text:
    HUNTSVILLE UTILITIES et al. v. CONSOLIDATED CONSTRUCTION COMPANY.
    1020195.
    Supreme Court of Alabama.
    Sept. 5, 2003.
    E. Cutter Hughes, H. Harold Stephens, and Daniel Kaufmann of Bradley Arant Rose & White, LLP, Huntsville, for appellants.
    L. Graves Stiff III and Brian A. Dodd of Starnes & Atchison, LLP, Birmingham, for appellee.
   On Application for Rehearing

STUART, Justice.

The opinion of May 23, 2003, is withdrawn and the following is substituted therefor.

Huntsville Utilities, John Thomas, and Jimmy Stanley appeal from the denial of their motion to compel Consolidated Construction Company (“CCC”) to arbitrate its claims against them. We reverse and remand.

Facts

On October 19, 1999, CCC and Huntsville Utilities entered into an agreement entitled “Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum.” Pursuant to that agreement, CCC was to serve as the general contractor for renovations totaling $7,722,200 to the offices of Huntsville Utilities. Subparagraph 4.6.1 of that agreement provided:

“4.6.1. Any claim arising out of or related to the Contract, except to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.”

Huntsville Utilities had hired J.H. Partners Architecture and Interiors, P.C. (“J.H. Partners”), as the architect for the renovations; J.H. Partners drafted the plans and specifications for the renovation project. David Ely of J.H. Partners was named as the architect of record; Barry Broom, also an employee of J.H. Partners, was responsible for contract administration on the renovation project.

CCC, a corporation organized under the laws of Delaware, subcontracted the roofing work to Andrew W. Tjelmeland d/b/a Stahl Sheet Metal (“Stahl”), a Tennessee sole proprietorship doing business in Alabama. Stahl subcontracted the roofing work to Phil Morgan Roofing Company, an Alabama sole proprietorship. CCC also hired a Florida firm, Conway Enterprises (“Conway”), to perform waterproofing at the project site. According to the record, all other subcontractors retained by CCC were based in Alabama.

According to CCC, it encountered substantial construction problems, design errors, and poor site conditions, all of which required CCC to perform substantial additional work and for which CCC says it is entitled to additional compensation. According to CCC, those problems — the design and specification errors and the site conditions — also delayed completion of the project. CCC contended that J.H. Partners failed to respond to requests for information, refused to work with CCC, interfered with CCC’s performance of its contract, and otherwise performed in an unprofessional manner.

In November 2001, CCC sued J.H. Partners, Jones & Herrin Architect/Interior Design, David Ely, and Barry Broom in the Madison Circuit Court, alleging professional negligence and breach of contract. In January 2002, CCC amended its complaint to add as defendants Stahl (the original roofing subcontractor); Stahl’s insurer, Bituminous Casualty Corporation (“BCC”); and Phil Morgan Roofing Company (Stahl’s Alabama sub-subcontractor). Stahl is a Tennessee resident who was doing business in Alabama. BCC is a corporation organized under the laws of Illinois with its principal place of business in Illinois. Phil Morgan is an Alabama resident. Against Stahl and Phil Morgan Roofing Company, CCC alleged negligence and breach of express warranties. Against BCC, CCC alleged breach of an insurance contract.

In May 2002, CCC added Huntsville Utilities and two of its employees, John Thomas and Jimmy Stanley, as defendants (hereinafter referred to collectively as “the Huntsville Utilities defendants”). Against Huntsville Utilities, CCC asserted claims alleging breach of the construction contract, breach of warranty, and vicarious liability for the architect’s negligence pursuant to a theory of respondeat superi- or. CCC also alleged unjustified and unexcused interference by Thomas and Stanley, as employees and agents of Huntsville Utilities, with CCC’s contractual performance. A few months later, the claims asserted against all of the out-of-state defendants were settled or dismissed with prejudice.

On June 19, 2002, the Huntsville Utilities defendants filed a motion to dismiss, to compel arbitration, and/or for sanctions (hereinafter referred to as the “motion to compel arbitration”), relying upon the arbitration provision contained in the agreement between Huntsville Utilities and CCC.

On July 29, 2002, CCC filed another complaint. In that complaint, CCC clarified its allegations against J.H. Partners, Huntsville Utilities, Thomas, and Stanley. That complaint alleged negligence, breach of warranty, fraud, suppression, defamation, and tortious interference with CCC’s contractual relationship with Huntsville Utilities and with CCC’s subcontracts. On August 14, 2002, CCC again amended its complaint to allege that Huntsville Utilities had violated § 8-29-1, Ala.Code 1975, known as Alabama’s Prompt Pay Act.

On September 6, 2002, the Huntsville Utilities defendants filed the affidavits of Thomas and Stanley and various invoices from out-of-state suppliers in support of their motion to compel arbitration. On October 1, 2002, the trial court denied the motion to compel arbitration, relying upon the five factors adopted by this Court in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000).

The Huntsville Utilities defendants appeal from the denial of their motion to compel arbitration, raising the following issues:

“A. Whether this Court [in Sisters of the Visitation] impermissibly limited the United States Supreme Court’s broad interpretation of Section 2 of the Federal Arbitration Act by applying the [United States v.] Lopez [, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995),] ‘substantial effects’ standard to individual transactions involving interstate commerce?
“B. Whether the circuit court erred in holding that a renovation project involving a contractor incorporated in Delaware, three out-of-state subcontractors, two out-of-state insurers, and the purchase and shipment of materials from twenty different states did not substantially affect interstate commerce?”

Standard of Review

This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Corp. v. Silvernell, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).

Discussion

“A. Whether this Court [in Sisters of the Visitation] impermissibly limited the United States Supreme Court’s broad interpretation of Section 2 of the Federal Arbitration Act by applying the [United States v.] Lopez [, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995),] ‘substantial effects’ standard to individual transactions involving interstate commerce?”

The Huntsville Utilities defendants first challenge the denial of their motion to compel arbitration by arguing that the “substantial-effect-on-interstate-commerce” standard, applied by the trial court and adopted by this Court in Sisters of the Visitation, supra, violates binding federal precedent. The Huntsville Utilities defendants argue that the standard previously applied by this Court to trigger application of § 2 of the Federal Arbitration Act (“the FAA”) places an impermissibly high burden on parties seeking to enforce arbitration agreements.

In light of the recent ruling from the United States Supreme Court, we must agree. Since 2000, this Court has applied the five-factor test adopted in Sisters of the Visitation to determine whether a transaction substantially affected interstate commerce so as to trigger the application of the FAA. Since the adoption of that test, we have reviewed individual transactions in light of the following factors to determine whether interstate commerce was substantially affected as a result of the transaction: (1) whether the citizenship of the parties or the place for the performance of the contract established a substantial effect on interstate commerce; (2) where the tools and equipment used in connection with the transaction originated and whether they moved in interstate commerce; (3) whether the allocation of the cost of the services and materials required for the particular project established a substantial effect on interstate commerce; (4) whether the object of the contract was capable of subsequently moving across state lines and was therefore capable of having a subsequent impact on interstate commerce; and (5) the degree of separability between this transaction and other transactions or contracts that might substantially affect interstate commerce.

