author: DONALDSON, Judge.

text:
    Barry G. CURTIS v. Mia Simone CURTIS.
    2141005.
    Court of Civil Appeals of Alabama.
    May 27, 2016.
    Paige P. Yarbrough and Kelli Hogue Mauro, Birmingham, for appellant.
    Charles H. Dunn of Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, for ap-pellee.
   DONALDSON, Judge.

Barry G. Curtis (“the husband”) appeals from a judgment of the Talladega Circuit Court (“the trial court”) entered in an action in which he is seeking a divorce from Mia Simone Curtis (“the wife”). Because we determine that the husband has appealed from a nonfinal judgment and, therefore, that this court has no jurisdiction, we dismiss the appeal.

A brief account of the pertinent facts follows. On May 9, 2011, the husband filed a complaint for a divorce in the trial court. On June 2, 2011, the wife filed an answer and a counterclaim for a divorce. On June 30, 2011, the trial court entered a pendente lite order granting temporary custody of the parties’ children to the wife and directing the husband to pay certain expenses. After a lengthy and apparently contentious discovery process, the trial court held nine evidentiary hearings between October 2013 and May 2014. The wife filed a motion seeking to hold the husband in contempt on October 31, 2014, in which she asserted that the husband had violated the trial court’s pendente lite order entered on June 30, 2011, by failing to pay certain ordered expenses. Specifically, the wife alleged that the husband had failed to pay for pool supplies, to pay rent on the parties’ lake house, to pay for cellular telephone expenses, to pay for utility expenses, and to pay his child-support obligation. The wife requested:

“1. That the [husband] be required to pay all child support amounts which are past due and payable and all expenses as set forth in paragraph 5 of the Pendente Lite Order in which [the husband] is in arrears.
“2. That the [husband] be held in contempt for willfully and contemptuously failing to pay to the [wife] the child support and expenses as set forth in paragraph 2 and 5 of the Pendente Lite Order.”

On December 15, 2014, the trial court entered a judgment of divorce. In that judgment, the trial court awarded the wife, among other relief, $5,836.40 for “sums which have been previously ordered by the Court in the Pendente Lite Hearing and which have not been paid by the [husband].” On January 12, 2015, the husband filed a postjudgment motion in which he asserted, among other things, that the wife was not entitled to the relief apparently awarded on her contempt claims. The parties expressly agreed, and the trial court ordered, on three separate occasions, to extend the time allowed for disposition of the husband’s postjudgment motion, with the final agreement extending the deadline to July 30, 2015. The trial court entered a revised judgment on July 28, 2015, after holding a hearing on the husband’s postjudgment motion. The trial court did not address the wife’s contempt claims in its July 28, 2015, judgment.

On August 20, 2015, the husband filed a motion in which he requested the trial court to vacate the December 15, 2014, judgment because, he contended, it conflicted with the revised judgment entered on July 28, 2015. The husband filed his notice of appeal on September 4, 2015.

“ ‘This court has appellate jurisdiction over appeals from judgments that are final. § 12-22-2, Ala.Code 1975.’ Perry v. Perry, 92 So.3d 799, 800 (Ala.Civ.App.2012). ‘ “[T]he question whether a judgment is final is a jurisdictional question.” Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002). “A final judgment is one that disposes of all the claims and controversies between the parties.” Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004).’ Decker v. Decker, 984 So.2d 1216, 1219 (Ala.Civ.App.2007).”

Burkhalter v. Burkhalter, 98 So.3d 554, 555 (Ala.Civ.App.2012). The wife asserts that the July 28, 2015, judgment is nonfi-nal because it fails to dispose of the claims contained in her contempt motion. The husband argues that the exclusion of an award on the wife’s contempt claims in the July 28, 2015, judgment was intentional and that that judgment should be construed as denying the wife’s contempt motion.

“It is well settled that ‘a trial court’s failure to rule on a contempt motion relating to an interlocutory order would render any subsequent judgment nonfi-nal because the filing of the contempt motion would not be considered as having initiated a separate proceeding.’ Decker v. Decker, 984 So.2d [1216,] 1220, [(Ala.Civ.App.2007)]; see Perry [v. Perry ], 92 So.3d [799,] 800 [ (Ala.Civ.App. 2012) ] (dismissing the wife’s appeal as being from a nonfinal judgment because the trial court had failed to rule on the wife’s contempt motion regarding the husband’s failure to abide by the trial court’s status quo order); Logan v. Logan, 40 So.3d 721, 723 (Ala.Civ.App.2009) (same).’’

Id. The trial court neither afforded nor denied relief relative to the wife’s contempt claims in its July 28, 2015, judgment. The husband, in his initial brief to this court, states that the “record before this Court does not indicate that [the wife’s contempt] Motion was ever disposed of during the course of the pending action.” However, in his reply brief, the husband argues that the trial court’s December 15, 2014, judgment resolved the wife’s contempt claims and that the trial court intentionally omitted relief on those claims in its July 28, 2015, judgment entered after the postjudgment proceedings. The husband has not pointed this court to any authority for the proposition that the omission of a provision that was in an original judgment from an amended judgment is to be presumed to be intentional, and we note that the record does not contain a transcript from any postjudgment hearing. We have previously held that,

“before making a determination regarding the finality of a judgment that does not explicitly address a pending contempt petition, this court will consider whether any part of the trial court’s judgment implicitly rules on the pending contempt petition that was not explicitly ruled on in the judgment. [Brunson v. Brunson, 991 So.2d 723, 724-725 (Ala.Civ.App.2007) ] (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004)); see also A.C. v. C.C., 34 So.3d 1281, 1287 (Ala.Civ.App.2009) (dismissing an appeal as being from a nonfinal judgment when several pending contempt motions were left unadjudicated and there was nothing in the trial court’s purported final judgment that ‘constitute[d] an implicit ruling on any of the contempt motions’).”

Faellaci v. Faellaci, 67 So.3d 923, 925 (Ala.Civ.App.2011). Based on the information in the record, we cannot construe the trial court’s omission of a provision relating to the wife’s contempt motion in its July 28, 2015, judgment as an intentional denial of the wife’s requested relief. Because the trial court’s judgment fails to completely resolve all the claims of the parties, it is not a final judgment; therefore, this court does not have jurisdiction to consider the appeal. Id. Accordingly, the appeal is dismissed,

APPEAL DISMISSED.

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

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

      . The trial court entered an order purporting to vacate the December 15, 2014, judgment on October 22, 2015, after the husband had filed his notice of appeal. We note that, “ ‘[ojnce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.' ” Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001)(quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982)). See also Pike v. Reed, 3 So.3d 201, 203 (Ala.Civ.App.2008) (deeming an order entered after a notice of appeal from a nonfinal judgment had been filed to be a "nullity'').


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    LOCKHEED MARTIN CORPORATION v. STATE DEPARTMENT OF REVENUE.
    2141074.
    Court of Civil Appeals of Alabama.
    May 27, 2016.

      Matthew H. Lembke, Christopher R. Grissom, and Nicholas A. Danella of Bradley Arant Boult Cummings LLP, Birmingham, for appellant.
    Pamela B. Slate and James E. Beck III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee.
   MOORE, Judge.

Lockheed Martin Corporation (“Lockheed”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) in favor of the State Department of Revenue (“the Department”). We dismiss the appeal in part and affirm the judgment in part.

Procedural Background

In 1998 and 1999, Lockheed paid Alabama franchise taxes as a foreign corporation under former § 40-14-41, Ala.Code 1975. On March 23, 1999, the United States Supreme Court issued its opinion in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999) (“South Central Bell I”), in which it held the franchise tax established in former § 40-14-41 to be unconstitutional. Based on that holding, Lockheed petitioned the Department for a refund of the franchise taxes it had paid for tax years 1998 and 1999. The Department did not act on those petitions within six months, so they were denied by operation of law. See § 40-2A-7(c)(3), Ala.Code 1975. Lockheed subsequently appealed to the trial court in 2001. On August 18, 2015, the trial court entered a judgment denying Lockheed’s refund claims asserted on appeal. Lockheed timely appealed to this court.

