author: WOODALL, Justice. SEE, Justice

text:
    BROOKFIELD CONSTRUCTION COMPANY and Mohommed Heyat v. Stephen H. VAN WEZEL and Nesta W. Van Wezel.
    1010353.
    Supreme Court of Alabama.
    June 28, 2002.
    John Martin Galese, Jeffrey L. Ingram, and David A. Norris of Galese & Ingram, P.C., Birmingham, for appellants.
    Jesse P. Evans III and Michael B. Odom of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for appel-lees.
   WOODALL, Justice.

Brookfield Construction Company (“Brookfield”) and Mohommed Heyat appeal from an order denying their motion to compel arbitration of their dispute with Stephen H. Van Wezel and Nesta W. Van Wezel. We affirm.

This dispute is between Alabama residents over the construction of a new residence for the Van Wezels. The house was built by Heyat, the owner of Brookfield, a sole proprietorship. The Van Wezels were dissatisfied with Heyat’s workmanship, and they sued Heyat and Brookfield on theories of breach of contract and breach of warranty and on various tort theories. The defendants moved to compel arbitration on the basis of a provision in a “Limited New Home Warranty” issued by Brookfield to the Van Wezels. The trial court denied the motion, and the defendants appealed.

The burden of proof on the party seeking to compel arbitration is well established. “A motion to compel arbitration is analogous to a motion for a summary judgment.” Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999). “The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce.” American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284-85 (Ala.2001) (plurality opinion). See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). “If the party seeking to enforce the arbitration agreement fails to make such a showing, then the opposing party has no burden of resisting arbitration and the motion should be denied.” Brown v. Dewitt, Inc., 808 So.2d 11, 14 (Ala.2001). The disposi-tive issue in this case is whether the defendants met their initial burden of showing that the construction of the Van Wezels’ residence was a transaction that substantially affected interstate commerce, under the five-part test adopted in Sisters of the Visitation.

The test adopted in Sisters of the Visitation focuses on the quantity and quality of involvement of foreign entities with the subject transaction. Specifically, the subjects of inquiry are (1) the “citizenship of the parties,” (2) the origin of any “tools and equipment” actually used in the transaction, (3) the “allocation of cost of services and materials,” (4) the “subsequent movement across state lines” of the “object of the services,” and (5) the “degree of separability from other contracts.” 775 So.2d at 765-67. An analysis applying these factors is “necessarily fact-intensive.” Id. at 765 n. 5.

In some cases, one or more of the factors will evidence no interstate commerce, as where both parties are Alabama residents. In some cases, the factors will demonstrate only a de minimis involvement with interstate commerce. Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002) (plurality). Thus, for this Court to apply the factors enumerated in Sisters of the Visitation, the record must contain more than conclusory statements that the transaction “substantially involved interstate commerce.”

At least three of those factors require specific evidence of the relationship between interstate and local elements of the transaction. More specifically, the second factor cannot support arbitrability unless the record demonstrates the extent to which tools and equipment moving interstate were “leased or purchased specially for the project.” 775 So.2d at 766. The third factor cannot support arbitrability, unless the record demonstrates “what portion of the amount [of the contract price] is allocable to the cost of local labor and overhead and what portion is allocable to materials or services specially purchased for use or consumption in performance of the contract.” Id. (emphasis added). The fifth factor cannot support arbitrability, unless the record demonstrates the extent of the subject transaction’s “impact on other contracts that do substantially affect interstate commerce.” Id. at 767 (emphasis added).

In an attempt to satisfy their burden under Sisters of the Visitation, the defendants submitted Heyat’s affidavit, which stated: “The Plaintiffs’ home was constructed in Shelby County, Alabama in significant part from goods and supplies manufactured out of state and shipped into Alabama for incorporation therein. Various subcontractors were engaged, who traveled in interstate commerce in connection with completing their work on this home.” The defendants’ evidence is insufficient, for the same reasons the evidence in Sisters of the Visitation was insufficient, to prove that the transaction substantially affected interstate commerce.

The parties are Alabama residents, and the object of the transaction, namely, the Van Wezels’ residence, is incapable of moving across state lines. Heyat’s affidavit contains the conclusory allegation that the residence was constructed “in significant part from goods and supplies manufactured out of state and shipped into Alabama for incorporation therein.” The record here, like the record in Sisters of the Visitation, fails to demonstrate “what portion of the amount [of the contract price] is allocable to the cost of local labor and overhead,” and fails to show the extent to which tools and equipment moving interstate were “leased or purchased specially for the project.” 775 So.2d at 766. Heyat’s affidavit also alleges that “Various subcontractors were engaged, who traveled in interstate commerce in connection with completing their work on this home.” However, as in Sisters of the Visitation, the record fails to demonstrate the extent of the construction project’s “impact on other contracts that do substantially affect interstate commerce.” Id. at 767 (emphasis added).

Because the defendants failed to offer specific evidence of the relationship between the interstate and local elements involved in the construction of the Van Wezels’ house, they failed to carry their initial burden of proof on the issue of interstate commerce. See also Morris, supra; Ex parte Kampis, 826 So.2d 819 (Ala.2002); F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607 (Ala.2001). The trial court did not err, therefore, in denying their motion to compel arbitration. Its order is affirmed.

AFFIRMED.

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

MOORE, C.J., concurs in the result.

SEE, J., dissents.

SEE, Justice

(dissenting).

The main opinion states that “[t]he dis-positive issue in this case is whether the defendants met their initial burden of showing that the construction of the Van Wezels’ residence was a transaction that substantially affected interstate commerce, under the five-part test adopted in Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000) ]” (emphasis added). I respectfully dissent.

Background

On or about August 16,1999, Stephen H. Van Wezel and Nesta W. Van Wezel entered into a contract with Brookfield Construction Company to purchase a new house. Brookfield issued a “Limited New Home Warranty” that contained the following arbitration agreement:

“Purchaser and Seller agree that any claim or dispute arising out of this Limited New Home Warranty will be submitted to mediation and in the event no mediation resolution is reached, then to binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect; and that the parties hereto shall be bound by the result thereof.”

Neither party signed the “Limited New Home Warranty.”

On October 24, 2000, the Van Wezels sued Brookfield and its owner, Mohommed Heyat. The Van Wezels alleged in paragraphs 29 and 30 of their complaint that the residence was sold to them with a “Limited New Home Warranty” and that Brookfield and Heyat “have refused to comply with the requirements of any and all warranties, even though the Van Wez-els requested on numerous occasions” that Brookfield and Heyat repair all defects. In their complaint, the Van Wezels also alleged breach of contract, negligence, recklessness, fraud, and suppression.

Brookfield and Heyat moved to compel binding arbitration pursuant to the provisions of the written arbitration agreement. In support of their “Motion to Compel Binding Arbitration,” they filed a supporting brief and the affidavit of Mohommed Heyat. In his affidavit, Heyat stated:

“At all times hereto I have been the owner of Brookfield Construction Company, a sole proprietorship. I was actively involved in all aspects of the construction of the Plaintiffs’ home, described in the Complaint.
“The Plaintiffs’ home was constructed in Shelby County, Alabama in significant part from goods and supplies manufactured out of state and shipped into Alabama for incorporation therein. Various subcontractors were engaged, who traveled in interstate commerce in connection with completing work on this home. The home was constructed according to national building codes promulgated by organizations foreign to Alabama. The Plaintiffs received a limited home warranty in connection with this home. The limited warranty contained an arbitration agreement covering the resolution of all disputes involving any damages from defects in any item covered by the warranty provided to them by me. The Plaintiffs have brought [a] claim against me in this action for an alleged breach of that very written warranty containing an arbitration agreement. A true and correct copy has been attached to the motion to compel arbitration.”