However, in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), the United States Supreme Court reversed our judgment in Alafabco, Inc. v. Citizens Bank, 872 So.2d 798 (Ala.2002), and recognized that the “substantial effect” test adopted in Sisters of the Visitation “gave inadequate breadth” to the language of the FAA. The United States Supreme Court stated:

“We have interpreted the term ‘involving commerce’ in the FAA as the functional equivalent of the more familiar term ‘affecting commerce’ — -‘words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Allied-Bruce Terminix Cos. [v. Dobson], 513 U.S., [265] at 273-274, 115 S.Ct. 834 [(1995)]. Because the statute provides for the ‘enforcement of arbitration agreements within the full reach of the Commerce Clause,’ Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’' — -that is, ‘within the flow of interstate commerce,’ Allied-Bruce Terminix Cos., supra, at 273, 115 S.Ct. 834 (internal quotation marks, citation, and emphasis omitted).
“The Supreme Court of Alabama was therefore misguided in its search for evidence that a ‘portion of the restructured debt was actually attributable to interstate transactions’ or that the loans ‘originated out-of-state’ or that ‘the restructured debt was inseparable from any out-of-state projects.’ 872 So.2d at 805. Such evidence might be required if the FAA were restricted to transactions actually ‘ “in commerce,” ’ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-196, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974), but, as we have explained, that is not the limit of the FAA’s reach.
“Nor is application of the FAA defeated because the individual debt-restructuring transactions, taken alone, did not have a ‘substantial effect on interstate commerce.’ 872 So.2d at 808. Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). See also Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U.S. 183, 196-197, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-38, 57 S.Ct. 615, 81 L.Ed. 893 (1937).”

Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040.

Thus, in light of the United States Supreme Court’s decision in Alafabco, we no longer apply the substantial-impact-on-interstate-commerce test adopted in Sisters of the Visitation, supra. As the United States Supreme Court stated, the FAA is triggered even in “‘individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent a general practice ... subject to federal control.” Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040. Therefore, a “‘party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract involves a transaction affecting interstate commerce.’ ” Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001) (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)).

CCC does not challenge the existence of a contract calling for arbitration. Therefore, we need determine only whether this transaction affected interstate commerce or if the economic activity in question represents a general practice subject to federal control. If either of these questions can be answered affirmatively, the FAA is triggered. Alafabco, supra.

In this case, Huntsville Utilities and CCC agreed, pursuant to Article 3.4.1.1 of the Supplementary General Conditions of the agreement, that Huntsville Utilities would be responsible for acquiring all of the materials to be used for the renovation project, so that Huntsville Utilities could benefit from its tax-exempt status as a municipal entity. Huntsville Utilities acquired materials for this project from vendors in Alabama, Arkansas, California, Florida, Georgia, Illinois, Indiana, Kansas, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas. The Huntsville Utilities defendants submitted some 499 invoices to document this fact. Huntsville Utilities acquired the materials specifically for the performance of the renovation project.

There is little question that interstate commerce was affected as a result of this transaction. Numerous out-of-state vendors supplied the materials for this project; Huntsville Utilities paid out-of-state vendors for the materials; and the materials were necessarily shipped through the channels of interstate commerce. Therefore, this transaction involved interstate commerce and, under Alafabco, supra, this is sufficient to trigger the FAA.

The parties’ agreement to arbitrate is enforceable. The trial court erred in denying the motion to compel arbitration filed by the Huntsville Utilities defendants.

Conclusion

The Huntsville Utilities defendants have established the existence of a contract calling for arbitration and have established that the contract involves a transaction affecting interstate commerce. Therefore, they have met their burden of proof on their motion, to compel arbitration. Accordingly, the trial court erred in denying the motion to compel arbitration. We reverse its order denying the motion, and we remand the case for further proceedings consistent with this opinion.

APPLICATION GRANTED; OPINION OF MAY 23, 2003, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . This agreement was a form contract drafted by the American Institute of Architects.

      . The roofing work apparently did not go well; CCC subsequently hired Denard & Moore, a Tennessee company, to repair the roof. The roofing work by Phil Morgan Roofing Company was the basis of a breach-of-warranty action by CCC.

      . J.H. Partners had formerly been known as Jones & Herrin Architecplnterior Design.

      . CCC was a named additional insured on the commercial general liability policy issued by BCC to Stahl. CCC sought coverage from BCC for the cost of removing and replacing the defective roof; BCC denied the claim.

      . For this reason, we need not reach the second issue raised by the Huntsville Utilities defendants.


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    C.T. HUDSON v. OUTLET RENTAL CAR SALES, INC.
    1020231.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      Albert Adams, Jr., and Russell L. Irby of Law Offices of Russell L. Irby, Eufaula, for appellant.
    Peter A. Mclnish and William W. Nichols of Lee & Mclnish Attorney, P.C., Do-than, for appellee.
   HOUSTON, Justice.

This arbitration case involves allegations of fraud in the factum and uncon-scionability. C.T. Hudson sued Outlet Rental Car Sales, Inc. (“Outlet”), and others, asserting various claims stemming from Hudson’s acquisition of a used truck from Outlet. The trial court granted Outlet’s motion to compel arbitration, and this appeal followed. We reverse and remand.

I. Facts

The crux of this action is Hudson’s allegation that he wanted to purchase a truck from Outlet but instead was defrauded into leasing a truck. Hudson claims that he visited Outlet’s place of business, selected a used pickup truck, and began negotiating with an Outlet representative, Rickie With-row, regarding the terms by which Hudson would trade in his vehicle and purchase the truck. Hudson claims that he specifically informed Withrow that he wanted to purchase, rather than lease, the truck and that he wanted to own the truck “free and clear” after making the necessary payments.

According to Hudson, when Withrow asked him to sign some documents, Hudson informed Withrow that he could not read very well. In his affidavit, Hudson describes his conversation with Withrow as follows:

“I picked out a used 2002 Dodge Dakota pickup truck and told him that the only way I would trade was if ‘they could pay off my 1999 truck and finance the loan through the bank for no more than 5 years and keep my payments below $300.00 per month.’ If they could meet these requirements, I would trade. I informed him that at the end of 5 years, I wanted to own the vehicle ‘free and clear.’ He replied that you will. After they checked my credit, Mr. Withrow asked me to sign several documents. I informed him that ‘I could not read anything good enough to get anything out of it.’ I only attended school a few years. Mr. Withrow told me not to worry, that the documents were just as we discussed and the vehicle would be paid for in five years. I write very slow and while I was signing the papers, Mr. Withrow told me that I could just initial the documents because it would be quicker.”

Hudson claims that the day after he signed the documents (hereinafter referred to collectively as the “lease contract”) he went to his insurance agent’s office and was informed that his insurance would increase because he was leasing the truck. Hudson immediately returned to Outlet’s place of business, but, according to Hudson, Withrow stated that the lease contract was already signed and asked Hudson to leave the premises.

Hudson sued Outlet asserting various claims (including fraud) stemming from Hudson’s acquisition of the vehicle from Outlet through the lease contract. Outlet answered the complaint and filed a motion to stay the action and to compel arbitration based on an arbitration agreement in the lease contract. Hudson opposed this motion. Following a hearing, the trial court granted Outlet’s motion to compel arbitration, and this appeal followed.

II. Standard of Review

We review de novo a trial court’s ruling on a motion to compel arbitration. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999). Initially, the party seeking to compel arbitration must prove 1) the existence of a contract calling for arbitration, and 2) that the contract “is ‘a contract evidencing a transaction involving commerce’ within the meaning of the Federal Arbitration Act (FAA).” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 53, 123 S.Ct. 2037, 2038, 156 L.Ed.2d 46 (2003) (quoting 9 U.S.C. § 2). “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-mov-ant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995).

III. Analysis

A. Fraud in the Factum

Hudson argues that Outlet committed fraud in the factum in that he was deceived as to the true nature of what he signed: he actually signed a lease contract when he thought he was signing a purchase contract. See Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 783 n. 6 (Ala.2000) (discussing the difference between fraud in the inducement and fraud in the factum and noting that “to constitute fraud in the fac-tum ... the misrepresentation must go to the essential nature or existence of the contract itself, for example, a misrepresentation that an instrument is a promissory note when in fact it is a mortgage”). Outlet appears to admit that Hudson’s fraud claim alleges fraud in the factum; however, Outlet contends that all of Hudson’s claims, including his fraud-in-the-factum claim, should be resolved by an arbitrator. We disagree.

