source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    TOWN OF ELMORE v. TOWN OF COOSADA and Elmore County.
    1030833.
    Supreme Court of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Nov. 22, 2006.

      Donald G. Madison, Montgomery, for appellant.
    Randy Myers of Hawthorne & Myers, LLC, Montgomery, for appellee Town of Coosada.
    Brian L. Justiss and John E. Enslen of Enslen, Pinkston & Courtney, LLP, Wet-umpka, for appellee Elmore County.
   SEE, Justice.

The Town of Elmore appeals the trial court’s summary judgment holding its annexation invalid because it lacked the requisite consent of the landowners whose property was being annexed. The Town of Elmore also appeals the trial court’s summary judgment dismissing its counterclaim challenging an annexation by the Town of Coosada as improper. We affirm.

Facts and Procedural History

A. The Elmore Annexation

Both the Town of Elmore and the Town of Coosada are located in Elmore County and lie in close proximity to one another. In fact, their police jurisdictions join in some locations. In June 2002, the Town of Elmore petitioned the Elmore County Commission (“the Commission”) for consent to annex into the Town of Elmore certain roadways and rights-of-way in El-more County. The request included portions of Politic Road and Mercer Road. The Commission passed a resolution at its June meeting consenting to the Town of Elmore’s annexation of portions of these two roads.

Property owners along Politic Road and Mercer Road then petitioned the Commission to annex their properties into the Town of Elmore. Pursuant to § 11-42-21, Ala.Code 1975, the Town of Elmore passed ordinance no. 2002-06, which annexed into its corporate limits those portions of Politic Road and Mercer Road that the Commission had consented to and the adjacent properties (“the Elmore annexation”). Subsequently, the Commission rescinded its resolution consenting to the annexation of portions of Politic Road and Mercer Road by the Town of Elmore.

After the Elmore annexation, the Town of Coosada petitioned the Elmore Circuit Court for a judgment declaring that annexation invalid. The Town of Coosada claimed that Elmore County did not own Politic Road and Mercer Road and that, therefore, the Commission could not give the necessary consent for their annexation. Because, the Town of Coosada argued, the Town of Elmore had not obtained the required consent from the actual property owners, its annexation of portions of Politic Road and Mercer Road and consequently of the adjoining property was invalid. The Town of Coosada also claimed that the Elmore annexation was improper because, it says, portions of Politic Road and Mercer Road that were annexed are within the Town of Coosada’s police jurisdiction and across the equidistant line between the Town of Coosada and the Town of Elmore. The Town of Coosada moved for a summary judgment.

The trial court allowed Elmore County to intervene as a plaintiff. Although the Commission had previously given its consent to the annexation, it now agreed with the Town of Coosada that the Elmore annexation was invalid. Elmore County argued to the trial court that the Town of Elmore’s action was impermissible because it had not obtained consent from the owner or owners of the land it annexed; it had obtained only the Commission’s consent, and Elmore County conceded that it did not own the land.

In response to the Town of Coosa-da’s summary-judgment motion, the Town of Elmore argued that when the Commission consented to the annexation of portions of Politic Road and Mercer Road, Elmore County owned the roadways. The Town of Elmore claimed that Elmore County had obtained that ownership by prescription, because citizens of Elmore County had been using those roadways for more than 20 years. The Town of Elmore submitted affidavits of its citizens establishing that they had used those roadways for well over the 20-year period required for dedicating a public road by prescription.

The Town of Elmore also moved for a summary judgment. It argued that the Town of Coosada’s claim was moot because, even assuming the Elmore annexation was invalid, the Town of Elmore had properly reannexed most of the same properties by an annexation proceeding in 2003. The Town of Elmore claimed that, in the 2003 annexation, it obtained consent of the owners of the property along Politic Road and Mercer Road and achieved contiguity with the corporate limits of the Town of Elmore without the use of Politic and Mercer Roads. However, the Town of Elmore acknowledged that its 2003 rean-nexation did not include two of the properties it attempted to annex in 2002.

The trial court determined that Elmore County did not own the land under Politic Road and Mercer Road and therefore could not have granted the Town of El-more the authority to annex portions of those roadways. Instead, the annexation required the consent of the fee-simple landowners who owned the property to the center of the roadways. The trial court also found:

“[The Town of Elmore] is correct in suggesting that this issue [is] now moot if the Town of Elmore has since annexed the roads correctly pursuant to Ala. Code [1975,] § 11-42-21. However, the Court has received no evidence that this has been done. Because of this, there is no genuine issue of material fact present [as to whether the property was properly annexed in-2003].”

The trial court entered a summary judgment in favor of the Town of Coosada and Elmore County, thus rendering the El-more annexation invalid.

J3. The Coosada Annexation

Before the summary judgment was entered, the Town of Elmore filed a counterclaim against the Town of Coosada, alleging that an annexation by the Town of Coosada in 1997 (“the Coosada annexation”) was invalid. The Town of Elmore alleged that the Coosada annexation was invalid because the consent the Town of Coosada had obtained for a part of the annexed property was inadequate.

The property annexed by the Town of Coosada that the Town of Elmore challenges in its counterclaim had been owned by Ell Cowling and Carrie Cowling (“the Cowling property”). After Ell’s death, Thomas P. Gilliland was appointed the personal representative of his estate. Carrie requested that Gilliland sign, along with her, a petition to annex the Cowling property into the Town of Coosada. Gilliland, as the personal representative of Ell’s estate, and Carrie signed the petition. Based on that consent, the Town of Coosa-da passed ordinance no. 97-150 annexing the Cowling property into the Town of Coosada. The Town of Elmore argued that, in order for the Town of Coosada to have properly annexed the Cowling property, it would have had to have obtained the consent of Ell’s heirs instead of the consent of the personal representative.

The Town of Coosada moved for a summary judgment; it argued that the Town of Elmore’s counterclaim was barred by the two-year limitations period in § 6-2-38, Ala.Code 1975. The Town of Coosada also argued that § 11-42-5, Ala.Code 1975, acts as a statute of repose and validates the Coosada annexation because it was completed before May 1, 1998. Additionally, the Town of Coosada argued that it had complied with § 11-42-21, Ala.Code 1975, by obtaining Gilliland’s consent to its annexation of the Cowling property.

The trial court entered a summary judgment in favor of the Town of Coosada on the Town of Elmore’s counterclaim. Thus, the trial court determined that the Town of Coosada’s annexation of the Cowling property is valid.

The Town of Elmore appeals both the trial court’s summary judgment declaring the Elmore annexation invalid and the summary judgment declaring the Coosada annexation valid.

Analysis

A. The Elmore Annexation

The Town of Elmore argues that its 2003 annexation rendered the Town of Coosada’s claim as to the Elmore annexation moot. Because mootness goes to justiciability, this Court will not consider the merits of a claim that is moot. Ferguson v. Commercial Bank, 578 So.2d 1234, 1236 (Ala.1991) (citing Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961)).

This Court has stated that in analyzing mootness we consider “ ‘whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties.’ ” Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997) (quoting 13A C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3533, at 212 (1984)). In its summary judgment, the trial court stated that the Town of Elmore “is correct in suggesting that this issue [is] now moot if the Town of Elmore has since annexed the roads correctly pursuant to Ala.Code [1975,] § 11-42-21.” Although the Town of Elmore submitted petitions and maps of the property included in the 2003 annexation, the trial court said that it had “received no evidence” showing that the 2003 annexation was valid.

The Town of Coosada sought a judgment declaring the Elmore annexation invalid. If the Town of Elmore had already properly reannexed the properties in question, then the validity of the Elmore annexation would be moot; however, as both parties point out, the 2003 annexation did not include at least two of the properties purportedly annexed in 2002. Therefore, even if the Town of Coosada’s claim is moot as to the properties the Town of Elmore says it reannexed in 2003, the Town of Coosada’s claim remains a “live controversy” regarding the property the Town of Elmore did not attempt to rean-nex in 2003. Moreover, the Town of El-more has not shown that this case is moot, because it has not shown that the 2003 annexation was valid. Thus, we cannot conclude that the Town of Coosada’s claim is moot.

The trial court found that Elmore County did not own Politic Road and Mercer Road when the Commission purported to give its consent for the Town of Elmore to annex portions of those roads in 2002. The trial court found that the Commission’s consent to the annexation did not comply with § 11-42-21, Ala.Code 1975, which requires that all owners of property must consent to the annexation of the property; therefore, the trial court concluded, the Elmore annexation is invalid. We agree.

