author: SEE, Justice.

text:
    FLYING J FISH FARM et al. v. PEOPLES BANK OF GREENSBORO et al. Peoples Bank of Greensboro et al. v. Flying J Fish Farm et al. Flying J Fish Farm et al. v. Alabama Catfish, Inc., d/b/a Harvest Select.
    1061833, 1070120, and 1070140.
    Supreme Court of Alabama.
    Oct. 24, 2008.
    Rehearing Applications Denied Jan. 9, 2009.

      Brenton K. Morris and Lee R. Benton of Benton & Centeno, LLP, Birmingham, for appellants/cross-appellees Flying J Fish Farm, Charles Jay, Laurie Jay, and Anne Jay.
    James W. Gewin, Charles M. Ferguson, Jr., and John C. Neiman, Jr., of Bradley Arant Rose & White, LLP, Birmingham; and Robert H. Turner, Marion, for appellants/cross-appellees Peoples Bank of Greensboro, C. Reid Lawson, Jr., Edna Kynard, John Ferguson, B.W. Coleman, Mickey Harrow, and J.W. Kynard.
    James J. Jenkins of Phelps, Jenkins, Gibson & Fowler, LLP, Tuscaloosa, for appellee Alabama Catfish, Inc., d/b/a Harvest Select.
    H. Hampton Boles, W. Clark Watson, and Paul H. Greenwood of Balch & Bing-ham, LLP, Birmingham for amicus curiae Alabama Bankers Association, in support of the appellants/cross-appellees Peoples Bank of Greensboro, C. Reid Lawson, Jr., Edna Kynard, John Ferguson, B.W. Coleman, Mickey Harrow, and J.W. Kynard.
   SEE, Justice.

Flying J Fish Farm, Charles Jay, and Charles’s mother Anne Jay (hereinafter referred to collectively as “the Jays”) and Renee Laurie Jay (“Renee”), Charles’s wife, appeal from a summary judgment in favor of Peoples Bank of Greensboro (“Peoples Bank”), its directors, Wynne Coleman, and C. Reid Lawson, Jr. (hereinafter referred to collectively as “the Peoples Bank defendants”), on the Jays’ claims of breach of fiduciary duty, suppression, deceit, unjust enrichment, and conspiracy and on Renee’s claim of loss of consortium (case no. 1061833). The Jays and Renee also appeal from a summary judgment in favor of Alabama Catfish, Inc., d/b/a Harvest Select (“Alabama Catfish”), on all of their claims against it (case no. 1070140). The Peoples Bank defendants cross-appeal, pursuant to Rule 5, Ala. R.App. P., from the trial court’s denial of their motion for a summary judgment on the Jays’ negligence and/or wantonness and negligent- and/or wanton-supervision claims (case no. 1070120). We affirm in case no. 1061833 and case no. 1070140, and we reverse and remand in case no. 1070120.

Facts and Procedural History

The Jays entered the catfish-farming business around 1994. At that time Charles Jay met with Wynne Coleman, a loan officer at Peoples Bank, to secure financing for the business venture, which was named the Flying J Fish Farm. Coleman initially refused to provide financing for the venture because Charles could not offer collateral to guarantee the loan. Charles returned to the bank with Anne, and, based on her personal guarantee, Coleman agreed to provide financing for the Flying J Fish Farm. Coleman renewed and modified the loan each year in order to finance the continuing operations and the expansion of the Flying J Fish Farm, until his retirement in 1998. Upon Coleman’s retirement, C. Reid Lawson, Jr., took over as the Jays’ loan officer at Peoples Bank, and he continued to renew and to modify the Jays’ loan until the Jays left the catfish-farming business in 2003. By that time, the Jays owed Peoples Bank $640,000. Anne Jay sold some timberland to satisfy her personal guarantee of the loan.

Coleman, and later Lawson, had met with the Jays each year while they were operating the Flying J Fish Farm to discuss their loan. Based on his own experience in the catfish-farming business, Lawson offered suggestions to the Jays on ways they could improve the operation and financial condition of their catfish farm.

Alabama Catfish is one of two main catfish-processing businesses located in the area in which the Flying J Fish Farm operated; the other is Southern Pride Fish, LLC. Alabama Catfish and Southern Pride employ tasters who determine whether catfish are “on flavor” or “off flavor” at the time of harvest. The processors will refuse to accept catfish that they determine are “off flavor” and that, therefore, cannot be sold to customers. All catfish farmers have periodic issues with “off flavor” fish.

Coleman and Lawson were both shareholders in Alabama Catfish while they were acting as the Jays’ loan officer, but they did not disclose that fact to the Jays. Charles regularly offered to sell his fish to Alabama Catfish, and Lawson encouraged him to do so. Charles did not have a contract with either Alabama Catfish or with Southern Pride. He initially focused his catfish-selling efforts on Alabama Catfish, partly based on Lawson’s advice and experience. The Jays’ catfish were often refused by Alabama Catfish as being “off flavor.”

In 1999, Alabama Catfish began building catfish ponds of its own, with the goal of providing all the catfish for the processing plant from its own ponds or the ponds of its shareholders. This action, combined with a declining market, prompted Charles to shift the focus of his sales efforts to Southern Pride. He experienced difficulties similar to those he had experienced in trying to sell his catfish to Alabama Catfish. In January 1999, George Smelley, president of Alabama Catfish, sent a letter to the catfish farmers with whom it did business informing them that he, along with Paul Bryant and Lawson, had purchased Alabama Catfish. The Jays deny that they received the letter; however, they rely on the information in that letter to support their allegation that Alabama Catfish suppressed material information regarding its decision to increase the proportion of catfish raised by Alabama Catfish supplying its processing plant.

The Jays sued the Peoples Bank defendants and Alabama Catfish in the Hale Circuit Court, alleging, in their complaint as finally amended, (1) that Peoples Bank, Lawson, and Alabama Catfish had breached a fiduciary duty, (2) that the Peoples Bank defendants and Alabama Catfish, in violation of § 6-5-102, Ala.Code 1975, had suppressed material facts, (3) that Lawson, Peoples Bank, its directors, and Alabama Catfish, in violation of § 6-5-103, Ala.Code 1975, had deceived the Jays regarding material facts, (4) that the Peoples Bank defendants and Alabama Catfish were unjustly enriched at the Jays’ expense, (5) that the Peoples Bank defendants and Alabama Catfish were negligent and/or wanton in their dealings with the Jays, (6) that Peoples Bank and its directors had negligently and/or wantonly supervised Lawson, (7) that the Peoples Bank defendants and Alabama Catfish conspired to commit the aforementioned tortious acts, and (8) that, as a result of the actions of the Peoples Bank defendants and Alabama Catfish, Renee had suffered a loss of Charles’s consortium. The Peoples Bank defendants and Alabama Catfish each moved for a summary judgment on all the Jays’ claims and Renee’s loss-of-consortium claim. The trial court entered a summary judgment for Alabama Catfish on all claims and, in a separate order, for the Peoples Bank defendants on all claims except for the claims alleging negligence and/or wantonness and negligent and/or wanton supervision. This Court consolidated the Jays’ and Renee’s appeals of the trial court’s summary judgments with the permissive cross-appeal filed by the Peoples Bank defendants of the order denying summary judgment on the Jays’ negligence and/or wantonness and negligent- and/or wanton-supervision claims for the purpose of writing one opinion.

Issues

The issues presented are whether the trial court erred in entering a summary judgment in favor of the Peoples Bank defendants on the Jays’ breach-of-fiduciary-duty, suppression, deceit, unjust-enrichment, and conspiracy claims and on Renee’s loss-of-consortium claim; whether the trial court erred in entering a summary judgment in favor of Alabama Catfish on all the Jays’ claims and on Renee’s loss-of-consortium claim; and whether the trial court erred in denying the motion for a summary judgment filed by the Peoples Bank defendants on the Jays’ negligence and/or wantonness and negligent- and/or wanton-supervision claims.

Standard of Review

“ ‘ “On appeal, this Court reviews a summary judgment de novo.” DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.2d 454, 459 (Ala.2008) (citing Ex parte Essary, 992 So.2d 5, 8 (Ala.2007)). In order to uphold a summary judgment, we must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. “When the movant makes a prima facie showing that those two conditions have been satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.” Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952 (Ala.2004). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmovant. Johnny Ray Sports, Inc. v. Wachovia Bank, 982 So.2d 1067, 1071 (Ala.2007). “Finally, this Court does not afford any presumption of correctness to the trial court’s ruling on questions of law or its conclusion as to the appropriate legal standard to be applied.” DiBiasi, 988 So.2d at 459.’
“Catrett v. Baldwin County Elec. Membership Corp., 996 So.2d 196, 199 (Ala.2008).”

Moon v. Pillion, 2 So.3d 842, 845 (Ala.2008).

Analysis

I. Breach of Fiduciary Duty

The Jays allege that the trial court erred in entering a summary judgment in favor of Peoples Bank, Lawson, and Alabama Catfish on the Jays’ breach-of-fiduciary-duty claim.

“Courts have traditionally viewed the relationship between a bank and its customer as a creditor-debtor relationship that does not impose a fiduciary duty on the bank. See Power Equipment Co. v. First Alabama Bank, 585 So.2d 1291 (Ala.1991); Faith, Hope & Love, Inc. v. First Alabama Bank of Talladega County, N.A., 496 So.2d 708 (Ala.1986). However, a fiduciary duty may arise when the customer reposes trust in the bank and relies on the bank for financial advice, or in other special circumstances. Bank of Red Bay v. King, 482 So.2d 274 (Ala.1985); Baylor v. Jordan, 445 So.2d 254 (Ala.1984).”

K & C Dev. Corp. v. AmSouth Bank, 597 So.2d 671, 675 (Ala.1992). Advice alone, however, is not enough to impose a fiduciary duty. Even where the bank has taken an active role in attempting to improve a debtor company’s financial position, this Court has not found a fiduciary relationship. See Nettles v. First Nat'l Bank of Birmingham, 388 So.2d 916, 920 (Ala.1980) (holding that no fiduciary relationship existed where bank “caused various documents to be prepared, made additional secured loans, and kept close tabs on the Company’s operation. Notwithstanding this active role, the essential relationship between the parties remained that of debt- or-creditor, and the parties dealt with each other at arm’s length.”).

