author: SMITH, Justice.

text:
    Ex parte State of Alabama. (In re Billy Don EVANS, Jr. v. STATE of Alabama).
    1070703.
    Supreme Court of Alabama.
    July 11, 2008.
    Eleanor I. Brooks, district atty., and Trisha L. Mellberg, deputy district atty., for petitioner.
    Aimee C. Smith of Vickers, Smith & White, PLLC, Montgomery, for respondent.
   SMITH, Justice.

The State of Alabama petitions for a writ of mandamus directing the trial court to reinstate the guilty plea of the defendant, Billy Don Evans, Jr. We dismiss the petition as untimely filed.

Evans, whom the materials before us identify as a school teacher, was indicted on two counts of child abuse for allegedly hitting two children with an extension cord and a water hose. At arraignment, Evans pleaded not guilty, and his case was scheduled for a trial to be held on April 17, 2006.

The trial court subsequently set a review date to determine whether Evans was eligible to participate in the “pre-trial diversionary program” (hereinafter “the diversion program”) established in the Fifteenth Judicial Circuit in accordance with Act No. 706, Ala. Acts 1978. On May 3, 2006, Evans filed a motion requesting that the trial court cancel the review hearing and reschedule his case for trial. In his motion, Evans sought to withdraw his application for participation in the diversion program because a guilty plea was a prerequisite to admission into the diversion program, because the district attorney had expressed strong opposition to Evans’s admission to the diversion program, and because Evans had determined that it was not in his best interest to enter a guilty plea as the trial court would ultimately sentence him as charged and a conviction would “most assuredly cause [him] to lose his employment as a teacher along with all opportunity to vest his retirement .... ” The trial court granted the motion and reset Evans’s case for trial.

Although Evans had requested that he not be considered for the diversion program, he later filed a “Petition to Allow Application for Diversion.” The trial court granted this petition, and a plea hearing was held on June 22, 2006. At the hearing, Evans’s counsel stated that Evans wished to plead guilty and to apply for the diversion program. The deputy district attorney present, however, stated in open court that she did not think Evans would be admitted to the program. The trial court commented: “I’m going to campaign vigorously for his admission into the program. We need to make an exemption on this one. This guy needs to be in.”

The trial court then proceeded to conduct a colloquy with Evans noting that “it was going to be tough” for Evans to be admitted into the diversion program and that his counsel would “campaign” for him and “hopefully” he would be accepted. The trial court also explained that if Evans was not accepted into the diversion program, he would be adjudicated guilty and sentenced: “[L]et’s say for some reason you don’t get in or you get in and you get kicked out ... I’ve got to adjudicate you guilty and sentence you .... ” Evans subsequently pleaded guilty to two counts of felony child abuse and applied to the diversion program.

Evans was ultimately denied entry into the diversion program. He “appealed” his denial; however, his appeal and his subsequent “motion for reconsideration” were also denied. Upon the motion of the State, Evans’s case was scheduled for sentencing; however, on November 28, 2006, the trial court entered an order in the case-action summary continuing Evans’s sentencing “indefinitely” and placing the case on the trial court’s administrative docket.

On July 24, 2007, the trial court entered the following order appointing new counsel for Evans and setting a hearing for sentencing:

“Comes the Court and does hereby order that the Honorable Richard White is appointed as counsel for the defendant for the purposes of sentencing. Defendant pled guilty to two counts of child abuse on June 22, 2006 before this Court. The Court having determined that, after several attempts, defendant was unable to enroll in the Pre-trial Diversion Program, does hereby set sentencing for September 6, 2007 .... ”

The sentencing hearing was continued, and on October 4, 2007, the trial court held a hearing “to sentence Mr. Evans on two counts of child abuse .... ” The following exchange occurred:

“MR. WHITE [defense counsel]: I’ve talked to [Evans] in pretty good detail .... I’m under the impression if he gets a felony, if you adjudicate him guilty, he’s going to lose his job.
“MR. WHITE: My understanding from talking with him was he did not understand that .... But his understanding [was] ... that he was going to go to pretrial; that his case—
“THE COURT: They won’t let him in.... I think Mr. Evans ought to be allowed to do pretrial because he does teach school; he’s taught school for a long time, like twenty something years.... Mr. Evans here is a good person who’s got a good job, who’s never been in trouble, who needs to get his retirement, who needs — and who’s a great teacher. I’ve gotten great reports. And I’m just going, you know, why can’t we do pretrial diversion? Well, we can’t because the DA’s office says no ....
“THE COURT: Well, and this is what I was going to do ... Mr. Evans, when can you retire?
“[EVANS]: ... 2009.
“THE COURT: ... We’ll just let him withdraw the guilty plea, and we’ll just — we’ll reset the case after his retirement.
“[DEPUTY DISTRICT ATTORNEY]: The State would object to him withdrawing his guilty plea. On June 22, 2006, he pled guilty with the understanding — I made it very clear — that it was my opinion that he would not be eligible for pretrial diversion and that he would not get into pretrial diversion. The adjudication was withheld pending the outcome of pretrial diversion, so he did plead guilty on that date. He made a knowing and voluntary and intelligent plea of guilt in this case. Mr. Freeman, his attorney at that time, was given all of the discovery, given the pictures, and there were extensive talks about what would happen or what could possibly happen if this case went to trial. So based on that, the State would object to him being allowed to withdraw his guilty plea.
“THE COURT: Okay. And I’ll note your objection. And I am going to allow him to withdraw.
“THE COURT: ... And I am going to let you withdraw your plea because I think you only entered it with the understanding you would get in pretrial diversion .... ”

The trial court granted Evans’s oral motion to withdraw his guilty plea, and it set the case for trial on January 4, 2010, after Evans is scheduled to begin receiving his retirement benefits.

On October 11, 2007, the State filed a petition for a writ of mandamus in the Court of Criminal Appeals, presumably seeking the same relief sought in the instant petition. The Court of Criminal Appeals denied the State’s mandamus petition without an opinion on January 7, 2008. Evans v. State (No. CR-07-0069, January 7, 2008), — So.3d - (Ala.Crim.App. 2008) (table). The State asserts that it never received a notice that the Court of Criminal Appeals had denied its petition; after learning of the denial, the State filed the instant petition in this Court on February 19, 2008.

In its petition, the State contends that Evans failed to meet his burden of establishing that his pleas were due to be withdrawn, that the trial court clearly exceeded its discretion in allowing Evans to withdraw his guilty pleas simply because he had been denied entry in the diversion program, and that the trial court exceeded its discretion in postponing the trial date until after Evans is eligible to begin receiving retirement benefits.

We express no opinion on the merits of the State’s arguments or the appropriateness of the trial court’s actions in this case, because we conclude that the petition must be dismissed as untimely filed. Rule 21, Ala. R.App. P., governs the filing of mandamus petitions. Rule 21(a) governs, among other things, mandamus petitions “directed to a judge or judges,” while Rule 21(e) specifically governs this Court’s review of a decision of a “court of appeals” on an “original petition for writ of mandamus or prohibition or other extraordinary writ.” These two subdivisions also have different timing provisions. Rule 21(a)(3) provides:

“The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

However, the timing for the filing of a petition pursuant to Rule 21(e) is different. If a rehearing was sought in the court of appeals, then the timing of the petition filed in the supreme court (with some exceptions if the application is withdrawn) is governed by subdivision (e)(3). That subdivision incorporates the procedures for certiorari review found in Rule 39, Ala. RApp. P., including the various timing provisions found in that rule.

