source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    MEDIA GENERAL OPERATION, INC., Publisher of the Tampa Tribune; Orlando Sentinel Communication, Publisher of the Orlando Sentinel, Appellants, v. Tom FEENEY, in his official capacity as Speaker of the State of Florida House of Representatives; Republican Party of Florida, Appellees.
    No. 02-2849.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.

      David S. Bralow, Senior Counsel, Tribune Company, Orlando; Gregg D. Thomas, Esquire, Rachel E. Fugate, Esquire and Deanna K Shullman, Esquire, of Holland & Knight LLP, Tampa, for Appellants.
    Barry Richard, Esquire, Greenberg Traurig, P.A., Tallahassee; E. Thom Rum-berger, Esquire, Daniel J. Gerber, Esquire, Kimberly D. Webb, Esquire, of Rumberger, Kirk & Caldwell, Tallahassee, for Appellees.
   POLSTON, J.

Appellants seek additional information from the cellular phone records of five staff employees of the Florida House of Representatives pursuant to public record requests to the House and the Republican Party of Florida. The cellular phones, used by the five individuals for personal calls and for official business calls, are paid for by the Republican Party without any cost to the individuals or to the House.

In March, 2002, appellants demanded that the House provide copies of the cellular phone bills and the House responded that no such records existed. The appellants also demanded copies of the records from the Republican Party, which refused to provide them. Appellants filed suit to recover the requested documents.

Shortly after appellants filed suit, outside counsel for the House instructed the five individuals to review the relevant cellular phone records at the Republican Party headquarters and to redact all information relating to calls they determined to be private. The employees were further instructed that any calls relating to the business of the House or to pending or potential legislation were considered public calls and were not to be redacted, except for the actual phone numbers called. In a failed attempt to facilitate a resolution of the matter without further litigation, the employees were instructed to write the name of the person or entity called for each of the public calls. The Republican Party delivered copies of the telephone records, redacted by the individuals as instructed, to outside counsel for the House and he forwarded them to counsel for appellants.

Appellants claim that they are entitled to receipt of the cellular phone records in their entirety without redaction. We hold that under the circumstances of this case, appellants are entitled to receipt of the redacted phone numbers for those designated as public calls, but are not entitled to receipt of the redacted private calls, pursuant to section 11.0431, Florida Statutes (2002). Accordingly, we affirm in part and reverse in part.

I.

The Republican Party argues that the cellular phone billing records at issue are its property and arise out of the business of the Republican Party, not on behalf of a public agency, and therefore are not governed by the disclosure provisions of Art. I, § 24 of the Florida Constitution or section 11.0431, Florida Statutes. However, because the Republican Party voluntarily produced the phone records, we do not reach the issue of whether the Republican Party was acting on behalf of a public agency and therefore required to disclose records pursuant to appellants’ public record request. See News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So.2d 1029 (Fla.1992)(holding that a “totality of factors” test should be utilized to determine whether a private entity is acting on behalf of a public agency and is therefore subject to the public records law).

The appellants seek a bright-line ruling that all phone calls in the billing records are “public record.” As noted in Times Publishing Co. v. City of Clearwater, 830 So.2d 844 (Fla. 2d DCA 2002), the public record statute defining “public record” and the Florida Constitution require disclosure of documents made or received pursuant to law or ordinance or in connection with the transaction of official business. Id. at 846 (quoting section 119.011(1), Fla. Stat. (2000) and Art. I, § 24(a), Fla. Const.); see § 11.0431(4), Fla. Stat. (2002)(using the same language defining public records of the House). The court in Times Publishing, rejecting a similar argument for a bright-line ruling that all e-mail on the City’s computer system was “public record,” stated:

In this case, however, “private” or “personal” e-mail simply falls outside the current definition of public records. Such e-mail is not “made or received pursuant to law or ordinance.” Likewise, such e-mail by definition is not created or received “in connection with the official business” of the City or “in connection with the transaction of official business” by the City. Although digital in nature, there is little to distinguish such e-mail from personal letters delivered to government workers via a government post office box and stored in a government-owned desk.

Id. at 846-47.

Likewise, the “private” or “personal” phone calls by these five individuals were not created or received in connection with the official business of the House. Therefore, we agree with the trial court that the personal calls fall outside the current definition of public records and were properly redacted. Id.; see also Fla. R. Jud. Admin. 2.051, Committee Commentary at 11 (West 2002 Second Cumulative Supplement)(commenting on the Florida Supreme Court’s rules for public access to records of the judicial branch of government: “[e]-mail may also include transmissions that are clearly not official business and are, consequently, not required to be recorded as a public record.”).

II.

The House agrees that calls made in connection with official business are responsive to appellants’ public record request, but argues that the phone numbers were properly redacted, citing Rea v. Sansbury, 504 So.2d 1315 (Fla. 4th DCA 1987) and arguing that the disclosure of these numbers will result in unreasonable consequences to the persons called.

We do not find Rea applicable to these circumstances. The court in Rea held that a telephone number providing access to the Palm Beach County Online Monitor System was not a public record. The Online Monitor System was established “to enable outlying county employees who are involved in matters pending before the commission or particular public board to monitor proceedings via telephone to determine when their presence at the proceeding was necessary so as to obviate their spending unnecessary time sitting through matters irrelevant to their function and purpose.” Id. at 1317. The court noted that because the system will only tolerate so many calls, the county refused to allow its use by the general public. Id. The county argued that the telephone number acted as the access to the system in the same manner as a county computer with access codes and keys that are not public information subject to the public records law. Id. The court agreed with the county that the telephone number was not a public record, noting that the telephone number accessed public information otherwise available. Id. at 1317-18. Here, the redacted telephone numbers called during the transaction of official business do not act as access numbers to public information otherwise available. Therefore, Rea does not apply.

Although we agree with the House that the disclosure of these telephone numbers may result in unreasonable consequences to the persons called, this argument should be made to the Florida Legislature, which has specified various public record exemptions for disclosure of telephone numbers. See, e.g., § 119.07(3)(i), Fla. Stat. (2002)(exempting telephone numbers for law enforcement personnel, correctional officers, firefighters, judges, specified human resource directors); Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 380 & n. 14 (Fla.1999)(ruling that “an exemption from public records access is available only after the legislature has followed the express procedure provided in article I, section 24(c) of the Florida Constitution”); Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla.1979)(rejecting public policy considerations that support public record exemptions, the Court stated that such arguments should be addressed to the legislature; “Courts deal with the construction and constitutionality of legislative determinations, not with their wisdom”). Therefore, we reverse the trial court’s ruling permitting the redaction of these numbers and remand for the trial court to direct appellees to provide these redacted public call telephone numbers to appellants.

Conclusion

We hold that under the circumstances of this case, appellants are entitled to receipt of the redacted phone numbers for those designated as public calls, but are not entitled to receipt of the redacted private calls.

Affirmed in part; Reversed in part and Remanded.

