author: LYONS, Justice.

text:
    Ex parte SAFEWAY INSURANCE COMPANY OF ALABAMA and Mims Insurance Agency. (In re Willie J. Anderson v. Safeway Insurance Company of Alabama et al.).
    1050648.
    Supreme Court of Alabama.
    June 23, 2006.
    Robert C. Ward, Jr., and R. Mac Freeman, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner Safeway Insurance Company of Alabama.
    James R. Shaw and John Herndon of Huie, Fernambucq & Stewart, Birmingham, for petitioner Mims Insurance Agency-
    Valerie Rucker Russell, Jock M. Smith, and Brian P. Strength of Cochran, Cherry, Givens & Smith, Tuskegee, for respondent.
   LYONS, Justice.

Safeway Insurance Company of Alabama and Mims Insurance Agency, the remaining defendants in an action pending in the Macon Circuit Court, petition this Court for a writ of mandamus directing the Macon Circuit Court to vacate its order denying Safeway’s and Mims Insurance’s motions for a change of venue to the Montgomery Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute. We grant the petition and issue the writ.

I. Factual Background

Willie J. Anderson, a resident of Montgomery County, and Lowell Slaughter, a resident of Macon County, were involved in a motor-vehicle accident on April 29, 2002, in Montgomery County near the intersection of Highway 80 and Highway 126. Anderson sued Slaughter and Safeway in the Macon Circuit Court, alleging that Slaughter was negligent in the operation of his vehicle and seeking uninsured/underinsured-motorist benefits from Safeway. Safeway filed a motion to transfer the case to the Montgomery Circuit Court, alleging that venue in Macon County was improper. Anderson then amended his complaint to add Mims Insurance as a defendant, alleging that Mims Insurance had negligently or wantonly failed to obtain proper insurance coverage for him. Shortly thereafter, Anderson settled his claims against Slaughter and stipulated to Slaughter’s dismissal from the action. Mims Insurance then filed a motion to transfer the case to the Montgomery Circuit Court. Anderson subsequently filed two additional amended complaints, deleting his claims against Slaughter and asserting claims of fraud in the sale of a policy of insurance. Safeway and Mims Insurance renewed their motions for a change of venue, supported by affidavits. In addition to arguing that venue in Macon County was improper, Safeway and Mims Insurance also requested that the case be transferred to Montgomery County on the basis of forum non conveniens pursuant to § 6-3-21.1. The trial court denied their motions for a change of venue on January 9, 2006. Safeway and Mims Insurance timely petitioned this Court for a writ of mandamus on February 21, 2006.. See Rule 21(a)(3), Ala. R.App. P. (“The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal,” i.e., 42 days.). See also Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003).

II. Standard of Review

“In Ex parte National Security Insurance Co., 727 So.2d 788, 789 (Ala.1998), this Court described the manner of obtaining review of the denial of a motion for a change of venue in a civil action and the scope of this Court’s review:
■ “ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). “When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.” Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).
“ ‘In 1987, the Legislature enacted § 6-3-21.1(a), Ala.Code 1975, and adopted the doctrine of forum non conveniens. Section 6-3-21.1(a) states in pertinent part:
“ ‘ “With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”
“ ‘(Emphasis added.) A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice. See generally Ex parte Family Fin. Services, Inc., 718 So.2d 658 (Ala.1998) (quoting Ex parte Gauntt, 677 So.2d 204, 221 (Ala.1996) (Maddox, J., dissenting)).’ ”

Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 344-45 (Ala.2006).

III. Analysis

Safeway and Mims Insurance argue that they have a clear legal right to have the case transferred to Montgomery County pursuant to § 6-3-21.1. It is undisputed that Montgomery County is an appropriate venue to which the case may be transferred.

“‘Because the defendants have established that another appropriate venue exists, it is necessary to determine whether transferring the case to that venue is “in the interest of justice” or necessary “for the convenience of parties and witnesses.” § 6-3-21.1, Ala.Code 1975. This inquiry depends on the facts of the case. Ex parte Jim Burke Auto., Inc., 776 So.2d 118, 121 (Ala.2000).’
“Ex parte Sawyer, 892 So.2d 919, 922 (Ala.2004) (emphasis added). ‘In considering a mandamus petition, we must look at only those facts before the trial court.’ Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995) (emphasis added). Of course, facts must be based upon ‘evidentiary material,’ which does not include statements of counsel in motions, briefs, and arguments. Ex parte McCord-Baugh, 894 So.2d 679, 686 (Ala.2004). See also Providian Nat’l Bank v. Conner, 898 So.2d 714, 719 (Ala.2004).”

ADT Security Services, 933 So.2d at 345.

Mims Insurance filed the affidavit of Ralph Mims, its owner and president, in support of its motion to transfer. Ralph Mims testified in his affidavit that his agency, a sole proprietorship, is located in the City of Montgomery approximately two miles from the downtown area, where the Montgomery County courthouse is located. Ralph Mims stated that his agency employed only four full-time employees (himself, his wife, his son, and his grandson), and one part-time employee (his daughter-in-law). He testified that as the corporate representative of the agency, it would be more convenient for him to have this case tried in Montgomery County rather than in Macon County, approximately 35 miles away. He further testified that he expected that his wife and his son would also be called as witnesses and that it would be more convenient for them if the case were tried in Montgomery County. Ralph Mims then stated:

“Due to the close proximity of our office to the Montgomery County Courthouse, it would be much more convenient for Mims Insurance Agency if the case is tried in Montgomery County, because we would more likely be able to continue our business operations much easier with the case being tried in the Montgomery County Courthouse rather than the Macon County Courthouse. Mims Insurance Agency has many customers that come to the business to make payments and complete applications. Since three of the four full-time employees are expected to be involved in this trial, it will be much more convenient for me and the continued operation of the business for the trial to be in Montgomery County.”

Finally, he pointed out that Mims Insurance’s dealings with Anderson occurred in Montgomery County and that the address Anderson listed on the insurance application he filed with Mims Insurance is in Montgomery County.

Safeway filed the affidavit of Robert Wise, its vice president and general manager, in support of its motion for a change of venue. Wise testified that Safeway is located in Birmingham and that all of its employees and all records, files, and other information pertaining to any policy issued or claim processed by Safeway are located in Birmingham. He stated that Safeway’s investigation of the accident made the basis of Anderson’s claims against Safeway indicated that all actions taken by Safeway had occurred in Birmingham and that all other aspects of the case had occurred in Montgomery County. Wise further testified that it would difficult and inconvenient for Safeway’s employees and managers to travel to Macon County and that it would more convenient and less time-consuming and costly for those employees and managers to travel to Montgomery County.

Anderson did not present any evidence in opposition to Safeway’s and Mims Insurance’s motions to transfer. He states in his brief that the travel time between the City of Montgomery, where the Montgomery County courthouse is located, and Tuskegee, where the Macon County courthouse is located, is not significantly inconvenient; that many people commute daily between Montgomery County and Macon County; that Safeway employees will be required to travel no matter where the trial is held and that the distance between Birmingham and Montgomery County, on the one hand, and Birmingham and Macon County, on the other, is approximately the same; that witnesses testifying in Macon County could return to Montgomery in approximately 30 minutes without any need for an overnight stay in Macon County; and that although he does live in Montgomery County he lives approximately 5 minutes from the county line separating Macon County and Montgomery County. However, it is well settled that statements in a brief are not evidence, and Anderson has not placed any evidence before us to explain why Montgomery County, where he resides, is not a more convenient forum than Macon County.

The facts in this case are strikingly similar to the facts in ADT Security Services, supra; Ex parte Clarksville Refrigerated, Lines I, Ltd., 860 So.2d 1261 (Ala.2003); and Ex parte National Security Insurance Co., 727 So.2d 788 (Ala.1998). In each of these three cases, the defendant did not maintain an office or keep any documents in the county in which the action was filed, the plaintiff did not live in that county, and no meetings between the plaintiff and the defendant occurred in that county. Instead, all meetings between the plaintiff and the defendant in each case occurred in the county to which the defendant sought to have the action transferred. In National Security, the plaintiff had received medical treatment and all of her witnesses resided in the county to which transfer was sought. In Clarksville Refrigerated Lines and ADT Security Services, key witnesses each defendant expected to call in the action lived in the county to which transfer was sought.

Based upon the foregoing facts, this Court in each of those three cases held that the trial court exceeded its discretion when it denied the defendant’s motion to transfer the action and ordered the trial court to transfer the pending action to the county requested by the defendant. The facts of this case compel a similar result.

