text:
    BURLINGTON COAT FACTORY OF ALABAMA, LLC v. Barbara BUTLER.
    2120969.
    Court of Civil Appeals of Alabama.
    June 13, 2014.

      John W. Dodson, Neal D. Moore III, and David A. Rich of Ferguson, Frost & Dodson, L.L.P., Birmingham, for appellant.
    Frank S. Buck, J. Brooks Leach, and Rachel C. Buck of Frank S. Buck, P.C., Birmingham, for appellee.
   THOMAS, Judge.

On May 16, 2011, Barbara Butler went to a store operated by Burlington Coat Factory of Alabama, LLC (“Burlington”), to return some shoes. Butler then decided to shop for some “memory-foam” pillows, which she located in the linens department of the store. The pillows were displayed on moveable metal brackets affixed into a “slat wall” on an “end cap” on one of the aisles in the linens department. Butler was removing the pillows from a set of brackets slightly above her head when the brackets holding the pillows came loose from the wall and fell; one of the brackets hit Butler in the face, causing a lump to form above her left eyebrow. Ultimately, Butler was diagnosed with a nasal fracture and a deviated septum and underwent surgery to correct the injury. She sued Burlington in the Jefferson Circuit Court in December 2011, seeking to establish Burlington’s negligence or wantonness, based on a premises-liability theory. The action proceeded to a jury trial in April 2013, after which the trial court entered a judgment on a jury verdict in favor of Butler on Butler’s negligence claim.

The testimony presented at trial established the following facts. As noted above, Butler was injured when she removed pillows from the brackets upon which the pillows were displayed. Certain facts regarding the incident were sharply disputed, including whether the pillows displayed on the brackets were single pillows in boxes or whether they were a set of two pillows enclosed in a plastic bag. However, whether the pillows were displayed in bags or boxes is not relevant to the resolution of this appeal. Instead, the resolution of this appeal turns on the testimony presented regarding the brackets used by Burlington to display merchandise like the pillows Butler was shopping for on the day of the incident and the inspection procedures utilized by Burlington employees to make certain that the brackets were secure.

Dorothy Baker, the Burlington employee who was responsible for the linens department, testified at length about the use of the brackets in the store. Baker said that she had worked for Burlington since 1993 and that, as part of her employment, she had regularly secured, moved, and inspected the brackets used in the store. In fact, Baker testified that she had installed the brackets that fell and injured Butler, and Baker said that those brackets had been in place for months without incident. She also said that she had visually inspected the linens department, as was her habit on the days she worked, on the morning of the incident between 9 a.m. and 12 p.m. According to Baker, she saw nothing in her visual inspection that day to indicate that the brackets were not secure in the slat wall.

Baker explained how the brackets worked, stating that the hooks on the bracket were placed into the slat wall and that, once the hooks were placed in the slat wall, the bracket was “there to stay.” According to Baker, if she could “see that these hooks are in — the brackets are in the wall there, they’re not coming down.” She said that she did not pull on the brackets after the original installation, explaining that she could visually inspect the brackets to tell if they were properly installed in the slat wall; Baker explained that she did not need to touch the brackets to check their stability. She stated:

“That bracket is not going to be halfway in. It’s not going to be halfway out. It’s either going to be in or it’s going to be on the floor. And if it’s looking crooked, then you need — the only other thing that it could possibly be is that the bracket itself is bent. That’s when you inspect. When it does not look like that it’s in properly, then you can touch and inspect.”

According to Baker, the brackets that fell and injured Butler had never, to her knowledge, fallen off the slat wall before the incident and had not, once they were reattached to the slat wall, fallen off the slat wall after the incident.

Lander Jones, who was the manager of the Burlington store on the date of the incident, testified that the brackets were composed of a lightweight metal. She, like Baker, said that the brackets were either in the slat wall or out of the slat wall. She described the installation and removal of the brackets thusly:

“[Counsel for Butler:] ... If you could just demonstrate for the jury, I think, using this photograph.
“[Jones:] You have to slant it at an angle and clip it up in the wall and then it rests straight down and it rests against the wall itself.
“[Jones:] ... [I]t’s going to lock down regardless because once it’s in that slat wall, it goes in and it lays down and it’s either in there or it’s out.
“[Counsel for Butler:] And what causes — or how do you remove the bracket?
“[Jones:] You have to lift it up. You have to dislodge it. You have to lift it up and pull it down.”

Like Baker, Jones explained that “you will know whether a bracket is not in there correctly. You’ll be able to see it. And that particular type of bracket, it’s either in there or it’s not. It’s not going to be halfway in there.” She also testified that one could tell by looking at the bracket whether it was in or out of the slat wall or whether further inspection was needed because the bracket appeared crooked or uneven.

Jones was present on the date of the incident and, in fact, was nearby when the bracket fell and hit Butler. According to Jones, as she approached the end-cap display, she could see the brackets and that they all appeared to be level and secure. Jones said that she saw Butler shopping and that Jones had assisted her in checking a price for a set of two pillows in a plastic bag. Jones said that she stepped into the aisle to check the price of the pillows in the plastic bags; she said that she could see Butler out of the corner of her eye from where she was standing. She said that Butler appeared to be hitting or pushing at the bottom of a box containing a pillow in the end-cap display right before the brackets fell. Based on what she perceived, Jones surmised that Butler’s action in hitting the corner of the box in the display dislodged the bracket, causing it to come out of the slat wall. Jones testified that Butler had said that the bracket had hit her on the head above the left eyebrow, which was consistent with Jones’s having noticed a knot forming above Butler’s left eyebrow. Jones made a report of the incident and offered Butler an over-the-counter pain medication.

Nequette Franklin, who had been employed by Burlington until approximately two weeks before the trial but who had not worked at the Burlington store at the time of the incident, also testified that the brackets, once installed, were “locked.”

“[Counsel for Butler:] ... If you’ll just demonstrate for the jury [with reference to photographs] how these brackets hook into the wall.
“[Franklin:] Yes, exactly. This is a little — These are the prongs. This is the line that the prongs go into, so therefore, when these prongs is hooked, in that part is a little hook, so therefore, when you hook it, it’s locked.
“[Counsel for Butler:] And then how do you take the brackets out?
“[Franklin:] You have to lift it up and unhook it.”

