author: HARWOOD, Justice.

text:
    David W. ESKRIDGE v. ALLSTATE INSURANCE COMPANY et al.
    1011176.
    Supreme Court of Alabama.
    Feb. 7, 2003.
    J. Gusty Yearout of Yearout & Traylor, P.C., Birmingham, for appellant.
    J. Russell Campbell and Yvonne Norris Beshany of Balch & Bingham, L.L.P., Birmingham, for appellee Allstate Insurance Company.
   HARWOOD, Justice.

This is the second appeal in this case. The first appeal, Allstate Insurance Co. v. Eskridge, 823 So.2d 1254 (Ala.2001), was brought by Allstate Insurance Company (hereinafter “Allstate”) from a judgment entered on a jury verdict awarding David W. Eskridge (hereinafter “Eskridge”) compensatory damages on his claim of fraud. Eskridge’s claim of breach of contract had also been submitted to the jury, but the jury returned a verdict in favor of Allstate as to that claim. Although Allstate appealed the judgment on the fraud claim, Eskridge did not cross-appeal as to the adverse judgment on the breach-of-contract claim. This Court issued an opinion in the case on September 14, 2001. That opinion (in which five Justices concurred, one of whom, Justice Johnstone, wrote specially to “add some supplemental analysis of [his] own,” 823 So.2d at 1265) determined that the trial court had “erred in denying Allstate’s motion for a judgment as a matter of law as to [the] fraud claim,” and declared that “[accordingly, the judgment of the trial court must be reversed, and the cause remanded for the entry of a judgment consistent with this opinion.” 823 So.2d at 1265. On January 15, 2002, Eskridge served on Allstate’s attorneys via United States mail his “Motion for Leave to Amend Complaint.” That motion was filed with the circuit court clerk on January 28, 2002. On that same day, Allstate filed its “Motion to Strike Plaintiffs Motion for Leave to Amend Complaint” and its “Motion for an Order of Entry of Judgment.” On January 31, 2002, the trial judge, in response to this Court’s opinion and mandate, entered an order stating: “Pursuant to mandate of the Supreme Court of Alabama ... judgment is due to be and is hereby rendered in favor of defendant Allstate Insurance Company. Costs taxed to party incurring same.” Eskridge has timely appealed from that judgment.

Eskridge’s motion for leave to amend explained that he sought “to amend his complaint to add a claim for breach of contract for termination of the plaintiffs employment, and for intentional infliction of emotional distress,” asserting that subsequent to the trial of the case, Allstate had “further breached its contract with the plaintiff by terminating his employment in violation of his written contract and without just cause.” The proffered amendment to the complaint, attached as an exhibit to the motion, adopted and incorporated by reference “any and all averments contained in the original Complaint,” which complaint comprised 68 separately numbered paragraphs. The amended complaint named as defendants not only Allstate, but also three of its employees, who were eliminated from the case before the original jury verdict and judgment, either by the entry of a summary judgment or by voluntary dismissal by Eskridge. The proposed amended complaint began with paragraph number 69 and asserted claims alleging breach of contract and intentional infliction of emotional distress. Paragraph 70 of the proposed amended complaint stated that “[t]he Defendants have in violation of the written contract existing between the Plaintiff and the Defendant ... terminated the Plaintiffs contract of employment. ...”

On appeal, Eskridge does not challenge the propriety of disallowing the proposed amendment insofar as it asserts a claim of intentional infliction of emotional distress, but contests the trial court’s judgment only as it relates to the breach-of-contract claim.

Eskridge argues that “[w]hen this Court reversed the trial court’s judgment as to Eskridge’s claim for fraud, the effect of the reversal was to annul the judgment of the trial court in its entirety,” relying principally on Christian Benevolent Burial Ass’n, Inc. v. Thornton, 241 Ala. 13, 1 So.2d 8 (Ala.1941) (“Christian II”). Before the first appeal in that case, Christian Benevolent Burial Ass’n, Inc. v. Thornton, 239 Ala. 245, 194 So. 821 (1940) (“Christian I”), the complaint had consisted of three counts, but at the conclusion of the evidence at the first trial, the judge had given the “affirmative charge for the defendant” on two counts, allowing only the third count to be submitted to the jury. On appeal, this Court concluded that the affirmative charge should also have been given as to the third count, and “[f]or this error the judgment is reversed.” The judgment was reversed and the case remanded generally, without any further mandate or instructions. Following remand, the plaintiff eliminated the count as to which the Supreme Court had concluded that the affirmative charge should have been granted, and went to trial on the two counts the trial judge had eliminated by granting the affirmative charge during the first trial, despite the defendant’s argument interposed at the second trial that the doctrine of res judicata barred a retrial of those counts. In subsequently approving of the trial court’s action in allowing that procedure, this Court stated the following:

“The reversal of the judgment in this Court had the effect of annulling it in its entirety, including all rulings on the pleadings, and the case stood as though no judgment had ever been rendered. It was not res adjudicata as to any ruling embraced in it. First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848 [(1933)]; Sovereign Camp, W.O.W. v. Moore, 235 Ala. 117, 177 So. 642 [(1937)]; Cartwright v. Hughes, 226 Ala. 464, 147 So. 399 [(1933)].”

Christian II, 241 Ala. at 15, 1 So.2d at 10.

The three cases relied on by the Court in Christian II-First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848 (1933); Sovereign Camp, W.O.W. v. Moore, 235 Ala. 117, 177 So. 642 (1937); and Cartwright v. Hughes, 226 Ala. 464, 147 So. 399 (1933)-all involved the specific procedural situation of a challenge on a second appeal to a ruling made on a demurrer before the first appeal, but which demurrer was not reasserted on the intervening trial on remand, so that no new ruling obtained as to it. In Cartwright, the Court explained that “a judgment on demurrers to pleading is a part of the final judgment rendered in the cause, and is not, as in chancery, a separate interlocutory judgment, and that, when an appeal is taken from that judgment, and it is reversed, it is ‘reversed throughout and [to be] tried anew.’ Alabama G.S.R.R. Co. v. McAlpine, 80 Ala. 73 [(1885)].” 226 Ala. at 466, 147 So. at 400. The statement from Alabama Great Southern R.R. v. McAlpine & Co., 80 Ala. 73 (1885), in turn, represented the application of a concept of “entirety of judgment,” whereby any reversal was of necessity a reversal of all aspects of the case.

