source: Caselaw Access Project

author: PARKER, Justice. STUART, Justice SHAW, Justice LYONS, Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte GREENETRACK, INC. (In re Joe Estano v. Greenetrack, Inc., et al.).
    1061768.
    Supreme Court of Alabama.
    June 12, 2009.

      John M. Bolton III, Patrick L.W. Sef-ton, and Charlanna W. Spencer of Sasser, Bolton & Sefton, P.C., Montgomery; J. Mason Davis, Charles R. Driggars, J. Rushton McClees, and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham; and John Owens of Owens & Millsap, LLP, Tuscaloosa, for petitioner.
    Wilson F. Green and James E. Fleenor, Jr., of Battle, Fleenor, Green, Winn & Clemmer, LLP, Tuscaloosa; and Clatus C. Junkin and Samuel W. Junkin of Junkin Pearson Harrison & Junkin, LLC, Tuscaloosa, for respondent.
    Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and R. Bruce Barze, Jr., of Balch & Bingham LLP, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.
    Matthew C. McDonald and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, LLC, Mobile, for amicus curiae Business Council of Alabama, in support of the petitioner.
   PARKER, Justice.

Greenetrack, Inc., petitions for a writ of mandamus directing the Pickens Circuit Court to vacate its order denying Greene-track’s motion to transfer to the Greene Circuit Court an action filed against it by Joe Estaño. Estaño seeks restitution for moneys he and a putative class of others allegedly lost at the Greenetrack gaming facility. We grant the petition and issue the writ.

Background

Greenetrack operates “both paper and electronic video bingo” at its facility in Greene County for “80 nonprofit organizations licensed by the Sheriff of Greene County.” Amendment No. 743, Ala. Const. 1901 (Local Amendments, Greene County, § 1 (Off.Recomp.)), authorizes nonprofit organizations to operate “bingo games for prizes or money” in Greene County. Estaño filed a complaint in December 2006, alleging that the gaming operation at the Greenetrack facility is illegal because, he argues, it exceeds the authority granted by the local amendment. Section 8-1-150, Ala.Code 1975, provides that a person may recover losses incurred as the result of an illegal gambling operation. Estaño filed the complaint in his county of residence, Pickens County. The complaint stated that venue is proper in Pickens County because Greenetrack, the defendant, does business there and because Es-taño, the plaintiff, resides there.

On February 9, 2007, Greenetrack filed a motion to dismiss Estano’s complaint pursuant to Rules 12(b)(3) and 12(b)(6), Ala. R. Civ. P. Alternatively, Greenetrack moved the trial court to transfer the case to Greene County pursuant to § 6-3-7, Ala.Code 1975, which governs venue as to corporations, or under the doctrine oí forum non conveniens, § 6-3-21.1, Ala.Code 1975. The trial court denied Greene-track’s motion. Greenetrack has petitioned for a writ of mandamus alleging that the trial court exceeded its discretion by refusing the transfer of the case to Greene County.

Analysis

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

In its motion for a change of venue, Greenetrack argued that venue in Pickens County was not proper, and it asked the trial court to transfer the action to Greene County pursuant to § 6-3-7, Ala.Code 1975, or, in the alternative, under § 6-3-21.1, Ala.Code 1975, the forum non conve-niens statute, for the convenience of the parties. Because the writ will issue on the authority of § 6-3-7, we need not reach the issue whether Greene County is a more convenient forum under § 6-3-21.1, Ala.Code 1975.

Section 6-3-7(a), Ala.Code 1975, provides, in part, that “[a]ll civil actions against corporations may be brought ... (3) [i]n the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence .... ” The crux of the issue presented by Greenetrack’s petition is whether Greenetrack “does business by agent” in Pickens County, the county of Estano’s residence. Greenetrack argued in its motion for a change of venue that all Greenetrack’s business functions occur at its facility, which is located in Greene County; that its principal place of business and its offices are located exclusively in Greene County; and that it has not purchased any newspaper, radio, or billboard advertisements in Pickens County.

Estaño argued in his opposition to Greenetrack’s motion for a change of venue that because Greenetrack operated a bus that ran on a regular schedule from its facility in Greene County to Columbus, Mississippi, with scheduled stops in Pick-ens County at Aliceville and Reform, Greenetrack did business by agent in Pick-ens County. The bus provided free transportation to and from Greenetrack. Esta-ño also argued that Greenetrack targets business from Pickens County through “advertisements over television, radio, billboards and other mass media.” In a footnote to his opposition to Greenetrack’s motion, Estaño indicated that Greenetrack also had 10 employees who reside in Pick-ens County who presumably travel to and from Greene County daily.

To support his argument, made in opposition to Greenetrack’s motion, that the operation of the bus service between Greene County, Alabama, and Columbus, Mississippi, with stops in Pickens County, constituted conducting business by agent in Pickens County, Estaño first defined the terminology by quoting from Ex parte Pike Fabrication, 859 So.2d at 1093: “ ‘ “[A] corporation ‘does business’ in a county for the purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created.” ’ ” (Quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d 1356, 1358 (Ala.1993).) In his opposition to Greenetrack’s motion, Estaño then argued:

“The Alabama Supreme Court has repeatedly held that a corporation does business by agent in a County when it performs business functions which relate to its core business. For example, in Ex parte Scott Bridge Co., 834 So.2d 79, 81-82 (Ala.2002), a former employee living in Chambers County filed a retaliatory discharge action in Chambers County against his employer, Scott Bridge, a bridge-building company in Lee County. Scott Bridge moved to dismiss or transfer, claiming that venue was improper under Section 6-3-7(a)(3) because it was not doing business in Chambers County, in that it had never constructed a bridge there. The evidence however showed that Scott Bridge had bought some supplies for bridge-building from vendors in Chambers County. The Supreme Court held that Scott Bridges’s purchase of supplies in Chambers County rendered it to be doing business there.
“Also instructive is Ex parte Perfection Siding, Inc., 882 So.2d 307 (Ala.2003). In that case, Plaintiff (an employee of a siding contractor) sued the subcontractor and general contractor in Hale County, seeking damages resulting from a fall from a roof occurring at a jobsite in Tuscaloosa County. Defendants sought dismissal or transfer, claiming that venue was improper because the subcontractor (Perfection Siding) was not doing business in Hale County. Particularly, Perfection Siding claimed that it had only performed two (2) jobs in Hale County in the year prior to the lawsuit, a minuscule fraction of its approximately 1,000 total jobs performed that year. The Supreme Court held that Perfection Siding was doing business in Hale County because its ‘physical presence [and] performance of services within the county.’ Perfection Siding, 882 So.2d at 311.”

In determining whether venue in Pick-ens County is proper in this case, we must look to whether Greenetrack was, in Pick-ens County, “performfing] some of the business functions for which it was created,” Ex parte Pike Fabrication, 859 So.2d at 1093, as Estaño argued in his opposition to Greenetrack’s motion for a change of venue. When Greenetrack made its prima facie case that it did not do business in Pickens County, the burden then shifted to Estaño to prove that Greenetrack did, in fact, conduct in Pickens County the business for which it was created.

Estaño cited Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), for the holding that Scott Bridge was doing business in Chambers County even though it had not built a bridge there but had merely purchased some supplies there. Estaño argued that this activity by Scott Bridge is analogous to Greenetrack’s running a bus service to pick up potential customers in Pickens County and transport them to Greene County. But this Court in Scott Bridge reasoned:

“ ‘A corporation “does business” in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created. Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984); Ex parte Southtrust Bank of Tuskegee, 469 So.2d 103 (Ala.1985).’ Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356, 1358 (Ala.1993). This Court has made the following distinction between those corporate business functions for which a corporation was created and the exercise of corporate powers incidental to those corporate business functions:
“ ‘It should be noted that not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute. We recognized in International Cotton-Seed Oil Co. [v. Wheelock], 124 Ala. [367,] at 370-371, 27 So. [517,] at 518 [ (1899) ], that in applying the test for doing business “it may not always be easy to distinguish between acts done in the exercise of corporate functions and those done merely within corporate powers.” ’
“Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 790 (Ala.1989).
“While this Court has not been provided with as detailed a description of Scott Bridge’s interactions with its parts supplier in Chambers County as the Court of Civil Appeals was provided with of GTE’s relationship with its parts supplier in Ex parte GTE Automatic Electric, Inc., [448 So.2d 385, 387 (Ala.Civ.App.1984),] the information that this Court does have regarding Scott Bridge’s interactions with its supplier in Chambers County is that Scott Bridge ‘purchased handrail pipe, handrail posts, protection anchors, supports, and shoes which are used in Scott Bridge’s business [of bridge building].’ (Trial court’s order denying the motion for a change of venue.) Scott Bridge could presumably have purchased these materials elsewhere, and thus fulfilled its corporate purpose entirely outside of Chambers County, but spending more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute ‘doing business’ in Chambers County.
“Scott Bridge’s purchases of bridge parts from suppliers in Chambers County can be distinguished from other, more tangential relationships that this Court has deemed insufficient to constitute ‘doing business.’ Specifically, this Court held in Ex parte Parsons & Whittemore Alabama Pine Construction Corp., 658 So.2d 414 (Ala.1995), and in Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984), that retaining the services of an attorney in the forum county on a case-by-case basis did not constitute ‘doing business’ in that county, where the businesses of the companies were construction and real estate financing, respectively. Hiring an attorney was tangential to the companies’ fulfillment of their primary business functions. Scott Bridge’s primary business function of building bridges, however, immediately and directly depends upon the transactions it has with its Chambers County suppliers.”

