author:
YATES, Presiding Judge.
     PITTMAN, Judge,

text:
    Samson ADDY, surviving dependent spouse of Annie Addy; et al., v. PROFESSIONAL BUSINESS OWNERS ASSOCIATION WORKERS’ COMPENSATION FUND and Piknik Products Company, Inc.
    2001030.
    Court of Civil Appeals of Alabama.
    June 7, 2002.

      William P. Traylor III of Yearout, Myers & Traylor, P.C., Birmingham, for appellants.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees.
   YATES, Presiding Judge.

Professional Business Owners Association Workers’ Compensation Fund and Piknik Products Company, Inc. (hereinafter collectively referred to as “Piknik”), sued Samson Addy, as the surviving spouse of Annie Bibb Addy, and their minor children, on July 15, 1996, seeking a judgment declaring whether Annie’s shooting death was a compensable injury, and, therefore, whether Piknik is responsible for the payment of death benefits under the Workers’ Compensation Act. Samson Addy, individually, and on behalf of his minor children (Samson and the children are hereinafter referred to as “the depen-dants”), answered and counterclaimed on December 18, 1996, seeking workers’ compensation death benefits pursuant to §§ 25-5-60 and -61, Ala.Code 1975. On February 29, 2000, the parties jointly moved to submit the case to the trial court on a stipulation of facts and submission of evidentiary materials. On June 1, 2001, the trial court entered an order finding that Annie’s shooting death did not arise out of and in the course of her employment and it denied death benefits to her dependents. The dependents appeal.

This case is governed by the 1992 Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25 — 5—81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

At the time of the shooting on May 28, 1996, Annie had been employed at Pik-nik for six years as a machine operator. She was 31 years old, married, and had three minor children. Addie was shot and killed by Richard Flowers while she was sitting in her car at the Piknik plant during a scheduled break. Flowers confessed to Annie’s murder and was subsequently convicted of the crime. Flowers was a temporary employee assigned to work at Piknik by Teamwork Temporary Services. When Flowers was hired by Teamwork, its president, Abby Fleming, was aware that he had been convicted of manslaughter and that he had recently been released from prison. Flowers had been convicted in 1980 for beating a person to death with a shovel. Fleming testified that Teamwork had made Piknik aware of Flowers’s criminal history and that Flowers himself had also informed Piknik of his criminal history.

Flowers was not on duty on the day of the shooting and had, in fact, not worked for several days preceding the shooting. Flowers had worked the second shift at Piknik with Annie; however, earlier on the afternoon of May 28, he was informed by Eddie Windham, the production supervisor, that he was being transferred to the first shift. Windham testified that Flowers was being transferred to first shift because he needed more supervision and that more management personnel worked on the first shift. The transfer was based on Flowers’s behavior on the second shift. Herb Jordan, Annie and Flowers’s immediate supervisor on the second shift, testified that he had counseled Flowers about his loud and boisterous behavior, his nonprofessional behavior, and his use of profanity. Jordan testified that on one occasion Flowers directed a profanity-laced outburst at Annie. Jordan also testified as to another occasion in which Flowers became loud and directed profanity toward him when he tried to get Flowers to corn-píete an accident report. Windham stated that he told Flowers to return to the plant the next morning to begin work on the first shift and that Flowers agreéd to do so.

After the discussion with Windham, and before the shooting, Flowers was seen in the break room by Robert Taylor, a Piknik employee. Taylor stated that Flowers was “talking and cutting up with” other Piknik employees. Taylor stated that Flowers had told him that he was going to start working the first shift; that he appreciated having a job at Piknik; and that Flowers asked him if he had seen Windham. Taylor stated that he saw Flowers leave the building and that he later saw Annie leave the building through another door.

Albert Love,- another employee at Pik-nik, testified that just minutes before the shooting occurred Flowers told him that “they had put him on first shift” and that he had “no hard feelings with no one.” Love stated that as he and Flowers talked, Annie walked passed and spoke and that they'spoke to her. He stated that Annie left the building at the main entrance and that Flowers headed toward the exit at the maintenance boiler room. Approximately five minutes later, Flowers shot Annie multiple times as she sat in her car in the Piknik parking lot.

This court has stated:

“It is [well] settled that a willful assault by a coemployee may be considered an accident compensable under the Alabama workers’ compensation statute. However, the fact of a willful assault alone does not conclusively establish that the assault arose out of the course of the employee’s employment. That conclusion must be drawn from the circumstances of the case. An assault that is based solely upon personal ill will, hatred, or anger does not arise out of and in the course of the employment. To justify workers’ compensation for injuries caused by an assault by a coem-ployee, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.”

Beverly v. Ruth’s Chris Steak House, 682 So.2d 1360, 1362 (Ala.Civ.App.1996) (citations omitted).

Karen Hardt Branton, the personnel manager at Piknik, gave. a statement to the police indicating that the week preceding the shooting Annie had complained to her about “horseplay” on the second shift and had named Richard Flowers as a participant. Branton also testified in her deposition that Annie had complained to her about people leaving work early on one occasion to attend a party and complained that Jordan, the supervisor on the second shift, demonstrated partiality toward certain employees on that shift. Branton investigated the complaint and notified both Windham and Jordan that a complaint had been made. Jordan was asked to follow up on the complaint with the employees who allegedly left work early but not to use Annie’s name as the person who had made the complaint. In her statement to the police, Branton stated that on the day of the shooting she spoke with Annie and that Annie was upset because Branton had told “everybody in the plant about her complaint.” Branton testified in her affidavit that Annie was afraid to come to work.

Latrice Williams worked on the second shift with both Annie and Flowers. She testified in her affidavit that Flowers had had problems with Annie and that they had argued about work-related issues. She stated that sometimes Flowers would not like.the way Annie was doing her job or operating a machine and he would get upset with Annie. Williams testified that she knew Annie had made a complaint about Flowers and that she heard Flowers state on the day of the shooting that he was “going to get that bitch, Annie [Addy], Ms. Brown and Eddie Windham.”

Detective Derrick Cunningham testified in his deposition that he had taken a statement from Flowers regarding the shooting in which Flowers told him that Annie had complained to management that he was “horseplaying,” “partying,” and “having fun” on the second shift rather than working. Detective Cunningham further stated in his deposition that Flowers had told him that he and Annie had had an argument and that he thought that was the reason he had been transferred to another shift.

It is undisputed that Flowers brutally murdered Annie as she sat helplessly in her automobile while on break at the Pik-nik plant. Annie and Flowers had argued about work-related issues, and Flowers had become upset with Annie. Annie had complained to management about Flowers’s conduct and Flowers knew that Annie had done so. Flowers stated that it was his belief that he was being transferred to the first shift because of an argument that he had had with Annie. Finally, on the day of the shooting Flowers had threatened to “get that bitch Annie [Addy].” After reviewing the record, we conclude that Annie’s dependents presented substantial evidence from which the rational mind could trace Annie’s shooting death to a cause set in motion by her employment.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, J., concurs.

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

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

I conclude that the trial court’s judgment finding that Add/s shooting death was not a work-related injury is supported by substantial evidence; therefore, I dissent.

