author: HARWOOD, Justice.

text:
    ARONOV REALTY BROKERAGE, INC. v. Dorothy D. MORRIS. Benjamin Vance v. Dorothy D. Morris. Havenwood Village, Inc., et al. v. Dorothy D. Morris. Elizabeth Maxwell v. Dorothy D. Morris.
    1001292, 1001650, 1001733 and 1010456.
    Supreme Court of Alabama.
    April 26, 2002.
    Rehearing Applications Denied June 14, 2002.

      William Dudley Motlow, Jr., and Christopher N. Smith of Porterfield, Harper & Mills, P.A., Birmingham, for appellant Ar-onov Realty Brokerage, Inc.
    William R. Chandler, Montgomery, for appellant Benjamin Vance.
    Christopher J. Hughes of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellants Havenwood Village, Inc.; Havenwood Village Condominiums Association, Inc.; Havenwood Village Condominium; Janice Vance; Arthur D. Baylor; and Barry D. Ross.
    William Dudley Motlow, Jr., Christopher N. Smith, and Kathryn L. Harman of Porterfield, Harper & Mills, P.A., Birmingham, for appellant Elizabeth Maxwell.
    John N. Pappanastos and Janie Salmon Gilliland of Pappanastos, Wilson & Associates, P.C., Montgomery, for appellee.
   HARWOOD, Justice.

The defendants in these four consolidated cases: (1) Aronov Realty Brokerage, Inc. (hereinafter individually referred to as “Aronov”)(case no. 1001292); (2) Benjamin Vance (case no. 1001650); (3) Havenwood Village, Inc., Havenwood Village Condominium Association, Inc., Havenwood Village Condominiums, Janice Vance, Arthur D. Baylor, and Barry D. Ross (hereinafter collectively referred to as “Haven-wood”)(case no. 1001733); and (4) Elizabeth Maxwell (case no. 1010456) (all these defendants hereinafter sometimes collectively referred to as “the defendants”) appeal the trial court’s denial of their motions to compel arbitration. We affirm.

I. Facts and Procedural History

On August 25, 2000, Dorothy D. Morris filed a complaint in the Circuit Court of Montgomery County against Aronov, Benjamin Vance, and Havenwood, alleging fraud, negligence, negligent supervision and training, misrepresentation and suppression, breach of fiduciary duty, wantonness, conversion, conspiracy, and breach of contract, all in regard to her purchase of a condominium unit. Benjamin Vance, Janice Vance, Baylor, and Ross were sued individually as members of the board of directors of the Havenwood Village Condominium Association, Inc., and were specifically named in those counts of Morris’s complaint alleging breach of fiduciary duty and conversion. Maxwell, identified in Morris’s complaint as an employee or agent of Aronov and Havenwood Village, Inc., was subsequently added as a defendant when the trial court granted Morris’s motion to amend her complaint on February 6, 2001. Morris’s complaint alleged that she had purchased a condominium unit at the Havenwood Village Condominiums in reliance upon certain representations made by Maxwell, acting within the scope of her employment or agency with Aronov and Havenwood Village, Inc. Morris’s complaint further alleged that at the closing of her condominium purchase, Maxwell and Janice Vance reaffirmed those representations in regard to the condominium development. She alleged that condominium units and buildings were not completed as had been represented and that certain amenities that had been represented to be part of the condominium development were not provided.

Attached to Morris’s complaint was a copy of a “Real Estate Purchase/Sales Contract” (hereinafter referred to as “the agreement”). The agreement lists Morris as the “purchaser,” Havenwood Village, Inc., as the “seller,” and Aronov as the “listing” and “selling” company. The agreement provides that the condominium unit was located at 5914 Havenwood Drive in Montgomery, Alabama. It shows that Morris was to pay $1,000 as an earnest-money deposit to be followed at closing by a payment of $105,495. The agreement was signed by Morris, with Maxwell signing as a witness, on April 29, 1998. On May 8, 1998, Benjamin Vance signed the agreement on behalf of Havenwood Village, Inc., with Maxwell again signing as a witness. The agreement contained the following arbitration clause:

“16.B. CONTROVERSIES, CLAIMS, COMPLAINTS, OR DISPUTES ARISING IF PROPERTY IS CLOSED, AND DEED HAS BEEN DELIVERED TO PURCHASER/S / BINDING ARBITRATION AGREEMENT:
“The parties agree that the property sold has been involved in, and necessarily involves, interstate commerce, and that any controversy, claim, complaint, or dispute arising between the parties, or between either of the parties and any real estate licensees, if the property has been closed, and the deed has been delivered to the purchaser/s, is to be settled exclusively by binding arbitration. Purchaser/s and Seller/s specifically waive any rights they have to commence an action other than arbitration against each other or any real estate licensees. Any controversies, claims, complaints, or disputes arising if the property has been closed, and the deed has been delivered to purchaser/s, evolving out of or relating to this contract or breach thereof, shall be settled under the Commercial Arbitration Rules then in force of the American Arbitration Association, and all parties agree to be bound by the decision of this arbitration. The decision of the Arbitrator shall be a final and binding resolution, which may be entered as a judgement by a court of competent jurisdiction; and may then be enforced by use of legal remedies. Furthermore, in all events, no parties shall be liable for any indirect, special, consequential, or punitive damages or loss of anticipated profits.”

The agreement also contained a section entitled “additional provisions” in which the following, in pertinent part, was handwritten:

“1 — Seller to provide 4 year home warranty to be written by selling agent!;] 2 — Seller to provide satisfactory termite inspection letter; & Seller to provide copy of survey at close; Condo Association to provide for exterior of unit at close; Contract subject to verification of what monthly condo fee includes & amount to be charged & acceptance of same by Purchaser. Purchaser to provide proof of condo insurance at closing, with minimum building coverage of $15,000 & minimum personal liability coverage of $100,000 & provide proof of renewal annually to Havenwood Condo Assoc.;_ Subject to addendums attached:”

Morris also attached to her complaint an “Addendum To Purchase Agreement” (hereinafter referred to as “the addendum”) signed by her and Benjamin Vance, on behalf of Havenwood Village, Inc., with Maxwell’s signature appearing as a witness. The addendum was dated April 29, 1998, below Morris’s signature, but no date appeared below Benjamin Vance’s signature. The addendum contained the following handwritten agreements:

“1) Seller to sod backyard!;] 2) Seller to install higher toilet in master bedroom bath & Purchaser will pay difference in cost[;] 3) Seller to install window screens, mailbox at street, & garbage can with handle that rolls[;] 4) Seller to repair broken brick on side of unit by A/C and all gaps in any other brick; Seller to putty, sand & paint molding above kitchen stove (crack)[;] Seller to paint front door hunter green color same as 2 bedroom model[;] 6) Seller to install safety rails in bath showers.... ”

Based upon the language of the addendum, we infer that Morris’s condominium unit was substantially completed on April 29, 1998, when she signed the agreement and addendum, and that even more had been done by May 8, 1998, when Benjamin Vance signed the agreement. Morris’s complaint stated that the closing occurred on June 3, 1998, in Montgomery, Alabama, and that date is confirmed by a “Settlement Statement” signed by Janice Vance on behalf of Havenwood Village, Inc., and Morris.

A. Aronov’s Motion

On September 21, 2000, Aronov filed a motion to dismiss Morris’s complaint and to compel arbitration, arguing, among other things, that the arbitration clause in the agreement required that Morris’s claims be submitted to arbitration, that the parties had agreed that the sale of the condominium involved interstate commerce, and that the agreement did, in fact, involve interstate commerce because the condominium had been built with materials that were transported in, and involved, interstate commerce and because out-of-state companies had provided Morris with an appraisal and the builder with liability insurance coverage. On February 16, 2001, Aronov filed its “Notice of Filing Supporting Materials” (hereinafter referred to as the “notice of filing”), referencing and attaching a number of exhibits in support of its motion to compel arbitration.

On February 26, 2001, Morris filed what she termed a “supplement” to her objection to Aronov’s motion to dismiss and to compel arbitration, referencing a December 11, 2000, objection filed by her. Morris attached no documentary evidence as an exhibit to her supplement. The supplement consisted only of argument and attached copies of supporting caselaw. On March 5, 2001, the trial court entered an order denying Aronov’s motion.