Ex parte Scott Bridge Co., 834 So.2d at 81-82. Greenetrack’s providing bus service to solicit potential customers is not analogous to the purchase of over $50,000 per year of parts used in a corporation’s primary business. Greenetrack’s principal business, the business for which it was created and authorized, is to run the Greenetrack gaming facility in Greene County, providing gaming services to patrons who come to the facility. Greenetrack’s providing a bus route through Pickens County was “the exercise of corporate powers incidental to [its] corporate business functions”; it was “tangential to the compan[y]’s fulfillment of [its] primary business functions.” 834 So.2d at 81-82.

Less convincing than his reliance on Scott Bridge is Estano’s reliance on Ex parte Perfection Siding, Inc., 882 So.2d 307 (Ala.2003). In that case, venue for an action involving a company formed to install siding was found to be proper in a county in which the company had installed siding on two occasions within the prior year. To be analogous, Greenetrack would have had to have conducted a gaming operation within Pickens County on two occasions within the year before Estano’s action was filed.

Based on the foregoing, we hold that Greenetrack was not “doing business” in Pickens County; consequently, Pickens County was not a proper venue for Esta-no’s action. Because a case may be transferred for reasons of forum non conve-niens only if it was initially filed in a proper venue, we do not reach that aspect of the petition.

Because Greenetrack was not “doing business” in Pickens County, § 6-3-7(c) requires that the action be transferred to Greene County, the county in which Greenetrack does do business.

Conclusion

Greenetrack has demonstrated a clear legal right to the transfer and a clear error on the part of the trial court in refusing the transfer. We, therefore, grant the petition and issue the writ. The trial court is directed to vacate its order denying Greenetrack’s motion for a change of venue and to enter an order transferring the action to Greene County.

PETITION GRANTED; WRIT ISSUED.

WOODALL and BOLIN, JJ., concur.

STUART, SMITH, and SHAW, JJ., concur specially.

COBB, C.J., and LYONS and MURDOCK, JJ., dissent.

STUART, Justice

(concurring specially).

I concur fully in the determination that Greenetrack, Inc., was not doing business by agent in Pickens County so as to make venue in that county proper. I dissented from this Court’s decision in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), and I continue to maintain that that case was erroneously decided. By purchasing more than $50,000 in construction materials in Chambers County, Scott Bridge Company was not doing business by agent in Chambers County. Likewise, by operating a bus that picked up potential patrons in Pickens County and transported them to Greenetrack’s gaming facility in Greene County, Greenetrack was not doing business by agent in Pickens County. Such activities are tangential to the business of each of those corporations.

SHAW, Justice

(concurring specially).

I concur in the main opinion. I write separately only to emphasize that, to me, the dispositive issue in this case is whether the transporting of a handful of patrons by Greenetrack, Inc., from Pickens County to Greenetrack’s facility in Greene County was necessary in order to fulfill Greene-track’s principal corporate function, or, instead, whether it constituted the exercise of a corporate power incidental to its principal corporate function.

Greenetrack operates a gaming facility that, by law, must be operated exclusively in Greene County. In the period between May 2005 and February 2007, Greenetrack sent a bus or a van to various locations surrounding Greene County to pick up and transport patrons to its gaming facility. This service was free, and the riders were not obligated to patronize the Greenetrack facility. According to the materials before this Court, the bus or van had regularly scheduled stops in two communities in Pickens County and, during the period the shuttle service was running, picked up between one and four patrons in that county.

Under Ala.Code 1975, § 6-3-7(a)(3), venue for this action is proper in Pickens County if, at the time of the accrual of the cause of action, Greenetrack did business by agent in Pickens County. As the main opinion notes, whether relief is due to be granted based on this petition hinges on the meaning of the phrase “does business by agent.” In applying this phrase, the courts of this State have looked to whether the corporation performed in the county in question, with some regularity, some of the business functions for which it was created. Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1093 (Ala.2002). A'distinction has consistently been made between those business functions for which a corporation was created and the exercise of corporate powers that are incidental to those business functions. Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002). Not every act performed within the corporate powers of a corporation constitutes “doing business.” Id.

In Scott Bridge, this Court analyzed whether Scott Bridge Company, whose principal business was building bridges, was, for venue purposes, “doing business by agent” in Chambers County, where it purchased approximately $50,000 of supplies and equipment per year. 834 So.2d at 81. In holding that Scott Bridge was doing business in Chambers County, this Court took a broad view of what it meant to be “doing business,” stating:

“Scott Bridge notes that it is in the business of constructing bridges and it argues that because it has not built a bridge in Chambers County, it has not ‘done business by agent’ there. The business of Scott Bridge, however, should not be considered so narrowly. To fulfill its principal corporate function of building bridges, Scott Bridge must purchase parts, tools, and equipment with which to perform that principal corporate function. [The plaintiff] asserts, and Scott Bridge does not refute, that Scott Bridge buys from businesses located in Chambers County supplies that cost in excess of $50,000 a year.”

834 So.2d at 81 (emphasis added). This Court further noted that Scott Bridge “could presumably have purchased these materials elsewhere, and thus fulfilled its corporate purpose entirely outside of Chambers County, but spending more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute ‘doing business’ in Chambers County,” and that “Scott Bridge’s primary business function of building bridges ... immediately and directly depends upon the transactions it has with its Chambers County suppliers.” 834 So.2d at 82 (emphasis added). As I read Scott Bridge, this Court essentially held that even though Scott Bridge had not performed in Chambers County, with some regularity, some of the business functions for which it was created (i.e., building bridges), venue was nonetheless proper in Chambers County because Scott Bridge was “doing business” there by engaging in an activity (i.e., the purchase of bridge-building supplies and equipment) that was absolutely essential to its ability to perform its principal corporate function (i.e., building bridges).

In the present case, I see no indication that Greenetrack ever performed in Pick-ens County, with some regularity, some of the corporate functions for which it was created. Furthermore, application of the analysis in Scott Bridge does not, in my view, dictate that we hold here that venue in Pickens County is proper. Although it is correct that Greenetrack must have patrons come to its facility in Greene County in order for it to perform its principal corporate function of operating a gaming facility, I see nothing to suggest that Greenetrack must itself transport patrons to its facility in order to perform its principal corporate function. A company cannot build bridges without the supplies and equipment necessary for bridge construction. However, a company can operate a stationary gaming facility without providing transportation to the facility. It certainly cannot be said, given the negligible number of persons transported to the Greenetrack facility from Pickens County (one to four), that Greenetrack must transport patrons from Pickens County in order to fulfill its principal corporate function. Although, as this Court noted in Scott Bridge, it may not always be easy to distinguish between acts done in the exercise of corporate functions and those done merely as an exercise of corporate powers incidental to those functions, I am satisfied that Greenetrack’s activities in Pickens County were, at best, the exercise of a corporate power incidental to the performance of its principal corporate function — operating a gaming facility in Greene County. Therefore, I concur to grant the petition and issue the writ.

SMITH, J., concurs.

LYONS, Justice

(dissenting).

I joined the majority opinion in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), authored by Justice See, and I must respectfully dissent from the main opinion’s strained attempt to distinguish it.

Section 6-3-7(a), Ala.Code 1975, provides in part that “[a]ll civil actions against corporations may be brought ... (3) [i]n the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence ....” (Emphasis added.) The defendant in Scott Bridge, a bridge-building company, never built a bridge in Chambers County, just as Greenetrack never conducted gaming operations in Pickens County. Nevertheless, we held, correctly I submit, that venue was proper in Chambers County in Scott Bndge where the defendant, acting through its agent, purchased materials in that county with which to build bridges in another county. On the same rationale, we should hold that venue is proper in Pickens County where Greenetrack sends its agent, operating a bus for the purpose of picking up customers and transporting them to its facility in Greene County. The absence of a gaming operation in Pickens County is analogous to the absence in Scott Bridge of any bridge construction in Chambers County.

