author: MAIN, Justice.

text:
    EX PARTE The MAINTENANCE GROUP, INC.
    (In re MARC Transport LLC v. The Aviation Department, LLC, et al.)
    1160914
    Supreme Court of Alabama.
    November 22, 2017
    LaBella S. Alvis of Christian & Small, LLP, Birmingham, for petitioner.
    Walter A. Dodgen and David R. Beasley of Maynard, Cooper & Gale, P.C., Huntsville; and John A. Christy and Andrew J. Lavoie (withdrew 11/22/2017) of Schreeder, Wheeler & Flint, LLP, Atlanta, Georgia, for respondents.
   MAIN, Justice.

The Maintenance Group, Inc. ("Maintenance"), petitions this Court for a writ of mandamus directing the Madison Circuit Court to enter an order dismissing the claims against it based on lack of personal jurisdiction. We grant the petition and issue the writ.

I. Factual Background and Procedural History

This case arises from the sale of an aircraft. In February 2014, MARC Transport LLC ("MARC"), a Delaware limited-liability company with its principal place of business in Georgia, entered into an agreement to purchase a Hawker Beechjet aircraft ("the aircraft") from Pelican Bay Equipment Leasing, LLC ("Pelican Bay"), a Nevada limited-liability company with its principal place of business in Florida. MARC was assisted in its purchase of the aircraft by The Aviation Department, LLC ("TAD"), a Delaware limited-liability company with its principal place of business in Georgia, and TAD's principal, Timothy Fitch, a resident of Georgia. TAD is an aircraft-management and flight-services company, and TAD and MARC had entered into an agreement pursuant to which TAD was to supply the maintenance, pilot services, flight scheduling, and storage of an aircraft once one was purchased by MARC. TAD and Fitch located the aircraft in Fort Myers, Florida, and undertook to broker the purchase of the aircraft on MARC's behalf. Pelican Bay retained JetBrokers, Inc. ("JetBrokers"), a Nevada corporation, to represent it in the sale of the aircraft.

The purchase agreement gave MARC the right to conduct a pre-purchase inspection of the aircraft, which the parties agreed would be performed by Maintenance at its facility in Georgia. The inspection identified a list of maintenance issues, known in the industry as "discrepancies." Maintenance estimated that it would cost approximately $170,000 to correct all the discrepancies. Pelican Bay agreed to correct the discrepancies.

The purchase of the aircraft was closed on March 27, 2014, in Delaware. Pelican Bay flew the aircraft from Florida to Delaware for delivery. Fitch accepted delivery in Delaware on MARC's behalf and flew the aircraft to Georgia. Fitch and TAD then arranged for the aircraft to fly to Huntsville, Alabama, to transport MARC's officers as the first passengers following the purchase of the aircraft. The aircraft has been routinely flown to and from Huntsville since its purchase.

On November 4, 2015, MARC sued Maintenance, TAD, Fitch, and Pelican Bay in the Madison Circuit Court. The lawsuit alleged that the discrepancies discovered in the pre-purchase inspection had not been corrected by Pelican Bay before closing. MARC asserted claims of breach of contract against TAD and Pelican Bay and asserted claims of negligence, fraud, and civil conspiracy against all defendants. The complaint included the following specific factual allegations:

"9. In or around October of 2013, MARC's affiliate eLab Consulting Services Inc. ('eLab') entered into a business relationship with Fitch and/or TAD, to provide charter aircraft services.
"10. Beginning in or around October of 2013, Fitch and/or TAD provided charter aircraft services to eLab, primarily utilizing a Hawker Beechjet aircraft, and many flights were coordinated between Huntsville, Alabama and Atlanta, Georgia due to the business operations of eLab and its affiliated entities.
"11. On or about December 13, 2013, eLab formed MARC for the purpose of acquiring an aircraft. At the time of this pleading, MARC is a wholly-owned subsidiary of eLab.
"12. In or around December of 2013, Fitch and/or TAD attempted to negotiate the sale of a Hawker Beechjet aircraft previously chartered by eLab for acquisition by MARC; however, the parties were ultimately unable to reach agreement on the terms of sale for the aircraft.
"13. Thereafter, Fitch and/or TAD undertook to locate another Hawker Beechjet aircraft for acquisition by MARC.
"14. Effective January 1, 2014, TAD and MARC entered into an Aircraft Maintenance Agreement, providing for the management of MARC's aircraft by TAD, including maintenance, pilot services, flight scheduling, and storage of the aircraft, among other aviation services.
"15. On or about February 6, 2014, Fitch and/or TAD located the subject N848TC [the aircraft] for possible acquisition by MARC. As of February 6, 2014, [the aircraft] was owned and operated by Pelican Bay and was purportedly based at the Page Field airport ... in Fort Myers, Florida.
"16. Upon information and belief, Pelican Bay retained JetBrokers to represent it in the sale of [the aircraft].
"17. On or about February 10, 2014, Fitch, acting under the instruction, and/or on behalf, of MARC, contacted JetBrokers with the intent to negotiate the sale of [the aircraft] and provided a draft Aircraft Purchase Agreement and proposed purchase price.
"18. On or about February 11, 2014, JetBrokers responded to MARC's initial proposal and provided Fitch with a written acceptance of the proposed purchase price and a listing of requested revisions for the draft Aircraft Purchase Agreement.
"19. On or about February 14, 2014, MARC and Pelican Bay executed the final Aircraft Purchase Agreement (the 'Agreement').... The terms of the Agreement included a sales price of $800,000 and upon payment of an escrow amount of $100,000, gave MARC the right to have [the aircraft] inspected by an aircraft maintenance organization agreed upon by both parties and listed in the Agreement.
"20. On or about February 14, 2014, MARC, through its parent corporation eLab, tendered the payment of $100,000 in escrow per the terms of the Agreement.
"21. During the course of negotiations of the Agreement, Fitch and/or TAD recommended that MARC retain [Maintenance] to perform the pre-purchase aircraft inspection per the terms of the Agreement. As a result, [Maintenance] was listed in the Agreement as the entity which would conduct the pre-purchase inspection.
"22. MARC agreed to a payment of $19,000 for [Maintenance] to perform the pre-purchase aircraft inspection pursuant to the terms of the Agreement. TAD later included this $19,000 amount in an invoice dated April 1, 2014 to MARC through its parent corporation eLab, noting that it was for [Maintenance]'s performance of the pre-purchase aircraft inspection.
"23. Upon information and belief, as of February 14, 2014, [Maintenance] was an FAA-certified Repair Station and employed aircraft mechanics holding an FAA Airframe & Powerplant (A & P) certificate.
"24. On or about February 16, 2014, Fitch and/or TAD arranged for the transport of [the aircraft] from Fort Myers, Florida to the Peachtree-De[K]alb airport in Chamblee, Georgia ... to facilitate the pre-purchase aircraft inspection by [Maintenance].
"25. On or about February 17, 2014, [Maintenance] undertook to perform the pre-purchase aircraft inspection, and thereafter on February 27, 2014, provided Fitch with a pre-closing aircraft inspection report regarding [the aircraft], including a list of maintenance issues known in the industry as 'discrepancies' ('Discrepancies'). A copy of the pre-closing aircraft inspection report (the 'Pre-Closing Inspection Report') is attached hereto as Exhibit 2, and incorporated herein by reference. The Pre-Closing Inspection Report detailed approximately 49 Discrepancies, 41 of which are listed as affecting the FAA airworthiness status of the aircraft. The repair or replacement parts listed for correction of the Discrepancies were either required to maintain FAA airworthiness or recommended pursuant to the aircraft maintenance manual and accepted industry practices. [Maintenance] estimated the cost to correct all Discrepancies in the Pre-Closing Inspection Report to be approximately $170,000.00.
"26. Fitch advised MARC of the Pre-Closing Inspection Report and the estimated cost of $170,000.00 for repairs and replacements. Based upon the number of Discrepancies and cost to correct them, MARC instructed Fitch to advise Pelican Bay of the Discrepancies, and to propose a discount of the total sales price by the estimated $170,000.00 cost.
"27. Fitch communicated MARC's proposal to discount the total sales price by the estimated $170,000.00 cost to correct the Discrepancies to JetBrokers, who purportedly advised Pelican Bay.
"28. On March 4, 2014, Fitch advised MARC that Pelican Bay was unwilling to discount the sales price by the estimated $170,000.00 cost to correct the Discrepancies, but was willing to correct all the items in the Pre-Closing Inspection Report prior to closing.
"29. In addition, the Agreement provided that Pelican Bay would be responsible for correcting airworthiness issues identified in the pre-closing aircraft inspection. As a result, each of the Discrepancies affecting FAA airworthiness were again listed as being the responsibility of Pelican Bay in the Agreement's Appendix B 'Preliminary Acceptance Certificate' signed and initialed by both parties on March 4, 2014....
"30. Based upon Fitch's affirmative statements to MARC that Pelican Bay was willing to correct all the noted Discrepancies in the Pre-Closing Inspection Report prior to closing, and that the maintenance required would take approximately ten (10) days to complete, MARC agreed to proceed with the acquisition of [the aircraft], including arranging for secured financing for the acquisition.
"31. Based upon statements by Fitch that the maintenance regarding all noted Discrepancies in the Pre-Closing Inspection Report had been completed, MARC proceeded with closing and consummating the acquisition of [the aircraft] on March 27, 2014, including closing of secured financing for the aircraft through an FDIC-insured commercial bank.
"32. Pelican Bay agreed to make delivery of the [aircraft] in Delaware and arranged for [the aircraft] to be flown to Delaware on March 27, 2014, for delivery to MARC. Thereafter Fitch advised MARC that he had taken delivery of [the aircraft] from Pelican Bay in Delaware as agreed, and had returned to Georgia with full right, title, interest and possession of [the aircraft] on behalf of MARC.
"33. On March 29, 2014, Fitch and TAD arranged for [the aircraft] to fly to Huntsville, Madison County, Alabama, to transport officers of MARC as the first passengers on [the aircraft] following MARC's acquisition.
"34. Contrary to express representation by Fitch to MARC, as of March 29, 2014, some of the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been corrected. Despite this fact, Fitch and TAD flew [the aircraft] to Huntsville, Madison County, Alabama, to transport officers of MARC in [the aircraft].
"35. As of March 27 and 29, 2014, Fitch, TAD, [Maintenance], and Pelican Bay knew that some of the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been repaired or otherwise corrected.
"36. Despite express knowledge that the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been corrected for [the aircraft], Fitch, TAD, [Maintenance], and Pelican Bay knowingly suppressed or misrepresented such material facts to MARC, and MARC's passengers in [the aircraft].
"37. Since March 29, 2014, Fitch and TAD have reportedly and routinely provided flight services into and out of Madison County, Alabama, under TAD's management and control, including the scheduling of flights and engagement of pilots to operate [the aircraft], for the purpose of transporting passengers who reside in Madison County, Alabama.
"38. Since March 29, 2014, Fitch and TAD have repeatedly and routinely provided flight services into and out of Madison County, Alabama, using [the aircraft], with the express knowledge that the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been corrected for [the aircraft].
"39. Further, since March 29, 2014, Fitch and TAD have repeatedly and routinely conducted the transport of passengers into and out of Madison County, Alabama, using [the aircraft], while actively suppressing or otherwise misrepresenting that the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been corrected for [the aircraft].
"40. On several occasions since March 27, 2014, Fitch and TAD have represented to MARC that [the aircraft] has undergone additional and supplemental aircraft inspections, maintenance and repairs, and have charged MARC for such services purportedly conducted by [Maintenance]. In doing so, Fitch, TAD, and [Maintenance] continued to actively suppress and affirmatively misrepresent that the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, had not been corrected for [the aircraft] prior to the March 27, 2014, closing, or since that time until the date of this pleading.
"41. During the course of the ongoing suppression and active misrepresentations regarding the Discrepancies of [the aircraft], Fitch, TAD, and [Maintenance] have repeatedly and routinely arranged or facilitated the transport of passengers into and out of Madison County, Alabama, using [the aircraft] at increased risk to said passengers and MARC.
"42. Upon information and belief, Fitch and TAD became aware of the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, and conspired with [Maintenance] and/or Pelican Bay to actively suppress the non-repair of such Discrepancies from MARC. This suppression was done with the intent to induce MARC to close on the acquisition of [the aircraft], to the financial benefit of Fitch, TAD, [Maintenance], and Pelican Bay.
"43. Upon information and belief, Fitch, TAD, [Maintenance], and Pelican Bay determined to knowingly suppress the non-repair of the Discrepancies, many of which are listed as affecting the FAA airworthiness status of the aircraft and the remainder of which are recommended for repair or replacement pursuant to the aircraft maintenance manual and accepted industry practices, despite the known risks resulting from such material Discrepancies.
"44. Upon information und belief, Fitch, TAD, [Maintenance], and Pelican Bay, acting in concert with each other, wrongfully represented to MARC that all noted Discrepancies, whether required for FAA airworthiness or recommended based upon the aircraft maintenance manual or accepted industry practices, had been repaired prior to the March 27, 2014, closing by Pelican Bay, and continued to perpetuate MARC's reliance upon such representations.
"...."

