author: MENDHEIM, Justice.

text:
    AURORA HEALTHCARE, INC., et al. v. Sharon RAMSEY, as Administratrix of the Estate of Mary Pettway, Deceased
    Sharon Ramsey, as Administratrix of the Estate of Mary Pettway, Deceased v. Aurora Healthcare, Inc., et al.
    1160659 1160726
    Supreme Court of Alabama.
    July 27, 2018
    R. Gordon Sproule, Jr., and J. Bart Cannon of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellants/cross-appellees Aurora Healthcare, Inc., et al.
    Samuel Fisher and Sidney M. Jackson of Wiggins, Childs, Pantazis, Fisher & Goldfarb, LLC, Birmingham, for appellee/cross-appellant Sharon Ramsey, as administratrix of the Estate of Mary Pettway, deceased.
   MENDHEIM, Justice.

Aurora Healthcare, Inc., and Aurora Cares, LLC, d/b/a Tara Cares (hereinafter referred to collectively as "Aurora"), and Birmingham Nursing and Rehabilitation Center East, LLC ("Birmingham East") (Aurora and Birmingham East are hereinafter referred to collectively as "the defendants"), appeal from the Jefferson Circuit Court's denial of their motion to compel arbitration of an action filed against them by Sharon Ramsey, as administratrix of the estate of her mother, Mary Pettway, who is deceased. Ramsey cross-appeals the Jefferson Circuit Court's decision denying her motion for a partial summary judgment concerning the validity of the subject arbitration agreement. We dismiss both the appeal and the cross-appeal.

I. Facts

This is the second time the circuit court's ruling on the defendants' motion to compel arbitration has come before this Court. See Aurora Healthcare, Inc. v. Ramsey, 83 So.3d 495, 497 (Ala. 2011) (" Aurora Healthcare I"). In Aurora Healthcare I, we reversed the circuit court's order denying the defendants' motion to compel arbitration. Understanding the arguments of the parties and the disposition of these appeals requires more factual context than was provided in Aurora Healthcare I.

On or about November 7, 2003, Mary Pettway, then 75 years old, was discharged from the hospital at the University of Alabama at Birmingham ("UAB Hospital"). On the same day, Pettway was admitted to a nursing home owned and operated by the defendants. During Pettway's admission to the nursing home, Ramsey met with Faye Linard, an administrative assistant, who presented Ramsey with an admissions agreement that included several documents. Ramsey alleges that Linard explained the documents to her, including a "Resident and Facility Arbitration Agreement." Ramsey refused to sign the arbitration agreement; signing it was not a prerequisite to Pettway's admission to the nursing home.

Pettway developed an infection, and, as a result, she was returned to UAB Hospital on November 16, 2003. Pettway was readmitted to the nursing home on November 26, 2003. Ramsey stated in an affidavit that late in the evening on November 26, 2003, she received a telephone call from the admissions office at the nursing home and was asked to return to the nursing home because "there were some documents that I had not signed the first time my mother was admitted and I needed to come in to sign them." Ramsey met with Birmingham East employee Brandi Harrison, who, Ramsey testified, told her that the documents were ones that "had not been completed the first time" her mother was admitted to the nursing home. Ramsey testified that Harrison did not explain each document to Ramsey. Ramsey further alleges that Harrison did not give her the opportunity to review each document, but "simply held up the corners of each document and showed me where to sign." Ramsey stated that she was not told that one of those documents was an arbitration agreement.

An arbitration agreement containing a signature with the name "Sharon Ramsey" dated November 26, 2003, appears in the record. Ramsey contends that the signature is not authentic, and she asserts that, even if it is genuine, the signature was obtained by misrepresentation. In pertinent part, the arbitration agreement provides:

"This ARBITRATION AGREEMENT ('Agreement') is executed by Birmingham East (the 'Facility') and Mary Pettway ('Resident'[ ] or 'Resident's Designated Representative', hereafter collectively referred to as 'Resident') in conjunction with the agreement for admission and for the provision of nursing facility services (the 'Admission Agreement') by the Facility to the Resident. The parties to this Agreement acknowledge and agree that upon execution, this Agreement becomes part of the Admission Agreement and that the Admission Agreement evidences a transaction in interstate commerce governed by the Federal Arbitration Act. It is understood and agreed by the Facility and the Resident that any and all claims, disputes, and controversies (hereafter collectively referred to as a 'claim' or collectively as 'claims') arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration ....
"This Agreement to arbitrate includes, without limitation, or refund for services rendered to the Resident by the Facility, violations of any right granted to the Resident by law or by the Admission Agreement, breach of contract, fraud or misrepresentation, negligence, gross negligence, malpractice, or claims based on any departure from the accepted medical or health care or safety standards, as well as any and all claims for equitable relief or claims based on contract, tort, statute, warranty, or any alleged breach, default, negligence, fraud misrepresentation, suppression of fact, or inducement....
"It is the intention of the parties to this Agreement that it shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation the agents, employees and servants of the Facility, and all persons whose claim is derived through or on behalf of the Resident, including any parent, spouse, sibling, child, guardian, executor, legal representative, administrator or heir of the Resident. The parties further intend that this Agreement is to survive the lives or existence of the parties hereto.
"....
"... If not rescinded within thirty days, this Agreement shall remain in effect for all subsequent stays at the Facility, even if the Resident is discharged from and readmitted to the Facility."

On November 28, 2003, Pettway was again transferred to UAB Hospital due to a worsening infection. Pettway was readmitted to the nursing home again on December 3, 2003. Ramsey was not asked to sign any additional documents for this third admission. Pettway died at the nursing home on December 10, 2003.

After her appointment as administratrix of Pettway's estate, Ramsey filed a complaint in the Jefferson Circuit Court on November 3, 2005, asserting against the defendants "a variety of statutory and common-law claims allegedly arising from Pettway's death, including a wrongful-death claim." 83 So.3d at 497. On November 3, 2006, the defendants filed a motion to compel arbitration. The circuit court denied the motion on June 23, 2010, finding that the defendants had waived their right to invoke arbitration based on their delay in asserting it.

In the first appeal, this Court reversed the circuit court's order, concluding that Ramsey was not prejudiced by the defendants' delay in filing their motion to compel arbitration. In remanding the case, the Court stated:

"We are unable to determine, however, whether this case is due to be arbitrated. The parties dispute whether Ramsey's signature on the arbitration agreement is authentic or forged, whether the agreement, signed subsequent to Pettway's initial admission to the nursing home, operates retroactively, and whether [Aurora], [a] nonsignator[y] to the arbitration agreement, can enforce the agreement. The circuit court did not provide findings of fact or conclusions of law as to any of those issues but denied the defendants' motion to compel solely on the basis of waiver.
"Accordingly, we reverse the circuit court's June 23, 2010, order denying the defendants' motion to compel arbitration. We remand the cause for that court to consider the motion to compel arbitration in light of the issues associated with the validity and scope of the arbitration agreement proffered by the defendants."

83 So.3d at 502-03.

Following remand, on January 27, 2012, the defendants filed in the circuit court a "Supplemental Brief and Renewed Motion to Compel Arbitration." On February 28, 2017, Ramsey filed a "Partial Motion for Summary Judgment" in which she sought a determination that the arbitration agreement was invalid based on fraud or that it was unenforceable by Aurora because Aurora was not a signatory to the arbitration agreement.

On March 15, 2017, the circuit court entered an order ruling upon the defendants' motion to compel arbitration and Ramsey's motion for a partial summary judgment. Specifically, the order examined three issues:

"1. Is the purported November 26, 2003, arbitration agreement valid?
"2. If the purported November 26, 2003, arbitration agreement is valid, can Aurora, a non-signatory, enforce it?
"3. If the purported November 26, 2003, arbitration agreement is valid and Aurora can enforce it, does it apply retroactively to November 7, 2003?"

As to the first issue, the circuit court examined the testimony in the record from Ramsey and Harrison. The circuit court concluded that "Ramsey has presented substantial evidence that her signature on the November 26, 2003, arbitration agreement was procured by fraud in factum." The circuit court also noted, however, that deposition testimony from Ramsey, in which she stated that she did not know whether the signature on the November 26, 2003, arbitration agreement was her signature,

"when considered in conjunction with Harrison's [deposition testimony,] ... prevents the Court from granting [Ramsey's motion for a partial summary judgment]. As such, the Court finds there are disputed issues of material fact concerning (1) whether Ramsey validly assented to the arbitration agreement, and (2) whether her signature on the arbitration agreement (if valid) was procured by fraud in the factum."

The circuit court elected not to confine its order to its conclusion that "a jury must decide if the arbitration agreement is valid." Instead, the circuit court explained:

"[I]n the event a jury might find the arbitration agreement is valid, in the interest of judicial economy and expeditiously moving this lawsuit along, the Court chooses to go ahead and address the contingent issues of non-signatory enforceability and retroactive enforcement." (Emphasis added.)

As to the second issue, the circuit court concluded that Aurora, as a nonsignatory, could enforce the arbitration agreement. The circuit court reasoned that the language in the arbitration agreement was "broad enough to encompass Ramsey's claims against Aurora." Specifically, the circuit court noted that the arbitration agreement stated that it applied to " 'any... dispute[ ] ... arising out of ... health care provided by the Facility to the Resident.' ... Although this underlying arbitration agreement does reference the signing parties, it does not limit applicability to disputes arising between them alone."

As to the third issue, the circuit court concluded that the arbitration agreement was effective only as of November 26, 2003, and that it was not retroactive to Pettway's original admission to the nursing home on November 7, 2003. The circuit court acknowledged that the language of the arbitration agreement was very broad, but it reasoned that "the circumstances surrounding the execution of the agreement" suggest that the parties did not intend for the November 26, 2003, arbitration agreement to apply retroactively to November 7, 2003. Specifically, the circuit court cited the undisputed evidence that Ramsey had declined to sign an arbitration agreement when she signed other admission papers on November 7, 2003. Thus, the circuit court concluded that the "Motion to Compel Arbitration is due to be DENIED, in part, as to any of Ramsey's claims arising prior to November 26, 2003."

