author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte McNEESE TITLE, LLC, et al. (In re James E. Atchison v. IPC Industries, Inc., et al.).
    1100764.
    Supreme Court of Alabama.
    Oct. 14, 2011.

      Jeffrey L. Luther of Luther, Crowe & Rainey, P.C., Mobile for petitioners.
    Donald G. Beebe of The Atchison Firm, PC, Mobile, for respondent.
   WOODALL, Justice.

McNeese Title, LLC, a Florida limited liability company owned and operated by Richard McNeese, and Richard McNeese (hereinafter referred to collectively as “McNeese”), and Peggy S. Owens petition this Court for a writ of mandamus, directing the Mobile Circuit Court to vacate its order denying the motions of McNeese and Owens to dismiss the action filed against them by Mobile County resident James E. Atchison and to enter an order dismissing the action for lack of in person-am jurisdiction. We grant the petition and issue the writ.

I. Factual and Procedural Background

This dispute arose out of Atchison’s purchase of two residential lots in the Villa Lago subdivision (“the subdivision”), which was originally a 14-acre tract of land in the Golf and Beach Resort of Sandestin, Florida. On September 29, 2005, Atchison signed two documents entitled “Sandestin Villa Lago Subdivision Home Purchase and Sale Agreement” (“the agreements”) for the purchase of two lots, namely, lots 61 and 81. Each of the agreements required Atchison to pay to McNeese Title a “non-refundable deposit” of $15,000. The seller was identified as C-D Jones & Company, Inc. (“C-D Jones”), of Destín, Florida. The agreements stated, in pertinent part:

“3. Payment of Purchase Price. The purchase price specified above shall be paid as follows:
“(a) Deposit. Upon complete execution of this Agreement, [Atchison] shall deposit with Seller’s escrow agent, McNeese Title, LLC, whose address is ... Destín, Florida ... (the ‘Agent’), that Deposit described above to be held until closing in a federally insured non-interest bearing account until closing.
“(b) Remainder. The remaining Purchase Price for the Lot along with [Atchison’s] closing costs shall be paid by cashier’s check or wire transfer of funds to Seller at the Closing described here.
“4. Closing. The closing of the Lot (the ‘Closing’) shall be held at the office of [McNeese Title], on such a date as the parties may hereafter agree, but in no event later than the Closing Date described above (unless extended pursuant to Paragraph 26 hereof), time being of the essence of this Agreement....
“26. Contingencies to Close. This contract and the obligations of the parties herein are specifically contingent upon the following:
“(b) The successful closing of all Lots within the subdivision on or before the Closing Date. In the event the closings of all Lots do not occur on or before the Closing Date, the Closing Date may be extended, at the option of Seller, for a period not to exceed sixty (60) days.”

(Emphasis added.)

According to Atchison, these agreements were sent to him by the “developers,” who, he says, “developed, marketed and sold the lots” in the subdivision. Atchison’s brief, at 4. He identifies those developers as CD Jones and 331 Partners, LLC. In that connection, Atchison also signed a “compliance agreement limited power of attorney,” designating Richard McNeese or Owens as Atchison’s “attorney in fact for [his] use and benefit, ... for the purpose of ... signing or initialing on [his] behalf, any and all documents affecting the closing or refinance of the [lots].” The closing was held on November 3, 2005, at which time Atchison allegedly paid McNeese “no less than $683,589.” At that time, however, many of the other lots in the subdivision had not closed, contrary to ¶ 26(b) of the agreements.

Eventually, Atchison sued a number of individuals and entities, including C-D Jones, 331 Partners, McNeese, and Owens, alleging that he had suffered damage as a result of activities conducted by C-D Jones and 331 Partners after the closing. Essentially, the counts against McNeese and Owens averred that McNeese knowingly misrepresented to Atchison just prior to closing that all the lots in the subdivision had sold and would close by the closing date for his lots as required by ¶ 26(b) of the agreements; that McNeese nevertheless accepted Atchison’s payments on the date of closing and paid the amount over to the developers without ensuring compliance with ¶ 26(b) of the agreements, thus resulting in damage to Atchison because of the post-closing activities of C-D Jones and 331 Partners.

McNeese and Owens moved to dismiss the action for lack of personal jurisdiction. See Rule 12(b)(2), Ala. R. Civ. P. Their motions were accompanied by affidavits addressing the limited extent of their contacts with Alabama. The trial court denied the motions to dismiss; this mandamus petition followed.

II. Discussion

“[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction.” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003). “A petitioner may be entitled to a writ of mandamus in such a case upon a showing of a clear legal right to an order dismissing the action against it.” Ex parte First Western Bank, 898 So.2d 701, 704 (Ala.2004). “ ‘The burden of establishing a clear legal right to the relief sought rests with the petitioner.’ ” Ex parte Dangerfield, 49 So.3d 675, 680 (Ala.2010) (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007)).

Jurisdiction over out-of-state defendants is acquired pursuant to Rule 4.2(b), Ala. R. Civ. P., which provides, in pertinent part:

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

In other words, “[t]his rule extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions.” Hiller Invs., Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006). Under this rule, the exercise of jurisdiction is appropriate so long as the out-of-state defendant has “ ‘some minimum contacts with this state [so that] ... it is fair and reasonable to require the person to come to this state to defend an action.’ ” Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 461 (Ala.1986) (quoting former Rule 4.2(a)(2)(I), Ala. R. Civ. P.).

According to McNeese and Owens, At-chison has failed to show that jurisdiction over them is proper in this case. Specifically, they argue:

“[I]n this case, [Atchison’s] Complaint and Amended Complaint are completely devoid of any factual allegations that would establish personal jurisdiction over the [Petitioners]. Instead, the Complaint and Amended Complaint contain only generic allegations that the Petitioners are subject to personal jurisdiction in Alabama, with no supporting factual allegations. Indeed, the Complaint and Amended Complaint contain no factual allegations whatsoever as to any contacts between the Petitioners and the State of Alabama. Based on this fact alone, Petitioners believe [At-chison’s] claims against them are due to be dismissed for want of personal jurisdiction, regardless of any other eviden-tiary submissions.”

Petition, at 9. We agree.

“This Court has explained the appropriate analysis and the parties’ respective burdens on a personal-jurisdiction issue as follows. ‘The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004).’ J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008).
“ ‘ “ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff’s complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).’ ”
“‘Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.” Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995) (“When a defendant files a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.”) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).’
“Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004) (emphasis added; footnote omitted).”

Ex parte Excelsior Fin., Inc., 42 So.3d 96, 103 (Ala.2010).

However, when the complaint fails to allege any jurisdictional basis, “there is nothing in the complaint ... that the court must consider as true and that therefore places [any] burden on [the defendant] to controvert by affidavit.” Excelsior, 42 So.3d at 104 (defendant need not present evidence of absence of jurisdiction when the complaint contains no jurisdictional averments).

Atchison does not direct us to any paragraphs of the complaint, as amended, that he contends specifically allege jurisdiction. However, according to Atchison, his complaint alleged that “the McNeese defendants were agents, representatives and co-conspirators of the developers and marketers associated with the development and sale of [the subdivision].” Atchison’s brief, at 11 (citing ¶¶ 39, 40, 42, 57-60, and 61-82 of his complaint).

Although it is true that personal jurisdiction may, in some cases, be obtained by “imputing conduct to an alleged coconspirator who has personally performed no overt act in Alabama,” Ex parte Reindel, 963 So.2d 614, 624 (Ala.2007), “it is well established in Alabama that a plaintiff cannot establish personal jurisdiction under a conspiracy theory unless the plaintiff ‘plead[s] with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.’ ” Matthews v. Brookstone Stores, Inc., 469 F.Supp.2d 1056, 1066 (S.D.Ala.2007) (quoting Ex parte McInnis, 820 So.2d 795, 806-07 (Ala.2001)). See also Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459 (Ala.2003) (plaintiff is not entitled to discovery on jurisdictional issue where the complaint does not “‘at least allege facts that would support a colorable claim of jurisdiction.’ ” (quoting Schenck v. Walt Disney Co., 742 F.Supp. 838, 840 n. 1 (S.D.N.Y.1990))).

In that connection, Atchison’s first amended complaint avers, in pertinent part:

“39. On November 3, 2005, after McNeese Title, McNeese and Owens, actually and/or constructively received Atchison’s money, to-wit no less than $683,589, C-D Jones and 331 Partners engaged in a collusive transaction whereby 331 Partners purported to sell lots in Villa Lago Subdivision, including Lots 61 and 81, to C-D Jones in exchange for the money previously transferred by Atchison and the other buyers of Villa Lago lots, (hereinafter referred to as the ‘331/C-D Jones Land Transfer’).
“40. At the time of the 331/C-D Jones Land Transfer, 331 Partners and C-D Jones were partners, joint ventur-ers and co-conspirators in a fraudulent scheme to sell the lots to Atchison and other similarly situated buyers under circumstances constituting a fraudulent transfer under the Uniform Fraudulent Transfers Act.
“42. The transfer made through the 331/C-D Jones Land Transfer was done with knowledge and/or participation by Defendants ... McNeese Title, McNeese and Owens, and with the actual intent to hinder, delay or defraud Atchison, who was then or subsequently became a Creditor of Debtors 331 Partners, C-D Jones and/or McNeese Title.
“57. The transfer of assets from C-D Jones to Defendant McNeese Title was done with knowledge and/or participation by Defendant McNeese Title and with actual intent to hinder, delay or defraud Atchison, who was then or subsequently became a Creditor of C-D Jones.
“58. After McNeese Title received the assets of C-D Jones and/or Atchi-son, McNeese and/or Owens received all or part of said assets without payment of reasonably equivalent value through dividends and/or distributions from McNeese Title.
“59. In the case of each distribution by McNeese Title to Defendant McNeese and/or Owens the dividend(s) or distribution(s) were done under circumstances constituting a fraudulent transfer under the Uniform Fraudulent Transfers Act.
“60. At the time of each distribution by McNeese Title to McNeese and/or Owens, said Defendant(s) was an Insider of McNeese Title and the dividend(s) or distribution(s) which was received by-said Defendant(s) was made and accepted under circumstances constituting a fraudulent transfer under the Uniform Fraudulent Transfers Act.”