If no application for rehearing is filed (or is properly withdrawn as specified in subdivision (e)(3)), then the timing of the filing is governed by subdivision (e)(2), which provides:

“(2) Such review in the supreme court of a grant or denial must be commenced by filing the petition in the supreme court within fourteen (14) days of the grant or denial of the writ by the court of appeals. Procedures on such review shall conform to the provisions of subdivisions (a), (b), and (c) of this rule where those subdivisions are applicable.”

In the instant case, the State’s “original petition for extraordinary relief’ was denied by the Court of Criminal Appeals; therefore, the State has filed in this Court a presumably “similar petition.” Rule 21(e)(1). Because no application for rehearing was filed, subdivision (e)(3), requiring review by writ of certiorari, does not apply in this case. Instead, the timeliness of the State’s petition is governed by subsection (e)(2), which requires that the petition be filed “within fourteen (14) days of the grant or denial of the writ by the court of appeals.”

The Court of Criminal Appeals denied the State’s mandamus petition on January 7, 2008; the instant petition was not filed with this Court until February 19, 2008, well beyond the 14 days specified in Rule 21(e)(2). Therefore, it is untimely filed.

However, the State points to the second sentence in subdivision (e)(2), which states that “[procedures on such review shall conform to the provisions of subdivisions (a), (b), and (c) of this rule where those subdivisions are applicable.” The State suggests that “the review” of the petition filed in this Court “must also conform to the provisions in subdivisions (a), (b), and (c).” The State then notes that Rule 21(a)(3) states that if “a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” The State then suggests that the timing provisions in Rule 21(a)(3) apply in this case, and further contends that although this petition was “filed beyond the presumptively reasonable time, it is appropriate for this Court to review because the State of Alabama filed this action immediately after becoming aware of the decision of the Alabama Court of Criminal Appeals.”

The general timing provision in subdivision (a)(3) does not apply to the State’s petition for the writ of mandamus in this case. As noted above, Rule 21(e) specifically governs a petition filed in the “supreme court” to review a “decision of a court of appeals on an original petition for writ of mandamus .... ” Furthermore, Rule 21(e)(2) invokes only the provisions of subdivisions (a), (b), and (c), “where those subdivisions are applicable.” (Emphasis added.) Rule 21(e) specifically governs the filing in the “supreme court” of a petition to review a decision of a court of appeals, and Rule 21(e)(2) requires that such a petition be filed within 14 days of the grant or denial of the writ by the court of appeals. Because Rule 21(e)(2) specifically governs the timing of filing in this Court of a petition for a writ of mandamus reviewing a decision of a court of appeals, the general provisions governing the time for filing mandamus petitions in Rule 21(a)(3) are not “applicable” within the meaning of the second sentence of Rule 21(e)(2). Cf. State Farm Mut. Auto. Ins. Co. v. Brown, 894 So.2d 643, 650 (Ala.2004) (“[A] statutory provision relating to a specific subject is understood to act as an exception to a provision relating to general subjects.”). Because the petition in this case was not filed within, 14 days after the Court of Criminal Appeals’ denial of the State’s petition for the writ of mandamus, we hold that the instant petition is untimely filed and, therefore, is due to be dismissed.

PETITION DISMISSED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . It appears from the materials before us that the alleged abuse did not occur in conjunction with Evans's teaching.

      . Act No. 706 provided for the creation of a “pre-trial or a pre-prosecution diversionary or deferred prosecution program,” § 2.a., in the Fifteenth Judicial Circuit. Persons who are accepted into and satisfactorily complete the diversion program are entitled to a "noncriminal disposition” of the charges against them.

      . According to the State’s brief, it has been the policy of the diversion program for over 30 years to exclude all violent offenders from participating in the program.

      .It is unclear what procedures Evans undertook in the "appeal” process. The exhibits submitted with the petition for the writ of mandamus simply reflect that Evans's "appeal” and his "appeal reconsideration” had been denied by the district attorney and that his case was "being returned to the court system for prosecution.”

      . The materials before us do not explain why the State did not receive notice that the Court of Criminal Appeals had denied the petition, and there is no explanation or affidavits in the materials before us demonstrating the circumstances of the State’s alleged lack of notice.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Linda PIKE v. Brenda REED.
    2070410 and 2070542.
    Court of Civil Appeals of Alabama.
    July 25, 2008.
    Patrick O. Miller of Dick Riggs Miller LLP, Huntsville, for appellant.
    Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appel-lee.
   BRYAN, Judge.

In these consolidated appeals, the defendant, Linda Pike, appeals a partial summary judgment entered in favor of the plaintiff, Brenda Reed. Because we lack jurisdiction, we dismiss the appeals.

On February 2, 2006, Reed sued Pike, alleging that Pike had converted “approximately $26,604” in insurance benefits to which Reed claimed to be entitled as a result of a fire that damaged an insured dwelling. As relief, Reed prayed that the trial court would

“[enter a] judgment against Defendant Linda Pike for all nominal, compensatory, and punitive damages to which [Reed] [is] entitled by law, and further prays the Court to award [Reed] such further remedies as may be warranted, including but not limited to: rescission of any Power of Attorney or other agreement under which Defendant Linda Pike may acquire control or possession of any property or interest that rightfully belongs to [Reed], injunction, and a constructive trust to [be] imposed upon any funds in Defendant Linda Pike’s possession or control freezing the same and awarding them to [Reed], or such other and additional relief to which the Court determines [Reed] is entitled[, and]
“... immediately take jurisdiction and issue a temporary restraining order and preliminary injunction enjoining Defendant Linda Pike from doing any act to alienate or otherwise dispose of or conceal any funds in her possession or control which rightfully belong to [Reed], to set this matter for hearing as soon as possible and convenient to the Court, and to make this injunction permanent upon resolution of the issues and entry of Judgment.”

The record contains no indication that a hearing was ever held regarding a temporary restraining order or a preliminary injunction. On October 9, 2007, Pike moved the trial court for a summary judgment in her favor. On October 12, 2007, Reed moved the trial court for a partial summary judgment with respect to the issue of liability; however, her motion did not seek a determination regarding the relief to which she was allegedly entitled. Following a hearing, the trial court entered an interlocutory order on November 5, 2007 (“the November 5 order”), denying Pike’s motion for a summary judgment and granting Reed’s motion for a partial summary judgment with respect to the issue of liability. The November 5 order did not purport to determine the relief to which Reed was entitled.

On December 5, 2007, Pike moved the trial court to alter, amend, or vacate the November 5 order; the trial court denied that motion on December 20, 2007. On January 28, 2008, the parties jointly moved the trial court to certify the November 5 order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. However, on January 31, 2008, before the trial court had ruled on the joint motion seeking certification of the November 5 order as a final judgment, Pike filed a notice of appeal to this court. We docketed that appeal (“the first appeal”) as appeal no. 2070410. Thereafter, we determined that Reed’s claim for an unspecified amount of punitive damages caused the fust appeal to exceed this court’s jurisdictional limit, and, therefore, this court transferred that appeal to the supreme court; however, the supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Meanwhile, on February 1, 2008, the day after Pike had filed the notice of appeal initiating the first appeal, the trial court entered an order (“the February 1 order”) certifying the November 5 order as a final judgment pursuant to Rule 54(b) and awarding Reed damages in the amount of $26,604. The February 1 order did not purport to grant or deny the other relief sought in Reed’s complaint. On March 11, 2008, Pike filed another notice of appeal to this court, which initiated a second appeal (“the second appeal”). We docketed the second appeal as appeal no. 2070542. However, as with the fust appeal, we determined that the claim for an unspecified amount of punitive damages in Reed’s complaint caused the second appeal to exceed this court’s jurisdictional limit, and, therefore, this court transferred the second appeal to the supreme court. The supreme court then transferred the second appeal back to this court pursuant to § 12-2-7(6). Thereafter, we consolidated the first appeal and the second appeal.

