author: STUART, Justice.

text:
    Ex parte HOSPITAL ESPANOL DE AUXILIO MUTUO DE PUERTO RICO, INC. (In re Lisa M. Holsomback and Bobby Holsomback v. Alabama Organ Center et al.).
    1050685.
    Supreme Court of Alabama.
    May 26, 2006.

      Jennifer Devereaux Segers of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner Hospital Español de Auxilio Mutuo de Puerto Rico, Inc.
    Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for respondent LifeLink Foundation, Inc.
    Stephen D. Heninger of Heninger Garrison Davis, LLC, Birmingham, for respondents Lisa M. Holsomback and Bobby Hol-somback.
    Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for amicus curiae Alabama Trial Lawyers Association, in support of the respondents.
   STUART, Justice.

Hospital Español de Auxilio Mutuo de Puerto Rico, Inc. (“Auxilio Mutuo”), petitions this Court for a writ of mandamus directing the trial court to vacate its order denying its motion to dismiss Lisa M. Hol-somback and Bobby Holsomback’s claims against it for lack of personal jurisdiction and to enter an order dismissing the Hol-sombacks’ complaint insofar as it asserts claims against Auxilio Mutuo. We grant the petition.

Facts

On August 1, 2003, Lisa M. Holsomback and her husband, Bobby, sued LifeLink Foundation, Inc., Alabama Organ Center, and others, alleging that a kidney she had received by transplant at University of Alabama at Birmingham Hospital was infected with hepatitis C. By amendment, the Holsombacks substituted Auxilio Mu-tuo for the fictitiously named defendant who was identified in the complaint as the entity “responsible for the testing and suitability of the donor kidney.” The Hol-sombacks allege that Auxilio Mutuo negligently or wantonly caused or allowed “inadequate, improper, and erroneous testing to be performed on the serology tests for the donor kidney.”

Auxilio Mutuo moved to dismiss the complaint on the basis that the trial court lacked in personam jurisdiction over it. Auxilio Mutuo stated:

“[The Holsombacks] attempt to invoke the jurisdiction of this Court by alleging that Auxilio Mutuo’s testing of the subject donor kidney in the Commonwealth of Puerto Rico for Defendant LifeLink constitutes sufficient contact with the State of Alabama. While Auxilio Mutuo denies that it engaged in forum activities which would make it amenable to suit in this state, Auxilio Mutuo would further show unto this Court that [the Holsom-backs] cannot establish specific jurisdiction or general jurisdiction over [Auxilio Mutuo]. Specific jurisdiction over Auxi-lio Mutuo is unwarranted because this cause of action did not arise out of, nor is it related to, any contact of Auxilio Mutuo to the State of Alabama. General jurisdiction is also unwarranted, because there are no systematic and continuous contacts between Auxilio Mutuo and the State of Alabama. Courts can exercise general jurisdiction only when the [defendant is domiciled in the forum or its activities in the forum are ‘substantial, continuous and systematic.’ Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 415-416, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984).”

(Auxilio Mutuo’s petition, Appendix 3.) In support of its motion, Auxilio Mutuo attached an affidavit from the hospital administrator at Auxilio Mutuo, stating:

“1. My name is Jorge L. Matta and I am the Administrator of Hospital Espa-ñol Auxilio Mutuo de Puerto Rico, Inc., which is also known as Auxilio Mutuo. I have personal knowledge of the facts stated in this Affidavit.
“2. Auxilio Mutuo is a Puerto Rican corporation, with its principal place of business located in San Juan, Puerto Rico.
“3. Auxilio Mutuo does not have, and never has had, any employees or officers permanently engaged in business in the State of Alabama.
“4. Auxilio Mutuo does not engage in any persistent course of conduct or derive substantial revenue from goods used or consumed or services rendered in the State of Alabama.
“5. Auxilio Mutuo does not own real property or personal property within the State of Alabama and has never done so.
“6. Auxilio Mutuo is not authorized, licensed or registered to do business in the State of Alabama and has never been so authorized, licensed or registered.
“7. Auxilio Mutuo pays no business taxes in the State of Alabama.
“8. Auxilio Mutuo is not engaged in substantial, continuous or systematic activities in the State of Alabama.
“9. Auxilio Mutuo does not engage in television or radio advertising in the State of Alabama.
“10. Auxilio Mutuo has never voluntarily consented to jurisdiction of the State of Alabama in any lawsuit.
“11. Auxilio Mutuo did not have knowledge on September 29, 2001, that the donor kidney which is the subject of this lawsuit was going to be transported to the State of Alabama for transplantation.
“12. Auxilio Mutuo did not have a contract to perform testing of the donor kidney which is the subject of this lawsuit -with any patient, hospital or health care provider who resides or has its principal place of business in the State of Alabama.”

(Auxilio Mutuo’s petition, Appendix 4.)

The trial court conducted a hearing on Auxilio Mutuo’s motion to dismiss. At the hearing, the Holsombacks opposed the dismissal of Auxilio Mutuo, arguing that the court had in personam jurisdiction over Auxilio Mutuo because, they said, “its contacts with Alabama, while few, gave rise to this lawsuit” and its “conduct and connection with Alabama are such that [Auxilio Mutuo] should reasonably anticipate being haled into court there.” In support of their argument, the Holsombacks submitted an affidavit from Jean A. Davis, the executive vice president, OPO (organ procurement organization) services of LifeL-ink Foundation. She stated:

“LifeLink Foundation, Inc., and its affiliate, LifeLink of Puerto Rico, are members of the United Network for Organ Sharing (UNOS), which segregates its member organizations into designated regions identified for organ recovery and distribution. UNOS Region 3 is one of the 11 UNOS Regions, and includes transplant centers located in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and Puerto Rico. Organs recovered for transplant are most frequently allocated/shared for transplant on a local, then a regional basis. LifeL-ink of Puerto Rico has been in operation since 1994. Significant increases in organ/tissue recovery have occurred in this time frame.
“Auxilio Mutuo Hospital is a transplant center member of UNOS located within Region 3. The Auxilio Mutuo Hospital Clinical Laboratory is a CLIA [Clinical Laboratory Improvement Amendments, 42 U.S.C. § 263a et seq.] certified laboratory[] owned and operated by Auxilio Mutuo Hospital. Auxilio Mutuo Hospital Clinical Laboratory routinely performs serological testing on organ/tissue donors recovered in Puerto Rico. These organs are shared throughout the United States, with the significant majority being placed in Region 3.
“Any Region 3 UNOS member and participant in the organ sharing network is well aware that organs and tissue it procures or tests are routinely sent to and utilized by transplant centers throughout Region 3, including Alabama. In addition to this systematic sharing of organs and tissue procured from donors it has tested, Auxilio Mutuo Hospital routinely receives organs (kidneys) for transplant from outside Puerto Rico. UNOS data available to UNOS members such as LifeLink and Auxilio Mu-tuo shows that in calendar year 2004, thirteen (13) kidneys were imported to Auxilio Mutuo Hospital for transplant, and for calendar year 2005, through October 5, 2005, six (6) kidneys were imported for transplant at Auxilio Mutuo.
“LifeLink Foundation, Inc., maintains computer-stored data concerning the organs and tissue recovered and transplanted through its affiliate organizations, including LifeLink of Puerto Rico....
“Between January 1, 1994 and September 29, 2001 of the 342 kidneys recovered in Puerto Rico and transplanted, twenty-five (25), or 7%, were transplanted in Alabama. This is the highest number/percentage for any area outside of Puerto Rico. If a kidney was obtained from a donor and did not stay in Puerto Rico, Alabama was the most likely place it would be sent for transplant.
“Between September 30, 2001, and September 12, 2005, forty-three (43) organ/bone donors were recovered through LifeLink of Puerto Rico. Auxilio Mutuo Hospital Clinical Laboratory provided serological testing in all such cases. The resulting organs/tissue recovered are often placed outside of Puerto Rico and many within UNOS Region 3. The donor whose kidney was transplanted to Lisa Holsomback at the Alabama Organ Center on September 30, 2001, whose serum was tested by Auxilio Mutuo Clinical Laboratory, was also an organ/bone donor.
“Approximately 1720 bone grafts were produced from these forty-three (43) organ/tissue donors tested by Auxilio Mu-tuo Clinical Laboratory; 341 of which, or 19.8% were placed in Alabama. This means that approximately one fifth of all of the bone grafts produced from Auxilio Mutuo tested organ/bone donors were shipped to and utilized in Alabama. Of the forty-three (43) organ/bone donors tested by Auxilio Mutuo Hospital Clinical Laboratory twenty-five (25) donors generated at the least one bone graft placed in Alabama. That is, when Auxi-lio Mutuo Clinical Laboratory performs testing on an organ/bone donor like the donor in this case, there is a 58% (3 out of 5) likelihood that one or more grafts from that donor will end up in Alabama.”

