author: STUART, Justice.

text:
    Lakyra ELLIOTT v. NAVISTAR, INC., and IC Bus, LLC. Nequaisha Bland v. Navistar, Inc., and IC Bus, LLC. Seville Briggs v. Navistar, Inc., and IC Bus, LLC. Ishakey Bennett v. Navistar, Inc., and IC Bus, LLC. Freddie Washington v. Navistar, Inc., and IC Bus, LLC. Phillip Hinton v. Navistar, Inc., and IC Bus, LLC. Yolanda Moore v. Navistar, Inc., and IC Bus, LLC. Kyle Rose v. Navistar, Inc., and IC Bus, LLC. Anthoni T. Moore v. Navistar, Inc., and IC Bus, LLC. Lawanda Jefferson v. Navistar, Inc., and IC Bus, LLC. Tassarian Fletcher v. Navistar, Inc., and IC Bus, LLC. Charles Ford v. Navistar, Inc., and IC Bus, LLC. Shirley Ann Davidson, as mother and next friend of Joe Davidson, a minor v. Navistar, Inc., and IC Bus, LLC. James O. Garth v. Navistar, Inc., and IC Bus, LLC. Dawon Massey v. Navistar, Inc., and IC Bus, LLC.
    1090152, 1090153, 1090154, 1090155, 1090156, 1090159, 1090160, 1090161, 1090162, 1090163, 1090164, 1090165, 1090166, 1090167, and 1090168.
    Supreme Court of Alabama.
    Dec. 3, 2010.

      Douglas J. Fees of The Cochran Firm-Huntsville, Huntsville, for appellants.
    De Martenson and Anna Katherine Bowman of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellees.
   STUART, Justice.

Lakyra Elliott, Nequaisha Bland, Seville Briggs, Ishakey Bennett, Freddie Washington, Phillip Hinton, Yolanda Moore, Kyle Rose, Anthoni T. Moore, Lawanda Jefferson, Tassarian Fletcher, Charles Ford, James 0. Garth, Dawon Massey, and Shirley Ann Davidson, as mother and next friend of Joe Davidson, a minor (“the plaintiffs”), asserted products-liability, breach-of-warranty, and negligence and/or wantonness claims against Navistar, Inc., formerly known as International Truck & Engine Corporation, Inc., and its wholly owned subsidiary IC Bus, LLC, formerly known as IC Corporation (collectively referred to as “the bus companies”), in the Madison Circuit Court, seeking damages for injuries sustained in an accident involving a school bus designed, manufactured, and sold by the bus companies. The trial court entered a summary judgment in favor of the bus companies, and the plaintiffs appeal. We reverse and remand.

I.

On November 20, 2006, a school bus transporting approximately 40 students from Lee High School in Huntsville to the Huntsville Center for Technology was struck by another vehicle while traveling on an elevated portion of U.S. Interstate 565 in Huntsville. As a result of the collision, the bus ran over a 32-inch high concrete barrier on the left side of the roadway and fell approximately 30 feet to the ground below, killing four students and injuring the other students to varying degrees.

On February 9, 2007, 14 of the plaintiffs filed separate complaints in the Madison Circuit Court asserting claims against Laidlaw Transit, Inc., which owned and operated the bus involved in the accident; Anthony Scott, an employee of Laidlaw Transit who was driving the bus at the time of the accident; and Tony Williams, the driver of the other car involved in the accident. Those plaintiffs also identified as fictitiously named defendants “those persons, corporations, associations, firms, or other entities, who or which designed, manufactured, marketed, advertised, sold, or otherwise placed into the stream of commerce, the school bus, or any component thereof’; however, they did not assert any claims against those fictitiously named defendants at that time.

Multiple other complaints were filed around this same time by other students who were injured in the bus accident, and, on October 29, 2007, the 26 cases stemming from the bus accident that were then pending in the Madison Circuit Court were assigned to the same judge. Some of those eases named the bus companies as defendants and included claims asserted against them; however, at that time the plaintiffs’ cases did not.

The trial court thereafter officially consolidated the cases for pretrial purposes, and the parties engaged in discovery. Eventually, the plaintiffs entered into settlement agreements with Laidlaw Transit, Scott, and Williams. However, after settling their claims against those defendants, the plaintiffs retained a new attorney, and, in April, May, and June 2009, they filed amended complaints asserting products-liability, breach-of-warranty, and negligence and/or wantonness claims against the bus companies. On approximately June 29, 2009, the bus companies moved for a summary judgment on all the claims asserted against them, arguing that the claims were barred by the applicable statute of limitations because they were not asserted until, at the earliest, April 2009 — more than two years after the November 20, 2006, bus accident. The bus companies also argued that the claims were barred by the doctrine of waiver and the doctrine of laches.

The plaintiffs opposed the bus companies’ summary-judgment motion, arguing that the injured parties were all minors at the time of the accident and that, under Alabama law, the statute of limitations for their claims was therefore tolled until their 19th birthdays and that the doctrines of waiver and laches did not apply. On September 16, 2009, the trial court granted the bus companies’ motion for a summary judgment, noting that “[t]he Plaintiffs’ claims against [the bus companies] are barred by the doctrine of laches, the doctrine of waiver and ... the applicable statute of limitations.” On October 26, 2009, the plaintiffs filed timely notices of appeal to this Court. On August 4, 2010, the clerk of this Court entered an identical order in each of these 15 appeals remanding this case to the trial court. That order stated:

“It appearing to the Court that claims stated against Tony Lamar Williams, Anthony Tyrone Scott, and Laidlaw Transit, Inc., have not been adjudicated,[] these causes are remanded to you for a determination as to whether to (1) make the interlocutory order of September 16, 2009, in favor of [the bus companies] and against the plaintiffs, a final judgment, pursuant to the provisions of Rule 54(b), Alabama Rules of Civil Procedure; or (2) adjudicate the remaining claims, thus making the interlocutory orders of September 16, 2009, final and appealable; or (3) do nothing, in which event the appeals will be dismissed as from a non-final order.”

Following an extension of time for responding to the remand order, the trial court filed a supplemental record on appeal on September 24, 2010, certifying the interlocutory order of September 16, 2009, in favor of the bus companies as final pursuant to Rule 54(b), Ala. R. Civ. P.

II.

The plaintiffs argue that the trial court erred by entering a summary judgment in favor of the bus companies because none of the grounds cited by the trial court — statute of limitations, waiver, and/or laches— apply to the claims they have asserted against the bus companies. We consider each of those grounds in turn.

The plaintiffs first argue that the trial court erred in holding that their claims against the bus companies were barred by the statute of limitations because, they argue, the trial court failed to give effect to § 6-2-8(a), Ala.Code 1975. The bus companies, however, argue that the summary judgment was correctly entered because, they argue, § 6-2-8(a) does not apply. “Because the resolution of this issue is a matter of mere statutory construction, the standard of review is de novo.” Arthur v. Bolen, 41 So.3d 745, 748 (Ala.2010) (citing Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009)). Our inquiry is governed by the following well settled principles of statutory construction:

“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006).

Section 6-2-8(a) provides:

“If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time the right accrues, below the age of 19 years, or insane, he or she shall have three years, or the period allowed by law for the commencement of an action if it be less than three years, after the termination of the disability to commence an action, make entry, or defend. No disability shall extend the period of limitations so as to allow an action to be commenced, entry made, or defense made after the lapse of 20 years from the time the claim or right accrued. Nothing in this section shall be interpreted as denying any imprisoned person the right to commence an action enumerated in this chapter and to make any proper appearances on his or her behalf in such actions.”

The plaintiffs have submitted evidence establishing that the injured students were all under the age of 19 at the time of the bus accident and that the plaintiffs amended their individual complaints to assert claims against the bus companies within the two-year period after the injured students turned 19; accordingly, they argue, their claims are timely because the plain language of § 6-2-8 indicates that the two-year statute of limitations applicable to their claims was tolled during the pen-dency of their minority.

The bus companies, however, argue that § 6-2-8 does not apply in cases, such as these, where injured minors are represented by guardians or next friends who, in fact, initiated actions on their behalf while the injured parties were still minors. In support of that argument, the bus companies cite Lee v. Wood, 85 Ala. 169, 170, 4 So. 698, 693 (1888), in which this Court held that the general rule that “statutes of limitation do not run against those laboring under a personal disability, such as infancy ... does not apply to infants, or other persons disabled, who have a trustee capable of suing”; and Spann v. First National Bank of Montgomery, 240 Ala. 539, 545, 200 So. 554, 559 (1941), in which this Court stated:

“It is clear enough there is here shown no such exception. The guardian all along not only had the power but was also under the duty to rescind the transactions and bring the suit. Not having done so, the bar of the statute of limitation of six years presents a bar to the suit by the guardian and likewise is applicable to the ward.”

