author: STUART, Justice.

text:
    Ex parte INTERNATIONAL REFINING AND MANUFACTURING COMPANY, INC. (In re Zurich Insurance Company et al. v. International Refining and Manufacturing Company, Inc.).
    1091658.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      Candace L. Hudson, of Ely & Isenberg, LLC, Birmingham, for petitioner.
    Vernon L. Wells II and V. Walker Wells of Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., Birmingham, for respondents.
   STUART, Justice.

International Refining and Manufacturing Company, Inc. (“International Refining”), the defendant in a declaratory-judgment action pending in the Jefferson Circuit Court, petitions this Court for a writ of mandamus directing the trial court to transfer the action to the Fay-ette Circuit Court. We grant the petition and issue the writ.

Factual Background and Procedural History

From 1964 to 2002, Arvin Industries d/b/a Arvin-Meritor, Inc. (“Arvin”), operated a plant in Fayette at which automotive mufflers were produced. Arvin closed the plant in 2002. In 2003, Bell Carr and 230 other former employees of Arvin sued Arvin in the Fayette Circuit Court alleging injuries from exposure to toxic chemicals during their employment. In 2005, the Bell Carr plaintiffs amended the complaint to add “new defendants” — the entities that manufactured or sold the toxic chemicals to Arvin — and to add various claims, including wantonness. International Refining was one of the “new defendants” named in the amended complaint.

After the first amended complaint was filed in 2005, International Refining requested and was provided a defense by Zurich Insurance Company, Zurich American Insurance Company of Illinois, and American Zurich Insurance Company (hereinafter referred to collectively as “Zurich”) pursuant to three general-liability insurance policies Zurich had issued to International Refining. The policies provided coverage for the period of June 1990 through June 1993 and required Zurich to defend and indemnify International Refining against claims for property damage and bodily injury occurring during the policy period.

On January 20, 2010, Zurich filed an action in the Jefferson Circuit Court seeking a judgment declaring that it does not have a “continuing duty” to defend and indemnify International Refining. Zurich alleged that pretrial rulings of the Fayette Circuit Court and the Alabama Supreme Court, see Carr v. International Refining & Mfg. Co., 13 So.3d 947, 955 (Ala.2009), “eliminated all claims except wantonness claims which accrued between May 6,1999, and May 6, 2005, as being barred by the applicable statute of limitations.”

International Refining moved to transfer the declaratory-judgment action to the Fayette Circuit Court pursuant to § 6 — 3—7(a)(1), arguing that the “events or omissions giving rise to” the declaratory-judgment action occurred in Fayette County. Alternatively, International Refining argued that the doctrine of forum non conveniens mandated a transfer. After considering briefs from Zurich and International Refining and conducting a hearing, the trial court denied International Refining’s motion to transfer the declaratory-judgment action.

International Refining then filed this petition for a writ of mandamus, asking this Court to order the trial court to transfer the action from the Jefferson Circuit Court to the Fayette Circuit Court.

Standard of Review

“ ‘A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows “ ‘ “(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).'
“Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).
“Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).”

Ex parte De Vega, 65 So.3d 886, 891 (Ala.2010).

Discussion

Intel-national Refining contends that the trial court exceeded the scope of its discretion by refusing to transfer the declaratory-judgment action from the Jefferson Circuit Court to the Fayette Circuit Court because, it says, § 6-3-7(a)(l), Ala.Code 1975, establishes that venue for the action is proper in the Fayette Circuit Court. According to International Refining, this Court’s decision in Vulcan Materials Co. v. Alabama Insurance Guaranty Ass’n, 985 So.2d 376 (Ala.2007), which held that the act giving rise to a declaratory-judgment action seeking to determine insurance coverage is the place where the insurer’s duty under the contract arose, requires that this action be transferred to Fayette County.

Section 6-3-7(a), Ala.Code 1975, which is entitled “Venue of actions — Against foreign and domestic corporations,” provides:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

Zurich recognizes that § 6-3-7(a) provides for the proper venue for actions in Alabama against foreign and domestic corporations. Zurich, however, maintains that even though International Refining is a foreign corporation, because International Refining is not qualified to do business in Alabama and does not do business in Alabama, § 6-3-7(a) has no application in determining venue of the declaratory-judgment action.

In DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998), this Court stated:

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

Clearly subsections (2), (3), and (4) of § 6-3-7(a) provide that, when determining venue of an action against either a foreign or a domestic corporation, a court must give consideration to where the corporation has a corporate principal office in this State or where the corporation is doing business by agent in this State. Section 6-3-7(a)(l), however, does not include language regarding the location of a corporation’s office or where it does business. A plain reading of § 6 — 3—7(a)(1), Ala.Code 1975, requires the conclusion that it applies to determining proper venue in actions against a corporation regardless of whether the corporation is doing business in this State. Although Zurich encourages this Court to conclude that § 6 — 3—7(a)(1) determines venue only for corporations doing business in this State, the plain language of this section does not require such a result, and this Court cannot rewrite the statute. See Ex parte Carlton, 867 So.2d 332, 338 (Ala.2003)(“[T]his Court is not at liberty to rewrite statutes or to substitute its judgment for that of the Legislature.”). Therefore, we reject Zurich’s argument that because International Refining does not do business in the State of Alabama, § 6 — 3—7(a)(1) has no application in determining the proper venue for this declaratory-judgment action.

Zurich further argues that § 6-3-7(a)(1), Ala.Code 1975, has no application in determining venue of the declaratory-judgment action because, it says, “since there [is] no applicable insurance policy for [International Refining’s] remaining exposure in the ‘Bell Carr’ litigation, events that happened in Fayette County have no impact or effect or relationship to Zurich whatsoever.” (Zurich’s response, at p. 16.) According to Zurich, the events giving rise to its filing of this declaratory-judgment action are:

1. International Refining purchased three insurance policies from Zurich for a period of 1990-1993;
2. The insurance was purchased in Illinois;
3. International Refining sent Zurich a demand to defend and indemnify it in the Bell Carr litigation in Fayette County; and
4. After this Court’s rulings in Ex parte International Refining & Manufacturing Co., 972 So.2d 784 (Ala.2007), and Carr v. International Refining & Manufacturing Co., 13 So.3d 947 (Ala.2009), Zurich concluded that its policies were not triggered by any claim against International Refining asserted in the Bell Carr litigation.

According to Zurich, “[sjection 6-3-7(a)(l) would only make Fayette County a proper venue if events which gave rise to Zurich’s right to a declaration of no coverage occurred in Fayette County.” (Zurich’s response, at p. 17.) Zurich maintains that the absence of any coverage for any claims asserted by the plaintiffs in the Bell Can-litigation gives Zurich the right to relief.

International Refining rejects Zurich’s argument, maintaining that venue is determined at the commencement of an action and that the resolution of the merits of the declaratory-judgment action cannot determine where proper venue for an action against a corporation rests. In Vulcan Materials, in addressing the application of § 6-5-430, Ala.Code 1975, a statute making the doctrine of forum non conveniens applicable in an action arising in a foreign jurisdiction, this Court held that venue in that action was established in the forum of the site of the underlying tort, namely California. Although this case involves the application of § 6-3-7(a)(l), Ala.Code 1975, the reasoning and holding in Vulcan Materials are applicable to our resolution of the venue issue in this case. In Vulcan Materials, this Court stated:

