author: COBB, Chief Justice.

text:
    Ex parte Gregory S. BENTLEY et al. (In re Intergraph Corporation and Cobalt BSI Holding, L.L.C. v. Gregory S. Bentley et al.).
    1081083.
    Supreme Court of Alabama.
    May 21, 2010.

      M. Christian King, William H. Brooks, and James F. Hughey III of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioners.
    G. Bartley Loftin III and Walter A. Dodgen of Maynard, Cooper & Gale, P.C., Huntsville; Drayton Nabers, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; Douglas B. Hargett of Hall & Tanner, P.C., Tuscumbia; and David Vance Lucas and Anthony P. Zana, Intergraph Corporation, Huntsville, for respondents.
   COBB, Chief Justice.

Bentley Systems Incorporated (“BSI”), a Delaware corporation based in Pennsylvania, and Gregory S. Bentley, Keith A. Bentley, Barry J. Bentley, Raymond B. Bentley, and Richard P. “Scott” Bentley (“the Bentley brothers”), residents of Pennsylvania and the defendants in the underlying action, petition this Court for a writ of mandamus instructing the Madison Circuit Court to vacate its order denying their motion to dismiss the action or, in the alternative, to stay the proceedings in the underlying action or to enter an order dismissing the action without prejudice. The plaintiffs in the underlying action, Cobalt BSI Holding, L.L.C. (“Cobalt”), a Delaware limited-liability company based in Nevada, and Intergraph Corporation (“In-tergraph”), a Delaware corporation based in Alabama, sued the defendants in the Madison Circuit Court on November 26, 2008, both directly and derivatively as shareholders of BSI. The action challenged an incentive-compensation plan between the plaintiffs and the defendants and alleged, among other things, that the Bentley brothers were operating BSI as their corporate “alter ego.” The relief sought includes the permanent removal of the Bentley brothers from any managerial or directorial position at BSI. On the same day the underlying action was filed in Alabama, Cobalt fíled a complaint against BSI and the Bentley brothers in the Delaware Chancery Court asserting similar claims and allegations and seeking similar relief; the Delaware action also sought an inspection of BSI’s corporate books and records under Delaware business law.

On January 16, 2009, the plaintiffs filed a motion in the Alabama action seeking a preliminary injunction enjoining any further distribution of profits of BSI to the Bentley brothers. Also on January 16, BSI and the Bentley brothers filed an action in Delaware seeking a judgment declaring the law as to the same issues raised in the Alabama action. In light of their Delaware action, BSI and the Bentley brothers subsequently filed a motion to dismiss the Alabama action pursuant to Ala.Code 1975, § 6-5-430, on the ground that Delaware was a more appropriate forum. Section 6-5-430 states:

“Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

The Bentley brothers also asserted that they should be dismissed as defendants in the Alabama action because, they say, the Alabama court lacked personal jurisdiction over them.

The genesis of the underlying action was Intergraph’s 1987 acquisition of a 50% interest in BSI by way of a stock-purchase agreement. Keith, Barry, Raymond, and Scott Bentley transferred one-half of BSI’s then extant stock to Intergraph in exchange for Intergraph stock worth $3 million. At least a portion of that transaction took place in Alabama. Intergraph subsequently transferred its BSI stock to Inter-graph Properties Company in 2002, and Cobalt, also an Intergraph affiliate, acquired that stock in 2006. Cobalt remains the largest single shareholder of BSI stock. Intergraph Properties merged with Intergraph in 2008.

In addition to the stock-purchase agreement, Intergraph and BSI entered into contracts for the sale and licensing of software products that have already resulted in two earlier opinions by this Court: Bentley Systems, Inc. v. Intergraph Corp., 922 So.2d 61 (Ala.2005) (“Bentley I ”), and Intergraph Corp. v. Bentley Systems, Inc., [Ms. 1080300, March 12, 2010] — So.3d -(Ala.2010) (“Bentley II”). Although all the facts of those complex cases are not relevant to Qie issues presented here, a brief review of those facts provides some insight into the relationships of the parties. In Bentley I, the Court noted that Inter-graph had sold, by way of an asset-purchase agreement, engineering-design software products to Bentley for Bentley to develop and market to engineering, architectural, and design companies; the agreement encompassed the conveyance of various software products and the associated maintenance agreements. Disputes over the contractual responsibilities and liabilities of the parties resulted in Intergraph’s filing a declaratory-judgement action against Bentley in the Madison Circuit Court, following which Bentley filed a counterclaim against Intergraph. After a review of the voluminous evidentiary submissions, the trial court eventually entered a judgment declaring that Intergraph was owed in excess of $7.5 million on the contractual agreements and denying Bentley the relief it sought in its counterclaim. Bentley appealed, and Intergraph cross-appealed. This Court reversed the trial court’s judgment, holding, among other things, that the many factual disputes in the case were not subject to resolution by evidentiary submissions without live testimony and remanding the cause to the trial court for further proceedings.

In Bentley II, this Court summarized the proceedings in the trial court on remand:

“On remand, the trial court referred all disputed issues to a special master. The special master conducted proceedings in three separate phases and heard live testimony from a number of witnesses. The special master submitted a report in which he concluded that the principal value of the promissory note (‘the note’) should be adjusted to $22,295,456; counting payments already made and cash adjustments awarded to Intergraph, the special master determined that Bentley owed Intergraph an additional $1,539,744, including $500,000 in retroactive interest, on the note. The special master awarded Bentley $2,226,486 on its breach-of-contract counterclaim for lost profits. He concluded that Intergraph was entitled to indemnification from Bentley for legal expenses totaling $6,636,144.20; he concluded that Bentley was entitled to indemnification from Intergraph for legal expenses totaling $5,731,077.98. The net result of all the special master’s rulings was that, on balance, Bentley must pay Intergraph $279,733.”

— So.3d at-. The trial court entered an order adopting the special master’s findings; Intergraph appealed and Bentley cross-appealed. After an extensive analysis of the facts and legal issues governing the contractual agreements between Inter-graph and Bentley, the Court held:

“We find that the trial court erred in accepting the special master’s calculation of damages regarding Bentley’s counterclaim because that calculation failed to include the cost of the increased value of the note in establishing Bentley’s lost-profits damages, and we reverse the judgment in that respect. We also reverse the trial court’s judgment insofar as it fails to award Bentley lost-profits damages for years two through five. In all other respects, the judgment of the trial court is due to be affirmed. We remand the case to the trial court for it, either with or without the assistance of the special master to hear argument from the parties and to enter a judgment consistent with this opinion.”

— So.3d at -. Thus, litigation between Intergraph and BSI continues on the contracts involving the purchase of Intergraph’s software products.

The claims underlying this petition are Intergraph’s assertions that after the software licenses that granted Intergraph a license to distribute BSI’s “Microstation” software product expired in 1995 — and with them the “Royalty Payment Bonus Plan” that resulted in a 20% payment of Intergraph’s royalty payments directly to the Bentley brothers as incentive compensation — the Bentley brothers wrongfully began distributing 20% of BSI’s pre-tax profits among themselves. Intergraph and Cobalt assert that the effect of this action by the Bentley brothers has been to remove from BSI approximately $59.5 million in profits that were due to be divided among all BSI shareholders. Thus, the plaintiffs assert that the Bentley brothers breached their fiduciary duties to BSI’s corporate shareholders and fraudulently suppressed information about their “bonus” plan. The plaintiffs further assert that the Bentley brothers operate BSI as their “alter ego,” without regard to the corporate board of directors or the rights of the other shareholders.

On May 6, 2009, the trial court denied the defendants’ motion to dismiss, after considering voluminous evidentiary materials and briefings as well as conducting hearings on the issues of forum non conve- niens and personal jurisdiction; that order does not supply a rationale for its denial. BSI and the Bentley brothers (“the petitioners”) assert that they are entitled to a writ of mandamus requiring the dismissal of Cobalt and Intergraph’s action in this state on three different grounds: (1) that the doctrine of forum non conveniens favors maintaining such an action in Delaware, (2) that an Alabama court may not interfere with the internal affairs of a Delaware corporation, and (3) that the Alabama court has no personal jurisdiction over the Bentley brothers.

Each of these arguments must be considered in light of the overarching standard of review:

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991). It is well settled that ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.’ Ex parte Central Bank of the South, 675 So.2d 403, 406 (Ala.1996).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). See also Ex parte Synovus Trust Co., 41 So.3d 70 (Ala.2009).

I. Forum Non Conveniens

The petitioners first argue that the trial court exceeded its discretion in denying their motion to dismiss because, they say, Ala.Code 1975, § 6-5-430, requires the dismissal of the Alabama action under the doctrine of forum non conveniens. This Court recently discussed the general considerations that govern when the doctrine of forum non conveniens applies in a case involving an out-of-state party:

“‘The purpose of the doctrine of forum non conveniens is to “prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.’” Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala.2003) (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995)). Under § 6-5-430 a trial court must dismiss an action without prejudice ‘if, upon motion of a defendant, it is shown that there exists a more appropriate forum outside the state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice. ...’ Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998).”

