author: HARWOOD, Justice, JOHNSTONE, Justice

text:
    Ex parte PROCOM SERVICES, INC., Russell Leitch, and Hal Crews. (In re Hank Smith, Jr. v. Procom Services, Inc., Russell Leitch, and Hal Crews).
    1021851.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      Harlan F. Winn III and R. Frank Springfield of Burr & Forman, LLP, Birmingham, for petitioners.
    S. Joshua Briskman of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for respondent.
   HARWOOD, Justice,

Hank Smith, Jr., sued Procom Services, Inc. (“Procom”), a Texas corporation, and Russell Leitch and Hal Crews, both residents of Dallas, Texas, in the Jefferson Circuit Court alleging breach of contract. Procom, Leitch, and Crews filed a motion to dismiss alleging, among other grounds, that venue in Jefferson County was improper and asking the trial court to enforce the outbound forum-selection clause contained in Smith’s employment contract with Procom. The motion to dismiss was supported by Leitch’s and Crews’s affidavits. Smith amended his complaint to add a fraud claim based upon allegedly false representations made to him by Leitch and Crews. Smith also filed a response to the defendants’ motion to dismiss, along with his supporting affidavit. The trial court overruled the motion to dismiss without a written explanation. Procom, Leitch, and Crews petition this Court for a writ of mandamus “directing the trial court to dismiss the claims of Smith against petitioners” based on the outbound forum-selection clause.

I. Standard of Review

“An outbound forum-selection clause — a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute— implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala.2000); and O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala.1999).
“ ‘ “The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.” Ex parte National Security Ins. Co., 727 So.2d 788, 789 (Ala.1998). “Mandamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995).’
“Ex parte CTB, Inc., 782 So.2d at 190. ‘On appeal, the review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.’ Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).”

Ex parte Rymer, 860 So.2d 339, 341 (Ala.2003).

II. Facts

In April 2002, Smith entered into an one-year employment contract with Pro-com, a corporation that markets telecommunications services and equipment. The employment contract provided, in relevant part:

“This Employment Agreement (‘Agreement’) is made between Procom Services, Inc., a Texas corporation (‘Employer’), and HANK SMITH, JR. (‘Representative’) and is entered into as of April 15, 2002.
“Annual Compensation. Representative’s annual compensation shall be as follows: minimum of $1000 per week or agreed overrides whichever is greater.
“Governing Law. This agreement shall be governed by and construed in accordance with the law of the State of Texas. The parties hereby irrevocably agree that the state courts sitting in Dallas, Texas shall have sole and exclusive jurisdiction for any action or proceeding relating to or arising out of this agreement and waive any objection to venue in such court. In any such action or proceeding, the prevailing party shall be reimbursed by the other party for all costs and expenses (including, without limitation, attorney’s fees and costs) incurred in connection with such action or proceeding. The term ‘prevailing party’ shall mean that party whose position is substantially upheld in a final judgment rendered in such litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body to consider the appeal.”

Smith attested in his affidavit that “[w]hen [he] negotiated [his] employment with Procom, [he] dealt with Hal Crews and Russell Leitch. The negotiations took place while [he] was in Alabama and Georgia, and while Hal Crews and Russell Leitch were in Georgia and Alabama[,] respectively.”

Smith asserted in his amended complaint that Leitch and Crews “each represented to him that he would be paid at least one-thousand ($1,000.00) a week or agreed upon overrides, whichever was greater for a period of one year,” but that in November 2002 he began to receive less than $1,000 a week. Smith averred that “[t]he representations were false and made with intent that [he] rely on the representations, or were recklessly made or made negligently and [Smith] did rely on them.” At the time Smith entered into the employment contract with Procom, Leitch was the president of Procom; Crews stated in his affidavit that he was not “employed by [Procom],” and that his affiliation with Procom was as “an officer of a corporation which provides consulting services to [Procom].”

Concerning his employment with Pro-com and his contacts with the State of Texas, Smith stated in his affidavit:

“4. When I was employed by Pro-com, the vast majority of the time I performed my duties in the State of Alabama. Occasionally, I was called to perform work in Georgia. I never performed any work in the State of Texas and my contacts to Texas were limited to occasional emails to Russell Leitch and receiving my paycheck from there.
“5. I do not own any real property, personal property, or other assets located in Texas.
“7. During my employment with Procom, I can remember both Hal Crews and Russell Leitch coming into Alabama for business associated directly with Procom matters. I remember them being in this state at least three times each. I also know that Russell Leitch owns warehousing in Alabama.
“8. Calculation of payroll of employees of Procom in Alabama, including my own[,] was done in Alabama. Those responsible for calculating payroll still reside here. They are Katherine Price, Amy Weeks, and a woman named Tracey who still works for Procom but [whose] last name I cannot recall.
“9. The original records of payroll relevant to my claim are, to the best of my knowledge, still in Alabama.
“10. I know of at least two other former employees of Procom whose employment contracts were breached in the same manner as my own. They are John Crosby and Hank Smith, Sr.[,] my father. John Crosby lives in Alabama. Hank Smith, Sr. lives in Utah. I know of three other former employees of Procom who never received the full amount of their reserve pay.
“11. Those who have personal knowledge of the day-to-day goings on at Pro-com while I was employed there still reside in Alabama, except for Russell Leitch and Hal Crews.”

In regard to their contacts with the State of Alabama, Leitch and Crews affirmed identically, in relevant part:

“3. I do not own any real property, personal property, or other assets located in Alabama, nor does any member of my family.
“5. I have not worked in the State of Alabama, never earned any income attributable to work in that state, paid any taxes there, or filed any tax returns there.
“6. I have never solicited or conducted any business in the State of Alabama, nor have I ever advertised in Alabama for any business on my behalf or on behalf of anyone else. I have also never sent any agents or employees into Alabama to solicit or conduct any business on my personal behalf.
“7. I do not have, nor have I ever had, any bank accounts, offices, or telephone listings in the State of Alabama.
“8. I own no stock in any Alabama corporations.
“9. I have not contracted to supply any goods or services in Alabama, nor have I derived any revenues from goods used or consumed or services rendered in Alabama.
“10. None of the actions attributed to me in the complaint were performed in Alabama.
“11. I have never been previously sued (or brought suit) in an Alabama court. No Alabama court has ever before exercised personal jurisdiction over me.
“12. I have never before knowingly or intentionally availed myself of the benefits and protections of the laws of Alabama.
“13. Having to defend this case in Alabama would work a substantial hardship on me and my family.”

Ill. Enforcement of the Outbound Foruntr-Selection Clause

In their petition for a writ of mandamus, Procom, Leitch, and Crews contend that they have a clear legal right to have the outbound forum-selection clause enforced because, they say, Smith did not show that enforcement of the forum-selection clause would be unfair or unreasonable. This Court, in Ex parte Rymer, supra, stated:

“Alabama has adopted the majority rule that an outbound forum-selection clause should be enforced so long as enforcement is neither unfair nor unreasonable under the circumstances of the case. Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). The party challenging the enforcement of such a clause has the burden of clearly establishing either
“ ‘(1) that enforcement of the forum-selection clause[] would be unfair on the basis that the contract[ ] ... [was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action.’
“Sutherland, 700 So.2d at 352.”

860 So.2d at 341.

In Smith’s response to the motion to dismiss, he asserted that the contract was “affected by fraud” because, he alleged, “Crews and Leitch promised [him] at least one thousand ($1,000.00) per week. When they promised [him] that wage they did not intend to abide by the agreement.” Smith also stated that “[i]f permitted to proceed with discovery and trial of this issue [i.e., fraud], [he] will prove that the Defendants engaged in a consistent practice of shorting employees the agreed upon amount of wages.” He stated in his affidavit that he knew “of at least two other former employees of Procom whose employment contracts were breached in the same manner as [his] own” and that he knew of “three other former employees of Procom who never received the full amount of their reserve pay.”

In determining whether a contract has been “affected by fraud,” this Court has stated:

“[T]he proper inquiry is whether the forum-selection clause is the result of fraud in the inducement in the negotiation or inclusion in the agreement of the forum-selection clause itself. If the forum-selection clause is the result of fraud in the inducement, then the fraud exception to the enforceability of the clause applies. However, if the claim of fraud in the inducement is directed toward the entire contract, the fraud exception to enforcement of the forum-selection clause does not apply. Cf. Investment Mgmt. & Research, Inc. v. Hamilton, 727 So.2d 71, 78 (Ala.1999)(‘[W]hen a claim of fraud in the inducement is directed toward the arbitration clause itself, the issue is adjudicated by the court. On the other hand, when a claim of fraud in the inducement is directed toward the entire contract ... the issue is subject to arbitration.’).”

