text:
    C.L. SMITH AUTO SALES, LLC, and Leisa Smith v. DAVID BULGER, INC.
    2170091
    Court of Civil Appeals of Alabama.
    May 11, 2018
    Chip Cleveland of The Cleveland Firm, LLC, Prattville, for appellants.
    Jennifer Joyce Tompkins, Montgomery, for appellee.
   THOMPSON, Presiding Judge.

C.L. Smith Auto Sales, LLC, and Leisa Smith ("the defendants") appeal from an order of default the Autauga Circuit Court ("the trial court") entered against them and a subsequent judgment ordering them to pay damages to David Bulger, Inc. ("Bulger"), in the amount of $59,847.37. The defendants appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The record indicates the following. Bulger filed a complaint against the defendants on September 6, 2013, in the Montgomery Circuit Court. On November 18, 2014, the action was transferred to the trial court "due to the defendant's residency." On February 17, 2016, the trial court entered a scheduling order setting the cause for trial on October 24, 2016, and ordering the parties to mediate in good faith before the scheduled trial date. The February 17, 2016, scheduling order also set a pretrial conference for October 11, 2016.

On April 15, 2016, before the mediation, the attorney for the defendants filed a motion to withdraw at the defendants' request. The trial court granted the motion on April 19, 2016. The parties unsuccessfully mediated the cause as scheduled on April 27, with the defendants appearing pro se. On October 15, 2016, the trial court entered an order of default against the defendants. In that order, the trial court explained that, when the case was called for the pretrial conference on October 11, 2016, Bulger was present with counsel but the defendants were not present and no attorney appeared on their behalf. The trial court then stated:

"The foregoing being considered by the Court, it is ORDERED as follows:
"1. That Default is entered in favor of [Bulger] and against the Defendant[s], and testimony on the issue of damages shall be taken before the Court at 9:00 a.m. on November 21, 2016."

The defendants' former attorney reentered the case on November 18, 2016. That same day, the defendants filed a motion to set aside the October 15, 2016, order or, in the alternative, to alter, amend, or vacate the "judgment" on the ground that the default was improperly entered as a sanction against the defendants for what they claimed was the "unintentional failure to attend" the pretrial conference. Apparently, the trial court did not conduct the damages hearing on November 21, 2016. On March 5, 2017, Bulger filed in the trial court a response to the defendants' motion. As part of its response, Bulger sought to dismiss the defendants' motion as being untimely filed. On March 6, 2017, after a hearing, the trial court denied the defendants' November 18, 2016, motion.

On May 4, 2017, the trial court held an evidentiary hearing on the issue of damages.

On May 9, 2017, the trial court entered a final judgment directing the defendants to pay Bulger $59,847.37 in damages. On June 8, 2017, the defendants filed a timely "verified motion to alter, amend, or vacate or in the alternative, for a new trial," challenging both the award of damages and the entry of the default judgment and seeking a trial on the merits. The postjudgment motion was denied by operation of law on September 6, 2017. The defendants filed their notice of appeal on September 8, 2017.

Before addressing the merits of the defendants' arguments on appeal, we first address Bulger's contention, made both before the trial court and in its brief on appeal, that the defendants' motion to set aside the October 15, 2016, order of default or, in the alternative, to alter, amend, or vacate that order was untimely. In its appellate brief, Bulger argues that the defendants' motion was not filed within 30 days of the date the trial court entered the October 15, 2016, order. Therefore, Bulger argues, the "postjudgment" motion was untimely.

Bulger's argument is not persuasive in light of authority to the contrary. This court's research has revealed no authority to support Bulger's proposition that the motion to set aside the order of default had to be filed within 30 days of its entry. Instead, Rule 55(c), Ala. R. Civ. P., provides that, "[i]n its discretion, the court may set aside an entry of default at anytime before judgment." In discussing Rule 55(c), our supreme court has held:

" 'A judgment by default with leave to prove damages is interlocutory and can be set aside at any time until entry of judgment on assessment of damages. It then becomes a final judgment.' Maddox v. Hunt, 281 Ala. 335, 339, 202 So.2d 543, 545 (1967). 'A default judgment that reserves the assessment of damages is interlocutory and may be set aside at any time; once the trial court assesses damages on the default judgment, the judgment becomes final. Rule 55(c), Ala. R. Civ. P.; Maddox v. Hunt, 281 Ala. 335, 202 So.2d 543 (1967).' Keith v. Moone, 771 So.2d 1014, 1017 (Ala. Civ. App. 1997), rev'd on other grounds, Ex parte Keith, [771 So.2d 1018 (Ala. 1998) ]."

Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 896 (Ala. 2005) (emphasis added).

In this case, the defendants' motion to set aside the order of default was submitted months before the trial court entered its final judgment assessing damages. At the time the motion was filed, the October 15, 2016, order remained interlocutory. Within 30 days after the final judgment awarding damages was entered, the defendants filed another motion to alter, amend, or vacate the final judgment in which they challenged the entry of the default judgment, among other things. Therefore, the defendants' motions were not untimely filed, see Rule 55(c) and Rule 59(b), Ala. R. Civ. P., and we will proceed to the merits of the appeal.

The defendants assert that the trial court abused its discretion in entering a default judgment against them as a sanction for their failure to attend the October 11, 2016, pretrial conference. Entering a default judgment as a sanction for a party's failure to obey a scheduling order or a pretrial order is governed by Rule 16(f), Ala. R. Civ. P., which provides that,

"[i]f a party or a party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or a party's attorney is substantially unprepared to participate in the conference, or if a party or a party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and, among others, any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust."

Rule 37(b)(2), Ala. R. Civ. P., provides for sanctions when a party fails to comply with a court's discovery orders. That rule reads in pertinent part:

"Sanctions by Court in Which Action Is Pending. If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, [Ala. R. Civ. P.,] the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
"....
"(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
"(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
"(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
"....
"In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

In Brown v. Brown, 896 So.2d 573 (Ala. Civ. App. 2004), this court addressed what a trial court should consider before entering an order of dismissal, pursuant to Rule 16(f), based on a failure to comply with a scheduling order:

"Generally, trial courts are given broad discretion to determine appropriate sanctions under Rule 37(b)(2). Ex parte Sears, Roebuck & Co., 882 So.2d 326, 328 (Ala. 2003). Rule 16(f) permits a trial court facing a situation involving, among other things, a party's failure to appear at a pretrial conference to 'make such orders with regard thereto as are just.' Thus, we conclude that the trial court's decision to impose sanctions under Rule 16(f) would likewise be a matter of considerable discretion.
"However, a trial court's discretion under Rule 37(b)(2) is not unfettered. '[A] trial court in a discovery-abuse case must impose a sanction proportionate to and compensatory of the particular discovery abuse committed.' Ex parte Seaman Timber Co., 850 So.2d 246, 258 (Ala. 2002). Likewise, a trial court considering an appropriate sanction under Rule 16(f) should do no less than consider whether a sanction is proportionate to the offense committed by the offending party....
"As our supreme court has said: 'We recognize that the sanction of dismissal is the most severe sanction that a court may apply. Judicial discretion must be carefully exercised to assure that the situation warrants the imposition of such a sanction.' Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala. 1989) (citations omitted). '[D]ismissal orders must be carefully scrutinized, and the plaintiff's conduct must mandate dismissal.' Weatherly v. Baptist Med. Ctr., 392 So.2d 832, 837 (Ala. 1981)."

896 So.2d at 575.

In an appeal from a judgment dismissing a parties' claims as a sanction under Rule 37(b), this court wrote the following:

"The Alabama Supreme Court has stated that, for a trial court to enter an order dismissing a party's action or to enter a default judgment against a party,
" '[t]he [party's] conduct must mandate dismissal. We have held that "willfulness" on the part of the noncomplying party is a key factor supporting a dismissal. If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is justified and should not be disturbed.'
" Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala. 1989) (citations omitted).
" ' "In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Bd. of Educ., 365 So.2d [659] at 661 [ (Ala. 1978) ].See, e.g., Boazman v. Econ. Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976) ; Pond v. Braniff Airways[, Inc. ], 453 F.2d 347 (5th Cir. 1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir. 1971). 'Willful' is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct."
" ' Selby v. Money, 403 So.2d 218, 220-21 (Ala. 1981) ; see also Burton v. Allen, 628 So.2d 814, 815 (Ala. Civ. App. 1993).'
" HICA Educ. Loan Corp. v. Fielding, 953 So.2d 1261, 1263 (Ala. Civ. App. 2006). Thus, in order to dismiss Smith's action and to enter a judgment in favor of Davidson on his claims, the trial court must have had evidence from which it could infer that Smith's failure to comply with Davidson's discovery requests and the trial court's orders was the result of Smith's conscious or intentional failure to act, not his accidental or involuntary noncompliance."

Smith v. Davidson, 58 So.3d 177, 181-82 (Ala. Civ. App. 2010).

