text:
    Nathan SMITH and Dale D. Smith v. H. Buford COWART; Debbie Cowart d/b/a DBM Enterprises; and Herman Cowart.
    1090048.
    Supreme Court of Alabama.
    Feb. 25, 2011.

      Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; and Frank M. Wilson, Montgomery, for appellants.
    James B. Douglas, Jr., of McNeal & Douglas, L.L.C., Auburn, for appellees.
   MURDOCK, Justice.

Nathan Smith and Dale D. Smith appeal from a judgment entered by the Macon Circuit Court in their action against H. Buford Cowart, Debbie Cowart d/b/a DBM Enterprises, and Herman Cowart (collectively “the Cowarts”). We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

In 1994, the Smiths and Buford Cowart formed Heartland Products, Inc. (“Heartland”); Heartland engaged in a landscaping business based in Macon County. The Smiths owned 49 percent of the corporation; Buford Cowart owned 51 percent of the corporation. The Smiths alleged that Heartland owned 13.7 acres of real property and various pieces of equipment — including two forklifts, a loader, a bark screener, and a tub grinder (“the equipment”) — used in the operation of its business. The Cowarts counter that they, not Heartland, owned most of the equipment.

The Smiths claim that they were passive investors in Heartland and that Buford Cowart ran the day-to-day operations of the business. The parties agree that Heartland obtained business loans from SouthTrust Bank in exchange for which SouthTrust obtained a security interest in property owned by Heartland. The parties disagree as to whether the property in which SouthTrust obtained a security interest included the equipment. The Smiths claim that they were the guarantors on the loans, while the Cowarts claim that Buford Cowart also was a guarantor on the loans.

The Smiths claim that Buford Cowart caused Heartland to default on its business loans with SouthTrust, which forced the Smiths to make payments on those loans. The Smiths eventually paid off the loans, and SouthTrust assigned its rights and interests in Heartland’s property resulting from the loans to the Smiths. The Smiths claim that the assignment by SouthTrust gave them ownership rights in the equip-merit; the Cowarts dispute this claim. The Cowarts assert that the loans had no connection to the equipment because, according to them, Heartland did not own the equipment.

On May 6, 1999, the Smiths filed a complaint in the Macon Circuit Court against the Cowarts. The gravamen of the complaint was that Buford Cowart had depleted the resources of Heartland without the Smiths’ knowledge for the benefit of businesses owned by Buford Cowart’s wife Debbie Cowart and by Buford Cowart’s father Herman Cowart. The complaint included claims of breach of fiduciary duty, conversion, and dissolution of the corporation. Pertinent to this appeal, the Smiths alleged that Buford Cowart fraudulently transferred some of the equipment to his wife, to be used in DBM Enterprises, a competing landscaping business operated by his wife, and that he diverted some of the equipment to his father, to be used in Heartland Trucking, a business operated by his father.

On June 21, 1999, the Smiths filed a motion for a writ of seizure of the equipment pursuant to Rule 64, Ala. R. Civ. P., as well as for a preliminary injunction to prevent the Cowarts from using the equipment. Nathan Smith filed an affidavit with the motion in which he listed the items of equipment at issue and stated that it was his “belief’ that Heartland owned the equipment. Smith also averred that the equipment had a value of $113,800. The Smiths filed a $250,000 bond with the motion; United States Fidelity & Guaranty Company (“USF & G”) was named in the bond as a surety.

On June 24,1999, the trial court issued a writ of seizure in which it ordered the sheriff of Lee County to attach all the equipment found at a particular address in Opelika. The order also required the Co-warts to return to Heartland all the equipment that was not seized by the sheriff. Consistent with Rule 64(b)(2)(B), Ala. R. Civ. P., the order stated that the Cowarts were entitled to a prejudgment hearing on the issue of dissolution of the writ of seizure if a written request for such a hearing was served on the Smiths’ counsel within five days of the attachment of the property. The record does not reflect, and the Cowarts do not contend, that the Cowarts made a written request for dissolution of the writ of seizure.

The Smiths state that they received only one item of equipment, a forklift, as a result of the writ of seizure. The Cowarts do not dispute this assertion, though they contend that because of the injunction they could not and did not use any of the equipment until the writ of seizure eventually was dissolved.

On August 13, 1999, Herman Cowart answered the Smiths’ complaint. He also stated a counterclaim of conversion against the Smiths, alleging that they had deprived him of one flashlight, one tarp, and several thousand “yards” of mulch. On December 17, 1999, Buford Cowart and Debbie Cowart jointly answered the Smiths’ complaint. They also filed counterclaims against the Smiths. Debbie Co-wart alleged that she had loaned Heartland $17,000, for which she had not been repaid. Buford Cowart alleged that the Smiths had promised to assist him in running Heartland but that the Smiths repeatedly refused to provide the help they had promised. He also alleged that he had performed work for Heartland between 1994 and 1998 for which he had not been paid, labor he valued at $97,000.

The record reflects that, in April 2000, the Smiths propounded to the Cowarts interrogatories and requests for the production of documents. When the Cowarts apparently did not reply to those discovery requests, the Smiths filed a motion to compel discovery. The record does not reflect that the trial court ruled upon the Smiths’ motion. In their brief, the Cowarts’ counsel states that “the Cowarts provided the Smiths with all company documents in their possession, which numbered in the thousands.”

For their part, the Cowarts contend in their brief to this Court that, between May 2001 and December 2008, their counsel sent notices scheduling the depositions of the Smiths on four different occasions but that the Smiths failed to appear on each such occasion. The Smiths do not directly deny this assertion; instead, they observe that the record does not contain any notices of deposition.

On January 4, 2001, the Smiths filed a motion to set the case for trial, and the trial court entered an order scheduling the trial for February 22, 2001. The parties subsequently filed a joint motion to continue, which the trial court granted. On April 4, 2002, the Smiths’ counsel informed the trial court that his address had changed. On November 12, 2002, the Co-warts filed a motion to set the case for trial; the trial court scheduled the trial for February 25, 2003. The case was not tried on that date. On April 7, 2003, the Smiths’ counsel informed the trial court that his address again had changed. The trial court next scheduled the case to be tried on May 1, 2003. The case was not tried on that date. The trial court scheduled the case for trial on August 5, 2003. The case was not tried on that date. The trial court scheduled the case for trial on November 20, 2003. The Cowarts’ counsel subsequently requested that the case be continued. On August 9, 2005, the Cowarts filed another motion to set the case for trial. The Cowarts served the motion on the Smiths’ counsel at an address different from the last address the Smiths’ counsel had registered with the trial court. The trial court scheduled the trial for November 3, 2005. The trial was not held on that date.

On February 15, 2008, the Cowarts filed another motion to set the case for trial. The Cowarts served the motion on the Smiths’ counsel at the address the Smiths’ counsel had registered with the trial court the first time he notified the court of his change of address. The trial court set the case for trial on May 12, 2008, and ordered that a copy of the order be sent to counsel for both parties. A notation in the case-action summary states that the case had been set for trial for May 12, 2008.

On May 12, 2008, the Cowarts and their counsel appeared for trial, but the Smiths and their counsel did not. On that date, the trial court entered an order that stated, in pertinent part:

“On May 6, 1999, the [Smiths] filed this action against Defendants H. Buford Cowart, Debbie Cowart, d/b/a DBM Enterprises, and Herman B. Cowart. On May 12, 2008, the Court set this matter for Trial. The [Smiths] failed to appear. The Court further finds that the [Smiths] have failed to prosecute their claims. Therefore, it is hereby:
“ORDERED, ADJUDGED AND DECREED by the Court that all of the [Smiths’] claims against Defendants H. Buford Cowart, Debbie Cowart, d/b/a DBM Enterprises, and Herman B. Co-wart are hereby dismissed with prejudice.”

The Cowarts’ counterclaims against the Smiths were not adjudicated by the trial court’s order and remained pending before the trial court.

In their brief to this Court, the Cowarts state that also on May 12, 2008, they made an oral motion for forfeiture of the surety bond the Smiths had posted in conjunction with their motion for a writ of seizure filed on June 21, 1999. On June 19, 2008, the Cowarts filed a written motion to the same effect. In this motion, the Cowarts asserted that most of the items of equipment listed in the motion for a writ of seizure actually were owned by the Cowarts personally and were not owned by Heartland. Thus, the Cowarts contended, the seizure of the equipment had been wrongful and they had been wrongfully enjoined from using the equipment; they requested a forfeiture of the bond as a result. In support of the motion, Buford Cowart filed an affidavit in which he stated that most of the items of equipment were owned by the Cowarts. The Cowarts did not serve the written motion on the Smiths or on USF & G.

The trial court set the motion for a hearing on June 23, 2008. The case-action summary, however, does not contain a notation to this effect.