Lawson, based on his extensive experience in the catfish-farming business, offered the Jays advice on how to improve the operation of their catfish farm, advice the Jays were free to disregard. The Jays cite Lawson’s “superior knowledge” in the catfish industry as a basis for the formation of a fiduciary duty. However, the fact that the Jays respected Lawson’s opinion and accepted his advice does not supply the basis for the formation of a fiduciary relationship between the Jays and Lawson or Peoples Bank. See Nettles, 388 So.2d at 921 (“[T]he fact that appellant ... repose[d] great confidence in appellees’ ability to save his business and that he acquiesced in their recommendations, ultimately to his financial detriment, does not serve to establish some special fiduciary relationship .... ”).

The Jays also allege that Lawson exerted an “overmastering influence” over the Jays, but they do not offer facts that support this assertion. Anne Jay testified that Lawson urged her and Charles to expand their catfish farm “year after year,” yet the record shows that the Jays added their last pond in 1999, shortly after Lawson took over as their loan officer. The Jays also allege that Lawson exerted an “overmastering influence” by advising them to focus their sales efforts on Alabama Catfish, and not on Southern Pride. However, in late 2000, the Jays began to focus their sales efforts on Southern Pride.

The Jays did not present substantial evidence indicating that they had a fiduciary relationship with Peoples Bank or Lawson; therefore, we affirm the summary judgment in favor of Peoples Bank and Lawson on this claim.

The Jays also allege a breach of fiduciary duty on the part of Alabama Catfish. The Jays allege that because Lawson was a director of Alabama Catfish, his actions as a loan officer for Peoples Bank not only created a fiduciary duty on the part of Peoples Bank, but also extended that duty to Alabama Catfish. For the same reasons that we hold that Lawson’s actions did not create a fiduciary relationship with Peoples Bank, we also conclude that there was no fiduciary relationship between the Jays and Alabama Catfish. Therefore, we affirm the summary judgment in favor of Alabama Catfish on this claim.

II. Suppression and Deceit

The Jays allege that the trial court erred in entering a summary judgment in favor of the Peoples Bank defendants and Alabama Catfish on the Jays’ suppression and deceit claims.

“In order to establish a cause of action for fraudulent suppression, the plaintiff must show 1) that the defendant had a duty to disclose material facts, 2) that the defendant concealed or failed to disclose those facts, 3) that the concealment or failure to disclose induced the plaintiff to act; and 4) that the defendant’s action resulted in harm to the plaintiff. Interstate Truck Leasing, Inc. v. Bender, 608 So.2d 716 (Ala.1992). A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of a duty to disclose is not fraudulent. Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So.2d 1288 (Ala.1993); Hardy v. Blue Cross & Blue Shield of Alabama, 585 So.2d 29 (Ala.1991); King v. National Foundation Life Ins. Co., 541 So.2d 502 (Ala.1989); [s]ee, McGowan v. Chrysler Corp., 631 So.2d 842 (Ala.1993); Ala.Code 1975, § 6-5-102.”

Jewell v. Seaboard Indus., Inc., 667 So.2d 653, 658 (Ala.1995).

The Jays argue that “[t]he question as to whether a duty to disclose exists is for the jury,” citing Liberty National Life Insurance Co. v. McAllister, 675 So.2d 1292, 1296 (Ala.1995). However, as we explained in State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834, 840 (Ala.1998):

“The judge should decide whether, assuming as truth all of the plaintiffs factual assertions, they are sufficient to give rise to a legal duty. If, even presuming that all of the plaintiffs facts are true, the judge determines that, as a matter of law, no duty was owed, then a summary judgment ... is appropriate.”

The Jays allege that the Peoples Bank defendants and Alabama Catfish had superior knowledge, i.e., they knew Coleman and Lawson were both loan officers at Peoples Bank and principals in Alabama Catfish, and they note that this Court has stated: “[W]hen one party has superior knowledge of a fact that is unknown to the other party, and the lack of knowledge will induce the other party to act in a manner in which he otherwise might not act, the obligation to disclose is ‘particularly compelling.’” McAllister, 675 So.2d at 1296 (citing Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)). However, “ ‘[sjuperior knowledge of a fact, without more, does not impose upon a party a legal duty to disclose such information.’ ” Stale Farm Fire & Cas. Co., 729 So.2d at 843 (quoting Surrett v. TIG Premier Ins. Co., 869 F.Supp. 919, 925 (M.D.Ala.1994)).

The Jays allege that the “existence of confidential and fiduciary relations and special circumstances” gave rise to a duty to disclose. They also allege that “under the law of Alabama” Coleman and Lawson, because of their superior knowledge of material facts under “all the circumstances,” were required to disclose to the Jays certain facts regarding Coleman and Lawson’s relationship with Alabama Catfish. However, the Jays do not support their allegations with citations to caselaw or to other authority. “ ‘Where an appellant fails to cite an authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.’ ” Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). Moreover, we have already held that Peoples Bank, Lawson, and Alabama Catfish were not involved in a fiduciary relationship with the Jays. Therefore, the Jays did not present substantial evidence indicating that the Peoples Bank defendants or Alabama Catfish was under any duty to disclose material facts, and we affirm the summary judgment on these claims.

III. Unjust Enrichment

The Jays allege that the trial court erred in entering a summary judgment in favor of the Peoples Bank defendants and Alabama Catfish on the Jays’ unjust-enrichment claim. To succeed on a claim of unjust enrichment, the plaintiff must show that

“ ‘the “ ‘defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.’” Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancoclo-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)).... “The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.” Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989).’ ”

Mantiply v. Mantiply, 951 So.2d 638, 654 (Ala.2006) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala. 2003)).

The Jays base their unjust-enrichment claim on unspecified “legal arguments and references to the record that are contained in the other sections of this brief.” Jays’ brief, p. 73. Because we hold that the trial court properly entered a summary judgment in favor of the Peoples Bank defendants and Alabama Catfish on the Jays’ breach-of-fidueiary-duty, suppression, and deceit claims, the Jays cannot show that they paid any moneys to Peoples Bank or to Alabama Catfish because of mistake or fraud, and their claim of unjust enrichment is without merit. Therefore, we affirm the summary judgment for the Peoples Bank defendants and Alabama Catfish on this claim.

IV. Negligence and/or Wantonness

The Peoples Bank defendants allege that the trial court erred in not entering a summary judgment in their favor on the Jays’ negligence and/or wantonness claim. In its order certifying its ruling on this issue as appropriate for permissive appeal under Rule 5, Ala. R.App. P., the trial court stated the controlling question of law as follows:

“Whether [the Peoples Bank defendants] can be liable to the Bank’s customers for negligence or wantonness on the theory that the Bank loaned those customers money for use in their business when both the Bank and those customers appreciated that there was a substantial risk that revenues from the business would not be sufficient to repay the loans.”

This appears to be a question of first impression for this Court. We agree with the courts in other jurisdictions that have answered this question in the negative as to negligence. See FDIC v. Fordham (In re Fordham), 130 B.R. 632, 646 (Bankr.D.Mass.1991) (“A lender, moreover, owes to its borrower or guarantor no duty to use reasonable care to determine that a project is sufficiently feasible to permit repayment of the loan.”); see also Commercial Nat’l Bank in Shreveport v. Audubon Meadow P’ship, 566 So.2d 1136, 1140 (La.Ct.App.1990) (“To impose such requirements would significantly alter the relationship between banks and those with whom they deal. In effect, it would impose liability upon banks for business failures arising through ventures they financed.”); Wagner v. Benson, 101 Cal.App.3d 27, 35, 161 Cal.Rptr. 516, 521 (1980) (“[T]he Wagners allege they suffered substantial foreseeable harm from the Bank’s negligence in loaning money to them, as inexperienced investors, for a risky venture over which the Bank exercised influence and control. However, the Bank owes no duty of care to the Wagners in approving their loan.”). The Jays made the decision to start a catfish-farming business; they applied for and received a loan with the anticipation that they stood to profit if the business succeeded and that they could be exposed to economic loss should the business fail. The Peoples Bank defendants should not now be made insurers of their business decisions. See Gries v. First Wisconsin Nat’l Bank of Milwaukee, 82 Wisc.2d 774, 780, 264 N.W.2d 254, 257 (1978) (“[The plaintiffs] called the bank; they prepared a proposal; they applied for the loan; they invested the money in the business. Although the failure of the business is unfortunate for both the plaintiffs and the bank, it was a risk which the plaintiffs assumed, and which can not be shifted to the bank.”).

The Jays cite two cases in which this Court has held a bank liable under a negligence theory; however, both cases are distinguishable. In Schoen v. Gulledge, 481 So.2d 1094 (Ala.1985), this Court concluded that the loan officer had a duty to recommend only sound loans. The loan officer in Schoen held a one-half interest in the property Schoen wanted to purchase and allegedly purposely misstated Schoen’s cash flow so that he would qualify for the loan. Schoen was unable to pay the first installment of his loan. Schoen, 481 So.2d at 1096. Thus, there was not just a risk that Schoen could not repay the loan; it was virtually certain that he could not. In this case, the evidence, if any, indicating that Coleman or Lawson purposely misstated the Jays’ potential for success or that it was a near certainty that they could not repay their loan is not substantial. In fact, the Jays ran their business, with varying degrees of success, for nearly 10 years.

