author: THOMPSON, Presiding Judge.

text:
    R.D.J. v. A.P.J.
    2120531.
    Court of Civil Appeals of Alabama.
    . Oct. 4, 2013.

      Jonathan A. Spann of Crowson, Morrison & Spann, LLC, Columbiana; and James Entrekin, Jr., of Entrekin Consulting, L.L.C., Birmingham, for appellant.
    Samantha Rush, Birmingham, for appel-lee.
   THOMPSON, Presiding Judge.

A.P.J. (“the mother”) and R.D.J. (“the father”) were divorced by a July 24, 2009, judgment of the Jefferson Circuit Court (“the trial court”). Pursuant to the divorce judgment, the parties were awarded joint legal custody of their three minor children, the mother was awarded primary physical custody of the children, and the father was awarded liberal visitation, including overnight visitation during the week. In addition, the father was ordered to provide health insurance for the children and to pay child support and one-half of any medical expenses not covered by health insurance.

On April 22, 2011, the trial court granted the mother’s request for enforcement of, and a modification of, the divorce judgment. In its April 22, 2011, judgment, the trial court modified the father’s child-support obligation and some of the visitation provisions of the divorce judgment. In addition, the trial court found the father in contempt of court for his failure to pay child support as ordered in the divorce judgment. The trial court determined the father’s child-support arrearage and ordered the father incarcerated until he purged himself of the contempt by paying that arrearage. The record does not indicate for what length of time, if any, the father was incarcerated pursuant to that April 22, 2011, contempt finding.

On April 19, 2012, the father filed a petition seeking, among other things, to modify the earlier judgments' to award custody of the children to him and to have the mother held in contempt for her alleged interference with his visitation rights.

Also on April 19, 2012, the mother filed a petition to modify the earlier judgments. In her petition, the mother sought to modify the father’s visitation, an award of an attorney fee, and to have the father held in contempt for his continued failure to make payments, including child support, ordered under the previous judgments. The mother also sought a pendente lite order suspending the father’s visitation with the children.

Allegations by the parties’ daughter that the father had sexually abused her form the basis of the parties’ 2012 dispute. It also appears other abuse allegations were made by the parties’ sons. At the time the April 19, 2012, petitions to modify were filed, the State Department of Human Resources was investigating the abuse allegations. Given the nature of the allegations, the trial court ordered the record sealed and appointed a guardian ad litem for the children. The trial court also consolidated the two actions initiated by the parties by the filing of their separate April 19, 2012, petitions to modify. The trial court also entered a pendente lite order modifying the father’s visitation with the daughter to daytime hours only.

On September 4, 2012, the father’s attorney filed a motion to withdraw, stating as a basis for that motion that the attorney might be called as a character witness for the father during the hearing on the merits, which, at that time, was scheduled for September 14, 2012. On September 6, 2012, the trial court entered an order granting the motion to withdraw. New counsel then filed a notice of appearance on behalf of the father.

Also on September 4, 2012, the parties and their attorneys signed an agreement (hereinafter referred to as “the memorandum agreement”) concerning the father’s pendente lite visitation with the children. The September 4, 2012, memorandum agreement is date stamped as having been filed in open court on September 4, 2012, and that memorandum agreement contains the notation: “Trial date 11/14/2012.” A notation on the case-action summary dated September 6, 2012, states that the trial was scheduled for November 14, 2012. On September 25, 2012, the trial court entered a written order incorporating the terms of the memorandum agreement, and that order specifically included a statement that the hearing on the merits was scheduled for November 14, 2012. The memorandum agreement was also filed in the trial-court clerk’s office and entered on the case-action summary on September 25, 2012.

On November 5, 2012, the mother again moved to have the father held in contempt for his continued failure to pay child support and for failing to make payments toward the child-support arrearage. The mother requested that the father be incarcerated as a sanction for the contempt. On November 8, the trial court entered an order scheduling its consideration of the mother’s motion for contempt for November 14, 2012, the date of the scheduled hearing on the merits of the parties’ modification petitions.

It is undisputed that the mother, her attorney, and the father’s attorney appeared for the November 14, 2012, hearing but that the father did not attend that hearing. Also on November 14, 2012, the father’s new attorney moved to withdraw, stating in that motion that he had advised the father “of the matters currently pending before this court.” The trial court granted that motion to withdraw before the hearing began. A transcript of the ore tenus hearing is not contained in the record on appeal.

On November 15, 2012, the trial court entered a judgment in which it, among other things, denied the father’s petition to modify, awarded the mother sole legal custody of the parties’ three children, and modified the father’s visitation with the children. The trial court ordered the father to pay the guardian ad litem’s fee and an attorney fee for the mother. In addition, the trial court found the father in willful contempt for his failure to pay child support, and it issued a writ of arrest for the father.

On November 20, 2012, the trial court entered an order granting an oral motion by the father to withdraw or set aside the writ of arrest. The mother represents in her brief submitted to this court that by November 20, 2012, the father had paid the child-support arrearage on which the contempt finding supporting the writ of arrest had been based.

On December 14, 2012, the father, again represented by the attorney who had previously withdrawn to serve as a character witness for the father, filed a post-judgment motion pursuant to Rule 55(c), Ala. R. Civ. P. In that December 14, 2012, motion, the father sought to set aside the trial court’s November 15, 2012, default judgment. The father asserted various arguments in that postjudgment motion, but he did not submit any supporting evidence in support of that motion. The trial court scheduled the father’s postjudgment motion for a hearing on January 30, 2013. In January 2013, the mother filed an opposition to the father’s postjudgment motion.

On February 1, 2013, after the trial court had conducted the January 30, 2013, postjudgment hearing, the father filed a supplement to his postjudgment motion in which he argued that the copy of the memorandum agreement located by his attorney did not contain a notation concerning the scheduled trial date. The mother responded to that supplemental filing by alleging that her copy of the memorandum agreement contained the notation scheduling the hearing for November 14, 2013; the mother also alleged that during the meeting that resulted in the memorandum agreement, the trial date had been scheduled after the parties had consulted with the court’s staff.

On February 6, 2013, the trial court entered a postjudgment order stating that it had considered the arguments of the parties, the father’s postjudgment motion and the mother’s opposition to that motion, the father’s February 1, 2013, supplement to his postjudgment motion, and “the official electronic file on AlaCourt Plus, especially page 193.” In its February 6, 2013, postjudgment order, the trial court denied the father’s postjudgment motion seeking to set aside the November 15, 2013, default judgment.

