author: THOMPSON, Presiding Judge.

text:
    P.J. LUMBER COMPANY, INC. v. CITY OF PRICHARD
    2160627
    Court of Civil Appeals of Alabama.
    September 22, 2017
    Jerome E. Speegle and Jennifer S. Holifield of Speegle, Hoffman, Holman, and Holifield, LLC, Mobile, for appellant.
    W. Warren Butler and Benjamin T. Presley of Starnes Davis Florie LLP, Mobile, for appellee
   THOMPSON, Presiding Judge.

P.J. Lumber Company, Inc. ("P.J. Lumber"), appeals from a summary judgment that the Mobile Circuit Court entered upholding a decision of the City of Prichard ("the city") denying P.J. Lumber's request for a partial refund of the amount it had paid for business-license taxes. P.J. Lumber claimed that the city had improperly included P.J. Lumber's gross revenue from international sales when it calculated the amount of the business-license taxes. P.J. Lumber argued that the use of revenue from exported goods in calculating the taxes ran afoul of the Import-Export Clause of the United States Constitution.

The facts in this case are not disputed. The record demonstrates that P.J. Lumber, whose principal place of business is within the geographical limits of the city, sells lumber both within the United States and internationally. From 2009 through 2014, P.J. Lumber paid the city business-license taxes, the amount of which was based on P.J. Lumber's gross revenue, including domestic and foreign sales. On October 21, 2015, P.J. Lumber submitted to the city a request for a refund of the business-license taxes it had paid that had been based on foreign sales. P.J. Lumber calculated that it was owed a refund of $21,855.02 for the years 2009 through 2014. The city did not respond to P.J. Lumber's request. Therefore, the request was deemed denied six months later, on April 21, 2016. § 11-51-191(g)(3), Ala. Code 1975.

P.J. Lumber appealed the city's denial of the refund to the circuit court on May 11, 2016. When the city had not timely responded to P.J. Lumber's appeal, P.J. Lumber filed a motion for a default judgment on July 6, 2016. On July 14, 2016, the circuit court entered a default judgment against the city. On July 28, 2016, the city filed a motion to vacate the default judgment, asserting that the "matter was inadvertently not forwarded from the [city] Clerk's office to the municipal insurance carrier." The circuit court granted the city's motion and vacated the default judgment on August 10, 2016. P.J. Lumber did not file a motion in the circuit court to challenge the decision to vacate the default judgment, and the litigation proceeded.

P.J. Lumber and the city filed competing motions for a summary judgment. On January 16, 2017, the circuit court entered a partial summary judgment in favor of the city finding that P.J. Lumber's request for a refund for the years 2009 through 2012 was time-barred. The circuit court directed the city to brief the issue of whether the amount of business-license taxes assessed against P.J. Lumber could be based at least in part on revenue generated from P.J. Lumber's foreign sales. On May 3, 2017, after considering the arguments of the parties, the circuit court entered a judgment determining that the business-license taxes that the city had levied on P.J. Lumber did not violate the United States Constitution and that P.J. Lumber was not owed a refund. P.J. Lumber timely appealed to the Alabama Supreme Court, which transferred the appeal to this court because original appellate jurisdiction lies with this court. § 12-3-10, Ala. Code 1975.

P.J. Lumber first contends that the circuit court abused its discretion by setting aside the default judgment. The record shows that this issue was never raised before the circuit court and is therefore not preserved for this court's review. " '[I]t is a well-settled rule that an appellate court's review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.' " Neal v. Neal, 856 So.2d 766, 778 (Ala. 2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994) ).

In its reply brief, P.J. Lumber asserts that it first addressed "the issue" when it filed its motion requesting the default judgment. It then states, "[t]here is no implied waiver of the relief that P.J. Lumber already sought (and received)." However, filing a motion to request a default judgment and challenging the circuit court's decision to set aside a default judgment are two separate things occurring at separate steps of the litigation. In Head v. Triangle Construction Co., 274 Ala. 519, 522, 150 So.2d 389, 392 (1963), our supreme court explained the reason for requiring an objection to be raised in the trial court to preserve an issue for appellate review:

"The general rule is that the appellate court will review only questions that are raised by the record. This rule is premised on the doctrine that the trial court should first have the opportunity to rule on all points. The duty of an appellate court is to review the action of the lower court to ascertain whether or not error was committed; it is not to entertain any issue whatsoever that parties wish to raise. All reviewable matters stem solely from the record.
Hamilton Motor Co. v. Cooner, [254 Ala. 422, 47 So.2d 270 (1950) ] ; Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 [ (1960) ] ; McElhaney v. Singleton, 270 Ala. 162, 117 So.2d 375 [ (1960) ]; State v. Moore, 269 Ala. 20, 110 So.2d 635 [ (1959) ]. And it has been stated by this court that it would review a case only on the same theory that was presented to the trial court. Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So.2d 695 [ (1960) ]."

It is axiomatic that "[t]his Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ; Shiver v. Butler Cty. Bd. of Educ., 797 So.2d 1086, 1089 (Ala. Civ. App. 2000) (holding that an appellate court will not consider an issue on which the trial court was not given the opportunity to rule). Because "[i]t is well settled that an appellate court may not hold a trial court in error in regard to theories or issues not presented to that court," Allsopp v. Bolding, 86 So.3d 952, 962 (Ala. 2011), we will not reverse the judgment of the circuit court on this ground.