Ex parte Leasecomm Corp., 879 So.2d 1156, 1159 (Ala.2003). Smith has not alleged that the forum-selection clause itself was affected by fraud; he has alleged only that he relied upon fraudulent statements pertaining to his salary when he entered into the employment contract. Therefore, he has failed to meet his burden of “clearly establishing]” that enforcement of the forum-selection clause was unfair because the clause was “affected by fraud.” Ex parte Rymer, 860 So.2d at 341.

In his response to the defendants’ motion to dismiss, Smith asserted also that the contract was affected by overweening bargaining power, stating in support of that assertion that Procom, Leitch, and Crews “put the forum clause common in their Alabama employment contracts to disway [sic] employees and former employees from enforcing their employment agreements due to the cost of litigating the relatively small amounts at issue in Dallas, Texas.” This conclusory statement does not establish that the employment contract was affected by overweening bargaining power; accordingly, Smith has failed to establish that enforcement of the outbound forum-selection clause would be unfair.

Smith further contended in his response to the motion to dismiss that enforcement of the forum-selection clause “would be unreasonable on the basis that Dallas, Texas would be seriously inconvenient for the trial of this action.” Smith elaborated:

“Almost all of the relevant witnesses to this action are located in or about Jefferson County. Those who calculated payroll are located in Jefferson County. The relevant documents are all located in and around Jefferson County. Those who are aware of the day-to-day operations of [Procom] are located in Jefferson County. To try these issues in Dallas, Texas would require all of these witnesses and documentation located here to be transferred to Dallas. There are at least five witnesses that [Smith] will require to prove his case. The expense and time associated with transferring five people in addition to [Smith], and all relevant documents to Dallas to litigate makes trial of these issues thus seriously inconvenient.”

In Ex parte Rymer, supra, we stated:

“In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [(Ala.1999)].
“ “When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or business persons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.’
“Ex parte Northern Capital Res. Corp., 751 So.2d at 14.”

860 So.2d at 342-43.

First, Procom is a corporation, which, according to its petition for a writ of mandamus, hired Smith to “supervise the activities of [its] sales force and to perform other duties to be determined from time to time by Procom.” The record does not establish Smith’s profession before his employment with Procom, but we can infer that he had sufficient business acumen so as to be qualified to be hired in a supervisory capacity. Second, the contract was an employment agreement between Pro-com and Smith. Third, Procom’s headquarters are located in the chos.en forum, Dallas, Texas, and according to its petition, “witnesses and documents necessary for [Procom, Leitch, and Crews’s] defense are located in Dallas County, Texas.” Also, Leitch and Crews are residents of Dallas, Texas. Fourth, Smith does not allege that he was unable to understand the terms of the employment contract, and the outbound forum-selection clause is clearly and unambiguously written. Fifth, Smith does not allege that extraordinary circumstances have arisen that would make Dallas, Texas, seriously inconvenient as a forum.

We conclude that a consideration of these five factors, as applied to this case, does not clearly indicate that a trial in Dallas, Texas, would be so difficult and inconvenient that it would effectively deprive Smith of his day in court. Ex parte Rymer, supra. As we have noted, the forum-selection clause also provides that “the prevailing party shall be reimbursed by the other party for all costs and expenses (including, without limitation, attorney’s fees and costs) incurred in connection with such action or proceeding.”

Accordingly, Smith failed to clearly establish that enforcement of the outbound forum-selection clause would be either unfair or unreasonable.

TV. Enforceability of Outbound Forum-Selection Clause by Nonsignatories

Leitch and Crews state in the petition for a writ of mandamus that they “are both entitled to have the outbound forum-selection clause applied to Smith’s claims asserted against them” even though they were not signatories to Smith’s employment agreement with Procom. Leitch and Crews cite no Alabama cases that directly address the issue whether a forum-selection clause can apply to one who was not a signatory to the contract containing it, nor has our research revealed any Alabama case directly on point. However, federal courts have held that forum-selection clauses bind nonsignatories that are closely related to the contractual relationship or who are “transaction participants.” See, e.g., Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209-10 (7th Cir.1993) (“In order to bind a non-party to a forum selection clause, the party must be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it will be bound.”); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n. 5 (9th Cir.1988) (“We agree with the district court that the alleged conduct of the non-parties is so closely related to the contractual relationship that the forum selection clause applies to all defendants.”); Brock v. Entre Computer Ctrs., Inc., 740 F.Supp. 428, 431 (E.D.Tex.1990) (“[T]he court finds that the forum selection clause applies to all parties to the contract, whether signatories or not.”); and Clinton v. Janger, 583 F.Supp. 284, 290 (N.D.Ill.1984) (“a range of transaction participants, parties and non-parties, should benefit from and be subject to forum selection clauses”). This authority is persuasive, but not binding. See Weems v. Jefferson-Pilot Life Ins. Co., 663 So.2d 905, 913 (Ala.1995), quoting Ex parte Gurganus, 603 So.2d 903, 908 (Ala.1992)(“ ‘[tjhis Court may rely on a decision of any federal court, but it is bound by the decisions of the United States Supreme Court’ ”).

We also note an analogy between this Court’s enforcement of arbitration clauses as to nonsignatories to a contract and the enforcement of the forum-selection clause in this instance. This Court has stated that “[i]f a nonsignatory’s claims are ‘intertwined with’ and ‘related to’ the contract, arbitration can be enforced.” Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 527 (Ala.2001); see also Stevens v. Phillips, 852 So.2d 123, 130 (Ala.2002), quoting Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121 (3d Cir.1993) (“ ‘ “Because a principal is bound under the terms of a valid arbitration clause, its agents, employees, and representatives are also covered under the terms of such agreements.” ’ ”), and Ex parte Gray, 686 So.2d 250, 251 (Ala.1996)(“A party should not be able to avoid an arbitration agreement merely by suing an employee of a principal”). Because Smith’s claims against Leitch and Crews arise out of statements Leitch and Crews allegedly made while negotiating Smith’s employment contract with Procom, we conclude that Leitch and Crews are entitled to enforce the outbound forum-selection clause contained in the employment contract.

V. Conclusion

Accordingly, we conclude that Procom, Leitch, and Crews have shown a clear legal right to have the action against them dismissed on the basis that venue in the Jefferson Circuit Court is, by application of the outbound forum-selection clause, improper. The trial court exceeded its discretion in denying their motion to dismiss. We direct the court to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala.R.Civ.P.

PETITION GRANTED; WRIT ISSUED.

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

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

JOHNSTONE, Justice

(concurring in part and concurring in the result).

I concur in the holding and its rationale to the effect that the forum selection clause is enforceable between the parties. I note that Smith has not presented evidence that the physical attendance of all or even any of the Alabama-resident nonparty witnesses he mentions would be necessary for a fair trial or that the documents he mentions would be too cumbersome or sensitive to take to a trial in Texas. See Ex parte Wiginton, 743 So.2d 1071 (Ala.1999). Accord Ex parte General Nutrition Corp., 855 So.2d 475 (Ala.2003).

I concur in the result of extending the benefit of the forum selection clause to the nonsignatories. The plaintiffs claims against them are intertwined with his claims against the signatory; the nonsig-natories are not excluded from the operation of the clause by its text; and the forum selection clause is being enforced in favor of the signatory itself. See Auvil v. Johnson, 806 So.2d 343 (Ala.2001). The cases cited in the main opinion to the effect that a nonsignatory may be bound do not seem apt. The party to be bound in the case before us is Smith, a signatory. The issue is whether the nonsignatories may be benefited.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte WESTERN MENTAL HEALTH CENTER, a division of the Jefferson County Board of Health. (In re P.H. v. James B. Koikos and The Bright Star Restaurant, Inc. and In re M.S. v. James Kevin Stewart et al.).
    1011990 and 1021481.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      J. Clinton Pittman, David S. Maxey, and Taffi S. Stewart of Spain & Gillon, LLC, Birmingham, for petitioner.
    Bennett L. Pugh, Melisa C. George, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for respondent The Bright Star Restaurant, Inc.
    Daisy M. Holder, Birmingham, for respondent M.S.
    Judge Allwin E. Horn III, pro se.
   PER CURIAM.