‘“The determination of the situs of the claim — either inside or outside the State of Alabama — is a factual determination left to the sound discretion of the trial court.’ Ex parte Ford Motor Credit Co., 561 So.2d 244, 246 (Ala.Civ.App.1990)....
“Vulcan cites Ex parte Employers Insurance of Wausau, 590 So.2d 888 (Ala.1991), as support for its contention that Vulcan’s claims in this case arose in Alabama. In Wausau, a lawsuit was pending in California regarding insurance coverage of claims against a corporation. Shareholders of the corporation brought an action in an Alabama state court seeking a declaration of coverage. This Court held that the trial court did not err in denying the insurance companies’ motion for a dismissal on the basis of forum non conveniens. Wausau, however, is distinguishable from the present case because in Wausau the coverage claims of the corporation in California and of the corporation’s shareholders in Alabama were ‘independent’ and ‘altogether separate’ from each other. 590 So.2d at 892-93. In the present case, the insurance-coverage action brought by Vulcan in Alabama involves nearly identical parties and covers issues identical to the ... action pending in California.
“The act giving rise to Vulcan’s declaratory-judgment action against the various insurance companies is not the initiation of the contractual relationship between Vulcan and its insurers, which occurred in Alabama; instead, it is the alleged breach of that contractual relationship — the insurance companies’ refusal to defend and indemnify Vulcan from ‘claims asserting property damage allegedly caused [by perc].’ There is no dispute that the various perc-related litigation arose outside Alabama, and that litigation is the very litigation over which Vulcan is bringing this action against the companies that insure it. Stickland v. Trion Group, Inc., 463 F.Supp.2d 921, 925 (E.D.Wis.2006) (‘[A] breach of contract occurs where the contract is to be performed.’). In Ex parte Kia Motors America, Inc., 881 So.2d 396 (Ala.2003), Marilyn Jeffreys was killed in an automobile accident that occurred in Jackson County, Florida. Jeffreys’s estate sued Kia Motors America, Inc., Emerald Auto Sales, Inc., and others (collectively ‘Emerald’), in Houston County, Alabama, asserting a product-liability claim, breach of warranty, and negligence. Emerald moved to dismiss the action on the basis of forum non conveniens. The trial court denied the motion, and Emerald petitioned this Court for the writ of mandamus. We granted Emerald’s petition, holding that the doctrine of forum non conveniens applied in that case because ‘the breaeh-of-warranty claim in the present action is a claim of “damages for injury to the person in the case of consumer goods,” the cause of action for which occurred in Florida. The claim, then, accrued in Florida. Accordingly, we [find] it is a “claim [that] has arisen outside this state.” ’ 881 So.2d at 401 (quoting Ala. Code 1975, § 6-5-430). Thus, under the law of Alabama, a breach-of-contract claim, like the claim between Vulcan and its insurance companies, arises where the contract was breached, rather than where the contract was entered into. We conclude that the trial court did not err in determining that the defendants satisfied the first element of forum non conveniens as set forth in § 6-5-430, Ala.Code 1975.”

985 So.2d at 381-82 (footnotes omitted).

Zurich argues that our holding in Vulcan Materials is not applicable to this case because the facts in Vulcan Materials and the facts in this case are clearly distinguishable. Zurich is correct that the facts in this case and the facts in Vulcan Materials are distinguishable; however, the principles of law applicable to the facts in Vulcan Materials are likewise applicable to the facts in this case. The act giving rise to Zurich’s declaratory-judgment action against International Refining is not the initiation of the contractual relationship between Zurich and International Refining; instead, it is Zurich’s desire to be relieved of any obligation to defend and/or to indemnify International Refining in the Bell Carr litigation. The Bell Carr litigation is proceeding in the Fayette Circuit Court, and that litigation is the very litigation from which Zurich is seeking relief from defending International Refining. Therefore, a substantial part of the events giving rise to Zurich’s declaratory-judgment action arose in Fayette County. Whether the remaining plaintiffs’ claims in the Bell Carr litigation against International Refining in the Fayette Circuit Court may be the subject of indemnification by Zurich is a determination to be made by the Fayette Circuit Court.

Conclusion

Venue is to be determined at the commencement of an action. Ex parte Pike Fabrication, Inc., 859 So.2d 1089 (Ala.2002). At the commencement of this declaratory-judgment action, the facts, as stated by Zurich, are that the plaintiffs in the Bell Carr litigation allege that they suffered harm from exposure to toxic substances supplied by Zurich’s insured — International Refining — to Arvin in Fayette County, that the exposure occurred in Fayette County, that the injured plaintiffs filed the complaint in the Fayette Circuit Court, that International Refining requested that Zurich defend it in the Fayette Circuit Court action, that Zurich is providing International Refining a defense in the Fayette Circuit Court, and that Zurich seeks to be excused from providing International Refining a defense in the Fayette Circuit Court. International Refining has established that, pursuant to § 6-3-7(a)(l), Ala.Code 1975, venue for the declaratory-judgment action is proper in the Fayette Circuit Court. Because International Refining has established that venue is proper in the Fayette Circuit Court and the Jefferson Circuit Court refused to transfer the action to the Fayette Circuit Court, International Refining has established a clear legal right to have Zurich’s declaratory-judgment action transferred from the Jefferson Circuit Court to the Fayette Circuit Court. Therefore, we grant International Refining’s petition and issue a writ directing the Jefferson Circuit Court to vacate its order refusing to transfer the declaratory-judgment action and to enter an order transferring this declaratory-judgment action to the Fayette Circuit Court.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.

      . International Refining concedes that subsections (2), (3), and (4) have no application to the determination of venue for Zurich’s declaratory-judgment action.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Dean Kenneth HICKS. (In re Virginia Gayle Marshall v. Dean Kenneth Hicks).
    1100136.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      William L. Lee IV and William W. Nichols of Lee & Mclnish, Dothan, for petitioner.
    M. Hampton Baxley of Ramsey, Baxley & McDougle, Dothan, for respondent.
   LYONS, Justice.

Dean Kenneth Hicks, the defendant in an action arising out of a vehicular accident, has filed a petition for a writ of mandamus requesting that this Court direct the trial court to vacate its order granting a motion filed by the plaintiff, Virginia Gayle Marshall, pursuant to Rule 60(b)(6), Ala. R. Civ. P., for relief from a final judgment in favor of Hicks and reinstating the underlying action to the court’s active docket. We grant the petition and issue the writ.

I. Factual Background and Procedural History

The vehicular accident underlying this action occurred on May 18, 2002. Shortly after the accident, Marshall was referred to attorney Charles Decker. Decker accepted the case and filed an action against Hicks on May 18, 2004, the day before the statute of limitations would have run. Discovery commenced, but Decker did not comply with the discovery requests. On Hicks’s motion, the trial court on January 20, 2005, dismissed the case as a sanction for failing to comply with discovery requests. See Rule 37(d), Ala. R. Civ. P. Decker sought to have the case reinstated, contending that he had not received copies of the court’s notices setting a deadline for completing discovery. • On February 25, 2005, the court reinstated the case to its active docket and cautioned Decker that the case would again be dismissed if all discovery requests were not fully complied with within 21 days. Decker did not provide discovery within the specified time. The trial court then entered an order prohibiting Marshall from proceeding with her case until all discovery requests were answered and taxing her with costs and $418 in attorney fees incurred by the defense. When Marshall failed to pay the fees ordered by the trial court, the court entered an order on January 10, 2006, dismissing her case “for repeated refusals to comply with the Court’s orders.” Marshall did not appeal from this final order.

In June 2009, three and one-half years after her case had been dismissed, Marshall obtained new counsel and filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., to have her case reinstated. On June 21, 2010, the trial court held a hearing on Marshall’s motion, and on September 21, 2010, it entered the order reinstating the case to the court’s active docket, which Hicks now seeks to have vacated.

At the hearing, Marshall contended that she had not been aware of Decker’s failure to comply with court orders and to properly pursue her claims. She stated that she had stopped by his office on several occasions but that she had seldom been able to speak with him and he had not returned her calls. She said that she had not spoken with or met with Decker since 2004. In 2007, Marshall said, she went to Decker’s office and found it “permanently closed.” Marshall did not know at that time that Decker, who suffers from dementia and is disabled, had been suspended from the practice of law by the Alabama State Bar on April 26, 2007. Marshall said she learned of his suspension in the late spring or early summer of 2007 when her son saw a copy of the suspension notice published by the State Bar in a local newspaper and sent it to her.

Marshall said she took no action until approximately September 2008, when she went to the office of the circuit clerk for Houston County to ask about the status of her case and learned that her case had been dismissed in January 2006. In December 2008, Marshall said, she went to Decker’s house and obtained a copy of his case file from his wife. Marshall said that she then took that file back to the circuit clerk’s office to ask about a document in the file styled as a “motion” seeking to have the case reinstated and “orders” in the file purportedly entered by the trial court reinstating her case. The clerk again advised Marshall that her case had been dismissed in 2006 and that it had not been reinstated. Marshall said that she later learned that Decker had fabricated the motion, which was never filed, and that he had also fabricated the orders and had forged the trial court’s signature on them.

Marshall did not seek new counsel until late spring 2009. Her new attorney filed the Rule 60(b)(6) motion on June 1, 2009. After the trial court entered the September 2010 order reinstating the case, Hicks filed a timely petition for a writ of mandamus with this Court.

II. Standard of Review

“‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (8) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

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

“ ‘A petition for the writ of mandamus is a proper method for attacking the grant of a Rule 60(b) motion.’ Ex parte A & B Transp., Inc., 8 So.3d 924, 931 (Ala.2007). ‘In general, the decision whether to grant or to deny a post-judgment motion filed pursuant to ... Rule 60 is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed ... unless the trial court [exceeded] its discretion.’ Comalander v. Spottswood, 846 So.2d 1086, 1090 (Ala.2002). However, ‘[a] party seeking relief must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule.’ Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). Thus, where a ‘Rule 60(b) motion offer[s] no proper basis for granting relief from the judgment, ... the trial court’s granting of that motion [exceeds its] discretion.’ Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1050 (Ala.1996).”

