author: JOHNSTONE, Justice.

text:
    KINGVISION PAY-PER-VIEW, LTD. v. Lester AYERS.
    1012384.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    Rehearing Denied Feb. 13, 2004.

      Michael C. Niemeyer and Julie H. Ralph of Lyons, Pipes & Cook, P.C., Mobile, for appellant.
    Rhonda P. Chambers of Taylor & Taylor, Birmingham; and Bill Thomason of Thomason & Shores, LLC, Bessemer, for appellee.
   JOHNSTONE, Justice.

The defendant Kingvision Pay-Per-View, Ltd. (“Kingvision”), appeals the denial of a Rule 60(b), Ala. R. Civ. P., motion to vacate a default judgment. We affirm.

Facts

Kingvision, a Delaware corporation headquartered in Florida and the owner of the exclusive right to broadcast the June 28, 1997, fight between Evander Holyfield and Mike Tyson, employed Coral Springs, Florida attorneys Scott Salomon and Barry Mittelberg (collectively “Salomon & Mittelberg”) to pursue claims against the plaintiff Lester Ayers and others in Alabama for the unlicenced interception of the broadcast. Salomon & Mittelberg, in turn, employed Andrew Nelms (“Nelms”), a Montgomery attorney, to act as Alabama counsel for Kingvision in the pursuit of these claims. Before filing a lawsuit against the plaintiff, Salomon & Mittelberg attempted to collect money from the plaintiff by means of telephone calls and letters.

In response to the collection efforts of Salomon & Mittelberg, the plaintiff sued Kingvision for invasion of privacy and felonious injury, in the Bessemer Division of the Jefferson County Circuit Court in November 1997. The plaintiff served Kingvision by sending the summons and complaint by certified mail to Salomon & Mittelberg rather than by serving either Kingvision itself or CT Corporation, the registered agent of Kingvision for service of process. Salomon & Mittelberg, on behalf of Kingvision, moved the circuit court for additional time to respond to the plaintiffs complaint. The motion stated that “Defendant was served with the instant action seeking damages on or about December 5, 1997.” The motion did not assert that the service of process on Kingvision was insufficient. After Salo-mon & Mittelberg obtained additional time to respond to the complaint, Nelms, on behalf of Kingvision, simultaneously filed both a Rule 12(b), Ala. R. Civ. P., motion to dismiss and an answer. The Rule 12(b) motion sought dismissal of the plaintiffs complaint on the grounds that the “complaint ... fail[ed] to state a claim ... upon which relief [could] be granted” and that the plaintiffs claims were “barred by personal jurisdiction.” The motion did not assert that the service of process on Kingvision was insufficient. Similarly, while the answer asserted that the trial court “lack[ed] ... jurisdiction,” it did not assert that the service of process on Kingvision was insufficient. After the trial court denied the motion to dismiss, Salomon & Mittelberg and Nelms filed a separate lawsuit against the plaintiff for recovery of damages for the unauthorized interception of the broadcast, in the United States District Court for the Northern District of Alabama. Subsequently, Nelms amended the answer of Kingvision in the plaintiffs state court lawsuit to assert a statute of limitations defense that Nelms had omitted from the original answer. This amended answer, like the previously filed Rule 12(b) motion and the original answer, failed to assert that the service of process on Kingvision was insufficient.

In the summer of 2000, Nelms withdrew as attorney of record for Kingvision in the plaintiffs lawsuit. Salomon & Mittelberg then employed Birmingham attorney James Ward (“Ward”) and his law firm, Corley, Moncus & Ward, P.C. (“Corley”), to defend Kingvision against the plaintiffs claims. Corley, on behalf of Kingvision, deposed the plaintiff in October 2000. In December 2000, Ward and Corley, withdrawing as attorneys of record for Kingvision, requested that the trial court send copies of the order granting their motion to withdraw and send future notices to Kingvision in care of Salomon & Mittel-berg.

The trial court called the plaintiffs lawsuit for trial on September 24, 2001. When Kingvision failed to appear, the trial court entered a default against Kingvision. In December 2001, after the plaintiff presented evidence of damages, the trial court entered a default judgment against Kingvision in the amount of $65,000.

In July 2002, Kingvision moved the trial court under Rule 60(b), Ala. R. Civ. P., to vacate the default judgment because, Kingvision said, the default judgment was void and Kingvision had a meritorious defense to the plaintiffs claims. Kingvision asserted that the default judgment was void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in personam jurisdiction over Kingvision. Kingvision did not assert that the trial court lacked in personam jurisdiction because of a lack of contacts between Kingvision and the State of Alabama or because of any reason other than the insufficiency of the service of process on Kingvision. In support of the Rule 60(b) motion, Kingvision submitted an affidavit from Donna K. Westrich. In pertinent part, Westrich testified:

“1. I am vice president of Kingvision Pay-Per-View, Ltd. (‘Kingvision’).
“2. [A June 10, 2002, letter from the plaintiffs attorney] is the first time that I was made aware that this lawsuit was pending against Kingvision, much less that a judgment against Kingvision had been taken. To my knowledge, no other employee or agent of Kingvision was ever notified about this lawsuit prior to my receipt of [the plaintiffs attorney’s] letter.
“5. Sometime after June 28, 1997, Kingvision retained the law firm Salo-mon & Mittelberg to pursue Kingvision’s claims against various individuals and/or commercial establishments that violated Kingvision’s licensing and broadcasting rights with respect to the June 28, 1997 Holyfield/Tyson fight. One .of the claims that Salomon & Mittelberg was hired to pursue was Kingvision’s claims against [the plaintiff]. The scope of Salomon & Mittelberg’s representation of Kingvision was limited to the prosecution of Kingvision’s claims against [the plaintiff] resulting from the illegal act of broadcasting the Holyfield/Tyson fight. The scope of Salomon & Mittelberg’s representation of Kingvision was further limited in that, if a lawsuit was to be filed on behalf of Kingvision’s behalf, it was to be filed in federal court under the applicable federal anti-piracy laws and regulations. It was never contemplated by Kingvision that Salomon & Mittel-berg would represent Kingvision in any lawsuit filed against Kingvision in state court.”

The plaintiff noticed the deposition of the Rule 30(b)(6), Ala. R. Civ. P., representative of Kingvision on the subject of the authority of Salomon & Mittelberg to represent Kingvision. When Kingvision refused to submit a witness for deposition voluntarily, the plaintiff moved the trial court to strike Westrich’s affidavit and to compel Kingvision to make Westrich available for deposition. In pertinent part, the motion stated:

“3. The affidavit of Ms. Westrich states her conclusions as to what Salomon & Mittelberg, a law firm that Kingvision admits that it employed, were authorized to do but she does not show the basis of her opinion or include any detailed description of Kingvision’s dealings with the law firm.”

Moving for a protective order, Kingvision asserted that it should not be compelled to submit a witness for deposition until the trial court vacated the default judgment.

The trial court heard the Rule 60(b) motion of Kingvision without ruling on either the plaintiffs motion to strike West-rich’s affidavit and to compel her deposition or the motion of Kingvision for a protective order. Nelms and Ward testified at the hearing that they were employed by Salomon & Mittelberg, that all of their communications were with Salo-mon & Mittelberg, and that they had not communicated directly with Kingvision. Nelms opined that Salomon & Mittelberg had apparent authority to act as a general agent for Kingvision in the collection of monies owed Kingvision for the unlicenced interception of the broadcast of the Holy-field-Tyson fight. Following the hearing, the trial court ordered:

“Motion for protective order of defendant Kingvision Pay-Per-View, Ltd. is denied. The Court finds that Salomon & Mittelberg P.A. had a dual role, that of attorney for Kingvision and collection agent in the State of Alabama. All actions by them in. this State pointed to the fact that they were acting as agents for Kingvision in this State. Therefore, their failure to answer the complaint and the subsequent entry of default against them on September 24, 2001, is not due to be set aside. Their motion to set aside the default is denied.”

On appeal, Kingvision again asserts that it was entitled to relief from the default judgment under Rule 60(b)(4) because, Kingvision says, the default judgment is void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in per-sonam jurisdiction over Kingvision. The plaintiff asserts that “Salomon & Mittel-berg exercised such control over Kingvision’s activities in Alabama that the court could find that Salomon & Mittelberg were Kingvision’s agents upon [whom] service of process could be made.” Appellee’s Brief, p. 18.

Issue

The dispositive issue is whether Kingvision overcame the presumption that Nelms was authorized to file the Rule 12(b) motion, answer, and amended answer that failed to assert the insufficiency of the service of process on Kingvision.

Standard of Review

In reviewing the ruling of a trial court on a Rule 60(b) motion to vacate a default judgment on the ground that the default judgment is void, this Court applies a de novo standard of review:

“ ‘ “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.” ’ ”

Russell Coal Co. v. Smith, 845 So.2d 781, 783 (Ala.2002) (quoting Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000)) (quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)).

“[T]his Court ‘will affirm the judgment appealed from if supported on any valid legal ground.’ ” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (citation omitted). This rule is qualified only by exceptions not applicable to the case now before us. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003).

Law and Analysis

Rule 60(b)(4) provides, in pertinent part, that “the court may relieve a party ... from a final judgment ... [if] ... the judgment is void.... ” Rule 4(c)(6), Ala. R. Civ. P., provides, in pertinent part, that service of process on a foreign corporation must be made “by serving the agent authorized by appointment or by law to receive service of process or by serving'the corporation by certified mail at any of its usual places of business.” To establish proper service on a corporation by service on an alleged agent not authorized by appointment of the corporation, a plaintiff must prove that the corporation exercised a “high degree of control” over the alleged agent. Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993). “ ‘ “ ‘The apparent [authority] of an agent is to be determined by the acts of the principal, and not by the acts of the agent Northington v. Dairyland Ins. Co., 445 So.2d 283, 285 (Ala.1984) (quoting Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 601, 234 So.2d 593, 597 (1970) (quoting in turn Am.Jur.2d Agency § 74)).