B. Benjamin Vance’s Motion

On April 26, 2001, Benjamin Vance filed a motion to dismiss and to compel arbitration, arguing that the arbitration clause in the agreement required that Morris’s claims be arbitrated and adopting and incorporating by reference Aronov’s previously filed motion to compel arbitration and the supporting materials filed with that motion. Morris filed no response to Vance’s filing. The trial court denied Benjamin Vance’s motion on May 8, 2001.

C. Havenwood’s Motion

On May 21, 2001, Havenwood filed a motion to dismiss and to compel arbitration with a supporting brief and attached exhibits. That motion also incorporated by reference the materials that had been submitted in support of Aronov’s motion to compel arbitration. Morris filed no response to Havenwood’s filing. The trial court denied Havenwood’s motion on June 1, 2001.

D. Maxwell’s Motion

On October 12, 2001, Maxwell filed a motion to dismiss and to compel arbitration; the motion had no exhibits attached, but it referenced the agreement that was attached to Morris’s complaint. Maxwell failed to adopt, in support of her motion, any materials that had previously been submitted by any of the other defendants. Again, Morris made no response. The trial court denied the motion on October 18, 2001.

On appeal, the defendants all argue that the trial court erred in denying their respective motions to compel arbitration.

II. Analysis

Our review of the denial of a motion to compel arbitration is settled.

“Our caselaw holds that an appeal is the appropriate method for challenging a trial court’s denial of a motion to compel arbitration. See AG. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). This Court’s review of a trial court’s refusal to compel arbitration is de novo. See Ex parte Warrior Basin Gas Co., 512 So.2d 1364, 1368 (Ala.1987).”

Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999). Furthermore, this Court has stated:

“A motion to compel arbitration is analogous to a motion for a summary judgment. The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce. Once such a prima facie showing has been made, the burden shifts to the party opposing arbitration to present some evidence indicating that there is no arbitration agreement subject to specific enforcement under the FAA If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.”

Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999) (citation omitted)(emphasis added). See also Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). The effect of the transaction on interstate commerce must be substantial. See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761 (Ala.2000)(citing United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)). “If the party seeking to enforce the arbitration agreement fails to make such a showing, then the opposing party has no burden of resisting arbitration and the motion should be denied.” Brown v. Dewitt, Inc., 808 So.2d 11, 14 (Ala.2001)(eiting Ex parte Greenstreet, Inc., 806 So.2d 1203 (Ala. 2001); Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999)).

Turning first to Maxwell’s motion to compel arbitration, we have noted that she failed to attach to her motion any supporting materials. Other than incorporating by reference the agreement attached to Morris’s complaint, Maxwell failed to submit any evidence showing that the agreement evidenced a transaction that affected, to any degree, interstate commerce. Maxwell failed to incorporate by reference the prior evidentiary submissions of Aronov, as the remaining defendants had done. Maxwell failed to meet her burden of proof as described in Ex parte Caver, supra, and the trial court’s denial of her motion to compel arbitration is due to be affirmed.

Aronov’s motion to compel arbitration cited no decision of this Court subsequent to Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249 (Ala.1997), and quoted from Hurst the statement that opinions of the United States Supreme Court “stand for the proposition that if any effect on interstate commerce can be found in a commercial transaction, then the transaction is considered to be one involving interstate commerce.” 699 So.2d at 1257. The motion failed to acknowledge this Court’s decision in Sisters of Visitation, supra, released six months before Aronov’s motion was filed, establishing the rule that a transaction must “substantially” affect interstate commerce in order to render enforceable an associated arbitration provision. Aronov’s motion argued:

“5. The [Federal Arbitration Act] applies in this case and preempts State law because the contract between the Ha-venwood [Village, Inc.,] and the plaintiff involves the sale of a condominium which was built with materials that were transferred in interstate commerce. Furthermore, the plaintiffs [sic] had the house inspected and appraised by an FHA-qualified appraiser, obtained a home warranty from an out of state warranty company, (American Home Shield, AHS). The builder of the condominium project obtained ‘products completed operation coverage’ and liability coverage from an out of state insurance company. On information and belief, tools and materials, specifications, appliances, and other aspects of the project to build the condominium surely moved in and/or involved interstate commerce. Plaintiff in the contract acknowledged as much. See Contract § 16.B[,] supra. The sale of the condominium was governed by various Federal regulations, including, the Lead Based Paint disclosure requirements.”

Although Aronov’s motion was not supported by any evidentiary showings, Aro-nov did attempt in its notice of filing on February 16, 2001, to submit supporting evidence. It tendered various attached materials “in support of’ the motion to compel, listing them, in pertinent part, as follows:

“1. The Real Estate Purchase/Sales Contract dated April 29, 1998, that was signed by the Plaintiff and that contains an arbitration clause. (Attached as Exhibit 1);
“2. Addendum to the Purchase Agreement that was signed by the Plaintiff and that provides ‘Intended and operated for occupancy by persons 55 years-or-Older, pursuant to ‘Housing for Older Persons (HOPA) exemption — Section 100.305 of the Fair Housing Act. (Attached as Exhibit 2);
“3. Section 100.305 of the Fair Housing Act (codified in part as 42 U.S.C. § 3607 (2000)). (Attached as Exhibit 3);
“5. Certificate of Liability Insurance for Havenwood Village Condominium Association, Inc., that states Cincinnati Insurance Company afforded general liability coverage to Havenwood Village Condominium Association. (Attached as Exhibit 5)[refleeting a policy effective date of 10/28/97 and a policy expiration date of 10/28/00];
“6. Documents from the Alabama Secretary of State’s Office showing that Cincinnati Insurance Company is a foreign corporation. (Attached as Exhibit 6);
“7. U.S. Department of Housing and Urban Development Settlement Statement (ie. HUD 1 Settlement Statement) dated June 3, 1998, and signed by the Plaintiff that states: (1) State Farm shall provide ‘Contents Insurance (1 Yr.)’ and ‘Flood Insurance (1 Yr.);’ and (2) [American Home Shield] shall provide ‘Home Warranty.’ (Attached as Exhibit 7);
“8. 12 U.S.C. § 2603 (2000) which requires a purchaser and seller to complete [a] U.S. Department of Housing and Urban Development Settlement Statement. (Attached as Exhibit 8);
“9. Documents from the Alabama Secretary of State’s Office showing that State Farm is a foreign corporation. (Attached as Exhibit 9);
“10. The Plaintiffs earnest money check from Regions Bank [Alabama]. The check is dated April 29, 1998, [and] is in the amount of $1000.00. (Attached as Exhibit 10);
“11. Documents from the Alabama Secretary of State’s Office showing that Regions Bank is a foreign corporation. (Attached as Exhibit 11);
“12. The Plaintiffs ‘Premiere 4 Application’ for a home warranty from American Home Shield Group of Companies.... (Attached as Exhibit 12);
“13. Documents from the Alabama Secretary of State’s Office showing that American Home Shield Group is a foreign corporation. (Attached as Exhibit 13);
“14. Affidavit of Barry Ross. (Attached as Exhibit 14).”

Although the affidavit of Barry Ross is listed as Exhibit 14 to Aronov’s notice of filing, only Exhibits 1-13 appear in the record. An affidavit of Barry Ross does appear in the record as an attachment to the motion to compel arbitration filed by Havenwood, but that motion was filed on June 1, 2001, three months after Aronov’s motion to compel had been denied on March 5, 2001, and, more importantly, the affidavit was notarized on May 21, 2001, two and one-half months after Aronov’s motion had been denied and three months after the notice of filing had been filed. Accordingly, we do not have in the records before us a copy of the Ross affidavit Aronov made reference to, but, from all that appears, failed to attach as an exhibit to its February 16, 2001, notice of filing.

Thus, as to Aronov’s motion to compel arbitration, we are left with: (1) the assertions of interstate impact contained within it, but which have no evidentiary significance and which cannot by themselves satisfy Aronov’s burden to show a substantial effect on interstate commerce; and (2) the materials referenced in, and attached to, the notice of filing, excluding the apparently omitted Ross affidavit.