According to Franklin, to dislodge a bracket one had to “hit [it] up, keep hitting it up, and then it comes off the wall” or that “you have to lift it up and keep trying to pop it out”; she said that dislodging the brackets “was hard for [her].” Franklin stated that she had never seen a bracket fall from the slat wall, that she had never been injured by a bracket, and that she had never seen another employee or a customer injured by a bracket. When asked whether a bracket might be “loosened” by a customer “fiddling with merchandise,” Franklin answered: “It would be a little difficult because once again, when you put them in there, they are locked, so they would literally have to bang on them to lift them up.” Like Baker and Jones, Franklin testified that, once a bracket was installed, one could look at it and tell if it was securely in the slat wall.

Butler’s testimony regarding the brackets was that she had not touched the brackets when she removed the pillows. She explained that she “reached to get the pillows to take them out like [she had retrieved similar pillows from] the bottom [bracket], but everything — both of those brackets, they’re supposed to be individually [sic] and they’re locked down. They were not locked down. Those pillows came out with those brackets.” Butler stated that she had not noticed the brackets, that she had not observed whether the brackets were crooked, and that she had no idea why the brackets fell. She denied hitting on the brackets or “popping the pillow from the bottom.” Butler also testified that she was not accusing Burlington of having a “dangerous condition in the store. If there’s one in a million, I was just the one person. If it never happens again, I was the one in a million. I don’t know if it’s dangerous. I was the one person in a million. That’s all that I’m saying.”

Butler testified that the bracket hit her on the head above her left eye. Butler did not request to visit the emergency room that day, but she sought medical attention in the emergency room the following day after having continued pain and difficulty breathing through her nose during the overnight hours. As noted above, Butler was ultimately diagnosed as having suffered a nasal fracture and a deviated septum as a result of the bracket striking her face.

At the close of the all the evidence, Burlington moved for a judgment as a matter of law pursuant to Rule 50, Ala. R. Civ. P. The trial court granted Burlington’s motion as to Butler’s wantonness claim. See supra note 1. Regarding Butler’s negligence claim, Burlington argued that Butler had not presented sufficient evidence of its liability to support submitting the claim to the jury. According to Burlington, Butler had not presented evidence to support the conclusions that the bracket was in a dangerous or defective condition, that Burlington had notice of such a dangerous or defective condition, that the danger presented by the bracket was unknown by or hidden from Butler, that Burlington was negligent, or that Burlington’s negligence caused the harm to Butler. At the heart of Burlington’s argument was the contention that Butler had not presented affirmative evidence that the bracket was defective or that it had fallen as a result of negligence on the part of a Burlington employee. Instead, Burlington argued, Butler was essentially proceeding on the theory of res ipsa loquitur, which is not applicable to establish liability in premises-liability cases. See Ervin v. Excel Props., Inc., 831 So.2d 38, 41 (Ala.Civ.App.2001) (stating the rule that an owner of the premises is not an insurer of the safety of its invitees and that the doctrine of res ipsa loquitur is not applicable to establish liability in a premises-liability case).

The trial court denied Burlington’s motion on Butler’s negligence claim based on a premises-liability theory, and the claim was submitted to the jury. The jury returned a verdict in favor of Butler, awarding her $26,100, and the trial court entered a judgment on that verdict. Burlington renewed its motion for a judgment as a matter of law on the same grounds advanced in its earlier motion; the trial court denied Burlington’s renewed motion. Burlington timely appealed the judgment to this court.

On appeal, Burlington again advances the argument that Butler did not present sufficient evidence of negligence to have warranted submitting the claim to the jury. It argues that Butler failed to present substantial evidence indicating that the brackets were a defective or dangerous condition on its premises and that Butler failed to present substantial evidence indicating that Burlington breached its duty to inspect and maintain its premises in a reasonably safe condition. After much consideration of the testimony and the law applicable to premises liability, we reverse the trial court’s judgment and remand the cause for the entry of a judgment as a matter of law in favor of Burlington.

“ ‘ “[T]he de novo ‘standard by which we review a ruling on a motion for a JML [judgment as a matter of law] is ‘“materially indistinguishable from the standard by which we review a summary judgment.’ ” ”” McGee v. McGee, 91 So.3d 659, 663-64 (Ala.2012) (quoting Glass v. Birmingham Southern R.R., 982 So.2d 504, 506 (Ala.2007), quoting in turn Bailey v. Faulkner, 940 So.2d 247, 249 (Ala.2006)). ‘ “When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue.” ’ Pittman v. United Toll Sys., LLC, 882 So.2d 842, 844 (Ala.2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)). ‘ “ ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” ’ Long v. Wade, 980 So.2d 378, 383 (Ala.2007) (quoting Kmart Corp. v. Bassett, 769 So.2d 282, 284 (Ala.2000), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). ‘Further, this Court has stated that “ ‘[e]vidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.’ ” ’ State Farm Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So.2d 1039, 1041 (Ala.2002) (quoting McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001), quoting in turn Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000)).”

Black Warrior Elec. Membership Corp. v. McCarter, 115 So.3d 158, 161-62 (Ala.2012).

“‘[T]he duty owed by the landowner to a person injured on [its] premises because of a condition on the land is de-pendent upon the status of the injured party in relation to the land.’ ” Edwards v. Intergraph Servs. Co., 4 So.3d 495, 500 (Ala.Civ.App.2008) (quoting Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala.1995)). In the present case, there is no dispute that Butler was an invitee. Thus,

“ ‘[Burlington] owe[d][its] inviteef, Butler,] the legal duty “to exercise reasonable care and diligence to keep the premises in a reasonably safe condition for the uses contemplated by the invitation, and to warn [Butler] of known dangers, or dangers that ought to have been known, and of which [Butler] was ignorant.” ’ ”

Ervin, 831 So.2d at 41 (quoting Shelton v. Boston Fin., Inc., 638 So.2d 824, 825 (Ala.1994), quoting in turn Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 62, 173 So. 388, 389 (1937)). However, as our supreme court has explained, “ ‘[t]he owner of a premises ... is not an insurer of the safety of his invitees ... and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.’ ” Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000) (quoting Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978)); see also Edwards, 4 So.3d at 506 (quoting Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980)) (“' “[T]he law doesn’t say that for every injury there is a remedy. It says for every wrong there is a remedy.” ’ ”).

