author: MADDOX, Retired Justice. JOHNSTONE, Justice

text:
    Susan A. STEVENS v. Uta PHILLIPS.
    1010976.
    Supreme Court of Alabama.
    Dec. 6, 2002.

      G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.

      Patrick C. (Rick) Davidson and Matthew W. White of Adams, Umbach, Davidson & White, L.L.P., Opelika, for appellee.
   MADDOX, Retired Justice.

The issue in this case is whether the trial judge erred in compelling the plaintiff, the purchaser of a manufactured home, to arbitrate the claims made in her complaint in which she named a single defendant, the salesperson of the manufactured home, who was also the general sales manager of the dealership, on the ground that the salesperson did not sign the arbitration agreement in her individual capacity, as the salesperson, but instead signed it in her representative capacity as the general sales manager of the dealership.

To decide the issue presented in this case, this Court must determine, in view of the particular facts of this case: (1) whether the defendant, who, the plaintiff claims, did not sign the agreement in her individual capacity, has standing to enforce the arbitration agreement; (2) if so, whether the transaction involving the sale and financing of the manufactured home had a substantial affect on interstate commerce; and (3) whether the arbitration agreement was unenforceable because (a) it imposed on the consumer the costs of the arbitration process; (b) the agreement was not disclosed in a written warranty; and (c) the agreement violated the due-process protocol of the American Arbitration Association.

Facts

Susan A. Stevens purchased a manufactured home from Southern Investment Corporation d/b/a Southern Homes, Inc. (“Southern Homes”), 1900 Columbus Parkway, Opelika, on or about December 13, 2000. It is undisputed that Stevens was a resident of Alabama at the time of the sale and that Southern Homes was an Alabama corporation, and that the defendant, Uta Phillips, was the general sales manager of Southern Homes and was also the salesperson of the manufactured home that Stevens bought. Indies House Manufactured Homes, the manufacturer of the home, was an Alabama corporation, and the home was manufactured in Hackleburg, Alabama, although there was evidence indicating that many of the materials used in the construction of the manufactured home came from out of state.

At the time Stevens purchased the manufactured home, she executed at least two arbitration agreements. One agreement was a stand-alone arbitration agreement, which is attached to this opinion as an appendix. On the date of purchase, Stevens also executed a document entitled, “Alabama Retail Installment Contract, Security Agreement, Waiver of Trial by Jury, and Agreement to Arbitration or Reference or Trial by Judge Alone” (“the contract”), which, in pertinent part, includes the following provisions:

“ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL:
“a. Dispute Resolution. Any controversy or claim between or among you and me or our assignees arising out of or relating to this contract or any agreements or instruments relating to or delivered in connection with this contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below. A controversy involving only a single claimant, or claimants who are related or asserting claims arising from a single transaction, shall be determined by arbitration as described below. Any other controversies shall be determined by judicial reference of the controversy to a referee appointed by the Judge or, if the Court where the controversy is venued lacks the power to appoint a referee, by trial by a Judge without a jury, as described below. YOU AND I AGREE AND UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO TRIAL BY JURY, AND THERE SHALL BE NO JURY WHETHER THE CONTROVERSY IS DECIDED BY ARBITRATION, BY JUDICIAL REFEREE, OR BY TRIAL BY A JUDGE.
“b. Arbitration. Since this contract touches and concerns Interstate Commerce, an arbitration under this contract shall be conducted with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this contract. The Commercial Rules of the American Arbitration Association (‘AAA’) also shall apply. The arbitrator(s) shall follow the law and shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award of the arbitrator^) shall be in writing and include a statement of reasons for the award. The award shall be final. Judgment upon the award may be entered in any court having jurisdiction, and no challenge to entry of judgment upon the award shall be entertained except as provided by Section 10 of the United States Arbitration Act or upon a finding of manifest injustice.... ”

(Capitalization and bold in original.) The following terms are defined at the beginning of the contract: “ ‘I,’ ‘me,’ ‘myself,’ or ‘my’ mean[s] all persons who sign this Contract as buyer or co-buyer, jointly and severally, and ‘you’ or ‘your’ mean[s] the Seller and any assignee.” The arbitration provision in the contract and the standalone arbitration agreement are hereinafter sometimes referred to together as “the arbitration agreement.”

