text:
    Donna Michelle Smith PULLIAM, Appellant, v. Samuel Arthur SMITH, Appellee.
    No. 2002-CA-02107-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Jennifer Sekul Harris, Jackson, attorney for appellant.
    Rebecca C. Taylor, Wiggins, Pamela L. Nelson, attorneys for appellee.
   THOMAS, J.,

for the Court.

¶ 1. Donna Michelle Smith Pulliam and Samuel Arthur Smith were granted a divorce by the Stone County Chancery Court. Donna appeals, asserting three issues:

I. DID THE TRIAL COURT COMMIT MANIFEST ERROR BY FAILING TO FIND A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES WHICH DETRIMENTALLY EFFECTED THE-CHILDREN PRIOR TO MAKING AN ALBRIGHT FACTORS EVALUATION?

II. DID THE TRIAL COURT ERR IN APPLYING THE ALBRIGHT FACTORS?

III. DID THE TRIAL COURT COMMIT MANIFEST ERROR IN FAILING TO MAKE ANY FINDINGS UNDER THE FERGUSON FACTORS WITH REGARD TO THE MARITAL DEBTS OF THE PARTIES?

Finding no error, we affirm.

FACTS

¶ 2. Samuel and Donna married in 1990, and two male children were born to the marriage, the oldest being born on June 19, 1993, and the youngest on December 18, 1997. Donna filed a complaint for divorce alleging habitual cruel and inhuman treatment, or in the alternative irreconcilable differences. Samuel counterclaimed alleging habitual cruel and inhuman treatment and adultery. Several temporary orders were issued regarding the issues of child custody and support, each of-which granted Donna physical custody of both children, but alterations were made to visitation, and Dr. William Gasparini was ordered to conduct a custody evaluation. Settlement negotiations produced an agreed judgment granting a divorce on irreconcilable differences that was entered on December 13, 2001. The agreed judgment provided that Donna would have physical custody of the children for nine months of the year, during the school term, and Samuel would have physical custody during the summer. The parent without physical custody would have visitation on alternating weekends, and Samuel additionally would have visitation on Wednesday evenings during the school year. Samuel was to pay $400 per month in child support. The agreed judgment reserved issues of property settlement, retirement and alimony for trial.

¶ 3. Nine days after the entry of the agreed order, Donna married John Pul-liam, who resided in Clarksville, Tennessee, which was 502 miles from the former marital home, and sought to remove the children from Mississippi. Donna had not previously disclosed her plans to relocate herself and the children to either Samuel or to the chancery court prior to the entry of the agreed order. Samuel filed for modification of child custody, seeking physical custody of the children and contempt. Donna counterclaimed for nonpayment of child support. On January 15,' 2002, the chancery court entered a temporary order, which provided that Donna would have temporary physical custody if she elected to remain in the Wiggins, Mississippi area, but that if she chose to move to Tennessee, Samuel would have temporary physical custody. The chancery court also ordered Donna to enroll the children in school in Mississippi and stated that it retained jurisdiction of the matter. Donna chose to move to Tennessee, and the children remained with Samuel in what was formerly the marital home.

¶ 4. After the entry of the temporary order, Chancellor Wes Teel resigned, and Chancellor James Persons was assigned the case. On September 27, 2002, the chancery court entered a judgment, granting Samuel physical custody, granting Donna visitation one weekend per month, every three day weekend and summer visitation for two months, with the parents alternating Thanksgiving and Christmas. The judgment provided that transportation costs be shared equally, and Donna have reasonable telephone visitation. Donna was ordered to pay $150 per month in child support. Additionally, the judgment said that Donna was entitled to half of Samuel’s retirement account with the Public Employment Retirement System, and it divided the marital debt and estate in half, with each party taking an equal share.

ANALYSIS

STANDARD OF REVIEW

¶ 5. The standard of review employed by this Court in domestic relations cases is well settled. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284 (¶ 11) (Miss.Ct.App.1998) (citing Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989)).

I. DID THE TRIAL COURT COMMIT MANIFEST ERROR BY FAILING TO FIND A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES WHICH DETRIMENTALLY EFFECTED THE CHILDREN PRIOR TO MAKING AN ALBRIGHT FACTORS EVALUATION?

¶ 6. The part of the judgment pertaining to this issue provided:

[W]ith regard to the child custody arrangements, the Court finds that at the time of the December 13, 2001, agreed judgment and for a period of at least thirty days or more prior to that time, Donna was dating John, had discussed marriage with John and a move to Tennessee with the minor children. These facts were concealed from Sam until after the December 13, 2001, judgment. The judgment granted primary custody to Donna with both parties having joint legal custody.' Further, the visitation that Sam agreed to was impossible from the beginning, that is, weekly visitation every Wednesday and every other weekend. At the time Sam signed and agreed to the December 13, 2001 agreed judgment he did not know that his children would be taken 502 miles away and could not know of these things because they were concealed from him. Accordingly, this Court holds that the custody and visitation arrangements as set forth in the December 13, 2001 agreed judgment are void because of the concealment and misrepresentation by Donna,, which is tantamount to fraud.
The Court further holds that while Donna had the right to move to Tennessee, and that such a move ordinarily would not constitute a material change in circumstances. However, where Donna, at the time of the entry of the divorce, knew that she was to remarry within two or three weeks and move 502 miles away, and did not disclose her plans to Sam prior to the entry of the agreed judgment of divorce, that such does constitute a material change in circumstances. The custody and visitation arrangement clearly contemplated and Sam was reasonably led to believe that both parties would remain in the Wiggins area where the visitation and custody arrangements could be complied with and enjoyed by both parties.

The judgment found that alteration of the custody provisions of the previous agreed judgment was justified on two separate grounds: fraud on the court and a material change in circumstances.

¶ 7. A chancery court retains power to amend an agreed judgment in a domestic relations matter to conform to the true facts where one party conceals relevant facts from it and the other party. Askew v. Askew, 699 So.2d 515 (¶ 22) (Miss.1997); Manning v. Tanner, 594 So.2d 1164, 1167 (Miss.1992). However, the issue of fraud is generally raised via a M.R.C.P. 60(b) motion. Askew, 699 So.2d at (¶ 17). Appellate review of the decision to grant a M.R.C.P. 60(b) motion is abuse of discretion. Id. The party asserting the motion has the burden of proof of showing:

(1) a representation, (2) its falsity, (3) its materiality, (4) speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted -on >by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon* and (9) his consequent and.-proximate injury.

Id. (citing Wright, Miller & Kane, Federal Practice and Procedure; Civil 2d § 2852 at 235 (1995)). See also Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). In this case, rather than filing a M.R.C.P. 60(b) motion, Samuel sought modification of the custody order and a finding of contempt against Donna. Samuel’s decision to proceed on a modification theory, rather than specifically pleading M.R.C.P. 60(b), was understandable as his primary concern was not to attack the agreed order itself, but to prevent Donna from moving the children, and making it impossible to comply, with the visitation and custody provisions of the agreed order. Nevertheless, the result of proceeding under a modification of custody pleading was that the chancellor’s resulting order did not state the specific findings of fact applicable to M.R.C.P. 60(b) motions, even though it appears from the record in this case that these findings could be supported by evidence.

¶ 8. However, we find it unnecessary to reach the issue of whether the factual findings that the chancellor did make are sufficient to uphold setting aside the agreed order on the basis of fraud, because the chancellor’s finding of a material change in circumstances is well supported by the record. “A decree granting child custody is not to be modified so as to change custody from one parent to another unless there has been a material change in circumstances which adversely affects the child’s welfare occurring since the original decree.” Kavanaugh v. Carraway, 435 So.2d 697, 699 (Miss.1983); Mixon v. Sharp, 853 So.2d 834(¶8) (Miss.Ct.App.2003). In the present case, the chancellor found that Donna’s move 502 miles away from the former marital residence constituted a material change that adversely affected the two children. First, the move would effectively make it impossible to carry out the visitation provisions of the agreed judgment. Therefore, as a matter of practical fact, the custody agreement had to be modified. Secondly, the chancellor found as a matter of fact that Donna had committed a fraud not only towards Samuel, but also the chancery court, in falsely asserting she intended to perform under the terms of the agreed judgment. The chancellor found that Donna’s moral fitness to raise the children was implicated by her decision to state false facts to the chancery court concerning her intentions towards not only the children’s father, but also to change the school which they had attended their entire lives, in a district in which Samuel is a teacher and a coach. Findings of fact are not easily set aside. See, e.g., Andrews, 723 So.2d at (¶ 7). The determination to alter the physical custody of the children during the school year was made to prevent the children being moved from their accustomed community during a time of natural emotional stress, and being taken out of state by a parent who, after the entry of the agreed judgment setting custody, had given reason to question her moral fitness. The chancellor did not abuse his discretion in finding a material change of circumstances requiring a change in custody.