In sum, the circuit court stated that the "Motion to Compel Arbitration, and Ramsey's Motion for Summary Judgment, are each due to be DENIED." Somewhat confusingly, however, the order followed the foregoing statement with a "Rulings" section, which stated, in part:

"Therefore, it is ORDERED, ADJUDGED, and DECREED:
"1. Defendant[s'] Motion to Compel Arbitration is HELD;
"2. Plaintiff Sharon Ramsey's Motion for Partial Summary Judgment ... is HELD ...."

(Capitalization in original.)

On April 25, 2017, the defendants appealed the circuit court's March 15, 2017, order. On May 9, 2017, Ramsey filed a cross-appeal from the same order.

On December 1, 2017, this Court's clerk's office issued a "show-cause order" to the defendants in which it noted the apparent contradiction between the circuit court's statements that the motion to compel arbitration had been "denied" and its statement that a ruling on the motion was "held." The show-cause order sought an explanation as to why the defendants' appeal of the March 15, 2017, order "should not be dismissed as taken from a nonappealable order."

Also on December 1, 2017, this Court's clerk's office issued a "remand order" to the circuit court regarding Ramsey's cross-appeal of the March 15, 2017, order denying her motion for a partial summary judgment. The remand order noted that it appeared that all claims in the case had not been adjudicated; thus, the order requested that the circuit court determine whether to:

"(1) make the interlocutory order of March 15, 2017, addressing Sharon Ramsey's motion for partial summary judgment a final judgment pursuant to the provisions of Rule 54(b), Ala. R. Civ. P.;
"(2) adjudicate all remaining pending claims thus rendering a final judgment; or,
"(3) take no action, in which event this appeal will be dismissed as from a non-final judgment."

On December 13, 2017, the circuit court entered a "Revised and Amended Order on Pending Motions" in response to the show-cause order and the remand order. In its December 13, 2017, order, the circuit court deleted the statement in its "Rulings" section of the March 15, 2017, order that the defendants' motion to compel arbitration was "held." Instead, the order stated that the motion was "denied." It further added the following paragraph:

"Pursuant to Ala. R. Civ. Pro. 54(b), it is hereby ORDERED and DIRECTED this Court expressly DETERMINES that there is no just reason for delay and hereby DIRECTS the entry of a final judgment as to the denial of [the defendants'] Renewed Motion to Compel Arbitration."

(Capitalization in original.) Additionally, the circuit court deleted the statement in its "Rulings" section of the March 15, 2017, order that Ramsey's motion for a partial summary judgment was "held." Instead, the order stated that that motion was "denied." It further added the following paragraph:

"Pursuant to Ala. R. Civ. Pro. 54(b), it is hereby ORDERED and DIRECTED this Court expressly DETERMINES that there is no just reason for delay and hereby DIRECTS the entry of a final judgment as to the denial of Sharon Ramsey's Motion for Partial Summary Judgment."

(Capitalization in original.)

After the circuit court issued its amended order, the case was returned to this Court.

II. Analysis

A. The Defendants' Appeal -- Case No. 1160659

The defendants challenge the circuit court's conclusion that the arbitration agreement is not retroactive to November 7, 2003, and therefore that it does not require arbitration of claims for injuries asserted by Ramsey on behalf of Pettway's estate that occurred between November 7 and November 26, 2003, and that, Ramsey alleges, resulted in Pettway's death. The defendants argue that the circuit court erred by examining the circumstances surrounding the execution of the arbitration agreement to divine the intent of the parties rather than relying solely upon the plain and unambiguous language of the arbitration agreement. They further contend that the language of the arbitration agreement clearly evinces an intent to include all claims for injuries purposefully arising from Pettway's care at the nursing home and that led to her death, not just injuries Pettway allegedly sustained beginning on November 26, 2003.

Before we examine the defendants' contention, we note that the defendants do not challenge the circuit court's determination that there is an issue of fact regarding the validity of the arbitration agreement dated November 26, 2003, and that, therefore, the issue whether Ramsey signed that arbitration agreement or whether her signature was procured by fraud must be decided by a jury. The failure to appeal as to that issue raises a significant problem for the viability of this appeal.

This Court has repeatedly observed that

" '[a] motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id."[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question." Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n.1 (Ala. 1995) (opinion on application for rehearing).' "

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (emphasis added) ). " 'If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.' " SSC Selma Operating Co. v. Gordon, 56 So.3d 598, 603 (Ala. 2010) (quoting Ex parte Caver, 742 So.2d 168, 172 n.4 (Ala. 1999) (emphasis added) ).

A basic point from the foregoing authorities is that a valid arbitration agreement is a prerequisite to compelling arbitration of a dispute. In this case, the circuit court has determined that an issue of fact exists regarding the validity of the November 26, 2003, arbitration agreement and that that issue is to be submitted to a jury. The defendants have not challenged that determination; instead, they seek review of the circuit court's determination regarding the scope of the arbitration agreement. But the circuit court's determination that the arbitration agreement is not retroactive to November 7, 2003, necessarily assumes the validity of the arbitration agreement. Indeed, the circuit court in its March 15, 2017, order stated that "retroactive enforcement" was a "contingent issue," i.e., an issue that would become relevant "in the event a jury might find the arbitration agreement is valid." If the jury concludes that the arbitration agreement is not valid, however, the retroactive-enforcement issue becomes moot.

We addressed a similar situation in Conseco Finance Corp. of Alabama v. Slay, 839 So.2d 617 (Ala. 2002). In that case, Conseco Finance Corp. (" Conseco") filed an action against Nora Slay

"alleging that it had entered into a contract with Slay for the purchase of a mobile home; that, pursuant to that contract, it had retained a purchase-money security interest in the home; and that under the terms of the contract it was entitled to the recovery of the collateral (i.e., the mobile home) and a money judgment for the outstanding indebtedness on the home. Conseco amended its complaint on October 23, 2000. Slay answered Conseco's amended complaint on November 20, 2000, and asserted a counterclaim alleging that the signature on the contract purporting to be hers was a forgery."

839 So.2d at 617-18.

Conseco then filed a motion to compel arbitration of Slay's counterclaim pursuant to an arbitration provision contained in the mobile-home contract. At a hearing on that motion, following arguments from the parties, the trial court stated:

" 'At this time I am going to state that Nora Slay's allegation that her purported signature on these documents is, in fact, a forgery, ... is going to be sufficient to prohibit the matter from proceeding to arbitration, and that she would have the right to a jury trial in this matter.'
"The case action summary sheet has a notation for the same day which states, 'Motion to Compel Arbitration DENIED.' Thereafter, Conseco filed a motion to alter, amend, or vacate the order denying its motion to compel arbitration, arguing, in part, that the trial court's order denying arbitration should be amended
" 'to clarify that arbitration is not being denied at this stage of the proceeding but, rather, that the issue of the validity of Slay's signature on the arbitration agreement should be determined by trial by jury and thus the validity of the arbitration agreement will be determined by jury trial.' "

839 So.2d at 618. The trial court denied Conseco's motion.

On appeal, Conseco "concede[d] that the trial court properly held that the question whether the signature on the contract purporting to be Slay's was forged was a question for a jury." Id. However, Conseco argued that the trial court's ruling could be misconstrued as denying arbitration entirely, and it asked this Court to direct the trial court to clarify its ruling "to assure Conseco that its motion to compel arbitration was 'conditionally' denied pending a resolution by a jury of the validity of the contract containing the arbitration provision." Id.

The Court refused to provide Conseco the relief it requested, explaining:

"Unfortunately for Conseco, it has, at this point in the proceedings, requested relief for a harm it has not yet suffered. Rather, Conseco claims that, assuming the jury finds the contract valid, the trial court's ruling and order could be read one way (i.e., as an absolute denial of arbitration), and that, if it is so read, Conseco would be legally harmed. Such speculative possibilities do not provide us with a 'live controversy.' 'Matters that may or may not occur in the future do not present an existing controversy ....' Baldwin County v. Palmtree Penthouses, Ltd., 831 So.2d 603, 605 (Ala. 2002). The trial court has not construed its own ruling and order in the way Conseco fears it can be construed; neither has the trial court had the opportunity to apply such a construction because there is no indication that a jury has decided the forgery issue. Should the trial court construe its ruling permitting a trial by a jury 'in this matter' to embrace all issues and not merely the authenticity of the signature on the arbitration agreement, Conseco may then appeal on the issue it has argued before this Court.
"We conclude, therefore, that the issue raised by Conseco is not ripe for adjudication. Although neither party questioned the ripeness of this matter, we must dismiss this appeal ex mero motu because we lack jurisdiction to hear it. See Baldwin County, 831 So.2d at 605 n.4 (this Court has a duty to notice a lack of subject-matter jurisdiction);
Boone v. Director of Dep't of Public Safety, 337 So.2d 6, 8 (Ala. Civ. App. 1976) ('The dismissal of an action ex mero motu when it shows upon its face that the court is without jurisdiction is always proper.')."

Id. at 618-19 (first and last emphasis added). Cf. SSC Selma Operating Co., LLC v. Gordon, 112 So.3d 36, 41 (Ala. 2012) (holding that "[t]he trial court properly denied the Warren Manor defendants' motion to compel arbitration of Gordon's claims against them because the trial court has yet to conduct a trial to resolve the issue identified by this Court in Gordon I-- whether a valid arbitration agreement exists between Gordon and SSC. Only if that issue is answered in the affirmative may the Warren Manor defendants properly move to compel arbitration. If that trial results in a judgment holding that there is no valid arbitration agreement, then the Warren Manor defendants may file a timely appeal challenging the trial court's ruling excluding any evidence they wished to submit at trial.").

