author: HARWOOD, Justice. BROWN, Justice

text:
    Ex parte Elvin Ray VAUGHN. (In re Elvin Ray Vaughn v. State of Alabama).
    1011416.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Rehearing Denied April 11, 2003.

      Scott C. Shimer, Florence, for petitioner.
    William H. Pryor, Jr., atty. gen., and Jean-Paul Chappell, asst. atty. gen., for respondent.
   HARWOOD, Justice.

On December 18, 2000, Elvin Ray Vaughn was indicted by a Lauderdale County grand jury on three counts of attempted murder and three counts of assault in the second degree. Vaughn pleaded not guilty and not guilty by reason of mental disease or defect on all counts. On August 31, 2001, a jury convicted Vaughn of one count of attempted murder and two counts of assault in the third degree. The trial court sentenced him to 25 years’ imprisonment for the attempted-murder conviction and 12 months’ imprisonment for each assault conviction, the sentences to be served concurrently, and imposed monetary sanctions. Vaughn appealed to the Alabama Court of Criminal Appeals on October 11, 2001, challenging the trial court’s admission of evidence regarding prior “bad acts” on the ground that the prejudicial effect of that evidence substantially outweighed its probative value. That Court affirmed the trial court’s decision in an unpublished memorandum, Vaughn v. State, (No. CR-01-0026, March 15, 2002) 854 So.2d 1222 (Ala.Crim.App.2002) (table).

Vaughn petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ affirmance of the trial court. We granted Vaughn’s petition on July 12, 2002, to address the question whether the Court of Criminal Appeals properly affirmed the trial court’s judgment in light of the admission of evidence of Vaughn’s pri- or bad acts.

The record reveals that on July 12, 2000, Vaughn reported to work at the Royster-Clark fertilizer plant (“the plant”) in Florence, where he had been employed for an unspecified period. Upon arriving at the plant, at or about 5:50 a.m., Vaughn proceeded to the “hourly showers,” a location in the plant where workers shower and place their belongings in lockers. Already in the hourly shower area when Vaughn arrived were coworkers Jerry Whiteside, Alex Armstead, Jr., and Lawson Garth. During the time Vaughn was in the hourly shower area he did not speak to his coworkers. Vaughn was described by his coworkers as a quiet man, and his lack of communication with them that morning was not uncommon. Shortly after arriving in the hourly shower area Vaughn left, and approximately five minutes later, was followed by his coworkers. The first one out of the door after Vaughn was Whiteside, followed by Armstead and Garth, all of whom started down the outside stairs toward the employee parking lot.

Whiteside testified that as they proceeded down the stairs he was speaking to another plant employee who was standing at the bottom of the stairwell, and when he was approximately halfway down the stairwell he noticed Vaughn in the parking lot, and he saw him retrieving something from the trunk of his vehicle. Vaughn then pulled a rifle from the trunk, said “Jerry, you done me wrong,” and fired two shots in the direction of Whiteside and his other eoworkers who were coming down the stairs. Whiteside, Armstead, and Garth retreated up the stairs and into the hourly showers. All three men suffered injuries from fragments of concrete, which shattered after the building was hit by the bullets, or fragments from bullets that ricocheted off the building. After the shots were fired, Vaughn was seen leaving the employee parking lot in his vehicle in what was described as a slow and normal manner. That same morning Vaughn turned himself in to the Florence Police Department and told the officer on duty that he had been in an altercation at work and that the police might be looking for him.

At trial, Vaughn supported his plea of not guilty by reason of mental disease or defect by offering the testimony of Dr. Allen Shealy, a psychologist hired by the defense. Dr. Shealy testified that during his evaluation of Vaughn, Vaughn stated that many of his coworkers, in particular Whitehead, had spread rumors around the plant regarding his sexual orientation. Vaughn stated that the same rumors were being spread around his church as well. Dr. Shealy also testified about an incident Vaughn described that occurred approximately 14 years before the incident at the fertilizer plant while Vaughn was living in Illinois, when another man called him a “rosebud.” Dr. Shealy determined that Vaughn was suffering from paranoid delusions, which caused him to believe people were saying things about him when they in fact were not, and that that belief had led him to shoot at his coworkers. Before Dr. Shealy testified, the parties and Dr. Shealy had a colloquy with the judge outside the presence of the jury regarding prior bad acts committed by Vaughn. In that colloquy, Dr. Shealy discussed two prior incidents, one of which occurred while Vaughn was serving in the military, for which he was convicted of manslaughter, as well as an incident in which Dr. Shealy believed the charges had been dropped. However, Dr. Shealy did not describe the incidents he referred to. Dr. Shealy also explained to the trial judge that these earlier incidents were not important to his evaluation of Vaughn because there was no evidence indicating that they were related to Vaughn’s mental state or to his mental illness. The trial court therefore prohibited the State from questioning Dr. Shealy about those prior acts.

The State’s expert, Dr. Alwyn Whitehead, also a psychologist, stated, however, in a similar colloquy with the judge outside the presence of the jury, that Vaughn’s prior bad acts were important to his determination of Vaughn’s mental state at the time of the incident. Counsel for Vaughn objected to the proposed admission of testimony of Vaughn’s prior bad acts, arguing that the prejudicial effect of informing the jury of the prior acts substantially outweighed the probative value. The trial court allowed Whitehead to testify as to the importance of Vaughn’s prior bad acts, after giving the following limiting instruction to the jury:

“Ladies and gentlemen, some of the information that this witness is going to testify to concerns some background information, some actions that were allegedly committed by the defendant in his personal history, his background during his life. That is going to be allowed to be testified to by this witness, but it is admissible for a limited purpose. It is not admissible for you to determine whether or not the defendant actually committed the offense with which he is charged. We refer to that as it’s not admissible as substantive evidence of the crime. It’s admitted for the limited purpose for you to hear to determine whether or not he was not guilty of this offense by reason of his defense of severe mental disease or defect. So it’s important for you to understand that anything this doctor says about what this defendant has done in the past is not to be considered by you when you are in the jury room to determine whether or not he committed the offense. Only if and when you decide that you need to determine whether or not his defense of not guilty by reason of mental disease or defect has any validity, only then would you consider any information that this witness is going to give you about this background. Now, I hope that’s not too terribly confusing. But I’ve made it as clear as I possibly can. It’s admitted for a limited purpose only. With that instruction you may go ahead.”

The State proceeded to question Dr. Whitehead about Vaughn’s personal and family history as well as the prior bad acts. Dr. Whitehead discussed an incident that occurred during the 1980’s, while Vaughn was living in Illinois, when he shot an ex-girlfriend as she climbed into the window. of his house at night, not knowing who she was. In addition, Dr. Whitehead stated that while Vaughn was serving in the United States Army, he shot a man who allegedly had attempted to stab him during a card or dice game, for which he was convicted of manslaughter. Dr. Whitehead concluded that Vaughn did suffer from a paranoid personality; however, Dr. Whitehead also expressed the opinion that at the time of the shooting at the plant Vaughn was not suffering from symptoms of a major mental illness that would have prevented him from understanding the wrongfulness of his criminal acts. At the close of the trial, and before the jury began deliberations, the trial judge again explained to the jury the limited purpose for which Vaughn’s prior acts could be considered.

In its unpublished memorandum affirming Vaughn’s conviction, the Court of Criminal Appeals stated:

“ ‘The general rule is that evidence of other collateral crimes is not admissible as substantive evidence to establish the guilt of the accused of a particular crime, but as with most broad general rules, numerous exceptions have been developed. Twilley v. State, 472 So.2d 1130 (Ala.Crim.App. 1985); Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981); Thompson v. State, 374 So.2d 377 (Ala.Crim.App.1978), aff'd, 374 So.2d 388 (Ala.1979); McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528 (1954); Wilkins v. State, 29 Ala.App. 349, 197 So. 75, cert. denied, 240 Ala. 52, 197 So. 81 (1940); C. Gamble, McElroy’s Alabama Evidence, § 69.01(1)(11) (3d ed.1977). These exceptions to the general rule fall under the following general divisions: (1) relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestae or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8). relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Wilkins v. State, supra; McElroy’s, supra. While the general rule is that evidence of separate crimes is inadmissible where the only probative function of such evidence is to show bad character or an inclination .or propensity to commit the type of crime for which the accused is being tried, if the accused’s commission of another crime or misdeed is an element of guilt or otherwise tends to prove his guilt, then proof of such other crime or misdeed is admissible. Twilley v. State, supra; Watson v. State, 398 So.2d 320 (Ala.Crim.App.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); McElroy’s, § 69.01(1). Moreover, if the accused’s commission of another crime is admissible in a present prosecution, the State may prove in meticulous detail the manner in which the accused committed such other crime. Weatherford v. State, 369 So.2d 863 (Ala.Crim. App.1979), cert. denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979); McElroy’s, § 69.02.(8)’
“Nelson v. State, 511 So.2d 225, 233 (Ala.Crim.App.1986).
“In the instant case, Vaughn entered a plea of not guilty by reason of insanity. During Dr. Whitehead’s evaluation of Vaughn, evidence concerning prior criminal acts committed by Vaughn came to light. Dr. Whitehead considered that evidence in reaching his conclusion that Vaughn was not insane. Therefore, once Vaughn presented evidence in support of his insanity defense, the State could rebut this claim with evidence from Dr. Whitehead concerning Vaughn’s prior bad acts. See, e.g., Berard v. State, 486 So.2d 476 (Ala.1985) (the present ‘wide latitude rule’ does not permit cross-examination of defendant’s expert on insanity as to accused’s future, potential illegal acts; present rule only opens the door to relevant acts of defendant that were committed up to the time of trial).
“We hold that the trial court did not err in allowing such evidence of prior criminal acts to be entered into evidence. We agree with the State that they were properly admitted for purposes of rebutting Vaughn’s insanity defense.
“Regarding the alleged prejudice Vaughn suffered from the admission of testimony regarding [those] prior criminal acts,
“ ‘[a] trial court has broad discretion in determining the relevancy of evidence and whether that evidence is inadmissible because its prejudicial effect substantially outweighs its probative value, and its ruling on these issues will not be disturbed on appeal absent a clear showing of abuse of that discretion.’
“Ex parte Dennis, 730 So.2d 138, 143 (Ala.1999). In any event, the trial court’s curative instruction was more that adequate to apprise the jury of the proper relevance of this evidence in [its] deliberations. Thus, Vaughn’s argument is without merit.”

