author: JOHNSTONE, Justice.

text:
    ALABAMA DEPARTMENT OF CORRECTIONS et al. v. Helen THOMPSON.
    1001191.
    Supreme Court of Alabama.
    Feb. 14, 2003.

      William H. Pryor, Jr., atty. gen., and Ellen Leonard and Alyce S. Robertson, asst, attys. gen., for appellants.
    Mark Kennedy, Patrick Patronas, and Misha Mullins of Gathings Law, Montgomery, for appellee.
   JOHNSTONE, Justice.

The appellants are the defendants Alabama Department of Corrections; Edwin Henry, the warden of the Frank Lee Youth Center; and Deborah Haynes and Christopher Thomas, correctional officers at the Frank Lee Youth Center. Pursuant to Rule 5, Ala. R.App. P., we granted permission for these defendants to appeal the interlocutory order of the trial court denying their motion for summary judgment. Their motion for summary judgment was grounded on their claims of absolute and state-agent immunity and their denial of any duty to the plaintiff to protect her from the criminal acts of a third person. We hold that the trial court erred in denying the defendants’ summary judgment motion. We reverse and remand with instructions.

Helen Thompson sued the Alabama Department of Corrections for its negligence in causing or allowing the escape of inmate Jessie Bennett from the J.F. Ingram Technical College (the “College”) at the Frank Lee Youth Center. Thompson alleged that, after Bennett escaped, he broke into her home, assaulted her, rendered her unconscious, and stole her automobile. She demanded compensatory and punitive damages.

Thereafter, Thompson amended her complaint to add Warden Henry and correctional officers Haynes and Thomas as defendants. Thompson alleged that Henry, Haynes, and Thomas negligently or wantonly “allowed Jessie Bennett to escape from confinement at [the] College.” She alleged also that Henry and Haynes negligently or wantonly selected Bennett “to receive training at [the] College.” Thompson further alleged that Henry, Haynes, and Thomas negligently or recklessly failed “to properly train and/or supervise the Department of Corrections employees assigned to guard and detain state prisoners at [the] College.”

In answering the amended complaint, the Department of Corrections, Henry, Haynes, and Thomas asserted various af-fírmative defenses including state-agent immunity and absolute immunity. They asserted also that they “owed no special duty to [Thompson] or maintain[ed] [no] special relationship to her.”

These defendants then moved for summary judgment on the grounds of absolute immunity, state-agent immunity, and absence of any duty to Thompson to protect her from the criminal acts of Bennett. They asserted also that Thompson failed to “allege sufficient facts to establish proximate cause between any act of the Defendants and any resulting injury or damaged to [Thompson].” They submitted affidavits and documents in support of their summary judgment motion. Warden Henry’s affidavit stated:

“Correctional Officer I’s and Sergeants have no involvement with the classification procedure for inmates. Inmate Bennett was assigned to Draper Correctional Facility and classified by officials at Draper Correctional Facility. Inmate Bennett was assigned by officials at Draper Correctional Facility to take classes at J.F. Ingram. The classification officials at Frank Lee Youth Center had no involvement with Inmate Bennett’s classification.”

In their respective affidavits, Warden Henry and correctional officers Haynes and Thomas all stated that “I do not know Helen Thompson and had no prior knowledge that Inmate Bennett might harm her.” Thompson opposed the summary judgment motion and submitted documents and depositions excerpts in support of her opposition.

The trial court denied the summary judgment motion and certified the case as appropriate for a permissive appeal. The Department of Corrections, Henry, Haynes, and Thomas petitioned this Court for permission to appeal the denial of their summary judgment motion, and we granted that petition.

On June 3, 1983, the Commissioner of the Department of Corrections adopted Administrative Regulation no. 305:

“Wardens and Directors where vocational schools are located will
“C. Notify the education facility Director that no vehicle other than the vehicle being repaired or the maintenance vehicle will be allowed inside the area.
D. Instruct each correctional officer assigned to education areas that his duties will be as follows:
“(5) No vehicles will be permitted entry in these areas other than the vehicles being repaired or maintenance vehicles.”

Although Warden Henry knew Administrative Regulation no. 305 before he became the warden of the Frank Lee Youth Center, he continued the previous warden’s unwritten standard operating procedures. These required:

1. That any patron of the College register at the gate;
2. That a correctional officer search the patron’s vehicle before it entered the College grounds;
3. That a correctional officer escort the patron and vehicle to the various shops for items to be loaded onto the vehicle;
4. That a correctional officer search the vehicle again at the gate before the vehicle left the grounds;
5. That all containers on the vehicle be visually searched, inside and outside;
6. And that all items and containers on the vehicle be repositioned or unloaded if necessary to allow access for a thorough search.

Although correctional officers Haynes and Thomas both knew Administrative Regulation no. 305 and the unwritten standard operating procedures, they purported to follow only the unwritten standard operating procedures.

Bennett, an inmate at Draper Correctional Facility, attended the College. In order to escape while at the College, Bennett hid inside one of several cabinets built for a patron. Another inmate assisted Bennett in escaping by loading the cabinets, with Bennett inside one, into the back of the patron’s truck in such a manner that the cabinets could not be fully opened and searched without being removed from the truck.

At the gate, correctional officer Thomas climbed into the back of the patron’s truck, stepped between the cabinets, and searched the cabinets by opening each cabinet partially, putting his arms inside each cabinet, and feeling inside the cabinet. He did not reposition or unload the cabinets to allow a thorough visual search, and he did not feel Bennett inside the cabinets. Thomas also searched the interior of the patron’s truck. Correctional officer Haynes supervised Thomas’s search of the truck and cabinets.

Shortly after the truck left the College grounds, the patron telephoned the College to report that a black inmate had jumped from the back of the patron’s truck in a certain area of Montgomery. The patron reported that he had notified the Montgomery Police Department, officers of which were in pursuit of the inmate, Bennett. At some point during his escape, Bennett broke into Thompson’s house, assaulted Thompson, rendered her unconscious, and stole her automobile. Bennett was captured approximately one hour and twenty minutes after the patron reported that Bennett had jumped from the truck.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the fight most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).”

Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000).

We first address the issue of immunity of the Department of Corrections. Article I, § 14, Alabama Constitution of 1901, provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” “[A] Department, as an agency of the State, is immune from the tort liability....” Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455, 457 (Ala.1997). Thus, the trial court erred in denying a summary judgment to the Department of Corrections.

We next address the issue of state-agent immunity for the defendants Henry, Haynes, and Thomas. “Ex parte Cranman, 792 So.2d 392 (Ala.2000), recounts the evolution of State-agent immunity ...,” Ex parte Rizk, 791 So.2d at 913, and restates the law on that topic:

“We therefore restate the rule governing State-agent immunity:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000) (emphasis in original). “This restatement was adopted by our decisions in Ex parte Rizk, [supra,] and Ex parte Butts, 775 So.2d 173 (Ala.2000).” Ex parte Blankenship, 806 So.2d 1186, 1189 (Ala.2000).

Warden Henry and correctional officers Haynes and Thomas argue that they are entitled to state-agent immunity under paragraphs (1), (2)(d), or (3) of the restatement in Cranman. Thompson argues that these defendants are not entitled to state-agent immunity because, she says, “their actions were willful, directly violated lawful state regulations and were unrelated to the formation or application of governmental policy.” Appellee’s brief, p. 9.

Although Warden Henry “formu-lat[ed] plans, policies, or designs” for guarding inmates attending the College, he knowingly violated Administrative Regulation no. 305 by maintaining the unwritten standard operating procedures of permitting patrons’ vehicles on the grounds there. Thus, Warden Henry’s “formulation of] plans, policies, or designs” was a willful violation of an administrative regulation or was an act beyond his authority. Accordingly, he is not entitled to state-agent immunity under paragraph (1) of the restatement in Cranman, 792 So.2d at 405. The record is devoid of evidence that Haynes or Thomas “formu!at[ed] plans, policies, or designs.” Thus, Haynes and Thomas are not entitled to state-agent immunity under paragraph (1) of the restatement in Cranman, 792 So.2d at 405.

Although Henry’s duties as the warden of the Frank Lee Youth Center required him to exercise “his ... judgment in the administration of a department or agency of government, including ... hiring, firing, transferring, assigning, or supervising,” Ex parte Cranman, 792 So.2d at 405, correctional officers at the College, his instruction to his correctional officers to follow his unwritten standard operating procedures was a willful violation of an administrative regulation or was an act beyond his authority. Thus, Warden Henry is not entitled to state-agent immunity under paragraph (2)(d) of the restatement in Cranman, 792 So.2d at 405. The record is likewise devoid of evidence that Haynes or Thomas “hir[ed], fir[ed], trans-ferr[ed], [or] assigned] ... personnel.” Although Haynes was Thomas’s supervisor, the record is devoid of evidence that Haynes’s supervisory responsibilities were part of her “exercising ... her judgment in the administration of a department or agency of government,” Ex parte Cranman, 792 So.2d at 405. Moreover, Haynes knew that the unwritten standard operating procedures of permitting patrons’ vehicles to enter the grounds of the College and of searching vehicles entering and exiting the grounds there violated Administrative Regulation no. 305. Thus, in supervising Thomas and permitting him to allow a patron’s vehicle to enter the College grounds for a purpose other than to be repaired there, Haynes willfully violated a written regulation. Indeed, Haynes failed even to require Thomas to obey the safeguards of the unwritten standard operating procedures for searching departing vehicles. Therefore, Haynes acted willfully or beyond her authority. Accordingly, neither Haynes nor Thomas is entitled to state-agent immunity under paragraph (2)(d) of the restatement in Cranman, 792 So.2d at 405.

