author: PER CURIAM.

text:
    Alan Jerome FRAZIER v. ST. PAUL INSURANCE COMPANY.
    1020505.
    Supreme Court of Alabama.
    Oct. 10, 2003.
    David A. Kimberley of Cusimano, Keener, Roberts, Kimberley & Miles, P.C., Gadsden, for appellant.
    Robert V. Wood, Jr., and Nicole L. Stephens of Wilmer & Lee, P.A., Huntsville, for appellee.

      Donald R. Rhea and Gina D. Coggin of Rhea, Boyd, Rhea & Coggin, Gadsden, for amicus curiae Alabama Trial Lawyers Association.
   PER CURIAM.

Alan Jerome Frazier appeals from a judgment entered by the Marshall Circuit Court in favor of St. Paul Insurance Company, holding that Frazier could not, as a matter of law, recover both uninsured-/un-derinsured-motorist benefits under an automobile insurance policy and benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. We reverse and remand.

Facts

Frazier was employed by Charter Communications as a line installer; a portion of his job responsibilities involved driving the cable company truck to install, disconnect, and repair cable. On December 7, 1999, Frazier was involved in a collision while he was driving the company’s truck in connection with his job when Lee Roy Mullins pulled his vehicle out in front of the truck Frazier was driving. Frazier could not stop, and he hit Mullins broadside. As a result of the accident, Frazier suffered injuries to his neck and back. He underwent fusion surgery and various other treatment.

Because Frazier was injured within the line and scope of his employment, he qualified for workers’ compensation benefits under the Workers’ Compensation Act. On June 11, 2002, Frazier reached a settlement with St. Paul, Charter’s workers’ compensation insurance carrier.

On May 8, 2001, Frazier sued Mullins, the alleged tortfeasor, and St. Paul, Charter’s automobile insurance carrier, in the Marshall Circuit Court, seeking to recover damages for his injuries. On February 22, 2002, the Marshall Circuit Court entered a default judgment against Mullins.

St. Paul filed a motion for judgment as a matter of law, arguing that Auto-Owners Insurance Co. v. Holland, 832 So.2d 76 (Ala.Civ.App.2002), and State Farm Mutual Automobile Insurance Co. v. Carlton, 867 So.2d 320 (Ala.Civ.App.2001), aff'd on other grounds, 867 So.2d 332 (Ala.2003), precluded Frazier from receiving workers’ compensation benefits and uninsured-/un-derinsured-motorist benefits for the same injury. St. Paul argued that such a recovery would constitute a double recovery. The trial court granted St. Paul’s motion and entered a judgment for St. Paul.

Frazier appeals, asserting that the cases relied upon by St. Paul were incorrectly decided by the Court of Civil Appeals. We agree with Frazier.

Analysis

St. Paul relies upon two cases from the Alabama Court of Civil Appeals as authority for its position: Auto-Owners Insurance Co. v. Holland, 832 So.2d 76 (Ala.Civ.App.2002), and State Farm Mutual Automobile Insurance Co. v. Carlton, 867 So.2d 320 (Ala.Civ.App.2001), aff'd on other grounds, 867 So.2d 332 (Ala.2003). However, in Ex parte Carlton, 867 So.2d 332 (Ala.2003), this Court rejected the rationales of both cases now relied upon by St. Paul. Thus, neither Auto-Owners, supra, nor State Farm, supra, supports St. Paul’s argument.

In Ex parte Carlton, this Court addressed as an issue of first impression whether Nicholas Shane Carlton, an employee injured within the line and scope of his employment, was entitled, in addition to workers’ compensation benefits, to the uninsured-/underinsured-motorist benefits available under his mother’s personal automobile insurance policy. Carlton was injured while he was a passenger in a vehicle owned by his employer and being driven by a co-employee. The co-employee driver negligently turned in front of an oncoming vehicle. Carlton received workers’ compensation benefits; he then sought benefits under an automobile insurance policy his mother had with State Farm that included Carlton as an insured and that provided uninsured-motorist coverage.

State Farm refused to pay Carlton’s claim; it argued that he could not fulfill the condition precedent to recovery of uninsured-motorist benefits — that he be “legally entitled to recover” from the negligent driver — because of the exclusivity-of-remedy and the co-employee immunity provisions of the Workers’ Compensation Act. The trial court entered a summary judgment in favor of Carlton and awarded him the limits of the uninsured-motorist coverage in the State Farm policy.

State Farm appealed, arguing that Carlton’s claim for uninsured-/underinsured-motorist benefits was barred by the exclusivity provision of the Workers’ Compensation Act; that Carlton could not meet the prerequisites of the uninsured-/underin-sured-motorist provision in that he could not establish that he was legally entitled to recover from his negligent co-employee because of the co-employee immunity provision of the Act; and that the legislative purpose underlying the uninsured-/under-insured-motorist statute would not be served by providing him a further recovery, because Carlton had already received some compensation for his injuries.

On appeal, the Court of Civil Appeals rejected State Farm’s first two arguments. Addressing State Farm’s argument that it was protected by the exclusivity provision of the Workers’ Compensation Act, the Court of Civil Appeals stated:

“Although § 25-5-52[, Ala.Code 1975,] and the first sentence of § 25-5-58 could be argued to imply that the [Workers’ Compensation] Act provides an injured employee’s sole remedy against the world at large, the history and purpose of the Act indicate that those two statutes provide an injured employee’s sole remedy only against his employer and those entities identified with his employer.”

State Farm v. Carlton, 867 So.2d at 326.

Thus, the Court of Civil Appeals indicated that the exclusive remedy of the Workers’ Compensation Act was not intended to be an injured employee’s sole remedy against the world at large. The Court of Civil Appeals stated: “Sections 25-5-52 and 25-5-53 state the exclusive remedy for an injured worker as against his employer, his co-employees, the compensation insurance carrier, and the compensation service companies of the employer.” Id. at 326, citing A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 100-01 at 100-2 (2000). The Court of Civil Appeals stated:

“In 1984, the legislature set out its intent with regard to the exclusivity provisions of the [Workers’ Compensation] Act:
“ ‘The intent of the Legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant, or employee representative thereof, from civil liability in all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers’ compensation scheme. The Legislature hereby expressly reaffirms its intent, as set forth in section 25-5-53 ... regarding the exclusivity of the rights and remedies of an injured employee, except as provided herein.’
“Section 25-5-14, Ala.Code 1975

State Farm v. Carlton, 867 So.2d at 326 (emphasis omitted). Thus, the legislative intent behind the exclusive-remedy provision of the Workers’ Compensation Act was to provide a measure of protection to both employers and employees by providing complete immunity to employers and limited immunity to certain other entities and individuals so closely affiliated with that employment relationship as to be an essential aspect of the workers’ compensation scheme in exchange for a guarantee of compensation to an injured employee. This language makes clear that the exelu-sivity-of-remedy provision found in the Workers’ Compensation Act does not apply to the world at large.

However, in State Farm v. Carlton, the Court of Civil Appeals was persuaded by State Farm’s argument that Carlton had already received compensation for his injury under the Workers’ Compensation Act and, therefore, allowing further recovery would not serve the legislative purpose of the uninsured-/underinsured-motorist statute. Thus, the Court of Civil Appeals reversed the trial court’s judgment, holding that because Carlton had been afforded some measure of a remedy, Carlton was not entitled to the uninsured-motorist benefits provided under his mother’s insurance policy. State Farm v. Carlton, 867 So.2d at 328.

Carlton petitioned for a writ of certiora-ri, and this Court affirmed the judgment of the Court of Civil Appeals but on a rationale different than the rationale stated in the Court of Civil Appeals’ opinion. This Court quoted § 32-7-23, Ala.Code 1975, Alabama’s uninsured-motorist statute, which provides, in pertinent part:

“ ‘No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ... for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom....’”

Ex parte Carlton, 867 So.2d at 334. The Court also pointed out that the language of the State Farm policy issued in that case echoed the language of Alabama’s uninsured-motorist statute, providing that State Farm “ ‘will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured vehicle.’ ” 867 So.2d at 322. Thus, the Court in Ex parte Carlton considered whether Carlton could establish, as required under the uninsured-motorist statute and under the language of the State Farm policy, that he was “legally entitled to recover” damages.