In Gill v. Cobern, 36 So.3d 31, 33 (Ala. 2009), our supreme court reversed a trial court's judgment dismissing an action for want of prosecution when the plaintiffs' attorney failed to appear at a pretrial conference. As in this case, the motion to alter, amend, or vacate that judgment and to reinstate the action was denied by operation of law. In reversing the dismissal, our supreme court analogized the circumstances to an involuntary dismissal of a plaintiff's action for failure to prosecute, explaining:

"In Cabaniss v. Wilson, 501 So.2d 1177 (Ala. 1986), the plaintiffs' attorney failed to appear at a hearing on a motion for a summary judgment. At the hearing, counsel for the defendants orally moved to dismiss the plaintiffs' complaint with prejudice under Rule 41(b), Ala. R. Civ. P., for failure to prosecute. The trial court granted the defendants' Rule 41(b) motion, dismissing the plaintiffs' complaint with prejudice. Subsequently, the plaintiffs filed a motion to alter, amend, or vacate the judgment, claiming that the summary-judgment hearing was 'inadvertently left off the calendar of plaintiffs' counsel....' 501 So.2d at 1179. The trial court denied the plaintiffs' motion, and the plaintiffs appealed. 501 So.2d at 1179-80.
"Applying the well established rules concerning the review of a trial court's dismissal with prejudice of a plaintiff's claims, this Court held that the conduct of the plaintiffs' attorney did not appear to be willful or contumacious because 'the failure of the plaintiffs' attorney to appear in court [at the hearing on the summary-judgment motion] was allegedly inadvertent on his part.' 501 So.2d at 1181. Because there was no evidence to support the trial court's dismissal with prejudice, this Court reversed its order dismissing the plaintiffs' claims and remanded the cause for further proceedings.
"As was the case in Cabaniss, the record here does not reveal the presence of 'extreme circumstances' sufficient to warrant the 'harsh sanction' of a dismissal with prejudice. See Selby v. Money, 403 So.2d 218, 220 (Ala. 1981). Although Cobern argues on appeal that many other factors could have affected the trial court's ultimate decision to dismiss Gill's action with prejudice, the record clearly indicates that the trial court dismissed Gill's action on the sole basis that Gill's attorney did not appear at the pretrial conference."

36 So.3d at 33.

In this case, as in Gill, the trial court's default judgment indicates that it was entered against the defendants solely because of their failure to appear at the October 11, 2016, pretrial conference. Although the record indicates that Leisa Smith contacted Bulger's attorney the day before the pretrial conference was scheduled to say that she intended to be present at the trial that had been scheduled for October 24, 2016, there is no evidence in the record to support a determination that the defendants' failure to attend the pretrial conference was a "conscious or intentional failure to act." Smith v. Davidson, 58 So.3d at 182. Based on our review of the record, we find no clear record of delay, willful default, or contumacious conduct by the defendants. Id. at 181. In other words, we find no evidence that the defendants' failure to attend the pretrial conference constitutes the " 'extreme circumstances' " that warrant the " 'harsh sanction' " of a default judgment against them. Gill, 36 So.3d at 33. Accordingly, we conclude that the trial court abused its discretion in entering the default judgment against the defendants, and that judgment is therefore due to be reversed.

For the reasons set forth above, the judgment of the trial court is reversed. The cause is remanded for the trial court to reinstate the proceedings against the defendants.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      There is nothing in the record to indicate that Leisa Smith is an attorney licensed to practice in Alabama. Therefore, she could not properly represent C.L. Smith Auto Sales, LLC, during the mediation. See Stage Door Dev., Inc. v. Broadcast Music, Inc., 698 So.2d 787 (Ala.Civ. App. 1997). The parties did not address this concern before the trial court or in their appellate briefs.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Calvin CASEY v. Pam BINGHAM and Chris Bingham
    2170045
    Court of Civil Appeals of Alabama.
    May 11, 2018
    Lana Hawkins of The Hawkins Law Firm, Guntersville, for appellant.
    Emily S. Jolley of Guntersville Law, LLC, Guntersville, for appellees.
   PITTMAN, Judge.

Calvin Casey, the defendant in an action seeking possession of land, appeals from a judgment entered in favor of the plaintiffs, Pam Bingham ("Bingham") and her husband, Chris Bingham, by the Marshall Circuit Court after a pretrial hearing. We reverse and remand.

The abbreviated record in this appeal indicates that Casey and Bingham were formerly married to each other and that, during their marriage, a residence that they occupied with their son was located on a tract of land in Marshall County measuring approximately six and a half acres. There are no deeds evidencing any conveyances of the property, or any portion thereof, in the record, but the judgment under review refers to a previous order entered by the Marshall Circuit Court in July 2016 in a separate action involving these same parties ("the quiet-title/declaratory-judgment action") indicating that the entire tract formerly had belonged to Bingham's father and mother, Charles Stephens and Patricia Stephens. According to Casey's postjudgment motion, a .86-acre parcel of property-which a survey document attached to the circuit court's judgment indicates is completely contained within the larger approximately 6.5-acre tract-was conveyed to Bingham and Casey during their marriage. In 2003, Casey and Bingham divorced, but they continued to own the .86-acre parcel as tenants in common until 2007, when Bingham conveyed her interest in the parcel to Casey. Title to the remaining five-plus acres in the larger tract, on which were located two metal buildings referred to by Casey as "the barn" and "the shop," apparently remained in Charles and Patricia Stephens. However, the Stephenses themselves were divorced in 2004 by a judgment of the Madison Circuit Court, and the July 2016 order of the Marshall Circuit Court indicates that, pursuant to the settlement agreement incorporated into their divorce judgment, the Stephenses retained title to the five-plus acres ("the disputed tract") as joint tenants with rights of survivorship. In contrast, Casey testified, in an affidavit attached to his postjudgment motion, that the Stephenses had agreed to convey the disputed tract to him after the Stephenses' divorce judgment was entered and that Patricia Stephens had actually executed a quitclaim deed to do that; however, Casey further testified that Bingham had convinced Charles Stephens not to sign a deed conveying the disputed tract to him because of an ongoing postmarital dispute between Casey and Bingham.

According to Casey's affidavit, after Patricia Stephens died in 2012, Charles Stephens executed a deed in which he conveyed his interests in the disputed tract to Bingham and her husband, and Bingham offered to sell that tract to Casey (who, for all that appears in the record, declined to purchase the rights of Bingham and her husband therein). Rather, Casey continued to use both the .86-acre parcel and the disputed tract, and he brought a quiet-title action against Bingham and her husband in the Marshall Circuit Court based upon the quitclaim deed he had received from Patricia Stephens during her lifetime; Bingham and her husband responded by asserting a counterclaim seeking a judgment declaring that they and not Casey were the rightful owners of the disputed tract because of Charles Stephens's deed to them. The quiet-title/declaratory-judgment action yielded the July 2016 order ruling that Casey's quitclaim deed was void and that title to the disputed tract had been vested in Charles Stephens by virtue of his having survived Patricia Stephens; that order also provided that "[a]ll other relief requested which is not granted herein is hereby denied."

In October 2016, Bingham and her husband brought an action in the Marshall District Court against Casey. In their Form C-59 complaint ("Statement of Claim-Eviction/Unlawful Detainer") filed in the district court, Bingham and her husband demanded the immediate possession of the disputed tract (which was identified in the complaint by its mailing address in Arab). The stated basis for the plaintiffs' contention that Casey no longer had the right to possess the disputed tract was the order that had been entered by the Marshall Circuit Court in the quiet-title/declaratory-judgment action in July 2016. Notice of the district-court action was posted at the disputed tract on Sunday, October 9, 2016, and Casey, through counsel, filed an answer denying the plaintiffs' contentions on Monday, October 17, 2016.

On October 28, 2016, the district court set a trial date of November 7, 2016. However, on the date of trial, counsel for Casey moved for a continuance because, she averred, she had four other matters scheduled for a trial on that date; the district court, citing Ala. Code 1975, § 35-9A-461, a portion of the Alabama Uniform Residential Landlord and Tenant Act governing residential-eviction actions, denied the requested continuance on the stated basis that the action commenced by Bingham and her husband was entitled to precedence in scheduling over all other civil cases.

The case was called by the district court for trial as scheduled on November 7, 2016, and, although the plaintiffs were present, Casey was not present; the district court then proceeded to swear in witnesses and take testimony and entered a judgment on that date awarding possession of the disputed tract to Bingham and her husband. On November 9, 2016, Casey filed a postjudgment motion pursuant to Rule 59(dc), Ala. R. Civ. P., requesting that the district court vacate its judgment and hold a new trial with Casey's counsel in attendance; however, the district court denied that motion on November 14, 2016.

Under Article 8 of Chapter 6, Ala. Code 1975, a party may appeal from a judgment entered in an action alleging unlawful detainer or forcible entry and detainer from the district court to the circuit court within seven days; similarly, under Ala. Code 1975, § 35-9A-461(d), any party may appeal to circuit court from an eviction judgment entered by a district court within seven days. On November 21, 2016, seven days after the denial of Casey's postjudgment motion (the pendency of which tolled the time for taking an appeal, see Ala. Code 1975, §§ 35-9A-461(d) and 12-12-70(a) ), Casey filed a notice of appeal to the Marshall Circuit Court and indicated a jury demand thereon. With certain exceptions that are not pertinent in this case, Ala. Code 1975, § 12-12-71, provides that "all appeals from final judgments of the district court shall be to the circuit court for trial de novo" (emphasis added). Despite the jury demand in the notice of appeal, the circuit court initially set the case for a bench trial on April 20, 2017; however, that court determined that that setting had been the result of a clerical error and later set the case for a jury trial on June 19, 2017. However, on June 6, 2017, the circuit court removed the case from the June 19, 2017, trial docket and instead set it "for pretrial hearing" on that date. At the request of Casey's counsel, the circuit court entered an order stating that "[t]he pretrial hearing in this matter is reset for June 20, 2017."