II. DID THE TRIAL COURT ERR IN APPLYING THE ALBRIGHT FACTORS?

¶ 9. The chancellor made specific findings of fact for each of the factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Donna contends the findings were against the overwhelming weight of the evidence. Donna contends that the chancellor erred in finding that the health of the children favored neither parent, because Samuel was not present until the last moment before one of the children had surgery for an eye condition, and was not familiar with the medications for that condition; however, the record shows that Samuel was present at all surgeries and had been administering medications from January through September of 2002. Donna contends that the chancellor erred in finding that the continuity of care favored neither parent; however, the record shows that Donna was the primary caregiver until the entry of the temporary order in January of 2002, and Samuel had been the primary caregiver thereafter.

¶ 10. Donna contends that the chancellor erred in finding that parenting skills favored neither party, because Donna is not employed full time and could be “a stay at home mom;” however, the record shows that during the summer vacation, the children will reside with Donna, and Samuel not only evidenced adequate after school care for the children, but also is a teacher in the same school district that the children would attend, and his job does not require overnight travel.

¶ 11. Donna contends that the chancellor erred in finding that the mental health of the parents favored Samuel, because the chancellor “emphasized” one sentence from Dr. Gasparini’s evaluation that stated Donna was “more unstable;” however, given Donna’s actions in misleading the chancery court as to her intentions not to abide by its custody order, the record supports the chancellor’s finding. Donna contends that the chancellor erred in finding that the emotional ties of the parent and the children favored neither party, because Samuel did not visit the children in Tennessee, during a period of time in which Donna had the children for visitation after her re-marriage; however, the record shows that Samuel was teaching in a summer program during this time period.

¶ 12. Donna contends that the chancellor erred in finding that the moral fitness of the parents favored Samuel; however, the record shows that the chancellor based this finding on the fact that she concealed her relationship with her present husband from the chancery court. Donna contends that the chancellor erred in finding that the home and school community “slightly” favored Samuel, because Samuel did not have a lease on the house he was renting; however, the house in question had been the marital residence during the marriage.

¶ 13. Donna contends that the chancellor erred in finding that neither child was old enough to express a preference with regard to which parent they wished to live with; however, neither child had attained the age of twelve. Donna contends that the chancellor erred in finding that stability of home and employment slightly favored Samuel; however, the record shows that Donna had recently remarried upon little consideration, and Samuel had stable employment in the community.

¶ 14. When a chancellor has applied the correct legal standard to a custody determination, this Court will not disturb the factual findings that are supported by substantial evidence. Creel v. Comacchione, 831 So.2d 1179 (¶ 13) (Miss.Ct.App.2002). In this case, the chancellor’s findings were well supported. There is no merit to this assignment of error.

III. DID THE TRIAL COURT COMMIT MANIFEST ERROR IN FAILING TO MAKE ANY FINDINGS UNDER THE FERGUSON FACTORS WITH REGARD TO THE MARITAL DEBTS OF THE PARTIES?

¶ 15. A failure to explicitly recite each and every Ferguson guideline does not mandate reversing a chancellor’s judgment. Glass v. Glass, 857 So.2d 786 (¶ 10) (Miss.Ct.App.2003). However, a chancellor’s findings must be specific enough to allow this Court to find that the factors were considered, and the chancellor determined what he considered to be the “key” factors. Id. In the present case, when ordering that the marital debt be divided equally, the chancellor made specific findings that, while not explicitly referencing the Ferguson decision, did elucidate his analysis of each relevant factor. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The chancellor considered each parties’ economic and domestic contributions, the disposal of marital assets by each party, the market value of marital assets, the value of nonmarital property, the income and earning capacity of each party, and the non-marital assets of each party. There is no showing that the division of debt had any tax considerations, nor was alimony an issue. Moreover, the majority of the marital debt consisted of college loans taken out to finance Donna’s training as a teacher, and the practical effect of the chancellor’s decision is that Samuel will continue to be responsible for that debt, though the chancellor also found that the loan proceeds had been used for general household expenses as well as education. The record shows that the chancellor considered the marital debt with regard to the Ferguson guidelines. The chancellor did not err in dividing the marital debt equally. There is no merit to this assignment of error.

¶ 16. THE JUDGMENT OF THE STONE COUNTY CHANCERY COURT IS AFFIRMED. THE APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.

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

      . These guidelines include:
      (1) economic and domestic contributions by each party to the marriage,
      (2) expenditures and disposal of the marital assets by each party,
      (3) the market value and emotional value of the marital assets,
      (4) the value of the nonmarital property,
      (5) tax, economic, contractual, and legal consequences of the distribution,
      (6) elimination of alimony and other future frictional contact between the parties,
      (7) the income and earning capacity of each party, and
      (8) any other relevant factor that should be considered in making an equitable distribution.


source: Caselaw Access Project

author: WOODALL, Justice. SEE, Justice

license: Public Domain

text:
    ALAFABCO, INC. v. The CITIZENS BANK et al.
    1010703.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Nov. 27, 2002.
    Daniel E. Boone, Florence, for appellant.
    Robert V. Wood, Jr., and Ruth O. Priest of Spurrier, Rice, Wood & Hall, Huntsville, for appellee The Citizens Bank.
   WOODALL, Justice.

Alafabco, Inc., appeals from the trial court’s order granting the motion of The Citizens Bank and its employees to compel arbitration of this dispute. We reverse and remand.

I. Factual Background

The relationship between the parties and the genesis of this dispute were briefly summarized in a complaint filed on November 15, 2000, by .Alafabco, Inc., and three of its officers or employees, namely, Donnie Cottingham, Joann Beck, and Weston Beck, against the Bank and a number of its employees, including Doug Alexander, Roger Campbell, and Wayne Gentry (hereinafter referred to collectively as “the Bank”). In pertinent part, the complaint alleged:

“6. In 1986, the plaintiffs and defendants entered into a quasi-contractual relationship wherein the plaintiffs secured construction contracts and the defendants provided the necessary operating capital to complete the project. Upon completion of a project, the plaintiffs repaid the funds, together with accrued interest, to the defendants.[]
“7. The plaintiffs continued to operate under the implied agreement until 1998, at which time the defendants encouraged plaintiffs to bid on a large project [for Champion International (the full and correct name of this company is not clear from the record) at its facilities in Courtland, Alabama,] and then, when plaintiffs’ bid was accepted and plaintiffs began work, the defendants refused to provide the necessary operating capital for the completion of the contract. As a result of the defendants’ breach of the agreement, the plaintiffs began to incur massive debt.”