Like the defendants in Conseco, the defendants here seek relief from a harm they have not yet suffered because there has been no definitive determination that the arbitration agreement is valid and therefore enforceable. The circuit court's finding that the arbitration agreement is not retroactive to November 7, 2003, only becomes relevant to the defendants if the jury determines that the arbitration agreement is valid and enforceable. In other words, the defendants' appeal is clearly premature.

"Matters that may or may not occur in the future are not matters in controversy.... Furthermore, because the facts necessary to create an actual controversy have not materialized, ... [the appellant] is essentially asking this Court to render an advisory opinion.... See also Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 651, 309 So.2d 424, 429 (1975) ('It has long been the law of this State that courts will not decide moot, abstract or hypothetical questions or render purely advisory opinions.')."

Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006). See also Baldwin Cty. v. Palmtree Penthouses, Ltd., 831 So.2d 603, 605 (Ala. 2002) ("Matters that may or may not occur in the future do not present an existing controversy ....").

Based on the foregoing, the defendants' appeal is due to be dismissed.

B. Ramsey's Cross-Appeal -- Case No. 1160726

In her cross-appeal, Ramsey seeks to challenge the circuit court's determination that she was not entitled to a summary judgment on the issue of the validity of the arbitration agreement. Specifically, she argues that the evidence in the record unequivocally demonstrates that Ramsey's signature on the arbitration agreement -- even if it was authentic -- was procured by fraud. This is so, Ramsey says, because she submitted clear affidavit and deposition testimony detailing how Harrison presented the admission documents to her on November 26, 2003; in contrast, Harrison testified in her deposition that she could not specifically recall her interaction with Ramsey on November 26, 2003, and, instead, she described her "common practice" of reviewing admission documents with customers. Additionally, Ramsey seeks to challenge the circuit court's determination that Aurora could enforce the arbitration agreement even though it was not a signatory to the agreement.

As with Conseco's appeal, Ramsey's cross-appeal raises immediate jurisdictional problems. To begin with, Ramsey purports to appeal from the denial of a motion for a partial summary judgment. Therefore, by its nature, the ruling from which Ramsey has appealed is a nonfinal judgment. The fact that the circuit court subsequently purported to make its ruling final through Rule 54(b), Ala. R. Civ. P., is of no moment. An order denying a motion for a summary judgment " ' "is inherently non-final and cannot be made final by a Rule 54(b) certification.... An order denying summary judgment is interlocutory and nonappealable." ' " Continental Cas. Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala. 2006) (quoting Fahey v. C.A.T.V. Subscriber Servs., Inc., 568 So.2d 1219, 1222 (Ala. 1990), quoting in turn Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 257-58 (Ala. 1988) ). In particular in this instance, the circuit court did not adjudicate any "claim" of Ramsey's in its March 15, 2017, order. It simply purported to rule on issues related to whether Ramsey's claims against the defendants must be arbitrated pursuant to the November 26, 2003, arbitration agreement.

Ramsey contends that she has a right to appeal the circuit court's order under Rule 4(d), Ala. R. App. P., which provides in part that "[a]n order granting or denying a motion to compel arbitration is appealable as a matter of right." Ramsey insists that she "was aggrieved by the trial court's ruling below. The trial court denied her arbitration-related motion and ordered a trial, even after it found that there was no dispute of fact concerning whether the November 26, 2003, document was legitimate and binding."

The problem with this argument is that Ramsey is intermingling the motions of the parties below in a futile effort to find authority for being able to file an immediate appeal. Specifically, it was the defendants that filed a motion to compel arbitration. If the circuit court had, in fact, granted that motion to compel arbitration, unquestionably Ramsey could have appealed such a decision under Rule 4(d), Ala. R. App. P., as an aggrieved party. See, e.g., Bowater Inc. v. Zager, 901 So.2d 658, 664 (Ala. 2004) (explaining that "subsection (d) [of Rule 4, Ala. R. App. P.,] now evenhandedly states that both an order granting and an order denying a motion to compel arbitration are 'appealable as a matter of right' within 42 days from date of the entry of the order"). However, to the extent that any definitive ruling was entered by the circuit court with regard to the defendants' motion to compel arbitration, the motion was denied because the circuit court concluded that an issue of fact existed as to the validity of the arbitration agreement. That issue has to be settled by a jury before any possible further disposition on the motion to compel arbitration is made. As we noted in Part A of this analysis, the defendants could have appealed the portion of the circuit court's order finding an issue of fact as to the validity of the arbitration agreement, but they did not do so. Ramsey cannot appeal the denial of the motion to compel arbitration because she is not aggrieved by that decision. See, e.g., Alcazar Shrine Temple v. Montgomery Cty. Sheriff's Dep't, 868 So.2d 1093, 1094 (Ala. 2003) (noting that "[o]nly a party prejudiced or aggrieved by a judgment can appeal"); Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 88 (Ala. 1985) (observing that "when an error applies only to a party who does not appeal therefrom, another party cannot make any such error an issue on appeal").

Assuming, for the sake of argument, that Ramsey can file a motion for a partial summary judgment regarding the validity of the arbitration agreement, Rule 4(d), Ala. R. App. P., does not provide authorization for Ramsey to appeal the circuit court's denial of that motion because of the simple fact that Ramsey's motion is not a "a motion to compel arbitration." Ramsey cites no authority other than Rule 4(d), Ala. R. App. P., that would allow her to immediately appeal the circuit court's ruling on her motion, and we have not been able to find any caselaw suggesting as much. Thus, even if the circuit court erred in denying Ramsey's motion for a partial summary judgment, the order is not immediately appealable under the Alabama Rules of Appellate Procedure because the order is not a final judgment and cannot be made final pursuant to Rule 54(b).

Based on the foregoing, Ramsey's cross-appeal is due to be dismissed.

IV. Conclusion

Because it is premature, the defendants' appeal is due to be dismissed. Ramsey's cross-appeal is likewise due to be dismissed because it seeks review of a nonfinal judgment.

1160659-APPEAL DISMISSED.

1160726-APPEAL DISMISSED.

Stuart, C.J., and Parker, Main, and Bryan, JJ., concur.

      The record indicates that Pettway suffered from dementia and that Ramsey had been appointed Pettway's attorney-in-fact.

      We note that the defendants have not contended either in the circuit court or before this Court that the arbitration agreement contains an arbitrability clause that would require the submission to the arbitrator of issues of the validity and scope of the arbitration agreement. See, e.g., Regions Bank v. Rice, 209 So.3d 1108, 1110 (Ala. 2016) (observing that "disputes regarding the validity and scope of an arbitration provision ... are issues of substantive arbitrability, and generally such issues are decided by a court. However, there is an important exception to that general rule. Gateway questions of substantive arbitrability may be delegated to the arbitrator if the delegation is clear and unmistakable.").

      Section 12-2-10, Ala. Code 1975, which allows the Governor or either house of the Alabama Legislature to request advisory opinions "on important constitutional matters," constitutes the sole exception to this rule.


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE Tyler Len REYNOLDS
    1161039 (CR-16-0147)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Woodburck NOE
    1161046 (CR-16-0967)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Maurice N. CAVER
    1161040 (CR-16-0608)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


author: DONALDSON, Judge.

text:
    S.M. v. C.A. and M.A.
    2170323
    Court of Civil Appeals of Alabama.
    July 20, 2018
    Shirley A. Millwood, Alexandria, for appellant.
    Shelbie G. Hankey of Hankey Law Firm, Cullman, for appellees.
   DONALDSON, Judge.

S.M. ("the mother") appeals from an order of the Cullman Juvenile Court ("the juvenile court") that, among other things, granted custody of C.D.M. ("the child") to C.A. and M.A. ("the paternal grandparents") and ordered the mother to pay child support. Because we determine that the mother has appealed from a nonfinal order, and, therefore, that this court has no jurisdiction, we dismiss the appeal.

Facts and Procedural History

The record indicates that the child had been in the custody of the paternal grandparents since April 2016. On July 27, 2017, the paternal grandparents filed a dependency petition in the juvenile court seeking custody of the child. On November 22, 2017, after a trial, the juvenile court entered an order that, among other things, found the child to be dependent, granted custody of the child to the paternal grandparents, and ordered the mother to pay child support. At the end of the order, the juvenile court stated: "The Court reserves the issue of the non-payment of support from April 2016."

The mother filed a "motion for final order" on December 4, 2017, in which she asserted that the reservation of the issue of retroactive support made the order nonfinal. That same day, the mother filed a motion seeking to alter, amend, or vacate the juvenile court's November 22, 2017, order. The juvenile court denied the mother's motion to alter, amend, or vacate on December 9, 2017. The juvenile court did not enter an order addressing the mother's motion seeking the entry of a final judgment. The mother has appealed from the November 22, 2017, order.

Discussion

On appeal, the mother challenges the juvenile court's order finding the child to be dependent, transferring custody to the paternal grandparents, and awarding child support.

Before we can address the mother's arguments on appeal, however, we must determine whether the mother has appealed from a final judgment, and, thus, whether this court has jurisdiction to consider the mother's appeal, because "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987).

As explained above, the juvenile court's November 22, 2017, order stated: "The Court reserves the issue of the non-payment of support from April 2016." It is well settled that "[a]n order is generally not final unless it disposes of all claims or the rights and liabilities of all parties." Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala. Civ. App. 2000) (citing Rule 54(b), Ala. R. Civ. P.; and Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ. App. 1987) ). " 'Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.' " Moore v. Strickland, 54 So.3d 906, 908 (Ala. Civ. App. 2010) (quoting Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala. Civ. App. 2010) ). "The question of finality of the order may be phrased as a question of 'something more for the court to do.' Sexton v. Sexton, 280 Ala. 479, 481, 195 So.2d 531, 533 (1967)." Wesley v. Brandon, 419 So.2d 257, 258 (Ala. Civ. App. 1982). Here, the order expressly identifies that the issue of retroactive child support has not been adjudicated.