Nor are Warden Henry and correctional officers Haynes and Thomas entitled to state-agent immunity under paragraph (3) of the restatement in Cranman, 792 So.2d at 405. In knowingly violating Administrative Regulation no. 305 by purporting to follow the unwritten standard operating procedures, and indeed in knowingly violating the unwritten standard operating procedures themselves, these defendants were not “discharging duties imposed on a department or agency by statute, rule or regulation, insofar as the statute, rule or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner." Cranman, 792 So.2d at 405 (emphasis added).

Last, we address the contention of Warden Henry and correctional officers Haynes and Thomas that they are entitled to summary judgment on the ground that they did not owe a duty to Thompson to protect her from the criminal acts of Bennett. Thompson argues that wardens and correctional officers have a special relationship with prisoners placed in their charge and, therefore, Henry, Haynes, and Thomas “had a duty to Mrs. Thompson, even under current general premises liability standards. See Finley v. Patterson 705 So.2d 826, 828 (Ala.1997).” Appellee’s brief, p. 19.

“ ‘It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third party.’ Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368, 1370 (Ala.1986).”

Hail v. Regency Terrace Owners Ass’n, 782 So.2d 1271, 1274 (Ala.1999).

“The ‘special relationship’ exception is drawn from Restatement [(Second) of Torts ] § 315, which provides:
“ ‘There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“ ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“ ‘(b) a special relation exists between the actor and the other which gives to the other a right to protection.’
“(Emphasis added.)”

Finley v. Patterson, 705 So.2d 826, 828 (Ala.1997). “ ‘Special circumstances’ arise when the defendant ‘knew or had reason to know of a probability of conduct by [a third person] that would endanger the plaintiff.’ Saccuzzo v. Krystal Co., 646 So.2d 595, 596 (Ala.1994), quoting Nail v. Jefferson County Truck Growers Ass’n, Inc., 542 So.2d 1208, 1211 (Ala.1988).” Hail, 782 So.2d at 1274.

Although we have not directly addressed whether a state correctional officer owes a duty to a specific member of the public to protect him or her from the criminal acts of an escaped inmate, see Ryan v. Hayes, 831 So.2d 21 (Ala.2002), other states have directly addressed this question. While the holdings of other state courts are not controlling, they are persuasive on the issue.

In Chivas v. Koehler, 182 Mich.App. 467, 453 N.W.2d 264 (1990), the Michigan Court of Appeals addressed whether a special relationship existed between prison guards and escaped prisoners that could render the prison guards hable to the estate of a police officer killed by escaped prisoners. Chivas, the administrator of the estate of the deceased police officer, had sued the prison guards on duty at the time of the escape for “negligently and wrongfully placing them in a minimum security facility and by faffing to carry out proper capture procedures.” 182 Mich.App. at 470, 453 N.W.2d at 265. The prison guards asserted that they did not owe a duty to the decedent to protect him from the escaped prisoners. The trial court granted the prison guards summary judgment on the ground that they did not owe a duty to the decedent. Chivas appealed. The Michigan Court of Appeals held:

“To establish a prima facie case of negligence, a plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the defendant’s breach of duty was a proximate cause of the plaintiffs damages; and (4) that the plaintiff suffered damages. A duty is a legally recognized obligation to conform to a particular standard of conduct towards another. Whether a duty exists is a question of law for the court. Sierocki v. Hieber, 168 Mich.App. 429, 433, 425 N.W.2d 477 (1988).
“The general rule is that there is no duty to protect an individual who is endangered by the conduct of a third person. Id. In determining whether a legal duty should be imposed, the trial court should balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties. A duty of reasonable care may arise where one stands in a special relationship with either the victim or the person causing the injury. Id., p. 434, 425 N.W.2d 477.
“Plaintiff argues that a special relationship was present between defendant guards and the escaped inmates, because of the control the guards exercised over the inmates. Plaintiff likens the situation to that where this Court has imposed a duty of reasonable care on psychiatrists who determine, or by the standard of their profession should have determined, that a patient poses a serious danger of violence to a readily identifiable person. Sierocki, supra, p. 434, 425 N.W.2d 477. Hinkelman v. Borgess Medical Center, 157 Mich.App. 314, 321-322, 403 N.W.2d 547 (1987), Iv. den. 428 Mich. 905 (1987). See also Duvall v. Goldin, 139 Mich.App. 342, 362 N.W.2d 275 (1984), lv. den. 422 Mich. 976 (1985) (duty imposed on defendant physician who allegedly failed to properly diagnose and treat his epileptic patient and failed to inform the patient not to operate an automobile). Such a duty has been found based on the defendant’s special relationship of control over the person causing the harm. Hinkelman, supra, 157 Mich.App. p. 322, 403 N.W.2d 547.
“However, generally a police officer does not owe a duty to any one individual. A police officer’s duty is generally owed to the public and not to a specific individual. Markis [v. City of Grosse Pointe Park], 180 Mich.App. [545,] p. 558, 448 N.W.2d 352 [(1989)]; Eichhom [v. Lamphere School District], 166 Mich.App. [527,] p. 545, 421 N.W.2d 230 [(1988)]. Only where a special relationship between the parties exists which the law recognizes and defines as including a duty to conform to a particular standard of conduct toward another will a duty be recognized. Eichhom, supra, p. 546, 166 Mich.App. 527, 421 N.W.2d 230.
“We find the situation of prison guards more analogous to that of police officers, where a duty is owed generally to the prison population and to society, than to the situation involving psychiatrist/physician-patient relationships where special one-on-one relationships have developed and where the psychiatrist or physician has control of the treatment of the specific patient. Here, the two defendant guards were responsible for watching the general prison population of approximately ninety inmates, and no particular special relationship was alleged between defendant guards and the escaped inmates that was different from the relationship between the guards and the general inmate population. Thus, we decline to find that a special relationship existed between defendant guards and the escaped inmates. Therefore, the trial court properly granted defendants Ox-enford and Sharland summary disposition pursuant to [Michigan Court Rule] 2.116(C)(8) on the ground that they owed no duty to plaintiff’s decedent.”

182 Mich.App. at 475-76, 453 N.W.2d at 268 (emphasis added).

In Washington v. Lexington County Jail, 337 S.C. 400, 523 S.E.2d 204 (Ct.App.1999), the South Carolina Court of Appeals addressed whether the trial court erred in granting the Rule 12(b)(6), S.C.R.Civ.P., motion of the defendants the Lexington County jail, the South Carolina Department of Corrections, and the State of South Carolina to dismiss the plaintiff’s action on the ground that the defendants did not owe a duty to the plaintiff to protect him from the criminal acts of an escaped prisoner. A state prisoner assigned to the county jail had stolen a car there and had escaped from a work detail near the county courthouse. The escaped prisoner then had broken into the plaintiff’s house while the plaintiff was asleep, had stolen some of the plaintiffs clothes, and had stolen the plaintiffs car.

The plaintiff sued the defendants for negligence, willfulness, wantonness, and gross negligence in failing to maintain proper control over the prisoner; “failing to prevent [the prisoner] from having access to a vehicle while knowing he was serving a sentence for auto theft”; “failing to properly supervise [the prisoner]”; and “failing to use the degree of care and caution that a reasonably prudent person would have used under the circumstances.” 337 S.C. at 404, 523 S.E.2d at 206.

The defendants moved to dismiss the complaint on the ground that they did not owe a duty to the plaintiff to protect him from the criminal acts of an escaped prisoner. The trial court granted the motion to dismiss on the ground “that any duty owed to [the plaintiff] was in fact a public duty owed to the public at large and not to [the plaintiff] individually.” Washington, 337 S.C. at 405, 523 S.E.2d at 206. Affirming the order dismissing the plaintiffs action, the South Carolina Court of Appeals stated:

“Under the public duty rule, public officials are generally not held liable to individuals for negligence in discharging public duties because the duty is owed to the public at large and not to any one individual. Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998). ‘The public duty rule is a negative defense which denies an element of the plaintiffs cause of action — the existence of a duty of care to the individual plaintiff. The burden is on the plaintiff to show a duty of care was owed to him.’ Ray field v. South Carolina Dep’t of Corrections, 297 S.C. 95, 106-07, 374 S.E.2d 910, 916 (Ct.App.1988).
“Our supreme court has held that police officers owe a duty of care to the public at large and not to any one individual. In Wyatt v. Fowler, 326 S.C. 97, 484 S.E.2d 590 (1997), Wyatt sued the sheriff and his deputies in common-law negligence over events arising out of the serving of an arrest warrant. Fowler maintained that he could not be sued in negligence because any duty owed to Wyatt was in fact a duty owed to the public only. Our supreme court agreed and held that the police owe a duty to the public at large and not to any one person individually. Id.
“We find the situation of guards who maintain custody of inmates analogous to that of police officers who owe a duty generally to society rather than to any one individual. Accordingly, we hold that those who maintain custody of prisoners or inmates do so for the protection of the public and are, therefore, not liable to individuals for damages caused by an escaped inmate under the public duty rule.
“An exception to the public duty rule, however, is recognized when a plaintiff can establish that the defendant owed him an individual or special duty of care. Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219 (1991). This special duty may be created by statute or some other special circumstance. Wells, 331 S.C. at 306, 501 S.E.2d at 752. Generally, however, a person has no duty to protect another from harm inflicted by a third person. Rayfield, 297 S.C. at 101-02, 374 S.E.2d at 913.