In Patrick v. Union State Bank, 681 So.2d 1364 (Ala.1996), the other case the Jays cite, this Court held that a bank owed a customer a duty of due care in applying its procedures in opening cheeking accounts. In Patrick, an imposter opened a checking account in Patrick’s name after the bank failed to follow its identification procedures and safeguards in opening the account. The imposter wrote several bad checks, causing arrest warrants to be issued for Patrick in 11 jurisdictions. In imposing a duty on the bank, this Court stated that the bank was in the best position to prevent the fraud that injured Patrick, that the nature of the harm — arrest for writing bad checks — was foreseeable, and that it was commercially reasonable for the bank to take steps to prevent the fraud. Patrick, 681 So.2d at 1369-71. In this case, however, the Jays ran the day-to-day operations of their business; thus, they were in the best position to ensure its success. The failure of the business was at least equally foreseeable to the Jays as it was to Peoples Bank, Lawson, or Coleman. Moreover, unlike the identification procedures and other safeguards in place to prevent the fraud that would harm the bank customer at issue in Patrick, this Court has held that a bank’s loan-approval policies are intended solely for the bank’s benefit.

“We conclude that the record supplies no basis for a holding that AmSouth owed ABS a common-law duty that could support its claims of negligence or wantonness based on its loan-application policies. Unlike the policies employed by the defendants in Lance[, Inc. v. Ramanauskas, 731 So.2d 1204 (Ala.1999) ], Collins [v. Wilkerson, 679 So.2d 1100 (Ala.Civ.App.1996) ], and [Wal-Mart Stores, Inc. v.] Tuck, [671 So.2d 101 (Ala.Civ.App.1995) ], all of which were policies intended to provide for public safety, the AmSouth policy that ABS references was solely for Am-South’s benefit. See Spriggs v. Compass Bank, 742 So.2d 178 (Ala.Civ.App.1997) (holding that a bank’s internal policy of notifying mortgagors of the cancellation of their property insurance was for the bank’s benefit and did not imply a duty to the mortgagors).”

Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 681 (Ala.2001). Therefore, we hold that the Peoples Bank defendants do not owe the Jays a duty that would give rise to the Jays’ negligence claim. To answer the trial court’s question, the Peoples Bank defendants cannot “be liable to [the Jays] for negligence ... on the theory that the Bank loaned [the Jays] money for use in their business when both the Bank and [the Jays] appreciated that there was a substantial risk that revenues from the business would not be sufficient to repay the loans.”

The Peoples Bank defendants also cite the above-quoted language in Armstrong to support their allegation that the trial court should have entered a summary judgment for them on the Jays’ wantonness claim. In response, the Jays merely quote the statutory definition of wantonness found at § 6-11-20(b)(3), Ala.Code 1975, and say that “[g]iven the clear conflict of interest, a jury could find that the defendants’ actions constitute wantonness.” Jays’ reply brief, p. 36. Their argument thus consists of nothing more than an undelineated general legal proposition and does not meet the requirements of Rule 28, Ala.R.App. P. Such an argument is insufficient to invoke this Court’s review. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1 (Ala.2007) (holding that an appellant’s argument citing a single case for a general proposition of law failed to comply with Rule 28, Ala. R.App. P.). Because the Jays have not presented substantial evidence either of a negligence claim or of a wantonness claim against the Peoples Bank defendants, we reverse the trial court’s order denying a summary judgment on this claim and direct the trial court to enter a summary judgment for the Peoples Bank defendants on this claim.

The Jays allege that the trial court erred in entering a summary judgment in favor of Alabama Catfish on the Jays’ negligence and/or wantonness claim. The Jays allege that “by virtue of their business relationship, the affirmative representations of George Smelley, and the involvement of the banking officers in the [Jays’] business, Alabama Catfish owed a duty of care to the [Jays] to act reasonably and to exercise reasonable care to avoid injury or damage to the [Jays].” Jays’ brief, p. 76. The Jays then allege that Alabama Catfish breached this duty of care. The Jays do not cite any authority or make any additional argument in their principal brief with respect to this allegation. It is not the duty of this Court to make arguments or perform the legal research to supplement an inadequate brief. Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) (“We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.”); Harper v. Coats, 988 So.2d 501, 508 (Ala.2008). Therefore, the Jays’ argument is not properly before this Court, and we affirm the summary judgment for Alabama Catfish on this claim.

V.Negligent and/or Wanton Supervision

The Jays allege that the trial court erred in entering a summary judgment in favor of Alabama Catfish on the Jays’ negligent- and/or wanton-supervision claim. In their cross-appeal, Peoples Bank and its directors allege that the trial court erred in denying their motion for a summary judgment on the Jays’ negligent- and/or wanton-supervision claim. Peoples Bank and its directors allege that the claim is dependent on proving that one of Peoples Bank’s employees committed an underlying wrong. “[A] party alleging negligent supervision and hiring must prove the underlying wrongful conduct of the defendant’s agents.” University Fed. Credit Union v. Gruyson, 878 So.2d 280, 291 (Ala.2003) (citing Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1073 (Ala.2003), citing in turn Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999)). Because we hold that the Jays’ claims alleging wrongful conduct on the part of any employees or officers of Peoples Bank or Alabama Catfish were properly dismissed on summary judgment, their negligent- and/or wanton-supervision claim is without merit. Therefore, we affirm the summary judgment in favor of Alabama Catfish on this claim, and we reverse the trial court’s order denying a summary judgment for Peoples Bank and its directors on this claim and direct the trial court to enter a summary judgment in favor of Peoples Bank and its directors on this claim.

VI.Conspiracy

“[Ljiability for civil conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides no cause of action, then neither does the conspiracy. Allied Supply Co. v. Brown, 585 So.2d 33 (Ala.1991); Webb v. Renfrow, 453 So.2d 724 (Ala.1984).” Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala.1993). Because the underlying claims against the Peoples Bank defendants and Alabama Catfish are properly disposed of on summary judgment, so is the conspiracy claim. Therefore, we affirm the summary judgment in favor of the Peoples Bank defendants and Alabama Catfish on this claim.

VII.Loss of Consortium

A loss-of-consortium claim is derivative of the claims of the injured spouse. Therefore, Renee’s loss-of-consortium claim must fail if Charles Jay’s claims fail. See Ex parte Progress Rail Servs. Corp., 869 So.2d 459, 462 (Ala.2003) (“Even if the claims alleging loss of consortium and loss of services could otherwise be legally cognizable, they are derivative of, and dependent upon the outcome of, the direct claim .... ”). Because all the underlying claims against the Peoples Bank defendants and Alabama Catfish are properly disposed of on summary judgment, summary judgment is also proper on Renee’s loss-of-consortium claim. Therefore, we affirm the summary judgment in favor of the Peoples Bank defendants and Alabama Catfish on this claim.

Conclusion

For the foregoing reasons, we affirm the summary judgment in favor of the Peoples Bank defendants on the Jays’ breach-of-fiduciary-duty, suppression, deceit, unjust-enrichment, and conspiracy claims and on Renee’s loss-of-consortium claim. We affirm the summary judgment in favor of Alabama Catfish on all the Jays’ claims and on Renee’s claim against it. We reverse the trial court’s order denying the motion for a summary judgment in favor of the Peoples Bank defendants on the Jays’ negligence and/or wantonness and negligent- and/or wanton-supervision claims and direct the trial court to enter a summary judgment for them on' those claims.

1061833 — AFFIRMED.

1070120 — REVERSED AND REMANDED.

1070140 — AFFIRMED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . The Jays make separate claims alleging suppression and deceit, but they present one argument in support of both claims, so we analyze those claims together.

      . Although the Jays allege both suppression and deceit, they do not present any argument addressing deceit, apart from the disclosure argument in support of their suppression claim. Therefore, we do not address that claim.

      . Wantonness is defined as “[cjonduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” § 6-1 l-20(b)(3).

      . The Peoples Bank defendants and Alabama Catfish argue that the Jays’ breach-of-fiduciary-duty, suppression, deceit, conspiracy, unjust-enrichment, and loss-of-consortium claims are barred by the statute of limitations. They point to testimony in Charles Jay’s deposition regarding alleged "coffee shop talk" as proof of his knowledge of Coleman's and Lawson's alleged conflict of interest given their roles as loan officers at Peoples Bank and as directors of Alabama Catfish, and they argue that "a party will be deemed to have ‘discovered’ a fraud as a matter of law upon the first of either the actual discovery of the fraud or when the party becomes privy to facts that would provoke inquiry in a reasonable person that, if followed up, would lead to the discovery of the fraud.” Dickinson v. Land Developers Constr. Co., 882 So.2d 291, 298 (Ala.2003). Therefore, they argue, the statutory limitations period has run against the Jays. Because we decide the case on other grounds, we need not address this issue.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    CHAMPIONCOMM.NET OF TUSCALOOSA, INC. v. Yvonne MORTON.
    1070488.
    Supreme Court of Alabama.
    Jan. 9, 2009.

      Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.
    Steven P. Gregory of Gregory Law Firm, P.C., Birmingham; and Lange Clark of Law Office of Lange Clark, P.C., Birmingham, for appellee.
   COBB, Chief Justice.

Championcomm.net of Tuscaloosa, Inc., appeals from a December 26, 2007, arbitration “award” in favor of Yvonne Morton. We dismiss the appeal for lack of subject-matter jurisdiction.

Procedural History

On May 16, 2002, Morton and Sherry Higginbotham, individually and as representatives of a class, sued Champion-comm.net and others (collectively “the payday lenders”) in the Tuscaloosa Circuit Court. Their complaint contained numerous statutory and tort claims. Morton and Higginbotham alleged that the payday lenders had conspired to engage in lending practices in violation of numerous laws and regulations by implementing a scheme to issue payday loans at rates in excess of 500 percent per annum. Morton and Higginbotham alleged that the payday lenders sought to evade Alabama’s usury laws by characterizing their payday loans as monthly “Internet service” that provided an initial cash rebate paid to customers who “subscribed” to the service.