The Town of Elmore argues that El-more County had acquired ownership of Politic Road and Mercer Road by prescription, because, it argues, citizens of Elmore County had used Politic Road and Mercer Road for more than 20 years. This Court has held that, when a road is used by the public for 20 years, it becomes a “public road by prescription.” See note 4. The Town of Coosada argues, however, that Elmore County had obtained only a prescriptive easement in the roadways, while the property owners on either side of Politic Road and Mercer Road maintained ownership of the roadways, up to their center lines. The Town of Coosada points to Purvis v. Busey, 260 Ala. 373, 377, 71 So.2d 18, 21 (1954), in which this Court stated: “The general rule is to the effect that the public acquires an easement only in the highways, the fee of the land remaining in the owner, subject to the easement.” (Citing 39 C.J.S. Highways § 136, at 1071.)

The Purvis case, cited both by the Town of Coosada and by the trial court in its summary-judgment order, stands for the proposition that a property owner on ei-thér side of a roadway retains ownership of the roadway up to the center line in spite of a prescriptive easement obtained by the public. In this case, even if the public has acquired some right by the public use of the roadways for more than 20 years, that right is only the right to use Politic Road and Mercer Road. Elmore County has not, by virtue of the public’s use, acquired ownership of the underlying roadways.

The Town of Elmore purportedly annexed the roadways in question in compliance with the requirements of § 11-42-21, Ala.Code 1975. Section 11-42-21 expressly requires that

“all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality ... shall sign and file a written petition [requesting annexation of their property] with the city clerk.... ”

As discussed above, Elmore County had only an easement in the annexed roadways; Elmore County was not the “owner” of Politic Road and Mercer Road. Therefore, Elmore County could not consent to the Elmore annexation insofar as it purported to annex portions of Politic Road and Mercer Road. Thus, the Elmore annexation was improper.

B. The Coosada Annexation

The Town of Coosada argues that the Town of Elmore lacks standing to bring its counterclaim challenging the 1997 Coosada annexation, because the Town of Elmore was not incorporated at the time of the Coosada annexation. As we stated in Marshall County Concerned Citizens v. City of Guntersville, 598 So.2d 1331, 1333 (Ala.1992):

“ ‘It is axiomatic that a party must have standing to challenge the validity of an annexation ordinance. This Court has held that “[o]ne has standing to bring his complaint into court ‘if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.’ ” ’ ”

(Quoting Johnson v. Rice, 551 So.2d 940, 947 (Ala.1989).)

The Town of Coosada concedes that “[h]ad the Town of Elmore been in existence at the time said Ordinance was passed there is no question that [the annexation] would have affected its police jurisdiction.” Town of Coosada’s brief, p. 24. However, because the Town of El-more did not exist until four months after the annexation took place, the Town of Coosada argues, the Town of Elmore could not have been injured by the annexation. We recently reiterated in Carey v. Howard, 950 So.2d 1131, 1135 (Ala.2006), that “standing turns on whether the party has suffered an actual injury and whether that injury is to a legally protected right.” In Pharmacia Corp. v. Suggs, 932 So.2d 95, 98 (Ala.2005), we explained mootness in light of standing:

“Mootness is a time dimension of standing. See In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005) (‘One commentator has described mootness as “the doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout [the litigation’s] existence (mootness).” ’).”

Therefore, to determine whether the Town of Elmore has standing to challenge the Coosada annexation, we must determine whether the Town of Elmore suffered an injury from the Coosada annexation “at the commencement of the litigation.” Pharmacia Corp., 932 So.2d at 98. The proper inquiry is not, as the Town of Coo-sada argues, whether the Town of Elmore had standing to sue at the time of the annexation, but whether it had standing when it filed its counterclaim.

The Town of Coosada concedes that the Coosada annexation “would have” affected the Town of Elmore’s interests at the time of annexation, had it been incorporated at that time. Whether the Town of Elmore was affected at the time the annexation occurred or later, after it was incorporated, those same interests presumably were affected when the Town of Elmore filed its counterclaim against the Town of Coosada. In any event, the Town of Coosada offers no evidence or argument to the contrary. Therefore, the Town of Elmore has the requisite standing to prosecute this claim.

The Town of Elmore argues that the Coosada annexation is invalid because, it argues, the consent obtained from the personal representative of Ell’s estate was insufficient under § 11-42-21, Ala.Code 1975. See note 2. Instead, the Town of Elmore argues, the Town of Coosada was required to obtain the consent of Ell’s heirs in order to properly annex the Cowling property.

In support of its argument that the personal representative of Ell’s estate could not consent to the annexation, the Town of Elmore cites §§ 43-2-843 and 43-2-844, Ala.Code 1975, which provide the powers and responsibilities of the personal representative of an estate. Section 43-2-843 enumerates the powers the personal representative may exercise without securing prior court approval. None of the transactions listed in § 43-2-843, however, includes a personal representative’s ability to consent to an annexation of real property that is included in the estate. Section 43-2-844 lists transactions the personal representative may perform only after obtaining court approval. These include the ability to “[a]cquire or dispose of an asset ... and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset.” None of the transactions listed in § 43-2-844 states that a personal representative is unable to consent to an annexation of real property belonging to the estate.

Section 43-2-839 grants the personal representative expansive powers over title to property of the estate, granting a personal representative “the same power over the title to property of the estate, subject to Sections 43-2-843 and 43-2-844, that an absolute owner would have,” and further states that “[t]his power may be exercised without notice, hearing, or order of court.” The commentary to § 43-2-839 explains:

“The power over title of an absolute owner is conceived to embrace all possible transactions, except those expressly mentioned in Sections 43-2-843 and 43-2-844, which might result in a conveyance or encumbrance of assets, or in a change of rights of possession.”

The Town of Elmore asserts that the Coosada annexation subjected the property in Ell’s estate to new zoning restrictions and that this change in zoning restrictions effected a “change of character” in the property. However, the Town of Elmore provides no authority for the proposition that zoning restrictions affect the “character of’ property; therefore, we do not consider it.

The broad language of the statute gives a personal representative the same authority to conduct the business of the estate as the decedent would have had. This authority is intended to “embrace all possible transactions” that fall outside the scope of the specific powers enumerated in § 43-2-843 (actions the personal representative may take without court approval) and § 43-2-844 (actions that require court approval). Neither the powers listed in § 43-2-843 nor the transactions requiring court approval enumerated in § 43-2-844 expressly include the power to consent to annexation of the real property of an estate; therefore, the broad powers of § 43-2-839 apply. Thus, the personal representative had the power to consent to the annexation of the estate property, and the signature of the personal representative of Ell’s estate was effective to consent to the annexation of the Cowling property into the Town of Coosada. The personal representative of Ell’s estate properly acted on behalf of Ell’s estate, the “owner” of Ell’s interest in the Cowling property, in consenting to the Coosada annexation. Therefore, the annexation fulfilled the consent requirements of § 11-42-21, Ala.Code 1975.

For the foregoing reasons, we cannot agree with the Town of Elmore that the trial court erred in entering a summary judgment in favor of the Town of Coosada.

Conclusion

The Town of Elmore failed to obtain the consent to the Elmore annexation of the owners of the property it sought to annex — the landowners along Politic Road and Mercer Road; therefore, we affirm the trial court’s summary judgment against the Town of Elmore as to that annexation. The Town of Coosada did properly obtain the required consent of the landowner to its annexation of the Cowling property; therefore, we affirm the trial court’s summary judgment in favor of the Town of Coosada as to that annexation.

AFFIRMED.

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

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice See on June 21, 2006.

      . When a municipality annexes property under § 11-42-21, Ala.Code 1975, it must annex lands "contiguous” to properties already within its corporate limits. Specifically, § 11-42-21 provides, in relevant part:
      "Whenever all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality located in tire state of Alabama and such property does not lie within the corporate limits or police jurisdiction of any other municipality, shall sign and file a written petition with the city clerk of such municipality requesting that such property or territory be annexed to the said municipality, and the governing body of such municipality adopts an ordinance assenting to the annexation of said property to such municipality, the corporate limits of said municipality shall be extended ... so as to embrace and include such property....”

      . Elmore County claims that at the June meeting of the Commission the Town of El-more stated that the annexations of portions of Politic and Mercer Roads were necessary to obtain a drainage-improvement grant. Members of the Commission also claim that they later learned that the annexation was not a prerequisite for the Town of Elmore's obtaining the grant but that the Town of Elmore actually wanted the portions of the roads to be annexed so that it could then annex other real property along Politic Road and Mercer Road. The Town of Elmore claims that it made no misrepresentations to the Commission and that it was forthcoming with its intention to also annex the properties along Politic Road and Mercer Road. Regardless, the Town of Elmore did use the annexed portions of Politic Road and Mercer Road to include in the Elmore annexation property along the roadways that would not otherwise have been contiguous to the corporate limits of the Town of Elmore. If the annexation of Politic Road and Mercer Road is invalid, then these additional properties are noncontiguous and the annexation of them is invalid.

