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    SVERDRUP TECHNOLOGY, INC. v. Ronnie ROBINSON d/b/a ADR Technical Services.
    1071113.
    Supreme Court of Alabama.
    Oct. 23, 2009.

      Marion F. Walker of Ford & Harrison LLP, Birmingham, for appellant.
    Brian M. Clark of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellee.
   On Application for Rehearing

LYONS, Justice.

On August 14, 2009, this Court affirmed, without an opinion, a judgment entered on a jury verdict awarding compensatory damages to Ronnie Robinson d/b/a ADR Technical Services (“Robinson”) in the amount of $78,000 on Robinson’s claim of intentional misrepresentation against Sverdrup Technology, Inc. (“Sverdrup”). In the brief supporting its application for a rehearing, Sverdrup urges this Court to “provide a thoughtful opinion that addresses the serious issues” raised on appeal and in the application. We withdraw our no-opinion affirmance and substitute the following opinion therefor.

Procedural History and Factual Background

On February 12, 2004, Robinson sued Sverdrup in the Madison Circuit Court. The complaint alleged that Robinson had been acting as Sverdrup’s subcontractor with respect to a United States Air Force project in Tennessee. Under Tennessee substantive law, Robinson asserted claims of breach of contract and fraud arising from events that occurred with respect to Sverdrup’s efforts, through a joint venture, to obtain a new general contract for the project. Although the events at issue occurred in Tennessee, the complaint alleged that “Sverdrup ... is a corporation doing business in the State of Alabama, and maintains corporate offices in Huntsville, Alabama.” In its answer to the complaint, Sverdrup admitted that “it is a corporation doing business in the State of Alabama.” Sverdrup did not assert lack of personal jurisdiction as a defense in its answer or raise the defense in a motion to dismiss pursuant to Rule 12(b), Ala. R. Civ. P. Sverdrup did maintain that Robinson had failed “to plead fraud with specificity.”

Robinson amended his complaint on July 13, 2005, to name additional defendants. In its answer to the amended complaint, Sverdrup admitted Robinson’s allegation that it maintains corporate offices in Huntsville; Sverdrup again did not assert lack of personal jurisdiction as a defense. Robinson amended his complaint again on September 6, 2005. For the first time in its response to the second amended complaint, Sverdrup moved to dismiss the action for lack of personal jurisdiction.

In its motion to dismiss, Sverdrup argued that the trial court lacked personal jurisdiction over it because, it said, its business in Alabama did not relate to the events giving rise to the complaint. Sverdrup also argued that Robinson’s fraud claims were due to be dismissed because, it said, Robinson did not allege fraud with particularity. The trial court denied Sverdrup’s motion on January 26, 2006, finding that Sverdrup had “regular and systematic contacts with the State of Alabama subjecting it to jurisdiction” and that Robinson had sufficiently pleaded his fraud claims.

Robinson subsequently amended his complaint three more times, ultimately asserting claims against Sverdrup and three other defendants. The other defendants were eventually dismissed, and the claims against Sverdrup were tried to a jury beginning on August 20, 2007. Sverdrup moved for a judgment as a matter of law on several grounds at the close of Robinson’s case-in-chief and again at the close of all evidence. The trial court denied those motions and submitted the case to the jury on Robinson’s claims of breach of contract, promissory fraud, and intentional misrepresentation. On August 28, 2007, the jury returned a verdict for Sverdrup on the breach-of-contract and promissory-fraud claims and for Robinson on the claim of intentional misrepresentation. The jury awarded Robinson $78,000 in compensatory damages. The trial court entered a judgment on the verdict on September 4, 2007. Sverdrup renewed its motion for a judgment as a matter of law on October 1, 2007. The trial court denied that motion, and Sverdrup appealed.

The evidence submitted at trial showed the following facts relevant to this appeal. Under a general contract known as “Effort T,” Sverdrup performed test operations at the United States Air Force Arnold Engineering Development Center (“AEDC”) in Tullahoma, Tennessee, between 1995 and 2003. Pursuant to federal regulations governing government contractors, Sverdrup was required to conduct periodic inventory of the government property in its possession. To satisfy this requirement, Sverdr-up subcontracted with Robinson.

Under the subcontract, Robinson worked full-time at the AEDC performing inventory of the more than 70,000 government items in Sverdrup’s possession. Robinson reported to and coordinated with individuals in Sverdrup’s property-management section. Under the Effort T contract, before the end of each fiscal year, Robinson submitted a cost proposal to Sverdrup relative to his activities for the following year. Sverdrup then submitted the cost proposal to the Air Force, and the Air Force approved funding for Robinson’s subcontract. Robinson did not perform work for any entities other than Sverdrup.

The Effort T contract was to expire on September 30, 2003. In August or September 2002, the Air Force released a draft request for proposal (“RFP”) seeking a general contractor to perform testing operations and administrative and support services at the AEDC beginning on October 1, 2008. The Air Force released a final RFP in December 2002. Proposals were to be submitted in February 2003 and a general contract awarded on June 80, 2003.

Sverdrup planned to submit a proposal to the Air Force in response to the RFP as part of a joint venture known as Aerospace Testing Alliance. Instead of merely performing test operations as it had under prior contracts, Sverdrup — with the other entities in the joint venture' — also proposed to perform administrative and support services at the AEDC. Sverdrup began work on the proposal in early 2002. In the summer of 2002, Sverdrup decided to use different inventory methods than had been used under the Effort T contract and to eliminate Robinson as a subcontractor, thereby reducing property-management costs. Sverdrup incorporated this decision into the proposal as “Initiative 13.” Kenny Frame, who was Sverdrup’s senior vice president and director of business development from 2001 to 2006, stated that, because of the competitive nature of the proposal process, information regarding Initiative 13 and the other initiatives included in the proposal was “highly secret” and “tightly, tightly controlled.” Frame testified that even some individuals on the team developing the proposal were not aware of the content of the initiatives.

Robinson testified that he knew in 2002 that the Effort T contract was to expire and that he would need to obtain a subcontract under the new proposal being prepared by Sverdrup or that he would no longer be involved with work at the AEDC. According to Robinson, the following events occurred before Sverdrup submitted its proposal to the Air Force in response to the RFP. In the summer of 2002, Robinson contacted Mark Kelly, Sverdrup’s administrator of subcontracts under the Effort T contract. At Kelly’s instruction, Robinson contacted Frame in August 2002. Frame told Robinson that he had to “get approval” before Robinson could “be on the contract.” According to Robinson, he and Frame spoke again in early 2003, and Frame “told [Robinson] that he had got approval and that [Robinson] needed to get in contact with Tom Mahler,” Sverdrup’s director of business operations. When Robinson did so, Frame had already contacted Mahler, and Mahler was preparing a “teaming agreement.”

Robinson signed the teaming agreement on February 4, 2003. It stated:

“[l.]a. The purpose of this Teaming Agreement is to enter into a joint effort to submit a proposal to the [Ah' Force] in the interest of obtaining the prime contract to be awarded for the Program.
“d. [Sverdrup] will be proposed as the Prime Contractor and ADR Technical Services will be proposed as the subcontractor for performing the work specified in Exhibit ‘A’ hereof, ‘Description of Subcontract Work.’ ”

Exhibit A of the teaming agreement provided: “It is anticipated that ADR [Technical Services] will provide support in the areas of property and inventory management and/or other areas as mutually agreed to by [Sverdrup] and [ADR Technical Services].” Robinson testified that he understood that he was to perform the same inventory services for Sverdrup that he had performed under the Effort T contract.

According to Frame, he did not have any contact with Robinson until December 2002 or January 2003. At that time, Frame knew that Sverdrup had already decided to use Initiative 13 in the proposal and that it did not plan to use Robinson as a subcontractor. Frame testified regarding his conversation with Robinson:

“I chose my words carefully. I didn’t want to disclose what we were going to do. It would be disclosing a competitive advantage. If he chose not to go with us, he could go to a competitor and compromise our position. So I said, ‘We have chosen to take an internal approach.’ ”

According to Frame, he then told Robinson: “However, I would like you to talk to Tom Mahler about signing — about a teaming agreement in which we could utilize you for property management services in general and potentially other things your company can offer.” Frame testified that he intended to have an “indefinite delivery” arrangement with Robinson, in which there were no guarantees that Sverdrup would use Robinson as a subcontractor. The trial court questioned Frame:

“Trial Court: Did you use the terms in working or talking to him about indefinite delivery?
“Frame: I did not.
“Trial Court: Okay. And tell me again what you told him to talk about with Tom Mahler.
“Frame: To talk about getting a teaming agreement to the effect that that would allow him to have the opportunity to do work in property management or other areas of the contract....”

Robinson denied that Frame told him that Sverdrup was going to internalize inventory management. He also stated that before he signed the teaming agreement, no one talked with him about providing services other than the physical inventory he had been doing.