Turning to the merits of the other arguments made in P.J. Lumber's brief on appeal, we note that our standard when reviewing a summary judgment is as follows:

"We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing 'that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.' Rule 56(c)(3) ; see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets that burden, 'the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence." ' Lee, 592 So.2d at 1038 (footnote omitted). '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ; see Ala. Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000) ; and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala. 1991).

Bailey v. Jacksonville Health & Rehab. Ctr., 249 So.3d 499, 501 (Ala. Civ. App. 2017). In this matter, the evidence was undisputed. Therefore, we review this matter to determine whether the city was entitled to a judgment as a matter of law.

P.J. Lumber does not challenge the circuit court's ruling that its request for a refund of a portion of the business-license taxes it paid for 2009 through 2012 was barred by the applicable statute of limitations. However, P.J. Lumber says, it still believes it is entitled to a refund in the amount of $5,385.40 for business-license taxes it paid in 2013 and 2014. In requesting the refund from the city, P.J. Lumber asserted that the city had improperly included gross revenues from its export sales to calculate the business-license taxes because, P.J. Lumber said, the Import-Export Clause of the United States Constitution prohibits the city from taxing exports.

In the judgment, the circuit court specifically found that the city's business-license tax was not a prohibited impost or duty. The Import-Export Clause, Art. I, § 10, cl. 2, of the United States Constitution, provides, in pertinent part: "No State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws ...."

On appeal, P.J. Lumber contends that the only applicable authority supports its position that, pursuant to the Import-Export Clause, the city could not levy a business-license tax based on the gross receipts of goods that P.J. Lumber exported. In making this argument, P.J. Lumber cites a number of cases decided before 1976, when, in Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976), the United States Supreme Court "initiated a different approach to Import-Export Clause cases." Department of Revenue of State of Washington v. Association of Washington Stevedoring Cos., 435 U.S. 734, 752, 98 S.Ct. 1388, 55 L.Ed.2d 682 (1978). With the change in approach announced in Michelin, the authority that P.J. Lumber relies on to support its contentions are no longer valid. In fact, in Washington Stevedoring, the United States Supreme Court noted that the reliance by one of the parties in that case on Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80 (1946), the case on which P.J. Lumber primarily relies, "ignores the central holding of Michelin that the absolute ban is only of 'Imposts or Duties' and not of all taxes." Washington Stevedoring, 435 U.S. at 759, 98 S.Ct. 1388.

The United States Supreme Court pointed out in Washington Stevedoring that, before Michelin, "cases had assumed that all taxes on imports and exports and on the importing and exporting process were banned by the [Import-Export] Clause." 435 U.S. at 752, 98 S.Ct. 1388. However, in Michelin, the Supreme Court "analyzed the nature of the tax to determine whether it was an 'Impost or Duty,' " id., and, "for the first time," determined "which taxes fell within the absolute ban on 'Imposts or Duties.' " Id. at 751, 98 S.Ct. 1388. In Michelin, the Supreme Court concluded that a nondiscriminatory ad valorem property tax was "not the type of state exaction which the Framers of the Constitution or the [Supreme] Court in Brown [ v. Maryland, 25 U.S. (12 Wheat.) 419, 6 L.Ed. 678 (1827),] had in mind as being an 'impost' or 'duty.' " 423 U.S. at 283, 96 S.Ct. 535. The Michelin Court examined the history of the Import-Export Clause to devise an analysis by which to determine the types of taxes that were meant to be included in the prohibition of "Imposts or Duties" on imports and exports. The Supreme Court wrote:

"The Framers of the Constitution ... sought to alleviate three main concerns by committing sole power to lay imposts and duties on imports in the Federal Government, with no concurrent state power: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.
"Nothing in the history of the Import-Export Clause even remotely suggests that a nondiscriminatory ad valorem property tax which is also imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. For such an exaction, unlike discriminatory state taxation against imported goods as imports, was not regarded as an impediment that severely hampered commerce or constituted a form of tribute by seaboard States to the disadvantage of the other States.
"It is obvious that such nondiscriminatory property taxation can have no impact whatsoever on the Federal Government's exclusive regulation of foreign commerce, probably the most important purpose of the Clause's prohibition. By definition, such a tax does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation.
"Nor will such taxation deprive the Federal Government of the exclusive right to all revenues from imposts and duties on imports and exports, since that right by definition only extends to revenues from exactions of a particular category; if nondiscriminatory ad valorem taxation is not in that category, it deprives the Federal Government of nothing to which it is entitled. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth; there is no reason why an importer should not bear his share of these costs along with his competitors handling only domestic goods. The Import-Export Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies. See, e.g., May v. New Orleans, 178 U.S. 496, 502-504, 507-509, 20 S.Ct. 976, 44 L.Ed. 1165 (1900). It may be that such taxation could diminish federal impost revenues to the extent its economic burden may discourage purchase or importation of foreign goods. The prevention or avoidance of this incidental effect was not, however, even remotely an objective of the Framers in enacting the prohibition. Certainly the Court in Brown[ v. Maryland ] did not think so. See 12 Wheat. [419], at 443-444, 6 L.Ed. 678 [ (1827) ]. Taxes imposed after an initial sale, after the breakup of the shipping packages, or the moment goods imported for use are committed to current operational needs are also all likely to have an incidental effect on the volume of goods imported; yet all are permissible. See, e.g., Waring v. The Mayor, 8 Wall. 110, 19 L.Ed. 342 (1869) (taxation after initial sale); May v. New Orleans, supra (taxation after breakup of shipping packages); Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534, 79 S.Ct. 383, 3 L.Ed.2d 490 (1959) (taxation of goods committed to current operational needs by manufacturer). What those taxes and nondiscriminatory ad valorem property taxes share, it should be emphasized, is the characteristic that they cannot be selectively imposed and increased so as substantially to impair or prohibit importation.
"Finally, nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the States, as did the exactions by States under the Articles of Confederation directed solely at imported goods. ... To be sure, allowance of nondiscriminatory ad valorem property taxation may increase the cost of goods purchased by 'inland' consumers. But as already noted, such taxation is the quid pro quo for benefits actually conferred by the taxing State. There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods. An evil to be prevented by the Import-Export Clause was the levying of taxes which could only be imposed because of the peculiar geographical situation of certain States that enabled them to single out goods destined for other States. In effect, the Clause was fashioned to prevent the imposition of exactions which were no more than transit fees on the privilege of moving through a State. A nondiscriminatory ad valorem property tax obviously stands on a different footing, and to the extent there is any conflict whatsoever with this purpose of the Clause, it may be secured merely by prohibiting the assessment of even nondiscriminatory property taxes on goods which are merely in transit through the State when the tax is assessed."

