author: HOUSTON, Justice. JOHNSTONE, Justice SEE, Justice

text:
    CAPITOL CHEVROLET & IMPORTS, INC. v. Jean A. PAYNE.
    1021027.
    Supreme Court of Alabama.
    Sept. 12, 2003.
    Robert A. Huffaker and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    John T. Alley, Jr., Montgomery, for ap-pellee.
   HOUSTON, Justice.

Capitol Chevrolet & Imports, Inc. (“Capitol”), appeals the Montgomery Circuit Court’s denial of its motion to compel arbitration. We affirm.

7. Facts

On September 6, 2001, the plaintiff, Jean A. Payne, purchased a used 1997 Cadillac Catera automobile from Capitol. Capitol financed the purchase of the Catera, and both Payne and Capitol signed a “Retail Installment Sale Contract” and an accompanying arbitration agreement. The arbitration agreement provided, in pertinent part:

“Buyer/lessee and dealer agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease, or financing shall be settled by binding arbitration conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. and according to the Commercial Arbitration Rules of the American Arbitration Association. Without limiting the generality of the foregoing, it is the intention of the buyer/lessee and the dealer to resolve by binding arbitration all disputes between them concerning the vehicle, its sale, lease or financing, and its condition, including disputes concerning the terms and conditions of the sale, lease or financing, the condition of the vehicle, any damage to the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale, lease or financing of the vehicle, or negotiations for the sale, lease, or financing of the vehicle, or any terms, conditions, representations or omissions made in connection with the financing, credit life insurance, disability insurance, vehicle extended warranty or service contract or other products or services acquired as an incident to the sale, lease or financing of the vehicle.”

In September 2002, Payne sued Capitol and a Capitol salesperson, Jason Golden, alleging fraud and conversion. According to Payne’s complaint, approximately one month after she purchased the Catera, she returned the Catera to Capitol in reliance on Golden’s representation that Capitol had a willing buyer for the vehicle. Payne relinquished possession of the Cat-era to Capitol and stopped making payments on the car. Payne alleged that Golden, while acting in the line and scope of his employment with Capitol, misrepresented to her that Capitol had a buyer for the Catera, and that, when Payne relinquished the Catera to Capitol in reliance on that misrepresentation, Golden converted the Catera for his personal use. Payne’s complaint alleged that, as a result of the misrepresentation, she lost the use of her vehicle, suffered severe mental anguish, and suffered an adverse credit rating once she stopped making payments on the Catera.

Capitol moved to compel arbitration based on the arbitration agreement Payne signed when she purchased the Catera. Payne, however, argued that her claims, which alleged fraud and conversion, were outside the scope of the arbitration agreement. The circuit court issued the following written order denying Capitol’s motion to compel arbitration:

“This matter is before the Court on Defendant Capitol Chevrolet’s Motion to Compel Arbitration. [Payne], who frequently traded automobiles, purchased an automobile from Capitol Chevrolet and signed an agreement which contained a broad arbitration clause. Shortly thereafter, Defendant Golden called [Payne] and informed her that he had a buyer for her automobile. [Payne] returned the automobile to Capitol Chevrolet with the understanding that the dealership had a purchaser for the automobile and would sell it for her.
“The salient issue is the scope of the arbitration agreement. Since [Payne] concedes that the original purchase involved interstate commerce, [Capitol] has the burden of proving that the incident at issue is covered by the arbitration agreement.[Capitol] contends that essentially any dispute between the parties relating to the subject automobile must be arbitrated. [Payne] counters that the sale of the automobile is a new agreement, devoid of an arbitration component. The Court finds the latter argument to be more persuasive. Capitol Chevrolet made an offer to sell the vehicle and [Payne] accepted the offer. Thus, a new contract was formed that did not contain an arbitration clause. In addition, the Court finds that there is no connection between the original contract and the incident at issue. While the arbitration clause in the original agreement is broad, it was not included in the new contract and the parties did not contemplate this resale at the time of the original agreement. Wherefore, it is hereby ordered that [Capitol’s] Motion to Compel Arbitration is denied.”

Capitol appealed.

II. Standard of Review

We have recently summarized our standard of review of a denial of a motion to compel arbitration:

“An appeal is the proper method by which to challenge a trial court’s denial of a motion to compel arbitration. Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). ‘[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); Ex parte Southern United Fire Ins. Co., 843 So.2d 151 (Ala.2002).”

Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 101 (Ala.2003).

III. Scope of the Arbitration Agreement

On appeal, Capitol argues that because Payne’s claims concern the Catera and the financing for the Catera, her claims fall squarely within the scope of the arbitration agreement. Capitol notes that Payne’s complaint alleges that, in reliance on Capitol’s misrepresentations, Payne stopped making payments on the note pursuant to which she purchased the Catera, which in turn had a negative effect on her credit rating. Capitol argues that because any credit rating arose from the financing associated with Payne’s purchase of the Catera, Payne’s claims clearly fall within the scope of the arbitration agreement, which states that “all disputes between [Payne and Capitol] concerning the vehicle, its sale, lease or financing ” are to be resolved by binding arbitration. (Emphasis added.) We disagree.

“A motion to compel arbitration is analogous to a motion for a summary judgment. Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102 (1995); Allstar Homes, Inc. v. Waters, 711 So.2d 924 (Ala.1997). 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. Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260 (Ala.1995).”

TransSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). “If the party moving to compel arbitration fails to make such a showing, the burden of proof does not shift to the opposing party and the motion should be denied.” Ex parte Greenstreet, Inc., 806 So.2d 1203, 1207 (Ala.2001).

In reviewing arbitration provisions, we apply general state-law contract principles. Southern Foodservice Mgmt., Inc. v. American Fid. Assurance Co., 850 So.2d 316, 319 (Ala.2002).

“Whether an arbitration provision encompasses a party’s claims is a matter of contract interpretation. That interpretation is guided by the intent of the parties, which, absent ambiguity in the arbitration provision, is evidenced by the plain language of the provision.”

Ex parte Discount Foods, Inc., 789 So.2d 842, 844 (Ala.2001).

In Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 275 (Ala.1999), we noted that, when reviewing whether a dispute is sufficiently related to a contract containing a broadly drafted arbitration agreement so as to be covered under the scope of that agreement, there must be “some legal and logical nexus between the source of the dispute and the arbitration provision at issue.” Kenworth, 745 So.2d at 275-76. In the present case, we find no such nexus.

While the present action does, in some sense, “aris[e] from ... any of the negotiations involved in the sale ... of the vehicle” — Payne obtained possession of the allegedly converted Catera as a result of the initial sale — a fair reading of the arbitration agreement signed by Payne and Capitol leads to the conclusion that the agreement covers only disputes that more closely relate to the initial purchase and financing of the Catera, and the negotiations and sale of other services incident to the initial sale of the Catera. The arbitration agreement states that it covers disputes

“arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease, or financing ... [and] all disputes between [Capitol and Payne] concerning the vehicle, its sale, lease or financing, and its condition, including disputes concerning the terms and conditions of the sale, lease or financing, the condition of the vehicle, any damage to the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale, lease or financing of the vehicle, or negotiations for the sale, lease, or financing of the vehicle, or any terms, conditions, representations or omissions made in connection with the financing, credit life insurance, disability insurance, vehicle extended warranty or service contract or other products or services acquired as an incident to the sale, lease or financing of the vehicle.”

We do not believe that the plain language of the arbitration agreement would lead one to assume or understand that the agreement covered the claims alleged in Payne’s complaint — a later fraudulent misrepresentation, unrelated to the original sale of the vehicle, resulting in the conversion of the vehicle. The present dispute involves alleged subsequent tortious conduct on the part of Capitol and its agent that is not close enough in relation to the initial sale of the Catera to be covered by the language of the arbitration agreement. Accordingly, we find that Capitol did not meet its burden in proving the existence of a contract calling for arbitration of the dispute now before us.

TV. Conclusion

Because we find that Capitol did not meet its burden in proving the existence of a contract calling for arbitration of the present dispute, the Montgomery Circuit Court’s order denying Capitol’s motion to compel arbitration is affirmed.