Despite having set the case only for a pretrial hearing, the circuit court entered, on August 15, 2017, a final judgment in favor of Bingham and her husband. In its judgment, the circuit court described the November 7, 2016, judgment of the district court as being a default judgment in an unlawful-detainer action, and, despite the de novo nature of Casey's appeal, the circuit court indicated that it had, at the June 20, 2017, pretrial hearing, "review[ed] the action of the [d]istrict [c]ourt"; had "reviewed facts"; had "reviewed court records" in the district-court action (as well as in the previous quiet-title/declaratory-judgment action in the Marshall Circuit Court involving the parties and the divorce action in the Madison Circuit Court involving the Stephenses); and had "heard the arguments from both sides." The circuit court further expressly determined that the July 2016 order in the quiet-title/declaratory-judgment action was a final judgment, notwithstanding Casey's counsel's contention that certain claims remained unadjudicated in that action; that the two metal structures "discussed in the hearing ... in [d]istrict [c]ourt ... and personal property being contained in th[em] are clearly located and affixed to the real ... property of [Bingham and her husband]"; that "continued burning of trash or other items on the [disputed tract] by [Casey and his wife] can be considered trespass to land and a danger to the Bingham property, and therefore must stop"; and that Casey and his wife were to remove any items of personal property inside the two metal structures on the disputed tract within 30 days. The circuit court attached to its judgment the district court's judgment, a document indicating the results of a 2013 survey of the disputed tract, an aerial photograph of the disputed tract, and a copy of the July 2016 order in the quiet-title/declaratory-judgment action.

Casey timely filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., in which he contended, among other things, that the circuit court had erred in "upholding" the district court's denial of the requested continuance and that court's "default judgment"; Casey also contended that the circuit court had erred in reaching the merits of the case at a scheduled pretrial hearing without notice to Casey. Attached to Casey's motion was his own affidavit, in which he testified that the circuit court, at the June 20, 2017, pretrial hearing, had reviewed documentary exhibits, including "binders with pictures in them," that Bingham and her husband had brought to the hearing. The circuit court denied that postjudgment motion, and Casey appealed to this court.

On appeal, in his first three issues, Casey reasserts his contentions regarding the propriety of the district court's determinations regarding whether his answer was timely, whether a continuance was due to be granted on November 7, 2016, and whether the district court properly proceeded to determine the merits in Casey's absence notwithstanding Casey's contention that the circuit court's July 2016 order in the quiet-title/declaratory-judgment action was nonfinal. Bingham and her husband, in their appellees' brief, correctly note that the circuit court's role in this case was to hear the cause de novo and not to assess the correctness of the district court's judgment; our review, in turn, is limited to the correctness of the judgment of the circuit court, not the district court, as our decision in Crews v. Jackson, 218 So.3d 368 (Ala. Civ. App. 2016), makes clear:

"We note that it appears that a portion of Crews's arguments on appeal pertain to orders entered by the district court. Crews's appeal to the circuit court was a de novo appeal. See Ala. Code 1975, § 12-12-71 ('Except as provided in Section 12-12-72[, Ala. Code 1975,] and in subsection (e) of Section 12-15-120, [Ala. Code 1975,] all appeals from final judgments of the district court shall be to the circuit court for trial de novo.').
" ' " 'Alabama cases have consistently held that a trial de novo means an entirely new trial, "as if no trial had ever been had, and just as if it had originated in the circuit court." Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964).' " State v. Reynolds, 887 So.2d 848, 853 (Ala. 2004) (quoting Ex parte Palughi, 494 So.2d 404, 408 (Ala. 1986) ). "A trial de novo ... means 'trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.' " Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala. Civ. App. 1983) (quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970) ) (emphasis omitted).
" 'In Cloverleaf Land Co. v. State, 276 Ala. 443, 445-46, 163 So.2d 602, 605 (1964), our supreme court stated:
" ' "[W]e held in Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406, 407 [ (1928) ], 'A trial de novo means a new trial "as if no trial had ever been had, and just as if it had originated in the circuit court," ' citing Louisville & N.R.R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733, 735 [ (1899) ], wherein this court said:
" ' " '... The appeal [to be tried de novo], when taken, operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment. The judgment of the justice cannot upon the trial in the circuit court be looked to as a matter of evidence or of estoppel.' " '
" Petersen v. Woodland Homes of Huntsville, Inc., 959 So.2d 135, 139 (Ala. Civ. App. 2006).
"Thus, to the extent that Crews complains about the actions taken by the district court, we cannot reach those issues. The district court's judgment has been supplanted by the judgment rendered by the circuit court, and we may review only that judgment on appeal."

218 So.3d at 370-71.

However, Casey's fourth issue-that the circuit court improperly entered a final judgment on the merits after notifying the parties of its intent to conduct only a pretrial hearing-is not so easily disposed of. As we have noted, the circuit court, after Casey filed his notice of appeal seeking a trial de novo before a jury, entered, in sequence, an order setting the case for a bench trial on April 20, 2017, an order setting the case for a jury trial on June 19, 2017; an order setting the case for a pretrial hearing on June 19, 2017; and an order continuing that pretrial hearing by one calendar day to June 20, 2017. There is no indication in the record that the parties were informed on or before June 20, 2017, that the circuit court would consider the merits of the claims asserted by Bingham and her husband at what that court designated as a "pretrial hearing."

Alabama caselaw supports Casey's contention that the circuit court could not, through the vehicle of a pretrial hearing, summarily deny his statutory right to a trial de novo. "The pre-trial procedure established by Rule 16, [Ala.] R. Civ. P., is designed to clarify and simplify the issues to be tried." Arfor-Brynfield, Inc. v. Huntsville Mall Assocs., 479 So.2d 1146, 1149 (Ala. 1985). However, as Judge Crawley correctly noted in the main opinion in Brown v. Brown, 896 So.2d 573 (Ala. Civ. App. 2004), the general rule is that "pretrial conferences are not intended to be a forum in which the parties present evidence." 896 So.2d at 575. Similarly, in issuing a writ of mandamus to a trial court to compel that court to allow a proposed amendment to a complaint after the holding of a pretrial conference, our supreme court, less than three years after the Alabama Rules of Civil Procedure became effective, deemed it important to emphasize that "the pre-trial conference is not a trial on the merits, and it should not result in an order so rigid as to preclude a full adjudication of each case." Huskey v. W.B. Goodwyn Co., 295 Ala. 1, 7 n.1, 321 So.2d 645, 648 n.1 (1975) (emphasis added).

The actions of the circuit court in this case, which encompassed scheduling a pretrial conference only to then review evidentiary submissions from Bingham and her husband and to thereafter enter a judgment in their favor on the merits of the case, are reminiscent of the former practice of some trial courts of granting "motions to compel" medical treatment in workers' compensation actions, thereby summarily granting a substantial portion of the relief sought by the employees in such actions without affording employers all of the process due under our adversarial system. This court noted the impropriety of that former practice in Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala. Civ. App. 2007). Speaking through Judge Moore, this court first observed that nothing in the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq., "authorize[d] a circuit court with jurisdiction over a controversy regarding the necessity of medical benefits to decide, on a motion of the employee filed before a trial and a determination on the merits, that the employer is compelled to provide medical or surgical treatment to the employee." 963 So.2d at 659. This court further concluded that such a motion was not properly cognizable under civil procedural rules governing discovery (because it sought a judgment on the merits), judgments on the pleadings (because the pleadings in that case showed a dispute regarding the employer's liability), and summary judgments (because a proper motion, supported by a narrative summary of undisputed facts revealed by documents on file, had not been filed and a hearing thereon had not been set by the trial court after proper notice). 963 So.2d at 659-60.

Just as the employee in a workers' compensation action "bears the burden of proving each and every fact prerequisite to a recovery of medical expenses, including the essential threshold fact that he or she sustained a work-related injury that necessitated the medical or surgical treatment obtained," Ex parte Publix, 963 So.2d at 661, plaintiffs in an action alleging unlawful detainer or forcible entry and detainer, such as Bingham and her husband, have the burden to prove "prior possession in [themselves] and either a forcible entry or an unlawful detainer by defendants, or else to show a title in [themselves] superior to that of defendants." Daniels v. Williams, 177 Ala. 140, 142, 58 So. 419, 420 (1912). The circuit court in this case implicitly concluded, after a review of evidentiary materials and other matters at a pretrial conference, that Bingham and her husband had met their substantive burden so as to entitle them to relief, yet the court did not thereby afford Casey his due-process rights to " 'notice [and] a hearing on the merits of the controversy in accord with that notice' " in ruling in their favor. Champion v. Champion, 693 So.2d 510, 511 (Ala. Civ. App. 1997) (emphasis added; quoting Opinion of the Justices No. 238, 345 So.2d 1354, 1355 (Ala. 1977) ).

Based upon the foregoing facts and authorities, we reverse the judgment of the Marshall Circuit Court and remand the cause for a trial, or other further proceedings, in Casey's de novo appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      Although the district court opined that that answer had been untimely filed, Bingham and her husband have conceded on appeal that Casey's district-court answer was timely. See generally Rule 12(dc), Ala. R. Civ. P. (providing that "a defendant shall serve an answer within seven (7) calendar days" of service in an unlawful-detainer action commenced in a district court), Rule 6(a), Ala. R. Civ. P. (providing that, when the last day of a period for performing a required act in a district court falls on a Sunday, "the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday"), and Rule 6(dc), Ala. R. Civ. P.

      We note that, contrary to Rule 40(dc), Ala. R. Civ. P., less than 14 days' notice was provided of the trial date by the district court.

      Casey's appellate brief invokes Rule 28(h), Ala. R. App. P., as authority for attaching an "appendix" purporting to be a filing in the quiet-title/declaratory-judgment action. That rule applies solely to reproduction of "statutes, rules, regulations," and similar materials. On our own motion, we hereby strike that "appendix" from consideration on appeal. See Hollingsworth v. Richardson, 72 So.3d 1262, 1263 n.1 (Ala. Civ. App. 2011) ("[T]his court does not consider 'appendices' to briefs that do not contain either material that also appears in the appellate record ... or statutory or regulatory material as to which Rule 28(h), Ala. R. App. P., applies." (second emphasis added) ).

