author: MOORE, Chief Justice. MURDOCK, Justice PARKER, Justice

text:
    GUYOUNGTECH USA, INC. v. Elaine DEES.
    1120505.
    Supreme Court of Alabama.
    June 6, 2014.

      Forrest S. Latta, Kathryn M. Willis, and Taylor N. Barr of Burr & Forman LLP, Mobile, for appellant.

      Max Cassady of Cassady & Cassady, P.C., Fairhope; and Mark J. Upton of Dan-iell, Upton & Perry, P.C., Daphne, for appellee.
    Matthew C. McDonald of Jones Walker LLP, Mobile, for amici curiae Alabama Civil Justice Reform Committee and Manufacture Alabama, in support of the appellant.

      . Effective October 1, 2012, shortly after the trial in this case, the Alabama Department of Labor merged into the Alabama Department of Industrial Relations, which was renamed the Alabama Department of Labor. § 25-2-1.1, Ala.Code 1975.

   MOORE, Chief Justice.

Elaine Dees sued Guyoungtech USA, Inc. (“Guyoungtech”), in the Conecuh Circuit Court, alleging retaliatory discharge. See § 25-5-11.1, Ala.Code 1975. A jury awarded Dees $1 million in compensatory damages and $2.5 million in punitive damages. The trial court denied Guyoung-tech’s posttrial motion for a judgment as a matter of law (“JML”) or, alternatively, for a new trial but remitted the awards to $300,000 in compensatory damages and $900,000 in punitive damages, which Dees accepted. Guyoungtech appeals. Because we conclude that Guyoungtech is entitled to a new trial, we do not address the denial of its motion for a JML.

I. Facts

Guyoungtech manufactures automotive parts for Hyundai Motors Manufacturing Alabama (“EMMA”) at a plant in Castle-berry. On November 17, 2010, Guyoung-tech hired Dees, who was then 28 years old, to inspect parts shipped to the plant from South Korea. Dees worked a 12-hour shift from 6:30 a.m. to 6:30 p.m. six days a week and was paid a base rate of $9.25 per hour.

On March 14, 2011, nearly four months after being hired, Dees fell and injured her left wrist while performing her job. Guy-oungtech sent Dees to Dr. Mark Roberts for an examination. She returned to work in a partial cast but was able to use her left hand and arm. At a follow-up visit on April 4, Dr. Roberts placed Dees’s left arm in a splint, referred her to an orthopedic specialist, and ordered that she work no more than eight hours a day and not lift more than three pounds. As a result, when she returned to work on April 5, Dees could effectively work with only one arm. On April 6, Dees was laid off.

Previously, on October 23, 2010, citing receipt of “a lot of defective parts” from Guyoungtech, HMMA had informed Guy-oungtech that it would be reducing its orders of the affected parts by 50% and acquiring those parts from other suppliers. To compensate for this loss of business, Guyoungtech reduced its workforce through layoffs and attrition from 300 employees in November 2010 to 212 in May 2011. Guyoungtech contends that Dees was laid off as part of this reduction in force and not because she had applied for worker’s compensation benefits.

II. Standard of Review

“In a motion for a new trial, the movant normally tests the weight of the evidence, not its sufficiency.” Shadwrick v. State Farm Fire & Cas. Co., 578 So.2d 1075, 1077 (Ala.1991). The trial court’s ruling on a motion for a new trial “should not be disturbed on appeal unless the record plainly and palpably shows that the trial court erred and that some legal right has been abused.” McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993). “[W]e review a ruling on a question of law de novo.” Parker Bldg. Servs. Co. v. Lightsey, 925 So.2d 927, 930 (Ala.2005).

III. Discussion

A. Liability

Dees claims that her employment was terminated in retaliation for her filing a worker’s compensation claim. Alabama is an at-will-employment state. Thus, an employment contract of indefinite duration “may be terminated by either party with or without cause or justification.” Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala.1987). However, the legislature has created the following exception: “No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits....” § 25-5-11.1, Ala.Code 1975 (emphasis added). A violation of this section is answerable in damages according to general tort principles. Caraway v. Franklin Ferguson Mfg. Co., 507 So.2d 925, 926 (Ala.1987).

Guyoungteeh argues that Dees’s employment was terminated as part of a bona fide and continuing layoff resulting from a reduction in the orders of parts by HMMA. See Yates v. United States Fid. & Guar. Ins. Co., 670 So.2d 908 (Ala.1995) (holding that a layoff caused by a corporate downsizing unrelated to a worker’s compensation claim is not actionable under § 25-5-11.1). Dees presented evidence from which the jury reasonably could infer that Guyoungtech’s stated reason for the layoff was a mask to conceal an illegal firing. See Yates, 670 So.2d at 909 (stating that if the employer presents a nonretaliatory reason for the discharge, “the plaintiff must then present evidence indicating that the stated reason was not the . true reason”).

Dees argues that the proximity between her return to work on April 5 with hour and weight-lifting restrictions and her discharge the next day permits an inference that she was fired because of her injury and resulting worker’s compensation claim. Although “mere closeness in time typically is not sufficient evidence of a retaliatory discharge,” Coca-Cola Bottling Co. Consol. v. Hollander, 885 So.2d 125, 131 (Ala.2003), Dees also points to evidence indicating that the Guyoungteeh executive who initiated her layoff most likely knew of her injury, even though he denied such knowledge. Further, the plant manager, who also served as safety director for the plant, denied knowing that Dees had been injured when he laid her off. The jury was entitled to find this testimony implausible. “It is settled law that the credibility of the witnesses is the province of the jury.” Floyd v. Broughton, 664 So.2d 897, 900 (Ala.1995). Dees also presented evidence indicating that Guyoung-tech, contrary to Alabama law, .had ceased reporting nondisabling injuries to its workers’ compensation insurer in an effort to reduce its premium costs. Guyoungteeh, on the other hand, demonstrated that other workers, including those in Dees’s department, had continued their employment at Guyoungteeh despite having filed worker’s compensation claims. Because we rmust view disputed evidence in a light most favorable to the jury verdict, Liberty National Life Ins. Co. v. Daugherty, 840 So.2d 152, 156 (Ala.2012), we are not in a position to substitute our judgment for that of the jury when evidence existed from which it could reasonably find that Guyoungteeh discharged Dees in violation of § 25-5-11.1.

B. Compensatory Damages

The jury awarded Dees $1 million in compensatory damages, which the trial court remitted to $300,000. A plaintiff has the burden of proving her damages. “The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence.” Johnson v. Harrison, 404 So.2d 337, 340 (Ala.1981). Dees sought compensation for future lost wages and mental anguish.

1. Future Lost Wages

Dees’s proof of future lost wages as a result of her discharge was scant. No expert testified as to her lack of employa-bility or restricted access to the labor market as a result of the discharge. When asked at trial, almost a year and a half after the termination of her employment, if she had applied for work elsewhere, Dees stated: “I’ve been under the treatment of the doctor and restrictions.” Dees’s answer, though indicating that she felt hampered in looking for work because of her injury, provided no evidence indicating that the discharge itself, the subject of this action, had rendered her less employable. Because Guyoungtech had provided her with a letter stating that “[h]er last day of employment was April 6, 2011 due to a reduction in force,” she did not bear the stigma of relating to a prospective employer that she had been fired from her previous job for any fault of her own.

Because the trial court bifurcated the worker’s compensation action and the retaliatory-discharge case, Dees’s damages, if any, for being out of work because of her injury were not at issue in this case. Thus, in computing damages for retaliatory discharge, the jury could not consider the physical effect of the injury in hindering Dees’s search for employment. Dees presented no evidence indicating that the firing itself interfered with her ability to find other employment. When asked if she had “been to another company, applied for a job and at least asked them to see whether they would take your restrictions or not,” Dees answered: “No, ma’am.” Dees’s failure to look for work prohibits her from arguing that her discharge negatively impacted her ability to find a job. See Lozier Corp. v. Gray, 624 So.2d 1034, 1037 (Ala.1993) (noting the absence of “evidence at trial that [the employer’s] termination of [the employee] caused [the employee] to be less marketable as an employee”); Gold Kist, Inc. v. Griffin, 657 So.2d 826, 829-30 (Ala.1994) (noting that discharged employee seeking damages for retaliatory discharge had “unsuccessfully applied for 20-25 different jobs,” thus indicating that “other potential employers would be reluctant to hire her because she was fired after suffering an on-the-job injury”).

2. Mental Anguish

Dees also sought damages for mental anguish. She testified to the fear and worry she experienced after losing her job at Guyoungtech. “There is no fixed standard for ascertaining the amount of compensatory damages that may be awarded for emotional distress. The determination of how much to award is left to the sound discretion of the jury, subject only to review by the court for a clear abuse of that discretion.” First Commercial Bank v. Spivey, 694 So.2d 1316, 1326 (Ala.1997). See also Foster v. Life Ins. Co. of Georgia, 656 So.2d 333, 337 (Ala.1994) (recognizing “that mental anguish and emotional distress are not items for which a precise amount of damages can be assessed”).