Without explanation, the trial court denied Brookfield and Heyat’s motion to compel arbitration and set the case for trial. Brookfield and Heyat appealed that denial to this Court.

Standard of Review

This Court reviews de novo a trial court’s denial of a motion to compel arbitration. Tefco Fin. Co. v. Green, 793 So.2d 755 (Ala.2001); Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999). This Court has held that “ ‘to prevail on an assertion of arbitrability, the moving party is required to produce some evidence which tends to establish its claim,’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995) (opinion on rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)), and “ ‘has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce,’ Tefco Fin. Co. v. Green, 793 So.2d at 758 (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999))(emphasis added).

Commerce Clause Jurisprudence

In 1824, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 28 (1824), the Supreme Court of the United States addressed the scope of the Commerce Clause. The New York Legislature had granted Ogden a monopoly “right to navigate waters” between Elizabethtown, New Jersey, and New York, New York. Id. Gibbons had infringed that right by operating two ships on the Elizabethtown-New York route, and the New York court had enjoined Gibbons’s operation. The Supreme Court of the United States reversed, finding that navigation was commerce and that Congress’s power over commerce preempted New York’s licensing scheme. Chief Justice Marshall, writing for the Court, stated:

“Commerce, undoubtedly, is traffic, but it is something more: it is intercourse ....
“The subject to which the power is next applied, is to commerce ‘among the several States.’ The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.”

22 U.S. (9 Wheat.) at 189-94. Chief Justice Marshall continued:

“It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States....
“... The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.”

22 U.S. (9 Wheat.) at 194-95. Nonetheless, it was not until 1887 that the passage of the Interstate Commerce Act, 15 U.S.C. § 1, “ushered in a new era of federal regulation under the commerce power.” United States v. Lopez, 514 U.S. 549, 554, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Then, in 1937, in response to the New Deal legislation, the Supreme Court of the United States upheld the National Labor Relations Act and the National Labor Relations Board’s decision to end the practice of discharging employees for union activity. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). The Supreme Court held that intrastate activities could “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions .... ” Id. at 37, 57 S.Ct. 615.

Four years later, the Supreme Court upheld the Fair Labor Standards Act, which regulated the hours and wages of employees engaged in local manufacturing and prohibited the shipment of goods produced by manufacturers that were paying their employees less than the prescribed minimum wage or that were requiring more than the prescribed maximum number of hours of work. United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). In Darby, the Court reaffirmed the notion that substantial intrastate activities could affect interstate commerce. Subsequently, the Supreme Court stated that “[a]ctivities that affected interstate commerce directly were within Congress’ power; activities that affected interstate commerce indirectly were beyond Congress’ reach.” Lopez, 514 U.S. at 555, 115 S.Ct. 1624, citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)(emphasis added).

In 1942, in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), the Supreme Court of the United States held that, under the Commerce Clause, Congress had the power to limit the production of wheat by a farmer who had sowed 23 acres of wheat for consumption on his own farm. The Supreme Court instructed, first, that in weighing the effect of an activity on interstate commerce, courts are to consider the aggregate effect of that type of activity on interstate commerce. 317 U.S. at 124-28, 63 S.Ct. 82; see also Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 277, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Tefco Fin. Co., 793 So.2d at 759. Furthermore, the Wickard Court expressly rejected the earlier “direct-/indirect-effects” analysis of interstate commerce; thus, the Court stated:

“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ ”

317 U.S. at 125, 63 S.Ct. 82. The Wickard Court noted that the fact that Filburn’s contribution to the demand for wheat “may be trivial by itself is not enough to remove him from the scope of federal regulation, where ... his contribution, taken together with that of many others similarly situated, is far from trivial.” Id. at 127-28, 63 S.Ct. 82.

For over 50 years, following Wickard and up until Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626, the Supreme Court did not overturn a congressional act on the basis that the act violated the Commerce Clause. Then, in Lopez, the Supreme Court found that the relationship between the Gun-Free School Zones Act and interstate commerce was too attenuated to find a substantial effect on commerce. Lopez was convicted of possession of a firearm in a school zone in violation of the Gun-Free School Zones Act. Reviewing several Commerce Clause cases, the Court identified three categories of activity Congress may regulate under its commerce power:

“First, Congress may regulate the use of the channels of interstate commerce .... Second, Congress is empowered to regulate and protect the instru-mentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.”

514 U.S. at 558-59, 115 S.Ct. 1624.

The government had argued in Lopez that crime in and around schools has a substantial effect on interstate commerce because “the costs of violent crime are substantial” and “violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.” Id. at 563-64, 115 S.Ct. 1624. The Supreme Court, however, refused to accept the government’s argument because, it reasoned, the Gun-Free School Zones Act had “nothing to do with ‘commerce.’ ” Id. at 561, 115 S.Ct. 1624. Lopez did not overrule Wickard, but instead restricted the application of the Commerce Clause power to matters of commerce.

The Federal Arbitration Act

The Supreme Court of the United States held in Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282 (1932), that the Federal Arbitration Act (“the FAA”) is a constitutional exercise of Congress’s power. The FAA provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. “The [FAA] preempts contrary state law (specifically, contrary law based on Ala.Code 1975, § 8-1-41(3),[] and public policy) and renders enforceable a written predispute arbitration agreement but only if that agreement appears in a contract evidencing a transaction that ‘involves’ interstate commerce.” Southern United Fire Ins. Co. v. Knight, 736 So.2d 582, 585-86 (Ala.1999); see Tefco Fin. Co. v. Green, supra.

The Supreme Court of the United States has broadly interpreted the term “involving commerce” as being the “functional equivalent” of the phrase “affecting commerce.” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 274, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Congress’s use of the phrase “affecting commerce” “normally signals Congress’ intent to exercise its Commerce Clause powers to the full .... ” Id. at 273, 115 S.Ct. 834.

In Sisters of the Visitation v. Cochran, 775 So.2d 759 (Ala.2000), the Sisters of the Visitation contracted with an in-state contractor to renovate a chapel located in Alabama and owned by the Sisters. Pursuant to an arbitration provision in the contract, the Sisters sought arbitration of their dispute with the contractor. In my dissent in that case, I noted that the majority held that the FAA can apply to a contract only if that “individual transaction ‘substantially affect[s]’ interstate commerce.” 775 So.2d at 782. Since our decision in Sisters of the Visitation in March 2000, this Court has routinely denied a party the right to arbitration where that party failed to prove that the individual transaction substantially affected interstate commerce. See Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002) (denying arbitration in an action brought by a purchaser of a condominium unit against a real estate brokerage, real estate agent, and condominium association); Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002) (refusing to compel arbitration where an employee of an insurance company sued her employer); Ex parte Kampis, 826 So.2d 819 (Ala.2002) (denying arbitration in an action brought by a home purchaser against a contractor); Alternative Fin. Solutions, LLC v. Colburn, 821 So.2d 981 (Ala.2001) (denying arbitration where borrowers brought an action against lenders challenging the legality of certain loans); Ex parte Learakos, 826 So.2d 782 (Ala.2001)(denying arbitration in an action brought by a home purchaser against a real estate company and its agents).

