author: HARWOOD, Justice.

text:
    TRIPLE D TRUCKING, INC., et al. v. TRI SANDS, INC.
    1010553.
    Supreme Court of Alabama.
    July 3, 2002.

      Che’Ree’ M. Dudley, Bessemer, for appellants.
    Carl Dalton NeSmith, Jr., of Smith & NeSmith, P.C., Oneonta, for appellee.
   HARWOOD, Justice.

Triple D Trucking, Inc., Dan Young-blood, and Danny Youngblood (hereinafter collectively referred to as “the defendants”) appeal from the trial court’s denial of their motion to set aside a default judgment entered against them. We affirm.

On August 4, 2000, Tri Sands, Inc., sued the defendants seeking damages on claims alleging breach of contract and fraud. Specifically, Tri Sands alleged that it had entered into an oral contract with the defendants, which, it says, the defendants breached, and it claimed damages of $127,357. On September 11, 2000, and September 18, 2000, Danny Young-blood and Triple D Trucking, respectively, acting pro se, filed answers and motions to dismiss that stated, in pertinent part, that “[t]he claim of the Plaintiff in this complaint is on [an oral] contract, barred by the Statute of Frauds, and cannot be enforced.” On November 21, 2000, Attorney Roy M. Johnson filed an entry of appearance on behalf of the defendants. On July 24, 2001, Johnson filed a motion to withdraw as the defendants’ attorney; his motion stated, in pertinent part: “The Defendants have no objection to said withdrawal.... The Defendants have been informed that this case is set for trial on August 29, 2001.” On July 26, 2001, the trial court granted Johnson’s motion to withdraw in an order. The trial court’s order additionally stated that Johnson was to:

“1. Send the [defendants] a copy of this Order at the last known address.
“2. Notify [the defendants] that any trial or hearing heretofore set in this cause will not be continued based upon the party not having counsel.”

On August 29, 2001, Tri Sands and its counsel appeared for trial; the defendants failed to appear. At trial, counsel for Tri Sands elicited testimony from its president, Johnny Hopper. On that same day, the trial court entered an order on its case action summary that stated, in pertinent part:

“Case being set for trial. Plaintiff appears and defendants failed to appear. Court proceeds to take testimony.
“Based upon the evidence, the Court enters judgment in favor of the Plaintiff Tri Sands, Inc., and against Triple D Trucking, Inc., Dan Youngblood and Danny Youngblood in the amount of $127,357.00 plus costs.”

On September 23, 2001, the defendants, represented by counsel, filed a motion to set aside, alter, or amend the trial court’s default judgment against them. The motion stated that the defendants had a good defense to Tri Sands’ claims based upon an affidavit of Carole Herman, which was attached to the motion. Herman’s affidavit stated that she was an employee of Triple D Trucking and that she had knowledge that the amount claimed by Tri Sands as damages could not be substantiated. Herman made statements regarding several checks of various amounts allegedly retained and deposited by Tri Sands or Hopper. Attached to the affidavit were copies of checks and endorsements that Herman stated “appear to have been” made by Hopper. Herman’s affidavit concluded by stating: “Triple D records show that the most that Hopper could claim would be $18,909.99. It is physically impossible for Hopper to prove that he is owed the $127,000 that he claims in his lawsuit.”

The defendants’ motion also argued that the trial court’s judgment (1) was not supported by the evidence; (2) was in conflict with the facts in the case; (3) would unjustly enrich Tri Sands; and (4) would unduly and unjustly burden the defendants. Further, the motion stated that “[t]he [defendants were mistaken and confused about the actual conduct of this case on the setting date.” The trial court conducted a hearing on the defendants’ motion on October 11, 2001; it denied the motion that same day. On November 21, 2001, the defendants filed a notice of appeal to this Court.

On appeal, the defendants argue that the trial court erred by denying their motion to set aside the default judgment.

“The applicable standard of review in appeals stemming from a trial court’s granting or denying a motion to set aside a default judgment is whether the trial court’s decision constituted an abuse of discretion.”

Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 603 (Ala.1988).

In Sampson v. Cansler, 726 So.2d 632 (Ala.1998), this Court observed:

“In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.
“The first Kirtland factor is whether the defaulting party presented a meritorious defense. To present a meritorious defense, for Rule 55(c) purposes, does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense. Kirtland, 524 So.2d at 605.
“ ‘The defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. To be more precise, a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury.
“ ‘The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity — namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations could constitute a “plausible defense.” ’
“Kirtland, 524 So.2d at 606.
“The second Kirtland factor is whether the plaintiff will be unfairly prejudiced by setting aside the default judgment. The prejudice must be substantial. Ex parte Gilliam, 720 So.2d 902 (Ala.1998). Mere delay or increased costs are not sufficient to justify a refusal to set aside a default judgment. Gilliam. ...
“The third Kirtland factor is whether the default judgment was the result of the defendant’s own culpable conduct.
“ ‘To warrant a refusal to set aside a default judgment, the defaulting party’s actions must constitute willful conduct or conduct committed in bad faith, because “[njegligenee by itself is insufficient.” Bad faith or willfulness is identified by “incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness.” ’
“Gilliam, 720 So.2d at 904, quoting Kirtland, 524 So.2d at 608.”

726 So.2d at 633-35.

In regard to the first Kirtland factor, i.e., whether the defendants have presented a meritorious defense, we note that the answers filed by Danny Youngblood and Triple D Trucking asserted a Statute of Frauds defense. However, as stated in footnote 3, the defendants assert that the trial court abused its discretion in denying their motion to set aside the default judgment based upon a consideration of only their motion and the attached affidavit. The defendants’ motion stated that “[t]he Defendants have a good defense to the claim of the Plaintiff as is shown hereafter by the averments of and exhibits attached to this motion.” While this Court has stated that “[m]erely stating that one has a meritorious defense is simply not enough,” Phillips v. Randolph, 828 So.2d 269, 274 (Ala.2002), Herman’s affidavit testimony is attached to the defendants’ motion. However, Herman’s affidavit testimony does not support the Statute of Frauds defense previously asserted in Danny Youngblood’s and Triple D Trucking’s answers. Rather, the affidavit asserted only that the entire amount of damages claimed by Tri Sands could not be substantiated and that the most Hopper “could claim” would be $18,909.99. Therefore, the defendants’ motion does not contain a defense to liability under either of Tri Sands’ claims for breach of contract or fraud; rather, it challenges only the amount of damages recoverable. While this is not a complete defense to any claim presented by Tri Sands, arguably “sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury,” in regard to the amount of money the defendants owed to Tri Sands. Kirtland, 524 So.2d at 606. We conclude that the defendants have arguably presented “sufficient evidence ... to warrant submission of the case to the jury” pursuant to the first Kirtland factor.