The dependents and the employer submitted the ease to the trial court on a stipulation of facts (contained in various evidentiary submissions by both parties) and further stipulated that the only issue for the trial court to decide was whether the employee’s death occurred in the line and scope of her employment. As stated above, the trial court held that the employee’s death did not occur in the line and scope of her employment. After reviewing the record, I would adopt the trial court’s finding of facts as follows:

' “On or about May 28, 1996, [the employee] was tragically shot and killed while on her break at the Montgomery plant of Piknik Products Company. Richard Flowers, a temporary employee assigned to work at Piknik by Teamwork Temporary Services, confessed to committing the murder and was subsequently convicted of that crime. Although unknown to Piknik at the time, Flowers had recently been released from prison following a prior conviction for murder after beating a person to death with a shovel. At the time of the shooting Flowers was not on duty at Piknik, and he had been off duty for several days prior because of an injury and a company holiday. Although Flowers previously had worked on the second shift, which was the same shift [the employee] worked, he had been transferred to first shift by the Production Supervisor, Eddie Windham. Flowers was informed of this change earlier in the afternoon of May 28. The transfer was precipitated by a report that" Flowers had gotten into an argument with his supervisor on second shift, Herb Jordan, during which Flowers had used offensive language. Because of this ' incident, Windham decided to move Flowers to [first] shift, where there was more management support. After being informed of the shift change, Flowers was instructed to return to the plant on the morning of the. next day to be'gin working first shift. .Flowers then left the Piknik premises.
“Later that evening, Flowers returned to Piknik. Robert Taylor, Piknik’s Sanitation Supervisor, saw Flowers in the break room, talking and cutting up with Piknik employees. Taylor spoke with Flowers at that time, and Flowers related to Taylor that his shift had been changed and that he would start working first shift the next day. Flowers stated that he appreciated having a job at Piknik. Flowers then asked Taylor if he had seen Eddie Windham. Taylor told Flowers that he had not seen him. At that time, Flowers seemed to be in a good mood and looking forward to starting his shift the next day. Taylor saw Flowers leave the building. He later saw [the employee] leave the building through another exit. Another employee, Albert Love, who was possibly the last person to speak to Flowers prior to the shooting, testified that he had never heard of any problems between [the employee] and Flowers nor had he heard anyone complain about Flowers on the job. Only minutes prior to the shooting Love said that Flowers ‘shook, my hand, gave me five’ and said that he ‘had no beef ... no hard feelings with no one’ and that ‘they put him - on first shift.’ Love stated that Flowers then told him that he was ‘fixing to go’ and, about that time, [the employee] ‘walked up to the ramp and she spoke and we spoke, and he (Flowers) went down the ramp.’ According to Love, Flowers did not follow [the employee] out of the building directly; instead, he went in another direction towards the maintenance boiler room door and she exited through the main entrance. Love did not actually see Flowers exit the building, however, approximately ‘five minutes’ later, Flowers shot [the employee] numerous times while she was seated in her car, on break, in the company parking lot.”

Section 25-5-1(9) defines “injury” as:

“only injury by accident arising, out of and in the course of fhe employment. ... Injury does not include an injury caused by the act of a third person or a fellow employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment.”

This portion of § 25-5-1(9) has been interpreted as follows:

“It is settled that a willful assault by a coemployee may be considered an accident compensable under "the Alabama workers’ compensation statute. However, the fact of a willful assault does not conclusively establish that the assault arose out of the course of the employee’s employment. That conclusion must be drawn from the circumstances of the case. McGaughy v. Allied Products Co., 412 So.2d 803 (Ala.Civ.App.1982). An assault that is based solely upon personal ill will, hatred, or anger does not arise out of and in the course of the employment. Thompson v. Anserall, Inc., 522 So.2d 284 (Ala.Civ.App.1988). To justify workers’ compensation for injuries caused by an assault by a coemployee, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency. Tiger Motor Co. v. Winslett, 278 Ala. 108,176 So.2d 39 (1965).”

Beverly v. Ruth’s Chris Steak House, 682 So.2d 1360, 1362 (Ala.Civ.App.1996).

The dependents argue that they presented evidence that Flowers shot and killed the employee because the employee had reported Flowers’s misconduct on the job to their supervisor, who then moved Flowers from the second shift to the first shift. The employer filed a motion to strike several evidentiary submissions submitted by the dependents which the employer contended contained hearsay about the employee’s role in having Flowers moved from the second shift to the first shift. The trial court did not explicitly grant the motion to strike; however, in its judgment holding that the employee’s shooting death was not in the line and course of her employment, the trial court did state:

“[The dependents] attempt to establish a potential causal connection by referencing certain statements that constitute hearsay, hearsay within hearsay, or which reflect speculation and lack of personal knowledge. This Court finds that such statements are not admissible, credible evidence. Morever, this Court further finds that, even if admissible, such statements would not support a finding that [the employee’s] employment set in motion the proximate cause that resulted in [the employee’s] tragic death.”

As shown above, the trial court disregarded the evidence that the dependents sought to admit which attempted to causally relate the shooting with the employee’s employment. I conclude that the trial court did not err by disregarding that evidence. The dependents do not argue on appeal that the trial court erred by stating that the evidence was inadmissible hearsay. Therefore, I would affirm the trial court’s judgment.

      . This case was originally assigned to another judge on this court; it was reassigned to Presiding Judge Yates on May 7, 2002.

      . The evidence is disputed as to why Flowers had not been at work for several days preceding the shooting. Fleming testified that she had terminated Flowers from Teamwork Temporary for insubordination to his supervisor at Piknik and that Piknik had asked that Flowers not be sent back to work there. A note entered in the Teamwork Temporary files on Flowers indicates that he had been terminated, but allowed to return to work on a different shift. Karen Hardt Branton, the personnel manager at Piknik, stated in her affidavit that Flowers had been absent from work because of an injury he had suffered and a company holiday.

      . This testimony is admissible under Rule 803(3), Ala. R. Evid., to show Flowers’s then existing stale of mind, such as intent, plan, or motive.


source: Caselaw Access Project

author: STUART, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte PROFESSIONAL BUSINESS OWNERS ASSOCIATION WORKERS’ COMPENSATION FUND and Piknik Products Company, Inc. (In re: Samson Addy, surviving dependent spouse of Annie Addy; et al. v. Professional Business Owners Association Workers’ Compensation Fund and Piknik Products Company, Inc.)
    1011786.
    Supreme Court of Alabama.
    April 25, 2003.

      Joseph H. Driver and Bennett L. Pugh of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioners.
    William P. Traylor III and M. Stan Herring of Yearout & Traylor, P.C., Birmingham, for respondents.
   STUART, Justice.

This appeal arises from the death of Annie Bibb Addy. Annie Addy was an employee at Piknik Products Company, Inc. (“Piknik”), when she was murdered by a coworker, Richard Flowers. Professional Business Owners Association Workers’ Compensation Fund (“Professional”) and Piknik, which was subsequently dismissed from the action, brought the original claim in this action seeking a judgment declaring whether Annie Addy’s death was work related. Professional and Piknik asserted that Annie Addy’s death was not work related and therefore was not compensable under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975.

The record contains numerous affidavits, police statements, deposition testimony, and criminal trial testimony by various Piknik employees. Professional and Pik-nik filed a motion for a summary judgment and a motion to strike certain testimony on the ground that it was hearsay. The trial court denied the motion for a summary judgment as to Professional and dismissed Piknik as a defendant. Professional then filed a second motion for a summary judgment, which the trial court also denied. After a mistrial, Professional and Samson Addy, Annie Addy’s surviving spouse, filed a joint motion to submit the case to the trial court based upon stipulated facts and the evidentiary materials previously submitted to the trial court.

Professional and Samson Addy stipulated that the sole issue before the trial court was whether Annie Addy’s death was compensable under the Workers’ Compensation Act. They also stipulated that there were no disputed questions of fact and that the single remaining issue was a question of law. Professional resubmitted its second motion for a summary judgment and Samson Addy resubmitted his response to Professional’s second summary-judgment motion. Professional also resubmitted its motion to strike certain testimony as hearsay and Samson Addy resubmitted his response to the motion to strike. The evidence in support of the two motions incorporated the entire record from the first trial. The parties further stipulated to the admissibility of the deposition testimony of specific witnesses. The trial court, without entering a detailed ruling, either oral or written, on the resubmitted motion to strike, issued an order finding that Annie Addy’s death was not work related. In regard to the testimony Professional sought to exclude on hearsay grounds, the trial court stated: “Respondent[ ] attempts] to establish a potential causal connection by referencing certain statements that constitute hearsay, hearsay within hearsay, or which reflect speculation and lack of personal knowledge. This Court finds that such statements are not admissible, credible evidence.” (Emphasis added.) Samson Addy appealed to the Court of Civil Appeals. Relying on facts in the record in addition to the trial court’s findings, the Court of Civil Appeals reversed the trial court’s judgment, holding that Annie Addy’s death was not work related. Addy v. Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1093 (Ala.Civ.App.2002). Professional petitioned this Court for a writ of certiorari, which we granted. We reverse the judgment of the Court of Civil Appeals because the holding of that court relied upon inadmissible evidence.

Issue and Analysis

The sole issue before this Court is whether in reversing the judgment of the trial court the Court of Civil Appeals improperly considered and relied upon evidence the trial court had determined was inadmissible. We specifically do not address whether that evidence was or was not admissible because Samson Addy did not raise this issue on appeal.

