text:
    Cordarrell JOHNSON a/k/a Codarrell Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00939-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE, ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Johnson was convicted of two counts of sale of Dilaudid, a schedule II controlled substance, in violation of section 41-29-139(a)(1) of the Mississippi Code Annotated (Supp.2012). He was sentenced to serve two twenty-year terms concurrently, each with five years suspended. Johnson received an enhanced sentence because the sale occurred within 1,500 feet of a school or church. See Miss.Code Ann. § 41-29-142 (Rev.2009).

¶ 2. Johnson never appealed his conviction, but he later filed a motion for post-conviction relief (PCR) alleging that his brother, Brian, actually committed the crimes for which Johnson was convicted. He attached a purported affidavit in which Brian essentially confessed to the crimes. The Coahoma County Circuit Court dismissed Johnson’s motion without an evidentiary hearing, explaining that the mistaken-identity issue was litigated and determined at trial. Johnson now appeals claiming that the circuit court erred in dismissing his PCR motion because this newly discovered evidence proves his actual innocence.

STANDARD OF REVIEW

¶ 3. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 4. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

¶ 5. The Mississippi Supreme Court has explained that one seeking a new trial based on newly discovered evidence must make four showings: (1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered prior to trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) the new evidence will probably produce a different result or verdict in the new trial. See Smith v. State, 492 So.2d 260, 263 (Miss.1986), superseded by statute on other grounds as recognized in McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). Relief must be denied if the petitioner fails to meet any one of these four elements. See id.

¶ 6. At the outset, we must note that the purported affidavit is invalid. Although styled an affidavit and notarized, the alleged confession by Johnson’s brother, Brian, conspicuously omits a clear statement that it is sworn under oath. The document states in relevant part:

BEFORE ME, the undersigned authority, personally appeared Brian Johnson who, after first being personally known by me, deposes and says[:]
[Signature of Brian Johnson]
Signed before me this the 29 day of April 2011.
[Signature and seal of the notary]

An affidavit is “a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” Black’s Law Dictionary 62 (8th ed.2004) (emphasis added). An unsworn affidavit is “merely a piece of paper with the word ‘affidavit’ as its title.” Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App.2007). Brian’s statement is not a valid affidavit. It has also not escaped our notice that Johnson filed his PCR motion shortly after the statute of limitations for the drug sales had run, precluding any possibility of Brian being prosecuted for the offenses.

¶ 7. As to whether the alleged confession amounts to new evidence, Johnson has failed to show why Brian could not have testified during his trial, given that the theory of Johnson’s defense has always been that Brian was the actual perpetrator and Johnson was implicated because the two look alike. In his PCR motion, Johnson states only that he does not know why Brian was not called to testify, apparently conceding that Brian was available and willing to testify. Since the burden is on Johnson to show that the alleged confession is newly discovered, the total absence of any evidence proving that fact is fatal. Mississippi Code Annotated section 99-39-9(l)(e) (Supp.2012) requires a PCR motion to contain:

A specific statement of the facts which are not within the petitioner’s personal knowledge. The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion. The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what the petitioner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

¶ 8. In his brief on appeal from the dismissal of his PCR motion, Johnson offers the belated explanation that Brian could have invoked his Fifth Amendment right to silence. But this appears to be speculation and is unsupported by any evidence. And even if we were to accept that claim, Johnson cannot exclude the possibility Brian would have denied committing the crimes. “[W]here a party fails to call a witness who was available during trial, the testimony of that witness cannot be considered newly discovered evidence.” United States v. Beasley, 582 F.2d 337, 339 (5th Cir.1978). In Beasley, the Fifth Circuit adopted the reasoning of the district court that the decision of whether to call a witness is “deliberate and strategic.” Id. This is because “[t]he precise testimony of any potential witness cannot be known until it is had.” Id. “The defendant is not entitled to a new trial so that he may employ a different strategy.” Id.

CONCLUSION

¶ 9. “When the only basis for relief is the uncorroborated assertion of the petitioner, the motion may be dismissed without a hearing.” Shinall v. State, 832 So.2d 1291, 1293 (¶ 5) (Miss.Ct.App.2002). Brian’s confession is dubious, and, fatally, Johnson has no proof it is actually newly discovered evidence meeting the four requirements outlined in Smith, 492 So.2d at 263. We find no error in the circuit court’s dismissing the PCR motion without an evidentiary hearing.

¶10. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND JAMES, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Robert McBRIDE, Appellant v. Vanessa McBRIDE, Appellee.
    No. 2011-CA-01579-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.

      Tamekia Rochelle Goliday, attorney for appellant.
    Felecia Perkins, Jessica Nicole Ayers, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers the division of property from the divorce of Robert and Vanessa McBride. The parties consented to an irreconcilable differences divorce and allowed the chancellor to resolve certain disputed issues. After a final judgment and two motions to reconsider, Robert appeals the modified judgment of divorce. Robert argues that the chancellor erred when she failed to make findings of fact and conclusions of law as to her consideration of the Ferguson factors and when she modified the original division without a supplemental Ferguson analysis after Robert asked for findings of fact and conclusions of law. Finding reversible error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. Vanessa and Robert were married on August 17, 1995. They have three children. Before the marriage, Robert served seventeen years in the military. In 2005, he retired from the military. The parties have only lived together as husband and wife for about four years of the fifteen-year marriage. For much of the marriage, the parties maintained separate residences and kept all of their affairs separate.

¶ 3. On December 3, 2008, Vanessa filed a complaint for separate maintenance. On September 16, 2009, Robert answered and filed a counterclaim for divorce on the grounds of abandonment, adultery, and habitual cruel and inhuman treatment.

¶ 4. In September 2010, both parties moved to consent to a divorce on the ground of irreconcilable differences and a trial on certain contested matters. The chancellor granted the motion. The issues left for the chancellor to decide were: (1) whether the parties should be ordered to split all the remaining mai'ital assets, such as bank accounts and vehicles, and if so, by what percentage and (2) whether Robert should be ordered to give Vanessa one-half of his retirement funds and to pay the survivor’s benefit.

¶ 5. On December 14, 2010, the chancellor entered a final judgment of divorce, which provided, in pertinent part:

As to the property division of the parties’ personal property, the Court considered the factors set forth in Ferguson v. Ferguson. Additionally, the Court noted that regardless of the length of time that the parties have been legally married, they have effectively lived together as man and wife in the same household for only approximately four (4) years. At all other times, the parties have maintained separate residences, separate bank accounts, and acquired property utilizing their own funds. After applying the Ferguson factors to the facts of the case, the Court finds as follows:
a. Vanessa McBride is entitled to $15,150.00 as equitable distribution from Robert McBride’s assets; and
b. Vanessa McBride is entitled to fifteen percent (15%) of one-half (½) of Robert McBride’s military survivor benefit.

The chancellor further held that “the parties shall retain exclusive use and possession of all personal assets, property, bank accounts, retirement accounts!,] and other property in their respective possession.”

¶ 6. On December 21, 2010, Vanessa filed a motion for reconsideration and challenged the award of part of the military survivor benefit. She argued that such an award was void of value because she could not be entitled to the military survivor benefit if she was not first awarded a portion of Robert’s retirement funds. Vanessa’s motion was heard on February 14, 2011. The record does not include a transcript of those proceedings.

¶ 7. On April 8, 2011, Robert filed a “Motion for Rehearing on Vanessa McBride’s Motion for Reconsideration or, in the Alternative, for New Trial.” Vanessa filed a motion to strike Robert’s motion. Robert then withdrew his motion.

¶ 8. On June 6, 2011, the parties appeared before the court, but the record contains no transcript.

¶ 9. On June 8, 2011, the chancellor granted Vanessa’s motion and modified the judgment and ruled:

a. That in the Final Judgment of Divorce entered on December 14, 2010[,] there was one provision that of the Judgment that was void of value and could not be awarded as written in the Judgment due to a mistake of fact.
b. That an award of fifteen percent (15%) of one-half (1/2) of Robert McBride’s military survivor benefit ... cannot be awarded as the military does not allow such division.
c. That this Court has jurisdiction to award [Vanessa] a portion of [Rob-ertas retirement income according to the Uniformed Services Former Spouses’ Protection Act (USFSPA), specifically 10 U.S.C.A. § 1408.
d. That the Final Judgment of Divorce shall be amended and [Vanessa] is entitled to and shall be awarded fifteen percent (15%) of one-half (1/2) of the disposable income of [Robert]’s military retirement pay.

The order also provided that Robert “shall not be required to maintain the Survivor’s Benefit Plan as to” Vanessa.

¶ 10. On June 20, 2011, Robert filed a motion for reconsideration of the modified award and for findings of fact and conclusions of law. A hearing was held on August 9, 2011, and the record includes a transcript of that hearing. The chancellor denied Robert’s motion on September 29, 2011. Robert filed his notice of appeal on October 20, 2011.

ANALYSIS

1. Whether this Court has jurisdiction to consider this appeal.

¶ 11. We begin our analysis with Vanessa’s jurisdictional argument. She claims that this appeal should be dismissed because Robert’s notice of appeal was untimely. She argues that the chancery court lacked jurisdiction to consider his successive motion for reconsideration, and the order that denied Robert’s motion to reconsider was entered after the trial court’s jurisdiction was exhausted.