“Neither the Alabama Code nor our Rules of Civil Procedure authorize process service on the defendant’s attorney unless performed in compliance with Rule 4(h), Singleton v. Allen, 431 So.2d 547 (Ala.Civ.App.1983), or unless there is credible evidence of the appointment of the attorney as agent for purposes of service of process, or that he is authorized by law in accordance with Rule 4(c)(1).... ” Colvin v. Colvin, 628 So.2d 802, 803 (Ala. Civ.App.1993). Rule 4(h), Ala. R. Civ. P., provides that “[a] defendant or the defendant’s attorney may accept or waive service of process, provided that said acceptance or waiver is in writing and signed by the defendant and a credible witness.” “ ‘ “Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.” ’ ” Russell Coal, 845 So.2d at 783 (quoting Northbrook Indem., 769 So.2d at 893).

Although Rule 4(h), Ala. R. Civ. P., provides the restrictive formalities required for a party to waive service of process before filing a motion or responsive pleading, Rule 12(h)(1), Ala. R. Civ. P., provides that a defendant which does file a Rule 12 motion or responsive pleading waives any insufficiency of the service of process on that defendant unless the defendant asserts that insufficiency in the Rule 12 motion, the responsive pleading, or an amendment to the responsive pleading:

“Rule 12....
“(h) Waiver or Preservation of Certain Defenses.
“(1) A defense of ... insufficiency of service of process is waived ... if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof....”

In pertinent part, § 34-3-22, Ala.Code 1975, provides that “the court may at any stage of the proceedings, upon proof [that an attorney has appeared for a party without authority], relieve the party for whom the attorney has assumed to appear from the consequences of [the attorney’s] acts.” (Emphasis added.) “ ‘An appearance in a suit by an attorney of the proper court, is presumed to be authorized. The burden of proof is upon the party denying the authority.’ ” Pallilla v. Galilee Baptist Church, 215 Ala. 667, 669, 112 So. 134, 135 (1927) (quoting Doe v. Abbott, 152 Ala. 243, 245, 44 So. 637, 637 (1907)). “Where the authority of an attorney to appear for a party to a cause or proceeding is a subject of inquiry, the appearance of the attorney is presumptive evidence of the authority of the attorney to represent the party; and, in the absence of evidence to the contrary, such appearance is sufficient to justify the conclusion that the attorney was authorized by the party to appear and represent him in the cause or proceeding.” Kemp v. Donovan, 208 Ala. 289, 290, 94 So. 168, 169 (1922) (citations omitted). Accord 7 Am.Jur.2d Attorneys at Law § 160 (1997) and 7A C.J.S. Attorney & Client § 171 (1980); But cf. Singleton v. Allen, 431 So.2d 547, 549 (Ala.Civ.App.1983), addressed infra.

This rule, consisting of the presumption of the appearing attorney’s authority to appear and the burden of proof on the challenging party, applies against a defaulted defendant, like Kingvision, which denies that it has either received service of process or authorized the attorney to accept service, to make an appearance, or to waive objections to service and in person-am jurisdiction. The persuasive case of Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972), addresses precisely this scenario and affirms the ruling of the trial court denying relief from the challenged judgment:

“The rules which govern our consideration of this case are well established. The filing of a pleading is a general appearance. Rule 65(c), Rules of Civil Procedure. Jurisdiction of the person in a civil case may be acquired by service of notice in the manner and form prescribed by law, or by defendant’s general appearance. Boyer v. Iowa High School Athletic Association, 258 Iowa 285, 138 N.W.2d 914 (1965); Emery Transportation Company v. Baker, 257 Iowa 1260, 136 N.W.2d 529 (1965); Baker v. Baker, [248 Iowa 361, 81 N.W.2d 1 (1957)]. A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court. Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 155 N.W.2d 478 (1967); O’Connor v. Youngblade, 250 Iowa 808, 96 N.W.2d 457 (1959). He may not thereafter avoid that jurisdiction by special appearance. Gardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922); 5 Am.Jur.2d, Appearance § 16, pp. 491-92; 6 C.J.S., Appearances § 24, p. 67.
“Where an attorney appears for a party to an action it is presumed he has authority to do so. Gibbons v. Belt, 239 Iowa 961, 33 N.W.2d 374 (1948); City of Cherokee v. Illinois Cent. R. Co., 157 Iowa 73, 137 N.W. 1053 (1912). This presumption is not conclusive and may be rebutted. Dragstra v. Northwestern State Bank of Orange City, 192 N.W.2d 786 (Iowa 1971). However, it may be overcome only by clear and satisfactory proof. Sloan v. Jepson, 217 Iowa 1082, 252 N.W. 535 (1934). The presumption in favor of authority for appearance is especially strong where, as here, validity of a judgment is at issue. Liken v. Shaffer, 64 F.Supp. 432 (N.D.Iowa 1946).
“In this case the answer filed by attorney Cardamon, if authorized, was a general appearance obviating necessity of notice and subjecting the mother personally to district court jurisdiction.”

This rule, consisting of the presumption of authority and the burden of proof, does not impair the virtually axiomatic rule that a party’s nonappearance does not waive a want of in personam jurisdiction attributable to a lack of service of process. See Bennett v. Circus U.S.A, 108 F.R.D. 142, 149 (N.D.Ind.1985); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1391 (2d ed.1990). Rather, this rule provides a procedure for judging the validity of a purported appearance by an attorney on behalf of a party.

Indeed, a party which has suffered a default judgment because of that party’s nonappearance after purported service and which denies receipt of the service of process confronts an analogous adverse presumption and burden of proof, as Image Auto, Inc. v. Mike Kelley Enterprises, Inc., 823 So.2d 655, 657-58 (Ala.2001), explains:

“The Rule 60(b) standard requires Image Auto to present clear and convincing evidence that it did not receive service of process. Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978). A signed return certificate filed in the clerk’s office provides a rebuttable presumption that the party to whom the service was sent has been properly served. Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 213 (Ala.1991). It is uncontested that Kelley Enterprises received a signed return certificate and that it properly filed that certificate in the clerk’s office. Kelley Enterprises, therefore, established a rebuttable presumption that Image Auto was properly-served.
“Image Auto cannot rebut the presumption of correctness merely by denying that it was properly served.
“ ‘[A] properly executed return will not be invalidated upon the uncorroborated statements of the parties in which they deny service upon themselves. Raine, supra. Corroboration does not necessarily mean that there must be additional, supporting testimony from another person; however, a mere denial by the party challenging the return is insufficient. Raine, supra. There must be additional evidence, such as statements of fact, tending to support the denial of service of process. See, e.g., Nolan v. Nolan, 429 So.2d 596 (Ala.Civ.App. 1982), where the only evidence presented was the testimony of the party successfully challenging the return, but that party was able to provide additional facts in her testimony which tended to support her denial of service.’
“Powell v. Central Bank of the South, 510 So.2d 171, 172 (Ala.1987).”

The rule that the law presumes the authority of the appearing attorney and that the challenging party bears the burden of proof neither violates due process nor imposes an undue burden on a defendant which has not been served with process and which is confronted with an unauthorized appearance and waiver by an attorney.

“We have held that the constitutional requirement of due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing. Ex parte Rice, 265 Ala. 454, 92 So.2d 16 [ (1957) ]; Garrett v. Reid, 244 Ala. 254, 256, 13 So.2d 97 [(1943)]; Frahn v. Greyling Realization Corporation, 239 Ala. 580, 583, 195 So. 758, 761 [ (1940) ]. In Frahn it was also said:
“ ‘... Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard....’”

Cooper v. Watts, 280 Ala. 236, 240, 191 So.2d 519, 522-23 (1966). Any defendant which has not received service but which has nonetheless suffered a default judgment retains the right to challenge the judgment until and when the defendant does receive notice, actual or constructive, Rule 60(b)(4), Ala. R. Civ. P., and McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763 (Ala.Civ.App.1996); and the presumption of the appearing attorney’s authority and the burden of proof on the defendant challenging that authority in no way impair the defendant’s opportunity to be heard on that challenge or the defendant’s right to a judgment entered upon that challenge. This presumption and burden no more violate due process than do the analogous presumption and burden that confront a defaulted defendant which denies receipt of service and challenges the return of service. See Image Auto, supra.

An absence of the presumption of authority in the appearing attorney and an absence of the burden on the challenging party in cases like the one before us would create two problems. First, such absence would leave the courts, and plaintiffs, with no assurance whatsoever that any Rule 12(h)(1) waiver is ever valid, even though such waivers are common to responsible, effective defense practice. Any defendant at any time could, without proof, claim that it had not received service and had not authorized the attorney to file the motion or pleading which waived lack of service and lack of in personam jurisdiction. The second problem, related to the first, is that such an unsupported challenge would, unless the record already were to show the attorney’s authority, put the plaintiff to the task of obtaining discovery from all of those who might have authorized the appearing attorney. On the other hand, to rebut the presumption that an appearing attorney has been authorized, the defaulted defendant needs only to submit a competent, factual affidavit demonstrating the lack of service and the lack of authority in the attorney to appear.

Singleton v. Allen, supra, recognizes this presumption, with its burden of proof, but then limits the rule:

“Plaintiff correctly states in brief that an attorney’s appearance in a suit is presumed authorized. The burden of proving that the attorney did not have authority to appear is on the party denying authority. Pallilla v. Galilee Baptist Church, 215 Ala. 667, 112 So. 134 (1927); Kemp v. Donovan, 208 Ala. 289, 94 So. 168 (1922); see section 34-3-22, Code 1975. The defendants testified they were not served with the summons and complaint and did not authorize Mr. Evans [the attorney] to accept service for them. Moreover, there is no evidence in the record that Mr. Evans was employed by defendants to represent them in this lawsuit or to receive service of process on their behalf. Plaintiff argues, however, that the Singletons failed to meet their burden of proving Evans acted without authority.
“We note however that the cases relied upon by plaintiff hold that the attorney who appears has presumptive authority to represent the defendant apparently after the latter has been properly served with process. Such is not the case in this lawsuit. Neither the Alabama Code nor our rules of civil procedure authorize process service on the defendant’s attorney unless done in compliance with rule 4(h), [Ala.] R. Civ. P.”