AFFIRMED.

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

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

SEE, J., dissents.

JOHNSTONE, Justice

(concurring in part and concurring in the judgment).

I concur except that I express no opinion on the dictum in footnote 1 to the effect that the typed name of Capitol Chevrolet constitutes a proper “signature” on the arbitration agreement.

SEE, Justice

(dissenting).

I respectfully dissent from the majority’s affirmance of the trial court’s denial of Capitol’s motion to compel arbitration. The arbitration agreement provided in part: ‘Without limiting the generality of the foregoing, it is the intention of the buyer/lessee and the dealer to resolve by binding arbitration all disputes between them concerning the vehicle, its sale, lease or financing.” It is certainly possible to construe this language to limit the scope of the arbitration agreement to the initial sale of the vehicle; however, it is also reasonable to construe the language in the arbitration agreement — “all disputes between them concerning the vehicle, its sale, lease or financing” — to apply to any sale of the vehicle.

The question of arbitrability is “ ‘an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’ ” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002)(quoting AT & T Techns., Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). The arbitration agreement Payne signed provides that “any question regarding whether a particular controversy is subject to arbitration shall be decided by the Arbitrator.” This Court has held that where the contract specifies that the arbitrator is to resolve questions of arbitrability, a trial court’s denial of a motion to compel arbitration based upon whether a claim is subject to arbitration is improper. Capitol Chevrolet & Imports, Inc. v. Grantham, 784 So.2d 285 (Ala.2000). In Grantham, the arbitration agreement contained the same language regarding the threshold question of arbitrability, and this Court held that the language “clearly provided” that the question of arbitrability would be determined by an arbitrator. Because the question of arbitrability should be decided by an arbitrator as provided in the arbitration agreement, I respectfully dissent.

      . The "Retail Installment Sale Contract” provided that "[t]his contract contains the entire agreement between you and us relating to this contract.... Any change to the contract must be in writing and we must sign it.” On appeal, Payne argues that because the arbitration agreement signed by her was a separate document that was not signed by Capitol or referenced in the "Retail Installment Sale Contract,” the arbitration agreement is not enforceable. However, because Payne raises this argument for the first time on appeal, we need not address it. See Owens v. National Bank of Commerce, 608 So.2d 390, 391 (Ala.1992). We do note, however, that the typed name "Capitol Chevrolet & Imports, Inc.,” which appears on the signature line for the "Seller/Lessor/Dealer,” constitutes a proper "signature.” Anderson Bros. Chrysler Plymouth Dodge, Inc. v. Hadley, 720 So.2d 895 (Ala.1998).


source: Caselaw Access Project

author: WOODALL, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    AVIS RENT A CAR SYSTEMS, INC., et al. v. Cindy Wiegel HEILMAN and Rosalind Davis Meyer. Avis Licensee Defendants v. Cindy Wiegel Heilman and Rosalind Davis Meyer.
    1020672 and 1020667.
    Supreme Court of Alabama.
    Sept. 12, 2003.

      Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants Avis Rent A Car Systems, Inc., Avis Rent A Car, Inc., and Cendant Corporation.
    Billy C. Bedsole of Stockman & Bedsole, Mobile, for appellants Coates Motor Rental, Inc.; Mobile U-Drive It, Inc.; Car & Truck Rentals, Inc.; Clark Car & Truck Rental, Inc.; and Southeastern Car & Truck Rentals, Inc.
    Russell Jackson Drake and Charlene P. Ford of Whatley Drake, L.L.C., Birmingham; and Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees.
   WOODALL, Justice.

Avis Rent A Car Systems, Inc.; Avis Rent A Car, Inc.; and Cendant Corporation (hereinafter collectively referred to as “Avis”); and “the Avis Licensee Defendants,” namely, Coates Motor Rental, Inc.; Mobile U-Drive It, Inc.; Car & Truck Rentals, Inc.; Clark Car & Truck Rental; and Southeastern Car & Truck Rentals, Inc. (hereinafter collectively referred to as “the licensees”), appeal from an order certifying a class action pursuant to Ala. R. Civ. P. 23(b)(3); the class action asserts claims of breach of contract, unjust enrichment, and conspiracy. We affirm the order in part, vacate it in part, and remand.

This dispute began in 1998, when Cindy Wiegel Heilman and Rosalind Davis Meyer each rented automobiles from Avis or the licensees at the airports in Birmingham and Montgomery, respectively, and paid, in addition to a fee for a rental. period, charges described in their “transaction” documents as (1) an “8% tax recovery surcharge” (“the surcharge”), and (2) a 10% “concession fee recoupment” (“the recoupment”). With each transaction, the renters received three documents.

When Heilman and Meyer took possession of their rented vehicles, they each received a “rental document,” stating that they would be charged, among other things, the following:

“10.00% CONCESSION FEE RECOUP
TAX: .000%
8% TAX RECOVERY SURCH.”

Heilman and Meyer each signed her respective rental document. The rental document was accompanied by a “rental jacket,” containing a list of “rental terms and conditions.” The rental jacket provided, in part:

“1. These terms and conditions, the rental document signed by me, and a return record with computed rental charges together constitute the rental agreement between myself and Avis Rent A Car System, Inc., or the independent Avis System Licensee identified on the rental document.
“5. Rental Charges. I will pay for the number of miles I drive and the length of time I rent the car at the time and mileage rates indicated on the rental document. The minimum charge is one day (24 hours) plus mileage, or a fixed fee. Miles determined by reading the factory-installed odometer. Daily charge applies to consecutive 24 hour periods starting at the hour and minute the rental begins. I’ll pay charges for miscellaneous services which apply to the rental. On tour rate rentals an additional per day charge will apply to certain renters as specified on the rental document.
“6. I’ll pay all sales, use, rental, and excise taxes, including tax-related surcharges.”

(Emphasis added.) Finally, upon the return of each car, the renter received a “return record.” The return record listed the itemized charges, including the surcharge and the recoupment. Heilman was subsequently reimbursed by her employer, Douglas Stewart Company, Inc. (“Stewart”), for the cost of the rental.

On March 13, 2000, Heilman and Meyer sued Avis and the licensees on behalf of themselves and “all others similarly situated,” alleging that the surcharge and the recoupment were unauthorized by law and that they had been assessed in violation of the terms of the transaction documents. They sought compensatory and punitive damages under several theories, including breach of contract, fraud, suppression, and misrepresentation. The complaint also contained a conspiracy count, which alleged in toto:

“42. [Heilman and Meyer] reallege the allegations contained in all preceding paragraphs of the complaint.
“43. Avis [and the licensees] entered into a conspiracy beginning as early as 1990 to, among other things, suppress the information and/or to make the false representations as aforesaid.
“44. [Avis and the licensees] have done those things they conspired and concerted to do. As a proximate consequence thereof, [Heilman and Meyer] and the class [have] been injured as aforesaid.
“WHEREFORE, premises considered, [Heilman and Meyer] pray for judgment for compensatory damages in an amount to be determined by the jury and punitive damages, interest and costs.”

They also sought injunctive relief and restitution under a theory of “unjust enrichment.”

On July 30, 2002, Heilman and Meyer moved to certify the action as a class action, pursuant to Rule 23(b)(3). On December 17, 2002, the trial court entered an order, stating in part:

“With respect to the following causes of action: breach of contract, unjust enrichment, and conspiracy, this lawsuit shall be maintained as a class action on behalf of the following class of [Heilman and Meyer]:
“All persons, firms and corporations or their employees or agents (other than [Avis and the licensees], their parents and subsidiaries and their directors, officers, employees, agents or representatives) who rented cars or other vehicles from one or more of the [Avis and the licensees] at any time since December 1, 1990, at car rental locations in the State of Alabama.”

(Emphasis added.) The trial court declined to certify the fraud-based claims for class treatment.