On March 11, 2013, the father filed a motion titled “motion to reconsider [the father’s] motion to set aside judgment.” In that motion, the father set forth a more extensive argument pertaining to the factors relevant for considering a request to set aside a default judgment. In support of his March 11, 2013, motion, the father submitted, among other things, his own affidavit. However, “[a] trial court lacks jurisdiction to entertain a successive postjudgment motion requesting the same or similar relief as the original postjudgment motion or requesting reconsideration of the trial court’s denial of the original postjudgment motion.” Green v. Green, 43 So.3d 1242, 1244 (Ala.Civ.App. 2009); see also Gold Kist, Inc. v. Griffin, 659 So.2d 626, 627 (Ala.Civ.App.1994) (“Successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed.”). Thus, the trial court had lost jurisdiction over this matter after it denied the father’s motion to set aside the default judgment. We note that in his March 11, 2013, successive post-judgment motion, the father, as an alternative to his arguments under Rule 55(c), also purported to seek relief pursuant to Rule 60(b), Ala. R. Civ. P. Even assuming that the father properly requested relief under Rule 60(b), see Ex parte Haynes, 58 So.3d 761, 765-66 (Ala.2010), the possible pendency of that part of the father’s March 11, 2013, motion does not render the trial court’s rulings nonfinal so as to prevent review on appeal by this court. Rule 60(b), Ala. R. Civ. P. (“A motion under this subdivision does not affect the finality of a judgment or suspend its operation.”). Therefore, the February 6, 2013, order denying his December 14, 2012, postjudgment motion is a final judgment that will support an appeal, and the father’s appeal is timely.

The father contends on appeal that the trial court erred in denying his motion seeking to set aside the November 15, 2012, default judgment. The trial court has broad discretion in ruling on a motion to set aside a default judgment. Zeller v. Bailey, 950 So.2d 1149,1152 (Ala. 2006); Rudolph v. Philyaw, 909 So.2d 200, 202 (Ala.Civ.App.2005). In determining whether to grant or to deny a motion to set aside a default judgment, the trial court must first presume that the action should be resolved on the merits whenever practicable. Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 613 (Ala.1988). That presumption must be balanced against the policy interest of promoting judicial economy. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 604 (Ala.1988). Our supreme court has established guidelines to be followed by the trial court in exercising its discretion in determining whether to grant or to deny a motion to set aside a default judgment:

“[A] trial court’s broad discretionary authority under Rule 55(c)[, Ala. R. Civ. P.,] should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.”

Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d at 605. See also Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869, 872-73 (Ala.2002) (discussing the law and the burden of the movant with regard to each of the three Kirtland factors).

On appeal, the father asserts arguments pertaining to each of the three Kirtland factors. The trial court’s February 6, 2013, order expressly states that the court had considered the arguments of the parties during the postjudgment hearing and all the parties’ filings made before its ruling. The trial court also stated that it had considered “the official electronic file on AlaCourt Plus, especially page 193.” Page 193 of that record is the memorandum agreement that contains the notation “Trial date 11/14/2012” and is date stamped as having been filed in open court on September 4, 2012, and as having been filed in the trial-court clerk’s office on September 25, 2012. We conclude that that finding indicates that the trial court considered the third Kirtland factor, i.e., the culpable conduct of the father, and that the trial court resolved that Kirtland factor against the father. However, we make no determination regarding the propriety of that determination because the trial court’s judgment does not demonstrate that the court considered the other two factors under Kirtland.

Although the trial court stated that it had considered the arguments of the parties and all of their filings made before its ruling, the trial court’s February 6, 2013, order does not explicitly reference the other two Kirtland factors. Specifically, that order contains no determination as to whether the father had a meritorious defense or as to whether there would be prejudice to the mother and children if the November 15, 2012, judgment was set aside and the mother was required to again present evidence on the merits. In White v. Westmoreland, 680 So.2d 348, 349 (Ala.Civ.App.1996), this court held that when the record does not demonstrate that the trial court considered each of the three Kirtland factors, the judgment must be reversed and the cause remanded for such a determination. See also Jenkins v. Moss, 66 So.3d 803, 807 (Ala.Civ.App.2011) (reversing and remanding for the trial court to enter an order applying Kirtland when it appeared the trial court had considered only one of the three Kirtland factors).

Accordingly, we reverse the trial court’s February 6, 2013, order and remand the cause for the trial court to enter an order containing findings pertaining to all three Kirtland factors. This court’s holding, however, “is not to be construed to mean that the trial court must set aside the default judgment, only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.” White v. Westmoreland, 680 So.2d at 349.

The appellee’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . In one paragraph of his postjudgment motion, the father quotes a portion of Rule 60(b), Ala. R. Civ. P. However, in that December 14, 2012, postjudgment motion, the father made no argument pertaining to Rule 60(b) and did not seek relief pursuant to that rule. The substance of a postjudgment motion governs the manner in which it is construed. Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala. 1996). Accordingly, we conclude that the substance of the father’s December 14, 2012, postjudgment motion is confined to seeking to set aside the November 15, 2012, judgment pursuant to Rule 55(c), Ala. R. Civ. P.

      . We agree with the parties’ characterization of the November 15, 2012, judgment as one entered by default. "While a failure to answer a complaint is a common basis for the entry of a default, a default may be entered on other grounds, including ... a failure to appear at trial.” Sumlin v. Sumlin, 931 So.2d 40, 46 n. 2 (Ala.Civ.App.2005); see also Rule 55(b)(2), Ala. R. Civ. P. (“[Jjudgment by default may be entered by the court on the day the case is set for trial without [the] three (3) days notice” required when a party has not filed an appearance in the action.).

      . We note that, in support of his argument on appeal, the father cites as supporting facts evidence from the affidavit and other documents that were submitted to the trial court in his impermissible successive postjudgment motion that was submitted to the trial court after it had entered its February 6, 2013, postjudgment order and had lost jurisdiction over this matter. Accordingly, that evidence has not been considered by this court.

      . To the extent that the father argues on appeal that the trial court should have afforded him relief under Rule 60(b), we conclude that such an argument is not properly before this court. Even assuming that the father properly sought relief pursuant to Rule 60(b) in his March 11, 2013, motion, the trial court has not ruled on that request. Therefore, there is no adverse ruling on the purported Rule 60(b) motion, and this court therefore does not address the father’s arguments based on Rule 60(b). See, e.g., Ex parte R.S.C., 853 So.2d 228, 233-34 (Ala.Civ.App.2002) (“A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation.”); and Rhodes v. Rhodes, 38 So.3d 54, 63 (Ala.Civ.App.2009) (“[Bjecause the trial court has not yet expressly ruled on the husband’s Rule 60(b) motion, it is still pending before the trial court and there has been no final order on that motion from which to appeal.”).


source: Caselaw Access Project

license: Public Domain

text:
    James B. GUNTHER, Jr., and Jane Lee Gunther v. CARPET SYSTEMS OF HUNTSVILLE, INC.
    2120511.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.

