE, Judge.

In case no. 2120980, Safety-Kleen Systems, Inc., and Safety-Kleen, Inc. (hereinafter referred to collectively as “Safety-Kleen”), seek a writ of mandamus directed to the Barbour Circuit Court (“the circuit court”) ordering it, among other things, to vacate its denial of Safety-Kleen’s motion to transfer an action — Eufaula Marine Power & Equipment, LLC v. Safety-Kleen Systems, Inc., and Safety-Kleen, Inc. (Barbour Circuit Court, CV-13-900030) (“the Eufaula Marine action”) — from the circuit court to the Barbour District Court (“the district court”). In case no. 2120981, Safety-Kleen seeks a writ of mandamus directing the circuit court to, among other things, vacate its denial of Safety-Kleen’s motion to transfer another action — Roger Miller d/b/a Roger’s Auto Service v. Safety-Kleen Systems, Inc., and Safety-Kleen, Inc. (Barbour Circuit Court, CV-13-900031) (“the Miller action”) — to the district court. We grant the requested petitions and issue the writs.

The Eufaula Marine Action

The documents filed with this court pertinent to the disposition of the petitions establish the following. On April 3, 2013, Eufaula Marine Power & Equipment, LLC (“EMP”), filed in the circuit court a complaint against Safety-Kleen alleging misrepresentation, suppression, and unjust enrichment. EMP asserted that it had entered into a contract with Safety-Kleen, a company engaged in the business of leasing cleaning equipment, selling industrial cleaning supplies, and purchasing and reprocessing used oil. EMP further asserted that Safety-Kleen had added a “fuel surcharge” to some of EMP’s statements; that those charges were nothing more than profit; that the cost of fuel was already built into Safety-Kleen’s monthly charges; and that the “fuel surcharge” was unrelated to any fuel expense actually incurred by Safety-Kleen. EMP asserted that it had paid the allegedly fraudulent charge on multiple occasions, including four times in 2012.

As damages, EMP requested “all damages stemming from Safety-Kleen’s wrongful act, including all applicable compensatory and punitive damages,” and “recovery of all monies improperly procured, plus interest.” Other than limiting its recovery to less than $74,500, EMP did not specify the amount of damages that it was seeking, and EMP did not request a jury trial in its complaint. EMP also filed discovery requests, including a request for video depositions of representatives of Safety-Kleen and a request for the production of documents.

On May 6, 2013, Safety-Kleen filed a motion, pursuant to Ala.Code 1975, § 12-11-9, seeking to transfer the Eufaula Marine action from the circuit court to the district court on the basis of lack of subject-matter jurisdiction. Specifically, Safety-Kleen argued that the amount in controversy was within the exclusive jurisdiction of the district court. On June 20, 2013, EMP responded to Safety-Kleen’s motion to transfer by asserting that its claims sought damages in excess of the circuit court’s jurisdictional base and arguing, in the alternative, that it needed to complete discovery in order to calculate its damages. On July 10, 2013, the circuit court denied Safety-Kleen’s motion to transfer the action to the district court but indicated that it would reconsider Safety-Kleen’s motion to transfer after discovery had been completed. Safety-Kleen timely filed its petition for a writ of mandamus relating to the Eufaula Marine action on August 20, 2013.

The Miller Action

On April 3, 2013, Roger Miller, doing business as Roger’s Auto Service (“Miller”), filed his complaint against Safety-Kleen, asserting claims of misrepresentation, suppression, and unjust enrichment arising from “late fees” charged to Miller by Safety-Kleen; Miller specified no monetary amount of damages in his complaint, but he sought to recover all damages stemming from Safety-Kleen’s wrongful acts, including compensatory and punitive damages. Like EMP, Miller did not include a request for a jury trial in his complaint. Miller also filed discovery requests similar to those filed in the Eufaula Marine action. The Eufaula Marine action and the Miller action were consolidated by the circuit court for purposes of discovery.

On May 6, 2013, Safety-Kleen filed a motion seeking to transfer the Miller action to the district court on the basis of an insufficient amount in controversy. On June 20, 2013, Miller joined in EMP’s response to Safety-Kleen’s motion to transfer. On July 10, 2013, the circuit court denied Safety-Kleen’s motion to transfer the Miller action to the district court, but it indicated that it would reconsider the motion to transfer after discovery had been completed.

On August 20, 2013, Safety-Kleen timely filed its petition for a writ of mandamus relating to the Miller action. On August 23, 2013, this court consolidated Safety-Kleen’s petitions for a writ of mandamus ex mero motu. On August 26, 2013, this court ordered the circuit court to stay all proceedings in both actions pending further order of this court.

Standard for Issuing a Writ of Mandamus

A writ of mandamus is an extraordinary remedy, and it is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So.2d 153,156 (Ala.2000).