According to Alafabco, it attempted, to compensate for the alleged breach by “using the monies provided by The Bank in the prior funding.” Appellant’s Brief, at 4. Nevertheless, it “became delinquent in repaying its existing obligations to [the] Bank.” Appellant’s Brief, at 4. Subsequently, the parties negotiated an agreement, pursuant to which “all of the loans with the Plaintiffs were restructured and redocu-mented through various notes dated May 3, 1999.” Appellees’ Brief, at ix. Along with the “renewal notes” executed as a result of these negotiations, the parties signed a document containing the following pertinent provisions:

“AGREEMENT TO ARBITRATE. The Citizens Bank (‘Lender’) and the undersigned agree that all ' disputes, claims, or controversies (‘Disputes’) between them, whether individual, joint, or class in nature, including contract and tort disputes and any other matter at law or equity, shall be resolved by arbitration upon request of either party at any time, notwithstanding the prior filing by either party of any legal action, except as otherwise indicated in this Agreement or agreed to in writing by the parties. In an arbitration, an arbitrator, who is an independent, neutral party, gives a decision after hearing the positions of the parties. It is understood and agreed that arbitration pursuant to this agreement shall be binding upon both parties and that both parties are waiving their respective rights to a jury trial. However, nothing in the loan documents or this agreement shall preclude any party from seeking equitable relief from a court of competent jurisdiction.
“GOVERNING LAW. The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration agreement. The arbitration of any dispute shall be governed by the Rules of the American Arbitration Association. If there is an inconsistency between these rules and this Agreement, this Agreement shall govern.”

Subsequently, Alafabco defaulted on its payments under the “renewal notes,” and, it alleges, the Bank published notices of foreclosure on its property. Consequently, Alafabco sought bankruptcy protection in the United States Bankruptcy Court for the Northern District of Alabama. That action was settled and Alafabco’s petition in bankruptcy was dismissed.

However, that settlement involved a second debt restructuring, evidenced by a second set of renewal notes executed December 10,1999. At that time, the amount allegedly due the Bank was approximately $430,000. The debt restructuring involved a note of the individual plaintiffs, secured by a mortgage on commercial real estate owned by Cottingham and the Becks; a note of Alafabco, secured by accounts receivable, inventory and supplies, fixtures, machinery and equipment, and motor vehicles; and a mortgage on Cottingham’s house. That same day, the parties also executed an arbitration agreement containing provisions functionally identical to the arbitration agreement signed on May 3, 1999 (the May 3, 1999, arbitration agreement and the December 10, 1999, arbitration agreement are hereinafter referred to collectively as “the Arbitration Agreements”).

The plaintiffs’ 18-count complaint, filed nearly a year after the execution of the second set of renewal notes, sought compensatory and punitive damages under multiple theories, including breach of contract, fraud, breach of fiduciary duties, defamation, conspiracy, intentional infliction of emotional distress, and interference with a contractual or business relationship. The Bank moved to compel arbitration of the dispute, based on the Arbitration Agreements. The trial court granted the motion, and Alafabco appealed.

II. Discussion

On appeal, Alafabco contends that the Arbitration Agreements are unenforceable because, it argues, the transaction at issue does not have a nexus with interstate commerce sufficient to invoke the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”). The Bank’s first response is that the agreements are enforceable whether or not the transaction has a connection with interstate commerce. This is so, because, it argues, this case involves postdispute agreements, which, it contends, are not contrary to state law. More specifically, it states: “[T]he Plaintiffs entered into the Arbitration Agreements after they had already defaulted on their various obligations to the Bank.... As a material consideration to the restructuring of [their] obligations, the plaintiffs agreed to submit any dispute heretofore or thereafter arising ... to binding arbitration.” Appel-lees’ Brief, at 2 (emphasis added). “Therefore,” the Bank continues, “the Arbitration Agreements ... were executed after a dispute had already arisen and were not subject to the [interstate-commerce] restriction” as would be the case had they been executed before the dispute. Appellees’ Brief, at 4. We disagree with the Bank — not with its characterization of the chronology of events, but with its conclusions.

Unlike predispute arbitration agreements, which contravene Ala.Code 1975, § 8-1-41(3), postdispute arbitration agreements are enforceable in Alabama, either under the Alabama Arbitration Act, Ala.Code 1975, §§ 6-6-1 to -16 (“the AAA”), or at common law. Ala.Code 1975, § 6-6-16; Fuerst v. Eichberger, 224 Ala. 31, 33, 138 So. 409, 410 (1931); Rodney-Max, “Arbitration — the Alternative to Timely, Costly Litigation,” 42 Ala. Lawyer 309, 317-18 (1981). However, there is no evidence in this case of an agreement to proceed under the AAA or the common law. On the contrary, the Arbitration Agreements provided: “The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this Agreement.” (Emphasis added.)

Moreover, the Bank did not propose in the trial court to arbitrate outside the framework of the FAA. On the contrary, it based its “Motion to Stay Action and Compel Arbitration” on the FAA, stating: “An Agreement which contains specific provisions requiring parties to Arbitrate disputes involving or [a]ffecting interstate commerce is specifically enforceable under the Federal Arbitration Act, 9 U.S.C. Section 1, et seq.; Allied-Bruce Terminix Companies v. Dobson, 513 U.S., 265 (1995).” It then cited various examples of how, in its view, “the dealings of the parties ... substantially contemplated and impacted upon interstate commerce.”

It repeated those contentions in its “Brief in Support [of the Motion] to Compel Arbitration.” There, it also argued that this case is distinguishable from Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), in which this Court determined, applying a five-part test, that the transaction at issue there did not substantially affect interstate commerce, and, therefore, that an arbitration agreement was not enforceable under the FAA. In this case, neither the motion nor the supporting brief refers to the AAA or to arbitration under the rules of common law. Clearly, the parties did not contemplate arbitration under the authority of the AAA or the common law of Alabama. Consequently, arbitration of this dispute must proceed, if at all, under the FAA.

The FAA preempts Alabama law disfavoring predispute arbitration agreements only if the dispute is subject to a written arbitration agreement “relating to a transaction substantially affecting interstate commerce.” Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001); see also F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607 (Ala.2001). The proponent of arbitration bears the burden of proving a sufficient connection with interstate commerce, Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220, 222-23 (Ala.2002); Tran-South Fin. Corp. v. Bell, 739 So.2d 1110 (Ala.1999), applying the five-part test set forth in Sisters of the Visitation.

In an attempt to carry this burden, the Bank presented the affidavit of Roger Campbell, its “president and chief executive officer.” He recited the following factors as bearing on the interstate-commerce question:

“The Citizens Bank is a lending institution which routinely conducts business in interstate commerce, such as the business conducted between it and the Plaintiffs, at issue in this litigation. The business records attached as Exhibit A and Exhibit B clearly demonstrate that a substantial portion of the money loaned by [the Bank] to Alafabco was used to finance labor and materials used by Alafabco to perform work at- a Champion International facility in North Carolina. Additionally, the security interest held by The Citizens Bank in assets of the Plaintiffs include inventory manufactured and created using subpro-ducts obtained outside the state of Alabama, utilizing raw materials manufactured outside the state of Alabama and sold through utilization of the U.S. mails, telephones and other methods of communication through interstate commerce. The security interest of The Citizens Bank and accounts receivable of the plaintiff Alafabeo, Inc., are distributed through the U.S. mails, payments are obtained through the U.S. mails and proceeds are deposited in bank accounts subject to Federal Regulations and clearance through interstate settlement procedures and policies. The debt restructuring at issue in this matter was carried out in the course of a proceeding in the United States Bankruptcy Court, a court which has a profound impact upon interstate commerce, in my judgment. Moreover, payments by and between the parties in connection with their dealing were made by check which were cleared by the Federal Reserve, using the U.S. mails and interstate financial settlement procedures and institutions. In the course of dealings between the parties, The Citizens Bank mailed notices of foreclosure and other correspondence related to the dealing between the parties through the United States Postal Service. Further, the policies and procedures governing the actions of The Citizens Bank, its officers, employees and governing the transactions between the parties to this litigation were subject to regulation by Federal Agencies and Federal Laws. Further, the loans issued by The Citizens Bank and the debt restructuring at issue facilitated the operation of Alafab-eo, Inc., which did business affecting interstate commerce, and directly engaged in interstate commerce, including contract work in North Carolina and the state of Tennessee, as demonstrated by the attached records.”

These recitations fall into six general categories, namely, (1) the nature of the Bank’s business; (2) the nature of Alafabco’s business; (3) the general “course of dealings between the parties”; (4) the use of various communication media in dealings between the parties; (5) the existence of federal regulations; and (6) the nature of the specific transaction at issue. We shall address these categories in the context of Sisters of the Visitation.