Analysis

I. Historical Background

Before the enactment of the Alabama Business Privilege Tax Act of 1999, § 40-14A-1 et seq., Ala.Code 1975, Alabama law imposed different franchise taxes on domestic and foreign corporations. Former § 40-14-40, Ala.Code 1975, required corporations organized and existing under Alabama law to pay tax in amount equal to 1% of the par value of the capital stock of the corporation, subject to a $50 minimum tax. “Par value” is the dollar value shown on the face of the shares of stock in a corporation, which may be arbitrarily set by the corporation. See, e.g., Black’s Law Dictionary 1298 (10th ed.2014). Alabama law did not prohibit a domestic corporation from setting the par value of its stock at a level far below its book or market value for franchise-tax purposes. As a result, a domestic corporation could reduce its franchise-tax liability by reducing the par value of its capital stock. On the other hand, former § 40-14-41(a) required corporations from outside Alabama to pay 0.3% of the value of “the actual amount of its capital employed” in Alabama, as “capital” was explicitly defined in former § 40-14-41(b). Consequently, the Alabama tax scheme denied foreign corporations the ability to control their tax base in the same way as domestic corporations.

In South Central Bell I, supra, the United States Supreme Court determined that the Alabama franchise-tax scheme “facially discriminates against interstate commerce” because “Alabama law gives domestic corporations the ability to reduce their franchise tax liability simply by reducing the par value of their stock, while it denies foreign corporations that same ability.” 526 U.S. at 169. The Court determined that Alabama’s franchise-tax scheme imposed an unequal tax burden on foreign corporations, citing undisputed evidence in the record indicating that “the average domestic corporation pays only one-fifth the franchise tax it would pay if it were treated as a foreign corporation.” Id. The Court remanded the case to the Alabama Supreme Court “for further proceedings not inconsistent with th[e Supreme Court’s] opinion.” 526 U.S. at 171.

On remand, the Alabama Supreme Court held that the United States Supreme Court had intended for its decision declaring the Alabama franchise-tax scheme unconstitutional to be applied retroactively, leaving the question “remaining ... what remedy, if any, should be fashioned” in order to afford the taxpaying foreign corporations due process. South Cent. Bell Tel. Co. v. State, 789 So.2d 147, 148 (Ala.2000) (“South Central Bell II”). In Atchison, Topeka & Santa Fe Ry. v. O’Connor, 223 U.S. 280, 285, 32 S.Ct. 216, 56 L.Ed. 436 (1912), the United States Supreme Court held that due process requires that a state provide a taxpayer who has paid a tax under protest as to its legality a “clear and certain remedy.” In McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, Department of Business Regulation of Florida, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), the United States Supreme Court determined that, when a tax statute unconstitutionally discriminates against interstate commerce, a state has certain flexibility in remedying that discrimination against interstate commerce, which our supreme court summarized as giving the state the alternative of:

“1) giving a taxpayer a refund;
“2) collecting back taxes from the favored class;
“3) combining aspects of these first two options;
“4) barring a refund to a taxpayer that did not follow a state procedural law in seeking the refund; or
“5) refusing to give a remedy, in the rare case in which the State relied on now overturned precedent and the State now faces an extreme hardship if it must give a remedy.”

South Central Bell II, 789 So.2d at 148-49 (footnotes omitted). As to the first option, the Supreme Court concluded in McKes-son that a state could voluntarily pay a full refund, but, it said, the state could also retain that portion of the tax paid that would be valid under the Commerce Clause “by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its [domestic] competitors actually received.” 496 U.S. at 40. However, determining that there was an incomplete record, our supreme court did not decide which remedy Alabama would employ.

While the South Central Bell cases wound through the appellate-court system, Gladwin Corporation, a foreign corporation, and Arizona Chemical Company, another foreign corporation, filed a class-action lawsuit in the Montgomery Circuit Court to obtain refunds for the franchise taxes that they, and 18,000 other similarly situated foreign corporations, had paid to the state. Cynthia Underwood, who was at that time the commissioner of the Department, appealed from the class-certification order, arguing that the taxpayers in the class had failed to invoke the jurisdiction of the circuit court because they had not followed the administrative procedures to assert a refund petition set forth in the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act (“the TBOR”), § 40-2A-1 et seq., Ala.Code 1975. Our supreme court held that the foreign corporations could not maintain a direct action against the state because of sovereign immunity but that the taxpayers must strictly comply with the TBOR in order to prosecute their claim for a refund. Patterson v. Gladwin Corp., 835 So.2d 137, 140 (Ala.2002).

In Ex parte Surtees, 6 So.3d 1157 (Ala.2008), which affirmed in part and reversed in part this court’s decision in Vulcan Lands, Inc. v. Surtees, 6 So.3d 1148 (Ala.Civ.App.2007), our supreme court held that the state could not refuse to issue a refund of the foreign-corporation franchise tax that had been paid by Vulcan Lands, Inc., in 1999 because the state, by that point, was no longer relying on Alabama precedent preceding South Central Bell I that had validated the Alabama franchise-tax scheme, specifically White v. Reynolds Metals Co., 558 So.2d 373 (Ala.1989). The supreme court also held that, in order to obtain a refund, a foreign corporation did not have to prove the difference between the franchise tax it had paid and the franchise tax that had been paid by a direct domestic corporate competitor. Although in McKesson the United States Supreme Court had referred to domestic corporate competitors, our supreme court clarified that the McKesson Court had not intended that a foreign corporation must identify a “mirror-image” domestic corporation and establish the amount of tax paid by that domestic corporation in the same tax year in order to prove the extent of its injury. In conclusion, the supreme court specifically stated that it was not addressing other issues, including

“the amount of franchise taxes Vulcan actually would have paid in 1999 had it been assessed as a domestic corporation. See ... McKesson, 496 U.S. at 49 n. 33, 110 S.Ct. 2238 (where a refund of taxes collected in violation of the Commerce Clause is mandated, ‘the State’s obligation under the Due Process Clause ... extends only to refunding the excess taxes collected under the [discriminatory tax scheme]’).”

Ex parte Surtees, 6 So.3d at 1164.

II. Trial-Court Proceedings

As stated earlier, Lockheed filed an appeal to the trial court from the denial by operation of law of its petitions for a refund of the franchise taxes it had paid for tax years 1998 and 1999. After the case was reactivated from the trial court’s administrative docket, see note 2, the Department moved to dismiss the appeal based on the trial court’s lack of subject-matter jurisdiction. Among other arguments, the Department contended that, for the 1998 tax year, Lockheed had failed to meet the mandatory deadlines established in the TBOR for petitioning for a refund. The Department conceded that the trial court could consider the appeal for tax year 1999, but only to the extent of the grounds asserted in the original refund petition, which was based on the holding in South Central Bell I. After receiving responsive memoranda from Lockheed and conducting a hearing on the matter, the trial court denied the motion to dismiss and scheduled a bench trial to consider the merits of the appeal.

At the commencement of the bench trial, the Department maintained its position that the franchise-tax-refund claim filed by Lockheed for tax year 1998 had not been timely filed. In regard to the franchise-tax-refund claim for tax year 1999, the Department contended that Lockheed bore the burden of presenting evidence to prove the amount of refund to which it was entitled. Lockheed orally moved for a summary , judgment on the franchise-tax-refund claim for tax year 1999, but the trial court indicated that, at best, Lockheed would be entitled to a partial summary judgment as to the timeliness of that claim but that “it appears the amount of the refund is subject to dispute.”

