author: BRYAN, Judge.

text:
    Ex parte Josh HARRISON and Josh Harrison d/b/a Western Motor Group. (In re M. Smallwood v. Josh Harrison and Josh Harrison d/b/a Western Motor Group).
    2070850.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2008.

      John Martin Galese and Cassandra J. Harris of Galese & Ingram, P.C., Birmingham, for petitioners.
    Jerry 0. Lorant of Lorant & Associates, P.C., Birmingham, for respondent.
   BRYAN, Judge.

Josh Harrison and Josh Harrison d/b/a Western Motor Group (“the defendants”) petition this court for a writ of mandamus to compel the trial court to grant the defendants’ motion to dismiss the action filed by the plaintiff, M. Smallwood, on the ground that the trial court lacks in person-am jurisdiction over the defendants because, the defendants say, they have not had the minimum contacts with the State of Alabama necessary to subject them to in personam jurisdiction in Alabama. We grant the petition.

On November 27, 2007, Smallwood sued the defendants, stating claims of fraud and violation of the Alabama Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975, based on the following factual allegations:

“1. The Plaintiff, M. Smallwood, is a resident and citizen of the State of Alabama and is over the age of twenty-one (21) years.
“2. The Defendant, Josh Harrison, is upon information and belief, an individual over the age of twenty-one (21) years and a partner in a partnership ... d/b/a Western Motor Group.
“8. Western Motor Group is upon information and belief, a suable entity located ... at 2925 11th Street, Rock Island, Illinois, 61201, and was, in all respects and at all times relevant herein, doing business in the State of Alabama.
“8. Defendants offered an automobile described as a ‘2003 Ford Crown Victoria P71 Police Squad’ vehicle for sale on Ebay Motors, an Internet Auction Site.
“9. Relying on Defendants’ representations that said vehicle was a police squad vehicle, Plaintiff purchased the vehicle for the sum of Four Thousand Two Hundred Twenty-Five dollars ($4,223.00) [sic],
“10. Said vehicle was never a ‘police squad’ vehicle or used by police, but was in fact, a vehicle used as a Taxi.”

The defendants moved the trial court to dismiss Smallwood’s action on the ground that the trial court lacked in personam jurisdiction over the defendants. In support of their motion, the defendants argued that Smallwood could not meet his burden of proving that the defendants had had the minimum contacts with Alabama necessary to subject them to in personam jurisdiction in Alabama because, they said, he could not prove that there had been “ ‘some act by which the defendants] [had] purposefully avail[ed themselves] of the privilege of conducting activities within [Alabama], thus invoking the privileges and protections of its laws,’ ” Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co., 889 So.2d 545, 551 (Ala.2004) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). They argued that they had not purposefully availed themselves of the privilege of conducting activities in Alabama by selling the Crown Victoria to Smallwood because that sale was a single, isolated sale; they did not direct their advertisement on the Internet at Alabama or Alabama residents; Smallwood initiated the sale by contacting the defendants; them only contacts with Alabama were by mail and telephone; and, although they had arranged for the shipment of the Crown Victoria to Smallwood at his request, Smallwood bore the shipping cost and the risk of loss while the Crown Victoria was in transit.

As evidentiary support for their motion, the defendants submitted the affidavit of Josh Harrison, in which he stated:

“At the time of the subject transaction I was acting on behalf of and as an agent of Western Motor Group.
“I am a bona fide resident citizen of the State of Illinois. I have never lived in the State of Alabama. I do not and never have owned property or assets in the State of Alabama. I do not and never have conducted business activities in the State of Alabama. I have never had any personal contacts with the State of Alabama unrelated to the present lawsuit.
“Western Motor Group is a sole proprietorship located in Illinois and having its principal and sole place of business in Rock Island, Illinois. Western Motor Group is not registered, qualified or licensed to do business in the State of Alabama. Western Motor Group is not required to, nor does it pay taxes in or to the State of Alabama. Western Motor Group does not own property or assets in the State of Alabama, does not maintain offices in the State of Alabama, does not have employees in the State of Alabama and does not have a telephone listing in the State of Alabama. Neither I nor Western Motor Group knowingly or intentionally markets, solicits or advertises products or services in the State of Alabama. I am unaware of any business dealings with any resident of the State of Alabama, prior to the transaction with M. Smallwood made the basis of this lawsuit, and neither I nor Western Motor Group ever knowingly or intentionally sold any goods or services to any entity in or from the State of Alabama.
“Western Motor Group advertised the subject 2003 Ford Crown victoria Police Interceptor (‘Crown Vic’) on Ebay Motors, which is a national/international internet website dedicated to assisting individuals and businesses in the buying and selling of automobiles. The business of Ebay Motors is to allow a business or individual to post the advertisement for an automobile on the website in order to receive offers and/or bids from individuals or other businesses who are interested in purchasing the vehicle. The impetus is on the individual who is interested in the automobile to then contact the individual or business that posted the advertisement on the website. Neither I nor Western Motor Group owns or maintains the Ebay Motors website.
“Prior to the transaction made the basis of this lawsuit, I am unaware of any prior business dealings that I or Western Motor Group had with M. Smallwood. I was contacted by M. Smallwood after he saw the advertisement that had been placed on Ebay Motors. After negotiating the purchase price for the Crown Vic, the purchase contract was mailed to M. Smallwood which M. Smallwood signed and returned to Illinois. M. Smallwood sent a check to Western Motor Group and requested Western Motor Group to arrange for transportation of the Crown Vic to Alabama. Based on M. Small-wood’s request, Western Motor Group arranged for the Crown Vic to be transported to Alabama. The purchase contract represented the total selling price as $3,624 and the transport/shipping cost as $600. The check M. Smallwood sent to Western Motor Group covered both the selling price and the transport/shipping cost. The sale of the Crown Vic to M. Smallwood was not completed until the money was received in Illinois. While Western Motor group arranged for transporting the Crown Vic to Alabama at M. Smallwood’s request, M. Smallwood bore the cost of said transportation and the risk of loss while the Crown Vic was being transported to Alabama.”