On March 10, 2016, Maintenance moved to dismiss the claims against it based on lack of personal jurisdiction. In support of its motion, Maintenance attached the affidavit of its president and chief executive officer, Dan Furlong, who testified to Maintenance's lack of contacts with Alabama. Regarding Maintenance's work performed on the aircraft, Furlong's affidavit stated:

"[Maintenance] performed in Georgia the inspection and servicing of the aircraft at the request of Defendants Timothy Fitch and [TAD] and Plaintiff [MARC], the purchaser of the airplane. The inspection and service work was requested by the aforementioned Defendants and Plaintiff, all of whom are domiciled or based in the metropolitan area of Atlanta, Georgia. All work performed by [Maintenance] with respect to the airplane in question was performed at [Maintenance]'s place of business at 1961 Sixth Street, Atlanta, GA 30341. [Maintenance] has not performed any work, servicing, or inspections on said airplane at any location other than at its aforementioned place of business."

MARC responded to the motion to dismiss and attached the affidavit of one of its members, Christie Lurie. Lurie's affidavit attested to many of the factual allegations asserted in MARC's complaint. Lurie also testified that she and her husband, who is also a member of MARC, are residents of Alabama and that at least one member of MARC has resided in Alabama since MARC's formation in 2013. Further, Lurie stated:

"18.
"Throughout all of the negotiations for [MARC]'s purchase of the Aircraft and the Aircraft's subsequent maintenance, Maintenance interacted and dealt exclusively with Fitch, [TAD], and/or Pelican Bay, and [MARC] was not privy to their interactions. Maintenance was the only defendant with firsthand knowledge of what Discrepancies existed and whether, and to what extent, those Discrepancies had been resolved, as agreed to and required.
"19.
"Further, Fitch, [TAD], and Pelican Bay (either directly or through its agent, JetBrokers) acted in concert in dealing with Maintenance with respect to the Deficiencies, which were never resolved or were merely repaired, rather than replaced as had been recommended and was required.
"20.
"For those reasons, Maintenance either knew or could and should have known, through the exercise of reasonable diligence, that the Discrepancies had not been resolved when the Aircraft was delivered to Fitch in March 2014 for eventual delivery to [MARC].
"....
"22.
"Instead, Maintenance's actions were part of a larger course of concerted action to sell the Aircraft to [MARC] without incurring the costs of fully resolving the Discrepancies.
"23.
"Maintenance profited materially from this conduct, both because the Aircraft was in fact sold and delivered without the Discrepancies having been resolved and because Maintenance did not incur the expenses of resolving the Discrepancies (contrary to its representations to that effect)."

After a hearing, the trial court denied Maintenance's motion to dismiss on June 8, 2017. This petition followed.

II. Standard of Review

A petition for a writ of mandamus is the proper method by which to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Ex parte Merches, 151 So.3d 1075, 1078 (Ala. 2014) ; Ex parte Alamo Title Co., 128 So.3d 700, 707 (Ala. 2013). In such a case, this Court applies the following standard of review:

" 'An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction.' Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala. 2002). 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 at 1078.

III. Analysis

Maintenance contends that it lacks sufficient minimum contacts with the State of Alabama to permit the Madison Circuit Court to exercise personal jurisdiction over it. We agree.

Alabama's long-arm rule extends to the permissible limits of due process. See Ex parte Edgetech I.G., Inc., 159 So.3d 629, 633 (Ala. 2014). The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient "minimum contacts" with the forum state. See International Shoe Co. v. Washington 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This Court has explained:

" '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.' "

Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002) (quoting Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result)). In this case, MARC agrees that Maintenance is not subject to general personal jurisdiction.

