text:
    Terrance BINDON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00739-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.

      William E. Goodwin, Brookhaven, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On the night of August 3, 2000, Terrance Bindon was stopped by two Adams County Sheriffs Department officers for driving without headlights or taillights. Bindon got out of his vehicle, and the officers testified they smelled marijuana. One of the officers noticed marijuana seeds lying in the car, and he did a “pat-down” of Bindon to check for weapons. At that time, Bindon reached down and pulled something out of his pants and dropped the object into an opening in the trunk of his car. The officers ordered Bindon to retrieve the object, which he did, and the envelope proved to contain cocaine.

¶ 2. Bindon was later charged with possession of cocaine. After a trial in March 2002, a jury convicted him of the charge for which he was indicted, and he was subsequently sentenced as an habitual offender to serve sixteen years in prison without the possibility of parole.

¶ 3. Bindon appeals to this Court arguing that the verdict was against the overwhelming weight of the evidence. We review his brief and find no merit; thus, we affirm.

DISCUSSION

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 4. With his sole issue, Bindon argues that the jury’s verdict was against the overwhelming weight of the evidence, and we look to our familiar standard of review:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

Danner v. State, 748 So.2d 844(¶ 7) (Miss.Ct.App.1999). Bindon also argues in his analysis that the evidence was legally insufficient to support the jury’s verdict. Our standard of review concerning sufficiency of evidence states:

When reviewing the sufficiency of the evidence, this Court looks to all of the evidence before the jurors to determine whether a reasonable, hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. This Court will not reverse a trial judge’s denial of a motion for a new trial unless the verdict is so contrary to the weight of the evidence that, if it is allowed to stand, it would sanction an unconscionable injustice.

Williams v. State, 794 So.2d 181(¶ 7) (Miss.2001) (citations omitted).

¶ 5. Bindon’s debate with the jury verdict centers around the fact that the State failed to produce scientific evidence in the form of fingerprint matches, DNA tests, or other evidence to show the envelope retrieved from Bindon’s car was indeed his. Bindon argues a reasonable hypothetical juror could not have convicted him without this evidence; thus, he should be awarded a new trial.

¶ 6. We find the evidence in the case was sufficient to support the verdict. Upon stopping Bindon, Officer Chuck Mayfield stood back to the rear of the vehicle, but Officer Cliff Cox approached Bindon, who had stepped out of the car leaving his door open. Officer Cox testified that he smelled marijuana emanating from Bindon’s car when Bindon exited the vehicle and left his door ajar; Officer Cox then saw marijuana seeds in the car; Officer Cox conducted a patdown search of Bindon for weapons; Bindon, who was standing by the trunk of the car, reached into his pants during the patdown; and, upon Officer Cox’s demand to remove his hands from his pants, Bindon shoved an object into his trunk which was bowed up on either side apparently due to a previous wreck; Bindon then retrieved the object from the trunk upon Officer Cox’s request and gave the officers a white envelope and said, “You got me, here it is;” the envelope contained cocaine. Bindon did not put on witnesses or evidence in his defense, but he argues that fingerprint or DNA evidence should have been presented to show whether the envelope was indeed his. However, both officers testified as to Bin-don’s possession of the envelope and/or attempt to hide it in his trunk, thus obviating the need for further evidence of possession. We find the evidence sufficient to support the verdict and affirm the trial court.

¶ 7. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND ENHANCED SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: STUART, Justice. JOHNSTONE, Justice MOORE, Chief Justice BROWN, Justice STUART, Justice. LYONS, Justice

license: Public Domain

text:
    J.R. SESSIONS et al. v. Collier H. ESPY, Jr., and Espy & Metcalf, P.C.
    1010329.
    Supreme Court of Alabama.
    Oct. 4, 2002.
    Order Overruling Rehearing Feb. 14, 2003.

      William B. Jackson II, Mobile, for appellants.
    Wade H. Baxley of Ramsey, Baxley & McDougle, Dothan, for appellees.
   STUART, Justice.

J.R. Sessions and Emily Sessions, husband and wife, and their corporation, Sessions Feeds, Inc., appeal from a summary judgment entered in favor of the defendants Collier H. Espy, Jr., and Espy & Metcalf, P.C. (hereinafter sometimes collectively referred to as “Espy”), on the Sessionses and the corporation’s legal-malpractice claims. We affirm in part, reverse in part, and remand.

Background

From July 1992 until January 1994, J.R. Sessions and Emily Sessions negotiated with Manuel Patrick to purchase from Patrick the assets of an existing business known as Patrick’s Feeds, Inc. Neither the Sessionses nor Patrick was represented by legal counsel during those negotiations. The Sessionses obtained certain financial information from Patrick; the Sessionses then submitted this financial information to one or more accountants for review.

After an attorney drew up the necessary paperwork, the purchase was consummated on January 12, 1994. As a part of the agreement, J.R. Sessions and Emily Sessions were required to sign promissory notes in their individual capacities. During the negotiations, the Sessionses were forming a corporation, known as Sessions Feeds, Inc.; this corporation was formally incorporated on February 11, 1994, after the Sessionses had already acquired the assets of Patrick’s Feeds, Inc.

During its very first year, Sessions Feeds, Inc., did not perform as well as the Sessionses had expected. The Sessionses claim that they discovered gross exaggerations in the sales figures provided to them by Manuel Patrick; the Sessionses claim that, relying upon those exaggerated figures, the accountants had erroneously concluded that the business would be a profitable one for the Sessionses at the agreed-upon purchase price. The Sessionses claimed that they had been fraudulently induced to purchase the assets of Patrick’s Feeds, Inc., as a result of Patrick’s misrepresentations.

The Sessionses assert that they retained Collier Espy in early April 1995 to represent them individually in a fraudulent-inducement action against Manuel Patrick and Patrick’s Feeds, Inc. The Sessionses claim that Espy began conducting settlement negotiations with Patrick. The record, in fact, documents that on April 12, 1995, Espy corresponded with Manuel Patrick, stating in a letter, “Please be informed I have been retained by Mr. J.R. Sessions, as President of Sessions Feeds, Inc., to represent this corporation, and if necessary Mr. and Mrs. Sessions, individually, with regard to recently discovered inaccurate information on the financial and/or income statements provided by you.” The Sessionses claim that by late 1995 or early 1996, they had paid Espy $6,185 in fees, based on an hourly rate of $125.

The Sessionses also claim that in late 1995, Sessions Feeds, Inc., retained Espy to file a petition in bankruptcy pursuant to Chapter 11 but that the bankruptcy action “occurred solely incidental to a foreclosure in December 1995, which arose in part because the Sessions[es], followed the advice of Collier Espy, beginning in April of 1995, to ‘[abate] remittance of [any more] payments under the subject notes’ that had been executed, along with the fraudulent agreement, to purchase Patrick’s Feeds, Inc., on January 12,1994.”

Espy, however, disputes certain of those claims. He asserts that he never represented the Sessionses in their individual capacities but that he was retained by the Sessionses only in their representative capacities as shareholders and officers of Sessions Feeds, Inc. Espy claims that he was retained for the purpose of filing a Chapter 11 bankruptcy petition for Sessions Feeds, Inc. This Chapter 11 petition was later converted to a proceeding under Chapter 7. Espy also claims that he told the Sessionses, both before and after the Chapter 11 petition was converted to a Chapter 7 petition, that any action that might exist against Patrick and Patrick’s Feeds, Inc., or against any other individual or entity “would become an' asset of the Chapter 7 Trustee for administration and ultimate resolution.”

The Sessionses deny that they were ever told that their claim against Manuel Patrick and Patrick’s Feeds, Inc., would become an asset of the estate or that it would be controlled by the bankruptcy trustee. They allege that they believed at all times Espy was their lawyer and that he was pursuing their claims against Manuel Patrick and Patrick’s Feeds, Inc., on then-behalf.

Apparently, the grounds for the individual and the corporate malpractice claims against Espy differ. The Sessionses allege that Espy committed malpractice against the Sessionses in their individual capacities as a result of his failure to assert a fraudulent-inducement claim against Manuel Patrick and Patrick’s Feeds, Inc., before the expiration of the statute of limitations on that claim and his failure to advise the Sessionses as to the legal impact of certain acts and omissions by Espy. The malpractice claims asserted by the corporation are based upon the claim that Espy acted both as attorney for the debtor (i.e., the corporation) and as attorney for the bankruptcy trustee without advising the corporation of this conflict of interest; that Espy failed to fully investigate the claims of the corporation against Manuel Patrick and Patrick’s Feeds, Inc.; and that Espy failed to honor certain representations that he made to the debtor and to the debtor’s subsequent legal counsel.