There is no question that Hudson’s claim alleging fraud in the factum is directed at the entire contract rather than to just the arbitration agreement. Typically, challenges directed at a contract that contains an arbitration agreement, and not at the arbitration agreement itself, are for an arbitrator to resolve. Mason v. Acceptance Loan Co., 850 So.2d 289, 294 (Ala.2002); Investment Mgmt. & Research, Inc. v. Hamilton, 727 So.2d 71, 78 (Ala.1999) (relying on Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). However, “a challenge to the very existence of the contract ... is an issue for a court, not an arbitrator, to decide.” Mason, 850 So.2d at 295; J.C. Bradford & Co. v. Vick, 837 So.2d 271, 273 (Ala.2002) (“When a party is seeking to enforce an arbitration clause, the question whether a valid contract exists between the parties is to be decided by the trial court, not an arbitrator.”). In J.C. Bradford & Co. we explained this distinction:

“In Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the United States Supreme Court held that a fraud-in-the-inducement challenge to a contract that contained an arbitration clause should be decided by an arbitrator, and not by a court. However, we follow the reasoning of other courts that limit the holding in Prima Paint Corp. to ‘voidable’ contracts (e.g., a contract where a party is induced through fraud or a contract where a party is an infant). However, where a party challenges the very existence of a contract, that dispute must be decided by a court. See Shearson Lehman Bros. v. Crisp, 646 So.2d 613 (Ala.1994).”

837 So.2d at 237 n. 2.

Under these principles, it is clear that Hudson’s fraud-in-the-factum claim is to be resolved by the trial court. Indeed, we have recently recognized that fraud-in-the-factum claims test the “very existence of a contract” and are not subject to arbitration. See Anderson v. Ashby, 873 So.2d 168 (Ala.2003)(discussing Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, supra, and Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454 (Ala.2000)).

Therefore, the trial court erred in submitting Hudson’s fraud-in-the-factum claim to arbitration. In order to determine whether the lease contract “exists” as between the parties, the trial court must resolve this claim. If, upon consideration of this claim, the trial court resolves the fraud-in-the-factum claim against Hudson and finds that the lease contract did in fact “exist” between the parties, then the court may submit the remaining claims to arbitration if such action is appropriate.

B. Unconscionability

Hudson also contends that the arbitration agreement contained in the lease contract is unconscionable. However, we cannot reach this issue. As stated above, it is for the trial court to determine whether the lease contract “exists,” and until that question is resolved we do not know if there exists an arbitration agreement between the parties to be examined as to whether it is unconscionable.

IV. Conclusion

For the reasons stated above, we reverse the trial court’s order granting Outlet’s motion to compel arbitration, and we remand this case to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . This case was originally assigned to another Justice but was reassigned to Justice Houston on June 9, 2003.

      . The parties’ briefs list the following as ap-pellees: Rickie L. Withrow, Mark Rhode, and Regions Bank, Inc. However, Hudson’s notice of appeal listed only Outlet Rental Car Sales, Inc., as an appellee.

      . Hudson submitted evidence indicating that he reads at a second-grade level and that he is in the bottom 1% of the general population his age with regard to reading, spelling, and arithmetic. Outlet disputes the claim that Hudson was incapable of understanding the documents he signed.

      . However, Outlet argues that Hudson has not demonstrated substantial evidence of fraud in the factum.


author: WOODALL, Justice. JOHNSTONE, Justice,

text:
    Ex parte TRONCALLI CHRYSLER PLYMOUTH DODGE, INC. (In re David J. Case v. Alexander Dodge Chrysler Plymouth, Inc., et al.).
    1021135.
    Supreme Court of Alabama.
    Sept. 12, 2003.

      Nicholas B. Roth and Heather L. Neck-laus of Eyster, Key, Tubb, Weaver & Roth, LLP, Decatur, for petitioner.
    Charles E. Robinson, Jr., of The Robinson Law Firm, P.C., Ashville, for respondent.
   WOODALL, Justice.

Troncalli Chrysler Plymouth Dodge, Inc. (“Troncalli”), petitions this Court for a writ of mandamus directing the trial court (1) to vacate its order denying Troncalli’s motion to dismiss the claims of David J. Case against it for lack of personal jurisdiction, and (2) to enter an order dismissing the complaint. We grant the petition.

On August 20, 2002, Case sued Troncalli and Alexander Dodge Chrysler Plymouth, Inc.; the complaint contained the following factual allegations:

“COMPLAINT
“STATEMENT OF THE PARTIES
“1. Plaintiff, David J. Case, is a resident citizen of St. Clair County, Alabama.
“2. Defendant, Alexander Dodge Chrysler Plymouth, Inc. (hereinafter referred to as ‘Alexander Dodge’), is a domestic corporation doing business in Marshall County, Alabama.
“3. Defendant, [Troncalli], is a foreign corporation doing business in Cumming, Georgia.
“STATEMENT OF FACTS
“On or about June 29, 2001, [Case] went to Defendant Alexander Dodge to purchase a truck. Although Defendant Alexander Dodge did not have the particular truck [Case] wanted to purchase on their lot, they did locate such vehicle at Defendant [Troncalli] in Cumming, GA. [Case] paid Defendant Alexander Dodge for a 2001 Dodge Dakota pick-up truck. They, in turn, paid [Troncalli] for said vehicle. [Case] then went to Defendant [Tronealli’s] place of business to pick up the vehicle.
“The 2001 Dodge Dakota which [Case] purchased was represented to him as being brand new. The vehicle had only nineteen (19) miles on the odometer when [Case] picked it up. However, sometime after [Case] purchased the truck the power window on the driver’s side ceased to function properly. [Case] took the truck to Jim Burke Dodge in Birmingham, AL, to get the power window inspected. Upon inspecting the vehicle, the service manager at Jim Burke Dodge pointed out to [Case] that the paint on the driver’s door of his vehicle did not match the paint on the remainder of the vehicle. [Case was asked] whether he had wrecked the vehicle. Naturally, this was the first knowledge [Case] had that his vehicle may not have been brand new when he purchased it.
“The service manager suggested that [Case] take his truck to a body shop for further inspection. Therefore, [Case] took the vehicle to Daffron’s Body Shop in Pell City, AL. A technician at Daf-fron’s Body Shop confirmed that the vehicle’s driver door had sustained injury. [Case] and/or [Case’s] insurance provider were forced to pay for having the damaged door and window repaired at Daffron’s Body Shop.”

The claims against the defendants included (1) “conspiracy to commit fraud,” (2) bad faith, (3) misrepresentation, (4) deceit, and (5) breach of contract.

Troncalli did not answer the complaint. Instead, on September 19, 2002, it filed a “Special Appearance for the Purpose of Alleging Lack of Personal Jurisdiction.” Troncalli alleged that it “had no contact with the State of Alabama in this transaction,” and moved to dismiss the complaint on that ground. Troncalli subsequently supported the motion with a brief and the affidavit of Ryan Troncalli, its general manager. The affidavit stated, in pertinent part:

“3. [Troncalli] is incorporated in the State of Georgia, with its principal place of business in Cumming, Georgia.
“4. In or about June of 2001, [Tron-calli] was contacted by [Alexander Dodge], a dealership located in Albert-ville, Alabama, regarding a dealer transfer purchase of a 2001 Dodge Dakota truck.
“5. David Case, the Plaintiff in the above-styled case, had approached Alexander Dodge regarding the purchase of a particular 2001 Dodge Dakota truck, but Alexander Dodge did not have that particular vehicle on its lot at the time. Alexander Dodge located said vehicle at [Troncalli] through the use of a computer database locator, which is maintained by Chrysler and includes a list of all Chrysler vehicles which are delivered to its various dealerships.
“6. On or about the 29th day of June, 2001, [Case] picked up the vehicle made the basis of this suit at [Troncalli] in Gumming, Georgia.
“7. At the time of delivery, [Case] delivered a check ... payable to [Tron-calli] by Alexander Dodge in consideration for the dealer transfer. [Case] also signed the Odometer Statement ... on behalf of Alexander Dodge and accepted the Bill of Sale and the Manufacturer’s Certificate of Origin on behalf of Alexander Dodge.... As the Manufacturer’s Certificate of Origin indicates, the vehicle was transferred from [Tron-calli] directly to Alexander Dodge.
“8. In the dealer transfer described above, the vehicle made the basis of this suit was sold wholesale directly to Alexander Dodge, and Alexander Dodge then made a retail sale of the same vehicle to [Case].
“9. There were no negotiations, whether by telephone, correspondence, email, or other communication between Troncalli and [Case]. Further, during the dealer transfer, there were no telephone calls, correspondence, email, or other communications made by or on behalf of [Troncalli] to the State of Alabama, whether to [Case], Alexander Dodge, or any other parties in connection with the dealer transfer.
“10. The State of Alabama is outside of the market area of [Troncalli]. [Troncalli] does not conduct business, advertise, market, or solicit customers in or from the State of Alabama, nor does it ship vehicles into the State of Alabama or otherwise conduct business or operate within the State of Alabama.
“11. All paperwork and money involved in the above-described dealer transfer, as well as delivery of the vehicle itself, occurred within the State of Georgia.”

