author: MADDOX, Retired Justice.

text:
    JIM WALTER HOMES, INC., et al. v. Brian SPRAGGINS and Jennifer Spraggins.
    1011659.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      George W. Walker III and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellants.
    Jere L. Beasley, Andy D. Birehfield, Jr., and Melissa A. Prickett of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellees.
   MADDOX, Retired Justice.

The primary issue presented on appeal is whether the trial court properly denied the defendants’ motion to compel arbitration on the ground that the plaintiffs presented substantial evidence indicating that they had been fraudulently induced into signing the arbitration agreement.

The facts are largely undisputed. On September 30, 1997, Brian Spraggins and Jennifer Spraggins entered into a contract for the purchase of a house from Jim Walter Homes, Inc. (“JWH”), to be constructed on property the Spragginses owned. A.L. Richardson, an agent and employee of JWH, conducted most of the transaction on behalf of JWH. The contract of purchase includes a paragraph that provides, as follows:

“9. This instrument and the other instruments signed in connection with this transaction (including a Limited Warranty) contain the price and all the terms and conditions agreed upon by Buyer and Seller, and no statement, representation or promise not set forth in this contract, or any of the other said instruments, has been made to induce either party to enter into this transaction. IN CONNECTION WITH THE FOREGOING, BUYER ACKNOWLEDGES HAVING READ, UNDERSTOOD AND ACCEPTED THE ARBITRATION AGREEMENT SET FORTH IN EXHIBIT D ATTACHED HERETO AND INCORPORATED BY THIS REFERENCE. BS JS (BUYER’S INITIALS).”

(Capitalization in original.)

The arbitration agreement, which was attached as exhibit D to the purchase contract and incorporated into the contract, reads, in pertinent part, as follows:

“The parties agree that, at the election of either party, any controversy or claim arising out of or relating to this contract, shall be settled by binding arbitration in accordance with the Rules of the American Arbitration Association [AAA], and judgment upon the award rendered by the arbitrator(s) may be entered in any Court having jurisdiction thereof. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties herein agree to resolve all disputes by such arbitration at the AAA office with the closest geographic proximity to the house location stated herein. The cost of such arbitration shall be divided equally among the parties to the arbitration. Each party shall bear the cost of their own expenses and attorney’s fees. The number of arbitrator(s) shall be three.
“Buyer acknowledges that Seller is a Florida corporation with its principal place of business in the State of Florida. The parties acknowledge that some or all of the materials, fixtures, and equipment, as well as the source of financing contemplated by this contract, will be purchased, received or have their origin from sources outside the state when this contract is entered into.”

The Spragginses, in affidavits they filed in opposition to the motion to compel arbitration, do not deny that they signed the contract and the arbitration agreement. Instead, they contend that A.L. Richardson, JWH’s agent, misrepresented to them the effect of the arbitration agreement. In identical affidavits, both Brian Spraggins and Jennifer Spraggins stated:

“My name is Brian [Jennifer] Sprag-gins. I am over the age of nineteen (19) years. I reside in Lee County, Alabama. This affidavit is based on my personal knowledge.
“1. On or about September 30, 1997 I purchased a house from Jim Walter Homes, Inc.
“2. A.L. Richardson handled the transaction. He had me and my spouse sign several documents.
“3. One document we were told to sign was an arbitration agreement.
“4. A.L. Richardson told us that arbitration was where if we had a dispute with Jim Walter Homes then we would discuss it with the Construction Manager. If the Construction Manager cannot resolve the problem, then we would go to the district level and then to the regional level. If the problem cannot be resolved by that time, then we would go to court. However, A.L. Richardson assured us that the problem would be resolved well before we reached the regional level of Jim Walter Homes.
“5. As A.L. Richardson explained ‘arbitration,’ we would still be able to go [to] court with a dispute and would still be able to pre[s]ent our dispute to a jury, if we could not resolve the problem with Jim Walter Homes.
“6. A.L. Richardson told us that the arbitration agreement was a standard form that all Jim Walter Homes customers must sign.”

The Spragginses claim that shortly after their house was constructed they began to experience problems with the house, including exterior siding that buckled and cracked, a cracked foundation, separation of the porch from the house, electrical problems, cracks and gaps above the windows and doors, and other problems. They sued JWH and Walter Industries, Inc., the parent company of JWH; Jerry Tinch, whom they allege is an agent of JWH; A.L. Richardson; and fictitiously named defendants, A, B, C, and D.

In their complaint, the Spragginses claimed that the defendants represented to them that they would be purchasing a house that would be built with the same quality as JWH’s model homes, that would be built with the same quality as represented in JWH’s brochure, and that would be built according to local customs, practices, and prevailing building codes. They also asserted claims of fraudulent concealment, breach of contract, breach of express and implied warranties, and breach of an implied warranty of habitability.

After allowing the Spragginses time to conduct discovery on the issue of the enforceability of the arbitration agreement, the trial court denied the defendants’ motion to compel arbitration, and the defendants filed this appeal. See Rule 4(d), Ala. R.App. P.

I.

The standard of review of a trial court’s denial of a motion to compel arbitration is de novo, see First American Title Insurance Corp. v. Silvernell, 744 So.2d 883, 886 (Ala.1999), and Green Tree Financial Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999).

II.

The parties disagree on the question whether the Spragginses presented substantial evidence indicating that they were fraudulently induced into signing the arbitration agreement.

The defendants, in their brief to this Court, contend that “[t]his Court has previously addressed and rejected the identical fraud in the inducement challenge raised by the Spraggins[es] in this case,” citing in support of its contention Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777 (Ala.2000). The defendants argue:

“As [Early] recognizes, a claim of fraudulent inducement based on alleged statements made by a salesperson that arbitration means you still get to present your claim to a court is fatally flawed, as a matter of law, because a party cannot reasonably rely on such a statement when the written arbitration agreement signed by them clearly contradicts any such alleged statement.”

The Spragginses, on the other hand, argue that Early is clearly distinguishable from this case because the plaintiffs in Early “failed to show that they could not read or understand the arbitration agreement.” The Spragginses assert that “[i]n the instant case, [the Spragginses] had limited educations and told Defendant Richardson that they could not understand the arbitration agreement.” In support of this argument, they cite the affidavits they filed in opposition to the motion to compel arbitration. However, because their educational levels are not mentioned in their affidavits, they are apparently relying on a statement made by their counsel during the oral argument on the motion to compel arbitration.

Even assuming, as counsel stated, that neither of the Spragginses had completed high school, that fact alone would not permit them reasonably to rely on the statements allegedly made by A.L. Richardson, when the terms of the arbitration agreement they signed and initialed are to the contrary. Especially significant is the fact that the purchase contract states, in pertinent part, in capitalized letters, as follows: “IN CONNECTION WITH THE FOREGOING, BUYER ACKNOWLEDGES HAVING READ, UNDERSTOOD AND ACCEPTED THE ARBITRATION AGREEMENT SET FORTH IN EXHIBIT D ATTACHED HERETO AND INCORPORATED BY THIS REFERENCE. BS JS (BUYER’S INITIALS).” (Emphasis added.)

In Early, this Court stated:

“The gravamen of the Earlys’ allegations is that Harold Allen’s salesman did not fully disclose and adequately explain the separate arbitration agreement. However, Harold Allen had no duty to disclose or explain the arbitration agreement. See Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999); Patrick Home Center, Inc. v. Karr, 730 So.2d 1171, 1174 (Ala.1999); Green Tree Agency, Inc. v. White, 719 So.2d 1179, 1180 (Ala.1998); see also First Family Fin. Servs., Inc. v. Rogers, 736 So.2d 553, 558 (Ala.1999) (‘[Wlhen a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract, including an arbitration provision, and will be bound thereby.’). Moreover, the separate arbitration agreement clearly discloses both that it is an arbitration agreement and the terms of that agreement. The Earlys presented no evidence indicating that they cannot read, that the salesman prevented them from reading the documents they signed, or that they could not have understood the arbitration agreement had they taken the time to read it. See Green Tree Fin. Corp. v. Vintson, supra. Thus, based on the evidence in the record, one must conclude that the Earlys did not reasonably rely on the salesman’s alleged representation about the meaning of the arbitration agreement. To conclude otherwise would allow the Earlys to shut their eyes to the terms of the documents they voluntarily signed and to blindly rely on the salesman’s alleged representation. No such doctrine is supported by Alabama’s general contract law, and such a doctrine would, therefore, be contrary to the strong federal policy favoring arbitration. See Quality Truck & Auto Sales, Inc. [v. Yassine], 730 So.2d [1164] at 1168 [(Ala.1999)]. Interpreting the Earlys’ allegations as stating a claim of fraudulent Inducement of the arbitration agreement, we conclude that the Earlys did not present substantial evidence in support of that claim, and that the trial court therefore erred in vacating on that ground its order compelling arbitration.
“The Earlys failed to present substantial evidence of fraudulent inducement of the arbitration agreement, and the arbitration provision in Southern Energy’s written warranty is enforceable. Accordingly, we reverse the trial court’s order denying arbitration and remand the case for that court to enter an order consistent with this opinion.”

776 So.2d at 784-86 (footnote omitted).

The Spragginses argue that the “[defendants erroneously argue that the facts of the instant case directly correspond [to] the facts of [Early].” (Spragginses’ Brief, p. 3.) They further state that Early is clearly distinguishable from this case in that in Early “the plaintiffs failed to show that they could not read or understand the arbitration agreement.” They then state that “[i]n the instant case, [the Spraggins-es] had limited educations and told Defendant Richardson that they could not understand the arbitration agreement,” and cite the affidavits. They further contend that “[defendant Richardson then undertook to explain the arbitration provision and, in doing so, intentionally misled [the Spragginses] as to the legal effect of the document they were signing,” and that the “[defendants deliberately suppressed the fact that the Spraggins[es] were forfeiting their constitutional right to a jury trial.”