Recognizing the broad discretion allotted to the jury in determining compensation for mental suffering, we note that in retaliatory-discharge cases where testimony has indicated more severe effects than Dees experienced the awards were considerably lower. See Black Creek, Inc. v. Wood, 69 So.3d 172 (Ala.Civ.App.2011) (upholding $30,000 award for mental anguish where plaintiff saw a psychiatrist, took medication for depression, and suffered a divorce); Montgomery Coca-Cola Bottling Co. v. Golson, 725 So.2d 996, 1000 (Ala.Civ.App.1998) (upholding $75,000 award for mental anguish where plaintiff “could not pay his bills, his car was repossessed, he was evicted from his apartment, and he and his wife divorced”). Although Dees expressed concern for the stability of her marriage as evidence. of her mental anguish, she did not experience a divorce. She presented no evidence indicating that she had lost her home or vehicle or that she needed mental-health treatment.

3. Admission of Mortality Tables into Evidence

Dees submitted a pretrial “Notice of Supplemental Exhibit of Mortality Tables.” Guyoungtéeh objected on the ground of relevancy, stating that “any alleged damages resulting from Guyoung-tech’s alleged retaliatory discharge has absolutely no relevance to [Dees’s] life expectancy.” During trial Guyoungtech objected to the admission of the mortality tables as “too speculative” a basis for calculating damages. Dees responded that the tables were relevant to the mental-anguish claim. Guyoungtech’s counsel answered:

“And again, Your Honor, if it’s just for future anguish or mental pain and anguish, it’s again pure speculation. She may or may not have it. How can, without other evidence from the psychiatrist or a physician or anybody in the know, how can that be admitted into evidence to make an argument that she’s going to have it for the rest of her life? It’s pure speculation.”

Counsel for Dees replied that “[w]e believe that it’s required to be in evidence to be able to argue about mental anguish and the effects on her life.”

The trial court admitted the mortality tables into evidence. Guyoungtech objected to admission of the mortality tables during the jury-charge conference and also in its motion for a JML at the close of the evidence. While arguing in opposition to the motion for a JML, Dees’s counsel stated: “Are [the jurors] satisfied, are they reasonably satisfied that she would have worked there for a period of time and earned wages in the future and that’s why we wanted the mortality table.”

The trial court charged the jury as follows:

“Now one of the exhibits that’s in evidence is called a mortality table. Let me read you a charge explaining that. Mortality tables are a means of ascertaining the probable number of years a person of a given age in ordinary health will live. And the mortality, table may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent. Such tables are not binding upon you and they are not conclusive.”

In its posttrial “Motion to Remit Damages,” Guyoungtech argued that the admission of the mortality tables was improper because Dees “offered no evidence that she could never work again, for any reason, for the remainder of her life expectancy.” During argument on the motion, Guyoungtech reiterated: “And the point being, Your Honor, there was no basis for the mortality table[s] and no testimony as to how it applied, no testimony that Ms. Dees would somehow be permanently precluded from obtaining work....” The mortality tables, Guyoungtech concluded, “[c]aused confusion and prejudice.”

On appeal Guyoungtech argues that the mortality tables were inadmissible to prove damages for either lost wages or mental anguish because “no issues of permanent disability were argued in this case” and because, it says, the issue of Dees’s physical injury was reserved for the separate worker’s compensation case.- Guyoung-tech’s brief, at 35-36. Dees responds that the admissibility of the mortality tables is not reviewable because “the jury verdict form did not distinguish between the two types of damages.” Dees’s brief, at 60.

“Mortality tables are admissible where there is evidence that the plaintiff has suffered permanent personal injuries or the question of a person’s life expectancy is a material question to be decided.” Drummond Co. v. Self, 622 So.2d 336, 337 (Ala.1993) (citing C. Gamble, McElroy’s Alabama Evidence § 259.01(1) (4th ed.1991)). See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Smelley, 295 Ala. 346, 349, 329 So.2d 544, 546 (1976) (“In Alabama, mortality tables are admissible when there is evidence (even though it may be controverted) from which the jury may draw a reasonable inference that a plaintiffs injuries are permanent.”). See also Ozment v. Wilkerson, 646 So.2d 4, 6 (Ala.1994) (holding that mortality tables were admissible where the jury “reasonably could have concluded that [a surgical] scar constituted a permanent injury”); Louisville & Nashville R.R. v. Richardson, 285 Ala. 281, 283, 231 So.2d 316, 317 (1970) (holding that mortality tables “are competent evidence, where the injury is permanent”); Clark v. Hudson, 265 Ala. 630, 635, 93 So.2d 138, 142 (1956) (holding that mortality tables were admissible in light of “evidence from which there is a reasonable inference that plaintiffs injuries are permanent”).

In Collins v. Windham, 277 Ala. 129, 167 So.2d 690 (1964), this Court considered the use of a mortality table in a case where the injury alleged was mental anguish. “The specific question before us,” the Court stated, “is whether there was sufficient evidence from which the jury could draw a reasonable inference that the plaintiffs injuries were permanent, since the alleged injury- was subjective and there was no expert medical testimony showing the injuries to be permanent.” Collins, 277 Ala. at 131, 167 So.2d at 692. After reviewing similar cases from other jurisdictions, the Court concluded:

“[W]here the injury complained of is purely subjective, as in the present case, and where there is no expert medical testimony tending to show the permanency of the alleged injury, mortality tables are not admissible in evidence. To hold otherwise would permit the jury to award damages based on speculation and guesswork.”

277 Ala. at 132-33, 167 So.2d at 693-94. See also Flowers Hosp., Inc. v. Arnold, 638 So.2d 851, 852 (Ala.1994) (reversing a compensatory-damages award to a plaintiff who fell out of a wheelchair in a hospital and developed a mental condition dubbed “fear of hospitals” because “neither side presented expert testimony as to whether [the plaintiffs] fear of hospitals was permanent”); Jones v. Fortner, 507 So.2d 908, 910 (Ala.1987) (“It has been held that where there is nothing from which a layman can form any well-grounded opinion as to the permanency of the injury or where the injury is purely subjective, expert evidence must be introduced.” (citing 25A C.J.S. Damages § 162(9), at 110 (1966))).

Testifying about the mental anguish she suffered, Dees expressed concern about the potential effect of her discharge on the well-being of her daughters and on her relationship with her husband, Brad.

“Q. Now, I want to ask you about how you felt when you found out that you had been terminated, okay? Now, first of all, how does it feel to be what you think is wrongfully terminated? How did that feel to you to lose your job in the way that you lost it?
“A. I was hurt.
“Q. Okay. And can you tell the jury why it hurt you?
“A. Because even — even though I’m married, those are not Brad’s kids and I feel obligated to take care of my girls.
“Q. Now, what kind of worries has this created for you now that you do not have a job instead of working in the quality control department?
“A. Everything is on Brad’s shoulders. I’m not able — like I said, those are not his children, even though we’re married. What can I — I mean, what can I do for my daughters? They don’t look to Brad, they look to me to provide for them, not Brad.
“Q. Well, Brad does provide for the family right now, doesn’t he?
“A. (Witness shakes head in the affirmative.)
“Q. And is Brad continuing to work at Guyoungtech?
“A. Yes.
“Q. Do you worry about that?
“A. I do.
“Q. And why do you worry about that?
“A. I’m scared that no matter how this case go[es], in the end they’re going to let him go.
“Q. So you’re worried that this case when it’s over, he’s going to get fired, is that what you’re saying?
“A. Yes, sir.
“Q. And then, do you worry about what would happen to your marriage if that happened?
“A. Yes, sir.”

Dees felt hurt about losing her job; she was afraid of being unable to provide for her daughters, even though her husband continued to be employed at Guyoungtech; and she feared that Guyoungtech would eventually fire her husband, which could adversely affect her marriage. This testimony of a “purely subjective” injury unsupported by expert medical evidence of its permanency failed as a matter of law to support the admission into evidence of the mortality tables. Jones v. Fortner, 507 So.2d at 910. Additionally, the trial court’s instruction that “the mortality table may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent” was also improper. The jury was in no position to assess the permanency of Dees’s subjective mental injury without expert medical testimony. As this Court stated in Flowers Hospital, in the absence of expert medical evidence, “the trial court erred in charging the jury that it could award damages for permanent injury if it was satisfied that [the plaintiff] suffered a permanent injury.” 638 So.2d at 853.