(Emphasis added.)

These paragraphs contain no jurisdictional averments. To be sure, ¶ 40 does use the terms “partners,” “joint ventur-ers,” and “co-conspirators.” However, the allegations in these paragraphs are directed solely to the merits of the claims against C-D Jones and 331 Partners, that is, they do not purport to identify a basis for jurisdiction. In other words, they allege no “ ‘overt acts within the forum taken in furtherance of the conspiracy.’ ” Matthews v. Brookstone Stores, Inc., 469 F.Supp.2d at 1066 (quoting Ex parte McInnis, 820 So.2d at 806-07 (emphasis added)).

Moreover, ¶ 40 fails even to mention McNeese. Indeed, Atchison states in his brief in support of the petition: “Because this Petition involves only the challenge to jurisdiction filed by McNeese Title, LLC, Richard McNeese and Peggy Owens, ... discussion will be limited to their involvement in the sale of the lots with references to other parties only as needed.” Atchi-son’s brief, at 2 n. 1. However, without integrating the specific activities of McNeese and Owens with those of the entities of which they are alleged to be agents or coconspirators, it is difficult — if not impossible — to impute the conduct of such others to McNeese and Owens. Thus, the complaint contains no specific averments of conspiracy or agency.

Similarly, although it mentions McNeese in passing, ¶ 39 is devoted to allegations concerning C-D Jones and 331 Partners. The allegations are directed entirely to the merits of the claims against those defendants and do not purport to reveal how the selling of the lots in the subdivision, which is located in Florida, might form a basis for jurisdiction in Alabama over any defendant.

Paragraphs 42 and 57 aver in virtually identical terms that Richard McNeese or McNeese Title knew about, and participated in, the alleged sales of lots/transfer of assets in order to “defraud Atchison.” They do not allege that such sales or transfer — or any other relevant activity— occurred in Alabama. The averments in ¶¶ 58-60 are similarly restricted to the merits of the case, that is, they merely allege that distributions were made from McNeese Title to Richard McNeese and/or Owens “under circumstances constituting a fraudulent transfer under the Uniform Fraudulent Transfers Act.” Thus, they are irrelevant for jurisdictional purposes.

Paragraphs 61-82 of the complaint, which are not quoted above, are as juris-dictionally insignificant as the paragraphs just discussed. Paragraphs 69-71 aver that Richard McNeese made certain misrepresentations to Atchison but fail to disclose the mode or location of those conversations. Likewise, ¶¶ 72-73 aver that Atchison executed a power of attorney in favor of McNeese but allege no specifics regarding the location or manner of that transaction. In essence, ¶¶ 61-82 merely purport to describe the manner in which McNeese allegedly breached “contractual obligations” to Atchison. Conspicuously absent are references to the situs of any relevant conduct of McNeese or to the identity of the party initiating the transactions. Such factors would be material for jurisdictional purposes, as this Court has noted. See, e.g., Hiller Invs., Inc. v. Insultech Group, Inc., 957 So.2d at 1119 (the first-contact factor is “highly significant”); Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1265 (Ala.1998) (jurisdiction was proper where the foreign defendant initiated the business contact with the Alabama resident); and Ex parte Am-South Bank, N.A., 675 So.2d 1305, 1308 (Ala.1996) (discussing Steel Processors, Inc. v. Sue’s Pumps, Inc., Rentals, 622 So.2d 910 (Ala.1993), in which this Court found no personal jurisdiction “where (1) the contractual relationship was initiated by the Alabama plaintiff, (2) ‘the repair project in Florida was developed by an Ohio business; [3] the repairs were made in Florida; and [4] no goods or services went out of Florida’ ”).

In short, Atchison’s first amended complaint failed to allege any basis for the exercise of in personam jurisdiction over McNeese and Owens and, therefore, “place[d] [no] burden on [McNeese and Owens] to controvert [anything] by affidavit.” Ex parte Excelsior, 42 So.3d at 104. Because the first amended complaint contains no factual averments to the effect that McNeese and Owens purposefully directed their activities at Alabama, we need not analyze the evidence they offered in support of their motions. Id. Consequently, McNeese and Owens have demonstrated a clear legal right to an order dismissing the action against them.

III. Conclusion

For the above-stated reasons, we grant the petition and direct the trial court to dismiss the claims against McNeese and Owens based on a lack of in personam jurisdiction.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

The main opinion begins its analysis by quoting the following argument made by McNeese Title, LLC, and Richard McNeese (hereinafter referred to collectively as “McNeese”) and Peggy S. Owens:

“ ‘[T]he Complaint and Amended Complaint contain no factual allegations whatsoever as to any contacts between the Petitioners and the State of Alabama. Based on this fact alone, Petitioners believe [James E. Atchison’s] claims against them are due to be dismissed for want of personal jurisdiction, regardless of any other evidentiary submissions.’ ”

82 So.3d at 674. The main opinion then states that it agrees with this argument. I do not.

The main opinion embraces the notion that a complaint that fails to allege grounds for personal jurisdiction must be dismissed based merely upon this fact. In so doing, I believe it recognizes a new basis for dismissal of a claim, one that does not fit within either Rule 12(b)(2) . or Rule 12(b)(6), Ala. R. Civ. P.

Rule 12(b)(6) provides that a complaint should be dismissed if it “fail[s] to state a claim” cognizable under Alabama law. That is not what is at issue here. The question of in personam jurisdiction is a question that, instead, is governed by Rule 12(b)(2).

Unlike Rule 12(b)(6), Rule 12(b)(2) does not entitle a defendant to dismissal upon a plaintiffs “failure to state” personal jurisdiction, but only if there is in fact a lack of personal jurisdiction. Accordingly, for a defendant to be entitled to a dismissal there must at least be some evidentiary showing sufficient to satisfy the court that, as a matter of fact, Alabama courts do not have personal jurisdiction over the defendant.

The purpose of this Court’s holding in Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004), was to explain the circumstances under which the defendant will have been deemed to have made a sufficient evidentiary showing to carry the day. On neither its facts nor its express holding can Covington Pike Dodge be said to address whether a defendant is entitled to the dismissal of a complaint solely because the complaint contains no express allegations as to personal jurisdiction. We are made aware of no case holding as to a state court of general jurisdiction that a rule of procedure comparable to Alabama’s Rule 12(b)(2) provides a basis for the dismissal of a complaint based merely on the failure of the complaint to allege facts regarding personal jurisdiction.

Instead, Covington Pike Dodge addressed the issue of which would prevail as between mere allegations in a complaint, on the one hand, and sworn averments presented in opposition thereto by a defendant, on the other hand. Covington Pike Dodge and its progeny do not address the question of the appropriate outcome when a defendant has made no averments in support of a motion under Rule 12(b)(2) but, instead, merely alleges a lack of personal jurisdiction or, as here, seeks to rely merely on the fact that the complaint contains no allegations in favor of personal jurisdiction. Similarly, this Court’s decision in Ex parte Excelsior Financial, Inc., 42 So.3d 96, 103 (Ala.2010), relied upon by the main opinion, states only that “ ‘[t]he plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant.’ ” (Quoting J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008).) Nothing in Covington Pike Dodge or Excelsior states that “[t]he plaintiff has the burden of pleading that the trial court has personal jurisdiction over the defendant.” I believe today’s opinion incorrectly reads such an additional requirement into Excelsior, Covington Pike Dodge, and Rule 12(b)(2).

Quoting Covington Pike Dodge, 904 So.2d at 229 (quoting in turn Wenger Tree Service v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002)), the Court in Excelsior explained that, “ ‘[i]n considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits’ ” and that, “ ‘where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ ” Excelsior, 42 So.3d at 103 (emphasis and internal quotation marks omitted). Although Excelsior and Wenger Tree Service correctly observe that “a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits,” nothing in either of those cases holds that there must be allegations in the plaintiffs complaint regarding the basis for personal jurisdiction over the defendants. The point of both cases — indeed, all the related cases cited in Excelsior — is that when a complaint does contain allegations setting forth potential bases for the exercise of personal jurisdiction, a defendant can prevail on a Rule 12(b)(2) motion only if it controverts those allegations with evidence. Excelsior then goes on to explain that it is when sufficient allegations of grounds for personal jurisdiction are not “left standing” in the complaint after a comparison is made with the defendant’s evidentiary submissions that the plaintiff must meet the evidentiary submissions of the defendant with evidence of its own in order to avoid a dismissal of the complaint. “ ‘[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.” ’ ” Excelsior, 42 So.3d at 103 (quoting Covington Pike Dodge, 904 So.2d at 229, quoting in turn Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)) (emphasis omitted; emphasis added). Nothing in Excelsior (or for that matter Cov-ington Pike Dodge or related cases) states that when a defendant does not put on a prima facie evidentiary showing of lack of personal jurisdiction, the plaintiff nonetheless labors under a pleading requirement as to personal jurisdiction that, if not satisfied, necessitates the dismissal of the plaintiffs complaint upon the defendant’s mere request.