The main opinion analogizes Greene-track’s activities in Pickens County to sporadic retention of an attorney on a case-by-case basis, a circumstance this Court has deemed tangential to a corporation’s primary business function. See Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995); Ex parte Real Estate Fin., Inc., 450 So.2d 461 (Ala.1984). Fetching customers is hardly a tangential activity of a business that must turn a profit to keep its doors open. Nor can we point to the high dollar volume of activity in Chambers County in Scott Bñdge as a basis on which to distinguish it without judicially rewriting § 6-3-7 to create a requirement of “doing substantial business by agent.”

Justice Murdock in his dissenting opinion attempts to distinguish Scott Bridge. He states:

“In Ex parte Scott Bridge Co., supra, the sale and purchase of supplies in Chambers County appear to me to have been activities by which the sellers of those supplies did their business. I question whether the fact that Scott Bridge was the purchaser in those transactions meant that it was ‘do[ing] business by agent in [Chambers County]’ within the meaning of § 6-3-7(a)(3), Ala. Code 1975, intended by the legislature. Specifically, I question whether Scott Bridge was doing its business by making the purchases it made.”

25 So.3d at 458.

So, according to Justice Murdock’s dissent, the sellers of supplies to the defendant in Scott Bridge were doing “their” business while the defendant, an entity whose business is acquiring raw materials and making bridges out of those materials, was somehow not doing its business by purchasing such materials through the acts of agents in Chambers County, and this Court should therefore have found venue in Chambers County defective. Suffice it to say that had this rationale been presented during this Court’s consideration of Scott Bridge I would have rejected it and stayed with my vote to deny the petition for mandamus.

I would affirm the trial court’s rejection of the challenge to venue under § 6-3-7 and address the secondary issue of availability of a transfer “for the convenience of parties and witnesses, or in the interest of justice,” under § 6-3-21.1, Ala.Code 1975.

COBB, C.J., concurs.

MURDOCK, Justice

(dissenting).

I respectfully dissent. Although I agree to an extent with Justice Lyons’s reasoning as it relates to the facts of this case, my view of a situation like the one presented in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), does not coincide with his view of that case. I therefore write separately in order to explain my position.

In Ex parte Scott Bndge Co., supra, the sale and purchase of supplies in Chambers County appear to me to have been activities by which the sellers of those supplies did their business. I question whether the fact that Scott Bridge was the purchaser in those transactions meant that it was “do[ing] business by agent in [Chambers County]” within the meaning of § 6-3-7(a)(3), Ala.Code 1975, intended by the legislature. Specifically, I question whether Scott Bridge was doing its business by making the purchases it made.

Meaningful authority exists for drawing the foregoing distinction. For example, in Frees v. Southern Michigan Cold Storage Co., 43 Mich.App. 756, 757, 204 N.W.2d 782, 783 (1972), the court explained: u[T]he defendant’s business is that of storing fruits and vegetables. The farmers and processors bring their fruits and vegetables to defendant’s warehouse in Hart, Oceana County for storage. Defendant’s contacts with Muskegon County are limited to the purchasing of equipment and material for the maintenance of its refrigeration equipment,” except for one customer that the court noted actually brought its produce to Oceana County for storage. (Emphasis added.) Under these facts, the court held that the defendant “was not doing business in Muskegon County by purchasing equipment and materials in Muskegon County to maintain its refrigeration equipment.” 43 Mich.App. at 758, 204 N.W.2d at 783-84.

Consequently, had I been a member of this Court when Scott Bridge was decided, I might well have dissented from the holding that venue in that case was proper in Chambers County.

In contrast, I believe Greenetrack, Inc., was doing its business when it sent its own employee and a bus into Pickens County on a regular basis to transport residents of Pickens County to Greenetrack’s facility so they could serve as customers of its business. True, the plaintiff here utilized his own transportation to travel from his home in Pickens County to Greenetrack’s facility in Greene County. Nonetheless, the purpose of the legislature in enacting the venue statute was to establish, as best it could, where, in all fairness, a corporate defendant should be expected to defend itself if its activities cause harm to another. I do not think that Greenetrack can protest that it is unexpected or unfair that it be held to account in Pickens County under a statute that sets venue in the county of the plaintiffs residence, provided the defendant regularly does business by agent there, for an injury it has caused to a Pickens County resident when it has purposefully and regularly engaged in activity by agent in Pickens County to bring Pickens County residents to its facility to be its customers.

      . The petition does not address the trial court's denial of Greenelrack’s motion to dismiss the complaint.

      . Greenetrack discontinued the bus service to Columbus, Mississippi, including the stops in Aliceville and Reform, in February 2007 because the service was not being used.

      . In response to Greenetrack's motion for a change of venue, Estaño provided affidavits from four persons saying that they had ridden the Greenetrack bus from Pickens County to the Greenetrack facility sometime alter December 2006. Greenetrack responded with affidavits showing that there had been no passenger pick-ups in Pickens County from November 2006 through February 2007 and that the bus route was discontinued in February 2007.
      In his brief to this Court, Estaño challenges the timeliness of the filing of Greenetrack’s affidavits, Estano's brief, at 15 n. 5, but he made no objections to the affidavits in the trial court. “The failure to object to the admission of evidence results in a waiver on appeal of argument on that point.” Ex parte Williamson, 907 So.2d 407, 416 (Ala.2004).

      . I question the conclusion reached in Scott Bridge that a corporation’s mere purchase of materials necessary to fulfill a principal corporate function actually equates, for purposes of § 6-3-7(a)(3), to the performance of the principal corporate function for which the corporation was created; however, this Court is not asked in the instant case to overrule Scott Bridge.

      . See Scott Bridge, 834 So.2d at 81 (“To fulfill its principal corporate function of building bridges, Scott Bridge must purchase parts, tools, and equipment with which to perform that principal corporate function.”).

      . In Hartung v. Central Illinois Public Service Co., 110 Ill.App.3d 816, 66 Ill.Dec. 493, 443 N.E.2d 16 (1982), the court reasoned:
      "The evidence further revealed that defendant consummated commercial transactions with 10 different Madison County residents which totaled nearly $4.4 million in 1979[, including purchases of approximately $'l million of parts and supplies from numerous vendors]. ...
      "Plaintiff maintained that these commercial transactions contributed directly to defendant's production and marketing of its principal consumer product, electricity. Plaintiff further contends that these transactions were done systematically and continuously thus establishing that defendant was 'doing business' within Madison County within the meaning of the venue statute.

      “ .. [I]n order to establish that a defendant is doing business within a county for purposes of venue, quantitatively more business activity within the county must be demonstrated than where the question is whether the defendant has transacted any business within the State for purposes of service of process pursuant to section 17. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought.' [Baltimore & Ohio R.R. v. Mosele,] 67 Ill.2d 321, 329-330[, 10 Ill.Dec. 602, 606], 368 N.E.2d 88, 92 [(1977)].
      "... [W]e believe the evidence does not support the trial court's finding of venue in Madison County in the present case. Defendant's business is the production and marketing of electricity which is not earned on by defendant in Madison County.”

      110 Ill.App.3d at 818-20, 66 Ill.Dec. at 495-96, 443 N.E.2d at 17-19 (emphasis added). Similarly, in Gardner v. International Harvester Co., 113 Ill.2d 535, 541, 101 Ill.Dec. 842, 845, 499 N.E.2d 430, 433 (1986), the Illinois Supreme Court rejected an argument that purchases of materials by a manufacturer constituted doing business for venue purposes: "Nor do we believe that Harvester’s purchases from St. Clair County suppliers show that the company is engaged in business there. Harvester buys the materials for use in its business of designing, manufacturing, and marketing tractors, trucks, and other machines, and the purchases are but a necessary incident of that." See also Saturn Sys., Inc. v. Saturn Corp., 659 F.Supp. 865 (D.Minn.1987); Westinghouse Electric Corp. v. Superior Court, 17 Cal.3d 259, 270, 551 P.2d 847, 855, 131 Cal.Rptr. 231, 239 (1976) (also noting that "[l]he change of venue issue is directed at completely different policy considerations” and that "[i]t is inappropriate to apply a ‘minimum contacts' test to determine whether defendants are doing business” in a given county for venue purposes).

      . This is not to say that, where activity of the nature at issue in Scott Bridge actually gives rise to the claim asserted, venue in the county of that activity would not be appropriate. See § 6 — 3—7(a)(l), Ala.Code 1975. That was not the case in Scott Bridge, however.

      . Certainly, however, if Scott Bridge reflects the law in Alabama, the present case involves activity that, in my view, is no less the doing of business for which the defendant was created than was the activity in Scott Bridge.


author: MOORE, Judge.

text:
    EIGHT MILE AUTO SALES, INC. v. Vincent Leon FAIR.
    2080257.
    Court of Civil Appeals of Alabama.
    June 5, 2009.