Ex parte DaimlerChrysler Corp., 952 So.2d 1082, 1087 (Ala.2006). In Daimler-Chrysler the Court considered the claim of the administrator of a decedent’s estate who sought wrongful-death damages under Utah law as the result of an automobile accident that had occurred in Utah. The only connection to Alabama was the fact that the vehicle had been purchased in this State. After considering all the circumstances of the case, including the availability of witnesses who had seen the accident and who had treated the decedent’s injuries, the Court concluded that the doctrine of forum non conveniens required the dismissal of the action. In its analysis, the Court noted a feature of the doctrine of forum non conveniens under § 6-5-430 that is particularly applicable to the instant situation. That is, the Court in Da-imlerChrysler approved the parties’ concession that in order for the doctrine of forum non conveniens to apply, all the plaintiffs claims in the underlying lawsuit must meet the forum non conveniens criteria of § 6-5-430.

A second consideration in the application of the doctrine of forum non con-veniens is that factual determinations are generally left to the sound discretion of the trial court. See, e.g., Vulcan Materials Co. v. Alabama Ins. Guar. Ass’n, 985 So.2d 376, 381 (Ala.2007) (“ ‘The determination of the situs of the claim — either inside or outside the State of Alabama — is a factual determination left to the sound discretion of the trial court.’ ” (quoting Ex parte Ford Motor Credit Co., 561 So.2d 244, 246 (Ala.Civ.App.1990)); Malsch v. Bell Helicopter Textron, Inc., 916 So.2d 600 (Ala.2005) (trial court acted within its discretion in determining, under the facts of that case, that the plaintiffs-crewmem-bers’ action was not barred by the expiration of the limitations period); and Donald v. Transport Life Ins. Co., 595 So.2d 865 (Ala.1992) (the decision whether to dismiss an action on the basis of the doctrine of forum non conveniens is within the trial court’s discretion). The principle that this Court will defer to the trial court’s discretion with regard to factual determinations has particular weight when the petitioners are seeking mandamus relief and must establish a “clear legal right” to that relief in order to prevail. Empire Fire & Marine Ins. Co., supra.

Intergraph and Cobalt’s evidentia-ry submissions demonstrate that BSI maintains a large office in Alabama that employs over 120 people and that more than 130 BSI shareholders reside in Alabama. Intergraph and Cobalt have also provided submissions to show that BSI has held board meetings in Alabama and that at those meetings Intergraph representatives asked about the incentive-bonus plan that is one of the issues in the underlying action. Intergraph and Cobalt also show that the petitioners distributed financial statements to Intergraph in Alabama that, they say, misrepresented material facts about BSI’s stock and suppressed information about the incentive-bonus plan. In addition to their claims of shareholder oppression, Intergraph and Cobalt contend that the petitioners violated the Alabama Securities Act, § 8-6-1 et seq., Ala.Code 1975, in their representations concerning BSI stock.

With respect to the statutory forum non conveniens factors of § 6-5-430 (“the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice”), Intergraph and Cobalt also call this Court’s attention to the history of litigation in this State involving BSI. The facts also show that Intergraph is based in Alabama and has its home office here and that the vice president and general counsel of Cobalt resides in Madison County, Alabama. In response, the petitioners assert that Delaware is the more appropriate forum for the adjudication of this dispute because all the corporate parties to the dispute are incorporated under Delaware law. We note, however, that there is no evidence to support an inference that any of the acts that gave rise to this dispute occurred in Delaware, and there is no indication that any party or witness in this litigation is a resident of Delaware. In addition to the history of transactions between the parties reflected in the earlier cases involving Intergraph and BSI, Inter-graph and Cobalt presented evidence indicating that the Bentley brothers control BSI and distribute the profits of BSI solely among themselves and that BSI makes no distribution of profits to any other minority shareholder. We conclude that the trial court could reasonably have concluded that one or more of Intergraph and Cobalt’s claims against the petitioners arose in this State. Such a conclusion would dictate that § 6-5-430 would not apply to this case. DaimlerChryler, supra. Moreover, a review of the applicable statutory factors persuades us that the petitioners have not demonstrated a clear legal right to have the underlying action dismissed on the ground of forum non conveniens, nor have they shown that the trial court exceeded its discretion in denying their motion to dismiss.

II. The Internal-Affairs Doctrine

The “internal-affairs doctrine” is the long-recognized principle that “‘[t]he courts of one state have no visitorial power over the corporations of another state in matters of vital concern to internal policy and management....’” Ellis v. Mutual Life Ins. Co. of New York, 237 Ala. 492, 504, 187 So. 434, 444 (1939)(quoting Hoglan v. Moore, 219 Ala. 497, 501, 122 So. 824, 828 (1929)). Thus, the Court in Ellis held that an action seeking a judgment declaring the manner in which Mutual Life Insurance Company of New York, a New York corporation, was to distribute its dividends was not appropriate for adjudication by an Alabama court. In more recent precedent the internal-affairs doctrine has come to imply that litigation in Alabama concerning some aspect of corporate governance must defer to the law of the state of incorporation. For example, in Massey v. Disc Manufacturing, Inc., 601 So.2d 449 (Ala.1992), this Court considered claims of the usurpation of corporate opportunity. The Court quoted as a basis for its analysis the “established rule of conflicts law” that “ ‘the internal corporate relationship is governed by the law of the state of incorporation.’ ” 601 So.2d at 454 (quoting P. John Kozyris, Corporate War and Choice of Law, 1985 Duke L.J. 1,15). The Court implied that it was appropriate for an Alabama court to adjudicate the fiduciary duties of the directors in question so long as the court applied the law of the state of incorporation. However, in Massey, the Court determined that the complainants — the minority shareholders — had failed to meet the contractual prerequisites for bringing their claim of breach of fiduciary duty and so reversed the judgment of the trial court.

Although not a state-law case, the bankruptcy case of In re Chalk Line Manufacturing, Inc., (Bankr.No. 93-42773, Adv. No. 94-10003, July 26, 1994) (Bankr.ND.Ala.1994) (not published in Bankruptcy Reporter), considered an analogous factual context regarding minority-shareholder complaints of oppression and breach of fiduciary duty and provided a scholarly discussion of the state of Alabama law concerning the internal-affairs doctrine in an analogous factual context. Judge James S. Sledge, writing for the United States Bankruptcy Court, stated:

“In Alabama, the law of the state of incorporation governs the internal corporate relationship. Massey v. Disc Mfg., Inc., 601 So.2d 449 (Ala.1992). The Alabama Code authorizes and regulates foreign corporations doing business within the state. Ala.Code § 10-2A-225, et seq. (Michie 1975). The statute specifically refuses any authority to Alabama ‘to regulate the organization or the internal affairs of a foreign corporation. Ala.Code § 10-2A-226 (Michie 1975). The plaintiffs and defendants hold shares in Chalk Line, Inc., a Delaware corporation!;] therefore, Delaware corporate law governs the resolution of their dispute.
“Alabama courts have long adhered to the internal affairs doctrine in choosing the appropriate state’s law. In Boyette v. Preston Motors Corporation, 206 Ala. 240, 89 So. 746 (1921), the court held that the laws of Delaware regulated the relationship among stockholders in a corporation formed under the laws of that state. The court concluded that a stockholder subjects himself to the laws of the state of incorporation upon assuming the relations of a stockholder. Boyette, 206 Ala. at 244.
“The Alabama court defined ‘internal affairs’ in Ellis v. Mutual Life Ins. Co., 237 Ala. 492, 187 So. 434 (1939), as follows:
“ ‘where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president, or other officer, and is the act of the corporation, whether acting in stockholders meeting, or through its agent, the board of directors, that then such action is the management of the internal affairs of the corporation.’
“Ellis, 237 Ala. at 502. The Alabama court has applied the internal affairs doctrine on numerous occasional since it decided Ellis, but has not undertaken further definition of the rule. Other courts, however, have elaborated on the scope of ‘internal affairs.’ For example, in McDermott Incorporated v. Lewis a Delaware court stated that ‘this doctrine governs the choice of law determinations involving matters peculiar to corporations that is those activities concerning the relationships inter se of the corporation its directors, officers and shareholders.’ 531 A.2d 206, 214 (Del.1987).
“Although Alabama precedent establishes that the internal affairs doctrine is the rule on choice-of-law in Alabama, the Alabama courts have never specifically addressed whether the doctrine applies to a majority shareholder’s breach of duty to the minority. Two ease[s] in which the Alabama court might have decided the issue fail to provide a clear answer, and in fact, suggest contradictory results: Stroud v. John M. Cockerham & Assoc., 620 So.2d 643 (Ala.1993), and Galbreath v. Scott, 433 So.2d 454 (1983).
“Arguably, the Alabama courts have indicated an intent to apply the internal affairs doctrine in determining the liability of majority shareholders. In Stroud v. John M. Cockerham & Assoc., 620 So.2d 643 (Ala.1993), the plaintiffs, minority shareholders in a Virginia corporation with its principal place of business in Huntsville, Alabama, sued the majority shareholders. The plaintiffs alleged, among other things, that the majority shareholders breached their fiduciary duty in conspiring to ‘squeeze out’ the minority shareholders. Id. at 646. The alleged ‘squeeze out’ involved a transfer of shares from one group of shareholders to another. Id. The plaintiffs claimed that the transaction involved a wrongful issue of treasury shares. Id. The court concluded, however, that the undisputed evidence showed that the purchase of shares did not involve corporate funds and that the corporation merely served as a conduit. Id. at 648
“The Stroud court cited only Virginia law in its opinion after determining that Ala.Code § 10-2A-226 required that Virginia law govern the corporation’s internal affairs. Id. at 647 (citing Ala. Code § 10-2A-226 (Michie 1975)). The court did not, however, specifically address the issue of whether the internal affairs doctrine applied to claims for breach of fiduciary duty. The court applied a Virginia statute defining the authority of a corporation to purchase its shares, but concluded that the corporation did not purchase any shares Id. at 648. The Stroud court’s application of Virginia law in this case suggests that the court would have resolved the issue of fiduciary breach with reference to Virginia law if the plaintiff had established evidence to support its allegations. As the court did not reach the issue of breach, however, the case provides only suggestive authority.
“Galbreath v. Scott, 433 So.2d 454 (1983), suggests, but again does not authoritatively prescribe, an opposite result. In Galbreath, the minority shareholder in a Florida corporation sued the majority shareholder. Although the Galbreath court denied the minority shareholder individual recovery on grounds that the complaint stated claims which could only be asserted derivatively, the court discussed the trend in Alabama toward drawing distinctions between closely and widely-held corporations in the treatment of minority shareholder’s claims of fiduciary breach by the majority. Id. at 457 (citing Burt v. Burt Boiler Works, Inc., 360 So.2d 327 (Ala.1978)[) ]. The court did not discuss choice-of-law. The Galbreath decision suggests that the Alabama court might apply Alabama law in determining the liability of a majority shareholder to the minority. But again, the court has not definitively answered the question.
“Although the Alabama courts have not yet analyzed whether the law of the state of incorporation applies to the determination of the duty majority shareholder’s [sic] owed the minority, this Court believes that the Alabama court would follow the Restatement (Second) of Conflict of Laws as that court has applied the Restatement’s choice-of-law rules in similar situations involving corporations. See International Insurance Co. v. Johns, 874 F.2d 1447, 1458, n. 19 (11th Cir.1989) (holding that where Florida state court had not addressed choice-of-law issues with regard to director’s liability, federal court could presume that Florida court would follow the Restatement (Second) of Conflict of Laws based on the Florida court’s past reliance on the treatise).
“In Massey v. Disc Mfg., Inc., 601 So.2d 449 (Ala.1992), the court cited Restatement (Second) of Conflict of Laws § 309 (1971), in concluding that Delaware law should determine the extent of a director’s liability to a Delaware corporation. The Restatement likewise provides the rule for determining choice-of-law issues involving the liability of majority shareholders to minority shareholders and the corporation. Restatement (Second) of Conflict of Laws § 306 (1971) provides:
“ ‘The obligations owed by a majority shareholder to the corporation and to the minority shareholders will be determined by the local law of the state of incorporation, except in the unusual case where, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the parties and the corporation, in which event the local law of the other state will be applied.’
“The court in Massey cited to comment (c) to § 309 which states:
“ ‘Issues relating to the validity of such acts, and to any resulting liability on the part of the directors and officers, cannot practicably be determined differently in different states. It would be impracticable, for example, for a share issue or declaration of dividends to be valid in one state and invalid in another. In the absence of a statute to the contrary, the local law of the state of incorporation -will be applied in the great majority of instances to determine issues of this sort. The local law of some state other than that of incorporation should not be applied to determine such issues unless this other state has an interest that is superior to that of all other states in the issue to be decided or unless, for reasons explained in Comment g of § 302, its local law rule is the same as that prevailing in many of the other states in which the corporation does business or has shareholders. The local law of some state other than the state of incorporation is most likely to be applied to determine issues of this sort in a situation where the corporation does all, or nearly all, of its business and has most of its shareholders in this other state and has little contact, apart from the fact of its incorporation, with the state of incorporation.’
‘“Within the second category fall acts, such as seizing a corporate opportunity or causing the making of a contract or the commission of a tort. Issues relating to the liability of the directors and officers for acts such as these can practicably be decided differently in different states. It would be practicable, for example, for a director to be held liable for a given act in one state and to be held not liable for an identical act in another state. Nevertheless, in the absence of an applicable local statute, the local law of the state of incorporation has usually been applied to determine the liability of the directors or officers for acts such as these to the corporation, its creditors and shareholders. This law has usually been applied even in a situation where it might be thought that some other state had a greater interest than the state of incorporation in the issue to be determined. The local law rule of a state other than the state of incorporation is most likely to be applied in a situation where this rule embodies an important policy of the other state and where the corporation has little contact with the state of its incorporation.’
601 So.2d 449, 454-55 (Ala.1992).
“The court’s adoption of the Restatement’s rationale that a director should not be held liable for an act in one state that would not create liability in another state, indicates that the court would adopt the similar rationale cited in comment (c) to § 306 applicable to determining the liability of majority shareholders.
“ ‘In the absence of an applicable local statute, the local law of the state of incorporation will be applied in the great majority of instances to determine issues covered by the present rule. This is partly for the reason that these issues are of the sort which cannot satisfactorily be determined differently in different states. It would seem wrong, for example, to hold that a majority shareholder owes a fiduciary obligation to one shareholder under the local law of state X but does not owe such an obligation to a shareholder of the same class under the local law of state Y. As a result, the local law of some state other than the state of incorporation should not be applied to determine such issues unless this other state has an interest that is clearly superior to that of all other states in the issue to be decided or unless, for reasons explained in Comment g of § 302, its local law rule is the same as that prevailing in many of the other states in which the corporation does business or has shareholders. The local law of some state other than the state of incorporation is most likely to be applied in a situation where the corporation does all, or nearly all, of its business and has most of its shareholders in that other state and has little contact, apart from the fact of its incorporation, with the state of incorporation.’
“Restatement (Second) of Conflict of Laws § 306 cmt. c (1971).
“Although the Restatement would under some circumstances allow a court to apply the law of a state other than the state of incorporation, the comments suggest that this exception to the general rule is narrowly drawn and would not apply to a corporation doing business in many states and abroad. Id. The plaintiffs have presented the Court with no persuasive arguments for abandoning a general rule which is consistent with long-standing Alabama case law, the United States Constitution, and public policy.”

(Footnote omitted.)

Although we note with approval the Bankruptcy Court’s discussion in Chalk Line, we need not go so far as to adopt its entire rationale. Rather, in the context of this case, we hold that the “internal-affairs doctrine” as applied in this State does not deprive the trial court of jurisdiction over the claims in the underlying action, nor does it require the trial court to dismiss the instant action in deference to litigating those claims in Delaware. Thus, the internal-affairs doctrine cannot serve as the basis for a clear legal right for the writ of mandamus sought by BSI and the Bentley brothers. Rather, where the underlying claims implicate issues of corporate governance, the trial court will be constrained to apply the corporate law of Delaware. Further, we believe that the discussion from Challc Line will provide a useful reference for the application of Alabama law to claims that may not implicate corporate governance, such as suppression.

III. Personal Jurisdiction

The Bentley brothers further assert that they have a clear legal right to a writ of mandamus ordering the dismissal of the underlying action as to them, because, they say, the trial court lacks personal jurisdiction over them. Generally, the question whether a trial court has properly denied a motion to dismiss on grounds of lack of personal jurisdiction presents a question of law to be considered de novo by the appellate courts. Leithead v. Banyan Corp., 926 So.2d 1025 (Ala.2005).

“ ‘ “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)).’ ”

Leithead, 926 So.2d at 1030-31 (quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525-26 (Ala.2003)).

The Bentley brothers assert that they do not reside in Alabama and that their previous business dealings in this State are stale because such activities as the drafting of the business agreements with Intergraph occurred more than 10 years before the filing of the underlying action. The Bentley brothers also assert that their contacts with this State are only intermittent and occasional and do not qualify as the sort of “continuous or systematic” contact that would support the exercise of personal jurisdiction over them by a court in Alabama. In reply, Inter-graph and Cobalt note the evidence presented to the trial court indicating that the Bentley brothers have sent many thousand written and electronic communications to Alabama in the furtherance of their interests in BSI; that they have made numerous telephone calls to and participated in telephone conferences in this State; and that they have traveled to this State on many occasions.