Ex parte Wallace, Jordan, Ratliff & Brandt, L.L.C., 29 So.3d 175, 177-78 (Ala.2009).

III. Analysis

Rule 60(b), Ala. R. Civ. P., states, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court....”

(Emphasis added.) Rule 60(b)(6), a “catchall” provision, is the only portion of Rule 60(b) applicable in this case. Subsection (6) allows a trial court to grant relief from a judgment for any “reason [other than the reasons (1) through (5) ] justifying relief.” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994). “‘Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.’ ” Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984) (quoting Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)).

The dispositive question in this case is whether Marshall filed her Rule 60(b)(6) motion within a “reasonable time” as required by Rule 60(b). This Court has previously discussed the elements that determine a reasonable time for purposes of a Rule 60(b) motion:

“What constitutes a ‘reasonable time’ depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to other parties. Adams v. Farlow, 516 So.2d 528 (Ala.1987), cert. denied, 485 U.S. 1010, 108 S.Ct. 1477, 99 L.Ed.2d 705 (1988). In addition, the doctrine of lach-es, which denies equitable relief to one guilty of unconscionable delay in asserting a claim, applies to Rule 60(b) motions. Waldrop v. Waldrop, 395 So.2d 62 (Ala.1981).”

Ex parte W.J., 622 So.2d 358, 361 (Ala.1993).

The facts of this case are extraordinary. It is clear that Marshall was a victim of her attorney’s conduct, whether Decker acted intentionally or as a result of his disability. Nevertheless, Marshall had no contact with her attorney from 2004 to 2007, approximately three years. By spring 2007, despite the fact that Marshall knew that Decker had closed his office and had been suspended from the practice of law, she took no action for approximately a year and a half, when she inquired at the circuit clerk’s office in September 2008 and was told that her case had been dismissed in January 2006. She waited another three to four months before she obtained Decker’s file on her case and returned to the clerk’s office in December 2008 with the file containing the documents she later learned were fabrications with forged signatures. The clerk again told Marshall that her case had been dismissed. Marshall waited another six months before taking action — obtaining a new lawyer and filing a “Motion to Set Aside” the dismissal of her case.

Marshall had sufficient reason to inquire about her case when she learned in the spring of 2007, after having had no contact with Decker for three years, that Decker had closed his office and had been suspended from the practice of law. Nearly 18 months elapsed before Marshall contacted the circuit clerk’s office in September 2008 and learned that her case had been dismissed. More time passed before she obtained a copy of Decker’s file and returned to the clerk’s office in December 2008, and she waited almost six months more before she retained new counsel and filed a motion seeking to have the dismissal set aside. Marshall does not provide any reasons for her delay in obtaining different legal representation, and she could easily have inquired at the circuit clerk’s office at any time about the status of her case. Hicks argues that he has been prejudiced by the reinstatement of this case over four years after it had been dismissed.

Despite the above-described delays, Marshall argues that she filed her motion to reinstate within a reasonable time after she obtained a copy of Decker’s file and learned that some of the documents in it had been fabricated. She argues that fraud upon the court equitably tolls the time for seeking to set aside a judgment and that in her case the delay between her conversation -with the circuit clerk in December 2008 and the filing of her motion to reinstate in June 2009 is not an unreasonable delay. In support of her argument, Marshall relies upon Ex parte Oden, 617 So.2d 1020 (Ala.1992), in which the plaintiff filed a motion to reinstate a judgment approximately four months after receiving actual knowledge that his case had been dismissed. Oden is distinguishable from this case, however, because in Oden, although the plaintiffs lawyer deliberately misled him about the status of his case, this Court found that the plaintiff showed “extraordinary diligence” in checking with his lawyer almost weekly about his case and in obtaining a different lawyer within a month of several unsuccessful attempts to contact the lawyer who had misled him. In Marshall’s case, we conclude that her delay in making any type of inquiry about her case for approximately 18 months after she learned that Decker had closed his office and had been suspended from the practice of law, together with the additional three- to four-month delay before she obtained the copy of his file on her case and confirmed that her case had been dismissed, was unreasonable. We therefore need not decide whether her six-month delay in filing a motion to reinstate after learning about the fabricated documents in Decker’s file was reasonable.

Under the particular circumstances of this case, although the situation in which Marshall found herself is certainly regrettable, we conclude that she did not file her Rule 60(b) motion within a reasonable time. It is not reasonable to allow a plaintiff to sit idly by for several years without inquiring about the status of a case and then to wait almost another year before pursuing a remedy for the dismissal of that case, even though the plaintiff was not informed of the dismissal. The legal system must have a degree of finality, and it is unreasonable under the facts here presented to reinstate a case that has now been dismissed for over four years.

IV. Conclusion

Because Marshall did not file her Rule 60(b) motion within a reasonable time, the trial court exceeded its discretion in granting her motion to reinstate the case. Therefore, we grant Hicks’s petition for a writ of mandamus and order the trial court to vacate the September 2010 order that granted Marshall’s motion for relief from a final judgment and reinstated the underlying action. Because of our disposition of the case on this ground, we need not address the other issues argued by the parties.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Section 6-2-3, Ala.Code 1975, tolls the running of the statute of limitations for an action based upon fraud if the party against whom the fraud claim exists has fraudulently concealed his or her acts. Section 6-2-8, Ala. Code 1975, tolls the running of the statute of limitations for an action based upon fraud if the party who has been defrauded is less than 19 years old or is considered "insane.”


author: COBB, Chief Justice.

text:
    Wesley FRYE, as personal representative of the estate of Rhonda Rainey, deceased; and Roderick Stacy Arthur, as the father and next friend of Ryan Arthur and Roderick Arthur, minors v. John F. SMITH, Harry J. Pearce, and J. Michael Losh.
    1091386.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      William W. Smith and W. Cone Owen, Jr., of Smith & Alspaugh P.C., Birmingham, for appellants.
    Kevin C. Newsom and Andrew L. Brasher of Bradley Arant Boult Cummings LLP, Birmingham; and Chilton Davis Varner, Philip E. Holladay, Jr., and Susan M. Clare of King & Spalding LLP, Atlanta, Georgia, for appellees.
   COBB, Chief Justice.

Wesley Frye, as personal representative of the estate of Rhonda Rainey, deceased, and Roderick Stacy Arthur, as father and next friend of Ryan Arthur and Roderick Arthur, minors (collectively, “the plaintiffs”), appeal from the order of the Calhoun Circuit Court dismissing their claims against John F. Smith, Jr., Harry J. Pearce, and J. Michael Losh based on a lack of personal jurisdiction. The plaintiffs also challenge the order of the Calhoun Circuit Court denying their motion to supplement the record on appeal. We affirm.

Facts

On or about June 19, 2006, Rhonda Rai-ney and minors Roderick Arthur and Ryan Arthur were involved in an automobile accident while they were passengers in a 1998 Chevrolet Blazer sport-utility vehicle being driven by Christopher Rainey, Rhonda’s husband and Roderick’s and Ryan’s stepfather. Roderick and Ryan were injured, and Rainey died as a result of injuries sustained in the accident. On June 17, 2008, the plaintiffs filed a complaint in the Calhoun Circuit Court naming as defendants General Motors Corporation (“GM”), the manufacturer of the Blazer, and Massey Chevrolet-Olds-Geo, Inc., the dealer who sold the Raineys the Blazer. The plaintiffs sought damages for wrongful death as to Rhonda and for personal injuries as to Roderick and Ryan, alleging claims of negligence and breach of warranty, as well as claims under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”).

On June 12, 2009, GM filed a notice of bankruptcy in the United States Bankruptcy Court for the Southern District of New York, thereby invoking the automatic stay codified at 11 U.S.C. § 362.

On September 22, 2009, the plaintiffs amended their complaint to state claims against the following individuals: John F. Smith, Jr., former chairman of the board of directors of GM; Harry J. Pearce, former vice chairman of the board of directors of GM; and J. Michael Losh, former executive vice president of GM (Smith, Pearce, and Losh are hereinafter referred to as “the individual defendants”).

On November 2, 2009, the individual defendants moved to dismiss the claims against them for lack of personal jurisdiction. In support of the motion to dismiss, the individual defendants each submitted an affidavit.

On November 9, 2009, the trial court set a hearing date on the individual defendants’ motion to dismiss. On November 18, 2009, the plaintiffs moved for a continuance of the hearing until after the individual defendants served a response to interrogatories propounded by the plaintiffs. On November 25, 2010, the trial court granted the plaintiffs’ motion for a continuance.