The Record

The following is a time line of the events as documented in the record:

April 12, 1995 — Letter from Espy to Manuel Patrick, in which Espy states, “Please be informed I have been retained by Mr. J.R. Sessions, as President of Sessions Feeds, Inc., to represent this corporation, and if necessary Mr. and Mrs. Sessions, individually, with regard to recently discovered inaccurate information on the financial and/or income statements provided by you....”
April 19, 1995 — Letter from Espy to J.R. Sessions regarding Patrick’s possible defenses to the Sessionses’ claims; Espy’s second request for a retainer for his services.
August 15, 1995 — Letter from Espy to Patrick’s attorney regarding settlement negotiations that occurred during months of April and May 1995.
December 8, 1995 — Letter from attorney Joe C. Cassady to J.R. Sessions regarding notice of the Sessionses’ default under the note and mortgage executed on January 12,1994.
January 1, 1996 — Sessions Feeds, Inc., files a petition in bankruptcy under Chapter 11.
(Undated document) — Sessions Feeds, Inc., files with the bankruptcy court an application to employ Espy as legal counsel; J.R. Sessions, as president of Sessions Feeds, Inc., represents in this document that Espy was “not connected in any way with the creditors or any parties-in-interest.”
January 17, 1996 — Letter from Espy to Cassady notifying Patrick and Patrick’s Feeds, Inc., that an adversary proceeding against Patrick and Patrick’s Feeds, Inc., would be filed as part of Sessions Feeds, Inc.’s Chapter 11 proceeding. January 22, 1996 — Order entered by bankruptcy court authorizing Sessions Feeds, Inc., as debtor-in-possession, to employ Espy as its legal counsel; the order states that “the Court [is] satisfied that C.H. Espy, Jr., represents no interest adverse to said Sessions Feeds, Inc., as Debtor-in-Possession, herein, or to its Estate.”
January 26, 1996 — Letter from Espy to Cassady notifying Patrick and Patrick’s Feeds, Inc., that, because of adverse sales conditions, Sessions Feeds, Inc., will be closing doors for business and will be converting its Chapter 11 bankruptcy proceeding to a Chapter 7 proceeding.
April 19, 1996 — Sessions Feeds, Inc., sues Manuel Patrick and Patrick’s Feeds, Inc.
April 19, 1996 — Letter from Espy to manager of Purina Mills, in which Espy states, “Based upon my representation of Sessions Feeds, Inc. in a pending bankruptcy proceeding and thus my associated representation of Mr. and Mrs. J.R. Sessions.”
May 1, 1996 — Motion to convert Sessions Feeds, Inc.’s Chapter 11 proceeding to a Chapter 7 proceeding. September 3, 1996 — Bankruptcy trustee seeks to have Espy appointed as counsel for the trustee in the adversary proceeding filed on behalf of Sessions Feeds, Inc.
September 10, 1996 — Bankruptcy court approves trustee’s request to hire Espy as legal counsel for Chapter 7 bankruptcy trustee.
April 16, 1997 — Letter from Espy to Von G. Memory (new legal counsel for Manual Patrick and Patrick’s Feeds, Inc.) regarding settlement of adversary proceeding against Manuel Patrick and Patrick’s Feeds,- Inc.; Espy indicates that because of costs and attendant risks of litigation settlement might be possible; however, Espy indicates that J.R. Sessions is not inclined to agree to any settlement but that the bankruptcy trustee, not Mr. Sessions, has settlement authority over the adversary proceeding. May 20, 1997 — Letter from Espy to Von Memory, in which Espy states, “Since it appears I will need to take Mr. Patrick’s deposition along with Christa Boesen; and I assume you will want to take Mr. J.R. Sessions’ deposition, please provide me with dates.... ”
Séptember 15, 1997 — Letter from Espy to the Sessionses notifying them of his recommendation to the bankruptcy trustee of proposed settlement of adversary proceeding and reasons for his recommendation and notifying the Sessionses that a copy of a proposed settlement would be forthcoming.
September 22, 1997 — Stipulation of settlement of the adversary proceeding submitted to the bankruptcy court; objection to proposed settlement filed by the Sessionses’ new attorney, Michael Gamble.
November 3, 1997 — Hearing before the bankruptcy court regarding stipulation of settlement of adversary proceeding; Espy, as attorney for trustee, recommends that the settlement not go forward because the Sessionses have new legal counsel who will handle the adversary proceeding on a contingency basis and, if there is a recovery, will benefit debtor’s estate as well as Sessionses; the bankruptcy trustee agrees to follow Espy’s recommendation but the bankruptcy court approves the proposed settlement despite Espy’s recommendation; even though the bankruptcy judge questions why no one appeared on behalf of the Sessionses, Espy does not explain to the bankruptcy judge that he told the Sessionses and Gamble that neither the Sessionses nor Gamble needed to appear at the hearing.
November 13, 1997 — Order of the bankruptcy court approving stipulation of settlement over objections of the attorney for J.R. Sessions.
November 24, 1997 — Amended order of the bankruptcy court approving stipulation of settlement over objections of the attorney for J.R. Sessions.
December 12, 1997 — Letter from Espy addressed to “To Whom It May Concern” summarizing his representation of Sessions Feeds, Inc., in the bankruptcy proceeding; Espy states that he began •his representation of Sessions Feeds, Inc., in January 1996.
April 7, 1998 — Letter from attorney David G. Poston to J.R. Sessions regarding Poston’s belief that, after reviewing the transcript of the hearing before the bankruptcy court, the. Sessionses would not be successful on an appeal from the bankruptcy court’s order approving the settlement.
July 14, 1998 — Letter from attorney Michael J. Gamble to J.R. Sessions regarding summary of attempts to represent the Sessionses and Sessions Feeds, Inc.; states that no individual cause of action against Manual Patrick and Patrick’s Feeds, Inc., was possible because the statute of limitations had already run; states that at the time Gamble was retained, the corporation was already a debtor in bankruptcy and was involved in an adversary proceeding that the bankruptcy trustee proposed to settle; states that Espy agreed to recommend to the bankruptcy court and to the bankruptcy trustee that Gamble be allowed to-, represent the Sessionses in the adversary proceeding and that Espy agreed to recommend that the proposed settle-merit be withdrawn; states that Espy represented that neither Gamble nor the Sessionses needed to attend the bankruptcy court hearing on the proposed settlement; states that despite Esp/s assurances, the bankruptcy court approved the proposed settlement; Gamble also states that, after reviewing a transcript of the hearing, it appears that “Espy did not speak out to the court regarding our opinion of the plan, our confidence in securing a favorable outcome through litigation efforts and our expectation of handling the litigation on a contingency fee arrangement.”
September 18, 1999 — Complaint by J.R. Sessions, Emily Sessions, and Sessions Feeds, Inc., filed against Espy and Espy & Metcalf, P.C.
August 2, 2001 — Affidavit of Espy filed with trial court; Espy attests that his representation of Sessions Feeds, Inc., began in the fall of 1995.
August 24, 2001 — Letter from attorney William B. Jackson to the bankruptcy trustee Kenneth Jones, requesting that, if the Sessionses’ claims of legal malpractice against Espy are considered to be an asset of the Chapter 7 bankruptcy estate, the trustee officially abandon those claims so that the Sessionses may pursue them.
September 17, 2001 — Affidavit of attorney William M. Doyle, as an expert witness for the Sessionses, attesting that Espy failed to use that degree of care, skill, and diligence commonly possessed and exercised by attorneys in the local and national community in the following ways:
(1) by not filing an action on behalf of the Sessionses individually;
(2) by allowing the statute of limitations to expire on the Sessionses’ individual causes of action;
(3) by not advising the Sessionses that the statute of limitations had expired;
(4) by recommending that the bankruptcy trustee settle the adversary proceeding in a manner that was not in the best interests of the Sessionses individually and/or Sessions Feeds, Inc., without advising the Sessionses that there was an actual conflict of interest in his serving as counsel for the trustee and as counsel for the Sessionses;
(5) by not conducting sufficient discovery to have a proper basis on which to analyze the proposed settlement;
(6) by failing to advocate withdrawal of the settlement plan and a continuance of the hearing on the proposed settlement as he represented to the Sessionses and Gamble he would do;
(7) by not offering at the hearing the evidence necessary to establish the substance of the fraudulent misrepresentations and to establish the substantial compensatory damages suffered as a result;
(8) by failing to advise the court at the hearing on the proposed settlement that he also represented the Sessionses, whose interests were in actual conflict with those of the trustee;
(9) by advising the bankruptcy judge that the Sessionses and Gamble had been advised that the court intended to dispose of the matter at the hearing on the proposed settlement;
(10) by failing to advise the bankruptcy judge that he (Espy) had informed the Sessionses and Gamble that they would not need to be present at the hearing.
September 26, 2001 — Notation entered on the case action summary that a motion for a summary judgment filed by Espy and Espy & Metcalf, P.C., is granted; trial judge indicated no findings of fact and no conclusions of law. October 18, 2001 — Motion to reconsider filed by J.R. Sessions, Emily Sessions, and Sessions Feeds, Inc., or, alternatively, request for trial court to set out material facts it deems undisputed and the legal basis for its ruling.
October 28, 2001 — Notation entered on the case action summary that motion to reconsider is denied.
October 31, 2001 — The Sessionses and Sessions Feeds, Inc., file their notice of appeal to the Alabama Supreme Court.

Issues on Appeal

The Sessionses and Sessions Feeds, Inc., make the following arguments on appeal:

I. The trial court erred in entering a summary judgment for Espy and Espy & Metcalf, P.C., where the Sessionses produced substantial evidence of a legal-malpractice action under the Alabama Legal Services Act, Alabama Code 1975 § 6-5-570 et seq.
II. The trial court erred in entering a summary judgment for Espy and Espy & Metcalf, P.C., on the ground that the legal-malpractice claim of the corporation, Sessions Feeds, Inc., was the property, or an asset, of its Chapter 7 bankruptcy estate.

Standard of Review

“We review the trial court’s entry of a summary judgment de novo, and our standard of review is well settled.

“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” and whether the movant was “entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmov-ant to present substantial evidence creating such an issue. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Our review is further subject to the caveat that this Court must review the record in a fight most favorable to the nonmovant and must resolve all reasonable doubts against the movant.’ ”

Hollingsworth v. Rainbow City, 826. So.2d 787, 789 (Ala.2001), quoting Hobson v. American Cast Iron Pipe Co., 690 So .2d 341, 344 (Ala.1997) (citations omitted).

' Discussion

I. Whether the Sessionses produced substantial evidence of legal malpractice as required under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Alabama Code 1975.

On September 13, 1999, J.R. Sessions, Emily Sessions, and Sessions Feeds, Inc., filed a five-count complaint against Espy and his law firm, Espy & Metcalf, P.C. The complaint alleged (1) a breach of a legal duty (this count presumably brought under the common law); (2) a breach of a legal duty (this count brought under the Alabama Legal Services Liability Act (“ALSLA”), § 6-5-570' et seq., Ala. Code 1975); (3) misrepresentation; (4) suppression; and (5) negligence. Each claim was alleged to have arisen out of an attorney-client relationship between the Sessionses and Sessions Feeds, Inc., on the one hand, and Espy and Espy & Met-calf, P.C., on the other.

However, based on the allegations of the complaint, the Sessionses and Sessions Feeds, Inc., are entitled to assert only a claim under the ALSLA. The ALSLA provides:

“There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.”