      James B. Gunther, Jr., of Gunther Law Firm, LLC, Huntsville, for appellant.
    Joan-Marie Dean, Huntsville, for appel-lee.
   THOMPSON, Presiding Judge.

On May 4, 2009, Carpet Systems of Huntsville, Inc. (“Carpet Systems”), filed in the Madison Circuit Court (“the trial court”) a complaint seeking to recover $40,650 plus interest, costs, and an attorney fee from James B. Gunther, Jr., Jane Lee Gunther (hereinafter referred to collectively as “the Gunthers”), and Antioch Homes, LLC (“Antioch”). The complaint alleges that Carpet Systems was employed as a subcontractor of Antioch in Antioch’s construction of a house for the Gunthers. The Gunthers answered and denied liability.

On December 14, 2012, the Gunthers moved for a summary judgment on Carpet Systems’ claims against them. The trial court scheduled a hearing on that summary-judgment motion for February 1, 2013. On January 25, 2013, Carpet Systems filed an opposition to the Gunthers’ summary-judgment motion, and it filed its own motion for a summary judgment against the Gunthers and Antioch. The Gunthers opposed Carpet Systems’ motion for a summary judgment. Antioch did not respond or attempt to defend this action, and it is not a party on appeal.

On February 19, 2013, the trial court entered a summary judgment in favor of Carpet Systems against all three defendants. In its summary judgment, the trial court awarded Carpet Systems $40,650 plus costs. The Gunthers timely appealed.

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant ... a [summary-judgment] motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
““‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the non-movant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’
“Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d 991, 994-95 (Ala.2008).

The dispute in this action pertains to whether Carpet Systems properly complied with § 35-11-210, Ala.Code 1975, in asserting its claim for a “full price” materi-alman’s lien against the Gunthers. Section 35-22-210 provides, in pertinent part:

“[I]f [the materialman] shall notify the owner or his or her agent in writing that certain specified material will be furnished by him or her to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his or her agent objects thereto, the furnisher of the material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for the material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his or her agent shall notify the furnisher in writing before the material is used, that he or she will not be responsible for the price thereof.”
Our supreme court has explained that “[t]o establish the right to a full-price lien, the supplier must either (1) have an express contract with the property’s owner or the owner’s agent to supply the materials or labor, or (2) have given notice to the owner in writing of the cost of the materials or labor to be supplied before beginning work or delivering materials and the owner must not have responded in writing that the owner will not be liable for payment.”

Saunders v. Lawson, 982 So.2d 1091, 1093 (Ala.Civ.App.2006). In this case, Carpet Systems did not have an express contract for the materials and labor for which it asserts a claim for a lien. Therefore, Carpet Systems has proceeded to assert its claim under the second option described in Saunders v. Lawson, i.e., a notification to the property owners of its intent to reserve its right to claim a lien.

The purpose of § 35-11-210 is to secure the materialman’s claim for payment for materials and labor it provides and to offer protection to the homeowner by requiring timely notice of the material-man’s claim to a lien:

“The purpose of the statute creating a materialman’s lien is to protect one who supplies labor or materials for any building or improvement on land when he does so at the request of the contractor rather than at the request of the landowner. Abell-Howe Co. v. Industrial Dev. Bd., 392 So.2d 221, 224 (Ala.Civ.App.1980). The statute allows a supplier to establish a lien in order to guarantee payment. Id. However, the notice provision of the materialman’s lien statutes was included for the protection of the owner. Id. (citing Covington Co. Bank v. R.J. Allen & Assoc., 462 F.Supp. 413 (M.D.Ala.1977)).
“ ‘[The notice provision was] designed to inform the owner that the claimant intends to place an encumbrance on the owner’s land; the owner then has an opportunity to effect a settlement between himself, the contractor and the supplier prior to any encumbrancing. Harper v. J & C Trucking & Excavating Co., 374 So.2d 886 (Ala.Civ.App.1978), writ quashed, 374 So.2d 893 (Ala.1979).’
392 So.2d at 224.”

Davis v. Gobble-Fite Limber Co., 592 So.2d 202, 205 (Ala.1991).

Our courts have held, however, that strict compliance with § 35-11-210 is required in order to protect the material-man’s claim. In Davis v. Gobble-Fite Lumber Co., supra, the materialman provided the owner notice of its intent to assert a full-price lien on the day following the delivery of the materials to be provided to the construction site. The trial court entered a summary judgment awarding the materialman a lien. Our supreme court reversed, concluding that because the notice was provided to the homeowners after the materials at issue had been delivered, the materialman had failed to comply with the requirements of § 35-11-210. The court explained:

“The text of § 35-11-210 clearly states that in order to procure a full-price lien, the materialman must give notice of intent to claim a lien to the owner before any material is furnished. The materialman’s lien statute is in derogation of the common law. Therefore, enforcement of a lien depends upon strict compliance with the statute’s substantive requirements.”

Davis v. Gobble-Fite Lumber Co., 592 So.2d at 206. See also Saunders v. Lawson, 982 So.2d at 1094 (holding that the materialman failed to provide notice, in writing, of an intent to claim a lien before furnishing supplies and labor, and, therefore, the materialman was not entitled to a full-price lien under § 35-11-210).

The parties do not dispute that the foregoing is the law applicable to their dispute. Rather, they dispute whether Carpet Systems was entitled to a summary judgment on its claim for a full-price lien pursuant to § 35-11-210 and whether, in the alternative, the trial court should have entered a summary judgment in favor of the Gun-thers. With regard to those issues, Carpet Systems and the Gunthers presented the following evidence in support of their respective positions.

The Gunthers contracted with Antioch to construct a house and Antioch referred the Gunthers to Carpet Systems, a subcontractor, for the flooring for the house. It is undisputed that the Gunthers paid Antioch the entire amount due under their construction contract with Antioch, which included the amounts Antioch was supposed to pay to the subcontractors for their work. Antioch did not pay Carpet Systems for its materials and labor. The Gunthers obtained a certificate of occupancy for the completion of the house on November 25, 2009.