This court has regularly dismissed appeals from judgments that reserve child-support determinations on the basis that such judgments are nonfinal. See Lowe v. Lowe, 85 So.3d 1023, 1025 (Ala. Civ. App. 2011) ; Naylor v. Naylor, 981 So.2d 440, 441 (Ala. Civ. App. 2007) ; Reid v. Reid, 844 So.2d 1212, 1213-15 (Ala. Civ. App. 2002) ; and Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala. Civ. App. 2001). See also S.A.M. v. M.H.W., 227 So.3d 1232, 1233-34 (Ala. Civ. App. 2017) (holding that, "[b]ecause the juvenile court's ... order does not resolve the issue of retroactive child support, the order is not a final judgment and is not capable of supporting an appeal").

This court has also held, however, that it is a "well-established principle that an adjudication of dependency and an accompanying custodial placement of a child in a dependency proceeding is an appealable order." C.L. v. D.H., 916 So.2d 622, 626 (Ala. Civ. App. 2005). We have also explained that, "[i]f the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future, the order is an appealable order." D.P. v. Limestone Cty. Dep't of Human Res., 28 So.3d 759, 764 (Ala. Civ. App. 2009).

In J.M.M. v. J.C., 50 So.3d 1076, 1076 (Ala. Civ. App. 2010), a mother appealed from a juvenile court's judgment finding her child to be dependent and determining that it was in the child's best interest to remain in the custody of a relative. In its order, however, the juvenile court reserved the issue of child support and directed the mother to file a child-support-income affidavit within 30 days of the entry of the judgment. Id. at 1077. This court dismissed the mother's appeal, finding that the juvenile court's reservation of the issue of the mother's child-support obligation rendered the judgment nonfinal. Id. at 1078. Likewise, in T.H. v. Jefferson County Department of Human Resources, 100 So.3d 583, 585 (Ala. Civ. App. 2012), which involved appeals from dependency judgments, this court dismissed as nonfinal orders that failed to establish requested child-support awards.

We asked the parties in this case to submit letter briefs addressing whether the mother appealed from a final judgment, in light of the language in the order reserving the issue of the nonpayment of child support. The paternal grandparents assert in their letter brief that the November 22, 2017, order is nonfinal. In her letter brief, the mother acknowledges the lack of a final judgment but asks this court to hold the appeal in abeyance and remand the case to the juvenile court with instructions. Neither the paternal grandparents nor the mother have asked us to revisit or overrule the cases that serve as authority for determining that the order is nonfinal.

Because the November 22, 2017, order does not resolve the issue of retroactive child support, the mother has appealed from a nonfinal judgment, and, therefore, we are required to dismiss the appeal. See S.A.M., 227 So.3d at 1233-34 ; Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala. Civ. App. 2006) ; and Moore, 54 So.3d at 908.

APPEAL DISMISSED.

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

      We note that the motion was not filed pursuant to Rule 59(e), Ala. R. Civ. P., which is made applicable in the juvenile court pursuant to Rule 1(A) and (B), Ala. R. Juv. P., because "[a] valid Rule 59 motion may only be filed in regard to a final judgment." C.M.M. v. S.F., 975 So.2d 975, 982 (Ala. Civ. App. 2007) (citing Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala. 2003), which notes: "By its express terms, Rule 59(e) applies only where there is a 'judgment.' ").

      We note that this case is distinguishable from Parker v. Parker, 946 So.2d 480 (Ala. Civ. App. 2006), in which this court considered a judgment that indefinitely reserved ruling on the issue of child support because of the mother's lack of income to be final. We held: "[T]he purported 'reservation' of the issue of child support does not change the fact that the trial court's judgment does not award child support; therefore, it is as final as any child-support judgment can be." Id. at 486. In this case, the juvenile court awarded child support but, for whatever reason, reserved the issue of retroactive child support. Based on the facts in this case, we cannot say that the juvenile court's order is sufficiently final to support an appeal.


author: THOMPSON, Presiding Judge.

text:
    EQUITY VENTURES, LLC v. CHEAHA BANK and Alice K. Martin, in Her Capacity as Probate Judge of Calhoun County
    2170365
    Court of Civil Appeals of Alabama.
    July 20, 2018
    Justin Jenkins of Lex Christi, LLC, Odenville, for appellant.
    Wesley M. Frye of Stubbs, Sills & Frye, P.C., Anniston, for appellee Cheaha Bank.
   THOMPSON, Presiding Judge.

Equity Ventures, LLC, appeals from a judgment of the Calhoun Circuit Court ("the circuit court") dismissing its petition for a writ of mandamus in connection with the administrative redemption of certain property for which it had acquired a tax deed.

The record indicates that Superior Home Construction, LLC ("Superior"), owned a parcel of property in Calhoun County ("the property"). Cheaha Bank held a mortgage on the property. Taxes on the property were not paid, and on May 8, 2012, the State of Alabama purchased the tax lien on the property at a tax sale. The state received a certificate of purchase on May 18, 2012. On January 16, 2015, the state conveyed its interest in the property and assigned the certificate of purchase to Equity Ventures.

In December 2015, more than three years after the date of the tax sale, Equity Ventures surrendered the certificate of purchase. The Calhoun Probate Court ("the probate court") issued Equity Ventures a tax deed for the property on December 28, 2015.

On October 19, 2016, Cheaha Bank sent Equity Ventures a written demand "for a statement of the value of all permanent or preservation improvements" made on the property since the date of the tax sale. The letter explicitly stated that the demand was being made pursuant to § 40-10-122, Ala. Code 1975. In response, Equity Ventures wrote a letter to Cheaha Bank explaining its position that Cheaha Bank was "not entitled to a response to a written demand made pursuant to Ala. Code § 40-10-122 (1975)" because, Equity Ventures explained, the tax sale had occurred more than three years before and the only form of redemption now available was pursuant to § 40-10-83, Ala. Code 1975. In other words, Equity Ventures' position was that judicial redemption was the only allowable form of redemption permitted by law at that time and that administrative redemption was no longer an option for Cheaha Bank.

Equity Ventures went on to advise Cheaha Bank that, pursuant to § 40-10-83, it would accept redemption in the amount of $15,989.67, which included $3,129.96 for the tax lien, interest in the amount of $569.64, and an attorney fee of $12,290.88. If the payment was not received by October 28, 2016, Equity Ventures said, the amount owed would need to be recalculated.

On November 4, 2016, Cheaha Bank filed in the probate court a petition for administrative redemption pursuant to § 40-10-120 et seq., Ala. Code 1975, and attached the correspondence between it and Equity Ventures. In the petition, Cheaha Bank asserted that an attorney fee was not recoverable pursuant to § 40-10-122 and that it was prepared to pay $4,776.24 to redeem the property.

That same day, the probate court entered a judgment granting Cheaha Bank's petition for administrative redemption. In the judgment, the probate court found that, because Cheaha Bank's written demand for a statement of value was made within one year of the date Equity Ventures provided Cheaha Bank with notice of its purchase of the property, its request for administrative redemption was timely. The probate court further found that Equity Ventures's "refusal to participate in the redemption process set forth under § 40-10-122... creates and operates as an implied forfeiture and waiver of its right to claim any value for permanent or preservation improvements to [the property] since the time of the tax sale, as well as any other allowable charges." The probate court also noted that an attorney fee was not recoverable under § 40-10-120 et seq. Finally, the probate court ordered the Calhoun County revenue commissioner to issue a certificate of redemption to Cheaha Bank upon Cheaha Bank's payment of $4,776.24. The certificate of redemption was issued on November 4, 2016, the same day Cheaha Bank had filed its petition for administrative redemption.

On November 30, 2016, the revenue commissioner notified Equity Ventures that the property had been redeemed and that, "upon surrender of your certificate of purchase to this office," it could obtain a check in the amount Equity Ventures had paid the state, plus interest. On December 2, 2016, Equity Ventures filed a motion to vacate the November 4, 2016, judgment and to quash the certificate of redemption. The probate court denied the postjudgment motion on February 21, 2017.

On March 15, 2017, Equity Ventures filed a petition for a writ of mandamus in the circuit court. In its petition, Equity Ventures asked the circuit court to issue a writ directing the probate court to quash or to vacate the certificate of redemption issued on November 4, 2016, on the ground that the probate court did not have subject-matter jurisdiction to grant the administrative redemption.

On April 12, 2017, Cheaha Bank filed in the circuit court a motion to dismiss Equity Ventures's petition for a writ of mandamus. In support of its motion, Cheaha Bank stated that Equity Ventures had not appealed from the November 4, 2016, judgment or obtained a stay of that judgment. Cheaha Bank argued that the probate court no longer had jurisdiction over the matter and that, therefore, the petition was moot. A hearing was held on Cheaha Bank's motion, after which, on July 21, 2017, the circuit court dismissed the petition for a writ of mandamus. On August 21, 2017, Equity Ventures filed a motion to alter, amend, or vacate the judgment dismissing the petition. The circuit court did not rule on the postjudgment motion, which was thus deemed denied on November 20, 2017, pursuant to Rule 59.1, Ala. R. Civ. P. On December 28, 2017, Equity Ventures timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Equity Ventures first contends that the circuit court erred in dismissing the petition for a writ of mandamus. The circuit court did not set forth a reason for its decision to dismiss the petition. At the hearing on Cheaha Bank's motion to dismiss, and in response to Equity Ventures's contention on appeal, Cheaha Bank has asserted that the petition for a writ of mandamus is moot. In support of its assertion, Cheaha Bank relies on the following language from State v. Webber, 892 So.2d 869, 871 (Ala. 2004) :

"The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. See Ex parte St. John, 805 So.2d 684 (Ala. 2001) ; State ex rel. S.N. v. W.Y., 622 So.2d 378, 381 (Ala. Civ. App. 1993) ; and Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala. 1979). The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Ex parte Little, 837 So.2d 822, 824 (Ala. 2002). Further, a petition for a writ of mandamus is not a substitute for an appeal. State v. Van Reed, 673 So.2d 857, 858 (Ala. Crim. App. 1996) ; and Ex parte City of Tuscaloosa, 636 So.2d 692, 694 (Ala. Crim. App. 1993).
"Therefore, in the case now before us, the filing of the petition for a writ of mandamus neither transferred the retained subject-matter jurisdiction of the trial court to the appellate court, nor tolled the expiration of the thirty days of retained jurisdiction of the trial court, nor conferred appellate jurisdiction (as distinguished from supervisory jurisdiction over the trial judge) on the Court of Criminal Appeals. Thus, after the thirty days of retained jurisdiction in the trial court expired, and after any applicable period for appeal, if any, expired, the trial court lost all jurisdiction and all possibility of reacquiring jurisdiction to vacate the judgment of dismissal, and the appellate courts lost all possibility of acquiring appellate jurisdiction to remand the case for the judgment to be vacated."