As to the second Kirtland factor, whether the plaintiff will be unfairly prejudiced, this Court has most recently set out the burden the defaulting party must meet. In Phillips v. Randolph, supra, the defaulting party’s motion to set aside stated: “ ‘The Defendant avers that the Plaintiff will not be prejudiced by granting this motion.’ ” 828 So.2d at 275. This Court stated:

“Because Kirtland does not specifically state which party has the burden of proof relating to the second factor of the test established in Kirtland, we now take the opportunity to set out the principle of law that trial courts must apply in determining whether a plaintiff will be unfairly prejudiced if a default judgment is set aside. We hold that when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside.... Here, [the defaulting party] made no showing that [the plaintiff] would not be unfairly prejudiced if the default judgment was set aside. Consequently, we hold that the trial judge, in applying the second prong of the Kirtland test, did not err in denying [the defaulting party’s] motion to set aside the default judgment.”

828 So.2d at 278. In this case, the defendants’ motion to set aside the default judgment makes no statement that Tri Sands would not be unfairly prejudiced if the default judgment was set aside. In light of Phillips, we conclude that the defendants failed to meet their initial burden of showing that Tri Sands would not be prejudiced by setting aside the default judgment and thus failed to make the requisite showing under the second Kirtland factor.

In relation to the third Kirtland factor, whether the default judgment was the result of the defendant’s culpable conduct, the defendants stated in their motion, in pertinent part, that “the [defendants were mistaken and confused about the actual conduct of this case on the setting date.” In Phillips, supra, this Court observed:

“In DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1091 (Ala.1990), this Court stated:
“ ‘ “If judgment be entered against a party in his absence, before he can be relieved of the judgment he must show that it was the result of a mistake or inadvertence which reasonable care could not have avoided, a surprise which reasonable precaution could not have prevented, or a negligence which reasonable prudence could not have anticipated.” ’
“(Quoting McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.2d 499, 503 (1946).) In that case, DaLee had attempted to have a default judgment set aside after he realized that the judgment was entered against him personally, as well as against his company. This Court considered DaLee’s arguments, but ultimately affirmed the default judgment and the denial of the motion to set it aside. In doing so, the Court quoted the following, noting that it had been quoted as authority in Fancher v. Fancher, 262 Ala. 489, 80 So.2d 248 (1955):
“ ‘ “ ‘A party who ignores a summons and, without good excuse, neglects to make his defense at the proper time has no standing in any court when he seeks to avoid the resulting judgment or decree. Read v. Walker, 18 Ala. 323, 333.’ Boothe v. Shaw, 214 Ala. 552, 108 So. 563, 564.” ’
561 So.2d at 1091.
“The Court, in DaLee, quoting McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.2d 499, 503 (1946), further stated:
‘““It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business, his motion to set aside a judgment for default should be denied.” ’
561 So.2d at 1091.
“In Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 616 (Ala.1988), the Court, discussing the culpability of the defaulting party, stated, £[W]e acknowledge that, due to a trial judge’s superior vantage point, the trial court is the more suitable arbiter for determining with accuracy the culpability of the defaulting party’s conduct, and, for this reason, we will show great deference toward the trial court’s decisions with respect to such culpability.’ ”

828 So.2d at 278-79.

The only reason offered by the defendants in their brief to this Court concerning their confusion as to the date for which trial was set is the assertion, unsupported by any matter contained in the record before us, that the filing in the trial court by an attorney for Bonnie Youngblood (not Roy M. Johnson) of a suggestion of bankruptcy, which led to Bonnie Youngblood’s being dismissed as a defendant, “confused [the defendants] about the case status.” However, Johnson’s motion to withdraw as the defendants’ counsel stated that the defendants were informed that the case was set for August 29, 2001. Further, the defendants acknowledge in their brief that the trial court’s order allowing Johnson to withdraw, stating that the August 29, 2001, trial would not be continued for their not having counsel, was forwarded to them on July 26, 2001.

We cannot ascertain any fact in the record to support an inference that the defendants’ conduct was excusable negligence of the sort described by this Court in Sampson, supra, when discussing the third Kirtland factor. In the absence of any transcript of the hearing on the defendants’ motion to set aside the default judgment, we will not presume that the trial court abused its discretion in its evaluation of the defendants’ conduct. We therefore conclude that the defendants failed to make the showing required by the third Kirtland factor — that their failure to appear was not the result of their own culpable conduct.

In their effort to show that the trial court erred by refusing to set aside the default judgment, the defendants have presented only the possibility of a defense as to the amount of damages they might owe. The defendants have failed to make the required showing under Rule 55(c), Ala. R. Civ. P., and Kirtland that Tri Sands would not be prejudiced if the default judgment were set aside and that the default was not the result of their own culpable conduct. Accordingly, we conclude that the trial court did not abuse its discretion by denying the defendants’ motion to set aside the default judgment. The judgment of the trial court is due to be affirmed.

AFFIRMED.

SEE, BROWN, and STUART, JJ, concur.

MOORE, C.J., concurs in the result.

      . Bonnie Youngblood was originally named as a defendant in this action, but she was subsequently dismissed by order of the trial court.

      . A default judgment is proper under these circumstances. In Investors Guaranty Fund, Ltd. v. Compass Bank, 779 So.2d 185, 192 (Ala.2000), this Court observed
      " ‘ “It is well established that if the defendant is properly within the jurisdiction of the court, and if he has notice of the trial date and does not appear and defend, the court has no choice but to enter judgment for the plaintiff.” ' ”
      (Quoting Creel v. Gator Leasing, Inc., 544 So.2d 936, 937 (Ala.1989), in turn quoting Roberts v. Wettlin, 431 So.2d 524, 526 (Ala.1983)).

      . The record contains no transcript of the hearing on the defendants’ motion. Thus, the defendants have failed to present us with anything from that hearing from which we could possibly conclude that the trial court abused its discretion in denying their motion to set aside the default judgment. However, the defendants state in their brief to this Court that the trial court's denial of their motion was erroneous “in consideration of the presentation made by the motion and in support of the motion by affidavit.” Thus, out of an abundance of caution, we will consider the propriety of the trial court’s judgment as it relates to the defendants’ motion and the attached affidavit.