Moreover, it is also apparent that the Bentley brothers have been substantially involved in the prior litigation concerning BSI and Intergraph in this State, including the litigation concerning the software-purchase agreement between BSI and Inter-graph that originally involved some $3 million in company stock. As is evident from the litigation history detailed in Bentley II, supra, that stock transaction remains the basis of ongoing litigation as well as being a significant factor in the claim in the underlying case. That is, the ownership of BSI stock by the Bentley brothers retained as a result of the original stock-purchase agreement discussed in Bentley I constituted the ownership interest that In-tergraph and Cobalt claim resulted in the Bentley brothers’ wrongful activities. Among the instances when the Bentley brothers personally traveled to Alabama were the various user conferences held by Intergraph for the purpose of demonstrating and developing the various software products relevant to Intergraph and BSI’s business pursuits. Further, the materials before the Court reveal that BSI’s second largest office is located in Madison County, Alabama, and in 2007 that office employed more than 120 individuals with an annual payroll in excess of $11 million; the record contains evidence from which the trial court could have reasonably inferred that the Bentley brothers personally exercised significant direct control over the operations of that office. Under all the circumstances, we conclude that the Bentley brothers had such contacts with Alabama that they “should reasonably anticipate being haled into court [here].” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

We conclude that the Bentley brothers have failed to show the requisite clear legal right to a dismissal based on the lack of personal jurisdiction. Empire Fire & Marine Ins. Co., supra. Accordingly, the petition for the writ of mandamus is denied.

PETITION DENIED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

      . The term "Bentley” as used in both Bentley I and Bentley II referred to BSI and Bentley Systems Europe B.V.

      . BSI’s revenue is approximately $400 million annually.

      . The parties produced more than 41,000 pages of documentary evidence in discovery directed toward the questions of jurisdiction and the appropriateness of the forum.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    J.M.M. v. J.C.
    2090172.
    Court of Civil Appeals of Alabama.
    May 7, 2010.
    Jason R. Eubanks, Slocomb, for appellant.
    David J. Harrison, Geneva, for appellee.
    Rachel H. Sullivan, Geneva, for Jeffery D. Hatcher, guardian ad litem, in support of the appellant.
   THOMPSON, Presiding Judge.

J.M.M. (“the mother”) appeals from the juvenile court’s August 19, 2009, judgment finding her child, J.M. (“the child”), dependent and determining that it was in the child’s best interest to remain in the custody of J.C., with whom the child had been living since the summer of 2006.

The record indicates the following. The child was born in September 2005. In June 2006, the mother brought the child to J.C., saying that J.C.’s son was the child’s father. At that time, the mother left the child with J.C., who contacted the Geneva County Department of Human Resources (“DHR”). On December 13, 2006, DHR filed a petition in the juvenile court alleging that the child was dependent. On December 14, 2006, the juvenile court held a hearing and agreed that the child was dependent. The child’s maternal grandmother is HIV positive and acknowledges that, when the mother left the child with J.C., she was too ill to care for the child. The juvenile court awarded temporary custody of the child to J.C., subject to the mother’s right to visitation.

In April 2007, the mother requested that custody of the child be returned to her. A hearing was held in May 2007. No transcript of that hearing appears in the record, and it is unclear whether the mother was represented by counsel at that time. Nonetheless, after the hearing, the juvenile court entered a judgment (“the May 2007 judgment”) finding that the child was dependent and ordering that the child remain in the custody of J.C. The mother did not appeal from the May 2007 judgment.

Also in May 2007, J.C. moved for permanent custody of the child. In December 2007, at a hearing on the issue of the child’s custody, which apparently was held pursuant to J.C.’s May 2007 petition, the juvenile court gave the mother time to submit records to show that she had completed unspecified “court referrals” and to show that she had paid child support. In its judgment of August 19, 2009, the juvenile court noted that the mother never submitted evidence of completion of the programs or that she has paid child support during the three years J.C. has had custody of the child.

In May 2007, the mother indicated that J.C.’s son might not be the father of the child. The juvenile court ordered the man who the mother initially identified as the child’s father to take a paternity test. In October 2007, DHR reported to the juvenile court that a paternity test indicated that J.C.’s son was not the child’s father; however, no immediate action was taken as a result of the paternity test.

In February 2009, the maternal grandmother petitioned for “temporary” custody of the child. A hearing was held on July 8, 2009, on the maternal grandmother’s petition for custody and J.C.’s motion for permanent custody. From the record before us, it does not appear that the mother had a motion or claim pending before the court at that time. After the hearing, the juvenile court entered the judgment holding that J.C. was to retain custody of the child. The juvenile court further “reserve[d] support” and directed the mother to file a child-support income affidavit (form CS-41), see Rule 32, Ala. R. Jud. Admin., within 30 days of the date of the judgment. According to the record, the juvenile court has not yet entered an order on the issue of the mother’s child support. The mother appeals from the August 2009 judgment.

Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal. Hamilton ex rel. Slate-Hamilton v. Connolly, 959 So.2d 640, 642 (Ala.2006). Although the parties did not address whether the judgment in this case was final so as to support an appeal, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

“A judgment is not final if it fails to completely adjudicate all issues between the parties. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009) (citing Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008)).” Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010). “An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties.” Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000) (citing Rule 54(b), Ala. R.' Civ. P., and Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987)).

In Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001), this court held that a judgment modifying custody was not final for purposes of appeal because the judgment also stated, “ ‘Child support to be paid by [the mother] to [the father] shall be determined upon the prompt submission of Child Support Income Affidavits (CS-41) by the parties,’ ” and “[t]he record contained] no further submissions or orders of the court relating to child support.” Similarly, in Anderson v. Anderson, 899 So.2d 1008, 1010 (Ala.Civ.App.2004), this court held that a judgment divorcing the parties and awarding primary physical custody of their child to the father was not final for purposes of appeal because the trial court had not determined the amount of the mother’s child-support obligation.

In this case, as in Tomlinson, the juvenile court reserved the issue of the mother’s child-support obligation pending the mother’s submission of her income affidavit. Because the juvenile court has not yet determined the mother’s child-support obligation, the August 2009 judgment is not final. “ ‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’ ” Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)). Accordingly, we dismiss the mother’s appeal.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . We note that the mother was represented by counsel at the July 8, 2009, hearing. J.C. had also asked for a termination of the mother's parental rights; however, the juvenile court dismissed that portion of the petition and proceeded only on the issue regarding who would be awarded permanent custody of the child. As previously noted, the juvenile court had found the child to be dependent in May 2007.


text:
    WILBURN QUARRIES, LLC, et al. v. STATE DEPARTMENT OF REVENUE.
    2090522.
    Court of Civil Appeals of Alabama.
    May 7, 2010.

      John F. DeBuys and R. Rhett Owens of Burr & Forman LLP, Birmingham, for appellant Wilburn Quarries, LLC.
    Ron Bowden, chief counsel, and John J. Breckenridge, asst, counsel, Alabama Department of Revenue, for appellee.
   THOMPSON, Presiding Judge.

Wilburn Quarries, LLC, and its members appeal from a judgment of the circuit court upholding the decision of an administrative law judge (“ALJ”) in favor of the State Department of Revenue (“the Department”). Specifically, the ALJ found that the Alabama Uniform Severance Tax (“the severance tax”), § 40-13-50 et seq., Ala.Code 1975, applied to severed materials purchased from a site that Wilburn Quarries owned in Cullman County and that, therefore, Wilburn Quarries owed $52,176.87 in taxes and interest, as assessed by the Department.

The record indicates the following. In the 1960s and 1970s, King Coal Company leased certain property in Cullman County from T.J. Pate. King Coal Company operated a strip mine on the property. As part of its mining operation, King Coal Company removed “overburden,” including sandstone and other natural materials, and left it in what the parties referred to as “spoil piles.” A second strip-mining operation on adjoining property, which Pate also owned, discarded its overburden in spoil piles as well. The spoil piles from both mining operations were left on Pate’s property.

In 2005, Pate and two of his sons formed Wilburn Quarries. Wilburn Quarries is in the business of removing certain materials from the spoil piles on Pate’s property, processing that material into different grades of crushed sandrock, then selling the processed materials for use in gravel, cement, and asphalt.

In 2005, Wilburn Quarries registered with the Department to pay the severance tax. It collected the severance tax for the first quarter of 2005 but failed to pay it from April 2005 to August 2007. In a letter that Wilburn Quarries’ office manager Kris Broadhead sent to the Department dated October 22, 2007, Wilburn Quarries recognized that it was delinquent in its payment of the severance tax and sought to work out a payment plan. In the letter, Broadhead estimated that Wilburn Quarries owed approximately $50,000 in severance taxes. On March 7, 2008, the Department entered a final assessment against Wilburn Quarries for $52,176.87, the severance tax owed from April 2005 to August 2007.

Wilburn Quarries and its members appealed the final assessment to the Department’s administrative law division. The basis for its appeal was that it had never been engaged in mining or quarrying operations in Cullman County; therefore, it argued, it was not subject to the severance tax. After a hearing on the matter, the ALJ upheld the final assessment. Wilburn Quarries and its members then appealed to the Cullman Circuit Court, which also affirmed the final assessment. Wilburn Quarries and its members appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, which has exclusive jurisdiction over appeals from decisions of administrative agencies other than the Alabama Public Service Commission. See § 12-3-10, Ala. Code 1975.

On appeal Wilburn Quarries and its members argue, as they did before the ALJ and the circuit court, that Wilburn Quarries was not subject to the severance tax because, they say, it was not engaged in mining or quarrying. Specifically, they assert that because Wilburn Quarries processed materials that had already been removed from their natural state during the mining operations, it was not responsible for severance taxes when it sold the materials taken from those operations’ spoil piles. The facts of this case are not disputed. Instead, resolution of this issue requires us to apply the rules of statutory construction; thus, our standard of review is de novo.