In a reply brief to this Court, JWH and the other defendants argue that there is no evidence in the record indicating that the Spragginses “had limited educations and [that they] told Defendant Richardson that they could not understand the arbitration agreement.”

Although the Spragginses, in their brief to this Court, state that the issue on appeal is “[w]hether the trial court’s decision to deny the Defendants’ Motion to Compel Arbitration is due to be affirmed when [the court] held that substantial evidence had been presented that the [Spragginses] had been fraudulently induced to sign the arbitration agreement,” they nevertheless make several other arguments in their brief: 1) that the transaction at issue does not substantially affect interstate commerce; 2) that the defendants had “unclean hands;” 3) that the arbitration agreement is unconscionable; 4) that the Spragginses did not knowingly, willingly, or voluntarily waive their right to a trial by jury; and 5) that defendant Walter Industries is not entitled to enforce the arbitration agreement because it was not a signatory to the agreement.

JWH and the other defendants, in their initial brief to this Court, stated the issue on appeal as follows:

'“Whether the trial court erred in refusing to compel arbitration on the grounds that the Spraggins[es] were fraudulently induced to enter into the arbitration agreement, when the arbitration agreement signed by the Sprag-gins[es] clearly contradicts the alleged fraudulent statements made by the JWH salesperson.”

Although the Spragginses, in their brief on appeal, agree that this is the issue, as we have pointed out above they nevertheless contend that the trial court’s denial of the motion to compel arbitration could have been based on one of several other grounds.

Although the trial court did not specify in its order its reasons for denying the motion to compel arbitration, a reading of the transcript of the oral argument on the motion to compel arbitration suggests that the trial court denied the motion to compel based on the Spragginses’ affidavits, which, if believed, sufficiently proved that they were fraudulently induced to sign the arbitration agreement. Because the parties have argued additional issues, we will consider each of those issues; however, we are of the opinion, based on the record before us, that the trial court erred in denying the motion to compel arbitration. It is clear from the record that JWH and the other defendants presented substantial evidence indicating that the transaction at issue substantially affected interstate commerce. Specifically, the affidavit of Jim Heinzen, a property manager for JWH, states that the “building” contract was prepared and approved at JWH’s office in Tampa, Florida. Heinzen’s affidavit also states that various materials were shipped from Florida for use in the construction of the Spragginses’ house and that the laborers who constructed the house were paid from JWH’s office in Tampa. Finally, Heinzen’s affidavit states that JWH provided financing for the Spragginses’ purchase of the house from its Florida office and that the Spragginses send their payments for the house to the JWH office in Tampa. This combination of financing and material originating from outside the state provides the requisite substantial effect on interstate commerce. See, e.g., Ballard Services, Inc. v. Conner, 807 So.2d 519 (Ala.2001); Benchmark Homes, Inc. v. Aleman, 786 So.2d 1101 (Ala.2000)(plaintiff admitted that the construction of a house the materials for which were shipped directly to the site had a substantial effect on interstate commerce). Compare Ex parte Kampis, 826 So.2d 819 (Ala.2002)(the purchase of budding materials, which had originated from outside the state, from local Alabama stores was not sufficient to show a substantial effect on interstate commerce).

The Spragginses’ argument that JWH and the other defendants were guilty of “unclean hands” seems to be an attempt to recast their argument that JWH and the other defendants were guilty of fraud in the inducement. We cannot accept that argument for the same reasons we could not accept the Spragginses’ argument on their fraud-in-the-inducement claim. See also Sterling Oil of Oklahoma Inc. v. Pack, 291 Ala. 727, 287 So.2d 847, 864 (1973)(where a contract could not be invalidated on the basis of fraud in the inducement because it was ratified as a matter of law, the doctrine of “unclean hands” was not operative).

On the issue of unconscionability, we have examined the record and we fail to find sufficient evidence to satisfy the four-part test set out in Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala.1998), or, in this Court’s most recent case of Leonard v. Terminix International Co., 854 So.2d 529 (Ala.2002), in which this Court held that an arbitration clause that precluded class-action treatment of a dispute was unconscionable and therefore unenforceable. See also Mitchell Nissan, Inc. v. Foster, 775 So.2d 138, 141 (Ala.2000)(recognizing that the plaintiff must present evidence showing “that the buyer could not have obtained the desired product or service, either from this seller or from some other seller, without consenting to the arbitration provision”).

We also cannot accept the Sprag-ginses’ argument that Walter Industries cannot compel arbitration because it is a nonsignatory to the arbitration agreement. In their complaint, the Spragginses allege that Walter Industries is the “alter ego” of JWH. Cf. Ex parte Gray, 686 So.2d 250 (Ala.1996), where this Court recognized that a party who had entered into an arbitration agreement with a car dealership could not avoid arbitration by suing an agent of the dealership who was not a signatory to the agreement. Federal courts that have addressed the issue have recognized that the alter ego of a signatory to an arbitration agreement is entitled to compel its enforcement. See Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001); and Fisser v. International Bank, 282 F.2d 231, 234 (2d Cir.1960).

III.

We conclude that this case is controlled by the principles of law set out in the Early case. After holding that the Earlys, who signed an arbitration agreement, could not have reasonably relied on the salesperson’s oral representations, this Court said:

“Our conclusion reaffirms the importance of written contracts and the duty on the part of those entering written contracts to act reasonably by reading the terms of the documents they sign. See generally Foremost Ins. Co. v. Parham, 693 So.2d 409, 437-39 (Ala.1997) (See, J., concurring specially); see also Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041, 1048-49 (on application for rehearing) (Houston, J., concurring specially) (discussing the ‘ “societal need to uphold the integrity and certainty of written contracts’” and ‘“‘the duty of every contracting party to learn and know its contents before he signs [a writing]”” (quoting Morris G. Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court), 23 Akron L.Rev. 1 (1989))).”

776 So.2d at 784 n. 7. We hold, therefore, that the Spragginses’ claim of fraud in the inducement fails as a matter of law, based on the facts in this case, on the ground that the Spragginses could not have reasonably relied on the alleged misrepresentation of A.L. Richardson. Early, supra. We also cannot accept the Spragginses’ arguments on the other issues. Consequently, the judgment of the trial court is reversed and the cause remanded.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

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

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

      . A.L. Richardson failed to respond to the complaint; for purposes of this appeal he is not included as one of the defendants.

      . In Early, this Court did state:
      "The Earlys presented no evidence indicating that they cannot read, that the salesman prevented them from reading the documents they signed, or that they could not have understood the arbitration agreement had they taken the time to read it. See Green Tree Fin. Corp. v. Vintson, [753 So.2d 497 (Ala.1999)]. Thus, based on the evidence in the record, one must conclude that the Earlys did not reasonably rely on the salesman's alleged representation about the meaning of the arbitration agreement. To conclude otherwise would allow the Earlys to shut their eyes to the terms of the documents they voluntarily signed and to blindly rely on the salesman’s alleged representation.”
      776 So.2d at 784 (footnote omitted).

      . In the statement-of-facts section of their brief to this Court, the Spragginses apparently rely on statements made by their counsel during oral arguments before the trial court to the effect that "[o]ur clients have a ninth grade and eleventh grade education,” and that they "were presented with the arbitration agreement, read it, didn't understand it, so they asked questions,” citing to the record of the oral argument on the motion to compel arbitration, at p. 13. It is clear that the references to the Spragginses' level of education appearing in the record were made by counsel during oral arguments on the motion to compel arbitration before the trial court, and this Court has held that statements of counsel do not constitute admissible evidence. American Nat'l Bank & Trust Co. v. Long, 281 Ala. 654, 207 So.2d 129 (1968).

      . See note 3 above.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Christina L. McDONALD v. H & S HOMES, L.L.C., and Russ D’Olympio.
    1011805.
    Supreme Court of Alabama.
    Jan. 10, 2003.

      Michael S. Harper of Harper & Smith, P.C., Tallassee; and Frank H. Hawthorne, Jr., of Hawthorne & Hawthorne, L.L.C., Montgomery, for appellant.
    James E. Williams and Flynn Mozingo of Melton, Espy & Williams, P.C., Montgomery; and Michael C. Daniel of Forston, Bentley & Griffin, P.A., Athens, Georgia, for appellees.
   STUART, Justice.

H & S Homes, L.L.C., whose business is selling manufactured homes, and Russ D’Olympio, the general manager of H & S, are defendants in an action filed by Christina L. McDonald in the Montgomery Circuit Court. McDonald appeals from the trial court’s May 9, 2002, order setting aside the selection of an arbitrator. We reverse and remand.

