author: PITTMAN, Judge.

text:
    Jamie Shree MELVIN v. Jimmie Wayne LOATS, Jr. Jimmie Wayne Loats, Jr. v. Jamie Shree Melvin.
    2070922.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    Ronald G. Davenport and Bethany L. Bulger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Wade S. Anderson of Wade S. Anderson & Associates, Birmingham, for appellant/cross-ap-pellee Jamie Shree Melvin.
    M. Clay Alspaugh and Donna L. Dixon of Smith & Alspaugh, P.C., Birmingham, for appellee/cross-appellant Jimmie Wayne Loats, Jr.
   PITTMAN, Judge.

These appeals arise out of a tort action brought in the Jefferson Circuit Court by the plaintiff, Jimmie Wayne Loats, Jr., against the defendant, Jamie Shree Melvin, alleging that Loats had been injured in an automobile collision that was attributable to Melvin’s negligence or wantonness. The cause was tried to a jury on February 12 and February 13, 2008. At the close of all the evidence, the trial court determined that Melvin was entitled to a judgment as a matter of law (see generally Rule 50, Ala. R. Civ. P.) to the extent that Loats had alleged wantonness but that Loats was entitled to a judgment as a matter of law as to Melvin’s liability on Loats’s negligence claim, leaving only the issue of damages to be decided by the jury in its deliberations. The jury returned a verdict assessing $5,100 in damages; however, no judgment was immediately entered on that jury verdict in the State Judicial Information System within the meaning of Rule 58(c), Ala. R. Civ. P., as amended in September 2006. See generally Ex parte Luker, 25 So.3d 1152, 1155 (Ala.2007) (deeming September 2006 amendment to Rule 58(c) “remedial” and directing its retroactive application).

On March 13, 2008, despite the absence of a judgment, Loats filed a motion seeking a new trial alleging, among other things, that the trial court had erred in allowing evidence that his medical expenses had been paid by collateral sources; that the trial court had erred in giving a jury instruction that was based upon the wording of Instruction 11.09 of the Alabama Pattern Jury Instructions: Civil (“APJI 11.09”); and that Ala.Code 1975, § 12-21-45, violated constitutional guaranties of a right to a jury trial and to due process and that it “discriminate[d]” against Loats by not allowing discovery of Melvin’s insurance coverage and the monetary limits of any such coverage. A duplicate new-trial motion, bearing an amended certificate of service indicating service upon the Attorney General, was filed on March 14, 2008. The trial court finally entered a judgment on the jury’s verdict within the meaning of Rule 58, Ala. R. Civ. P., on April 24, 2008, and Loats’s new-trial motion thus ripened into a proper post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., as of that date. See New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004) (“[a] postjudgment motion filed before a judgment is entered ... becomes effective when the judgment is entered.”).

The trial court rendered an order granting a new trial that was entered on June 12, 2008, 49 days after Loats’s motion ripened. In a separate opinion issued on June 13, 2008, the trial court stated that it had rendered that order because, the trial court opined, the jury’s damages award had been less than that court’s determination of Loats’s special damages, i.e., $16,413.36 — an amount that represented the gross amount of the medical bills incurred by Loats without regard to collateral-source payments and insurance “write-offs” appearing of record. The trial court further opined that it had erred in giving APJI 11.09 verbatim. Melvin appealed from the new-trial order. Because the new-trial order was entered within 90 days after the ripening of Loats’s new-trial motion, we reject Melvin’s contention that the new-trial order was void under Rule 59.1, Ala. R. Civ. P. Loats cross-appealed from the trial court’s new-trial order; however, because that order was favorable to Loats’s position and was entered at his behest, we interpret that cross-appeal as actually being a conditional appeal from the April 24, 2008, judgment of the trial court in the event that this court determines the new-trial order to be either void for lack of jurisdiction (which it is not) or erroneous (which we will next consider in connection with Melvin’s appeal).

“Under Rule 59(a), Ala. R. Civ. P., a new trial in a civil action may be granted for any reason for which new trials were granted in actions at law in Alabama before the adoption of the Alabama Rules of Civil Procedure, including the reasons stated in § 12-13-11, Ala.Code 1975. See Scott v. Farnell, 775 So.2d 789, 791 (Ala.2000). Among these grounds is ‘[ejrror of law occurring at the trial and properly preserved by the party making the application.’ § 12-13-11(a)(8), Ala.Code 1975. In other words, a trial court does not err in granting a new trial if it properly finds (1) that an error occurred in the preceding trial, and (2) that the party seeking the new trial ‘properly preserved’ the issue.”

Allen v. Fountain, 861 So.2d 1104, 1107 (Ala.Civ.App.2002). Subsection (4) of § 12-13-11 further provides that a new trial in a case may be granted because of “inadequate damages.” When, as here, a trial court has exercised its discretion to “grant[ ] a motion for new trial for grounds other than, or in addition to, a finding that the verdict is against the great weight or preponderance of the evidence,” we may not properly reverse that decision “ ‘unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.’ ” Curtis v. Faulkner Univ., 575 So.2d 1064, 1065, 1066 (Ala.1991) (quoting Kane v. Edward I. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989)).

The record reveals that a number of exhibits (plaintiffs exhibits 2 through 12) were admitted into evidence indicating the gross cost of medical care and medicine provided to Loats that, he testified, was attributable to the injuries he had received in the automobile collision with Melvin’s automobile upon which the action was based. Although the exhibits, taken together, are not a model of clarity, the charges thereon were summed by Loats’s counsel during his closing argument as $14,713.36, and that figure was accepted by the trial court as accurate in its opinion explaining its granting of Loats’s new-trial motion. However, not only did several of those exhibits reveal that some of those claimed expenses had been paid by third-party payors, Loats himself testified that his personal automobile insurer and his employer’s health-insurance plan had paid expenses on his behalf, and Loats admitted in his new-trial motion that “$14,713.36” was “paid by insurance.”

In addition to the exhibits admitted into evidence tending to show that Loats incurred $14,713.36 in reimbursed medical expenses, another composite exhibit, plaintiffs exhibit 18, was a folder of receipts that, Loats testified, represented his “out of pocket” medical expenses. The approximate total of those expenses was, according to Loats’s testimony on direct examination, $1,700; Loats’s counsel utilized that $1,700 figure in his closing argument as a separate item of damages, and the trial court’s opinion explaining its new-trial order indicates its acceptance of that figure.

In its June 13, 2008, opinion, the trial court relied principally upon Ex parte Courtney, 937 So.2d 1060 (Ala.2006), and Williston v. Ard, 611 So.2d 274 (Ala.1992). Ex parte Courtney applied the settled and unremarkable principle of law that “ ‘where liability is established, the jury’s assessment of damages must include, at the least, an amount sufficient to compensate the plaintiff for his or her uncontra-dicted special damages, as well as a reasonable amount of compensation for pain and suffering.’” 937 So.2d at 1062 (emphasis removed; quoting Smith v. Darring, 659 So.2d 678, 679-80 (Ala.Civ.App.1995)). Williston, in pertinent part, restated and applied the common-law “collateral-source rule,” which “provides that an amount of damages is not decreased by benefits received by a plaintiff from a source wholly collateral to and independent of the wrongdoer.” 611 So.2d at 278. Aggregating the expenses derived by Loats and his counsel from plaintiffs exhibits 2-12 and 18, the trial court opined that the evidence was “uncontradicted” that Loats had incurred “damages in the amount of at least $16,413.36,” an amount that “clearly exceeded the jury’s award of $5,100.00,” and that that discrepancy “alone require[d]” that the new-trial motion be granted.