Although neither party has questioned whether this court has jurisdiction, we must do so ex mero motu. See HoHon v. Hoiton, 822 So.2d 431, 433 (Ala.Civ.App. 2001) (“ ‘ “[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” ’ ” (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App. 1997), in turn quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987))). Subject to limited exceptions not applicable in this case, “ ‘ “ ‘an appeal will lie only from a final judgment.’ ” ’ ” Busby v. Lewis, 993 So.2d 31, 33 (Ala.Civ.App.2008), (quoting Owens v. Owens, 739 So.2d 511, 513 (Ala. Civ.App.1999), in turn quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)).

“ ‘ “A final judgment is one that completely adjudicates all matters in controversy between the parties. “ ‘ . An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ.

Busby v. Lewis, 993 So.2d at 34 (quoting Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003), in turn quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).

Although the November 5 order determined that Pike was liable for conversion, it did not determine what relief Reed was entitled to receive. Consequently, it was not a final judgment. See Busby v. Lewis. Although the February 1 order purported to certify the November 5 order as a final judgment, the notice of appeal that Pike filed on January 31, 2008, the day before the trial court entered the February 1 order, had divested the trial court of jurisdiction to enter the February 1 order. Id. (holding that the filing of a notice of appeal following the entry of two nonfinal judgments divested the trial court of jurisdiction to enter a final judgment until the appeals from the nonfinal judgments had been dismissed). Because the trial court did not have jurisdiction to enter the February 1 order, that order is a nullity. Id. Because the February 1 order is a nullity, it did not effectively certify the November 5 order as a final judgment pursuant to Rule 54(b). Accordingly, no final judgment has been entered in the case now before us. Therefore, we must dismiss both of Pike’s appeals.

2070410 — APPEAL DISMISSED.

2070542 — APPEAL DISMISSED.

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


author: PITTMAN, Judge.

text:
    Leigh O’Gwynn FARNELL v. Frank C. FARNELL.
    2070069.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2008.

      Herndon Inge III, Mobile, for appellant.
    A. Evans Crowe, Mobile, for appellee.
   PITTMAN, Judge.

Leigh O’Gwynn Farnell (“the mother”) appeals from a judgment that modified the child-support obligation of Frank C. Far-nell (“the father”).

The parties were divorced by a judgment entered on June 29, 2001. The parties’ divorce judgment incorporated an agreement that contained the following pertinent provisions: the mother was awarded primary physical custody of the parties’ three children; the father was ordered to pay $1,200 in monthly child support; the father was ordered to maintain medical insurance on the parties’ three children; and the father was ordered to maintain a $400,000 life-insurance policy on himself during the children’s minority. In September 2006, upon motion of the mother, the trial court entered a judgment determining that the father was $46,940.93 in arrears in paying child support. In that judgment, the father’s monthly child-support obligation was prospectively reduced to $856, but he was ordered to pay an additional $300 each month toward the ar-rearage.

In December 2006, the mother filed a motion seeking to enforce the child-support provisions of the previous judgments. Specifically, the mother requested that the father be found in contempt of court for having failed to comply with the September 2006 judgment; in addition, the mother requested that the father be incarcerated until he paid a substantial sum toward the arrearage.

In response to the mother’s discovery requests, the father provided copies of his 2005 and 2006 federal and state income-tax returns; those returns reflected that he had declared income totaling $3,398 in 2005 and $7,501 in 2006. Those returns indicated that the father was entitled to receive income-tax refunds of $4,693 for the 2005 tax year and $3,820 for the 2006 tax year. The father testified at trial that he had taken the federal earned-income credit for the parties’ three children on those federal income-tax returns in order to be able to apply the refunds to his child-support arrearage; however, a document submitted by the father detailing his child-support-payment history indicated that he had only paid a total of $5,227.47 to the mother in 2006 and 2007.

The father filed a response to the mother’s motion, and the trial court conducted an ore tenus proceeding on September 17, 2007. At that hearing, the mother and the father were represented by counsel, and both parties testified; the parties’ eldest child also testified. The mother testified that the father had consistently failed to follow the trial court’s judgments regarding payment of child support; she stated her belief that the father would need to be incarcerated in order to understand the serious nature of failing to meet his child-support obligation pursuant to the trial court’s judgments.

The father, on the other hand, insisted that his income had dramatically declined in the past year. He referenced his federal and state income-tax returns to corroborate his lack of disposable income. In addition, the father testified that since the trial court’s preceding hearing in September 2006, the father had assumed the care of the parties’ eldest child, thus leaving the mother with the burden of caring for only the two younger children. The father orally requested that the trial court reduce his child-support obligation to reflect both that the mother was acting as the physical custodian of only two children and that his own income had been reduced to essentially a minimum-wage level.

On September 18, 2007, the trial court entered a judgment that found the father to be $51,093.03 in arrears in paying child support. The judgment prospectively reduced the father’s monthly child-support obligation to $159 but ordered the father to file all future pay stubs with the clerk of the court to ensure that the father’s income could be monitored for purposes of potential future modification judgments.

The mother filed a timely notice of appeal, and she asserts that the trial court erred in allowing the father to seek a reduction in his child-support obligation. Substantively, she claims that the father’s financial circumstances had not changed since the entry of the September 2006 judgment and that the trial court had improperly applied the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

In Wilkerson v. Waldrop, 895 So.2d 347 (Ala.Civ.App.2004), this court reiterated the long-standing position that to avoid reversal, a trial court must properly have applied Rule 32, Ala. R. Jud. Admin., when child support is made an issue on appeal. We note that this court has previously specified the forms that must be included in the record on appeal in order for this court to review whether the guidelines have been properly applied. See, e.g., J.L. v. A.Y., 844 So.2d 1221, 1224 (Ala.Civ.App. 2002). In the instant case, although the proper forms were submitted by the parties and are contained in the record, the trial court did not prepare and file a CS-42 child-support worksheet reflecting its calculations. Apparently, the trial court merely adopted the father’s proposed CS-42 form and entered an order that conformed to the calculations made by the father on that form.

Rule 32(B)(9), Ala. R. Jud. Admin., specifies the procedure that a trial court must use when each parent has custody of one or more of the parties’ children. That procedure requires the trial court to:

“(a) Compute the support the father would owe to the mother for the children in her custody as if they were the only children of the two parties; then
“(b) Compute the support the mother would owe to the father for the children in his custody as if they were the only children of the two parties; then
“(c) Subtract the lesser support obligation from the greater. The parent who owes the greater obligation should be ordered to pay the difference in support to the other parent, unless the court determines, pursuant to other provisions of this rule, that it should deviate from the guidelines.”

As our Supreme Court observed in Ex parte Moore, 805 So.2d 715, 719 (Ala.2001):

“The figure calculated by using Form CS-42 is accorded a rebuttable presumption that it is the correct amount of child support to be awarded .... Rule 32(A), Ala. R. Jud. Admin.; Rolen v. Pickering, 628 So.2d 850 (Ala.Civ.App. 1993).... In addition, a trial court can make a child-support award that deviates from the recommended figure as calculated according to the Guidelines, but to support such a deviation the court must make written findings of fact based upon evidence presented to it. Rule 32(A)(1); State Dep’t of Human Res. v. J.B., 628 So.2d 889 (Ala.Civ.App.1993).”