Moreover, the court stated: “In written responses and in oral argument, [Heilman and Meyer] have confirmed that they seek to recover solely on their written contracts .... [Avis and the licensees] do not argue that the terms of the written contracts were varied by oral agreements. Accordingly, [Heilman and Meyer’s] breach of contract claims are limited to their written contracts.... ” (Emphasis added.) Avis and the licensees appealed, contending that the trial court’s analysis and holding fail to satisfy the Rule 23 requirements of class certification.

It is well settled that the party seeking certification of a Rule 23(b)(3) class must demonstrate the existence of all the criteria set forth in Rule 23(a), namely, (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation, plus the Rule 23(b)(3) requirements of (1) predominance and (2) superiority. See Reynolds Metals Co. v. Hill, 825 So.2d 100, 103 (Ala.2002). More specifically, putative Rule 23(b)(3) class representatives must demonstrate that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3).

A number of these criteria, such as the Rule 23(a) requirements of commonality and typicality and the Rule 23(b)(3) requirement of predominance, are analytically similar. Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 117 (D.Kan.1995). Avis and the licensees contend, in substance, that the class was certified without the requisite showing of Rule 23(a) typicality and adequacy of representation, or of Rule 23(b)(3) predominance.

I. Typicality and Adequacy

Avis and the licensees argue that Heil-man and Meyer are not similarly situated with all members of the certified class, and, therefore, that they cannot adequately represent the class. They also argue that Heilman lacks standing to sue, either as an individual or as a class representative. We first address the typicality of the claims of Heilman and Meyer, as that factor relates to the adequacy of their class representation.

A. Adequacy of Heilman and Meyer as Class Representatives

Avis and the licensees contend that Heilman and Meyer cannot adequately represent the class certified by the trial court, because, they insist, the circumstances under which they contracted with Avis and the licensees are atypical of the circumstances under which other class members contracted with Avis and the licensees. We find some merit in this contention.

“ ‘The essence of the typicality requirement is that the relationship between the injury to the class representatives and the conduct affecting the entire class of plaintiffs must be sufficient for the court to properly attribute a collective nature to the challenged conduct.’ ” Atlanta Cas. Co. v. Russell, 798 So.2d 664, 668 (Ala.2001) (quoting Warehouse Home Furnishing Distribs., Inc. v. Whitson, 709 So.2d 1144, 1149 (Ala.1997)). The typicality requirement “ “serve[s] as [a] guidepost[ ] for determining whether under the particular circumstances ... the named plaintiffs claim and the class claims are so interrelated that the interests of the class, members will be fairly and adequately protected in their absence.’ ” Atlanta Cas. Co., 798 So.2d at 666-67 (quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 158, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

Heilman and Meyer base their claims on two species of fee charged by Avis and the licensees in connection with their vehicle rentals: the surcharge and the recoupment. The trial court certified a class composed of individuals and corporations that had rented cars from Avis or the licensees. However, the manner in which the challenged fees were presented to, or affected, the putative class members differed considerably among the members, depending on (1) whether the renter was an individual or a corporation; (2) whether the renter was a “corporate traveler”; and (3) whether a national corporate contract accorded the renter “preferred” or “non-preferred customer” status.

A significant percentage of customers of Avis and the licensees are “corporate travelers,” that is, individuals traveling in the employ of corporations that have negotiated “national corporate contracts” with Avis. The national corporate contracts typically provide, as the licensees explain it, “a set rental rate” for the corporation’s employees, “in consideration [for] the [corporation’s] commitment to rent from Avis.” Brief of licensees, at 4. In that connection, Robert W. Klyee, the owner and general manager of one of the licensees, testified by affidavit, as follows:

“Avis enters into contracts with large corporations where that corporation tells each one of its employees who might visit any location in Alabama, to rent automobiles from Avis. The corporation and Avis agree on the rate and it is also further agreed that the corporation will pay for all charges, which would include the concession fee recoupment of ten percent and the tax recovery surcharge of [eight] percent.... This is completely different from a situation in which an individual might book a reservation through a travel agent or personally call an Avis Reservation Agent to book a reservation. In these latter two situations, the individual renter had no obligation to Avis even after booking a reservation if they changed their mind or failed to show up for any reason. These certain individuals do not have a contract until they sign one when they actually rent the car. The corporate renter’s rate is predetermined by an agreement between their employer and Avis Rent A Car, Inc.”

Moreover, approximately one-third of .the corporate travelers do not pay the recoupment, the result, apparently, of negotiations between their corporate employers and Avis. Additionally, approximately 50% of Avis’s corporate-traveler customers are designated as “preferred customers.” Preferred-customer status enables the corporate traveler to rent Avis vehicles without signing rental documents, either upon receipt or return of the automobiles.

The disparate circumstances under which Avis’s vehicles were rented deprive the claims of Heilman and Meyer of the typicality necessary to sustain certification of a class as comprehensive as the one the trial court certified. Otherwise stated, the alleged injuries of the named representatives are premised on facts and relationships fundamentally different than those involving many of the class members they seek to represent. The implications of these disparities are illustrated by the breach-of-contract allegations in the complaint:

“24. [Heilman and Meyer] and the members of the class they represent, entered into contracts with defendant Avis Systems and with various of its licensees. Pursuant to the terms of these contracts, they agreed to rent automobiles from said defendants and to pay for said rentals agreed upon individual, corporate, or affinity group rates, with any agreed upon discounts.
“25. As part of said contracts relevant herein, {Avis and the licensees] agreed that [Heilman and Meyer] and the class would pay only ‘rental charges’ and ‘all sales, use, rental and excise taxes including tax-related surcharges.’ [Avis and the licensees] state in their contracts that the tax was zero.
“26. The terms and conditions of the contract make no provision whatsoever, for the imposition of an airport concession fee.
“27. [Avis and the licensees] breached their contracts with [Heilman and Meyer], and with the class they represent, by making unauthorized and illegal charges, which had not been agreed upon; by effectively increasing agreed upon rental rates through the making of excess and deceptive charges that consumers would expect to be included in the rental rates they were charged; and by charging [the surcharge], [the re-coupment], and other surcharges that are not the contractually specified taxes, not related to the specified taxes and not authorized by law. Finally, any contractual provision authorizing the imposition of the license tax paid by Avis Systems or its licensees upon Avis customers is void as against the public policy of Alabama.
“28. As a proximate consequence of said breach of contract, [Heilman and Meyer] have been injured in that they have been caused to pay excessive amounts of money to [Avis and the licensees].”

(Emphasis added.)

One of the elements of a breach-of-contract claim under Alabama law is the existence of “a valid contract binding the parties.” Reynolds Metals Co., 825 So.2d at 105. “ ‘The requisite elements of [a valid contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ ” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Stength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)).

Heilman and Meyer’s breach-of-contract claims, as stated in the complaint, are premised on the theory that the class members (1) actually rented vehicles from Avis and the licensees; (2) were presented with the terms of the transaction documents; (3) formed an expectation based on those terms; (4) had at least a theoretical opportunity to negotiate the terms; and (5) unwittingly paid the challenged fees. The circumstantial disparities in this case center on the manner in which the respective contracts were formed and concern the relative opportunities of the putative class members for mutual assent to a bargained-for exchange.

The class certified by the trial court includes corporations, which do not, under the alleged facts, rent vehicles. Instead, they negotiate contracts with Avis that are national in scope, under which their employees, in using the facilities of Avis and the licensees, are bound. The individual contracts of Heilman and Meyer bear little resemblance to those national contracts, either in scope or in negotiability.

The class also includes those individuals who, unlike Heilman and Meyer, were corporate travelers, using vehicles under agreements between their employers and Avis. Also included are individuals, who, unlike Heilman and Meyer, rented cars pursuant to their employer’s preferred-customer agreement with Avis. Indeed, it appears from the record that these preferred customers never received a rental jacket containing the terms on which Heil-man and Meyer rely in stating their breach-of-contract claims. Consequently, unlike Heilman and Meyer, the corporate travelers take possession of their rental vehicles without even a theoretical opportunity to negotiate the terms of the rental.

