author: MOORE, Judge.

text:
    Jesse Earl LONG, Jr., and Bettye Long v. CITY OF ATHENS.
    2070848.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2009.
    Certiorari Denied June 12, 2009 Alabama Supreme Court 1080535.

      John W. Parker, Mobile, for appellants.
    Anne G. Burrows and E. Shane Black of Hand Arendall, LLC, Athens, for appellee.
   MOORE, Judge.

Jesse Earl Long, Jr., and Bettye Long appeal from a summary judgment entered by the Limestone Circuit Court in favor of the City of Athens (“the City”) on their claims of negligence, trespass, nuisance, and inverse condemnation, based on the City’s alleged flooding of their property.

Facts

In 1957, the Longs purchased approximately 31.5 acres of unimproved property in Athens (“the Long property”) that is located on the north side of Brown’s Ferry Road and is also bound by Lucas Ferry Road on the west and Highway 72 to the north. According to Bettye Long’s deposition testimony, there were no ditches on the property at the time the Longs purchased it and the land was dry. Over the years, subdivisions have been developed on each side of the Long property resulting in increased water flow. According to the Longs, water from each of the surrounding subdivisions is discharged onto the Long property as a result of the drainage systems for which the City is responsible. Jesse Long stated in his answers to the City’s interrogatories that, each time it rains, water is diverted from the surrounding subdivisions onto the Long property.

According to Bettye Long, the Longs first began to get water on their property from a subdivision located to the south of the Long property. Jesse Waddell, the City’s expert witness in the field of civil engineering, testified in his deposition that the bulk of the water that flows onto the Long property comes from under Lucas Ferry Road, which is west of the Long property. Waddell also submitted an easement evaluation, in which he stated that Brown’s Ferry Road is acting as a dam along the southern property line of the Long property and that its elevation results in ponding of water on the Long property. Bettye Long testified in her deposition that Jesse Long had constructed two ditches on the Long property to accommodate the two channels of water that flow onto the Long property. According to James Rich, the public-works director for the City, the two channels of water that flow onto the Long property run in a southeasterly direction across the property. The water that enters the first channel, which appeared to Rich to be a natural drainage channel, comes from a culvert running underneath Highway 72, which is located to the north of the Long property. The water that enters the second channel comes from underneath Lucas Ferry Road. According to Rich, the second channel ties into the roadside ditch on Brown’s Ferry Road and then goes to a culvert that runs underneath Brown’s Ferry Road. Rich testified that he had witnessed flooding on the Long property upstream on Lucas Ferry Road and at the Brown’s Ferry Road culvert from rainfall in May 2003.

Bettye testified that all the Long property floods and that water goes across Brown’s Ferry Road onto the Long property. Kenneth Underwood, an expert witness for the Longs, testified by deposition that studies indicated that Brown’s Ferry Road essentially acts as a dam and that, with all the development that has occurred surrounding the Long property, the City had not updated the design of the drainage facilities under Lucas Ferry Road or Brown’s Ferry Road to accommodate the increased development and the accompanying increase in storm-water runoff. Underwood stated that each development around the Long property added more storm water runoff to the system and that that has exacerbated the problem that existed when the Longs purchased the property.

On August 20, 2002, and September 11, 2003, the City requested, and the Longs granted to the City, temporary drainage construction easements to allow the City to make improvements to the existing drainage system on the Long property. James Rich testified that, since he began working for the City in late 2001, the City had taken mowing equipment to the Long property and had cut the vegetation along the banks of the channels on the Long property, around the dates the easements had been granted. Bettye also testified that she believed the City had come out in 2003, without a written agreement, and had cleaned out the ditches that her husband had constructed and that the City had attempted to clean the ditches a fourth time, but their equipment had gotten stuck and they did not finish cleaning them. Bettye also stated that on one occasion when the City was cleaning the ditches, Rich had had the City remove an old tree from one of the ditches her husband had constructed.

Underwood testified that when he visited the Long property and the surrounding areas, he did not notice any serious debris blockage inhibiting the water flow in the culverts. Underwood stated that he had seen vegetation in the ditches along Lucas Ferry Road and on the Long property, but nothing that would stop the flow of the water. Bettye also testified that she had seen trash in the culvert under Lucas Ferry Road but that it had not stopped the water from flowing onto the Long property.

The Longs presented several engineering studies on the drainage systems that identified the Long property as a problem area for flooding. Those studies made various recommendations to alleviate those problems, including requiring holding ponds for additional developments surrounding the Long property and enlarging the storm culverts underneath Brown’s Ferry Road and Lucas Ferry Road. Those recommendations were not followed by the City.

Procedural History

The Longs filed a complaint against the City and certain fictitiously named defendants on July 14, 2006. The Longs asserted claims of negligence, trespass, nuisance, and inverse condemnation. On August 21, 2006, the City filed a motion to dismiss the Longs’ complaint; that motion was declared moot by a notation on the case-action-summary sheet on November 8, 2006.

The City filed an answer to the complaint on November 6, 2006, in which it also asserted a number of affirmative defenses. On January 30, 2008, the Longs filed a motion for a summary judgment. The City filed an opposition to the Longs’ summary-judgment motion on February 11, 2008. On February 15, 2008, the City filed a motion for a summary judgment in which it argued that all the Longs’ claims were barred by the statute of limitations, among other arguments. The trial court entered an order denying the Longs’ summary-judgment motion on February 19, 2008.

Also on February 19, 2008, the trial court entered an order directing the parties to mediation; that mediation was unsuccessful, however. The Longs filed a response to the City’s summary-judgment motion on April 16, 2008. After a hearing, the trial court entered an order on April 29, 2008, granting the City’s motion for a summary judgment. The Longs filed a postjudgment motion on May 6, 2008; that motion was denied on May 7, 2008. The Longs filed a notice of appeal to the Alabama Supreme Court on May 23, 2008; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Standard of Review

In General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002), the Alabama Supreme Court outlined the appropriate standard of review of a summary judgment:

“ ‘We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘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.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

Discussion

The Longs present three issues on appeal: (1) whether the trial court’s denial of their summary-judgment motion was proper; (2) whether the trial court erred in granting the City’s summary-judgment motion; and (3) whether the statute of limitations applicable to the Longs’ claim for damages for inverse condemnation is the same as the statute of limitations applicable to a negligent-maintenance claim. Because a determination of whether the trial court properly entered a summary judgment in favor of the City will necessarily address the remaining issues, we will first examine the merits of the City’s summary-judgment motion. The trial court did not give specific reasons for entering the summary judgment in favor of the City; therefore, “we will affirm the judgment if there is any ground upon which the judgment could have been based.” McCloud v. City of Irondale, 622 So.2d 1272, 1273 (Ala.1993).

In its summary-judgment motion, the City first argued that each of the Longs’ claims were barred by the applicable statute of limitations. The complaint alleged claims of negligent design and negligent maintenance of the drainage systems in Athens. On appeal, the Longs do not present an argument regarding their negligent-design claim. In distinguishing between the accrual of the causes of action for claims of negligent design and those of negligent maintenance of a drainage system, the Alabama Supreme Court stated in Reichert v. City of Mobile, 776 So.2d 761 (Ala.2000):

“ ‘For an abatable nuisance the cause of action does not arise until the harmful consequences occur, and each occurrence or recurrence of such damages constitutes a separate cause of action. But for an injury by a permanent and unabatable condition the damages are estimated on the hypothesis of an indefinite continuance of the nuisance, and thus affecting the permanent value of the property. In such event, one may not recover in successive suits, but his damages are awarded in solido in one action.’ ”

776 So.2d at 764-65 (quoting Harris v. Town of Tarrant City, 221 Ala. 558, 560, 130 So. 83, 84 (1930)). In Harris, the supreme court explained that a city’s negligent design of a drainage system would be treated as an unabatable condition, while negligent-maintenance claims would call for the rule applicable to abatable conditions, as stated in Reichert, to apply. See Harris, 221 Ala. at 560, 130 So. at 85.