Facts and Background

On January 28, 2000, McDonald contracted to purchase a manufactured home from H & S. At the time of this purchase, McDonald signed a “retail installment contract and security agreement” (“the installment contract”). The installment contract named GreenPoint Credit, L.L.C., as the assignee. The installment contract contained the following arbitration provision:

“ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL:
“a. Dispute Resolution. Any controversy or claim between or among you and me or our assignees arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below....
“b. Arbitration. Since this Contract touches and concerns interstate commerce, an arbitration under this Contract shall be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of the American Arbitration Association (‘AAA’) also shall apply.... ”

Simultaneously with the signing of the installment contract, McDonald executed a purchase contract with H & S; the purchase contract referenced and incorporated a separate “stand-alone” arbitration agreement. That arbitration agreement provided, in part:

“All disputes, claims, or controversies arising from or relating to the Contract or the relationships which result from the Contract, or the validity of this arbitration clause or the entire Contract, shall be resolved by binding arbitration by one arbitrator selected by Assignee with consent of Buyer(s)....
“The parties agree and understand that all disputes arising under case law, statutory law, and all other laws, including, but not limited to, all contract, tort and property disputes, will be subject to binding arbitration [in] accord with this Contract. The parties agree and understand that the arbitrator shall have all powers provided by the law and the Contract.”

D’Olympio, on behalf of H & S, and McDonald signed this arbitration agreement; the agreement was incorporated by reference into McDonald’s purchase contract with H & S.

On February 26, 2001, McDonald filed this action against H & S and D’Olympio. In her complaint, McDonald alleged fraud, suppression, misrepresentation, deceit, negligence, wantonness, and conversion arising out of her purchase transaction.

H & S and D’Olympio filed motions to compel arbitration. Those motions were supported with briefs and evidentiary submissions, which established that McDonald signed the arbitration agreement and the installment contract containing an arbitration provision, and that her purchase of the manufactured home substantially affected interstate commerce. The trial court granted H & S and D’Olympio’s motions to compel arbitration, ordering McDonald to arbitrate her claims.

On July 26, 2001, McDonald filed with the trial court a motion for clarification. In her motion, McDonald pointed out that she had signed two arbitration provisions in connection with her purchase of the mobile home and that the parties could not agree which provision controlled this dispute. McDonald asked the trial court for guidance as to which arbitration provision governed.

On October 3, 2001, the trial court issued its order finding that the stand-alone arbitration agreement and the installment contract containing an arbitration provision had been executed on the same date, were part of a continuing transaction, and should be read and construed “as if in one form.” The trial court concluded its order by stating, “[I]t is hereby ORDERED that [McDonald] shall comply with the provisions contained in the Retail Installment Contract.” Neither McDonald, H & S, nor D’Olympio appealed from this order.

Sometime after that order was entered, McDonald’s counsel contacted the attorney for GreenPoint Credit, the assignee of the installment contract. Without providing notice to H & S or D’Olympio, the attorneys for McDonald and GreenPoint Credit mutually agreed that attorney Kenneth Mendelsohn would be the arbitrator for this dispute. Upon receiving notice that Mendelsohn had been appointed as arbitrator, H & S and D’Olympio objected, asserting that he had not been appointed pursuant to the procedures specified in the installment contract. On April 30, 2002, H & S moved the trial court to set aside as invalid McDonald and GreenPoint’s selection of Mendelsohn as the arbitrator. On May 9, 2002, the trial court entered an order reading, in part, as follows:

“1. That the parties, Christina McDonald and H & S Homes, L.L.C. shall select an arbitrator in accordance with the Rules of [the] American Arbitration Association.
“2. That the selection of an arbitrator by the assignee is due to be and is hereby set aside.”

McDonald filed a motion pursuant to Rule 59(e), Ala. R. Civ. P., asking the trial court to alter, amend, or vacate its May 9, 2002, order. The trial court denied this motion.

McDonald appeals from the trial court’s May 9, 2002, order setting aside the selection of Kenneth Mendelsohn as the arbitrator. We reverse and remand.

Standard of Review

“This Court’s review of an order granting a motion to compel arbitration is de novo.” BankAmerica Housing Servs. v. Lee, 833 So.2d 609, 617 (Ala.2002). The order appealed from in this case is not an order compelling arbitration; it is, however, an order interpreting an arbitration provision. “When a trial court compels arbitration, it must do so in a manner consistent with the terms of the arbitration provision.” BankAmerica Housing Servs., 833 So.2d at 618.

We consider the issue on appeal to be whether the trial court has properly interpreted and applied the parties’ arbitration agreements. Arbitration agreements are governed by general principles of contract law. Oakwood Acceptance Corp. v. Hobbs, 789 So.2d 847 (Ala.2001). The interpretation of an unambiguous contract provision is a question of law, which we review de novo. See, e.g., Sharer v. Creative Leasing, Inc., 612 So.2d 1191 (Ala.1993). For these reasons, we conclude that the appropriate standard of review in this case is de novo.

Analysis

McDonald asserts that the trial court’s order of May 9, 2002, setting aside the appointment of Mendelsohn as the arbitrator must be reversed. McDonald asserts that Mendelsohn was appointed in a manner fully consistent with the trial court’s October 3, 2001, order, in which the trial court ordered that the arbitration agreement and the arbitration provision in the installment contract be read and construed as if in one agreement and that McDonald comply with the provisions of the installment contract.

First, McDonald asserts that because neither party appealed the trial court’s order of October 3, 2001, ordering that the two arbitration provisions be read as if in one agreement, that order became the “law of the case”; therefore, she argues, the terms of the stand-alone arbitration agreement may not be ignored or disregarded. McDonald also cites Rule R-13 of the Commercial Rules of the American Arbitration Association (the “AAA”), which provides, in pertinent part: “If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner ....” McDonald argues that the parties to this dispute, H & S and McDonald, have provided another method of appointment in their arbitration agreements, i.e., that McDonald and the assignee of H & S, GreenPoint Credit, would mutually select the arbitrator. Because Mendelsohn was selected in this manner, McDonald asserts that the trial court’s order setting aside Mendelsohn’s appointment must be reversed.

H & S and D’Olympio respond that the trial court’s order setting aside Mendel-sohn’s appointment must be affirmed because, they argue, the trial court found that McDonald had violated its earlier order and the May 9, 2002, order was a proper exercise of the trial court’s inherent authority to protect the integrity of, and ensure compliance with, its earlier order. H & S and D’Olympio argue that by ordering McDonald to comply with the provisions of the installment contract, the trial court intended McDonald to abide by only the Commercial Rules of the AAA, to the exclusion of the provisions set forth in the stand-alone arbitration agreement for the appointment of an arbitrator. H & S and D’Olympio argue that, because McDonald defied the trial court’s order, the trial court properly exercised its inherent authority to set aside McDonald’s offending act.

First, we note that the trial court’s order of October 3, 2001, specifically found that both the stand-alone arbitration agreement and the arbitration provision in the installment contract should be read together and should be construed as if combined in one document. If those agreements are read together as if contained in one “consolidated arbitration agreement,” the resulting agreement between H & S and McDonald would read, in part:

“Any controversy or claim between or among you and me or our assignees arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, ... shall be determined by arbitration ... as provided below.
“... The Commercial Rules of the AAA also shall apply.
“All disputes, claims, or controversies arising from or relating to the Contract or the relationships which result from the Contract, or the validity of this arbitration clause or the entire Contract shall be resolved by binding arbitration by one arbitrator selected by Assignee with consent of Buyer(s).”

Second, we note that H & S and McDonald are parties to all of the agreements at issue in this dispute; those agreements specifically identify GreenPoint Credit as the assignee.

Next, we note that Rule R-13 of the Commercial Rules of the AAA states, in part:

“R-13. Appointment From Panel
“If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner ....”

The procedure set forth in the Commercial Rules of the AAA for selecting an arbitrator is applicable only when the parties have not appointed an arbitrator and when the parties have not provided another method for the appointment of an arbitrator.

In this case, the parties have established a method for appointing an arbitrator. At the time McDonald purchased the manufactured home from H & S, H & S and McDonald agreed as follows:

“All disputes, claims, or controversies arising from or relating to the Contract or the relationships which result from the Contract, or the validity of this arbitration clause or the entire Contract, shall be resolved by binding arbitration by one arbitrator selected by Assignee with consent of Buyer(s) .... ”

Because the parties to this dispute have provided a method for appointing an arbitrator and because Mendelsohn was appointed pursuant to that agreed-upon method, we find that McDonald has complied with the trial court’s October 3, 2001, order. McDonald has read and construed the stand-alone arbitration agreement and the arbitration provision in the installment contract as if contained in one document, and McDonald has followed the procedures set forth in the Commercial Rules of the AAA.

“A trial court’s order compelling arbitration that changes the terms of the arbitration provision will be reversed when
“ ‘it appears that the trial court, although it ordered the parties to arbitrate, failed to compel arbitration in a manner consistent with the terms of [the] arbitration provision.’ ”

BankAmerica Housing Servs., 833 So.2d at 618, quoting Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845, 849 (Ala.2001). See also Ex parte Cappaert Manufactured Homes, 822 So.2d 385, 387 (Ala.2001) (“[section] 5 [of the Federal Arbitration Act] mandates that the method set forth in the arbitration agreement be followed”).

Because the trial court’s May 9, 2002, order directs the parties to select an arbitrator in a manner that is inconsistent with the terms of the parties’ agreement to arbitrate, we reverse that order. We remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In their brief to this Court, H & S and D'Olympio refer to this arbitration agreement as the "Lender Arbitration Agreement.” However, the document is entitled simply “Arbitration Agreement”; the term "lender” is not found anywhere in that agreement.

      . H & S and D’Olympio assert that the trial court’s May 9, 2002, order was, in essence, a finding of civil contempt against McDonald for violating the trial court’s earlier instruction to comply with the provisions of the installment contract. H & S and D’Olympio argue that, therefore, the applicable standard of review is whether the trial court abused its discretion. Because we do not agree that the trial court found McDonald in civil contempt in its May 9, 2002, order, we reject this argument.