“In [any] premises-liability case, the elements of negligence ‘ “are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.” ’ ” Ex parte Harold L. Martin Distrib., 769 So.2d at 314 (quoting E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963, 969 (Ala.1985), quoting in turn David G. Epstein, Products Liability: Defenses Based on Plaintiff’s Conduct, 1968 Utah L.Rev. 267, 270). More specifically, an invitee seeking to impose liability on a premises owner generally “ ‘must show not only that [she] was injured as a result of a defective condition on the owner’s premises, but also that the owner knew or should have known of the defective condition.’” Miller v. Liberty Park Joint Venture, LLC, 84 So.3d 88, 92 (Ala.Civ.App.2011) (quoting Edwards, 4 So.3d at 502); see also Hale v. Sequoyah Caverns & Campgrounds, Inc., 612 So.2d 1162, 1164 (Ala.1992) (stating that, “[i]n order for [a plaintiff in a premises-liability case] to recover, [he or she] must prove that [his or her] fall resulted from a defect or instrumentality on the premises; that the defect was the result of the defendant’s negligence; and that the defendant had or should have had notice of the defect before the time of the accident”). However, as Butler points out, our supreme court has held that an invitee need not present substantial evidence of the owner’s actual or constructive notice of the defective condition when the defective condition is part of the premises, Mims v. Jack’s Rest., 565 So.2d 609, 610 (Ala.1990), when the premises owner has affirmatively created the defective condition, Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala.1993), or when the premises owner has failed to perform reasonable inspections and maintenance of the premises to discover and repair the defective condition. Norris v. Wal-Mart Stores, Inc., 628 So.2d 475, 478 (Ala.1993).

Burlington first argues that Butler failed to present substantial evidence of the first element of a premises-liability claim — that the brackets were a defective condition on the premises. That “a plaintiff in a premises-liability action must present evidence that the condition of which it complains is defective” is well settled. Miller, 84 So.Sd at 93. The need for such evidence is based on the principle expressed by the trial court in its order in Miller that “ ‘[t]he mere fact that an unfortunate injury occurred[ ] does not give rise to an inference that a dangerous condition existed.’ ” Id. at 92.

The evidence at trial established that the brackets were commonly used by Burlington and had been used without incident for, at a minimum, close to 20 years before the accident giving rise to this litigation. Baker, Jones, and Franklin testified that the brackets were either securely in the slat wall or not on the slat wall. Although some testimony indicated that a bracket could be uneven or crooked, the testimony further indicated that this could occur only when the prongs on the bracket were either bent or broken.

The undisputed evidence regarding the bracket that injured Butler was that the prongs on that bracket were not bent or broken; in fact, the evidence indicated that the brackets that fell were placed back into the slat wall after the accident and that they remained in the slat wall on the date of the trial. Baker and Jones testified that they had each viewed the brackets that had injured Butler on the day of the accident, and, in Jones’s case, her viewing the brackets occurred mere minutes before the accident. Both Baker and Jones testified that the brackets were in the slat wall on the date of the incident and did not appear crooked or misaligned.

Butler argues that, based on the evidence provided by Franklin, Baker, and Jones that brackets that were properly installed were “locked down” and would be securely in the slat wall, the jury could have reasonably inferred that, the brackets that fell and injured her were not properly installed. She also makes much of the fact that, as she puts it, Franklin did not emphatically state that the brackets could not be “loosened” by the actions of a customer “fiddling” with merchandise. Instead, she says, Franklin’s testimony could support the inference that a bracket might become loose during the day and that it would then be precariously hanging in the slat wall waiting to fall. However, Butler misunderstands the nature of an inference.

‘“An “inference” is a reasonable deduction of fact, unknown or unproved, from a fact that is known or proved. See, Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274 (1964). “[A]n inference cannot be derived from another inference.” Malone, 277 Ala. at 107, 167 So.2d at 281. An inference must be based on a known or proved fact. Id.’

McCarter, 115 So.3d at 163 (quoting Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224 (Ala.1992)). The McCarter court was faced with the argument that a jury could have disbelieved testimony that an electric company’s electrical lines were at the proper height based on an early morning inspection and then determined that, instead, the lines were below the proper height and that the electric company therefore had constructive notice that the lines were too low. McCarter, 115 So.3d at 163. Because the plaintiff based its inference of constructive notice on another inference that the lines were low at the time of the early morning inspection, which in turn was based on evidence that the lines were low at the time of the accident, despite the dispute in the evidence regarding whether the lines were low at the time of the early morning inspection, our supreme court explained that the plaintiff had failed to present substantial evidence to support an inference that the electric company had constructive notice. Id. at 163 & 165-66. Instead, the court said, the plaintiff had presented only speculation and conjecture regarding when the lines had become defectively low. Id. at 165-66.

Similarly, in the present case, the facts supported by the testimony of Jones, Baker, and Franklin are that the brackets could not be installed in such a way that the brackets would hang loosely from the slat wall. The testimony established that the brackets were either in the slat wall or they were “on the floor,” except, perhaps, if the prongs on the brackets were bent or broken, in which event, the brackets would hang unevenly. The evidence presented at trial established that the prongs on the bracket that injured Butler were not bent or broken. Even if the jury were to disbelieve the testimony of both Jones and Baker describing the brackets as being properly installed on the date of the accident, the jury had no evidence from which it could infer that the brackets were not properly installed because Butler presented no evidence indicating that the brackets were not properly installed. Butler testified that she had not observed the brackets, looked at the brackets, or noticed the brackets while they were on the slat wall. A jury cannot infer a fact from the lack of evidence, so, even if the testimony of Jones, Baker, and Franklin was disregarded by the jury, the jury would have had to have speculated that the brackets were not properly installed to have determined that they were a defective condition on the premises. “Alabama juries are not permitted to speculate as to the cause of an accident.” Ex parte Harold L. Martin Distrib., 769 So.2d at 315. Thus, we cannot agree that the jury was iree to reject the testimony of Jones, Baker, and Franklin regarding the brackets and their proper installation and then to “infer” that the brackets had been improperly installed.