With regard to their negligent-maintenance claim, the Longs argue that the problems have worsened over the years and that, as the flooding continues, “the cause of action is extended out from each flood event and does not stop and start on any particular flood event.” According to Reichert, for negligent-maintenance claims, “each flood event is an abatable nuisance and gives rise to a separate cause of action.” 776 So.2d at 765. Jesse Long stated in his answers to the City’s interrogatories that, each time it rains, water is diverted from the surrounding subdivisions onto the Long property. The Longs also alleged in their complaint that the Long property had flooded “on substantial numerous recurring occasions through and including the date of the filing” of their complaint. Additionally, Trey Walden, the Longs’ son-in-law, testified in his deposition that he had seen the entirety of the Long property flooded in 2003 or 2004 and that he had “watched the water build up and become worse and worse over the years.” Viewing the evidence in a light most favorable to the Longs, we conclude that the flooding of the Long property was continuous and that there were flood events within two years of the filing of their complaint. We now must determine whether the Longs presented substantial evidence of negligent maintenance sufficient to avoid a summary judgment on those claims. See Reichert, 776 So.2d at 765.

The Longs argue that the City had a duty to maintain the drainage pathways on the Long property, citing Kennedy v. City of Montgomery, 423 So.2d 187, 188-89 (Ala.1982), in addition to its maintenance of the drainage systems of the streets and developments surrounding the Long property. See Kennedy, and Ala.Code 1975, § 11-50-50. In order to avoid a summary judgment on their negligent-maintenance claim, the Longs

“must present evidence from which a jury could reasonably conclude that the flooding of their property was proximately caused by the City’s failure to provide appropriate upkeep for the storm-drainage system in its existing condition, rather than by the City’s failure to correct any alleged design or construction problems with ... that system.”

Reichert, 776 So.2d at 765-66 (citations omitted).

In Locke v. City of Mobile, 851 So.2d 446 (Ala.2002), Locke alleged that the City of Mobile had negligently maintained the drainage system in her neighborhood and that its negligent maintenance of the system had resulted in the flooding of her property. 851 So.2d at 447. Locke testified that she was uncertain whether the drains were actually clogged or if the problem was caused by heavy rainfall. Id. at 447. Locke presented the testimony of an expert witness, who, by the process of elimination, determined that the flooding of Locke’s property resulted from a blockage in the drainage system. Id. at 449. The Alabama Supreme Court determined that a blockage “does not necessarily mean negligent maintenance” because a blockage could occur “as well from the sudden and unforeseeable deposit of some foreign object or material as from the gradual accumulation of foreseeable debris that prudent maintenance would prevent.” Id. at 450. The court concluded that the expert’s testimony did not amount to substantial evidence indicating that the flooding of Locke’s property was due to the failure of the City of Mobile to regularly inspect the drains, per the expert’s recommendations, and, therefore, that the trial court had properly entered a summary judgment in favor of the City of Mobile on Locke’s negligent-maintenance claim. Id. at 451, 453.

The Longs do not argue, and have presented no evidence tending to show, that the City negligently allowed debris to enter the drainage system, thereby blocking the flow of water through the same. Rather, in attempting to distinguish the present case from Locke, the Longs argue that, unlike in Locke, there had been drainage studies submitted to the City that detailed the increased flow of water traveling across the Long property, that the City had failed to follow the recommendations of those studies, and that the City had thereby failed to maintain the drainage systems such that they controlled the flow of water through the Long property. The Longs’ theory of recovery for their claim of negligent maintenance is that, by failing to update the drainage systems to accommodate the increased discharge of surface water from the developments surrounding the Long property, the City failed to maintain those systems.

In Byrd v. City of Citronelle, 937 So.2d 515 (Ala.2006), a drainage ditch ran across a portion of Byrd’s property that received water from surrounding areas. 937 So.2d at 517. The drainage ditch began to “back up” and flood Byrd’s property in excessive rain events; when the flood water receded, it carried some topsoil from Byrd’s property and her property began to erode. Id. at 517. In support of her negligent-maintenance claim against the City of Citronelle, Byrd offered the affidavit testimony of an expert witness, who opined that obstructions in the ditch, obstruction of the driveway pipes, and improper sloping of the ditch evidenced a breach of the City of Citronelle’s duty to adequately maintain the ditch. Id. at 521. In determining that none of those conditions identified by Byrd’s expert witness indicated negligent maintenance, the Alabama Supreme Court stated that “[t]he latter two conditions are clearly matters of design or construction” and, citing Locke, that an obstruction in the ditch is not necessarily the result of the negligent maintenance thereof. Id. at 522.

In the present case, the recommendations of the various studies conducted on the City’s drainage systems included enlarging the culverts under Brown’s Ferry Road and requiring detention and retention ponds for developments upstream of the Long property. Those recommendations speak to matters of design, as did the conditions cited in Byrd, i.e., obstruction of driveway pipes and improper sloping of the ditch. Because the Longs have failed to present substantial evidence indicating that the City did not adequately maintain the drainage systems, we conclude that the trial court did not err in entering the summary judgment in favor of the City on the Longs’ negligent-maintenance claim. Because we conclude that the Longs did not present substantial evidence to avoid a summary judgment on their negligent-maintenance claim, we decline to address the issue whether the City had undertaken the duty to maintain the ditches built by Jesse Long on the Long property. Additionally, because the trial court properly entered the summary judgment on the Longs’ negligent-maintenance claim, the trial court’s disposal of the- Longs’ nuisance and trespass claims was also proper. See Royal Auto., Inc. v. City of Vestavia Hills, 995 So.2d 154 (Ala.2008) (“because the businesses’ negligent-maintenance claims fail, their nuisance and trespass claims must also fail”).

With regard to the Longs’ inverse-condemnation claim, the Longs, citing both caselaw and the inverse-condemnation statute, Ala.Code 1975, § 18-1A-32, argue that their cause of action alleging inverse condemnation accrues from the date of each injury or damage. The City argued in its summary-judgment motion, and again on appeal, that the Longs’ inverse-condemnation claim is barred by the statute of limitations. In McClendon v. City of Boaz, 395 So.2d 21, 24 (Ala.1981), the Alabama Supreme Court stated:

“Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation. Ex parte W.E. Carter, 395 So.2d 65 (1980). Such an action must be brought within the applicable statutory period. When the governmental entity in question is a municipality, an inverse condemnation claim must ‘be presented to the clerk for payment within two years from the accrual of said claim or be barred,’ § 11-47-23, Code of Alabama 1975.”

The court further stated that “the cause of action accrues when the taking is com-píete.” McClendon, 395 So.2d at 24. In McClendon, the plaintiffs asserted a claim of inverse condemnation against the City of Boaz for digging a drainage ditch across the plaintiffs’ property. Id. at 23. At the time of the filing of the complaint in McClendon, the drainage project had not yet been completed and the court determined that the plaintiffs’ claims were not barred by the statute of limitations. Id. at 25. In deciding that the cause of action accrues when the taking is complete, the Alabama Supreme Court cited with approval a portion of the United States Supreme Court’s reasoning in United States v. Dickinson, 331 U.S. 745, 747-49, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947):

“The Government could, of course, have taken appropriate proceedings to condemn as early as it chose both land and flowage easements. By such proceedings it could have fixed the time when the property was ‘taken.’ The Government chose not to do so. It left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy. ...
“Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time. The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding ‘causes of action’ — when they are born, whether they proliferate, and when they die. We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens. Assuming that such an action would be sustained, it is not a good enough reason why he must sue then or have, from that moment, the statute of limitations run against him. If suit must be brought, lest he jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him — for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim — the overflow due to rises in the level of the river — is not a single event; it is continuous. And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck.”

See McClendon, 395 So.2d at 25.