BARFIELD and BENTON, JJ., concur.

      . In February, 2002, the House administration made the decision to discontinue paying for employee cellular phone service and the Republican Party began paying for the service. There is no dispute in this case over compliance with appellants' prior public record requests to the House for cellular phone records prior to February, 2002.

      . There is no dispute over the individuals’ designation of calls as private or public. It was the appellants’ burden to request an in camera inspection of the calls designated as private if they intended to prove that the designations as private were incorrect. See Times Publishing, 830 So.2d at 846 & n. 2.


text:
    Halbert E. DOCKINS, Jr. v. Michael S. ALLRED, John I. Donaldson and Allred & Donaldson, A Partnership.
    No. 2002-CA-00653-SCT.
    Supreme Court of Mississippi.
    June 26, 2003.

      Thomas Henry Freeland, III, Oxford, Anita M. Stamps, Jackson, attorneys for appellant.
    James P. Cothren, Michael S. Allred, Jackson, attorneys for appellees.
    BEFORE SMITH, P.J., COBB and CARLSON, JJ.
   SMITH, Presiding Justice, for the Court.

¶ 1. This is an appeal from a Hinds County Circuit Court decision setting the statutory penalty for pursuing a prior unsuccessful appeal. Attorney Halbert E. Dockins, Jr. (“Dockins”), and attorneys Michael S. Allred and John I. Donaldson and their law firm of Allred and Donaldson (collectively “Allred”) entered into an agreement to share the attorney’s fee resulting from a successful lawsuit against the Loewen Group. The fee included cash, stock, and a promissory note. Dockins appealed the trial court’s grant of summary judgment to Allred for division of the fee. This Court affirmed in Dockins v. Allred, 755 So.2d 389 (Miss.1999) (“Dockins I”), and remanded the case to the trial court to determine the amount of the statutory penalty. The trial court based the amount of the penalty on the entire attorney’s fee and valued the stock included in the fee as of the date of its original grant of summary judgment rather than the date of the Supreme Court mandate. There was no penalty assessed on the promissory note from Loewen because it was payable in future installments. We find that the trial court erroneously applied the statutory penalty to the entire attorney’s fee and erroneously valued the stock included in the fee as of the date of its summary judgment. We, therefore, reverse and remand.

FACTS

¶ 2. This matter began as a dispute between Dockins and Allred over the division of an attorney’s fee. There was a written agreement between the two to divide the fee equally unless one of the firms worked substantially more hours on the case than the other. If that occurred, the fee was to be divided pro rata based on the hours worked. However, each firm was guaranteed at least 25% of the fee, no matter the disparity in the hours worked. Dockins alleged his firm was due at least 75% of the total fee. He also alleged fraud by Allred which, if proven, arguably could have led to the entire fee being awarded to Dockins. However, in a hearing to set the amount of a supersedeas bond for the pri- or appeal, the attorney for Dockins did indicate “the highest percentage that we thought we were entitled to is at least half the amount of [the fee].”

¶ 3. The trial court, during a hearing to fix the amount in controversy prior to the appeal in Dockins I, set the amount as 21.53% of the attorney’s fee — i.e. 50% of the fee minus the 28.47% that was awarded to Dockins by the trial court. In doing this, the trial court adopted Allred’s recommendation on the method of calculating the amount in controversy. Dockins then appealed without supersedeas. This Court affirmed the trial court’s grant of summary judgment and issued its mandate on February 24, 2000. On remand to determine the statutory penalty for pursuing an unsuccessful appeal, the trial court applied the 15% appeal penalty to the entire attorney’s fee and valued the stock included in the fee as of July 18, 1997, the date of its grant of summary judgment. Aggrieved, Dockins filed this appeal.

¶ 4. The following issues are raised by this appeal:

I. WHETHER THE TRIAL COURT WAS CORRECT IN ASSESSING THE STATUTORY PENALTY ON THE ENTIRE ATTORNEY’S FEE.

II. WHETHER THE TRIAL COURT WAS CORRECT IN VALUING STOCK INCLUDED IN THE ATTORNEY’S FEE AS OF THE DATE OF SUMMARY JUDGMENT INSTEAD OF THE SUPREME COURT MANDATE.

STANDARD OF REVIEW

¶ 5. We review questions of law de novo. Mason v. State, 781 So.2d 99, 100 (Miss.2000). Despite Allred’s assertions to the contrary, the determination of the amount in controversy on appeal, as well as the timetable for valuing property that is the subject of that appeal, are questions of law. Obviously, the date to value property is a question of law; no factual determination will allow a trial court the discretion to set the date of valuation as it chooses. Likewise, the amount in controversy is a question of law; the amount of money at issue does not vary based on occurrences and circumstances of which the trial court is the closest and most qualified observer. Instead, the trial court should reach this determination by interpreting the law of this state.

ANALYSIS

¶ 6. Dockins argues the trial court erred by assessing the statutory penalty on the entire attorney’s fee and by setting the value of stock included in the award on the date of summary judgment.

I. WHETHER THE TRIAL COURT WAS CORRECT IN ASSESSING THE STATUTORY PENALTY ON THE ENTIRE ATTORNEY’S FEE.

¶7. Miss.Code Ann. § 11-3-23 (Rev.2002) provided for a mandatory penalty for pursuing an unsuccessful appeal. Section 11-3-23 provided in pertinent part:

In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%) as follows: If the judgment or decree be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property.

Where an appeal is filed claiming a portion of an asset or sum of money, the statutory penalty should only be applied to the portion claimed — i.e. the amount in controversy. Holliman v. Dale, 578 So.2d 271 (Miss.1991). The statute providing damages to the appellee after an unsuccessful appeal is penal in nature and ought to be strictly construed against the party invoking it; the statute should not represent a windfall to the appellee. Lowicki v. Lowicki, 429 So.2d 917, 919 (Miss.1983). Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation. Banes v. Thompson, 352 So.2d 812, 812 (Miss.1977). The statutory penalty is applied to both real and personal property. Miss.Code Ann. § 11-3-23.

¶ 8. The heart of this issue is the amount in controversy on appeal. The trial court, at Allred’s urging, set the amount in controversy at 21.53% of the attorney’s fee. Allred stated, “the amount of cash in controversy is the difference between 28.47% and 50%.” Because of the firm’s argument at the hearing to set the amount in controversy, Allred cannot now assert that the amount in controversy was greater than the 21.53% of the fee the firm claimed. Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation. Dockins’s claim that the entire amount was in controversy (to the extent such a claim was made) does not face such a bar. “[W]hen the party making the pri- or statement, which is inconsistent with his position in the present action, has not ben-efitted by the assertion, the doctrine should not be applied.” Mauck v. Columbus Hotel Co., 741 So.2d 259, 265 (Miss.1999) (citing Thomas v. Bailey, 375 So.2d 1049, 1053 (Miss.1979)). Dockins did not benefit from his assertion that there was more than 21.53% of the fee in controversy. Allred, however, did benefit from its stance, and it is estopped from asserting a contrary position in a later proceeding involving the same controversy.