(Auxilio Mutuo’s petition, Appendix 7.) Auxilio Mutuo submitted another affidavit from its hospital administrator, Jorge L. Matta, in response to Davis’s affidavit; that affidavit stated:

“2. I have reviewed the affidavit of Jean Davis which is dated October 11, 2005 and which has been filed by [the Holsombacks’] counsel in this litigation.
“3. The affidavit of Jean Davis is apparently being used by [the Holsom-backs] in an effort to show that Auxilio Mutuo has sufficient contacts with the State of Alabama so as to have Alabama courts subject this Puerto Rican Hospital to in personam jurisdiction.
“4. The affidavit of Jean Davis referenced above presents allegations of fact which are not known by Auxilio Mutuo. More specifically, the affidavit of Jean Davis sets forth statements purporting to show the number and percentage of donated organs/bone grafts which has its serums tested in Puerto Rico and are eventually sent to Alabama.
“5. However, Auxilio Mutuo does not determine where an organ/bone graft donated from Puerto Rico will be sent outside of the Commonwealth. Such deT terminations are strictly within the purview of LifeLink and not Auxilio Mutuo. Furthermore, Auxilio Mutuo does not deliver and is not involved in the delivery of any bone grafts or organs to any State in the United States for transplantation. This is done by LifeLink, not Auxilio Mutuo.
“6. Auxilio Mutuo does not maintain records which reflect the ultimate destination of the organ or bone graft materials tested for LifeLink Foundation by Auxilio Mutuo’s laboratory. It is aware through this claim that the organs (one of which is the subject of this lawsuit) were delivered to the State of Alabama. However, Auxilio Mutuo does not maintain records which show what other se-rological testing was done for organs/bone graft materials delivered to the State of Alabama by LifeLink.”

(Auxilio Mutuo’s petition, Appendix 8.)

Auxilio Mutuo also submitted its answer to certain interrogatories, in which Auxilio Mutuo stated that it did not deliver organs or bone grafts to any state in the United States for transplantation; that when conducting serological testing pursuant to an agreement between Auxilio Mutuo and LifeLink Foundation, it communicated directly with LifeLink by either lab reports or telephone or both; that it does not communicate with the recipient of the organ or bone-graft material; and that at the time it tested the blood serum from the kidney transplanted into Holsomback, Auxilio Mutuo did know that there was a possibility that the kidney might be sent to a state within the United States.

After considering the arguments and the evidence, the trial court denied Auxilio Mutuo’s motion to dismiss, stating, in pertinent part, in its order:

“[I]t appears that Auxilio Mutuo’s contacts with Alabama are as follows: it tested organs to be sent to Alabama for transplant; it tested serum from the kidney in question and found it to be negative for infectious disease. The result was wrong in that the kidney was infected with the hepatitis virus. Based upon that test result, LifeLink brought the infected kidney to Birmingham where it caused [the Holsombacks’] damagef ]....
“The ‘product’ placed in the stream of commerce.is not an ordinary one. The defendants placed into the stream of commerce a human organ that was inherently dangerous. Other courts have looked at such situations and found that where a non-resident defendant deals in such inherently dangerous products, a lesser showing than is ordinarily required will support jurisdiction. Poyner v. Erma Werke GmbH, 618 F.2d 1186, 1192 (6th Cir.1980); O’Neil v. Picillo, 682 F.Supp. 706 (D.C.R.I.1988).
“The undisputed facts establish that organs and tissue that are tested by Auxilio Mutuo are shared throughout the United States with the significant majority being placed in UNOS [United Network for Organ Sharing] Region 3, which includes transplant centers located in Alabama. Between January 1, 1994 and September 29, 2001, 25 of the 342 kidneys recovered in Puerto Rico were transplanted in Alabama. This means that 7% were used in Alabama, the highest percentage for any area outside Puerto Rico itself. If a kidney was obtained from a donor in Puerto Rico and did not stay in Puerto Rico, Alabama was the most likely place it would be sent for transplant.... The submitted statistics show that when Auxilio Mutuo performs testing on an organ/bone donor as in this case, there is a 58% likelihood that one or more grafts from that donor will end up in Alabama.
“Due to the nature of this organ sharing network and the inherent necessity for regulated serological testing established by UNOS, the court finds that there are sufficient minimum contacts with the State of Alabama to support in personam jurisdiction over Auxilio Mu-tuo in this case. The State of Alabama has a deep and significant interest in adjudicating this matter. The UAB [University of Alabama at Birmingham] kidney transplant center is the second largest such center in the United States. The facts established regarding the UNOS network sharing guidelines and the statistical connection between Auxi-lio Mutuo and Alabama are significant. Auxilio Mutuo could reasonably anticipate that its tested organs would be transplanted in Alabama. The quality and nature of this activity is so important and so inherently dangerous that Auxilio Mutuo could reasonably anticipate being ‘haled into court’ in Alabama if it erroneously tested an organ that was ultimately transplanted in this state.
“It is of utmost importance that the Alabama medical institutions receiving organs for transplant and the patients who are the recipients of such organs have confidence that the organs they have acquired are safe. This court’s notions of fair play and substantial justice are not offended by the exercise of in personam jurisdiction over Auxilio Mutuo under the undisputed facts of this case. On the contrary, it would violate such notions if an Alabama victim of such an error were denied access to the courts of this state.
“It is, therefore, Ordered and Adjudged that the motion to quash service and to dismiss this defendant for lack of in personam jurisdiction filed by [Auxilio Mutuo] is hereby denied.”

(Auxilio Mutuo’s petition, Appendix 10.)

Standard of Review

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte
Carter, [807 So.2d 534,] 536 [(Ala.2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). ‘An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.’ Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).
“ ‘ “ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).’ ”
‘Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002)(quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.” Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)(citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del. 1995)(“When a defendant files a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.”)(citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).’
“Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004).”

Ex parte Bufkin, 936 So.2d 1042, 1044-45 (Ala.2006).

Legal Analysis

Auxilio Mutuo argues that the trial court erred in refusing to dismiss the Holsom-backs’ claims against it because, it says, it does not have the minimum contacts with the State of Alabama necessary for the court to have personal jurisdiction over it.

The determination of a court’s jurisdiction over a foreign entity falls within the purview of this State’s “long-arm statute,” which is actually Rule 4.2, Ala. R. Civ. P. Although Rule 4.2 was significantly revised effective August 1, 2004, because the underlying conduct occurred and this complaint was filed before that date, this Court applies Rule 4.2 as it existed before the amendment to the facts of this case.

. In Leithead v. Banyan Corp., 926 So.2d 1025, 1029-30 (Ala.2005), this Court addressed a similar situation and applied the law existing before the August 1, 2004, amendment to Rule 4.2, stating:

“A state has jurisdiction over a person or corporation so long as its ‘long-arm statute’ reaches the person or corporation and the state’s jurisdiction comports with the requirements of due process. This Court has held that Alabama’s long-arm ‘statute,’ which is actually Rule 4.2, Ala. R. Civ. P., extends to the limits
of due process. Ex parte Mclnnis, 820 So.2d [795,] 802 [ (Ala.2001) ]; Duke v. Young, 496 So.2d 37, 39 (Ala.1986). At the time relevant to this action, Rule 4.2(a)(1)(B) provided that an ‘[appropriate basis exists for service of process outside of this state upon a person in any action in this state when ... the person has sufficient contacts with this state, as set forth in subdivision (a)(2) of this rule.... ’ Subdivision (a)(2), in turn, set forth eight categories of action that established the necessary ‘sufficient contacts’ if a person engaged in any one of them. In the event that none of the specific actions listed brought the defendant within the State’s jurisdiction, subdivision (a)(2)(I) provided that the State could assert jurisdiction over the person if he otherwise had ‘some minimum contacts with this state and, under the circumstances, it is reasonable to require the person to come to this state to defend an action.’ This ‘catchall’ provision authorized asserting jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
“ ‘ “A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.” Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it “ ‘should reasonably anticipate being haled into court [here].’ ” Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986)(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“ ‘Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). “General jurisdiction applies where a defendant’s activities in the forum state are ‘substantial’ or ‘continuous and systematic,’ regardless of whether those activities gave rise to the lawsuit.... [A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.” Id.]
“ ‘But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of “‘an action of the defendant [that was] purposefully directed toward the forum State.’ ” Elliott [v. Van Kleef, 830 So.2d 726, 731 (Ala.2002) ] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). “This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ’ ” Elliott, 830 So.2d at 731 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).’
“Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d [519] at 525-26 [ (Ala.2003) ]....
“As noted, for general jurisdiction to apply the out-of-state defendant’s contacts with Alabama must be ‘substantial’ or ‘continuous and systematic.’ Ex parte Dill, Dill, supra. Contacts may constitute general contacts ‘regardless of whether those activities gave rise to the lawsuit.’ Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).”