In support of its motion for a summary judgment and in its submissions opposing the summary-judgment motion filed by the Gunthers, Carpet Systems presented documentary evidence and affidavits. Carpet Systems submitted to the trial court, among other things, the affidavit of Chris Beyl, a salesman for Carpet Systems. The Gunthers argue, as they did before the trial court, that Beyl’s affidavit was not proper under Rule 56(e), Ala. R. Civ. P., because, they maintain, it is not based on Beyl’s personal knowledge. Although Beyl did not specifically state that the facts in the affidavit are based upon his personal knowledge, in his affidavit Beyl states that he took certain actions and was present when other people took certain actions. Accordingly, we conclude that much of Beyl’s affidavit was based on his personal knowledge and complies with the requirements of Rule 56(e).

Also, with one exception, we reject the Gunthers’ arguments that the documents submitted in support of Beyl’s affidavit were not properly authenticated. This court has explained:

“With respect to the requirement in Rule 56(e) that ‘[sjworn ... copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,’ our supreme court has stated:
“ . This means that if written documents are relied upon they actually must be exhibited; affidavits that purport to describe a document’s substance or an interpretation of its contents are insufficient....” Wright & Miller, Federal Practice and Procedure: Civil § 2722.’
“Oliver v. Brock, 342 So.2d 1, 4-5 (Ala.1976) (emphasis added). See also Welch v. Houston Cnty. Hosp. Bd., 502 So.2d 340, 343 (Ala.1987); Osborn v. Johns, 468 So.2d 103, 108 (Ala.1985). As the foregoing decisions imply, a document is deemed to be ‘sworn’ if it is authenticated by the affiant and attached as an exhibit to the affidavit.”

Coleman v. BAC Servicing, 104 So.3d 195, 202 (Ala.Civ.App.2012) (final emphasis added).

In his affidavit submitted in support of Carpet Systems’ arguments, Beyl referenced documents he had himself prepared or had witnessed being completed by Jane Gunther (hereinafter “Gunther”). Those documents were submitted in support of Beyl’s affidavit. Therefore, Beyl’s affidavit served to authenticate those documents of which he had personal knowledge.

However, Beyl’s reference in his affidavit to seven Carpet Systems work orders is not based on his personal knowledge. Beyl states in his affidavit that other employees completed those work orders. Beyl did not testify that he had personal knowledge of those work orders, and no effort was made to authenticate the work orders as business records. Accordingly, we conclude that the work orders referenced in Beyl’s affidavit were inadmissible.

In that part of his affidavit containing admissible evidence, Beyl testified that he met with the Gunthers in early September 2009 and that the Gunthers selected various flooring materials. Beyl stated that, thereafter, he went to the house to obtain measurements for the installation of the flooring materials selected by the Gun-thers. Beyl testified that on September 22, 2009, he met with Gunther and that she completed Carpet Systems’ standard “Notification to Owner of Furnishing Labor and/or Materials” (hereinafter “the September 22, 2009, notification”). Beyl also stated that, “to the best of [his] recollection,” Gunther had filled in that part of the September 22, 2009, notification form that reflected that the cost of the materials and labor to be supplied by Carpet Systems was $40,650. The September 22, 2009, notification form was submitted in support of Beyl’s affidavit; the parties do not dispute that the language of that notification complied with § 35-11-210. Beyl also testified that on September 23, 2009, he prepared a job contract detailing the total amount due for supplying materials and labor for “Antioch’s job” at the Gunthers’ house; that document was submitted to the trial court.

Carpet Systems also submitted into evidence the verified statement of its lien that it filed in the Madison Probate Court (“the probate court”) on November 19, 2009. In that document, Carpet Systems represented that the materials for the project had been supplied “on or about October 15, 2009.” In addition, Carpet Systems submitted to the trial court a sworn “Affidavit/Proof of Claim,” dated March 23, 2010, in which its president, Carter Haley, testified that the materials that were the subject of the claimed lien “were delivered on or about October 15, 2009.”

In support of their position, the Gun-thers submitted, among other things, the affidavit of Gunther. Gunther admitted that she filled out some of the information on the September 22, 2009, notification form, but she disputed that she had written the amount “$40,650” on that form. Rather, according to Gunther, “the amount on the [September 22, 2009,] notification was left blank.” The Gunthers did not submit into evidence the copy of the September 22, 2009, notification that they contended they received from Carpet Systems.

Gunther testified, among other things, that she was at the house on a daily basis in early to mid-September 2009 and that, at that time, employees of Carpet Systems had prepared the house for the installation of flooring and had begun installing hardwood floors in the house. Gunther stated in her affidavit that much of the hardwood flooring was in place at the time she was given the September 22, 2009, notification.

Gunther also presented evidence indicating that on September 9, 2009, the Gun-thers purchased $3,110 in materials from Carpet Systems and paid for those materials using a credit card. Gunther did not specify what materials were purchased on that date. Rather, Gunther testified that on September 9, 2009, Beyl assured her that hardwood flooring had been ordered and that another Carpet Systems employee “assisted her in the completion of the tile purchase.” Gunther further stated that exhibit C to her affidavit demonstrates that the Gunthers paid Carpet Systems “for the floor tile and materials” on September 9, 2009. Exhibit C to Gunther’s affidavit is her credit-card statement, which indicates a charge for $3,110 but does not identify what items were purchased.

On appeal, the Gunthers argue that the trial court erred in entering a summary-judgment in favor of Carpet Systems. Under § 35-11-210, Davis v. Gobble-Fits Lumber Co., supra, and Saunders v. Lawson, supra, in order to make a prima facie showing sufficient to entitle it to a summary judgment in its favor, Carpet Systems was required, among other things, to present evidence indicating that it provided the Gunthers the September 22, 2009, notification before materials or labor were furnished. The admissible evidence before the trial court demonstrates that Beyl met with the Gunthers and measured the house in early September 2009 and that he prepared a job contract on September 23, 2009. Carpet Systems presented its statement of a materialman’s lien filed in the probate court and Haley’s March 23, 2010, sworn statement, both of which stated that the materials subject to the claim for a materialman’s lien had been furnished on or about October 15, 2009. Thus, we conclude that Carpet Systems met its prima facie burden of demonstrating, pursuant to § 35-11-210, that it notified the Gunthers of its claim for a full-price lien on September 22, 2009, well before it furnished the materials on October 15, 2009.