Recently, we stated:

“The test adopted in Sisters of the Visitation focuses on the quantity and quality of involvement of foreign entities with the subject transaction. Specifically, the subjects of inquiry are (1) the ‘citizenship of the parties,’ (2) the origin of any ‘tools and equipment’ actually used in the transaction, (3) the ‘allocation of cost of services and materials,’ (4) the ‘subsequent movement across state lines’ of the ‘object of the services,’ and (5) the ‘degree of separability from other contracts.’ 775 So.2d at 765-67. An analysis applying these factors is ‘necessarily fact intensive.’ Id. at 765 n. 5.”

Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220, 221 (Ala.2002).

A. Categories One, Two, and Three

The Bank argues that the overall nature of its business operations, those of Alafab-eo, and the “course of dealings of the parties” supports arbitrability. We disagree with this argument. Indeed, these factors are largely irrelevant to an FAA interstate-commerce analysis.

The FAA renders enforceable any “written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal.... ” 9 U.S.C. § 2 (emphasis added). Thus, on its face, the FAA applies only to “transactions,” “contracts,” and “controversies.”

The FAA defines “transactions” in the maritime context, as including “charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters ... which, if the subject of controversy, would be embraced within admiralty jurisdiction.” 9 U.S.C. § 1 (emphasis added). The FAA focuses on the narrow concepts of acts, omissions, or agreements, not on the broader concepts on which the Bank focuses, such as the nature of the parties’ businesses or the general “course of dealings between the parties.” Thus, the facts that the Bank “routinely conducts business in interstate commerce”; that Alafabeo owns and uses materials “manufactured outside the state of Alabama”; and that Alafabeo opérates its business with funds borrowed from the Bank cannot support arbitrability of this dispute.

Moreover, under §§ 1 and 2, the FAA applies only where the transaction affecting interstate commerce is the “subject of [the] controversy.” The relevant transactions in this case are the debt restructurings of May 1999 and December 1999, evidenced by the renewal notes and the attendant Arbitration Agreements. Indeed, the Bank characterizes the dispute as “whether Alafabeo was in default on the contracts] between it and the Bank.” Ap-pellees’ Brief, at 4. Thus, testimony regarding loans to Alafabeo cannot support arbitrability, absent a showing that — at a minimum — they were part of the restructured debt, that is, that they were somehow involved in this dispute. For these reasons, the recitations related to categories one, two, and three do not establish that the transaction had a substantial effect on interstate commerce.

B, Categories Four and Five

The Bank argues that involvement of the various forms of communication recited in Campbell’s affidavit, such as the United States Postal Service “and other methods of communication,” as well as the existence of federal regulations governing loan transactions and deposits in general, can support arbitrability. We disagree with this argument also.

Much of the rationale in the preceding section weighs with equal force against this argument. Additionally, the substantial-effect test of Sisters of the Visitation logically contemplates the converse, namely, the de minimis effect. Thus, in Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002), a plurality of this Court recently concluded that a $1,000 earnest-money deposit on the purchase of a condominium unit paid to Regions Bank, allegedly a foreign corporation, “was de minimis as compared to the entire purchase price [of $106,000 plus miscellaneous charges and fees].” 838 So.2d at 359. Consequently, the transaction did not satisfy the Sisters of the Visitation substantial-effect test. This was true, even when considered in the aggregate with “combined payments to State Farm, also a foreign corporation, ... of $217 and $214 for contents insurance and flood insurance,” and a $495 payment for a “home warranty through American Home Shield,” also a foreign entity. Morris, 838 So.2d at 359. The combined payments “representad] less than one percent of the purchase price.” Id. See also Ex parte Learakos, 826 So.2d 782 (Ala.2001) (“the ostensible transfer of the funds for the plaintiffs $1,000 earnest money payment from the drawee bank in Illinois to the Alabama payee of the check drawn in Alabama [did] not establish a substantial effect of [a] real estate sale and purchase on interstate commerce”).

The interstate communications services and sundry federal regulations on which the Bank seeks to rely touch this transaction so remotely and tangentially as to warrant no consideration. Holding that a transaction is subject to the FAA simply by virtue of the ordinary use of interstate communication media in its furtherance, or by Congressional regulation of some aspect of one party’s business, would effectively transform every “local” transaction into a “national” one. As Sisters of the Visitation points out, such an approach is impermissible under our federal system of government. 775 So.2d at 767 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)).

C. Category Six

Finally, we address the Bank’s contentions regarding the transaction at issue, specifically, Campbell’s affidavit testimony that “the loans issued by The Citizens Bank and the debt restructuring at issue facilitated the operation of Alafabco, Inc., which did business affecting interstate commerce, and directly engaged in interstate commerce, including contract work in North Carolina and the state of Tennessee, as demonstrated by the attached records.” This testimony touches on a valid consideration, and, if supported by the record, could afford a basis for arbitrability. This is so, because it suggests that part of the money specifically involved in the debt restructuring was used to finance operations in North Carolina and Tennessee.

In that connection, the record contains four invoices, three of which evidence interstate transactions. In particular, Alaf-abco invoice 676 in the amount of $39,574.36, dated August 21, 1995, is addressed to “Champion International, Main Street, Canton, NC.” The subject of invoice 676 is “Doctor Blade Maintenance, Canton Mill,” and the invoice includes an itemization of charges for materials, labor, lodging, and travel. Alafabco invoice 681 for $9,209, dated August 18, 1995, bears the same address. The subject of invoice 681 is the installation of a fan, and the prices are itemized as in invoice 676. Alaf-abco invoice 685 for $11,500 is addressed to Champion International, at its Court-land, Alabama, facility. Alafabco invoice 796, dated December 20, 1995, is addressed to “SCA Services, 6919 Flagstone Drive, Ooltewah, TN,” and is in the amount of $4,000. The subject of invoice 796 is “Agusta Newsprint Doctor Blade maintenance.”

The record further contains an instrument dated August 23, 1995, evidencing the loan of $31,659.49 from the Bank to Alafabco, namely, “Loan Number 3068814.” The instrument specifically references invoice 676. The maturity date of that loan was November 21, 1995, at which time a “single payment of all principal and interest [was] due.” The record contains a similar instrument dated August 31, 1995, evidencing the loan of $21,130.01, namely, “Loan Number 3068897.” Loan Number 3068897 specifically referenced invoice 681 and invoice 685, and exhibited a maturity date of November 29, 1995. On that date, a “single payment of all principal and interest [was] due.” These loans apparently financed the transactions evidenced by invoices 676, 681, and 685.

However, those projects all occurred in 1995, three years before the occurrence of any of the events made the basis of Alafab-co’s complaint or of the alleged defaults that precipitated the debt restructuring. There is no evidence indicating that Alaf-abco defaulted on either of those loans. Thus, for all that appears, those transactions had nothing to do with this controversy. In other words, the Bank made no showing as to what portion — if any — of Loan Number 3068814 or Loan Number 3068897 remained unpaid at the time of the debt restructuring. It made no showing as to what portion — if any — of the restructured debt was attributable to the 1995 loans. Having thus failed to show the quantity and quality of involvement of the North Carolina and Tennessee projects with the subject transaction, it showed — at most — a mere “proximity of [the subject transaction] to contracts substantially affecting interstate commerce.” Sisters of the Visitation, 775 So.2d at 767. On the state of the record, in other words, the 1995 projects are wholly “separable” from the subject transaction. Id.

Moreover, under Sisters of the Visitation and its progeny, “the simple fact that loan proceeds are ‘mobile’ does not require the conclusion that all loan transactions are inherently interstate in nature.” Alternative Fin. Solutions, LLC v. Colburn, 821 So.2d 981, 986 (Ala.2001). Compare American Gen. Fin., Inc. v. Branch, 793 So.2d 738, 747 (Ala.2000), cert. denied, 534 U.S. 949, 122 S.Ct. 342, 151 L.Ed.2d 258 (2001), in which evidence was presented that indicated that the relevant loan proceeds actually moved in interstate commerce, as did the payments. The Bank, however, made no showing that proceeds, or payments, moved in interstate commerce, that is, it made no showing of arbi-trability under the fourth Sisters of the Visitation factor (“subsequent movement across state lines”).