On June 21, 2002, Championcomm.net filed a motion to compel arbitration. After the expiration of a stay pending the resolution of an appeal in a different case involving the regulation of payday-lending practices, the trial court granted Cham-pioncommmet’s motion to compel arbitration on March 29, 2006. Subsequently, a dispute arose before the arbitrator as to whether the language of the arbitration contracts at issue permitted the arbitrator to conduct the arbitration of Morton’s claims against Championcomm.net as a class action. On December 26, 2007, the arbitrator issued a “Partial Final Clause Construction Award of Arbitrator” in which, after setting forth a lengthy, detailed analysis of controlling caselaw, the arbitrator concluded that the relevant contract language permitted Morton to pursue class claims against Champion-comm.net in arbitration and awarded Morton permission to pursue class claims in arbitration accordingly. Champion-comm.net refers to the decision of the arbitrator as an “award” and pursues this appeal accordingly. Because we hold that the decision of the arbitrator does not provide a basis for appeal, we do not address whether that decision constitutes an arbitration award.

On January 7, 2008, Championcomm.net filed its notice of appeal from the December 26, 2007, decision of the arbitrator, together with a copy of the decision, in the Tuscaloosa Circuit Court. See § 6-6-15, Ala.Code 1975 (specifying the procedure for perfecting an appeal from an arbitration award). However, we find no indication in the record that the Tuscaloosa Circuit clerk entered the award as the judgment of that court. See id. (“[T]he clerk or register shall enter the [arbitration] award as the judgement of the court.”); cf. 9 U.S.C. § 13 (“The judgment shall be docketed as if it was rendered in an action.”).

Standard of Review

“On questions of subject-matter jurisdiction, this Court is not limited by the parties’ arguments or by the legal conclusions of the trial and intermediate appellate courts regarding the existence of jurisdiction. Rather, we are obligated to dismiss an appeal if, for any reason, jurisdiction does not exist. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (‘Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.’ (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).”

Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 894-95 (Ala.2008).

Analysis

With some exceptions not applicable here, this Court is without jurisdiction to hear an appeal in the absence of a final judgment. See Hamilton ex rel. Slate-Hamilton v. Connolly, 959 So.2d 640, 642 (Ala.2006) (quoting Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975)). We therefore must consider whether a final judgment exists from which this appeal may lie.

In Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 (Ala.2008), this Court made clear that a judgment entered by the circuit clerk on an arbitration award pursuant to § 6-6-15, Ala.Code 1975, “does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award.” 999 So.2d at 467. Furthermore, as this Court observed in Jenks v. Harris, 990 So.2d 878, 882 (Ala.2008), the trial court’s order on such a motion is void unless the circuit clerk has first entered the arbitration award as the judgment of the court.

It follows from these cases, and, more importantly, from the plain language of § 6-6-15, Ala.Code 1975, which governs the procedure for effecting an appeal in this case, that an arbitration award does not constitute a final judgment subject to review in our appellate courts merely upon the filing of the award, along with a notice of appeal, in the appropriate circuit court. See § 6-6-15, Ala.Code 1975 (“[T]he clerk or register shall enter the [arbitration] award as the judgement of the court. Thereafter, unless within 10 days the court shall set aside the award ... the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgement from which an appeal shall lie as in other cases.” (emphasis added)); cf. Birmingham News Co. v. Horn, 901 So.2d 27, 31 (Ala.2004) (“On January 13, 2003, the circuit clerk entered the arbitrators’ awards as the judgments of the court. The trial court did nothing further, so that on January 23, 2003, pursuant to Ala.Code 1975, § 6-6-15, the judgments became final.” (footnote omitted)), overruled on other grounds, Hereford v. D.R. Horton, Inc., [Ms. 1070396, Jan. 9, 2009] 13 So.3d 375, 379 (Ala.2009), and Horton Homes, supra; Collins v. Louisville & Nashville R.R., 70 Ala. 533, 533-34 (1881) (“In the absence of a statute authorizing it, an appeal, writ of error, or other revisory remedy, will not lie to any court from the award of arbitrators. ... The statute (Code of 1876, § 3547) authorizes the courts of primary jurisdiction to enter ... the award of arbitrators, as the judgment or decree of the court ...; and, employing the language of the statute, ‘from the judgment or decree so entered up, or from the judgment setting aside the award, an appeal shall lie, as in other cases.’ ... The statute gives an appeal from that judgment, and not from the award.”).

Under the circumstances, there is no final judgment from which Champion-comm.net can appeal. Therefore, we dismiss the appeal. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 362 (Ala.2004) (“ “When it is determined that' an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” ’ ” (quoting Tatum v. Freeman, 858 So.2d 979, 980 (Ala.Civ.App.2003), quoting in turn Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974))).

APPEAL DISMISSED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

      . On July 18, 2002, the trial court granted the payday lenders’ joint motion to stay the proceedings pending this Court's resolution of an appeal from the Montgomery Circuit Court’s final order in Alabama Check Cashers Ass’n v. State Banking Department of Alabama, CV-1998-1555. At issue in Alabama Check Cashers was whether the Alabama Small Loan Act, § 5-18-1 et seq., Ala.Code 1975, applied to payday lenders who cashed customers’ personal checks for a fee and held those checks until the customers received their next paychecks. On November 18, 2005, this Court issued its opinion in Alabama Check Cashers. See Austin v. Alabama Check Cashers Ass’n, 936 So.2d 1014 (Ala.2005), holding that the Alabama Small Loan Act does apply.

      . Apparently Higginbotham’s claims were treated independently of Morton’s.

      . On December 10, 2008, this Court adopted Rule 7 IB, Ala. R. Civ. P., which establishes a procedure for appealing from an arbitration award and supersedes § 6-6-15. It also adopted Rule 71C, Ala. R. Civ P., which deals with the entry of arbitration awards. Rule 7IB and Rule 71C are effective February 1, 2009.

        .See Rules 4(a) and 5, Ala. R.App. P.; see also Rule 54(b), Ala. R. Civ. P. (permitting the trial court to “direct the entry of final judgment as to one or more but fewer than all the claims or parties” in an action under certain circumstances).

      . See note 3 supra.


text:
    Brenda WILLIAMSON v. FOURTH AVENUE SUPERMARKET, INC.
    1070771.
    Supreme Court of Alabama.
    Jan. 9, 2009.

      James R. Morgan, Birmingham, for appellant.
    Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   COBB, Chief Justice.

Brenda Williamson, the defendant in the underlying action, appealed from the denial of her postjudgment motions following a bench trial that resulted in a judgment against Williamson. On March 21, 2008, Fourth Avenue Supermarket, Inc. (“the Supermarket”), the plaintiff below, filed a motion to dismiss Williamson’s appeal as untimely. On April 15, 2008, this Court advised the parties that it would consider the motion to dismiss at the time of the submission of the case on the merits. The case has been submitted on the merits; we grant the motion and dismiss the appeal.

Facts and Procedural History

On August 5, 2004, the Supermarket sued Williamson, a former employee, seeking to recover money Williamson had allegedly embezzled from the Supermarket. On September 14, 2007, following a bench trial in this case, the trial court found Williamson liable to the Supermarket for embezzlement and entered a judgment in favor of the Supermarket in the amount of $503,776.48.

On Sunday, October 14, 2007, Williamson electronically filed consolidated post-judgment motions in which she sought various forms of postjudgment relief under Rules 52(b) and 59, Ala. R. Civ. P. The trial court did not rule on Williamson’s consolidated postjudgment motions, and they were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. On February 26, 2008, Williamson filed a notice purporting to appeal from the denial by operation of law of her postjudgment motions. See Rule 59.1, Ala. R. Civ. P. The Supermarket filed a motion to dismiss Williamson’s appeal as untimely. We now address the Supermarket’s motion to dismiss.

Standard of Review

“On questions of subject-matter jurisdiction, this Court is not limited by the parties’ arguments or by the legal conclusions of the trial and intermediate appellate courts regarding the existence of jurisdiction. Rather, we are obligated to dismiss an appeal if, for any reason, jurisdiction does not exist. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (‘Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.’ (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).”

Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 894-95 (Ala.2008).

Analysis

“The filing of a timely notice of appeal is a jurisdictional act.” Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522, 529 (Ala.2007) (citing Lewis v. State, 463 So.2d 154, 155 (Ala.1985)). “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. See also Ex parte Alabama Dep’t of Human Res., 999 So.2d at 895 (“[W]e are obligated to dismiss an appeal if, for any reason, [subject-matter] jurisdiction does not exist.” (citing Ex parte Smith, 438 So.2d 766, 768 (Ala.1983))).

Williamson argues that her notice of appeal filed on February 26, 2008, was timely because, according to Williamson, the 42-day period in which to file an appeal began to run on Tuesday, January 15, 2008, and ended on February 26, 2008. Williamson reasons that, because Rule 59.1, Ala. R. Civ. P., allows the trial court to rule on a postjudgment motion until the end of the 90th day following the filing of the motion, the motion cannot be deemed denied as a matter of law until 12:00 midnight on the day after the trial court fails to rule on the motion within the time specified in Rule 59.1, Ala. R. Civ. P. Williamson argues that, in her case, because the 90th day fell on the weekend of January 12-13, 2008, the last day of the period in which the trial court could rule was Monday, January 14, 2008. Therefore, according to Williamson, the time in which to file an appeal did not begin to run until 12:00 a.m. on January 15, 2008, immediately after the time for the trial court to rule on her motion expired; thus, she argues, her February 26, 2008, notice of appeal was timely filed 42 days from that date. In support of her argument, Williamson relies on Ex parte Leroy Hill Coffee Co., 937 So.2d 508, 509-10 (Ala.2006), in which this Court stated, “On [Wednesday,] December 21, 2005, the 91st day after each party had filed its post-judgment motion, all remaining [post-judgment] motions were denied by operation of law.”