Mahler was unaware of Initiative 13. He testified that Frame merely advised him to contact Kelly regarding Robinson. Mahler explained that when Kelly advised him that Robinson had performed well: “I thought that we would proceed to get together a teaming agreement with [Robinson] to continue performance as a subcontractor. I thought ... that we would carry them on into the new contract.” Mahler testified that he intended Robinson to perform property-management functions under the proposal but that the teaming agreement did not necessarily mean that he would have a subcontract.

Ten days after Robinson signed the teaming agreement, Sverdrup’s joint venture — Aerospace Testing Alliance — submitted the proposal to the Air Force. Aerospace Testing Alliance did not propose to use Robinson as a subcontractor. Instead, the proposal included Initiative 13, which expressly provided for “elimination of the auditing subcontractor,” i.e., Robinson. The Air Force received proposals from two other competitors in response to its RFP. On June 30, 2003, the Air Force awarded the new contract to Aerospace Testing Alliance.

Robinson testified that in July 2003 Mahler contacted him and stated that he was “a part of the team”; that he would be required to submit a cost proposal for a subcontract; and that any applications for employment that Robinson or his employees may have submitted to the joint venture should be withdrawn because they were not needed. Robinson testified that he advised his employees that they would continue their employment when the new general contract took effect. Robinson further testified that he was subsequently asked to submit a cost proposal using the same format and information he had used under the Effort T contract. Mahler denied speaking with Robinson in July 2003, but on September 8, 2003, Mahler’s department submitted a proposed subcontract to the Air Force based on Robinson’s cost proposal. The Air Force rejected Robinson’s proposed subcontract on September 9, 2003, because it conflicted with Initiative 13. An Air Force representative testified that Robinson’s proposed subcontract “would have been fine” if it had been included in the general contractor’s proposal.

Robinson testified that Sverdrup notified him on September 18, 2003, that the Air Force had rejected his subcontract. Robinson testified:

“Pretty much I was just overwhelmed. I couldn’t even understand what had happened because I didn’t even see this coming as far as it was nothing that I could even see this would even happen and I knew that the only way this was denied was something wasn’t done properly.
“... At that point, I immediately went back to my office and called my employees. Because I had already informed them three months earlier that they pretty much had a job, and I wanted to make sure they knew that they didn’t have a job.”

Robinson testified that he telephoned and wrote Sverdrup officials to find out why his subcontract had been rejected but that he never received an explanation.

Robinson fulfilled the terms of his subcontract under the Effort T contract and continued working at the AEDC until September 30, 2003. When Robinson’s subcontract ended, Sverdrup paid him $34,000 in severance pay. Robinson testified that the severance pay was for sick leave, vacation, and service pay, and that he divided it among himself and his two employees.

At Sverdrup’s instruction, Robinson applied for employment with the joint venture in late September 2003. Robinson testified that he received no response to the application. He testified that, had he known earlier that Sverdrup did not plan to use him as a subcontractor, he would have applied sooner for another form of employment at the AEDC. Sverdrup maintained that Robinson would not have been hired even if he had applied earlier because the joint venture hired only former employees of Sverdrup and other members of the joint venture. Robinson also testified that if he had known in February that Sverdrup was not going to use him as a subcontractor, he would have begun looking elsewhere for employment.

Robinson testified that he lost the revenue he would have made on a subcontract had Sverdrup included him in the proposal. At trial, Robinson submitted his tax returns from 1998 through 2003; based on the returns, he testified that during those years the annual profit of his business varied from its lowest at $63,000 in 1999 to its highest at $123,000 in 2002. Robinson also submitted the cost proposal he gave Sverdrup in August 2003 and the proposed subcontract Sverdrup submitted to the Air Force. Sverdrup noted that Robinson had underpaid his personal federal taxes in certain years, but Robinson denied that the underpayment related to his calculations regarding the profits of his business.

Robinson testified that, when he learned that his subcontract had not been approved in September 2003, he immediately began looking for work elsewhere. In addition to his application for employment with the joint venture, he made inquiries of and submitted resumes to potential employers through the Internet and personal contacts. He stated that he was willing to do whatever work he could find. Robinson eventually found temporary work in December 2004. His 2004 tax return showed that his income for that year was $1,970. He testified that, until he secured temporary work, he searched full-time for a job and that, when he was performing temporary work, he continued searching three to four hours each day. Robinson continued his job search throughout 2005. His tax return showed that his income for that year was $24,922. Ultimately, in 2006, Robinson found work in Philadelphia, Pennsylvania, making approximately $37,000 per year. Robinson testified that he and his wife had never lived outside the Southeast before and that they did not know anyone in Pennsylvania.

Analysis

I. Personal Jurisdiction

Sverdrup argues on appeal that the trial court lacked personal jurisdiction over it and that the trial court erred in denying its motion to dismiss on that basis. Sverdrup has admitted that it does business in Alabama and that it maintains corporate offices in Huntsville. However, Sverdrup argues that Robinson did not show that Sverdrup’s acts at issue in this action — acts taken in furtherance of the joint venture — were purposefully directed toward Alabama. Accordingly, Sverdrup argues, it may not be held liable in Alabama for any actions it took on behalf of the joint venture.

Sverdrup has waived the defense of lack of jurisdiction over the person. The trial court’s rejection of the defense on the merits was gratuitous. “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, 880 So.2d 726, 729 (Ala.2002). Rule 12(b), Ala. R. Civ. P., provides: “Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is permitted, except that the following defenses may ... be made by motion: ... (2) lack of jurisdiction over the person....” Rule 12(h)(1), Ala. R. Civ. P., states: “A defense of lack of jurisdiction over the person ... is waived ... if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” Accordingly, the defense of lack of personal jurisdiction is waived if it is not raised in the first responsive pleading or in a motion filed before the first responsive pleading pursuant to Rule 12(b). See, e.g., Ex parte Maness, 386 So.2d 429, 431 (Ala.1980) (applying Rule 12(h)(1) to conclude: “Here, defendants’ motion for change of venue was not made until ten months after their pleadings. It was, therefore, waived.”).

In this case, Sverdrup did not file, before it filed its answer, a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), and it did not raise the defense in its answer to the complaint. It is apparent from the original complaint that Robinson asserted claims against Sverdrup for events that occurred in Tennessee relative to its participation in the joint venture’s proposal in response to the RFP. Accordingly, the defense of lack of personal jurisdiction was available to Sverdrup at the time it filed its first responsive pleading. Sverdrup did not raise the defense until it filed its motion to dismiss, more than 18 months later. Therefore, it appears that Sverdrup has waived its challenge to the trial court’s exercise of personal jurisdiction over it.

Furthermore, this Court has explained:

“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The sufficiency of a party’s contacts are assessed as follows:
“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result)....
“In the case of either general in per-sonam jurisdiction or specific in person-am jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.’ Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).”

Elliott, 830 So.2d at 730-31 (emphasis added). Similarly, this Court has stated: “General jurisdiction applies where a defendant’s activities in the forum state are ‘substantial’ or ‘continuous and systematic,’ regardless of whether those activities gave rise to the lawsuit.” Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), in which the United States Supreme Court also stated: “When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.”).

Sverdrup admits doing business in Alabama and maintaining corporate offices in Huntsville. It, therefore, admittedly has “purposefully directed” acts toward this State sufficient to support a finding of “minimum contacts.” The regular maintenance of offices in Alabama is an activity both “continuous and systematic,” so as to subject Sverdrup to general personal jurisdiction in this State. Consequently, it may be subject to jurisdiction in Alabama, regardless of whether the activities forming the basis of that jurisdiction gave rise to the present action. Therefore, even if the defense had not been waived, it fails as a matter of law.

II. Particularity of the Fraud Claims

Sverdrup also argues that Robinson failed to plead his fraud claims with particularity and, therefore, that the trial court erred in submitting the intentional-misrepresentation claim to the jury and in entering a judgment on the jury’s verdict in favor of Robinson on that claim. Sverdrup does not allege any particular defect in pleading, merely that “Robinson did not plead fraud with the particularity expected from Tennessee’s substantive law.” Moreover, Sverdrup does not cite any Tennessee authority to support its argument. Additionally, without explaining how they apply except to state that Robinson “omitted the sine qua non” of his claim, Sverdrup also cites two cases from the United States Court of Appeals for the Eleventh Circuit regarding Rule 9(b), Fed. R. Civ. P., as it relates to claims under the False Claims Act, 31 U.S.C. § 3729 et seq. See United States ex rel. Atkins v. McInteer, 470 F.3d 1350 (11th Cir.2006), and United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301 (11th Cir.2002).