The Court stated:

“This Court has held that ‘legally entitled to recover’ means that ‘the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages.’ ”

Ex parte Carlton, 867 So.2d at 334 (emphasis omitted) (quoting LeFevre v. Westberry, 590 So.2d 154, 157 (Ala.1991), quoting in turn Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983)).

Applying the above-quoted language to the case before it, the Court in Ex parte Carlton held that, because of the co-employee immunity provision of the Alabama Workers’ Compensation Act, Carlton was barred from recovering damages from his co-employee even though that co-employee had been negligent. Thus, Carlton was unable to establish that he was legally entitled to recover damages from his co-employee; as a result, he could not make the necessary showing under the uninsured-motorist statute and the language of the State Farm policy that he was “legally entitled to recover damages.” For this reason, we held that Carlton was not entitled to recover uninsured-motorist benefits under his mother’s automobile policy.

However, Ex parte Carlton did not hold simply that an injured employee who receives workers’ compensation benefits is barred, under every circumstance, from recovering any further compensation or benefits. Again, as the Court of Civil Appeals pointed out in State Farm v. Carlton, the exclusive-remedy provision of the Alabama Workers’ Compensation Act does not apply to the world at large. The exclusivity of the workers’ compensation remedy applies only to the employer, officers, directors, agents, servants, or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant, or employee representative thereof. See § 25-5-14, Ala.Code 1975.

This Court recognized this principle again in the recent case of Watts v. Sentry Insurance, 876 So.2d 440 (Ala.2003). In Watts, this Court noted that the Alabama Workers’ Compensation Act specifically provides that an injured employee who is receiving workers’ compensation benefits can sue a third party (except for certain third parties) whose negligence or wantonness proximately caused the injuries for which the employee is receiving workers’ compensation benefits. 876 So.2d at 442. If the Workers’ Compensation Act authorizes an injured employee to sue a third party while the employee is receiving benefits under the Act, clearly the exclusivity provision of the Act does not bar recovery from any and all sources other than the employer, as St. Paul argues.

We now apply these principles to the facts of this case. We note that Frazier has received workers’ compensation benefits for the injuries he sustained in the accident. Because this case does not involve a negligent or wanton co-employee, but rather a negligent third party, the co-employee immunity provision of the Workers’ Compensation Act does not apply. Additionally, St. Paul, in its role as the automobile insurance carrier for Charter, is not one of those entities or individuals to whom the exclusive-remedy provision of the Workers’ Compensation Act was intended to apply. Frazier is legally entitled to recover from Mullins, the person responsible for his injuries, but Frazier has been unable to recover from Mullins. Thus, assuming that Frazier meets the definition of an “insured” under the St. Paul automobile insurance policy and assuming that no policy exclusion applies, we see nothing in the Alabama Workers’ Compensation Act that would bar Frazier from recovering the uninsured-/underinsured-motorist benefits to which he may be entitled under the St. Paul automobile insurance policy issued to Charter.

We, therefore, reverse the judgment for St. Paul and we remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SEE, J., concurs in the result.

      . St. Paul provided both Charter’s workers' compensation insurance and its automobile insurance.

      . The relevant facts of Ex parte Carlton are virtually identical to those of Auto-Owners Insurance Co. v. Holland, supra. Therefore, Ex parte Carlton implicitly overruled the rationale of Auto-Owners.

      . We note that St. Paul does not rely on this Court's opinion in Ex parte Carlton, supra.


source: Caselaw Access Project

license: Public Domain

text:
    UBS PAINEWEBBER, INC. v. E. Walton BROWN.
    1020524.
    Supreme Court of Alabama.
    Oct. 10, 2003.
    Lee H. Zell, Will Hill Tankersley, Jr., and A. Kelly Brennan of Balch & Bing-ham, LLP, Birmingham, for appellant.
    Don B. Long, Jr., T. Charles Fry, Jr., and Susan T. Spence of Johnston Barton Proctor & Powell, LLP, Birmingham, for appellee.
   PER CURIAM.

This is an arbitration case involving a brokerage agreement. The determinative issue is whether the appellant, UBS Paine-Webber, Inc. (“PaineWebber”), a brokerage firm, could, after a corporate merger pursuant to which accounts formerly held by J.C. Bradford & Co., L.L.C. (“J.C. Bradford”), were transferred to Paine-Webber, compel the appellee, E. Walton Brown, a customer of J.C. Bradford, to arbitrate his claims against PaineWebber and Glenn E. Brandon. Brandon was a financial consultant who worked for J.C. Bradford at the time Brown opened his account there, but who was employed by PaineWebber at the time of the transactions that form the basis for this action.

In his complaint, Brown alleged that Brandon, acting as an agent of Paine-Webber, made unauthorized and unsuitable purchases of securities for Brown’s account and refused to sell the securities when Brown asked him to do so.

Even though the parties disagree as to whether Brown should be compelled to arbitrate his claims, the record clearly shows that Brown maintained a relationship with PaineWebber even after the motion to compel arbitration was filed, and the law precludes a party from claiming that a defendant owed him or her a duty arising out of a relationship between the parties and at the same time assert that he or she is not bound by the terms of an agreement governing the relationship, which agreement includes an arbitration clause that covers all preexisting disputes. Consequently, we reverse the judgment of the trial court and remand.

Facts

Brown opened a brokerage account with J.C. Bradford in November 1999. At that time, Brandon was working for J.C. Bradford. J.C. Bradford was subsequently acquired by PaineWebber Group, Inc., the parent company of PaineWebber, in the spring of 2000. In the acquisition, which was closed on June 9, 2000, J.C. Bradford Acquisition Company, an acquisition subsidiary of PaineWebber Group, Inc., merged with J.C. Bradford; J.C. Bradford continued to exist as a limited liability company and became a wholly owned subsidiary of UBS Americas, Inc., which also owns PaineWebber.

The agreement Brown executed when he established his brokerage account with J.C. Bradford contained an arbitration clause, and there was also an arbitration agreement in materials PaineWebber contends it sent to Brown on July 3, 2000, days before the transactions that form the basis for this action.

PaineWebber contends that, as a result of corporate restructuring, it acquired all of the accounts of J.C. Bradford’s customers and that it sent Brown two “negative consent” letters notifying him of that fact, as well as a “disclosure brochure” and a master account agreement that contained the arbitration clause PaineWebber contends governs Brown’s transactions. Brown makes two basic arguments in support of the trial court’s order refusing to compel him to arbitrate: (1) he denied that he received from PaineWebber either a copy of the negative consent letters, the disclosure brochure, or the master account agreement; and (2) that the brokerage agreement entered into between Brown and J.C. Bradford, on which PaineWebber partially relies, was not properly modified in accordance with the terms of that agreement.

One of the central questions presented on this appeal is the applicability of the PaineWebber master account agreement to the transactions underlying this appeal. The PaineWebber master account agreement begins with the following language:

“Note for J.C. Bradford customers: This Master Account Agreement and the following Account Information section assume that you have executed an Account Application with PaineWebber. Since we are not requiring you to execute any new account documentation as a result of the Conversion, those references and similar references, where applicable, shall mean the original account application and documentation you executed when you established your J.C. Bradford account.”

The July 3 letter PaineWebber says it sent Brown contains the following:

“We encourage you to review [the accompanying] materials closely and to contact your J.C. Bradford Financial Advisor or call (800) 727-2557 with questions. If you do not want to have your account automatically moved to PaineWebber, we request that you make arrangements to transfer your account by August 2, 2000.”

(Bold typeface and emphasis original.) A disclosure brochure that accompanied the July 3 account-transfer notice contained a section entitled “General Conversion Information,” in which PaineWebber informed Bradford customers as follows:

“Although you will not be required to execute a new account agreement with PaineWebber, your new account will be controlled by the terms and conditions applicable to all Paine-Webber accounts in the respective program (subject to the final sentence of the paragraph)....
“If we do not hear otherwise from you before August 8, 2000, and you continue to maintain your account(s) with J.C. Bradford, we will convert your account(s) and you will be deemed to have agreed to all of the changes, terms and conditions described in this Brochure. You may terminate your Agreement with us at any time by notifying us in writing.”