The plaintiffs counter by arguing that Lee and Spann are distinguishable inasmuch as they involved appointed guardians or trustees who had a duty to bring an action on behalf of the minor parties they represented — not next friends who had no duty to assert claims such as those asserted here — a distinction the plaintiffs argue was recognized by this Court in Emerson v. Southern Ry., 404 So.2d 576, 579 (Ala. 1981) (“It is clear to us, however, that failure on the part of the representative to file or pursue this claim within the limitation period does not bar recovery where § 6-2-8 is applicable.”).

We agree with the plaintiffs that § 6-2-8 applies to the claims they asserted against the bus companies and that those claims accordingly are not barred by the statute of limitations. Section 6-2-8(a) clearly provides that a minor entitled to commence “any of the actions enumerated in this chapter ... shall have three years, or the period allowed by law for the commencement of an action if it be less than three years, after the termination of the disability to commence an action.... ” This language is unambiguous; there is, accordingly, no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). The claims asserted by the plaintiffs against the bus companies were subject to a two-year statute of limitations (see supra note 5), and they were accordingly entitled to assert those claims at any time before the injured parties turned 21. Section 6-2-8 contains no exception indicating that the statute ceases to have application merely because a minor’s representative pursued some claims belonging to the minor while failing to bring other claims, and “courts have no authority to engraft exceptions, which are not found in the statutes.” Barclay v. Smith, 66 Ala. 230, 232 (1880). This Court has also indicated on previous occasions that the statute of limitations does not run on a minor’s claims regardless of whether the minor’s representative failed to or elected not to pursue claims on the minor’s behalf, negligently pursued claims on the minor’s behalf, or even if the minor’s representative pursued some claims while failing to pursue others. See Emerson, 404 So.2d at 579 (stating that, although a representative may file a claim on behalf of an injured minor, the failure to do so does not bar the minor from later doing so if § 6-2-8 is applicable); Spurling v. Fillingim, 244 Ala. 172, 176, 12 So.2d 740, 743 (1943) (holding that a minor, who initiated an action through her next friend within the applicable one-year limitations period, seeking damages for injuries sustained in an automobile accident was permitted to amend her action to add another defendant even after that one-year period expired because her right to maintain an action would continue for one year after she reached the age of majority); Hood v. Johnston, 210 Ala. 617, 619, 99 So. 75, 77 (1924) (stating that plaintiff was entitled to sue in his own name upon reaching the age of majority regardless of “whatever may or may not have been done by his guardian”); and McLaughlin v. Beyer, 181 Ala. 427, 437, 61 So. 62, 65 (1913) (“The neglect or dereliction of a next Mend, in the prosecution of a suit or in allowing a dismissal thereof, ought not to be allowed to prejudice the rights or remedies of the infant, and such seems to be the weight of the authority on the subject.”). To the extent Lee and Spann are in conflict with these cases and with the plain language of § 6-2-8, we hereby overrule them.

It is undisputed that the plaintiffs asserted their claims against the bus companies before the injured parties reached the age of 21. The trial court therefore erred by relying on the statute of limitations as a basis for entering a summary judgment in favor of the bus companies.

III.

The plaintiffs next argue that the trial court erred by holding that they had waived their rights to assert claims against the bus companies. Before the trial court, the bus companies argued that the plaintiffs had waived their rights to pursue claims against them because, the bus companies argued, the bus companies’ role in designing and manufacturing the bus was always known — as evidenced by the fact that other students injured in the bus accident had named the bus companies as defendants in actions filed the same month as the plaintiffs’ actions — yet the plaintiffs nevertheless took no action to name the bus companies as defendants for over two years while they actively pursued claims against Laidlaw Transit, Scott, and Williams. The plaintiffs deny that their conduct in this litigation demonstrated an intent to waive their rights to pursue claims against the bus companies, and they argue that if they had intended to waive such claims they would not have identified as fictitiously named defendants in their complaints “those persons, corporations, associations, firms, or other entities, who or which designed, manufactured, marketed, advertised, sold, or otherwise placed into the stream of commerce, the school bus, or any component thereof.”

This Court has stated that

“ ‘[a] waiver consists of a “voluntary and intentional surrender or relinquishment of a known right,” Dominex, Inc. v. Key, 456 So.2d 1047, 1058 (Ala.1984), and the burden of proof in establishing a waiver rests upon the party asserting the claim.’ Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 93 (Ala.2005). Moreover, whether a party has voluntarily or intentionally waived a known right is normally a jury question. See Edwards v. Allied Home Mortgage Cap ital Corp., 962 So.2d 194, 209 (Ala. 2007).”

Horne v. TGM Assocs., L.P., 56 So.3d 615, 624 (Ala.2010). A summary judgment should be entered only if there is no genuine issue of material fact when the record is viewed in the light most favorable to the nonmovant. Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001). Assuming, without deciding, that a delay in asserting a claim not subject to a statute-of-Iimita-tions defense can work a waiver of that claim, we first note that “[wjhether there has been a waiver is a question of fact,” Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 93 (Ala.2005), and, in light of the record in this case, we cannot agree with the trial court that there is no question that the plaintiffs intended to voluntarily relinquish their right to assert their claims against the bus companies. The summary judgment entered by the trial court cannot stand on the basis of the doctrine of waiver.

IV.

The plaintiffs’ final argument is that the trial court erred in concluding that their claims against the bus companies should be barred by the doctrine of laches. “ ‘Laches’ is defined as neglect to assert a right or a claim that, taken together with a lapse of time and other circumstances causing disadvantage or prejudice to the adverse party, operates as a bar.” Ex parte Grubbs, 542 So.2d 927, 928 (Ala.1989) (citing Black’s Law Dictionary 787 (5th ed.1979)). It is an equitable doctrine applied by the courts to prevent a party that has delayed asserting a claim to assert that claim after some change in conditions has occurred that would make belated enforcement of the claim unjust. Ex parte Grubbs, 542 So.2d at 929. A party asserting laches as a defense is generally required to show that the plaintiff has delayed in asserting a claim, that that delay is inexcusable, and that the delay has caused the party asserting the defense undue prejudice. Id. The plaintiffs argue that laches cannot bar a claim if the statute of limitations has not yet run on that claim; they also argue that, regardless, they did not delay in asserting their claims against the bus companies and that, even if this Court were to find that they had delayed, there is no evidence indicating that the bus companies were unduly prejudiced by any such delay. The bus companies argue that the doctrine of laches may bar a claim even if the statute of limitations has not expired and that the plaintiffs did in fact delay in asserting their claims and that that delay has caused the bus companies undue prejudice.

The bus companies have cited numerous cases in support of their argument that the doctrine of laches should be applied in this case, regardless of whether the statute of limitations has run, see Multer v. Multer, 280 Ala. 458, 463, 195 So.2d 105, 109 (1966), Alabama Cablevision Co. v. League, 416 So.2d 433, 435 (Ala.Civ.App. 1982), and United States of America v. Olin Corp., 606 F.Supp. 1301, 1309 (N.D.Ala.1985); however, none of those cases involved a claim for money damages subject to a statute of limitations. In Ballenger v. Liberty National Life Insurance Co., 266 Ala. 407, 410, 96 So.2d 728, 731 (1957), this Court addressed this specific issue and stated;

“There is competent authority elsewhere based on unassailable rationale holding that where the issue involved is a legal one and does not lie within the breast or conscience of the chancellor the statute of limitation is the applicable rule and the defense of laches may not properly be interposed.”

After reviewing the caselaw from Kentucky to which it referred, see Gover’s Administrator v. Dunagan, 299 Ky. 38, 184 S.W.2d 225 (1944), and Crawford’s Administrator v. Ross, 299 Ky. 664, 186 S.W.2d 797 (1945), the Ballenger Court concluded:

“The principle enunciated by the Kentucky Court impresses us as being thoroughly sound. Therefore, the issue now under consideration is, we think, ruled by the stated principle. A claim for conversion is a legal one cognizable at law, with the result that the defense of laches may not be applied, even though the claim ‘got into equity under the removal statute. If the contrary view should be upheld, untoward illogical consequences would obtain. It would be purposeless to multiply the many ridiculous illustrations, but it is conceivable that under such a view most all actions at law could be moved into equity so the defendant could plead laches and thereby subvert the right of trial by jury and operation of the applicable statute of limitation.”

266 Ala. at 411, 96 So.2d at 733. Applying the holding of Ballenger to the present case — which involves a claim for money damages — we agree with the plaintiffs that the doctrine of laches should not be applied to bar their claims because, as discussed supra, the statute of limitations has not yet run on their claims. Accordingly, the trial court erred to the extent the summary judgment in favor of the bus companies was based on the doctrine of laches.

V.

The trial court entered a summary judgment in favor of the bus companies, stating in its order that “[t]he [plaintiffs’ claims against [the bus companies] are barred by the doctrine of laches, the doctrine of waiver and ... by the applicable statute of limitations.” However, the plaintiffs have established that none of those grounds, in fact, apply to their claims against the bus companies. The judgment entered in favor of the bus companies is accordingly reversed, and the cause is remanded for further proceedings consistent with this opinion.