On or about February 26, 2001, Stevens sent Phillips a letter regarding the condition of the manufactured home she had purchased. In the letter, she demanded that certain repairs be made to the home and she also demanded money damages for various problems relating to the condition of her home. On or about March 15, 2001, before Stevens filed this action, Southern Homes filed a “Demand for Arbitration” with the American Arbitration Association seeking to arbitrate the claims Stevens made in her letter. On or about March 23, 2001, Stevens filed this action against Phillips individually.

Stevens’s complaint contained three counts: Count I alleged that Phillips was guilty of misrepresentation, in that Phillips represented to her that the sale of the home would include “furniture and a deck and that the home would be delivered, installed, and ready for occupancy by December 19, 2000,” that “[t]he defendant further promised and represented to her that any problems in the home would be promptly repaired, within twenty-four hours in the case of leaks,” and that “[t]he defendant consciously and deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff’; count II alleged promissory fraud, averring that Phillips, when she made the promise that the home would include furniture and a deck, had no intent to provide the furniture and a deck as a part of the bargain they had made; and count III claimed that the arbitration agreement, which Stevens admitted she signed, “permitted the purchaser and the salesperson to also agree to arbitrate disputes between themselves,” but that “[t]he defendant Uta Phillips, who was the salesperson, never executed the agreement to arbitrate disputes with plaintiff,” and that “[b]y filing this complaint, the plaintiff does hereby [revoke her offer] to arbitrate disputes with the defendant, Uta Phillips.”

With respect to counts I and II, Stevens, although not naming Phillips’s employer, Southern Homes, as a party, nevertheless included allegations relating to Southern Homes, as follows:

“With respect to any conduct herein for which a principal or employer is to be held liable for the wrongful conduct of an agent, servant, or employee, the plaintiff alleges that the principal knew or should have known of the unfitness of the agent, servant, or employee, and employed [her] or continued to employ [her] or continued to use [her] services without proper instruction or with a disregard of the rights or safety of others; or authorized the wrongful conduct; or ratified the wrongful conduct; or the act of the agent, servant, or employee was calculated to or did benefit the principal or employer.”

This paragraph appeared in both counts I and II of Stevens’s complaint.

On or about April 25, 2001, Phillips filed a motion to compel arbitration. In an affidavit submitted in support of her motion, she stated that Stevens’s purchase of the manufactured home “was financed through Green Point Credit Company, which is headquartered in Cincinnati, Ohio,” and that “[t]he actual sales documents and credit approval came from Green Point Credit in Pensacola, Florida.” Phillips also attached to her affidavit documents that she averred were “maintained in the files of Southern Homes in the normal course of business”; one of those documents was the contract signed by Stevens and Phillips, who signed in her representative capacity for Southern Homes, the pertinent provisions of which have already been quoted.

Phillips also filed an affidavit made by Tony Capasso, the controller for Indies House Manufactured Homes, who stated that, based upon the records of the company, “the home purchased by Ms. Stevens would be constructed with materials purchased and paid for through Interstate Commerce in excess of $14,000.”

Although the trial judge initially denied Phillips’s motion to compel arbitration on December 18, 2001, Phillips filed a motion to reconsider the denial and a second motion to compel arbitration on January 11, 2002; she attached as an exhibit the standalone arbitration agreement, attached to this opinion as an appendix. After considering Phillips’s submission and Stevens’s response, the trial court rescinded its December 18, 2001, order denying Phillips’s motion to compel arbitration and entered the following order, compelling Stevens to arbitrate her claims against Phillips:

“On January 11, 2002, the Defendants filed a Motion entitled ‘Motion to Reconsider Denial of the Defendants’ Motion to Compel Arbitration and Defendants’ Second Motion to Compel Arbitration.’ The Court has reviewed two cases directly on point: Ex parte Gray, 686 So.2d 250 (Ala.1996), and Monsanto Company v. Benton Farm, 813 So.2d 867 (Ala.2001). The Monsanto case involved the sale of cottonseed and the lawsuit was filed in Lowndes County, Alabama, against various entities including Dixie Agricultural Supply ‘DAS.’ The Plaintiffs had executed an Arbitration Agreement with DAS. They also sued an employee of DAS, named Smith. The Circuit Court granted DAS’s Motion to Compel Arbitration but denied Smith’s Motion to Compel Arbitration. Smith appealed. Smith argued that under the authority of Ex parte Gray, 686 So.2d 250, 251 (Ala.1996), ‘he should be able to compel arbitration of the plaintiffs’ claims against him, as a nonsigna-tory, because he was an agent of DAS, the only defendant whose motion to compel arbitration was granted.’ [813 So.2d at 873.] Justice Harwood, writing for the majority, agreed, stating:
“ ‘The plaintiffs’ claim against DAS and Smith arise out of the same circumstances, i.e., Smith’s representations, made while he was acting as an agent of DAS and within the scope of his employment with DAS, concerning the sale of Technology Cottonseed to the plaintiffs.... ’
“[813 So.2d at 874.] The Alabama Supreme Court went on to hold that Smith stood in the shoes of his principal, not only as to the question of liability, but also to the question of coverage of the Arbitration Agreement used by DAS in the sale to the plaintiffs. In Ex parte Gray, the Plaintiffs suit arose out of the sale of an automobile. The Plaintiff had executed an Arbitration Agreement with the dealership. In order to avoid arbitration the Plaintiff only sued the salesman, Gray, and not the dealership. The Supreme Court held that a party should not be able to avoid arbitration by merely suing an employee of the principal.
“It is the Court’s opinion that the Court’s Order dated December 18, 2001, should be rescinded and that the Defendants’ Motion to Compel Arbitration is due to be GRANTED.”

Standard of Review

In BankAmerica Housing Services v. Lee, 833 So.2d 609 (Ala.2002), this Court stated:

“This Court’s review of an order granting a motion to compel arbitration is de novo. See W.D. Williams, Inc. v. Ivey, 777 So.2d 94 (Ala.2000); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999). Therefore, this Court must determine “whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).”

833 So.2d at 617.

I.

Stevens primarily argues that the arbitration agreement attached as an appendix to this opinion is unenforceable in this case because, she argues, the agreement did not cover “agents and employees,” but, in fact, contained a specific provision relating to disputes between the purchaser and the salesperson, and Phillips failed to sign this provision as the salesperson. Consequently, Stevens argues, Phillips lacks standing to compel arbitration because she did not sign the agreement in her individual capacity, on the line marked “Salesperson.”

Phillips counters this argument by contending that she, as the selling agent for Southern Homes, is entitled to enforce arbitration. In support of her argument, she relies on the two cases the trial court relied on in compelling Stevens to arbitrage her dispute—Ex parte Gray, 686 So.2d 250 (Ala.1996), and Monsanto Co. v. Benton Farm, 813 So.2d 867 (Ala.2001). In Ex parte Gray, Gray, a customer of an automobile dealership, sued the dealership and the salesman. The trial court issued an order staying the action pending arbitration, and the customer petitioned this Court for a writ of mandamus vacating that order. This Court denied the petition, holding that Gray was compelled to arbitrate his complaints against both the dealership and the salesman, even though the agreement containing the arbitration provision was signed only by the customer and the dealership. The arbitration provision included in the “Retail Buyer’s Order” Gray signed read as follows:

“I hereby acknowledge and agree that all disputes and controversies of every kind and nature between myself and Crown Pontiac Nissan, Inc., arising out of or in connection with the purchase of this vehicle by me, will be resolved by arbitration in accordance with the procedure set forth in this Retail Buyer’s Order.”

686 So.2d at 251. This Court, in denying the petition for the writ of mandamus, stated:

“As the trial court noted in its order compelling arbitration, the thrust of Gray’s complaint against Crown and Pardue [the salesman] is that Pardue, as Crown’s agent, while acting within the line and scope of his agency, falsely represented the condition of the vehicle Gray was buying. Clearly, Gray’s claim comes within the arbitration agreement, and that agreement is binding upon all the parties and is enforceable under the controlling law. See Ex parte Gates, 675 So.2d 371 (Ala.1996); and see Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 239 S.E.2d 401 (1977) (holding that an employee— an account representative — of Paine, Webber, who was not a signatory to the contract containing the arbitration agreement, was entitled to the benefit of that agreement). A party should not be able to avoid an arbitration agreement merely by suing an employee of a principal.”