337 S.C. at 405-06, 523 S.E.2d at 206-07 (emphasis added). The South Carolina Court of Appeals affirmed the order of dismissal.

In Price v. Owen, 67 Ga.App. 58, 61, 19 S.E.2d 529, 532 (1942), the Georgia Court of Appeals addressed whether “the warden of a public-works camp, under authority from the Prison Commission” was liable for the alleged negligence of two allegedly intoxicated convicts who drove a truck belonging to the county commission into a motorist’s automobile on a public road. Declining to hold the warden liable for the criminal acts of the convicts, the Georgia Court Appeals stated:

“Our own Supreme Court, in Henderson v. Dade Coal Co., 100 Ga. 568 (28 S.E. 251, 40 L.R.A. 95 [(1897)]), has said: ‘As a general rule, persons in charge of a State convict, whether their custody and control of him be lawful or otherwise, are not liable in damages for a criminal tort committed by him while at large, although his being at large was by their permission, or because of their negligence in failing to keep him safely confined. Ordinarily, under such circumstances, the convict’s wrongful act would be too remote a consequence of his keepers’ misconduct in the premises to render them responsible to the person injured. This rule would, of course, be varied if they were in any way connected with the perpetration of the tort, or had reasonable grounds for apprehending that it would be committed.’ ”

Price, 67 Ga.App. at 63, 19 S.E.2d at 533.

In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), the Supreme Court of Kansas addressed whether the State of Kansas, the Kansas State Penitentiary, the Sheriff of Leavenworth County, the sheriff’s department, or the Board of County Commissioners of Leavenworth County were hable to a police officer injured by escaped state prisoners. The Kansas Supreme Court adopted Restatement (Second) of Torts § 319 (1965), which prescribes the “duty of those in charge of persons having dangerous propensities,” 234 Kan. at 564, 675 P.2d at 66, in holding that the State of Kansas had a duty to protect the injured police officer from the criminal acts of the escaped prisoners. Alabama has not adopted § 319 of the Restatement (Second) of Torts.

We agree with the Michigan Court of Appeals and the South Carolina Court of Appeals that state correctional officers owe a general duty to the public, not a duty to a specific person, to maintain custody of inmates. Chivas and Washington, supra. A duty of a state correctional officer to a specific person may arise only from a special relationship identified in Finley, 705 So.2d at 828, or the special circumstances identified in Saccuzzo, 646 So.2d at 596.

Thompson did not allege or establish by substantial evidence any special relationship between Warden Henry or correctional officers Haynes or Thomas on the one hand and the inmate Bennett on the other. Thompson asserted and proved only the general relationship between wardens and correctional officers and their assigned inmates: generally that wardens and correctional officers maintain custody of the inmates. Thus, Thompson did not establish the Finley alternative for liability that “(a) a special relation exists between the actor[s] [Henry, Haynes, or Thomas] and the third person [Bennett] which imposed] a duty upon the aetor[s] [Henry, Haynes, or Thomas] to control the third person’s conduct.” Finley, 705 So.2d at 828 (emphasis added). Nor did Thompson allege or prove that Henry, Haynes, or Thomas knew of Thompson individually or particularly or knew of any threats against her by Bennett before Bennett escaped and victimized her. Furthermore, Thompson did not allege or prove that Henry, Haynes, or Thomas knew or should have known that Bennett intended to escape, to break into a house, to assault the resident, and to steal the resident’s automobile. Consequently, Thompson failed to establish the other alternative Finley special relationship or the Saccuzzo special circumstances that could have imposed a duty on Henry, Haynes, or Thomas to protect Thompson from the criminal acts of Bennett.

The case before us is distinguishable from Luker v. City of Brantley, 520 So.2d 517 (Ala.1987). In Luker, this Court held that a police officer who apprehended an intoxicated driver owed a duty to others on the public ways not to allow the intoxicated driver to continue driving in that intoxicated state. See Tyler v. City of Enterprise, 577 So.2d 876 (Ala.1991). In the case before us, substantial evidence does not establish that any of the defendants knowingly released a person they knew to pose an immediate danger to virtually anybody he would encounter.

Accordingly, Warden Henry and correctional officers Haynes and Thomas were and are due a judgment grounded on the absence of a duty to Thompson.

For the reasons we have explained, the trial court erred in denying the summary judgment motion filed by the Department of Corrections and the individual defendants Henry, Haynes, and Thomas. Therefore, we reverse the denial and remand this cause to the trial court for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, C.J., and SEE and STUART, JJ., concur in the result.

      . "This Court has held that a Rule 5[, Ala. R.App. P.J petition is an appropriate means by which a State agency or employee can seek appellate review of an order denying a claim of immunity.” Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).

      “2 Other jurisdictions have similarly held that those who maintain custody of prisoners are not liable to individuals for damages caused by an escaped inmate under the public duty rule. See Department of Corrections v. McGhee, 653 So.2d 1091 (Fla.Dist.Ct.App.1995), aff'd, McGhee v. Department of Corrections, 666 So.2d 140 (Fla.1996); Chivas v. Koehler, 182 Mich.App. 467, 453 N.W.2d 264 (1990); Robinson v. Estate of Williams, 721 F.Supp. 806 (S.D.Miss.1989); Sebastian v. State of New York, 250 A.D.2d 260, 680 N.Y.S.2d 370 (1998).”


source: Caselaw Access Project

license: Public Domain

text:
    Thomas SIMON v. Anthony JACKSON and Carol Jackson.
    1011278.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Jerry M. Blevins, Montgomery, for appellant.
    C. Franklin Snowden III, Montgomery, for appellees.
   JOHNSTONE, Justice.

Thomas Simon appeals from a default judgment entered against him in favor of Anthony Jackson and Carol Jackson on their claim for money damages. We affirm.

Simon originally sued the Jacksons to evict them from certain premises they were occupying. The Jacksons counter-sued Simon for money damages on two theories. One was that he fraudulently misrepresented his title to the same property in negotiating a contract with the Jacksons for their purchase of the property. The other theory was that Simon negligently or wantonly failed to obtain good title to convey to the Jacksons.

After the Jacksons vacated the property, Simon’s eviction claim was dismissed as moot. Simon has not appealed that dismissal.

After the dismissal of Simon’s eviction claim, only the claims in the Jacksons’ countersuit remained pending. In the context of the countersuit, Simon was, of course, the defendant, and the Jacksons were the plaintiffs. This obvious alignment is noteworthy simply to correlate the parties in this case with the parties in cases this opinion will cite as authority. Simon appeals only the judgment entered against him as counterclaim defendant.

On appeal, Simon argues that the default judgment against him should be reversed on two grounds: first, that the trial court erred in denying Simon’s motion to dismiss the Jacksons’ counterclaim, and, second, that the trial court erred in denying Simon’s motion to set aside the default judgment. Because procedural considerations require that the judgment of the trial court be affirmed, the operative facts are purely procedural.

Simon’s first response to the Jacksons’ counterclaim was a motion to dismiss grounded on the failure of the counterclaim “to state a claim upon which relief can be granted,” Rule 12(b)(6), Ala. R. Civ. P. In an interlocutory order the trial court denied this motion to dismiss.

Simon then filed his answer to the Jack-sons’ counterclaim. The answer merely joined issue on the merits of the Jacksons’ two counterclaim theories by denying the allegations and demanding strict proof of each. Simon’s answer did not include as a defense the failure of the Jacksons’ counterclaim to state a claim on which relief could be granted.

Simon then failed to appear at the trial. After moving for entry of a default judgment against Simon, the Jacksons, by oral testimony, proved their damages. The Jacksons also introduced some evidence on some of the other elements of their theories. Thereupon, on October 18, 2001, the trial court entered judgment for $107,600 in compensatory damages against Simon and in favor of the Jacksons on their counterclaim. While the ease action summary and the separate judgment document, see Rule 58(a)(2), Ala. R. Civ. P., do not characterize the judgment as a default judgment, the parties and the trial judge have invariably treated it as a default judgment.

On November 19, 2001, a Monday, Simon filed a postjudgment motion for judgment as a matter of law or, alternatively, to alter, to amend, or to vacate the judgment. The motion was not denominated as a motion to set aside a default judgment. Simon’s original postjudgment motion contained two grounds:

“That on information and belief, Counter-Defendant asserts that the evidence presented at trial is insufficient to support the judgment and Counter-Defendant is entitled to a judgment as a matter of law.
“Alternatively, Counter-Defendant asserts that the judgment is due to be vacated because he did not receive notice of the setting of the counterclaim for trial.”