Generally, an appellate court is limited to considering only those issues raised on appeal. Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.1993). The failure to raise an issue on appeal is the equivalent of waiving the issue. 628 So.2d at 462. Samson Addy did not raise in his appeal to the Court of Civil Appeals the issue of the admissibility of that evidence the trial court did not include in its findings of fact. That issue was therefore waived, and it was not properly before the Court of Civil Appeals. He has likewise not raised that issue before this Court.

In a workers’ compensation case, the Court of Civil Appeals reviews the “standard of .proof ... and other legal issues without a presumption of correctness.” § 25 — 5—81(e)(1), Ala.Code 1975. A trial court’s judgment in a workers’ compensation case based on pure findings of fact will not be reversed if.it is supported by substantial evidence. § 25 — 5—81(e)(2), Ala. Code.. 1975. Substantial evidence is “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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also Ex parte Trinity Indus. Inc., 680 So.2d 262, 269 (Ala.1996); Ceasco, Inc. v. Byrom, [Ms. 2010541, Nov. 15, 2002] - So.2d - (Ala Civ.App.2002). Therefore, in such a case the appellate court must view the facts in the light most favorable to the findings of the trial court. Ceasco; Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds by Ex parte Trinity Indus., supra.

As previously noted, when Professional submitted its case to the trial court after the first trial had ended in a mistrial, Professional resubmitted its motion to strike certain testimony on hearsay grounds. The record is not; clear as to what evidence the trial court held to .be inadmissible on that basis. However, the trial court did provide findings of fact in its order, and it stated that evidence that constituted hearsay and speculation was not admissible. Comparing the statements Professional sought to strike with the facts as determined by the trial court, we conclude that the trial court held admissible only the evidence it incorporated into its findings of fact.

The trial court’s judgment shall not be reversed if its findings of fact are supported by substantial evidence. The trial court excluded from its findings specific testimony that it found to be inadmissible hearsay. While the trial court did not specifically state which testimony was hearsay, the fact that it excluded certain testimony from its findings of fact is evidence of the inadmissibility of the testimony. Because in a workers’ compensation case we must view the facts in the light most favorable to the findings of the trial court, we conclude that the trial court’s findings of fact included all admissible evidence and that they excluded all inadmissible hearsay. Additionally, the trial court’s findings of fact are supported by substantial evidence.

The main opinion of the Court of Civil Appeals includes and relies upon facts and testimony from the record the trial court, by its intentional exclusion of the testimony from its findings of fact, found inadmissible. It was improper for the main opinion of the Court of Civil Appeals to consider, and to base its opinion upon, evidence the trial court determined was inadmissible, when Samson Addy failed to assert as error on appeal the inadmissibility of the evidence. Therefore, we conclude that it was error to consider evidence excluded by the trial court and not properly before the Court of Civil Appeals.

Conclusion

For the foregoing reasons, we reverse the judgment of the Court of Civil Appeals and remand this case with directions that the Court of Civil Appeals affirm the judgment of the trial court.

REVERSED AND REMANDED WITH DIRECTIONS.

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

WOODALL, J., concurs in the result.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent for two reasons. First, the standard of review applied by the main opinion is not applicable to this particular case in that the judgment of the trial court is not based on ore tenus evidence but is, rather, based on the parties’ stipulation of facts and submission of written evidentiary materials.

“When the trial court receives ore ten-us evidence in a workers’ compensation action, its findings of fact based on that testimony are entitled to a presumption of correctness on appeal, and will not be disturbed on appeal absent a determination that those findings are unsupported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Hoivever, when the trial court hears no oral testimony, and the evidence presented to the trial court consists of stipulations, depositions, and exhibits, the ore tenus rule does not apply. McGhee v. International Paper Co., 729 So.2d 880 (Ala.Civ.App.1999). Further, pursuant to § 25-5-81(e)(l), Ala.Code 1975, this court’s review of the trial court’s judgment with respect to the undisputed facts and with regard to purely legal issues is afforded no presumption of correctness on appeal. § 25-5-81(e)(l), Ala.Code 1975; McGhee, supra.

Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002). Accord McGhee v. International Paper Co., 729 So.2d 880 (Ala.Civ.App.1999).

Second, this Court infers too much from the statement in the trial court order to the effect that “certain statements [in the respondents’ submissions] that constitute hearsay, hearsay within hearsay, or which reflect speculation and lack of personal knowledge,” “are not admissible, credible evidence.” This Court cannot rightly infer from this- statement that the trial court held that all of the respondents’ evidence not recited in the order was inadmissible on these grounds.

While some of the evidence may consist of an affiant’s or deponent’s account of the out-of-court declarations of another person, much of such evidence is obviously permitted by Rules 801 through 805 of the Alabama Rules of Evidence. The order of the trial court does not find or hold otherwise.

The record contains ample evidence that supports the conclusions of the Court of Civil Appeals and that does not incur any of the exclusionary rules cited by the trial court. The Court of Civil Appeals correctly concluded that the trial court should have found that Flowers murdered Annie because she had complained to his superior about his job performance in their mutual employment with Piknik.

      . The respondent in Piknik and Professional's declaratory-judgment action was Samson Addy, the surviving spouse of Annie Bibb Addy, and Samson's and Annie's minor children.

      . The parties stipulated that the depositions of the following individuals were admissible: James Edward Windham, Karen Hardt Bran-ton, Albert Love, Herb Jordan, Tina Brough-ton, Thomas Scofield, Derrick Cunningham, Abby Walker Fleming, and Charles R. Caraway.


author: YATES, Presiding Judge.

text:
    Samson ADDY, surviving dependent spouse of Annie Addy; et al. v. PROFESSIONAL BUSINESS OWNERS ASSOCIATION WORKERS’ COMPENSATION FUND and Piknik Products Company, Inc.
    2001030.
    Court of Civil Appeals of Alabama.
    June 13, 2003.

      William P. Traylor III of Yearout, Myers & Traylor, P.C., Birmingham, for appellants.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees.
   After Remand from the Alabama Supreme Court

YATES, Presiding Judge.

The Alabama Supreme Court has reversed this court’s judgment of June 7, 2002, and has remanded the case. Ex parte Professional Bus. Oumers Ass’n Workers’ Compensation Fund, 867 So.2d 1099 (Ala.2003). In accordance with the Alabama Supreme Court’s opinion, the judgment of the trial court is affirmed.

AFFIRMED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    MOUNTAIN HEATING AND COOLING, INC. v. VAN TASSEL-PROCTOR, INC.
    2010333.
    Court of Civil Appeals of Alabama.
    June 14, 2002.

      Jim H. Fernandez of Fernandez, Ollinger & Combs, Mobile, for appellant.
    Susan S. Wagner and D. Keith Andress of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham; and Edward C. Greene of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellee.
   PITTMAN, Judge.

Mountain Heating and Cooling, Inc. (“MHC”), appeals the trial court’s judgment granting Van Tassel-Proctor, Inc.’s (“Van Tassel”), motion to compel arbitration. The Supreme Court of Alabama transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

Rule 4(d), Ala. R.App. P., adopted effective October 1, 2001, provides that both the denial and the grant of a motion to compel arbitration is to be reviewed by appeal. Before the adoption of Rule 4(d), the grant of a motion to compel arbitration was to be reviewed by a petition for a writ of mandamus. MHC filed its notice of appeal on October 1, 2001; therefore, the trial court’s judgment granting the motion to compel arbitration is to be reviewed by appeal.

“[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). “A motion to compel arbitration is analogous to a motion for a summary judgment.” TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). “The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.” Id.‘[A]fter a motion to compel arbitration, has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing) (emphasis omitted).

MHC argues that it did not agree to arbitrate its claims against Van Tassel. The contract signed by MHC and Van Tassel contains paragraph 22(B), which states, in pertinent part:

“And if said dispute can not [sic] be settled through direct discussions the parties agree to settle the dispute by arbitration under the ‘Construction Industry Mediation Rules of the American Arbitration Association.’ ”

Paragraph 22(B) originally contained the following statement, which was capitalized and in bold typeface:

“In the event of any litigation arising hereunder, [Van Tassel] and [MHC] unconditionally and absolutely waive any and all rights to trial by jury.”