1090152 — REVERSED MANDED. AND RE-

1090153 — REVERSED MANDED. AND RE-

1090154 — REVERSED MANDED. AND RE-

1090155 — REVERSED MANDED. AND RE-

1090156 — REVERSED MANDED. AND RE-

1090159 — REVERSED MANDED. AND RE-

1090160 — REVERSED MANDED. AND RE-

1090161 — REVERSED MANDED. AND RE-

1090162 — REVERSED MANDED. AND RE-

1090163 — REVERSED MANDED. AND RE-

1090164 — REVERSED MANDED. AND RE-

1090165 — REVERSED MANDED. AND RE-

1090166 — REVERSED MANDED. AND RE-

1090167 — REVERSED AND REMANDED.

1090168 — REVERSED AND REMANDED.

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

WOODALL, J., concurs in the result.

      . The 15th plaintiff, Garth, filed a similar complaint on February 7, 2008.

      . The new attorney retained by the plaintiffs was already involved in this litigation representing other students who had been injured in the bus accident and who had previously asserted claims against the bus companies.

      . Apparently, although the plaintiffs’ claims against Williams, Scott, and Laidlaw Transit had been settled, the trial court had not yet dismissed the claims against those defendants.

      .These cases were assigned to Justice Stuart on September 27, 2010.

      . The plaintiffs further note that their wantonness claims are actually subject to a six-year statute of limitations and that the trial court erred by failing to recognize that fact; however, the bus companies argue that the plaintiffs failed to raise this issue in the trial court and argue that the plaintiffs cannot now raise it. Our resolution of this appeal ultimately makes it unnecessary to consider these issues.

      . The original complaints in the underlying cases were styled to reflect that the injured minors were suing by and through a parent. The notices of appeal in 14 of the appeals name only the injured parties.

      . The plaintiffs have responded to the argument that they waived their claims against the bus companies only by arguing that there is insufficient evidence indicating such a waiver; they have not addressed the issue whether a party can waive a claim by a delay in its assertion that does not extend beyond the applicable limitations period.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Ex parte Cristian DRAGOMIR. (In re James Pike v. CRST Malone, Inc., and Cristian Dragomir).
    1091504.
    Supreme Court of Alabama.
    Dec. 17, 2010.
    J. Mitchell Frost, Jr., and Bradley L. Hendrix of Ferguson, Frost & Dodson, LLP, Birmingham, for petitioner.

      W. Lee Pittman and J. Chris Cochran of Pittman, Dutton & Heliums, P.C., Birmingham; and Timothy B. Davis of Davis & Davis, LLC, Alexander City, for respondent.
   SMITH, Justice.

Cristian Dragomir, one of the defendants in an action filed by James Pike in the Tallapoosa Circuit Court, petitions for the writ of mandamus requesting this Court to direct the trial court to vacate its order denying Dragomir’s motion to dismiss the claims against him for lack of personal jurisdiction. We grant the petition and issue the writ.

Factual Background and Procedural History

The underlying case arose from an accident that occurred in December 2008 on Interstate 80 near Iowa City, Iowa. The accident involved a tractor-trailer driven by Pike and a tractor-trailer driven by Dragomir. At the time of the accident, Pike, an Alabama resident, was employed by Mount Vernon Mills, Inc., d/b/a Avon-dale Trucking (“Avondale”), and was driving a tractor-trailer belonging to Avondale. Dragomir, a resident of Michigan, was employed by CRST Malone, Inc. (“CRST”), and was driving a tractor-trailer he had leased to CRST.

In May 2009, Pike sued Avondale, Dra-gomir, and CRST, among others, in the Tallapoosa Circuit Court seeking damages for various injuries he sustained in the accident. In August 2009, Dragomir moved to dismiss the claims against him under Rule 12(b)(2), Ala. R. Civ. P., asserting that the trial court did not have personal jurisdiction over him. Pike filed a written response to the motion, and the trial court held a hearing in August 2009 on the motion. The trial court, however, postponed ruling on the motion until the parties could conduct limited discovery on the issue of personal jurisdiction and until a further hearing could be held.

On May 4, 2010, the trial court entered an order setting the matter for trial on August 2, 2010. The trial court’s order also required Dragomir to appear on June 8, 2010, for a deposition limited to the issue of personal jurisdiction. After the deposition, Dragomir renewed his motion to dismiss.

The trial court held a hearing on Drago-mir’s motion to dismiss on June 25 and then gave the parties additional time to submit evidence on the issue of personal jurisdiction. On July 22, 2010, the trial court denied Dragomir’s motion. The trial court’s order denying the motion states that Dragomir’s contacts with Alabama “were continuous and systematic and were purposefully directed toward Alabama” and that “Dragomir could reasonably anticipate being haled into an Alabama court.”

Dragomir petitioned this Court for the writ of mandamus and moved for a stay of the trial of the matter pending this Court’s resolution of his petition. We granted Dragomir’s motion for a stay and ordered Pike to file an answer and brief.

Standard of Review
“ ‘ “ ‘The writ of mandamus is a drastic and extraordinary writ, to be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, [807 So.2d 534,] 536 [(Ala. 2001) ].”
‘Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).’”

Ex parte Excelsior Fin., Inc., 42 So.3d 96, 100 (Ala.2010) (quoting Ex parte Bufkin, 936 So.2d 1042, 1044-45 (Ala.2006)).

Discussion

In Excelsior Financial, 42 So.3d at 100-02, this Court provided the following summary of the law in Alabama regarding personal jurisdiction:

“ ‘The extent of an Alabama court’s personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama’s “long-arm rule,” bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(b), as amended in 2004, states:
“ ‘ “(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ”
“ ‘In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala. 1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala.1977).
As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006): “Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions.” (Emphasis added.)
“ ‘This Court discussed the extent of the personal jurisdiction of Alabama courts in Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002):
“ ‘ “This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447, 449 (Ala.1977). See also Rule 4.2, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision following Rule 4.4, under the heading ‘ARCP 4.2.’ (‘Subparagraph (I) was included by the Committee to insure that a basis of jurisdiction was included in Alabama procedure that was coextensive with the scope of the federal due process clause....’).
“ ‘ “The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).” ’

“Ex parte DBI, Inc., 23 So.3d 635, 643-44 (Ala.2009) (footnote omitted).

“‘Furthermore, this Court has explained:
The sufficiency of a party’s contacts are assessed as follows:
“ ‘ “ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic. ” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“ “ ‘Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result) ....
“ ‘ “In the case of either general in personam jurisdiction or specific in personam jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.’ Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).”
“‘Elliott [v. Van Kleef], 830 So.2d [726,] 730-31 [ (Ala.2002) ] (emphasis added).’
“Sverdrup Tech., Inc. v. Robinson, 36 So.3d 34, 42-43 (Ala.2009).”

Because the underlying accident occurred in Iowa and Dragomir is a resident of Michigan, Pike acknowledges that the trial court could not find personal jurisdiction over Dragomir under a specific-jurisdiction analysis. See, e.g., Ex parte Gregory, 947 So.2d 385 (Ala.2006). Pike contends, however, that Dragomir’s contacts with Alabama were “continuous and systematic” and that the trial court therefore could find personal jurisdiction over Dragomir on a general-jurisdiction basis.

In Excelsior Financial, this Court quoted the following regarding the “appropriate analysis and the parties’ respective burdens on a personal-jurisdiction issue”:

“ ‘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 flies 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).”

42 So.3d at 103.

Pike’s complaint, as amended, alleges that at the time of the accident Dragomir was the “operator” of the tractor-trailer “entrusted to him by ... CRST ... while in the line and scope of his employment” with CRST. In support of his motion to dismiss, Dragomir submitted an affidavit stating (1) that he was not a resident of Alabama at the time of the underlying accident; (2) that the underlying accident occurred in Iowa; (3) that he was an independent contractor for CRST; (4) that he owned the tractor-trailer he was driving at the time of the accident but had leased it to CRST; and (5) that his primary contact with CRST was through its Rockport, Indiana, “terminal office.” This affidavit testimony was sufficient to shift the burden to Pike to present evidence substantiating that jurisdiction existed over Drago-mir. See Excelsior Fin., 42 So.3d at 103.

