source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte CITY BOY’S TIRE AND BRAKE, INC. (In re Claudia Dabbieri v. City Boy’s Tire and Brake, Inc., et al.).
    1100205.
    Supreme Court of Alabama.
    Dec. 30, 2011.

      William J. Gamble and Thomas C. Atchi-son of Gamble, Gamble & Caíame, LLC, Selma, for petitioner.

      Matthew C. Minner and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLC, Birmingham, for respondent.
   PARKER, Justice.

Claudia Dabbieri filed a complaint in the Perry Circuit Court naming as defendants Donald Wease, Alabama Cable and Fiber Repair (“Alabama Cable”), PDQ CATV, Inc. (“PDQ”), City Boy’s Tire and Brake, Inc. (“CBT”), Continental Tire the Americas, LLC, and several fictitiously named defendants, asserting claims arising out of a motor-vehicle accident in Perry County. CBT moved the trial court, pursuant to Rule 12(b)(2), Ala. R. Civ. P., to dismiss Dabbieri’s claims against it for lack of personal jurisdiction; that motion was denied, and CBT petitioned this Court for a writ of mandamus, directing the trial court to grant CBT’s motion to dismiss. We grant the petition and issue the writ.

Facts and Procedural History

On March 19, 2008, Dabbieri, who resides in Perry County, went to the shop operated by CBT, which is located in High Springs, Florida. Dabbieri was driving a 2001 Chevy van that she apparently co-owned with her employer, Wease. Dabbi-eri states in her complaint that, after purchasing the van in November 2007, Wease and Alabama Cable (a business owned by Wease and Dabbieri’s employer) had all four tires on the van replaced.

When Dabbieri brought the van into CBT’s shop on March 19, 2008, CBT’s employees determined that one of the tires was leaking ah’. Dabbieri purchased a new tire from CBT and had employees of CBT install that tire on the van; the new tire was identical to the tire it replaced. The total cost, including mounting and balancing the new tire as well as disposing of the old tire, was $151.83, which Dabbieri paid in cash. On the receipt/statement of work, below the itemization of work done by CBT on the van, was the following language:

“Declined alignment
Lifetime balance, rotation, & flat repairs with new tire purchase.
Tire bal. & rotate rec every 6,000 miles road hazard covers all non repairable tire punctures. Tires will be prorated by tread depth down to 2/32nd mark.
Customer is responsible instillation [sic].”

Neither Dabbieri nor any employee of CBT signed the receipt/statement of work.

On April 15, 2008, Dabbieri was driving the van in Perry County when one of the three original replacement tires on the van, i.e., not the tire installed by CBT on March 19, 2008, failed, causing the van to leave the road and roll; Dabbieri sustained severe injuries. Later investigation indicated that the tire failure was probably caused by tread separation and that the tread separation might have been caused, at least in part, by the improper sizing of the tires on the van.

On April 14, 2010, Dabbieri filed her complaint. Dabbieri claimed that, as part of the installation of the new tire, CBT had a duty to inspect the van and to warn her of any dangers the inspection might reveal, including, she said, the fact that the tires that were on the van were the wrong size. Dabbieri claimed that CBT breached that duty to inspect; that, as a result of CBT’s breach of that duty, she did not know the tires on the van were the wrong size; and that, because she lacked that knowledge, she continued driving the van with the wrong size tires, which, she claims, caused the accident in which she was injured.

For all that appears, neither Wease nor Alabama Cable responded to the complaint or appeared in the case. Continental Tire the Americas, LLC (allegedly the manufacturer of the failed tire), also apparently failed to respond to the complaint.

CBT filed a motion to dismiss, arguing that the trial court lacked personal jurisdiction over it. CBT attached to its motion to dismiss an affidavit from Justin Ellison, the sole shareholder of CBT, in which he testified:

“1. My name is Justin Ellison. I am the sole shareholder of City Boy’s Tire and Brake, Inc. (hereinafter referred to as ‘[CBT]’), who is one of the named defendants in the above styled cause.
“2. [CBT] is a Florida corporation and, as stated, I am the sole shareholder and owner of that corporation. [CBT] is in the business of automobile and truck maintenance.
“3. I am a resident of the State of Florida and have been a continuous resident of Florida for over 30 years. I have never owned property in Alabama and have never conducted business there.
“4. [CBT] is located in High Springs, Florida. It began business in 1991, and has continuously been in business since that date.
“5. [CBT] has never had any place of business other than High Springs, Florida.
“6. The vast majority of the business done by [CBT] is servicing vehicles of local residents in Alachua County, Florida and some of its adjoining counties.
“7. At times, [CBT] will service vehicles which are traveling through Florida and may be in need of service. However, any such service would be an isolated incident.
“8. [CBT] only advertises in Alachua County, Florida and surrounding Florida counties. It does so by advertising in local newspapers and may send postcards locally in Alachua County, Florida and surrounding counties.
“9. [CBT] has never done business in the State of Alabama.
“10. [CBT] has never advertised in the State of Alabama or solicited business in Alabama.
“11. [CBT] is not licensed to do business in Alabama and has never paid taxes in the State of Alabama.
“12. [CBT] has never had an office or business location in the State of Alabama, and has never employed anyone who was a resident of the State of Alabama.
“13. [CBT] has never done any business by agent in the State of Alabama.
“14. [CBT] has never owned any real or personal property located in the State of Alabama.
“15. [CBT] has never purposely availed itself of the privilege of conducting activities in Alabama.
“16. The selling of a tire by [CBT] at the place of business in March of 2008 to the Plaintiff, Claudia Dabbieri, was a single isolated incident.
“17. To the best of my knowledge [CBT] has never done any business with the plaintiff, other than on the one incident when she purchased a tire from [CBT],
“18. [CBT] does not solicit business or otherwise engage in any other persistent course of conduct or business in the State of Alabama. Accordingly, [CBT] does not derive substantial revenue from goods and services used or consumed in the State of Alabama nor from services rendered in the State of Alabama.
“19. All contact the plaintiff had with [CBT] was initiated by her. [CBT] never solicited her business.
“20. Although [CBT] is a corporation, it is essentially a sole proprietorship as the undersigned affiant is the only manager of the company.
“21. [CBT] has only one store located in High Springs, Florida, which is approximately 400 miles from Perry County, Alabama.
“22. To have to defend itself in Perry County, Alabama, would be a substantial hardship upon [CBT].”

Dabbieri responded to the motion to dismiss; attached to her response were a single page from an apparently three-page printout, dated June 25, 2010, from a Web site allegedly operated by CBT and the receipt/statement of work dated March 19, 2008, for the tire replacement performed by CBT. Shortly thereafter, Dabbieri supplemented her response, attaching a debit-card receipt and a statement of work from City Boy’s Tire & Brake of Alachua, Inc., located in Alachua, Florida, both dated June 14, 2008, which indicated that work had been done for “Alabama Cable”; a receipt/statement of work from CBT dated October 11, 2008, evidencing work done for an unidentified “cash customer”; and an affidavit from “Donald Wease d/b/a Alabama Cable and Fiber Repair.” Wease’s affidavit read, in relevant part:

“1. My name is Donald Wease. I am a citizen of the state of Alabama. I am over the age of 19 and am personally familiar with the facts stated herein.
“2. I am the President of Alabama Cable and Fiber Repair. Alabama Cable and Fiber Repair is an Alabama company with its place of business located in Perry County, Alabama.
“9. Over the course of the last 15 years I have also had over twenty business dealings with City Boys [sic] Tire and Brake, Inc., in buying tires and servicing vehicles. The service conducted was for vehicles used in the state of Alabama.
“10. During that time I have had telephone conversations with representatives of City Boys Tire and Brake, Inc., regarding work on those vehicles. I was in Alabama when those telephone conversations were conducted.
“11. City Boys Tire and Brake, Inc., has provided warranties for the goods and services provided that create an obligation by them to me and my business in Alabama.
“12. On June 14, 2008, City Boys Tire and Brake, Inc., conducted a transaction with me. A true and accurate copy of the receipt for that sale is attached hereto as Exhibit 3.
“13. On October 11, 2008, City Boys Tire and Brake, Inc., conducted another transaction with me. A true and accurate copy of the receipt for that sale is attached hereto as Exhibit 4.”