The Longs argue that because the discharge of water onto their property has increased and, they say, according to the testimony of Rich and Waddell, it will continue to increase as continued development occurs, the taking has not been completed, but is ongoing, and therefore the statute of limitations has not commenced for the filing of the inverse-condemnation claim. We disagree. A similar argument was asserted in Fallini v. United States, 56 F.3d 1378 (Fed.Cir.1995). In Fallini, the United States Court of Appeals observed that interpreting Dickinson as holding that a cause of action for a taking does not accrue until all the damages resulting from the taking can be finally calculated would mean that, in a case in which the damages continue to increase over time, the cause of action would never accrue and the statute of limitations would never run. 56 F.3d at 1381. The court then discussed a number of cases that interpreted the United States Supreme Court’s holding in Dickinson:

“In United States v. Dow, 357 U.S. 17, 27, 78 S.Ct. 1039, 1047, 2 L.Ed.2d 1109 (1958), the Court characterized Dickinson as holding only that the statute of limitations does not bar an action for a taking by flooding ‘when it was uncertain at what stage in the flooding operation the land had become appropriated to public use.’
“Following Dow, the Court of Claims adopted a similarly narrow interpretation of Dickinson and the meaning of ‘stabilization’ in the takings context. In Kabua v. United States, 546 F.2d 381, 384, 212 Ct.Cl. 160 (1976), the court noted that in Dow, the Supreme Court ‘more or less limited [Dickinson ] to the class of flooding cases to which it belonged, when the landowner must wait in asserting his claim, until he knows whether the subjection to flooding is so substantial and frequent as to constitute a taking.’ Accord Hilkovsky v. United States, 504 F.2d 1112, 1114, 205 Ct.Cl. 460 (1974) (Dow ‘distinguished the flooding situation in Dickinson from other types of Government taking because, in the slow flooding situation in Dickinson, the full extent of the Government taking could not be known until the high water mark of the flooding had been reached’). And in Barnes v. United States, 538 F.2d 865, 210 Ct.Cl. 467 (1976), on facts very similar to those in Dickinson, the court held that a taking by flood accrued in 1973 rather than in 1969, the date of the first flood. The court explained that •the taking must be dated from the time that ‘it first became clearly apparent ... that the intermittent flooding was of a permanent nature.’ Id. at 873. In other post-Dickinson cases, the Court of Claims has made clear that it is not necessary that the damages from the alleged taking be complete and fully calculable before the cause of action accrues. Columbia Basin Orchard v. United States, 88 F.Supp. 738, 739, 116 Ct.Cl. 348 (1950) (‘we do not think the Supreme Court, in the Dickinson case, meant to hold that plaintiff was entitled to wait until any possibility of further damage had been removed’); Nadler Foundry & Mach. Co. v. United States, 164 F.Supp. 249, 251, 143 Ct.Cl. 92 (1958) (same); see also Wilcox v. Executors of Plummer, 29 U.S. (4 Pet.) 172, 177, 7 L.Ed. 821 (1830) (statute of limitations begins to run when breach of duty occurs; ‘right to sue is not suspended, until subsequent events shall show the amount of damage or loss’).”

Fallini, 56 F.3d at 1381-82.

We conclude, therefore, based on the reasoning in Dickinson, Fallini and the cases discussed therein, and McClendon, that the Longs’ cause of action accrued at the time the taking was complete, or when the first flooding of their property occurred after the completion of the surrounding developments. The City presented evidence indicating that each of the developments designated in the Longs’ complaint as contributors to the flooding were completed by 2001. Thus, any cause of action alleging inverse condemnation would have accrued at the time of the first flood event affecting the Long property after the completion of the developments in 2001.

James Rich testified that he had witnessed flooding on the Long property in May 2003. According to Rich, there was flooding upstream of the Long property on Lucas Ferry Road and there was flooding at the Brown’s Ferry Road culvert as well. Trey Walden also testified that he had seen the Long property flood in either 2003 or 2004 and that that was the worst flooding he had seen on the Long property. Although Walden was unsure of the date of that flood, he stated that it could have been 2003; Walden also stated that Bettye said that he was referring to the same flood event that Rich had testified to. Because the City presented evidence of flooding in 2003, after the final surrounding developments were completed in 2001, the City met its burden of establishing that the statute of limitations for the Longs’ inverse-condemnation claim began to run in 2003. The Longs have not presented any evidence indicating that the flooding in 2003 described by Rich and Walden was not the first or most significant flooding event following the completion of the developments causing the flooding of their property by which to measure the completion of the taking of their property. Moreover, the Longs did not present any evidence indicating that any new developments were planned in the areas surrounding their property in the foreseeable future that would potentially increase the flow of water onto, or the damage to, their property. Because the Longs did not file their complaint alleging a claim of inverse condemnation against the City until 2006, we conclude that that claim was barred by the applicable two-year statute of limitations.

The summary judgment entered by the trial court in favor of the City is due to be affirmed.

AFFIRMED.

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

BRYAN and THOMAS, JJ., dissent, without writings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joyce ROBINSON, individually and as the personal representative of the estate of Roosevelt Robinson, deceased v. BAPTIST HEALTH SYSTEM, INC.
    2071172.
    Court of Civil Appeals of Alabama.
    May 29, 2009.

      Gerald L. Miller and Keith E. Brashier of Redden, Mills & Clark, LLP, Birmingham, for appellant.

      Jasper P. Juliano and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   PER CURIAM.

Joyce Robinson (“Mrs. Robinson”), the plaintiff below in this medical-malpractice action, appeals from a summary judgment in favor of the defendant, Baptist Health System, Inc. (“Baptist Health”). We affirm.

On October 7, 2005, Mrs. Robinson, acting individually and on behalf of her husband, Roosevelt Robinson (“Mr. Robinson”), who was then non compos mentis, sued Baptist Health, which operates several hospitals in the Birmingham metropolitan area. Mrs. Robinson alleged that the nursing staff (“the nursing staff’) at Baptist Medical Center — Princeton (“Princeton”), one of the hospitals operated by Baptist Health, had negligently allowed a bedsore to develop on Mr. Robinson’s body while he was a patient there from December 14, 2004, until January 25, 2005, and had negligently allowed the bedsore to worsen. Answering the complaint, Baptist Health denied that the nursing staff had been negligent.

Thereafter, Mr. Robinson died from causes unrelated to the alleged negligence of the nursing staff. Following Mr. Robinson’s death, Mrs. Robinson amended her complaint to substitute herself, in her capacity as the personal representative of Mr. Robinson’s estate, for herself as the representative of Mr. Robinson due to his incompetency. She then prosecuted the personal-injury claim that had belonged to Mr. Robinson before his death in her capacity as the personal representative of his .estate and she continued to prosecute her loss-of-consortium claim in her individual capacity.

Following the completion of discovery, Baptist Health moved the trial court for a summary judgment. As the ground of its summary-judgment motion, Baptist Health asserted that Mrs. Robinson could not prove that the alleged negligence of the nursing staff had caused the development or the worsening of Mr. Robinson’s bedsore. In support of its summary-judgment motion, Baptist Health submitted the deposition of Dr. Rian Montgomery, Mr. Robinson’s treating physician at Princeton.

In response to Baptist Health’s summary-judgment motion, Mrs. Robinson submitted, among other things, excerpts from the depositions of her nursing expert, Jan Boswell; Dr. Timothy Real, Baptist Health’s expert regarding causation; and Dr. Montgomery.

Baptist Health moved to strike the portions of Boswell’s testimony in which she offered an opinion regarding the cause of the development and worsening of Mr. Robinson’s bedsore. Baptist Health also submitted the complete deposition of Dr. Real.

Following a hearing, the trial court entered an order granting Baptist Health’s motion to strike and its summary-judgment motion. Mrs. Robinson moved the trial court to alter, amend, or vacate the summary judgment in favor of Baptist Health pursuant to Rule 59(e), Ala. R. Civ. P.; however, that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Thereafter, Mrs. Robinson timely appealed to the supreme court, which transferred her appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “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).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala. 2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

The party moving for summary judgment bears “ ‘the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).

“ ‘The manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial_
“ ‘If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production ... by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim ....
“ ‘The nonmovant may defeat a motion for summary judgment that asserts that the nonmovant has no evidence to establish an essential element of his claim by directing the trial court’s attention to evidence of that essential element already in the record, that was ignored or overlooked by the movant, or may submit an affidavit requesting additional time for discovery, in an attempt to obtain some evidence of that essential element of the claim, in accordance with Rule 56(f), [Ala.] R. Civ. P.
‘If the nonmovant cannot produce sufficient evidence to prove each element of its claim, the movant is entitled to a summary judgment, for a trial would be useless.’

Ex parte General Motors Corp., 769 So.2d at 909 (quoting Berner, 543 So.2d at 691 (Houston, J., concurring specially)) (emphasis added).

As noted above, in reviewing the summary judgment, we must accept the tendencies of the evidence that are most favorable to Mrs. Robinson and resolve all reasonable factual doubts in her favor. See Hollis v. City of Brighton, supra. Viewed in that manner, the evidence before the trial court establishes the following facts.

On the night of December 13, 2004, Mrs. Robinson found Mr. Robinson lying unconscious on the floor of their home. Mr. Robinson, who was then 73 years old, had had a history of vascular disease. He was taken to the emergency room at Princeton where the emergency-room staff found that he was unresponsive and unable to breathe without assistance. He was intu-bated and placed on a ventilator. Soon, he began to experience seizures. The emergency-room staff successfully treated Mr. Robinson’s seizures; however, he remained completely unresponsive. The emergency-room staff transferred Mr. Robinson to the intensive-care unit at Princeton.