Actually, this case involves at least three distinct sets of customers — (1) corporations, (2) corporate travelers, and (3) “individual renters,” such as Heilman and Meyer. The claims of the individual renters are based on facts and circumstances, including the written terms on the rental jacket, that are immaterial to the claims of members of the other sets. The “ ‘relationship between the injury to the class representatives and the conduct affecting the entire class of plaintiffs [is insufficient] for the court to properly attribute a collective nature to the challenged conduct.’ ” Russell, 798 So.2d at 668 (quoting Warehouse Home Furnishing Distribs., 709 So.2d at 1149).

For these reasons, the trial court erred in including corporations and corporate travelers, as that term is used in this opinion, within the class it certified. To the extent the certification order includes those entities, it is vacated as overly broad. We next consider whether Heilman has standing to represent a class of individual renters.

B. Heilman’s Standing

Avis and the licensees contend that Heilman lacks standing to sue, because she has been reimbursed by Stewart for the rental fee she paid. Specifically, Avis argues that, because she was reimbursed, Heilman has no “cognizable claim for relief and thus cannot serve as an adequate class representative.” Brief of Avis, at 68. We disagree with this argument.

To establish that she has standing, Heilman must “demonstrate the existence of: (1) ... ‘an invasion of a legally protected interest’-, (2) a ‘causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be ‘redressed by a favorable decision.’ ” Stiff v. Alabama Alcoholic Beverage Control Bd., [Ms. 1010169, May 2, 2003] — So.2d —, —— (Ala.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (emphasis added).

It is well settled that an action will lie for breach of contract, even where the plaintiff has suffered no actual damage. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 128 (Ala.1989); James S. Kemper & Co. v. Cox & Assocs., Inc., 434 So.2d 1380, 1385 (Ala.1983). This is so, because “ ‘[a]n unexcused failure to perform a contract is a legal wrong. Action will lie for the breach although it causes no injury.... The party whose legal right has been invaded by such breach is entitled to at least nominal damages, for the law recognizes that every injury imports damages.’ ” Cooley v. Gulf Bank, Inc., 773 So.2d 1039, 1048 (Ala.Civ.App.1999) (Crawley, J., concurring in part and dissenting in part) (quoting 11 Williston on Contracts § 1339A, at 206, 208 (3d ed.1968)) (emphasis added).

Heilman, not Stewart, executed the rental contract with Avis. Privity exists between Heilman and Avis, not between Stewart and Avis. The breach-of-contract count alleges the “invasion of a legally protected interest,” for standing purposes, regardless of the reimbursement of her alleged actual damages. Thus, the fact that she was reimbursed for the cost of the rental does not deprive Heilman of standing to assert a breach-of-contract claim.

II. Predominance

Avis and the licensees contend that the trial court erred in certifying all three claims for class-action treatment, because, they argue, Heilman and Meyer failed to demonstrate that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Rule 23(b)(3). “ ‘The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1071 (Ala.2003) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). “The predominance requirement is met if there is a common nucleus of operative facts relevant to the dispute and those common questions represent a significant aspect of the case which can be resolved for all members of the class in a single adjudication.” Heartland Communications, Inc., 161 F.R.D. at 117; see Cheminova America Corp. v. Corker, 779 So.2d 1175, 1181 (Ala.2000). We first address the predominance question in the context of the breaeh-of-con-tract claims.

A. Breachr-of-Contract Claims

Avis and the licensees contend that individual fact inquiries will necessarily predominate over common questions of law or fact in the context of the breach-of-contract claims, and that the class is otherwise unmanageable. More specifically, they argue that the transaction documents that form the contracts are ambiguous, and they cite a line of authority holding that a breach-of-contract claim may not be certified for class-action resolution if the contract contains ambiguities that cannot be resolved through ordinary canons of construction. See, e.g., General Motors Acceptance Corp. v. Dubose, 834 So.2d 67 (Ala.2002); Reynolds Metals Co., supra; Compass Bank v. Snow, 823 So.2d 667 (Ala.2001); Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400 (Ala.2001); Mann v. GTE Mobilnet of Birmingham, Inc., 730 So.2d 150 (Ala.1999); Lackey v. Central Bank of the South, 710 So.2d 419 (Ala.1998). The rationale for the rule applied in those cases is that, where extrinsic evidence is required to resolve an ambiguity, the finder of fact would have to “determine how each class member ... interpreted the ambiguous language.” Dubose, 834 So.2d at 73. As the licensees articulate the argument: “[E]ach one of the class members would have to be examined as to their subjective state of mind and the extent of each class member’s knowledge when they rented the automobile from one of the five Alabama Licensees.” Brief of licensees, at 30 (emphasis added).

In its certification order, the trial court stated that it found no “ambiguity which necessitates or which could be resolved through extrinsic evidence.” Nevertheless, Avis and the licensees contend that the contracts are ambiguous as to their right to collect the surcharge and the re-coupment from renters. They argue that the three documents Heilman and Meyer received — the rental document, the rental jacket, and the return record — constitute the entire contract. The ambiguity arises, they argue, out of the rental jacket, which contains the “rental terms and conditions.” The rental jacket does not mention the recoupment at all, and, in § 6, mentions “tax-related surcharges” in the context of “all sales, use, rental, and excise taxes.” They reason that the absence of any reference in the rental terms and conditions to the recoupment, combined with the itemized charge for the recoupment on the rental document and the return record, creates an ambiguity as to whether the customers agreed to pay the recoupment.

Similarly, Avis and the licensees reason that, although the rental document and the return record both itemize the surcharge, and although § 6 of the rental terms and agreements authorizes them to charge a “tax-related surcharge,” the surcharge might not be a “tax-related surcharge,” as that term is used in § 6. The phrase “tax-related surcharge” could, in other words, be construed as referring only to the species of taxes specifically listed in § 6, namely, “all sales, use, rental, and excise taxes.” On the other hand, Avis and the licensees insist, the phrase could be construed as authorizing a surcharge, based on any species of tax that would constitute ordinary overhead, such as, sales taxes, ad valorem taxes, income taxes, or employee-withholding taxes. These ambiguities, they insist, will require testimony from each class member regarding the intent of the member as to the surcharge and the recoupment. They contend that these inquiries will overwhelm the common questions of law or fact, thus rendering class-action treatment of the breach-of-contract claims inappropriate. We disagree.

Not every ambiguity in contract terms necessitates extrinsic evidence. Recently, in the class-action context, we explained:

“When a trial court is [faced] with a contract issue, it is important for the trial court to determine as soon as practicable the ‘threshold issue’ whether the contract is ambiguous. If the trial court determines that there is no ambiguity, it must ‘ “determine the force and effect of the terms of the contract as a matter of law.” ’ Cherokee Farms, Inc. [v. Fireman’s Fund Insurance Co.], 526 So.2d [871] at 873 [(Ala.1988)], quoting Wigington v. Hill-Soberg Co., 396 So.2d 97, 98 (Ala.1981). However, if the trial court finds the contract to be ambiguous, it ‘must employ established rules of contract construction to resolve the ambiguity.’ Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). If the application of such rules is not sufficient to resolve the ambiguity, factual issues arise:
“ ‘If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.’
“Id. at 949. Where factual issues arise, the resolution of the ambiguity becomes a task for the jury. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853 (Ala.1991).”

Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 404-05 (Ala.2001).

We agree with the trial court to the extent that it found that the transaction documents contained no “ambiguity which necessitates or which could be resolved through extrinsic evidence.” Regarding the recoupment, it is clearly itemized on the rental document and the return receipt. The complete absence of any reference to the recoupment, or to an arguably related species of charge, on the rental jacket does not create an ambiguity.

The surcharge is only slightly more problematic. An ambiguity exists where contract terms are “reasonably susceptible to two or more constructions or there is reasonable doubt or confusion as to their meaning.” Johnson, 822 So.2d at 404. However, a contract is not ambiguous simply “ ‘because the parties allege different constructions of [it].’ ” Ex parte University of South Alabama, 812 So.2d 341, 345 (Ala.2001) (quoting Yu v. Stephens, 591 So.2d 858, 859 (Ala.1991)).