In addition,

“[t]o comply with Rule 32(E), each party to a divorce must file a CS-41 (Child Support Obligation Income Statement/Affidavit form) with the trial court. Often a CS-42 (Child Support Guidelines form) is filed by one or both parties for the trial court’s consideration. Occasionally, under Rule 32(A)(2), the trial court accepts a Child Support Guidelines Notice of Compliance form, which allows the court to adopt a stipulation from the parties regarding the amount of child support to be paid. Usually, the trial court completes a CS-i2 by filling in each party’s income and by computing the monthly child-support amount due.”

J.L., 844 So.2d at 1225 (emphasis added).

As noted above, the trial court did not complete a CS^12 form, and the father’s CS-42 computation is based upon only a single child, not three. As noted previously, Rule 32(B)(9) requires a different computation, and Rule 32(E) requires that a CS-42 form be incorporated into every child-support judgment. We have routinely reversed judgments based upon failures by trial judges to complete CS-42 forms when we cannot discern the basis for the child-support award from the record. See, e.g., Kirkland v. Kirkland, 860 So.2d 1283, 1291 (Ala.Civ.App.2003), and Fomby v. Fomby, 840 So.2d 919, 921 (Ala.Civ.App. 2002). Because we cannot discern the basis for the trial court’s child-support judgment in the present case, we must reverse the judgment and remand this case for further proceedings. In addition, we recognize that because over a year has passed since the trial court received CS-41 forms from the parties, updated income statements may be necessary for the trial court to properly compute the father’s child-support obligation.

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

The mother has requested an award of an attorney fee on appeal, but, in view of the relative financial circumstances of the parties, we deny the mother’s request.

REVERSED AND REMANDED.

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

      . The transcript of the hearing indicates that the father had also paid $500 to the mother in March 2007 when he received a continuance of the trial; both parties acknowledged that that payment was not reflected on the child-support-payment document.


author: THOMPSON, Presiding Judge. BRYAN, Judge, MOORE, Judge,

text:
    CREDIGY RECEIVABLE, INC. v. Stanley B. DAY, Jr.
    2070091.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2008.

      Dayna R. Burnett-Wilhoit and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for appellant.
    Stanley Brooks Day, Jr., pro se.
   THOMPSON, Presiding Judge.

On August 28, 2006, Credigy Receivable, Inc. (“Credigy”), sued Stanley B. Day, Jr., in the Baldwin Circuit Court, claiming $8,637 due on an account stated. It appears from the record that Credigy is a successor in interest of First Select, Inc., which had been assigned the credit-card debt allegedly owed by Day to MBNA, N.A. (“MBNA”). On December 6, 2006, Day, acting pro se, filed a response to Credigy’s complaint in which he stated:

“At no time have I ever had a credit card with MBNA. I have asked Credigy Receivables for any sort of written proof they might have during phone conversations with them they made attempting to collect, which they did not supply.
“I do not know of any agreement to enter into arbitration or being involved in any such arbitration with Credigy Receivables, Inc.
“I would like to see any evidence they have to support this claim.”

The record on appeal contains a letter addressed to Day from the National Arbitration Forum (“NAF”) dated August 25, 2005, approximately one year before Cre-digy filed its August 28, 2006, complaint in the trial court. The letter references “Credigy Receivables, Inc. v. Stanley B. Day, Jr.” and cites an NAF file number. It encloses a copy of an arbitrator’s award against Day, also dated August 25, 2005, referencing the same case name and NAF file number. It is unclear whether these documents were submitted to the trial court with Credigy’s original complaint or with a later filing. The arbitration award states as follows:

“The undersigned Arbitrator in this case FINDS:
“1. That no known conflict of interest exists.
“2. That on or before 06/17/2005 the Parties entered into an agreement providing that this matter shall be resolved through binding arbitration in accordance with the [NAF] Code of Procedure.
“3. That [Credigy] has filed a claim with the [NAF] and served it on [Day] in accordance with Rule 6.
“4. That the matter has proceeded in accord with the applicable [NAF] Code of Procedure.
“5. That the Parties have had the opportunity to present all evidence and information to the Arbitrator.
“6. That the Arbitrator has reviewed all evidence and information submitted in this case.
“7. That the information and evidence submitted supports the issuance of an Award as stated.
“Therefore, the Arbitrator ISSUES:
“An award in favor of [Credigy], for a total amount of $8,088.91.”

The award contains a certification that it “was sent by first class mail postage prepaid to the Parties at the ... addresses [referenced in the award].”

With leave of the court, Credigy subsequently amended its complaint. In its amended complaint, Credigy abandoned the account-stated claim and sought to enter a judgment on the arbitration award pursuant to the Alabama Arbitration Act (“the Act”), § 6-6-1 et seq., Ala.Code 1975. Credigy alleged that Day had applied for and was issued a credit card by MBNA and had incurred an $8,088 debt on that card, which he did not pay. According to the amended complaint, the debt was transferred to Credigy and, pursuant to Day’s original contract with MBNA, the dispute was submitted to arbitration through the NAF. Credigy alleged that it had obtained an arbitration award against Day and that Day had not satisfied the award. Credigy requested that the arbitration award be given the force and effect of a judgment against Day. See §§ 6-6-2 and 6-6-12, Ala.Code 1975.

Based on Day’s assertion that he had never had a credit card with MBNA, the trial court ordered Credigy to produce a credit-card application between Day and MBNA. On September 24, 2007, the trial court conducted a hearing. Credigy did not produce a credit-card application at the hearing as the trial court had ordered. Day, acting pro se, represented to the trial court that he had never had an MBNA credit card. He contended that unless Credigy could produce an agreement to arbitrate, he was not obligated to participate in the arbitration proceeding; in so arguing, Day apparently contended that he could not be bound by the arbitration award because he did not participate in the arbitration proceeding. Credigy, through its counsel, responded by stating that Day was given opportunities to participate in the arbitration proceeding, that he did not do so, and that, pursuant to the Act, the arbitration award was to be treated as a judgment.

After being duly sworn, Day testified that he had received letters from the NAF. He stated:

“DAY: I don’t recall receiving four [letters]. I mean, I’ve seen things from the National Arbitration Forum. I received one thing from the National Arbitration Forum saying that all arbitration awards granted during a certain time frame after Hurricane Ivan had been null and void.
“CREDIGY’S COUNSEL: That’s correct. And after that, did you receive one where the proceedings had been reinstated after the stay from Hurricane Katrina?
“DAY: I don’t know if I did or not.
“CREDIGY’S COUNSEL: So you received the one vacating a previous award, but you didn’t receive the subsequent notices to you?
“DAY: I received [a letter] stating that the award had been granted.
“CREDIGY’S COUNSEL: And did you file anything in response with the [NAF] to dispute ever having an MBNA credit card?
“DAY: No.”

The trial court entered an order on September 26, 2007, stating: “Plaintiff and defendant appeared. Defendant has sworn in open court that he has never had a MBNA credit card. The plaintiff has failed to produce a MBNA credit card application as ordered by this court on 7-23-2007. Case dismissed.” Credigy filed a notice of appeal to this court on October 26, 2007.

On appeal, Credigy argues that the trial court erred by failing to enter the arbitration award as a judgment pursuant to § 6-6-2. Credigy further argues that the award cannot be inquired into or impeached because Day did not follow the correct procedures for an appeal of the award set forth in § 6-6-15, Ala.Code 1975.

The Act establishes the procedures by which disputes may be submitted to arbitration and by which arbitration awards are entered in Alabama. Section 6-6-2 provides:

“When no action is pending, the parties to any controversy may refer the determination thereof to the decision of .arbitrators to be chosen by themselves, and the award made pursuant to the provisions of this division must be entered up as the judgment of the proper court if the award is not performed.”