I note that later in the Excelsior opinion the Court states that it is “do[ing] something Excelsior has failed to do — analyzing] the [plaintiffs’] complaint for specific allegations that relate to personal jurisdiction over Excelsior.” 42 So.3d at 103. The Court undertook this analysis in Excelsior, however, not because every complaint must contain allegations of personal jurisdiction, but because in Excelsior itself the defendant did make a prima fa-cie evidentiary showing and, under the principles laid out in Covington Pike Dodge, it became necessary for this Court to determine if there were allegations in the complaint “left standing” in the face of that evidentiary showing that would provide a sufficient basis for personal jurisdiction.

The main opinion contains the following statement:

“[W]hen the complaint fails to allege any jurisdictional basis, ‘there is nothing in the complaint ... that the court must consider as true and that therefore places [any] burden on [the defendant] to controvert by affidavit.’ Excelsior, 42 So.3d at 104 (defendant need not present evidence of absence of jurisdiction when the complaint contains no jurisdictional averments).”

82 So.3d at 674. I believe that when the entirety of the quoted sentence from Excelsior is considered in context, its meaning is not the meaning suggested by the main opinion. The full statement in Excelsior, without any omission, reads as follows: “Consequently, there is nothing in the complaint dealing with conspiracy that the court must consider as true and that therefore places the burden on Excelsior to controvert by affidavit.” 42 So.3d at 104 (emphasis added). In other words, the Court in Excelsior was not saying in some general sense that “there is nothing in the complaint” in the way of jurisdictional allegations and that, therefore, the defendant has no burden of putting on any evidence in order to “join the issue” of the trial court’s personal jurisdiction over it. Instead, the statement is one in which the Excelsior Court is specifically explaining that there are no allegations in the complaint “dealing with conspiracy” and that, therefore, it was not necessary for the success of the defendant’s evidentiary showing that it specifically address that potential ground.

It also is important to note the narrow focus of the Court’s statement. The statement is made in the context of the Court’s having first determined that the defendant had joined the issue of in personam jurisdiction by submitting an affidavit sufficient to constitute a “prima facie evidentiary showing” that there were not sufficient contacts between the defendant and the State of Alabama to confer jurisdiction. Bearing in mind the principle, as stated earlier, that, even when a defendant has made an prima facie evidentiary showing, “a court must consider as true the allegations of plaintiffs complaint not controverted by the defendant’s affidavits,” 42 So.3d at 103, the Excelsior Court simply was engaged in the process of determining whether there were, in that case, allegations in the complaint that would support in personam jurisdiction and that were “not controverted by the defendant’s affidavits.” 42 So.3d at 101. The Court first looked at the fact that the complaint contained allegations of fraudulent conduct in Alabama committed by Excelsior through an agency relationship with other defendants. The Court observed, however, that the affidavits submitted on behalf of Excelsior did in fact “expressly deny an agency relationship with the other defendants and therefore refute the allegations” of agency in the complaint. 42 So.3d at 103-04. On that basis, the Court reasoned that “the petition for the writ of mandamus filed by Excelsior establishes a clear legal right to the dismissal of the complaint as to it to the extent that personal jurisdiction was alleged in the complaint to have been based upon an agency relationship.” 42 So.3d at 104 (emphasis added).

The Court then expressly considered whether, in light of the prima facie evi-dentiary showing otherwise contained in Excelsior’s affidavits, there was any other sufficient basis for personal jurisdiction alleged in the complaint that was not defeated by evidentiary submissions of the defendant. The Court noted one other potential basis suggested by the complaint in this regard, namely, the allegation in the complaint of a conspiracy. The Court, however, found that the allegation of conspiracy was “devoid of the requisite specificity.” 42 So.3d at 104. It was for this reason that the Court found it unnecessary to go further and specifically consider whether the evidentiary averments in Excelsior’s affidavits would have been sufficient to counter the allegations of conspiracy:

“[T]he allegation of conspiracy in the complaint is devoid of the requisite specificity. ... Consequently, there is nothing in the complaint dealing with conspiracy that the court must consider as true and that therefore places the burden on Excelsior to controvert by affidavit.”

42 So.3d at 104 (emphasis added). To emphasize, the Court merely was explaining that there was nothing in the complaint “dealing with conspiracy” that Excelsior was obligated “to controvert by affidavit” in order to prevail on its motion, having already made a general prima facie eviden-tiary showing of lack of jurisdiction over it.

In the next paragraph of its opinion, the Excelsior Court simply restates and summarizes what it has theretofore explained in more detail:

“Excelsior argues extensively that the evidence presented by the parties does not show any action by Excelsior purposefully directed toward Alabama and that its contacts with Alabama resulted from the unilateral activity of third persons. However, the complaint, other than the allegations of agency, which were refuted without contradiction from the Tillises, does not contain any allegations that Excelsior, independent of an agency relationship, purposefully directed its actions toward Alabama. In the absence of such allegations, we need not analyze the evidence as Excelsior suggests.”

42 So.3d at 104 (emphasis added). Read in context with the analysis that preceded it, the emphasized sentence — part of a restatement and summary of that analysis— simply means that, in the absence of sufficient allegations regarding the conspiracy, we need not have analyzed the evidence presented by Excelsior to determine if it specifically rebutted conspiracy as a potential basis for personal jurisdiction.

Thus, I disagree with the holdings in the main opinion that a defendant is entitled to the dismissal of a complaint against it based merely upon a motion asserting the absence of sufficient jurisdictional allegations in the complaint and that, in order to obtain such a dismissal, a defendant has no burden of initially coming forward with an evidentiary showing of a lack of personal jurisdiction. Notwithstanding the disagreement with these holdings, I can agree with the result reached in this particular case because it is not one in which these particular holdings are necessary to the result. Specifically, this is not a case in which the defendant has failed to make a prima facie evidentiary showing of lack of personal jurisdiction over it.

In point of fact, the complaint and amended complaint in this case actually do contain “generic allegations that the Petitioners are subject to personal jurisdiction in Alabama.” In order to counter this general allegation that the petitioners are subject to personal jurisdiction in Alabama, the defendants, McNeese and Owens, submitted an affidavit from Richard McNeese averring that “McNeese Title is not licensed to do business in Alabama and has never done business in Alabama,” “does not have offices in Alabama, and has never actively pursued business in Alabama or otherwise advertised in Alabama,” “owns no real property in Alabama,” does not hold bank accounts in Alabama, and does not employ Alabama citizens. The affidavit continues by explaining that “McNeese Title provides closing, title, and escrow services for transactions involving real property in Florida” and that “McNeese Title has never served as title agent, closing agent, and/or escrow agent for real property located in any state other than Florida.” Finally, Richard McNeese’s affidavit states that his “only contacts with Alabama are rare communications made on behalf of McNeese Title and/or McNeese law firm, or when I travel through Alabama on trips.” An affidavit from Owens to similar effect also was submitted. Clearly, these affidavits are of sufficient substance and breadth to provide a prima facie evidentiary showing of a lack of personal jurisdiction by Alabama courts over McNeese and Owens.

The question in this case, as it was in Excelsior, then becomes whether the plaintiff, Atchison, put on contrary evidence. As in Excelsior, he did not. It therefore falls to this Court, as it did to the Court in Excelsior, to consider whether there are allegations in the complaint (1) that have not specifically been rebutted by the evidentiary submission of the defendants and, therefore, are “left standing” and (2) that are of a nature sufficient to provide a basis for the exercise of personal jurisdiction over the defendants. As in Excelsior, there are not. Specifically, just as in Excelsior, there are allegations touching upon conspiracy that are not controverted by the defendants’ evidentiary submission. Just as in Excelsior, however, those allegations lack the specificity required by law and therefore are not sufficient to provide a basis for the exercise of personal jurisdiction over the defendants. Accordingly, I agree with the result reached by the main opinion.

      . 331 Partners, LLC, is a Florida limited liability company, having its primary place of business in Mobile.

      . According to Atchison, Owens is an officer or employee of McNeese Tide.

      . As the defendants, McNeese and Owens, themselves put it in their petition in this case, "once the defendant makes a prima facie showing that the Court lacks personal jurisdiction, the plaintiff must then substantiate any jurisdictional allegations with competent proof.” Petition, at 8, citing Ex parte Citizens Prop. Ins. Corp., 15 So.3d 511, 515 (Ala.2009) (emphasis added). The petition goes on to say that, "because Petitioners have presented a pri-ma facie evidentiary showing that they are not subject to personal jurisdiction in Alabama, the burden shifts back to the Plaintiff to establish personal jurisdiction by competent proof.” Petition, at 10 (emphasis added).

      . Although somewhat general in nature, the allegations in this regard in the complaint are indeed "factual allegations.” I therefore cannot agree with the assertion by McNeese and Owens as quoted in the main opinion that " ‘the Complaint and Amended Complaint contain no factual allegations whatsoever as to any contacts between the Petitioners and the State of Alabama.' ” 82 So.3d at 674 (emphasis added).