Rule 9(b), Ala. R. Civ. P., provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” The Committee Comments on 1973 Adoption of Rule 9 explain:

“[TJhis special requirement [in Rule 9(b) ] as to fraud and mistake does not require every element in such actions to be stated with particularity. It simply commands the pleader to use more than generalized or conclusory statements to set out the fraud complained of. The pleading must show time, place and the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained .... But knowledge by the defendant of the falsity of the representation and reliance on the representation by the plaintiff can still be generally alleged .... [I]t should be expected that the courts will strive to find the details necessary for the sufficiency of such a complaint, if the pleading gives fair notice to the opposing party....”

See also Bethel v. Thorn, 757 So.2d 1154, 1158 (Ala.1999). “The purpose of this rule is to give fair notice to the opposing party.” Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899, 901 (Ala.1979); see also Kabel v. Brady, 519 So.2d 912, 916 (Ala.1987).

In his fifth amended complaint, Robinson alleged 1) that he and Sverdrup engaged in discussions regarding Sverdrup’s use of Robinson as a subcontractor in its proposal; 2) that those discussions culminated in a teaming agreement in February 2003; 3) that Sverdrup worked on the proposal long before the execution of the February 2003 teaming agreement and had decided to internalize inventory services; 4) that Sverdrup and the other joint venturers included a new system of inventory, Initiative 13, in its proposal to the Air Force; 5) that Sverdrup never told Robinson about these changes in inventory management; 6) that, per Sverdrup’s instruction, Robinson submitted a cost proposal with a description of his existing work, although Sverdrup knew that such a proposed subcontract would be insufficient; 7) that Robinson lost the opportunity to apply for employment with the joint venture when Sverdrup instructed him not to apply because he was already “part of the team”; 8) that Sverdrup made misrepresentations to Robinson in February and June 2003; 9) that Robinson relied on the misrepresentations by submitting a nonconforming subcontract and by not applying for employment with the joint venture; and 10) that Robinson suffered damage in lost profits and lost employment.

Based on the foregoing, it is apparent that Robinson alleged the time of the misrepresentations (February 2003 and June 2003), the content of the misrepresentations (that in preparing the proposal in response to the RFP Sverdrup had not changed its inventory procedures and had named Robinson as a subcontractor), the facts misrepresented (that Sverdrup had changed its inventory procedures and had not proposed to use Robinson as a subcontractor), the defendant’s knowledge of the falsity of the representations (Sverdrup’s knowledge while it was developing the proposal that it was changing its inventory procedures and that it would not use Robinson as a subcontractor), and the result of the misrepresentations (Robinson’s exclusion from the development of the proposal).

Although it appears that Robinson did not allege the place where the misrepresentations occurred, his fifth amended complaint included sufficient allegations to place Sverdrup on notice of the acts complained of; Robinson, therefore, satisfied Rule 9(b). See VanLoock v. Curran, 489 So.2d 525, 534 (Ala.1986) (“While the pleading is perhaps not a model of clarity and specificity, it sufficiently comports with the purpose of Rule 9(b) in that it gives the defendants fair notice of the acts complained of.”). The record supports this conclusion in that the trial court’s pretrial order describes Sverdrup’s defenses to Robinson’s allegation of intentional misrepresentation. The trial court also summarized Sverdrup’s defenses to the intentional-misrepresentation claim in open court before trial. Accordingly, it is apparent that Robinson’s allegations of fraud sufficiently apprised Sverdrup of the matters at issue so that Sverdrup was able to formulate a defense. Thus, the fifth amended complaint satisfied Rule 9(b). Sverdrup’s conclusory claim of lack of particularity in pleading the fraud claims without any elaboration as to what was missing does not warrant a reversal of the trial court’s judgment.

III. Judgment as a Matter of Law

Sverdrup next argues that the trial court erred in denying its motion for a judgment as a matter of law (“JML”). Sverdrup largely asks us to reweigh the evidence presented to the jury; however, to the extent that Sverdrup properly seeks review of the denial of its motion for a JML, it raises issues regarding the sufficiency of the evidence of intentional misrepresentation generally and the evidence of damages specifically.

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

Under Tennessee law, the elements of a claim of intentional misrepresentation have been stated as follows:

“In order to prove a claim based on fraudulent or intentional misrepresentation, a plaintiff must show that:

“ 1) the defendant made a representation of an existing or past fact; 2) the representation was false when made; 3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly; 5) plaintiff reasonably relied on the misrepresented material fact; and 6) plaintiff suffered damage as a result of the misrepresentation.’
“Metro. Gov’t of Nashville & Davidson County v. McKinney, 852 S.W.2d 233, 237 (Tenn.Ct.App.1992); see First Nat’l Bank v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn.1991); Lopez v. Taylor, 195 S.W.3d 627, 634 (Tenn.Ct.App.2005).”

Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn.2008).

Viewed in the light most favorable to Robinson, the evidence presented at trial showed that Sverdrup had decided as early as the summer of 2002 to change the method of inventory management it proposed for the AEDC project and to exclude Robinson as a subcontractor. Although that information was closely held within the company, Frame admitted that he was aware of these decisions before his dealings with Robinson.

The evidence regarding Frame’s representations to Robinson was disputed. Robinson testified that Frame told him that he had obtained approval for Robinson to “be on the contract,” i.e., the proposal, and that Robinson should speak to Mahler about obtaining a teaming agreement for that purpose. Frame, however, testified that he merely told Robinson that Sverdrup intended to “take an internal approach,” but that he should contact Mahler about obtaining a teaming agreement for other purposes. Although the evidence was disputed, it was sufficient, for purposes of defending a motion for a JML, to show that Sverdrup, through Frame, knowingly made a false representation of an existing fact. Robinson, therefore, presented sufficient evidence of the first four elements of intentional misrepresentation under Tennessee law: that “‘1) the defendant made a representation of an existing or past fact; 2) the representation was false when made; 3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly....’” Walker, 249 S.W.3d at 311 (quoting Metropolitan Gov’t of Nashville & Davidson County v. McKinney, 852 S.W.2d 233, 237 (Tenn.Ct.App.1992)).

Regarding the fifth element, whether the “ ‘plaintiff reasonably relied on the misrepresented material fact,’ ” id., the evidence showed that Robinson submitted a cost proposal for a subcontract that did not conform to the proposal presented by Sverdrup’s joint venture in response to the RFP. Robinson also testified that he relied on Frame’s representation by not applying for employment with the joint venture and by not seeking other employment opportunities sooner. Sverdrup’s representatives denied that Robinson could have obtained employment with the joint venture. It is also apparent that Robinson did not seek other subcontracting opportunities with Sverdrup’s competitors. Again, although disputed, this evidence sufficiently raised a question for the jury regarding Robinson’s reliance on Sverdrup’s alleged misrepresentations.

Finally, regarding whether Robinson “ ‘suffered damage as a result of the misrepresentation,’ ” Walker, 249 S.W.3d at 311, Sverdrup argues that Robinson did not submit sufficient proof of damages for mental anguish or for lost profits. Regarding the evidence of mental-anguish damages, Sverdrup does not cite any authority in its brief on appeal. As a result, Sverdrup has failed to comply with the requirements of Rule 28(a)(10), Ala. R.App. P. For the first time in its reply brief, Sverdrup cites authority to support its argument; however, this Court will not consider arguments raised for the first time in a reply brief. See Kyser v. Harrison, 908 So.2d 914, 917 (Ala.2005)(fmding argument waived under Rule 28(a)(10) where argument was made in initial brief but was not supported with authority until reply brief).

Regarding the evidence of lost profits, Sverdrup focuses on the accuracy of Robinson’s profit calculations. Specifically, Sverdrup argues that Robinson did not present evidence from which lost profits could be calculated to a reasonable certainty. Citing Baker v. Hooper, 50 S.W.3d 463, 470 (Tenn.Ct.App.2001)(stating lost profits are recoverable for breach of contract if the amount can be proved with reasonable certainty), and Kids’ Universe v. In2Labs, 95 Cal.App.4th 870, 116 Cal.Rptr.2d 158 (2002)(discussing lost-profits damages under California law), Sverdrup argues that, because there were no definite terms to any proposed subcontract, any profits Robinson expected from a subcontract were speculative. Sverdrup also argues that Robinson should not have been permitted to rely on evidence of past profits because Sverdrup changed its method of inventory.

Robinson notes that, under Tennessee law, “[w]hen lost profits are the proper measure of damages, they need only be proved with reasonable certainty, not with mathematical precision.” McClain v. Kimbrough Constr. Co., 806 S.W.2d 194, 200 (Tenn.Ct.App.1990). He relies on his testimony regarding the profits of his business in past years and the supporting tax returns. Based on this evidence, Robinson argues, the jury could calculate lost profits to a reasonable certainty.