On June 23, 2008, the Cowarts and their counsel appeared for the hearing and presented evidence and argument to the trial court; the Smiths and their counsel did not appear. Based on the evidence presented by the Cowarts, the trial court issued an order in which it found, among other things, that the seizure and injunction obtained by the Smiths had been wrongful:

“On May 6, 1999, the [Smiths] filed this action against Defendants H. Buford Cowart, Debbie Cowart, d/b/a DBM Enterprises, and Herman B. Cowart. On July 21, 1999, the [Smiths] filed a Motion for a Writ of Seizure regarding numerous items of equipment that the [Smiths] claimed were being improperly held by the [Cowarts]. Furthermore, [the Smiths] posted a bond in the amount of $250,000.00 through USF & G.
“On June 23, 2008, the Court heard evidence in this matter wherein most of the items of equipment belonged to the [Cowarts] and the Motion for Writ of Seizure, filed by the [Smiths] was not well taken. The Court finds that the [Cowarts] were deprived of the use of this equipment wrongfully. The Court farther finds that the [Smiths] were on notice that said equipment should not have been the basis for their Motion for Writ of Seizure. The Court further finds that the [Cowarts] were damaged in excess of the $250,000.00 bond posted by the [Smiths]. It is therefore:
“ORDERED, ADJUDGED AND DECREED by the Court that the bond posted by the [Smiths] is hereby forfeited.[] The surety on said bond is Ordered to forthwith pay the sum of $250,000.00 to the Circuit Clerk of Macon County; the Clerk is Ordered to hold said proceeds pending further Orders from the Court.
“This Court’s Order of June 24, 1999, Ordering the Writ of Seizure and Injunction is hereby vacated.”

(Emphasis added.)

On August 4, 2008, the Smiths’ counsel filed a motion purportedly pursuant to Rule 60(b), Ala. R. Civ. P., which he styled as a “Motion to Set Aside,” that requested that the trial court set aside its order of June 28, 2008. In the motion, the Smiths’ counsel claimed that he “has never been served by the [Cowarts] of any Motions, specifically Motions pertaining to the Surety Bond posted in this case. Furthermore, the below-signed counsel received no notice of a hearing regarding same.” The Smiths’ counsel averred that he learned about the trial court’s June 23, 2008, order through “an inquiry from [USF & G].” He contended that the June 23, 2008, order should be set aside because, among other things, the Smiths had not been notified of the hearing on the Cowarts’ forfeiture motion.

On April 8, 2009, the trial court held a hearing on the Smiths’ motion to set aside the June 23, 2008, order. On April 22, 2009, the trial court entered an order denying the Smiths’ motion. In pertinent part, the trial court’s order provided:

“Based on the Court’s review of the record, the [Cowarts] moved that this case be set for trial on February 15, 2008, indicating that this matter had been pending for nine years, and the [Smiths] had failed to prosecute their claims. The Court set this matter for trial for May 12, 2008. The clerk’s record indicates that all parties received notice of the trial setting, pursuant to the Court’s order. On May 12, 2008, the case was called for trial, and the [Co-warts] were present and ready for trial, while neither the [Smiths] nor their counsel were present. The Court dismissed the [Smiths’] claims and re-set the matter of the forfeiture of the bond for June 23, 2008. On June 23, 2008, the case was again called, [and] the [Co-warts] and their counsel were present, while neither the [Smiths] nor their counsel were present. The Court, after reviewing the affidavits submitted by the [Cowarts], entered its order of forfeiture of the bond on June 23, 2008.
“Based on the foregoing, the Court finds that the [Smiths] had notice of the trial setting of this matter and failed to appear. The Court finds further that the [Smiths] had notice of this Court’s order dismissing their claims on May 12, 2008, and took no action. The Court finds further that the [Smiths] are not entitled to the relief they are now seeking under Rule 60(b) of the Alabama Rules of Civil Procedure.... ”

In May 2009, the Smiths’ original counsel filed with the trial court a notice of withdrawal from his representation of the Smiths. Subsequently, new counsel for the Smiths filed a notice of appearance in the trial court. On June 1, 2009, the Smiths’ new counsel filed what was styled a “Motion to Alter, Vacate or Amend Pursuant to Rule 59, Alabama Rules of Civil Procedure, or In the Alternative, for Relief from Judgment or Order Pursuant to Rule 60, Alabama Rules of Civil Procedure.” In the motion, the Smiths requested that the trial court vacate its orders of May 12, 2008, June 23, 2008, and April 22, 2009. Among other things, the Smiths asserted through their new counsel that their previous counsel did not receive notice of either the May 12, 2008, trial of the Smiths’ claims or the June 23, 2008, hearing on the Cowarts’ motion for forfeiture of the surety bond and, therefore, that the orders of the trial court should be vacated. The Smiths contended, among other things, that the trial court’s May 12, 2008, order dismissing the Smiths’ claims for lack of prosecution “resulted from the mistake, inadvertence or excusable neglect of the Smiths’ then-counsel.” The motion further stated that failure to set aside the orders of the trial court would violate the Smiths’ right to due process.

On June 7, 2009, the Smiths filed a notice of appeal (case no. 1081095) of the trial court’s April 22, 2009, order denying the Smiths’ motion to vacate the trial court’s June 23, 2008, order requiring forfeiture of the surety bond. On June 29, 2009, this Court, by order, remanded the action to the trial court because it appeared that all claims — in particular the Cowarts’ counterclaims — had not been adjudicated and that, therefore, the Smiths had appealed from a nonfinal judgment. The June 29, 2009, order stated that if the trial court did not adjudicate the remaining claims or certify the April 22, 2009, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., this Court would dismiss the appeal. On July 17, 2009, this Court dismissed the Smiths’ appeal because the trial court had not entered a final judgment on the matter.

On August 3, 2009, the trial court held a hearing. On August 26, 2009, the trial court entered an order in which it dismissed the Cowarts’ counterclaims with prejudice upon oral motion of the Cowarts. The trial court’s order explicitly stated that “[t]his order will be a final judgment of all claims in this matter, as all parties’ claims have now been adjudicated.” The court simultaneously denied the Smiths’ June 1, 2009, motion.

On October 1, 2009, the Smiths filed the present appeal from the trial court’s August 26, 2009, order.

II. Standard of Review

The parties disagree concerning the standard of review to be applied in this appeal. The disagreement stems from the Cowarts’ contention that the Smiths are appealing from the denial of the Rule 60(b), Ala. R. Civ. P., aspect of the Smiths’ June 1, 2009, motion for relief from judgment.

As indicated by its title, the Smiths’ June 1, 2009, motion purported to seek relief from the trial court under both Rule 59 and Rule 60, Ala. R. Civ. P. We also note that the motion was filed before the entry of a final judgment by the trial court on August 26, 2009. Despite having thus been filed prematurely, i.e., before the entry of a final judgment, the motion ripened for consideration by the trial court simultaneously with that court’s entry of a final judgment on August 26. See Dubose v. Dubose, 964 So.2d 42, 45 (Ala.Civ.App. 2007) (holding that a prematurely filed motion under Rule 60(b) ripened for the trial court’s consideration upon the trial court’s entry of a final judgment); Ex parte Lang, 500 So.2d 3, 5 (Ala.1986) (to same effect); and Melvin v. Loats, 23 So.3d 666, 667 (Ala.Civ.App.2009) (holding that a prematurely filed motion for a new trial under Rule 59 ripened for the trial court’s consideration upon the trial court’s entry of a final judgment).

The fact that the Smiths’ June 1, 2009, motion ripened for the trial court’s consideration, however, does not mean that the trial court had before it a proper request for relief under the Rule 60(b) aspect of that motion. This Court recently explained in Ex parte Haynes, 58 So.3d 761 (Ala.2010):