In his petition, Vaughn contends that the Court of Criminal Appeals erred in affirming the trial court’s judgment because, he says, the trial court wrongfully allowed the admission of evidence of prior criminal acts committed by him, and the admission of that evidence resulted in unfair prejudice. “It has long been held that ‘wide latitude’ is allowed both the defendant and the state in inquiries into a person’s mental state when an issue as to the sanity of such person is presented.” Barbour v. State, 262 Ala. 297, 303, 78 So.2d 328, 333 (1954); Peoples v. State, 257 Ala. 295, 58 So.2d 599 (1952); Smith v. State, 257 Ala. 47, 57 So.2d 513 (1952); Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946); Parvin v. State, 248 Ala. 74, 26 So.2d 573 (1946); Eldridge v. State, 247 Ala. 153, 22 So.2d 713 (1945). “Where insanity is relied upon as a defense, every act of the accused’s life which throws some light on such issue is relevant thereto.” Nichols v. State, 276 Ala. 209, 211, 160 So.2d 619, 621 (1964). “These inquiries, however, are subject to the necessary limitation that the acts, declarations and conduct inquired about must have a tendency to shed light on the accused’s state of mind when the act for which he is being tried was committed.” Barbour, supra, 262 Ala. at 303, 78 So.2d at 333. Vaughn asserts that the prior bad acts in this case did not show anything about his state of mind during the shooting on July 12, 2000. In support of his contention, Vaughn argues that the decision of the Court of Criminal Appeals in its unpublished memorandum is contrary to earlier decisions of this Court in Ex parte Miller, 460 So.2d 228 (Ala.1984), and Watts v. State, 282 Ala. 245, 210 So.2d 805 (1968), and also contrary to an earlier decision by the Court of Criminal Appeals, Pilkington v. State, 46 Ala.App. 716, 248 So.2d 755 (1971).

In Ex parte Miller, the trial court allowed the State to introduce evidence of the defendant’s prior convictions, which had occurred four years before the incident that was the basis of the action, in order to challenge the defendant’s insanity defense. On appeal, the Court of Criminal Appeals affirmed. This Court reversed the judgment of the Court of Criminal Appeals on the rationale that the State offered no evidence tending to prove that the defendant’s mental state during the commission of the prior criminal acts was the same as it was during the commission of the offense at issue. The Miller Court relied on Coffey v. State, 244 Ala. 514, 14 So.2d 122 (1943), in which this Court held that a prior criminal act that occurred nine years before the incident at issue in the action could not “shed any light on the issue raised by the insanity plea.” 244 Ala. at 521, 14 So.2d at 127. The Coffey Court stated:

“This appellant was on trial for his life and we are of the opinion that the court below committed reversible error in permitting the state to introduce in evidence that the defendant, at a time far removed from the date of the homicide, assaulted another person, which act could have no possible tendency to prove the sanity of the defendant at the time of the homicide, and which act was in no way admissible under the plea of ‘not guilty.’ Nor do we think that it can be said that such evidence worked no injury to the appellant.”

244 Ala. at 521, 14 So.2d at 127-28.

In Watts, supra, the defendant pleaded not guilty and not guilty by reason of insanity to a charge of first-degree murder. The prosecution, in rebuttal to the defendant’s plea of insanity, introduced evidence of three prior convictions of the defendant. Following the rationale explained in Coffey, supra, this Court held:

“It would seem clear, therefore, that even though a ‘wide latitude’ is given both the defendant and the State in cases of this type, there is the restriction, imposed by this court, that prior convictions to be admitted must be relevant to the issue of the defendant’s insanity at the time he committed the now charged act.
“... The rule of Coffey [v. State, 244 Ala. 514, 14 So.2d 122 (1943)] protects the plea of ‘not guilty by reason of insanity,’ so that it does not bear the unwarranted burden of opening up the door to prejudice naturally resulting from the evidence of prior convictions of crime. Crimes that do not of necessity contribute to the issue of insanity. Such a burden would rob the defendant of a proper use of an allowable plea. In this case, the State was allowed to introduce three prior convictions of the defendant which were dated seven years, twenty-seven years, and thirty-two years prior to the date of the case. We cannot see how these would have any relevancy to the issues presented at the trial. Here, the defendant did not take the stand, yet out of his mouth, so to speak, his prior bad record testified against him.”

282 Ala. at 247-48, 210 So.2d at 808 (emphasis added). Vaughn did not take the stand at the trial of his case.

In Pilkington, supra, the Court of Criminal Appeals reversed a ruling by the trial court that allowed the State, over objection by the defense, to introduce into evidence rebuttal testimony challenging the defendant’s insanity defense to a homicide charge, in which the witness testified that two months before the homicide at issue the defendant had assaulted and robbed her. The Court of Criminal Appeals held that the evidence of the assault and robbery “shed no light on the issue of insanity.” 46 Ala.App. at 718, 248 So.2d at 757. In reaching its conclusion, the court relied on a quote in an article by Judge McElroy:

“ ‘... Though it is impossible to avoid the conclusion that, in a broad sense, every act of a person’s life is relevant to the issue of his mental capacity at any time of his life, it is also possible that evidence of the act of a party at a particular time may have but a glimmer of probative value on the issue of his mental capacity at another time, and yet be likely to stimulate excessive emotion or prejudice against him and thus dominate the mind of the trier of fact and prevent a rational determination of the truth. In a situation of that sort, it would seem that evidence of the act ought to be excluded....’”

46 Ala.App. at 718, 248 So.2d at 757, quoting J.R. McElroy, Relevancy of Evidence in Alabama Upon an Issue of a Person’s Mental Capacity, 4 Ala. Law. 384, 394 (1943).

In this case, the jury was allowed to hear testimony that before the shooting in this case Vaughn had shot two other persons. As was the case in Watts and Coffey, the prior acts committed by Vaughn occurred many years before the act at issue. The State presented no evidence to indicate any correlation between those prior acts and Vaughn’s state of mind at the time of the July 12, 2000, shooting. Further, as stated by the Watts Court, supra, the choice made by Vaughn not to testify has been jeopardized by the admission of his prior acts, which, in effect, have testified against him. The Court of Criminal Appeals, relying on Berard, v. State, 486 So.2d 476 (Ala.1985), states in their unpublished memorandum that Vaughn opened the door for the State to present evidence of prior acts to rebut his defense of not guilty by reason of insanity. Under the “wide-latitude” theory, the prosecution can bring out all of the “acts and declarations” of the accused. C. Gamble, McElroy’s Alabama Evidence § 69.01(10) (5th ed.1996). However, as the Court of Criminal Appeals noted in its unpublished memorandum, “the present rule only opens the door to relevant acts of [the] defendant that were committed up to the time of trial” (emphasis added). In this case, the State has presented nothing to indicate that the prior acts committed by Vaughn were relevant to his mental state during the shooting that occurred at his workplace many years later. Thus, the rationales of Watts, Coffey, Miller, and Pilkington, supra, strongly suggest that the trial court erred in allowing the jury to hear Whitehead’s testimony concerning Vaughn’s prior actions.

The State argues that Dr. Shealy’s testimony that Vaughn experienced the same ideations 14 years earlier supports the inference that he may have been suffering from the paranoid personality disorder for a long time; hence, the State contends that Vaughn’s prior acts are relevant, and, therefore, that this Court’s holding in Grammer v. State, 239 Ala. 633, 196 So. 268 (1940), rev’d on other grounds, Prince v. Lowe, 263 Ala. 410, 82 So.2d 606 (1955), should control. We disagree. In Gram-mer, the defendant was charged with first-degree murder, to which he pleaded not guilty by reason of insanity. The record revealed that Grammer, unlike Vaughn, had been in and out of various veterans’ hospitals and had received treatment for abnormal mental conditions at various facilities before the act at issue in the case. The record also showed that Grammer, unlike Vaughn, had been adjudged insane in the Tuscaloosa County Probate Court. Grammer had also been diagnosed with various mental conditions, including paranoid personality disorder. At trial, the court allowed the prosecution to question Grammer’s wife about Grammer’s prior conviction for assault with a deadly weapon. The Supreme Court, stating “[t]his issue gives much latitude to the defendant and the State to introduce evidence of defendant’s acts, declarations, and conduct prior and subsequent to the alleged crime,” 239 Ala. at 638, 196 So. at 272, held that there was no error in the trial court’s ruling.