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    SMITH’S SPORTS CYCLES, INC. v. AMERICAN SUZUKI MOTOR CORPORATION.
    1100400.
    Supreme Court of Alabama.
    Oct. 14, 2011.

      John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.
    Melissa Fletcher Allaman of Nelson, Mullins, Riley & Scarborough LLP, Tallahassee, Florida; and Dent M. Morton of Burr & Forman, LLP, Birmingham, for appellee.
   BOLIN, Justice.

Smith’s Sports Cycles, Inc. (“Smith”), appeals from a judgment in a nonjury trial in favor of American Suzuki Motor Corporation (“Suzuki”) on Smith’s claim that Suzuki wrongfully terminated the parties’ franchise agreement.

I. Facts and Procedural History

Smith and Suzuki entered into a written franchise agreement, effective February 14, 1989, authorizing Smith to operate a Suzuki dealership in Tuscaloosa. Pursuant to the franchise agreement, Suzuki supplied motorcycles, all-terrain vehicles, and utility vehicles manufactured by it to Smith, who, in turn, sold those products to the general public. Smith also sold the products of other manufacturers.

On April 17, 2006, Suzuki sent Smith a “Notice of Default and Opportunity to Cure.” The notice listed six areas of the parties’ franchise agreement as to which Suzuki deemed Smith to be in default, mostly dealing with the appearance of Smith’s dealership facility. Suzuki demanded that Smith take certain actions to cure the default within 180 days. On June 27, 2006, Suzuki sent another letter to Smith stating that Smith remained in default of the franchise agreement because Smith had taken none of the requested actions.

On October 20, 2006, Suzuki issued a “Notice of Termination” to Smith, informing Smith that it intended to terminate the franchise agreement based, in part, on the appearance of and the deteriorating condition of Smith’s dealership facility. Smith subsequently sued Suzuki, alleging that the nonrenewal or termination of the franchise agreement constituted a breach of the franchise agreement and that the termination was in violation of the Alabama Motor Vehicle Franchise Act, § 8-20-1 et seq., Ala.Code 1975 (“the Franchise Act”). The trial court conducted a 12-day bench trial. After hearing the evidence, the trial court entered a judgment in favor of Suzuki on Smith’s breach-of-contract claim, concluding that there was not substantial evidence that Suzuki had breached any provision of the franchise agreement. The trial court also entered a judgment in favor of Suzuki on Smith’s claim that Suzuki had violated the Franchise Act. The trial court noted in its judgment that the franchise agreement “is terminated effective 42 days from the entry of this judgment.” Smith appeals.

II. Standard of Review
“When evidence is presented ore tenus, the trial court is ‘ “unique[ly] positioned] to directly observe the witnesses and to assess their demeanor and credibility.’” Ex parte T.V., 971 So.2d 1, 4 (Ala.2007) (quoting Ex parte Fann, 810 So.2d 631, 633 (Ala.2001)). Therefore, a presumption of correctness attaches to a trial court’s factual findings premised on ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008)....
“ ‘However, the ore tenus standard of review has no application to a trial court’s conclusions of law or its application of law to the facts; a trial court’s ruling on a question of law carries no presumption of correctness on appeal.’ Ex parte J.E., 1 So.3d at 1008 (citing [Ex parte] Perkins, 646 So.2d [46,] 47 [(Ala.1994)], and Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)). This Court ‘ “review[s] the trial court’s conclusions of law and its application of law to the facts under the de novo standard of review.” ’ Id. (quoting Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005)).”

Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010).

III. The Franchise Act

“The purpose of the [Franchise] Act is clear. It is to protect the state’s citizens from abuses by motor vehicle manufacturers and dealers, and, to that end, to regulate manufacturers and dealers and the dealings between manufacturers and their dealers.” Sutherlin Toyota, Inc. v. Toyota Motor Sales USA, Inc., 549 So.2d 460, 461 (1989). Section 8-20-5 of the Franchise Act governs cancellations, modifications, and terminations of franchise relationships; it states, in pertinent part:

“(a) Notwithstanding the terms, provisions, or conditions of any agreement or franchise or notwithstanding the terms or provisions of any waiver, no manufacturer shall cancel, terminate, modify, fail to renew, or refuse to continue any franchise relationship with a licensed new motor vehicle dealer unless the manufacturer has:
“(1) Satisfied the notice requirement of this section.
“(2) Acted in good faith as defined in this chapter.
“(B) ... [G]ood cause for the cancellation, termination, modification, nonrenewal, or noncontinuance.
“(b) Notwithstanding the terms, provisions, or conditions of any agreement or franchise or the terms or provisions of any waiver, good cause shall exist for the purposes of a termination, cancellation, modification, nonrenewal, or non-continuance when:
“(1) There is a failure by the new motor vehicle dealer to comply with a provision of the franchise which provision is both reasonable and of material significance to the franchise relationship, provided that the manufacturer first acquired actual or constructive knowledge of such failure not more than 180 days prior to the date on which notification is given by the manufacturer pursuant to the requirements of this section.
“(c) The manufacturer shall have the burden of proof for showing that it has acted in good faith, that the notice requirements have been complied with, and that there was good cause for the franchise termination, cancellation, modification, nonrenewal, or noncontinuance.”

(Emphasis added.)

IV. Discussion

The trial court determined that Suzuki provided sufficient evidence demonstrating that Smith had violated two provisions of the parties’ franchise agreement: Section 1.4, dealing with the appearance and maintenance of the dealership facility, and Section 3.3, dealing with the service area and equipment. Additionally, the trial court concluded that Suzuki had complied with the requirements of § 8-20-5. The dis-positive issue on appeal is whether Suzuki met the requirements set forth in § 8-20-5 for termination of a franchise relationship.

Section 3.3 of the franchise agreement states:

“Section 3.3 Service Area and Equipment. [Smith] shall maintain an appropriate sized service department which shall be painted, neat and properly organized to insure efficient operation and inspire consumer confidence. [Smith] shall equip this department with the appropriate and necessary shop equipment, furniture, Suzuki ‘Special’ tools and those tools used in normal day to day operations.”

Suzuki’s April 17, 2006, letter to Smith regarding Section 3.3 asking Smith to take certain actions to cure what it termed a default states, in pertinent part:

“Smith is in breach of these provisions because the service department is not of an appropriate size, is not painted, and is not neat and properly organized. [Smith] is also in breach of these provisions because the assembly and set-up guides for Suzuki products are poorly organized and not in use; the assembly and set-up area is littered with debris and old parts; tools are not stored neatly when not in use; Suzuki PDI [prede-livery-instruction] certificates are not organized separately from other manufacturers; assembly guides and bulletins are not in binders and available for setup staff; warranty parts are not easily identifiable and are difficult to locate; and the warranty parts retention area is disorganized, inefficient and messy.”

The letter went on to list the actions Smith needed to take within 180 days to “cure” the default:

“3. Each technician work area will be kept neat[,] clean and organized.
“4. The work areas will be located within easy access of the receiving area, vehicle storage, exits and parts supply. “5. A technician work in progress storage area will be provided.
“6. The work areas shall include, at a minimum, a workbench, tool storage, vehicle lifts, trash cans, air outlets, electrical outlets, and non-skid floor space.
“7. Parts stored around the service office and entrance should be cleared away.
“8. Debris and all non-warranty parts should be thrown out.
“9. Warranty parts area should be established and designated by manufacturer.
“10. Parts over 120 days from claim paid should be thrown out.
“11. All other parts should be tagged with full information for easy identification.”

The trial court stated the following regarding the service area of the dealership facility and the equipment addressed in Section 3.3 of the franchise agreement:

“The evidence established that [Smith] did not comply with these reasonable provisions. It was further established that the failure to organize the area led to set-up errors and a failure to perform recall or remedial repair work on equipment that could lead to safety hazards. This was a breach of the agreement that was not cured as reasonably required. The notice provision was met, the action was taken in good faith, and there was good cause for the termination under this ground.”

Section 1.4 of the franchise agreement states:

“Section 1.4 Appearance and Maintenance. [Smith’s] place of business will at all times be maintained so as to present a good image for [Smith] and Suzuki. It is [Smith’s] responsibility to maintain an attractive store for the benefit of the customer, [Smith], and Suzuki. [Smith] acknowledges that modern marketing studies show that an attractive, well-lighted, neat and clean store will attract more customers and contribute more to the development and growth of [Smith’s] business.”

Suzuki’s “cure” letter, dated April 17, 2006, states:

“Within 180 days of the date of receipt of this letter, the showroom, both sales offices, and the service area will be cleaned and all materials, parts and tools organized and neatly stored. All POP [point-of-purchase display material] will be properly, and neatly, displayed. All nonfunetioning lighting fixtures will be replaced or repaired, and [Smith] will propose a plan to [Suzuki] to upgrade and/or replace the current lighting system. In addition, all motorcycles and other debris on the surrounding property [will] be removed ... and/or properly disposed of, or stored.”

In its letter dated October 20, 2006, terminating the franchise agreement, Suzuki provided the reasons it contended Smith remained in breach of the franchise agreement:

“[Smith] is in breach of this provision because the showroom is not well lighted, or neat and clean. In addition, the two sales offices are not organized and are littered with papers. There is miscellaneous POP scattered on the showroom floor, especially in the area between the sales offices. As outlined in detail in section VI below, the service area is also not neat and clean. Also, the property surrounding the dealership facility is littered with more than 100 motorcycles in various states of disas-sembly and repair. [Smith] has not cleaned the showroom, the two sales offices, or the service area. Parts and tools are not organized or neatly stored. There are nonfunctioning light fixtures and [Smith] has not proposed a plan to American Suzuki to upgrade and/or replace the current lighting system. The property surrounding the facility is still littered with disassembled and/or broken motorcycles.”