In Flowers Hospital, this Court concluded: “Because we cannot determine whether the instructions on permanent injury affected the jury’s verdict, we must reverse the judgment based on that verdict and remand the case for a new trial.” 638 So.2d at 853. In Collins, the Court stated: “We cannot say, in the present ease, that the admission in evidence of the mortality table did not affect the jury in arriving at the verdict, especially in view of the argument made to the jury and the amount of the verdict.” 277 Ala. at 133, 167 So.2d at 694. Dees’s counsel did not specifically reference the mortality tables in his closing argument, but he did argue that “[t]here’s no evidence that she wouldn’t have worked for the rest of her life” at Guyoungtech. The $15,000 verdict in Collins was remitted by the trial court to $12,000. Given the size of the compensatory-damages award in this case — $1 million remitted by the trial court to $300,000— the concern of the Collins Court about the effect of an improperly admitted mortality table on the size of the mental-anguish verdict applies here.

4. Verdict Form

The verdict form distinguished between compensatory damages and punitive damages but did not ask the jury to itemize the individual components of the compensatory-damages award: lost future wages and mental anguish. Thus, the compensatory-damages award of $1 million (remitted to $300,000) might have been entirely for either lost future wages or mental anguish, or for some indiscernible combination of the two. If the trial court’s evidentiary and instructional errors were confined solely to the calculation of lost wages or solely to the calculation of mental-anguish damages, we would not be in a position to review the compensatory-damages verdict. In that situation, the verdict could have represented solely the type of damages unaffected by the trial court’s error.

Reviewing a case in which the verdict form did not distinguish between compensatory damages and punitive damages, this Court declined to speculate as to how the damages were apportioned between those two components. “We cannot say whether the [verdict] is right or wrong; we do not know what it represents, and it could be either right or wrong, i.e., either appropriate or excessive.” City Realty, Inc. v. Continental Cas. Co., 623 So.2d 1039, 1046 (Ala.1993). In that case, the Court also declined to remand the case for itemization of the verdict “because the parties did not object to the undesignated verdict at trial.” Id.

In Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48 (Ala.Civ.App.1996), the trial court refused the defendants’ request for a verdict form differentiating between compensatory damages and punitive damages. The Court of Civil Appeals, affirming the judgment entered on the verdict, found the error to be harmless because the evidence supported assigning the entire award either to compensatory damages or to punitive damages. “Obviously, since both extremes of compensatory and punitive damages are supported by the evidence, any combination of the two also is supported by the evidence.” 697 So.2d at 52. Conversely, in this case, because the lost-wages and mental-anguish prongs of the compensatory-damages award are both infected by error, we may reverse without knowing how the jury allotted damages between lost wages and mental anguish. To paraphrase the Coastal court: Because neither extreme of lost-wages or mental-anguish damages is supported by the’ evidence, any combination of the two also is not supported by the evidence.

5. Remedy

Dees argued at trial that the mortality tables were offered into evidence to support both lost-wages and mental-anguish damages. Guyoungtech objected to their use on both grounds. The trial court’s instruction did not differentiate between the use of the mortality tables to compute the two types of damages, stating generically that “the mortality table[s] may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent.” The mortality tables were erroneously admitted in regard to mental-anguish damages because the permanence of a subjective injury cannot be determined without expert medical testimony. The mortality table were erroneously admitted in regard to future-lost-wages damages because Dees offered no evidence of permanent unem-ployability ascribable to the termination of her employment at Guyoungtech. Accordingly, we reverse the award of compensatory damages.

C. Punitive Damages

Because we are reversing the compensatory-damages award, we must also reverse the punitive-damages award. Compensatory or nominal damages must first be awarded before punitive damages can be assessed. Life Ins. Co. of Georgia v. Smith, 719 So.2d 797, 806 (Ala.1998). Because a jury may possibly consider awarding punitive damages on any retrial of this case, we offer some guidance to the trial court to avoid an evidentiary error that affected these proceedings and to which Guyoungtech objected. At trial, the foundation of Dees’s argument that punitive damages should be awarded was that Guyoungtech had not timely reported many workers’ compensation claims to its insurance carrier. See Rule 480-5-1-.01, Ala. Admin. Code (Dep’t of Labor) (requiring filing of “First Report of Injury” form within 15 days of claim). Dees presented evidence indicating that this policy was a conscious decision by management at Guy-oungtech to reduce insurance costs. As the trial court pointed out in its post-judgment order, such a policy violates Alabama law, which requires the reporting of all workplace injuries to the State. Alternatively, a company may self-insure, as Guyoungtech apparently did for some injuries, but Guyoungtech did not meet the legal requirements to self-insure. See Rule 480-5-2-.02, Ala. Admin. Code (Dep’t of Labor).

Dees argued that the evidence of non-reporting of injuries demonstrated Guy-oungtech’s callousness toward injured workers and was probative in particular of Guyoungteeh’s animus toward Dees as an injured worker, thus justifying a large punitive-damages award. Guyoungtech objected to admission of this evidence, arguing that its failure to report small workers’ compensation claims had no effect on Dees because, it reasoned, Guy-oungtech reported Dees’s injury to its carrier and she had received worker’s compensation medical and lost-wage benefits. The trial court erred in allowing the jury to consider behavior of Guyoungtech unrelated to Dees’s claimed injury as a basis for imposing punitive damages.

“[T]he most important indici-um of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).

“A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation.of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of the reprehensibility analysis....
“... The reprehensibility guidepost does not permit courts to expand the scope of the case so that a defendant may be punished for any malfeasance .... ”

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-24, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Several years later the United States Supreme Court reiterated that “we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others.” Philip Morris USA v. Williams, 549 U.S. 346, 354, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). Mowing a jury to base' its punitive-damages award “in part upon its desire to punish the defendant for harming persons who are not before the court” “would amount to a taking of property from the defendant without due process.” 549 U.S. at 349. See also Williams v. ConAgra Poultry Co., 378 F.3d 790, 797 (8th Cir.2004) (citing State Farm for the proposition that “courts cannot award punitive damages to plaintiffs for wrongful behavior that they did not themselves suffer”); § 6-11-20(a), Ala.Code 1975 (stating that to receive punitive damages a plaintiff must prove “by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff” (emphasis added)).

Guyoungtech sent a timely “First Report of Injury” for Dees to its workers’ compensation insurance carrier, who then paid worker’s compensation benefits to Dees. Mhough the court allowed Dees to present evidence showing that Guyoung-tech’s carrier had denied payment of benefits to injured workers whose “First Reports of Injury” forms were untimely filed, the jury should not have been allowed to consider that fact in assessing punitive damages. This conduct, which concerned “other parties’ hypothetical claims,” did not harm Dees. State Farm, 538 U.S. at 423. Consideration of potential malfeasance arising from these late-filed claims expanded the scope of the case to facts unrelated to Dees’s injury and allowed an award of punitive damages for “defendant’s dissimilar acts, independent from the acts upon which liability was premised.” State Farm, 538 U.S. at 422.

The trial court allowed testimony, admitted exhibits, and permitted argument about these dissimilar acts affecting non-parties. Near the beginning of his opening statement, counsel for Dees stated: “This is a case about holding this company responsible for the way they treat this employee and other employees.” (Emphasis added.) At the close of his opening statement, counsel for Dees reiterated: “This case is about two things: It’s about what they did to her and it’s about what they did to other people.” (Emphasis added.) The trial court instructed the jury that “you may consider the defendant’s general policy and practice with respect to other employees” and gave an extensive critique of business practices that did not affect Dees:

“The law of Alabama does not allow a company to decide not to report claims and call itself self-insured unless it is approved by the State of Alabama Department of Industrial Relations.[]
“... [T]he laws of the State of Alabama do not allow any company at any time to engage in any activity to stop first report of injury forms from being filed with the Department of Industrial Relations Workers’ Compensation Division.”

By allowing evidence, argument, and jury instructions — over objections from Guy-oungtech — that permitted and encouraged the jury to punish Guyoungtech for allegedly wrongful behavior to other employees that caused Dees no harm, the trial court erred.

D. Scope of a New Trial

Because the trial court erred in admitting into evidence the mortality tables to support Dees’s claim for compensatory damages, we are reversing its judgment and remanding the case for a new trial on both the liability and the compensatory-damages and punitive-damages issues. “A partial new trial ... may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.” Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931). Where “the question of damages ... is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty,” id., a new trial should be ordered on all issues. In this case a determination of compensatory damages cannot be made without rehearing the evidence of liability. A jury cannot evaluate mental-anguish damages or lost future wages without hearing testimony about the circumstances surrounding the termination of Dees’s employment.