CBT, in turn, submitted a supplementary affidavit from Justin Ellison, in which he testified:

“1. My name is Justin Ellison. I previously submitted an Affidavit in this case dated May 12, 2010, which was attached as Exhibit ‘A’ to the Motion to Dismiss or in the Alternative Motion to Quash Service heretofore filed by City Boy’s Tire and Brake, Inc. (hereinafter ‘[CBT]’). The undersigned Affiant re-certifies the statements made in the aforesaid Affidavit of May 12, 2010.
“2. The undersigned is informed that an affidavit was made by Donald Wease making certain allegations with reference to Mr. Wease’s contacts with [CBT]. Affiant is further informed that attached to the affidavit are two invoices, one addressed to Alabama Cable, 307 West Green Street, Marion, Alabama dated June 14, 2008. This invoice is from City Boy’s Tire and Brake of Alachua, Inc. (hereinafter referred to as ‘City Boy’s of Alachua’). That company is a separate company from [CBT]. Neither the undersigned Affiant[ ] nor [CBT] own any stock in or have any connection with City Boy’s of Alachua. At one time (prior to the accident made the basis of the complaint) the undersigned Affiant did own City Boy’s of Alachua; however, that business was sold to separate parties in 2007 and neither the Affiant nor [CBT] has had any ownership interest in that company since it was sold.
“3. [CBT] only does business out of its sole place of business in High Springs, Florida. It does not service vehicles anywhere except at its place of business in High Springs.
“4. The Invoice No. 162399 attached as Exhibit 4 to the affidavit of Donald Wease involved only a dismounting and mounting of a tire and replacing valve stems. The work done on that date for that invoice was done solely at the High Springs, Florida place of business of [CBT]. Whoever requested the work as described on said invoice would have initiated the contact with [CBT] at its place of business in High Springs, Florida.
“5. Although [CBT] has no record of doing business with Donald Wease or Alabama Cable in its records, it does not deny that it may have done tire work as shown on Exhibit 4 attached to the affidavit of Mr. Wease. However, as above stated, such work would have been done at its place of business in High Springs, Florida.
“6. Neither the undersigned Affiant, nor anyone at [CBT] has any recollection of any telephone conversations they may have had with Donald Wease. Neither the undersigned Affiant nor any agent or employee of [CBT] has ever conducted business in Alabama.
“7. The transaction between the plaintiff, Claudia Dabbieri, and [CBT] made the basis of the complaint involved the replacement of one tire at a costs [sic] of $151.83, which was paid in cash. The only guarantees or warranties [CBT] gave when it replaced the tire for the plaintiff is that it would rotate and balance the tires at its shop in High Springs, Florida every 6,000 miles, and that it would replace a non-reparable tire puncture with a new tire on a prorated basis, based upon tread wear. Any such rotating or replacement would be done at its shop in High Springs.
“8. Claudia Dabbieri never availed herself of the guarantees or warranties made by [CBT] listed in paragraph 7 above with reference to balancing the tire she was sold or replacing it due to a non-repairable tire puncture.
“9. [CBT] does not solicit business in Alabama either through sales persons or through advertising reasonably calculated to reach Alabama.
“10. The website of [CBT] only posts or sends information about the services, products and other information of [CBT].”

The trial court denied CBT’s motion to dismiss. CBT then petitioned this Court for a writ of mandamus.

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).

“ ““ “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. Giamarco & 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 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 files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.’) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).”
‘Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004).’ ”

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

Discussion

Alabama courts may exercise personal jurisdiction over an out-of-state defendant only as permitted by Rule 4.2(b), Ala. R. Civ. P.:

“Rule 4.2(b), Ala. R. Civ. P., Alabama’s ‘long-arm’ provision, governs whether an Alabama court may exercise personal jurisdiction over an out-of-state defendant. In pertinent part, that rule 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.... ’
“This rule extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions. When applying Rule 4.2(b), this Court has interpreted the due process guaranteed under the Alabama Constitution as coextensive with that guaranteed under the United States Constitution.”

Hiller Invs., Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1114-15 (Ala.2006). Thus, when applying Rule 4.2, Ala. R. Civ. P., we look not to statutes or rules, but to the essence of due process. As this Court stated in Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 461 (Ala.1986), instead of simply applying formulas, we rely on principles of fairness and justice:

“ ‘ “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” ’ McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Alabama’s long-arm statute (Rule 4.2, Ala. R. Civ. P.) has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977), Duke v. Young, 496 So.2d 37 (Ala.1986).
“Alabama’s long-arm procedure for service of process is not limited to ‘rigid transactional categories’ or subject to a mechanical formula. Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983). Instead, the relevant facts and attendant circumstances must be examined and the relationship among the defendant, the forum, and the litigation analyzed to determine if the defendant has sufficient ‘minimum contacts’ so that ‘the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ International Shoe Co. v. Washington.”

Personal jurisdiction is analyzed under theories of specific jurisdiction and general jurisdiction. As this Court explained in Ex parte Citizens Property Insurance Corp., 15 So.3d 511, 516 (Ala.2009):

“Personal jurisdiction can rest either on the theory of specific jurisdiction, when ‘a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum,’ Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), or on the theory of general jurisdiction, ‘when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, [but] ... there are sufficient [continuous and systematic] contacts between the State and the foreign corporation.’ Id. at 414-16, 104 S.Ct. 1868; see also Ex parte Covington Pike Dodge, Inc., [904 So.2d 226 (Ala.2004) ]. This Court has stated, however, that regardless of whether the issue of jurisdiction is considered under specific-jurisdiction analysis or under general-jurisdiction analysis, ‘[t]he critical question with regard to the nonresident defendant’s contacts [with the forum state] is whether the contacts are such that the nonresident defendant ‘should reasonably anticipate being haled into court’ ” in the forum state.’ Elliott [v. Van Kleef], 830 So.2d [726,] at 730 [(Ala. 2002) ] (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting in turn World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (emphasis added)).”

Dabbieri acknowledges that the trial court lacked general jurisdiction over CBT in this case; thus, the issue before us is whether the trial court had personal jurisdiction over CBT under a specific-contacts analysis.

“As a general rule, the exercise of judicial power is not lawful unless the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” J. McIntyre Mach., Ltd. v. Nicastro, — U.S. -, -, 131 S.Ct. 2780, 2785, 180 L.Ed.2d 765 (2011) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the United States Supreme Court explained that the exercise of specific jurisdiction over an out-of-state defendant required a showing of purposeful action by the defendant of directing its activity toward residents of the forum state:

“Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities, Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Thus ‘[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State’ and those products subsequently injure forum consumers. World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. [286], at 297-298 [ (1980) ].... And with respect to interstate contractual obligations, we have emphasized that parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Assn. v. Virginia, 339 U.S. 643, 647 (1950). See also McGee v. International Life Insurance Co., 355 U.S. 220, 222-223 (1957).”

471 U.S. at 472-73. The Supreme Court went on to explain that to be purposeful, the out-of-state defendant’s contacts with the forum state must be deliberate and substantial, rather than accidental or random:

“This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, Keeton v. Hustler Magazine, Inc., 465 U.S., at 774; WorldWide Volkswagen Corp. v. Woodson, supra, 444 U.S., at 299, or of the ‘unilateral activity of another party or a third person,’ Helicópteros Nacionales de Colombia, S.A. v. Hall, supra, 466 U.S., at 417. Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State. McGee v. International Life Insurance Co., supra, 355 U.S., at 223; see also Kulko v. California Superior Court, supra, 436 U.S. [84], at 94, n. 7 [ (1978) ]. Thus where the defendant ‘deliberately’ has engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, 465 U.S., at 781, or has created ‘continuing obligations’ between himself and residents of the forum, Travelers Health Assn. v. Virginia, 339 U.S., at 648, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.”

471 U.S. at 475-76 (footnote omitted).

On appeal, CBT cites Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459 (Ala.2003), in support of its argument that the trial court’s denial of its motion to dismiss was improper. In Troncalli, David Case, a resident of Alabama, purchased an automobile from Troncalli Chrysler Plymouth Dodge, Inc., a Georgia automobile dealership. Case later sued Troncalli, alleging bad faith, misrepresentation, deceit, breach of contract, and other claims. Discussing the trial court’s lack of personal jurisdiction over the defendant in that case, this Court stated:

“Case concedes, as he must, that Troncalli’s jurisdictional objection ‘might be correct if [Case] simply drove to [Troncalli’s] Georgia location to purchase the vehicle without being induced to do so.’ ... This is so, he argues, because personal jurisdiction, which purports to be based solely on an isolated sale by an out-of-state defendant to the in-state plaintiff, is generally unsustainable. See Network Professionals, Inc. v. Network Int’l, Ltd., 146 F.R.D. 179, 181 n. 1 (D.Minn.1993) (‘The due process analysis focuses on a defendant’s contacts with the forum, not its contacts with the plaintiff; thus, an isolated sale will not support jurisdiction, even if the cause of action arises from the sale.’); see also Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d 40 (8th Cir.1988); Chung v. NANA Dev. Corp. 783 F.2d 1124, 1126 (4th Cir.1986) (a sale comprising no more than an ‘ “isolated” or “attenuated” single transaction ... has always been deemed inadequate to satisfy due process’); Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir.1978) (‘four sporadic and isolated sales’ did not support personal jurisdiction); Butler v. Beer Across Ameñca, 83 F.Supp.2d 1261 (N.D.Ala.2000); accord Stuart v. Spademan, 772 F.2d 1185 (5th Cir.1985); Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973); Douglas v. Modern Aero, Inc., 954 F.Supp. 1206 (N.D.Ohio 1997); Highway Auto Sales, Inc. v. Auto-Ko nig of Scottsdale, Inc., 943 F.Supp. 825 (N.D.Ohio 1996).
“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, Lie., 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 (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 (emphasis added).”