Smith argues on appeal that the trial court improperly applied § 8-20-5(b)(1), Ala.Code 1975, which states that a manufacturer may terminate a dealer franchise provided the manufacturer “first acquired actual or constructive knowledge of such failure not more than 180 days prior to the date on which notification is given by the manufacturer.” In other words, § 8-20—5(b)(1) requires that a manufacturer not premise a termination decision on a breach that is more than 180 days stale before notice is given. Smith points out that Suzuki gave notice of termination of the parties’ franchise agreement on October 20, 2006. However, Smith maintains that Suzuki had notice of the appearance issues and the deteriorating condition of the dealership as early as January 2005, clearly more than 180 days before it gave Smith notice of the termination of the franchise agreement.

The trial court stated the following regarding Smith’s argument:

“[Smith] argues (rightly so) that the [Franchise Act] prohibits a manufacturer from terminating an agreement if it does not take prompt action when it first learns of a default under the agreement. Stated otherwise, the manufacturer may not use a stale breach or default to terminate a franchise agreement, defined as one that occurred more than 180 days prior to notification. But appearances that were acceptable or tolerated in 1985 may not be in 2006, as the standards and expectations of the consumer may evolve. So long as the requests for modifications are reasonable and made in good faith, the contract must be followed. Here, under the particular facts of this case, the deficiencies under § l.k and § 3.3 of the agreement were both continuous and evolving, and the 180-day requirement of § 8-20-5(b)(1) was met.
“The evidence supports the reasons given for termination. [Smith] specifically acknowledged that ‘an attractive, well-lighted, neat and clean store will attract more customers and contribute more to the development and growth of [Smith’s] business.’ § 1.4. [Smith] believed that the way it presented products in 1985 would be sufficient for 2006 and beyond. Suzuki disagreed, and repeatedly tried to get [Smith] to change the appearance of the business to increase sales of Suzuki products. [Smith] rejected virtually all efforts to change the way it presented and sold Suzuki products, including turning down incentives and declining cooperative advertising funds. Consistent with this position, [Smith] refused to make substantive changes to the appearance of the dealership as required, including refusing to remove or dispose of old unworkable motorcycles and debris from an area outside the building. While [Smith] believed such action was unwarranted and unnecessary, Suzuki established that its request regarding appearance and maintenance was reasonable and consistent with the obligations in the franchise agreement.
“Suzuki could have chosen to ignore the appearance issues, and perhaps would have done so if sales were acceptable. But the franchise agreement obligated [Smith] to conform to reasonable requests for improvements to at least make an effort to sell more Suzuki products. The response of [Smith] to the notice was consistent — it defiantly contested any efforts by Suzuki to modify the presentations of products. [Smith] perhaps believed any changes would be futile, but the contract at least obligated it to make reasonable attempts to accommodate the reasonable requests. This was not done, and consequently, there was a breach of § 1.4 that was not cured. The notice provisions was met, the action was taken in good faith, and there was good cause for the termination under this ground.”

(Emphasis added.)

Although Alabama state courts have yet to address the time-notification requirement set forth in § 8-20-5 as it relates to continuous and evolving breaches, other courts whose jurisdictions have similar statutes have addressed the issue. See, e.g., Walters v. Chevron U.S.A., Inc., 476 F.Supp. 353, 357 (N.D.Ga.1979), aff'd, 615 F.2d 1135 (5th Cir.1980) (“[T]ime limitations are imposed to preclude a franchisor from basing termination or nonrenewal upon ‘old and long-forgotten events.’ ”). In Walters, the federal district court addressed the issue of an ongoing repeated violation of a franchise agreement between Walters and Chevron, requiring Walters to maintain its service-station premises, including its bathrooms, in good appearance and in a clean and orderly condition. The court acknowledged that the first violations occurred more than 120 days before Chevron gave its notice of termination. Walters argued that notice under those circumstances was, therefore, untimely. The court disagreed, preferring to treat each instance of noncompliance as a separate violation. See also Gruber v. Mobil Oil Corp., 570 F.Supp. 1088, 1092 (D.C.Mich.1983) (“The time limitation is intended ‘to preclude a franchisor from basing termination or non-renewal upon old and long forgotten events.’ ”). In Mobil Oil, Gruber, the franchisee, failed to abide by the hours-of-operation provision of the parties’ lease agreement and failed to operate its service station in a clean, safe, and healthful manner. Mobil sent Gruber a notice of termination. Gruber argued that the notice was untimely because Mobil first acquired knowledge of the violations more than 120 days before the notice of termination. The court rejected Gruber’s argument, reasoning that the 120-day provision

“is intended to ‘preclude a franchisor from basing termination or non-renewal upon old and long forgotten events.’ [Citation omitted.] When the alleged failure to conform with the lease is ongoing, occurring within and prior to the 120-day limitation, then the breaching event is not considered stale, but rather, viewed as a new ground for terminating the relationship each time the franchisee fails to comply.... If the Court were to rule otherwise, then either (1) a franchisee’s carelessness or willful breach will be rewarded if it continues beyond the time period, or (2) franchisors will be encouraged to terminate all breaches of the lease within 120 days of its first occurrence without giving the franchisee the opportunity and time to make reasonable efforts to remedy a breach.”

Mobil Oil, 570 F.Supp. at 1092. See also Amoco Oil Co. v. D.Z. Enters., Inc., 607 F.Supp. 595, 602 (E.D.N.Y.1985) (“[I]t is clear ... that the trademark violations are ongoing and continuing, and not one or two isolated incidents.... Again, where there are repeat occurrences of the violative conduct, each new event is a ground for termination.”).

In the instant case, the appearance problems with Smith’s dealership began to occur a number of years before Suzuki gave notice of its intent to terminate the franchise agreement. Those problems were brought to Smith’s attention on different occasions by Suzuki’s representatives, who apparently tried to work with Smith on correcting the problems. Jim Gotham, Suzuki’s former district sales manager, testified that Smith’s dealership facility was deteriorating in 2001 and that it continued to deteriorate until Gotham left Suzuki in 2008. Tom Decker, Suzuki’s regional sales manager, testified that the appearance of Smith’s dealership facility continued on a downward spiral and that it got progressively worse from 2005 through 2006. Four different Suzuki representatives visited Smith’s dealership in June 2006 to monitor the appearance issues and to urge Smith’s compliance with the franchise agreement. Smith, however, declined to make any of Suzuki’s requested changes. Photographs introduced at the trial depicted the following: crates and debris stacked on the side of the service building; the side entrance blocked with trash, clutter, and debris; garbage and debris scattered in the parking lot; oil leaking from a tank into the parking lot; trash piled high in the area behind the dealership; disorganized and cluttered desks; overturned batteries and old containers leaking contents onto the ground; disorganized tools; etc. Because the appearance problems with Smith’s dealership were both evolving and continuous, Suzuki is not precluded from terminating the franchise relationship based on the fact that it had knowledge of those problems 180 days before giving actual notice of termination. To hold otherwise would allow Smith to continue to operate the dealership in a manner inconsistent with, and in violation of, the franchise agreement.

The trial court further determined that Suzuki had good cause for terminating the franchise relationship and that Suzuki acted in good faith in terminating the franchise relationship. Section 1.4 of the franchise agreement specifically states that Smith’s dealership “will at all times be maintained so as to present a good image for [Smith] and Suzuki.... [Smith] acknowledges that modern marketing studies show that an attractive, well-lighted, neat and clean store will attract more customers and contribute more to the development and growth of [Smith’s] business.” Section 9.3 of the franchise agreement provides that Suzuki may terminate the franchise agreement based on Smith’s “failure to keep the dealership in a proper state of repair and in an orderly, clean and attractive condition and appearance.” Section 8-20-5(b)(l) of the Franchise Act states that “good cause shall exist for the purposes of a termination” when “[t]here is a failure by the [dealer] to comply with a provision of the franchise which provision is both reasonable and of material significance to the franchise relationship.” Clearly, the provision of the franchise agreement requiring Smith to keep the dealership in an attractive, neat, and clean condition is both reasonable and material to the parties’ franchise relationship. See, e.g., Weisenburger v. Amoco Oil Co., 534 F.Supp. 673, 676 (D.C.N.D.1982) (“Amoco’s cleanliness and appearance standards were material, reasonable and essential to the development and maintenance of its public image and marketing strategy.”).

The Franchise Act also requires that a manufacturer act in good faith when terminating a franchise relationship:

“Good faith under the [Franchise] Act means: ‘Honesty in fact and the observation of reasonable commercial standards of fair dealing in the trade as is defined and interpreted in paragraph (l)(b) of Section 7-2-103.’ § 8-20-3(7), Code of Alabama (1975). Section 7-2-103(l)(b) is the definitional section of Alabama’s Uniform Commercial Code. It provides that ‘ “good faith” in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.’ ”

Carroll Kenworth Truck Sales, Inc. v. Kenworth Truck Co., 781 F.2d 1520, 1528-29 (11th Cir.1986). Moreover, the issue whether a manufacturer acts in good faith in seeking to terminate a franchise agreement is an issue for the trier of fact. 781 F.2d at 1528-29.