¶ 12. There are several dates that are important to this issue:

December 14, 2010 — The chancellor entered a final judgment of divorce.
December 21, 2010 — Vanessa filed a motion for reconsideration.
June 8, 2011 — The chancellor entered an order that granted Vanessa’s motion and modified the final judgment of divorce.
June 20, 2011 — Robert filed a motion for reconsideration and for findings of fact and conclusions of law.
September 29, 2011 — The chancellor entered an order that denied Robert’s motion for reconsideration.
October 20, 2011 — Robert filed his notice of appeal.

¶ 13. Vanessa argues that her motion for reconsideration (under Mississippi Rule of Civil Procedure. 59(a) and (e)) was timely because it was filed within ten days of the December 14, 2010 final judgment. The order on this motion was entered on June 8, 2011. In her brief, Vanessa claims that Robert’s motion was not allowed “as the law only allows one motion for reconsideration/new trial after a judgment is entered.” Yet, Vanessa does not cite any authority for this legal principle.

¶ 14. Vanessa reasons that the September 29, 2011 order that resulted from Robert’s motion for reconsideration (under Rule. 59(e)) and a motion for findings of fact and conclusions of law (under Mississippi Rule of Civil Procedure 52) should be vacated. Then, Vanessa’s brief claims that because the notice of appeal was not filed until October 20, 2011, “over four months after the June 8, 2011 Order, his notice was not timely.” Hence, she claims that this Court does not have jurisdiction to consider this appeal.

¶ 15. The Mississippi Rules of Civil Procedure do not provide for a motion for reconsideration. Nevertheless, motions for reconsideration are filed every day in Mississippi courts. Recently, in Woods v. Victory Marketing., LLC, 111 So.3d 1234, at 1236 (¶¶ 6-8) (Miss.Ct.App.2013), Judge Maxwell, writing for the court, succinctly addressed how courts should treat motions for reconsideration:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). M.R.C.P. 59, 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion. A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

(Citations omitted).

¶ 16. ? As much as we may like to impose a one-motion-for-reconsideration rule, there is simply no authority to impose such a limitation. Rather than file a motion for reconsideration, counsel would be wise to instead file a properly named motion under Rule 59 or 60.

¶ 17. Robert’s motion to reconsider was filed within ten days of the entry of the chancellor’s final order. As such, Robert’s motion falls under Rule 59 and tolled the thirty-day time period to file a notice of appeal until the disposition of the motion. The motion was disposed of by the chancellor’s order on September 29, 2011, and the notice of appeal was filed on October 20, 2011. Robert’s notice of appeal was timely filed.

¶ 18. This Court has jurisdiction to consider this appeal. Our review will encompass both the denial of reconsideration and the underlying judgment, which was the chancellor’s June 8, 2011 order that modified the final judgment.

2. Whether the chancellor erred when she failed to perform a Ferguson analysis.

¶ 19. Robert argues that the chancellor erred when she modified the original property distribution without a supplemental Ferguson analysis.

¶ 20. The division of marital assets is governed by Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The chancellor must first determine which assets are marital pursuant to Hemsley. Tynes v. Tynes, 860 So.2d 325, 328 (¶ 6) (Miss.App.2003). Then, considering each party’s nonmarital property, the chancellor equitably divides the marital property using the Ferguson factors as a guide. Id. In Ferguson, the supreme court outlined the factors for a chancellor to consider. Ferguson, 639 So.2d at 928.

¶ 21. The supreme court has held that when a chancellor divides marital property, he must follow the Ferguson factors and make factual findings as to their application. Lee v. Lee, 78 So.3d 826, 329 (¶ 10) (Miss.2012) (citations omitted). The court has noted it is not necessary to “make ‘findings as to each and every factor set forth in Ferguson[.]’ ” Id. (quoting Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)). Furthermore, the “failure to make an explicit factor-by-factor analysis does not necessarily require reversal where we are satisfied the chancellor considered the relevant facts.” Seghini v. Seghini, 42 So.3d 635, 641 (¶ 21) (Miss.Ct.App.2010) (citation omitted).

¶ 22. The question is whether the chancellor made adequate findings of fact when she divided the marital property. In Lee, the chancellor mentioned Ferguson in his ruling from the beneh, but he did not apply the factors or make factual findings and conclusions of law. Lee, 78 So.3d at 329 (¶ 11). Also, in the final divorce decree, the chancellor failed to mention Ferguson or apply its guidelines. Id. The Mississippi Supreme Court determined this constituted reversible error. Id. at 329-30 (¶14).

¶ 23. Here, we find that the chancellor failed to make adequate findings of fact in the division of marital property. The chancellor mentioned the Ferguson factors in her analysis but did not adequately consider or apply the factors when she made the award. In the order on the motion for reconsideration, the chancellor merely changed the words and offered no further analysis as to the Ferguson factors.

¶ 24. We find that the chancellor committed reversible error. We reverse the chancellor’s final judgment and modified order and remand this case for further proceedings consistent with this opinion.

3. Whether the chancellor erred when she failed to make specific findings of fact and conclusions of law.

¶25. The Court’s ruling above makes this issue moot. Nevertheless, we address it briefly. Robert argues that the chancellor was in error not to make specific findings of fact and conclusions of law, upon his Rule. 52(a) request. Rule 52(a) requires a chancellor to make written finding of fact upon request of a party. “Unless the evidence is overwhelming, it is reversible error for the trial court to refuse, upon request by a party to the litigation, to make specific findings of fact and separately state the conclusions of law on which its decision is based.” West v. West, 891 So.2d 203, 215 (¶35) (Miss.2004) (citation omitted).

¶ 26. The supreme court in Ferguson directed chancellors to “support their decisions with findings of fact and conclusions of law for purposes of appellate review.” Ferguson, 639 So.2d at 928. Here, the chancellor’s final judgment and order made no findings of fact or conclusions of law as to the chancellor’s consideration of the Ferguson factors.

¶ 27. Robert’s June 20, 2011 motion asked the chancellor for findings of fact and conclusions of law that supported the chancellor’s June 8, 2011 order that modified the final judgment of divorce. Rule 52(a) required the chancellor to provide such written findings of fact and conclusions of law. Only with such findings could this Court evaluate why Robert should be required to pay a portion of his retirement pay, that would be paid during his life, instead of the requirement to pay a benefit that would not be paid until his death.

¶ 28. Had we not reversed this case based on the previous section, we would have had to reverse and remand on this issue.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . "A motion for reconsideration requesting a change in the result of a bench trial has been deemed to be a motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e).” Street v. Street, 936 So.2d 1002, 1008 (¶ 15) (Miss.Ct.App.2006) (citing In re Estate of Stewart, 732 So.2d 255, 257 (¶ 8) (Miss.1999)).

      . For clarity, we note that the chancellor's order was entered on June 8, 2011. When the ten day period is computed, under M.R.C.P. 6(a), the tenth day fell on a Saturday. As a result, the motion was timely filed on Monday, June 20, 2011.


author: STUART, Justice. SHAW, Justice

text:
    Ex parte Kim THOMAS et al. (In re Albert Wilson et al. v. Kim Thomas et al.).
    1111294.
    Supreme Court of Alabama.
    Oct. 26, 2012.

      Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Anne Adams Hill, gen. counsel, and Scott L. Rouse, asst. atty. gen., Legal Division, Alabama Department of Corrections, for petitioners.
    Kimberly R. Dodson, Birmingham, for respondents.
   STUART, Justice.

The Alabama Department of Corrections (“ADOC”), the Alabama Corrections Institution Finance Authority (“ACIFA”), and Kim Thomas, in his official capacities as the commissioner of ADOC and as ex officio vice president of ACIFA, petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its May 17, 2012, order denying their motion seeking a partial summary judgment and to enter a new order granting the motion. We grant the petition as it relates to ADOC and Thomas in his capacity as commissioner and deny it as it relates to ACIFA and Thomas in his capacity as vice president.

I.

On August 17, 2010, Albert Wilson, Rufus Barnes, Joseph Danzey, Bryan Gavins, and Donald Simmons, all of whom are employed by ADOC as correctional officers (hereinafter referred to collectively as “the correctional officers”), sued ADOC and its then commissioner Richard Allen in the Barbour Circuit Court, alleging that ADOC was violating its own regulations and state law in the manner in which it: (1) compensated correctional officers for overtime; (2) restricted the way correctional officers were allowed to use earned leave; and (3) paid correctional officers the daily subsistence allowance provided by law. The plaintiffs also sought class certification on behalf of all other similarly situated correctional officers employed by ADOC and requested injunctive relief, as well as money damages, to include back-pay with interest, punitive damages, and litigation costs and expenses, including attorney fees.