Lockheed thereafter called as its only witness Jeffrey Fasick, a senior tax manager for the company whose job duties included the filing of franchise-tax documents required by the State of Alabama. Fasick testified as to the internal procedures used by Lockheed to generate and file its franchise-tax documents, including for tax years 1998 and 1999. During Fa-sick’s testimony, the Department stipulated that Lockheed had paid $733,649 in franchise taxes for tax year 1999. After Lockheed rested its case, the Department argued that Lockheed had failed to present any evidence on the issue of the amount of refund it was due. Lockheed objected, and the trial court inquired if Lockheed wanted to reopen the case to introduce evidence on that point. Counsel for Lockheed responded: “If we have to. Maybe not at this point right now.” Lockheed finally argued that it should be presumed that, given the same leeway as a domestic corporation, it would have manipulated its par value so that it would have paid only the minimum franchise tax of $50.

The trial court entered its final judgment denying Lockheed’s refund claims asserted- on appeal. That judgment provides:

“This cause having come before the Court for Bench Trial, testimony and evidence having been considered, it is hereby
“ORDERED, ADJUDGED AND DECREED, [Lockheed’s] request for tax refunds for year 1997 is withdrawn, for tax years 1996 and 1998 [Lockheed] failed to meet filing deadline requirements and therefor the tax refund is DENIED, for tax year 1999 [Lockheed] met the filing deadline requirements and requested a tax refund of 100% of tax paid, however the evidence is insufficient for the Court to determine what amount of refund [Lockheed] would be entitled to, therefore [Lockheed] having failed to meet the burden of proof [for] said request for tax refund for tax year 1999 is DENIED.”

Lockheed did not file a postjudgment motion but directly appealed from the final judgment to this court.

III. The Franchise-Tax-Refund Claim for Tax Year 1998

Under South Central Bell II, supra, the Department could lawfully deny Lockheed a refund of its 1998 franchise taxes on the basis that it “did not follow a state procedural law in seeking the refund.” 789 So.2d at 149. In Alabama, the TBOR represents the state’s exclusive procedural law for seeking a refund of franchise taxes, the terms of which a taxpayer must strictly comply with. Ex parte Jefferson Smurfit Corp., 951 So.2d 659, 665-66 (Ala.2006). In its final judgment, the trial court did not specify the filing deadlines of the TBOR that Lockheed failed to meet, but we determine that Lockheed did not establish that it had timely filed its franchise-tax-return extension request for tax year 1998.

At all relevant times, § 40-2A-7(c)(2)a., Ala.Code 1975, a part of the TBOR, has provided, in pertinent part:

“A petition for refund shall be filed with the department ... within (i) three years from the date that the return was filed, or (ii) two years from the date of payment of the tax, whichever is later, or if no return was timely filed, two years from the date of payment of the tax.”

(Emphasis added.) The parties agree that the 1998 franchise-tax return was due on March 16, 1998. However, in 1998 a taxpayer could file on the franchise-tax-return due date a request for an extension of up to six months to file a franchise-tax return. See Ala. Admin Code (Dep’t of Revenue), former Rule 810-2-3-.08 (repealed Nov. 30, 2006). At trial, the parties disputed whether Lockheed had timely filed its extension request. If it did not, then the due date for the filing of the franchise-tax return would have remained March 16,1998. Id.

Fasick testified that Lockheed had filed the extension request by depositing the request in the United States mail. It is undisputed that the Department did not receive the extension request on or before March 16, 1998. Section 40-l-45(a)(l), Ala.Code 1975, provides, as it did in 1998, that, if an extension request arrives at the Department beyond the filing due date, “the date of the United States postmark stamped on the cover in which such [extension request] is mailed shall be deemed to be the date of delivery....” Lockheed did not present any evidence of the United States postmark stamped on the envelope in which it mailed the 1998 franchise-tax-return extension request.

Section 40-l-45(b), Ala.Code 1975, provides: “This section shall apply in the case of postmarks not made by the United States Postal Service only if and to the extent provided by the Department of Revenue.” During the relevant periods, the Department had not promulgated any regulations authorizing acceptance of articles bearing a postage-meter imprint. See Ward v. Alabama Dep’t of Revenue, Op. of Ala. Dep’t Revenue, Admin. Law Div., Docket No. INC 95-396 (Nov. 7, 1995) (Order Dismissing Appeal); but see Rule 810-1-5-.01(4), Ala. Admin. Code (Dep’t of Revenue) (eff. Feb. 9, 2000) (regulating receipt of articles bearing postage-meter imprint).

Lockheed argues that the Department, through a series of opinions issued by the Department’s administrative-law judges, see Schoen v. Alabama Dep’t of Revenue, Op. of Ala. Dep’t Revenue, Admin. Law Div., Docket No. INC. 11-211 (Mar. 23, 2011) (Final Order); Zhang v. Alabama Dep’t of Revenue, Op. of Ala. Dep’t Revenue, Admin. Law Div., Docket No. INC. 10-1044 (Jan. 14, 2011) (Final Order); and Alabama Dep’t of Revenue v. Eli Witt Co., Op. of Ala. Dep’t Revenue, Admin. Law Div., Docket No. MISC. 91-125 (Aug. 6, 1991) (Final Order), has recognized that § 40-1-45 does not provide the exclusive means to prove timely mailing but that a fact-finder can consider “other evidence” when deciding when an extension request was mailed. We do not believe those opinions by the Department’s administrative-law judges stand for the proposition asserted by Lockheed, which would appear to be inconsistent with the plain and unambiguous language of § 40-1-45, but we need not decide that point because the “other evidence” upon which Lockheed relies does not establish that the 1998 franchise-tax return was timely filed. .

Fasick testified that Lockheed’s internal system notified him that Lockheed needed to file the franchise-tax-return extension request by March 15, 1998, which was a Sunday. Lockheed introduced into evidence a copy of a document memorializing that a check in the amount of $467,000 was written to the Department on the preceding Friday, March 13, 1998. Lockheed also submitted into evidence the franchise-tax-return extension request, which was dated March 16, 1998. Fasick testified that the 1998 activity list, which was also introduced into evidence, showed that his office delivered the completed extension request to the mail room on March 15, 1998, which, we note, preceded the date affixed to the extension request. At any rate, the activity list did not show when the mail room actually placed the request in the mail. Fasick testified: “I do not know when [the extension request] was actually mailed.”

At some point, Fasick was notified that the Department was penalizing Lockheed and charging interest because it had filed the extension request late. The Department submitted into evidence a December 8, 1998, form addressed to Lockheed notifying Lockheed that its extension request had not been filed timely. Hal Lambert, a tax accountant for Lockheed, responded to that notification by a letter dated January 13, 1999, in which he stated, in pertinent part:

“All steps for filing the extension payment ... had been completed by March 16,1998 and logged out of the Corporate Tax Department on March 16, 1998. At this point it is impossible for us to determine what caused the delay in having this payment mailed on March 17, 1998. Again the 1998 return was filed under the extension predicated on the fact that the extension payment had been mailed on March 16, 1998 which would have made it a timely filed extension.”

(Emphasis added.) Fasick could not explain why Lambert had indicated that Lockheed did not mail the 1998 franchise-tax-return extension request until March 17,1998.

Lockheed argues that it presented undisputed evidence indicating that it mailed the 1998 franchise-tax-retum extension request on March 16, 1998. However, the “undisputed” evidence indicates only that the mail reached the Lockheed mail room on March 16, 1998. Lockheed presented no evidence indicating that the extension request was actually deposited in the United States mail on that date. The only evidence on that precise point consisted of Lambert’s letter to the Department, which indicated a March 17, 1998, mailing date.

“It is ... well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). Appellate courts presume that a trial court resolves disputed questions of fact correctly when it considers a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). An appellate court will not disturb a trial court’s factual determination unless it is clearly erroneous and against the great weight of the evidence. Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010). From the evidence in the record, the trial court justifiably could have determined either that Lockheed did not prove, even by “other evidence,” that it had complied with § 40-1-45 or that the Department actually proved that the 1998 franchise-tax-return extension request had not been mailed until March 17, 1998, one day late.