Suzuki sought to terminate the parties’ franchise relationship based on alleged breaches of six sections of the franchise agreement. The trial court, after hearing the evidence, determined that Smith had breached only two sections of the franchise agreement — Section 1.4 and Section 3.3, which required Smith to keep its dealership facility in general, and its service department in particular, neat, clean, and well organized. The fact that the trial court determined that Smith had not violated the other four sections as alleged by Suzuki does not mean that Suzuki did not act in good faith in alleging those grounds as a basis for seeking termination. The trial court’s determination that Suzuki acted in good faith is subject to the ore tenus rule, and the trial court’s decision regarding Suzuki’s good faith is supported by the record.

Based on the foregoing, the judgment of the trial court terminating the parties’ franchise relationship is due to be affirmed. Smith also argues on appeal that the trial court exceeded its discretion when, at the close of all the evidence, it entered a judgment as a matter law on Smith’s breach-of-contract claim. This argument is without merit. Smith alleged in its complaint that Suzuki’s nonrenewal or termination of the franchise agreement constituted a breach of that agreement. Smith’s breach-of-contract claim was predicated on an alleged breach by Suzuki. As the trial court noted, “there is no substantial evidence that [Suzuki] breached any provision of the agreement which resulted in any damage to [Smith].” Accordingly, the trial court’s judgment in favor of Suzuki on Smith’s breach-of-contract claim is also due to be affirmed.

AFFIRMED.

WOODALL, STUART, MURDOCK, and MAIN, JJ., concur.

MALONE, C.J., recuses himself.

      . The statute at issue in Walters, 15 U.S.C. § 2802(b)(2)(A)(i), has a 120-day notice provision.

      . Mobil Oil involved the same statute as Walters. See supra note 1.


author: PITTMAN, Judge.

text:
    Brenda J. ESCALONA v. Hector J. ESCALONA.
    2100106.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2011.

      Bryan S. Blackwell, Dothan, for appellant.
    Warren Rowe, Enterprise, for appellee.
   PITTMAN, Judge.

Brenda J. Escalona (“the former wife”) and Hector J. Escalona (“the former husband”) were divorced in March 2001. At the time of the divorce, the former husband had retired from the Army and was employed as a helicopter-pilot instructor at Fort Rucker. The former wife was unemployed. The divorce judgment, among other things, awarded the former wife half of the former husband’s military-retirement pay and ordered the former husband to pay the former wife $1,000 per month in periodic alimony, plus $500 per month in rehabilitative alimony for 48 months. The record indicates that the former wife commenced a post-divorce proceeding in 2002 (in a case designated as case no. DR-2000-188.01), but the record of that proceeding is not before this court.

In April 2007, the former husband filed a petition to suspend his periodic-alimony payments, alleging that he had suffered a serious head injury on March 20, 2007, when an automobile collided with the motorcycle he was riding. The former husband averred that the injury had required him to undergo brain surgery, had necessitated the removal of part of his skull, and had rendered him unable to work for an indefinite period. He asserted that he would “most likely be unable to return to work in any capacity, much less to his old job as a flight instructor.”

Following a hearing at which the former wife failed to appear, the trial court determined that the former wife had been served and had had notice of the proceeding and that there had been a material change in circumstances since the time of the divorce. The court ordered that the former husband’s periodic-alimony obligation be suspended indefinitely but added that, if the former husband were ever able to return to employment at a wage comparable to his previous wage, then his periodic-alimony obligation would be restored. Five months later, the former wife filed a motion seeking relief from the judgment, alleging that she had not been served with the former husband’s petition to suspend his periodic-alimony obligation. Following a hearing on the former wife’s motion, the trial court vacated its earlier judgment.

The former wife answered the former husband’s petition and counterclaimed, seeking to have the former husband held in contempt for failure to comply with a court order entered in case no. DR-2000-188.01 and requesting an increase in periodic alimony. The former wife moved to substitute the judge to whom the case had been assigned (“the trial court judge”) with the judge who had presided over the original divorce action and the 2002 postdi-vorce proceeding (“the previous judge”). The trial court denied the former wife’s motion to substitute.

The trial court conducted a hearing on the former husband’s petition and the former wife’s counterclaims. The evidence was undisputed that the former husband had not worked for three months after the accident and that he had been grounded from flying and was incapable of being a flight instructor but that he had been employed as a classroom instructor at Fort Rucker at the same salary he had been drawing as a flight instructor; therefore, he had suffered no financial loss as a consequence of his injuries. The former husband admitted that, pursuant to the trial court’s order suspending his periodic-alimony obligation, he had not paid the former wife periodic alimony from July 2007 to August 2008, but he testified that he had subsequently made a lump-sum payment to the former wife reflecting 13 months of unpaid periodic alimony.

The former wife acknowledged that the former husband had made a lump-sum periodic-alimony payment to her, but she said that his payment had been in an amount less than the amount he owed. She could not remember the amount she had received from the former husband, and she provided no documentation to support her testimony that there was an amount still due and owing. The former wife also testified that the former husband had failed to pay her $6,000, which, she said, represented the last 12 months of the former husband’s obligation to pay rehabilitative alimony of $500 per month for 48 months. During questioning of the former wife by her counsel, the trial court interrupted and stated the following:

“THE COURT: I said I would not [interrupt], but I find it necessary to do it. I am looking at a petition now, I know the law to be that you cannot file successive petitions seeking the same relief. I’m looking at a petition filed on [the former wife’s] behalf through [different counsel] in March of 2002. Specifically Paragraph 4 says: ‘[The former husband] is in willful, deliberate, and contemptuous violation of said decree in that he has failed and refused to pay rehabilitative periodic alimony in the amount of $500 a month.’
“Now, that issue was raised through a prior petition. I don’t see any court order signed by [the previous judge], but I do see that he made an entry after a hearing. It says ‘parties announce settlement and shall file appropriate documents within thirty days.’ I don’t know what the settlement was, but I’m telling you that that’s history. Okay?”

During questioning by the former husband’s counsel, the former wife again mentioned the $6,000 in rehabilitative alimony that, she claimed, the former husband had not paid. The following then occurred:

“Q. [By the former husband’s counsel:] You heard what the Court said up there; that he wouldn’t listen to any more of that; that there was an order up there where you asked for it way back there and there was a settlement reached. Did you not hear that?
“A. I heard what the Judge said. I have proof otherwise.
“Q. Well, you heard what the Judge—
“THE COURT: Ma’am, I didn’t say he’s paid it. I’m just telling you that was raised in a prior petition and proceeding before the Court and it was settled, and that’s for [the previous judge] to — I don’t know why there’s no settlement documents or any order entered on that. But he’s got a record he can rely on. I don’t know what a transcription of that record would reflect as far as the announced settlement, but it was announced as settled.”

The former wife testified that after the divorce she had moved to Charleston, South Carolina, and had obtained employment as a security officer at the Medical University of South Carolina. She stated that her base pay was $30,692.06; in 2009, she earned $36,471.39, which included overtime pay. Finally, the former wife testified that she had incurred $4,000 in attorneys’ fees, as well as travel expenses for coming to court three times at a cost of $1,093 each time.

On June 8, 2010, the trial court entered a judgment denying the former husband’s petition to suspend his periodic-alimony obligation, denying the former wife’s counterclaim for an increase in periodic alimony, denying the former wife’s request to hold the former husband in contempt for failing to obey a court order to pay rehabilitative alimony, and denying “all other requested relief not otherwise addressed.” The former wife filed a timely post-judgment motion that was denied by operation of law, after which she timely appealed. The former wife raises three issues on appeal.

I.

The former wife argues that the trial court erred in failing to reassign the case to the previous judge, who had presided over the divorce and the first postdi-vorce proceeding, because the previous judge was, she said, “more familiar with the case and could better address the issues.” The former wife cites no authority in support of that argument, and it is without merit. In the absence of grounds for the trial-court judge’s recusal, or in the absence of the trial-court judge’s inability to proceed under Rule 63, Ala. R. Civ. P.— neither of which the former wife alleged or established — there was no requirement that the trial court reassign the case to the previous judge.

II.

The former wife contends that the trial court erred in failing to award her an attorney fee and travel expenses “for defending a case which was predicated upon a falsehood and mistaken assumptions as to the ... loss of income by the former husband.” The trial court evidently concluded that the former husband’s petition to suspend his periodic-alimony obligation was not “predicated upon a falsehood” because its judgment states:

“2. The [former husband’s] motion to modify/terminate alimony, when filed, was predicated upon the factual averment that [the former husband] lacked the financial ability to comply with his support obligation due to prospective unemployment resulting from physical disability after a serious vehicular accident.”

(Emphasis added.)

“The law regarding an award of an attorney fee is well settled:
“ ‘The award of attorney’s fees in a [modification] case is a matter within the sound discretion of the trial court, which will not be reversed unless an abuse of that discretion is shown’....
“Murray v. Murray, 598 So.2d 921, 922-23 (Ala.Civ.App.1992) (citations omitted).”

Bertram v. Doss, 709 So.2d 1274, 1278 (Ala.Civ.App.1998). Because the record supports the trial court’s implicit conclusion that the former husband’s petition was not “predicated upon a falsehood,” the trial court did not act outside its discretion in declining to award the former wife an attorney fee.

III.