(Bold typeface original.) Among the terms and conditions of the PaineWebber master account agreement was a provision calling for mandatory arbitration of “any and all controversies”:

“Client agrees, and by carrying an account for Client [PaineWebber] Agrees, that, any and all controversies which may arise between [Paine-Webber], any of [PaineWebber’s] employees or agents and Client concerning any account, transaction, dispute or the construction, performance or breach of this or any other agreement, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration.”

(Bold typeface original.) Although Brown does not challenge the application of the Federal Arbitration Act to the provision in the master account agreement Paine-Webber contends is binding, and although he does not deny that the claims included in his action otherwise would have been covered under the terms of the arbitration provision, Brown testified twice, under oath — once by affidavit, and once by deposition — that he did not receive the July 3, 2000, negative consent letters, the master account agreement, or the disclosure brochure. Brown, therefore, argues that an arbitration agreement never existed between him and PaineWebber. The trial court agreed with him, but for the reasons we will state in this opinion, we believe that Brown received the master account agreement and notice of the arbitration clause contained in that document, and that his continuation of his relationship with PaineWebber precludes his denial of acceptance of the terms of the Paine-Webber agreement, which unambiguously covers preexisting disputes. .

I.

PaineWebber relies on several documents in support of its argument that Brown should be compelled to arbitrate his claims against it. First, PaineWebber contends that on July 3, 2000, it sent materials to Brown notifying him that his J.C. Bradford accounts were being transferred to PaineWebber and that they would become PaineWebber accounts; PaineWebber says that included in. that mailing was a master account agreement, which contained an arbitration clause PaineWebber contends is applicable to Brown’s accounts with Paine-Webber. However, PaineWebber argues, even if Brown did not receive the notices PaineWebber says it sent, the arbitration agreement contained in the brokerage agreement Brown entered into when he opened his brokerage account with J.C. Bradford, under the laws of merger of corporations, was binding on Brown even after his accounts were transferred to PaineWebber and could be enforced. PaineWebber also argues that “even if [this] Court were to credit Brown’s denial that he received the July 3, 2000 mailings, he unquestionably was aware of the terms of the PaineWebber account agreement as of May 2002, when [PaineWebber] filed its motion to stay proceedings pending arbitration.”

As we noted earlier, Brown makes two basic arguments in support of the trial court’s order refusing to compel arbitration: (1) he denies that he received from PaineWebber either a copy of the negative consent letters, the disclosure brochure, or the master account agreement; and (2) that the brokerage agreement entered into between Brown and J.C. Bradford, on which PaineWebber relies in part, required that any modification to the agreement be in writing and signed by an officer of J.C. Bradford and the agreement was not so modified.

II.

The trial court, after considering the documentary evidence submitted and the arguments of the parties, found that “[t]here was no merger whereby [J.C. Bradford], as a legal entity, ceased to exist and the rights and powers of [J.C. Bradford] passed to Defendant [Paine-Webber]”; rather, “[J.C. Bradford]’s contract rights, including its rights under the arbitration provisions of its customer account agreements, were unaffected by the merger, that is, the merger did not cause those rights to be transferred to Defendant [PaineWebber], which was not a party to the merger.”

We believe that the trial court erred, and we agree with PaineWebber that Brown’s contention that he was unaware of the existence of the arbitration agreement when the transactions made the basis of this action took place is without merit. Although Brown denies that he received the materials allegedly sent to him by PaineWebber, the record affirmatively shows that Brown continued his brokerage relationship with PaineWebber not only after the securities transactions made the basis of this action took place, but even after PaineWebber moved to compel arbitration. Not only did he continue to maintain his accounts at PaineWebber, but he also instructed PaineWebber representatives to sell securities that were being held in those accounts. Because of these facts, it appears that Brown takes inconsistent positions. He alleges in his complaint that PaineWebber owed him a duty to provide reliable information and that PaineWebber owed him a duty to place his assets in suitable investments, and he sought damages arising out of PaineWebber’s alleged breach of those duties. Nevertheless, in opposition to PaineWebber’s motion to compel arbitration, he denied the existence of any contractual relationship between him and PaineWebber from which such a duty could derive. This he cannot do.

This Court has held that a person who continues a business relationship after receiving notice of an arbitration provision in the contract governing that relationship implicitly consents to arbitrate any dispute that falls within the scope of the agreement. SouthTrust Bank v. Williams, 775 So.2d 184, 189-91 (Ala.2000)(holding that a bank customer agreed to arbitrate any dispute with the bank when the customer continued to use his checking account after receiving notice from the bank that the bank had modified the account agreement to incorporate an arbitration provision).

Based on the foregoing, we are of the opinion that Brown cannot confine the analysis of whether an agreement to arbitrate existed to the point when the transactions made the basis of this action took place. His continuation of the relationship with PaineWebber after those transactions precludes his denial of acceptance of the terms of the PaineWebber arbitration clause that is a part of the master account agreement and which unambiguously covers preexisting disputes. Under these circumstances, the factual dispute over whether he received the negative consent letters is not material to a resolution of this appeal, and we find no need to discuss that issue or any of the other issues presented by this appeal.

REVERSED AND REMANDED.

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

JOHNSTONE, J., dissents.


author:
LYONS, Justice.
      JOHNSTONE, Justice

text:
    LaFARGE BUILDING MATERIALS, INC. v. Phillip E. STRIBLING II and Sidney A. Evans.
    1020623.
    Supreme Court of Alabama.
    Oct. 17, 2003.

      B. Clark Carpenter, Jr., of Wooten, Thornton, Carpenter, O’Brien, Lazenby & Lawrence, Talladega; and M. Christian King, William H. Brooks, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    Will 0. “Trip” Walton III of Walton Law Firm, P.C., Auburn, for appellees.
   LYONS, Justice.

LaFarge Building Materials, Inc. (“La-Farge”), appeals from the trial court’s denial of its postverdict motion for a judgment as a matter of law (“JML”), a new trial, or, alternatively, a remittitur. We affirm in part, reverse in part, render a judgment in part, and remand.

I. Facts and Procedural History

During the 1980s, the Chattahoochee Valley Railway Company (“Chattahoochee”) leased land to Sidney Evans, who used the land to operate Valley Concrete Company in Lanett. Evans paid $100 per month to lease the land and placed improvements on the land to operate the concrete company. In 1987, Evans sold his business and the equipment used in the business to Williams Brothers, Inc., an entity that was LaFarge’s predecessor in interest. Shortly after Evans sold the business, LaFarge began to operate the concrete plant and took the additional step of securely attaching the equipment to the property by pouring concrete around the bases of the equipment. Evans remained involved in the concrete plant, working as LaFarge’s plant manager from 1987 to 1991. During LaFarge’s operation of the concrete plant, it leased the land from Chattahoochee under terms identical to those in the Chattahoochee-Evans lease.

In 1995, Phillip E. Stribling II, an acquaintance of Evans’s, purchased the land on which LaFarge’s concrete plant was located from Chattahoochee for $7,500. The purchase agreement assigned to Stri-bling all of Chattahoochee’s rights under its lease with LaFarge. Six days after Stri-bling purchased the land, Evans acquired from Stribling a 50% interest in the land.

On December 31, 1996, LaFarge’s lease expired. Stribling notified LaFarge that it could renew the lease at the substantially higher rate of $2,000 a month or it could purchase the property for $100,000. La-Farge declined both offers and opted to vacate the property.

When LaFarge vacated the property, it removed and dismantled several pieces of equipment, apparently the same equipment Williams Brothers had previously purchased from Evans. Additionally, La-Farge destroyed several structures and/or removed several structures from the property. LaFarge admitted that when it vacated the property it left the property in a state of disarray. Subsequently, Stribling and Evans sued LaFarge, alleging breach of contract, wanton or malicious destruction of property, and negligence in removing the equipment and several structures from the plant.

Paragraph 6 of the assigned Chattahoochee-LaFarge lease regarding property improvements is the centerpiece of Evans and Stribling’s claim. It provides as follows:

“6. Any buildings and improvements erected on the leased property by the Lessee shall become the sole property of Lessor at the expiration of the lease term or any extension thereof as herein provided and it is hereby understood and agreed that any building and improvements situated on the leased property at the inception date of the lease is the sole property of the Lessor.”

Evans and Stribling argue that the equipment and structures are improvements to the land; therefore, they maintain, according to paragraph 6 of the lease agreement, they owned the equipment and structures.