“ ‘The Alabama Rules of Civil Procedure do not contemplate the filing of a Rule 60(b) motion during the pen-dency of a Rule 55(c) motion. But while the Rules do not contemplate it, they do not preclude it, either. Under Rule 59.1, the Rule 55(c) motion was denied as a matter of law on November 26, 1985 (90 days after August 28, 1985); upon that denial, the default judgment of August 12 became “final” within the contemplation of Rule 60(b) — “[o]n motion ... the court may relieve a party ... from a final judgment” — and the court was free to consider the Rule 60(b) motion, which had been theretofore premature. We consider that the Rule 60(b) motion was quickened and became a pending motion as of November 27, 1985, without the necessity of a refiling. Thus, the court had jurisdiction of that motion at the time of its order granting the motion on December 3,1985.’
“[Ex parte Lang, 500 So.2d 3, 4-5 (Ala.1986).]
“Lang involved successive Rule 55(c) and Rule 60(b) motions, but as the defendants observe, this Court subsequently allowed an alternative Rule 55(c) and Rule 60(b) motion in Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989). As the Court of Civil Appeals has succinctly explained:
“ ‘[Wjhile it frowns upon the practice, Alabama law allows a party to join a request for relief from judgment under Rule 60(b) with a request for a post-judgment remedy affected by Rule 59.1’s 90-day “automatic denial.” See Ex parte Vaughan, 539 So.2d 1060 (Ala.1989). In Vaughan, our Supreme Court considered the propriety of a motion seeking an order pursuant to Rule 55(c), Ala. R. Civ. P., setting aside a default judgment and alternatively seeking relief from the judgment pursuant to Rule 60(b). Relying upon its earlier opinion in Ex parte Lang, 500 So.2d 3, 5 (Ala.1986), the Vaughan court concluded that such a motion seeking alternative relief was not precluded by the Rules of Civil Procedure, although “the better practice is to file a Rule 60(b) motion only when there is a final judgment in the case.” 539 So.2d at 1061.’
“Ex parte Gamble, 709 So.2d 67, 70 (Ala.Civ.App.1998).
“The problem with the defendants’ argument is that in the motion filed here, no distinction is made between the grounds for relief under Rule 55(c) and those for relief under Rule 60(b). The defendants’ motion makes no mention of Rule 60(b), but, more importantly, in order plausibly to be considered a viable Rule 60(b) motion it must ask for relief on grounds that amount to more than a request for a mere reconsideration of the denial of the defendants’ original Rule 55 motion. Here, the sole ground for relief stated in the motion was the defendants’ attorney’s ‘inadvertence’ and ‘excusable neglect.’ Because there existed nothing in the motion to distinguish the Rule 55(c) motion from the purported Rule 60(b) motion, any Rule 60(b) aspect to the motion would simply constitute a motion to ‘reconsider’ the Rule 55(c) motion.
“In McIntyre v. Satch Realty, Inc., 961 So.2d 135, 138-39 (Ala.Civ.App.2006), the Court of Civil Appeals stated:
“‘Although McIntyre and 4M’s Rule 60(b) motion provided more factual detail than their previously denied Rule 55(c) motion had and although their Rule 60(b) motion actually explained the allegedly meritorious defenses to which they had merely alluded in their previous motion, “the relief sought reveals that [McIntyre and 4M were] simply attempting to have a second review of the [default] judgment and to have the trial court reconsider its previous denial of [their] post-judgment motion.” Foster v. Foster, 636 So.2d 467, 468 (Ala.Civ.App.1994). Rule 60(b), however, cannot serve as a basis for a motion that, in effect, seeks a reconsideration of matters already considered by the trial court in a previous postjudgment motion when the facts alleged in the Rule 60(b) motion “were known by the moving party at the time of his original [postjudgment] motion. Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985). Such a Rule 60(b) motion, and a subsequent appeal of the denial of such a motion, cannot be used as a substitute for an appeal of the trial court’s original judgment. See, e.g., Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001) (“Alabama precedent is clear that a Rule 60(b) motion may not be used to seek reconsideration of a trial court’s denial of a postjudgment motion, nor are Rule 60(b) motions substitutes for appeal.”); and Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.1977) (having failed to obtain review by appeal following denial of his postjudgment motion for a new trial, the plaintiff may not obtain review pursuant to the filing of a Rule 60(b) motion, because that rule does not provide a substitute for an appeal).’
“(Emphasis added.) See also Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985) (stating that ‘[w]here the facts alleged in the motion to reconsider were known by the moving party at the time of his original motion, Rule 60(b) does not authorize a motion to reconsider’); Brown v. Martin, 394 So.2d 375, 377 (Ala.Civ.App.1980) (declining to treat appellant’s motion to reconsider an order denying his motion to set aside a default judgment as a motion for relief under either Rule 60(b)(1) or 60(b)(6) because the ‘motion was nothing more than a motion for the trial court to reconsider its previous order. Practically nothing different was presented by the motion to reconsider than was presented by the motion to set aside the default judgment.’).”

58 So.3d at 764-66 (footnotes omitted)

As in Haynes, the motion filed by the Smiths on June 1, 2009, contains no grounds for relief under Rule 60(b) that are distinguishable from the grounds contained in that motion for relief under Rule 59, and, thus, “any Rule 60(b) aspect to the motion would simply constitute a motion to ‘reconsider’ the Rule [59] motion.” 58 So.3d at 765. The trial court’s August 26, 2009, order is properly considered as one that constitutes a final judgment in this case and that simultaneously denies relief from that judgment under Rule 59. Consistent with Haynes, the appeal before us is properly considered as being from that final judgment.

Insofar as the trial court’s August 26, 2009, final judgment dismissed the Smith’s claims for lack of prosecution, we note that “ ‘[t]he dismissal of a civil action for want of prosecution because of the plaintiffs failure to appear at trial falls within the judicial discretion of a trial court and will not be reversed upon an appeal except for an abusive use of that discretionary power.’ ” Hollander v. Nance, 888 So.2d 1275, 1277-78 (Ala.Civ.App.2004) (quoting Thompson v. McQuagge, 464 So.2d 105, 106 (Ala.Civ.App.1985)). Insofar as the trial court’s final judgment finding the seizure of equipment and the enjoining of the Co-warts to have been wrongful, and accordingly ordering the forfeiture of the bond posted by the Smiths, the issue presented is whether the Smiths were deprived of due process in relation to the entry of the judgment because they did not receive notice and an opportunity to be heard. As presented in this case, the question turns on the proper application of legal principles to undisputed facts and is reviewed by this court de novo. See, e.g., Ex parte Soleyn, 33 So.3d 584, 587 (Ala.2009) (stating that “it is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo”).

III. Analysis

A. Dismissal of the Smiths’ Claims

Rule 41(b), Ala. R. Civ. P., provides:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

The Smiths argue that, although a trial court has the power to dismiss a plaintiffs action for failure to prosecute, such a sanction is a severe one and should not be employed merely for a prolonged period of inactivity by the plaintiff. Indeed, this Court has stated that, “since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations” and that, as a result, “appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside.” Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978).

This Court also has stated, however:

“Although dismissal with prejudice is a harsh sanction that should be used only in extreme circumstances, there nevertheless comes a point in every action when the interest of the trial court in controlling its calendar and its interest in avoiding risk to the defendant outweigh the interest in disposing of litigation on the merits.”

Henderson v. G & G Corp., 582 So.2d 529, 531 (Ala.1991). This Court also has observed that dismissal of a plaintiffs action under Rule 41(b), Ala. R. Civ. P.,

“is warranted where there is a ‘clear record of delay, willful default or contumacious conduct by the plaintiff.’ Selby v. Money, 403 So.2d 218, 220 (Ala.1981). Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noneompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court.”

Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 341 (Ala.1991).

The Smiths contend that there is no evidence of intentional delay or contumacious conduct in this case. The only evidence is that the Smiths and their counsel failed to appear for the trial setting of May 12, 2008, and that their failure was simply due to the fact that the Smiths’ counsel did not receive notice of either the Cowarts’ motion to set the case for trial or the trial court’s order setting the case for trial on that date. The Smiths argue that, at most, this constitutes excusable neglect by their previous counsel that did not warrant the “harsh sanction” of dismissal of their claims.

In their brief to this Court, the Cowarts state that on no less than four of the six occasions on which this case was rescheduled for trial before the final setting of May 12, 2008, the Cowarts and their counsel appeared in court, but the Smiths and their counsel failed to appear. As noted in the rendition of the facts, the Cowarts also charge that the Smiths failed to appear for scheduled depositions four separate times. The Smiths do not directly deny either of these charges. Instead, they state that the record fails to support these claims.

As to the Cowarts’ assertions regarding the Smiths’ failure to appear for trial settings on four occasions before the May 12, 2008, hearing, the Cowarts initially made this claim in the trial court in their response in opposition to the Smiths’ June 1, 2009, motion to set aside the trial court’s previous orders. The Smiths did not dispute this claim before the trial court, and, as indicated, they do not directly deny it before this Court. The trial court expressly found in its May 12, 2008, order that the Smiths had “failed to prosecute their claims.”

With respect to the May 12, 2008, hearing, in particular, the trial court explicitly concluded in its April 22, 2009, order denying the August 4, 2008, motion filed by the Smiths’ previous counsel that “[t]he clerk’s record indicates that all parties received notice of the trial setting, pursuant to this Court’s order.” We find no evidence to the contrary in the record before us.

In addition, our review of the record reveals that the case-action summary contains an entry for February 15, 2008, that makes note of the filing of the Co-warts’ motion to set the case for trial. The case-action summary also contains an entry dated March 14, 2008, stating that the trial court had ordered that the case be set for trial on May 12, 2008.

“It is the prevailing rule in Alabama ‘that a litigant ... has responsibility for keeping track of his case and knowing its status.’ D. & J. Mineral & Mining, Inc. v. Wilson, 456 So.2d 1099, 1100 (Ala.Civ.App.1984). Therefore, a trial court ‘owes no duty to notify a party of the setting of a case or to continue a case because of the absence of a party....’ D. & J. Mineral, 456 So.2d at 1100-01.”

Burleson v. Burleson, 19 So.3d 233, 239 (Ala.Civ.App.2009).

The Smiths’ action had been pending in the trial court for nine years before that court entered its order of dismissal. The case-action summary indicates that the action languished in the trial court for up to eight years without any activity by the Smiths. Henderson, 582 So.2d at 531. Under the totality of the particular circumstances presented in this case, we cannot say that the trial court exceeded its discretion in dismissing the Smiths’ claims and denying the Smiths’ motion to alter or vacate that dismissal.

B. The Trial Court’s June 23, 2008, Order

The Smiths contend that the trial court violated their basic right of due process in entering its June 23, 2008, judgment finding that the seizure of equipment and the enjoining of the Cowarts had been wrongful and ordering the forfeiture of the surety bond. The Smiths contend that they were provided no notice of the motion or of any hearing at which it would be considered and that this falls short of the minimum requirements for due process. They note that their previous counsel denied receiving any notice of the Cowarts’ motion that led to the hearing or any notice of a setting of a hearing on the Cowarts’ motion. (They also observe that the Cowarts did not serve a copy of their written motion on USF & G.) The Smiths argue that the entry of the June 23, 2008, judgment without providing notice and an opportunity to be heard when for nine years the Cowarts had given no indication that they needed relief from the writ of seizure constitutes an error of due process that requires the reversal of the trial court’s final judgment.