§ 6-5-573, Ala.Code 1975. The term “legal service provider” is defined to mean:

“Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships .... ”

§ 6-5-572(2), Ala.Code 1975. The term “legal service liability action” is defined as:

“Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider’s violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

§ 6-5-572(1), Ala.Code 1975.

From these Code sections, it is clear that the ALSLA applies to all actions against “legal service providers” alleging a breach of their duties in providing legal services. The duty required under the ALSLA may be one undertaken by contract or gratuitously. Cunningham v. Langston, Frazer, Sweet & Freese, 727 So.2d 800 (Ala.1999); Peterson v. Anderson, 719 So.2d 216 (Ala.1998). Thus, we review the trial court’s summary-judgment order under the standards applicable to a legal service liability action.

The trial court’s order entering a summary judgment for Espy and Espy & Met-calf, P.C., contained no findings of fact and no conclusions of law. Therefore, we do not know the exact basis for the trial court’s ruling in favor of Espy. However, Espy argued before the trial court that no attorney-client relationship existed between him and the Sessionses in their individual capacities and that the bankruptcy trustee controlled the malpractice claim of the debtor corporation, Sessions Feeds, Inc. On appeal, the Sessionses and Sessions Feeds, Inc., challenge these arguments.

Espy argues that he represented only Sessions Feeds, Inc., in connection with its bankruptcy action; Espy argues that no attorney-client relationship existed between him and the Sessionses in their individual capacities. If Espy is correct that he did not undertake to represent the Sessionses in their individual capacities, he owed them no duty and he therefore cannot be liable for breaching that duty.

However, the evidence contained in the record is in conflict as to whether an attorney-client relationship existed between Espy and Espy & Metcalf, P.C., on the one hand, and J.R. Sessions and Emily Sessions, in their individual capacities, on the other. Both sides filed affidavits with the trial court. Espy, in his affidavit, denies ever representing the Sessionses in their individual capacities. However, the Sessionses state in their affidavit:

“... Collier H. Espy, Jr., and Espy & Metcalf, P.C., were retained, in very early April, 1995, to represent us in connection with a civil case of fraud in the inducement which we had against Manuel Patrick, Patrick’s Feeds, Inc., et al.
“... Our first meeting with Mr. Espy about our civil case of fraud was on April 5, 1995, which is the date that he was retained and undertook our legal representation.
“From the outset, Collier Espy affirmatively led us to believe that he was representing all of the Plaintiffs herein, Sessions Feeds, Inc., as well as J.R. and Emily Sue Sessions, individually. At no time did the Defendant, Collier H. Espy, Jr., ever advise either of us that he was not representing us in our individual capacities.”

Additionally, some of the correspondence exchanged between Espy and the Ses-sionses and between Espy and third parties raises a question whether Espy represented the Sessionses in their individual capacities or whether Espy represented the Sessionses merely by association in their capacities as shareholders of Sessions Feeds, Inc.

Additionally, the affidavits contain conflicting statements as to the date Espy began his representation in the underlying matter. In their affidavit, the Sessionses allege that they retained Espy in April 1995 to represent them in their individual capacities. However, in his affidavit, Espy asserted that he did not undertake his representation of Sessions Feeds, Inc., until the fall of 1995. If Espy’s assertion is true — that he did not represent Sessions Feeds, Inc., until the fall of 1995 and that he never represented J.R. Sessions and Emily Sessions in their individual capacities — then whom did Espy represent in April 1995, when he was corresponding with Manuel Patrick?

As evidence indicating that Espy further breached the duty he owed them as their lawyer, the Sessionses further point to the fact that Espy failed to file an action on their behalf before the statute of limitations expired on their claims. They also claim that Espy then failed to advise them that the statute of limitations on that claim had expired. However, Espy asserts that he did not file an action on their behalf and he did not advise them that the statute of limitations had expired on their individual claims against Manuel Patrick and Patrick’s Feeds, Inc., because he did not represent the Sessionses in their individual capacities.

Again, the evidence before this Court is in dispute. The only parties who have access to the truth have presented two versions of this story; for that reason, we conclude that a question of material fact is presented. The trial court improperly entered a summary judgment in favor of Espy and Espy & Metcalf, P.C.

II. Whether the legal-malpractice claim of Sessions Feeds, Inc., was the property of, or an asset of, the bankruptcy estate, and, thus, could not be maintained without the permission or participation of the bankruptcy trustee.

Although the trial court did not identify its specific reasons for granting Espy & Metcalf, P.C., and Espy’s summary-judgment motion, one of the arguments presented in favor of the motion was that the corporation’s malpractice claim was an asset of the bankruptcy debtor and, therefore, the claim could not be brought without the permission or participation of the bankruptcy trustee. Sessions Feeds, Inc., disputes this claim and asserts that the trial court improperly granted Espy & Metcalf, P.C., and Espy’s motion as to the corporation’s claim.

Although not specifically identified in the complaint, the bases for the corporation’s malpractice claim are apparently identified in the September 17, 2001, affidavit of William Doyle, an attorney who testified as an expert witness for the Ses-sionses. Doyle testified that Espy failed to use that degree of care, skill, and diligence commonly possessed and exercised by attorneys in the local and national community. Doyle based his conclusion on the following factors:

(1) Espy failed to file a complaint on behalf of the Sessionses individually;
(2) Espy allowed the statute of limitations to expire on the Sessionses’ individual causes of action;
(3) Espy did not advise the Sessionses that the statute of limitations had expired on their individual claims;
(4) Espy recommended that the bankruptcy trustee settle the adversary proceeding in a manner that was not in the best interests of the Sessionses individually and/or Sessions Feeds, Inc., without advising the Sessionses that there was an actual conflict of interest between his loyalties as counsel for the trustee and as counsel for them;
(5) Espy did not conduct sufficient discovery to have a proper basis with which to analyze the proposed settlement;
(6) Espy failed to advocate withdrawal of the settlement plan and a continuance of the hearing on the proposed settlement as he represented to J.R. Sessions and attorney Gamble he would do;
(7) Espy did not offer at the hearing the evidence necessary to establish the substance of the fraudulent misrepresentations and to establish the substantial compensatory damages suffered as a result;
(8) Espy failed to advise the court at the hearing on the proposed settlement that he also represented the Sessionses, whose interests were in actual conflict with those of the trustee;
(9) Espy advised the bankruptcy judge that the Sessionses and Gamble had been advised that the court intended to dispose of the matter at the hearing on the proposed settlement;
(10) Espy failed to advise the bankruptcy judge that he had informed the Ses-sionses and Gamble that they would not need to be present at the hearing.

Claims (1) through (3) above relate only to the Sessionses in their individual capacities. Claims (4) through (10), however, purport to state malpractice claims related to Espy’s representation of either the corporation alone or of the corporation and the Sessionses individually. Thus, we must determine whether claims (4) through (10) are assets of the debtor’s estate and therefore require the trustee’s permission or participation to go forward.

In In re Alvarez, 224 F.3d 1273 (11th Cir.2000), the United States Court of Appeals for the Eleventh Circuit addressed this identical issue — whether a bankruptcy debtor’s state-court legal-malpractice claim against his bankruptcy counsel was viable without the bankruptcy trustee’s participation. The Eleventh Circuit concluded that under both Florida malpractice law and federal bankruptcy law, the debtor could not pursue his malpractice claim without the participation of the trustee.

The Alvarez court noted that under Florida law, a cause of action for legal malpractice consisted of three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence, which proximately caused a loss to the client. 224 F.3d at 1276. The Alvarez court found that all three elements existed or came into existence at the moment the debtor’s bankruptcy petition was filed. Further, the Alvarez court noted that a bankruptcy estate was immediately created upon the filing of the petition and that a bankruptcy debtor loses control of the assets and property of his or her estate at the moment the bankruptcy petition is filed. Because the malpractice claim in Alvarez existed when the bankruptcy petition was filed, the Eleventh Circuit held that the claim was included in the “property of the estate.” Thus, the Eleventh Circuit concluded that the bankruptcy trustee controlled the malpractice claim.

The Alvarez court went on to analyze this issue under federal bankruptcy law and reached the same conclusion. The Eleventh Circuit looked to the United States Supreme Court case of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), in which the Court considered whether the debtors’ claim for loss-carryback tax refunds were the property of the debtors’ bankruptcy estates or the property of the individual debtors. The Segal Court concluded that the loss-carryback refund claim was “sufficiently rooted in the pre-bankruptcy past ... that [they] should be regarded as ‘property’ under § 70a(5) [of the Bankruptcy Act].” 382 U.S. at 380, 86 S.Ct. 511.

The Alvarez court stated:

“Applying the rationale of Segal to the instant case, we conclude that Alvarez’s legal malpractice cause of action is also sufficiently rooted in his pre-bankruptcy past that it should be considered property of Alvarez as of the commencement of his bankruptcy case, and thus property of his estate. Alvarez established an attorney-client relationship with [the law firm] prior to his filing for bankruptcy, and this cause of action arises directly out of Alvarez’s interactions with the firm prior to filing — -ie. Alvarez’s instructions to [the law firm] to file Chapter 11 and the firm’s alleged disregard of those instructions — ie. the preparation and filing instead of a Chapter 7 petition. Simultaneous with the filing, Alvarez suffered significant harm from the firm’s alleged negligence, ie. the loss of control of assets. The claim in the instant case is even more firmly ‘rooted in the pre-bankruptcy past’ than the claim in Segal. See also [In re] Tomaiolo, 205 B.R. [10] at 15 [Bankr. D. Mass.1997] (concluding that debtor’s legal malpractice claims, including claim concerning services in the preparation of documents filed with the bankruptcy petition, were sufficiently rooted in the pre-bankruptcy past to be includible in bankruptcy estate).”

Alvarez, 224 F.3d at 1279. For these reasons, the Alvarez court concluded:

“The bankruptcy trustee is the legal representative of the bankruptcy estate, with capacity to sue and be sued. See 11 U.S.C. § 323. Thus, as we have concluded that the legal malpractice cause of action at issue is property of Alvarez’s bankruptcy estate, and as there is no indication in the record before us that the trustee has abandoned this claim, Alvarez may not maintain this suit without participation by the trustee.”