As previously mentioned, Benjamin Vance and Havenwood both incorporated Aronov’s submissions by reference in their motions to compel arbitration. An affidavit of Barry Ross, appearing as an additional attachment to Havenwood’s motion, and accompanied by its own exhibits, states, in pertinent part:

“My name is Barry Ross. Attached hereto as Exhibit ‘A’ are the Articles of Incorporation of Havenwood Village, Inc. Also attached hereto as Exhibit ‘B’ are the Articles of Incorporation of Ha-venwood Village Condominium Association, Inc. Benjamin Vance, Janice Vance and Arthur Baylor were the directors of Havenwood Village Condominium Association, Inc., at the time it was incorporated and at the time Dorothy Morris purchased the home made the subject of this suit. Havenwood Village, Inc., was the declarant which created the Haven-wood Village Condominium (Exhibit ‘C’ attached).
“Attached as Exhibit ‘D’ is a certificate of insurance issued reflecting that the Cincinnati Insurance Company, headquartered in Cincinnati, Ohio, insured Havenwood Village Condominium Association, Inc.[,] regarding the property made the subject of this suit. The insurance was referred to in paragraph (24) of the sales agreement and made an exhibit to it.
“Marty Carter was, at the time Ha-venwood Village, Inc., was incorporated, a resident of Florida; John V. Johnson was a resident of Georgia. These gentlemen were two of the six directors of Havenwood Village, Inc., and two of the four incorporators of said corporation. Marty Carter and John Johnson represented, at the time of the transaction made the basis of this suit, 70% of the ownership interest at Havenwood Village, Inc. Non-Alabama resident Marty Carter provided 99.8% of the capital associated with the initial stock subscription of Havenwood Village, Inc., which capital was utilized in the construction project made the subject of this suit.
“In 1997, Havenwood Village, Inc., entered into an agreement whereby Merrill Lynch Business Financial Services, a Delaware corporation whose principal office is in Chicago, Illinois, issued a line of credit, which funds were utilized in the construction of the project made the subject of this suit.
“It is my understanding that a substantial amount of the building materials used in the construction of the project made the subject of this suit were transported from locations outside the state of Alabama.
“The transaction made the subject of this suit, as reflected by the addendum to the purchase agreement (Exhibit ‘E’) reflects that this undertaking was regulated by the Federal Fair Housing Act.”

Based upon the respective submissions of Aronov, Havenwood, and Benjamin Vance, we will now consider those submissions as they relate to the issue whether the agreement evidenced a transaction that substantially affected interstate commerce.

In Sisters of the Visitation, supra, this Court set out five factors to assist in analyzing whether a transaction substantially affects interstate commerce: (1) citizenship of the parties; (2) where the tools and equipment originated; (3) allocation of costs of services and materials; (4) subsequent movement across state lines; and (5) degree of separability from other contracts. Furthermore, “[t]his analysis is necessarily fact-intensive.” 775 So.2d at 765 n. 5. This Court also similarly employed these factors in a transaction involving the sale of a condominium in Brown v. Dewitt, Inc., supra. Accordingly, we consider the factors in Sisters of the Visitation in light of the facts in this case.

1. Citizenship of the Parties

Morris and Havenwood Village, Inc., were the only signatories to the agreement. It is undisputed that Morris is an Alabama resident. Havenwood’s record on appeal includes the articles of incorporation for Havenwood Village, Inc., as an exhibit to Ross’s affidavit. Those articles state, as does an attached certification from the secretary of state’s office, that Havenwood Village, Inc., was incorporated in the office of the judge of probate of Montgomery County, Alabama. Nothing in the other records on appeal suggests that the remaining defendants, who are nonsignatories to the agreement, were not incorporated in Alabama (for the corporate defendants) or were not residents of Alabama (for the individual defendants). Therefore, the agreement “involves a contract solely between ... local parties,” 775 So.2d at 765, as does the transaction, and this factor lends no support to a finding that the agreement evidences a transaction that substantially affects interstate commerce.

2. Tools and Equipment

The only assertion concerning tools and equipment used in the project underlying the transaction is contained in Aro-nov’s motion to compel arbitration. There Aronov stated that “[o]n information and belief, tools and materials ... surely moved in interstate commerce.” However, this assertion was not supported by any evidentiary fifing, and as was the case in Sisters of the Visitation, “the record is silent as to whether [tools and equipment] were leased or purchased specially for the project and, if so, whether they had moved in interstate commerce.” 775 So.2d at 766. Therefore, “[n]o substantial effect on interstate commerce can be developed based on [the defendants’] acquiring in interstate commerce any tools or equipment to be used in the performance of this contract.” Id.

3. Allocation of Costs of Services and Materials

The defendants produced no evidence tending to show that any out-of-state contractors were used to assist in the construction of Morris’s condominium unit. While Barry Ross’s affidavit stated that it was his “understanding that a substantial amount of the building materials used in the construction of the project made the subject of this suit were transported from locations outside the state of Alabama,” as was the case in Sisters of the Visitation, “the record provides no information from which we can determine what portion of the amount the [defendants may have] paid [to any out-of-state contractors] is allocable to the cost of local labor and overhead.” 775 So.2d at 766. Likewise, the defendants have presented no evidence of the allocation of out-of-state materials as compared to in-state materials used in the construction of Morris’s condominium unit. Thus, “[the defendants] have not presented sufficient evidence to justify the conclusion that [the agreement evidences a transaction that] substantially affects interstate commerce by reason of a dependence upon materials and services moving in interstate commerce.” 775 So.2d at 766.

4.Subsequent Movement Across State Lines

The defendants cannot escape the fact that Morris’s condominium unit is incapable of moving across state fines. While in their briefs the defendants attempt to rely on this Court’s opinion in Ex parte Stewart, 786 So.2d 464 (Ala.2000), for the proposition that an intrastate activity can have an effect on interstate commerce, that reliance is misplaced. In Stewart, this Court affirmed a trial court’s order granting The Birmingham News’s motion to compel arbitration because it determined that the plaintiffs, newspaper deliverers, were an integral part of a flow of interstate commerce, i.e., “ ‘the distribution of [The Birmingham News], as a complete newspaper containing [national and world-wide news items and interstate advertising], to its reading public.’ ” 786 So.2d at 469 (quoting Evening News Publ’g Co. v. Allied Newspaper Carriers of New Jersey, 263 F.2d 715, 717 (3d Cir. 1959)).

In this case, Morris is not a part of any such flow of interstate commerce. The interstate flow of services and materials used to construct Morris’s condominium unit ended with the completion of the construction of the unit and its placement on the retail market as a finished, or a substantially finished, project. The agreement in this case evidences a transaction in which Havenwood Village, Inc., sold a substantially completed condominium unit to Morris. Therefore, the evidentiary submissions of the defendants that relate to the financing of the building project, i.e., the references in Ross’s affidavit to the financiers for the project, the collection of capital, and the line of credit established for the construction, are not relevant to our consideration whether this transaction — the sale of a particular condominium unit to Morris — had a substantial effect on interstate commerce. See Brown v. Dewitt, Inc., 808 So.2d at 14 (“As noted by this Court in Sisters of the Visitation, the degree of interstate commerce involved in contracts related to the transaction at issue does not determine whether the transaction at issue substantially affects interstate commerce.”). The transaction at issue was a sale of real estate located in this state where the seller was an Alabama corporation and the buyer was an Alabama resident. See also Ex parte Kampis, 826 So.2d 819 (Ala.2002)(discussion by plurality of the “come-to-rest” doctrine as it applies to interstate-commerce analysis); American General Fin. Inc. v. Morton, 812 So.2d 282 (Ala.2001)(“[W]e conclude that the sale of real property in Alabama to an Alabama resident by an Alabama company, where ‘all the obligations arising out of the sales contract are to be performed in Alabama,’ is not a transaction within the flow of interstate commerce.”).

5. Degree of Separability from Other Contracts

The agreement stated that Haven-wood Village, Inc., would provide a four-year home warranty to be written by the selling agent, identified in the agreement as Aronov. It further stated that Morris was required to show proof of condominium insurance providing building and personal-liability coverage at the closing on the property.