¶ 9. Another issue is the amount claimed by Dockins. “If [the appellant] loses, however, he must pay the price, a price he well knows and may easily calculate before giving his notice of appeal.” Walters v. Inexco Oil Co., 440 So.2d 268, 275 (Miss.1983). The basis for Dockins’s calculation surely must have been the amount determined to be in controversy by the trial court before the appeal. If we were to allow the penalty to be assessed on a different amount after the appeal has been rejected, we would deny the appellant the definitive knowledge of the costs of appeal Walters praises.

¶ 10. While Dockins did assert, at times, that he should be entitled to more than 50% of thé attorney’s fee, this was a speculative claim based on actions which he alleged were fraudulent and could allow punitive damages to be assessed. If Doc-kins had claimed that Allred’s actions were sufficiently egregious to warrant $100 million in punitive damages, would the trial court have assessed the statutory penalty at $15 million? We think the answer is no. Dockins’s speculative claim for damages cannot be the basis for assessing the mandatory penalty. The assertion that he was entitled to 50% of the fee is a more accurate reflection of the issue that was appealed. Several times during the proceeding to determine the amount in controversy, Dockins stated this as his view: “[T]he highest percentage that we thought we were entitled to is at least half the amount of money that’s involved.” “[0]f all the money involved, at least 50% of that is definitely in controversy.” “[W]e have claimed at least 50%, very close to 50% of that money[.]” Dockins’s attorney did point out that, if summary judgment were reversed, a jury could award any amount to Dockins. Again, this is totally speculative. Only a definite, final judgment should be subject to the statutory penalty. As the trial court correctly determined in its hearing to set the supersedeas bond, the actual amount in controversy is 21.53% of the fee. Therefore, the trial court erred in applying the appeal penalty to the amount of the entire attorney’s fee.

II. WHETHER THE TRIAL COURT WAS CORRECT IN VALUING STOCK INCLUDED IN THE ATTORNEY’S FEE AS OF THE DATE OF SUMMARY JUDGMENT INSTEAD OF THE SUPREME COURT MANDATE.

¶ 11. In assessing the mandatory statutory penalty, the trial court valued stock that was a part of the award of attorney’s fee as of the date of its summary judgment, rather than the date of the Supreme Court mandate. Dockins argues the appropriate date for the valuation of property is the date of the Supreme Court mandate. We agree.

¶ 12. “[T]he date upon which valuation of the subject properties should be made in connection with the 15% statutory penalty is ... the date of the Supreme Court’s mandate affirming the lower court’s decision.” Estate of Haynes v. Steele, 699 So.2d 918, 926 (Miss.1997). See also Peoples Bank & Trust Co. v. L & T Developers, Inc., 437 So.2d 7, 12 n. 4 (Miss.1983); Lowicki, 429 So.2d at 920. Allred points out that all of these cases involve real property, and, indeed, part of the justification for using the date of the Supreme Court mandate is the difficulty in valuing volatile real property. Peoples Bank & Trust Co., 437 So.2d at 12 n. 4. This is obviously not a problem with the property in question given its daily price listing on the New York Stock Exchange. However, when asked to apply statutory damages on a suit involving an insurance policy, this Court stated, the amount “in controversy is of course, personal property, but there is no evidence in the record from which its present value can be ascertained[.]” Garner v. Townes, 134 Miss. 791, 805, 100 So. 20, 23 (1924) (emphasis added). Clearly, Garner valued the policy, which is personal property, at its “present value” — i.e. its value on the date of the mandate.

¶ 13. Allred also points to cases where the statutory penalty was not applied to post-judgment interest or damages accrued after the trial court’s judgment. Benson v. Benson, 749 So.2d 75, 77 (Miss.1999); Koehring Co. v. Hyde Constr. Co., 236 So.2d 377, 382 (Miss.1970); Firestone Tire & Rubber Co. v. Fried, 202 Miss. 370, 383, 31 So.2d 116, 118 (1947); U.S. Fidelity & Guar. Co. v. Yost, 183 Miss. 65, 185 So. 564 (1939). However, all these cases deal with money which accrued after the trial court’s judgment, i.e., interest or additional damages. The case at bar deals with property that has changed in value. It has long been the law to apply the statutory penalty to the value of property as of the date of the Supreme Court mandate, and we see no reason to change that rule. Therefore, the trial court erred as a matter of law in fixing a different valuation date for the stock.

CONCLUSION

¶ 14. The trial court incorrectly applied the statutory penalty to the entire attorney’s fee and erroneously valued stock included in the fee as of the date of its summary judgment. We, therefore, reverse the trial court’s judgment, and we remand this case to the trial court for further proceedings consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

PITTMAN, C.J, WALLER, COBB, DIAZ AND CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.

      . Section 11-3-23 was repealed by House Bill 19, 2002 Miss. Laws 3rd Extra Sess. Ch. 4 (H.B.19) which was effective "from and after January 1, 2003, and shall apply to all causes of action filed on or after that date.” However, we need not address the applicability of H.B. 19 here since we address the proper application of section 11-3-23 prior to January 1, 2003.


author: MYERS, J., for the court.

text:
    Ronald J. ROBINSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KP-00973-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Ronald J. Robinson, Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, Attorney for Appellee.
    Before LEE, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the court.

¶ 1. Ronald Robinson pled guilty to the crime of aggravated assault in exchange for dropping several other charges. He was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. The judgment and sentence were entered on October 7,1999.

¶ 2. On April 30, 2002, Robinson filed a motion asking the trial court judge to reconsider his sentence. The trial judge denied the motion due to lack of jurisdiction. Robinson appealed the denial of his motion to reconsider his sentence. After review, we agree with the trial court and affirm.

LEGAL ANALYSIS

¶ 3. There are two ways in which a criminal may challenge a trial court proceeding: (1) a direct appeal, or (2) a proceeding under the Post-Conviction Relief Act. Fleming v. State, 553 So.2d 505, 506 (Miss.1989). Robinson is not directly appealing his conviction, nor would a petition for post-conviction relief be applicable due to the nature of the relief Robinson seeks. Robinson is seeking a reduction of his sentence.

114. Robinson is incorrect in his assertion that a judge has authority to reduce a sentence even if a judge does not have power to vacate a sentence after the term expires. A reduction or reconsideration of a sentence by a judge must occur prior to the expiration of the sentencing term. Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981). The power to reduce the sentence after the expiration of the term is vested in another branch of the government. The trial judge was correct to deny the request.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING MOTION TO RECONSIDER SENTENCE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: MADDOX, Retired Justice. SEE, Justice

text:
    McCONNELL AUTOMOTIVE CORPORATION et al. v. Robert JACKSON and Kisha Jackson.
    1010006.
    Supreme Court of Alabama.
    Nov. 1, 2002.
    Michael P. Windom of Windom & Tobi-as, L.L.C., Mobile, for appellants.
    John Ronald Spencer, Mobile, for appel-lees.
   MADDOX, Retired Justice.