      . This Court has stated that the existence of a meritorious defense is "a threshold prerequisite when seeking to have a default judgment set aside.” Kirtland, 524 So.2d at 605. Further, Kirtland set out the three factors using a conjunctive "and”; therefore, it is necessary to evaluate all three factors to determine whether a trial court's denial of a motion to set aside a default judgment was an abuse of discretion. See Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610 (Ala.1988)(despite defaulting party’s presentation of a meritorious defense, culpability in failing to appear for trial precluded setting aside a default judgment).


source: Caselaw Access Project

author: LYONS, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION and Kathy Sawyer, Commissioner of the Department of Mental Health and Mental Retardation. (In re Millie Vick, as guardian of John David Powell v. Alabama Department of Mental Health and Mental Retardation et al.)
    1011081.
    Supreme Court of Alabama.
    July 3, 2002.
    Bill Pryor, atty. gen., and G.R. “Rick” Trawick, asst. atty. gen., Alabama Department of Mental Health and Mental Retardation, for petitioners.
    John D. Clements and Ricky J. McKinney of Burr & Forman, L.L.P., Birmingham, for petitioners.
    Kenneth J. Mendelsohn and Thomas E. James of Jemison, Mendelsohn & James, P.C., Montgomery, for respondent.
   LYONS, Justice.

The Alabama Department of Mental Health and Mental Retardation (“DMHMR”) petitioned for a writ of mandamus directing the Circuit Court of Montgomery County to vacate a discovery order it had entered in favor of Millie Vick, as guardian of John David Powell. The order directed DMHMR to produce the investigative report of the bureau of special investigations (“BSI”), the investigative division of DMHMR, relating to injuries Powell received while he was a resident at the Albert P. Brewer Developmental Center, a facility for habilitation of mentally retarded persons.

DMHMR argues that the trial court erred in ordering it to produce the BSI investigation report because, according to DMHMR, BSI investigation reports are protected by § 12-21-3.1, Ala.Code 1975, from civil subpoena unless the court finds, by substantial evidence, that the party seeking the production of the report is unable, without undue hardship, to obtain the substantial equivalent of the information in the report by other means. We have today decided Ex parte Alabama Department of Mental Health & Mental Retardation, 840 So.2d 863 (Ala.2002). In that case we held that § 12-21-3.1 does apply to investigative reports prepared by BSI. The Alabama Legislature vested BSI investigators with all the duties and the powers of police officers, see § 22-50-21, Ala.Code 1975, making BSI investigation reports subject to the provisions of § 12-21-3.1. The issue in this case is almost identical to the issue presented in Ex parte Alabama Department of Mental Health, with the exception that, in the present case, the trial court held a hearing on the matter and entered a protective order regarding the release of the BSI report. However, a trial court may not, simply by ordering that those who receive access to the report maintain confidentiality, obviate the requirement that the moving party show “undue hardship.” If that were the case, there would be little need for a requirement that the moving party show “undue hardship” before being given access to the information.

For the foregoing reasons, DMHMR is entitled to the relief it seeks; therefore, we grant the petition and issue the writ of mandamus. DMHMR may be compelled to produce the BSI investigation report, but only after Vick has shown that she is unable, without undue hardship, to obtain the substantial equivalent of the information contained in the report by other means.

PETITION GRANTED; WRIT ISSUED.

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

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

While the text of § 12-21-3.1, Ala.Code 1975, suggests that the privilege may depend on the pendency of some “criminal matter,” the parties do not develop either the facts or the law on this issue. Therefore I concur in the main opinion.


author: LYONS, Justice.

text:
    Deborah MOSTELLA v. N & N MOTORS and Shane Nunn.
    1010121.
    Supreme Court of Alabama.
    July 12, 2002.

      Charles E. Robinson, Jr., of The Robinson Law Firm, P.C., Ashville, for appellant.
    Edward Cunningham, Gadsden, for ap-pellees.
   LYONS, Justice.

Deborah Mostella appeals from a final judgment dismissing her action against N & N Motors and Shane Nunn. The trial court dismissed the action with prejudice because it concluded that Mostella’s claims were subject to arbitration. We reverse and remand.

In October 2000, Mostella visited N & N Motors in Rainbow City to purchase a used vehicle. Shane Nunn, described by Mostella as a “salesperson and partner” at N & N Motors, assisted Mostella in her purchase. Mostella ultimately decided to purchase a used 1989 Nissan Maxima automobile that Nunn showed her; she was using a 1987 Cadillac DeVille automobile that she owned as a trade-in. At the time of her purchase, the odometer on the Max-ima showed that the car had been driven 108,000 miles. Mostella says that she told Nunn she needed a low-mileage vehicle, and she asked whether the odometer on the Maxima was accurate. She states that Nunn assured her that the mileage shown on the odometer was correct. Mostella purchased the Maxima for $5,995. She received $700 credit toward that purchase for the Cadillac and paid $1,000 in cash. She financed the remainder of the purchase price with N & N Motors.

Among the sale documents relating to Mostella’s purchase of the Maxima is a document entitled “Alternative Dispute Resolution Agreement By Binding Arbitration.” The agreement states:

“In connection with the Customer(s) [sic] acquisition of the above described motor vehicle on or about the day and date shown above, the Customer(s) and the Dealer mutually covenant, stipulate and agree, in connection with the resolution of any dispute arising out of the contract(s) entered into by the parties of and concerning the within described motor vehicle as follows: That the vehicle described within was manufactured outside of Alabama; has operated and will continue to operate on interstate highways; and has been traveling in interstate commerce; the manufacture, transportation, sale and use thereof has been and will continue to be regulated by the laws of the United States of America; and, that the contraet(s) entered into by the parties concerning said motor vehicle evidence transactions involving and affecting commerce. The undersigned agree that all disputes not barred by applicable statutes of limitations or otherwise barred by law, resulting from or arising out of the sale transaction entered into, (including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services acquired by the purehaser(s); the condition of the motor vehicle; the conformity of the motor vehicle sold to the contract of sale; the representations, promises, undertakings, warranties or covenants made by Dealer in connection with the sale of the motor vehicle, or otherwise dealing with the motor vehicle; the terms of financing in connection therewith; any terms or provisions of any credit life and/or disability insurance purchased simultaneously herewith, or any terms or provisions of any extended service contract purchased simultaneously herewith); that Dealer and the purchaser(s) agree to submit such dispute(s) to BINDING ARBITRATION, pursuant to the Arbitration Association then existing in the County where the dealer maintains its principal place of business, except as follows: (1) The arbitrators impaneled to arbitrate this matter shall be selected by the parties to this agreement as follows — The Dealer shall select one arbitrator. The Customer(s) shall collectively select one arbitrator. The two arbitrators so selected shall select a third arbitrator, who shall be a certified A.S.E. Master Mechanic; (2) The prepaid arbitration filing fees and all other prepaid costs of the arbitration proceeding shall be paid by the party seeking affirmative relief. THIS ARBITRATION SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT, AND IN LIEU OF ANY TRIAL BY JURY.”

(Capitalization in original.)

Shortly after purchasing the Maxima, Mostella took it to an Express Oil Change franchise in Gadsden. She discovered that the previous owner of the Maxima had brought it to that Express Oil Change location for servicing in July and in August 2000, and that the mileage noted on those occasions was 172,578 and 177,148 miles, respectively. Mostella then sued N & N Motors and Nunn, alleging fraudulent misrepresentation and fraudulent suppression concerning the actual mileage of the vehicle.