876 So.2d at 464-65.

Dabbieri points to this Court’s quotation in Troncalli (quoting Burger King) that the creation of “‘continuing obligations’” between the out-of-state defendant and the Alabama plaintiff might make an otherwise “isolated contact” sufficient to satisfy the “ ‘purposeful availment’ prong of the due-process analysis.” 876 So.2d at 465. She argues in her brief that “City Boy’s warranties created continuing obligations to an Alabama resident.” Dabbieri’s brief, at 16. Dabbieri argues, based on Wease’s affidavit, that CBT had an ongoing business relationship with Wease and Dabbieri and therefore knew, when Dabbieri purchased the tire on March 19, 2008, that Dabbieri was an Alabama citizen. Dabbieri further argues that the purchase of the new tire, with the accompanying promise by CBT to rotate and balance the tire or to replace it if it failed, created a continuing obligation on CBT’s part within this State, thus making it foreseeable that CBT would be haled into court in Alabama. But the limited obligation in this case — CBT’s promise to rotate and, if necessary, to repair or replace the tire at its place of business in High Springs, Florida — involves no obligation in Alabama.

Dabbieri also directs our attention to Ex parte Pope Chevrolet, Inc., 555 So.2d 109, 114 (Ala.1989), in which this Court held that the defendant, “a large-volume [automobile] dealership,” had purposefully availed itself of the protection of Alabama laws when it advertised through regional publications, “soliciting sales from beyond the borders of Georgia.” However, Dabbi-eri provides no explanation of how Pope applies in this case, and the evidence before this Court does not indicate that CBT was “a large-volume” tire store that advertised across a multistate region.

Similarly, Dabbieri cites Lowry v. Owens, 621 So.2d 1262 (Ala.1993), a case factually similar to and relying on Pope, but again without an explanation as to its applicability. Like Pope, the decision in Lowry turned on the fact that the defendant’s advertising targeted Alabama residents. As noted, CBT does not advertise in Alabama. In discussing Pope and Low-ry, the Troncalli Court noted that those cases “involved much more than isolated contacts initiated by in-state plaintiffs.” 876 So.2d at 467.

Dabbieri also cites Boyd v. U-Haul International, Inc., 527 So.2d 713 (Ala.1988), in which this Court upheld the exercise of personal jurisdiction over an international corporation that was actively involved in the management and operations of its Alabama subsidiary. Like Pope and Lowry, however, this case is inapplicable. CBT does not have an Alabama subsidiary, nor does it do any business in Alabama.

Dabbieri also argues that the reference in Troncalli to “something more than an isolated contact,” 876 So.2d at 465, is a misapplication of Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), authored by Justice O’Connor, and she “urges the Court to take this opportunity to explain that [Ex parte DBI, Inc., 23 So.3d 635 (Ala.2009),] also had the effect of overruling the ‘something more’ test that was announced for the first time in Troncalli.” Dabbieri’s brief, at 20-21. Dabbieri argues that the Troncalli Court’s reference to “something more” is the equivalent of “stream-of-commeree-plus” (a common shorthand this Court and others have used to describe the theory advanced by Justice O’Connor’s opinion in Asahi) and that rejecting the “stream-of-eommeree-plus” argument would therefore require us to reach a different outcome than the outcome dictated by this Court’s decision in Troncalli.

Ultimately, however, the distinction between “stream-of-commerce” and “stream-of-commerce-plus” is irrelevant to this case. The cases cited by Dabbieri — Asahi DBI, Ex parte Alloy Wheels International, Ltd., 882 So.2d 819 (Ala.2003), Brown v. ABUS Kransysteme GmbH, 11 So.3d 788 (Ala.2008), and Ex parte Mclnnis, 820 So.2d 795 (Ala.2001) — each involved a product, placed into the stream of commerce, that allegedly caused harm in the place to which the stream took it. That did not happen here. The tire CBT sold to Dabbieri was not defective, and it did not cause harm to her or anyone else. Dabbieri’s cause of action against CBT does not involve a product that entered Alabama through the stream of commerce; rather, this case involves an alleged negligent inspection and consequent failure to warn. Both the alleged negligent inspection and failure to warn occurred, if at all, in Florida. The debate between “stream-of-commerce” and “stream-of-commerce-plus” is, therefore, despite Dabbieri’s extended argument in her brief, simply inapplicable. As the United States Court of Appeals for the Fourth Circuit said in Federal Insurance Co. v. Lake Shore Inc., 886 F.2d 654, 659-60 (4th Cir.1989):

“[A] ‘stream of commerce’ theory of personal jurisdiction has no applicability here. Factors that might make such a theory applicable, such as marketing and advertising a product for the forum state, are absent. Asahi, 480 U.S. at 112 (O’Connor, J.). The case also appears to be one in which ‘a consumer fortuitously transports a defendant’s product’ into a forum rather than one involving a forum where ‘the defendant’s product was regularly sold.’ Id. at 119 (Brennan, J., concurring in part and concurring in the judgment). Finally, the case is not one involving a ‘regular course of dealing that results in deliveries’ of multiple units into a forum ‘annually over a period of several years.’ Id. at 122 (Stevens, J., concurring in part and concurring in the judgment). Whether personal jurisdiction would attach in these latter circumstances under a ‘stream of commerce’ theory is simply not before us.”

Dabbieri also cites Kehoe v. Boat Sara T, Inc., 653 F.Supp. 853 (D.Mass.1987), and Sierra v. A Betterway Rent-A-Car, Inc., 863 So.2d 358 (Fla.Dist.Ct.App.2003), to show that language from stream-of-commerce cases has been applied to service-related, as opposed to product-related, litigation. Kehoe and Sierra, however, involved personal jurisdiction under a general-contacts analysis and not, as here, under a specific-contacts analysis.

In Ex parte Citizens Property Insurance Corp., supra, this Court stated that “[t]he issue of personal jurisdiction “‘stands or falls on the unique facts of [each] case.” ’ ” 15 So.3d at 515 (quoting Ex parte I.M.C., Inc., 485 So.2d 724, 725 (Ala.1986)). CBT argues that the facts in this case demonstrate that the transaction here was nothing “more than an isolated contact initiated by an in-state plaintiff.” Troncalli, 876 So.2d at 465. As Ellison stated in his affidavit, CBT does no business in Alabama. It has no office or agent here and owns no property in this State. CBT does not advertise in Alabama and makes no effort to obtain the business of Alabama citizens. Like the transaction in Troncalli, CBT’s sale of the tire to Dabbieri was an “ ‘ “isolated” ... single transaction,’ ” 876 So.2d at 464, a contact “ ‘ “created by the unilateral acts of the Plaintiff.” ’ ” 876 So.2d at 465 (quoting other cases). Dabbieri, however, argues that, because she gave CBT her Alabama address and because CBT saw that the van was licensed in Alabama, CBT should have foreseen that any faulty work on its part might lead to litigation in Alabama. But, as the United States Supreme Court said in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-97, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), “foreseeability” alone does not justify the exercise of personal jurisdiction:

“Applying these principles to the case at hand, we find in the record before us a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom
“It is argued, however, that because an automobile is mobile by its very design and purpose it was ‘foreseeable’ that the Robinsons’ Audi would cause injury in Oklahoma. Yet ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause....
“If foreseeability were the criterion, a local California tire retailer could be forced to defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502, 507 (4th Cir.1956); a Wisconsin seller of a defective automobile jack could be haled before a distant court for damage caused in New Jersey, Reilly v. Phil Tolkan Pontiac, Inc., 372 F.Supp. 1205 (N.J.1974); or a Florida soft-drink concessionaire could be summoned to Alaska to account for injuries happening there, see Uppgren v. Executive Aviation Services, Inc., 304 F.Supp. 165, 170-171 (Minn.1969). Every seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel....
“This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. California Superior Court, supra, 436 U.S. [84], at 97-98 [ (1978) ]; Shaffer v. Heitner, 433 U.S. [186], at 216 [ (1977) ], and see id., at 217-219 (Stevens, J., concurring in judgment). The Due Process Clause, by ensuring the ‘orderly administration of the laws,’ International Shoe Co. v. Washington, 326 U.S., at 319, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”

(Footnote omitted.)

Applying these principles to Dabbieri’s tire purchase from CBT, we conclude that that transaction was an “isolated occurrence” that was not sufficient to cause CBT to “reasonably anticipate being haled into court” in Alabama. As this Court recently said in Ex parte No. 1 Steel Products, Inc., 76 So.3d 805, 812 (Ala.2011): “We have in previous cases ‘explicitly recognized that a one-time contract for the purchase of goods is an insufficient basis for jurisdiction.’ ” (Quoting Vista Land, & Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So.2d 1170, 1177 (Ala.2006).) Therefore, based on the Supreme Court’s language in World-Wide Volkswagen and on our own decision in Troncalli, we conclude that the exercise of personal jurisdiction over CBT by the trial court in this case would violate due process.