III. Conclusion

In short, .it is undisputed that the parties in this case are Alabama residents. The Bank did not show that any portion of the restructured debt was actually attributable to interstate transactions; that the funds comprising that debt originated out-of-state; or that the restructured debt was inseparable from any out-of-state projects. Consequently, the Bank failed to carry its burden of proof on the interstate-commerce issue.

For this reason, the trial court erred in granting the Bank’s motion to compel Alaf-abco to arbitrate its dispute with the Bank. That order is, therefore, reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

SEE, J., dissents.

SEE, Justice

(dissenting).

I believe that the majority erroneously reverses the trial court’s order compelling arbitration; therefore, I respectfully dissent.

I.

First, the arbitration agreement is not made invalid und.er Alabama law simply because it provides that “[t]he Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration agreement.” In 1986, Alafabco, Inc., and The Citizens Bank entered into a quasi-contractual relationship in which the Bank agreed to loan Alafabco funds to complete certain construction projects. In 1998, Alafabco defaulted on its obligations to the Bank. Thereafter, the parties negotiated an agreement that provided for the restructuring and redocu-menting of Alafabco’s existing debt to the Bank. As part of the debt-restructuring negotiations, Alafabco and the Bank executed “renewal notes” dated May 3, 1999, and signed an “Agreement to Arbitrate.” The arbitration agreement included the following provision:

“GOVERNING LAW. The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration agreement. The arbitration of any dispute shall be governed by the Rules of the American Arbitration Association. If there is an inconsistency between these rules and this Agreement, this Agreement shall govern.”

After the restructuring, Alafabco again defaulted on its loan, and the Bank began collection efforts. In September 1999, Alafabco filed a petition in bankruptcy pursuant to Chapter 11. The Bank moved for adequate protection of the property Alaf-abco had pledged to secure its obligations to the Bank. Alafabco and the Bank, both represented by counsel, negotiated a second debt-restructuring agreement, a second set of renewal notes dated December 10, 1999, and another arbitration agreement containing the same provisions as the May 3,1999, arbitration agreement.

Alafabco sued the Bank on November 15, 2000, and the Bank moved to compel arbitration. Roger Campbell, president and chief executive officer of the Bank, and Doug Alexander, a vice president, submitted affidavits in support of the motion to compel arbitration. Campbell and Alexander both state in their affidavits that Alafabco was “provided with a completely free choice with regard to whether to simply allow The , Bank to move forward with the legal rights it already possessed, or instead, to enter into the debt restructuring agreement at issue.” They further state that, “[a]s a part of the debt restructuring agreement, alternative dispute resolution agreements were executed.”

Alabama cases and statutes distinguish between predispute arbitration agreements, i.e., agreements executed before a dispute between the parties has arisen, and postdispute arbitration agreements, i.e., agreements to arbitrate executed after a dispute has arisen. While, under Alabama law, predispute arbitration agreements are unenforceable, agreements to arbitrate disputes that have already arisen are enforceable under the Alabama Arbitration Act (the “AAA”) and at common law. Ala. Code 1975, § 6-6-1 and § 6-6-16; Fuerst v. Eichberger, 224 Ala. 31, 33, 138 So. 409, 410 (1931). Parties that enter into such postdispute arbitration agreements are aware of the nature of the complaint they are allowing to proceed to arbitration. Ex parte Allen, 798 So.2d 668, 676 (Ala.2001)(Moore, C.J., concurring in the result).

Alafabco and the Bank entered into their arbitration agreement after their dispute had arisen. Alafabco alleges in its complaint that the Bank breached its contract with Alafabco in 1998, thus causing Alafabco to “incur massive debt.” Thereafter, because Alafabco’s loans were delinquent, the parties negotiated the debt-reconstruction agreement that provided for the execution of the renewal notes and the arbitration agreement. The arbitration agreement provides: “The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration agreement.”

The main opinion concludes that “there is no evidence in this case of an agreement to proceed under the AAA or the common law.” I am unaware of any authority, and the majority cites none, that requires that for a contract to be enforceable under Alabama law, the parties must affirmatively assert that they choose to proceed under Alabama law. In fact, if this Court concludes that federal law does not apply in this case, then, unless the law of some other jurisdiction is implicated, the agreement is not' lawless, but, instead, it is subject to the application of Alabama law. See Cherry, Bekaert, & Holland v. Brown, 582 So.2d 502 (Ala.1991)(stating that, while the parties normally are allowed to choose what law they wish to apply to their agreement, Alabama law will govern the agreement if the parties’ choice wotild run contrary to the public policy of Alabama), see also Restatement (Second) of Conflict of Laws § 187 (1977);' 8 Samuel Williston, Williston On Contracts § 19:6 (Richard A. Lord, 4th ed.1998).

For the reasons I recite below, I believe that the Federal Arbitration Act governs this contract dispute, but, if, as the majority concludes, it does not, then, the agreement is governed by Alabama law. Under Ala.Code 1975, § 6-6-16, the parties entered a binding contract to arbitrate an existing dispute. They incorporated into them contract, by reference, the terms of the Federal Arbitration Act and the rules of the American Arbitration Association:

“The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration agreement. The arbitration of any dispute shall be governed by the Rules of the American Arbitration Association.”

This Court should construe those terms to give effect to the intent of the parties to enter a binding agreement; thus, I believe the contract incorporates by reference the rules under which the parties intended the arbitration agreement to be interpreted. I am unaware of any authority, and the majority cites no authority, that stands for the proposition that these rules of construction, interpretation, and enforcement run contrary to the public policy of Alabama.

II.

Second, the dispute the parties agreed to arbitrate “involves commerce” and is, therefore, subject to the Federal Arbitration Act.

This Court reviews de novo a trial court’s denial of a motion to stay its proceedings pending arbitration. Tefco Fin. Co. v. Green, 793 So.2d 755 (Ala.2001); Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999). This Court has held that “ ‘to prevail on an assertion of arbitrability, the moving party is required to produce some evidence which tends to establish its claim,’” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala. 1995) (opinion on application for rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)), and “ ‘has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce,’ Tefco Fin. Co. v. Green, 793 So.2d at 758 (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)(emphasis added)).

In Sisters of the Visitation v. Cochran, 775 So.2d 759, 763 (2000), the Sisters of the Visitation had contracted with an instate contractor to renovate a chapel located in Alabama and owned by the Sisters. Pursuant to an arbitration provision in the contract, the Sisters sought arbitration of their dispute with the contractor. In my dissent in that case, I noted that the majority held that the Federal Arbitration Act can apply to a contract only if that “individual transaction ‘substantially affect[s]’ interstate commerce.” 775 So.2d at 782. Since our decision in Sisters of the Visitation in March 2000, this Court has routinely denied a party the right to arbitration where that party has failed to prove that the individual transaction substantially affected interstate commerce. See Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002) (denying arbitration in an action brought by the purchaser of a condominium unit against a real estate brokerage, a real estate agent, and the condominium association); Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002) (refusing to compel arbitration where an employee of an insurance company sued her employer); Ex parte Kampis, 826 So.2d 819 (Ala.2002) (denying arbitration in an action brought by the purchaser of a house against a contractor); Alternative Fin. Solutions, LLC v. Colburn, 821 So.2d 981 (Ala.2001) (denying arbitration where borrowers brought an action against lenders challenging the legality of certain loans); and Ex parte Learakos, 826 So.2d 782 (Ala.2001)(denying arbitration in an action brought by the purchaser of a house against a real estate company and its agents).

The Supreme Court of the United States stated in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), that in order for a federal statute that regulates commercial transactions to be a valid exercise of Congress’s Commerce Clause power, the aggregate nationwide participation in that activity' — not the individual transaction in isolation — must “substantially affect” interstate commerce. Lopez, 514 U.S. at 556-57, 115 S.Ct. 1624. This “substantial-effect” test — used to determine the constitutionality of a statute under the Commerce Clause — was not a new standard created in Lopez, but has been the test of a statute’s constitutionality since the early twentieth century. Id. at 555-57, 115 S.Ct. 1624.