With regard to specific jurisdiction, this Court has recently quoted with approval the following summary by the Supreme Court of Oregon of the United States Supreme Court's holdings:

" 'Specific jurisdiction "depends on an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Goodyear [Dunlop Tires Operations, S.A. v. Brown ], [564] U.S. [915] at [919], 131 S.Ct. at 2851 [ (2011) ] (alteration in original); see Willemsen v. Invacare Corp. ], 352 Or. [191] at 197, 282 P.3d 867 [ (2012) ]. In other words, specific jurisdiction "is confined to adjudication of 'issues deriving from, or connected with, the very controversy that establishes jurisdiction.' " Goodyear, [564] U.S. at [919], 131 S.Ct. at 2851 (quoting von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) ).
" 'The analytical framework for determining whether specific jurisdiction exists consists of three inquiries. See [ State ex rel.] Circus Circus [Reno, Inc. v. Pope], 317 Or. [151,] 159-60, 854 P.2d 461[, 465 (1993) (en banc) ] (laying out analytical framework). First, the defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958). The requirement that a defendant purposefully direct activity to the forum state precludes the exercise of jurisdiction over a defendant whose affiliation with the forum state is "random," "fortuitous," or "attenuated," or the "unilateral activity of another party or a third person." Burger King [Corp. v. Rudzewicz ], 471 U.S. [462] at 475, 105 S.Ct. 2174 [ (1985) ] (internal citation marks omitted); see also State ex rel. Jones v. Crookham, 296 Or. 735, 741-42, 681 P.2d 103[, 107] (1984) (requirements of due process not met when defendant's contacts with Oregon are "minimal and fortuitous").
" 'Second, the action must "arise out of or relate to" the foreign defendant's "activities in the forum State." Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed. 2d 404 (1984) ; Burger King, 471 U.S. at 472, 105 S.Ct. 2174. Stated differently, for an exercise of specific jurisdiction to be valid, there must be "a 'relationship among the defendant, the forum, and the litigation.' " Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed. 2d 683 (1977) ). In further explaining that relationship, the Supreme Court recently highlighted two means by which specific jurisdiction attaches: Jurisdiction may attach if a party engages in "activity [that] is continuous and systematic and that activity gave rise to the episode-in-suit." Goodyear, [564] U.S. at [923], 131 S.Ct. at 2853 (internal quotation marks omitted; emphasis in original). Jurisdiction may also attach if a party's "certain single or occasional acts in a State [are] sufficient to render [him or her] answerable in that State with respect to those acts, though not with respect to matters unrelated to the forum connections." Id. (internal quotation marks omitted). Thus, as articulated by the Court, an exercise of specific jurisdiction is appropriate in cases where the controversy at issue "derive[s] from, or connect[s] with" a defendant's forum-related contacts. Id. at [919], 131 S.Ct. at 2851.
" 'Finally, a court must examine whether the exercise of jurisdiction over a foreign defendant comports with fair play and substantial justice, taking into account various factors deemed relevant, including an evaluation of the burden on a defendant, the forum state's interest in obtaining convenient and effective relief, the interstate judicial system's interest in efficient resolution of controversies, and furthering fundamental social policies. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed. 2d 92 (1987) ; Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174 ; see Circus Circus, 317 Or. at 159-60, 854 P.2d 461.' "

Hinrichs v. General Motors of Canada, Ltd., 222 So.3d 1114, 1121-23 (Ala. 2016) (quoting Robinson v. Harley-Davidson Motor Co., 354 Or. 572, 577-80, 316 P.3d 287, 291-92 (2013) ).

MARC concedes that Maintenance is not subject to "ordinary" specific personal jurisdiction. Rather, MARC contends that Maintenance is subject to personal jurisdiction in Alabama under a theory of specific jurisdiction based on conspiracy.

It is true that this Court has recognized "that, in an appropriate case, specific jurisdiction can be based upon the purposeful conspiratorial activity of a nonresident defendant aimed at an Alabama plaintiff." Ex parte Alamo Title Co., 128 So.3d 700, 713 (Ala. 2013). Under the "conspiracy theory" of specific jurisdiction, when a conspirator commits an overt act in furtherance of the conspiracy in the forum sufficient to subject that conspirator to jurisdiction in the forum, the conspirator's contacts with the forum may be imputed to a nonresident coconspirator. This "conspiracy theory" of specific personal jurisdiction is grounded on the " 'time honored notion that the acts of [a] conspirator in furtherance of a conspiracy may be attributed to the other members of the conspiracy.' " Textor v. Board of Regents of Northern Illinois Univ., 711 F.2d 1387, 1392 (7th Cir. 1983) (quoting Gemini Enters., Inc. v. WFMY Television Corp., 470 F.Supp. 559, 564 (M.D. N.C. 1979) ). As we explained in Alamo :

"To establish personal jurisdiction under a conspiracy theory, ' "the plaintiff must plead with particularity 'the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.' " ' Ex parte McInnis, 820 So.2d [795] at 806-07 [ (Ala. 2001) ] (quoting Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) ). The elements of civil conspiracy in Alabama are: (1) concerted action by two or more persons (2) to achieve an unlawful purpose or a lawful purpose by unlawful means. Luck v. Primus Auto. Fin. Servs., Inc., 763 So.2d 243, 247 (Ala. 2000).
" ' " '[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, "the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint." Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala. 2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) ). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995) ("When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) [i.e., for lack of personal jurisdiction], 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) (footnote omitted)."
" ' Ex parte Unitrin, Inc., 920 So.2d 557, 560-61 (Ala. 2005).'
" Ex parte United Ins. Cos., 936 So.2d 1049, 1053-54 (Ala. 2006)...."

128 So.3d at 713. Furthermore: " ' "Bald speculation" or a "conclusionary statement" that individuals are co-conspirators is insufficient to establish personal jurisdiction under a conspiracy theory.' " Ex parte McInnis, 820 So.2d 795, 806-07 (Ala. 2001) (quoting Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) ).

In the present case, even accepting that MARC has sufficiently alleged and supported its claim that Maintenance participated in a civil conspiracy so as to subject it to jurisdiction in this State, there must be an overt act or acts in furtherance of the conspiracy committed within Alabama, and that act or those acts must amount to a constitutionally sufficient contact with Alabama that supports specific personal jurisdiction. Here, MARC has not alleged that Maintenance committed any act in, or has had any relevant direct contact with, the State of Alabama. Thus, if there is any basis for personal jurisdiction over Maintenance, we must look to the contacts with Alabama of Maintenance's alleged coconspirators.

Under a conspiracy theory of jurisdiction, in order to attribute an act of a coconspirator to Maintenance, the act must be in furtherance of the conspiracy. In this case, the purported aim of the alleged conspiracy was to "sell the Aircraft to [MARC] without incurring the costs of fully resolving the Discrepancies." The only contact with Alabama alleged by MARC is that, following MARC's purchase of the aircraft, Fitch and TAD, MARC's alleged coconspirators, routinely transported passengers into and out of Madison County, Alabama, on the aircraft. We agree with Maintenance that this contact alone is insufficient to establish personal jurisdiction as to Fitch or TAD and thus as to Maintenance.

First, we are unclear how the mere operation of the aircraft following its purchase by MARC can be considered an act in furtherance of the alleged conspiracy, which was to induce MARC to purchase the aircraft without the conspirators incurring the expense of repairing the discrepancies. To this end, it is hard to understand how the post-purchase operation of the aircraft aided the conspiracy. The aircraft was purchased to be flown; its particular flight path and destination appear trivial, and certainly not integral to the alleged conspiracy. Thus, MARC could not meet its burden of establishing that the flights into Alabama were "acts within [Alabama] taken in furtherance of the conspiracy." McInnis, 820 So.2d at 806-07.

Second, even if the flights to and from Alabama could somehow implicate Maintenance, they remain of questionable jurisdictional relevance. The hallmark of specific jurisdiction is that the action arises from or relates to the defendant's activities in the forum state, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), i.e., that the activity "gave rise to the episode-in-suit." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). We recently explained in Hinrichs:

" Walden [v. Fiore, 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014),] makes it clear that, absent general jurisdiction, the precedents of the United States Supreme Court require that, for specific jurisdiction to exist, [the defendant's] in-state activity must 'g[i]ve rise to the episode-in-suit,' Goodyear, 564 U.S. at 923, and involve ' "adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction," '
564 U.S. at 919 [131 S.Ct. 2846]. Moreover, Walden clearly holds that whether a forum state can constitutionally assert specific jurisdiction over a nonresident defendant ' "focuses on 'the relationship among the defendant, the forum, and the litigation.' " ' Walden, 571 U.S. at 284, 134 S.Ct. at 1121 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed. 2d 790 (1984), quoting in turn Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed. 2d 683 (1977) ). Walden then clearly instructs that if a state is to exercise jurisdiction consistent with due process, 'the defendant's suit-related conduct must create a substantial connection with the forum State.' 571 U.S. at 284, 134 S.Ct. at 1121 (emphasis added)."

222 So.3d at 1137-38.

The gist of the allegations in the complaint is that the defendants, acting in concert to induce MARC to purchase the aircraft, fraudulently misrepresented that the discrepancies identified in the pre-purchase inspection had been corrected and fraudulently suppressed information to the contrary. By and large, however, the alleged fraudulent misrepresentations/suppressions appear to have occurred before the closing on the purchase of the aircraft, concerned conduct outside Alabama, and involved entities that were not residents of Alabama. The post-purchase flights into Alabama have, at best, a tenuous connection to the material allegations of tortious conduct. Accordingly, those contacts lack the "suit-related nexus" to Alabama required for specific jurisdiction to attach. Hinrichs, 222 So.3d at 1140. See also Ex parte City Boy's Tire & Brake, Inc., 87 So.3d 521 (Ala. 2011) (purchase of tire in Florida was an "isolated occurrence" that was not sufficient to subject the repair shop in Florida to personal jurisdiction in Alabama on claim that its failure to inspect and notify the plaintiff that her other tires needed replacing caused accident in Alabama).