In attempting to demonstrate that Alabama has general jurisdiction over Drago-mir, Pike cites evidence indicating (1) that Dragomir, before he moved to Michigan, had been an Alabama resident from approximately 1992 to 1998 and (2) that Dragomir had some sporadic contact with Alabama after the accident in Iowa. However, Dragomir’s prior residency in Alabama — some 10 years before the accident in Iowa — is temporally too remote to serve as a basis for establishing that Dra-gomir had “continuous and systematic” contacts with Alabama that would sustain jurisdiction over Dragomir in the underlying action. Ex parte Phil Owens Used Cars, Inc., 4 So.3d 418, 426-27 (Ala.2008) (rejecting, as too remote to support general jurisdiction, the defendant’s contacts with Alabama that had occurred approximately 15 years before the accrual of the plaintiffs’ causes of action). Further, Dra-gomir’s sporadic contacts with Alabama after the accident in Iowa are irrelevant because “ ‘[o]nly contacts occurring prior to the event causing the litigation may be considered.’” Elliott v. Van Kleef, 830 So.2d 726, 731 (Ala.2002) (quoting Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 913 (9th Cir.1990)).

Pike also cites, in support of his contention that general jurisdiction over Dra-gomir exists, Dragomir’s business relationship with CRST. Pike argues that Dragomir’s “business or work-related contacts with Alabama” were both “substantial and systematic.”

The evidence that Pike and Dragomir submitted regarding Dragomir’s business relationship with CRST indicated the following. CRST is a Delaware corporation with a “terminal office” in Trussville, Alabama, as well as “terminal offices” in Indiana, Iowa, and Oklahoma. In 2006, Dragomir applied to become a driver for CRST. Dragomir applied at CRST’s facility in Rockford, Indiana, and his orientation occurred at that facility. According to the deposition testimony of Randy J. Ko-pecky, the corporate representative for CRST, Dragomir filled out and signed his application in Rockford, Indiana, and the application was then forwarded to CRST’s Trussville office for approval. The Truss-ville office then notified Dragomir that he had been approved to become a driver for CRST.

CRST initially provided Dragomir with a tractor. Dragomir later purchased the tractor from CRST, with CRST financing the purchase over a three-year period. Dragomir also initially leased a trailer from CRST but later bought his own trailer. Dragomir testified that he entered into the purchase agreement and the lease agreements in Indiana; the materials before us do not indicate whether CRST’s Trussville office ultimately considered or approved those agreements.

Dragomir also entered into an “exclusive operator’s agreement” with CRST under which he leased his tractor-trailer to CRST and drove only for CRST. The materials before us, however, do not indicate whether CRST’s Trussville office considered or approved the exclusive operator’s agreement or whether that agreement was made in Indiana. Dragomir’s tractor-trailer also had a Michigan license plate and a placard displaying CRST’s Department of Transportation (“DOT”) registration from the State of Alabama.

As a driver for CRST, Dragomir made deliveries across the United States. On at least a few occasions, he hauled and delivered loads within Alabama. In November 2007, while Dragomir was driving through Alabama to make a delivery in Georgia or South Carolina, Dragomir stopped on the shoulder of an interstate exit. While he was stopped, an Alabama State Trooper issued a citation to Dragomir for improper parking.

Dragomir was required to submit “driver logs” as well as bills of lading to CRST on roughly a weekly basis. Dragomir initially mailed these materials directly to the Trussville office. However, after the first few weeks, Dragomir began submitting his driver logs via TRANSFLO, a faxing system. The materials before us do not indicate where TRANSFLO was located; however, Kopecky testified that TRANS-FLO transmitted the logs to another third-party contractor, Rair, which Kopecky stated is located in Wisconsin. Rair made the logs available electronically for viewing by CRST for a six-month period. Drago-mir testified that he did not know where the documents he transmitted through TRANSFLO went or which CRST office received or viewed them. The materials before us do not indicate whether Drago-mir continued to mail his bills of lading or whether he also began submitting them to TRANSFLO.

CRST paid Dragomir a commission or “settlement” rather than a salary. At his deposition, Dragomir answered in the affirmative when he was asked if his “payroll came out of Birmingham.” However, Dra-gomir also testified that CRST never issued checks to him. Instead, CRST paid Dragomir by using a “Com Data” card in which funds were deposited in an account that Dragomir could access with a debit card. Kopecky testified that he thought the Trussville office “processed” Drago-mir’s commission or “settlement.” However, the materials before us do not indicate the location from which the funds were sent to the Com Data card or the location of the account in which the funds were deposited.

In summary, the extent of Drago-mir’s contacts with Alabama pertaining to his employment with CRST was as follows:

(1) CRST’s Trussville office ultimately approved the employment application Dragomir submitted in Indiana and “processed” Dragomir’s commissions or “settlements”;
(2) Dragomir’s tractor-trailer, which had a Michigan license plate, had a placard displaying CRST’s DOT registration from the State of Alabama;
(3) On at least a few occasions, Drago-mir had hauled and delivered loads within Alabama on behalf of CRST;
(4) Dragomir received a citation in Alabama for improper parking in November 2007 while he was en route to make a delivery in Georgia or South Carolina; and
(5) Dragomir mailed a few driver logs and bills of lading to CRST’s Truss-ville office when he first began driving for CRST, and Dragomir possibly continued to mail bills of lading, perhaps on a weekly basis, to CRST’s Trussville office after he began submitting his driver logs to TRANSFLO.

In support of his argument that these contacts are sufficient to establish general personal jurisdiction over Dragomir, Pike relies upon Leithead v. Banyan Corp., 926 So.2d 1025 (Ala.2005), and Ex parte Newco Manufacturing Co., 481 So.2d 867 (Ala. 1985). In Leithead, this Court found that the Alabama trial court had general jurisdiction over Banyan Corporation, a foreign corporation, based on the following contacts with Alabama: Banyan’s representatives placed an estimated 270 telephone calls to the plaintiff in Alabama; Banyan signed and then mailed an employment contract to the plaintiff in Alabama; Banyan mailed certificates to the plaintiff in Alabama indicating the plaintiffs acquisition of Banyan stock; Banyan had an agreement with the plaintiff under which his “activities in Alabama constituted, at least in part, a business presence by Banyan in [Alabama]”; Banyan employed an Alabama resident as one of its bookkeepers. 926 So.2d at 1031. In Newco, this Court held that Newco Manufacturing Company was subject to general jurisdiction in Alabama because Newco had engaged in a total of 2,000 transactions in Alabama over a 6-year period with annual sales of between $65,000 and $85,000 during that time. 481 So.2d at 869.

We disagree with Pike’s contention that Dragomir’s contacts with Alabama are analogous to the substantial contacts the defendant corporations had with Alabama in Leithead and Newco. Rather, we agree with Dragomir’s contention that his contacts with Alabama are more analogous to those of the defendant in Sporting Goods Distributors, Inc. v. Whitney, 498 F.Supp. 1088 (N.D.5.Fla.1980). Whitney involved an attempt by Sporting Goods Distributors, Inc., to enforce a default judgment entered in Alabama against James Whitney, a salesman, in an action arising out of an employment contract between Sporting Goods and Whitney. Whitney’s contacts with Alabama consisted of two brief visits and an unspecified number of telephone calls and letters directed to Sporting Goods’ headquarters in Mobile. The Whitney court rejected those contacts as sufficient to confer personal jurisdiction, stating:

“The contacts were not important and in no way could be construed as placing Whitney in a position where he relied on and enjoyed the benefits of Alabama’s laws. The visits were brief and not important to a business which was carried on primarily through the United States mail. As significant contacts with Alabama the phone calls and letters are particularly inadequate. Interstate communication is today an almost inevitable accompaniment to doing business and cannot fairly be considered a contact justifying exercise of jurisdiction. See, Lakeside Bridge and Steel Co. v. Mountain State Construction Co., Inc., 597 F.2d 596 (7th Cir.1979); Aaron Ferer and Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir.1977). Whitney’s two visits are peripherally related to the cause of action. He made them during performance of the contract involved. But they are not related to either the breach or the conversion and were at Sporting Goods’ urging.”

498 F.Supp. at 1091.

In the present case, Pike offered evidence indicating that Dragomir’s employment application, which was submitted to CRST’s facility in Rockford, Indiana, was ultimately forwarded by CRST to its Trussville office for processing and final approval by CRST. However, that isolated contact with Alabama was not sufficient to confer general jurisdiction over Drago-mir, particularly because Pike did not offer evidence indicating that Dragomir had had any continuous and systematic contact with Alabama during the course of his employment with CRST. Rather, Drago-mir’s contact with Alabama was sporadic and isolated. Pike did not offer evidence indicating that Dragomir continuously and systematically used the mail or other interstate facilities to contact CRST in Alabama; instead, the evidence indicated that Dragomir mailed bills of lading and his driver logs to the Trussville office on only a few occasions at the beginning of his employment. As noted above, the materials before us do not indicate whether, after he began submitting his driver logs to TRANSFLO, Dragomir continued to mail bills of lading to CRST’s Trussville office. See Whitney, supra; see also Leithead, 926 So.2d at 1031 (noting that “ ‘ “[t]he use of interstate facilities (telephone, the mail) ... [is a] secondary or ancillary factor[ ] and cannot alone provide the ‘minimum contacts’ required by due process” ’ ” (quoting Steel Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So.2d 910, 913 (Ala.1993) (additional citations omitted))). Additionally, Pike has not demonstrated that the decision to “process” Dragomir’s commissions or “settlements” at CRST’s Trussville facility was because of any contact that Dragomir purposefully directed toward Alabama. In view of these isolated, sporadic contacts with Alabama, it is of no consequence that the tractor-trailer Dragomir was driving at the time of the accident had a placard displaying an Alabama DOT registration. See, e.g., Johnson v. Ward, 4 N.Y.3d 516, 520, 797 N.Y.S.2d 33, 829 N.E.2d 1201, 1203 (N.Y. 2005) (rejecting, in a specific-jurisdiction analysis under New York law, the possession of a New York license and registration as sufficient to confer personal jurisdiction over the nonresident defendant who had been involved in an accident in New Jersey). Under these circumstances, Pike has not shown that Dragomir’s contacts with Alabama are “continuous and systematic” so as to confer jurisdiction over a claim against him for events occurring outside Alabama. Accordingly, Dra-gomir has demonstrated a clear legal right to the dismissal of the complaint on the basis that the trial court lacks personal jurisdiction over him.

