author: CARLTON, J.,

text:
    STATE of Mississippi, Appellant v. Charles MONTGOMERY, Jr. a/k/a Charles Montgomery a/k/a Charlie Montgomery, Jr., Appellee
    NO. 2016-CA-00849-COA
    Court of Appeals of Mississippi.
    10/31/2017

      Attorneys ' for appellant: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHOÑY LOUIS SCHMIDT JR.
    ATTORNEY' FOR APPELLEE: CHARLES MONTGOMERY JR. (PRO SE)
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Charles Montgomery filed a motion to vacate, set aside, and correct the decision-of the Mississippi Parole Board (Parole Board), which the Lauderdale County Circuit Court treated as a motion for post-conviction relief (PCR), alleging that the Parole Board violated Mississippi Code Annotated section 47-7-18(6) (Rev. 2015) by imposing a four-year setoff until his next parole hearing. The circuit court granted Montgomery’s PCR motion and referred the matter 'to the Parole Board to provide a parole-hearing date in accordance with section 47-7-18(6). Finding error, we reverse and render the circuit court’s judgment.

FACTS

■ 12. In. July 1982, a , Lauderdale County jury convicted Montgomery of capital murder. The circuit court sentenced Montgomery to life in prison. In- May 1983, a Cov-ington County jury convicted Montgomery of two. counts of forgery, for. which he received two twelve-year, six-month sentences that were ordered to run consecutively. Montgomery’s Mississippi Department of Corrections (MDOC) sentence-computation record reflects that the circuit court ordered that Montgomery’s forgery sentences run consecutively to his life sentence for capital murder. The MDOC sentence-computation record also listed Montgomery’s initial parole-eligibility date as March 28,1998.

¶ 3, The record' reflects that on March 24, 2016, the Parole Board denied Montgomery parole and set off Montgomery’s next parole-eligibility hearing for four years. On May 9, 2016, Montgomery filed his motion to vacate, set aside, and correct the decision of the Parole Board’ in accordance with section 47-7-18(6). In his motion,, Montgomery alleged that he is entitled' to receive a parole hearing at least “once per year”; therefore, he argued that the Parole Board lacked authority to impose a four-year setoff.

¶ 4. On May 17, 2016, the circuit court, treating Montgomery’s pleading as-a PCR motion, entered an order granting Montgomery’s request for relief. The circuit court acknowledged that at the time the Parole Board set off Montgomery’s next parole-eligibility-hearing date, section 47-7-18(6) “had been in effect since July 1, 2014.” The circuit court ■ also recognized “that [the] Parole Board has full discretion in deciding who is eligible for parole.” However, the circuit court held that

the issue in this matter is whether the [Parole] Board’s four[-]year set[ ]off is in compliance with the applicable statute. This court is not convinced of its jurisdiction and finds that this matter should be referred to the [P]arole [Bjoard for review to ensure that they provide a parole[-]hearing date that is in compliance with ... .[section] 47-7-18(6).

¶ 5. The State of Mississippi subsequently filed its notice of appeal.

STANDARD OF REVIEW

¶ 6. “When reviewing a trial court’s denial or dismissal of a PGR motion» we will only disturb, the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a.-de novo standard of review.” Lackaye v. State, 166 So.3d 560, 562 (¶ 5) (Miss. Ct. App. 2015).

¶ 7. The record reflects that Montgomery failed to file an appellate brief. We have held that “[a]n appellee’s failure to file a brief' on appeal is tantamount to [a] confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.” Clack v. City of Ridgeland, 139 So.3d 778, 781 (¶ 17) (Miss. Ct. App. 2014) (quoting Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss. 2000)).

DISCUSSION

¶ 8. The State argues that the circuit court lacked jurisdiction to hear Montgomery’s PCR claim regarding the Parole Board’s decision to set off his parole-eligibility-hearing date.

¶ 9. “[T]he grant or denial of parole is entirely within the Parole Board’s discretion, and the denial of parole is not subject to a statutory right of appeal.” Willard v. Mississippi State Parole Bd., 212 So.3d 80, 86 (¶ 19) (Miss. Ct. App. 2016). This' Court has recognized the Mississippi Supreme Court’s recent holding in Drankus v. Mississippi Parole Board, 224 So.3d 83, 85 (¶ 7) (Miss. 2017), that when a petitioner files a PCR motion in the circuit court to appeal the Parole Board’s decision to set off his parole-eligibility-hearing date, the circuit, court lacks jurisdiction to hear the appeal. Drankus v. State, 215 So.3d 1000, 1001 (¶ 7) (Miss. Ct. App. 2017). In explaining its decision, the supreme court cited Cotton v. Mississippi Parole Board, 863 So.2d 917, 920-21 (¶ 10) (Miss. 2003), stating “the circuit court had no authority to adjudicate the matters presented because there was no statutory mandate granting circuit' courts jurisdiction over appeals concerning the denial of parole.” Drankus, 224 So.3d at 85 (¶¶ 6-7); see also Smith v. State, 742 So.2d 1188, 1189 (¶ 6) (Miss. 1999) (Circuit courts lack jurisdiction to consider an issue directly under the exclusive purview of the Parole Board “in the absence of a statute authorizing the samé.”).

¶ 10. As a result, we find that the circuit court lacked jurisdiction to grant Montgomery’s PCR motion. We therefore reverse the judgment and render a judgment of dismissal without prejudice.

¶ 11. REVERSED AND RENDERED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      . In Drankus, the supreme court held that "the circuit'court ... ha[d] no jurisdiction to hear an appeal of. the [P]arole [B]oard’s decision to set[]off [the petitioner’s] next parole hearing for three years.” Drankus 224 So.3d at 85 (¶ 7).


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Sanders HOPKINS, Sr., Deceased, BY AND THROUGH Sanders HOPKINS, Jr., as Representative of the Estate of Sanders Hopkins, Sr., and the Wrongful Death Beneficiaries of Sanders Hopkins, Sr., Appellant v. CLC OF BILOXI, LLC d/b/a Biloxi Community Living Center, Appellee
    NO. 2016-CA-01090-COA
    Court of Appeals of Mississippi.
    10/31/2017
    ATTORNEY FOR APPELLANT: MATTHEW STEPHEN LOTT

      ATTORNEYS■ FOR APPELLEE: JOHN G. WHEELER MARGARET SAMS GRATZ
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Sanders Hopkins Jr. (Sanders), on behalf of Sanders Hopkins Sr.’s estate and as a wrongful-death beneficiary, appeals the decision of the Harrison County Circuit Court, Second Judicial District, dismissing his case against CLC of Biloxi LLC d/b/a Biloxi Community Living Center (CLC). He argues that the court erred in dismissing his case because CLC was added as a defendant prior to the running of the statute of limitations, and CLC was properly substituted for fictitious defendant John Doe 1.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Sanders Hopkins Sr. (Hopkins), deceased, was a dialysis patient who received dialysis treatments at Fresenius Medical Care’s South Mississippi Kidney Center (“Fresenius”) in Biloxi, Mississippi. Hopkins was routinely transported to his dialysis treatments by Mobile One Non-Emergency Transport Service LLC (Mobile One) due to his limited mobility caused by being wheelchair-bound. On or about December 10, 2013, while a passenger of Mobile One, Hopkins fell over in his wheelchair and hit his head. Hopkins was. a resident of CLC, and CLC, upon information and belief, supplied the wheelchair in question.

¶ 4. Sanders alleged that the wheelchair was not properly pushed down the ramp of the van as Hopkins was being moved into the Fresenius facility. A short time later, on the same day that the transportation-van incident occurred, Hopkins again hit his head and immediately began to have a headache associated with the falls. After his return to CLC, he continued to report a headache and was later taken to Biloxi Regional Hospital, where he was diagnosed with a subdural hematoma. Attempts to save him were unsuccessful, and he died on December 12,2013.

¶ 5. On March 31, 2015, Sanders filed suit against Mobile One and Fresenius. Prior -to filing his suit against Mobile One and Fresenius, Sanders had not asserted or indicated at any point during Hopkins’s treatment—or during the subsequent immediate investigation following Hopkins’s fall—that CLC had been negligent in its treatment- or that CLC’s negligence had caused Hopkins, directly or indirectly, to strike his head.'- However, approximately eleven months after filing the suit against Mobile One and Fresenius, Sanders filed a second amended complaint to add CLC to the lawsuit.

¶ 6. Sanders .sent a pre-suit notice to CLC on December 17, 2015—two years and five days after Hopkins’s death, and he filed his second amended complaint on February 22, 2016. In the amended complaint, Sanders alleged that’ CLC placed his father in an incorrectly sized wheelchair, which caused the wheelchair to tip over, resulting in his father’s injury and ultimately his death. CLC filed a motion to dismiss, asserting that the pre-suit notice did not toll the statute of limitations, and that Sanders’s claims against CLC were time-barred. The court granted CLC’s mo-' tion, and this appeal followed.

DISCUSSION

¶ 7. “The [circuit] court’s grant of a motion to dismiss based upon the statute of limitations presents a question of law to which this Court applies de novo review.” Anderson v. R & D Foods Inc., 913 So.2d 394, 397 (¶ 7) (Miss. Ct. App. 2005).