Despite the above statement in Leroy Hill Coffee, the language of the applicable rules of civil and appellate procedure, as well as the overwhelming majority of our caselaw both before and after Leroy Hill Coffee, makes clear that a postjudgment motion is not deemed to have been denied at some point in time after the trial judge fails to rule on the postjudgment motion by the end of the period specified in Rule 59.1; rather, absent a valid extension of the 90-day period specified in the Rule, the trial court’s failure to rule on the motion by end of the 90th day, in and of itself, is the same as a denial of the motion on that 90th day. Rule 59.1 states:

“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days .... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

(Emphasis added.) See also, e.g., Rabb ex rel. Cobb v. Estate of Harris, 953 So.2d 401, 403 & n. 1 (Ala.2006) (holding that a postjudgment motion filed on March 25, 2005, was denied by operation of law on June 23, 2005, the 90th day after the filing of the motion); State v. Redtop Market, Inc., 937 So.2d 1013, 1014 (Ala.2006) (plurality opinion) (holding that a post-judgment motion filed on February 27, 2004, was denied by operation of law on May 27, 2004, the date on which “the 90-day period during which a postjudgment motion may remain pending expired pursuant to Rule 59.1, Ala. R. Civ. P.”); New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004) (“The trial court did not rule on the ... motion for a judgment as a matter of law or for a new trial. Therefore, pursuant to Rule 59.1, Ala. R. Civ. P., the motion was denied by operation of law 90 days after it was filed. ... [T]he [post-judgment] motion is deemed to have been filed on July 2, 2003. Ninety days later, on September 30, 2003, the motion was denied by operation of law.” (citing Rule 59.1, Ala. R. Civ. P.)(footnote omitted)); Kmart Corp. v. Perdue, 708 So.2d 106, 107 (Ala.1997) (“On the 91st day from the filing of these [postjudgment] motions, the trial court entered an order purporting to grant the motion for a new trial, holding that it had erred in denying the defendants’ objection to the general verdict forms. However, because the motion was not ruled on within 90 days, the motion was deemed to have been denied. Thus, the court’s order entered on the 91st day was a nullity.”); Richburg v. Cromwell, 428 So.2d 621, 622 note (Ala.1983) (“Rule 59.1, [Ala. R. Civ. P.], provides that [postjudgment] motions, if not ruled upon by the trial judge, are deemed denied by operation of law as of the ninetieth day .... ”).

To eliminate any confusion caused by contrary or imprecise language in previous caselaw, we now reiterate that, consistent with the express language of Rule 59.1, Ala. R. Civ. P., a failure by the trial court to dispose of any postjudgment motion during the period specified in Rule 59.1 constitutes a denial of the motion “as of the date of the expiration of the period.” Rule 59.1, Ala. R. Civ. P. That is, a post-judgment motion not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed, or, where applicable, on the last day of any extension of the 90-day period. The 42-day “time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.” Rule 4(a)(1), Ala. R.App. P. Thus, the time for filing a notice of appeal begins to run on the 90th day following the filing of a postjudgment motion, absent a ruling on the motion by the trial court or a valid extension of the 90-day period. To the extent Leroy Hill Coffee or any other previous case indicates otherwise, those cases are hereby expressly overruled.

The expiration of the 90-day period during which Williamson’s postjudgment motions were allowed to remain pending in the trial court fell on the weekend of January 12-13, 2008. Therefore, Williamson’s postjudgment motions were denied by operation of law on Monday, January 14, 2008. See Rule 59.1, Ala. R. Civ. P. (providing that “[n]o post-judgment motion filed pursuant to Rules ... 52 ... or 59 shall remain pending in the trial court for more than ninety (90) days,” and that a trial court’s failure to dispose of any pending postjudgment motion within that time “shall constitute a denial of such motion”); Rule 6(a), Ala. R. Civ. P. (“In computing any period of time prescribed ... by these rules ... the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, ... in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.”); Richburg, 428 So.2d at 622 note (“[I]n this case, the ninetieth day was a Sunday, and under Rule 6, [Ala. R. Civ. P.], the [post-judgment] motion would have been carried over to the ninety-first day.”). Accordingly, Williamson had until February 25, 2008, 42 days after January 14, 2008, to timely file a notice of appeal. See Rule 4(a)-(b), Ala. RApp. P. (allowing 42 days in which to appeal from the denial of a post-judgment motion, “to be computed from the date of denial of such motion by operation of law”). Williamson’s February 26, 2008, notice of appeal was not timely filed so as to invoke the jurisdiction of this Court.

Therefore, we dismiss this appeal for lack of jurisdiction. See Rule 2(a), Ala. RApp. P. (mandating the dismissal of any appeal not timely filed so as to invoke appellate jurisdiction).

APPEAL DISMISSED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . Both parties argue that Williamson’s motions should be deemed filed on Monday, October 15, 2007, because they were filed electronically on a Sunday. Under the facts of this case, we need not address the effect of Williamson's filing her postjudgment motions on a Sunday in determining how long her motions were considered "pending in the trial court” under Rule 59.1, Ala. R. Civ. P. Whether the motions are considered to have been "pending in the trial court,” Rule 59.1, Ala. R. Civ. P., beginning on Sunday, October 14, 2007, or on Monday, October 15, 2007, the expiration of the 90-day period would have fallen on the weekend of January 12-13, 2008. Thus, in either case, the motions were denied by operation of law on Monday, January 14, 2008. See Richburg v. Cromwell, 428 So.2d 621, 622 note (Ala.1983).


author: SEE, Justice. MURDOCK, Justice

text:
    Ex parte AIG BAKER ORANGE BEACH WHARF, L.L.C., and Jeff Rouzie. (In re Be-Jeweled, L.L.C., an Alabama limited liability company, et al. v. AIG Baker Orange Beach Wharf, L.L.C., et al.).
    1071345.
    Supreme Court of Alabama.
    Jan. 9, 2009.

      James A. Harris, Jr., and Clyde O. Westbrook III of Harris & Harris, LLP, Birmingham, for petitioners.
    Peter F. Burns and Troy T. Schwant of Burns, Cunningham & Mackey, P.C., Mobile; and G. Daniel Evans of Evans & Sexton, P.C., Birmingham, for respondents.
   SEE, Justice.

AIG Baker Orange Beach Wharf, L.L.C. (“AIG Baker”), and Jeff Rouzie, in his individual capacity and as an agent of AIG Baker (“Rouzie”), petition this Court for the writ of mandamus directing the Jefferson Circuit Court to vacate its order transferring this action to the Baldwin Circuit Court. Because venue in Jefferson County, where this action was originally filed, is improper, the trial court erred by transferring the action to the Baldwin Circuit Court pursuant to Alabama’s forum non conveniens statute, § 6-3-21.1(a), Ala. Code 1975. We therefore grant the petition and issue the writ.

Facts and Procedural History

This action was filed in the Jefferson Circuit Court by numerous tenants or lease guarantors of tenants (“the tenants”) of The Wharf, a retail shopping center located in Orange Beach, Alabama, naming as defendants, among others, AIG Baker, the owner of The Wharf, and Rouzie, in his individual capacity and as an agent of AIG Baker. The tenants’ original complaint alleged that AIG Baker is a Delaware limited liability company whose principal place of business is in Jefferson County, Alabama; however, the complaint does not mention Rouzie’s residence. (AIG Baker and Rouzie are hereinafter collectively referred to as “AIG.”) AIG answered the complaint, without objecting to the tenants’ choice of venue, and asserted counterclaims against various of the tenants. The tenants subsequently moved the trial court to transfer the action to the Baldwin Circuit Court pursuant to Alabama’s forum non conveniens statute, § 6-3-21.1(a), Ala.Code 1975, on the basis that Baldwin County was more convenient for the witnesses and parties and that a transfer to the Baldwin Circuit Court would serve the interest of justice. AIG objected to the motion for a change of venue, arguing that the tenants could not transfer the action under § 6-3-21.1 because it is undisputed that Jefferson County is not an appropriate venue for this action: Rouzie, the individual defendant does not reside there; the sole member of AIG does not reside there; and the act or omission complained of did not occur there. The tenants responded that AIG had waived the improper-venue argument by failing to object to venue in Jefferson County as improper.

After receiving briefs and hearing oral argument on the motion to transfer, the trial court entered an order on June 9, 2008. In its order, the trial court first addressed whether the tenants could seek a transfer under § 6-3-21.1, stating:

“Under the undisputed facts, Jefferson County was an improper venue for this action at the time the complaint was filed. However, [AIG] waived any objection to venue, making venue appropriate in this forum. Under Ala. R. Civ. P., Rule 12(h)(1), a defense of improper venue is waived when it is not timely raised by the defendant. Because of [AIG’s] waiver, the court concludes that venue was appropriate in Jefferson County, so the court may consider the [tenants’] Motion to Transfer.”

Because the trial court concluded that venue in Jefferson County became proper when AIG failed to raise an improper-venue objection, it addressed the merits of the motion to transfer. The trial court concluded that “it is clear that Baldwin County is the more convenient forum for the parties and the witnesses as compared to Jefferson County,” and it consequently granted the motion to transfer. AIG now petitions this Court for the writ of mandamus, directing the trial court to vacate its order transferring the action to the Baldwin Circuit Court.

Standard of Review

“A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county.” Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d 12, 13-14 (Ala.2007) (citing Ex parte Wilson, 854 So.2d 1106, 1109 (Ala.2002)). “ ‘Mandamus is an extraordinary remedy and will be granted only when there is “(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty on 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 Flowers, 991 So.2d 218, 220 (Ala.2008) (quoting Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136 (Ala.2003), quoting in turn Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). “ ‘Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion.’” Ex parte Bama Concrete, 8 So.3d 295, 296 (Ala.2008) (quoting Ex parte Kane, 989 So.2d 509, 511 (Ala.2008)).

Analysis

AIG argues that the trial court exceeded its discretion by granting the tenants’ motion to transfer the action on the basis of forum non conveniens because, AIG says, the venue in which the action was initially filed was an improper venue. The tenants argue in response, as they did below, that even if venue was initially improper in Jefferson County, AIG’s argument is waived because AIG neither raised improper venue as an affirmative defense in its answer nor filed a motion for a change of venue. We disagree with the tenants’ argument.

“The doctrine of forum non con-veniens was formally adopted in this state and codified at § 6-3-21.1, Ala.Code 1975; the doctrine has a field of operation only where an action is commenced in a county in which venue is appropriate.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995). See also § 6-3-21.1, Ala.Code 1975 (“With respect to civil actions filed in an appropriate venue .... ”). “This statutory language is consistent with ‘the fundamental premise of all transfers for convenience — i.e., that venue is good at the time of filing, but that a transfer to a better venue is, or has become, appropriate.’ ” Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d at 14 (quoting Ex parte Wilson, 854 So.2d at 1112). It is undisputed that this action was filed in Jefferson County and that Jefferson County was not a proper venue for this action. Thus, “[b]ecause venue was improper in Jefferson County, the doctrine of forum non conveniens adopted in this state and codified at § 6-3-21.1, Code of Alabama 1975, has no application in this case.” Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991).