In opposition to the defendants’ motion, Smallwood argued that it was not necessary for the defendants to have a physical presence in Alabama in order to have sufficient contacts with Alabama to subject them to in personam jurisdiction in Alabama; all that was necessary, Smallwood asserted, was that the defendants have “ ‘aet[ed] in such a manner that [they] reasonably ought to anticipate the direct consequences of [their] actions to be felt by another person residing in [Alabama].’ ” Lowry v. Owens, 621 So.2d 1262, 1265 (Ala.1993) (quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986)). The record before us indicates that, before the trial court ruled on the defendants’ motion to dismiss, Smallwood did not submit any affidavits or other evidence.

On May 21, 2008, the trial court denied the defendants’ motion to dismiss, and, on June 11, 2008, the defendants petitioned this court to issue a writ of mandamus compelling the trial court to grant their motion to dismiss. We called for an answer to the petition from Smallwood and for briefs from both parties. On July 22, 2008, Smallwood moved the trial court to amend the record to include a document purporting to be a copy of an advertisement placed on the “Ebay Motors” Web site on July 18, 2008, by the defendants. However, the trial court entered an order denying Smallwood’s July 22 motion to amend the record; consequently, neither the July 18 advertisement nor any of Smallwood’s statements in his answer and brief regarding the July 18 advertisement are before us. See Etherton v. City of Homewood; 700 So.2d 1374, 1378 (Ala. 1997) (“[W]e are not permitted to consider matters ‘dehors the record.’ Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975). This rule may be restated as follows: ‘(1) Argument in brief reciting matters not disclosed by the record cannot be considered on appeal. (2) The record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record.’ Id.”).

Before us, the defendants argue, as they did in the trial court, that Small-wood failed to meet his burden of proving that they had sufficient contacts with Alabama to subject them to in personam jurisdiction in Alabama because, they say, he did not prove that there had been “ ‘some act by which the defendants] [had] purposefully avail[ed themselves] of the privilege of conducting activities within [Alabama], thus invoking the privileges and protections of its laws,’ ” Ex parte Georgia Earn Bureau Mut. Auto. Ins. Co., 889 So.2d at 551 (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174). Smallwood, on the other hand, argues that the sale of the Crown Victoria to Small-wood, by itself, establishes that the defendants purposefully availed themselves of the privilege of conducting activities in Alabama. The defendants counter by arguing that the single sale of the Crown Victoria to Smallwood does not establish that they purposely availed themselves of the privilege of conducting activities in Alabama because, they say, Smallwood initiated the sale; their only contacts with Alabama were by telephone and mail; and, although they arranged for the shipment of the Crown Victoria to Smallwood at his request, Smallwood bore the shipping costs and the risk of loss while the Crown Victoria was in transit.

“ ‘ “ ‘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).
“ ““ “In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Netiuork Productions, Inc., 902 F.2d 829 (11th Cir.1990), and hvhere 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 Madam 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 Mclnnis, 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).’ ”

Ex parte Duck Boo Int’l Co., 985 So.2d 900, 905-06 (Ala.2007) (quoting Ex parte Buflcin, 936 So.2d 1042, 1044-45 (Ala. 2006)).