Western Mental Health Center, a division of the Jefferson County Board of Health (hereinafter referred to as “Western”), petitions this Court for a writ of mandamus directing Judge Dan C. King III of the Jefferson Circuit Court, Bessemer Division, to vacate his protective order requiring Western to produce any records it may have pertaining to P.H. (case no. 1011990). Western also petitions this Court for a writ of mandamus directing Judge Allwin E. Horn III of the Jefferson Circuit Court to vacate his order requiring Western to produce any records it may have pertaining to M.S. (case no. 1021481). We grant both petitions and issue the writs.

Facts and Procedural History

Case No. 1011990

On June 4, 2001, P.H. sued James B. Koikos, owner of The Bright Star Restaurant, Inc. (hereinafter referred to as “Bright Star”), where P.H. worked, alleging assault and battery and the tort of outrage. P.H. maintained that, as a result of Koikos’s alleged conduct, she suffered physical injuries, financial hardship, and mental anguish. P.H. later amended her complaint to allege negligence and wantonness. During discovery, Koikos filed a request for the production of information regarding P.H.’s alleged mental suffering. P.H. objected to the production of the information on the grounds of the psychotherapist-patient privilege. See §§ 34-26-2 and 22-50-62, Ala.Code 1975, and Rules 503 and 503A, Ala. R. Evid. Subsequently, P.H. again amended her complaint to add Bright Star as a defendant, and to demand workers’ compensation benefits.

In response to discovery concerning P.H.’s medical treatment, Koikos and Bright Star served a subpoena upon Western, a nonparty to the litigation, requesting that Western

“produce and permit [Koikos and Bright Star] to inspect and to copy each of the following documents:
“Your entire file, including but not limited to, all hospital records, physical therapy notes/records, office notes or x-ray reports (but no x-ray films), consultation reports, copies of correspondence to or from attorneys or other physicians or other written material contained in your file on the care and treatment of [P.H.], together with copies of [all invoices for services rendered] to said patient, showing the dates of treatment and charges made.... ”

Western objected; it moved the trial court to quash the subpoena, or, in the alternative, to issue a protective order. Koikos and Bright Star responded, arguing that because P.H. had placed her mental state at issue, they would be prejudiced if they were unable to obtain the records. On May 24, 2002, after a hearing, the trial court orally informed the parties that it intended to require production but would issue a protective order. Western filed a motion requesting that the trial court reconsider its ruling. However, on June 10, 2002, the trial court overruled Western’s objections and ordered it to produce the requested records. It also entered a protective order, stipulating that only persons and entities having current or prior connections to either the records or the pending litigation would have access to the records. The order further stated that all records produced would be placed under seal and would not become part of the public record of the case. Western petitions this Court for a writ of mandamus directing the Jefferson Circuit Court, Bessemer Division, to vacate that order.

Case No. 102U81

M.S. sued James Kevin Stewart and others as a result of injuries she sustained in an automobile accident. M.S. contends that she sustained property damage, serious physical injuries, emotional anxiety and distress, other pain and suffering, and ongoing medical costs as a result of Stewart’s negligence or wantonness. M.S. also claimed that she was rendered permanently disabled as a result of the accident. In response to discovery concerning M.S.’s injuries, Stewart served a subpoena upon Western, a nonparty to the litigation, requesting that Western

“produce and permit [Stewart] to inspect and to copy each of the following documents:
“Any and all records, reports, documents, x-ray reports, physician’s and nurse’s notes, emergency room records, bills or invoices, and any and all other written material contained in your charts or files, in your possession, or under your control, relative to the care, treatment and confinement of [M.S.]....
“Please understand that this request is for any and all records which in any way relate to [M.S.].”

Western objected, and it moved for the court to quash the subpoena. Stewart filed a response to its motion, and the trial court conducted a hearing on the matter. The trial court overruled Western’s objections and ordered that it produce the requested documents. Specifically, the circuit court issued an order requiring Western to produce all records relating to M.S., “[keeping them] confidential between the parties and their attorneys”; however, this order did not “preclude the utilization of the information obtained by these records ... as evidence in open court at hearings in this present action, or at the trial of this case.” Western petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order and to quash the subpoena.

Standard of Review

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000).”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). Additionally,

“ ‘[a] petition for the writ of mandamus is the proper means for obtaining review of “whether a trial court has abused its discretion ... in resolving discovery matters, and in issuing discovery orders.” ’ Ex parte Water Works & Sewer Bd. of the City of Birmingham, 723 So.2d 41, 42 (Ala.1998)(quoting Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala.1996)).... ‘Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion.’ Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala.1996) (citations omitted).”

Ex parte Pepper, 794 So.2d 340, 342 (Ala.2001).

Analysis

The issue presented in both cases is whether the psychotherapist-patient privilege, codified at § 34-26-2, Ala.Code 1975, bars discovery of certain mental-health records maintained by Western.

I.

In its petitions, Western argues that the records Stewart subpoenaed regarding M.S. and those Koikos and Bright Star subpoenaed regarding P.H. are privileged. We agree. “Although Alabama law does not recognize a physician-patient privilege of confidentiality, the legislature has adopted a psychotherapist-patient privilege.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). The Code section adopting this privilege, § 34-26-2, Ala.Code 1975, states, in pertinent part:

“[T]he confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”

Additionally, “[i]t is not disputed that ... medical records, created during the psychiatrist-patient relationship, are included in the confidential relationship and are also privileged.” Ex parte Rudder, 507 So.2d 411, 413 (Ala.1987). This privilege, we have held, is strongly rooted in public policy:

“‘[A] psychiatrist must have his patient’s confidence or he cannot help him. “The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition.... It would be too much to expect them to do so if they knew that all they say — and all that the psychiatrist learns from what they say — may be revealed to the whole world from a witness stand.” ’
“Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.”

Rudder, 507 So.2d at 413. Furthermore, the meaning of the Alabama psychotherapist-patient privilege statute is clear from the plain language of the statute itself. See United Serv. Stations, 628 So.2d at 504 (citing King v. National Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.1992)).

There are five recognized exceptions to the psychotherapy-patient privilege. First, “[t]his Court has recognized an exception to the privilege where, in a child custody matter, the mental state of one of the parents is at issue and a proper resolution of child custody requires disclosure of otherwise privileged psychiatric records.” United Serv. Stations, Inc., 628 So.2d at 504 (citing Harbin v. Harbin, 495 So.2d 72, 74 (Ala.Civ.App.1986)). The Court has also recognized another exception where a defendant in a criminal trial raises the defense of insanity. See Salmon v. State, 460 So.2d 334, 337 (Ala.Crim.App.1984). Additionally, Alabama recognizes exceptions for communications relevant in proceedings to hospitalize a patient for mental illness, communications made during a court-ordered examination of the mental or emotional condition of a party or witness, and communications concerning a breach of duty arising out of the psychotherapist-patient relationship. Rule 503, Ala. R. Evid.

The defendants assert that the plaintiffs have waived their protection under the statute by bringing suit based on alleged mental damages; however, in the recent case of Ex parte Pepper, 794 So.2d at 343-44, this Court held:

“ ‘There is no implication in the language of § 34-26-2 that the legislature intended an exception to the privilege where the issue of a party’s mental condition is raised in a civil proceeding. Given the first rule of statutory construction, that where the meaning of the plain language of the statute is clear, it must be construed according to the plain language, see, e.g., King v. National Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.1992), this Court will not create such an exception. Moreover, such an exception would conflict with the public policy underlying the psychotherapist-patient privilege noted above.’
628 So.2d at 504. We do not believe that [the defendant’s] competing interest outweighs the public policy on which the psychotherapist-patient privilege is based, nor do we find any implication that the Legislature intended an exception to the psychotherapist-patient privilege to be applied where a party seeks information relevant to the issue of the proximate cause of another party’s injuries. Thus, we are unwilling to adopt such an exception.”

See also United Serv. Stations, 628 So.2d at 504. Thus, Alabama has not recognized an exception to the psychotherapist-patient privilege when, in civil actions such as this one, the plaintiff merely alleges mental anguish. See Pepper, supra; United Serv. Stations, supra.

We hold that by merely alleging mental anguish and emotional distress the plaintiffs in these cases have not waived the psychotherapist-patient privilege conferred by § 34-26-2, Ala.Code 1975. Western is asserting the psychotherapist privilege on behalf of both P.H. and M.S. Because the privilege applies in these cases and has not been waived, Western is not required to produce the subpoenaed documents.

II.