In the instant case, there is no evidence in the record indicating that Vaughn, a 58-year-old man, had ever suffered from any type of mental abnormality or condition or that he had ever been treated for any type of mental illness before the July 12, 2000, shooting. Moreover, the record does not contain any evidence indicating that at the time Vaughn committed the prior bad acts they were the result of any paranoid-personality disorder or any other type of mental abnormality. Nor does the record indicate that Vaughn’s prior acts were the result of a wicked propensity. To the contrary, as far as was revealed by the evidence presented to the jury in this case, Vaughn’s act of shooting his ex-girlfriend was his reasonable response to an unknown intruder entering his home. Likewise, the record shows that in the other shooting Vaughn shot the man only after the man had apparently attempted to rob and stab Vaughn. Neither of those actions on its face supports an inference concerning Vaughn’s mental state at the time of the July 12, 2000, shooting, and the State supplied neither lay nor expert testimony to show the relevance between the prior acts and Vaughn’s mental state at the time of the shooting in this case.

Finally, the State argues that Dr. Whitehead’s testimony regarding Vaughn’s prior bad acts was necessary to explain the conclusions he reached upon his evaluation of Vaughn, and, therefore, that the prejudicial effect of that evidence did not substantially outweigh its probative value. The State argues, moreover, that even if the admission of the prior bad acts did cause prejudice in the minds of the jurors, the limiting instruction given by the judge cured any prejudicial impact of such evidence against Vaughn.

We do not doubt that Dr. Whitehead considered Vaughn’s prior bad acts in his evaluation; however, the record does not show any instance where Dr. Whitehead explained the relevance of those acts and what role they actually played in the process by which he reached his conclusion. During the State’s questioning of Dr. Whitehead and his description to the jury of Vaughn’s prior acts, the following exchange took place:

“Q: All of this [the description of Vaughn’s prior acts] sort of speaks to what you’re gonna tell us about your diagnosis later on, does it not?
“A: Yes, sir.”

However, the record shows that Dr. Whitehead never explained how Vaughn’s prior acts led to his diagnosis that Vaughn suffered from a mental abnormality.

Because there was no explanation as to the consideration he gave Vaughn’s prior bad acts, Dr. Whitehead could have simply stated that he did consider personal history in his evaluation, rather than describing the events and risking the substantial likelihood of prejudice. “ ‘One of the specific criterion [sic] to be used, in deciding when prejudicial effect substantially outweighs probative value, is whether or not there exist less prejudicial means of providing the same thing. If such alternative, less prejudicial evidence exists, then such availability argues in favor of excluding the prejudicial evidence.’ ” R.D.H. v. State, 775 So.2d 248, 254 (Ala. Crim.App.I997), quoting C. Gamble, McElroy’s § 20.01. “ ‘Whether the improper admission of evidence of collateral bad acts amounts to prejudicial error or harmless error must be decided on the facts of the particular case.’ ” Hunter v. State, 802 So.2d 265, 270 (Ala.Crim.App.2000), quoting R.D.H. v. State, 775 So.2d at 254. “The standard for determining whether error is harmless is whether the evidence in error was ‘harmless beyond a reasonable doubt.’ ” 802 So.2d at 270, citing Schaut v. State, 551 So.2d 1135, 1137 (Ada. Crim.App.1989), in turn citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The State’s argument concerning the effect of the trial court’s limiting curative instruction relies upon the general rule regarding limiting instructions. Generally, the effect of curative instructions on prejudicial statements made before the jury is that “ ‘[w]here the trial court immediately instructs the jury not to consider a fact, that instruction, in effect, removes or excludes that matter from the jury’s consideration, and the prejudicial effect of the statement is deemed to be cured by such instruction.’ ” Wilson v. State, 777 So.2d 856, 919 (Ala.Crim.App.1999), quoting Soriano v. State, 527 So.2d 1367, 1371 (Ala. Crim.App.1988); Bradley v. State, 450 So.2d 173, 176 (Ala.Crim.App.1983); Rich ardson v. State, 374 So.2d 433 (Ala.Crim. App.1979); Woods v. State, 344 So.2d 1225 (Ala.Crim.App.1976). However, “curative instructions are used primarily when an objection to prejudicial testimony is sustained.” Ex parte Thomas, 625 So.2d 1156, 1158 (Ala.1993). In this case, the instruction by the trial court was that the jury was to consider the prior acts committed by Vaughn, but for a limited purpose. The limited purpose for which the jury was charged to consider the evidence was to determine the validity of Vaughn’s insanity defense. As noted above, the evidence presented by the prosecution was to serve as a basis for Dr. Whitehead’s expert determination that Vaughn was not incapable of understanding the nature of his acts on July 12, 2000. However, Dr. Whitehead never informed the jury how the prior acts supported his conclusion that Vaughn did not have a meritorious insanity defense. Therefore, under the facts of this case, we cannot conclude that the potential for prejudice resulting from the trial court’s admission of evidence of Vaughn’s prior bad acts was resolved by the limiting instruction given to the jury. Accordingly, we hold that the probative value of the evidence of the prior bad acts was substantially outweighed by its prejudicial effect.

For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the cause remanded for the Court of Criminal Appeals to reverse the judgment of the trial court and to remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.

BROWN, Justice

(dissenting).

I respectfully dissent from this Court’s decision to reverse the Court of Criminal Appeals’ judgment on the basis of the trial court’s evidentiary rulings. Absent a clear showing of an abuse of discretion, eviden-tiary rulings lie within the sound discretion of the trial court and will not be disturbed on appeal. Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). Evidence of Vaughn’s prior acts served as a basis from which the State’s expert witness concluded that Vaughn was not suffering from a mental disease or defect at the time he committed the offenses in this case. Thus, I do not believe that the trial court abused its discretion in admitting evidence of Vaughn’s prior bad acts.

Furthermore, I believe that the trial court’s extensive limiting instructions to the jury were more than adequate to protect Vaughn from undue prejudice. ‘When evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Rule 105, Ala. R. Evid. “If an instruction clearly informs the jury of the sole purpose of [the] evidence ... it is reasonable to assume that the jury would not use the evidence for any other purpose.” Snyder v. State, [Ms. 1001539, December 14, 2001] — So.2d -, - (Ala.2001). In this case, the trial court painstakingly instructed the jury that the evidence of Vaughn’s prior acts was not to be used for the purpose of determining Vaughn’s guilt or innocence as to the offenses with which he was charged. I believe that this Court should not assume that the jury used the evidence for any purpose other than the purpose stated by the trial court.

Therefore, I would affirm the Court of Criminal Appeals’ judgment.

      . Jerry Whiteside, a coworker of Vaughn's, stated that he had worked "around" Vaughn for 10 or 11 years. However, he did not state that the only place the two had worked together was at the fertilizer plant.

      . The hourly shower area is located on the second floor of the plant; the only means of access to it, other than windows, is a stairwell that leads from the employee parking lot.

      . Nothing in the record indicates whether Vaughn was incarcerated or otherwise punished for the manslaughter conviction.

      . This is the incident in which Dr. Shealy stated he believed the charges were dropped.

      . The record does not state the date of this shooting, but we can infer from the record that it occurred before the shooting of the ex-girlfriend.

      . Dr. Whitehead described a paranoid personality as a disorder where one shows an unjustified suspicious distrust of others. A person interprets unintended meanings into the actions and words of others. A paranoid personality also includes paranoid ideations, a false belief, and paranoid delusions.

      . We note that the precepts of Miller, Coffey, Watts, and Pilkington are also addressed in Rules 401, 403, and 404(b), Ala. R. Evid.

      . Nothing in the record shows that Vaughn was, or was not, suffering from any mental abnormality 14 years earlier, nor is there any evidence indicating that the statement by a man in Illinois referring to Vaughn as a "rosebud” did not actually occur.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Elvin Ray VAUGHN v. STATE of Alabama.
    CR-01-0026.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Scott C. Shimer, Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

On December 18, 2000, a Lauderdale County grand jury indicted Elvin Ray Vaughn on three counts of attempted murder and three counts of assault in the second degree. On August 31, 2001, a jury convicted Vaughn of one count of attempted murder and two counts of assault in the third degree. He was sentenced to 25 years’ imprisonment for the attempted-murder conviction and to 12 months’ imprisonment for each of the assault convictions, the sentences to be served concurrently. He appealed to this Court on October 11, 2001, challenging the trial court’s admission of evidence relating to “prior bad acts” on the ground that the prejudicial effect of that evidence substantially outweighed its probative value. On March 15, 2002, this Court affirmed the circuit court’s judgment and sentence, by unpublished memorandum. Vaughn v. State (No. CR-01-0026), 854 So.2d 1222 (Ala.Crim.App.2002)(table).

Vaughn petitioned the Alabama Supreme Court for certiorari review. That court granted Vaughn’s petition, and on December 20, 2002, reversed our judgment affirming Vaughn’s conviction, holding that the prior bad acts committed by Vaughn had no relevance to his state of mind at the time of the charged offense. Ex parte Vaughn, 869 So.2d 1090, 1098 (Ala.2002). The Court further held that the prejudicial effect of such evidence was far greater than its probative value and that its admission was not harmless error. 869 So.2d at 1098.