      . As we stated in Osbom v. Champion International Corp., " '[a]n open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of 20 years becomes a public road by prescription.’ ” 892 So.2d 882, 885 (Ala.2004)(quoting Ford v. Alabama By-Products Corp., 392 So.2d 217, 218-19 (Ala. 1980)).

      . Section 11-42-5, Ala.Code 1975, provides, in pertinent part:
      “Every annexation undertaken prior to May 1, 1998, under any statutory procedure for annexation by any municipality and which the annexation procedure has been completed, notwithstanding any irregularity or defect in the procedure, is ratified and confirmed and given effect in all respects as if all provisions of law relating to the annexation proceeding had been duly and legally complied with.”

      . The Town of Coosada also argues that the Elmore annexation is invalid because it effected a “long lasso” annexation. The Town of Coosada points to our holding in City of Fultondale v. City of Birmingham, 507 So.2d 489, 491 (Ala.1987), in which we held “that the use of public road right-of-way to create contiguity is unreasonable and invalid as a matter of law.” Annexations that attempt to create contiguity by annexing through a public road right-of-way have been called “long lasso” annexations. However, because we agree with the trial court that the Elmore annexation did not comply with the consent requirements of § 11-42-21, Ala.Code 1975, we do not decide whether the Elmore annexation was impermissible as a "long lasso” annexation. See RaCON, Inc. v. Tuscaloosa County, 953 So.2d 321, 330 n. 12 (Ala.2006) ("An appellate court may affirm a trial court's judgment based on any valid ground presented in the record, whether that ground was considered, or even if it was rejected, by the trial court.” (citing General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003))).

      . It is not the duty of an appellate court to perform a party’s legal research, Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993), nor is it the responsibility of an appellate court "to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).


author: LYONS, Justice.

text:
    Ex parte BASF CORPORATION. (In re Randy Wade Bice et al. v. BASF Corporation et al.).
    1051060.
    Supreme Court of Alabama.
    Oct. 27, 2006.

      Adam K. Peck and Wynn M. Shuford of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner.
    Donald W. Stewart, Anniston, for respondents.
   LYONS, Justice.

BASF Corporation, one of the defendants in a pending toxic-tort action, has filed a petition for a writ of mandamus requesting that this Court direct the trial court to vacate its order granting the plaintiffs’ motion to compel BASF to produce documents that are under the exclusive control of its parent corporation in Germany. We grant the petition and issue the writ.

I. Factual Background and Procedural History

Approximately 1,600 plaintiffs in several consolidated cases in the Bessemer Division of the Jefferson Circuit Court allege that they suffered injuries resulting from the use of the defendants’ products containing toxins in area coal mines. On February 2, 2006, the plaintiffs served BASF with six supplemental requests for production. BASF says that those requests seek documents that it does not possess but that may be in the files of its German parent company, BASF Aktienge-sellschaft (“BASF AG”), as to which BASF is a third-tier subsidiary. In response to the requests, BASF says it explained to the plaintiffs that it did not have control or possession of the documents sought, and it submitted the affidavit testimony of its senior vice president and general counsel, David Stryker. Stryker testified that BASF and BASF AG are separate corporate entities that manage their business affairs independently and that when BASF asked BASF AG to produce the requested documents, BASF AG refused. BASF AG is not a party to this action.

The plaintiffs filed a motion to compel. The trial court granted the motion and entered the following order: “Plaintiffs’ motion to compel production of documents from Defendant BASF Corp. is granted. These documents and answers to production shall be provided within 30 days without objection or claim of privilege.” BASF then filed this petition for the writ of mandamus, asking this Court to direct the trial court to vacate its order.

II. Standard of Review

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

“ ‘[O]ur judicial system cannot afford immediate mandamus review of every discovery order.’ Ex parte Ocwen Fed. Bank, 872 So.2d 810, 813 (Ala.2003). When a petitioner seeks mandamus review of a discovery order, this Court will grant the review only after making two determinations. First, because discovery matters are within a trial court’s sound discretion, we must determine that the trial court in issuing the discovery order clearly exceeded its discretion. Second, we must ensure that the petitioner does not have an adequate remedy by appeal. 872 So.2d at 813.
“ ‘In certain exceptional cases ... review by appeal of a discovery order may be inadequate.’ 872 So.2d at 813. The four most common examples of cases in which review by appeal may be inadequate, although the list is not exhaustive, are
“ ‘(a) when a privilege is disregarded ...; (b) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party ...; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error.’
“Ocwen, 872 So.2d at 813-14.”

Ex parte Crawford Broad. Co., 904 So.2d 221, 224 (Ala.2004).

This case does not fall squarely within any one of the four examples of cases discussed by the Court in Ocwen Bank in which review by appeal would be inadequate. As we stated in Crawford Broadcasting, however, the list of examples in Ocwen is not exhaustive. This case presents a situation in which a discovery order compels the production of documents that a party contends it does not possess and over which it contends it cannot obtain control, thereby making compliance with the trial court’s order compelling production impossible. Therefore, review by appeal would be inadequate in this case, and mandamus review is appropriate.

III. Analysis

BASF first argues that the trial court’s order disregards the Alabama Rules of Civil Procedure. Rule 34, Ala. R. Civ. P., allows a court to order a party to produce documents “which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served.” BASF asserts that as an independent corporate subsidiary of BASF AG it does not have control over the documents sought by the supplemental discovery requests and that the plaintiffs cannot show that BASF has possession, custody, or control of those documents. According to the United States Court of Appeals for the Eleventh Circuit, “control is the test with regard to the production of documents” under Rule 34, Fed.R.Civ.P. Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984). The Eleventh Circuit has defined control “not only as possession, but as the legal right to obtain the documents requested upon demand.” 736 F.2d at 653. Other federal courts of appeals have applied a similar definition of control. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir.1999); Cochran Consulting, Inc. v. Uwatec USA, Inc., 102 F.3d 1224, 1229-30 (Fed.Cir.1996); Gerling Int’l Ins. Co. v. Commissioner, 839 F.2d 131, 140 (3d Cir.1988).

The plaintiffs argue that BASF could have obtained control over the requested documents, relying upon the deposition testimony of BASF employee Bill Robert. Robert testified as follows:

“Q. ... Could you call somebody, being BASF America, whatever' — however, the designation you wanted, BASF over here in the United States — called somebody in the German sister corporation and said, you know, we are interested over here in finding out what these presentations by Dr. Botham — and what the follow-up proposals were and all that stuff — is it your expectation that if you made that call someone over there would perform a search and find out whether those documents were there and if they existed send them to you?
“A. Yes, I think that probably was the case.
“Q. Well, do you think — I’m talking about whether that call went out today from you.
“A. That would — First, I would have to find out who to call,. because I don’t know who’s in that department. It would take me awhile to try to find this. “Q. But your expectation would be that they would—
“A. If they were there.
“Q. They would oblige and forward the documents?
“A. Yes.”

Contrary to Robert’s “expectation” that BASF AG would be willing to produce the documents, Stryker, testified that he had asked BASF AG in a letter “to consider making certain documents requested by plaintiffs in this case, if any, available in discovery through BASF.” BASF AG replied that it was not willing to provide documents to Stryker and that it complied with discovery requests from outside Germany only .if the requests were made in accordance with the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361. In light of BASF AG’s actual refusal to provide the documents when requested to do so by Stryker, we conclude that the plaintiffs’ reliance upon Robert’s testimony that he expected that BASF AG would obhge and forward the documents if asked is insufficient evidence of “the legal right to obtain the documents requested upon demand.” Searock v. Stripling, 736 F.2d at 653.