Among other things, the Smiths cite Humane Society of Marshall County v. Adams, 439 So.2d 150, 152 (Ala.1983), for the proposition that “the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” In Adams, this Court observed:

“ ‘The doctrine of the authorities is that whenever it is sought to deprive a person of his property, or to create a charge against it, preliminary to, or which may be made the basis of, taking it, the owner must have notice of the proceeding, and be afforded an opportunity to be heard as to the correctness of the assessment or charge. It matters not what the character of the proceeding may be, by virtue of which his property is to be taken, whether administrative, judicial, summary, or otherwise.’ ”

439 So.2d at 152 (quoting Jenks v. Stump, 41 Colo. 281, 286, 93 P. 17, 19 (1907)).

In the present case, the trial court set a date for a hearing on the Cowarts’ motion. On June 23, 2008, the Cowarts and their counsel appeared for the hearing, but the Smiths and their counsel did not appear. The trial court heard evidence from the Cowarts. Based on the evidence presented to it in that hearing, the trial court made factual findings and entered a judgment on the merits to the effect that the Cowarts “were deprived of the use of this equipment wrongfully” and that they “were damaged in excess of the $250,000 bond posted by the [Smiths].”

As noted, the Smiths’ contention is that they received no notice of the June 23, 2008, hearing, nor any opportunity to be heard regarding the issues adjudicated in it. The record supports their contention. When the Cowarts filed their written motion on June 19, 2008, just four days before the hearing, they sent a copy of the motion to an address of the Smiths’ previous counsel that, in April 2003, the Smiths’ counsel had informed the trial court was no longer his correct address. In the Smiths’ August 4, 2008, motion to set aside the trial court’s judgment, the Smiths’ previous counsel represented that he never received a copy of the Cowarts’ motion, and the Cowarts do not dispute this claim.

Furthermore, when the trial court set a date for the hearing on the Cowarts’ motion, it did not do so by order or even by entry in the case-action summary. The Smiths’ previous counsel stated that he never received notice that there would be a hearing on the motion; nothing in the final judgment or other orders entered by the trial court contradicts this assertion. The trial court repeatedly stated in its April 22, 2009, order denying the Smiths’ first motion to set aside the judgment that the Smiths’ counsel received notice of the May 12, 2008, trial setting for the Smiths’ claims, but it never stated that the record indicated that the Smiths’ counsel received notice of the June 23, 2008, hearing. If the Smiths’ counsel did not receive any notice — even through the case-action summary — of a hearing on the Cowarts’ motion, it would not be surprising that the Smiths and their counsel failed to appear for that hearing.

The Cowarts argue that the trial court orally set the date for the hearing on their motion during the May 12, 2008, hearing. Accordingly, the Cowarts argue, if the Smiths had appeared for the May 12, 2008, hearing in which the trial court dismissed the Smiths’ claims against the Cowarts, the Smiths would have had notice of the June 23, 2008, hearing on the Cowarts’ motion against the Smiths. Even assuming this to be true, the fact remains that the Smiths and their counsel were not present at the May 12, 2008, hearing. An appropriate effort therefore was necessary in order to provide notice to the Smiths and their counsel of the subsequent hearing on the Cowarts’ motion.

In sum, it is undisputed that neither the Smiths nor their counsel received advance notice of the June 23, 2008, hearing. Consequently, we reverse the trial court’s final judgment insofar as it reaffirmed the June 23, 2008, order finding that the seizure of equipment and the enjoining of the Co-warts had been wrongful and accordingly ordering a forfeiture of the bond that had been posted by the Smiths.

IV. Conclusion

We affirm the trial court’s judgment insofar as it dismissed the Smiths’ claims against the Cowarts for failure to prosecute those claims. We reverse the trial court’s judgment insofar as it reaffirmed the trial court’s June 23, 2008, order as described above, and we remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . A copy of the SouthTrust assignment to the Smiths states that the assignment concerns a security interest in "those certain equipment, furniture, fixtures, accessories, parts and inventory of Heartland Products, Inc., more specifically described [in] attached Exhibit 'A.' ” "Exhibit A” contains a description of the real property.

      . At some point in the course of the litigation USF & G was acquired by Travelers Bond & Financial Products, which became the successor in interest on the bond. For the sake of simplicity, we refer to the surety as USF & G throughout this opinion.

      . Rule 64(b)(2)(B), Ala. R. Civ. P., provides:
      "If the court upon preliminary examination finds that the risk of concealment, transfer or other disposition of or damage to the property by permitting it to remain in the possession of the defendant between the filing of the action and the time of a hearing is real, then the court shall forthwith enter an order authorizing the issuance of a writ of seizure but the court shall provide in said order that the defendant is entitled, as a matter of right, to a pre-judgment hearing on the issue of dissolution of the writ if a written request for hearing is served on counsel for the plaintiff within five (5) days from the date of seizure of the property by the sheriff or other duly constituted officer. If such a request is made, the writ shall expire upon the fifteenth day from said date of seizure unless the court, after hearing, continues the order in effect. The expiration of the writ shall not prejudice the right of the plaintiff to a reinstatement thereof but any such reinstatement shall not be made without notice and hearing. If no request for a hearing is made within the five- (5-) day period, the writ shall remain in effect pending further order of the court but, the court, in its discretion, may hear a request for dissolution of the writ although said request is served more than five (5) days from the date of seizure.”

      . The case-action summary does contain a notation dated June 19, 2008, indicating that the Cowarts had filed their forfeiture motion with the trial court.

      . We note that the bond posted by the Smiths and ordered forfeited by the trial court provides, among other things, that "Nathan Smith IV and Dale D. Smith (‘Plaintiffs’) and the undersigned sureties are held and firmly bound unto [the Cowarts] in the sum of Two Hundred Fifty Thousand and no/100 ($250,-000.00) Dollars" based on the conditions subsequently described in the bond.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Stuart C. DuBOSE, individually and as personal representative of the estate of Joseph J. Sullivan, deceased v. Cheryl WEAVER.
    1070579.
    Supreme Court of Alabama.
    Feb. 25, 2011.

      Daniel L. McCleave of McCleave Den-son Shields, L.L.C., Mobile, for appellant.
    Utopia Cassady of Cassady & Cassady, P.C., Fairhope; and Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellee.
   MURDOCK, Justice.

This ease concerns a dispute between Cheryl Weaver and Stuart C. DuBose, an attorney who represented Weaver and who also served as the personal representative of the estate of Joseph J. Sullivan, deceased (“the estate”), in which Weaver had an interest. We vacate the judgment of the Mobile Circuit Court, dismiss the case, and dismiss the appeal.

I. Facts and Procedural History

The present case is not the first case before this Court concerning the relationship between DuBose, Weaver, and the estate. See Ex parte Alabama State Bar, 3 So.3d 178 (Ala.2008) (staying disciplinary proceedings against DuBose that arose out of his representation of Weaver and the estate). As this Court noted in Alabama State Bar:

“In April 2003 Cheryl Weaver asked Dubose, then a practicing attorney, to prepare and draft a will for Joseph J. Sullivan. Sullivan, an elderly widower, lived in Washington County and had no immediate family living nearby. Weaver had been Sullivan’s caretaker for more than a decade, and when Sullivan became ill he eventually moved in with Weaver, who continued to care for him. Weaver informed Dubose that Sullivan was dying and that he wanted to leave his entire estate to her. Sullivan’s estate was substantial; it consisted of various bank accounts, stocks in various companies, and real property. Dubose drafted a will naming Weaver as the executor and sole beneficiary of Sullivan’s estate. According to Dubose, Weaver also told him that she wanted him to be named in the will as the attorney for the estate. Dubose included in the will provisions naming himself as the successor personal representative as well as the attorney for the estate. Dubose stated that he explained to Weaver the proper procedure to effectuate the due execution of the will by Sullivan. He also prepared a certifícate to be signed by Sullivan’s physician stating that Sullivan was competent and directed Weaver to have it signed. Du-bose did not meet with or speak to Sullivan regarding the will or its provisions before preparing the will.
“Sullivan signed the will on April 11, 2003; he died on April 29, 2003. On May 6, 2003, Weaver and Dubose, apparently in anticipation of an action by Sullivan’s heirs contesting the will, entered into a contingency contract whereby Dubose was employed to represent both Sullivan’s estate and Weaver. Sullivan’s estate and Weaver agreed to pay Dubose 33% from the proceeds of any settlement obtained before the filing of a will contest and 40% from the proceeds of any settlement obtained after the filing of any will contest. The agreement also provided that Sullivan’s estate and Weaver would pay the cost of any investigation that might be required.”

In May 2003, with DuBose’s assistance, Weaver filed in the Washington Probate Court a petition to admit Sullivan’s will to probate and a petition for letters testamentary. In August 2003, before the will was admitted to probate, Sullivan’s heirs filed a petition in the Washington Circuit Court contesting the will (“the will-contest petition”).

Contemporaneously, Sullivan’s heirs filed in the probate court a “Petition for Transfer and Removal of the Estate from Probate Court to Circuit Court for Will Contest Proceedings” (“the transfer/removal petition”). The transfer/removal petition specifically referenced Ala. Code 1975, § 43-8-198, which provides for the transfer of a pending will contest by the probate court to the circuit court. The transfer/removal petition also contained allegations, however, that “in the opinion of Contestants/Plaintiffs [i.e., Sullivan’s heirs,] the said estate can be better administered in the Circuit Court of this County than in the Probate Court” and that “there has been no final settlement of said decedent’s estate, and no proceedings have been taken in the Probate Court of this County preparatory to a final settlement of said estate.”

