author: BOLIN, Justice.

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. Larry WILLIAMS and Melissa Williams.
    1030665.
    Supreme Court of Alabama.
    Aug. 19, 2005.
    Rehearing Denied Nov. 10, 2005.

      Michael B. Beers and Constance T. Buckalew of Beers, Anderson, Jackson, Patty <& Van Heest, P.C., Montgomery; and Charles P. Gaines of Gaines, Gaines & Rasco, P.C., Talladega, for appellant.
    Betty C. Love of Love, Love & Love, P.C., Talladega, for appellees.
   BOLIN, Justice.

Larry Williams and his wife Melissa Williams sued State Farm Fire and Casualty Company (“State Farm”) and its employees, Brandon LaBresh, Tim Ryan, and Bill Lovell, on July 10, 2001, alleging breach of an insurance contract, bad-faith refusal to pay an insurance claim, negligent handling of claims, and negligent training and supervision. The Williamses sought both compensatory and punitive damages, as well as damages for mental anguish.

State Farm answered the complaint on August 8, 2001, denying the allegations in the complaint, and it moved the trial court to dismiss the counts alleging negligent handling of claims and negligent training and supervision. The defendant employees LaBresh, Ryan, and Lovell also moved the trial court on August 8, 2001, to dismiss the complaint against them in its entirety. Following a hearing, the trial court, on October 10, 2001, entered an order dismissing the count alleging negligent handling of claims as to all of the defendants; dismissing the counts alleging breach of contract and bad faith as to the defendant employees LaBresh, Ryan, and Lovell; and deferring ruling on the count alleging negligent supervision and training as to all of the defendants.

On September 30, 2002, State Farm moved for a summary judgment as to all of the remaining claims against it. On February 4, 2003, the Williamses filed a response in opposition to State Farm’s motion for a summary judgment. The Williamses amended their complaint on April 2, 2003, to more fully allege their breach-of-contract claim.

Following a hearing, the trial court, on July 25, 2003, entered a summary judgment in favor of State Farm, LaBresh, Ryan, and Lovell on all of the remaining counts of the complaint except the breach-of-contract claim asserted against State Farm.

■ The case proceeded to trial on August 27, 2003, on the Williamses’ breach-of-contract claim against State Farm. At the close of the Williamses’ case and again at the close of all of the evidence, State Farm moved the court for a preverdict judgment as a matter of law (“JML”). The motions were denied and the case was presented to the jury. The jury returned a verdict in favor of the Williamses and awarded them compensatory damages on the breach-of-contract claim in the amount of $72,000 and also awarded the Williamses damages for mental anguish in the amount of $10,000, for a total award of $82,000. The trial court assessed interest in the amount of $12,600 on the jury’s award of damages on the breach-of-contract claim and, on September 9, 2003, entered a final judgment in favor of the Williamses for $94,600.

State Farm, on September 26, 2003, moved the trial court for a postverdict JML, or, in the alternative, to alter, amend, or vacate the judgment or to remit the compensatory-damages award, arguing that the award on the breach-of-contract claim was greater than the limits contractually agreed to by the parties under the terms of the policy and, further, that the evidence presented was insufficient to support the jury’s award of damages for the Williamses’ mental-anguish claim.

On December 29, 2003, the trial court entered an amended order remitting the damages award for the breach-of-contract claim to the policy limit of $49,047, and reassessing interest on that award in the amount of $8,583.23. The trial court left intact the jury’s award of $10,000 on the mental-anguish claim. The trial court entered a judgment in favor of the Williamses for $67,630.23. State Farm appeals.

The Williamses’ house is a one-story, wood-frame house which consists of six rooms and one bathroom. The foundation of the house consists of concrete block walls surrounding a crawl space. The house was insured by a policy of insurance issued by State Farm. The insurance policy in “Section X — -Losses Insured” provides that “[w]e insure for accidental direct physical loss to the property described in COVERAGE A [Dwelling], except as provided in SECTION I — LOSSES NOT INSURED.” (Capitalization in original.) The insurance policy provides in “Section I — Losses Not Insured” the following:

“1. We do not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through n. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
“a. collapse, except as specifically provided in SECTION I — ADDITIONAL COVERAGES, Collapse;
“i. mold, fungus, or wet or dry rot;
“m. birds, vermin, rodents, insects .... ”

(Capitalization in original.)

The insurance policy provides in “Section I — Additional Coverages” the following:

“11. Collapse. We insure only for direct physical loss to covered property involving the sudden, entire collapse of a building or any part of the building.
“Collapse means actually fallen down or fallen into pieces. It does not include settling, cracking, shrinking, bulging, expansion, sagging or bowing.
“The collapse must be directly and immediately caused only by one or more of the following:
“b. hidden decay of a supporting or weight-bearing structural member of the building;
“c. hidden insect or vermin damage to a structural member of the building. ...”

The insurance policy further provided that State Farm would pay the cost to “repair or replace with similar construction ... the damaged part of the property covered.”

The Williamses contend that on September 28, 2000, two small explosions occurred inside their house. Larry Williams testified that he was asleep in the master bedroom when he heard a “big bang.” Larry went to investigate the sound and found his wife Melissa, and his son’s girlfriend, Chrystal Trevino, “screaming and hollering.” Larry stated that he asked what had happened and Trevino responded that she had turned on the light switch and an explosion had occurred. Larry testified that he then turned on the light switch and a loud “combustion” type explosion occurred. Larry stated that reddish and blue flames were visible from the base of the floor and walls at the moment of the explosion. The main floor beam that ran through the center of the Williamses’ kitchen had collapsed, which caused the kitchen floor to collapse. The City of Tal-ladega Fire Department responded to the scene, but no fire was detected. However, a gas leak was found under the kitchen floor and Alagasco was called to the scene to disconnect the gas supply to the house. The electricity to the house was also disconnected.

State Farm hired two experts to investigate the cause of the damage to the Williamses’ house. Jeff Crain, a certified fire and explosion investigator employed by Pyrtech, Inc., inspected the Williamses’ house on October 4, 2000. He found no evidence of any fire damage within or beneath the flooring system of the house and no evidence of a flammable gas or vapor explosion. Crain concluded that the collapse of the flooring system was caused by the failure of an extremely rotted main support beam underneath the house.

Joel D. Wehrman, a senior engineer with Jade Engineering & Inspection, Inc., inspected the Williamses’ house on October 11, 2000, to determine what caused the flooring system to collapse and also to provide recommendations on how to proceed with repairs. Wehrman concluded that no fire or explosion had occurred; rather, he determined that the flooring system failed because of long-term wood rot of the flooring support joists caused by an infestation of termites and a fungus. Wehrman stated that when the flooring system finally collapsed, it probably made a very loud noise and generated a dust cloud, causing the Williamses to believe an explosion had occurred. Wehrman concluded that it would not be feasible to repair the rot-related damage the house sustained. He determined that half of the wood-framed floor in the house would have to be replaced in its entirety and that the rotted floor support beams and joists would have to be replaced.

The collapse of the kitchen floor rendered the Williamses’ house uninhabitable, and they moved into a local motel room. During the period the Williamses resided in the motel room, State Farm paid them benefits under the “Loss of Use” provision of their homeowners’ insurance policy. However, on December 6, 2000, State Farm notified the Williamses by letter that there was no coverage for their loss under the insurance policy, and it discontinued the “Loss of Use” benefits. The Williamses then sued State Farm and its employees, LaBresh, Ryan, and Lovell.

State Farm argues on appeal that the trial court erred in denying its preverdict JML because, it says, the Williamses failed to prove their damages, which is an essential element of their breach-of-contract claim. The standard of review for a ruling on a motion for a JML is as follows:

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). 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. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So .2d 870, 871 (Ala.1989). 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. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999). In order to prevail on a breach-of-contract claim, a plaintiff must establish: (1) the existence of a valid contract binding the parties, (2) his own performance under the contract, (3) the defendant’s nonperformance under the contract, and (4) resulting damages. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999).

On direct examination, counsel for the Williamses attempted to elicit from Larry his estimation as to what it would cost to replace the house. Counsel for the Williamses asked Larry if he knew the reasonable value of his house before the “explosion” on September 28, 2000. State Farm objected to the question stating that the difference between the value of the house before the floor collapsed and the cost to replace “[was] not proper damages [in] this case.” The trial court permitted Larry to testify as to the value of his house before the “explosion.” Larry valued the house at $49,000 before the “explosion” and stated that it was worthless after the “explosion.” No additional evidence was presented relative to the costs to repair the house.

State Farm then moved the trial court for a preverdict JML at the close of the Williamses’ case, arguing, among other things, that the Williamses had failed to submit any evidence as to the proper measure of damages in the case. Counsel for State Farm stated:

“The policy clearly calls for the repair or the replacement of the damaged property. There is no evidence before Your Honor or this jury that this was a total loss or that this house was totally destroyed to which you can even get into possible before and after value in the opinion of the homeowner as to the loss.”