As noted, Butler also makes much of the testimony provided by Franklin that it would be unlikely, but not impossible, that a customer “fiddling” with merchandise would “loosen” a bracket. However, a reading of Franklin’s testimony does not support the conclusion that a bracket could become “loose” and hang on the wall in such a “loose” condition until it later fell. The questions posed to Franklin on this issue, and her answers, were as follows:

“[Counsel for Butler:] ... Could [the brackets] become loose during the day, though, if a customer was, you know, trying to pop merchandise out of them? Could they loosen during the course of a day?
“[Franklin:] It would be difficult. I mean, I’m not saying that would [sic] happen, but it would be difficult.
“[Counsel for Butler:] Would it surprise you during the course of four hours if a customer is fiddling with merchandise, any customer, could those brackets be loosened during that time?
“[Franklin:] It would be a little difficult because, once again, when you put them in there, they are locked, so they would literally have to bang on them to lift them up.
“[Counsel for Butler:] And is the only way they would come unlodged [sic] is if they — I mean, how do they become unlodged [sic]?
“[Franklin:] You have to hit them up, keep hitting it up and then it comes off the wall.”

Although Franklin’s answer to the question about whether the brackets could be “loosened” by a customer might, in isolation, be read in the manner Butler suggests, the whole of Franklin’s testimony, together with the consistent testimony of Jones and Baker, does not support an inference that the brackets could be “loosened” and still hang in the slat wall. The evidence at trial tended to establish that the brackets were either in or out of the slat wall; that if the brackets were not installed properly in the slat wall they would fall to the ground; that, once installed, a bracket could not be dislodged easily; and that dislodging a bracket required that some force be applied to the bracket or that the bracket be lifted. The answer given by Franklin, taken in context, cannot support an inference that a bracket could be properly installed, be loosened by a customer “fiddling with merchandise,” and yet remain partly attached, hanging precariously in the slat wall. Thus, Franklin’s testimony is not sufficient upon which to base an inference that the brackets were a defective condition on the premises.

Butler’s case hinged on the theory that a properly installed bracket should not fall off of the wall and injure a customer. Under well-established premises-liability law, Butler was required to present substantial evidence supporting a conclusion that the brackets were a defective or dangerous condition on Burlington’s premises; however, she presented no evidence indicating that the brackets were defective or dangerous. Instead, she relied on what she contends were inferences the jury could have drawn from the rejection of the testimony of Baker, Jones, and Franklin, who testified about the installation of the brackets. However, the jury had no evidence before it to support an inference that the brackets were defective or dangerous or that they had been improperly installed in the slat wall. All of the evidence presented was to the contrary.

The doctrine of res ipsa loquitur is not applicable in premises-liability actions, and it has been often repeated that the mere fact that an accident occurred does not prove that negligence of the premises owner caused that accident. See Ex parte Harold L. Martin Distrib., 769 So.2d at 314. Because the evidence presented at trial does not support an inference that the brackets or their installation were defective or created a dangerous condition, we agree with Burlington that the trial court erred in denying its motion for a judgment as a matter of law. Accordingly, we reverse the judgment of the trial court, and we remand the cause for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . The trial court granted a judgment as a matter of law in favor of Burlington on Butler's wantonness claim.

      . Butler said that the pillows were in plastic bags, but Lander Jones, the manager of the Burlington store on the date of the incident, stated that the pillows displayed on the brackets on that date were single pillows in boxes. Another Burlington employee, Dorothy Baker, who was responsible for the linens department, testified that she could not recall whether the pillows displayed on the end cap on the date of the incident were in boxes or in plastic bags.

      . Res ipsa loquitur means " 'the thing speaks for itself,' ” and the doctrine "essentially allows a party to prove negligence by using circumstantial evidence.” Carrio v. Denson, 689 So.2d 121, 123 (Ala.Civ.App.1996).

      . In Edwards, we indicated only the last two categories as categories of cases in which a showing of notice was not required. Edwards, 4 So.3d at 503. We included Mims in the last category because it appeared that liability in that case was premised upon evidence that the threshold that caused the plaintiffs injury was visibly loose and missing screws, indicating that the premises owner had not inspected and repaired a defect on the premises. However, in Isbell v. Aztecas

        Mexican Grill, 78 So.3d 420, 425 (Ala.Civ.App.2011), this court reversed a summary judgment entered in favor of the premises owner despite the fact that the plaintiff had failed to present evidence indicating that the premises owner.had actual or constructive notice of a defect in a booth that had resulted in the collapse of the booth and injury to the plaintiff. Our opinion reversing the summary judgment entered in favor of the premises owner relied on the statement in Mims that " ‘once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident.’ ” Isbell, 78 So.3dat 424 (quoting Mims, 565 So.2d at 610) (emphasis omitted). Although Isbell appears to render a premises owner potentially liable for any accident resulting from what could be considered a defect in the premises without regard to whether the defect could possibly have been detected by the premises owner, and therefore to run counter to the long-standing principles of premises liability, including the principle that such liability is premised upon the superior knowledge of the premises owner of the conditions on the premises, we note that the opinion in Isbell does not indicate that the premises owner had argued that the booth that had collapsed was not defective. In contrast, as will be explained infra, in the present case Burlington argues that Butler failed to produce substantial evidence indicating that the brackets were defective.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    W.A.A. v. BOARD OF DENTAL EXAMINERS OF ALABAMA.
    2121026.
    Court of Civil Appeals of Alabama.
    June 13, 2014.

      Davis B. Whittelsey and Jonathan K. Corley of Whittelsey, Whittelsey & Poole, P.C., Opelika, for appellant.
    Susan F. Wilhelm and Donna L. Dixon, deputy attys. gen., Board of Dental Examiners of Alabama, Hoover, for appellee.
   PITTMAN, Judge.

W.A.A. (“the practitioner”), a dental practitioner licensed by the Board of Dental Examiners of Alabama (“the Board”), appeals from orders entered by the Jefferson Circuit Court purporting to (a) grant in part and deny in part a motion filed in the circuit court by Addiction & Mental Health Services, Inc., a corporate entity doing business under the name “Bradford Health Services” (“Bradford”), seeking to quash a number of subpoenas issued to certain employees of Bradford by the Board’s hearing officer in an administrative disciplinary hearing involving the practitioner, and (b) granting a motion, filed in the circuit court by the Board after Bradford filed its motion, seeking to compel the practitioner to “fully answer” certain interrogatories and requests for production directed by the Board to the practitioner. Because the circuit court lacked subject-matter jurisdiction to enter the orders as to which the practitioner has sought appellate review, we dismiss the appeal e'x mero motu as arising from void orders.