It is undisputed that neither Safeway nor Mims Insurance maintains an office or keeps any records in Macon County. Anderson does not live in Macon County. No contact between Anderson and Mims took place in Macon County; rather, all contact between them took place in Montgomery County, where Safeway and Mims Insurance seek to have the case transferred. The accident that is the basis of the action took place in Montgomery County. Additionally, many of the witnesses expected to be called in this case live in Montgomery County. The only connection to Macon County that ever existed in this case was that the other party to the motor-vehicle accident that precipitated the action, Slaughter, resided in Macon County. However, Slaughter has now been dismissed from the case, and if he is called as a witness, which appears doubtful because the case now deals solely with allegations of fraud against Safeway and Mims Insurance, he would be the only witness who would be required to travel to Montgomery County from Macon County.

Anderson argues that if this Court allows a defendant to transfer a case every time a defendant who makes venue proper in the county in which an action is filed is dismissed pursuant to a pro tanto settlement agreement, no plaintiff will ever agree to settle with only the “forum defendant” and that allowing such a transfer would discourage settlement in actions involving multiple defendants. Anderson fails to recognize that in this case, even if Slaughter had remained a party, it is still probable that Safeway and Mims Insurance would have been able to make a strong argument that the case should be transferred to Montgomery County pursuant to § 6-3-21.1. Borrowing wording from National Security, supra, we note that “in this case, there is no witness, no document, no transaction, or anything else that would give the action a nexus with [Macon] County that would justify burdening that county with the trial of this case.” 727 So.2d at 790. See also Clarksville Refrigerated Lines, 860 So.2d at 1265; Ex parte Employers Modem Life Co., 772 So.2d 433, 436 (Ala.2000); and Ex parte Independent Life & Acc. Ins. Co., 725 So.2d 955, 957 (Ala.1998). Consequently, the trial court exceeded its discretion in denying Safeway and Mims Insurance’s motions to transfer.

Based upon the facts properly before this Court, we hold that the “interest of justice” and the “convenience of parties and witnesses” require the transfer of this action from Macon County, a county with no connection to the action at this time, to Montgomery County, a county with a strong connection to the action. Because Safeway and Mims Insurance have clearly demonstrated that they are entitled to the relief requested, their petition is due to be granted.

IV. Conclusion

We grant the petition and direct the trial court (1) to vacate its order denying Safeway’s and Mims Insurance’s motions to transfer this case from the Macon Circuit Court to the Montgomery Circuit Court, and (2) to enter an order transferring the case to the Montgomery Circuit Court for the convenience of the parties and witnesses and in the interest of justice.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . The 42-day presumptively reasonable time for filing this petition for a writ of mandamus expired on February 20, 2006; however, because February 20, 2006, was a state holiday, the petition, filed on February 21, was timely.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Ex parte Mark Wayne GREGORY. (In re Catherine J. Lennartz et al. v. Robert Joiner et al.).
    1050425.
    Supreme Court of Alabama.
    June 30, 2006.

      R. Larry Bradford of Bradford & Sears, P.C., Birmingham, for petitioner.

      J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for respondents.
   HARWOOD, Justice.

Mark Wayne Gregory petitions this Court for a writ of mandamus directing the Colbert Circuit Court to grant his motion for a summary judgment based on an assertion of lack of personal jurisdiction. We grant the petition and issue the writ.

Facts and Procedural History

Fifteen-year-old Erin Lennartz accompanied her friend, Allie Joiner, and Allie’s parents, Robert and Kim Joiner, of Florence, Alabama, on a trip to Colorado. During the course of the trip they spent several days as guests of Kim’s parents, Mark Wayne Gregory (“Gregory”) and Brenda E. Gregory, at their “second home” in Lake City, Colorado. The Greg-orys’ principal home is in Tennessee where they have lived continuously for at least the last 15 years. During that same 15-year period, Gregory, a 65-year-old retired civil engineer, has neither lived nor worked nor done any business in Alabama. On July 5, 2004, Gregory allowed Erin, accompanied by Allie as her passenger, to operate a four-wheel all-terrain motor vehicle owned by Gregory, despite the facts that Erin had never operated the vehicle by herself and that she was not wearing a helmet. Erin lost control of the vehicle and it wrecked, causing Erin to sustain a head injury. She received medical treatment in Colorado and subsequently returned to Alabama where she received additional treatment.

Erin and her parents, Catherine J. Len-nartz and Richard Lennartz, all residents of Alabama, sued the Joiners and Gregory in the Colbert Circuit Court alleging negligence or wantonness in entrusting the all-terrain vehicle to Erin, allowing her to operate it, supervising her, and failing to provide her with, or requiring her to wear, a helmet. The-parents claim damages for medical expenses incurred and for the loss of Erin’s services; the nature of Erin’s own claim for damages is not explained by the parties’ submissions to this Court. The complaint acknowledged that Gregory was a resident of Tennessee and that the accident had occurred in Colorado.

Gregory timely answered the complaint, asserting, among other things, that the court lacked personal jurisdiction over him. On September 30, 2005, Gregory moved for a summary judgment on the basis that the court did not have personal jurisdiction over him, given that he was a resident of Tennessee and that the accident occurred in Colorado. The motion was supported by an affidavit from Brenda E. Gregory attesting to her husband’s 15-year continuous residency in Tennessee and his lack of contact with Alabama (also explaining that at the time she provided the affidavit he was in Venezuela working with a missionary, necessitating that she provide the facts in question).

The Lennartzes filed their opposition to Gregory’s summary-judgment motion, asserting (1) that the motion should either be continued or denied pending response by Gregory to interrogatories and document-production requests previously served on him by the Lennartzes and (2) that personal jurisdiction was sustainable as to Gregory because it should have been foreseeable to him that the harm he caused Erin would ultimately have consequences in the State of Alabama. With respect to the unanswered discovery, counsel for the Len-nartzes submitted an affidavit, attaching to it as exhibits a copy of the subject interrogatories and production requests filed two months earlier, asserting that the information sought by the discovery was “essential in order to adequately oppose” the summary-judgment motion. With respect to the “foreseeable consequences in Alabama,” the Lennartzes identified only the medical expenses ultimately incurred there and the loss of Erin’s services. The trial judge denied Gregory’s motion for a summary judgment.

Gregory petitioned this Court for a writ of mandamus on January 3, 2006. Thereafter, on February 21 the Lennartzes filed a motion with the trial court to compel Gregory’s responses to their pending discovery; that motion was granted on February 24. We ordered answer and briefs in the mandamus proceeding. The Len-nartzes filed their “Answer” and separate “Response” on March 27 and Gregory filed his response to their answer on April 6.

Analysis

“[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction. See Ex parte Mclnnis, 820 So.2d 795 (Ala.2001); Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993). ‘ “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.”’ Ex parte Lar grone, 839 So.2d 620, 623 (Ala.2002) (quoting Elliott v. Van Kleef 830 So.2d 726, 729 (Ala.2002)). Moreover, ‘[t]he plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.’ Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002). See also Beasley v. Schuessler, 519 So.2d 551, 553 (Ala.Civ.App.1987); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1351 (2d ed.1990).
“ ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it ‘ “should reasonably anticipate being haled into court [here].” ’ Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). ‘General jurisdiction applies where a defendant’s activities in the forum state are “substantial” or “continuous and systematic,” regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.’ Id.
“But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of ‘ “an action of the defendant [that was] purposefully directed toward the forum State.” Elliott, supra, 830 So.2d at 731 (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)).”

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

Other cases emphasizing the requirement that the conduct of the defendant giving rise to the action be purposefully directed at the forum state include Ex parte United Ins. Cos., 936 So.2d 1049 (Ala.2006); Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004); Ex parte Georgia Farm, Bureau Mut. Auto. Ins. Co., 889 So.2d 545 (Ala.2004); Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819 (Ala.2003); Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459 (Ala.2003); Elliott v. Van Kleef, 830 So.2d 726 (Ala.2002); and Sudduth v. Howard, 646 So.2d 664 (Ala.1994).

Although the Lennartzes undertake to defend on the merits the trial court’s ruling rejecting Gregory’s jurisdictional challenge, they also contend that the ruling should be upheld based on the following three procedural considerations.