The Supreme Court of the United States stated in Lopez that in order for a federal statute that regulates commercial transactions to be a valid exercise of Congress’s Commerce Clause power, the aggregate nationwide participation in that activity— not the individual transaction in isolation-— must “substantially affect” interstate commerce. Lopez, 514 U.S. 556-57, 115 S.Ct. 1624. This “substantial-effect” test — used to determine the constitutionality of a statute under the Commerce Clause — was not a new standard created in Lopez, but has been the test of a statute’s constitutionality since the early twentieth century. Id. at 555-57, 115 S.Ct. 1624.

Once it has been determined that Congress acted within its Commerce Clause power in enacting a statute, whether that statute reaches certain activities does not depend on whether that individual act, when considered separately from all similar acts, has a substantial effect on commerce. As Wickard made clear, Filburn’s “trivial” wheat production could be reached by the Agricultural Adjustment Act. The standard established by the Supreme Court of the United States is that “ ‘where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)).

The standard for the application of the FAA to an individual contract was made clear in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 267, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). The FAA provides in pertinent part that “[a] written provision in ... a contract evidencing a transaction involving commerce ... shall be valid....” 9 U.S.C. § 2 (emphasis added). The Supreme Court of the United States held in Allied-Bruce Terminix that the requirement in the FAA that an individual contract involve interstate commerce should be read in the broadest possible terms because the word “involving” signals “an intent to exercise Congress’ commerce power to the full.” 513 U.S. at 277, 115 S.Ct. 834. The Court also stated that to be subject to the FAA a contract did not have to evidence a transaction that was “ ‘substantially’ interstate.” Id. at 269, 115 S.Ct. 834.

Thus, I believe this Court erred when it held in Sisters of the Visitation that a particular contract, in order to be enforceable under the FAA must, by itself, have a substantial effect on interstate commerce, and this Court errs again today by applying the Sisters of the Visitation standard to this case.

Courts have recognized the substantial impact that the residential housing market has upon interstate commerce. Senior Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1033-34 (11th Cir.1992); Morgan v. Secretary of Housing & Urban Dev., 985 F.2d 1451 (10th Cir.1993). In Kemp, the United States Court of Appeals for the Eleventh Circuit expressly held that the housing market affected interstate commerce:

“Because Congress had a rational basis for amending the Fair Housing Act— namely, the nationwide problem caused by familial status discrimination in the housing market — and because the housing market affects interstate commerce, plaintiffs’ Tenth Amendment claim fails.”

965 F.2d at 1034 (emphasis added).

In Southern Energy Homes, Inc. v. McCray, 788 So.2d 882, 883 (Ala.2000), this Court held that the purchase of a home manufactured in Alabama involved interstate commerce where the home was constructed from parts acquired outside of Alabama. Here, Brookfield and Heyat assert in their brief to this Court that according to the United States Department of Commerce, the gross domestic product for the residential real estate market in the year 2000 represented over 4% of the gross domestic product and approximately 24% of gross private domestic investment. Moreover, Heyat states in his affidavit that the Van Wezels’ house was constructed

“in significant part from goods and supplies manufactured out of state and shipped into Alabama for incorporation therein. Various subcontractors were engaged, who traveled in interstate commerce in connection with completing work on this home. The home was constructed according to national building codes promulgated by organizations foreign to Alabama.”

Therefore, although it is undisputed that the contract for the sale and construction of the Van Wezels’ house is a transaction that occurred within Alabama, Brookfield and Heyat have presented the requisite “ ‘some evidence which tends to establish [their] claim,’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d at 1265 (opinion on rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. at 345), that the construction of the Van Wezels’ house, considered in the aggregate, substantially affects interstate commerce.

Brookfield and Heyat have shown that the “Limited New Home Warranty” provides, for binding arbitration. Although the Van Wezels did not sign the warranty, the arbitration provision is nevertheless enforceable because the Van Wezels have brought a claim alleging a breach of that agreement. Ex parte Dyess, 709 So.2d 447, 451 (Ala.1997) (stating that a party who seeks the benefits of a contract is bound by all provisions of the contract, not just those he chooses to enforce).

The trial court should have enforced the written arbitration agreement contained in the “Limited New Home Warranty.” I would reverse the trial court’s order denying the motion to compel arbitration and remand the case for compliance with the arbitration agreement in the “Limited New Home Warranty.”

      . The arbitration proponent must demonstrate a substantial nexus with interstate commerce in order to render the arbitration clause enforceable through the Federal Arbitration Act, 9 U.S.C. § 1 etseq.

      . Rule 4(d), Ala. R.App. P., effective October 1, 2001, provides: “An order granting or denying a motion to compel arbitration is ap-pealable as a matter of right, and any appeal from such an order must be taken within 42 days (6 weeks) of the date of the entry of the order, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure.”

      . In NLRB v. Jones & Laughlin Steel Corp., the National Labor Relations Act was challenged in its entirety as an attempt to regulate not only commerce but all industry; however, the Court addressed only the actions that burdened or obstructed commerce.

      . Filbum had challenged the constitutionality of the Agricultural Adjustment Act, which established a wheat-acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat per acre. Wickard, 317 U.S. at 114, 63 S.Ct. 82.

      . In Sisters of the Visitation v. Cochran, 775 So.2d 759, 764 (Ala.2000), the case on which the majority relies for its decision, a majority of this Court, interpreting Wickard, stated:
      "[W]e conclude that the question whether the actions of an individual, which actions standing alone would be considered ‘local’ actions or actions with only an ‘indirect’ influence on interstate commerce, may be considered to have a substantial influence on interstate commerce is to be determined by considering how critical the regulation of all similarly situated persons’ activity is to the accomplishment of the primary purpose of a statute drawn to regulate an activity clearly having a substantial effect on interstate commerce.”
      Thus, in Sisters of the Visitation this Court purported to modify the United States Supreme Court's Wickard decision to exclude local or indirect effects unless those effects are sufficiently ''critical” to the primary purpose of the statute. In the language recited from Wickard, the United States Supreme Court expressly rejected this kind of direct-indirect analysis; it was rejected for good reason because of the infinite malleability of the concept of directness. Wickard, 317 U.S. at 125, 63 S.Ct. 82.

      .Justice Kennedy, concurring specially, and joined by Justice O’Connor, said that the Gun-Free School Zones Act "upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power ...." Lopez, 514 U.S. at 580, 115 S.Ct. 1624 (Kennedy, J., concurring specially).

      . The Court noted that if the Gun-Free School Zones Act passed constitutional muster, "it is difficult to perceive any limitation on federal power .... ” 514 U.S. at 564, 115 S.Ct. 1624.

      . Alabama Code 1975, § 8-1-41(3), makes void any agreement to arbitrate future, as opposed to present, disputes.

      . The arbitration agreement requires that the parties submit their dispute first to mediation and then, if the dispute is not resolved by mediation, to binding arbitration.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Wanda FITTS v. Betty Gail STOKES. Betty Gail Stokes v. Wanda Fitts.
    1010945 and 1010946.
    Supreme Court of Alabama.
    June 28, 2002.

      Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville, for appellant/cross-appellee Wanda Fitts.
    Luke E. Alexander, Russellville, for ap-pellee/cross-appellant Betty Gail Stokes.
   LYONS, Justice.