The postjudgment motion did not assert that the counterclaim failed to state a claim upon which relief could be granted. Nor did the postjudgment motion originally assert in any way or words that Simon had a meritorious defense.

With his postjudgment motion, Simon submitted his own affidavit swearing that he had not, either before or since he had been representing himself, received notice of the trial setting and that he had telephoned the circuit clerk’s office “and inquired as to the status of the case on at least three (3) separate oecasions[, and] [e]ach time [he] was not informed that a trial date had been set.” On December 7, 2001 Simon submitted the affidavit of Charles R. Sorwell, an assistant attorney general representing the Alabama Real Estate Commission (not a party to this appeal) in the litigation in the trial court. Like Simon, Sorwell swore that he had not received notice of the trial setting. Only on January 31, 2002, 105 days after the date the default judgment was entered, did Simon supplement his postjudgment motion by filing a third affidavit, another sworn by him, purporting to show that he had a meritorious defense to the Jacksons’ counterclaim.

We will first address Simon’s contention that the trial judge erred in denying Simon’s Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the Jacksons’ counterclaim. Because the Alabama Rules of Civil Procedure are derived from the corresponding federal rules, federal jurisprudence construing the rules is persuasive. City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981).

“[U]nless it affirmatively appears, not from what is omitted to be alleged, but from what is actually alleged, that there is no valid claim or defense, a failure to sustain a motion to dismiss or to strike may not in and of itself be assigned as reversible error. To preserve the point the moving party can, and in general is required, upon the trial to renew and support his pleaded objections by objection to evidence, and by requesting rulings and instructions from the Court to the jury which he deems necessary to protect and preserve the point asserted by his motion to dismiss or to strike.”

Mims v. Central Mfrs. Mut. Ins. Co., 178 F.2d 56, 59 (5th Cir.1949) (emphasis added).

“The reinstatement order was functionally identical to a denial of a motion to dismiss, and this effective refusal to grant a 12(b)(6) dismissal was followed by a final judgement after a trial on the merits. After a trial on the merits, the sufficiency of the allegations in the complaint is irrelevant. A district court must deny a motion to dismiss under Rule 12(b)(6) unless the complaint fails to state any set of facts upon which relief could be granted. Conley v. Gibson, 355 U.S. 41, 45-47, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). Rule 12(b)(6) measures the sufficiency of the plaintiffs allegations. When the plaintiff has prevailed after a full trial on the merits, a district court’s denial of a Rule 12(b)(6) dismissal becomes moot.”

Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir.1996) (emphasis added). We do not construe City of Huntsville v. Certain, 453 So.2d 715, 720 (Ala.1984), to the contrary. Certain reads:

“The City moved for directed verdict on each individual ‘claim within the § 1983 claim,’ including the claim that the above regulations were an unconstitutional infringement upon Certain’s rights. This motion was denied, and all claims were submitted to the jury, which was instructed to return a general verdict on the § 1983 claim if it found for the plaintiff. This it did. We hold that the court erred in denying the City’s motion for directed verdict on the plain tiffs claim that the Huntsville Police Department’s regulations violated the federal Constitution.
“In view of our holding that these regulations are not unconstitutional infringements upon Certain’s rights guaranteed under the United States Constitution and federal law, it was also error to deny the City’s earlier motion to dismiss for failure to state a claim upon which relief could be granted. This error, however, would have been harmless had the trial court granted the City’s motion for directed verdict.”

453 So.2d at 720. (Emphasis added, except first emphasis in second paragraph.) In Certain the defendant, as the Mims court advises, preserved the ground of its Rule 12(b)(6) motion by reasserting the ground at trial. The particular vehicle for preserving the ground at trial was the defendant’s motion for a directed verdict. The pertinent cardinal holding of Certain is that the trial court erred in denying the defendant’s motion for a directed verdict. We consider the subsequent Certain language that “it was also error to deny the [defendant’s] earlier motion to dismiss for failure to state a claim upon which relief could be granted,” id., to be, if not dictum, at best an unnecessary afterthought not developed at all in the opinion. Therefore, in the case now before us, because judgment has been entered upon a trial on the merits, the pretrial interlocutory ruling itself on Simon’s motion to dismiss — that is, the denial of the motion — is moot. Mims and Bennett, supra.

We do observe that Simon, in his original postjudgment motion, moved for judgment as a matter of law on the ground “that the evidence presented at trial is insufficient to support the judgment.” Simon, however, did not argue the sufficiency of the evidence to the trial court and does not argue the sufficiency of the evidence to us. Therefore, this ground is waived. See Porter v. Colonial Life & Ace. Ins. Co., 828 So.2d 907 (Ala.2002); Ex parte Martin, 775 So.2d 202 (Ala.2000); and Norman v. Bozeman, 605 So.2d 1210 (Ala.1992).

We will next address Simon’s contention that the trial court erred in denying Simon’s motion to set aside the default judgment. The hornbook law on such motions is Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988).

“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. Thus, the question sub judice is whether the trial court abused its discretion in denying [the defendant’s] motion to set aside the default judgment.”

Id. at 603 (citations omitted).

“[A] trial court’s broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 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 defaulting party bears the initial burden on two of these three factors: “we ... requir[e] the defaulting party to show 1) the existence of a meritorious defense and 2) an absence of willful conduct.” Id. “[W]hether the defendant has a meritorious defense,” id., is the dispositive factor in the case now before us.

We need not decide whether Simon’s January 31, 2002 affidavit meets the Kirt- land, 605-06, substantive criteria for showing a meritorious defense. The deadline for moving to set aside a default judgment is “thirty (30) days after the entry of the judgment.” Rule 55(c), Ala. R. Civ. P. Accord Kirtland, 524 So.2d at 604. While Simon filed his postjudgment motion in its original form just before the expiration of the deadline for filing a Rule 55(c) motion to set aside a default judgment, he did not even broach the subject of a meritorious defense until he filed this last affidavit 105 days after entry of the default judgment and 73 days after the deadline. (The deadline was extended two calendar days because the thirtieth calendar day after judgment was a Saturday. Rule 6, Ala. R. Civ. P.) While we question whether a post-judgment motion which does not even broach the subject of a meritorious defense before the expiration of the Rule 55(c) deadline can be deemed a timely Ride 55(c) motion at all, the length of Simon’s delay and the discretionary prerogative of the trial judge obviate our deciding this precise question.

At some point a party’s right to a trial on the merits yields to everybody’s right to prompt justice. We cannot hold that the trial judge in this case abused his discretion by disregarding a showing of a meritorious defense not filed until 73 days after the Rule 55(c) deadline. Because the defaulting party’s showing of a meritorious defense is one of the prerequisites to an order setting aside a default judgment, Kirtland, 524 So.2d at 605-06, we likewise cannot hold that the trial judge abused his discretion by denying Simon’s post-judgment motion.

AFFIRMED.

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

STUART, J., concurs in the result.

WOODALL, J., dissents.


author: JOHNSTONE, Justice. SEE, Justice

text:
    Ex parte David WEBB. (In re David Webb v. William E. Penney, Sr.)
    1000651.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Duane F. Gordon, Huntsville, for petitioner.
    George W. Royer, Jr., Jeffrey T. Kelly, and Kenneth D. Graves of Lanier Ford Shaver & Payne, P.C., Huntsville, for respondent.
   JOHNSTONE, Justice.

Petitioner-plaintiff David Webb petitions this Court for a writ of mandamus directing Judge Bruce E. Williams of the Madison County Circuit Court to vacate his order compelling Webb to arbitrate his claims against defendant William E. Penney, Sr. We grant the petition and issue the writ.

On December 7, 1999, Webb signed an application for employment with Bill Penney Motor Company, Inc. That application contained an arbitration provision:

“I UNDERSTAND THAT IT IS A CONDITION OF MY EMPLOYMENT WITH THIS COMPANY THAT I AGREE TO SETTLE ANY DISPUTE ARISING OUT OF MY EMPLOYMENT THROUGH BINDING ARBITRATION RATHER THAN THROUGH A LAWSUIT, AND THAT BY ACCEPTING EMPLOYMENT WITH THIS COMPANY I AM WAIVING MY RIGHT TO A JURY TRIAL IN THESE MATTERS.” (Capitalization original.)