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

text:
    DAIMLERCHRYSLER MOTORS CORPORATION v. SUSAN SCHEIN CHRYSLER, PLYMOUTH, DODGE, INC. Thomas Acheson v. Susan Schein Chrysler, Plymouth, Dodge, Inc.
    1011496 and 1011497.
    Supreme Court of Alabama.
    Jan. 10, 2003.

      Jere F. White, Jr., Ivan B. Cooper, and W, Lawrence Deas of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant DaimlerChrysler Motors Corporation.
    Clark A. Cooper of Christian & Small, L.L.P., Birmingham, for appellant Thomas Acheson.
    Connie Ray Stockham and John R. Wallis of Stockham & Stockham, P.C., Birmingham, for appellee.
   MOORE, Chief Justice.

DaimlerChrysler Motors Corporation (“DaimlerChrysler”) and Thomas Acheson each appeal from a trial court’s order awarding attorney fees to the plaintiff, Susan Schein Chrysler, Plymouth, Dodge, Inc. (“Schein”), under § 8-20-11, Ala.Code 1975, a part of the Motor Vehicle Franchise Act, § 8-20-1 et seq., Ala.Code 1975 (“the Act”). The appeals were consolidated.

In October 2000, DaimlerChrysler gave written notice to Schein, “pursuant to Alabama Code § 8-20-4,” informing Schein of its intent to establish a Dodge automobile dealership in Hoover, Alabama; Acheson was the franchisee. Schein objected to this proposal because the new dealership would have been within Schein’s “relevant market area,” as that term is defined in § 8-20-8. Schein sued DaimlerChrysler and Acheson “under the provisions of The Motor Vehicle Franchise Act, Alabama Code, Section 8-20-1 through 8-20-12,” on December 4, 2000, alleging unfair and deceptive trade practice in violation of § 8-20-4(3)i., Ala.Code 1975. Schein sought preliminary and permanent injunctions enjoining DaimlerChrysler “from appointing an additional dealer or awarding an additional franchise as hereinabove stated” and enjoining Acheson from opening the proposed Hoover dealership. Schein also requested attorney fees and costs pursuant to § 8-20-11.

On December 8, 2000, Acheson filed a motion to dismiss. After more than a year, during which substantial discovery was conducted, DaimlerChrysler withdrew its notice of intent to establish an automobile dealership with Acheson as the franchisee, because Acheson had lost his option on the property on which DaimlerChrysler had intended to establish the franchise. Accordingly, on January 9, 2002, Daimler-Chrysler filed a motion to dismiss “for lack of justiciable controversy.”

On January 22, 2002, the trial court dismissed all claims “with exceptions of claims for attorney fees,” and set a hearing for March 15, 2002, on those claims. The trial court gave no express reason for dismissing the other claims. After the hearing, the trial court, on March 18, 2002, entered an order, holding as follows:

“The Court finds that the Plaintiff has made excellent arguments for granting of attorney fees against both Defendants. The Court finds the Plaintiff would be entitled to a reasonable attorney fee under § 8-20-11 of Alabama Code of 1975 together with the costs of the suit. As such the Court is setting the fees of the Plaintiffs attorneys at $60,973.25 plus costs $11,828.41 against DaimlerChrysler Motors Corporation and Thomas Acheson.”

The trial court made no findings of fact or liability under the Act.

Section 8-20-11, Ala.Code 1975, provides as follows:

“Notwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver, and notwithstanding any other legal remedies available, any person who is injured in his business or property by a violation of this chapter by the commission of any unfair and deceptive trade practices, or because he refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of this chapter, may bring a civil action in a court of competent jurisdiction in this state to enjoin further violations, to recover the damages sustained by him together with the costs of the suit, including a reasonable attorney’s fee.”

(Emphasis added.) Schein alleged in its complaint that “[t]he appointment of an additional dealer or the awarding of an additional franchise will cause permanent and irreparable damage to Schein. Said damage is imminent if the additional dealer is appointed or the additional franchise is awarded as proposed.” Thus, Schein sought injunctive relief to prevent alleged future harm to it caused by the presence of another franchise in its relevant market area.

The harm for which Schein sought relief, however, never materialized. Daimler-Chrysler withdrew its letter of intent and represented to the trial court that it “no longer seeks to establish a Dodge dealership on the noticed property,” the property on which Acheson’s option had lapsed. According to Schein’s complaint, its alleged injury was conditioned upon “[t]he appointment of an additional dealer or the awarding of an additional franchise.” Because DaimlerChrysler withdrew its letter of intent and never appointed an additional dealer or awarded an additional franchise, the alleged harm, or any imminence of harm, was removed. “ ‘This Court, in addressing a variety of causes of action, has consistently held that if the plaintiff has suffered no harm, loss, injury, or damage, then the plaintiff has no claim to be adjudicated.’ ” Baldwin County v. Palmtree Penthouses, Ltd., 831 So.2d 603, 605 (Ala.2002), quoting Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057, 1060-61 (Ala.1999). The withdrawal of the letter of intent removed the controversy, rendering the matter nonjusticiable and moot.

The trial court, however, dismissed all claims but the claim for attorney fees, and awarded Schein attorney fees and costs purportedly on the authority of § 8-20-11. But § 8-20-11 permits relief under that section only to “any person who is injured in his business or property by a violation of this chapter.” In this case, the only injury was a future injury that never materialized. Thus, § 8-20-11 did not permit the award of attorney fees, or any other relief permitted thereunder, in this case.

Accordingly, the trial court’s order awarding attorney fees to Schein is reversed and the cause remanded for the trial court to dismiss Schein’s claims in their entirety.

REVERSED AND REMANDED.

HOUSTON, J., concurs.

LYONS, JOHNSTONE, and WOODALL, JJ., concur in the result.

LYONS, Justice

(concurring in the result).

I would reverse the trial court’s order awarding attorney fees as to the defendant Thomas Acheson because the plaintiff Susan Schein Chrysler, Plymouth, Dodge, Inc. (“Schein”), has failed to show that Acheson is subject to the Motor Vehicle Franchise Act, § 8-20-1 et seq., Ala.Code 1975 (“MVFA”). Schein has not shown that Acheson was a manufacturer, distributor, or dealer of motor vehicles or a representative of any such entity.

I would reverse the order as to Daimler-Chrysler because the trial court dismissed the action on DaimlerChrysler’s motion, which gave as a reason for dismissal the absence of a justiciable controversy. The trial court’s reservation of the issue of attorney fees for later adjudication does not operate as an effective substitute for an adjudication of Schein’s complaint on its merits. I cannot read into the MVFA a right to recover attorney fees without having obtained an adjudication on the merits. Schein, therefore, cannot insist on a right to recover attorney fees. Because there has been no adjudication on the merits, it is unnecessary to comment, one way or the other, as to whether the allegations of Schein’s complaint could have supported a recovery under the MVFA.

WOODALL, J., concurs.

JOHNSTONE, Justice

(concurring in the result).

I concur in the result. The expression “if consummated ” in § 8-20-11, Ala.Code 1975, reveals that this Code section contemplates proposed illegal arrangements which are not consummated but are, rather, stopped by the litigation. This Code section would authorize an award of attorney fees in favor of a person “injured in his business or property,” even if only to the extent of the expense of litigation, against a manufacturer, dealer, or distributor found guilty of proposing an illegal “arrangement.” The fatal defect in the award of attorney fees in this case is that neither defendant was found guilty of proposing an illegal arrangement. Indeed, because the trial court did not adjudicate the merits at all, the trial court did not find any of the essential elements of liability — not even the status of the individual defendant as a manufacturer, dealer, or distributor.


author: LYONS, Justice.

text:
    Ex parte Rufus L. HARALSON et al. (In re Lubie W. Griffith v. Rufus Haralson et al.).
    1012071.
    Supreme Court of Alabama.
    Jan. 17, 2003.

      Daryl L. Masters and Christina Harris Jackson of Webb & Eley, P.C., Montgomery, for petitioners.
    Edward S. Stoffregen III of Newman, Miller, Leo & O’Neal, Birmingham, for respondent.
   LYONS, Justice.

Lubie W. Griffith sued Rufus Haralson, a Lowndes County deputy sheriff; the Lowndes County Sheriffs Department (“the sheriffs department”); and other fictitiously named parties on theories of negligence and wantonness stemming from a motor-vehicle accident. Griffith alleges in her complaint that the accident occurred on June 30, 1999, on an unnamed public thoroughfare near Interstate 65 and U.S. Highway 31 in Montgomery County, when the vehicle being driven by Deputy Haral-son collided with her vehicle. The vehicle driven by Deputy Haralson at the time of the accident is allegedly owned by the sheriffs department. Griffith claims that she has incurred property damage and suffers personal injuries, including bruises, contusions, and injuries to her head, neck, legs, arms, and back. She seeks compensatory and punitive damages.

On August 1, 2001, Deputy Haralson and the sheriffs department filed a motion to dismiss the complaint, arguing (1) that Griffith’s claims against the sheriffs department are barred because, it says, the department is not a legal entity, and, therefore, is not subject to being sued, (2) that the claims against Deputy Haralson are barred by the doctrine of sovereign immunity, now referred to as State immunity, (3) that the claims are barred because Griffith was contributorily negligent, and (4) that punitive damages are not recoverable because, they say, Griffith’s claims are, in essence, claims against the State. The trial court denied the motion, and the defendants petitioned this Court for a writ of mandamus directing the trial court to dismiss Griffith’s claims against them. We grant the petition in part and deny it in part.