On September 22, 2010, ADOC and Allen moved the trial court to dismiss the correctional officers’ claims for money damages, arguing that ADOC and Allen were entitled to State immunity under Article I, § 14, Ala. Const.1901. Before the trial court ruled on that motion, however, the correctional officers filed an amended complaint adding ACIFA as a defendant and asserting claims against Allen in his capacity as vice president of ACIFA as well. On December 21, 2010, the trial court entered an order denying ADOC and Allen’s September 22 motion to dismiss, without stating its rationale.

Thereafter, ADOC, ACIFA, and Allen filed an answer to the correctional officers’ amended complaint. On March 3, 2011, ADOC, ACIFA, and Thomas, who succeeded Allen as commissioner of ADOC and vice president of ACIFA on January 17, 2011, moved the trial court to transfer the action to the Montgomery Circuit Court pursuant to § 6-3-9, Ala. Code 1975, which provides that “if, on the trial of any case in any county, it is suggested by the Board of Corrections or is otherwise shown that the state is interested on account of the prison system, such case must be transferred to the proper court of Montgomery County.” See also Ex parte Daniels, 941 So.2d 251, 258 (Ala.2006) (holding that the State does not waive its right to transfer a case to Montgomery County pursuant to § 6-3-9 even if venue is not challenged within the time prescribed by Rule 12(h)(1), Ala. R. Civ. P.). On or about May 24, 2011, the Barbour Circuit Court granted the motion, and the case was transferred to the Montgomery Circuit Court.

The trial court thereafter approved class certification for the action, and, on April 17, 2012, ADOC, ACIFA, and Thomas moved the trial court to enter a partial summary judgment in their favor, arguing that the correctional officers’ claims seeking money damages from ADOC were barred by the doctrine of State immunity and that the claims against ACIFA had no factual or legal basis. The correctional officers filed a response, arguing that the summary-judgment motion was without merit and that, in any event, the Barbour Circuit Court had already rejected the State-immunity argument before the case was transferred to the Montgomery Circuit Court. On May 17, 2012, the trial court conducted a hearing on the summary-judgment motion and, later that day, entered an order denying the motion without stating its rationale. ADOC, ACIFA, and Thomas now petition this Court for a writ of mandamus directing the trial court to vacate its order denying their summary-judgment motion and to enter an order granting the same.

II.

“Mandamus is an extraordinary writ and will be issued ‘ “only when there is: (1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.” ’ Ex parte Land, 775 So.2d 847, 850 (Ala.2000) (quoting Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)). When we consider a mandamus petition, the scope of our review is to determine whether the trial court clearly exceeded its discretion. Ex parte Tegner, 682 So.2d 396 (Ala.1996).”

State v. Bui, 888 So.2d 1227, 1229 (Ala.2004). We further note this Court’s general rule that we will not review the denial of a motion for a summary judgment on a petition for the writ of mandamus because an adequate remedy exists by way of an appeal. Ex parte Par Pharm., Inc., 58 So.3d 767, 775-76 (Ala.2010). However, an exception to that general rule is “that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citing Ex parte Purvis, 689 So.2d 794 (Ala.1996)). In the instant case, ADOC and Thomas moved for a summary judgment on the claims for money damages asserted against ADOC and Thomas in his capacity as commissioner of ADOC on State-immunity grounds; thus, review of the trial court’s denial of their motion seeking a summary judgment on those claims is available by a petition for a writ of mandamus.

However, ACIFA and Thomas have not argued that they are entitled to State immunity on the claims asserted against ACIFA and against Thomas in his capacity as vice president of ACIFA; rather, they argue that they are entitled to a summary judgment because “they have no connection whatsoever to the [correctional officers’] claims” because ACIFA has no role in personnel or payroll matters affecting ADOC employees. They assert that ACIFA exists solely to facilitate the finance and acquisition of land, institutions, and facilities for ADOC, and they argue that the lack of any connection between the correctional officers’ claims and ACI-FA effectively renders those claims non-justiciable; therefore, review of the trial court’s denial of their summary-judgment motion on a petition for the writ of mandamus is available because, they argue, the issue of subject-matter jurisdiction has been raised. See University of South Alabama Med. Ctr. v. Mobile Infirmary Ass’n, 89 So.3d 735, 740-41 (Ala.2011) (stating that justiciability is jurisdictional), and Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000) (holding that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus).

We disagree, however, that a justiciability issue has been raised. “ ‘Concepts of justiciability have been developed to identify appropriate occasions for judicial action .... The central concepts often are elaborated into more specific categories of justi-ciability — advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions.’ ” Black’s Law Dictionary 943^44 (9th ed.2009) (quoting 13 Charles Alan Wright et al., Federal Practice & Procedure § 3529, at 278-79 (2d ed.1984)). Indeed, this Court has recognized the above-cited specific categories of justicia-bility in previous cases. See, e.g., University of South Alabama Med. Ctr., 89 So.3d at 741-42 (dismissing appeal where there was no actual controversy between parties whose legal interests were adverse and where appeal sought merely an advisory opinion); Fenn v. Ozark City Sch. Bd. of Educ., 9 So.3d 484, 486 (Ala.2008) (“ ‘Chief among these elements [composing the concept of justiciability] is the requirement that a plaintiff have “standing to invoke the power of the court in his behalf.” Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990).’ ” (quoting Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998))); Ex parte Riley, 11 So.3d 801, 806 (Ala.2008) (“Alabama cases often address ripeness in the context of whether a case is justiciable, or appropriate for judicial review.”); Town of Elmore v. Town of Coosada, 957 So.2d 1096, 1100 (Ala.2006) (“Because mootness goes to justiciability, this Court will not consider the merits of a claim that is moot.”); and Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 221 (Ala.2005) (declining to consider “nonjusticiable political question” involving the legislature’s voting procedures).

In this case, however, ACIFA and Thomas are essentially arguing that the correctional officers’ claims against ACI-FA have no basis because, they claim, ACIFA has nothing to do with the manner in which correctional officers are compensated or the funds with which they are compensated. This argument goes to the merits of the correctional officers’ claims, and, regardless of whatever merit the argument might have, it does not raise a justiciability issue. The trial court’s denial of the motion for a summary judgment as to ACIFA and Thomas in his capacity as vice president of ACIFA is accordingly not subject to mandamus review. See Ex parte Alabama State Bd. of Chiropractic Exam’rs, 11 So.3d 221, 226-27 (Ala.Civ.App.2007) (declining to address petitioners’ argument that they were entitled to a writ of mandamus on the ground that the plaintiffs’ claims had no merit). Thus, we review only ADOC and Thomas’s argument that the correctional officers’ claims against them for money damages are barred by principles of State immunity.

III.

We explained the doctrine of State immunity as it applies to State agencies and State officials, including specifically the commissioner of ADOC, as follows in Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004):

“Section 14, Ala. Const.1901, provides ‘[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.’ This section affords the State and its agencies an ‘absolute’ immunity from suit in any court. Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (stating that Ala. Const.1901, § 14, confers on the State of Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (‘Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state-’). Indeed, this Court has described § 14 as an ‘almost invincible’ ‘wall’ of immunity. Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). This ‘wall of immunity5 is ‘nearly impregnable,’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), and bars ‘almost every conceivable type of suit.’ Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Moreover, if an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ Patterson, 835 So.2d at 142-43.
“Section 14 prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992). ‘In determining whether an action against a state officer or employee is, in fact, one against the State, [a] [cjourt will consider such factors as the nature of the action and the relief sought.’ Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). Such factors include whether ‘a result favorable to the plaintiff would directly affect a contract or property right of the State,’ Mitchell, 598 So.2d at 806, whether the defendant is simply a ‘conduit’ through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala.1988), and whether ‘a judgment against the officer would directly affect the financial status of the State treasury,’ Lyons, 858 So.2d at 261. Moreover, we note that claims against state officers in their official capacity are ‘functionally equivalent’ to claims against the entity they represent. Hinson v. Holt, 776 So.2d 804, 810 (Ala.Civ.App.1998); see also McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (noting that a suit against a governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir.1992) (holding that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent). In this case, the commissioner represents [A]DOC, which, as a department of the State, is entitled to sovereign immunity. Rodgers v. Hopper, 768 So.2d 963, 968 (Ala.2000) (holding that [A]DOC is entitled to sovereign immunity under § 14, because a judgment against it would be paid from the treasury of the State).”

Thus, ADOC and Thomas, in his capacity as commissioner of ADOC, are generally entitled to rely on the shield of State immunity provided by § 14. Moreover, this Court has further held that claims against ADOC seeking compensatory damages— including specifically backpay — are barred by § 14:

“In general, the State is immune from any lawsuit that would directly affect a contract or property right of the State or result in the plaintiffs recovery of money from the State. See [Alabama Agric. & Mech. Univ. v.] Jones, 895 So.2d [867,] 873 [ (Ala.2004) ]. A claim for backpay is a claim for compensatory damages. 895 So.2d at 875-76 (holding that the doctrine of sovereign immunity bars claims for retrospective relief and backpay against a state university based on a breach of an employment contract); Vaughan v. Sibley, 709 So.2d 482, 486 (Ala.Civ.App.1997). The doctrine of sovereign immunity thus bars an action seeking backpay. Jones, 895 So.2d at 876; Vaughan, 709 So.2d at 486. Therefore, the trial court did not err in entering a summary judgment dismissing [the appellant’s] claims for back wages and compensatory damages, which are barred by Art. I, § 14, of the Alabama Constitution of 1901.”

Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005).

Nevertheless, citing Drummond Co. v. Alabama Department of Transportation, 937 So.2d 56, 58 (Ala.2006), the correctional officers argue that ADOC and Thomas are not entitled to State immunity because, they argue, Thomas’s actions have been and continue to be willful, malicious, fraudulent, in bad faith, and based on a mistaken interpretation of the law. This Court did recognize in Drummond that ‘“actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law”’ are not prohibited by § 14. Drummond, 937 So.2d at 58 (quoting Ex parte Carter, 395 So.2d 65, 68 (Ala.1980)). However, in Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 840 (Ala.2008), we further explained the “exceptions” to State immunity discussed in Drummond, and our holding in Harbert International makes clear that the “exception” the correctional officers now seek to rely upon is not applicable in this case:

“These actions [against the State that are not barred by § 14 and that are discussed in Drummond ] are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘“[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Meek Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones ).”

In this case, the correctional officers do seek money damages from the State; thus, the relied-upon “exception” in Drummond does not apply, and their claims against Thomas are barred by § 14. Moreover, we note that ADOC would still be entitled to State immunity even if the correctional officers’ claims against Thomas were permitted by Drummond because “these ‘exceptions’ to [State] immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies.” Ex parte Alabama Dep’t of Fin., 991 So.2d 1254, 1257 (Ala.2008). Thus, ADOC and Thomas, in his capacity as commissioner of ADOC, are entitled to State immunity, and the trial court accordingly erred in failing to grant their motion for a summary judgment on the claims asserted against them seeking money damages.

IV.

ADOC, ACIFA, and Thomas petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying their motion seeking a summary judgment on the correctional officers’ claims for money damages and to enter an order granting the motion. Because ADOC and Thomas, in his official capacity as commissioner of ADOC, are entitled to State immunity on those claims, we grant the petition as to ADOC and Thomas, in his capacity as commissioner of ADOC, and issue the writ. However, ACIFA and Thomas, in his official capacity as vice president of ACIFA, have not argued that they are entitled to State immunity on the claims asserted against them; rather, they argue simply that those claims lack merit. That argument presents an insufficient basis upon which to issue a writ of mandamus, and we therefore deny the petition with regard to those claims because ACI-FA and Thomas have an adequate remedy on appeal.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

WOODALL, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., concur specially.

MALONE, C.J., recuses himself.

SHAW, Justice

(concurring specially).

I concur in the holding in the main opinion that the Alabama Corrections Institution Finance Authority (“ACIFA”) and Kim Thomas, in his capacity as ex officio vice president of ACIFA, are not entitled to mandamus relief. I further agree that the Alabama Department of Corrections (“ADOC”) and Thomas, in his official capacity as the commissioner of ADOC, are both clearly entitled to State immunity under Ala. Const.1901, § 14, as explained in Haley v. Barbour County, 885 So.2d 788 (Ala.2004), and Latham v. Department of Corrections, 927 So.2d 815 (Ala.2005).

This Court’s decision in Drummond Co. v. Alabama Department of Transportation, 937 So.2d 56 (Ala.2006), notes several types of actions that are not barred by § 14; these actions are sometimes referred to as “exceptions” to § 14 immunity. One such “exception” involves “ ‘actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.’ ” Drummond, 987 So.2d at 58 (quoting Ex parte Carter, 395 So.2d 65, 68 (Ala.1980)). This “exception” is cited by the correctional officers as support for allowing the instant action to continue against ADOC and Thomas, as its commissioner. However, this “exception,” on its face, would apply only to Thomas, as a State official, and not ADOC, which is a State agency. Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 841 (Ala.2008) (holding “that only State officers named in their official capacity — and not State agencies — may be defendants” in proceedings falling under the “exceptions” discussed in Drum-mond ). Moreover, as this Court noted in Harbert, the so-called “exceptions” to § 14 immunity are not actually exceptions and are nonetheless limited:

“These actions [discussed in Drum-mond] are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions “‘against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘“[a]n action is one against the [Sjtate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).”

Harbert, 990 So.2d at 840. The correctional officers in this case seek recovery of money from the State. Therefore, the Drummond “exception” the correctional officers cite does not apply in the action against Thomas in his official capacity as the commissioner of ADOC.

I note that, although the “exception” in Drummond the correctional officers seek to apply states that “actions for ... damages” may be pursued, such “actions” refer to only certain limited actions “against State officials ... individually ...,” because actions for damages against officials in their “representative” or official capacities are actually actions seeking to recover money from the State and are, thus, barred. Burgoon v. Alabama Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002) (“A suit against a State agency, or against State agents in their official capacities, is a suit against the State.”). Even those actions against State officials in their individual capacities, however, may still be barred by § 14, Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989) (“State officers and employees, in their [individual capacities,] ... are absolutely immune from suit when the action is, in effect, one against the State.”), or by State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000).

MURDOCK, J., concurs.

      . Pursuant to Rule 25(d), Ala. R. Civ. P., Thomas was automatically substituted as a defendant in place of Allen when he succeeded Allen as commissioner of ADOC on January 17, 2011.

      . The correctional officers also repeatedly emphasize that, in December 2010, the Barbour Circuit Court denied an initial motion to dismiss this case based on State-immunity grounds and that ADOC and Thomas failed to file a petition for the writ of mandamus at that time; however, to the extent they are arguing that ADOC and Thomas waived their right to claim State immunity based on that failure, their argument is without merit. An action against the State within the meaning of § 14 "presents a question of subject-matter jurisdiction, which cannot be waived....” Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002).

      . In their response to ADOC, ACIFA, and Thomas’s petition for the writ of mandamus, the correctional officers also devote several pages to arguing that the petitioners are not entitled to State-agent immunity and that ACI-FA is not entitled to State immunity. However, none of the petitioners have asserted State-agent immunity, and a discussion of Ex parte Cranman, 792 So.2d 392 (Ala.2000), in which this Court restated the doctrine of State-agent immunity, and its progeny is therefore not necessary. Likewise, ACIFA has not argued that it is entitled to State immunity, conceding that this Court already decided that issue in Rodgers v. Hopper, 768 So.2d 963, 967 (Ala.2000) ("[W]e conclude that ACIFA and, derivatively, its officials are not entitled to [State] immunity.”).


author: PER CURIAM. MURDOCK, Justice

text:
    SOUTHEAST CONSTRUCTION, L.L.C. v. WAR CONSTRUCTION, INC. Ex parte WAR Construction, Inc. (In re WAR Construction, Inc. v. Southeast Construction, L.L.C., et al.).
    1101050 and 1101137.
    Supreme Court of Alabama.
    Nov. 9, 2012.

      James A. Harris, Jr., and Clyde “Tres” O’Neal Westbrook III of Harris & Harris, LLC, Birmingham, for appellant/respondent Southeast Construction, L.L.C.
    G. Scott Frazier, Tuscaloosa, for appel-lee/petitioner WAR Construction, Inc.
   PER CURIAM.

Southeast Construction, L.L.C. (“SEC”), appeals from the entry by the Tuscaloosa Circuit Court of judgment on an arbitration award. WAR Construction, Inc. (‘WAR”), has filed a cross-appeal — which we treat as a petition for a writ of mandamus — challenging the circuit court’s refusal to enforce the judgment.

I. Facts and Procedural History

On July 12, 2007, SEC and WAR entered into a construction contract pursuant to which WAR, as the general contractor, agreed to build a condominium development in Tuscaloosa known as The Chimes Condominiums (“The Chimes”) for SEC, as owner. Upon completion of the project, disputes arose between SEC and WAR concerning performance under the construction contract. Pursuant to the contract, those disputes were submitted to binding arbitration in accordance with the rules of the American Arbitration Association. On February 17, 2009, WAR filed a complaint in the Tuscaloosa Circuit Court against SEC seeking damages for breach of contract and work and labor performed and enforcement of a mechanic’s and mate-rialman’s hen on The Chimes. The circuit court stayed the action pending the arbitration proceeding between the two parties.

On February 16, 2011, a three-arbitrator panel ruled in favor of both SEC and WAR on their respective claims against one another, resulting in a net award to WAR of $373,929. SEC filed a motion for modification of the award. The arbitration panel issued a modified award on March 16, 2011, in which it stated that the net award to WAR was to be paid by SEC

“upon [SEC’s] receipt of reasonably appropriate and adequate releases of liens and claims against [SEC], its surety and the project involved in this proceeding from [WAR] and all of [WAR’s] subcontractors/suppliers that filed a lien on the project; provided that, in lieu of a release from such subcontractor/supplier, [WAR] may provide an adequate bond or other adequate security. This shall occur no later than May 13, 2011.”

Neither party filed an appeal of the award pursuant to Rule 71B, Ala. R. Civ. P., within 30 days of service of notice of the modified arbitration award.