Much of the material procedural history was aptly summarized in a memorandum opinion prepared in June 2013 by Judge William M. Acker, Jr., of the United States District Court for the Northern District of Alabama (“the federal court”) in considering whether the federal courts had subject-matter jurisdiction in this cause:

“In March 2012, the Board received notice from another state regulatory agency regarding the possible impairment of [the practitioner], a dental licensee. Dr. Michael Garver (‘Dr. Garver’), the director of the Alabama Dental Wellness Committee (‘ADWC’), the said other state regulatory agency, contacted [the practitioner] to discuss the allegations in the notice. [The practitioner] consented to a professional evaluation. Bradford is one of three board-approved treatment facilities for impaired professionals. After his initial evaluation, [the practitioner] entered and completed inpatient rehabilitative treatment at Bradford. At the onset of his evaluation, and for the duration of the treatment period, [the practitioner] authorized Bradford to release information to Dr. Garver regarding his ongoing treatment, diagnosis, and recommendations for aftercare and sobriety maintenance. This release was in effect from its execution on April 9, 2012 until March 27, 2013, when [the practitioner] revoked the authorization. Prior to this revocation, Dr. Garver, as director of the [ADWC], maintained contact with the medical professionals at Bradford, who provided Dr. Garver with copies of [the practitioner’s] written diagnosis and treatment reports. These documents included a narrative of his medical history, an overview of his impairment, and recommendations for aftercare.
“The Board is charged with protecting the health, safety, and welfare of the public by regulating the practice of dentistry in Alabama. See Ala.Code [1975,] § 34-9-2(a)[], The Dental Praetice[] Act sets forth grounds for disciplinary action, one of which is being ‘a habitual user of intoxicants or drugs rendering [a licensee] unfit for the practice of dentistry or dental hygiene.’ Id. at § 34-9-18(4). After [the practitioner] underwent an evaluation and inpatient treatment at Bradford, the Board, through Dr. Garver and the Board’s prosecuting counsel, offered [the practitioner] the opportunity to enter into a consent order and monitoring contract with the Board wherein [the practitioner] could execute an agreement setting forth the parameters for his practice and sobriety maintenance. Similar to consent orders executed by other licensees who have undergone treatment for impairment, the terms of the consent order and accompanying contract included mandatory counseling, attendance at meetings, random urine screens, regular communication with the [ADWC], and other activities and treatment recommended by Bradford.
“[The practitioner] refused the offered consent order, whereupon the Board set the matter for hearing on April 5, 2013. On March 19, 2013, the Board issued a subpoena to Donald R. Cornelius, M.D. (‘Dr. Cornelius’) of Bradford. Shortly thereafter, on March 26, 2013, [the practitioner] requested the [hearing officer] to issue Bradford subpoenas seeking the testimony of nine named Bradford employees, including Dr. Cornelius, and its Custodian of Records, as well as the production of documents. The subpoenas were issued. The subpoenas directed Bradford to produce testimony and treatment records on behalf of [the practitioner] at the April 5, 2013 administrative hearing. The next day, [the practitioner] rescinded all executed authorizations for release of information regarding his evaluation and treatment at Bradford. The hearing scheduled for April 5, 2013, was not held.
“On April 2, 2013, Bradford instituted the underlying state court proceeding by filing a motion in the Circuit Court of Jefferson County, Alabama to quash the subpoena directed to it. In its motion, Bradford asserts that the testimony and documents sought are privileged based on federal and state law, including federal regulations providing that alcohol and chemical dependency treatment programs are prohibited from disclosing patient records or other patient information without the patient’s consent or court order and under state law patient-psychologist privilege and counselor-patient privilege. See 42 U.S.C. § 290dd-2; 42 C.F.R. Part 2 (1991); 42 C.F.R. §§ 2.63 and 2.64 (1991). In addition, Bradford argued that it would be unduly burdensome to require ten employees to appear at the hearing when two of the doctors would be sufficient to authenticate the records and provide any necessary testimony related to the alleged patient’s treatment.
“The Circuit Court of Jefferson County set the motion to quash for hearing on April 4, 2013, at 3:00 P.M. On the day of the hearing, [the practitioner] filed his notice of removal pursuant to 28 U.S.C. §§ 1331, 1441, [&] 1446, removing the state court proceeding to this court. The Board was not notified of [the practitioner’s] motion and did not join in the notice of removal.”

In re W.A.A., Civil Action No. 2:13-cv-00623-WMA (N.D. Ala., June 3, 2013) (not reported in Federal Supplement). The federal court concluded that the removal of the case by the practitioner had been procedurally and substantively improper and remanded the case to the circuit court. See id.

After the case was remanded to the circuit court, that court set Bradford’s motion to quash for a hearing on July 9, 2013. Before that hearing could occur, however, the Board filed in the case a motion requesting that the court compel the practitioner to comply with a May 7, 2013, order of the Board’s hearing officer requiring the practitioner to answer certain interrogatories and requests for production notwithstanding the practitioner’s claim of privilege. On July 23, 2013, the circuit court, after the conclusion of its hearing on both Bradford’s motion and the Board’s motion, issued an order purporting to grant Bradford’s motion to quash the subpoenas directed to six particular witnesses (but denying it as to the subpoenas issued to four other witnesses) and an order purporting to require the practitioner to respond to the interrogatories and production requests as to which the practitioner had lodged privilege objections. After the practitioner’s appeal from those orders had been transferred to this court by our supreme court, we requested letter briefs concerning whether the orders from which the practitioner had sought to appeal amounted to a final judgment under Ala. Code 1975, § 12-22-2; upon receipt of those briefs, we permitted the appeal to proceed through briefing on the merits, during which the Board filed a motion to dismiss the appeal as moot in light of the rendition of a final disciplinary order on October 31, 2013, in the underlying administrative proceeding that had been brought by the Board against the practitioner — an order that was rendered based, in part, upon the testimony before the Board of two witnesses from Bradford as to which the Board had issued subpoenas.