The following colloquy then occurred:

“THE COURT: How about the issue concerning damages he just brought up?
“COUNSEL FOR THE WILLIAMSES: Your Honor, we proved what their own expert — it is in because all of the exhibits are in. All of the exhibits are in, which have been premarked. Their own expert said that this house could not be repaired....
“COUNSEL FOR STATE FARM: That is not what [the Jade Engineering report] says.
“COUNSEL FOR THE WILLIAMSES: The plaintiffs testified the house could not be repaired. The Jade Engineering report shows that the house couldn’t be repaired and the proper measure of damages. Had they chosen to come in and attempt to repair this, they would have had the option to repair or replace.
“COUNSEL FOR STATE FARM: The damaged property.
“COUNSEL FOR THE WILLIAMSES: They chose to back off and not do that. The Jade Engineering report — this was their engineer. We premarked all these exhibits. They were all admitted this morning. Your Honor asked us to do that. The Jade Engineering report shows this house ■ could not be effectively repaired.
“COUNSEL FOR STATE FARM: ... [The Jade Engineering report] does not say the house cannot be repaired.
“COUNSEL FOR STATE FARM: With regard to the recommendation for repairs that we requested that Mr. Wehrman look into, Mr. Wehrman simply states unfortunately, T do not think it will be feasible to repair the extensive rot related damage sustained to the Williams’s house.’ There is no question they would have to replace the beam and everything, but it doesn’t say the whole house is not' — needs to be replaced. And that is a misstatement to the Court....
“COUNSEL FOR THE WILLIAMSES: Could His Honor simply look at this? This is their own expert, Your Honor. That is in because they premarked it, and we offered all the exhibits. This is their own engineering expert.
“THE COURT: He didn’t say it was completely [uninhabitable. The parts of it he inspected' — -
“COUNSEL FOR THE WILLIAMSES: He said it wasn’t feasible to repair it.
“THE COURT: The extensive rot-related damage. He didn’t say it about the whole house. The question I have is did you get the testimony in from your client relative to the house couldn’t be repaired?
“COUNSEL FOR THE WILLIAMSES: Yes, sir, Your Honor. Mr. Williams testified when we went into the agricultural [sic] report that was done and I asked him if based on all of the evidence that he was given from Mr. LaBresh, from all the investigations done, if that house could be lived in, if it was capable — if they could move into that house and live [in] it, and he said that no, he could not. That house was uninhabitable.
“COUNSEL FOR STATE FARM: That was in its present condition, not in its repaired condition. There is no testimony as to how it would be replaced, what it would cost to do that. Their only evidence of damages is assuming there was a total loss, and there is no evidence there is [a] total loss.
“COUNSEL FOR THE WILLIAMSES: Your Honor, their expert says it cannot be feasible to repair. You couldn’t live in a house with no kitchen floor. If it can’t be repaired, it is uninhabitable as it is. Their expert says it is not feasible to repair.
“COUNSEL FOR STATE FARM: Just so we are clear. He is saying the damaged part cannot be repaired. It has got to be replaced. You lift the house up, you put in a new system, and you put the house down. That is what that report says.”
Following the exchange quoted above, the trial court permitted the Williamses to reopen their case-in-chief for the limited purpose of presenting evidence as to the costs to repair or replace the damaged portion of their house. The following exchange occurred:
“COUNSEL FOR THE WILLIAMSES: Mr. Williams, I’m going to ask you regarding the damage to your home from September 28, 2000, have you sought any information to find out what it would cost to repair or replace that damage to your home?
“LARRY WILLIAMS: Yes, I have.
“COUNSEL FOR THE WILLIAMSES: Could you tell the ladies and gentlemen of the jury in your opinion what it will cost to repair the property that was damaged on September 28, 2000?
“COUNSEL FOR STATE FARM: Excuse me, Mr. Williams. Judge, we would object because obviously his opinion is going to be based on hearsay information, and she has not laid the proper foundation for him to render this testimony. In fact, this man told us earlier he didn’t even own a saw. He is not qualified to render any opinion in regard to repairs of his home.
“COUNSEL FOR THE WILLIAMSES: Your Honor, he sought out information regarding the repair of his home.
“COUNSEL FOR STATE FARM: Judge, that would be hearsay because we don’t even know the information that he sought out or received. She has not laid the proper foundation.
“COUNSEL FOR THE WILLIAMSES: I will lay further foundation.
“THE COURT: Okay.
“COUNSEL FOR THE WILLIAMSES: Could you tell the jury, without telling them any contents of the conversations, who did you speak with regarding repair or replacement of your property?
“LARRY WILLIAMS: Davis Construction.
“COUNSEL FOR THE WILLIAMSES: Did Davis [Construction] come out to the house and look around?
“LARRY WILLIAMS: They did.
“COUNSEL FOR THE WILLIAMSES: Did you have a conversation with them regarding the damage to your home?
“LARRY WILLIAMS: Pretty much, yes.
“THE COURT: Who was it with specifically?
“LARRY WILLIAMS: It was [Mr. Davis’s] son.
“COUNSEL FOR THE WILLIAMSES: And from those conversations and from his investigation out at your home, did you come up with an opinion, a figure, regarding what it would cost to repair or replace your property that was damaged on September 28?
“COUNSEL FOR STATE FARM: Excuse me, Mr. Williams. Judge, I would object. The very foundation of her question is based on a conversation — -that is hearsay in its purest form. He is basing the opinion on hearsay.
“COUNSEL FOR THE WILLIAMSES: Your Honor, he has testified that he was there. They went to the home, that an investigation was done regarding what it would take to replace or repair it. From that, he has an opinion as to what the cost would be.
“COUNSEL FOR STATE FARM: Judge, the opinion is derived from what someone apparently told him. There has been no discussion whatsoever of Mr. Davis’s expertise. But secondly, it came from Mr. Davis. It is hearsay.
“THE COURT: He can give his opinion and his judgment as to what he believes the fair and reasonable cost of repairing or replacing the damage to his house is on that occasion.
“COUNSEL FOR THE WILLIAMSES: Do you have an estimate or an opinion or your best judgment as to what it would take as far as the cost to replace the property damage, September 28, 2000 — from that time frame in your best judgment, what it is going to take to repair that property?
“COUNSEL FOR STATE FARM: Once again, I will object because there is no foundation for him to give that opinion. If we are relying on what someone told him, that is hearsay. If you are trying to get it through him, him having some expertise, they haven’t proven or laid that foundation.
“THE COURT: I think there may be an exception to that general rule in being a homeowner.
“COUNSEL FOR STATE FARM: Judge, being a homeowner, you can prove the reasonable market value. There is no rule for replace or repair. Just the same he wouldn’t be qualified to say what it cost to fix his automobile.
“THE COURT: I am going to let him go ahead and give it at this time....
“COUNSEL FOR THE WILLIAMSES: In your best judgment, what will it cost to replace the property that was damaged September 28, 2000, to your home?
“LARRY WILLIAMS: Replace?
“COUNSEL FOR THE WILLIAMSES: To replace it.
“LARRY WILLIAMS: Around $79,000
“COUNSEL FOR THE WILLIAMSES: In your best judgment, what will it cost to repair the property that was damaged on September 28, 2000?
“LARRY WILLIAMS: I would say around $31,500 or $32,000.”

Larry testified on cross-examination that the testimony he gave regarding the estimated costs to repair his damaged property were based solely on what someone else had told him and that he did not possess the expertise to estimate the cost to repair his damaged property. We note the following exchange:

“COUNSEL FOR STATE FARM: The testimony you just gave us was based solely upon what someone else told you, wasn’t it?
“LARRY WILLIAMS: Close proximity. I mean, you know, it could be more.
“COUNSEL FOR STATE FARM: But that came from whoever you talked to, and those figures are exactly what they told you, isn’t it?
“LARRY WILLIAMS: I would say somewhere around the neighborhood of that, yes.
“COUNSEL FOR STATE FARM: You didn’t come up with those figures, in other words, independently on your own?
“LARRY WILLIAMS: I don’t have that expertise to do that.
“COUNSEL FOR STATE FARM: And so the information you just relayed to the jury came from another source, didn’t it?
“LARRY WILLIAMS: Yes.”

State Farm contends that the Williamses failed to carry their burden of proving the element of damages because the only evidence as to the proper measure of damages was presented after the trial court allowed the Williamses to reopen their case-in-chief and after State Farm had moved for a preverdict JML. As mentioned above, the insurance policy provides that the proper measure of damages in this case is the cost to repair or replace the damaged part of the dwelling. See Reliance Ins. Co. v. Substation Prods. Corp., 404 So.2d 598 (Ala.1981). Counsel for the Williamses elicited in their case-in-chief, and over the objection of State Farm, the cost of replacing the Williamses’ house by ascertaining from Larry the difference in the value of the house before the “explosion” and the value of the house after the “explosion.” The Williamses presented no evidence in their case-in-chief relating to the cost to repair the damaged portion of their house. Thus, when State Farm moved for its preverdict JML, the Williamses had failed to present any evidence as to the proper measure of damages in this case, i.e., the cost to repair or replace the damaged portion of their house. However, the trial court allowed the Williamses to reopen their case-in-chief for the limited purpose of presenting evidence relative to the cost of repairing the damaged portion of their house. We note that the decision to reopen a case for additional evidence lies within the sound discretion of the trial court. Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990). We find no error in the trial court’s allowing the Williamses to reopen their case-in-chief for the limited purpose of presenting additional evidence relative to the issue of damages.

We must next determine whether the evidence as to the issue of damages in this case was competent. State Farm argues that the trial court erred in overruling its hearsay objection to Larry’s testimony regarding the estimated costs to repair his damaged property. Rule 801, Ala. R. Evid., defines hearsay as “a statement, other than one made by the declarent while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Larry’s testimony regarding the cost of repairing his damaged house was clearly based on a conversation with someone else and on what someone else had told him. The testimony was offered for the truth of the matter asserted, i.e., to establish damages, an essential element of a breach-of-contract claim,, by proving the costs necessary to repair the Williamses’ damaged house. Therefore, Larry’s testimony as to damages constituted classic hearsay and was inadmissible. See Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837 (Ala.2004) (holding that wife and son’s testimony that deceased optometrist told them an agreement existed for the sale of his practice was hearsay); Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983) (holding that purchaser’s testimony establishing model year of a tractor in fraud action based on what manufacturer told purchaser would be inadmissible hearsay).