431 So.2d at 549 (emphasis original). The statement by the Singleton court limiting the rule to cases against defendants who or which have “been properly served with process” may have been unnecessary because, as the first-quoted paragraph of Singleton reveals, the defendants may in fact have carried their burden, without contradiction in the record, by testifying that they were not served and that the attorney was not authorized. Singleton does not say that the defendants’ testimony was either incompetent, conclusory, or otherwise insufficient. Carrying their burden without contradiction would have entitled the defendants to relief from the default judgment even with the application of the rule presuming the attorney’s authority and placing the burden of proof on the defendants.

We have found no other case in any other jurisdiction that has followed the language in Singleton limiting the rule to cases against defendants who or which have “been properly served with process.” Thus, for all of the reasons explained in our discussion of the rule presuming the authority of the appearing attorney and placing the burden of proof on the challenging party, we disapprove the limiting language in Singleton. We overrule Singleton to whatever extent it is inconsistent with today’s opinion.

In pertinent part, Rule 602, Ala. R. Evid., provides that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” A witness’s conclusory statement regarding the import of documents or verbal communications that are not introduced into evidence is not admissible. See Ex parte Head, 572 So.2d 1276, 1281-82 (Ala.1990) (holding that a witness’s eon-clusory statements in an affidavit describing individuals’ relationships with partnerships on the basis of documents filed in probate court were not admissible since authenticated copies of the documents on which the conclusory statements were based were not attached to the affidavit).

In the present lawsuit, the plaintiff, in serving process on an attorney representing Kingvision instead of serving process on Kingvision itself or on the registered agent of Kingvision for service of process, failed to effect proper service of process on Kingvision under Rule 4(c), Ala. R. Civ. P. Colvin, supra. The plaintiffs argument that Salomon & Mittelberg exercised such a high degree of control over the activities of Kingvision in Alabama that Salomon & Mittelberg constituted an “agent authorized by law” to receive service of process is invalid. First, the cases the plaintiff cites in support of this argument, Horizons 2000, supra, and Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983), do not support this argument. Those cases addressed the issue of whether an agent was authorized by law to receive service of process on a principal because of the control exercised by the principal over the agent rather than the control exercised by the agent over the principal’s affairs. Second, the evidence cited by the plaintiff in support of this argument, Nelms’s opinion that Salo-mon & Mittelberg had apparent authority to act as the general agent of Kingvision for collection of claims for the unlawful interception of the Holyfield-Tyson fight in the State of Alabama, lacked a foundation because Nelms, who had no contact with Kingvision, based his opinion on the actions of Salomon & Mittelberg, the putative agent, rather than the actions of Kingvision, the putative principal. See Northington, 445 So.2d at 285 (“ 1 “[Apparent authority] is to be determined by the acts of the principal, and not by the acts of the agent.” ’ ”). Furthermore, since the plaintiffs argument was wrong, the trial court, in adopting this argument as the rationale for denying the Rule 60(b) motion, denied the motion for an erroneous reason. However, despite the erroneous rationale, the trial court reached the correct result in denying the motion.

While Kingvision correctly argues that the plaintiff did not effect proper service of process on Kingvision and that Kingvision did not waive service of process under Rule 4(h), Ala. R. Civ. P., Kingvision overlooks Nelms’s filing of the Rule 12(b) motion, answer, and amended answer that failed to assert the insufficiency of the service of process on Kingvision. If Nelms had authority to file these pleadings on behalf of Kingvision, then under Rule 12(h)(1), Ala. R. Civ. P., Kingvision waived the insufficiency of the service of process. Thus, the dispositive issue in this appeal is whether Nelms had authority to file these pleadings.

Because, as already discussed at length, an attorney’s appearance on behalf of a party in a lawsuit is presumed to be authorized, Kingvision bore the burden of proving that Nelms lacked authority to file these pleadings. However, the only evidence Kingvision presented that was relevant to the issue of Nelms’s authority was Westrich’s affidavit, which failed to refute effectively Nelms’s authority to file these pleadings. Westrich, who testified only by affidavit, stated that “[i]t was never contemplated by Kingvision that Salomon & Mittelberg would represent Kingvision in any lawsuit filed against Kingvision in state court.” If admissible, this testimony would constitute indirect evidence that Nelms did not have authority to file motions or pleadings on behalf of Kingvision, because Nelms derived his authority from Salomon & Mittelberg. However, West-rich’s testimony, aptly challenged by the plaintiff, was inadmissible for two reasons. First, her affidavit did not contain “evidence ... sufficient to support a finding that the witness ha[d] personal knowledge of the matter” as required by Rule 602, Ala. R. Evid. Second, her testimony about the “contemplation” of Kingvision was a conclusion founded on communications between Kingvision and Salomon & Mittel-berg that Kingvision did not introduce into evidence.

The only evidence Kingvision offered to establish Westrich’s personal knowledge of the authority of Salomon & Mittelberg was her statement, “I am vice president of Kingvision.” This statement evidenced no more than that she was the vice president of Kingvision when she made her affidavit in 2002. Westrich did not testify that she was vice president of Kingvision in 1997 when Kingvision employed Salomon & Mittelberg and Salomon & Mittelberg employed Nelms. Nor did she testify that she ever communicated with Salomon & Mittelberg or that she was present when any other employee of Kingvision communicated with Salomon & Mittelberg. She presented no evidence whatsoever that she had personal knowledge of the existence or nonexistence of authority in Salomon & Mittelberg to represent Kingvision.

Moreover, Westrich provided no factual foundation for her conclusory statement, “It was never contemplated by Kingvision that Salomon & Mittelberg would represent Kingvision in any lawsuit filed against Kingvision in state court.” Westrich did not authenticate and attach to her affidavit any written contract or agreement or any correspondence between Kingvision and Salomon & Mittelberg and did not supply testimony to any verbal communications between Kingvision and Salomon & Mittelberg.

While the trial court did not rule on the plaintiffs motion to strike Westrich’s affidavit, the plaintiff was entitled to an order striking Westrich’s conclusory statement, “It was never contemplated by Kingvision that Salomon & Mittelberg would represent Kingvision in any lawsuit filed against Kingvision in state court.” Haygood v. Wesfam Restaurants, Inc., 675 So.2d 1312, 1314 (Ala.Civ.App.1996), overruled on other grounds, Rothenberger v. Cast Prods., Inc., 716 So.2d 1220, 1224 (Ala.Civ.App. 1997):

“The motion to strike was not ruled upon by the trial court; however, because the deficiencies of the affidavit were brought to that court’s attention, they are properly subject to our review.”

(Citations omitted.) Thus, Kingvision failed to present any admissible evidence that Nelms lacked authorization by Kingvision to file the Rule 12(b) motion, answer, or amended answer waiving, under Rule 12(h)(1), the insufficiency of the service of process on Kingvision. Because Kingvision waived the insufficiency of the service of process on it, the default judgment was not void for the plaintiffs failure to effect proper service of process on Kingvision. Moreover, because the challenge by Kingvision to the in personam jurisdiction of the trial court was grounded solely on the insufficiency of the service of process on Kingvision, its waiver of the insufficiency of the service of process forecloses also the argument that the default judgment was void for lack of in personam jurisdiction.

Conclusion

Because the default judgment was not void, Kingvision was not entitled to relief pursuant to its Rule 60(b) motion as presented. Thus, the denial of the Rule 60(b) motion is due to be affirmed, even though our reason for affirming differs from the reason of the trial court for denying. See Equifax Servs., 537 So.2d at 465, and Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d at 1020.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

      . Kingvision asserts also that the trial court should have vacated the default judgment because Kingvision presented evidence satisfying the "three-factor analysis” enunciated in
        Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). While Kingvision argued in the trial court that it had a meritorious defense to the plaintiff's claims, and while a meritorious defense is one of the three factors in the "three-factor analysis” enunciated in Kirtland, Kingvision neither cited Kirtland to the trial court nor specifically argued to the trial court that it should vacate the default judgment because the evidence presented by Kingvision satisfied the "three-factor analysis” enunciated in Kin-land. This Court cannot consider an argument that an appellant did not present to the trial court. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) ("[T]his Court will not reverse the trial court's judgment on a ground raised for the first time on appeal. ...”).

      . Authorities cited infra.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte LEASECOMM CORPORATION and MicroFinancial, Inc. and Ex parte Galaxy Mall, Inc. (In re Aaron Cobb et al. v. Galaxy Mall, Inc., et al.)
    1021281 and 1021308.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    Rehearing Applications Denied Feb. 20, 2004.

      Roger L. Bates and E. Shane Black of Hand Arendall, L.L.C., Birmingham, for petitioners Leasecomm Corporation and MicroFinancial, Inc.
    William H. Brooks and William H. Morrow of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner Galaxy Mall, Inc.
    Charles A. McCallum III and R. Brent Irby of the McCallum Law Firm, LLC, Vestavia Hills, for respondents.
   WOODALL, Justice.

Galaxy Mall, Inc., a Utah company, and MicroFinancial, Inc., and its subsidiary, Leasecomm Corporation, Massachusetts companies (the Massachusetts companies will hereinafter be collectively referred to as “Leasecomm”), petition this Court for writs of mandamus directing the trial court to vacate its order denying their motions to enforce outbound forum-selection clauses in contracts between them and Aaron Cobb. We deny the petitions.