Michelin, 423 U.S. at 285-90, 96 S.Ct. 535 (footnotes omitted).

Washington Stevedoring, supra, involved the issue of whether Washington's business and occupation tax applied to stevedores, who loaded and unloaded cargo from ships, i.e., who handled exported and imported goods. The United States Supreme Court applied the Michelin analysis to determine that the tax as applied to stevedores "violate[d] none of the constitutional policies identified in Michelin." Washington Stevedoring, 435 U.S. at 761, 98 S.Ct. 1388. The United States Supreme Court explained that,

"[f]irst, the tax does not restrain the ability of the Federal Government to conduct foreign policy. As a general business tax that applies to virtually all businesses in the State, it has not created any special protective tariff. The assessments in this case are only upon business conducted entirely within Washington. No foreign business or vessel is taxed. Respondents, therefore, have demonstrated no impediment posed by the tax upon the regulation of foreign trade by the United States.
"Second, the effect of the Washington tax on federal import revenues is identical to the effect in Michelin. The tax merely compensates the State for services and protection extended by Washington to the stevedoring business. Any indirect effect on the demand for imported goods because of the tax on the value of loading and unloading them from their ships is even less substantial than the effect of the direct ad valorem property tax on the imported goods themselves.
"Third, the desire to prevent interstate rivalry and friction does not vary significantly from the primary purpose of the Commerce Clause. See P. Hartman, State Taxation of Interstate Commerce 2-3 (1953). The third Import-Export Clause policy, therefore, is vindicated if the tax falls upon a taxpayer with reasonable nexus to the State, is properly apportioned, does not discriminate, and relates reasonably to services provided by the State. As has been explained ..., the record in this case, as presently developed, reveals the presence of all these factors.
"Under the analysis of Michelin, then, the application of the Washington business and occupation tax to stevedoring violates no Import-Export Clause policy and therefore should not qualify as an 'Impost or Duty' subject to the absolute ban of the Clause."

Washington Stevedoring, 435 U.S. at 754-55, 98 S.Ct. 1388.

The United States Supreme Court also took the opportunity in Washington Stevedoring to clarify its intention that

"the Michelin approach should apply to taxation involving exports as well as imports. The prohibition on the taxation of exports is contained in the same Clause as that regarding imports. The export-tax ban vindicates two of the three policies identified in Michelin. It precludes state disruption of the United States foreign policy. It does not serve to protect federal revenues, however, because the Constitution forbids federal taxation of exports. U.S. Const., Art. I, § 9, cl. 5 ; see United States v. Hvoslef, 237 U.S. 1, 35 S.Ct. 459, 59 L.Ed. 813 (1915). But it does avoid friction and trade barriers among the States. As a result, any tax relating to exports can be tested for its conformance with the first and third policies. If the constitutional interests are not disturbed, the tax should not be considered an 'Impost or Duty' any more than should a tax related to imports. This approach is consistent with Canto R. Co. [v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488 (1951) ], which permitted taxation of income from services connected to both imports and exports. The respondents' gross receipts from loading exports, therefore, are as subject to the Washington business and occupation tax as are the receipts from unloading imports."

435 U.S. at 758, 98 S.Ct. 1388 (footnotes omitted).

The tax at issue in this case is the city's business-license tax. In City of Pinson v. Utilities Board of Oneonta, 986 So.2d 367, 371-72 (Ala. 2007), our supreme court set forth the authority for and purpose of the business-license tax, writing:

"Section 11-51-90 expressly permits municipalities 'to impose[ ] the tax or license fee in return for the privilege of engaging in a trade, occupation or profession in the [municipality] and for being afforded the benefit of the facilities of the [municipality] while in the pursuit of that business.' McPheeter v. City of Auburn, 288 Ala. 286, 290, 259 So.2d 833, 835 (1972) (interpreting the predecessor statute to § 11-51-90); see also American Bankers Life Assurance Co. of Florida v. City of Birmingham, 632 So.2d 450, 452 (Ala. 1993) ('The State of Alabama authorizes municipalities to impose business license fees upon businesses, trades, and professions for the privilege of conducting business within the city or town.'). Thus, although a tax ordinance might measure the amount of tax owed based on the gross receipts of the Utilities Board, the subject of a license or privilege tax is not the 'purchase, sale, use, or consumption of property'; instead, the subject of the tax is the privilege of conducting or the opportunity to conduct a business in the municipal limits or within a municipality's police jurisdiction."