Conclusion

Dragomir’s petition is granted. The trial court is directed to vacate its order denying Dragomir’s motion to dismiss and to enter an order dismissing Pike’s claims against Dragomir.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ„ concur.

      . Pike also relies upon Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Burger King, however, is addressed to specific jurisdiction rather than general jurisdiction and therefore is not helpful in determining whether Dragomir had “continuous and systematic” contacts with Alabama. See Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala. 1998) (Lyons, J. concurring in the result) ("Specific contacts, which give rise to specific personal jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.'1).

      . In Ex parte Puccio, 923 So.2d 1069, 1076 (Ala.2005), this Court observed: "Personal jurisdiction over an individual corporate officer or employee ‘may not be predicated upon jurisdiction over the corporation itself.' ” (Quoting Thames v. Gunter-Dunn, Inc., 373 So.2d 640, 641 (Ala.1979).) Thus, our analysis focuses on whether the contacts of Drago-mir, an employee of CRST, are sufficient to confer jurisdiction over Dragomir. The question of the sufficiency of contacts to confer jurisdiction over CRST is not before us.


author: PITTMAN, Judge.

text:
    ALABAMA DEPARTMENT OF ECONOMIC AND COMMUNITY AFFAIRS v. COMMUNITY SERVICE PROGRAMS OF WEST ALABAMA, INC.
    2080725.
    Court of Civil Appeals of Alabama.
    April 30, 2010.
    Rehearing Denied Dec. 30, 2010.

      Edward E. Davis, gen. counsel, Alabama Department of Economic and Community Affairs, for appellant.
    Jane L. Calamusa and Kathryn 0. Pope of Rosen Harwood, P.A., Tuscaloosa, for appellee.
   PITTMAN, Judge.

This appeal is taken by the Alabama Department of Economic and Community Affairs (“ADECA”) from a judgment of the Tuscaloosa Circuit Court that purported to reverse alleged decisions of ADECA that terminated the authority of Community Service Programs of West Alabama, Inc. (“CSP”), to distribute federal block grants to low-income energy consumers in Hale County and limited CSP’s authority to distribute such grants in nearby counties to a reimbursement basis on the stated grounds that (a) CSP had failed to include an elected official on its board from Hale County or a designee of such an official, and (b) CSP had failed to maintain an office in Greensboro, the county seat of and largest city in Hale County.

Pursuant to Alabama statutes, ADECA, as the successor to the former Alabama Office of State Planning and Federal Programs, is afforded authority over.the disbursement of grants and other forms of federal-government assistance intended for the promotion of the health, safety, and general welfare of citizens of the state, and it is empowered to exercise all powers necessary and proper for the discharge of its duties, including promulgating reasonable rules and regulations. See Ala.Code 1975, §§ 41-9-207, 41-9-211, and 41-23-1. Among the federal-government assistance programs that fall within ADECA’s regulatory auspices is the federal Low Income Home Energy Assistance Program (“LI-HEAP”), under which the Secretary of Health and Human Services is authorized to make grants to states to assist low-income households in making payments for home-energy consumption. See Ala. Admin. Code (ADECA), r. 305-5-2-.01 et seq., and 42 U.S.C. § 8621 et seq. Further, ADECA is required by statute and rule to “coordinate its activities” under LIHEAP “with similar and related programs administered by the federal government,” such as those programs that had previously been administered under the federal Economic Opportunity Act of 1964 (Pub.L. No. 88-452, 78 Stat. 508) before its 1981 repeal. Ala. Admin. Code (ADECA), r. 305-5-2-.05; 42 U.S.C. § 8624(b)(4).

CSP is what is known as a “community action agency”; it serves six west Alabama counties: Bibb, Fayette, Greene, Hale, Lamar, and Tuscaloosa. As the United States Court of Appeals for the Tenth Circuit noted in Gilmore v. Salt Lake Community Action Program, 710 F.2d 632 (10th Cir.1983), “[t]he concept of the community action agency originated in Title II of the Economic Opportunity Act of 1964.” 710 F.2d at 633. Section 202(a) of that Act (Pub.L. No. 88-452, 78 Stat. 508) defined “community action program” as a program that, among other things, “mobilizes and utilizes resources, public or private, of any urban or rural, or combined urban and rural geographical area ... in an attack on poverty” and “is conducted, administered, or coordinated by a public or private nonprofit agency.” 78 Stat. at 516. Although Congress initially left open the issue of governance of such programs, in 1967 it amended the Economic Opportunity Act of 1964 to require private nonprofit agencies acting as community action agencies — that is, administering community action programs — to have a tripartite “governing board,” consisting of not more than 51 members, of members taken from three classes: local political officials; representatives of the poor in the area served; and officials of business, labor, religious, and other major community-interest groups. Pub.L. No. 90-222, § 211(b), 81 Stat. 672, 693. Specifically, Congress required that “one-third of the members of the board [be] public officials, including the chief elected official or officials, or their representatives, unless the number of such officials reasonably available or willing to serve [was] less than one-third of the membership of the board.” Id. (emphasis added).

In 1972, Congress amended the provisions of the Economic Opportunity Act pertaining to governance of community action agencies so as to require that one-third of the members of the tripartite board be elected public officials and to allow appointed public officials to fulfill the one-third requirement if an insufficient number of elected officials was available and willing to serve; that amendment dropped the federal requirement that “chief elected officials” either serve or be represented. Pub.L. No. 92-424, § 7, 86 Stat. 688, 690. Later, many provisions of the Economic Opportunity Act were repealed by the Community Services Block Grant (“CSBG”) Act of 1981, Pub.L. No. 97-85, 95 Stat. 357, which shifted the general responsibility for running a number of antipoverty programs from the federal government to the states in the manner explained by the United States District Court for the Middle District of North Carolina in Guilford County Community Action Program, Inc. v. Wilson, 348 F.Supp.2d 548, 552 (M.D.N.C.2004):

“Subsequently [ie., after enactment of the CSBG Act], funds to reduce poverty were allocated to the States through block grants. The States would then channel the funding to eligible entities, generally non-profit community action agencies, that specialized in poverty reduction. [42 U.S.C. § 9901.] In turn, those agencies provided funding to individuals and to programs designated to reduce poverty.”

Although the CSBG Act, as initially enacted, did not disturb previous Congressional enactments pertaining to the governance of community action agencies, language was added to the CSBG Act in 1994 providing for selection of the board “by the community action agency.” Pub.L. No. 103-252, § 202(c)(5), 108 Stat. 623, 652. Further, the CSBG Act was generally revised in 1998 so as to provide, as it does at the time of this opinion, (a) that the members of the board of a private, nonprofit entity administering community-services block grants “shall be selected by the entity,” but (b) that that board shall be composed so as to assure that one-third of its members are either elected public officials holding office on the date of selection or their representatives (or are appointive public officials or their representatives if there is an insufficient number of available and willing elected public officials). Pub.L. No. 105-285, § 201(a)(2) (now codified at 42 U.S.C. § 9910(a)(2)). For purposes of this opinion, we will hereinafter refer to 42 U.S.C. § 9910(a)(2) as “the federal statute” for clarity.