In response to Western’s objection to Stewart’s subpoena requesting the documents relating to M.S., Stewart at trial challenged the constitutionality of the psychotherapist-patient privilege. The trial court ruled that denying Stewart discovery of the requested records would make it impossible for Stewart to defend against M.S.’s claims, thereby depriving him of his rights under Ala. Const.1901, Art. I, §§ 10 and 13, and U.S. Const, amend. XIV. In this mandamus proceeding, the respondent specifically argues that because emotional damages are at the center of M.S.’s claims against Stewart, Stewart is unable to properly prepare a defense to those claims without access to the subpoenaed documents.

Alabama Const.1901, Art. I, § 10, provides “[t]hat no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.” Additionally, Ala. Const.1901, Art. I, § 13 provides “[t]hat all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and Justice shall be administered without sale, denial, or delay.” Those sections protect the fundamental rights of due process, including the right to have access to information concerning the claims of an opposing party and the right to have a reasonable opportunity to controvert such claims. See Almon v. Morgan County, 245 Ala. 241, 246, 16 So.2d 511, 515 (1944). These fundamental rights may not be abrogated by the Legislature. See Barlow v. Humana, Inc., 495 So.2d 1048, 1051 (Ala.1986). Furthermore,

“[t]his Court considers a challenge to the constitutionality of a statute with a presumption and intendment in favor of the statute, and it seeks ‘to sustain rather than strike down the enactment of a coordinate branch of the government.’ However, if the statute ‘unreasonably invades rights guaranteed by the Constitution, we have not only the power but the duty to strike it down.’ Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 159 (Ala.1991).”

Bassett v. Newton, 658 So.2d 398, 402 (Ala.1995).

In Ex parte Rudder, supra, the defendants in a defamation action challenged the psychotherapist-patient privilege established by § 34-26-2, Ala.Code 1975, as unconstitutional under the First Amendment of the United States Constitution. In that case, a television station had broadcast a story alleging that certain physicians were engaging in abusive prescription-drug practices, and that one of the physicians, a psychiatrist, had improperly prescribed the drug dexedrine to the local district attorney. The psychiatrist sued the television station and its investigative reporter, claiming defamation and an invasion of his right to privacy. In presenting their defense, the television station and the reporter filed a motion seeking the production of all medical records concerning the psychiatrist’s treatment of the district attorney. However, the district attorney asserted the psychotherapist-patient privilege, and the psychiatrist refused to turn over the records. The trial court allowed discovery of the requested documents, ruling that they were “relevant and material to the defendants’ defense of truth, [and] that the psychiatrist-patient privilege gives way to the right grounded in the First Amendment to the United States Constitution.” Rudder, 507 So.2d at 412.

The psychiatrist petitioned this Court for a writ of mandamus, arguing that the trial court exceeded its discretion in ordering discovery of the privileged records. The television station and the reporter, however, argued that the psychotherapist-patient privilege should yield to the constitutional right to free expression guaranteed by the First Amendment. They argued that because the claims alleged against them were defamation claims, only access to the privileged records would allow them to present the defense of truth.

This Court held, among other things, that the television station and the reporter had failed to demonstrate that their constitutional rights would be violated if the Court allowed the district attorney to assert his privilege. Specifically, this Court noted that the defendants had

“failed to demonstrate that they would be unduly handicapped in defending this lawsuit [without the privileged medical records]. To the contrary, representatives of [the television station] repeatedly stated that the broadcasts in issue were ‘backed up by facts,’ that ‘we made clear that everything we said was factual,’ and that ‘all the claims [made by [the television station]] were substantiated with facts.’ Thus, [the] defendants have acknowledged that they have other non-privileged evidence available to them to defend against [the psychiatrist’s] allegations.”

Rudder, 507 So.2d at 417.

In this case, the respondent argues that the mental-health records relating to M.S. Stewart seeks to discover “could potentially be at the core of’ Stewart’s defense. Specifically, the respondent alludes to M.S.’s deposition, in which she allegedly testified that her primary claims for damages involved “Post-Traumatic Stress Disorder and generalized anxiety.” However, the respondent has failed to include a copy of the transcript of this deposition in the materials before this Court. In fact; the respondent has failed to include any evidence indicating that M.S.’s claims for damages based on mental distress are central to her case or that such claims will even be argued at trial.

When considering a petition for a writ of mandamus, this Court does not have a record of the proceedings below. Instead, the parties are required to submit the portions of the record they wish this Court to consider. See Rule 21, Ala. R.App. P. “In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an ‘opportunity to supplement the “record” by attaching exhibits of its own.... ’ Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988).” Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003). In this case, the respondent has failed to include any evidence demonstrating that mental-health records relating to M.S. held by Western are necessary to Stewart’s defense in this action. Therefore, the respondent has “failed to show that any constitutional right has been violated by the retention of the privilege legislatively extended to the [plaintiffs] medical records.” Rudder, 507 So.2d at 417.

III.

Bright Star and Koikos argue that the psychotherapist-patient privilege found in § 34-26-2 violates their due-process rights to adequately defend themselves. Specifically, Bright Star and Koikos argue that without access to the requested records, they will be deprived of their due-process rights afforded under Ala. Const. 1901, Art. I, § 6, and under the United States Constitution. On its face, Ala. Const.1901, Art. I, § 6, concerns only criminal prosecutions, and Bright Star and Koikos have failed to explain how any rights they may have under Art. I, § 6, have been violated in this civil action. Similarly, Bright Star and Koikos present no evidence establishing that their fundamental due-process right to defend themselves against P.H.’s various claims will be violated if they are denied access to P.H.’s mental-health records.

Conclusion

Western has shown that it has a clear legal right to the writs of mandamus it seeks. We hold that the records the trial courts ordered Western to produce are privileged and confidential and are not subject to production under the facts of these cases. Therefore, the petitions are granted and the trial courts are directed to vacate their orders compelling discovery.

PETITIONS GRANTED; WRITS ISSUED.

HOUSTON and JOHNSTONE, JJ., concur.

SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur in the result.

      . Although Western argued that the records Koikos and Bright Star requested were privileged, it moved for the issuance of a protective order in the event that discovery of the records was permitted under an exception to the psychotherapist-patient privilege.

      . M.S. died during the discovery phase of this case. Although the trial court indicated that M.S.’s estate was to be substituted as the plaintiff, it is unclear whether that has actually been done. Therefore, for the purposes of clarity, this Court will refer to both M.S. and her estate as "M.S.”

      . Although M.S. generally alleged in her complaint that she was permanently disabled, she did not clarify whether her disability was mental, physical, or both.

      . We note that the psychologist may assert the psychotherapist-patient privilege on behalf of the patient. Watson v. State, 504 So.2d 339, 344 (Ala.Crim.App.1986). P.H. has filed an answer with this Court maintaining that she agrees with the position Western has taken in its petition for the writ of mandamus. Additionally, M.S.’s estate has filed an answer with this Court asserting that it does not oppose Western’s petition for the writ of mandamus.

      . Judge Allwin Horn, circuit judge for Jefferson County, answered Western’s petition for the writ of mandamus in case no. 1021481 and also filed a responding brief containing arguments supportive of the arguments Stewart made at trial.

      . Ala. Const. 1901, Art. I, § 6, provides:
      "That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law; but the legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement."


author: HARWOOD, Justice.

text:
    Roger W. TURENNE et al. v. Patti W. TURENNE et al.
    1021056.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      Eddie Leitman and Christopher R. Hood of Leitman, Siegal & Payne, P.C., Birmingham, for appellants.
    Thomas G. Mancuso and Robert E. Poundstone IV of Maynard, Cooper & Gale, P.C., Montgomery; and Robert W. Tapscott, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellees.
   HARWOOD, Justice.

This appeal arises from a second lawsuit involving Roger W. Turenne and Patti W. Turenne. The dispute concerns a marital settlement agreement, which was incorporated and merged into the parties’ divorce judgment. In the first lawsuit, Roger filed a motion for relief in the domestic relations division of the Montgomery Circuit Court, asserting that his former wife had not complied with some of the terms of their marital settlement agreement. On April 15, 2002, the domestic relations court entered an order; that order stated:

“The Court ... finds that the Domestic Relations Division is not the proper forum to hear the issues being complained of concerning the contractual obligations of the parties as [they] relate[ ] to the nursing home and retirement matters.[]
“For the foregoing reason, the requested actions by the parties in the Domestic Relations Division are hereby terminated and this file is closed.
“The parties may seek their relief through the Circuit Court of Montgomery County, Alabama.”