224 F.3d at 1279-80.

Applying Alabama legal-malpractice law and federal bankruptcy law to the facts of this case as established in the record, we conclude that the legal-malpractice claim asserted by Sessions Feeds, Inc., against Espy is properly considered the “property” of the debtor’s estate. First, the corporation’s malpractice claim is primarily premised upon a claim that Espy failed to conduct discovery and to investigate thoroughly the merits of the corporation’s claim against Manuel Patrick and Patrick’s Feeds, Inc., before recommending the settlement of the adversary proceeding. However, whether we view this alleged failure as occurring before the filing of the Chapter 7 petition, and thus being included in the property of the bankruptcy estate, or after the filing of the Chapter 7 petition, and, therefore, being under the control of the bankruptcy trustee, Sessions Feeds, Inc., lost control of the adversary proceeding on May 1, 1996 — at the moment its Chapter 7 bankruptcy estate was created. Thus, any malpractice claim Sessions Feeds, Inc., had against Espy and Espy & Metcalf, P.C., arising out of an alleged failure to conduct discovery or to fully investigate was transferred to the control of the bankruptcy trustee when the Chapter 7 petition was filed.

Moreover, the transcript of the hearing before the bankruptcy court regarding the proposed settlement reveals that Espy did not recommend the proposed settlement to the bankruptcy court; he expressly withdrew his recommendation of the proposed settlement. At the November 3, 1997, hearing before the bankruptcy court, Espy informed the bankruptcy judge that Michael Gamble was now representing Sessions Feeds, Inc., on a contingency basis, that Espy believed it was in the best interest of Sessions Feeds, Inc., and the bankruptcy estate to allow the adversary proceeding to go forward and that he no longer supported the proposed settlement of that adversary proceeding. However, the bankruptcy judge did not accept Espy’s recommendation. Thus, the record reveals absolutely no evidence to support a malpractice claim against Espy and Espy & Metcalf, P.C., based upon Espy’s alleged recommendation of the proposed settlement.

Additionally, in the application by the trustee for authority to employ an attorney to represent the trustee in the adversary proceeding, the bankruptcy court was made aware of Espy’s prior representation of Sessions Feeds, Inc., in connection with the filing of the Chapter 11 bankruptcy petition and the fifing of the adversary proceeding. In that same motion, the trustee represented to the bankruptcy court that Espy represented no interest “adverse to the Trustee or the Estate in the matters upon which he is to be engaged for your Applicant. Therefore, it is respectfully suggested this employment should be in the best interests of the Estate.” The bankruptcy court approved this request; we must assume that it determined no conflict of interest existed. Moreover, if J.R. Sessions, Emily Sessions, or Sessions Feeds, Inc., wished to object to Espy’s representation of the bankruptcy trustee, they should have done so on the date Espy was appointed to represent the trustee.

Finally, we conclude that, as was the case in Segal and Alvarez, the corporation’s malpractice claims are sufficiently rooted in its prebankruptcy relationship with Espy so that those claims should be considered to have been the property of the debtor’s estate at the time it filed its bankruptcy petition. Sessions Feeds, Inc., established an attorney-client relationship with Espy prior to filing for bankruptcy, and we conclude that the malpractice allegations in this case (failure to conduct discovery and to investigate the merits of claims against Manuel Patrick and Patrick’s Feeds, Inc., and the failure to remain loyal to Sessions Feeds, Inc.) are sufficiently related to those interactions to be considered an asset or property of the bankruptcy estate as of the filing of the bankruptcy petitions.

Thus, the bankruptcy trustee is a necessary party to the malpractice claims alleged by Sessions Feeds, Inc., against Espy and Espy & Metcalf, P.C. Because the trustee has not abandoned those claims and is a not a participant in this action, the trial court properly entered a summary judgment in favor of Espy and Espy & Metcalf, P.C., as to the claims of Sessions Feeds, Inc., against them.

Conclusion

We conclude that the malpractice claims of Sessions Feeds, Inc., are controlled by the bankruptcy trustee, and that the trustee has not indicated an intent to abandon those claims. We affirm that part of the trial court’s summary judgment in favor of Espy and Espy & Metcalf, P.C., as to the corporation’s malpractice claims. As to the Sessionses’ individual claims of legal malpractice, we find sufficient evidence of genuine issues of material fact to withstand a motion for summary judgment. We reverse that portion of the trial court’s summary judgment in favor of Espy and Espy & Metcalf, P.C., on the Sessionses’ individual malpractice claims. We remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ„ concur.

JOHNSTONE, J., concurs in part and concurs in the result in part.

MOORE, C.J., and BROWN, J., concur in part and dissent in part.

JOHNSTONE, Justice

(concurring in part and concurring in the result in part).

I concur in the main opinion insofar as it reverses the summary judgment entered against the individual Sessions plaintiffs. I concur in the result of the main opinion in affirming the summary judgment entered against Sessions Feeds, Inc.

I respectfully disagree with that part of the rationale for the affirmance to the effect that Espy’s withdrawing his support of the settlement of the adversary proceeding in the bankruptcy court absolved him of any liability for his already having recommended the settlement to the bankruptcy trustee, having entered the settlement stipulation, and having submitted it to the bankruptcy court. (See the September 15, 1997, and September 22, 1997, items in the chronology in the main opinion, and see items (4), (5), and (7) of the Doyle affidavit quoted in the main opinion.) The record supports the inference that, by the time Espy withdrew his support of the settlement, the bankruptcy court already had the bit in its teeth. I agree with the main opinion, however, in its reasoning that Sessions Feeds, Inc., was powerless to pursue the malpractice claim against the defendants without the participation of the Chapter 7 bankruptcy trustee or the permission of the bankruptcy court.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur with the majority’s decision to affirm the trial court’s summary judgment for Collier H. Espy and Espy & Metcalf, P.C., insofar as it relates to the malpractice claims alleged by Session Feeds, Inc. I respectfully dissent from the majority’s decision to reverse the summary judgment insofar as it relates to the malpractice claims asserted by J.R. Sessions and Emily Sessions in their individual capacities.

BROWN, Justice

(concurring in part and dissenting in part).

I concur with the majority’s decision to affirm the summary judgment in favor of Collier H. Espy, Jr. (“Espy”), and Espy & Metcalf, P.C., on the legal-malpractice claims asserted by Sessions Feeds, Inc. However, I respectfully dissent from the portion of the majority’s opinion that reverses the summary judgment in favor of Espy and Espy & Metcalf, P.C., on J.R. and Emily Sessions’s individual malpractice claims.

On September 10, 1996, the bankruptcy court approved the bankruptcy trustee’s application to employ Espy as attorney for the trustee. 11 U.S.C. § 327(a) and (e) allow a bankruptcy trustee to employ an attorney who has represented the debtor only “if such attorney does not represent ... any interest adverse to the debtor or to the estate” (emphasis added).

By approving the appointment of Espy to represent the bankruptcy trustee, the bankruptcy court necessarily determined that Espy did not represent the Sessions-es, who, as equity holders of the debtor corporation and as personal guarantors of notes executed for the acquisition of Patrick’s Feeds, Inc., obviously possessed interests that were inherently adverse to the estate.

On Application for Rehearing

STUART, Justice.

APPLICATION OVERRULED.

MOORE, C.J., and HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

In its opinion released on October 4, 2002, this Court affirmed the summary judgment entered in favor of Collier H. Espy, Jr., on legal-malpractice claims brought by former client Sessions Feeds, Inc., on the ground that the bankruptcy trustee of Sessions Feeds was a necessary party to any such claim. Sessions Feeds asserted legal-malpractice claims against Espy based on Espy’s acting as the attorney both for the bankruptcy trustee and for Sessions Feeds in recommending that Sessions Feeds settle a claim it had asserted against third parties (“the adversary proceeding”) without conducting sufficient discovery and without advising Sessions Feeds of the existence of the conflict of interest.

The adversary proceeding was filed on April 19, 1996, after the Chapter 11 bankruptcy proceeding had been instituted, and 34 days later, on May 23, 1996, the bankruptcy proceeding was converted to a Chapter 7 proceeding. On September 15, 1997, Espy notified the Sessionses that he had recommended to the bankruptcy trustee that the adversary proceeding should be settled. A theoretical basis exists for the conclusion that the alleged wrongful conduct of Espy with regard to recommending a settlement when there has been inadequate discovery predated as well as followed the conversion of the bankruptcy proceeding from Chapter 11 to Chapter 7. Consequently, this Court’s rebanee in its October 4, 2002, opinion on In re Alvarez, 224 F.Bd 1273 (11th Cir.2000), was not misplaced.

Espy subsequently withdrew his support for the settlement, but the bankruptcy court enforced the settlement anyway. Our October 4, 2002, opinion absolved Espy of responsibility because he withdrew his support for the settlement. On further reflection, I am persuaded that Justice Johnstone was correct in disagreeing with that portion of our opinion holding that Espy’s withdrawal of support for the settlement absolved him of any habihty. If I were today voting for the first time, I would concur in the result as to that portion of the opinion, and my vote would be concurring in part and concurring in the result in part.

On application for rehearing, Sessions Feeds, citing “due process of law,” urges us for the first time to stay the proceedings in the legal-malpractice action so as to allow it to either obtain leave of the bankruptcy court to proceed or to obtain formal abandonment of the claim by the bankruptcy trustee. While the harshness of the result reached upon resolution of arcane questions of bankruptcy law is troublesome, especially in view of the fact that the principal case rebed upon in our October 4, 2002, opinion — In re Alvarez — -was not decided until almost a year after the commencement of the legal-malpractice action here, I am not persuaded that we should grant a stay. Whether any relief from this judgment in favor of Espy is appropriate pursuant to Rule 60, Ala. R. Civ. P., based upon subsequent proceedings in the bankruptcy court should be a matter for further proceedings in the trial court.