N & N Motors and Nunn filed a motion to dismiss the action on the sole ground that, based on the arbitration agreement, Mostella’s claims should be submitted to binding arbitration. Other than the arbitration agreement, they submitted no evidence in support of their motion. Mostella opposed the motion to dismiss, arguing that her purchase of the Maxima did not substantially affect interstate commerce and that the arbitration clause was unconscionable. She submitted her affidavit and other evidence in opposition to the motion to dismiss. The trial court held a hearing on the motion to dismiss; both Nunn and Mostella testified at the hearing. Nunn testified that the Maxima had been manufactured in Japan, but that N & N Motors had acquired it from an Alabama resident as a trade-in vehicle. Nunn also testified that N & N Motors sold the Cadillac automobile Mostella had traded in at an auction held in Attalla, but he did not know who purchased the Cadillac. Mostella testified that she resides in Ashville, that after she purchased the Maxima she made one trip to Mississippi in it, and that she has driven it several times on Interstate Highway 65 (“1-65”) within Alabama. She also testified that she can no longer drive the Maxima because of mechanical problems that have developed, but that she continues to make monthly payments to N & N Motors at its Gadsden location.

We first address the procedural posture of this appeal. Effective October 1, 2001, Rule 4(d), Ala. R.App. P., provides:

“An order granting or denying a motion to compel arbitration is appealable as a matter of right, and any appeal from such an order must be taken within 42 days (6 weeks) of the date of the entry of the order, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure.”

This appeal was filed on October 3, 2001. Under the circumstances in this case, Mos-tella’s appeal would have been appropriate even before Rule 4(d) was amended because the trial court dismissed her complaint with prejudice. When a trial court enters an order compelling arbitration, a stay of the proceedings in the trial court during the pendency of the arbitration protects the plaintiff from facing the prospect of the expiration of an applicable statute of limitations or from paying another filing fee in the event future legal proceedings become necessary. An order compelling arbitration should not constitute an adjudication on the merits; therefore, a trial court should not dismiss with prejudice a case in which arbitration is ordered.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract requiring arbitration and proving that that contract involves a transaction that substantially affects interstate commerce. Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002); Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000).

We have held that the purchase of a used motor vehicle is not per se a transaction involving interstate commerce. Southern United Fire Ins. Co. v. Knight, 736 So.2d 582 (Ala.1999). The arbitration agreement contains the following statement:

“[The parties agree] [t]hat the vehicle described within was manufactured outside of Alabama; has operated and will continue to operate on interstate highways; and has been traveling in interstate commerce; the manufacture, transportation, sale and use thereof has been and will continue to be regulated by the laws of the United States of America; and, that the contract(s) entered into by the parties concerning said motor vehicle evidence transactions involving and affecting commerce.”

However, such a recital, without more, does not satisfy the requirement of showing that the transaction has a substantial effect on interstate commerce. See Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002), where this Court held:

“Nor does the fact that the agreement stated that ‘the property sold has been involved in, and necessarily involves, interstate commerce’ determine whether the transaction in fact did substantially affect interstate commerce. See Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999) (stating that a similar recitation ‘[did] not prove that the acknowledged involvement of or effect on interstate commerce [was] substantial ’).”

838 So.2d at 359. Therefore, in order to satisfy their burden of proof, N & N Motors and Nunn must have introduced evidence proving that Mostella’s purchase of the Maxima involved a transaction that substantially affected interstate commerce.

N & N Motors and Nunn rely upon Nunn’s testimony that the Maxima automobile was manufactured in Japan and that the Cadillac automobile Mostella traded in was sold at an auction held in Alabama but attended by automobile dealers from other states, and on Mostella’s testimony that she traveled to Mississippi in the Maxima one time and that she drove the Maxima on several occasions within Alabama on 1-65. In response, Mostella introduced evidence indicating that the Maxima was traded in at an Alabama location of N & N Motors by an Alabama resident; that it was sold in Alabama to Mostella, who is an Alabama resident; and that it was financed by N & N Motors, which is located in Alabama.

We conclude that N & N Motors and Nunn have not met their burden. We have previously held that the sale by an Alabama automobile dealership of a used motor vehicle to an Alabama resident with financing by an Alabama entity was not a transaction that had a substantial effect upon interstate commerce. Tefco Fin. Co. v. Green, 793 So.2d 755 (Ala.2001). In Tefco, we noted that there was no evidence indicating that the motor vehicle in that case had been driven outside of Alabama. Here, even though Mostella made one trip to Mississippi and drove the vehicle several times within Alabama on 1-65, we conclude that those facts alone fall far short of proving that the transaction in this case was one that substantially affected interstate commerce. N & N Motors and Nunn also point to the sale of Mostella’s Cadillac at an auction attended by dealers from other states as evidence indicating that the transaction substantially affected interstate commerce. We need not decide whether that sale is relevant to whether Mostella’s purchase of the Maxima substantially affected interstate commerce, because Nunn testified at the hearing that he did not know whether the Cadillac was purchased by an out-of-state dealer.

Because we hold that Mostella’s purchase of the Maxima did not substantially affect interstate commerce, we need not address the parties’ other arguments. The trial court erred in dismissing Mostel-la’s complaint; therefore, we reverse the judgment and remand the case.

REVERSED AND REMANDED.

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

MOORE, C.J., concurs in the result.

      . We cannot determine the corporate status, if any, of N & N Motors. It is not designated as either a corporation or a partnership on any of the sale documents included in the record, and none of the parties identifies its status.


author: SEE, Justice.

text:
    Michael MOORE v. GAB ROBINS NORTH AMERICA, INC., et al.
    1010298.
    Supreme Court of Alabama.
    July 12, 2002.
    A. Evans Crowe, Mobile, for appellant.
    James S. Lloyd and Thomas J. Skinner IV of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellees GAB Robins North America, Inc., and Herschel Wayne Hughes.
    David A. Hamby, Jr., and Jene W. Owens, Jr., of Richardson, Spear, Spear & Hamby, P.C., Mobile, for appellee Certain Underwriters at Lloyd’s, London.
    Thomas R. McAlpine, Mobile, for appel-lee Burkholder Insurance, Inc.
   SEE, Justice.

Michael Moore sued Wayne Hughes, an insurance adjuster; Burkholder Insurance, Inc., an insurance agency; GAB Robins North America, Inc., an independent adjusting agency; and certain underwriters at Lloyd’s of London. His claims were based on the denial of his insurance claim for loss of use of his beach condominium during Hurricane Georges in the fall of 1998. He is apparently arguing that he is entitled to recover under his insurance policy for rental income he lost while Hurricane Georges made travel to the Gulf coast impossible. After a protracted discovery effort, in which Moore filed numerous motions to compel discovery, the defendants each moved individually for a summary judgment, providing as support for the motions Moore’s deposition testimony and the insurance policy issued by Lloyd’s of London, which they allege did not cover loss of use. The trial court set a hearing date of September 21, 2001, for the summary-judgment motions.