In 1982, in response to Congress’s enactment of the CSBG Act, the Alabama Legislature enacted Act No. 82^94, Ala. Acts 1982, now codified at Ala.Code 1975, § 11-96-1 et seq., which provided that 95% of all moneys received from the federal government through the CSBG Act “shall be appropriated to community action agencies.” AIa.Code 1975, § 11-96-1. Act No. 82-494 further contained a definition of “community action agency” that included “private nonprofit agenc[ies] ... designated as ... ‘eligible entities]’ ” under the CSBG Act. Ala.Code 1975, § ll-96-3(a). Finally, and most pertinent for the purposes of this case, the Alabama Legislature provided as follows:

“Each community action agency shall administer its programs through a governing board consisting of 15 to 51 members.
“(1) One-third of the members of the board shall be elected or appointed public officials, currently holding office or their representatives. These members shall be designated or approved by the chief elected local government official or officials of the jurisdiction which they represent.
“(2) At least one-third of the members shall be persons chosen in accordance with democratic selection procedures adequate to assure that they are representative of the poor in the area served by the agency.
“(3) The other members shall be officials or members of business, industry, labor, religious, welfare, education, housing, or other major groups and interests in the community. Each member of the board selected to represent a specific geographic area within an appointed community must reside in the area represented.
“Procedures for selection of board members shall be submitted to county commissions within the community action agency service area for their review. This procedure may be set out in the bylaws governing the community action agency.”

Ala.Code 1975, § 11 — 96—3(b) (emphasis added). For purposes of this opinion, we will hereinafter refer to § 11 — 96—8(b) as “the state statute” for clarity.

In March 2006, ADECA’s director notified the chairman of CSP’s board that ADECA had received “several complaints concerning the provision of services by [CSP] to Hale County,” including complaints of “inaccessibility of services” and “lack of representation on the Board.” The director of ADECA noted that CSP’s sole office in Hale County at that time was not in Greensboro but in Sawyerville, a location approximately 15 to 20 miles away from Greensboro that, ADECA’s director contended, was “inaccessible for many people because of transportation issues.” ADECA’s director further noted that, at the time, CSP’s tripartite board consisted of a total 15 members and that its 5 public officials consisted of 8 from Tuscaloosa County, 1 from Greene County, and 1 from Lamar County. ADECA’s director suggested that CSP should increase its board membership to 18 people “in order for each County to have a public sector member approved by the local jurisdiction each represents.” In pertinent part, the letter directed that CSP “establish and have operational an office in Greensboro” within 60 days and that CSP’s board “be revised” within 6 months “so as to be in compliance with,” among other things, “state and federal statutes.”

In May 2006, the director of ADECA indicated that because CSP had not responded to ADECA concerning the March 2006 letter, ADECA would initiate a process to select an alternate agency to administer LIHEAP funds in Hale County “in order to ensure that the low-income households in Hale County receive LI-HEAP ... services.” After ADECA received a letter from the chairman of CSP’s board that indicated that a response from CSP had been sent to ADECA but had been overlooked, ADECA’s acting director attended an August 2006 meeting of that board and, in a follow-up letter, again reiterated the importance that CSP open an office in Greensboro and suggested that if Hale County’s probate judge (who serves as the chair of the Hale County Commission ex officio, see Ala.Code 1975, § 11-3-1(c)), who was in attendance, were selected to CSP’s board, that “would be a good start to having all six of [CSP’s] counties represented.” CSP apparently failed to act in accordance with that letter, and in November 2006 ADECA’s assistant director notified CSP that if the failure of CSP’s board to have a Hale County member and of CSP to have a Greensboro office were not remedied in 15 days, LI-HEAP funds would be transferred to another Hale County entity. In response, CSP’s executive director submitted a letter later that month in which she requested that ADECA hold an administrative hearing pursuant to its June 13, 2006, guidance letter regarding grievances.

The hearing requested by CSP was originally scheduled for February 2007, but was it continued at CSP’s request. Before that hearing was held, CSP’s executive director notified ADECA’s director that CSP took the position (a) that Hale County actually was represented on its board because one of its “representative of the poor” members was a Hale County resident; (b) that there was no binding requirement that the chief elected official of Hale County be represented on the board of CSP; and (c) that CSP had conducted “outreach” efforts in Greensboro while maintaining its office in Sawyerville. In November 2007, ADECA’s general counsel notified CSP’s attorney that ADECA intended to designate CSP as a “high-risk” agency unless CSP provided evidence that it had opened an office in Greensboro and that it had placed the chair of the Hale County Commission on its board. In response, CSP reiterated its request for an administrative hearing. In subsequent correspondence, CSP’s attorney advanced the contention that the state statute, to the extent that it applied to the composition of a community action agency’s board, was preempted by the provisions of the federal statute mandating that the pertinent entity select its board, and advised that a state senator whose district included part of Hale County had been appointed as one of CSP’s public-official directors.

ADECA appointed a hearing officer to hear the matter, and a hearing was held on June 23, 2008, concerning the preliminary determination by ADECA to terminate CSP’s LIHEAP funding as to Hale County. During and after the hearing, CSP took the position (a) that the state statute was preempted by the federal statute so as to obviate any need to place the chairman of the Hale County Commission or his designee on CSP’s board, (b) that CSP had complied with ADECA’s directives to establish an office in Greensboro, and (c) that the “high-risk” designation was without a valid basis and should be removed.

On September 80, 2008, the hearing officer issued a document entitled “Administrative Factual Findings and Conclusions of Law.” In that document, the hearing officer identified two pertinent issues to be resolved: “CSP[’]s non-compliance with [the state statute] as that statute applies to CSP’s selection [of] its board members and (2) CSP[’]s accessibility within Hale County from an office location in Greensboro, Alabama.” After analyzing the federal statute, the state statute, and regulatory guidance from the United States Department of Health and Human Services regarding tripartite boards, the hearing officer concluded that CSP had “continuously been in non-compliance with” the state statute, which the hearing officer determined not to be preempted. As to the issue of a Greensboro office, the hearing officer noted that CSP had adduced evidence “that it ha[d] leased space in a Greensboro church ... under a written lease[ ] and that it conducted] business at [that] location on Tuesday and Thursday of each week from 9:00 [a.m.] until 2:00 [p.m.],” albeit with a telephone-directory listing that was in- the sole name of the lessor church. However, the hearing officer did not issue a definitive decision as to the sufficiency of CSP’s efforts to obtain a Greensboro office in response to ADE-CA’s directives, instead opining that “[w]hether [CSP’s] response is adequate in light of the needs of the Hale County citizens seeking access to these services is not determinable from the record presented by the parties, and is an administrative oversight decision that must be made by ADECA after further review of the relevant facts and circumstances” (emphasis added). No ruling was issued on whether ADECA had acted outside its discretion in designating CSP as a “high-risk” agency.

Notwithstanding those omissions, CSP filed a notice of appeal with ADECA’s director and filed an action seeking judicial review in the circuit court, asserting a right to review under Ala.Code 1975, § 41-22-20, a portion of the Alabama Administrative Procedure Act (“AAPA”). In its complaint, CSP challenged the hearing officer’s determination regarding its federal preemption argument and complained that the hearing officer had “failed to address whether or not it was appropriate for ADECA to keep CSP on ‘high-risk,’ and failed to adequately address whether or not CSP’s presence in Hale County was sufficient.” CSP requested, among other things, that the circuit court assume jurisdiction and grant relief to CSP, including directing that the “high-risk” designation be removed and ordering that CSP’s administration of the LIHEAP program be restored. Perhaps in recognition of the questionable finality of the decision as to which it had sought review, CSP’s subsequent memorandum of issues presented cited Ala.Code 1975, § 41-22-20®, for the proposition that the “failure of an agency to submit a final decision in writing does not prevent an aggrieved party from seeking judicial review.” On April 2, 2009, the circuit court entered a judgment in which that court purported to hold that the state statute was preempted by the federal statute, that ADECA had no authority to discontinue LIHEAP funding as to Hale County, and that ADECA had acted outside its discretion in deeming CSP to be “high risk.” From that judgment, ADE-CA appealed to this court.

The substantive issues presented by the parties in their excellent appellate briefs are by no means unimportant or insubstantial, as the procedural history we have set forth might indicate. However, we regret that we are not in a position to address those issues. Rather, our review of the record convinces us that the appeal is due to be dismissed, ex mero motu, because the circuit court never acquired subject-matter jurisdiction. See Singleton v. Graham, 716 So.2d 224, 225-26 (Ala.Civ. App.1998) (noting that a circuit court’s lack of subject-matter jurisdiction follows an appeal to this court and warrants dismissal upon discovery of the jurisdictional defect in the record on appeal); see also Eitzen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998) (dismissing appeal from circuit court’s judgment affirming final decision of administrative agency because record revealed that the circuit court’s jurisdiction to review the decision had not properly attached).