Case filed-'a response to'the motion to dismiss and an “Alternative Motion to Continue to Allow the Plaintiff to Conduct Limited Discovery.” In the latter motion, Case stated:

“[Case] is satisfied that this court has personal jurisdiction over Defendant Troncalli as a matter of law based on its ‘specific contacts’ with Alabama. However, if this court should disagree and rule that ‘specific [jurisdiction’ is] lacking, it should allow a limited discovery period, to allow [Case] to probe Defendant Troncalli’s [contacts for ‘general jurisdiction’ in] Alabama....
“[Case] could not possibly produce this information without discovery. In other words, this is. a situation where Defendant Troncalli holds all of the cards. Although it filed its motion to dismiss on September 16, 2002, it has only recently filed affidavit testimony by its general manager on the issue of its general [jurisdiction] contacts with Alabama. This testimony has not been subject to cross-examination and, because the information sought lies solely in the hands of Defendant Troncalli, the only way for [Case to] probe this information is from written discovery and depositions.”

(Emphasis added.)

On March 3, 2003, the trial court entered the following order:

“Motion to dismiss by Defendant [Tron-calli] denied. [Troncalli] participates in a network which offers vehicles for sale to persons in Alabama. [Troncalli] knew the vehicles listed on the network may be purchased by residents of Alabama who would otherwise have no reason to visit the Defendant Troncalli’s location in Georgia.”

Tronealli then filed this petition, asking this Court to direct the trial court to vacate its order denying Troncalli’s motion to dismiss the complaint and to direct the trial court to grant its motion to dismiss for lack of personal jurisdiction.

The following principles are well established:

“[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction. See Ex parte McInnis, 820 So.2d 795 (Ala.2001); Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993). ‘ “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” ’ Ex parte Lagrone, 839 So.2d 620, 623 (Ala.2002) (quoting Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002)). Moreover, ‘[t]he plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.’ Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002).”

Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003).

Jurisdiction is obtained over out-of-state defendants pursuant to the “long-arm” rule, Ala. R. Civ. P. 4.2(a)(2)(A)-(I). Recently, we explained:

“ ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it ‘ “should reasonably anticipate being haled into court [here].” ’ Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). ‘General jurisdiction applies where a defendant’s activities in the forum state are “substantial” or “continuous and systematic,” regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.’ Id.
“But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of ‘ “an action of the defendant [that was] purposefully directed toward the forum State.” Elliott[ v. Van Kleef], 830 So.2d [726] at 731 [(Ala.2002)] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). ‘This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of “ ‘the unilateral activity of another person or a third person.’ ” ’ Elliott, 830 So.2d at 731 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).”

Ex parte Dill, 866 So.2d at 525.

Within the context of these principles, the dispositive questions in this case are (1) whether Tronealli has contacts with Alabama sufficient to subject it to specific jurisdiction, and, if not, (2) whether Case is entitled to discovery for the purpose of seeking a basis for general jurisdiction.

I. Specific Jurisdiction

“When specific jurisdiction is the basis for adjudication of claims against an out-of-state defendant, due process requires ‘a clear, firm nexus between the acts of the defendant and the consequences complained of in order to establish the necessary contacts.’ ” Ex parte Dill, 866 So.2d at 531-532 (quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986)). Case contends that specific jurisdiction may properly be exercised pursuant to Rule 4.2(a)(2)(A)-(E) and (I).

Specific jurisdiction “is authorized by Rule 4.2(a)(2)(I), the ‘catch-all provision’ of Alabama’s long-arm rule. See Jerome Hoffman & Sandra Guin, Alabama Civil Procedure § 2.48 (1990).” Ex parte Dill, 866 So.2d at 531. Rule 4.2(a)(2)(I) provides:

“A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(I) otherwise [than the circumstances listed in A-H] having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.”

“Subsection (I) ‘extends the jurisdiction of this state’s courts to the permissible limits of due process.’ Martin v. Robbins, 628 So.2d 614, 617 (Ala.1993).” Ex parte Dill, 866 So.2d at 531. If the exercise of personal jurisdiction would offend the due-process requirements of Rule 4.2(a)(2)(I), it may not be exercised under Rule 4.2(a)(2)(A)-(E). Ex parte Dill, 866 So.2d at 525. Therefore, we first examine whether Troncalli’s nexus with Alabama satisfies subdivision (I).

Case concedes, as he must, that Troncal-li’s jurisdictional objection “might be correct if [Case] simply drove to [Troncalli’s] Georgia location to purchase the vehicle without being induced to do so.” Case’s brief, at 19. This is so, he argues, because personal jurisdiction, which purports to be based solely on an isolated sale by an out-of-state defendant to the in-state plaintiff, is generally unsustainable. See Network Professionals, Inc. v. Network Int’l, Ltd., 146 F.R.D. 179, 181 n. 1 (D.Minn.1993) (“The due process analysis focuses on a defendant’s contacts with the forum, not its contacts with the plaintiff; thus, an isolated sale will not support jurisdiction, even if the cause of action arises from the sale.”); see also Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d 40 (8th Cir.1988); Chung v. NANA Dev. Corp. 783 F.2d 1124, 1126 (4th Cir.1986) (a sale comprising no more than an “ ‘isolated’ or ‘attenuated’ single transaction ... has always been deemed inadequate to satisfy due process”); Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir.1978) (“four sporadic and isolated sales” did not support personal jurisdiction); Butler v. Beer Across America, 83 F.Supp.2d 1261 (N.D.Ala.2000); accord Stuart v. Spademan, 772 F.2d 1185 (5th Cir.1985); Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973); Douglas v. Modern Aero, Inc., 954 F.Supp. 1206 (N.D.Ohio 1997); Highway Auto Sales, Inc. v. Auto-Konig of Scottsdale, Inc., 943 F.Supp. 825 (N.D.Ohio 1996).

Of particular relevance is whether the plaintiff initiated the sale or contact. See Madison Consulting Group v. South Carolina, 752 F.2d 1193 (7th Cir.1985); CBP Res., Inc. v. Ingredient Res. Corp., 954 F.Supp. 1106 (M.D.N.C.1996); Regent Lighting Corp. v. American Lighting Concept, Inc., 25 F.Supp.2d 705 (M.D.N.C.1997) (“the contacts to be considered for purposes of personal jurisdiction are those actually generated by Defendants, not those created by the unilateral acts of Plaintiff’); Wells American Corp. v. Sunshine Electronics, 717 F.Supp. 1121, 1123 (D.S.C.1989); American Stair Corp. v. Renata Constr. Co., 625 F.Supp. 136 (N.D.Ill.1985).