“Jurisdiction is obtained over out-of-state defendants pursuant to the ‘long-arm ’ rule, Ala. R. Civ. P. 4.2(a)(2)(A)-(I). Recently, we explained:
“‘ “A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.” Sieber v. Campbell, 810 So.2d 641, 644 (Ala. 2001). What is required, however, is that the defendant have such contacts with Alabama that it “ ‘should reasonably anticipate being haled into court [here].’ ” Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala. 1986) (quoting Woridr-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“ ‘Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 728 So.2d 566, 569 (Ala.1998). “General jurisdiction applies where a defendant’s activities in the forum state are ‘substantial’ or ‘continuous and systematic,’ regardless of whether those activities gave rise to the lawsuit .... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.” Id.
“ ‘But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of “ ‘an action of the defendant [that was] purposefully directed toward the forum State.’ Elliott [ v. Van Kleef], 830 So.2d [726] at 731 [ (Ala.2002) ] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). “This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ’ ” Elliott, 830 So.2d at 731 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).’
“Ex parte Dill [, Dill, Carr, Stonbraker & Hutchings, P.C.], 866 So.2d [519] at 525 [ (Ala.2003) ].
“ ‘When specific jurisdiction is the basis for adjudication of claims against an out-of-state defendant, due process requires “a clear, firm nexus between the acts of the defendant and the consequences complained of in order to establish the necessary contacts.” ’ Ex parte Dill, 866 So.2d at 531-532 (quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986)).
“Specific jurisdiction ‘is authorized by Rule 4.2(a)(2)(I), the “catch-all provision” of Alabama’s long-arm rule. See Jerome Hoffman & Sandra Guin, Alabama Civil Procedure § 2.48 (1990).’ Ex parte Dill, 866 So.2d at 531. Rule 4.2(a)(2)(I) provides:
“ ‘A person has sufficient ’ contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“ ‘(I) otherwise [than the circumstances listed in A-H] having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.’
“ ‘Subsection (I) “extends the jurisdiction of this state’s courts to the permissible limits of due process.” Martin v. Robbins, 628 So.2d 614, 617 (Ala.1993).’ Ex parte Dill, 866 So.2d at 531. If the exercise of personal jurisdiction would offend the due-process requirements of Rule 4.2(a)(2)(I), it may not be exercised under Rule 4.2(a)(2)(A)-(E). Ex parte Dill, 866 So.2d at 525.
“Of particular relevance is whether the plaintiff initiated the sale or contact. See Madison Consulting Group v. South Carolina, 752 F.2d 1193 (7th Cir. 1985); CBP Res., Inc. v. Ingredient Res. Corp., 954 F.Supp. 1106 (M.D.N.C.1996); Regent Lighting Corp. v. American Lighting Concept, Inc., 25 F.Supp.2d 705 (M.D.N.C.1997) (‘the contacts to be considered for purposes of personal jurisdiction are those actually generated by Defendants, not those created by the unilateral acts of Plaintiff); Wells American Corp. v. Sunshine Electronics, 717 F.Supp. 1121, 1123 (D.S.C.1989); American Stair Corp. v. Renata Constr. Co., 625 F.Supp. 136 (N.D.Ill.1985).
“Thus, something more than an isolated contact initiated by an in-state plaintiff is required to satisfy the ‘purposeful-availment’ prong of the due-process analysis. ‘Something more’ might involve ‘prior negotiations and contemplated future consequences, along with ... the parties’ actual course of dealing.’ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 463,105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (emphasis added). ‘Something more’ might be found ‘where the defendant “deliberately” has engaged in significant activities within [Alabama] ... or has created “continuing obligations ” between himself and residents of [Alabama].’ 471 U.S. at 475-76, 105 S.Ct. 2174 (emphasis added).
“This Court has stated that ‘ “evidence of mere placement of advertisements in nationally distributed paper[s] or journals does not rise to the level of purposeful contact with a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser.” ’ Elliott v. Van Kleef 830 So.2d 726, 732 (Ala.2002) (quoting Federated Rural Elec. Ins. Co. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994)). In such a case, the advertiser ‘cannot be said to have purposefully directed his listing specifically at one state.’ Elliott, 830 So.2d at 732.
“ ‘Internet advertising over a web site falls under the same rubric as advertising in a national publication.’ Christopher E. Friel, Notes and Comments, Downloading a Defendant: Is Categorizing Internet Contacts a Departure from the Minimum Contacts Test? 4 Roger Williams U.L.Rev. 293, 308 (1998). This is especially true where the Web site is ‘passive,’ that is, where the site serves ‘as little more than an electronic billboard for the posting of information.’ Butler v. Beer Across America, 83 F.Supp.2d [1261] at 1268 [ (N.D.Ala.2000) ].”

Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 463-65 (Ala. 2003).