Our inquiry is limited to whether there was sufficient evidence of damage to submit Robinson’s claim to the jury. The evidence regarding Robinson’s profit calculations was disputed. However, Robinson presented evidence of lost profits in the form of documents showing his previous years’ tax returns, his August 2003 cost proposal, the proposed subcontract Sverdrup submitted to the Air Force, and testimony from an Air Force representative that Robinson’s proposed subcontract would have been “fine” had Sverdrup’s proposal not called for removal of Robinson as a subcontractor. Sverdrup did not show that its dealings with Robinson were subject to market forces or such other uncertainties as would render anticipated profits in a typical subcontract speculative. Based on the evidence Robinson submitted, we cannot say, as a matter of law, that the jury could not have determined the profits Robinson would have made under a subcontract with Sverdrup to a reasonable certainty.

Furthermore, Robinson presented other evidence to support an award of damages, specifically evidence regarding his shock at learning that his subcontract had been rejected, his loss of earnings after his subcontract at the AEDC ended, his extended job search, and his out-of-state move to find work. Therefore, even -without evidence regarding lost profits, Robinson presented evidence from which the jury could have determined that he suffered damage as a result of Sverdrup’s misrepresentations.

Based on the foregoing, we cannot say as a matter of law that the jury could not have concluded that Robinson was entitled to a judgment in the amount of $78,000 on his claim of intentional misrepresentation. As a result, Sverdrup was not entitled to a JML, and the trial court did not err in denying its motion.

Conclusion

Based on the foregoing, we overrule Sverdrup’s application for a rehearing and affirm the trial court’s judgment.

NO-OPINION AFFIRMANCE OF AUGUST 14, 2009, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Robinson operates ADR Technical Services as a sole proprietorship.

      . Sverdrup raises the same arguments in its application for a rehearing that it raised in its briefs on appeal. For purposes of simplification, this opinion will refer only to Sverdrup's briefs on appeal.

      . See 48 C.F.R. § 45.508 (“The contractor shall periodically physically inventory all Government property ... in its possession or control. ...”) (Title 48, Part 45, was amended in 2007, and subpart 508 no longer appears in the Code of Federal Regulations. However, die parties do not dispute that it was effective at all times relevant to this action.).

      . Robinson referred to Sverdrup’s proposal in response to the RFP as “the contract” throughout his testimony.

      . In its brief on appeal, Sverdrup refers to Aerospace Testing Alliance as a partnership; however, no allegation or evidence in the record shows that it is anything more than a joint venture.

      . Indeed, Sverdrup spends a significant portion of its brief arguing that the trial court lacked personal jurisdiction over the joint venture and that, because Sverdrup's actions giving rise to the complaint were taken on behalf of the joint venture, the trial court did not have jurisdiction over it.

      . See also 5C C. Wright & A. Miller, Federal Practice and Procedure § 1391 (3d ed. 2001) (“If a party does not make a preliminary motion or if a defense was not available at the time he first moved, that party is not vulnerable to a waiver argument and may present a Rule 12(b)(2) through Rule 12(b)(5) challenge but it must be included in the responsive pleading. The penalty for failing to raise any of these defenses at this point is waiver as numerous federal courts have held, as the illustrative case citations in the note below from throughout the federal judicial system demonstrate, and as the text of the rule makes clear.... Thus, the message conveyed by the present version of Rule 12(h)(1) seems quite clear. It advises a litigant to exercise great diligence in challenging personal jurisdiction, venue, or service of process. If that party wishes to raise any of these defenses, that must be done at the time the first significant defensive move is made — whether it be by way of a Ride 12 motion or a responsive pleading. Furthermore, a party can be held to have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of Rule 12(h)(1) have been met ....” (footnotes omitted; emphasis added)).

      . Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005)("An amended complaint supersedes the previously filed complaint and becomes the operative pleading, unless it subsequently is modified.”).

      . In his brief in response to Sverdrup’s original brief, Robinson cites a slightly different statement of the elements of intentional misrepresentation from Shahrdar v. Global Housing, Inc., 983 S.W.2d 230, 237 (Tenn.Ct.App.1998). Sverdrup takes issue with this difference in its reply brief; however, a close reading of the two statements shows that they are not materially different.

      . Sverdrup argues that Robinson impermis-sibly relied on an “imputed knowledge” theory because, it says, Mahler and others who made representations to him did not have actual knowledge of Initiative 13. Sverdrup contends that Tennessee law does not allow recovery for intentional misrepresentation under such a theory and that, to recover against the corporation, Robinson must show that each corporate representative who made a misrepresentation to him had the requisite knowledge and intent. We need not reach this question, however, because Robinson presented sufficient evidence showing that Frame, a corporate officer with knowledge of Initiative 13, made false representations to him of existing facts.

      . Sverdrup cites General Constr. Contractors Ass’n, Inc. v. Greater St. Thomas Baptist Church, 107 S.W.3d 513, 524 (Tenn.Ct.App.2002) (finding lost profits speculative in breach-of-contract action); Anderson-Gregory Co. v. Lea, 51 Tenn.App. 612, 370 S.W.2d 934, 937 (1963)(finding that damages in breach-of-contract action should be limited to damages actually suffered); and McClain v. Kimbrough Constr. Co., 806 S.W.2d 194, 200-01 (Tenn.Ct.App.1990) (applying formula to determine subcontractor’s net profits).


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Stephanie NETTLES v. Arnold WHITE.
    2061038.
    Court of Civil Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied June 20, 2008.
    Deborah M. Nickson, Montgomery, for appellant.

      Michael L. White and G. Baron Coleman of Webster, Henry, Lyons & White, P.C., Montgomery, for appellee.
   BRYAN, Judge.

The plaintiff, Stephanie Nettles, appeals a summary judgment in favor of the defendant, Arnold White. We affirm.

On November 30, 2006, Nettles sued White, alleging that White had negligently or wantonly operated a vehicle on Atlanta Highway in the City of Montgomery on December 1, 2004, proximately causing his vehicle to collide with Nettles’s vehicle and injure her. Nettles’s complaint did not include any fictitiously named defendants. Answering, White denied the material allegations of Nettles’s complaint and asserted various affirmative defenses.

On February 15, 2007, Nettles amended her complaint. The amended complaint replaced the claim alleged in Nettles’s original complaint with a claim alleging that White’s employee, Termaine Courtney Jackson, had negligently or wantonly operated White’s vehicle on Atlanta Highway on December 1, 2004, proximately causing White’s vehicle to collide with Nettles’s vehicle and injure her. In addition, the amended complaint added claims alleging that White was liable for Nettles’s injuries because he had negligently entrusted his vehicle to Jackson and because he had negligently hired, trained, and supervised Jackson.

White moved for a summary judgment, asserting that the three claims alleged in Nettles’s amended complaint were barred by the applicable two-year statute of limitations because, he said, they did not relate back to the date Nettles filed her original complaint. In support of his summary-judgment motion, White submitted, among other things, a copy of the Alabama Uniform Traffic Accident Report regarding the December 1, 2004, collision. The accident report indicated that Jackson was driving White’s vehicle when the collision occurred.

In opposition to White’s summary-judgment motion, Nettles argued that the claims alleged in her amended complaint did relate back to the date she filed her original complaint because, she said, the claims alleged in her amended complaint arose out of the same transaction or occurrence as the claim alleged in her original complaint.

The trial court granted White’s summary-judgment motion without explaining its rationale. Nettles then filed a motion to vacate the summary judgment pursuant to Rule 59(e), Ala. R. Civ. P. After the trial court denied her Rule 59(e) motion, Nettles timely appealed to this court. Because this court lacked appellate jurisdiction, we transferred Nettles’s appeal to the supreme court. The supreme court then transferred Nettles’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Nettles argues that the trial court erred in granting White’s summary-judgment motion because, she says, the claims alleged in her amended complaint relate back to the date she filed her original complaint because, she says, they arose out of the same transaction or occurrence as the claim alleged in her original complaint.

In pertinent part, Rule 15(c), Ala. R. Civ. P., provides:

“(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
“(2) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading ...

(Emphasis added.)

In Callens v. Jefferson County Nursing Home, 769 So.2d 273 (Ala.2000), the plaintiffs mother suffered serious injuries on December 11, 1995, when employees of a nursing home restrained her in order to insert a catheter. Subsequently, the plaintiffs mother died. On June 17, 1997, the plaintiff sued the nursing home and others, alleging “wrongful death, civil conspiracy, breach of contract, and the tort of outrage.” Callens, 769 So.2d at 278. In an amended complaint filed on June 18, 1998, the plaintiff stated claims “alleging (1) personal injury to [the plaintiffs mother] pri- or to her death and (2) negligent hiring, training, and supervision on the part of [some of the defendants], which negligent acts she alleged caused personal injury to [the plaintiffs mother] prior to her death.” 769 So.2d at 276. The trial court dismissed the claims added by the plaintiffs amended complaint because, it concluded, those claims did not relate back to the date the original complaint was filed and, therefore, were barred by the applicable two-year statute of limitations. The Alabama Supreme Court reversed the trial court’s judgment, holding that the claims added by the amended complaint related back to the date the original complaint was filed because they “arose out of the same ‘conduct, transaction, or occurrence’ as that alleged in the original complaint,” i.e., the December 11, 1995, injury to the plaintiffs mother. 769 So.2d at 278.