The sole question presented by this appeal is whether the trial court erred in refusing to compel arbitration in this case on the basis that the underlying transaction did not have a substantial effect on interstate commerce. The plaintiffs, Robert Jackson and Kisha Jackson, claimed that the defendants, McConnell Automotive Corporation (“McConnell”); Terry Anderson, a sales representative for McConnell (“Anderson”); and Stacy Hill, the used-car manager of McConnell (“Hill”), were guilty of fraud, misrepresentation, suppression, and deceit arising out of the sale of a used automobile.

The defendants filed a motion to dismiss the Jacksons’ complaint, or alternatively, to compel arbitration. They attached as exhibits to the motion a “Used Vehicle Retail Buyer’s Order” and the “Arbitration Agreement.” Both of those documents were signed by Kisha Jackson. In support of their motion to compel arbitration, the defendants filed an affidavit of Raymond Zakutney, a vice president of McConnell, and affidavits of Anderson and Hill, in which they showed the history of the motor vehicle that is the subject of this dispute.

Facts

On or about March 8, 2001, Kisha Jackson purchased a 1999 Cadillac DeVille automobile from McConnell. Anderson was a sales representative for McConnell, and, according to an affidavit filed in the trial court by Kisha Jackson, was the salesperson with whom she dealt. In her affidavit she stated that “[b]efore purchasing [the] vehicle [she] asked Terry Anderson whether the Cadillac DeVille had been wrecked” and “[he] assured [her] that it had not been wrecked.” She also stated in her affidavit that she spoke with Hill, who was the used-car manager of McConnell, and that she asked Hill if the vehicle had been wrecked and “[he] assured [her] that it had not been wrecked.”

The question crucial to a determination of this particular appeal is whether the defendants can enforce the arbitration agreement executed by Kisha Jackson at the time of the transaction in accordance with its terms. The arbitration agreement was a separate document; it reads:

“ARBITRATION AGREEMENT
“Buyer/lessee acknowledges and agrees that the vehicle purchased or leased herein has traveled in interstate commerce. Buyer/lessee thus acknowledges that the vehicle and other aspects of the sale, lease or financing transaction are involved in, affect, or have a direct impact upon, interstate commerce.
“BuyerAessee and dealer agree that all claims, demands, disputes, or controversies of every kind or nature that may arise between them concerning any of the negotiations leading to the sale, lease or financing of the vehicle, terms and provisions of the sale, lease or financing agreement, arrangements for financing, purchase of insurance, purchase of extended warranties or service contracts, 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 provision of 9 U.S.C. Section 1 et seq. and according to the Commercial Rules of the Mobile Better Business Bureau. Without limiting the generality of the foregoing, it is the intention of the buyerAessee 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, any representations, promises or omissions made in connection with negotiations for the sale, lease, or financing of the vehicle, or any terms[,] conditions, or representations made in connection with the financing, credit life insurance, disability insurance, and vehicle extended warranty or service contract purchased or obtained in connection with the vehicle. “Either party may demand arbitration by filing with the American Arbitration Association a written demand for arbitration along with a statement of the matter in controversy. A copy of the demand for arbitration shall simultaneously be served upon the other party. The buyerAessee and the dealer agree that the arbitration proceedings to resolve all such disputes shall be conducted in the city where dealer’s facility is located.”

Although the trial judge did not state his reasons for denying the defendants’ motion to compel arbitration, it seems apparent from the record that the trial judge, after considering the oral arguments of counsel and the holdings of cases cited by the parties, determined that the transaction did not have a substantial effect on interstate commerce.

In conducting our de novo review we have studied the evidence that was before the trial court. That evidence shows that McConnell purchased the Cadillac from General Motors Auction Department, located in Warren, Michigan, at an auction conducted by ADESA Birmingham, located in Moody, Alabama. When McConnell purchased the vehicle it had a Georgia certificate of title issued on October 27, 1998. The certificate of title shows the owner of the vehicle as follows:

“GMAC
“Daniel, Dolores R.
“PO Box 55306
“Birmingham, AL 35255”

Under the subheading “1st Lien Or Security Interest,” the following appears:

“GMAC
“PO Box 8107
“Cockeysville, MD 21030”

The document evidencing the sale of the Cadillac shows that the seller was General Motors Auction Department, 30007 Van Dyke Avenue, Warren, Michigan, and that the buyer was McConnell.

There is other evidence in the record indicating that the vehicle was transported from Georgia to Alabama; that McConnell, although its principal place of business is located in Mobile, in the course of that business has sold motor vehicles to customers who reside out of state; and that McConnell has financed motor vehicles with companies whose principal places of business are not within Alabama.

I.

We first note that a direct appeal is the proper procedure to obtain appellate review of a trial court’s order granting or denying a motion to compel arbitration. See Rule 4(d), Ala. R.App. P.; Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001). The scope of this Court’s review on appeal is de novo. Id. The burden of proving that the subject transaction substantially affected interstate commerce is on the party seeking to compel arbitration. Id. See also Transouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999), and Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995) (opinion on rehearing). If a movant meets the burden required by law, the burden then shifts to the nonmovant to present evidence indicating that the arbitration agreement is not valid or does not apply to the disputed question. Id.

II.

We now consider the crucial issue on this appeal: Did the defendants present sufficient evidence to show that the subject transaction had a substantial effect on interstate commerce? The defendants argue that the evidence shows that McConnell is an automobile dealership located in Mobile, Alabama; that it sells new and used vehicles; and that it sells vehicles to customers who reside out of state. McConnell also argues that it has financed vehicles with companies whose principal places of business are outside the State of Alabama.

The defendants, in their brief to this Court, contend that the arbitration agreement Kisha Jackson signed is enforceable under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., as interpreted by the Supreme Court of the United States in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995).