At trial, Evans and Stribling testified that they intended to operate a concrete plant on the land after the lease expired, and that the removal of the equipment caused them to lose profits of $424,598. LaFarge argued that the removed items consisted of “trade fixtures” and that it was entitled to remove the trade fixtures upon the termination of its lease. Stri-bling and Evans testified that LaFarge had converted a once portable cement plant into a permanent structure. La-Farge, they said, added concrete walls, anchored silos in cement, added a “batch house,” attached a diesel pump into the cement, and dug a reclamation pond. Stri-bling and Evans also presented evidence showing that the value of the property declined when LaFarge removed those objects. LaFarge contends that it erected, placed, or attached to the ground all of the equipment at issue, including structures and bins, in furtherance of its trade or business. Stribling and Evans do not contradict this contention. Stribling acknowledged that the purpose of putting the equipment on the property was to carry on a trade or business. At the close of the evidence, Stribling and Evans voluntarily dismissed their negligence and breach-of-contract claims, leaving for consideration by the jury only the tort claims alleging wantonness and intentional conduct. The trial court denied LaFarge’s preverdict motion for a JML and instructed the jury as follows on how to determine whether the equipment and the structures were trade fixtures:

“I will charge you that the intent of the party who installs the property is essential in determining whether property was a business fixture. Intent may be determined by the expressed statements of a party either oral or written or by that party’s conduct. In that regard, you may take into consideration the manner in which property was connected to the land, that is, to say whether the property was connected solely as a means of affixing or fastening the property in its place or whether the property ivas affixed in a manner with the intent of becoming a part of the land.”

(Emphasis added.) The jury returned a verdict in favor of Evans and Stribling, awarding them $500,000 in compensatory damages and $1,500,000 in punitive damages.

LaFarge then moved for a postverdiet JML, arguing that under Alabama law the equipment and structures were trade fixtures. Further, LaFarge argued that a new trial was necessary because, it argued, (1) the trial court’s instructions regarding trade fixtures were erroneous; (2) the trial court refused to charge the jury on the doctrine of equitable estoppel; (3) the trial court improperly allowed the jury to consider evidence of cleanup costs; and (4) the trial court struck the testimony of LaFarge’s expert witness. Finally, La-Farge asserted that if the trial court determined that neither a JML nor a new trial was warranted, then the punitive-damages award should be reduced because, it argued, the award violated state and federal constitutional due-process requirements.

The trial court denied LaFarge’s motion. In its order, the trial court stated that “there was a legitimate and justiciable dispute as to which items were trade fixtures and which items were a part of the realty. The court will not disturb the jury’s verdict in that regard.” Further, the court stated that the evidence regarding damages was sufficient and that the testimony of LaFarge’s expert witness was properly excluded. In response to LaFarge’s request for a remittitur of the punitive-damages award, the trial court stated that the punitive damages were not excessive in light of LaFarge’s intentional destruction of the property.

II. LaFarge’s Motion for a Judgment as a Matter of Law

This Court reviews a denial of a motion for a JML by the same standard the trial court used in initially denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Furthermore, we must determine “whether the party who bears the burden of proof had produced substantial evidence creating a factual dispute requiring resolution by the jury.” Bell v. T.R. Miller Mill Co., Inc., 768 So.2d 958, 956 (Ala.2000), citing Carter v. Henderson, 598 So.2d 1350 (Ala.1992). We view the evidence in a light most favorable to the nonmoving party and entertain any reasonable inferences the jury may have been able to draw. Bell, 768 So.2d at 956. Notwithstanding, we accord the trial court’s ruling on a question of law no presumption of correctness. Id.

Under the general rule of the common law, everything annexed to the freehold estate was treated as a part of it. However, tenants placing trade fixtures on the property to be used in connection with trade or manufacturing were excepted from the operation of the foregoing general rule. Walker v. Tillis, 188 Ala. 313, 66 So. 54 (1914).

Black’s Law Dictionary 652 (7th ed.1999) defines trade fixtures as “[r]emovable personal property that a tenant attaches to leased land for business purposes.” Black’s defines an improvement as “[a]n addition to real property whether permanent or not; esp., one that increases its volume or that enhances its appearances.” Black’s Law Dictionary 761 (7th ed.1999). A tenant can remove trade fixtures at the end of a lease term even ivhen the lease states that improvements and fixtures are not to be removed. See Walker, 188 Ala. at 327, 66 So. at 58.

“It seems to be the result of all these cases that covenants to redeliver, with all improvements, do not include trade fixtures of the tenant, but do cover all fixtures or improvements of the landlord which were intended, when placed upon the premises, to become a part of, or an improvement of, the freehold.”

Walker, 188 Ala. at 336, 66 So. at 60.

In Walker, this Court discussed the governing intention of the tenant in determining the availability of the exception applicable to improvements attached to land in the form of trade fixtures, noting:

“[Tjhat the intention of the tenant making the annexation was to serve the convenience of his trade, and not to enhance the freehold; that it was the reasonable intention of the tenant to place such trade fixtures upon the land for the purpose of better enjoying the articles annexed, or of using them in his trade as chattels, and to remove them at his pleasure.”

188 Ala. at 325, 66 So. at 57 (emphasis added). Walker emphasizes that a tenant’s intent in “serving] the convenience of his trade,” rather than the method by which the article is attached to the land, is critical when determining whether the article is an improvement or a trade fixture. In Walker, this Court stated:

“[M]ere use, in connection with the business, does not so annex machinery to the realty as to constitute it a part thereof. Intention is more or less a factor in such inquiries. It often depends upon the intention of the party making the annexation.”

188 Ala. at 324, 66 So. at 57.

“[IJt is not so much the manner in which the fixture is attached to the freehold which controls the rights of the parties, as the relation of the parties, the intention in attaching, and the use to which it is put.”

Cubbins v. Ayres, 72 Tenn. (4 Lea) 329 (1880)(emphasis added). See also Kennedy v. Lane Foods, Inc. (In re Kennedy), 192 B.R. 282, 288 (Bankr.M.D.Ga.1996) (holding that under Alabama law the intention of the annexing party is the controlling factor in determining the character of the article annexed).

As proof of intent, Evans and Stri-bling offer paragraph 6 of the Chattahoochee-LaFarge lease and contend that paragraph 6 makes it clear that the improvements belonged to them, as lessors. Evans and Stribling also rely on the testimony of Bruce Jones, LaFarge’s director of properties, whom they called as an adverse witness. Jones testified that he wrote a letter to Stribling stating that all buildings and permanent structures would be left on the property when LaFarge vacated the property. Jones also stated that in his opinion, based upon the terms of the Chattahoochee-LaFarge lease, La-Farge was not entitled to destroy and remove several structures that were on the property. However, at the close of the evidence, Stribling and Evans voluntarily dismissed their breach-of-contract claim. Even had they not done so, under Walker, a tenant can remove trade fixtures at the end of the lease term even when the lease states that improvements and fixtures are not to be removed. Finally, for proof of intent Evans and Stribling rely on La-Farge’s conduct in attaching the equipment and the structures and expressly refer to “the nature of the annexation of the buildings and improvements to the land.”

Embracing the significance of the nature of the annexation, as opposed to “the intention of the tenant making the annexation ... to serve the convenience of his trade,” Walker, 188 Ala. at 325, 66 So. at 57, the trial court instructed the jury that it could “take into consideration the manner in which property was connected to the land, that is, to say whether the property was connected solely as a means of affixing or fastening the property in its place or whether the property was affixed in a manner with the intent of becoming a part of the land.” The trial court’s instruction incorrectly applied the law governing ordinary fixtures to a case that should be governed by the law applicable to trade fixtures. Ordinary fixtures are chattel that have been so attached to the land that they become a “part and parcel” of the land. Milford v. Tennessee River Pulp & Paper Co., 355 So.2d 687 (Ala.1978). In determining whether an item is a fixture in a context other than a landlord/tenant relationship where a tenant pursues a business on the leased property, several criteria are used, including the method of annexation:

“(1) Actual annexation to the realty or to something appurtenant thereto; (2) Appropriateness to the use and purposes of the part of the realty with which it is connected; (3) The intention of the party making the annexation, of making permanent attachment to the freehold. This intention of making the annexation is inferred; (a.) From the nature of the articles annexed; (b.) The relation of the party making the annexation; (c.) The structure of and mode of annexation; (d.) The purposes and uses for which the annexation has been made.”