In accordance with the judgment of the Supreme Court in Ex parte Vaughn, the circuit court’s judgment is reversed and this case is remanded to the circuit court for further proceedings consistent with that Court’s opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


author: SEE, Justice.

text:
    HEALTH INSURANCE CORPORATION OF ALABAMA et al. v. Edward SMITH and Bernice Smith.
    1010570.
    Supreme Court of Alabama.
    April 11, 2003.
    Rehearing Denied June 27, 2003.

      Robert A. Huffaker and John Peter Crook McCall of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
    L. Andrew Hollis, Jr., and Josh J. Wright of Hollis & Wright, P.C., Birmingham, for appellees.
   SEE, Justice.

Health Insurance Corporation of Alabama, Baptist Health Services Corporation, and Advantage Health (hereinafter referred to collectively as “HICA”) appeal from the trial court’s denial of their motion to compel arbitration of the claims filed against them by Edward Smith and Bernice Smith. The trial court denied HICA’s motion to compel arbitration on the ground that the insurance contracts between the Smiths and HICA do not substantially affect or involve interstate commerce. We reverse and remand.

Health Insurance Corporation of Alabama, an Alabama corporation, issues Medicare supplement insurance policies under the trade name Advantage Health. Baptist Health Services, also an Alabama corporation, sponsors the policies. On April 23, 1993, Edward Smith and Bernice Smith, residents of Fort Deposit, completed applications and tendered the first month’s premiums for Medicare supplement insurance policies for both of them. The insurance applications identified HICA as the insurer and listed a Montgomery, Alabama, address for the insurer.

In an affidavit filed in support of HICA’s motion to compel arbitration, Craig Bod-way, vice president of compliance for Olympic Health Management Systems, Inc. (“Olympic”), a subsidiary of Aon Corporation, stated that HICA’s agent faxed the Smiths’ insurance applications to Olympic, which managed the Medicare supplement policies for HICA, in Belling-ham, Washington, for its review and approval. HICA then mailed the Smiths’ original applications to Olympic in Washington state, and Olympic then mailed the Medicare supplement policies to the Smiths in Alabama. The policies identified HICA as the insurer and listed HICA’s Montgomery address. Olympic maintained the Smiths’ customer file in Washington and HICA had access to that file by computer. The Smiths’ insurance applications indicate that they asked HICA to deduct their insurance premiums each month from a checking account they maintained in Alabama.

Olympic is the third-party administrator for all of HICA’s Medicare supplement insurance policies. Olympic reviews in Washington all applications for HICA Medicare supplement policies, and Olympic makes all decisions as to whether to issue coverage. Once a policy is issued, Olympic handles any subsequent customer communications and claims administration from Washington. If an insured contacts HICA directly, HICA forwards the correspondence to Olympic in Washington for it to prepare a response. Olympic pays all claims either from its Bellingham, Washington, office or from the office of a subcontractor in Carrollton, Texas. HICA pays Olympic an administration fee for those services. The Smiths have not named Olympic as a defendant in their complaint.

The Medicare supplement insurance policies Olympic mailed to the Smiths contain an arbitration clause and a clause giving the Smiths a 30-day inspection period within which to review the policy and, if they found any provision unsatisfactory, to cancel the policy and receive a full refund of any premiums they had paid. According to Bodway’s affidavit, the Smiths did not cancel their policies during the 30-day inspection period.

The Smiths renewed their policies for a number of years. On June 1, 2001, the Smiths, individually and as members of a putative class, sued HICA, alleging breach of contract, fraud, suppression, negligent misrepresentation, civil conspiracy to defraud, and breach of fiduciary duty.

In response to the complaint, HICA moved to compel arbitration and to stay the court proceedings pending arbitration. In support of its motion, HICA submitted two affidavits, a specimen copy of the insurance policy the Smiths purchased, and copies of the Smiths’ insurance applications. The Smiths filed a response, but offered no evidence. After hearing oral argument, the trial court denied HICA’s motion to compel arbitration. The trial court found that the insurance contract does not involve instrumentalities of interstate commerce, see Selma Medical Center, Inc. v. Fontenot, 824 So.2d 668 (Ala. 2001) (plurality opinion), and it found that when considered in light of the factors set out in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), “the contract does not substantially effect [ (sic) ] or involve interstate commerce.” HICA appeals.

Section 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), provides, in pertinent part:

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

Section 2 “has the effect of preempting conflicting Alabama law, in particular Ala. Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000)(footnote omitted).

“This Court reviews de novo a trial court’s denial of a motion to compel arbitration.” Homes of Legend, 776 So.2d at 745. “A ‘party seeking to compel arbitration 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)). The party moving for arbitration must “ ‘produce some evidence which tends to establish its claim.’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.l995)(opinion on application for re-hearing)(quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). An analysis of whether a transaction affects interstate commerce “ ‘is necessarily fact-intensive and in making that analysis we are limited to the facts contained in the record.’ ” Alternative Fin. Solutions, LLC v. Colburn, 821 So.2d 981, 984 (Ala.2001)(quoting Brown v. Dewitt, Inc., 808 So.2d 11, 12 (Ala.2001)).

HICA argues on appeal that the trial court misapplied the factors enunciated in Sisters of the Visitation, and that, because those factors are not a “perfect fit” to the facts of this transaction, this Court should analyze this transaction under the “within the ‘flow' of commerce” test articulated in Selma Medical Center, 824 So.2d at 674 (plurality opinion). HICA argues that the arbitration clause in the Medicare supplement policy is governed by the FAA and that the insurance policy substantially affects or is in the flow of interstate commerce.

The Smiths agree that “the factors enumerated in Sisters [of the Visitation] may not be a ‘perfect fit’ to the insurance transaction at issue” (Smiths’ brief at 11), but they argue that this Court must rely on the Sisters of the Visitation factors because the facts in Selma Medical Center are wholly inapposite to the present case.

The Smiths are correct that this case does not directly involve “the instrumen-talities of interstate commerce, or persons or things in interstate commerce.” Selma Med. Ctr., 824 So.2d at 674. The Smiths purchased insurance policies in Alabama from an Alabama company. As this Court, however, stated in General Motors Corp. v. Stokes, 850 So.2d 1239, 1244 (Ala.2002):

“Both parties apparently assume that a case that involved a construction contract setting forth factors to be considered in determining whether the transaction had a substantial effect on interstate commerce must routinely be applied to complex commercial transactions arising in a totally different context. We can determine whether the transaction has a substantial effect on interstate commerce without substantial reliance upon, or disavowal of, the test set forth in Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000) ].”

HICA argues that its insurance transaction with the Smiths substantially affected interstate commerce. HICA faxed and mailed the Smiths’ policy applications to Olympic in Washington. Olympic, and not HICA, made the actual decision to issue the insurance policies to the Smiths. Olympic, not HICA, mailed the Smiths’ insurance policies from Washington to the Smiths in Alabama. Olympic, in Washington, maintained all records concerning the Smiths’ insurance coverage. Olympic handled all customer service from Washington. Olympic paid claims either from Washington or through a subcontractor in Texas. While HICA is an Alabama company, and while it sold the insurance policies to the Smiths in Alabama, all administrative activity subsequent to the initial solicitation and purchase took place in Washington.

This Court stated in Southern United Fire Insurance Co. v. Knight, 736 So.2d 582, 586 (Ala.1999):

“[E]ven an intrastate transaction ‘involves’ interstate commerce if it has a substantial effect on the generation of goods or services for interstate markets and their distribution to the consumer. Unquestionably, insurance transactions that stretch across state lines or intrastate insurance transactions that otherwise have the requisite (substantial) effect on interstate commerce constitute ‘Commerce among the several States’.... ”

(Citations omitted.) The Smiths cite Southern United and Henderson v. Superior Insurance Co., 628 So.2d 365 (Ala. 1993), in support of the proposition that the sale of a single insurance policy does not substantially affect interstate commerce. Henderson is no longer good law. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)(“we accept the ‘commerce in fact’ interpretation ... even if the parties did not contemplate an interstate commerce connection”); Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249, 1251 (1997)(“In Allied-Bruce Terminix, the United States Supreme Court rejected the ‘contemplation of the parties’ test that this Court had adopted in Ex parte Warren, 548 So.2d 157 (Ala.1989)... ,”).

In Southern United, this Court held that Southern United did not prove that its sale in Alabama of an automobile insurance policy affected interstate commerce. 736 So.2d at 586-87. Southern United is distinguishable from the present case on the facts, and the reasoning in Southern United supports the proposition that the Smiths’ insurance policies substantially affect interstate commerce. In Southern United, the insurance company sought to compel arbitration in a dispute with a policyholder over the terms of coverage in the policy. Southern United argued that the policy affected interstate commerce “solely on the basis that the policy provides for the coverage of Knight if he travels outside the State of Alabama.” Southern United, 736 So.2d at 587 (See, J., concurring specially).

. Southern United was an Alabama corporation that sold automobile insurance in Alabama. Southern United issued and administered its insurance policies from an office in Mobile, Alabama. Southern United never argued that its activities could in any way substantially affect interstate commerce. The only argument Southern United made that the transaction at issue in that case affected interstate commerce was that on the slight chance that the insured were to drive outside Alabama, and that while driving outside Alabama the insured were to damage his car, Southern United would provide coverage for that out-of-state accident. Southern United did not attempt to demonstrate that its insured even contemplated driving outside Alabama. Consequently, this Court held that Southern United did not prove sufficient facts to support its claim that the sale of the insurance policy at issue substantially affected interstate commerce. 736 So.2d at 586-87.