Heilman and Meyer argue that the rental contract is not ambiguous insofar as the surcharge is concerned. The allegation of ambiguity is made by Avis and the licensees, who drafted the transaction documents. Although they have succeeded in articulating possible alternative meanings for the term, they have identified no ambiguity that cannot be resolved by ordinary canons of construction, such as ejusdem generis and noscitur a sociis.

The predominant question in this case is simply whether the recoupment and the surcharge were authorized by the terms of the written contract, which consists of the three relevant documents. That question and the facts necessary to its resolution are common to the claims of Heilman, Meyer, and the putative class members, who, like Heilman and Meyer, were neither corporations nor corporate travelers, and who rented vehicles from the defendants. Consequently, the trial court did not err in certifying a class composed of those members for resolution of the breach-of-contract claims.

B. Unjust-Enrichment Claim

Against the certification of the unjust-enrichment claim, however, the “subjective-state-of-mind” arguments of Avis and the licensees stand on better ground. To prevail on a claim of unjust enrichment, the plaintiff must show that the “ ‘defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.’ Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1885, 1387 (Ala.1986)) (some emphasis omitted; some emphasis added). “The doctrine of unjust enrichment is an old equitable remedy permitting the' court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.” Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989) (emphasis added).

“[T]he remedy of restitution is designed to remedy the detrimental effects caused by unjust enrichment.” Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1351 (Ala.1991). “A claim for restitution is equitable in nature, and permits a trial court to balance the equities and to take into account competing principles to determine if the defendant was unjustly enriched.” United Coastal Indus., Inc. v. Clearheart Constr. Co., 71 Conn.App. 506, 513, 802 A.2d 901, 906 (2002) (emphasis added). Consequently, “ ‘[t]he success of a claim for unjust enrichment depends on the particular facts and circumstances of each case.’ ” DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 245, 776 A.2d 413, 419 (2001) (quoting Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 184, 531 A.2d 887, 889 (1987)).

Because unjust-enrichment claims are fact specific to each case, this Court has repeatedly held that such claims are unsuitable for class-action treatment. Funliner of Alabama, L.L.C. v. Pickard, 873 So.2d 198, 211 (Ala.2003) (unjust-enrichment claims based on allegations of “mistake or fraud” require an “individualized inquiry into the state of mind of each plaintiff’); Whitson, 867 So.2d at 1074 (unjust-enrichment claims 'based on an alleged “mistake of fact” could not be certified for class-action treatment, because “[c]lass members would be required to demonstrate mistake of fact on an individual basis”); Smart Professional Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1249 (Ala.2002) (“proof essential to support the [class-action plaintiffs’ claims of unjust enrichment ... defeats the predominance and superiority requirements of Rule 23(b)(3)”); Reynolds Metals Co. v. Hill, supra.

This case is no exception. Heilman and Meyer contend that they “have established [payment by] mistake,” and that the conduct of the defendants is “unconscionable.” Brief of Heilman and Meyer, at 51. Under the rationale of Pickard, Whitson, Childers-Sims, and Reynolds Metals, resolution of the unjust-enrichment claim would require an individualized inquiry into the subjective “state of mind” of each class plaintiff and the facts and circumstances surrounding each rental transaction. Pickard, 873 So.2d at 211. This is so, because the “knowledge and sophistication of customers varies from individual to individual.” Whitson, 867 So.2d at 1076. The need for such inquiry defeats the predominance and superiority requirements of Rule 23(b)(3). Smart Professional Photocopy, 850 So.2d at 1252. For these reasons, the trial court erred in certifying the unjust-enrichment claim for class-action resolution.

C. Conspiracy Claim

Avis and the licensees contend that the trial court erred in certifying the conspiracy claim. Specifically, they argue that the complaint does not allege conspiracy to breach a contract. The conspiracy count of the complaint is specifically directed, they insist, to the various species of fraud originally alleged. We agree with these contentions. The complaint merely alleges that “Avis [and the licensees] entered into a conspiracy beginning as early as 1990 to, among other things, suppress the information and/or to make the false representations as aforesaid.” (Emphasis added.)

“A conspiracy cannot exist in the absence of an underlying tort.” Willis v. Parker, 814 So.2d 857, 867 (Ala.2001). “ ‘[Liability for civil conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides no cause of action, then neither does the conspiracy.’ ” Id. (quoting Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala.1993)). The conspiracy claim is not directed to the breach-of-contract claims, and none of the fraud claims were certified for class-action resolution. Therefore, the trial court erred in certifying the conspiracy claim for class-action resolution.

Finally, Avis contends that it has asserted as an affirmative defense the “voluntary payment doctrine,” and argues that the “proof necessary to establish the elements of a voluntary payment defense creates the individualized type of fact inquiries which operate to bar class certification.” Brief of Avis, at 46-47. To be sure, Avis did raise voluntary payment as an affirmative defense in its answer to the complaint. Specifically, it stated: “[Heil-man and Meyer], and each of the class members, voluntarily paid the surcharge and concession fees made the basis of this action and thus are barred from recovery under the voluntary payment doctrine.” In the answer, however, it was posed as a defense to the merits, not as a defense to class certification, as it is presented on appeal. Indeed, Avis never presented such an argument to the trial court.

It is well established that this Court will not “reverse a trial court’s judgment based on arguments not presented to [it].” Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002). See also Pate v. Rollison Logging Equip., Inc., 628 So.2d 337, 343 n. 2 (Ala.1993); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). Consequently, we decline to consider the voluntary-payment argument in opposition to certification of any of the claims involved in this appeal.

III. Summary

The trial court erred in certifying the unjust-enrichment claim and the conspiracy claim for class-action treatment. The court also erred in including in the class corporations and “corporate travelers.” To that extent, the certification order is vacated. The trial court did not err, however, in certifying for class-action treatment the breach-of-contract claims of the “individual renters.” To that extent, the order is affirmed. The case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

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

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

JOHNSTONE, Justice

(concurring in part and dissenting in part).

But for two exceptions, I concur. The first exception is that I do not agree entirely with the holding that “the trial court erred in including corporations and corporate travelers, as that term is used in this opinion, within the class it certified,” 876 So.2d at 1119, and I do not agree with the rationale for that holding. The second exception is that I express no opinion on the holding that “the trial court erred in certifying the unjust-enrichment claim for class-action resolution,” 876 So.2d at 1123.

Some corporations and corporate travelers should remain members of the class— specifically, each (if any) which or who entered, with one or more of the defendants, essentially the same form of contract composed of the same three form documents containing or omitting the same provisions about the tax recovery surcharge and the concession fee recoupment as the class representatives Heilman and Meyer themselves entered. The class contract claim does not entail any individualized dispute or issue about the negotiation or formation of these contracts or any dispute or issue about individualized expectations of the parties. As the main opinion so accurately observes, “[t]he predominant question in this case is simply whether the recoupment and the surcharge were authorized by the terms of the written contract, which consists of the three relevant documents,” 876 So.2d at 1122. As the main opinion also accurately observes, these documents do not contain any “ambiguity which necessitates or which could be resolved through extrinsic evidence,” 876 So.2d at 1121 (quoting the trial court order). Thus I respectfully submit that the judgment of this Court should-be modified to include in the part affirmance an affirmance of the inclusion of corporations and corporate travelers which or who entered contracts not materially different from those entered by the class representatives, within the certified class.

On the other hand, I do agree that corporations and corporate travelers which or who entered contracts materially different from those entered by the class representatives should be excluded from the class. The class representatives are not typical and adequate for the purpose of enforcing contracts materially different from those they themselves entered. For instance, at pages 3 and 4 of their brief to us, the class representatives, who are not “preferred renters,” concede that the “Preferred Renters ... are not eligible to recover any airport concession fee damages.” Yet those preferred renters, concentrating on their own distinct situation, might well perceive that they are due some airport concession fee damages on some theory not developed by the class representatives.