On November 23, 2010, the plaintiffs filed a second amendment to their complaint. In it, they made the following allegations:

“That the defendant John F. Smith, Jr. was Chairman of the Board of Directors of [GM] from January 1996 to May 2003, served as Chief Executive Officer of said corporation from November 1992 to June 2000, and was President of same from April 1992 to October 1998.
“... That the defendant Harry J. Pearce was Vice Chairman of [GM] and a member of the Board of Directors of same from 1996 to 2001.
“... That the defendant J. Michael Losh was Executive Vice President and Chief Financial Officer of [GM] from 1994 to 2000.
“. . That [the individual defendants] held said positions in the corporate business as set out in the next preceding three paragraphs during the time that the 1998 model Blazer motor vehicles, like and including the one which is the subject of this suit, were designed, manufactured, marketed and placed in the stream of commerce in the regular course of the corporate business.
“That by virtue of their said positions, said defendant officers had affirmative official responsibility in the management and control of the corporate business at the time that the 1998 model Blazer motor vehicles, like and including the one which is the subject of this suit, were designed, manufactured, marketed and placed in the stream of commerce in the regular course of corporate business.
“... That the defendant officers knew or should have known at the time said vehicles were designed, manufactured, marketed and placed in the stream of commerce in the regular course of the corporate business that said 1998 model Blazer motor vehicles were defective and unreasonably dangerous because of those design defects as alleged in the original complaint.
“... That the corporate business and the said defendant officers had the expectation that the said 1998 model Blazer motor vehicles would be purchased by consumers in Alabama and the 1998 model motor vehicle which is the subject of this suit was purchased by a consumer in Alabama.
“... That at the time the 1998 model Blazer motor vehicles were placed in the stream of commerce and thereafter during the time that the said defendant officers held their aforesaid positions with the corporate business, the said defendant officers knew or should have known by virtue of lawsuits, judgments, settlements, tests, crash tests, reports, studies, complaints or otherwise that said 1998 model Blazer motor vehicles were defective and unreasonably dangerous in regard to those defects as alleged in the original complaint.
“... That the corporate business and the said defendant officers, separately and severally, had the expectation that the said 1998 model Blazer motor vehicles would be purchased by consumers in Alabama and the motor vehicle that is the subject of this suit was purchased in Alabama.”

On December 18, 2010, the individual defendants again moved to dismiss the claims against them for lack of personal jurisdiction and submitted affidavits in support of the motion. In his affidavit, Smith stated:

“I was Chairman of the Board of Directors of [GM] from January 1996 to May 2003,1 also served as Chief Executive Officer from November 1992 to June 2000 and was President from April 1992 to October 1998.
“... In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], I had no direct involvement in or immediate responsibility for the engineering, design, or product development functions of [GM], including the design, manufacture, testing, marketing, or placing into the stream of commerce of 1998 Chevrolet Blazers. As the Chairman of the Board of Directors, Chief Executive Officer, and President, my ‘affirmative official responsibilities]’ did not include or involve direct review of the engineering, design, and other product development decisions made regarding the design, manufacture, testing, marketing, or placing into the stream of commerce 1998 Chevrolet Blazers.
“... At the time the 1998 Chevrolet Blazer was placed into the stream of commerce by [GM], I had no knowledge of any lawsuits, judgements, settlements, tests, crash tests, reports, studies, complaints, or any other information that caused me to believe that the 1998 Chevrolet Blazer was defective or unreasonably dangerous or likely to be dangerous in any manner whatsoever, including the manner alleged by [the] Plaintiffs in this lawsuit. I also have not been made aware of any facts or information since the 1998 model year Chevrolet Blazers were placed into the stream of commerce that has caused me to believe that those vehicles are defective or unreasonably dangerous as alleged in [the] Plaintiffs’ Amended Complaints. In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], my ‘affirmative official responsibilities]’ did not include reviewing the engineering, design, and other product development decisions made during the design, engineering, manufacture, testing, marketing, and placing into the stream of commerce of specific models of [GM] cars and trucks, and I was never asked or called upon to review any such decisions made relating to the 1998 Chevrolet Blazer.
“... In my roles as Chairman of The Board of Directors, Chief Executive Officer, and President of [GM], I was not personally involved in or responsible for authorizing or directing that any warnings be provided or not provided with the 1998 Chevrolet Blazer. It was not within my ‘official affirmative responsibilities!’] as Chairman of the Board of Directors, Chief Executive Officer, or President to decide whether or not specific warnings were provided with [GM] vehicles or what the content of those warnings should be.
“... In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], I also was not personally involved in or responsible for authorizing or directing that any recall be initiated or not initiated with respect to the 1998 Chevrolet Blazer. It was not within my ‘official affirmative responsibilities!’] as Chairman of the Board of Directors, Chief Executive Officer, or President to decide whether or not to recall [GM] vehicles.”

Pearce and Losh submitted affidavits identical to the above affidavit submitted by Smith, with the exception of the affi-ant’s names and the titles of the positions held by the affiant at GM.

A second set of affidavits from the individual defendants also accompanied the individual defendants’ December 18, 2010, motion to dismiss. In Smith’s second affidavit, he made the following statements:

“I currently reside in Florida. I have never maintained a residence in Alabama or owned possessed, or regularly used any real or personal property in Alabama. I have never paid taxes in Alabama and am not registered to vote in Alabama. I do not regularly travel to Alabama.
“... I can recall being in Alabama only one time in my life. I gave a speech at Auburn University some time in the mid 2000s, after my retirement from [GM], My speech at Auburn University had nothing to do with the design, development, testing, manufacture, advertising, or sales of 1998 Chevrolet Blazers.
“... I have never had any direct communications with any individual in the State of Alabama regarding the 1998 Chevrolet Blazer.
“... I was employed at [GM] from 1961 to 2003. During the time period that I held the positions referenced in [the] Plaintiffs’ Amended Complaint, my titles and positions were as follows: I was Chairman of the Board of Directors of [GM] from January 1996 to May 2003. I also served as Chief Executive Officer from November 1992 to June 2000 and was President from April 1992 to October 1998.
“... At no time during my employment at [GM] was I personally involved as the Release Engineer or Chief Engineer charged with release responsibility for the design, development, manufacture, or testing of any [GM] car, truck, or sport utility vehicle. I, likewise, was never personally involved as a Release Engineer or an engineer otherwise charged with release responsibility for the design, development, manufacture, or testing of the roof, seat, seatbelt system, or handling and stability systems used by [GM] in any car, truck, or sport utility vehicle.
“... I never made any decision regarding any specific [GM] vehicle or line of vehicles, including the 1998 Chevrolet Blazer, that was specifically or uniquely related to GM’s business within the State of Alabama. I never made any decision regarding any specific [GM] vehicle or line of vehicles, including the 1998 Chevrolet Blazer, that was outside the scope of my employment at [GM].
“... None of the compensation I received as an employee of [GM] was specifically dependant on the level of services performed, or the amount of goods sold by [GM] in Alabama.
“... I have never personally done or solicited business in the State of Alabama in connection with my employment at [GM].
“... I have never done business or solicited business in Alabama on my own behalf. I have never personally incorporated or otherwise formed a business entity within Alabama or otherwise transacted business in Alabama on my own behalf.
“... I have never maintained an office or otherwise worked in Alabama. I do not now hold, nor have I ever held, any Alabama professional or recreational licenses.
“... I do not now have, nor have I ever had, any substantial ties to Alabama and I am not involved in any activities in that state.
“... I have never served on the boards of any other companies or charities located in Alabama and have not attended any meetings in that state.
“... I did not receive a copy of the Summons and Complaint in this case. Prior to this case, to my knowledge, I have never been named as a party to litigation in the Alabama courts or in an administrative proceeding. I have never attempted to use the Alabama courts to bring an action or claim against another party, nor have I ever voluntarily submitted myself to the jurisdiction of the Alabama courts.”