(Emphasis added.) Once a dispute has been submitted to arbitration and an award made thereon, as is the circumstance in this case, the Act provides that the award will have the effect of a judgment.

“If the award is not performed in 10 days after notice and delivery of a copy thereof, the successful party may, ... if no action is pending, cause the submission and award to be returned to the clerk of the circuit court of the county in which the award is made. Such award has the force and effect of a judgment, upon which execution may issue as in other cases.”

§ 6-6-12, Ala.Code 1975.

In reviewing the record on appeal, we cannot find that the trial court or its clerk ever entered the arbitration award as the judgment of the trial court pursuant to §§ 6-6-2 and 6-6-12. “[W]e must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). Section 6-6-2 states that arbitration awards made pursuant to the Act “must be entered up as the judgment of the proper court if the award is not performed.” (Emphasis added.) “The word ‘must’ is clear and unambiguous and is imperative and mandatory.” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). Accordingly, the trial court erred in not entering the arbitration award as its judgment pursuant to § 6-6-2. We reverse the trial court’s order dismissing the action and remand the action so that the trial court, or its clerk, see § 6-6-15, Ala.Code 1975, Horton Homes, Inc. v. Shaner, 999 So.2d 462, 464 (Ala.2008), may enter the arbitration award as the judgment of the trial court pursuant to § 6-6-2.

In his dissent, Judge Moore argues that, pursuant to § 6-6-2, the award may only be entered after the trial court determines that the parties entered an arbitration agreement. Under Judge Moore’s interpretation of § 6-6-2, a circuit court has the authority to inquire into underlying questions regarding the existence of the arbitration agreement and the circumstances of the arbitration, even when the party challenging the award has not complied with the appeal procedures established elsewhere in the Act. See §§ 6-6-14 and 6-6-15, Ala.Code 1975. The Act is not a model of clarity. See, e.g., Jenks v. Harris, 990 So.2d 878, 882 (Ala.2008). However, we believe that reading § 6-6-2 as Judge Moore proposes would infringe on the requirements of §§ 6-6-14 and 6-6-15, discussed below, and place a burden on the party seeking to enforce the award that the Act did not clearly intend.

This decision should not be read to imply that a party may not challenge the existence of an agreement to arbitrate or the propriety of the arbitration in procedural circumstances such as this, where the arbitration award has already been issued and a party is seeking enforcement of that award. On remand, the procedures established by §§ 6-6-14 and 6-6-15 will apply to the trial court’s consideration of Day’s arguments regarding the existence and enforceability of the arbitration agreement. Section 6-6-14, Ala.Code 1975, establishes specific grounds upon which an arbitration award may be set aside by a circuit court:

“An award made substantially in compliance with the provisions of this division is conclusive between the parties thereto and their privies as to the matter submitted and cannot be inquired into or impeached for want of form or for irregularity if the award determines the matter or controversy submitted, and such award is final, unless the arbitrators are guilty of fraud, partiality, or corruption in making it.”

Section 6-6-14 provides that only an award “made substantially in compliance with the provisions of this division” is conclusive between the parties. Although not explicit, this language implies that a party may challenge an arbitration award on the ground that it was not made in compliance with the requirements of the Act, i.e., that the parties did not agree to submit their dispute to arbitration.

Section 6-6-15, Ala.Code 1975, establishes the procedures for appealing from an arbitration award on the grounds set forth in § 6-6-14. That section provides:

“Either party may appeal from an award under this division. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending or, if no action is pending, then in the office of the clerk or register of the circuit court of the county where the award is made. The notice of appeal, together with a copy of the award, signed by the arbitrators or a majority of them, shall be delivered with the file of papers or with the submission, as the case may be, to the court to which the award is returnable; and the clerk or register shall enter the award as the judgement of the court. Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in Section 6-6-14, the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgement from which an appeal shall lie as in other cases.”

In an extensive discussion of § 6-6-15, our supreme court recently noted that “ ‘the procedure for obtaining jurisdiction to review an arbitration award under § 6-6-15, Ala.Code 1975, is far from clear.’ Jenks v. Harris, 990 So.2d 878, 882 (Ala. 2008).” Horton Homes, 999 So.2d at 464. The supreme court then clarified “the role of the circuit court in reviewing an arbitration award” and revised the procedures established by § 6-6-15. See Horton Homes, 999 So.2d at 464.

Under the procedures established in Horton Homes, a party seeking judicial review of an arbitration award must file a notice of appeal from that award within 42 days from the date the party received notice of the award. 999 So.2d at 464. Thereafter, once the clerk of the circuit court enters a judgment on the award pursuant to § 6-6-2, that judgment is conditional and may be set aside by the circuit court based on the grounds stated in § 6-6-14 if the party challenging the award has filed a motion to vacate.

Our supreme court has explained the procedures pursuant to which a judgment on an arbitration award may be set aside, stating as follows:

“The judgment entered by the circuit clerk on the arbitrator’s award pursuant to § 6-6-15 is a conditional one; it does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award. A party seeking review of an arbitration award is required to file a motion to vacate during this period — while the judgment entered by the circuit clerk remains conditional

Horton Homes, 999 So.2d at 467. The party challenging the arbitration award must file the motion to vacate “within 30 days of filing the notice of appeal of the arbitration award and the clerk’s entry of the conditional judgment based thereon” in order to “invoke the circuit court’s authority to set aside the [conditional] judgment” on the arbitration award. Id. If the party wishing to challenge the arbitration award does not file a motion to vacate within that time, the circuit court’s judgment based on the arbitration award becomes final. Id.

If the party files a timely motion to vacate, “the circuit court shall then have 90 days, unless that time is extended by the consent of all the parties, to dispose of the motion.” Id.

“If the circuit court grants the motion to vacate during this 90-day period, then the nonmovant has 42 days from the order granting the motion in which to file in the circuit court a notice of appeal of the court’s judgment. If the circuit court denies the motion to vacate within 90 days or allows the motion to be denied by inaction after 90 days, then the conditional judgment entered by the circuit clerk becomes final, and the appeal [of the party challenging the award] is processed based on the prior notice of appeal.”

Id.

In accordance with the rules established in Horton Homes, supra, the judgment to be entered by the trial court or its clerk pursuant to §§ 6-6-2 and 6-6-12 in accordance with this decision shall be conditional when it is entered. Because the procedures for filing a notice of appeal from an arbitration award under § 6-6-15 were unclear before the supreme court issued its decision in Horton Homes, see 999 So.2d at 468, Day shall have 30 days from the date of this decision to file a notice of appeal from the arbitration award and a motion with the trial court to vacate the award. If Day chooses not to file a notice of appeal and a motion to vacate, the trial court’s judgment on the arbitration award, entered in accordance with §§ 6-6-2 and 6-6-12, shall become final. If Day chooses to file a notice of appeal and a motion to vacate the award, he may argue, as he did before, that he never agreed to arbitrate a dispute with Credigy or its predecessors. See § 6-6-14, Ala.Code 1975 (“An award made substantially in compliance with the provisions of this division is conclusive between the parties thereto and their privies as to the matter submitted and cannot be inquired into or impeached for want of form or for irregularity if the award determines the matter or controversy submitted, and such award is final, unless the arbitrators are guilty of fraud, partiality, or corruption in making it.” (emphasis added)). If Day chooses to file a notice of appeal and a motion to vacate, the trial court will then have 90 days to issue a decision on the motion and Credigy’s response, as outlined in § 6-6-15 and Horton Homes, supra. Thereafter, the parties and the trial court shall proceed according to the procedures set forth in § 6-6-15 and Hoiton Hornes, supra.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs in part and dissents in part, with writing.