In McAlpine, the owner of a mare and a mule sued the railroad, alleging that by two separate acts of negligence on the part of the railroad, the mare and the mule had been killed at different times. The plaintiff recovered damages for the loss of the mare, but failed to recover for the loss of the mule. Both he and the railroad appealed. The Supreme Court prefaced its analysis by stating this proposition: “Both issues being presented in one suit, and there being but one judgment and verdict, that judgment can not be both affirmed and reversed. If reversed on either appeal, it will be reversed throughout, and tried anew; for two judgments can not be rendered in this one suit.” 80 Ala. at 75. Of course, under our modern procedure two judgments can be rendered in one action, and, upon appellate review of an appeal and a cross-appeal brought by the opposing parties, one judgment can be affirmed and the other reversed. However, applying the rules of common-law pleading and the concepts of appellate procedure then applicable, the court in Cartwright concluded that because “the judgment overruling demurrer to the complaint” was a part of the “judgment [that] was reversed on the former appeal,” being “embraced in” it, the reversal of that judgment on the former appeal was a reversal “throughout,” thereby eliminating in the process the judgment overruling the demurrer. 226 Ala. at 465-66, 147 So. at 400. Likewise, in Sanders, a ruling on demurrers interposed to a count before a first appeal that resulted in a reversal of a judgment for the plaintiff could not form the basis of an assignment of error on a second appeal, because no new ruling had been obtained with respect to the demurrers and “[t]he effect of the reversal of the former judgment by this court was to annul it in its entirety, and set aside all rulings of the court on the pleadings embodied therein.” 227 Ala. at 315, 149 So. at 849. In Sovereign Camp, W.O.W., the trial court, before a first appeal, had sustained the plaintiffs demurrer to two of the defendants’ amended pleas. “After the reversal and remandment of the cause, no new ruling was made as to the sufficiency of these pleas_” 235 Ala. at 119, 177 So. at 643. Because the effect of the reversal of the former judgment had been to “set aside all rulings of the court on the pleadings embodied therein,” 235 Ala. at 119, 177 So. at 643, the defendant could not assert as error on a second appeal the sustaining of the demurrer to its pleas. The reversals ordered on initial appeal in Sanders and Sovereign Camp, W.O.W. were simply general reversals and remands, without any accompanying instructions to the trial court. In Cartwright, the initial reversal was accompanied with the explanation that “the case must be retried.”

In contrast to the post-reversal procedural approach countenanced by the Court in Christian II is the approach taken by this Court in the procedural environment existing after the adoption in 1973 of the Alabama Rules of Civil Procedure and the adoption in 1975 of the Alabama Rules of Appellate Procedure, in the case of Ex parte Army Aviation Center Federal Credit Union, 477 So.2d 379 (Ala.1985)(“Army Aviation II ”). In the litigation underlying that appellate decision, the plaintiffs (referred to together in the opinion as “Poston”) sued the Army Aviation Center Federal Credit Union (referred to the in opinion as “the credit union”) asserting claims of misrepresentation and/or deceit; outrageous conduct; bad-faith breach of contract; breach of contract; and breach of an oral agreement and tor-tious interference with a contractual relationship. At trial, at the close of Poston’s case, the court granted the credit union’s motion for a directed verdict as to the claims of outrageous conduct, bad faith, breach of an oral contract, and interference with contract relations. The case went to the jury on the claims of breach of contract and misrepresentation and/or deceit. The jury returned a general verdict in favor of Poston for $65,000. On the first appeal, this Court held in Army Aviation Center Federal Credit Union v. Poston, 460 So.2d 139 (Ala.1984) (“Army Aviation 7”), that there was insufficient evidence of misrepresentation and that, consequently, the trial court erred in failing to grant the credit union’s motion for a directed verdict on the claim for misrepresentation and/or deceit. On remand, the trial judge denied the credit union’s motion seeking to limit the issue on retrial to the breach-of-contract claim only. Pertinent to the present appeal by Eskridge, this Court observed and held on the second appeal:

“[The credit union] argues that the trial court should not permit litigation of the claims for outrageous conduct, bad faith breach of contract, breach of an oral agreement, or interference with contractual relations because those claims are barred by res judicata. At trial, a verdict was directed in favor of the Credit Union with regard to those issues. When the Credit Union appealed, Po-ston did not cross-appeal as to the efficacy of that directed verdict. We hold that the failure to do so operates as a bar to relitigation of those issues. In cases where an appeal is taken with respect to only a particular issue or issues, there can be no retrial after remand of issues previously tried and determined but not appealed from. Sewell Dairy Supply Co. v. Taylor, 113 Ga.App. 729, 149 S.E.2d 540 (1966); 5B C.J.S. Appeal and Error § 1989 (1958). The instant case falls under that principle.”

477 So.2d at 380-81.

In Insurance Co. of North America v. Citizensbank of Thomasville, 491 So.2d 880 (Ala.1986), a jury had returned sizable awards against Insurance Company of North America (“INA”) on a contract claim and a bad-faith claim. INA paid the judgment against it on the breach-of-contract claim but appealed from the judgment on the bad-faith claim. On appeal, this Court held that “the trial judge erred in submitting the bad faith count to the jury, and the defendant’s motion for a directed verdict on this count should have been granted.” 491 So.2d at 885. The holding was summarized in these terms:

“For the foregoing reasons, we conclude that the trial judge erred in submitting the bad faith count to the jury, and the defendant’s motion for a directed verdict on this count should have been granted. We, therefore, reverse and remand.”

491 So.2d at 885.

Following remand, the trial court allowed the plaintiff to amend its complaint to reconfigure the contract claims and to proceed further on a bad-faith cause of action. On the resulting second appeal, this Court concluded in Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988), with respect to the issue whether the decision on the first appeal had “constituted a final adjudication in regard to the issue of INA’s liability for bad faith refusal to pay Citizensbank’s insurance claim,” 523 So.2d at 1067, that “our precedent supports the conclusion that a decision by this court to reverse and remand on the ground that the trial court should have directed a verdict represents a final adjudication and precludes a reopening of the pleadings.” Id.

In Karagan v. Bryant, 537 So.2d 10 (Ala.1988), this Court, discussing Bahakel v. City of Birmingham, 457 So.2d 348 (Ala.1984), and Hammond v. Realty Leasing, Inc., 351 So.2d 893 (Ala.1977), declared:

“In these cases, we held that although Rule 15, [Ala.] R.Civ.P., must be liberally construed and amendments freely allowed, Rule 15 does not allow a party to amend his or her original complaint after an unsuccessful appeal, unless the mandate of the appellate court expressly permits such amendment, the rationale being that ‘ “[t]o hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation.” ’ Hammond [v. Realty Leasing, Inc.], 351 So.2d [893] at 895 [(Ala.1977)], quoting 6 Wright & Miller, Federal Practice & Procedure § 1489 at 445.”

In Alfa Mutual Insurance Co. v. Smith, 540 So.2d 691 (Ala.1988), a case brought by Carl Smith against Alfa Mutual Insurance Company (“Alfa”) went to the jury only on a claim of breach of contract, and the jury awarded Smith $10,000 as damages. On appeal by Alfa, the Court of Civil Appeals reversed and remanded, based upon the trial court’s erroneous jury instruction that damages for mental anguish could be awarded in an action for breach of an insurance contract. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Smith, 406 So.2d 913 (Ala.Civ.App.1981). On remand, Smith filed an amended complaint, adding a “bad-faith” claim to his claim alleging breach of contract. The tort of bad faith had not been recognized when Smith filed his original complaint, and was judicially established only after the first trial of his case. On retrial, both the bad-faith and the breach-of-contract counts were submitted to the jury, resulting in a verdict in Smith’s favor for $75,000. On appeal after the retrial, this Court addressed, as a “threshold” question, the issue “whether Smith’s amendment adding the bad faith claim after the original judgment was reversed and the case remanded by the Court of Civil Appeals was proper.” 540 So.2d at 693. The Court concluded that “[t]he Court of Civil Appeals’ reversal and remand in the previous appeal of the present case was not a final judgment because of the ground upon which it was reversed, that is, the trial court’s erroneous instruction [relating to damages].” 540 So.2d at 693. Because of that procedural posture, “Smith was entitled to a new trial on his breach of contract claim on remand.” 540 So.2d at 693. Taking into further consideration the fact that “the tort of bad faith had not been recognized when Smith filed his original complaint,” the Court determined that Smith’s bad-faith claim was a “new issue” which had “ ‘not yet [been] finally adjudicated.’ ” 540 So.2d at 693. Accordingly, the Court held that the amendment adding the bad-faith claim was proper.