On August 22, 2003, the probate court issued an order in relation to the transfer/removal petition. The order stated that the petition “pray[ed] for the removal of the administration of the said decedent’s estate from the Probate Court ... to the Circuit Court.” (Emphasis added.) Also, the order states that “the Estate of Joseph J. Sullivan, deceased, be and the same hereby is removed from the Probate Court of Washington County, Alabama, and transferred to the Circuit Court of Washington County, Alabama, to be administered and processed according to the law and Court rule.” (Emphasis added.) The order of the probate court makes no specific reference to a will contest. Thereafter, the Washington Circuit Court purported to appoint a special administrator of the estate and to conduct proceedings concerning the will contest; the probate court apparently took no further action concerning the estate.

DuBose represented Weaver in the will contest. On February 14, 2005, after Sullivan’s heirs and Weaver entered into a settlement agreement concerning the will contest, Sullivan’s heirs filed a motion to dismiss the will contest. On that same date, the circuit court entered an order dismissing the will contest with prejudice.

Also on February 14, 2005, Weaver and DuBose filed a petition to probate the will, along with what appears to be a copy of the will, in the Washington Circuit Court. Contemporaneously, Weaver filed a renunciation of her right to be appointed sole personal representative of the estate, and she and DuBose filed a petition for letters testamentary, requesting that they be appointed co-personal representatives of the estate. On the same date, the Washington Circuit Court entered an order purporting to admit the will to probate and an order granting Weaver and DuBose’s petition for letters testamentary. An electronic stamp on the petition to probate the will, on the copy of the will, on the renunciation, on the petition for letters testamentary, and on the orders of the Washington Circuit Court admitting the will to probate and granting the petition for letters testamentary reflects that those documents were recorded in the “Miscellaneous” records, “Book # 148,” of the probate court after the Washington Circuit Court entered the orders; the will was also recorded in the book maintained by the probate court for the recording of wills.

Within a week after their appointment as co-personal representatives of the estate, a dispute arose between Weaver and DuBose as to the compensation allegedly due DuBose. DuBose contended that, pursuant to the contingency-fee agreement he and Weaver had entered into concerning the will contest, he was entitled to 40% of Weaver’s portion of the estate, which was valued at approximately $2.5 million, including corporate stock and real property. Weaver contended that the value of the stock and the real property was not to be included in calculating DuBose’s fee and that DuBose was entitled only to 40% of the cash assets of Weaver’s portion of the estate. Consequently, on February 18, 2005, DuBose filed in the purported estate-administration proceeding in the circuit court a verified claim against the estate claiming that he was entitled to $127,630 for his services as co-personal representative and that he was entitled to “[fjorty percent (40%) of all assets of the Estate[,] which for Estate Tax Return purposes were valued at $2,566,975.00,” as attorney fees. In response, Weaver, having obtained new counsel, filed in the same proceeding a “Complaint and Objection to Verified Statement” in which she objected to the verified claim and asserted claims against DuBose alleging breach of fiduciary duty, legal malpractice, misrepresentation/suppression, and negligent administration of the estate.

The judges of the First Judicial Circuit, which includes Washington County, re-cused themselves from the case; the recu-sals were apparently based upon concerns about an appearance of impropriety because DuBose, a party in a legal action, regularly practiced law before the judges at issue. Then Chief Justice Drayton Na-bers assigned the case to Judge John R. Lockett of the Mobile Circuit Court. Subsequently, because DuBose was elected as a circuit judge in Washington County, Judge Lockett granted a motion filed by Weaver to transfer the case to the Mobile Circuit Court.

Weaver’s and DuBose’s claims were set for trial. On the date of the scheduled trial, they informed the court that they had reached a settlement, and DuBose read the settlement, which he had written by hand, into the record. The circuit court had the parties orally assent to each paragraph of the settlement as it was read. In pertinent part, the settlement provided that Weaver would receive from the estate $1,200,000 and approximately 600 acres of land, including Sullivan’s homestead property. DuBose would receive whatever remained of the estate after Weaver received her share. The settlement also stipulated that DuBose would be appointed sole personal representative of the estate for the purpose of effectuating the details of the settlement. The settlement stated that “[cjlosing [is] to occur as soon as [DuBose, as personal representative,] can transfer and sell all stock to provide necessary funds to satisfy the [$]1.2 million.”

Based upon the terms of the parties’ settlement agreement, the circuit court entered an order purporting to appoint Du-Bose sole personal representative of the estate; to grant letters testamentary to him; and to authorize DuBose to “undertake the execution of the Will and conclude all matters necessary in that endeavor and in the settlement agreement.” In the order, the circuit court also purported to award DuBose fees for his service as personal representative and as attorney for the estate in the amounts of $127,680 and $969,992, respectively.

According to Weaver, DuBose failed to timely fulfill his obligations under the settlement agreement. In May 2007, Weaver filed a motion in the circuit court seeking to reduce the settlement to a judgment; she alleged in her motion that “[a]ll conditions precedent to the settlement have been fulfilled.” Weaver requested a hearing followed by a judgment in her favor and “against the Estate and Judge Du-Bose pursuant to the settlement agreement.” DuBose filed a response in opposition to Weaver’s motion, contending that he was in the midst of dealing with the Internal Revenue Service (“IRS”) regarding a tax lien it had filed against the estate and that enforcement of the settlement agreement would create problems for resolving the tax-lien issue.

In August 2007, the circuit court held a hearing on Weaver’s motion to reduce the settlement to a judgment. Weaver’s attorneys alleged that DuBose had repudiated the settlement by refusing to close the estate and by failing to pay Weaver the full amount she was due from the estate under the settlement agreement. At the conclusion of the hearing, the circuit court gave each side 80 days to submit briefs on the issues addressed in the hearing.

The day after the hearing, DuBose transferred all the cash in the estate to a bank account maintained by his law firm, transferred 40% of the stock in the estate to a stock account in the name of his law firm, and deeded 40% of all the property in the estate to his law firm. In a letter detailing those transactions, DuBose stated that he executed them for the purpose of proving to the IRS that attorney fees had been paid by the estate, thus justifying a deduction the estate had taken on the estate-tax return for those fees. Du-Bose stated that he hoped that in exchange for proof of those actions he would receive “a closing letter and all requisite IRS forms releasing me individually and as [personal representative] or any other capacity.”

Weaver then filed a motion for a judgment and other relief in which she alleged that DuBose’s actions on the day after the hearing constituted “a breach of his fiduciary duty and further repudiation of the settlement agreement.” Weaver requested that the circuit court set aside DuBose’s transfers, that DuBose and his law firm be forced immediately to repay the sums paid to them by the estate, that DuBose be removed as personal representative of the estate and that the court appoint a replacement, that it be established that Weaver has a lien on certain real property of the estate, and that the circuit court enter a judgment against the estate and in Weaver’s favor in the amount of $1,190,000.

On August 17, 2007, the circuit court entered an order concerning Weaver’s motion to reduce the settlement to a judgment and her subsequent motion for a judgment and other relief. The order states that “the actions of DuBose are in derogation of the settlement agreement reached in this case” and that the circuit court “hereby enters a judgment enforcing the settlement agreement.” The order further states: (1) That “judgment is hereby entered in favor of Cheryl Weaver and against the estate of Joseph J. Sullivan and Stuart DuBose, individually, jointly and severally in the amount of one million one hundred-ninety thousand dollars ($1,190,000.00)”; (2) that DuBose’s real-property transfers were void as “contrary to the settlement agreement”; (3) that a lien existed in favor of Weaver upon certain real property, including mineral interests, that was part of the estate; and (4) that DuBose must “take all necessary steps to ensure that the conveyances” of real property to be made to Weaver “are free from any encumbrance or lien of the IRS as pursuant to the settlement agreement.”

DuBose filed a motion to alter, amend, or vacate the circuit court’s judgment, and he requested a hearing on the motion. In part, DuBose argued that the Washington Circuit Court never acquired jurisdiction over the estate administration and thus that the judgment of the Mobile Circuit Court was void. Weaver filed a response, and DuBose asked for and received permission to file a reply to Weaver’s response. Following those submissions, on December 11, 2007, the circuit court set DuBose’s motion for a hearing on December 20, 2007. On December 19, 2007, however, the circuit court issued an order stating that DuBose’s motion to alter, amend, or vacate the judgment had been deemed denied by operation of law on December 17, 2007, and it canceled the hearing on the motion. DuBose appealed to this Court.

II. Analysis

In part, DuBose argues that the Washington Circuit Court did not acquire jurisdiction over the administration of the estate because “no removal for administration was ever filed or ordered” by that court. Thus, according to DuBose, the circuit court was without jurisdiction to enter an order enforcing the parties’ settlement agreement. We agree.

Matters of subject-matter jurisdiction are subject to de novo review. Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211, 1218 (Ala.2006). Also, “[l]ack of subject matter jurisdiction may not be waived by the parties.” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).