The Lennartzes argue that Gregory’s motion for a summary judgment did not contain “a narrative summary of what the movant contends to be the undisputed material facts” as required by Rule 56(c)(1), Ala. R. Civ. P., which omission, they say, warranted denial of the motion. Gregory’s motion relied on the facts stated by the complaint — that he was a resident of Tennessee and that the accident occurred in Colorado — and on his wife’s affidavit stating that the couple had lived continuously in Tennessee for at least the last 15 years and that Gregory had not lived, worked, or done any business in the State of Alabama during that period. Her affidavit reaffirmed that the accident occurred in Colorado. In George v. Raine, 895 So.2d 258, 261-62 (Ala.2004), this Court held that an affidavit attached as an exhibit to a motion for a summary judgment could satisfy the Rule 56(c)(1) requirement for a narrative summary of what the movant contends to be the undisputed facts. In this case, the salient facts put forth by Gregory constituted a sufficient prima facie evidentiary showing that the court had no personal jurisdiction as to him. This Court has explained on several occasions that once a defendant makes a prima facie evidentiary showing that the court lacks personal jurisdiction over him, the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof. Ex parte Covington Pike Dodge, Inc., 904 So.2d at 230; Ex parte Unitrin, Inc., 920 So.2d 557 (Ala.2005); Ex parte United Ins. Cos., supra, 936 So.2d at 1053. Given the narrow and specific focus of Gregory’s summary-judgment motion, his wife’s affidavit suffices as a narrative summary of what he considers to be the undisputed material facts sufficient to satisfy Rule 56(c)(1).

The Lennartzes next argue that by seeking discovery from them through interrogatories and requests for production, Gregory invoked the judicial system of the State of Alabama sufficient to waive his jurisdictional challenge to their action. In support of this contention they cite only Martin v. Drummond Co., 663 So.2d 937 (Ala.1995). That case, however, is factually and procedurally inapposite, involving only a waiver by certain absent class members of any objections they might have had to the jurisdiction exercised over them by the Delaware Court in which the class action was pending, based on the inaction of those class members following various notices concerning the pendency of the class action, including notice of their discretionary right to opt out of the action. In addressing that situation, however, the Martin Court did note that a defendant might waive his right to object to a lack of jurisdiction over his person “by appearing and not contesting the court’s jurisdiction,” given that Rule 12(h)(1), Ala. R. Civ. P., provides that “ ‘[a] defense of lack of jurisdiction over the person ... is waived (A) if omitted from a motion and the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule or included in a responsive pleading or an amendment thereof....’” 663 So.2d at 948. Gregory cannot be charged with such a waiver, however, because he timely presented his challenge to the exercise of personal jurisdiction in his answer to the complaint. See also Novak v. Bern, 896 So.2d 513, 520 (Ala.Civ.App.2004).

The Lennartzes’ final procedural argument in support of the trial court’s denial of Gregory’s summary-judgment motion is that the trial court acted within the discretion accorded it by Rule 56(f), Ala. R. Civ. P., because counsel for the Lennartzes opposed the motion with his affidavit made pursuant to Rule 56(e) asserting that Gregory’s responses to pending discovery were essential to the Len-nartzes’ ability to oppose the motion. We have before us both that affidavit and the combined set of interrogatories and document-production requests. The Len-nartzes now argue that they “should be allowed discovery” from Gregory, “especially on the issue of personal jurisdiction,” citing Ex parte United Ins. Cos., supra, and Ex parte Bufkin, 936 So.2d 1042 (Ala.2006).

In the earlier case of Ex parte Troncalli Chrysler Plymouth Dodge, Inc., supra, the Court concluded that a plaintiff, upon a sufficient showing, might be entitled to discovery in an attempt to prove that a defendant resisting personal jurisdiction was subject to it.

“ ‘ “It is well established that a ... • court has the power to require a defendant to respond to discovery requests relevant to his or her motion to dismiss for lack of jurisdiction.” ’ Andersen v. Sportmart, Inc., 179 F.R.D. 236, 241 (N.D.Ind.1998) (quoting Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 311 (S.D.Ind. 1997)). ‘However, it is also well established that a plaintiff does not enjoy an automatic right to discovery pertaining to personal jurisdiction in every case.’ Id. ‘[T]o be permitted jurisdictional discovery, plaintiff must at least allege facts that would support a colorable claim of jurisdiction.’ Schenck v. Walt Disney Co., 742 F.Supp. 838, 840 n. 1 (S.D.N.Y. 1990) (emphasis added). See also Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 312 (S.D.Ind.1997); Hansen v. Neumueller GmbH, 163 F.R.D. 471, 475 (D.Del.1995); Daval Steel Prods. v. M.V. Juraj Dalmatinac, 718 F.Supp. 159, 162 (S.D.N.Y.1989); Rich v. KIS California, Inc., 121 F.R.D. 254, 259 (M.D.N.C.1988).
“A request for jurisdictional discovery must offer the court ‘more than conjecture and surmise in support of [the] jurisdictional theory.’ Crist v. Republic of Turkey, 995 F.Supp. 5, 13 (D.D.C. 1998). ‘[The] standard is quite low, but a plaintiffs discovery request will nevertheless be denied if it is only based upon “bare,” “attenuated,” or “unsupported” assertions of personal jurisdiction, or when a plaintiffs claim appears to be “clearly frivolous.” ’ Andersen, 179 F.R.D. at 242.”

876 So.2d at 467-68. Thus, the discovery to which a plaintiff is entitled in such a situation is only discovery that is relevant to the issue of personal jurisdiction, and the plaintiff is entitled to that discovery only when the plaintiff has offered the court more than conjecture and surmise in support of the jurisdictional theory.

In both Ex parte United Insurance Cos. and Ex parte Bufkin, this Court found that the respective plaintiffs had satisfied the Troncalli standard and were entitled to conduct discovery limited to the issue of personal jurisdiction before a dismissal for lack of personal jurisdiction could be allowed. The Court explained in Bufkin, after discussing the Troncalli standard:

“We embrace the rule applicable in such circumstance as expressed in Toys ‘R’ Us, Inc. v. Step Two, S.A, 318 F.3d 446, 456 (3d Cir.2003):
“ ‘Although the plaintiff bears the burden of demonstrating facts that support personal jurisdiction, Pinker [v. Roche Holdings Ltd., 292 F.3d 361, 368 (3rd Cir.2002) ], courts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiffs claim is “clearly frivolous.” Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir.1997). If a plaintiff presents factual allegations that suggest “with reasonable particularity” the possible existence of the requisite “contacts between [the party] and the forum state,” Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992), the plaintiffs right to conduct jurisdictional discovery should be sustained.
“ ‘Where the plaintiff has made this required threshold showing, courts within this Circuit have sustained the right to conduct discovery before the district court dismisses for lack of personal jurisdiction. See, e.g., In re Automotive Refinishing Paint Antitrust Litigation, [No. 1426, July 31, 2002] (E.D.Pa. July 31, 2002) [not reported in F.Supp.2d] (denying motion to dismiss and permitting jurisdictional discovery where plaintiff made a “threshold prima facie showing of personal jurisdiction over Defendants”); W. Africa Trading & Shipping Co., et al. v. London Int'l Group, et al., 968 F.Supp. 996, 1001 (D.N.J.1997) (denying defendant’s motion to dismiss where the plaintiffs’ “request for jurisdictional discovery is critical to the determination of whether [the court can] exercise personal jurisdiction over the defendant.”); Centralized Health Systems, Inc. v. Cambridge Medical Instruments, Inc., [No. 89-3322, Nov. 8, 1989] (E.D.Pa. Nov. 8, 1989) [not reported in F.Supp.] (holding motion to dismiss in abeyance to permit party to take discovery on jurisdiction where distribution arrangement might satisfy minimum contacts).’ ”

936 So.2d at 1048.

The affidavit filed by the Lennartzes’ counsel did not argue or request that further or additional discovery directed toward the issue of jurisdiction be allowed; rather, it simply stated in a conclusory fashion that the information requested by the pending interrogatories and document-production requests was “essential in order to adequately oppose” Gregory’s summary-judgment motion. Rule 56(e), Ala. R. Civ. P., which allows for opposition to a properly supported summary-judgment motion by way of affidavits setting forth specific facts showing that there is a genuine issue of material fact, dovetails with Rule 56(f), which states:

“Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

Counsel’s affidavit does not state reasons why the Lennartzes at that point could not present facts essential to justify their opposition to Gregory’s assertion of the court’s lack of personal jurisdiction over him. Counsel’s affidavit simply attaches as exhibits the interrogatories and document-production requests and asserts that the information requested by them is “essential” to adequately oppose Gregory’s motion.