      To the extent that Bingham and her husband contend that the circuit court could disregard Casey's jury-trial demand because, they say, he failed to pay the required fee for a jury trial, we note that this court, in Proctor v. Garrison, 571 So.2d 1208 (Ala. Civ. App. 1990), held that a party should not be denied a jury trial solely based upon delinquency in payment of a jury-trial fee.

      The main opinion in Brown was concurred in by two judges; however, in concurring in the result to reverse the trial court's judgment in that case, the author of this opinion differed with the main opinion only on the limited point of the necessity of overruling Aguilar v. Spradlin, 408 So.2d 525 (Ala. Civ. App. 1981). Brown, 896 So.2d at 576 (Pittman, J., concurring in the result); see also Radford v. Radford, 917 So.2d 155, 159 (Ala. Civ. App. 2005) (Pittman, J., concurring in the result).


author: DONALDSON, Judge.

text:
    A.T. v. D.M.
    2170095 2170096
    Court of Civil Appeals of Alabama.
    May 11, 2018
    Shirley Ann Millwood, Alexandria, for appellant.
    Jayme K. Amberson, Piedmont, for appellee.
   DONALDSON, Judge.

A.T. ("the mother") appeals from two judgments of the Calhoun Juvenile Court ("the juvenile court") ordering, respectively, that custody of D.T. and J.T. ("the children") be modified by transferring sole physical custody from the mother to D.M. ("the father"). We conclude that the mother's notices of appeal were untimely filed and dismiss the appeals.

Facts and Procedural History

On July 29, 2016, the father filed a separate petition for each child in the juvenile court, which had previously determined the father's paternity of the children, alleging "[t]hat due to present circumstances" it would be in the best interest of the children to establish custody with the father or, in the alternative, to grant the father "placement time" with the children. See § 12-15-115(a)(7), Ala. Code 1975 ("A juvenile court shall ... exercise original jurisdiction of ... [p]roceedings to establish, modify, or enforce support, visitation, or custody when a juvenile court previously has established parentage."). The mother filed an answer to each petition; she also filed motions to dismiss the actions, which the juvenile court denied. On June 26, 2017, and August 22, 2017, the juvenile court held a final hearing, at which the juvenile court heard testimony concerning each of the petitions filed by the father. On September 1, 2017, the juvenile court rendered a judgment, which was entered in each action, stating, in pertinent part:

"Upon evidence and testimony presented, the Court finds as follows:
"1. That the father proved that he is a fit and proper person to have custody, and that a change in circumstances occurred. That, based on all of the testimony and evidence submitted at trial, the change in custody would materially promote the children's best interests and the positive good brought about by the change in custody would far outweigh any inherent disruption of the children's lives. Ex parte McLendon, 455 So.2d 863 (Ala. 1984).
"It is therefore ORDERED, ADJUDGED, and DECREED as follows:
"A. Custody and Placement:
"1. The father ... is granted the general care, custody and control of the parties' minor children, [D.T.] ... and [J.T.] ... subject to the mother's right of placement. However, the exercise of this primary authority is not intended to negate the responsibility of both parties to notify and communicate with each other. In regard to decisions involving medical or dental emergencies, the parent having actual physical custody shall be authorized to obtain any emergency treatment necessary, without the mutual consent of both parties. Each party shall notify the other as to the dates and times of all conferences, programs or events relating to academic, religious, civic, athletic, and any other activities of the minor children, so as to afford both parties an opportunity to participate in such activity.
"2. The mother is awarded the following supervised visitation with the minor children:
"a. Every other weekend from Friday at 6:00 p.m. Alabama time until Sunday at 6:00 p.m. Alabama time, beginning the 15th day of September, 2017. The mother and father shall exchange the children at 6:00 p.m. Alabama time at the McDonald's located at the Douglasville, Georgia, exit off of I-20. The mother's sister, [L.H.], shall supervise the mother's visitation with the children. In the event the mother's sister is unable to supervise the mother's placement, the parties can agree upon an alternate supervisor or the mother can pay for a licensed supervisor.
"b. The mother shall begin unsupervised visitation when she presents a clean drug screen administered by a DOT certified laboratory to the father.
"....
"E. Child Support
"1. The mother shall pay the sum of $523 per month to the father for the support and maintenance of the parties' minor children, effective the 1st day of September, 2017. Said payments shall be made [by] the [mother] directly to the Office of the Clerk of the Circuit Court of Calhoun County.
"2. The award of child support made herein was determined by application of the Child Support Guidelines established by Rule 32, [Ala. R. Jud. Admin.]. A copy of the Guideline form has been filed herein and is made a part of the record in this case.
"3. Reference is hereby made in this Order to a separate Order entitled Order of Continuing Income Withholding for Support the entry of which is required of this Court by the provisions of § 30-3-61, [Ala. Code 1975,] and which is specifically incorporated herein as a part of this Court's Order and Judgment in this cause.
"....
"F. All requests for relief not specifically granted herein are denied."

On September 7, 2017, the juvenile court rendered an amended judgment, which was entered in each action. The only change between the September 1, 2017, judgment and the September 7, 2017, judgment is the removal of one sentence in subsection E.1. of the judgment requiring the mother to make child-support payments directly to the circuit clerk's office. The juvenile court's amended judgment reads, in pertinent part: "The mother shall pay the sum of $523.00 [per] month to the father for the support and maintenance of the parties' minor children, effective the 1st day of September, 2017."

On September 20, 2017, the mother filed a motion in each case seeking a new trial or, in the alternative, to alter, amend, or vacate the juvenile court's judgment. In her motions, the mother alleged that the juvenile court's judgment is contrary to the evidence presented and to the applicable law and that the juvenile court was without jurisdiction to modify custody of the children without making a finding of dependency. The mother also alleged that the juvenile court had erred by awarding the father relief that he had not specifically requested, that the father's pleadings were insufficient, and that the juvenile court had erred in denying the mother's motion to dismiss, among other things. The father filed responses to the mother's motions. The juvenile court set the mother's motions for a hearing on October 2, 2017; however, it is not clear from the record whether that hearing took place, and there is no indication in the record that the juvenile court entered any order in response to the mother's September 20, 2017, motions. The mother filed a notice of appeal in each case on October 17, 2017; this court consolidated the appeals ex mero motu.

Discussion

"Before addressing the merits of the issues raised on appeal, we must first consider whether this court has jurisdiction over the mother's appeal. ' "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." ' Singleton v. Graham, 716 So.2d 224, 225 (Ala. Civ. App. 1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala. Civ. App. 1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ). ' " '[S]ubject-matter jurisdiction may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.' " ' M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008) (quoting S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala. Civ. App. 2005), quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ. App. 2003) )."

Fox v. Arnold, 127 So.3d 417, 421 (Ala. Civ. App. 2012).

We must first decide if the mother's postjudgment motions and notices of appeal were timely filed to invoke this court's jurisdiction. See Rule 28(c), Ala. R. Juv. P.; and Rule 4(a), Ala. R. App. P. This court requested that the parties submit letter briefs addressing whether the juvenile court's September 7, 2017, judgment corrected a clerical mistake under Rule 60(a), Ala. R. Civ. P., and, thus, related back to the September 1, 2017, judgment. In his letter brief, the father argues that the mother's notices of appeal were untimely, asserting that the juvenile court's September 7, 2017, judgment did not alter the rights of the mother in any way. In her letter brief, the mother argues that the deletion of the sentence in subsection E.1. of the September 1, 2017, judgment was not clerical in nature and that, therefore, her notices of appeal were timely taken from the September 7, 2017, amended judgment. The mother did not submit legal authority to support her position.

Rule 60(a) provides, in pertinent part, that "[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative." The correction of a clerical error, however, does not change the effective date of the original judgment for purposes of filing a postjudgment motion or a notice of appeal. See, e.g., J.S. v. S.W., 702 So.2d 169, 171 (Ala. Civ. App. 1997).

" ' "The trial court's authority to enter a Rule 60(a) [, Ala. R. Civ. P.,] order or a judgment nunc pro tunc is not unbridled. Merchant v. Merchant, 599 So.2d 1198 (Ala. Civ. App. 1992). It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. Michael [v. Michael, 454 So.2d 1035 (Ala. Civ. App. 1984) ].' "
" ' McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala. Civ. App. 1995).
" ' "It is important to note that the object of a judgment nunc pro tunc or motion under rule 60(a) [, Ala. R. Civ. P.,] is to make the judgment or record speak the truth. Ward v. Ullery, 442 So.2d 99 (Ala. Civ. App. 1983). It cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced. Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947) ; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2854 (1973)."
" ' Michael v. Michael, 454 So.2d 1035, 1037 (Ala. Civ. App. 1984).' "

K.P. v. Madison Cty. Dep't of Human Res., 243 So.3d 835, 838-39 (Ala. Civ. App. 2017) (quoting Smith v. Smith, 991 So.2d 752, 754 (Ala. Civ. App. 2008) ). In subsection E.3. of both the September 1 and September 7, 2017, judgments, the juvenile court states:

"Reference is hereby made in this Order to a separate Order entitled Order of Continuing Income Withholding Order for Support the entry of which is required of this Court by the provisions of § 30-3-61, [Ala. Code 1975,] and which is specifically incorporated herein as a part of this Court's Order and Judgment in this cause."