Roger did not appeal from this order.

On May 14, 2002, Roger W. Turenne, the Roger W. Turenne 2001 Revocable Trust, and Turenne PharMedCo, Inc. (hereinafter referred to collectively as “the plaintiffs”), sued Patti W. Turenne, individually and as trustee of the Patti W. Tur-enne Revocable Trust; Christopher R. Schmidt, Patti’s son, as trustee of the Patti W. Turenne Revocable Trust; Timothy W. Schmidt, Patti’s son, as trustee of the Patti W. Turenne Revocable Trust; Talladega Healthcare Center, Inc.; Albertville Healthcare Center, Inc.; Hillview Properties, LLC; as well as other fictitiously named defendants, on claims alleging in count I, fraudulent inducement; in count II, suppression of material facts; in count III, breach of contract against Patti Tur-enne; in count IV, breach of contract against Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC; in count V, anticipatory breach of contract against Tal-ladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC; and in count VI and count VTI, money due and owing.

Patti Turenne, Christopher Schmidt, Timothy Schmidt, Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC, moved to dismiss counts I (fraudulent inducement), II (suppression of material facts), III (breach of contract as to Patti Turenne), and V (anticipatory breach of contract as to Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC) because, they stated in their motion, “as a matter of law, these claims fail to state claims upon which relief can be granted.” The motion to dismiss also stated that those four claims “all stemfmed] from a Marital Settlement Agreement entered between [Roger Turenne] and Plaintiffs former wife, Defendant Patti Turenne.” The plaintiffs filed a response in opposition to the motion to dismiss. The circuit court granted the motion to dismiss, stating in relevant part:

“The Court finds that Counts I, II, III and V of Plaintiffs’ Complaint arise out of the Marital Settlement Agreement, and accordingly, the Court holds that it is without jurisdiction to adjudicate said claims, and that the appropriate court to hear such claims is the Domestic Relations Division of the Circuit Court of Montgomery County, Alabama.
“The Court hereby grants Defendants’ Motion and dismisses Counts I, II, III and V of Plaintiffs’ Complaint.
“With respect to the dismissal of Counts I, II, III and V, the Court hereby directs entry of a final judgment as to the dismissal of these claims, as the Court expressly determines that there is no just reason for delay and expressly directs the entry of judgment, as the Court finds that appellate review of this Order will expedite the ultimate resolution of the above-styled cause.”

The plaintiffs appeal, arguing that “the trial court erred in holding that it was without jurisdiction to adjudicate the claims stated in Counts I, II, III, and V of Plaintiffs’ Complaint.”

The standard of review for a motion to dismiss is well-settled.

“ ‘The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether “when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.” Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A “dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’
“Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003).”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1017 (Ala.2003).

The record reveals that on December 12, 2001, Roger Turenne and Patti Turenne entered into a marital settlement agreement. On December 13, 2001, a final judgment of divorce was entered, divorcing Roger Turenne and Patti Turenne. The judgment stated, in pertinent part, that “the ‘Marital Settlement Agreement’ entered into between the parties on the 12 day of December, 2001, is hereby incorporated and merged into this Order, the same to be legally binding on both parties and enforceable by either.” The marital settlement agreement provided for a property division between Roger Turenne and Patti Turenne. Before their divorce, the couple jointly owned several businesses, including a medical-supply company and two nursing homes. Under the agreement, Roger received, among other things, PharMedCo, a pharmaceutical and medical-supply company, and Patti received the two nursing homes — Albertville Healthcare Center, Inc., and Talladega Healthcare Center, Inc. Hillview Properties, LLC, operates a nursing home under the name Hillview Terrace. According to the plaintiffs’ complaint, “Patti Turenne is a 60% member of Hillview Properties, and ... Chris Schmidt is a 40% member of Hillview Properties.” The marital settlement agreement did not purport to change the ownership of Hillview Properties.

Section 3.3(D) of the marital settlement agreement provided:

“Pursuant to the ‘Interim Settlement Agreement’[] dated September 20, 2001, PharMedCo and Albertville Healthcare Center and Talladega Healthcare Center shall execute a pharmacy and medical supply agreement developed on terms and conditions satisfactory to both parties, but which shall provide generally for a term of 4 years, prudent buyer standards, and other customary terms and conditions for Albertville and Talladega. The contract will be for four (4) years at Albertville Healthcare Center and Talladega Healthcare Center commencing effective as of the signing of the contracts. PharMedCo and Hillview Terrace Facility shall enter into an extension of the existing contract for an additional three years at Hillview Terrace Facility commencing effective from its current termination date. The contracts for Albertville, Talladega and the contract extension for Hillview will be signed not later than January 31, 2002. If not signed by that date, the court will be requested to resolve or appoint a mediator to resolve that issue. In the event of a change of control for PharMedCo, said change of control being defined as a fifty (50%) percent or more change in ownership, during the term of the Albertville and Talladega contracts, either party shall have the right to terminate such contract.”

The contracts between PharMedCo and Albertville Healthcare Center and Tallade-ga Healthcare Center, as well as the contract extension between PharMedCo and Hillview Properties, were not signed by January 31, 2002.

The plaintiffs argue on appeal that “the Civil Division of the Circuit Court of Montgomery County is the appropriate forum in which to litigate [their] claims.... ” They explain:

“The Domestic Court properly exercised its preference not to retain jurisdiction over the claims that are the subject of this appeal, as it recognized that those claims were in essence nothing more than a commercial dispute, and accordingly held that the Domestic Relations Division of the Circuit Court of Montgomery County was not the proper forum within which to litigate those claims. Therefore, the judgment of the trial court is due to be reversed.”

The judgment divorcing Roger and Patti specifically stated that “the ‘Marital Settlement Agreement’ entered into between the parties on the 12 day of December, 2001, is hereby incorporated and merged into this Order, the same to be legally binding on both parties and enforceable by either.” In Killen v. Akin, 519 So.2d 926, 930 (Ala.1988), this Court explained:

“‘The question whether a separation agreement or a property settlement is merged in the decree or survives as an independent agreement depends upon the intention of the parties and the court....’ East v. East, 395 So.2d 78 (Ala.Civ.App.1980), cert. denied, 395 So.2d 82 (Ala.1981). If there is an agreement between the parties and it is not merged or superseded by the judgment of the court, it remains a contract between the parties and may be enforced as any other contract. However, any part of the agreement that is merged into the judgment is subject to the equity power of the court and is no longer of a contractual nature. Oliver v. Oliver, 431 So.2d 1271, 1275 (Ala.Civ.App.1983); East v. East, supra.

(Emphasis supplied.) The Court of Civil Appeals, in East v. East, 395 So.2d 78 (Ala.Civ.App.1980), stated that “if the entire [settlement] agreement became merged in the decree, only the decree and not the contract may be enforced, Horan v. Horan, 259 Ala. 117, 65 So.2d 486 (1953).” 395 So.2d at 80. Therefore, the Turennes’ marital settlement agreement is no longer an enforceable contract; it was subsumed by the divorce judgment.

Act No. 250, Ala. Acts 1959, effective October 1, 1959, created a family-relations division of the circuit court in counties having a certain range of population; Montgomery County was one of those counties. As amended, § 1 of Act No. 250 provides, in pertinent part:

“The family relations divisions of said court shall, as its primary function, handle all cases in such county involving divorces, annulments of marriages, custody and support of children, granting and enforcement of alimony, proceedings under the Reciprocal Non-Support Act, and all other domestic and marital matters over which the circuit court has jurisdiction.... All cases involving domestic and marital matters which originate in the circuit shall be assigned to the family relations division; however, if the docket of the family relations division is overcrowded a portion of such cases may be reassigned by the presiding judge of the circuit to other circuit judges of said court.”

In Ex parte Boykin, 611 So.2d 322, 326 (Ala.1992), this Court stated that the “[ejreation of a division within each circuit court to hear matters exclusive to that division means that only certain judges within a circuit court will decide those matters germane to a division.” In Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938), this Court stated:

“It is uniformly held that where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.”