On August 22, 2002, Cobb filed a putative class action against Galaxy Mall and Leasecomm. The complaint contained the following pertinent factual averments:

“2. Defendant Galaxy Mall is the entity described herein [that] solicited [Cobb] and [putative] class members to establish a turnkey ‘internet business,’ and offered a purported ‘mentoring program’ for the internet business....
“6. On or about November 9, 2000, [Cobb] and other [putative] class members were solicited by representatives of Defendant Galaxy Mall to attend a meeting at the Governor’s House Motel in Montgomery, Alabama, whereby Galaxy Mall representatives provided a presentation of its internet ‘mentoring program,’ which would help small businesses and persons make money [on] the internet by assisting these individuals in establishing a turnkey ‘internet business.’ ...
“7. Galaxy Mall was to set up a market source on the internet for the participants at the meeting. This would include the custom design of a website, listing of online shopping mall sites, marketing support, and other services and materials provided by Galaxy Mall. In Plaintiff Aaron Cobb’s case, he intended to establish an internet business which marketed and sold certain dietary products.
“8. At this meeting, participants [signed] up for the mentoring program [by executing a Galaxy Mall, Inc., order form] for a ‘tuition’ in the amount of $2,995....
“9. Defendant Galaxy Mall, in conjunction with ... Defendants Lease-comm and MicroFinaneial, induced [Cobb] and [putative] class members to purportedly ‘finance’ this tuition in the form of a lease to be paid at a rate of $137 per month for 36 months....
“10. The purported ‘tuition’ for the Galaxy Mall program was payable in the form of a non-cancelable lease agreement [the ‘Lease Agreement’] through [Leasecomm]. The Galaxy Mall representatives present at this meeting had Leasecomm [Lease Agreement] applications and agreements on hand and presented them to [Cobb] and [putative] class members as the only available method to ‘lease’ the ‘tuition’ in this manner....
“11. In truth, these Lease Agreements were not for ‘tuition,’ but rather were for the leasing of certain computer-related equipment from a third party. That is, these Lease Agreements allowed Leasecomm to purchase certain computer-related equipment from a third party and then ‘lease’ the equipment back to the participant. Upon information and belief, [Cobb’s] lease was actually for equipment or software needed to process credit cards on the internet. ... At no time were these facts disclosed to either [Cobb] or the [putative] class members.
“12. The $137 monthly payments were automatically deducted by Lease-comm from [Cobb’s] bank account....
“13. Shortly after [Cobb] and [putative] class members signed up for the purported ‘mentoring program’ and entered into a lease for what was believed to be ‘tuition’ for this program, [they] never heard from Galaxy Mall again. [Cobb] made numerous attempts to contact Galaxy Mall about the program and market support that Galaxy Mall was to provide, but all to no avail. Moreover, [Cobb] never received any leased ‘equipment’ from Leasecomm or any other defendant.
“14. Because of the Defendants’ scam and Galaxy Mall’s subsequent disappearance, [Cobb] and [putative] class members were stuck with non-cancela-ble Lease Agreements which Lease-comm was aggressively trying to collect on....
“15. Leasecomm made wrongful deductions from [Cobb’s] bank account for the worthless lease for ... over a year. These deductions by Leasecomm included not only the monthly $137 lease payment, but also included certain other bogus and unauthorized charges. Some of the bogus charges include, but are not limited to, a $15 ‘payment charge back fee,’ and a $5 ‘statement billing charge’ simply to send out a bill....
“16. The entire artifice and scheme described herein was developed by the Defendants collectively in order to' induce unknowing individuals to enter into certain non-cancelable Lease Agreements for items purchased by Lease-comm and purportedly ‘leased’ back to the individual, then leaving those individuals stuck in a non-cancelable Lease Agreement for an item that is of no use to them.”

The complaint sought compensatory and punitive damages “in an amount not to exceed $74,000 per class member.” Recovery was sought on theories of (1) breach of contract, (2) fraud, (3) fraudulent suppression, (4) conspiracy, (5) theft by deception, (6) conversion, and (7) violation of statutory usury laws.

On October 29, 2002, Galaxy Mall filed a “Motion to Enforce Forum Selection Clause.” The motion was based on a clause on the reverse side of the order form provided by Galaxy Mall and signed by Cobb, which provided: “[T]he parties agree that any and all disputes arising out of this transaction ... shall be resolved in the courts of the State of Utah in the County of Utah or the United States District Court for the State of Utah.” (Emphasis added.) Specifically, the motion stated: “All of Cobb’s allegations against Galaxy Mall arise directly out of the transaction memorialized by the [order form] executed by ... Cobb.... Accordingly, the forum selection agreement entered into by the parties is due to be enforced, and this ease should be dismissed.” (Emphasis added.)

Leasecomm had filed a similar motion on September 25, 2002, based on a forum-selection clause in the lease agreement entered into between Leasecomm and Cobb; that clause provided:

“The Parties hereby ... consent and submit to the exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts and expressly agree to such exclusive forum for the bringing of any suit, action or other proceeding arising out of their obligations hereunder, and expressly waive any objection to venue in any such Courts.... ”

(Some emphasis added; boldface type and some emphasis deleted.) More specifically, Leasecomm’s motion stated:

“Cobb’s lawsuit clearly arises out of the Lease.... Indeed, Cobb’s entire case is asserted to dispute any obligations under the Lease.
“13. Therefore, this Court should enforce the forum selection clause in the Lease, and dismiss this case for improper venue. Cobb should bring this case in Massachusetts pursuant to the forum, selection clause.”

(Emphasis added.)

On April 1, 2003, the trial court denied the motions, stating: “[E]nforcement of either forum selection clause would be unreasonable under the circumstances because the clauses effectively deny [Cobb] and remaining Alabama customers ... their day in court.” More specifically, the court said:

“The court ... finds that enforcement of either clause would be unreasonable because either Massachusetts or Utah would be seriously inconvenient for the trial of this matter. [Cobb] seeks to represent an Alabama only class. The Galaxy Mall presentation where the alleged misrepresentations were made took place in Montgomery, Alabama. Accordingly, all potential class members and material witnesses to the alleged fraud are located in Alabama. These witnesses are arguably beyond the subpoena power of a Massachusetts [or Utah] court. To conduct the trial of a case challenging misrepresentations made to Alabama citizens in a foreign jurisdiction raises serious inconvenience concerns.
“Additionally, forcing [Cobb] to file separate actions on opposite ends of the country when the claims against [all] Defendants (who are named as co-conspirators) are so closely intertwined raises concerns of judicial efficiency. Alabama is the only place where all the transaction elements and participants converge. The evidence indicates that the Defendants are nationally active with employees and lawyers positioned across the country. [Cobb] has offered evidence demonstrating that Lease-comm actually litigates in Alabama when attempting to enforce default judgments obtained against Alabama citizens in Massachusetts.”

These petitions challenge that order.

“[A] petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an ‘outbound’ forum-selection clause when it is presented in a motion to dismiss.” Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001); see Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). “[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001). “[T]he review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.” Ex parte D.M. White Constr. Co., 806 So.2d at 372.

At the outset, we note that the issue in this case is not whether an outbound forum-selection clause can be enforced. That issue was settled in Professional Insurance Corp. v. Sutherland, 700 So.2d 347 (Ala.1997). Since then, it has been well established that such a clause will be “upheld unless the party challenging the clause clearly establishes that it would be unfair or unreasonable under the circumstances to hold the parties to their bargain.” Ex parte CTB, Inc., 782 So.2d at 190-91. The showing is sufficient where it is clearly established “ ‘(1) that enforcement of the forum selection clause[ ] would be unfair on the basis that the contract[ ] [was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action.’ Id. at 191 (emphasis added). “Inconvenience” sufficient to void a forum-selection clause is present where a “trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court.” Ex parte Rymer, 860 So.2d 339, 342 (Ala. 2003). See also Sutherland, 700 So.2d at 353-54 (Maddox, J., concurring in the result). “The enforcement of a forum-selection clause creates a serious inconvenience if it would result in two lawsuits involving similar claims or issues being tried in separate courts” Alpha Sys. Integration, Inc. v. Silicon Graphics, Inc., 646 N.W.2d 904, 909 (Minn.Ct.App.2002) (emphasis added). “A forum-selection clause is also unreasonable if its enforcement would contravene a strong public policy of the forum in which the suit is brought.” Id. at 910.

In its mandamus petition, Galaxy Mall states:

“[Galaxy Mall] seeks a writ of mandamus directing the [trial judge] to vacate his order dated April 1, 2003, denying Galaxy Mali’s Motion to Enforce Forum Selection Clause, and to enter an order granting Galaxy Mall’s motion and dismissing the case without prejudice so the claims against Galaxy Mall may be filed in the State of Utah in the County of Utah or the United States District Court for the State of Utah, as set forth in the forum selection clause contained in the contract between [Cobb] and Galaxy Mall.”

Galaxy Mali’s mandamus petition, at 3-4 (emphasis added). Leasecomm, on the other hand, states in its petition:

“The [Lease] Agreement’s exclusive forum-selection clause provides that Cobb’s claims shall be litigated in a Massachusetts court. ...
“Therefore, this Court should issue a writ of mandamus directing the [trial court] to vacate its April 1, 2003, Order denying Leasecomm and MicroFinan-cial’s motion to dismiss this case, and to enter an order dismissing this case based on the mandatory forum selection clause contained in the [ajgreement between Leasecomm and Cobb.”

Leasecomm’s mandamus petition, at 30 (emphasis added).

Elsewhere, Leasecomm argues that the forum-selection clause in Galaxy Mali’s order form, which purports to establish Utah as the forum for claims against Galaxy Mall, does not affect the enforceability of the forum-selection clause in the lease agreement, which purports to establish Massachusetts as the forum for claims against Leasecomm, because, Leasecomm insists, “Cobb signed both contracts, and, upon doing so, it was entirely foreseeable that a dispute involving both defendants might be required to be asserted in two separate forums.” Leasecomm’s mandamus petition, at 24-25 (emphasis added). Indeed, it is undisputed that Galaxy Mall and Leasecomm anticipate the splitting of Cobb’s claims for separate trials against Galaxy Mall and Leasecomm in Utah and Massachusetts, respectively.

Thus, this case involves not one — but two — forum-selection clauses, each purporting to establish venue for the trial of a portion of the plaintiffs case in a different forum. This Court has not addressed a similar issue since Sutherland.

Alabama has a strong policy against splitting causes of action or claims. This policy finds expression in the “liberal joinder of claims and of parties,” Ala. R. Civ. P. 82(c), Committee Comments (emphasis added), which is facilitated by the Alabama Rules of Civil Procedure. The policy promotes judicial economy, as well as convenience and fairness to the parties. See Century 21 Preferred Props., Inc. v. Alabama Real Estate Comm’n, 401 So.2d 764, 769 (Ala.1981) (discussing the rationale for federal pendent jurisdiction). “ ‘ “[T]he whole tendency of our decisions is- to require a plaintiff to try his whole cause of action and his whole case at one time.” ’ ” Id. (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). “The prohibition against splitting a cause of action is for the purpose of avoiding vexatious litigation and a multiplicity of lawsuits.” Terrell v. City of Bessemer, 406 So.2d 337, 339 (Ala.1981).