Langston v. State, 96 Ala. 44, 46, 11 So. 334, 335 (1891). See also Sharp v. Sharp, 540 So.2d 1373 (Ala.1989); Thornton Props, v. Alabama Power Co., 550 So.2d 1024 (Ala.Civ.App.1989). Using this test, this Court determined in Milford, where no landlord/tenant relationship existed, that equipment used to clean coal was a fixture to the land because the washers were set in concrete and had been permanently attached to the land for over 20 years.

The exception to the general rule, applicable when a tenant attaches trade fixtures to carry on his business on the leased property, is “stated to be ‘in favor of trade and to encourage industry,’ and has ever since been regarded as the original ground for the exceptions as to trade fixtures made by tenants.” Alabama Mach. & Supply Co. v. Roquemore, 205 Ala. 244, 247, 87 So. 435, 437 (1921). The trial court in MOCO, Inc. v. Gaines, 484 So.2d 470, 473 (Ala.Civ.App.1985), acknowledged the trade-fixture exception and instructed the jury regarding the classification of property as property that has become a part of the real estate or as personal property capable of being removed from the land. The first instruction was identical to the three-pronged test outlined in Langston, supra. MOCO, 484 So.2d at 473. The court then instructed the jury “that where a landowner lets his premises for business purposes, knowing the probable introduction thereon of the implements necessary to carry on the business, he (the landowner) impliedly contracts that the implements will remain personalty.” Id.

While it is true that some of the items LaFarge removed constituted equipment attached to the land and some were structures, Walker teaches that structures are nonetheless entitled to be classified as trade fixtures. In Walker, the Court discussed the English case of Elwes v. May, 3 East, 49, 51, in which a landlord sued the departed tenant alleging waste after the tenant had demolished “stables, a carpenter shop, carthouse, pumphouse, fuelhouse, etc., the buildings being of brick, mortar, and tiling, with foundations about a foot in the ground,” which the tenant had erected at his own expense. 188 Ala. at 328, 66 So. at 58. The English court found for the landlord, distinguishing buildings used for agriculture from those used for trade and affording lesser protection to the tenant engaged in farming. But this Court in Walker then noted that it had rejected the English rule in Harkness v. Sears, 26 Ala. 493 (1855), “because public policy required that erections for agricultural purposes, put upon the land by the tenant, should receive the same protection afforded by the common law of England to fixtures for the purposes of trade.” 188 Ala. at 329, 66 So. at 58. This Court in Walker then discussed Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829), in which the United States Supreme Court noted the extension of the rule regarding trade fixtures to agricultural tenants and, in so doing, spoke to the applicability of the exception for trade fixtures in the context of structures or buildings:

“Mr. Justice Story [writing for the Court in Van Ness v. Pacard ] held that the question whether a given article is capable of removal as a trade fixture did not depend upon the form or size of the building, whether it had a brick foundation, or whether it was one or more stories high, but that the only question was whether it was designed for the purposes of trade; that a tenant could erect a large, as well as a small, building; that he could erect it one or two stories high, and with such foundation as he chose; and that he would not be liable for waste in tearing down and removing a wooden building, with a stone cellar and a brick chimney, upon a lot of land which he had rented for 20 years for the purpose of carrying on the business of dairyman, and as a residence for his family and servants while so engaged.”

Walker, 188 Ala. at 329-30, 66 So. at 58-59 (emphasis added).

Evans and Stribling contend that MacArthur Bros. v. Middleton, 200 Ala. 147, 75 So. 895 (1917), overruled Walker. However, the structures at issue in Middleton were permanent residences and a rock bin. In Middleton, this Court, apparently based upon language in Walker, upheld the trial court’s refusal to give an abstract instruction, which the tenant had requested, that “the laws are extremely indulgent to the latter [the tenant] with respect to the fixtures annexed for a purpose connected with such temporary possession.” 200 Ala. at 148, 75 So. at 895. The Court observed in Middleton that “every expression in an opinion does not afford a basis for a special written charge.” 200 Ala. at 149, 75 So. at 897. Continuing, the Court stated, “Moreover, the articles dealt with in the Walker Case, supra, were of a very different nature and character, and were designed and used for a different purpose than the buildings in question.” 200 Ala. at 148, 75 So. at 895. While the removal of permanent buildings was not in issue in Walker, the dictum in Walker is very clear on the point. Further, in Middleton, as was apparent from an earlier appeal in the case, the landlord contended that pursuant to an oral agreement entered into before construction, the houses, which were to be built on the land for the purposes of the tenant’s operation, were to be left on the land and not to be removed from it. See Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461 (1916). As to the rock bin, while the opinion does not state the facts with great clarity, there is a basis from which to conclude that ownership of the rock bin was also resolved before the execution of the agreement before the Court. Here, not only is there no evidence of an agreement dealing specifically with the prospect of the construction of the property at issue, Evans, when he was lessee, under the terms of the same paragraph 6, sold the property to LaFarge’s predecessor and only later was the equipment securely attached to the land. We see no basis to retreat from the discussion in Walker of trade fixtures and the effect of clauses attempting to reserve improvements to the lessor as those clauses relate to trade fixtures.

The trial court’s instruction here is inconsistent with Walker and places impermissible emphasis on the method of attachment. On the question whether an article attached to land comes within the exception for a tenant’s trade fixtures, which displaces the general rule that everything annexed to the freehold becomes a part of it, whether the property was fastened to the land or was attached in such a manner as to give a presumption that the property was a part of the land is not determinative.

Justice Johnstone’s dissent maintains that the trial court’s instruction is faithful to Walker, relying principally upon the following statement in Walker:

“It seems to be the settled rule that whenever such connections and additions are made solely as a means of staying or fastening the chattels in their places, to be used in the business of the tenant, without the intention to incorporate them into, or to make them a part of, the realty, they are not improvements of the demised premises within the meaning of such covenants of the lease.”

188 Ala. at 335, 66 So. at 60 (emphasis added). The portion of the foregoing passage from Walker tying the intent to fasten the chattels to their use in the business of the tenant is the critical omission from the trial court’s instruction. The trial court here let the jury consider “the manner in which property was connected to the land, that is ... to say whether the property was connected solely as a means of affixing of fastening the property in its place or whether the property was affixed in a manner with the intent of becoming a part of the land.” Conspicuously absent from this formulation is the crucial inquiry as to whether there was an intent that the property “be used in the business of the tenant.” Walker, 188 Ala. at 335, 66 So. at 60.

This approach to the issue of intent in the law of trade fixtures is not only consistent with Walker, it is in the mainstream of today’s jurisprudence. See, e.g., Colonial Pipeline Co. v. State Dep’t of Assessments & Taxation, 371 Md. 16, 34-35, 806 A.2d 648, 659 (2002), in which the court held:

“The trade fixtures exception to the common law rule of fixtures dates back almost as far as the common law rule itself. Van Ness v. Pacard, 27 U.S. 137, 143-44, 2 Pet. 137, 7 L.Ed. 374, 376-77 (1829). In 1802, this Court held in Kir-wan [v. Latour, 1 H. & J. 289 (1802)] that ‘where a tenant puts up any thing for the purpose of carrying on his trade, he may remove it’ 1 H. & J. at 291. A trade fixture commonly is defined as an item affixed to realty for the purpose of enabling the tenant to perform properly a trade or profession, which can be removed without material or permanent injury to the realty. [Richard R. Powell, Powell on Real Property] § 57-45 [ (1969) ]. The touchstone for the trade fixtures test, like the Dudley [v. Hurst, 67 Md. 44, 48, 8 A. 901, 902 (1887)] fixtures analysis, is intent: ‘[t]he sole question is, whether it is designed for purposes of trade or not.’ Van Ness, 27 U.S. at 146, 7 L.Ed. at 378. See also Dudley, 67 Md. at 48, 8 A. at 902 (stating that of the prongs of the fixtures test, ‘the most important is the question of intention’). When the proper intent is found, ‘[n]o matter how strongly [the fixtures are] attached to the soil or imbedded in it, they are treated as personal property, and as such stibject to removal by the person erecting them.’ N. Cent. Ry. Co. v. The Canton Co., 30 Md. 347, 352 (1869).”

(Emphasis added.)