Mr. Robinson remained dependent on the ventilator for several days after he was transferred to intensive care. Moreover, he remained completely unresponsive until December 23, 2004. He was fed by tube but did not tolerate this well. On December 23, he began to exhibit a minimal amount of improvement in his mental status, and the improvement continued over the next several days. By December 27, he was able to follow some commands and could move all four extremities. He continued to improve slowly. Eventually, he improved to the point that he could be moved out of the intensive-care unit, although his condition had not improved to the point that he could be discharged. On the night of January 24, 2005, Mr. Robinson’s blood pressure dropped to the point that he had to be given a bolus of fluid. Subsequent checks of his blood pressure indicated that his blood pressure had returned to normal in his right arm but was still low in his left arm, which indicated the possibility that he had a circulation problem in his left arm.

Dr. Montgomery recommended that some tests be performed; however, Mr. Robinson’s family instructed Dr. Montgomery not to perform any tests and informed him that they were dissatisfied with the care Mr. Robinson was receiving at Princeton because he had developed a bedsore and thrush, a problem involving fungus in the mouth. Dr. Montgomery testified that he did not know that Mr. Robinson had a bedsore until Mr. Robinson’s family told him on January 24 and that he did not examine it after the family informed him of its existence because Mr. Robinson’s family had instructed him not to perform any further examinations or tests on Mr. Robinson. On January 25, Mr. Robinson’s family had Mr. Robinson transferred to the University of Alabama at Birmingham Hospital (“UAB”). Upon Mr. Robinson’s arrival at UAB, the medical staff there noted that Mr. Robinson had a stage-two bedsore that was approximately 120 millimeters by 120 millimeters in size located on his sacrum.

The medical profession categorizes bedsores using a four-stage continuum. A reddening or blanching of the skin without an open wound is categorized as a stage-one bedsore. An open wound in the skin that is not deep enough to reveal the subcutaneous fat is categorized as a stage-two bedsore. An open wound that is deep enough to reveal the subcutaneous fat but is not deep enough to reveal the muscle, ligaments, tendons, or bones underneath the subcutaneous fat is categorized as a stage-three bedsore. An open wound that is deep enough to reveal the muscle, ligaments, tendons, or bones underneath the subcutaneous fat is categorized as a stage-four bedsore.

Approximately two to three weeks before Mr. Robinson’s January 25, 2005, departure from Princeton, his family had noticed a small red spot on his lower back while he was being bathed. Mrs. Robinson described the spot as being the size of one of the three holes in three-ring-binder paper. Mr. Robinson’s family did not see his lower back again until after Mr. Robinson departed from Princeton on January 25.

On December 31, 2004, the nursing staff noted for the first time that Mr. Robinson had denuded skin on his lower back. On January 19, 2005, the nursing staff noted for the first time that Mr. Robinson had an open wound on his lower back.

Dr. Montgomery testified that a bedsore is a breakdown of the skin caused by its being compressed between a bony structure inside the body and a surface outside the body such as a bed. Dr. Montgomery testified that he did not know how long a patient’s skin would have to be compressed before a bedsore would develop. He also testified that he could not predict what would happen if a bedsore is left untreated. Dr. Montgomery further testified that, in his experience, patients can develop bedsores despite receiving good care. Moreover, he testified that, although turning an immobile bedridden patient on a regular basis and inspecting the patient’s skin on a regular basis would reduce the chance that the patient would develop a bedsore, in his opinion neither the development nor the worsening of Mr. Robinson’s bedsore to a stage-two bedsore was caused by any act or omission on the part of the nursing staff.

Like Dr. Montgomery, Dr. Real testified that a bedsore is caused by the compression of the skin between a bony structure inside the body and a surface outside the body. He explained that the compression obstructs the vascular structures that supply blood to the skin in that area and that the obstruction of that blood supply causes damage to the skin, which is the bedsore. Thus, the ultimate cause of bedsores is ischemia, i.e., loss of blood supply, to the tissue for a certain period — the period can vary and, according to some of the literature, can be less than two hours. Dr. Real further testified that bedsores do not develop in the absence of pressure. Although Dr. Real testified that he would expect an immobile patient who is never turned to eventually develop a bedsore at some point, he was not aware of any data indicating what period would need to elapse before the patient developed the bedsore. Dr. Real also testified that leaving a bedsore untreated may not have an adverse result; the bedsore may heal on its own without treatment. Moreover, Dr. Real testified that failing to turn a patient who has a stage-one bedsore may not necessarily cause the bedsore to worsen. Finally, Dr. Real testified that, in his opinion, the care rendered by the nursing staff did not cause Mr. Robinson’s bedsore to develop or worsen.

Boswell, Mrs. Robinson’s nursing expert, testified that, in her opinion, the nursing staff had breached the applicable standard of care in five ways. First, she testified that it had breached the standard of care by failing to assess Mr. Robinson’s risk of developing bedsores when he was admitted to Princeton. Second, she testified that it had breached the standard of care by failing to prepare a written plan of care to prevent bedsores from developing. Third, she testified that it had breached the standard of care by failing to turn Mr. Robinson every 2 hours on 10 separate occasions — the nursing staff failed to turn Mr. Robinson for 3 hours on December 17, 2004; for 3 hours on December 22, 2004; for 6 hours on January 3, 2005; for 4 hours on January 4, 2005; for 6 hours on January 6, 2005; for 4 hours on January 12, 2005; for 4 hours on January 15, 2005; for 6 hours on January 16, 2005; for 12 hours on January 17, 2005; and for 9 hours on January 18, 2005. Fourth, Boswell testified that the nursing staff had breached the standard of care by failing to put Mr. Robinson on a pressure-reduction surface such as an air-filled mattress. Fifth and finally, she testified that the nursing staff had breached the standard of care by failing to obtain an order from Mr. Robinson’s physician to add vitamins and minerals to his tube feedings. Boswell further testified that, in her opinion, if the nursing staff had not breached the standard of care in those respects, Mr. Robinson would not have developed a bedsore. However, Boswell acknowledged that a number of factors play a part in the development of bedsores; that not all stage-one bedsores are preventable; that a stage-two bedsore can develop in less than two hours; and that determining what caused a bedsore and whether the bedsore could have been prevented requires a medical judgment, which she is not qualified to make, rather than a nursing judgment.

Mrs. Robinson first argues that the trial court erred in granting Baptist Health’s motion to strike the testimony of Boswell regarding causation and in granting Baptist Health’s summary-judgment motion because, Mrs. Robinson says, Boswell’s testimony regarding causation constituted competent and substantial evidence establishing a prima facie case that a causal connection existed between the alleged negligence of the nursing staff and the development and worsening of Mr. Robinson’s bedsore. We disagree.

“The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is ‘largely discretionary with the trial court, and that court’s judgment will not be disturbed absent an abuse of discretion.’ Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002). We now refer to that standard as a trial court’s ‘exceeding its discretion.’ See, e.g., Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 106 (Ala. 2004) (‘Our review of the record supports the conclusion that the trial court did not exceed its discretion in finding that Jones was properly qualified as an expert under Rule 702[, Ala. R. Evid.,] and in considering his testimony.’). However, the standard itself has not changed.”

Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005).

Although Boswell expressed an opinion regarding causation, she admitted that she was not qualified to express that opinion. Moreover, Mrs. Robinson made no showing that, aside from her nursing degree, her work experience as a floor nurse, and her informal review of medical literature regarding bedsores, Boswell had any expertise regarding bedsores; Mrs. Robinson made no showing that Boswell had any specialized training or experience in treating bedsores or other wounds. Given Boswell’s admission that she was not qualified to express an opinion regarding the cause of bedsores or their worsening and the failure of Mrs. Robinson to show that Boswell possessed any special expertise regarding bedsores, we cannot hold that the trial court exceeded its discretion in granting Baptist Health’s motion to strike Boswell’s opinion testimony regarding the cause of Mr. Robinson’s bedsore and its worsening. See Kyser v. Harrison, 908 So.2d at 918-20 (holding that the trial court did not exceed its discretion in excluding a pathologist’s testimony regarding the cause of an infant’s death, which the plaintiff had submitted in opposition to the defendant’s summary-judgment motion, on the ground that the pathologist was not shown to be qualified to express such an opinion). Therefore, we find no merit in Mrs. Robinson’s first argument.