Other courts have held that the question of punitive damages is too intertwined with the issue of liability for one to be tried without the other. “[A]n award of punitive damages should rest on the jury’s assessment of all the evidence in the case. Hence, the issue of punitive damages is so intertwined with the other issues that it should be retried with them.” Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376, 1389 (5th Cir.1977). See also Mason v. Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir.1991) (“A punitive damage[s] claim is not an independent cause of action or issue separate from the balance of a plaintiffs case. It is part and parcel of a liability determination.... ”). Under Alabama law, an award of punitive damages requires proof “by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.” § 6-11-20(e), Ala.Code 1975. The evidence affecting liability is thus intermingled with the evidence necessary to determine punitive damages.

Because a determination of both compensatory damages and punitive damages is dependent upon consideration of the evidence that supports a finding of liability, a new trial on all issues will best serve the ends of justice. Because “the issues in this case are interrelated, thereby complicating our separation of them, we believe justice will be best served by a reversal and retrial of the case in its entirety.” Beneficial Mgmt. Corp. of America v. Evans, 421 So.2d 92, 98 (Ala.1982).

TV. Conclusion

We reverse the judgment of the trial court and remand the case for a new trial on all issues. We caution the trial court that on remand evidence about business practices that caused Dees no harm is not admissible for the purpose of assessing punitive damages.

REVERSED AND REMANDED.

WISE, J., concurs.

MURDOCK, J., concurs specially.

STUART, BOLIN, and BRYAN, JJ., concur in the result.

PARKER and MAIN, JJ., dissent.

MURDOCK, Justice

(concurring specially).

I concur. I write separately to be clear that I do not believe that an employee’s “failure to look for work” necessarily prohibits him or her from asserting a claim for damages based on lost wages resulting from an unlawful termination of the employee’s employment under § 25-5-11.1, Ala.Code 1975. Instead, I read the main opinion’s statement regarding such a failure in the present case as simply explaining the nature of the evidence in this particular case and, specifically, the context within which this Court should consider the absence in the record of any evidence indicating that Elaine Dees’s continued unemployment has been caused by the termination of her employment by Guyoungtech USA, Inc.

I also write separately to comment upon the issue of Guyoungtech’s failure to report certain smaller workers’ compensation claims to the company that administers • its workers’ compensation claims. The main opinion correctly notes that Dees’s claim for worker’s compensation benefits, both medical and lost wages, was reported to the administrator and, on this basis, concludes that Guyoungtech’s failure to report other employees’ claims for workers’ compensation benefits was not properly admissible in relation to the issue of punitive damages. I do not wish to be understood as implying that I necessarily agree with the converse proposition, i.e., that had Guyoungtech in fact failed to report Dees’s injury, that failure would have been admissible as a basis for awarding punitive damages.

The gravamen of the claim in this case is the termination of Dees’s employment, not some act or omission by Guyoungtech that resulted in a denial to Dees of worker’s compensation benefits. Accordingly, even if Guyoungtech had failed to report Dees’s injury, that omission would not have been the conduct for which Dees seeks recovery from Guyoungtech in this case. As the main opinion, itself, notes, “ ‘[a] defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages.’ ” 156 So.3d at 385 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (emphasis added)).

In addition, in discussing Guyoungtech’s failure to report certain workers’ compensation claims, the main opinion quotes further from State Farm, as follows:

“‘A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of the reprehensibility analysis....’”

156 So.3d at 385 (quoting State Farm, 538 U.S. at 423 (emphasis added)). I am not persuaded that Guyoungtech’s failure to report certain other workers’ compensation claims warrants the application of such adjectives as “unsavory” and “reprehensible.” The record indicates merely that Guyoungtech made the decision to pay certain smaller workers’ compensation claims out of its own pocket, rather than filing a claim with its insurer (in effect, self-insuring certain claims). Although this may or may not be a technical violation of some workers’ compensation statute or regulation, the fact remains that those claims were indeed paid by Guy-oungtech. Accordingly, I find nothing in this practice, at least as it related to Guy-oungtech’s employees such as Dees, that could be deemed unsavory, reprehensible, or otherwise a basis for a punitive-damages award. More specifically, I find nothing in this conduct to justify a conclusion that Guyoungtech “engaged in oppression, fraud, wantonness, or malice with regard to” any such employee, as would be required for an award of punitive damages under Ala.Code 1975, § 6-11-20(a).

PARKER, Justice

(dissenting).

I concur with the conclusion in the main opinion that the evidence supported the jury’s finding that Guyoungtech USA, Inc., terminated Elaine Dees’s employment in violation of Alabama’s wrongful-termination statute. I respectfully dissent, however, from its reversal of the judgment as to liability. I also dissent from the portions of the main opinion concerning the award of damages. I would affirm the judgment; therefore, I dissent.

The main opinion reverses the trial court’s judgment on the compensatory-damages award based on its conclusion that the improper admission into evidence of the mortality tables potentially injuriously affected the substantial rights of Guyoungtech. In Atkins v. Lee, 603 So.2d 937, 946 (Ala.1992), this Court held:

“We will not reverse a judgment ‘unless ... the error complained of has probably injuriously affected substantial rights of the parties.’ Rule 45, Ala. R.App. P.; Bianco v. Graham, 268 Ala. 385, 388, 106 So.2d 655, 657 (1958). The appellant bears the burden of proof on this issue. Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244 (1945).”

(Emphasis added.) I respectfully dissent because the main opinion has prematurely shifted the burden of proof to Dees on this issue; Guyoungtech has not demonstrated that the improper admission of the mortality tables probably injuriously affected its substantial rights. Even though Guyoung-tech has not carried its burden of demonstrating that the admission of the mortality tables probably injuriously affected its substantial rights, the main opinion shifts the burden to Dees to demonstrate that the improper admission of the mortality tables definitely did not affect Guyoung-tech’s substantial rights. The main opinion creates a new standard in that an appellant no longer has to demonstrate that an error occurred, but only that an error potentially occurred.

In the trial court, Dees sued Guyoung-tech alleging wrongful termination and seeking damages for lost wages and mental anguish. The jury returned a general verdict in favor of Dees, awarding $1,000,000 in compensatory damages. Concerning the award of compensatory damages, the trial court held as follows:

“In addition, Guyoung[tech] did not request a special interrogatory or verdict form to itemize and differentiate between lost wages, compensatory damage[s,] and mental anguish damages. Alabama Code [1975,] Section 6-11-1 on Itemization provides that ‘[i]n any civil action based upon tort ... the damages assessed by the factfinder shall be itemized as follows: (1) Past damages. (2) Future damages. (3) Punitive Damages.’ []
“While [Guyoungtech] requested itemization between compensatory and punitive damages, it did not request itemization between past and future damages related to mental anguish, and it did not request itemization of compensatory damages for future lost earnings. In Coastal Bail Bonds v. Cope, 697 So.2d 48, 51 (Ala.Civ.App.1996), the court held that the failure to request itemization is attributable as an error of the defendant, not the trial judge. See, also, Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 46 (Ala.1990) (‘Although there is no dispute that the jury did not utilize itemized verdict forms, there is no evidence that this error was brought to the attention of the trial court.’) In Dunlop Tire Corp. v. Allen, 725 So.2d 960, 968 (Ala.1998), the Court affirmed a compensatory damages award of $735,000 in future damages where the defendant did not request a jury form which would have addressed its concerns, reasoning, ‘if Dunlop had thought that future damages were not recoverable in this action, it should have asked to have that category omitted from the itemization.’
“Finally, in Continental Eagle Corp.[ v. Mokrzycki, 611 So.2d 313 (Ala.1992) ], such apportionment was defined by the jury. In this case Guyoung[tech] did not request apportionment. The damages could be for mental anguish damages alone.
“... Dees was required to present ‘evidence tending to show the extent of damages as a matter of just and reasonable inference.’ Lindy Mfg. Co. v. Twentieth Century Mktg., 706 So.2d 1169, 1178 (Ala.l997)(quoting C. Gamble, Alabama Law of Damages 7-1 (2d ed.1988)). When proving general damages, the standard is relevancy, not ‘reasonable certainty.’ Med Plus Properties v. Colcock Constr. Group, 628 So.2d 370, 377 (Ala.1993)(citing Gamble; McElroy’s Alabama Evidence [§ ] 21.01(1) (4th ed.1991)). The jury properly considered the issue of damages as submitted to them by this Court.”

On appeal, Guyoungtech does not challenge the trial court’s holding that Guy-oungtech failed to “request a special interrogatory or verdict form to itemize and differentiate between lost wages ... and mental anguish damages.” Neither does Guyoungtech challenge the trial court’s statement that “[t]he damages [awarded by the jury] could be for mental anguish damages alone.” In fact, there is nothing in the clerk’s record indicating what portion of the jury’s award of compensatory damages was for future damages and what portion was for past damages, and Guy-oungtech offers no explanation. There is no way to determine from the general compensatory-damages award whether the jury awarded any future damages; the amount awarded could have been for her mental anguish suffered from the time Dees was terminated from her employment until trial.