Aronov’s submissions included the settlement statement of Morris and Haven-wood Village, Inc., showing that Morris’s insurance was being provided by State Farm, and a certification from the secretary of state’s office indicating that State Farm is a foreign corporation. They also included Morris’s application for a home warranty with American Home Shield and a similar certification from the secretary of state’s office indicating that American Home Shield is a foreign corporation. The settlement statement further showed that the contract sales price of the condominium unit was $106,000. Morris’s purchase price was increased by $217 for settlement charges relating to her purchase of contents insurance through State Farm. Morris’s payment of $492.67 for county taxes for the period October 2001 through June 2003 and her $1,000 earnest-money deposit were then credited to that amount for a total of $104,724.33 due from Morris at closing. It further shows that Havenwood Village, Inc., paid the following amounts as settlement charges: (1) $3,180 in commission to Aronov; (2) $350 in attorney fees; (3) $181 for an attorney to record condominium documents; (4) $25.50 in recording fees; (5) $106 in state taxes; (6) $214 for flood insurance for one year to State Farm; and (7) $495 for the home warranty-through American Home Shield for which Morris had filed an application.

The records contain no evidence that Morris received any out-of-state financing for her purchase of the condominium unit. Her complaint stated that she paid the purchase price of the condominium unit from her savings. Nowhere in the records is this controverted by the defendants. Thus, because she is an Alabama resident, we conclude that Morris’s savings were located in Alabama. The only evidence presented by the defendants in regard to any moneys paid by Morris is in regard to the $1,000 earnest-money deposit. Even assuming that Regions Bank is a foreign corporation, we conclude that the $1,000 earnest-money payment was de minimis as compared to the entire purchase price and did not have a substantial effect on interstate commerce. See Ex parte Learakos, 826 So.2d 782, 785 (Ala.2001)(“Likewise, 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 does not establish a substantial effect of this real estate sale and purchase on interstate commerce.”).

Similarly, we do not find that the combined payments to State Farm, also a foreign corporation as asserted by Aronov, of $217 and $214 for contents insurance and flood insurance, respectively, by Morris and Havenwood Village, Inc., had a substantial effect on interstate commerce. The same holds true for the $495 paid by Havenwood Village, Inc., for the home warranty through American Home Shield. Even considering these payments in the aggregate, see, e.g., Tefco Finance Co. v. Green, 793 So.2d 755, 759 (Ala.2001), the total represents less than one percent of the purchase price of the condominium, and we conclude that the combined effect on interstate commerce of those payments was not substantial. Nor does the fact that the agreement stated that “the property sold has been involved in, and necessarily involves, interstate commerce” determine whether the transaction in fact did substantially affect interstate commerce. See Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.l999)(stat-ing that a similar recitation “[did] not prove that the acknowledged involvement of or effect on interstate commerce [was] substantial ”).

Further, we note that the signatories to the agreement were Morris and Haven-wood Village, Inc., as the purchaser and seller, respectively. The arbitration clause at issue governed claims asserted by either the purchaser or seller against each other or by either against any “real estate licensee.” While Aronov and Maxwell may arguably be “real estate licensees” (the record provides no definitive information in that regard), the other defendants are not. Thus, while the arbitration agreement, on its face, would not apply to any claims Morris asserted against the nonsignatory defendants, our conclusion that none of the defendants have met their burden of showing a substantial effect on interstate commerce obviates the need for us to analyze the standing of any of the nonsignatory defendants to enforce the arbitration provision.

III. Conclusion

This Court’s observation in Ex parte Learakos, supra, is applicable to this case, because in that case, as is presented here:

‘[Tfhe record contains no proof that the contract or transaction in this case involved or affected interstate commerce substantially so as to satisfy the interstate-commerce criterion for the applicability of the Federal Arbitration Act[; therefore,] that Act does not apply to this contract or transaction. Rather, Alabama law, and specifically § 8-1-11(8), Ala.Code 1975, applies to prohibit specific enforcement of “[ajn agreement to submit a controversy to arbitration.” ’ ”

826 So.2d at 785-86 (quoting Rogers Foundation Repair, Inc. v. Powell, 748 So.2d at 872 (emphasis on “substantially” in Rogers; remaining emphasis added in Learakos)).

We conclude that the defendants failed to make a prima facie showing that the agreement involves a transaction substantially affecting interstate commerce pursuant to Ex parte Caver, supra, and Sisters of the Visitation, supra. Therefore, the trial court’s denials of the defendants’ respective motions to compel arbitration are due to be affirmed.

1001292 — AFFIRMED.

1001650 — AFFIRMED.

1001733 — AFFIRMED.

1010456 — AFFIRMED.

BROWN, WOODALL, and STUART, JJ., concur.

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

      . Bruce Griffith, d/b/a Griffith Appraisal Services, was also a defendant; he filed an appeal with this Court after the trial court denied his motion to compel arbitration, but that appeal (case no. 1001307) was dismissed on Griffith's motion on September 4, 2001.

      . Maxwell filed with this Court a petition for a writ of mandamus challenging the trial court’s order adding her as a defendant in this case; her petition was denied. Ex parte Maxwell, 812 So.2d 333 (Ala.2001).

      . Morris's brief states that on December 11, 2000, she "advanced” an objection to Aro-nov's motion to dismiss, and the case action summary similarly lists "Pltf. Dorothy Morris’ Objection to Motion to Dismiss of Aronov Realty Brokerage Inc." on December 11, 2000. However, the record contains no such objection in written form. We further note that while three records have been submitted for our review (Benjamin Vance and Haven-wood filed the same record on appeal), the notice of each appeal designated the entire record for compilation and submission on appeal, and none of the records contain a document corresponding to the referenced objection. It is possible that Morris made an oral objection.

      . The trial court, on December 1, 2000, had entered an order originally setting a hearing on Aronov’s motion for December 18, 2000, but nothing in the record indicates that that hearing took place. After Morris made her December 11, 2000, objection, the trial court set a hearing for March 5, 2001.

      . The trial court never stated a rationale for its denials of any of the defendants’ motions to compel arbitration.

      . Although Aronov asserts that Regions Bank is a foreign corporation, we note that the earnest-money check it submitted shows that it was written on an account located in Alabama. Printed on the face of the check is "Regions Bank” with "Alabama” appearing below.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    CLARK SUBSTATIONS, L.L.C. v. Larry WARE and Kurt Edwards.
    1010208.
    Supreme Court of Alabama.
    May 3, 2002.
    Rehearing Denied June 14, 2002.

      Peyton Lacy, Jr., and Brian R. Bostick of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham; and John Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for appellant.
    John Joseph Smith, Jr., Birmingham; and Lindsey J. Allison of Allison, May, Alvis, Fuhrmeister, Kimbrough & Sharp, L.L.C., Birmingham, for appellees.
   WOODALL, Justice.

Clark Substations, L.L.C., the plaintiff, appeals from the trial court’s October 3, 2001, order, which purported to dissolve a temporary restraining order entered against Larry Ware and Kurt Edwards, the defendants, and which, in effect, denied in part and granted in part the in-junctive relief sought by Clark Substations. We affirm.

I.

Clark Corporation, whose operating assets were purchased by Clark Substations, was engaged in the business of packaging and selling electrical substations. “An electrical substation connects a power plant’s electrical generation system to a transmission system called the power grid and then connects the power grid to the distribution network that supplies electricity to residential and industrial entities.” Appellant’s Brief, at 1.

Ware and Edwards were both employed by Clark Corporation. In connection with that employment, each of them executed a noncompetition agreement, pursuant to which he agreed not to compete with Clark Corporation after the termination of his employment. The noncompetition agreement executed by Ware specifically prohibited its assignment:

“Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors and assigns of [Clark Corporation] and [Ware]. [Clark Corporation] and [Ware] may not assign its or his rights hereunder.”

(Emphasis added.) The noncompetition agreement executed by Edwards allowed Clark Corporation to assign the agreement only with Edwards’s prior written consent to the assignment:

“SUCCESSORS AND ASSIGNS.
This Agreement may not be assigned by operation of law or otherwise by any party except with the prior written consent of the other party. This Agreement and all of the terms, covenants and conditions shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, legal representatives, successors and assigns.”