We have read each of the interrogatories and each of the document-production requests, however, and it is clear that answers and responses to them could not shed any further light on any of the issues pertinent to the resolution of the jurisdictional challenge. Everything relating to the circumstances of how the accident occurred, including Gregory’s involvement in it, had already been established by the various other submissions with which the Lennartzes supported their opposition, including the affidavits of Erin and Mr. Len-nartz, the respective interrogatory answers of each of the three plaintiffs to Gregory’s interrogatories and to the interrogatories of “the defendants,” the detailed “Narrative Summary of Plaintiff,” and the detailed “Argument of Plaintiff.” It is not disputed that Gregory owned the all-terrain vehicle Erin was driving at the time the accident and that he allowed Erin to operate it without confirming her competency to do so and without requiring her to wear a helmet and knowing that she was a resident of Alabama. The Lennartzes established that the accident and Erin’s injury occurred in Colorado, that she incurred substantial medical expenses there, and that she incurred additional medical expenses upon her return to Alabama.

None of the Lennartzes’ interrogatories and document-production requests propounded to Gregory seek any information concerning any contacts he might ever have had with Alabama, focusing exclusively on the circumstances of the accident. Thus, it is patent that this discovery sought no information relevant to the jurisdiction question, much less information “essential” to a resolution of that issue. The Lennartzes’ interrogatories and document-production request were mailed to Gregory by the Lennartzes’ counsel on September 8, 2005, and presumably were “due” when their counsel filed his affidavit on November 14, 2005, although that is not stated in the affidavit. As noted earlier, however, only after the motion for a summary judgment was denied and after Gregory had filed his petition for a writ of mandamus with this Court did the Len-nartzes move the trial court to compel responses to their pending discovery. Gregory filed his answers and responses to that discovery the month after the court entered its order compelling the same. None of the information supplied, all of which seems accurately responsive to the various interrogatories and requests, contradicts any of the jurisdictional information asserted by the Lennartzes, or supplies any information otherwise pertinent to the issue of jurisdiction.

Accordingly, even though we assume that Gregory’s interrogatory answers and document-production requests were due at the time the trial judge denied his summary-judgment motion, no motion to compel that discovery had been filed, no order compelling it had been entered, and the discovery sought did not relate in any way to the jurisdictional issue raised by Gregory and on which the summary-judgment motion was based. The Court concluded its opinion in Bufkin by stating: “[W]e assume that further proceedings with respect to discovery from Bufkin [the Mississippi resident who had filed a motion to dismiss asserting lack of personal jurisdiction over him] will be limited to the issue of personal jurisdiction until that issue is resolved.” 936 So.2d at 1048. The discovery the Lennartzes did file was not so limited, and, as explained, did not relate to the issue of personal jurisdiction in any respect. Therefore, the denial of Gregory’s motion for a summary judgment properly presenting the issue whether the court had personal jurisdiction over him cannot be justified on the basis that there was pending discovery pertinent to the issue of personal jurisdiction.

With respect to the merits, the Lennartzes include within their “Statement of the Issues” in their response to the petition for the writ of mandamus, this statement:

“Plaintiffs by suing defendant Mark Wayne Gregory, et al., separately and severally, sufficiently pled a joint venture to preclude the granting of summary judgment as to defendant Mark Wayne Gregory on the existing record as to personal jurisdiction.”

In their “Summary of the Argument” (see Rule 28(a)(9), Ala. RApp. P.), which precedes the actual argument section of the response (see Rule 28(a)(10)), the Len-nartzes assert, “Defendant Mark Wayne Gregory was engaged in a joint venture with co-defendants, Alabama residents, resulting in the negligent entrustment of a 4-wheel ATV vehicle to minor Erin Len-nartz....” (Lennartzes’ Response, p. 10.) The Lennartzes do not revisit that contention in the ensuing “Argument” section of their response, however, and do not attach or quote from any portions of their complaint or attempt to paraphrase any portions of the complaint. We do not otherwise have a copy of the complaint before us, although we do know from Gregory’s submissions in support of his motion for a summary judgment that paragraph 2 of the complaint alleged that he was a resident of Arlington, Tennessee, and paragraph 3 of the complaint asserted that the accident resulting in Erin’s injuries occurred in Lake City, Colorado.

We also know, as stated earlier, the legal theories the Lennartzes asserted in the complaint against the defendants. The “Narrative Summary of Plaintiff’ and “Argument of Plaintiff,” which the Lennartzes submitted as part of their opposition to Gregory’s motion, describe in detail the circumstances of the accident and the involvement of the various defendants in it but never allude in any way to the possibility of a “joint venture” among the defendants on the occasion in question. For all that appears from any of the submissions available to us, Gregory and the Joiners were nothing more than mere joint tortfea-sors. Granted, in Ex parte United Insurance Cos., we held that the fact that the plaintiffs pleaded with specificity a claim of civil conspiracy among the defendants, coupled with plaintiffs request for the opportunity to conduct further jurisdictional discovery, satisfied the Troncalli standard and warranted allowing discovery on the issue of jurisdiction. The Lennartzes, however, make no such argument, do not suggest in any way that they actually pleaded in their complaint that the defendants were engaged in a “joint venture,” argue no caselaw or other authority relating to that concept, never apparently presented it to the trial court, and do not even include the proposition in the actual argument section of their response to Gregory’s petition for the writ of mandamus. Accordingly, we cannot find that their contention in that regard, such as they make it, provides a reason for the trial court’s denial of Gregory’s motion, given that Gregory’s submissions made a prima facie evidentiary showing that the court had no personal jurisdiction over him, and the Lennartzes were then required to substantiate the jurisdictional allegations in their complaint by affidavits or other competent proof. Ex parte Covington Pike Dodge, 904 So.2d at 229-30.

The Lennartzes’ second and principal substantive argument for recognition of personal jurisdiction over Gregory under the circumstances of this case relates to application of the so-called “effects test.” They rely upon the following statements from Duke v. Young, 496 So.2d 37, 39 (Ala.1986):

“Physical presence [of the defendant within the forum state] merely provides strong, objective evidence of sufficient contacts. The fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct consequences of his actions to be felt by another person residing in another state?
“This same point was established by the United States Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)....
“Crucial to the analysis is the element of foreseeability of the consequences of the defendant’s activities.”

Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), referenced by the Duke Court, involved the intentional libeling of a well-known entertainer who lived and worked in California, by an article authored and edited by two Florida residents, who intended their article to be published in a national magazine having a large circulation in California. The Supreme Court noted that “the article was drawn from California sources, and the brunt of the harm, in terms both of [the entertainer’s] emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered.” 465 U.S. at 788-89, 104 S.Ct. 1482.

The Court concluded that, “based on the ‘effects’ of their Florida conduct in California,” the author and the editor were amenable to personal jurisdiction in California. 465 U.S. at 789, 104 S.Ct. 1482. In that regard, the Court emphasized that the defendants “are not charged with mere un-targeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California.” 465 U.S. at 789, 104 S.Ct. 1482. Because the defendants knew that the article “would have a potentially devastating impact upon [the entertainer]” and “knew that the brunt of that injury would be felt by [the entertainer] in the State in which she lives and works and in which the [magazine] has its largest circulation,” they should reasonably have anticipated being haled into court in California to answer for the truth of the statements made in their article. “An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.” 465 U.S. at 789-90, 104 S.Ct. 1482.

The “Calder effects test” has been limited to intentional-tort cases. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir.1998), and Pavlovich v. Superior Court, 29 Cal.4th 262, 127 Cal.Rptr.2d 329, 58 P.3d 2 (2002). Even in that context, most courts define the Calder test as requiring something more than mere awareness that one’s intentional acts will cause harm in the forum state. E.g., Revell v. Lidov, 317 F.3d 467 (5th Cir.2002); Griffis v. Luban, 646 N.W.2d 527 (Minn.2002). As noted, the present case involves allegations of only negligence and wantonness.

This Court has taken note of the Calder test on a number of occasions, including: Ex parte Dill, Dill, 866 So.2d at 531-34; Andalusia Distrib. Co. v. Singer Hardware Co., 822 So.2d 1180, 1182-84 (Ala.2001); Sudduth v. Howard, 646 So.2d 664, 668-69 (Ala.1994); Keelean v. Central Bank of the South, 544 So.2d 153, 157-58 (Ala.1989)(overruled on other grounds by Professional Ins. Corp. v. Sutherland, 700 So.2d 347 (Ala.1997); Duke, 496 So.2d at 39-40; and Brooks v. Inlow, 453 So.2d 349, 353-54 (Ala.1984)).