“A writ of mandamus is a

“ ‘drastic and extraordinary writ that will be issued only when 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 Wood, 852 So.2d 705 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc. 628 So.2d 501, 503 (Ala.1993)). A petition for a writ of mandamus “is an appropriate means for seeking review of an order denying a claim of immunity.” Ex parte Butts, 775 So.2d 173, 176 (Ala.2000). A State agency or employee can also seek this Court’s review of an order denying a claim of immunity by petitioning for permission to appeal an interlocutory order pursuant to Rule 5, Ala. R.App. P. Butts, 775 So.2d at 176.

In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review. Id.; see also Wood, 852 So.2d at 709 (review of a denial of a summary-judgment motion grounded on a claim of immunity by means of a petition for a writ of mandamus does not change the applicable standard of review). Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear that the plaintiff cannot prove any set of circumstances upon which relief can be granted. Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 89 (Ala.2001). “ ‘In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [she] may possibly prevail.’ ” Id. (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Butts, 775 So.2d at 177.

I. Dismissal of Claims Against the Sheriff’s Department

It is clear under Alabama law that the sheriffs department is not a legal entity subject to suit. King v. Colbert County, 620 So.2d 623, 626 (Ala.1993) (“[A] [sheriffs [department is not a legal entity. Therefore, one cannot maintain an action against it.”); White v. Birchfield, 582 So.2d 1085, 1086 (Ala.1991) (citing Art. I, § 14, Constitution of Alabama of 1901, “[T]he State of Alabama shall never be made a defendant in any court of law or equity.”). Griffith cannot maintain an action against the sheriffs department, and her claims against it are due to be dismissed.

II. Immunity of Deputy Haralson

Deputy Haralson argues that he is an executive officer of the State pursuant to the Alabama Constitution of 1901, Art. V, § 112. Deputy Haralson argues that as an executive officer he is entitled, under Art. I, § 14, to immunity from being sued. Deputy Haralson argues that his immunity extends to the execution of the duties of his office and that Griffith’s complaint fails to allege any of the enumerated exceptions to such immunity. See Parker v. Amerson, 519 So.2d 442 (Ala.1987). Finally, Deputy Haralson argues that even when sheriffs or deputy sheriffs are sued under theories of negligence or bad faith, the only exception to § 14 allowed by this Court is to enjoin the conduct of the State official, and, here, no such injunctive relief was requested. See Alexander v. Hatfield, 652 So.2d 1142 (Ala.1994).

Griffith argues that Deputy Haral-son is not entitled to immunity simply because he asserts that he is a State officer. See Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992). Instead, Griffith argues that Deputy Haralson is entitled to immunity only if he was “on duty” and/or was acting within the scope of his employment at the time of the accident. Griffith claims that it is not clear whether Deputy Haral-son was acting under the authority of the State at the time of the accident, and that without evidence indicating that he was acting under such authority, the trial court correctly denied his motion to dismiss.

A sheriff is an executive officer of this State pursuant to the Alabama Constitution of 1901, Art. V, § 112. Parker, 519 So.2d at 443. As an executive officer, a sheriff is immune from being sued in the execution of the duties of his office under Art. I, § 14, Alabama Const.1901. Id. at 442-43. Furthermore, a sheriff, as an employee of the State, “is immune from suit, in his official capacity, for negligent performance of his statutory duties.” Alexander, 652 So.2d at 1143; Parker, 519 So.2d at 442-43; Wright v. Bailey, 611 So.2d 300, 303 (Ala.1992).

This Court has held that deputy sheriffs are immune to the same extent sheriffs are immune because “ ‘[t]he deputy sheriff is the alter ego of the sheriff.’ ” Hereford v. Jefferson County, 586 So.2d 209, 210 (Ala.1991) (quoting Mosely v. Kennedy, 245 Ala. 448, 450, 17 So.2d 536, 537 (1944)). A deputy sheriff acting in his “official capacity] and individually” is immune from suit when the action is one against the State. See Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). See also Hereford, 586 So.2d at 210 (deputy sheriffs were entitled to State immunity for their actions in releasing a prisoner); see also Wright, 611 So.2d at 303 (deputy sheriffs were entitled to State immunity for their negligent failure to arrest a motorist); Drain v. Odom, 631 So.2d 971 (Ala.1994) (deputy sheriff was entitled to State immunity, in his official capacity, for actions taken in performance of his duties as deputy sheriff); Alexander, 652 So.2d at 1144 (deputy sheriff was entitled to State immunity for actions taken while “on duty”).

Under Art. I, § 14, Alabama Const.1901, the only exceptions to State immunity for State officers such as deputy sheriffs sued in their official capacity are as follows:

“[Ajctions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”

Parker, 519 So.2d at 443.

Deputy Haralson argues that he is entitled to immunity under the holding of Parker with respect to the performance of his official duties. In his reply brief to this Court, Deputy Haralson contends that he was “operating a [sheriffs department] vehicle, in uniform, and on sheriffs department business” at the time of the accident. However, the record presently contains no evidence as to whether Deputy Haralson was acting in his official capacity as a deputy sheriff at the time of the accident. As Griffith argues in her brief:

“There is no testimony to support that [Deputy Haralson] was in ‘hot pursuit’ of a suspect, creating [a] roadblock while working on an accident report, or some other official duty that would require a deputy to be on an interstate highway. Furthermore, he was not even within the boundaries of his authorized jurisdiction, Lowndes County.”

We cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident he was acting within the line and scope of his employment, that Deputy Haralson is entitled to immunity. No State officer, such as a deputy sheriff, can avoid tort liability simply by claiming that his “ ‘mere status as a [S]tate official cloaks him with the [S]tate’s constitutional immunity.’ ” Phillips, 555 So.2d at 83 (quoting Barnes v. Dale, 530 So.2d 770, 781 (Ala.1988)); see also Mitchell, 598 So.2d at 806. It is conceivable that Griffith could prove facts that would show that at the time of the accident Deputy Haralson was on a personal errand or otherwise had departed from the line and scope of his employment. If so, Griffith “may possible prevail” on her claims. See Nance, 622 So.2d at 299. Given the question presented by this mandamus petition — whether the trial court should have dismissed Griffith’s claims against Deputy Haralson on the ground that he is entitled to State immunity — we conclude that Deputy Haralson has not shown that he has “ ‘a clear legal right ... to the order sought.’ ” Butts, 775 So.2d at 178 (quoting Ex parte United Serv. Stations, Inc., 628 So.2d at 503).

We emphasize that this mandamus petition asks us to direct the trial court to dismiss Griffith’s claims, not to enter a judgment for her on the merits. After the parties have had the opportunity to conduct discovery, Deputy Haralson can, if he considers the evidence sufficient to establish immunity, seek a summary judgment on that ground. If he makes such a motion and the trial court denies it, he can again ask this Court to review his immunity claims, either by petitioning for permission to appeal pursuant to Rule 5, Ala. R.App. P., or by petitioning for a writ of mandamus pursuant to Rule 21, Ala. R.App. P.

Furthermore, Deputy Haralson’s claim that Griffith’s claim for punitive damages is barred because such damages are prohibited under § 6-11-26, Ala.Code 1975, must await a determination whether this action involves actions Deputy Haralson took in his official capacity.

III. Conclusion

We grant the petition to the extent it seeks a writ directing the trial court to dismiss Griffith’s claims against the sheriffs department. In all other respects, we deny the petition.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

      . See Ex parte Cranman, 792 So.2d 392 (Ala.2000). The immunity available to the State in an action against the State is now referred to as "State immunity.” The immunity available to individual defendants sued for actions taken on behalf of the State is now referred to as "State-agent immunity.” 792 So.2d at 397. In Cranman, although we restated the rule governing State-agent immunity, we did not address the State immunity afforded to sheriffs and deputy sheriffs for actions taken while working in the line and scope of their employment, and we did not overrule Ex parte Purvis, 689 So.2d 794 (Ala.1996). 792 So.2d at 396 n. 2. See also Ex parte Butts, 775 So.2d 173 (Ala.2000), in which a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity.

      . The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002). Because Deputy Haralson has an "adequate remedy” by way of an appeal as to his claim that Griffith was contributorily negligent, we do not address that claim here.


author: PER CURIAM.

text:
    CITY OF DAPHNE et al. v. CITY OF SPANISH FORT.
    1012088.
    Supreme Court of Alabama.
    Jan. 17, 2003.

      Jerome E. Speegle of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellants City of Daphne, Merritt Oil Company, Inc., and D.V. Williams.
    David J. Conner and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellee.
   PER CURIAM.

The City of Daphne, Merritt Oil Company, Incorporated (“Merritt”), and D.V. Williams (Daphne, Merritt, and Williams are hereinafter referred to collectively as “the Daphne plaintiffs”) appeal from a summary judgment in favor of the City of Spanish Fort. The Daphne plaintiffs argue that Spanish Fort conspired with certain members of the Legislature to enact an act annexing to Spanish Fort parcels of land (“the disputed parcels”) while a first annexation dispute between the Daphne plaintiffs and Spanish Fort was pending in the Baldwin Circuit Court. Because we hold that a legislative act may prospectively annex property that is the subject of a pending action, we affirm.

I. Factual & Procedural History

Daphne and Spanish Fort have been in disagreement over the purported annexations of the disputed parcels in Baldwin County since 1998. Specifically, the disputed parcels consist of property located north and east of the intersection of Interstate 10 and U.S. Highway 98 in western Baldwin County (“the mall property”) and several separate parcels of property lying, generally, along U.S. Highway 90 between the western boundary of Spanish Fort as it existed before any of the annexations at issue here and the Mobile-Baldwin County line (“the causeway property”).