In Pearce’s second affidavit, he stated the following facts:

“I currently reside in Michigan. I have never maintained a residence in Alabama. Nor have I owned, possessed, or regularly used any real or personal property in Alabama. I have never paid taxes in Alabama and am not registered to vote in Alabama. I do not regularly travel to Alabama.
“... I have no recollection of ever being within the State of Alabama in my life. “... I have never had any direct communications with any individual in the State of Alabama regarding the 1998 Chevrolet Blazer.
“... I was employed at [GM] from 1985 to 2001. During the time period that I held the positions referenced in [the] Plaintiffs’ Amended Complaint, my titles and positions were as follows. I was Vice Chairman of [GM] and a member of the Board of Directors of [GM] from 1996 to 2001.
“... At no time during my employment at [GM] was I personally involved as the Release Engineer or Chief Engineer charged with release responsibility for the design, development, manufacture, or testing of any [GM] car, truck, or sport utility vehicle. I, likewise, was never personally involved as a Release Engineer or an engineer otherwise charged with release responsibility for the design, development, manufacture, or testing of the roof, seat, seatbelt system, or handling and stability systems used by [GM] in any car, truck, or sport utility vehicle.
“... None of the compensation I received as an employee of [GM] was specifically dependant on the level of services performed, or the amount of goods sold by [GM] in Alabama.
“... I have never personally done or solicited business in the State of Alabama in connection with my employment at [GM],
“... I have never done business or solicited business in Alabama on my own behalf. I have never personally incorporated or otherwise formed a business entity within Alabama or otherwise transacted business in Alabama on my own behalf.
“... I have never maintained an office or otherwise worked in Alabama. I do not now hold, nor have I ever held, any Alabama professional or recreational licenses.
“... I do not now have, nor have I ever had, any substantial ties to Alabama and I am not involved in any activities in that state.
“... I have never served on the boards of any other companies or charities located in Alabama and have not attended any meetings in that state.
“... I did not receive a copy of the Summons and Complaint in this case. Prior to this case, to my knowledge, I have never been named as a party to litigation in the Alabama courts or in an administrative proceeding. I have never attempted to use the Alabama courts to bring an action or claim against another party, nor have I ever voluntarily submitted myself to the jurisdiction of the Alabama courts.”

A second affidavit by Losh was submitted with the individual defendants’ December 18, 2010, motion to dismiss. In that affidavit, Losh stated:

“I currently reside in Michigan. I have never maintained a residence in Alabama. Nor have I owned, possessed, or regularly used any real or personal property in Alabama. I have never paid taxes in Alabama and am not registered to vote in Alabama. I do not regularly travel to Alabama.
“... I can recall being in Alabama only two times in my life. In the 1970s, I passed through Alabama as I was driving from New Orleans to the Midwest. I also attended the NASCAR race at Talladega some time in the 1980s. The purpose of these two trips had nothing to do with the design, development, testing, manufacture, advertising, or sales of 1998 Chevrolet Blazers.
“... I have never had any direct communications with any individual in the State of Aabama regarding the 1998 Chevrolet Blazer.
“... I was employed at [GM] from 1964 to 2000. During the time period that I held the positions referenced in [the] Plaintiffs’ Amended Complaint, my titles and positions were as follows. I was Executive Vice President and Chief Financial Officer of [GM] from 1994 to 2000.”

On March 15, 2010, the plaintiffs filed a memorandum in opposition to the individual defendants’ motion to dismiss, relying in part on the individual defendants’ answers to interrogatories. However, the plaintiffs did not submit as evidence copies of the individual defendants’ answers to interrogatories. The plaintiffs did submit with their memorandum the affidavit of the plaintiffs’ expert, Stephen R. Syson. In his affidavit, Syson stated:

“My opinions are based on my background, experience and expertise in the field of automotive design and analysis engineering, and on the application of recognized laws of physics and principles of mechanical and automotive engineering to the specific issues raised by the events in question, as well as my knowledge and experience with automobile safety as known by the automotive community.
“... My expertise includes the field of automotive design analysis engineering — the specialty of analyzing the design and performance of vehicles, including restraint systems. While employed by [GM], I was assigned to the [GM] Safety Research and Development Laboratory (SRDL) at the [GM] Proving Grounds, from September 1971 through August 1978, as an engineer in the restraints, structures and analytical groups. Additionally, I was responsible for analyzing crash tests, sled tests and field performance of [GM] vehicles and restraint systems.”

Syson opined that the 1998 Chevrolet Blazer and models of the Blazer for prior years were

“defective in their handling and stability characteristics because they are top-heavy, with a high center of gravity, and prone to driver responses (due to the poor handling characteristics) that lead even trained test drivers to lose control of these vehicles, making a rollover accident inevitable, as it happened in this instant accident.
“... At the time the 1998 model year Chevrolet Blazer was distributed, marketed, sold and placed in the stream of commerce, its prior model years predecessor, including the 1997 model year vehicle, all of which utilized the same defective designs had been the subject of numerous lawsuits, judgments and settlements because of said defective designs, particularly its propensity to roll over, and had been the subject of tests, crash tests reports, studies and complaints attesting to said propensity to roll over for many years before it was placed into the stream of commerce.
“... Based on all of the above, in my opinion, the [individual] defendants in this case, Smith, Pearce and Losh, knew at the time that the 1998 model year Chevrolet Blazer motor vehicles, like and including the one that is the subject of this suit, were distributed, marketed, sold and placed in the stream of commerce that said vehicles were defective and unreasonably dangerous in that they were inherently unstable due to the propensity to roll over in foreseeable accidents; the very thing that happened in this accident, causing a catastrophic injury in one child and the death of the other [sic].”

On March 31, 2010, following a hearing on the individual defendants’ motion to dismiss, the trial court granted the motion and dismissed the claims against the individual defendants for lack of personal jurisdiction.

On May 6, 2010, the plaintiffs moved for leave to supplement the record on appeal with the individual defendants’ answers to interrogatories on which the plaintiffs had relied in response to the individual defendants’ motion to dismiss and which they argued, would have provided a basis for personal jurisdiction. On May 13, 2010, the trial court certified its March 31, 2010, order dismissing the claims against the individual defendants as final pursuant to Rule 54(b), Ala. R. Civ. P. On June 24, 2010, the plaintiffs filed a notice of appeal from the trial court’s order dismissing their claims against the individual defendants. On July 1, 2010, the trial court denied the plaintiffs’ motion to supplement the record.

Standard of Review

I. Motion to Supplement the Record

A trial court’s decision on a motion to supplement the appellate record under Rule 10(f), Ala. R.App. P., is left to the trial court’s sound discretion, and will be reversed only if the trial court has exceeded its discretion in ruling on the motion. See Prattville Mem’l Chapel v. Parker, 10 So.3d 546 (Ala.2008) (reviewing a trial court’s decision whether to supplement an appellate record under Rule 10(f), Ala. R.App. P., under the excess-of-discretion standard).

II. Motion to Dismiss for Lack of Personal Jurisdiction

“An appellate court considers de novo a trial court’s judgment on a party’s’ motion to dismiss for lack of personal jurisdiction. Greene v. Connelly, 628 So.2d 346, 351-52 (Ala.1993); Williams v. Skysite Communications Co[rp.], 781 So.2d 241, 245 (Ala.Civ.App.2000).” Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).

“ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).’”

Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).

“However, if the defendant makes a pri-ma 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).

Analysis

I. Motion to Supplement

In opposition to the individual defendants’ motion to dismiss, the plaintiffs relied in part on the individual defendants’ answers to interrogatories. However, the plaintiffs did not submit as evidence copies of those answers. After the trial court granted the individual defendants’ motion to dismiss, but before the trial court certified its ruling on the motion to dismiss as final pursuant to Rule 54(b), Ala. R. Civ. P., and before the plaintiffs filed their notice of appeal, the plaintiffs filed a motion requesting the trial court to permit them to supplement the record on appeal with the individual defendants’ answers to interrogatories. It is clear from the substance of the plaintiffs’ motion to supplement that, although a final judgment had not yet been entered at the time the motion was filed, the only purpose of the motion was to supplement the record for purposes of this appeal. We review the trial court’s ruling on a motion to supplement the appellate record to determine whether, in so ruling, the trial court exceeded its discretion. Prattville Mem’l Chapel v. Parker, 10 So.3d 546 (Ala.2008) (reviewing a trial court’s decision whether to grant a motion to supplement an appellate record under Rule 10(f), Ala. R.App. P., under the excess-of-discretion standard).

According to the plaintiffs, the individual defendants stated in answers to interrogatories that they “do not recall” being personally aware of any lawsuit alleging that the 1998 model year Blazer sport-utility vehicle was defective, receiving any GM internal documents indicating that the vehicle was defective, or having any conversation within GM about any design defect in the vehicle. The plaintiffs argue that “ ‘do not recall’ is a nonanswer, and directly contradicts the testimony in the defendants’ sworn affidavits. Such evidence effectively negates that defendants’ affidavit testimony and leaves the [plaintiffs’ pleadings unchallenged.” Plaintiffs’ brief, at 27.