Instead, Guyoungtech argues only that the admission of the mortality tables was improper. However, unless Guyoungtech has demonstrated that its substantial rights were probably injuriously affected by the improper admission of the mortality tables, Guyoungtech is not entitled to have the trial court’s judgment reversed. As set forth by the trial court, there was a method available to Guyoungtech to determine if its substantial rights had been injuriously affected by the improper admission of the mortality tables, but Guy-oungtech chose not to avail itself of that protection; it is not this Court’s function to make arguments for a party who chooses not to make those arguments for itself.

The main opinion recognizes that if the jury’s verdict “could have represented solely the type of damages unaffected by the trial court’s error,” then “we would not be in a position to review the compensatory-damages verdict.” 156 So.3d at 884. The main opinion then concludes that “the lost-wages and mental-anguish prongs of the compensatory-damages award are both infected by error.” 156 So.3d at 384. However, the main opinion offers no explanation as to why an award of mental-anguish damages would have been affected by the improper admission of the mortality tables.

Therefore, based on Guyoungtech’s failure to demonstrate that the improper admission of the mortality tables probably injuriously affected its substantial rights even though Guyoungtech had available to it the protection of § 6-11-1, Ala.Code 1975, I respectfully dissent from the holding in the main opinion that the admission of the mortality tables was error. Dees should not pay the cost of Guyoungtech’s failure to properly defend the action. The main opinion improperly shifts to Dees the burden of proof that the law places upon Guyoungtech.

      . At trial Dees did not seek compensation for past lost wages.

      . A mortality table is "[a]n organized chart of statistical data indicating life expectancies...." Black's Law Dictionary 41 (9th ed.2009) (entry for “actuarial table”).

      . Nor do I see any relationship in this case between any practice of self-paying small workers’ compensation claims, or being late in filing such claims, and any pattern of terminating the employment of employees who have filed such claims.

      . Section 6-11-1, Ala.Code 1975, states in full:
      “In any civil action based upon tort and any action for personal injury based upon breach of warranty, except actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, the damages assessed by the factfinder shall be itemized as follows:
      “(1) Past damages.
      "(2) Future damages.
      “(3) Punitive damages.
      “The factfinder shall not reduce any future damages to present value. Where the court determines that any one or more of the above categories is not recoverable in the action, those categories shall be omitted from the itemization.”


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    Mike GRANT et al. v. BRELAND HOMES, LLC, and D.R. Horton, Inc.—Huntsville.
    1121405.
    Supreme Court of Alabama.
    June 13, 2014.

      Jason P. Statum and Joel P. Jaqubino of Paulus Jaqubino, P.C., Huntsville, for appellants.
    George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellees.
   BRYAN, Justice.

Mike Grant, Barry Leake, Scott Schu-macher, and Diane Schumacher (referred to collectively hereinafter as “the plaintiffs”) appeal a summary judgment entered in favor of Breland Homes, LLC (“Bre-land”), and D.R. Horton, Inc.-Huntsville (“Horton”). For the reasons set forth herein, we dismiss the plaintiffs’ appeal.

Facts and Procedural History

The Reserve is a subdivision in Madison County that comprises four smaller communities or subdivisions. One of the subdivisions or communities within The Reserve is named Oak Grove. Each of the four plaintiffs owns a house in Oak Grove, and all four are members of The Reserve Subdivision Home Owners’ Association (“the HOA”). Gulf Coast Development, LLC (“Gulf Coast”), is the original owner and developer of The Reserve. On or about May 12, 2005, a “Declaration of Protective Covenants for The Reserve Subdivision” (“the Declaration”) was filed in the Madison Probate Court by Gulf Coast, the declarant. The Declaration provides, in part:

“No exterior construction, addition, erection, or alteration shall be made unless and until plans ... have been submitted in writing to and approved by an Architectural Review Committee (‘ARC’) established by the Board [of Directors of the HOA]....
“... The Architectural Review Committee shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction in violation of these restrictions.”

The Declaration also contains provisions that leave certain powers to Gulf Coast, as the declarant. For example, the Declaration provides that Gulf Coast may unilaterally amend the Declaration for any purpose, so long as Gulf Coast has the right to subject additional property to the Declaration and the amendment does not adversely affect the title of an owner of a lot in The Reserve. Further, the Declaration provides that Gulf Coast, so long as it has the option to subject additional property to the Declaration, may, “in the exercise of its discretion, permit deviations from the restrictions contained in this Declaration, the by-laws, the rules and regulations, the use restrictions, and the design guidelines.”

In August 2012, Horton purchased the assets of Breland, including lots 13 and 26 in Oak Grove. Pursuant to a licensing agreement, Horton acquired the right to use the trade name “Breland Homes.” On September 14, 2012, Horton, doing business under that trade name, submitted an application for construction-design review to The Reserve Architectural Review Committee (“the ARC”) concerning lot 13 in Oak Grove. On October 10, 2012, the chair of the ARC notified Horton that the plan submitted with its application “was not approved for construction” because it was not aesthetically comparable to other houses in Oak Grove. The ARC informed Horton that it was recommending “an immediate cease construction order.” Horton responded by stating that, given that the ARC had previously approved the same construction plan, Horton planned to proceed with the construction plan submitted. On October 12, 2012, the advisory board of directors of the HOA sent a letter demanding that Breland Homes cease further construction activity on lot 13 in Oak Grove.

On or about October 9, 2012, Horton, doing business under the trade name “Bre-land Homes,” submitted an application for construction-design review to the ARC regarding lot 26 in Oak Grove. On October 24, 2012, the advisory board of the HOA sent a letter to Horton demanding that it cease construction activity on lot 26 until the ARC approved its application. On November 2, 2012, the ARC notified Horton that it had not approved its construction application for lot 26 because, among other reasons, it was not aesthetically similar to other houses in Oak Grove.

On November 5, 2012, Jeff Enfinger, the manager of Enfinger Steele Development, LLC, the controlling member of Gulf Coast, informed the ARC and the HOA that the construction applications submitted by Horton complied with the covenants and restrictions in the Declaration and that the houses being built on lots 13 and 26 were “much bigger” than the restrictions required and approved the construction applications for lots 13 and 26.

On November 13, 2012, the plaintiffs filed a complaint against Breland, Gulf Coast, and the HOA seeking a judgment declaring that Gulf Coast did not have power to “veto” the actions of the ARC, that Breland was in violation of the protective covenants in the Declaration, and that “the Board has the power to take action as it deems necessary to remedy such violations.” On the same date, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. The plaintiffs requested that the trial court enter an order pursuant to Rule 65(b), Ala. R. Civ. P., “enjoining and restraining ... Breland ... from continuing construction on Lots 13 and 26 in The Reserve Subdivision, Oak Grove Subdivision,” and, after a hearing, “make the relief granted in this Court’s temporary restraining order extend to a preliminary injunction and a permanent injunction.”

On January 3, 2013, Gulf Coast filed an amendment to the Declaration in the Madison Probate Court. The amendment stated, among other things:

“[T]he ARC shall have no authority to approve or disapprove the construction, alteration, addition, or erection of structures on Lots owned by Breland or Horton. The approval or disapproval of any such construction or improvements to be performed on Lots owned by Breland or Horton shall be exercised exclusively by [Gulf Coast] and the decisions of [Gulf Coast] with respect to Lots owned by Breland and Horton shall be final and binding on the Board [of Directors of the HOA], the ARC, and the Owners.”

On January 4, 2018, the plaintiffs filed an amended complaint adding Horton as a defendant in their declaratory-judgment action, and on January 14, 2013, the plaintiffs filed an amended motion for a temporary restraining order and a preliminary injunction against Horton. After conducting a hearing, the trial court, on February 7, 2013, entered the following order denying the plaintiffs’ request for temporary injunctive relief:

“The court finds that Defendant Gulf Coast Development Company, LLC, based upon the Declaration of Protective Covenants admitted as plaintiffs’ Exhibit 1 allows for the Defendant Gulf Coast Development Company, LLC, to- amend the Declaration for any purpose without the consent of the homeowners. Furthermore, the Declarant may permit deviations from the restrictions contained in the Declaration or by-laws.
“Therefore, based upon this threshold determination, the Court finds that the plaintiffs are not entitled to their claim for injunctive relief.”

The plaintiffs filed a third amended complaint on February 20, 2013. The plaintiffs sought a judgment declaring that Gulf Coast does not have the power to veto the actions of the ARC; that Breland and Horton were in violation of the protective covenants in the Declaration; that the HOA Board has the power to remedy such violations; that the actions of Gulf Coast were unconscionable and in violation of mutually beneficial protective covenants and restrictions; that the January 3, 2013, amendment to the Declaration • is void; that Gulf Coast acted unreasonably by amending the Declaration; and that “the concerted scheme of [Gulf Coast], Breland, and Horton to file the ... amendment after the commencement of this declaratory judgment action constitutes a civil conspiracy.” The plaintiffs further sought a permanent injunction enjoining “the defendants ... from the continued construction of homes in the subdivision without ARC oversight.”