      . The Sessionses also asserted on appeal that the trial court erred in entering a summary judgment for Espy and Espy & Metcalf, P.C., on the ground that the Sessionses’ legal-malpractice claim was barred by the applicable statute of limitations. However, we do not know the basis for the trial court’s summary judgment; Espy did not assert the statute of limitations as an affirmative defense and Espy did not argue the statute of limitations before the trial court in his motion for a summary judgment. For these reasons, and because of our disposition of this case, we pretermit any discussion of this issue.

      . The record does not contain a retainer agreement or a contract of employment between Espy and the Sessionses.

      . For example, in a letter dated April 12, 1995, Espy stated: "I have been retained to represent this corporation, and if necessary Mr. and Mrs. Sessions, individually.''


author: PER CURIAM. SEE, Justice WOODALL, Justice PER CURIAM.

text:
    Walter LEONARD, Jr., and Evalina Leonard v. TERMINIX INTERNATIONAL COMPANY, L.P., et al.
    1010555.
    Supreme Court of Alabama.
    Oct. 18, 2002.
    Opinion on Denial of Rehearing Feb. 7, 2003.

      J. Michael Rediker, Patricia C. Diak, and Michael C. Skotnicki of Haskell, Slaughter, Young & Rediker, L.L.C., Birmingham, for appellants.
    John R. Chiles, Wilson F. Green, and Scott A. Boykin of Burr & Forman, L.L.P., Birmingham, for appellees.
    W. Pemble Delashmet and J. Robert Turnipseed of Pierce, Ledyard, Latta, Wasden & Bowron, P.C., Mobile; and Joa-na S. Ellis of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for ami-cus curiae Alabama Defense Lawyers Association, in support of the application for rehearing.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Automobile Dealers Association of Alabama; Matthew C. McDonald and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amici curiae Alabama Civil Justice Reform Committee, Alabama Retail Association, and The Business Council of Alabama; and H. Hampton Boles and Michael L. Edwards of Balch & Bingham, L.L.P., Birmingham, for amici curiae Alabama Bankers Association, Alabama Civil Justice Reform Committee, Alabama Retail Association, Automobile Dealers Association of Alabama, and The Business Council of Alabama, in support of the application for rehearing.
    J. Mark Englehart of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for amici curiae Trial Lawyers for Public Justice, AARP, and the National Association of Consumer Advocates, in opposition to the application for rehearing.
    Steven P. Gregory of Dice & Gregory, L.L.C., Tuscaloosa, for amici curiae Alabama Arise and Alabama Watch, in opposition to the application for rehearing.
    E.J. “Mac” McArthur, Montgomery, for amicus curiae Alabama State Employees Association, in opposition to the application for rehearing.
    David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, Mobile; and Barry A. Ragsdale of Ivey & Rags-dale, Birmingham, for amicus curiae Alabama Trial Lawyers Association, in opposition to the application for rehearing.
   PER CURIAM.

Walter Leonard, Jr., and Evalina Leonard, representatives in this putative class action against Terminix International Company, L.P.; David L. Myers; Termi-nix International, Inc.; TSSGP Limited Partnership; Service Master Incorporated of Delaware; Service Master Consumer Services, L.P.; Service Master Company, L.P.; and TSSGP Management Corp. (hereinafter referred to collectively as “Terminix”), appeal from an order compelling arbitration of the dispute. We reverse and remand.

The Leonards became involved with Terminix in 1994, when they purchased a house. With that purchase, they also acquired the termite bond the seller had with Terminix. The real-estate transaction closed on August 19,1994.

Within two months of the closing, the Leonards received through the mail a “Termite Protection Plan” (“the Plan”). The Plan provided, in pertinent part:

“5. DISCLAIMER.
“D. TERMINIX DISCLAIMS ANY LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THE GUARANTEES STATED IN THIS AGREEMENT ARE GIVEN IN LIEU OF ANY OTHER GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
“9. ARBITRATION. The Purchaser and Terminix agree that any controversy or claim between them arising out of or relating to this agreement shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration rules then in force of the American Arbitration Association. The decision of the arbitrator shall be a final and binding resolution of the disagreement which may be entered as a judgment by any court of competent jurisdiction. Neither party shall sue the other where the basis of the suit is this agreement other than for enforcement of the arbitrator’s decision. In no event shall either party be liable to the other for indirect, special or consequential damages or loss of anticipated profits.”

(Capitalization in original.)

The Plan provided for an annual renewal at the rate of $62 per year. Although the Plan was not signed by the Leonards, it designated “Walter Leonard” as the purchaser, and, at the top of the first page, stated: “TRANSFER TO NEW OWNER: 8/94.” It also provided that “Terminix [would] inspect the identified property at any time the Purchaser requested] it or if Terminix believe[d] it necessary.” The Leonards paid the renewal fees in 1995, 1996, and 1997.

In June 1996, the Leonards received through the mail a “Terminix Termite Guarantee” (“the Guarantee”), which purported to summarize the terms of the Plan. Specifically, it stated that Terminix would “[r]einspect the identified property at any time the purchaser requested] it or if Terminix believe[d] it [was] necessary.” It also stated: “The Plan provides for arbitration of any controversy or claim arising out of or reflating to the Plan.”

Also in 1996, Evalina Leonard telephoned Terminix to request a reinspection. At another time, when Terminix sales representatives were in the Leonards’ neighborhood soliciting business, they asked Evalina if she would do business with Ter-minix. She told the representatives that she already had a contract with Terminix. However, between 1994 and 1997, Termi-nix had no occasion to repair or re-treat the Leonards’ house. Thus, at all relevant times, Terminix applied no termiticide or chemicals to the premises.

Meanwhile, Terminix was engaged in a dispute with the Alabama Department of Agriculture and Industries (“the Department”). In that connection, the Department charged Terminix with violating Ala. Code 1975, § 2-28-9, which provides, in pertinent part:

“Every person engaged in subterranean termite eradication and control work shall make an annual inspection of each job done during the term of the contract and shall report to the building owner in each instance as to whether or not there has been a reinfestation of subterranean termites. If a contract for termite eradication work provides for inspections of such work at intervals of less than one year, such inspections shall be made as required by the terms of the contract, and failure or refusal to make such required inspections or any retreatment or other related work as required by a contract shall constitute a valid and sufficient reason for revocation of the permit.”

(Emphasis added.) More specifically, Ter-minix was charged with “[flailure to perform annual inspections on properties under subterranean termite contract for the year of 1995 and January, February and March of 1996.” Ultimately, Terminix agreed to pay $1,200 to settle the dispute with the Department. As part of the settlement, Terminix was required to conduct “annual inspections of all properties under [its] subterranean termite contract[s].”

On May 6, 1997, the Leonards, “on behalf of themselves and all others similarly situated,” filed a six-count complaint against Terminix. Count one was styled “Civil Tort for Criminal Conduct and Action for Statutory Penalties, Qui Tam.” The essence of the complaint, as contained in count one, is that Terminix owed a statutory duty to all its customers to conduct annual inspections, see § 2-28-9, and that Terminix had systematically failed to do so. The plaintiffs further alleged that the violation of § 2-28-9 is a crime, as defined in Ala.Code 1975, § 2-28-ll(a):

“(a) Penalties. Any person who engages in professional work or services as defined in this chapter or any person who solicits such work through advertising or in any other manner without having a permit as required by said chapter or any person who violates any of the provisions or requirements of this chapter or any rules and regulations adopted and promulgated as authorized under said chapter by failure to comply with any of the requirements or rules and regulations of said chapter shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $25.00 nor more than $500.00 and, within the discretion of the court, may also be imprisoned for a period not to exceed six months.”

Specifically, count one alleged:

“44. Ala.Code § 2-28-9 requires that every person engaged in subterranean termite eradication and control work shall make an annual inspection of each job done diming the term of guarantee or contract and shall report to the building owner in each instance as to whether or not there has been a reinfestation of subterranean termites, and this statute was enacted for the protection of the welfare of the consumers and public of the State of Alabama. Plaintiffs are within the class of persons that Ala.Code § 2-28-9 was enacted to protect. Pursuant to Ala.Code § 2-28-9, defendants owed a duty to the plaintiffs to make adequate annual inspections and reports to the plaintiffs.
“45. Ala.Code § 2-28-11 makes it a criminal offense to fail to make annual inspections and to fail to report to the building owner in each instance as to whether or not there has been a reinfes-tation of subterranean termites.
“46. Defendants intentionally, wantonly or recklessly, or negligently failed to make adequate annual inspections and reports as required by law, and this failure constitutes a criminal act.
“47. Defendants’ intentional, wanton or reckless, or negligent failure to make adequate annual inspections and reports and their violation of Ala.Code § 2-28-9 has proximately caused injury to the plaintiffs.
“48. Plaintiffs have the right to bring this claim pursuant to Hardie-Tynes Manufacturing Co. v. Cruse, 189 Ala. 66, 66 So. 657 (1914) (holding that every criminal act which injures the person or property of another is also a civil tort, redressable by the courts), and its progeny.
“49. Plaintiffs further have the right to bring this claim pursuant to Ala.Code § 6-5-50 (Alabama’s qui tam statute) on behalf of themselves and the counties in which the above-described violations have occurred because a penalty is imposed by statute which does not provide a mode for recovery but for which the common law does permit a recovery.”

The complaint sought, among other things, rescission of the plaintiffs’ contracts with Terminix and restitution of amounts paid Terminix under the contracts.

On June 27, 1997, Terminix International Company, L.P., moved to compel arbitration of the action against the defendants. Eventually, all the Terminix defendants joined in a motion to compel arbitration. On October 25, 2001, the trial court entered an order compelling arbitration. The court held, among other things, that the Leonards and Terminix were parties to a valid, enforceable agreement to arbitrate a dispute that substantially affected interstate commerce. From that order, the Leonards appealed.

On appeal, they present three arguments. The Leonards first argue that their contract with Terminix does not contain an arbitration clause. Second, they insist that the transaction did not have a nexus with interstate commerce sufficient to render the arbitration clause enforceable, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Third, they contend that the arbitration clause is unconscionable. Assuming, without deciding, that there is no merit in the Leonards’ first two grounds for reversal, we agree with the Leonards that the arbitration clause is unconscionable, and, therefore, unenforceable.