/. •' Statute of Limitations

¶8. Salidera "asserts that CLC should have been a party to the case from the beginning and argues that the statute of limitations was no impediment to CLC being added later. In support of his argument, he directs us to the following quote' from Neglen v. Breazeale, 945 So.2d 988, 990 (¶ 7) (Miss. 2006);

The discovery rule tolls the statute of .limitations until a plaintiff should have reasonably known .of some negligent conduct, even if the .plaintiff does not know with absolute certainty that the conduct was legally negligent. In other words, [the] statute of limitations begins •to run when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury, and the conduct of the medical practitioner.

(Internal citations omitted). Sanders acknowledges that a medical negligence claim for injuries or wrongful death arising out of the course of medical services must be filed within two years “from the date the alleged act, omission or neglect shall or with reasonable diligence might have been, first known or discovered, and, ... in no event more than seven (7) years after the alleged act, omission or neglect occurred.” Miss. Code Ann. § 15-1-36(2) (Rev. 2012). However, he argues that the determinative issue as to whether the statute of limitations had run when he added CLC to the lawsuit hinges upon the date that he could' have reasonably discovered the causal connection between CLC’s negligence and Hopkins’s injuries. He alleges that he could not have known what role CLC played in Hopkins’s death—since Hopkins was not in its care and custody at the time of the injury or death—until, at the earliest, Hopkins’s medical records were received from CLC in early 2015, and realistically not until the deposition ■ of the van driver for Mobile One was taken on September 14, 2015. Further, Sanders admits that although the injury was clearly known, CLC’s negligence was not.

¶9. Not surprisingly, CLC responds that the trial court was correct in finding that Sanders’s claims against CLC were barred by the statute of limitations, and was also correct in dismissing the claims with prejudice. As noted, Sanders filed his seconded amended complaint, which added CLC to the lawsuit, on February 22, 2016. Hopkins’s injury occurred on December 10, 2013, and he passed away two days later. CLC argues that the statute of limitations on Sanders’s claim expired December 10, 2015, but at the very latest, on December 12, 2015! We agree. Sanders knew on the date of the accident that Hopkins had Men out of the wheelchair that had been provided for him by CLC. This issue is without merit.

II. Substitution of Parties

¶ 10. Mississippi-Rule of Civil Procedure 9(h) states: • -

When a party is ignorant of the name of an opposing party and so alleges in his-pleading,' the opposing party may be designated by any name,- and when -his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

Rule 15(c)(2) of the Mississippi Rules of Civil Procedure provides that “[a]n amendment pursuant to Rule 9(h) .., relates back to the date of the original pleading.” Section 15-1-36(15) states that “[n]o action based upon the health[-]care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.” Section 15-1-36(15) also provides that, “[t]his subsec* tion shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified. therein by a fictitious name.” Id.

¶ 11. Sanders points us to Davenport, wherein this Court stated: ¡

[Ijgnorance of.the opposing, party for fictitious[-]party practice extends -beyond mere lack of knowledge of the opposing party’s -name. Even if the plaintiff knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against that person.

Davenport v. Hertz Equip. Rental Corp., 187 So.3d 194, 199 (¶ 14) (Miss. Ct. App. 2016) (quoting Womble By & Through Havard on Behalf of Womble v. Singing River Hosp., 618 So.2d 1252, 1267 (Miss. 1993) (overruled on other grounds). He asserts that he did not sit on his rights, as he was diligent in getting the medical records, diligent in filing the original complaint approximately one year after Hopkins’s death, and diligent in obtaining written and oral discovery. .

¶ 12. CLC responds that the relation-back privilege accorded to an amendment pursuant to Rule 9(h) is inapplicable to this case for two reasons: (1) CLC was known to Sanders when the original complaint was filed, and .(2) even if CLC was unknown to Sanders at the time Sanders filed the original complaint or before the statute of limitations ran, it was because Sanders did not exercise due diligence in attempting to gain such knowledge. We agree.

¶ 13. Clearly, .Sanders was not ignorant to CLC’s existence, as Hopkins had been a resident there since 2009. In addition, as the circuit court noted in its order, the medical records revealed that CLC was a potential defendant, as there was a notation in the records that “a Fresenius nurse told the CLC of Biloxi nurse that [Hopkins’s] wheelchair might be ‘top-heavy’.” CLC- contends that this is the only information Sanders relied on to bring it into the suit, and that information was available as soon as he obtained the " medical records, The circuit court also made the same finding, stating, “[Sanders] admits that the only basis for suing CLC of Biloxi is a nurse’s notes[,]”..which were-available in the medical records at the outset of the case. See Blailock v. Hubbs, 919 So.2d 126, 130 (¶¶[ 9-10) (Miss. 2005).

1114. “The relation[-]back'privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to 'actually exercise a reasonably diligent inquiry into the identity of the fictitious party.” Wilner v. White, 929 So.2d 315, 323 (¶ 7) (Miss. 2006) (quoting Doe v. Miss. Blood Servs. Inc., 704 So.2d 1016, 1019 (¶ 13) (Miss. 1997)). Sanders was derelict in not adding CLC until after the statute of. limitations had run. The identity of CLC was known, and its potential liability was known at the time Sanders filed his original complaint. For the reasons discussed, we.find no error in the circuit court’s dismissal of Sanders’s lawsuit based on the running of the statute of limitations.

¶ 15. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES AND TINDELL, JJ., NOT PARTICIPATING.


author: LEE, C.J.,

text:
    Zachary Dakota WEBER, Appellant v. Krystal Bryant WEBER, Appellee
    NO. 2016-CA-01339-COA
    Court of Appeals of Mississippi.
    11/07/2017

      ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE
    ATTORNEY FOR APPELLEE: HARRY RAY LANE
   LEE, C.J.,

FOR THE COURT:

¶ 1. This appeal concerns a custody dispute where the chancellor awarded the mother physical custody of the minor child. The father now appeals, arguing that the chancellor erred. Finding no error, we affirm. 1 '

FACTS AND PROCEDURAL HISTORY

¶2. Zachary Dakota Weber (Dakota) and Krystal Bryant Weber had a son together in December 2011. At the time of their son’s birth, Dakota was eighteen years old and Krystal was seventeen years old, so they lived with Dakota’s mother and stepfather in Petal, Mississippi. Dakota and Krystal married in April 2014, but separated approximately eight months later. On December 17, 2015, Dakota filed a complaint for divorce in the Forrest County Chancery Court, alleging several fault grounds and requesting custody of the couple’s minor child. Ultimately, the parties withdrew their fault grounds and agreed to an irreconcilable-differences divorce.. They entered into a property-settlement agreement, reserving the issues of custody, visitation, and child support for the chancellor’s consideration.

¶ 3. After a trial, the chancellor conducted an Albright analysis and awarded Krystal physical custody of the minor child, with both parties to have legal custody. The chancellor ordered Dakota to pay $300 per month in child support and set a visitation schedule.

¶ 4. In his appeal, Dakota argues that the chancellor erred in applying the Al-bright factors and in failing to award the parties joint custody.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review regarding child custody is a limited one. C.W.L. v. R.A., 919 So.2d 267, 270 (¶ 8) (Miss. Ct. App. 2005). This Court will not disturb a chancellor’s findings “unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 626 (¶ 8) (Miss. 2002). However, “[a] chancellor’s conclusions of law are reviewed de novo.” Lowrey v. Lowrey, 25 So.3d 274, 286 (¶ 26) (Miss. 2009).

DISCUSSION

I. Albright Factors

¶ 6. In his first issue on appeal, Dakota argues that the chancellor erred in applying the Albright' factors. The factors used to determine what is in the best interest of a child with regard-to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who has had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; (4) the employment of the parents -and responsibilities of that employment; (6) the physical and mental health and age of the parents; (6) the emotional ties' of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home, environment and employment , of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). “An Albright analysis is not a mathematical equation.” Hall v. Hall, 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014) (citation omitted). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Id. at 828 (¶ 21).

¶ 7. Here, the chancellor found that seven factors were neutral,, three factors (two, three, and seven) favored Krystal, and one factor was not applicable due to the child’s age. The chancellor addressed factor three—which parent has the best parenting skills and which has the willingness and capacity to proyide primary childcare—as two separate factors, finding that Krystal had better parenting skills but both parents had the willingness and capacity to provide primary childcare. On appeal, Dakota questions-the chancellor’s ruling on the following factors that he believes weigh in his favor: continuity of care, parenting skills, the willingness and capacity to provide primary childcare, and the stability of the home environment.

A.Continuity of Care Prior to the Separation

¶ 8. In regard -to this factor, the chancellor noted that Krystal was the primary caregiver prior to the separation. Dakota argues that he spent more'time with the minor child after the' separation; thus, he was the primary caregiver. However, this factor focuses on the time period prior to the separation, Here, Dakota admitted during trial that due to his work schedule, Krystal was the primary caregiver prior to their separation. We cannot find the chancellor erred in finding this factor favored Krystal.