Analysis

Section 12 — 12—31 (a), Ala.Code 1975, provides, in part: “The district court shall exercise exclusive jurisdiction over all civil actions in which the matter in controversy, exclusive of interest and costs, does not exceed three thousand dollars ($3,000).” Section 12-11-9, Ala.Code 1975, provides, in pertinent part: “If a case filed in the circuit court is -within the exclusive jurisdiction of a district court ..., the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court....” Alabama caselaw has consistently construed § 12-11-9 to mean that a circuit court must transfer to the appropriate district court a case in which the amount in controversy is $3,000 or less and that a circuit court has no subject-matter jurisdiction to make any other orders in regard to such a case. See, e.g., Ex parte Owens, 533 So.2d 617 (Ala.1988); Culbreth v. Watson, 903 So.2d 127 (Ala.Civ.App.2004); and Gill v. Burrell, 876 So.2d 487 (Ala.Civ.App.2003).

Generally speaking, the amount in controversy for jurisdictional purposes “is determined by the amount asked for in the complaint.” Karrh v. Crawford-Sturgeon Ins., Inc., 468 So.2d 175,177 (Ala.Civ.App.1985) (citing C. Gamble & D. Corley, Alabama Law of Damages §§ 1-3 (1981)). When a plaintiff fails to specify in the complaint the amount of damages it is claiming, that failure does not automatically divest the circuit court of jurisdiction. See Ex parte Dennis, 681 So.2d 157 (Ala.Civ.App.1995). Rather, in determining subject-matter jurisdiction, the amount in controversy must be ascertained from bases other than the ad damnum clause of the complaint. Id. In Ex parte Phil Owens Used Cars, Inc., 4 So.3d 418, 423-24 (Ala.2008), our supreme court held that a court considering a motion to dismiss for lack of personal jurisdiction must consider the facts in the complaint as true unless controverted by the defendant’s affidavits. If the defendant makes a prima facie eviden-tiary showing that the court lacks personal jurisdiction, the plaintiff is then required to substantiate its jurisdictional allegations in the complaint by affidavits or other competent evidence, and the plaintiff may not merely reiterate the factual allegations in the complaint. We cannot discern any reason why that same analysis would not apply when adjudicating a motion to transfer for lack of subject-matter jurisdiction.

Safety-Kleen attached to its motions to transfer affidavits of a company representative establishing that EMP had paid $88.60 in fuel surcharges and that Miller had paid a single late fee of $25.00, although he had been invoiced for additional late charges that had been waived or otherwise credited to his account. Safety-Kleen argued that, under the theories of recovery respectively asserted by EMP and Miller, their special damages could not exceed $88.60 and $25.00, respectively. As for punitive damages, Safety-Kleen pointed out that the United States Supreme Court has indicated that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Safety-Kleen argued that the circuit court would have to assume an award of punitive damages at a constitutionally impermissible rate of over 33 times the compensatory damages in the Eufaula Marine action and 120 times the compensatory damages in the Miller action in order to reach the threshold jurisdictional amount of $3,001. Through its filings, Safety-Kleen made out a prima facie case that the circuit court lacked subject-matter jurisdiction.

Based on the materials filed by Safety-Kleen, the burden shifted to the respondents, as plaintiffs below, to present competent evidence establishing that the amount in controversy exceeds the jurisdictional threshold of the circuit court. See Ex parte Burnell, 90 So.3d 708, 715 (Ala.2012) (citing multiple cases holding that the plaintiff has the burden of establishing jurisdiction when challenged by the defendant). In their joint response to the motions to transfer, EMP and Miller informed the circuit court that they had reviewed the billing records provided by Safety-Kleen. The respondents further stated:

“Based upon these records, there has been a late charge assessed in the amount of $25.00, and the contract appears to extend for five years at approximately between $194.11 and $211.00 per month. Based upon the breach of contract alone, this would bring the total amount of special damages within the jurisdictional threshold for the Circuit Court of Barbour County. Furthermore, there are claims for mental anguish, emotional distress and punitive damages, which would only increase those numbers.”

We find that the response failed to rebut Safety-Kleen’s evidentiary showing. As noted above, the respondents did not file a claim alleging breach of contract. Moreover, the mere fact that Safety-Kleen charged monthly fees in an average amount of approximately $204 per month does not establish that the respondents had been overcharged that full amount. In their complaints, the respondents did not claim damages for every amount charged by Safety-Kleen, but only for the fuel surcharge and late fees charged, respectively, which amounts appear to be undisputed.

The respondents also did not expressly claim damages for mental anguish in their complaints. Assuming, without deciding, that the respondents can recover damages for mental anguish, they did not present any evidence of the alleged mental anguish they endured from the overpayment of $88.60 and $25.00, respectively, from which the circuit court could have estimated the value of those purported claims. Similarly, the respondents did not provide the circuit court with any evidence or argument to substantiate their claim that punitive damages could be recovered and that they could exceed the jurisdictional threshold of the circuit court.