Because the record supports the trial court’s determination that Lockheed did not meet the statutory deadline for filing its 1998 franchise-tax-return extension request, under § 40-2A-7(c)(2)a., Lockheed had two years from the date of the payment of the franchise tax to file a refund petition. Lockheed paid the franchise tax when it submitted its extension request, see § 40-l-45(a) (applying “mailbox rule” to tax payments), which the trial court impliedly determined to be March 17, 1998. Lockheed did not file its 1998 franchise-tax-refund petition until, at the earliest, September 15, 2000, which was well over two years after the payment was made. Lockheed did not strictly comply with the refund-petition filing deadline in § 4Q-2A-7(c)(2)a., so the trial court did not acquire jurisdiction to consider any appeal regarding that refund claim. See Patterson, supra.

Because it lacked subject-matter jurisdiction over the 1998 franchise-tax-refund claim, the trial court had no authority but to dismiss the claim. “ ‘Any other action taken by a court lacking subject matter jurisdiction is null and void.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999) (quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)). In this case, the trial court purported to deny the claim, but that action, constituting a ruling on the merits, is a void judgment that will not support an appeal. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000). Hence, we dismiss that aspect of the appeal relating to the 1998 franchise-tax-refund claim. See generally Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008).

IV. The 1999 Franchise-Tax-Refund Claim

According to McKesson, supra, a state can, consistent with due process, refund the excess tax collected as a result of its discriminatory practice or can bar a refund for failure to adhere to procedural law in seeking the refund. In closing arguments, Lockheed stated that it was petitioning for a refund based on “the difference between what it would have paid as a domestic corporation and what it actually paid as a foreign corporation.” Lockheed maintained that it would have paid only the statutory minimum of $50 as a domestic corporation if it had been given the same leeway to manipulate its par value that was afforded to domestic corporations under former § 40-14-40. The Department objected, and the trial court agreed, that Lockheed had not presented any evidence to support that contention. In its final judgment, the trial court determined that Lockheed could not obtain a refund because it had failed to discharge its burden of proving the amount of the refund it was due. On appeal, Lockheed argues that the trial court erred in imposing upon it the burden of proving through evidence its right to the refund it claims.

“ ‘In a refund suit the taxpayer bears the burden of proving the amount he is entitled to recover.’ United States v. Janis, [428 U.S. 433, 440,] 96 S.Ct. 3021[, 3025] (1976).” Home Depot USA, Inc. v. State Dep’t of Revenue, Op. of Ala. Dep’t Revenue, Admin. Law Div., Docket No. S. 06-1079 (June 6, 2008) (Final Order). At trial, Lockheed relied on South Central Bell I to argue that, as a matter of law, it was injured by the imposition of a discriminatory franchise tax so it did not have to present further evidence to obtain its refund. That legal injury undoubtedly bestowed standing on Lockheed to challenge the constitutionality of the former franchise tax on foreign corporations. See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007); General Motors Corp. v. Tracy, 519 U.S. 278, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997); and Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). However, neither South Central Bell I nor any of the cases cited by Lockheed establish that, as a matter of law, the legal injury that gives a foreign corporation standing also ipso facto satisfies its burden of proving the extent of its monetary damages. See, e.g., Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (indicating that the question of standing is a sepai*ate inquiry from substantive issues). The burden still remained on Lockheed to prove the amount of refund that would remedy the discrimination pursuant to the McKesson standard.

Under the former franchise-tax scheme, Lockheed, if it were a domestic corporation, would have owed a franchise tax based on 1% of the par value of its stock in 1999. Lockheed did not present any evidence of the par value of its stock at trial, protesting in closing argument that it had not been afforded the opportunity to reduce its par value so as to reduce its franchise-tax liability. However, during the trial, the Department elicited testimony from Fasick that Lockheed had paid franchise taxes in other jurisdictions based on the par value of its stock and that, to his knowledge, Lockheed had never reduced its par value. Lockheed did not question Fasick regarding how Lockheed had established the par value of its stock, whether it could, consistent with its corporate charter, reduce that par value, or whether it would have benefited Lockheed to manipulate its par value solely to reduce its Alabama franchise-tax liability, given all the relevant tax implications and other considerations. Lockheed did not establish through Fasick or any other means that, if given the leeway to reduce its par value, it not only would have done so or that its tax base would have produced a franchise-tax liability at or below the $50 minimum. Lockheed asserts that it could not have feasibly proven what amount of franchise taxes it would have paid in 1999 as a domestic corporation, but it did not even attempt to prove that point through admissible evidence.

During closing arguments, the Department also pointed out that, in South Central Bell I, the taxpayers adduced evidence indicating that “the average domestic corporation pays only one-fifth the franchise tax it would pay if it were treated as a foreign corporation.” 526 U.S. at 169. Although Lockheed had already rested its case, the trial court inquired if Lockheed intended to present similar evidence of how the disparity in the taxation scheme had impacted Lockheed. Lockheed’s counsel replied: “If we have to. Maybe not at this point right now.” Lockheed did not argue that the trial court was placing upon it an unfair and unconstitutional burden of proof, a point we cannot consider for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate c]ourt cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

In McKesson, the Supreme Court concluded that the process due a taxpayer includes “an opportunity to contest the validity of the tax and a ‘clear and certain remedy designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.” 496 U.S. at 40. In the present case, the Department afforded Lockheed the clear and certain remedy of a refund of the excess franchise taxes paid by Lockheed upon presentation of sufficient evidence of that amount. Lockheed failed, however, to avail itself of that opportunity by presenting evidence to support its refund claim. Lockheed instead argued, as it does again on appeal, that the refund amount it claimed should be presumed as a matter of law. We are not persuaded that the law dictates the refund amount Lockheed claims, but we are convinced that the trial court correctly ruled that Lockheed bore the burden of proving through sufficient evidence the refund amount. Lockheed has not shown that the trial court committed any error. Therefore, we affirm that portion of the trial court’s judgment denying the 1999 franchise-tax-refund claim.

AFFIRMED IN PART AND APPEAL DISMISSED IN PART.

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

      . Lockheed also requested a refund for the tax years 1996 and 1997; however, Lockheed appeals only the denial of its tax-refund requests for the 1998 and 1999 tax years, so this opinion addresses only those years.

      . The trial court placed the case on its administrative docket on January 10, 2002, based on an agreement of the parties. On July 23, 2014, the trial court ordered the parties to show cause within 30 days as to why the case should not be dismissed. In response, Lockheed filed a motion to set the case for trial, which the trial court granted.

      . Former § 40-14-40 actually did not refer to “par value” but based the domestic-corporation franchise tax only on the value of its “capital stock,” which was construed by Alabama courts to mean the par value of the stock issued by the corporation to its shareholders. After the United States Supreme Court issued its opinion holding the Alabama franchise-tax scheme to be unconstitutional, the Alabama Supreme Court determined that the legislature had not intended to tax the "capital stock” of domestic corporations based on only "par value” and overruled the line of cases that had held otherwise. See South Cent. Bell Tel. Co. v. State, 789 So.2d 133 (Ala.1999). The court issued that decision as an "interim order” to advise the legislature, which was then drafting the new franchise-tax scheme that would become the Alabama Business Privilege Tax Act of 1999, on the legal meaning of the term "capital stock.”

      . In South Central Bell II, our supreme court remanded the case to the lower court to develop the position of the parties as to the appropriate remedy as well as to marshal the evidence in support of that position. However, the parties settled their dispute before the case could be returned to the supreme court for further consideration. See Ex parte Surtees, 6 So.3d 1157, 1159 (Ala.2008).

      . Section 40-2A-7 was amended effective June 5, 2007, and was amended again effective October 1, 2014. Neither of those amendments affected the language in the quoted provision.

      . Ordinarily, the franchise-tax return would have been due on March 15, 1998, see Ala. Code 1975, former § 40-14-44 and former § 40-14-48 (repealed by Ala. Acts 1999, Act No. 99-665, § 9), but that date fell oh a Sunday, so the filing date was carried over to the next working day pursuant to Ala.Code 1975, § 1-1-4, and Ala. Admin. Code (Dep’t of Revenue), Rule 810—1—5—.01(b).