In upholding personal jurisdiction over nonresident defendants in Duke, this Court emphasized that Duke’s allegations that the defendants had “conspired to fraudulently conceal a material fact during the [business transaction] negotiations with Duke” did not involve “an example of mere untargeted negligence”; rather, “[t]he defendants’ ‘intentional, and allegedly tortious, actions were expressly aimed at’ Alabama. Calder, supra, 465 U.S. at 789, 104 S.Ct. at 1487, 79 L.Ed.2d at 813.” 496 So.2d at 40. Likewise, in Sudduth, the Court pointed out that the allegations made against the nonresident defendant did not involve allegations of mere untar-geted negligence; “[r]ather, this is an allegation of intentional tortious action expressly aimed at Alabama residents.” 646 So.2d at 669.

As earlier noted, many of our cases emphasize the point that a nonresident should reasonably anticipate being sued in Alabama when the nonresident has “purposely directed” its actions toward this State. E.g., Ex parte Alloy Wheels Int'l, Ltd., 882 So.2d at 827. If the mere fact that an Alabama resident, injured in another state by a completed tort committed there by someone who is not a resident of Alabama, might be expected to suffer further or ongoing damage upon return to Alabama was sufficient to subject the nonresident tortfeasor to personal jurisdiction in Alabama, the cases of Van Kleef, supra, and Troncalli, supra, would have been decided differently. In each case, the conduct of the nonresident defendant in another state caused legally cognizable injury to the plaintiff in the state in which the injury occurred, but with further and ongoing damage to the plaintiff in Alabama. Nonetheless, in both of those cases this Court found an absence of sufficient contacts to warrant the exercise of in personam jurisdiction over the nonresident defendants.

The Lennartzes’ argument concerning the “effects” in Alabama of Gregory’s activities in Colorado is stated in their response to the petition for the writ of mandamus, as follows:

“Defendant Mark Wayne Gregory knew or should have known that the consequences of his allowing a minor to drive a 4-wheel ATV vehicle for the first time, without a helmet, would foresee-ably have direct consequences beyond the state of Colorado, and that injuries sustained would be visited upon minor Erin Lennartz in Colorado, during her transportation from Colorado back to the state of Alabama, and at her residence in the state of Alabama.
“Additionally, the damage[ ] of loss of services, [m]edical expenses sustained by plaintiff Catherine Lennartz and Richard Lennartz, as parents of Erin Lennartz, a minor, were suffered and sustained in the state of Alabama, and it was totally foreseeable that these injuries would have consequences in Alabama.
“Defendant Mark Wayne Gregory allowed an Alabama resident, a minor, to use his 4-wheel ATV motor vehicle, and therefore it was totally foreseeable that injuries sustained by such negligence or wantonness by defendant Mark Wayne Gregory would subject said defendant to litigation in the state of Alabama.”

(Lennartzes’ response, p. 16-17.)

Assuming for the sake of this analysis that Gregory tortiously injured Erin as charged, the tort was completed, and fully accrued, in Colorado. The materials before this Court contain nothing concerning the nature of Erin’s continuing injuries, or the state of her recovery, once she returned to Alabama, but those materials do suggest that the bulk of medical bills resulting from the accident were incurred while she remained in Colorado. As noted earlier, even if the Lennartzes were charging Gregory with intentional tortious conduct, most courts would require something more for the imposition of personal jurisdiction than knowledge on the part of Gregory that, because Erin was an Alabama resident, the intentional acts could eventually cause her to experience harm in Alabama. Moreover, even assuming that the Calder test should be applied in a case involving allegations of nonintentional tor-tious actions, there is no evidence indicating that Gregory’s actions were expressly aimed at Alabama.

In arguing their theory of the “effects” in Alabama of Gregory’s alleged negligence and wantonness in Colorado, the Lennartzes cite only Duke and Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983). Decided a year before Calder, Hanby upheld the exercise of personal jurisdiction over three Mississippi residents who had signed, in Mississippi, a guaranty agreement whereby they personally guaranteed the performance by other parties to a contract involving the sale of an Alabama corporation. The underlying contract, negotiated and executed in Alabama, specifically required that the Mississippi residents execute the guaranty agreement. This Court concluded:

“Irrespective of the singular fact that the nonresident appellants actually signed the guaranty in Mississippi, the Court is of the opinion that the trial court could have found that the guaranty signed by each appellant was a significant aspect of the negotiations which occurred in Alabama and that it was foreseeable that appellants’ transaction would have consequences in this state.”

431 So.2d at 145. In Brooks, supra, decided two months after Calder, this Court observed that the “effects” test approved by the United States Supreme Court in Calder “appears quite similar to the ‘consequences’ test enunciated in [Hanby].” 453 So.2d at 353.

Neither Hanby nor Duke stand for the proposition that negligence or wantonness occurring in another state and not expressly aimed at Alabama can effect personal jurisdiction over the nonresident tortfeasor simply because the Alabama resident injured in that other state returns to Alabama and continues to experience the effects of the injury, the nonresident defendant having no “other” contacts with Alabama.

Conclusion

For all the reasons explained above, we grant Gregory’s petition and issue the writ of mandamus directing the Colbert Circuit Court to vacate its order denying Gregory’s motion for a summary judgment and to enter an order granting the motion on the ground of lack of personal jurisdiction.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . We note the observations of Justice Lyons in his special concurrence in Ex parte Alloy Wheels International, Ltd., 882 So.2d 819 (Ala.2003), pointing out the procedural distinctions attending the use of a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for lack of jurisdiction over the person, and the use to that end of a motion for a summary judgment. 882 So.2d at 827-28.


text:
    ZEDOT CONSTRUCTION, INC. v. RED SULLIVAN’S CONDITIONED AIR SERVICES, INC.
    1041944.
    Supreme Court of Alabama.
    June 30, 2006.

      Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellant.

      David G. Wanhatalo, Jack G. Kowalski, and L. Griffin Tyndall of Burr & Forman, LLP, Birmingham, for appellee.
   LYONS, Justice.

Zedot Construction, Inc., appeals from the Jefferson Circuit Court’s denial of Ze-dot’s motion to compel arbitration.

I.Facts and Procedural History

Zedot, acting as general contractor on a construction project in Jefferson County, entered into a subcontract with Red Sullivan’s Conditioned Air Services, Inc. (“CAS”), under which CAS was to perform certain work on the project. The subcontract contained an arbitration clause.

Because, according to Zedot, CAS’s work on the project was deficient, Zedot terminated CAS and hired a new subcontractor. On January 20, 2005, CAS sued Zedot in the Jefferson Circuit Court, alleging breach of contract, open account, unjust enrichment, and a violation of the Alabama Prompt Pay Act.

On February 24, 2005, Zedot filed a motion to dismiss, which made no mention of the arbitration clause. Rather, Zedot’s motion argued that CAS’s claim was barred by the two-year statute of limitations set out in § 6-5-221, Ala.Code 1975, for civil actions against builders. “Builders” are defined in § 6-5-220, Ala.Code 1975, as “[a]ny individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and at the time of the construction was licensed as a general contractor in the State of Alabama.” (Emphasis added.) In support of its contention that § 6-5-221 applied to CAS’s claims, Zedot attached to its motion to dismiss the affidavit of Joseph Rogers, the executive secretary of the Alabama Licensing Board for General Contractors. Rogers stated in his affidavit that Zedot is a licensed general contractor in Alabama. Because Rogers’s affidavit was not excluded by the trial court, Zedot’s motion to dismiss was converted to a motion for a summary judgment. See Rule 12(b), Ala. R. Civ. P. (“If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. ...”).

On March 4, CAS filed its opposition to Zedot’s motion for a summary judgment. On April 18, without a hearing, the trial court denied Zedot’s motion and ordered Zedot to answer CAS’s complaint within 30 days. On May 18, Zedot filed an answer to CAS’s complaint and a counterclaim alleging breach of contract. In its answer, Zedot pleaded arbitration as an affirmative defense and stated that it asserted its counterclaim only to preserve that claim. On June 16, CAS filed its answer to Ze-dot’s counterclaim. On July 20, Zedot filed a motion to compel arbitration. CAS opposed Zedot’s motion to compel arbitration by arguing that Zedot had waived its right to arbitrate by participating in the litigation process. The trial court agreed and denied Zedot’s motion. Zedot appealed.