      William H. Saliba, Mobile, for appellant.
    Thomas G. Keith and Michael L. Forton of Legal Services Alabama, Inc., Huntsville, for appellee.
   MOORE, Judge.

Eight Mile Auto Sales, Inc. (“Eight Mile”), appeals from a judgment of the Mobile Circuit Court denying its motion to alter, amend, or vacate an order of the Mobile District Court (“the district court”) granting a motion to stay a writ of garnishment sought by Eight Mile against Vincent Leon Fair. We dismiss the appeal.

Eight Mile filed a complaint against Fair in the district court on December 13, 2005, claiming possession from Fair of a vehicle and demanding recovery of the vehicle and damages for Fair’s wrongful detention of the vehicle. Fair was served with the complaint on January 11, 2006, and failed to file an answer. The district court entered a default judgment in favor of Eight Mile on February 24, 2006, in the amount of $8,718.77. Eight Mile instituted a garnishment proceeding to enforce its judgment against Fair, and the district court issued a writ of garnishment on June 28, 2006. A process of garnishment was served on Fair’s employer, the Mobile County Public School System, on July 3, 2006. On July 13, 2006, the Mobile County Public School System answered the process of garnishment and agreed to withhold a portion of Fair’s compensation and to pay the required amount into the district court.

By a letter dated July 24, 2006, Eight Mile informed the district court and the Mobile County Public School System that the vehicle had been recovered, that the value of the vehicle is $2,117.83, and that there should be a credit against the garnishment in that amount. On August 7, 2006,an alias notice of garnishment was sent to Fair.

On October 23, 2006, Fair filed a declaration and claim of exemptions, which stated, in pertinent part:

“MY PROPERTY is being claimed as exempt pursuant to Article X, § 204, Alabama Constitution of 1901; Alabama Code, § 6-10-6 (1975), as amended; Alabama Code, § 6-10-7; and Alabama Code, § 6-10-37 (1975), as amended.
“I hereby declare my WAGES (BIMONTHLY) which represent the excess of my wages otherwise exempt from garnishment under Alabama Code, § 6-10-7 (1975) and/or by virtue of the Federal Consumer Credit Act, 15 U.S.C. § 1673, 29 C.F.R. § 870, and Alabama Code, § 5-19-15 (1975), and being $303.50 paid by MOBILE COUNTY PUBLIC SCHOOL SYSTEM.”

Fair claimed $813.50 as his total amount of exemptions, which included 25% of his disposable wages. Fair also filed a motion to stay the writ of garnishment that had been issued on June 28, 2006, and to stay condemnation of any wages withheld pursuant to the writ.

On October 24, 2006, the district court issued a standing order, which stated that Fair’s “declaration and claim of exemption is granted effective fifteen days after the date it was filed in this action unless [Eight Mile] files an objection before that date” and that,

“[i]f [FairJ’s declaration and claim of exemption includes any wages, the court will allow [Fair] to include wages and other personal property with a total aggregate value of $1000.00, computed by including 100% of [Fair]’s after tax wages for the pay period pursuant to § 6-10-7, Code of Ala.l975[,] and Roberts v. Carraway Methodist Medical Center [, 591 So.2d 870 (Ala.Civ.App.1991) ].”

Eight Mile filed an objection to Fair’s claim of exemptions on October 30, 2006, and an amendment to the objection on October 31, 2006; Eight Mile asserted that the claim of exemptions was invalid in part. On February 5, 2007, Judge George Hardesty recused himself and the case was reassigned to Judge Judson Wells. Judge Wells entered an order on April 30, 2007, granting Fair’s declaration and claim of exemptions, thereby effectively staying the writ of garnishment. On May 2, 2007, Eight Mile filed a “motion to reconsider and to allow oral argument.” On May 7, 2007, the district court entered an order that stated that the “motion to reconsider and allow oral argument filed by Eight Mile Auto Sales, Inc. is hereby granted in part” and that set the motion for a hearing on June 1, 2007. On June 11, 2007, the district court entered an order “reinstating” the writ of garnishment.

On January 22, 2008, Fair filed a second declaration and claim of exemptions, as well as a motion to stay the writ of garnishment and to stay condemnation of any wages withheld pursuant to the writ. Eight Mile filed a contest of Fair’s second claim of exemptions on January 25, 2008. The district court purported to enter an order on February 6, 2008, granting Eight Mile’s objection. After a hearing on March 18, 2008, the district court entered an order granting Fair’s motion to stay the writ of garnishment on April 21, 2008. Eight Mile filed a motion to alter, amend, or vacate the April 21, 2008, order granting the motion to stay the writ of garnishment; that motion was denied on April 23, 2008.

On April 23, 2008, the district court entered an order stating: “The garnishment having been dismissed in this matter, all money which has been collected and which is being held ... is to be returned to [Fair].” Eight Mile filed a notice of appeal to the Mobile Circuit Court (“the circuit court”) on April 30, 2008. On December 5, 2008, the circuit court entered an order stating: “By order of court, [Eight Mile’s] motion to vacate, alter or amend the order issued April 21, 2008, granting motion [for] stay of garnishment, denied. Case dismissed. Costs taxed as paid.” Eight Mile filed a notice of appeal to this court on December 17, 2008.

Although neither party has raised an issue regarding this court’s jurisdiction, we may take notice of the lack of appellate jurisdiction ex mero motu. Kendrick v. Earl’s Inc., 963 So.2d 676, 678 (Ala.Civ.App.2007); see also Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

In Smith v. Smith, 4 So.3d 1178, 1181 (Ala.Civ.App.2008), this court stated:

“Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion that remains pending for 90 days is deemed denied by operation of law, and the trial court loses jurisdiction to rule on that motion. See, e.g., Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000). ‘ “There are only two methods listed in Rule 59.1 for extending the 90-day period: (1) the express consent of all parties to an extension of the 90-day period, [and] (2) the grant of an extension of time by an appellate court.” ’ Davidson, 782 So.2d at 241 (quoting Farmer v. Jackson, 553 So.2d 550, 552 (Ala.1989)). Neither of those methods to extend time were invoked in this case. Moreover, ‘ “the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be ‘inadvertent [or] deliberate.’ ” ’ Ex parte Chamblee, 899 So.2d 244, 247 (Ala.2004) (quoting Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala.1990), quoting in turn Howard v. McMillian, 480 So.2d 1251, 1252 (Ala.Civ.App.1985)).
“In this case, the trial court timely conducted a hearing on the father’s motion; however, the trial court did not enter an order denying the father’s post-judgment motion until 1 day after the 90-day period set forth in Rule 59.1 had expired. We further note that the trial court’s order entered on September 4, 2007, did not toll the running of the 90-day period, nor was it a ‘ruling’ as contemplated by Rule 59.1. As stated in Ex parte Johnson Land Co., ‘ “the ruling that Rule 59.1 requires to be entered within ninety days is one which (1) denies the motion, or (2) grants the motion.” ’ 561 So.2d at 508 (quoting French v. Steel, Inc., 445 So.2d 561, 563 (Ala.1984)). Thus, the trial court’s order ostensibly ‘granting’ the father’s post-judgment motion ‘in part’ but actually only setting the postjudgment motion for a hearing was not a ruling on the merits.”

Rule 59.1(dc), Ala. R. Civ. P., states that Rule 59.1 applies in the district courts, except that the period of 90 days is reduced to 14 days.

In the present case, pursuant to Rule 59.1(de), the district court had 14 days to rule on Eight Mile’s May 2, 2007, “motion to reconsider and to allow oral argument.” On May 7, 2007, the district court entered an order stating that that motion was “granted in part” and setting the motion for a hearing on June 1, 2007. Like in Smith, however, the district court’s order merely set Eight Mile’s motion for a hearing; it did not grant any substantive relief or rule on the merits of the motion. Thus, Eight Mile’s motion was deemed denied by operation of law on May 16, 2007. Because the district court was without jurisdiction to rule on Eight Mile’s motion, the district court’s June 11, 2007, order, purporting to “reinstate” the writ of garnishment was a nullity. The district court’s April 30, 2007, order granting Fair’s declaration and claim of exemptions was therefore the final judgment in the case. Thus, in order to be timely, Eight Mile’s notice of appeal to the circuit court would have had to have been filed on or before May 30, 2007, i.e., 14 days after its postjudgment motion had been deemed denied by operation of law on May 16, 2007.