BASF next argues that the trial court’s order disregards the basic rule of corporate law that a subsidiary is legally distinct from its parent corporation. BASF maintains that a court cannot ignore separate corporate status unless the party seeking to compel production proves that the subsidiary corporation is inadequately capitalized, that it was conceived and is operated for a fraudulent purpose, or that it is being operated as the alter ego of an entity with corporate control. See M & M Wholesale Florist, Inc. v. Emmons, 600 So.2d 998 (Ala.1992), and First Health, Inc. v. Blanton, 585 So.2d 1331 (Ala.1991). BASF says that the plaintiffs did not allege any of these circumstances and that the trial court did not find any of them to exist here. The only evidence before the trial court concerning the corporate relationship of BASF and BASF AG is Stryker’s affidavit, in which he testified as follows:

“2. BASF Corporation is a Delaware corporation with its principal place of business in New Jersey. During all times relevant to this litigation, BASF Corporation was and is a wholly-owned subsidiary of BASF Americas Corporation. BASF Americas Corporation is a Delaware Corporation with its principal place of business in New Jersey. It is a wholly-owned subsidiary of BASFIN Corporation, which is also a Delaware corporation. None of the shares of BASF Corporation, BASF Americas Corporation and BASFIN Corporation are publicly traded.
“3. BASF Aktiengesellschaft (‘BASF AG’) is a German corporation, headquartered in Ludwigshafen, Germany, and it owns 100% of the stock of BASFIN Corporation. The stock of BASF AG is traded publicly in Germany and in certain other countries outside the United States and its American Depository Receipts are listed on the New York Stock Exchange for trading in the United States. Its business affairs are directed by a Board of Executive Directors, based in Germany and operating pursuant to German corporate law.
“4. BASF Corporation manages its own business affairs in the United States, and those affairs are governed by Delaware corporate law and overseen by BASF Corporation’s own Board of Directors and a committee of its senior executive employees called the North American Executive Committee (‘NAEC’). Meetings of the NAEC and the BASF Corporation Board of Directors are held at different times and places from those of the Board of Executive Directors of BASF AG, and minutes of those meetings are maintained separate and apart from any corporate record of BASF AG. The NAEC and the BASF Corporation Board of Directors are separate from BASF AG’s Board of Executive Directors and are not controlled by that Board.
“5. BASF Corporation’s Chairman and CEO, together with the NAEC and other officers of the Corporation, including the Presidents of its operating divisions, are responsible for the day-to-day operations of BASF Corporation. All of the officers of BASF Corporation are also employees of BASF Corporation. BASF Corporation maintains offices, corporate, business and financial records and manufacturing, research, sales and distribution facilities separate from the operations, records and facilities of BASF AG.
“6. BASF Corporation is financially viable independent of BASF AG. It is fully and adequately capitalized, pays its own debts and is responsible for its other obligations, and issues its own commercial paper. BASF Corporation pays its own operating expenses, and although it does obtain inter-company financing from time to time from financial subsidiaries of BASF AG, such loans are provided on eommercially-reasonable terms pursuant to written agreements. BASF Corporation maintains its own books and records, files its own United States tax return, and observes all corporate formalities.
“7. BASF Corporation maintains a separate payroll for its approximately 8,000 employees and provides its own benefit plans and a fully-qualified pension program for such employees, independent of any support from BASF AG. BASF Corporation has its own sales force and sells to its own customers.”

The plaintiffs do not dispute BASF’s corporate status, but merely note the liberal construction to be given the rules of discovery in order to “foster broad discovery.” See Ex parte CUNA Mut. Ins. Soc’y, 822 So.2d 379, 383 (Ala.2001). Relying upon several cases decided by the United States District Courts in New York (two of which are not reported in F.Supp.2d), the plaintiffs argue that a party is considered to have control of a document for discovery purposes if the party has access to the document and can obtain the document for its own use to defend itself in litigation. See New York ex rel. Broadman v. National R.R. Passenger Coip., 233 F.R.D. 259 (N.D.N.Y.2006) (the question whether a party has control of documents sought in discovery is not limited to whether the party has a legal right to the documents, but whether it has access to and the ability to obtain the documents); Ssangyong Corp. v. Vida Shoes Int'l Inc., No. 03 Civ. 5014 (S.D.N.Y. May 20, 2004) (not reported in F.Supp.2d) (finding defendant’s assertion that foreign affiliate would refuse to provide documents necessary to assist defendant in litigation inconceivable); Hunter Douglas, Inc. v. Comfortex Corp., No. Civ. A. M8-85 (S.D.N.Y. January 11, 1999) (not reported in F.Supp.2d) (“[I]f the nature of the relationship between the parent and its affiliate is such that the affiliate can obtain documents from its foreign parent to assist itself in litigation, it must produce them for discovery purposes.”); Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918 (S.D.N.Y.1984) (because documents sought from defendant’s foreign affiliate related to product defendant worked with daily, it was inconceivable that defendant would not have access to and ability to obtain documents). The plaintiffs maintain that BASF never denied that it could obtain the requested documents from BASF AG if it needed the documents to prepare its defense in these cases and that BASF in fact produced three documents that were authored by BASF AG. Because BASF is “able” to obtain the documents, the plaintiffs argue, under applicable law BASF has control of the documents sufficient to require BASF to produce the documents.

In response, BASF first asserts that the three documents it produced to the plaintiffs were not obtained from BASF AG but, instead, were obtained from an industry trade association, the International Isocyanate Institute, Inc. Copies of these documents have been provided to this Court as exhibits in this petition for the writ of mandamus. It is clear from those exhibits that although the documents in question were authored by BASF AG, they were distributed by the Institute. Therefore, BASF’s production of the three documents it obtained from the Institute does not demonstrate its control over any documents solely in the possession of BASF AG.

The cases relied upon by the plaintiffs can be distinguished. In Boardman, the defendant, Amtrak, sought the production of documents from a state agency that was a party to the action; the documents were in the possession of another state agency that was not a party to the action. The trial court held that the party agency had no right or ability to obtain documents from another agency, and, therefore, that Amtrak did not prove that the party agency had control over the documents sought. In Ssangyong, an unpublished opinion of a magistrate judge, the plaintiff sought documents from the New York branch of a bank headquartered in Hong Kong. The trial court concluded that the headquarters and the branch bank were a single corporate entity. When the bank’s counsel testified that the Hong Kong headquarters not only would refuse to provide information that would assist its New York branch in its defense, but also would refuse to provide requested customer information, the magistrate judge found this assertion to be inconceivable and ordered the production of the documents. In Hunter Douglas, also an unpublished opinion, the plaintiff alleged that the documents it sought flowed freely between the United States subsidiary and its overseas affiliate. Counsel for the company testified that if the United States subsidiary requested documents necessary to defend itself in litigation, the overseas affiliate would produce them, evidence stronger than the mere “expectation” of the BASF employee in this proceeding. Because the evidence showed that the defendant could obtain the documents sought for its own use, the trial court ordered them produced. In Cooper Industries, the plaintiffs sued as a result of fire damage to an aircraft sold by the defendant. They sought production of service manuals, blueprints, and other documents the defendant said were in the possession of its British affiliate. The defendant was wholly owned by the affiliate, serving as its distributor in the United States. The court held that because the documents sought by the plaintiffs related to the planes the defendant worked with every day, it was inconceivable that the defendant would not have access to the documents and the ability to obtain them if needed.

There is simply no evidence in the record before us at this stage of the proceedings to support the plaintiffs’ assertion that BASF could obtain the requested documents for itself if it needed the documents to defend itself in this litigation. BASF has not asked for the records for its own benefit; therefore, the situation wherein BASF AG might agree to produce documents to BASF but would refuse to produce documents to the plaintiffs has not yet occurred. BASF points out that the product at issue in these cases was designed and manufactured by BASF in the United States, as opposed to a product that was manufactured by BASF AG and then distributed by BASF in the United States. Moreover, BASF says, the documents the plaintiffs seek were not originated at BASF and subsequently transferred to BASF AG; this is not, therefore, an instance where a party attempts to shield documents from discovery by storing them with a foreign affiliate.

Based upon the evidence that BASF and BASF AG are separate corporate entities, the evidence that BASF AG refused to produce the documents to BASF when requested to do so, and the lack of any evidence indicating that BASF AG would in the future produce or has already produced documents for BASF’s use but not for use by the plaintiffs, we conclude that BASF does not have control over the documents sought, which are in the sole possession of BASF AG. Therefore, the trial court exceeded its discretion when it granted the motion to compel and ordered BASF to produce documents in the exclusive control of BASF AG.

IV. Conclusion

For the reasons previously stated, we grant the petition for a writ of mandamus and direct the trial court to vacate its order granting the plaintiffs’ motion to compel.

PETITION GRANTED; WRIT ISSUED.

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

      . This appeal arises from one of those cases.

      . Federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003).

      . Because we conclude that BASF does not have control over the documents sought by the plaintiffs, we pretermit discussion of BASF’s argument that the trial court’s order disregards the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, by allowing the plaintiffs to obtain discovery from a foreign corporation without following the procedures set forth in that treaty-


author: NABERS, Chief Justice.

text:
    HILLER INVESTMENTS INCORPORATED v. INSULTECH GROUP, INC.
    1051024.
    Supreme Court of Alabama.
    Nov. 3, 2006.

      C. Frederick Robinson, Mobile, for appellant.
    William E. Shreve, Jr., and Allen E. Graham of Lyons, Pipes & Cook, P.C., Mobile, for appellee.
   NABERS, Chief Justice.

Hiller Investments Incorporated (“Hil-ler”) appeals the trial court’s order dismissing Hiller’s breach-of-contract action against Insultech Group, Inc., for lack of in personam jurisdiction. For the reasons stated below, we reverse that judgment for Insultech.