On March 20, 2013, Breland and Horton filed a motion for a summary judgment, arguing that a summary judgment in their favor was proper for primarily two reasons: (1) Gulf Coast, as the declarant in the Declaration, had the authority to grant a deviation from the restrictions contained in the Declaration, and (2) Gulf Coast had the power to,amend the Declaration for any purpose. Thus, they argued, a summary judgment should be entered in their favor for the same reason the trial court denied the plaintiffs’ request for temporary injunctive relief, i.e., that Gulf Coast acted within its authority either to grant a deviation from the restrictions in the Declaration or to amend the Declaration to remove Breland and Horton from ARC oversight and approval. Gulf Coast also filed a motion for a summary judgment adopting the arguments in Breland and Horton’s summary-judgment motion.

On the same date, the plaintiffs filed a motion for a summary judgment as to all claims pending against Breland, Horton, Gulf Coast, and the HOA. The trial court conducted a hearing on the pending summary-judgment motions, and, on July 23, 2013, the trial court entered an order stating:

“[T]he court is of the opinion that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law as to the claims asserted by the plaintiffs. Furthermore, the court finds that the plaintiffs are not entitled to judgment as a matter of law regarding their motion for summary judgment; therefore, the plaintiffs’ motion for summary judgment is denied.”

The plaintiffs filed a motion for relief from judgment, purportedly pursuant to Rules 59(e) and 60(b)(6), Ala. R. Civ. P. Breland, Horton, and Gulf Coast filed a response to the plaintiffs’ motion and moved the trial court to certify the summary judgment in their favor as final pursuant to Rule 54(b), Ala. R. Civ. P. On August 26, 2013, the trial court entered an order denying the plaintiffs’ motion for relief from judgment and certifying the summary judgment in favor of Breland and Horton only as final pursuant to Rule 54(b). Thereafter, the plaintiffs filed a notice of appeal naming Breland and Horton as the appellees.

Discussion

On appeal, the plaintiffs challenge the trial court’s denial of their motion for relief from judgment without a hearing; the trial court’s February 7, 2013, denial of their motion for injunctive relief; and the summary judgment entered in favor of Breland and Horton. However, we cannot consider the merits of those arguments because, we conclude, the trial court’s Rule 54(b) certification was improper and, thus, the plaintiffs’ appeal is due to be dismissed. See generally Fuller v. Birmingham-Jefferson Transit Auth., 147 So.3d 907, 915 (Ala.2013) (concluding that “the trial court’s certification of finality under Rule 54(b) is ineffective, and, there being no final judgment, both the appeal and cross-appeal are dismissed for lack of jurisdiction”).

“With respect to the finality of judgments adjudicating fewer than all claims in a case, Rule 54(b), Ala. R. Civ. P., provides:
“ ‘When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.’
“ ‘If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.’ Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is ‘no just reason for delay.’ Rule 54(b); see also Scrushy v. Tucker, 955 So.2d 988, 996 (Ala.2006) (“Whether there was “no just reason for delay” is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.’).
“A trial court exceeds its discretion in determining that there is ‘no just reason for delay’ when ‘the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala.2009) (‘ “It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.” ’ (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))).”

Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So.3d 419, 422-23 (Ala.2011).

In Smith v. Slack Alost Development Services of Alabama, LLC, 32 So.3d 556 (Ala.2009), Slack Alost sued Tony Smith and Albert Weems, alleging breach of contract for failing to complete their condominium purchase. Smith & Weems Investments, LLC, was added as a party because it was the entity' named in a standby letter of credit obtained as part of the contract for the purchase of a condominium unit. Slack Alost moved for a summary judgment against Weems, but not against Smith or Smith & Weems Investments. The trial court granted the motion and certified the summary judgment as final pursuant to Rule 54(b). Smith and Smith & Weems appealed. On appeal, this Court held:

“In the instant case, it is apparent that at least some of the issues presented in the still pending claim against Smith are the same as the issues presented in • the appeal now brought by Smith and Smith & Weems Investments. Weems and Smith are business partners accused of breaching the same real-estate contract, and ... Weems and Smith have both argued that Slack Alost never presented them with the original offering statement or the amended offering statement for the Bel Sole condominium development, in violation of § 35-8A-408. In Centennial Associates, Ltd.[ v. Guthrie, 20 So.3d 1277 (Ala.2009)] we stated that ‘ “[i]t is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.” ’ 20 So.3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court’s stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b).”

32 So.3d at 562-63.

In the present case, review of the nonfi-nal summary judgment in favor of Gulf Coast and of the summary judgment entered in favor of Horton and Breland that is before this Court on appeal requires resolution of the same threshold issue: whether Gulf Coast had authority to approve the construction applications for lots 13 and 26 in Oak Grove when the same applications had already been denied by the ARC. Horton, Breland, and Gulf Coast presented the same arguments in their summary-judgment motions and the same defenses to the plaintiffs’ claims. Although the summary judgment in favor of Breland and Horton is before this Court on appeal, the summary judgment in favor of Gulf Coast is not. Because the threshold issue in the judgment before this Court is identical to the threshold issue in a claim still pending before the trial court, we conclude that the claims are “ ‘ “ ‘so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ ” Loachapoka Water Auth., 14, So.3d at 423 (quoting Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006)). Further, as in Smith, supra, “[r]epeated appellate review of the same underlying facts would be a probability in this case.” 32 So.3d at 562. Thus, “in light of this Court’s stated policy disfavoring appellate review in piecemeal fashion,” id. at 562-63, we conclude that the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying as final pursuant to Rule 54(b) the summary judgment in favor of Horton and Breland. Accordingly, the plaintiffs’ appeal is dismissed. See Stephens v. Fines Recycling, Inc., 84 So.3d 867, 879 (Ala. 2011) (holding that the trial court’s Rule 54(b) certification was erroneous and concluding that, “[i]n the absence of a final judgment, this appeal is due to be dismissed”).

APPEAL DISMISSED.

MOORE, C.J, and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . The record demonstrates that the HOA was served with the plaintiffs’ complaint, that the HOA filed an answer to the plaintiffs’ complaint, and that no judgment disposing of the claims against the HOA had' been entered by the trial court.


author: STUART, Justice.

text:
    Ex parte AUTOSOURCE MOTORS, LLC. (In re Stephanie Michelle Chamberlain v. AutoSource Motors, LLC).
    1130255.
    Supreme Court of Alabama.
    June 13, 2014.

      Charles N. Miller and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for petitioner.
   STUART, Justice.

AutoSource Motors, LLC (“Auto-Source”), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court (“the trial court”) (1) to vacate its order denying AutoSource’s- motion to dismiss the action filed against it by Stephanie Michelle Chamberlain for lack of personal jurisdiction and (2) to enter an order granting AutoSource’s motion to dismiss for lack of personal jurisdiction. We grant the petition and issue the writ.

I. Facts and Procedural History

On September 2, 2011, Chamberlain filed in the trial court a complaint against AutoSource. Chamberlain’s complaint set forth the following statement of facts:

“5. Ms. Chamberlain saw an advertisement for an alleged. 2008 Ford Mustang Coupe [automobile] on the Internet.
“6. Auto Source Motors offered the vehicle as a rebuilt vehicle at a competitive price, which interested Ms. Chamberlain.
“7. Ms. Chamberlain contacted Auto Source Motors by telephone and was told by employees, representatives, and/or contractors of [AutoSource] that the vehicle she was interested in was a rebuilt vehicle.
“8. Specifically, Auto Source Motors, through its employees, contractors, and representatives, told Ms. Chamberlain that there existed a salvage title for the car that was able to be retitled in the state of Alabama, and that as specialists in the rebuilding and resale of vehicles, they promised her that the vehicle was able to be retitled in Alabama.
“9. Based on these representations, Ms. Chamberlain traveled to Utah to the dealership.
“10. Once there, Ms. Chamberlain again inquired as to the details of their phone conversation described in paragraph 8.
“11. Again, [AutoSource] restated what was stated above in paragraph 8.
“12. Based on the representations made in. paragraph 8 both on the telephone and at the dealership Ms. Chamberlain purchased the vehicle.
“13. When Ms. Chamberlain attempted to title the vehicle she discovered that in reality (a) the title was a junk title, not a salvage title; (b) junk titles can never be turned into salvage titles; (c) junk titles can never be titled; (d) the vehicle was not in reality a 2008 model, but was instead a hodgepodge of components from all manner of different years of vehicles.”