Although the defendants rely on Alliedr-Bruce Terminix, they recognize that this Court, in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), now requires that there be a “substantial” effect on interstate commerce for a transaction to be governed by the provisions of the FAA. They contend that the facts of this case are similar to other motor-vehicle arbitration cases decided by this Court, in which this Court has compelled arbitration in accordance with the terms and conditions of an arbitration agreement. They cite Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249 (Ala.1997), which involved the sale of a used motor vehicle, and in which this Court analyzed the arbitration agreement and an affidavit executed by the dealership’s president and affirmed the trial court’s order enforcing the arbitration agreement. The defendants also rely on Jim Burke Automotive, Inc. v. McGrue, 826 So.2d 122 (Ala.2002). McGrue, the plaintiff in that case, purchased a used Nissan Altima automobile from the defendant, Jim Burke Automotive, Inc. (“Jim Burke”). After the purchase, she brought conspiracy and antitrust claims against Jim Burke; Roebuck Mazda; Med-Center Mazda; Crown Pontiac-Nissan, Inc.; Crown Automobile Company, Inc.; King Aeura; Limbaugh Toyota; Susan Schein Chevrolet, Inc.; Premier Chevrolet, Inc.; Neil Bonnett Honda; Lynn Layton Chevrolet Company; Jim Skinner Ford; Edwards Chevrolet Company, Inc.; Roebuck Chrysler-Plymouth-Jeep-Eagle, Inc.; Roebuck Honda; Tam-eron Automotive Group; Hoover Toyota, L.L.C.; Courtesy Pontiac-GMC, Inc.; Century Chevrolet-Geo, Inc.; Royal Oldsmobile Company, Inc.; Steel City Pontiac GMC; and Serra Toyota, Inc. (the Court referred to these other automobile dealerships as “the nonsignatory defendants”). She also alleged that her constitutional right to a trial by jury had been violated and requested certification of her ease as a class action.

In that case, Jim Burke and the nonsig-natory defendants filed motions to compel McGrue to arbitrate her claims, citing three arbitration agreements executed by her and Jim Burke in conjunction with her purchase of the Altima. The trial court denied the motions. Jim Burke and the nonsignatory defendants appealed, in six separate appeals; those appeals were consolidated. This Court reversed the trial court’s order denying Jim Burke’s motion to compel arbitration, but affirmed the orders denying the nonsignatory defendants’ motions to compel arbitration, and remanded the case.

This Court, in McGrue, summarized the law of Alabama relating to the enforceability of an arbitration clause:

“We first address the question whether the FAA applies to the arbitration agreement McGrue signed when she purchased the used motor vehicle from Jim Burke. Section 8-1-41(3), Ala.Code 1975, prohibits specific enforcement of ‘[a]n agreement to submit a controversy to arbitration.’ However, § 2 of the FAA, 9 U.S.C. § 2, provides:
“ ‘A written provision in ... 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.’
“This Court has recognized that under this section the FAA preempts conflicting state law where an arbitration agreement is contained in a contract that ‘evidences] a transaction involving [interstate] commerce.’ Ex parte Jones, 628 So.2d 316 (Ala.1993); Ex parte Phelps, 672 So.2d 790 (Ala.1995); see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Thus, an arbitration provision contained in a contract that, in fact, evidences a transaction involving interstate commerce is put ‘ “on the same footing” as other terms of a contract.’ Phelps, 672 So.2d at 793 (quoting Allied-Bruce Terminix, 513 U.S. at 275, 115 S.Ct. 834).
‘We note that nothing in the record suggests, and that McGrue does not contend, that the arbitration agreement she entered with Jim Burke is invalid. Therefore, the FAA will apply to that arbitration agreement if it appears in a contract evidencing a transaction ‘involving interstate commerce in fact, so as to be. within Congress’s power to regulate under the Commerce Clause.’ Coastal Ford, Inc. v. Kidder, 694 So.2d 1285, 1287 (Ala.1997). The burden of proving that the transaction at issue in this case substantially affected interstate commerce is on Jim Burke and the nonsig-natory defendants, because they seek to compel arbitration. See TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999).
“In Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249 (Ala.1997), a plurality of this Court (four Justices) concluded that the sale of a used motor vehicle is, per se, a transaction involving interstate commerce and, thus, triggers application of the FAA. However, in Southern United Fire Insurance Co. v. Knight, 736 So.2d 582 (Ala.1999), this Court declined to adopt that proposition as a per se rule for determining whether the purchase of a used motor vehicle is a transaction involving interstate commerce. Instead, in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), this Court listed factors a court should consider when determining if a transaction has had a ‘substantial effect’ on interstate commerce. These factors are: (1) the citizenship of the parties and any affiliation they have with out-of-state entities; (2) tools and equipment used in performance of the contract; (3) allocation of the contract price to cost of services and to cost of materials involved in performance of the contract; (4) subsequent movement of the object of the contract across state lines; and (5) the degree to which the contract at issue was separable from other contracts that are subject to the FAA. Id. at 765-66.
“Relying primarily on David Bolden’s affidavit, quoted above, we conclude that Jim Burke and the nonsignatory defendants met their burden imposed by this Court’s listing of the several factors in Sisters of the Visitation. Admittedly, the sale and purchase of the used vehicle in this case occurred in Alabama and occurred between two Alabama residents. (The record does not indicate that Jim Burke is affiliated with a national network of automobile dealerships. Cf. Allied-Bruce Terminix, supra.) Bolden’s affidavit states that Southwest Tex Leasing Company, a company located in San Antonio, Texas, purchased the vehicle from the manufacturer. Southwest Tex then sold the vehicle to American Sales & Leasing, a company located in Orlando, Florida. Finally, Jim Burke bought the vehicle in Florida, from American Sales & Leasing, and subsequently sold the vehicle to McGrue in Alabama. The financing of the purchases involving this vehicle involved two out-of-state financial corporations: Ford Motor Credit Company of Delaware financed the sale to Southwest Tex, and Chrysler Financial Company, L.L.C., a Michigan corporation, financed McGrue’s purchase of the vehicle.
“We contrast this case with Tefco Finance Co. v. Green, 793 So.2d 755 (Ala.2001). Tefco involved the sale of a used motor vehicle by an Alabama automobile dealership to an Alabama resident, with an Alabama corporation financing the transaction. Id. at 756. The dealership and the financial institution, as defendants, moved to compel arbitration and to transfer the case to another county; to their motion they attached an affidavit in which the vice president of the dealership, also acting as vice president of the financial institution, stated that all the business in the transaction at issue had occurred exclusively in a particular county in Alabama. Id. This Court held that the arbitration agreement was unenforceable because the defendants had failed to prove the impact of the transaction on interstate commerce. Id. In this case, we have an affidavit that clearly describes the interstate activities of the transaction.
“Thus, we hold that the purchase of this vehicle substantially affected interstate commerce and that the FAA does apply to make the arbitration agreement in this case enforceable.”

826 So.2d at 128-30 (footnote omitted). The facts of this case are similar to those in McGrue, in that the sale and purchase of the used vehicle in this case occurred in Alabama between two Alabama residents, as was true in the McGrue case. In this case, the automobile apparently was initially leased from GMAC by an Alabama resident, and the owner was listed as “GMAC, Daniel, Dolores R.,” with an address shown as “PO Box 55306, Birmingham, Alabama.” The first lienholder on the ve-hide was shown as “GMAC, P0 Box 8107, Cockeysville, Maryland.” The vehicle was brought from Georgia to Alabama, and was sold to McConnell by ADESA Birmingham, Moody, Alabama, on behalf of General Motors Auction Department, whose principal office is located at 30007 Van Dyke Avenue, Warren, Michigan.