However, on August 13, 2001, Moore filed a petition for the writ of mandamus with this Court, seeking an order compelling GAB Robins North America, Inc., to produce documents requested in Moore’s third amended request for production. The trial court sent all parties a statement that the hearing on the summary-judgment motions would not be set until after this Court ruled on Moore’s petition for the writ of mandamus. However, on September 19, 2001, before this Court ruled on Moore’s petition for the writ of mandamus, the trial court granted GAB Robins’s and Wayne Hughes’s motions for a summary judgment, and on September 24, 2001, it granted the summary-judgment motions filed by Burkholder Insurance and Lloyd’s of London. Moore appeals the summary judgments.

Moore argues on appeal that the trial court abused its discretion under Rule 78, Ala. R. Civ. P., and under Rule 56(c), Ala. R. Civ. P., in entering a summary judgment when it had informed all parties that it would postpone any hearing on the summary-judgment motions until this Court had ruled on Moore’s petition for the writ of mandamus. Moore alleges that the decision to rule on the summary-judgment motions prejudiced him because, he says, it prevented him from being able to file materials in opposition to the motions for a summary judgment.

Rule 56(c)(2), Ala. R. Civ. P., states that a motion for a summary judgment and all supporting materials must be served at least 10 days before the date set for the hearing, unless all parties agree to waive that deadline, and that statements or affidavits in opposition to a motion for a summary judgment must be served at least 2 days before the hearing. Moore argues that the trial court’s action in notifying the parties that it was suspending the hearing on the summary-judgment motions, originally set for September 21, 2001, until this Court ruled on the petition for the writ of mandamus, of necessity, also suspended Moore’s two-day deadline for serving his materials in opposition to the summary-judgment motions. He therefore was waiting to file his materials in opposition until after he learned of this Court’s decision on his mandamus petition. Moore argues that, in entering a summary judgment without setting a definite hearing date for the motions for a summary judgment, which the trial court had told all parties it would do, the trial court also failed to set a definite deadline by which Moore needed to serve his materials in opposition and thereby deprived him of the opportunity to oppose the motions for a summary judgment.

This Court addressed a similar situation in Hill v. Chambless, 757 So.2d 409 (Ala.2000). In that case, the administrator of an arrestee’s estate brought a § 1983 action against the arresting police officers. After one of the officers moved for a summary judgment, the trial court set a hearing date for the motion. Before the scheduled hearing date, the trial court entered a summary judgment. This Court reversed the summary judgment, stating:

“Because Rule 56(c)(2) specifically provides that a nonmoving party has until two days before the date of the hearing to file ‘any statement or affidavit in opposition’ to the motion, we conclude that the trial court erred in ruling eight days before the date of the scheduled hearing. ... [W]e conclude that a nonmoving party has a right to expect that a trial judge, having set a date for a hearing on a summary-judgment motion, will not issue a ruling before that party has had an opportunity to timely respond to the motion.”

757 So.2d at 411 (footnote omitted). The defendants claim that this case is inappo-site because, they say, no hearing had been set in this case. While they are technically correct — the original date set for the hearing was continued pending this Court’s disposition of the petition for the writ of mandamus and no new hearing date had been set — the trial court did assure all parties that it would, after this Court ruled on the petition for the writ of mandamus, set a date for the hearing, which would also set the deadline for Moore’s filing of any materials in opposition to the motions for a summary judgment.

Moore cites Van Knight v. Smoker, 778 So.2d 801 (Ala.2000), for the proposition that while Rule 78, Ala. R. Civ. P., does state that a court may enter an order denying a motion to dismiss or other motion for a final judgment without oral hearing, granting any motion for a final judgment, such as a motion for a summary judgment, without an opportunity to be heard is prohibited. “Although, in certain limited circumstances, a trial court may rule on a motion for summary judgment without conducting a hearing, once the trial court has set a date for a hearing on the motion, the court must allow the nonmov-ing party an opportunity to be heard.” 778 So.2d at 805 (citation omitted).

The defendants argue that, because the summary judgments were warranted, Moore cannot show that the absence of a hearing on the motions prejudiced him. They cite Hicks v. Alabama Pest Services, Inc., 548 So.2d 148 (Ala.1989), in support of their argument. In Hicks, this Court held that Hicks had no available bad-faith cause of action against the defendants as a matter of law because Hicks did not have an insurance contract with the parties he sued for bad-faith denial of claims and because he did not assert any claim against two other defendants and therefore could not assert a claim against their insurer.

In this case, Moore alleges that the denial of the opportunity to oppose the motions for a summary judgment prejudiced him, and we need not address the merits of Moore’s underlying claims to recognize that,'while he may not ultimately prevail, Moore deserves the opportunity to raise a genuine issue of material fact through his opposition to the motions for a summary judgment. This case is distinguishable from Hicks in that Moore did have an insurance contract with one of the defendants, and he did make a claim that was denied. While the parties may differ over the meaning of the provisions of the policy, to cut off Moore’s opportunity to make a showing of disputed facts to the trial court is to prevent him from having his day in court. We reverse the trial court’s summary judgments, and we remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: LYONS, Justice. WOODALL, Justice

text:
    Ex parte Stephen R. WINDOM. (In re Garfield W. Ivey, Jr. v. Stephen R. Windom).
    1010757.
    Supreme Court of Alabama.
    July 12, 2002.
    Charles H. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for petitioner.
    Barry A. Ragsdale of Ivey & Ragsdale, Birmingham, for respondent.
   LYONS, Justice.

Stephen R. Windom petitions this Court for a writ of mandamus directing the Walker Circuit Court to grant Windom’s motion to transfer this action to Mobile County. We grant the petition.