However, in determining that Loats proved uncontradicted special damages of $16,413.36 that, in effect, were required to be included in the jury’s verdict as a matter of law, the trial court erroneously ignored the effect of Ala.Code 1975, § 12-21-45. That statute provides, in pertinent part:

“(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.
“(c) Upon proof by the plaintiff to the court that the plaintiff is obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed, evidence relating to such reimbursement or payment shall be admissible.”

(Emphasis added.)

In Senn v. Alabama Gas Corp., 619 So.2d 1320 (Ala.1993), the Alabama Supreme Court affirmed a judgment entered upon a jury verdict, rejecting the plaintiffs contention that the jury should have been instructed that “he could recover damages for his medical expenses even if those expenses had been paid by a collateral source.” 619 So.2d at 1325. In rejecting that contention, the supreme court reasoned that “the collateral source rule, insofar as it allowed recovery against a tort-feasor of medical expenses paid by a collateral source, was abrogated by Ala.Code 1975, § 12-21-45,” and that the requested jury instructions on the common-law collateral-source rule “were erroneous as a matter of law.” Id. (emphasis added). In a special concurrence, Chief Justice Horns-by aptly summarized the substantive effect of § 12-21-45:

“... Ala.Code 1975[,] § 12-21-45, altered the collateral source rule in civil actions in which a plaintiff seeks damages for any medical or hospital expenses. Under § 12-21-45, a defendant has the option of introducing evidence that a collateral source has paid or will pay or reimburse[] a plaintiff for his medical or hospital expenses, and if a defendant elects to introduce such evidence, a plaintiff may present evidence as to the cost of obtaining the reimbursement or payment of medical or hospital expenses, including evidence of any right of subrogation claimed by the collateral source. Thus, under § 12-21-45, a plaintiff is not entitled, necessarily, to fully recover medical or hospital expenses .... Instead, in such cases a jury must consider all of the evidence introduced at trial regarding payments from collateral sources and determine to what extent the plaintiff is entitled to recover his medical or hospital expenses.”

619 So.2d at 1326 (Hornsby, C.J., concurring specially) (emphasis added).

In this case, the trial court acknowledged in its June 13, 2008, opinion that § 12 — 21—45 has been authoritatively determined by the Alabama Supreme Court to be a constitutional exercise of its power to alter the common law (see Marsh v. Green, 782 So.2d 223, 233 (Ala.2000)). However, the trial court proceeded in that opinion to ignore the effect of that statute by determining, in effect, that the jury in this case had no authority to find, in the words of APJI 11.09 as recited to the jury, that the only “reasonable expenses necessarily incurred for doctors’ and medical bills which the plaintiff has paid or become obligated to pay” were those paid out of Loats’s own pocket rather than those paid by third parties. On the contrary, the jury could, consistent with § 12-21-45, properly award as damages, as it did, only the $1,700 in medical expenses that Loats testified to having paid out of his own pocket and an amount double that figure (i.e., $3,400) as compensation for pain and suffering. Thus, we must conclude that the trial court erred in granting a new trial on the purported basis of inadequate damages as provided for in Ala.Code 1975, § 12-13-11(4).

Likewise, we conclude that the trial court’s determination in its June 13, 2008, opinion that it had erred in giving APJI 11.09 verbatim was not a proper basis for ordering a new trial. The record reveals that just before the jury retired, counsel for Loats requested that the trial court charge the jury that the measure of damages for medical expenses was “reasonable expenses necessarily incurred for doctors’ and medical bills which the plaintiff has paid or become obligated to pay or has been paid on his behalf” (emphasis added). Loats’s counsel made no other objections to the trial court’s instructions to the jury; thus, only the issue of that suggested addition emphasized above amounts to potential legal error “properly preserved by the party making the application” under Ala.Code 1975, § 12-13-ll(a)(8), as to the trial court’s jury instructions.

However, the trial court’s instruction to the jury regarding medical expenses was proper without the addition suggested by Loats. To the extent that Loats’s suggested additional language would have allowed the jury to award as damages medical expenses Loats incurred that had been previously satisfied by a collateral source, that addition would have contravened the intent of § 12-21-45 to abrogate the collateral-source rule as to expenses within its scope. See Senn, 619 So.2d at 1325; see also Danielle A. Daigle, Commentary, “The Collateral Source Rule in Alabama: a Practical Approach to Future Application of the Statutes Abrogating the Doctrine,” 53 Ala. L.Rev. 1249, 1262 (suggesting that § 12-21-45 is properly construed so as to provide for “mandatory deduction of medical expenses paid for by collateral source payors from the amount of damages the plaintiff receives”). Although a different result might obtain, based upon the language of § 12-21-45(c), in a case in which competent evidence is adduced that a third party has asserted, or has a valid basis for asserting, a reimbursement claim against the plaintiff, we perceive no legal error in instructing the jury that it should award reasonable and necessary expenses for doctors’ and medical bills “which the plaintiff has paid or become obligated to pay” without referring to expenses paid by third parties.

For the foregoing reasons, the trial court erred in ordering a new trial in this cause. The trial court’s June 12, 2008, new-trial order is thus due to be reversed. Because our reversal of that order satisfies one of the conditions underlying Loats’s cross-appeal from the April 24, 2008, judgment entered on the jury’s verdict, we next consider whether Loats has demonstrated any error in that judgment.

The sole contention raised by Loats in this court, apart from the arguments concerning the correctness of the new-trial order (which we have already rejected), is that § 12-21-45 is violative of equal-protection and due-process principles. Consideration of Loats’s argument, to the extent that it has been properly preserved for appellate review, is foreclosed in this court by the Alabama Supreme Court’s express holding in Marsh v. Green, 782 So.2d 223 (Ala.2000), that § 12-21-45 does not offend principles of equal protection and due process. “[W]e are bound to follow the latest decision of a majority of the Supreme Court upon a particular issue.” State v. Bilotta, 522 So.2d 300, 301 (Ala.Civ.App.1988); accord Ala.Code 1975, § 12-3-16. Thus, the trial court’s April 24, 2008, judgment is due to be affirmed.

We now summarize our holdings. The trial court’s June 12, 2008, new-trial order was erroneous and is reversed. The trial court’s April 24, 2008, judgment was correct and is affirmed. The cause is remanded to the trial court. On remand from this court, the trial court is to vacate its June 12, 2008, order and is to reinstate the April 24, 2008, judgment.

APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — AFFIRMED.

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

      . On the issue of what evidence is competent to prove the existence of such a claim, see Bruno’s Supermarkets, Inc. v. Massey, 914 So.2d 862, 867-68 (Ala.Civ.App.2005), in which this court, in an opinion authored by then Judge (now Justice) Murdock, observed that § 12-21-45(c) would not allow a plaintiff to testify to her "personal knowledge” that a third-party payor had asserted a subrogation claim in an unauthenticaled letter that was not itself in evidence.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Vitaly MORGUNGENKO and Lana Morgungenko v. DWAYNE’S BODY SHOP.
    2071080.
    Court of Civil Appeals of Alabama.
    May 1, 2009.

      Stephen T. Etheredge, Dothan, for appellants.
    R. Bruce Hall and Allison Reid Lumba-tis of R. Bruce Hall, Attorney at Law, LLC, Dothan, for appellee.
   THOMPSON, Presiding Judge.

On January 16, 2008, Vitaly Morgungen-ko and Lana Morgungenko filed in the trial court an objection to the proposed sale of a purportedly abandoned vehicle by Dwayne’s Body Shop (“Dwayne’s”). Dwayne’s had sought to sell the vehicle at issue pursuant to the Abandoned Motor Vehicle Act (“the Act”), § 32-13-1 et seq., Ala.Code 1975, in order to recover storage fees and the cost of certain repairs it had performed on the vehicle. In their objection, the Morgungenkos indicated that they were the owners of the vehicle at issue and that Dwayne’s had performed repairs on the vehicle that they contended were not authorized.