On similar policy grounds, “courts have held that where a plaintiffs suit is truly broader than the forum selection clause and the structure of the complaint is not an attempt to avoid the forum selection clause, enforcement of the forum selection clause would be unreasonable.” Pegasus Transp., Inc. v. Lynden Air Freight, Inc., 152 F.R.D. 574, 577 (N.D.Ill.1993) (forum-selection clause that purported to require the splitting and remand to state court of some of the plaintiffs claims was unreasonable and therefore unenforceable). See, e.g., Personalized Marketing Serv., Inc. v. Stotler & Co., 447 N.W.2d 447 (Minn.Ct.App.1989), on which Cobb relies.

Stotler arose out of transactions involving Personalized Marketing Services, Inc. (“PMS”), a Minnesota commodities broker; Stotler & Company (“Stotler”), an Illinois commodities broker; and numerous clients of PMS (“the clients”). PMS sued Stotler and the clients, who, in turn, counterclaimed against PMS and cross-claimed against Stotler. 447 N.W.2d at 449. Stot-ler invoked a forum-selection clause contained in “customer agreements” between Stotler and all the clients purporting to require resolution in Illinois of disputes “related to” the customer agreements. Id. Consequently, the trial court dismissed the clients’ cross-claims without prejudice, on the basis of those forum-selection clauses. Id. The clients appealed, contending that “enforcement of the forum-selection clause [was] unreasonable.” 447 N.W.2d at 450.

The Minnesota Court of Appeals reversed, concluding that the clients’ cross-claims against Stotler were “intertwined with PMS’s claims against Stotler,” 447 N.W.2d at 453, and, therefore, that “[e]n-forcement of the forum selection clause ... would result in two lawsuits involving the same or similar issues creating serious inconvenience.” 447 N.W.2d at 452 (emphasis added). The court explained:

“In this action PMS’s claims against Stotler for indemnification are derived from [the clients’] claims against PMS. Thus, PMS, which is not a party to the forum selection clause, has an interest in having Stotler’s liability to [the clients] determined as part of the pending lawsuit in [Minnesota],
“... [T]he policy of judicial economy and the prevention of multiple actions on similar issues overrides Stotler’s interest in litigating [the clients’ cross-claims] in an Illinois forum and renders the forum selection clause patently unreasonable .... ”

447 N.W.2d at 453 (emphasis added). Cf. Farmland Indus., Inc. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848 (8th Cir.1986) (refusing to enforce a forum-selection clause, in part because enforcement would result in “piecemeal resolution of [the] case”), abrogated cm other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989).

To be sure, Stotler did not, as Galaxy Mall points out, involve competing forum-selection clauses, as does this case. However, that distinction is not significant. By affidavit, Cobb stated:

“I attended a meeting on November 9, 2000, at the Governor’s House Motel in Montgomery, Alabama, along with several other participants. At this meeting, Galaxy Mall representatives provided a presentation and offered to set up a ‘market source’ on the internet for the participants, which included the custom design of a website, marketing support, consultation, and other services and materials provided by Galaxy Mall. These representatives told the participants that the total cost or ‘tuition’ for the program was $7,270.00, but that if we agreed to sign up for the program that day, we could take advantage of the limited ‘special offer’ and receive the ‘tuition’ for just $2,995.00.
“These representatives told us that we had been specially ‘pre-approved’ to finance this tuition with monthly payments, but that this offer of financing would not be valid unless we acted on the special offer that day. We were also told that the price of this program would go up if we did not act on the ‘special offer’ that day....
“These Galaxy Mall representatives had the [Leasecom/m] applications and agreements on hand in order for us to receive the financing in the manner offered. These representatives stated that this was the only available method to finance the ‘tuition’ in this manner. These representatives never explained the financing arrangement or the lease agreement, nor was there ever any mention of a lease for equipment or for a ‘license’ from a third party. I did not know, and never understood, that I would actually be leasing a ‘license’ needed to process cards on line from a third party. Had I known that the representations made to me by these Galaxy Mall representatives were false, I would not have signed up for the mentoring program and certainly would not have agreed to the offer of financing.”

(Emphasis added.)

Galaxy Mall and Leasecomm do not dispute that the purpose of the lease agreement was to finance the participants’ transactions with Galaxy Mall. Indeed, Leasecomm describes its role as that of a “finance lessor of business software and equipment.” Leasecomm’s mandamus petition, at 1. Leasecomm further states: “On November 9, 2000, [Cobb] attended [a workshop] where Galaxy Mall promoted its virtual storefront operation.... It is undisputed that during that workshop, Cobb executed a [lease agreement].... ” Thus, it must be conceded that the execution of the order form- and the lease agreement constituted a single transaction.

The claims against Galaxy Mall and Lea-secomm are, therefore, inextricably inter-tunned, as were the claims in Stotler. In fact, enforcement of the forum-selection clauses in this case would split the claims and require litigation of the intertwined issues in forums far removed, not only from Alabama, in which the cause of action arose, but from each other. The policy considerations underlying Stotler weigh heavily against enforcement of the forum-selection clauses in this case. Galaxy Mall and Leasecomm cite no published case enforcing two or more outbound forum-selection clauses, thereby splitting claims arising out of a single transaction. Certainly, Clinton v. danger, 583 F.Supp. 284 (N.D.Ill.1984), cited by both petitioners, is not such a case.

The complaint filed in Clinton challenged the administration of three trust agreements, which were executed in 1968 (“Trust One”), 1979 (“Trust Two”), and 1981 (“Trust Three”). Each of the agreements named a different trustee, and each contained a unique forum-selection clause. Id. at 286. Trust One purported to establish venue in the Bahama Islands; Trust Two in Jersey, Channel Islands; and Trust Three in Guernsey, Channel Islands. Id. Thus, unlike this case, the dispute in Clinton arose out of a “related series of occurrences,” 583 F.Supp. at 288 (emphasis added), spanning approximately 13 years.

The defendants in Clinton, which included former trustees, moved to dismiss the action, pursuant to Fed.R.Civ.P. 12, on the bases of the three forum-selection clauses in their respective trust agreements. 583 F.Supp. at 286. In considering the motions to dismiss, the district court stated:

“The only decision to be made now is whether any alternative forum is reasonable, not specifically whom can be brought into the forum finally chosen. If there is at least one foreign forum which is reasonable, the dispute should not be prosecuted in this District. The plaintiffs will remain free to reinstitute proceedings in that foreign forum, or anywhere else that they believe is proper. Whether there is jurisdiction over all defendants in the foreign forum selected by the plaintiffs will be a question for that court to decide.”

583 F.Supp. at 289 (emphasis added). The district court found that “at least one, if not all, of the forum selection causes [was] reasonable.” 583 F.Supp. at 290. Consequently, it dismissed the action “without prejudice to the right of the plaintiffs to attempt to refile it in another forum.” 583 F.Supp. at 290.

Contrary to the proposition for which Galaxy Mall and Leasecomm cite Clinton, the Clinton court did not split and disperse, geographically, the plaintiffs’ claims. Because it merely dismissed the action, the trial court specifically enforced no particular forum-selection clause. Indeed, part of the court’s purpose in dismissing the action was to prevent claim splitting. Specifically, the court stated:

“[I]f this suit were to remain within this District, several of the defendants ... have argued that no jurisdiction exists over them here due to insufficient contacts. If that is true, the plaintiffs either would have to split their suit among at least two courts or [forgo] some of the claims against certain defendants.”

583 F.Supp. at 288 (emphasis added). In short, Clinton provides little support for enforcement of the forum-selection clauses in this case.

Street, Sound Around Electronics, Inc. v. M/V Royal Container, 30 F.Supp.2d 661 (S.D.N.Y.1999), cited by Leasecomm, is also distinguishable. That case involved an action for “misdelivery and/or nondelivery of five shipments of merchandise delivered on three occasions to defendants in Hong Kong for transport to Brazil.” 30 F.Supp.2d at 662 (emphasis added). It involved a single foreign forum. More significantly, the bill of lading for each shipment contained a “Himalaya clause,” which, the court explained, would prevent case splitting, 30 F.Supp.2d at 663, such as would result from enforcement of the forum-selection clauses in this case.

In summary, the trial court in this case held that enforcement of the outbound forum-selection clauses would be “seriously inconvenient,” and “unreasonable under the circumstances.” Cobb’s claims arise out of a single transaction consummated in Alabama. The order form and the lease agreement were printed forms, drafted by Galaxy Mall and Leasecomm, respectively, each purporting simultaneously to establish venue in different states. Because of the roles assumed by Galaxy Mall and Leasecomm in the presentation of the order form and lease agreement to Cobb and the other participants in the meeting, the claims against them are inextricably intertwined. Enforcement of the forum-selection clauses — as requested by Galaxy Mall and Leasecomm — would result in splitting the claims for trial in two foreign, remote states, contrary to the policy of this State in favor of liberal joinder of parties and claims for resolution in one action. Under the circumstances of this case, we cannot conclude that the trial court exceeded its discretion in denying the petitioners’ motions. The petitions are, therefore, denied.

1021281 — PETITION DENIED.

1021308 — PETITION DENIED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . "A Himalaya clause is a clause in a bill of lading that extends the carrier's defenses and limitations of liability under the bill to the carrier’s agents and subcontractors.” James N. Kirby, Pty Ltd. v. Norfolk Southern Ry., 300 F.3d 1300, 1302 (11th Cir.2002), cert. filed (January 6, 2003). "Himalaya clauses take their name from an English case which involved a vessel called the HIMALAYA.” 300 F.3d at 1302 n. 1.


author: HOUSTON, Justice. HARWOOD, Justice

text:
    Doyle HAMMONDS v. TOWN OF PRICEVILLE.
    1021637.
    Supreme Court of Alabama.
    Dec. 12, 2003.
    Rehearing Denied Feb. 27, 2004.

      Gregory A. Reeves of Edwards, Mitchell & Reeves, Decatur, for appellant.
    L. Ann Grace and Gary K. Grace of Grace, Evans & Matthews, Huntsville, for appellee.
   HOUSTON, Justice.

Doyle Hammonds appeals from a summary judgment entered by the Morgan Circuit Court in favor of the Town of Prieeville. We reverse and remand.