As noted above, the only change in the September 7, 2017, judgment is the deletion of a sentence in subsection E.1. that states that child-support "payments shall be made [by] the [mother] directly to the Office of the Clerk of the Circuit Court of Calhoun County." Under the September 1, 2017, judgment, which contained that sentence, the mother would have been required to pay child support directly to the circuit clerk's office and also would have been subjected to having her child-support obligation withheld pursuant to an income-withholding order, i.e., she would have been making two child-support payments per month. The September 7, 2017, judgment corrected that error.

In order to be a clerical mistake subject to Rule 60(a), " ' " 'it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned.' " ' " Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 217 (Ala. 2008) (quoting Ex parte Brown, 963 So.2d 604, 608 (Ala. 2007), quoting in turn Higgins v. Higgins, 952 So.2d 1144, 1148 (Ala. Civ. App. 2006), quoting in turn Ex parte Continental Oil Co., 370 So.2d 953, 956 (Ala. 1979) (Torbert, C.J., concurring specially) ). Because the September 1, 2017, judgment and the September 7, 2017, judgment both reference the juvenile court's income-withholding order, it may be "gleaned" from the record that the juvenile court intended that the mother's child-support obligation be paid once per month through the income-withholding order and not by payment directly to the circuit clerk's office.

Because we have determined that the juvenile court's September 7, 2017, judgment corrected a clerical error in the September 1, 2017, judgment, we must determine whether the mother's postjudgment motions and notices of appeal were timely filed.

"A change to a judgment to correct a clerical error relates back to the date of the entry of the final judgment. See [ Luker v. Carrell, 25 So.3d 1148, 1152 (Ala. Civ. App. 2006), rev'd on other grounds, Ex parte Luker, 25 So.3d 1152 (Ala. 2007) ]. Unlike when a judgment 'correction' actually amounts to an amendment of a judgment that changes a prevailing party, a correction to a final judgment pursuant to Rule 60(a) 'has no bearing on the timeliness of an appeal from the original uncorrected judgment.' See J.S. v. S.W., 702 So.2d 169, 171 (Ala. Civ. App. 1997)."

Barnes v. HMB, LLC, 24 So.3d 460, 462 (Ala. Civ. App. 2009) (footnote omitted). Because the September 7, 2017, judgment relates back to the September 1, 2017, judgment, the appropriate date for calculating the time in which to file a postjudgment motion or a notice of appeal is September 1, 2017. In a juvenile case, the time for filing a postjudgment motion or a notice of appeal is 14 days from the date of the judgment. See Rule 28, Ala. R. Juv. P.; Rule 4, Ala. R. App. P. In this case, the mother filed her postjudgment motions on September 20, 2017, 19 days after the entry of the juvenile court's judgment. Because the mother's postjudgment motions were not timely filed, the time for filing the notices of appeal was not tolled. See C.B. v. D.P.B., 80 So.3d 918, 920 (Ala. Civ. App. 2011) (citing T.G. v. Etowah Cty. Dep't of Human Res., 937 So.2d 523, 524 (Ala. Civ. App. 2005) ). The mother filed her notices of appeal on October 17, 2017, 46 days after the entry of the juvenile court's judgment. Because the time for filing the notices of appeal had not been tolled by timely filed postjudgment motions, the mother's notices of appeal were also untimely filed. "An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." Rule 2(a)(1), Ala. R. App. P. Accordingly, we dismiss the mother's appeals.

2170095-APPEAL DISMISSED.

2170096-APPEAL DISMISSED.

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


text:
    Michael BRAY v. Jennifer BRAY (Schafer)
    2170102
    Court of Civil Appeals of Alabama.
    May 11, 2018
    William Jackson, Florence, for appellant.
    Lisa M. Ivey, Jasper, for appellee.
   DONALDSON, Judge.

Michael Bray ("the father") appeals from the judgment of the Winston Circuit Court ("the trial court") granting Jennifer Bray (Schafer) ("the mother") sole physical custody of the parties' children ("the children"). We dismiss the appeal because it was taken from a nonfinal judgment.

Facts and Procedural History

On November 9, 2013, the father filed a complaint seeking a modification of the judgment divorcing him and the mother and also a finding of contempt against the mother. The mother answered and asserted a counterclaim seeking a modification of custody to grant her sole physical custody of the children and child support from the father. On June 28, 2017, after a trial, the trial court entered a judgment granting sole physical custody of the children to the mother, granting visitation to the father, and ordering the father to pay the mother child support. Although the judgment modified the divorce judgment in other respects, the judgment did not include a ruling on the father's contempt claim.

On July 5, 2017, the father filed a motion to reconsider the judgment, requesting a hearing. On July 26, 2017, the father filed a motion to alter, amend, or vacate the judgment or, in the alternative, a motion for a new trial, again requesting a hearing on the motion. The trial court did not conduct a hearing or rule on the father's motions.

On October 23, 2017, the father filed a notice of appeal to this court. On appeal, the father contends that the denial of his July 26, 2017, motion by the operation of law, without a hearing, was reversible error and that insufficient evidence supports the trial court's modification of custody.

Discussion

As a threshold matter, we must determine whether we have jurisdiction over this appeal.

" 'Even though the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. "Jurisdictional matters are of such importance that a court may take notice of them ex mero motu." McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004). "[T]he question whether a judgment is final is a jurisdictional question." Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala. Civ. App. 2002). "A final judgment is one that disposes of all the claims and controversies between the parties." Heaston v. Nabors, 889 So.2d 588, 590 (Ala. Civ. App. 2004).' "

Martin v. Cowart, 84 So.3d 114, 115 (Ala. Civ. App. 2011) (quoting Decker v. Decker, 984 So.2d 1216, 1219 (Ala. Civ. App. 2007) ); see Wesley v. Brandon, 419 So.2d 257, 258 (Ala. Civ. App. 1982) (quoting Sexton v. Sexton, 280 Ala. 479, 481, 195 So.2d 531, 533 (1967) ) (observing that whether an order is final may be phrased as whether there is " 'something more for the [trial] court to do' ").

In this case, the father filed a complaint seeking, among other things, a finding of contempt against the mother, and he reasserted that claim at trial. The judgment did not dispose of the father's contempt claim. Therefore, the father's appeal was taken from a nonfinal judgment. See Martin v. Cowart, 84 So.3d at 116 (holding that a judgment lacking a disposition of a party's contempt petition rendered the judgment nonfinal). Accordingly, we dismiss the appeal. See Nicke v. Minter, 195 So.3d 274, 278 (Ala. Civ. App. 2015) (holding that reviewing court had a duty to dismiss the appeal upon a determination that the appealed order was nonfinal).

The mother's request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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

      Although a motion to reconsider may be treated as a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., when it is directed to a final judgment, see Evans v. Waddell, 689 So.2d 23, 26-27 (Ala. 1997), as explained in this opinion, the June 28, 2017, judgment is not final.

      We note that Rule 59, Ala. R. Civ. P., applies only in regard to a final judgment. Day v. Davis, 989 So.2d 1118, 1120 (Ala. Civ. App. 2008). We also note that the father alleges that the mother's counterclaim was unverified and should have been filed as a separate action. However, no legal authority was provided to support that argument. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position.").

      An appeal of an order that does not dispose of all claims or controversies " 'may be had "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson, 448 So.2d 355, 358 (Ala. 1984).' " Nicke v. Minter, 195 So.3d 274, 278 (Ala. Civ. App. 2015) (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002) ).


author: THOMPSON, Presiding Judge.

text:
    EX PARTE SEARS ROEBUCK AND CO.
    (In re: Jeffrey Donaldson v. Sears Roebuck and Co.)
    2170632
    Court of Civil Appeals of Alabama.
    May 11, 2018
    Brent A. Tyra of Smith, Tyra, Thomas & Haggard, LLC, Alabaster, for petitioner.
    Lauren Shine of Shine Law Firm, LLC, Birmingham, for respondent.
   THOMPSON, Presiding Judge.

In this workers' compensation action, Sears Roebuck and Co. ("Sears") petitions this court for a writ of mandamus directing the Jefferson Circuit Court ("the trial court") to vacate its order compelling Sears to approve certain medical treatment for its former employee Jeffrey Donaldson. The medical treatment at issue had been prescribed by Donaldson's authorized treating physician. However, Sears argued to the trial court that it disputed whether Donaldson's injuries were compensable under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975. Accordingly, Sears said, the trial court could not properly order it to provide the medical treatment at issue without first holding an evidentiary hearing in accordance with Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala. Civ. App. 2007).

The materials submitted to this court in support of Sears's petition for the writ of mandamus indicate the following. On August 16, 2017, Donaldson filed a complaint against Sears in the Bessemer division of the trial court. In his complaint, Donaldson alleged that, on or about January 19, 2016, he injured his back while repairing an air-ventilation unit during the course of his employment with Sears. As a result of his injuries, Donaldson sought temporary and permanent disability benefits, vocational benefits, medical benefits, and reimbursement for medical expenses related to the alleged on-the-job injury.

On September 19, 2017, Sears moved to dismiss the action or to transfer it to the Birmingham division of the trial court on the ground that the injury occurred within the geographical limits of the Birmingham division. On December 11, 2017, the motion to transfer was granted, and the action was transferred to the Birmingham division.

On January 19, 2018, Donaldson filed a motion to compel Sears to provide medical treatment recommended by his authorized treating physician, Dr. Resit Cezaryirli. In the motion, Donaldson stated that Dr. Cezaryirli had performed spinal surgery on him in November 2016. Donaldson said that he had continued to suffer "severe radiating pain and numbness" in his lower back and lower extremities, so, in December 2017, Dr. Cezaryirli had prescribed further diagnostic testing and an "LSO brace" to relieve Donaldson's symptoms. No exhibits were attached to the motion to compel.