Eight Mile argues that because the district court’s April 30, 2007, order granting Fair’s declaration and claim of exemptions was entered without a hearing, in violation of Rule 64B, Ala. R. Civ. P., that order was not final and, thus, the district court maintained jurisdiction to enter its June 11, 2007, order. We disagree. Although Rule 64B does provide for a hearing, we do not agree with Eight Mile that the district court’s failure to conduct a hearing stripped the district court of jurisdiction to enter a final order. Rather, we conclude that the failure to hold a hearing was error that could have been raised in a timely appeal.

Rule 59(g), Ala. R. Civ. P., provides that postjudgment motions “shall not be ruled upon until the parties have had opportunity to be heard thereon.” If, however, no hearing is held and this court determines on appeal that there is no probable merit to such a motion, “it may affirm based on the harmless error rule.” Palmer v. Hall, 680 So.2d 307, 307-08 (Ala.Civ.App.1996). Thus, the failure to hold a hearing under Rule 59(g) does not prevent a trial court from entering a final judgment. Likewise, the failure to conduct a hearing as contemplated under Rule 64B is not a jurisdictional barrier that deprives the court of jurisdiction to enter a final judgment, but it is error that may be raised in a timely appeal. Because Eight Mile failed to timely appeal the district court’s judgment, we conclude that neither the circuit court’s nor this court’s jurisdiction was properly invoked. Accordingly, all judgments and proceedings in both the district court and the circuit court following the denial of Eight Mile’s post-judgment motion on May 16, 2007, were done without jurisdiction and are void. A void judgment will not support an appeal. See Hollinger v. Wells, 3 So.3d 216, 221 (Ala.Civ.App.2008). We, therefore, dismiss Eight Mile’s appeal; however, in doing so, we instruct the circuit court to dismiss Eight Mile’s appeal to that court for lack of jurisdiction and to vacate all orders.and judgments entered in that appeal. The circuit court shall further direct the district court to vacate all orders and judgments entered by the district court after May 16, 2007.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

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

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

      . Rule 64B states, in pertinent part:
      "The plaintiff ... may contest such claim [of exemption] as in contest after declaration filed, and such contest shall be tried and determined as other contests of claims of exemption are tried and determined. ... If a timely contest of a claim of exemption is filed, the hearing to determine said contest must be initially scheduled within seven (7) calendar days ... after said contest is filed."


text:
    MATTHEW’S MASONRY COMPANY v. Edward ALDRIDGE, Jr.
    2080361.
    Court of Civil Appeals of Alabama.
    June 5, 2009.
    Charles H. Clark, Jr., David M. Fleming, and Lauren E. Davis of Huie, Fer-nambucq & Stewart LLP, Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   MOORE, Judge.

In Matthew’s Masonry Co. v. Aldridge, 5 So.3d 621 (Ala.Civ.App.2008), this court reversed a judgment entered by the Eto-wah Circuit Court (“the trial court”) and remanded the case for the trial court to enter findings of fact and conclusions of law regarding the effect of a settlement agreement approved by the trial court on December 22, 2000, on the right of Edward Aldridge, Jr. (“the employee”), to recover medical benefits from Matthew’s Masonry Company (“the employer”) for a right-knee condition. On December 10, 2008, the trial court complied with our mandate by entering a new judgment containing additional findings of fact and conclusions of law. In that judgment, the trial court concluded that the employee had not released his right to medical treatment for the right-knee condition. The employer timely appealed from that judgment on January 20, 2009.

Facts

In November 1998, the employee filed a petition seeking workers’ compensation benefits on account of injuries he had received to his cervical and lumbar spine allegedly resulting from an accident arising out of and in the course of his employment with the employer on June 9, 1998. On December 7,1999, the employee underwent a functional-capacity evaluation (“FCE”) as part of his treatment for the 1998 injuries. On May 5, 2000, the employee moved to amend his complaint to allege that he had injured his left lower extremity during the FCE. Specifically, the employee claimed that, due to weakness in his lower back, he had had to alter his gait and to modify his squat movements and that those modifications had caused him to injure his left lower extremity. The employer filed an objection to the motion to amend on May 16, 2000; the trial court never ruled on the motion to amend or on the objection filed by the employer.

On December 22, 2000, the parties jointly petitioned the trial court to approve a settlement to which they had agreed. In that petition, the parties asserted that the employee had sustained an injury to his back due to a June 9, 1998, accident arising out of and in the course of his employment with the employer. Following a recitation of the benefits that had been paid to the employee on account of that injury, the petition states, in pertinent part:

“The parties have made known to the court that they have reached a compromise settlement agreement, subject to the approval of this Court, for the sum of Eighty Thousand and No/100 ($80,-000.00) Dollars as a full and complete settlement of any and all claims for workmen’s compensation benefits under the Workmen’s Compensation Act of Alabama, or otherwise, including temporary total disability, permanent partial disability benefits and vocational rehabilitation benefits. The [employee’s] rights to future medical benefits for treatment of his back injury are hereby preserved and said benefits shall remain open. As further consideration for this settlement the [employee] waives any claim to future medical treatment for psychiatric disorders and also waives any claim for medical expenses in connection with his left knee and his right knee. The employer is hereby discharged for any further liability for psychiatric medical expenses and medical expenses incurred by the [employee] for treatment of either of his knees.”

The trial court approved the settlement, adopting the petition as the final judgment and ordering the parties to comply with that judgment.

On October 31, 2007, the employee filed a motion to compel the employer to authorize and pay for medical treatment relating to his right knee. The employee alleged that he had developed “problems to his knees, all as a proximate result of the injury to his back,” as confirmed by the records of two authorized treating physicians attached to the motion. One doctor opined that the right-knee symptoms experienced by the employee “can be, or are, the result of his back problems, which are work related. The altered gait associated with the back can certainly have caused the problem with the [employee’s] knee.” The other doctor essentially deferred to the first doctor’s opinion regarding the etiology of the employee’s right-knee symptoms and noted: “I can state that the low back pain does frequently result in an altered/antalgic gait which would put atypical stresses on the lower extremity joints.” The employee alleged that the employer had refused to pay for the treatment for his right-knee condition despite the terms of the settlement agreement requiring the employer to provide future medical treatment for the employee’s back injury. The employer responded on November 3, 2007, that the employee had waived his claim for medical benefits relating to his knees in the settlement agreement, which agreement had become part of the trial court’s judgment.

On December 14, 2007, the trial court conducted a trial regarding the controversy. At that trial, the employee introduced into evidence correspondence exchanged between the parties’ attorneys in May and June 2000. In that correspondence, the attorney for the employer sought information regarding the injury to the employee’s left lower extremity, as alleged in the amended complaint, and indicated that the employer would not provide medical treatment for that injury until it received sufficient information to change its decision. The attorney for the employee responded by quoting the medical records from five days after the FCE that documented the employee’s complaints of left-leg pain. The attorney for the employee explained that, due to problems with his right leg associated with the 1998 back injury, the employee had relied more heavily on his left leg during the FCE and had hurt it.

The employee testified that, before the settlement, he had experienced problems with his right leg, including his right knee, from sciatica. The employee basically testified that, because of his right-leg problems, he had relied almost exclusively on his left leg to perform squatting and lifting exercises during the FCE. The employee stated that, during those exercises, he had strained his left knee, that he had complained of the left-knee strain, and that those complaints had been documented in the medical records. The employee further testified that, at some point after the settlement, he developed problems with both feet. According to the employee, the authorized treating physicians determined that those problems had resulted directly from an altered gait brought on by the employee’s 1998 back injury. The employer covered the costs of two surgeries to treat the employee’s foot problems.

The trial court entered a judgment on January 11, 2008, finding that the employee had injured his right knee as a direct and natural consequence of his compensa-ble 1998 back injury and ordering the employer to cover the costs of the medical treatment for the right-knee condition. Aldridge, 5 So.3d at 621. However, because the trial court had not addressed the effect of the 2000 settlement on the employee’s right to receive medical benefits, this court reversed that judgment and remanded the case for the trial court to make additional findings of fact and conclusions of law. Id.

On remand, the trial court held another hearing at which it heard only additional arguments from counsel. Following those arguments, the trial court entered a new judgment on December 10, 2008, finding that the 2000 settlement agreement contained a “latent ambiguity” subject to clarification by extrinsic evidence. See Mass Appraisal Servs., Inc. v. Carmichael, 404 So.2d 666, 672 (Ala.1981). The trial court concluded from the terms of the settlement and the evidence presented at the trial that the parties had intended that the employer would cover all medical expenses relating to conditions directly traceable to the back injury, but that the employer would not cover medical expenses relating to knee conditions caused by the strain or injury the employee had received while undergoing the FCE. Convinced that the 2007 right-knee condition related solely to the back injury and not to the FCE accident, the trial court found the employer liable for the expenses for the treatment of the employee’s right-knee condition.