“Our standard of review is de novo: ‘Because the issues presented by [this appeal] concern only questions of law involving statutory construction, the standard of review is de novo. See Taylor v. Cox, 710 So.2d 406 (Ala.1998).’ Whitehurst v. Baker, 959 So.2d 69, 70 (Ala.2006). This Court has also said:
“ ‘[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute. Bean Dredging[, LLC v. Alabama Dep’t of Revenue], 855 So.2d [513] at 517 [ (Ala.2003) ] .... “ ‘If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’ ” Pitts v. Gangi, 896 So.2d 433, 436 (Ala.2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998), quoting in turn earlier cases). In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section. Employees’ Retirement Sys. of Alabama v. Head, 369 So.2d 1227, 1228 (Ala.1979).’
“Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“ ‘when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute. Siegelman v. Chase Manhattan Bank (USA), Nat’l Ass’n, 575 So.2d 1041, 1045 (Ala.1991). When the language is clear, there is no room for judicial construction. Employees’ Retirement System [v. Head], 369 So.2d [1227,] 1228 [ (Ala.2002) ].’
“Water Works & Sewer Bd. of Selma, 833 So.2d 604, 607 (Ala.2002).”

Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009). Further, our supreme court has said recently of statutory construction:

“‘Our inquiry is governed by settled principles of statutory construction:
“ ‘ “ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’ ” ’
“Bright v. Calhoun, 988 So.2d 492, 497 (Ala.2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis omitted)).
“To determine legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, then there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001).”

Fluker v. Wolff, 46 So.3d 942, 953 (Ala.2010).

The severance tax applicable to mining and quarrying reads as follows:

“There is hereby levied, in addition to all other taxes imposed by law, a severance tax on the purchaser of all severed material severed from the ground and sold as tangible personal property. The tax shall be levied primarily to compensate the county for the use of its roads and infrastructure and also for the benefit, health, safety, and economic development of the county in which the severed material is severed and the proceeds thereof shall be distributed and allocated as provided in Section 40-13-58.”

§ 40-13-52, Ala.Code 1975.

For purposes of the severance tax, a “purchaser” is defined as “[a] person acquiring severed materials from a producer and liable for the tax imposed hereunder.” § 40-13-51(7), Ala.Code 1975. In turn, a “producer” is defined as “[a]n operator engaged in the sale of severed materials.” § 40-13-51(6), Ala.Code 1975. An “operator” is defined as “[a]ny person engaged in mining or quarrying operations in the state, whether individually, jointly, or through a parent, subsidiary, or affiliated company, or by agent, employee, or contractor.” § 40-13-51(4), Ala.Code 1975. The terms “mining” and “quarrying” are not defined in the statute, and there is no caselaw regarding the definitions of those terms as they are used in the statute authorizing the severance tax.

In determining, under the facts of this case, that the severance tax applied to Wilburn Quarries, the ALJ noted that the legislature’s stated purpose in levying the severance tax was “primarily to compensate the county for the use of its roads and infrastructure and also for the benefit, health, safety, and economic development of the county in which the severed material is severed....” The ALJ then went on to find as follows:

“It is thus irrelevant for purposes of the tax whether the materials were removed from their natural state by the seller, or were previously removed by another party. In either case, the severed materials are removed from a quarry and hauled over the county’s roads. The legislature intended for the tax to be paid to the county to maintain those roads. The tax thus applies in this case.”

In affirming the decision of the ALJ, the circuit court stated:

“It is undisputed that the materials being sold by [Wilburn Quarries] were severed from the earth or ground. The fact that [Wilburn Quarries] is not the sole entity responsible for the severing does not, in this Court’s opinion, relieve [it] from the responsibility of collecting the tax from the purchaser and remitting same to the [Department]. [Wilburn Quarries] is obviously completing the severance and engaging in the sale of severed materials. In this Court’s opinion, that constitutes a quarry operation and is consistent with the legislature’s intent in adopting [§ 40-13-52].”

We agree with the reasoning of the ALJ and of the circuit court. The plain and ordinary language of § 40-13-52 makes clear that the legislature intended to use the severance tax to compensate counties with mining and quarrying operations for the use of their roads and infrastructure and to allow each county to derive some financial benefit from the raw materials taken from within its boundaries.

The tax is levied upon the purchaser of the material that has been severed from its natural state. In this case, Wilburn Quarries processed the materials that had been severed from the ground during the mining operations and sold it to purchasers, as that term is defined in § 40-13-51, on whom the tax was levied. An “operator” is not required to be the entity that physically removes the materials from their natural state. The statute provides that an operator may be involved in mining or quarrying “individually, jointly, or through a parent, subsidiary, or affiliated company, or by agent, employee, or contractor.” § 40-13-51(4). In this case, Wilburn Quarries was able to take advantage of the materials found in the spoil piles that the mining operations, which had leased the land mined from Pate, had left on Pate’s property. As the circuit court pointed out, Wilburn Quarries was the entity that completed the severance, processed the material, and undertook the sale of the severed material. Therefore, Wilburn Quarries is the producer responsible for collecting the tax assessed by the purchaser of the severed material. At no other point in the process was there a purchaser of the severed materials who would be subject to the severance tax.

We conclude that Wilburn Quarries was a producer engaged in the sale of the severed materials subject to the severance tax and, thus, was responsible for the collection of the severance tax. Accordingly, the circuit court properly affirmed the decision of the ALJ, which upheld the final tax assessment of the Department.

Wilburn Quarries and its members assert that because the legislature did not specifically define the scope of activities that constitute “quarrying,” the severance tax as applied in this case is inherently ambiguous and should be construed in favor of Wilburn Quarries, as the taxpayer. As Wilburn Quarries points out, “[t]axing statutes and ordinances are to be construed strictly against the taxing authority and in favor of the taxpayer.” Chism v. Jefferson County, 954 So.2d 1058, 1066 n. 12 (Ala.2006); see also City of Pinson v. Utilities Bd. of City of Oneonta, 986 So.2d 367, 373 (Ala.2007). However, it is equally true that

“ ‘the court will indulge no strained construction to give effect to this rule where a fair interpretation of the legislative intent may lead to a contrary conclusion; arbitrary rules of construction are of little value when the real intention can be gathered from the act itself. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824 [ (1950) ].’ ”

State v. Morrison Cafeterias Consol., Inc. of Delaware, 487 So.2d 898, 902 (Ala.1985) (quoting State v. T.R. Miller Mill Co., 272 Ala. 135, 139, 130 So.2d 185, 188 (1961)). “Additionally, when the highest administrative officials charged with the duty of administering the tax laws have construed a tax statute, their construction should be given favorable consideration.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003) (citing Standard Dredging Corp. v. State, 271 Ala. 22, 28, 122 So.2d 280, 285 (1960); and State v. Birmingham Rail & Locomotive Co., 259 Ala. 443, 448, 66 So.2d 884, 889 (1953)).

As discussed previously, the legislature intended to collect a tax from purchasers of materials severed from their natural state. There is no dispute that the raw materials that Wilburn Quarries processed had been severed from their natural state and that Wilburn Quarries was the entity that sold the processed materials to the purchasers on whom the severance tax was levied. There is no other entity that logically can collect the severance tax. The Department’s application of the severance tax to the materials processed and sold by Wilburn Quarries is logical and represents a fair construction of the statute levying the severance tax. Accordingly, the circuit court did not act improperly in affirming the ALJ’s decision to uphold the final assessment of the Department.

For the reasons set forth above, the judgment of the circuit court is affirmed.

AFFIRMED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

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


author: BRYAN, Judge.

text:
    Cheryl HANCOCK v. Nancy T. BUCKNER, as commissioner of the Alabama Department of Human Resources, et al.
    2081008.
    Court of Civil Appeals of Alabama.
    May 14, 2010.

      Norbert H. Williams, Alabama State Employees Association, Montgomery, for appellant.
    Felicia M. Brooks, staff atty., Department of Human Resources; and George Beck, Jr., of Capell & Howard, P.C., Montgomery, for appellees.
   BRYAN, Judge.

Cheryl Hancock, the plaintiff below, appeals from a judgment dismissing her consolidated actions against the defendants below, Nancy T. Buckner, in her official capacity as the commissioner of the Alabama Department of Human Resources (“the commissioner”); Brandon Hardin, in his official capacity as the director of the Coffee County Department of Human Resources and in his individual capacity (“the director”); and Sharon Ficquette, in her official capacity as general counsel of the Alabama Department of Human Resources and in her individual capacity (“the general counsel”). We affirm in part, reverse in part, and remand.