This is the fourth time some aspect of the dispute between Windom and Garfield Ivey has been before this Court. See Ivey v. State, 821 So.2d 937 (Ala.2001) (reversing Ivey’s convictions for criminal defamation and witness tampering); Ex parte Windom, 763 So.2d 946 (Ala.2000) (“Wmdom /”) (denying Windom’s first mandamus petition, which sought a writ directing the Walker Circuit Court to stay all discovery pending a ruling on Ms motion to transfer the action to Mobile County); and Ex parte Windom, 776 So.2d 799 (Ala.2000) (“Windom II”) (granting Windom’s second mandamus petition and directing the Walker Circuit Court to limit discovery to the venue issue). In Ivey, we set forth the essential facts underlying this dispute:

“On September 11, 1998, Melissa Myers commenced a civil action in the Mobile Circuit Court, alleging that Steve Windom, a state senator and nominee of the Republican Party for the office of Lieutenant Governor, had ‘solicited and engaged the services of [Myers] for the purposes of obtaining sex and sexual services in exchange for money’ and that Windom had ‘violently and physically abused, attacked, struck, slapped, physically restrained and injured [Myers] against her will.’ The complaint also included allegations of rape, forcible sodomy, and sexual assault and battery. Myers requested compensatory and punitive damages of ' an unspecified amount.
“A press release that contained information about Myers’s lawsuit against Windom was released to the media. A videotape of Myers’s statement regarding the allegations of her lawsuit was given to Jodi Brooks of a Mobile television station. Portions of the videotape were televised by the Mobile television station on September 15, 1998, during its nightly news broadcast. In response, Windom held a press conference denying Myers’s allegations; in that press conference he stated that Myers had been paid by ... Ivey to fabricate the story on which the complaint was based.”

Ivey, 821 So.2d at 939 (emphasis added).

Windom’s press conference was held in Montgomery on September 14, 1998. The next day, news of the press conference appeared in the Daily Mountain Eagle (“the Eagle ”), a newspaper printed in Walker County. After the phrase “MOBILE (AP),” the Eagle reported, in pertinent part:

“Windom, meanwhile, filed a counter-suit claiming he never met the woman and that political opponents came up with the false allegations. Windom contends Myers ... was paid $2,700 to make the claim in a scheme funded by a prominent trial lawyer.
“Windom, a Republican state senator from Mobile, in his countersuit for libel claimed Myers was paid at least $2,700 by his political foes to make false claims against him....
“Windom said his campaign determined that Jasper attorney Garve Ivey, a prominent trial lawyer, chartered a plane that brought some people to Mobile on Thursday to get a statement from Myers....
“Windom also said Ivey, a financial supporter of [his opponent], paid a man ... $5,000 to set up the whole case.”

“Woman Suing Windom Held for Psychiatric Testing,” Eagle, September 15, 1998, at Al. On October 22,1998, the Eagle printed a news report prefixed by the phrase “MONTGOMERY (AP)” containing similar statements. “Ivey Threatened With Lawsuit,” Eagle, October 22,1998, at Al.

On August 16, 1999, Ivey sued Windom in Walker County, alleging defamation based in part on the news reports printed in the Eagle. Contending that venue is improper in Walker County, Windom sought an order from the Walker Circuit Court transferring the action to Mobile County, the county of his residence, and staying all discovery pending a decision on the transfer motion and a resolution of the criminal charges then pending against Ivey. See Windom II, 776 So.2d at 801; Windom I, 763 So.2d at 948. Ultimately, this Court refused to order that discovery be stayed, Windom I, but did order that discovery be limited to the venue issue. Windom II, 776 So.2d at 804.

On December 17, 2001, the trial court entered an order denying Windom’s motion to transfer. That order stated, in pertinent part:

“Count I of [Ivey’s] complaint alleges that [Windom] defamed [Ivey] by causing certain false and defamatory statements to be published. In response to [Windom’s] Motion to Transfer Venue, [Ivey] contends that some of the defamatory statements on which his defamation claim is based were published in Walker County, Alabama, thereby making venue proper in this county.
“Although [Ivey’s] complaint does not precisely specify all of the allegedly defamatory statements on which Count I relies, [Ivey] has submitted an affidavit in which he testifies that:
“ ‘The claims in this complaint arise in part from false and defamatory statements made by the defendant Windom, about me, as published in the [Eagle ]. The [Eagle ] is a newspaper of general circulation printed and published in Walker County, Alabama.’
“(Affidavit of Garfield W. Ivey, Jr.) Attached to [Ivey’s] affidavit are copies of three newspaper articles published in the [Eagle ] containing statements attributed to [Windom] concerning [Ivey], many of which, if false, might well serve as the basis for allegations of defamation.
“In Ex parte Arrington, 599 So.2d 24 (Ala.1992), the Alabama Supreme Court held that ‘in actions against individuals alleging the publication of libelous matter in a newspaper article, venue lies in the county in which the newspaper was printed.’ 599 So.2d at 26. In the present case, the newspaper containing the allegedly defamatory statements ... was printed in Walker County. It would appear, therefore, that venue as to [Ivey’s] defamation claim is proper in this county.
“Unquestionably, the acts complained of in count I of [Ivey’s] complaint occurred in Walker County, Alabama; consequently, venue is proper in Walker County, Alabama, and [Windom’s] Motion to Transfer Venue based on Alabama Code Section 6-3-2(a)(3) should be, and the same is, hereby DENIED.”

(Emphasis in the trial court’s order.) Windom now seeks a writ of mandamus directing the trial court to vacate that order and to transfer the action to Mobile County, the county in which Windom resides.

“We note at the outset that the proper remedy for one seeking to avoid the unnecessary expense of a trial in [an improper] forum following an adverse ruling on a motion to change venue is a writ of mandamus.” Ex parte Jim Walter Homes, Inc., 712 So.2d 733, 734 (Ala.1998). Of course, the issue of improper venue may also be raised on appeal. Elmore County Comm’n v. Ragona, 540 So.2d 720, 725 (Ala.1989). See also Ex parte Diamond, 596 So.2d 423, 424 (Ala.1992).

The trial court correctly noted that venue in this case is determined pursuant to § 6-3-2(a)(3), Ala.Code 1975. That section provides:

“(a) In proceedings of a legal nature against individuals:
“(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

(Emphasis added.) Because Windom does not reside in Walker County, venue is proper in Mobile County, the county where Windom resides, unless the “act or omission complained of’ occurred in Walker County.

In that connection, Windom contends that “Ivey has not shown and cannot show that Windom originally published any alleged defamatory statement in Walker County.” Petition at 4. He states: “The various quotes attributed to Windom in [the] articles were made by Windom in Mobile or Montgomery Counties — not Walker County.” Id. He contends that the phrases “MOBILE (AP)” and “MONTGOMERY (AP),” appearing before the text of the news reports on which Ivey relies, prove that the news reports in the Eagle were merely reprints of reports by the Associated Press (“AP”) and, consequently, that they were not “originally published” in Walker County. “The only acts or omissions which occurred in Walker County were,” he insists, “the Jasper newspaper’s decisions to republish the stories off of the AP wire. These acts or omissions,” he concludes, “cannot be attributed to [Windom].” Petition at 7. Similarly, citing Ex parte Wilson, 408 So.2d 94 (Ala.1981), he contends that the “mere repetition of a libel ... does not give rise to venue in the county of repetition.” Windom’s Reply to Ivey’s Supplemental Brief and Answer at 5.