Blake v. American Family Care, Inc., 599 So.2d 5 (Ala.1992) (“AFC 77”), represented a second appeal of a dispute previously addressed by the Court in American Family Care, Inc. v. Irwin, 571 So.2d 1053 (Ala.1990) (“AFC I”). The Court in AFC I affirmed the imposition of a constructive trust on certain shares in AFC, but modified the trial court’s order to permit the constructive trust to be dissolved upon the repayment of certain sums, including the amount AFC had had to pay “as the result of Blake’s breach of fiduciary duties owed to AFC....” 571 So.2d at 1061. Blake thereafter petitioned the trial court for determination of the amount required to be paid to dissolve the trust and, subsequently in AFC II, did not contest the amount determined by the trial court to be due. However, the trial court went further and decided that additional actions by Blake, other than those specifically at issue in AFC I, constituted additional breaches of fiduciary duty. In the judgment reviewed by the Court in AFC I, the trial court had made only one finding concerning any alleged breach of fiduciary duty and had summarily denied all other claims. That denial was not contested by the appellee in AFC I. In AFC II, this Court concluded that the order at issue in AFC I represented a final judgment, and the trial court had specifically denied any relief on any issue related to breach-of-fiduciary-duty claims other than the single one addressed by the trial court. Based on that fact, the Court held that

“the failure to appeal or cross-appeal the denial of relief on any other claims related to other alleged breaches operates as a bar to relitigation of those claims. In cases where an appeal is taken with respect to a particular issue or issues, there cannot be a retrial of other issues previously tried and determined but not appealed from. Ex parte Army Aviation Federal Credit Union, 477 So.2d 379 (Ala.1985).”

599 So.2d at 7.

Relying principally on Alfa Mutual Insurance Co. v. Smith, supra, Eskridge argues alternatively that the breach-of-contract claim he seeks to assert by amendment is based on new facts — specific acts taken by Allstate after the trial of this case — that stem from the pattern of conduct alleged in the original complaint. He explains that he is not seeking new grounds of recovery; instead he is alleging breach of contract, a ground of recovery asserted in the original complaint. In this regard, he argues that Allstate’s new, wrongful acts constitute a continuation, an exacerbation, and a culmination of the wrongdoing alleged in the original complaint. Eskridge attempts to explain and bolster this argument by stating in his brief to this Court that “nearly one year after the trial, Allstate terminated Eskridge as per the termination letter dated April 3, 2000,” attaching as an exhibit to his brief a letter of that date. Unfortunately, neither that letter nor any specific facts concerning any posttrial termination are a part of the record before us. Rather, we have in the record only the statement in Esk-ridge’s “Motion for Leave to Amend Complaint” that “since the trial of the case ... Allstate has further breached its contract with the plaintiff by terminating his employment,” and the averment in the proposed amended complaint that “the defendants” had “terminated the plaintiffs contract of employment.” Because the proposed amended complaint “adopts and incorporates by reference, as if fully set forth herein, any and all aver-ments contained in the original Complaint,” the averment of the original complaint, stated in paragraph 44 thereof, that “[o]n several occasions Eskridge ... has been told he was terminated from his employment with Allstate,” carries forward, and the trial court would be entitled to view Eskridge’s argument about a “new” event in light of that previous, and now expressly reiterated, averment. Accordingly, we have no occasion to address on this appeal whether there might be circumstances whereby a plaintiff, following a reversal on the merits on appeal and a remand of the case with directions, might be entitled to assert some sort of new claim predicated on postjudgment events. We confine ourselves to the particular circumstances presented by this appeal, and conclude that, under the teachings of Army Aviation II, Ex parte Insurance Co. of North America, Kara-gan, and Blake, supra, and in light of our mandate attending the original opinion in this case, that “the judgment of the trial court must be reversed, and the cause remanded for the entry of a judgment consistent with this opinion,” 823 So.2d at 1265, the trial judge did not err in interpreting that mandate so as to enter a judgment on remand in favor of Allstate. As has been stated, “the trial court’s duty is to comply with the mandate ‘according to its true intent and meaning,’ as determined by the directions given by the reviewing court.” Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989).

To the extent that Christian II is inconsistent with this opinion, it is hereby overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte GENERAL NUTRITION CORPORATION and Ex parte Phoenix Laboratories, Inc. and Ex parte Cytodyne Technologies, Inc. (In re Richard Gregory, as administrator of the estate of Shannon Gregory, deceased v. Cytodyne Technologies, Inc., et al.)
    1011760, 1011861, and 1011882.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      H.E. Nix, Jr., and S. Anthony Higgins of Nix, Holtsford, Gilliland, Higgins & Hit-son, P.C., Montgomery, for petitioner General Nutrition Corporation.
    Beverly P. Baker and James A. Patton, Jr., of Haskell, Slaughter, Young & Rediker, L.L.C., Birmingham; and Stephen R. Stern of Hoffinger, Stern & Ross, L.L.P., New York City, New York, for petitioner Phoenix Laboratories, Inc.
    Robert M. Girardeau and J. Allen Syd-nor, Jr., of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for petitioner Cyto-dyne Technologies, Inc.
    David F. Mieeli, Jere L. Beasley, and Andy D. Birchfield, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and P. Richard Hartley of Hartley & Hickman, Greenville, for respondent.
   HARWOOD, Justice.

The petitioners in this ease, General Nutrition Corporation (“GNC”), Phoenix Laboratories, Inc. (“Phoenix”), and Cytodyne Technologies, Inc. (“Cytodyne”), are defendants in a wrongful-death action filed in the Circuit Court of Butler County, Alabama. The action was filed on November 29, 2001, by Richard Gregory, individually and as the administrator of the estate of his deceased wife, Shannon Gregory, pursuant to the wrongful-death statute of the state of Virginia. The petitioners responded to Gregory’s action by filing a joint motion to dismiss, based upon improper venue, arguing that the doctrine of forum non conveniens, codified in Ala.Code 1975, § 6-5-430, required that the trial court dismiss the case so that it could be refiled in Virginia. In the joint motion the petitioners consented to the jurisdiction of the Circuit Court in Newport News, Virginia, and committed to waive assertion of a statute-of-limitations defense if Gregory refiled the action in Virginia within 60 days of the trial court’s entry of an order of dismissal. On May 9, 2002, the trial court held a hearing on the motion, and on May 31, 2002, denied it. The trial court’s May 31 order stated, in pertinent part:

“This matter came to be heard on May 9, 2002 on the Motion to Dismiss pursuant to the doctrine of forum non conve-niens filed by the Defendants. Although the Court might guess or surmise as to certain factual matters and how they may play out at a later trial, it is unable to say based on the evidence before it that the Defendants have met their burden that would require this Court to dismiss the proceeding for subsequent refiling in the state of Virginia, or elsewhere. Additionally, now that the Plaintiff and his children are all residents of Alabama as a result of the incident causing this lawsuit, it would seem particularly harsh to treat the travel and attendance to a foreign jurisdiction by the non-party family members different than those witnesses that the Court can only speculate about at this point.”

The petitioners filed the instant petitions for a writ of mandamus directing the trial court to vacate its order denying their motion to dismiss the wrongful-death action based on the doctrine of forum non conveniens and further directing the trial court to “dismiss this case for transfer to Newport News, Virginia.”