MOORE, J., dissents, with writing.

BRYAN, Judge,

concurring in part and dissenting in part.

I agree that the trial court’s judgment should be reversed and the case remanded for the trial court or its clerk to enter the arbitration award as the trial court’s judgment pursuant to §§ 6-6-2 and -12, Ala. Code 1975. However, I disagree with the main opinion’s conclusion to permit Day 30 days from the date of this court’s decision in which to file an appeal from the arbitration award. Because Day did not file an appeal from the arbitration award within 42 days from the date he received notice of that award, any appeal from that award would be untimely. Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008). I agree that the period for filing an appeal from an arbitration award was unclear before our supreme court’s decision in Horton Homes. However, that uncertainty should not serve as an excuse for Day, who never filed an appeal from the arbitration award. I believe that Day may still be afforded relief in the trial court, however. I read nothing in Horton Homes that would prevent Day, on remand, from filing a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment of the trial court confirming the arbitration award.

In all other respects, I concur in the main opinion.

MOORE, Judge,

dissenting.

I respectfully dissent from the majority’s reversal of the trial court’s judgment in this case.

The scant record in this case reveals the following: On August 28, 2006, Credigy Receivable, Inc. (“Credigy”), filed a complaint against Stanley B. Day, Jr. (“Day”), seeking to recover money due to nonpayment of a credit-card debt allegedly owed to MBNA, N.A. (“MBNA”), which had been assigned to Credigy. On December 5, 2006, Day answered, denying that he had ever been issued an MBNA credit card and demanding proof thereof; he also demanded proof of any arbitration agreement he had allegedly entered into with Credigy. On February 21, 2007, Credigy filed a motion to amend its complaint to seek the entry of a judgment on an arbitration award that had been rendered on August 25, 2005; that motion was granted. In the amended complaint, Credigy alleged that it had submitted the dispute over the credit-card debt to arbitration by the National Arbitration Forum (“NAF”) in accordance with the original contract between Day and MBNA, that Day had been notified of the arbitration proceedings, that an NAF arbitrator had rendered an award of $8,088.91 against Day, and that Day had failed to satisfy that award within 10 days.

In the amended complaint, Credigy cited Ala.Code 1975, § 6-6-12, a part of the Alabama Arbitration Act, Ala.Code 1975, § 6-6-1 et seq., which provides:

“If the award is not performed in 10 days after notice and delivery of a copy thereof, the successful party may, if an action is pending, cause the award and the file of papers in the case to be returned to the court in which the action is pending or if no action is pending, cause the submission and award to be returned to the clerk of the circuit court of the county in which the award is made. Such award has the force and effect of a judgment, upon which execution may issue as in other cases.”

As long ago construed by our supreme court, this statute does not contemplate that a circuit court will actually enter a judgment on the arbitration award but, rather, that it will merely take notice of the award and give it the force and effect of a judgment. Moss v. Upchurch, 278 Ala. 615, 618, 179 So.2d 741, 744 (1965) (citing Wilbourn v. Hunt, 139 Ala. 557, 563-64, 36 So. 768, 770 (1904)). To avoid enforcement, the party opposing the arbitration award must file a notice of appeal of the arbitration award, at which point the clerk of the circuit court shall enter the award as the judgment of the court. See Ala.Code 1975, § 6-6-15. The judgment may be set aside only for the reasons set out in Ala.Code 1975, § 6-6-14, which provides, in pertinent part:

“An award made substantially in compliance with the provisions of this division is conclusive between the parties thereto and their privies as to the matter submitted and cannot be inquired into or impeached for want of form or for irregularity if the award determines the matter or controversy submitted, and such award is final, unless the arbitrators are guilty of fraud, partiality, or corruption in making it.”

Had Credigy relied exclusively on § 6-6-12 in its amended complaint, it is apparent that the trial court could not have inquired into the existence of an arbitration agreement because Day had failed to file a notice of appeal of the arbitration award and the statutory procedure dictates that the trial court may only consider objections to the arbitration award during the appeal process.

However, in addition to citing § 6-6-12, Credigy also requested the court to “enter a judgment against [Day]” based on the arbitration award. Credigy further asserted that it was “seeking an entry of an arbitration award as a judgment upon which execution can issue.” “The relief sought within the pleading governs, and the nomenclature of the pleading is not controlling.” Garris v. Garris, 643 So.2d 993, 995 (Ala.Civ.App.1994). By requesting entry of a judgment, Credigy clearly invoked Ala.Code 1975, § 6-6-2, which it also cited in its amended complaint and which provides:

“When no action is pending, the parties to any controversy may refer the determination thereof to the decision of arbitrators to be chosen by themselves, and the award made pursuant to the provisions of this division must be entered up as the judgment of the proper court if the award is not performed.”

In Gady v. Tippett, 155 Ala. 296, 46 So. 463 (1908), superseded by statute on other grounds, McDuffie v. Faulk, 107 So. 61, 63, 214 Ala. 221, 224 (1926), our supreme court held that the predecessor to § 6-6-2 requires “the clerical act of filing said submission and award and entering the same up as the judgment of the court.” 155 Ala. at 298, 46 So. at 463.

Based on my review of applicable case-law, we are confronted with a question of first impression as to whether the language of § 6-6-2 authorizes a circuit court to inquire into the existence of an arbitration agreement before performing its clerical task of entering a judgment affirming the arbitration award. I believe it does.

As I read § 6-6-2, a circuit court must enter an arbitration award as its judgment only if the award is not performed and only if “the award [is] made pursuant to the provisions of this division.” An award is “made pursuant to the provisions of this division” if, among other things, it is rendered by an arbitrator “chosen” by “the parties to any controversy.” Therefore, § 6-6-2 basically provides that a circuit court must enter an unperformed arbitration award as its judgment if that award has been rendered by an arbitrator chosen by the parties involved in a dispute. Consequently, by necessary implication, a circuit court may not enter an unperformed arbitration award as its judgment if that award has been rendered by an arbitrator who has not been chosen by all the parties.

Reading § 6-6-2 as described above, a circuit court acting on a petition to enter an arbitration award should decide whether the parties agreed on the arbitrator before entering the award rendered by that arbitrator as its judgment. Obviously, if a circuit court is required to enter an arbitration award rendered by an arbitrator selected by all the parties, it must make an initial determination as to the existence of such an agreement before entering the award under § 6-6-2. If it determines that the parties entered into an arbitration agreement designating the arbitrator as the person to resolve their dispute, and all other conditions set out in the “division” are established, then, pursuant to § 6-6-2, the circuit court must enter as its judgment the unperformed award. On the other hand, if the circuit court finds that the parties did not enter into an arbitration agreement designating the arbitrator as the person to resolve their dispute, then, pursuant to § 6-6-2, the circuit court may not enter the award of that arbitrator as its judgment.

In the present case, there was no evidence offered to the trial court that both parties had agreed to submit their controversy to arbitration. Day testified that he had never possessed an MBNA credit card and further denied having ever filled out an application for an MBNA credit card. Credigy did not produce a credit-card application between Day and MBNA in response to the trial court’s order to do so; nor did Credigy produce any admissible evidence indicating that Day had agreed to arbitrate any claims relating to debt Day accumulated on an MBNA credit card. Consequently, the trial court correctly found that the parties had not chosen an arbitrator to decide their dispute and that the arbitration award was not “made pursuant to the provisions of this division.”