II.Standard of Review

“[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999) (emphasis omitted).

III.Analysis

“In order to show waiver by litigation-related conduct, the party opposing arbitration must demonstrate that the movant has substantially invoked the litigation process and thereby the opposing party would be substantially prejudiced if the case were submitted to arbitration. Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). In Moses H. Cone Memorial Hospital [v. Mercury Construction Corp., 460 U.S. 1 (1983)], the United States Supreme Court recognized a strong federal policy favoring arbitration:
“ ‘The [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’
460 U.S. at 24-25 (emphasis added; footnote omitted). In order to establish waiver, the party opposing arbitration bears a heavy burden, and waiver is not lightly to be inferred. Thompson v. Skipper Real Estate Co., 729 So.2d 287, 292 (Ala.1999), and cases cited therein.”

Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 14 (Ala.2006). “[A] presumption exists against a finding that a party has waived the right to compel arbitration.” Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1080 (Ala.2002).

Zedot argues that the trial court erred in denying its motion to compel arbitration because, it says, Zedot had not substantially invoked the litigation process and because CAS will not be substantially prejudiced if it is required to arbitrate its claims against Zedot. Zedot points out that it pleaded arbitration as an affirmative defense in its answer to CAS’s complaint. Zedot contends that its filing of a motion to dismiss asserting the defense of the statute of limitations, which was treated as a motion for a summary judgment and which was the only pleading Zedot filed before it asserted the affirmative defense of arbitration in its answer, does not constitute a substantial invocation of the litigation process. We agree.

“[T]he mere filing of a pleading does not constitute a waiver of the right to compel arbitration.” Salter, 846 So.2d at 1081. “ ‘The mere serving of an answer and the making of a motion to dismiss a complaint does not constitute a waiver’ ” of the right to arbitration. Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1, 3 (Ala.1986) (emphasis added). See, also, Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 726-27 (7th Cir.2004) (“[I]t is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss. See Creative Solutions Group, Inc. v. Pentzer Corp., 252 F.3d 28, 33 (1st Cir.2001); Williams v. Cigna Fin. Advisors, Inc., 56 F.3d 656, 661-62 (5th Cir.1995); Rush v. Oppenheimer & Co., 779 F.2d 885, 888 (2nd Cir.1985); Lake Communications, Inc. v. ICC Corp., 738 F.2d 1473, 1477 (9th Cir.1984).”). Before moving to compel arbitration, Zedot did nothing more than file a motion to dismiss and an answer to CAS’s complaint. That Zedot’s motion to dismiss was treated as one for a summary judgment is, in and of itself, not dispositive of the issue whether Zedot substantially invoked the litigation process. The affidavit attached to Zedot’s motion was simply intended to show that Zedot was a licensed contractor, which is a prerequisite to the application of the statute of limitations set out in § 6-5-221. The affidavit did not impose on CAS a burden to engage in discovery in order to oppose Zedot’s motion.

Further, CAS did not meet its burden of showing that it would be substantially prejudiced if it is forced to arbitrate its claims. Approximately four months passed between the filing of CAS’s complaint and the filing of Zedot’s answer, which raised arbitration as an affirmative defense, and approximately six months passed between the filing of CAS’s complaint and the filing of Zedot’s motion to compel arbitration. During that time, no hearings were held and no discovery took place, other than CAS’s service of interrogatories on Zedot, which CAS did only after it was put on notice, by Zedot’s answer, of Zedot’s intent to seek arbitration. No trial date has been set.

Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998), cited by CAS, does not require us to hold otherwise. In Morrison, Morrison Restaurants, a food-services provider, sued Homestead Village, a retirement community, alleging that Homestead had breached a food-services contract; the contract contained an arbitration clause. After Homestead answered Morrison’s complaint without making mention of arbitration, Morrison filed a motion for a summary judgment, accompanied by a statement of facts, the affidavit of Morrison’s credit manager, a copy of the food-services contract, and copies of several invoices Morrison had sent to Homestead. Homestead responded to Morrison’s summary-judgment motion with its own statement of facts and affidavits but still failed to raise the issue of arbitration. Only after the trial court had granted Morrison’s motion for a summary judgment as to Homestead’s liability did Homestead assert its right to arbitrate. Accordingly, this Court held that Homestead had waived its right to arbitrate:

“Homestead failed to seek mediation or arbitration either in its answer or in its response to Morrison’s motion for summary judgment. In fact, eight months passed from the filing of the complaint before Homestead first asserted its right, in a motion filed on March 24, 1997. Further, and perhaps more important, when Homestead did assert its right to mediation or arbitration under the contract, it was not until after it had suffered an adverse ruling, in the form of the summary judgment as to liability. In light of these facts, we conclude that Homestead’s actions indicate it intended to avail itself of the litigation process in lieu of the mediation/arbitration provisions in the contract. In addition, to refer the case to mediation or arbitration at such a late date would prejudice Morrison.”

710 So.2d at 907.

In the instant case, Zedot pleaded the affirmative defense of arbitration in its answer to CAS’s complaint. And Zedot’s motion to dismiss, converted to a motion for a summary judgment, was substantially different than the summary-judgment motion the trial court considered in Morrison. Zedot’s motion was based only on the statute of limitations and was accompanied by an affidavit intended only to verify that a prerequisite to the application of the statute of limitations was satisfied. In contrast, the motion for a summary judgment in Morrison, which was considered by the trial court after Homestead failed to assert arbitration in its answer and in its response to that motion, required the court to construe the contract and determine whether the evidence presented a question as to the breach of that contract. Finally, the statement in Monison that “perhaps more important, when Homestead did assert its right to mediation or arbitration under the contract, it was not until after it had suffered an adverse ruling, in the form of the summary judgment as to liability,” 710 So.2d at 907, cannot be read to stand for the proposition that a party can never assert its right to arbitrate after it has suffered any “adverse ruling.” In Morrison,' Homestead, the party moving to compel arbitration, had suffered a judgment against it as to liability before it finally raised the issue of arbitration. In the instant case, Zedot had only its motion to dismiss, which had been converted to a motion for a summary judgment, denied. Zedot had not had a judgment entered against it on any aspect of CAS’s claim. Further, as noted, the mere filing of a motion to dismiss, which certainly has the potential to result in an adverse ruling, does not constitute a waiver of the right to arbitration.

IV. Conclusion

As previously noted, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Accordingly, we hold that the trial court erred in ruling that Zedot had waived its right to arbitration by substantially invoking the litigation process. We therefore reverse the trial court’s order denying Zedot’s motion to compel arbitration and remand the cause for further proceedings.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

WOODALL, J., concurs in the result.


author: BRYAN, Judge.

text:
    Charles BROWN and Jennifer Brown v. Gina TARVER.
    2050371.
    Court of Civil Appeals of Alabama.
    June 30, 2006.

      Richard D. Lively, Prattville, for appellants.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

The defendants Charles Brown (“Charles”) and Jennifer Brown (“Jennifer”) appeal a judgment in favor of the plaintiff Gina Tarver in the amount of $925.00. We reverse and remand.

After he was paralyzed in an accident, David Brown (“David”), who was the son of Charles and the father of Jennifer, hired Tarver to take care of him in exchange for a payment of $925.00 per month. The checks Tarver received in payment for taking care of David were drawn on a checking account on which David and his friend Sheila Simersky were the signatories. Neither Charles nor Jennifer were signatories on that account. After David died, Tarver presented for payment the last $925.00 check (“the check”) she had received for taking care of David; however, the bank would not honor the check because a stop-payment order had been placed on the check. The only evidence in the record regarding the identity of the person who placed the stop-payment order on the check was Charles’s trial testimony that his wife had done it.

After the bank refused to honor the check, Tarver, acting pro se, sued Charles and Jennifer in the Montgomery District Court and alleged that they were liable to her for $5,000.00 because, she claimed, they had wrongfully stopped payment of the check. The district court entered a default judgment in favor of Tarver and against Charles and Jennifer in the amount of $1,500.00, and Charles and Jennifer appealed to the Montgomery Circuit Court for a trial de novo.

Following a bench trial at which ore tenus evidence was introduced, the circuit court, without explaining its rationale, entered a judgment in favor of Tarver and against Charles and Jennifer in the amount of $925.00. Thereafter, Charles and Jennifer timely appealed to this court.