See also Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d 865, 867 (Ala.1993) (“The law is clear that the circuit court in which jurisdiction over a controversy is first invoked has exclusive jurisdiction over that controversy until that controversy is concluded, subject only to appellate review.”); Foster v. State Bank, 17 Ala. 672, 676 (1850)(“ ‘In all cases of concurrent jurisdiction, the court which first has possession of the subject must decide it.’—Smith v. McIver, 9 Wheat. Rep. 532 [(1824)].”); and Hill v. Hill, 757 So.2d 468, 471 (Ala.Civ.App.2000) (“[Tjhe Cullman Circuit Court, which heard the divorce case, maintained jurisdiction to hear the case because this case arose out of proceedings to divide the proceeds of the sale of property that occurred pursuant to a divorce judgment.”). Therefore, jurisdiction of all matters arising from the divorce judgment, including the provisions of the marital settlement agreement, remains with the domestic relations division of the Montgomery Circuit Court, which, in a proper exercise of its jurisdiction, had entered a judgment divorcing Roger Turenne and Patti Turenne.

We note that there is no claim that can be enforced on a contract theory, i.e., count III (breach of contract) and count V (anticipatory breach of contract), because the settlement agreement was merged into the divorce judgment. See similarly Folmar & Assocs. LLP v. Holberg, 776 So.2d 112, 116 (Ala.2000) (“We decline to extend the cause of action for intentional interference with a contract or business relationship to reach claims of interference with a judgment of divorce.”). However, the fraud actions, i.e., count I (fraudulent inducement) and count II (suppression of material facts), are within the ancillary jurisdiction of the domestic relations division of the Montgomery Circuit Court.

Neither of the circuit court judges involved in these matters stated, in their orders, that their dismissals were “with prejudice.” The domestic relations division of the circuit court stated that it was “not the proper forum to hear the issues being complained of,” and the circuit court stated that it was “without jurisdiction to adjudicate said claims.” Rule 41(b), Ala. R. Civ. P., provides:

“(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

(Emphasis supplied.) Thus, nothing in this opinion prevents Roger Turenne from refiling this action in the domestic relations court, and nothing prevents the domestic relations court from enforcing the divorce judgment it entered.

For the foregoing reasons, the trial court’s dismissal of counts I, II, III, and V of the complaint filed by the plaintiffs is due to be affirmed.

AFFIRMED.

SEE, BROWN, JOHNSTONE, and STUART, JJ., concur.

      . The "nursing home and retirement matters” referred to in the order are apparently business matters related to the Turennes' ownership of nursing and retirement homes.

      . The Interim Settlement Agreement provided that PharMedCo would continue to supply the nursing homes and stated, in relevant part:
      "A Pharmacy and Medical Supply Agreement shall be developed on terms [and] conditions satisfactory to both parties but which shall provide generally for a term of 4 years, prudent buyer standards, and other customary terms and conditions for Albert-ville and Talladega. In the event of a change of control (50% or more) of ownership of PharMedCo during the term of the Albertville and Talladega contracts either party shall have the right to terminate such contracts.”

      . Act No. 250 was amended by Act No. 1584, approved September 20, 1971, Ala. Acts 1971, and Act No. 1664, effective September 1, 1971, Ala. Acts 1971.


author: STUART, Justice.

text:
    BLOUNT RECYCLING, LLC, et al. v. CITY OF CULLMAN. Blount Recycling, LLC, et al. v. Cullman County Commission.
    1021683 and 1021766.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      Richard E. Smith, Greer B. Mallette, Deborah Alley Smith, and Jessica K. Stet-ler of Christian & Small, LLP, Birmingham, for appellant.
    Roy W. Williams, Jr., of Jackson & Williams, Cullman, for appellee City of Cullman.

      Dan J. Willingham and Matthew K. Carter of Fuller & Willingham, Cullman, for appellee Cullman County Commission.
   STUART, Justice.

Blount Recycling, LLC, appeals from the issuance of preliminary injunctions by the Cullman Circuit Court prohibiting Blount Recycling from picking up and hauling waste within the geographical limits of the City of Cullman and Cullman County. We dissolve the preliminary injunctions and remand.

Facts

The City of Cullman (“City”) and the Cullman County Commission (“Commission”) established the Cullman County Solid Waste Authority to provide for the disposal of solid waste generated within the geographical limits of Cullman County, which includes the City. In 1992, the City, the Commission, and the Cullman County Solid Waste Authority entered into the Waste Disposal Services Agreement. The agreement provided for the disposal of waste generated in Cullman County in a landfill built by the Authority.

The Commission, on January 27, 2000, enacted á resolution, and the City, on November 12, 2001, enacted an ordinance, to govern the collection of nonhazardous solid waste within the geographical limits of Cullman County. The language and purpose of the City ordinance and the Commission’s resolution are nearly identical; the provisions authorize the City and the Commission to provide for the collection and the disposal of nonhazardous solid waste, with a few exceptions noted for sharing services and for the issuance of certificates of exception to persons or entities who did not want the service.

Blount Recycling is a waste-collection and recycling company authorized by the Alabama Department of Environmental Management to do business in every county in Alabama. Blount Recycling operates a construction and demolition landfill in Blount County. In 2002, Blount Recycling was issued a business license to conduct its business in Cullman County. Shortly after it was issued a license to operate in Cull-man County, Blount Recycling began advertising its services and .picking up construction and demolition debris from around the City and in other parts of Cullman County.

On September 4, 2002, the City notified Blount Recycling by letter that Blount Recycling’s collection of the construction and demolition debris violated the City ordinance and the Commission’s resolution. The City requested that Blount Recycling discontinue its collection services. Blount Recycling refused. On April 3, 2003, the City filed an action seeking a declaration of the parties’ rights as to the collection of the debris and a petition seeking a preliminary injunction preventing Blount Recycling from collecting waste in the City; Blount Recycling responded by denying that it had violated any City ordinance.

The hearing on the City’s petition was held on June 12, 2003, arid the circuit court issued a preliminary injunction prohibiting Blount Recycling from collecting waste in the City until a final hearing was held in the casé.' The record does not include a transcript of the hearing. On July 7, 2003, Blount Recycling timely filed a notice of appeal with this Court.

The Commission similarly began its action against Blount Recycling by filing in the circuit court on May 20, 2003, a declaratory-judgment action and a petition seeking an injunction. Blount Recycling answered the petition on July 3, 2003, asserting that it had not violated the Commission’s resolution. On July 14, 2003, without conducting a hearing, the circuit court enjoined Blount Recycling from picking up or hauling solid waste in Cull-man County. Blount Recycling filed its notice of appeal with this Court on July 18, 2003.

On July 29, 2003, this Court granted Blount Recycling’s motion to consolidate for the purpose of appeal the case involving the City and the case involving the Commission.

Standard of Review

We review a preliminary injunction to determine whether the trial court exceeded its discretion in granting the injunction. “[T]he grant of, or refusal to grant, a preliminary injunction rests largely in the discretion of the trial court.” Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So.2d 17, 19 (Ala.1983). Moreover, if it cannot be shown that the trial court exceeded its discretion, the court’s “action will not be disturbed on appeal.” Id. A trial court exceeds its discretion when it “exceed[s] the bounds of reason, all the circumstances before the lower court being considered.” Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 82, 237 So.2d 470, 472 (1970).

Issues and Analysis

Case No. 1021683 — Blount Recycling v. The City

Blount Recycling argues that the City failed to establish the prerequisites necessary for the issuance of a preliminary injunction.

“Before entering a preliminary injunction, the trial court must be satisfied: (1) that without the injunction the plaintiff will suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff is likely to succeed on the merits of the case; and (4) that the hardship imposed upon the defendant by the injunction would not unreasonably outweigh the benefit to the plaintiff. Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)(citing Martin v. First Fed. Sav. & Loan Ass’n, 559 So.2d 1075 (Ala.1990)).”

Blaylock v. Cary, 709 So.2d 1128, 1130 (Ala.1997). If the party seeking the injunction fails to establish each of these prerequisites, then a preliminary injunction should not be entered.. If the trial court enters a preliminary injunction when these prerequisites have not been met, the trial court’s order must be dissolved and the case remanded. Teleprompter of Mobile, Inc. v. Bayou Cable TV, supra.

At the hearing on its petition for a preliminary injunction, the City offered, and the trial court admitted, in evidence the ordinance. According to the trial court’s order, the ordinance was the only evidence submitted by the City to establish the prerequisites for the issuance of the preliminary injunction; the materials before us do not indicate otherwise. The trial court’ concluded, based on the ordinance, the legal arguments and caselaw presented, and on Blount Recycling’s evidentiary submission, that the City would suffer irreparable harm if it did not issue the preliminary injunction and that a strong likelihood existed that the City would, succeed at a trial of the merits of this.cause. The trial court then issued the preliminary injunction in favor of the City.