This established principle notwithstanding, the tenants argue that “[i]n the current action, it is undisputed that [AIG] did not raise venue as a defense in any of [its] answers or file a motion to transfer venue, and, therefore, the defense [of improper venue] is waived.” Tenants’ brief at 7. See Ex parte Till, 595 So.2d 871, 872 (Ala.1992) (“Rule 12(b), [Ala. R. Civ. P.,] ... requires that a claim of ‘improper venue’ be made in the responsive pleading or in a motion filed before the responsive pleading. ... If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived.”). In this same vein, the tenants also argue that the above-cited caselaw is distinguishable because “in each of those cases the defendants timely objected to venue.” Tenants’ brief at 7. However, nothing in the plain language of the forum non conveniens statute — “filed in an appropriate venue” — suggests that certain post-filing actions or events can allow the statute to be invoked when the legislature did not authorize its invocation. Moreover, other than attempting to distinguish the caselaw relied upon by AIG, the tenants provide no caselaw in support of their assertion that a defendant who has not raised the defense of improper venue cannot later object to a motion to transfer based on the doctrine of forum non conve-niens on the ground that the statutory requirements of § 6-3-21.1 were not met. “ ‘ “[W]e cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.” ’ ” Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 80 (Ala.2007) (quoting University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004), quoting in turn Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992)).

Therefore, AIG has demonstrated that it has a clear legal right to have the tenants’ motion to transfer the case denied and that the trial court exceeded its discretion in granting the motion to transfer. Therefore, AIG has demonstrated that it is entitled to mandamus relief.

Conclusion

For the foregoing reasons, we grant the petition and issue the writ of mandamus directing the trial court to vacate its order of June 9, 2008, transferring this action to the Baldwin Circuit Court.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J„ dissent.

MURDOCK, Justice

(dissenting).

When a case is filed in an improper venue, the court in that venue, at least initially, has no authority to hear and decide that case. By the same token, such a court is not the proper court to make discretionary decisions regarding the management or prosecution of the case, including the discretionary decision of which of two or more other venues ought to receive the case under the doctrine of forum non conveniens. Cf. Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d 12, 15-16 (Ala.2007) (Murdock, J., dissenting) (“[W]hen a case is pending in a court that has no authority over it because venue is improper, before any discretionary orders regarding the management or prosecution of the case are entered — including any order choosing which of two proper venues should be selected for the trial of the case — the case must first be transferred to a court with the authority to exercise such discretion and to make such decisions .... ”). Such a case must either be transferred to a court with such authority, i.e., a court having proper venue over the case, or the court in which the case is pending must somehow become an appropriate venue for that case and thereupon be imbued with that authority.

The latter is what happened in the present case. When the petitioners, as defendants, waived the defense of improper venue, the Jefferson Circuit Court was imbued with the authority to decide the case. At that point, it became a court of proper venue and acquired the same authority over the case that any court would have over any case in which venue is appropriate. If the authority to order a transfer of the case “for the convenience of the parties” or, indeed, “in the interest of justice” does not then rest in that court, then it does not rest in any court for purposes of this case. I do not think that was the legislative intent behind § 6-3-21.1, Ala. Code 1975, Alabama’s forum non conve-niens statute.

The petitioners argue that the language in § 6-3-21.1(a) — providing that actions “filed in an appropriate venue” may be transferred for convenience or in the interest of justice to another court “in which the action might have been properly filed” — allows a court to make such a transfer only where the filing of the complaint in that case was in a venue that, under the strictures of Title 6, Chapter 3, Ala.Code 1975, and Rule 82, Ala. R. Civ. P., was appropriate at the outset. That is a reasonable interpretation; I do not believe it is the only reasonable interpretation. I believe the legislative purpose behind § 6-3-21.1 requires this Court to give a somewhat more “common usage” interpretation to the quoted passage. When a case is pending in a county, it is not uncommon to say that the case is “filed” in that county.

“A statute should be construed not only in light of its language but also in light of its purpose, its object, its relation to other laws, and the conditions that may arise under its provisions.” Ex parte Edwards, 816 So.2d 98, 106 (Ala.2001). Furthermore, “[i]t is a well established rule of statutory interpretation that the law favors rational and sensible construction .... ” Crowley v. Bass, 445 So.2d 902, 904 (Ala. 1984).

The irony of the interpretation now utilized by this Court is thus: When an action begins in a venue that is sufficiently convenient and in accord with the interest of justice that our statutes and rules deem that venue to be a “proper” one, that action subsequently can be moved using the doctrine of forum non conveniens to a venue that is even more convenient or that will even better serve the interests of justice. But when an action begins in a venue not sufficiently convenient or in accord with the interest of justice even to be deemed a “proper” one by our statutes and rules, but the defendant fails to timely assert the defense of improper venue, the doctrine of forum non conveniens is not available to move that action to a venue that will be more convenient or more conducive to a just outcome. In other words, where the need for the doctrine of forum non conveniens is less, it is available; where the need for the doctrine is at its greatest, it is not available.

The trial court concluded its order with the following analysis:

“Under the undisputed facts, Jefferson County was an improper venue for this action at the time the complaint was filed. However, the defendants waived any objection to venue, making venue appropriate in this forum. Under Ala. R. Civ. P., Rule 12(h)(1), a defense of improper venue is waived when it is not timely raised by the defendant. Because of the defendants’ waiver, the court concludes that venue was appropriate in Jefferson County, so the court may consider the plaintiffs Motion to Transfer.
“The court has considered the submissions and it is clear that Baldwin County is the more convenient forum for the parties and the witnesses as compared to Jefferson County. The dispute is over property located in Baldwin County. The construction project was in Baldwin County. Most, if not all, of the witnesses having knowledge of the facts of the case reside in Baldwin County and Birmingham is approximately 280 miles from Baldwin County. There is related litigation pending in the Circuit Court of Baldwin County. In fact, except for the attorneys, Jefferson County has no connection with this litigation. It would be in the interest of justice for this case to proceed in Baldwin County.”

Based on the foregoing, I respectfully dissent.

COBB, C.J., concurs.

      . After the tenants filed their initial complaint, AIG filed an action in the Baldwin Circuit Court to evict certain other tenants of The Wharf.

      . The relevant portion of § 6-3-21.1 (a) provides:
      "(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

      . The tenants' original complaint named two defendants — AIG Baker and Rouzie. Under Rule 82(c), Ala. R. Civ. P., "[wjhere several claims or parlies have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.” The action against Rouzie, an individual, would have been proper only in the county in which he resides or "the county in which the act or omission complained of may have been done or may have occurred.” § 6-3-2(a)(3), Ala.Code 1975. It is undisputed that Rouzie is not a resident of Jefferson County and that the act or omission complained of did not occur there. Similarly, the action against AIG Baker, a limited liability company, is appropriate only "where its individual partners reside.” Ex parte Burr & Forman, LLP, 5 So.3d 557, 565 (Ala.2008). Again, it is undisputed that AIG Baker's sole member does not reside in Jefferson County.

      . In Ex parte Chapman Nursing Home, Inc., 903 So.2d 813, 815 (Ala.2004), this Court stated:
      " ‘Once the transferor court has granted the motion to transfer the case and the file has been sent to, and docketed by, the transferee court, the transferor court cannot then change its mind and vacate or set aside its transfer order or order the case returned.' Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001). The transferee court, likewise, cannot ‘retransfer’ the case to the county in which it was originally filed. Ex parte Tidwell Indus., Inc., 480 So.2d 1201 (Ala.1985). 'The aggrieved party's sole remedy in such a case is a petition for writ of mandamus directed to the trans-feror court.' MedPartners, 820 So.2d at 821.”

        See also 2 Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated § 82.4, p. 553 (4th ed. 2004) (“The transferee court lacks authority to consider a motion to retransfer an action to the county in which it was initially filed. Mandamus to the transferor court is the appropriate avenue for seeking redress of any error in the transfer.” (citations omitted)).

      . AIG makes two additional arguments as to why this Court should issue the writ. However, because the first argument is dispositive, we do not address the other two arguments.

      . See also Ex parte Volvo Trueles North America, Inc., 954 So.2d 583, 585 (Ala.2006) (" 'The doctrine [of forum non conveniens ] is applicable only when the action is commenced in a county in which venue is appropriate.’ " (quoting Montgomery Elevator Co. v. Pinkney, 628 So.2d 767, 768 (Ala.Civ.App.1993) (brackets added in Volvo Trucks))); Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991) ("That doctrine [of forum non conve-niens ] has a field of operation only where the action is commenced in a county in which venue is appropriate.").

      . "It is well-settled law in this State that the interpretation of a statute begins with the plain language of the statute itself.” Housing Auth. of Huntsville v. Hartford Accident & Indem. Co., 954 So.2d 577, 582 (Ala.2006) (citing Ex parte Achenbach, 783 So.2d 4 (Ala.2000)).

      . On the other hand, as I said in my dissenting opinion in Ex parte Miller, Hamilton, 978 So.2d at 16:
      "When a case is filed in the wrong county and remains pending in that county, in no respect can it be said that the case is 'filed' in a proper venue within the contemplation of § 6-3-21.1(a). That, in fact, was the situation in two of the three cases the main opinion cites for the proposition that § 6-3-21.1 has a field of operation ' "only where an action is commenced in a county in which venue is appropriate,” ' 978 So.2d at 14 (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995), and citing Ex parte Townsend, 589 So.2d 711, 714 (Ala. 1991)). In the third case the main opinion cites, Montgomery Elevator Co. v. Pinkney, 628 So.2d 767, 768 (Ala.Civ.App. 1993), the discussion of forum non conve-niens appears to be dictum in a case in which the only two venues under consideration were a county in which the case was originally filed and in which venue was improper and a county to which the trial court had transferred the case and in which venue was proper.”