Mrs. Robinson next argues that, even if her nursing expert was not qualified to express an opinion regarding causation, she met her burden of proving causation through the testimony of Dr. Montgomery and Dr. Real. However, although Dr. Montgomery and Dr. Real testified that pressure on the skin is a sine qua non of the development and worsening of bedsores, they did not testify that a causal link existed between the breaches of the standard of care that Boswell had identified, on the one hand, and the development and worsening of Mr. Robinson’s bedsore, on the other. Indeed, their testimony tended to disprove the existence of such a causal connection. Therefore, we find no merit in Mrs. Robinson’s second argument.

Finally, Mrs. Robinson argues that a medical-malpractice action based on the development and worsening of a bedsore constitutes an exception to the general rule that the plaintiff in a medical-malpractice action must present expert testimony establishing proximate cause because, she says, the cause of bedsores is within the common knowledge of jurors and does not require the guidance of an expert. However, the evidence in the case now before us does not support that argument. Mrs. Robinson’s own witness, Boswell, testified that determining what caused a bedsore and whether it could have been prevented requires medical judgment that is beyond the ability of a layman. Therefore, we find no merit in Mrs. Robinson’s third and final argument.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

All the judges concur.


text:
    Irilmoskomazzarella WASHINGTON v. Anita WASHINGTON.
    2070718.
    Court of Civil Appeals of Alabama.
    May 29, 2009.

      Kelli F. McDaniel, Montgomery, for appellant.
    Roderick B. Perdue, Wetumpka, for ap-pellee.
   PER CURIAM.

Irilmoskomazzarella Washington (“the husband”) appeals from an order of the Elmore Circuit Court divorcing him from Anita Washington (“the wife”) insofar as it divided the parties’ property, awarded the wife child support and custody of the parties’ minor son, and failed to award the husband alimony.

Procedural and Factual Background

The parties were married on August 16, 1997, and one child was born out of the marriage — a boy, born in January 2000 (“the son”). On March 28, 2006, the husband sued the wife for a divorce on the grounds of incompatibility of temperament, irretrievable breakdown of the marriage, and physical abuse. The husband’s divorce complaint asked the trial court to equitably divide the parties’ property, to equitably divide the parties’ debts, and to award the parties joint legal custody of the son, with primary physical custody to the husband, and to award the husband child support in accordance with Rule 32, Ala. R. Jud. Admin. The husband also asked the trial court for temporary physical custody of the son and child support during the pendency of the divorce proceedings.

The wife counterclaimed for a divorce and asked the trial court to, among other things, award her physical custody of the son, award her child support for the benefit of the son, award her alimony, and order the marital residence to be sold and the proceeds of the sale to be equitably divided.

The trial court issued a pendente lite order on November 9, 2006, granting joint legal custody of the son to the parties, with the son’s primary residence with the husband, subject to specified visitation rights of the wife. The wife was ordered to pay $250 a month in child support in accordance with an agreement the parties had reached in mediation.

On April 10, 2007, the wife filed a motion seeking emergency custody of the son, alleging that the son had been in her exclusive custody for 12 consecutive days because the husband was hospitalized but would not inform the wife of his medical condition or when he thought he would be released from the hospital. On April 18, 2007, the trial court entered a pendente lite order awarding physical custody of the son to the wife. The trial court denied the husband’s motion to reconsider the award of custody of the son to the wife.

The husband subsequently amended his complaint for a divorce to request an award of alimony and to include as grounds for the divorce emotional and mental cruelty; physical cruelty; adultery; emotional, physical, and financial neglect; and abandonment.

After conducting two ore tenus hearings, the trial court, on January 16, 2008, entered a judgment divorcing the parties on the ground of incompatibility of tempera-merit. The divorce judgment, among other things, granted the parties joint legal custody of the son, “with primary residence of [the son] being placed with the [wife],” subject to visitation rights of the husband; ordered the husband to pay $102.71 per month in child support; awarded the husband “exclusive use of the marital residence,” with an order to pay the debt thereon; ordered the husband to “refinance the debt on the marital residence within 100 days and ... pay to [the wife] the sum of $56,375.50 as her part of the net equity” in the residence; awarded the wife the parties’ jointly owned timeshare; awarded the wife the parties’ jointly owned Janus fund; awarded the husband the parties’ jointly owned “Grady property”; and awarded the parties certain vehicles, subject to the debts on those vehicles.

On February 14, 2008, the husband filed a motion to alter, amend, or vacate the judgment or, in the alternative, a motion for a new trial and requested a stay of execution of the trial court’s divorce judgment. On February 15, 2008, the wife filed a “Motion to Amend/Supplement Final Decree of Divorce (Rule 59[, Ala. R. Civ. P.]) [and] Motion to Show Cause.” The wife alleged that the husband would not be able to refinance the debt on the marital residence because he had intentionally failed to pay the mortgage on the residence.

The trial court conducted a hearing on the parties’ postjudgment motions, and on March 26, 2008, the trial court issued an order amending the final judgment of divorce. The trial court, among other things, ordered the sale of the marital residence, but it allowed the husband to have continued use of the marital residence until it sold; the trial court ordered the husband to pay the wife $56,375.50 from the sale proceeds, and the remaining balance of the sale proceeds were awarded to the husband.

The husband filed his notice of appeal to this court on April 25, 2008. The husband alleges five issues on appeal: 1) that the trial court exceeded its discretion in awarding physical custody of the son to the wife, 2) that the trial court erred as a matter of law in awarding child support to the wife, 3) the trial court exceeded its discretion in the division of the marital property and in its failure to award alimony to the husband, 4) that an order entered by the trial court on April 23, 2008, is void, and 5) that an order entered by the trial court on October 20, 2008, is void.

The testimony presented to the trial court revealed the following pertinent facts. The wife was 41 years old at the time of the final hearing, and she is a retired member of the United States Air Force; she was on active duty during a large part of the parties’ marriage. The husband was 49 years old at the time of the final hearing, and he had not had a job since 2003. The husband received a back injury during his service in the United States Army, and at the time of the final hearing his only income was disability benefits from the Social Security Administration and from the Veteran’s Administration (“the VA”). The husband was the primary caretaker of the son because the wife worked full time.

The wife denied having a violent temper, but she did admit to hitting the husband on his arm, on one occasion in 1998, because the husband would not communicate with her. The wife stated that she “hit him about four times, open hand, on his arm as he blocked.” The husband testified that the reason the wife hit him on that one occasion was because he went to a bar after work and stayed out late, without telling the wife where he was. In his testimony he stated: “she came over [to the bed] and started beating on me and saying that I could have at least told her that I was going out because something could have happened .... ”

The wife characterized the husband as both “suicidal” and “homicidal.” She testified that, at one point during an argument, the husband had put his hands around the wife’s neck “in a choking method.” The wife testified, that during her struggle to remove the husband’s hands from around her neck, they had both fallen onto their bed, which broke.

The wife further testified that the husband always carried a loaded gun in the driver’s side door pocket of his vehicle. She further alleged that the husband had attempted to leave the son alone in the vehicle with the loaded gun while the parties went inside a store.

The wife testified that she had been diagnosed with thyroid cancer in 2005 and that her treatment had required two surgeries to remove the cancerous gland and three courses of radiation — one in August 2005, one in January 2006, and one in January 2007. The wife testified that her cancer is now in remission. The wife stated that the husband had been the primary caregiver to the son during her radiation treatments because her doctor had warned her that the radiation could have a harmful effect on the son; therefore, the wife decided to stay in a hotel for approximately one week after her radiation treatments. The wife also admitted that the husband had been the primary caregiver to the son while she was on active duty in the Air Force and that the husband had done the majority of the cooking after she retired from the military.

After the husband filed for a divorce in March 2006, the husband and the wife continued to live in the marital residence. The wife testified that, during that time, the parties had frequently gotten into arguments and that the police had been called on several occasions. As a result, the parties discussed the need for one of them to move out of the marital residence, and the wife agreed to find an apartment. The parties discussed the fact that the wife’s name was on most, if not all, of the utility bills for the marital residence; the wife testified that she and the husband had agreed to have the name on the utility bills changed to the husband’s name so the wife could activate utility services at the apartment she had planned to rent. This did not require the utilities to be “cut off’ as the husband alleged.