B.Parenting Skills

¶ 9. The chancellor found this factor favored Krystal, mostly because Krystal had been the child’s primary caregiver prior to the separation. Dakota contends that he offered more proof of his parenting skills; thus, this factor should favor him. However, evaluating the credibility of witnesses is the chancellor’s responsibility. See Butler v. Butler, 218 So.3d 769, 762 (¶ 9) (Miss. Ct. App. 2017). The chancellor determined that Krystal’s testimony was more credible in this instance. We cannot find the chancellor erred in finding this factor favored Krystal.

C.Willingness and Capacity

¶ 10. Although this factor is technically part of the “parenting skills” factor, the chancellor found that . this factor was neutral based upon the parties’ testimony that both were willing to provide care. The chancellor noted that both Krystal and Dakota had a family support system to provide help when needed.

¶ 11. Dakota argues that Krystal’s decision not to keep the child for her full visitation shows an unwillingness to provide primary childcare. Dakota introduced selected text messages between Krystal and himself as proof. After the parties separated, they agreed to alternate weekly visits beginning and ending on Sunday. Krystal admitted that she sent the minor child early to his visitation with Dakota on several occasions. The evidence showed that on some of these occasions, Krystal was sick, was working late, or did not have reliable, transportation or childcare. Krystal testified that if their son wanted to begin his weekly visitation with Dakota earlier than Sunday, then she would let him. We cannot find that the chancellor erred in finding this factor was neutral.

D. Stability of the Home Environment

¶ 12, The chancellor found this factor neutral, noting that both parties lived with their parents and both parties relied on their parents to provide help with their son. Dakota contends that he has lived with his mother and stepfather since his separation, while Krystal has lived several places since the separation. As a result, Dakota claims his home environment is more stable. The chancellor did recognize that after the parties separated, Krystal lived in three separate locations for short periods before moving in with her mother and stepfather. Although this was discussed elsewhere in the chancellor’s opinion, the chancellor was concerned that Dakota’s girlfriend had lived with him in his mother’s house for over one year, moving out prior to the trial. The minor child slept in a bed next to the bed Dakota and his girlfriend-, shared.. We cannot find that the chancellor erred in finding this factor was neutral.

¶ 13. In conclusion, it is the chancellor’s duty to weigh the evidence, and she is in a better position than this Court to judge the veracity of witnesses and credibility of evidence. The chancellor made on-the-record findings as to every Albright factor, and there is no evidence that her decision was manifestly in error or based on an erroneous legal standard. Therefore, we affirm as to this issue.

II. Joint Custody

¶ 14. Dakota argues that the chancellor should have awarded the parties joint physical custody. In her opinion and judgment, the chancellor, citing Easley v. Easley, 91 So.3d 639 (Miss. Ct. App. 2012), noted that she could consider joint physical custody whether or not either party requested it. Here, neither party requested joint physical custody. In Easley, the chancellor was under the mistaken impression that he could only award joint physical custody if both parties requested it in an irreconcilable-differences divorce. Id. at 640 (¶ 4). This Court found otherwise and reversed for the chancellor to apply the correct legal standard. Id. at 640 (¶ 2). In this case, the chancellor determined that “joint physical custody would not promote the best interests of the child in this case based upon a preponderance of the evidence.” The chancellor noted her concerns about Dakota., and his girlfriend’s living arrangements prior to trial and Dakota’s lack of financial support for his son during the separation. We have reviewed the record, and we find no abuse of the chancellor’s discretion in declining to award joint physical custody.

¶ 15. AFFIRMED.

IRVING AND GRIFFIS, P.JJ, BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).


author: STUART, Justice.

text:
    EX PARTE CAREMARK RX, LLC, formerly known as MedPartners, Inc., and Caremark, Inc. (In re: James Taff v. Caremark Rx, LLC, formerly known as MedPartners, Inc., and Caremark, Inc.)
    1151160
    Supreme Court of Alabama.
    February 24, 2017
    Matthew H. Lembke and David G. Hymer of Bradley Arant Boult Cummings LLP, Birmingham;, and Daniel Gray McDowell of McDowell, Beason & Hamilton, PC, Russellville, for petitioner. .
    D. Frank Davis and John E. Norris of Davis & Norris, LLP, Birmingham; and Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville,.for respondent.
    Bruce J. McKee, John W. Haley, Scott A. Powell; Brian M. Vines, Ralph D. Cook, and Tempe D. Smith of Hare, Wynn, Newell & Newton, LLP, Birmingham; J. Timothy Francis of Francis Law, LLC, Birmingham; and- John Q. Somerville of Somerville, LLC, Birmingham, for amici curiae class counsel for certified class in Johnson v, Caremark Rx, LLC in support of the petitioner.
   STUART, Justice.

In June 2000, the Franklin Circuit Court (“the trial court”) entered a final judgment approving a settlement, agreement in. Taff v. Caremark, Inc., a class-action lawsuit against the corporate predecessor of the petitioner, Caremark Rx, LLC (“Care-mark). Approximately 16 years later, in July 2016, Taff class - counsel moved the trial court to enter an order requiring Caremark .to produce for them certain information -regarding the members of the Taff class so that Taff class counsel could notify those members of a proposed settlement in a separate class-action lawsuit pending against Caremark in the Jefferson Circuit Court, Johnson v. Caremark Rx, LLC, in which some of the members of the Taff class might be able to file claims. The trial- court ultimately granted Taff class counsel’s request and ordered Caremark to produce the requested information. Caremark now petitions this Court for a writ of mandamus directing the trial court to vacate that order. We grant the petition and issue the writ.

I.

On September 15, 1997, MedPartners, Inc., ■ a' physician-practice-management/pharmacy-bénefíts-management corporation that'was the predecessor in interest to Caremark, Inc., .and Caremark, hegan issuing to investors a type of convertible security known as threshold-appreciation-price ■ securities, or TAPS. TAPS holders were entitled to receive interest payments through the final settlement date, August 31, 2000, at which time they would receive a yield-enhancement payment and all their TAPS would be converted into shares of MedPartners common stock. The' funds received by MedPartners in exchange for the TAPS were to be held in escrow until the final settlement date, when they would be released to MedPartners; however, if certain “termination events” indicating that MedPartners had become financially distressed occurred before August 31, 2000, TAPS holders were entitled to an immediate payment.

In March 1999, a California state agency appointed a conservator over a MedPart-ners subsidiary operating in California; that conservator subsequently initiated bankruptcy proceedings on behalf of the subsidiary. In March 2000, certain TAPS holders initiated the Taff action in Franklin County to resolve the issue whether the bankruptcy of the California subsidiary constituted' a termination event" entitling them to an immediate payment. A settlement was quickly reached and, on June 9,' 2000, the trial court entered a final judgment approving the -terms of that settlement and further stating, as relates to-the case presently before this Court:

“The court hereby reserves and maintains continuing' jurisdiction over all matters relating to the settlement agreement or the consummation of the settlement, the validity of the settlement, the construction and enforcement of the settlement and any orders entered pursuant thereto; and the entry arid enforcement of this final judgment, including, in the event of reversal, vacation, or modification, jurisdiction to revoke this order and final judgment in its -entirety and to reinstate all claims dismissed or released; to discipline class members, parties or attorneys who do not comply with the terms of this final judgment; to provide an award of attorneys fees; to tax court costs; and to all other matters pertaining to the settlement agreement, its implementation, and enforcement.”

There is no evidence in the record indicating, nor has there been any allegation, that the parties in Taff did not abide by the terms of the June 2000 final judgment.

During this same period, MedPartners was embroiled in other litigation. In 1998, approximately 21 separate lawsuits were filed against MedPartners in various state and federal courts alleging that 'MedPart-ners had, in connection with a planned merger with Phycor Inc., made false and misleading statements to, both the public and the Securities and Exchange Commission concerning its financial condition and anticipated future performance. Some of those lawsuits asserted claims on behalf of TAPS holders based on their general status as holders of MedPartners-issued securities; however, none of those lawsuits was specifically related to TAPS or implicated the issues subsequently addressed in the Taff action. Those various cases were ultimately consolidated in the Jefferson Circuit Court and, in 1999, a global settlement was reached. This Court subsequently described the details of that settlement— along with a subsequent attempt to reopen the settlement based on allegations that MedPartners and its insurer had fraudulently suppressed information regarding MedPartners’ insurance coverage—in CVS Caremark Corp. v. Lauriello, 175 So.3d 596, 598-99 (Ala. 2014):

“Based on the alleged financial distress and limited insurance resources of Med-Partners, the 1998 litigation was concluded in 1999 by means of a negotiated ‘global settlement,’ pursuant to which the claims of all class members- were settled for $56 million—an amount that, according to the representations of Med-Partners, purportedly .exhausted its available insurance coverage. Purportedly based on representations of counsel that MedPartners lacked the financial means to pay any judgment in excess, of the negotiated settlement and that the settlement amount was thus the best potential recovery for' the class, the trial court, after a hearing, approved the settlement and entered a judgment in accordance therewith.
“Thereafter, however, MedPartners, now Caremark, allegedly disclosed, in unrelated litigation, that it had actually obtained—and thus had available during the 1998 litigation—an excess-insurance policy providing alleged ‘unlimited coverage’ with regard to its potential-damages exposure in the 1998 litigation—the existence of which it had purportedly concealed in negotiating the class settlement. As a result, in 2003, [a member of the class that was subject to the 1999 settlement] ... again sued .Caremark and the insurers' in the Jefferson Circuit Court, pursuant to a class-action complaint alleging misrepresentation and suppression—specifically, that Care-mark and the insurers'had misrepresented the amount of insurance coverage available’to settle the 1998 litigation and that they also had suppressed the existence of the purportedly unlimited excess policy ....”