Also, § 35-11-210 requires that in order to properly notify the homeowner of the right to assert a lien, the materialman must notify the homeowner of the specific price of the material or labor to be provided. In this case, Beyl testified that, to the best of his knowledge or recollection, Gunther completed the September 22, 2009, notification form, which included the figure $40,650 as the amount of the materials and labor to be provided by Carpet Systems. In support of Beyl’s affidavit, Carpet Systems submitted the September 22, 2009, notification form, which, on its face, indicates that the Gunthers were properly notified of Carpet Systems’ possible claim for a full-price lien. We conclude that that evidence, taken together, constituted a pri-ma facie showing that Carpet Systems complied with § 35-11-210 by providing the September 22, 2009, notification to the Gunthers of its right to claim a full-price materialman’s lien and that the materials and labor were furnished after that date.

In opposition to that evidence, the Gunthers presented evidence indicating that Carpet Systems’ September 22, 2009, notification did not comply with § 35-11-210. Gunther testified that when she was provided the September 22, 2009, notification, the portion of that form identifying the amount of the claim was left blank, and she stated that she did not fill in that blank. The Gunthers did not submit into evidence the September 22, 2009, notification form they claim was provided to Gunther. Regardless, we conclude that Gunther’s testimony created a genuine issue of material fact regarding whether the September 22, 2009, notification properly complied with § 35-5-210.

Also, the Gunthers presented evidence disputing Carpet Systems’ prima facie showing that the materials and labor were furnished after the Gunthers received the September 22, 2009, notification. Gunther testified that Carpet Systems had already provided labor and that “much of the hardwood flooring” was in place when she received the September 22, 2009, notification. However, Gunther also testified that the Gunthers had made a separate purchase of materials from Carpet Systems on September 9, 2009, and that she had communicated on that date with a Carpet Systems employee about the installation and ordering of hardwood flooring. In her affidavit, Gunther did not explain whether the materials and labor she stated had .been provided before she received the September 22, 2009, notification were part of the larger, $40,650 order for which Carpet Systems sought its full-price lien or whether those materials and labor were provided pursuant to the separate, September 9, 2009, transaction in which the Gunthers purchased items directly from Carpet Systems. However, out of an abundance of caution, we conclude that there exists a factual question as to whether materials and labor for the order for which Carpet Systems claims a lien had been furnished before Carpet Systems provided the Gun-thers the September 22, 2009, notification.

Given the foregoing, we hold that the trial court erred in entering a summary judgment in favor of Carpet Systems.

Although the trial court did not expressly deny the Gunthers’ summary-judgment motion, that ruling is implicit in its February 19, 2013, summary judgment in favor of Carpet Systems. The Gunthers have argued on appeal that their evidence on the issue whether labor and materials was provided before they received the September 22, 2009, notification was sufficient to create a prima facie case for the entry of a summary judgment in their favor. See Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 263 (Ala.2002) (“[An] appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b)[, Ala. R. Civ. P.,] summary judgment disposing of fewer than all claims) entitles the [appellant], for purposes of [an appellate court’s] review, to raise issues based upon the trial court’s adverse rulings, including the denial of [the appellant’s] summary-judgment motion. See Ala. R.App. P. 4(a)(1).”). As already explained in this opinion, the Gunthers presented no evidence attempting to distinguish the materials provided pursuant to the September 9, 2009, purchase from those subject to the September 22, 2009, notice and subsequent lien. In the absence of evidence indicating that the materials and labor provided relate solely to that for which Carpet Systems is asserting its claim under § 35-11-210, we cannot say that the Gunthers presented a prima facie case. However, as already stated in our discussion of the Gunthers’ argument that summary judgment in favor of Carpet Systems was inappropriate on this issue, we conclude that the evidence presented by the parties on this issue was sufficiently in dispute to render summary judgment inappropriate in this action.

We must also reject the Gunthers’ argument that the trial court erred in denying their summary-judgment motion on the issue whether the September 22, 2009, notification complied with the requirements of § 35-11-210. The Gunthers claim that Gunther’s testimony in her affidavit that the September 22, 2009, notification did not set forth the amount of Carpet Systems’ claim was sufficient to make a prima facie case in support of their summaryjudgment motion. However, although Gunther described what she believed the September 22, 2009, notification stated, the Gunthers failed to submit a version of the September 22, 2009, notification form substantiating that description in Gunther’s affidavit. See Coleman v. BAC Servicing, 104 So.3d at 202 (““‘[I]f written documents are relied upon they actually must be exhibited; affidavits that purport to describe a document’s substance or an interpretation of its contents are insufficient. (emphasis omitted)). Thus, we cannot agree that the Gunthers presented a prima facie case that the September 22, 2009, notification failed to comply with § 35-11-210. Further, even assuming that such a prima facie case was made, as is indicated in our discussion of this issue in addressing the Gunthers’ arguments that the trial court had erred in entering a summary judgment in favor of Carpet Systems, Carpet Systems submitted what appears to be a notification in compliance with § 35-11-210. We conclude that the evidence presented by the parties created genuine issues of material fact to be resolved by the trial court.

The record demonstrates the existence of genuine issues of material fact in this action. Therefore, we hold that the trial court erred in entering a summary judgment in favor of Carpet Systems, and we reverse the judgment and remand the cause for further proceedings consistent with this opinion. The trial court’s denial of the Gunthers’ summary-judgment motion is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . Under § 35-11-210, a contractor may also assert a claim for an “unpaid balance” lien, i.e., one “for the amount of the unpaid balance due to the contractor from the purchaser/owner.” Buckner v. Alpha Lumber & Supply Co., 628 So.2d 450, 452 (Ala.1993). It is undisputed that the Gunthers paid the full amount due to Antioch, their contractor, and, therefore, Carpet Systems has not sought an unpaid-balance lien.

      . According to allegations by the Gunthers in their motions filed in the trial court, a number of subcontractors, including Carpet Systems, asserted claims against them, but the other subcontractors' claims were dismissed.

      . The portion of Beyl’s affidavit not based on his personal knowledge is discussed later in this opinion as part of the discussion pertaining to the authentification of certain documents submitted by Carpet Systems.

      . The Gunthers argue in their brief on appeal that they presented evidence of having paid for the flooring from Carpet Systems in June 2009, well before the September 22, 2009, notification. In asserting that argument, the Gunthers cite Gunther’s testimony that, in June 2009, the Gunthers made a large payment to Antioch and that Antioch had designated that payment as covering, among other things, the costs of flooring. The Gunthers have cited no authority for the proposition that a payment to a general contract that the general contractor purports is to cover the cost of a certain materialman's labor and materials equates to a payment to that materi-alman for the purposes of § 35-11-210. Accordingly, we decline to attribute the payment the Gunthers made to their contractor as having been made to Carpet Systems.