Once it has been determined that Congress acted within its Commerce Clause power in enacting a statute, whether that statute reaches certain activities does not depend on whether that individual act, when considered separately from all similar acts, has a substantial effect on commerce. As Wickard v. Filbum, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), made clear, Filburn’s “trivial” wheat production could be reached by the Agricultural Adjustment Act. The standard established by the Supreme Court of the United States is that “ ‘where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)).

The standard for the application of the Federal Arbitration Act to an individual contract was made clear to us in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 267, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). The Federal Arbitration Act provides in pertinent part that “a contract evidencing a transaction involving commerce ... shall be valid....” 9 U.S.C. § 2 (emphasis added). The Supreme Court of the United States held in Allied-Bruce Terminix that the requirement of the Federal Arbitration Act that an individual contract involve interstate commerce should be read in the broadest possible terms because the word “involving” signals an intent to “exercise Congress’ commerce power to the full.” 513 U.S. at 277, 115 S.Ct. 834. The Court also stated that a contract, to be subject to the Federal Arbitration Act, did not have to evidence a transaction that was “substantially interstate.” 513 U.S. at 269, 115 S.Ct. 834.

Thus, I believe this Court erred when it held in Sisters of the Visitation that a particular contract, in order to be enforceable under the Federal Arbitration Act must, by itself, have a substantial effect on interstate commerce, and this Court errs again today by applying the Sisters of the Visitation standard to this case.

Campbell states in his affidavit that “pri- or to May 3, 1999, [Alafabco] borrowed substantial funds from The Bank, on multiple occasions, for the purposes of covering business operation expenses, including labor and material expense for performing jobs for Champion International at that entities [sic] Kenton, North Carolina facility, as well as the Courtland, Alabama facility. These loans were not repaid at the time Alafabco began Chapter 11 bankruptcy proceedings.” Campbell and Alexander both state in their affidavits that, “the loans issued by The Citizens Bank and the debt restructuring at issue facilitated the operation of Alafabco, Inc., which did business affecting interstate commerce, and directly engaged in interstate commerce, including contract work in North Carolina and the state of Tennessee, as demonstrated by the attached records.”

Attached to Campbell’s affidavit are invoices of interstate transactions. The invoices indicate that Alafabco sold equipment and materials and provided services to Champion International in Canton, North Carolina, and Ooltewah, Tennessee.

Based on the foregoing evidence presented by the Bank in support of its motion to compel arbitration, I conclude that the Bank presented the requisite “ ‘some evidence which tends to establish [its] claim,’ ” Jim Burke Auto., 674 So.2d at 1265 (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)), indicating that the Bank’s loans to Alafab-co “involve commerce.” Therefore, I would affirm the trial court’s decision to compel arbitration.

      . The bank loans were secured by invoice numbers of the jobs to be performed by Alaf-abco. Appellant's Brief, at 3.

      . In fact, we need not — and do not — decide whether the Arbitration Agreements are pre-dispute or postdispute agreements.

      . Williston writes:
      "The reasoning behind the Restatement rule that where the parties have chosen a law that would render the contract invalid, their choice will not be applied unless it would have applied absent their agreement is that the parties would not purposely have chosen a law that would' invalidate a bargain, and that their (apparently) mistaken choice should be ignored in favor of protecting their expectation that they entered an enforceable bargain.”
      8 Williston, § 19:6, at 161-63 (footnote omitted).

      . See Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000)(stating that 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 contract and that will give effect and meaning to all of its terms).


author: WOODALL, Justice.

text:
    ALAFABCO, INC. v. The CITIZENS BANK et al.
    1010703.
    Supreme Court of Alabama.
    Aug. 29, 2003.
    Daniel E. Boone, Florence, for appellant.
    Robert V. Wood, Jr., and Ruth O. Priest of Spurrier, Rice, Wood & Hall, Huntsville, for appellee The Citizens Bank.
   On Remand from the United States Supreme Court

WOODALL, Justice.

In accordance with the June 2, 2003, opinion and order of the United States Supreme Court, we vacate the judgment of this Court, which reversed the trial court’s order granting the motion of The Citizens Bank (“the Bank”) to compel Alaf-abco, Inc., to arbitrate its dispute with the Bank and its employees. Alafabco, Inc. v. Citizens Bank, 872 So.2d 798 (Ala.2002). The Supreme Court held that the transaction at issue had a nexus with interstate commerce sufficient to invoke the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Therefore, finding no merit in any other arguments against the arbitrability of the claims asserted against the Bank and its employees by Alafabco, we affirm the trial court’s order directing the parties to proceed to arbitration.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003).


author: SEE, Justice. MOORE, Chief Justice WOODALL, Justice

text:
    Ex parte OCWEN FEDERAL BANK, FSB. (In re Lee Dowdle and Kimberly Dowdle v. Aurora Loan Services, Inc., et al.)
    1002225.
    Supreme Court of Alabama.
    March 28, 2003.
    As Modified on Denial of Rehearing Aug. 29, 2003.

      . Forrest S. Latta, Goodman G. Ledyard, W. Perry Hall, and Michael D. Strasavich of Pierce, Ledyard, Latta, Wasden & Bow-ron, P.C., Mobile; and Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for petitioner.
    R. Cooper Shattuck and Jane L. Cala-musa of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for respondent.
   SEE, Justice.

Ocwen Federal Bank, FSB (“Ocwen”), petitions this Court for the writ of mandamus directing Judge James Moore of the Fayette Circuit Court to vacate his order, dated August 15, 2001, denying Ocwen’s motion for a protective discovery order. Ocwen argues that the trial court erred (1) by ordering “pattern and practice” discovery, and/or (2) by failing to tailor the discovery order to protect Ocwen’s interests and those of its customers. We deny the petition.

I.

On June 24, 1998, Lee Dowdle and Kimberly Dowdle executed a promissory note, secured by .a mortgage on their home, to Johnson & Associates Mortgage Company, Inc. (“Johnson”). The truth-in-lending disclosure statement they received in connection with the execution of the note provided that a penalty would not be assessed if they paid the loan off before its maturity date. Johnson assigned its rights under the promissory note and mortgage to Mor-cap, Inc. (“Morcap”).

Aurora Loan Services, Inc. (“Aurora”), began to service the Dowdies’ loan on Morcap’s behalf. In April 1999, the Dowdies decided to refinance their loan with a different lender. In order to refinance, the Dowdies had to pay off their original note before its maturity date. When the Dowdies received the payoff balance from Aurora, it included a prepayment penalty. The Dowdies sent a check to Aurora for the payoff balance after deducting an amount for the prepayment penalty. Aurora returned the check to the Dowdies because, it stated, the amount of the check was insufficient to pay off their loan. The Dowdies sent the check to Aurora again. This time, Aurora accepted it but stated that it would continue to seek collection of the prepayment penalty.

On July 23, 1999, the Dowdies sued Aurora, Southern Pacific Funding Corporation, Johnson, Morcap, and other fictitiously named defendants. As amended, the Dowdies’ complaint alleges misrepresentation; suppression; breach of contract; breach of fiduciary duty; negligence; wantonness; intentional infliction of emotional distress; violations of Alabama’s Mini-Code, § 5-19-1 et seq., Ala. Code 1975; conspiracy; money paid by mistake; conversion; and defamation. The Dowdies also sought to certify a class.

In September 1999, after Ocwen replaced Aurora as the servicer of the Dowdies’ loan, the Dowdies began receiving statements from Ocwen. The first statement the Dowdies received' from Ocwen showed that they owed $3,948.63; that amount included interest in the amount of-$933.49. After receiving the statement, the Dowdies contacted Ocwen to inform it that the debt was the subject of a legal action and that they were represented in that action by legal counsel. On October 19, 1999, the Dowdies’ attorney sent a letter to Ocwen, explaining that the debt it was attempting to collect from the Dowdies was disputed and was the subject of pending litigation. Nonetheless, Ocwen continued to send the Dowdies monthly statements, increasing the past-due amount by $1,091.49 each month and assessing the Dowdies a late charge. Ocwen also contacted certain credit agencies to inform them that the Dowdies were delinquent in paying the amounts they owed it.