Thus, something more than an isolated contact initiated by an in-state plaintiff is required to satisfy the “purposeful-availment” prong of the due-process analysis. “Something more” might involve “pri- or negotiations and contemplated future consequences, along with ... the parties’ actual course of dealing.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 463, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (emphasis added). “Something more” might be found “where the defendant ‘deliberately’ has engaged in significant activities within [Alabama] ... or has created ‘continuing obligations ’ between himself and residents of [Alabama].” 471 U.S. at 475-76, 105 S.Ct. 2174 (emphasis added).

Case argues that the “something more” in this action is the use of the “computer database locator,” which, Case contends, “allows other Chrysler dealers to know [Troncalli’s] inventory for the purposes of making a sale to [their] customers.” Case’s brief, at 19. Use of this database, Case contends, was an “act[] made by Troncalli purposefully directed to Alabama entities.” Id. at 20. We disagree.

This Court has stated that “ ‘evidence of mere placement of advertisements in nationally distributed paper[s] or journals does not rise to the level of purposeful contact with a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser.’ ” Elliott v. Van Kleef, 830 So.2d 726, 732 (Ala.2002) (quoting Federated Rural Elec. Ins. Co. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994)). In such a case, the advertiser “cannot be said to have purposefully directed his listing specifically at one state.” Elliott, 830 So.2d at 732.

“Internet advertising over a web site falls under the same rubric as advertising in a national publication.” Christopher E. Friel, Notes and Comments, Downloading a Defendant: Is Categorizing Internet Contacts a Departure from the Minimum Contacts Test? 4 Roger Williams U.L.Rev. 293, 308 (1998). This is especially true where the Web site is “passive,” that is, where the site serves “as little more than an electronic billboard for the posting of information.” Butler v. Beer Across America, 83 F.Supp.2d at 1268.

The database in this case is maintained by Chrysler, not Troncalli; it simply provides a means by which the manufacturer keeps track of the delivery of its vehicles. To be sure, the database may occasionally result in a sales contact for Troncalli, such as the one involved in this case. However, such a contact is not precipitated by the unilateral act of Troncalli, but by the acts of the manufacturer, other dealers, and consumers. In effect, this database is “little more than an electronic billboard for the posting of information.” Contacts resulting from its use are at least as attenuated as those resulting from an advertisement in a national publication. Thus, the use of the database does not constitute the “something more” that is required to satisfy the “purposeful-availment” prong of a proper due-process analysis.

Case also contends that the result he seeks is required by three cases in which this Court upheld the exercise of personal jurisdiction: Lowry v. Owens, 621 So.2d 1262 (Ala.1993); Ex parte Pope Chevrolet, Inc., 555 So.2d 109 (Ala.1989); and Atlanta Auto Auction, Inc. v. G & G Auto Sales, Inc., 512 So.2d 1334 (Ala.1987). Troncalli argues that these cases are distinguishable, and we agree.

The dispute in Lowry arose out of the sale in 1988 of an automobile by Richard Owens and Fitzner Pontiac-Buick-Cadillac, Inc., a Mississippi automobile dealership (hereinafter collectively referred to as “Fitzner”), to Rodney Lowry, an Alabama automobile dealer. 621 So.2d at 1263. Although the contact was initiated by Lowry by telephone from Alabama, the sale contemplated the special order of an automobile with “specific options.” Id. Fitzner sold “two or three cars,” other than the one involved in the dispute, “for resale” by Lowry’s Alabama dealership. Id. Additionally, Fitzner had sold at least 16 automobiles to other Alabama residents between 1989 and 1992. Id. at 1264. Moreover, Fitzner was soliciting business from Alabama residents through radio and television broadcasts directed into Alabama. Id. at 1267. Indeed, some of its advertisements were broadcast from a “radio station in Fayette, Alabama.” Id. at 1264. Those contacts formed a nexus with Alabama sufficient for the exercise of personal jurisdiction over Fitzner in an action filed by Lowry arising out of the sale of the automobile. Id. at 1267.

The facts in Ex parte Pope Chevrolet, the second case on which Case relies, were summarized in Wenger Tree Service v. Royal Truck & Equipment, Inc., 853 So.2d 888, 897 (Ala.2002), as follows:

“In ... [Ex parte] Pope Chevrolet, supra, the Alabama resident plaintiff sued the defendant Georgia automobile dealer in Alabama for fraud and breach of contract in selling a truck to the plaintiff in Georgia. The defendant knew the plaintiff was an Alabama resident who would use the truck in Alabama. The defendant had advertised vehicles for sale through television advertisements and newspaper advertisements respectively broadcast by an Atlanta television station, which the plaintiff received, and printed in a regional newspaper, the Atlanta Constitution, which the plaintiff received. According to the defendant, its advertisements were directed to the Atlanta market and only one-tenth of one percent of its sales were made to Alabama residents. According to the plaintiff, the defendant’s sales figures showed that the defendant sold eight or nine vehicles per year to Alabama residents, and those sales produced income in excess of $ 100,000 to the defendant.”

(Emphasis added.) Those contacts were sufficient, the Court concluded, to establish personal jurisdiction over the Georgia defendant. Ex parte Pope Chevrolet, 555 So.2d at 114.

Summarizing the third opinion on which Case relies, Wenger Tree Service said:

“In ... Atlanta Auto Auction, supra, the plaintiff Alabama automobile seller, on theories of fraud and negligence, sued the defendant Georgia automobile auction company for selling him a car with mechanical problems. The plaintiff-had purchased numerous automobiles from the defendant before the plaintiffs purchase of the bad car. The defendant knew that the plaintiff was an Alabama resident automobile seller. Over the years, the plaintiff had received through the mail brochures from the defendant offering special sales and announcing auctions to be held by the defendant in Georgia. The plaintiff also had received ‘other solicitations to buy and sell automobiles, through Atlanta Auction.’ 512 So.2d at 1335.”

853 So.2d at 898 (emphasis added). On those facts, the Court concluded that “Atlanta Auction engaged in a ‘continuous and systematic’ course of conduct in Alabama ... that [would] support a reasonable exercise of jurisdiction by the courts of Alabama.” Atlanta Auto Auction, 512 So.2d at 1336.

These three cases involved much more than isolated contacts initiated by in-state plaintiffs. More specifically, Lowry and Atlanta Auto Auction each involved prior sales and a systematic course of dealing between the in-state plaintiff and the out-of-state defendant. This case, by contrast, involves a one-time sale, and therefore no prior course of dealing, between Case and Troncalli. Also, Lowry and Ex parte Pope Chevrolet, unlike this case, involved numerous sales by the out-of-state defendants to Alabama residents, other than the plaintiffs. Case does not allege that Troncalli made sales to other Alabama residents, as was demonstrated in Lowry and Ex parie Pope Chevrolet. Unlike this case, Lowry and Ex parte Pope Chevrolet also involved substantial use of the broadcast media to target Alabama residents. Case does not allege that Troncalli targeted Alabama residents with any advertising. Thus, the defendants in those cases “engaged in significant activities within” Alabama. Burger King, 471 U.S. at 475-76, 105 S.Ct. 2174.

In connection with this transaction, the contact was made by, or on behalf of, Case. Case merely benefited from Alexander Dodge’s discovery of the location of the vehicle through the equivalent of a national publication. He then traveled to Georgia, delivered the full purchase price, and took delivery of the truck in Georgia. The only face-to-face discussions Case had with Troncalli regarding the vehicle took place in Georgia. Because Troncalli did not finance the car, it contemplated no “future consequences,” Burger King, 471 U.S. at 463, 105 S.Ct. 2174, and created no “continuing obligations” affecting Alabama. 471 U.S. at 475-76, 105 S.Ct. 2174.

Case has cited no authority in which personal jurisdiction was exercised under facts similar to those presented here. He has thus failed to show that this transaction satisfies the due-process requirement of Rule 4.2(a)(2)(I) for the exercise of specific jurisdiction. Consequently, we do not consider Case’s arguments based on Rule 4.2(a)(2)(A)-(E). Instead, we consider whether Case is entitled to discovery in an attempt to prove that Troncalli is subject to general jurisdiction.