(Emphasis added.)

In March 2000, Clark Substations purchased Clark Corporation’s operating assets, including its goodwill, and assumed the liabilities Clark Corporation had incurred in the ordinary course of business. Subsequently, “Clark Substations operated at the same location with the same employees, products, customers, vendors and, most importantly, the same goodwill” as Clark Corporation. Appellant’s Brief, at 7. In fact, both Ware and Edwards went to work for Clark Substations, serving as its president and engineering manager, respectively.

Following the sale of its operating assets, Clark Corporation changed its name to Jager and Sons, Inc. Jager and Sons, Inc., dissolved in December 2000.

Ware resigned as president of Clark Substations in July 2001. Edwards resigned as its engineering manager in August 2001. They then formed Substation Enterprises, Inc., and began to compete with Clark Substations in the substation-packaging business.

II.

On September 11, 2001, Clark Substations filed in the Shelby Circuit Court a complaint against Ware and Edwards, along with application for a temporary restraining order and a motion for a preliminary injunction. In relevant part, Clark Substations sought to enforce the noncom-petition agreements that Ware and Edwards had executed while they were employed by Clark Corporation.

On September 11, 2001, the trial court, without a hearing, issued a temporary restraining order, enjoining Ware and Edwards from engaging in the following conduct:

“(a) disclosing, revealing, publishing or transferring any confidential information obtained from Clark Substations while employed by it;
“(b) directly or indirectly engaging in the business of the sale, design and/or production of electrical substation packaging products and services within the territory of the United States of America; and/or
“(c) directly or indirectly supplying any electrical substation products or providing services to, or otherwise soliciting, attempting to solicit, or accepting business from any customer with whom Clark Substations has done business or solicited to do business.”

By that same order, the trial court set the motion for preliminary injunction for hearing on September 20, 2001. Ware and Edwards filed a motion to dissolve the temporary restraining order, and that motion was also set for hearing on September 20. The principal contention in the motion to dissolve was that Clark Substations had no legal right to enforce the noncompetition agreements Ware and Edwards executed while they were employed by Clark Corporation.

The trial court stated at the September 20, 2001, hearing that the only purpose of the hearing was to take testimony on the motion to dissolve the temporary restraining order, which, the trial court stated, “particularly involve[d] alleged covenants not to compete.” However, at the conclusion of the hearing, the trial court invited the parties “to submit to [it] a paragraph ... in the nature of injunctive relief directing that the defendants not use material that does not belong to them, that is, property of Clark Substations.” The temporary restraining order was to expire by its terms at midnight on September 20, 2001. However, Ware and Edwards committed to abide by the order through September 24, 2001. Clark Substations does not contend that the order was effective after September 24.

On October 3, 2001, the trial court entered an order, holding that Clark Substations was not entitled to enforce the non-competition agreements and purporting to dissolve the already expired temporary restraining order. Also, the trial court ordered the following injunctive relief: “To the extent that any [of Clark Substations’] property, whether tangible or intangible, is held by [Ware or Edwards], they are hereby restrained from further use, dissemination or publication of such property interest.” The trial court did not enjoin Ware and Edwards from competing with Clark Substations, relief Clark Substations sought in its motion for a preliminary injunction. From that denial of injunctive relief, Clark Substations appealed, as permitted by Ala. R.App. P. 4(a)(1)(A).

III.

The dispositive issue is whether Clark Substations is entitled to enforce the non-competition agreements executed by Ware and Edwards in the course of their employment with Clark Corporation. The trial court, relying upon its interpretation of the specific terms of the agreements, found that Clark Substations was not entitled to enforce the agreements. We reach the same conclusion. Therefore, we must affirm the trial court’s order insofar as it, in effect, denied injunctive relief based upon the noncompetition agreements.

IV.

“In adopting § 8-1-1, [Ala.Code 1975,] the Legislature has declared the public policy of this state against noncom-pete agreements.” Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659, 662 (Ala.2001). A noncompetition agreement is void, unless it falls within an exception stated in § 8-l-l(b).

“In Sevier Insurance Agency, Inc. v. Willis Corroon Corp., 711 So.2d 995 (Ala.1998), this Court held ‘that a non-solicitation agreement restrains trade and, therefore, that § 8-1-1 applies to such an agreement and that a person may enforce such an agreement only if it falls within the exceptions stated in § 8-l-l(b).’ 711 So.2d at 998. ‘A person or entity seeking to enforce a contract that restrains the exercise of a lawful trade or business has the burden of showing that it is not void under Ala.Code 1975, § 8-1-1.’ Construction Materials, Inc. v. Kirkpatrick Concrete, Inc., 631 So.2d 1006, 1009 (Ala.1994). Section 8-1-1, Ala.Code 1975, provides, in pertinent part:
“ ‘(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“ ‘(b) ... [0]ne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.’ (Emphasis added [in Pitney Bowes, Inc.])
“ ‘Section 8-1-1 expresses the public policy of Alabama disfavoring contracts in restraint of trade; such contracts are disfavored “because they tend not only to deprive the public of efficient service but also ... to impoverish the individual.” ’ Construction Materials, 631 So.2d at 1009 (quoting Robinson v. Computer Servicenters, Inc., 346 So.2d 940, 943 (Ala.1977)). A covenant not to compete that does not fall within the limited exceptions set out by § 8-l-l(b) is void. Construction Materials, 631 So.2d at 1009. See also Livingston v. Dobbs, 559 So.2d 569 (Ala.1990), and Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968).
“... The employee-employer exception to the voidness of noncompete agreements does not save a noncompete agreement unless the employee-employer relationship exists at the time the agreement is executed. Construction Materials, supra. Absent the employee-employer relationship when the agreement is executed, the agreement is void. Id.”

Pitney Bowes, Inc., 823 So.2d at 661-62.

The noncompetition agreements at issue in this case were agreements between employees, Ware and Edwards, and their then employer, Clark Corporation. After Clark Substations purchased the operating assets of Clark Corporation, including its goodwill, Ware and Edwards became employees of Clark Substations, but they never executed noncompetition agreements in the course of that subsequent employment. Therefore, in an attempt to prevent Ware and Edwards from competing with it, Clark Substations seeks the benefit of their prior noncompetition agreements with Clark Corporation. Relying upon our holding in Sevier Insurance Agency, Inc. v. Willis Corroon Corp. of Birmingham, 711 So.2d 995 (Ala.1998), Clark Substations argues that it, as the successor corporation, is entitled to enforce the agreements entered into between the employees and the predecessor corporation, Clark Corporation. However, Clark Substations’ reliance upon Sevier Insurance is misplaced, and its argument has no merit.

In Sevier Insurance, this Court, after discussing the relevant statutes, held that “a successor corporation [can] enforce a nonsolicitation agreement entered into between an employee and a predecessor corporation.” Sevier Insurance, 711 So.2d at 1001. That holding must be considered in the context of the reasoning that preceded it.

‘We next consider whether a successor corporation can enforce an employee’s nonsolicitation agreements.
“Taylor and Dean entered into the agreements with the predecessor employer, CCA, and not with Corroon, the successor corporation. The question whether Corroon can enforce the agreements Taylor and Dean made requires us to interpret provisions of State law relating to nonsolicitation agreements. Section 10-2A-145(b)(4), Ala.Code 1975 (which was in effect when CCA merged with Corroon), provided:
“ ‘[The] surviving ... corporation shall ... possess all the rights [and] privileges ... of each of the merging or consolidating corporations; ... and all ... choses in action ... shall be taken and deemed to be transferred to and vested in [the surviving] corporation without further act or deed.... ’
“In Wyatt Safety Supply Co. v. Industrial Safety Products, Inc., 566 So.2d 728 (Ala.1990), a majority of this Court held that a successor corporation may not enforce an employment agreement made between an employee and the predecessor corporation. In reaching this decision, the Court concluded that § 10-2A-145(b)(4) did not apply to nonsolici-tation agreements entered into by predecessor corporations, because of the policy disfavoring restraints on trade expressed in § 8-1-1.
“We have reexamined the rule of law established by the majority of this Court in Wyatt and, after further consideration of the legislative intent currently expressed in § 10-2B-11.06 (see footnote 1), we overrule the holding in Wyatt and hold that a successor corporation can enforce nonsolicitation agreements that are otherwise valid and enforceable. Cf. First Alabama Bancshares, Inc. v. McGahey, 355 So.2d 681 (Ala.1977) (recognizing, under somewhat different facts, that a noncompetition agreement can remain valid after a merger and can be enforced by the successor corporation). To hold otherwise would, we believe, ignore the reality that such agreements are often important assets that businesses intend to transfer during a purchase or merger; therefore, we hold that the exception contained in § 8-1-1(b) permits a successor corporation to enforce a nonsoliciation agreement entered into between an employee and a predecessor corporation.