On April 22, 2011, WAR filed in the Tuscaloosa Circuit Court a “Motion for Clerk’s Entry of Arbitration Award as Final Judgment” pursuant to Rule 71C, Ala. R. Civ. P. WAR attached a copy of the original arbitration award and the modified award to its motion. On April 25, 2011, SEC filed a response in opposition to WAR’S motion in which it stated that WAR had not fulfilled its obligation of providing SEC with releases of liens and claims held by WAR and by subcontractors on The Chimes construction project.

On April 27, 2011, the circuit court entered an order in which it declined to have the award entered as a judgment at that time. The order explained:

“After a further review of the materials, it appears the awards are not ready for enforcement under Rule 71C for two reasons. First, enforcement of a portion of the award is subject to a time frame that has not yet occurred, i.e., May 13, 2011. Second, and most importantly, the arbitrators used language in crafting the award that is subject to interpretation and dispute, e.g., ‘reasonably appropriate’ and ‘adequate’ releases, ‘adequate’ bond or other security. If the court used such language in a judgment (as contrasted to language used by parties in settlement negotiations), it is likely that an appellate court would hold that a final judgment has not been entered. Likewise by analogy, it is not clear whether there is even a final award that would support an appeal from the arbitration awards based on the language used. Since the parties chose to remove the case from the judicial process by their agreement and subject it to resolution in an alternative forum, it will be the responsibility of the arbitrators to rule on what is ‘reasonably adequate’ or ‘appropriate’ as expressed in their own order if the parties do not agree.”

On April 29, 2011, WAR filed a “Motion for Emergency Hearing” in which it contended that the award “complies with the requirements to constitute a ‘final award’ for purposes of entering a judgment” and that Rule 71C, Ala. R. Civ. P., required the circuit court to immediately enter the award as a judgment. In its motion, WAR made a distinction between “[t]he entry of judgment by the clerk” and “the subsequent enforcement of judgment.” WAR also “acknowledge^] that SEC is entitled to the lien releases as required by the award” and confirmed that it had not yet provided SEC with a release of its lien. WAR explained that it did “not want to release its lien or SEC’s surety bond until payment of the monetary award is secured. Otherwise, WAR loses its security ensuring payment.” To that end, WAR requested that the circuit court, if necessary, “enter an order to modify and correct the award, so as to effect the intent thereof and promote justice between the parties.” WAR cited 9 U.S.C. § 11(c) of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), as authority for the circuit court to modify the award so that WAR would not be forced to provide a release of its lien before SEC paid the amount due WAR pursuant to the award.

SEC filed a response in opposition to WAR’S motion in which it argued that “Rule 71C[, Ala. R. Civ, P.,] applies only to the enforcement of final arbitration awards” and that, because “the arbitrators’ ‘award’ is contingent,” it is “not ready for enforcement under Rule 71C.” SEC contended that WAR’S motion amounted to asking the circuit court “to relieve WAR of its obligations under the ‘award’ and only enforce SEC’s contingent obligations.” It also denied that the circuit court had the authority under § 11 of the FAA to modify the arbitration award in the manner requested by WAR.

Notwithstanding its order of April 27, 2011, on May 9, 2011, following a hearing, the circuit court did enter an order based upon the arbitration award. That order states:

“1. The documents from the arbitrators dated February 16, 2011 and March 16, 2011 are the awards. The Clerk is directed to enter the two documents from the arbitrators as a judgment under Rule 71(C)(f). Since the arbitrators did not address the issues, circuit court costs should be taxed as paid.
“2. The court and clerk are available to enforce the award if it is capable of enforcement through non-discretionary, perfunctory, ministerial acts such as garnishment, execution or other writ as provided in Ala.Code [1975,] § 6-6-13. “3. Any issue regarding interpretation, modification, clarification or amendment of the awards should be presented to the arbitrators.
“4. If a certificate of judgment is requested under Ala.Code [1975,] § 6-9-210, the Clerk would need to determine whether such a request complies with the language of the arbitrators’ awards. No certificate of judgment should be prepared unless it complies with the arbitrators’ awards.
“The April 27 order is modified as noted above. All other claims are denied.”

On May 13, 2011, WAR filed what it styled as a “Notice of WAR’s Compliance with the Conditions of Judgment.” In the filing, WAR explained that it had supplied SEC with releases of all liens filed by subcontractors. As to its own lien, WAR again represented that it “does not want to jeopardize its security for the judgment without adequate assurance SEC is going to pay the judgment.” Thus, WAR attached copies of a signed satisfaction of the judgment and a signed release of WAR’s lien to its filing with the circuit court. WAR proposed that SEC “submit payment in full of the judgment” to WAR’s attorney, the payment to be held in the attorney’s trust account. After payment had been submitted, WAR’s attorney would file the original signed satisfaction of the judgment with the circuit clerk, and he would file the original signed release of the lien in the Tuscaloosa Probate Court. WAR stated that its attorney would not release SEC’s funds to WAR until the release and the satisfaction of the judgment had been filed.

SEC responded by filing a “Notice of WAR’s Noneompliance with Conditions of Judgment.” In that filing, SEC contended that WAR had not supplied SEC with releases of claims by two subcontractors— Premier Electric Service Company, Inc., or Laco Woodworks, Inc. It also noted that WAR had admitted that it still had not provided SEC with a release of its own lien.

The circuit court scheduled a hearing on the parties’ filings that was initially set for June 2, 2011, but the hearing was continued to a later unspecified date.

On June 7, 2011, SEC appealed from the circuit court’s May 9, 2011, order, arguing that the circuit court erred in entering a judgment on the arbitration award before WAR had fulfilled its obligations under the award. Subsequently, WAR filed a cross-appeal, complaining that the circuit court had failed to take any nonministerial actions to enforce the judgment. As noted at the outset of this opinion, we treat WAR’s cross-appeal as a petition for a writ of mandamus.

On July 21, 2011, WAR filed a motion to dismiss SEC’s appeal. In the motion, WAR contended that this Court lacked jurisdiction to entertain SEC’s appeal “[b]ecause SEC did not file a Rule 71B[, Ala. R. Civ. P.,] notice of appeal,” because “[t]he entry by the circuit clerk of the arbitration award as the final judgment of the court in accordance with Rule 71C[, Ala. R. Civ. P.,] is not a final appealable judgment,” and because there remain “unresolved questions of fact and law” before the circuit court. On November 18, 2011, this Court denied WAR’s motion to dismiss SEC’s appeal.

II. Analysis

A. Jurisdiction Over the Appeal and the Mandamus Petition

At the outset, WAR contends, as it did in its motion to dismiss, that SEC waived its right to appeal because it did not follow the procedure specified in Rule 71B, Ala. R. Civ. P., to obtain appellate review of an arbitration award. Conversely, WAR insists that its own failure to appeal in accordance with Rule 71B, Ala. R. Civ. P., does not foreclose its petition to this Court.

An appeal in accordance with Rule 71B concerns an “appeal from the award entered as a result of the arbitration.” Rule 71B(a), Ala. R. Civ. P. This Court has noted that “[a] party seeking review of an arbitration award is required to file a motion to vacate during this period — while the judgment entered by the circuit clerk remains conditional — in order to preserve its ability to later prosecute that appeal to an appellate court once the judgment becomes final.” Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 (Ala.2008) (first emphasis added). In the course of making its argument, WAR states that “SEC waived its right to judicial review of the merits of the arbitration award because SEC did not file a Rule 71B. appeal.” (Emphasis added.)

The problem with WAR’S argument that SEC waived its right to appeal is that SEC is not challenging the merits of the arbitration award. The first paragraph of the court’s May 9, 2011, order states that the award made by the arbitration panel was to be entered by the clerk of the court as a judgment pursuant to Rule 71C, which provides for the entry of a judgment of an arbitration award when there has not been a challenge to the merits of that award under Rule 71B.

Moreover, what SEC challenges in its appeal is merely the manner in which the circuit court sought in its May 9, 2011, order to implement and enforce the judgment, the entry of which it was simultaneously ordering. The procedure detailed in Rule 71B, Ala. R. Civ. P., is not applicable to such an order.

In its petition to this Court, WAR takes issue with the circuit court’s “refus[al] to take any non-ministerial, non-perfunctory act to enforce the arbitration award. WAR agrees with SEC that “the underlying arbitration award [is] not ambiguous. WAR asks this Court “to instruct the circuit court that it has both the authority and obligation to enforce its judgment and, if necessary, to construe the award to effectuate the intent thereof and promote justice between the parties.”

To the extent that WAR’S petition does not request this Court to direct the circuit court to modify the substance of the arbitration award, that petition likewise is not barred by WAR’S failure to file a Rule 71B appeal.

B. Merits of SEC’s Appeal and WAR’s Petition

SEC argues that the circuit court’s May 9, 2011, order did not give effect to the arbitrators’ decision. We see nothing in that order to support SEC’s position. To the contrary, paragraph 1 of the order explicitly provides for the clerk of the court “to enter the two documents from the arbitrators as a judgment under Rule 71C(f).” As is the case with any judgment, paragraph 2 states that “[t]he court and clerk are available to enforce the award if it is capable of enforcement through non-discretionary, perfunctory ministerial acts such as garnishment, execution or other writ.”