While the wife took the son to Disney World on vacation in August 2006, the husband changed all the locks to the marital residence. Upon their return, the husband allowed the wife and the son inside the marital residence, but after the wife took the son to school the next morning, she was unable to gain reentry into the marital residence. The wife was forced to move into the one-bedroom apartment where her 20-year-old son lived. She testified that there was no room for the son in her older child’s apartment. She stated that she had had no choice but to leave the son with the husband because she had thought it would be in the son’s best interest to keep his living environment as stable as possible. The wife subsequently bought a three-bedroom home, but she testified that the husband had refused to allow her to take any of the furnishings from the marital residence.

The husband had custody of the son from August 2006 until April 2007, when the wife filed an emergency petition for a change in pendente lite custody. The "wife testified that, after she gained custody of the son, she had the Social Security benefits that were allotted to the son through the husband’s disability payment sent to her. The husband did not make any child-support payments after she gained custody of the son.

At the time of the hearings in this matter, the wife had three sources of income and earned $6,494.88 per month. She received $3,059.88 a month from a consulting contract with a health-care facility, which was due to expire at the end of January 2008; she received $1,427 per month in military-retirement benefits; and she received $2,008 a month in “temporary” disability benefits from the VA. The husband received Social Security disability benefits and benefits from the VA in the amount of $4,500 a month, which included benefits allotted for the son in the amount of $443 a month. The disability benefits received by the husband for the benefit of the son are used by the parties to pay the son’s private-school tuition. The wife testified that the husband was 60% disabled but that he chose to have an “unemployable” status; the wife testified that she believed the husband could work.

The parties then testified as to their assets and liabilities. The parties agreed that the marital residence was worth approximately $285,000; the mortgage on the marital residence was approximately $200,000 at the time of the hearings. The parties also jointly owned a piece of land in Grady worth approximately $30,800. The parties also jointly owned a timeshare that they had purchased in 2006, which was valued at approximately $20,000. The wife testified that the husband has never used the timeshare. She further testified that the timeshare was paid in full by a loan the parties took on their GMC Yukon Denali sport-utility vehicle. The wife had paid the timeshare dues for 2006 and 2007, in the amount of $568 and $648, respectively. The wife testified that she had opened a mutual fund (“the Janus fund”) before the parties were married but that she had added the husband’s name to the account after their marriage; the balance of the Janus fund at the time of the hearings was approximately $2,249.05.

The parties owned four vehicles: a 1976 Volkswagen that was “in the shop,” a 1994 BMW 318i, a 2002 GMC Yukon Denali, and a 1984 Chevy pickup truck. During the pendency of the divorce proceedings, the husband purchased two Mercedes automobiles; the husband wrecked the first Mercedes he had purchased in October 2006, but he subsequently bought a 2007 model that he was driving at the time of the final hearing. The husband testified that he paid $550 a month for the 2007 Mercedes and that, at the time of the final hearing, the husband owed approximately $35,000 on the car.

The husband testified at the second hearing that he had deliberately stopped making the mortgage payments on the marital residence, despite having been ordered by the court to make those payments, because he thought this would force the trial court to hold the second hearing at an earlier date. At the time of the second hearing, the husband had not paid the mortgage in three months, and the wife had been notified by their mortgage company that it was beginning foreclosure proceedings on the marital home. The wife introduced evidence indicating that her credit score had dropped nearly 150 points from May 2007 to January 2008 as a result of the husband’s failure to pay the mortgage on the marital residence, which was also in her name.

The husband stopped exercising his visitation rights with the son in October 2007. The wife tried to schedule visitation for the husband with the son, through her attorney, so that the husband could spend time with the son during the Thanksgiving and Christmas holidays, but the husband refused. The husband testified that he did not exercise his visitation rights because, he said, the wife had threatened to call the police if she needed to have the son returned home after a visit with the husband; the husband stated that he did not want to “traumatize” the child if the wife decided this action was necessary.

Discussion

I. Custody of the Son

“ “When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.’
“Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).... ‘Moreover, matters of child custody lie within the sound discretion of the trial court.’ Dean [v. Dean], 998 So.2d [1060,] 1064 [ (Ala.Civ.App.2008) ]. ‘Alabama law gives neither parent priority in an initial custody determination.... The controlling consideration in such a case is the best interest of the child.’ Ex parte Byars, 794 So.2d 345, 347 (Ala.2001) (citing Ex parte Couch, 521 So.2d 987 (Ala.1988)).”

Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008).

On appeal, the husband argues that § 30-3-131, Ala.Code 1975, creates a presumption in his favor that primary physical custody of the son should not have been awarded to the wife. Section 30-3-131, a part of the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala. Code 1975 (“the Act”), states:

“[A] determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence.”

The Act also states a further presumption, found in § 30-3-133, Ala.Code 1975:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent’s choice, within or outside the state.”

The husband argues that the trial court did not properly apply the Act because the trial court awarded primary physical custody of the son to the wife even though there was evidence indicating that the wife had perpetrated domestic violence against the husband. The trial judge did not make any specific findings of fact regarding the alleged incident of domestic abuse by the wife against the husband. However, this court, in Giardina v. Giardina, 987 So.2d 606, 615-16 (Ala.Civ.App.2008), noted that, in Ex parte Farm, 810 So.2d 631 (Ala.2001),

“the supreme court held that the plain language of the Custody and Domestic or Family Abuse Act contains no requirement that a trial court make express findings, 810 So.2d at 633, and in so holding it reaffirmed the well-established principle that ‘“[w]here a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous,” ’ 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)).
“In McClelland v. McClelland, 841 So.2d 1264, 1267 (Ala.Civ.App.2002), this court outlined three circumstances under which the trial court is not required to apply the presumption of § 30-3-133:
“ ‘This court assumes that the trial court found either that the acts alleged by the wife did not occur, that the husband’s acts did not constitute domestic abuse, or that both parties were guilty of abusive behavior. See J.H.F. v. P.S.F., 835 So.2d 1024, 1029 (Ala.Civ.App.2002).... ’
841 So.2d at 1268-69. If one of the three circumstances outlined in McClel-land exists in a given case and the trial court is therefore not required to apply the presumption, then certainly the trial court is not required to make an express determination as to whether the presumption has been rebutted.”

We conclude that there was sufficient evidence from which the trial court could have determined that both the wife and the husband were guilty of abusive behavior. The wife admitted to hitting the husband four times on the arm, but the wife also offered undisputed testimony that the husband had tried to choke her during an argument. There was no evidence indicating that those incidents had any effect on the son; in fact, the son had not yet been born when the wife hit the husband in 1998.

The evidence also supports a finding by the trial court that it would be in the son’s best interest for the wife to have primary physical custody of the son. Although the husband had been the child’s primary caregiver, there was no evidence indicating that the wife was unfit to care for the son. The evidence showed that the wife was retired from the Air Force and that her cancer was in remission. Although the husband’s fitness as a parent was never questioned, the evidence suggested that the husband had some reckless traits, such as keeping a loaded gun in the car with the son. There was also evidence indicating that the husband had refused to exercise his visitation, despite the fact that the wife, through her attorney, had attempted to have the husband visit with the son during the Thanksgiving and Christmas holidays. Therefore, because the trial court’s judgment contained the initial custody determination, and because the only consideration of the trial judge was the best interests of the son, we conclude that the trial court did not err in awarding primary physical custody of the son to the wife.

II. Child Support

“ ‘ “Matters related to child support ... rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong.” ’ Volovecky v. Hoffman, 903 So.2d 844, 847 (Ala.Civ.App.2004) (quoting Jackson v. Jackson, 777 So.2d 155, 158 (Ala.Civ.App.2000)).

“ ‘When the [parties’] combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor’s ability to pay for those needs.... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.’

“Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala.Civ.App.1995) (footnote omitted).”

Burgett v. Burgett, 995 So.2d at 912-13.

The husband argues that the award of child support to the wife should be reversed because neither the husband nor the wife filed a CS-41 form (“Child Support Obligation Income Statement/Affidavit”). However, this court has held that “[wjhen the combined adjusted income [of the parents] exceeds $10,000 per month, the amount of child support should be left to the discretion of the trial court.” Dyas v.Dyas, 683 So.2d 971, 973 (Ala.Civ.App. 1995).

In O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996), this court held that, despite the parties’ failure to file CS-41 forms relating to child support, the record clearly established that “the parties’ income far exceeded the maximum amount of income dealt with in Rule 32. Therefore, the amount of child support to be awarded is discretionary with the trial court, and we find the amount awarded in this case to be reasonably related to the child’s needs.”