      . In that letter, Lambert memorialized a telephone conversation in which the Department agreed to waive any penalty or late-filing charges. Lockheed argues that the waiver constitutes "other evidence” proving that Lockheed timely mailed the 1998 extension request. We disagree. The evidence in the record shows that the Department never conceded that Lockheed had timely filed the extension request but, rather, that the Department waived the penalties solely to induce Lockheed to implement an electronic-funds-transfer payment system to avoid future delivery problems.

      . We also do not consider Lockheed’s argument, raised for the first time on appeal, see

        Andrews, supra, that requiring Lockheed to prove what amount of franchise taxes it would have paid as a domestic corporation would be unconstitutional because Alabama’s franchise-tax scheme did not provide for apportionment to account for the value of a domestic corporation's assets located outside the taxing state.


text:
    K.D.C. v. R.J.M. K.D.C. v. D.A.M.
    2150198 and 2150199.
    Court of Civil Appeals of Alabama.
    May 27, 2016.

      Mickey J. Gentle of Moore & Gentle, Attorneys at Law, LLC, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

In appeal no. 2150198, K.D.C. (“the custodian”) appeals from a judgment entered by the Madison Juvenile Court (“the juvenile court”) denying her claim for child support from R.J.M. (“the father”) for the periods she exercised custody of K.E.M. and R.R.M., the children of the father and D.A.M. (“the mother”). In appeal no. 2150199, the custodian appeals from a judgment entered by the juvenile court denying her claim for child support from the mother for the period she exercised custody of R.R.M. We reverse the juvenile court’s judgment in appeal no. 2150198; we affirm the judgment in appeal no. 2150199.

The custodian was awarded custody of K.E.M. by a judgment of the Jefferson Juvenile Court that was entered on May 2, 2013. The Jefferson Juvenile Court awarded custody of R.R.M. to the custodian in a judgment entered on April 4, 2014. Neither the May 2, 2013, judgment nor the April 4, 2014, judgment addressed child support. The custodian filed in the juvenile court separate actions seeking child support from the mother for R.R.M. and from the father for K.E.M. and R.R.M. The juvenile court entered judgments denying the custodian’s requests for child support, and the custodian appeals.

The custodian testified that she had exercised custody of K.E.M. from April 2013 through July 15, 2014; however, K.E.M. turned 19 and was emancipated on December 1, 2013. The custodian testified that she had exercised custody of R.R.M. from November 1, 2013, through March 2015. The mother and the father testified that they were generally unaware that the custodian had been awarded custody of R.R.M., and they denied that they had any responsibility for paying child support.

Section 12-15-314(e), Ala.Code 1975, provides, in pertinent part:

“When a child is placed in the legal custody of the Department of Human Resources or any other department, agency, organization, entity, or person pursuant to this section and when the parent, legal guardian, or legal custodian of the child has resources for child support, the juvenile court shall order child support in conformity with the child support guidelines as set out in Rule 32, Alabama Rules of Judicial Administration.”

See also B.H. v. Tuscaloosa Cty. Dep’t of Human Res., 161 So.3d 1215, 1219 (Ala.Civ.App.2014) (“When a juvenile court awards custody of children to [the Department of Human Resources] and determines that the parents are capable of contributing financially to the support of the children, the juvenile court must ‘order child support in conformity with the child support guidelines set out in Rule 32, Alabama Rules of Judicial Administration.’ § 12-15-314(e), Ala.Code 1975.”), cert. denied, Ex parte B.H., 161 So.3d 1220 (Ala.2014). The custodian argues that the juvenile court should have awarded her child support pursuant to § 12-15-314(e).

Section 12-15-314(e) clearly applies when a juvenile court places a child that it has determined to be dependent in the custody of a third party, i.e., someone other than a parent. In this case, the Jefferson Juvenile Court, upon finding the children to be dependent and awarding their custody to the custodian, should have ordered child support, but it did not. That omission does not leave the custodian without redress. Section 12-15-314(e) can be read broadly enough to allow a juvenile court that has acquired jurisdiction over the matter to order retroactive child support when a different juvenile court has previously declared the child dependent and has placed the child in the custody of a third party without an accompanying child-support order. See also § 30-3-110 et seq., Ala.Code 1975 (authorizing action by legal custodian for retroactive child support). Given the strong public policy favoring child support, see Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963), we believe the legislature intended that § 12-15-314(e) would apply in the context of the present cases.

The record shows that the custodian filed a CS-42 child-support-guidelines form to establish the child-support obligation of the father. See Rule 32(E), Ala. R. Jud. Admin. That form shows that the father had the resources to pay child support during the pertinent periods. The father did not file any child-support forms or testify as to his income. The juvenile court therefore had before it sufficient and undisputed information upon which to calculate the father’s child-support obligation. The juvenile court thus erred in denying the custodian’s claim for child support against the father with regard to K.E.M. and R.R.M. In appeal no. 2150198, we therefore reverse the juvenile court’s judgment and remand the cause to the juvenile court with instructions to determine the amount of child support due the custodian from the father.

The custodian did not submit any child-support forms or present any evidence from which the juvenile court could have determined that the mother had the resources to pay child support or the amount of child support due from the mother. Therefore, we conclude that the custodian failed to meet the prerequisites for recovery of child support from the mother under § 12-15-314(e). The custodian petitions this court to remand the case to the juvenile court to allow her to present the necessary evidence, but she cites no legal authority authorizing such procedure. See Rule 28(a)(10), Ala. R. Civ. P. Accordingly, in appeal no. 2150199, the judgment in favor of the mother is affirmed.

2150198—REVERSED AND REMANDED WITH INSTRUCTIONS.

2150199—AFFIRMED.

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

      . The State of Alabama filed child-support actions on behalf of the custodian against the father in November 2013 and against the mother in March 2014. See Ala.Code 1975, § 38-10-4. The juvenile court later dismissed those actions, but subsequently set aside the dismissals, and, by separate orders entered on October 14, 2015, allowed the custodian to intervene to pursue her own claims for child support.


text:
    J.L. v. G.N. and S.A.
    2150265.
    Court of Civil Appeals of Alabama.
    May 27, 2016.
    Nathan A. Brock of Brock O’Neal Law, LLC, Cullman, for appellant.
    Submitted on appellant’s brief only.
   DONALDSON, Judge.

J.L. (“the foster mother”) appeals from the final judgment of the Cullman Juvenile Court (“the juvenile court”) dismissing her dependency petition seeking custody of J.D.A. (“the child”) because the child was no longer dependent. On appeal, the foster mother does not challenge the juvenile court’s judgment of dismissal; instead, she challenges an earlier interlocutory order entered by the juvenile court that granted a motion to vacate a previous judgment filed by G.N. (“the father”). Because that interlocutory order was “dissolved upon the dismissal of the action and [is] no longer enforceable,” we dismiss the appeal as moot. K.L.R. v. K.G.S., 201 So.3d 1200, 1201 (Ala.Civ.App.2016).

On November 10, 2008, the foster mother filed in the juvenile court a dependency petition seeking custody of the child. The juvenile-court clerk docketed the case as case no. JU-08-458.01 (“the .01 case”). On May 27, 2010, the juvenile court entered a summary judgment in the .01 case vesting the foster mother with legal and physical custody of the child.

On June 18, 2010, S.A. (“the mother”) filed a petition for custody, which initiated case no. JU-08-458.03 (“the .03 case”). On February 18, 2011, the father filed a “Motion for hearing under Alabama Rule 60(b)(1)” in the .03 case. In his motion, the father asserted that the juvenile court had entered the May 27, 2010, custody order in the .01 case without any notice to the father or a hearing. On February 23, 2011, the juvenile court entered an order in the .03 case in which it denied the father’s motion on the basis that the motion had been filed more than four months after the entry of the judgment to which it was directed.

On March 31, 2011, it appears that the father attempted to file a petition for custody in case no. JU-08-A58.04 (“the .04 case”). That petition was date-stamped by the clerk on March 31, 2011. However, the petition is not referenced in the case action summary for either the .01 case or the .03 case. According to the case action summary in the .04 case, the .04 case was not initiated until August 24, 2015. That case appears to have been initiated by the father’s petition for custody that he attempted to file in 2011.