(Footnotes omitted.) For the next several years, the involved parties—class members in the Jefferson County action, Care-mark, its insurer, and various attorneys who had at one time or were now representing class members—litigated various matters not directly related to the ultimate issue whether the settlement that ended the 1998 litigation had been procured by fraud. That litigation resulted in multiple appeals to this Court. See Lauriello; McArthur v. Yearout & Traylor, P.C., 34 So.3d 737 (Ala. 2008) (table); and Ex parte Caremark RX, Inc., 956 So.2d 1117 (Ala. 2006).

On August 15, 2012, the Jefferson Circuit Court certified the fraud claims asserted against MedPartners and its insurer based on the settlement of the 1998 litigation as being appropriate for class-action treatment, and it also defined the applicable class to include, among other holders of MedPartners securities, “[a]ll persons who ... purchased MedPartners [TAPS] in the September 15,1997, offering or thereafter through January 7, 1998.” This Court affirmed the August 15, 2012, order of the Jefferson Circuit Court in Lauriello, 175 So.3d at 614, and the Jefferson Circuit Court thereafter ordered that notice of the class action be provided to all potential class members. Over 99,000 notices were subsequently mailed out to parties previously identified as owners of record or beneficial owners of MedPartners securities, as well as to over 250 brokerages, custodial banks, and other financial institutions that may have held MedPart-ners securities on behalf of others. Notice was also published in the The Wall Street Journal. No objections were made claiming that those methods of notice were inadequate.

The Jefferson County action was ultimately -restyled as Johnson v. Caremark Rx, LLC, and, on June 1, 2016, the Jefferson Circuit Court gave preliminary approval to a $310 million settlement agreement. Pursuant to the terms of that settlement, class members had to affirmatively file a claim to receive any portion of the settlement fund. In giving preliminary approval to the settlement, the Jefferson Circuit Court also approved the parties’ plan for publishing, mailing, and distributing settlement notices and claim forms to potential claimants, ordered that any objections to the proposed settlement be filed by July 22, 2016, scheduled a final fairness hearing for August 8, 2016, and set a deadline of September 30,. 2016, for class members to file claim forms.

At some point after the Jefferson Circuit Court entered its June 1, 2016, order in Johnson, Taff class counsel decided to contact the members of the .Taff class to notify them that they might be able to receive funds from the settlement of the Johnson case if they filed a timely claim. However, Taff class counsel did not have a complete list identifying the members of the Taff class with contact information and details of their securities holdings; accordingly, on July 22, 2016, Taff class counsel moved the trial court, pursuant to Rule 60(b)(6), Ala. R. Civ. P., to reopen the Taff action—which appears to have seen no activity since it was settled in June 2000— and to order Caremark to provide Taff class counsel with information regarding the members of the Taff class. That motion stated, in relevant part:

“Plaintiff and class counsel, seek to assist class members in participating in a related class action case pending in Jefferson County, Alabama, Johnson v. Caremark Rx, LLC, CV-03-6630-PJB. As the class representative and class counsel, movants have an obligation to zealously represent the members of this certified and settled class. In order to do so, however, class counsel needs information concerning the members of the class and each of them purchases and sales of MedPartners-related securities, including, without limitation, purchases and sales of MedPartners common stock, purchases and sales of options of MedPartners common stock, and purchases and ' sales of MedPartners [TAPS]. Plaintiff and class counsel seek this relief because the proposed settlement reached [in the] Jefferson County action, if approved, will provide additional compensation to all of the class members in this class, all of whom were purchasers or sellers of MedPartners TAPS securities, the subject matter of this action. Members of the certified class in this case are also members of the preliminarily-certified class in the Jefferson County action. The proposed Jefferson County settlement is a claims-made settlement, and plaintiff and class counsel have an obligation to make sure that the class members in this case have a full and fair opportunity to participate in and receive benefits from that settlement.
“Plaintiff and class counsel were never provided with the list used to generate the class notice in this case. ■ MedPart-ners, either itself or through the claims administrator that MedPartners hired to administer the settlement, is in possession of this information as well as additional information about the class members.
“Accordingly, in order for plaintiff and class counsel to fulfill their duties to zealously represent the class, movants request the court to order MedPartners, either itself or through its claims administrator, to provide the following as to each class member: full name; mailing address; email address; home, work, and mobile telephone numbers; trades and holdings in MedPartners common stock, stock options, and TAPS.”

Caremark opposed Taff class counsel’s' request and filed a response, arguing, among other things, that Taff class counsel’s invocation of and reliance upon Rule 60(b)(6), Ala. R. Civ. P., was inappropriate and that .the trial court lacked jurisdiction to grant the requested relief. Caremark also alleged that it had conducted preliminary searches and did not even have most of the information being requested, supporting this assertion with the affidavit of a corporate officer indicating that only three documents relevant to the request of Taff class counsel had been identified, two of which had already been filed with the Jefferson Circuit Court in Johnson and were thus presumably publicly available. The third document was described as “a listing of names and addresses for TAPS holders that pre-dates the Master List contained in the court file in this case.”

The trial court thereafter conducted a hearing on Taff class counsel’s motion and requested proposed orders from the parties. In their .proposed order, Taff class counsel withdrew their request for relief pursuant to Rule 60(b)(6) and instead requested that the trial court order Care-mark to provide the requested information on the basis that the court had, in its June 2000 final judgment approving the Taff settlement, stated that it was “reserving] and maintain[ing] continuing jurisdiction over all matters relating to the settlement agreement.” On August 1, 2016, the trial court denied Taff class counsel’s request for Rule 60(b)(6) relief but nevertheless granted them the relief they ultimately sought, stating: ■ . ■ . ■

“Upon consideration of [Taff class counsel’s] motion and its premises, and having heard and' considered the written submissions and oral arguments from counsel for the parties, the court hereby denies the motion in its entirety. However, the filings in this case have brought to the court’s attention that the court file does not contain information identifying the class members in this case who are bound by the judgment. The court further notes that according to [Care-mark’s] filings [Caremark]' [has] information in [its] possession that could assist in that identification. Therefore, the court orders under.its retained jurisdiction that [Caremark] file with the court on or before August 31, 2016, alldocu-ments in [its] possession or [to which it has] reasonable access that identify] .class members who received notice, or wh'o- held TAPS, and the number of TAPS or other MedPartners securities held by them.”

The trial court also specifically stated that Caremark was required to produce the list of names and addresses described in the affidavit submitted in conjunction with Caremark’s initial motion opposing the Taff class counsel’s Rule 60(b)(6) motion.

On August 11, 2016, Caremark petitioned this Court for a writ of mandamus directing the trial court to vacate its August 1 order. Caremark thereafter moved this Court to stay the .trial court’s August 1 order and, on August 25, 2016, we granted the motion to stay and ordered Taff class counsel to file an answer responding to Caremark’s petition. Johnson class counsel subsequently moved this Court for permission to file an amicus curiae brief in support- of Caremark • arguing that Taff class counsel was attempting to interfere in their attorney-client relationship with the members of the Johnson class; that motion was ultimately granted as well.

II.

The standard of review applied to a petition seeking the issuance of a writ of mandamus is well settled:

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

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). In this case, Caremark argues' that we should grant its mandamus petition for two reasons. First, Caremark alleges that the trial court lacked jurisdiction to enter the August 1 order, and, second, Caremark alleges that the ordered relief is unreasonable and excessively burdensome, and that the trial court exceeded its discretion in ordering it. This Court has- previously indicated that both arguments are appropriate subjects for mandamus review. See, e.g., Ex parte Hampton, 189 So.3d 14, 16 (Ala. 2015) (“The narrow exceptions when mandamus review is available include when the petitioner challenges the subject-matter jurisdiction, of the trial court ...,.”), and Ex parte Loube Consulting Int’l, Inc., 45 So.3d 741, 748 (Ala. 2010) (recognizing that a -party may seek mandamus review of a trial court’s order requiring it to turn information over to the opposing party if the production of that information would be “unduly burdensome and costly”). We further note that Caremark’s mandamus petition is timely and that it complies with the requirements of Rule 21, Ala, R. App. P. Accordingly, the remaining issue before this Court is whether Caremark has a clear legal right to an order directing the trial , court to vacate its August 1 order.

III.