Section 41-22-20(a), Ala.Code 1975, a portion of the AAPA, provides that a person who has exhausted all administrative remedies available within a state agency “and who is aggrieved by a final decision in a contested case” is entitled to judicial review under the AAPA (emphasis added). “A ‘final decision’ is one that garners the support of ‘a majority of the officials who are to render the final order.’ ” Ex parte Worley, 46 So.3d 916, 922 (Ala.2009) (quoting § 41-22-15, Ala.Code 1975, a portion of the AAPA). Here, although the AAPA provides for the rendition of a “final order in a proceeding” within 30 days “[ajfter a recommended order, or findings and conclusions are submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer,” Ala.Code 1975, § 41-22-16(a), the record in this case contains no indication that the director of ADECA or any authorized subordinate official at ADECA acted in any way upon the hearing officer’s “administrative Factual Findings and Conclusions of Law.” That omission is especially notable in light of that document’s silence regarding whether CSP’s “high-risk” classification was proper and that document’s express notation that whether CSP should be deemed in compliance with ADECA’s directive to open an office in Greensboro was “not determinable from the record presented by the parties” and was “an administrative oversight decision that must be made by ADE-CA after further review of the relevant facts and circumstances.” Thus, the hearing officer’s document containing his findings of fact and conclusions of law was not a final order because that document plainly “leaves the exact nature or extent of [CSP’s] liability ‘for a later determination [by ADECA] based on uncertain conditions,’ ” rather than “conclusively adjudicating] all claims and leaving] nothing further to be done.” IPSCO Steel, Inc. v. Alabama Dep’t of Envtl. Mgmt., 850 So.2d 344, 347-48 (Aa.Civ.App.2002) (quoting Ford Motor Co. v. Tunnell, 641 So.2d 1238, 1240 (Aa.1994)).

Thus, attempted appeals from mere preliminary findings will generally not support judicial-review proceedings under the AAPA. See Gibbons v. State Ethics Comm’n, 827 So.2d 801, 803-04 (Aa.Civ.App.2001). The sole exception is provided for in the second sentence of § 41-22-20(a): a preliminary agency ruling is immediately reviewable “if review of the final agency decision would not provide an adequate remedy.” There is no indication in this record or in the parties’ submissions that judicial review of a final decision of ADECA would not afford complete relief. Similarly, we note, but reject, CSP’s attempted invocation of § 41-22-20(f) as a basis for the circuit court’s jurisdiction: that statute simply states that agency delay in reaching a final decision “shall be justification for [an aggrieved party] to seek a court order compelling action by the agency ” (emphasis added)— a reference to the power of a circuit court to order an agency to issue a final decision rather than any power on the part of that court to hypothecate a final decision on the agency’s behalf.

We conclude that the circuit court was without jurisdiction to enter any judgment on the merits of the petition for judicial review filed by CSP in that court. We therefore dismiss ADECA’s appeal to this court from the circuit court’s judgment and instruct the circuit court to dismiss CSP’s judicial-review action so that a final decision may be rendered by ADECA. In doing so, we expressly disclaim any indication of this court’s views regarding the relative substantive merits of the positions assumed by ADECA and CSP during their dispute.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

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

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

      . According to a subsequent letter from ADE-CA’s general counsel, the "high-risk” designation "requires that [a grant recipient] submit documentation of expenditures and is then reimbursed rather than receiving advance payments.”

      . We note that ADECA will, in reaching its final decision, have the discretion to consider, among other issues, whether any actions taken by CSP during the pendency of the judicial-review proceedings towards establishing a Greensboro office have rendered that issue moot. Cf. Ala.Code 1975, § 41 — 22—20(i) (regarding the power of agencies to modify their findings and decisions by reason of additional evidence).


author: BRYAN, Judge.

text:
    Bonnie Fay MALONE v. Jackie Bailey NOBLITT.
    2090362.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Rehearing Denied Nov. 12, 2010.
    Certiorari Denied Jan. 7, 2011 Alabama Supreme Court 1100244.

      Marcus Helstowski and Nickolas R. Heatherly, Huntsville, for appellant.
    Benjamin Rice of Wilmer & Lee,. P.A., Huntsville, for appellee.
   BRYAN, Judge.

Bonnie Fay Malone, the plaintiff below, appeals from a summary judgment in favor of the defendant below, Jackie Bailey Noblitt. We affirm.

Facts

On January 23, 2008, at approximately 4:45 a.m., Noblitt was driving his automobile west on U.S. Highway 72 (“Highway 72”), a four-lane highway with two westbound lanes and two eastbound lanes separated by a median, when his automobile crossed the median into the eastbound lanes and struck an automobile occupied by Malone. Mvin Ray Poe, a witness who was driving west on Highway 72 approximately one-eighth of a mile behind Noblitt, testified in his deposition that he first observed Noblitt’s automobile well off the shoulder of the westbound lanes near a fence and that

“[Suddenly [Noblitt’s automobile] veered across both westbound lanes into the median and was jumping around in the median. Then [Noblitt] came back across the westbound lanes and he dropped down to a low place. He went out of sight.
“Then I saw him going up the hill on the other side. He suddenly veered back across both lanes, across the median, across the eastbound lanes into the shoulder, back out into the eastbound lanes and proceeded west in the eastbound lanes. By that time I had gotten up a little closer. I was still in the westbound lane. He was in the eastbound lane.
“I didn’t actually see. I knew there was some involvement with a vehicle, I think he sideswiped it. Then I saw vehicles leaving the light at County Line Road and they hit head-on. I think they were both in the inside lane.”

Poe further testified that he stopped, telephoned emergency 911 to report the accident, and went to check on the people involved in the collision. Poe testified that when he first got to the scene of the collision, he stopped to check on a woman who was complaining of pain, while another man went to check on Noblitt. The other man told Poe that he could not communicate with Noblitt, who “was just sitting there” in his automobile. After an ambulance arrived, Poe went over to Nob-litt’s automobile and Noblitt “was still sitting there and wasn’t saying anything.” Poe then left Noblitt’s automobile and rejoined the man who had first checked on Noblitt. Thereafter, a deputy arrived, and Poe and the deputy checked on Noblitt. Noblitt “still wasn’t saying anything.” Poe testified that, based on the erratic way that Noblitt had been driving immediately before the collision, he assumed that Nob-litt was intoxicated; however, Poe testified that “[njeither the deputy [n]or [Poe] could smell alcohol on him or the vehicle.” Poe further testified:

“The deputy had a flashlight. We both looked in the vehicle. We looked in the back. It looked like egg cartons or something back there as I recall. There were no bottles, no cans or anything in the floorboard that we saw at that time. His window was either down or the door was open, I can’t recall for sure, but we couldn’t smell any odors from the vehicle.”

Noblitt testified in his deposition that he had no memory of the collision. He testified that, the night before the accident, he had visited his wife, who was a patient in a hospital, and then had gone to bed at approximately 8:30 p.m. On the morning of the accident, he got up at 4:00 a.m.; took a shower; shaved; took his prescription medicine, which consisted of a prescription medication for high blood pressure and a prescription medication for high cholesterol; and left his house at 4:30 a.m. to go to his business, Monrovia Market and Deli. On the way, he called his stepson on his cellular telephone, had a conversation with him, and ended the call when he was passing Madison Square Mall on Highway 72 several miles before he reached Jeff Road, the road where he turns off of Highway 72 to go to his business. Noblitt testified that he does not remember anything from the time he ended his call with his stepson until he woke up in the hospital after the collision. The collision occurred approximately three miles after Noblitt had passed Jeff Road; Noblitt testified that he did not know why he passed Jeff Road instead of turning onto it.

Noblitt testified that he had not drunk any alcohol since 1971 and that he had never had an adverse reaction to his prescription medication.

Dr. Amrit Arora, a board-certified neurologist who examined Noblitt in the intensive-care unit of Huntsville Hospital on the day of the collision and subsequently treated Noblitt, testified in his deposition as follows:

“Q. All right. What history or understanding did you have regarding the reason for Mr. Noblitt being in the hospital and for you being requested to consult with him?
“A. He was — he had been in a motor vehicle accident with an unexplained period where he was driving for a few miles, and due to the unexplained period in absence of time, they called me in to evaluate for any potential neurologic cause.
“Q. Was it your understanding that Mr. Noblitt had gone for some period of time without any recall or recollection of the events surrounding the accident?
“A. Yes.
“Q. And that this had occurred for some length of time prior to the time of the accident?
“A. That’s correct
“Q. ... Did you conduct an examination of Mr. Noblitt?
“A. I did.
“Q. All right. As a result — well, first of all, with regard to the history that you received, did you have any indication whatsoever that Mr. Noblitt was intoxicated at the time of this accident?
“A. No.
“Q. All right. Did you have any indication that he was under the influence of any drugs at the time of this accident that would explain his condition?
“A. No.
“Q. All right. As a result of your examination, did you form a diagnosis or opinion as to what may have caused the episode that he described to you?
“A. We did.
“Q. Okay. And what was that opinion?
“A. The most likely diagnosis was complex partial seizure.
“Q. Would you please explain to the ladies and gentlemen of the jury what a complex partial seizure is?
“A. A seizure is an electrical short circuit in the brain. A partial seizure is one that involves part of the brain that can sometimes cause loss of time and awareness.
“Q.. All right. Assuming that your diagnosis or opinion was, in fact, what occurred, would Mr. Noblitt have had any advanced warning that he might be about to suffer such a seizure?
“A. No, he would not.
“Q. Assuming that Mr. Noblitt lapsed into some level of unconsciousness at that time, could he have done that and there have been no warning of any symptoms, and could he have done that •without knowledge that that condition was about to occur?
“A. Yes.
“Q. Okay. What type of treatment did you render to Mr. Noblitt at that time?
“A. We started him on an anti-seizure medication called Keppra.
“Q. Have you continued to see Mr. Noblitt since that date?
“A. Yes, I have.
“Q. Are you still continuing to treat him for a suspected seizure condition?
“A. Yes, I am.
“Q. And is he still on medication for that purpose?
“A. He is.
“Q. Had you ever seen Mr. Noblitt pri- or to January the 23rd of 2008?
“A. No, I have not — no, I did not.
“Q. Do you have any history whatsoever or any indication whatsoever that Mr. Noblitt had ever suffered a condition or event of this type prior to January the 23rd of 2008?
“A. No."-