On April 29, 2008, Hancock, a merit-system employee of the Alabama Department of Human Resources (“the Alabama DHR”) who was assigned to the Coffee County Department of Human Resources (“the Coffee County DHR”), filed the first of two actions in the Montgomery Circuit Court. In her first action, which was docketed as case number CV-08-66B and assigned to Circuit Judge Truman Hobbs, Jr., she sued the commissioner and the director. Her complaint in that action alleged that she had been notified by the director that she had been charged with dereliction of duty and that an administrative disciplinary hearing would be held regarding that charge. Her complaint further alleged that agents of the commissioner and the director had refused to allow her to inspect documents material to the charge made against her. Finally, her complaint alleged that agents of the commissioner and the director had subpoenaed Hancock’s cellular-telephone records from Alltel Corporation (“Alltel”) and her employment records from her secondary employer, Insight Treatment Program, Inc. (“Insight”), without lawful authority. As relief, Hancock’s complaint sought (1) an injunction compelling the commissioner and the director to allow Hancock to inspect documents material to the charge against her, (2) an injunction enjoining the commissioner and the director from proceeding with the disciplinary hearing pending the adjudication of Hancock’s action, (3) an injunction enjoining the commissioner and the director from using Hancock’s Alltel and Insight records in the administrative disciplinary proceeding against Hancock, and (4) a judgment declaring that the commissioner and the director lacked statutory authority to subpoena Hancock’s Alltel and Insight records.

On August 25, 2008, Hancock filed a second action in the Montgomery Circuit Court, which was docketed as case number CV-08-1302 and assigned to Circuit Judge Johnny Hardwick. In her second action, Hancock sued the commissioner, the director, and the general counsel. In addition to the facts alleged in the complaint in her first action, Hancock’s complaint in the second action alleged that the commissioner, the director, and the general counsel were using the administrative disciplinary proceeding against Hancock as leverage to compel the chairman of the Coffee County DHR Board to resign and that that conduct constituted extortion and an attempt to discipline Hancock for a nonmerit-based reason. In addition to the relief sought in the complaint in her first action, Hancock’s complaint in the second action sought a judgment declaring that the administrative disciplinary proceeding against Hancock constituted extortion and an attempt to discipline Hancock for a nonmerit-based reason.

Contemporaneously with the filing of her complaint in case number CV-08-1302, Hancock filed a motion for a temporary restraining order and a preliminary injunction enjoining the commissioner, the director, and the general counsel from holding an administrative disciplinary hearing regarding Hancock and from using Hancock’s Alltel and Insight records in the administrative disciplinary hearing pending the adjudication of the merits of her action. Judge Hardwick held a hearing regarding that motion on September 19, 2008. On October 1, 2008, Judge Hard-wick entered an order denying Hancock’s motion and placing case number CV-08-1302 on the administrative docket.

On October 17, 2008, Hancock petitioned this court for a writ of mandamus directing Judge Hardwick to vacate his October 1, 2008, order, to restore her action to the active docket, and to adjudicate the merits of her claims immediately. After calling for an answer, this court denied Hancock’s petition without opinion on November 18, 2008.

Thereafter, the commissioner, the director, and the general counsel moved to dismiss both of Hancock’s actions on the ground that they failed to state a claim upon which relief could be granted. After entering an order consolidating case number CV-08-663 and case number CV-08-1302, Judge Hobbs held a hearing regarding the motions to dismiss on June 16, 2009. On June 17, 2009, Hancock filed a pleading titled “Supplemental Submission to Court Clarifying Plaintiffs Legal Position.” That pleading stated, in pertinent part:

“1. Consistent with the complaint pending before this Court, Hancock is seeking declaratory relief from this Court in accordance with the statutory provisions found within the Declaratory Judgment Act codified in Ala.Code § 6-6-220 et seq. (1975), as codified within Ala.Code § 41-22-10 (1975), as contemplated by Rule [5]7, Ala. R. Civ. P. and/or any other statutory provision or rule by which Hancock may obtain a judicial determination concerning the legality of the [commissioner, the director, and the general counsel’s] action of obtaining her private cellular telephone records from ALLTEL Corporation and her employment records from Insight Treatment Program, Inc. by means of an administrative subpoena.”

Also on June 17, 2009, Judge Hobbs entered a judgment dismissing Hancock’s actions. The judgment stated:

“The Court held a hearing on this matter on June 1[6], 2009. At the hearing the parties presented their arguments to the Court. After considering the parties’ arguments and their briefs the Court finds itself with several concerns. First, this Court has reservations as to whether it has jurisdiction over this matter. The second concern is that the agency is not named as a party as required by the statute [Hancock] is traveling under.[] Thirdly, the Court finds it difficult to discern whether [Hancock] is challenging a rule of the agency or is instead seeking an eviden-tiary ruling from the Court. Lastly, Judge Hardwick has ruled in a similar, if not the same case.
“Even if the Court sets aside its jurisdictional concerns, the Court has been unable to find any law, and [Hancock] has provided no law, that would bar the use of the disputed evidence in question in a civil proceeding. Without a clear-cut legal mandate, the Court declines to tell an Administrative Law Judge how to conduct his or her hearing.
“Wherefore, despite the Court’s reservations about the propriety of the subpoenas, this matter is hereby dismissed.”
On July 29, 2009, Hancock appealed to this court.
“The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether ‘when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.’ Nance v. Matthews, 622 So.2d 297, 299 (Ala.1998); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A ‘dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003).

Hancock first argues that the trial court erred in dismissing her claim seeking a judgment declaring that the commissioner and the director lacked statutory authority to subpoena Hancock’s Alltel and Insight records (“the statutory-authority claim”). Although the trial court did not specify which ground or grounds mentioned in its judgment was the basis for its dismissal of Hancock’s consolidated actions, Hancock argues that the trial court erred if it based its dismissal of her statutory-authority claim on the ground that the trial court lacked subject-matter jurisdiction over that claim because, she says, the trial court did have jurisdiction over that claim because, she says, that claim was not barred by the exhaustion-of-administrative-remedies doctrine. See Department of Envtl. Mgmt. v. Coosa River Basin Initiative, Inc., 826 So.2d 111, 117-18 (Ala.2002) (holding that circuit court had subject-matter jurisdiction over a declaratory-judgment action against the Alabama Department of Environmental Management that was not barred by the exhaustion-of-administrative-remedies doctrine).

In City of Graysville v. Glenn, 46 So.3d 925 (Ala.2009), the supreme court stated:

“‘To be sure, Alabama recognizes the doctrine of exhaustion of administrative remedies. City of Huntsville v. Smartt, 409 So.2d 1353, 1357 (Ala.1982). “This doctrine ‘requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.’” Id. (quoting Fraternal Order of Police, Strawberry Lodge No. 10 v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975)).’

“Patterson v. Gladwin Corp., 835 So.2d 137, 141-42 (Ala.2002). There are recognized exceptions to that doctrine, including

“ ‘when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy is inadequate, or (4) where there is the threat of irreparable injury.’
“Ex parte Lake Forest Prop. Owners’ Ass’n, 603 So.2d 1045, 1046-47 (Ala.1992). This Court has also recognized an exception to the rule ‘where there is a defect in the power of the agency to act in any respect.’ Jefferson County v. Johnson, 333 So.2d 143, 149 (Ala.1976).”

46 So.3d at 929.

In the case now before us, Hancock’s statutory-authority claim sought a declaration regarding the interpretation of a statute and it raised “ ‘only questions of law and not matters requiring administrative discretion or an administrative finding of fact.’ ” City of Graysville v. Glenn, 46 So.3d at 929 (quoting Ex parte Lake Forest Prop. Owners’ Ass’n, 603 So.2d 1045, 1046-47 (Ala.1992)). Therefore, we conclude that Hancock’s statutory-authority claim was not barred by the exhaustion-of-administrative-remedies doctrine. See City of Graysville v. Glenn. Consequently, the trial court had subject-matter jurisdiction over that claim. See Department of Envtl. Mgmt. v. Coosa River Basin Initiative, Inc.

Hancock also argues that the trial court erred if it dismissed her statutory-authority claim on the ground that she had not made the Alabama DHR a party to her action. Hancock cited both § 41-22-10, Ala.Code 1975, and the Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975, as statutory bases for her statutory-authority claim. Although the literal language of § 41-22-10 requires that the agency be made a party to an action brought pursuant to that statute, the supreme court has held that § 41-22-10 is to be liberally construed. See Department of Envtl. Mqmt. v. Coosa River Basin Initiative, Inc., 826 So.2d at 117. Moreover, the Declaratory Judgment Act does not require that the agency be made a party to an action brought pursuant to it, and the Declaratory Judgment Act is a valid statutory basis for an action seeking declaratory relief with respect to an administrative agency. See Department of Envtl. Mgmt. v. Coosa River Basin Initiative, Inc., 826 So.2d at 117-18. Accordingly, we conclude that Hancock’s failure to make the Alabama DHR a party was not a valid ground for dismissing her statutory-authority claim.

Hancock also argues that the trial court erred if it dismissed her statutory-authority claim on the ground that it could not determine what relief that claim was seeking because, she says, that claim clearly stated that it sought a judgment declaring that the commissioner and the director lacked statutory authority to subpoena her Alltel and Insight records. Hancock’s statutory-authority claim asked the trial court to “[e]nter a declaratory judgment declaring that the [commissioner and the director] unlawfully obtained [Hancock’s] personal cellular telephone records from ALLTEL Corporation” and to “[e]nter a declaratory judgment declaring that the [commissioner and the director] unlawfully obtained privileged, non-public information of or concerning [Hancock] from Insight Treatment Program, Inc.” We conclude that Hancock’s complaint adequately indicated that the relief she was seeking included a judgment declaring that the commissioner and the director lacked statutory authority to subpoena her Alltel and Insight records.