On February 5, 2018, the trial court set a hearing on Donaldson's motion to compel for February 26, 2018. On February 21, 2018, Sears answered Donaldson's complaint. In its answer, Sears acknowledged that it had provided workers' compensation benefits to Donaldson after he made his claim. However, Sears continued, those "benefits were provided in compliance with Alabama Code § 25-5-56, and [were] not to be construed as an admission of liability as said benefits were provided 'without prejudice.' " Sears further denied the compensability of Donaldson's injury. As defenses, among others, Sears denied that Donaldson had sustained a compensable injury that arose out of and occurred during the course of his employment and asserted that, to the extent Donaldson was disabled, that disability was caused by a preexisting or subsequent injury or condition for which Sears was not responsible.

On February 23, 2018, Sears filed an opposition to Donaldson's motion to compel arguing, among other things, that, because compensability was disputed, the trial court was required to hold an evidentiary hearing on the issue of compensability as required by Ex parte Publix, supra, before it could order Sears to provide the treatment Dr. Cezaryirli was recommending. Sears also pointed out that there were other issues to be considered, such as a possible preexisting disability and lack of causation, that had to be determined before it could be ordered to pay the expenses Donaldson was requesting. In opposing the motion to compel, Sears pointed out that it was entitled to 60 days in which to conduct discovery on the issue of compensability. Therefore, Sears suggested that the trial court set a compensability hearing for no sooner than 60 days later, "at which time the parties will present evidence regarding the compensability of [Donaldson's] claim."

After hearing arguments of the parties on February 26, 2018, as scheduled, but without receiving any evidence at that hearing, the trial court granted the motion to compel on March 5, 2018, and ordered Sears to approve the treatment that Dr. Cezaryirli had recommended. On April 3, 2018, Sears filed in this court a presumptively timely petition for a writ of mandamus. See Rule 21(a)(3), Ala. R. App. P.

" ' "A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala. 1991)." '
" Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala. 2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998) ). Section 12-3-10, Ala. Code 1975, grants this court appellate jurisdiction to issue extraordinary writs in workers' compensation cases. Ex parte Alabama Power Co., 863 So.2d 1099, 1101 (Ala. Civ. App. 2003)."

Ex parte Sunbelt Transp., Inc., 23 So.3d 1138, 1140 (Ala. Civ. App. 2009).

The issue Sears presents in its petition has been decided in previous opinions issued by this court, and the applicable law is now well settled. In Ex parte Steve Cagle Trucking Co., 989 So.2d 560, 564 (Ala. Civ. App. 2008), this court held that a trial court erred in failing to hold an evidentiary hearing on the issue of compensability before ordering the employer to pay for medical treatment for the alleged injury. This court wrote:

" 'An evidentiary hearing to resolve a dispute over compensability and the payment of medical benefits is anticipated in § 25-5-77(a)[, Ala. Code 1975].'
Ex parte Publix [Super Markets, Inc.], 963 So.2d [654] at 662 [ (Ala. Civ. App. 2007) ] (Thompson, P.J., concurring in the result). Like the trial court in Ex parte Publix, the trial court in this case, on Cagle's motion, compelled SCT to pay for Cagle's medical treatment before a trial determining whether Cagle suffers from a compensable injury. However, the [Workers' Compensation] Act does not authorize the trial court to compel payment for medical treatment in this manner. Id. at 659. Accordingly, the trial court erred in entering the order compelling SCT to pay for medical treatment provided by Dr. Roberts to Cagle."

989 So.2d at 564.

Because the trial court in this case did not hold an evidentiary hearing on the issue of compensability, the order compelling Sears to pay for Donaldson's medical treatment is improper and due to be vacated.

In opposing Sears's petition for a writ of mandamus, Donaldson contends that Sears's response to his motion to compel was untimely. Specifically, he argues that Sears's opposition to his motion to compel was itself a motion and that, because it was filed only three days before the hearing rather than the five days required by Rule 6(d), Ala. R. Civ. P., it must be stricken. In making his argument, Donaldson casts Sears's response to his motion to compel as a motion for a hearing on compensability. Admittedly, in opposing the motion to compel, one of the grounds Sears asserted was that Donaldson's motion could not properly be granted until an evidentiary hearing was held on the issue of compensability. Sears then requested that the trial court schedule such a hearing not less than 60 days from the date Sears's response to Donaldson's motion to compel was filed so that discovery could be completed. However, the document Sears filed with the trial court three days before the hearing was clearly intended as a response opposing Donaldson's motion to compel.

Rule 6(d), Ala. R. Civ. P., which Donaldson relies on to say that Sears's response was untimely, provides:

"A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.... When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), [Ala. R. Civ. P.,] opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time."

Donaldson cites, and this court's research has revealed, no authority for the proposition that written opposition to a motion to compel must be filed five days before the hearing on the motion to compel. Accordingly, we find Donaldson's argument to be without merit.

Because the trial court failed to hold an evidentiary hearing on the issue of compensability, its order directing Sears to approve medical treatment must be vacated. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to vacate its order of March 5, 2018.

PETITION GRANTED; WRIT ISSUED.

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

      Donaldson originally named Sears Holding Corp. as the defendant in this case. On September 26, 2017, Donaldson filed an amended complaint in which he substituted "Sears Roebuck and Co." as the defendant. In its answer, Sears did not indicate that the wrong corporate entity had been named as the defendant. In its mandamus petition, Sears states that Donaldson "was employed by Defendant Sears, Inc."

      In pertinent part, Ala. Code 1975, § 25-5-56, provides:
      "All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice."


author: THOMAS, Judge.

text:
    EX PARTE John LAMAR
    (In re: John Lamar v. Alrica Bell Lamar)
    2170649
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Alyssa L. Hawkins of Jones, Hawkins & Associates, Montgomery, for petitioner.
    Submitted on mandamus petition only.
   THOMAS, Judge.

John Lamar ("the husband") has filed a petition for the writ of mandamus with this court, seeking an order compelling the Clarke Circuit Court ("the trial court") to enter a judgment divorcing him from Alrica Bell Lamar ("the wife") and resolving the issue of the custody of the parties' child. According to the statements in the petition and the materials submitted in support of the petition, the husband first filed his complaint seeking a divorce from the wife in the Montgomery Circuit Court on December 21, 2015. In February 2016, the Montgomery Circuit Court transferred the divorce action to the trial court.

In January 2017, the trial court first set the case for a trial to be held in June 2017. The wife and her attorney failed to appear at the June 2017 trial, allegedly because of transportation issues, and the wife moved the trial court to reopen the action so that she could present testimony. Although the husband objected to the wife's request, the trial court granted her motion and reset the matter for a date in July 2017 for additional testimony. However, the trial court's order indicated that it intended to hear evidence concerning only temporary custody, visitation, and child-support issues at the July 2017 hearing. The husband objected to the trial court's order, seeking to have the trial court hold a final trial in the matter, but, after the July 2017 hearing, the trial court issued an order on August 9, 2017, addressing only temporary custody, visitation, and child-support issues.

On August 28, 2017, the husband moved for a final trial on the divorce action. The trial court set a trial for November 9, 2017. The husband's petition indicates that the trial was conducted and concluded on November 9, 2017. On January 25, 2018, the husband filed a motion seeking the entry of a final divorce judgment. According to the statements in the petition, the trial court has not yet issued a final judgment divorcing the parties and resolving the related issues.

" ' "The rules of law applicable to the case are simple and well settled. The writ of mandamus will lie from a superior to an inferior or subordinate court, in a proper case, to compel it to hear and decide a controversy of which it has jurisdiction; or, where the cause has been heard, to compel such inferior court to render judgment or enter a decree in the given case. But its use is not warranted to direct what particular judgment shall be rendered in a pending cause, nor is it the proper function of such remedial writ to re-examine, or correct errors in any judgment or decree so rendered. 'The rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done; or if it be ministerial, the mandamus will direct the specific act to be performed.' Ex parte Newman, [81] U.S. 152, 14 Wall. 152, 169, 20 L.Ed. 877 [ (1871) ]; High on Extr. Rem. §§ 150-152, 266; Ex parte Schmidt, 62 Ala. 252 [ (1878) ]; Ex parte Mahone, 30 Ala. 49 [ (1857) ]. The principle, of course, universally prevails, that in no event will the writ ever be awarded where full and adequate relief can be had by appeal, writ of error, or otherwise." ' "

Ex parte Jim Walter Res., Inc., 91 So.3d 50, 53 (Ala. 2012) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881) ).

Nothing in the materials before us indicates that the trial court has a reason for delaying the entry of the divorce judgment in this case for nearly six months. Based on the petition and the materials presented in support of the petition, we conclude that the husband is entitled to the writ he seeks directing the trial court to enter a divorce judgment resolving the issues between the parties. See Ex parte Ford Motor Credit Co., 607 So.2d 169, 170 (Ala. 1992) (ordering a trial court to rule on a Rule 64, Ala. R. Civ. P., motion); Ex parte Gamble, 709 So.2d 67, 70 (Ala. Civ. App. 1998) (ordering a trial court to rule on a pending Rule 60(b), Ala. R. Civ. P., motion). Accordingly, the petition is granted.

PETITION GRANTED; WRIT ISSUED.