926 So.2d at 1029-80 (footnotes omitted; some bracketed language added.)

Auxilio Mutuo contends that the Hol-sombacks cannot establish that the Jefferson Circuit Court has either general or specific personal jurisdiction over it. Specifically, Auxilio Mutuo argues that neither has it engaged in “continuous and systematic” contacts with Alabama, nor is there any nexus between its conduct and the Holsombacks’ allegations. Auxilio Mutuo emphasizes that Alabama law requires that the “substantial connection” required to support a finding of minimum contacts must be by an action of the nonresident defendant “purposefully directed toward” Alabama and not the result of the “unilateral activity of another person or a third person.” Auxilio Mutuo maintains that the evidence establishes that its contacts are solely with LifeLink and that it has no contact whatsoever with the donor of the organ or bone-graft materials or with the arrangements for the ultimate donation and transplant of the organ or bone graft. Therefore, it maintains that it does not have minimum contacts with Alabama sufficient to be haled into court here.

The Holsombacks argue that Auxilio Mutuo has minimum contacts with this State because, they say, Auxilio Mutuo is a member of the United Network of Organ Sharing (“UNOS”) and the nature of the operations of UNOS in procuring, testing, and transplanting human organs is narrow and highly regulated, and, consequently, creates “reasonable anticipation” that its members will be subjected to the jurisdiction of Alabama.

In support of their argument, the Hol-sombacks urge that the trial court properly applied a lesser standard in determining that Auxilio Mutuo had minimum contacts with Alabama because they agree with the trial court that the human organ placed in Alabama’s stream of commerce was “inherently dangerous.” In its order, the trial court relied on the holdings in Poyner v. Erma Werke GmbH, 618 F.2d 1186, 1192 (6th Cir.1980), and O’Neil v. Picillo, 682 F.Supp. 706 (D.R.I.1988), which involved the placement of a handgun and hazardous waste, respectively, into the stream of commerce. In Poyner and O’Neil, the courts required a lesser showing of minimum contacts to establish personal jurisdiction because of the nature of the product the defendants had placed in the respective state’s stream of commerce.

Auxilio Mutuo and LifeLink argue, and we agree, that a human organ is not an “inherently dangerous product” and, therefore, that the lesser standard applied in the trial court’s analysis was improper.

In Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958), this Court, in determining whether a perfume bottle was inherently dangerous, quoted the following definition of a product that is inherently dangerous to human life or health from 42 A.L.R. 1243 at 1244:

“ ‘An article may be said to be inherently dangerous where the danger lies in the nature or character of the article. Gas, gasoline, poison, gunpowder, dynamite, etc., are illustrations of articles which are inherently dangerous. The manufacturer’s sale of any of these articles as and for some other article not inherently dangerous will render him liable to anyone injured thereby....’
“Articles or substances held not to be inherently dangerous within the meaning of the rale include a chain, Employers’ Liability Assur. Corp. v. Columbus McKinnon Chain Co., D.C.N.Y., 13 F.2d 128 [ (1926) ]; a bar of soap, Barrango v. Hinckley Rendering Co., 230 Mass. 93, 119 N.E. 746 [ (1918) ]; a castiron pipe elbow, Lee v. Walworth Co., D.C.N.Y., 1 F.R.D. 569 [ (1940) ]; cattle manure, McMurray v. Vaughn’s Seed Store, 117 Ohio St. 236, 157 N.E. 567 [(1927)]; carbonic acid in bottled drinks, Graham v. Cloar, 30 Tenn.App. 306, 205 S.W.2d 764 [ (1947) ]; a cosmetic box decorated with a metal star, Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 [ (1948) ]; a crate in which an appliance was packed, O’Neil v. American Radiator Co., D.C.N.Y., 43 F.Supp. 543 [ (1942) ]; an electric body-vibrating machine, Robbins v. Georgia Power Co., 47 Ga.App. 517, 171 S.E. 218 [ (1933) ]; an electric stove, Roettig v. Westinghouse Electric & Manufacturing Co., D.C.Mo., 53 F.Supp. 588 [ (1944) ]; an elevator, McDonald v. Haughton Elevator & Machine Co., 60 Ohio App. 185, 20 N.E.2d 253 [ (1938) ]; Zieman[n] v. Kieckhefer Elevator Mfg. Co., 90 Wis. 497, 63 N.W. 1021 [ (1895) ]; an exercising device, Heggblom v. John Wanamaker New York, 178 Misc. 792, 36 N.Y.S.2d 777 [ (1942) ]; a flatiron, Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 135 N.E. 223 [ (1922)]; a gas stove, McCabe v. Boston Consol. Gas Co., 314 Mass. 493, 50 N.E.2d 640 [(1943)]; a gate stop, Schindley v. Allen-Sherman-Hoff Co., 6 Cir., 157 F.2d 102 [ (1946) ]; hair dye, Karr v. Inecto, Inc., 247 N.Y. 360, 160 N.E. 398 [(1928)]; a hay baler, Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853 [ (1948) ]; a hot water tank, Giberti v. James Barrett Mfg. Co., 266 Mass. 70, 165 N.E. 19 [ (1929) ]; lubricating oil, Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245, 11 L.R.A., N.S., 238 [ (1907) ]; mincemeat, Salmon v. Libby, McNeil & Libby, 114 Ill.App. 258 [ (1904) ]; a nailed shoe sole, Kerwin v. Chippewa Shoe Mfg. Co., 163 Wis. 428, 157 N.W. 1101, L.R.A. 1916E, 1188 [ (1916) ]; a ‘pearburner,’ Talley v. Beever & Hindes, 33 Tex.Civ. App. 675, 78 S.W. 23 [ (1903) ]; a porch swing, Osheroff v. Rhodes-Burford Co., 203 Ky. 408, 262 S.W. 583 [ (1924) ]; a refrigerator, Borg-Warner Corporation (Norge Division) v. Heine, 6 Cir., 128 F.2d 657 [ (1942) ]; a sidesaddle, Bragdon v. Perkins-Campbell Co., 3 Cir., 87 F. 109, 30 C.C.A. 567, 66 L.R.A. 924 [ (1898) ]; a sofa, Simmons Co. v. Hardin, 75 Ga.App. 420, 43 S.E.2d 553 [ (1947) ]; a steel oil drum, Moore v. Jefferson Distilling & Denaturing Co., 169 La. 1156, 126 So. 691 [(1930)]; a spring clamp with lugs to keep lid on glass jar, Crandall v. Stop & Shop, Inc., 288 Ill.App. 543, 6 N.E.2d 685 [ (1937) ]; a voting machine, Creedon v. Automatic Voting Mach. Corporation, 243 App. Div. 399, 276 N.Y.S. 609 [(1935)], affirmed 268 N.Y. 583, 198 N.E. 415; and an ordinary wooden bed, Field v. Empire Case Goods Co., 179 App. Div. 253, 166 N.Y.S. 509 [ (1917) ]; Isbell v. Biederman Furniture Co., Mo.App., 115 S.W.2d 46 [ (1941) ].”

268 Ala. at 231-32,105 So.2d at 848-49.

Applying the above definition, we hold that a human organ is not an inherently dangerous product. While the human kidney involved in is this particular case was defective, human kidneys in general are not inherently dangerous. Therefore, we need not address the argument of Auxilio Mutuo and LifeLink regarding the propriety of the trial court’s use of a lower standard for finding the existence of minimum contacts for defendants placing inherently dangerous products into the stream of commerce.

We also agree with Auxilio Mutuo that the Holsombacks’ evidence does not establish that Auxilio Mutuo has minimum contacts with this State so as to establish personal jurisdiction. In particular, the evidence does not establish a nexus between Auxilio Mutuo and Alabama arising out of “ ‘an action of [Auxilio Mutuo that was] purposefully directed toward [Alabama].’ ” Elliott v. Van Kleef, 830 So.2d 726, 731 (Ala.2002)(quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). While we agree with the Holsombacks and respondent LifeLink that Auxilio Mutuo provided an important link in the organ-transplant process, the evidence does not establish that Auxilio Mutuo had a substantial connection with Alabama. Although Auxilio Mutuo does test organs and bone grafts that appear to have been distributed in Alabama, it does not determine where the organs and bone grafts it tests are delivered; it does not engage in any aspect of the delivery of the organs and bone grafts to this State; and it does not solicit directly or indirectly business in this State. Cf. Slaughter v. Life Connection of Ohio, 907 F.Supp. 929 (M.D.N.C.1995)(holding that Life Connection of Ohio had sufficient contacts with North Carolina to establish specific jurisdiction because, among other factors, Life Connection of Ohio sent organs to North Carolina), and Bergherr v. Sommer, 523 N.W.2d 17 (Minn.Ct.App.1994)(holding that a Minnesota court had personal jurisdiction over a Texas laboratory that tested a Minnesota plaintiffs pap smear because, among other reasons, the Texas laboratory solicited business from Minnesota through its agreement with an intermediary laboratory). Nothing before us establishes that Auxilio Mutuo purposefully directed any action toward Alabama.