On November 2, 2011, the father filed in the .03 case a verified motion to modify the May 27, 2010, custody order. On January 13, 2012, the juvenile court entered a temporary order granting the father visitation based on the parties’ agreement. Between 2012 and 2013, the father’s visitation rights with the child were eventually increased. On April 16, 2013, the father filed in the .03 case an amended motion to modify the May 27, 2010, custody order. It does not appear that the juvenile court ruled on the father’s motions.

On August 24, 2015, the father filed in the .03 case a “Motion to Vacate,” in which he requested that the juvenile court vacate the May 27, 2010, custody order entered in the .01 case. In his motion to vacate, the father argued that he had never been notified of a custody hearing and that neither the May 27, 2010, custody order nor the record indicated that the father had been served with notice of a custody hearing or that he was present at such a hearing. On August 26, 2015, after a hearing at which the juvenile court heard only the arguments of counsel, the juvenile court entered an order in both the .03 case and the .04 case setting aside as void the May 27, 2010, custody order entered in the .01 case. The juvenile court found that “the father did not get served and was not present at the hearing and the father’s visitation was not specified.” The juvenile court further found that it was in the child’s best interests to remain in the custody of the foster mother pending a hearing on that matter.

On August 28, 2015, the father filed a motion to dismiss the foster mother’s dependency petition seeking custody of the child that had been filed in the .01 case on November 10, 2008. The father filed that motion in the .01 case and in the .03 case.

On September 10, 2015, the foster mother filed a petition for a writ of mandamus in this court directed to the juvenile court’s order of August 26, 2015; the mandamus proceeding was docketed as case no. 2141011. In her mandamus petition, the foster mother argued that the juvenile court should not have set aside the May 27, 2010, custody order. On September 15, 2015, this court dismissed the foster mother’s mandamus petition, without an opinion, because the foster mother had failed to comply with the procedural requirements of Rule 21, Ala. R.App. P. Ex parte J.M.L. (No. 2141011, Sept. 15, 2015), _ So.3d _ (Ala.Civ.App.2015)(table).

On December 3, 2015, the foster mother filed a motion in the .01, the .03, and the .04 cases seeking to transfer the proceedings to the Cullman Circuit Court (“the circuit court”) because, she asserted, the child was no longer dependent and the juvenile court therefore lacked subject-matter jurisdiction.

On December 3, 2015, the juvenile court held a hearing at which all parties stipulated that the child was no longer dependent. After that hearing, the juvenile court entered the following order in the .01, the .03, and the .04 cases:

“This matter is before the Court on the petitions for custody of the foster mother, [J.L.] ...

“The foster mother filed this morning a Motion to Transfer to Circuit Court alleging the Juvenile Court no longer has subject matter jurisdiction of these petitions as the child is no longer dependent. After a brief hearing wherein all parties agreed the child is no longer dependent the Court hereby rules as follows:

“1. The Petition for Custody is Dismissed, costs taxed as paid.
“2. Custody of the minor child shall be dealt with in CS 2009-193 in the District Court of Cullman County, Alabama.
“3. All other pending motions are moot.”

On December 4, 2015, the juvenile court entered an order in all three cases purporting to deny the foster mother’s motion to transfer the cases to the circuit court. On December 16, 2015, the foster mother filed a timely notice of appeal in all three cases. Only the foster mother has filed an appellate brief.

On appeal, the foster mother argues that the juvenile court erred in entering the August 26, 2015, order that set aside the May 27, 2010, custody order. She does not challenge the final judgment dismissing her dependency petition seeking custody of the child or the order purporting to deny her motion to transfer the cases to the circuit court, and, therefore, we do not address their propriety.

The trial court’s August 26, 2015, order, which granted the father’s “motion to vacate” filed on August 24, 2015, was interlocutory and not final. “Generally, an appeal cannot be taken from an order setting aside a judgment or order pursuant to Rule 60(b), Ala. R. Civ. P., because further proceedings are contemplated by the trial court, and, therefore, the judgment or order is considered interlocutory. See Tuscaloosa Chevrolet, Inc. v. Guyton, 41 So.3d 95, 99 (Ala.Civ.App.2009).” Total Fire Prot., Inc. v. Jean, 160 So.3d 795, 797 n. 1 (Ala.Civ.App.2014). “A petition for a writ of mandamus is an appropriate remedy for challenging an interlocutory order.” Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008). Although the foster mother filed a petition for a writ of mandamus directed to the August 26, 2015, order, that petition was dismissed.

Thereafter, the juvenile court dismissed the cases after all parties stipulated at the December 3, 2015, hearing that the child was no longer dependent. “When a juvenile court determines that a child is not dependent, the juvenile court ‘lack[s] jurisdiction to enter a judgment affecting the custody of the child.’ ” J.A. v. C.M., 93 So.3d 953, 955 (Ala.Civ.App.2012) (quoting L.R.J. v. C.F., 75 So.3d 685, 687 (Ala.Civ.App.2011)). “If a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.” K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010).

The foster mother’s arguments in this appeal pertain only to the August 26, 2015, interlocutory order entered before the juvenile court’s dismissal of the actions for lack of subject-matter jurisdiction.

“ ‘As a general rule, interlocutory orders become unenforceable upon a final judgment of dismissal.’ Ex parte W.L.K., 175 So.3d 652, 661 (Ala.Civ.App.2015) (citing Maddox v. Maddox, 276 Ala. 197, 199, 160 So.2d 481, 483 (1964) (discussing Duss v. Duss, 92 Fla. 1081, 111 So. 382 (1927))). Generally, the dismissal of an action operates to annul previously entered orders, rulings, or judgments. See Ex parte Sealy, L.L.C., 904 So.2d 1230, 1236 (Ala.2004) (quoting 27 C.J.S. Dismissal and Nonsuit § 39 (1959)) (holding that a voluntary dismissal renders the proceedings a nullity and ‘ “carries down with it previous proceedings and orders in the action” ’); McNairy v. McNairy, 416 So.2d 735, 736 (Ala.1982) (‘The motion to dismiss was granted by the circuit court, which also held for naught all prior orders of the probate court.’). See also 24 Am.Jur.2d Dismissal § 89(2008).”

K.L.R., 201 So.3d at 1203. Furthermore, “[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.” Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006)(citing Employees of Montgomery Cty. Sheriff's Dep’t v. Marshall, 893 So.2d 326, 330 (Ala.2004)).

The judgment of dismissal entered by the juvenile court for lack of subject-matter jurisdiction dissolved the August 26, 2015, interlocutory order, thus rendering the issues raised by the foster mother on appeal moot. Therefore, the appeal is dismissed.

APPEAL DISMISSED.

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

THOMAS, J., recuses herself.

      . There is no indication from the record as to whether there was ever an ".02” case.

      . We have construed the father's motion to vacate as a Rule 60(b) motion.

      . The record indicates that there was no ‘‘final” custody hearing in the .01 case and that the May 27, 2010, custody order was entered after the mother and the father were given an opportunity and failed to file appropriate petitions regarding the child’s custody and after the foster mother had filed a motion for a summary judgment.


text:
    SELMA AIR CENTER, INC. v. CRAIG FIELD AIRPORT AND INDUSTRIAL AUTHORITY.
    2150339.
    Court of Civil Appeals of Alabama.
    May 27, 2016.
    John Adam Chavez of Chavez Law Firm, LLC, Birmingham, for appellant.
    B. Kincey Green, Jr., and Allen S. Reeves of Reeves & Stewart PC, Selma, for appellee.
   MOORE, Judge.

Selma Air Center, Inc. (“SAC”), appeals from a preliminary injunction requiring it to vacate the premises operated by Craig Field Airport and Industrial Authority (“Craig Field”). We reverse the judgment.