Applying the foregoing principles of law to the case now before us, we note that Harrison’s affidavit established that the defendants’ advertisement of the Crown Victoria on the “Ebay Motors” Web site did not constitute a purposeful contact with Alabama because, like an advertisement placed in a nationally delivered newspaper or journal, it was not directed at Alabama specifically and the advertisement was passive in nature. Moreover, Harrison’s affidavit established that the sale of the Crown Victoria to Smallwood was a single, isolated contact with a resident of Alabama that was initiated by the Alabama resident rather than the defendants. Harrison’s affidavit also established that the defendants’ contact with Alabama was only by telephone and mail. Finally, Harrison’s affidavit established that, although the defendants arranged for the shipment of the Crown Victoria to Alabama, they did so at Smallwood’s request, and Smallwood bore the shipping costs and the risk of loss while the Crown Victoria was in transit. Accordingly, based on the principles of law recited above, we conclude that Harrison’s affidavit made a prima facie showing that the defendants had not purposefully availed themselves of the privilege of conducting activities within Alabama and, therefore, that they have not had the minimum contacts necessary to subject them to in per-sonam jurisdiction in Alabama. See Ex parte Tronealli, supra.

The prima facie showing made by Harrison’s affidavit shifted to Smallwood the burden of proving by affidavits or other competent evidence that the defendants had purposefully availed themselves of the privilege of conducting activities within Alabama. See Ex parte Duck Boo, supra. However, Smallwood did not submit any affidavits or other evidence to rebut the prima facie showing made by the defendants. Consequently, we conclude that the trial court erred in denying the defendants’ motion to dismiss the action for lack of in personam jurisdiction. See Ex parte Duck Boo and Ex parte Tronealli. The defendants’ petition for a writ of mandamus is, therefore, granted. The trial court is ordered to vacate its order denying the defendants’ motion to dismiss and to enter an order dismissing the action against the defendants.

PETITION GRANTED; WRIT ISSUED.

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


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    AMERICAN HERITAGE LIFE INSURANCE COMPANY v. John BLACKMON and Tchernavia Blackmon.
    2070266.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2008.

      David W. McDowell of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellant.
    Christina D. Crow of Jinks, Crow & Dickson, PC, Union Springs, for appellees.
   PITTMAN, Judge.

American Heritage Life Insurance Company (“the insurer”) appeals from a judgment of the Bullock Circuit Court awarding John Blackmon and Tchernavia Blackmon the sum of $10,000 on the Blackmons’ breach-of-contract claim against the insurer arising out of the insurer’s refusal to pay an insurance claim submitted by the Blackmons with respect to the death of Mrs. Blackmon’s son, Jeffery Williams (“the decedent”). We reverse and remand with instructions.

The pertinent facts are as follows. In November 2002, representatives of the insurer went to Bullock Correctional Facility to solicit insurance-policy applications from workers there. Mrs. Blackmon, who had been an employee of the Department of Corrections for approximately 15 years and who had completed high school and could read and write, entered into a conversation with one of those representatives concerning the acquisition of a policy of insurance upon the life of Mr. Blackmon, during which a representative advised her that her own children “would be covered” under such a policy. Mrs. Blackmon then elected to complete an application for a policy of insurance that would afford coverage not only for Mr. Blackmon but also for his children and stepchildren.

In an effort to obtain the desired insurance coverage, Mrs. Blackmon, with the assistance of the insurer’s representative, completed a form labeled “Application for Life and Health Insurance” listing Mr. Blackmon as the “Proposed Insured” and herself as the owner and primary beneficiary of the policy. The first page of the application listed the product desired as a “Universal Life” policy with a death benefit of $54,487 and bore a marked check-box indicating “Simplified Issue”; the application further showed that a “CTR” life rider (indicating “children’s term rider”) was being sought with a death benefit of $10,000. The form also contained blanks for listing “Dependents Proposed For Coverage,” in which Mrs. Blackmon identified “Tashina G. Archie” and “Macorius Harris,” who were respectively disclosed as being 18 years old and 11 years old.

At the time that Mrs. Blackmon submitted her application, however, Mr. Black-mon and Mrs. Blackmon, taken together, were the parents of four additional children between the two of them. One of Mrs. Blackmon’s children, the decedent, was born to Mrs. Blackmon and Isom Coley in 1979 but lived with Mrs. Blackmon’s mother, Odessa Williams, in Atmore for the bulk of his life. The decedent was omitted from that section of the insurance application as a dependent proposed for coverage. When Mrs. Blackmon was asked about that omission at trial, she testified that, in the process of filling out her children’s names, she received a radio call directing her to report to another location at the facility. Mrs. Blackmon testified that she had then informed the insurer’s representative that she would have to leave and asked what needed to be done about listing other dependents, including the decedent (whom she apparently had identified as being “sick”); at that time, she said, she had been informed that her children would be covered because “the children didn’t have to be listed.” Despite the omission of the names of her and her husband’s four other children, including the decedent, from the application, Mrs. Blackmon admitted that she had, in fact, intended that all six children would be covered under the children’s term rider to the policy issued in response to the application.