Because the Holsombacks have failed to present evidence indicating that Auxilio Mutuo had contacts with Alabama sufficient to confer personal jurisdiction over Auxilio Mutuo, the trial court erred in denying the motion to dismiss filed by Auxilio Mutuo.

Conclusion

Auxilio Mutuo has established a clear legal right to a dismissal of the Holsom-backs’ claims against it. Therefore, we grant the petition and issue the writ of mandamus. We direct the trial court to vacate the order denying the motion to dismiss and to enter an order dismissing the Holsombacks’ complaint insofar as it asserts claims against Auxilio Mutuo.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL, J., dissents.

      . A CLIA certified laboratory is a laboratory that has been certified as compliant with the quality standards required to perform laboratory testing of materials derived from the human body, as established by the federal regulations promulgated for Medicare and Medicaid services.

      . LifeLink, although a defendant below, is a respondent to this petition for the writ of mandamus. It is in agreement with Auxilio Mutuo, however, on the issue whether a human organ is an inherently dangerous product.

      . The trial court cited in its order Poyner v. Erma Werke GmbH, supra, and O'Neil v. Picillo, supra, for the proposition that the standard to be met before a court can exercise personal jurisdiction over a nonresident defendant is lowered when the product the defendant has placed in the stream of commerce is inherently dangerous. Neither of the cases cited in the trial court's order is binding on this Court, and we find no Alabama caselaw that allows for such a lowered standard when an inherently dangerous product is involved; however, it is not necessaiy for us to address that question.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Terrance Dewayne CARSON. (In re State of Alabama v. Terrance Dewayne Carson).
    1050518.
    Supreme Court of Alabama.
    June 9, 2006.
    Terrance Dewayne Carson, pro se.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Madeline Lewis, asst. atty. gen., for respondent.
   LYONS, Justice.

Terrance Dewayne Carson petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to order the clerk of the Jefferson Circuit Court to charge Carson a single filing fee for filing Carson’s petition for postconvietion relief under Rule 32, Ala. R.Crim. P. We grant the petition.

I. Facts and Procedural History

On December 12, 2001, Carson pleaded guilty to trafficking in cocaine and to unlawful distribution of a controlled substance. Each guilty plea and the resulting sentence had its own trial court case number, but the guilty pleas to both charges were entered, and each sentence pronounced, in the same plea proceeding. On September 29, 2005, Carson filed in the circuit court a petition for postconvietion relief under Rule 32, Ala. R.Crim. P., challenging the legality of his sentences. Carson also moved for leave to proceed in forma pauperis. The circuit court denied Carson’s in forma pauperis motion, and the circuit clerk’s office informed Carson that, in order to proceed with his Rule 32 petition, he would have to pay two filing fees, one for each judgment.

Carson filed a petition for a writ of mandamus in this Court; we transferred Carson’s petition to the Court of Criminal Appeals. That court denied the petition, and Carson filed another petition for a writ of mandamus in this Court, arguing that he should have been allowed to proceed in forma pauperis or, in the alternative, that he should have had to pay only one filing fee for his Rule 32 petition. We ordered answer and briefs solely on the issue of the amount of the filing fee that Carson should have been charged. In so doing, we implicitly denied Carson’s petition for the writ of mandamus insofar as he argued that the circuit court erred in denying him in forma pauperis status.

II. Standard of Revieiv

“ ‘The writ of mandamus is a drastic and extraordinary writ, to be “issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala.2001) ].”

Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).

III. Analysis

According to Rule 32.1, Ala.R.Crim. P., “[a] petition that challenges multiple judgments entered-in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.” (Emphasis added.) However, “a single petition may be filed against ... several convictions that arose out of one trial.” Reed v. State, 748 So.2d 231, 236 (Ala.Crim.App.1999) (emphasis added). The circuit court concedes in its answer to Carson’s mandamus petition that the judgments at issue here were entered in the same guilty-plea proceeding. Accordingly, we hold that Carson was authorized to challenge his sentences for both judgments in a single Rule 32 petition.

Rule 32.6(a), Ala. R.Crim. P., generally requires a Rule 32 petition to be accompanied by the “filing fee prescribed by law or rule in civil cases in the circuit court.” Section 12-19-71(a)(4), Ala.Code 1975, provides in part: “Notwithstanding any other provision of law, the docket fee shall be one hundred ninety-seven dollars ($197) for civil cases in circuit court in which the matter of controversy, exclusive of interest, costs, and attorney fees does not exceed fifty thousand dollars ($50,000).” A circuit court is also authorized to assess local filing fees against a Rule 32 petitioner. § 12-19-71(c)(2), Ala.Code 1975.

The circuit court concedes that, because Carson was permitted to challenge his sentences for both judgments in a single Rule 32 petition, and because Rule 32.6 authorizes only one filing fee per Rule 32 petition, Carson should be required to pay only one filing fee. Indeed, the circuit court contends that its order denying Carson indigent status actually directed that only one filing fee be paid. Accordingly, we hold that the circuit clerk incorrectly informed Carson that he must file a separate filing fee for each judgment.

IV. Conclusion

Because Carson should have been required to pay only one filing fee for his Rule 32 petition challenging two convictions, we grant Carson’s petition for the writ of mandamus and issue the writ directing the circuit court to order the circuit clerk to charge Carson a single filing fee, the amount of which is to be set by the circuit court under § 12-19-71, Ala.Code 1975.

PETITION GRANTED; WRIT ISSUED.

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

      . The sentences imposed on Carson’s conviction are not clear from the filings in this Court. The circuit court states in its answer to Carson's petition for the writ of mandamus that Carson was sentenced to 20 years’ incarceration, although Carson states that he was sentenced to a total of 30 years. In any event, the details of Carson’s sentence are not relevant to the resolution of this mandamus petition.


author: MURDOCK, Judge.

text:
    Antonio PHILLIPS v. SENTINEL CONSUMER PRODUCTS, INC.
    2020924.
    Court of Civil Appeals of Alabama.
    May 28, 2004.
    Rehearing Denied Dec. 30, 2004.

      Charles G. Spradling, Jr., of Alabama Legal Services, P.C., Anniston, for appellant.
    David A. Posner of Duvin, Cahn & Hutton, Cleveland, Ohio; and James N. Nolan of Walston, Wells, Anderson & Bains, LLP, Birmingham, for appellee.
   MURDOCK, Judge.

Antonio Phillips appeals from a judgment as a matter of law entered by the Calhoun Circuit Court against him and in favor of his former employer, Sentinel Consumer Products, Inc. (“Sentinel”), on Phillips’s claim of retaliatory discharge. We affirm.

Phillips, who is 24 years old, was hired by Sentinel on May 26, 1999, to do cleanup work at its plant. When he was hired by Sentinel, Phillips was given the company’s Employee Handbook (“the Handbook”); Phillips testified that he read and understood the Handbook. Among other things, the Handbook listed “Summary Discharge Offenses,” i.e., conduct that would “subject [the employee] to immediate discharge.” One of those offenses was “Job Abandonment.”

Initially, Phillips only performed cleanup work around the machines in the plant, but he subsequently received training on how to operate “carding machines.” On June 22, 1999, Phillips severely injured his left hand when it got caught in a carding machine that he was operating. The machine severed the tendons in most of his fingers and mangled the tips of some of his fingers. Phillips was taken immediately to the hospital; the next day an orthopedic surgeon performed surgery on Phillips’s left hand for seven or eight hours.

Phillips was excused from work for about a week after the surgery. When Phillips returned to work, he was unable to use his left hand; Sentinel’s human resources supervisor, Pamela Ray, assigned Phillips to a light-duty job in the “fluff’ department. The work involved sweeping cotton off the floor of the plant and placing stickers on boxes. Phillips’s supervisor in the fluff department was Carolyn White. Phillips testified that Ray told him that “if [he] had any questions [about the workers’ compensation process] to talk to her about it, but [that] [he] didn’t have any questions for her as [he could] recall.” Phillips also stated that when he received a doctor’s bill at his home address, Ray told him to bring the bill and others like it to her so that Sentinel could pay them.