In the case now before us, the claims alleged in Nettles’s amended complaint arose out of the same transaction or occurrence as the claim alleged in Nettles’s original complaint, i.e., the December 1, 2004, motor-vehicle accident on Atlanta Highway in Montgomery that resulted in Nettles’s injuries. Therefore, the claims asserted in Nettles’s amended complaint related back to the date her original complaint was filed under Rule 15(c)(2). See Callens.

White argues, however, that, even if the claims asserted in Nettles’s amended complaint relate back to the date her original complaint was filed and, therefore, are not barred by the statute of limitations, we should nonetheless affirm the summary judgment in White’s favor because, he says, there was an undue delay in Nettles’s filing her amended complaint. As the Alabama Supreme Court has noted, “ ‘[u]ndue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ ” Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001) (quoting Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989)). In the case now before us, the Alabama Uniform Traffic Accident Report regarding the December 1, 2004, collision indicates that, within a few days of the December 1, 2004, collision, the information that Jackson was driving White’s vehicle when the collision occurred was available to Nettles. Despite the availability of this information within a few days of December 1, 2004, Nettles did not file her amended complaint until February 15, 2007. We conclude that this was an undue delay. See Prior v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092, 1097 n. 2 (Ala.2006) (concluding in dicta that the filing of an amended complaint 11 months after the plaintiff had learned of the facts upon which she based the amended complaint constituted an undue delay).

Although White did not assert undue delay in the filing of Nettles’s amended complaint as a ground in support of his summary-judgment motion,

“this Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotx Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found. P.C., 881 So.2d 1013, 1020 (Ala.2003). Thus, in order to determine whether Nettles’s undue delay in filing her amended complaint is a proper basis for affirming the summary judgment in favor of White, we must determine whether a plaintiffs undue delay in filing an amended complaint falls within one of the exceptions to the rule that an appellate court may affirm a trial court’s judgment based on a ground that was not raised before the trial court.

It can be inferred from dicta in Prior v. Cancer Surgery of Mobile, P.C., supra, that such undue delay does not fall within one of those exceptions. In Prior v. Cancer Surgery of Mobile, P.C., the plaintiff filed a second amended complaint, and the defendant moved for a summary judgment on the ground that the claims asserted in the second amended complaint were time-barred because they did not relate back to the date of the filing of the original complaint. The trial court granted the defendant’s summary-judgment motion, and the plaintiff appealed to the supreme court. The supreme court affirmed, concluding that the claims asserted in the second amended complaint were time-barred because they did not relate back. However, in a footnote, the supreme court indicated that it could have affirmed the trial court’s judgment on the ground that there had been an undue delay in the filing of the second amended complaint:

“We also note that Mrs. Prior unduly delayed filing the second amended complaint. Although she was aware at least as early as September 2001 that Dr. Walker helped treat Prior, she did not file the second amended complaint alleging Dr. Walker’s negligence until August 2002. ‘ “[Ujndue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.” ’ Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001) (quoting Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989)). See also Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001) (‘We will affirm a trial court if it is right for any reason supported by the record.’).”

959 So.2d at 1097 n. 2 (emphasis added).

It can be inferred from the supreme court’s omission of any mention of the defendant’s having asserted undue delay as a ground in support of its summary-judgment motion and from the supreme court’s citing the rule that it will affirm a trial court’s judgment if it is right for any reason that the defendant in Prior had not raised undue delay in the filing of the second amended complaint as a ground in support of its summary-judgment motion. Furthermore, it can be inferred from the supreme court’s indicating that it could have affirmed the summary judgment on the ground of that undue delay that that ground does not fall within one of the exceptions to the rule that an appellate court “will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected by the trial court.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found. P.C., 881 So.2d at 1020. Accordingly, we affirm the summary judgment in favor of White on the ground that there was an undue delay in Nettles’s filing her amended complaint even though White did not raise that ground in the trial court.

AFFIRMED.

PITTMAN, J., concurs.

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


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Stephanie NETTLES. (In re Stephanie Nettles v. Arnold White).
    1071340.
    Supreme Court of Alabama.
    Oct. 23, 2009.
    Deborah M. Nickson, Montgomery, for petitioner.
    William H.' Webster and Michael L. White of Webster, Henry, Lyons & White, P.C., Montgomery, for respondent.
   BOLIN, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

LYONS, WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

I respectfully dissent from quashing the writ of certiorari. The petition before us purported to provide two grounds for cer-tiorari review. This Court initially granted review as to the second of those grounds, but today quashes that writ. I write separately to explain my reasons for dissenting from quashing the writ as to “ground two,” and in so doing I take this opportunity to explain briefly my reason for having concurred in the denial of cer-tiorari review as to “ground one.”

Ground One

Under § 6-5-300, Ala.Code 1975, it does not appear to me that an amendment to the complaint was even necessary for Stephanie Nettles, the petitioner, to assert her respondeat superior claim. Section 6-5-300 expressly allows a plaintiff to allege negligent performance by the employer and support that allegation at trial with proof of negligence by an employee. Therefore, I do not agree with the premise of much of the opinion by the Court of Civil Appeals — that a timely amendment to the complaint was necessary in order for Nettles to go to trial on a respondeat superior theory. I believe this was the essence of Nettles’s assertions in ground one of her petition for a writ of certiorari to this Court.

Nonetheless, I concurred to deny review as to ground one. The petition did not state an issue of first impression as to the proper interpretation or application of § 6-5-300. Neither did the petition state a conflict between the Court of Civil Appeals’ opinion, with an appropriate quotation from that opinion, and any prior opinion of that court or this Court applying § 6-5-300. See generally Rule 39(a)(1)(C) and (D), Ala. RApp. P.

Ground Two

The ground upon which this Court granted certiorari review, a decision with which I agreed, was a possible conflict between the decision by the Court of Civil Appeals in this case and this Court’s decision in Ex parte Bowman, 986 So.2d 1152 (Ala.2007). See Rule 39(a)(1)(D), Ala. RApp. P. I dissent from the Court’s decision today to quash the writ.

In her petition to this Court, Nettles quotes the following passage from the opinion of the Court of Civil Appeals:

“As the Alabama Supreme Court has noted, ‘ “[u]ndue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.” ’ Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001) (quoting Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989)). In the case now before us, the Alabama Uniform Traffic Accident Report regarding the December 1, 2004, collision indicates that, within a few days of the December 1, 2004, collision, the information that Jackson was driving White’s vehicle when the collision occurred was available to Nettles. Despite the availability of this information within a few days of December 1, 2004, Nettles did not file her amended complaint until February 15, 2007. We conclude that this was an undue delay. See Prior v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092, 1097 n. 2 (Ala.2006) (concluding in dicta that the filing of an amended complaint 11 months after the plaintiff had learned of the facts upon which she based the amended complaint constituted an undue delay).”

Nettles v. White, 36 So.3d 48, 50 (Ala.Civ.App.2008). Nettles argues that a showing of prejudice is necessary and that none was made in the present case. She quotes the following passage from this Court’s decision in Ex parte Bowman, supra, as conflicting -with the decision of the Court of Civil Appeals:

“We now turn to whether the 11-month delay between the time the Heards learned that Bowman was involved in purchasing the APV tank and the time the Heards amended their complaint to substitute Bowman is a basis for mandamus relief. This Court has recognized that delay in amending a complaint to substitute a named party for a fictitiously named party once information is available can defeat the availability of the doctrine of relation back. See Denney v. Serio, 446 So.2d 7, 11 (Ala.1984) (‘Although this Court has refused to apply the relation-back principle to inordinate delays from the time of knowledge of the fictitious party’s true identity until actual substitution of the fictitious party’s true name—see Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981) (three-year delay too long); Shirley v. Getty Oil Co., 367 So.2d 1388 (Ala.1979) (17-month delay too long) — Dr. Serio proffered no evidence establishing that Denney’s dilatory substitution in fact prejudiced him. See generally Ex parte Tidmore, 418 So.2d 866 (Ala.1982) (two-year delay in substituting proper defendant too long where party sought to be added would be prejudiced thereby).’ (emphasis added)).
“Bowman did not assert in his motion to dismiss filed in the trial court prejudice as justification for not allowing the amended complaint to relate back to the filing of the original complaint. Before this Court, Bowman simply argues that if a showing of prejudice is necessary, that showing has been met. Bowman has failed to show that he is entitled to mandamus relief on the ground of delay in substituting him for a fictitiously named defendant.”