Daphne filed its first action against Spanish Fort (“Dispute I”) after the voters of Spanish Fort approved the annexation of certain property pursuant to a local act of the Legislature authorizing such a referendum. Daphne had previously annexed parcels of the same property pursuant to the landowner-consent method of §§ 11-42-20 to -24, Ala.Code 1975. Merritt and Williams were also plaintiffs in Dispute I.

Dispute I reached this Court, and we adopt the following statement of facts provided in City of Spanish Fort v. City of Daphne, 774 So.2d 567 (Ala.2000), as background to the present action:

“Daphne and Spanish Fort are adjacent municipalities situated on the eastern shore of Mobile Bay in Baldwin County. The genesis of the dispute between the two cities appears to have come in 1998. In March of that year, Spanish Fort caused to be published in a Baldwin County newspaper notice of that city’s intent to seek a local act of the Legislature authorizing a referendum in which the voters of certain areas of Baldwin County would decide whether those areas would be annexed into Spanish Fort. That notice was published on March 7, 14, 21, and 25, 1998, and it included a detailed legal description of the property that Spanish Fort would seek to have the Legislature include in the area to be annexed into Spanish Fort upon the passage of a referendum of qualified electors living in the affected area.
“While considering the bill proposed by Spanish Fort, the Legislature amended it to remove approximately half of the property Spanish Fort had initially sought to have included in the area to be annexed. The property removed from the provisions of the bill by the amendment generally lay to the east and the north of the existing Spanish Fort city limits. The Legislature approved the bill as amended, and it became effective with the signature of Governor Fob James on May 6,1998. Act. No. 98-634, Ala. Acts 1998 (Reg.Sess.). The act provided that the corporate limits of the City of Spanish Fort would be altered to include the property described in the act, provided that ‘the qualified electors who reside within the territory to be annexed [approved the annexation] in a referendum to be held’ on a day selected by the Baldwin County probate judge. Id. (see § 4). The probate judge scheduled the referendum for July 28, 1998.
“In a series of meetings between July 6, 1998, and July 22, 1998, the Daphne City Council purported to annex into Daphne several parcels of property that had been included in the area subject to the referendum approved by the Legislature in Act No. 98-634. Those parcels of property may be described as falling into two general groups, the ‘mall property’ and the ‘causeway property.’ ... On July 28, the Spanish Fort annexation referendum was conducted, and the voters approved the annexation by a vote of 129-72.
“On August 5, 1998, Daphne filed an action in the Baldwin Circuit Court, seeking a judgment declaring Daphne’s purported annexation of the disputed property to be valid and declaring Spanish Fort’s purported annexation of the same property by the July 28 referendum to be invalid. Spanish Fort answered and filed a counterclaim, seeking a judgment declaring that Daphne’s purported annexation of the disputed property was invalid and declaring that the property had in fact been annexed into Spanish Fort by the July 28 referendum.”

774 So.2d at 569 (footnote omitted).

The trial court concluded that the mall property and the causeway property were validly annexed into Daphne, and that the Spanish Fort annexation was invalid because the property advertised for the proposed annexation by referendum was approximately twice the size of the area ultimately subject to the annexation after the amendment of Act No. 98-634, Ala. Acts 1998 (“the 1998 Act”). The property annexed by Spanish Fort differed materially from the property described in the advertisement, and the trial court held that such a discrepancy violated Ala. Const, of 1901, Art. IV, § 106, which provides that no local law can be passed without notice of the proposed law in the county where the subject matter affected by the law is located.

Spanish Fort appealed the trial court’s judgment in Dispute I. We affirmed that aspect of the trial court’s judgment holding that the 1998 Act violated Article IV, § 106, of the Alabama Constitution. We also affirmed the trial court’s judgment insofar as it related to the mall property; however, we reversed the trial court’s judgment as to the causeway property because Daphne’s purported annexation of the causeway property did not meet the requirement of contiguity contained in § 11-42-21, Ala.Code 1975.

Before the trial court entered its judgment in Dispute I, the mayor of Spanish Fort, several members of the Legislature, and the attorney for Spanish Fort discussed introducing a new bill to annex the disputed parcels to Spanish Fort. The bill was drafted by Spanish Fort’s attorney with input from the mayor and members of the city council of Spanish Fort. The may- or testified as to the purpose of the new bill:

“Q. What did you intend to accomplish by passing the new [bill]?
“A. To annex the territory that the majority of the people wanted to be in the city [per the referendum vote].
“Q. So if you had an adverse ruling [in Dispute I], say if you hadn’t annexed it properly in the [1998 Act], the [new bill] would overturn the judge’s decision; right?
“A. I don’t know whether it would overturn the judge’s decision or not because the judge interprets laws and the legislature passes laws. And this would be a law. And they have the authority to annex any territory without a referendum. And that wouldn’t be overturning a judge’s order.”

On April 14, 1999, the Spanish Fort City Council held a special meeting, and approved the new bill. The new bill was introduced to the Legislature on May 20, 1999, only one day before the trial court entered its judgment in Dispute I in favor of Daphne as to all the disputed parcels. The Legislature passed the new„bill, Act No. 99-547, Ala. Acts 1999 (“the 1999 Act”), and it became effective on June 18, 1999. The preamble of the 1999 Act states its purpose as follows:

“To alter or rearrange the boundary lines and corporate limits of the City of Spanish Fort in Baldwin County, Alabama, so as to include within the corporate limits of said City all territory now within the corporate limits of said City and also certain other territory. WHEREAS, the Legislature of the State of Alabama enacted [the 1998 Act] which called for a referendum to be held to determine whether certain territory described in [the 1998 Act] would be annexed into the corporate limits of the City of Spanish Fort, Alabama; and WHEREAS, an annexation election was held on July 28, 1998, and 129 votes were cast in favor of annexation of the said territory into the corporate limits of the City of Spanish Fort and 72 votes were cast against annexation, with the clear majority voting in favor of annexation; and WHEREAS, there has arisen a dispute regarding the annexation of said territory based on some alleged defects in the enactment of [the 1998 Act] resulting in some uncertainty regarding the boundary lines and corporate limits of the City of Spanish Fort; and WHEREAS, based on the intent of this Legislature in passing [the 1998 Act] and the majority vote of the people in favor of annexation, the Legislature now wishes to resolve the aforementioned dispute in the most expedient manner possible.”

The Daphne plaintiffs filed their complaint in the present action on June 29, 1999, seeking a judgment declaring that the 1999 Act was unconstitutional and enjoining Spanish Fort from exercising jurisdiction over the mall property and the causeway property. The Daphne plaintiffs claimed that Spanish Fort’s “expressed purpose was to give the Legislature, not the [trial court], the power to resolve the dispute — an illegal usurpation of judicial authority.” The Daphne plaintiffs alleged that Spanish Fort was attempting to collect taxes from the property owners of the disputed parcels. Finally, the Daphne plaintiffs alleged that the 1999 Act violated § 11-42-6, Ala.Code 1975, which requires that the act contain an accurate description of the property to be annexed, and that the 1999 Act was passed as the result of a conspiracy between the mayor of Spanish Fort and certain members of the Legislature.

The Daphne plaintiffs also filed a motion for a temporary restraining order and a preliminary injunction. The trial court denied the motion, but it ordered Spanish Fort to pay the tax revenues it had collected from the owners of the disputed parcels since the effective date of the 1999 Act to the clerk of the Baldwin Circuit Court. The Daphne plaintiffs filed several amended complaints adding claims of money had and received, intentional interference with business relations, misrepresentation, deti-nue, trover, and conversion.

Spanish Fort filed a motion for a summary judgment, claiming that the 1999 Act was constitutional and that the 1999 Act did not usurp the authority of the judiciary because a court does not have the power to annex property. Spanish Fort claimed that the Legislature intended only to correct or resolve the defects of the 1998 Act by enacting a “new, separate, prospective act.” Spanish Fort claimed that the theories of money had and received, detinue, trover, and conversion were due to be dismissed because Spanish Fort had collected no taxes from the owners of the mall property. Spanish Fort also claimed that this Court’s ruling in Dispute I — that Daphne’s annexation of the causeway property was invalid — extinguished Daphne’s claims because it was owed no taxes. Finally, Spanish Fort argued that Williams had no claim because he had not paid any taxes to Spanish Fort and that even though Merritt had paid taxes to Spanish Fort since the enactment of the 1999 Act, its claims should also be dismissed if the trial court concludes that the 1999 Act was not unconstitutional.

The Daphne plaintiffs opposed Spanish Fort’s summary-judgment motion; that response included, among other exhibits, deposition testimony of the mayor of Spanish Fort, members of the Legislature, and city council members. The Daphne plaintiffs argued that this testimony constituted evidence of a conspiracy to draft, introduce, and enact the 1999 Act, which, they said, violated the constitutional rights of the citizens living on the mall property and the causeway property. The Daphne plaintiffs also claimed that the testimony constituted substantial evidence showing that Spanish Fort intended to usurp the trial court’s authority by providing legislatively the same relief that was being sought in the trial court. The Daphne plaintiffs argued that a summary judgment was improper on their remaining claims because, they said, they had presented substantial evidence creating genuine issues of material fact.