On July 19, 1999, toward the end of his shift, Phillips’s wife came to the plant and informed someone that she needed to speak to him. Phillips testified that White went to him and stated that “[his] ride was up front, [and] to see what was going on.” Phillips continued: “So once I [got] back up to the front to see what was going on, I found out I had to leave. So I came back and notified [White] that I was leaving and she said ‘fine.’ ” Phillips testified that he could not remember why he had to leave. On cross-examination, some of this testimony was shown to conflict with Phillips’s earlier deposition testimony. There is no dispute, however, that Phillips left before the end of his shift on July 19, 1999, for some unspecified reason.

The next day, July 20, 1999, Phillips arrived at work on time and worked for most of his shift before being summoned into a conference room in the office of Ed Olsen, the plant manager. Present at the meeting were Olsen, Ray, and White. Phillips testified that Ray handed him a document and asked him to read it. The document stated that Phillips was being “[discharged due to job abandonment on [July 19, 1999]. [Phillips] left work without permission or even informing [his] supervisor prior to departing. Page 19 of the [Handbook] states that job abandonment will be [a] basis for immediate discharge.” Phillips testified that no one explained to him what “job abandonment” meant; however, he also admitted that he had read the Handbook and had understood it. He also testified that no one asked him for an explanation as to why he had left work early on the previous day. Phillips’s employment was terminated, and he has not worked at another job since his termination from employment at Sentinel.

On August 9, 1999, Phillips filed a complaint in the Calhoun Circuit Court seeking workers’ compensation benefits and alleging retaliatory discharge by Sentinel. On August 1, 2000, the parties filed a “Workers’ Compensation Lump Sum Settlement Agreement” (“the Agreement”) with the trial court. In the Agreement, the parties acknowledged that Phillips had been injured on the job and that he had suffered a 26 percent permanent partial disability. Sentinel agreed that it had been paying Phillips’s medical bills pertaining to the injury and that it would continue to do so. The Agreement provided that Sentinel had previously paid Phillips “temporary total disability benefits, amounting to $1,226.75. The parties do hereby agree that said total is the correct sum due [Phillips] for temporary total disability benefits as a consequence of the accident....” Further, the Agreement provided that Phillips would receive $22,000 “as a compromise lump sum indemnity for a permanent partial disability....” Finally, the Agreement provided:

“It is expressly understood and agreed by and between the parties that this settlement agreement and the resulting release does not pertain to, or release [Sentinel] from, the tort actions of retaliatory discharge and/or wrongful termination presently pending before the Circuit Court of Calhoun County, Alabama, which said tort actions for retaliatory discharge and/or wrongful termination are expressly reserved to [Phillips].”

The trial court approved the Agreement in full.

Phillips’s retaliatory-discharge claim was tried before a jury on February 3, 2003. Phillips testified as summarized above concerning his accident and subsequent termination, as well as about his unsuccessful efforts to find other employment after his employment with Sentinel was terminated. Phillips called another witness, Rodriquez Jordan, a former Sentinel employee, who testified to resigning from working there because, after he filed a workers’ compensation claim and returned to work, he was allegedly subjected to repeated threats of termination if he did not increase his productivity. Following the testimony of Phillips and Jordan, Phillips rested his case and Sentinel moved for a judgment as a matter of law on the ground that Phillips had failed to establish that he had filed a workers’ compensation claim before he was terminated, thus failing to present a prima facie case of retaliatory discharge.

The trial court granted the motion and explained to the jury that Phillips had “failed to present evidence to prove that [he] took any steps whatsoever to make a [workers’] compensation claim.” On February 4, 2003, the trial court entered the judgment as a matter of law on the ease action summary sheet, stating:

“After argument, the Court finds that [Phillips] failed to present any evidence that [he] claimed workers’ compensation benefits, sought to recover workers’ compensation benefits, or took steps to make a workers’ compensation claim. For this reason, the motion for [a judgment as a matter of law] in favor of [Sentinel] and against [Phillips] is granted.”

Phillips filed a motion for a new trial, which was denied by operation of law in accordance with Rule 59.1, Ala. R. Civ. P. Phillips appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7, Ala. Code 1975.

"When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying a JML. Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999) (citations omitted).

Section 25-5-11.1, Ala.Code 1975, provides that “[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter....” While § 25-5-11.1 refers to “action[sj” to recover workers’ compensation benefits, our Supreme Court has interpreted § 25-5-11.1 “as covering even the filing of a claim for workers’ compensation benefits.” Tyson Foods, Inc. v. McCollum, 881 So.2d 976, 982 (Ala.2003) (citing McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299 (Ala.1991)).

Phillips contends that “[m]ost ... decisions appear to accept proof of the employer’s awareness of a work-related injury in lieu of, i.e., as satisfactory proof of, the ‘filing of a workers’ compensation claim’ for purposes of establishing a prima facie case under § 25-5-11.1.” Phillips cites Dunn v. Comcast Corp., 781 So.2d 940 (Ala.2000), in support of this contention. In Dunn, the Court stated that in order to make out a prima facie case of retaliatory discharge, a plaintiff must show: “(1) an employment relationship; (2) an on-the-job injury; (3) notice to the employer of the on-the-job injury; and (4) subsequent termination of employment.” Dunn, 781 So.2d at 943.

However, in Alabama Power Co. v. Aldridge, 854 So.2d 554 (Ala.2002), our Supreme Court explicitly expounded on the elements of retaliatory discharge listed in Dunn, clarifying what was required for a plaintiff to make out a prima facie case:

“Implicit in our Dunn reasoning was the necessity for a causal link between the plaintiff’s filing of a workers’ compensation claim and his subsequent discharge. ... If the only showings required to establish a prima facie case were the four explicitly listed in Dunn and quoted by the trial court, there would be no ‘inference that the discharge was retaliatory’ and no need for the burden of proof to shift from the employee to the employer.”

Alabama Power Co. v. Aldridge, 854 So.2d at 562-63 (emphasis added). Because of this necessity to establish a causal link between the discharge and the workers’ compensation claim, the Court in Aldridge deemed it necessary to restate the elements of a prima facie case of retaliatory discharge:

“In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim.”

Aldridge, 854 So.2d at 563 (emphasis added).

Thus, despite Phillips’s claim to the contrary, knowledge of an on-the-job injury on the part of the employer is not sufficient proof of filing a workers’ compensation claim. It is clear from Aldridge that “§ 25-5-11.1 demands that there be specific knowledge of the plaintiffs claim for benefits on the part of the one who terminated the plaintiff, and that that knowledge be the sole motivating force behind the termination.” Tyson Foods, Inc. v. McCollum, 881 So.2d at 983 (first emphasis added; second emphasis in original; some emphasis omitted). Therefore, “[w]hile [the employee’s supervisor] may have had knowledge of [the employee’s] on-the-job injury, it is neither necessary nor prudent, on that basis alone, to impute to [the employee’s supervisor] knowledge of [the employee’s] filing of a workers’ compensation claim.” McCollum, 881 So.2d at 983; see also Coca-Cola Bottling Co. Consol, v. Hollander, 885 So.2d 125, 130 (Ala.2003) (plurality opinion) (“[Section] 25-5-11.1 requires that knowledge of the employee’s filing of a workers’ compensation claim be the sole motivating force behind the termination of employment. In order to establish a prima facie case, the plaintiff must demonstrate, by substantial evidence, a direct and distinct causal link between one having knowledge of the plaintiffs workers’ compensation claim and the termination.”).

Phillips contends that his “filing” of a claim may be implied from the facts that he was assigned light-duty work after his injury, that human resources manager Pamela Ray volunteered to answer any questions that Phillips might have about the workers’ compensation process, and that Ray told Phillips to make sure that he had his medical bills paid by the company. However, Sentinel voluntarily moved Phillips to a light-duty position after his injury, Phillips admitted that he did not ask Ray any questions about the workers’ compensation process, and the discussion about the doctor’s bill merely demonstrates what was already admitted: that Sentinel paid for Phillips’s medical expenses pertaining to the injury. This argument from implication avoids the simple fact that Phillips failed to testify or introduce documents indicating that he filed a workers’ compensation claim with Sentinel before his employment was terminated.