Ordinance No. 2002-4 provides:

‘WHEREAS, the City of Cullman provides - collection services for solid wastes within the City limits of the City of Cullman and
WHEREAS, the City Council, after a public hearing and discussion have determined it' is necessary to the tranquility of a well ordered community, to secure the general comfort, health and general prosperity of the City and its citizens, that every person, household, business, industry or property generating solid wastes, garbage or ash as defined in the Solid Waste Disposal Act participate in and subscribe to the City of Cullman collection services unless granted a Certificate of Exception, and
“WHEREAS, it is and has been for many years a traditional governmental service of the City to provide garbage collection pursuant to Section 22-27-3, Code of Alabama, and
“WHEREAS, to ensure that all commercial enterprises in the City will be provided collection services, to limit the likelihood of illegal dumping, to insure all commercial enterprises within the City will be provided collection services at the same price for the same service, to permit the City to offer as a part of a comprehensive and efficient program for waste collection of discarded appliances and like material and to minimize the health and sanitation hazards,
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CULL-MAN AS FOLLOWS:
“That every person, household, business, industry or property within the city limits of the City of Cullman generating solid wastes, garbage or ash as defined in the Solid Waste Disposal Act shall participate in and subscribe to the City of Cullman collection services including all such solid wastes commonly referred to as commercial wastes (excluding hazardous wastes) and same to be collected by the City of Cullman Sanitation Department unless such person, household, business, industry or property is granted a Certificate of Exception or was sharing service for a period of at least six (6) months as provided in Code of Alabama, 1975, Section 22-27-B[ (a) ](2).
“IT IS ORDAINED that any business, industry or other property within the city limits of the City of Cullman generating solid wastes, garbage or ash as defined by the Solid Waste Disposal Act that is under contract with any private waste disposal company shall have six (6) months from the date of this [Ordinance] to participate in and subscribe to the City of Cullman Sanitation Department for the collection of such solid wastes, garbage and/or ash.”
“IT IS FURTHER ORDAINED not withstanding the foregoing, that any business, industry or other property within the city limits of the City of Cull-man generating solid wastes, garbage or ash, as defined by the Solid Waste Disposal Act that comes into existence or that operates at a new location after the date of this Ordinance shall, upon opening of same, immediately participate in and subscribe to the City of Cullman Sanitation Department for the collection of such solid wastes, garbage and/or ash.”

We have reviewed the ordinance — the only evidence submitted by the City to establish the prerequisites for a preliminary injunction. The ordinance does not establish that the City will suffer immediate and irreparable injury without the injunction; or that the City is likely to succeed on the merits of the case; or that the hardship imposed upon Blount Recycling by the injunction would not unreasonably outweigh the benefit to the City. Indeed, the ordinance is addressed to individuals “generating solid wastes, garbage or ash,” not entities, such as Blount Recycling, that collect construction and demolition debris. Thus, the City did not establish that Blount Recycling, which does not “generate] solid wastes, garbage or ash,” was in violation of the ordinance. Therefore, because the City did not present evidence to satisfy the prerequisites for a preliminary injunction, the preliminary injunction issued by the trial court must be dissolved, and the cause remanded. First City Nat’l Bank of Oxford v. Whitmore, 339 So.2d 1010 (Ala.1976). See also Beal Bank v. Babakitis, 723 So.2d 687 (Ala.Civ.App.1998).

Case No. 1021766 — Blount Recycling v. The Commission.

Blount Recycling contends that the Commission likewise failed to establish the prerequisites for a preliminary injunction.

As the Court of Civil Appeals recognized in Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala.Civ.App.1983), while Rule 65, Ala. R. Civ. P., “does not explicitly require that oral testimony be presented at a preliminary injunction hearing, some type of evidence which substantiates the pleadings is implicitly required by subsection (a)(2) of the rule.” The Court of Civil Appeals in Bamberg continued, stating: “In order to comply with procedural due process, notice and an opportunity to be heard are necessary under Rule 65(a).” Id.

In this case it appears that the circuit court did not conduct a hearing on the Commission’s petition for a preliminary injunction; therefore, the Commission did not present any evidence and Blount Recycling was not given an opportunity to be heard. The injunction must be dissolved for failure to comply with Rule 65(a), Ala. R. Civ. P., and the cause remanded.

Conclusion

We dissolve the preliminary injunction in case no. 1021683 because the City did not present evidence to satisfy the prerequisites for issuing a preliminary injunction; we dissolve the preliminary injunction in case no. 1021766 because the trial court did not conduct a hearing as required by Rule 65, Ala. R. Civ. P. We pretermit any discussion of the other issues raised on appeal. This holding, however, should not be interpreted as precluding the City and the Commission from requesting the circuit court to again issue an injunction, if they deem one necessary. Based on the foregoing, the preliminary injunctions are dissolved and the causes are remanded for further proceedings consistent with this opinion.

1021683 — PRELIMINARY INJUNCTION DISSOLVED; CASE REMANDED.

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

JOHNSTONE, J., dissents.

1021766 — PRELIMINARY INJUNCTION DISSOLVED; CASE REMANDED.

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


author: YATES, Presiding Judge. THOMPSON, Judge,

text:
    Katherine H. PIERCE v. John Charles PIERCE.
    2010940.
    Court of Civil Appeals of Alabama.
    July 11, 2003.
    Rehearing Denied Sept. 26, 2003.

      Kenneth A. Nixon and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile; and Mary Dixon Torbert, Montgomery, for appellant.
    Charles A. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellee.
   YATES, Presiding Judge.

This is a child-custody-modification case. Katherine H. Pierce (“the mother”) and John Charles Pierce (“the father”) were married on August 10, 1991. Two children, twins, were born of the marriage on June 3, 1998. The family resided in Mobile County. The trial court divorced the parties on July 25, 2000. The divorce judgment incorporated the terms of the parties’ settlement agreement and, among other things, awarded the parties joint legal custody of the children; awarded the mother primary physical custody of the children; and granted the father visitation rights. The judgment also stated, in part:

“3. The parties agree that it is their present intent to reside in Mobile, Alabama. If for any reason, either of the parties decides to relocate their residence outside of Mobile County, Alabama and such relocation is challenged or results in a custody challenge by the other party hereto, the parties agree that such challenge shall be determined by applying the ‘best interests of the children’ standard and not under the ‘material change in circumstances’ or [Ex Parte] McLendon[, 455 So.2d 863 (Ala.1984),] standard.”

In August 2001, the mother moved to Chattanooga, Tennessee, with the children. On August 28, 2001, the father petitioned to modify custody contending, among other things, that:

“4. The Mother has recently advised the Father that she intends to seek and accept a voluntary transfer of her present job, as a staff attorney with the Social Security Administration Office of Hearings and Appeals, in Mobile, Alabama to the Social Security Administration Office of Hearings and Appeals in Chattanooga, Tennessee. She intends to relocate to the State of Tennessee and take the two minor children with her.
“5. The Father challenges the relocation of his children for a number of reasons. He maintains that this relocation is a material change in circumstances, sufficient to justify a modification of custody and that such a move is clearly not in the best interests of his children. The move, 400 miles from Mobile, away from the Father and their extended family, would disrupt and would conceivably end the established, ongoing and frequent relationship the children have with their Father and their extended family; it would disrupt their established day care; it would require a complete reworking of the custodial arrangements between the Father and the Mother and necessarily end the liberal and flexible visitation practices between the parties which is beneficial to the children; it would place undue stress on the relationship between the Father and the Mother which would inure to the detriment of the children; it would place the children in a new and unknown environment, an environment which is hostile to the Father.
“6. The Father avers that relocating the children to Chattanooga, Tennessee is not in the children’s best interest as it will cause irreparable harm to his relationship with them as they will not only be separated by great geographic distance, but as the Mother’s family will not facilitate and will likely discourage contact between the children and their Father as borne out over the past year.
“7. The Mother’s planned move to Chattanooga is not mandated by her employment, as she is an employee in good standing with the Social Security Administration and intends to merely seek a voluntary inter office transfer. This is a voluntary move, motivated solely by the Mother’s own caprice without regard for the best interests of the children or their relationship with their Father and their extended family in Mobile. The Father is an established partner in a local law firm with no such opportunity to move his practice.
“8. Designation of the Father as primary physical custodian, or, alternatively, sole custodian, of the minor children will ensure their continued residence in Mobile, Alabama; will ensure their continued and systematic contacts with the Father, his family, the children’s daytime care givers, and the environment, surroundings,, activities, homes and neighborhoods in which they have lived.
“9. Moreover, upon information and belief, if the Father is granted Primary Physical Custody of the Children, the Mother will not relocate to Chattanooga, Tennessee, but will continue to reside in Mobile, Alabama, thereby ensuring continued contact with both parents and both extended families....
“10. The Father avers that, even if the stipulated ‘best interests’ standard is not applied and the McLendon standard is applied, such an uprooting of the children would constitute a material change in circumstances sufficient to justify a change in custody.”