Hancock also argues that the trial court erred if it dismissed her statutory-authority claim on the ground that Judge Hard-wick had already ruled on it because, she says, the record establishes that Judge Hardwick had not ruled on it. Judge Hardwick’s October 1, 2008, order entered in case number CV-08-1302 denied Hancock’s motion for a temporary restraining order and a preliminary injunction enjoining the commissioner, the director, and the general counsel from holding an administrative disciplinary hearing regarding Hancock and from using Hancock’s Alltel and Insight records at her administrative disciplinary hearing pending the adjudication of the merits of her action; it did not rule on her claim seeking a judgment declaring that the commissioner and the director lacked statutory authority to subpoena Hancock’s Alltel and Insight records. Accordingly, we conclude that Judge Hardwick’s October 1, 2008, order did not constitute a valid ground for dismissing Hancock’s statutory-authority claim.

Accordingly, the record does not establish that there is no set of facts Hancock could prove that would entitle her to relief on her statutory-authority claim. Therefore, we reverse the judgment of the trial court insofar as it dismissed that claim. See Lyons v. River Road Constr., Inc., 858 So.2d at 260. Although Hancock also presents argument regarding the merits of her statutory-authority claim, in reviewing the dismissal of an action for failure to state a claim, “[t]his Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail.” Lyons v. River Road Constr., Inc., 858 So.2d at 260. Therefore, we express no opinion regarding the merits of Hancock’s statutory-authority claim.

Hancock next argues that the trial court erred insofar as it dismissed her claim seeking a judgment declaring that her Alltel and Insight records were not admissible in her administrative disciplinary hearing (“Hancock’s evidence-admissibility claim”). A hearing officer in an administrative hearing has discretion regarding the admission of evidence and is not bound by the strict rules of evidence. See § 41-22-13, Ala.Code 1975, and Horn v. State Bd. of Exam’rs in Counseling, 689 So.2d 93, 94 (Ala.Civ.App.1996). Thus, Hancock’s evidence-admissibility claim did not fall within the exception to the exhaustion-of-administrative-remedies doctrine for claims that “ ‘raise[ ] only questions of law and not matters requiring administrative discretion or an administrative finding of fact’ ” or any of the other recognized exceptions. City of Graysville v. Glenn, 46 So.3d at 929 (quoting Ex parte Lake Forest Prop. Owners’ Ass’n, 603 So.2d at 1046-47). Therefore, we affirm the judgment of the trial court insofar as it dismissed Hancock’s evidence-admissibility claim because that claim was barred by the exhaustion-of-administrative-remedies doctrine.

Hancock also argues that the trial court erred insofar as it dismissed her claim seeking a judgment declaring that the disciplinary proceeding against Hancock constituted extortion and an attempt to discipline Hancock for a nonmerit-based reason. However, that claim did not fall within any of the recognized exceptions to the exhaustion-of-administrative-remedies doctrine. See City of Graysville v. Glenn. Therefore, we affirm the dismissal of that claim because it was barred by the exhaustion-of-administrative-remedies doctrine. Id.

Hancock has not argued that the trial court erred in dismissing any of her other claims; accordingly, we affirm the dismissal of those claims. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (‘“When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”).

In summary, we reverse the judgment of the trial court insofar as it dismissed Hancock’s statutory-authority claim; we affirm the judgment of the trial court in all other respects; and we remand the action for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.

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

      . Page Walley was the commissioner of the Alabama DHR when Hancock filed both of her actions; however, he subsequently resigned, and Nancy T. Buckner became commissioner. Pursuant to Rule 25(d), Ala. R. Civ. P., Buckner was automatically substituted for Walley.

      . See supra note 1.

      . The trial court was apparently referring to § 41-22-10, Ala.Code 1975, which provides:
      “The validity or applicability of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. In passing on such rules the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter.”
      (Emphasis added.)


author: PITTMAN, Judge.

text:
    R.Y. v. C.G. and B.G.
    2080975.
    Court of Civil Appeals of Alabama.
    May 14, 2010.

      Kelli F. McDaniel, Montgomery, for appellant.
    Johnnie Smith, Montgomery, for appel-lee.
   PITTMAN, Judge.

R.Y. (“the mother”) appeals from the Montgomery Juvenile Court’s denial of her motion to alter, amend, or vacate that court’s final judgment finding Z.Y. (“the child”) dependent, divesting the mother of custody of the child, and awarding custody to C.G. and B.G. We reverse and remand.

The record discloses that the juvenile court entered its final judgment in this case on June 19, 2009. Under Rule 1(b), Ala. R. Juv. P., and Rule 6(a), Ala. R. Civ. P., the mother was required to file her postjudgment motion by the end of the 14th day after June 19, which was Friday, July 3, 2009; however, that day was observed in 2009 as the Independence Day holiday, and the state’s judicial offices were closed on that day. Rule 6(a), Ala. R. Civ. P., further provides that when the last day of a party’s period to file a motion falls on a legal holiday, the period for filing extends until the end of the next day that is not a Saturday, Sunday, or legal holiday. Hence, the last day on which the mother could have timely filed a postjudgment motion was Monday, July 6, 2009.

The mother filed her motion on Monday, July 6, 2009, and the juvenile-court clerk stamped the motion as having been “received” at 4:55 p.m. that day. However, on July 7, 2009, the juvenile court, although apparently conceding that the mother’s postjudgment motion had been filed in a timely manner, nonetheless purported to deny the motion as “untimely” The court wrote the following order directly on the case-action-summary sheet:

“[The mother’s motion] to [alter, amend, or vacate was] filed out of time. Although the 14th day fell on Friday, 7/3/09 which was a state holiday, [the mother] had the option of filing the motion prior to expiration of 14 days or, in [the] alternative, of faxing [the] motion to [the] clerk on [the] 14th day which would have carried a date stamp of 7/3/09.[] Either would ensure timely filing. [The m]otion [was] filed at 4:55 P.M. 7/6/09. Motion is denied as untimely filed.”

The juvenile court’s denial of the mother’s postjudgment motion as “untimely” was in clear violation of Rule 6(a), Ala. R. Civ. P. See, e.g., Sanders v. Smitherman, 776 So.2d 68, 72 (Ala.2000) (concluding that materials were timely filed when submitted by a party two days after a due date that had been established by a trial court when that date and the day after were both holidays). However, our conclusion does not, in and of itself, require reversal. Rule 61, Ala. R. Civ. P., and Rule 45, Ala. R.App. P., require that this court examine whether the juvenile court’s error affects the “substantial rights” of the aggrieved party; if no such effect is found, the juvenile court’s judgment should not be reversed.

In her postjudgment motion, the first and last pages of which appear in the record on appeal, the mother asserted as a ground for altering, amending, or vacating the judgment that there was no clear and convincing evidence presented to support a finding of dependency, as was required by former § 12-15-65(f), Ala.Code 1975, in dependency cases filed before January 1, 2009. The mother also requested a hearing, which, under Rule 59(g), Ala. R. Civ. P., the juvenile court was required to provide.

Because the mother has challenged the sufficiency of the evidence to support the juvenile court’s finding of dependency, and the juvenile court heard the testimony of witnesses, we are unable to conclude that the juvenile court’s error is harmless as a matter of law. We further conclude that the mother’s motion has at least probable merit. Undisputed evidence was presented that tended to prove that during some periods preceding the initiation of this case, the child’s dependency might have been provable by clear and convincing evidence. However, the mother presented testimony and documentary evidence tending to prove that at least from the time this case was brought in August 2008, and likely for some time preceding that date, the mother’s home was suitable and appropriate for the child; that evidence included the report of more than one investigation by representatives of the State Department of Human Resources (“DHR”) that found that DHR intervention was “not indicated” and a report by a DHR investigator provided in support of this litigation that declared the mother’s home suitable and appropriate. Absent clear and convincing evidence supporting a finding of dependency, a juvenile court cannot divest a parent of his or her parental rights, see, e.g., L.M. v. D.D.F., 840 So.2d 171, 173 (Ala.Civ.App.2002); moreover, the child must be dependent at the time the juvenile court enters its judgment — not just in some periods preceding the initiation of the dependency proceeding. V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008).

Under Rule 59(g), the mother had a right to a hearing as to a timely filed postjudgment motion. In this case, the mother filed such a timely motion in which she asserted that the evidence did not support the juvenile court’s judgment; the juvenile court committed manifest error in determining, contrary to its own express reckoning, that the mother’s postjudgment motion was “untimely.” We further cannot conclude that the juvenile court’s error was harmless so as to warrant affirmance in spite of that error.

Because the record indicates that the juvenile court erroneously did not consider the merits of the mother’s postjudgment motion, we reverse the judgment of the juvenile court and remand the case for that court to hold a hearing, to consider the substantive issues raised in the mother’s postjudgment motion, and to rule on that motion in accordance with its findings following the hearing. In doing so, we do not reach the merits of the other issues the mother raises in this appeal. See Comalander v. Spottswood, 846 So.2d 1086, 1090 (Ala.2002).