Sevier Insurance, 711 So.2d at 1000-01. Stated simply, this Court reasoned that the policy disfavoring restraints on trade expressed in § 8-1-1 was trumped by the legislative intent formerly expressed in § 10-2A-145(b)(4) and currently expressed in § 10-2B-11.06. Therefore, we may not ignore the limited scope of those latter sections.

Former § 10-2A-145 dealt specifically with the effects of a merger of two or more corporations, and § 10-2A-145(b)(4), quoted in Sevier Insurance, gave the surviving corporation the same rights as its predecessor corporations. Similarly, § 10-2B-11.06 provides, in pertinent part, that “[w]hen a merger takes effect ... [t]he surviving corporation thereupon and thereafter possesses all the rights ... of a public as well as of a private nature, of every corporation party to the merger.” (Emphasis added.) While Sevier Insurance dealt with the effect of a merger, Clark Corporation and Clark Substations did not merge. Instead, Clark Substations purchased the operating assets of Clark Corporation, a transaction outside the scope of § 10-2B-11.06.

The Alabama Business Corporation Act deals specifically with a sale-of-assets transaction. See § 10-2B-12.02, Ala.Code 1975. Section 10-2B-12.02 does not provide that the mere purchase of a corporation’s assets, without a valid assignment of specific contract rights, gives the purchaser all the rights of the seller of those assets. Therefore, it does not express any legislative intent inconsistent with the policy disfavoring noncompetition agreements expressed in § 8-1-1. Under these circumstances, this Court must conclude that Clark Substations is not a successor entitled to enforce the noncompetition agreements executed by Ware and Edwards in the course of their employment by Clark Corporation.

Clark Substations argues “that this Court considers the controlling element of the transfer of a covenant not to compete to be whether or not there was a sale of goodwill” and cites First Alabama Banc-shares, Inc. v. McGahey, 355 So.2d 681 (Ala.1977), in support of its argument. However, its argument, based upon that case, is fundamentally flawed, because First Alabama Bancshares, Inc. dealt with the sale-of-goodwill exception in § 8-1-1(b), not with its separate employee-employer exception. Here, we are dealing not with a noncompetition agreement between Clark Substations and Clark Corporation, the parties to the sale of goodwill, but, instead, with noncompetition agreements executed by Ware and Edwards in the course of their employment by Clark Corporation. We cannot ignore this distinction, where we must honor the policy disfavoring noncompetition agreements expressed in § 8-1-1, absent clear legislative intent to the contrary.

Finally, Clark Substations is not entitled to enforce the noncompetition agreements as an assignee of those agreements. Indeed, the agreement executed by Ware specifically prohibited its assignment by Clark Corporation. While the agreement executed by Edwards allowed Clark Corporation to assign the agreement with Edwards’s “prior written consent,” no evidence was presented indicating that Edwards gave any such consent.

V.

For the foregoing reasons, we hold that the trial court did not err in failing to enjoin Ware and Edwards from competing with Clark Substations. Therefore, to that extent, the trial court’s order of October 3, 2001, is affirmed.

AFFIRMED.

HOUSTON, LYONS, and JOHN-STONE, JJ., concur.

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

      "1 Section 10-2A-145(b)(4) was repealed effective January Í, 1995, and was replaced by § 10-2B-11.06, which carries forward the substance of subsection (b)(4) but in an abbreviated form.”


text:
    Samuel T. ROBINO v. Dee KILGORE et al.
    1002052
    Supreme Court of Alabama.
    June 7, 2002.
    Donald E. Blankenship of Blankenship & Company, Birmingham, for appellant
    Hewitt L. Conwill, Columbiana, for ap-pellees Dee Kilgore, William B. Doyle, Michael J. Antonio, Jr., and Kelby E. Strickland.
    Samuel Maples, Birmingham, for appel-lee George Babakitis, as administrator ad colligendum and administrator ad litem of the estate of Joseph Thomas Robino, Jr., deceased.
   HARWOOD, Justice.

On February 7, 1997, Dee Kilgore, William B. Doyle, Michael J. Antonio, Jr., and Kelby E. Strickland (hereinafter collectively referred to as “the Kilgore plaintiffs”) filed a “sale-for-division suit” pursuant to Ala.Code 1975, § 35-6-58, against Samuel T. Robino (hereinafter referred to as “Ro-bino”) and Joseph T. Robino, Jr., seeking the sale of a parcel of real estate located in Shelby County and the division of the proceeds from the sale. The Kilgore plaintiffs alleged that they each owned a one-eighth interest in the parcel and that each defendant owned a one-fourth interest in the parcel. Robino appeals the trial court’s April 6, 2001, order requiring that the parcel be sold and the proceeds distributed according to the interests as set out in its order.

On September 10, 1990, DAGS Enterprises, Inc., an Alabama corporation (hereinafter referred to as “DAGS”), purchased the parcel from the Presbytery of Shep-pards & Lapsley, Inc., an Alabama not-for-profit corporation, for the sum of $160,000. On July 7, 1994, DAGS conveyed the parcel to the Kilgore plaintiffs and Michael J. Antonio, Jr., in his capacity as trustee of the estate of Joesph T. Robino, the father of Joseph T. Robino, Jr., and Robino. On October 12,1995, Antonio, as trustee of the estate of Joesph T. Robino, conveyed an undivided one-half interest in the parcel to Joseph T. Robino, Jr., and Robino, as tenants in common. Joseph T. Robino, Jr., died on April 20, 1998, and George Babaki-tis, the administrator ad colligendum of his estate (hereinafter referred to as “the estate”), was substituted as a defendant on November 2,1998.

On November 17, 1998, Robino filed a petition in bankruptcy in the federal bankruptcy court pursuant to Chapter 11, and upon Robino’s filing of a suggestion of bankruptcy the litigation in the trial court was stayed on February 25, 1999. On April 8, 2000, Richard G. Poff, an attorney, intervened in the action between the Kil-gore plaintiffs and the estate, alleging that he had purchased Robino’s interest in the parcel at a sheriffs sale on December 13, 1999, and that Robino had forfeited his right of redemption in the parcel. Poff filed this action to quiet title with respect to the interest in the parcel he had obtained at the sheriffs sale, and he also sought to eject Robino from the property.

Robino did not respond to Poffis complaint, and on May 3, 2000, Poff filed an application for the entry of a default judgment. Pursuant to PofPs application, the trial court entered a default judgment against Robino on June 7, 2000. In its order granting Poffs application, the trial court stated, in pertinent part:

“It appearing to the satisfaction of the Court that entry of default has heretofore been made by the Clerk of this Court in favor of Richard G. Poff, Jr., against Sam T. Robino and that said Sam T. Robino has taken no proceedings since such default was entered,
“And upon consideration of the evidence presented by Richard G. Poff, Jr., the Court is of the opinion that Richard G. Poff, Jr., is entitled to judgment against said Sam T. Robino, for the possession of the undivided interest which said Sam T. Robino formerly held in the following described real estate situated in Shelby County....
“It is therefore CONSIDERED, ORDERED, ADJUDGED, and DECREED by the Court as follows:
“1. That said Richard G. Poff, Jr., acquired all of the right, title, and interest in and to said real estate which said Sam T. Robino formerly held through a Sheriffs Sale and Sheriffs Deed which is dated December 13, 1999, and was recorded on December 14, 1999, as Inst. No. 1999-50269 in the Office of the Judge of Probate of Shelby County, Alabama.
“2. That said Sam T. Robino has now forfeited his right of redemption to said real estate.
“3. That said Sam T. Robino has no right, title, interest, or claim in and to said real estate and that said Sam T. Robino is hereby ORDERED immediately to remove himself and any of his personal property from said real estate, and said Richard G. Poff, Jr., is hereby authorized to employ and enlist any lawful means necessary to effectuate removal of said Sam T. Robino and his personal property from said premises.”