The final judgment the court ordered the clerk to enter based upon the arbitrators’ decision is one that adjudicates the rights and responsibilities of the parties. Accordingly, it is enforceable as a final judgment. In essence, it is a final judgment that requires certain acts of both parties. As such, it contemplates further enforcement, and perhaps interpretative acts, by the circuit court. This, however, does not make it a nonfinal judgment.

WAR contends that the circuit court is required to give effect to the arbitrators’ award, citing Smallwood v. Holiday Development, LLC, 38 So.3d 718, 721 (Ala.2009). As WAR also contends, circuit courts have inherent authority to interpret and clarify their own judgments. State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000). See also Helms v. Helms’ Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994) (noting that “a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment”); Gild v. Holmes, 680 So.2d 326, 329 (Ala.Civ.App.1996) (“A trial court possesses an inherent power over its own judgments that authorizes it to interpret, clarify, implement, or enforce those judgments.”).

WAR also argues, with merit, as follows:

“To the extent that the circuit court is deterred by ambiguities in the arbitration award that constitutes its judgment, this Court has given straightforward direction. In [State Personnel Board v.] Akers, 797 So.2d [422] at 424, 425 [ (Ala.2000) ], this Court stated as follows:
“ ‘Courts are to construe judgments as they construe written contracts, applying the same rules of construction they apply to written contracts. See Hanson v. Hearn, 521 So.2d 953, 954 (Ala.1988). Whether a judgment is ambiguous is a question of law to be determined by the court. See Chapman v. Chapman, 634 So.2d 1024, 1025 (Ala.Civ.App.1994); Grizzell v. Grizzell, 583 So.2d 1349, 1350 (Ala.Civ.App.1991). If the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their “legal effect must be declared in the light of the literal meaning of the language used” in the judgment. Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970); see Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991). However, if a term in a trial court’s judgment is ambiguous, then the trial court’s interpretation of that term “is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous.” Chapman, 634 So.2d at 1025.’ ”

Given the nature of the award made by the arbitrators in this case and the nature of the resulting judgment the circuit court properly ordered the clerk to enter, it is apparent that the circuit court must take some additional responsibility for enforcing that award and the resulting judgment. To the extent WAR complains in its petition of the circuit court’s reluctance to do so, we agree with WAR and, accordingly, order the circuit court to take appropriate action to enforce the judgment it has entered based upon the arbitrators’ award.

1101050 — AFFIRMED.

1101137 — PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ„ concur.

MURDOCK, J., concurs specially.

MALONE, C.J., recuses himself.

MURDOCK, Justice

(concurring specially).

The main opinion states that, “[gjiven the nature of the award made by the arbitrators in this case and the nature of the resulting judgment the circuit court properly ordered the clerk to enter, it is apparent that the circuit court must take some additional responsibility for enforcing that award and the resulting judgment.” 110 So.3d at 377-78. By way of example, the circuit court might well find it appropriate to coordinate the parties’ fulfillment of the arbitration award and judgment entered on that award by requiring the parties to deposit releases or bonds and to make payment into the circuit court, with the provision that such documents and payment will be held by the court pending performance by the other party of its obligation under the judgment.

      . Rule 71B provides, in pertinent part:
      "(a) Who may appeal. Any party to an arbitration may file a notice of appeal from the award entered as a result of the arbitration.
      "(b) When filed. The notice of appeal shall be filed within thirty (30) days after service of notice of the arbitration award. Failure to file within thirty (30) days shall constitute a waiver of the right to review.

      "(f) Procedure after filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala. Code 1975, § 6-6-14, or other applicable law. The court shall not grant any such motion until a reasonable time after all parties are served pursuant to paragraph (e) of this rule. The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions.
      "(g) Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, Alabama Rules of Appellate Procedure.”

      . Rule 71C provides, in pertinent part:
      "(a) Who may enforce. Any party to an arbitration may seek enforcement of the award entered as a result of the arbitration.
      "(b) When filed. If no appeal has been filed pursuant to Rule 71B within thirty (30) days of service of the notice of the award, thereby resulting in a waiver of the right to review, the party seeking enforcement of the award may at any time thereafter seek enforcement of the award in the appropriate circuit court as set forth in paragraph (c) of this rule.
      "(c) Where filed. The motion for entry of judgment shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
      "(d) What filed. A party seeking enforcement of an award shall file a motion for entry of judgment, and shall attach to the motion a copy of the award, signed by the arbitrator, if there is only one, or by a majority of the arbitrators.

      "(f) Procedure after filing. The clerk promptly shall enter the award as the final judgment of the court. After service pursuant to paragraph (e) of this rule, the prevailing party may seek execution on the judgment as in any other case.”

      . Section 11 of the FAA provides:
      "In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration—
      "(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
      "(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
      "(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
      "The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties."

      (Emphasis added.)

      . "Rules 71B and 71C, Ala. R. Civ. P., were adopted, Rule 4(e), Ala. R.App. P., was adopted, and Rule 4(a)(1), Ala. R.App. P., was amended, all effective February 1, 2009, in response to Horton Homes, to clarify the procedure for taking an appeal from an arbitrator's award.” Ace Title Loan, Inc. v. Crump, 14 So.3d 94, 97 n. 3 (Ala.2009).

      . "A final judgment is an order 'that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990).” Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994). The determination whether a judgment is final does not depend on the title of the order; "rather, the test of a judgment's finality is whether it sufficiently ascertains and declares the rights of the parties." Ex parte DCH Reg'l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990) (emphasis added) (citing McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973)). In McCulloch, the Court explained as follows:
      "In Ex parte Elyton Land Co., 104 Ala. 88, 91, 15 So. 939 (1893), this court held that:
      " '... The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings necessary to entitle the parties to the full measure of the rights it has been declared they have; but whether the decree which has been rendered, ascertains and declares these rights — if these are ascertained and adjudged, the decree is final, and will support an appeal....' ”
      290 Ala. at 305, 276 So.2d at 426 (emphasis added).


author: PER CURIAM.

text:
    Ex parte Kelly COUEY. (In re Joshua Couey v. Kelly Couey).
    2111208.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.

      Melvin Hasting, Cullman, for petitioner.
    Neal P. Conner, Guntersville, for respondent Joshua Couey.
    Judge Sherrie W. Paler, Decatur, as respondent.
   PER CURIAM.

Kelly Couey (“the mother”) petitions this court for a writ of mandamus directing the Morgan Circuit Court (“the trial court”) to set aside an ex parte custody order that awarded pendente lite custody of the parties’ two children to Joshua Couey (“the father”). We grant the petition and issue the writ.

The materials attached to the mother’s petition reveal that the father and the mother were divorced by the trial court in February 2012. Pursuant to an agreement of the parties that was incorporated into the divorce judgment, the parties were awarded joint legal custody of their two children, and the mother was awarded primary physical custody of the children. On August 27, 2012, the father filed a verified custody-modification petition seeking, among other things, “emergency” temporary custody of the children, who were ages 12 and 9 years old at the time; the copy of the father’s custody-modification petition included in the materials before this court does not contain a certificate of service reflecting that the mother was served with a copy of the petition. In his petition seeking custody, the father alleged that the mother had been acting irrationally and engaging in threatening conduct that had led him to call law enforcement on three occasions; that the mother had been intoxicated over the Memorial Day weekend and that she had come to his residence and had threatened to drive away with the children in her intoxicated state; and that, on the same weekend, the mother called the parties’ older child and told him “bye, I won’t ever see you again.' I am going to take pills and end it all.” The father further alleged that the mother had told the children that she had purchased a “pink handgun,” despite the fact that, according to the father, the mother had no need for a handgun and had no training in how to use the handgun. The father further complained that the mother had made harassing telephone calls, that she had insisted that the father not have female guests at his home while the children were present, and that she had threatened at least one female guest at his home. Finally, the father alleged that the mother would not “let the children play outside because of conflicts with neighbors” and that the mother had difficulty controlling or disciplining the children, resulting in her having telephoned him to request that he come to her residence to “make them mind.”

In response to the father’s, petition, the trial court entered an ex parte pendente lite custody order on August 31, 2012, in which it awarded the father “full” custody of the children, awarded the mother only supervised visitation, and permitted the father to determine the “time, place, and circumstances” under which the mother’s visitation was to occur. The trial court set the case for a hearing on November 13, 2012.

The mother filed a timely petition for a writ on mandamus in this court, and she seeks an order directing the trial court to set aside the ex parte custody order. Our standard of review in such cases was set forth in Ex parte Norlander, 90 So.3d 183 (Ala.Civ.App.2012), as follows:

“ ‘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 properly invoked jurisdiction of the court.’ ”

Id. at 185 (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

The mother argues that the allegations in the father’s custody-modification petition are insufficient to deprive her of her right to notice and the opportunity to be heard before being deprived of the custody of her children. She relies on this court’s recent decision in Ex parte Norlander, supra. In Norlander, the trial court granted the father’s request for immediate custody of the parties’ child. Id. at 184. The mother filed a petition for the writ of mandamus with this court, seeking to set aside the trial court’s order. Id. at 185. In determining that the writ should be issued, we discussed our supreme court’s decision in Ex parte Williams, 474 So.2d 707, 710 (Ala.1985), as follows:

“In Ex parte Williams, ... our supreme court held that ‘a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice under Rules 4 and 5, [Ala.] R. Civ. P., and an opportunity to be heard.’ The only exception to that rule is a situation in which ‘the actual health and physical well-being of the child are in danger.’ Id. (emphasis omitted; quoting Thorne v. Thorne, 344 So.2d 165, 171 (Ala.Civ.App.1977)). See also Ex parte Franks, 7 So.3d 391 (Ala.Civ.App.2008), and Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005).”