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . The juvenile court's belief that a motion may currently be "filed” by facsimile transmission is, of course, contrary to Ex parte Tuck, 622 So.2d 929 (Ala.1993).


text:
    UNIVERSAL DEBIT & CREDIT CORPORATION v. LEEBERG, L.L.C.
    2090192.
    Court of Civil Appeals of Alabama.
    May 21, 2010.
    C. Steven Ball and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellant.
    Clifford M. Spencer, Jr., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Universal Debit & Credit Corporation (“Universal”) appeals from a June 16, 2009, order of the trial court, in which the trial court set aside a previous order compelling arbitration.

The record indicates the following. On July 29, 2004, LeeBerg, L.L.C. (“Lee-Berg”), filed an action against Universal alleging claims arising from Universal’s refusal to pay LeeBerg commissions on transactions carried out at certain automatic-teller machines (“ATM”) in Alabama. LeeBerg claimed that Universal was required to pay the commissions pursuant to an “ATM Independent Contractor Agreement” (“the contract”), executed in March 1997. LeeBerg and UDC ATMs, L.L.C. (“UDC”), a Virginia limited-liability company, were the two parties to the contract. The contract called for LeeBerg to solicit accounts for installation and service of UDC’s machines. For each ATM UDC installed as the result of an account secured by LeeBerg, UDC would pay Lee-Berg an “installation commission.” Thereafter, UDC would pay LeeBerg a “residual transaction commission” of 15 cents for every ATM transaction generated at the sites LeeBerg solicited.

The contract included an arbitration clause, which provided, in pertinent part, that “[a]ny dispute arising out of or related to this Agreement shall be exclusively submitted for binding arbitration in the state of Virginia under the Commercial Arbitration Rules of the American Arbitration Association.”

The record shows that LeeBerg’s understanding was that UDC had assigned the contract to Universal, and that Universal had paid the commissions as provided under the contract until September 2003. In July 2004, LeeBerg filed this action against Universal. In August 2004, Universal filed a motion to dismiss or, in the alternative, to stay proceedings and compel arbitration. Subsequently, the parties filed other motions and responses. For reasons not explained in the record, the trial court did not rule on any of the motions, and no activity took place in the case until March 2007, when Universal filed a second motion to dismiss based on LeeBerg’s alleged failure to prosecute the case. LeeBerg filed a response to the motion. The trial court did not rule on the motion, and the case lay dormant for another year.

On March 20, 2008, Universal requested a status conference. A status conference was held, after which the trial court entered a scheduling order but still did not rule on any of the pending motions. Lee-Berg went forward with discovery. Universal moved to stay discovery until the court ruled on the pending dispositive motions. Finally, on March 27, 2009, the trial court entered an order directing the parties to participate in arbitration. In the order, the trial court stated that “[t]he parties d[id] not dispute that the agreement at issue in this matter contain[ed] a valid arbitration clause.” It also noted, however, that LeeBerg contended that the contract was void because Universal was a foreign corporation that was not qualified to do business in Alabama and that, therefore, pursuant to § 10-2B-15.02, Ala.Code 1975, Universal could not enforce the contract. The trial court determined that any issues relating to the validity or “voidability” of the contract were to be addressed by the arbitrator.

The same day the order compelling arbitration was entered, LeeBerg filed a motion to set aside that order. In its motion to set aside, LeeBerg contended that the March 27, 2009, order had been proposed to the trial court by Universal and that it did not correctly state LeeBerg’s position. LeeBerg also noted that the trial court had not sought a proposed order from Lee-Berg. LeeBerg stated that, contrary to the language in the order, it did not agree that the arbitration clause was valid, and it did not believe that the entire contract was void. It pointed out that it had presented evidence indicating that Universal was involved in intrastate commerce, which, it asserted, would preclude arbitration in this case, and that the “threshold determination of commerce” had not yet been decided. LeeBerg argued that, because the issue whether Universal was involved in interstate commerce was unresolved, the order compelling arbitration was premature. Thus, LeeBerg asked that the March 27, 2009, order be set aside for a determination of whether the Federal Arbitration Act applied to this case. On June 16, 2009, the trial court entered an order granting LeeBerg’s motion to set aside the March 2009 order. Universal appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Universal contends that the trial court’s order setting aside its order compelling arbitration is a “de facto” denial of its motion seeking arbitration. We disagree.

An order denying a motion to compel arbitration is appealable as a matter of right. See Rule 4(d), Ala. R.App. P. In its brief on appeal, Universal asks this court to consider whether it was engaged in interstate commerce, whether the fact that it was not qualified to do business in Alabama renders the arbitration clause unenforceable, and whether it can enforce the arbitration clause despite its assertion that it is not a proper party defendant. None of those issues has been decided by the trial court.

This situation is analogous to an attempt to appeal from an order setting aside a default judgment. “An order granting a motion to set aside a default judgment is not a final judgment because it revives the matters in controversy between the parties; thus, ‘an order granting a motion to set aside a default judgment and proceed to trial is interlocutory and not appealable.’ ” Moore v. Strickland, [Ms. 2090047, April 23, 2010] (Ala.Civ.App.2010) (quoting Fisher v. Bush, 377 So.2d 968, 968 (Ala.1979)). Similarly, in this case, the June 2009 order setting aside the March 2009 order compelling arbitration revived the issues relating to whether the arbitration clause in the contract is valid and enforceable. The order gives the parties an opportunity to litigate those issues and the trial court the opportunity to make a ruling on those issues. After the issues regarding the applicability of the arbitration clause have been decided, the trial court may once again enter an order compelling arbitration. The June 2009 order was not, as Universal contends, a “de fac-to” denial of its motion to compel arbitration.

The trial court has not yet entered a final order denying or granting Universal’s motion to compel arbitration. Its order setting aside its previous order compelling arbitration is an interlocutory order, and, therefore, it is not appealable as a matter of right. See Wessex House of Jacksonville, Inc. v. Kelley, 908 So.2d 226, 229-30 (Ala.2005); and Rule 4(d), Ala. R.App. P. Accordingly, this appeal is due to be dismissed.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Section 10-2B-15.02, Ala.Code 1975, provides as follows:
      “(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.
      "(b) The failure of a foreign corporation to obtain a certificate of authority shall not impair the validity of any contract or agreement heretofore or hereafter entered into and consisting of a mortgage upon real property or an interest in real property in this state, and the note secured thereby, where the mortgage is insured by the Federal Housing Administration or guaranteed by the Veterans Administration, if the foreign corporation shall have thereafter obtained a certificate of authority. In all actions against a foreign corporation or against any person claiming under a foreign corporation by virtue of a void contract, the foreign corporation or person claiming under it shall be estopped from setting up the fact that the contract or agreement was made in violation of the law.”


author: PER CURIAM.

text:
    C.M.K. v. E.D.K.
    2090187.
    Court of Civil Appeals of Alabama.
    May 21, 2010.
    C.M.K., pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

On May 14, 2009, E.D.K. filed separate petitions in the Madison Probate Court (“the probate court”) seeking to adopt D.R.K. and T.A.K. (“the children”). In his petitions, E.D.K. alleged that he had been married to the children’s mother, T.R.K. (“the mother”), since November 2006, that the children’s father, C.M.K. (“the father”), had abandoned the children, and that the father “is on the run from the law and his whereabouts are unknown and cannot be ascertained after reasonable efforts.” The mother filed documents in which she consented to E.D.K.’s adoption of the children.

On May 15, 2009, the probate court entered a temporary order placing custody of the children with the mother and E.D.K. pending a dispositional hearing. The father was served with notice by publication, see Rule 4.3(d), Ala. R. Civ. P., of the pending adoption proceedings. On August 11, 2009, the probate court entered two separate judgments granting E.D.K.’s petitions and approving the adoptions.

On November 9, 2009, the father filed in this court a document indicating that he intended to appeal the probate court’s August 11, 2009, judgments; this court transferred that notice of appeal to the probate court for it to be filed in that court.

A notice of appeal from a probate-court judgment allowing an adoption must be filed within 14 days of the date of the judgment. § 26-10A-26(a), Ala.Code 1975 (“Appeals from any final decree of adoption shall be taken to the Alabama Court of Civil Appeals and filed within 14 days from the final decree.”); Ex parte A.M.P., 997 So.2d 1008, 1013 n. 3 (Ala.2008) (concluding that an appeal filed within 14 days of the denial by operation of law of a postjudgment motion taken in reference to an adoption judgment was timely filed). The father was required to file a notice of appeal by August 25, 2009, the 14th day following the entry of the August 11, 2009, adoption judgments. The earliest date on which the father could be said to have “filed” his notice of appeal is November 9, 2009, the date on which he erroneously submitted his notice of appeal to this court. Thus, it is clear that the father’s appeal of the adoption judgments was made well outside the 14 days allowed by § 26-10A-26(a), Ala.Code 1975. An untimely appeal must be dismissed. Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”); see also Flannigan v. Jordan, 871 So.2d 767, 770 (Ala.2003) (“A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute.”). Accordingly, we dismiss the father’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.