“If interstate characteristics had been demonstrated, such as an out-of-state insurance company ..., that, in the aggregate, could have a substantial effect on interstate commerce, then Southern United would have satisfied its burden. See United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 541, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944).”

Southern United, 736 So.2d at 587 n. 4 (See, J., concurring specially).

Although HICA makes an argument similar to Southern United’s — that the Smiths have insurance coverage under their HICA policy anywhere they may travel in the United States — that is where the similarity between the arguments made in this case and those made in Southern United, ends. Unlike Southern United, HICA also argues that the entire transaction -with the Smiths substantially affects interstate commerce because the bulk of the transaction took place with Olympic in the state of Washington.

HICA’s argument is analogous to Am-South’s argument in Chesser v. AmSouth Bank, 846 So.2d 1082 (Ala.2002). In Ches-ser, AmSouth sought to compel Chesser to submit a dispute regarding a credit-life insurance policy to arbitration pursuant to arbitration clauses contained in a buyer’s order, retail installment contract, and the certificate of insurance. This Court held that AmSouth “met its burden of proving that the transaction had a substantial effect on interstate commerce,” 846 So.2d at 1085, because the

“purchase of credit-life and credit-disability insurance was effectuated by Premier Chevrolet’s forwarding a check to [an insurance company] in California. Similarly, the purchase of the extended service contract was effectuated by Premier Chevrolet’s forwarding a check to ‘MS Dealer Service Corporation,’ which is headquartered in Florida. Finally, Chesser obtained insurance providing comprehensive and collision coverage from State Farm Insurance Company, which is headquartered in Illinois.”

846 So.2d at 1085-86. By analogy, HICA demonstrates that an entirely different company, Olympic, located in Washington, made the decision to issue the Smiths’ insurance policies. Olympic mailed the Smiths’ insurance policies from Washington to the Smiths in Alabama. Olympic, in Washington, then administered the Smiths’ insurance policies. Olympic maintained the records relating to the Smiths’ insurance in Washington. Olympic would have processed any claims on the Smiths’ policies in Washington or in Texas. Other than the initial solicitation, the entire transaction took place and was given effect in Washington or Texas.

The Smiths, relying on Alternative Financial Solutions, supra, argue that the Smiths’ contact with Olympic was insubstantial and that HICA transmitted too little information to Olympic for the transaction to have affected interstate commerce. In Colburn, out-of-state companies ran payday-loan operations in Alabama. Customers filled out applications in Alabama offices, received loan checks in Alabama, and cashed the loan checks in Alabama. The payday lenders lent small amounts of money obtained from local sources. The payday lenders entered customer information into computers located in Alabama and accessed the Internet through those computers. This Court held:

“Assuming, without deciding, that the movement of information in the manner presented here could substantially affect interstate commerce, we conclude that, in this case, the single Internet access involved in each of the payday-loan transactions does not rise to the level of a ‘substantial effect on interstate commerce’ .... ”

Colburn, 821 So.2d at 985.

Colburn does not say that the movement of information across state lines does not substantially affect interstate commerce. In this case, once the Smiths completed their insurance applications in Alabama, they initiated not just a single transaction, but a series of transactions with Olympic in Washington. Olympic made the actual decision to issue the insurance policies in Washington. Olympic maintained in Washington all of the records HICA accessed by computer. Olympic, in Washington, handled all subsequent administrative matters relating to the Smiths’ policies.

The Smiths argue that this Court should focus its analysis only on the facts surrounding the Smiths’ purchase of the insurance policies — that the Smiths filled out their insurance applications in Alabama, that their policies were delivered in Alabama, that their policies list HICA’s Alabama address, that they paid their premiums in Alabama, and that HICA is an Alabama company with an Alabama address doing business in Alabama. In Green Tree Financial Corp. v. Lewis, 813 So.2d 820, 823 (Ala.2001), the Lewises argued that the sale of their mobile home “took place entirely in Alabama and was between Alabama consumers and an Alabama dealer and, therefore, ... as of the time of the sale nothing had occurred that would trigger the application of the [FAA].” 813 So.2d at 823. This Court stated in response to that argument: “We cannot employ an unrealistically narrow construction of the ‘transaction’ concept so as to limit our scrutiny to the events transpiring at the time of the sale.” 813 So.2d at 824. In Lewis, this Court found it inconsequential that the loan documents listed Green Tree’s name and a Montgomery address and that the Lewises did not contemplate all of the corporate relationships involved in the transaction. Id. Similarly, in this case we cannot ignore the “corporate relationships” and the “complex interstate commercial activity” surrounding the Smiths’ purchase of the insurance policies. Id. While the Smiths completed their applications in Alabama and the policies listed HICA as the issuing company and showed an Alabama address, all of the administrative work necessary to complete the transaction took place in Washington. The insurance transaction in this case gives rise to a substantial effect on interstate commerce.

The Smiths also argue that the arbitration clause in each of their insurance policies is inapplicable to this litigation because, they say, the language in the arbitration clause is permissive and the scope of the clause is limited. HICA argues that the arbitration clause requires that all disputes shall be arbitrated if any of the parties elects to compel arbitration, and that the arbitration clause covers the Smiths’ action.

The insurance policy reads, in pertinent part:

“All disputes and controversies arising under Medicare SELECT policy and all disputes and controversies relating to benefits available shall be resolved pursuant to the Grievance Procedure as set forth herein.... ”
“ARBITRATION. In the event the policyholder is dissatisfied with the findings and rulings of HICA’s Board of Directors or HICA is dissatisfied with the decision of the Grievance Committee or the Board of Directors, either the policyholder or HICA shall have the right to have the dispute submitted to binding arbitration before an arbiter under the commercial arbitration rules then in effect adopted and applied by the American Arbitration Association.”

(Bold typeface and capitalization original.) The clause requires that “all” disputes be resolved according to the grievance procedure. It further requires that the insured first submit any dispute to HICA’s grievance committee before turning to an outside remedy. If either HICA or the insured is dissatisfied with the results of HICA’s internal grievance procedure, either party may submit the dispute to binding arbitration. The clause is permissive only to the extent that it stipulates that either party may choose to compel the other to arbitrate a dispute. If neither party exercises its right to compel arbitration, the parties are free to use other means to settle a dispute. The arbitration clause requires, however, that if either party chooses to exercise its right, then the parties shall submit the dispute to binding arbitration.

The Smiths cite United Wisconsin Life Insurance Co. v. Beaty, 775 So.2d 191 (Ala.2000), to support the proposition that their action falls beyond the scope of the arbitration clause in their insurance policies. United Wisconsin Life is inapposite, however, because it concerned the retroactive application of an arbitration clause contained in a rider to an insurance policy to compel arbitration concerning events that took place before the policy rider was issued, and it concerned the application of a requirement that an insured arbitrate disputes arising from the insurer’s review process for denied claims. HICA argues that the present case differs from United Wisconsin Life because the arbitration clause in this case applies to all disputes, not merely disputes regarding denied insurance claims. HICA also argues that the specific language of the arbitration clause — that the clause reaches “all disputes and controversies relating to benefits available” — certainly reaches the Smiths’ claim that the Medicare supplement insurance policies offered them no benefits. HICA argues finally that the fact that the arbitration clause uses the phrases “arising under [the policies] ... and all disputes and controversies relating to benefits” indicates that the clause has a broad reach. In Green Tree Financial Corp. v. Shoemaker, 775 So.2d 149, 151 (Ala.2000), this Court noted that “where a contract signed by the parties contains a valid arbitration clause that applies to claims ‘arising out of or relating to’ the contract, that clause has a broader application than an arbitration clause that refers only to claims ‘arising from’ the agreement.” HICA argues that because the arbitration clause in the Smiths’ insurance policies use the “arising under ... and ... relating to” language, the clause has a broad application. The Smiths’ only response is that “arbitration under the Smiths’ policies was only intended to come into play when the other remedies provided for within the grievance procedure had been exhausted, and when dissatisfaction remained with a decision concerning the administration, claims practices or services of the issuer.” (Smiths’ brief at 14.) The Smiths’ claim that HICA sold them policies that would pay them no benefits. Such claims fall within the ambit of the arbitration clause.

We reverse the trial court’s order denying HICA’s motion to compel arbitration, and we remand the case for the trial court to stay the proceedings and to order the parties to arbitrate their dispute under the terms of the arbitration clause contained in the insurance policies.

REVERSED AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J., dissent.

      .The policy language reads, in pertinent part: "All disputes and controversies arising under Medicare SELECT policy and all disputes and controversies relating to benefits available shall be resolved pursuant to the Grievance Procedure as set forth herein. ...”

        "ARBITRATION. In the event the policyholder is dissatisfied with the findings and rulings of HICA’s Board of Directors or HICA is dissatisfied with the the decision of the Grievance Committee or the Board of Directors, either the policyholder or HICA shall have the right to have the dispute submitted to binding arbitration before an arbiter under the commercial arbitration rules then in effect adopted and applied by the American Arbitration Association. The arbiter shall be selected by mutual agreement of HICA and the policyholder. The cost and expense of arbitration shall be paid by the party initiating the demand of arbitration. The decision of the arbiter shall be binding upon the policyholder and HICA, and the arbiter’s ruling shall be enforceable pursuant to state law.