I. Facts and Procedural History

Insultech, a Florida corporation headquartered in Plant City, Florida, contracted in February 2004 with Titan Cruise Lines to renovate a ship named the Ocean Jewel (“the project”). Before it entered into that contract, Insultech had sent Hil-ler Systems, Inc. (“Hiller Systems”), a wholly owned subsidiary of Hiller, an email message requesting a quote for an arrangement under which Hiller Systems would subcontract to install deck covering on the ship (“the subcontract arrangement”). Both Hiller Systems and Hiller are Alabama corporations that are based in Mobile.

Insultech awarded the deck-covering work to Hiller Systems. Hiller Systems installed the deck covering during 2004 while the ship was in port in locations outside Alabama. During the first half of 2004, representatives of Insultech and Hiller Systems exchanged 14 written communications (by e-mail, facsimile, or correspondence) concerning the subcontract arrangement and the scope of the work. The representatives of Hiller Systems who received or sent these 14 communications were in Alabama when the communications were transmitted. None of the Insultech representatives who received or transmitted those 14 communications was in Alabama when the communications were sent. The subcontract arrangement was not documented by a written contract simultaneously signed by the parties, but by purchase-order and invoice forms (collectively “the purchase order”). The purchase order did not contain a choice-of-law provision or a venue-selection clause for resolution of disputes arising under the subcontract arrangement.

St. Petersburg, Florida, was the home port for the Ocean Jewel. Hiller Systems performed all of the work under the subcontract arrangement outside Alabama. During the latter part of 2004, a dispute arose between Insultech and Hiller Systems concerning the total amount Insul-tech owed for the deck-covering work. Nineteen written communications (14 of which were e-mails) were transmitted between representatives of Hiller Systems and Insultech from October I through December 15, 2004; most of these 19 communications concerned the dispute. The representatives of Hiller Systems who received or sent these 19 communications were in Alabama when the communications were transmitted. Each Insultech representative who received or transmitted these communications was outside Alabama when they were sent.

After negotiations to settle the dispute stalled, Daniel Romanchuk, the chief operating officer of Hiller, intervened in December 2004 to attempt to break that impasse. Romanchuk participated in five telephone conversations with Bob Doyle (Insulteeh’s Florida-based representative for the project) between December 15, 2004, and late January 2005 concerning a possible settlement. Romanchuk was based in Mobile at the time of these telephone conversations. According to Hiller, Romanchuk and Doyle agreed in late January 2005 that the total value of Hiller Systems’ work under the subcontract arrangement was approximately $590,000. At that time, Doyle advised Romanchuk that Insultech could not make a lump-sum payment of the then outstanding balance of approximately $221,000 owed for Hiller Systems’ work, and inquired whether Hil-ler would agree to an installment arrangement to retire that debt. Following additional exchanges between Romanchuk and Doyle by telephone and e-mail, Roman-chuk sent Insultech a promissory note (and an accompanying letter) dated February 8, 2005, indicating that at four designated times during 2005 Insultech would pay Hiller equal installments of $56,054.25, which included interest of 5.25% per an-num (“the note”). The note also provided that, by executing that instrument, Insul-tech was

“acknowledging] that it was doing business in Alabama, ... subjecting itself to the jurisdiction of the Courts of Alabama, ... agreeing] that resolution of any matter arising out of this Promissory Note shall be litigated in the Circuit Court in the County of Mobile, Alabama and agreeing] that this will be the proper jurisdiction and venue for said issues to be resolved.”

Hiller contends that the purpose of the note was to memorialize the financial terms of the settlement of the dispute. According to Insultech, Romanchuk’s transmittal of the note to Doyle in early February 2005 was a counteroffer; Insul-tech never executed the note. Hiller asserts that its failure to secure Insultech’s signature on the note was an administrative oversight. Doyle was not in Alabama at any time during the settlement negotiations and communications with Roman-chuk.

During 2005 Insulteeh wired to Hiller’s account in Alabama the first three of the four installment payments of $56,054.25 contemplated in the note. That note stated that the final installment was payable on December 1, 2005. Insulteeh did not make the December 1 payment, and on December 21, 2005, Hiller sued Insulteeh in the Mobile Circuit Court to recover $56,054.25 (plus prejudgment interest, attorney fees, and costs), alleging breach of contract arising from Insultech’s breach of the purported settlement agreement.

On February 6, 2006, Insulteeh appeared in the action to contest personal jurisdiction. Insulteeh filed a motion to dismiss pursuant to Rule 12(b)(2), Ala. R. Civ. P., supported by an affidavit; the affidavit reflected the following facts:

1. Hiller Systems performed all the work under the subcontract arrangement outside Alabama.
2. No representative of Insulteeh traveled to Alabama or met with representatives of Hiller or Hiller Systems in Alabama to discuss or negotiate the subcontract, the progress of the deck-covering work, or the settlement of the dispute.
3. All communications relating to the subcontract arrangement or the dispute that were generated by, or directed to, Insultech’s representatives were initiated or received by those representatives at locations outside Alabama.
4. The purchase order did not contain a provision selecting Alabama as the venue for the resolution of disputes arising under the subcontract arrangement.
5. Insulteeh did not sign the note, which named Alabama as the venue for any litigation “arising out of’ the note, or otherwise consent to the jurisdiction of the courts of Alabama.
6. Insulteeh was not qualified to do business in Alabama. Except for a short-term project in 2000, Insulteeh had not performed services in Alabama before its dealings with Hiller and Hiller Systems.
7. Insulteeh did not own or lease property, have employees, advertise, pay taxes, maintain bank accounts, have any ongoing relationships with Alabama-based firms, or otherwise conduct business in Alabama.

Hiller opposed Insultech’s motion to dismiss and submitted multiple affidavits detailing the dealings between the parties from December 2003 through December 2005. After considering the briefs and argument of counsel, the trial court granted Insultech’s Rule 12(b)(2) motion on March 15, 2006, and dismissed Hiller’s action for lack of personal jurisdiction. Hil-ler appealed.

II.Standard of Review

A de novo standard applies when an appellate court reviews a trial court’s judgment on a motion to dismiss for lack of personal jurisdiction. Elliott v. Van Kleef 830 So.2d 726, 729 (Ala.2002). Moreover, the plaintiff carries the burden of proving the trial court’s personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229 (Ala.2004).

III.Analysis

Rule 4.2(b), Ala. R. Civ. P., Alabama’s “long-arm” provision, governs whether an Alabama court may exercise personal jurisdiction over an out-of-state defendant. In pertinent part, that rule states:

“(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ”

This rule extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions. When applying Rule 4.2(b), this Court has interpreted the due process guaranteed under the Alabama Constitution as coextensive with that guaranteed under the United States Constitution. See Elliott, 830 So.2d at 730.

The analytical framework applicable here was thoroughly described in Elliott:

“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The sufficiency of a party’s contacts are assessed as follows:
“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp., 471 U.S. at 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ Duke v. Young, 496 So.2d 37, 39 (Ala.1986). ...
“In the case of either general in per-sonam jurisdiction or specific in person-am jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. 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.” ’ Burger King, 471 U.S. at 475, 105 S.Ct. 2174, quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
“Only after such minimum contacts have been established does a court then consider those contacts in the light of other factors — such as the burden on the defendant of litigating in the forum state and the forum state’s interest in adjudicating the dispute, Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174 — to determine whether the exercise of personal jurisdiction over the nonresident defendant comports with ‘ “traditional notions of fair play and substantial justice.” ’ Brooks v. Inlow, 453 So.2d 349, 351 (Ala.1984), quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154.”

830 So.2d at 730-31.

The threshold question presented here is whether Insulteeh has minimum contacts with Alabama so as to allow Insul-tech to be sued in Alabama by Hiller. Questions of personal jurisdiction are necessarily case specific. There is no evidence indicating that Insulteeh engaged in such “continuous and systematic” activities in Alabama so as to confer general in personam jurisdiction. Elliott, 830 So.2d at 730. Not considering the subcontract arrangement or the purported settlement agreement, Insulteeh did not, except for one short-term project completed in 2000, perform services, advertise, retain employees, or otherwise conduct business in Alabama at the time of, or before, its dispute with Hiller.