P.J. Lumber challenges the business-license tax to the extent that the amount assessed includes gross receipts on exported goods. Because P.J. Lumber's challenge involves only the receipts on exports, we apply the first and third of the policy considerations set forth in Michelin to determine if the tax is of the type contemplated by the Import-Export Clause. Washington Stevedoring, 435 U. S. at 758, 98 S.Ct. 1388. The first consideration, whether the business-license tax restrains the ability of the federal government to conduct foreign policy, is not triggered. The undisputed evidence reveals that the business-license tax is a nondiscriminatory tax applied to all businesses operating within the geographical limits of the city regardless of whether a business imports or exports goods. P.J. Lumber has not shown that the tax created a special protective tariff. There is no evidence indicating that the business-license tax, imposed for the privilege of operating a business within the geographical limits of the city, impedes in any way the regulation of foreign trade.

The third policy consideration, whether the business-license tax affects harmony among the states, is similarly not affected by the tax. P.J. Lumber has not shown that the city's business-license tax creates interstate rivalry or friction between the states, although the nondiscriminatory business-license tax, assessed against all of the businesses operating within the geographical limits of the city, albeit at different rates, may increase the cost of goods purchased by consumers. As the United States Supreme Court stated in Michelin,

"as already noted, such taxation is the quid pro quo for benefits actually conferred by the taxing State [or municipality]. There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods."

423 U.S. at 289, 96 S.Ct. 535. Under P.J. Lumber's argument, if it exported all of its goods, it would expect to be exempt from paying any amount based on its gross receipts. In that scenario, P.J. Lumber would still be able to take advantage of city services without paying its proportional share for those services.

The nondiscriminatory business-license tax has no impact on the federal government's regulation of foreign commerce, nor does it interfere with the flow of goods among the states. Accordingly, we hold that the amount P.J. Lumber must pay for the city's business-license tax, which is based in part on P.J. Lumber's gross receipts for exported goods, is not an impost or duty of the type contemplated by the Import-Export Clause and, thus, does not violate the United States Constitution. The circuit court correctly found that the business-license tax is not a prohibited impost or duty and does not frustrate the purposes of the Import-Export Clause. Thus, the circuit court's judgment determining that, as a matter of law, P.J. Lumber is not entitled to a partial refund on the amount of taxes it paid to the city is due to be affirmed.

Because we hold that the city's business-license tax is constitutional and that P.J. Lumber was required to pay the full amount of the taxes assessed, we pretermit discussion of P.J. Lumber's contention that it did not "voluntarily" pay the taxes and is therefore entitled to a partial refund of the amount paid.

For the reasons set forth above, the judgment is due to be affirmed. The city's motion to strike a portion of P.J. Lumber's reply brief on appeal is granted to the extent that the complained of portion of the brief raised an argument not made in its original brief on appeal.

AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The city's business-license-tax schedule indicates that the cost of the license for a retail lumber dealer or a lumber yard, defined as "a person, firm, or corporation engaged in the business of selling lumber and lumber projects in retail quantities direct to consumers or contractors," is $150 plus .001590 of gross receipts.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    M.M. and R.F. v. K.J.Z. and E.M.Z.
    2160520 2160521
    Court of Civil Appeals of Alabama.
    September 29, 2017
    Lois Beasley-Carlisle of Carlisle & Carlisle, P.C., Birmingham; and Keith W. Veigas, Jr., Morris, for appellants.
    William K. Bradford of Bradford Ladner, LLP, Mountain Brook, for appellees.
   THOMAS, Judge.

M.M. ("the father") and R.F. ("the paternal great-grandmother") seek review of the judgment dismissing their Rule 60(b), Ala. R. Civ. P., motions, which sought to have set aside the judgments entered by the Jefferson Probate Court ("the probate court") granting the petitions of K.J.Z. ("the adoptive father") and E.M.Z. ("the adoptive mother") to adopt M.R.M. and S.M. ("the children"), the children of the father and M.J.S. ("the mother"). We reverse the judgment of the probate court.

In February 2016, in case number CS-15-900438.01 ("the custody case"), the Jefferson Juvenile Court ("the juvenile court") entered a judgment awarding the paternal great-grandmother, the father, and the mother joint custody of the children pursuant to an agreement between those parties. The February 2016 judgment modified an earlier judgment of the juvenile court. The record indicates that the adoptive mother appeared in the custody case as an attorney for the father, who is her nephew.