MHC and Van Tassel agreed to strike this statement from the contract.

MHC argues that paragraph 22(B) as written does not constitute an agreement to arbitrate. MHC first argues that its striking of the statement waiving the right to a jury trial makes the remaining portion of the paragraph an invalid arbitration provision. MHC apparently argues that in order for an arbitration agreement to be enforceable, the agreement must contain a statement waiving the right to a jury trial. We disagree.

Our supreme court has stated that “signing an agreement providing that all disputes are' to be resolved exclusively through arbitration is equivalent to waiving one’s right to a trial by jury.” Thermo-Sav, Inc. v. Bozeman, 782 So.2d 241, 243 (Ala.2000). However, no Alabama case has held that a valid arbitration agreement must contain an express waiver of the- right to a jury trial. The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), likewise imposes no such requirement. Therefore, we conclude that an express waiver of the right to a jury trial is not required for a valid arbitration provision.

MHC further argues that the arbitration provision of paragraph 22(B) is ambiguous because it refers to the “Construction Industry Mediation Rules of the American Arbitration Association” (emphasis added). MHC argues that the word “Mediation” creates an ambiguity as to whether it agreed to mediation or to arbitration. Van Tassel concedes that this phrase is a typographical error in the contract and should state, “Construction Industry Arbitration and Mediation Rules of the American Arbitration Association”' (emphasis added). Van Tassel contends that the typographical error does not create an ambiguity in the contract.

Contracts providing for arbitration are interpreted like, other contracts and “cannot be singled out and subjected to rules of construction that are different from, or more stringent than, the rules of construction applied to contracts generally.” Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 564, 570 (Ala.1999), citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). To determine whether a contract is ambiguous, the court is guided by the intent of the parties, which is indicated by the plain language of the contract.- Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102 (Ala.1995). We conclude that the contract unambiguously provides for arbitration, regardless -of the use in the contract of the word “Mediation.” Paragraph 22(B) is entitled “Arbitration,” and the rules of the “American Arbitration Association” govern a dispute. Therefore, we conclude that the paragraph 22(B) is unambiguously an arbitration provision.

MHC also argues that Van Tassel- is precluded from enforcing the arbitration provision because it “substantially invoked the litigation process.” Van Tassel is the contractor for Carmike Cinemas for a theater being constructed in Mobile. MHC is one of Van Tassel’s subcontractors on the construction project.. As stated above, Van Tassel filed a successful motion to compel arbitration against MHC. Van Tassel has also sued Carmike in Mobile Circuit Court. MHC argues that Van Tassel’s election to proceed judicially against Carmike is inconsistent with its election to compel arbitration against MHC.

Our supreme court has stated:

“It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to- abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”

Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995).

Van Tassel’s disputes with Carmike and MHC do arise from the same construction project; however, the disputes are distinct. We will not require Van Tassel to be limited either to proceed judicially with its primary customer Carmike and all of its subcontractors or to proceed with arbitration with Carmike and its subcontractors. Van Tassel’s choice to proceed judicially against Carraike does not prejudice MHC. Therefore, we conclude that Van Tassel’s choice to proceed judicially against Car-mike is not a waiver of its right to compel arbitration against MHC.

MHC further argues that the contract does not involve interstate commerce; therefore, MHC contends, the arbitration provision cannot be enforced. In order for an arbitration provision to be enforceable, it must “substantially affect interstate commerce.” Sisters of Visitation v. Cochran Plastering Co., 775 So.2d 759, 767 (Ala.2000). The court in Sisters of Visitation held that the contract in that case involving two Alabama residents and performance in Alabama did not “substantially affect” interstate commerce. Id. The supreme court distinguished Sisters of Visitation in Ballard Services, Inc. v. Conner, 807 So.2d 519 (Ala.2001), and concluded that the contract in that case did “substantially affect” interstate commerce due to the diverse citizenship of the parties, materials essential to the contract coming from out of state, and negotiations with other out-of-state parties. See generally, 807 So.2d at 521-23.

This case is similar to Ballard. MHC is an Alabama corporation with its principal place of business in Alabama and Van Tassel is an Arkansas corporation with its principal place of business in Arkansas. Carmike is a Georgia corporation. Van Tassel also presented evidence that the contract involved large interstate shipments of materials and supplies. Therefore, we conclude that the contract “substantially affects” interstate commerce and that the arbitration provision is enforceable.

MHC lastly argues that because the contract contains a provision providing for the application of Alabama law, the arbitration provision is not enforceable. We disagree. Our supreme court has stated that a contract that is governed by Alabama law does not affect the enforceability of an arbitration provision. See Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 747 n. 9 (Ala.2000) (stating that a contract governed by Alabama law and that contains an arbitration provision is not “inconsistent” or “ambiguous”).

None of the arguments advanced by MHC on appeal persuade us that the arbitration provision is unenforceable. Therefore, we affirm the trial court’s judgment compelling arbitration.

AFFIRMED.

CRAWLEY, J., concurs.

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

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

The contract at issue in this case provided, in pertinent part:

“22) LAWS, DISPUTES, ATTORNEYS’ FEES:
“A) APPLICABLE LAW: This Agreement is entered into in Mobile, Alabama and shall be construed and governed by the laws of the State of Alabama. Subcontractor shall comply with all laws (federal, state, and local), licensing requirements, statutes, ordinances, rules and regulations of any governmental entity having jurisdiction, and Subcontractor shall indemnify and hold harmless Owner and Contractor from any fines, penalties, costs or liability arising from Subcontractor’s failure to comply therewith.
“B) ARBITRATION: Subcontractor agrees that all questions arising under this Subcontract shall be resolved in the first instance by Contractor’s Project Manager. No claim for additional compensation or extension of time shall be considered unless presented to Contractor’s Project Manager in writing within seven (7) days after the occurrence giving rise to the dispute. Any claim not satisfactorily resolved by Contractor’s Project Manager in the first instance, and which is presented in-writing within the time provided, may be appealed by notice in writing, to, a) the Contractor’s Project Manager within seven (7) days after the Contractor’s project manager’s initial decision, b) to the ArchitecUEngi-neer for the Project if the issue is in the interpretation of the drawings or specifications, in which event the Architect/Engineer’s decision shall be final, or c) to an Executive Officer of the Contractor if any other question under the Subcontract is involved. Such written notice and review shall be [a] prerequisite to any further review or any legal action by Subcontractor against the Contractor, Architect, and/or Owner. And if said dispute can not be settled through direct discussions the parties agree to settle the dispute by arbitration under the ‘Construction Industry Mediation Rules of the American Arbitration Association.’ Subcontractor agrees that it will reimburse hold harmless and/or indemnify any attorney’s fees and costs incurred by Contractor in connection with any dispute related to this Contract, whether or not suit is filed.”

(Emphasis added.)

Mountain Heating and Cooling, Inc. (“MHC”), argues that the agreement is ambiguous because it is unclear whether the parties were agreeing to arbitrate or to mediate disputes arising out of the contract. Van Tassel-Proctor, Inc., argues that the following language is the operative language: “the parties agree to settle the dispute by arbitration”-, therefore, it argues, the plain language of the clause cannot be read as providing for anything other than arbitration.

The Alabama Supreme Court and this court have addressed cases involving contracts in which the parties had agreed to “arbitrate ” pursuant to the “Construction Industry Arbitration Rules of the American Arbitration Association.” In each of those cases, the parties expressly agreed to arbitrate under the “Construction Industry Arbitration Rules of the American Arbitration Association.” See F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607 (Ala.2001); Ex parte Messer, 797 So.2d 1079 (Ala.2001); Beaver Constr. Co. v. Bakehouse, L.L.C., 742 So.2d 159 (Ala.1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975 (Ala.1998); Robert Frank McAlpine Architecture, Inc. .v. Heilpern, 712 So.2d 738 (Ala.1998); Ex parte Stallings & Sons, Inc., 670 So.2d 861 (Ala.1995); Maxus, Inc. v. Sciacca, 598 So.2d 1376 (Ala.1992); Ex parte Williams, 591 So.2d 71 (Ala.1991); H.L. Fuller Constr. Co. v. Industrial Dev. Bd. of Vincent, 590 So.2d 218 (Ala.1991); Roscoe v. Jones, 571 So.2d 1043 (Ala.1990); and McKee v. Hendrix, 816 So.2d 30 (Ala.Civ.App.2001).