686 So.2d at 251 (emphasis added).

In Monsanto, this Court discussed the rights of a salesperson to “stand in the shoes” of the employer and enforce arbitration, even though the salesperson was a nonsignatory to the arbitration agreement. In that case, which involved facts similar to the facts of this case, this Court reviewed the law relating to the right of a nonsignatory to enforce an arbitration agreement. This Court stated:

“Smith argues that under the authority of Ex parte Gray, 686 So.2d 250, 251 (Ala.1996), he should be able to compel arbitration of the plaintiffs’ claims against him, as a nonsignatory, because he was an agent of DAS, the only defendant whose motion to compel arbitration was granted.
“In Gray, the plaintiff sued an automobile dealership and its salesperson, alleging fraud. The plaintiff did not dispute that the dealership could compel arbitration, based on the agreement he had signed with the dealership, but he argued that the salesperson was not entitled to enforce arbitration because the salesperson was not a signatory to the arbitration contract. This Court held that because the plaintiffs claim was based on the allegation that the salesperson had been acting within the line and scope of his agency at the time the allegedly false representations were made, that claim was covered by the arbitration agreement with the dealership. The Court stated, ‘A party should not be able to avoid an arbitration agreement merely by suing an employee of a principal.’ 686 So.2d at 251.
“Implicit in the Gray opinion is the settled rule of agency that an agent ‘stands in the shoes’ of his principal. See American States Ins. Co. v. C.F. Halstead Developers, Inc., 588 So.2d 870 (Ala.1991). Thus, an agent who has incurred liability for his principal by acting in the line and scope of his employment also ‘stands in the shoes’ of his principal with respect to the principal’s rights in the transaction. This rationale is succinctly stated in Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121 (3d Cir.1993):
“ ‘Under traditional agency theory, she [the nonsignatory agent] is subject to contractual provisions to which MLPF & S [the principal] is bound. Barrowclough [v. Kidder, Peabody & Co., Inc.], 752 F.2d [923] at 938 [(3d Cir.1985)]. Because a principal is bound under the terms of a valid arbitration clause, its agents, employees, and representatives are also covered under the terms of such agreements. See, Arnold v. Arnold Corp., 920 F.2d 1269, 1281-82 (6th Cir.1990); Letizia v. Prudential Bache Securities, 802 F.2d 1185, 1187-88 (9th Cir.1986).’
“This Court has applied a comparable analysis not only in Gray, but also in McDougle v. Silvernell, 738 So.2d 806 (Ala.1999), and Ex parte Isbell, 708 So.2d 571 (Ala.1997). See also, Georgia Power Co. v. Partin 727 So.2d 2 (Ala.1998).
“In the present case, the plaintiffs’ claims against DAS and Smith arise out of the same circumstances, i.e., Smith’s representations, made while he was acting as an agent of DAS and within the line and scope of his employment with DAS, concerning the sale of the Technology Cottonseed to the plaintiffs. The trial court has already ordered the plaintiffs to arbitrate their claims against DAS, and the plaintiffs did not appeal that order. Ordering Smith, DAS’s agent, to a trial on the same facts and legal theories would be anomalous. Under the circumstances of this case, Smith ‘stands in the shoes’ of his principal, DAS, not only as to the question of liability, but also as to the question of the coverage of the arbitration provision used by DAS in the sales to the plaintiffs. Gray and McDougle, supra. The trial court’s orders are therefore due to be reversed insofar as they relate to Smith.”

813 So.2d at 873-74.

In a special concurring opinion in Monsanto, Justice Johnstone disagreed with some of the rationale in the majority opinion in Monsanto, but stated, with regard to Smith’s right to compel arbitration:

“I agree, however, that the specialized rule of Ex parte Gray, 686 So.2d 250 (Ala.1996), accords the agent Smith in the case before us the same arbitration rights as his principal Dixie Agricultural Supply, which has won an unappealed order compelling arbitration. Compare Anvil v. Johnson, 806 So.2d 343 (Ala.2001) (no right to compel arbitration accorded to a non-signatory agent whose signatory principal lost its motion to compel arbitration and did not appeal the denial (no intertwining without two threads to twine together)). Therefore I concur in the judgment of this Court reversing the denial of Smith’s motion to compel arbitration.”