(Footnote omitted.)

We note that Webber involved a criminal matter and did not address the issue of whether a petition for a writ of mandamus was the proper vehicle for seeking review in the circuit court of a probate court's judgment granting a certificate of redemption.

In light of Webber, however, Cheaha Bank argues that, because more than 30 days had passed since the final judgment had been entered in the redemption action and Equity Ventures had not appealed or sought a stay of the judgment, the probate court no longer had jurisdiction over this matter. Because the probate court no longer had jurisdiction, Cheaha Bank reasons, any direction the circuit court might have provided to the probate court in the circuit court's supervisory capacity could no longer be carried out by the probate court. Therefore, Cheaha Bank has concluded, the petition for a writ of mandamus is moot.

In response, Equity Ventures argues that it did not have the option to appeal from the probate court's judgment. Instead, it maintains, it was required to file a petition for a writ of mandamus. To support its argument, Equity Ventures relies on Wall to Wall Properties v. Cadence Bank, NA, 163 So.3d 384 (Ala. Civ. App. 2014), and Surginer v. Roberts, 231 So.3d 1117 (Ala. Civ. App. 2017). In Cadence Bank, this court wrote:

"A party aggrieved by the erroneous issuance of a certificate of redemption may petition a circuit court in the county in which the probate court lies for a writ of mandamus to compel the vacating of the certificate. Ordinarily, a circuit court may issue a writ of mandamus to a probate court only in cases in which it has appellate jurisdiction. See Ex parte Jim Walter Res., Inc., 91 So.3d 50, 52 (Ala. 2012). Section 12-22-21, Ala. Code 1975, which defines the appellate jurisdiction of circuit courts over probate courts, does not include appeals concerning certificates of redemption. However, our supreme court recently recognized that a circuit court has jurisdiction to adjudicate petitions for a writ of mandamus involving the denial of a certificate of redemption. See Ross v. Rosen-Rager, 67 So.3d 29, 38 (Ala. 2010) (citing Boyd v. Holt, 62 Ala. 296 (1878) ) (refusal of the probate judge to issue a certificate of redemption for land sold for taxes was reviewable in the circuit court by a petition for a writ of mandamus). Furthermore, in Roach v. State, 148 Ala. 419, 39 So. 685 (1905), our supreme court accepted, without comment, an appeal from a circuit court's denial of a mandamus petition that was filed by a tax-sale purchaser. The tax-sale purchaser had requested the circuit court to compel the probate court in that case to issue a deed to the purchaser where the probate court had issued a certificate of redemption to the owner after the expiration of the statutory period for redemption. See also Chattanooga Metal Co. v. Proctor, 226 Ala. 492, 147 So. 666 (1933). If the circuit court had lacked jurisdiction in that case to adjudicate the mandamus petition, the supreme court would have dismissed the appeal as being from a void judgment. See, e.g., Ex parte Punturo, 928 So.2d 1030 (Ala. 2002). Thus, the circuit court has subject-matter jurisdiction to adjudicate the petition for a writ of mandamus in this case."

163 So.3d at 388.

In a subsequent case, this court condensed that holding, stating:

"If a probate court issues a certificate of redemption without ascertaining whether the redeeming party has paid all lawful amounts due, a circuit court may, upon a timely filed petition, issue a writ of mandamus to the probate court directing it to vacate the certificate of redemption and to hold a hearing to fulfill its statutory duty. [ Wall to Wall Properties v. Cadence Bank, NA, 163 So.3d 384, 388 (Ala. Civ. App. 2014)."

Wall to Wall Props., Inc. v. Wells Fargo Bank, N.A., 206 So.3d 658, 660 (Ala. Civ. App. 2016).

Again, in Surginer, supra, this court quoted the holding in Cadence Bank, then noted:

"See also Franks v. Norfolk S. Ry. Co., 679 So.2d 214, 216 (Ala. 1996) ('Orders as to which no statute grants appellate jurisdiction are reviewed on petitions for writ of certiorari, mandamus, or prohibition.'). 'All orders, judgments and decrees of probate courts shall be accorded the same validity and presumptions which are accorded to judgments and orders of other courts of general jurisdiction.' § 12-13-1(c), Ala. Code 1975. A petition for 'a writ of mandamus is the proper method for vacating an order that a ... court had no authority to enter.' Alabama Dep't of Mental Health & Mental Retardation v. State, 718 So.2d 74, 75 (Ala. Civ. App. 1998)."

Surginer, 231 So.3d at 1125.

Furthermore, our supreme court has held:

" 'In Alabama, circuit courts have "a general superintendence" over the probate courts. Ala. Code 1975, § 12-11-30(4). Encompassed in this superintendence is the power to review certain judgments and orders of the probate court, either through direct appeal or by petition for an extraordinary writ. See Helms v. McCollum, 447 So.2d 687 (Ala. 1984). Sections 12-22-2 and 12-22-20, Ala. Code 1975, authorize appeals from final judgments of a probate court to either the circuit court or the Supreme Court.
" '....
" 'The appellate jurisdiction of the circuit court can also be invoked by a petition for an extraordinary writ. Ala. Const. of 1901, [§ 142 ](b). Orders as to which no statute grants appellate jurisdiction are reviewed on petitions for writ of certiorari, mandamus, or prohibition. Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So.2d 771 (1944).'
" Franks v. Norfolk Southern Ry., 679 So.2d 214, 216 (Ala. 1996). See Boyd v. Holt, 62 Ala. 296 (1878) (refusal of the probate judge to issue a certificate of redemption for land sold for taxes was reviewable in the circuit court by a petition for a writ of mandamus)."

Ross v. Rosen-Rager, 67 So.3d 29, 38 (Ala. 2010) (emphasis added). As mentioned, § 12-22-21, Ala. Code 1975, which defines the appellate jurisdiction of circuit courts over probate courts, does not include appeals concerning certificates of redemption. Thus, pursuant to our supreme court's holding in Ross, the proper means by which to bring this matter before the circuit court would be by petition for a writ of mandamus.

Accordingly, we conclude that the circuit court erred in dismissing Equity Ventures's petition for a writ of mandamus seeking review of the probate court's judgment granting Cheaha Bank's petition for administrative redemption of the property. Therefore, we reverse the circuit court's judgment, and we remand this cause to the circuit court for it to address the merits of Equity Ventures's petition for a writ of mandamus.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      After receiving the tax deed, Equity Ventures filed two actions in the circuit court in connection with the property. In one action, Equity Ventures sought to eject Superior from the property; in the second action, it sought to quiet title to the property.

      We recognize that the amounts set forth total $15,990.48; however Equity Ventures' letter to Cheaha Bank requested $15, 989.67.

      The 90th day after the postjudgment motion was filed was Sunday, November 19, 2017. Therefore, pursuant to Rule 6(a), Ala. R. Civ. P., the date on which the postjudgment motion was deemed denied was Monday, November 20, 2017. See First Alabama State Bank v. McGowan, 758 So.2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala. 1983) ; see also Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala. 2009).


author: THOMAS, Judge.

text:
    Angela TAYLOR v. HIBBETT SPORTING GOODS, INC.
    2170368
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Trey J. Malbrough of The Malbrough Firm LLC, Birmingham, for appellant.
    T. Matthew Miller of Bradley Arant Boult Cummings LLP, Birmingham; and Steve T. McMeekin of Wainwright, Pope & McMeekin, P.C., Birmingham, for appellee.
   THOMAS, Judge.

In February 2017, Angela Taylor sued Hibbett Sporting Goods, Inc. ("Hibbett"), and fictitiously named defendants in the Jefferson Circuit Court ("the trial court"), alleging that she had been injured in the course of her employment and seeking benefits under the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq., and damages for retaliatory discharge. Hibbett moved to dismiss the claims against it, arguing that a separate legal entity, Hibbett Wholesale, Inc., was Taylor's employer at the time of her injury. After a hearing on the motion, the trial court ordered on May 5, 2017, that Taylor amend her complaint to name her actual employer within 21 days. Taylor failed to amend her complaint, and Hibbett notified the trial court of Taylor's failure to do so on July 25, 2017. The trial court dismissed Taylor's complaint on July 31, 2017.

On August 31, 2017, Taylor filed a postjudgment motion directed to the July 31, 2017, dismissal order. The trial court held a hearing on the motion and purported to deny the motion by order on November 6, 2017. Taylor then filed her notice of appeal to this court on December 18, 2017. We transferred the appeal to our supreme court for lack of appellate jurisdiction, see Ala. Code 1975, § 12-3-10, and our supreme court transferred the appeal back to this court pursuant to Ala. Code 1975, § 12-2-7(6).