Citing Mississippi Valley Title Insurance Co. v. Malkove, 540 So.2d 674 (Ala.1988), the Williamses argue that Larry’s testimony regarding the estimated cost to repair'the house constituted opinion evidence from a lay person and, as the owner of the property, he was competent to give an opinion relative to the cost to repair the house. Malkove states that “ ‘[i]t is the rule in Alabama that any person, including a layman, is competent to testify as to his opinion concerning the value of land if he has had an opportunity for forming a correct opinion and testifies in substance that he has done so.’” 540 So.2d at 679 (quoting Calvin Reid Constr. Co. v. Coleman, 397 So.2d 145 (Ala.Civ.App.1981)). However, the facts of Mal-kove are easily distinguishable from the facts of this case. First, Larry was not testifying as to the market value of his house, rather he was testifying to the estimated cost of repairing the damaged portion of the house. Secondly, the Court in Malkove found the proponents of the opinion testimony regarding the value of the land to be experienced real-estate brokers familiar with the land in question. Larry, on the other hand, admitted that he did not have the training or expertise necessary to allow him to form an independent estimate of the costs necessary to repair his house.

Accordingly, we conclude that the Williamses failed to present substantial evidence of an essential element of their breach-of-contract claim — damages—and that the trial court erred in denying State Farm’s motion for a preverdict JML. Because we find that the Williamses failed to prove an essential element of their claim, we pretermit discussion of the remaining issues raised on appeal by State Farm. We reverse the trial court’s judgment and remand the case for the entry of a JML for State Farm.

REVERSED AND REMANDED WITH INSTRUCTIONS.

NABERS, C.J., and SEE, HARWOOD, and STUART, JJ., concur.

      . This case was originally assigned to another Justice; it was reassigned to Justice Bolin on January 17, 2005.

      . The record does not indicate that the defendant employees LaBresh, Ryan, and Lovell moved for a summary judgment. However, the trial court stated in its order that it considered matters outside the pleadings; thus the trial court apparently treated the defendant employees’ motion to dismiss as a summary-judgment motion. See Boles v. Blackstock, 484 So.2d 1077 (Ala.1986).

      . Nothing in the record indicates that the Williamses’ house was a total loss. In fact, the report prepared by Wehrman of Jade Engineering and relied on by the Williamses in support of their contention that the house cannot be repaired clearly indicates only that the damaged portion of the flooring system— not the entire house — cannot be repaired and must be replaced. See Padgett v. State Farm Fire & Cas. Co., 714 So.2d 302 (Ala.Civ.App.1997)(holding that "replacement cost” provision in a policy similar to the Williamses' policy required the insurer to pay only for the damaged portion of a roof and not for the replacement of the entire roof).


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    ALABAMA STATE BAR v. Derek Maurice QUINN.
    1030869.
    Supreme Court of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 21, 2005.

      James Anthony McLain, gen. counsel, and Robert E. Lusk, Jr., asst. gen. counsel, Alabama State Bar, Montgomery, for appellant.
    Vader A. Pennington, Mobile, for appel-lee.
   STUART, Justice.

The Alabama State Bar appeals the decision of the Board of Disciplinary Appeals of the Alabama State Bar reversing the order of the Disciplinary Commission of the Alabama State Bar disbarring Derek Maurice Quinn, a member of the Alabama State Bar. We reverse and remand.

Facts

Derek Maurice Quinn was admitted to the practice of law in the State of Alabama on September 28, 2001. The events that gave rise to the disciplinary action underlying this appeal occurred a few weeks shortly after he was admitted.

In the early morning hours of November 1, 2001, deputies with the Jefferson County Sheriffs Department stopped a vehicle that was being driven erratically. The driver attempted to elude the deputies and then turned into a driveway. The male driver and two female passengers jumped out of the vehicle and ran from the deputies. The driver was not apprehended, but the two female passengers were taken into custody. Because the female passengers were 14 years old and alcohol was found in the vehicle, the deputies took the minors into custody.

During an inventory search of the vehicle incident to its impoundment, the deputies found an eight-millimeter video camera. The deputies played the videotape, which depicted a Halloween party that had occurred earlier in the night on which the vehicle had been stopped and which showed several minors who appeared to be drunk and/or “high.” The videotape also showed an adult male, later identified as Quinn, smoking a marijuana “blunt” and handing it to the minors to smoke.

When the deputies attempted to contact the parents of the girls, one of the girls, F.F.T., identified Quinn as her father. When Quinn arrived at the police station, he identified himself as F.F.T.’s father, and he attempted to take her home. The deputies recognized Quinn as the adult male in the videotape who was smoking the marijuana “blunt” and passing it to the minors to smoke.

Quinn was arrested and charged with contributing to the delinquency of a minor, F.F.T. The charging instrument alleged that on October 31, 2001, Quinn, did

“willingly aid, encourage or cause a child [F.F.T.] to become or remain delinquent, to induce said child to perform an act which would tend to cause [said child] to become or remain delinquent, to-wit: said Derek Maurice Quinn, smoked marijuana with said child, then handed to child to smoke and other children present to smoke also, in violation of [§ ] 12-15-13, Ala.Code [1975].”

On April 8, 2002, Quinn appeared with counsel in the Jefferson County Family Court and pleaded guilty to contributing to the delinquency of a minor. The court adjudged Quinn guilty and sentenced him to serve 90 days’ imprisonment in the county jail. The court then ordered that the sentence be suspended and that Quinn serve six months on probation.

On August 20, 2002, the General Counsel of the Alabama State Bar petitioned the Disciplinary Commission pursuant to Rule 22, Ala. R. Disc. P., to suspend or disbar Quinn on the basis that he had been convicted of a “serious crime.” The Disciplinary Commission set a date for the hearing on the petition before the Disciplinary Board of the State Bar. On the date set for the hearing,. Quinn, by and through counsel, Thomas B. Hanes, filed by facsimile transmission a response to the petition in which he averred that the petition should be dismissed because, he said, it did not allege that he had been convicted of a “serious crime.” He further denied he had been convicted of a “serious crime” and requested a hearing to determine whether his conviction involved a serious crime. On that same date, the State Bar filed an amended petition alleging that Quinn had been convicted of a “serious crime” and requested a hearing.

On November 13, 2002, the Disciplinary Board convened a hearing on the petition to determine whether Quinn’s conviction for contributing to the delinquency of a minor, in violation of § 12-15-13, Ala.Code 1975, constituted a “serious crime” within the meaning of Rule 22(a)(2), Ala. R. Disc. P. Quinn did not appear at the hearing. On November 18, 2002, the Disciplinary Board entered an order finding that the offense Quinn had been convicted of was a “serious crime” for the purpose of Rule 22(a)(2).

On November 22, 2002, Quinn, with new counsel, T. Jefferson Deen III, appeared before the Disciplinary Commission, which had convened to determine his discipline, and requested a continuance in order to seek relief from the Disciplinary Board’s determination that he had been convicted of a serious crime. The Disciplinary Commission granted the continuance. On December 2, 2002, Quinn filed with the Disciplinary Board a motion for relief from the Board’s order. The State Bar filed a response in opposition to the motion for relief, and Quinn filed his reply. On December 31, 2002, the Disciplinary Board entered an order denying Quinn’s motion for relief.

On January 3, 2003, the Disciplinary Commission conducted a hearing pursuant to Rule 22(a), Ala. R. Disc. P., to determine Quinn’s discipline. The State Bar presented evidence indicating that Quinn had pleaded guilty to contributing to the delinquency of a minor and that the underlying conduct involved “giving away” marijuana to the minor. Quinn testified at the hearing that despite his plea of guilty to the offense of contributing to the delinquency of a minor based on his smoking marijuana and giving it to the minor, there was no marijuana at his residence, that he and the minors were playing a joke on some “tough street gang type boys” at the Halloween party, and that they were smoking a cigarette that contained oregano, not marijuana. He stated that while he was guilty of “poor parenting skills” and stupidity, he did not believe that his conduct was illegal or that it warranted disbarment.

At the hearing, the State Bar contended that Quinn’s conduct required disbarment because it fell squarely under Standard 5.1 of the Alabama Standards for Imposing Lawyer Discipline. The State Bar argued that disbarment was appropriate in Quinn’s case because “disbarment is appropriate when a lawyer engages in a serious criminal conduct, ... which includes the distribution of a controlled substance.” The State Bar further argued that aggravating factors to be considered in determining Quinn’s discipline included the fact that the minor in this case was a 14-year-old girl, that in committing the offense Quinn had also made marijuana available to several 13- and 14-year-old children, that Quinn was a recent admittee to the Alabama State Bar and therefore should have had a “heightened sense of professional responsibility,” that he submitted false evidence in support of a pleading submitted to the Disciplinary Board, and that he refused to acknowledge responsibility for the wrongful nature of his conduct.