II. Jurisdictional Discovery

Case contends that “Troncalli is not entitled to mandamus relief, because,” he insists, “the trial court could have properly denied the motion to dismiss to allow [Case] to conduct jurisdictional discovery.” Case’s brief, at 22. He argues that, because the “only basis for a finding that Troncalli does not do business in Alabama is the affidavit testimony of its general manager,” he is entitled to “probe” that testimony with “written discovery and depositions.” Id. at 25-26.

“ ‘It is well established that a ... court has the power to require a defendant to respond to discovery requests relevant to his or her motion to dismiss for lack of jurisdiction.’ ” Andersen v. Sportmart, Inc., 179 F.R.D. 236, 241 (N.D.Ind. 1998) (quoting Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 311 (S.D.Ind.1997)). “However, it is also well established that a plaintiff does not enjoy an automatic right to discovery pertaining to personal jurisdiction in every case.” Id. “[T]o be permitted jurisdictional discovery, plaintiff must at least allege facts that would support a colorable claim of jurisdiction.” Schenck v. Walt Disney Co., 742 F.Supp. 838, 840 n. 1 (S.D.N.Y.1990) (emphasis added). See also Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 (S.D.Ind.1997); Hansen v. Neumueller GmbH, 163 F.R.D. 471, 475 (D.Del.1995); Daval Steel Prods. v. M.V. Juraj Dalmatinac, 718 F.Supp. 159, 162 (S.D.N.Y.1989); Rich v. KIS California, Inc., 121 F.R.D. 254, 259 (M.D.N.C.1988).

A request for jurisdictional discovery must offer the court “more than conjecture and surmise in support of [the] jurisdictional theory.” Crist v. Republic of Turkey, 995 F.Supp. 5, 13 (D.D.C.1998). “[The] standard is quite low, but a plaintiffs discovery request will nevertheless be denied if it is only based upon ‘bare,’ ‘attenuated,’ or ‘unsupported’ assertions of personal jurisdiction, or when a plaintiffs claim appears to be ‘clearly frivolous.’ ” Andersen, 179 F.R.D. at 242.

Case has failed to satisfy this standard. The allegations of his complaint do not “support a colorable claim of [general] jurisdiction.” On the contrary, the only jurisdictional allegations are that Troncalli “is a foreign corporation doing business in Cumming, Georgia”; that Alexander Dodge discovered a vehicle in possession of Troncalli in Georgia; and that Case traveled to Georgia to take possession of the vehicle. A discovery request based on these allegations presents nothing but “conjecture and surmise” regarding the existence of general jurisdiction, and is, therefore, due to be denied.

III. Summary

In summary, the trial court erred in denying Troncalli’s motion to dismiss the complaint as to it. Troncalli’s mandamus petition is, therefore, granted. The trial court is directed (1) to vacate its order denying Troncalli’s motion to dismiss, and (2) to enter an order dismissing the complaint against Troncalli.

PETITION GRANTED; WRIT ISSUED.

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

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice,

(concurring in part and dissenting in part).

But for one exception, I concur in the holding, and its rationale, that the contacts of Troncalli with Alabama, as presented to the trial court, do not support in personam jurisdiction over Troncalli. Therefore, I concur in the judgment insofar as it requires that the denial of the motion to dismiss be vacated. My exception to the rationale for this holding is that I do not endorse certain federal cases cited by the main opinion, or the parenthetical explanations of those cases, to the extent that they may be construed as inconsistent with any of the Alabama Supreme Court cases cited in the main opinion or with any other Alabama Supreme Court cases. The federal cases I do not necessarily endorse are: Network Profl's, Inc. v. Network Int'l, Ltd., 146 F.R.D. 179, 181 n. 1 (D.Minn.1993); Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d 40 (8th Cir.1988); Chung v. NANA Dev. Corp., 783 F.2d 1124, 1126 (4th Cir.1986); Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir.1978); Butler v. Beer Across America, 83 F.Supp.2d 1261 (N.D.Ala.2000); Stuart v. Spademan, 772 F.2d 1185 (5th Cir.1985); Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973); Douglas v. Modern Aero, Inc., 954 F.Supp. 1206 (N.D.Ohio 1997); and Highway Auto Sales, Inc. v. Auto-Konig of Scottsdale, Inc., 943 F.Supp. 825 (N.D.Ohio 1996).

I respectfully dissent from foreclosing the plaintiff from conducting jurisdictional discovery. For aught that appears in the mandamus materials now before us, the trial court has not addressed the matter of jurisdictional discovery and could reasonably allow the plaintiff an opportunity to make the requisite showing. Therefore, I further respectfully dissent from directing the trial court to dismiss the complaint against Troncalli.

      . Moreover, Wenger Tree Service is, itself, distinguishable from this case on many of the same points.


author: PER CURIAM.

text:
    Mark Hamilton LANE v. William Scott STICKER.
    2011161.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.

      Mark Hamilton Lane, pro se.
    William H. Pryor, Jr., atty. gen., and Alyce S. Robertson and Fred F. Bell, asst, attys. gen., for appellee.
   PER CURIAM.

Mark Hamilton Lane, an inmate at the Limestone Correctional Facility, appeals from an order of the Limestone Circuit Court granting defendant Captain William Sticker’s motion to dismiss Lane’s petition for a declaratory judgment, which Lane brought pursuant to § 6-6-221, Ala.Code 1975.

In 1999, Captain Sticker and other officials at the Limestone Correctional Facility (“the facility”) began a program allowing inmates at the facility to view movie videos donated to the facility’s library. The program worked in the following manner: if an inmate wished for a family member or friend to donate a movie video to the facility, the inmate had to fill out a request form to obtain permission for the donation. Captain Sticker would evaluate the request and review the donated video for possible security threats and unacceptable content before approving it. If Captain Sticker approved the request, the movie was placed in the facility’s library. Inmates were permitted to check out three videos for their respective cell block each weekend. The program was used as an incentive program: if an inmate misbehaved, his cell block could be denied the opportunity to watch videos for a given weekend as punishment for the behavior.

Lane states that in November 2001 the movie videos stopped coming to his cell block. He filed a request to permit his stepfather to donate some movies, but Captain Sticker denied the request on February 25, 2002, stating on the form: “Denied — Until such time as copyright issue is determined by the courts.” Lane claims that Captain Sticker told him that he would like to continue the program but that it was possible the inmates’ viewing of the movie videos was a violation of copyright law and that the correctional facility did not desire to continue the program until it had a definitive determination that the program did not violate the law.

Subsequently, Lane filed a petition for a declaratory judgment on March 6, 2002, ostensibly to determine whether the inmates’ viewing of the movie videos constituted a violation of copyright law, 17 U.S.C. § 101 et seq. On May 3, 2002, the attorney general, on behalf of Captain Sticker, filed a motion to dismiss the petition, arguing that no justiciable controversy exists in this case. On August 6, 2002, the trial court granted the motion to dismiss through an entry on the case action summary sheet. Lane appeals the dismissal.

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala.R.Civ.P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him or] her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he or] she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted).

Lane contends that he filed his petition for a declaratory judgment “to determine the legal status of both parties if these movie videos are viewed by Appellant and other inmates.” He argues that “[o]f course there is a ‘justiciable controversy ’ in this case, and it should have been resolved under the liberal construction and application of the Declaratory Judgment Act.” Lane argues that the guiding principle in considering whether a declaratory-judgment action presents a justiciable controversy is whether a judgment would “ ‘terminate the uncertainty or controversy giving rise to the proceeding’ ” Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting § 6-6-229, Ala.Code 1975) (emphasis omitted). He contends that a judgment declaring whether the video program violates copyright law would end the controversy — i.e., it would determine whether the video viewing could resume or whether it would be stopped permanently; therefore, Lane contends, the action qualifies as a proper declaratory-judgment action. Such is the extent of Lane’s argument regarding the issue whether there is a justiciable controversy.

The Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975, states that “its purpose is to settle and to afford relief from uncertainty and insecurity with respects to rights, status, and other legal relations and is to be liberally construed and administered.” § 6-6-221. It was “designed to supply the needs of a form of action that will set controversies at rest before they lead to repudiation of obligations, the invasion of rights, and the commissions of wrongs.” Thompson v. Chilton County, 236 Ala. 142, 144, 181 So. 701, 703 (1938). Yet, even though a declaratory-judgment action is designed to be preemptive, “the parties must be damaged and seeking a remedy, not just advice.” State ex rel. Baxley v. Johnson, 293 Ala. 69, 75, 300 So.2d 106, 111 (1974). In other words, there must exist a justicia-ble controversy in order for the court to have jurisdiction to entertain the declaratory-judgment action. See, e.g., Johnson, 293 Ala. at 73, 300 So.2d at 110 (“There must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under the declaratory judgment statutes, and if there was no justiciable controversy existing when the suit was commenced the trial court had no jurisdiction”).

One element of a justiciable controversy is that the party bringing the suit must have standing. “The plaintiffs’ standing is an essential component of justi-ciability.” Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 848 So.2d 164, 166 (Ala.2002). “The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit....” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). “ ‘Standing ... turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.” ’ Kid’s Care, Inc., 843 So.2d at 166 (quoting State v. 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999), quoting in turn Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)). While Lane might have been “injured” in some sense by not being permitted to view the movie videos, his injury must be legally cognizable in order for him to have standing.

There are only two ways that Lane could have standing to sue under United States copyright laws, 17 U.S.C. § 101 et seq. First, “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Lane has not alleged that he is the legal or beneficial owner of the copyrights on any movie videos shown to the inmates. In the alternative, Lane must have “a reasonable apprehension” that he may face a copyright infringement suit if the behavior in question, in this case playing of the movies, continues. Bryan Ashley Int’l, Inc. v. Shelby Williams Indus., Inc., 932 F.Supp. 290, 292 (S.D.Fla.1996). However, if anyone were at risk of being subject to suit for the playing of the movies, it would be the facility, not Lane, because the facility instituted the program.

In short, the issue whether the facility violated copyright laws by showing movies to the inmates does not directly implicate any rights held by Lane or subject him to potential litigation. Lane has no “insecurity with respects to rights, status, [or] other legal relations” concerning the copyrights on the movie videos shown to the inmates; therefore he could not incur a legally cognizable injury as a result of the facility’s suspension of the program because of copyright concerns. Without such an injury, or the legitimate potential of it, Lane does not have standing to bring this declaratory-judgment action against Captain Sticker. Accordingly, the trial court properly dismissed Lane’s action for a declaratory judgment.

The judgment of the trial court dismissing Lane’s action is due to be affirmed. Because of our resolution of this issue, we pretermit any discussion of the other issue raised by Lane on appeal, which addresses the substance of the question whether the inmates’ viewing of the movie videos violates copyright laws.

AFFIRMED.

All the judges concur.


author: CRAWLEY, Judge.

text:
    Ron HARRIS and Jamie Harris v. THERMAX, INC., et al.
    2020542.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2003.

      John A. Tinney, Roanoke, for appellants.
    C. Peter Bolvig of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham, for appellees.
   CRAWLEY, Judge.

Ron Harris and Jamie Harris appeal from the trial court’s entry of a summary judgment in favor of Thermax, Inc., Jim Jones, and Carl Parise. We dismiss the appeal.

A brief recitation of the procedural posture of this case provides the basis upon which we dispose of this appeal. The Har-rises sued Thermax, Inc., Jim Jones, and Carl Parise asserting claims of fraud, breach of contract, and equitable and promissory estoppel; Thermax and Parise filed a timely answer. The trial court dismissed the Harrises’ claims against Jones on the basis of lack of service, but it later set aside its dismissal upon a showing that Jones, acting pro se, had mistakenly sent his answer directly to the Harrises’ counsel rather than to the trial court. Thermax and Parise filed a motion for a summary judgment, specifically requesting that the trial court certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., with a supporting brief and exhibits. Thermax and Parise filed a supplement to their motion for a summary judgment, and the Harrises filed a response, with a supporting brief and evidentiary materials. The record does not contain, and the case action summary sheet makes no reference to, a motion for a summary judgment filed by Jones. After conducting a hearing on the motion for a summary judgment filed by Thermax and Parise, the trial court entered an order purporting to grant a summary judgment as to all the defendants. The Harrises filed a notice of appeal to the supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In discussing the requirements of Rule 56, Ala. R. Civ. P., our supreme court has stated:

“Because Rule 56 requires, at the least, that the nonmoving party be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it, the trial court violates the rights of the nonmoving party if it enters a summary judgment on its own, without any motion having been filed by a party.”

Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 927 (Ala.2002)(emphasis added). Pursuant to Moore, the trial court could not enter a summary judgment in favor of Jones, and could not dispose of the Harrises’ claims against him, because Jones had not filed a motion for a summary judgment. As a result, the Harrises’ claims against Jones have not been adjudicated.

Under circumstances somewhat similar to those presented in this case, this court has stated:

“Although neither party has questioned the finality of the trial court’s judgment in this case, jurisdictional matters, such as the question whether an appeal is supported by a final judgment, are of such importance that this court takes notice of them ex mero motu. See Wilson v. Glasheen, 801 So.2d 848 (Ala.Civ.App.2001); Nunn v. Baker, 518 So.2d 711 (Ala.1987). A final judgment is one that completely adjudicates all matters in controversy between all the parties. See McCollough v. Bell, 611 So.2d 383 (Ala.Civ.App.1992).
“The record is quite clear that one of the named parties ..., while properly served, never appeared in court nor did the trial court dispose of the claims against him in the orders it entered in March 2001. An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. See Stone v. Haley, 812 So.2d 1245 (Ala.Civ.App.2001). In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson, 448 So.2d 355, 358 (Ala.[1983]). We find no Rule 54(b) certification in the record. Therefore, this court must dismiss the appeal as being from a nonfinal judgment. See Powell v. Powell, 718 So.2d 80 (Ala.Civ.App.1998).”

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002). The trial court did not certify its summary judgment in favor of Thermax and Parise as final pursuant to Rule 54(b), Ala. R. Civ. P. Thus, we conclude that this appeal should be dismissed as being from a nonfinal judgment.

APPEAL DISMISSED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: THOMPSON, Judge.

text:
    Carolyn A. AYERS v. CAVALRY SVP I, LLC.
    2020728.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2003.

      John Langland, Huntsville, for appellant.
    Naomi A. Cohen Ivker of Zarzaur & Schwartz, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

This appeal arises from the entry of a summary judgment in favor of Cavalry SVP I, LLC (“Cavalry”), in an action to recover from Carolyn A. Ayers $13,543.33, plus interest and costs, allegedly due on a credit account.

The facts in the record on appeal indicate the following. A credit-card account with U.S. Bank was opened in the name of the appellant, Ayers. U.S. Bank provided credit for the purposes of allowing the cardholder to make purchases and to obtain cash advances. Ayers made purchases and obtained cash advances on the credit account and failed to pay U.S. Bank the balance on the account. U.S. Bank sold the “Ayers account” to Midfirst Bank, which sought to have Ayers pay the outstanding balance due on the account. Ayers failed to pay Midfirst Bank, and Midfirst Bank transferred the account to Cavalry. Cavalry sought and obtained a summary judgment against Ayers for the sum of $16,824.90, which represented an award of $13,543.33 in principal due on the account, and $3,281.57 in interest.

In her brief on appeal, Ayers contends that the trial court erred in entering a summary judgment because, she argues, 1) Cavalry failed to properly plead a cause of action in its complaint, 2) the affidavit attached to Cavalry’s motion for a summary judgment contained hearsay and was not based on the personal knowledge of the affiant, and 3) Ayers presented substantial evidence of disputed material facts making the entry of a summary judgment improper. We will address these issues separately.