The trial court scheduled the matter for a hearing. The Morgungenkos then filed a motion seeking permission to file a complaint alleging claims of detinue and conversion. On June 4, 2008, the trial court entered an order allowing the Morgungen-kos to file their complaint but specifying that “the trial of said complaint shall be severed from and heard separately apart from any hearing which may be held” pertaining to their objection to the sale of the purportedly abandoned vehicle.

Dwayne’s moved to dismiss the Morgun-genkos’ objection and complaint, alleging that the Morgungenkos were not the owners of the vehicle at issue and, therefore, that they lacked standing in this matter. In support of its motion to dismiss, Dwayne’s submitted to the trial court a printout of a document indicating that Yuri Morgungenko was the registered owner of the vehicle.

The trial court conducted an ore tenus hearing. We note that at that hearing Dwayne’s argued and presented evidence regarding the issue whether the Morgun-genkos had standing to assert their claims pertaining to the vehicle.

On July 9, 2008, the trial court entered an order finding the vehicle to be an “abandoned vehicle,” as that term is defined in § 32-13-1, Ala.Code 1975, and ordering that the vehicle be sold at public auction. In its July 9, 2008, order, the trial court also stated that it had made no determination as to whether the storage fees claimed by Dwayne’s were reasonable and that it would conduct a future hearing on that issue if any party requested such a hearing.

The Morgungenkos filed a motion requesting a hearing on the reasonableness of the claimed storage fees and seeking a stay of the sale of the vehicle. Dwayne’s filed what it characterized as a Rule 59, Ala. R. Civ. P., “motion to alter, amend, or vacate the judgment.” The trial court scheduled the pending motions for a hearing on August 6, 2008, and it later rescheduled the hearing for September 29, 2008. However, on August 18, 2008, the Morgungenkos filed a notice of appeal. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

This court may not reach the merits of the issues raised and argued by the parties to this appeal. The parties have not addressed the issue whether the July 9, 2008, order was a final judgment capable of supporting this appeal. However, jurisdictional issues, such as the finality of a judgment, are of such importance that an appellate court may take notice of them ex mero motu. Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). “A final judgment is ‘a terminative decision by a court of competent jurisdiction which demonstrates there has been a complete adjudication of all matters in controversy between the litigants within the cognizance of that Court.’ ” Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 401-02 (Ala.Civ.App.1998) (quoting Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (quoting Ford Motor Co. v. Tunnell, 641 So.2d 1238, 1240 (Ala.1994))).

In this case, the Morgungenkos, in addition to disputing Dwayne’s right to sell the vehicle as an abandoned vehicle under the Act, asserted claims of detinue and conversion against Dwayne’s. The trial court ordered that those tort claims be tried separately from the claim protesting the sale of the vehicle under the Act. Although the trial court used the word “sever” in ordering the separate trials of the claims, there is a clear distinction between severing claims and ordering separate trials on claims.

“ ‘ “Rule 42(b)[, Ala. R. Civ. P.,] allows the court to order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims or issues. The court may do so in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy. The procedure authorized by Rule 42(b) should be distinguished from severance under Rule 21[, Ala. R. Civ. P.]. Separate trials will usually result in one judgment, but severed claims become entirely independent actions to be tried, and judgment entered thereon, independently. Unfortunately this distinction, clear enough in theory, is often obscured in practice since at times the courts talk of ‘separate trial’ and ‘severance’ interchangeably.” (Footnotes omitted.)
‘Federal Practice and Procedure: Civil § 2387 (1971).’ ”

Ex parte Palughi, 494 So.2d 404, 406 (Ala.1986) (quoting Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.1976)); Opinion of the Clerk No. 15, 526 So.2d 584 (Ala.1988) (concluding that when a claim is severed pursuant to Rule 21, Ala. R. Civ. P., a separate filing fee should be paid on that separate action). Further, the label assigned by the parties or by the trial court is not determinative; “ ‘[t]he substance of the court’s action, not its form, controls.’” Ex parte Palughi, 494 So.2d at 406 (quoting Key v. Robert M. Duke Ins. Agency, 340 So.2d at 783).

In this case, the trial court specified that the claims were to be “heard separately”; there is no indication from the record that the action was severed so as to create separate actions, and it does not appear that, given the nature of the Morgungenkos’ claims, severance of the claims into separate actions would be appropriate. See Ex parte Duncan Constr. Co., 460 So.2d 852, 854 (Ala.1984) (“ ‘The intent of the rules is that all issues be resolved in one action, with all parties before one court, complex though the action may be.’ ” (quoting Lasa per L’Industria del Marmo Societa per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir.1969))). We conclude that the trial court’s order did not “sever” the claims into separate actions but, rather, that it ordered separate trials of the Morgungenkos’ claims. Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190 (Ala.Civ.App.1999); see also Ex parte Palughi, 494 So.2d at 406 (“[T]he substance of the trial court’s order was to separate issues for separate trials in order to avoid the complexity of multiple issues, and not to sever claims and thereby create independent actions.”).

The July 9, 2008, order disposed of only the issue whether the vehicle could be sold as an abandoned vehicle. That order did not address the Morgungenkos’ detinue or conversion claims, and the order specified that the issue of the reasonableness of the storage charges claimed by Dwayne’s would be considered at a future hearing if requested by the parties. Further, we note that in its July 9, 2008, order the trial court did not address Dwayne’s argument concerning whether the Morgungenkos have standing in this matter.

A final judgment capable of supporting an appeal “completely adjudicates all matters in controversy between the parties.” Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001). The July 9, 2008, order did not dispose of all the claims pending between the parties, and, therefore, the order was not sufficiently final to support this appeal. This court must dismiss an appeal from a nonfinal judgment. Perkins v. Perkins, 875 So.2d 1196, 1198 (Ala.Civ.App.2003); Wilson v. Glasheen, supra.

APPEAL DISMISSED.

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

      . “[A] Rule 59 motion may be made only in reference to a final judgment or order.” Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999).


author: THOMAS, Judge.

text:
    J. BRYANT, LLC v. CITY OF BIRMINGHAM.
    2070553.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    Ferris S. Ritchey, Jr., and Nicholas J. Ritchey of Ritchey & Ritchey, P.A., Birmingham, for appellant.
    Jeffrey P. Gilliam, City of Birmingham Law Department, Birmingham, for appel-lee.
   THOMAS, Judge.

In August 1992, the City of Birmingham granted an adult-entertainment establishment named Lynn’s Den a division I and a division II dance permit. In September 1993, the area in which Lynn’s Den was located was designated a part of a Commercial Revitalization District (“the district”). Zoning regulations applicable to the district prohibited the operation of adult-entertainment establishments like Lynn’s Den within the district. At the time the zoning regulations governing the district were established, Lynn’s Den, because it existed legally at its location before the enactment of the zoning regulations, was permitted to continue operating as a legal nonconforming use.

In 1997, Lynn’s Den was purchased by Lady’s, Inc., and Lady’s, Inc., continued to operate the establishment as The Play Late Club for nine more years. In September 2006, Brian Crain purchased all the outstanding stock in Lady’s, Inc., and he changed the name of the establishment to Johnny B’s. On September 19, 2006, John Bryant purchased 50% of the stock in Lady’s, Inc., from Crain.