On January 13, 2003, the Disciplinary Commission ordered that Quinn be disbarred, stating:

“4. That Rule 5.11 of the Alabama Standards for Imposing Lawyer Discipline provides as follows:
“ ‘Disbarment is generally appropriate when:
“ ‘(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses;’ (emphasis added [by Disciplinary Commission])
“5. That based on Rule 5.11 of the Alabama Standards for Imposing Lawyer Discipline, ... absent some compelling reason to depart from that standard, the appropriate discipline is disbarment.
“6. That [Quinn] attempted to demonstrate that he was not guilty of the underlying facts upon which the conviction was based. That based upon the evidence presented to the Commission in the form of the testimony of [Quinn], the records of the court of Jefferson County, the videotape depicting the underlying facts of the conviction in that court, this Commission finds that the testimony of [Quinn] is totally without credibility.
“7. That the Commission finds that there are no facts that were presented to the Commission which, under Standard 9.3 of the Lawyer Discipline Standards would be considered as mitigating factors in imposing the appropriate penalties.
“8. That the Commission finds that there were the following aggravating factors under Standard 9.2 of the Lawyer Discipline Standards.
“(a) Under Standard 9.22(f) the Commission finds that there was a submission of false evidence, false statements, or other deceptive practices during the disciplinary process. This finding is based on the finding of the Commission that the testimony presented by [Quinn] at the hearing was totally lacking in credibility, and it is the finding of the Commission that said testimony was false.
“(b) Under 9.22(g) of the Lawyer Discipline Standards, the Commission finds refusal to acknowledge wrongful nature of conduct based upon the continued denial of wrongdoing by [Quinn]. It is clear that he has failed to acknowledge the wrongful nature of his conduct and failed to acknowledge his true conduct in this proceeding. “(c) Under 9.22(h), vulnerability of the victim, the Commission finds that the victims in this case, i.e., minors, some of [whom] were under the direct supervision and control of [Quinn] [and that this aggravating circumstance] exists. In addition to the obvious victims, i.e., the minors involved in the situation which resulted in the criminal conviction, both society at large, and the Bar in particular, suffer irreparable injury from conduct of this nature which impacts our society as a whole, and particularly impacts an already beleaguered profession by adversely reflecting thereon.
“9. It is the unanimous finding of this Commission that there is no reason why [Quinn] should be suspended as opposed to disbarred.”

Quinn filed a notice of appeal to the Board of Disciplinary Appeals.

On February 27, 2004, the Board of Disciplinary Appeals reversed the determination of the Disciplinary Commission that Quinn should be disbarred, holding that the discipline of disbarment was “manifestly excessive.” The Board of Disciplinary Appeals stated:

“Quinn challenges the order of the Disciplinary Commission, disbarring him from the practice of law as excessive. This case is clearly tragic, since Quinn was only admitted to the bar on September 28, 2001, shortly thereafter engaged in the conduct which formed the basis for the criminal offense, and pleaded guilty on April 8, 2002....
“An extensive hearing was conducted by the Disciplinary Commission in which evidence as to both aggravating and mitigating factors [was] received. Quinn attempted to demonstrate that he was not guilty of the offense, but significantly the Disciplinary Commission found his testimony to be ‘totally without credibility.’ Further, the Disciplinary Commission considered that Quinn had submitted false statements during the disciplinary process by his attempt to justify his conduct in the underlying events. Quinn has failed to show that these factual findings are clearly erroneous. This Board reviewed the relevant portions of the videotape (which is part of the record) and it reflects truly disturbing conduct by Quinn. It is understandable that when the Commission rejected Quinn’s testimony that the substance was not marijuana, but rather some harmless material, it was confronted with a case warranting strong discipline.
“After careful review and consideration of all arguments, this Board concludes that Quinn has met his burden of demonstrating that the decision to disbar is manifestly excessive. This Board agrees with the State Bar that this was a crime involving moral turpitude....
“The Bar argues that disbarment was appropriate because the crime involved as a necessary element ‘the sale, distribution or importation of controlled substances.’ Having viewed the videotape ourselves, and considering all the facts as found by the Disciplinary Board and the Commission, we simply do not believe that Quinn’s conduct, while bizarre and inappropriate, involved distribution as a necessary element of the misdemeanor charge.
“This Board concludes that under all of the circumstances, the appropriate punishment is a period of suspension from the practice of law of six months. Such a suspension appears more in line with and consistent with penalties imposed in other cases, and fully accomplishes the purpose of the disciplinary rules. Quinn made a very serious mistake, but not one which should preclude him from the bar for at least five years. His lack of truthfulness before the Disciplinary Commission was a second egregious act thus warranting a significant period of suspension. At the end of such suspension, Quinn must seek reinstatement and establish again that he has the character and fitness to practice law.”
Standard of Review
“We conclude that whether the Board of Appeals properly applied the ‘clearly erroneous’ standard of review to the Disciplinary Board’s findings of fact is a question of law. Likewise, all other legal conclusions in the final order of the Board of Appeals present questions of law to us. This Court reviews questions of law de novo. National Ins. Ass’n v. Sockwell, 829 So.2d 111 (Ala.2002); Moss v. Williams, 822 So.2d 392 (Ala.2001); and Reed v. Board of Trustees of Alabama State Univ., 778 So.2d 791 (Ala.2000). Such a de novo review results in this Court’s applying the same standard the Board of Appeals applied as to all questions of law, including the application by the Board of Appeals of the ‘clearly erroneous’ standard to the Disciplinary Board’s findings of fact.”

Tipler v. Alabama State Bar, 866 So.2d 1126, 1137 (Ala.2003).

Discussion

The State Bar contends that the Board of Disciplinary Appeals erred in concluding that the sanction of disbarment imposed by the Disciplinary Commission was manifestly excessive. Specifically, the State Bar argues that the sanction of disbarment was not manifestly excessive when Quinn’s conduct is considered under the Alabama Standards for Imposing Lawyer Discipline.

Rule 22(a)(2), Ala. R. Disc. P., provides that the Disciplinary Commission shall disbar or suspend a lawyer if the lawyer has been convicted of a serious crime, as that term is defined in Rule 8, Ala. R. Disc. P. Standards 5.1 and 5.11(a) of the Alabama Standards for Imposing Lawyer Discipline provide that absent aggravating or mitigating circumstances, disbarment is generally appropriate when “a lawyer engages in serious criminal conduct, a necessary element of which includes ... the sale, distribution or importation of controlled substances....”

Here, it is undisputed that Quinn’s conviction for contributing to the delinquency of a minor constituted a conviction for a serious crime under Rule 22(a)(2), Ala. R. Disc. P. Therefore, the only issue before us is whether disbarment is the proper discipline. To determine the proper discipline, we must decide whether a necessary element of Quinn’s crime — contributing to the delinquency of a minor — was the “distribution” of a controlled substance. After reviewing the evidence, including the videotape, we conclude as a matter of law that “distribution” of a controlled substance was a necessary element of Quinn’s conviction for contributing to the delinquency of a minor.

The videotape establishes that Quinn was present in the group of minors when a minor rolled the marijuana “blunt,” that Quinn smoked the marijuana “blunt,” and that he handed the “blunt” to another minor to smoke. While the minor who rolled the “blunt” claimed ownership of the marijuana, Quinn actively encouraged and engaged in the smoking and “giving away” of the marijuana “blunt.”

In the State of Alabama “unlawful distribution of a controlled substance” includes the furnishing or giving away of a controlled substance. § 13A-12-211, Ala. Code 1975. Marijuana is a controlled substance. See § 20 — 2—23(3)(j), Ala.Code 1975. “A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense ... [h]e ... induces or causes such other person to commit the offense; or ... [h]e aids or abets such other person in committing the offense.” § 13A-2-23(l) and (2), Ala.Code 1975. An accomplice is just as guilty of the offense as is the principal offender. See Garrison v. State, 521 So.2d 997 (Ala.Crim.App.1986).

Here, the evidence, especially the videotape, clearly establishes that Quinn was at a minimum an accomplice to the distribution of marijuana to F.F.T. and other minors and that this conduct was a necessary element of his conviction for contributing to the delinquency of F.F.T. The videotape establishes that a large bag of marijuana was at Quinn’s house on the night of the offense. The evidence further indicates that Quinn was the only adult — the only authority figure — -at the residence that night. Quinn was aware of the presence of marijuana at his residence, watched a minor “roll” the marijuana into a “blunt,” smoked the marijuana “blunt,” and “gave away” the marijuana “blunt” to F.F.T. and on at least two other occasions to other minors for them to smoke. Quinn also encouraged the minors to eat candy to disguise their breath before their mothers picked them up. Quinn in his conversation with the minors further encouraged the distribution and smoking of the marijuana by the minors by remarking that one of the minors “had great suction” when smoking the blunt. He further told the minors on the videotape, “This weekend we’ll get some good stuff.” Immediately after Quinn made this remark, F.F-T. identified the source of the “good stuff.” Quinn’s statements and his conduct clearly establish that while he may not have been a principal in the distribution of the marijuana, he was definitely an accomplice to the furnishing and giving away of the marijuana to F.F.T. and the other minors and that this conduct was a necessary element of his conviction for contributing to the delinquency of F.F.T. Therefore, in accordance with Standard 5.11 of the Alabama Standards for Imposing Lawyer Discipline, even without considering any aggravating circumstances, we conclude that disbarment is the appropriate discipline.

Moreover, the propriety of the discipline of disbarment becomes unquestionable in light of the aggravating circumstances. The evidence clearly establishes that there are no mitigating circumstances to consider and that the following aggravating circumstances exist: that Quinn refused to accept responsibility for his conduct, see Standard 9.22(g); that he submitted false evidence and testimony during the disciplinary process, see Standard 9.22(f); and that the victim of his conduct was a vulnerable 14-year-old girl who had been entrusted into his care, see Standard 9.22(h). Clearly, even if disbarment were not the appropriate punishment for the offense alone, disbarment is required when the aggravating circumstances are considered.