As a counter to this fact, Phillips argues that Alabama cases do not clearly detail what “filing” a workers’ compensation claim entails. However, at the least it is plain that “filing” a workers’ compensation claim involves the employee notifying the employer of his decision to exercise his right to claim workers’ compensation benefits. Moreover, it is evident from Al-dridge, other cases, and Code sections that “filing” is a distinct act of the employee, not something to be left to implication. “Section 25-5-11.1 was clearly designed to prohibit employers from terminating employees in retaliation for their decision to file a claim for worker’s compensation benefits.” McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d at 1301 (emphasis added). Indeed, if “filing” a claim were not a distinct act, there would have been no need for our Supreme Court to conclude, as it did in Smith v. Dunlop Tire Corp., 663 So.2d 914, 915 (Ala.1995), or for this court to conclude, as it did in Rothenberger v. Cast Products, Inc., 716 So.2d 1220 (Ala.Civ.App.1997), that “a ‘First Report of Injury’ [filed] with the employer, in accordance with the Alabama Workers’ Compensation Act” satisfies the requirement of “filfing] a workers’ compensation claim.” Rothenberger, 716 So.2d at 1221. See also § 25-5-8(g)(2), Ala.Code 1975 (providing for sanctions for the filing of a fraudulent claim for workers’ compensation benefits); § 13A-11-124, Ala.Code 1975 (to like effect).

Phillips implores us to look at the “spirit” of the workers’ compensation scheme and to remember that “we construe workers’ compensation statutes liberally in favor of the employee in order to achieve the beneficent purposes of the workers’ compensation laws,” Scott Bridge Co. v. Wright, 883 So.2d 1221, 1224 (Ala.2003). No amount of “liberal construction,” however, can get past a simple failure of presentation of proof for a prima facie case. The purpose of the retaliatory-discharge prohibition is to prevent termination from employment “solely” because an employee has filed a claim or action .for workers’ compensation benefits. See § 25-5-11.1, Ala.Code 1975. By definition, such a cause of action requires a plaintiff to demonstrate that his or her employment was terminated because of the claim, which means that a plaintiff must show that he or she invoked his or her right to the claim before termination. Phillips all but admits that he did not do this by asking us to infer it from general circumstances.

Beyond his own testimony and the circumstances surrounding his claim, Phillips repeatedly relies upon the existence of the Agreement as proof that’he met his prima facie burden. First, he argues that the trial court could have taken judicial notice that he filed his claim by considering the Agreement. “ ‘ “A court may take judicial notice of matters ’generally known to the court and not subject to reasonable dispute. This includes matters of record in its own proceedings.” ’ ” A.W.G. v. Jefferson County Dep’t of Human Res., 861 So.2d 400, 410 (Ala.Civ.App.2003) (Crawley, J., concurring specially) (quoting Y.M. v. Jefferson County Dep’t of Human Res., 890 So.2d 103, 113 (Ala.Civ.App.2003) (plurality opinion)). However, the Agreement merely establishes that Phillips had a claim for workers’ compensation benefits; it does not tell us whether or when he filed one. Moreover, “[wjhether to take judicial notice of a fact is in the discretion of the trial court.” Henry v. Butts, 591 So.2d 849, 852 (Ala.1991). Phillips in essence asks us to hold that the trial court abused its discretion by refusing to take judicial notice of an element of his burden of proof. There was no error in refusing to do so.

Phillips also maintains that Sentinel is judicially or collaterally estopped from arguing that he did not file a claim because it approved the Agreement that acknowledged that Phillips sustained a workplace injury and that Sentinel had paid all of his medical bills for said injury. “ ‘Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’ ” Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 67 n. 2 (Ala.2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 228 n. 8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)). Sentinel did not argue that Phillips did not sustain a workplace injury, that it did not pay his medical bills, or that it would not compensate him for the injury, which is what the Agreement stipulates; it argued that Phillips failed to demonstrate that he filed a workers’ compensation claim before his employment was terminated, which is a separate argument, and as such is not barred by judicial estoppel.

For collateral estoppel to apply: “(1) The issue must be identical to the one involved in the previous suit; (2) the issue must have been actually litigated in the prior action; and, (3) the resolution of the issue must have been necessary to the prior judgment.” Martin v. Reed, 480 So.2d 1180, 1182 (Ala.1985). Again, however, the Agreement does not settle the issues of whether or when Phillips filed his workers’ compensation claim. Thus, Sentinel did not relitigate the issues settled in the Agreement, and collateral estoppel consequently does not apply.

The Alabama Pattern Jury Instruction on retaliatory discharge states, in pertinent part:

“[T]he burden is upon the plaintiff to reasonably satisfy [the jury] from the evidence of each of the following:
“(1) that the plaintiff was an employee of the defendant at the time he was injured,
“(2) that the plaintiff claimed Workers’ Compensation benefits (or sought to recover Workers’ Compensation benefits) before he/she was terminated,
“(3) that the plaintiff was terminated from his/her work by the defendant.”

2 Alabama Pattern Jury Instructions— Civil § 41.06 (2d ed. 2004 Supp.) (emphasis added). The trial court concluded that Phillips did not produce substantial evidence of the second requirement, and, thus, it granted Sentinel’s motion for a judgment as a matter of law. We find no error in that decision based on the record or on the law. The trial court’s judgment is therefore affirmed.

The appellant’s request for the award of an attorney fee on appeal is denied.

AFFIRMED.

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


text:
    Ex parte Antonio PHILLIPS. (In re Antonio Phillips v. Sentinel Consumer Products, Inc.).
    1040526.
    Supreme Court of Alabama.
    June 9, 2006.
    Charles G. Spradling, Jr., Alabama Legal Services, P.C., Anniston, for petitioner.
    James N. Nolan of Walston, Ells, Anderson & Bains, LLP, Birmingham; and Barry Y. Freeman and Lynda L. Ko-vach of Duvin, Cahn & Hutton, Cleveland, Ohio, for respondent.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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

      . This case was originally assigned to another Justice on this Court. It was reassigned to Justice Lyons on May 10, 2006.


author: YATES, Presiding Judge. CRAWLEY, Judge,

text:
    NHC HEALTHCARE v. Ellen JONES.
    2030434.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2004.
    Certiorari Denied June 9, 2006 Alabama Supreme Court 1040409.
    Joseph H. Driver and Thomas S. Thornton III of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Joel R. Hamner of Wolfe, Jones & Boswell, Huntsville, for appellee.
   YATES, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870 (Ala.1989); R.L. Carnes Logging Contractors, Inc. v. Whitsett, 844 So.2d 1248 (Ala.Civ.App.2002); Michelin North America, Inc. v. Hamby, 722 So.2d 770 (Ala.Civ.App.1998); Taylor v. Mobile Pulley & Mach. Works, 714 So.2d 300 (Ala.Civ.App.1997); Burden v. Huckaba, 708 So.2d 199 (Ala.Civ.App.1997); Mutual Sav. Life Ins. Co. v. Hogue, 693 So.2d 530 (Ala.Civ.App.1997); Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995); U.S. Steel, A Div. of USX Corp. v. Nelson, 634 So.2d 134 (Ala.Civ.App.1993); and Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993).

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

I concur in the no-opinion affirmance because this court is bound by the ruling of our Supreme Court in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996).


text:
    J. Ryan PRESTWOOD, Paula Prestwood, John Pittari, Kathleen Pittari, Rachel McGhee, Michael Robinson, and Patricia Robinson v. Rae T. WEISSINGER and Charles Weissinger.
    2040093.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2005.
    Rehearing Denied March 10, 2006.
    Certiorari Denied June 9, 2006 Alabama Supreme Court 1050851.

      Charles E. Vercelli, Jr., of Vercelli & Associates, P.C., Montgomery, for appellants.
    Russell C. Balch and Katherine M. Klos of Akridge & Balch, P.C., Auburn, for appellees.
   MURDOCK, Judge.

J. Ryan Prestwood, Paula Prestwood, John Pittari, Kathleen Pittari, Rachel McGhee, Michael Robinson, and Patricia Robinson, all of whom are residents of the Hickory Woods Estates subdivision located in the City of Auburn (collectively, “the plaintiffs”), appeal from the Lee Circuit Court’s entry of a summary judgment in favor of the defendants Rae T. Weissinger and Charles Weissinger. We affirm.

John Williams and Beth Williams owned certain real property in the City of Auburn that they intended to develop into a single-family subdivision to be named Hickory Woods Estates. On February 23, 1987, the Williamses gave a mortgage on that property to Farmers National Bank. On December 11, 1987, the Williamses gave another mortgage on the property to Farmers National Bank.

In December 1987, the Planning Commission of the City of Auburn (“the Planning Commission”) approved a plat for Phase I of the Hickory Woods Estates subdivision, which consisted of lots for 54 single-family residences. The plat, which was recorded on December 23, 1987, contained the following notation: “Pareel-A, Parcel-B, buffer yards, drainage ways, sanitary sewer easements, drainage easements, utility easements and floodways are designated as open space and shall be accessible to all fee simple lots in this subdivision and shall be maintained by the owner of the real property as shown on this plat.” (Referred to hereinafter as “the Notation.”) Also recorded was a “Declaration of Covenants, Conditions and Restrictions of Hickory Woods Estates,” which does not specifically refer to Parcel A, Parcel B, or any common areas or open spaces within the subdivision.