In regard to the administration of estates, the probate court is a court of general and original jurisdiction. See Ala. Const. 1901, § 144; Ala.Code 1975, § 12-13 — 1(b). The circuit court can obtain jurisdiction over a pending administration of an estate only by removing the administration from the probate court to the circuit court pursuant to Ala.Code 1975, § 12-11-41; see Ex parte Terry, 957 So.2d 455, 457-58 (Ala.2006); Ex parte McLendon, 824 So.2d 700, 704 (Ala.2001). Section 12-11-41 provides:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, dis-tributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”

In Ex parte Smith, 619 So.2d 1374, 1376 (Ala.1993), this Court stated that “[t]he circuit court cannot initiate the administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court.” As this Court more recently explained in Ex parte Berry, 999 So.2d 883 (Ala.2008):

“In stating in Ex parte Smith that ‘[t]he circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet begun,’ 619 So.2d at 1375-76, this Court was referring to subject-matter jurisdiction. ‘Subject matter jurisdiction concerns a court’s power to decide certain types of cases.’ Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006). Our decision in Ex parte Smith relied on § 12-13-1, Ala.Code 1975, which grants probate courts ‘original and general jurisdiction’ over all matters enumerated in that statute, including the probate of wills and disputes over the right of executorship and administration.”

999 So.2d at 887-88 (emphasis omitted).

Further, the administration of an estate does not begin merely upon the filing in the probate court of a petition for letters of administration or of a petition for probate of a will and for letters testamentary. As to the former, this Court has recognized that “the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court.” Ex parte Smith, 619 So.2d at 1376; see also, e.g., Allen v. Estate of Juddine, 60 So.3d 852, 855 (Ala.2010) (“The administration of the estate was initiated by the probate court when it granted Willie Jr. letters of administration.”); Ex parte Berry, 999 So.2d at 886 (“[T]his Court in Ex parte Smith [, 619 So.2d 1374 (Ala.1993),] held that removal of the will proceeding from the probate court to the circuit court was premature because the probate court had not initiated the administration of the estate by acting on the petition.”); and Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942). As to the latter, this Court has noted that, where no letters of general administration have issued from the probate court and where the decedent’s will has not yet been admitted to probate, the circuit court “is without jurisdiction to make an order” removing the administration of the estate from the probate court to the circuit court. Ex parte Pettus, 245 Ala. 349, 351, 17 So.2d 409, 410-11 (1944).

In the present case no administration of the estate was initiated in the probate court. No general administrator of the estate was appointed by the probate court before the Washington Circuit Court purported to admit the will to probate and to issue letters testamentary to Weaver and DuBose, and the probate court did not admit the will to probate and issue letters testamentary before the circuit court purported to proceed with the estate administration. In other words, there was no pending estate administration that the Washington Circuit Court could have removed from the probate court pursuant to § 12-11-41.

Moreover, even were we to conclude that the administration of the estate was pending in the probate court when the Washington Circuit Court purported to assume jurisdiction over it, it does not appear that Sullivan’s heirs filed their transfer/removal petition in the circuit court, and at no time did the circuit court enter an order purporting to remove the administration of the estate from the probate court. The estate administration arrived in the Washington Circuit Court based upon an order from the probate court purporting to transfer proceedings to the circuit court. As noted above, however, see notes 3 and 4, the filing of a petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court’s acquisition of jurisdiction over the administration of an estate pursuant to § 12-11-41. See Ex parte Terry, supra; Nelson v. Nelson, 10 So.3d 603, 604 (Ala.Civ.App.2008); see also Ex parte Boykin, 611 So.2d 322, 326 (Ala.1992) (“ ‘ “Unless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.” 21 C.J.S., Courts, § 502, p. 769....’” (quoting Allen v. Zickos, 37 Ala. App. 361, 364, 68 So.2d 841, 843 (1953))).

Based on the foregoing, the circuit court should have granted DuBose’s motion requesting that it void the judgment enforcing the parties’ settlement agreement because it lacked subject-matter jurisdiction over the purported estate administration in which the judgment was entered.

JUDGMENT VACATED; CASE DISMISSED; AND APPEAL DISMISSED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . In the materials before this Court in Alabama State Bar, the respondent’s name was spelled "Duhose,” with a lower case "b.” In this appeal, the appellant spells his name "DuBose.”

      . We observe at this juncture that, pursuant to Ala.Code 1975, § 43-8-190, "before the probate thereof,” a will may be contested "in the court where it is offered for probate,” which of course will usually be the probate court. But see Allen v. Estate of Juddine, 60 So.3d 852 (Ala.2010). On the other hand, Ala.Code 1975, § 43-8-199, provides that a will contest may be filed in the circuit court "at any time within six months after the admission of such will to probate” (emphasis added). See Boshell v. Lay, 596 So.2d 581, 583 (Ala.1992) ("In Alabama a will may be contested in two ways: (1) before probate, a contest may be instituted in the probate court pursuant to Ala.Code 1975, § 43-8-190; or (2) after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated, pursuant to Ala. Code 1975, § 43-8-199. Stevens v. Gary, 565 So.2d 73 (Ala.1990). In order to contest a will under either of these methods, the contestant must strictly comply with the statutory language in order to quicken jurisdiction of the appropriate court. Bullen v. Brown, 535 So.2d 76 (Ala.1988).”).
      It does not appear from the record that Sullivan’s heirs also filed their will-contest petition in the probate court. The copy of the will-contest petition contained in the record on appeal is styled for the Washington Circuit Court and includes the circuit court case number. The will-contest petition reflects the stamp of the Washington Circuit Court clerk, and the prayer for relief is directed to the Washington Circuit Court. Although the style contains an additional blank for the probate court case number, that blank is empty.

      . To the extent the transfer/removal petition is construed as a petition for the transfer of a will contest, see Ala.Code 1975, § 43-8-198, providing for transfer of a will contest by the probate court to the circuit court. If the purported will contest was filed only in the circuit court, however, because no will contest was pending in the probate court at the time the transfer/removal petition was filed, then there was no will contest pending in the probate court for that court to transfer to the circuit court. We also note that § 43-8-198 provides that, "[ajfter a final determination of the contest” that has been transferred by the probate court to the circuit court, the circuit court is to transfer the matter back to the probate court to allow the recording in the probate court of the will, thus allowing the administration of the estate to proceed at that juncture in the probate court.
      To the extent the transfer/removal petition sought to change the forum for the administration of the estate from the probate court to the circuit court, see Ala.Code 1975, § 12-11-41, providing the circuit court with authority to remove the administration of an estate from the probate court “at any time before a final settlement” based, in part, on an allegation that "such estate can be better administered in the circuit court than in the probate court.”
      The case-action-summary sheet of the Washington Circuit Court does not reflect that the transfer/removal petition was filed in that court. The caption of the petition in the record on appeal contains a blank for both the probate court case number and the circuit court case number, but only the blank for the probate court case number is completed. Also the petition is date-stamped as having been filed in the probate court in August 2003. Thus, nothing in the record supports the conclusion that the transfer/removal petition was filed in the Washington Circuit Court in August 2003 or thereafter. (Although the transfer/removal petition also bears an October 2007 date-stamp for the Mobile Circuit Court (where the case was eventually transferred, see discussion, infra), that stamp was affixed only because the transfer/removal petition was included as an exhibit to Weaver’s response in opposition to a motion filed by DuBose; Weaver's response was filed in October 2007 in the Mobile Circuit Court.)

      . As indicated by the authority referenced in note 3, supra, a probate court has authority to transfer to the circuit court a will contest pending in the probate court. See Ala.Code 1975, § 43-8-198; Ex parte McLendon, 824 So.2d 700, 704 (Ala.2001). The probate court does not have authority to transfer the administration of an estate to the circuit court; the authority to remove the administration of an estate from the probate court to the circuit court resides in the circuit court. See Ala. Code 1975, § 12-11-41; Ex parte McLendon, supra. See generally Ex parte Boykin, 611 So.2d 322, 326 (Ala.1992) (""‘Unless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.” 21 C.J.S., Courts, § 502, p. 769....’ ” (quoting Allen v. Zickos, 37 Ala.App. 361, 364, 68 So.2d 841, 843 (1953))).

      . Based on the materials filed with this Court in Alabama State Bar, Weaver also filed an action in the Washington Circuit Court separate from the purported estate-administration proceeding in which she alleged claims identical to the claims in the "Complaint and Objection to Verified Statement.” DuBose filed a motion to dismiss the separate action on the grounds that Weaver was attempting to prosecute two actions for the same cause, and Weaver’s separate action was dismissed without prejudice.

      . DuBose had previously paid Weaver $10,000 from the estate.

      . Weaver relies upon Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967), for the proposition that the procedural requirements regarding transfer of the administration of an estate may be waived. The procedural history in Norton is somewhat confusing and in some respects reflects an erroneous description as to the removal of the administration of an estate from the probate court to the circuit court. Ultimately, Norton is inapposite. What was at issue on appeal in Norton was whether the circuit court had properly acquired jurisdiction over a claim for services rendered that was filed in the probate court, where the administration of the estate was pending when the claim was filed, and subsequently tried in the circuit court, which had concurrent jurisdiction over such claims. After noting that the claim at issue fell within the equity jurisdiction of the circuit court, but that the record failed "to show a proper transfer of the cause to the Circuit Court,” the Norton Court concluded that "the appellant waived the antecedent procedural steps for bringing the cause before the Circuit Court, which court otherwise had jurisdiction of the subject matter.” 280 Ala. at 357, 194 So.2d at 517.
      In light of what was at issue in Norton, we do not read that case as standing for the proposition that a party can waive the requirements that a petition for removal of the administration of an estate be filed in the circuit court and that the circuit court enter an order of removal. Indeed, to do so would eviscerate the line of precedent concerning the removal of the administration of an estate hereinabove discussed. (Even if we were to so read Norton, that would not change the fact that in the present case, unlike in Norton, no estate administration was ever initiated in the probate court, i.e., no subject matter over which the Washington Circuit Court or the probate court properly could have exercised jurisdiction ever came into being.)