The complaint in this action charges Windom with making a variety of defamatory statements. Nowhere on the face of the complaint is there a suggestion that Windom made any of those statements in Walker County. Ivey opposed the motion to transfer the action with evidence indicating that accounts of Windom’s statements were published in Walker County by the local newspaper. We cannot draw from the plain meaning of the statute any basis upon which the conduct of a newspaper in reprinting in Walker County an account of remarks Windom made elsewhere would be relevant in determining venue. Ivey has not sued the local newspaper, nor has he alleged any wrongdoing on the part of the local newspaper. Therefore, “the act ... complained of’ (§ 6-3-2(a)(3)) is the conduct of Windom.

In a slander or libel case, the issue of venue must not be confused with the issue of ultimate responsibility or liability. Liability for slander or libel, like liability for any tort, depends on the continuum of the three essential elements of a tort: the wrongful act by the defendant, the proximate causation, and the damage. The venue statute isolates the first of these three essential elements, the beginning of the continuum — the wrongful act by the defendant — as one of the criteria (the other being the defendant’s residence) for determining venue. In the case before us, the republication of the remarks in Walker County was not the allegedly wrongful act by Windom but was rather a later act on the continuum, the end of the causal chain. The fact that the venue statute isolates the first essential element, the wrongful act by the defendant, as one of the criteria for determining venue in no way contradicts or alters the law as it relates to the tort of defamation, which fixes ultimate liability upon the defendant if all three essential elements are proved.

Ivey relies upon Ex parte Arrington, 599 So.2d 24 (Ala.1992), in which this Court interpreted § 6-3-2(a)(3) in determining venue in actions against individuals. The individual defendant in Ex parte Arrington, a resident of Jefferson County and the then mayor of Birmingham, wrote a newspaper article in Jefferson County that was published in Jefferson County. The action was filed in Shelby County. This Court held that venue was proper in Jefferson County and not Shelby County, where the defendant did not reside. The plaintiff conceded that, under settled precedent, an action against a newspaper published in Jefferson County would not be appropriate in Shelby County, yet he insisted that a different rule should apply to individual authors of newspaper articles as opposed to newspaper publishers.

In Ex parte Arrington, this Court rejected the argument that venue in an action against an individual defendant would be appropriate in every county in which damage had occurred.

“Consequently, we hold that in actions against individuals alleging the publication of libelous matter in a newspaper article, venue lies in the county in which the newspaper was printed.”

599 So.2d at 26 (emphasis added). As previously noted, nowhere in the complaint does Ivey allege that Windom published any article in a newspaper. This was no oversight, because Windom, unlike Arring-ton, was not the author of a newspaper article. Arrington’s conduct consisted of writing an article in Jefferson County for publication in Jefferson County. Windom’s conduct (not the newspaper’s) occurred in Montgomery County, the site of a press conference, and was subsequently reported in Walker County by individuals and entities wholly beyond his control. Ex parte Arrington stands for rigid adherence to the requirement that venue is proper in the county where the act complained of occurred.

Because Arrington happened to be the author of a newspaper article, his medium of publication was the newspaper. We should not extrapolate from Ex parte Arrington a rule that all individuals who make allegedly defamatory remarks that are subsequently repeated in a newspaper may be sued wherever the newspaper is published based on the fortuity in Ex parte Arrington of Arrington’s conduct having occurred in association with a newspaper published in his county of residence. To do so would be to rewrite § 6-3-2(a)(3). Ex parte Arrington stands only for the proposition that an individual who makes an allegedly defamatory statement should be sued where the defamatory remark was made. A proper application of the rule in Ex parte Arrington would deny venue in Shelby County if the evidence showed that Arrington, instead of happening to be an author writing an article for a newspaper in the county of his residence, was a speaker at a rostrum in Jefferson County who uttered allegedly slanderous remarks that either could be overheard just across the county line in Shelby County or were later repeated by a listener on his return to Shelby County. We cannot treat Windom any differently. See Ex parte Wilson, 408 So.2d 94, 96 (Ala.1981) (“[Although the libelous damage may accrue in separate counties, the injury happens in only one county, the county of original publication.”).

Applying the rule in Ex parte Arrington to this case, we conclude that had the action been filed in Montgomery County, the site of the press conference, venue would have been proper because Montgomery County was “the county in which the act or omission complained of may have been done or may have occurred.” § 6 — 3—2(a)(3).

Summarizing, the Legislature has made the site of the act complained of the appropriate venue. That a statement may be made in one county with full knowledge and hope that it will be reprinted in a newspaper in another county may well form a fair and just basis for laying venue in the county where the newspaper republishes the story. However, until the Legislature enacts such a rule, we cannot rewrite the statute to reach that result. Such judicial legislation would violate the separation-of-powers doctrine. See Ivey v. State, supra, 821 So.2d at 946, citing Art. III, §§42 and 43, Ala. Const. of 1901.

Windom, as the prevailing party on a motion to transfer the action for improper venue, is entitled to select the appropriate county to which the action must be transferred when venue is proper in more than one county. Rule 82(d)(3), Ala. R. Civ. P. In his motion to transfer venue, Windom requested that this action be transferred to Mobile County, the county of his residence. This action is due to be transferred to Mobile County.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL, J., dissents.

WOODALL, Justice

(dissenting).

The majority accurately summarizes Windom’s contentions regarding whether the “act or omission complained of’ occurred in Walker County:

“... Windom contends that Tvey has not shown and cannot show that Windom originally published any alleged defamatory statement in Walker County.’ Petition at 4. He states: ‘The various quotes attributed to Windom in [the] articles were made by Windom in Mobile or Montgomery Counties — not Walker County.’ Id. He contends that the phrases ‘MOBILE (AP)’ and ‘MONTGOMERY (AP),’ appearing before the text of the news reports on which Ivey relies, prove that the news reports in the Eagle were merely reprints of reports by the Associated Press (‘AP’) and, consequently, that they were not ‘originally published’ in Walker County. ‘The only acts or omissions which occurred in Walker County were,’ he insists, ‘the Jasper newspaper’s decisions to republish the stories off of the AP wire. These acts or omissions,’ he concludes, ‘cannot be attributed to [Windom].’ Petition at 7. Similarly, citing Ex parte Wilson, 408 So.2d 94 (Ala.1981), he contends that the ‘mere repetition of a libel ... does not give rise to venue in the county of repetition.’ Windom’s Reply to Ivey’s Supplemental Brief and Answer at 5.”

840 So.2d at 888.

Ivey contends that the Associated Press (“AP”) prefixes do not prove that the Eagle articles were mere reprints of AP reports. Thus, the parties dispute the significance of the AP prefix. However, I deem the AP prefix immaterial to the disposition of this case, because when “ ‘the second publication is a natural and probable consequence of the first, the initial publisher is responsible for it.’ ” Barnette v. Wilson, 706 So.2d 1164, 1166 (Ala.1997) (quoting Davis v. National Broadcasting Co., 320 F.Supp. 1070, 1072 (E.D.La.1970)). “ ‘ “Where there were circumstances, known to the original defamer at the time of his publication that might reasonably lead him to expect a repetition, he is responsible for it.” ’ ” Id.