Betty Stokes filed an action seeking to eject Wanda Fitts from the former marital residence of Betty Stokes and Stokes’s ex-husband Richard Fitts. The trial court ordered Stokes to execute a quitclaim deed transferring Stokes’s interest in the property to Fitts’s estate; it ordered Fitts’s estate to pay Stokes one-half of the equity in the property. Both Fitts and Stokes appealed.

Facts

The facts are undisputed. On August 18, 1997, the real estate at issue in this action was deeded to Richard Fitts and his then wife, Betty Stokes, then Betty Gail Fitts, as joint tenants with right of surviv-orship. On August 3, 1999, Richard Fitts and Betty Stokes were divorced. The trial court incorporated into the judgment of divorce the following provision of a settlement agreement between Richard Fitts and Betty Stokes:

“[Richard Fitts] shall have possession of the former marital home of the parties located at 277 Hwy. 44, Russellville, Alabama. The property is subject to a mortgage to Citizens Bank & Savings Company and [Richard Fitts] shall assume the indebtedness thereon and make the payments when due and hold [Betty Stokes] harmless therefrom and from any other liability of any kind arising on or from the said property. In addition, [Richard Fitts] shall, within 6 months of the date the divorce becomes final, get the Bank to remove [Betty Stokes’s] name from the note and mortgage. At that time, [Betty Stokes] will execute a quitclaim deed to [Richard Fitts] for her 1/2 interest in the property. In the event that [Richard Fitts] is unable to get the Bank to remove [Betty Stokes] from the note and mortgage, then [Richard Fitts] will continue to make the payments and continue to hold [Betty Stokes] harmless [for] any liabilities thereon. At such time as [Betty Stokes’s] name is removed from the indebtedness, then she shall execute a quitclaim deed to [Richard Fitts] for her 1/2 interest in the said property. In the event that [Richard Fitts] is unable to make the payments for whatever reason, then he will convey his interest in the house and property to [Betty Stokes] before foreclosure of the mortgage, and she shall be responsible for any remaining payments.”

Richard Fitts died on May 14, 2000. In the interim, between the time of his divorce from Betty Stokes on August 3, 1999, and his death, Richard Fitts married Wanda Fitts; they were married at the time of his death. At the time of his death, Richard Fitts had not obtained the release of Betty Stokes from the note and the mortgage. The mortgage payments were current at the time of Richard Fitts’s death, and Wanda Fitts has continued to make those payments subsequent to Richard Fitts’s death.

In her action seeking to eject Wanda Fitts from the property, Betty Stokes claimed that the joint tenancy with right of survivorship she held with Richard Fitts was undisturbed by the divorce judgment. Moreover, Stokes argued that because Fitts had died without having her name removed from the mortgage, she took his interest in the property by virtue of her right of survivorship. Wanda Fitts argued that the divorce judgment terminated the joint tenancy with right of survivorship between Betty Stokes and Richard Fitts and left them tenants in common. Fitts argued that, as the representative of Richard Fitts’s estate, she took his one-half interest in the property upon his death and that Betty Stokes owned the other one-half interest in the property. Wanda Fitts contended that so long as Stokes’s name remained on the mortgage and Richard Fitts’s heirs or successors made the mortgage payments, Stokes and Wanda Fitts would each continue to hold one-half interest in the property as tenants in common.

On September 7, 2001, the trial court issued its order in Betty Stokes’s ejectment action. The trial court found that Wanda Fitts and Betty Stokes each owned a one-half interest in the property as tenants in common. The trial court then ordered that the property be sold and the proceeds divided. Neither party had requested that the property be sold. Both Wanda Fitts and Betty Stokes filed motions in the trial court to alter, amend, or vacate the order; the trial court denied both motions. Both Wanda Fitts and Betty Stokes appeal from the trial court’s order denying their respective motions to alter, amend, or vacate the trial court’s order.

Standard of Review

The operative facts are undisputed. Thus, the ore tenus rule has no application. Brooks v. Resolution Trust Corp., 599 So.2d 1163, 1164 (Ala.1992). “This Court’s review of the application of the law to the undisputed facts is de novo.” Lyons v. Norris, 829 So.2d 748, 750 (Ala.2002).

Discussion

It is undisputed that before their divorce, Richard Fitts and Betty Stokes owned the property in question as joint tenants with the right of survivorship. Thus, the question is whether the divorce judgment extinguished the joint tenancy with the right of survivorship. If the joint tenancy was not extinguished, Betty Stokes owned the entire interest in the property upon the death of Richard Fitts by virtue of her right of survivorship. If the divorce judgment extinguished the joint tenancy, both Wanda Fitts and Betty Stokes would have a one-half interest in the property as tenants in common.

A divorce judgment alone does not automatically destroy a joint tenancy with the right of survivorship. Watford v. Hale, 410 So.2d 885, 886 (Ala.1982); Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356, 357-58 (1970); Kirven v. Reynolds, 536 So.2d 936, 938 (Ala.1988). However, “the parties themselves, or the court with the parties before it, may terminate the estate and, when they do ... a tenancy in common is created in the property, without a right of survivorship in either party.” Watford, 410 So.2d at 886; Reynolds, 536 So.2d at 938.

In Watford, this Court held that a property settlement incorporated in a divorce judgment that called for the sale of the property upon the agreement of the parties severed the joint tenancy and created a tenancy in common. Thus, when the husband died intestate four years after the divorce and before either party had taken any action to sell the property, his ex-wife did not take the entire interest in the property by right of survivorship, because the joint tenancy had been extinguished, as evidenced by the intent of the parties reflected in the property settlement incorporated in the divorce judgment. Instead, the ex-wife and the decedent’s estate each held a one-half interest in the property as tenants in common. 410 So.2d at 886.

The divorce judgment in this case evidences a similar intent by Betty Stokes and Richard Fitts to sever their joint tenancy with the right of survivorship. The parties anticipated that Richard Fitts would gain the entire interest in the property upon the removal of Betty Stokes from the mortgage or that Betty Stokes would gain the entire interest in the property in the event that Richard Fitts was unable to make the mortgage payments. Moreover, the property settlement refers to each party’s “one-half interest” in the property. Gone is the concept, peculiar to joint tenancy, of ownership of “some equal share while at the same time each owns the whole.” Porter v. Porter, 472 So.2d 630, 634 (Ala.1985). “ ‘The entire tenor of those provisions of the agreement pertaining to this property is inconsistent with any purpose of the parties to continue the right of survivorship, which is the sine qua non of joint tenancy.’ ” Watford, 410 So.2d at 886, quoting Mann v. Bradley, 188 Colo. 392, 395, 535 P.2d 213, 215 (1975). Thus, the property settlement between Richard Fitts and Betty Stokes incorporated in their divorce judgment extinguished their joint tenancy and created a tenancy in common. ,

Our analysis does not end here, however, because the trial court, after determining that Betty Stokes and Wanda Fitts, as representative of Fitts’s estate, each had a one-half interest in the property as tenants in common, ordered Betty Stokes to execute a quitclaim deed to Fitts’s estate deeding her interest in the property to the estate upon the payment by the estate of one-half of the equity in the property. The trial court further ordered that if Fitts’s estate failed to make such a payment, the clerk of the circuit court was to conduct a public sale of the property and divide the proceeds between Stokes and Fitts’s estate.