Hammonds became Priceville’s chief of police in 1980. In May 2000, two former girlfriends brought harassment charges against Hammonds. On October 15, 2001, he pleaded guilty to two counts of “harassing communications.” On November 15, 2001, Priceville’s town council convened a hearing to discuss Hammonds’s situation. At the conclusion of that hearing, the council voted 4-2 to remove Hammonds as chief of police. The mayor’s vote was one of the four votes in favor of Hammonds’s removal. Hammonds was subsequently removed as chief of police.

Hammonds petitioned the trial court for a common-law writ of certiorari to review his removal. The trial court granted the petition and subsequently entered a summary judgment for the Town of Prieeville. Hammonds appeals.

Standard of Review

A municipal employee has no statutory right to appeal from a town council’s decision to terminate the worker’s employment. Because a terminated municipal employee has no such right, a petition for a common-law writ of certiorari is the proper method for having the trial court review the council’s decision. Evans v. City of Huntsville, 580 So.2d 1323, 1325 (Ala.1991). Our review of a summary judgment is de novo. DecisionQuest, Inc. v. Hayes, 863 So.2d 90, 94 (Ala.2003). Because the facts here are undisputed, our analysis is limited to determining whether the Town of Prieeville is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.

Analysis

This case concerns the construction of two statutes. Ala.Code 1975, § 11-43-2 states, in pertinent part:

“In all cities and towns having a population of less than 12,000 inhabitants ..., the legislative functions shall be exercised by the mayor and five aider-men. The mayor shall preside over all deliberations of the council. At his discretion, he may vote as a member of the council on any question coming to a vote, except in ease of a tie, in which event he must vote.”

It is undisputed that Priceville has less than 12,000 inhabitants and that it thus falls within this statutory provision.

Ala.Code 1975, § 11-43-160 provides, in pertinent part: “The city council may remove, by a two-thirds vote of all those elected to the council, any [person appointed to office in the city].” Hammonds contends that the mayor’s voting on his removal violated the provision of § 11-43-160 that requires those voting on his removal to be “elected to the council.” He argues that the mayor presides over the council, votes with the council at times, but is not “elected to” that council.

When the language of a statute is clear and unambiguous, we must enforce the statute as written, thus giving effect to its plain meaning. Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999); DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998). However, if the language of a statute is ambiguous or if one statute conflicts with another, we must apply principles of statutory construction to determine the meaning of the statute. One such principle provides that statutes dealing with the same subject matter are to be construed in pari mate-ria. Tucker v. Molden, 761 So.2d 996, 998 (Ala.2000); Tuders v. Kell, 739 So.2d 1069, 1072 (Ala.1999); DeKalb County LP Gas, 729 So.2d at 276. Our constitution, statutes, and caselaw provide no guidance as to what are the “legislative functions” of a municipality and as to whether removal of a municipal officer is legislative or administrative in nature. Because the removal of a municipal officer could be a legislative function, and because § 11-43-2 entitles the mayor to exercise “legislative functions” along with the council, we see an apparent conflict between § 11-43-2 and § 11-43-160, which provides that a municipal officer may be removed only by a two-thirds vote of “those elected to the council.”

Section 11-43-2 states the broad principle that the mayor “may vote as a member of the council on any question coming to a vote.” We hold that § 11-43-160, when read in pari materia with § 11-43-2, provides an exception to this broad principle. The exception concerns not who may vote, but whose vote will actually count in removing a person appointed to office in the municipality. The statute allows removal “by a two-thirds vote of all those elected to the council” (emphasis added). Mayors are “elected to” the office of mayor, not “to the council.” Therefore, a mayor is fully entitled to vote to remove a municipal official, but the mayor’s vote does not count in determining if there was the requisite “two-thirds vote of all those elected to the council” to remove the official.

Had the Legislature not intended to limit the vote on removal of a municipal officer to “those elected to the council,” it would not have explicitly so stated. However, “it is not our place to engage in such a guessing game.” DeKalb County LP Gas, 729 So.2d at 277. Rather, it is our job to say what the law is, not what it should be. Ex parte Pfizer, Inc., 746 So.2d at 964; DeKalb County LP Gas, 729 So.2d at 276. “Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.” Antonin Scalia, A Matter of Interpretation 24 (Amy Gutmann, ed., Princeton University Press 1997).

Because the mayor was not “elected to the council,” his vote was technically allowed on the question of removing Ham-monds as police chief; however, his vote was irrelevant. For that reason, the town council did not have the requisite two-thirds vote needed to remove Hammonds from the office of chief of police; therefore, Hammonds was not properly removed from that office, and the trial court erred in entering a summary judgment for the Town of Priceville. We hereby reverse the trial court’s judgment and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur.

HARWOOD, WOODALL, and STUART, JJ., dissent.

HARWOOD, Justice

(dissenting).

I respectfully dissent. Ala.Code 1975, § 11-43-160, states in full:

“Any person appointed to office in any city or town may, for cause, after a hearing, be removed by the officer making the appointment.
“The city council may remove, by a two-thirds vote of all those elected to the council, any such person in the several departments for incompetency, malfeasance, misfeasance or nonfeasance in office and for conduct detrimental to good order or discipline, including habitual neglect of duty.”

(Emphasis supplied.)

The second paragraph of Ala.Code 1975, § 11^3-2, provides:

“In all cities and towns having a population of less than 12,000 inhabitants according to the last or any subsequent 'federal census, the legislative functions shall be exercised by the mayor and five aldermen. The mayor shall preside over all deliberations of the council. At his discretion he may vote as a member of the council on any question coming to a vote, except in case of a tie, in which event he must vote.”

(Emphasis supplied.)

Ala.Code 1975, § 11-40-6, provides in its first paragraph:

“Municipal corporations now existing or hereafter organized under this title containing 2,000 or more inhabitants shall be called cities. All incorporated municipalities containing less than 2,000 inhabitants shall be called towns. The last census, whether federal or taken as authorized in this title, shall be used in determining the population of a city or town.”

The population of the Town of Priceville, according to the last federal census, conducted in the year 2000, was only 1,631. Therefore, although Priceville qualifies as a “town” (as apparently recognized by its name, “Town of Priceville”), it does not qualify as a city. Ala.Code 1975, § 11-40-1 (included in the Alabama Code of 1907) provides, in pertinent part:

“All municipal organizations now existing in the state of Alabama ... and all towns and cities that may hereafter be incorporated under the provisions of this title shall be bodies politic and corporate ... having perpetual succession under the name now used or hereafter assumed as provided in this title, and each under such name as the ‘City of .’ or ‘Town of.,’ as the case may be...

(Emphasis supplied.) The “title” referred to in § 11-40-1 is Title 11 of the Code (“Counties and Municipal Corporations”), and all of the Code sections cited in this dissent are included in that title.

The previously quoted second paragraph of § 11-43-2 specifically refers to “all cities and towns” having a population of less than 12,000. Thus § 11-48-2 is applicable to the Town of Priceville, requiring that the legislative functions of the town be exercised “by the mayor and five aider-men” and that the mayor “may vote as a member of the council on any question coming to a vote” and must vote “in ease of a tie.” (Emphasis supplied.)

Section 11-43-160 specifies in its first sentence that any appointee to a municipal office “in any city or town” may be removed, for cause, by the officer who made the appointment. The second sentence, being also a new paragraph, pertains to the removal of municipal appointees for any of several named categories of cause. In stating who may exercise that removal power, it restricts the power to the “city council,” choosing not to use a term such as “city or town council.” Thus, I conclude that the second paragraph of § 11 — 43-160 has no application to removal by a town of an appointee to a town office. It deals only with a removal by the city council. Therefore, by process of elimination, the only statutory provision applicable to the situation here, with the exception of the first paragraph of § 11-43-160 (at least insofar as the parties have directed our attention to any applicable Code sections) is the second paragraph of § 11 — 13-2. Under it, the mayor may vote “as a member of the council on any question coming to a vote” and must vote in the case of a tie. That broad provision clearly authorizes the mayor of the Town of Priceville to vote, as he did in this case, and for his vote to be counted “as a member of the council.”

Even assuming, for the sake of argument, that the reference in the second paragraph of § 11-43-160 to “[t]he city council” should be read expansively so as to embrace a “town council,” that provision requires “a two-thirds vote of all those elected to the council.” (Emphasis supplied.) The second paragraph § 11-43-2 mandates that the legislative functions of any city or town having a population of less than 12,000 “shall be exercised by the mayor and five alderman”; however, if the mayor’s vote is discounted, there could never be a situation where an exact “two-thirds vote” could occur. Rather, four out of the five council persons (a four-fifths vote) would have to vote to remove in order to reach, and necessarily exceed, the requisite two-thirds vote. If the mayor’s vote was never to be counted in a vote to remove a municipal appointee, there would be no need in the second paragraph of § 11 — 43-160 to specify precisely “a two-thirds vote.” The provision in question requires “a two-thirds vote of all those elected to the council,” not a two-thirds vote of only those in attendance, assuming a quorum had been achieved, or a two-thirds vote of those voting, as opposed to abstaining. If the mayor and five council persons are entitled to vote to remove a municipal appointee and to have those votes counted, a two-thirds vote would be the vote of four persons.

If the record established who had appointed the police chief to office, and if that person was the present or a former mayor, I would conclude that the mayor’s singular vote to remove the police chief was effective under the first sentence of § 11 — 43—160. The record, however, does not establish who appointed the police chief, thereby eliminating that avenue of analysis.

Although the parties do not address the difference between a city and a town under § 11-40-6 and therefore did not argue the significance of the term “city council” in the second paragraph of § 11-43-160, we nonetheless should consider and apply that pivotal distinction. As has been often stated by this Court, we will affirm a trial judge’s ruling for any reason reasonably available to the trial judge under the record, consonant with the notice requirements of due process. See Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001) (“We will affirm a trial court if it is right for any reason supported by the record.”). Where the terms “cities and towns,” “city or town,” and “city council” are used as terms of classification, it is appropriate for us to take judicial notice of the definitions of those terms provided by the Legislature appearing elsewhere in the same title of the Code of Alabama.

For these reasons, I dissent.

      . This rule of construction is particularly well suited for statutes that were enacted simultaneously. Both of the statutes at issue here were first enacted by the Legislature in 1907.


author: HOUSTON, Justice.

text:
    Danny WILLIAMS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    1021758.
    Supreme Court of Alabama.
    Dec. 19, 2003.
    Rehearing Denied Feb. 13, 2004.