I agree with the main opinion that by stating that only those arbitration awards “made substantially in compliance with the provisions of this division” are conclusive, § 6-6-14 authorizes a circuit court also to set aside a judgment affirming an arbitration award that is not based on an agreement of all the parties to arbitrate. 3 So.3d at 211. Assuming a party properly follows the appeal procedures set out § 6-6-15 and Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008), a circuit court can, after the entry of a judgment affirming an arbitration award, make a determination as to the existence of an arbitration agreement and decide whether it erred in entering the judgment affirming the arbitration award. However, the same language in § 6-6-14 upon which the main opinion relies for this power is also contained in § 6-6-2, which bestows upon a circuit court the authority to make a determination as to whether an arbitration agreement exists before entry of the judgment. Therefore, I cannot agree with the main opinion that the statutory framework makes the appeals process the exclusive method for determining whether an arbitration agreement exists.

In short, I believe the operative statutes give a circuit court authority to determine the existence of an arbitration agreement both before and after the entry of a judgment affirming the arbitration award. The first inquiry is made to determine whether judgment should be entered on the award, while the latter concerns whether the judgment should be set aside. In this case, the trial court did not commit reversible error by deciding the issue before entering a judgment affirming the arbitration award. Because the trial court acted in accordance with § 6-6-2, and because the evidence supports the trial court’s determination, I believe it properly dismissed the amended complaint requesting the entry of a judgment affirming the arbitration award. For the foregoing reasons, I would affirm the judgment of the trial court.

      . The street number listed for Day on the award does not match the street number Day stated was his during testimony before the trial court; however it does match the street number on the return address Day listed in his response to Credigy's complaint. Furthermore, because Day later admitted receiving a copy of the award, this anomaly is immaterial.

      . There is no allegation in this case that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies in this case. Accordingly, we analyze this case only under the Alabama Arbitration Act.

      . In a footnote in his dissent, Judge Moore cites Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050 (Ala.2007); J.C. Bradford & Co. v. Vick, 837 So.2d 271, 273 (Ala. 2002); and Shearson Lehman Bros. v. Crisp, 646 So.2d 613, 618 (Ala.1994) for the proposition that “the question whether an arbitration agreement exists is to be decided by a court rather than an arbitrator.” 3 So.3d at 215 n. 4. In each of those cases, our supreme court reviewed the trial court’s ruling on a motion to compel arbitration filed after an action had been initiated in the trial court and before arbitration had occurred. In that particular context, it is settled law that, under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., the “party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce.” Edwards, 973 So.2d at 1052 (emphasis added). It is within that context that our courts have stated that the determination whether a contract exists is for the courts. See Edwards, Vick, and Crisp, supra. This case involves an arbitration award, not a motion to compel arbitration. Our research has not found any authority to support Judge Moore's argument that the requirements placed on a party seeking to compel arbitration also apply to a party who seeks to enforce an arbitration award.

      . The arbitration award indicates that the arbitrator found that the parties did agree to arbitrate; however, the question whether an arbitration agreement exists is to be decided by a court rather than an arbitrator. Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050 (Ala.2007); J.C. Bradford & Co. v. Vick, 837 So.2d 271, 273 (Ala.2002); and Shearson Lehman Bros. v. Crisp, 646 So.2d 613, 618 (Ala. 1994). The main opinion agrees that the trial court has the duty of deciding the existence of an arbitration agreement. Our dispute merely touches on the point at which that determination may be made.


author: THOMAS, Judge.

text:
    Thomas HOLLINGER, Jr., and Constance Hollinger v. Wendell WELLS, d/b/a Wells Construction.
    2070053.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2008.

      J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellants.
    J. McGowin Williamson of Williamson & Williamson, Greenville, for appellee.
   THOMAS, Judge.

In 2005, Wendell Wells, doing business as Wells Construction (“Wells”), contracted to repair a house in Lowndes County owned by Thomas Hollinger, Jr., and Constance Hollinger (“the Hollingers”). On January 3, 2006, Wells sued the Hollingers alleging breach of contract and seeking a lien against the Hollingers’ real property located in Lowndes County. Although the complaint alleges that Wells is “entitled to enforce a lien against the real property of [the Hollingers] such as filed in Exhibit ‘A’...,” there is no Exhibit “A” attached to the complaint or contained in the record.

On May 4, 2006, the Hollingers answered the complaint, alleging as an affirmative defense that the contract was unenforceable; they also counterclaimed, alleging that Wells had failed to complete the work in a good and workmanlike manner and that, as a proximate result, the Hollingers had incurred damages and had expended additional sums to have the repairs to the house completed.

On May 9, 2007, the trial court, without a jury, heard ore tenus testimony, apparently only from Wells. The court entered a judgment on May 16, 2007, determining that “[Wells] shall recover a judgment against the [Hollingers] in the sum of $15,623.80 ... plus statutory interest of 6% from July 1, 2005 to the date of this Order plus the cost of this action.”

On June 13, 2007, the Hollingers filed a postjudgment motion for a new trial alleging that the judgment was contrary to the law and the great weight of the evidence. That motion also alleged that they had obtained newly discovered evidence that would materially affect the outcome of the case. There was no affidavit or any documentary evidence attached to that motion.

On June 28, 2007, the Hollingers amended them postjudgment motion. That amendment alleges that because Wells did not have a valid license as a homebuilder pursuant to Ala.Code 1975, § 34-14A-1 et seq. (“the home builder licensure statute”), he lacked standing to enforce the parties’ contract. Attached to the amended post-judgment motion was an affidavit from the executive director of the Home Builders Licensure Board stating in unequivocal terms that Wells did not hold and had not ever held a valid home builders’ license pursuant to the home builder licensure statute. The Hollingers’ amended post-judgment motion cites Hooks v. Pickens, 940 So.2d 1029 (Ala.Civ.App.2006), in support of the proposition that Wells is statutorily barred from bringing an action to enforce the parties’ contract pursuant to AIa.Code.1975, § 34-14A-14.

On July 3, 2007, the Hollingers submitted additional evidentiary materials in support of their postjudgment motion. That submission included another affidavit from the executive director of the Home Builders Licensure Board authenticating business records showing that in 1999 the Lowndes County Commission had elected to make the homebuilder licensure statute applicable in Lowndes County and various notices to that effect published in and around Lowndes County at that time.

On July 9, 2007, Wells filed a motion seeking to strike the Hollingers’ amended postjudgment motion and the affidavits and other evidence submitted in support of that motion as untimely filed. The trial court held a hearing on the postjudgment motion and the motion to strike. The trial court did not rule upon Wells’s motion to strike. The postjudgment motion was denied by operation of law. The Hollingers timely appealed.

At the July 11, 2007, hearing on the Hollingers’ postjudgment motion, the Hol-lingers argued, as they do on appeal, that Wells lacked standing and was not entitled to bring or maintain an action because he was statutorily barred from filing the action. See § 34-14A-14. The Hollingers specifically cited Hooks v. Pickens, supra. According to the transcript of the hearing on the postjudgment motion, the Holling-ers also cited State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999), in support of the proposition that Wells lacked standing, that the trial court had not been invested with subject-matter jurisdiction, and that the judgment was, therefore, void; the Hollingers also provided the court with a copy of the opinion in State v. Property at 2018 Rainbow Drive, supra. The Hollingers’ arguments on appeal are the same as their arguments at the hearing on the postjudgment motion.

At the hearing on the postjudgment motion, Wells argued that the amended post-judgment motion and the affidavits and other evidence submitted in support of that motion were untimely filed and should be stricken. On appeal, Wells argues that the amended postjudgment motion, the affidavits, and the other evidentiary submissions were untimely and that the Holling-ers failed to show that the homebuilder licensure statute was applicable to Wells.