In sum, MARC alleges tortious conduct related to the sale of an aircraft negotiated and consummated outside Alabama by nonresident parties, the only contact with Alabama being post-purchase travel into and out of Alabama. We conclude that, based on the evidence before the trial court, MARC has not established a sufficient nexus between Maintenance's purposeful activity within Alabama and the claims made in its action sufficient to subject Maintenance to personal jurisdiction in an Alabama court. Accordingly, Maintenance has shown a clear legal right to the dismissal of the complaint on the ground that the trial court lacks personal jurisdiction over it.

IV. Conclusion

For the above reasons, we grant the petition for the writ of mandamus and direct the trial court to vacate its order denying Maintenance's motion to dismiss and to enter an order dismissing MARC's claims against Maintenance on the basis that it lacks personal jurisdiction.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Wise, and Sellers, JJ., concur.

Murdock and Bryan, JJ., concur in the result.

Shaw, J., dissents.

      Pelican Bay also filed a petition for writ of mandamus from the denial of its motion to dismiss based on similar personal-jurisdiction grounds (case no. 1160835). MARC and Pelican Bay reached a settlement agreement, and Pelican Bay's petition was dismissed on the joint motion of the parties.

      We note that courts and commentators have questioned the constitutional limits of conspiracy jurisdiction. See, e.g., Ex parte Reindel, 963 So.2d 614, 621 (Ala. 2007) ; Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 428 n.2 (D.C. Cir. 1991). Issues as to the constitutional boundaries of conspiracy jurisdiction, however, are not directly raised by this petition; thus, we do not directly address them.

      We recognize that, for the purpose of diversity jurisdiction in federal courts, a limited-liability company's citizenship is determined by the citizenship of its members. See Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). MARC thus contends that, because two of MARC's members were Alabama residents, MARC should be considered an Alabama plaintiff for personal-jurisdictional purposes. It appears, however, that the rule for determining citizenship for diversity-jurisdiction purposes has never been extended to the personal-jurisdiction context, and we agree with Maintenance that doing so raises obvious due-process concerns. Accordingly, we do not consider the individual citizenship of MARC's members in our analysis.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    EX PARTE Matthew GALLANT
    (In re Matthew Gallant v. Rebecca Gallant)
    2160869
    Court of Civil Appeals of Alabama.
    November 3, 2017
    Austin Burdick of Burdick Law Firm, Bessemer, for petitioner.
    Chip Cleveland of The Cleveland Firm, LLC, Prattville, for respondent.
   MOORE, Judge.

Matthew Gallant ("the father") petitions this court for a writ of mandamus directing the Elmore Circuit Court to dismiss a contempt and modification complaint filed by Rebecca Gallant ("the mother") and to vacate orders it entered in response to the mother's complaint. We deny the father's petition.

Procedural History

These parties have previously appeared before this court in Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014) ; Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016) (" Gallant II"); and Gallant v. Gallant, [Ms. 2151010, Feb. 17, 2017] 229 So.3d 797 (Ala. Civ. App. 2017) (" Gallant III"). In Gallant II, this court summarized the procedural background of the case:

"On August 29, 2009, the trial court entered a judgment in case number DR-09-900071, divorcing the father and [the mother]. That judgment, which incorporated a settlement agreement entered into by the parties, awarded the mother sole physical custody of the parties' five children, subject to the father's right to visitation, awarded the parties joint legal custody of the children, and ordered the father to pay child support and other financial support to the mother. On May 5, 2012, the father filed a contempt petition, which was assigned case number DR-09-900071.01. He later amended his petition to request that the custody provisions of the divorce judgment be modified to award him sole legal and physical custody of the parties' children. In that same action, the mother filed a counterclaim seeking modification of the custody and visitation provisions of the divorce judgment, as well as a finding of contempt against the father. On February 28, 2014, the trial court entered a judgment that, among other things, awarded the mother sole legal and physical custody of the children and modified the visitation rights of the father. This court affirmed that judgment. See Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014).
"On June 18, 2014, the father filed a petition alleging that the mother had contemptuously violated various provisions of the 2009 divorce judgment and seeking custody of the children. That petition was assigned case number DR-09-900071.02. On July 28, 2014, the mother filed a counterclaim, which was assigned case number DR-09-900071.03. After a trial, the trial court, on January 19, 2016, denied the father's petition and the mother's counterclaim by rendering a single judgment that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. Neither party appealed from the judgment entered in those cases.
"On June 21, 2016, the mother filed a contempt and modification complaint under case number DR-900071.03. On August 10, 2016, the father filed a motion to dismiss that contempt and modification complaint. In that motion, the father also moved the trial court to set aside the January 19, 2016, judgment entered in case number DR-09-900071.02 and in case number DR-09-900071.03 for lack of subject-matter jurisdiction. The trial court, on August 12, 2016, denied the father's motion to dismiss and his motion to set aside by rendering a single order that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. The father filed his petition for a writ of mandamus on August 30, 2016."

221 So.3d at 1121-22.

In Gallant II, the father filed a petition for a writ of mandamus, arguing that the trial court had erred in denying his motion to set aside the January 19, 2016, judgment and that the trial court had erred in denying his motion to dismiss the contempt and modification complaint filed by the mother, in case number DR-09-900071.03, on June 21, 2016. We concluded that the father had filed his motion to set aside the January 19, 2016, judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., and elected to treat that portion of the father's petition as an appeal that would be, and was, addressed separately in appeal number 2151010. 221 So.3d at 1122. With regard to the father's motion to dismiss, we granted in part and denied in part the father's petition for a writ of mandamus. Specifically, we determined that the trial court did not have subject-matter jurisdiction over the mother's claim regarding visitation and/or modification, and we issued the writ of mandamus to require the trial court to dismiss that claim. 221 So.3d at 1123. We observed that the father's motion to dismiss relied solely on the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-3B-101 et seq., and, thus, because the mother's claims that the father had contemptuously failed to pay child support, extracurricular fees, and attorney's fees did not involve child-custody matters, we construed the father's motion to dismiss as relating solely to the visitation claims made in the mother's complaint. Id. Accordingly, we denied the father's petition insofar as the mother's claims addressed the father's alleged contemptuous failure to abide by the trial court's earlier judgments related to his obligations to pay child support, extracurricular fees, and attorney's fees. Id. We also denied the father's petition with regard to the mother's claims that the father had contemptuously violated the trial court's visitation orders. Id.

In Gallant III, which addressed appeal number 2151010, we affirmed in part and reversed in part the trial court's August 12, 2016, judgment denying the father's motion to set aside the trial court's January 19, 2016, judgment for lack of subject-matter jurisdiction. Specifically, we decided that, to the extent the trial court's January 19, 2016, judgment spoke to the parties' allegations of contempt resulting from failures to comply with the divorce judgment and modifications thereto, the trial court was within its jurisdiction to enforce its prior judgments; thus, we affirmed the denial of the father's Rule 60(b), Ala. R. Civ. P., motion insofar as it related to those claims. 229 So.3d at 802. We also determined that, because neither party continued to reside in Alabama and this state could no longer exercise jurisdiction over the parties pursuant to the UCCJEA at the time the trial court's January 19, 2016, judgment was entered, the trial court did not have subject-matter jurisdiction over the parties' respective visitation- and custody-modification claims. 229 So.3d at 801-02. Accordingly, we determined that the trial court had erred when it denied the father's Rule 60(b) motion seeking to set aside the trial court's January 19, 2016, judgment addressing those claims insofar as they spoke to a modification of visitation or custody of the children. Id. Accordingly, we reversed the August 12, 2016, judgment in part and remanded the cause for the entry of a judgment consistent with our opinion.

On remand, the trial-court judge who entered the January 19, 2016, judgment entered an order on February 18, 2017, vacating that judgment insofar as it "relates to issues of custody and/or visitation of the minor children of the parties" and recusing himself from further involvement with the case. The case was reassigned to a different judge, and, on April 19, 2017, the new trial judge entered an order stating that the trial court "has jurisdiction on the contempt issues as described in the .03 case and for the issues of the attorneys fees in the .02 case as the Court of Civil Appeals did not address the same." The trial court then set a hearing on the contempt issues for June 8, 2017. On April 21, 2017, the father filed a "motion to reconsider" with regard to a renewed motion to dismiss and a motion to transfer that had allegedly been filed by him. The mother filed an amended complaint in case number DR-09-900071.03 on May 24, 2017, asserting additional counts of contempt against the father. The father filed an "objection/answer" to the mother's amended contempt complaint on August 2, 2017.

On August 7, 2017, the father filed a petition for a writ of mandamus with this court. The father filed an amendment to his petition on August 14, 2017, and the mother filed an answer to the father's petition, as amended.

Analysis

In his amended petition, the father raises four issues to be addressed by this court: (1) whether the trial court abused its discretion by failing to vacate that part of the January 19, 2016, judgment awarding the mother attorney's fees; (2) whether the trial court erred by failing to transfer the case to Maine; (3) whether the trial court erred by failing to dismiss the action for lack of in personam jurisdiction; and (4) whether the father's due-process rights were violated by the failure of both the mother and the trial court to comply with Rule 70A, Ala. R. Civ. P. We address these issues out of turn.

"Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when '(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked.' Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997) ). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So.2d 681 (Ala. 2000) ; Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala. 2000) ; Ex parte Walters, 646 So.2d 154 (Ala. Civ. App. 1994)."

Ex parte Amerigas, 855 So.2d 544, 546-47 (Ala. Civ. App. 2003).

We note first that the issue raised by the father in his mandamus petition, as amended, with regard to his due-process rights having been violated may be reviewed on appeal once the trial court enters a final judgment. "A petition for a writ of mandamus may not be granted where the petitioner has an adequate remedy by appeal." Ex parte Amerigas, 855 So.2d at 547. Accordingly, the father's petition is denied as to that issue.

With regard to the father's issue asserting that the trial court erred by failing to transfer the case, we note that the materials before this court do not reveal that a motion to transfer was filed by the father in the trial court, and there is no indication that the trial court entered a ruling adverse to the father on any such motion. The only mention of a motion to transfer in the materials presented to this court by the father appears in the father's April 21, 2017, motion to reconsider, which suggests that the issue was argued at the April 19, 2017, hearing. To the extent the trial court's April 19, 2017, order, which does not mention a motion to transfer by the father or a denial thereof, may be considered a denial of any such motion, we note that the father's motion to reconsider did not toll the time for filing a petition for a writ of mandamus from that interlocutory order. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003). The father filed his petition for a writ of mandamus with this court on August 7, 2017, which is beyond the 42-day presumptively reasonable period for filing a petition for a writ of mandamus addressed to the April 19, 2017, order. See Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007). Accordingly, as to the father's issue regarding a transfer of the case, his petition is untimely and we decline to consider that issue.

With regard to the father's issue asserting that the trial court lacks personal jurisdiction over him, we note that the father challenged the trial court's personal jurisdiction both in his answer to the mother's June 21, 2016, complaint and in his subsequent motion to dismiss that complaint. The trial court denied the father's motion to dismiss on August 12, 2016. The father raised the issue of personal jurisdiction before this court in Gallant II; we concluded, however, that because the father had failed to sufficiently cite authority in support of that argument as required by Rule 28, Ala. R. App. P., we would not consider that issue. 221 So.3d at 1122 n.1. Since the entry of the trial court's order denying the father's motion to dismiss, the trial court has made no further ruling adverse to the father on the issue of personal jurisdiction. Even assuming that the trial court's April 19, 2017, order was adverse to the father with regard to his previously asserted argument regarding personal jurisdiction, the father failed to timely petition this court for a writ of mandamus thereafter. See Norman, supra. Accordingly, the father's petition is due to be denied with regard to his argument regarding personal jurisdiction.

The father also asserts in his mandamus petition, as amended, that the trial court erred in failing to dismiss the mother's claim for contempt regarding the father's alleged failure to pay attorney's fees that had been awarded in the January 19, 2016, judgment. The father argues that, because this court set aside the trial court's January 19, 2016, judgment with regard to the mother's claims regarding modification and visitation in Gallant II, the trial court could not have awarded attorney's fees on the basis of those claims. Citing Neny v. Neny, 989 So.2d 565, 571 (Ala. Civ. App. 2008), for the proposition that, absent a finding of contempt, attorney's fees may not be awarded in an action alleging contemptuous conduct, the father asserts also that, because the trial court did not find either party in contempt, there was no other basis upon which to award attorney's fees, and, thus, he says, the trial court lacked subject-matter jurisdiction to enter that award. We interpret the father's arguments as an attempt to attack the award of attorney's fees in the January 19, 2016, judgment for lack of jurisdiction.

In Ex parte Landry, 117 So.3d 714, 718-19 (Ala. Civ. App. 2013), this court stated, in pertinent part:

"Interlocutory orders may be reviewed by a petition for a writ of mandamus. Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1049 (Ala. 1996). However, it is not ' " 'the proper function of [a petition for a writ of mandamus] to re-examine, or correct errors in any judgment or decree....' " ' Ex parte C & D Logging, 3 So.3d 930, 936 (Ala. Civ. App. 2008) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881) ). A petition for a writ of mandamus ' "cannot be used as a substitute for an appeal." ' Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1045 (Ala. Civ. App. 2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998) )."

As to this issue, the father seeks this court's review of the trial court's January 19, 2016, judgment. The errors he speaks of, however, may be addressed in either a Rule 60(b), Ala. R. Civ. P., motion speaking directly to the January 19, 2016, judgment or in an appeal to this court upon the entry of a final judgment in the present case. Because the father has another adequate remedy available to him to challenge the propriety of the attorney's fee awarded in the January 19, 2016, judgment, the father's petition is due to be denied. See Ex parte Amerigas, supra.

Based on the foregoing, we conclude that the father's petition is due to be denied.

PETITION DENIED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      Neither the father nor the mother submitted as an exhibit to this court a renewed motion to dismiss or a motion to transfer that had been filed by the father.

      After the father filed his mandamus petition with this court on August 7, 2017, the proceedings continued before the trial court. On August 10, 2017, the trial court entered an order on the mother's contempt claims. Because that order did not address the mother's request for declaratory relief regarding the sale of the marital residence and the distribution of the proceeds derived from that sale, that order failed to dispose of all the claims raised in the mother's complaint and is not yet final. Thus, the remedy of an appeal is not yet available to the father. Because the trial court's order was entered after the father filed his petition for a writ of mandamus with this court, the propriety of the August 10, 2017, order and the issues raised by the father insofar as they may relate to that order are not before us at this time.

      This court determined in Gallant II that the father's August 10, 2016, motion to set aside the January 19, 2016, judgment was filed pursuant to Rule 60(b)(4), Ala. R. Civ. P. 221 So.3d at 1122. As discussed previously, we also determined in that case that the mother's assertion that the father had contemptuously failed to pay attorney's fees did not involve child-custody matters. Id. at 1123. In Gallant III, this court affirmed the trial court's judgment entered on the father's Rule 60(b)(4) motion "to the extent that it spoke to the parties' contempt claims and other claims that did not involve child-custody matters." 229 So.3d at 802. In accordance with this court's previous opinions, we note that, to date, the father has failed to raise the issue of the trial court's lack of jurisdiction with regard to its award of attorney's fees in the January 19, 2016, judgment before the trial court at any time. We note further that the father has failed to make any argument in his petition indicating that the trial court lacked jurisdiction to enter its April 19, 2017, order, instead limiting his arguments to the trial court's purported lack of jurisdiction to award attorney's fees to the mother in the January 19, 2016, judgment.


author: PER CURIAM.

text:
    S.A.M. v. M.H.W.
    2160686
    Court of Civil Appeals of Alabama.
    November 3, 2017
    Jacquelyn H. Wesson of Wesson & Wesson, LLC, Warrior, for appellant.
    William W. Lawrence, Talladega; and S. Dale Price, Sylacauga, for appellee.
   PER CURIAM.

S.A.M. ("the mother") and M.H.W. ("the father") are the unmarried parents of S.M. ("the child"), who was born on December 2, 2012. In October 2015, the father filed in the Talladega Juvenile Court a petition seeking to establish paternity and seeking custody of the child. The record reveals the following facts.

The mother and the father met in December 2009. They dated for a few months, and the father, who is a pharmacist, moved to Alaska. The parents kept in touch, and, in March 2012, the mother went to Alaska to visit the father. She became pregnant during her two-week visit, but the parents did not continue a romantic relationship after that visit.

At the time of the child's birth, the mother was employed as a camp director at a YMCA camp in Alabama; as part of her salary package, she was provided a home at the camp in which she and the child resided year-round. However, in late November 2014, the mother lost her employment.

Because she had lost her employment and had no immediate position available to her, the mother decided to take a four-month-long trip with a friend and the child. The mother and her friend camped and, at times, stayed in motels. The mother and the child also slept in the back of the mother's Jeep vehicle. They visited Yosemite National Park, Joshua Tree National Park, Zion National Park, "Red Rock," and the Grand Canyon. The mother and her friend met other friends during the trip, including the mother's then-boyfriend, at different locations. The mother explained that her then-boyfriend would sleep in his own tent when he spent the night with them; she admitted that she might have spent some evenings in her then-boyfriend's tent, but, she said, she would do so only after putting the child to sleep in her tent or the Jeep vehicle and that she would return to her tent or the Jeep vehicle to sleep. The father, who had been on a trip to the Coachella music festival held in Indio, California, met them at Joshua Tree National Park; he stayed two nights, during which the child slept with him in his tent.

The mother testified that she desired to work for the United States Forestry Service and that she had applied in several western states, including Colorado and Washington, for a position as a forestry-service technician. She was hired as a forestry-service technician in Wenatchee, Washington, where she worked from May 31, 2015, through October 31, 2015. During those months, the mother left the child in Alabama in the care of W.M. ("the maternal grandmother") because, the mother testified, she did not have sufficient funds to pay for child care in Washington at that time. The mother contacted the child every day while she was in Washington.