The trial court dismissed the claim for monetary relief under the theories of conspiracy and intentional interference with business relations. The parties dismissed the alleged violation of § 11-42-6 by joint resolution. The trial court dismissed the claims of money had and received, detinue, trover, and conversion as to Daphne and Williams only. The claims against Merritt under these theories were not dismissed. The trial court entered a summary judgment in favor of Spanish Fort. The trial court held that no dispute existed as to any material fact and concluded:

“4. The court is of the opinion that it is the well-settled law of Alabama that the legislature enjoys plenary power over municipalities and their boundaries unless it is restricted by the Alabama Constitution. In the Opinion of the Justices [No. 181,] 277 Ala. 630, [633,] 173 So.2d 793, 796 (1965), the court wrote, We have held that the State, through its Legislature, at its pleasure, may modify or withdraw all the governmental powers of a municipality, may [expand] or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the State Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States (...).’ In City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61 (1909), the Alabama Supreme Court approved the legislature’s destruction of the City of Ensley and its incorporation into the City of Birmingham. In that opinion, the court noted that the fact that [although] Ensley’s inhabitants or property owners may be inconvenienced and their property values lessened by the burden of increased taxation, the citizens have no right, either by contract or otherwise, in the continued existence of a municipal corporation or in the exercise of its powers.
“6. The plaintiffs admit that the legislature’s authority is not in dispute but that the exercise of the authority took away a matter from the courts. The court is of the opinion that the action of the legislature (by passage of [the 1999 Act]) did not remove any matter that the court could decide. No circuit court in Alabama has the authority to establish a municipality’s boundaries. Circuit courts have jurisdiction only to determine whether a particular statute conforms to the provisions of the Alabama Constitution and whether the requirements of a particular act are lawfully followed.
“7. The court determines that as a matter of law, there was no violation of the separation of powers between the legislature and the judicial branches of government. For the foregoing reasons, the court is of the opinion that the second motion for summary judgment filed by the City of Spanish Fort is due to be granted. Therefore, the summary judgment be, and the same is hereby granted in its favor.”

II. Standard of Review

A motion for a summary judgment is granted when the moving party demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Ex parte Delta Air Lines, Inc., 785 So.2d 327, 329 (Ala.2000). “In order to defeat a properly supported motion for summary judgment, the plaintiff must present ‘substantial evidence,’ i.e., ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Town of Vance v. City of Tuscaloosa, 661 So.2d 739, 742 (Ala.1995) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review of a summary judgment is de novo, and we apply “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). We review a summary judgment in a light most favorable to the nonmoving party. Id.

III. The Validity of the 1999 Act

The essence of the Daphne plaintiffs’ claims, as stated in their brief to this Court, is that “Spanish Fort abused its power, [and] attempted to manipulate the different branches of government in order to get its own way, regardless of the rights of the residents of Alabama.” The Daphne plaintiffs argue that through the enactment of the 1999 Act, “Spanish Fort and the Alabama Legislature set out to design legislation to specifically decide [Dispute I] while it was pending, and thereby violated] the constitutional rights of the people they were charged to protect.” The Daphne plaintiffs argue that the 1999 Act violates the Alabama Constitution of 1901, Art. Ill, § 43, and Art. IV, §§ 95 and 105.

A Article III, § IS

The Daphne plaintiffs argue that the 1999 Act violated the separation-of-powers doctrine of § 43, Ala. Const.1901, because, they argue, Spanish Fort and the Legislature intended to usurp the authority of the judiciary by “resolving” Dispute I by passage of the 1999 Act. The separation-of-powers doctrine provides:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

Ala. Const, of 1901, Art. Ill, § 43. The Daphne plaintiffs argue that the power to render a judgment that resolves a case belongs only .to the judicial branch of government. See Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998) (holding that the retroactive application of a statute to change the reopening provisions of paternity judgments finalized before the statute was enacted violated the separation-of-powers doctrine).

The Daphne plaintiffs cite the preamble to the 1999 Act as the “most dramatic evidence” of its constitutional infirmity. The pertinent parts of the preamble are as follows:

“WHEREAS, there has arisen a dispute regarding the annexation of said territory based on some alleged defects in the enactment of [the 1998 Act] resulting in some uncertainty regarding the boundary lines and corporate limits of the City of Spanish Fort; and WHEREAS, based on the intent of-this Legislature in passing [the 1998 Act] and the majority vote of the people in favor of annexation, the Legislature now wishes to resolve the aforementioned dispute in the most expedient manner possible.”

(Emphasis added.) The Daphne plaintiffs argue that the proponents of the 1999 Act agree that the “dispute” referenced in the 1999 Act was the ongoing litigation of Dispute I.

Spanish Fort argues that the controversy at issue in Dispute I was the validity of the 1998 Act and that the final judgment held that the 1998 Act was unconstitutional. In its brief to this Court, Spanish Fort contends that the 1999 Act is an “independent act that accomplished a valid, prospective annexation effective June 18, 1999.” Spanish Fort argues that the 1999 Act did not reverse the trial court’s judgment in Dispute I, did not direct any court on how to rule in Dispute I, did not make the annexation into Spanish Fort retroactive to the effective date of the 1998 Act, and did not retroactively change any law under which Dispute I was decided. Therefore, Spanish Fort concludes, the 1999 Act did not violate the separation-of-powers doctrine. We agree.

The Alabama Constitution of 1901 “vested legislative authority in a State Legislature, whose powers are plenary and unlimited except by special limitations imposed by the [Constitution].” Sisk v. Cargile, 138 Ala. 164, 172, 35 So. 114, 117 (1903), cited in Broadway v. State, 257 Ala. 414, 417, 60 So.2d 701, 703 (1952), and Ex Parte Foshee, 246 Ala. 604, 606, 21 So.2d 827, 829 (1945). Article IV, § 104, expressly provides that the Legislature has the power to alter or rearrange by local law the boundaries of a municipality. As cited by the trial court, this Court described the plenary power of the Legislature over a municipality as follows:

“It is generally held that the Legislature, in the absence of specific constitutional limitations, has the power to detach, or authorize the detachment of, territory from municipalities. 62 C.J.S. Municipal Corporations § 48, p. 139; 37 Am.Jur., Municipal Corporations, § 35, p. 652; Annotation 117 A.L.R. 268. This principle is recognized and stated in Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757 [(1960)]. See Punke v. Village of Elliott, 364 Ill. 604, 5 N.E.2d 389 [ (1936) ].
“We have held that the State, through its Legislature, at its pleasure, may modify or withdraw all the governmental powers of a municipality, may expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the State Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.”

Opinion of the Justices No. 181, 277 Ala. 630, 633, 173 So.2d 793, 796 (1965).

The power of the judiciary, on the other hand, is “the power to declare finally the rights of the parties, in a particular case or controversy, based on the law at the time the judgment becomes final.” Jenkins, supra, 723 So.2d at 656. “ ‘[T]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.’ ” Sanders v. Cabaniss, 43 Ala. 173, 180 (1869) (quoting Thomas M. Cooly, Constitutional Limitations 91-95 (1868)). Under the separation-of-powers doctrine, the Legislature cannot enact a law that would change the law incorporated into a final judgment of a court. Jenkins, 723 So.2d at 655 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995)).

Dispute I focused upon the validity of the 1998 Act, which altered the corporate limits of Spanish Fort to include the disputed parcels, provided that a majority of qualified voters approved the annexation by a referendum. The validity of the 1999 Act was not addressed in Dispute I, and if it was enacted so as to have prospective operation, it could not usurp the power of the court to resolve the then pending litigation in Dispute I. See Jenkins, 723 So.2d at 659.

As recognized in Jenkins, this Court has long operated under the following rule of statutory construction:

“ ‘ “It may be laid down as a fundamental rule for the construction of statutes that they will be considered to have prospective operation only, unless a legislative intent to the contrary is expressed or is necessarily to be implied from the language used or the particular circumstances; especially where to construe the act as retrospective in its operation would render it obnoxious to some constitutional provision, though the fact that the retrospective operation would not be unconstitutional, does not require the act to be construed as retrospective [sic].” ’ ”

723 So.2d at 658-59 (quoting Greenwood v. Trigg, Dobbs & Co., 143 Ala. 617, 619, 39 So. 361, 361 (1905), quoting in turn 26 Am. & Eng. Ency. Law, 693).

In Jenkins, this Court addressed the validity of a statute that permitted the reopening of a finalized paternity judgment based upon scientific evidence that the adjudged father was not the biological father. 723 So.2d at 652. The statute at issue in Jenkins did not expressly require retroactive application, but, instead, provided: “ ‘This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.’ Ala. Acts 1994, Act No. 94-633, § 4.” Id. at 659. We held that the statute, applied prospectively, did not violate the separation-of-powers doctrine because that statutory construction would prevent any constitutional infirmity. Id. The 1999 Act includes the same prospective language. Furthermore, the 1999 Act refers to the 1998 Act and provides:

“Section 5. All laws or parts of laws which conflict with this Act are hereby repealed to the extent of such conflict. However, any and all rights or authority granted to the City of Spanish Fort pursuant to [the 1998 Act] shall remain in effect and shall be deemed cumulative to the authority and rights vested in the City of Spanish Fort hereunder.”

The language expressly provides that the enactment of the 1999 Act is not dependent upon the validity of the 1998 Act. The rights vested in the 1999 Act were cumulative to the rights, if any, vested by the 1998 Act. Accordingly, the 1999 Act operated prospectively to annex the disputed parcels into Spanish Fort, and such prospective effect did not usurp the power of the court in Dispute I.