Although Walker dealt with amusement-park rides and we deal here with the components of a concrete plant, this distinction does not alter the result in light of the facts before us. As previously noted, Evans was once the tenant of this very same property he now owns. It was Evans, the tenant, who brought the components of the concrete plant to the property, and it was Evans, the tenant, who, at the end of his status as tenant, sold the components to LaFarge’s predecessor as it became the new tenant on this same property. It was Evans who pocketed the entire proceeds of the sale of the components, to the exclusion of the landlord. Now, after LaFarge poured concrete around these components and added silos and bins with the undisputed intent to further its pursuit of its trade, the same Evans, in his new role as landlord, with Stribling, of the very same property, after having announced a rent increase from $100 per month to $2,000 per month, claims that the components of the concrete plant he previously sold as trade fixtures have become the property of the landlord.

We would reverse the trial court’s judgment so that a new trial could be had on the issue of trade fixtures at which a correct instruction could be given authorizing the jury to consider whether LaFarge installed the property with the intent to use it in furtherance of its trade or business if there was evidence to the contrary. However, as previously noted, it is undisputed that the property in question was installed for the purpose of furthering LaFarge’s business. Therefore, we render a judgment in favor of LaFarge on that issue.

In their complaint, Evans and Stribling listed three separate counts against LaFarge for breach of contract, wanton or malicious destruction of property, and negligence. After each claim, Evans and Stribling requested damages for the value or replacement cost of property that we now deem to be trade fixtures, as well as $468,645 to clean the property. At trial, Evans and Stribling offered evidence of damage to the land separate from the removal and destruction of property that we deem trade fixtures in the form of the cost of cleaning up the property. In support of its preverdiet motion for a JML, LaFarge, in addition to contending that the removed items were trade fixtures, also argued that Evans and Stribling were not allowed to recover any costs for the removal of debris other than the debris created from the destruction of two concrete buildings. In its postverdict motion for a JML, LaFarge further argued that the trial court erred by charging the jury that it could award damages for restoration of the property or for cleanup costs. On appeal, LaFarge contends that Evans and Stribling could recover only the difference between the value of the property before and after the property was damaged. LaFarge hinges its argument upon ordinary principles of real property law and not on the law of trade fixtures.

The Court in Walker observed that “[t]he rule in regard to the removal of fixtures always requires that they be capable of removal without destruction or serious injury to the freehold, unless there is a contract to remove.” 188 Ala. at 380, 66 So. at 59 (emphasis added). Although a tenant may have the right to remove trade fixtures, it does not have the right to damage the freehold in the process. The trial court correctly noted in its order denying LaFarge’s postverdict motion for a JML that “[e]ven if all the of the property removed and damaged by [LaFarge] were considered to be trade fixtures the manner of removal and destruction could be considered to be excessive....” In accordance with the rule in Walker, LaFarge is liable for the destruction or injury to the property resulting from the removal of the trade fixtures in an amount equal to the cleanup costs. Consequently, although the trial court erred in denying LaFarge’s motion for a JML as to the claim for damages for removal of trade fixtures, the court properly denied the motion as to the claim for cleanup costs.

III. Conclusion

We affirm the trial court’s order insofar as it denied LaFarge’s motion for a JML on the count of the complaint seeking damages for cost of cleanup, and we remand for a new trial as to the issue of damages. However, insofar as the trial court’s order awarded damages for removal of trade fixtures, we reverse and render a judgment in favor of LaFarge.

AFFIRMED IN PART; REVERSED IN PART; JUDGMENT RENDERED IN PART; AND REMANDED.

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

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur to the extent that the main opinion affirms the trial court. I respectfully dissent to the extent that the main opinion reverses the trial court. The main opinion wrongly reverses the trial court for correctly instructing the jury on the law governing proof of a tradesman-lessee’s intent in annexing structures to the leasehold.

The issue is what structures built or affixed by the appellant-lessee are not subject to the provision of the lease that “[a]ny buildings and improvements erected on the leased property by the Lessee shall become the sole property of the Lessor at the expiration of the lease term.” The main opinion holds that “trade fixtures” are not subject to the provision. The holding reads, “A tenant can remove trade fixtures at the end of a lease term even ivhen the lease states that improvements and fixtures are not to he removed,” 880 So.2d at 419 (emphasis in main opinion). This holding in and of itself seems correct.

The problem in the main opinion, however, is that it holds, in so many words, that a structure built or affixed by the lessee in furtherance of his trade or business qualifies as a trade fixture irrespective of the “method of attachment,” unless the lessee, at the time of building or affixing the structure, unilaterally intended for it to become a part of the lessor’s property. 880 So.2d at 422. Accordingly, the main opinion reverses the trial court for this paragraph of the jury instruction:

“I will charge you that the intent of the party who installs property is essential in determining whether property was a business fixture. Intent may be determined by the expressed statements of a party either oral or written or by that party’s conduct. In that regard, you may take into consideration the manner in which property was connected to the land, that is, to say whether the property was connected solely as a ' means of affixing or fastening the property in its place or whether the property was affixed in a manner with the intent of becoming a part of the land.”

880 So.2d at 418 (emphasis in main opinion). This paragraph of the jury instruction, however, is immediately preceded by another critically pertinent paragraph of the instruction and is immediately followed by still another critically pertinent paragraph. The three pertinent paragraphs together read:

“The defendants in this case were tenants because they were in possession of the property by virtue of a lease. A tenant may remove fixtures attached for the purposes of carrying on his trade or business. A tenant has this right regardless of the manner or degree to which an item is attached to the land or so long as the original purpose for placing the item on the land was for conducting a trade or business.
“I will charge you that the intent of the party who installs property is essential in determining whether property was a business fixture. Intent may be determined by the expressed statements of a party either oral -or written or by that party’s conduct. In that regard, you may take into consideration the manner in which property was connected to the land, that is, to say whether the property was connected solely as a means of affixing or fastening the property in its place or whether the property was affixed in a manner with the intent of becoming a part of the land.
“I further charge you that if you are reasonably satisfied from the evidence that any item of property removed by the defendant was placed on the premises to be used in connection with a trade or business, then the tenant would have the right to remove that property at the end of the lease even if you are reasonably satisfied that such item would otherwise qualify as improvements or fixtures provided, however, that a party may enter into a contract whereby he waives his right to remove a business or trade fixture.” (Emphasis added.)

“In reviewing the trial court’s instruction to the jury, this Court reads and considers the entire charge as a whole.” Cooper & Co. v. Lester, 832 So.2d 628, 641 (Ala.2000).

In condemning this jury instruction, the main opinion relies almost entirely on Walker v. Tillis, 188 Ala. 313, 66 So. 54 (1914). So does today’s appellant-lessee, the party which wins a reversal by the main opinion. Indeed, the appellant-lessee cited Walker no fewer than 40 times to the trial court, and cites Walker no fewer than 17 times in briefs to us. Yet, Walker appears not only to allow but indeed to require a jury instruction to this very effect.

The property in Walker consisted only of “amusement devices” from an amusement park, 188 Ala. at 318, 66 So. at 55-57. Walker describes in detail the easy detach-ability of most of the devices and does not mention any damage resulting to the realty from the detachment. 188 Ala. at 319-20, 66 So. at 55-56. Walker imposes this restriction on trade fixture status:

“The rule in regard to the removal of fixtures always requires that they be capable of removal without destruction of serious injury to the freehold, unless there is a contract to remove. But, as before stated, no general rule can be laid down for all cases, such removal depending upon the peculiar circumstances of the case.”

Walker, 188 Ala. at 330, 66 So. at 59 (emphasis added). Walker further explains and holds:

“It was held by Chief Justice Beasley (Erdman v. Moore, 58 N.J.Law, 461, 33 Atl. 958) that articles claimed to be fixtures in that case could not, by reason of mere physical connection with the land, be deemed such to the extent that they could not be removed by the tenant. All the courts seem to hold that the element of intention is the controlling factor in determining whether additions to real estate shall retain apparent indications that they are still personalty and become incorporated into the realty, and that each case must be controlled by the evidence of annexation and intention exhibited in that particular case, and that the difficulty arises in applying the rule.
“Where annexation is of such a character as to indicate the purpose to make the chattels a part of the realty, they will be held to have become realty, but, where it does not indicate such an intent, the chattels do not become a part of the realty or ‘improvement,’ within the meaning of the lease. It seems to be the settled rule that whenever such connections and additions are made solely as a means of staying or fastening the chattels in their places, to be used in the business of the tenant, without the intention to incorporate them into, or to make them a part of, the realty, they are not improvements of the demised premises within the meaning of such covenants of the lease.”