“After a lapse of thirty days from the date of a divorce decree a court cannot modify a property settlement provision except to correct clerical errors.” Ex parte Kirkley, 418 So.2d 118, 120 (Ala.1982); Smith v. Smith, 606 So.2d 164, 165 (Ala.Civ.App.1992). The trial court’s order, requiring Stokes to execute a quitclaim deed to Fitts’s estate for her interest in the property and requiring Fitts’s estate to pay Stokes one-half of the equity in the property constituted a modification of the earlier property settlement. The property settlement provision relating to the property was incorporated into the divorce judgment on August 3, 1999, more than 30 days before the trial court’s September 7, 2001, order. Thus, the trial court lacked jurisdiction to modify the property settlement. Smith, 606 So.2d at 165.

We affirm the judgment insofar as it concludes that the joint tenancy between Richard Fitts and Betty Stokes was extinguished by the divorce judgment. In all other respects, we reverse the judgment. The interests of the parties in the subject property are governed by the applicable provisions of the divorce judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: HOUSTON, Justice. MOORE, Chief Justice

text:
    Whitney M. RATLIFF v. CITIZENS BANK OF MOULTON.
    1010763.
    Supreme Court of Alabama.
    June 28, 2002.
    Whitney M. Ratliff, pro se.
    Robert V. Wood, Jr., and Ruth O. Priest of Spurrier, Rice, Wood & Hall, Huntsville, for appellee.
   HOUSTON, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

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

MOORE, C.J., concurs in part and dissents in part.

JOHNSTONE, J., dissents.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in this Court’s decision to affirm the trial court’s dismissal of Ratliffs petition for a restraining order and count I of his complaint; however, I dissent from this Court’s decision to affirm the trial court’s order compelling arbitration.


author:
HOUSTON, Justice.
      JOHNSTONE, Justice

text:
    Carl D. PALMORE v. FIRST UNUM et al.
    1010802.
    Supreme Court of Alabama.
    June 28, 2002.

      Jeff S. Daniel of Jackson & Shuttles-worth, P.C., Birmingham; David Hodge of Kuykendall & Associates, Birmingham; and Carl E. Chamblee, Jr., and William H. Weems, Jr., of Chamblee, Ennis, Weems & Malone, L.L.C., Birmingham, for plaintiff.
    Henry T. Morrissette and Windy Cock-rell Bitzer of Hand Arendall, L.L.C., Mobile; William J. Kayatta, Jr., of Pierce Atwood, Portland, Maine; and Mark Schmidtke of Hoeppner Wagner & Evans, L.L.P., Valparaiso, Indiana, for defendants.
    Forrest S. Latta and Chad C. Marchand of Pierce, Ledyard, Latta, Wasden & Bow-ron, P.C., Mobile; and Joana S. Ellis of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association, in support of the defendants.
    Duncan B. Blair and Frances King Quick of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for amici curiae Blue Cross Blue Shield of Alabama and Business Council of Alabama, in support of the defendants.
    Patrick Nakamura of Nakamura, Quinn & Walls, L.L.P., Birmingham, for amici curiae Health Insurance Association of America, American Association of Health Plans, American Benefits Council, and Association of Alabama Life Insurance Companies, in support of the defendants.
   HOUSTON, Justice.

The United States District Court for the Northern District of Alabama has certified the following question to this Court:

“Is the Alabama tort of bad faith, as codified in [Ala.Code 1975,] § 27-12-24, and as previously existed before its codification, a law which (a) is limited solely to insurers; and (b) constitutes a regulation of the insurance industry under Alabama law?”

We initially accepted the certified question. However, guided by an acknowledgment of the proper boundaries between state and federal courts, our analysis compels us now to decline to answer this question.

At first glance, the certified question appears to invoke an analysis purely under Alabama law; indeed, this is precisely what the plaintiffs argue — that the question should be answered without regard to the federal statutory context from which it arose. However, such an answer would be somewhat disingenuous, given the federal district court’s following summarization of the relevant facts and circumstances that provide the foundation for its certified question:

“The plaintiff seeks to recover benefits arising out of and related to an ERISA welfare benefit plan — more specifically a disability insurance policy issued by defendant [First] Unum — thus causing the plaintiffs claim to be preempted by ERISA. However, the plaintiff also seeks punitive damages based on the defendant’s alleged bad faith failure to pay.
“The plaintiff was employed by non-party Reliance Electrical Company for approximately sixteen years. Due to on the job exposure to numerous harmful substances, the plaintiff now suffers from various debilitating conditions. The plaintiff applied for and received benefits under a long term disability plan. The plaintiff alleges that [First] Unum unilaterally and wrongfully canceled his benefits under the applicable disability policy in December of 2000.
“On December 27, 2001, the Eleventh Circuit Court of Appeals issued its opinion in Gilbert v. Alta Health & Life Ins. Co., [276 F.3d 1292] (11th Cir.2001), which reversed in part this court’s opinion in that case, Gilbert v. Alta Health & Life Ins. Co., 122 F.Supp.2d 1267 (N.D.Ala.2000). The Gilbert opinion from the Eleventh Circuit has not yet been issued as a mandate. The court’s June 29, 2001, opinion in this case was based on its opinion in Gilbert, 122 F.Supp.2d 1267.
“ERISA preempts state laws ‘insofar as they may ... relate to any employee benefit plan.’ 29 U.S.C. § 1144(a). An ‘employment benefit plan’ is ‘(1) a plan, fund or program (2) established or maintained (3) by an employer ... (4) for the purpose of providing ... benefits ... (5) to participants or their beneficiaries.’ Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir.1982).
“The ERISA savings clause found in 29 U.S.C. § 1144(b)(2)(A), states: ‘[N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance.... ’ Thus, the crucial question with which this and other courts have been faced is whether Alabama’s tort of bad faith refusal to pay benefits, codified in § 27-12-24, Code of Alabama 1975, is a law ‘which regulates insurance.’ ”

This summarization — provided pursuant to our procedure for submitting certified questions to this Court, see Rule 18(d), Ala. R.App. P. — makes clear not only that the crux of the certified question is the interpretation of the phrase “regulates insurance,” but also that any relevant analysis of the phrase necessarily involves the interpretation of a federal statute, namely, 29 U.S.C. § 1144(b)(2)(A), ERISA’s savings clause.

In order for this Court to consider a certified question from a federal court, the question must be, among other things, “determinative of [the underlying] cause.” Rule 18(a), Ala. R.App. P.; see Greene v. Massey, 384 So.2d 24, 27-28 (Fla.1980) (refusing to answer a certified question that would not be “determinative of the cause”); Committee Comments, Rule 18, Ala. R.App. P. (noting that “Rule 18 is based upon the Florida Appellate Rules, § 4.61 [now Fla. R.App. P. 9.150, which allows certification of a question if the ‘answer is determinative of the cause’]”). This requirement correctly leads us to view the question presented in its proper context, lest our answer resemble an opinion on an abstract point of law irrelevant to the underlying case. See, e.g., Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 651, 309 So.2d 424, 429 (1975) (stating that “[i]t has long been the law of this State that courts will not decide moot, abstract or hypothetical questions”). The plaintiffs apparent suggestion that we should analyze a certified question in a vacuum is negated by the existence of Rule 18(d), which requires that a federal court’s certification of a question “shall contain the style of the case [and] a statement of facts showing the nature of the cause and the circumstances out of which the questions or propositions of law arise.... ” Such information would be not only wholly unnecessary but also potentially corrupting if our analysis demanded complete insulation from context.