Based on the facts set forth above, Chamberlain asserted counts of breach of contract, misrepresentation, and suppression against AutoSource. Chamberlain’s only allegation in her complaint regarding jurisdiction was as follows:

“4. Jurisdiction is proper in that Auto Source Motors took actions aimed at Alabama citizens in the course of its business and in particular sought to avail itself of use of the laws of the state of Alabama by claiming its cars could be titled in the state of Alabama as an incentive to Ms. Chamberlain, a citizen of Alabama, to buy one of their vehicles.”

On December 13, 2012, Chamberlain filed an affidavit with the trial court in which she stated:

“1. My name is Stephanie Michelle Chamberlain. I am over the age of 19 and currently reside in Harris County Texas. I moved from Montgomery County Alabama several months after I filed this case.
“2. Auto Source Motors is located in Woods Cross, Utah. Auto Source Motors markets its cars over the Internet. It holds itself out as a specialist in rebuilt cars, with a particular knowledge necessary to be able to rebuild cars and have them titled in other states.
“3. I saw an advertisement for an alleged 2008 Ford Mustang Coupe on the Internet.
“4. Auto Source Motors claimed the vehicle was rebuilt and offered it at a competitive price, which interested me.
“5. I contacted Auto Source Motors by telephone and was told that the vehicle was a rebuilt vehicle.
“6. Specifically, Auto Source Motors workers told me that there was in existence a salvage title for the car that was able to be re-titled in the State of Alabama and that as specialists in the rebuilding and resale of vehicles, they promised me that the vehicle was able to be re-titled in Alabama.
“7. Based on these statements to me, I went on the long trip to Utah to the dealership.
“8. Once there, I asked the same questions again and was again told the same thing as in paragraph 5 and 6.
“9. Based on the statements made to me over the telephone and in-person at the car dealership in Utah, I purchased the vehicle.
“10. When I got the vehicle back to Alabama, I tried to get the title for it, like Auto Source Motors said I could.
“11. I then discovered that in reality the title was a junk title, not a salvage title, and that junk titles can never be turned into salvage titles. I also discovered that junk titles can never be titled at all.
“12. I also discovered that the vehicle was not really a 2008 model, but was actually a mixed up combination of components from all manner of different years of vehicles.
“13. As a result of being tricked, I obtained a loan for the vehicle, for which I’m still responsible; incurred the cost of the trip to and from Utah; had to pay for the insurance, repairs and upkeep; and I have lost hours and hours of my personal and work time dealing with the finance company and the State of Alabama trying to get the car titled in trying to work out an arrangement to pay for or sell the vehicle once I discovered the title problem and that the car was a combination of components from all manner of different years of vehicles.
“14. The documents showing my loan costs, cost of the trip to and from Utah to get the car and bring it back, the cost of insurance, repairs, and upkeep are attached as exhibit A.
“15. I am stuck on the loan on this car, because I cannot get it titled. Without the title I cannot resell it, and I cannot even legally drive it because I cannot get registration for the vehicle or insurance for it. I’m stuck with a car that I cannot legally put on the road yet I have to continue to pay for it fully.”

On October 18, 2013, AutoSource, pursuant to Rule 12(b)(2), Ala. R. Civ. P., filed a motion to dismiss Chamberlain’s action for lack of personal jurisdiction. Specifically, AutoSource argued that it did not have sufficient minimum contacts with the State of Alabama to subject it to suit in the Montgomery Circuit Court. AutoSource set forth the following facts in its motion to dismiss in support of its lack-of-personal-jurisdiction argument:

“1. [Chamberlain] alleges various causes of actions that arose out of the purchase of a 2008 Ford Mustang Coupe advertised on the internet by Auto-source. (Complaint; [Chamberlain’s] affidavit).
“2. Autosource is a Limited Liability Company duly registered in the State of Utah, located in Utah with its principal place of business located in West Woods Cross, Utah. (Affidavit of W. Scott Kjar, [Ex. A]).
“3. Autosource owns no property in the State of Alabama and conducts no business activities in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]).
“4. Autosource is not registered, qualified or licensed to do business in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]).
“5. Autosource is not required to, nor does it pay taxes in the State of Alabama, Autosource does not own any property or assets in the State of Alabama, it does not maintain offices in the State of Alabama, it does not have any employees in the State of Alabama, and it does not have a telephone listing in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]).
“6. Autosource did not knowingly or intentionally markets [sic], solicits [sic] or advertises [sic] products or services in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]).
“7. Autosource has not had any prior business dealings with [Chamberlain] prior to the transaction made the basis of this lawsuit. (Affidavit of W. Scott Kjar, [Ex. A]).
“8. Prior to the transaction with [Chamberlain] made the basis of this lawsuit, Autosource had not ever knowingly or intentionally sold any goods or services to any entity or individual from the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]).
“9. [AutoSource] advertised the subject vehicle on its website, which is a national/international internet website dedicated to assisting individuals and businesses in the buying of automobiles. (Affidavit of W. Scott Kjar, [Ex. A]).
“10. [Chamberlain] initiated contact with [Auto-Source] concerning the purchase of the subject vehicle from [Auto-Source], who was, at all times material hereto, located in Utah. (Complaint, [Chamberlain’s] affidavit, affidavit of W. Scott Kjar, [Ex. A]).
“11. [Chamberlain] went to Auto-source in Utah to purchase the vehicle. (Complaint, [Chamberlain’s] affidavit, affidavit of W. Scott Kjar, [Ex. A]).
“12. [Chamberlain] negotiated the purchase in Utah, and left the dealership with the vehicle. (Affidavit of W. Scott Kjar, [Ex. A]).”

AutoSource attached to its motion to dismiss the affidavit of its then president, W. Scott Kjar, which stated:

“My name is W. Scott Kjar. I am over 19 years of age. I have personal knowledge of the matters set forth herein, and I am competent to give testimony in this cause. At the time of the subject transaction, I was the President of Auto-source Motors, LLC.
“I am a bona-fide resident citizen of the State of Utah. I have never lived in the State of Alabama. I do not and never have owned property or assets in the State of Alabama. I do not and never have conducted business activities in the State of Alabama. I have never had any personal contacts with the State of Alabama unrelated to the present lawsuit.
“Autosource Motors, LLC, hereinafter ‘Autosource,’ is a limited liability company duly registered in Utah and having its principal ... place of business in West Woods Cross, Utah. Autosource is not registered, qualified or licensed to do business in the State of Alabama. Autosource is not required to, nor does it pay taxes in or to the State of Alabama. Autosource does not own property or assets in the State of Alabama, does not maintain offices in the State of Alabama, does not have employees in the State of Alabama and does not have a telephone listing in the State of Alabama. Autosource does not knowingly or intentionally market, solicit or advertise products or services in the State of Alabama. I am unaware of any business dealings with any resident of the State of Alabama, prior to the transaction with Stephanie Michelle Chamberlain made the basis of this lawsuit, and Autosource has ever [sic] knowingly or intentionally sold any goods or services to any entity in or from the State of Alabama.
“Autosource advertised the subject 2008 Ford Mustang Coupe on its website, which is a national/international internet website dedicated to selling of automobiles. Vehicles in Autosource’s inventory are listed on its website in order to receive offers and/or bids from individuals or other businesses who are interested in purchasing the vehicles. The impetus is on the individual who is interested in the automobile to then contact Autosource regarding the vehicle posted on its website.
“Prior to the transaction made the basis of this lawsuit, I am unaware of any prior business dealings that Auto-source had with Ms. Chamberlain. Au-tosource was contacted by Ms. Chamberlain after she saw the advertisement that had been placed on our website. Ms. Chamberlain traveled to the Auto-source dealership located at 2023 S 625 W. Woods Cross, Utah. After negotiating the purchase price for the Mustang, Ms. Chamberlain executed a purchase contract at the store’s location in Utah. Ms. Chamberlain paid for the vehicle in Utah. Ms. Chamberlain drove the vehicle off Autosource’s lot in Utah, and presumably returned to Alabama.”

Chamberlain filed no response to Auto-Source’s motion to dismiss.

On October 22, 2013, the trial court entered an order stating, in toto: “MOTION TO DISMISS PURSUANT TO RULE 12(B) filed by AUTO SOURCE MOTORS is hereby DENIED.” Petition, Appendix E (capitalization in original). AutoSource timely petitioned this Court for a writ of mandamus.

II. Standard of Review

“A petition for a writ of mandamus is the proper vehicle by which to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003). ‘An appellate court considers de novo a trial court’s judgment on a part/s motion to dismiss for lack of personal jurisdiction.’ Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002). However, ‘an appellate court must give deferential consideration to any findings of fact made by a trial court based on evidence received ore tenus in connection with a determination as to the nature and extent of a foreign defendant’s contacts with the forum state.’ Ex parte American Timber & Steel Co., 102 So.3d 347, 353 n. 7 (Ala.2011).
“‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).’
“Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).”