“ ‘ “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”’ Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).” Tipler, 866 So.2d at 1137. Here, the evidence clearly supports the Disciplinary Commission’s decision to punish Quinn by disbarment; therefore, the Board of Disciplinary Appeals erred in overriding the Commission’s decision and ordering that Quinn be suspended for six months instead of disbarred.

Conclusion

For the foregoing reasons, we reverse the order of the Board of Disciplinary Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SEE, WOODALL, and PARKER, JJ., concur in the result.

      . When Quinn arrived at the station, he was wearing the same clothes he was wearing in the videotape. The deputies later learned that Quinn is not F.F.T.'s father; rather, he is her .mother’s former boyfriend. The evidence indicates that F.F.T.'s mother had sent F.F.T. to live with Quinn so he could be a “positive” influence on her.

      . Although Quinn testified before the Disciplinary Commission that this statement was made in reference to refreshments served at the party, it is clear from the videotape that Quinn’s statement and F.F.T.’s identification of the source of the “good stuff” were references to acquiring more marijuana.


author: HARWOOD, Justice.

text:
    W. Bruce LEITHEAD III v. BANYAN CORPORATION.
    1040688.
    Supreme Court of Alabama.
    Sept. 23, 2005.
    Rehearing Denied Nov. 10, 2005.

      K.W. Michael Chambers and Adam T. Williamson of Chambers <& Williamson, L.L.C., Mobile, for appellant.
    Cinda R. York and Kirk D. Smith of Campbell, Waller & Poer, L.L.C., Birmingham, for appellee.
   HARWOOD, Justice.

W. Bruce Leithead III appeals from an order entered by the Shelby Circuit Court dismissing his complaint on the basis that the court lacked jurisdiction over Banyan Corporation (“Banyan”). We reverse and remand.

I. Facts and Procedural History

Leithead is an Alabama resident. Banyan was formed in 1978 as an Oregon corporation with its principal place of business in California. In 1995 Banyan acquired DoubleCase Corporation (“Dou-bleCase”), a Kansas corporation with its principal place of business in Colorado, as a wholly owned subsidiary. In May 2001 Banyan acquired Chiropractic USA, Inc. (“Chiropractic”), a Colorado corporation with its principal place of business in Louisiana, also as a wholly owned subsidiary.

In the summer of 2001, Leithead, anticipating being named president of Double-Case, sought and received Banyan’s permission to relocate DoubleCase’s principal place of business from Colorado to Alabama. On November 1, 2001, Leithead purportedly entered into a written employment contract with DoubleCase; the contract referred to Leithead as president of DoubleCase. The contract provided, among other things, that Leithead’s compensation package would include 400,000 shares of Banyan’s common stock, as well as options to purchase an additional 400,-000 shares of Banyan’s common stock. In the event DoubleCase terminated Leit-head’s employment before December 31, 2003, Leithead would immediately be entitled to the 400,000 shares promised as compensation and would have 60 days in which to exercise all stock options. Three entities are listed as parties to the contract: DoubleCase, Leithead, and Banyan. There is a signature line for Banyan as the “parent” company, under which is typed the name “Michael Gelmon, C.E.O.”; this line is signed by Michael Gelmon. The signature line provided for execution by DoubleCase proposed that it would be signed by “Michael Gelmon, Director.” That entry is marked through with a large “X,” followed by the cursive initials “MG.” Michael Gelmon subsequently stated in an affidavit that he had marked through the DoubleCase signature line because it incorrectly listed him as a director of Dou-bleCase, which he asserted he was not and has never been. Whatever Gelmon’s relationship with DoubleCase, no other person signed the contract on behalf of Double-Case.

According to Leithead, Banyan exercised significant control over DoubleCase. He makes repeated reference to the Gel-mon brothers, Michael and Cory, who held a controlling interest in Banyan. Leit-head’s affidavit filed in opposition to Banyan’s motion for a dismissal on the ground of lack of jurisdiction states, in pertinent part:

“6. ... Banyan, through the Gel-mons, made all significant decisions for and controlled [DoubleCase]. Although I primarily ran the day-to-day operations of [DoubleCase’s] business, Banyan’s representatives made the significant decisions, including the move to the State of Alabama, my compensation package, and they had to approve [Dou-bleCase’s] entire business plan, which they did. I was required to provide regular reports to Banyan’s representatives on [DoubleCase’s] business and maintained a constant dialogue with them regarding [DoubleCase’s] activities, accounts, money coming in, and the like. On the average, I would say that I communicated with Banyan and the Gel-mons four (4) times per week in this regard during the time period that [DoubleCase] maintained the office in Alabama. We generally communicated by telephone, or by e-mail at times.
“8. On or about November 1, 2001, I signed an employment contract with [DoubleCase]/Banyan.... Michael Gel-mon sent the employment contract to me in the State of Alabama, and I signed the contract in the State of Alabama. ...
“9. Banyan sent me 400,000 shares of Banyan stock in Alabama in or about November 2001....
“17. Mr. Gelmon’s affidavit states that Banyan does not transact business or enter into contracts in the State of Alabama. Banyan was clearly a party to the employment contract with me.... In addition, I know that Banyan previously entered into an agreement with Cary Neil in 2002 for Cary to keep Banyan’s financial books. Cary lived and worked in Birmingham, Alabama at that time, and Cary worked on the books for Banyan while in Alabama. I believe that Banyan sent payments to Cary in Alabama during this time period.
“18. ... Attached ... is a true and correct copy of the annual report for the year ending December 31, 2001 submitted by the Gelmons, on behalf of Banyan, to the Securities and Exchange Commission (‘SEC’) that I obtained. In this document, Banyan and the Gelmons represented to the SEC on page 15 that Banyan had a ‘management agreement’ in place with me. And, on page 38, it is represented that Banyan ‘entered into a two-year employment agreement’ with me in November 2001. These statements further demonstrate that Banyan was a party to my employment contract.”

As Leithead states in the final paragraph quoted above, Banyan’s annual report submitted to the Securities and Exchange Commission, which is included in the record, on page 15 states that “[Banyan] currently has management agreements in place with Cory Gelmon, Michael Gelmon, and [Leithead], the president of Double-Case.” Additionally, as Leithead alleges, page 38 of the same report indeed states that “[i]n November 2001, [Banyan] entered into a two-year employment agreement ... expiring on December 31, 2003, with the president of DoubleCase.”

Over time, DoubleCase’s financial health deteriorated, resulting in the virtual collapse of the corporation, at which time Banyan sold DoubleCase to another company. This sale and Leithead’s consequent termination as president of Double-Case occurred on October 30, 2002.

Before the sale of DoubleCase, the Gel-mons had invited Leithead to meet with them in Canada. Leithead alleges that at that meeting they offered him employment as an area developer for Chiropractic. Leithead returned to Alabama, and during the next two or three months, as DoubleCase was sold, he communicated by telephone at least 12 times with representatives of Banyan, about half of those telephone conversations being with one or both of the Gelmons. Leithead even met with the Gelmons in Louisiana in November 2002. According to both Leithead’s complaint and his affidavit, in telephone conversations during that time, Banyan representatives told Leithead to refrain from exercising the stock options he became entitled to exercise as of the date of his termination as president of Double-Case — and which would expire 60 days from that date — explaining that those stock options would “roll over” into Leit-head’s new position with Chiropractic. Leithead complied with these instructions and refrained from exercising his stock options.

On December 29, 2002, Leithead’s stock options expired. Some time between November 2002 and April 2003, Banyan made the corporate decision to retain only chiropractors as area developers of Chiropractic; Leithead is not a chiropractor. In April 2003, Michael Gelmon telephoned Leithead and left him a voice mail, informing him of Banyan’s decision to use only chiropractors as area developers.

On January 9, 2004, Leithead filed the underlying action in the Mobile Circuit Court against Banyan, Chiropractic, and DoubleCase. His complaint alleged that Banyan, Chiropractic, and DoubleCase were liable for breach of contract and negligence. On March 11, 2004, Banyan and Chiropractic filed a motion to dismiss pursuant to Rule 12(b)(2), Ala. R. Civ. P., arguing that the trial court lacked personal jurisdiction over them. Pursuant to an agreement of the parties, the court subsequently transferred the underlying action to the Shelby Circuit Court. That court heard oral argument, apparently not reported and transcribed, after which it granted the motions to dismiss filed by Banyan and Chiropractic. The trial court certified, pursuant to Rule 54(b), Ala. R. Civ. P., that there was no just reason for delay and that its order as to each motion to dismiss constituted a final judgment. Leithead timely appealed the judgment as to Banyan only.

II. Standard, of Review

“ ‘ “An appellate court considers de novo a trial court’s judgment on a motion to dismiss for lack of personal jurisdiction.” ’ ” Corporate Waste Alternatives, Inc. v. McLane Cumberland, Inc., 896 So.2d 410, 413 (Ala.2004) (quoting Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002), quoting in turn Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002)). Further:

“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)). ‘For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].’ Duke v. Young, 496 So.2d 37, 38 (Ala.1986).”

Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001).

III. Analysis

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 McInnis, 820 So.2d at 802; 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 “[ajppropriate 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.

“ ‘ “The plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.”’” Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229 (Ala.2004) (quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003), quoting in turn Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002)). On appeal, Leithead offers this Court numerous alternative approaches by which he argues we should find that Alabama has jurisdiction over Banyan. Because we find that the trial court had in personam jurisdiction over Banyan through the catchall provision of Rule 4.2(a)(2)(I), we pretermit discussion of Leithead’s other jurisdictional theories.