In April 2016, the adoptive mother filed in the juvenile court verified ex parte emergency petitions for custody of each child; those petitions were assigned case number JU-16-659.01 and case number JU-16-660.01, respectively ("the dependency petitions"). In the dependency petitions, the adoptive mother alleged that the mother and the father had abandoned the children in 2014 and 2015, respectively; that the children were presently in the custody of the paternal great-grandmother; that the Department of Human Resources was investigating sexual-abuse allegations made against the paternal great-grandmother's live-in paramour, C.H.; that the paternal great-grandmother had one or more indicated cases of physical abuse relating to her abuse of one of her own children and a grandson; and that the children's paternal grandmother, Me.M., who also resided with the paternal great-grandmother, had a history of drug-related charges and had a pending criminal charge. The juvenile court held a hearing on the dependency petitions on April 11, 2016, at which the adoptive mother and the paternal great-grandmother appeared; neither the mother nor the father appeared. After the hearing, the juvenile court entered an order awarding what it described as ex parte custody of the children to the adoptive mother. The mother, the father, and the paternal great-grandmother were awarded visitation rights, and a hearing was set for June 28, 2016. Despite the allegations of abandonment the adoptive mother had relied upon in the dependency petitions, the adoptive mother, with the assistance of law enforcement, retrieved the children from the custody of the father.

On May 10, 2016, the adoptive mother and the adoptive father, armed with the ex parte custody order, filed in the probate court petitions seeking to adopt the children. In the petitions, the adoptive mother and the adoptive father indicated that the whereabouts of the mother were unknown; they listed an address for service of the father. However, the adoptive mother and the adoptive father also filed an affidavit stating that they had exhausted all known means to locate the mother and the father; as a result, the mother and the father were served by publication. No notices of the adoption actions were served on the paternal great-grandmother. Thus, neither the mother, nor the father, nor the paternal great-grandmother appeared in the adoption actions or contested the proposed adoptions. The probate court entered final judgments of adoption on August 23, 2016.

On September 1, 2016, the juvenile court held a hearing in the dependency cases. On that same date it entered an order that, among other things, awarded visitation to the paternal great-grandmother, the mother, and the father. The order also indicated that the dependency cases would be set for a dependency trial, although the date of that trial was "to be determined." On or about September 12, 2016, the adoptive mother filed in the juvenile court a motion to dismiss the dependency cases, explaining in the motion that the children had been adopted and attaching the August 23, 2016, adoption judgments.

On September 23, 2016, the father and the paternal great-grandmother filed joint motions in the probate court, one in each adoption action, seeking to contest the adoptions and to have the adoption judgments set aside based, in part, on fraud they alleged had been committed on them and on the court by the adoptive mother. In addition, they contended in those motions that their due-process rights had been violated because they had not received notice of the pending adoptions. Thus, although not labeled as such, the motions were filed pursuant to Rule 60(b). See Ex parte Lang, 500 So.2d 3, 4 (Ala. 1986) (construing a motion as a Rule 60(b) motion based on its substance). On October 3, 2016, the adoptive mother moved to dismiss the Rule 60(b) motions, arguing that the contests were untimely, that the father had been properly served by publication, and that the paternal great-grandmother lacked "standing" to file contests to the adoptions.

The father and the paternal great-grandmother filed "verified" responses to the motions to dismiss; however, only the paternal great-grandmother verified the responses. In the responses, the paternal great-grandmother stated specifically that she had had custody of the children by virtue of the February 2016 judgment in the custody case and that she, therefore, was entitled to notice of the adoption actions. In addition, the father and the paternal great-grandmother presented documents purporting to be text messages between the father and the adoptive mother during April 2016, indicating that the adoptive mother had had a means of contacting the father to determine his whereabouts, and otherwise contended that the adoptive mother had committed fraud on the mother, the father, the paternal great-grandmother, and both the juvenile court and the probate court.

On February 24, 2017, the probate court, without holding an evidentiary hearing, entered a single judgment, which was entered in both adoption actions, dismissing the Rule 60(b) motions filed by the father and the paternal great-grandmother. In that judgment, the probate court stated that the paternal great-grandmother lacked "standing" to contest the adoptions and found that the father had been properly served by publication. The probate court apparently further concluded that the motions were untimely because they had been filed "outside the 14-day appeal time following a final [judgment] of adoption." Thus, the order granted the adoptive mother's motion to dismiss the Rule 60(b) motions.

As noted above, the father and the paternal great-grandmother seek review of the judgment dismissing their Rule 60(b) motions. They filed petitions for the writ of mandamus in this court on April 7, 2017. However, because review of an order denying a Rule 60(b) motion is by appeal, see T.K.W. v.State Dep't of Human Res. ex rel. J.B., 119 So.3d 1187, 1194 (Ala. Civ. App. 2013), this court has elected to treat their petitions as appeals. See Weaver v. Weaver, 4 So.3d 1171, 1173 (Ala. Civ. App. 2008).

The probate court's conclusion that the Rule 60(b) motions were untimely is clearly incorrect. The motions were filed on September 23, 2016, approximately one month after the entry of the adoption judgments. Insofar as the motions alleged that the adoptive mother had committed fraud, the motions were Rule 60(b)(3) motions, which must be filed within four months of the entry of the challenged judgments. Insofar as the motions alleged that the adoption judgments should be set aside because of a lack of due process, the motions sought relief under Rule 60(b)(4) on the basis that the adoption judgments were void, see Lett v. Weaver, 79 So.3d 625, 627 (Ala. Civ. App. 2010) (construing a challenge to a lack of statutory notice as an argument that a judgment was void for lack of due process under Rule 60(b)(4) ), and a motion seeking relief from a void judgment may be brought at any time. Ex parte McCrory & Williams, Inc., 155 So.3d 1018, 1020 (Ala. Civ. App. 2014). The motions were timely filed.