      . We express no opinion concerning whether the alleged settlement agreement entered into by Weaver and DuBose can be enforced either in a separate action or as part of a properly initiated estate-administration proceeding.


text:
    Ex parte NAWAS INTERNATIONAL TRAVEL SERVICE, INC., and George Khoury. (In re Michael Kelley and Jackie Kelley v. Nawas International Travel Service, Inc., and George Khoury).
    1091720.
    Supreme Court of Alabama.
    March 4, 2011.

      Charles C. Simpson III and Kimberly L. Bell of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for petitioners.

      Thomas T. Gallion III and Michael W. Kelley II of Haskell Slaughter Young & Gallion, LLC, Montgomery, for respondents.
   MURDOCK, Justice.

Nawas International Travel Service, Inc. (“Nawas”), a business incorporated in New York and having its principal offices in Connecticut, and its executive vice president George Khoury, a Connecticut resident, petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss the complaint of plaintiffs Michael Kelley and Jackie Kelley, who are Alabama residents, on the basis of an outbound forum-selection clause. We grant the petition.

I. Facts and Procedural History

Nawas is an international travel-service company that advertises itself as offering “quality Christian tours since 1949.” Through members of their church, First Baptist Church Montgomery, the Kelleys heard about a trip to Israel being offered by Nawas, described as a tour of “the Holy Land,” that would take place between February 21 and March 2, 2009. The Kelleys requested a brochure from Nawas concerning the trip, and Nawas provided them with a brochure that contained a description of the excursion and a reservation form with terms and conditions. The “General Conditions” portion of the reservation form contains a statement in bold print that provides as follows: “Payment of deposits by tour participants indicates acceptance of the above terms and General Conditions. The venue for any dispute is Fairfield County, Connecticut. The laws of the State of Connecticut will apply.” The Kelleys returned a completed reservation form with payment for the trip.

The tour group, including the Kelleys, embarked on the trip as planned on February 21, 2009, with a transatlantic flight from Atlanta, Georgia, to Tel Aviv, Israel. The main activity scheduled for February 24, 2009, was a boat ride across the Sea of Galilee. Nawas had contracted with Kin-nereth Sailing Company, Ltd. (“Kinner-eth”), to conduct the boat tour. The Kel-leys allege that during the boat ride the Kinnereth employees responsible for steering the boat failed to pay attention to the direction of the boat, which resulted in the boat striking rocks near the shoreline. The force of the crash caused Mr. Kelley to be thrown against a wall of the boat on which was a sharp metal hook. Mr. Kelley’s head struck the hook, cutting him below the temple, in front of his right ear, and down his face to his jaw. According to the Kelleys, the injury produced profuse bleeding from the gash on Mr. Kelley’s face, and he sustained a concussion that caused blurred vision and loss of memory. Mr. Kelley received medical treatment for his injuries at two different hospitals in Israel.

After Mr. Kelley had received treatment for his injuries, the Kelleys returned to the tour, though they allege they were unable to enjoy any of it because of Mr. Kelley’s injuries. Sometime after the incident but before the tour ended, George Khoury telephoned the Kelleys from his office in Connecticut to express his concern for them. The Kelleys allege that Khoury represented that Nawas would take care of any expenses the Kelleys incurred as a result of the accident. The Kelleys also allege that when Olga Nawas, the head of the Nawas office in Jerusalem, stopped by to check on Mr. Kelley, she stated that Nawas would take care of any expenses the Kelleys sustained as a result of Mr. Kelley’s injuries.

On May 13, 2010, the Kelleys filed a complaint in the Montgomery Circuit Court against Nawas, Khoury, and Kinner-eth, alleging breach of contract, breach of express warranty, negligence and/or wantonness, fraud, and the tort of outrage, and, as to Nawas and Khoury, negligent hiring, selection, or retention of a service provider. On June 21, 2010, defendants Nawas and Khoury filed a motion to dismiss the complaint based upon the forum-selection clause, which states that any action against Nawas must be filed in Fair-field County, Connecticut. Following a response from the Kelleys and a hearing on the motion, the Montgomery Circuit Court on August 4, 2010, entered an order denying the motion to dismiss filed by Nawas and Khoury. The circuit court did not explain its reasons for its ruling.

On September 14, 2010, Nawas and Khoury filed the present petition for a writ of mandamus addressing the Montgomery Circuit Court’s August 4, 2010, order. Subsequently, the Kelleys obtained service on Kinnereth in Israel; Kinnereth, in turn, filed its own motion to dismiss on October 13, 2010. On November 4, 2010, the circuit court granted Kinnereth’s motion to dismiss, thus excusing it from the Kelleys’ action.

II. Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).’
“Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). In Ex parte CTB, this Court established that a petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an ‘outbound’ forum-selection clause when it is presented in a motion to dismiss. Indeed, an attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue.”

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).

III. Analysis

Nawas and Khoury contend that the circuit court should have enforced the forum-selection clause because the Kelleys contractually agreed to it as part of the terms and conditions of the tour trip provided by Nawas. They argue that the Kelleys did not offer a defense that counsels in favor of nonenforcement of the clause.

This Court has stated that

“ ‘[a]n outbound forum-selection clause is enforceable unless the challenging party can establish that enforcement of the clause would be unfair on the basis that the contract “‘[w]as affected by fraud, undue influence, or overweening bargaining power or ... enforcement would be unreasonable on the basis that the [selected] forum would be seriously inconvenient.’” The burden on the challenging party is difficult to meet. Ex parte CTB, [782 So.2d 188 (Ala.2000)]. See also Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997).’ ”

Ex parte Soprema, Inc., 949 So.2d 907, 912 (Ala.2006) (quoting Ex parte D.M. White Constr. Co., 806 So.2d at 372).

The Kelleys did not contend before the circuit court — nor do they argue before this Court — that enforcement of the subject forum-selection clause would be unfair because the clause was the result of fraud, undue influence, or overweening bargaining power. Instead, they contend that enforcement of the clause would be unreasonable on the basis that the selected forum — Fairfield County, Connecticut— would be seriously inconvenient.

“In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [ (Ala.1999) ].
“ “When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.’ ”

Ex parte Rymer, 860 So.2d 339, 342-43 (Ala.2003) (quoting Ex parte Northern Capital Res. Corp., 751 So.2d 12, 15 (Ala.1999)).

We note preliminarily (1) that Nawas is a business entity while the Kelleys are not, (2) that the subject matter of the contract is not such as to be a significant factor in determining whether the outbound forum-selection clause should be enforced, (3) that the “chosen forum” has “inherent advantages” for one party but not for the other, and (4) that the parties should have been able to understand the agreement as it was written. As to the fifth factor listed in Rymer, we note that when the Kelleys decided to travel to Israel, they took the risk that one of them might be injured in an unexpected, tortious incident and the concomitant risk that, to the extent this might occur at the hand of an Israel-based tortfeasor, they would have to seek relief from that tortfeasor in Israel. That fact has not changed since the Kelleys entered into the agreement with Nawas. As to the risk that any incident occurring in Israel might give rise to a claim by the Kelleys against Nawas and Khoury, the Kelleys agreed in advance that any such claim would have to be pursued in Connecticut. That too has not changed.

The primary focus of the Kelleys’ argument to this Court is their assertion that the enforcement of the forum-selection clause in their agreement with Nawas would place “a serious burden” upon them. They argue that

“[d]ue to the dismissal of Kinnereth, [the Kelleys] now have no choice but to pursue their case against [Kinnereth] in Israel. Were this court to rule that the alleged forum selection clause in the [reservation form] were valid and enforceable, [the Kelleys] would have no choice but to pursue [Nawas and Khoury] in Connecticut. It defies logic to argue that this scenario does not create such a serious burden that the [Kel-leys] would essentially have to give up and lose their day in court as opposed to pursuing this case in those two far away jurisdictions.”

Kelleys’ brief, pp. 11-12.