In McGrue, an affiant stated that Southwest Tex Leasing Company, a company located in San Antonio, Texas, had purchased the vehicle from the manufacturer and that Southwest Tex then sold the vehicle to American Sales & Leasing, a company located in Orlando, Florida, and that “[finally, Jim Burke bought the vehicle in Florida, from American Sales & Leasing, and subsequently sold the vehicle to McGrue in Alabama.” 826 So.2d at 129.

The facts in McGrue differ from the facts in this case, in that the financing of the purchase of the vehicle in McGrue involved two out-of-state financial corporations: Ford Motor Credit Company, a Delaware corporation, financed the sale to Southwest Tex, and Chrysler Financial Company, L.L.C., a Michigan corporation, financed McGrue’s purchase of the vehicle. Here, it is undisputed that, although the vehicle was initially leased from GMAC, Kisha Jackson paid cash for the vehicle.

Although this Court in McGrue abandoned the per se rule a plurality of this Court had adopted in Hurst, it nevertheless has not embraced the holding in Tefco Finance Co. v. Green, 793 So.2d 755 (Ala.2001). This Court, in McGrue, distinguished Tefco on the ground that the facts in Tefco showed that the sale of the used motor vehicle in that case was by an Alabama automobile dealership to an Alabama resident and that an Alabama corporation financed the transaction. Id. at 756. In fact, in that case, the vice president of the dealership, also acting as vice president of the financial institution, stated that all the business in the transaction at issue had occurred exclusively in a particular county in Alabama. Id. In Tefco, this Court reasoned, as follows:

“We conclude that Tefco did not meet its burden, because it presented no evidence indicating how the aggregate effects of this intrastate purchase of a used automobile affects interstate commerce. It is undisputed that the plaintiff is an Alabama resident, that the defendants are Alabama businesses, and that the entire transaction involving the sale and financing of the automobile occurred within Alabama. The defendants assert that the Escort [automobile] was manufactured outside Alabama and that, by its very nature, it can be transported across state lines. However, the only evidence presented in support of their motion to compel arbitration was an affidavit expressly isolating the entire transaction within this state. Nothing before the trial court indicated that Green had taken the Escort across state lines or that her purchase of the Escort had any effect on interstate commerce. The defendants do not even allege that they have other customers who have traveled outside Alabama in an automobile the defendants have sold or financed, so as to show that the sale and financing of Green’s automobile was part of a pattern of economic activities that in the aggregate affected interstate commerce. For this reason, we must conclude that the trial court properly held that the contract did not involve interstate commerce. Thus, § [8-1-41(3)], Ala.Code 1975, applies. That section precludes enforcement of the arbitration agreement.”

793 So.2d at 759-60 (footnote omitted). The Jacksons close their argument in their brief to this Court, as follows:

“Instead of focusing on the facts of the transaction involved in this action, McConnell, Anderson and Hill focus on the facts of a previous transaction in which Kisha Jackson was not involved. However, the facts in that previous transaction likewise demonstrate that an Alabama corporation purchased a used vehicle from an entity bearing an Alabama address at an auto auction in Alabama. The vehicle was delivered to the buyer in Alabama. And, all of the rights, duties and obligations of the parties to that other transaction arose in Alabama. Unlike the evidence in Jim Burke Automotive v. McGrue, supra, the competent evidence here demonstrates that this intrastate transaction does not have a substantial effect on interstate commerce.”

(Jacksons’ brief, p. 18; emphasis original.)

We agree with the Jacksons. Although the facts in this case are similar to the facts in McGrue, we believe, after a de novo review of the evidence that was before the trial court, that some of the critical facts necessary to show a pattern of economic activity that in the aggregate substantially affected interstate commerce are not present here. In McGrue, although the automobile was sold by an Alabama automobile dealership to an Alabama resident, the record showed that an out-of-state corporation financed McGrue’s purchase of the automobile, and in McGrue, this Court “contrasted] [McGrue] with Tefco Finance Co. v. Green, 793 So.2d 755 (Ala.2001). Tefco involved the sale of a used motor vehicle by an Alabama automobile dealership to an Alabama resident, with an Alabama corporation financing the transaction.” 826 So.2d at 130. Here, it is undisputed that Kisha Jackson paid cash for the vehicle. We further note that, in McGrue, this Court distinguished Tefco on the ground that the facts in Tefco showed that the sale of the used motor vehicle in that case was by an Alabama automobile dealership to an Alabama resident and that an Alabama corporation had financed the transaction. 793 So.2d at 756. We further note that in McGrue the automobile dealership purchased the vehicle at an out-of-state auction, and that in this case McConnell purchased the automobile at an auction conducted in Alabama.

Based on the foregoing, we hold that the trial court did not err in refusing to compel arbitration in this case. Consequently, 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).

AFFIRMED.

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

MOORE, C.J., and LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur in the result.

SEE, J., dissents.

SEE, Justice

(dissenting).

I respectfully dissent from the conclusion of the main opinion that Kisha Jackson’s purchase of an automobile did not substantially affect interstate commerce.

The main opinion distinguishes this case from Jim Burke Automotive, Inc. v. McGrue, 826 So.2d 122 (Ala.2002). McGrue purchased a car from Jim Burke Automotive, Inc. (“Jim Burke”), and executed an arbitration agreement. McGrue had problems with the car, and she sued Jim Burke and other defendants, asserting conspiracy and antitrust claims. Jim Burke moved to compel arbitration, but the trial court denied that motion. This Court reversed, finding that there was a binding arbitration agreement and that the transaction substantially affected interstate commerce.

The main opinion would distinguish this case from McGrue because Kisha Jackson paid cash for her car and because the dealership purchased the car at an auction conducted in Alabama, whereas the car McGrue purchased was financed by two out-of-state financial corporations and was purchased by the dealership at an out-of-state auction.

The main opinion notes:

“[The] evidence shows that McConnell purchased the Cadillac from General Motors Auction Department, located in Warren, Michigan, at an auction conducted by ADESA Birmingham, located in Moody, Alabama. When McConnell purchased the vehicle it had a Georgia certificate of title issued on October 27, 1998. The certificate of title shows the owner of the vehicle as follows:
“ ‘GMAC
“ ‘Daniel, Dolores R.
“ ‘PO Box 55306
“ ‘Birmingham, AL 35255’
“Under the subheading ‘1st Lien Or Security Interest,’ the following appears:
“ ‘GMAC
“ ‘PO Box 8107
“ ‘Cockeysville, MD 21030’
“The document evidencing the sale of the Cadillac shows that the seller was General Motors Auction Department, 30007 Van Dyke Avenue, Warren, Michigan, and that the buyer was McConnell.
“There is other evidence in the record indicating that the vehicle was transported from Georgia to Alabama; that McConnell, although its principal place of business is located in Mobile, in the course of that business has sold motor vehicles to customers who reside out of state; and that McConnell has financed motor vehicles with companies whose principal places of business are not within Alabama.”