The mother explained that, in order to become a permanent employee of the forestry service, one had to complete three years as a seasonal employee. As of the time of the May 2016 trial, she had been rehired for the same position for the May to October 2016 season, expected to earn between $12 and $13 per hour, and expected to work between 50 and 60 hours per week. The mother further testified that she intended to take the child with her to Washington in 2016. The mother testified that she had rented a three-bedroom, two-bathroom home in which she and the child would reside. She said that the child support the father would be paying under the pendente lite agreement the parties had reached would enable her to hire a college-age nanny, who would reside with her and the child in Washington.

The mother admitted that, at the time of her deposition, which had been taken in March 2016, she had intended, if she were rehired for the position in Washington, to leave the child with her mother and to return to Alabama after her seasonal employment ended. She said, however, that the increased child support enabled her to secure child care and led to her decision to take the child with her. She also explained that her ability to take the child with her to Washington impacted her plans after her seasonal employment ended.

Regarding her future plans, the mother testified that she expected that she would be rehired for her third seasonal-employment season in 2017 and that she would then qualify for a permanent position. She also explained that she hoped to be able to stay in Washington after completing the 2016 season. She explained:

"I've got the option to live up there year round. I have the option to work at the supervisor's office at the end of my time in the field. I have the option to spend time with [the child] during those months. But right now I can't make a decision because I don't know what in the end [the father] is going to be helping with or anything like that."

When asked about the opportunities for the child in Wenatchee, the mother explained that Wenatchee was located on the Columbia River and said that it was a leading producer of apples. She said that the area had a cultural arts center and apple festivals in which the child could participate. In addition, she noted that water sports were available on the river and that snowboarding and skiing were available at a local resort.

The father testified that he is a pharmacist. He said that he had worked as a pharmacist in Alaska and that he was, at the time of trial, employed as a pharmacist in a hospital pharmacy in Steamboat Springs, Colorado. He explained that his hours were 10:00 a.m. to 6:00 p.m. each weekday, that he worked 40 hours a week, and that he earned $52 per hour. He testified that the hospital had a day-care facility for the child to attend but that it closed at 5:30 p.m. According to the father, his supervisor had assured him that he could bring the child to the hospital pharmacy during the last 30 minutes of his shift, where the father intended to "put [him] in the back with a coloring book."

The father further testified that he lived in a one-bedroom, garage apartment "along a back alley (inaudible) that's tucked in downtown Steamboat." He said that he had a trundle bed on which the child could sleep. He also stated that the child could sleep anywhere he wanted, including in the main bed.

The father testified that the child would have access to skiing and other outdoor activities in Steamboat Springs. He also noted that the school in the area was a "school of distinction." The father testified that he usually rode his bike to work but that he also had access to public transportation.

The maternal grandmother testified that the child had remained in her care while the mother worked in Washington between May 31 and October 31, 2015. She said that the mother and the child had had contact of some sort every day. She described the child as independent and noted that he had a large vocabulary. She commented that he loves participating in outdoor activities with the mother, including swimming, hiking, and camping.

The juvenile-court judge questioned the mother extensively during her testimony. The judge quizzed her about whether the four-month trip was of benefit to the child, whether driving across the country with a toddler was dangerous, and whether the child would remember the trip. The juvenile-court judge indicated that he found the mother's decision to make the trip with the child indicative of a lack of stability:

"THE COURT: Listen, and that's why I'm trying to draw a thin line here because I don't think it's the Court's province to step in morality [ (sic) ] and being that you want to raise your child as a granola child, that's your right. But stability is important to children."

The juvenile-court judge then questioned the mother about why she did not want the father to be given custody of the child:

"THE COURT: What have you seen [the father] do to make you believe that he would ever hurt or neglect that child?
"THE MOTHER: It is not that I feel like [the father] is going to do anything bad to the child as far as-
"THE COURT: I said hurt or neglect. Neglect is bad. And neglect is not paying attention.
"THE WITNESS: Then-
"THE COURT: (Inaudible) those two words have got to cover something that's a (inaudible).
"THE MOTHER: Then if neglect includes not paying attention I just personally and I can-I'll give examples.
"THE COURT: Are you saying he stays out until 4:00 in the morning getting drunk, does he do a bunch of drugs or is he hanging out at raves, what are you saying?
"THE MOTHER: So from [the father's] behavior in the past. I do know that he smokes marijuana or has in the past. I also know-
"THE COURT: Has he ever smoked marijuana in front of [the child]?
"THE MOTHER: Not to my knowledge. I don't-I haven't seen them together enough to know if that happens or not.
"THE COURT: Have you ever smoked marijuana?
"THE MOTHER: No."

The juvenile-court judge then began examining the mother about whether smoking marijuana makes a parent unfit.

"THE COURT: I asked you what concerns-have you ever seen him do anything that leads you to believe that he would hurt, neglect, do anything to harm the child, whether it's intentional or by accident?
"THE MOTHER: Right. And-
"THE COURT: And because you've seen him smoke marijuana before, not around the child, you believe he's going to neglect the child?
"THE MOTHER: Where I was going with that is I don't know if he smokes anymore or if he would smoke in front of [the child]. I just know that when people smoke [marijuana] they cannot be as observant and if he's going to be taking care of [the child] solely by himself and he decides to indulge in that habit, then who is going to be the other person-
"THE COURT: And my question is: What knowledge do you have that that's going to happen? When's the last time you saw him smoke marijuana?
"THE MOTHER: It was when I was in Alaska, it was years ago. And that's why I acknowledge the fact that I don't know if he does it anymore but it's something that I've seen him do prior that I don't know the answer to that I would like to be answered."

The juvenile court entered an order on July 12, 2016, in which it decided the paternity issue in accordance with the parties' stipulation of paternity, awarded physical custody of the child to the father, and ordered the mother to pay child support. The order stated, in pertinent part, as follows:

"2. The [father] is currently a resident of Steamboat Springs, Colorado[,] and has been since October 30, 2015[,] where he is employed as a Pharmacist. The [father] testified that he had every intention to remain where he is currently residing.
"3. The [mother] testified at the hearing that it was her intention to move to the State of Washington and seek employment with the National Park Service. She testified that this is not permanent employment and is, in fact, seasonal. She expected this employment to be available from May 2016 through October of 2016. She further testified that there are circumstances that might cause her to not obtain the full time employment which she seeks and that circumstances may require her to relocate.
"4. The Court finds that both parents obviously love the child; however, the Court believes that the child would benefit by being placed in the primary custody of the parent who could provide the most stability for the child. The [father] has been employed as a Pharmacist at his current location since October of 2015 and has testified that he has no intentions to change his residence or employment. On the other hand, the Court finds from the testimony that the [mother's] present and future employment as well as her residential status is much more uncertain."

The mother filed a motion seeking reconsideration of the custody award on July 21, 2016. Because the parties considered the mother's motion to be a postjudgment motion, and because the juvenile court had not yet ruled on the mother's motion on August 1, 2016, the parties entered into a joint stipulation to extend the time for the juvenile court to rule on the motion to August 18, 2016. See Rule 1(b)(2), Ala. R. Juv. P. (providing that parties can expressly consent on the record to an extension of the 14-day period to rule on a postjudgment motion). After a hearing on the motion, the juvenile court failed to rule on the motion, and the parties considered it deemed denied by operation of law. Rule 1(B), Ala. R. Juv. P.; see also Rule 59.1, Ala. R. Civ. P. The mother appealed. However, because the juvenile court had not ruled on the mother's request for retroactive child support, which had been litigated at trial, the July 12, 2016, order was not a final judgment, and this court therefore dismissed the mother's appeal. See, S.A.M. v. M.H.W., 227 So.3d 1232 (Ala. Civ. App. 2017).

Subsequently, the juvenile court entered a judgment on April 25, 2017, declining to award retroactive child support to the mother and otherwise reaffirming the July 12, 2016, order regarding custody. The mother filed a postjudgment motion directed to the April 2017 judgment. Although the juvenile court held a hearing on the mother's motion, and although the parties expressly consented to the extension of the 14-day period to rule on the motion for an additional 14 days, see Rule 1(b)(2), the juvenile court failed to rule on the motion within 28 days of its filing, and the mother's motion was therefore deemed to have been denied by operation of law. See Rule 1(B). The mother timely appealed.

On appeal, the mother presents the following issues: (1) whether the juvenile court erred by failing to apply the factors set out in Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981), and its progeny when determining custody, (2) whether the juvenile court erred in considering extrajudicial facts in determining custody, (3) whether the juvenile court erred by failing to include the CS-42 child-support-guideline form in the record, and (4) whether the juvenile court erred by failing to award retroactive child support.