We first consider Caremark’s argument that the trial court lacked jurisdiction to enter the August 1 order requiring Caremark to produce certain information regarding the members, of the Taff class 16 years after the trial court entered its Anal judgment in the case. The June 2000 final judgment entered by the trial court approved the parties’ settlement and resolved all the issues and claims that had been raised in the Taff case. For all that appears, no postjudgment motions invoking Rule 59, Ala. R. Civ. P, were filed after the judgment was entered. If no Rule 59 motion is filed -after a judgment is entered, the trial court that entered the judgment generally loses jurisdiction to amend the judgment 30 days after the judgment is entered. Pierce v. American Gen. Fin., Inc., 991 So.2d-21-2, 215 (Ala. 2008). However, a trial court nevertheless continues to hold “residual jurisdiction” even after that 30-day period expires such that it can still take any steps that are necessary to enforce its judgment. See, e.g., George v. Sims, 888 So.2d 1224, 1227 (Ala. 2004) (explaining that “a trial court has ‘residual jurisdiction 'or authority to take certain action necessary to enforce or interpret a final judgment’ ”) (quoting Helms v. Helms’ Kennels, Inc., 646 So.2d 1343, 1347 (Ala. 1994)). The trial ■ court specifically noted in the June 2000 judgment that it would continue to retain this residual jurisdiction when it stated that “[t]he court hereby reserves and maintains continuing jurisdiction over all matters relating to the settlement agreement or the consummation of the settlement.” The question thus becomes whether it was .within the trial court’s residual jurisdiction to issue the August 1 order requiring Caremark to produce the requested information.. For the reasons that follow, we conclude that it was not.

Athough it is true that the trial court’s statement of retained jurisdiction might be1 read in a manner that would allow the trial court to require Caremark to now disclose the information sought by Taff class counsel—inasmuch as the identities of the Taff class members is in some way “related” to the settlement agreement—the trial court’s residual jurisdiction cannot be extended that far. A court cannot broaden by mere declaration the residual jurisdiction it necessarily holds to allow it to interpret or enforce its judgments. In Schramm v. Spottswood, 109 So.3d 154 (Ala. 2012); this Court confronted a similar issue when the cross-appellants argued that the trial court, could revisit a judgment entered-in a boundary-line dispute finalized almost five years earlier. Specifically, they argued that their approximately five-year-late motion “was nevertheless timely and appropriate because the trial court stated in [its final judgment], that it.would retain jurisdiction oyer the case to determine any ‘subsequent issues’ that ¡ arose regarding the boundary lines.” 109 So.3d at 162. Notwithstanding the court’s broad claim of residual,jurisdiction, we.rejected the cross-appellant’s argument, recognizing that, the. final judgment previously entered was, in fact, final, and that,the trial court had no jurisdiction to revisit the judgment, regardless of any claim to retained jurisdiction over the issue the cross-appellants sought to raise'. Id.

The Missouri Court of Appeals’ analysis of this issue is also instructive. In State ex rel. Abdullah v. Roldan, 207 S.W.3d 642 (Mo. Ct. App. 2006), that court considered an argument that the trial court that had presided over the settlement of a class-action lawsuit had exclusive jurisdiction to decide a subsequent dispute between class counsel and other attorneys regarding the payment of a referral fee:

“Class Counsel essentially argues that Paragraph 16 of the [October 4, 2005] Judgment allows the [trial court] to retain jurisdiction over this attorney fee dispute. Paragraph 16, in relevant part provides:
“ ‘Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over ... (b) further proceedings, if necessary, on applications for attorneys’ fees, expenses, and costs in connection with the Litigation and the Settlement;.... Among other things, this Court retains continuing jurisdiction over the Litigation to enforce Defendants’ obligations under the Agreement ... and [to] pay Plaintiffs’ Counsel and Plaintiffs’ Class Counsel any award of attorneys’ fees and reimbursement of expenses made by the Court .... ’
“Class Counsel cites federal case law in support of this contention. However, it is important to note that ‘Missouri Rule 75.01 has no exact counterpart in the Federal Rules.’ Pirtle [v. Cook], 956 S.W.2d [285,] 242 [ (Mo. 1997) ].
“As previously discussed, under Rule 75.01[, Missouri Supreme Court Rules,] a ‘trial court retains jurisdiction for thirty days following the entry of its judgment to take corrective action.’ Lacher v. Lacher, 785 S,W.2d 78, 80 (Mo. 1990). In the absence of any authorized trial motions, ‘the trial court loses jurisdiction at. the expiration of thirty days.’ Id. As the Missouri Supreme Court has also noted, ‘[w]e know of no lawful method which would authorize the trial court to “hold in abeyance” the judgment which had become final.’ Id. (quoting Camden v. St. Louis Pub. Serv. Co., 239 Mo.App. 1199, 206 S.W.2d 699, 703 (1947)). Class Counsel also does not cite any Missouri precedent supporting the [trial court’s] attempt to retain jurisdiction past the thirty days mandated in Rule 75.01.
“In accord with the Missouri Supreme Court’s holding in Lacher, ‘[t]he trial court’s attempt to retain jurisdiction over this final decree is contrary to Rule 75.01 and is without effect.’ Id. at 81. ‘Where the trial court includes language in a judgment that attempts to improperly expand its jurisdiction, the language of the trial court purporting to allow the court to retain jurisdiction is “without effect” and, as a practical matter, is simply treated as excess language.’ Holifield v. Holifield, 109 S.W.3d 711, 716 (Mo. App. W.D. 2003) (citing T.L.I. v. D.A.I., 810 S.W.2d 551, 554 (Mo. App. E.D. 1991)). Regardless of what the Judgment says in Paragraph 16, the [trial court] lost jurisdiction over the Judgment on November 3, 2005. The language in the Judgment attempting to retain jurisdiction is clearly able to be stricken without affecting the remainder of the Judgment. See T.L.I., 810 S.W.2d at 554.
“Class Counsel also argues that since under Missouri law ‘courts have inherent power to enforce their own judgments,’ the [trial court] had the power to grant the Motion to Enforce. Class Counsel is correct that ‘“[c]ourts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when they are called upon to do so.” ’ Lake Thunderbird Prop. Owners Ass’n, Inc. v. Lake Thunderbird, Inc., 680 S.W.2d 761, 763 (Mo. App. E.D. 1984) (quoting 46 Am. Jur.2d Judgments § 898 (1969)). It is also true that ‘Rule 75.01 serves merely as a bar to the court’s right to alter, modify, or change its judgment, but it does not prevent the court from enforcing its judgment as originally entered.’ Multidata Sys. Int’l Corp. v. Zhu, 107 S.W.3d 334, 339 (Mo. App. E.D. 2003).
“ ‘However, this power has significant limitations.’ SD Invs., Inc, v. Michael-Paul, L.L.C., 157 S.W.3d 782, 786 (Mo. App. W.D. 2005). ‘The trial court’s inherent enforcement power applies to the judgment as originally rendered; the trial court’s power to modify a judgment ceases when the judgment becomes final.’ Mo. Hosp. Ass’n v. Air Conservation Comm’n of State of Mo., 900 S.W.2d 263, 267 (Mo. App. W.D. 1995).
“Just because a pleading is titled as a ‘Motion to Enforce’ does not mean that it is in fact a motion to enforce. Based on the record before ús, it appears that the Defendants in the underlying class action have either already paid the $6 million as required by the Judgment or are in the process of fulfilling the order. Therefore, there is no need for the Judgment as originally rendered to be enforced.
“As the full title of the Motion to Enforce suggests, what this ‘Motion to Enforce’ really is, is a motion to declare and interpret rights and obligations couched in terms of a motion to enforce. In fact, what the Class Counsel asks for in the Motion to Enforce cannot be read to be a request for the Judgment to be enforced. Instead, what Class Counsel is asking for is that the [trial court] modify his original Judgment in order to clarify who the award of attorneys’ fees should be paid to and to make factual and legal determinations that were presented to the [trial court] for the first time. However, as discussed above, the [trial court’s] jurisdiction to modify or clarify the Judgment expired on November 3, 2005. The [trial court] only has the power to enforce the judgment as originally entered. Since based on the record before us there is no need for the Judgment to be enforced against the defendants as originally entered, the [trial court] does not have jurisdiction over this matter.”

207 S.W.3d at 646-47(footnote omitted).

As was the case in Roldan, there is no real dispute here that is directly related to the final judgment entered by the trial court. Indeed, the terms of the settlement the trial court approved in the June 2000 final judgment were fulfilled by the parties, and there is no question regarding whether any specific individual was a class member covered by the settlement. Neither the terms of the June 2000 final judgment, nor the terms of the settlement agreement itself, nor the requirements of Rule 23, Ala. R. Civ. P., which governs class-action lawsuits in Alabama, nor any statute that has been identified by the parties required Caremark or its predecessors to file with the trial court—during the pendency of the class action, upon its settlement, or at any time thereafter—the information now being requested. Taff class counsel could have sought to make MedPartners disclose that information as a condition of settlement; however, they did not do so. Accordingly, there is no basis for the trial court to impose that requirement upon Caremark now and it, in fact, lacks the jurisdiction to do so. The trial court’s August 1 order is not merely interpreting or enforcing its June 2000 final judgment; rather, it essentially seeks to modify or amend that final judgment to impose new obligations upon Caremark, even though the trial court’s jurisdiction to modify or amend the judgment expired 30 days after the June 2000 judgment was entered. Accordingly, the August 1 order is due to be vacated. >

IV.