The second page of the insurance application contained, among other things, a number of additional questions to be answered by the applicant. The left side of the form contained labels indicating the applicability of each particular numbered interrogatory item to the pertinent policy sought, e.g., “All Life,” “All Life & Health,” “All Accident Plans and Riders,” and “Simplified Issue Disability Income & Sickness Riders.” Question 5, which bore the label “Simplified Issue Life $100,000 Or Below” (i.e., the form of coverage sought by Mrs. Blackmon), contained the following pertinent question:

“Within the last 3 years, has any person to be insured: had a chronic disease (including but not limited to heart disorder, stroke, cancer, diabetes, etc.); been hospitalized; seen a physician (other than for colds, flu or normal pregnancy or a routine physical with no unfavorable results); or been counseled for or excessively used alcohol or any type of drugs?”

Mrs. Blackmon’s application bears a response of “No” to that question.

The application further directed the applicant to “list the required health history in Question 10” if any response to Questions 2 through 9 were in the affirmative. Question 10 requested the “Name” of the pertinent person to whom the positive response in Questions 2 through 9 applied, the “Nature of [the] Illness/Injury or Medical Attention/Reason Last Consulted,” the “Date and/or Duration” of the pertinent condition, and the “Name and Address of [the] Physician or Hospital/Clinic” that afforded treatment as to the condition. The response field for Question 10 was left blank.

The record reflects that in 1991 the decedent was diagnosed with cerebral palsy, a chronic disease. From that year, the decedent was a paraplegic and required significant assistive care, having ceased responding to communication attempts from family members and nurses. The decedent went blind in 1999, and from that time he required a breathing tube for his survival; also, according to the deposition testimony of Mrs. Blackmon’s mother, the decedent was under the care of a Mobile physician during the period from 1999 to 2002, and the decedent was admitted to a Mobile hospital for approximately 180 days between February 2000 and August 2002, within the three-year window as to which the application sought information as to “any person to be insured” under a simplified-issue life-insurance policy in the amount sought. It is also undisputed that Mrs. Blackmon knew of the decedent’s hospitalizations and medical conditions at the time she applied for the insurance policy.

The bottom portion of the application at issue contains spaces for the signatures of the proposed insured and the owner of the policy sought. Immediately above the signature lines appears the following provision:

“I have read or had read to me the completed application and understand that any misstatement or misrepresentation in the application may result in loss of coverage. I represent that statements and answers given on this application are true, complete, and correctly recorded. ... I also understand that no agent has authority to waive any answer or otherwise modify this application, or to bind this company in any way by making any promise or representation that is not set out in writing on this application.”

Mrs. Blackmon, after having been afforded the opportunity to review the application, signed the application for both herself and Mr. Blackmon, and in response to the application and in reliance upon the answers given, the insurer issued an insurance policy containing a children’s term rider affording coverage for “any ... stepchild ... of the insured” who “is ... named in the application and is less than 25 years of age” subject to a two-year period of con-testability for causes other than nonpayment of premium. The policy issued specifically provided that the parties’ contract consisted not only of the policy, amendments, endorsements, and riders, but also the application submitted.

In 2004, Mrs. Blackmon filed a claim for an award of death benefits under the policy with respect to the decedent, who had died in November 2003 at the age of 24 years. In August 2004, Mr. Blackmon was notified by letter that the claim would be denied. The denial letter noted that the decedent had not been listed on the application; moreover, it noted that, “had [the decedent’s] medical history been known, dependent coverage on [the decedent] would not have been issued” by the insurer.

In February 2005, the Blackmons sued the insurer, alleging claims based upon theories of breach of contract, bad-faith refusal to pay or investigate as to a valid insurance claim, fraud, and negligence or wantonness in hiring, training, and supervising employees; they sought damages in the amount of $74,999. The insurer answered the complaint, and in an amended answer asserted, as an affirmative defense, that “[t]he omissions in the application or incorrect information supplied makes the policy subject to rescission under ... § 27-14-7,” Ala.Code 1975. After an ore tenus proceeding, the trial court entered a judgment in favor of the Black-mons and awarded them $10,000 plus costs, opining that while “there is a general question on the application about the health of life applicants,” that question “does not indicate that it applies to children term riders,” whereas “[o]ther portions of the applications specifically refer to riders.” According to the trial court, it is “unclear whether the application even requests information about the health of the applicant’s children,” and that that “ambiguity” in the application was to be “resolved against” the insurer. The insurer appealed to this court; we have appellate jurisdiction based upon the amount in controversy (see Ala.Code 1975, § 12-3-10).