" 'The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. ("the judgment is void"), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988). "If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process." SeventhWonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978) (emphasis added).' "

L.T. v. W.L., 159 So.3d 1289, 1291 (Ala. Civ. App. 2014) (quoting Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala. 2003) ). Furthermore,

"[o]ne who contends that an adverse party has obtained a verdict through fraud, misrepresentation, or other misconduct ( Rule 60(b)(3) ) must prove by 'clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case. [Citation omitted.] The resolution of these two issues is within the trial court's discretion, and on review, our only inquiry is whether the trial court abused its discretion.' "

Pacifico v. Jackson, 562 So.2d 174, 179 (Ala. 1990) (quoting Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir. 1979) ).

The probate court's conclusion that the paternal great-grandmother lacked "standing" to contest the adoptions is also incorrect. We first note, as we have before, that

"[o]ur supreme court has indicated, in two plurality opinions, that a majority of the supreme court recognized in Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 46 (Ala. 2013), that the concept of standing should be confined to public-law cases. See Gardens at Glenlakes Prop. Owners Ass'n, Inc. v. Baldwin Cty. Sewer Serv., LLC, 225 So.3d 47, ---- (Ala. 2016), and Jakeman v. Lawrence Grp. Mgmt. Co., LLC, 151 So.3d 1083, 1087-88 (Ala. 2014). As explained in Jakeman, 'in private-law cases such questions as whether " 'the present plaintiff is ... entitled to a remedy' " is " 'better addressed through private-law concepts' " such as " 'cause-of-action, real-party-in-interest, capacity, intervention, and like concepts.' " ' Jakeman, 151 So.3d at 1088 (quoting Ex parte BAC, 159 So.3d at 44-45, quoting in turn 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 (3d ed. 2008) ).

Ex parte Gentry, 228 So.3d 1016, 1020 (Ala. Civ. App. 2017).

We perceive the challenge to "standing" as an argument that the paternal great-grandmother had no cognizable claim in the adoption actions, i.e., had no right to be made a party to or to challenge the adoptions. See Ex parte J.W.B., 230 So.3d 783, 800 n.16 (Ala. 2016) (Murdock, J., dissenting) ("The probate court's reference to 'standing' is in error because that concept is 'out of place in private-law cases.' Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 44 (Ala. 2013). The issue is not one of 'standing' but simply whether the father had a cognizable claim to contest the adoption under the applicable facts and law."). As a person having the right to custody or visitation with the children, the paternal great-grandmother was entitled to receive notice of the pendency of the adoption actions pursuant to Ala. Code 1975, § 26-10A-17(a)(6). A person entitled to notice of the pendency of an adoption action is also entitled to contest that adoption. See § 26-10A-17(b) ("The notice shall specifically state that the person served [the notice required by § 26-10A-17(a) ] must respond to the petitioner within 30 days if he or she intends to contest the adoption."). Thus, the paternal great-grandmother has a cognizable claim to contest the adoptions, and the probate court erred in concluding that she lacked the rights to receive notice of, and to participate in, the adoption actions and to contest the adoptions.

" ' "It is well settled that adoption is purely statutory, unknown to the common law, and that strict statutory adherence is required." ' " L.T., 159 So.3d at 1291 (quoting Ex parte S.C.W., 826 So.2d 844, 849 (Ala. 2001), quoting in turn in S.C.W. v. C.B., 826 So.2d 825, 842 (Ala. Civ. App. 2001) (Crawley, J., dissenting)). Furthermore, we note that judgments entered in a manner inconsistent with due process are void. See Holt v. Limestone Cty. Dep't of Human Res., 226 So.3d 201, ----(Ala. Civ. App. 2016). The failure of the adoptive mother and the adoptive father to give notice of the adoption actions to the paternal great-grandmother as required by § 26-10A-17(a)(6) violated the paternal great-grandmother's due-process rights, and the adoption judgments are therefore void. See M.M. v.D.P., 10 So.3d 605, 608 (Ala. Civ. App. 2008) (holding void an adoption judgment where the probate court failed to give notice of the pendency of an adoption action to a presumed father); Ex parte Stinson, 532 So.2d 636 (Ala. Civ. App. 1988) (holding void an adoption judgment entered without notice to a paternal grandmother under former adoption statutes). Because we have concluded that the adoption judgments are void, we necessarily reverse the probate court's judgment dismissing the Rule 60(b) motions. The probate court is instructed to set aside the adoption judgments, to serve proper notice of the adoption actions on the paternal great-grandmother, and to conduct further proceedings consistent with this opinion.

Our resolution of these appeals in favor of the paternal great-grandmother does not resolve the arguments of the father, however. The probate court stated in its judgment dismissing the Rule 60(b) motions that the father had been properly served by publication. If service by publication on the father was proper, then his failure to answer the adoption petitions within 30 days of the completion of service results in his implied consent to the adoptions. Ala. Code 1975, § 26-10A-9(a)(4). Although the adoption judgments are void and the paternal great-grandmother must be given notice and an opportunity to contest the adoptions, the voidness of the adoption judgments does not change the fact that the father has been deemed to have impliedly consented to the adoptions.