Having reviewed the individual defendants’ affidavits in detail, we conclude that those affidavits do not conflict with their answers to interrogatories as stated by the plaintiffs. Moreover, in reviewing the trial court’s ruling dismissing the claims against the individual defendants for lack of personal jurisdiction, this Court is limited to the record before the trial court at the time it ruled on that motion. Cf. Cowen v. M.S. Enters., Inc., 642 So.2d 453, 454 (Ala.1994) (“We initially note that this Court is limited to a review of the record alone, that is, it can consider only the evidence that was before the trial court when it made its ruling.”). For these reasons, even if the trial court had granted the plaintiffs’ motion to supplement and the individual defendants’ answers to interrogatories had been included in the record, they would have been superfluous to our analysis of the issue of personal jurisdiction. The trial court did not exceed its discretion in denying the plaintiffs’ motion to supplement the record.

II. Personal Jurisdiction

A. Limits of Personal Jurisdiction

The personal jurisdiction of the Alabama courts extends to the limit of due process under the United States and the Alabama Constitutions. Ex parte DBI, Inc., 23 So.3d 635, 643 (Ala.2009). “ ‘The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient “minimum contacts” with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).’ ” Ex parte DBI, 23 So.3d at 644 (quoting Elliott v. Van Kleef 830 So.2d at 730).

A court may exercise personal jurisdiction where the defendant’s contacts with the forum state are sufficient to give rise to either specific jurisdiction or general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A court exercises specific jurisdiction “when a controversy is related to or ‘arises out of a defendant’s contacts with the forum.” 466 U.S. at 414. In an action not arising out of or related to the defendant’s contacts with the forum, a court may exercise general jurisdiction by subjecting the defendant to in personam jurisdiction when the contacts between the defendant and the forum are continuous and systematic. 466 U.S. at 414. In any event, the critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant “ ‘should reasonably anticipate being haled into court’ ” in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 486, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Finally, “ ‘[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” ’ ” Ex parie DBI, 23 So.3d at 644 (quoting Burger King, 471 U.S. at 476).

B. Personal Jurisdiction Over the Individual Defendants

In Ex parie Alloy Wheels International, Ltd., 882 So.2d 819, (Ala.2003), this Court held that the Due Process Clause of the United States Constitution requires that specific jurisdiction must be based on an action of the defendant that is “ ‘ “more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce.” ’ ” 882 So.2d at 824 (quoting Ex parte McInnis, 820 So.2d 795, 803 (Ala.2001), quoting in turn Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 110, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (O’Connor, J., plurality opinion)). Further, in Alloy Wheels, this Court held that “a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.” 882 So.2d at 824 (quoting Ex parte McInnis, 820 So.2d at 804, quoting in turn Asahi, 480 U.S. at 112 (O’Con-nor, J., plurality opinion)(emphasis omitted)).

In Ex parte DBI, Inc., supra, this Court overruled Alloy Wheels and held that “ ‘ “[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State” and those products subsequently injure forum consumers.’” 28 So.3d at 655 (quoting Burger King, 471 U.S. at 473, quoting in turn World-Wide Volkswagen Corp., 444 U.S. at 297-98).

However, in Ex parte DBI this Court did not retreat from the fundamental notion that “ ‘ “it is essential in each case that there be some act by which the defendant purposefully avails [himjself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” ’ ” Ex parte DBI, 23 So.3d at 652-53 (quoting Burger King, 471 U.S. at 475, quoting in turn Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). This ‘“purposeful availment’ requirement,” Ex parte DBI, 23 So.3d at 653, was not abandoned in Ex parte DBI; rather, it was reaffirmed and refined in that opinion.

In a nutshell, the plaintiffs argue that specific jurisdiction exists in this case on the basis of the following alleged facts: (1) that, as corporate officers of GM, each of the individual defendants was responsible for the day-to-day operations of GM at the time GM placed the 1998 Chevrolet Blazer sport-utility vehicle in the stream of commerce, and (2) that (according to the plaintiffs) each of the individual defendants knew or should have known that the 1998 Chevrolet Blazer sport-utility vehicle was unreasonably dangerous at the time GM placed the vehicle into the stream of commerce. The plaintiffs argue that under Ex parte DBI these facts are sufficient to give rise to specific jurisdiction over the individual defendants. We disagree.

The plaintiffs point to no action on the part of the individual defendants indicating that the individual defendants themselves participated in the design, engineering, testing, marketing, safety, or recall decisions or activities involving the 1998 Chevrolet Blazer sport-utility vehicle, or that they were personally involved in placing the 1998 Chevrolet Blazer into the stream of commerce. Further, the affidavits of the individual defendants expressly disclaim taking part in, or any responsibility for, GM’s engineering, design, testing, marketing, safety, or recall decisions regarding the 1998 Chevrolet Blazer sport-utility vehicle. The individual defendants also disclaim responsibility for, or personal participation in, placing the 1998 Chevrolet Blazer into the stream of commerce. The plaintiffs have presented no evidence to rebut the individual defendants’ affidavits.

“[I]t is clear that jurisdiction over individual officers or employees of a corporation may not be predicated merely upon jurisdiction over the corporation itself.... It is established that there must be a showing that the individual officers engaged in some activity that would subject them to the state’s long-arm statute before in personam jurisdiction can attach.” Thames v. Gunter-Dunn, Inc. 373 So.2d 640, 641-42 (Ala.1979). On this record, the individual defendants’ contacts with this State are not such that the individual defendants can be subjected to personal jurisdiction in this State. The only evidence before this Court establishes that the individual defendants’ personal participation in any of GM’s activities would not amount to a purposeful availment on the part of the individual defendant of the privilege of conducting activities within Alabama with respect to the 1998 Chevrolet Blazer sport-utility vehicle. Neither did they engage in any such activities apart from their employment and apart from GM’s activities.

As this Court observed in Ex parte DBI:

‘[T]he constitutional touchstone remains whether the defendant purposefully established “minimum contacts” in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the [United States Supreme] Court has consistently held that this kind of foreseeability is not a “sufficient benchmark’’ for exercising personal jurisdiction. Instead, “the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” In defining when it is that a potential defendant should “reasonably anticipate” out-of-state litigation, the [United States Supreme] Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 (1958):
«(«The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”
“ ‘This “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts, or of the “unilateral activity of another party or a third person.” Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State.’ ”

Ex parte DBI, 23 So.3d at 652-53 (quoting Burger King, 471 U.S. at 473-76) (emphasis omitted; emphasis added).

On this record, the evidence is not sufficient to support the exercise of personal jurisdiction over the individual defendants. Therefore, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . The plaintiffs did not raise any new arguments in the motion to supplement, and they did not request that the trial court reconsider its ruling in light of the individual defendants’ answers to interrogatories. On the same day the plaintiffs filed their motion to supplement, they also filed a motion requesting that the trial court "amend or correct” the order granting the motion to dismiss. The plaintiffs requested no other amendment or correction to the trial court’s ruling on the motion to dismiss except that the trial court expressly make the appropriate findings to certify the order as final under Rule 54(b), Ala. R. Civ. P.

      . The plaintiffs concede that the individual defendants do not have “continuous and systematic” contact with Alabama sufficient to give rise to general jurisdiction. Helicopteros Nacionales de Colombia, 466 U.S. at 414 n. 9.

      . The plaintiffs submit evidence in the form of an affidavit of Stephen R. Syson, an engineer, stating that the design of the 1998 Chevrolet Blazer was similar to the previous models of the Chevrolet Blazer that were involved in lawsuits alleging design defects. According to Syson, the individual defendants should have known that the 1998 Chevrolet Blazer was dangerous because they should have known about the past lawsuits regarding previous models of the Blazer. We note that Syson’s testimony is based on his experience and training in the field of automotive design and analysis engineering. The record contains no evidence indicating that the individual defendants are experts in the field of automotive design and analysis engineering. However, the individual defendants do not object to Syson's affidavit on this basis.


author: WOODALL, Justice.

text:
    Alan E. ROTHFEDER v. KAUFMAN GILPIN McKENZIE THOMAS WEISS, P.C. Jo Karen Parr v. Kaufman Gilpin McKenzie Thomas Weiss, P.C. Kaufman Gilpin McKenzie Thomas Weiss, P.C. v. Jo Karen Parr. Kaufman Gilpin McKenzie Thomas Weiss, P.C. v. Alan E. Rothfeder.
    1090639, 1090671, 1090723, and 1090724.
    Supreme Court of Alabama.
    Jan. 14, 2011.
    Marvin H. Campbell, Montgomery, for appellant/cross-appellee Alan E. Rothfeder.

      James H. Anderson of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery for appellant/cross-appellee Jo Karen Parr.
    Joe Espy III, Oakley Melton, Jr., and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appel-lee/cross-appellant Kaufman Gilpin McKenzie Thomas Weiss, P.C.
   WOODALL, Justice.