Although this court initially allowed briefing on the merits, “such permission ‘does not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record.’ ” R.P.M. v. P.D.A., 112 So.3d 49, 50 (Ala.Civ.App.2012) (quoting Smith v. Smith, 919 So.2d 315, 316 n. 1 (Ala.Civ.App.2005)); cf. Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (noting that jurisdictional matters are of such magnitude that appellate courts take notice of them at any time “and do so even ex mero motu”). Our review of the record and the parties’ briefs leads us to the conclusion that the circuit court lacked subject-matter jurisdiction in the case.

The initial filing that brought the case before the circuit court was a motion to quash the subpoenas issued by the Board’s hearing officer to 10 Bradford employees; that motion, in effect, sought judicial review of the propriety of the decision to issue the subpoenas. However, “[a] fundamental concept of judicial review of administrative action is that it is a limited review, delineated by statute and court-established standards relating to the nature of the issues or questions open to judicial review, or to the particular method or means by which review can be had.” Alabama State Tenure Comm’n v. Mountain Brook Bd. of Educ., 343 So.2d 522, 524 (Ala.1976); see also Carter v. Board of Trs. of the Policemen & Firemen’s Retirement Fund of Gadsden, 42 Ala.App. 99, 99, 154 So.2d 43, 44 (1963) (judicial review of actions of administrative agencies is not an inherent right).

Since its original enactment in 1981, the Alabama Administrative Procedure Act (“the AAPA”), Ala.Code 1975, § 41-22-1 et seq., has, in the main, governed judicial review of actions of administrative agencies. A portion of the AAPA, Ala.Code 1975, § 41-22-12(c), confirms the power of presiding officers in contested cases, such as the Board’s hearing officer, to render interlocutory orders pertaining to discovery and witnesses and specifically empowers the hearing officer to “issue subpoenas, discovery orders related to relevant matters, and protective orders in accordance with the rules of civil procedure.” The decision of the legislature to vest in the discretion of administrative hearing officers the decision to issue subpoenas thus prompts the question: what power does a circuit court have under the AAPA to review a decision of a hearing officer to issue a subpoena?

Although it is well settled that mere preliminary decisions in administrative contested cases will generally not support judicial-review proceedings under the AAPA, a single exception to that doctrine exists: “a preliminary agency ruling is immediately reviewable ‘if review of the final agency decision would not provide an adequate remedy.’ ” Alabama Dep’t of Econ. & Cmty. Affairs v. Community Serv. Programs of West Alabama, Inc., 65 So.3d 396, 403 (Ala.Civ.App.2010) (quoting Ala.Code 1975, § 41-22-20(a)). Assuming, without deciding, that that statutory condition permitting immediate judicial review applied to the decision of the Board’s hearing officer to issue the subpoenas at issue, Bradford did not properly seek judicial review under the AAPA. “Section 41-22-20(b), Ala.Code 1975, provides that an appeal from a state-agency proceeding is to be instituted ‘by filing of notice of appeal or review ... with the agency,’ ” and, “[pjursuant to § 41-22-20(d), the notice of appeal must be filed with the agency within 30 days after the aggrieved party receives notice or other service of the decision of the agency from which the appeal lies.” Ex parte Alabama State Pers. Bd., 90 So.3d 766, 769 (Ala.Civ.App.2012). In this case, Bradford filed no notice of appeal or petition for review so as to comply with the provisions of the AAPA governing efforts to seek review of orders entered in the course of administrative proceedings; thus, no jurisdiction to review the propriety of the issuance of the subpoenas ever attached in the circuit court.

It is well settled that ‘“[w]here “the [circuit] court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action.” ’ ” Ex parte Stewart, 985 So.2d 404, 409 (Ala.2007) (quoting Gulf Beach Hotel, Inc. v. State ex rel. Whet stone, 935 So.2d 1177, 1182 (Ala.2006), quoting in turn State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999)). Because the circuit court did not obtain subject-matter jurisdiction to do anything other than dismiss the action arising upon the filing of Bradford’s motion to quash the subpoenas issued by the Board’s hearing officer, that court, by extension, did not obtain subject-matter jurisdiction to consider the Board’s subsequent motion to compel the practitioner to respond to the Board’s interrogatories and requests for production.

Based upon the foregoing facts and authorities, we conclude that the orders from which the practitioner has sought to appeal are void. We therefore dismiss this appeal, albeit without prejudice to the potential timely institution of judicial-review proceedings with respect to any final order entered by the Board in the underlying administrative contested case. The circuit court is directed to set aside its July 23, 2013, orders as void.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . That general grant of authority parallels that conferred under an earlier enacted statute that permits the Board to "issue subpoenas and compel the attendance of witnesses and the production of all necessary papers, books, and records, documentary evidence and materials or other evidence” in “all matters pending before" the Board. Ala.Code 1975, § 34-9-46; see also Ala. Admin. Code (Board of Dental Exam'rs), r. 270-X-5-.05.

      . In turn, subsections (iii) and (iv) of Rule 45(c)(3)(A), Ala. R. Civ. P., respectively, permit a tribunal that has issued a subpoena to quash or modify that subpoena if the subpoena "requires disclosure of privileged or other protected matter and no exception or waiver applies” or "subjects a person to undue burden.” From those authorities, it follows that the hearing officer had the authority to consider, in the first instance, whether the subpoenas the hearing officer had issued were due to be quashed or modified; thus, Bradford’s decision to seek immediate judicial review rather than to present to the hearing officér its objections to its employees’ compliance with the subpoenas arguably violates the principle of exhaustion of administrative remedies. However, we need not definitively decide that issue here because, under Alabama law, the exhaustion-of-remedies doctrine constitutes a judicially imposed prudential limitation upon the power of judicial review of administrative agencies — one that does not implicate subject-matter jurisdiction. See Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002).

      . We are not confronted in this particular case with any issue regarding the general extent of the circuit court's subject-matter jurisdiction, when properly invoked, to enforce pre-hearing discovery orders rendered by the Board or by an administrative hearing officer. See generally Ala.Code 1975, §§ 34-9-46 & 41-22-12(c).

      . The Board's motion to dismiss the practitioner’s appeal based upon the ground of mootness is itself denied as moot in light of our conclusion that the appeal is due to be dismissed on the grounds stated in this opinion.


author: THOMPSON, Presiding Judge.

text:
    DWOC, LLC v. TRX ALLIANCE, INC.
    2130378.
    Court of Civil Appeals of Alabama.
    June 13, 2014.