In the present case, the parties combined monthly income exceeds $10,000. The trial court ordered the husband to pay $102.71 in child support to the wife per month, in addition to the $443 the wife was receiving on behalf of the son from the husband’s disability benefits. However, there is nothing in the record to suggest that the trial court heard evidence of the “reasonable and necessary needs” of the son. Dyas 683 So.2d at 973. The wife concedes in her brief to this court that the “record contains very little in way of testimony regarding the expenses attributable to the child.”

In Dyas, this court reversed an award of child support because the record was “devoid of any evidence relating to the expenses associated with the present reasonable and necessary needs of the children.” 683 So.2d at 973.

Therefore, we hold that the trial court’s award of child support is unsupported by the evidence, and we reverse that portion of the divorce judgment pertaining to the award of child support and remand the case for further proceedings consistent with this opinion.

III. Division of Property and Alimony

“On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).
“When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘ “the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.” ’ Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where ... the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 858 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App. 1998). It is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Fann, 810 So.2d 631 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).”

Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003).

After a review of the testimony of the parties on the record and the factors set forth in Ex parte Elliott, 782 So.2d 308 (Ala.2000), we cannot conclude that the trial court exceeded its discretion in dividing the marital property. The parties jointly owned three pieces of property at the time of the hearings: 1) the timeshare, valued at approximately $20,000, was awarded to the wife; 2) the property in Grady, valued at approximately $30,800, was awarded to the husband; and 3) the marital home, valued at $285,000, with a debt of approximately $200,000, was ordered to be sold, with the wife being awarded $56,375.50 from the sale proceeds and the husband being awarded any remaining sale proceeds. The husband was also allowed to keep all the furnishings in the home, and he was awarded the use and enjoyment of the marital home until it was sold.

The wife was awarded the 1994 BMW 318i and the 2002 GMC Yukon Denali, which was subject to a lien incurred so that the parties could pay for the timeshare; the husband was awarded the 1976 Volkswagen, the 1984 Chevy truck, and the 2007 Mercedes. The parties were ordered to pay the debts on the vehicles that they were awarded. The wife was also awarded the Janus fund, which she had opened before the parties were married and which contained a balance of $2,249.05. We cannot conclude that the division of the parties’ property was so inequitable as to exceed the trial court’s discretion.

The award of alimony is likewise dependent on the same factors. See Ex parte Elliott, supra. We note that both parties have a history of health problems but that the husband receives over $4,000 a month in disability benefits. The wife testified that, of her three sources of income, the $3,059.88 she received per month from a consulting contract was due to expire at the end of January 2008, and she was unsure if the contract would be renewed. The wife also described her disability benefits, in the amount of $2,008 per month, as “temporary.”

The trial court was also permitted to take into account “ ‘the conduct of the parties and fault with the regard to the breakdown of the marriage.’” Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000) (quoting Myrick v. Myrick, 714 So.2d 311, 315 (Ala.Civ.App.1998), citing in turn Huntress v. Huntress, 555 So.2d 1103 (Ala.Civ.App.1989)). The evidence established that the husband had filed for divorce twice, once in 2005 and once in 2006, in the midst of the wife’s cancer treatments. The wife testified that the husband had never accompanied her to radiation appointments. Based on the husband’s monthly disability income, his property award, and his conduct regarding the breakdown of the marriage, we cannot say the trial court exceeded its discretion in declining to award the husband alimony.

IV. The April 23, 2008, Order

After the trial court amended the original divorce judgment on March 26, 2008, the wife filed a second postjudgment motion entitled “Motion to Reconsider Order to Add Provision of Contempt and Motion for Order of Contempt/Sanctions,” on April 10, 2008. The husband alleges that an order dated April 23, 2008, addresses the wife’s second postjudgment motion and that that order is void because it was in response to a successive post-judgment motion seeking reconsideration of the wife’s first Rule 59(e), Ala. R. Civ. P., motion.

The April 23, 2008, order is not in the record. There is a notation on the case-action summary dated April 23, 2008, that shows that the trial court granted the wife’s “motion to reconsider” because the husband had not paid the past-due indebtedness on the mortgage; the trial court further noted that the wife would be reimbursed for any mortgage payments she made on the marital residence in addition to her property award from the divorce judgment.

The wife’s first postjudgment motion, made pursuant to Rule 59(e), Ala. R. Civ. P., requested an amendment to the original divorce judgment as it pertained to the marital residence. In that motion the wife stated:

“The former husband testified at final hearing that he ‘intentionally’ did not make payments toward the [mortgage on the marital residence]. This same action has damaged both parties!’] credit. The former wife has great concern that the former husband “will not’ or ‘cannot’ refinance the same residence. Therefore, she would request that the court allow her to ‘File a motion’ (after the 100 days that is allowed to the former husband) asking the court to ‘Revisit’ this provision and order that the residence be sold if the former husband does not comply with the court’s order.”

In the amended divorce judgment, the trial court accelerated the relief the wife had requested and immediately ordered the sale of the marital residence, as opposed to giving the husband 100 days to refinance the marital residence.

The wife then filed a second post-judgment motion, just 15 days after the trial court had amended the divorce judgment, asking the trial court to issue an order of contempt against the husband, to order his incarceration, to order that the wife be allowed to take possession of the marital residence to prepare the house for sale, and to order that the wife be reimbursed for any mortgage payments she would be required to make to keep the house out of foreclosure. In support of this motion, the wife alleged that the husband had failed to pay the mortgage on the marital residence and that the mortgage payments were $2,800 in arrears. The wife further alleged that her counsel had suggested two realtors to assist the parties in the sale of the marital residence but that the husband had not agreed to list the residence with either realtor. The wife also expressed her fear that the husband would not make any further mortgage payments and would allow the marital residence to go into foreclosure, thus causing the equity in the home to be lost.

This court has held that “[successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed.” Gold Kist, Inc. v. Griffin, 659 So.2d 626, 627 (Ala.Civ.App.1994) (citing Ex parte Dowling, 477 So.2d 400 (Ala.1985)).

In Ex parte Dowling, 477 So.2d at 404, our supreme court held that

“the Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e)[, Ala. R. Civ. P.,] motion to alter, amend, or vacate a judgment ..., the party aggrieved by the new judgment may have had no reason to make such a motion earlier.”

We conclude that the trial court did not have jurisdiction to consider the wife’s successive postjudgment motion because the divorce judgment, as amended in response to the wife’s first Rule 59(e) motion, did not aggrieve the wife in such a way as contemplated by Ex parte Dowling. The wife could have sought the relief she requested in the second postjudgment motion when she filed her first postjudgment motion. The granting of the wife’s first postjudgment motion by the trial court did not aggrieve the wife.

In her brief to this court, the wife stated that she sought “an amendment of the amended judgment, which specifically ordered the husband to be responsible for payment of the debt associated with the marital residence, to permit her to make those payments so as to prevent a foreclosure.” The wife also acknowledged in her second postjudgment motion that, at the time of the hearing on her first post-judgment motion, she was aware that the husband had not made the mortgage payments on the marital residence and that the marital residence was at risk of foreclosure. Based on the wife’s knowledge of those facts, the wife could have sought the relief she requested in her second post-judgment motion in her first postjudgment motion. Nothing in the trial court’s amended divorce judgment aggrieved the wife to such an extent that would permit her to file a successive postjudgment motion.

“ ‘[A] judgment entered without subject-matter jurisdiction is void, ... and ... a void judgment will not support an appeal.’ ” T.B. v. T.H., [Ms. 2071009, April 17, 2009] — So.3d -, - (Ala.Civ. App.2009) (quoting K.R. v. D.H., 988 So.2d 1050, 1052 (Ala.Civ.App.2008)). Therefore, we dismiss this portion of the husband’s appeal, and we remand the case with instructions to the trial court to vacate the April 23, 2008, order.

V. October 20, 2008, Order

On September 22, 2008, the wife requested an emergency hearing because the marital residence was in foreclosure and the arrearage for the mortgage on the residence was “over $7,000 plus attorneys fees and costs.” The record does not contain an order of the trial court responding to the wife’s petition, but the case-action summary notes that the trial court entered an “ex parte order to evict” on October 20, 2008. The wife states in her brief to this court that the October 20, 2008, order is from a separate contempt action filed by the wife, that the entry in the case-action summary for case no. DR-06-150 referring to the contempt action was a mistake by the trial court, and that the contempt action was given a separate case number on the Elmore Circuit Court’s docket. See Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007) (“[W]hen a party files a contempt motion alleging a violation of the provision of a previously entered final divorce judgment, that contempt proceeding is separate and independent from the action in which the divorce judgment was entered and does not affect the finality of the divorce judgment.”).