On appeal, the insurer reiterates its contention that it was entitled to reject the insurance claim presented as to the decedent’s death on the authority of Ala.Code 1975, § 27-14-7. In pertinent part, that section provides:

“(a) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefore, by, or in behalf of, the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:
“(1) Fraudulent;
“(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
“(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.”

(Emphasis added.) As our Supreme Court has noted:

“Under this Code section [§ 27-14-7], it is not necessary that the [applicant] have made the misrepresentation with an intent to deceive; even if innocently made, an incorrect statement that was material to the acceptance of the risk assumed by the insurer or that would have caused the insurer in good faith not to issue the policy provides a basis for the insurer to avoid the policy. To invoke § 27-14-7, an insurer need establish only that a misrepresentation in the application was a material contributing influence that induced the insurer to issue the policy. That the insurer could make its own investigation does not lessen its right to rely on the representations in the application.”

Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So.2d 759, 766-67 (Ala.2004) (citations omitted).

During this litigation, the insurer has not relied upon the absence of the decedent’s name from the list of dependents proposed for coverage in the application, and the insurer’s director of underwriting admitted that that omission was not “relevant,” i.e., not a material issue. Rather, the insurer has contended that, and adduced uncontradicted evidence indicating that, the failure of the application to disclose the decedent’s medical history was material to the insurer’s acceptance of the risk of insuring all Mr. Blackmon’s six children and stepchildren. Thus, if it is assumed that the application form called for a positive response from Mrs. Black-mon as to either of the inquiries in Question 5, the fact that no positive response was given satisfies the materiality-of-the-risk criterion of § 27-14-7(a)(2), and we are left with considering the validity of that assumption, i.e., whether there is a “[misrepresentation! ],” an “omission! ],” a “concealment of facts,” or an “incorrect statement” on the part of Mrs. Blackmon. As to this issue, the trial court and the Blackmons’ brief offer different rationales in support of the judgment, which we will consider seriatim.

The trial court based its judgment in favor of the Blackmons on the purported existence of a patent ambiguity in the application form itself that, the trial court said, was due to be construed in favor of the Blackmons; the trial court therefore determined that there could have been no misrepresentation, omission, concealment, or incorrect statement upon which the insurer could properly rely in defense of the Blackmons’ breach-of-contract claim. Our examination of the application form submitted by Mrs. Blackmon compels us to reach a contrary conclusion.

The first page of the application clearly identifies that the product sought is a life-insurance policy to be issued in a face amount of $54,487 on a simplified-issue basis (with a children’s term rider). Question 5 on page 2 of the application bore the notation that it was applicable when the product requested was “Simplified Issue Life $100,000 Or Below,” and that question sought historical health information pertinent to “any person to be insured.” Mrs. Blackmon answered “No” to both pertinent queries. The presence of another question on the second page of the form applicable to “All Accident Plans And Riders” — which, it should be noted, bears no responses, indicating that the parties knew of the inapplicability of that question— does not bear upon the clarity of the request in Question 5 for health information as to any person to be covered under a simplified-issue life-insurance policy with a death benefit of less than $100,000. Given Mrs. Blackmon’s intent that the insurance for which she was applying would cover not only Mr. Blackmon as the proposed named insured, but also all of his six children and stepchildren, it cannot properly be said that Question 5, as printed on the application form, is patently ambiguous.

For their part, the Blackmons seek to defend the trial court’s judgment on the basis that the insurer’s representative who assisted Mrs. Blackmon in completing the application orally posed to her the questions on the second page of the application form in a manner that suggested that only Mr. Blackmon’s health history was material. In other words, the Blackmons assert the existence of a latent ambiguity in the insurer’s requests for information based upon Mrs. Blackmon’s trial testimony that the insurer’s representative “didn’t ask [her] anything about [her] children” and that, when she supposedly voluntarily informed the representative that the decedent “was sick,” she was told that “there was no need to list” the children in the application because they “would be covered.”

However, the Blackmons’ argument as to this issue fails to take into account that Mrs. Blackmon not only acknowledged in her application form that she was representing to the insurer that the statements and answers “given on [the] application [were] true, complete, and correctly recorded,” but also her express understanding that “any misstatement or misrepresentation in the application [could] result in loss of coverage” (emphasis added). In Pabon, the Supreme Court rejected a similar contention that the conduct of an insurance agent in incorrectly recording answers on an application form did not vitiate the incorrectness of information submitted to an insurer when the application form, similar to the form at issue in this case, provided that the applicant was declaring the facts in the application to be true and was requesting the pertinent insurer to rely upon those disclosures in issuing a policy of insurance. The Supreme Court reasoned:

“It is undisputed that Pabon knew of her husband’s pending bankruptcy proceeding when she applied for the Elite II homeowner’s policy; it is also undisputed that the insurance application indicates ‘no’ in response to the following question: ‘[H]as insured or family member been sued, filed bankruptcy, had repossession/judgment within the last 7 years?’ It is also undisputed that Pabon was given the opportunity to review the application with the printed answers before she signed it ....
“Absent misrepresentations, fraud, or other deceit by the agent, a person able to read and write is bound by an insurance application signed by him or her, whether or not he or she reads it. First Nat’l Life Ins. Co. of America v. Maxey, 25 Ala.App. 289, 145 So. 589 (1932). Because Pabon was given the opportunity to review the answers on the insurance application before she signed it, we reject the arguments that Nationwide’s agent created the inaccuracies on the application and that Nationwide waived its right to defend on the basis that the application contained innocent but material misrepresentations. We conclude that Pabon is bound by the answers on the insurance application.”

903 So.2d at 767. In this case, the Black-mons, like Pabon, are bound by the answers given on the pertinent application form and may not properly rely upon contradictory information given by, or given to, an insurer’s soliciting agent concerning the information sought by or provided on the application itself. Accord Alfa Life Ins. Corp. v. Lewis, 910 So.2d 757, 762 (Ala.2005) (“even if innocently made, an incorrect statement that is material to the risk assumed by the insurer or that would have caused the insurer in good faith not to issue the policy in the manner that it did provides a basis for the insurer to avoid the policy”).

Moreover, a fair reading of the application form itself belies the propriety of any intei’pretation that the insurer was concerned in the application only with the health of Mr. Blackmon. Not only did Questions 2 through 9 of that application differentiate between those relating to the proposed named insured (i.e., the reference in Question 8 to “the proposed insured”) and those relating to all covered persons (i.e., the use of the phrase “any person to be insured” in Question 2), Question 10 requested the names of persons whose medical history was required to be detailed. If “any person to be insured” was properly to be read “any proposed named insured,” it would have been unnecessary to again request names in Question 10.

Just as we are not convinced of the validity of the Blackmons’ ambiguity arguments, we cannot affirm the trial court’s judgment based upon any role that the insurer’s representative may have had in preparing portions of the application form. As Pabon makes clear, an applicant for insurance is bound by what is represented in the application when he or she has an opportunity to read the contents thereof. Even had the insurer’s representative, in contravention of the wording of the application form itself, requested that Mrs. Blackmon answer Question 5 based solely on Mr. Blackmon’s medical history, the application form expressly provided that no agent of the insurer would have authority to waive any answer or to otherwise modify the application or to bind the insurer by his or her representations in any manner not appearing on the face of the application itself.

We conclude that the trial court erred in failing to enter a judgment in favor of the insurer based upon the provisions of Ala. Code 1975, § 27-14-7(a). The judgment of the Bullock Circuit Court in favor of the Blackmons is, therefore, reversed, and the cause is remanded for the entry of a judgment in favor of the insurer.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM.

text:
    Calvin B. KRAWCZYK v. STATE DEPARTMENT OF PUBLIC SAFETY.
    2070116.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2008.
    Calvin B. Krawczyk, pro se.
    F. Tim McCollum, Alabama Department of Public Safety, for appellee.
   PER CURIAM.

The State Department of Public Safety (“the Department”) notified Calvin B. Krawczyk by letter that he was subject to the Community Notification Act (“the CNA”), § 15-20-20 et seq., Ala.Code 1975. Krawczyk sought administrative review of that decision. That review was subject to the provisions of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala.Code 1975, which governs contested cases involving actions of state agencies in enforcing statutes and agency rules. See § 41-22-3(3), Ala.Code 1975 (defining a “contested case,” in part, as “[a] proceeding ... in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing”); see also § 15-20-38, Ala.Code 1975 (requiring the Department to promulgate rules and hearing procedures for those individuals subject to the CNA).

On September 22, 2004, the administrative law judge assigned to the case entered an order finding that the CNA did not apply to Krawczyk. On October 4, 2004, the Department filed a motion asking the administrative law judge to “reconsider” his September 22, 2004, decision. Section 41-22-17 of the AAPA governs motions seeking a rehearing, or reconsideration, of an administrative law judge’s decision. See also Rule 81(b), Ala. R. Civ. P. (the Rules of Civil Procedure do not apply to administrative proceedings). For the purposes of this opinion, we refer to the Department’s October 4, 2004, motion filed pursuant to § 41-22-17(a) as a motion for a rehearing. Section 41-22-17(a) requires that a motion seeking a rehearing of an administrative law judge’s decision be filed within 15 days of the entry of the decision. The Department’s motion for a rehearing was filed 12 days after the entry of the September 22, 2004, order, and, therefore, that motion was timely filed under § 41-22-17(a).