We thus consider specific in per-sonam jurisdiction and examine whether Insultech’s contacts with Alabama relating to Hiller’s breach-of-contract claim are of such nature that Insulteeh could have reasonably anticipated being sued in Alabama. The following links exist between Insul-tech’s activities, the State of Alabama, and Hiller’s breach-of-contract action:

1.In December 2003, Insulteeh sent an e-mail to the offices of Hiller Systems in Mobile requesting a quote for deck-covering work on the Ocean Jewel. This contact initiated negotiations that resulted in Insultech’s selection of Hiller Systems to perform the work under a subcontract arrangement.
2. During 2004, representatives of Hil-ler Systems and Insulteeh exchanged 33 written communications (ie., e-mails, facsimiles, and correspondence) concerning the subcontract arrangement and the dispute. When those communications occurred, the affected representatives of Hiller Systems were in Alabama and Insultech’s representatives were outside this State.
3. During 2004, Insulteeh made progress payments for the subcontract work to Hiller Systems in Alabama.
4. During the settlement negotiations, Romanchuk, an Alabama-based representative for Hiller, had five telephone conversations and sent documents to Doyle (Insultech’s Florida-based representative) concerning the dispute.
5. After the parties agreed that Insul-tech owed approximately $221,000 for the subcontract work, Doyle advised Ro-manchuk early in 2005 that Insulteeh could not pay that balance in one lump sum and requested that Hiller accept installment payments and finance that debt. Romanchuk was in Alabama and Doyle was outside Alabama when those settlement discussions occurred. The agreement that forms the basis of Hil-ler’s breach-of-contract claim resulted from these negotiations.
6. During 2005, Insulteeh wired three installment payments of $56,054.25 each to Hiller in Alabama.

This Court has interpreted the reach of Alabama’s long-arm rule in two cases that involved facts similar to those presented here. In both Steel Processors, Inc. v. Sue’s Pumps, Inc., 622 So.2d 910 (Ala. 1993), and Ex parte Phase III Construction, Inc., 723 So.2d 1263 (Ala.1998), Alabama-based companies that supplied goods or services outside Alabama sued out-of-state defendants in Alabama to recover compensation for their work.

In Steel Processors, the Alabama-based claimant had supplied materials and labor to repair a barge in Florida. In that case, the contacts between the nonresident defendant and Alabama were (a) a series of interstate telephone calls concerning the barge project, and (b) partial payments by the defendant into Alabama for the work. 622 So.2d at 914. Based on those facts, the Court in Steel Processors held that the defendant’s contacts with Alabama were insufficient for an Alabama court to exercise in personam jurisdiction over the out-of-state defendant. 622 So.2d at 914.

The Steel Processors Court applied several principles that are pertinent here. That Court noted that “[fjederal courts have held that, in the absence of other factors tending to support jurisdiction, ‘a mere one-time purchaser of goods from a seller in a forum state cannot be constitutionally subject to the exercise of personal jurisdiction by the courts of the forum state.’ ” 622 So.2d at 913 (quoting Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055, 1059 (11th Cir.1986), citing Owen of Georgia, Inc. v. Blitman, 462 F.2d 603 (5th Cir.1972)). Addressing the interstate communications and payments by an out-of-state defendant into Alabama, the Steel Processors Court observed that “ ‘[t]he use of interstate facilities (telephone, the mail), [and] the making of payments in the forum state ... are secondary or ancillary factors and cannot alone provide the “minimum contacts” required by due process.’ ” Id. (quoting Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir. 1982)). Moreover, the claimant in Steel Processors contended that the out-of-state defendant should have foreseen that it would be sued in Alabama because it entered into a contract with knowledge that the subject goods would be fabricated in Alabama. In rejecting that argument, the Steel Processors Court reasoned that “[t]he purchase of goods fabricated in a forum state, and of services provided by a resident corporation of a forum state, does not alone provide the requisite ‘minimum contacts’ for exercise of personal jurisdiction within the bounds of due process.” 622 So.2d at 913-14.

In Ex parte Phase III Construction, Inc., Collins Signs, Inc., an Alabama-based manufacturer, sued Phase III Construction, Inc., a Virginia firm, in Alabama based on Phase Ill’s failure to pay for signs that Collins had manufactured in Alabama and installed in Virginia. Phase III contended that it should not be required to litigate with Collins in Alabama because of the alleged insufficiency of its contacts with this State. As in Steel Processors, the out-of-state defendant in Phase III had engaged in a series of interstate communications (by telephone, facsimile, and correspondence) with representatives of Collins concerning the disputed project and had sent a partial payment to Collins for the work. 723 So.2d at 1265. Additionally, the disputed transaction in Phase III evolved after Collins received an unsolicited request from Phase III for Collins to supply the signs. Id. Relying on the solicitation by Phase III made to a company in Alabama, this Court held that it was “fair and reasonable to invoke ... jurisdiction [over Phase III in Alabama]” because “Phase III initiated its contacts with this State solely for its own profit, [thereby] availing itself of the privilege of conducting business here.” 723 So.2d at 1265.

Justice Lyons concurred in the result in Phase III and authored a special writing, which two other Justices joined. He reasoned that, although Phase III had not engaged in such “continuous and systematic” activities that are attendant to general in personam jurisdiction, minimum contacts existed between the activities of Phase III, Alabama, and Collins’s cause of action to confer specific in personam jurisdiction. 723 So.2d at 1266. Justice Lyons noted the holdings by the Steel Processors Court but distinguished Steel Processors because in Phase III there were “ ‘other factors tending to support jurisdiction’ ”— notably Phase Ill’s unsolicited contact of Collins to install the signs. 723 So.2d at 1266. His special writing cited with approval the United States Supreme Court’s holding in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), that “a defendant’s one-time solicitation of business in the forum state is sufficient grounds for the exercise of personal jurisdiction over the defendant.” 723 So.2d at 1266.

Insultech relies extensively on Steel Processors. Hiller argues that this Court’s decision in Phase III should control. An important difference between Phase III and Steel Processors is that in Phase III the out-of-state defendant initiated the contact with the forum state, whereas the out-of-state defendant in Steel Processors did not. Steel Processors, 622 So.2d at 914.

The facts here are closely aligned with those of Phase III. As in Phase III, Insul-tech initiated the contacts with the forum state on which Hiller’s cause of action is based. Insultech did so on two occasions. The first occurred in December 2003 when, in an e-mail message from Insultech to Hiller Systems in Mobile, Insultech requested a quote from Hiller Systems for the deck-covering work. Subsequently, in early 2005, Doyle (Insultech’s representative) requested that Hiller finance the balance then owed for the deck-covering work performed by Hiller Systems.

Insultech makes two arguments to attempt to distinguish Phase III. First, the Alabama-based claimants in both Phase III and Steel Processors manufactured goods in Alabama that were used in other states. Insultech attempts to distinguish Phase III on the basis that Hiller did not present evidence indicating that the materials installed on the project were manufactured in Alabama. . Second, Insultech argues that the initiation of the transaction through a contact by the defendant with the forum state is not a controlling consideration. Insultech argues that, if this Court considers all factors (including the fact that the work under the subcontract arrangement was performed outside Alabama), Insultech’s contacts with Alabama are insufficient to confer jurisdiction.

We do not decide this case on the basis of a single factor, whether it be how the transaction was initiated or where the work was performed. Certainly, Insul-tech’s entry into this State by e-mail to begin a business relationship with Hiller Systems and then to solicit a financial arrangement from Hiller for amounts Insul-tech owed is highly significant. In our inquiry as to whether there exist minimum contacts to satisfy the requirements of due process, we consider all of the following: (a) that Insulteeh twice initiated contacts in Alabama for a business transaction; (b) that Insulteeh negotiated transactions with representatives of Hiller and Hiller Systems, who were in Alabama; (c) that Insul-tech performed its obligations under the subcontract arrangement and the purported settlement agreement by making payments to Hiller in Alabama; and (d) that there were approximately 40 interstate communications with representatives of Hiller and Hiller Systems in Alabama concerning the subject transactions.

Considering all of these factors, we hold that Insulteeh had sufficient contacts with Alabama to satisfy the requirements of constitutional due process and Rule 4.2(b), Ala. R. Civ. P. Given these factors, Insul-tech can hardly assert that it could not have reasonably anticipated being haled into court in Alabama if Hiller was harmed in this State as a result of the transaction. Our conclusion is in accord with the principle stated in the Committee Comments to 1977 Complete Revision to Rule 4.2 that, ‘[i]f there is a minimum of contacts [with Alabama], and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction.’” Quoting 2 J. Moore, Federal Practice, Par. 4.25 at 1171-73 (2d ed.1953).

Having found minimum contacts between Insultech’s activities and this State that form the basis of Hiller’s cause of action, the next consideration is “whether subjecting [the nonresident defendant] to Alabama’s jurisdiction would violate traditional notions of ‘fair play and substantial justice.’ ” Leithead v. Banyan Corp., 926 So.2d 1025, 1032 (Ala.2005) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). We do not analyze those notions here, however, because Insulteeh has not argued on appeal that litigation in Alabama would be unfair or burdensome.

IV. Conclusion

For the reasons stated above, the trial court erred when it dismissed Hiller’s breach-of-contraet action against Insul-teeh. Because Insulteeh purposefully availed itself of the privilege of conducting business in Alabama, the Mobile Circuit Court has specific in personam jurisdiction over Insulteeh as to Hiller’s claim. The judgment dismissing Insulteeh is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . Insultech's invitation to Hiller Systems to bid indicated that the deck-covering work would be performed in Florida.