In 1988, John Williams had Parcel A replatted to include seven new lots. However, he neither recorded this new plat nor began developing any of the new lots on Parcel A. Thereafter, John Williams committed suicide and Farmers National Bank foreclosed on its mortgage. On June 15, 1989, Farmers National Bank purchased the property, including Parcel A, at its foreclosure sale.

On February 12, 1999, Rae Weissinger purchased Parcel A from Farmers National Bank.' In June 2000, she submitted an application to the Planning Commission for approval of the development of seven lots on Parcel A. After the Planning Commission denied her application, she resubmitted her application, which the Planning Commission again denied. Thereafter, she petitioned the Lee Circuit Court for a writ of mandamus directing the Planning Commission to approve her application to develop Parcel A. The court granted her petition and issued the requested writ. None of the plaintiffs in the present case was a party to that proceeding. In December 2003, preliminary site work began on Parcel A for its development according to the approved plat.

On December 17, 2003, the plaintiffs filed this action, naming as defendants Rae T. Weissinger and Charles Weissinger and seeking an injunction against the development of Parcel A and a declaration that the Notation constitutes a covenant running with the land. In an amended complaint, the plaintiffs expanded the relief sought to include an alternative request that the court declare that the Notation created an easement in favor of the plaintiffs. On the same day that the plaintiffs filed their complaint, the circuit court issued a preliminary injunction prohibiting the Weissingers or anyone associated with them from further developing Parcel A until the resolution of the litigation.

In a motion to dismiss, the Weissingers argued that all of the individuals residing in Hickory Woods Estates were necessary parties under Rule 19, Ala. R. Civ. P., because all of those residents shared an interest in the resolution of the litigation. To avoid being subjected to multiple lawsuits over the same issue, the Weissingers argued, all of the residents should be made parties to the litigation. The court subsequently ordered that all of the residents be made parties to the action, aligning them as plaintiffs.

On May 28, 2004, after the parties had engaged in discovery, the Weissingers moved the court to enter a summary judgment in their favor. They argued, among other things, that Farmers National Bank’s June 1989 foreclosure of its mortgage extinguished any rights that may have vested in the plaintiffs by virtue of the Notation.

On July 27, 2004, the trial court granted the Weissingers’ motion and entered a summary judgment in their favor. In its summary-judgment order, the court stated:

“There are several issues before the Court as to the effect and validity of the [Notation] on the plat. In the opinion of the Court, the dispositive issue is whether the mortgage foreclosure extinguished [any] rights that may have been created by the [Notation].
“The Court finds that the foreclosure effectively extinguished any rights of subdivision lot owners in interest created by the [Notation] on the subdivision plat.”

The plaintiffs appealed to the Supreme Court of Alabama; that Court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

The plaintiffs contend that the trial court erred when it held that Farmers National Bank’s foreclosure of its mortgage on the property on which the Hickory Hills Estates subdivision was developed extinguished their rights in Parcel A because, they say, the Notation constitutes either (1) a public dedication of that parcel or (2) a restrictive covenant that runs with the land. They support these arguments by citing cases and statutes that, according to them, demonstrate that the Notation on the plat, in conjunction with its recording, met all of the requisites necessary to act as a dedication of Parcel A to the public or created a restrictive covenant that prevents the Weissingers from developing Parcel A.

The Weissingers respond by arguing that, regardless of the nature of any purported conveyance of an interest in Parcel A, whether it be a dedication, a restrictive covenant, or an easement, the conveyance was made subject to Farmers National Bank’s mortgage, and, upon foreclosure of the mortgage, was cut off. Thus, according to the Weissingers, the plaintiffs’ analysis with regard to the nature of the alleged conveyance “is wholly irrelevant to the dispositive issue before this Court,” i.e., whether the plaintiffs’ interest in Parcel A, regardless of its nature, was eliminated by the foreclosure of the mortgage.

The Weissingers argue, and the plaintiffs do not dispute, that any inter- . est that the plaintiffs may have had in Parcel A arose subsequent to Farmers National Bank’s mortgage because the plat on which the Notation was included was not recorded until after the mortgage was recorded. Arguing that the plaintiffs’ purported interest in Parcel A arose subsequent to Farmers National Bank’s mortgage resulted in the elimination of the plaintiffs’ interest at foreclosure, the Weissingers quote the following passage from Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.2d 138, 144 (Ala.1990): “If foreclosure of a valid mortgage is properly conducted, all interests arising after the time the senior mortgage was created and all subordinate interests will be cut off unless the junior lienors redeem during the specified time period provided by statute.”

We agree with the Weissingers that Bailey Mortgage Co. provides the general rule of law in Alabama with regard to interests in a particular parcel of land that arise after the owner of the land has mortgaged it. Furthermore, we note that the appellate courts of this state have applied this general rule specifically in the context of easements that arise and dedications that occur subsequent to the granting of a mortgage. See, e.g., Alabama Historical Comm’n v. City of Birmingham, 769 So.2d 317, 320 (Ala.Civ.App.2000) (“In Alabama, the general rule is that the foreclosure of a mortgage terminates an easement that is recorded after the mortgage, subject only to the junior easement holder’s right to redeem under § 6-5-248, Ala.Code 1975.”); City of Birmingham v. Alabama Home Building & Loan Ass’n, 231 Ala. 558, 561, 165 So. 817, 818 (1936) (noting that a “mortgagor cannot by grant dedicate the mortgaged property to public use as against the mortgagee, thus impairing the security for the mortgage debt”). We have no reservations about applying this general rule to cover the Notation on the December 23, 1987, plat at issue here.

The trial court found, in keeping with the general rule discussed above, that whatever interest the plaintiffs had in Parcel A was eliminated by the foreclosure of the mortgage. Thus, it was incumbent on the plaintiffs to demonstrate the inapplicability of the general rule to this case, with citations to legal authority as required by Rule 28(a)(10), Ala. R.App. P. Instead of making such a demonstration, however, the plaintiffs focus their legal argument, including their citations of authority, on the exact nature of their purported interest in Parcel A, failing to rebut the actual basis for the trial court’s judgment that any interest that the plaintiffs had in Parcel A, regardless of its nature, was terminated by the foreclosure. As a result, their arguments are unavailing.

The plaintiffs also contend that to allow the Weissingers to develop Parcel A would violate public policy. They argue that the logical extreme of the trial court’s ruling is that the entire plat is invalid, in spite of the fact that Farmers National Bank never treated the plat as invalid. They assert that the trial court’s ruling results in “a host of innocent purchasers for value ... who relied upon a perfectly valid [pjlat filed of record in the [pjrobate [cjourt, now hav[ing] their rights cut off.”

The plaintiffs’ argument ignores the principle underlying the general rule that after-acquired interests are subject to the rights of the holder of a properly recorded, valid mortgage. Those who acquire an interest in real property are put on constructive notice by our system of recordation of previously filed interests in the same property. See Haines v. Tonning, 579 So.2d 1308, 1310 (Ala.1991) (holding that the proper recording of an instrument relating to an interest in real property constitutes constructive notice “to all the world” of the contents of the instrument). Accordingly, the plaintiffs were on constructive notice of the fact that the mortgagee in this case took an interest in the property prior to, and therefore superior to, any restriction created by the plat in question.

In addition, the plaintiffs do not support their public-policy contention with any legal authority. For this reason, we will not further address their argument. See Rule 28(a)(10), Ala. R.App. P.; City of Birmingham, v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998).

Similarly, in alluding to their deeds, the plaintiffs suggest that if the Weissingers prevail, the Weissingers and Farmers National Bank will have perpetrated a “legal fraud on the plaintiffs because they did not convey that which they said they were conveying; i.e. the lots subject to the restrictions and other covenants of record.” The plaintiffs made no such claims against the Weissingers or the bank in the trial court, and therefore such claims are not properly before us on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.

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

BRYAN, J., concurs in the result, without writing.

      . In fact, this court has previously relied on Bailey Mortgage Co. for the proposition encapsulated in the quote set forth above. See Cameron v. Meadowbrook Group, 730 So.2d 234, 235 (Ala.Civ.App.1999).
      Separately, we note, but find no merit in, the plaintiffs' argument that the Weissingers’ reliance on Bailey Mortgage Co. is misplaced. Put simply, that the facts in that case are distinguishable from those in the present case does not lead us to conclude that the general proposition of law recited therein (that the foreclosure of a senior mortgage cuts off all junior interests in the mortgaged property) has no application here.