The former wife insists that the trial court erred by refusing to consider whether the former husband should be held in contempt for failing to obey an order that he pay $6,000 in rehabilitative alimony — an order that, the former wife says, was entered in case no. DR-2000-188.01. The former wife raised this issue in a post-judgment motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial:

“1. [The former wife] avers that there is an error in [the] judgment, in that the court refused to address the issue of arrearages on rehabilitative alimony previously awarded by [the previous judge] in the initial divorce action. The court correctly stated that the arrearage issue was addressed in the second proceeding under this case number in that there was an arrearage assessed. However, that arrearage was never paid.
“2. [The former husband] failed and refused to pay the $6,000.00, which represented one (1) year of rehabilitative alimony. It was the intention of [the former -wife] to have the court address [the former husband’s] contempt in the current proceeding. However, the court refused to relitigate it, stating that the matter had already been litigated.”

(Emphasis added.) It appears that the trial court was mistaken in stating that the record in case no. DR-2000-188.01 (which the trial court had consulted during the trial) contained “no settlement documents or any order entered on [rehabilitative alimony].” The record in the present case contains the following “Amended Order,” entered on February 11, 2004, in case no. DR-00-188.01:

“[The former wife], by and through her attorney, has filed a motion to correct [Scrivener’s] Error and after reviewing the file, this Court enters the following order:
“‘2. The [former husband] is ORDERED to pay the sum of $500 per month as temporary alimony, terminating April BO, 2005.’ ”

Because the trial court declined to consider whether the former husband had contemptuously refused or failed to pay rehabilitative alimony, based solely upon its mistaken belief that there was no judgment in case no. DR-2000-188.01 ordering the former husband to make such payments (and, therefore, that there was no “willful, continuing failure or refusal of [the former husband] to comply with a court’s lawful ... order... or command that, by its nature is still capable of being complied with,” Rule 70 A(a)(D), Ala. R. Civ. P.), we reverse that portion of the judgment denying the former wife’s request to hold the former husband in contempt, and we remand this cause with instructions to determine whether the former husband has paid his rehabilitative-alimony obligation in full and, if not, whether he should be held in contempt.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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


author: MOORE, Judge.

text:
    Ex parte Mark D. DAVIS. (In re Mark D. Davis v. Tonya S. Blackstock).
    2100515.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2011.

      Mark D. Davis, pro se.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for respondent.
   MOORE, Judge.

This is the second time these parties have been before this court. See Davis v. Blackstock, 47 So.3d 796 (Ala.Civ.App.2007) (“Davis I”). In Davis I, Mark D. Davis (“the father”) appealed from a judgment of the Lauderdale Circuit Court (“the Alabama trial court”) modifying custody of the child born of his marriage to Tonya S. Blackstock (“the mother”) and ordering him to pay child support. In Davis I, we set forth the history of this case as follows:

“The father and the mother married on November 11, 2000. Four months later, while they were residing in Tennessee, the father and the mother separated. The mother was pregnant with the child at the time of the separation. Subsequently, a petition for divorce was filed in the Chancery Court for Lawrence County, Tennessee (‘the Tennessee trial court’). Before the Tennessee trial court ruled on the divorce petition filed with that court, the father and the mother moved - to Alabama, where the mother gave birth to the child on December 27, 2001.
“On February 15, 2002, the Tennessee trial court entered a judgment divorcing the father and the mother. In essence, the Tennessee judgment granted the father and the mother joint custody, with the mother receiving primary physical custody and child support. In June 2002, while the father, the mother, and the child continued to reside in Alabama, the father petitioned the Tennessee trial court for a modification of its February 15, 2002, judgment with regard to custody. On September 3, 2003, the Tennessee trial court modified its divorce judgment by granting the father equal physical custody on a four-day rotating basis and terminating the father’s child-support obligation.
“The mother appealed the September 3, 2003, judgment to the Tennessee Court of Appeals. On October 12, 2004, the Tennessee Court of Appeals issued an opinion and an order affirming that portion of the September 3, 2003, judgment that modified custody and vacating that portion of the judgment that modified the father’s child-support obligation. The Tennessee Court of Appeals remanded the case for a hearing to determine which parent should be the ‘primary residential parent’ and whether child support should be awarded. See Davis v. Davis, (No. M2003-02312-COA-R3-CV) (Tenn.Ct.App.2004) (not reported in S.W.3d). The Tennessee trial court never acted on this mandate.
“On February 6, 2006, the mother filed a petition for modification of custody and child support in the Lauderdale Circuit Court (‘the Alabama trial court’). In response, on February 23, 2006, the father filed a petition for a custody hearing in the Tennessee trial court. Both parties filed motions to dismiss the other’s petition on the ground of lack of subject-matter jurisdiction. The mother argued that the Tennessee trial court no longer had jurisdiction over the custody issue because the father, the mother, and the child had resided in Alabama for the preceding four years. The father argued that the Alabama trial court could not exercise jurisdiction because the Tennessee court was continuing to exercise its jurisdiction. The Alabama trial court granted the father’s motion to dismiss, but it set aside its dismissal order after the mother alleged that the Tennessee trial court had yielded jurisdiction to Alabama as a more convenient forum and had dismissed the father’s custody-hearing petition.
“The parties proceeded to a custody hearing in the Alabama trial court. At the hearing, the father requested that the mother be held in contempt for failing to abide by the Tennessee trial court’s September 3, 2003, judgment; he also requested that he be awarded primary physical custody of the child. The mother denied that she was in contempt and requested that she be awarded primary physical custody of the child. Following ore tenus proceedings, the Alabama trial court entered a judgment on September 1, 2006. The Alabama trial court’s judgment maintained joint legal custody, but it awarded the mother primary physical custody of the child and awarded the father visitation. The Alabama trial court further ordered the father to pay child support and to pay one-half of the uninsured-medical expenses of the child. The judgment also provided the father a credit of $1,338.93 to be applied to his share of the child’s uninsured-medical expenses.”

47 So.3d at 797-98 (footnote omitted).

On appeal in Davis I, the father argued that the Alabama trial court had lacked subject-matter jurisdiction to modify custody of the child because:

“1) ... the Tennessee trial court still had jurisdiction over the custody dispute because it had not yet acted on the mandate from the Tennessee Court of Appeals and 2) ... under Tennessee’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (‘the Tennessee UCCJEA’), the Tennessee trial court had continuing exclusive jurisdiction over the custody issue.”

47 So.3d at 798.

This court rejected those arguments, however, holding that, because the September 3, 2003, judgment of the Chancery Court for Lawrence County, Tennessee (“the Tennessee trial court”), had been affirmed by the Tennessee Court of Appeals on the issue of custody, that issue had been finally resolved. Davis I, 47 So.3d at 798. We also held that “the Tennessee trial court no longer retained exclusive, continuing jurisdiction over the custody issue at the time the mother filed her custody-modification petition in the Alabama trial court.” 47 So.3d at 799 (relying on Tenn.Code Ann. § 36-6-217 and Ala.Code 1975, § 30-3B-202). Thus, we concluded that the Alabama trial court had properly exercised jurisdiction over the custody issue; we did not, however, address whether the Alabama trial court had jurisdiction to determine the child-support issue. This court reversed the judgment with regard to the custody modification.

After we issued our decision in Davis I, the mother petitioned the Alabama Supreme Court for a writ of certiorari. The supreme court agreed with this court that the Alabama trial court’s “assumption of jurisdiction was consistent with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, Ala.Code 1975, § 30-3B-101 et seq.” Ex parte Blackstock, 47 So.3d 801, 803 n. 1 (Ala.2009). It, however, determined that this court had erred in reversing the Alabama trial court’s determination of custody, and it reversed this court’s judgment and remanded the case to this court for proceedings consistent with its opinion. 47 So.3d at 813-14. On remand from the supreme court, this court affirmed the Alabama trial court’s modification of custody. Davis v. Blackstock, 47 So.3d 816 (Ala.Civ.App.2010) (“Davis II”). With regard to the child-support issue, however, we reversed the Alabama trial court’s judgment and remanded the case for the Alabama trial court to recalculate the father’s child-support obligation. 47 So.3d at 817. This court’s certificate of judgment in Davis II was issued on April 21, 2010.

On November 10, 2010, the father filed in the Alabama trial court a motion for a hearing and for modification of the 2006 judgment entered by the Alabama trial court. He argued that the 2006 judgment violated his constitutional rights, and he also alleged that a material change in circumstances had occurred since the entry of the 2006 judgment that justified a modification of custody. The father also requested that the Alabama trial court take steps necessary to protect the child from inappropriate conduct allegedly occurring at the mother’s house. After a hearing, the Alabama trial court entered a judgment on November 18, 2010, finding that the father was in arrears with regard to his child-support obligation in the amount of $14,246, plus $2,314.14 in accumulated interest. The Alabama trial court also set the father’s child-support obligation at $435 per month. The Alabama trial court finally noted:

“It further appears to the court that pursuant to the appellate decisions heretofore issued that there remains an issue regarding the imputation of health insurance cost in the calculation of child support pursuant to Rule 32[, Ala. R. Jud. Admin.,] that must be applied. The court hereby sets further hearing on this matter.... The court will hear argument in regard to said issue as well as any other pending motions.”

On November 23, 2010, the mother answered the father’s motion seeking to modify custody. The father amended his motion on December 27, 2010.