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

      Although this court called for an answer to the petition, no answer was received. Thus, we will consider the averments of fact in the husband's petition as true. Ex parte Turner, 840 So.2d 132, 134-35 (Ala. 2002).


author: MOORE, Judge. THOMPSON, Presiding Judge, concurring in part and dissenting in part.

text:
    Ida Le Blanc SWIFT v. David Dauphin SWIFT, Sr.
    2170023
    Court of Civil Appeals of Alabama.
    May 25, 2018
    Rita H. Scott of Scott & Scott Law, LLC, Fairhope; and Wendy Brooks Crew of Crew Law Group PC, Birmingham, for appellant.
    Floyd C. Enfinger, Jr., and Margaret Enfinger Pace of Law Office of Floyd C. Enfinger, Jr., P.C., Montrose, for appellee.
   MOORE, Judge.

Ida Le Blanc Swift ("the wife") appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") divorcing her from David Dauphin Swift, Sr. ("the husband"), to the extent that the judgment divided the parties' property. We affirm in part and reverse in part.

Procedural History

On February 24, 2014, the wife filed a complaint seeking a divorce from the husband. The husband answered the complaint on February 28, 2014.

After a trial, the trial court entered a judgment on November 18, 2016, divorcing the parties; ordering the husband to pay the wife $5,000 per month in periodic alimony; awarding the husband the parties' boat, all his business interests, the vehicles in his possession, the parties' house located in Lillian ("the Lillian house"), and the contents of the Lillian house, with the exception of any items inherited from the wife's family; and awarding the wife the parties' condominium located in Fairhope ("the Fairhope condo"), the contents of the Fairhope condo, with the exception of any items inherited from the husband's family, certain real property owned by the parties located in Conecuh County ("the Conecuh County property"), and the vehicles in her possession. The parties were ordered to divide their United Bank shares, with the husband receiving 90% of the total shares and the wife receiving the remaining 10%, and "[a]ll retirement accounts, investment accounts, annuities, IRAs, and other accounts," with the wife receiving 35% of the funds in those accounts and the husband receiving the remaining 65%. The husband was ordered to "maintain in full force and effect a policy of insurance on his life, with [the wife named] as beneficiary in a benefit amount of no less than $350,000." Finally, the divorce judgment provided:

"12. Any personal property not otherwise disposed of by this Order shall be equally divided between the parties. If the parties cannot mutually agree upon such division, the parties shall compile a list of all such unresolved items. The husband shall have first choice of one item, the wife the next choice of one item, with this process continuing until all items are selected."

On December 16, 2016, the wife filed a motion titled "Motion to Alter Amend or Vacate Pursuant to Rule 59[, Ala. R. Civ. P.]." On February 14, 2017, the trial court entered an order granting the wife's motion in part and stating, in pertinent part:

"Specifically, with regard to the personal property of the parties, each party is to receive any and all items that were given to them or inherited from his or her own family members and the joint personal property that was acquired during the marriage as wedding presents or specific items of sentimental value are to be divided equally. If the parties cannot mutually agree upon such division, the parties shall compile a list of all such unresolved items. The husband shall have first choice of one item, the wife the next choice of one item, with this process continuing until all items are selected."

On March 21, 2017, the wife filed her notice of appeal to this court. That appeal was docketed as appeal no. 2160470. This court subsequently dismissed that appeal as being from a nonfinal judgment. See Swift v. Swift (No. 2160470, Aug. 1, 2017), 266 So. 3d 18 (Ala. Civ. App. 2017) (table).

On August 2, 2017, the wife filed a motion for clarification and a separate motion requesting the trial court to award her the property set forth on a list attached to the motion or to set the matter for a hearing. The husband filed responses to both motions.

On August 21, 2017, this court issued the certificate of judgment in Swift. On September 28, 2017, the trial court entered an order stating, in pertinent part, that "[t]he Husband shall receive any and all property located in the Lillian House and any property that is currently in his possession" and "[t]he Wife shall receive any and all property located in the Fairhope condo and any property that is currently in her possession." On October 4, 2017, the wife filed her notice of appeal.

Facts

The husband testified that the parties had married on December 6, 1975, and that they had had two children together, both of whom were adults at the time of the trial.

According to the husband, his annual income from all sources in 2014 was $358,570. He testified that the parties' income had been derived primarily from his employment with Swift Supply, Inc., a corporation that sells lumber and building materials. At the time of the trial, the husband owned 10% of the shares of Swift Supply and was the chairman of the board of that company. He testified that his base salary is $142,000. The husband also owns a one-third interest in Palustris Products, LLP, which owns a one-half interest in various timberlands and tracts of real property, as well as a one-half interest in Swift Lumber, Inc. The husband's two brothers own the remaining two-thirds interest in Palustris. The husband testified that Palustris is a longtime Swift family asset. The husband also testified that he owns a one-third interest in Swift Brothers, LLC, which owns certain timberland, as well as a one-half interest in a house in Baldwin County, and that his two brothers own the remaining two-thirds interest in Swift Brothers. The husband testified that his interest in Swift Brothers had been inherited.

The husband testified that he had been the chairman of the board of United Bank ("the bank") for approximately 15 years and had been on the board for several years before he began serving as the chairman. He receives fees of $28,000 per year as a result of his position as chairman of the board of United Bank. He testified that he owns 31,772 shares in the bank, that the wife owns 8,217 shares, and that Swift Brothers owns shares as well. He testified that the shares were valued at $8.01 per share at the time of the trial. According to an exhibit introduced by the husband, he had inherited all but 4,079 of his total bank shares; therefore, using the value of $8.01 per share, the value of the husband's inherited shares is $221,820.93 of the parties' $320,311.89 total share value. The wife testified that the parties had used the dividends from the bank shares for their expenses and that the dividends had been reported on their joint income-tax returns.

The husband's financial statement, dated December 31, 2014, indicated that his business interests in Swift Supply, Palustris, and Swift Brothers have a total value of $4,916,000. The husband initially testified that, to his knowledge, his financial statement was correct; however, he later testified that there had been an error in the valuation of the businesses. He did not proffer an alternative value, but he did testify that his shares in Swift Supply were indebted more than they were worth and that they have very little value because they are not marketable. He also testified that the total debt for Palustris and Swift Lumber, of which Palustris owned 50%, was $15,000,000. Bryan Parker, a certified public accountant who testified as the wife's expert witness, valued the husband's interest in the businesses at $4,423,000.

It is undisputed that the wife had never worked for Swift Supply. However, the wife testified that she had helped host social functions for the company, had traveled on business for the company, and had volunteered in the community to assist in raising the company's profile. She worked outside the home less than three years total during the parties' marriage. The wife testified that she had attempted to obtain a license to sell real estate during the pendency of the divorce action but that she had been unable to retain the information required to pass the test.

The wife testified that, during the marriage, the parties had traveled extensively and that she had had a weekly housekeeper and had used a lawn service. The wife testified that, at the time of the trial, her monthly expenses were $8,837.89. She included in those expenses $500 for investments and $500 for contributions to a Roth IRA. She testified that she will receive $1,300 per month in Social Security benefits once the husband attains the age of 66 years.

The husband valued the parties' "retirement accounts, investment accounts, annuities, IRAs, and other accounts" at $1,186,197. The husband's December 31, 2014, financial statement valued those accounts at $917,500. According to the husband, the lawn equipment and boats that were awarded to the husband in the divorce judgment, as amended, were valued at $17,885 and the Lillian house was valued at $687,000. The husband valued the Fairhope condo at $330,000, the Conecuh County property at $72,600, and the wife's Lexus automobile at $27,000.

The husband testified that he planned to retire when he turned 66 in May 2017. The husband testified that he did not want a divorce. The wife testified that the husband had had no interest in her during the last 10 years of the marriage. She testified that she had tried to save their marriage by going to counseling. According to the wife, the husband had attended counseling with her for a period but then had stopped. She testified that she felt that the husband had betrayed her trust by telling her that there was no budget for the Lillian house, which, according to the wife, had caused them to accumulate debt. She also testified that the husband had loaned Swift Supply money without her knowledge and against her wishes. The husband testified that he had had to loan Swift Supply money to keep the business afloat. He also testified that he had believed that the parties would sell their previous house for a higher price than they had eventually sold it. According to the husband, that had resulted in the parties being unable to put as much money into the Lillian house as he had intended. The husband testified, however, that he had paid off the mortgage on the Lillian house using funds he inherited from his father, who died in February 2013, as well as with funds from income-tax refunds. The husband testified that the wife had filed for a divorce immediately after his father's estate had been settled.

Standard of Review

" ' "[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust." Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). " 'The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.' " Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985) ).'
" Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005)."

Weeks v. Weeks, 27 So.3d 526, 529 (Ala. Civ. App. 2008).

Discussion

On appeal, the wife argues that the trial court erred by awarding the husband a portion of certain funds she inherited from her father, specifically, $100,000 that was contained in the Ida Le Blanc Swift Trust; the wife points out that her $100,000 inheritance is included in the accounts of which the husband was awarded 65%.

Section 30-2-51(a), Ala. Code 1975, provides:

"If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage."

At the trial, the wife testified that she had inherited $100,000 from her father and that she had placed those funds in the Ida Le Blanc Swift Trust. The husband testified that the wife is the sole trustee and beneficiary of that trust and that he is not privy to what is contained in the trust. Because the undisputed evidence indicates that the wife had inherited $100,000 from her father and that that money had been held in trust solely for the benefit of the wife and, therefore, had not been used for the common benefit of the parties during their marriage, we conclude that the trial court erred in awarding the husband a portion of those funds.

The wife also argues that the trial court erred in its division of the parties' property.