Ex parte Norlander, 90 So.3d at 185.

The allegations against the mother in this case are that she had been intoxicated and had threatened to drive off with the children on Memorial Day weekend, that she had told the older child that she intended to commit suicide, that she had purchased a “pink handgun,” that she had insisted that the father not have female guests when the children are at his home, that she had threatened at least one female guest, that she had made harassing telephone calls, that she had refused to allow the children to play outside, and that she had difficulty controlling or disciplining the children. The mother argues that none of the allegations made in the father’s custody petition rise to the level sufficient to support an ex parte custody award. We agree. Although some of the mother’s conduct could certainly be described as inappropriate or inconsistent with acting in the best interest of the children, the father’s allegations, considered independently and as a whole, do not rise to a level that would support a conclusion that the actual health and physical well-being of the children have been impacted by the mother’s behavior such that the mother was not entitled to be afforded notice and an opportunity to be heard before the children were removed from her custody.

We note that the most serious allegation the father made against the mother, i.e., her attempt to drive the children in her vehicle while she was intoxicated, occurred approximately three months before the father filed his petition for custody. In previous cases, including Norlander, 90 So.3d at 185-86, and Ex parte Russell, 911 So.2d 719, 723 (Ala.Civ.App.2005), this court has considered the length of time between the act or behavior of a custodial parent that allegedly placed the children’s actual health and physical well-being in danger and the date that the noncustodial parent requested ex parte custody of the child based on the custodial parent’s behavior as an indicator of whether there was an emergency that would merit removing a child from the custodial parent’s custody without providing the custodial parent with notice and an opportunity to be heard. The fact that the father waited approximately three months after the mother allegedly attempted to drive the children while she was intoxicated is highly indicative that the actual health and physical well-being of the children were not in such immediate danger that an ex parte custody order was necessary.

The father argues that the mother was not denied due process because, “out of an abundance of caution and concern for [the mother]’s parental and constitutional rights, the [trial] court immediately set its ex parte award of [pendente lite] custody for review with all the parties present.” We note, however, that the trial court set the matter for a hearing on November IB, 2012, more than 10 weeks after the ex parte order was entered. In the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975, our legislature determined that a parent is entitled to a hearing within 72 hours from the time that the parent’s child is removed from his or her custody. See § 12-15-308(a), Ala.Code 1975 (“When a child alleged to be dependent has been removed from the custody of the parent ... and has not been returned to same, a hearing shall be held within 72 hours from the time of removal, Saturdays, Sundays, and holidays included, to determine whether continued shelter care is necessary.”). Although § 12-15-308(a) applies only in dependency actions, we believe it to be instructive in nonjuvenile custody cases as well because the serious nature of removing a child from the custody of a parent without giving that parent notice and an opportunity to be heard is the same whether in the context of a juvenile proceeding or a nonjuvenile proceeding. The requirement in dependency cases that a hearing be conducted within 72 hours of a child’s removal from the custody of his or her parent supports a conclusion that, even when it is necessary to remove a child from his or her parent’s custody without first giving the parent notice or an opportunity to be heard, that parent should be given notice and an opportunity to be heard as expeditiously as possible — certainly sooner than 10 weeks after a child has been removed from the parent’s custody.

Based on the foregoing, we conclude that the allegations in the father’s custody petition were insufficient to warrant the entry of the ex parte pendente lite custody order without providing the mother with notice and the opportunity to be heard. Therefore, we grant the petition and direct the trial court to set aside its August 31, 2012, ex parte pendente lite order.

PETITION GRANTED; WRIT ISSUED.

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

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

      . We note that the mother’s alleged threat to commit suicide also occurred approximately three months before the father sought an ex parte custody order.

      . We acknowledge that there may be circumstances in which it would be impossible for a circuit court to schedule a hearing within 72 hours of entering an ex parte custody order, although mere difficulty in scheduling such a hearing would not excuse a delay. We cannot overemphasize that a hearing should be conducted as close to within 72 hours as possible after an ex parte custody order has been entered.


author: THOMPSON, Presiding Judge.

text:
    Lavanual CARTER and Margaret Carter v. Garry Lee CARTER.
    2110907.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.
    Rodney L. Stallings, Centre, for appellants.
    Submitted on appellants’ brief only.
   THOMPSON, Presiding Judge.

In September 2005, Lavanual Carter and Margaret Carter (“the Carters”) filed a complaint against Gariy Lee Carter (“Garry”) in which they sought the determination of a boundary line and an easement through a claim of adverse possession. Garry filed an answer. The Carters amended their complaint, and Garry answered the amended complaint. The record indicates that the action was dismissed in March 2009 but that it was almost immediately reinstated on the docket. The matter was scheduled for status conferences numerous times.

On March 20, 2012, the trial court entered an order scheduling the matter for a trial on May 23, 2012. On April 10, 2012, Garry’s attorney filed a motion to dismiss the action, arguing that Garry had died on April 28, 2008, and that, under Rule 25, Ala. R. Civ. P., the action should be dismissed because of the Carters’ failure to substitute parties.

On April 12, 2012, the trial court granted the motion to dismiss the Carters’ action. The Carters filed a postjudgment motion on April 18, 2012, in which they argued that the action could not be dismissed under Rule 25 because no suggestion of death had been filed in the trial court. The Carters filed a notice of appeal before the expiration of the 90 days allowed by Rule 59.1, Ala. R. Civ. P., for the trial court to rule on the postjudgment motion. The Carters’ notice of appeal is deemed to have been held in abeyance until the denial by operation of law on July 17, 2012, of the pending postjudgment motion, and the Carters’ notice of appeal became effective on that date. Carnes v. Carnes, 82 So.3d 704, 709-10 (Ala.Civ.App.2011). This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the Carters argue that the trial court erred in dismissing their action under Rule 25(a)(1), Ala. R. Civ. P., which provides:

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon persons not parties in the manner provided in Rule 4[, Aa. R. Civ. P.,) for the service of a summons, arid may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested wpon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall in the absence of a showing of excusable neglect be dismissed as to the deceased party.”

(Emphasis added.) The Carters argue that the six-month period allowed under Rule 25 for the substitution of parties was not triggered in this case because no suggestion of Garry’s death had been filed in the trial court. We agree.

Aabama courts have held that when a suggestion of death is not filed in the trial court, the six-month period for the substitution of parties is not triggered, and the action cannot be properly dismissed for the failure to substitute parties. Hill v. Jackson, 669 So.2d 921, 924 (Ala.Civ.App.1995) (“Rule 25(a)(1) requires that the death be suggested upon the record ... before the six months allotted for a motion for substitution begins to run.”); see also Kissic v. Liberty Nat’l Life Ins. Co., 641 So.2d 250, 252 (Ala.1994) (same).

A though Garry’s attorney did not favor this court with an appellate brief, we note that before the trial court he argued that the Carters were aware of Garry’s death. As support for that argument, Garry’s attorney submitted to the trial court a copy of a claim made by the Carters against Garry’s' estate. However, the fact that a party is aware of the death of another party is not sufficient to constitute a “suggestion of death” on the record as contemplated by Rule 25(a)(1). In Kissic v. Liberty National Life Insurance Co., supra, our supreme court held that passing references to the death of one of the parties that are contained in a pleading or a motion are not sufficient to constitute a suggestion of death upon the record for the purposes of Rule 25(a)(1). Our supreme court explained:

“It is quite simple under Rule 25 to start the running of the time period for substituting a proper party for a deceased party by filing a clearly designated ‘statement of the fact of death’ or ‘suggestion of death’ and by serving that statement in accordance with the requirements of the rule. Rule 1, [Ala.] R. Civ. P., states that our rules of civil procedure should be construed so as to secure the just determination of every action. It is not the purpose of our rules to foreclose or bar potentially meritorious claims. Hayes v. Brookwood Hospital, [572 So.2d 1251 (Ala.1990)]. Any construction of Rule 25 on our part that could, under certain circumstances, create a trap for an unwary attorney would surely violate the spirit, if not the letter, of our rules of civil procedure. Therefore, we conclude, as the federal courts have, that requiring adherence to the simple procedure contemplated by Rule 25(a)(1) is preferable to embarking on a case-by-case review to determine under what circumstances the filing and service of a document during litigation would be sufficient to start the running of the six-month limitations period. For the foregoing reasons, we hold that neither the passing reference to Ronnie Kissic’s death contained in the crossclaim, nor the one contained in the motion for joinder, was sufficient under Rule 25 to start the running of the six-month period.”