986 So.2d at 1157-58.

In the present case, the filing of the original complaint was timely. I do not see the 77 days between the time of the filing of that complaint and the filing of the amendment as an undue delay. In any event, I believe there is a conflict between Bowman and the decision of the Court of Civil Appeals in relation to the requirement of a showing of prejudice. Further, given the fact that Arnold White did not assert undue delay in the filing of the amended complaint as a ground in support of the summary-judgment motion, I do not believe that the Court of Civil Appeals could properly base its decision on that ground. It is not an alternative, valid “legal ground,” but rather one that entails a mixed question of law and fact and one that requires the exercise of discretion on the part of the trial court. Furthermore, it is a ground that could not be reached in this case by an appellate court without implicating the due-process constraints referenced in Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So.2d 1013, 1020 (Ala.2003).

COBB, C.J., concurs.


author: THOMAS, Judge.

text:
    Mark W. STEMLER v. Heather STEMLER.
    2080021.
    Court of Civil Appeals of Alabama.
    July 2, 2009.
    Certiorari Denied Oct. 16, 2009 Alabama Supreme Court 1081367.

      Johnnie Smith, Montgomery, for appellant.
    Robert T. Meadows III of Capell & Howard, P.C., Opelika, for appellee.
   THOMAS, Judge.

Mark W. Stemler (“the husband”) appeals from the trial court’s order invalidating the antenuptial agreement entered into by the husband and Heather Stemler (“the wife”). We affirm.

Facts and Procedural History

The husband and the wife were married in June 1997. The husband is 15 years older than the wife and, at the time of the parties’ marriage, had accumulated real-estate holdings and other property worth approximately $2 million. The wife had little in the way of assets. The husband insisted that the parties enter into an ante-nuptial agreement.

The husband contacted an attorney in a firm he had used for property transactions to draft the agreement. The agreement provided, in pertinent part, that in the event of a divorce the wife would not have any claim to any property the husband owned before the marriage. Likewise, the husband would not have any claim to any property the wife owned before the marriage. The agreement provided that any property accumulated during the marriage would be divided according to the manner in which it had been titled; property titled in the husband’s name would belong to the husband, property titled in the wife’s name would belong to the wife, and property titled jointly would be divided between the parties. The agreement also provided that if the parties had been married for at least 10 years at the time of divorce, the wife would receive $50,000 and would waive all other rights to alimony.

The wife received a copy of the agreement on April 9, 1997, and retained independent counsel to review the agreement. Nearly one month later, on May 7, 1997, the wife signed the agreement.

In October 2006, the wife filed a petition for a divorce in the Lee Circuit Court. After numerous continuances, the trial court heard ore tenus evidence on December 27 and 28, 2007, and on January 2, 3, 24, and 25, 2008. On April 28, 2008, the trial court entered an order divorcing the parties and invalidating the antenuptial agreement; the April 28 order was not a final judgment. The trial court’s order included, among other findings, the following findings regarding the antenuptial agreement:

“(a) That the [wife] was not adequately advised of the [husband’s] assets and income prior to or at the time she signed the Antenuptial Agreement and had no independent knowledge of the extent of the [husband’s] assets and income.
“(b) At the time the [wife] signed the Agreement, the Exhibits which represented the assets owned at the time by the [husband] were not attached to the document ....
“(c) The Antenuptial Agreement contains a provision under the heading ‘Financial Disclosure’:
“ ‘The [husband and the wife] have revealed to each other full financial information regarding their respective net worth, assets, holdings, income, and liabilities. They have made full disclosure to each other, not only by their discussions with each other, but with a full explanation of their respective financial statements and summaries that have been exchanged and signed by each of the parties.... ’
“The evidence is clearly contrary to the above and there is absolutely no evidence of exchange or presentment of financial statements.
“(e) Considering all of the circumstances and facts surrounding the Ante-nuptial Agreement it is basically unfair and inequitable to the [wife] and is disproportionate to the means of the [husband].”

On May 28, 2008, the husband filed a “postjudgment” motion to alter, amend, or vacate the trial court’s April 28, 2008, order. The trial court entered its final judgment adjudicating all matters in the case on June 12, 2008. The husband’s postjudgment motion was denied by operation of law on September 10, 2008. The husband appeals, asserting as error the trial court’s determination that the ante-nuptial agreement was invalid.

Issues

The husband raises three issues in his appeal: (1) whether the trial court erred in finding that the antenuptial agreement was unfair and inequitable to the wife and disproportionate to the means of the husband; (2) whether the trial court erred in finding that the husband had failed to rebut the presumption that the husband had engaged in concealment or that the wife had lacked a sufficient general knowledge of the husband’s income and assets; and (3) whether the trial court erred in allowing the wife to introduce into evidence a copy of the antenuptial agreement.

Standard of Review

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

The antenuptial agreement provides that Florida law governs its construction and application, and both parties agree that Florida law controls. The test used by Florida courts to determine if an antenup-tial agreement is valid was expressed in Casto v. Casto, 508 So.2d 330 (Fla.1987). In that case, the Florida Supreme Court held:

“Postnuptial agreements[] regarding alimony and marital property are properly enforceable in dissolution proceedings. There are, however, two separate grounds by which either spouse may challenge such an agreement and have it vacated or modified.
“First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872 (1947); Hahn [v. Hahn, 465 So.2d 1352 (Fla.Dist.Ct.App.1985) ]; O’Connor [v. O’Connor, 435 So.2d 344 (Fla.Dist.Ct.App.1983) ]. See also Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).
“The second ground to vacate a settlement agreement contains multiple elements. Initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Del Vecchio, 143 So.2d at 20. To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status. With this basic information, a trial court may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable. In making this determination, the trial court must find that the agreement is ‘disproportionate to the means’ of the defending spouse. Id. This finding requires some evidence in the record to establish a defending spouse’s financial means. Additional evidence other than the basic financial information may be necessary to establish the unreasonableness of the agreement.
“Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either (a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. The test in this regard is the adequacy of the challenging spouse’s knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information. Id. See Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Del Vecchio.”

Casto, 508 So.2d at 333 (footnote omitted).

The husband first argues that the trial court erred in finding that the ante-nuptial agreement was unfair or inequitable to the wife and disproportionate to the means of the husband. The agreement provided that, after a marriage of 10 years, the wife would receive $50,000, any property that was titled in her name, and a share of any property titled jointly with the husband. None of the parties’ real property was titled in the wife’s name, and only the marital home had been jointly titled in the parties’ names. Additionally, at the time of the marriage the husband had a net worth of approximately $2 million, which had increased to between $5 million and $10 million at the time of the divorce.

Florida courts have held similar provisions to be unfair to the challenging spouse and disproportionate to the means of the spouse seeking to enforce the agreement. See Hjortaas v. McCabe, 656 So.2d 168, 170 (Fla.Dist.Ct.App.1995). (agreement held inequitable when wife left six-year marriage with $48,000 and husband was worth $2 million); see also Casto, 508 So.2d at 334 (agreement inequitable when wife received $225,000 and husband’s assets totaled $10 million). Therefore, following the holdings of Hjortaas and Casto, the trial court could have found that the agreement was unfair to the wife and disproportionate to the means of the husband.

The husband next argues that, even if the agreement was unfair or inadequate, its validity should be upheld because, he argues, the wife had a sufficient general knowledge of the husband’s assets and income. In support of his argument, the husband cites Waton v. Waton, 887 So.2d 419 (Fla.Dist.Ct.App.2004). In Wa- ton, the husband prepared an antenuptial agreement disclosing his income and attached to it a list of his assets, including the values for most of the assets. The husband had interests in three businesses. However, those assets did not have an expressed valuation; they were listed as having an unknown or undetermined value. One of the three interests, the husband’s interest in a life-insurance business, was a major asset of the husband’s estate. The husband stated his ownership percentage in that business and provided the following information regarding the revenues of the business:

“ ‘Corporation itself makes approximately $750,000.00 [] a year gross on renewal commissions on current policies, deductions are made from the gross commissions to pay the respective agents their proportionate or required commissions. Corporation makes approximately $1,000,000.00 a year gross on new policies, but from these sums payments are made to cover [ ] salaries, office overhead, and general operating expenses of the office.’ ”

887 So.2d at 424.

The court in Waton found that the above information regarding the husband’s interest in the business, coupled with the husband’s disclosure of his income and the value of his other assets, gave the wife sufficient general and approximate knowledge of the husband’s net worth and income.