        "Grievance Procedure Limitation. At the time that this policy is sold, the policyholder agrees to be bound by the grievance procedure outlined above.”
      (Bold typeface and capitalization original.)

      .Nothing in the record indicates exactly why or when the Smiths canceled their policies. They may have canceled their policies sometime after 2000, because paragraph 11 of the Smiths’ complaint alleges:
      "Defendants intentionally concealed their fraudulent scheme from Edward Smith and Bernice Smith and from Plaintiffs [mem- . bers of putative class] through 2000 so as to toll all pertinent statutes of limitations.”

      .The substance of the Smiths' complaint is unclear. In the Smiths’ answer to HICA's motion to compel arbitration, they indicate that in addition to being eligible for Medicare benefits, they both were eligible for Medicaid at the time they purchased their policies from HICA. The Smiths argue in their answer to HICA’s motion to compel arbitration:
      "The principal alleged wrongful conduct was the concealment on the part of the defendants, at the time of the initial purchase and subsequently when the coverage was renewed, of the material fact that, if the Smiths were eligible for Medicaid benefits, they did not need Medicare supplement coverage and that the subject policy would pay no benefits because they were Medicaid-eligible.”
      It is worth noting, however, that "Acknowledgment # 7” in a list of "Acknowledgments” on the insurance applications signed by the Smiths reads:
      "The Applicant understands there is no need for more than one Medicare supplement policy. As of age 65, he/she may be eligible for benefits under Medicaid and therefore not need a Medicare supplement. Benefits and premiums under the Medicare supplement policy will be suspended during entitlement to benefits under Medicaid for 24 months, as long as suspension is requested within 90 days of becoming eligible for Medicaid. When you are no longer entitled to Medicaid, your policy will be reinstituted if requested within 90 days of losing Medicaid eligibility.”
      The insurance application asked whether the applicant was covered by Medicaid, and the Smiths indicated that they were not covered by Medicaid. The application did not ask the applicant to list his or her income. The application asked the applicant to describe where he or she lives, and the Smiths checked a box next to the words "Own Home.” The application asked whether the applicant had an existing Medicare supplement policy, and Edward Smith, then age 70, checked the box marked "yes,” and wrote the name "Humana” on the line next to the word "Company.” Bernice Smith, who turned 65 on the date the HICA application was completed, indicated that she did not have an existing Medicare supplement policy. The Smiths also selected the "automated payment” option, pursuant to which HICA deducted premiums for the policies directly from the Smiths' checking account.

      . The record does not indicate clearly how HICA handled the monthly premium payments. The Smiths' policy applications, which are properly in the record, indicate that the Smiths initially instructed HICA to debit premium payments from their checking account in Alabama. Nothing in the record indicates whether the Smiths relied on the automatic debit for the entire time the policies remained in force. The statement of facts in the Smiths’ brief to this Court states that HICA continued to accept premium payments from the Smiths for years, but the statement does not offer any other information about the payment process. Even if the Smiths' brief was more clear, "This Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995). The Smiths have introduced no evidence showing where the premiums went. The record is silent as to whether Olympic or HICA, or some other party, received and processed the Smiths’ premium payments.

      . Henderson, 628 So.2d at 367, applied the “contemplation of the parties” test articulated in Ex parte Warren.


author: HOUSTON, Justice.

text:
    ORMCO CORPORATION v. Timothy M. JOHNS.
    1020162.
    Supreme Court of Alabama.
    May 2, 2003.
    Rehearing Denied June 27, 2003.

      Joseph B. Mays, Jr., John E. Goodman, T. Matthew Miller, and John C. Neiman, Jr., of Bradley Arant Rose & White, LLP, Birmingham, for appellant.

      Michael D. Freeman and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for appellee.
   HOUSTON, Justice.

Ormco Corporation appeals the Jefferson Circuit Court’s denial of its request for a preliminary injunction stemming from Ormco’s action against its former salesperson, Timothy M. Johns, for his alleged breach of a noncompetition agreement. We remand.

I. Facts

Ormco manufactures and sells orthodontic supplies. From 1999 to August 2002, Johns was employed with Ormco as a regional manager with the exclusive rights to sell Ormco products to orthodontists in a region covering parts of three states: the Florida panhandle, the northern part of Mississippi, and all of Alabama. The names and addresses of the approximately 125 orthodontists in this region were readily available to the general public. Johns would make sales visits to those orthodontists, and between 80 to 90 of them purchased some of their orthodontic supplies from Ormco. Ormco provided Johns with an expense account by which he could build business relationships with the orthodontists through taking them out for meals and purchasing gifts.

Before his employment with Ormco, Johns had had no experience with orthodontics or with the sales of orthodontic supplies. Accordingly, when he first became an Ormco employee, Ormco trained Johns in the orthodontic-supplies industry through seminars as well as through audio-taped and written materials.

In August 2002, Johns accepted a job as a salesperson with GAC International (“GAC”), one of Ormco’s primary competitors. GAC solicited business from the orthodontists in the same region in which Johns had worked as a salesperson with Ormco. In his new position with GAC, Johns sells orthodontic supplies to orthodontists in virtually the same region he covered as a salesperson with Ormco. After accepting the position with GAC, Johns began contacting orthodontists in his former Ormco region, informing them that he is now with GAC.

Upon learning that Johns had taken a position with GAC, Ormco sued Johns, alleging various claims relating to an employment agreement Johns had signed with Ormco. The employment agreement contains the following noncompetition agreement, which Ormco alleges Johns is breaching by his activities as a GAC salesperson:

“I ... agree that for a period of one (1) year following the termination of my employment, for whatever reason, with SDS [Sybron Dental Specialties, Inc.] (or if my employment with SDS is for a period of less than one (1) year, for a period equal to the term of my employment) I shall not, directly or indirectly, alone, or as a member of a partnership or as an officer, director, stockholder, employee or representative of any company, engage in any business activity which is the same or similar to work engaged in by me as an employee of SDS within the territory, wherein I represented SDS and which is directly competitive with the business conducted, or to my knowledge contemplated, by SDS at the time of my termination, unless I have the written consent of SDS. I acknowledge that SDS has the right, from time to time, to change the territory wherein I shall represent SDS.”

Along with its complaint, Ormco filed a motion for a temporary restraining order (“TRO”) and a motion for a preliminary injunction, seeking to prevent Johns from violating his covenant not to compete during the course of the litigation. The TRO was granted, but was later dissolved and was supplanted by an order from the trial judge prohibiting Johns from “contacting or soliciting business from Ormco customers that he solicited, contacted, or did business with while employed at Ormco.”

Following expedited discovery, both sides submitted briefs on Ormco’s motion for a preliminary injunction. After an evi-dentiary hearing, the trial court requested additional briefing on whether Ormco had an adequate remedy at law and whether Ormco could demonstrate immediate and irreparable injury. Following the submission of briefs on those issues, the trial court denied the motion for a preliminary injunction, finding that Ormco had failed to present sufficient evidence to demonstrate irreparable injury. Ormco appeals. See Ala. R.App. P. 4(a)(1)(A) (providing for appellate review as of right from “any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction”).

II. Analysis

A plaintiff seeking a preliminary injunction has the burden of demonstrating

“(1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.”

Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994). Here, the trial court stated as its reason for refusing to grant the preliminary injunction that Ormco failed to produce sufficient evidence that without the injunction it would suffer irreparable injury stemming from Johns’s activities during the litigation of Ormco’s action against Johns. Id.

“ ‘Irreparable injury’ is an injury that is not redressable in a court of law through an award of money damages.” 646 So.2d at 587 (citing Triple J Cattle, Inc. v. Chambers, 551 So.2d 280 (Ala. 1989)). However, “courts will not use the extraordinary power of injunctive relief merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in a court at law.” Martin v. City of Linden, 667 So.2d 732, 736 (Ala. 1995); see also Borey v. National Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 34 (2d Cir.1991) (stating that “a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction”). The primary focus of the parties’ briefs to this Court is their disagreement over the nature of the evidence required to demonstrate “irreparable injury.”