The defendants and the amici curiae argue that we should decline to answer this certified question, because no answer that we could give would be determinative of the underlying cause. We agree.

Authoritative interpretation of federal statutory language is ultimately declared by the federal courts. See, e.g., Tafflin v. Levitt, 498 U.S. 455, 465, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990) (noting that federal courts are not bound by state court interpretations of federal civil RICO statute); Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473 (5th Cir.1992) (“It is beyond cavil that we are not bound by a state court’s interpretation of federal law regardless of whether our jurisdiction is based on diversity of citizenship or a federal question.”). In that respect, the United States Court of Appeals for the Eleventh Circuit has not been silent with regard to the issue before us. Relying primarily on the United States Supreme Court’s decision in Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), the Eleventh Circuit has repeatedly (and very recently) held that, under its interpretation of the phrase “regulates insurance” as used in the ERISA savings clause (a federal statute), our tort of bad faith does not “regulate insurance” and therefore is not saved from preemption. Walker v. Southern Co. Servs., Inc., 279 F.3d 1289, 1291-94 (11th Cir.2002); Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292, 1296-1301 (11th Cir.2001); Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1215 (11th Cir.1999); Amos v. Blue Cross-Blue Shield of Alabama, 868 F.2d 430, 431-33 (11th Cir.1989); Belasco v. W.K.P. Wilson & Sons, Inc., 833 F.2d 277, 279-81 (11th Cir.1987).

Furthermore, relevant to the first issue in the certified question, in the most recent of these decisions the Eleventh Circuit reaffirmed this conclusion while assuming that our tort of bad faith is “limited solely to insurers.” See Walker, 279 F.3d at 1293 (stating that the tort is “only applicable to insurance cases” (citing American Cast Iron Pipe Co. v. Williams, 591 So.2d 854, 857 (Ala.1991))); Gilbert, 276 F.3d at 1297 n. 7 (noting that “Alabama ... has apparently ‘identified its law of bad faith with the insurance industry’ ” (quoting Pilot Life, 481 U.S. at 50, 107 S.Ct. 1549)).

Simply put, we are being asked either 1) to interpret federal statutory language with regard to Alabama’s tort of bad faith using the relevant federal precedent (something that has already been authoritatively accomplished by the United States Court of Appeals for the Eleventh Circuit), or 2) to give a meaningless “Alabama interpretation” to a phrase found in a federal statute, which would have no binding force or effect in federal court. Because either option would be an exercise in futility, it is clear that our acceptance of this question was erroneous, and we decline to answer it.

QUESTION DECLINED.

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

JOHNSTONE, J., concurs in part and expresses no opinion in part.

JOHNSTONE, Justice

(concurring in part and expressing no opinion in part).

But for one exception, I concur. The exception is that I express no opinion on footnote 1 to the main opinion, because neither Seafarers’ Welfare Plan v. Dixon, 512 So.2d 53 (Ala.1987), nor Hood v. Prudential Insurance Co. of America, 522 So.2d 265 (Ala.1988), expressly discusses the precise issue of whether the Alabama tort of bad faith constitutes a “law of [Alabama] which regulates insurance” within the meaning of the ERISA savings clause, 29 U.S.C. § 1144(b)(2)(A), although a resolution of this issue may be implicit in the general holding of each of those cases that this tort is preempted by ERISA.

      . Applying Pilot Life, this Court reached the same conclusion in Seafarers’ Welfare Plan v. Dixon, 512 So.2d 53, 54-55 (Ala.1987), and in Hood v. Prudential Insurance Co. of America, 522 So.2d 265, 266 (Ala.1988).

      . See Pittman v. Cole, 267 F.3d 1269, 1291 (11th Cir.2001) (“When the district court formulates its questions to certify to the Alabama Supreme Court, it should not ... seek guidance from the Alabama Supreme Court on any issues of federal law.... '[A] federal court may not certify federal law issues to a state supreme court.' ”) (quoting Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 n. 16 (11th Cir.2000)).

      . We note that general notions of comity raise an additional concern that weighs in favor of our declining to answer this certified question. As stated above, on June 29, 2001, the district court issued a memorandum opinion in this case in which it held, based upon its previous opinion in Gilbert v. Alta Health & Life Insurance Co., 122 F.Supp.2d 1267 (N.D.Ala.2000), that Alabama's tort of bad faith was not preempted by ERISA. The Eleventh Circuit reversed this holding in its Gilbert decision, which was released on December 27, 2001. On January 17, 2002, the district court certified its question to this Court, noting the reversal but stating that the Eleventh Circuit's mandate in Gilbert had not yet been released. We accepted the certified question on February 15, 2002. However, after refusing to hear the Gilbert case en banc, the Eleventh Circuit issued its mandate to the district court on March 22, 2002. The issuance of this mandate (which, of course, binds the district court) raises a serious question regarding the propriety of the outstanding certified question, which is an apparent challenge to the Eleventh Circuit. To say the least, these events place this Court in an unenviable position — a position that at least favors, if not demands, that we decline to answer the certified question.


author: WOODALL, Justice.

text:
    BELMONT HOMES, INC. v. Zannie LAW.
    1010854.
    Supreme Court of Alabama.
    June 28, 2002.

      John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Joseph C. McCorquodale III and J. Charles McCorquodale IV of McCorquo-dale & McCorquodale, Jackson, for appel-lee.
   WOODALL, Justice.

Belmont Homes, Inc. -(“Belmont”), appeals from an order effectively denying its motion to compel arbitration of its dispute with Zannie Law. We reverse and remand.

This dispute arises out of a transaction that occurred on September 22, 1999, in which Zannie Law purchased from American Dream Homes (“ADH”) in Monroe-ville a new mobile home manufactured by Belmont at its Mississippi facilities. That purchase involved the execution on the same day of two instruments. One instrument, styled “Acknowledgment and Agreement” (“the agreement”), was executed by (1) Law, (2) a representative of ADH, which was designated in the Agreement as the “Retailer,” and (3) Linda Con-will — as “Controller” — a representative of Belmont. The other instrument was styled “Manufactured Home Retail Installment Contract and Security Agreement” (the “installment contract”). The installment contract was signed only by Law and by a representative of ADH.

The agreement contained the model number and serial number of the mobile home Law was purchasing. Additionally, as its title implied, it contained various “acknowledgments” of the purchaser. In particular, Law acknowledged receipt of a “packet of materials,” including a “homeowner’s manual,” and a “manufacturer’s warranty and set-up instructions.” Law also acknowledged that ADH was not an agent of Belmont, and that ADH had “dealt with [her] as an independent party.” The agreement also contained an arbitration clause that provided, in pertinent part:

“[A]ny dispute, controversy or claim of any kind or nature which has arisen or may arise between the parties ... (including any dispute, controversy or claim relating to the validity of this arbitration clause), whether arising out of past, present or future dealings between the parties ..., shall be governed by the Federal Arbitration Act and shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration proceedings shall be held at the principal place of business of [Belmont] or at such location as shall be designated by [Belmont], and shall be heard by an arbitrator who is either a (i) retired judge or (ii) practicing attorney who has conducted more than three (3) arbitrations during the preceding five (5) years.”