It is true that this Court has held that “‘[t]he enforcement of a forum-selection clause creates a serious inconvenience if it would result in two lawsuits involving similar claims or issues being tried in separate courts.’ ” Ex parte Leasecomm Corp., 886 So.2d 58, 63 (Ala.2003) (quoting Alpha Sys. Integration, Inc. v. Silicon Graphics, Inc., 646 N.W.2d 904, 909 (Minn.Ct.App.2002)). The Kelleys argue that enforcing the forum-selection clause would be seriously inconvenient because it would force them to litigate the same issues that arise out of the same set of facts in two different forums. In particular, they highlight and attempt to draw parallels between the facts of this case and the facts presented in F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So.2d 366 (Ala.2006). In Malouf Construction, this Court explained the situation and reasoned as follows:

“Malouf argues that just such a serious inconvenience would exist in this case if we ordered the trial court to enforce the outbound forum-selection clause. In the underlying action, the Association has asserted claims against Malouf arising from Maloufs general construction of the Palm Beach Condominiums; Malouf has, in turn, brought third-party claims against Crane and several other subcontractors. Malouf argues that enforcement of the outbound forum-selection clause in this case would move the litigation of the claims between Malouf and Crane to Mississippi, where, Malouf argues, they would be litigating claims and issues identical to those being tried in Alabama between Malouf and the Association and between Malouf and the other subcontractors, all of which arose out of the same construction job as did Mal-oufs claims against Crane. If its claims against Crane are transferred, Malouf argues, it would be subject to duplicative discovery and litigation.
“Crane asks us to transfer the claims involving Malouf and Crane to Mississippi, while all the other related claims remain in Alabama. Crane argues that the action brought in Alabama by the Association involves claims and parties 'wholly unrelated to anything Crane did in the construction of Palm Beach Condominiums,’ and that the action in Mississippi would involve the ‘sole issue’ whether Crane properly completed its work during the construction. Crane is correct that the action brought by the Association involves other parties unrelated to Maloufs third-party action against Crane and therefore involves issues that may not be present in the third-party action, but the opposite is not necessarily true. Maloufs claims against Crane involve issues that will be litigated in the Association’s action. Both cases will likely involve interpretation of the same contract tetmis, and Maloufs testimony as to its activities during construction will be necessary in both actions. Litigation of the same issues, arising out of the same construction project, could therefore cause Mal-ouf‘serious inconvenience.’ ”

953 So.2d at 373-74 (emphasis added).

In Malouf Construction, the Court’s af-firmance of the trial court’s decision not to enforce the forum-selection clause resulted in both actions remaining in the same forum. That would not happen here. The Kelleys argue that it would be seriously inconvenient to litigate their action in two different forums as a result of enforcing the forum-selection clause, even though the circuit court’s dismissal of Kinnereth from their Alabama action means that they will be forced to litigate in two separate forums regardless. The only question is whether one of those forums will be Alabama or Connecticut. In other words, refusing to enforce the subject forum-selection clause will not result in “duplicative discovery and litigation” or the duplicative expenditure of judicial resources, any more than if the Kelleys could try their action against Nawas and Khoury in Alabama. Therefore, we do not find that Malouf provides a persuasive rationale for not enforcing the forum-selection clause in the present case.

Nawas and Khoury draw parallels between the forum-selection clause at issue in this case and the forum-selection clause in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), in explaining why they believe enforcement of the forum-selection clause is reasonable. In Harden v. American Airlines, 178 F.R.D. 583 (M.D.Ala.1998), the Federal District Court for the Middle District of Alabama succinctly summarized the holding in Shute:

“In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the Supreme Court enforced a form forum selection clause printed on a cruise ticket, and held that it was reasonable. The particular forum clause at issue was strikingly similar to the present: (1) it was printed on the back of the ticket (which was not furnished to the Plaintiffs until after payment); (2) it applied to ‘all disputes and matters whatsoever arising under, in connection with or incident to this Contract;’ and (3) it chose a forum several thousand miles away from the Plaintiffs’ home. Id. at 587-88, 111 S.Ct. at 1524-25. The Court held that the clause met with fundamental fairness, because of its connection to the Defendants’ principal place of business, and the lack of any evidence of fraud or bad faith. Id. at 595, 111 S.Ct. at 1528. Further, the Court noted that such clauses would be permissible in similar instances for a number of reasons:
‘First, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions. Finally, it stands to reason that passengers who purchase tickets containing a forum clause ... benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued.’
“Id. at 593-94, 111 S.Ct. at 1527 (internal citations omitted).”

178 F.R.D. at 586 (emphasis added). Na-was and Khoury note that similar reasons support the reasonableness of the forum-selection clause in this case because Nawas is a travel agency whose principal place of business is in the state named as the forum in the forum-selection clause.

The Kelleys argue in the alternative that Nawas does not have standing to enforce the forum-selection clause because of Alabama’s door-closing statute, § 10-2B-15.02(a), Ala.Code 1975.

“Section 10-2B-15.02(a) provides:

“ ‘(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.’
“ ‘This section of the Code is part of a statutory scheme that requires foreign corporations to receive a certificate of authority to do business in this State before transacting business here.’ Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988). ‘Failure to secure such a certificate means that the foreign corporation cannot enforce a contract entered into in this State.’ 525 So.2d at 1370. ‘A foreign corporation that has not been authorized to do business in Alabama is not barred from enforcing its contracts in the courts of this state, however, “unless the business conducted here by [the] non-qualified corporation[] is considered ‘intrastate’ in nature.” ’ Building Maintenance Pers., Inc. v. International Shipbuilding, Inc., 621 So.2d 1303, 1304 (Ala.1993) (quoting Wise v. Grumman Credit Corp., 603 So.2d 952, 953 (Ala.1992)). This is because ‘businesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution, U.S. Const., Art. I, § 8, cl. 3, and are therefore immune from the effects of the “door closing” statutes.’ Stewart Mach. & Eng’g Co. v. Checkers Drive In Rests, of N. America, Inc., 575 So.2d 1072, 1074 (Ala.1991). Because TradeWinds concedes that it was not qualified to do business in Alabama at the time the contract was entered into, or, for that matter, at the time of performance under the contract, ‘the focus of this case is on whether [TradeWinds] was engaged in interstate or intrastate commerce; this issue is ultimately decided on a case-by-case basis.’ Stewart Mach. & Eng’g, 575 So.2d at 1074. ‘[I]n determining whether a corporation is doing business in Alabama within the meaning of § [10-2B-15.02], courts are flexible and decide each case on its own facts.’ Green Tree Acceptance, 525 So.2d at 1370.
“... Alabama caselaw also holds that § 10-2B-15.02, Ala. Code 1975, is applicable to those entities that engage in intrastate business and fail to register. See Brown v. Pool Depot, Inc., 853 So.2d 181, 185 (Ala.2002) (‘ “It has been held that a foreign corporation doing business in this state without qualifying cannot use our courts to enforce its contracts. Continental Telephone Corp. v. Weaver, 410 F.2d 1196 (5th Cir.1969). Alabama Const. art. XII, § 232, and §§ 10-2A-247 and 40-14-4, Code 1975 [now codified as 10-2B-15.02, Ala.Code 1975], prohibit a nonqualified foreign corporation from enforcing a contract made in Alabama if it is doing business in Alabama.” ’ (quoting Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244 (Ala.Civ.App.1986))). Thus, whether § 10-2B-15.02 applies to a contract involving a foreign corporation turns on whether the foreign corporation, whether or not engaged in interstate commerce, is engaged in intrastate business.”

TradeWinds Envtl. Restoration, Inc. v. Brown Bros. Constr., LLC, 999 So.2d 875, 878-79 (Ala.2008) (emphasis added).

Nawas and Khoury concede that Nawas “is not registered, qualified, or licensed to do business in Alabama.” Consequently, enforcement of the forum-selection clause in Nawas’s agreement with the Kelleys depends upon whether the subject of the agreement involves intrastate business.

Khoury submitted an affidavit to the circuit court in which he stated that “Na-was did not specifically target Alabama residents to attend its trips. Rather, residents of multiple states attend the various tours that Nawas offers.” The Kelleys did not offer evidence to contradict this assertion. The agreement at issue concerns an international tour. On the evidence presented, the nature of the business Nawas conducts is interstate in nature; it involves providing travel and touring services to customers throughout the United States. Therefore, because the subject business is interstate rather than intrastate in nature, Nawas is not subject to the strictures of Alabama’s door-closing statute, and its contract with the Kelleys — including the forum-selection clause — is enforceable.

In sum, the Kelleys accepted a contract with Nawas that contained an outbound forum-selection clause. The clause is presumptively enforceable unless the Kelleys could provide a reason it should not be enforced against them. The arguments the Kelleys made in this case as to inconvenience and Alabama’s door-closing statute fail to undermine the enforceability of the forum-selection clause. Accordingly, we grant the petition and order the circuit court to dismiss the Kelleys’ action.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . The Kelleys allege that Nawas had worked with members of the church to create the brochure advertising the trip, and they cite the fact that the brochure contains messages from Dr. Dale Huff and Reverend Harold Hancock, who, they allege, are members of First Baptist Church Montgomery, as confirmation of this allegation. Nawas alleges that it ‘‘has never heard of the First Baptist Church in Montgomery, Alabama and was unaware that [the Kelleys] were members of this church until [the Kelleys] filed their Complaint.” Neither the Kelleys nor Nawas provide affidavits or other evidence, however, substantiating their competing allegations. In any event, enforcement of the forum-selection clause renders the truth or falsity of these allegations meaningless.

      . "The party asserting the nonqualification defense has the burden of proof on the issue. Kyle v. Central Nat’l Bank, 226 Ala. 257, 146 So. 801 (1933). Once a party presents evidence establishing that a corporation is a nonqualified corporation, the burden shifts to the nonqualified corporation to present evidence establishing that it is exempt from § 10-2B-15.02(a). A non-qualified corporation establishes that it is exempt from § 10-2B-15.02(a) by showing that its activities are interstate as opposed to intrastate. J.W. Hartlein Constr. Co. [v. Seacrest Assocs., L.L.C.], 749 So.2d [459] at 462 [(Ala.Civ.App.1999)]."

        Casa Invs. Co. v. Boles, 931 So.2d 53, 58 (Ala.Civ.App.2005).