As Hibbett points out in its appellate brief, Taylor filed her postjudgment motion on August 31, 2007, more than 30 days after the trial court dismissed her complaint against Hibbett. See Rule 59(b), Ala. R. Civ. P. (providing that a postjudgment motion filed pursuant to Rule 59 must be "filed not later than thirty (30) days after the entry of the judgment"). Although Taylor filed a declaration of technical difficulties indicating that the Alafile electronic-filing system had been unavailable between 7:59 p.m., August 30, 2017, and 7:57 a.m., August 31, 2017, as Hibbett points out, Taylor's filing of the declaration and the postjudgment motion failed to comply with the timing requirements set out in the Administrative Policies and Procedures for Electronic Filing in the Civil Divisions of the Alabama Unified Judicial System ("the electronic-filing policy manual"), which is available online at http://efile.alacourt.gov. The electronic-filing policy manual reads:

"If a party misses a Court imposed filing deadline because of an inability to electronically file based upon the unavailability of the system, the party may submit the untimely filed document, accompanied by a declaration stating the reason or reasons for missing the deadline. The document and declaration must be filed no later than 12:00 noon of the first day on which the court of jurisdiction is open for business following the original filing deadline."

Taylor did not file her postjudgment motion and declaration until 5:24 p.m. on August 31, 2017, several hours after the noon deadline.

An untimely filed postjudgment motion will not toll the time for taking an appeal. Boykin v. International Paper Co., 777 So.2d 149, 150 (Ala. Civ. App. 2000). Because the trial court and the parties failed to acknowledge the untimeliness of Taylor's postjudgment motion, the trial court conducted a hearing and entered an order purporting to deny that motion, which delayed the filing of Taylor's notice of appeal until December 2017. Taylor's appeal was filed more than 42 days after the entry of the trial court's judgment dismissing her complaint. See Rule 4(a)(1), Ala. R. App. P. (providing that a notice of appeal must be filed within 42 days of the entry of the judgment). Accordingly, we must dismiss this appeal as having been untimely filed. Boykin, 777 So.2d at 151.

APPEAL DISMISSED.

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

Pittman, J., concurs specially.

PITTMAN, Judge, concurring specially.

I concur, but I write separately to draw attention to two salient issues. First, the provision of the electronic-filing policy manual quoted in the main opinion, by its terms, speaks only to the tardy filing of a document, accompanied by a declaration of technical difficulties, "[i]f a party misses a Court imposed filing deadline." (Emphasis added.) In concurring, I have necessarily assumed that the 30-day period set forth in Rule 59(e), Ala. R. Civ. P., governing the filing of postjudgment motions to alter, amend, or vacate, is within the scope of "a Court imposed filing deadline" because Rule 59(e) was promulgated by "a Court" (i.e., our supreme court, cf. Rule 86, Ala. R. Civ. P.). Further, I have also assumed that the tardy filing of a postjudgment motion accompanied by a declaration of technical difficulties is self-executing, without involving any action on the part of the trial court, because Rule 6(b), Ala. R. Civ. P., which speaks to the general power of trial courts to enlarge the time for performing specified acts under the Rules of Civil Procedure, is made subject to the proviso that such courts "may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), except to the extent and under the conditions stated in them."

      The dismissal order specifically recites that the dismissal is without prejudice, which would generally preclude an appeal. See Ragland v. State Farm Mut. Auto. Ins. Co., 238 So.3d 641, 643 (Ala. 2017) ("Generally speaking, an order dismissing a claim without prejudice will not support an appeal."). However, the statute of limitations on Taylor's workers' compensation action had already run at the time of the dismissal order, thus rendering the dismissal, in effect, a dismissal with prejudice as to that count of Taylor's complaint. See Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala. 1987). The complaint does not state the date of Taylor's discharge from employment, so the dismissal may or may not have operated as a dismissal without prejudice regarding the retaliatory-discharge count of Taylor's complaint.


text:
    Larry CARTER v. Daniel Keith HAYNES
    2170367
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Mark Erdberg and Jaime C. Erdberg of Jaffe & Erdberg, P.C., Birmingham, for appellant.
    Paul A. Miller and Patrick W. Franklin of Miller, Christie & Kinney, P.C., Vestavia Hills, for appellee.
   THOMPSON, Presiding Judge.

In this action regarding a motor-vehicle collision, Larry Carter appeals from a judgment of the Bessemer Division of the Jefferson Circuit Court ("the trial court") determining, among other things, that Daniel Keith Haynes was entitled to a judgment as a matter of law as to Carter's claim of wantonness and the issue of punitive damages. Specifically, Carter asserts that the trial court improperly excluded evidence from which the jury could have inferred that Haynes was liable for wanton conduct.

The record indicates the following. On March 6, 2015, Haynes was driving a Honda Civic automobile that collided with the back end of Carter's pickup truck. At the trial, Haynes admitted that he was responsible for the accident. He testified that the collision occurred when he was talking to his girlfriend, a passenger in the automobile, and looked away from the road. He said that, when he looked back, there were vehicles stopped in front of him, and, he said, he did not have time to stop before hitting Carter's truck. Haynes said that he hit Carter's truck hard enough that his vehicle went under Carter's truck.

To prove his claim of wantonness against Haynes, which would enable Carter to receive punitive damages, Carter sought to introduce evidence indicating that Haynes had used methadone and marijuana on the morning of the day of the accident. Haynes had filed a motion in limine to preclude the introduction of such evidence. Initially, the trial court denied Haynes's motion, agreeing with Carter's contention that "the jury could reasonably infer impairment and intoxication based on how this wreck happened."

However, before testimony began, the matter of whether Carter should be able to introduce evidence of Haynes's drug use was discussed again. Haynes argued that, because of the six- to seven-hour lapse between the time the methadone and marijuana were used and the accident, coupled with the absence of evidence indicating that Haynes was impaired when the accident occurred and the absence of expert testimony regarding the expected effects of the drugs in a man of Haynes's size over a certain time, the admission of evidence of Haynes's drug use would be more prejudicial than probative or relevant. Haynes also pointed out, and Carter agreed, that, to be entitled to punitive damages, Carter would have to prove wanton conduct by clear and convincing evidence.

In making his offer of proof to the trial court (out of the jury's presence), Carter elicited the following evidence. Haynes said that he had been addicted to opioids and received daily treatment at a methadone clinic. On the morning of the day of the accident, Haynes said, he received his treatment at between 9:30 and 10:00 a.m. He went home and then smoked marijuana from a bong at about 11:00 a.m. He acknowledged that he "got high off the marijuana." He also testified that, although the physicians at the methadone clinic had instructed him not to use illegal drugs while he was taking methadone, he had never experienced any side effects from mixing methadone and marijuana. Haynes also candidly told the court that he knew that driving while impaired was dangerous, and he consciously decided to drive his vehicle the day of the collision.

However, Haynes said, he was not impaired at the time he drove. About six hours after smoking the marijuana, Haynes said, he was driving to work. The accident occurred at approximately 5:00 p.m. He testified that the effects of the drugs were gone by that time and that he was "totally sober" at the time of the accident.

The trial court reconsidered its previous ruling to deny the motion in limine. In doing so, the trial judge said: "I'm trying to listen to what you have and trying to glean some sense of what evidence do you have to show that [Haynes] was impaired. I'm not really finding any in my mind." The trial judge also noted: "All evidence is prejudicial, but this is highly prejudicial to say someone has abused drugs by driving and then there's an accident." The trial judge ultimately granted Haynes's motion in limine, stating: "[I]f there's not going to be any evidence or any testimony as to the impairment of this defendant while driving. If there's going to be nothing regarding that, I don't see where I can allow that in."

After the trial, the trial court entered a judgment as a matter of law in favor of Carter on the claim of negligence and in favor of Haynes on the claim of wantonness and the issue of punitive damages. It also entered a judgment on the jury's verdict awarding Carter damages of $28,284.41, plus court costs. On October 26, 2017, Carter filed a motion for a new trial in which he argued that the trial court had improperly excluded Haynes's admission that he had used methadone and marijuana on the day of the accident. After a hearing on the issue, the trial court entered an order denying the motion on November 16, 2017. Carter filed a timely notice of appeal on December 28, 2017.

On appeal, Carter contends that the trial court erred in excluding evidence of Haynes's drug use on the day of the accident.

" ' "[T]he trial court has great discretion in determining whether evidence ... is relevant and whether it should be admitted or excluded." Sweeney v. Purvis, 665 So.2d 926, 930 (Ala. 1995). When evidentiary rulings of the trial court are reviewed on appeal, "rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala. 1998), citing Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala. 1991).'
" Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala. 2001)."

Van Voorst v. Federal Express Corp., 16 So.3d 86, 92 (Ala. 2008).

Carter contends that the trial court improperly excluded evidence of Haynes's drug use earlier in the day based on Haynes's argument that Carter was required to offer expert testimony as to the effects of the drugs over time, based on the factors present in this case, such as Haynes's size, the amount of marijuana smoked, Haynes's tolerance for the drugs, and the like. However, in granting Haynes's motion in limine, the trial court did not mention the need for expert testimony. Instead, the trial court found that Carter had no evidence to present demonstrating that Haynes was impaired at the time of the accident and, therefore, that evidence of Haynes's drug use six to seven hours before the accident was unduly and unfairly prejudicial.