      . Avis describes the relationship of the Avis entities as follows:
      "At the time of the transactions in issue, the Defendant Avis Rent A Car, Inc., was a publicly traded company whose subsidiary, Avis Rent A Car Systems, Inc., operated rental facilities throughout the world. The Defendant, Cendant Corporation, acquired the Avis trademark in 1996, which it licensed to Avis Rent A Car, Inc., as well as licensees. Cendant also operates and maintains the Wizard System, which performs data processing, reservation rental and other related services for both the Avis and licensee owned locations.... Effective March 1, 2001, the Avis entities became wholly owned subsidiaries of Cendant.”
      Brief of Avis, at 6 n. 2.

      . In their answer, the licensees explained that they "individually and separately operate car rental businesses in [Huntsville, Mobile, Birmingham, Dothan, and Montgomery], and [that] each is a separate licensee [or franchisee] of the Defendant [Avis].” Collectively, the licensees own and operate all of the "Avis car rental locations in Alabama.” Brief of licensees, at 4.

      . Heilman and Meyer rented their vehicles in August 1998 and September 1998, respectively.

      . This is especially true of those renters who never see the terms made the basis of the breach-of-contract claims in this case.

      . It is undisputed that Stewart does not have a corporate contract with Avis. Therefore, Heilman is not a corporate traveler, as that term is used in this opinion.

      . "The principle of 'ejusdem generis' provides that 'general words, following the enumeration of particular classes of persons or things, are construed to apply only to persons or things of the same general nature or class as those specifically enumerated.' ” Ex parte Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 834, 842 (Ala.2003) (quoting Lambert v. Wilcox County Comm’n, 623 So.2d 727, 731 (Ala.1993)).

      . "[The doctrine of noscitur a sociis] provides that ‘where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general.' " Ex parte Emerald Mountain Expressway, 856 So.2d at 842-43 (quoting Winner v. Marion County Comm’n, 415 So.2d 1061, 1064 (Ala.1982)).

      . In this Court, the licensees do not argue that the voluntary-payment defense defeats class certification. An argument not made on appeal is abandoned or waived. Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995). "Issues not argued in the appellant's brief are waived.” Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994).

      . Avis and the licensees catalog numerous "individual fact inquiries,” Brief of Avis, at 66, which, they insist, render this class action unmanageable. This argument is thoroughly eviscerated by our conclusion that the class as properly certified will involve (1) no oral agreements, (2) no national contracts, (3) no corporate plaintiffs, (4) no corporate travelers, (5) no standing issues, (6) no unjust-enrichment claims, and (7) no conspiracy claims. In short, there is no sustainable objection on manageability grounds to a properly certified class in this case.


author: LYONS, Justice.

text:
    SERRA TOYOTA, INC., and Donnell St. Charles v. Rebecca JOHNSON.
    1021051.
    Supreme Court of Alabama.
    Sept. 19, 2003.

      Cecil H. Macoy, Jr., and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants.
    Ronald Austin Canty of Beasley, Alen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   LYONS, Justice.

Serra Toyota, Inc., and Donnell St. Charles appeal from the trial court’s order denying their motion to compel arbitration. We reverse and remand.

In November 2001, Rebecca Johnson purchased a used 1999 Toyota Avalon automobile and a used 1992 Toyota Camry automobile from Serra Toyota. St. Charles was the salesperson who sold the automobiles to Johnson. Johnson executed a contract entitled a “Retail Buyers Order” in connection with the purchase of each vehicle. Those contracts contained identical arbitration agreements. The arbitration agreements state:

“The Undersigned Purchaser [Johnson] and Seller [Serra Toyota], voluntarily WAIVE ANY RIGHT TO A JURY TRIAL, and further agree as follows:
“(1) That the motor vehicle described in this sale document has been heretofore traveling in interstate commerce and has an impact upon interstate commerce.
“(2) That in the event of any dispute(s), between the parties hereto or in the event of any dispute(s) arising out of or related to this contract, (including but not limited to the terms of the agreement, the condition of the motor vehicle sold, the conformity of the motor vehicle sold to the contract, the representations, promises, undertakings or covenants made by the Seller, Inc. in connection with the sale of the motor vehicle, or otherwise dealing with a motor vehicle; any terms of financing in connection therewith, or any terms of any credit life and/or disability insurance purchased simultaneously herewith, or extended service or maintenance agreements), that Seller, and the purchaser agree to submit such dispute(s) to binding arbitration, pursuant to the provisions of 9 U.S.C. 1, et seq. and according to the commercial rules of the American Arbitration Association then existing in Alabama.
“(3) That in the event any dispute arises between purchaser and seller, its officers, agents and employees, the said dispute will be submitted to binding arbitration pursuant to 9 U.S.C. et seq. and according to the commercial rules of the American Arbitration Association then existing in Alabama.”

(Capitalization in original.)

Johnson says that when she purchased the automobiles, she told St. Charles specifically that she was not interested in purchasing an automobile that had previously been involved in an accident; she says that she was told that the automobiles she was purchasing were in good condition and that they had never been involved in an accident. According to Johnson’s complaint, five days after she purchased the automobiles she took them to have repairs performed and discovered that both automobiles “had been seriously damaged in accidents prior to her purchase of said automobiles and this fact was not disclosed to [her] at the time of purchase.”

Johnson sued Serra Toyota and St. Charles, alleging fraudulent misrepresentation, fraudulent suppression, breach of contract, conspiracy, and negligent or wanton hiring, training, and supervision. Serra Toyota moved to compel arbitration, supporting its motion with an affidavit from Paul Nuckles, its finance manager. Nuckles stated in his affidavit that both automobiles purchased by Johnson were manufactured outside Alabama; that Johnson received a “Toyota Certified Used Vehicle Limited Warranty” on the 1999 automobile provided through Fidelity Warranty Services, Inc., located in Florida; that before Johnson purchased the automobiles, Serra Toyota checked the Camry’s vehicle history with an Internet service called “Autocheck,” which reflected that through January 1997 the Camry had been owned by someone in Illinois; that Serra Toyota acquired the Avalon from Regions Bank, paying for the automobile with a check sent .to Regions Bank’s office in Pittsburgh, Pennsylvania; and that Serra Toyota obtained a credit report on Johnson from “Trans Union” in Chester, Pennsylvania. Nuckles attached to his affidavit copies of both sales contracts, the warranty on the Avalon, the Autocheck report on the Camry, and a copy of the check Serra Toyota had written to Regions Bank to pay for the Avalon. St. Charles joined in Serra Toyota’s motion to compel arbitration.

In response to the motion to compel arbitration, Johnson filed only a brief; she did not submit any evidence. She stated in her brief that she and both defendants were all Alabama residents. She argued that she should not be compelled to arbitrate her claims against Serra Toyota and St. Charles because, she argued, her transactions did not have a substantial effect on interstate commerce and because the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), “does not preempt state contract defenses.” In support of her argument that her transactions did not substantially affect interstate commerce, Johnson relied upon this Court’s decision in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). Johnson also argued that the arbitration provision in the contracts she signed was unconscionable because, she says, she did not have a meaningful choice, the arbitration agreements did not meet the basic elements of a contract, the American Arbitration Association is biased in favor of institutions that form its client base, and the arbitration clause is “buried” in the documents she signed.

The trial court concluded that the vehicles were sold to Johnson in “a strictly intrastate transaction” and that “[f]or an intrastate transaction to ‘involve’ interstate commerce within the meaning of the FAA, the defendants must have introduced evidence proving that the plaintiffs purchase of the vehicle involved a transaction that substantially affected interstate commerce.” Based on that conclusion, the trial court denied the motion to compel arbitration.

Serra Toyota and St. Charles argue that Johnson’s purchase of the automobiles substantially affected interstate commerce. They also argue that if those transactions did not substantially affect interstate commerce, this Court should overrule Sisters of the Visitation. Finally, Serra Toyota and St. Charles argue that Johnson did not meet her burden of proving that the arbitration agreements are unconscionable. Johnson argues on appeal, as she did in the trial court, that Serra Toyota and St. Charles did not demonstrate that the transactions at issue substantially affected interstate commerce and that the arbitration agreements are not enforceable because, she says, she did not have a meaningful choice in that she could not purchase an automobile without signing an arbitration agreement, because, she says, the arbitration agreements in this case are unconscionable, and because, she says, the arbitration agreements do not meet the basic elements of a contract.