With regard to the length of time that a motion seeking reconsideration or rehearing of an administrative law judge’s decision may remain pending, § 41-22-17 specifies:

“(e) Within 30 days from the filing of an application the agency may in its discretion enter an order:
“(1) Setting a hearing on the application for a rehearing which shall be heard as soon as practicable; or
“(2) With reference to the application without a hearing; or
“(3) Granting or denying the application.
“If the agency enters no order whatsoever regarding the application within the 30-day period, the application shall be deemed to have been denied as of the expiration of the 30-day period.”

The record on appeal indicates that the administrative law judge did not enter any order specified under subsection (e) of § 41-22-17 within 30 days of the filing of the October 4, 2004, motion for a rehearing. Rather, on December 6, 2004, the administrative law judge purported to enter an order denying the Department’s motion. However, the Department’s motion for a rehearing had been denied by operation of law pursuant to § 41-22-17(e) on November 3, 2004, 30 days after the Department had filed that motion. The December 6, 2004, order was entered after the administrative law judge had lost jurisdiction to rule on the Department’s motion for a rehearing, and, therefore, that order was a nullity.

The AAPA specifies that a party may appeal a decision of the administrative law judge to the circuit court of the county in which an agency has its headquarters or to the Montgomery Circuit Court (hereinafter “the trial court”). § 41-22-20(b), Ala. Code 1975; State Pers. Bd. v. State Dep’t of Mental Health & Mental Retardation, 694 So.2d 1367, 1372 (Ala.Civ.App.1996) (the department, as a party to the administrative proceeding, has the right to appeal to the trial court). With regard to the timing of an appeal of an administrative decision to a circuit court, the AAPA provides:

“The notice of appeal or review [from an administrative order] shall be filed within 30 days after the receipt of the notice of or other service of the final decision of the agency upon the petitioner or, if a rehearing is requested under Section 41-22-17, within 30 days after the receipt of the notice of or other service of the decision of the agency thereon.”

§ 41-22-20(d), Ala.Code 1975.

Pursuant to § 41-22-20(d), the Department was required to file its notice of appeal within 30 days of when the decision of the administrative law judge became final; a timely filing under § 41-22-20(d) is jurisdictional. § 40-22-20(d); Eit-zen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App. 1998) (when the aggrieved party failed to file a notice of appeal, he “did not properly invoke the jurisdiction of the trial court and ... the trial court did not have jurisdiction to enter a judgment”); Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 48 (Ala.1995) (failure to timely appeal under the AAPA was not justified by an interpretation of an agency regulation because “[ajppeals from decisions of administrative agencies are purely statutory, and the time periods provided by the statute must be strictly observed”); State Dep’t of Human Res. v. Funk, 651 So.2d 12, 15 (Ala.Civ.App.1994) (holding that the timely filing of a notice of appeal of an administrative decision pursuant to § 41-22-20 of the AAPA is jurisdictional but that the timely posting of a security bond for such an appeal was not jurisdictional); State Medicaid Agency v. Anthony, 528 So.2d 326, 327-28 (Ala.Civ.App. 1988) (“[T]he jurisdiction of the trial court is determined by compliance with [the AAPA’s] statutory time periods.”). In this case, the administrative law judge’s decision became final on November 3, 2004, when the Department’s rehearing motion was denied by operation of law pursuant to § 41-22-17(e). The Department was required to have filed its notice of appeal by December 3, 2004, which is 30 days after November 3, 2004. § 40-22-20(d); Eitzen v. Medical Licensure Comm’n of Alabama, supra; State Medicaid Agency v. Anthony, supra; Ex parte Crestwood Hosp. & Nursing Home, Inc., supra; State Dep’t of Human Res. v. Funk, supra; and Patura, v. Medical Licensure Comm’n of Alabama, 981 So.2d 1122, 1124 (Ala.Civ. App.2007). The Department filed its notice of appeal to the trial court of the administrative law judge’s decision on January 4, 2005, well outside the time allowed by the provisions of the AAPA. The trial court purported to enter a judgment reversing the administrative law judge’s decision on October 23, 2007. However, because the notice of appeal to that court from the administrative law judge’s decision was untimely filed, the trial court never obtained jurisdiction over this matter, and the judgment it purported to enter on October 23, 2007, was a nullity. See Ex parte Punturo, 928 So.2d 1030, 1034 (Ala.2002) (“A judgment issued by a trial court without jurisdiction is a nullity.”); and J.B. v. A.B., 888 So.2d 528, 532 (Ala. Civ.App.2004) (same).

A void judgment will not support an appeal. Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2005). Accordingly, because we conclude that the trial court’s October 23, 2007, judgment was void, we must dismiss Krawczyk’s appeal. In reaching our holding in this case, we make no finding with regard to the propriety of the administrative law judge’s decision.

APPEAL DISMISSED.

All the judges concur.