Ayers first argues that Cavalry’s complaint failed to properly plead a cause of action and that the trial court should have dismissed the action pursuant to Rule 12(b)(6), Ala. R. Civ. P. However, Ayers filed an answer to Cavalry’s complaint on February 10, 2003. Ayers filed her Rule 12(b)(6) motion to dismiss on March 4, 2003. A party must make a Rule 12(b)(6) motion “before pleading if a further pleading is permitted.” Rule 12(b), Ala. R. Civ. P. Here, Ayers did not assert her Rule 12(b)(6) motion to dismiss for failure to state a claim in her first responsive pleading to the complaint. In Trotter v. Sumner, 56 Ala.App. 87, 89, 319 So.2d 284, 285 (Ala.Civ.App.1975), this court stated:

“[W]e note that defendant’s motion to dismiss for failure to state a claim upon which relief can be granted was filed after his responsive pleading. While this defense, as enumerated in Rule 12(b)(6), is preserved by Rule 12(h)(2), it cannot be raised by a motion to dismiss filed subsequent to a responsive pleading. Rule 12(b), Alabama Rules of Civil Procedure.”

See also Sims v. Lewis, 374 So.2d 298, 301 (Ala.1979)(“The 12(b)(6) motion should not be used to test the sufficiency of a complaint after a responsive pleading has been filed.”). Because Ayers’s motion to dismiss was filed after her answer, which was a responsive pleading to Cavalry’s complaint, the trial court did not err in denying her motion to dismiss. Rule 12(b)(6), Ala. R. Civ. P.; Trotter, 56 Ala.App. at 89, 319 So.2d at 285.

Ayers also argues that the trial court erred in granting Cavalry’s motion for a summary judgment because, Ayers argues, she demonstrated that material facts were in dispute and presented substantial evidence in rebuttal to Cavalry’s summary-judgment motion. Cavalry sued Ayers seeking to recover under the theory of an account stated. Ayers alleges that Cavalry failed to present the evidence necessary to sustain a summary judgment as to the elements of a cause of action for an account stated.

A motion for a summary judgment is properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating such an issue.” Rutledge v. Wings of Tuscaloosa, Inc., 848 So.2d 1005, 1006 (Ala.Civ.App.2002) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989)). Evidence is “substantial” if it is 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 Assur ance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Ex parte Brislin, 719 So.2d 185 (Ala.1998). “Mere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party’s burden to offer substantial evidence to defeat the motion.” Blackburn v. State Farm Auto. Ins. Co., 652 So.2d 1140, 1142 (Ala.1994).

“An account stated is a post-transaction agreement. It is not founded on the original liability, but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. It is as if a promissory note had been given for the balance due.
“A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement; and (3) the debtor admits liability. The debtor’s admission to the correctness of the statement and to his liability thereon can be express or implied. An account rendered, and not objected to within a reasonable time becomes an account stated, and failure to object will be regarded as an admission of correctness of the account.”

University of South Alabama v. Bracy, 466 So.2d 148, 150 (Ala.Civ.App.1985) (citations omitted).

The first element in establishing a cause of action for an account stated requires that a statement of the account be “balanced and rendered” to the debtor. In Car Center, Inc. v. Home Indemnity Co., 519 So.2d 1319, 1323 (Ala.1988), our supreme court held that a creditor had not proven a “rendering of the statement of the account” when the creditor had “no competent testimony concerning the actual mailing of the statement.” The court noted that the affidavits submitted by the plaintiff in that case did not provide facts describing the plaintiffs mailing procedures or indicate that the affiant had knowledge of the plaintiffs mailing procedures. Id. at 1323.

In the instant case, there is no evidence indicating that Cavalry properly rendered the statement of the account to Ayers. The affidavit attached to Cavalry’s motion for a summary judgment does not indicate that the affiant had any knowledge of the mailing procedures used with regard to sending Ayers a statement of her account. The affidavit stated, in pertinent part:

“1. I am the manager of Cavalry SPV I, LLC which is a corporation organized and existing under the laws of the State of Delaware.
“2. I have knowledge of the facts herein set forth and am duly authorized to make this Affidavit; that the claim against Carolyn Ayers is within my knowledge and is just, true and correct and that all just and lawful offsets, payments and credits have been allowed.
“3. There is now due from said debt- or the PRINCIPAL sum of $13,543.33.”

Cavalry attached to its motion for a summary judgment invoices that contain Ayers’s address. However, that evidence alone does not establish that a statement of the account was rendered to Ayers. In Car Center, the court indicated that evidence showing that a properly addressed statement of the account with sufficient postage was sent and was not returned to the sender was sufficient to presume that the addressee received the statement of the account. Id. at 1323. Cavalry did not present any evidence indicating that a statement of or a bill for the account was ever mailed, properly addressed with sufficient postage, or rendered to Ayers. Thus, Cavalry failed to present evidence in support of this first element necessary to establish a cause of action for an account stated.

An account stated also requires an express or implied agreement to pay the bill. Car Center, supra. Calvary does not allege an express agreement between the parties. In Car Center, our supreme court held that “[a]n implied agreement to pay a bill can arise only where there has been a showing that the bill was rendered and the recipient of the bill failed to object within a reasonable time.” 519 So.2d at 1323. Here, Cavalry has failed to demonstrate that a bill was rendered to Ayers, and, therefore, that Ayers’s agreement to pay the bill could be implied.

In Mobile Rug & Shade Co. v. Daniel, 424 So.2d 1332, 1333 (Ala.Civ.App.1983) (quoting Martin v. Stoltenborg, 273 Ala. 456, 459, 142 So.2d 257, 259 (1962)), this court noted that “ ‘[a]n account stated is not founded on the original liability, but on the defendant’s admission that a definite sum is due in the nature of a new promise, express or implied.’ ” In that case, the court noted that, according to an affidavit, the plaintiff sought to recover upon the original liability rather than upon a new promise by the defendant to pay the total account balance. The court noted that the evidence indicated only an original promise to pay, not a new promise to do so. Thus, the court determined that the claim in that case was in the nature of one for an open account and not for an account stated. Id. The court in that case determined that the three-year statute of limitations barred an action alleging an open account. The situation presented in the present case is almost identical to that in Mobile Rug & Shade, supra, in that the evidence indicates that Cavalry is also seeking to recover upon the original liability.

Cavalry’s motion for a summary judgment might arguably be supported by substantial evidence establishing the elements of a prima facie case on a cause of action for an open account. “A plaintiff establishes a prima facie case in an action for money due on open account by presenting evidence that money was delivered to the defendant, that it was a loan, and that it has not been repaid.” Livingston v. Tapscott, 585 So.2d 839, 841 (Ala.1991)(citing 58 C.J.S. Money Lent § 7 (1948)). However, Ayers asserts in her answer to Cavalry’s complaint that an action seeking to recover on an open account is barred by the applicable statute of limitations. See Defco, Inc. v. Decatur Cylinder, Inc., 595 So.2d 1329, 1332 (Ala.1992); § 6-2-37(1), Ala.Code 1975 (statute of limitations for cause of action alleging an open account is three years).

Because Cavalry failed to present evidence sufficient to establish a prima facie case on its claim seeking recovery on the theory of an account stated, the evidence before the trial court was insufficient to support the entry of a summary judgment. We therefore conclude that the trial court erred in entering a summary judgment in favor of Cavalry, and we remand the case for further proceedings.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and MURDOCK, JJ., concur.

PITTMAN, J., concurs in the result.

      . Ayers appears to deny, in her affidavit in opposition to Cavalry's motion for a summary judgment, that she entered into an agreement “for a line of credit” with Cavalry or its predecessors in interest. However, Ayers has not denied making purchases or obtaining cash advances on the account.

      . The relevant dates for the account at issue are unclear from the record before this court. This is a matter for the trial court to resolve.