“This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). 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 the 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.’ Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).

In Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 2040, 156 L.Ed.2d 46 (2003), the United States Supreme Court rejected the test set out in Sisters of the Visitation, supra, stating:

“We have interpreted the term ‘involving commerce’ in the FAA as the functional equivalent of the more familiar term ‘affecting commerce’- — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power....
“... Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948).”

Under Citizens Bank, Serra Toyota and St. Charles were required to prove only that Johnson’s purchase of the subject automobiles involved interstate commerce, in addition to proving the existence of a contract requiring arbitration. After reviewing the affidavit and exhibits submitted by Serra Toyota and St. Charles, we conclude that they introduced sufficient proof of the existence of contracts requiring arbitration and that the transactions involved interstate commerce. See Gayfer Montgomery Fair Co. v. Austin, 870 So.2d 683 (Ala.2003).

The burden then shifted to Johnson to present evidence indicating that the arbitration agreements were invalid. Johnson did not submit any evidence to the trial court. She filed only a brief in which she argued that the agreements were unconscionable, but she did not introduce any evidence to support her arguments. In contending that an arbitration clause is unconscionable, a party opposing a motion to compel arbitration “must submit evidence in some form in order to preserve that contention for appellate review.” Fleetwood Enters., 784 So.2d at 281 (Lyons, J., concurring specially). “Statements in motions and briefs are not evidence to be considered by the trial court in ruling on a motion to compel arbitration.” Tefco Fin. Co. v. Green, 793 So.2d 755, 760 n. 6 (Ala.2001). Because Johnson did not submit evidence in support of her argument that the arbitration agreements are unconscionable, she did not preserve that argument for appellate review.

We therefore reverse the order of the trial court denying arbitration and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Although Nuckles’s affidavit states that Johnson received a warranty on "the 1999 Toyota Camry," the 1999 automobile Johnson purchased was an Avalon, and the copy of the warranty attached to the affidavit reflects that the Avalon was the automobile covered by the warranty.


author: MADDOX, Retired Justice.

text:
    Randall E. ALDRIDGE et al. v. Richard E. OLIVE.
    1020443.
    Supreme Court of Alabama.
    Sept. 19, 2003.
    Rodney B. Slusher, Florence, for appellants.
    Keith M. Collier, Florence, for appellee.
   MADDOX, Retired Justice.

The sole issue presented in this appeal is whether the trial judge, who had granted Randall Aldridge and the other plaintiffs specific performance of a real-estate contract, erred in failing to award incidental damages allegedly suffered as a proximate result of the defendant’s failure to perform.

We believe that a trial court, so long as it does not exceed its discretion, has the power to determine whether to award incidental damages when it orders specific performance of a real-estate sales contract; consequently, based on the particular facts set forth in the record before us, we refuse to disturb the holding of the trial court that the plaintiffs were not entitled to incidental damages.

Facts

Sometime in December 1999, Randall E. Aldridge entered into an oral agreement with Richard E. Olive; pursuant to that agreement Olive was to sell Aldridge a mobile home and 4.86 acres of real property on which the mobile home was located. The purchase price of the mobile home and the real property was $110,000. Under the terms of the oral agreement, Olive was to receive $18,762.13 as a down payment, and Aldridge was to assume a promissory note Olive had executed to First Southern Bank, which was secured by a mortgage on the 4.86 acres, and, in addition, to assume a second promissory note Olive had executed to AmSouth Bank, secured by a security interest in the mobile home.

Aldridge claimed that he was purchasing the 4.86 acres to establish a retail sales lot in a joint venture with SouthTrust Bank in order to sell mobile homes that SouthTrust Bank had repossessed.

One of Aldridge’s main arguments in the trial court and on appeal is that he is entitled to recover incidental damages for the harm he allegedly suffered because Olive refused to timely schedule a closing date. Olive disputes this claim and argues in his brief that “[b]oth parties contend that the other party refused to close as required under the [oral] agreement” but that any failure to close the transaction was caused by other factors and was not Olive’s fault.

In any event, Aldridge sued Olive on February 14, 2001, seeking specific performance of the oral agreement, and in his complaint he sought incidental damages, including lost profits, he claimed he suffered as a direct result of Olive’s failure to perform. In his complaint, he also included counts alleging breach of contract and fraud, and he subsequently amended his complaint to add as plaintiffs Rose Aluminum Products, a corporation; Blackburn Park, LLC; and Southern Housing Services, LLC, which he averred were “wholly owned and/or controlled by the plaintiff, Aldridge.” He claimed that he caused these entities to make the payments to First Southern Bank and AmSouth, respectively, on the promissory notes secured by the land and the mobile home located on the land.

The case was tried on January 15, 2002, without a jury. The court heard oral testimony and also considered deposition testimony of Michael Carrigg, a vice president of SouthTrust Bank. The trial court subsequently rendered a judgment in favor of Aldridge and the other plaintiffs on March 21, 2002, in which it granted specific performance of the oral agreement and also at that time awarded incidental damages of $80,000. But on April 29, 2002, Olive filed a motion for relief from judgment and asked the trial court for additional time to submit additional argument, which the trial court granted.

Pursuant to the trial court’s direction, Olive subsequently filed a brief entitled “Defendant’s Argument,” in which Olive argued, in part, as follows:

“The undisputed testimony offered at trial establishes that the sales price for the Real Property was $110,000.00. Al-dridge was to assume debts to AmSouth Bank and First Southern Bank (in the aggregate of $92,000.00) that were secured by a mortgage on the Real Property, while approximately $18,000.00 was to be paid to Olive in cash. Pending assumption of the AmSouth and First Southern debts and a closing of the transaction, Aldridge was to pay those debts. The undisputed trial testimony further establishes that the transaction was to be closed within approximately 30 days and that an attorney selected by Aldridge would close the transaction. The testimony at trial establishes that Aldridge was unable to assume the Am-South and First Southern debts. The parties both testified that, when assumption of the outstanding obligations became impossible, Aldridge agreed to continue the purchase transaction, and stated that he would pay the outstanding obligations in cash at closing.”

In his brief to the trial court, Olive also argued that Aldridge had been convicted of a felony and that the trial court should view his testimony regarding many of the facts with that conviction in mind. He also argued that Aldridge was an experienced real-estate developer and that Aldridge did not present “any evidence to refute Olive’s documented contention that Aldridge, through his counsel, had failed to close the deal and had made counter-offers at lower prices.” Olive closed his argument by stating, “Consequently, Aldridge is not entitled to the relief sought in the complaint.”

On July 29, 2002, after Olive had submitted his additional argument, the trial court entered an amended judgment, again granting specific performance; in this order, however, it denied the plaintiffs any incidental damages. After Aldridge and the other plaintiffs filed a motion to alter or amend the July 29, 2002, judgment, the trial court, on November 13, 2002, reaffirmed the July 29, 2002, judgment and the court ordered Aldridge to pay Olive $18,762.13 as a down’ payment. Aldridge and the other plaintiffs appealed, and the main issue presented is whether the trial court erred in failing to award incidental damages. We do not believe the trial court erred, and we affirm.

Discussion

Under the applicable scope of review, we must determine whether the trial judge exceeded his discretion in refusing to award any incidental damages when he ordered specific performance of the contract.

This Court, on more than one occasion, has addressed the question whether a party can have “a decree for specific performance and damages for breach of the same contract.” Grayson v. Boyette, 451 So.2d 798, 800 (Ala.1984). In Grayson this Court stated:

“The sole issue remaining, then, is whether, under the instant facts, both an award of damages and a decree of specific performance will lie for the breach of the same contract. Ordinarily, one cannot have a decree for specific performance and damages for breach of the same contract. Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980). This Court has, however, on occasion, allowed both the recovery of damages and ordered specific performance of the same contract. Suter v. Arrowhead Investment Co., Ltd., 387 So.2d 815 (Ala.1980).”