Taken to its logical conclusion, Windom’s argument would preclude liability for a “second-tier publication.” Under his argument, one who utters defamatory material in a press conference in Montgomery County could not be hable for the reprinting of wire-service reports of those remarks by a newspaper printed in any other county. This argument ignores the realities of the “cyber age.”

It is commonly known that newspapers — especially small newspapers — rely on the reports of large, reputable, news-gathering agencies, such as the AP, for much of their information. See Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 38, 478 N.E.2d 721, 725 (1985). “Wire services, originally named for their operation over telegraph wires, grew to meet the needs of newspapers in various parts of the country. By subscribing to wire services, newspapers could take advantage of the manpower and finances of large services, which could afford to send reporters to myriad locations.” James E. Boasberg, With Malice Toward None: A New Look at Defamatory Republication and Neutral Reportage, 13 Hastings Comm. & Ent. L.J. 455, 457 (1991). “Without these services, even large papers would be vastly restricted in what they could report, since no paper could support a bureau in every state or a reporter in every foreign country. Small papers would likely be confined to reporting purely local news.” Id. at 457-58. Indeed, we judicially know that news reports of matters of statewide interest routinely reach many areas of Alabama through second-tier reporting, such as that involved in this case.

When a candidate for a statewide political office convenes a press conference to present his version of events that bear directly on the viability of his candidacy, he is not only aware of the nature of the reporting system, but he is also relying on it. He should not be heard to complain if he is subsequently called to defend his version of the story in counties other than the one in which his remarks were first made or printed. Undoubtedly, Windom’s remarks at the September 14, 1998, press conference and his choice of the forum for those remarks were calculated to reach as many Alabama voters as possible, including those in Walker County. He should not be heard to complain, therefore, when he is called to Walker County to defend his remarks, which were reproduced there in a second-tier report.

This rule would not, as Windom argues, establish statewide venue for defamation actions against individuals. His argument would have more appeal if an individual was subject to being sued in any county in which a newspaper was circulated. However, this Court has held that in a defamation action against an individual, based on the publication of allegedly defamatory material in a newspaper, the “act or omission” for venue purposes is the printing, not the circulation, of the allegedly defamatory material. Ex parte Arrington, 599 So.2d 24 (Ala.1992).

Arrington involved a complaint filed in Shelby County by Leon Kelly against the then mayor of Birmingham, Richard Ar-rington, alleging that a newspaper article written by Mayor Arrington and printed in the Birmingham News and the Birmingham Times defamed Kelly. Id. at 25. Kelly conceded that had he sued the “corporate newspaper publisher rather than the author of the newspaper column, venue would have been proper only in Jefferson County, pursuant to Ala.Code 1975, § 6-3-7, which provides for actions against corporations ‘in the county where the injury occurred.’ ” 599 So.2d at 25 (emphasis in Arrington). This Court recognized no such distinction, but construed § 6-3-2(a)(3) as laying venue for actions against the individuals who supplied the newspaper with the defamatory statements in the county in which the newspaper is printed, not in counties in which the newspaper is merely distributed. 599 So.2d at 26.

Like Kelly, Windom concedes that, had Ivey sued the Eagle for printing Windom’s remarks, venue might be proper in Walker County. Petition at 5. Arrington clearly refutes any such distinction. Moreover, Arrington’s county-of-printing limitation thoroughly refutes Windom’s statewide-venue argument. Thus, as established in Arrington, the “act or omission” on which venue in Walker County is based is the culmination of that chain of events, namely, the printing of Windom’s remarks, that was set in motion by the press conference convened in Montgomery.

Finally, contrary to Windom’s argument, Ex parte Wilson, 408 So.2d 94 (Ala.1981), does not stand for the proposition that the “repetition of a libel ... does not give rise to venue in the county of repetition.” Unlike the defendant in Arrington, the defamation defendant in Wilson was the corporate newspaper. The venue issue in Wilson involved the distinction between “damages” and “injury,” an issue not involved in this case. Specifically, the Court stated:

“Code of 1975, § 6-3-7, provides that an action against a domestic corporation for personal injuries may be commenced in the county where the injury occurred. Petitioner claims that the injury to his reputation occurred in Hale County, the county in which he resides. In Age-Herald Publishing Company v. Huddleston, 207 Ala. 40, 92 So. 193 (1921), however, we held that ‘in an action for libel against a newspaper the injury— the breach of duty — occurs, within the meaning and application of the venue statute, at the place where the newspaper is primarily published, and not in other places where it is secondarily published, that is merely circulated.’ Id. at 45, 92 So. at 198. Thus, although the libelous damage may accrue in separate counties, the injury happens in only one county, the county of original publication. The evidence in the present case reveals that The Post Herald is printed and published in Jefferson County. The trial court did not err, therefore, in finding that the injury occurred in that county alone.”

408 So.2d at 96 (some emphasis added; some emphasis original). Thus, within the context of the issue involved in Wilson, the phrase “secondarily published” refers, not to the “county of repetition,” as Windom contends, but to mere circulation as opposed to printing. Wilson is not authority for.limiting venue to the county in which allegedly defamatory material is first printed, when the material is subsequently reprinted throughout the state by various newspapers.

In summary, this Court should hold that venue is proper in Walker County, pursuant to § 6-3-2(a)(3), based on the fact that the newspaper containing allegedly defamatory statements uttered at a press conference outside Walker County was printed in Walker County, regardless of whether the statements were reprinted from an AP news-service report first printed or published in another county. I am convinced that the trial court did not err in denying Windom’s motion to transfer the action to Mobile County. Therefore, the writ should be denied. For these reasons, I respectfully dissent.

      . "The undisputed facts reveal that the newspapers are printed and published in Jefferson County and that Mayor Arrington researched and wrote the article in Jefferson County.” 599 So.2d at 25 n. 2.

      . Significantly, in venue cases, the word injury commonly refers not to the damage allegedly suffered by the plaintiff, but to the wrongful act or omission allegedly committed by the defendant; the word injury, as used in these cases, derives from the Latin word injuria, meaning the wrongful act or omission. Ex parte Wiginton, 743 So.2d 1071, 1074 (Ala.1999); Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356, 1358 (Ala.1993); and Age-Herald Publ’g Co. v. Huddle-ston, 207 Ala. 40, 44, 92 So. 193, 197 (1921). Thus, even those venue cases that hold that venue of a personal action lies in the county where the injury occurred commonly mean the county where the defendant committed the alleged wrongdoing. Id.