Issues

On appeal, the employer argues that the employee expressly and unambiguously waived and released any claim for future medical treatment related to his knees in the 2000 settlement agreement. The employer maintains that the trial court erred in finding the settlement agreement to be ambiguous and in failing to enforce its plain language. The employer further argues that, by adopting the terms of the settlement agreement and entering a judgment ordering the parties to comply with that agreement, the trial court effectively adjudicated the issue of the employer’s liability for future medical treatment for the employee’s knees. The employer contends that the doctrines of res judicata, collateral estoppel, and the law of the case preclude the employee from now asserting any right to medical benefits for his right-knee condition.

Standard of Review

This case involves undisputed facts. This court must therefore determine whether the trial court correctly applied the law to those undisputed facts. By statute, this court l'eviews such legal issues without a presumption of correctness. See Ala.Code 1975, § 25-5-81(e)(l). This court reviews the application of the law to undisputed facts de novo. See Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741, 743 (Ala.Civ.App.2002).

Analysis

In the absence of fraud, a workers’ compensation settlement supported by valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties judged by the court from what appears within the four corners of the instrument itself, and parol evidence is not admissible to impeach or vary its terms. See Johnson v. Asphalt Hot Mix, Inc., 565 So.2d 219, 220 (Ala.1990); and Finley v. Liberty Mut. Ins. Co., 456 So.2d 1065, 1067 (Ala.1984). In this case, the clear and unambiguous terms of the settlement agreement indicate that the employee, in exchange for the receipt of $80,000 and the reservation of his right to receive future medical treatment for his back injury, waived “any claim for medical expenses in connection with his left knee and his right knee” and discharged the employer from liability for “medical expenses incurred by the [employee] for treatment of either of his knees.” According to the plain language of the settlement agreement, the employee did not retain any right to future medical treatment for knee conditions relating to his back injury.

The Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq., specifically provides that parties may settle controversies regarding medical payments between themselves. See Ala. Code 1975, § 25-5-56. The parties settled the matter of the employee’s entitlement to future medical benefits for his knees, and the trial court approved that settlement on May 22, 2000, finding that the settlement served the best interests of the employee. See Shaw v. Dover Furniture Mfg. Co., 700 So.2d 1382, 1385 (Ala.Civ.App.1997) (generally requiring circuit courts to expressly find that a settlement in a workers’ compensation action is in the best interests of the employee). Nevertheless, the trial court refused to enforce the terms of the settlement agreement based on the existence of what it termed a latent ambiguity.

“ ‘... It is said that “a latent ambiguity arises when the writing on its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain,” 32 C.J.S., Evidence, § 961b, p. 915; “that is, an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing,” 20 Am. Jur., Evidence, § 1157, p. 1010. And it is well established that parol or other extrinsic evidence is admissible to explain or clarify a latent ambiguity.’ ”

Mass Appraisal Servs., Inc. v. Carmichael, 404 So.2d at 672 (quoting Gibson v. Anderson, 265 Ala. 553, 555, 92 So.2d 692, 694 (1957)). Evidently, the trial court determined that factors extrinsic to the settlement agreement made uncertain the meaning of its otherwise clear and unambiguous terms. We disagree.

Whether a settlement agreement is ambiguous is a question of law for the trial court. Springer v. Damrich, 993 So.2d 481, 488 (Ala.Civ.App.2008). See also R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000). The extrinsic evidence introduced by the employee only reinforces the meaning of the settlement agreement. It does not render it unclear or ambiguous.

The employee testified that before the parties entered into the settlement agreement he had been experiencing right-knee and left-knee pain. He attributed his right-knee pain solely to sciatica and to his altered gait from his back injury. In his amended complaint filed in May 2000, and in the letter his attorney sent to the attorney for the employer in June 2000, the employee attributed his left-knee pain to his having overcompensated with his left lower extremity during the FCE because of weakness and other symptoms in his right leg caused by his back injury. In other words, by June 2000, the employee had clearly notified the employer that he claimed both his right-knee problem and his left-knee problem to be direct and natural consequences of his 1998 back injury. See Ex parte Pike County Comm’n, 740 So.2d 1080, 1084 (Ala.1999) (quoting 1 Arthur Larson & Lex K Larson, Larson’s Workers’ Compensation Law § 13.00 (1998)) (“When determining whether a successive injury is compensable, the general rule is that ‘[wjhen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.’ ”).

In waiving his right to medical benefits for his knees, the employee obviously understood that he was waiving a claim for injuries he believed and maintained were compensable solely because of their relationship to his back injury. It is apparent from the terms of the settlement agreement that the parties intended that the employee would not receive medical treatment for his knees regardless of any connection to the back injury. In 2007, the employee raised exactly the same contention as he did in 2000, by asserting that his 1998 back injury had caused him to alter his gait resulting in an injury to his right knee. As both the explicit terms of the settlement agreement and the extrinsic evidence prove, that claim had already been resolved by settlement in 2000.

The fact that the parties interpreted the settlement agreement as requiring the employer to cover the foot surgeries does not affect our holding. The settlement agreement specifically addresses coverage of any knee problems by declaring that the employer shall have no liability for any benefits relating to the employee’s knees. The settlement agreement does not specifically address any other part of the body injured as a direct and natural consequence of the employee’s 1998 back injury. Other parts of the body, such as the feet, fall within the general terms of the settlement agreement, which require the employer to keep open medical benefits for conditions relating to the employee’s 1998 back injury. By paying for the foot surgeries, the employer merely complied with the general provision, but by doing so it did not violate, or even call into question the meaning of, the specific waiver relating to the knees. See, generally, Ward v. Check Into Cash of Alabama, LLC, 981 So.2d 434, 438 (Ala.Civ.App.2007) (holding that, when interpreting contracts, a specific provision prevails over a general provision relating to the same subject matter).

The trial court concluded that the parties had intended only that the employee waived claims relating to treatment for the injuries he had received in the FCE accident. The employee testified that he had injured only his left knee in that accident. Yet the settlement agreement specifies that the employee waived his claim for medical benefits for his right knee as well. The inclusion of the right knee in the waiver provision belies any contention that the parties intended to limit the waiver solely to injuries the employee received in the FCE accident just as clearly as the failure of the parties to use any limiting language to that effect. Had the parties intended that the waiver would apply only to injuries received in the FCE accident, the settlement agreement would read much differently. As written, the document does not mention the FCE accident and it certainly does not limit the waiver to injuries caused by that accident. A court cannot refine away the terms of a contract that are expressed with sufficient clarity to convey the intent and meaning of the parties. See Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala.1982). A court cannot, in the guise of contract construction, create a new contract for the parties by ignoring the express provisions of the original contract. See Gardner v. Cumis Ins. Soc’y, Inc., 582 So.2d 1094, 1095-1096 (Ala.1991).

None of the extrinsic facts considered by the trial court make the meaning of the settlement agreement uncertain. To the contrary, those facts do not reveal a latent ambiguity, but, instead, only more fully explicate the terms of the settlement agreement. Based both on the unambiguous terms of the settlement agreement and the extrinsic facts in evidence, the parties plainly intended that, in exchange for the receipt of $80,000 and the retention of his right to future medical benefits relating to the back injury, the employee would, among other things, specifically waive his right to future medical benefits connected to treatment of his knees. The treatment the employee sought in 2007 clearly is “connected” to his right knee as that term is ordinarily understood. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998) (“Words used in a contract will be given their ordinary, plain, or natural meaning where nothing appears to show they were used in a different sense or that they have a technical meaning”)- The settlement agreement clearly and unambiguously absolves the employer of any liability for medical expenses relating to that treatment. Therefore, the trial court erred in ordering the employer to cover those expenses.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. Based on our disposition, we pretermit any discussion of the remainder of the arguments raised by the employer.

REVERSED AND REMANDED.

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

      . Although the employee claimed injuries to both knees, the medical records refer to only the right knee.

      . “Connected” is defined as “related: having something in common.” On the date this opinion was released, this definition could be found at http:llencarla.msn.com/dwlionmyJ

        connected.html (as visited on June 5, 2009; a copy of the Web page containing this definition is available in the case file of the clerk of the Alabama Court of Civil Appeals).

      . The employee argues that this court should liberally construe the settlement agreement against the employer in order to preserve the employee’s right to medical benefits. However, the employee does not cite any cases in which the court applied the liberal-construction rule to a settlement agreement. See Rule 28(a)(10), Ala. R.App. P. The lone case cited by the employee notes that the Act should be liberally construed to accomplish its beneficent purpose. See Oberkor v. Central Alabama Home Health Care Servs., Inc., 716 So.2d 1267, 1270 (Ala.Civ.App.1998). In the present case, we are not asked to construe any provision of the Act itself, to which the liberal-construction rule would apply, see Ala. Acts 1992, Act No. 92-537, § 1. Hence, the liberal-construction rule does not apply to this case.


text:
    Marcy Hamlet BAKER v. Anthony Jacob BAKER.
    2080047.
    Court of Civil Appeals of Alabama.
    June 5, 2009.