Ex parte Merches, 151 So.3d 1075, 1078 (Ala.2014).

III. Analysis

“The extent of an Alabama court’s personal jurisdiction over an out-of-state defendant is governed by Rule 4.2(b), Ala. R. Civ. P. Rule 4.2(b), as amended in 2004, provides:
“ ‘(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ’
“In Hiller Investments, Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006), this Court explained:
“‘[Rule 4.2(b)] extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions. When applying Rule 4.2(b), this Court has interpreted the due process guaranteed under the Alabama Constitution as coextensive with that guaranteed under the United States Constitution.’
“ ‘The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant.’ J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008).
“ ““ “In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and ‘where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).” ’
“ ‘ “Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if the defendant makes a prima facie evidentia-ry showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.’ Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995) (‘When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.’) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).”
‘Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004).’
“Ex parte Bufkin, 936 So.2d 1042, 1045 (Ala.2006).
“ ' “Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts "with the forum state that are unrelated to the cause of action and that are both ‘continuous and systematic.’ Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.”
“‘Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist “a clear, firm nexus betweén the acts of the defendant and the consequences complained of.” Duke v. Young, 496 So.2d 37, 39 (Ala.1986). See also Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997).’
“Elliott[ v. Van Kleefl, 830 So.2d [726,] 730 [ (Ala.2002) ].
“... Regarding specific jurisdiction, the United States Supreme Court has explained:
“ ‘[T]he constitutional touchstone remains whether the defendant purposefully established “minimum contacts” in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a “sufficient benchmark” for exercising personal jurisdiction. Instead, “the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” In defining when it is that a potential defendant should “reasonably anticipate” out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 [78 S.Ct. 1228, 2 L.Ed.2d 1283] (1958):
“1 “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each ease that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”
‘“This “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts, or of the “unilateral activity of another party or a third person.” Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State. Thus where the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.
“ ‘Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” Thus courts in “appropriate case[s]” may evaluate “the burden on the defendant,” “the forum State’s interest in adjudicating the dispute,” “the plaintiffs interest in obtaining convenient and effective relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several States in furthering fundamental substantive social policies.” ’
“Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-77, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations and footnotes omitted).
“This Court has summarized the test for minimum contacts explained in Burger King as follows:
“ ‘(1) The nonresident defendant’s contacts must be related to the plaintiffs cause of action or have given rise to it. (2) By its contacts the nonresident defendant must have purposefully availed itself of the privilege of conducting business in the forum state. (3) The nonresident defendant’s contacts with the forum must be “such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state.” ’
“Ex parte Alamo Title Co., 128 So.3d 700, 711 (Ala.2013) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala.2010), quoting in turn Burger King, 471 U.S. at 473, 105 S.Ct. 2174) (citations and footnote omitted). ‘The issue of personal jurisdiction “ ‘stands or falls on the unique facts of [each] case.’ ” ’ Ex parte Citizens Prop. Ins. Corp., 15 So.3d 511, 515 (Ala.2009) (quoting Ex parte I.M.C., Inc., 485 So.2d 724, 725 (Ala.1986)).”

Ex parte Merches, 151 So.3d at 1078-80. Being mindful that “[t]he plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant,” J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008), we now consider whether the trial court was correct in denying AutoSource’s motion to dismiss.

A. General Jurisdiction

“ ‘ “General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both ‘continuous and systematic.’ ” ’ ” Ex parte Merches, 151 So.3d at 1079 (quoting Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002), quoting in turn Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result)). Here, neither Chamberlain’s complaint nor her affidavit expressly alleges or impliedly suggests that AutoSource has “continuous and systematic” contacts with the State of Alabama. Simply put, we have no basis on which to hold that the trial court can properly exercise general personal jurisdiction over Au-toSource in this case.

B. Specific Jurisdiction

As noted above, Chamberlain made only one allegation regarding personal jurisdiction in the three filings she submitted to the trial court (her complaint, her affidavit, and her motion for a default judgment). Specifically, Chamberlain alleged in her complaint:

“Jurisdiction is proper in that Auto Source Motors took actions aimed at Alabama citizens in the course of its business and in particular sought to avail itself of use of the laws of the state of Alabama by claiming its cars could be titled in the state of Alabama as an incentive to Ms. Chamberlain, a citizen of Alabama, to buy one of their vehicles.”

The above-quoted allegation that, during the course of the isolated sale of the 2008 Ford Mustang Coupe automobile to Chamberlain, AutoSource told Chamberlain that she could title the automobile in Alabama does not establish the minimum contacts necessary to provide the trial court with specific personal jurisdiction over Auto-Source. Assuming, without deciding, that AutoSource’s statement during the isolated sale to Chamberlain of the 2008 Ford Mustang Coupe that Chamberlain could title the automobile in Alabama actually constitutes a contact with the State of Alabama, that sole, isolated contact is insufficient to support a finding of specific personal jurisdiction. See, e.g., Network Prof'ls, Inc. v. Network Int’l, Ltd., 146 F.R.D. 179, 181 n. 1 (D.Minn.1993) (“The due process analysis focuses on a defendant’s contacts with the forum, not its contacts with the plaintiff; thus, an isolated sale will not support jurisdiction, even if the cause , of action arises from the sale.”); Chung v. NANA Dev. Corp., 783 F.2d 1124, 1126 (4th Cir.1986) (noting that a sale consisting of no more than an “‘isolated’ or ‘attenuated’ single transaction ... has always been deemed inadequate to satisfy due process”); Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir.1978) (holding that “four sporadic and isolated sales” did not support personal jurisdiction).

AutoSource’s affidavit, by and through its then president, W. Scott Kjar, established that AutoSource’s advertisement of the 2008 Ford Mustang Coupe automobile on its Web site did not constitute a purposeful contact with Alabama because, like an advertisement placed in a nationally delivered newspaper or journal, it was not directed at Alabama specifically and the advertisement was passive in nature. Additionally, AutoSource’s affidavit established that the sale of the 2008 Ford Mustang Coupe to Chamberlain was a single, isolated contact with an Alabama resident, which was' initiated by the Alabama resident rather than AutoSource. Auto-Source’s affidavit also established that its only contact with Alabama was a telephone call initiated by Chamberlain. Furthermore, AutoSource’s affidavit established that it is not registered to do business in Alabama; that it is not required to pay taxes in Alabama; that it owns no property or has no assets in Alabama; that it does not maintain an office in Alabama; that it does not have any employees in Alabama; that it does not have a telephone listing in Alabama; and that, before the sale to Chamberlain of the 2008 Ford Mustang Coupe, it had never knowingly sold, marketed, advertised, or solicited the sale of any goods or services to any person or entity in or from Alabama. Accordingly, based on the principles of law set forth in Ex parte Merches, supra, we conclude that in Kjar’s affidavit AutoSource made a pri-ma facie showing that it had not purposefully availed itself of the privilege of conducting activities within Alabama and, thus, that AutoSource did not have the minimum contacts necessary to subject it to personal jurisdiction in Alabama. See id.

The prima facie showing made by Kjar’s affidavit shifted to Chamberlain the burden of proving by affidavits or other competent evidence that AutoSource had purposefully availed itself of the privilege of conducting activities within Alabama. See Ex parte Merches, supra. However, as noted above, Chamberlain’s affidavit did not rebut the prima facie showing-made by AutoSource in that her affidavit failed to establish that AutoSource is subject to suit in Alabama pursuant to either general personal jurisdiction or specific personal jurisdiction; consequently, we hold that the trial court erred in denying AutoSource’s motion to dismiss Chamberlain’s complaint for lack of personal jurisdiction. Auto-Source’s petition for a writ of mandamus is, therefore, due to be granted.

IV. Conclusion

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

AutoSource has demonstrated a clear legal right to the relief it seeks. Therefore, we grant the petition for a writ of mandamus and direct the Montgomery Circuit Court (1) to vacate its order denying AutoSource’s motion to dismiss for lack of personal jurisdiction and (2) to enter an order granting AutoSouree’s motion to dismiss for lack of personal jurisdiction.

      . In various documents submitted to this Court, this entity is referred to variously as AutoSource Motors, LLC, Autosource Motors, LLC, and Auto Source Motors, LLC. We have chosen to use AutoSource Motors, LLC, in this opinion but have made no effort to change the name in documents quoted in this opinion.

      . Although unclear, it appears that Chamberlain filed her affidavit in support of a motion for a default judgment, which she filed on the same day she filed her affidavit.

      . Network Professionals, Inc., supra, Chung, supra, and Charia, supra, were cited with approval in Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 464 (Ala.2003), a case in which this Court granted the petition for a writ of mandamus and directed the trial court to vacate its order denying the petitioner’s motion to dismiss and to enter an order dismissing the complaint for lack of personal jurisdiction.