On appeal, Charles and Jennifer argue that the circuit court’s judgment is unsupported by the evidence. We agree. Although the circuit court’s judgment was based on ore tenus evidence, the circuit court’s judgment is not entitled to a presumption of correctness because the facts were not in dispute. See, e.g., Cincinnati Insurance Co. v. Nelson, 668 So.2d 539 (Ala.1995). In Nelson, the supreme court explained:

“A presumption of correctness attaches to a trial court’s judgment based on findings of fact after the court has heard oral testimony without a jury; this is the ‘ore tenus’ rule. However, that rule has no application in this case, because the facts are not in dispute. Therefore, the trial court’s judgment is not entitled to any presumption of correctness. Parker v. Barnes, 519 So.2d 945 (Ala.1988).”

668 So.2d at 540. Tarver did not introduce any evidence establishing that Charles or Jennifer had a contractual obligation to pay Tarver the $925.00 or that Charles or Jennifer placed the stop-payment order on the cheek. Therefore, the circuit court’s judgment is not supported by the evidence. Accordingly, we reverse the circuit court’s judgment and remand the case to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and MURDOCK, JJ., concur.

CRAWLEY, P.J., and PITTMAN, J., concur in the result, without writing.


text:
    Karen Denise SIMPSON v. John David SIMPSON.
    2040869.
    Court of Civil Appeals of Alabama.
    June 30, 2006.
    Stephen P. Bussman of Bussman & Taylor, P.C., Fort Payne, for appellant.
    William Eric Colley, Fort Payne, for appellee.
   BRYAN, Judge.

Karen Denise Simpson (“the mother”) appeals a judgment in a postdivorce proceeding insofar as it modified the child-support obligation of John David Simpson (“the father”). We affirm in part, reverse in part, and remand.

The parties divorced in 1999. The divorce judgment awarded the mother primary physical custody of the parties’ minor child and ordered the father to pay child support in the amount of $687 per month. On July 16, 2003, the father filed a petition seeking, among other things, a reduction of his child-support obligation on the ground that the mother’s income had allegedly increased materially since the entry of the divorce judgment. The trial court received ore tenus and documentary-evidence on April 19, 2005. Following the April 19 hearing, the trial court filed a CS-42 Child Support Guidelines form containing the following information:

“Monthly Gross Income “[Father] [Mother] Combined $ 6,058 $2,422 —

“Monthly Adjusted Gross Income 6,058 $2,422 3,480

“Percentage Share of Income 71% 29%

“Basic Child Support Obligation 924

“Health Insurance Costs 499

“Total Child Support Obligation 1,423

“Each Parent’s Child Support Obligation $1,010.33 $412.67

“Adjustment for Payment of Health Insurance — $ 499 - 0

“Recommended Child Support Order $ 511.33 $412.67 —”

On May 24, 2005, the trial court entered a judgment that, among other things, reduced the father’s child-support obligation to $511.33 effective July 16, 2003, the date the father had filed his petition. After filing an untimely postjudgment motion, the mother timely appealed the judgment to this court.

We will first consider the mother’s second argument on appeal. Her second argument is that the trial court erred because, the mother says, it recalculated the father’s child-support obligation effective July 16, 2003, despite an absence of any evidence tending to prove the amount of the mother’s income in 2003 and 2004. However, the mother, in her transcript purchase order, directed the court reporter to transcribe only the father’s testimony at the April 19 hearing — she did not direct the court reporter to transcribe the mother’s own testimony at that hearing. Therefore, the record before us does not contain a full transcript of the April 19 hearing. In Greer v. Greer, 624 So.2d 1076 (Ala.Civ.App.1993), this court stated:

“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Appellate review is limited to the record and cannot be altered by statements in briefs. Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Additionally, evidence presented to the trial court that is not preserved in the record on appeal is conclusively presumed to support the trial court’s judgment.”

624 So.2d at 1077 (citations omitted).

Because the mother did not include her testimony in the record on appeal, we must conclusively presume that her testimony supported the trial court’s finding that the mother’s income was $2,422 per month during the period from July 16, 2003, through April 15, 2005. Greer v. Greer, supra. Accordingly, we cannot reverse the trial court’s judgment on the basis of the mother’s second argument on appeal.

As to her first argument on appeal, the mother argues that the trial court erred in its calculation of the father’s modified child-support obligation because, the mother says, the trial court based its calculation on an erroneous finding that the father’s monthly adjusted gross income was $6,058. The mother argues that the undisputed evidence established that the father’s annual gross income in 2005 was $75,000, which equates to a monthly adjusted gross income of $6,250 rather than $6,058.

The undisputed evidence established that the father’s monthly adjusted gross income during the period from July 16, 2003, through December 31, 2003, was $6,015; that his monthly adjusted gross income during 2004 was $6,058; and that his monthly adjusted gross income became $6,250 effective in 2005. Consequently, the trial court’s calculation of the father’s modified child-support obligation for 2004 was correct; however, it was erroneous for the period from July 16, 2003, through December 31, 2003, and for the period subsequent to 2004. Accordingly, we affirm the trial court’s judgment insofar as it calculated the father’s modified child-support obligation for 2004, and we reverse the trial court’s judgment insofar as it calculated the father’s modified child-support obligation for the period from July 16, 2003, through December 31, 2003, and for the period subsequent to 2004. We remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and MURDOCK, JJ„ concur.

CRAWLEY, P.J., and PITTMAN, J., concur in the result, without writing.


author: MURDOCK, Judge.

text:
    Wendy Darling SCARBOROUGH v. Bryan James DARLING.
    2040659.
    Court of Civil Appeals of Alabama.
    June 30, 2006.

      Trudie Anne Phillips, Anniston, for appellant.
    Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
   MURDOCK, Judge.

Wendy Darling Scarborough (“the mother”) appeals from a judgment of the Cle-burne Circuit Court awarding attorney fees and costs to Bryan James Darling (“the father”) under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. (“the ALAA”). We reverse and remand.

In October 2001, the Cleburne Circuit Court entered a judgment divorcing the mother and the father. The divorce judgment awarded the parties joint custody of their minor child. We note that the father was disabled as the result of a 1999 closed-head injury. The father’s injury caused him to suffer certain deficits in, among other things, concentration and memory. When the divorce judgment was entered, and thereafter through the time of the trial in the present case, the father resided with his grandmother (“the paternal great-grandmother”) in California.

In 2003, the minor child attained the age at which she would begin attending school. Because the father lived in California and the mother lived in Alabama, the physical-custody arrangement in place at that time, allowing each of the parents to have physical custody of the child during alternating three-month periods, was no longer feasible, and a modification proceeding was instituted. In September 2003, the trial court entered a judgment providing that the parties would “continue exercising joint custody”; the judgment further provided, however, that the father would have “primary placement” of the minor child, “subject to the [mother’s] right of placement with the child.” Also, the September 2003 judgment specifically provided that the father “shall immediately notify the [mother] should he move from his grandmother’s residence or should his grandmother’s health decline to the point where she is no longer capable of assisting the [father] in his care of the minor child.” Further, the judgment gave the father “primary authority” as to certain child-custody matters. See Ala.Code 1975, § 30-3-153. After the entry of the September 2003 judgment, the father maintained physical custody of the minor child during the school year.

In mid-March 2004, the paternal great-grandmother was diagnosed with colon cancer. On April 5, 2004, she was hospitalized for surgery to remove the cancerous tissue. While the paternal great-grandmother was recovering from surgery, she was diagnosed with acute leukemia. She remained in the hospital until May 20, 2004, during which time she received an initial round of chemotherapy treatments for her leukemia. During the paternal great-grandmother’s hospitalization, the father’s mother traveled to California and assisted the father and his grandmother. During the summer of 2004, the paternal great-grandmother returned to the hospital for extended stays on two occasions, once because she was suffering from malnourishment as a result of the effects of chemotherapy on her appetite, and once for a second round of chemotherapy treatments.

On June 13, 2004, the mother took physical custody of the minor child for a period of several weeks, in keeping with the par-' ties’ custody arrangement. On July 26, 2004, four days before the minor child was supposed to return to California and begin the first grade, the mother filed a petition to modify custody in which she alleged that a material change in circumstances had occurred since entry of the September 2003 judgment, that the minor child’s best interests would be “promoted by a change of custody” to the mother, and that the mother could “introduce evidence that will overcome the inherent disruptiveness cause by a change of custody.” On the same day, the mother also filed a “Motion for Ex Parte Temporary Restraining Order,” in which she alleged, among other things, that the father was unable to care for the minor child without assistance and that, because of the paternal great-grandmother’s illnesses, the paternal great-grandmother was unable to assist the father. The mother requested that she be awarded pendente lite custody of the minor child; the trial court entered an ex parte order awarding the mother pendente lite custody.