As a condition of employment with Bill Penney Motor Company, Webb signed a separate document entitled “ALTERNATIVE DISPUTE RESOLUTION AGREEMENT BY BINDING ARBITRATION,” which states:

“EMPLOYER: BILL PENNEY MOTOR COMPANY INC.
“EMPLOYEE: David G. Webb
“The Employer and the Employee mutually covenant, stipulate and agree, in connection with the Employer’s employment of the employee and the resolution of any dispute arising out of such employment, as follows: That the Employer operates a business which involves and effects [sic] interstate commerce. That the Employee’s activities while engaged by the Employer will involve and effect [sic] interstate commerce. Accordingly, the Employer and the Employee mutually agree that all disputes not barred by applicable statute of limitations or otherwise barred by law, resulting from or arising out of said employment (including but not limited to: the enforceability of this agreement, the terms of this agreement; the benefits and conditions of employment, including all fringe benefits associated therewith; the relationship between the Employer and Employee and other Employees of the Employer; the working conditions while employed; the terms manner and conditions of termination (voluntary and involuntary); the Employer’s compliance with any state and/or federal employment and civil rights rules, regulations and laws; the terms herein contained, including but not limited to their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning or arising out of said employment; that the Employer and Employee mutually stipulate and agree to submit such dispute(s) to BINDING ARBITRATION, pursuant to the provisions of 9 U.S.C. Section 1, et. seq and according to the Commercial Rules of the American Arbitration Association then existing in the county where the dealer maintains its principal place of business, except as follows: (1) The arbitrator empaneled to arbitrate this matter shall be selected by the Employer, with the consent of the Employee, which consent shall not be unreasonably withheld. In the event the Employee refuses to consent to any selection made by the Employer, then the Employer shall select an arbitrator, the Employee select an arbitrator and the two arbitrators so selected shall select a third arbitrator. (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 original.)

Bill Penney Motor Company employed Webb in its “cleanup shop.”

On April 27, 2000, Penney, the president of Bill Penney Motor Company, allegedly struck Webb in the face when Webb refused to clean Penney’s personal automobile. On August 16, 2000, Webb sued Penney for assault and battery and for the tort of outrage. Relying on the separate arbitration agreement and the arbitration provision in the employment application signed by Webb, Penney moved to compel Webb to arbitrate his claims against Penney. In support of his motion to compel arbitration, Penney submitted an affidavit by Tim Rousell, the general manager of Bill Penney Motor Company, stating, in pertinent part:

“I have personal knowledge of the information contained in this affidavit.
“2. Defendant William E. Penney, Sr. is the president and 67% owner of Bill Penney Motor Company, Inc. Bill Penney Motor Company, Inc. is a corporation organized under the laws of the State of Alabama, and is engaged in the business of buying and selling new and used automobiles, of servicing automobiles for retail sale and of selling automobile parts.
“3. Specifically, Bill Penney Motor Company, Inc. purchases new and used vehicles and automobile parts for resale from out-of-state suppliers and vendors. Bill Penney Motor Company, Inc. also sells new and used vehicles to persons and other entitles residing outside of the State of Alabama. Bill Penney Motor Company, Inc. also sells parts to persons and entities residing outside of the State of Alabama. Furthermore, Bill Penney Motor Company, Inc. advertises for potential customers outside of the State of Alabama. Bill Penney Motor Company, Inc. also maintains a web site on the World Wide Web. On this web site, customers throughout the United States may obtain online financing, schedule service, order replacement parts, as well as obtain information on current discounts and incentives.
“4. To both facilitate these transactions and its business generally, Bill Penney Motor Company, Inc., employs persons in its ‘clean up shop’ to clean new and used automobiles sold by Bill Penney Motor Company, Inc. in the course of its business. Plaintiff David Webb was employed by Bill Penney Motor Company, Inc. in its ‘clean up shop.’ The matters at issue in this lawsuit between David Webb and Bill Penney, Sr. occurred at the ‘clean up shop’ at Bill Penney Motor Company, Inc., and occurred while David Webb was engaged in his employment at the ‘cleanup shop.’
“5. As a condition of David Webb’s employment with Bill Penney Motor Company, Inc., Webb agreed to settle any dispute arising out of his employment through binding arbitration rather than through a civil lawsuit. An arbitration agreement executed by David Webb specifically includes and provides for arbitration of all disputes ‘arising from or relating to ... the relationship between the Employer and Employee and other Employees of the Employer.’...
“6. In addition to the arbitration agreement signed by David Webb ..., David Webb also signed a separate arbitration agreement in connection with his application for employment at Bill Penney Motor Company, Inc.... In this arbitration agreement, David Webb agreed that as a condition of his employment with Bill Penney Motor Company, Inc., he ‘agree[ed] to settle any disputes arising out of his employment through binding arbitration rather than through a lawsuit...

Although Webb interposed several objections to Penney’s motion to compel arbitration, the trial judge granted it and stayed the case “pending the completion of the arbitration process.”

“A petition for the writ of mandamus [was] the appropriate means by which to challenge a trial court’s order compelling arbitration.” Ex parte Hood, 712 So.2d 341, 343 (Ala.1998). Compare Rule 4(d), Ala. R.App. P. (providing that on and after October 1, 2001, review of an order compelling arbitration, like review of an order denying arbitration, is by appeal). “[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).

Webb states these issues for our review:

“I. WHETHER OR NOT THE CONTRACT IN QUESTION HAS A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE.
“II. WHETHER WILLIAM PENNEY, SR. CAN ENFORCE AN ARBITRATION AGREEMENT BETWEEN BILL PENNEY MOTOR COMPANY, INC. AND DAVID WEBB WHEN WILLIAM PENNEY, SR. IS NOT A SIGNATORY TO THE ARBITRATION AGREEMENT.
“HI. WHETHER THE SCOPE OF THE ARBITRATION AGREEMENT IN QUESTION SHOULD ENCOMPASS THE INTENTIONAL TORTS OF ASSAULT AND BATTERY/OUTRAGE.
“IV. WHETHER OR NOT THE ARBITRATION AGREEMENT IN QUESTION IS UNCONSCIONABLE.”

Our conclusion on Webb’s first issue pre-termits the remaining three.

Unless a contract containing arbitration provisions, or unless a transaction evidenced by such a contract, substantially affects interstate commerce, the Federal Arbitration Act does not govern the contract and does not preempt § 8-1-41(3), Aa.Code 1975, which prohibits specific enforcement of a pre-controversy “agreement to submit a controversy to arbitration.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999).

“[T]he party moving for arbitration has the burden of proving the existence of a contract containing an arbitration clause, in a transaction that substantially affects interstate commerce. See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 765 (Ala.2000). If the party moving to compel arbitration fails to make such a showing, the burden of proof does not shift to the opposing party and the motion should be denied.”

Ex parte Greenstreet, Inc., 806 So.2d 1203, 1207 (Ala.2001).

“The FAA renders enforceable any ‘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, ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal_’9 U.S.C. § 2-Thus, on its face, the FAA applies only to ‘transactions, ‘contracts, ’ and ‘controversies.’
“The FAA defines ‘transactions’ in the maritime context, as including ‘charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters ... which, if the subject of controversy, would be embraced within admiralty jurisdiction.’ 9 U.S.C. § 1.... The FAA focuses on the narrow concepts of acts, omissions, or agreements, not on the broader concepts on which the Bank focuses, such as the nature of the parties’ businesses or the general ‘course of dealings between the parties.’ Thus, the facts that the Bank ‘routinely conducts business in interstate commerce’; that Alafabco owns and uses materials ‘manufactured outside the state of Alabama’; and that Alafabco operates its business with funds borrowed from the Bank cannot support arbitrability of this dispute.
“Moreover, under §§ 1 and 2, the FAA applies only where the transaction affecting interstate commerce is the ‘subject of [the] controversy.’ ...
“The Bank argues that involvement of the various forms of communication recited in Campbell’s affidavit, such as the United States Postal Service ‘and other methods of communication,’ as well as the existence of federal regulations governing loan transactions and deposits in general, can support arbitrability. We disagree with this argument also.
“The interstate communications services and sundry federal regulations on which the Bank seeks to rely touch this transaction so remotely and tangentially as to warrant no consideration. Holding that a transaction is subject to the FAA simply by virtue of the ordinary use of interstate communication media in its furtherance, or by Congressional regulation of some aspect of one party’s business, would effectively transform every ‘local’ transaction into a ‘national’ one. As Sisters of the Visitation points out, such an approach is impermissible under our federal system of government. 775 So.2d at 767 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).”

Alafabco, Inc. v. Citizens Bank, [Ms. 1010703, August 30, 2002] — So.2d -, - (Ala.2002) (emphasis added).

The facts that Bill Penney Motor Company “purchases new and used vehicles and automobile parts for resale from out-of-state suppliers and vendors,” “sells new and used vehicles to persons and other entities residing outside of the State of Alabama,” “sells [automotive] parts to persons and entities residing outside of the State of Alabama,” “advertises for potential customers outside of the State of Alabama,” and “maintains a web site on the World Wide Web” for the use of “customers throughout the United States” do not impart to Webb’s contract or transaction a substantial effect on interstate commerce. These contracts or transactions are distinct and separate from Webb’s employment contract and the transactions it evidences. “Indeed, these factors are largely irrelevant to an FAA interstate-commerce analysis.” Alafabco, — So.2d at -.

The parties to the contract containing the arbitration provisions were an Alabama natural person, Webb, and an Alabama domiciliary corporation, Bill Penney Motor Company. The transaction evidenced by the contract was Webb’s performing menial chores in a cleanup shop in Alabama. The alleged assault cannot be deemed a transaction evidenced by Webb’s employment contract. Bill Penney Motor Company has not submitted any evidence that Webb’s employment or chores substantially, or even detectably, affected any of the contracts or transactions between Bill Penney Motor Company and persons or entities outside Alabama.