Other jurisdictions have decided cases in which the parties agreed to “mediate” pursuant to the “Construction Industry Mediation Rules of the American Arbitration Association.” Watkins Eng’rs & Constructors, Inc. v. Deutz, AG (Ms. CIV. A.3:01CV1147-M, December 3, 2001) (N.D.Tex.2001)(not published in F.Supp.); W & S Erectors, Inc. v. Metropolitan Steel Indus. (Ms. CV-99-8094, April 27, 2000) (E.D.N.Y.2000)(not published.in F.Supp.); H.L. Libby Corp. v. Skelly & Loy, Inc., 910 F.Supp. 195 (M.D.Penn.1995); and K.P. Meiring Constr., Inc. v. Northbay I & E, Inc., 761 So.2d 1221 (Fla.Dist.Ct.App. 2000).

Our supreme court has held:

“Questions of arbitrability — that is, whether the parties agreed to submit their particular dispute to arbitration— ‘must be addressed with a healthy regard for the federal policy favoring arbitration.’ [Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,] at 24 [(1983) ], ...; but, in determining whether the parties agreed to arbitrate a dispute, this Court ‘should apply ordinary state-law principles that govern the formation of contracts.’ First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); accord Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167-68 (Ala.1999). Consequently, ‘in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [Federal Arbitration] Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.’ Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (citations omitted).
“However, the federal policy favoring arbitration does not require this Court to ignore the contractual intentions of the parties. See Volt Information Sciences, Inc., 489 U.S. at 478-79, 109 S.Ct. 1248; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Instead, ‘[t]his Court has clearly and consistently held that a party cannot be required to submit to arbitration any dispute he has not agreed to submit.’ Ex parte Stallings & Sons, Inc., 670 So.2d 861, 862 (Ala.1995)(internal quotation marks and citations omitted); accord AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648,106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). The [Federal Arbitration Act] ‘simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms,’ and ‘parties are generally free to structure their arbitration agreements as they see fit.’ Volt Information Sciences, Inc., 489 U.S. at 478-79,109 S.Ct. 1248. Accordingly, ‘as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.’ Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. See Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993). Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998). If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. See id. at 36; Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity. See Whitson, 703 So.2d at 948. Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms. See id. at 948-49; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). Additionally, ‘if there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed.’ City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So.2d 917, 924 (1968); see Whitson, 703 So.2d at 949. Last, if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferen-tem, any ambiguity must be construed against the drafter of the contract. See Lackey v. Central Bank of the South, 710 So.2d 419, 422 (Ala.1998).”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745-46 (Ala.2000).

While the American Arbitration Association (“AAA”) combined its Construction Industry Mediation Rules and its Arbitration Rules into a single brochure for convenience, the two sets of rules are separate and distinct. Rules M-l through M-17 set out the procedures for cases being mediated while Rules R-l through R-57 set out the procedures for cases involved in arbitration. The main opinion appears to argue that the fact that the agency charged with regulating the disputes is the “American Arbitration Association” lends support to the argument that the parties agreed to arbitrate; I disagree. The AAA states in its brochure that it provides a “broad range of dispute resolution services” including mediation and arbitration.

The “Construction Industry Mediation Rules of the American Arbitration Association” referred to in the contract as controlling are the AAA’s rules for nonbinding mediation, a procedure that does not require the parties to waive the right to trial by jury. I believe that the language in the agreement requiring the parties to' arbitrate pursuant to the “Construction Industry Mediation Rules” creates an ambiguity. That is, the agreement is susceptible to more than one reasonable interpretation.

I note that in Alabama, the supreme court has decided cases where the parties have agreed to mediation as a condition precedent to binding arbitration. See Homes of Legend, supra. In other cases, the parties have agreed to mediation and, if the claim is not resolved, to nonbinding arbitration or binding arbitration — depending upon what the parties have agreed to — and possibly to other mutually agreeable alternative dispute resolution. See Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998). Still other parties have agreed to binding arbitration, but allow one of the parties the option of litigation if that party so chooses. See Green Tree Financial Corp. v. Wampler, 749 So.2d 409 (Ala.1999).

Had Van Tassel-Proctor wished to mediate under the “Construction Industry Mediation Rules of the American Arbitration Association,” and then if the dispute was not settled, to require binding arbitration under the “Construction Industry Arbitration Rules of the American Arbitration Association,” it could have so provided in the contract. See, e.g., W & S Erectors, Inc., supra (not published); K.P. Meiring Constr., Inc., supra, 761 So.2d 1221. Instead, Van Tassel-Proctor presented MHC with a preprinted contract. The parties then struck through “Little Rock, Arkansas” and “Arkansas” in two places on the contract and substituted the words “Mobile, Alabama” and “Alabama,” respectively. The parties also agreed to strike the following sentence “IN THE EVENT OF ANY LITIGATION ARISING HEREUNDER, THE CONTRACTOR AND SUBCONTRACTOR UNCONDITIONALLY AND ABSOLUTELY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY.” (Capitalization in original.) The terms the parties eventually agreed to regarding how disputes would be settled are ambiguous; therefore, I must dissent.

      . The AAA's brochure states: "Because of the increasing popularity of mediation, especially as a prelude to arbitration, the Association has combined its mediation and arbitration rules into á single brochure."


author: PER CURIAM. SEE, Justice

text:
    Ex parte MOUNTAIN HEATING AND COOLING, INC. (In re Mountain Heating and Cooling, Inc. v. Van Tassel-Proctor, Inc.)
    1011835.
    Supreme Court of Alabama.
    May 2, 2003.

      Jim H. Fernandez of Fernandez, Holtz & Combs, LLC, Mobile, for petitioner. Submitted on petitioner’s brief only.
   PER CURIAM.

Mountain Heating and Cooling, Inc. (“MHC”), petitioned for a writ of certiorari to review the Court of Civil Appeals’ affir-mance of the trial court’s order compelling arbitration in its contract action against Van Tassel-Proctor, Inc. (“VTP”). We granted the petition to determine if certain ambiguities in the contract cast doubt on whether the parties agreed to arbitrate their disputes. We reverse and remand.

I. Facts

VTP, an Arkansas corporation, is the primary contractor for a Carmike Cinema construction project located at Springdale Mall in Mobile, Alabama. VTP contracted with MHC, a subcontractor, to do the heating, ventilation, and air conditioning work for the project. MHC is an Alabama corporation. The contract signed by the parties contained an arbitration provision that states, in pertinent part:

“B) ARBITRATION: Subcontractor [MHC] agrees that all questions arising under this Subcontract shall be resolved in the first instance by Contractor’s [VTP’s] Project Manager.... Any claim not satisfactorily resolved by Contractor’s Project Manager in the first instance, and which is presented in writing within the time provided, may be appealed by notice in writing to ... an Executive Officer of the Contractor if any other question under the Subcontract is involved. Such written notice and review shall be prerequisite to any further review or any legal action by the Subcontractor against the Contractor, Architect, and/or Owner. And if said dispute cannot be settled through direct discussions the parties agree to settle the dispute by arbitration under the Construction Industry Mediation Rules of the American Arbitration Association. Subcontractor agrees that it will reimburse, hold harmless and/or indemnify any attorney’s fees and costs incurred by Contractor in connection with any dispute related to this contract, whether or not suit is filed. IN THE EVENT OF ANY LITIGATION ARISING HEREUNDER, THE CONTRACTOR AND SUBCONTRACTOR UNCONDITIONALLY AND ABSOLUTELY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY.”

(Emphasis added; capitalization in original.)

The parties struck through the last sentence, and Ted Van Tassel, president of VTP, and Paul James, president of MHC, initialed the change in the margin adjacent to that sentence, signifying agreement to the change at the time the contract was executed. VTP does not dispute that the sentence waiving the right to a jury trial was struck from the contract.

MHC was not paid the final draw under its subcontract; it sued VTP to recover that amount. MHC filed a motion for a summary judgment based upon the contract. VTP then filed a motion to compel arbitration based upon the contract; it supported the motion with an affidavit by Van Tassel, detailing the substantial effect the transaction had on interstate commerce. MHC filed a response to the motion, including an affidavit from James. On August 31, 2001, the trial court entered an order compelling arbitration; it also found MHC’s summary-judgment motion to be moot.