“ ‘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....
“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 at 525-26. We conclude that Banyan is subject to the jurisdiction of Alabama’s courts because of its general contacts with Alabama.

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).

Looking to the record before us, we consider Banyan to have had the following contacts with Alabama: representatives of Banyan, including the Gelmons, placed an estimated 270 telephone calls to Leithead in Alabama. Banyan signed and subsequently mailed an employment contract to Leithead in Alabama, as well as certificates evidencing Leithead’s acquisition of shares of Banyan stock. Banyan had a “management agreement” with Leit-head, so that Leithead’s activities in Alabama constituted, at least in part, a business presence by Banyan in this State. Finally, Leithead alleges (and under our standard of review we must accept as true) that Banyan employed Cary Neil, an Alabama resident, as one of its bookkeepers during the time period in question.

With respect to the employment of Cary Neil, we initially note that Banyan has not denied any of Leithead’s allegations, beyond the general statement in Michael Gelmon’s affidavit that Banyan has no agents in Alabama. We thus consider Neil to have been an employee of Banyan who worked within Alabama; employing an Alabama resident to work within the State clearly constitutes a general contact with Alabama.

We now turn to Banyan’s telephone calls to and its mailing of a contract and stock certificates to Leithead. In Steel Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So.2d 910, 913 (Ala.1993), this Court stated that “ ‘[t]he use of interstate facilities (telephone, the mail) ... [is a] secondary or ancillary factor[ ] and cannot alone provide the “minimum contacts” required by due process.’” 622 So.2d at 913 (quoting Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir.1982)). This Court’s emphasis in Steel Processors on the inability of telephone calls or mailed documents “alone” to provide minimum contacts indicates that, in conjunction with other contacts, telephone calls and mail can constitute contacts that can be considered to determine whether a party has subjected itself to general jurisdiction of the courts of this State. Further support for this notion is found in Investors Guaranty Fund, Ltd. v. Compass Bank, 779 So.2d 185 (Ala.2000), in which we found that the trial court had jurisdiction based on numerous contacts between the out-of-state defendant and Alabama; in discussing those contacts we referenced “repeated telephone and written communication” as “further” evidence of those contacts. 779 So.2d at 190.

Considering the presence of a Banyan employee in Alabama during the time in question, as well as the presence of Leit-head in his capacity under the employment agreement to which Banyan was a party, plus nearly 300 telephone calls made by Banyan to Leithead in Alabama during that same time frame, we believe that Banyan’s contacts with Alabama were both “substantial” and “continuous and systematic.” Consequently, we conclude that it was foreseeable to Banyan that it could be haled into an Alabama court and subjected to its jurisdiction.

Further, Banyan’s contacts with Alabama did not arise through the unilateral activity of Leithead or Neil. Although Leit-head indisputably relocated DoubleCase to Alabama, he did so after seeking and receiving Banyan’s permission. This evidences bilateral, not unilateral, conduct. In addition, although we have no evidence indicating Cary Ned’s exact connection to Alabama, other than his residency, the facts, viewed in the light most favorable to Leithead, demonstrate that Neil did not unilaterally create Banyan’s contact with Alabama. Finally, there is no suggestion whatever that only Leithead telephoned Banyan, and Banyan expressly states that it mailed an employment contract to Leit-head in Alabama for execution. In short, Banyan purposefully availed itself of the privilege of doing business in Alabama.

The final analysis in which we must engage is whether subjecting Banyan to Alabama’s jurisdiction would violate traditional notions of “fair play and substantial justice.” International Shoe v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This Court, in an appropriate case, may evaluate (1) the burden on Banyan of litigating in Alabama, (2) Alabama’s “interest in adjudicating the dispute,” (3) Leithead’s “interest in obtaining convenient and effective relief,” (4) “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” and (5) the “shared interest of the several States in furthering fundamental substantive social policies.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

With respect to these factors, we find as follows. Defending this action in Alabama, when Banyan’s activities extend to locales such as California, Louisiana, and Canada, in addition to Alabama, would not seem to impose a significant financial burden upon Banyan. Second, as we have explained, Alabama will always have an interest in “providing an effective means of recovery for a resident who has been damaged.” Shrout v. Thorsen, 470 So.2d 1222, 1225 (Ala.1985). Third, Leithead obviously has an interest in securing relief without having to resort to the expense of traveling to a jurisdiction such as California for a trial. Finally, neither party offers any reason that this Court should consider the interests of the interstate judicial system or the substantive social policies of the possible jurisdictions that are involved in the events underlying this action.

Therefore, after appropriately weighing these factors, we conclude that subjecting Banyan to Alabama’s jurisdiction would not violate “traditional notions of fan.* play and substantial justice” and that Banyan has not otherwise shown that the exercise of jurisdiction by this State over this action would be unreasonable. Consequently, we hold that Banyan is subject to the general jurisdiction of the Shelby Circuit Court.

Conclusion

Because Banyan is subject to the general jurisdiction of the Shelby Circuit Court, the trial court erred in granting its motion to dismiss. The trial court’s judgment is accordingly reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, STUART, and BOLIN, JJ., concur.

      . DoubleCase did not join in this motion. Leithead later sought a default judgment against DoubleCase; and although the record contains no indication that a judgment has been entered, there was an entry on the case action summary sheet declaring the motion for a default judgment had been “granted” with leave to prove damages.

      . Both the underlying conduct and the filing of this action occurred before August 1, 2004, when an amendment significantly revising Rule 4.2, Ala. R. Civ. P., became effective. Thus, Rule 4.2 as it existed before the August 1 amendment is to be applied in the instant action.

      . The amendment to Rule 4.2, Ala. R. Civ. P., effective August 1, 2004, deleted the "laundry list” of types of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama, "[bjecause the 'catchall' clause has consistently been interpreted to go to the full extent of federal due process.” Committee Comments to Amendment of Rule 4.2 Effective August 1, 2004.


author: NABERS, Chief Justice. HARWOOD, Justice

text:
    CONTINENTAL NATIONAL INDEMNITY COMPANY and Progressive Specialty Insurance Company v. Betty FIELDS, as personal representative of the estate of Lisa Gale Tamms, deceased.
    1040379.
    Supreme Court of Alabama.
    Oct. 21, 2005.

      Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant Continental National Indemnity Company.
    R. Larry Bradford and Justin Lamb of Bradford Law Firm, P.C., Vestavia Hills, for appellant Progressive Specialty Insurance Company.
    D. Milburn Gross, Jr., of Abies, Baxter, Parker & Hall, P.C., Huntsville, for appel-lee.
   NABERS, Chief Justice.

Continental National Indemnity Company and Progressive Specialty Insurance Company appeal by permission, pursuant to Rule 5, Ala.R.App.P., from the denial of a motion for a summary judgment they filed in an action brought by Betty Fields, as personal representative of the estate of Lisa Gale Tamms, deceased, to recover uninsured/underinsured-motorist (“UM”) benefits. We reverse the order denying the summary judgment and remand the case.

Facts

On May 14, 2001, Tamms was injured in an automobile accident when her vehicle was allegedly struck by a vehicle driven by Doyle Coultas, an uninsured motorist. In November 2002, Tamms died from a cause unrelated to the automobile accident. On May 14, 2003, Fields, as personal representative of Tamms’s estate, sued Continental and Progressive to recover UM benefits for injuries Tamms sustained in the 2001 accident. Tamms herself did not file an action based on the 2001 accident before she died.

At' trial, Continental and Progressive filed a motion for a summary judgment on the ground that Tamms’s tort cause of action against the uninsured motorist did not survive her death, and, thus, her estate could not establish that it was “legally entitled to recover” against Coultas as required by Alabama’s uninsured-motorist statute, § 32-7-23, Ala.Code 1975, under the rationale of this Court’s recent holding in Ex parte Carlton, 867 So.2d 332 (Ala.2003). The trial court denied Continental and Progressive’s motion for a summary judgment and certified the denial of the motion for an interlocutory appeal. This Court granted the petition for permission to appeal.

Standard of Review

An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, “[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.” Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the denial of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.

Issue

The controlling question of law before this Court, as stated by the circuit court in its Rule 5(a), Ala.R.App.P., certification, is as follows:

“Whether Ala.Code [1975,] § 6-5-462[,] and the interpretation by the Supreme Court of Alabama in Ex parte Carlton, 867 So.2d 332 (Ala.2003)[,] of the requirement in Ala.Code [1975,] § 32-7-23(a)[,] that persons insured thereunder be ‘legally entitled to recover damages’ bar the Estate of a deceased from maintaining an action for uninsured motorists (UM) benefits against uninsured motorists carriers when the decedent filed no personal injury action against the alleged tortfeasor prior to her death from an unrelated cause.”

We hold that Fields, as personal representative of Tamms’s estate, cannot recover UM benefits under the Continental policy or the Progressive policy because she cannot establish that the estate is “legally entitled to recover damages” against the uninsured motorist, a condition precedent to the recovery of UM benefits under Alabama’s uninsured-motorist statute.

Analysis

In answering the controlling question of law presented by this case, we focus, as we did in Carlton, on the plain and unambiguous language of Alabama’s uninsured-motorist statute. The statute provides, in pertinent part:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ..., in limits for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom .... ”

Ala. Code 1975, § 32-7-23 (emphasis added).