In Gulf Oil Corp. v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980), which was cited in Grayson, this Court said:

“[O]ne cannot have a decree for specific performance and damages for breach of the same contract. Nor may the court award damages for the tort of fraud and misrepresentation and, at the same time, grant specific performance of the agreement. The theories of recovery are inconsistent, both legally and factually, and, therefore, the court’s decree and the jury’s verdict cannot coexist. U.S. Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978).”

388 So.2d at 520. But, see, Anderson v. Wooten, 549 So.2d 40 (Ala.1989), where the trial court granted specific performance and also ordered the payment of incidental damages. On appeal, the Andersons contended that the trial court had erred in awarding incidental damages to Wooten in an equity action where it had ordered specific performance. This Court disagreed. We said, in part:

“The trial court, applying equitable principles, was authorized to make those findings. Suter v. Arrowhead Investment Co., 387 So.2d 815 (Ala.1980); Grayson v. Boyette, 451 So.2d 798 (Ala.1984).
“The trial court granted Wooten, as incidental damages, one half of the profits from the poultry operation, amounting to $8,412.40, as specified in the sales contract; rent for the dwelling on the farm, amounting to $1,984; rent from the peanut allotment, amounting to $992.82; and rent for the hay pasture, amounting to $433.81; totaling $11,823.03. The trial court found, however, that the Andersons were entitled to a set-off for accrued interest on the down payment, which totalled $9,452.02. The trial court then entered a judgment in favor of Wooten for incidental damages in the amount of $2,371.01. We find no error in this aspect of the trial court’s judgment.
“In his cross-appeal, Wooten contends that he is additionally entitled to out-of-pocket expenses, attorney fees for the period between July 24, 1987, and September 21, 1987, and accountant fees. We disagree, and we affirm the trial court’s judgment on the cross-appeal.
“It is within the sound judicial discretion of the trial judge to make findings regarding incidental damages when balancing the equities between the parties in specific performance cases. See, Wray v. Harris, 350 So.2d 409 (Ala.1977). Absent a clear abuse of that discretion, or palpable error, such findings will not be disturbed on appeal.”

549 So.2d at 43-44. In Anderson v. Wooten, the plaintiff made a claim for lost profits, as was made in this case. On that issue this Court said:

“In regard to Wooten’s claims for loss of profits because of his inability to raise peanuts and to expand the poultry production, the trial court in this case did not err in holding that such damages were too speculative, conjectural, and remote because Wooten had no established past experience in raising poultry.
“The Andersons finally contend that the trial court erred in refusing their demand for a jury trial on the issue of damages. In exercising its equitable powers, the trial court awards such incidental damages in an attempt to balance the equities in order to protect the rights of all the parties, and to do complete justice between them. See, Wray v. Harris, [350 So.2d 409 (Ala.1977)].
“A balancing of the equities, by awarding incidental damages to do complete justice between the parties, falls within the equity jurisdiction of the trial court. A jury trial is inappropriate in an equitable action. See, Pugh v. Calloway, 295 Ala. 139, 325 So.2d 135 (1976).”

549 So.2d at 44.

Aldridge’s basic argument in support of his claim that he is entitled to incidental damages is that “[tjhe evidence was ... undisputed that [he] and the other plaintiffs had sustained damages and the amount of said damages as a result of Olive’s breach of his [oral] agreement,” and that the trial court should have awarded him damages in the amount he proved. In his brief to this Court, he states:

“On the issue of Aldridge’s damages, the substance of the plaintiffs testimony is as follows:
“(1) that Aldridge’s damages range between $118,800 and $152,880;
“(2) that said damages were based upon loss of rent and loss of sales commission arising from the loss of a lease and sales agreement the plaintiffs had with SouthTrust Bank;
“(3) that the amount of damages for loss of commission was based on prior sales history of the plaintiff and SouthTrust Bank relative to the sale of mobile homes from the lot and commissions paid thereon;
“(4) SouthTrust Bank terminated its agreement with Aldridge and thereby caused the above-described financial loss to Aldridge due to Olive’s refusal to convey the real property and mobile home;
“(5) that Aldridge told Olive that SouthTrust Bank was terminating its agreement with him because Aldridge could not obtain control of the property;
“(6) that Aldridge had committed $800,000 to the project planned for the property and needed the 4.86 acres for ingress and egress.”

(Aldridge’s brief, pp. 15-16; citations to record omitted.) Aldridge also contends that the record shows, without dispute, that he suffered a loss of rental income and the loss of commissions on sales of the mobile homes that had been repossessed by SouthTrust Bank and that he intended to sell on the property. He says that the trial judge clearly exceeded his discretion by “not awarding the plaintiffs monetary damages” to “place the plaintiffs back in the same position they would have been had Olive closed the transaction within thirty (30) days of the date of the agreement as Olive admitted in his trial testimony he was supposed to do.”

On the other hand, Olive argues that the amount of incidental damages Aldridge and the other plaintiffs allegedly suffered was not undisputed, as they claim. He says that on cross-examination “Aldridge admitted that his damage[s] calculations were based on conjecture and not supported by any evidence.”

We have examined the record and the briefs of the parties, and we are of the opinion that the trial judge did not clearly exceed his discretion in refusing to award Aldridge and the other plaintiffs incidental damages. Furthermore, this Court has said that “[i]n exercising its equitable powers, the trial court awards such incidental damages in an attempt to balance the equities in order to protect the rights of all the parties, and to do complete justice between them,” and further that “[a] balancing of the equities, by awarding incidental damages to do complete justice between the parties, falls within the equity jurisdiction of the trial court.” Anderson v. Wooten, 549 So.2d at 44.

Although Aldridge recognizes the general rule that a party cannot have specific performance of a contract and also damages for breach of the same contract, he argues that “in order to do complete equity and where the damages are incidental to the breach of [the] contract, there are numerous cases where specific performance and the recovery of damages have been allowed.” (Aldridge’s brief, p. 18.) He cites Grayson v. Boyette, supra; Suter v. Arrowhead Inv. Co., 387 So.2d 815 (Ala.1980); and Wray v. Harris, 350 So.2d 409 (Ala.1977), in support of his argument. We agree that this Court, in an appropriate case, has permitted the recovery of incidental damages when specific performance has been ordered, but we must point out that in Wray v. Harris, which Aldridge cites, this Court determined that the plaintiff had not presented any prior records from which to determine the profits of the business; therefore, this Court questioned whether any incidental damages should have been allowed. In Wray v. Harris, this Court stated that the plaintiffs Wray and Hatmaker were starting a new business, and “they had no prior records on which profits could reasonably be based.” 350 So.2d at 414. We believe that the facts of this case are similar to those in Wray v. Harris; therefore, the judgment of the trial court is due to be affirmed.

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

AFFIRMED.

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

      . Under the terms of the oral agreement, the closing was to occur within 30 days of the date of the oral agreement, but Aldridge was to be put in immediate possession of the land and mobile home. Aldridge took possession immediately and remained in continuous possession until this action was filed. Olive claims that the delay in closing was not his fault, and that Aldridge had failed to close the deal and had continued to make counteroffers at lower prices than the $110,000 purchase price.

      . For example, on cross-examination, Al-dridge stated, in part, the following, relating to his claim for damages:
      "Q. Would it be fair to say that the mobile home business over the last few years has gone south, I mean that sales have been bad?
      "A. Absolutely.

      "Q. So you basically sat down and guesstimated some numbers here for average monthly sales that you might have done, and what your expenses might have been.
      "But, any number of a million things could have affected that, couldn't it?
      "A. Always.”

      . In that case, this Court stated:
      "Since we hold that specific performance should be granted, this court must address the issue of damages. The jury in this case awarded the appellants $40,000 in damages, which the trial judge remitted to $25,000. For the reasons given below, we question the necessity of allowing any of these damages on remand.”
      350 So.2d at 413-14.