Rule 403, Ala. R. Evid., provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

"Mere prejudice is not a basis for exclusion under Rule 403, because evidence can be harmful, yet not unfairly prejudicial. State v. Parker, 740 So.2d 421 (Ala. Crim. App. 1996), reversed on other grounds, 740 So.2d 432 (Ala. 1999). The proper test for determining whether relevant evidence has been properly excluded under Rule 403 is to determine whether 'its probative value is substantially outweighed by the danger of unfair prejudice.' (Emphasis added.) McElroy's Alabama Evidence clarifies the Rule 403 standard by stating: 'This principle does not empower the trial judge to exclude evidence simply because it is prejudicial or because its prejudice outweighs its probative value. Rather, exclusion is merited only when the prejudice substantially outweighs the probative value.' Charles W. Gamble, McElroy's Alabama Evidence, § 21.01(4) (5th ed. 1996) (footnotes omitted) (emphasis original).
" 'Unfair prejudice' under Rule 403 has been defined as something more than simple damage to an opponent's case. Dealto v. State, 677 So.2d 1236 (Ala. Crim. App. 1995). A litigant's case is always damaged by evidence that is contrary to his or her contention, but damage caused in that manner does not rise to the level of 'unfair prejudice' and cannot alone be cause for exclusion. Jackson v. State, 674 So.2d 1318 (Ala. Crim. App. 1993), reversed in part on other grounds, 674 So.2d 1365 (Ala. 1994). 'Prejudice is "unfair" if [it] has "an undue tendency to suggest decision on an improper basis." ' Gipson v. Younes, 724 So.2d 530, 532 (Ala. Civ. App. 1998), quoting Fed. R. Evid. 403 (Advisory Committee Notes 1972). See, also, Rule 403, Ala. R. Evid."

Ex parte Vincent, 770 So.2d 92, 95-96 (Ala. 1999). Moreover, "[t]he decision to admit or to exclude evidence is within the discretion of the trial judge, and we will not reverse such a decision absent an abuse of discretion." City of Birmingham v. Moore, 631 So.2d 972, 974 (Ala. 1994).

As was noted during the arguments presented to the trial court, there was no evidence from lay witnesses that would show that Haynes was driving erratically before the accident, the police officer who responded to the scene of the accident did not note signs that Haynes was impaired at the time of the accident, and Haynes was not arrested for driving under the influence.

Carter maintains that Haynes's admission of voluntary drug use earlier in the day, coupled with the accident itself, constitutes evidence from which the jury could find that he was impaired at the time of the accident. Carter cites Thomas v. Heard, 256 So.3d 644 (Ala. 2017), in support of his argument that the issue of wantonness should have gone to a jury because, he explains, evidence of Haynes's "voluntary intoxication" rebuts the presumption set forth in Thomas that a motorist "would not engage in activity that would knowingly result in harm to himself." Id. at 658 (opinion on application for rehearing).

In Thomas, our supreme court noted that, in Ex parte Essary, 992 So.2d 5, 12 (Ala. 2007), the court had indicated that the presumption that a motorist would not engage in activity that would knowingly result in harm to himself "could be rebutted if there were substantial evidence that the motorist was not in possession of his 'normal faculties' as a result of 'voluntary intoxication' such that he was indifferent to the risk of injury to himself." Thomas, 256 So. 3d at 658 (opinion on application for rehearing). However, unlike in this case, in Thomas there was evidence indicating that Thomas, the driver, "was not in possession of his 'normal faculties' " at the time of the accident. Id. The Thomas court explained that

"[t]here is evidence indicating that Thomas drank at least one 'tallboy' beer and that he took a Seroquel pill before leaving Foster's house [approximately 20 minutes before the accident]. There was testimony presented that Seroquel causes drowsiness and that that effect would be exacerbated by alcohol. There was also evidence presented indicating that Thomas drank more than one beer. In fact, the evidence indicates that Thomas's blood-alcohol concentration 'would have been somewhere between a .05 grams percent and a .06 grams percent.' The evidence also indicates that witnesses smelled alcohol in the area of Thomas's vehicle immediately after the accident. Dr. Kalin testified as to the effects a person with a blood-alcohol concentration of .05% to .06% may experience. Dr. Kalin testified that a person with a blood-alcohol concentration of .05% to .06% may be 'more prone to risky activity'; may have 'some fine motor skill problems, how many things can you juggle at one time'; and 'may experience some visual acuity problems,' including potential loss of peripheral vision. However, Dr. Kalin testified that there was no evidence indicating that Thomas was actually experiencing these effects. Further, Thomas explicitly testified that he was not impaired when he left Foster's house.
"Viewing these facts in a light most favorable to the Heards and Wells, as we must, there is substantial evidence that Thomas drove his vehicle into the intersection without stopping at the stop sign regulating traffic on County Road 41, and that his driving so caused the accident. There is substantial evidence that Thomas drove his vehicle while he had a blood-alcohol concentration of .05% to .06%. There is also substantial evidence from which the jury could infer that, while Thomas was driving his vehicle with a blood-alcohol concentration of .05% to .06%, Thomas was experiencing the above-mentioned effects testified to by Dr. Kalin."

Thomas, 256 So. 3d at 657 (opinion on application for rehearing).

Furthermore, the Thomas court continued:

"Dr. Kalin testified to the following effect, among others, that Thomas was potentially experiencing as a result of his voluntary consumption of alcohol:
" 'Your judgment is going to be a problem in what you see, what you perceive, what you think, what you know. That's all impaired even by low levels of ethanol. That's what the buzz is, the buzz is something that makes you care less about your circumstances than you probably otherwise should.'
"This constitutes substantial evidence from which a jury could infer that Thomas was not in possession of his 'normal faculties' as a result of voluntary intoxication such that he was indifferent to the risk of injury to himself. Or, as alternatively stated by this Court in Roberts v. Brown, 384 So.2d 1047, 1051 (Ala. 1980), Thomas 'voluntarily created the conditions which led to the accident' by his consumption of alcohol. Accordingly, we do not find convincing Thomas's argument that the Heards and Wells failed to present substantial evidence of wantonness; there was substantial evidence from which the jury could have reasonably inferred that Thomas was not in possession of his normal faculties at the time of the accident as the result of his voluntary consumption of alcohol and at least one prescription drug."

Thomas, 256 So. 3d at 658 (opinion on application for rehearing).

Thomas actually strengthens Haynes's position rather than Carter's. In that case, Thomas consumed the beer and a Seroquel pill about 20 minutes before the accident occurred, unlike the 6 to 7 hour delay between Haynes's drug use and the accident in this case. Furthermore, there was no evidence presented in this case regarding the effects one could expect to find in Haynes six to seven hours after he consumed the drugs at issue. Likewise, as mentioned, there was no indicia of intoxication on Haynes's part at the time of the accident, unlike in Thomas, where, at the time of the accident, Thomas's blood-alcohol level measured between .05% and .06% and there was smell of alcohol at the scene of the accident. In other words, in Thomas there was evidence indicating that the driver was impaired at the time of the accident. Without some similar indication of Haynes's impairment, however, a fact-finder would merely be speculating that his drug use earlier in the day was the proximate cause of the accident.

Our research has revealed no Alabama caselaw directly on point. A Pennsylvania appellate court has addressed the question of the propriety of admitting evidence of use of a controlled substance to prove wrongful conduct when there has been no other evidence of impairment, explaining:

"Generally, the mere evidence of a party's consumption of alcohol or controlled substance is inadmissible to prove recklessness or carelessness of the party, unless it is established that the party was intoxicated and physically impaired at the time of the accident. Whyte v. Robinson, 421 Pa. Super. 33, 617 A.2d 380 (1992) ; Hawthorne v. Dravo Corp., Keystone Division, 352 Pa. Super. 359, 508 A.2d 298 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987). Thus, any evidence tending to establish intoxication of a pedestrian is inadmissible, unless it is also proven that the pedestrian was unfit to cross the street due to physical impairment resulting from intoxication; the intoxication and physical impairment may be established by circumstantial evidence, such as 'evidence that the injured party was staggering or had liquor on his breath.' Kriner v. McDonald, 223 Pa. Super. 531, 302 A.2d 392, 394 (1973)."

Chicchi v. Southeastern Pennsylvania Transp. Auth., 727 A.2d 604, 607 (Pa. Commw. Ct. 1999).

We agree with the reasoning of the Pennsylvania appellate court. There is no evidence of a causal relationship between the accident and Haynes's drug use at least six hours before the accident, nor is there any evidence tending to show that Haynes was impaired at the time of the accident. We disagree with Carter that the accident itself gives rise to an inference that Haynes was impaired at the time of the accident. Without evidence indicating that Haynes was impaired at or near the time of the accident, we cannot say that the trial court abused its discretion in excluding the evidence of Haynes's use of marijuana and methadone on the ground that it was unduly or unfairly prejudicial to Haynes.

Because we hold that the trial court did not abuse its discretion in excluding the evidence at issue, we pretermit discussion of Carter's contention that the exclusion of the evidence injuriously affected his substantial rights, i.e., that the exclusion improperly prevented him from receiving punitive damages in this case.

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Lauren BOSARGE v. Richard Gerald BOSARGE II
    2170424
    Court of Civil Appeals of Alabama.
    July 27, 2018
    David Wible, Mobile; and Richard L. Watters, Mobile, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Lauren Bosarge ("the mother") and Richard Gerald Bosarge II ("the father") were divorced by a December 16, 2015, judgment of the Mobile Circuit Court ("the trial court"). On March 24, 2016, the father filed a petition seeking to modify the divorce judgment. The mother later counterclaimed, also seeking to modify the divorce judgment and seeking to have the father held in contempt. The trial court conducted an ore tenus hearing.

On November 6, 2017, the trial court entered an order addressing all of the pending issues except the mother's contempt claim. On December 4, 2017, the mother filed a purported postjudgment motion in which she raised legal issues and arguments pertaining to the sufficiency of the evidence supporting the trial court's November 6, 2017, order. On December 13, 2017, the trial court entered a judgment that modified two provisions of its November 6, 2017, order and determined that the father was in contempt. That December 13, 2017, judgment constituted the final judgment in this action because it disposed of the last of the pending claims between the parties. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala. Civ. App. 2005).

In its judgment, the trial court, in relevant part, awarded the father supervised visitation with the child, and it specified that, if no problems arose with that supervised visitation after four months, the father would be allowed a standardized schedule of weekend and holiday visitation. The trial court also reduced the father's monthly child-support obligation "retroactive to March 2016," and it awarded the mother a child-support arrearage of $5,502.