Walker, 188 Ala. at 334-35, 66 So. at 60 (emphasis added). The jury instruction in the case now before us faithfully follows these holdings.

In the case before us, a number of the structures were buildings with concrete walls built integrally with the concrete floors and foundations, with the network of steel reinforcement bars (rebar) embedded within the concrete and extended from the foundations and flooring up into and throughout the walls. A number of concrete silos were attached to concrete foundations with legs consisting of steel I-beams embedded in the concrete. The record contains abundant evidence that some of these structures were so annexed to the realty that the appellant-lessee could not remove them for any economic reuse but, rather, wantonly or even willfully destroyed them and left the rubble and wreckage on the lessor’s premises to impede the use of the premises for any similar trade in the future.

This evidence presents jury questions whether, in the words of Walker, supra, the “annexation [was] of such a character as to indicate the purpose to make the chattels a part of the realty” or, on the other hand, whether such “connections and additions [were] made solely as a means of staying or fastening the chattels in their places, to be used in the business of the tenant, without the intention to incorporate them into, or to make them a part of, the realty.” 188 Ala. at 334-35, 66 So. at 60. The jury instruction at issue in this case substantially covered this very law as stated by Walker. Of course, the facts before us are critically more favorable to the lessor than the facts in Walker, for the structures in this case were more realty themselves than chattels and were impossible to remove without gross damage to the leasehold. As Walker says, “whatever was in the nature of buildings or support of buildings the defendant had not a right to remove.” 188 Ala. at 336, 66 So. at 60 (emphasis added).

Inasmuch, as the appellant-lessee has relied principally on Walker before the trial court and still relies principally on Walker before us, the cases from other states cited and quoted by the main opinion for a rule more favorable to the appellant-lessee hardly warrant any reversal. Thus, I respectfully submit that the judgment of the trial court should be affirmed in its entirety.

      . The jury instructions were not at issue in MOCO. However, the Court of Civil Appeals reversed the judgment entered on the jury’s verdict because the weight of the evidence, in light of the jury instructions, supported a conclusion that the items were trade fixtures as opposed to improvements that become part of the real estate.

      . Evans testified that the property was worth $250,000 to $500,000 before the plant was removed and after the removal the property was worth “a minus $122,000.” Evans then stated, "That's what it's going to cost to clean it up.”

      . Accord, Seeger v. Pettit, 77 Pa. 437 (1875) ("The true rule to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them as permanent improvements, to be left for the benefit of his landlord; and as a general rule he will be entitled to remove them during his term. For any injury to the freehold by reason of such removal, he is of course liable to the landlord in damages." (emphasis added)).


author: WOODALL, Justice. JOHNSTONE, Justice HARWOOD, Justice

text:
    SMITH FAMILY COMPANIES, INC., d/b/a Smith Companies v. The HOME DEPOT, U.S.A., INC., and Tom Burns.
    1021291.
    Supreme Court of Alabama.
    Oct. 24, 2003.
    Tony S. Hebson and Cathey E. Berardi of Hebson & Slate, Birmingham, for appellant.
    Thomas S. Hale and Scott W. Gosnell of Burgess & Hale, L.L.C., Birmingham, for appellees.
   WOODALL, Justice.

AFFIRMED. NO OPINION.

See Ala. R.App. P. 53(a)(1) and (a)(2)(E). See also Ala. R.App. P. 28(a)(10); Bruce v. Cole, 854 So.2d 47, 59 (Ala.2003); Birmingham Hockey Club v. National Council on Comp. Ins., 827 So.2d 73, 85 (Ala.2002); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988); Hickman v. Winston County Hosp. Bd., 508 So.2d 237 (Ala.1987).

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

JOHNSTONE and HARWOOD, JJ., concur in part and dissent in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in affirming summary judgment in favor of defendant Burns on the plaintiffs tortious interference claim and in favor of defendant Home Depot on the plaintiffs promissory fraud claim. I respectfully dissent from affirming summary judgment in favor of Home Depot on the plaintiffs contract claim.

HARWOOD, Justice

(concurring in part and dissenting in part).

I concur in affirming the summary judgment except insofar as it concerned the breach-of-contract claim. I conclude that, as to that claim, genuine issues of material fact exist with regard to whether one or the other of the two purchase-order memo-randa sent by Smith Family Companies, Inc., to Home Depot, U.S.A., Inc., satisfied the requirement of § 7-2-201(2), Ala.Code 1975, when Home Depot gave no written notice of objection to the contents of those purchase-order memoranda.


author: SEE, Justice. JOHNSTONE, Justice

text:
    JIM WALTER HOMES, INC., and Jerry Tinch v. David SAXTON.
    1020513.
    Supreme Court of Alabama.
    Oct. 24, 2003.

      George W. Walker III and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellants.
    Billy B. Amason of Hand & Associates, LLC, Opelika, for appellee.
   SEE, Justice.

Jim Walter Homes, Inc., and Jerry Tinch (collectively “JWH”), defendants in an action pending in the Russell Circuit Court, appeal from that court’s order denying their motion to compel arbitration. David Saxton, the plaintiff, argues that it was JWH’s burden to prove to the trial court that there was an agreement to arbitrate, and that JWH failed to do so. We reverse and remand.

On April 12, 1999, Saxton entered into a contract with JWH for the construction and financing of a new house; attached as Exhibit D, to the contract was a document entitled “Arbitration Agreemenb-Ala-bama.” The house was to be built by JWH on land Saxton owned in Hurtsboro, at a total cost of $178,596, including financing charges. On June 3, 2002, after the house was constructed, Saxton sued JWH, alleging breach of warranty, fraud, negligence, and breach of contract, and asserting a products-liability claim. On September 25, 2002, JWH moved to compel arbitration of the claims pursuant to Exhibit D. Exhibit D reads, in relevant part:

“The parties agree that, at the election of either party, any controversy or claim arising out of or relating to this contract, or the breach thereof, whether asserted as in tort or contract, or as a federal or state statutory claim, arising before, during or after contract, or as a federal or state statutory claim, arising before, during or after the performance of this contract, shall be settled by binding arbitration in accordance with the Comprehensive Arbitration Rules and Procedures administered by J.A.M.S./Endispute, and judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes.”

On October 25, 2002, Saxton filed a response in opposition to JWH’s motion to compel arbitration asserting six reasons the arbitration provision should not be enforced. On November 4, 2002, the trial court, without identifying the specific grounds for its decision, denied JWH’s motion to compel arbitration. On November 8, JWH filed a motion asking the court to reconsider its November 4 order; however, that motion was denied on November 22. On December 30, 2002, JWH filed a timely notice of appeal to this Court.

I.

Review of a trial court’s denial of a motion to compel arbitration is properly sought through a direct appeal. Rule 4(d), Ala. R.App. P.; A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). We apply the de novo standard of review to such appeals. Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 502 (Ala.1999).

II.

A party seeking to compel arbitration has the burden of proving: (1) the existence of a contract containing an arbitration agreement and (2) that the underlying contract evidences a transaction affecting interstate commerce. Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002). Once those two items have been shown, the burden shifts to the opposing party to present evidence either that the arbitration agreement is not valid or that it does not apply to the dispute in question. Id.

Saxton does not dispute that he signed an agreement to arbitrate any claims that might arise from the contract he entered into with JWH. JWH has also presented evidence indicating that the transaction at issue affects interstate commerce: JWH is a Florida corporation, the money used to finance the construction of Saxton’s house was transferred from a bank in Florida, Saxton sent his mortgage payments to Florida, the contract was prepared in Florida, and some of the materials for the actual construction of the house came from outside Alabama. These facts are sufficient to evidence a transaction affecting interstate commerce. See Jim Walter Homes, Inc. v. Spraggins, 853 So.2d 913 (Ala.2002) (concluding that the facts that the contract was prepared in another state, the financing was from out of state, and materials from outside the state were used in the construction provide the requisite effect on interstate commerce).