A. Ormco’s Argument

Ormco contends that irreparable injury should be inferred when a violation of a noncompetition agreement is alleged and when there has been an initial showing that the agreement is enforceable and that the employer has a protectible interest. Accordingly, Ormco argues that if such a showing is made, irreparable injury is established and it need present no further evidence as to that element of injunctive relief. Ormco acknowledges that this Court has not explicitly adopted this inference of irreparable injury in a case involving the alleged violation of a noncompetition agreement; however, Ormco cites several decisions of other jurisdictions that appear to indicate that the courts in those jurisdictions either explicitly use that inference or at least appear to be willing to find irreparable injury easily established in a case involving the alleged violation of a noncompetition agreement: Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69 (2d Cir.1999) (“New York cases in the covenant-not-to-compete context apparently assume an irreparable injury to plaintiff’); JAK Prods., Inc. v. Wiza, 986 F.2d 1080, 1084 (7th Cir.1993) (under Indiana law, “[wjhenever an employee uses his experience gained from an employer in violation of a reasonable covenant not to compete, irreparable injury occurs and injunctive relief is appropriate”); Highdata Software Corp. v. Kothandan, 160 F.Supp.2d 167, 168 (D.N.H.2001) (stating that “[a]ny significant violation of an enforceable non-competition and nondisclosure agreement causes irreparable harm to the party seeking to promptly enforce the agreement”); American Express Fin. Advisors, Inc. v. Scott, 955 F.Supp. 688, 693 (N.D.Tex.1996) (“[i]n Texas, injury resulting from the breach of non-compete covenants is the epitome of irreparable injury,” because “[i]n a situation where trade secrets and goodwill are involved, the threat is significant that the harm experienced by the misappropriation or misuse of trade secrets will be irreparable” and “damages [will be] impossible to calculate”); Harrison v. Albright, 40 Colo.App. 227, 231-32, 577 P.2d 302, 305 (1977) (“irreparable injury is presumed from the breach of [a non-competition] clause, and ... the remedy at law is presumed inadequate”); McRand, Inc. v. Van Beelen, 138 Ill.App.3d 1045, 1054, 486 N.E.2d 1306, 1313, 93 Ill.Dec. 471, 478 (1985) (“Once a protectable interest is established, irreparable injury is presumed to follow if the interest is not protected.”); Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 75 (Mo.1985) (“If the [noncompetition] covenant is lawful and opportunity for influencing customers exists, enforcement is appropriate.”).

Ormco points out that this Court has never held a trial court in error for finding that an employer demonstrated irreparable harm stemming from an employee’s breach of a noncompetition agreement, so as to justify a preliminary injunction. See, e.g., Seymour v. Buckley, 628 So.2d 554 (Ala.1993); Gross v. QMS, Inc., 613 So.2d 331 (Ala.1993); and Harkness v. Scottsboro Newspapers, Inc., 529 So.2d 1000, 1003 (Ala.1988). However, this fact is of little persuasive effect, given that this Court reviews a trial court’s ruling on a request for a preliminary injunction with great deference to the decision of the trial court. See Seymour, 628 So.2d at 557 (“The issue before us is whether the trial court’s finding that irreparable harm would result if the preliminary injunction was not issued was plainly and palpably erroneous. It is settled law that wide discretion is accorded the trial judge hearing a motion for a preliminary injunction and that his action will not be disturbed on appeal unless he abuses his discretion.” (citing Chunchula Energy Corp. v. Ciba-Geigy Corp., 503 So.2d 1211 (Ala.1987), and Martin v. First Fed. Sav. & Loan Ass’n, 559 So.2d 1075 (Ala.1990))); Gross, 613 So.2d at 332-33 (“ ‘It is well established that the issuance of injunctive relief is within the sound discretion of the trial court, especially when ... the facts are in dispute and the evidence is presented ore tenus.’ ” (quoting Davis v. Hester, 582 So.2d 538, 540 (Ala. 1991) (citation omitted))); Harkness, 529 So.2d at 1002 (“This Court adheres to the principle that the grant of a preliminary injunction will not be reversed on appeal absent an abuse of discretion. This abuse must be of such a nature as to constitute or manifest injustice unless rectified on appeal”).

B. Johns’s Argument

On the other hand, Johns correctly points out that Alabama law recognizes no inference of irreparable injury from the alleged violation of a noncompetition agreement; he argues that this Court should not now recognize such an inference. Johns contends simply that this case should be treated as any other request for injunctive relief, that is, that the burden is on Ormco to demonstrate that it will suffer immediate and irreparable injury during the litigation if Johns is not enjoined from working as a salesperson for GAC. See Perley, 646 So.2d at 587. Johns argues not only that Ormco failed at the hearing on its motion for a preliminary injunction to produce sufficient evidence of irreparable injury, but also that Johns effectively refuted what evidence Ormco did present.

C. Considerations Regarding Irreparable Injury, Noncompetition Agreements, and Former Employee Salespersons

We recognize that there is frequently a close nexus between the threat of irreparable injury to an employer and a violation of a noncompetition agreement by a former employee, especially when that former employee is a salesperson who is planning to sell in the same geographic area he or she covered for the former employer. Typically, those noncompetition agreements seek to protect and preserve important interests, such as customer relationships (e.g., customer goodwill built by the former salesperson on behalf of the employer) and confidential business information (such as trade secrets), that are of great value to an employer. See Booth v. WPMI Television Co., 533 So.2d 209, 211 (Ala.1988) (acknowledging the value of customer relationships and confidential information when analyzing a non-competition agreement) (citing Devoe v. Cheatham, 413 So.2d 1141, 1143 (Ala. 1982), and Restatement (Second) of Contracts § 188, Comment B (1979)); see, e.g., Guidant Sales Corp. v. George (No. CIV.01-1638) (D.Minn., Nov. 19, 2001) (not published in F.Supp.) (granting a preliminary injunction to enforce a covenant not to compete regarding sales of cardiac-rhythm management devices where there was sufficient evidence indicating that, among other things, the “sales representative’s personal relationship with a particular physician has great impact on the sale of [cardiac-rhythm management] devices”); Frontier Corp. v. Telco Communications Group, Inc., 965 F.Supp. 1200, 1203 (S.D.Ind.1997) (“Sales depend on price and the quality of service, of course, but a sales representative’s personal relationship and good will with a customer is often critical in determining a customer’s choice of long distance carriers in this competitive market where it is so difficult to distinguish one ‘product’ from another.”). By their very nature, those interests, when damaged through competition in violation of a noncompetition agreement, are not always easily repaired. The force of these considerations presses in favor of our adoption of an inference of irreparable injury when a former employee salesperson is accused of violating an enforceable noncompetition agreement by selling in the same geographic location in which he or she worked as an employee of the former employer.

However, we also recognize that there are situations where those interests, while they might be held by the employer, are not primarily tied to the particular former employee salesperson sought to be enjoined. For example, with regard to customer relationships and goodwill, the customer may not make its purchasing decisions based on a personal relationship with the former employee salesperson, but rather based on the quality or particular characteristics of, and a personal preference for, the employer’s products. This “dependence” factor (i.e., whether the customer is really dependent on or solidly committed to a particular salesperson) may be determined by, among other things, the level of the customer’s knowledge and expertise with regard to the products being sold, and the extent to which the customer, if at all, trusts the salesperson to make actual purchasing decisions for the customer.

Also, with regard to the interest of confidential business information, that information, while important, might not be known by the employee salesperson, in which case the protectible interest of confidentiality is held by the employer and not the employee salesperson. Furthermore, the employee may know of certain business information, but that information is not truly confidential because it is legally attainable by the employer’s competitors (in which case the employer loses its pro-tectible interest in the confidentiality of the information). See, e.g, Iroquois Indus. Corp. v. Popik, 91 Ill.App.3d 505, 508, 47 Ill.Dec. 279, 282, 415 N.E.2d 4, 7 (1980) (“The instant record shows that the names of the customers were and are readily ascertainable by reference to a telephone or industrial directory. [The employee] developed 90% to 95% of the customers himself, without reliance upon [the employer].”); Image Supplies, Inc. v. Hilmert, 71 Ill.App.3d 710, 714, 390 N.E.2d 68, 72, 28 Ill.Dec. 86, 90 (1979) (“[A]ny of plaintiffs competitors could readily obtain the names and addresses of those firms interested in printing supplies. The names were listed in the telephone directory and in professional publications.”); see also Public Sys., Inc. v. Towry, 587 So.2d 969, 973 (Ala.1991) (in the context of a claim under the Alabama Trade Secrets Act, Ala.Code 1975, § 8-27-1 et seq., “[i]t is axiomatic that once made public, [a] customer list has no claim to trade secret protection”).

In these or similar situations, it appears that irreparable injury should not be inferred from the alleged violation of a non-competition agreement.

We are persuaded that the best approach to take account of these considerations is the approach taken by the Minnesota courts, which recognize a rebut-table inference of irreparable injury in cases where a former employee salesperson is actively competing with his former employer in the same geographic area in violation of a noncompetition agreement:

“Irreparable harm to an employer from a former employee’s competing business is generally not inferred, as it is where competition follows the sale of a business. See Note, Employment Contracts: Covenants Not to Compete in Minnesota, 9 Wm. Mitch. L.Rev. 388, 394 (1984). In Menter Co. v. Brock, 147 Minn. 407, 410, 180 N.W. 553, 554 (1920), the supreme court indicated the necessity of some proof of irreparable damage from the former employee’s breach of a covenant not to compete:
*We think the breach of a like covenant in an employment contract does not so readily indicate irreparable injury to the employer. Injury is not shown by the mere fact that the employee has left the service and has entered the employ of a rival concern.’
“The supreme court has inferred harm, however, where the former employee was a salesman who began selling competing goods in the same trade area. Thermorama, Inc. v. Buckwold, 267 Minn. 551, 552, 125 N.W.2d 844, 845 (1964). Harm has also been inferred in the case of professional employees assumed to acquire a personal influence over patients or clients of their employer. See Granger v. Craven, 159 Minn. 296, 199 N.W. 10 (1924) (physician employed by another doctor).
“In Thermorama, the case relied on by respondent, the employer alleged
“ ‘a systematic solicitation of plaintiff’s customers by defendant and active participation by him in a competitive business enterprise as a salesman .... ’
“Thermorama, 267 Minn, at 552, 125 N.W.2d at 845. The court gave little weight to the employee’s counteraffidav-it stating he had not competed for his employer’s customers and ‘denfying] there are any customers who belong exclusively to any particular seller.’ Id.
“Hefty [the former employee salesman of Rosewood] admits contacting institutions which bought mortgages from Rosewood while he was employed there. Like Buckwold in Thermorama, he denies that any of these institutions are exclusive customers, of Rosewood or any other mortgage company. Here, however, the evidence, which is limited to his deposition, not only supports this claim, but indicates that Hefty had no ‘personal hold upon the good will of the business,’ Menter [,] 147 Minn, at 410, 180 N.W. at 555, which would support an inference of harm.
“Although Hefty had ‘contacts’ within institutions buying on the secondary market, they did not provide a reliable ‘clientele’ but merely assured his company’s mortgages would be considered. As in many financial markets, pricing rather than personal contacts predominates in market decisions, and prices appear to have been set by the large institutions. Thus, these large financial institutions dominated the market, at least as appears from the record here, unlike the retail store owners in Ther-morama who bought from manufacturers and wholesalers where ‘personal contact’ carried great weight.
“[Rosewood] failed to present any affidavits, depositions or other preliminary evidence as to characteristics of the secondary market on which to base an inference of harm to it from the competitive activities of Hefty .... ”