Penney has failed to make the requisite prima facie showing of a substantial effect on interstate commerce and thus has failed to shift to Webb the burden of proving either that the contract or transaction did not substantially affect interstate commerce or that the parties did not make the contract in the first place or that some other defect or circumstance foreclosed the enforcement of the arbitration provisions. Ex parte Greenstreet, supra. Therefore, the learned trial judge should not have entered his order compelling arbitration, id., and we must issue our writ directing that the order be vacated.

WRIT ISSUED.

HOUSTON, LYONS, HARWOOD, and WOODALL, JJ., concur.

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

SEE, BROWN, and STUART, JJ., dissent.

SEE, Justice

(dissenting).

I respectfully dissent from the majority opinion, which grants Webb’s petition for the writ of mandamus and directs the trial court to vacate its order compelling arbitration.

I.

This case involves the enforceability of an arbitration provision in an employment agreement. David Webb argues, and the majority of the Court agrees, that the Federal Arbitration Act (“the FAA”) does not apply to this employment agreement because, he argues, neither the agreement nor the transaction it evidences has a substantial effect on interstate commerce. However, the United States Supreme Court, in Circuit City Stores, Inc. v. Adams, 582 U.S. 105, 113-14, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), held that if “there is an argument to be made that arbitration agreements in employment contracts are not covered by the [FAA], it must be premised on the language of the § 1 exclusion provision itself.” That is, the FAA applies to all contracts of employment, except those contracts that involve transportation workers. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1314 (11th Cir.2002). Therefore, I submit that it is unnecessary in this case for the Court to reach the interstate-commerce analysis in order to determine that the FAA governs Webb’s employment agreement.

Even applying an interstate-commerce analysis, if it were necessary to do so, I disagree with the conclusion of the main opinion that this dispute need not be submitted to arbitration because, the opinion asserts, Bill Penney failed to submit any evidence indicating that Webb’s employment in Bill Penney Motor Company’s cleanup shop affected that company’s interstate transactions. This Court has held that “ ‘to prevail on an assertion of arbitra-bility, the moving party is required to produce some evidence which tends to establish its claim,’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995) (opinion on application for rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)), and “ ‘has the burden of proving the existence of a contract calling for arbitration and proving that that 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)(emphasis added)). Although the chores Webb performed in the cleanup shop were menial, Penney submitted evidence indicating that those chores were an essential step in the Company’s eventual sale of new and used vehicles to persons or entities outside of Alabama. The affidavit Penney submitted in support of his motion to compel arbitration states, in part:

“3. Specifically, Bill Penney Motor Company, Inc. purchases new and used vehicles and automobile parts for resale from out-of-state suppliers and vendors. Bill Penney Motor Company, Inc. also sells new and used vehicles to persons and other entities residing outside of the State of Alabama....
“4. To both facilitate these transactions and its business generally, Bill Penney Motor Company, Inc., employs persons in its ‘clean up shop’ to clean new and used automobiles sold by Bill Penney Motor Company, Inc. in the course of its business. Plaintiff David Webb was employed by Bill Penney Motor Company, Inc. in its ‘clean up shop.’

(Emphasis added.)

The FAA provides in pertinent part that “a contract evidencing a transaction involving commerce ... shall be valid.... ” 9 U.S.C. § 2 (emphasis added). I believe that Penney’s affidavit provides the requisite “some evidence which tends to establish [Penney’s] claim” that Webb’s employment affected interstate commerce. See Allied-Brace Terminix Cos. v. Dobson, 513 U.S. 265, 274, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (interpreting the term “involving commerce” as the “functional equivalent” of the phrase “affecting commerce”). Therefore, Webb’s employment contract is properly reached by the FAA.

II.

Having concluded that the arbitration agreement is within the reach of the FAA, I turn to the remaining issues that Webb presents on appeal.

A.

Webb argues that Penney lacks standing to compel arbitration, because Penney is not a signatory to the arbitration agreement, and that Webb’s claims of assault, battery, and the tort of outrage fall outside the scope of the arbitration agreement. Both questions are properly addressed to the arbitrator for resolution.

“Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, ... so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakeabl[e]’ evidence that they did so.” 514 U.S. at 944, 115 S.Ct. 1920.

Webb argues that Penney lacks standing to compel arbitration because Penney is not a signatory to the arbitration agreement. The arbitration agreement signed by Webb in this case states that the parties agreed to arbitrate all disputes “resulting from or arising out of [Webb’s] employment (including but not limited to: the enforceability of this agreement, the terms of this agreement; ... the terms herein contained, including but not limited to their breadth and scope ...).” In Oakwood Acceptance Corp. v. Hobbs, 789 So.2d 847, 850 (Ala.2001), the arbitration agreement similarly provided that “[a]ny challenges to the validity or enforceability of this Agreement shall be determined by the arbitrator(s).” Relying on this language, this Court held that third-party standing to enforce the arbitration agreement is a question to be decided by the arbitrator.

In Ex parte Waites, 736 So.2d 550, 551 (Ala.1999), the arbitration provision stated that the parties agreed to arbitrate any disputes “resulting from or arising out of the sale transaction entered into (including but not limited to: the terms of th[e] agreement ... [and] their breadth and scope ...).” We concluded that this language expressed a clear intent of the parties to arbitrate the issue of arbitrability.

In this case, the arbitration agreement states that the parties agreed to arbitrate all disputes “resulting from or arising out of [Webb’s] employment (including but not limited to: the enforceability of this agreement, the terms of this agreement; ... the terms herein contained, including but not limited to their breadth and scope ...).” (Emphasis added.) This language is substantially the same as the language in the arbitration agreements in Hobbs and Waites, which this Court held evidenced a clear intention to arbitrate the question of the arbitrability of the dispute. Therefore, Penney’s standing to enforce the arbitration agreement between Webb and Bill Penney Motor Company and the scope and breadth of that agreement are issues for the arbitrator, not this Court, to decide.

B.

Webb also argues that the arbitration agreement he signed is unconscionable because, under the terms of the agreement, he is responsible for paying the costs of the arbitration proceedings, but he says he cannot afford to pay those costs. Alabama contract law does not excuse a party’s performance solely on the ground of financial hardship; therefore, evidence of Webb’s limited financial means, without more, does not justify a finding that the arbitration agreement is unconscionable. Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 37 (Ala.1998). Moreover, I note from the trial court’s order that Penney has agreed to pay the costs of the arbitration proceedings. Therefore, Webb’s claim that the arbitration agreement is unconscionable simply because of his financial hardship lacks merit.

III.

This matter comes before us on a petition for the writ of mandamus. Mandamus is an extraordinary writ, and one petitioning for it must show (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). Based on the above, Webb has not shown a clear legal right to have the trial court vacate its order compelling arbitration; therefore, I would not issue the writ.

BROWN, J., concurs.

      . This petition for a writ of mandamus was filed before the May 10, 2001 amendment to Rule 4, Ala. R.App. P., effective October 1, 2001. By that amendment, an order granting or denying a motion to compel arbitration is reviewable by appeal. Because Webb appealed before October 1, 2001, we treat his appeal as a petition for a writ of mandamus, as we did in Henderson v. Superior Ins. Co., 628 So.2d 365 (Ala.1993).

      . "[T]his Court can affirm the ruling of a trial court for any valid reason, even one not presented to or considered by the trial court.” Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79, 81 (Ala.2000). This long-standing principle of appellate review does not offend notions of due process and fairness because it is the appellant who has an affirmative duty of showing error upon the record. See Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). Moreover, because Circuit City, supra, speaks directly to the scope and breadth of the FAA— issues that the parties argued in the trial court and in their briefs on appeal — Webb had ample notice that Circuit City could affect this Court's disposition of his petition.


author: WOODALL, Justice.

text:
    Linda H. SMITH, as executrix of the estate of Lee O’Dell Smith, deceased v. YANMAR DIESEL ENGINE COMPANY, LTD.
    1011699.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      David H. Marsh, Jeffrey C. Rickard, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    James B. Carlson and Katie Loggins Vreeland of Sirote & Permutt, P.C., Birmingham; and Richard H. Rubenstein of Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., New York City, New York, for appellee.
   WOODALL, Justice.

Linda H. Smith appeals from a summary judgment in favor of Yanmar Diesel Engine Company, Ltd. (“Yanmar”), a Japanese corporation, in her wrongful-death action against Yanmar based on the death of her husband, Lee O’Dell Smith. We reverse and remand.

This dispute arises out of an accident on January 1, 2000, in which Lee Smith was fatally injured by the rollover of a tractor manufactured and initially sold in Japan by Yanmar. “At some point in time after its initial sale and use in Japan,” according to Yanmar, “the tractor came into the possession of defendant Sanko Industries (‘Sanko’), an exporter of used Japanese tractors, having no affiliation with [Yanmar].” (Memorandum of Law in Support of Yanmar’s Motion for Summary Judgment.) “The used tractor was then sold to Gordon E. Maynard Tractor and Farm Equipment (‘Maynard’) in Brownsboro, Alabama, in 1999.” Id. In a complaint filed on September 11, 2000, against Yanmar, Gordon E. Maynard Tractor and Farm Equipment (“Maynard”), Sanko Industries, and others, Smith sought damages for the wrongful death of her husband on theories of negligence, wantonness, breach of warranty, and violation of the Alabama Extended Manufacturer’s Liability Doctrine.