" 'Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala. 2000) ;
Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993) ; and Montgomery v. Montgomery, 519 So.2d 525 (Ala. Civ. App. 1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala. Civ. App. 1996).
" 'In dividing property and awarding alimony, a trial court should consider "the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties'] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce." Russell v. Russell, 777 So.2d 731, 733 (Ala. Civ. App. 2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996) ; and Brewer v. Brewer, 695 So.2d 1 (Ala. Civ. App. 1996). "A property division that favors one party over another does not necessarily indicate an abuse of discretion." Fell v. Fell, 869 So.2d 486, 496 (Ala. Civ. App. 2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala. Civ. App. 1988) ).'
" Turnbo v. Turnbo, 938 So.2d 425, 429-30 (Ala. Civ. App. 2006)."

Walker v. Walker, 216 So.3d 1262, 1270-71 (Ala. Civ. App. 2016).

The wife specifically argues that the parties' interests in the businesses and the bank shares were marital property and should have been equitably divided. With regard to the bank shares, the husband presented evidence indicating that the majority of those shares had been inherited by him. Although the wife testified that income from those shares had been used to pay the parties' expenses, our supreme court has held that "[n]othing in [ § 30-2-51(a) ] states that if one party's inheritance or gifts are used for the parties' common benefit then the trial judge must consider the inheritance or gifts when making the property division." Ex parte Drummond, 785 So.2d 358, 362 (Ala. 2000). The decision whether to consider that property when making the property division is left to the discretion of the trial court. Id. In this case, the trial court appeared to have considered all the parties' bank shares as marital property because it divided the entire number of bank shares between the parties, awarding the husband 90% of the shares and awarding the wife the remaining 10%. However, the trial court was also within its discretion, in determining how to equitably divide the bank shares, to consider that the source of the majority of the bank shares was from an inheritance received by the husband; therefore, we cannot conclude that the award of 90% of the total bank shares to the husband was inequitable. Walker, 216 So.3d at 1270-71.

With regard to the award of the interests in the businesses, the evidence indicated that Palustris is a longtime Swift family asset and that the husband's interest in Swift Brothers had been inherited. With regard to the husband's interest in Swift Supply, the evidence was undisputed that the parties' primary source of income throughout the marriage had been from Swift Supply. The husband worked for Swift Supply, and the wife admitted that she had never worked for Swift Supply. Considering that the parties' income from Swift Supply had been attained solely through the husband's efforts and that the other businesses in which the husband had an interest had been passed down through the husband's family, the trial court could have concluded that it was equitable for the husband to retain his interest in those businesses.

The wife also argues that the trial court's overall division of the parties' property was inequitable and that the trial court should have awarded her alimony in gross to compensate her for her property interest in the marriage.

" 'The purpose of the division of marital property is to give "each spouse the value of [his or her] interest in the marriage. Each spouse has a right, even a property right in this." ' " Weeks, 27 So.3d at 529 (quoting Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala. Civ. App. 1998), quoting in turn Pattillo v. Pattillo, 414 So.2d 915, 917 (Ala. 1982) ). The wife argues in her brief to this court that, considering all the parties' assets, including the husband's interests in the businesses, she received only 12% of the value of the parties' total assets. We note, however, that the husband's valuations at trial differ from the values that the wife advances on appeal. For instance, at trial, the wife valued the Fairhope condo at $319,000 and the husband valued it at $330,000. In addition, the wife assigned a value of $15,487.41 to the contents in the Fairhope condo, while the husband assigned a value of $57,000 to those contents. See, e.g., Weeks, 27 So.3d at 529 (discussing the ore tenus rule). We note that the parties did not present identical values of their "retirement accounts, investment accounts, annuities, IRAs, and other accounts"; however, because those accounts were divided on a percentage basis, the difference in the values assigned would not result in a large change in the overall percentage of property awarded to the wife.

Even considering the minor difference in valuations, we agree that the division of property is far from equal. We note, however, that " 'a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case.' " Walker, 216 So.3d at 1271 (quoting Turnbo v. Turnbo, 938 So.2d 425, 430 (Ala. Civ. App. 2006) ). " ' "A property division that favors one party over another does not necessarily indicate an abuse of discretion." Fell v. Fell, 869 So.2d 486, 496 (Ala. Civ. App. 2003).' " Id.

The wife cites Adams v Adams, 778 So.2d 825 (Ala. Civ. App. 2000), a case in which this court determined that the property division was inequitable although the trial court had been concerned that the wife would squander the parties' assets. In Adams, the wife was awarded the parties' "marital home and an adjoining lot, together valued at between $50,000 and $56,000," "all the furnishings of the home, valued at $2,000," and "two vehicles valued at $3,000 each." 778 So.2d at 826. "[T]he husband was awarded two vehicles valued at $3,500 and $3,000" and "stocks worth $17,800 and the investment account totaling $367,542. The husband was ordered to pay the wife periodic alimony of $600 per month for three years and then $750 per month thereafter." Id. He was also "ordered to pay the $3,000 mortgage indebtedness on the marital home, at a monthly payment of $155." Id. This court noted that the wife had no retirement or investment account of her own and concluded that the division of property resulting in only 16% of the marital property being awarded to the wife was inequitable. 778 So.2d at 827.

Unlike in Adams, where the wife was not awarded any retirement or investment accounts, in the present case the wife was awarded 35% of the parties "retirement accounts, investment accounts, annuities, IRAs, and other accounts" as well as 10% of the bank shares. She was also awarded the Fairhope condo and its contents, the Conecuh County property, a Lexus automobile, and $5,000 per month in periodic alimony. Considering the evidence indicating that almost all the marital estate had been derived from either the husband's employment or the husband's inheritance, that the wife had filed for a divorce almost immediately after the estate of the husband's father had been settled, and that the wife had unilaterally decided to divorce the husband, and the fact that the wife was awarded $5,000 in periodic alimony per month, we cannot conclude that the trial court exceeded its discretion in dividing the parties' property.

Conclusion

Based on the foregoing, we reverse the trial court's judgment to the extent that it awarded the husband a portion of the wife's $100,000 inheritance from her father. We affirm the judgment in all other respects. We remand this cause for the trial court to enter a judgment in accordance with this opinion.

The husband's motion to strike "Appendix A" to the wife's appellate brief is granted. See, e.g., Chamberlin v. Chamberlin, 184 So.3d 1016, 1023 n.1 (Ala. Civ. App. 2014). The husband's motion for an award of attorney's fees on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

Thompson, P.J., concurs in part and dissents in part, with writing.

THOMPSON, Presiding Judge, concurring in part and dissenting in part.

I concur with that part of the main opinion that reverses that part of the trial court's judgment that included in the property division amounts inherited by Ida Le Blanc Swift ("the wife") that were not used for the common benefit of the parties during the marriage.

I dissent, however, from the affirmance of the remainder of the trial court's property division. The parties were married for over 40 years and reared two children. With a brief exception, the wife did not work outside the home, and, instead, she took care of the parties' children. Given the parties' ages, the length of their marriage, and their standard of living during the marriage, see Walker v. Walker, 216 So.3d 1262, 1270-71 (Ala. Civ. App. 2016), I cannot agree with the main opinion's determination that the property division, which so heavily favors the husband, David Dauphin Swift, Sr., is equitable.

      The wife argues in her brief that the total amount in those accounts is $1,478,800, whereas the husband's exhibit indicates the total amount to be $1,186,197.


text:
    EX PARTE Marcus TAITE
    CR-15-0076
    Court of Criminal Appeals of Alabama.
    September 27, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Transferred to Sup. Ct.


text:
    EX PARTE Alvin WHITE
    CR-14-1321
    Court of Criminal Appeals of Alabama.
    September 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. granted.


text:
    Anthony TYSON v. STATE
    CR-14-0945
    Court of Criminal Appeals of Alabama.
    July 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Patricia BLACKMON v. STATE
    CR-14-0317
    Court of Criminal Appeals of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Roger Anthony DIXON v. STATE
    CR-15-0152
    Court of Criminal Appeals of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Johnny EDWARDS v. STATE
    CR-15-0335
    Court of Criminal Appeals of Alabama.
    September 1, 2017 Reh. denied September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeffery Day RIEBER v. STATE
    CR-15-0355
    Court of Criminal Appeals of Alabama.
    September 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronda DAFFIN v. STATE
    CR-15-0468
    Court of Criminal Appeals of Alabama.
    August 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Janice GREEN v. STATE
    CR-15-0531
    Court of Criminal Appeals of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied; memo of 04/21/2017 withdrawn; memo substituted; affirmed.


text:
    Jason Jermaine HALL v. STATE
    CR-15-0918
    Court of Criminal Appeals of Alabama.
    August 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Shannon Ray JOHNSON v. STATE
    CR-15-0643
    Court of Criminal Appeals of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Wendy Michelle GILBERT v. STATE
    CR-15-0894
    Court of Criminal Appeals of Alabama.
    July 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Melton CROSBY III v. STATE
    CR-15-0710
    Court of Criminal Appeals of Alabama.
    July 7, 2017 Reh. denied. July 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Burton Wheeler NEWSOME
    CR-15-1223
    Court of Criminal Appeals of Alabama.
    September 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Lisa Meshelle PERRY v. STATE
    CR-15-1051
    Court of Criminal Appeals of Alabama.
    September 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jason Dewane GREEN v. STATE
    CR-15-1247
    Court of Criminal Appeals of Alabama.
    September 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ramon Rogelio INNIS v. STATE
    CR-15-1174
    Court of Criminal Appeals of Alabama.
    September 1, 2017 Reh. denied September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    W.B.S. v. STATE
    CR-15-0956
    Court of Criminal Appeals of Alabama.
    August 4, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Andrelle Dion TILLMAN v. STATE
    CR-15-1293
    Court of Criminal Appeals of Alabama.
    September 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed in part and dismissed in part.


text:
    Timothy Dane TILLMAN v. STATE
    CR-15-1327
    Court of Criminal Appeals of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.