      Connie Cooper, Phenix City, for appellant.
   MOORE, Judge.

Marcy Hamlet Baker (“the mother”) appeals from a judgment of the Russell Circuit Court transferring physical custody of her two minor children, Sylvan and Con-nor, to Anthony Jacob Baker (“the father”). We dismiss the appeal.

The mother and the father were divorced by a judgment of the Russell Circuit Court (“the trial court”) in 1996 when Sylvan, the daughter, was three years old, and Connor, the son, was not quite two years old. The judgment incorporated an agreement entered between the parties, pursuant to which the parties, who were then residing in Valley, Alabama, were to share “joint custody” of the children with the mother to have “primary care, custody and control.” The father received specified visitation privileges, including the right to have the children visit with him every other weekend, one week around Christmastime, two weeks in the summer, and at “such other times as the parties may agree.” The parties further agreed that, due to financial concerns, the father would pay $400 per month in child support, which was below the amount established by the Alabama Child-Support Guidelines. See Rule 32, Ala. R. Jud. Admin.

After the divorce, the parties and the children moved to west Georgia relatively near one another. The children resided with the mother, but they enjoyed frequent visitation with the father. In April 2005, the mother married Andres “Mike” Grass, a German citizen. Not long after the mother’s remarriage, the mother and the father agreed that the children would spend the 2005-2006 school year with the mother and Mike in Ireland, where Mike had lined up a hotel-management job, but that the mother and the children would then return to the United States in approximately June 2006. In March 2006, the mother informed the father that she planned on staying in Ireland longer than she had initially intended and that she wanted the children to remain in Ireland with her after they spent part of the summer of 2006 with the father. The father objected to the children remaining in Ireland, and he told the mother that when the children returned to the United States he planned to keep them in this country.

On May 17, 2006, the mother filed in the trial court a petition for a rule nisi and for modification of the divorce judgment. In that petition, the mother sought various forms of relief, including that she be awarded legal and physical custody of the children, that the father’s visitation schedule be modified, and that the father be required to pay child support in accordance with the Rule 32 child-support guidelines. The mother also filed a request for a pendente lite order requiring the father to return the children to her in Ireland at the end of their summer visitation. The mother served her petition on the father by certified mail at his address in LaGrange, Georgia. On June 14, 2006, the father filed an objection and a counter-petition in which he asserted that the mother had violated their agreement to return the children to the United States after June 2006, averred that the mother was not properly caring for the children in Ireland, and impliedly requested that custody of the children be transferred to him.

On July 10 and 12, 2006, the trial court conducted hearings on the mother’s request for pendente lite relief at which it received the testimony of the mother, the father, and the children. After those hearings, the trial court entered a pendente lite order on July 27, 2006. Although the order does not appear in the record on appeal, it is apparent from the documents and testimony that are included in the record that the trial court allowed the mother to retain physical custody of the children in Ireland subject to the father’s being allowed to visit with the children both in Ireland and in the United States. In April 2007, the parties met for another court hearing, at which time they reached a tentative agreement that the mother would be awarded physical custody of the children subject to the father’s right to visitation. However, the parties never finalized that agreement, and the case was set for trial on July 9, 2008. Following the trial, the trial court entered a judgment on July 29, 2008, awarding the father physical custody of the children subject to visitation by the mother. The mother appealed.

On appeal, the mother argues that the trial court erred in transferring physical custody of the children to the father because, she says, the father failed to present sufficient evidence to meet the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). However, we cannot reach that issue because we conclude that the trial court did not have subject-matter jurisdiction over the custody-modification petitions.

Although neither party has raised an issue regarding this court’s jurisdiction, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The jurisdiction of an Alabama court to modify a prior custody determination depends on the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), Ala.Code 1975, § 30-3B-101 et seq. The UCCJEA provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
“(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.”

Ala.Code 1975, § 30-3B-202.

In this case, the trial court made the initial custody determination in 1996 when the parties and the children resided in Valley. However, the evidence presented at the pendente lite hearings established that, after the divorce, the father moved to LaGrange, Georgia, and the mother and the children moved to Westpoint, Georgia. Once it was shown that the custodial parent, the noncustodial parent, and the children had moved from Alabama, pursuant to § 30-3B-202(a)(2), the trial court should have determined that it had lost continuing, exclusive jurisdiction to modify its 1996 custody determination.

Once a court loses continuing, exclusive jurisdiction to modify a custody determination, § 30-3B-202(b) provides that a trial court “may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.” Section 30-3B-201 provides:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala.Code 1975,] and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

The evidence shows that, on the date the mother filed her petition in May 2006, Alabama was not the children’s “home state” and that Alabama had not been their home state for any part of the six months before the commencement of the modification action. Hence, § 30-3B-201(a)(1) does not apply. Section 30-3B-201(a)(2) also does not apply. At the time the mother filed her modification petition, the children had not resided in any state of the United States for over six months. Therefore, no state had jurisdiction to modify custody under § 30-3B-201(a)(l). Arguably, the father had a significant connection with Alabama because, in May 2006, he was building a house in Alabama in which he planned to reside; likewise, the children arguably had a significant connection with this state because they would be expected to visit the father at that house once it was completed. However, neither party asserted that, at the time of the commencement of the modification action, there was substantial evidence available in this state concerning the “care, protection, training, and personal relationships” of the children. At the pendente lite hearings, held within eight weeks of the filing of the mother’s petition, neither party presented the testimony of a witness residing in Alabama nor did either of them introduce into evidence any document produced in Alabama.

Section 30-3B-201(a)(3) does not apply because neither the mother nor the father filed a modification petition with any other court that would have jurisdiction under § 30-3B-201(a)(l) or (2) and, obviously, no other court had deferred to the trial court as a more appropriate forum. Finally, § 30-3B-201(a)(4) does not apply because a Georgia court would have had jurisdiction to modify custody under § 30-3B-201(a)(2). At the time the modification petition was filed, the father was living and working in Georgia, and, thus, he had a significant connection with that state. The children were planning on visiting the father at his home in Georgia in the summer of 2006, thus they maintained a significant connection with that state. Also, substantial evidence, namely the testimony of the father, was available in Georgia regarding the care, protection, training, and personal relationships of the children.

Because the trial court did not have continuing, exclusive jurisdiction under § 30-3B-202, and because the trial court did not have jurisdiction under § 30-3B-201, the trial court did not have the authority to enter any judgment modifying the 1996 custody determination. Therefore, the judgment the trial court entered on July 29, 2008, is void for lack of subject-matter jurisdiction.

This court has a duty to dismiss an appeal that is taken from a void judgment because a void judgment will not support an appeal. See Hayes v. Hayes, 16 So.3d 117 (Ala.Civ.App.2009).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . The father moved back to Alabama not long after the pendente lite hearings. The Official Comment to § 30-3B-202 states: "Jurisdiction attaches at the commencement of a proceeding.” See also Peterson v. Peterson, 965 So.2d 1096, 1099 (Ala.Civ.App.2007) (citing C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)) ("Continuing, exclusive jurisdiction under § 30-3B-202(a) is determined on the basis of the circumstances existing on the date a petition seeking a modification of an Alabama court’s prior custody determination is filed.”). The Comment further states that ”[e]xclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the state, the non-custodial parent returns.” Hence, the fact that the father had resumed residing in Alabama by the time of the trial does not alter the conclusion that the trial court had lost continuing, exclusive jurisdiction.

      . Section 30-3B-l 02(7) defines “home state" as "[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” The children did not reside in Alabama during that period.

      . The father had been working on the house for over five years at the time of the pendente lite hearings. He testified that he expected to complete construction of the house in the fall of 2006 but that, in the event he did not complete construction as he expected, he planned to remain residing in LaGrange.

      . The father testified that the children had, in fact, stayed in the house on occasion while it was under construction.

      .The father testified on July 10, 2006, that he had extended family in the Phenix City/Valley area that was willing to help him out when he moved back to Valley. Several members of the father's extended family and some of his friends attended the pendente lite hearing on July 10, 2006, but the father did not call any of them as witnesses. Furthermore, the father did not indicate in any fashion that his relatives and friends who resided in Alabama had any relevant information regarding the care, protection, or training of the children. Furthermore, neither the father nor any other witness testified regarding any personal relationship between the children and the father's Alabama relatives and friends.


author: THOMPSON, Presiding Judge.

text:
    Jeremy Ray CUNNINGHAM v. Roxanne Rodarte EDWARDS.
    2071214.
    Court of Civil Appeals of Alabama.
    June 5, 2009.