In Carlton, this Court stated that the phrase “legally entitled to recover” in the uninsured-motorist statute means that “ ‘[i]n a direct action by the insured against the insurer, the insured has the burden of proving ... that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability.’” Carlton, 867 So.2d at 334 (quoting State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973)) (emphasis added). In Carlton, this Court addressed the issue whether an insured was legally entitled to recover UM benefits under the uninsured-motorist statute when the uninsured motorist had a complete defense, unrelated to any wrongdoing by the uninsured motorist, to the insured’s personal-injury claim. This Court concluded that an employee, injured in a motor-vehicle accident while acting in the scope of his employment, who was barred by the exelusivity-of-remedy provision in the Workers’ Compensation Act from recovering against a co-employee based on negligence, was not entitled to UM benefits. 867 So.2d at 338.

With our holding in Carlton, we overruled a series of cases in which we had created exceptions to the uninsured-motorist statute and had allowed the recovery of UM benefits even when the uninsured motorist had a defense to recovery and the insured was not “legally entitled to recover damages” from the uninsured motorist as required by the statute.

Carlton explicitly overruled State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985) (holding that a member of the armed services may recover UM benefits for injuries sustained in a collision with a uninsured vehicle driven by an civil employee of the federal government regardless of the fact that Baldwin was otherwise prohibited from recovering against the uninsured motorist as a result of governmental immunity); State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996) (holding that a citizen may recover UM benefits for injuries sustained in a' collision with a police vehicle despite the fact that the vehicle was covered by an insurance policy under the rationale that because the police officer driver was protected from liability by substantive immunity, he was, in effect, uninsured); and Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998)(holding that a passenger may recover UM benefits for injuries sustained in an automobile accident where she was precluded from suing the negligent driver, who was insured, under Alabama’s guest statute).

Our decision in Carlton was based on the rationale that Carlton was not “legally entitled to recover” under the uninsured-motorist statute because Carlton’s cause of action was barred by the Workers’ Compensation Act, which provided the exclusive remedy. Carlton, 867 So.2d at 338. We held that Carlton could not carry his burden of proof under the uninsured-motorist statute; Carlton could not prove that his co-employee was legally liable to him for damages because the co-employee had a defense provided by the exclusivity-of-remedy provision in the Workers’ Compensation Act. 867 So.2d at 338. In so holding, this Court quoted with approval Justice Lyons’s dissent in Hogan:

“ T believe that whether an insured is “legally entitled to recover” depends entirely on the merits of the insured’s claim against a tortfeasor under the laws of the state. However, today’s decision, like Baldwin and Jeffers, has construed that phrase to mean “legally entitled to recover but for a defense that does not arise out of any wrongful conduct of the insured,” a defense such as immunity or an insured’s status as a guest.’ ”

867 So.2d at 337. In overruling Hogan, Baldwin, and Jeffers, this Court rejected the judicial altering of the clear meaning of the uninsured-motorist statute and “return[ed] to the point from which this Court never should have departed—the language of the statute.” 867 So.2d at 337.

We base our decision in the present case on the plain language of Ala.Code 1975, § 32-7-23, and the clearly stated rationale in Carlton. Under Carlton, Fields’s claim against Continental and Progressive depends entirely on the merits of the claim against Coultas, the uninsured motorist. In Carlton, the exelusivity-of-remedy provision in the Workers’ Compensation Act prevented Carlton from proceeding against the negligent uninsured motorist because the provision precluded any other recovery and provided a defense for the negligent co-employee. In the same manner, the laws of this State, which provide that a tort action does not survive the death of the injured party, preclude Fields, the personal representative of Tamms’s estate, from proceeding against the allegedly negligent uninsured motorist.

As a general rule, causes of action in tort do not survive in favor of the personal representative of the deceased. Wynn v. Tallapoosa County Bank, 168 Ala. 469, 490, 53 So. 228, 237 (1910) (at common law, the cause of action died with the person); City of Birmingham v. Walker, 267 Ala. 150, 160, 101 So.2d 250, 259 (1958) (it is well settled that, in absence of a statute, a personal cause of action in tort does not survive). Alabama’s statutory law dealing with the survival of causes of action is found at Ala.Code 1975, § 6-5-462, which provides:

“In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor.”

This statute did not change the common-law rule in Alabama that a cause of action in tort does not survive in favor of the personal representative of the deceased. Malcolm v. King, 686 So.2d 231, 236 (Ala.1996) (under § 6-5-462, “an unfiled tort claim will generally not survive the death of the person with the claim”).

Causes of action in contract, however, do survive the death of the claimant under Ala.Code 1975, § 6-5-462. Benefield v. Aquaslide ‘N’ Dive Corp., 406 So.2d 873, 875 (Ala.1981) (“A contract action pursuant to § 6-5-462 survives in favor of the personal representative regardless of whether the decedent filed the action before his death.”). Because the cause of action asserted in this case under the uninsured-motorist statute is contractual, State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302, 307 (1973), Fields asserts that Tamms’s cause of action seeking UM benefits survives her death.

We agree that Tamms’s contractual cause of action survives her death; the fact that her cause of action survives does not, however, answer the ultimate question of whether her estate is “legally entitled to recover” under the. uninsured-motorist statute. To satisfy this condition precedent to recovery, Fields, as Tamms’s personal representative, must establish that the uninsured motorist, Coultas, is legally liable to the estate for damages. Fields cannot meet this burden. The failure of Tamms’s tort cause of action to survive her death provides a complete defense for the uninsured motorist, Coultas, against an action filed by Tamms’s estate after her death. As a result, the insured is not “legally entitled to recover” from the uninsured motorist through her estate, and under the plain language of the uninsured-motorist statute as interpreted in Carlton, Tamms’s estate is not entitled to UM benefits under the Continental policy or the Progressive policy.

Fields argues that this case is distinguishable from Carlton and the cases we overruled in Carlton because, she argues, Tamms could have sued and recovered from the uninsured motorist in tort before her death. Thus, Fields asserts, this Court should allow Tamms’s estate to recover under the uninsured-motorist statute, notwithstanding the fact that the estate cannot recover directly from the uninsured motorist. In effect, Fields asks us to create a new exception to the plain language of the uninsured-motorist statute, which requires the insured to be “legally entitled to recover” from the uninsured motorist. Fields, as personal representative of Tamms’s estate, is not legally entitled to recover from the uninsured motorist. The uninsured-motorist statute carves out no exception for causes of action that may have been viable at one time but that are barred by a defense at the time they are filed.

In Carlton, we overruled cases that “carved out judicial exceptions to the legislative determination that an insured could recover uninsured-motorist benefits only when the insured was legally entitled to recover from the uninsured motorist.” Carlton, 867 So.2d at 336. Today, proceeding under Carlton, we refuse to return to the days of judicially created exceptions to the plain language of the uninsured-motorist statute.

Accordingly, we reverse the order denying Continental and Progressive’s summary-judgment motion and remand the case for the trial court to enter a summary judgment for Continental and Progressive.

REVERSED AND REMANDED WITH INSTRUCTIONS.

SEE, STUART, and BOLIN, JJ., concur.

HARWOOD, J., concurs specially.

HARWOOD, Justice

(concurring specially).

I concur fully with the main opinion, based on the facts at issue. The estate of Lisa Gale Tamms never was legally entitled to recover damages from Doyle Coul-tas, the uninsured motorist. The cause of action that accrued in Tamms’s favor against Coultas did not survive her death; thus, her estate, as the plaintiff in the action for UM benefits, was, from its inception, not entitled to recover damages from Coultas. I express no opinion as to what might be the proper analysis in a case in which an action for UM benefits is filed before the insured dies.

      . Based on the record before us, it appears that at the time of the 2001 accident, Tamms was insured both by Continental and by Progressive and that her policies provided for UM benefits. Although the exact language of the insurance policies is not in the record, the policies are required directly or indirectly to incorporate the language and requirements of Alabama’s uninsured-motorist statute. This Court has stated that "Section 32-7-23 [, Ala. Code 1975,] must be read into every motor-vehicle liability policy as fully as if stated in the policy itself.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 812 (Ala.2005). Therefore, the Alabama uninsured-motorist statute and all of its provisions were terms of the insurance contracts between Tamms and Continental and Tamms and Progressive.

      . Under Ala.Code 1975, § 32-7-23(b),
      “[t]he term 'uninsured motor vehicle’ shall include, but is not limited to, motor vehicles with respect to which:
      "(1) Neither the owner nor the operator carries bodily injury liability insurance;
      "(2) Any applicable policy liability limits for bodily injury are below the minimum required under Section 32-7-6;
      "(3) The insurer becomes insolvent after the policy is issued so there is no insurance applicable to, or at the time of, the accident; and
      “(4) The sum of the limits of liability under all bodily injury liability bonds and insurance policies available to an injured person after an accident is less than the damages which the injured person is legally entitled to recover.”


author: CRAWLEY, Presiding Judge.

text:
    M.M. v. B.L. and M.L.
    2040731.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.

      Nath T. Camp, Jr., Jasper, for appellant.
    J. Kenneth Guin, Jr., Carbon Hill, for appellees.
   CRAWLEY, Presiding Judge.

M.M. (“the father”) appeals from a judgment terminating his parental rights to his 10-year-old daughter A.N.H. (“the child”) and granting the petition of B.L. and M.L., the child’s maternal grandparents, to adopt the child. On appeal, the father raises two issues: that he was not served with the summons and the petition to terminate his parental rights and that the juvenile court did not have subject-matter jurisdiction to grant the adoption.