We will first consider the mother's argument that the juvenile court impermissibly considered extrajudicial facts when making its custody determination. At trial, the mother, who, as noted above, was a seasonal employee of the forestry service, testified that she had concerns about the father's being attentive to the child if he were awarded custody because, she said, she knew the father had smoked marijuana in the past. During her testimony, the juvenile-court judge interjected several times to comment on what he viewed as the proclivity of "outdoor people," those employed in the forestry service, and residents of, or visitors to, the State of Washington to smoke marijuana. The juvenile-court judge specifically commented that he had been hiking in Washington and that "those type of people smoke marijuana" and that "acting like they don't is not being honest with the court." He asked the mother how she intended to protect her child from those in Washington who smoked marijuana and stated that the mother's concern over the father's past use of marijuana did not "make much sense" based on the mother's "choosing to place her child around a bunch of people who smoke marijuana," presumably by moving to Washington and working for the forestry service.

The mother relies on two rules of evidence as bases for her challenge to the juvenile-court judge's statements. She first contends that the juvenile-court judge acted as a witness in the proceeding in contravention of Rule 605, Ala. R. Evid., which provides that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Secondly, she contends that the juvenile court impermissibly took judicial notice of adjudicative facts in contravention of Rule 201, Ala. R. Evid.

We have found no Alabama caselaw interpreting Rule 605. However, our research has revealed that Rule 605 and Rule 201 are often considered together when a trial judge makes comments at trial regarding facts within his or her personal knowledge. We find instructive the discussion of Rule 605 contained in I Charles W. Gamble & Robert J. Goodwin, McElroy's Alabama Evidence § 94.05(1) (6th ed. 2009) (footnotes omitted):

"Obviously the trial court has broad power to question witnesses and to comment upon the evidence. Additionally, the court may take judicial notice of certain facts.... However, when the judge otherwise begins by comment to interject material and extrajudicial facts within the judge's own knowledge, and not properly noticed or judicially acquired, the judge may then be held to have become a witness in violation of Rule 605."

One of the federal cases cited in McElroy's- United States v. Paiva, 892 F.2d 148 (1st Cir. 1989) -contains a discussion helpful to an understanding of the prohibition contained in Rule 605, Fed. R. Evid.

"The prohibition of Rule 605 anticipates situations where the presiding judge is called to testify as a witness in the trial-'where the judge abandons the bench for the witness stand.' Fed. R. Evid. 605 advisory committee's note. See Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980) ; United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978) ; Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593, 597 (5th Cir. 1977) ; Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1301 (8th Cir. 1982), aff'd 716 F.2d 485 (8th Cir. 1983) (en banc).
"We believe that Paiva's argument that the judge's explanation of a field test [on a white powder to determine whether the substance was cocaine] was impermissible is more properly addressed under federal caselaw governing a district court judge's power of comment and the inherent limitations on this power. See, e.g., Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) ; Doherty v. Doherty Insurance Agency, 878 F.2d 546 (1st Cir. 1989) ; Aggarwal v. Ponce School of Medicine, 837 F.2d 17 (1st Cir. 1988) ; United States v. Love, 767 F.2d 1052 (4th Cir. 1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986). A federal district court judge retains the common law power to explain, summarize and comment on the facts and evidence.
Quercia, 289 U.S. at 469-70, 53 S.Ct. at 698-99 ; Doherty, 878 F.2d at 553 ; Aggarwal, 837 F.2d at 22 ; Wright & Miller, Federal Practice and Procedure § 2557 (West 1971). A district court judge also has the power to question witnesses. Fed. R. Evid. 614. See also Terrell v. United States, 6 F.2d 498, 499 (4th Cir. 1925). In commenting on the testimony or questioning witnesses, however, the judge may not assume the role of a witness. Quercia, 289 U.S. at 470, 53 S.Ct. at 699 ; Tyler v. Swenson, 427 F.2d 412, 416 (8th Cir. 1970) ; Terrell, 6 F.2d at 499. A judge may 'analyze and dissect the evidence, but he may not either distort it or add to it.' Quercia, 289 U.S. at 470, 53 S.Ct. at 699. If a judge exceeds the limitations on his power to comment and to question, such action may constitute prejudicial error and require reversal. See id. at 472, 53 S.Ct. at 700 ; Tyler, 427 F.2d at 417 ; Terrell, 6 F.2d at 500."

Paiva, 892 F.2d at 158-59.

The United States Court of Appeals for the Ninth Circuit explained in United States v. Lewis, 833 F.2d 1380 (9th Cir. 1987), that a trial judge may not base his or her findings on his or her personal experiences because doing so violates both Rule 605, Fed. R. Evid., and Rule 201, Fed. R. Evid. The defendant in Lewis had challenged the voluntariness of her confessions, which were given after she had awoken after surgery and on the day following the surgery. Lewis, 833 F.2d at 1382-83. The trial judge remarked upon his experience after awakening from a general anesthetic:

" '...I am frank to say, I am influenced by personal experience. I mean, I represent to you that I have never been a heroin addict and I have never experienced what it is like to come out from under heroin, but I have come out from under an anesthetic. And people have told me that-and I seem to be perfectly all right-and people have told me that I said the most incredible things during the few first six hours or so after I came out of a general anesthetic. And I have had the same experience related by other people.
" 'You are not accountable for what you do or say for quite a number of hours after you come out of a general anesthetic. So I cannot find that a person who is both withdrawing from heroin and coming out from under a general anesthetic and is under arrest and confronted by FBI agents is in a position to make a voluntary and knowing statement at that time.' "

Lewis, 833 F.2d at 1384. The trial judge ruled that the defendant's confession had not been voluntary. Id. at 1383.

After first commenting that the trial judge had "candidly acknowledged that his determination of the issue ... was 'influenced by his personal experience,' " the Lewis court noted that, under Rule 605, Fed. R. Evid., "[t]he trial judge in this matter was not a competent witness" about the facts and circumstances surrounding the defendant's confession; the Lewis court specifically observed that "[t]here is no evidence in the record that a person is not accountable for what he or she says for several hours after receiving a general anesthetic." Lewis, 833 F.2d at 1385. The Lewis court went on to explain that a trial judge may not "rel[y] on his [or her] personal experience" to inform himself or herself of facts in order to take judicial notice of those facts:

"A trial judge is prohibited from relying on his personal experience to support the taking of judicial notice. 'It is therefore plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of court.' "

Id. (quoting 9 J. Wigmore, Evidence in Trials at Common Law § 2569, at 723 (J. Chadbourn rev. ed. 1981)).

As the United States Court of Appeals for the Ninth Circuit has more recently stated, a "judge may not actually testify in [a] proceeding or interject facts (excluding facts for which proper judicial notice is taken)." United States v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th Cir. 2007). In addition, the federal courts have stated that "[a] judge should never testify in the form of questions." Tyler v. Swenson, 427 F.2d 412, 416 (8th Cir. 1970). One reason for this prohibition is the prevention of the appearance of bias. See O'Quinn v. Hall, 77 S.W.3d 438, 448 (Tex. App. 2002) (applying Rule 605 of the Texas Rules of Evidence, which is similar to our Rule 605, and concluding that "[t]he trial court's determination of the date of notice was based on facts provided to the court by its staff, facts that the court provided at the hearing. This created the appearance of bias which rule 605 seeks to prevent."). In addition, allowing a trial judge to testify impinges on the right of cross-examination. Tyler, 427 F.2d at 416 ("This evidence came from the lips of the trial judge in questioning the mother and serves as testimony without the right of cross-examination by the petitioner.").

We have also found instructive the Tennessee Supreme Court's application of Rule 605 of the Tennessee Rules of Evidence, which is similar to our Rule 605. See Vaughn v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132, 133-34 (Tenn. 1991). The Tennessee Supreme Court, in a case involving a judge who had personally observed a workers' compensation plaintiff on occasion outside the courtroom, explained the prohibitions on a trial judge's use of extrajudicial facts thusly:

"Judicial knowledge upon which a decision may be based is not the personal knowledge of the judge, but the cognizance of certain facts the judge becomes aware of by virtue of the legal procedures in which he plays a neutral role. State v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 188 (1968). No judge is at liberty to take into account personal knowledge which he possesses when deciding upon an issue submitted by the parties. Laurance v. Laurance, 198 Or. 630, 258 P.2d 784, 787 (1953). In other words, '[i]t matters not what is known to the judge personally if it is not known to him in his official capacity.' Galbreath v. Nolan, 58 Tenn.App. 260, 429 S.W.2d 447, 450 (1967).
"Significantly, a judge is not permitted to make an investigation of a case, even an inadvertent one, off of the record, and then base a holding on the information obtained incident thereto. See State v. Suttles, 767 S.W.2d 403, 407 (Tenn. 1989) ; Caldwell v. State, 164 Tenn. 325, 48 S.W.2d 1087, 1097 (1932) ; see also Moore v. Russell, 294 F.Supp. 615, 620-21 (E.D. Tenn. 1968) ('Whatever may have been the personal observations and individual views of the judge as a person, these factors have no place whatever in his exercise of judicial discretion.'). Moreover, when a judge becomes a source of evidence, appellate courts are put in an awkward position in that the character of the evidence obtained through private inquiry or observation, as well as its probative value, is not shown in the record, making an evaluation of the information on appeal difficult, if not impossible.
"Other than difficulties associated with appellate review, actions such as those taken by the trial judge in the present case create problems for the parties which can and should be avoided.
Simply stated, by observing a party outside of the judicial proceedings, and then basing a decision on those observations, the judge becomes a source of evidence, in effect, a witness. Rule 605 of the Tennessee Rules of Evidence clearly prohibits a judge presiding over a trial from serving as a witness, and for good reason. Perhaps the most obvious one is that the system of justice does not appear to be impartial if the judge charged with the duty of adjudicating the litigation also acts as a source of evidence. See generally, Cohen, Tennessee Law of Evidence, § 605.1 at 247 (2d ed. 1990). Additionally, when the trial judge becomes a source of information, the parties may not be willing to cross-examine vigorously the judge whose goodwill is perceived to be important to the outcome of the case. Worse yet, the parties may not even get the opportunity to cross-examine the judge to begin with. The present case is a prime example. It seems appropriate that when the trial judge becomes a source of information, and when a decision is ultimately influenced by that information, the parties should have the opportunity to cross-examine in order to impeach the source of the evidence or otherwise persuade an impartial trier of fact that the court's observations are, for whatever reason, inaccurate, just as they would any other witness."