At some point in September 2006, Crain sought renewal of the establishment’s liquor license from the Alcohol Beverage Control Board (“the ABC Board”), because the license was set to expire on September 30. Crain was informed that the ABC Board renewed licenses in July of each year and that, because he had failed to seek renewal in July, the ABC Board would treat his request for renewal as a new application. In order to secure a liquor license from the ABC Board, the owner of an establishment in the City of Birmingham seeking such a license must first gain the approval of the Birmingham City Council. When Crain contacted the city council, he was informed that, because the liquor license had expired on September 30, 2006, the establishment’s division I and division II dance permits had expired as well, and that he would need to submit new applications for those permits along with his request for approval of a liquor license. Crain applied for a liquor license and both a division I and a division II dance permit on October 13, 2006.

The city council approved Crain’s application for the liquor license and his application for a division I dance permit. However, the city council declined to approve the division II dance permit. A division II dance permit permits dancing for entertainment purposes on the premises. The reasons for the denial appear to have been neighborhood objection to the adult-entertainment business.

In February 2007, J. Bryant, LLC (“the LLC”), purchased Johnny B’s from Lady’s, Inc. On February 13, 2007, the LLC applied to the city council for a transfer of the liquor license and the division I dance permit from Lady’s, Inc., to the LLC. The LLC also applied for a division II dance permit.

On March 10, 2007, a representative of the LLC met with the neighborhood association about the request to transfer the liquor license and the division I dance permit and the application for a division II dance permit. The neighborhood association recommended that the city council grant the requests to transfer the existing liquor license and division I dance permit to the LLC. However, the neighborhood association declined to recommend approval of the division II dance permit on the ground that the neighborhood association did not desire an adult-entertainment establishment in the neighborhood.

On April 24, 2007, the city council approved the transfer of the liquor license and the division I dance permit. The city council considered, but decided to postpone the decision on, the application for the division II dance permit until further investigation could be made. On June 20, 2007, the City’s public-safety committee held a hearing at which it recommended denial of the LLC’s application for a division II dance permit. On July 17, 2007, the city council, acting on the recommendation of the public-safety committee, denied the LLC’s application.

On August 10, 2007, the LLC filed a complaint in the Jefferson Circuit Court challenging the city council’s denial of its application for a division II dance permit. In its complaint, the LLC sought a judgment declaring that the city council’s denial of the division II dance permit violated the 14th Amendment to the United States Constitution because it failed to recognize the LLC’s vested property right in the legal nonconforming use of the property. The LLC also complained that the city council’s denial of the division II dance permit was arbitrary and capricious. After a brief trial at which only Bryant testified, the trial court rendered a judgment on February 1, 2008, determining that the LLC had not proven by clear and convincing evidence that the city council’s denial of the division II dance permit was arbitrary, unreasonable, or capricious; the trial court did not address the LLC’s constitutional claim in its judgment. The LLC filed a notice of appeal on March 11, 2008. However, the trial court’s judgment was not entered into the State Judicial Information System (“SJIS”) until August 20, 2008. Until that date, the judgment had not yet been “entered,” see Rule 58(c), Ala. R. Civ. P., and the notice of appeal was therefore premature. Under Rule 4(a)(4), Ala. R.App. P., the LLC’s notice of appeal was deemed to have been filed on August 20, 2008.

On appeal, the LLC argues that it has a constitutionally protected property right in using its property as an adult-entertainment establishment because that use has been and continues to be a legal nonconforming use under the City’s zoning regulations. However, as noted above, the trial court’s judgment addresses only whether the city council’s denial of the division II dance permit was arbitrary or capricious and does not address the LLC’s claim that the city council’s denial of the permit unconstitutionally deprived the LLC of its property rights. Although neither party addresses this court’s jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). Because the trial court’s judgment adjudicated only one of the two claims the LLC presented in its complaint, we conclude that the judgment is not final and that the appeal must be dismissed.

An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.

Because the judgment does not adjudicate all the claims raised by the LLC and because record does not contain a Rule 54(b) certification, we dismiss this appeal.

APPEAL DISMISSED.

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

      . Although the body of the complaint indicated that the LLC was naming fictitiously named parties and although the complaint contained a count based on the alleged actions of those fictitiously named parties, the record does not reflect that the complaint was ever amended to substitute any actual parties for the fictitiously named parties. Because “[t]he beginning of trial operates as a dismissal of fictitiously named parties,” Ex parte Dyess, 709 So.2d 447, 452 (Ala.1997) (citing Rule 4(1), Ala. R. Civ. P.), the existence of the fictitiously named parties does not affect the finality of the judgment entered by the trial court.

      . A supplemental record containing the judgment was filed in this court on April 14, 2009.


author: PER CURIAM.

text:
    COLONY INSURANCE COMPANY v. ALABAMA HEAT EXCHANGERS, INC., and Olin Corporation.
    2071037.
    Court of Civil Appeals of Alabama.
    May 1, 2009.

      M. Andrew Donaldson of Ryals, Plum-mer, Donaldson, Agrícola & Smith, P.C., Montgomery, for appellant.
    James B. Newman and D. Andrew Sti-vender of Helmsing, Leach, Heriong, Newman & Rouse, P.C., Mobile, for appellees.
   PER CURIAM.

Colony Insurance Company appeals from a summary judgment entered in favor of Alabama Heat Exchangers, Inc. (“AHE”), and Olin Corporation in an insurance-coverage dispute. We dismiss the appeal as moot.

Background

On March 5, 2005, Olin Corporation sued AHE and OneBeacon American Insurance Company in the Washington Circuit Court (“the underlying action”). In its complaint, Olin alleged that AHE had manufactured and sold to Olin specially designed “heat exchangers” and that Olin had installed some of those heat exchangers in its “Chlor Alkali” manufacturing plant. Olin alleged not only that certain of the installed heat exchangers were faulty but that it had also purchased additional heat exchangers that had not yet been installed in Olin’s plant. Olin also alleged that, during AHE’s manufacture of those heat exchangers, OneBeacon had inspected them and had certified that they had been manufactured in accordance with all applicable national standards. According to Olin, the heat exchangers failed to meet those national standards.

In its complaint, Olin asserted various claims against AHE arising out of the design, manufacture, and sale of the heat exchangers and the alleged defects subsequently discovered in the installed and uninstalled heat exchangers. Olin asserted distinct claims against OneBeacon based on Olin’s alleged reliance on One-Beacon’s inspection and certification of AHE’s design and manufacturing process.

During the period pertinent to Olin’s claims, AHE was insured under a commercial general liability (“CGL”) policy of insurance issued by Colony. Colony undertook, under a reservation of rights, to defend AHE against Olin’s claims against it; the record before this court does not contain a copy of any reservation-of-rights letter. On June 9, 2005, Colony filed a complaint in the Mobile Circuit Court naming AHE, Olin, and OneBeacon as defendants; in that action, Colony sought a judgment declaring the rights and liabilities of the parties under the CGL policy and called into question its obligation to defend and indemnify AHE against the claims asserted by Olin against AHE in the underlying action.

In August 2005, Colony and OneBeacon filed a joint motion to dismiss OneBeacon as a party to the declaratory-judgment action. On September 8, 2005, the Mobile Circuit Court granted that joint motion, dismissing OneBeacon as a party without prejudice. After entry of that order, One-Beacon did not participate further in the declaratory-judgment action.

On November 19, 2007, after briefing and oral arguments, the Mobile Circuit Court entered a judgment declaring that Colony owed a duty to defend AHE against the claims asserted by Olin in the underlying action and to indemnify AHE if necessary. Colony timely appealed from that judgment to the Alabama Supreme Court, challenging the Mobile Circuit Court’s resolution of the insurance-coverage questions raised by Colony. Pursuant to Ala.Code 1975, § 12-2-7(6), our supreme court transferred the appeal to this court.

While this appeal was pending, OneBea-con filed a cross-claim against AHE in the underlying action in the Washington Circuit Court. In that cross-claim, OneBeacon asserted that it was entitled to indemnification from AHE for any liability imposed upon OneBeacon as a result of Olin’s claims.