      . The trial court's order did not specify the reasons for the dismissal.

      . The Court noted that "[t]he fabrication of materials in Alabama by Steel Processors represents 'unilateral activity of those who claim some relationship with a nonresident defendant [and] cannot [alone] satisfy the requirement of contact with the forum State.’ ” 622 So.2d at 914 n. 2 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).

      . The cases cited by Insultech in support of this proposition include: Torco Oil Co. v. Innovative Thermal Corp., 730 F.Supp. 126, 130 (N.D.Ill.1989) (contact by defendant "made solely through telephone calls and mail communication ... is a significant, but not controlling, factor"); and Bartusch v. Oregon State Bd. of Higher Educ., 131 Wash.App. 298, 307, 126 P.3d 840, 844 (2006) (which party initiated contact is "merely relevant and not determinative”).


author: STUART, Justice.

text:
    Ex parte Dr. Ed RICHARDSON, individually and as interim president of Auburn University, et al. (In re: Dwight Carlisle, individually, as a taxpayer and citizen of the State of Alabama and as a trustee of Auburn University v. Dr. Ed Richardson, individually and as interim president of Auburn University, et al.).
    1051474.
    Supreme Court of Alabama.
    Nov. 9, 2006.

      David R. Boyd and Dorman Walker of Balch & Bingham, LLP, Montgomery; Ed R. Haden of Balch & Bingham, LLP; Birmingham; Phillip E. Adams, Jr., of Adams, Umbach, Davidson & White, LLP, Opeli-ka; and Lee F. Armstrong, general counsel, Auburn University, for petitioners.
    Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur; and Robert A. Huf-faker of Rushton, Stakely, Johnston & Garrett, Montgomery, for respondent.
   STUART, Justice.

Dr. Ed Richardson, interim president of Auburn University; John G. Blackwell, Byron P. Franklin, Samuel L. Ginn, Robert E. Lowder, Charles D. McCrary, Ear-Ion C. McWhorter, John C.H. Miller, Jr., Sarah B. Newton, James W. Rane, Paul J. Spina, Jr., and Virginia N. Thompson, current members of the Auburn University Board of Trustees (“the Board”); and Charles E. Ball, a former member of the Board (hereinafter referred to collectively as “the petitioners”), petition this Court for a writ of mandamus directing the trial court to dismiss the declaratory-judgment action filed by Dwight Carlisle, a. current member of .the Board, for lack of subject-matter jurisdiction. We grant the petition and issue the writ.

Facts and History

On February 10, 2004, the Alabama Senate confirmed Ball’s appointment to the Board as a member from the Fifth Congressional District. Ball succeeded Lowell Barron as a member of the Board; Barron had succeeded Mike McCartney. A question arose as to whether Ball was appointed to complete Barron’s “unexpired term” or whether he was appointed for a full seven-year term. According to the petitioners, the answer to this question depends on whether Barron’s term ended when he left the Board in 2003, or whether he left an unexpired term to be filled. This analysis depends, in turn, on when Barron’s 12-year term began, which requires consideration of the service term of Barron’s predecessor, McCartney.

A dispute arose because McCartney, whose term expired in 1991, had served a holdover period and Barron was confirmed in February 1993 for a 12-year term. Thus, under one view, Barron’s 12-year term began in 1993 and had not expired when he left the Board in 2003, and Ball’s appointment and confirmation in February 2004 was to fill the remainder of Barron’s unexpired term. Under the other view, Barron’s 12-year term began in 1991, when McCartney’s 12-year term expired, and his term thus expired in 2003. Under the second view, Ball’s appointment was not to fill an unexpired term, but was for a full seven-year term.

In October 2005, the attorney general, in response to a request by Dr. Richardson, issued an opinion addressing the term lengths of the Board members. The attorney general refused to express an opinion on the term length for each Board member, but he did offer an opinion as to what he deemed to be a correct statement of the law to be applied in making such a determination. See Op. Att’y Gen. 2006-002 (Oct. 7, 2005). The attorney general stated that under the holding of James v. Langford, 695 So.2d 1158 (Ala.1997), and the “plain language” of Amendment No. 161, “the [12-year] term of a Board member appointed pursuant to Amendment 161 commences on the date the Board member is confirmed by the Senate, and not before,” and a Board member may continue to serve, indefinitely, in a holdover situation until his or her successor is confirmed. The opinion recognized that Amendment No. 161 was amended in 2000 by Amendment No. 670, under which several current members of the Board, including Carlisle, were appointed. Amendment No. 670 reduces from 12 years to 7 years a board member’s term and specifically limits an outgoing Board member’s “holdover” service to one year. Additionally, according to the attorney general’s interpretation of Amendment No. 670, “the term of a member of the Board appointed pursuant to Amendment 670 commences on the date the member is confirmed by the Senate.”

After receiving the attorney general’s opinion, Auburn University, acting by and through Dr. Richardson and/or the Board, determined that Barron, who was appointed pursuant to Amendment No. 161, was serving a 12-year term that began in 1993 and that that term had not expired when Barron left the Board in 2003. Consequently, Auburn University concluded that Ball’s confirmation in 2004 was to fill the remainder of Barron’s unexpired term, and not for a full seven-year term. When Barron’s unexpired term ended in 2005, no successor for Ball had been confirmed. Thus, pursuant to Amendment No. 670, Ball was authorized to serve a one-year holdover term, which expired on February 10, 2006. Auburn University concluded that on that date Ball’s service on the Board had ended and that the seat on the Board for the Fifth Congressional District was vacant. Ball agreed with the statement of law in the opinion of the attorney general and Auburn University’s application of that statement of the law to his appointment and term length, and he voluntarily ceased serving as a Board member on February 9, 2006.

As provided in Amendment No. 670, Governor Bob Riley, as chairman of the appointing committee for the Board, called a meeting of the appointing committee for the purpose of filling the slot left vacant by Ball’s resignation. Before the appointing committee could meet, however, Carlisle filed a complaint in the Lee Circuit Court seeking a declaratory judgment and in-junctive relief. The complaint named as defendants Governor Riley, who is the president of the Board and the chairman of the appointing committee, the petitioners, and two additional individuals who serve on the appointing committee but are not members of the Board. Carlisle’s complaint sought a declaration that Ball’s term had not expired and that Ball is entitled to serve a seven-year term beginning from the date of his confirmation. In his complaint, Carlisle maintained that a term of a Board member appointed pursuant to Amendment No. 161 begins at the end of the predecessor’s unextended term, not at Senate confirmation. Carlisle also sought a declaration that the attorney general’s opinion had misconstrued Amendment No. 161, and a declaration of the ending dates of the terms of Board members Lowder, Blackwell, Spina, Franklin, Miller, and Rane. Lastly, Carlisle asked for a temporary restraining order prohibiting the appointing committee from meeting because, according to Carlisle, there was no vacancy to be filled.

The trial court conducted a hearing and issued a “temporary restraining order/preliminary injunction” prohibiting the appointing committee from meeting or taking action to appoint a trustee to the Board to represent the Fifth Congressional District until the question of the ending date of Ball’s term was decided. On April 18, the defendants moved to dismiss the complaint on the ground that Carlisle lacked standing to bring the action. The trial court denied the motion to dismiss and denied the defendants’ request that it certify for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P., the question of Carlisle’s standing, stating:

“The issue at bar is whether or not [Carlisle] has standing to bring suit against the Defendants. Since [Carlisle] is a Trustee of Auburn University, he is no longer simply a private citizen, but rather acting as a public officer. An analogous case on issue of standing is The City Council of the City of Prichard et al. v. A.J. Cooper, Jr. [358 So.2d 440 (Ala.1978) ]. In that case, the defendants argued that the plaintiff, a mayor, did not have standing to bring suit. The Alabama Supreme Court disagreed, noting ‘the mayor is a real party in interest when he, as a public officer, is confronted with questions concerning his duty under statutory law. This is particularly true when those questions are controverted by other city officials who interpret their own statutory responsibilities in a manner which might make his own actions either inconsistent with his legal duties or subject to legal challenge.’ City v. Cooper, 358 So.2d 440, 441 (Ala.1978).
“[Carlisle] also raises the issue of whether or not President Ed Richardson was acting under statutory authority when he asked the Attorney General of Alabama for an opinion regarding the interpretation of the trustees’ terms of office. At the very least, § 36-15-l(l)(c), Ala.Code 1975, provides [Car-lisle] with standing to contest President Richardson’s action. This portion of the Title reads:
“ ‘Any other officer or governing body of a municipality or county or officer or governing body of any other elected or appointed body shall submit with the request for an opinion a resolution adopted by the governing body setting forth the facts showing the nature and character of the question which makes the advice or opinion sought necessary to the present performance of some official act that the officer or governing body must immediately perform.’
“The defendants’ motion to dismiss is ... denied.”