Vaughn, 813 S.W.2d at 133-34 (footnotes omitted; emphasis on "source" original, other emphasis added). Because the trial judge had considered his extrajudicial observations in making his decision, the Tennessee Supreme Court reversed the judgment and remanded the cause for a new trial with a different trial judge. Id. at 134.

Furthermore, contrary to the father's suggestion in his brief to this court, neither the juvenile court nor this court can take judicial notice of "Washington's statutes ... or countless[, but unspecified,] reputable and reliable news media sources" to support a conclusion that recreational use of marijuana is legal in the State of Washington (and, therefore, presumably that those who participate in outdoor activities in that state or are employed by the forestry service in that state engage in said recreational use of marijuana).See Ex parte Ebbers, 871 So.2d 776, 794 (Ala. 2003) ("[W]e know of no legitimate basis for taking 'judicial notice' of copies of news articles."); Gavin v. State, 891 So.2d 907, 987 (Ala. Crim. App. 2003) (same); Hammack v. Moxcey, 220 So.3d 1053, 1059 (Ala. Civ. App. 2016) (quoting Whitworth v. Dodd, 435 So.2d 1305, 1307 (Ala. Civ. App. 1983) ) (" 'The courts of Alabama do not take judicial notice of the law of a sister state, whether statutory or otherwise.' "); and Johnson v. Johnson, 469 So.2d 116, 118 (Ala. Civ. App. 1985) (explaining that an Alabama court "cannot take judicial knowledge of the laws of a sister state"). The "facts" regarding the use of marijuana by forestry-service employees, outdoor enthusiasts, and those living in, or pursuing recreational activities in, Washington are not facts of which a trial court may take judicial notice because they do not meet the requirements for judicially noticed facts set out in Rule 201(b), Ala. R. Evid.: "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

The comments by the juvenile-court judge regarding the common knowledge of the use of marijuana by outdoor enthusiasts, those employed by the forestry service, and those living in, or pursuing recreation in, the State of Washington contained, much like the comments regarding the effect of general anesthesia by the trial-court judge in Lewis, extrajudicial facts that the juvenile-court judge has gleaned from his own personal knowledge or beliefs. The juvenile-court judge was not commenting on the evidence presented. Instead, he was reporting his own personal observations regarding marijuana use by certain groups of persons or those in a certain locale. The parties, and particularly the mother, were, like the defendant in Vaughn, unable to cross-examine the juvenile-court judge about his testimony concerning marijuana use in Washington or among forestry-service employees and outdoor enthusiasts. Moreover, the mother was not permitted the opportunity to persuade an impartial fact-finder that, in fact, the mother was not moving to Washington to live among marijuana-smoking outdoor enthusiasts and forestry-service employees or that she was not being dishonest to the court about the proclivities of those groups of persons to smoke marijuana. Thus, we conclude that the comments made by the juvenile-court judge were improper and violated both Rule 605 and Rule 201.

However, our inquiry does not end there. The mother contends that the juvenile-court judge's comments contained extrajudicial facts that formed the basis for the juvenile court's adjudication. The father, to the contrary, contends that the juvenile court did not rely on the comments as establishing adjudicatory facts but instead used those comments to assess the mother's credibility regarding her stated concerns over the father's relative fitness to be the child's custodial parent. Indeed, the juvenile-court judge stated on the record at the hearing on the mother's July 21, 2016, motion to reconsider the July 12, 2016, custody order that his intent was to demonstrate that the mother's concerns over the father's alleged use of marijuana were illogical or hypocritical.

"THE COURT: I was offended by the fact that she was so offended that her child would be around someone who-the only testimony was that he had smoked marijuana. I mean that, in and of itself, to me, does not make somebody an unfit parent. There's no other testimony as to the circumstances under which [he] smoked marijuana, how often [he] smoked marijuana, any facts whatsoever in regards to drug uses other than the fact that [he] smoked marijuana. And my point in what I was saying was you're so worried about him being around your child when you can say he has smoked marijuana in his lifetime that the people-people in Alabama, you cannot grow up and not be around people who've smoked marijuana at one point in their life. And to be offended or worried about your children being around those people in their presence without knowing more other than them smoking marijuana one time is an overreaction. That was the point I was making.
"....
"THE COURT: I didn't consider any of that, ma'am. I've already told you that what I discussed with her was not considering any information. It was saying that it's common knowledge-it was in response to making such a big deal over the marijuana when you put no context in the testimony. Being someone testing positive for marijuana or someone saying they used marijuana and the Court not knowing the facts which surround that usage does not put the Court on a very good basis to start considering that in regards to custody."

Thus, we must determine whether the extrajudicial remarks formed a crucial basis of the juvenile court's decision or whether those remarks, which are "neither to be encouraged nor commended," see Ex parte Adams, 211 So.3d 780, 791 (Ala. 2016), amount to merely harmless error. See Rule 45, Ala. R. App. P. (explaining that an appellate court may not reverse a judgment unless "the error complained of has probably injuriously affected substantial rights of the parties"); Paiva, 892 F.2d at 159 (applying the harmless-error rule to a Rule 605 violation). The juvenile-court judge stated on the record that he had not based the custody determination on the marijuana issue. However, the juvenile-court judge indicated that he had attempted to communicate to the mother that her concern over the father's past use of marijuana was an "overreaction," indicating that the juvenile-court judge had used the extrajudicial "facts" about the use of marijuana to determine that the mother was unduly and irrationally concerned about the child's potential exposure to marijuana through the father (despite the fact that she had clearly indicated that she was not certain whether the father continued to smoke marijuana and had simply mentioned that she would be concerned about his ability to parent if he still used marijuana and did so while the child was in his custody) as opposed to those persons with whom the mother might have contact in Washington.

The frequency and tenor of the juvenile-court judge's remarks make it difficult to conclude that the juvenile-court judge did not draw negative conclusions about the mother based on what he stated that he perceived to be the mother's "overreaction." In fact, as already mentioned, the juvenile-court judge indicated that the mother was "not being honest with the Court" based on her failure to admit that "those type of people smoke marijuana." Despite his assertion that he had not focused on the marijuana issue, the juvenile-court judge, on the record, accused the mother of "choosing to place her child around a bunch of people who smoke marijuana."

We cannot conclude that the juvenile-court judge's remarks, which accuse the mother of dishonesty and of behavior that might endanger the welfare of the child based on the juvenile-court judge's personal observations or beliefs about the proclivity of outdoor enthusiasts, forestry-service employees, and the residents of, or visitors to, Washington to use marijuana, amount to harmless error in this context, where the suitability of a parent for the custody of a child turns on, in part, that parent's character. See Ex parte Devine, 398 So.2d at 696 (including as a factor relevant to child-custody determinations "the characteristics of those seeking custody, including age, character, stability, mental and physical health"). Accordingly, in light of the juvenile-court judge's violation of Rule 605 and Rule 201, we reverse the judgment of the juvenile court, and we remand this cause for a new trial before a different judge. See Vaughn, 813 S.W.2d at 134. In light of our resolution of the appeal on this issue, we pretermit the mother's other arguments. Frazier v. Curry, 119 So.3d 1195, 1197 (Ala. Civ. App. 2013) (citing Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005) ) (explaining that appellate courts will pretermit other arguments on appeal when one argument is determinative of the appeal).

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The father testified that he had earned $85 per hour when he worked in Alaska.

      Rule 605, Fed. R. Evid., and Rule 201, Fed. R. Evid., are substantially similar to our corresponding rules. Thus, federal caselaw interpreting those federal rules is persuasive authority. See, e.g., Burgin v. State, 747 So.2d 916, 918 (Ala. Crim. App. 1999) (noting that, "[b]ecause there is little Alabama caselaw interpreting Rule 607, [Ala. R. Evid.,] we must look to the federal courts' interpretation of Rule 607 of the Federal Rules of Evidence, which is identical to the Alabama rule.").