On October 15, 2008, Olin moved to be dismissed as a party to this appeal. Olin asserted that it had settled its claims against AHE and OneBeacon and that Colony had made a substantial contribution to the settlement of those claims. Olin also asserted that, pursuant to a joint stipulation of dismissal, the Washington Circuit Court had dismissed with prejudice all of Olin’s claims against AHE and OneBeacon in the underlying action. As a result of the settlement of the claims against AHE and OneBeacon in the underlying action, Olin claimed that the issues raised on appeal by Colony were rendered moot. In support of its motion to dismiss, Olin submitted a copy of a “General Release”; copies of drafts made payable to Olin by Colony; and the order of dismissal, entered by the Washington Circuit Court, of Olin’s claims asserted against AHE and OneBeacon in the underlying action.

Colony did not oppose the dismissal of Olin as a party to this appeal, or dispute the allegations made by Olin, or dispute the accuracy of the information contained in the documents submitted by Olin in support of the motion to dismiss. As a result, this court granted Olin’s motion, dismissing it from the appeal. Colony, however, asserted that the coverage issues raised on appeal were not moot. Colony asserted that, since the filing of Colony’s appeal, OneBeacon had filed in the underlying action a cross-claim against AHE. Thus, Colony asserted, the appeal was not moot between it and AHE because, Colony argued, a justiciable controversy remained pending in the underlying action that was directly affected by the erroneous ruling of the Mobile Circuit Court on the coverage question. In support of its response, Colony attached a copy of OneBeacon’s cross-claim asserted against AHE in the underlying action.

On October 21, 2008, AHE filed its own motion to dismiss, asserting that the issues on appeal were moot as a result of the settlement of Olin’s claims in the underlying action. AHE incorporated by reference all the arguments and citations to evidence and authority asserted in Olin’s motion to dismiss. Colony opposed AHE’s motion to dismiss, again asserting that the issue whether OneBeacon’s cross-claim gave rise to a duty to defend and indemnify AHE presented a justiciable controversy on appeal. In its briefs, however, Colony continued to argue that it owed no duty to indemnify AHE for liability incurred as a result of Olin’s claims.

Analysis

As the case stands before us, a justicia-ble controversy no longer exists between Colony and AHE. In Siegelman v. Alabama Association of School Boards, 819 So.2d 568, 575-76 (Ala.2001), the Alabama Supreme Court dismissed an appeal in part, stating:

“ ‘The necessary requisite to appellate jurisdiction is the existence of an actual controversy; therefore it is not within the province of this court to decide abstract or hypothetical questions, which are disconnected from the gravity of actual relief, or from the determination of which no practical result can follow. Nor is it the province of this court to consider a fictitious case, submitted merely for the purpose of testing the right to do a particular thing.
“ ‘The general rule is, if pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed. There are many instances in which such condition may arise. It may arise by the act of the appellant himself ..., or it may likewise arise by the act of the appellee, as where, pending the appeal, he does, or relinquishes the right to do, some act in respect to which the appeal was taken. ... The condition may also arise from the act of the court a quo, that is to say, from some order or judgment in the case pending the appeal, which is made by the court, which renders the determination of the questions presented by the appeal unnecessary .... It may also arise by an act of law.... And it has been held that mere lapse of time may create this condition.... Similarly it arises where a litigation has ceased to be between parties having adverse interests, etc. It has also been held, where all substantial interest in the controversy has been parted with or extinguished, the court will not hear the appeal merely to determine the rights to costs. ... ’
“Caldwell v. Loveless, 17 Ala.App. 381, 382, 85 So. 307, 307-08 (1920) (emphasis added).”

The coverage dispute between Colony and AHE, as presented to and as decided by the Mobile Circuit Court, was rendered moot when Colony accepted responsibility for and entered into the unconditional settlement of Olin’s claims against AHE. See, e.g., Mitchum, v. Hudgens, 533 So.2d 194, 201-02 (Ala.1988) (“ ‘ “In a reservation-of-rights defense, it is the insured who may pay any judgment or settlement. Therefore, it is the insured who must make the ultimate choice regarding settlement.” ’ ” (quoting L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So.2d 1298, 1303 (Ala.1987), quoting in turn Tank v. State Farm Fire & Cas. Co., 105 Wash.2d 381, 389, 715 P.2d 1133, 1138 (1986))). By unconditionally agreeing to the settlement of Olin’s claims asserted against AHE in the underlying action, Colony voluntarily agreed to indemnify AHE against those claims. In exchange for that indemnification, AHE (and Colony) received a full release from Olin as to any and all further liability “arising from or in any way related to” the heat exchangers made the subject of underlying action in the Washington Circuit Court. Thus, the settlement negated any need for a defense of AHE against Olin’s claims and negated the need for any further indemnification of AHE against Olin’s claims.

Whether the Mobile Circuit Court correctly decided that Colony had a duty to defend and indemnify AHE against Olin’s claims was the very issue raised by Colony on appeal. “The general rule is that if, pending an appeal, an event occurs that makes determination of the case unnecessary, the appeal will be dismissed.” In re Involuntary Commitment of Skelton, 777 So.2d 148, 149 (Ala.Civ.App.2000). See also State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977) (“We have held that where an event occurs which renders a case moot prior to this court considering the appeal it will be dismissed because a decision is not necessary.”). Because the settlement in the underlying action, which occurred after the appeal was filed, has rendered a decision by this court unnecessary, the issues raised in Colony’s appeal as to any dispute between Colony and AHE are moot.

We also reject Colony’s argument that the cross-claim asserted by OneBea-con against AHE in the underlying action presents a justiciable controversy and saves this appeal from mootness. As noted above, Colony has appealed from a judgment in which the Mobile Circuit Court determined the rights and liabilities of Colony, AHE, and Olin under the CGL policy issued to AHE, in light of the claims asserted by Olin against AHE. That judgment, however, did not purport to consider and determine Colony’s rights and liabilities as to the claim asserted by OneBeacon against AHE after this appeal was initiated. Whether the allegations asserted by OneBeacon against AHE in the cross-claim in the underlying action give rise to a duty to defend and indemnify was neither raised in the Mobile Circuit Court action nor adjudicated in the Mobile Circuit Court’s final judgment, and, thus, that issue is not properly before this court on appeal. “ ‘It is a well established rule that, with limited exceptions, an appeal will he only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’ ” Crutcher v. Williams, 12 So.3d 631, 636 (Ala.2008) (quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)). Because the judgment from which Colony appealed did not purport to address Colony’s obligation to defend and indemnify AHE against OneBeacon’s claim, that issue is not before this court in this appeal.

APPEAL DISMISSED.

All the judges concur.

      . In its complaint, Olin asserted against AHE claims of breach of contract; breach of express warranty; breach of an implied warranty of merchantability pursuant to Ala.Code 1975, § 7-2-314; breach of an implied warranty of fitness for a particular purpose pursuant to Ala.Code 1975, § 7-2-315; negligence; negligent misrepresentation; breach of express warranty as to uninstalled equipment; breach of an implied warranty of merchantability as to uninstalled equipment; breach of an implied warranty of fitness for a particular purpose as to uninstalled equipment; and a claim under Alabama’s Extended Manufacturer's Liability Doctrine. Against OneBeacon, Olin asserted claims of negligent misrepresentation; negligence; fraud; and negligence per se.

      . In the joint motion to dismiss, Colony and OneBeacon stated: “OneBeacon agrees to [be] bound by the Court’s determination of whether Colony owes insurance coverage to its insured, Alabama Heat Exchangers, Inc., under the Colony policy.”

      . Although the “General Release” contained stipulations and reservations of claims in favor of certain entities, the release did not preserve any rights in favor of Colony against AHE.