In the Rule 60(b) motions, the father contended that he was not properly served by publication and therefore that his due-process rights had been infringed. We note that Ala. Code 1975, § 26-10A-17(c)(1), permits service by publication when the whereabouts of a parent are unknown and that § 26-10A-17(c)(3) permits service by publication after two attempts at service by certified mail have failed. The father, however, alleged in the Rule 60(b) motions that the adoptive mother had had available other methods by which to reach him and to determine his whereabouts. He specifically relied on the fact that the adoptive mother had personally retrieved the children from his custody when she was awarded ex parte custody in the dependency actions only one month before the adoption actions were instituted and the fact that she had had contact with the father and the paternal great-grandmother during the pendency of the dependency actions but had neglected to inform them of the adoption actions. As further support for his argument, the father provided copies of text messages purporting to be from the adoptive mother to him that he received in April 2016. Thus, the father argued to the probate court that he had evidence that would support a conclusion that the adoptive mother had not "exhausted all known means to locate ... the father" and that service by publication was therefore improper.

As noted, the probate court failed to hold a hearing on the Rule 60(b) motions. Although a court is not required to hold a hearing on a Rule 60(b) motion before ruling on that motion, especially where the motion "clearly is without substance and merely an attempt to burden the court with frivolous contentions," the failure to hold a hearing may be an abuse of discretion under certain circumstances. Waldron v. Fikes, 378 So.2d 1138, 1139 (Ala. 1979). In Snooky Hairrell Volkswagen, Inc. v. Speer, 689 So.2d 51, 54 (Ala. 1997), our supreme court explained that when the movant makes a showing that, if true, would be a basis for relief under Rule 60(b), the movant is entitled to a hearing on a Rule 60(b) motion. Thus, where the factual allegations made in support of the motion would, if true, support relief under Rule 60(b), a hearing should be held on the Rule 60(b) motion. Speer, 689 So.2d at 54 ; see also United States v. City of Fort Smith, 760 F.2d 231 (8th Cir. 1985) (explaining that, where the circumstances of the case indicate that a hearing would assist the court in exploring the facts underlying the request for relief and allow the moving party a fair opportunity to prove the factual accuracy of its claim that the judgment should be set aside, the failure to hold a hearing is an abuse of discretion); Clarke v. Burkle, 570 F.2d 824 (8th Cir. 1978) (same); and Residential Funding Co. v. Thorne, 973 N.E.2d 294, 305 (Ohio App. 2012) (quoting Coulson v. Coulson, 5 Ohio St. 3d 12, 16, 448 N.E.2d 809, 812 (1983), quoting in turn Adomeit v. Baltimore, 39 Ohio App. 2d 97, 103, 316 N.E.2d 469, 476 (1974) (" ' "If the movant files a motion for relief from judgment and it contains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these facts before it rules on the motion." ' ").

In the present case, the Rule 60(b) motions contain serious allegations regarding the adoptive mother's level of diligence in seeking the whereabouts of the father for purposes of perfecting service in the adoption actions. The probate court could not have concluded that service on the father was properly perfected by publication in the adoption actions without hearing from the parties about what service was attempted, especially because, as noted, the record does not reflect that service by publication was warranted under § 26-10A-17(c)(3) because there is no proof that service by certified mail had been attempted twice and had failed. See note 1, supra. Moreover, the probate court could not have effectively considered whether, as the father contended, the adoptive mother was in contact with him when she stated in her affidavit regarding perfecting service that she "had exhausted all known means to locate ... the father." The father's allegations, if proven, would support a determination that the father's due-process rights were violated, that any consent implied by his failure to appear in the adoption actions was invalid, and that he, therefore, should be permitted to appear in the adoption actions and to contest the adoptions. See, generally, Boudreaux v. Kemp, 49 So.3d 1190, 1196 (Ala. 2010) (quoting Reid v. Tingle, 716 So.2d 1190, 1195 (Ala. Civ. App. 1997), quoting in turn Shaddix v. Shaddix, 603 So.2d 1096, 1098 (Ala. Civ. App. 1992) ) (stating that the " ' "[f]ailure to exercise due diligence in perfecting personal service of process precluded notice by publication" ' "). Accordingly, under the facts and circumstances of these cases, we conclude that the probate court erred by not holding a hearing on the father's allegations regarding service in the Rule 60(b) motions and that, therefore, its determination that service by publication was proper in the adoption actions cannot be upheld. Accordingly, the probate court is instructed to hold a hearing on the father's allegations regarding service in the Rule 60(b) motions, to determine, based on the evidence adduced at that hearing, whether service on the father by publication was proper in the adoption actions, and to conduct further proceedings in accordance with that finding.

2160520-REVERSED AND REMANDED WITH INSTRUCTIONS.

2160521-REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      In their brief on appeal, the adoptive mother and the adoptive father state that service by certified mail was attempted on the father. The record contains no certified mail receipts or other indication that service was attempted. In their verified answers to the Rule 60(b) motions, the adoptive mother and the adoptive father state that "[a]ttempted service was made to [the father's] last known address in Docena .... Said mail was returned on or about May 19, 2016[,] stating that 'Return to Sender, Vacant.' " Those statements do not indicate that certified mail was used to serve the father; nor do they indicate that two attempts to serve the father by certified mail were made. See Ala. Code 1975, § 26-10A-17(c)(3) (permitting the probate court to order service by publication when two attempts to serve by certified mail have been attempted and have failed).