      . In support of their position on the competing summary-judgment motions, the Gunthers did not present any evidence indicating that the items purchased separately by them on September 9, 2009, were part of the order or purchase for which Carpet Systems asserts its claim of a $40,650 lien. The evidence presented by Carpet Systems contains no reference to that previous transaction.

      .The Gunthers also argue that labor was provided before they received the September 22, 2009, notification because Beyl worked to measure the house for the flooring installation before September 22, 2009. We need not reach Carpet Systems' argument that that labor did not benefit the Gunthers’ house or realty. The Gunthers presented no evidence indicating that Carpet Systems included the cost of the labor needed to provide an estimate of the project cost or the amount of materials needed in its claim. Rather, we conclude that, assuming that work or labor undertaken to determine the cost of the proposed project or the amount of materials needed to complete the requested project is not included in the amount of the claimed lien, such work or labor does not operate to defeat a claim under § 35-11-210. To hold otherwise would prevent a materialman from having the ability to accurately assess a project or provide an estimate of its charges in providing goods and services.


author: DONALDSON, Judge.

text:
    J.B.M. v. J.C.M.
    2120165 and 2120166.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.

      Larry W. Madison, Hartselle, for appellant.
    Michael D. Haynes, Cullman, for appel-lee.
   DONALDSON, Judge.

J.B.M. (“the father”), the biological father of W.M. and B.M. (“the children”), appeals from orders of the Cullman Probate Court (“the probate court”), disposing of his postjudgment motions seeking relief from judgments entered by the probate court on July 18, 2012, granting the petitions of J.C.M. (“the stepfather”), the children’s stepfather, to adopt the children. We dismiss the appeals in part, reverse the probate court’s order of October 12, 2012, dismissing the father’s second post-judgment motion, and remand the cases to the probate court for it to consider the father’s second postjudgment motion.

The father and M.M. (“the mother”), the mother of the children, were divorced by judgment of the Cullman Circuit Court in April 2008. As a part of an agreement incorporated into the divorce judgment, the mother and the father were awarded joint legal custody of the children, the mother was awarded primary physical custody, and the father was granted visitation rights. The father also agreed to pay child support. The divorce judgment was subsequently modified in August 2011 on a petition for a rule nisi filed by the mother, and the circuit court awarded the mother sole legal custody of the children subject to the father’s visitation rights.

The mother subsequently married the stepfather. On April 17, 2012, the stepfather filed petitions in the probate court to adopt the children. The mother submitted her written consent to the stepfather’s adopting of the children. The petitions alleged that the father had abandoned the children and thereby had given implied consent to the adoptions pursuant to § 26-10A-9, Ala.Code 1975. The petitions also stated that “there exist no other orders of Court regarding custody, visitation or access to the adoptee.”

The record reveals that the father was served with notice of each petition by certified mail on May 18, 2012. The notices specifically stated that the father “must file any objection to the petition with the court on or before the 18th day of July [sic], 2012.” The probate court appointed a guardian ad litem for the children. The guardian ad litem subsequently submitted a report stating that the children had not seen or had any contact with the father in over a year and that the father had not paid child support since April 2011. The probate court set the matter for a hearing on July 18, 2012. Other than the notices establishing a July 18, 2012, deadline for the father to object, there is nothing in the record to indicate that the father was provided with notice of the hearing date. The father did not answer, object to, or otherwise respond to the petitions. The father failed to appear at the hearing on July 18, 2012. On that date, the probate court entered final judgments granting the stepfather’s petitions to adopt the children and terminating the father’s parental rights to the children.

In the months following the entry of the judgments, the father filed three separate postjudgment motions to set aside the probate court’s July 18, 2012, judgments. On or about August 31, 2012, the father, through counsel, filed his first post-judgment motion in both cases, styled as a “Verified Motion to Amend, Alter or Vacate the Probate Court Judgment.” In the body of the motion, the father stated that he was seeking relief under Rule 59 and Rule 60, Ala. R. Civ. P. He contended that he never received notice of the July 18, 2012, hearing and that he had been under the impression that the stepfather’s attorney or the guardian ad litem would contact him. He made reference to the divorce judgment, which, as amended, granted him visitation rights to the children, asserted that the mother was denying his visitation rights, and attached a copy of the August 2011 judgment modifying the divorce judgment. He contended that he had learned of the probate court’s adoption judgment when he was exploring whether to petition the circuit court to enforce or modify the divorce judgment concerning the issue of visitation. He did not raise fraud as an issue in his first postjudgment motion. The father also attached to his first post-judgment motion other exhibits, including a letter from his attorney to the stepfather’s attorney dated April 10, 2012, in which his attorney stated, among other things, that the father would not sign the consent-to-adoption forms. On September 5, 2012, the stepfather filed a response to the father’s motion, in which he contended that the father had failed to notify the stepfather’s counsel or the court regarding an objection to the adoption petitions. The stepfather further asserted that the father’s motion was untimely under Rule 59, Ala. R. Civ. P. In reply, the father argued that he was seeking relief not only under Rule 59, but also under Rule 60. Without holding a hearing, the probate court entered an order in both cases on September 17, 2012, denying the father’s first postjudgment motion.

On September 26, 2012, the father filed a second postjudgment motion in both cases, styled as a “Rule 60(b) Motion for Relief from Judgment,” in which he contended that the petitions for adoption filed by the stepfather inaccurately stated that “there exist no other orders of Court regarding custody, visitation or access to the adoptee.” The father specifically asserted in his second postjudgment motion that that assertion by the stepfather constituted a fraud upon the court, thus rendering the adoption judgments void. The stepfather responded by contending that the September 26, 2012, motion was a successive Rule 60(b) motion and, thus, could not be considered by the probate court. The probate court apparently agreed and dismissed the September 26 postjudgment motion on October 12, 2012, without conducting a hearing. In the dismissal order, the probate court stated that it lacked jurisdiction to consider any further Rule 60(b) motions because it had denied the father’s first Rule 60(b) motion.

On October 31, 2012, the father filed a “motion to amend, alter or vacate” the probate court’s October 12, 2012, order dismissing the September 26 postjudgment motion. The father argued that the October 12, 2012, order was due to be set aside because he had raised for the first time in the September 26 motion the issue of fraud upon the court, which was a separate and distinct issue from the issue of lack of notice that he had raised in his first post-judgment motion. The probate court denied the third postjudgment motion on November 2, 2012.