This case is clearly distinguishable from Waton. After hearing disputed evidence, the trial court made a factual finding that none of the exhibits listing the assets owned by the husband had been attached to the antenuptial agreement at the time the wife signed it. Absent those exhibits, the agreement in this case did not contain any information regarding the husband’s income or the value of any of his assets. The only information present in the agreement was a list of assets with no attached values. Furthermore, there was no information in the agreement disclosing the husband’s income. The husband argues that, even absent the exhibits, the wife had a general knowledge of the husband’s assets and was familiar with them. The husband also argues that the wife had a general knowledge of his income because the parties lived together before the marriage and the wife could observe his lifestyle. However, the wife’s knowledge that certain assets existed or the fact that she had viewed some of the assets is not sufficient to charge her with knowledge of the value of those assets. Similarly, the fact that the parties had lived together and the wife had observed the husband’s lifestyle is not sufficient to charge her with knowledge of the husband’s income.

“To bolster its finding that [the wife] possessed such knowledge the trial court attached substantial significance to some essentially irrelevant facts: i.e., that the parties resided together before the marriage, that [the wife] had a real estate license, ... that [the wife] had visited the Maine property on several occasions, that [the wife] knew of the construction of the Inn of Naples, and that [the wife] worked at the Inn. [The wife’s] observations of [the husband’s] Maine and Naples properties could possibly have led her to a marginal understanding of the extent of [the husband’s] wealth, but there is nothing to suggest that [the wife] possessed the financial sophistication to convert what she saw into an appraised value.”

Hjortaas v. McCabe, 656 So.2d at 170-71.

In this case, as in Hjortaas, the husband did not present any evidence indicating that the wife possessed the necessary financial sophistication to convert the information listed in the agreement to an appraised value. The fact that the husband and the wife had lived together for a time before their marriage and the fact that the wife knew of the existence of the husband’s assets are insufficient to demonstrate that the wife had sufficient ability to turn that knowledge into an appraised value of the husband’s assets.

The husband next argues that the testimony of the wife’s father demonstrates that the wife knew the value of the husband’s assets. The wife’s father testified that the wife told him the husband was worth “a couple million dollars.” The husband also points to a notation by the wife’s attorney that the husband was worth approximately $2 million. Although that evidence may be evidence indicating that the wife had a general knowledge of the husband’s assets, the wife’s knowledge of the husband’s assets is only part of the test imposed by the Florida courts. See Casto, 508 So.2d at 333 (“The defending spouse” must show that “the challenging spouse” possessed “a general and approximate knowledge ... of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.” (emphasis added)). The only information regarding the husband’s income was the income-tax returns that the husband alleges had been attached as exhibits to the agreement. However, the trial court found that those exhibits had not been attached at the time the wife signed the agreement. Absent the exhibits, there was no information from which the wife could determine the husband’s income.

Finally, the husband argues that his disclosure was sufficient because the wife did not request any additional information regarding the value of his assets or his income. However, “[u]nless it is shown that the woman is, in fact, the dominant and moving party the burden is not upon her to inquire, but upon the man to inform.” Del Vecchio v. Del Vecchio, 143 So.2d 17, 21 (Fla.1962). In this case, it is clear that the husband was the dominant and moving party behind the antenuptial agreement. Therefore, the husband bore the burden to disclose the extent and value of his assets and income to the wife. For the aforementioned reasons, the husband did not satisfy his burden to show that either he made a full, frank disclosure of the value of his assets and income or that the wife possessed a sufficient knowledge of the value of his assets and income. Therefore, the trial court’s order is due to be affirmed on this issue.

Finally, the husband argues that the trial court erred in allowing the wife to introduce a copy of the antenuptial agreement. The husband argues that the best-evidence rule precluded the court from allowing the wife to introduce a copy of the antenuptial agreement when the husband had introduced into evidence the original agreement. Rule 1002, Ala. R. Evid., provides: “To prove the content of a writing, the original writing is required, except a otherwise provided by statute, these rules, or by other rules applicable in the courts of this state.” Rule 1001(2), Ala. R. Evid., provides, in part: “An ‘original’ of a writing is the writing itself or any counterpart intended to have the same effect by a person executing or issuing it.”

The copy of the agreement introduced by the wife had been signed and notarized and was accompanied by a letter from the husband’s attorney stating, in part, “I have enclosed for your records a copy of the executed antenuptial agreement in the above referenced matter.” Thus, it appears that the parties intended the copy to have the same legal effect as the original. See Ala. R. Evid. 1001(2), Advisory Committee’s Notes (“Multiple copies of a writing constitute originals if they were intended equally to evidence the transaction by the person executing it.”). Therefore, the trial court did not err in allowing the wife to introduce a copy of the original agreement.

Conclusion

The agreement was inequitable to the ■wife and disproportionate to the means of the husband. The husband did not meet his burden of disclosure, and the wife did not have a sufficient general knowledge of the husband’s income. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . The husband filed his postjudgment motion before the trial court had entered its final judgment. A postjudgment motion filed before the entry of a final judgment “becomes effective when the judgment is entered.” New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004). Thus, the time for the trial court to rule on the husband's postjudgment motion did not begin to run until it entered its final judgment.

      . Casto applied the standards set forth for antenuptial agreements in prior Florida case-law to postnuptial agreements. See Baker v. Baker, 622 So.2d 541, 544 (Fla.Dist.Ct.App.1993).

      . The husband also argues that the trial court erred in finding that the agreement had been the product of duress. Because we find that the trial court correctly invalidated the agreement based on the husband's lack of disclosure, we need not address that issue.


text:
    E.R.W. v. M.W.M.
    2080431.
    Court of Civil Appeals of Alabama.
    July 31, 2009.
    Rehearing Denied Oct. 16, 2009.

      Jeffrey Bryan Pino of Jim Pino & Associates, P.C., Pelham, for appellant.
    Mary Lee Abele, Birmingham, for appel-lee.
   BRYAN, Judge.

The sole issue presented in this appeal is whether the Shelby Juvenile Court (“the juvenile court”) properly exercised jurisdiction over the dependency petition filed by M.W.M. (“the paternal grandmother”) pursuant to § 30-3B-101 et seq., Ala.Code 1975, Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”).

On August 20, 2007, the paternal grandmother filed a petition alleging that R.E.W. (“the child”), the grandson of the paternal grandmother, was dependent and was “without a parent to provide for his support .... ” The parents of the child, D.P. (“the mother”) and E.R.W. (“the father”), are not married, and, at the time the dependency petition was filed, both parents lived in the state of Illinois. According to the paternal grandmother’s dependency petition, the father “delivered the child” to the paternal grandmother on or about June 1, 2007. She further alleged that the father and the mother were financially unable to care for the child and that the mother had no permanent residence and was “physically ill.”

According to the custody affidavit signed by the paternal grandmother, the child had been living with her in Shelby County from June 1, 2007, through August 20, 2007, the date she filed the dependency petition, or approximately two and one-half months. Before June 1, 2007, the child had lived in Illinois with either the father or both the father and the mother from 2001 through May 31, 2007, except for a four-month stay in Shelby County with the paternal grandmother from September 2006 through December 2006. The paternal grandmother stated that she was unaware of any custody proceeding involving the child pending in Alabama or in any other state.

The juvenile court held a hearing on September 13, 2007; the mother and her attorney, but not the father, appeared. On the date of the hearing, the mother tested positive for marijuana and admitted to taking Oxycodone without a prescription. The juvenile court entered a penden-te lite order that stated that “[t]he release of the child would present a serious threat of substantial harm to the child.” The pendente lite order further stated that the mother had agreed to the juvenile court’s award of temporary custody of the child to the paternal grandmother, and the mother was awarded visitation. The order also stated that “[t]he Court shall consult with the appropriate juvenile court in the State of Illinois to determine the appropriate jurisdiction for this matter.”

The juvenile court held a second hearing on February 26, 2008; the father and his attorney, but not the mother, appeared. The father agreed that custody of the child should remain with the paternal grandmother, and the father was awarded visitation. The father was ordered to finance and participate in random drug screens in Illinois.

On May 8, 2008, the father filed a motion to dismiss the paternal grandmother’s dependency petition on the basis that the juvenile court did not have subject-matter jurisdiction over the proceedings pursuant to the UCCJEA. The father alleged that Illinois was the “home state” of the child and that, therefore, the juvenile court did not have jurisdiction to enter an order regarding an initial custody determination of the child.

The paternal grandmother filed an objection to the father’s motion to dismiss, alleging that the juvenile court could properly exercise temporary emergency jurisdiction under the UCCJEA. The paternal grandmother alleged that the mother and the father had abandoned the child because, she said, after the father had sent the child on an airplane from Illinois to the paternal grandmother in Alabama, she had received no support from the mother or the father on behalf of the child. Further, the paternal grandmother alleged that the mother “had no income or assets[,] had moved to Colorado to ‘live with friends,’ and was on welfare .... ”

The paternal grandmother stated that the father had not visited with the child since February 26, 2008, had not supported the child, had not submitted evidence of random drug screens, and had not presented the juvenile court with a home evaluation as ordered. The paternal grandmother alleged that giving custody of the child to the father would pose a substantial danger to the child because the father had been charged, in May 2008, with felony possession of a controlled substance in Cook County, Illinois. Finally, in further support of her assertion that the juvenile court could properly exercise temporary emergency jurisdiction, the paternal grandmother averred that the father had a long history of drug abuse, “including intravenously inject[ing] Oxycontin, cocaine, marijuana, alcohol and Vicodin.” The paternal grandmother attached exhibits to substantiate her allegations of the father’s arrest and drug abuse, including the father’s hospital records and court records from Cook County, Illinois.