      . Contrary to the suggestion near the end of the main opinion, I believe both the trial court and the tenants rely on well-crafted legal arguments and not "undelineated general propositions." 12 So.3d at 1208. Moreover, I read the analysis provided by both the trial court in its order and by the tenants in an effort to persuade this Court to deny the petition for the writ of mandamus and effectively affirm that order as being in accord with the analysis provided in this special writing. Although the tenants are unable to cite to a specific case on "all fours” with this one, that apparently is because there is none. Instead, the tenants reason from the statute and correctly distinguish the cases relied upon by the petitioners and the main opinion as cases in which the defense of improper venue was timely raised. As a result, the forum in which the action was initially filed in each of those cases never became an "appropriate" forum, as occurred here, with authority to hear and decide the case and, in the process, make discretionary decisions as to such issues as forum non conveniens.

      Further, even if the position taken in this writing were materially different than that expressed by the tenants in their brief to this Court, I note that the position taken is a "valid legal ground” upon which an appellate court such as this can affirm a judgment of a trial court, "even if that ground was not argued before the trial court or this Court," Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000). See also Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1082 (Ala.2004) (" 'This Court may affirm a trial court’s judgment on "any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” ' ” (quoting General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003), quoting in turn Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003))); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (noting the "rather obvious fundamental difference in upholding the trial court’s judgment and reversing it” and the principle that we " ‘will affirm the judgment appealed from if supported on any valid legal ground' ”).


author: THOMAS, Judge.

text:
    Reginald GULLETT v. Ursula Carson GULLETT.
    2070007.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.
    Certiorari Denied Jan. 9, 2009 Alabama Supreme Court 1071747.
    Phillip M. Leslie, Mobile, for appellant.

      A. Evans Crowe, Mobile, for appellee.
   THOMAS, Judge.

On November 15, 2006, Ursula Carson Gullett (“the wife”) sued Reginald Gullett (“the husband”) for a divorce, alleging incompatibility of temperament and, in the alternative, irreconcilable differences and an irretrievable breakdown of their marriage. On May 17, 2007, the trial court conducted a trial, heard disputed oral testimony, and admitted into evidence several exhibits.

On May 18, 2007, the trial court entered a judgment divorcing the parties and allocating the parties’ assets and debts. That judgment provided, in pertinent part:

“1. THAT the divorce is granted to the [wife],
“2. THAT the homeplace ... is awarded to the [wife] ....
“3. THAT the wife shall be responsible for the remaining indebtedness due to City Finance Company.
“4. THAT the [husband] is awarded any monies he received as a result of the settlement of an automobile accident lawsuit.
“5. THAT the [husband] is awarded his clothing and other personal items, and he shall have thirty (80) days to make arrangements for those items to be turned over to him.
“6. THAT the [wife] shall be awarded the Toyota Corolla automobile.”

(Capitalization in original.)

On July 17, 2007, the husband filed a motion styled as a motion pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from the trial court’s May 18, 2007, judgment. That motion alleged that the husband’s attorney had not received notice from the trial court clerk of the May 18, 2007, judgment.

On August 20, 2007, the trial court purported to amend its May 18, 2007, judgment, stating:

“1. THAT the [husband’s] instanter motion for relief from judgment is hereby granted in part.
“2. THAT the [husband] shall be awarded the pool table and large TV. The remaining provisions of the divorce are reaffirmed.”

(Capitalization in original.) The husband filed his notice of appeal on September 26, 2007.

Although neither party to this appeal has raised the issue of this court’s appellate jurisdiction, we must consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

The trial court entered its divorce judgment on May 18, 2007. The parties had 42 days, until June 29, 2007, to appeal from that final judgment. See Rule 4(a)(1), Ala. R.App. P. On July 17, 2007, 60 days after the entry of the divorce judgment, the husband filed a motion styled as a motion pursuant to Rule 60(b), Ala. R. Civ. P., alleging that he had not received notice of the trial court’s divorce judgment, noting that the 30-day period for filing a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., had expired, but, nonetheless, challenging the property division in the divorce judgment. This court has stated:

“ ‘[T]he lack of notice from the clerk’s office is not a ground for relief under Rule 60(b), Ala. R. Civ. P.; Rule 77(d), Ala. R. Civ. P., exclusively governs actions in which a litigant claims that the clerk’s office failed to [timely] notify [her] of the trial court’s entry of judgment.’ Ireland v. Piggly Wiggly Ala bama Distributing Co., 719 So.2d 844, 845 (Ala.Civ.App.1998).
“Rule 77(d), Ala. R. Civ. P., provides in part:
“‘Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to reheve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.’
“It is well settled that Rule 60(b), Ala. R. Civ. P., may not be substituted for the exclusive remedy provided by Rule 77(d) for a litigant who claims a lack of notice from the clerk’s office; it is equally well settled that Rule 60(b) may not be used to extend the time within which a party may appeal. Lindstrom v. Jones, 603 So.2d 960 (Ala.1992); Corretti v. Pete Wilson Roofing Co., 507 So.2d 408 (Ala.1986); Moser v. Crayton, 726 So.2d 696 (Ala.Civ.App.1998); Ireland v. Piggly Wiggly Alabama Distributing Co., supra.”

Gallo v. Gallo, 741 So.2d 1093, 1095 (Ala.Civ.App.1999).

Even if this Court treated the husband’s motion as a motion pursuant to Rule 77(d), Ala. R. Civ. P., the trial court lost jurisdiction to rule upon that motion on July 31, 2007, 73 days after the entry of its May 18, 2007, judgment. Rodriguez v. Rodriguez, 954 So.2d 600, 604 (Ala.Civ.App.2006) (stating that a trial court loses jurisdiction to grant a Rule 77(d) motion after 72 days, i.e., “the 42 days permitted under Rule 4, Ala. R.App. P., plus the 30 days specified in Rule 77(d)”). The husband did not file his notice of appeal until September 26, 2007. Moreover, we note that the trial court’s August 20, 2007, amended judgment purporting to grant relief under Rule 60(b) is a nullity because Rule 77, Ala. R. Civ. P., “exclusively governs situations in which a party claims lack of notice of the entry of a judgment or order.” Hopper v. Sims, 777 So.2d 122, 125 (Ala.Civ.App.2000).

The husband’s notice of appeal was filed more than 42 days after the trial court had entered its judgment of divorce. Further, although the trial court did not extend the period for filing a notice of appeal, the husband’s notice of appeal was filed after the 30-day extended period for filing a notice of appeal that may be granted by a trial court pursuant to Rule 77(d), Ala. R. Civ. P. Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Because the husband’s notice of appeal was not timely filed, we must dismiss the appeal.

APPEAL DISMISSED.

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

      . The 72d day following May 18, 2007, was July 29, 2007. July 29, 2007, was a Sunday; therefore, the notice of appeal would have had to have been filed by July 30, 2007. See Rule 26, Ala. R.App. P., and Rule 6, Ala. R. Civ. P.


author:
PITTMAN, Judge.
      MOORE, Judge,

text:
    Ex parte C.J.A. (In re In the matter of E.C.H., a minor).
    2070994.
    Court of Civil Appeals of Alabama.
    Jan. 9, 2009.

      G. Thomas Ward, Jr., of Ward Law Firm, LLC, Jasper, for petitioner.
    J. Shane Cook and Scott A. Slatton of Jackson, Mays, McNutt, Cook & Slatton, LLC, Haleyville, for respondent J.A.H.
   PITTMAN, Judge.

This mandamus proceeding arises out of a custody dispute currently pending in the Winston Juvenile Court. In April 2008, J.A.H. (“the mother”), an Alabama resident who is the mother of E.C.H., a minor child born in June 2006 (“the child”), filed a civil action in the juvenile court seeking an award of custody of the child. On June 13, 2008, the juvenile court entered an interlocutory order granting pen-dente lite custody of the child to the mother. The child’s paternal grandmother, C.J.A. (“the paternal grandmother”), then filed a motion to set aside the interlocutory order, which the juvenile court denied on July 17, 2008. The paternal grandmother then filed a petition for a writ of mandamus in this court on July 31, 2008, which was 14 days after the denial of the motion to set aside but was 48 days after the entry of the interlocutory custody order. In her petition, the paternal grandmother did not present a statement of good cause for her delay in filing her mandamus petition challenging the validity of the juvenile court’s custody order.

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

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

Here, there are two impediments to the issuance of the writ. First, and most notably, the paternal grandmother did not file her petition within a presumptively reasonable time after the juvenile court had issued its interlocutory order awarding the mother pendente lite custody of the child. Rule 21(a)(3), Ala. R.App. P., provides that a petition for an extraordinary writ directed to an appellate court, such as this court, “shall be filed within a reasonable time” and that the presumptively reasonable time for filing a petition seeking review of a trial court’s order “shall be the same as the time for taking an appeal.” In juvenile actions, an appeal must be taken within 14 days of the entry of the judgment or order appealed from. Rule 4(a)(1)(E), Ala. R.App. P.; Rule 28(C), Ala. R. Juv. P. The paternal grandmother’s motion to set aside the juvenile court’s order does not affect the timeliness analysis because, “unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.” Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala.Civ.App.2007) (citing Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003)). Onyx Waste Services further notes:

“When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition ‘shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.’ Rule 21(a)(3), Ala. R.App. P. ‘The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory.’ Ex parte Fiber Transp. L.L.C., 902 So.2d 98, 100 (Ala.Civ.App.2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala.2004), and Ex parte Troutman Sanders, [LLP,] 866 So.2d [547] at 550 [ (Ala.2003) ]).”

979 So.2d at 835. The failure either to file a petition within the presumptively reasonable time or to provide a statement of good cause for not timely filing the petition mandates denial of the requested relief. Id.; see also Ex parte Hoyt, 984 So.2d 424, 426 (Ala.Civ.App.2007).