The husband argues that the October 20, 2008, order is void because wife failed to pay the required filing fee when she filed her petition for an emergency hearing. See Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (“The failure to pay the filing or docketing fee is a jurisdictional defect.”). However, we note that the husband filed his notice of appeal in civil action number DR-06-150 to this court on April 25, 2008, approximately six months before the trial court issued the October 20, 2008, order. To our knowledge, the husband did not file a separate notice of appeal in the wife’s separate contempt action, nor did he petition this court to consolidate the appeal of this case and any appeal in the contempt action. Therefore, we do not have jurisdiction to review the trial court’s October 20, 2008, order from the separate contempt action. See Rule 3(a)(1), Ala. R.App. P. (“In civil cases, an appeal permitted by law as of right shall be taken to an appellate court by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4[, Ala. R.App. P.]”). See also § 12-22-2, Ala.Code 1975 (“From any final judgment of the circuit court ..., an appeal lies to the appropriate appellate court as a matter of right by either party ..., within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure.”).

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

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

THOMAS, J., recuses herself.

      . The husband had previously filed for divorce in 2005, but the parties reconciled and that petition was dismissed.

      . The trial court's pendente lite order awarding physical custody of the son to the wife did not award any visitation to the husband. However, the record reflects that the husband did exercise visitation with the son through October 2007.

      . The first hearing was held on August 9, 2007, and the second hearing was held on January 10, 2008.

      . The April 23, 2008, order, and the October 20, 2008, order are not included in the record on appeal.

      . The wife’s 20-year-old son was from a previous relationship.

      . We note that although the wife's second postjudgment motion is styled as a "Motion to Reconsider Order to Add Provision of Contempt," the trial court did not treat the wife's motion as a separate contempt action, which requires a separate filing fee. See Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). Instead, the trial court treated the wife's motion as a successive postjudgment motion by purporting to amend the amended divorce judgment. There is no law that forbids the wife from filing a separate contempt action against the husband to seek the relief she requested in her second postjudgment motion.


text:
    Stella SHAMBURGER v. Diane LAMBERT.
    2080218.
    Court of Civil Appeals of Alabama.
    May 29, 2009.

      Ronnie L. Williams of Williams & Associates, LLC, Mobile, for appellant.
    Vanessa Arnold Shoots, Mobile, for ap-pellee.
   MOORE, Judge.

On May 14, 2008, Stella Shamburger, in her individual capacity, filed an unlawful-detainer action against Diane Lambert. In that action, Shamburger alleged that Lambert was residing "without permission and without paying rent on property that had become part of the probate estate of Aldine White; Shamburger had previously been appointed as the personal representative of White’s estate. On July 10, 2008, the Mobile District Court (“the district court”) ordered Lambert to vacate the premises within seven days and to pay Shamburger $7,500 in back rent. Lambert filed a timely motion to alter, amend, or vacate the judgment, arguing that the district court lacked subject-matter jurisdiction; the district court denied that motion on July 28, 2008. Lambert then filed a notice of appeal to the Mobile Circuit Court (“the circuit court”) on September 5, 2008; the action in the circuit court was assigned case number CV-08-1722.

On September 8, 2008, Shamburger filed a motion to dismiss the notice of appeal on the ground that it had not been timely filed. Before the circuit court ruled on that motion, Lambert filed a petition for a writ of mandamus in case number CV-08-1722 on October 9, 2008. In that petition, Lambert requested that the circuit court issue a writ instructing the district court to vacate the July 10, 2008, judgment on the ground that the district court had lacked subject-matter jurisdiction to enter the judgment. On October 17, 2008, the circuit court entered the following judgment:

“[Lambert] filed a Petition for Writ of Mandamus directing the District Court of Mobile County to set aside the judgment in DV-2009-900894, Shamburger v. Lambert for lack of subject-matter jurisdiction. [Shamburger] brought suit in her individual capacity, not in her capacity as personal representative of the estate of Aldine White. [Shamburger] lacks standing to sue in her individual capacity. Thus, the District Court of Mobile County is without subject-matter jurisdiction. Accordingly, Defendant’s Petition for Writ of Mandamus directing the District Court of Mobile County to set aside the judgment [in] DV-2008-900894 Shamburger v. Lambert for lack of subject-matter jurisdiction is hereby GRANTED.”

On October 22, 2008, Shamburger filed a “motion to reconsider” in which she asserted that she was the duly-appointed personal representative of the estate of Aldine White and that she had the right to bring the unlawful-detainer action in her own name pursuant to Rule 17, Ala. R. Civ. P. Shamburger also filed a motion to substitute herself in her capacity as the personal representative of the estate of Aldine White as the proper party plaintiff. The circuit court denied both motions by orders dated October 23, 2008.

On December 3, 2008, Shamburger filed a petition for a writ of mandamus with this court. This court elected to treat the petition as an appeal. See Weaver v. Weaver, 4 So.3d 1171 (Ala.Civ.App.2008). Sham-burger raises three issues on appeal: (1) that the circuit court erred when it failed to dismiss Lambert’s appeal from the district court as untimely; (2) that the circuit court erred in considering Lambert’s petition for a writ of mandamus after Lambert had allowed the time to file an appeal to expire; and (3) that the circuit court erred when it denied Shamburger’s motion to substitute Shamburger, in her capacity as the personal representative of the estate, as the real party in interest. Because we conclude that the resolution of the first two issues are dispositive, we decline to address the third issue raised by Sham-burger.

The circuit court should have dismissed Lambert’s appeal. Section 6-6-350, Ala.Code 1975, which governs unlawful-detainer actions, provides, in pertinent part:

“Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven days after the entry thereof, and appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts.”

The district court entered its final judgment on July 10, 2008. Lambert filed her motion to alter, amend, or vacate the judgment on July 21, 2008. See Rule 59(dc), Ala. R. Civ. P. The district court denied that motion on July 22, 2008. According to § 6-6-350, Lambert had until July 29, 2008, at the latest, to file her notice of appeal. Lambert did not file her notice of appeal until September 5, 2008. The failure to file a timely notice of appeal is a jurisdictional defect that prevented the circuit court from acquiring jurisdiction over the appeal. See Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007). “A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute.” Flannigan v. Jordan, 871 So.2d 767, 770 (Ala.2003).

Rather than dismiss the appeal, the circuit court purported to grant Lambert’s petition for a writ of mandamus filed on October 9, 2008. A petition for writ of mandamus is a proper means to review questions of subject-matter jurisdiction. Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000). However, in order to show entitlement to mandamus relief, a petitioner must show “(1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court.” Ex parte Davis, 930 So.2d 497, 499 (Ala.2005). “ ‘A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.’ ” Ex parte Moore, 880 So.2d 1131, 1133 (Ala.2003) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).

In this case, Lambert had at least two other adequate remedies. First, Lambert could have raised lack of standing in a timely appeal to the circuit court. See Ex parte R.S.C., 853 So.2d 228 (Ala.Civ.App.2002) (holding that petitioner had adequate remedy by appeal to attack plaintiffs alleged lack of standing and, therefore, petition for a writ of mandamus was inappropriate means by which to seek relief). Second, Lambert could have filed a Rule 60(b)(4), Ala. R. Civ. P., motion in the district court. In her postjudgment motion filed in the district court on July 21, 2008, Lambert did not assert lack of standing as a jurisdictional defect. Nevertheless, Rule 60 allows a party to move to set aside a judgment that is void for lack of subject-matter jurisdiction at any time. See Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003). The district court retained jurisdiction over the case to rule on such a motion because, as explained above, the circuit court had not acquired jurisdiction over the appeal because of the untimely filing of Lambert’s notice of appeal. Because Lambert had adequate remedies available to her, the circuit court erred in considering the petition for a writ of mandamus.

For the foregoing reasons, we reverse the October 17, 2008, judgment granting the petition for a writ of mandamus and order the circuit court to vacate that judgment and dismiss all proceedings in that court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . By granting Lambert’s petition for the writ of mandamus and issuing the writ, the circuit court effectively rendered Lambert's appeal moot.

      . Although § 6-6-350 grants only 7 days within which to file an appeal in unlawful-detainer actions, Rule 59(dc) grants a party 14 days to file a postjudgment motion in civil cases in the district court. We need not resolve this apparent conflict in this case because Lambert missed the appeal deadline even if it was extended by the filing of her postjudgment motion.