Kissic v. Liberty Nat’l Life Ins. Co., 641 So.2d at 252 (emphasis added). See also Eason v. Bynon, 845 So.2d 817, 821 (Ala.Civ.App.2002) (a mention of a party’s death in an appellate brief does not constitute a “suggestion of death” under Rule 25(a)(1)).

In this case, under Alabama law, the six-month period for seeking to substitute parties had not been triggered because no suggestion of Garry’s death had been filed in the trial court. Accordingly, we conclude that the trial court erred in dismissing the Carters’ action for the failure to substitute parties.

REVERSED AND REMANDED.

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

      . In some pleadings in this matter, Garry's name is spelled "Gary.” However, that alternate spelling is not consistent throughout the record on appeal. Garry's attorney did not favor this court with a brief on appeal.


author: THOMAS, Judge.

text:
    Andrew V. PAKHOMOV v. Robert TUTEN and Billy Ware.
    2110873.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.

      Andrew V. Pakhomov, pro se.
    Nickolas R. Heatherly, Huntsville, for appellees.
   THOMAS, Judge.

In June 2006, Andrew V. Pakhomov employed Robert Tuten to represent him at his criminal trial; Billy Ware was employed as an investigator on the case. The contract between Pakhomov, Tuten, and Ware required Pakhomov to pay $65,000 in legal and investigative-services fees. Pak-homov was ultimately convicted. He had not paid Tuten and Ware all the fees due. Pakhomov executed a confession of judgment in favor of Tuten and Ware in which Pakhomov agreed that he owed Tuten and Ware $31,000. Tuten and Ware sued Pak-homov and received a summary judgment in their favor in the amount of $31,000 and an award of costs in the amount of $591.21. Pakhomov did not satisfy the judgment.

Tuten and Ware instituted a garnishment proceeding in March 2011. They served the Variable Annuity Life Insurance Company (“VALIC”), the administrator of the New Mexico Alternative Retirement Plan. VALIC answered, indicating that it held $20,241.64 in nonexempt funds owned by Pakhomov. Tuten and Ware also served Pakhomov, who was incarcerated at Kilby Correctional Facility, by certified mail. The certified-mail return receipt indicated that it was signed for by a “Paul Rogers,” who was noted to be a “Capt. Kilby Correct.,” on March 30, 2011.

Based on VALIC’s answer, the trial court entered a judgment condemning the funds on April 12, 2011. Pakhomov did not file a claim of exemption before the trial court entered its condemnation order. However, Tuten and Ware had Pakhomov personally served with the same garnishment process on May 6, 2011. On May 11, 2011, Pakhomov filed a claim of exemption regarding the funds held by VALIC; he claimed that the funds were 401(k) funds that were exempt from execution under both Alabama and federal law. Pakhomov did not serve his claim of exemption on Tuten and Ware.

In October 2011, Pakhomov wrote a “letter of inquiry” regarding his claim of exemption to the Madison circuit clerk. The clerk notified Pakhomov that his claim had not been timely filed and that the funds held by VALIC had been paid to Tuten and Ware. Pakhomov then filed on November 17, 2011, what he styled as a “Motion to Reverse the Disbursement of Defendant’s 401(k) Funds Under Garnishment,” in which he requested that the trial court set aside the order of condemnation of the VALIC funds, which he again asserted were 401 (k) funds exempt from execution. Tuten and Ware responded to Pakhomov’s motion by disputing that the VALIC funds were 401(k) funds. Pakho-mov replied to Tuten and Ware’s response, and he attached some documentation indicating that the Alternative Retirement Plan administered by VALIC was a 401(k) plan.

The trial court entered an order on February 12, 2012, in which it determined that Pakhomov’s claim of exemption had been untimely filed and denying Pakhomov’s November 17, 2011, motion. On March 7, 2012, Pakhomov filed what purported to be a Rule 59, Ala. R. Civ. P., or Rule 60(b), Ala. R. Civ. P., motion seeking the trial court to reconsider its denial of his November 17, 2011, motion. Tuten and Ware responded on May 7, 2012, and Pakhomov replied to their response on May 22, 2012. The trial court purported to deny Pakho-mov’s March 7, 2012, postjudgment motion on May 24, 2012. Pakhomov appealed on June 11, 2012.

No party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Williams v. Williams, 70 So.3d 332 (Ala.Civ.App.2009); Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003). Our review of the record convinces us that Pakhomov’s appeal is untimely.

The April 12, 2011, order condemning the funds held by VALIC was a final judgment in the garnishment proceeding. See Steiner Bros. v. First Nat’l Bank of Birmingham, 115 Ala. 379, 22 So. 30 (1897).

“[T]he judgment rendered, as between the parties, the plaintiff instituting it, and the garnishee standing in the relation of a defendant, has all the properties and qualities of finality and conclusiveness of a judgment rendered in any other civil suit. A judgment against the garnishee in favor of the plaintiff, as finally and conclusively fixes and determines the liability of the garnishee and the rights of the plaintiff as if it had been rendered in a suit inter partes commenced in the ordinary mode of instituting civil suits; and such is, in effect, the declaration of the statute.... Either judgment — the one in favor of the plaintiff, or that in favor of the garnishee — concludes the rights of the parties in respect to the cause of action involved — the matter of right asserted by the one and denied by the other.”

Steiner Bros., 115 Ala. at 384, 22 So. at 31.

Pakhomov did not file a timely postjudgment motion directed toward the April 12, 2011, judgment, see Rule 59(b) (requiring that a postjudgment motion pursuant to Rule 59(e) be made within 30 days of the entry of the judgment), or appeal from it. Thus, Pakhomov’s November 17, 2011, motion, although titled a “Motion to Reverse the Disbursement of Defendant’s 401(k) Funds Under Garnishment,” could only have been a Rule 60(b) motion seeking to have the trial court set aside the April 12, 2011, judgment condemning the funds held by VALIC. See Ex parte Hartford Ins. Co., 394 So.2d 933, 935 (Ala.1981) (stating that “[i]t is clear that under the new Rules of Civil Procedure, nomenclature of a motion is not controlling,” and determining that the trial court had correctly construed a motion entitled “Motion to Reinstate” to be a Rule 60(b) motion seeking to have an order dismissing the action set aside). Putting aside for a moment any question of the timeliness of the Rule 60(b) motion, Pak-homov’s failure to appeal from the February 14, 2012, denial of his motion is fatal to his appeal.

“ ‘[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.’ ” Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989)). Pakhomov’s March 7, 2012, motion seeking to have the trial court reconsider its February 14, 2012, ruling on his Rule 60(b) motion did not serve to toll the time for an appeal. Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998); see also Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003); Moser v. Moser, 839 So.2d 664, 665 (Ala.Civ.App.2002). Thus, Pakhomov had until March 27, 2012 — 42 days after the entry of the February 14, 2012, judgment — to file his notice of appeal. See Rule 4(a)(1), Ala. R.App. P. (requiring that, except in the case of certain specified judgments or orders, a notice of appeal be filed within 42 days of the entry of judgment). Pakho-mov’s June 11, 2012, notice of appeal was untimely filed. Because the timely filing of a notice of appeal is a jurisdictional act, Pakhomov’s appeal must be dismissed. See Reeves, 882 So.2d at 874.

APPEAL DISMISSED.

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

      . Pakhomov had served as a visiting professor at the University of New Mexico.

      . We note that Tuten and Ware filed a second garnishment proceeding against TIAA-CREF on May 5, 2011. Pakhomov was also served with that process on May 6, 2011. TIAA-CREF answered and informed Tuten and Ware that the funds in its possession were exempt funds. Those funds are not at issue in this appeal.

      . Among the arguments made in Pakhomov’s motion was the argument that he had not been served in the garnishment proceeding before the entry of the order of condemnation and that, as a result, his claim of exemption was timely. Tuten and Ware provided further evidence of service of the garnishment process on Pakhomov in March 2011, including the affidavit of Sybil Green, who testified regarding the receipt process for certified mail at Kilby Correctional Facility and who attached to her affidavit an envelope signed for by Pakhomov on March 30, 2011.

      . See Rule 60(b), which requires that motions filed pursuant to Rule 60(b)(1), (2), and (3) be filed within four months of the entry of the judgment to which the motion is directed and that motions filed pursuant to Rule 60(b)(5) and (6) be filed within a reasonable time. Motions brought pursuant to Rule 60(b)(4) are not subject to the reasonable-time requirement of'Rule 60(b) and may be brought at any time. See Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 643 (Ala.2003). Because Pak-homov’s motion did not explicitly rely on Rule 60(b), much less specify a particular subsection of the rule, we would ordinarily consider the allegations in the motion to determine the ground upon which his motion was based. See Price v. Clayton, 18 So.3d 370, 375 (Ala.Civ.App.2008) (construing a motion filed pursuant to Rule 60(b) as a motion brought pursuant to Rule 60(b)(6) because of the language used in the motion, the relief sought by the motion, and the evidence in the record). However, in light of our conclusion, infra, that the appeal is due to be dismissed, we will assume without deciding that Pakhomov’s motion was brought pursuant to either Rule 60(b)(4) or (6) and was therefore timely.