Caremark, petitions this Court for a writ of mandamus, directing the trial court to vacate its August 1 order requiring Care-mark to disclose certain information regarding the Taff class members to Taff class counsel 16 years after a final judgment was entered in Taff. We grant the petition and issue the writ. The jurisdiction retained by the trial court after, it entered its final judgment in Taff is limited to interpreting or enforcing that final judgment; the trial court could not extend its jurisdiction over any matter somehow related to the June 2000 final judgment in perpetuity by simply declaring it so. See Holifield v. Holifield, 109 S.W.3d 711, 716 (Mo. Ct. App. 2003) (“Where the trial court includes language in a judgment that attempts to improperly expand its jurisdiction, the language of the trial court purporting to allow the court to retain jurisdiction is ‘without effect’ and, as a practical matter, is simply treated as excess language.!’). The August 1 order was effectively a modification of the June 2000 final judgment; however, the trial court lost jurisdiction to amend or modify the June 2000 judgment 30 days after it was entered. Accordingly, the trial-court is hereby directed to vacate the August 1 order, which it was without jurisdiction to enter.

PETITION GRANTED; WRIT ISSUED.

Bolin, 'Shaw, Main, Wise, and Bryan, JJ., concur.

Parker, J., concurs in the result.

      .. While Ex parte Loube Consulting and similar cases in which this Court has considered arguments that the production of documents would be overly burdensome and costly typically involve discovery disputes, see, e.g., Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222 (Ala. 2009), and Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134 (Ala. 2003), their reasoning is equally applicable in the instant case, where the trial court has ordered the petitioner to find and disclose information 16 years after a final judgment was entered.

      . Of course, Rule 60(b), Ala. R. Civ, P„ provides a mechanism by which a trial court can provide- relief beyond that 30-day period in certain extraordinary circumstances not present in this case. See Simmons v. Walker, 194 So.3d 243, 246 (Ala. Civ. App. 2015) ("[R]elief under Rule 60(b) is an extreme remedy that is to be granted only in extraordinary circumstances.”).

      . Inasmuch as we have held that Caremark is entitled to the relief it seeks on the basis of its first argument regarding the trial court’s lack of jurisdiction to enter the August 1 order, it is unnecessary to consider Caremark’s other argument that the- relief granted Taff class counsel in that order is unreasonable and places an excessive burden upon Caremark. It is likewise unnecessary to consider the arguments made by Johnson class counsel in their amicus curiae brief.


author: MAIN, Justice.

text:
    Kimberly J. BOND v. James D. McLAUGHLIN
    1151215
    Supreme Court of Alabama.
    February 24, 2017

      Robert G. Poole and Jonathan K. Corley of Whittelsey, Whittelsey, Poole & Corley, P.C., Opelika, for appellant.
    Ronald G. Davenport and J. Evans. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   MAIN, Justice.

On May 28, 2008, Kimberly J. Bond sued her former attorney, James D. McLaughlin, alleging legal malpractice under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975. The Lee Circuit Court (“the trial court”) entered a summary judgment in favor of McLaughlin. Bond appeals.

Facts and Procedural History

In February 2006, Bond hired McLaughlin to, provide, legal services involving the estate of her husband, Kenneth D. Pylant II, who was killed in a motorcycle accident on September 5, 2005. According to the complaint in .the present case, McLaughlin failed to properly contest a copy of Pylant’s will that was admitted to probate on November 29, 2005, and, as a proximate result of McLaughlin’s breach of duty, Bond was injured and suffered damage.

In Bond v. Pylant, 3 So.3d 852 (Ala. 2008), this Court addressed the will contest filed by McLaughlin on Bond’s behalf. In that case, this Court held that Bond’s will contest filed in the probate court after the will had been admitted to probate was a nullity and could not be transferred to the circuit court and that,her will contest filed in the circuit court was untimely. This Court set forth the facts and procedural history of the case as follows:

“Kenneth D. Pylant II died on September 5, 2005. When he died, Kenneth was married to Kimberly Bond; he had four children from a previous marriage, two of whom were minors. Subsequently, James Sprayberry, as executor of Kenneth’s estate, filed a petition in the Lee County Probate Court seeking to admit to probate a copy of Kenneth’s will, which Sprayberry alleged had been lost or destroyed. Apparently, Sprayber-ry, who is an attorney, had a copy of an unexecuted will he had prepared on Kenneth’s behalf, which he asserted was a copy of the will Kenneth executed.... On November 29, 2005, the probate court held a hearing and that same day entered an order admitting the copy of the lost will to probate.
“On April 26, 2006, Bond filed in the probate court a ‘Complaint contesting the Will.’ That same day, Bond also filed in the probate court a motion to transfer the will contest to the circuit court pursuant to § 43-8-198, Ala. Code 1975. On May 2, 2006, the probate court purported to transfer the will contest to the circuit court by having someone take the file to the circuit court clerk’s office. A member of the probate court’s staff informed Bond’s counsel that there was no order of transfer. On May 30, 2006, the probate court entered an order again purporting to transfer the will contest to the circuit court.
“On June 9, 2006, Bond filed a complaint in the circuit court contesting the will. On June 16, 2006, Sprayberry, as executor, along with Kenneth’s two adult children, filed an answer and moved to dismiss the complaint filed in the circuit court on the ground that the circuit court lacked subject-matter jurisdiction over the matter. On November 30, 2006, the circuit court entered an order dismissing Bond’s complaint for lack of subject-matter jurisdiction because Bond failed to file her will contest in the circuit court within six months after the will-was admitted to probate as required by § 43-8-199, Ala. Code 1975. Bond timely appealed.”

3 So.3d at 853-54 (footnotes omitted). This Court affirmed the judgment of the circuit court dismissing Bond’s will contest for lack of subject-matter jurisdiction. 3 So.3d at 855.

After the dismissal of Bond’s will contest was affirmed on appeal, pursuant to a petition filed by the executor, the administration of Pylant’s estate was removed from the probate court- to the circuit court in January 2009. Following a bench trial at which it received evidence ore tenus, the circuit court, on October 27, 2009, entered a judgment that, among other things, determined who was entitled to certain disputed land . and concluded that Pylant’s estate was not responsible for paying certain debts Pylant and Bond owed at his death. The circuit court’s order stated, among several other things, that “the Court finds that the will at issue in this case is also valid.” One of the three children Pylant and Bond had together appealed the circuit court’s judgment insofar as it determined who was entitled to the disputed land. Bond appealed the circuit court’s judgment insofar as it determined who was entitled to the disputed land and whether the estate was responsible for debts Pylant and she owed at his death. Pylant’s former wife, Bethany. Pylant, cross-appealed insofar as the circuit court’s judgment determined who was entitled to the disputed land. After consolidating the appeals and the cross-appeal, the Court of Civil Appeals stated:

“CW]e reverse the judgment of the circuit court insofar as it concluded that the separation agreement did not divide the 71.73-acre parcel and the 15-acre parcel between Pylant and Bethany before Pylant’s death; we reverse the judgment insofar as it concluded that Bethany was entitled to an undivided one-half interest in the 71-73-acre'parcel and the 15-acre parcel- and that [the four children Pylant,and Bethany had together] were each entitled to an undivided one-eighth interest in the 71.73-acre parcel and the 15-acre parcel; we affirm the judgment of the circuit court in all other respects; and we remand the action to the circuit court for further proceedings consistent with this opinion.”

Bond v. Estate of Pylant, 63 So.3d 638, 647 (Ala. Civ. App. 2010). The circuit court’s statement that the “will at issue,” i.e., the copy of the last will, is valid was not addressed on appeal in the Court of Civil Appeals,

, In the present legal-malpractice action, McLaughlin conceded that he failed to properly file the will contest and, thus, that he breached the applicable standard of care. However, McLaughlin moved for a summary judgment,' arguing that Bond could not prove that, but for McLaughlin’s negligence, she would have received a more favorable result in the underlying case. Specifically, McLaughlin argued that Bond failed1 to show that her will contest would have been successful. Moreover, McLaughlin argued that Bond’s claim that the will -was invalid is barred by the doctrine of res judicata because, 'he says, in a prior judgment, the circuit court stated that “the will at issue in this case is also valid.” Bond filed a response opposing McLaughlin’s motion for a summary judgment and arguing that there was substantial evidence creating a genuine issue of material fact concerning whether a properly filed will contest would have been successful.- Specifically, Bond argued that there was substantial evidence indicating that Pylant had revoked the will. That evidence consisted of Bond’s testimony that Pylant told her he had destroyed the will and intended to make a new will and Bethany’s testimony that Pylant also told her he had destroyed the. will. Bond also contended that her claim was not barred by the doctrine of res judicata.

It is undisputed that James Sprayberry, an attorney and the executor of Pylant’s estate, prepared a will for Pylant and that Pylant executed that will on March 19, 2001. According to Sprayberry’s deposition testimony, he gave Pylant the executed will and told him to put it in his safe-deposit box or some other safe place. Sprayberry . also told Pylant not to attempt to amend or revoke the will without contacting him or another attorney. Sprayber-ry kept a copy of the will for his records. Between the execution of the will in 2001 and Pylant’s death in 2005, Pylant and Sprayberry saw and spoke to each other a few times a month at the post office. Py-lant never mentioned to Sprayberry that the will had been destroyed or revoked.