      W. Eugene Rutledge, Birmingham, for appellant.
    Bert S. Nettles and Joseph L. Cowan II of London & Yancey, L.L.C., Birmingham, for appellee.
   HOUSTON, Justice.

This appeal presents the following question: Under what circumstances may a third party bring a claim of bad-faith failure to pay against an insurer of the party who injured the third party? Danny Williams appeals the Jefferson Circuit Court’s summary judgment in favor of State Farm Mutual Automobile Insurance Company (“State Farm”) with regard to Williams’s bad-faith claims against State Farm. We affirm.

I. Material Facts

The material facts, viewed, as we must, in the light most favorable to Williams, are as follows.

On June 17, 2002, Danny Williams was involved in an automobile accident; Frank Shaw was driving the other vehicle involved in the accident. Shaw, who was killed in the accident, was insured by State Farm. While Williams suffered no personal injuries, his tractor-trailer was damaged.

State Farm opened a claim, and the matter was assigned to Derek Kidd, a State Farm claim representative, for handling. Kidd received a demand from Williams’s insurance carrier, Western World Insurance Group, seeking reimbursement of $12,000 Western World had paid Williams on the claim relating to his damaged tractor-trailer, as well as reimbursement of Williams’s $1,000 deductible. Attached to that demand was a copy of an appraiser’s report obtained by Western World; the appraiser had inspected the tractor-trailer on June 24, 2002. The report contained three independent quotes valuing the tractor-trailer at $15,000, $13,000, and $13,000. The average of the three values was $13,667. The maximum payable under Williams’s policy with Western World was $12,000, plus Williams’s deductible, for a total of $13,000. Western World was entitled to the salvage. Therefore, if the tractor-trailer was declared a total loss and was not repaired, Williams would lose between $667 and $2,000, depending on which value figure was used.

The appraiser’s report shows that the tractor-trailer was in “very good shape” before the accident. Therefore, Williams delayed accepting the tractor-trailer as a total loss while efforts were made to secure an axle that could be used to repair the tractor-trailer. No axle could be located, and Williams then accepted the evaluation of the tractor-trailer as a total loss. On August 5, 2002, State Farm reimbursed Western World the $12,000 it had paid to Williams. State Farm paid Williams directly $1,000, as reimbursement for his deductible.

On September 17, 2002, State Farm received a letter from Williams’s attorney, who presented an “offer to settle the bal-anee of Mr. Williams’[s] claim against your insured.” The settlement demand included $965 in towing fees plus $5,890 in lost profits, which Williams computed by taking his daily net profit and multiplying it by the 29 “working days” he claims he was without the tractor-trailer (June 18 to July 26).

On September 12, 2002, Kidd wrote Williams’s attorney, stating that State Farm would agree to reimburse Williams for the towing charges, but claimed that Williams’s demand for 29 days of lost profits was excessive. Specifically, Kidd noted that Williams’s tractor-trailer was inspected on June 24 and determined to be a total loss. Kidd stated the claim should have been settled six days after the inspection and offered Williams 11 days of lost profits for a total of $3,420.78. Coupled with the towing charges, State Farm proposed to pay Williams $4,385.78, contingent upon Williams’s execution of a full release in favor of Shaw’s estate.

Williams’s lawyer and Kidd continued to correspond. Williams’s lawyer claimed that the delay in settling was caused by unsuccessful attempts to repair the tractor-trailer, and Kidd responded that any delay should not be attributed to an attempt to repair the tractor-trailer because the tractor-trailer was a total loss and could not be repaired. The parties could not agree as to the amount of lost profits, and Williams sued State Farm in the Jefferson Circuit Court, alleging bad-faith failure to pay. State Farm filed a motion for a summary judgment, which the trial court granted. This appeal followed.

II. Standard of Review

Our review of a summary judgment is de novo, and we apply the following principles:

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“... Ala.Code 1975, § 12-21-12, mandates that the [nonmovant] meet [its] burden by ‘substantial evidence.’ Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

III. Analysis

In Howton v. State Farm Mutual Automobile Insurance Co., 507 So.2d 448, 450 (Ala.1987), we acknowledged “the fundamental and well-established general principle that an accident victim (a third party to a liability insurance contract) cannot maintain a direct action against the insurer for the alleged liability of the insured where the legal liability of the insured has not been determined by judgment.” However, we also held that a third party could bring a direct action against an insurer under such circumstances “where the insurer undertakes a new and independent obligation directly with a nonparty to the insurance contract in its efforts to negotiate a settlement of the third party’s claim.” 507 So.2d at 450-51 (emphasis added). A “new and independent obligation” exists when “the insurer, acting independently of its insured, enters into a contract with, or commits a tort against, a third-party claimant.” 507 So.2d at 450.

Williams claims that his action is not a direct action against State Farm based on the alleged liability of Shaw; instead, Williams asserts that in refusing to pay the amount Williams demanded for his alleged lost use of his tractor-trailer, State Farm has committed the tort of bad-faith refusal to pay an insurance claim under Alabama’s statute prohibiting such a refusal to pay, codified at Ala.Code 1975, § 27-12-24. That section provides:

“No insurer shall, without just cause, refuse to pay or settle claims arising under coverages provided by its policies in this state and with such frequency as to indicate a general business practice in this state, which general business practice is evidenced by:
“(1) A substantial increase in the number of complaints against the insurer received by the insurance department;
“(2) A substantial increase in the number of lawsuits against the insurer or its insureds by claimants; and
“(3) Other relevant evidence.”

Williams contends that his action against State Farm is allowed under the Howton rule; we disagree. Howton involved a factual scenario similar in some respects to the one here: an automobile accident in which the driver of one car was insured by State Farm, which negotiated directly with the driver of the other car, who was not insured by State Farm. We held that the plaintiffs could maintain certain direct actions against State Farm; however, this holding was driven by the nature of State Farm’s negotiations with the plaintiffs:

“ ‘Following the collision, State Farm Mutual Automobile Insurance Company agreed with the plaintiffs for the plaintiffs to have their vehicle repaired by Long-Lewis Ford and the defendant State Farm Mutual Automobile Insurance Company agreed, prior to the time of the repairs, to pay for the costs of the repairs. In reliance [on] the agreement, the plaintiffs delivered their automobile to Long-Lewis Ford and Long-Lewis Ford repaired it. Following the repairs, State Farm Mutual Automobile Insurance Company refused to pay the bill unless the plaintiffs endorsed a check that contained a general release. Demand was made on State Farm to pay for the property damage, with a reservation of plaintiffs’ rights to claim damages for personal injury, and the demand was refused.’ ”

Howton, 507 So.2d at 449 (quoting the trial court’s order) (emphasis added).

Unlike Howton, where State Farm “agreed, prior to the time of the repairs, to pay for the costs of the repairs,” 507 So.2d at 449, here there was no “new and independent obligation” created by State Farm in its negotiations with Williams. The evidence before the trial court indicates that State Farm agreed to pay Williams a certain amount for the lost use of his tractor-trailer, and Williams disputed the sufficiency of that amount. Had Williams accepted that amount and had State Farm then reneged or tried to place conditions on the distribution of the amount, then, under Howton, Williams might be able to, for example, bring a breach-of-contract action against State Farm on the basis of the “new and independent obligation” created by State Farm. Williams’s bad-faith claim is actually a direct action against State Farm based on Shaw’s alleged liability, even if dressed in different clothes.

However, it is well established that a party cannot bring an action against an insurance company for bad-faith failure to pay an insurance claim if the party does not have a direct contractual relationship with the insurance company. See, e.g., State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 304 (Ala.1999) (noting that “ ‘[T]he plaintiff in a “bad faith refusal” case has the burden of proving: (a) an insurance contract between the parties and a breach thereof by the defendant ....”’ (quoting National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982))); Aplin v. American Sec. Ins. Co., 568 So.2d 757, 758 (Ala.1990) (stating that “proof of the existence of an insurance contract between the parties is a threshold requirement in a bad faith claim”). This rule accords with the language of § 27-12-24, which is clearly directed at regulating insurers’ contractual relationships with their insureds for the protection of the insureds, not third parties. It is undisputed that Williams has no contract of insurance with State Farm and that Williams procured no judgment against Shaw’s estate before bringing his action against State Farm. Given the above, State Farm was entitled to a judgment as a matter of law.

IV. Conclusion

We conclude that there was no genuine issue of material fact and that State Farm was entitled to a judgment as a matter of law. Therefore, the trial court’s summary judgment is affirmed.

AFFIRMED.

LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

      . Williams raises other matters on appeal. However, our resolution of this issue precludes the need to reach those other matters.


text:
    Donna Hammers TOLER v. Arthur C. MURRAY, Judge of Probate of Calhoun County. Ex parte Donna Hammers Toler. (In re Donna Hammers Toler v. Arthur C. Murray, Judge of Probate of Calhoun County).
    1021956 and 1021957.
    Supreme Court of Alabama.
    Jan. 30, 2004.

      David R. Pace and Daniel E. Morris, Anniston, for appellant/petitioner Donna Hammers Toler.
   WOODALL, Justice.

Donna Hammers Toler seeks appellate review of an order of the Calhoun Probate Court denying her petition to probate a will. We hold that she is entitled to relief.

The facts are undisputed. On April 16, 2003, Claude Lehman Hammers executed a self-proving instrument purporting to be his last will. Hammers died on June 12, 2003. On July 21, 2003, Toler, the executrix designated in the document, petitioned the Calhoun Probate Court to admit the will to probate.

On August 11, 2003, although no one had challenged the petition, Probate Judge Arthur C. Murray denied it. His order stated, in pertinent part:

“Ms. Toler, the Petitioner, has filed this Petition to have a document purporting to be the last will and testament of Claude Lehman Hammers, deceased, admitted to probate. The court in considering the Petition has examined the documents and pleadings submitted and also takes judicial notice of this court’s case number 23870, involving the conser-vatorship of Mr. Claude Hammers. Upon consideration of the foregoing, the court finds as follows:
“1. On May 24, 2002, in case number 23870, referenced above, the court declared CLAUDE LEHMAN HAMMERS incompetent and declared the conservatorship for Mr. Hammers which is now pending in this court.-
“2. The purported last will and testament of Claude Lehman Hammers that has been submitted to this court is dated April 16, 2003, and is proper on the face of the instrument.
“3. At the time Mr. Hammers executed the purported last will and testament, he was the subject of the above referenced conserva-torship and the probate court declines, at this time, to take any testimony or other evidence on the issue of testamentary capacity.
“4. As a result of the foregoing con-servatorship being in effect on the date of the purported last will and testament, Mr. Hammers, as a matter of law, lacked testamentary capacity to execute said will.”