The father also filed on August 28, 2001, an instanter motion for an order to maintain the status quo as to custody of the children and to restrain the mother from transferring the children from Mobile County.

Following an ore tenus proceeding, the trial court, on March 18, 2002, entered an order granting the father’s petition and awarding him primary physical custody of the children, with liberal visitation to the mother. The trial court did not indicate in its order whether it had applied the “best-interests” standard, see Ex parte Couch, 521 So.2d 987 (Ala.1988), or the more stringent standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

On April, 16, 2002, the mother moved the court to alter, amend, or vacate its judgment pursuant to Rule 59, Ala. R. Civ. P., arguing, among other things, that:

“4. The [mother] avers that during the course of the trial the [father] testified that he was not seeking sole custody of the minor children, rather he was only requesting that the [mother] and the minor children be prevented from moving to Chattanooga, Tennessee.
“5. The [mother] testified that she had accepted a job promotion which would require her to move to Chattanooga, Tennessee. However, she also testified that she would remain in Mobile County with her children if the Court found that it would not be in the best interest of the minor children for her to move.
“6. The [mother] avers that the undisputed testimony from all witnesses, including the [father], reflected that the [mother] was a good mother and that she enjoyed a loving relationship with the minor children....
“7. The [mother] avers that the only change in circumstances since the date of the divorce that was alleged or proven was the fact of the [mother’s] intent to move to Tennessee.
“8. Since the rendition of the Court’s order dated March 18, 2002, the [mother] has resigned her promoted position and has regained her job with the Social Security Office in Mobile, Alabama, and is residing in Mobile, Alabama.
“10. The [mother] avers that the circumstances of the parties is now the same as it was prior to the filing of the Motion to Modify in that the [mother] is living in the same location and working at the same job.”

The mother sought an order from the trial court vacating its order of March 18, 2002, and reinstating the custodial provisions contained in the original divorce judgment. The trial court, after a hearing, denied the mother’s postjudgment motion; the mother appeals.

The mother argues, among other things, that the trial court abused its discretion in denying her postjudgment motion, because, she says, there existed no change in circumstances to warrant a custody modification because she had abandoned her plans to move to Chattanooga and she was no longer relocating from Mobile. “Our review of the denial of a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate a judgment is ‘ “limited to whether the trial court abused its discretion.” ’ ” Chapman v. Surles, 719 So.2d 846, 846 (Ala.Civ.App.1998) (citations omitted).

Both the mother and the father are attorneys. At the time the father filed his petition, the mother was employed by the Social Security Administration’s Office of Hearings and Appeals in Mobile. The father was practicing law as a partner in a local law firm. In July 2001, the mother learned of an opening in the Chattanooga, Tennessee, Office of Hearings and Appeals and decided to move to Chattanooga with the children and to apply for the job. The open position would have been a promotion for the mother. The mother notified the father at the end of July 2001 of her intentions to move to Chattanooga with the children. The mother moved to Chattanooga with the children on August 27, 2001; however, she returned to Mobile on September 10, 2001, after the father had filed his petition. The mother was notified on December 27, 2001, that she had received the promotion; she officially trans: ferred to the Chattanooga office on February 11, 2002.

The father testified at the hearing as follows:

“Q. What are you asking the judge to do?
“A. To let me play a part in my children’s Uves by keeping them here. My ideal relationship with my children would best be fostered by maintaining what we have now. Status quo is a good situation. That’s what’s in the best interest of these children....
“Q. You’re not trying to take the children away from [the mother]?
“A. Absolutely not.
“Q. You’re asking the Court to allow you to have the children, or allow her to stay here and have the children; is that correct?
“A. Yes sir. That is absolutely correct.”

The mother testified at the hearing that she had returned to Mobile after the father had filed his petition. She testified that, at the time of the hearing, she was renting a house in Mobile and that if custody of the children was awarded to the father she would stay in Mobile. As mentioned above, the mother alleged in her postjudgment motion that, since the trial court had entered its order changing custody of the children to the father, she had resigned her promoted position in Chattanooga and had regained her former position with the Social Security Administration in Mobile. She reiterated this assertion in her brief on appeal. The father has not disputed this assertion. See State v. Bragg, 86 Ala.App. 430, 57 So.2d 556 (1951) (accepting as true uncontro-verted factual statement in appellant’s brief).

After reviewing the record in this case, we conclude that because any possible justification for modification no longer existed, the trial court abused its discretion in denying the mother’s, Rule 59(e) motion and in failing to vacate its judgment modifying custody. Therefore, we reverse the trial court’s judgment denying the mother’s Rule 59 motion, and we remand this case for the trial court to enter an order consistent with this opinion. Because of our resolution of this issue, we do not address the mother’s other arguments.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.

PITTMAN, J., recuses himself.

THOMPSON, Judge,

concurring in the result.

Because I would have reversed the trial court on other grounds, I concur in the result of the main opinion.

Alabama law is clear that when there has been a prior custody determination, the parent seeking a change in custody must meet the strict standard set out in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). That standard requires that a change in custody must materially promote the best interest and general welfare of the child and that the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000); see also Ex parte McLendon. It is the child’s best interest that is sought to be protected by the application of the McLendon standard in a custody determination; that standard is not for the benefit or the convenience of the child’s parents. A.L. v. S.J., 827 So.2d 828 (Ala.Civ.App.2002). This court has held that parties are not at liberty to forgo the protection of the law by either agreement or contract where a principle of public policy is violated. Kennedy v. Cochran, 475 So.2d 872 (Ala.Civ.App.1985). The McLendon standard is based on strong policy considerations; among those considerations is preventing the trauma of uprooting a child from a familiar home. Ex parte Couch, 521 So.2d 987 (Ala.1988).

Because the McLendon standard serves the interest of the child and not the parents, the parties were not at liberty to contract out of the protection afforded the child under Ex parte McLendon. Therefore, the proper standard of proof in this case is the McLendon standard. In my opinion, the father did not meet the “heavy burden of proof’ set forth in Ex parte McLendon, supra. A.L. v. S.J., 827 So.2d 828, 834 (Ala.Civ.App.2002).

      . The mother was raised in a suburb of Chattanooga and her parents, as well as other extended family, continue to reside there. The record indicates that the mother and the children enjoy an excellent relationship with the maternal grandparents and that the children had spent extended periods of time with the maternal grandparents.


author: HARWOOD, Justice. JOHNSTONE, Justice

text:
    Ex parte John Charles PIERCE. (In re Katherine H. Pierce v. John Charles Pierce).
    1030054.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    Charles H. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for petitioner.
    Kenneth A. Nixon and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile; and Mary Dixon Torbert, Montgomery, for respondent.
   HARWOOD, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, SEE, BROWN, WOODALL, and STUART, JJ„ concur.

LYONS and JOHNSTONE, JJ„ dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for the writ of certiorari in this case. The Court of Civil Appeals apparently has misapplied Rule 59, Ala. R. Civ. P., by holding that the trial court should have granted the mother’s Rule 59 motion and should have vacated the custody judgment on the basis of the mother’s post-judgment allegations of her postjudgment changes in her own living arrangements, not on the basis of the facts as they existed at the time of trial. Pierce v. Pierce, 884 So.2d 855 (Ala.Civ.App.2003).

A case must be decided on the basis of the facts as they exist at the time of the trial. While Rule 59 might be properly applied to accommodate newly discovered evidence of the facts as they existed at the time of trial, I respectfully submit that Rule 59 is not intended to accommodate new facts newly created by the moving party after trial. Moreover, even these newly created facts apparently were not established as such, as the trial court (according to the certiorari petition) did not reopen the evidence for the introduction of more evidence, and the Court of Civil Appeals has not instructed the trial court to reopen the evidence but instead has ordered the trial court to vacate its custody order apparently on no more basis than the mere allegations of the mother’s Rule 59 motion. Accordingly, I respectfully submit that we should grant this petition and examine the record.