I. Unconscionability

The Leonards argue that the arbitration clause is unconscionable and therefore unenforceable, because, they contend, the ar-bitral forum is neither accessible nor adequate under the facts of this case. It is inadequate, they contend, because it purports to preclude awards of certain species of damages. It is inaccessible, because, they insist, among other things, it precludes a class action.

A. Adequacy

The Leonards contend that the arbitral forum is inadequate, because the arbitration clause purports to preclude a remedy for “indirect, special or consequential damages or loss of anticipated profits.” Leon-ards’ Brief, at 42. They rely on Ex parte Thicklin, 824 So.2d 723 (Ala.2002), in which this Court held that a portion of an arbitration provision purporting to exclude liability for punitive damages was unconscionable and unenforceable as a violation of public policy. However, this case is distinguishable.

Terminix concedes that the contract in this case says nothing of punitive damages. In Alabama, limitations on damages that may be recovered are not, per se, against public policy. It is well established that “ ‘[t]he Legislature is endowed with the exclusive domain to formulate public policy in Alabama....’ ” Ex parte Celtic Life Ins. Co., 834 So.2d 766, 767 (Ala.2002) (quoting Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, 1245 (Ala.2001) (opinion on return to remand), cert. denied, 535 U.S. 986, 122 S.Ct. 1536, 152 L.Ed.2d 464 (2002), overruled on other grounds, Ex parte Thicklin). The Legislature, for ex ample, has declared: “Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, but limitation of damages where the loss is commercial is not.” Ala.Code 1975, § 7-2-719(3) (emphasis added). See also Kennedy Elec. Co. v. Moore-Handley, Inc., 437 So.2d 76, 81 (Ala.1983) (“Alabama law clearly permits a seller to limit or exclude by contract any liability for consequential damages.... Such agreements are valid and enforceable.”).

This is not a personal-injury case. Nor is it a case involving damage to the Leon-ards’ house. Instead, it is a case based on alleged violations of a statutory duty, where primarily equitable remedies are sought, namely, rescission of the Plan, and the restitution of the annual renewal amounts paid under it. From a public-policy standpoint, we can discern no difference between a contract for the sale of goods, as contemplated by § 7-2-719(3), and a contract for services, such as this one. Thus, the arbitration clause is not unconscionable solely because it purports to preclude a remedy for “indirect, special or consequential damages or loss of anticipated profits.” The issue of the enforceability of the separate provision of the contract entitled “Disclaimer,” which reads, “Terminix Disclaims any Liability for Special, Incidental, or Consequential Damages,” is not before us.

B. Accessibility

The Leonards also contend that the arbitration clause is unconscionable, because, they say, it precludes a class action, which, they argue, is the only way plaintiffs with claims as small as the Leonards’ claims can obtain relief. More specifically, they state:

“While a plaintiff with an individual $75,000 claim can probably get a lawyer on a contingent fee to represent him or her, ordinary persons such as the Leon-ards with a claim less than $500 could not, and thus would have to face Termi-nix’s well-financed, aggressive battery of experienced lawyers by himself or herself in an arbitration, or else pay a lawyer by the hour for legal representation, which makes no sense in relation to the small dollar value claims at issue.”

Leonards’ Brief, at 28 n. 28 (emphasis added).

This argument stands on better ground. The Leonards base their contention of economic feasibility on what they describe as the “small dollar value of the claims of the Leonards (less than $500).” Leonards’ Brief, at 21. According to the Leonards, the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) applicable to this proceeding include: (1) a $500 arbitration filing fee; (2) a minimum $150 administrative fee per party; (3) an administrative fee of $150-$250 per day per party for each hearing date; (4) one-half of the average arbitrator’s fee of $700 per day; (5) one-half the cost of the charge for a meeting room; and (6) the cost of an attorney.

Terminix responds to this argument by pointing to the allegation in the Leonards’ complaint seeking unspecified damages for emotional distress as well as punitive damages, thereby making the claims of sufficient value to avoid the economic-unfeasi-bility argument. This contention fails for two reasons. First, if the arbitration clause is enforced, Terminix will be entitled, as we held in Part I.A. above, to assert that portion of the arbitration clause barring the Leonards from recovering “indirect, special, or consequential damages.” Second, even if the arbitration clause is deemed unconscionable and therefore unenforceable, Terminix will have the opportunity to urge application of the authorities relied upon in Part I.A. above to uphold the similar contract provision, independent of the arbitration clause, disclaiming any liability for special, incidental, or consequential damages.

The Leonards observe that the rule of law for which they argue is not an attack on arbitration clauses alone, thus running afoul of Doctor’s Associates, Inc. v. Casar- otto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); their position, they say, would be the same if the contract merely prohibited assertion of claims on a class-wide basis. The cases from the United States Supreme Court announcing favorable disposition toward the enforcement of agreements requiring the settlement of disputes by arbitration are numerous. See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002); Gilmer v. Interstate/'Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). However, also plentiful are cases from the United States Supreme Court recognizing the importance of relief by way of a class action. See, e.g., Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (“Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device.”). See also to the same effect Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); and Eisen v. Car-lisle & Jacquelin, 417 U.S. 156, 161, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

Several courts confronting this issue have been favorably disposed to the view that an arbitration clause that defeats the prospect of class-action treatment in a setting where the practical effect affords the defendant immunity is unconscionable. See, e.g., Knepp v. Credit Acceptance Corp. (In re Knepp), 229 B.R. 821, 842 (Bankr.N.D.Ala.1999) (“If this approach [no class-wide arbitration] prevails, the pervasive use of arbitration agreements in consumer contracts could have the effect of eliminating class actions as an option available to aggrieved consumers. If class actions are no longer an option, the vast majority of consumer claims involving relatively small sums of money on an individual basis will be left without a remedy.”); Keating v. Superior Court of Alameda County, 31 Cal.3d 584, 609-10, 645 P.2d 1192, 1207, 183 Cal.Rptr. 360, 375 (1982) (“If the right to a classwide proceeding could be automatically eliminated in relationships governed by adhesion contracts through the inclusion of a provision for arbitration, the potential for undercutting these class action principles, and for chilling the effective protection of interests common to a group, would be substantial.... If, however, an arbitration clause may be used to insulate the drafter of an adhesive contract from any form of class proceeding, effectively foreclosing many individual claims, it may well be oppressive and may defeat the expectations of the nondrafting party.”), rev’d in part and appeal dismissed in part on other grounds, Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1437 (M.D.Ala.1998); Patterson v. ITT Consumer Fin. Corp., 14 Cal.App.4th 1659, 18 Cal.Rptr.2d 563 (1993); Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 473, 700 N.E.2d 859, 866-67 (1998); State of West Virginia ex rel. Dunlap v. Berger, 211 W.Va. 549, 567 S.E.2d 265 (2002); and Ting v. AT & T, 182 F.Supp.2d 902, 938-39 (N.D.Cal.2002) (“This lawsuit is not about arbitration.... [Under the guise of requiring arbitration, the company] was actually rewriting substantially the legal landscape on which its customers must contend.... [The company] sought to shield itself from liability ... by imposing Legal Remedies Provisions that eliminate class actions, sharply curtail damages in cases of misrepresentation, fraud, and other intentional torts, cloak the arbitration process with secrecy and place significant financial hurdles in the path of a potential litigant. It is not just that [the company] wants to litigate in the forum of its choice — arbitration; it is that [the company] wants to make it very difficult for anyone to effectively vindicate her rights, even in that forum. That is illegal and unconscionable — ”).

Justice Woodall’s dissenting opinion accuses the Leonards of “repackaging of arguments considered and rejected by this Court in Green Tree Financial Corp. v. Wampler, 749 So.2d 409 (Ala.1999), Ex parte Thicklin, 824 So.2d 723 (Ala.2002), Johnnie’s Homes, Inc. v. Holt, 790 So.2d 956 (Ala.2001), and Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala.1998), namely, that expenses the plaintiffs could incur in arbitration render that forum prohibitively expensive.” 854 So.2d at 542. Continuing, the dissenting opinion concludes, “They can cite no case in which this Court has held an arbitration clause to be unconscionable on the ground of financial hardship.” 854 So.2d at 542.

The Leonards contend that the arbitration clause mandates a procedure involving costs so great in comparison to the potential recovery that the injured person is effectively precluded from a remedy. Thus, the “repackaging” actually occurs in the dissenting opinion with its reliance upon cases holding that economic hardship to a person of limited resources does not render an arbitration agreement unconscionable. Such authority does not foreclose a contention that an arbitration clause is unconscionable because economic feasibility precludes presentation of the claim. The line of cases rejecting challenges to arbitration clauses on the ground of unconscionability because of the impecunious circumstances of the plaintiff is distinguishable. That the expenses of arbitration would exceed the amount in controversy is not a problem personal or peculiar to any particular consumer but is, rather, a phenomenon inherent in the transaction itself. In other words, the impracticality of pursuing a claim for a small amount of money at a cost in excess of the value of the claim is just as much an obstacle to the wealthiest member of society as it is to a pauper. Indeed, a wealthy person oblivious to this reality may not long remain wealthy. Suffice it to say that while it is true that the Leonards can cite no case in which this Court has held an arbitration clause to be unconscionable on the ground of financial hardship, by the same token, Terminix can cite no case in which this Court has upheld an arbitration clause in the face of a challenge of uncon-scionability by reason of economic feasibility.

This Court has not been reluctant to declare arbitration agreements or portions thereof unconscionable in a proper case. See, e.g., Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779 (Ala.2002) (arbitration clause held unconscionable on basis of unilateral appointment of the arbitrator); Ex parte Thicklin, supra, and Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, 1245 (Ala.2001) (opinion on return to remand), cert. denied, 535 U.S. 986, 122 S.Ct. 1536, 152 L.Ed.2d 464 (2002) (arbitration clause that precluded punitive-damages award held uncon scionable); American General Fin., Inc. v. Branch, 793 So.2d 738 (Ala.2000) (arbitration clause held unconscionable based on combination of unusually broad language, reservation of legal remedies for company but not for consumer, limitation of damages award, and lack of meaningful choice to the consumer). The applicable standards for determining unconscionability are set forth in American General Finance, 793 So.2d at 748 — whether there are (1) terms that are grossly favorable to a party that has (2) overwhelming bargaining power. One of the criteria for finding a contract unconscionable is that it be “patently unfair.” Layne v. Garner, 612 So.2d 404, 408 (Ala.1992).