      . We also note that OneBeacon was dismissed as a party to the declaratory-judgment action at Colony’s request, is not named as a party to this appeal, and has not been served with the notice of appeal or the briefs filed with this court.


text:
    Johnnie Marie McGUGIN v. Larry Edwin McGUGIN.
    2071188.
    Court of Civil Appeals of Alabama.
    May 8, 2009.

      Floyd C. Enfinger, Jr., Montrose, for appellant.
   THOMAS, Judge.

In October 2007, Johnnie Marie McGug-in (“the ex-wife”) instituted an action seeking to have Larry Edwin McGugin (“the ex-husband”) held in contempt for failure to pay support due under the parties’ divorce judgment. The ease was set for a trial on December 20, 2007; the ex-husband failed to appear, prompting the trial court to make an entry of default on December 20 and to order that the ex-wife’s attorney prepare a more detailed default judgment.

On December 27, 2007, the ex-husband filed a motion to set aside the “default judgment” under Rule 55(c), Ala. R. Civ. P. On that same date, the ex-husband filed his answer to the ex-wife’s complaint and a counterclaim, in which he sought to have the ex-wife held in contempt for failing to pay off the debt associated with an automobile she had been awarded in the parties’ divorce judgment and to have his obligation to pay alimony to the ex-wife terminated on the ground that she had openly cohabited with a member of the opposite sex. The ex-wife filed a response opposing the ex-husband’s motion and an answer to his counterclaim on January 2, 2008. The trial court set the ex-husband’s Rule 55(c) motion for a hearing to be held on February 7, 2008. A default judgment awarding the ex-wife $6,354 in past-due alimony and ordering the ex-husband to resume monthly alimony payments in the amount of $1,059.50 was entered into the State Judicial Information System (“SJIS”) on January 4, 2008.

The record reflects that the hearing scheduled on February 7, 2008, was continued to April 10, 2008, and that the hearing scheduled for April 10, 2008, was continued to May 27, 2008. On May 27, 2008, the trial court tried the contempt issues raised by the parties in their respective pleadings. A judgment finding the ex-husband in contempt for failing to pay his obligations under the divorce judgment and determining that the ex-wife had cohabited with a member of the opposite sex was entered on September 3, 2008; that judgment did not address the ex-husband’s contempt claim. The ex-wife appealed on September 11, 2008.

In the ex-wife’s statement of the case in her brief on appeal, she notes that the trial court failed to rule on the ex-husband’s Rule 55(c) motion. She further states that “the parties tried the case.” The ex-wife fails to appreciate the import of the trial court’s failure to rule on the ex-husband’s Rule 55(c) motion.

A Rule 55(c) motion, like most postjudgment motions, must be ruled upon within 90 days of its filing or it is denied by operation of law. Rule 59.1, Ala. R. Civ. P. Because the ex-husband’s Rule 55(c) motion was filed before the entry of the default judgment, it is treated as if it was filed on the date of the entry of the judgment itself. New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004). Based on a filing date of January 4, 2008, the ex-husband’s motion was deemed denied by operation of law on April 3, 2008. The trial court lost jurisdiction to act at that point, rendering its later actions in conducting a trial on the contempt issues on May 27, 2008, and in entering a judgment on those issues on September 3, 2008, void for want of jurisdiction. Ex parte Caterpillar, Inc., 708 So.2d 142, 142 (Ala.1997); Newman v. Newman, 773 So.2d 481, 483 (Ala.Civ.App.1999). This court may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007).

Our analysis is not impacted by the filing of the ex-husband’s counterclaim on December 27, 2007, before the entry of the default judgment. The trial court’s December 20, 2007, order noted the ex-husband’s failure to appear and indicated that the court viewed the failure to appear as a default, serving as an entry of default under Rule 55(a). After an entry of default, the defaulting party “loses his standing in court, cannot appear in any way, cannot adduce any evidence and cannot be heard at the final hearing.” Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 670 (Ala.1981) (equating an entry of default with a decree pro confesso under former practice); see also 10A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2681 (3d ed.2001); and 2 Champ Lyons & Ally W. Howell, Rules of Civil Procedure Annotated 55.1, p. 220 (4th ed.2004). Thus, the ex-husband’s counterclaim did not serve to prevent the January 4, 2008, default judgment from becoming a final judgment.

The ex-wife has appealed from a void judgment. Because a void judgment will not support an appeal, we dismiss this appeal. Newman, 773 So.2d at 484.

APPEAL DISMISSED.

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


author: MOORE, Judge.

text:
    Henry Dan WALDING v. Emma Carol WALDING.
    2080054.
    Court of Civil Appeals of Aabama.
    May 8, 2009.

      Thomas K. Brantley of Brantley & Haywood, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & Maddox, P.C., Dothan, for appellee.
   MOORE, Judge.

Henry Dan Walding (“the husband”) appeals from the Henry Circuit Court’s judgment amending the judgment divorcing him from Emma Carol Walding (“the wife”) following this court’s reversal of the parties’ original divorce judgment insofar as it divided the parties’ property. We affirm in part and reverse in part.

Facts and Procedural History

This is the second time these parties have been before this court. See Walding v. Walding, 983 So.2d 1128 (Ala.Civ.App.2007). In Walding, the husband appealed from the Henry Circuit Court’s initial divorce judgment, which was entered on February 7, 2006. On appeal, the husband argued that the trial court had erred in its division of property and in its award of an $8,500 attorney fee to the wife. We affirmed the award of an attorney fee. With regard to the division of property, the husband argued that the trial court had exceeded its discretion (1) in awarding the wife $40,000 as her portion of the parties’ investment property and (2) in awarding the wife $15,000 for the purchase of a vehicle.

With regard to the award of $40,000 to the wife, we agreed with the husband that the trial court had exceeded its discretion. Initially, we noted that the trial court clearly had not awarded the wife any portion of the husband’s retirement accounts. Further, we noted that, pursuant to Ala. Code 1975, § 30-2-51(a), “the trial court could not have awarded the wife any portion of the husband’s nonretirement investments acquired before the marriage, or any income derived therefrom,” because the wife had failed to present any evidence indicating “that the funds from those investments had been used regularly for the common benefit of the parties during their marriage.” Walding, 983 So.2d at 1131. Next, this court noted that the evidence indicated that the husband had invested only $23,066.96 in nonretirement investment accounts during the marriage and that the only evidence in the record regarding the value of the nonretirement investments made during the marriage was that the stocks the husband had purchased in his employee-stock-purchase plan were valued at $27,676 at the time of the trial. Id. Accordingly, this court concluded that the evidence did not justify an award of $40,000 to the wife as her portion of the nonretirement investment property, and we reversed the judgment insofar as it divided the parties’ property. Walding, 983 So.2d at 1132. Because we reversed the judgment as to the property division based on the husband’s first argument, we pretermited discussion of the husband’s second argument — that the trial court had erred in awarding the wife $15,000 to purchase a vehicle — and instructed the trial court to reconsider the entire division of property on remand. Id.

On remand to the trial court, the wife served discovery requests upon the husband and requested that the trial court receive additional evidence. The husband objected to the discovery requests and to the request that the trial court receive additional evidence. The trial court held a hearing, and, after hearing arguments of counsel for both parties, the trial judge stated: “We are not opening back up for evidence. I’m going to review the record.”