CBT states in its reply brief that “[n]othing in any of the evidence presented by Dabbieri shows anything at all having been done by [CBT] to show it having any contact directed to the State of Alabama.” CBT’s reply brief, at 5. CBT continues:

“The only thing [CBT] did was sell a tire to Dabbieri, who initiated the contract, gave them an Alabama address, and, according to Dabbieri, but denied by [CBT], failed to warn her the tires on her van were the wrong size. This single event took place entirely in High Springs, Florida, at the shop of [CBT] and resulted from the unilateral activity of Dabbieri. This is the only contact enumerated by Dabbieri which is related to her cause of action. Any contact [CBT] may have had with Donald Wease would not be related to plaintiffs cause of action against [CBT].”

CBT’s reply brief, at 5. We agree. The limited evidence before this Court gives no indication that CBT “purposefully availed” itself of the protection of the laws of Alabama or that it should reasonably have expected to be haled into court here.

Conclusion

Based on the foregoing, we conclude that CBT had a clear legal right to have Dabbieri’s claims against it dismissed; thus, the trial court erred in denying CBT’s motion to dismiss. We therefore grant the petition and issue the writ of mandamus, directing the trial court to vacate its order denying CBT’s motion to dismiss and to enter an order dismissing Dabbieri’s action as to CBT.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL and MURDOCK, JJ., concur in the result.

      . The nature of the entity Alabama Cable is unclear from the materials before the Court. It is referred to in those materials as both an independent company and "Donald Wease d/b/a Alabama Cable and Fiber Repair.”

      . Dabbieri and Wease are both named on the bill of sale for the purchase of the van, indicating that they both had an ownership interest in the vehicle, but neither the title nor the registration for the van are included in the materials before us.

      . PDQ, which sold the van to Wease and Dabbieri, also filed a motion to dismiss for lack of personal jurisdiction; that motion was also denied, and, like CBT, PDQ filed a petition for a writ of mandamus with this Court. The petitions filed by PDQ and CBT were consolidated for purposes of briefing and submission, and a significant portion of Dabbi-eri’s brief is in response to PDQ's petition. However, PDQ’s petition was withdrawn and is no longer before this Court.

      . See Dabbieri's response in opposition to CBT’s motion to dismiss, at 5 ("This is a case of specific jurisdiction.”).


author: WOODALL, Justice.

text:
    M. John STEENSLAND, Jr. v. ALABAMA JUDICIAL INQUIRY COMMISSION.
    1100985.
    Supreme Court of Alabama.
    Jan. 6, 2012.

      William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & James, Birmingham, for appellant.
    Luther Strange, atty. gen., and John C. Neiman, Jr., and Prim F. Escalona, deputy attys. gen., for appellee.
   WOODALL, Justice.

M. John Steensland, Jr., a retired district judge in Houston County, appeals from a judgment of the Alabama Court of the Judiciary (“the COJ”) that publicly censured him for judicial misconduct that preceded his retirement. We affirm.

I. Factual and Procedural Background

Judge Steensland first assumed his duties as a district judge in Houston County in 1989. On January 20, 2009, he began to serve the six-year term to which he was elected in November 2008. Subsequently, the Alabama Judicial Inquiry Commission (“the JIC”) began an investigation based upon complaints against Judge Steensland filed by (1) Stacie R., (2) Julie M„ (3) Natasha H., and (4) Cynthia M., regarding Judge Steensland’s courtroom conduct and demeanor. On May 7, 2010, while the JIC’s investigation was ongoing, Judge Steensland voluntarily retired from his office.

On December 14, 2010, the JIC filed a complaint in the COJ charging Judge Steensland with violations of various of the Canons of Judicial Ethics. The complaint contained 7 “counts” and 60 accompanying “charges.” Counts 1 and 2, which included charges 1 to 15, arose out of the allegations by Stacie R. Count 3, which included charges 16 to 25, arose out of the allegations made by Julie M. Count 4 and the accompanying charges 26 to 35 arose out of the allegations of Natasha H. and Cynthia M. Count 5, which included charges 36 to 46, pertained to incidents and conduct that occurred in 2007 and was unrelated to the named complainants. Count 6 included charges 47 to 56 and involved incidents and conduct that occurred before January 2009, which charges were expressly described as “exhibiting] a ‘pattern and practice’ ” of conduct violative of certain Canons. Count 7, with charges 57 to 60, also involved some incidents and conduct that occurred before January 2009 and did not involve the named complainants.

On March 1, 2011, Judge Steensland moved to dismiss the complaint, arguing, among other things, (1) that the JIC “had no jurisdiction over [him] on the date of the filing of this Complaint, December 14, 2010”; and (2) that some of the charges were “barred by the doctrine of condonation in that the alleged acts complained of occurred” before the commencement of his last term of office, i.e., before January 20, 2009. After a hearing held on March 3, 2011, the COJ denied Judge Steensland’s motion to dismiss.

On April 18, 2011, Judge Steensland sent a letter to the chief judge of the COJ. That letter stated, in pertinent part:

“On May 7, 2010, after more than twenty-one years of service as District Judge of Houston County, I retired from the bench and have been on retired-inactive status since that time. This letter serves as official written notice to you that it is my intent to remain inactive. Accordingly, any request, whether now or in the future, that I return to active duty status, or exercise any judicial authority, is hereby declined.”

The case against Judge Steensland proceeded to trial. Following the trial, the COJ issued the following “final judgment and public censure”:

“On December 14, 2010, [the JIC] filed a complaint with [the COJ] charging M. John Steensland, Jr., with violating the Canons of Judicial Ethics (‘the Canons’), while presiding over court proceedings in his capacity as a district judge in Houston County. Based on the testimony presented at trial, this court hereby finds as follows:
“On January 5, 2010, Judge Steens-land held a docket to hear traffic cases. Stacie R. had received a ticket for simple speeding and was the first person to appear before Judge Steensland that day. She entered a plea of ‘not guilty’ and requested a trial on the speeding charge. Evidence was then presented in her case, after which Judge Steens-land found Ms. R. guilty and sentenced her to ten days in jail. Ms. R. testified before this court that, after Judge Steensland pronounced sentence, she was handcuffed and was made to sit in a chair along the wall toward the front of the courtroom.
“Ms. R. testified that after she was handcuffed she explained to Judge Steensland that she was a veteran of the Iraq war, that she had been injured while serving in Iraq, and that she suffered from post-traumatic stress disorder. Because of her injuries and her disorder, Ms. R. explained, she could not endure being handcuffed. Nonetheless, she said, she remained in handcuffs throughout the approximately two hours of that court session. During that time, Ms. R. testified, she was crying and shaking, and, at one point, it appeared as though she was about to hyperventilate. Ms. R. stated that, in an effort to calm her, courtroom personnel told her that Judge Steensland would release her at the end of the docket and that she would not actually be going to jail.
“According to testimony from a number of witnesses, as other defendants came forward at the session of court to enter their pleas in traffic cases, Judge Steensland would ask whether they wanted to plead guilty or ‘end up’ like Ms. R. No other defendant requested a trial during the traffic-case docket that day. At the end of the docket, Judge Steensland set aside Ms. R.’s sentence and ordered her to pay a fine of $50 plus costs.
“On the same day Ms. R. was in Judge Steensland’s courtroom, Julie M., whose teenage son had received a ticket for speeding and a ticket for failing to have proof of automobile insurance, accompanied her son to court. They attended the session of court during which Ms. R. was handcuffed and made to sit at the front of the courtroom. Ms. M. testified that, throughout the court session, Judge Steensland appeared to be angry and was yelling and cursing from the bench. Her son had intended to seek youthful-offender status, but, Ms. M. said, in light of Judge Steensland’s demeanor and his treatment of Ms. R., her son chose to plead guilty instead. Ms. M. testified that she told Judge Steensland that her son was pleading guilty only because Judge Steensland was ‘too angry.’ Judge Steensland then called the attention of the people in the courtroom to her son because, Ms. M. said, Judge Steensland said that her son was doing the ‘smart’ thing by pleading guilty.
“Another litigant [Natasha H.] testified that, in November 2009, she appeared before Judge Steensland regarding a domestic complaint she had filed against her husband. That litigant testified that she suffered from a medical disorder that affected her short-term memory. When she was unable to remember details of the complaint she had filed against her husband, she said, Judge Steensland became angry and told her that she was going to go to jail. Although she was not charged with an offense, that litigant was placed in handcuffs and was taken to jail. Because she had not been charged, no bond had been set, and she spent the night in jail. She was not released until late in the afternoon the following day.
“That same day in November 2009, Cynthia M. appeared before Judge Steensland in a matter involving her daughter, which had arisen approximately two years earlier. Ms. M. testified that she believed that she and her daughter were going to court for a hearing on whether her daughter was to lose her pretrial-diversion status. Instead, when they appeared before Judge Steensland, they learned that there was to be a trial.
“Ms. M. testified that before her daughter’s case was called for trial, Judge Steensland was yelling and cursing from the bench and that she had seen a litigant handcuffed and ordered to jail because she was unable to remember some details of her case. Ms. M. stated that she was terrified, because, like the previous litigant, she suffered from a medical condition that affected her memory. When her daughter’s case was called, Ms. M. said, she told Judge Steensland that she would have to go to jail because she could not remember everything that had occurred. According to Ms. M., Judge Steensland told her that she ‘needed to get her d--n memory back.’ He then told Ms. M.’s daughter that she had to plead guilty to keep her mother from going to jail. Ms. M., who stated that she was crying while she was before Judge Steensland, testified that she told Judge Steensland that she did not believe her daughter should have to plead guilty because she could not remember what had happened. She said that Judge Steensland then ordered her' to jail and had her handcuffed. Although she was held in the jail overnight, Ms. M. said, she was not charged and no bond was set. She stated that her husband hired an attorney and that the next day another judge released her from jail after finding that no arrest warrant had been issued for her.
“This court finds that in addition to the specific incidents set forth above, Judge Steensland often used profanity and yelled at litigants from the bench. In his capacity as a district judge, Judge Steensland would demean, mock, and humiliate the litigants, both defendants and complaining witnesses who appeared before him, especially when the litigants were appearing pro se. On a number of occasions, Judge Steensland asked victims of domestic abuse what they hade done to cause the abuse. Judge Steensland also made a practice of sentencing to jail defendants who appeared before him early in the docket and who pleaded ‘not guilty’ and requested a trial. The sentences in those cases were imposed in bad faith in an effort to discourage other defendants from seeking a trial. Judge Steens-land’s conduct is without reasonable excuse or justification.
“On the basis of the evidence presented, not all of which is set out herein, this court finds that the JIC proved by clear and convincing evidence that Judge Steensland is guilty of violating the following Canons of Judicial Ethics:
“• Canon 1, by failing to observe high standards of conduct that would preserve the integrity and independence of the judiciary;
“• Canon 2, by failing to avoid impropriety and the appearance of impropriety in all of his activities, specifically, by failing to respect and to comply with the law, and by failing to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A) and by failing to avoid conduct prejudicial to the administration of justice, thereby bringing the judicial office into disrepute, and by failing to maintain the decorum and temperance befitting his office (Canon 2B); and
“• Canon 3, by failing to perform the duties of his office impartially, specifically by failing to be faithful to the law (Canon 3A(1)), by failing to maintain order and decorum in the proceedings before him (Canon 3A(2)), by failing to be patient, dignified, and courteous to litigants and others with whom he dealt in his official capacity (Canon 3A(3)), and by failing to accord to every person who is legally interested in a proceeding the full right to be heard according to law (Canon 3A(4)).
“This court notes that Judge Steens-land voluntarily retired on May 7, 2010, approximately 15 months into his most recent six-year term.
“Based on the findings of this court after a thorough consideration of all the evidence and taking into consideration the limitations on the ability of this court to sanction Judge Steensland in this matter it is hereby ordered and adjudged as follows:
“That Judge Steensland be publicly censured by the publication of this order of final judgment and public censure in a newspaper of general circulation in Houston County. This court also prohibits M. John Steensland, Jr., from ever serving as a judge in any case in any court in Alabama or from exercising any judicial authority in any manner whether now or in the future.”