The Leonards have shown that the Terminix contract is a contract of adhesion that has never been modified for any Alabama customer; they have also shown that they were not given any opportunity to accept or reject the arbitration provision. Nor were they given any quid pro quo for agreeing to arbitration and forgoing their constitutional right to a trial by jury. The Leonards are not sophisticated or wealthy consumers with equal bargaining power. The Leonards’ choice was to accept the transfer of the Sibleys’ contractual relationship with Terminix (with no added cost) or obtain the termite bond from another termite control company, which would have required payment of substantial added costs of at least $1,000 for a new termite treatment by that company. Moreover, Terminix’s competitors in Alabama also used arbitration provisions in their contracts at the time the Leonards bought their home.

The limitation upon recovery of “indirect, special, and consequential damages or loss of anticipated profits” in the arbitration clause and elsewhere in the agreement and the preclusion of eligibility for class-action treatment by inserting a provision requiring arbitration deprive the Leonards of a meaningful remedy and lead us to conclude that Terminix has extracted unreasonably favorable and patently unfair terms in its contract of adhesion. Consequently, the arbitration clause is unconscionable and unenforceable.

The fact that the Leonards are deprived of a meaningful remedy leads to the defect in the dissent’s reliance upon the Constitution of Alabama of 1901 to support Termi-nix’s substantive contractual right to escape the applicability of Rule 28, Ala. R. Civ. P. Justice Woodall states in his dissent: “Allowing the Leonards to pursue a class action in derogation of the arbitration agreement would elevate Rule 23, Ala. R. Civ. P., which authorizes and governs such actions, above the substantive, contractual rights of Terminix. The effect would be precisely what the Constitution [Ala. Const, of 1901, Amend. 328, § 6.11] prohibits — it would ‘abridge’ or ‘modify’ the substantive rights of Terminix.” 854 So.2d at 543. The fallacy of this argument is that it assumes that Terminix has a right to enforce a contract under the circumstances here presented. The public policy of Alabama as articulated by § 13 of the Constitution of Alabama of 1901 guarantees that “every person, for any injury done him, ... shall have a remedy by due process of law.” As previously noted, one of the criteria for finding a contract unconscionable is that it be “patently unfair.” Layne v. Garner, 612 So.2d at 408. The guaranty of § 13 is well-suited to informing our judgment on the issue of unfairness. Resort to § 13, instead of recognizing a “substantive due-process right” as Justice Woodall contends in his dissent, comports with settled principles guiding our judgment on the issue of unconscionability.

Title 9 U.S.C. § 2 calls for the enforcement of arbitration agreements “save upon such grounds as exist at law or in equity for the revocation of any contract.” The invocation of Alabama law relating to un-conscionability to declare an arbitration agreement unconscionable and thereby avoid relegation to arbitration of small claims not reasonably susceptible to meaningful redress in that forum does not im-permissibly discriminate against arbitration contrary to Doctor’s Associates, Inc. v. Casarotto, supra. This is so because a conclusion of unconscionability could apply with equal force to an effort to enforce a contract provision silent as to arbitration yet prohibiting participation in a class action under similar circumstances.

This arbitration agreement is unconscionable because it is a contract of adhesion that restricts the Leonards to a forum where the expense of pursuing their claim far exceeds the amount in controversy. The arbitration agreement achieves this result by foreclosing the Leonards from an attempt to seek practical redress through a class action and restricting them to a disproportionately expensive individual arbitration.

II. Conclusion

For the foregoing reasons, the trial court erred in holding that the arbitration clause in the Plan was valid and enforceable. Because it erroneously granted Ter-minix’s motion to compel arbitration, its order is reversed and the cause is remanded for further proceedings, consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

SEE, BROWN, WOODALL, and STUART, JJ., dissent.

SEE, Justice

(dissenting).

I respectfully dissent.

The Leonards agreed to a termite-protection contract with Terminix that requires that they arbitrate any dispute arising under the contract under the commercial arbitration rules of the American Arbitration Association (“AAA”). In 1997, the Leonards sued Terminix, alleging statutory violations and negligence, breach-of-fiduciary-duty, and breach-of-contract claims. Terminix moved to compel arbitration under the terms of the termite-protection contract. The Leonards now seek to escape their contractual obligation to Terminix, arguing that the arbitration clause in their contract is unconscionable because, they say, it effectively affords them no remedy. They argue that the cost of arbitration (at least $1,100) is greater than the dollar value of their damage claims ($500), thereby making any remedy offered in arbitration illusory. The Leonards argue that a class action, barred by the arbitration clause, offers the only meaningful means of remedy, given the small value of their damage claims.

The Leonards’ argument hinges on the assertion that the arbitration clause requires them to pay such prohibitively high arbitration costs that the arbitral forum affords' them no meaningful remedy and that the clause requiring them to submit claims to that forum is thus unconscionable. Whether the arbitration clause is unconscionable, therefore, depends on what the arbitration clause requires of the Leonards and of Terminix.

“The fundamental determination in the legal construction of contracts is the real intention of the parties.” Parr v. Godwin, 463 So.2d 129, 132 (Ala.1984). “[A]s with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). “[Parties are generally free to structure their arbitration agreements as they see fit.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

“Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contact and that will give effect and meaning to all of its terms.”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000).

The majority accepts on its face the Leonards’ assertion that the arbitration clause in the termite-protection contract requires them to pay prohibitively high arbitration costs and reasons from that premise that the arbitration clause is unconscionable because it denies the Leon-ards a remedy. In fact, the contract does not impose arbitration costs on the Leon-ards.

The arbitration clause reads:

“ARBITRATION. The Purchaser and Terminix agree that any controversy or claim between them arising out of or relating to this agreement shall be conducted in accordance with the Commercial Arbitration Rules then in force of the American Arbitration Association. The decision of the arbitrator shall be a final and binding resolution of the disagreement which may be entered as a judgment by any court of competent jurisdiction. Neither party shall sue the other where the basis of the suit is this agreement other than for enforcement of the arbitrator’s decision. In no event shall either party be liable to the other for indirect, special or consequential damages or loss of anticipated profits.”

The contract itself is silent as to who must pay the costs of arbitration. When a contract’s terms are ambiguous, this Court must use rules of construction to resolve the ambiguity. Homes of Legend, 776 So.2d at 746. Under those rules, this Court must accept the construction that will uphold the contract. Id.

In Cole v. Burns International Security Services, 105 F.3d 1465, 1467-69 (D.C.Cir.1997), an employee filed claims under Title VII of the Civil Rights Act of 1964. The employer moved to compel arbitration pursuant to a clause in the employment contract that read, in pertinent part:

“[I]n the event that you seek relief in a court of competent jurisdiction for a dispute covered by this Agreement, the Company may, ... at its option, require all or part of the dispute to be arbitrated by one arbitrator in accordance with the rules of the American Arbitration Association. You agree that the option to arbitrate any dispute is governed by the Federal Arbitration Act, and fully enforceable.”

105 F.3d at 1469. The Cole court considered whether the arbitration clause was unconscionable because it could be interpreted to require Cole to pay arbitration fees. The court held:

“These [arbitration] fees would be prohibitively expensive for an employee like Cole, especially after being fired from his job, and it is unacceptable to require Cole to pay arbitrators’ fees, because such fees are unlike anything that he would have to pay to pursue his statutory claims in court.”

105 F.3d at 1484 (footnote omitted). The court continued, however:

“In sum, we hold that Cole could not be required to agree to arbitrate his public law claims as a condition of employment if the arbitration agreement required him to pay all or part of the arbitrator’s fees and expenses. In light of this holding, we find that the arbitration agreement in this case is valid and enforceable. We do so because we interpret the agreement as requiring Burns Security to pay all of the arbitrator’s fees necessary for a full and fair resolution of Cole’s statutory claims.”

105 F.3d at 1485. The Cole court stated that the AAA rules are silent as to who must bear the costs of arbitration. Id. The Cole court then held that because the usual rules of contract construction require a court to interpret a contract so as to make it lawful, it must require arbitration and tax the costs to Burns Security, rather than find the arbitration clause unconscionable and void the contract. Id.

Accepting the majority’s conclusion in this case that if the Leonards are required to pay the costs of the arbitration, they are denied a meaningful remedy, then, following the Cole court’s reasoning, we should read the Leonards’ termite-protection contract as requiring that Terminix pay the costs of arbitration, thereby relieving the Leonards of that financial burden and giving effect to the termite-protection contract.

The Leonards’ contract, like Cole’s contract, is silent as to who must pay the arbitration costs. The Leonards’ contract, like Cole’s contract, incorporates by reference the AAA’s commercial arbitration rules. Those rules permit the arbitrator to assess all of the costs against one party. See Cole, 105 F.3d at 1485. A construction of the arbitration clause that taxes the costs to Terminix relieves the Leonards of any onerous financial burden associated with arbitration, thus affording them a remedy for their claims and allowing the issues to be resolved in the manner agreed by the parties to the contract. I would so construe the contract and affirm the trial court’s order compelling arbitration. Therefore, I must dissent.

WOODALL, Justice

(dissenting).

Because the lead opinion incorrectly concludes that the arbitration agreement is unconscionable, and, therefore, unenforceable, I respectfully dissent. The Leonards contend that the arbitration clause mandates a procedure involving costs so great in comparison to the potential recovery that the injured person is effectively precluded from a remedy. This argument is essentially a repackaging of arguments considered and rejected by this Court in Green Tree Financial Corp. v. Wampler, 749 So.2d 409 (Ala.1999), Ex parte Thicklin, 824 So.2d 723 (Ala.2002), Johnnie’s Homes, Inc. v. Holt, 790 So.2d 956 (Ala.2001), and Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala.1998), namely, that expenses the plaintiffs could incur in arbitration render that forum prohibitively expensive. They can cite no case in which this Court has held an arbitration clause to be unconscionable on the ground of financial hardship. Unless this Court overrules those cases, which the lead opinion does not purport to do, it is clear that the Leonards should be compelled to arbitrate their individual claims.