      In their appellate brief, the adoptive mother and the adoptive father contend that Rule 60(b) does not authorize relief from a judgment based on fraud between the parties. Instead, they state, only fraud on the court may serve as a basis for setting aside a judgment. To the contrary, Rule 60(b)(3) specifically authorizes a court to set aside a judgment on the ground that one of the parties obtained that judgment through "fraud ..., misrepresentation, or other misconduct" committed on another party. See, e.g., Smith v. Smith, 668 So.2d 846, 847 (Ala. Civ. App. 1995) (affirming the grant of a Rule 60(b)(3) motion based on the fraudulent execution of settlement agreement). As our supreme court has explained, if a motion seeking to set aside a judgment based on fraud is not timely filed, the judgment may be set aside only for fraud on the court. See Pacifico v. Jackson, 562 So.2d 174, 179 (Ala. 1990). However, as we explain infra, the Rule 60(b) motions in the present cases were timely filed.


text:
    James Leif DICKINSON v. Emily Harriette BURTON, Harry Northington, and Elizabeth G. Northington
    2160539
    Court of Civil Appeals of Alabama.
    September 29, 2017
    William K. Bradford of Bradford Ladner, LLP, Mountain Brook, for appellant.
    Glenn Carlyle Noe, Vernon, for appellees Harry Northington and Elizabeth G. Northington.
   THOMPSON, Presiding Judge.

On October 27, 2015, James Leif Dickinson filed in the Lamar Circuit Court ("the trial court") an action seeking to establish the paternity of a child born of his relationship with Emily Harriette Burton ("the mother"). In his complaint, Dickinson sought an award of custody of the child and an award of child support. The mother answered and counterclaimed, also seeking an award of custody of the child and child support.

The trial court entered an April 19, 2016, order awarding the mother pendente lite custody of the child, awarding Dickinson visitation, and ordering Dickinson to pay child support. In July 2016, Dickinson filed a motion to modify the April 19, 2016, pendente lite custody order; he alleged in that motion that the mother had been arrested on drug charges. On July 21, 2016, the trial court awarded Dickinson pendente lite custody of the child.

On August 10, 2016, Harry Northington and Elizabeth G. Northington, the child's maternal grandparents, moved to intervene in the action and sought an award of visitation with the child. The trial court entered an order on August 11, 2016, allowing the maternal grandparents to intervene.

On August 17, 2016, the trial court entered an order, based on an agreement of the parties and ore tenus testimony, in which it adjudicated Dickinson (hereinafter "the father") as the father of the child and awarded him sole custody of the child. In that order, the trial court reserved jurisdiction over the issues of child support and visitation. Also on August 17, 2016, the trial court entered an order awarding the maternal grandparents pendente lite visitation with the child.

On September 1, 2016, the father answered the maternal grandparents' visitation claim, asserted in their motion to intervene, by denying that the maternal grandparents were entitled to relief.

The trial court conducted an ore tenus hearing. On November 16, 2016, the trial court entered a "visitation order" in which it awarded the maternal grandparents a schedule of visitation with the child that resembles the standard schedule of visitation awarded to a noncustodial parent. The father filed a purported postjudgment motion. See Malone v. Gainey, 726 So.2d 725, 725 n.2 (Ala. Civ. App. 1999) (a valid postjudgment motion may be taken only in reference to a final judgment). Had that motion been taken from a final judgment, it would have been denied by operation of law on February 28, 2017. The father filed a notice of appeal on April 10, 2017, within 42 days of February 28, 2017, i.e., the date the purported postjudgment motion would have been denied by operation of law. See Rule 4(a)(3), Ala. R. App. P.

However, the trial court's November 16, 2016, order did not address the pending issues of child support or a visitation award to the mother. Thus, that order was not a final judgment capable of supporting the appeal. Ex parte Williams, 185 So.3d 1106, 1109 (Ala. Civ. App. 2015) ("A trial court's failure to determine an amount of child support owed by a party does ... render a judgment nonfinal."); Edwards v. Edwards, 951 So.2d 699, 700 (Ala. Civ. App. 2006).

The father's appeal is taken from a nonfinal order. Accordingly, we must dismiss the appeal. See T.H. v. Jefferson Cty. Dep't of Human Res., 100 So.3d 583, 586 (Ala. Civ. App. 2012) ("When an appeal is taken from a nonfinal order, the appeal must be dismissed."). We note that this court may not treat this appeal as a petition for a writ of mandamus, because it was filed well outside the presumptively reasonable time for seeking mandamus relief-i.e., it was not filed within 42 days of the entry of the November 16, 2016, order. See Meadwestvaco Corp. v. Mitchell, 195 So.3d 290, 295 (Ala. Civ. App. 2015) (declining to treat an appeal of an interlocutory order as a petition for a writ of mandamus because it was not timely filed as a petition for a writ of mandamus); State Dep't of Human Res. ex rel. Bowen v. Bowen, 958 So.2d 901, 903-04 (Ala. Civ. App. 2006) (same).

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.