Released for Publication January 20, 2015.
Appeal from Montgomery Circuit Court. (CV-11-900316), William A. Shasy, Trial Judge.
THOMPSON, Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ., concur.
THOMPSON, Presiding Judge.
DWOC, LLC (" DWOC" ), and TRX Alliance, Inc. (" TRX" ), have been before this court previously. In an earlier opinion, this court set forth the underlying history and facts as follows:
" DWOC, LLC ('DWOC'), filed a complaint against TRX Alliance, Inc. ('TRX'), alleging claims of breach of contract, fraud, intentional interference with contractual relations, and negligence. In its complaint, DWOC alleged that it is a tax-preparation business;
that it purchased and utilized tax-preparation software from TRX; and that, 'pursuant to the licensing agreement' for the tax-preparation software, it remitted tax filings it had prepared to TRX, which then forwarded those filings to the Internal Revenue Service ('IRS'). DWOC alleged that TRX was supposed to request that the IRS deposit the refunds from the tax filings DWOC had prepared into a banking account identified by DWOC, that DWOC would deduct its tax-preparation fees from those IRS refunds, and that DWOC would then remit the remainder of the refunds to the appropriate client taxpayers. However, according to DWOC, TRX failed to list DWOC's bank account in the filings it made with the IRS, and the IRS sent the clients' refunds directly to the clients, which deprived DWOC of the tax-preparation fees to which it was entitled for work it had performed on behalf of those clients. DWOC sought an award of compensatory and punitive damages.
" In response to DWOC's complaint, TRX filed a motion to dismiss based on improper venue. TRX argued in its motion to dismiss that the licensing agreement for the tax-preparation software purchased by DWOC contained a provision specifying that Tennessee law applied to any dispute arising between the parties [to that contract] as a result of the purchase of the software and that that agreement also contained a forum-selection clause requiring any legal action to be brought in 'the courts located in Nashville, Tennessee.' In support of its motion to dismiss, TRX submitted as an exhibit a copy of a document titled 'TRX Pro1040 End-User Licensee Agreement' (hereinafter referred to as 'the software-licensing agreement'). The software-licensing agreement specifies that it is 'a legally binding contract between TRX Software Development, Inc. (" Licensor" ) and you.' The term 'you' in the software-licensing agreement TRX submitted in support of its motion to dismiss is not specifically defined in that document.
" DWOC filed a motion in opposition to TRX's motion to dismiss and a motion to strike the licensing-software agreement submitted in support of TRX's motion to dismiss, in which, DWOC alleged, in pertinent part, that TRX had failed to properly authenticate the software-licensing agreement upon which it had based its motion to dismiss. ...
" On July 20, 2011, TRX filed a brief in support of its motion to dismiss, and it supplemented its evidentiary submission to include an affidavit of Dustin Hughes, the general manager for TRX. In that affidavit, Hughes attempted to authenticate the software-licensing agreement ....
" On August 5, 2011, the trial court found that the forum-selection clause required that the claims be litigated in Tennessee, and it entered a judgment dismissing DWOC's claims without prejudice. DWOC filed a postjudgment motion in which it, among other things, moved the trial court to strike Hughes's affidavit. DWOC argued that Hughes's affidavit should be stricken because, it contended, the affidavit was not properly notarized. The postjudgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.; the trial court did not rule on the motion to ...