MHC originally appealed directly to this Court, but we transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975. The Court of Civil Appeals affirmed the circuit court’s order granting VTP’s motion to compel arbitration. Mountain Heating & Cooling, Inc. v. Van Tassel-Proctor, Inc., 867 So.2d 1104 (Ala.Civ.App.2002). MHC then petitioned this Court for certiorari review. We granted the petition to determine whether the contract evinces an intention by both parties to arbitrate their disputes.

II. Standard of Review

“[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). “The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction [substantially] affecting interstate commerce.” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). “ ‘[Ajfter a motion . to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ” Fleetwood Enters., Inc., 784 So.2d at 280 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)) (emphasis omitted).

III. Analysis

MHC argues that certain language included in the arbitration provision of its contract with VTP and language omitted from thát contract show that it did not agree to arbitrate its claims against VTP. “This Court has clearly and consistently held that ‘ “a party cannot be required to submit to arbitration any- dispute he has not agreed to submit.” ’ ” Ex parte Stallings & Sons, Inc., 670 So.2d 861, 862 (Ala.1995) (quoting Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Ala.1994), quoting in turn A.G. Edwards .& Sons, Inc. v. Clark, 558 So.2d 358, 362 (Ala.1990)).

“ ‘If there is doubt as to whether such an agreement [to arbitrate] exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.’ ”

Allstar Homes, Inc. v. Waters, 711 So.2d 924, 929 (Ala.1997) (overruled on other grounds by Ex parte Perry, 744 So.2d 859 (Ala.1999), quoting Shearson Lehman Bros. v. Crisp, 646 So.2d 613, 616 (Ala. 1994));. see, .e.g., Ex parte Roberson, 749 So.2d at 445. “Whether a contract is ambiguous is a question, of law for the trial court to determine.” Underwood v. South Central Bell Tel. Co., 590 So.2d 170, 175 (Ala.1991).

“In interpreting a contract, the ‘ “words of the agreement will be given their ordinary meaning.” ’ Hibbett Sporting Goods, Inc. v. Biembaum, 391 So.2d 1027,1029 (Ala.1980) (quoting Flowers v. Flowers, 334 So.2d 856, 857 (Ala.1976)). An ‘instrument N unambiguous if only one reasonable meaning clearly emerges.’ Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990); see also Flowers, 334 So.2d at 857. ‘If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court.... However, if the terms within the contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact to be resolved by a jury.’ McDonald v. U.S. Die Casting & Devel opment Co., 585 So.2d 853, 855 (Ala.1991) (citations omitted).”

Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186-87 (Ala.1992).

MHC argues that the contract as a whole, and the arbitration provision in particular, when examined closely, are ambiguous as to whether the parties agreed to arbitrate disputes. The most glaring instance of ambiguity in the arbitration provision is the statement that “the parties agree to settle the dispute by arbitration under the Construction Industry Mediation Rules of the American Arbitration Association.” (Emphasis added.) The American Arbitration Association (“the AAA”) has both “Construction Industry Arbitration Rules” and “Construction Industry Mediation Rules.” Arbitration and mediation are separate and distinct methods of resolving disputes under the AAA rules. Presiding Judge Yates, in her dissent to the Court of Civil Appeals’ opinion, correctly notes that the Construction Industry Mediation Rules provide a form of nonbinding mediation in which the parties are not required to waive their rights to trial by jury. 867 So.2d at 1111.

VTP offers an explanation for the curious wording of the arbitration provision. According to VTP, the word “mediation” in the title “Construction Industry Mediation Rules” is a typographical error; it should have read “Construction Industry Arbitration Rules.” The Court of Civil Appeals agreed that the use of the word “mediation” in the title is merely a typographical error. However, nothing in the record indicates that VTP offered this explanation to the trial court, nor is there any evidence in the record to support a finding that the use of the word “mediation” in the title is a typographical error. In Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975), this Court held that there must be support in the record for a claim before an appellate court can consider the claim. Thus, without support, we cannot consider the suggestion that the use of the word “mediation” in the title of the rules is a typographical error. VTP’s suggestion that it is a typographical error highlights the ambiguity of the arbitration provision.

It is also curious that this sentence includes the statement that “the parties agree to settle the dispute by arbitration .... ” (Emphasis added.) MHC notes that typically a settlement occurs through mediation, whereas a decision is imposed as a result of arbitration. In the context of that statement, the word “settle” perhaps simply means “resolve,” i.e., “the parties agree to [resolve] the dispute by arbitration,” rather than a meaning encompassed within the legal definition of the word “settle.” To resolve the dispute by arbitration makes sense, but to settle, in the legal sense, a dispute by arbitration is a contradiction of terms. Given the confusion already present in this passage, it would be unwise for this Court to venture a guess as to which meaning the parties intended. This wording again raises an ambiguity because the passage is susceptible to two readings. See, e.g, Reeves Cedarhurst Dev. Corp., supra.

MHC further points out that the parties struck the following sentence from the arbitration provision: “In the event of any litigation arising hereunder, the contractor and subcontractor unconditionally and absolutely waive any and all rights to trial by jury.” This Court has held previously that “[i]t goes without saying that signing an agreement providing that all disputes are to be resolved exclusively through arbitration is equivalent to waiving one’s right to a trial by jury.” Thermo-Sav, Inc. v. Bozeman, 782 So.2d 241, 243 (Ala.2000). Thus, a jury-waiver clause is not necessary in an arbitration provision. By implication then, the act of striking that clause does not alone call into question whether the parties agreed to arbitrate disputes.

However, while the strike-through of the jury-waiver clause does not create sufficient ambiguity to warrant a jury trial on the issue of arbitrability, in the context of this contract it raise questions as to the intent of these parties regarding arbitration. The most obvious question is: why would the parties bother striking the jury-waiver sentence if they had agreed to arbitrate disputes anyway? Signing an arbitration contract is the equivalent of waiving one’s right to a jury trial, see Bozeman, supra; 'therefore, it would appear that there would have been no objection to a sentence that further clarified that the parties were not to seek redress in court. Yet the sentence is one of the few passages in the contract that MHC president Paul James specifically crossed out and that both signatories agreed would not apply. Indeed, in his affidavit submitted in opposition to VTP’s motion to compel arbitration, James states that he struck “from Paragraph 22 [the ‘applicable law and arbitration provision] all language I believed compelled me to arbitrate issues or waive my right to a court trial. It is my habit, when negotiating contracts on behalf of [MHC] not to agree to arbitrate issues.” The striking of this language indicates, though it does not prove, that MHC did not intend to agree to arbitrate its disputes with VTP.

A change in another portion of the contract between VTP and MHC indicates that MHC did not intend to settle disputes by arbitration. “Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (emphasis added.) The arbitration provision is subparagraph B of paragraph 22 of the contract, which is entitled “LAWS, DISPUTES, ATTORNEYS’ FEES.” Subparagraph A of paragraph 22 deals with the choice of law that is to govern the contract. As was. mentioned above, James stated in his affidavit that he changed “all language” in paragraph 22 that he believed forced MHC to arbitrate disputes. Originally, subpara-graph A stated, in pertinent part: “A) APPLICABLE LAW: This Agreement is entered into in Little Rock, Arkansas and shall be construed and governed by the laws of the State of Arkansas.” However, James modified subparagraph A to read: “This Agreement is entered into in Mobile, Alabama and shall be construed and governed by the laws of the State of Alabama.” (Emphasis added.) Van Tassel agreed to and initialed this change, just as he did the striking of the jury-waiver sentence in the arbitration provision in sub-paragraph B.

In Arkansas, “arbitration is ‘strongly favored.’ ” Hart v. McChristian, 344 Ark. 656, 662, 42 S.W.3d 552, 556 (2001) (quoting Anthony v. Kaplan, 324 Ark. 52, 57, 918 S.W.2d 174, 177 (1996)). Conversely, Alabama statutory law disfavors predispute arbitration unless the contract evinces a substantial effect on interstate commerce, so that federal law would govern. See § 8-1-41(3), Ala.Code 1975; Ex parte Messer, 797 So.2d 1079, 1082 (Ala.2001). Thus, the modification of the choice-of-law provision from Arkansas to Alabama, when read in conjunction with the striking of the jury-waiver sentence in subparagraph B of paragraph 22 and James’s testimony, provides good reason to question whether arbitration was the parties’ selected method of resolving disputes under this contract.