The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is by way of a petition for a writ of mandamus. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000).

“Mandamus is a drastic and extraordinary remedy and is appropriate only when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court.”

Ex parte State ex rel. C.M., 828 So.2d 291, 293 (Ala.2002). “Whether to dismiss an action based on the doctrine of forum non conveniens is within the sound discretion of the trial court, and its ruling on that issue will not be reversed absent an abuse of that discretion.” Ex parte United Brotherhood of Carpenters, 688 So.2d 246, 249 (Ala.1997). Further, this Court’s review is limited to only those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998); Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).

The record shows that Shannon died on April 4, 2001, while exercising at a high school running track in Newport News, Virginia. The autopsy report stated, among other things, that “[h]er death is consistent with a sudden cardiac death.” Before her death, Shannon had been taking the dietary supplement Xenadrine RFA-1, which contains ephedra. Xenad-rine KFA-1 is manufactured by both Cyto-dyne and Phoenix and was allegedly purchased by Shannon at a GNC retail store located in Newport News. After Shannon’s death, Richard received a military hardship transfer from the United States Air Force, his employer, and moved his family back to Greenville, Alabama, in Butler County, where both Richard and Shannon were reared. GNC, Phoenix, and Cyto-dyne are foreign corporations with their principal places of business located in Pennsylvania, New York, and New Jersey, respectively.

The petitioners argue that this action should be dismissed under the provisions of Ala.Code 1975, § 6-5-430, which provides:

“Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

As this Court stated in Ex parte Preston Hood Chevrolet, Inc., 638 So.2d 842 (Ala.1994):

“The doctrine of forum non conve-niens requires the court to determine whether to accept or decline jurisdiction of an action based upon a claim arising outside the state. Initially, the party seeking dismissal must show that the claim arose outside the state of Alabama. It is undisputed that [the plaintiffs] claim arose outside Alabama. Next, the party seeking dismissal must show that an alternative forum exists. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
“It is clear that whether to dismiss an action on the ground of forum non con-veniens is within the sound discretion of the trial court and that its ruling on that question will not be reversed absent an abuse of discretion. Ex parte Southern Ry., 556 So.2d 1082 (Ala.1989). Section 6-5-430 sets out a list of several factors for the court to use in determining whether to apply the doctrine of forum non conveniens: ‘the location where the acts giving rise to the action occurred’; ‘the convenience of the parties and witnesses’; and the ‘interests of justice.’ In addition, the court should consider the location of the evidence and any other relevant matter in order to assess the degree of actual difficulty and hardship that will result to the defendant in litigating the case in the forum chosen by the plaintiff. Ex parte Southern Ry., 556 So.2d at 1086.
“The court will weigh the relative advantages and burdens associated with litigating in the plaintiffs choice of forum. Nevertheless, ‘ “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Ex parte Auto-Owners Ins. Co., 548 So.2d 1029, 1032 (Ala.1989), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).”

638 So.2d at 845 (emphasis added). The petitioners assert that they have met the threshold requirements in § 6-5-430 by showing (1) that the claim arose outside Alabama and (2) that an alternative forum exists. In addition, they argue that the convenience of the parties and witnesses, as well as the interests of justice, require the dismissal of the case under the doctrine of forum non conveniens because Shannon’s death occurred in Newport News, Virginia, and most of the evidentia-ry material and witnesses, except for Shannon’s family, are located in Newport News. We now consider whether the trial court abused its discretion by refusing to dismiss the case under Alabama’s doctrine of forum non conveniens.

I. Location of the Acts

Although the petitioners argue that many, if not all, of the acts giving rise to the action occurred in Newport News, Virginia, “that fact alone does not warrant a dismissal based on § 6-5-430.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). Moreover, Gregory contends that several acts relevant to Shannon’s death occurred outside Virginia. Before the trial court, in the May 9, 2002, hearing, Gregory’s counsel made the following argument:

“The other point that Mr. [Anthony] Higgins [counsel for Cytodyne] made in his argument was that the events that underline this claim all occurred in Virginia[;] I beg to differ with them in that there are events that occurred in New Jersey, there are events that occurred in — well, primarily in New Jersey we are presuming, I haven’t been able to do any discovery or take any depositions of Cytodyne’s folks, but a number in the development of this product, the production of this product and the marketing of this product, those are all going to be areas that have to be [sic] testimony provided in this case and those are witnesses who are going to come from places other than Virginia, New York, New Jersey, Pennsylvania and among other places.”

II. Convenience of the Parties and Witnesses

The petitioners argue that this factor is important because, they say, the majority, if not all, of the records and documents necessary in this case-are located outside Alabama. However, “ ‘[a] party who claims that the location of documents is a consideration in a forum non conve-niens dispute must make a showing on the factors such as volume, necessity, and inconvenience that would support such a claim.’ ” Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999)(quoting Ex parte Wiginton, 743 So.2d 1071, 1076 (Ala.1999)). The petitioners offered no evidence to the trial court regarding these factors. In the absence of evidence that would support an inference contrary to the trial court’s judgment, this Court has no basis for second-guessing the trial court’s exercise of its discretion. Thus, the mere assertion, without supporting evidence, that the necessary documents are located outside Alabama offers no basis for granting the petitions.

Regarding the inconvenience of the witnesses, this Court has held that “a defendant cannot assert the inconvenience of its witnesses without making a detailed statement specifying the key witnesses and providing general statements of the subject matter of their testimony.” Ex parte Preston Hood Chevrolet, 638 So.2d at 845. In their motion to dismiss, the petitioners stated:

“... First, the ... decedent was a resident of Virginia. Moreover, all of the vital fact witnesses reside in Virginia, including as previously stated all emergency rescue, fire and law enforcement personnel who responded to the emergency. Moreover, all medical providers and the medical examiner who performed any autopsy on the ... decedent are located in Virginia. This testimony concerning the cause of death will be among the most important evidence on causation and damages in this case.
“The [petitioners] emphasize that causation will be a key issue in this case. Not only are all of the key fact witnesses and medical personnel residents of Virginia, the [petitioners] will seek to learn as much background information as possible on the life of the ... decedent. The [petitioners] may elect to elicit testimony from friends, co-workers, or other individuals with knowledge of the life and lifestyle of the ... decedent in the time period leading up to her death. Upon information and belief, most, if not all, of these witnesses are residents of the State of Virginia. It may also be necessary to elicit testimony regarding the ... decedent’s knowledge of the product, her purchase of the product and her habit regarding use of the product in the time frame leading to her death. Also relevant are issues regarding any additional relevant lifestyle choices as well as any medical treatment she had received in the time period leading up to her death. Again, the necessary witnesses to develop this type of evidence are all likely residents of the State of Virginia.
“While the sheer number of witnesses who would be inconvenienced if this case remains in Butler County are staggering, the [petitioners] are required to show the trial court the necessity and value of the individual witnesses’ testimony. Ex parte Wiginton, 743 So.2d 1071 (Ala.1999). The [petitioners] have clearly met and exceeded this burden. Because it is anticipated that [Gregory] will present testimony regarding the decedent’s cause of death, the factual circumstances of decedent’s death, the physical conditions and alleged pain and suffering at or about the time of her death, all of the immediate after-the-fact witnesses will have very important, and possibly conflicting, testimony concerning causation and damages that must be heard in person by a jury in order for the [petitioners] to receive a fair and just trial.”