In addition, the paternal grandmother has failed to demonstrate a clear right to a writ of mandamus directing the juvenile court to set aside its custody order. Although the paternal grandmother attached a copy of an order entered by a Florida trial court awarding temporary custody of the child to the paternal grandmother “for the indefinite future,” there is no indication that the mother or her representative was sent a copy of that order. The mother, in her response to the mandamus petition, has attached as an exhibit a copy of the petition filed by the paternal grandmother in the Florida court in which it is averred that the mother’s whereabouts are “unknown” and that she abandoned the child in July 2006. However, there is no indication that the mother’s parental rights have previously been terminated by a court of competent jurisdiction, and both the Parental Kidnaping Prevention Act (“the PKPA”), 28 U.S.C. § 1738A(e), and the Uniform Child Custody Jurisdiction and Enforcement Act in effect in Florida and Alabama (see Ala. Code 1975, § 30-3B-205(a), and Fla. Stat. Ann., § 61.518(1)) require that a parent must be afforded notice and an opportunity to be heard before entering an order affecting his or her custody rights.. As this court held in Ex parte Raywood, 549 So.2d 103, 104 (Ala.Civ.App.1989), when a custody order is entered by a court in another state without notice to a parent and without the parent’s having had a reasonable opportunity to be heard, the order is not made consistently with the PKPA, the order is not entitled to full faith and credit in this state’s courts, and Alabama is not required to decline jurisdiction over custody issues to the rendering state.

Based upon the foregoing facts and authorities, the paternal grandmother’s petition for a writ of mandamus is denied.

PETITION DENIED.

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

MOORE, J., dissents, with writing, which THOMAS, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent from the main opinion. Because the petition for a writ of mandamus was not filed within the presumptively reasonably time and because there is no “statement of circumstances constituting good cause for [this] court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time,” Rule 21(a)(3), Ala. R.App. P., I conclude that the petition is due to be dismissed. See Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 835 (Ala.Civ.App.2007). Because the petition is due to be dismissed, there is no need for a discussion of the merits of the petition.

THOMAS, J., concurs.


author: BRYAN, Judge.

text:
    M.B. and E.B. v. S.B.
    2071105.
    Court of Civil Appeals of Alabama.
    Jan. 9, 2009.

      Phillip L. Jauregui of Jauregui Law Firm, LLC, Birmingham; and Hayes D. Brown of Monroe, Trippe & Brown, LLP, Birmingham, for appellants.
    John T. Long, Birmingham, for appellee.
   BRYAN, Judge.

M.B. and E.B. (“the maternal grandparents”) appeal from a judgment of the Jefferson Juvenile Court modifying the custody of L.B., a boy born in January 2001, and J.B., a girl born in September 1999 (L.B. and J.B. are hereinafter collectively referred to as “the children”), by transferring their custody from the maternal grandparents to S.B. (“the mother”). We reverse and remand.

On May 26, 2006, the maternal grandparents filed a complaint alleging that the children were dependent, a custody affidavit, and a petition seeking custody of the children. The maternal grandparents’ dependency complaint alleged, among other things, that the mother had become unable to adequately care for the children because she had “developed a dependence” on drugs and alcohol. In June 2006, the Jefferson County Department of Human Resources (“DHR”) conducted a home evaluation of the maternal grandparents and concluded that the maternal grandparents were able to provide “a safe, stable, and secure environment for [the children].” After conducting a hearing, the juvenile court, on July 26, 2006, entered an order that, among other things, found the children to be dependent based on a stipulation of the parties, awarded the custody of the children to the maternal grandparents, and awarded the mother visitation with the children “as agreed to and arranged by the parties.” The juvenile court’s July 26, 2006, order also required that the mother participate in individual counseling, that the mother obtain and maintain stable housing and employment, and that the mother “successfully complete drug treatment to be followed by aftercare and at least six months of random drug screens.”

On July 81, 2007, the mother filed an “emergency petition to modify,” alleging that there had been a “material and substantial change in circumstances” since the entry of the juvenile court’s July 26, 2006, order; specifically, the mother alleged that the maternal grandparents had refused to allow the mother to exercise “reasonable visitation” with the children. In September 2007, DHR conducted a home evaluation of the mother and concluded, among other things, that the mother was able “to offer [the children] safety, security, and love.” In November 2007, the mother filed an “emergency motion for contempt,” again alleging that the maternal grandparents had failed to allow her to exercise reasonable visitation with the children. After conducting a hearing, the juvenile court, on February 4, 2008, entered an order setting forth a more specific visitation schedule for the mother.

After conducting an ore tenus proceeding, the juvenile court, on July 18, 2008, entered a judgment modifying the custody of the children by transferring their custody from the maternal grandparents to the mother and awarding the maternal grandparents certain visitation rights. On July 31, 2008, the maternal grandparents moved the juvenile court to alter, amend, or vacate its July 18, 2008, judgment. Then, on August 18, 2008, the juvenile court entered an order purporting to deny the maternal grandparents’ motion to alter, amend, or vacate. The maternal grandparents filed a notice of appeal on August 25, 2008.

The maternal grandparents raise two arguments on appeal. First, the maternal grandparents argue that the juvenile court failed to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984) (“the McLendon standard”), in modifying the custody of the children. The maternal grandparents also argue that “[pjroper application of the McLen-don standard to the undisputed facts below requires that the children remain in the custody of [the maternal grandparents].” Conversely, the mother argues that the juvenile court “was never bound to follow the dictates of the McLendon standard” because, she asserts, “[a]ll parties knew that the initial custody recommendation [that awarded custody of the children to the maternal grandparents] was one for temporary custody.” The mother also argues that sufficient evidence supports the juvenile court’s July 18, 2008, judgment and that “the testimony overwhelmingly shows that [she] is a good mother [and] provides for her children physically, emotionally, mentally and spiritually.”

“Generally, a trial court’s custody determination following the presentation of ore tenus evidence is presumed correct and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). However, where a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed. See generally B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002).”

C.A.M. v. B.G.H., 869 So.2d 507, 508 (Ala.Civ.App.2003). Furthermore, the issue whether the juvenile court applied the correct custody-modification standard is a question of law; thus, the ore tenus rule has no application, and this court’s review is de novo. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).

As a preliminary matter, we note that the juvenile court’s July 26, 2006, order that initially modified the custody of the children contains no indication that that order was intended to operate as a “temporary” order. The juvenile court’s July 26, 2006, order set no further hearings on the matter, and, in fact, the last page of that order provides, in pertinent part, that “[t]his matter is CLOSED to further Court Review.” (Capitalization in original.) Thus, we conclude that the mother’s assertion that the juvenile court’s July 26, 2006, order was a temporary (i.e., nonfinal) order is without merit. Accordingly, the maternal grandparents are correct in asserting that the juvenile court was required to apply the McLendon standard in ruling on the mother’s custody-modification petition. See Spears v. Wheeler, 877 So.2d 607, 608 (Ala.Civ.App. 2003) (“Where a prior custody judgment exists, a party seeking a change in custody must show[, pursuant to Ex parte McLen-don,,] that the change will materially promote the child’s best interest and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child.”).

During the closing statements presented at the hearing on the mother’s custody-modification petition, the mother’s counsel asserted, in pertinent part, that

“Alabama law further states that a child or children has a prima facie right to have custody of his or her child in a custody dispute between a parent and the non-parent. The non-custodians must prove that the parent is guilty of such misconduct or neglect to a degree that renders that parent an unfit or improper person to be entrusted with the care and upbringing of the child.”

(Emphasis added.) In response, the maternal grandparents’ counsel asserted, in pertinent part, that “when we’ve got a situation like this, you’ve got to go back to McLendon. This is the McLendon standard.” However, the juvenile court made no statement on the record regarding which custody-modification standard it would apply in ruling on the mother’s custody-modification petition. Furthermore, the juvenile court’s July 18, 2008, judgment offers no indication of which custody-modification standard it applied other than stating that “[i]t appears that the mother has done everything [the juvenile court] has ordered and that she has in all respects defeated the problems that brought her before [the juvenile court].”

The juvenile court’s July 18, 2008, judgment and the record on appeal are silent with respect to which standard the juvenile court applied in modifying custody. However, we conclude that, because the juvenile court wholly failed to employ any of the language set forth in the McLendon standard, the custody-modification standard applied by the juvenile court — whichever standard that may have been — was not the correct standard, which, as noted above, was the McLendon standard. Therefore, the juvenile court’s July 18, 2008, judgment is reversed, and the cause is remanded for proceedings consistent with this opinion. See Richardson v. Fotheringham, 950 So.2d 339, 342 (Ala.Civ.App.2006); Spears, 877 So.2d at 608; C.A.M., 869 So.2d at 508; Moncrief v. Gilbert, 675 So.2d 895, 896 (Ala.Civ.App.1996); and Pullum v. Webb, 669 So.2d 925, 927 (Ala.Civ.App.1995).

REVERSED AND REMANDED.

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

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

      . The maternal grandparents' postjudgment motion was denied by operation of law. See Rule 1(B), Ala. R. Juv. P. ("A postjudgment motion is deemed denied if not ruled on within 14 days of filing.”).

      . The maternal grandparents timely filed their notice of appeal within 14 days of the denial by operation of law of their postjudgment motion; thus, this court has jurisdiction over the maternal grandparents’ appeal. See Rule 28(C), Ala. R. Juv. P. ("Written notice of appeal shall be filed within 14 days of the date of the entry of the order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.”).

      .We also note that, even if we had concluded that the juvenile court's July 26, 2006, order could properly be considered to be a temporary order, that conclusion would not support the mother’s argument that the juvenile court was not required to apply the McLendon standard in ruling on her custody-modification petition. See A.L. v. S.J., 827 So.2d 828, 834—35 (Ala.Civ.App.2002) (quoting C.G. v. C.G., 594 So.2d 147, 149 (Ala.Civ.App.1991)) (" ‘[T]emporary custody awards, as opposed to pendente lite awards, are generally intended to last until the court is petitioned by one of the parties to modify the [judgment] and constitute final orders from which an appeal may lie to this court.' ").