When all of the modifications and ambiguities in the contract are considered together, we agree with MHC that there is a question regarding arbitrability that warrants a jury determination on the issue. As Allstar Homes stated, “ ‘[i]f there is doubt as to whether [an agreement to arbitrate] exists, the matter, upon a proper and timely demand, should be submitted to a jury.’ ” 711 So.2d at 929 (quoting She arson Lehman Bros., 646 So.2d at 617)). The wording of the arbitration provision and the changes made to the contract raise legitimate doubts as to whether the parties agreed to arbitrate their disputes. Accordingly, the trial court’s order granting VTP’s motion to compel arbitration is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

SEE, J., dissents.

SEE, Justice

(dissenting).

I respectfully dissent. The main opinion holds that Mountain Heating and Cooling, Inc., is not required to arbitrate its dispute with Van Tassel-Proctor, Inc., because “[t]he wording of the arbitration provision and the changes made to the contract raise legitimate doubts as to whether the parties agreed to arbitrate their disputes.” 867 So.2d at 1118.

The Federal Arbitration Act creates a strong presumption in favor of arbitration. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court of the United States held:

“[T]he courts of appeals have ... consistently concluded that questions of arbi-trability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitra-ble issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”

(Footnote omitted.) While “as with any other contract, the parties’ intentions control, ... those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

Federal courts applying this presumption in favor of arbitration have held that “any doubts about the construction or breach of the putative arbitration provision are to be resolved in favor of ordering arbitration.” Johnson Controls, Inc. v. City of Cedar Rapids, 713 F.2d 370, 373 (1983); Lomax v. Woodmen of the World Life Ins. Soc’y, 228 F.Supp.2d 1360, 1363 (N.D.Ga.2002)(“While arbitration agreements are creatures of contract and must be treated accordingly, courts must also be aware of the presumption in favor of arbitration in case of a contractual ambiguity.”); Collins v. International Dairy Queen, Inc., 2 F.Supp.2d 1473, 1478 (M.D.Ga.1998)(“[T]he standard rule of contract construction ... dictates that contracts are to be construed against the drafter.... However, this general principle relating to contracts is superseded by the federal policy which requires that construction of contract language is to be resolved in favor of arbitration where there are doubts as to the parties’ intentions.”).

In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the Supreme Court of the United States held that courts should enforce arbitration agreements when there is “ ‘clea[r] and unmistakable]’ evidence that” the parties agreed to arbitrate their dispute. The contract between Mountain Heating and Van Tassel-Proctor states, in pertinent part:

“B) ARBITRATION: Subcontractor [Mountain Heating] agrees that all questions arising under this Subcontract shall be resolved in the first instance by Contractor’s [Van Tassel-Proctor’s] Project Manager.... Any claim not satisfactorily resolved by Contractor’s Project Manager in the first instance, and which is presented in writing within the time provided, may be appealed by notice in writing to ... an Executive Officer of the Contractor if any other question under the Subcontract is involved. Such written notice and review shall be prerequisite to any further review or any legal action by the Subcontractor against the Contractor, Architect, and/or Owner. And if said dispute cannot be settled through direct discussions the parties agree to settle the dispute by arbitration under the Construction Industry Mediation Rules of the American Arbitration Association. Subcontractor agrees that it will reimburse^] hold harmless and/or indemnify any attorney’s fees and costs incurred by Contractor in connection with any dispute related to this contract, whether or not suit is filed. IN THE EVENT OF ANY LITIGATION — ARISING HEREUNDER, THE CONTRACTOR AND SUBCONTRACTOR — UNCONDITIONALLY-AND ABSOLUTELY WAIVE ANY AND ALL — RIGHTS TO TRIAL BY JURY.”

(Emphasis added; capitalization and strikeout in original.)

I believe that the parties unambiguously express their intention to arbitrate any dispute that may arise between them when they state in the contract: “if said dispute cannot be settled through direct discussions the parties agree to settle the dispute by arbitration....” The main opinion finds the contract ambiguous because (1) the parties state that they intend for their arbitration to be governed by the Construction Industry Mediation Rules of the American Arbitration Association; (2) the parties use the word “settle” rather than the word “resolve” to describe the role of the arbitrator in their dispute; (3) the parties struck a jury-waiver clause from the agreement; and (4) .the parties agreed that the contract would be construed and governed by Alabama law and not by Arkansas law.

The main opinion’s objections do not create any doubt that the parties clearly and unmistakably expressed an intention to arbitrate their disputes. The fact that the parties choose to arbitrate their dispute under the Construction Industry Mediation Rules of the American Arbitration Association does not render ambiguous the language in the agreement stating that the parties agree to “settle the dispute by arbitration.” The main opinion finds ambiguity by ignoring the parties’ plain statement that they agreed to “settle the dispute by arbitration” and by analyzing the rules that the parties have selected to govern the arbitration.

The parties’ choice of arbitration procedure raises no doubts as to the gateway-issue whether the parties actually agreed to arbitrate a dispute and the choice of an arbitration procedure will generally not void an arbitration clause. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)(“Just as [the parties] may limit by contract the issues which they will arbitrate, ... so too may they specify by contract the rules under which that arbitration will be conducted.”). “Indeed, short of authorizing trial by battle or ordeal or, more doubtfully, by a panel of three monkeys, parties can stipulate to whatever procedures they want to govern the arbitration of their disputes; parties are as free to specify idiosyncratic terms of arbitration as they are to specify any other terms in their contract.” Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 709 (7th Cir.1994).

In PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401, 407 n. 2, 123 S.Ct. 1531, 1536 n. 2 (2003), the Supreme Court of the United States held that, in a contract between several physicians and Paci-fiCare, the question whether remedial limitations would render them arbitration agreement unenforceable was not a gateway question of arbitrability to be decided by the court, but was instead a question to be answered by the arbitrator. The enforceability of the agreement had no bearing on the rather narrow question whether the parties had agreed to arbitrate the dispute. Similarly, in this case, whether the Construction Industry Mediation Rules of the American Arbitration Association permit an arbitrator to impose a result on the parties is not an issue before this Court in determining whether the parties unambiguously intended to settle their dispute through arbitration; issues concerning the rules governing arbitration are questions for the arbitrator to decide.

The parties’ use of the word “settle” in the arbitration provision instead of the word “resolve” similarly does not create doubt about the parties’ intentions. The word “settle,” means, among other things, “to fix or resolve conclusively.” Merriam-Webster’s Collegiate Dictionary (10th ed.1996). Even if the use of the word “settle” might appear to create ambiguity, the general rules of contract interpretation require that “where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000). The main opinion’s construction of the word “settle” im-permissibly gives the word “arbitrate” no field of operation and therefore does not give effect to all of the contract’s terms. Moreover, given the strong federal presumption in favor of arbitration, any doubt as to the meaning of an ambiguous term must be resolved in favor of arbitration. See Johnson Controls, 713 F.2d at 373.

The fact that the parties struck jury-waiver language from the arbitration clause does not make the remaining language ambiguous. The plain meaning of the statement, “the parties agree to settle the dispute by arbitration,” is not altered by the addition or subtraction later in the same paragraph of language waiving a right to a jury “[i]n the event of any litigation arising hereunder.”

Finally, while the parties’ modification of the choice-of-law provision in the contract affects the law to be applied by the arbitrator in settling this dispute, the choice-of-law provision does not affect our decision as to the enforceability of the arbitration clause, because the Federal Arbitration Act, 9 U.S.C. § 1 et seq., “has the effect of preempting conflicting Alabama law, in particular Ala.Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.” Homes of Legend, 776 So.2d at 745.

Because the parties clearly and unmistakably expressed an intention to settle their dispute by arbitration, I would affirm the trial court’s order compelling the parties to arbitrate. Therefore, I dissent.

      . The AAA includes the arbitration rules and the mediation rules in the same brochure, but the mediation rules appear under a separate heading and are numbered M-l through M-17, while the arbitration rules are numbered R-l through R-54. The AAA's brochure states: "Due to the increasing popularity of mediation, especially as a prelude to arbitration, [the AAA] has combined its mediation and arbitration rules into a single brochure."