849 So.2d at 161-62. Nevertheless, the main opinion concludes that the transaction did not substantially affect interstate commerce because, it reasons, the sale from McConnell to Jackson was an in-state sale, for cash, between an in-state seller and an in-state buyer. I dissent because I believe the main opinion applies the wrong test and therefore reaches an incorrect result.

Standard of Review

This Court reviews de novo a trial court’s denial of a motion to stay its proceedings pending 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 application for 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. 23 (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 194r-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. Filbum, 317 U.S. Ill, 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, ... ie., 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. A transaction involving the purchase or sale of an automobile — such as the transaction in the case now before this Court — is a matter of commerce. See M.S. Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999); Phelps v. Dan Tucker Auto Sales, Inc., 672 So.2d 790 (Ala.1995).

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, 518 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 the 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. at 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.

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 to us 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 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.

The argument in the main opinion that Jackson’s cash purchase of the car in Alabama does not affect interstate commerce is not persuasive because this Court should not examine only the individual transaction; Filburn’s wheat was grown and consumed entirely intrastate. This Court should consider aggregate nationwide participation in the activity at issue. The record, in this case, reflects that McConnell is in the business of selling cars to customers who reside within and outside this state. McConnell has also financed cars for customers with companies whose principal places of business are outside of Alabama. (McConnell’s Brief at 8.) McConnell’s sale of the car to Jackson is a part of its business of purchasing and selling cars to people inside and outside of Alabama; thus, while this individual transaction may have been local, the aggregate nationwide participation was not.

McConnell has shown a substantial effect on interstate commerce. Although it is undisputed that Jackson is an Alabama resident, that McConnell Automotive Corporation is an Alabama corporation, and that the purchase of the car occurred entirely within Alabama, McConnell has presented “ ‘some evidence which tends to establish its claim,’ ” Jim Burke Auto., Inc. v. Beavers, 674 So.2d at 1265 (opinion on application for rehearing) (quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). The affidavits presented by McConnell indicate that these transactions were “part of a pattern of economic activities that in the aggregate affected interstate commerce.” Tefco, 793 So.2d at 760. The pattern demonstrated by McConnell is that it sells cars to, and finances those purchases for, out-of-state residents. Therefore, McConnell’s agreement to arbitrate is properly reached by the FAA, and Jackson’s claim should have been submitted to arbitration.

Conclusion

For the foregoing reasons, I dissent.

      . In their complaint, Robert Jackson and Ki-sha Jackson also alleged that the defendants had fraudulently induced them to execute the arbitration agreement that is the subject of this appeal. The defendants, in a footnote in their brief on appeal, state:
      "It is the Defendants' position that Robert Jackson should not be a Plaintiff in this case. The sole purchaser of the subject vehicle was Kisha Jackson. All documents where signed only by Kisha Jackson. Therefore, whether or not Robert Jackson signed the Arbitration Agreement is not an issue on this appeal, and not a basis for the Court’s denial of the Defendant’s Motion to Dismiss or, Alternatively, Motion to Compel Arbitration.”
      (Defendants’ brief, p. 1.) In their brief on appeal, the Jacksons do not respond to the footnote, and we note that only Kisha Jackson signed the documents that are the subject of this appeal. In fact, the Jacksons' counsel, in their brief, states that "[o]n or about March 8, 2001, Kisha Jackson purchased a 1999 Cadillac DeVille from McConnell ... [and] paid the full purchase price in cash.” (Jacksons’ brief, p. 4.) In the statement of facts, the Jacksons' counsel refers only to what Kisha Jackson did, except for one instance where he states that "Kisha Jackson’s husband, Robert Jackson, asked whether Kisha Jackson had been asked to execute an 'Arbitration Agreement’ because the vehicle had been wrecked.” (Jacksons' brief, p. 5.)

      . See note 1.

      . Effective October 1, 2001, Rule 4(d), Ala. R.App. P., provides: "An order granting or denying a motion to compel arbitration is appealable 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), Ala. R. Civ. P.”

      . 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.

      . The main opinion distinguishes this case from McGrue. In McGrue, this Court applied Sisters of the Visitation v. Cochran, 775 So.2d 759, 764 (Ala.2000), in which 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 579, 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 of 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.

      . I dissented in Sisters of the Visitation, stating:
      "I agree with both Chief Justice Hooper and Justice Maddox that the majority opinion incorrectly extends United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The majority requires that an individual transaction 'substantially affect’ interstate commerce before it can be subject to the Federal Arbitration Act (the 'FAA'). The majority also establishes a higher standard of 'substantial effect' than is permitted under existing United States Supreme Court precedent. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The United States Supreme Court has held that in the FAA Congress exercised the full scope of its Commerce Clause power. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Until the United States Supreme Court overrules Wickard, Congress may constitutionally subject to federal jurisdiction economic activity that affects interstate commerce, as long as that effect is substantial when considered in the aggregate. I, therefore, respectfully dissent.”
      775 So.2d at 782.

      . In an affidavit, Stacy Hill, the used-car manager of McConnell, stated that "McConnell Automotive Corporation, has sold motor vehicles to customers who reside out of state."


author: CRAWLEY, Judge.

text:
    Barbara Ann HORNE and Michael T. Horne v. GREGERSON’S FOODS, INC.
    2010512.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.
    Clark Hall, Gadsden, for appellants.
    F. Michael Haney of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee.
   CRAWLEY, Judge.

Barbara Ann Horne and Michael T. Horne appeal from the summary judgment for Gregerson’s Foods, Inc. (“Greger-son’s”). We reverse and remand.

On May 15, 2000, the Hornes sued Gre-gerson’s seeking compensatory and punitive damages. The Hornes alleged that Gregerson’s had acted negligently and wantonly by allowing water to collect on its floor, which, the Hornes say, caused Barbara to slip and fall; the complaint also contained a count in which Michael alleged a loss of consortium. On May 25, 2000, Gregerson’s filed an answer to the Hornes’ complaint. On April 3, 2001, Gregerson’s filed a motion for a summary judgment and supporting brief to which caselaw and portions of Barbara’s deposition testimony were attached as exhibits. Gregerson’s argued that it did not have notice that the water was on the floor and that it was not liable for Barbara’s injuries because, it argued, Barbara was aware of the water on the floor. On June 22, 2001, the Hornes filed a response to Gregerson’s motion for a summary judgment; they attached portions of Barbara’s deposition testimony as an exhibit. The Hornes contended that the water on the floor was caused by a Gregerson’s employee packing ice in the produce bins, that Gregerson therefore had notice of the condition, and that Barbara did not realize the water was on the floor until she was standing in it. On September 20, 2001, the trial court entered a summary judgment for Greger-son’s without stating any specific findings.