      Jerry M. Blevins, Montgomery, for appellant.
   THOMPSON, Presiding Judge.

DWOC, LLC (“DWOC”), and TRX Alliance, Inc. (“TRX”), have been before this court previously. In an earlier opinion, this court set forth the underlying history and facts as follows:

“DWOC, LLC (‘DWOC’), filed a complaint against TRX Alliance, Inc. (‘TRX’), alleging claims of breach of contract, fraud, intentional interference with contractual relations, and negligence. In its complaint, DWOC alleged that it is a tax-preparation business; that it purchased and utilized ta^-preparation software from TRX; and that, ‘pursuant to the licensing agreement’ for the tax-preparation software, it remitted tax filings it had prepared to TRX, which then forwarded those filings to the Internal Revenue Service (‘IRS’). DWOC alleged that TRX was supposed to request that the IRS deposit the refunds from the tax filings DWOC had prepared into a banking account identified by DWOC, that DWOC would deduct its tax-preparation fees from those IRS refunds, and that DWOC would then remit the remainder of the refunds to the appropriate client taxpayers. However, according to DWOC, TRX failed to list DWOC’s bank account in the filings it made with the IRS, and the IRS sent the clients’ refunds directly to the clients, which deprived DWOC of the tax-preparation fees to which it was entitled for work it had performed on behalf of those clients. DWOC sought an award of compensatory and punitive damages.
“In response to DWOC’s complaint, TRX filed a motion to dismiss based on improper venue. TRX argued in its motion to dismiss that the licensing agreement for the tax-preparation software purchased by DWOC contained a provision specifying that Tennessee law applied to any dispute arising between the parties [to that contract] as a result of the purchase of the software and that that agreement also contained a forum-selection clause requiring any legal action to be brought in ‘the courts located in Nashville, Tennessee.’ In support of its motion to dismiss, TRX submitted as an exhibit a copy of a document titled ‘TRX Prol040 End-User Licensee Agreement’ (hereinafter referred to as ‘the software-licensing agreement’). The software-licensing agreement specifies that it is ‘a legally binding contract between TRX Software Development, Inc. (“Licensor”) and you.’ The term ‘you’ in the software-licensing agreement TRX submitted in support of its motion to dismiss is not specifically defined in that document.
“DWOC filed a motion in opposition to TRX’s motion to dismiss and a motion to strike the licensing-software agreement submitted in support of TRX’s motion to dismiss, in which, DWOC alleged, in pertinent part, that TRX had failed to properly authenticate the software-licensing agreement upon which it had based its motion to dismiss....
“On July 20, 2011, TRX filed a brief in support of its motion to dismiss, and it supplemented its evidentiary submission to include an affidavit of Dustin Hughes, the general manager for TRX. In that affidavit, Hughes attempted to authenticate the software-licensing agreement. ...
“On August 5, 2011, the trial court found that the forum-selection clause required that the claims be litigated in Tennessee, and it entered a judgment dismissing DWOC’s claims without prejudice. DWOC filed a postjudgment motion in which it, among other things, moved the trial court to strike Hughes’s affidavit. DWOC argued that Hughes’s affidavit should be stricken because, it contended, the affidavit was not properly notarized. The postjudgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.; the trial court did not rule on the motion to strike. DWOC timely appealed, and our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.”

DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1234-35 (Ala.Civ.App.2012) (footnote omitted).

In its appeal in DWOC, LLC v. TRX Alliance, Inc., supra, DWOC argued that the trial court had erred in failing to conduct a hearing on its postjudgment motion to consider its argument that Dustin Hughes’s affidavit submitted in support of TRX’s motion to dismiss was not properly notarized pursuant to § 12-21-4, Ala.Code 1975, and, therefore, that the affidavit was not sufficient to support the motion to dismiss. This court agreed, concluding that Hughes’s affidavit was void for failure to comply with § 12-21^4 and that the remaining materials were not sufficient to support the August 5, 2011, judgment dismissing DWOC’s claims. This court determined that, because there was probable merit to DWOC’s postjudgment motion, the trial court had erred in denying that motion without first conducting a hearing. “Accordingly, we reverse[d] the judgment and remand[ed] the cause to the trial court for further proceedings.” DWOC, LLC v. TRX Alliance, Inc., 99 So.3d at 1237.

After the release of this court’s opinion in DWOC, LLC v. TRX Alliance, Inc., supra, DWOC moved the trial court for a “status conference,” and the trial court scheduled the matter for a hearing. Approximately one week before that scheduled hearing, TRX filed a renewed motion to dismiss DWOC’s claims. In support of its renewed motion to dismiss, TRX submitted a new affidavit of Hughes that was properly notarized, the software-licensing agreement between DWOC and TRX Software Development, Inc. (“TRS Software”), and DWOC’s complaint. DWOC did not file a response to the renewed motion to dismiss. The trial court conducted a hearing on January 15, 2013.

On August 22, 2013, the trial court entered a judgment in which it granted DWOC’s September 6, 2011, motion to strike Hughes’s July 19, 2011, affidavit that was the subject of the appeal in DWOC, LLC v. TRX Alliance, Inc., supra. In addition, in its August 22, 2013, judgment, the trial court dismissed with prejudice DWOC’s claims against TRX. DWOC filed a postjudgment motion in which it asserted the same arguments it has raised on appeal. The trial court denied that postjudgment motion, and DWOC timely appealed. Our supreme court transferred the appeal to this court pursuant to § 12-2-7, Ala.Code 1975.

In the current appeal, DWOC first argues that the trial court failed to comply with this court’s “remand order” in DWOC, LLC v. TRX Alliance, Inc., supra. DWOC acknowledges that the trial court, in its August 22, 2013, judgment, struck Hughes’s original, July 19, 2011, affidavit. However, DWOC contends that the trial court erred in failing to enter an order denying TRX’s original motion to dismiss and that its failure to do so was a failure to follow this court’s remand instructions. In our original opinion, this court remanded the case for further proceedings: An order explicitly denying TRX’s original motion to dismiss might have been procedurally correct. However, on October 20, 2012, after DWOC had moved for a status conference after remand, TRX renewed its motion to dismiss. Thus, presumably in the interest of judicial economy, the trial court also considered the renewed motion to dismiss during the hearing it had scheduled on DWOC’s request for a status conference. DWOC has not argued that the trial court was without authority to consider the renewed motion to dismiss during that hearing. Further, DWOC has failed to argue in what manner it was harmed by the trial court’s consideration of the renewed motion to dismiss during the hearing granted on DWOC’s request for a status conference or by the trial court’s failure to explicitly deny the original motion to dismiss. In DWOC, LLC v. TRX Alliance, Inc., this court ordered the trial court to conduct further proceedings as appropriate, and we conclude that the trial court did so. DWOC has not demonstrated error in asserting its argument that the trial court failed to comply with this court’s remand instructions.