The father filed notices of appeal to this court on November 16, 2012. This court has consolidated the appeals ex mero motu. On appeal, the father contends that the probate court committed reversible error by failing to hold a hearing on the father’s postjudgment motions. The father also contends that the probate court exceeded its discretion by not granting his motions to set aside the adoption judgments. He asks that the orders of the probate court be reversed or, in the alternative, that these cases be remanded to the probate court for a hearing.

The stepfather contends that this court lacks jurisdiction to consider the merits of the father’s appeals because the father filed untimely notices of appeal from the probate court’s rulings on his postjudgment motions. The underlying judgments in this case are for adoption of the children. Pursuant to § 26-10A-26(a), Ala.Code 1975, “[ajppeals from any final decree of adoption shall be taken to the Alabama Court of Civil Appeals and filed within 14 days from the final decree.” Pursuant to Rule 4(a)(3), Ala. R.App. P., a postjudgment motion timely filed pursuant to Rules 50, 52, 55, or 59 of the Alabama Rules of Civil Procedure suspends the running of the time for filing a notice of appeal. As our supreme court noted in Ex parte A.M.P., 997 So.2d 1008 (Ala.2008):

“Section 26-10A-26, Ala.Code 1975, a part of the Alabama Adoption Code, provides that an appeal shall be filed within 14 days of the final order of adoption. Section 26-10A-37 provides that the Alabama Rules of Civil Procedure apply to the probate court in adoption proceedings to the extent that they apply under § 12-13-12, Ala.Code 1975. Section 12-13-12 provides that in the absence of express provisions to the contrary, provisions of the Code relating to pleading, practice, evidence, and judgments and orders in the circuit court shall apply in the probate court. The great-uncle and great-aunt timely filed a postjudgment motion. That motion was denied by operation of law. The notice of appeal was thus timely filed under the Alabama Rules of Civil Procedure. The Court of Civil Appeals has addressed the merits in appeals in adoption cases from the probate court where a party has filed a postjudgment motion. See In re J.C.P., 871 So.2d 831 (Ala.Civ.App.2002) (the putative father filed a post-judgment motion, which was denied by operation of law, and the father subsequently appealed the final order of adoption); J.B. v. F.B., 929 So.2d 1023 (Ala.Civ.App.2005) (following the denial of his postjudgment motion, the father appealed from the judgment of the probate court granting the adoption petition).”

997 So.2d at 1013 n. 3. A postjudgment motion filed pursuant to Rule 60(b), Ala. R. Civ. P., does not “toll the time for taking an appeal from the underlying judgment.” Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001). However, a denial of a postjudgment motion filed pursuant to Rule 60(b) “is, under Alabama law, itself a final judgment that will independently support an appeal.” Food World v. Carey, 980 So.2d 404, 406 (Ala.Civ.App.2007).

The plain text of § 26-10A-26(a) provides that an aggrieved party has 14 days to file an appeal from the final judgment of adoption. The denial of a Rule 60(b) motion pertaining to a case governed by the Alabama Adoption Code is not a final judgment of adoption from which an appeal must be taken within 14 days. Rather, it is a separate final judgment from which an appeal lies and to which the 14-day prescriptive period of § 26-10A-26(a) does not apply. Therefore, the period for filing a notice of appeal from the denial of a Rule 60(b) motion pertaining to an adoption proceeding before the probate court is 42 days pursuant to Rule 4(a)(1), Ala. R.App. P.

As noted, the father filed three separate postjudgment motions pertaining to both cases, which the probate court ruled were successive postjudgment motions. The stepfather contends that the motions were successive postjudgment motions, that the probate court lacked jurisdiction to consider the second and third motions, and that, as a result, the father’s appeals are untimely.

“As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), ‘[ajfter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179,182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’) .... ”

Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005). The general rule against successive Rule 60(b) motions does not apply when a subsequent Rule 60(b) motion raises new grounds upon which a judgment could be set aside. See E.S.R, Jr. v. Madison Cnty. Dep’t of Human Res., 11 So.3d 227, 230 n. 2 (Ala.Civ.App. 2008); see also McLendon v. Hepburn, 876 So.2d 479, 483 (Ala.Civ.App.2003).

In his first postjudgment motion, filed on August 31, 2012, the father alleged that he did not receive notice of the hearing and therefore that the July 18, 2012, adoption judgments were due to be set aside. The body of the motion requested relief from the adoption judgments under Rule 59 and Rule 60(b). On appeal, the father also contends that, because he did not appear at the hearing, his first post-judgment motion could be viewed as a motion to set aside default judgments pursuant to Rule 55(c), Ala. R. Civ. P., which is “the proper vehicle for requesting a trial court to set aside a default judgment....” Williams v. Williams, 70 So.3d 332, 333 (Ala.Civ.App.2009). “Both a Rule 59(e) and a Rule 55(c) motion, however, must be filed within 30 days of the judgment being challenged. See Rule 59(b), Ala. R. Civ. P., and Rule 55(c).” Id. The father’s first postjudgment motion was filed more than 30 days after the probate court’s adoption judgments were entered and was therefore not a timely motion under either Rule 59(e) or Rule 55(c). The father’s first postjudgment motion, however, can be properly construed as a Rule 60(b) motion for relief from the default. Id. (citing Ex parte King, 776 So.2d 31, 35 (Ala.2000)); see also Committee Comments on 1973 Adoption of Rule 55, Ala. R. Civ. P.(“Rule 60 becomes available when more than thirty days has passed since the entry of the judgment by default.”). The probate court entered an order denying the first post-judgment motion on September 17, 2012, without holding a hearing and without specifying a reason for the denial. The father did not appeal the denial of the first postjudgment motion until November 16, 2012, which is more than 42 days after the probate court’s denial of the motion. Because the appeals are untimely as to the first Rule 60(b) motion, this court lacks jurisdiction to consider the merits of the father’s appeals as to his first post-judgment motion. Accordingly, the father’s appeals are dismissed insofar as they pertain to his first postjudgment motion.