Kaufman Gilpin McKenzie Thomas Weiss, P.C., an Alabama law firm (“the firm”), sued Alan E. Rothfeder and Jo Karen Parr, seeking, among other things, a judgment declaring certain legal fees to be the property of the firm. Ultimately, the legal fees were interpleaded, and the firm claimed to be entitled to all the inter-pleaded funds. The trial court purported to render a judgment in favor of the firm, but it awarded Rothfeder and Parr portions of the interpleaded funds. We find the trial court’s order internally inconsistent; therefore, we reverse and remand.

Facts and Procedural History

At the time of the events underlying this action, Rothfeder and Parr were attorneys and shareholders in the firm. The bylaws of the firm provide that “[t]he business, affairs and property of [the firm] shall be managed by a Board of Directors ... who shall be elected at the annual meeting of the shareholders.” The bylaws further provide that “[t]he Board of Directors shall have one Executive Committee made up of the following functional areas of firm management: Administration, Legal Operations, Finance and Facilities.” According to the bylaws, the executive committee is “responsible for the management and day-to-day operation of [the firm.]” The executive committee has responsibility for “evaluating] and recommending] guidelines for the compensation of both legal and non-legal personnel” and for “preparing] an annual budget and set[ting] budget policy.” The executive committee also determines “at the end of each fiscal year ... the amount of funds available for distribution to the Shareholders, and ... calculate^] the proposed allocation of funds available for distribution. The proposed distribution of funds shall be submitted to the Board of Directors for approval.”

In February 2003, Rothfeder met with Derek Warren, an accountant practicing in Geneva, Alabama, to discuss the referral of one of Warren’s clients, Ruth K. Baucom, to the firm for assistance with tax and estate-planning matters. On behalf of the firm, Rothfeder agreed to represent Bau-com.

On February 23, 2003, Parr sent Bau-com an engagement letter confirming the firm’s representation. The engagement letter provided, among other things, that Baucom was “represented by [the] entire law firm,” although “Rothfeder, Richardson B. McKenzie III, and [Parr] [would] have primary responsibility for [Baucom’s] representation.” The engagement letter also provided that the firm would represent Baucom on a contingency-fee basis, receiving 33 1/3% of the difference between $5 million and the federal and state estate taxes finally determined to be due from Baucom’s estate. The engagement letter provided that the contingency fee would be payable within 30 days following the earliest of certain events, one of which was the receipt of an estate-tax closing document from the Internal Revenue Service (“IRS”).

Baucom died in March 2003. The firm continued to represent her estate in accordance with the terms of the engagement letter. In January 2007, Baucom’s estate received an estate-tax closing document from the IRS confirming the estate’s total tax liability. Pursuant to the terms of the engagement letter, the firm was then entitled to a $1.6 million contingency fee (“the Baucom fee”) for its representation of the estate.

Rothfeder and Parr met with Warren to make arrangements for payment of the Baucom fee. During the meeting, Roth-feder arranged with Warren to have the Baucom fee deposited into an interest-bearing account in Warren’s name, where it would remain in escrow until such time as any remaining probate distributions were made and the appropriate orders were issued by the probate court. In a letter written by Parr to Warren to confirm the arrangements with regard to the Baucom fee, Parr stated:

“[I]t is acceptable to [Rothfeder] and me for you to hold the funds, as agent, in such interest bearing accounts as you determine appropriate so long as written instructions are delivered to the financial institutions requiring that funds can be withdrawn only on the receipt of written instructions given jointly by you and [Rothfeder] or me. In addition for handling the receipt and disbursement of the funds and serving as the escrow agent, we agreed that you will be entitled to any interest earned on the depository accounts.”

Rothfeder also agreed to pay Warren an additional $200,000 for his help with the Baucom estate. This fee was to be paid from the $1.6 million Warren held as escrow agent. Rothfeder and Parr argue that “Rothfeder agreed to enhance Warren’s fees because he wanted to foster and build a relationship with Warren, who was perceived by Rothfeder and Parr as having a growing practice representing wealthy landowners in south Alabama.” Rothfeder’s brief, at 22; Parr’s brief, at 21. According to Rothfeder and Parr, this action was consistent with the firm’s general practice.

After their meeting with Warren, Roth-feder met with Richardson McKenzie and George Thomas, two attorneys at the firm, to discuss the Baucom fee. At that time, McKenzie and Thomas constituted the firm’s executive committee. The firm argues:

“On March 1, 2007, Rothfeder met with Thomas and McKenzie and informed them for the first time that the firm had earned a fee from its Baucom representation, which he represented was only $1.2 million dollars. Rothfeder did not tell Thomas and McKenzie that the fee was actually $1.6 million or that he and Parr had agreed to give Derek Warren over $200,000 out of the fee, plus all interest earned on the fee. Rothfeder. also informed Thomas and McKenzie that he wanted to resolve how the fee would be split before the money came into the firm, and requested a memorandum explaining to him how the Baucom fee would be split.”

The firm’s brief, at 16 (emphasis in original). Rothfeder testified that he told Thomas and McKenzie that the Baucom fee would be about $1.2 million because he “did not want to ‘overestimate fees net to the firm.’ He said, ‘... I’m conservative and never overestimate my fees, and never have.’ ” Rothfeder’s brief, at 30; Parr’s brief, at 29.

Upon Rothfeder’s request, McKenzie prepared a memorandum outlining the proposed allocation of the Baucom fee. Rothfeder and Parr argue that the proposed allocation “differed greatly from the law firm’s past practices with respect to the allocation of contingency fees.” Roth-feder’s brief, at 31; Parr’s brief, at 29. According to Rothfeder and Parr, prior contingency fees had been allocated based on the five-percent rule. However, the firm argues that in May 2003 the board of directors unanimously adopted a new compensation system, known as the Hilde-brandt plan. Under the Hildebrandt plan, attorneys for the firm

“would each present an annual plan, which included their active files and expected income from same, and other factors the firm should consider in determining the attorney’s compensation for the year. An Executive Committee was appointed by the Board of Directors to review the plan and, at year end, recommend individual attorney compensation to the Board [of Directors]. The Board [of Directors] would then adopt, modify or reject the Executive Committee’s recommendations.”

The firm’s brief, at 12. The firm argues that McKenzie’s memorandum “reiterated that the Hildebrandt plan adopted by the Board of Directors in 2003 expressly addressed how contingency fees are to be handled by the firm, and that the Executive Committee would also, as provided by the Hildebrandt plan, make a recommendation regarding the fee’s allocation.” The firm’s brief, at 16.

Rothfeder and Parr acknowledge that the board of directors adopted the Hilde-brandt plan in 2003, but they argue that the Hildebrandt plan was “adopted only ‘for calendar year 2003.’” Rothfeder’s brief, at 33; Parr’s brief, at 31. Parr testified that

“[i]t was her belief that the five-percent rule would apply to any contingency fee paid by the Baucom estate pursuant to the February 27, 2003 engagement letter executed prior to adoption of the Hildebrandt compensation proposal.

Parr testified that she was not aware of any change in the method of allocation of contingency fees:

“ ‘No I am not. In 2003, when the Hildebrandt Proposal was brought to the firm by the Executive Committee, I remember distinctly a dialogue between Alan Rothfeder and Robert Gil-pin wherein [Rothfeder] asked, “What happens if I hit another big fee[?]” Robert’s response was, “We haven’t worked that out yet. We don’t know how that’s going to be handled.”
“ ‘This was of prime importance to me because in February, before this, I had agreed to accept responsibility for doing all the work in what would be a major case in the Baucom matter. And I anticipated that I was going to have to expend substantial hours if I were to reap the rewards of that case.
“‘So had Mr. Rothfeder not received that response from Robert Gil-pin, I would have inquired further, but I, you know, accepted Robert’s word that, hey, this hasn’t been worked out, and this was going to be dealt with I thought as a separate matter.’ ”

Rothfeder’s brief, at 34-35; Parr’s brief, at 32-33.

Rothfeder and Parr met again with Thomas to try to resolve the dispute over disbursement of the Baucom fee. The firm says that Rothfeder and Parr proposed that the firm receive 15% and the attorneys who worked on the matter receive 85%. The firm rejected the offer.

On May 23, 2007, the firm, acting through its executive committee, sent Rothfeder and Parr a letter, stating, among other things, that it found Rothfeder and Parr’s arrangement with Warren and their actions with regard to the Bau-com fee questionable. The firm also stated that placing the entire Baucom fee in escrow and outside the firm’s control was unacceptable. The firm then demanded that Rothfeder and Parr execute an “Acknowledgment and Power of Attorney,” giving the firm control of the escrow account containing the Baucom fee. The firm stated that it was “prepared to call a special meeting of the shareholders ... in order to address the firm’s response if you do not sign. There is also a possibility that we should have such a meeting even if you do sign.”