For purposes of this appeal, the following material facts are not disputed. On May 1, 2013, Craig Field leased a “fixed based operation” to SAC. The lease provides, in pertinent part:

“Said lease shall be for a period from 1st day of May, 2013, to the 31st day of December, 2025. However, either party has the option to terminate this lease (with or without cause) upon ninety (90) days written notice.”

On September 28, 2015, Craig Field hand-delivered to SAC a notice of its intent to terminate the lease within 90 days. At the end of that period, SAC had not vacated the premises, so Craig Field filed an application for a preliminary injunction to require SAC to vacate the premises. After a hearing, the Dallas Circuit Court (“the trial court”) entered the requested preliminary injunction on January 5, 2016, ordering SAC to vacate the premises and restraining SAC from occupying the premises after January 12, 2016. SAC timely appealed.

SAC argues on appeal that the trial court erred in entering the preliminary injunction in favor of Craig Field. The Alabama Supreme Court has outlined our standard of review with regard to an appeal of an order granting a preliminary injunction as follows:

“ ‘The decision to grant or to deny a preliminary injunction is within the trial court’s sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion.’ SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So.2d 706, 709 (Ala.2005).
“A preliminary injunction should be issued only when the party seeking an injunction demonstrates:
“ ‘ “(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].” ’
“Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003)(quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)).
“To the extent that the trial court’s issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply. We find the rule applied by the United States Supreme Court in similar situations to be persuasive: ‘We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion.’ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006)....”

Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1175-76 (Ala.2008).

In this case, SAC occupies a portion of the Craig Field premises pursuant to a lease which, according to its terms, may be terminated upon 90 days’ written notice, with or without cause. Craig Field hand-delivered notice of its intent to terminate the lease in 90 days. Although SAC claimed at trial that the method of delivery was invalid, SAC waives that argument on appeal. Thus, SAC acknowledges that Craig Field likely would prevail on any claim that the leasehold has expired, terminating SAC’s right to occupy the premises. SAC argues, however, that Craig Field did not meet the other requirements for a preliminary injunction. We agree.

The prevailing rule throughout this country holds that “[a] bill in equity, such as for an injunction, ordinarily is not available to the landlord for the recovery of possession of the premises except where there is no adequate remedy at law and the landlord is threatened with a permanent and continuing injury.” 52B C.J.S Landlord and Tenant § 1500 (2012) (footnotes omitted). Alabama law provides various legal remedies pursuant to which a commercial landlord may regain possession of premises wrongfully withheld by a holdover tenant, such as through a common-law action of ejectment, see Jackson v. Davis, 153 So.3d 820 (Ala.Civ.App.2014), a statutory action of ejectment, see Ala. Code 1975, § 6-6-280(b), or an unlawful-detainer proceeding, see Ala.Code 1975, § 6-6-310 et seq. At trial, Craig Field did not present any evidence indicating that those legal remedies would not be adequate or that it was being threatened with a permanent and continuing injury.

The executive director of Craig Field testified that some of its customers had expressed dissatisfaction with SAC’s services, that SAC may have violated state law regarding its fueling operations, and that, at one point, it had appeared that SAC contemplated using the premises in a manner outside the scope of the lease. None of that testimony establishes irreparable injury to Craig Field that cannot be adequately redressed through legal remedies. The executive director of Craig Field also testified as follows:

“[Counsel for Craig Field]: And what role does the fixed-base operator play?
“[Executive director]: Well, I always like to think that that’s kind of the front door to Selma and Dallas County. A lot of people, that’s the first thing they see when they get out. We have people that fly in to several of the industries here.
“Anyway. We continually are in a recruiting process for—and competing with other communities for economic development projects. In my opinion, that’s why we need a reliable [fixed-base operation]. Somebody is not going to call and the phone’s not going to be turned off. They go in there, the power is not going to be turned off. They come in and they would have sufficient fuel to refuel the aircraft when they fly in. And those type things could cost us economic projects that we are working on now, some that we will be working on, and projects that we don’t even know exist yet. They could come in and see a mess like that and turn around and leave and we would never know they came to Dallas County.”

That speculative testimony does not establish the probability of permanent, irreparable injury to Craig Field, even if we could consider the potential economic impact to Dallas County in general.

On appeal, Craig Field asserts that, in order to obtain a writ of possession through an ejectment action or an unlawful-detainer action, it would have to await adjudication and possible appeal of its claims. However, Craig Field fails to explain how it will be irreparably damaged in the meantime. The possibility that, during litigation, some as yet unidentified industrial representative may be so outraged by the fixed-base-operation performance of SAC that it will reject Dallas County as an investment opportunity on that basis alone does not suffice.

Craig Field failed to prove that it had no adequate remedy at law or that it would suffer irreparable injury absent the granting of the injunction. We conclude, therefore, that the trial court erred in granting Craig Field’s application for a preliminary injunction. Accordingly, the trial court’s judgment is reversed and the case is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . "A fixed base operation is a commercial facility that offers a variety of services primarily to pilots and passengers of general aviation aircraft.” Epps Aircraft, Inc. v. Montgomery Airport Auth., 570 So.2d 625, 626 n. 1 (Ala.1990).

      . We take judicial notice that the executive director of Craig Field acts as an ex officio board member of the Selma and Dallas County Economic Development Authority. See Ala.Code 1975, § 45-24-90(b)(3).


author: THOMAS, Judge.

text:
    D.T. v. W.G.
    2150349.
    Court of Civil Appeals of Alabama.
    May 27, 2016.

      M. Virginia Buck, Northport, for appellant.
    Yuri R. Linetsky, Civil Law Clinic, University of Alabama School of Law, Tuscaloosa, for appellee.
   THOMAS, Judge.

In November 2013, the Tuscaloosa Probate Court (“the probate court”) entered a judgment approving the adoption of A.S. (“the child”) by the child’s maternal grandmother, D.T. (“the adoptive parent”). In July 2015, W.G. (“the paternal grandmother”) filed a petition seeking an award of grandparent visitation with the child pursuant to Ala.Code 1975, § 26-10A-30. The paternal grandmother did not request that a summons be issued or serve the adoptive parent with the petition by certified mail as required by Rule 4(a)(1), Ala. R. Civ. P. Instead, the paternal grandmother served the petition on the adoptive parent as one would serve a motion under Rule 5, Ala. R. Civ. P., by mailing a copy of the petition to the attorney who had served as the adoptive parent’s counsel in the adoption proceeding. After a hearing, which the adoptive parent did not attend, the probate court entered a judgment on November 2, 2015, awarding visitation to the paternal grandmother. On November 20,2015, the adoptive parent filed a motion to set aside the November 2, 2015, judgment, arguing that the probate court lacked jurisdiction to entertain the paternal grandmother’s petition because more than 30 days had elapsed since the entry of the adoption judgment in 2013 and because the adoptive parent had not been properly served with the petition. The probate court denied the adoptive parent’s motion, and she appealed.

On appeal, the adoptive parent argues that the November 2, 2015, judgment of the probate court is void for two reasons. First, she contends that the probate court lacks jurisdiction to entertain an action for grandparent visitation pursuant to § 26-10A-30 after the expiration of 30 days after the entry of an adoption judgment. Second, the adoptive parent argues that the paternal grandmother’s failure to properly serve her with the petition under Rule 4 violated the her right to due process and, therefore, that the November 2, 2015, judgment is void.

The language of § 26-10A-30 does not support the adoptive parent’s argument that the jurisdiction of the probate court to entertain a petition for grandparent visitation under that statute is limited to the time during which the adoption proceeding is pending or within 30 days after entry of the adoption judgment. Section 26-10A-30 states:

“Post-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any. Such visitation rights may be maintained or granted at the discretion of the court at any time prior to or after the final order of adoption is entered upon petition by the natural grandparents, if it is in the best interest of the child.”

(Emphasis added.) The plain language of the statute compels us to conclude that a probate court may entertain an action seeking grandparent visitation under § 26-10A-30 at any time before or after a judgment of adoption is entered. We must therefore reject the adoptive parent’s first argument.