Regarding Wells’s ai’gument that the amended postjudgment motion, the affidavits, and the evidentiary submissions were untimely, we note that “the trial court has discretion to allow an amendment to a motion for new trial to state an additional ground after thirty days from the final judgment, if the original motion was timely filed and is still before the couri when the amendment is offered.” Alabama Farm Bureau Mut Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala.1983); see also Barnes v. George, 569 So.2d 382, 384 (Ala.1990); and Slaton v. Slaton, 542 So.2d 1242, 1244 (Ala.Civ.App.1989).

Regardless, the issue of standing implicates a court’s subject-matter jurisdiction and is a jurisdictional prerequisite to every case that can be raised at any stage of the proceedings. State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028. The Alabama Supreme Court has stated:

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 626 (Tex.1996) (‘Standing is a necessary component of subject matter jurisdiction’). See also Raines v. Byrd,, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“‘standing ‘is perhaps the most important of [the jurisdictional] doctrines’ ” ’); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’); Romer v. Board of County Comm’rs of the County of Pueblo, supra, 956 P.2d [566] at 585 [ (Colo.1998) ] (‘standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings’) (Martinez, J., dissenting).”

State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028; see also McCurdy v. L.C. Props., L.L.C., 781 So.2d 991, 998 (Ala.Civ.App.2000) (stating that the issue of standing can be raised at any time and that “this court could even raise the issue ex mero motu ”).

In State v. Property at 2018 Rainbow Drive, supra, the Alabama Supreme Court held that the City of Gadsden had not suffered an injury to a “legally protected right,” because the City “had no legal right to prosecute or to begin [a forfeiture] action” and because “the City was statutorily barred from commencing or prosecuting th[e] action.” 740 So.2d at 1028.

In Hooks v. Pickens, supra, this Court reversed the trial court’s judgment in favor of an unlicensed home builder and remanded the case. In that case, Jimmie Lucile Hooks entered into a contract with Theodore Pickens, doing business as Pick-ens Home Repair (“Pickens”), to complete remodeling work. Hooks became dissatisfied with the remodeling work and refused to pay Pickens.

Pickens sued Hooks alleging breach of contract and seeking damages for labor, materials, and interest. Hooks counterclaimed, seeking damages for completion of the work to her satisfaction. Hooks filed a motion for a summary judgment “arguing that Pickens, who was not licensed by the Home Builders Licensure Board, had no standing to sue alleging breach of contract. See Ala.Code 1975, § 34-14A-14; see generally Ala.Code 1975, § 84-14A-1 et seq.” 940 So.2d at 1030. The trial court denied Hooks’s motion for a summary judgment, tried the case, and entered a judgment in favor of Pickens.

This Court, determining the meaning of the home builder licensure statute and the legislative intent in enacting the statute, stated:

“The legislature expressed its intent in enacting the home builders licensure statute in § 34-14A-1, which reads, in part, as follows:

“ ‘In the interest of the public health, safety, welfare, and consumer protection and to regulate the home building and private dwelling construction industry, the purpose of this chapter, and the intent of the Legislature in passing it, is to provide for the licensure of those persons who engage in home building and private dwelling construction, including remodeling, and to provide home building standards in the State of Alabama .... Home builders may pose significant harm to the public when unqualified, incompetent, or dishonest home building contractors and remodelers provide inadequate, unsafe or inferior building services.... ’

“Thus, the purpose behind the licensing requirements of the home builders licensure statute is the protection of the public from ‘unqualified, incompetent or dishonest home building contractors and remodelers.’ In furtherance of the protection of the public, the legislature made engaging in the home-building business without a license a Class A misdemeanor. § 34-14A-14. In addition, and in recognition of the ‘well-established rule that if the purpose of a licensing statute is the regulation of the business licensed and not merely the collection of revenue, a person not licensed cannot enforce a contract for services rendered within the scope of the regulated business,’ Tucker v. Walker, 293 Ala. 589, 592, 308 So.2d 245, 247 (1975), the legislature made it impossible for an unlicensed home builder to maintain an action to enforce any provision of a contract for home-building services. § 34-14A-15.”

Hooks v. Pickens, 940 So.2d at 1031-32. This Court reversed the trial court’s judgment and remanded the action, stating: “Because Pickens was not licensed and was not exempt from the licensing requirement of the home builders licensure statute, Pickens was not entitled to maintain a breach-of-contract action against Hooks. § 34-14A-14.” Id. at 1033.

Here Wells was undisputedly an unlicensed contractor according to the affidavits and other evidence submitted by the Hollingers. Wells argues on appeal that the Hollingers have failed to show that the home builder licensure statute applied to him and that the Hollingers failed to establish that the building upon which Wells performed repairs was a “residence” or “structure” within the meaning of Ala. Code 1975, § 34-14A-2(9) and (11). Section 34-14A-2(9), Ala.Code 1975, defines a “residence” as “[a] single unit providing complete independent residential living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation.” Section 34-14A-2(ll), Ala.Code 1975, defines a “structure” as “[a] residence, including a site-built home, a condominium, a duplex or multi-unit residential building consisting of not more than four residential units.”

In his testimony, Wells agreed that he performed work upon “the residence,” including work performed upon the back porch, and he testified that the Hollingers were “trying to get the house fixed up to sell it.” Also, Wells argues that the Hol-lingers failed to show that he was a “residential home builder” within the meaning of Ala.Code 1975, § 34-14A-2(10). Wells testified that the contract amount was originally $12,300, that additional work was discussed, and that the contract amount was ultimately $33,000. The cost of the work Wells performed upon the Hollingers’ residence exceeded the $10,000 requirement in Ala.Code 1975, § 34-14A-2(10). Also, although Wells argues that roofing is not covered under § 34-14A-2(10), the statute specifically provides that a residential home builder is

“[o]ne ... who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake ... the repair, improvement, or reimprovement [of a residence or structure] ... when the cost of the undertaking exceeds ten thousand dollars ($10,000). ... Anyone who engages or offers to engage in such undertaking in this state shall be deemed to have engaged in the business of residential home building.”

Id.

It is clear from Wells’s testimony that he was repairing or improving the Holling-ers’ residence; those repairs or improvements included extensive roofing work, re-pats to the back porch, replacement of metal in the eaves, and replacement of crown molding. It is undisputed that Wells never had the requisite license pursuant to the homebuilder licensure statute. Therefore, he is statutorily barred from bringing or maintaining a breach-of-contract action. § 34-14A-14; Fausnight v. Perkins, 994 So.2d 912, 921 (Ala.2008) (stating that “in the statutory framework before us[, 34-14A-1 et seq.], ... an unlicensed homebuilder [is] unable to use Alabama courts to enforce its contracts related to residential home building ....”); Hooks v. Pickens, 940 So.2d at 1033 (holding that “[b]ecause Pickens was not licensed and was not exempt from the licensing requirement of the home builders licensure statute, Pickens was not entitled to maintain a breach-of-contraet action against Hooks. § 34-14A-14.”).

This Court has recently stated:

“ ‘Without subject-matter jurisdiction, any judgment entered in the action is void, ... and “[a] void judgment -will not support an appeal.” Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala.2003).’ Eagerton v. Second Econ. Dev. Coop. Disk of Lowndes County, 909 So.2d 783, 788 (Ala.2005). The judgment of the circuit court is therefore void, and will not support this appeal. We therefore, dismiss this appeal.”

Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 973 So.2d 369, 380 (Ala.Civ.App.2007). Because the trial court lacked subject-matter jurisdiction, its judgment is void and will not support this appeal.

APPEAL DISMISSED.

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