Rothfeder testified that “the statement in the Executive Committee’s letter that he had placed the fee outside the control of the law firm was a ‘total misstatement, and it was an insinuation that [he] took their money.’ ” Rothfeder’s brief, at 37; Parr’s brief, at 35. Rothfeder insisted that “[he] had no control over the money. There was no way that [he] wasn’t going to let that money come in. It belonged to the firm.” Rothfeder’s brief, at 37; Parr’s brief, at 35. Rothfeder and Parr responded to the firm’s May 23, 2007, letter by resigning from the firm.

The firm states that, on May 31, 2007, Thomas e-mailed Rothfeder and Parr, “ask[ing] them to meet with him again to assist the firm in billing their clients so they could all easily and professionally transition for their departure.” The firm’s brief, at 19. The firm says that Rothfeder and Parr did not respond to that request or to subsequent requests for help with billing their clients. Based upon its best available records, the firm eventually billed Rothfeder’s and Parr’s clients for the work performed by Rothfeder and Parr before their departure from the firm.

In August 2007, the firm sued Rothfeder, Parr, and Warren, seeking, among other things, a judgment declaring that the Baucom fee was the firm’s property. Rothfeder and Parr answered the complaint and filed a counterclaim, alleging, among other things, that, by failing to act reasonably and fairly in matters regarding compensation, the firm’s executive committee had breached its fiduciary and contractual duties to Rothfeder and Parr.

In November 2007, the parties reached a settlement with Warren. Warren was allowed to retain $200,000 of the Baucom fee, as well as any interest earned on the escrowed funds. Warren deposited the remaining $1.4 million with the circuit clerk, who deposited the money in an interest-bearing account “to be disbursed pursuant to agreement of the law firm and Rothfeder/Parr or court order.” All claims against Warren were then dismissed with prejudice.

Between July 2008 and the bench trial in October 2009, the trial court allowed Roth-feder and Parr to amend their counterclaim several times and to interplead fees paid by clients for services rendered before they resigned from the firm. Roth-feder and Parr claimed that they were entitled to those interpleaded funds. On October 20, 2009, Rothfeder and Parr moved the trial court to allow them to amend their counterclaim to add claims seeking recovery under a theory of quantum meruit and alleging unjust enrichment.

Also during that time, the firm made several amendments to its complaint, alleging, among other things, that all the interpleaded funds, including the Baucom fee, were the property of the firm. The firm further claimed that, by interpleading those funds into the trial court instead of turning them over to the firm, Rothfeder and Parr had continued to interfere with the firm’s business and its contractual relationships with its clients.

On November 23, 2009, following a bench trial, the trial court entered its final judgment, which included the following findings of fact:

“1. The affairs of the law firm are governed by the by-laws, resolutions, plans and actions adopted by. the board of directors of the law firm.
“2. For at least the last ten years, all compensation, salary, bonuses or money of any kind received by attorneys including [Rothfeder and Parr] from the law firm has been approved and authorized by the board of directors. In fact, the evidence shows that this has been the practice since the inception of the [firm] in 1983. For the years 2003 and forward, all compensation, salary, bonuses or money of any kind received by all attorneys including [Rothfeder and Parr] has been recommended by the executive committee of the law firm and then approved by the board of directors of the law firm.
“3. [Rothfeder and Parr] voluntarily left and disassociated themselves from [the firm] and [Rothfeder’s and Parr’s] stock in [the firm] has no marketable value.
“4. [Rothfeder and Parr] are no longer participants in the business of the law firm and therefore have no further participation in the dispensation of the law firm’s assets.”

The trial court then ordered:

“a. The Joint Motion of Defendants Rothfeder and Parr for leave to amend counterclaims, filed on October 20, 2009, is GRANTED.
“b. In regard to the [firm’s] Complaint as Amended, judgment is hereby rendered in favor of the [firm] and against [Rothfeder and Parr].
“c. In regard to the Counterclaims of [Rothfeder and Parr] as Amended, judgment is hereby rendered in favor of the [firm] and against [Rothfeder and Parr] except as set forth in paragraphs d & e below.
“d. The Clerk is directed to pay and disburse from the interpled funds the sum of [$340,000] made payable to the Defendant Alan E. Rothfeder and delivered to his attorney, Marvin H. Campbell.
“e. The Clerk is directed to pay and disburse from the interpled funds the sum of [$50,000] made payable to the Defendant Jo Karen Parr and delivered to her attorney, James Anderson.
“f. The [firm] is entitled to have and recover the remaining balance of the interpled funds being held by the Clerk of the Court and such funds shall be disbursed and made payable by the Clerk to [the firm] and delivered to its attorney Joe Espy, III.
“g. [Rothfeder and Parr] shall have no further right, title or interest in the [firm] and [Rothfeder’s and Parr’s] stock in [the firm] is hereby cancelled and declared to be null and void.
“h. Any remaining claims by the parties not separately disposed of in this Order are hereby denied on the merits.
“i. All parties shall be responsible for their own attorney’s fees in this case.
“j. The parties shall bear their own costs.”

Rothfeder and Parr each moved for a new trial or, in the alternative, to alter and amend the judgment. The trial court denied those motions. Rothfeder and Parr now appeal separately (cases no. 1090639 and no. 1090671), and the firm cross-appeals (cases no. 1090723 and no. 1090724).

Analysis

“[T]rial courts, in the ordinary discharge of their duties, [should] review their judgments to insure that such judgments are internally consistent and, if necessary, supported by sufficient findings to permit review on appeal.” Forbes v. Hawaii Culinary Corp., 85 Haw. 501, 507 n. 5, 946 P.2d 609, 615 n. 5 (Haw.Ct.App.1997). Effective appellate review is not possible where there is “some inconsistency” in the trial court’s judgment, and this Court “cannot definitively conclude from the record what the trial court intended when it entered” its judgment. McCutcheon v. Slade, 993 So.2d 428, 482 (Ala.2007). The parties raise several issues for this Court to consider. However, effective review of those issues is foreclosed by inconsistencies in the trial court’s judgment.

The judgment is fraught with inconsistency. The trial court first renders judgment in favor of the firm “[i]n regard to the [firm’s] Complaint as Amended.” As previously mentioned in this opinion, the firm, in its amended complaint, claimed that all the funds at issue — including the Baucom fee and the other interpleaded funds — were the property of the firm and, therefore, should be under the firm’s control. However, the trial court, without explanation, then directs the clerk to disburse from the interpleaded funds it had just declared to be the property of the firm $340,000 to Rothfeder and $50,000 to Parr. Those directions are inconsistent with the earlier portion of the trial court’s judgment in favor of the firm with regard to its amended complaint.

The trial court’s findings of fact cast no light upon what the trial court intended when it entered its judgment; instead, they reveal only more apparent inconsistency in the judgment. The trial court found that, “[f]or the years 2003 and forward, all compensation, salary, bonuses or money of any kind received by all attorneys including [Rothfeder and Parr] has been recommended by the executive committee of the law firm and then approved by the board of directors of the law firm.” It is undisputed that, in December 2007, the firm’s board of directors approved the executive committee’s recommendation that Rothfeder and Parr receive no additional compensation for the work they had performed before their resignations from the firm. Nevertheless, the trial court awarded Rothfeder and Parr portions of the interpleaded funds that it had, in effect, previously declared to be the firm’s property and subject to distribution as approved by the firm’s board of directors.

Finally, the amounts the trial court awarded, without explanation, to Rothfeder and Parr reveal nothing concerning the trial court’s intentions when it entered its judgment. Indeed, the parties agree that the amounts awarded have no basis in fact. “The basic problem presented by our inability to determine how the trial court arrived at the figures recited in its order is that we cannot determine with precision the exact evidence upon which that court relied” in directing the clerk to disburse to Rothfeder and Parr amounts from the in-terpleaded funds. Hensley v. Poole, 910 So.2d 96, 103 (Ala.2005).

For these reasons, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

1090639 — REVERSED AND REMANDED.

1090671 — REVERSED AND REMANDED.

1090723 — REVERSED AND REMANDED.

1090724 — REVERSED AND REMANDED.

STUART, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., recuses herself.

      . It appears that before 2003 the firm had compensated its attorneys according to a "five-percent rule,” in which 5% of the contingency fee was distributed to the firm and the remaining 95% was divided among the attorneys who had worked on the case and the attorney that originated the case.