On October 11, 2001, the Hornes filed a motion to reconsider; attached to the motion as exhibits were an affidavit by Barbara, portions of the deposition testimony of her and David Dewberry, Gregerson’s produce manager, and caselaw. On November 13, 2001, the Hornes supplemented their motion. The trial court never ruled on the Hornes’ postjudgment motion. On February 21, 2002, the Hornes filed a notice of appeal. On March 27, 2002, this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the Hornes argue that the trial court erred by entering a summary judgment for Gregerson’s because, they say, Barbara was attempting to remove herself from the water on the floor, which, she says, she did not notice until she was standing in it, and which was present because of a Gregerson’s employee packing its produce bins with ice. Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

I. Notice

The first ground Gregerson’s asserted in support of its motion for a summary judgment was that it did not have notice that the water was on the floor. In their brief to this court, the Hornes contend that Gregerson’s had notice of the water on the floor because its employee caused the water to be there as a result of packing ice in its produce bins. In Denmark v. Mercantile Stores Co., 844 So.2d 1189 (Ala.2002), our supreme court observed:

“A store owner’s duty is well-established. That duty is ‘to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.’ Maddox v. K-Mart Corp., 565 So.2d 14, 16 (Ala.1990). Consequently, injured ‘plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [the store owner] can be held responsible for the injury.’ Id. Where, however, ‘ “ ‘the defendant or his employees have affirmatively created the dangerous condition, [the] plaintiff need not introduce evidence that [the] defendant had actual or constructive knowledge of the hazard. Under such circumstances, the courts presume notice.’ ” ’ Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861, 864 (Ala.2001) (emphasis added) (quoting Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala.1993), quoting in turn Joseph A. Page, The Law of Premises Liability § 7.11 at 169 (2d ed.1988)). See also Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990). This Court has held that where a shopper trips over merchandise protruding from a box that is part of a ‘barbeque grill display’ evidently arranged by store employees, the store owner’s knowledge of a hazardous condition is presumed. Rolin, 813 So.2d at 865.
“The procedure on a summary-judgment motion is equally well-established. ‘On a motion for a summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law.’ Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996); Rule 56, Ala. R. Civ. P. See McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Thus, ‘[t]he burden to present evidence that will establish a genuine issue of material fact does not shift to the nonmovant unless the mov-ant [first] satisfies its burden.’ O’Barr v. Oberlander, 679 So.2d 261, 263 (Ala.Civ.App.1996).”

844 So.2d at 1192-93.

In support of its motion for a summary judgment, Gregerson’s failed to present any evidence indicating that the water on the floor was not caused by its own employee packing its produce bins with ice. Thus, the burden never shifted to the Hornes to present evidence to create a genuine issue of material fact as to this issue, and we must presume that Greger-son’s had notice of the water on the floor. Accordingly, Gregerson’s would not be due a summary judgment based on its lack of notice of the dangerous condition created by the presence of water on the floor.

II. Open and Obvious Danger

Gregerson’s second ground in support of its motion for a summary judgment was that Barbara saw the water on the floor before she slipped and fell. While Barbara did state that she saw the water on the floor in her deposition testimony attached in support of Gregerson’s motion for a summary judgment, she also stated that when she first saw the water she was already standing in it. She further stated that she slipped and fell once she attempted to step out of the water. Therefore, the evidence presented in support of Gre-gerson’s motion for a summary judgment does not present a scenario in which Barbara saw the water, attempted to navigate around it, and then fell, as it attempts to suggest. See Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1105 (Ala.Civ.App.2001) (summary judgment was due to be entered for premises owner when plaintiff testified that “he carefully navigated around the open and obvious obstacle”)

In Denmark, supra, the supreme court also stated:

“A condition is ‘open and obvious’ when it is ‘known to the [plaintiff] or should have been observed by the [plaintiff] in the exercise of reasonable care.’ Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980). ‘The entire basis of [a store owner’s] liability rests upon [its] superi- or knowledge of the danger which causes the [customer’s] injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the [store owner] cannot be held liable.’ Id. (citation omitted).
“In this connection, Mercantile argues: ‘To prevail, ... the Plaintiffs must also establish that Mrs. Denmark was ignorant or should have been ignorant of the condition she alleges to have been dangerous.’ Mercantile’s Brief, at 22. However, Mercantile’s argument that the condition that caused Mrs. Denmark’s fall was open and obvious is an affirmative defense, on which it bears the ultimate burden of proof. See Ex parte Neese, 819 So.2d 584 (Ala.2001); Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.1983); see also Hale v. Sequoyah Caverns & Campgrounds, Inc., 612 So.2d 1162, 1165 (Ala.1992) (‘the traditional common-law “open and obvious danger” defense ... completely bars recovery if the danger is known by, or is obvious to, the plaintiff) (Hornsby, C.J., concurring in the result); Vick v. H.S.I. Mgmt., Inc., 507 So.2d 433, 435 (Ala.1987) (‘ “[T]he evidence, including evidence bearing on the defense of ‘open and obvious danger,’ viewed in light of the applicable substantive law, presents genuine issues of fact.” ’); Coggin v. Starke Bros. Realty Co., 391 So.2d 111, 113 (Ala.1980); Ford v. Bynum Livestock & Comm’n Co., 674 So.2d 600, 603 (Ala.Civ.App.1995) (‘dispositive issue [is] whether the evidence conclusively showed that [the plaintiff] knew of, and appreciated, a dangerous condition so as to give rise to the “open and obvious danger” defense’).
“Only ‘ “[w]hen there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law” ’ is a summary judgment proper. Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala.1999) (quoting Bechtel v. Crown Central Petroleum Corp., 495 So .2d 1052, 1053 (Ala.1986)). ‘ “If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate.” ’ Id.
“Moreover, ‘ “[t]he manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If, as is the case when the movant is the defendant asserting an affirmative defense, ‘ “the movant has the burden of proof at trial, the movant must support his motion with credible evidence, using any of the material specified in Rule 56(c), [Ala.] R. Civ. P. (‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits’).” ’ 769 So.2d at 909. ‘ “The movant’s proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial.” ’ Id. In other words, “when the movant has the burden [of proof at trial], its own submissions in support of the motion must entitle it to judgment as a matter of law.’ Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.1998) (emphasis added). See also Equal Employment Opportunity Comm’n v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2001); Rushing v. Kansas City Southern Ry., 185 F.3d 496 (5th Cir. 1999); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986); Calderone v. United States, 799 F.2d 254 (6th Cir.1986). Whether a condition is open and obvious is generally a question for the jury. Howard v. Andy’s Store for Men, 757 So.2d 1208, 1211 (Ala.Civ.App.2000).”

844 So.2d at 1194-95.

The evidentiary submission in support of Gregerson’s claim that the water on the floor was an open and obvious danger was Barbara’s deposition testimony that she saw the water before she slipped. However, as previously stated, Barbara also testified that she did not see the water until she was standing in it. Gregerson’s thus failed to meet its burden on its summary-judgment motion in that there remains a genuine issue as to whether the water on the floor was open and obvious. The trial court’s judgment is reversed, and this cause is remanded for the trial court to proceed in a manner consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.