On May 2, 2000, the Dowdies amended their complaint to add Ocwen as a defendant. On June 2, 2000, the Dowdies submitted interrogatories and document requests to all the defendants. On June 28, 2000, Ocwen moved for a protective order to stay discovery; the trial court conditionally granted the order on September 11, 2000, pending receipt of discovery from the remaining defendants. The trial court lifted the stay on February 6, 2001. On March 19, 2001, the trial court entered a discovery scheduling order, requiring the completion within 120 days of all discovery concerning the merits of the Dowdies’ claims and the certification' of the purported class.

On May 14, 2001, Ocwen filed a response to the Dowdies’ June 2, 2000, discovery request. That response contained a general objection to each of the Dowdies’ requests. On May 21, 2001, Ocwen moved for a protective order to stay discovery until the trial court decided whether to certify the purported class. On May 31, 2001, the Dowdies moved to compel Ocwen to respond to the outstanding discovery-request. - On August 15, 2001, the trial court denied Ocwen’s motion for a protective order and granted, with limitations, the Dowdies’ motion to compel. On September 26, 2001, Ocwen petitioned this Court for the writ of mandamus. On October 22, 2001, we ordered answer and briefs.

II.

Mandamus is an extraordinary remedy and will be granted only where there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandámus where the petitioner has “ ‘full and adequate relief ” by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).

Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.

Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) (“Mandamus disrupts the trial proceedings, forcing the parties to address in an appellate court issues that otherwise might have been resolved as discovery progressed and the evidence was developed at trial.”). In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001) (“If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal.”); (b) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party, see, e.g., Ex parte Compass, 686 So.2d 1135, 1138 (Ala.1996) (request for “every customer file for every variable annuity” including annuity products the plaintiff did not purchase); (e) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court imper-missibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992). We deny Ocwen’s petition because Ocwen has not demonstrated to this Court that an appeal would not afford it a full and adequate remedy.

III.

Ocwen argues first that “pattern and practice” discovery is inappropriate and overly burdensome in this case because, Ocwen claims, the Dowdies have no sustainable fraud claim against it. Thus, mandamus is arguably appropriate because the discovery order compels the production of patently irrelevant or dupli-cative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party.

Ocwen contends it did not commit fraud in regard to the Dowdies because the undisputed evidence in the case shows that the Dowdies could not have reasonably relied on Ocwen’s alleged misrepresentation. The Dowdies’ failure to offer evidence of their reliance on Ocwen’s allegedly false representations, however, is a basis on which Ocwen could have moved for a summary judgment on the Dowdies’ misrepresentation claim. Therefore, granting Ocwen’s petition for a writ of mandamus on this basis would be the functional equivalent of this Court’s entering an unsolicited summary judgment for Ocwen on the Dowdies’ misrepresentation claim. Moreover, because the trial court has not made any findings of fact as to this argument, issuing the writ of mandamus on the basis that the Dowdies failed to offer evidence of their reliance on Ocwen’s misrepresentations would be substituting our judgment for that of the trial court. Because Ocwen has not succeeded in moving for a summary judgment in the trial court, Ocwen has not shown that the trial court exceeded its discretion in denying its motion for a protective order.

Ocwen next argues that disclosure of its customer lists would be oppressive and overly burdensome. As plaintiffs in a fraud action, the Dowdies are “entitled to broader discovery than would normally be allowed.” Ex parte Henry, 770 So.2d 76, 80 (Ala.2000).

“ “When the discovery request of a plaintiff alleging fraud is closely tailored to the nature of the fraud alleged, the discovery should be allowed in full, as long as the party opposing discovery does not show that the requested discovery is oppressive or overly burdensome.’ ”

770 So.2d at 80 (quoting Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)).

In the Henry case, a life-insurance company credited a policyholder for only 5 policy payments, although she had made 12. The policyholder sued the life-insurance company and its agent, alleging misrepresentation, deceit, and fraudulent suppression. During discovery, the policyholder submitted interrogatories to the life-insurance company requesting the name of every person who since 1992 had purchased a policy from the life-insurance company through the particular agent who sold the policyholder her policy. The trial court limited the policyholder’s request to the names of persons in Alabama who had purchased such policies. The policyholder then petitioned the Court for a writ of mandamus. We held that the trial court properly limited the policyholder’s discovery requests to the names of persons in Alabama.

Similarly, in this case the trial court restricted to five years the period as to which the Dowdies were entitled to discovery and limited the scope of their discovery to Ocwen’s customers who lived in Alabama or whose collateral was located in Alabama. The limitations imposed by the trial court in this case are not markedly different from those imposed by the trial court in Henry. Ocwen has not demonstrated that the discovery order is overly burdensome or oppressive to it, and we do not so conclude.

Ocwen also argues that the trial court’s order requiring it to produce a list of prior consumer-protection or financing-agency complaints against it and a list of lawsuits brought during the past five years is unduly burdensome. However, this argument is unsupported by the evidence. “[A] general statement of inconvenience” does not provide the court with a sufficient basis for finding that a discovery request is oppressive or burdensome. Ex parte Union Sec. Life Ins. Co., 723 So.2d 34, 39 n. 1 (Ala.1998). Without more specific allegations regarding the Dowdies’ requests number 12 and 13 (see note 8), we cannot conclude that the trial court’s discovery order imposes such a burden or expense on Ocwen as to be oppressive.

IV.

The trial court ordered Ocwen to “[p]roduce any and all documents ... which address .or refer to the assessment, calculation, or collection of any penalty prepayment [sic], finance charge or other fee or charge in addition to the principal sum_” Ocwen.argues that the method by which it assesses, calculates, and collects prepayment penalties is entitled to protection from disclosure because, it says, that method is a trade secret. As we note above, relief by an appeal from a trial court’s order in disregard of a privilege, such as requiring disclosure of a trade secret, may be inadequate. “ ‘Once the [trade-secret] information becomes available through the discovery process, a subsequent appeal, even if successful, cannot restore [its] valuable secretive nature.’” Miltope, 823 So.2d at 645 (quoting Nester v. Lima Mem’l Hosp., 139 Ohio App.3d 883, 888, 745 N.E.2d 1153; 1157 (2000) (Walters, J., dissenting)).

The mere recitation, however, that certain information is a trade secret does not automatically bestow immunity from disclosure. “[T]o receive protection under the [Alabama Trade Secrets Act]” the person or entity attempting to exercise the privilege must show that the information sought to be protected satisfies the definition of a trade secret. Cmt. to § 8-27-2, Ala.Code 1975.

In Miltope, we held that a company was not required to produce board minutes and sales orders because those documents contained trade secrets. 823 So.2d at 645. A key factor in our decision in Miltope was that the company seeking trade-secret protection specifically demonstrated why the minutes of its board of directors and its sales orders were trade secrets. Ocwen fails to show in its petition how the manner in which it assesses, calculates, and collects prepayment penalties is a trade secret. Therefore, Ocwen has failed to demonstrate that it is entitled to trade-secret protection.

V.

Because Ocwen has not demonstrated that the trial court clearly exceeded its discretion in denying Ocwen’s motion for a protective order and that an appeal would be an inadequate remedy in this case, it has not demonstrated a clear legal right to the extraordinary relief it seeks. Consequently, we deny Ocwen’s petition for the writ of mandamus.

PETITION DENIED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., and WOODALL, J., concur in the result.

MOORE, Chief Justice

(concurring in the result).

This Court has stated: “Ordinarily, we would not review rulings regarding discovery proceedings in the trial courts.” Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981). Further:

“The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful. Lassiter v. Wemeth, 275 Ala. 555, 156 So.2d 647 (1963).”

397 So.2d at 102. It is not the business of this Court to look over the shoulder of a trial judge or to question every decision a judge makes just because a party is dissatisfied. The mere fact that this Court is designated the “Supreme” Court does not mean that a nine-member court is wiser or more intelligent than a trial judge, especially when the trial judge has the opportunity to observe the parties and the witnesses and has to deal with discovery matters on a daily basis.