On February 25, 2011, the father filed a motion to vacate ab initio the 2006 judgment. The father alleged that the 2006 judgment was void for lack of subject-matter jurisdiction because of the mother’s noncompliance with various provisions of the Uniform Interstate Family Support Act (“the UIFSA”), § 30-3A-101 et seq., Ala.Code 1975, and the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975. The father also requested that the Alabama trial court consider newly discovered evidence. The mother responded to the father’s motion to vacate on February 28, 2011. The father filed a reply to the mother’s response on March 3, 2011. The father’s motion to vacate was denied on March 4, 2011. The father filed a petition for a writ of mandamus with this court on March 8, 2011. On March 14, 2011, the Alabama trial court stayed its consideration of all issues pending the outcome of the father’s mandamus petition. On March 16, 2011, the father moved the Alabama trial court to set aside its November 18, 2010, order. On March 18, 2011, the mother responded to the father’s motion to set aside. On March 22, 2011, this court, believing that the Alabama trial court’s November 18, 2010, judgment had been entered in a separate action initiated by the father (see supra notes 1 and 2), entered an order stating that the father’s mandamus petition would be treated as an appeal from the denial of a Rule 60(b)(4), Ala. R. Civ. P., motion. On March 25, 2011, the Alabama trial court entered an order stating that the father’s motion to set aside would be held in abeyance pending this court’s determination of the proceeding in this court initiated by the father.

Initially, we note that, when this court elected to treat the father’s petition for a writ of mandamus as an appeal, we did not have the benefit of having the entire clerk’s record before us. Now that we do, we conclude that there is no final judgment from which the father could have appealed and, thus, that we may not treat the father’s petition as an appeal. See, e.g., Smith v. Pendergrass, 741 So.2d 423, 424 (Ala.Civ.App.1999) (“An appeal ordinarily lies only from a final judgment.... An order is generally not final unless it disposes of all claims or the rights or liabilities of all parties.”). Thus, we must determine whether the father has shown that a petition for writ of mandamus should be issued.

The father first argues that the Alabama trial court lacked subject-matter jurisdiction to enter the 2006 judgment. “[S]ubject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.” C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003).

“ ‘ “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 Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘[T]he question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). ‘Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo.’ Ex parte Terry, 957 So.2d 455, 457 (Ala.2006).”

Ex parte Berry, 999 So.2d 883, 885 (Ala.2008).

The father specifically argues that the mother failed to comply with the registration requirements of § 30-3A-602, Ala.Code 1975, a part of the UIFSA, and § 30-3B-305, Ala.Code 1975, a part of the UCCJEA. Section 30-3A-602 of the UIF-SA sets forth the procedure a litigant must follow in order to register a foreign child-support judgment. Only strict compliance with that registration procedure confers subject-matter jurisdiction upon an Alabama circuit court to enforce or to modify a foreign child-support judgment. See Mattes v. Mattes, 60 So.3d 887 (Ala.Civ.App.2010); and Ex parte Owens, 65 So.3d 953 (Ala.Civ.App.2010). The father notes that, when the mother filed her February 6, 2006, action seeking child support, she did not register the September 3, 2003, judgment of the Tennessee trial court with the Alabama trial court. The father overlooks a salient point, however. At the time the mother filed the 2006 action, the Tennessee trial court had not entered any child-support judgment. Although the Tennessee Court of Appeals had ordered the Tennessee trial court to consider awarding child support, the record indicates that the Tennessee trial court had not acted on that mandate and had not actually entered any judgment requiring either party to pay child support. Hence, the 2006 action cannot be construed as a petition to enforce or to modify a foreign child-support judgment. Rather, it can only be considered a petition to establish child support under Alabama law. Accordingly, § 30-3A-602 does not apply, and the mother’s alleged failure to comply with that statute does not bar the Alabama trial court from assuming subject-matter jurisdiction as to the issue of child support.

Section 30-3B-305 sets out the procedure to be followed to register foreign child-custody “determination[s].” Until that procedure is followed, an Alabama court does not gain subject-matter jurisdiction to enforce the foreign child-custody determination at issue. Cf. Garrett v. Williams, 68 So.3d 846, 848 (Ala.Civ.App.2011). However, in her 2006 action the mother did not seek to have the Tennessee child-custody determination enforced; to the contrary, she sought to have that determination modified so as to give her primary physical custody of the child. By its plain terms, the registration requirements established in § 30-3B-305 apply solely to enforcement, not modification, actions. Subject-matter jurisdiction to modify a foreign child-custody determination is instead governed by § 30-3B-203, Ala.Code 1975, which does not condition modification jurisdiction on registration of the prior foreign child-custody determination. In short, under § 30-3B-203, an Alabama trial court may modify a foreign child-custody determination without the judgment containing that determination first being registered in accordance with § 30-3B-305. Therefore, the Alabama trial court did not lack subject-matter jurisdiction to modify the custody of the child based on the alleged failure of the mother to register the Tennessee judgment containing a child-custody determination. As this court and our supreme court have already determined, the Alabama trial court properly exercised subject-matter jurisdiction over the child-custody-modification portion of the action pursuant to § 30-3B-203.

The father also argues that the Alabama trial court failed to comply with Ala.Code 1975, § 30-3B-206, which provides:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 30-3B-207[, Ala.Code 1975].
“(b) Except as otherwise provided in Section 30-BB-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209[, Ala.Code 1975]. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
“(c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
“(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
“(2) Enjoin the parties from continuing with the proceeding for enforcement; or
“(3) Proceed with the modification under conditions it considers appropriate.”

As noted previously, however, at the time the mother filed her petition for modification in the Alabama trial court, the issue of custody had been finally resolved in the Tennessee action. Davis I, 47 So.3d at 798. Thus, the requirements of § 30-3B-206 were not triggered.

The father further contends that the Alabama trial court lacked subject-matter jurisdiction because, he says, the mother did not comply with the information requirements of § 30-3B-209(a), Ala. Code 1975. We note, however, that subsection (b) of that Code section provides: “If the information required by subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.” Based on the plain reading of § 30-3B-209(b), it is clear that the failure to comply with § 30-3B-209(a) does not deprive a trial court of subject-matter jurisdiction; rather, it is a defect that may be cured upon motion of any party or on the trial court’s own motion. The father also maintains that the Alabama trial court failed to comply with § 30 — 3B—112(a)(4), Ala.Code 1975. We note, however, that the language of that Code section makes it clear that it is permissive by stating that “[a] court of this state may ” take certain actions. (Emphasis added.) Thus, we find no jurisdictional defect in that regard.

The father finally argues that the Alabama trial court’s custody judgment violated his fundamental parenting rights. We note, however, that this argument does not implicate the Alabama trial court’s subject-matter jurisdiction; rather, it is an attack on the trial court’s application of custody law. See, e.g., Neal v. Neal, 856 So.2d 766, 781 (Ala.2002) (stating that the appellant “confuse[d] legal error with want of subject-matter jurisdiction or want of due process of law” and noting: “ ‘The simple fact that a court has erroneously applied the law does not render its judgment void.’ ” (quoting Halstead v. Halstead, 53 Ala.App. 255, 256, 299 So.2d 300, 301 (1974))). Because the father’s final two arguments do not implicate the Alabama trial court’s subject-matter jurisdiction and because the father has not otherwise demonstrated the necessity of extraordinary relief, we conclude that neither of the father’s final two arguments is a proper basis for mandamus relief. See, e.g., Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (“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.”).

Based on the foregoing, we deny the father’s petition for a writ of mandamus.

The requests by the mother and the father for the award of attorney fees in this appellate proceeding are denied.

PETITION DENIED.

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

PITTMAN and BRYAN, JJ., concur in the result, without writings.

      . The father’s motion was filed in case no. DR-06-86.01, which is the same case number that was assigned to the mother’s original action. Subsequently, on March 3, 2011, the father filed a document entitled “Notice to Supplement the Record” in which he stated that he had attempted to pay a filing fee in the clerk's office of the Alabama trial court but had been informed that no filing fee was required.

      . The motion to vacate was also filed in case no. DR-06-86.01. See supra note 1.

      . We note that a transcript contained in the materials before us indicates that the Alabama trial court subsequently held a hearing on the limited issue of health insurance because that issue impacts the amount of the father's child-support obligation. The Alabama trial court stated at that hearing that it would continue to stay its consideration of all other matters.

      . We also note that, because there was no final judgment entered after our certificate of judgment was issued in Davis II, the father’s motion to vacate cannot be considered to be a Rule 60(b) motion. See, e.g., Edwards v. Edwards, 951 So.2d 699, 702 (Ala.Civ.App.2006).

      .The mother argues that the father’s claims are barred by the doctrine of res judicata. We note, however, that "res judicata does not bar claims over which the first court lacked jurisdiction.” Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 795 n. 2 (Ala.2007). Further, jurisdictional questions are not barred by the law-of-the-case doctrine. Bessemer Bd. of Educ. v. Tucker, 999 So.2d 957, 960-61 (Ala.Civ.App.2008).

      . Section 30~3B-209(a) provides:
      "Except as otherwise provided in subsection (e), in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
      "(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
      "(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions, and, if so, identify the court, the case number, and the nature of the proceeding; and
      "(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.”

      . Section 30-3B-112(a) provides:
      “A court of this state may request the appropriate court of another state to:
      "(1) Hold an evidentiary hearing;
      "(2) Order a person to produce or give evidence pursuant to procedures of that state;
      "(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
      "(4) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
      "(5) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.”