(Emphasis in original.)

GNC, in its “Submission of Additional Authority in Support of Motion to Dismiss Pursuant to the Doctrine of Forum Non Conveniens,” stated, in relevant part:

“1. In Interrogatory No. 1, GNC requested [Gregory] to identify ‘all physicians or healthcare providers who were seen by Shannon Gregory in the 15 years preceding her death.’ Of the eight providers identified, five are located in the Newport News, Virginia, area.
“4. In Interrogatory No. 5, GNC requested [Gregory] to ‘state the name, address and telephone number of the employer and/or employers of Shannon Gregory in the 10 years preceding her death.’ Of the three employers listed in the response, two are located in Newport News, Virginia, while the third was at Langley Air Force Base in Virginia.
“7. Importantly, [Gregory] has produced documents related to the autopsy of Shannon Gregory. These documents are included in the documents identified as Exhibit A attached to this pleading. [Exhibit A is not attached to this opinion.] Various witnesses are identified in this report, including Leah L. Bush, M.D., the pathologist who participated in the autopsy, and P. Arthur Hoyt, Jr., M.D., the medical examiner/investigator who authorized and possibly participated in the autopsy. Alfred Ward is also identified in the autopsy as a person who was present. The autopsy took place on April 5, 2001, at 11:00 a.m. The autopsy took place at the Department of Health, Office of the Chief Medical Examiner, 830 South Hampton Avenue, Suite 100, Norfolk, Virginia 23510. Each of these witnesses, as well as other individuals not specifically noted in the report, are crucial in this case and will have testimony which bears significantly on the issues of liability.
“8. In addition to the witnesses and key issues related to the autopsy report, there are additional issues related to the toxicology tests performed on the blood of Shannon Gregory which further support transferring this case to Virginia. While the autopsy report indicates that some of the post-mortem toxicology testing was performed in Virginia, additional testing was performed by National Medical Services, a toxicological testing facility located in Pennsylvania. While this additional testing was not performed in Virginia, witnesses with respect to the drawing of the blood sample, the handling of the blood sample, and other issues related to the chain of custody of the sample ultimately tested in Pennsylvania will include various agents and employees of the Chief Medical Examiner’s office in Norfolk, Virginia. While these individuals are not identified in the documents received to date, undoubtedly additional witnesses in the State of Virginia participated in the drawing and handling of these samples prior to their receipt by National Medical Services in Pennsylvania.
“... The unbiased factual witnesses who were at the scene, and who treated and analyzed the fatal injuries to the decedent are located in Virginia. The jury in this case has the right to hear the live testimony from these witnesses, and to judge each witnesses’ credibility and demeanor. The expert witnesses for each party must rely on the testimony of these on-scene witnesses, the witnesses who have firsthand knowledge of the events at issue in this complex wrongful death action. These experts will appear at trial regardless of the location. However, the independent witnesses, whose testimony will serve as the foundation of the expert opinions, will only appear if this case is transferred to where the death occurred, and where the witnesses live and work. This information about the incident and the injuries will be determinative on both the liability and damage issues in this case.”

(Emphasis in original.) During the May 9, 2002, hearing, counsel for GNC stated:

“... I think the three [petitioners] were all corporate defendants located in different states, [Gregory is] here in Alabama and I think what’s important, not so much the convenience of the parties, I think that that’s going to be about the same no matter where the case is. It’s really the convenience of the witnesses to the case[,] which all the witnesses that have any knowledge of what actually happened in this case are in the state of Virginia. And obviously while we can go [to Virginia] and depose and we can take videotapes[,] we can do discovery up there but when the rubber meets the road we have to come down here and try this case; we don’t have subpoena power over any of these people and you’re going to have a hodgepodge of deposition testimony and videotapes and things that bear on the key events in the case, particularly the cause of death that cannot be presented we think adequately here in Alabama, so we think that that’s a big factor in this case, the convenience to the witnesses.
“Judge, on behalf of the [petitioners] I don’t think other than the materials I’ve supplemented with today I can’t specifically identify all those [witnesses] right now until I do some initial discovery but I don’t know that they would dispute that these people are there and they exist, although they are unnamed at this time.
“One last point if I may, Your Honor, seems like we — we can do discovery but basically what it’s going to boil down to, [Gregory] and [his and Shannon’s] families are here and our folks, the [petitioners], are in Pennsylvania or New Jersey, the facts witnesses, people who lived around her, worked with her, treated her, tried to resuscitate her are all going to be in Virginia no matter how much discovery we do.”

Regarding the inconvenience-of-the-witnesses argument, Gregory argues in his brief to this Court:

“[The petitioners’] statements that all vital fact witnesses reside in Virginia are simply incorrect, and the same was pointed out to the trial court. The only eyewitnesses to the critical events underlying this action — the purchase of, the use of and Shannon Gregory’s death as a result of the use of Xenadrine RFA-1 — reside in Alabama — Mr. Gregory and his three minor children. Again, while [the petitioners] attempt to portray the emergency medical personnel involved in the resuscitative efforts performed upon Shannon Gregory as critically necessary to the defense, the only eyewitnesses to the use of Xenad-rine RFA-1 remain the immediate family members, all of whom currently reside in Butler County, Alabama.”

In the “Plaintiffs Response to Defendants’ Motion to Dismiss Pursuant to Forum Non Conveniens,” Gregory states:

“First, ... there are limited witnesses to the events giving rise to this action. In fact, aside from the three (8) Gregory children, all of whom are residents of Alabama, [Gregory] is aware of only one other potential eyewitness. [Gregory] has attempted to locate and identify this individual, but has not yet been successful.
“While [the petitioners] allege what [Gregory] may attempt to elicit and what the likely states of residents of particular witnesses may be, [Gregory] will show that Shannon Gregory’s former treating physicians are located in Alabama, California and England, as well as Virginia, due to [Gregory’s] moves during his military career. Notwithstanding the fact that there indeed may be witnesses from the state of Virginia that will be called to testify in this matter on behalf of [Gregory], when considering a motion pursuant to Alabama Code § 6-5-430, the court must consider the convenience of all parties and witnesses. Keelean v. Central Bank of the South, 544 So.2d 158, 158 (Ala.1989). As a result of the death of Shannon Gregory, Plaintiff Richard Gregory returned to Alabama under a military hardship transfer with the United States Air Force, [Gregory’s] employer. [Gregory] and his late wife were raised in Green-ville, Butler County, Alabama, and many witnesses familiar with Shannon Gregory remain in Butler County. [ (Emphasis in original.)]
“Likewise, [the petitioners] are foreign corporations that do business in both Alabama and Virginia. It is anticipated that [Gregory] will need to depose and call as witnesses both current and former employees of each [petitioner]. Additionally, based on [Gregory’s] investigation thus far, even critical portions of the post-death investigation were rendered by non-party’s outside of the jurisdiction of the Virginia court. (Based upon [Gregory’s] investigations thus far, the medical examiner’s toxicology services are contracted through a service provider in the state of Pennsylvania.)
“This is, undoubtedly, an action involving evidence that will come from a number of states: Alabama, Virginia, New Jersey, New York and Pennsylvania for certain, and perhaps others. Thus there will be a certain amount of inconvenience visited upon each party, but not to the point of compelling parties to litigate in Virginia out of convenience. The overwhelming volume of records that will be produced during this litigation will come from [the petitioners’] home states, we presume. The limited medical records of Shannon Gregory will pale in comparison to the anticipated discovery production [Gregory] will seek from each [petitioner].”