In its answer to the complaint, Yanmar challenged the Madison Circuit Court’s exercise of in personam jurisdiction over it. On February 27, 2002, Yanmar moved for a summary judgment on the sole ground that its contacts with Alabama were insufficient to subject it to the jurisdiction of the courts of this state. More specifically, it alleged that the tractor on which Smith was killed was a “gray-market” product, which has been defined as a product that is “imported without the knowledge or approval of a manufacturer into a market that the manufacturer serves, at a greatly reduced price.” Mid-America Tire, Inc. v. PTZ Trading Ltd., 95 Ohio St.3d 367, 370, 768 N.E.2d 619, 624 (2002). See also Black’s Law Dictionary 983 (7th ed.1999) (“gray-market” products include “‘goods produced abroad with authorization and payment but which are imported into unauthorized markets’ ” (quoting Ralph H. Folsom & Michael W. Gordon, International Business Transactions § 20.8 (1995))). Thus, Yanmar argued: “[It] did not ‘purposefully avail’ itself of the Alabama market with respect to tractors designed for the domestic market in Japan. The unilateral actions of Sanko and Maynard in bringing the subject tractor into Alabama cannot create the ‘minimum contacts’ between [Yanmar] and Alabama necessary for jurisdiction.”

On April 10, 2002, Smith filed, pursuant to Ala. R. Civ. P. 56(f), a “Motion to Deny or Continue Yanmar’s Motion for Summary Judgment so that Further Discovery May Be Had by Plaintiff’ (the “Rule 56(f) motion”). In the Rule 56(f) motion, Smith asserted:

‘Yanmar contends that it should not be subject to personal jurisdiction in this case involving a used, ‘gray market’ tractor that Yanmar did not directly move to market in Alabama. Mrs. Smith anticipates that the outstanding subpoenas and other discovery including deposition testimony of Yanmar affiants will provide evidence showing: (1) that Yanmar was aware of the fact that used Yanmar tractors (including the tractor sub judice) were being sold in Alabama; (2) that Yanmar sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama for those used, ‘gray market’ tractors.”

At the untranscribed hearing on Yan-mar’s motion for a summary judgment, Yanmar admittedly stipulated (1) that “[a]t the time of the subject accident, Yanmar] was aware of the fact that used Yanmar tractors (including the tractor sub judice) were being sold in Alabama”; and (2) that Yanmar “sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama for those used, ‘gray market’ tractors.” Yanmar’s Brief, at 3.

On May 14, 2002, the trial court granted the summary-judgment motion and certified it as a final judgment, pursuant to Ala. R. Civ. P. 54(b). On May 24, 2002, the court expressly denied the Rule 56(f) motion. From the summary judgment, Smith appealed.

On appeal, Smith contends that the trial court erred in entering a summary judgment over the objections raised in her Rule 56(f) motion, and that summary judgment was inappropriate in any event. Yanmar does not challenge the procedural, or substantive, sufficiency of the affidavit of Jeffrey C. Rickard, one of Smith’s attorneys, offered in support of her Rule 56(f) motion, or of Smith’s Rule 56(f) motion itself. Instead, Yanmar argues that its stipulation rendered moot Smith’s Rule 56(f) motion. More specifically, it contends that its stipulation obviated any need for additional discovery, citing Stallworth v. AmSouth Bank, 709 So.2d 458, 468 (Ala.1997) (the nonmoving party must demonstrate that matters it seeks by further discovery are “crucial” to its case). Thus, the resolution of this case turns on the legal effect of the stipulation, in the context of the standard of review applicable to a summary judgment.

In Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., [Ms. 1011586, February 21, 2003] — So.2d - (Ala.2003), also released today, this Court stated:

“‘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 (1980)).
“Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 728 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, 731 (Ala.2002)] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112 (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 (1985)).”

— So.2d at-.

It has been rightly observed that “a motion to dismiss is a more appropriate procedural vehicle for resolving personal jurisdiction issues than a motion for summary judgment.” Bechard v. Constanzo, 810 F.Supp. 579, 581 (D.Vt.1992). Nevertheless, “where the personal jurisdiction issue is resolved on summary judgment, it is the moving party’s burden to establish that there is no genuine issue of material fact, and an entitlement to prevail as a matter of law.” Hudson Drydocks Inc. v. Wyatt Yachts Inc., 760 F.2d 1144, 1146 (11th Cir.1985) (emphasis added); see also Lakeside Equip. Corp. v. Town of Chester, 173 Vt. 317, 795 A.2d 1174, 1179 (2002).

This rule is consistent with the summary-judgment procedure generally. That procedure is well settled:

“ ‘On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact ... and that the movant is entitled to a judgment as a matter of law.’ Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996). Only after such a showing has been made does the burden ‘shift to the opposing party to establish a genuine issue of material fact.’ Id.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).”

Weldon v. Cotney, 811 So.2d 530, 534 (Ala.2001) (plurality opinion).

The issue presented in Yanmar’s motion was whether it had “such contacts with Alabama that it ‘ “should reasonably anticipate being haled into court [here].” ’ ” Ex parte Dill, — So.2d at -(quoting Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986)). The resolution of this issue requires a penetrating analysis of the “quality and quantity of [those] contacts,” id. at - (emphasis added).

Yanmar stipulated that it “sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama.” This is a broad, general assertion that suggests the possibility, at least, of substantial contacts with Alabama. Depending on the pervasiveness of those sales and related activities, such contacts could well constitute the sort of “continuous and systematic” activity necessary to confer on Alabama courts general jurisdiction. In other words, the stipulation essentially conceded the existence of a genuine issue of material fact, making a summary judgment inappropriate.

This concession obviated Smith’s burden to produce evidence to establish a factual dispute. Otherwise stated, because Yan-mar failed to “make a prima facie showing that there is no genuine issue of material fact,” the burden never shifted to Smith, the nonmovant, to “establish a genuine issue of material fact.” Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996). The trial court erred, therefore, in entering the summary judgment for Yan-mar.

For these reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ., concur.

      . Rule 56(f) states:
      "Should it appear from the affidavits of a party opposing the [summary-judgment] motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
      Smith supported her motion with an affidavit of Jeffrey C. Rickard, one of her attorneys.


author: STUART, Justice.

text:
    Troy NELSON v. The ESTATE OF Burton J. FREDERICK.
    1012107.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Russell A. McGill of Thiry & Caddell, Mobile, for appellant.
    M. Warren Butler and Kathryn M. Ci-gelske of Lyons, Pipes & Cook, P.C., Mobile, for appellee.
   STUART, Justice.

The appellant Troy Nelson appeals the circuit court’s summary judgment entered in favor of the estate of Burton J. Frederick and the court’s failure to appoint an administrator ad litem for Frederick’s estate. The court entered a summary judgment for Frederick’s estate on the ground that when the limitations period on Nelson’s cause of action expired, which the trial court held was six months after Frederick’s death, no valid action was pending. Nelson asserts that the circuit court erred in entering the summary judgment because, he argues, a valid action was filed before the statute of limitations ran; he further asserts that the court erred in failing to appoint an administrator ad li-tem. We agree.

Facts

Nelson and Frederick were involved in an automobile accident on March 1, 2000. On March 13, 2001, Frederick died from causes unrelated to the accident. On March 1, 2002, Nelson sued Frederick, seeking damages for personal injuries arising out of the accident. An answer was filed on behalf of Frederick on March 29, 2002, denying the essential allegations of the complaint and asserting numerous defenses, including that Nelson’s complaint failed to state a claim upon which relief could be granted and that the complaint was filed more than six months after Frederick’s death, which the estate argued was beyond the statutory limitations period.

On April 19, 2002, Frederick’s estate filed a motion to dismiss the action, based upon Frederick’s death on March 13, 2001. The motion to dismiss asserted that because Frederick had died approximately a year before the action was filed Nelson did not have a valid claim before the court. On May 14, 2002, Nelson’s workers’ compensation carrier filed a motion to intervene because, as Nelson’s workers’ compensation carrier, it had paid medical benefits to Nelson. The trial court granted the motion.

Nelson responded to the motion to dismiss on June 17, 2002, and requested leave of court to amend his complaint to name the administrator of Frederick’s estate as the defendant or, if there was no administrator, requested the court to appoint an administrator ad litem. Oral argument on the motion to dismiss was held on June 18, 2002. On the same day the court issued an order treating the motion to dismiss as a motion for a summary judgment because it presented matters outside of the pleadings, specifically Frederick’s death certificate. The court found that because Frederick had died before Nelson filed his action no valid action was pending at the time the statutory limitations period expired. The court entered a summary judgment in favor of Frederick’s estate.