After Pylant’s death, Sprayberry' and Bond together searched Pylant’s safe-deposit box for the will, but they did not find it. Bond also- searched Pylant’s office for the will, but she did not find it.

In the probate court’s order admitting the lost will to probate, the court stated that “testimony was taken ore tenus” and that “[t]here was no evidence, according to Dr. Bond, that the original will was destroyed, cancelled or revoked.” In her deposition in the present case, when asked about that statement in the probate court’s order, Bond testified: “[Pylant] told me he destroyed his will, but I don’t have any physical evidence of that ,.. other than he told me that. I don’t have the will shredded. It was not shredded before me.” Bond also testified that she, was not represented by counsel, at the probate .hearing. Bond maintained throughout her deposition testimony that. Pylant told her that he had destroyed the will and that he intended to make a new will. In the 2009 proceedings in the circuit court, Bethany testified that Pylant also told her that he destroyed the will.

On August 25, 2016, the trial court entered a summary judgment in favor of McLaughlin. The court held that Bond failed to prove that, but for McLaughlin’s negligence, she would have received a better result in the underlying proceeding and that Bond’s claim was barred by the doctrine of res judicata.

Standard of Review

“We review a summary judgment de novo. Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala. 2002) (citing American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002)).

“ ‘ ‘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 reaspn-ably 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.” ’
844 So.2d at 545 (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000)) (citations omitted).
“Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is. entitled to judgment as a matter of law. Rule 56(c)(3), .Ala. R. Civ. P.”

Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So.2d 1135, 1139 (Ala. 2006).

Discussion

On appeal, Bond contends'that the trial court erred in entering a summary judgment in- favor of McLaughlin on her legal-malpractice claim. Specifically, Bond argues that she presented substantial evidence creating a genuine issue of material fact concerning whether thé will contest in the underlying action, had it been properly filed, would have been successful and that her claim is not barred by the doctrine of res judicata.

L

First, Bond argues that the trial court erred in, entering a summary judgment in favor of McLaughlin on her legal-malpractice claim because McLaughlin conceded that he breached the applicable standard of care in the underlying will contest and because, Bond says, she presented substantial evidence that her will contest would have been successful.

“A plaintiff in a legal malpractice action must prove the same basic elements as in a negligence action: duty, breach, proximate cause, and damage[].” Pickard v. Turner, 592 So.2d 1016, 1019 (Ala. 1992).

“To prevail'in a legal-malpractice action, the plaintiff must prove that, but for' the attorney’s negligence, the legal matter concerning which the attorney is alleged to have been negligent would have, been resolved more favorably to the plaintiff. Pickard v. Turner, 592 So.2d 1016, 1019 (Ala. 1992). To meet this burden, the plaintiff must prove (1) that, in the absence , of the alleged malpractice, the plaintiff would have been entitled to a more favorable result in the legal matter concerning which the attorney is alleged to have' been negligent, and (2) that the attorney’s negligence in fact caused the outcome of the legal matter to be less favorable to the plaintiff than the outcome would have been in the absence of the alleged malpractice. Pickard, 592 So.2d at 1020 (‘ “Generally, actionable [legal] malpractice cannot be established in the absence of a showing that the attorney’s wrongful conduct has deprived the client of something to which he would otherwise have been entitled.” [7A C.J.S. Attorney and Client § 255 at 462 (1980).] A lawyer cannot be expected to achieve impossible results for a client.’); Hall v. Thomas, 456 So.2d 67, 68 (Ala. 1984) (‘A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different.’ (citing Mylar v. Wilkinson, 435 So.2d 1237 (Ala. 1983))).”

Bonner v. Lyons, Pipes & Cook, P.C., 26 So.3d 1115, 1120 (Ala. 2009).

In the present case, it is undisputed that McLaughlin breached the applicable standard of care in the underlying will contest. Thus, we must decide only whether Bond presented substantial evidence that, but for McLaughlin’s breach, the will contest would have- been resolved more favorably to her. That issue hinges on whether Bond presented substantial evidence that Pylant had revoked the will admitted to probate and, thus, that a copy of the revoked will should not have been probated as a lost will.

Section 43-8-136(b), Ala. Code 1975, provides, in relevant part: “A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction.”

In Stiles v. Brown, 380 So.2d 792 (Ala. 1980), this Court stated:

“The fact that the will left in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator animo revocandi, or with intent to revoke. The presumption referred to is not an irrebuttable conclusion of law; it is a mere inference of fact. Our cases clearly hold that this presumption of revocation or inference of fact is rebuttable and the burden of rebutting the presumption is on the proponent of the will.”

380 So.2d at 795 (internal citations omitted).

In the present case, assuming that, through .Sprayberry’s testimony and the statement in the probate court’s order admitting the lost will to probate that Bond had offered no evidence indicating that the will had been revoked, McLaughlin presented evidence sufficient to overcome the rebuttable presumption that the lost will was revoked, the burden then shifted to Bond to present substantial evidence that the will had been revoked. Bond presented her testimony and Bethany’s testimony that Pylant told them, separately, that he had destroyed the will. These statements are admissible under an exception to the hearsay rule. See Rulé 803(3), Ala. R. Evid. (providing that the following is not excluded by the hearsay rule: “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”). Pylant’s alleged statements to Bond and Bethany constitute “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer” that Pylant had revoked the ■will. Thus, Bond has presented substantial evidence creating a genuine issue of material fact tó be resolved by the finder of fact.

We note that McLaughlin and the trial court in its summary-judgment order place-great emphasis on the fact that Bond must ultimately prove that the result of the underlying proceeding—the mil contest— “would” have been different, rather than “may” have been different. At' the summary-judgment stage in the present case, it is true that Bond was required to present “substantial evidence” that the result of the underlying proceeding “would” hávé been different, but she did not have to present undisputed evidence or definitively prove that the result of the underlying proceeding would have been different. At this stage, Bond was required to present evidence from which' the finder of fact could infer that the result of the underlying proceeding would have been different. We hold that Bond has presented such evidence.

II.

Lastly, Bond contends that the trial court erred in determining that her claim was barred by the doctrine of res judicata.

This Court has stated: “Both collateral estoppel and res judicata are affirmative defenses; thus, the party raising the defense has the burden of proving each element.” Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 516 (Ala. 2002).

“[R]es judicata and collateral estoppel are two closely related, judicially created doctrines that preclude the relitigation of matters that have been previously adjudicated or, in the case of res judica-ta, that could have been adjudicated in a prior action.
“ ‘The doctrine of res judicata, while actually embodying two basic ■ concepts, usually refers to what commentators label “claim preclusion,” while collatéral estoppel ... refers to “issue preclusion,” which is a subset of the broader res judicata doctrine.’
“Little v. Pizza Wagon, Inc., 432 So.2d 1269, 1272 (Ala. 1983) (Jones, J., concurring specially). See also McNeely v. Spry Funeral Home of Athens, Inc., 724 So.2d 534, 537 n.1 (Ala. Civ. App. 1998). In Hughes v. Martin, 533 So.2d 188 (Ala. 1988), this Court explained the rationale behind the doctrine of res judicata: ■
“ ‘Res judicata is a broad, judicially developed doctrine, ‘which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies.’
533 So.2d at 190. The elements of res judicata are
“ ‘(1) a prior judgment on the merits, (2) rendered by a court of competent 'jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.’
“Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998). ‘If those four elements are present, then any claim that was,' or that could have been, adjudicated in the prior action is barred from further litigation.’ 723 So.2d at 636. Res judicata, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.
“The corollary to the above-stated rationale is that the doctrine of res judica-ta will not be applied to bar a claim that • could not have been brought in a prior action. Old Republic [Ins. Co. v. Lanier], 790 So.2d [922] at 928 [ (Ala.2000) ], See also United States v. Maxwell, 189 F.Supp.2d 395, 406 (E.D. Va. 2002); Restatement (Second) of Judgments, § 26(l)(c) (1982), Restatement (Second) of Judgments, §. 51(l)(a). ‘In order for a judgment between the same parties to be res. judicata,-it must, among other things, ... involve a question that could .-have been litigated in the former cause or proceeding.’ Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93 (1910). See also Dekle v. Vann, 284 Ala. 142, 223 So.2d 30 (1969), in which this Court held that a prior judgment in equity ordering the defendants to open a wall adjacent to the plaintiffs land was not res judica-ta in. a subsequent action seeking damages for trespass, because the equity court lacked jurisdiction to award punitive damages.”

Saad, 851 So.2d at 516-17 (footnotes omitted),

In the present ease, McLaughlin has the burden of proving the .affirmative defense of res judicata. His argument rests on the following ■ statement found in the circuit court’s 2009 order: “Moreover, the court finds that the will at issue in this case is valid.” The first paragraph, of that order, which was quoted by the Court of Civil Appeals in Bond v. Estate of Pylant, states:

“ ‘[T]he Court finds that a valid and binding order was entered on or about January 26, 1994 divorcing [Pylant] and [Bethany], Additionally, no common-law marriage was established after that date between [Pylant] and [Bethany], Moreover, the Court finds that the will at issue in this case is also valid.’ ”

63 So.3d at 642.

It is unclear from the circuit court’s order exactly why it stated that the will was valid. It appears that, among several issues in that case, the only contention concerning the validity. of the will was made by Bethany. Bethany had argued that she and Pylant had established a common-law marriage after their December 26, 1994, divorce and that they were still legally married at the time of his death. Thus, she alleged that the will was , invalid so that, if .the circuit court found that she and Pylant were,still married at the time of his death, she could inherit as the surviving spouse under the laws of intestate succession. However, immediately ¿preceding its statement that the will is valid, the circuit court explicitly found that Bethany and Pylant were not married,at. the time of his death. Therefore, because the. circuit court found that Bethany and Pylant were not married at the time of his death, the court’s statement that, “the will at issue in this case is valid” was . unnecessary to resolve any argument that-was before it and was therefore dictum. .