However, we agree with the adoptive parent that the paternal grandmother was required to comply with Rule 4(a)(1) by serving the adoptive parent with the petition seeking grandparent visitation. The paternal grandmother contends that, pursuant to § 26-10A-30, she had her choice of instituting a separate action, which, she admits, would have required service of process, or presenting a “corollary claim” within the original adoption action, which, she contends, requires only Rule 5 service of her initial pleading. Not surprisingly, the paternal grandmother has presented no authority for the startling contention that she could seek an order awarding grandparent visitation without having to perfect service on the adoptive parent because her claim is “corollary” to the original adoption action. Our attempt to locate a reference in Alabama law to a “corollary claim” has failed to reveal the use of that term in any reported opinion.

If the paternal grandmother is under the impression that she could institute a new action seeking grandparent visitation by motion and serve the adoptive parent pursuant to Rule 5, she is mistaken. The document the paternal grandmother filed in the probate court cannot be construed as a mere motion. “As one court concisely has stated, ‘the office of a motion is not to initiate new litigation, but to bring before the court for some ruling some material but incidental matter arising in the progress of the case in which the motion is filed.’” Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 96, 10 A.3d 498, 505 (2010) (quoting State v. McNerny, 239 Neb. 887, 890, 479 N.W.2d 454, 457 (1992)).

“A motion is distinguishable from the more formal application for relief by petition or complaint. A motion is not an independent right or remedy; it is confined to incidental matters in the progress of a cause. A motion relates to some question that is collateral to the main object of the action and is connected with and dependent upon the principal remedy. It is not consonant with regular procedure to raise in a motion wholly distinct and independent matters which generally should be the subject of a formal petition or complaint.”

Donald J. v. Evna M., 81 Cal.App.3d 929, 933-34, 147 Cal.Rptr. 15, 18 (1978) (citations omitted). No action was pending before the probate court at the time the paternal grandmother filed the document requesting visitation, and the document requested specific relief based on her right to visitation under § 26-10A-30 as opposed to some collateral or incidental relief arising during the pendency of litigation. Thus, the document that the paternal grandmother filed was not a motion.

In Alabama, “[a] civil action is commenced by filing a complaint with the court.” Rule 3(a), Ala. R. Civ. P. A “complaint” is defined as “[t]he initial pleading that starts a civil action.... In some states, this pleading is called a petition,” Black’s Law Dictionary 344 (10th ed.2014).

“In general, a ‘petition’ is a formal document filed in court and served on all parties, which commences the process by which a party may obtain judicial relief, and provides the opposing party with notice of the requested relief. As a pleading, it is the plaintiffs or claimant’s ■written statement of fact which invokes the jurisdiction of the court, sets out the cause of action, and seeks relief. A party may initiate, bring, or create a suit, where before no suit existed, by filing an original petition to invoke judicial process, or, after someone else creates a lawsuit by filing an original petition, may seek to intervene for good cause.”

61A Am.Jur.2d Pleading § 110 (2010) (footnotes omitted). The document the paternal grandmother filed invoked the jurisdiction of the probate court to adjudicate her claim for grandparent visitation pursuant to § 26-10A-30, and, therefore, it was a petition.

The paternal grandmother’s filing of the petition commenced an action for grandparent visitation. According to Rule 4(a)(1), “[u]pon the filing of the complaint, ... the clerk shall forthwith issue the required summons or other process for service upon each defendant.” We explained in Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002), that Rule 4(a)(1) requires that, “after a proper filing, service be made by use of a summons or other process issued by the clerk of the court.”

Furthermore, it is well settled that an action instituted to modify an existing judgment based on changed circumstances is “a separate action that requires a proper filing, the payment of a filing fee, and service.” Estrada v. Redford, 855 So.2d 551, 554 (Ala.Civ.App.2003) (citing Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000), and Farmer, 842 So.2d at 680-81). The paternal grandmother’s petition requests modification of the adoption judgment, which did not include an award of visitation, to award her visitation with the child. Therefore, the paternal grandmother’s petition commenced a new modification action, and she was required to properly serve the adoptive parent pursuant to Rule 4(a)(1). Farmer, 842 So.2d at 681.

“‘One of the requisites of personal jurisdiction over a defendant is “perfected service of process giving notice to the defendant of the suit being brought.” Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983).... A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ”

Austin v. Austin, 159 So.3d 753, 759 (Ala.Civ.App.2013) (quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993)). The paternal grandmother’s failure to serve the adoptive parent with the petition pursuant to Rule 4(a)(1) deprived the probate court of jurisdiction, and its judgment is therefore void. Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995) (“Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.”). Because the probate court’s judgment is void, it will not support an appeal. Farmer, 842 So.2d at 681. Accordingly, the adoptive parent’s appeal is dismissed.

APPEAL DISMISSED.

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

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

      . Rule 4(a)(1) provides, in pertinent part: “Upon the filing of the complaint, or other document required to be served in the manner of an original complaint, the clerk shall forthwith issue the required summons or other process for service upon each defendant.” The Alabama Rules of Civil Procedure provide that service on an individual may be accomplished by process server, see Rule 4(i)(l), by certified mail, see Rule 4(i)(2), or, in certain instances, by publication, see Rule 4.3, Ala. R. Civ. P,

      . Rule 5 reads, in pertinent part, as follows:
      "(a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties....

      “(b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or the party or by mailing it to the attorney or the party at the attorney’s or party’s last known address, or, if no address is known, by leaving it with the clerk of the court....

      "(d) Filing; Certificate of Service. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court either before service or within a reasonable time thereafter....
      “A certificate of service shall list the names and addresses, including the e-mail addresses of registered electronic-filing-system users, if known, of all attorneys or pro se parties upon whom the paper has been served.”

      . We note that, because an appeal of an adoption judgment must be taken within 14 days of the entry of that judgment, the probate court would have had jurisdiction to alter, amend, or vacate that judgment on its own motion for only 14 days and that the parties involved in the adoption proceeding would have had only 14 days to file postjudgment motions directed to that judgment. See Ex parte A.M.P., 997 So.2d 1008, 1013 n. 3 and accompanying text (Ala.2008) (explaining that the adoption judgment was entered on November 8, 2005, that the postjudgment motion was "timely filed” on November 22, 2005, that the postjudgment motion was denied by operation of law, and that the appeal, which was filed on December 16, 2005, had been timely filed).

      . Based on this court's holding in J.B.M. v. J.C.M., 142 So.3d 676, 681 (Ala.Civ.App.2013), because the judgment in the present case is not an adoption judgment, the appeal from that judgment was not required to be taken within 14 days of the entry of the judgment, and, in fact, the usual time periods applicable to probate-court judgments under the Rules of Civil Procedure apply.

      . We note that the predecessor statute to § 26-10A-30, former Ala.Code 1975, § 26-10—5(b), also provided that grandparent visitation could be established after the entry of an adoption judgment:
      "Although at one time in this state adoption automatically cut off the grandparents' visitation rights, such has not been the case since 1984 when the legislature enacted what is now codified as Ala.Code (1975), § 26-10-5(b) (1986 Repl.Vol). Under this statute, following a final order of adoption, ‘at the discretion of the court, visitation rights for the natural grandparents of the minor grandchildren may be maintained, or allowed upon petition of modification at any time after the final order of adoption is entered.’ ”

        Snipes v. Carr, 526 So.2d 591, 593 (Ala.Civ.App.1988).

      . We recognize that the filing of a complaint is not always sufficient to amount to the commencement of an action. See, e.g., Weaver v. Firestone, 155 So.3d 952, 963 (Ala.2013) (explaining that "the mere filing of a complaint is not a sufficient act in and of itself to commence an action for purposes of satisfying the statute of limitations”). However, because we are not here confronted with an issue regarding the commencement of an action within the applicable limitations period, we are using the term “commencement” to indicate that the paternal grandmother's action of filing the petition instituted a new action seeking independent relief as opposed to merely requesting a ruling on a collateral or incidental matter in pending litigation. See discussion of the term “motion,” supra.