(Some emphasis added; some emphasis omitted.)

Because the denial of the uncontested petition placed the case in a peculiar procedural posture, Toler filed both a notice of appeal (case no. 1021956) and a petition for a writ of mandamus (case no. 1021957). The relief sought in both cases is the same, namely, an order directing the probate court to “admit the last will and testament of CJaude Lehman Hammers to probate.” Toler’s brief, at 22. Judge Murray has declined to respond to the mandamus petition or to the appeal. Thus, Toler’s arguments are entirely unre-butted. We deem the appropriate relief to be a writ of mandamus.

It is well settled that a writ of mandamus will issue where the petitioner demonstrates “ ‘(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 Fontaine Trailer Co., 854 So.2d 71, 76 (Ala.2003) (quoting Ex parte State ex rel. C.M., 828 So.2d 291, 293 (Ala.2002)). Toler contends that Judge Murray erred in holding, as a matter of law, that the will, although unopposed and “proper on [its] face,” was invalid, solely because the testator was a protected person under a conservatorship at the time of the will’s execution. We agree.

“[T]here are two standards of legal capacity — one for [conducting] ‘general business affairs’ and one for [making] ‘a will.’ ’’Queen v. Belcher, 888 So.2d 472, 477 (Ala.2003) (emphasis added). The former standard is the higher of the two, id., and is the standard applicable in determining whether to appoint a conservator. Specifically, Ala.Code 1975, § 26-2A-130, provides, in pertinent part:

“(C) Appointment of a- conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (i) the person is unable to manage property and business affairs . effectively for such reasons as mental illness, mental deficiency, physical illness ^ or disability, drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance .... ”

(Emphasis added.)

Moreover, the “the power to make a will” is excluded from those powers that may be exercised “in respect to the estate and business affairs of a protected person” by a court, Ala.Code 1975, § 26-2A-136(b)(3), or by the conservator, Ala.Code 1975, §§ 26-2A-152(a) and -154. Because a ward thus retains testamentary authority, the conservatorship statutes clearly indicate that the ward may also retain testamentary capacity.

On the other hand, to make a valid will, a testator need only “ ‘know[ ] his estate and to whom he wishes to give his property and understand[ ] that he is executing a will.’ ” Ex parte Helms, 873 So.2d 1139, 1147 (Ala.2003) (quoting Smith v. Vice, 641 So.2d 785, 786 (Ala.1994)). Indeed, “ ‘[a] person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.’ Id. “A determination to appoint a [conservator] is not [tantamount to] an adjudication of testamentary capacity.” Barnes v. Willis, 497 So.2d 90, 92 (Ala.1986).

Judge Murray apparently concluded that the existence of the conservatorship precluded a finding that Hammers had testamentary capacity. That conclusion was erroneous. Because Toler has demonstrated a clear legal right to relief, a writ of mandamus shall issue, directing that the will be admitted to probate, and the question of testamentary capacity adjudicated, when — and if — the will is contested, Ala. Code 1975, §§ 43-8-190 and -199, by someone with standing to contest it. The appeal is dismissed as moot.

1021956 — APPEAL DISMISSED.

1021957 — PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.


author: PITTMAN, Judge.

text:
    MASTEC NORTH AMERICA, INC. v. Curtis Dale HOLTON.
    2010103.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    Rehearing Denied Aug. 2, 2002.

      William A. Austill and Shelley D. How-ton of Austill, Lewis & Simms, P.C., Birmingham, for appellant.
    Ross Diamond III of Diamond, Hasser & Frost, Mobile, for appellee.
   PITTMAN, Judge.

In June 2000, Curtis Dale Holton (“the employee”) sued Mastec North America, Inc. (“the employer”), for workers’ compensation benefits. The employee alleged that he was injured in the line and scope of his employment and that he had suffered a permanent total disability. Following a bench trial, the trial court found that the employee was injured in the line and scope of his employment and that the employee has a permanent total disability. The employer filed a postjudgment motion, which the trial court granted as to the calculation of the benefits owed the employee. The employer appeals.

The employee was a member of a work crew boring a path for telecommunications conduit under the Styx River in Baldwin County. The accident occurred on October 14, 1999. The boring machine broke down at approximately 4:30 p.m. that day. Parker Johnson, the boring machine foreman, testified that after the machine broke down, he discovered that some of the crew members had walked down the river bank and found a rope swing and were swinging across the river and jumping into the river. Johnson testified that the crew was finished with its work when the machine broke.

The employee was the second person to swing. Jason Killian, who swung across the river before the employee attempted to swing across, testified that the employee fell off the swing and fell headfirst into about two feet of water. Some crew members moved the employee’s head from under the water and telephoned emergency 911. The employee was flown to Baptist Hospital in Pensacola, Florida. The accident left the employee paralyzed from the waist down.

The employee’s injury, in order to be compensable, must have been caused by an accident “arising out of’ and “in the course of’ his employment. Section 25-5-51, Ala.Code 1975. The “arising out of’ requirement “involves the idea of a causal relationship between the employment and the injury.” Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So.2d 725, 726 (Ala.Civ.App.1978). The “in the course of’ requirement “refers to time, place and circumstance.” Id. See also Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993). The employer argues that the employee’s actions were so significant a deviation from his employment that the employee’s accident (falling from a rope swing into the river) did not “arise out of’ nor “in the course of’ his employment.

“When an employee deliberately and substantially steps outside of his employment, this conduct constitutes a substantial deviation from his employment. If an employee is injured while substantially deviating from his employment, the employee’s injury is not a compensa-ble injury because the injury does not arise out of and in the course of his employment. It is necessary to determine whether the employee’s activity so deviated from his [employment] that he went beyond his course of employment by leaving his business purpose to carry out a personal purpose or objective.”

Kewish v. Alabama Home Builders Self Insurers Fund, 664 So.2d 917, 922 (Ala.Civ.App.1995) (citations omitted).

The employee contends that his accident did “arise out of’ and occurred “in the course of’ his employment. He contends that his taking time to cool down by attempting to swing into the river was an action “necessary to the life, comfort, and convenience of the employee while at work.” Gold Kist, Inc. v. Jones, 537 So.2d 39, 41 (Ala.Civ.App.1988). The Gold Kist court also stated “that the method or manner of seeking personal comfort may be unreasonably dangerous or unconventional and in that instance may not be considered incidental to the work normally within the course of the employment.” Id.

We conclude that the employee’s action of attempting to jump into the river from a rope swing is an “unreasonably dangerous or unconventional” method of cooling off or taking a work break. Therefore, we conclude that the trial court erred by finding that the employee’s accident “arose out of’ and “in the course of’ his employment.

The employee relies heavily on this court’s opinion in LFI Pierce, Inc. v. Carter, 829 So.2d 158 (Ala.Civ.App.2001). The author of this opinion dissented from the majority holding; however, we conclude that LFI Pierce is distinguishable from the facts of this case. We quote the facts set out in LFI Pierce:

“On the day of the accident, [the employee] and others were working to remove storm debris from a steep slope on a residential lot on Lake Tuscaloosa. Dennis Robertson, a Treesmith employee, supervised and directed all work on the job site....
“[The employee and others] began removing the debris from the lot at approximately 7:30 a.m. on the date [of the accident]. The lot on which [the employee was] working contained 160 steps that were built into the slope leading from the house down to the lake. [The employee] was required to carry heavy trees and other debris to the top of the slope. The temperature on that date ranged from 98 to 100 F., with a high level of humidity. Because of the extreme and oppressive conditions, the crew was given a 15-minute break every 45 minutes.
“[The employee] and the crew took a break at approximately 3:00 p.m.; [the employee and the others] had at least one to two more hours of work remaining at that time. At the beginning of the break, Robertson ([the employee’s] supervisor) and others walked to the pier at the bottom of the slope and jumped into the lake to cool off.... [The employee] followed the other employees into the lake; he drowned.”

829 So.2d at 159. The court concluded:

“[The employee] did not substantially deviate from his employment by jumping into the lake to cool off.... [The employee’s] entering the lake did have a causal connection with his employment, and it falls within those incidental acts described in Gold Kist [Inc., v. Jones, 537 So.2d 39 (Ala.Civ.App.1988) ].”

829 So.2d at 160.

We conclude that the employee’s action of attempting to jump from a rope swing into the river is an act “unreasonably dangerous or unconventional,” and is not an “incidental act” to his employment. Important factual distinctions between this case and LFI Pierce exist. First, the accident in this case did not occur during a scheduled break. The accident in this case occurred near the end of the workday after machinery necessary for the -work broke down; the accident in LFI Pierce occurred during the workday during a pre-sched-uled. break. Second, Johnson, the foreman, did not testify, as did the supervisor in LFI Pierce, that jumping into the lake was a reasonable method to cool off. Finally, we conclude that the method of “cooling off,” if it was for that purpose, in this case, was “unreasonably dangerous or unconventional.” See Gold Kist, supra. Attempting to jump into an unfamiliar river from a rope swing was not “incidental” to this employee’s employment. Id. Therefore, we conclude that the employee’s accident did not “arise out of’ and “in the course of’ his employment. The trial court erred by finding otherwise and by awarding workers’ compensation benefits to the employee. We reverse the trial court’s judgment and remand the cause for entry of a judgment consistent with this opinion.

REVERSED AND .REMANDED WITH INSTRUCTIONS.

CRAWLEY and THOMPSON, JJ., concur.

YATES, P.J., concur^ in the result.

      . The author of this opinion concurred with a dissent written by Judge Thompson. See LFI Pierce, 829 So.2d 158 at 162-163 (Ala.2001) (Thompson, J., dissenting).

      . The employee was a resident of Louisiana and was working in Alabama at the time of the accident.