(Emphasis added.) From this judgment, Judge Steensland appeals.

On appeal, Judge Steensland does not challenge the sufficiency of the evidence or the nature of the discipline imposed. He merely renews the grounds he originally asserted in his motion to dismiss the complaint: the absence of jurisdiction and the application of the doctrine of condonation.

II. Discussion

The issues presented involve only questions of law. Consequently, our review is de novo.

A. Jurisdiction

Judge Steensland contends that, “[ajfter [he] retired, inactive, on May 7, 2010, [the COJ] and [the JIC] lost jurisdiction to consider or charge or decide or inquire into events that occurred during his judicial service.” Judge Steensland’s brief, at 5-6 (emphasis added). For this proposition, he cites Johnson v. Board of Control of Employees’ Retirement System, 740 So.2d 999 (Ala.1999), and Ex parte Alabama State Bar, 3 So.3d 178 (Ala.2008). The JIC contends, and we agree, that these cases are inapposite.

The sole question in Johnson was whether Inge Johnson, who took “the oath of a retired [circuit] judge on inactive status of the State of Alabama and [was] sworn in as a United States district judge,” 740 So.2d at 1012 (emphasis added), was nevertheless still holding her state judgeship as an “ ‘office of profit’ as contemplated by [Ala. Const.1901,] § 280,” 740 So.2d at 1012, which prohibits any person “holding an office of profit under the United States” from “holding] any office of profit under this state.” 740 So.2d at 1007. This Court answered that question in the negative and held that Judge Johnson was not required to forfeit her State retirement benefits upon her appointment with the federal bench.

Judge Steensland quotes Johnson extensively for its discussion and recognition of the inapplicability of various Canons, or portions of Canons, to judges on inactive-duty status and concludes with the following quotation: “ ‘A retired, inactive judge ... is not holding an office at all.’ ” Judge Steensland’s brief, at 9 (quoting Johnson, 740 So.2d at 1012). Thus, he relies on Johnson for the rather unremarkable proposition that a judge who retires from his or her office and is then on inactive-duty status is not still holding judicial office.

There is no issue regarding Judge Steensland’s current status, that is, there is no contention in the case that he is still holding his judicial office. The issue here is not the applicability of certain Canons to conduct that occurs during the period of inactive-duty retirement, as was the issue in Johnson. Judge Steensland is not charged with violating the Canons while he was out of office. The issue here is whether a judge who retires on inactive-duty status remains subject to an investigation commenced by the JIC before his retirement and remains subject to discipline by the COJ for violations of the Canons of Judicial Ethics that occurred while the judge held the office. Thus, Johnson does not aid Judge Steensland.

Ex parte Alabama State Bar is similarly inapposite for a number of reasons. That case involved an attempt by the Alabama State Bar to discipline a sitting judge for alleged violations of the Alabama Rules of Professional Conduct that had occurred before his election to the bench. Otherwise stated, the question in that case was whether the Disciplinary Board of the Alabama State Bar (“the Board”) had “jurisdiction to discipline an incumbent judge for an alleged violation of the Rules of Professional Conduct while the incumbent judge was engaged in the private practice of law.” 3 So.3d at 181. This Court answered that question in the negative. Our disposition was guided by Rule 1(a)(2), Ala. R. Disc. P., which, at that time, provided: “Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama state bar.” (Emphasis added.)

Moreover, it is obvious that Ex parte Alabama State Bar did not involve the contention, such as that presented here, that a former judge in inactive-duty retirement is not subject to the jurisdiction of the JIC and the COJ. Indeed, that case was rather the converse of this one and is therefore fundamentally distinguishable.

We see nothing that counsels the result advocated by Judge Steensland. The JIC and the COJ are creations of the Alabama Constitution. In setting forth the powers and duties of the JIC, Ala. Const.1901, § 156(b), provides, in pertinent part:

“The [JIC] shall be convened permanently with authority to conduct investigations and receive or initiate complaints concerning any judge of a court of the judicial system of this state. The [JIC] shall file a complaint with the [COJ] in the event that a majority of the members of the [JIC] decide that a reasonable basis exists, (1) to charge a judge with violation of any Canon of Judicial Ethics, misconduct in office, failure to perform his or her duties, or (2) to charge that the judge is physically or mentally unable to perform his or her duties.... The [JIC] shall prosecute the complaints.”

(Emphasis added.) Concerning the duties of the COJ, Ala. Const.1901, § 157(a), states that “[t]he [COJ] shall be convened to hear com/plaints filed by the [JIC (Emphasis added.) Under this scheme, the JIC is constitutionally invested with the power and the duty to receive — as well as to initiate — complaints against incumbent judges.

Consistent with this scheme is Rule 6, Rules of Procedure of Judicial Inquiry Commission (“JIC Rule 6”), which, at all times relevant to these proceedings, provided, in pertinent part:

“Investigations
“A. Investigations may be instituted by the commission only upon a verified complaint filed either by a member of the public or by a member of the [JIC] or the [JIC’s] staff and only upon the affirmative vote of a majority of all members of the [JIC] at a duly called meeting agreeing to investigate the complaint.
“B. Within 60 days after a complaint is filed with the [JIC], whether by a member of the public or of the [JIC], the [JIC] must meet and vote on whether to investigate the complaint. A complaint shall become void if the [JIC] fails to meet for such a vote within the 60 days allowed or if, upon the vote at a meeting, fewer than a majority of all members of the [JIC] vote to investigate it. The [JIC] shall promptly notify the judge named in the complaint upon its becoming void.
“C. Within 21 days after any person, whether a member of the public or of the [JIC], files a complaint with the [JIC], the [JIC] must serve upon the judge who is the subject of the complaint copies of the complaint and any and all materials of any nature whatsoever constituting, supporting, or accompanying the complaint.
“D. Within 21 days of instituting an investigation upon the vote required by subdivision A of this rule, the [JIC] must serve on the judge to be investigated a full description of the conduct to be investigated and all information received, gathered, or possessed by the [JIC] tending to establish or to refute that the conduct occurred or that the investigation is appropriate and must serve on the judge copies of any and all documents, photographs, tape recordings, transcripts, notes, and other materials of any nature whatsoever tending to prove or to disprove the occurrence of the conduct to be investigated or the appropriateness of the investigation.
“E. Every six weeks after serving the disclosures, statements, and materials required by subdivision- D of this rule, the [JIC] must serve- on the judge being investigated or to be investigated copies of any and all materials of any nature whatsoever not already served upon him or her tending to establish that the conduct either did or did not occur or that the investigation is or is not still appropriate and shall serve upon the judge a full statement of whether the [JIC] then intends to continue the investigation.... ”

(Emphasis added.)