      David K. Hogg of Hogg & North, LLC, Dothan, for appellant.
    J. Christopher Capps of Capps & Associates, P.C., Dothan, for appellee.
   THOMPSON, Presiding Judge.

Jeremy Ray Cunningham (“the father”) appeals from the trial court’s order denying his motion to alter, amend, or vacate the final judgment entered in this case. For the reasons stated herein, we reverse and remand.

The Henry Circuit Court divorced the father and Roxanne Rodarte Edwards (“the mother”) in an earlier judgment that, among other things, awarded the father custody of the parties’ children and provided that the mother was to pay child support to the father. In this action, the father petitioned the trial court for an increase in the mother’s child-support obligation; the mother filed a counterpetition in which she sought custody of the parties’ children.

After an ore tenus hearing, the trial court suspended the mother’s child-support obligation because it found that she was “at least presently disabled.” The trial court allowed the father to claim the parties’ children as dependents for tax purposes. The parties were to share equally the insurance and medical expenses for the children. The mother was also ordered to provide the father with a copy of an insurance card for the children. In addition, the trial court denied the mother’s request for custody and established a visitation schedule for the mother. In the judgment, the trial court conditioned the father’s continuing custody and the mother’s visitation upon each not allowing the children to have contact with a certain cousin. The trial court also admonished the parties to stop discussing issues of the divorce and making derogatory comments about each other in front of the children. The trial court specifically noted “for future reference that both par-, ties have subjected the minor children to excessive litigation, personal involvement in the parents’ divorce and consultations with numerous counselors.” Finally, the trial court ordered the father to pay $1,500 toward the mother’s attorney fee and ordered the parties to each pay half the guardian ad litem fee. The father moved to alter, amend, or vacate the judgment, arguing that the trial court had improperly-ordered him to pay half the guardian ad litem fee because, he says, the guardian ad litem acted as an advocate on behalf of the mother. He also asserted that the trial court had improperly ordered him to pay $1,500 toward the mother’s attorney fee. The trial court denied the motion without a hearing.

On appeal, the father contends that the trial court erred in denying his motion to alter, amend, or vacate the final judgment without affording him a hearing as required by Rule 59(g), Ala. R. Civ. P. Rule 59(g) provides that posttrial motions “remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.” The failure to hold a hearing on a posttrial motion is not always reversible error, however. Our supreme court has stated:

“ ‘[I]f a party requests a hearing on its motion for a new trial, the court must grant the request.’ Ex parte Evans, 875 So.2d 297, 299-300 (Ala.2003) (citing Rule 59(g), Ala. R. Civ. P., and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989)). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. ‘This Court has established, however, that the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is ... no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala.1995) (citing Greene v. Thompson, 554 So.2d 376 (Ala.1989)).”

Chism v. Jefferson County, 954 So.2d 1058, 1086 (Ala.2006).

In his postjudgment motion, and again on appeal, the father challenged the reasonableness and necessity of the guardian ad litem fee. In its judgment, the trial court considered that fee to be an “additional court cost” and ordered the parties to pay equal amounts toward the fee. The record shows that the mother requested the appointment of a guardian ad litem in the instant case and that the father opposed the appointment. Furthermore, we note that the final judgment was entered on July 9, 2008, and the guardian ad litem did not submit her fees until August 12, 2008. In Ex parte R.D.N., 918 So.2d 100, 105 (Ala.2005), our supreme court held that the father “was entitled to an eviden-tiary hearing for the purpose of determining a reasonable fee for the guardian ad litem.” In this case, in denying the father’s motion to alter, amend, or vacate the judgment without first holding a hearing on the issues raised in the motion, the trial court prevented the father from contesting the reasonableness of the fee of the guardian ad litem. Based upon the record before us, we cannot say that the father’s challenge to the necessity and reasonableness of the fee is without merit. Therefore, the trial court improperly denied a hearing on the father’s motion to alter, amend, or vacate.

The father also asserted in his postjudgment motion, and again on appeal, that the trial court had improperly ordered him to pay a portion of the mother’s attorney fee. An award of an attorney fee in a domestic-relations case rests within the sound discretion of the trial court. Thompson v. Thompson, 650 So.2d 928, 931 (Ala.Civ.App.1994).

dactors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).’
“Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996).”

Springer v. Damrich, 993 So.2d 481, 489-90 (Ala.Civ.App.2008).

In this case, the record shows that, during the course of the litigation between the parties after the initial judgment of divorce was entered, the father’s request for a waiver of payment of docket fees was granted based upon a finding of substantial financial hardship. He contends that he does not have the financial ability to pay the mother’s attorney fee. In the present action, the father failed to prevail on his petition seeking additional child support from the mother. By the same token, the mother failed to prevail on her coun-terpetition for custody of the children. The trial court chastised both parties for continuing to make derogatory comments about each other to their children and for subjecting the children to continuous involvement in the parties’ litigation of this matter, including requiring them to see counselors for purposes of obtaining evidence against one another in court. It appears to this court that both parties share the blame for the continuing litigation and its associated costs. Based on the record before us, therefore, we cannot say that the father’s challenge to that portion of the judgment ordering him to pay $1,500 toward the mother’s attorney fee is so lacking in merit that a hearing on his postjudgment motion was not necessary.

Accordingly, we conclude that the trial court erred to reversal in denying the father’s motion to alter, amend, or vacate the judgment without first holding a hearing, at least as to the issues brought to this court’s attention by the father on appeal, i.e., the award of an attorney fee to the mother and the necessity and reasonableness of the guardian ad litem fee. In holding as we do, we do not reach the question whether the trial court exceeded its discretion in ordering the father to pay the challenged fees.

For the foregoing reasons, the order of the trial court denying the father’s motion to alter, amend, or vacate the judgment without first holding a hearing is reversed, and this cause is remanded for further proceedings consistent with this opinion.

The father’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

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


author: THOMAS, Judge.

text:
    Donnie LANEY v. John Edward GARMON.
    2071233.
    Court of Civil Appeals of Alabama.
    June 5, 2009.

      Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellant.
    W.N. Watson of Watson & Gillis, P.C., Fort Payne, for appellee.
   THOMAS, Judge.

Donnie Laney appeals from a judgment of the Cherokee Circuit Court in favor of John Edward Garmon on Laney’s complaint seeking to enjoin Garmon from blocking access to a roadway. We dismiss the appeal for lack of jurisdiction.

Background

Laney and Garmon own adjacent parcels of real property. A roadway runs from a public highway to a point on Garmon’s property, and, for most of its length', the roadway sits on Garmon’s property and its edge forms the boundary between the two properties. In 2000, Garmon erected a gate blocking the final 700 feet of the roadway. In 2005, Laney filed a complaint in the trial court requesting that the court (1) declare that the roadway is a public road and enjoin Garmon from blocking it or from otherwise interfering with the public’s access to the roadway, and (2) declare that Garmon had no right or interest in a parcel of property that both parties claimed was included in the property descriptions in their deeds. Garmon answered Laney’s complaint, alleging that the roadway had been abandoned as a public road for at least 20 years and that he owned the disputed property. On June 3, 2008, the trial court held a hearing on Laney’s complaint, and, after hearing ore tenus evidence, it entered a judgment declaring that the roadway had been abandoned for more than 20 years and, therefore, is not a public road. The trial court’s judgment did not address ownership of the disputed property. Laney filed a post-judgment motion, alleging that Garmon had not presented sufficient evidence to support the trial court’s judgment determining that the roadway had been abandoned for the requisite 20 years. The trial court denied Lane/s postjudgment motion. Laney appealed to the Alabama Supreme Court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis

Although neither party addresses this court’s jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). Because the trial court’s judgment adjudicated only one of the two claims Laney presented in his complaint, we conclude that the judgment is not final and that the appeal must therefore be dismissed.

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

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

APPEAL DISMISSED.

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

      . We also note that Laney did not join Cherokee County as a party to the action. The county is an indispensable party to an action seeking to determine whether a road is public or private. Boles v. Autery, 554 So.2d 959, 962 (Ala.1989).
      "The trial court’s determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain it. If the county is not joined as a party, then neither it nor other members of the public are bound by the trial court’s ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation.”

        Boles, 554 So.2d at 961. The fact that a county employee is called to testify as a witness at trial, as occurred in this case, does not negate the requirement that the county be joined as a party to the action. Id. "The absence of a necessary and indispensable party necessitates the dismissal [by the trial court] of the cause without prejudice or a reversal [by the appellate court] with directions to allow the cause to stand over for amendment.” J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981).