      . For that matter, the main opinion makes no argument that the Construction Industry Mediation Rules of the American Arbitration Association are not proper rules under which to arbitrate a dispute. The rules are contained in a document entitled “Construction Industry Dispute Resolution Procedures,” revised and amended as of January 1, 2003. The arbitrator could well decide that he or she is entitled to rely on any of the procedures outlined in the broader document.

      . For example, when people have a dispute they will commonly say such tilings as “well settle this in court” or "let's settle this outside.”


author: PITTMAN, Judge.

text:
    MOUNTAIN HEATING AND COOLING, INC. v. VAN TASSEL-PROCTOR, INC.
    2010333.
    Court of Civil Appeals of Alabama.
    June 13, 2003.
    Jim H. Fernandez of Fernandez, Ollinger & Combs, Mobile, for appellant.
    Susan S. Wagner and D. Keith Andress of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham; and Edward C. Greene of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

The prior judgment of this court has been reversed and the case remanded by the Supreme Court of Alabama. See Ex parte Mountain Heating and Cooling, Inc., 867 So.2d 1112 (Ala.2003). In compliance with the judgment of the Alabama Supreme Court, the trial court’s judgment compelling arbitration is reversed and the cause is remanded for further proceedings consistent with that opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.


text:
    Joseph M. ANDERSON and Angela Anderson v. SMITH’S TOWING COMPANY, INC., et al.
    2011005.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2002.

      Thomas R. Boiler, Mobile, for appellants.
    Robert S. Lamar, Jr., of Lamar, Miller, Norris & Feldman, P.C., Birmingham, for appellees.
   PITTMAN, Judge.

This is an appeal from the trial court’s order granting the defendant’s motion for summary judgment.

This case was transferred to this court from the supreme court pursuant to § 12-2-7, AIa.Code 1975.

On May 12, 1999, Joseph and Angela Anderson filed a complaint alleging conversion and negligence on the part of Smith’s Towing Company, Inc., and others (hereinafter “Smith’s”) in selling a 1956 Ford Thunderbird to a third party. Subsequently, on December 17, 2001, Smith’s filed a motion for summary judgment. On February 19, 2002, Joseph and Angela Anderson filed a response to the motion for summary judgment. The trial court entered an order on March 11, 2002, granting summary judgment for Smith’s. In its order granting summary judgment, the trial court found that no genuine issues of material fact existed and Smith’s was entitled to a final judgment as a matter of law. (C. 101.)

On appeal, Joseph and Angela Anderson contend that the trial court erred in granting Smith’s motion for summary judgment. Specifically, the Andersons argue that an action for conversion and negligence is proper in this case because, they say, they had a possessory interest in the Thunderbird where it had been in their possession for five years. Joseph and Angela Anderson further contend that they had a cause of action against Smith’s for negligence per se as a part of a class of persons protected under the Alabama Abandoned Motor Vehicles Act found in §§ 32-13-01 et seq., Ala.Code 1975.

Rule 56 of the Alabama Rules of Civil Procedure sets out a two-tiered standard for entering summary judgments. The trial court must determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law. Hinkle v. Burgreen Contracting Co., 678 So.2d 797, 799 (Ala.Civ.App.1996). Furthermore, to defeat a properly supported motion for summary judgment, the non-movant must present “substantial evidence” of his claim. § 12-21-12, Ala.Code 1975. “Substantial evidence” is “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.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party. Goodwin v. City of Fultondale, 706 So.2d 766 (Ala.Civ.App.1997).

At the outset, we note the following well-settled law regarding conversion:

“ ‘To establish conversion, a plaintiff must show a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property. The plaintiff must establish that the defendant converted specific personal property to the defendant’s own use and beneficial enjoyment. The plaintiff asserting conversion could also show that the defendant destroyed or exercised dominion over property to which, at the time of the' destruction or exercise of dominion, the 'plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which the plaintiff was entitled to immediate possession.’

Ellis v. Alcuri, 710 So.2d 1266, 1267 (Ala.Civ.App.1997), citing Huntsville Golf Dev., Inc. v. Ratcliff, Inc., 646 So.2d 1334, 1336 (Ala.1994) (citations omitted)(emphasis added).

The Andersons contend that an action for conversion was proper where they had a possessory interest in the Thunderbird. While the facts contained in the record on appeal are minimal, the facts do indicate that the Thunderbird was originally driven by Angela Anderson’s mother before her death. (C. 51.) After the mother’s death, the Thunderbird was willed to Angela Anderson; however, as executor of his wife’s estate, Angela’s father kept the title to the Thunderbird in his name. (C. 48-49.) The Andersons brought the car from Ohio to Alabama to be refurbished. (C. 48.) The car was eventually left with Smith’s. (C. 52-53.)

Although the facts indicate that Joseph and Angela Anderson were entitled to immediate possession of the Thunderbird, and had previously had actual possession of the vehicle, they did not have a general or specific title to the Thunderbird. Indeed, Joseph and Angela Anderson had a possessory interest in the Thunderbird; however, this possessory interest alone is insufficient to maintain an action for conversion. Ellis, supra. The Ohio title to the Thunderbird, attached as an exhibit to Smith’s motion for summary judgment, indicates Elias Fonda had legal title to the vehicle. Accordingly, Joseph and Angela Anderson did not have legal title to the vehicle, and, therefore, the trial court did not err in granting summary judgment with regard to Joseph and Angela Anderson’s claim of conversion.

Likewise, the trial court did not err in granting summary judgment in favor of Smith’s on Joseph and Angela Anderson’s claim of negligence per se under the Alabama Abandoned Motor Vehicles Act. The four .elements of negligence per se are (1) that the statute was enacted to protect a class of persons that includes the litigant seeking to assert the statute; (2) that the injury was of the type contemplated by the statute; (3) that the party charged with negligent conduct violated the statute; and (4) that the statutory violation proximately caused the injury. Sparks v. Alabama Power Co., 679 So.2d 678, 685 n. 2 (Ala.1996); Fox v. Bartholf 374 So.2d 294 (Ala.1979). Joseph and Angela Anderson argue that the circuit court erred in finding that they were not among the class of persons protected under § 32-13-1 et seq., Ala.Code 1975.

Section 32-13-1(1), Ala.Code 1975, defines an abandoned motor vehicle, in pertinent part, as “[a vehicle] which has been left by the owner, or some person acting for the owner, with an automobile dealer, repairman, or wrecker service for repair ... and has not been called on by the owner ...” within a specified period of time under the statute. While this court has recognized that the sale of an individual’s vehicle under the Alabama Abandoned Motor Vehicles Act directly affects a secured party or lienholder’s property interests, see Global Federal Credit Union v. Walker, 679 So.2d 1075, 1078 (Ala.Civ.App.1996), we have npt previously held that a future titleholder’s interest or an .heir’s interest is directly affected under the Alabama Abandoned Motor Vehicles Act.

After a careful review of the statute, we conclude that Joseph and Angela Anderson were not among the class of persons protected by the Alabama Abandoned Motor Vehicles Act, where they did not have legal title to the vehicle, and where they were acting on behalf of their own interests when they took action to repair the Thunderbird. Therefore, the class of persons protected under the Alabama Abandoned Motor Vehicles Act does not include a future titleholder’s interest or the interest of an heir. Indeed, this court’s prior holdings with regard to the Alabama Abandoned Motor Vehicle Act have limited the protected class of persons to those with secured interests. Global Federal Credit Union, supra. Based on the foregoing, the trial court did not err in granting Smith’s motion for summary judgment as to the negligence claim.

Accordingly, the judgment of the trial court granting summary judgment is affirmed.

AFFIRMED.

CRAWLEY and THOMPSON, JJ., concur.

YATES, P.J., concurs in the result.

YATES, Presiding Judge,

concurring in the result.

I concur in the result reached in the main opinion. I write to note that Angela Anderson’s father, Elias Fonda, the person to whom the automobile was titled, also sued the defendants on September 25, 2001, alleging conversion and negligence. The trial court certified the summary judgment entered against the Andersons as final pursuant to Rule 54(b), Ala. R. Civ. P.