The veritable laundry list of mandatory, investigation-related duties cast upon the JIC by JIC Rule 6 follows upon, and results from, the filing of a verified complaint “by a member of the public or by a member of the [JIC] or the [JIC’s] staff.” JIC Rule 6.A. In other words, it is the filing of a complaint with the JIC that invokes the JIC’s jurisdiction. The complaints that initiated the JIC’s investigation of Judge Steensland were filed with the JIC before Judge Steensland retired.

“Once the jurisdiction of a court or administrative agency attaches, the general rule is that it will not be ousted by subsequent events.” In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978). The jurisdiction of the court or administrative agency, thus invoked, continues until the process is completed. See In re Marriage of Clark, 232 Ill.App.3d 342, 347, 173 IlLDec. 532, 597 N.E.2d 240, 243 (1992) (“It is clear' that once jurisdiction attaches in a cause, it continues until all issues of fact and law have been finally determined.”). Indeed, the COJ is constitutionally required to convene and to entertain the charges brought by the JIC. See In re Fuyat, 578 A.2d 1387, 1388-89 (R.I.1990) (“[A] judge ... who has removed himself or herself from judicial office by resignation [during the pendency of an investigation commenced by the ‘Commission on Judicial Tenure and Discipline’ (‘the commission’), but before the ‘institution of formal proceedings,’] is not by that fact immune from action by the commission, which may recommend some sanction other than removal.”). In short, we hold that Judge Steensland’s retirement during the JIC’s pending investigation of the complaints filed against him did not deprive the JIC or the COJ of jurisdiction to adjudicate the charges in the complaint.

B. Condonation

“Simply stated, the ‘condonation theory1 is that re-election to an office operates as a condonation of the officer’s conduct during the prior term.” Parker v. State, 333 So.2d 806, 808 (Ala.1976). According to Judge Steensland, the COJ considered evidence of conduct that occurred during his prior terms of office and, in doing so, ran afoul of this doctrine.

The condonation doctrine was the topic of prolonged discussion between the parties before the COJ. During one such discussion, Judge Steensland’s counsel stated:

“[The JIC has] got charges here where [Judge Steensland] is accused of doing— taking some action.... Some of them, they say, occurred between 2004 and 2006. Some of them, they say, beginning in 1996. He’s been on the bench— he got elected first, I think, in '88; took office in January of '89. And so he is very limited, if at all — which we say they’ve got no jurisdiction over the retirement part of it — but if at all, they’re limited to what occurred from January 20, 2009, up until the rest of that term. And so any — we say all of it ought to be thrown out. We say you have no jurisdiction. But we’re not waiving that argument. If your Honor rules against us, all of it that’s before 2009 must come out under the well-settled law of Alabama. ...
“There is law that some evidence of things in prior terms could be admitted to show a pattern and practice, but it is not charged. Here they have charged it, and putting him on trial. And all of that should be struck. And if admitted, admitted to show pattern and practice.”

(Emphasis added.)

Subsequently, the chief judge of the COJ questioned counsel for the JIC as to the purpose of evidence of the pre-2009 conduct. Counsel for the JIC responded, in pertinent part:

“[When we talk about these acts prior to [2009], we’re also talking about the same conduct that occurred after the date that he was sworn into this term.... During [Stacie R.’s] case, she will testify, I anticipate, and another witness who was there who also has a complaint, who filed a complaint who was there that day. And about three or four other people will all testify that during the course of that day, the following things' were done: Handcuffs; severe sentence for somebody tried; vulgar language; demeaning language. All of these things that we have alleged that occurred prior to 2009, they were occurring ... when [Stacie RJ and [Julie M.] were in the courtroom. And we have alleged in these following counts a pattern and practice account where we’re going through these things....
“... We are showing pattern and practice. The pattern and practice did not start after his term here. It started long before his term here, and it continued into his term.”

(Emphasis added.)

According to the JIC, “[t]he COJ found that the judge had a pattern and practice of using ‘profanity’ and ‘yellfing’] at litigants from the bench.” The JIC’s brief, at 8 (emphasis added). Indeed, one examines the COJ’s order in vain for proof that the COJ used pre-2009 conduct as anything but pattern-and-practice evidence. On the contrary, the order is expressly based on the conduct charged in the four complaints filed with the JIC by Stacie R., Julie M., Natasha H., and Cynthia M. — that is, counts 1 through 4, which include charges 1 through 35 — all of which occurred within Judge Steensland’s last term of office.

“It is ... well settled ‘that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. “A party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court.’ ” ’ Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003) (quoting Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992), quoting in turn Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008).

In his argument before the COJ, Judge Steensland’s counsel condoned the use of pre-2009 conduct to show a pattern and practice. For all that appears, that is precisely the purpose for which that evidence was used. Thus, to the extent the COJ considered the conduct at all, the error — if any — was invited error. Consequently, reversal of the COJ’s judgment cannot be predicated on evidence of Judge Steensland’s alleged pre-2009 conduct.

III. Conclusion

For the above-stated reasons, the COJ did not err in entering a judgment against Judge Steensland. That judgment is, therefore, affirmed.

AFFIRMED.

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

WISE, J., recuses herself.

      . In his dissenting opinion in Ex parte Alabama State Bar, Justice Lyons called upon the Court to amend Rule 1, which we promptly did. As amended, Rule 1(a)(2) provides: "Incumbent judges are subject to the jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar during their terms of office for misconduct occurring before they became judges.'' (Emphasis added.) The amendment of Rule 1(a)(2) effectively overruled the Court's holding in Alabama State Bar.

      . JIC Rule 6 was amended effective May 1, 2010. The amendment substantially rewrote Rule 6.

      . We leave for another day the question — not presented here — of the consequences of a judge’s retirement before a complaint is filed with the JIC.

      . It is no argument against the exercise of jurisdiction by the JIC and the COJ that the Alabama State Bar may also discipline former judges pursuant to Rule 1(a)(3), Ala. R. Disc. P. (“Former judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline.”). The fact that the Disciplinary Commission, the Disciplinary Board, and this Court do have jurisdiction over former judges does not imply the reverse, that is, that the JIC and the COJ do not have jurisdiction. On the contrary, if concurrent jurisdiction now exists over incumbent judges pursuant to Rule 1(a)(2), Ala. R. Disc. P., it is logically not precluded over former judges by Rule 1(a)(3).


author: PITTMAN, Judge. MOORE, Judge,

text:
    Robert Ford BURKETT v. Anne Winkler BURKETT.
    2090587.
    Court of Civil Appeals of Alabama.
    June 24, 2011.
    As Modified on Denial of Rehearing Aug. 19, 2011.
    Certiorari Denied Jan. 27, 2012 Alabama Supreme Court 1101426.

      Joan-Marie Dean, Huntsville, for appellant.
    Amy S. Creech of Rhodes & Creech, Huntsville, for appellee.
   PITTMAN, Judge.

Robert Ford Burkett (“the husband”) appeals from a judgment divorcing him from Anne Winkler Burkett (“the wife”) that, among other things, divided the parties’ marital property and assets, awarded primary physical custody of the parties’ children to the wife, and ordered the husband to pay child support and to maintain a $500,000 life-insurance policy for the benefit of the children.

The parties were married in 1991; two children were born during the marriage: a daughter, who was born in 1994 and a son, who was born in 1998. The husband had been self-employed as an insurance agent and an investment banker throughout the marriage; the evidence established that his gross monthly income had been $8,105.50 in 2007 and $3,666.17 in 2008. The wife had been employed by the Madison County Commission for most of the marriage; at the time of trial, the wife was serving as the county’s economic-development director and had earned a monthly gross income of $5,235.43 in 2007 and $5,470.54 in 2008.

In March 2007, the husband filed a complaint seeking, among other things, a divorce from the wife, an award of joint legal and physical custody of the children, an equitable division of the marital assets, and an allocation of the marital debts. The wife filed an answer; she also filed a counterclaim in which she sought primary physical custody of the children, an award of child support, an equitable division of the marital assets and allocation of the marital debts, and an award of attorney fees. The wife also requested that the trial court instruct the parties to split the household costs equally during the pen-dency of the divorce action.