During the May 9, 2002, hearing, Gregory’s counsel stated:

“Under Virginia’s wrongful death statute we are allowed to try this case just as though Mrs. Gregory had survived. So therefore, we would be able to put on before and after witnesses to talk about how death has affected the family and its impact. Therefore, there are going to be a number of witnesses. [Gregory’s] family is from Greenville. Mrs. Gregory’s family is from Greenville. They have, by an estimation of my client, over 40 relatives that could potentially testify here in Butler County. The convenience the Court has to look to is going to be obvious.
“... There will be the identification of various prior treating physicians from California, Alabama, England. So it’s not just the state of Virginia that is going to have critical witnesses to this case. We mentioned in our reply that— it’s undisputed that there are going to be witnesses from many different states and perhaps different countries who could be called to testify.
“Additionally we are going to be deposing a number of employees, former employees of the [petitioners]. If they are current employees we will of course be able to ask that they attend the trial but if they’re former employees we will have no subpoena power over individuals in New York, New Jersey or Pennsylvania where the [petitioners] reside. Whether [the case is tried] in Virginia or Alabama.”

In weighing the inconvenience of the witnesses, this Court stated in BE & K, Inc. v. United Brotherhood of Carpenters, 688 So.2d 246, 250 (Ala.1997):

“The United States Supreme Court stated in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 265-66, 70 L.Ed.2d 419 (1981), that ‘[w]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient.’ This Court has also recognized that it makes little sense to move a case from Alabama to another forum in order to accommodate out-of-state witnesses when to do so would necessarily inconvenience those witnesses who reside within Alabama. See Keelean v. Central Bank of the South, 544 So.2d 153, 158 (Ala.1989) (‘It has not been shown how the parties and witnesses will be inconvenienced in coming to Alabama to litigate this matter, any more than the plaintiffs would be inconvenienced in having to go to Florida’). This Court in Ex parte Auto-Owners Ins. Co., 548 So.2d 1029, 1032 (Ala.1989), quoting the United States Supreme Court’s first authoritative statement on the doctrine of forum non conveniens in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), noted that ‘unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.’ This Court also emphasized in Ex parte Auto-Owners that ‘[t]he prevailing question of whether a case should be entertained or dismissed depends largely upon the facts of the particular case and is in the sound discretion of the trial judge.’ 548 So.2d at 1032, quoting Restatement (Second) of Conflict of Laws § 84 at 251 (1971).”

Under the facts of this case, this Court is unable to conclude that the inconvenience posed to the petitioners’ witnesses is so great that the convenience of the witnesses requires that this action be dismissed.

III. The Interests of Justice

The petitioners next argue that the interests of justice require a dismissal of this case. First, they argue that because the parties have agreed that Virginia law will be applied in this case, a Virginia court would be a more appropriate forum. Second, they argue that Gregory abused the venue-selection process when he moved to Butler County after the death of his wife and subsequently filed an action against them in that forum. Third, they argue that they would be unable to subpoena potential witnesses to testify in Butler County.

First, although some aspects of Virginia law may govern this case, the mere fact that the law of a foreign state is controlling does not warrant a dismissal. See Ex parte Preston Hood Chevrolet, 638 So.2d at 845 (reaffirming the holding in Ex parte Allied-Signal, Inc., 561 So.2d 1062, 1064-65 (Ala.1990), that the “mere fact that another state’s law is controlling does not warrant a dismissal”). Second, we cannot agree with the petitioners’ contention that Gregory was attempting to abuse the venue-selection process when he moved to Butler County; there was no evidence before the trial court supporting this contention. The evidence shows that after the death of his wife, Gregory moved his family back to Greenville, Alabama, where he and his wife had been reared. Without more, we cannot conclude that this behavior was an abuse of the venue-selection process. Finally, regarding the unavailability of subpoenas for witnesses outside Alabama, Rule 28, Ala.R.Civ.P., and Va.Code Ann. § 8.01-411 (Michie 2000), could combine to provide for discovery in Virginia. See generally America Online, Inc. v. Anonymous Publicly Traded Company, 261 Va. 350, 542 S.E.2d 377 (2001)(“Under the [Uniform Foreign Depositions Act] reciprocity is required, and the ‘privilege extended to persons in other states by § 8.01-411 shall only apply to those states which extended the same privilege to persons in this Commonwealth.’ ”). Regarding the availability of discovery, counsel for GNC, during the May 9, 2002, hearing, referencing the ability to accomplish discovery, stated: “And obviously while we can go [to Virginia] and depose and we can take videotapes[,] we can do discovery up there but when the rubber meets the road we have to come down here and try this case....” Pursuant to Va. Code Ann. § 8.01-411, the parties could compel the attendance at deposition of any Virginia witness who might decline to attend voluntarily the same as they would do were the witness sought for a trial appearance in Virginia. Thus, the petitioners have not shown that the interests of justice mandate a dismissal of this case.

As this Court stated in Ex parte Preston Hood Chevrolet, 638 So.2d at 846, “[a]ll of the factors must be positively found in order to justify dismissal on the grounds of forum non conveniens.” (Emphasis added.) Given the circumstances of this case, we are unable to conclude that the trial court abused its discretion by denying the petitioners’ motion to dismiss under Ala.Code 1975, § 6-5-430. The petitions for the writ of mandamus are therefore denied.

PETITIONS DENIED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

STUART, J., dissents.

      . The three petitions were consolidated on August 16, 2002, for this Court’s review.

      . Ephedra is defined as "1. Any of various gymnospermous, mostly shrubby plants of the genus Ephedra, some of which are used as a source of ephedrine. 2. A stimulant, often sold as pills or tablets, derived from a plant of this genus.” American Heritage Dictionary of the English Language (4th ed., Houghton Mifflin Co.2000).

      . GNC’s "Submission of Additional Authority” was subsequently adopted by the other petitioners.


author: WOODALL, Justice.

text:
    Ex parte Marty CONNORS, as chairman of the Alabama Republican Executive Committee. (In re Steve Flowers v. Jim Bennett et al.) Marty Connors, individually and as chairman of the Alabama Republican Party v. Steve Flowers and Jim Bennett.
    1011608 and 1012111.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      Dorman Walker of Balch & Bingham, L.L.P., Montgomery; and Edward S. Allen and Allen M. Estes of Balch & Bingham, L.L.P., Birmingham, for petitioner/appellant Marty Connors, as chairman of the Alabama Republican Executive Committee.
    Algert S. Agrícola, Jr., of Crosslin, Sla-ten & O’Connor, P.C., Montgomery; Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Perry 0. Hooper, Sr., Montgomery, for respondent/appellee Steve Flowers.
   WOODALL, Justice.

These proceedings (a petition for a writ of mandamus and an appeal) were brought in this Court to challenge the judgment of the Montgomery Circuit Court, dismissing an action commenced by Steve Flowers. That action began on April 17, 2002, when Flowers filed a motion for a temporary restraining order (“TRO motion”) against Jim Bennett, in his capacity as the Secretary of State of Alabama, as well as against the probate judges and circuit clerks of the counties composing state senate district 14. (Bennett, the probate judges, and the circuit clerks are hereinafter referred to collectively as “Bennett.”)