      . The only case to which the plaintiffs cite that involved the foreclosure of a mortgage, Gaston v. Ames, 514 So.2d 877 (Ala.1987), is distinguishable from the present case for two reasons. First, in Gaston, the mortgagee joined in the execution and recordation of the plat at issue, such that it, along with the mortgagor, dedicated the roads at issue to the public. Gaston, 514 So.2d at 878. There is no evidence in the present case indicating that Farmers National Bank joined in or otherwise assented to the recordation of the Hickory Woods Estates plat at issue. Second, unlike the present case, there was no issue in Gaston, before either the trial court or the Supreme Court, regarding the effect of the foreclosure of the mortgage on the dedication. Id. Thus, Gaston does not provide an appropriate basis on which we could find that the trial court in the present case erred when it applied the general rule that the foreclosure of a mortgage extinguishes junior interests in the land.

      . Concomitantly, we recognize the existence of countervailing policy concerns that support the trial court’s judgment. For example, a rule allowing a mortgagor to transfer interests in property that it previously has mortgaged could deprive the mortgagee of the security it required from the mortgagor, and would allow subsequent transferees of the property from the mortgagor to take an interest in the property that exceeds that which the mortgagor retained. Such a rule would jeopardize the value of mortgages to lenders who, in making loans, rely on stability in the nature and extent of the property interests in which they receive a mortgage as security for their borrowers' repayment obligations.

      . The plaintiffs do not argue on appeal that the Weissingers are estopped to question the efficacy of the plat.


author: THOMPSON, Judge.

text:
    C.H. v. STATE of Alabama.
    2040683.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2005.
    Rehearing Denied Jan. 27, 2006.
    Certiorari Denied June 9, 2006 Alabama Supreme Court 1050605.

      Tobie J. Smith, Legal Aid Society of Birmingham, Birmingham, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Judge.

On January 19, 2005, Jo Hollins, the attendance officer for the Birmingham City Board of Education, filed in the Jefferson Juvenile Court a verified complaint charging that C.H., a 14-year-old boy in the eighth grade, was a child in need of supervision (“CHINS”) because he had been habitually truant, accumulating 10 absences and 2 tardies from school without providing a legitimate excuse. C.H. entered a plea of “not true” and the juvenile court set the case for a final hearing. After receiving ore tenus evidence, the juvenile court entered an order finding the allegations in the complaint to be “true,” adjudicating C.H. a CHINS, and placing C.H. on probation. C.H. timely appealed.

The limited testimony presented at the final hearing consisted of the testimony of Angela Lee, an attendance officer for the Birmingham' city school system, and D.H., C.H.’s mother. It is worthy of note that D.H. consistently asserted her Fifth Amendment right against self-incrimination during her short time on the witness stand.

The evidence presented at the hearing established that C.H. had been late to school on 2 occasions and absent from school on 10 occasions from September 2004 to December 2004. A computer printout of C.H.’s attendance record admitted into evidence at the hearing revealed that the tardies and absences on C.H.’s school record at the time the complaint was filed were all unexcused. C.H. never submitted an excuse to the school for his absences; no written excuses are contained in his school records.

Lee testified that the attendance policy adopted by the Birmingham city school system provided for the prosecution of a child over 12 years of age. Lee explained that if the child were under the age of 12, the Birmingham city school system’s policy is to hold the parent responsible.

Lee testified that the attendance of students in Birmingham city schools is monitored with the help of an “automated school map system.” According to Lee, this system allows homeroom teachers to track a student’s daily attendance using a computer program. Lee testified that the computer automatically marks the child present and that the teacher must manually mark the child as absent. Lee testified that if a student is tardy, the student must report to the school’s office, and the absence is changed to reflect a tardy.

Lee testified that another attendance officer met with C.H. regarding his 'absences but that there was no improvement. According to Lee, C.H. was referred to an “Early Warning” program on November 18, 2004, after receiving six unexcused absences and two tardies. Lee testified that C.H. and D.H. were notified by mail and by telephone of C.H.’s referral to the “Early Warning” program but that neither C.H. nor D.H. attended the program. C.H.’s attendance record reveals that he was absent from school four more times without excuse after he and D.H. failed to attend the “Early Warning” program.

‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987).... Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica [Commercial Fin. Corp. v. Am-South Bank], 608 So.2d [375] at 378 [ (Ala.1992) ]. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[Wjhere the facts before the trial court are essentially undisputed arid the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

On appeal, C.H. contends that the State failed to produce sufficient evidence indicating that D.H., as C.H.’s parent, could not control the child, and, therefore, failed to produce sufficient evidence under § 16-28-14, Ala.Code 1975, indicating that C.H. was habitually truant. Section 16-28-14, Ala.Code 1975, provides, in its entirety, as follows: C.H. maintains on appeal that under § 16-28-14 the State had to prove that C.H.’s parent, D.H., could not control him before he could be found to be a CHINS on the basis of habitual truancy. According to C.H., § 16-28-14 places the legal responsibility for a child’s failure to attend school on his or her parent. As best we are able to determine, C.H. asserts that the State improperly prosecuted him instead of D.H. for his failure to attend school.

“In case any child becomes an habitual truant, or because of irregular attendance or misconduct has become a menace to the best interest of the ’ school which he is attending or should attend, and the parent, guardian or other person files a written statement in court as provided in Section 16-28-13, stating that he is unable to control such child, the attendance officer must file a complaint before the judge of the juvenile court of the county, alleging the facts, whereupon such child must be proceeded against in the. juvenile court for the purpose of ascertaining whether such child is a dependent, neglected or delinquent child.”

C.H. correctly notes that there is no Alabama caselaw addressing this issue, but, nevertheless, he maintains that the plain language found in § 16-28-14 mandates reversal under the circumstances of this case. Relating to the rules of statutory construction, this court, in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), stated:

“In construing a statute, this court looks to the plain meaning of the words used by the Legislature. Our supreme court has said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)(quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).
“ ‘It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.’
“DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998).”

W.L.S., 810 So.2d at 779.

Under the plain language of § 16-28-14, an attendance officer is required to file a complaint in the juvenile court when the child becomes an habitual truant and the parent files a written statement in open court saying that they are unable to control the child. Contrary to C.H.’s contention on appeal, § 16-28-14 merely places an affirmative duty on an attendance officer to file a complaint when the circumstances cited above are met. The State is not required under § 16-28-14 to present evidence of a parent’s inability to control his or her child before the State may proceed with an action in the juvenile court to find a child to be a CHINS on the basis of habitual truancy as defined in § 12-15-1(4)a., Ala.Code 1975. Therefore, C.H. failed to demonstrate error as to this issue.

C.H. further argues on appeal that, regardless of the application of § 16-28-14 to the facts of this case, the State failed to establish that he was “habitually truant” because, he argues, the State presented insufficient evidence indicating that he refused to attend school and acted against the will of his parent, D.H. Section 12-15-1(4), Ala.Code 1975, defines a “child in need of supervision” as, among other things, one who “[b]eing subject to compulsory school attendance, is habitually truant from school.” § 12-15-l(4)a.

“At a hearing on a CHINS petition, the State must first establish, by ‘proof beyond a reasonable doubt, based upon competent, material, and relevant evidence, that a child committed the acts by reason of which the child is alleged to be ... in need of supervision.’ § 12-15-65(e).... If the juvenile court determines that the child committed the acts alleged, the juvenile court ‘may proceed immediately to hear evidence as to whether the child is in need of care or rehabilitation.’ Id.
“Once the predicate act or ‘offense’ has been established by proof beyond a reasonable doubt .... [t]he State must establish, by ‘clear and convincing evidence, competent, material, and relevant in nature, that the child is ... in need of care or rehabilitation as a ... child in need of supervision.’ § 12-15-65(f), Ala. Code 1975....”

S.H. v. State, 868 So.2d 1110, 1112-13 (Ala.Civ.App.2003)(emphasis omitted).

As discussed above, we do not agree with C.H.’s contention on appeal that the State was required to present evidence indicating that C.H. acted against the will of D.H. or, stated another way, that D.H. could not control C.H. before the juvenile court could adjudicate C.H. to be a CHINS because of his truancy. The undisputed evidence presented by the State in this case established that C.H. had been absent from school on 10 occasions and tardy on 2 occasions without providing the school with an excuse. Therefore, we cannot say that the State failed to present evidence from which the juvenile court could determine C.H. to be habitually truant.

AFFIRMED.

CRAWLEY, P.J., and PITTMAN, J., concur.

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . The record indicates that before the final hearing began, the juvenile court apprised D.H. of her Fifth Amendment rights and appointed an attorney to represent her.

      . There is no indication in the record that a complaint was ever filed by the State against D.H. based on C.H.’s lack of attendance at school.