In his second postjudgment motion, the father argued for the first time that the probate court’s adoption judgments were due to be set aside because, the father argued, the stepfather perpetrated a “fraud upon the court” by asserting in the adoption petition that “there exist no other orders of Court regarding custody, visitation or access to the adop-tee.” The motion was filed within the four-month period prescribed by Rule 60(b). Compared to the first post-judgment motion, the second post-judgment motion raised an entirely new ground upon which the adoption judgments could potentially be set aside; therefore, the second motion was not a successive postjudgment motion in relation to the first postjudgment motion. The probate court, however, ruled that the second postjudgment motion was successive. Without addressing the merits of the motion or holding a hearing, the probate court erroneously dismissed the second postjudgment motion for lack of jurisdiction on October 12, 2012.

The third postjudgment motion, however, is a successive motion. In the third postjudgment motion, the father requested that the probate court, pursuant to Rule 59, alter, amend, or vacate the October 12 order dismissing the second motion on the basis that the second post-judgment motion was based on an entirely different ground than the first post-judgment motion. Stated otherwise, the third postjudgment motion is nothing more than attempt to have the probate court reconsider its order dismissing the second postjudgment motion.

“After a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.”

Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998). The father’s third postjudgment motion, therefore, did not toll the time for filing of a notice of appeal.

Nonetheless, as they relate to the second postjudgment motion, the father’s notices of appeal to this court were timely. The probate court’s order of October 12, 2012, dismissing the father’s second post-judgment motion was a final judgment that would independently support the appeals. Food World, 980 So.2d at 406. Pursuant to Rule 4(a)(1), Ala. R.App. P., the father had 42 days to file notices of appeal from the dismissal of the second postjudgment motion. The notices of appeal were filed on November 16, 2012, 35 days after the date of the final, appealable order. Therefore, the appeals, insofar as they pertain to the father’s second postjudgment motion, are properly before this court.

On appeal, the father asserts that the probate court erred in not holding a hearing on his second postjudgment motion. We note that “[tjhere is no ... procedural requirement that a hearing be held on a Rule 60(b) motion, even if one is requested by the movant; indeed, no such hearing need be held if the motion is clearly without substance and frivolous.” Summers v. Summers, 89 So.3d 141, 143 (Ala.Civ.App.2011) (citing Waldron v. Fikes, 378 So.2d 1138, 1139 (Ala.Civ.App.1979)); see also Snooky Hairrell Volkswagen, Inc. v. Speer, 689 So.2d 51, 53 (Ala.1997), Bradford v. Bradford, 628 So.2d 732, 734 (Ala.Civ.App.1993), and Ex parte Oden, 617 So.2d 1020, 1028 (Ala.1992) (holding that a party might be entitled to a hearing on a Rule 60(b) motion when the party presents evidence of extraordinary circumstances to support a reversal of the judgment). Based on the record, the probate court did not conduct a review of the contents of the motion asserting that a fraud had been committed in the stepfather’s petitions for adoption. As noted above, the probate court, instead, dismissed the father’s second postjudgment motion without considering the motion at all on the basis that, the court believed, it did not have jurisdiction to entertain the second motion. Because we have determined that the probate court had jurisdiction to consider the second postjudgment motion, we reverse the probate court’s order dismissing the father’s second postjudgment motion and remand the cause to the probate court to consider the assertions in the second motion, whether those assertions warrant a hearing, and, if so, whether relief should be granted. In assessing the merits of the father’s second postjudgment motion, the probate court shall make a determination as to whether the father has “presented evidence of extraordinary circumstances and of diligence sufficient to warrant a hearing on [his] Rule 60(b)[] motion for relief’ from the probate court’s judgments. Speer, 689 So.2d at 54. The order dismissing the father’s second Rule 60(b) post-judgment motion is reversed, and the cause is remanded to the probate court for proceedings consistent with this opinion.

2120165 — APPEAL DISMISSED IN PART; ORDER OF OCTOBER 12, 2012, REVERSED; AND CAUSE REMANDED.

2120166 — APPEAL DISMISSED IN PART; ORDER OF OCTOBER 12, 2012, REVERSED; AND CAUSE REMANDED.

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

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

THOMAS, J., recuses herself.

      . Pursuant to § 26-10A-7, Ala.Code 1975, a child’s presumed father must provide consent to the adoption of the child. Section 26-10A-9, concerning implied consent, provides, in pertinent part:
      "(a) A consent or relinquishment required by Section 26-1OA-7 may be implied by any of the following acts of a parent:
      "(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.

      "(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
      "(4) Receiving notification of the pen-dency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.

      . We note that § 26-10A-17(b), Ala.Code 1975, states, in pertinent part, that "[t]he notice [of pendency of the adoption proceeding] shall specifically state that the person served must respond to the petitioner within 30 days if he or she intends to contest the adoption.”

      . Based upon the exhibits attached to the father’s first postjudgment motion, it is unclear whether the father was represented by counsel during the period between the time of the April 10, 2012, letter and the time of the filing of the first postjudgment motion on August 31, 2012.

      . Rule 4(a)(1), Ala. R.App. P., provides, with limited exceptions, that a notice of appeal to this court must be filed within 42 days of the date of the entry of the judgment appealed from.

      . Rule 60(b)(3) allows "the court [to] relieve a party ... from a final judgment ... for ... fraud ..., misrepresentation, or other misconduct of an adverse party.” To the extent that the father claims that the stepfather’s assertions in the petitions constituted a "fraud upon the court,” we note that mere misrepresentations by a party are insufficient to demonstrate "fraud upon the court”:
      " '[The supreme court] has defined "fraud upon the court” as that species of fraud that defiles or attempts to defile the court itself or that is a fraud perpetrated by an officer of the court, and it does not include fraud among the parties, without more.’ Waters v. Jolly, 582 So.2d 1048, 1055 (Ala.1991) (citing Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977), and Spindlow v. Spindlow, 512 So.2d 918 (Ala.Civ.App.1987)). Black’s Law Dictionary 686 (8th ed. 2004) defines 'fraud on the court' as follows: 'In a judicial proceeding, a lawyer’s or party’s misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding.’ See Ex parte Free, 910 So.2d 753 (Ala.2005). The cases in which fraud on the court has been found, for the most part, have been cases in which there was 'the most egregious conduct involving a corruption of the judicial process itself,' such as the bribery of a judge or the employment of counsel to improperly influence the court. 11 Charles A. Wright et al., Federal Practice & Procedure Civ.2d § 2870 (1995).”

        Christian v. Murray, 915 So.2d 23, 28 (Ala.2005).

      . Pursuant to § 26-10A-25(d), Ala.Code 1975, "[a] final decree of adoption may not be collaterally attacked, except in cases of fraud or where the adoptee has been kidnapped, after the expiration of one year from the entry of the final decree and after all appeals, if any.”