Thus, the inclusion of a class-action argument adds little to the analysis. An arbitration clause is not unconscionable merely because it precludes class representation by a party to the contract. “ ‘[The] class action is a procedural device created solely for the purposes of litigar tion,’ ” Ex parte Holland, 692 So.2d 811, 814 (Ala.1997) (quoting Adams v. Robertson, 676 So.2d 1265, 1268 (Ala.1995) (emphasis added)), whereas “[t]he right to [compel] arbitration is contractual and therefore substantive.” Sanders v. Robinson Humphrey/American Express, Inc., 634 F.Supp. 1048, 1065 (N.D.Ga.1986) (emphasis added), aff'd in part, rev’d in part on other grounds sub nom. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir.1987). “Congress did not intend that procedural class action certification be used to abrogate the contractual rights employed in the execution of the arbitration agreements by the defendants.... ” 634 F.Supp. at 1065. “A procedural device aggregating multiple persons’ claims in litigation does not entitle anyone to be in litigation; a contract promising to arbitrate the dispute removes the person from those eligible to represent a class of litigants.” Caudle v. American Arbitration Ass’n, 230 F.3d 920, 921 (7th Cir.2000).

Indeed, this Court is forbidden by the Alabama Constitution of 1901 from using a procedural rule to “abridge, enlarge or modify the substantive right of any party.” Ala. Const.1901, Amend. 328, § 6.11 (emphasis added). More specifically, in investing this Court with rule-making power, the people of Alabama stated: “The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party .Id. Allowing the Leonards to pursue a class action in derogation of the arbitration agreement would elevate Rule 23, Ala. R. Civ. P., which authorizes and governs such actions, above the substantive, contractual rights of Terminix. The effect would be precisely what the Constitution prohibits — it would “abridge” or “modify” the substantive rights of Termi-nix.

In fact, I do assume that Terminix has a right to enforce its substantive contract provisions and that nothing in Ala. Const. 1901, § 13, prevents it from doing so. A class action is a procedure, not, as the main opinion implies, a remedy. The unstated premise of the lead opinion is that the Constitution of Alabama contains a substantive due-process right to litigate as a class representative. It cites no authority for such a premise. If the Constitution contains no such guarantee, then the main opinion conflicts with Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (states may not discriminate against arbitration). Because I find no such due-process right in the Alabama Constitution, I believe the Court is merely discriminating against arbitration. Therefore, I respectfully dissent.

BROWN and STUART, JJ., concur.

On Application for Rehearing

PER CURIAM.

On rehearing, Terminix argues that this Court erred on original submission in failing to consider that Walter Leonard, Jr., and Evalina Leonard’s claim would be subject to the American Arbitration Association’s Supplementary Procedures for Consumer-Related Disputes, which Terminix says were effective March 1, 2002 (“the AAA consumer rules”). Those rules, Ter-minix says, would allow the Leonards to bring their claim in small-claims court or to have their claim arbitrated at a greatly reduced cost, thus providing them with a remedy other than a class-action proceeding. Terminix has also filed an alternative motion asking us to vacate our October 18, 2002, opinion on original submission and to dismiss the appeal as moot.

First, we point out that Terminix has not properly placed the AAA consumer rules before us. In April 2002, while this appeal was pending and long after the record had been completed, counsel for Terminix wrote a letter to the clerk of this Court enclosing a copy of the rules. That letter, in essence, requested this Court to consider matters not of record in this case. Counsel did not seek leave of the Court to supplement the record or to provide supplemental authority. If this Court were to entertain such a submission, then it should have been in the form of a motion filed pursuant to Rule 27, Ala. R.App. P. The Leonards moved to strike the letter and its enclosure, and this Court granted their motion. Terminix has now attached the AAA consumer rules as an exhibit to its brief in support of its application for rehearing. It is axiomatic that matters outside the record cannot be brought before this Court on appeal merely by attaching them to a brief. Given the controversy as to the effective date of the AAA consumer rules, we decline at this stage of the proceedings to take judicial notice of those rules.

Even if the AAA consumer rules were properly before us, however, we do not agree with Terminix that those rules would entirely resolve the questions presented by this case. We note that rules sponsored by the American Arbitration Association (“the AAA”) and tailored for use in arbitrating consumer disputes have been available since 1998, although the use of those rules was optional. In May 1998, the AAA published A Due Process Protocol for Mediation and Arbitration of Consumer Disputes, and on July 1, 1999, Arbitration Rules for the Resolution of Consumer-Related Disputes became effective. See Ex parte Thicklin, 824 So.2d 723, 734 (Ala.2002); Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 417 (Ala. 1999); and Ex parte Napier, 723 So.2d 49, 52 n. 2 (Ala.1998), in which this Court noted the availability of such rules.

Terminix contends that the AAA consumer rules effective in March 2002 are mandatory and that those rules apply to arbitrations taking place pursuant to contracts such as the one between Terminix and the Leonards, even though those contracts provide that arbitration is to be conducted pursuant to the AAA Commercial Rules. According to Terminix, the AAA Commercial Rules state that when they conflict with the AAA consumer rules, the consumer rules apply. Under the AAA consumer rules, Terminix says, the arbitration costs to consumers are greatly reduced. The Leonards dispute the effective date of the changes in the rules upon which Terminix relies, and they also dispute Terminix’s claim that the new rules will reduce arbitration costs to consumers. The Leonards further contend that under certain circumstances, consumers who arbitrate may still be faced with costs that exceed small claims like theirs.

The parties disagree about when the rule changes promulgated by the AAA became effective, which rules would govern any arbitration proceeding in this case, and what effect, if any, the new rules would have on the adequacy of the remedies available to the Leonards, especially if a right to proceed in small-claims court is indeed available to them. Those issues have never been considered by the trial court, because the AAA consumer rules relied upon by Terminix became effective after the trial court’s order granting arbitration. Before this Court should address those issues, they should be developed and resolved initially in the trial court, where Terminix, if it so chooses, can seek, in proceedings analogous to those available under Rule 60, Ala. R. Civ. P., consideration of the effect, if any, of the AAA consumer rules on this dispute.

APPLICATION OVERRULED; MOTION TO VACATE OPINION OF OCTOBER 18, 2002, AND TO DISMISS APPEAL DENIED.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

SEE, BROWN, WOODALL, and STUART, JJ., dissent.

      . The complaint does not allege that any plaintiff incurred any property damage, that is, that any plaintiff suffered a reinfestation of termites as a proximate result of the alleged statutory violations.

      . Because of this Court's holding in Med Center Cars, Inc. v. Smith, 727 So.2d 9, 20 (Ala.1998), that class-wide arbitration is not permitted absent an agreement permitting disposition of claims on such a basis and because there is no such agreement before us, the Leonards are relegated to pursuing their claims in an arbitral forum unless this Court determines the arbitration clause to be unconscionable under the circumstances here presented. In such event, the Leonards would have the option of pursuing their claims in the small-claims court or in the circuit court individually and as representatives of a class. The propriety of certification of such a class is not before us.

      . Terminix has not asked that the AAA's Consumer Arbitration Rules be substituted for the Commercial Arbitration Rules specified in the arbitration clause.

      . The Leonards actually disclaim any reliance upon economic hardship to them. In their reply brief they state: “The Leonards (although relatively poor) cannot claim poverty, so they could not seek a reduction of fees based on financial hardship.” Reply brief, at 6.

      . As previously noted, the Leonards have the option of appearing in the small-claims court, if they so choose. See note 2.

      . In addition to money damages, the Leon-ards seek injunctive relief that would compel Terminix to alter its reinspection practices. The Leonards argue in their brief to this Court that changes in Terminix’s practices are "vital to protect customers like the Leon-ards against harm and to catch termites at the earliest stages before serious damage is done." (Leonards' Brief at 22.) The Leon-ards assert that absent an injunction, Termi-nix’s poor inspection practices likely will cause the Leonards to pay substantial out-of-pocket costs to repair termite damage to their home sometime in the future. Id. Insofar as the Leonards’ assertion is correct, the actual "value” of the Leonards' claims is greater than $500.

      . The majority states that this case is not about the financial hardship on the Leonards of arbitrating the claims, but about the fact that "the expenses of arbitration would exceed the amount in controversy....” 854 So.2d at 537. Implicitly, therefore, the majority accepts the Leonards' argument that the contract requires the Leonards to pay the costs of arbitration.

      . The Leonards present their argument as an either/or choice — either they must be allowed to pursue a class action, or the prohibitive costs of arbitration deny them an effective remedy. The majority opinion expressly rejects the class-action alternative suggested by the Leonards. The majority does not order the trial court to certify a class action, but states that "the Leonards would have the option of pursuing their claims in the small-claims court or in the circuit court individually and as representatives of a class. The propriety of certification of such a class is not before us.” 854 So.2d at 535 n. 2. Indeed, the majority states that "a conclusion of un-conscionability could apply with equal force to an effort to enforce a contract provision silent as to arbitration yet prohibiting participation in a class action under similar circumstances.” 854 So.2d at 539. Indeed, the majority reverses the trial court’s arbitration order and remands the case for additional proceedings. Thus, the majority grounds its holding on the fact that the fees unique to arbitration make that forum such an inhospitable place for the Leonards to seek a remedy that the arbitration provision is unconscionable.

      . I specifically do not reach that issue.

      . Terminix, in fact, understands the contract to work this way. They argue in their brief to this Court: “Terminix offered evidence in the Circuit Court that when Terminix arbitrates disputes with customers, the costs of arbitration are almost always assessed against Ter-minix, even when Terminix prevails on the merits.” (Terminix’s Brief at 46.)

      . In other words, plaintiffs do not enjoy a general, nonwaivable right to serve as a class representative.