(Emphasis added.) The agreement also contained the following merger clause: “This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, supersedes any oral or written agreement between the parties with respect to the subject matter hereof and may not be amended or altered except by written agreement signed by the parties.”

The installment contract contained, in addition to the price of the mobile home and the terms of financing, both an arbitration provision and a merger clause. The arbitration clause provided: “All disputes, claims, or controversies arising from or relating to this [contract] or the relationships which result from this [contract], or the validity of this arbitration clause or the entire [contract], shall be resolved by binding arbitration by one arbitrator selected by you with my consent.” The merger clause provided: “This written contract is the only agreement that covers my purchase of the property. This contract can only be modified or amended, or provisions in it waived (given up), by a written modification to this contract signed by you.”

Law subsequently became dissatisfied with her mobile home, and she sued Belmont and ADH. On August 29, 2001, Belmont filed a “Motion to Dismiss or, in the Alternative, Motion to Compel Binding Arbitration and Motion to Stay or, in the Further Alternative, Motion to Transfer Venue.” This motion was accompanied by a brief, the agreement, and an affidavit of Mike Kennedy, the vice president of Belmont. In its brief, Belmont quoted portions of the agreement, particularly the provision requiring arbitration pursuant to the “Commercial Arbitration Rules of the American Arbitration Association.” The brief did not mention the installment contract.

In a “Supplemental Response” to Belmont’s motion, Law “consent[ed] to arbitrate according to the terms of the retail installment contract.” (Some emphasis omitted.) More specifically, she stated:

“Plaintiff agrees with defendant that this case should be arbitrated pursuant to the terms of the arbitration agreement. This arbitration clause in the retail installment contract requires that ‘all disputes shall be resolved by binding arbitration by one arbitrator selected by you with my consent.’ Plaintiff has the burden of beginning the arbitration process. The plaintiff relies upon the retail installment contract’s arbitration clause that requires the arbitrator to be selected with the plaintiff’s consent. This arbitration should be held in accordance with the retail installment contract and security agreement. No [extrinsic] evidence of prior or contemporaneous agreements will be admissible to change, alter or contradict the retail installment contract. See Sherman v. Woerner Magnolia Farms, Inc., 565 So.2d 601, 605 (Ala.1990). All prior and contemporaneous negotiations are deemed to be merged into that writing. Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 601 (Ala.1999) (emphasis in original).
“The retail installment contract was a fully integrated contract that includes all of the terms necessary for the contract, including the described subject home; the buyer; manufacturer; and the seller; and the assignee/finance company; the price in financing terms; and an agreement regarding insurance, the assignment, and the signature of the dealer and the buyer. The retail installment contract includes the only available arbitration agreement.”

(Emphasis added.)

On October 29, 2001, the trial court entered an order, stating, in pertinent part:

“The court ... finds that the defendant’s Motion to Stay and Compel Arbitration is due to be granted, and it is hereby ORDERED that said motion is granted.
“Based on the decision by the Supreme Court of Alabama in Ex parte Palm Harbor Homes, Inc., [798 So.2d 656] (Ala.2001), it is further ORDERED that arbitration shall be held in accordance with the arbitration provision contained in the Retail Installment Contract and Security Agreement.”

(Emphasis added.)

In Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala.2001), this Court held that a “Manufactured Home Retail Installment Contract and Security Agreement,” one of three instruments containing an arbitration provision executed contemporaneously by the purchasers and the retail seller of a mobile home, superseded the other two instruments, because it contained a merger clause. Thus, the trial court essentially agreed with Law that “[t]he retail installment contract includes the only available arbitration agreement.” In other words, because Belmont sought to compel arbitration under the terms of the agreement, rather than under the terms of the installment contract, the trial court’s order, in effect, denied Belmont’s motion to compel arbitration.

The parties disagree as to whether Palm Harbor controls this case. Belmont contends that it is entitled to arbitrate pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as provided in the agreement, while Law contends the Commercial Arbitration Rules are inapplicable, the installment contract having prescribed another procedure. The question on appeal, therefore, is whether Palm Harbor and the merger rules discussed in that case have any application to this case. We hold that they do not.

A “merger clause” is “a clause which states that all oral representations or agreements are merged into and subsumed by the written document of which the clause is a part.” Sunchase Apartments v. Sunbelt Serv. Corp., 596 So.2d 119, 122 (Fla.Dist.Ct.App.1992). “A merger clause operates only to establish that a written agreement is a completely integrated document, into which all prior and contemporaneous negotiations are merged.” Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 601 (Ala.1999). When a contract is integrated, “no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter, or contradict the contractual writing.” Sherman v. Woerner Magnolia Farms, Inc., 565 So.2d 601, 605 (Ala.1990). The merger rule applies as well to prior or contemporaneous writings as to oral agreements. Palm Harbor, supra; Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Ex parte Conference America, Inc., 713 So.2d 953 (Ala.1998); Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala.1997); see also Lakehead Pipe Line Co. v. Investment Advisors, Inc., 900 F.Supp. 234 (D.Minn.1995).

However, the merger rule applies only to contracts between the same parties. Clark v. Compania Ganadera de Cananea, S.A., 94 Ariz. 391, 397, 385 P.2d 691, 695 (1963) (“A preliminary contract, either oral or written, is not merged into a later one unless the two are between the same parties”), opinion supplemented on denial of rehearing, 95 Ariz. 90, 387 P.2d 235 (1963); Farm Bureau Policy Holders & Members v. Farm Bureau Mut. Ins. Co. of Arkansas, 335 Ark. 285, 296, 984 S.W.2d 6, 12 (1998) (“merger [rule could not] apply because the same parties and the same subject matter [were] not involved”); The Nebraskans, Inc. v. Homan, 206 Neb. 749, 750, 294 N.W.2d 879, 881 (1980) (“For a merger to take place, the same parties and the same subject matter must be involved .... ”); Eagle Indus., Inc. v. Thompson, 321 Ore. 398, 413, 900 P.2d 475, 483 (1995); Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex.App.1997) (“Merger happens when the same parties to an earlier agreement later enter into a written integrated agreement covering the same subject matter.”); Foote v. Taylor, 635 P.2d 46, 48 (Utah 1981) (there is no merger “unless the two contracts are between the same parties”).

The “same-party” condition is not satisfied in this case. Belmont was not a party to the installment contract, and it does not rely on the installment contract for its right to arbitrate. Instead, it relies on the agreement, to which it and Law were signatories. It is in this respect that this case differs fundamentally from Palm Harbor.

The subject of the dispute in Palm Harbor was a mobile home manufactured by Palm Harbor Homes, Inc. (“Palm Harbor”), and sold by Southern Lifestyle Manufactured Housing, Inc. (“Southern Lifestyle”), to Jon W. Knapp and Brooke L. Knapp. At issue were three instruments, each containing an arbitration clause, namely, a “Manufactured Home Retail Installment Contract and Security Agreement” (the “security agreement”) and two “free-standing instruments.” 798 So.2d at 658. One of the freestanding instruments was styled “Alabama Arbitration Provision,” and the other was styled “Agreement for Binding Arbitration.” Id. All three instruments were signed by the Knapps and by Southern Lifestyle.