Saxton offers six reasons he believes the arbitration agreement is invalid. First, he argues that the arbitration agreement is unconscionable because, Saxton says, he had no meaningful choice, the agreement, which reserves JWH’s right to access the court system while extinguishing Saxton’s, lacks mutuality of remedy, and there is unequal bargaining power between the parties. This Court addressed this same argument in Vintson, where we held that “ ‘agreements to arbitrate are not in themselves unconscionable.’ ” 753 So.2d at 504 (quoting Ex parte McNaughton, 728 So.2d 592, 598 (Ala.1998)). We also stated:

“The [plaintiffs’] mutuality-of-remedy argument is simply erroneous....
“ ‘The doctrine of mutuality of remedy is limited to the availability of the ultimate redress for the wrong suffered by a plaintiff, not the means by which that ultimate redress is sought. A plaintiff does not seek as his ultimate redress an arbitration proceeding or a court proceeding. Instead, he seeks legal relief (e.g., damages) or equitable relief (e.g., specific performance) for his injury, and he uses the proceeding as a means to obtain that result.’ ”

753 So.2d at 504 (quoting Ex parte McNaughton, 728 So.2d 592, 598 (Ala.1998)). Vintson also holds that a party claiming to have had no “meaningful choice” must present evidence indicating that he or she could not have entered into a similar contract without an arbitration requirement either with the same party or with a competitor. 753 So.2d at 504. Sax-ton has presented no such evidence. Accordingly, his argument that the arbitration agreement is unconscionable fails.

Saxton’s second argument is that the arbitration agreement is unenforceable because, he says, he did not knowingly, willingly, and voluntarily waive his right to a jury trial. Saxton fails to provide any legal or factual basis for this assertion. It is, however, undisputed that Saxton signed Exhibit D, which is clearly labeled “Arbitration Agreement-Alabama”; that agreement by its terms applies to Saxton’s claims. We stated in Vintson that “ ‘when 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 and will be bound thereby.’ ” 753 So.2d at 502 (quoting Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991)). Saxton cannot reasonably assert that he did not knowingly, willingly, and voluntarily waive his right to a jury trial when the arbitration agreement he signed states that “[t]he parties agree and understand that they choose arbitration instead of litigation to resolve disputes.”

Saxton’s third argument is that the contract does not involve interstate commerce. He cites Hays Corp. v. Bunge Corp., 777 So.2d 62, 64 (Ala.2000), for the proposition that “ ‘ “[a] construction contract supplying material and labor is an example of a type of contract that is considered intrastate.” ’ ” (Quoting Building Maint. Pers., Inc. v. International Shipbuilding, Inc., 621 So.2d 1303, 1305 (Ala.1993), quoting in turn Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370-71 (Ala.1988).) Saxton fails to recognize, first, that the interstate nature of the contract at issue here is not based solely on the construction of the house. The contract between Saxton and Jim Walter ■Homes also served as a financing contract, and the financing for Saxton’s house originated in Florida. In a previous case involving the interpretation of a similar arbitration agreement in a contract involving Jim Walter Homes, this Court held that “[t]his combination of financing and material originating from outside the state provides the requisite substantial effect on interstate commerce.” Jim Walter Homes, Inc. v. Spraggins, 853 So.2d at 919.

Further, to the extent that Hays Corp. stands for the proposition that the mere use of out-of-state materials in a construction project in Alabama does not involve interstate commerce, that decision has been overruled. In Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), the Supreme Court of the United States, in holding that an arbitration agreement involving interstate commerce is specifically enforceable under the Federal Arbitration Act, 9 U.S.'C. § 1 et seq., also held that the requirement that an individual contract involve interstate commerce should be read in the broadest possible terms because the word “involving” signals “an intent to exercise Congress’ commerce power to the full.” Id. at 277, 115 S.Ct. 834. In the years following Allied-Bruce Terminix, this Court developed a five-part test to determine whether a transaction involved interstate commerce. Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). However, in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), the Supreme Court of the United States held that the test this Court had developed “gave inadequate breadth” to the Federal Arbitration Act, and that every transaction need not have a specific effect upon interstate commerce for the transaction to substantially effect interstate commerce. Instead, the United States Supreme Court held that a transaction should be considered to involve commerce “if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ ” 539 U.S. at 57, 123 S.Ct. at 2040 (citing Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). While the import into Alabama of construction materials for Saxton’s house in and of itself may have had a negligible effect on interstate commerce, the interstate shipping of goods in general clearly may be regulated by Congress; thus, the transaction “involves” commerce for purposes of triggering the application of the Federal Arbitration Act. Accordingly, Saxton’s argument that the arbitration agreement is not enforceable because the contract does not involve interstate commerce is without merit.

Saxton’s fourth argument is that Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala.2000), stands for the proposition that JWH may not enforce the arbitration agreement because it did not sign the agreement, and only signatories to an agreement to arbitrate may elect to enforce the agreement. Saxton, however, misinterprets our holding in Gary. Gary involved the manufacturer of a mobile home who sought to compel arbitration based on a provision in a contract of sale between the buyer of the mobile home and the seller, who was not a party to the action in which arbitration was sought. The Court refused to enforce the provision in the dispute between the buyer and manufacturer because the provision was limited to “any complaint between the parties ” to the contract, and the parties were the buyer and seller. Gary, 774 So.2d at 526 (emphasis added). In the present case, Saxton did sign the agreement to arbitrate, and Saxton and JWH are, respectively, the buyer and the seller. See Fleetwood, Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000) (concluding that a party that did not sign an arbitration agreement may enforce the agreement against another party that did sign it).

Moreover, Saxton’s position is inherently inconsistent. In his complaint, he alleges that JWH breached its contract with him. However, he now argues that the contract is invalid because JWH did not sign it. This Court has stated that a party may not “pick and choose which contract provisions [he] wishes to have benefit [him] and reject those [he] does not wish to have bind [him]; instead, [he] must accept or reject the entire contract.” Credit Sales, Inc. v. Crimm, 815 So.2d 540, 546 (Ala.2001). Because Saxton has taken the position that JWH breached its contract with him, he cannot now claim that the contract is invalid because JWH failed to sign it.

Saxton’s fifth argument is that because the arbitration agreement, i.e., Exhibit D, “Agreement to Arbitrate-Alabama,” was signed a month before the final contract was executed, it is a separate agreement from that contract, and is unenforceable because it lacks consideration. However, the arbitration agreement is attached as an exhibit to the final contract and that contract expressly incorporates the arbitration agreement; indeed, Saxton initialed the clause that referenced the arbitration agreement. See Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (“Under state-law principles of contract interpretation, parties may be bound by documents incorporated by reference.”).

Saxton’s sixth and final argument is that the arbitration agreement is negated by the choice-of-law provision in the contract, which states the contract is to be governed by the laws of the State of Alabama. Saxton argues that because under § 8-1-41(3), Ala.Code 1975, agreements to submit future controversies to arbitration cannot be specifically enforced, the arbitration agreement cannot be enforced. However, in Allied-Bruce Terminix, the Supreme Court of the United States held that the Federal Arbitration Act preempts § 8 — 1—41(3) of the Alabama Code in a contract, like this one, that involves interstate commerce. 513 U.S. at 270, 115 S.Ct. 834. See also Woodmen of the World Life Ins. Soc’y v. White, 35 F.Supp.2d 1349 (M.D.Ala.1999) (concluding that a dispute was subject to arbitration under the Federal Arbitration Act, notwithstanding a choice-of-law provision that mandated the application of Alabama law).

III.

Because JWH has proven the existence of an arbitration agreement and presented the necessary evidence proving that the underlying contract involves interstate commerce, and because Saxton has presented no evidence indicating that the arbitration agreement is not valid, we reverse the trial court’s order denying JWH’s motion to compel arbitration and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

But for one reservation, I concur in the main opinion. The reservation is that I concur only in the result of the analysis of the issue of whether the nexus of the contract with interstate commerce is sufficient for the Federal Arbitration Act to apply.

      . Saxton presented these six arguments to the trial court. On appeal, Saxton's sole contention is that this Court should "surmise by the fact that the trial court ruled against JWH and Tinch that they did not successfully carry their burden of establishing an agreement to arbitrate.” That contention is without legal or factual basis. However, because the trial court did not state the grounds on which its decision was based, this Court will address Saxton’s six arguments.

      . This Court has rejected the argument that an arbitration agreement requires consideration separate and distinct from consideration that supports the contract as a whole. Vintson, 753 So.2d at 502.