Moreover, the Legislature has the plenary power to correct constitutional defects in statutes. In interpreting a criminal statute in Ex parte Jackson, 614 So.2d 405, 408 (Ala.1993), this Court acknowledged that if the Legislature disagreed with the Court’s interpretation of the statute, then the Legislature could “enact appropriate legislation to modify the statute and yield a different result in subsequent eases.” In the present action, the Legislature adopted the 1999 Act to properly annex the disputed parcels and to correct its mistakes in the 1998 Act. By enacting the 1999 Act, the Legislature did not take away a power of the judiciary. The 1999 Act annexed the disputed parcels—the same parcels Spanish Fort purported to annex under the 1998 Act—but in doing so, it did not interfere with the status of the disputed parcels between July 1998 and June 1999, the year in which the 1998 Act was in effect.

The 1999 Act contains no indication that it was enacted to resolve retrospectively the pending litigation of Dispute I. In our review of the 1999 Act, we are bound to construe the act with every presumption in favor of its validity. City of Birmingham v. City of Vestavia Hills, 654 So.2d 532, 535 (Ala.1995). Our duty is to sustain a legislative act unless it is clear beyond a reasonable doubt that the act violates a fundamental law. Id. The Daphne plaintiffs argue that the word “dispute” in the introduction of the 1999 Act refers to the ongoing litigation of Dispute I and is therefore evidence indicating that the 1999 Act intended to resolve Dispute I. However, we find that the language refers to the infirmity of the 1998 Act, which was prospectively corrected by the enactment of the 1999 Act.

The Daphne plaintiffs also argue that the Legislature was required to wait until Dispute I was finally adjudicated before it could enact legislation affecting the disputed parcels. The Daphne plaintiffs cite no authority for this proposition, however, and we know of no authority that would require the Legislature to wait until a final adjudication before it can enact an act that is prospective in effect. The 1999 Act is an independent, prospective act that altered the corporate limits and boundaries of Spanish Fort—a right expressly reserved to the Legislature. Ala. Const, of 1901, Art. IV, § 104(18).

B. Article TV, § 95

The Daphne plaintiffs argue that the 1999 Act violates § 95, Ala. Const.1901, because, they say, the Legislature changed a rule of decision “midstream” in order to affect the outcome of Dispute I. Section 95 provides that “[a]fter suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.” See United Cos. Lending Corp. v. Autrey, 723 So.2d 617 (Ala.1998) (the Legislature cannot change the law to lessen a plaintiffs recovery once the plaintiff files an action); see also Kemp v. Britt, 410 So.2d 31 (Ala.1982) (the Legislature may not change the law to lessen a state employee’s benefits after the employee has sued to collect those benefits).

The 1999 Act did not take away the Daphne plaintiffs’ cause of action, nor did it destroy a defense available to the Daphne plaintiffs in Dispute I. In fact, the 1999 Act did not retroactively affect, in violation of § 95, any of the rights available to the Daphne plaintiffs under the then existing law. See Kemp, 410 So.2d at 34. The 1999 Act created an independent, prospective annexation. For all that appears, the Daphne plaintiffs could have introduced a similar annexation bill to the Legislature to annex the disputed parcels into Daphne; however, the action was taken by Spanish Fort. The 1999 Act does not violate § 95 because it did not take away any rights available to the Daphne plaintiffs under Dispute I.

C. Article TV, § 105

The Daphne plaintiffs argue that the 1999 Act granted the very same relief that was pending before the court in Dispute I, in violation of Art. IV, § 105, Ala. Const, of 1901. Section 105 prohibits the enactment of a local law when such a law is provided for by a general law or “when the relief sought can be given by any court of this state.” The Daphne plaintiffs contend that the deposition testimony of the mayor of Spanish Fort, certain members of the Legislature, and the members of the city council of Spanish Fort constitutes evidence indicating that Spanish Fort annexed the same property in the 1999 Act that Spanish Fort had asked the Alabama courts to declare part of its municipality in Dispute I. For example, a city council member testified:

“Q. So, if you pass this Act, the '99 Act, you’d get the same relief you would have gotten if the [trial court] ruled in your favor, is that right?
“A. Yes.”

Another council member testified that she understood the legal description of the property in the annexation attempted in the 1998 Act to be the same as that in the 1999 Act.

In this state, property can be annexed to a municipality by three methods. First, the Legislature can annex property by passing a local law. Ala. Const, of 1901, Art. IV, § 104(18). Second, property can be annexed by a referendum. § 11-42-2, Ala.Code 1975. Finally, property can be annexed under the landowner-consent method pursuant to §§ 11-42-20 to -24, Ala.Code 1975. The general laws of the State place restrictions on the annexation of property under the landowner-consent method. See, e.g., § 11-42-21, Ala.Code 1975. However, the Legislature’s power to annex property by local law is restricted only by the Alabama Constitution. City of Birmingham, supra, 654 So.2d at 535.

The Constitution restricts the Legislature from enacting a local law to incorporate a municipality or to amend, confirm, or extend the charter of a municipal corporation. Ala. Const, of 1901, Art. IV, § 104. However, Art. IV, § 104, expressly provides that the Legislature may alter or rearrange the boundaries of a municipality by local law. See Town of Vance, supra, 661 So.2d at 743-44 (upholding a local law that altered the boundary lines of the City of Tuscaloosa); City of Birmingham v. Norton, 255 Ala. 262, 50 So.2d 754 (1950) (the Legislature can enact a law that rearranges or alters municipal boundaries even when the law disincorporates another municipality); City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61 (1909) (upholding a local law that altered and rearranged the boundary lines of the City of Birmingham).

The courts were limited in Dispute I to addressing only the question of the validity of the 1998 Act and the validity - of Daphne’s purported annexations under the landowner-consent method. The annexation method of the 1998 Act was held to be invalid. City of Spanish Fort, supra, 774 So.2d at 571. However, Spanish Fort could not ask the courts to annex the territory into Spanish Fort. A court’s power extends only to the cases and controversies brought before it, and the court in Dispute I could declare only whether the method used to annex territory was valid.

The Daphne plaintiffs acknowledge that a court does not have the power to annex territory; however, they argue that under the “unique circumstances” of the present action, the court could grant the same relief as that provided in the 1999 Act. However, a finding of validity or invalidity does not equate to the power to annex; that action is a prerogative of the Legislature, not the courts of this state. Because the court never had the power to annex territory to Spanish Fort, the 1999 Act does not violate § 105 because the court could not have granted the relief sought by Spanish Fort under the 1999 Act. See Sisk, supra, 138 Ala. at 171, 35 So. at 117.

la Sisk, the legislative act in question provided for a special levy of taxes to pay for bonds authorized by an original act for the construction of public roads. 138 Ala. at 170, 35 So. at 116. This Court upheld the validity of the act and recognized that it did not violate § 105 because the levy of a tax is a legislative power and such relief cannot be had in the courts. 138 Ala. at 171, 35 So. at 117. By analogy to Sisk, the court in the present action did not have the power to annex territory to a municipality because that power is reserved to the Legislature under § 104(18). In Sisk, the gravamen of the act was to levy a special tax, whereas here the gravamen of the 1999 Act was to annex territory; both are legislative powers. 138 Ala. at 172, 35 So. at 117. The court in Sisk had the power to declare the act unconstitutional, just as the court in Dispute I had the power to declare the 1998 Act unconstitutional. However, neither court had the power to grant the relief requested by the respective actions.

The Daphne plaintiffs argue that determining the meaning of “when the relief sought can be given by any court” in § 105 is a matter of first impression. The Daphne plaintiffs attempt to distinguish the meaning of the phrase from the meaning applied in Sisk because ongoing litigation regarding the same tax was not an issue before the Court in Sisk. However, the ongoing litigation in Dispute I involved only the 1998 Act. The judicial system lacked the authority in Dispute I to insulate the Daphne plaintiffs from the prospective exercise of the legislative prerogative of annexation. Consequently, the distinction from Sisk urged by the Daphne plaintiffs is not persuasive.

The Daphne plaintiffs urge us to consider the testimony of members of the Legislature; however, this Court will not inquire into the motive or intent of members of the Legislature:

“ ‘The intention of the Legislature, to which effect must be given, is that expressed in the statute, and the courts will not inquire into the motives which influenced the Legislature or individual members in voting for its passage, nor indeed as to the intention of the draftsman or of the Legislature so far as it has not been expressed in the act. So in ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the Legislature, or its legislative committees or any other person.’ ”

James v. Todd, 267 Ala. 495, 506, 103 So.2d 19, 28-29 (1957) (quoting Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 1024-25, 88 S.W.2d 1007, 1009 (1935)). In sum, the testimony presented by the Daphne plaintiffs fails to establish a genuine issue as to a material fact regarding a violation of § 105. Such testimony is immaterial in view of our holding recognizing the authority of the Legislature to annex prospectively territory that was the subject of proceedings involving the 1998 Act in Dispute I.

TV. Conclusion

We conclude that the 1999 Act is valid in its entirety and that it effectively annexes the disputed parcels of the mall property and the causeway property into Spanish Fort; therefore, we affirm the judgment in favor of Spanish Fort. We pretermit discussion of the Daphne plaintiffs’ remaining arguments.

AFFIRMED.

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

      . Merritt is an Alabama corporation with its principal place of business in Mobile County. Merritt owns and operates two gasoline service stations located on the causeway property-

      . Williams is a resident of Baldwin County who owns and resides on a tract of land located within the causeway property,

      . The new bill also included the annexation of territory not subject to the present action.

      . "[I]t is neither this Court’s duty nor its function to perform an appellant's legal research.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998); Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 503 n. 5 (Ala.1999).