Standard of Review

“Mandamus review is available when the question presented is one of subject-matter jurisdiction.

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).’
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis added). ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Under such a circumstance, the trial court has ‘no alternative but to dismiss the action.’ 740 So.2d at 1029.”

Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005).

Discussion

The petitioners contend that the trial court erred in denying their motion to dismiss Carlisle’s action because, they say, Carlisle has no standing to assert the claims set out in his complaint for a declaratory judgment and injunctive relief and the trial court is thus without subject-matter jurisdiction. Specifically, the petitioners argue that because Carlisle has not established that he has incurred an actual injury, i.e., that some act by the petitioners has injured his right or barred him from performing his duties as a Board member, he does not have standing to bring this declaratory-judgment action.

“ ‘[Djeclaratory-judgment actions are designed to set controversies to rest before they lead to repudiation of obligations, invasion of rights, and the commission of wrongs.’ Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala.2003). Although declaratory-judgment actions are designed to be preemptive, ‘ “[tjhere must be a bona fide justiciable controversy in order to grant declaratory relief.” ’ Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177 (Ala.2006) (quoting Durham v. Community Bank of Marshall County, 584 So.2d 834, 835 (Ala.1991)). An essential component of justiciability is whether the plaintiff has standing to sue, Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164 (Ala.2002), and standing turns on whether the party has suffered an actual injury and whether that injury is to a legally protected right. Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253 (Ala.2004).”

Carey v. Howard, 950 So.2d 1131, 1134-35 (Ala.2006). Moreover, “ ‘[a] mere “interest in a problem!,]” no matter how longstanding the interest and no matter how qualified the [plaintiff] is in evaluating the problem, is not sufficient by itself to render the [plaintiff] “adversely affected” or “aggrieved” ’ ” so as to establish standing. Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1260 (Ala.2004)(See, J., concurring specially)(quoting Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).

The petitioners argue that Carlisle has not established that he has presently incurred or will inevitably incur injury to his own rights or that he will be unable to perform his duties as a Board member. They point out that “standing” has been found only when a party has suffered an actual injury, such as when a person was prohibited from taking an office to which he was elected, see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); when a person’s office was sought by another person, see James v. Langford, supra; and when a person’s vote was “overridden and held for naught,” see Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939).

Carlisle argues that the petitioners’ construction of standing to require an actual injury is too narrow. First, Carlisle maintains that because he brings this action in his role as a public official, i.e., a current member of the Board, he need only show injury to a legally protected right. Car-lisle urges that “[w]here public rights are at issue, such as here, [he] has a legal right as a public official to know what his duties are and to expect that other officials with whom he deals will discharge their duties and responsibilities in accordance with the law.”

In support of his contention, Carlisle relies heavily on this Court’s decision in City Council of Prichard v. Cooper, 358 So.2d 440 (Ala.1978). In Prichard, the mayor, in his capacity as mayor and as a citizen, sought a declaratory judgment as to whether the city council’s practice of conducting business by means of letters signed by at least three of the five council members was legal. The councilmen argued that the mayor did not have standing to bring the action because, they said, he had suffered no injury. This Court held that the mayor had standing to bring the action because the mayor was

“a real party in interest when he, as a public officer, is confronted with questions concerning his duty under statutory law. This is particularly true when those questions are controverted by other city officials who interpret their own statutory responsibilities in a manner which might make his own actions either inconsistent with his legal duties or subject to legal challenge.... If as chief executive officer of the municipality, the mayor is to carry out the legislative decisions of the council certainly he has standing to inquire by a declaratory judgment proceeding whether those decisions are legally made.”

358 So.2d at 441. Additionally, the Court noted the trial court’s finding that “ ‘[t]he practice complained of by [the mayor] has resulted in the expenditure of large sums of funds and the conduct of other business of the City which affects the rights of the [mayor] and his fellow citizens.’ ” Id. Thus, the Court held that the mayor had standing to bring the action because he had suffered an actual injury. See also Cleburne County Bd. of Educ. v. Payne, 518 So.2d 49 (Ala.1987)(holding that members of the board of trustees of an elementary school had standing to challenge the actions of the county board of education because they suffered an actual injury when the county board nullified their unanimous vote to reject a candidate for principal of the elementary school).

Unlike the public officials in Prichard and Cleburne, however, Carlisle has not suffered an actual injury to his rights as a public official nor has he been prevented from performing his duties. It is undisputed that Carlisle was confirmed pursuant to Amendment No. 670; therefore, Amendment No. 161 does not apply to Carlisle or affect his term of office, his right to hold office, his right to vote, or his right to request a vote. Additionally, Car-lisle does not allege that his vote as a member of the Board has been “held for naught,” that his seat on the Board has been challenged, or that he has been denied a request for a vote from the Board on its interpretation of the length of Ball’s term or on the propriety of Dr. Richardson’s request for an opinion from the attorney general on the length of terms of the members of the Board. Indeed, Carlisle does not and, it appears, cannot allege that he or his term as a member of the Board has been affected by the attorney general’s opinion or by Ball’s voluntarily relinquishing his seat on the Board. Nothing, other than speculation and conjecture, indicates that Carlisle’s abilities to perform his duties or his actions as a Board member are affected in any way by the attorney general’s opinion or by the manner in which Amendment No. 161 is applied to those trustees appointed pursuant to its provisions. Carlisle simply does not establish that he has incurred an actual injury; therefore, he does not establish standing.

We decline Carlisle’s invitation to extend to a trustee of a state university the principles of standing applicable to a trustee of a charitable trust. Auburn University is not a charitable trust; rather, it is an instrumentality of the State and subject to rigorous oversight by the legislature. Likewise, we decline Carlisle’s request to liken his role as a trustee of a state university to the role of a trustee of a private estate or trust. The facts of this case simply do not warrant such an extension of established law.

Finally, we reject Carlisle’s argument that he has standing as a taxpayer to bring this action. According to Carlisle, “the actions of the defendants have resulted in the expenditure of funds in procuring and implementing the [attorney general] Opinion and that future expenditures will be incurred in actions of the Appointing Committee.” Carlisle’s pleading, however, does not support this argument. In his complaint, Carlisle seeks a declaration as to the ending dates of terms of certain Board members and challenges Dr. Richardson’s actions. Consequently, as Car-lisle has pleaded his action, he does not establish taxpayer standing. Cf. Hunt v. Windom, 604 So.2d 395 (Ala.1992), and Henson v. HealthSouth Med. Ctr., Inc., 891 So.2d 863 (Ala.2004)(finding' taxpayer standing where the actions involved challenges to financial activities).

Because the petitioners have established that Carlisle does not have standing to maintain his declaratory-judgment action, the trial court does not have subject-matter jurisdiction over this case. Therefore, the trial court erred when it refused to dismiss the action.

Conclusion

The petitioners have established a clear legal right to an order dismissing Carlisle’s declaratory-judgment action. Therefore, this petition for a writ of mandamus is granted and the trial court is directed to enter an order dismissing this action.

PETITION GRANTED; WRIT ISSUED.

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

LYONS and PARKER, JJ., concur in the result.

      . Amendment No. 161 was amended by Amendment No. 670, which was ratified December 13, 2002, and which, among other things, shortened the term of a Board member from 12 years to 7 years. Amendment No. 670 is now Art. XIV, § 266, Off. Recomp. Ala. Const.1901. Amendment No. 161, before it was amended, provided, in pertinent part:
      "The trustees [of the Board of Trustees of Auburn University] shall be appointed by the governor, by and with the advice and consent of the senate, and shall hold office for a term of twelve years, and until their successors shall be appointed and qualified. The board shall be divided into three classes, as nearly equal as may be, so that one-third may be chosen quadrennially. Vacancies occurring in the office of trustees from death or resignation shall be filled by the governor, and such appointee shall hold office until the next meeting of the legislature. The members of the board of trustees as now constituted shall hold office until their respective terms expire under existing law, and until their successors shall be appointed.”

      . Amendment No. 670 provides, in pertinent part:
      "A trustee shall hold office for a term of seven years, and may serve no more than two full seven-year terms of office....
      "Each member of the board of trustees as constituted on the date this amendatory language is ratified may serve the remainder of his or her current term and shall be eligible, if otherwise qualified, to serve for no more than two additional seven-year terms.

      "A term shall begin only upon confirmation by the Senate. A member may continue to serve until a successor is confirmed, but in no case for more than one year after completion of a term.”

      . Because this petition involves a question of standing, we express no opinion on the propriety of the substantive issues of law contained in the attorney general’s opinion or the application of the opinion to the underlying facts.