Nelson appealed to this Court on August 12, 2002, and on August 22, 2002, petitioned the probate court to appoint an administrator for Frederick’s estate. On August 29, 2002, the circuit court appointed an administrator ad litem, based upon a motion filed by Nelson’s workers’ compensation carrier, and found that the carrier had a valid claim against Frederick’s estate. On September 11, 2002, because all claims had not been adjudicated below, we remanded the case for the circuit court either to certify its judgment as final in accordance with Rule 54(b), Ala.R.Civ.P., or to take no action, in which event the appeal would be dismissed.

On September 13, 2002, the court revised its June 18, 2002, summary-judgment order and certified it as final pursuant to Rule 54(b). This ruling disposed of all issues between Nelson and Frederick’s estate. However, the workers’ compensation carrier’s claim remained and the proceedings on that claim were stayed pending the outcome of Nelson’s appeal to this Court. On September 18, 2002, the court amended its August 29, 2002, order, again finding that the carrier had a valid claim against Frederick’s estate and appointing an administrator ad litem to represent Frederick’s interest.

Standard of Review

This Court reviews a summary judgment de novo. Walker v. City of Montgomery, 833 So.2d 40 (Ala.2002). We review the same evidence the trial court considered in determining whether there is a genuine issue of material fact and whether the movant is entitled to a judgment as a matter of law. Id. Rule 56, Ala.R.Civ.P. We must also review the evidence in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Walker, 833 So.2d at 43; Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990); see also Winston County School Bd. v. Haleyville City School Bd., 738 So.2d 886, 889 (Ala.1999).

The movant has the burden of showing material facts that entitle it to a judgment as a matter of law. Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1996). Once the movant meets that burden, the burden shifts to the nonmov-ant to present substantial evidence creating a genuine issue of material fact. Id.‘Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

Issues and Analysis

Nelson raises two main issues. The first issue is whether the circuit court erred in entering the summary judgment in favor of Frederick’s estate. This broad issue encompasses two subissues — whether the court erred in finding that there was no valid pending action at the time the statutory limitations period expired because Frederick had died before Nelson filed his claim and whether the court erred in converting Frederick’s motion to dismiss into a motion for a summary judgment. The second main issue raised by Nelson is whether the circuit court erred in failing to appoint an administrator for Frederick’s estate.

We conclude that Nelson’s claim was valid when it was filed and that the statutory limitations period on Nelson’s cause of action did not expire until September 1, 2002. We also conclude that the circuit court erred in failing to appoint an administrator ad litem upon Nelson’s request in his opposition to the defendant’s motion to dismiss. Therefore, the circuit court erred in entering a summary judgment in favor of Frederick’s estate.

1. Whether there was a valid action pending on the date the statute of limitations expired, thus justifying summary judgment against Nelson.

The statute of limitations for personal-injury actions is two years. § 6-2-38(Z), Ala.Code 1975. A cause of action accrues when a party suffers an injury or loss or damage entitling him or her to maintain an action. Jones v. Blanton, 644 So.2d 882, 887 (Ala.1994). Personal-injury claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor, so long as the claim is not of an equitable nature. § 6-5-462, Ala.Code 1975; Standard Accident Ins. Co. v. Whitset, 270 Ala. 334, 118 So.2d 922, 923 (1960).

When a tortfeasor dies, the time between his death and the granting of letters of administration, not to exceed six months, is not to be used in computing the statutory period of limitations by or against the executor or administrator. § 6-2-14, Ala.Code 1975. We have interpreted this Code section to mean that the running of the limitations period is tolled for a period up to, but not exceeding, six months. Sanders v. Martin, 662 So.2d 241, 245 (Ala.1995); Jones v. Blanton, 644 So.2d 882, 887 (Ala.1994); Edwards v. Vanzant, 492 So.2d 990, 992 (Ala.1986); Allen v. Elliott, 67 Ala. 432 (Ala.1880).

Nelson’s cause of action accrued on March 1, 2000, the date of the accident. Without considering the tolling period activated by Federick’s death, the statutory limitations period for Nelson’s personal-injury action would have expired on March 1, 2002. In entering the summary judgment, the circuit court concluded that when Frederick died on March 13, 2001, Nelson’s claim ceased to exist. However, this holding was incorrect; personal-injury claims survive against the personal representative of a deceased tortfeasor, even when no action has yet been filed. § 6-5-462, Ala.Code 1975. Therefore, Nelson’s claim was valid as against Frederick’s estate on the date it was filed — March 1, 2002.

Moreover, § 6-2-14, Ala.Code 1975, tolls the statute of limitations on an action for up to six months “between the death of a person and the grant of letters testamentary or of administration.” We do not interpret this Code section to mean, as Frederick’s estate urges, that Nelson had six months after Frederick’s death — or until September 13, 2000 — within which to file the action. We interpret this statute to mean precisely what it says, that the statute of limitations is tolled during the period between the death of the tortfeasor and the appointment of an administrator, but that that tolling period is not to exceed six months. See Allen v. Elliott, supra (detailed computation of the statutory limitations period under the predecessor statute to § 6-2-14, Ala.Code 1975).

When § 6-5-462 and § 6-2-14, Ala. Code 1975, are read together, it is evident that when a person dies the claim against the personal representative of the decedent survives, and the statute of limitations is tolled for up to six months to allow the representative to sue or be sued in the decedent’s name. Consequently, Nelson had until September 1, 2002, to file his claim against Frederick’s personal representative. Thus, the circuit court prematurely entered the summary judgment on June 18, 2002.

Frederick’s estate asserts that because Frederick was dead when Nelson filed his action against Frederick, Nelson did not have a valid claim. Frederick’s estate bases this assertion upon this Court’s ruling in Sanders v. Martin, 662 So.2d 241 (Ala.1995). Frederick’s estate, however, has misinterpreted the holding of Sanders. In Sanders, the plaintiff sued two defendants, only one of whom had died before the claim was filed. 662 So.2d at 242. We held that Sanders’s amended complaint, adding the administrator of the deceased party, did not relate back to the date of the original filing. 662 So.2d at 245. The difference between Sanders and this case is that Sanders’s amended complaint was filed four months after the limitations period had expired. Even with the tolling of the limitations period pursuant to § 6-2-14, Sanders’s amended claim was barred because it was filed 2 years and 10 months after the action accrued.

Thus Sanders stands for the proposition that under § 6-2-14, Ala.Code 1975, an amended complaint naming as a defendant the administrator of a decedent’s estate filed after the limitations period — including the six months allowed by § 6-5-462 and § 6-2-14 — has run does not relate back. Therefore, Nelson had until September 1, 2002, at the latest, depending upon when the letters of administration were issued, to amend his complaint to name the administrator of Frederick’s estate as the defendant.

We conclude that because Nelson’s claim was valid when it was originally filed and up to six months thereafter as against Frederick’s personal representative, the circuit court erred in prematurely entering a summary judgment for Frederick’s estate.

2. Whether the circuit court erred in failing to appoint an administrator ad litem as Nelson requested.

In any proceeding in any court, where the estate of a decedent must be represented and there is no executor or administrator of the estate, and the facts render such a person necessary and it is made known to the court by the affidavit of an interested party, it is the duty of the court to appoint an administrator ad litem of the estate for the particular proceeding. § 43-2-250, Ala.Code 1975. This statute allows both probate courts and circuit courts to appoint an administrator ad litem if facts requiring the appointment of one are established. Franks v. Norfolk Southern By., 679 So.2d 214, 218 (Ala.1996).

On June 17, 2002, Nelson requested, in his opposition to the motion to dismiss filed by Frederick’s estate, that the court allow him leave to amend his complaint to name the administrator of Frederick’s estate, if one existed, or that the court appoint an administrator of the estate, if one had not been appointed. The circuit court had the authority and a duty under § 43-2-250, Ala.Code 1975, upon learning of Frederick’s death through the motion to dismiss, to appoint an administrator for Frederick’s estate if one had not already been appointed. Therefore, the court erred by not appointing an administrator ad litem as Nelson requested.

In addition to his June 17, 2002, request to the circuit court that an administrator ad litem be appointed, Nelson also petitioned the probate court on August 22, 2002, to appoint an administrator for Frederick’s estate. Consequently, Nelson twice requested that an administrator be appointed to represent Frederick’s estate before the limitations period expired on September 1, 2002.

We conclude that the circuit court erred in failing to appoint an administrator ad litem for Frederick’s estate upon Nelson’s June 17, 2002, request, as required by § 43-2-250, Ala.Code 1975. Nelson was entitled to have an administrator ad litem appointed, if one did not already exist, and to have the opportunity to amend his complaint before the limitations period ran.

Nelson’s claim survived Frederick’s death and the running of the limitations period was tolled during the period between Frederick’s death and the granting of letters of administration, up to six months. Therefore, Nelson had until September 1, 2002, to amend his complaint and name as a party the administrator of Frederick’s estate. The circuit court’s failure to appoint an administrator ad litem and its premature summary judgment in favor of Frederick’s estate is reversible error.

Conclusion

For these reasons we reverse the summary judgment in favor of Frederick’s estate and remand the case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

MOORE, C.J., and SEE, BROWN, and HARWOOD, JJ., concur.