However, Palm Harbor was a signatory to none of the documents. Instead, Palm Harbor relied on a third-party beneficiary theory as the basis for its right to compel arbitration of the Knapps’ claims against it. 798 So.2d at 658-59 n. 1. Significantly, the Alabama Arbitration Provision stated in pertinent part: “The parties further agree that this Arbitration Provision inures to the benefit of and is intended for the benefit of the manufacturer of the mobile home as fully as if the manufacturer were a signatory to the Retail Installment Contract.” Id. at 658 (emphasis in Palm Harbor). Because Palm Harbor’s right to arbitrate was expressly tied to the security agreement, its rights were also subject to the merger clause in that document. But through the merger clause, the security agreement subsumed the contemporaneously executed, freestanding agreements. Consequently, Palm Harbor’s rights were limited to those set forth in the security agreement.

Belmont’s rights are not so limited. Belmont is a signatory, with Law, to a contract containing its own arbitration provision. Moreover, the agreement contains its own merger clause. Therefore, it not only represents an independent agreement between Belmont and Law, but the entire agreement between those two parties.

When an arbitration agreement is enforceable, courts are required to compel arbitration in accordance with the terms of the agreement. Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845 (Ala.2001); Ex parte Messer, 797 So.2d 1079 (Ala.2001). For these reasons, the trial court erred in disregarding the agreement and ordering arbitration under the terms of the installment contract, to which Belmont is not a party. The trial court’s order is, therefore, reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., dissents.

      . The status of Law’s claims against ADH is not readily apparent. In any case, ADH is not a party to this appeal.


author: HARWOOD, Justice.

text:
    Ex parte Bobby MILES. (In re State of Alabama v. Bobby Miles).
    1010971.
    Supreme Court of Alabama.
    June 28, 2002.
    Bobby Miles, pro se.
    Gary W. Alverson, district atty., Colbert County, for respondent.
    Bill Pryor, atty. gen., and E. Vincent Carroll, asst. atty. gen., for respondent.
   HARWOOD, Justice.

Bobby Miles, an inmate of an Alabama correctional facility, acting pro se, petitions this Court for a writ of mandamus directing the trial court to vacate its order denying his Rule 32, Ala. R.Crim. R, petition. Miles asserts that he did not receive notice of the trial court’s denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief until after his 42 days for filing a notice of appeal had expired. We grant the petition.

On October 24, 2001, Miles filed a petition for postconviction relief, pursuant to Rule 32, Ala. R.Crim. P. On November 9, 2001, the State filed a motion to dismiss the petition. On November 16, 2001, the trial court denied Miles’s petition. Miles received notice of the trial court’s denial of his petition by way of a mailing postmarked January 4,. 2002, 49 days after the trial court’s order was entered.

On January 8, 2002, Miles filed a notice of appeal; on that same day he filed a petition for a writ of mandamus with the Court of Criminal Appeals. On January 26, 2002, the Court of Criminal Appeals issued an order dismissing Miles’s appeal, Miles v. State, (No. CR-01-0844, January 25, 2002) — So.2d — (Ala.Crim.App.2002) (table). That order stated, in pertinent part:

“Whereas, the above-referenced appeal has been duly examined and considered by the Court of Criminal Appeals; and
‘Whereas, the Court, having considered the same, has now ordered that said appeal be dismissed as untimely filed;
“Now, therefore, it is hereby certified that a judgment of dismissal was entered in said appeal on this the 25th day of January, 2002.”

On February 8, 2002, the Court of Criminal Appeals entered an order denying Miles’s petition for a writ of mandamus, without an opinion. Ex parte Miles, (No. CR-01-0749, February 8, 2002) — So.2d — (Ala.Crim.App.2002)(table). On February 12, 2002, Miles filed a petition for a writ of mandamus with this Court. See Rule 21(e), Ala. R.App. P. On April 4, 2002, this Court ordered that answers and briefs be filed. Both the Colbert County district attorney and the attorney general filed answers and briefs.

The applicable standard of review to a petition for a writ of mandamus is settled.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

In Ex parte Johnson, 806 So.2d 1195 (Ala.2001), an inmate petitioned this Court for a writ of mandamus directing the trial court to advise him of the disposition of his Rule 32, Ada. R.Crim. P., petition for post-conviction relief. Based upon the facts presented, this Court concluded that, through no fault of his own, the inmate had not received notice that his Rule 32 petition had been denied. Further, because the inmate’s 42-day period in which to appeal had expired, this Court ordered that the trial court vacate its order denying the inmate’s Rule 32 petition, that a new order be entered, and that the inmate receive prompt notice of that order. In making this determination, this Court observed:

“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party’s right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
“ ‘The circuit court’s dismissal of Weeks’s appeal, on the facts presented, lacked one of the fundamental attributes of a fair judicial proceeding — the opportunity for all of the parties to be heard— and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to “usurpation and oppression” by this state’s judicial branch of government if this branch failed to recognize Weeks’s right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.’ ”

806 So.2d at 1196-97 (quoting Ex parte Weeks, 611 So.2d 259, 261-62 (Ala.1992) (citations omitted)).

Based upon our review of the material in Miles’s petition, we conclude that Miles’s receipt of the trial court’s denial of his Rule 32 petition 49 days after that order was entered was through no fault of his own. Further, to not allow Miles an opportunity to file a notice of appeal under these circumstances would violate his clear legal right to procedural due process. Empire Fire & Marine Ins. Co., supra, Johnson, supra. Accordingly, as this Court ordered in Johnson, we direct the trial court (1) to vacate its November 16, 2001, order denying Miles’s Rule 32 petition, (2) to enter a new order on Miles’s petition, and (3) to provide Miles prompt notice of that order.

PETITION GRANTED; WRIT ISSUED.

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

MOORE, C.J., dissents.

      . The envelope bearing the postmark was not included as an exhibit to Miles’s petition to this Court. The Colbert County district attorney and the attorney general argue in their briefs to this Court that Miles had exclusive possession of the envelope and that he had not produced it for this Court’s review. In reply, Miles stated:
      “This order and envelope, showing the January 4, 2002[,] post date, was exhibited to the Alabama Court of Criminal Appeals in petitioner's initial mandamus petition to that court under no. CR-01-0749. 'Petitioner has no means to make copies of documents.’ ”
      We have checked the records as maintained by the clerk of the Court of Criminal Appeals, and we have confirmed that the original envelope was attached to Miles's petition to that court and that the postmark appearing on it was dated January 4, 2002.

      . We note that the Colbert County district attorney attached to its answer and brief an affidavit by Carrie King, a clerk with the Colbert County Circuit Court. King’s affidavit stated, in pertinent part:
      "The order in question ... is dated the 16th day of November, 2001. It is also stamped with the date and time on which it was filed in our office, which was November 16th, 2001[,] at 1:22 p.m. My standard procedure is to mail these orders to the parties as soon as possible after being filed in our office. The check marks next to the respective attorneys['] or parties^] names indicate that a copy of the order was mailed. After making copies of the orders and addressing an envelope to the attorney or party, I place a stamp on the envelope and deposit it with the outgoing mail. An employee of the courthouse then delivers the mail to the U.S. Post Office.
      "I do not have an independent recollection of mailing Mr. Miles[’s] order in this case. I can say, however, that this is my ordinary practice and procedure and I do not recall doing anything other than this with regard to Mr. Miles['s] case.”
      King’s affidavit therefore does not contradict Miles’s assertion that he did not receive the trial court's order until it arrived in an envelope postmarked January 4, 2002. Nor does it state any other mailing that may have been sent to Miles on that date. The check mark opposite Miles's name could represent the mailing of the order on January 4, 2002.