On June 12, 2000, the case was called for trial; neither Robino nor anyone representing his interests was present. After the Kilgore plaintiffs, Poff, and the estate informed the trial court that the issues in controversy between the parties had been settled, and upon hearing ore tenus testimony and stipulations, the trial court entered a default judgment against Robino. The trial court also required the parties to provide a proposed settlement order for stipulation of dismissal within 14 days, or it would dismiss the case. The parties did not file a proposed order before the date set by the trial court, and, consequently, the trial court dismissed the case on July 18, 2000. On July 27, 2000, Poff filed a motion to set aside the judgment of dismissal. That same day, the Kilgore plaintiffs, Poff, and the estate filed a joint motion to approve the proposed order they had attached to the motion, which stated the settlement terms and conditions they had previously agreed to.

On July 31, 2000, the trial court entered an order that ordered the parcel sold at a public auction on September 1, 2000, and also set forth the percentages of each party’s respective interest in the parcel. In that order, Poff was shown as having a 25 percent interest in the parcel, and Robino was shown as possessing no interest in the parcel. On or about August 28, 2000, the Kilgore plaintiffs and Poff filed a motion to continue the public sale in order to consummate a private sale of the property. In granting the motion, the trial court noted, “Granted, without objection.”

On August 30, 2000, Robino filed a motion objecting to the July 31, 2000, order. Poff subsequently filed a motion to strike Robino’s motion; the trial court granted Poffs motion on October 13, 2000. In its order striking Robino’s motion, the trial court, in pertinent part, stated:

“Said Sam T. Robino has no present standing to object to the order which was entered by the Court on July 31, 2000, ordering the sale of the real estate which is the subject of this litigation, or to obtain any other relief pursuant to said Motion Objecting To Order For Sale Of Property For Division.”

On March 20, 2001, Poff filed a motion to confirm the sale of the parcel. On April 3, 2001, Robino filed a motion objecting to both the sale and the confirmation of the sale. On April 6, 2001, the trial court entered an order confirming the sale and noted that Robino was not a party to the proceedings.

On May 7, 2001, Robino filed a motion to reconsider both the trial court’s orders providing for the sale of the parcel and the division of the proceeds, as well as the order confirming the sale of the parcel. On the same day, Robino also filed a motion to consolidate this case with a case involving a contest of Joseph T. Robino, Jr.’s will. On July 6, 2001, after oral argument, the trial court denied both motions. On August 17, 2001, Robino filed a notice of appeal to this Court. Robino did not file a motion to set aside the default judgment of the trial court, and he does not appeal that default judgment. The issue presented by Robino’s appeal is whether the trial court erred when it ordered the real property sold for division without deciding, by trial, the issue of title and interest, when Robino disputed the Kilgore plaintiffs, the estate, and Poff s title in that real property.

We note that Robino’s May 7, 2001, “motion to reconsider” is properly viewed as a Rule 59(e), Ala. R. Civ. P., postjudgment motion. See Ex parte Mut. Sav. Life Ins. Co., 765 So.2d 649 (Ala.l998)(treating a postjudgment motion styled as a motion to “reconsider” as a Rule 59(e) motion); see also Evans v. Waddell, 689 So.2d 23, 26 (Ala.l997)(“[t]he substance of a motion and not its style determines what kind of motion it is”). Therefore, the postjudgment motion was adequate to extend the time for taking an appeal so that Robino’s appeal was timely filed. Rule 4(a), Ala. R.App. P. However, we also address Robi-no’s standing to appeal from the judgment confirming the sale of the parcel.

Specifically, we consider whether Robino has standing to appeal when he has not challenged the default judgment that divested him of any interest he might have had in the property at issue. “Standing to appeal” requires that the appellant have an interest in the subject of the appeal. Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala.1993). An appellant must have been a party to the judgment below to possess standing to appeal any issue that arises out of that judgment. Mars Hill Baptist Church of Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist Church, 761 So.2d 975 (Ala.2000). See also Sho-Me Motor Lodges, Inc. v. Jehle Slauson Constr. Co., 466 So.2d 83 (Ala.1985).

In Sho-Me, a hotel owner sued a contractor who had repaired weather damage to the hotel. During the pendency of the case, the contractor filed a third-party complaint against a subcontractor. The trial court entered a summary judgment for the contractor and also for the third-party subcontractor. The hotel owner appealed. In its motion to dismiss the appeal, the subcontractor argued that the hotel owner was not aggrieved by the judgment in the third-party claim and that it had no other interest in the action by the contractor. This Court then considered whether the hotel owner should be allowed to appeal from a summary judgment entered on a third-party complaint, filed by the contractor against the subcontractor, that was subsequently not appealed by the contractor.

This Court held, in part, that the hotel owner was not a party aggrieved by the summary judgment entered against the contractor in its third-party claim against the subcontractor and thus could not appeal from that judgment. In so holding, this Court stated:

“Ordinarily, one who is not a party to a cause cannot appeal. Security Life & Accident Ins. Co. v. Crescent Realty Company, 273 Ala. 624, 143 So.2d 441 (1962); Hunt v. Houtz, 62 Ala. 36 (1878). Moreover, when an error applies only to a party who does not appeal therefrom, another party cannot make any such error an issue on appeal. Rush v. Heflin, 411 So.2d 1295 (Ala.Civ.App.1982); Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771 (1967). Although Southern Roof is a third-party defendant in this case, plaintiff Sho-Me [the hotel owner] is in no way aggrieved by the summary judgment entered in Southern Roofs favor and against Jehle Slauson [the contractor]. Jehle Slauson filed a third-party complaint against Southern Roof, seeking indemnity for any liability it might have to Sho-Me. Sho-Me has not asserted any claim directly against Southern Roof, and it has not been shown to us that Sho-Me has any interest in Jehle Slauson’s third-party action. When summary judgment was entered against it as to the third-party complaint, Jehle Slauson, though it was the party aggrieved by that judgment, did not appeal. Sho-Me, for aught that appears, has looked to Jehle Slauson for its recovery, and has been indifferent to the manner and means by which Jehle-Slau-son, in turn, might protect itself. Fuller v. Branch County Commission, 520 F.2d 307 (6th Cir.1975); Bryant v. Technical Research Co., 654 F.2d 1337 (9th Cir.1981).
“Because Sho-Me was not a party aggrieved by the judgment entered against Jehle Slauson in its third-party claim against Southern Roof, it could not appeal from that judgment. Therefore, the motion of Southern Roof to dismiss Sho-Me’s appeal of that judgment must be, and is, granted.”

466 So.2d at 88. See also Biles v. Sullivan, 793 So.2d 708 (Ala.2000)(the plaintiff, who was dismissed as a party in an action before the case was tried, had no standing to appeal based on alleged misconduct that may have occurred in that action).

Here, Robino has not appealed the default judgment against him, and he does not argue that the trial court erred when it entered the default judgment against him. Because Robino’s August 17, 2001, notice of appeal does not purport to appeal from the June 7, 2000, default judgment, and because he makes no argument challenging the default judgment, he has waived that issue. Pardue v. Potter, 632 So.2d 470 (Ala.1994) (issues not raised in a party’s appellate brief are waived).

Because the trial court’s June 7, 2000, order divested Robino of any interest in the parcel, he had no basis on which to continue as a party in that action, and because Robino had no interest in the parcel, he was not injured by the trial court’s confirmation of the sale. Accordingly, he has no standing to appeal from the trial court’s subsequent order confirming the sale of the parcel, and Robino’s appeal is due to be, and is hereby, dismissed.

APPEAL DISMISSED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . Robino's notice of appeal shows the date of the judgment appealed from as April 5, 2001. However, the record shows that judgment was not entered until April 6, 2001.

      . 11 U.S.C. § 301 etseq.