On June 3, 2008, the juvenile court entered an order that stated, in pertinent part:

“2. That the minor child was present in the State of Alabama, Shelby County on the date the [dependency] petition was filed and was therefore subject to the emergency jurisdiction of this Court.
“8. That, pursuant to the [UCCJEA], the proper state of jurisdiction for this matter would be the ‘home state’ of the minor child[;] ... the ‘home state’ of the minor child is the state where the minor child resided for six (6) months next preceding the filing of the complaint. “4. As the home state of this child is the state of Illinois, pursuant to the [UCCJEA], the state of Illinois is the proper place of jurisdiction of this matter. The Court notes that, upon consideration of the Custody Affidavit filed by the [paternal grandmother], said child last resided in the state of Illinois for 6 months next preceding the filing of the petition herein.
“5. Pursuant to the provisions of the [UCCJEA] this Court would have jurisdiction over this child to enter an Order for the protection and welfare of the minor child pending Order of the home state. Therefore, it is the Order of this Court, having considered the argument and pleadings herein, that the minor child shall remain in the custody of [the paternal grandmother], pending further Order of this Court or a SUBSEQUENT Order of the appropriate Court in the state of Illinois.
“6. Pursuant to the [UCCJEA], this Court hereby notifies the Court of the home state that this Court is willing to exercise jurisdiction of this child in the event that the home state of the child chooses to relinquish jurisdiction pursuant to the provisions of the [UCCJEA].”

(Capitalization in original.)

On September 23, 2008, the juvenile court conducted a telephone conference with a judge from the circuit court of Cook County, Illinois (“the Illinois court”). The Illinois court entered an order relinquishing jurisdiction of the father’s custody petition “to the State of Alabama.” The order stated that all parties and their attorneys were present for the telephone conference, either in Alabama or in Illinois. The Illinois court also stated that the order was a final and appealable decision; there is no indication that the father appealed the order.

The juvenile court held a final hearing on January 29, 2009, regarding the paternal grandmother’s dependency petition; neither the father nor the mother appeared for the hearing. The juvenile court found the child dependent, and it awarded custody of the child to the paternal grandmother. The father timely appealed.

Because the father appeals only the juvenile court’s finding that it had proper subject-matter jurisdiction to hear the paternal grandmother’s dependency petition, we will not discuss the merits of the dependency petition.

“A court does not have the authority to act if that court lacks subject-matter jurisdiction.” J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004). “An order entered by a trial court without jurisdiction is a nullity.” Id. (citing Ex parte Norfolk S. Ry. Co., 816 So.2d 469, 472 (Ala.2001), citing in turn Ex parte Hornsby, 663 So.2d 966 (Ala.1995)). This court’s review of subject-matter jurisdiction is de novo. M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008).

Section 30-3B-201(a), Ala.Code 1975, provides “the exclusive jurisdictional basis for making a child custody determination by a court” in the State of Alabama. § 30-3B-201(b), Ala.Code 1975. Section 30-3B-201(a) states, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204[, Ala.Code 1975], a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala.Code 1975,] and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208

The UCCJEA defines the “home state” of a child as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” § 30-3B-102(7), Ala.Code 1975. According to the custody affidavit filed by the paternal grandmother, the child had only been in Shelby County for approximately two and one-half months before the commencement of the dependency action. The custody affidavit also showed that the child had been living in Illinois with the father and the mother for approximately six months before the child moved to Shelby County on June 1, 2007. Therefore, the juvenile court correctly found that Illinois was the child’s home state under the UCCJEA.

Although Illinois had proper jurisdiction over the initial custody determination of the child pursuant to § 30-3B-201(a)(1), the juvenile court found that it had temporary emergency jurisdiction pursuant to § 30-3B-204, which states in pertinent part:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.”

The UCCJEA defines “abandoned” in § 30-3B-102(l), Ala.Code 1975, as being “[l]eft without pro-vision for reasonable and necessary care or supervision.” The paternal grandmother produced evidence to the juvenile court indicating that the father had been arrested on drug charges in Illinois in May 2008 and that he had been admitted to a hospital in Illinois in August 2006 for “poly-drug dependence and detoxification.” Further, the mother had admitted to using prescription medication without a prescription and had tested positive for marijuana on the date of the first hearing. In addition, the mother admitted that she had moved from Illinois to Colorado to “live with friends” and that she had no income as of September 2007. Based on that evidence and the allegations in the paternal grandmother’s dependency petition that neither the mother nor the father had provided any support for the child, we conclude that the juvenile court properly exercised temporary emergency jurisdiction to protect the child until the Illinois court issued an order. See § 30-3B-204, Official Comment.

We reject the father’s argument that temporary emergency jurisdiction could not have been invoked by the juvenile court because the paternal grandmother did not specifically request it at the outset of the dependency proceeding. We also reject the father’s argument that the juvenile court’s exercise of temporary emergency jurisdiction was improper because the juvenile court did not explicitly state that it was exercising temporary emergency jurisdiction until after the filing of the father’s motion to dismiss. See Feria v. Soto, 990 So.2d 418 (Ala.Civ.App.2008) (when there was no indication that petitioner sought to have the court exercise temporary emergency jurisdiction in his initial custody petition, the trial court stated for the first time, in denying a motion to vacate the judgment, that it was exercising temporary emergency jurisdiction).

We conclude that the juvenile court properly exercised jurisdiction to make an initial custody determination of the child pursuant to § 30-3B-201(a)(3), Ala.Code 1975, because “[a]ll courts having jurisdiction under subdivision (1) or (2) [of § 30-3B-201(a) ] have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 ....” § 30-3B-201(a)(3). The record clearly demonstrates that the State of Illinois was the only state that could have properly exercised jurisdiction to make an initial custody determination regarding the child pursuant to § 30-3B-201(a)(l) or § 30-3B-201(a)(2). The record also demonstrates that the Illinois court relinquished jurisdiction “to the State of Alabama” and dismissed the father’s pending custody action in Cook County, Illinois.

The State of Illinois has adopted a version of the UCCJEA, 750 Ill. Comp. Stat. § 36/101 et seq. (2009), that is substantially similar to Alabama’s version of the UC-CJEA. Section 750 Ill. Comp. Stat. 36/206(b) (2009), states, in pertinent part:

“If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this Act does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.”

At the time the Illinois court dismissed the father’s custody petition and relinquished jurisdiction to the courts of Alabama, the juvenile court was properly exercising temporary emergency jurisdiction pursuant to § 30-3B-204, Ala.Code 1975. Because the Illinois court dismissed the father’s pending custody action and relinquished jurisdiction to the courts of Alabama, we must assume that the Illinois court agreed that Alabama was “the more appropriate forum to determine the custody of the child under Section 30-3B-207.”

We therefore conclude that the juvenile court had proper subject-matter jurisdiction, pursuant to § 80-3B-201(a)(3), to make an initial custody determination of the child; therefore the order of the juvenile court is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ„ concur.

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

      . The mother alleged that she had also been in Shelby County with the son from September 2006 through December 2006.

      . The order of the juvenile court dated September 13, 2007, contains a handwritten notation that states, "Father was served but did not appear.”

      . No transcript of this hearing, or the September 13, 2007, hearing, appears in the record on appeal.

      . The father was also charged with several violations of the Motor Vehicle Code of Illinois.

      . Apparently, the father had filed a custody action in Cook County, Illinois. No record of that action, including its filing date, appears in the record on appeal.

      . The juvenile court has certified the record as being adequate for appellate review. See Rule 28(A)(1)(a), Ala. R. Juv. P.

      . The Official Comment to § 30-3B-204 states that “a court may take jurisdiction to protect the child even though it can claim neither home state nor significant connection jurisdiction.” See § 30-3B-201(a)(l) and § 30-3B-201(a)(2).

      . This statute corresponds to Ala.Code 1975, § 30-3B-206(b).

      . Section 30-3B-207 states, in pertinent part:
      "(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court’s own motion, or request of another court.
      "(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this puipose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
      "(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
      "(2) The length of time the child has resided outside this state;
      "(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
      "(4) The relative financial circumstances of the parties;
      “(5) Any agreement of the parties as to which state should assume jurisdiction;
      "(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
      "(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
      "(8) The familiarity of the court of each state with the facts and issues in the pending litigation.”