Historically, discovery matters were generally not the subject of a writ of mandamus, as illustrated in Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (Ala.1967). In that case this Court stated:

“A Petition for Mandamus constitutes a first pleading in the case and the petition itself must show by averments a right to have the act complained of performed, and if the averments do not show such a right, the petition should be dismissed, although those averments are not controverted or denied. Lawson v. Swift, 280 Ala. 227, 191 So.2d 379 [ (1966) ], Paragraphs 2 and 3.
“This is nonetheless true although Alabama seems to have enlarged the scope or field for the issuance of the writ of mandamus as shown by the provisions of Section 1072 of Title 7 of the Alabama Code[] and the annotations under the heading ‘Mandamus,’ under said Section 1072 of Title 7 of the Alabama Code (Volume 3 of the Code, Page 1050) as well as by the cases of Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836 [(1894)]; Wilson v. Duncan, 114 Ala. 659, 672, 21 So., 1017 [ (1897) ], and Ex parte Laurie, 277 Ala. 137, 140, 167 So.2d 705, 707 [(1964)]. But we need not decide whether or not a writ of mandamus is always limited to cases where an abuse of discretion is shown on the part of the lower tribunal. The question here is whether or not the issuance of a writ of mandamus is so limited where the rulings sought to be reviewed are under the deposition statute.
“In such cases we think that the issuance of the writ is limited to those where an abuse of discretion is shown. See Ex parte Cypress, 275 Ala. 563, 156 So.2d 916 [ (1963) ], Paragraphs 4 and 5 where Mr. Justice Harwood states: ‘However, even under a liberal interpretation of our deposition-discovery statute, we are unwilling to say that the court abused its discretion in the above ruling.’
“The principle is expressed in 23 Am. Jur.2d on Page 665, Section 270, as follows:
“ ‘It is for the trial court, not the appellate court, to pass upon any specific question presented on an application for discovery or upon any question when a particular requirement is too broad. Generally, the trial court’s execution of this discretion in applying of discovery rules or in deciding whether or not to order or limit discovery will not be disturbed unless an abuse of such discretion is shown.’
“The Alabama statute is patterned after Federal Rule 26(b) and our courts have heeded the construction placed upon the Federal Rule. In ‘Judicial Control Over Discovery,’ 28 F.R.D. 111, 116, Judge Kaufman said—
“ ‘The whole discovery procedure contemplates an absence of judicial intervention in the run-of-the-mill discovery attempt.’
“Speaking of the resort to mandamus under the federal rules, Prof. Moore (Yol.4, p. 1743) quotes the United States Supreme Court as saying:
“ ‘In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous. The supplementary review power conferred on the courts by Congress in the AJ1 Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or, “usurpation of judicial power.” ’

280 Ala. at 589, 196 So.2d at 704-05.

While I agree with the holding of the majority and sympathize with the rationale it uses as an attempt to provide guidelines that limit the abusive filing of petitions for a writ of mandamus in discovery matters, I do not agree that creating a rule under which such petitions may be considered by this Court is wise. Unless strictly construed, exceptions tend to swallow the rule, leading to even greater abuse. This Court itself should be able to restrict the abuse of using petitions for a writ of mandamus in discovery matters by restricting the use of extraordinary writs to extraordinary instances and by recognizing that an appeal is in almost all cases an adequate remedy.

Therefore, I concur only in the result.

WOODALL, Justice

(concurring in the result).

The Dowdies submitted a discovery request to Ocwen on June 2, 2000. Because Ocwen failed to object to the discovery in a timely manner, it waived the right to object in its May 14, 2001, response to the discovery request and in its petition for a writ of mandamus. Therefore, Ocwen has not shown a clear legal right to have the trial court vacate its order denying Ocwen’s motion for a protective order. Seeing no reason for this Court to address any other issue, I respectfully concur only in the result.

      . Ocwen claims that the promissory note did allow for the assessment of a prepayment penalty.

      . It is not clear from the facts submitted by the parties how Southern Pacific Funding Corporation is connected to the refinancing transaction.

      . This amount included "principal and interest” of $933.49 and an escrow charge of $158.

      . The trial court limited the Dowdies' discovery request to loans serviced or held by Ocwen during the five years before it was added as a defendant in the case. Alternatively, if Ocwen could not respond to the discovery request, as limited, the trial court further limited the request to those loans the debtors for which were residents of Alabama or for which the property securing the loans was located in Alabama.

      . “Writs of mandamus and prohibition ... are extraordinary remedies and will not ordinarily afford appellate review of discovery orders.” 6 Moore’s Federal Practice § 26.07[4] (Matthew Bender 3d ed.) (December 2002) (footnotes omitted).

      . We note that in the trial court's August 15, 2001, order denying Ocwen’s motion for a protective order, the trial court also denied Ocwen’s motion for a summary judgment. Ocwen does not include in its petition a copy of the summary-judgment motion; therefore, we do not know on what basis it moved for a summary judgment. The petitioner has the responsibility of supplying the Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition. Rule 21(a), Ala. R. App. P. Because Ocwen has not supplied the Court with an adequate record as to the basis on which it moved for a summary judgment, this Court is unwilling to engage in conjecture as to what that basis might have been.
      Nonetheless, a petition for the writ of mandamus in this instance is not the proper vehicle for appealing the denial of motion for a summary judgment. Subject to narrow exceptions that are not applicable in this case, "a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.” Ex parte Liberty Nat’l Life Ins. Co., 825 So. 2d 758, 762 (Ala. 2002) (citations omitted). If Ocwen is dissatisfied with the part of the order denying its motion for a summary judgment, then it has an adequate remedy by way of an appeal.

      . The Dowdies requested the following disclosure:

        "2. List the names, addresses and telephone numbers of all individuals in Alabama executing promissory. notes and/or giving mortgages held or serviced by [Ocwen] since January 1, 1990.
      "3. List the names, addresses and telephone numbers for each individual who has paid off, satisfied or refinanced since January 1, 1990 any promissory note held or serviced by [Ocwen].
      "[Supp.] 3. Identify (list the name, address and telephone number) each borrower for whom you originated, assessed, demanded or collected a pre-payment penalty, for the pre-payment of a loan, whether secured by a mortgage or not, in the State of Alabama, since January 1, 1990.”

      . The Dowdies’ discovery request with regard to production of this information read:
      "12. Have you ever been charged, investigated or had any inquiries by any consumer protection or financing agency or department or ever been charged (officially or unofficially, formally or informally, by a governing or enforcement authority or otherwise) with a violation of any rules, regulations, or guidelines of consumer protection or financing agency or department? If so, state the details of each.
      "13. Have you been sued in the past five (5) years? If so, state the details of each lawsuit, including but not limited to the court in which the lawsuit was pending, the case or docket number, the parties to the lawsuit and the claims made in the' lawsuit.”

      . Ocwen has not submitted evidence of the burden, if any, of producing the lists of consumer-agency complaints and, lawsuits.

      .Section 8-27-2(1), Ala.Code 1975, states:
      “A 'trade secret’ is information that:
      "a. Is used or intended for use in a trade or business;
      "b. Is included or embodied in a formula, pattern, compilation, computer software, drawing, device, method, technique, or process;
      "c. Is not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret;
      "d. Cannot be readily ascertained or derived from publicly available information;
      "e. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and
      "f. Has significant economic value.”

      . We also note that the privilege is not absolute. Rule 507, Ala. R. Evid., provides that a "person has a privilege ... to refuse to disclose ... a trade secret ... [only] if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.”

      . Because we conclude that the trial court did not exceed its discretion in denying Ocwen's motion for a protective order, we do not address the Dowdies' claim that Ocwen waived any objections to their discovery request by failing to object in a timely manner. See Rule 34(b), Ala. R. Civ. P.

      . Now § 6-6-640, Ala. Code 1975.

        Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383-384, 74 S.Ct. 145, 98 L.Ed. 106 [(1953)].”