At that time, Flowers was seeking to maintain his candidacy in the June 4, 2002, Republican Party primary election for the office of state senator for district 14, having been certified by the Republican Party as a candidate on April 10, 2002. Flowers was one of four candidates so certified. As the result of a challenge to Flowers’s qualifications for candidacy, the Alabama Republican Executive Committee (the “Committee”) had determined that Flowers did not satisfy certain residency requirements and had requested that Secretary Bennett omit Flowers’s name from the primary-election ballot. In the TRO motion, Flowers sought to enjoin Bennett “from failing to take all necessary actions that would result in the name of Petitioner Steve Flowers being placed upon the ballot for the June 4, 2002, Republican primary election for the office of state senator, district 14.” On April 28, 2002, the trial court entered an order enjoining Bennett from removing Flowers’s name from the primary ballot and scheduling a final hearing on the matter for June 26, 2002.

On April 30, 2002, Marty Connors, as chairman of the Committee, filed a “Motion to Intervene and Complaint for Temporary Restraining Order and Injunctive Relief.” In addition to an order allowing him to intervene, Connors sought injunc-tive relief directly opposite to the relief granted in the April 23 order. On May 1, 2002, the trial court granted Connor’s motion to intervene and scheduled a hearing on his requested injunctive relief on June 26, 2002.

On May 2, 2002, Connors filed a “Notice of Withdrawal and/or Dismissal,” in which he purported to “withdraw!] and/or dismiss [the] Motion to Intervene and Complaint for Temporary Restraining Order and Injunctive Relief.” On May 24, 2002, the trial court purported to deny the “Withdrawal and/or Dismissal.”

On May 28, 2002, Connors filed in this Court a petition for a writ of mandamus (case no. 1011608) directing the trial court (1) to “honor the ‘Notice of Withdrawal and/or Dismissal’ filed by Connors and [to] expressly release Connors from its jurisdiction and the ... action”; and (2) to desist from “maintaining jurisdiction over ... the issue of Steve Flowers’[s] residency and disqualification as a candidate in State Senate District 14” (the “first petition”). On May 30, 2002, this Court ordered the respondents to answer the petition and to file briefs. In that order, this Court also stayed “all proceedings and orders entered as to petitioner Connors subsequent to the filing on May 2, 2002, of petitioner Connors’s notice of withdrawal and/or dismissal.”

The Republican primary election for senate district 14 proceeded as scheduled on June 4, 2002; Flowers’s name was on the ballot. Flowers finished third.

On June 26, 2002, the Montgomery Circuit Court conducted the previously scheduled hearing. On that date, the trial court entered the following order:

“This cause came before the court on June 26, 2002. The court is of the opinion that the Petitioner, Steve Flowers, was and is a legal resident of Senate District 14 and thus, was a qualified candidate for the office of State Senator, District 14; however, the issues in this case now appear to be moot. Accordingly, this case is hereby dismissed without prejudice with each party to bear their respective costs.”

(Emphasis added.)

On July 24, 2002, Connors filed in case no. 1011608 a “Supplemental Petition for Writ of Mandamus” (the “second petition”). The second petition sought — in addition to the relief requested in the first petition — an order directing the trial court to “vacate that portion of its June 26, 2002, Order purporting to find that Steve Flowers was a legal resident of, and qualified candidate in, State Senate District 14.”

On August 7, 2002, Connors filed a notice of appeal from the June 26, 2002, judgment of dismissal (ease no. 1012111) (the “appeal”). In the appeal, Connors asked this Court to “nullify the June 26, 2002, Order of Dismissal ... to the extent that order relates to [him] or opines on [the issue of Flowers’s residency] and [to] dismiss this action.” Connors’s brief, at 21. No response has been filed to the second petition or to the appeal.

Neither the appeal nor the second petition addresses the dispositive aspect of this case, namely, the fact that the case is patently moot. The underlying dispute involved Flowers’s right to participate in the Republican primary election. He did participate, but the voters of the district he sought to represent rejected him. In other words, the question whether his name should have appeared on the ballots has been mooted by the election results.

It is well settled that the judiciary of Alabama is not empowered “ ‘to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future eases.”’ Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis omitted). “ ‘[17/ a case has become moot, or [if a] judgment would not accomplish an end recognized as sufficient in law, there is no necessity for the judgment, the court will decline to consider the merits, and [the court] will dismiss the case.’” Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997) (quoting Chisolm v. Crook, 272 Ala. 192, 194, 130 So.2d 191, 193 (1961)) (emphasis added).

When Flowers lost the primary election on June 4, 2002, the validity of his candidacy no longer presented a justiciable controversy, the question becoming at that point purely academic. Subsequently, the action was due to be dismissed, ex mero, motu if necessary, either by this Court or by the trial court. Ala. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). See Ex parte Punturo, [Ms. 1000115, February 8, 2002] — So.2d -, - (Ala.2002) (“Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.”); see also Water Works & Sewer Bd. of Birmingham v. Petitioners Alliance, 824 So.2d 705 (Ala.2001) (an action to enjoin an election was moot after the election occurred, and the dismissal of that action would not support an appeal).

The substantive reason for Connors’s objection to the June 26, 2002, judgment of dismissal is not clear. He seeks a writ or a judgment from this Court dismissing the action. But the trial court dismissed the action. For purposes of this case, the trial court’s judgment of dismissal is as effective as any judgment of dismissal from this Court.

Connors also challenges the language in the order involving Flowers’s residency. However, on the date the judgment was entered, the trial court lacked subject-matter jurisdiction to decide any substantive legal question. Moreover, we do not construe its language as any purported finding of fact, given the trial court’s recognition that “the issues in this case now appear to be moot.” We regard that language as merely harmless surplus-age, having no legal effect whatsoever.

In short, we find no reason to disturb the trial court’s judgment of dismissal. Consequently, the mandamus petition in case no. 1011608 is denied. The judgment challenged in case no. 1012111 is affirmed.

1011608 — PETITION DENIED.

1012111 — AFFIRMED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.


author: HOUSTON, Justice.

text:
    Ex parte THIRD GENERATION, INC. (In re Stephen M. Wilson v. Benjamin F. Harbin III, individually, and Third Generation, Inc.).
    1000471.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      William A. Ratliff, Jay H. Clark, and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for petitioner.
    John 0. Cates of Wilmer & Lee, P.A., Huntsville, for respondent Stephen M. Wilson.
    Laura W. Hamilton, Circuit Judge, Huntsville.
   HOUSTON, Justice.

This petition for a writ of mandamus represents the third time this case has been before us. The case was tried in 1993, and a judgment was entered on a jury verdict awarding $125,000 to Third Generation, Inc. (“TGI”), on its claims against Stephen M. Wilson, and $15,500 to Wilson on his claims against TGI and Benjamin F. Harbin III. The trial court subsequently granted a new trial, but we reversed that decision and ordered the trial court to reinstate the judgment on the jury’s verdict. Third Generation, Inc. v. Wilson, 668 So.2d 518 (Ala.1995).

We later granted TGI’s petition for a writ of mandamus and directed the trial court to set aside its November 8, 2000, order granting Wilson’s Rule 60(b)(3), Ala. R. Civ. P., motion and compelling TGI to accept worthless inventory as partial satisfaction of its judgment against Wilson. Ex parte Third Generation, Inc., 820 So.2d 89 (Ala.2001). The trial court then issued two orders dated March 8, 2002, and May 13, 2002. The March 8 order limited TGI’s postjudgment interest to approximately 19 months. However, the May 13 order, granted in response to Wilson’s April 8, 2002, Rule 60(b)(4), Ala. R. Civ. P., motion, set aside the judgment on the grounds that it was “void” and ordered a new trial.