Furthermore, as this Court recognized in Bond v. Pylant, “ ‘[a] circuit court’s jurisdiction over a will contest is statutory and limited.’” 3 So.3d at 855 (quoting Forrester v. Putman, 409 So.2d 773, 775 (Ala. 1981)).

“ ‘In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala. Code 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199; Ala. Code 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the- county in which the will was probated.’ ”

Bond v. Pylant, 3 So.3d at 854 (quoting Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990)).

Bond did not contest the will before probate, and, because of McLaughlin’s negligence, she did ' not properly contest the will within six months after probate by filing a complaint in the circuit court. Likewise, there is no indication that Bethany contested the will under § 43-8-19.0, Ala. Code 1975, before probate or under § 43-8-199, Ala. Code 1975, after probate. Therefore, no will contest- was before the circuit court when it administered the estate and issued its 2009 order. In fact, the circuit court would not have had jurisdiction to hear a contest to Pylant’s will at that time. As stated in Saad, supra, “[t]he-doctrine of íes judicata will not be applied to bar a claim that could not have been brought in a prior action.” 851 So.2d at 517. In the present situation, a will contest was not before the circuit court during the administration of Pylant’s estate in 2009 and could not have been raised in the circuit court during those proceedings. Therefore, the same, cause of action was not presented in that prior case and in the present case; thus, that prior action is not res judicata in the present action.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Bolin, Parker, Murdobk, Shaw, Wise, and Bryan, JJ., concur.


author: MOORE, Judge.

text:
    Wadena Pyatt SIMS v. Randy Lee SIMS
    2150487
    Court of Civil Appeals of Alabama.
    September 23, 2016
    Rehearing Denied December 9, 2016
    Certiorari Denied February 20, 2017
    Alabama Supreme Court 1160242

      Wadena Pyatt Sims, pro se.
    Randy Lee Sims, pro se.
   MOORE, Judge.

This appeal arises from a judgment entered by the Jefferson Circuit Court (“the trial court”) divorcing Wadena Pyatt Sims (“the wife”) and Randy Lee Sims (“the husband”).

Background

The record shows that the husband filed' a complaint for a divorce on September 25, 2015. On September 30,2015, the wife filed a letter with the trial court requesting time to retain counsel to respond to the complaint. On October 13, 2015, the wife, acting pro se, filed an answer to the complaint, which she later amended on November 10, 2015, by, among other things, adding a counterclaim seeking a divorce or an annulment. Thereafter, the trial court set several motions filed by the wife for a hearing on November 18, 2015. On November 10,2015, the wife moved the trial court to continue the November 18, 2015, hearing based on her alleged medical issues. On November 12, 2015, the husband filed a motion to set the case for trial. By an order entered on November 13, 2015, the trial court granted the wife’s motion to continue the hearing on her motions and the husband’s motion by setting the trial and the hearing on the wife’s pending motions for December 14, 2015. On December 9, 2015, the wife filed a motion to disqualify the husband’s attorney, to compel discovery, to obtain pendente lite attorney’s fees, and to continue the trial date. The trial court ordered that those motions would be heard on December 14, 2015, the date scheduled for trial.

On December 14, 2015, the wife did not appear at the scheduled trial. The husband appeared along with his counsel. The trial court subsequently entered a final judgment divorcing the parties and dividing their property. The trial court indicated that it was entering the divorce judgment based, in part, on ore tenus testimony. The record does not contain a transcript of the ore tenus testimony that was presented. On December 16, 2015, the trial court denied all pending motions not otherwise adjudicated by the divorce judgment. The wife filed a timely postjudgment motion, which the trial court denied on February 11,2016. The wife timely appealed.

Discussion

The wife first argues that the trial court lacked jurisdiction to enter the divorce judgment. The wife premises this argument on the alleged lack of proper service upon her, which was originally attempted, fraudulently the wife contends, via publication. In her letter to the trial court dated September 30, 2015, the wife indicated that she had given the husband her service address, objected to service by publication, and moved the court to dismiss the complaint. However, on October 13, 2015, the wife filed an answer, which she later amended on November 10, 2015, in which she omitted any objection to lack of service. The wife also filed discovery and numerous motions in the trial court. “ ‘[I]f a defendant intends to rely on want of jurisdiction over his [or her] person, he [or she] must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general.’” R.M. v. Elmore Cty. Dep’t of Human Res., 75 So.3d 1195, 1200 (Ala.Civ.App.2011) (quoting Persons v. Summers, 274 Ala. 673, 681, 151 So.2d 210, 215 (1963)). A general appearance acts as a waiver of any defense of lack of personal jurisdiction, including any defense of improper service. See Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45 (Ala.2003). Thus, the wife waived any objection to lack o'f proper service, by publication or otherwise, and cannot now claim on appeal that the divorce judgment is void based on lack of personal jurisdiction. See C.M. v. Madison Cty. Dep’t of Human Res., 133 So.3d 890 (Ala.Civ.App.2013). Accordingly, any error the trial court may have committed in authorizing service by publication would be considered harmless error. See Rule 45, Ala. R. App. P.

The wife next argues that the divorce judgment is void because it was entered in a manner inconsistent with due process. See Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala. 2003). The wife initially complains that the husband’s attorney did not inform her of the trial date, but, if that assertion is true, that would not amount to a violation of due process. See Ex parte Weeks, 611 So.2d 259, 262 (Ala.Civ.App.1992). The wife also asserts that the clerk of the trial court assumed the responsibility to notify her of the trial date and that the clerk negligently failed to do so, which, if true, would constitute a violation of due process. Id. However, we do not address that contention because the record shows that on December 9, 2015, the wife filed a motion to continue the December 14, 2015, trial date, evidencing that she had actual knowledge of the date on which the trial had been scheduled. In light óf her admission that she knew of the trial date at least five days' beforehand, the wife cánnot validly assert lack of notice of the trial date or that the divorce judgment was entered without giving her notice and an opportunity to be heard.

The wife next argues that the trial court erred in entering a default judgment against her. See note 1, supra. We note, however, that the wife does not cite any authority on this issue; particularly, the wife has failed to include a discussion of the factors discussed in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600, 604 (Ala.1988), which sets out the procedure a trial court should follow when deciding whether to set aside a default judgment. It is well settled that an appellate court

“will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Further, it is well settled that ‘ “[w]here an appellant fails to cite any authority for ah argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.” ’ Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565- So.2d 212, 216 (Ala.1990)).”

Allsopp v. Bolding, 86 So.3d 952, 960 (Ala. 2011). Accordingly, we decline to consider this issue.

The wife also argues that the trial court erred in denying her motion to set aside the divorce judgment based on the alleged defect in service and lack of notice of the trial date. We have already decided that the judgment was not void based on lack of service or lack of notice. Thus, we conclude that the trial court did not exceed its discretion in denying the wife’s postjudgment motion based on those same grounds. See Bell v. Greer, 853 So.2d 1015, 1018-19 (Ala.Civ.App.2003) (“The grant or denial of a ’ postjudgment motion rests within the sound discretion of the trial court.-... [T]he trial court’s ruling ‘will not be reversed on appeal' unless a legal right was abused and. the-record plainly [and palpably] demonstrates error.’” (quoting Dare Prods., Inc. v. Alabama, 574 So.2d 847, 850 (Ala.Civ.App.1990))). Lastly, we do not address the wife’s contention that the trial court exceeded its discretion in denying the wife’s motion to vacate, the divorce judgment based on newly- discovered evidence because the wife has not supported that contention with citation to any legal authority. See Rule 28, Ala. R. App. P.

- For-the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, • and Donaldson, JJ., concur.

      . As discussed later in this opinion, because the wife had notice of the trial date, submitted to the trial court’s jurisdiction, and failed to appear and defend at the trial, the trial court's judgment is properly construed as a default judgment. See Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869, 871 n. 2 (Ala. 2002); and Austin v. Austin, 159 So.3d 753, 756 n. 2 (Ala.Civ.App.2013).

      . We note that lack of proper service affects the jurisdiction of the trial court over the person, and not the court’s subject-matter jurisdiction, the latter of which may not be waived. See L.V. v. I.H., 123 So.3d 954, 958 (Ala.Civ.App.2013).

      ,. The wife raises other arguments, in her appellate brief relating to the trial court's interlocutory rulings on discovery1 and other motions that she filed. We likewise do not address those arguments because they are not supported by citation to any legal authority.

      . In addressing the issues raised in this appeal, this court has considered only the evidence presented in the certified record ‘ on appeal.