The father filed an answer to the mother’s modification petition, and he counterclaimed seeking attorney fees and costs under the ALAA. Specifically, the father alleged that the mother’s modification petition was “brought without substantial justification and said action is frivolous, groundless in fact and law, vexatious, [and] interposed for improper purposes.” The father also filed a motion to set aside the trial court’s pendente lite custody order. The mother filed an answer to the father’s counterclaim, denying the allegations contained therein.

The trial court entered an order appointing a referee to conduct a hearing as to the pendente lite custody of the minor child. Following the hearing, .the referee issued a written report stating that the pendente lite custody award to the mother should be set aside and that the minor child should be returned to the father. On August 27, 2004, the trial court entered an order confirming the referee’s report and setting aside its ex parte order awarding the mother pendente lite custody.

In November 2004, the trial court conducted an ore tenus proceeding on the mother’s modification petition. After the mother presented her case-in-chief, counsel for the father orally moved the trial court to dismiss the mother’s petition because, he alleged, the mother had failed to meet her burden of proof necessary to support a modification of custody. The trial court recessed the trial to review and consider a deposition that the mother had entered as a trial exhibit. Thereafter, the court reconvened the trial and the following occurred:

“THE COURT: Back on the record. I'have completed reading Dr. Marson’s deposition, Plaintiffs Exhibit Number 21, and in consideration of the Motion to Dismiss the Plaintiffs Petition for Modification of Custody, the proper standard to be applied is the [McLendon] Standard and based on the [McLendon] Standard, the court finds there has not been a material change of circumstances sufficient to change the custody arrangement of the parties, therefore, the Motion to Dismiss for failure of proof is granted.
“Move into your counterclaim [seeking fees and costs under the ALAA],
“MRS. MILLER [ (counsel for the father)]: Yes, sir.' Your Honor, if I could — I have got Bruce Adams on standby regarding attorney’s fees but I can put my client on the stand—
“THE COURT: That is not necessary. You can submit your hours.
“MRS. MILLER: I actually have it itemized, Your Honor. Defendant’s Exhibit Number 21, and expenses are Defendant’s Exhibit Number 22, which are actually the receipts and we would offer Defendant’s Exhibit Number 21 and Defendant’s Exhibit Number 22. It shows hours at 103.41 for a total of attorney’s fees of $13,960.35. And, it shows expenses of $7,454.01, for a total cost of $24,201.76.[ We would offer Defendant’s Exhibit 21 and Defendant’s Exhibit 22.
“THE COURT: And, the attorney’s fee is based on what hourly rate?
“MRS. MILLER: $135.00 per hour, Your Honor.
“THE COURT: Mrs. Phillips [ (counsel for the mother)], is there any dispute as to the reasonableness of the hourly rate. Not that you are agreeing that it should be paid but as to the reasonableness of the rate.
“MRS. PHILLIPS: Your Honor, I don’t charge $135.00 an hour. I guess I would consider that to be unreasonable.
“THE COURT: What do you charge?
“MRS. PHILLIPS: I charge $95.00.
“THE COURT: With that noted, 21 and 22 are admitted.
“THE COURT: Do you wish to cross-examine on the calculation of those expenses. Have you had an opportunity to review them?
“MRS. PHILLIPS: I have not. I just got them this morning.
“THE COURT: Mrs. Phillips, would you like an opportunity to go through those at your leisure and then submit a written objection if you have any?
“MRS. PHILLIPS: Yes, sir, I would.
“THE COURT: I will give you until Friday [November 5, 2004,] to submit any objections to those documents.
“MRS. PHILLIPS: Do you want me to do it like in the form of a brief.
“THE COURT: Just a written objection and set forth what part you’re objecting to. We stand adjourned.”

On November 18, 2004, the trial court entered a judgment denying the mother’s modification petition and granting the father’s request for attorney fees and costs. In pertinent part, the judgment stated:

“Upon consideration of the relevant and admissible evidence, the Court finds as follows:
“1. That the Plaintiff has failed to meet the burden of proof necessary to justify a change in custody and/or placement pursuant to Ex Parte [McLendon], 455 So.2d 863 (Ala.1984).
“2. That the Defendant requested an award of attorney fees and other costs of litigation pursuant to Defendant’s Exhibits 21 and 22. Pursuant to the Plaintiffs attorney’s request, the Court granted until November 5th 2004 for the Plaintiff to submit any objection to the amount requested. On November 5th 2004, the Plaintiffs attorney orally requested that the deadline be extended until November 8th 2004. That on November 10th 2004, two (2) days after the extended deadline, the Plaintiffs attorney delivered her Response to Defendant’s Motion for Attorney Fees. Therefore, the Court accepts without contradiction the Defendant’s calculation in the amount of $24,201.00.
“It is therefore ORDERED, ADJUDGED and DECREED as follows:
“A. The Plaintiffs Petition to Modify custody/placement is hereby DENIED.
“A. The Defendant, Bryan James Darling, is awarded a Judgment against the Plaintiff, Wendy Darling Scarborough, in the amount of $24,201.00 (Twenty-four Thousand, Two Hundred, One and 00/100 — Dollars) for which let execution issue.”

The mother filed a postjudgment motion to alter, amend, or vacate the judgment, which was denied by operation of law. The mother appeals from that portion of the final judgment awarding attorney fees and costs to the father under the ALAA; she does not appeal the denial of her modification petition.

The mother contends that the trial court erred by failing to make specific findings as to the reasons for its award of attorney fees and costs under the ALAA. She also argues that the evidence did not support an award of attorney fees and costs under the ALAA.

Section 12-19-272(a), Ala.Code 1975, provides:

“[I]n any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys’ fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part.”

The ALAA defines the phrase “without substantial justification” as “frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including, without limitation, to cause unnecessary delay or needless increase in the cost of litigation.” Ala.Code 1975, § 12-19-271(1). On the record before us, we do not think it can be concluded that the mother’s petition seeking a change of custody was frivolous, groundless in law or in fact, or interposed merely to vex the father or for other improper purposes. Accordingly, we reverse that portion of the trial court’s judgment awarding attorney fees and costs to the father under the ALAA. See Dickerson v. Dickerson, 885 So.2d 160, 168 (Ala.Civ.App.2003).

Our holding today is based on the undisputed facts that the paternal great-grandmother’s assistance to the father in caring for the minor child was a material factor in the trial court’s earlier judgment awarding primary custody of the child to the father and the paternal great-grandmother’s assistance was plainly jeopardized by the fact that she was diagnosed with acute leukemia and that she was required to undergo extensive medical treatment and hospitalizations as a result of that illness. The record discloses, without contradiction, that during the eight-month period preceding trial the paternal great-grandmother was hospitalized on three occasions for lengthy periods. The first hospital stay was for 46 days. A second hospital stay for 10 days in June 2004 was necessary to treat malnourishment suffered by the paternal great-grandmother as a result of earlier chemotherapy treatments. A third hospital stay was for 29 days. In addition, the paternal great-grandmother was scheduled to begin a third round of chemotherapy two days after the trial, which would require another hospital stay.

Because the paternal great-grandmother’s assistance to the father was important to the care of the minor child and was a material factor in the minor child’s placement with the father, and because the paternal great-grandmother’s ability to provide such assistance was substantially put into question by her illness, it cannot be concluded that the mother’s petition, based as it was on the fact of the paternal great-grandmother’s declining health, was so frivolous, groundless in law, groundless in fact, vexatious, or improper that the mother should be forced to pay the father’s attorney fees and costs pursuant to the ALAA for having sought a custody modification.

Accordingly, we reverse that portion of the trial court’s judgment awarding attorney fees and costs to the father and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

The father’s request for the award of attorney fees on appeal is denied.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

      . Exhibits in the record on appeal indicate that the father was claiming $2,787.40 in additional expenses. It appears that the court's award of $24,201.76 includes an award of these additional expenses.

      . The father argues in his appellate brief that the attorney-fee award could be justified on equitable grounds, independent of the ALAA. Although this court can generally affirm the trial court " ‘on any ground developed in, and supported by, the record,’ ” we will not affirm the trial court "on the basis of a brand new theory never asserted in the trial court.” Lyons v. River Road Constr., Inc., 858 So.2d 257, 265 (Ala.2003) (quoting Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002)). Cf. Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 465 (Ala.2002).