On June 26, 2008, the trial court entered an amended divorce judgment, providing, in pertinent part:

“(4) That the Court is holding the proceeds in the amount of $21,561.79 from the sale of the [marital] home. That a check in the amount of $21,561.79 is to be paid to the [wife] and the [husband] is to receive credit for $10,781.00 toward any of the obligations he is ordered to pay the [wife] herein.
“(5) That within 90 days, the [husband] is to pay $15,000 to the [wife] so she may purchase a vehicle.
“(6) That each party has various investment accounts and the court finds that the [husband] had $251,000.00 to $275,000.00 in his accounts prior to the marriage. That the [husband] testified that his portfolio reflects approximately $438,000.00 in the accounts at this time.
“(7) That each party shall retain his or her own retirement accounts or accounts previously in existence in their name.
“(8) That within 90 days, the [husband] is to pay $25,000.00 to [the wife] as her portion of the accumulated investment property.
“(9) That the [wife] will make available all the personal property in her possession that belongfs] to the [husband] ....
“(10) That the [husband] -will pay an amount equal to one half of reasonable attorney’s fees which will be awarded by the Court in a subsequent order.”

The court subsequently awarded the wife attorney fees in the amount of $8,500.

On July 24, 2008, the husband filed a motion to alter, amend, or vacate the amended divorce judgment, and, on July 25, 2008, the wife filed a “motion for reconsideration.” The trial court held a hearing on those motions on September 12, 2008. On September 26, 2008, the trial court modified the amended divorce judgment by awarding the wife interest, dating back to the entry of the initial divorce judgment, on the $25,000 awarded to the wife as her portion of the investment accounts and on the $15,000 awarded to the wife to purchase a vehicle; the trial court also awarded the wife interest on the $8,500 attorney-fee award, dating back to April 28, 2006, the date of the original order awarding those fees. The husband filed his notice of appeal on October 8, 2008.

Discussion

On appeal, the husband first argues that the trial court erred by conducting hearings after this court had remanded the case back to the trial court. He cites Kaufman v. Kaufman, 22 So.3d 458, 460 (Ala.Civ.App.2007), for the proposition that, on remand, a trial court must comply strictly with the appellate court’s mandate “ ‘ “ ‘without granting a new trial or taking additional evidence.’ ” ’ ” Kaufman, 22 So.3d at 460 (quoting Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989)) (emphasis omitted). We note, however, that the trial court specifically declined to take additional evidence on remand. Thus, we find no error on this point.

The husband next argues that the trial court erred in awarding the wife $25,000 as her portion of the investment property. In support of this argument, the husband states that this court held that the husband had invested only $23,066.96 in the nonretirement accounts during the marriage. Thus, he suggests, the trial court erred by awarding an amount larger than $23,066.96. We note, however, that this court also held that the evidence indicated that the stocks that the husband had purchased in his employee-stock-purchase plan during the marriage were valued at $27,675 at the time of the trial. Therefore, we conclude that the trial court did not, in fact, award the wife more than the value of the portion of the nonre-tirement investments accumulated during the marriage.

The husband also argues that the trial court erred in awarding the wife $15,000 to purchase a vehicle. The husband argues primarily that the award results in an inequitable division of property.

“When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage.”

Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).

In Walding, we stated:

“The parties married on June 28, 1997, and they had been married for approximately seven years and four months at the time the petition for divorce was filed. At the time of trial, the husband was 54 years old and the wife was 51 years old. The husband and the wife were both employed as registered nurses, and the husband was also a member of the Army National Guard. In 2003, the husband earned $63,887 and the wife earned $38,535.”

983 So.2d at 1129-30. The marital property consisted of the proceeds derived from the sale of the marital home; the nonre-tirement accounts, to the extent that the funds in those accounts were accumulated during the marriage; the husband’s vehicle; and household furnishings and personal items. The proceeds derived from the sale of the marital home totaled $21,561.79. With regard to the nonretirement accounts, there was evidence indicating that their value at the time of the trial was $27,675. There was no value assigned to the husband’s vehicle, and, although there was evidence indicating that the parties’ household furnishings and personal items were insured for $60,000, there was no clear evidence indicating the respective values of the items awarded to the parties. Finally, although both parties faulted the other for their marital problems, the trial court granted the divorce based on the ground of incompatibility.

Considering the awards for which we have an assigned value, i.e., the award of funds from the nonretirement investment accounts, the award of proceeds from the sale of the marital home, and the $15,000 award for the wife to purchase a vehicle, it appears that the wife received a net award valued at $50,780.79 and the husband received a net award valued at -$1,544. In Mullis v. Mullis, 994 So.2d 934 (Ala.Civ.App.2007), this court concluded that the division of marital property was inequitable when the parties had been married less than 10 years, the parties were both employed, and the husband’s award of property was approximately 18.2% of the total value of the marital property. Mullís, 994 So.2d at 939-40. In this case, the division of property is more grossly disproportionate than in Mullís. Accordingly, we reverse the trial court’s judgment as to the division of property, and we remand the cause for the trial court to enter a judgment fashioning an equitable property division. Mullís, 994 So.2d at 940.

The husband’s final argument is that the trial court erred in awarding the wife postjudgment interest, dating back to the entry of the original divorce judgment, on her respective property-settlement awards, and in awarding the wife post-judgment interest on her attorney-fee award, dating back to the entry of the original order awarding those fees.

Rule 37, Ala. R.App. P., provides, in pertinent part: “Unless otherwise provided by law, if a judgment for money in a civil case is affirmed or the appeal is dismissed, whatever interest is provided by law shall be payable from the date the judgment was rendered in the trial court.” In the present case, the award of an attorney fee to the wife was previously affirmed by this court. Thus, we conclude that the trial court did not err by awarding post-judgment interest on the attorney-fee award, dating back to the date that the order awarding those fees was entered. With regard to the property-settlement awards — the $25,000 award of the wife’s portion of the investment property and the $15,000 award for her to purchase a vehicle — we note that, because we are reversing the trial court’s judgment as to the division of property, we have no reason to address this argument.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment as to the division of property, and we remand this cause for the trial court to fashion an equitable property division in accordance with this opinion. The judgment is affirmed in all other respects.

The wife’s request for the award of an attorney fee on appeal is denied.

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

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

      . The husband also argues that, because the wife failed to make the payments on a sport-utility vehicle, she should not have been awarded money to purchase another vehicle. Based on our disposition of the husband's property-division argument, we pretermit any discussion of that ground.


text:
    John S. CAPONE, Jr. v. Beverly A. CAPONE.
    2080147.
    Court of Civil Appeals of Alabama.
    May 8, 2009.

      Sara C. Semmes of Legal Clinic of Sem-mes & Semmes, P.C., Anniston, for appellant.
    Bruce N. Adams, Anniston, for appellee.
   MOORE, Judge.

John S. Capone, Jr. (“the former husband”), appeals from a judgment entered by the Calhoun Circuit Court increasing his periodic-alimony obligation to his former wife, Beverly A. Capone (“the former wife”). We reverse.

Procedural History

This is the second time the parties have been before this court. See Capone v. Capone, 962 So.2d 835, 836 (Ala.Civ.App.2006). On August 10, 2005, the Calhoun Circuit Court entered a judgment divorcing the parties based, in part, on the court’s finding that the former husband had committed adultery. The divorce judgment also divided the parties’ marital property; awarded the former wife $2,500 per month in periodic alimony; awarded the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, provided that “the $2,500-per-month alimony payment [would] be reduced by the monthly retirement-benefit payment, once the [former] wife beg[an] receiving that payment”; and “required the [former] husband to name the [former] wife as a beneficiary of his survivor benefit plan.” Capone, 962 So.2d at 836. The former husband appealed from the divorce judgment.

On appeal, this court determined that the trial court had erred in finding that the former husband had committed adultery, in awarding the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, and in requiring the former husband to name the former wife as a beneficiary of his military survivor benefit plan. Capone, 962 So.2d at 841. This court reversed the trial coui't’s judgment and remanded the cause for the trial court to reconsider the alimony and property-division aspects of the judgment. Id.