On April 23, 1995, L.A.H. (“the mother”) gave birth to the child. The child’s parents were never married. On September 26, 1999, the mother left the child with the child’s maternal grandparents and never returned. On December 29, 1999, the maternal grandparents filed a petition seeking temporary custody of the child. On the same day, the Walker Juvenile Court issued an ex parte order, in case no. JU-00-001, awarding temporary custody of the child to the maternal grandparents, providing for supervised visitation by the mother and father, and further providing

“that this Order shall remain in effect until a hearing is held upon the merits of this matter and a hearing shall not be scheduled until a parent of said minor child petitions this Court to set this matter for a hearing at which time the Court shall schedule a hearing on the merits.”

Almost five years later, on November 4, 2004, in response to a request by the father, the juvenile court appointed counsel to represent the father. Then, on November 23, 2004, counsel filed on behalf of the father an answer to the maternal grandparents’ 1999 petition and moved the juvenile court to set a hearing “on the issue of standard visitation and other temporary issues [the court] deems appropriate.”

On December 6, 2004, the maternal grandparents filed a petition in the juvenile court, in a case numbered by the juvenile court clerk as “JU-00-001.0Ü,” to terminate the rights of both parents and to adopt the child. The petition was served by regular mail on the father’s counsel. The juvenile court set the matter for a hearing on April 11, 2005. At the hearing, one witness — the maternal grandmother— testified. The maternal grandmother was cross-examined by the guardian ad litem for the child and by the father’s counsel. Neither the mother nor the father appeared at the hearing. The father’s counsel informed the court that he did not know the father’s whereabouts and stated that the father had not been served. On April 11, 2005, the juvenile court ruled from the bench, granting the maternal grandparents’ petitions. The father’s counsel objected to the entry of a judgment terminating the father’s parental rights when, he said, the father had not been served. The court entered a written order on April 29, 2005, terminating the parental rights of both parents and granting the maternal grandparents’ petition to adopt the child. The father timely appealed on May 11, 2005.

I.

The father argues that the juvenile court erred by terminating his parental rights without his having been served with process pursuant to Rule 4, Ala. R. Civ. P. The maternal grandparents maintain that service was correctly accomplished by mailing the petition to the father’s counsel, pursuant to Rule 5, Ala. R. Civ. P. The issue is whether the petition for termination of parental rights was required to be served in accordance with Rule 4, Ala. R. Civ. P., governing service of the “summons or other process,” or by Rule 5, governing service of “pleadings and other papers.”

Section 26 — 18—6(b), Ala.Code 1975, provides:

“Except as otherwise provided by the Alabama Rules of Juvenile Procedure and this section, service of process [in a termination-of-parental-rights case] shall be made in accordance with the Alabama Rules of Civil Procedure.”

Rule 13, Ala. R. Juv. P., states:

“Service of summons shall be pursuant to the Alabama Rules of Civil Procedure, except as hereinafter provided:
“(A) The summons shall be served upon the child if the child is 12 or more years of age; upon the parent(s), guardian(s), or other custodian(s); and upon other persons who appear to the court to be proper or necessary parties; and it shall be served at least 24 hours before the hearing on the merits, with a copy of the petition attached.
“(B) There shall be no notice by publication of any proceeding in the juvenile court except in proceedings to terminate parental rights.
“(C) The service of the summons shall give the juvenile court jurisdiction over the persons served, but the inability to serve any party shall not deprive the court of jurisdiction to proceed.
“(D) A person who is summoned but fails to appear, without reasonable cause for the failure to appear, may be proceeded against for contempt of court.”

(Emphasis added.)

Rule 4, Ala. R. Civ. P., states, in pertinent part:

“(a) Summons or Other Process.
“(1) Issuance. Upon the filing of the complaint, or other document required to be served in the manner of an original complaint, the clerk shall forthwith issue the required summons or other process for service upon each defendant....
“(c) Upon Whom Process Served. Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:
“(1) Individual. Upon an individual, other than a minor or incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by an appointment or by law to receive service of process.”

“Under Rule 5, [Ala. R. Civ. P.], every pleading subsequent to the original complaint shall be served upon each of the parties.” State ex. rel. Van Buren County Dep’t of Soc. Servs. v. Dempsey, 600 So.2d 1019, 1023 (Ala.Civ.App.1992). However, “[wjhenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court.” Rule 5(b), Ala. R. Civ. P. Compare Rule 14, Ala. R. Juv. P., which states:

“Counsel shall enter his appearance in all court proceedings with the clerk of the court, or by appearing personally at a court hearing and advising the court that he is representing a party. Counsel who have appeared shall receive copies of all notices required by statute or rule to be given to parties, and, in such cases, notices need not be given to the parties unless the court shall so order. When counsel has entered an appearance or accepted an appointment, he shall not withdraw from the case without the consent of the court.”

(Emphasis added.)

We cannot construe the maternal grandparents’ 2004 petition to terminate the parents’ parental rights and to adopt the child as a pleading governed by Rule 5, Ala. R. Civ. P. The 2004 petition was not an additional pleading in the dependency case that began in 1999 with the filing of the maternal grandparents’ petition for temporary custody of the child. Instead, it initiated a separate action that was assigned an “.02” suffix by the juvenile court clerk and for which the payment of a new filing fee was required (and charged) by the juvenile court clerk. Cf. Farmer v. Farmer, 842 So.2d 679, 680 (Ala.Civ.App.2002)(holding that a father’s attempt to substitute a petition to modify custody for a postjudgment motion in a divorce case was “ineffective because he did not pay a filing fee, did not file the petition, and did not serve the mother”). Although the case action summary sheet for case number JU-00-001.02 reflects that the mother was served by certified mail, it reflects no attempt at service upon the father — apparently based upon the assumption that service was accomplished by serving the father’s counsel. However,

“ ‘[njeither the Alabama Code nor our Rules of Civil Procedure authorize process service on the defendant’s attorney unless performed in compliance with Rule 4(h), Singleton v. Allen, 431 So.2d 547 (Ala.Civ.App.1983), or unless there is credible evidence of the appointment of the attorney as agent for purposes of service of process, or that he is authorized by law in accordance with Rule 4(c)(1).... ’ Colvin v. Colvin, 628 So.2d 802, 803 (Ala.Civ.App.1993). Rule 4(h), Ala. R. Civ. P., provides that ‘[a] defendant or the defendant’s attorney may accept or waive service of process, provided that said acceptance or waiver is in writing and signed by the defendant and a credible witness.’ ‘“‘Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.’”’ Russell Coal [Co., Inc. v. Smith], 845 So.2d [781] at 783 [ (Ala.2002) ](quoting Northbrook Indem. [Co. v. Westgate, Ltd.], 769 So.2d [890] at 893 [ (Ala.2000)]).”

Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 52 (Ala.2003). In the present case, there was no evidence indicating either that the father’s counsel was the father’s authorized agent for service of process or that the father had signed a written waiver of service of process.

Rule 4(c)(1), Ala. R. Civ. P., requires the person serving process to locate the “individual” to be served and to deliver a copy of the process to that “individual.” Strict compliance regarding service of process is required. Aaron v. Aaron, 571 So.2d 1150, 1151 (Ala.Civ.App.1990); and Wright v. Rogers, 435 So.2d 90 (Ala.Civ.App.1983). “Failure of proper service under Rule 4 deprives a court of [personal] jurisdiction.” Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995). See also Duncan v. S.N. 907 So.2d 428, 430 (Ala.2005). Because the juvenile court did not have personal jurisdiction over the father, its judgment terminating the father’s parental rights is void.

II.

Because the juvenile court did not have subject-matter jurisdiction over the adoption petition, its judgment granting that petition is also void. See Ex parte C.L.C., 897 So.2d 234 (Ala.2004). In C.L.C., the supreme court stated:

“The ‘primary jurisdiction over adoption proceedings is in the probate court.’ B.W.C. v. A.N.M., 590 So.2d 282, 283 (Ala.Civ.App.1991). ‘[Ujnless [a] juvenile court acquire[s] jurisdiction over a petition to adopt by the “transfer” mechanism found in § 12-12-35, [Ala.] Code 1975, the juvenile court [is] without authority to grant an adoption.’ B.W.C., 590 So.2d at 283.
“Therefore, in purporting to grant the petition to adopt, the juvenile court exceeded its jurisdiction and entered only a void judgment. See State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538 (Ala.1977), Ex parte McKivett, 55 Ala. 236 (1876), and Knight v. Taylor Real Estate & Ins. Co., 38 Ala.App. 295, 83 So.2d 353 (1955).”

Ex parte C.L.C., 897 So.2d at 237-38. See also L.E.D. v. State Dep’t of Human Res., 888 So.2d 1239, 1241 (Ala.Civ.App.2004) (holding that “[a] juvenile court does not have jurisdiction over a proceeding for the adoption of a child unless the proceeding has been removed from the probate court on the motion of a party. See § 12-15-30(b)(5), Ala.Code 1975. Rather, the probate court has jurisdiction over proceedings brought under the Alabama Adoption Code. See § 26-10A-3, Ala.Code 1975.”). Moreover, the maternal grandparents have conceded the juvenile court’s lack of subject-matter jurisdiction to grant the adoption petition.

Because the juvenile court did not acquire personal jurisdiction over the father and because the juvenile court lacked subject-matter jurisdiction to grant the maternal grandparents’ adoption petition, the juvenile court’s judgment is void. “A void judgment will not support an appeal.” Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002).

APPEAL DISMISSED.

PITTMAN and MURDOCK, JJ., concur.

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

      . Although not denominated as such, this pleading was, in effect, a dependency petition alleging that the child was without parental care and control and was thereby "in need of care or supervision." See § 12-15-l(10)n., Ala.Code 1975 (defining a "dependent child”).