The mother first argues that the trial court did not have the authority to modify the father's child-support obligation retroactively to the date the father had filed his petition for a modification. The mother points out that past-due installments of child support become enforceable money judgments. See, e.g., State ex rel. Brown v. Handley, 628 So.2d 726, 727 (Ala. Civ. App. 1993). However, those past-due installments become final judgments only when they mature before the filing of a petition to modify the child-support obligation. Ex parte State ex rel. Lamon, 702 So.2d 449, 450-51 (Ala. 1997) ; see also State ex rel. Pritchett v. Pritchett, 771 So.2d 1048, 1051 (Ala. Civ. App. 2000) ; Hartley v. Hartley, 42 So.3d 743, 745 (Ala. Civ. App. 2009) ("[C]hild-support payments that mature or become due before the filing of a petition to modify are not modifiable."). Alabama law provides that a modification of child support may be effective as of the date of the filing of a modification petition. Rule 32(A)(3), Ala. R. Jud. Admin. ("The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification."). This court has explained that applying a child-support modification retroactively is a matter within the trial court's discretion:

"Whether to make a parent's child-support obligation retroactive to the date the petition to modify was filed is a decision committed to the sound discretion of the trial court. Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala. Civ. App. 2004).
" 'The trial court may exercise its discretion in setting the effective date of a modification, but it is not bound to modify as of the date of the filing of the petition. Clutts v. Clutts, 54 Ala. App. 43, 304 So.2d 599 (1974) ; see also, Murphy v. Murphy, 491 So.2d 978 (Ala. Civ. App. 1986). This matter is within the sound discretion of the trial judge, whose decision will not be disturbed unless it was so unsupported by the evidence as to be palpably wrong, manifestly unjust, or plainly erroneous. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala. Civ. App. 1980).'
" Rogers v. Sims, 671 So.2d 714, 716-17 (Ala. Civ. App. 1995)."

Walker v. Lanier, 221 So.3d 470, 472 (Ala. Civ. App. 2016).

In Williams v. Braddy, 689 So.2d 154, 157 (Ala. Civ. App. 1996), this court determined that a trial court had erred in failing to properly apply the Rule 32 child-support guidelines, and it remanded the cause for a redetermination of the amount of child support. However, this court affirmed the retroactive application of the reduction in the father's child-support obligation to the date of the filing of the father's petition. This court held that if it changed the amount of child support on remand, the trial court should recalculate the father's child-support arrearage as well. 689 So.2d at 157.

The mother in the current case argues only that the trial court lacked the authority to retroactively modify the father's child-support obligation. As already explained, Rule 32(A)(3) and Alabama caselaw do not support that argument. Walker v. Lanier, supra ; Williams v. Braddy, supra. The mother does not argue that the trial court abused its discretion in retroactively modifying the father's child-support obligation; in other words, she does not argue that the evidence did not support the amount of the child-support obligation or that the facts do not support a retroactive application of the new child-support amount. Arguments not asserted in an appellant's brief are deemed waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982)

("When an appellant fails to argue an issue in its brief, that issue is waived.").

The mother next argues that the trial court erred in modifying the visitation schedule for the father. The mother contends that the father did not demonstrate a material change in circumstances sufficient to warrant an award of visitation with the child. The record indicates that the father did not appear at the divorce hearing and that, therefore, a default judgment of divorce was entered. The father testified at the hearing in this matter that he had terminated his former counsel's representation during the pendency of the divorce action and that that attorney had failed to inform him of the scheduled divorce hearing.

The divorce judgment awarded the father supervised visitation at a place known as the "Family Exchange Center." The father had last visited with the child, who was three years old at the time of the modification hearing, in June 2016. The father testified that he could not afford to pay the fees charged by the Family Exchange Center for his supervised visitation. We note that questioning by the trial court indicated that the Family Exchange Center offered a sliding-scale payment schedule based on a parent's income if that parent attended a parenting class through the Family Exchange Center. The father had not participated in that class. The record indicates that the father is not employed and is applying for Social Security disability benefits; the trial court questioned why the father had not attended the parenting class given his lack of employment.

The mother testified that visitation should be supervised because of the father's use of prescription pain medication and because his behavior made the mother question her own safety. The mother testified that, shortly before the default judgment was entered in the divorce action, the father had telephoned her a number of times and had used threatening language; she submitted into evidence audio recordings of those conversations. The recordings of the conversations between the father and the mother during the period before the divorce action indicate that the father frequently used foul language and made occasional vague threats such as saying he was going to call his lawyer and that he would "see her in court," or that "we are going to have a m*****f****** problem." The father swore constantly throughout those conversations and often belittled the mother. In addition, the mother presented evidence about an incident in which the father's new wife warned the mother that the father had threatened to kill the mother and her family.

The father presented evidence indicating that he suffered an on-the-job injury in 2012 and that, thereafter, he was prescribed two different pain medications. The father testified that that medication had changed and his dosage had decreased and that, at the time of the modification hearing, he was taking 15 milligrams of Oxycodone 3 times each day. The father stated that his medication did not prevent him from taking care of his stepchildren, and he testified that he could care for the child during visitation.

The evidence indicates that the mother and the father do not "get along," but there is nothing indicating that visiting the father would not be in the child's best interests.

"The legislature of this state has expressed the view that '[i]t is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children,' as well as 'to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.' Ala. Code 1975, § 30-3-150. Although not directly applicable to modification judgments, see Ala. Code 1975, § 30-3-157, that statute is consistent with the common-law principle that a noncustodial parent should generally be afforded 'reasonable rights of visitation' with his or her children, Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982)."

S.M.M. v. J.D.K., 208 So.3d 1118, 1122 (Ala. Civ. App. 2015).

The father testified that he had not appeared at the hearing in the divorce action because he had recently terminated the employment of his attorney and did not know the date of the scheduled hearing. The father filed his motion to modify approximately three months after the divorce judgment was entered. The father presented evidence indicating that he had reduced the medications he had been taking for his pain management. The mother insists that that evidence, together with the father's desire to visit the child, does not amount to a material change in circumstances warranting a modification of visitation. The mother also contends that the father's threatening behavior indicates that an increase in visitation is not appropriate. We do not condone the language the father used in his conversations with the mother, the tone he used in communicating with her, or the occasional or implied threats in some of those conversations. However, it is clear that those conversations occurred before the divorce judgment was entered. The mother did not present evidence indicating that those types of communications continued after the entry of the divorce judgment.

Further, those conversations, as well as the mother's testimony at the modification hearing, support a conclusion that the mother opposes the father visiting with the child. The trial court could have interpreted the mother's conduct in restricting the father's contact with the child and her insistence that he receive only minimal visitation as an effort to interfere with the father's relationship with the child.

" ' "The trial court is in the ... position of discerning the demeanor and other like intangibles which do not transfer so readily in a transcript.' Shepherd v. Shepherd, 531 So.2d 668, 671 (Ala. Civ. App. 1988). Stated another way, "the deference given to the trial court by the ore tenus rule is, in part, due to the trial court's unique position to see and/or hear something that may not be apparent on the face of the written record." Willing v. Willing, 655 So.2d 1064, 1068 (Ala. Civ. App. 1995) [ (Thigpen, J., concurring in part and dissenting in part) ].See Dobbins v. Dobbins, 602 So.2d 900, 901 (Ala. Civ. App. 1992) ("The reason for the ore tenus rule is [well established], i.e., that the trial court had the opportunity to observe the witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record.").' "

Fell v. Fell, 869 So.2d 486, 496 (Ala. Civ. App. 2003) (quoting Ex parte Fann, 810 So.2d 631, 638 (Ala. 2001) ).

Given the evidence in the record, we cannot say that the mother has demonstrated that the modification of visitation was not supported by the record or that the award of visitation with the father would not serve the child's best interests. Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala. Civ. App. 1995). See also Jackson v. Jackson, 520 So.2d 530, 531 (Ala. Civ. App. 1988) ("[T]he primary consideration in establishing visitation rights for the noncustodial parent is always what is in the best interest and welfare of the child.").

The mother last argues that the trial court erred in ordering her to have the child vaccinated. The mother acknowledges that, in Alabama, children who attend schools must be immunized. See § 16-30-1, Ala. Code 1975 ("The State Health Officer is authorized, subject to the approval of the State Board of Health, to designate diseases against which children must be immunized or for which they must be tested prior to, or, in certain instances after entry into the schools of Alabama."). She states, however, that she may validly claim an exemption under the law for religious objections to immunization; the mother testified at the hearing that she intended to claim such an exemption. Section 16-30-3, Ala. Code 1975, provides, in pertinent part:

"The provisions of this chapter shall not apply if:
"(1) In the absence of an epidemic or immediate threat thereof, the parent or guardian of the child shall object thereto in writing on grounds that such immunization or testing conflicts with his religious tenets and practices ...."

The father questioned the mother regarding her decision not to vaccinate the child, but he did not request that the trial court require the mother to vaccinate the child. In its judgment, the trial court did not order the mother to have the child vaccinated. Rather, the trial court's November 6, 2017, order states: "The Court is of the opinion that the child should get the vaccinations recommended by the doctors and required for the school. There does not appear to be valid religious exemption for the mother to refrain from given the child the vaccinations." Thus, the judgment indicates that the trial court expressed an opinion on the issue, but did not rule on the issue, either because the relief had not been requested or because the age of the child, who was not yet school-aged, made the application of § 16-30-3 premature. Accordingly, we conclude that the mother's argument with regard to this issue is moot.

For the reasons discussed in this opinion, the trial court's judgment is affirmed.

Appellant's request for an attorney fee is denied.

AFFIRMED.

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

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

      We note that, in its judgment, the trial court awarded the mother the $5,502 child-support arrearage "as of October 2017." The father did not appeal as to that award, and, therefore, we do not address it.