A pendente lite order was entered in June 2007 that instructed the parties to maintain the status quo during the pen-dency of the litigation. In January 2008, the wife requested that the trial court appoint a special master to assess the value of the husband’s insurance agency and investment business. Following a hearing on the matter, in October 2008, the trial court appointed a special master who was instructed to determine both the “fair market value” and the “fair value” of the husband’s businesses for consideration at the divorce trial. Subsequently, the wife filed a motion seeking a contempt judgment against the husband for his alleged failure to maintain the status quo regarding household expenses pendente lite. Following a hearing in March 2009, the trial court modified the pendente lite order by ordering the parties to share the monthly household expenses on a pro rata basis. The order instructed the husband to deposit $1,437.08 monthly into a joint checking account, directed the wife to deposit $3,353.17 monthly into the same account, mandated that all monthly bills be paid from that account, and required that accurate records of that account be maintained.

The divorce trial was conducted between September 29 and October 1, 2009. During that ore tenus proceeding, the parties, the children’s paternal grandmother, and the parties’ teenaged daughter testified. In addition, John McKinney, a vocational evaluator, and Dr. Joan Kerr, a child psychologist, testified.

During the trial, the husband testified that he had first experienced concerns about the parties’ marriage during the daughter’s infancy. He stated that the wife would typically fly into hysterical rages, hitting him and throwing objects; he stated that, although those rages had occurred only about once each year for the first part of the marriage, the wife’s temper had become progressively worse until, by 2005, he reportedly could not tolerate her tantrums any longer and began planning to seek a divorce. The husband stated that one of his ongoing problems with the wife was the fact that he had been reared as a Methodist and that she was a member of the Christian Science Church, \yhich he considered to be a “strange” faith.

Another factor in the husband’s decision to seek a divorce was the wife’s allegedly deteriorating relationship with the daughter. The husband asserted that the wife had been abusive toward him and the daughter throughout the marriage; however, he admitted that the wife had never injured him physically. The husband contended that the daughter’s school problems had been caused by her deteriorating relationship with the wife. He stated that he could not tolerate the arguments between the wife and the daughter over schoolwork and curfews, and, based upon his belief that he had a better relationship with the daughter, the husband orally changed his custody request to seek an award of primary physical custody of the children.

The wife stated that she had been the primary caregiver for the children throughout the marriage. She also testified that she had been worried about the daughter for several years before finally taking the daughter to a child psychologist recommended by the husband, Dr. Kerr. Initially, the wife thought the daughter might have attention deficit disorder (“ADD”), but she learned that the daughter suffered from oppositional defiant disorder (“ODD”). That problem had caused the daughter to defy her teachers and to fail subjects in school because she would not complete her homework. The wife stated that, although she and the daughter had engaged in loud confrontations in the past, the daughter was presently learning to do what was expected in school and at home after receiving Dr. Kerr’s help. The wife reasserted at trial her request that she be awarded primary physical custody of the children.

The wife testified that she had tried to encourage the husband to find more lucrative employment, but she stated that he had resisted. She noted that, during discovery for the divorce, she had learned that the husband had paid his staff more than he paid himself from his business, and she stated that his unwillingness to support the family had disgusted her. She accused the husband of intentionally earning less than he could in order to force her to pay most, if not all, of the household expenses. The wife testified, and the husband admitted during cross-examination, that the husband had failed to comply with the trial court’s pendente lite order to pay one-third of the family’s living expenses before trial. The wife’s documentation that the husband owed $23,624.58 as reimbursement to her for not paying those household expenses was admitted into evidence without objection.

The children’s paternal grandmother testified that, during the marriage, she had regularly kept the children after school and had often provided supper for the whole family two nights a week. She stated that, although the daughter disobeyed the wife, the paternal grandmother had been better able to control the daughter’s behavior. In addition, the paternal grandmother stated that she believed that the daughter’s personality issues stemmed from her tempestuous relationship with the wife that dated back to the daughter’s early childhood. She said that she remembered several occasions when the wife had grabbed the daughter’s arm, digging her fingernails into the arm to get the daughter’s attention or to discipline the daughter. The paternal grandmother opined that the husband had exerted a more calming influence on the daughter and suggested that, because she was a retired schoolteacher, she could help the husband work through the daughter’s academic problems if he received primary physical custody of the children.

The daughter’s testimony was surprisingly mild in light of the husband’s contentions that the wife had physically and emotionally abused her. Essentially, the daughter related that the wife had never truly injured her, but had only scratched her arm with her fingernails and spanked her with a ruler. The daughter testified that when she misbehaved or performed poorly in school, the wife would customarily remove privileges or restrict her extracurricular activities rather than resort to corporal punishment. The daughter testified that the husband had made an agreement with her to give her certain privileges if she did her homework and performed well in school. However, the daughter stated, she was still not completing all of her homework and, at the time of trial, was failing several subjects. She also noted that the husband almost never had disciplined her, regardless of whether she had disobeyed his instructions. The daughter also testified that, although she knew both parents loved her, she would have more freedom and less structure if she were to live with the husband.

Dr. Kerr, the daughter’s counselor, testified that she had been hired by the wife to help diagnose and treat the daughter before the husband filed his divorce complaint. The wife specifically asked Dr. Kerr to help her improve her relationship with the daughter and to help the daughter improve her grades and performance in school. Dr. Kerr had ruled out ADD but had diagnosed the daughter with ODD and intermittent explosive disorder. Dr. Kerr noted that the daughter had a longstanding pattern of poor cooperation, defiance of rules, disregard for authority, hysterical outbursts, and temper tantrums. The daughter had a history of being aggressive with her teachers and other adults; in addition, she often verbally denigrated, and acted aggressively toward, her younger brother and her parents.

In reviewing the daughter’s two and one-half years of treatment, Dr. Kerr noted that the husband had continuously exhibited poor parenting techniques in dealing with the daughter’s problems; Dr. Kerr concluded that his refusal to follow recommended procedures had reinforced the daughter’s oppositional tendencies. Dr. Kerr testified that, historically, the husband and the paternal grandmother had allowed the daughter to act out and to engage in verbal and physical aggression without any attempt to discipline her, and had thereby made the wife’s parenting efforts more difficult. Dr. Kerr concluded that the husband’s inability to work together with the wife to set appropriate boundaries and to support the daughter’s mental-health treatment program had ultimately delayed the daughter’s recovery. Dr. Kerr opined that, if asked, the daughter would probably request to be placed in the custody of the husband because he would let her do whatever she wanted and would not give her the discipline or structure that she needed.

McKinney stated that he had been hired by the wife to evaluate the earning capability of the husband. McKinney noted that the husband was 50 years old, that he had earned a master’s degree in economics from Fordham University, and that he had been employed in the banking industry before opening his insurance agency in 1991. At the time of trial, the husband was also the sole owner of an investment company and served on the board of directors of a local bank. Based upon the husband’s education and professional experience, McKinney stated that he could earn between $40,000 and $42,000 annually working directly for a major insurance company. In fact, based on the husband’s years of experience in that industry, McKinney stated that he would more likely earn a salary in the range of $62,000 to $70,000 per year. Moreover, because of the husband’s management experience in the financial and investment industries, McKinney testified that the husband could earn between $90,000 and $113,000 annually in a management position with a local bank.

According to the special master’s valuation of the husband’s businesses, the fair value of the husband’s insurance agency was $500 and the fair value of his share of the investment firm was $170,000. The husband also jointly owned a commercial building with the paternal grandmother; that building housed his two businesses and had been appraised at a value of $520,000. The debt owed on that commercial building was approximately $139,000; thus, the husband’s share of the equity in that building was approximately $190,500 ($520,000 - $139,000 divided by ⅜). The wife asked that she be awarded one-half of the marital interest in those assets.

The wife testified that, although the marital residence had been appraised at $178,000, it needed repairs of approximately $20,000 before it could be placed on the market for sale. The parties still owed about $45,000 on that property at the time of trial. The wife asked that she be allowed to buy the husband’s interest in the marital residence so that she could continue raising the children in familiar surroundings.

In November 2009, the trial court entered a divorce judgment that awarded joint legal custody of the children to the parties but awarded primary physical custody to the wife. The husband was awarded standard visitation with the children and ordered to pay monthly child support in the amount of $660. The wife was instructed to maintain medical-insurance coverage on the children, and the parties were instructed to equally share any of the children’s uncovered health-related expenses. The husband was ordered to maintain life-insurance coverage of at least $500,000 listing the children as primary beneficiaries for as long as he was obligated to pay child support.

The judgment awarded the marital residence to the wife, ordered her to pay the husband $40,000 for his share of the equity in the residence, and ordered the husband to execute a warranty deed conveying his interest in the residence to the wife within 30 days. The husband was awarded 100% of his interest in both of his businesses and in the commercial property that housed his businesses. The husband and the wife were each awarded all interest in their various individual retirement accounts. The husband was awarded bank accounts opened in his own name and his businesses’ names, but the parties were ordered to equally divide the moneys held in their joint checking account and invested in their “whole-life” insurance policies. The wife was awarded one motor vehicle, and the husband was awarded the parties’ remaining four vehicles and boat. Each party was awarded a specific list of personal and household items. Each party was ordered to pay one-half of two specific credit-card debts, and each party was ordered to pay all the indebtedness on two other credit-card accounts.