The respondents did assert that they needed to conduct discovery in order to calculate damages and requested that the circuit court suspend a ruling on the motions to transfer until discovery could be completed. In Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 275 P.3d 869 (2012), the Kansas Supreme Court, in an excellent discussion of the procedure for ruling on motions to dismiss based on lack of jurisdiction, held that a trial court has discretion to order discovery on a jurisdictional issue before ruling, which the circuit court did in this case. Under Alabama law, when a dispute arises over discovery matters, the resolution of that dispute is left to the sound discretion of the trial court. Ex parte John Alden Life Ins. Co., 999 So.2d 476 (Ala.2008). Its ruling on those matters will not be reversed absent a showing of an abuse of discretion and substantial harm to the appellant. Id.

In a similar context, Rule 56(f), Ala. R. Civ. P., requires a party to file an affidavit specifically describing the nature of discovery needed in order to respond to a motion for a summary judgment before a ruling on the motion can be continued for that reason. See McGhee v. Martin, 892 So.2d 398 (Ala.Civ.App.2004). Safety-Kleen points out that it voluntarily disclosed documents to the respondents relating to their transactions and made an offer, to which the respondents never replied, to provide the transcripts and exhibits from previously taken depositions in a parallel class action. Safety-Kleen maintains that no further discovery is needed on the issue of the amounts in controversy. The respondents did not specify to the circuit court the discovery they needed in order to obtain evidence in support of their jurisdictional claim, and neither respondent has filed an answer with this court to explain the nature of the discovery they need to ascertain the damages they are claiming in the underlying eases. Moreover, their voluminous outstanding discovery requests do not appear to be limited to the jurisdictional dispute at issue.

Safety-Kleen moved to transfer the cases in part to avoid the costs of complying with the respondents’ discovery requests, which their counsel, by affidavit, estimated could exceed $200,000. Rule 26(dc), Ala. R. Civ. P., limits discovery in district-court actions and would prohibit certain video depositions that the respondents had noticed to the extent the deponent would be available to testify at trial. Also, the circuit court had appointed a special master to deal with discovery matters, which appointment would not be allowed in the district court. See Rule 53(dc), Ala. R. Civ. P. Safety-Kleen argues that the amounts in controversy do not justify the discovery requested or the costs associated therewith and that the discovery would in some instances duplicate other discovery already provided to respondents’ attorneys in other similar cases. The respondents provided nothing to the circuit court or to this court to refute that showing.

Given the particular circumstances of this case, the circuit court did not have an evidentiary basis for continuing the ruling on the motions to transfer to allow discovery, and its decision to allow discovery before ruling has subjected Safety-Kleen to substantial harm. On that basis, we conclude that the circuit court exceeded its discretion in delaying a ruling on the motions to transfer for discovery purposes. The circuit court should have ruled based solely on the evidence before it, which evidence conclusively proved that the amounts in controversy did not exceed $3,000 and that the motions to transfer were due to be granted.

In so holding, we do not overrule Ex parte Dennis, supra, as requested by Safety-Kleen. In Ex parte Dennis, three plaintiffs brought personal-injury claims against one defendant in circuit court. The plaintiffs in that action did not specify the amount of damages they were seeking. The defendant moved to transfer the case to district court, apparently arguing that the failure to specify an amount of damages automatically divested the circuit court in that case of jurisdiction. This court rejected that argument, holding that the circuit court in that case was presumed to have jurisdiction, that the fact that the plaintiffs had requested a jury demand signified that the case did not belong in district court, where jury trials are not allowed, and that the plaintiffs could prove the amount in controversy later at trial. In this case, Safety-Kleen did not rest merely on an argument that a claim for unspecified damages divests the circuit court of jurisdiction; it presented evidence proving that the amounts in controversy do not exceed the circuit court’s threshold jurisdictional amount. That evidentiary showing, which was not at issue in Ex parte Dennis, puts these cases in a different procedural posture. We remain convinced that, in some cases, such as when a defendant fails to make an evidentiary showing of the amount in controversy or when the evidence of the amount in controversy is in dispute, a trial court could, in its discretion, leave the jurisdictional issue to be decided until after a trial on the merits. See Filardo, supra. We therefore hold that these cases, due to their factual differences, do not fall within the rule of Ex parte Dennis.

Because the respondents did not carry their burden of proving that the amounts in controversy fell within the jurisdiction of the circuit court, and because the respondents did not describe sufficiently the discovery needed to prove the subject-matter jurisdiction of the circuit court, we conclude that Safety-Kleen has a clear legal right to have the cases transferred to the district court. We therefore grant the petitions for a writ of mandamus and direct the circuit court to vacate its orders denying the motions to transfer and to enter new orders granting the motions and transferring the cases to the district court. We also direct the circuit court to vacate any discovery orders or other orders it has entered in these cases, which are void for lack of subject-matter jurisdiction. See generally Chappell v. JP Morgan Chase Bank, NA, 106 So.3d 904 (Ala.Civ.App.2012); see also Ex parte Montgomery, 97 So.3d 148, 154 (Ala.Civ.App.2012) (quoting Ex parte Montgomery, 79 So.3d 660, 667 (Ala.Civ.App.2011)) (“ ‘Mandamus will lie to direct a trial court to vacate a void judgment or order.’ ”).

2120980 — PETITION GRANTED; WRIT ISSUED.

2120981 — PETITION GRANTED; WRIT ISSUED.

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