TGI now seeks a writ of mandamus directing the trial court (1) to vacate the March 8 and May 13 orders and (2) to enter an order reinstating the judgment on the jury verdict with postjudgment interest to run from June 15, 1993 — the date of the original entry of judgment on the jury verdict — to the present. However, TGI’s request for mandamus relief from the March 8 order is unnecessary because in its May 18 order the trial court vacated the March 8 order. Therefore, we need address only the issue whether TGI is entitled to a writ of mandamus with respect to the May 13 order.

I. Analysis

To be successful, TGI must demonstrate “(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a' refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). If either the trial court’s original judgment on the jury verdict was not “void” or Wilson’s Rule 60(b)(4) motion was not filed within “a reasonable time” after the judgment became final as required of motions filed under Rule 60(b)(4), then it is apparent not only that TGI would have a clear legal right to have the May 13 order set aside, but also that the other prerequisites for mandamus relief would be met. Therefore, because we hold that the judgment entered on the jury verdict was not void, TGI is entitled to a writ of mandamus.

As discussed in our 1995 opinion, the jury awarded TGI $0 in compensatory damages and $125,000 in punitive damages on TGI’s fraudulent-suppression claim against Wilson. Third Generation, 668 So.2d at 521. If such a verdict were awarded today, the losing party would certainly be entitled to a new trial based on our decision in Life Insurance Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998). In Smith, we stated that in order to be consistent with due process, “a jury’s verdict [must] specifically award either compensatory damages or nominal damages in order for an award of punitive damages to be upheld.” 719 So.2d at 806 (citing BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). However, at the time the judgment was entered on the jury’s verdict in this case— June 15, 1993 — such an award was acceptable. See First Bank of Boaz v. Fielder, 590 So.2d 893 (Ala.1991).

In its May 13 order, the trial comb granted Wilson’s motion under Rule 60(b)(4), Ala. R. Civ. P., on the basis that the jury’s verdict was inconsistent under Smith and that it thereby violated his due-process rights. The order cites Satterfield v. Winston Industries, Inc., 553 So.2d 61, 64 (Ala.1989), in which this Court stated:

“The standard of review on appeal from the denial of relief under Rule 60(b)(4) [Ala. R. Civ. P.] is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.”

(Citing Pollard v. Etowah County Comm’n, 539 So.2d 225 (Ala.1989), and Cassioppi v. Damico, 536 So.2d 938 (Ala.1988).) (Emphasis added.) Essentially, in its May 13 order the trial court ruled that because the jury verdict violated Wilson’s substantive due-process rights as described in Smith, the judgment entered on that verdict was void and the court, therefore, had an express duty to grant the requested relief. The order relied not solely on Smith, but also on BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), which provided the foundation for our decision in Smith.

The main issue presented by this mandamus petition is whether the trial court’s grant of Wilson’s Rule 60(b)(4) motion for a new trial — filed nine years after the original judgment was entered — was proper based on the reasoning in Smith, Wilson contends (1) that his motion was filed within a reasonable time after the entry of judgment because, when he filed the motion, the case was still “pending” in that the manner of collecting the judgment was still in dispute, and (2) that the trial court had no discretion in ruling on his motion and had to grant the motion based on the due-process violation.

We agree with Wilson on only one point: a trial court’s ruling on a Rule 60(b)(4) motion involves no discretion; whether a judgment is void is purely a matter of law, and a trial court must grant a properly presented Rule 60(b)(4) motion filed in response to a void judgment. However, we do not agree that the judgment was void, a .conclusion that pretermits any discussion of whether the motion was filed within a reasonable time.

As stated above, Satterfield includes in the definition of a “void” judgment for purposes of Rule 60(b)(4) those judgments in which the trial court has “acted in a manner inconsistent with due process.” 553 So.2d at 64. However, as we recently discussed in Neal v. Neal, 856 So.2d 766 (Ala.2002), the term “due process,” in the context of providing a foundation for declaring a judgment void, refers to procedural, rather than substantive, due process:

“ ‘[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’
“Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added [in Neal]). The rule that a want of due process, so defined, voids a judgment is not redundant with the rule that a want of personal jurisdiction likewise voids a judgment, for a person already effectively made a party to litigation could, on some critical motion or for some critical proceeding within that litigation, be deprived of the ‘notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing,’ required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Frahn, supra. See Winhoven v. United States, 201 F.2d 174 (9th Cir.1952), Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949), Cassioppi [v. Damico, 536 So.2d 938 (Ala.1988)], and Seventh Wonder [v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978)].

Neal, 856 So.2d at 781-82.

Because our decision in Smith was based on substantive due-process grounds (following the lead of the United States Supreme Court’s BMW decision), the Smith rationale may not be used as a ground for declaring a judgment void under Rule 60(b)(4). Therefore, the original judgment entered on the jury’s verdict was not void, and the trial court erred in granting Wilson’s Rule 60(b)(4) motion,

II. Conclusion

For the reasons stated above, TGI is entitled to a writ of mandamus. Therefore, we issue the writ and order the trial court (1) to vacate its order of May 13, 2002, and (2) to reinstate the June 15, 1993, original judgment on the jury’s verdict with, as the trial court ordered on March 11, 1996, postjudgment interest to be awarded at the statutory rate from June 15, 1993, to the time the judgment is paid. See Raines v. Williams, 397 So.2d 86 (Ala.1981); Berry v. Druid City Hosp., 333 So.2d 796 (Ala.1976).

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . While Wilson had purportedly filed his motion pursuant to Rules 60(b)(3) and 60(b)(6), we noted that, given the substance of his motion (which was based upon alleged perjury), the motion was properly filed pursuant only to Rule 60(b)(3). See Ex parte Third Generation, Inc., 820 So.2d 89, 90 (Ala,2001).

      . Although the motion was not styled as a Rule 60(b)(4) motion, the parties agree that the trial court correctly treated Wilson’s motion for a new trial as a Rule 60(b)(4) motion.

      . Our 1995 opinion erroneously gave this date as "June 14, 1993.” Third Generation, Inc. v. Wilson, 668 So.2d at 521.

      . TGI argues that the matter of the inconsistent verdict was resolved on appeal in 1995 and is now — regardless of any later-determined due-process problems — "the law of the case.” See Third Generation, Inc. v. Wilson, 668 So.2d at 521-22. While not raised by the parties, one of the difficulties with TGI’s law-of-the-case argument is Ala.Code 1975, § 12-2-13, which appears to negate any binding effect of the "law-of-the-case” doctrine as it applies to this Court:
      “The Supreme Court, in deciding each case when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion, at that time is law, without any regard to such former ruling on the law by it; but the right of third persons, acquired on the faith of the former ruling, shall not be defeated or interfered with by or on account of any subsequent ruling.”
      However, our disposition of this petition obviates the need to address this issue.

      . The May 13 order especially relies upon the ’ United States Supreme Court’s statement that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)(quoted in BMW at 517 U.S. at 573 n. 19, 116 S.Ct. 1589).

      . In Smith, we specifically stated that the "new” rule requiring an award of some compensatory or nominal damages as a prerequisite for an award of punitive damages would "not be applied so as to require reversal and the rendering of a judgment for the defendant in any case tried before [July 17, 1998]." 719 So.2d at 807 (emphasis added).