Procedural History

On February 28, 2008, Malone sued Noblitt, stating claims of negligence and wantonness. Answering, Noblitt denied that he was guilty of negligence or wantonness and, as an affirmative defense, asserted that he was not negligent or wanton because, he said, he had suddenly lost consciousness before the collision, he had not done anything to cause his loss of consciousness, and he could not have foreseen that he would lose consciousness. See Walker v. Cardwell, 348 So.2d 1049 (Ala.1977) (recognizing that an involuntary and unforeseeable loss of consciousness constituted an affirmative defense to negligence and wantonness claims based on an automobile accident). On September 11, 2009, Noblitt moved for a summary judgment based on that affirmative defense. He supported his summary-judgment motion with his deposition, Poe’s deposition, and Dr. Arora’s deposition.

Also on September 11, the trial court entered an order directing Malone to respond to Noblitt’s summary-judgment motion within 21 days. Malone neither moved to strike any of the evidence Nob-litt had submitted in support of his summary-judgment motion, nor submitted any evidence in opposition to Noblitt’s summary-judgment motion, nor responded in any other way to Noblitt’s summary-judgment motion. On October 6, 2009, the trial court entered an order granting Nob-litt’s summary-judgment motion.

On October 16, 2009, Malone, having employed new counsel, moved the trial court to vacate the summary judgment in favor of Noblitt on the ground that her former counsel’s failure to file anything in response to Noblitt’s summary-judgment motion constituted an extraordinary circumstance that justified the vacating of the order granting Noblitt’s summary-judgment motion. In support of her motion, Malone submitted an affidavit in which she attested that she had kept in close contact with her prior counsel concerning the status of her action, that her prior counsel had informed her that he would be responding to Noblitt’s summary-judgment motion, and that she had not learned that her former counsel had not responded to Noblitt’s summary-judgment motion until after the trial court had entered its order granting Noblitt’s summary-judgment motion.

Noblitt replied to Malone’s motion to vacate the summary judgment on October 28, 2009. Noblitt asserted that Malone’s former counsel had not responded to Nob-litt’s summary-judgment motion because he recognized that the summary-judgment motion was due to be granted and that, therefore, his failure to respond did not constitute an extraordinary circumstance that justified vacating the summary judgment. Noblitt also asserted that the trial court should deny Malone’s motion to vacate the summary judgment because, he said, Malone had not submitted any evidence with that motion establishing the existence of a genuine issue of material fact.

On November 20, 2009, the trial court held a hearing with respect to Malone’s motion to vacate the summary judgment. Following the hearing, Malone moved the trial court to supplement the record to include documents that Malone’s counsel had referred to during the hearing regarding Malone’s motion to vacate the summary judgment. The documents included Noblitt’s answers to Malone’s interrogatories, which included the following interrogatory and answer:

“22. Had you taken any prescriptive or non-prescriptive drugs within twenty-four (24) hours of the subject collision? If so, please identify the drug, the date and time taken and the amount taken. “ANSWER: Lipitor and Accupril. I do not know if I took an Ambien or not.”

On November 30, 2009, the trial court entered an order denying Malone’s motion on the ground that Malone had neither directed the trial court to any evidence that was in the record before the entry of the summary judgment that established the existence of a genuine issue of material fact nor submitted any new evidence establishing the existence of a genuine issue of material fact.

Malone appealed to the supreme court on December 21, 2009, and the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Malone first argues that the trial court erred in granting Noblitt’s summary-judgment motion because, she says, the evidence submitted by Noblitt did not negate the existence of genuine issues of material fact regarding whether Noblitt was under the influence of alcohol or drugs at the time of the accident because, Malone says, Noblitt did not submit any results of laboratory tests at the hospital indicating that he did not have alcohol in his blood when the accident occurred; Noblitt stated in his responses to interrogatories that he did not know whether he had taken Ambien, a medication intended to induce sleep, within 24 hours of the accident; and Dr. Arora’s opinion that a complex partial seizure was “the most likely diagnosis” of Noblitt’s condition when the accident occurred was speculative.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-58 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035,1038 (Ala.2004).

“A trial court decides a motion for summary judgment upon a consideration of whatever materials are submitted in support of or in opposition to the motion. The trial court cannot consider any facts not of judicial notice except those facts evidenced by materials contained in the trial court record upon submission of the motion for summary judgment. Likewise, the trial court cannot be reversed on any ground or argument not presented for or against the motion.
“An appellate court can consider a fact to support or to undermine a summary judgment only to the extent that the record on appeal contains materials from the record before the trial court evidencing that fact at the time of submission of the motion for summary judgment. Likewise, the appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.”

Ex parte Ryals, 773 So.2d 1011, 1013 (Ala. 2000) (citations and original emphasis omitted; emphasis added).

We cannot consider any of Malone’s arguments challenging the summary judgment because they were not presented to the trial court before or at the time of submission of the summary-judgment motion. See Ex parte Ryals, 773 So.2d at 1013 (“[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” (citation and original emphasis omitted; emphasis added)).

Moreover, even if we could consider them, they have no merit. Noblitt’s testimony that he had no recollection of anything between the time he terminated his call with his stepson several miles before the accident occurred and the time he woke up in the hospital; his testimony denying that he had consumed alcohol since 1971; his testimony that the only drugs he had taken the day of the accident were prescription medications for high blood pressure and high cholesterol and that he had never had any adverse reactions to those drugs; Poe’s testimony that, after the accident, he did not detect any indication that Noblitt had consumed alcohol; Dr. Arora’s testimony that, after the accident, he did not detect any indication that Noblitt was under the influence of alcohol or drugs; and Noblitt’s testimony that he had never suffered a similar loss of consciousness or awareness before he suffered such a loss immediately before the accident, and the absence of any evidence indicating that Noblitt suffered a head injury in the accident that would have caused amnesia, constituted substantial evidence tending to prove that Noblitt suffered an involuntary and unforeseeable loss of consciousness or awareness immediately before the accident, see West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (“[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.”), which shifted the burden to Malone to produce substantial evidence establishing the existence of a genuine issue of material fact with respect to whether Noblitt suffered an involuntary and unforeseeable loss of consciousness or awareness. See Dow v. Alabama Democratic Party, 897 So.2d at 1038 (“Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact.”). Thus, Noblitt made a prima facie showing of his affirmative defense without submitting the results of laboratory tests indicating that he did not have alcohol in his blood and without relying on Dr. Aro-ra’s opinion that a complex partial seizure was the most likely cause of his loss of consciousness or awareness. The only evidence Malone submitted that she assei’ts met her burden of production is Noblitt’s interrogatory answer to the effect that he did not know whether he had taken an Ambien within 24 hours of the accident, which Malone submitted after the summary-judgment motion had already been granted. Even if that evidence had been timely submitted before or at the time the trial court took the summary-judgment motion under submission, it would not have established a genuine issue of material fact with respect to whether Noblitt was under the influence of drugs when the accident occurred because it did not tend to prove that it was more probable that Noblitt took an Ambien than it was that he did not take an Ambien within 24 hours of the accident and, therefore, it did not constitute substantial evidence indicating that Noblitt had taken an Ambien within 24 hours of the accident. See West v. Founders Life Assurance Co. of Florida, 547 So.2d at 871 (“[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.”).

Malone also argues that the trial court erred in denying her motion to vacate the summary judgment because, she says, her first counsel failed to attend Dr. Arora’s deposition and failed to respond to the summary-judgment motion, which constituted extraordinary circumstances justifying the vacating of the summary judgment. First, we cannot consider Malone’s argument insofar as it is based on her former counsel’s alleged failure to attend Dr. Arora’s deposition because the record does not establish that she presented that argument to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). We find no merit in Malone’s argument insofar as it is based on her former counsel’s failure to respond to the summary-judgment motion because Malone made no showing that she could have established the existence of a genuine issue of material fact if her former attorney had responded to the summary-judgment motion.

For the reasons discussed above, we affirm the judgment of the trial court.

AFFIRMED.

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