Rosewood Mortgage Corp. v. Hefty, 383 N.W.2d 456, 459 (Minn.Ct.App.1986).

“Irreparable injury can be inferred from the breach of a restrictive covenant if
the former employee came into contact with the employer’s customers in a way which obtains a personal hold on the good will of the business. Menter Co. v. Brock, 147 Minn. 407, 410,180 N.W. 553, 554-55 (1920); see also Thermorama, Inc. v. Buckwold, 267 Minn. 551, 552-53, 125 N.W.2d 844, 845 (1964) (systematic solicitation of former employer’s customers supports inference of irreparable harm). However, the inference may be rebutted by evidence that the former employee has no hold on the good will of the business or its clientele. See Rosewood Mortgage Corp. v. Hefty, 383 N.W.2d 456, 459-60 (Minn.Ct.App.1986).
“The evidence in this case sufficiently supports the court’s inference of irreparable harm. Fosshage [a former employee of Webb Publishing Company] worked closely with Webb’s clients, considered them friends, and at least one client considered him part of ‘a winning team.’ His success in soliciting their business demonstrates the ‘personal hold’ he had on them. Loss of American Cyanamid and Fosshage’s other customers would cost Webb 45 percent of its custom publishing revenue, and the damage to its business reputation in that area would be substantial and not easily measured.”

Webb Publ’g Co. v. Fosshage, 426 N.W.2d 445, 448-49 (Minn.Ct.App.1988).

Under this approach, when seeking a preliminary injunction to enforce a non-competition agreement against a former employee salesperson, the employer, to make use of the inference, must make an prima facie showing 1) that a valid non-competition agreement exists, 2) that the employer has a protectible interest, and 3) that the former employee salesperson is actively competing with his or her former employer in the same geographic area in violation of the noncompetition agreement.

Under Ala.Code 1975, § 8—1—1(a), agreements that restrain a person from exercising a lawful business are generally void. However, § 8—1—1(b) provides an exception to that rule and allows the enforcement of a noncompetition agreement entered into between an employer and an employee:

“One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.”

Protectible interests certainly include, but are not limited to, those mentioned above: valuable customer relationships and goodwill that have been established by the defendant as an employee of the plaintiff and confidential information, such as trade secrets and confidential business practices.

If the trial court is satisfied that the employer has made the prima facie showing described above, then a rebutta-ble inference arises that the employer will suffer irreparable injury unless an injunction issues. However, the employee can rebut this inference by producing evidence that the competition of the employee will not irreparably injure the employer. As discussed above, such evidence could include evidence indicating that the customers’ purchase decisions were based primarily on an independent preference for the particular goods of the employer rather than on the relationship between the customer and the salesperson (so that the salesperson has no substantial “personal hold” on the customers, see Rosewood Mortgage Corp., 383 N.W.2d at 459; Webb Publ’g Co., 426 N.W.2d at 448-49), or evidence indicating either that the salesperson did not have confidential information or that the information was not really confidential.

If the trial court is satisfied that the employee has produced evidence sufficient to rebut the inference that continued competition during the course of the litigation will result in irreparable injury to the employer, the burden shifts back to the employer to produce sufficient evidence (beyond that necessary for the prima facie showing described above) of irreparable injury.

D. Application to this Case

There is evidence in the record as to the disputed issues material to the above analysis, including evidence regarding 1) whether Ormco’s customers make their purchases based primarily on their relationship with the salesperson or on the quality of the product, and 2) whether Johns was in possession of any confidential Ormco information (i.e., information not otherwise attainable by GAC or other competitors) that he could use to acquire Ormco’s customers. However, given that our decision adopts a new framework for analyzing those types of irreparable-injury claims, and because Ormco appears to have relied somewhat on an unrebuttable inference of irreparable injury before the trial court, we think it prudent to withhold judgment in order to allow the trial court to first determine whether the element of irreparable injury is satisfied under the framework described above. Whether another hearing or additional evidence is needed is a matter within the trial court’s discretion.

III. Conclusion

Therefore, we remand the case to the trial court- for proceedings consistent with this opinion.

REMANDED.

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

MOORE, C.J., and LYONS and WOODALL, JJ., dissent.

      . The employment agreement was actually between Johns and Sybron Dental Specialties, Inc. ("SDS”), and "each of its divisions and subsidiary corporations.” Johns argues that Ormco is not a party to the contract. However, it is undisputed that Ormco was a subsidiary corporation of SDS at the time the employment agreement was executed. Therefore, Johns’s argument is without merit.
      Additionally, Johns argues that even if Orm-co is a party to the employment agreement, Ormco was not registered to do business in Alabama and therefore, under Alabama's "door-closing” statute, Ala.Code 1975, § 10-2B-15.02(a), cannot enforce the provisions of Johns's employment agreement. However, the undisputed fact that Johns’s employment with Ormco was explicitly interstate in nature (i.e., he was hired to sell orthodontic supplies in a three-state region) prohibits the application of § 10-2B-15.02(a). See North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598, 601 (Ala.1988) ("A non-qualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business.”).

      . Given the fact that Ormco seeks only a preliminary injunction, the trial court was (and this Court is) concerned only with evidence indicating that Ormco would suffer irreparable injury during the course of the proceedings (from the filing of the complaint to the entry of a judgment or dismissal).

      . In fact, some states have enacted laws explicitly reflecting this close connection, specifically providing that irreparable injury is evident from the breach of a valid noncom-petition agreement. See, e.g., Fla. Stat. Ann. § 542.33(2)(a) (West 2002) (providing that, when a noncompetition agreement exists, "use of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined"); and La. Rev.Stat. Ann. § 23:921(G) (West 2003) (providing that additional proof of irreparable harm is not necessary for injunctive relief in the event of the breach of a covenant not to compete).

      . Another way this concept is expressed in the context of noncompetition agreements is in terms of the "impact” of the violation of the agreement not to compete on the former employer. In that respect, it is important to note that while there may be some impact to an employer caused by the departure of an employee salesperson, it is not the impact caused merely by the employee’s departure but the impact caused by the former employee’s working for a competitor that is important. If there would not be much difference between the two "impacts,” the argument that irreparable injury will result from the former employee salesperson’s working for a competitor is much diminished. See, e.g., Security Rug Cleaning Co. v. Sams (No. C-970641) (Ohio Ct.App., Jan. 30, 1998) (unpublished) ("[The employer] presented evidence that its business decreased after [the former employees’] departure. However, [the employer] presented no evidence from which it could be inferred that the decline in business was due to [the former employees’] competition with [the employer], and not due to the mere fact that these two employees no longer worked for [the employer] and that both of the remaining employees of the division also left.”); Licocci v. Cardinal Assocs., Inc., 432 N.E.2d 446, 455 (Ind.Ct.App.1982) ("The loss of experienced salesmen diminished temporarily the value of [the employer] as a whole and in the short-term removed the company from the marketplace. The loss of good will under such circumstances was a risk of business, but expropriation of that good will by former employees to exploit its competitive power was not.”), vacated on other grounds, 445 N.E.2d 556 (Ind.1983).

      . Although we recognize that unpublished decisions of Minnesota state courts typically are not to be cited as precedent, see Minn.Stat. Ann. § 480A.08(3) (West 2002), we note the following unpublished decisions merely as examples relevant to our discussion: BFI-Portable Servs., Inc. v. Kemple (No. C5-89-1172) (Minn.Ct.App., Nov. 21, 1989) (unpublished); and Investment Rarities, Inc. v. Miles (No. CO-88-1087) (Minn.Ct.App., Feb. 28, 1989) (unpublished).

      . See, e.g., Rosewood Mortgage Corp., 383 N.W.2d at 459 (discussing how "pricing rather than personal contacts predominates in market decisions”).

      . For example, see Investment Rarities Inc., supra note 5 (holding that a former employee defendant rebutted an inference of irreparable injury stemming from his use of a Christmas card list to notify former clients of his job change when, among other things, "there [was] evidence that [the employer's] secrecy patterns were otherwise compromised”). See Minn.Stat. Ann. § 480A.08(3).