While Capone was pending on appeal, the judge who had tried the case retired. Accordingly, on remand the case was assigned to a new judge. After reviewing this court’s instructions, the transcript of the trial, and the exhibits, the new judge entered an amended divorce judgment on March 26, 2007 (“the amended divorce judgment”). Specifically, the amended divorce judgment deleted the portions of the divorce judgment finding that the former husband had committed adultery, awarding the former wife 25% of the former husband’s military-retirement benefits upon his receipt of those benefits, and requiring the former husband to name the former wife as a beneficiary of his military survivor benefit plan. In addition, the former husband’s monthly periodic-alimony obligation was reduced to $1,977. There is nothing in the record indicating that either party filed a postjudgment motion. Furthermore, no appeal was taken from the amended divorce judgment.

On September 12, 2007, the former husband filed a petition to modify his periodic-alimony obligation. On October 9, 2007, the former wife filed an answer to the former husband’s petition and counterclaimed for an increase in the former husband’s periodic-alimony obligation. Following ore tenus proceedings on July 21, 2008, the trial court entered a judgment on July 23, 2008, providing, in pertinent part:

“1. The [former husband’s] income at the time of the divorce was approximately $62,780.00 per year. His income for 2007 was $115,900.57 and projected 2008 income based on the income to-date will be $120,096.00.
“2. That Periodic Alimony per the original Judgment of Divorce dated August 10, 2005 was $2,500.00 per month, and, ‘It being the intent of the Court that combination of retirement and alimony be no less than $2,500.00 per month.’
“3. That this Court, on remand from the Court of Civil Appeals, misinterpreted the original trial Court’s alimony determination and its original intent to provide for the maintenance and support of the [former wife] in the amount of $2,500.00 per month. The Court inadvertently reduced the Periodic Alimony to $1,977.00 per month, based on that Court’s decision that the [former wife] could not be awarded any portion of the [former husband’s] military retirement. However, after hearing the testimony and reviewing the Court records, the Court is now of the opinion that Alimony should have remained at $2,500.00 per month, with none of that amount being a percentage of the [former husband’s] retirement.
“4. Furthermore, the Court finds that in fact the [former husband] is financially more capable of providing for the [former wife’s] maintenance and support in the amount of $2,500.00 per month.
“5. That Ex mero motu the Court finds that Periodic Alimony should be in the amount of $2,500.00 per month.
“6. That the [former husband] is not due a reduction from Periodic Alimony in the amount of $2,500.00 per month.”

On August 21, 2008, the former husband filed a motion to alter, amend, or vacate the judgment; that motion was denied on September 24, 2008. The former husband filed his notice of appeal on November 4, 2008.

Discussion

On appeal, the former husband argues that the trial court exceeded its discretion in increasing his monthly periodic-alimony obligation. In support of his argument, the former husband first asserts that the trial court lacked jurisdiction to make a retroactive change to the amended divorce judgment. We agree. “[A] trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment.” Henderson v. Koveleski, 717 So.2d 803, 806 (Ala.Civ.App.1998). In the present case, after this court reversed the initial divorce judgment, the trial court entered an amended divorce judgment on March 26, 2007. Neither party filed a postjudgment motion; therefore, the trial court lost jurisdiction to amend the amended divorce judgment after April 25, 2007.

Although, pursuant to Rule 60(a), Ala. R. Civ. P., the trial court may correct a clerical error in a judgment at any time, we conclude that the trial court’s attempted modification of the March 26, 2007, amended divorce judgment was beyond the purview of that rule.

“[T]he object of a judgment nunc pro tunc or motion under rule 60(a) is to make the judgment or record speak the truth. Ward v. Ullery, 442 So.2d 99 (Ala.Civ.App.1983). It cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced. Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2854 (1973).”

Michael v. Michael, 454 So.2d 1035, 1037 (Ala.Civ.App.1984). In the July 23, 2008, judgment, the trial court, in explaining its decision to increase the former husband’s monthly alimony obligation to $2,500, stated that, at the time of the entry of the amended divorce judgment, it had misinterpreted the intent of the original divorce judgment, resulting in the trial court’s inadvertently setting the former husband’s monthly periodic-alimony obligation at $1,977. The trial court further stated that it should have set the former husband’s alimony obligation at $2,500 in the amended divorce judgment. Clearly, the trial court was not merely correcting a clerical error but, instead, was “mak[ing] the judgment say something other than what was originally pronounced.” Michael, 454 So.2d at 1037.

When the trial court entered the July 23, 2008, judgment, it had jurisdiction to modify the amended divorce judgment based only on an intervening material change in circumstances, Ex parte Ederer, 900 So.2d 424, 426 (Ala.2004), not on an earlier error committed in rendering the amended divorce judgment. Our supreme court has stated:

“ ‘ “An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing. Thus, the moving party must show a material change in the financial needs of the payee spouse and in the financial ability of the payor spouse to respond to those needs.” ’ ”

Ex parte Ederer, 900 So.2d at 426 (quoting Ederer v. Ederer, 900 So.2d 420, 422 (Ala.Civ.App.2003), quoting in turn Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App.1998)). It appears that the trial court did not modify the amended divorce judgment based on that standard.

Based on the foregoing, we reverse the trial court’s judgment and remand the cause for the trial court to determine, based on the evidence adduced at the trial, whether the former husband’s periodic-alimony obligation should be modified in accordance with the standard set forth in Ex parte Ederer, supra.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Because we are reversing the trial court’s judgment for the reasons stated in this opinion, we pretermit discussion of the former husband's additional arguments advanced in support of reversal.


author: BASCHAB, Presiding Judge.

text:
    Steven Craig TAYLOR v. STATE of Alabama.
    CR-07-0826.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.

      Charles H. Pullen, Huntsville, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Steven Craig Taylor, was convicted of second-degree rape, a violation of § 13-A-6-62(a)(l), Ala.Code 1975, and second-degree sexual abuse, a violation of § 13A-6-67(a)(2), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of twenty years in prison on the rape conviction and ten years in prison on the sexual abuse conviction. The appellant filed a “Motion for Judgment of Acquittal, or in the Alternative, Motion for New Trial,” which the trial court summarily denied. This appeal followed.

The appellant argues that his trial counsel rendered ineffective assistance.

“[I]n any cases in which the defendant is convicted after the date this opinion is released, an ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal.”

Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996). In this case, the appellant did not present his ineffective-assistance-of-counsel claim in his motion for a new trial. Therefore, it is not properly before this court.

For the foregoing reason, we affirm the appellant’s convictions. However, we note that the trial court sentenced the appellant to serve a term of ten years in prison on the second-degree sexual abuse conviction.

“Sexual abuse in second degree is a Class A misdemeanor, except that if a person commits a second or subsequent offense of sexual abuse in the second degree within one year of another sexual offense, the offense is a Class C felony.”

§ 13A-6-67(b), Ala.Code 1975. The record does not indicate that the offense in this case was a second or subsequent offense of second-degree sexual abuse that was committed within one year of another sexual offense. Therefore, the appellant’s conviction for second-degree sexual abuse constituted a Class A misdemeanor. A Class A misdemeanor is punishable by not more than one year in the county jail or at hard labor for the county. See § 13A-5-7(a)(1), Ala.Code 1975. Thus, the appellant’s sentence of ten years in prison on the second-degree sexual abuse conviction exceeds the maximum authorized by law.

Accordingly, we remand this case to the trial court with instructions that it set aside the appellant’s sentence on the second-degree sexual abuse conviction, conduct a new sentencing hearing, and sentence the appellant in accordance with § 13A-5-7(a)(l), Ala.Code 1975. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include a transcript of the new sentencing hearing.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.