Both parties filed postjudgment motions, and, following a hearing, the trial court amended the judgment to clarify which credit-card debts were to be paid individually and which were to be split equally between the parties. In addition, the husband was specifically awarded the parties’ Kawasaki four-wheel all-terrain vehicle, and the wife was awarded four specific items of marital property. The wife was also instructed to refinance the marital residence by obtaining a new loan solely in her name and to hold the husband harmless as to any remaining debt secured by that property. The husband, on appeal, challenges the child-custody award, the marital-property division, and the requirement to maintain $500,000 in life insurance during the children’s minority.

When appellate courts review a child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: “ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal.’ ” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). “This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.... ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).” Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

The husband summarizes in his brief to this court the testimony that, he says, supports his contention that the wife had abused the daughter and had been the underlying cause of daughter’s mental-health issues. He also points out that the daughter had expressed a desire to live with the husband. The problem with the husband’s contention is that there was equally probative testimony indicating that the daughter’s mental-health issues had been exacerbated by the husband’s failure to discipline the daughter and to support the wife in setting academic goals. Rather than belabor the conflicting testimony, we simply acknowledge that “[t]he trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996); see also Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). Factual determinations based on conflicting evidence are within the sound discretion of the trial court. See C.B.B. v. J.S.D., 831 So.2d 620, 622 (Ala. Civ.App.2002). Based upon the record presented, we cannot conclude that the trial court erred in its determination to award primary physical custody of the children to the wife.

The husband also asserts that the trial court inequitably divided the parties’ marital assets.

“The trial court is afforded a wide degree of discretion in dividing the marital assets of the parties upon divorce. Moody v. Moody, 641 So.2d 818 (Ala.Civ.App.1994). The only limitation on that discretion is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 628 (Ala.Civ.App.1993). In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their age and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The property division made by the trial court will not be set aside on appeal absent a palpable abuse of that discretion. Id.”

Cantrell v. Cantrell, 773 So.2d 487, 489-90 (Ala.Civ.App.2000); see also Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003).

Although the husband contends that the trial court’s marital-property division was erroneous, we note the statement in Cantrell to the effect that the trial court has the discretion to consider numerous factors when dividing marital property. The husband makes much of the overall monetary percentages of marital property awarded in the divorce judgment; in focusing solely on the relative monetary percentages each party received, he fails to perceive that the trial court awarded him more than he requested and awarded the wife much less than what she had sought. The husband contends that the property division was inequitable because the wife was awarded, by his calculations, approximately 3/4 to 4/5 of the marital estate. However, the evidence from the lengthy trial indicated that the wife had been the family’s primary wage earner and had provided between 2/3 and 3/4 of the funds expended by the parties to acquire the marital assets. In addition, the wife adduced evidence indicating that the husband had systematically underpaid himself, apparently doing so in order to place a greater burden of defraying the household expenses on the wife.

Moreover, the husband was awarded all of his marital interest in the commercial building he jointly owns with the paternal grandmother, his personal retirement accounts, and the equity in his two businesses. A simple review of the numbers does not support the husband’s contention that the division of assets unfairly favored the wife. Neither party requested any portion of the other party’s retirement accounts, so (using the husband’s figures and removing both parties’ retirement accounts) the following allocation of assets is revealed: $258,760.83 to the wife and $261,995.45 to the husband. Under the circumstances presented, that nearly equal division of the parties’ remaining assets cannot be considered an erroneous property division. We conclude that the husband’s contention as to this issue is without merit.

The husband also asserts that the trial court erred in ordering him to “secure” his child-support obligation by acquiring life-insurance coverage in the amount of $500,000. The Alabama Supreme Court has previously stated that “[m]inor children are commonly designated as beneficiaries of life insurance policies as ‘an aspect of child support’ pursuant to an order of divorce.” Whitten v. Whitten, 592 So.2d 183, 186 n. 4 (Ala.1991). “Whether to order a party to maintain a life insurance policy for the benefit of minor children is within the discretion of the trial court.” Kirkland v. Kirkland, 860 So.2d 1283, 1288 (Ala.Civ.App.2003).

The thrust of the husband’s assertion regarding the insurance requirement is that, in his view, his total child-support obligation cannot possibly be more than $61,000. However, the trial court heard evidence tending to show that the husband has had a history of not meeting his financial obligations to and for the family and may well have concluded that the total amount that the husband will eventually owe will be enhanced by pre- and post-judgment interest. In addition, the younger child will not reach the age of majority until July 2017, and, during the intervening years, the husband’s child-support obligation is upwardly modifiable based upon the usual considerations. Moreover, the husband may be required to pay postmi-nority educational support after the children reach the age of majority, and obtaining life insurance to secure those payments at age 58 may be difficult, if not impossible.

Although we might not have decided to levy a similar insurance requirement on the husband, nothing in the judgment prevents the husband from naming the children as beneficiaries on the existing insurance policies awarded to him in the divorce. Although the record contains evidence of the present value of the parties’ whole-life insurance policies, we do not have the face value of those policies; it is likely that the face value of the preexisting policies awarded to the husband equal or exceed the amount ordered by the judgment. Because the husband has not presented record error as to this issue, we cannot conclude that the trial court committed reversible error by ordering the husband to secure his child-support obligation with $500,000 in life-insurance coverage.

The trial court’s judgment is due to be affirmed. In addition, the wife asks this court for an award of $5,000 in attorney fees for defending the trial court’s judgment (as to which, she claims, the law is well settled regarding each issue raised). The wife’s request for an attorney-fee award on appeal is granted in the amount of $2,500.

affirmed:

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

MOORE, J., concurs in part and dissents in part, with writing, which BRYAN, J., joins.

MOORE, Judge,

concurring in part and dissenting in part.

I concur with the majority’s affirmance of the trial court’s judgment to the extent that it awarded primary physical custody of the children to the wife and divided the parties’ property. I respectfully dissent, however, as to the majority’s affirmance of the trial court’s judgment to the extent that it requires the husband to “maintain life insurance insuring his life and providing death benefits in an amount not less than $500,000.00 with the parties’ minor children being designated as the primary beneficiaries, for so long as child support is payable hereunder.”

“Generally, whether to require a parent to maintain a life insurance policy for the benefit of his [or her] minor children is within the sound discretion of the trial court.” Goetsch v. Goetsch, 990 So.2d 403, 412 (Ala.Civ.App.2008). As this court has previously held, the reason for “requiring supporting parents to maintain life insurance for the benefit of their children [is,] .... quite obviously, ... to insure that minor children will receive support in the event the supporting parent dies.” Jordan v. Jordan, 688 So.2d 839, 842 (Ala.Civ.App.1997). In the present case, as the husband correctly points out, the total amount of child support he will be required to pay under the divorce judgment is $60,720; however, the divorce judgment requires the husband to maintain a life-insurance policy on his life in the amount of $500,000, an amount more than 8 times greater than the total amount of child support he is required to pay under the divorce judgment. Although interest would accrue on any child-support payments the husband might fail to make, it is highly improbable that any accrued interest would total $439,280. Further, although the main opinion asserts that the husband’s child-support obligation may be modified in a future action or that he may be required to pay postminority support, I conclude that to require the husband to secure an obligation resulting from a potential judgment in a future action that has not yet been filed is beyond speculative. Even if the trial court had considered that possibility, it would have exceeded its discretion in doing so. See Treusdell v. Treusdell, 671 So.2d 699, 701 (Ala.Civ.App.1995) (“[T]he matter of child support is discretionary, and in ruling on that matter, the court must consider the needs of the child and the parent’s present ability to meet those needs, without speculation regarding the future.” (emphasis added)); Tatum v. Carrell, 897 So.2d 313, 324 (Ala.Civ.App.2004) (“A judgment where there is no evidence, other than speculation, must be reversed.”); and Gazipura v. Gazipura, 652 So.2d 266, 268 (Ala.Civ.App.1994) (“The mere possibility that the husband may become unemployed in the future is speculative and should not be effective in deviating from the [child-support] guidelines.”).

Based on the foregoing, I conclude that such an extreme disparity between the husband’s actual child-support obligation and the amount of life insurance he is required to maintain in order to secure that obligation is an abuse of the trial court’s discretion. Accordingly, I would reverse the trial court’s judgment to the extent that it requires the husband to maintain a $500,000 life-insurance policy on his life for the benefit of the children.

BRYAN, J., concurs.

      . Interestingly, at trial, the daughter actually opined that she would prefer not to live with either parent.

      . These figures were computed by removing the wife's state retirement account, her two individual retirement accounts, and the husband's individual retirement account from the figures presented in the husband's appellate brief.

      . We note that the husband does not assert that the trial court's life-insurance mandate is an improper deviation from the requirements of Rule 32(A), Ala. R. Jud. Admin.

      . The husband’s child-support obligation commenced on December 1, 2009. The younger child will reach the age of majority on July 16, 2017. Thus, the husband will be required to make 92 monthly payments of $660, which total $60,720.