      . 11 U.S.C. § 362. The record does not indicate the result or the date of termination of Robino's bankruptcy proceeding.

      . The record contains a quitclaim deed dated December 10, 1999, purporting to convey Ro-bino’s interests in the parcel to Shirley A. Robino. The record contains a letter from Mark A. Pickens, a lawyer, which states, in pertinent part: "Enclosed please find the original Quitclaim Deed that we recorded. If you have any questions, please contact our office.” Robino did not reference the deed in any motion in opposition to the sale of the parcel, and he does not present any argument relating the deed to any issue in this appeal.

      . The order stated, however: "Should the parties desire to unanimously sell the property through private sale by private bidder, then nothing in this order shall be construed as to prohibit such act.”

      . It is this order that Robino purports to appeal from in this case.


author: PER CURIAM. JOHNSTONE,

text:
    CONSECO FINANCE CORPORATION-ALABAMA v. Racheal M. BOONE.
    1000821.
    Supreme Court of Alabama.
    June 14, 2002.

      Michael Leo Hall, Paul P. Bolus, and Janine L. Smith of Burr & Forman, L.L.P., Birmingham, for appellant.
    Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellee.
   PER CURIAM.

The defendant Conseco Finance Corporation — Alabama (formerly known as Green Tree Financial Corporation — Alabama) appeals the order of the trial court denying the motion of Conseco to compel the plaintiff Racheal M. Boone to arbitrate her claims. We reverse and remand.

Boone, an Alabama resident, purchased a manufactured home from SC Tuscaloosa Co., Inc., now known as Southern Energy Homes Retail Corporation, a seller of manufactured homes in Tuscaloosa, Alabama. Boone executed a “Manufactured Home Retail Installment Contract and Security Agreement” to purchase the manufactured home, which had been manufactured by Homes of Legend, Inc. (“HOL”), a Michigan corporation with its principal place of business in Boaz, Alabama. The installment contract contained an assignment to “Green Tree Financial Corp. — Alabama [now Conseco, a Delaware corporation], 324 Interstate Park Drive, Montgomery, AL 36109.”

Within a year after purchasing the manufactured home, Boone noticed that leaks in the home caused water damage to the carpet and the underlying floor. After several attempts by the dealer to repair the home failed to satisfy Boone, she sued Southern Energy, HOL, and Conseco for fraudulent misrepresentation, fraudulent suppression, the tort of outrage, and negligent hiring and supervision. Each defendant moved to compel Boone to arbitrate her claims. The motions to compel arbitration filed by Southern Energy and HOL and the denials of those two motions are not before us, because Southern Energy settled Boone’s claims and HOL dismissed its appeal.

Conseco, to support its motion to compel arbitration, relied upon an arbitration provision in the installment contract, which reads, in pertinent part:

“14. ARBITRATION: ALL DISPUTES, CLAIMS, OR CONTROVERSIES ARISING FROM OR RELATING TO THIS CONTRACT OR THE PARTIES THERETO SHALL BE RESOLVED BY BINDING ARBITRATION BY ONE ARBITRATOR SELECTED BY YOU WITH MY CONSENT. [You,’ ‘your’ means the Seller and also the Assignee or their affiliates (after the Contract is assigned by Seller).] THIS AGREEMENT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AT 9 U.S.C. SECTION 1.... YOU RETAIN AN OPTION TO USE JUDICIAL (FILING A LAWSUIT) OR NON-JUDICIAL RELIEF TO ENFORCE A SECURITY AGREEMENT RELATING TO THE MANUFACTURED HOME SECURED IN A TRANSACTION UNDERLYING THIS ARBITRATION AGREEMENT, TO ENFORCE THE MONETARY OBLIGATION SECURED BY THE MANUFACTURED HOME OR TO FORECLOSE ON THE MANUFACTURED HOME....
“15. WAIVER OF JURY TRIAL: I HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY THAT I HAVE IN ANY SUBSEQUENT LITIGATION BETWEEN ME AND THE SELLER, OR ME AND ANY ASSIGNEE OF THE SELLER, WHERE SUCH LITIGATION ARISES OUT OF, IS RELATED TO, OR IS IN CONNECTION WITH ANY PROVISION OF THIS CONTRACT WHETHER THE CONTRACT IS ASSERTED AS THE BASIS FOR A CLAIM, COUNTERCLAIM OR CROSSCLAIM, OR A DEFENSE TO A CLAIM, COUNTERCLAIM, OR CROSSCLAIM.”

(Capitalization in original.) Following these provisions is the language:

“MY SIGNATURE BELOW ACKNOWLEDGES I UNDERSTAND PARAGRAPHS 14 AND 15 ABOVE REQUIRE BINDING ARBITRATION AND WAIVE MY RIGHT TO A JURY TRIAL IF A DISPUTE ARISES UNDER THIS CONTRACT.”

(Capitalization in original.) Boone’s signature follows these provisions.

The parties conducted discovery on whether the arbitration provision is enforceable. Boone submitted the deposition of Kenny Holt, a corporate representative of Conseco; the deposition of Tim Sims, a representative of HOL; and a copy of the Commercial Rules of the American Arbitration Association. Conseco submitted the installment contract and an affidavit from the credit manager of Conseco, Jason Stalcup. Stalcup’s affidavit states facts to fulfill the interstate commerce criterion of the Federal Arbitration Act (“FAA”) and to address some aspects of Boone’s claim that the arbitration provision is unconscionable.

Two issues are before us: 1) whether Conseco satisfied its initial burden of establishing that the installment contract substantially affected interstate commerce so that the FAA applies and 2) whether Boone satisfied her burden of proving her affirmative claim of unconscionability, see Rule 8(c), Ala. R. Civ. P., which she asserted to avoid operation of the arbitration provision.

I. Interstate Commerce Criterion

Conseco argues that Stalcup’s affidavit proves that the installment contract had enough effect on interstate commerce to support the application of the FAA and thereby to require Boone to arbitrate her claims against Conseco. The facts cited by Conseco to establish the interstate commerce criterion for the application of the FAA are indistinguishable from the facts this Court found sufficient to satisfy the interstate commerce criterion in Green Tree Fin. Corp. v. Lewis, 813 So.2d 820 (Ala.2001). Thus, Conseco has satisfied its initial burden of establishing that the installment contract had a substantial effect on interstate commerce.

II. Unconscionability

The only argument asserted by Boone on appeal is that the arbitration provision is unconscionable and, therefore, unenforceable. Boone cites American General Fin., Inc. v. Branch, 793 So.2d 738 (Ala.2001), in support of her unconscio-nability argument.

“Unconscionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala.1998).” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000). This Court has previously held that arbitration provisions not materially distinguishable from the one in the installment contract executed by Boone are not unconscionable. See Green Tree Fin. Corp. v. Lewis, supra; Green Tree Fin. Corp. v. Wampler, supra; Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999); Ex parte Parker, 730 So.2d 168 (Ala.1999); and Ex parte Napier, 723 So.2d 49 (Ala. 1998). Further, the case of American General Fin., Inc. v. Branch does not support Boone’s argument that the arbitration provision in the case before us is unenforceable on the ground of unconscionability. As we explained in the analogous case of Green Tree Fin. Corp. v. Lewis:

“The arbitration provision in Branch limited the kind of damages the plaintiff could recover. No such limitation appears in the arbitration provision now before the Court. [Boone has] made no showing that [she] lacked a meaningful choice in obtaining financing; the plaintiff in Branch did make such a showing. Nothing in the record details the lending practices of lenders other than [evidence indicating Conseco’s control of 38% of the market for financing of mobile homes in April 2000 — four years after Boone had executed her contract in 1996]. Nothing in the record suggests that [Boone] attempted to ‘shop around’ for a financing arrangement that would not call for arbitration of disputes.”

813 So.2d at 825.

Conclusion

For the reasons stated, we reverse the order of the trial court denying the motion of Conseco to compel arbitration. We remand this case for the trial court to enter an order compelling Boone to arbitrate her claims against Conseco.

REVERSED AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE,

Justice (dissenting).

I dissent. See my dissent in Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 825-26 (Ala.2001), and my dissent in Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999).