DWOC also contends that the trial court erred in granting TRX’s renewed motion to dismiss. We note, as we did in our original opinion in this matter, that because this action involves a motion to dismiss based on improper venue pursuant to Rule 12(b)(3), Ala. R. Civ. P., the materials TRX submitted in support of its renewed motion to dismiss did not convert that motion into a summary-judgment motion. See DWOC, LLC v. TRX Alliance, Inc., 99 So.3d at 1235 (explaining that “[o]ur supreme court has held, with regard to motions to dismiss based on venue, that 'a party may submit evidentiary matters to support a motion to dismiss that attacks venue.’ Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).”).

The record indicates that TRX Software is the parent company of TRX and that TRX is the sole defendant in this action. DWOC entered into the software-licensing agreement with TRX Software in November 2010; the forum-selection clause at issue is set forth in that software-licensing agreement. In this appeal, DWOC argues that, because TRX is not a party to the software-licensing agreement, the trial court erred in dismissing DWOC’s claims against TRX for improper venue based on the forum-selection clause. DWOC cites Russell v. Birmingham Oxygen Service, Inc., 408 So.2d 90 (Ala.1981), in which our supreme court held that a subsidiary could not seek to enforce a non-competition agreement entered into by its parent company. The court explained:

“A corporation is an entity created by compliance with statutory requirements. A corporation has the right to sue and be sued just like a natural person. Alabama Constitution, Article XII, § 240; Code 1975, § 10-2A-20(2). A corporation, just like an individual, must enforce its own rights and privileges.”

408 So.2d at 93.

DWOC argues that in this case, TRX, the subsidiary, cannot seek to enforce a forum-selection clause contained in the software-licensing agreement entered into by its parent company, TRX Software. We agree with DWOC that the evidence presented by TRX indicates that TRX and TRX Software are separate corporations and that, therefore, they are separate legal entities. Accordingly, we must conclude that TRX may not invoke the forum-selection clause in the software-licensing agreement, which is a contract between TRX Software and DWOC. Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d at 93.

DWOC is correct that the trial court erred in relying on the forum-selection clause contained in the software-licensing agreement in granting TRX’s motion to dismiss all of DWOC’s claims. However, this court may affirm a judgment, or a portion of a judgment, that is correct for any reason. Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 640 (Ala.1990). Accordingly, we must determine whether the trial court’s judgment, or a portion of it, may be affirmed on a basis other than improper venue.

In its breach-of-contract claim, DWOC alleged that TRX breached the software-licensing agreement. In order to assert a claim of breach of contract, DWOC was required to allege, among other things, that TRX breached a valid contract between TRX and DWOC. See Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 673 (Ala.2001) (“The elements of a breach-of-contract claim are: (1) the existence of a valid contract binding upon the parties in the action, (2) the plaintiffs own performance, (3) the defendant’s nonperformance, or breach, and (4) damage.”). Although DWOC did allege that “TRX” breached a contract, it is clear that, in making that assertion, DWOC refers to the same software-licensing agreement that was submitted in support of TRX’s motion to dismiss, i.e., to the software-licensing agreement between TRX Software and DWOC. TRX could not breach a contract or agreement to which it was not a party, and, therefore, DWOC has failed to properly allege the existence of a valid, binding contract between the parties. See Armstrong Bus. Servs., Inc. v. AmSouth Bank, supra. Therefore, DWOC has failed to state a valid breach-of-contract claim against TRX, and the trial court’s judgment of dismissal was correct as to the breach-of-contract claim. See Rule 12(b)(6), Ala. R. Civ. P.

This court is unable to determine whether the trial court’s judgment of dismissal might be correct as to DWOC’s claims alleging fraud, intentional interference with contractual relations, and negligence. In its complaint, DWOC named only TRX as a defendant. However, it appears that in some portions of the complaint, DWOC asserted in its allegations against TRX facts that might be related to actions taken by TRX Software or its representatives. It is unclear to what extent, if any, DWOC’s remaining claims might be dependent on the contract between it and TRX Software. Therefore, this court is unable to determine whether TRX’s assertion as to improper venue is implicated as to those claims or whether the motion to dismiss could be properly granted on another basis. Accordingly, we affirm the judgment of dismissal on the breach-of-contract claim, but we reverse the judgment of dismissal on DWOC’s other claims, and we remand the case for further proceedings on those remaining claims.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . We note that, as an alternate argument in its brief on appeal, DWOC contends that this court should treat its argument on the issue of the trial court's purported failure to comply with this court’s remand instructions as a petition for a writ of mandamus. The trial court’s August 22, 2013, judgment dismissed DWOC’s claims, and, therefore, it was a final judgment from which an appeal, rather than a petition for a writ of mandamus, would lie. See State v. Greenetrack, 154 So.3d 940, 951 (Ala.2014) (holding that the orders at issue ’’amount[ed] to final judgments subject to appeal, not interlocutory orders subject to review by a petition for a writ of mandamus”); and Nowlin v. Druid City Hosp. Bd., 475 So.2d 469 (Ala.1985) (holding that review by appeal was appropriate because the order was a final judgment and not an interlocutory order). Also, a petition for a writ of mandamus must be filed within the presumptively reasonable time, i.e., within 42 days from the entry of the "order,” and that time is not extended by the filing of a postjudgment motion. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003). Thus, even assuming that mandamus relief could be said to be appropriate, DWOC sought review of the August 22, 2013, judgment well in excess of the presumptively reasonable time for filing a petition for a writ of mandamus.

      . We also note that, unlike in Russell v. Birmingham Oxygen Service, Inc., supra, there has been no allegation that the software-licensing agreement was assigned to TRX or that TRX was intended to be the third-party beneficiary of the software-licensing agreement between TRX Software and DWOC.