813 So.2d at 875 (Johnstone, J., concurring in cases no. 1000900, no. 1000901, and no. 1000902, and concurring in the judgment and in the rationale in part in case no. 1000903).

Although unlike Monsanto, no order in this case compels Stevens to arbitrate her claims against Southern Homes, it is undisputed that, on or about March 15, 2001, before Stevens filed this action, Southern Homes filed a “Demand for Arbitration” with the American Arbitration Association regarding the claims made by Stevens in her letter. In count I and count II, Stevens alleged in paragraphs 8 and 18, respectively:

“With respect to any conduct herein for which a principal or employer is to be held liable for the wrongful conduct of an agent, servant, or employee, the plaintiff alleges that the principal knew or should have known of the unfitness of the agent, servant, or employee, and employed [her] or continued to employ [her] or continued to use [her] services without proper instruction or with a disregard of the rights or safety of others; or authorized the wrongful conduct; or ratified the wrongful conduct; or the act of the agent, servant, or employee was calculated to or did benefit the principal or employer.”

Stevens, however, did not make Southern Homes a defendant or take any action, insofar as we can tell from the record before us, regarding the arbitration proceeding or the allegations she made in the paragraph quoted above.

Based on the record before us, which contains two arbitration agreements executed by Stevens, it appears that Stevens’s claims against Phillips arise out of representations allegedly made by Phillips, while she was acting as an agent within the line and scope of her employment with Southern Homes; therefore, we hold that under the circumstances presented by this case, Phillips “stands in the shoes” of her principal.

II.

Stevens further argues that even if Phillips can claim the benefits under the arbitration provision Phillips failed to carry her burden of showing that the transaction substantially' affected interstate commerce. See American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284-85 (Ala.2001)(“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.”).

As we have already pointed out, Phillips, in an effort to carry her burden of showing that Stevens’s purchase of the manufactured home substantially affected interstate commerce, filed two affidavits. One of those affidavits was by Tony Ca-passo, the controller for Indies House Manufactured Homes, who stated that, according to the records of that company, “the home purchased by Ms. Stevens would be constructed with materials purchased and paid for through Interstate Commerce in excess of $14,000.” The other affidavit was by Phillips; it stated that the manufactured home was financed through Green Point Credit Company, which is headquartered in Cincinnati, Ohio, and that the actual sales documents were prepared by and the credit approval was sought from Green Point Credit in Pensacola, Florida.

This evidence was sufficient to show that the transaction substantially affected interstate commerce. In Ex parte Thicklin, 824 So.2d 723 (Ala.2002), this Court, quoting Southern Energy Homes, Inc. v. McCray, 788 So.2d 882 (Ala.2000), stated, “ ‘An Alabama resident’s purchase of a new mobile home — even one manufactured in Alabama — can be a transaction that substantially affects interstate commerce.... ’ 788 So.2d at 883 (footnote omitted).” In Ex parte Thicklin, this Court discussed the evidence presented in that case to show that the sale of the manufactured home involved interstate commerce, as follows:

“Riverchase and Fantasy presented evidence concerning the effect on interstate commerce of Thicklin’s purchase of her mobile home. An affidavit provided by Fantasy’s sales manager states, in pertinent part:
“ ‘4. The mobile home purchased by Ms. Thicklin was manufactured by defendant Riverchase/Cavalier, an Aa-bama corporation. [Fantasy] purchases manufactured homes for resale from at least one foreign corporation that ships their products into Aabama from out-of-state locations. [Fantasy] frequently orders home decorations from a Georgia company to be shipped and delivered to [Fantasy’s] location in Aabama.
“ ‘5. The mobile home purchased by Ms. Thicklin was financed by an entity located out-of-state, Bombadier Capital, whose lienholder address is in Cincinnati, Ohio. [Fantasy] sent Thicklin’s finance paperwork to Bom-badier Capital’s Jacksonville, Florida office.’
“An affidavit provided by Riverchase’s sales manager states, in pertinent part:
“ ‘Cavalier Manufacturing, Inc. is a Delaware corporation with its principal place of business in Winston County, Aabama. Riverchase Homes is a division of Cavalier Manufacturing, Inc. Riverchase Homes is a manufacturer of manufactured housing. Riv-erchase Homes does not sell homes directly to the retail customer. River-chase Homes sells homes to retailers, who then sell the homes to the ultimate consumer.
“ ‘Riverchase Homes provides a limited warranty with each home. Those homes sold by Riverchase Homes are transported by independent common carrier. A copy of the warranty is transported with each home.
“ ‘Riverchase Homes manufactures homes in Marion County, Aabama. Riverchase Homes has suppliers around the country. Component parts of each home are transported by supplier via interstate commerce. Each home built by Riverchase Homes contains component parts transported by interstate commerce. In addition, appliances are supplied in each home. The appliances are purchased from manufacturers. Some, if not all, of these appliances are shipped to Riverchase Homes from other states.’
“We conclude that the evidence in this case indicates that Thicklin’s purchase of her mobile home was a transaction that substantially affected interstate commerce. Therefore, the [Federal Abi-tration Act] applies to this transaction.”

824 So.2d at 727-28. In McCray, supra, cited in Ex parte Thicklin, the evidence established that, although Southern Energy manufactured mobile homes in Aa-bama, the funds it used to conduct its business came from banking institutions located outside of Aabama and many of the parts incorporated into the mobile homes were acquired from suppliers outside of Aabama and were shipped in interstate commerce to Southern Energy’s plant in Aabama. 788 So.2d at 883 n. 1.

Athough there is less evidence in this case showing that the transaction substantially affected interstate commerce than there was in Ex parte Thicklin and McCray, we conclude, as this Court did in Ex parte Thicklin, that the evidence indicates that Stevens’s purchase of her manufactured home was a transaction that substantially affected interstate commerce. Therefore, we find that the Federal Abi-tration Act applies to this transaction.

III.

Stevens argues (1) that the arbitration agreement in this case “covers all warranty disputes concerning the manufactured home, and it expressly provides that the ‘purchaser, retailer, manufacturer or lender’ may invoke the provision [but] is not disclosed in any written warranty” (Stevens’s brief, p. 21); and (2) that the arbitration agreement is unenforceable because it violates the consumer’s due-process protocol of the American Arbitration Association.

Stevens contends that “[i]n Ex parte Thicklin, [824 So.2d 723 (Ala.2002) ], the court held that the failure to disclose the arbitration provision in the warranty rendered the provision unenforceable as to any express-warranty and Magnuson-Moss claims.” (Stevens’s brief, p. 21.) She claims that the “provision requiring [Stevens] to arbitrate express-warranty and Magnuson-Moss disputes violates the Magnuson-Moss Act,” and that “[u]nlike the arbitration provision in Thicklin, however, the present arbitration provision contains no severability clause.” (Stevens’s brief, p. 21.)

We believe that this Court’s holding in Ex parte Thicklin is as broad as Stevens suggests. The plaintiff in Ex parte Thicklin sought to vacate an order of the trial court compelling arbitration of her claims against the seller and manufacturer of a mobile home for breach of warranty, violation of the Magnuson-Moss Warranty-Federal Trade Commission Act, negligence, and fraud. In Ex parte Thicklin, this Court did hold that the plaintiff could not be compelled to arbitrate her express-warranty and Magnu-son-Moss claims, because the arbitration clause was not contained in a written warranty, but that Thicklin could be required to arbitrate her other claims. Likewise, Stevens can be compelled to arbitrate her claims against Phillips, because those claims are not warranty claims but are “other claims.”

Regarding Stevens’s alternative argument that the arbitration agreement was unenforceable because it violated “the consumer due process protocol of the American Arbitration Association” (Stevens’s brief, p. 23), this Court, in Ex parte Thicklin, discussed a similar claim:

‘We recognize that certain of Thiek-lin’s claims remain arbitrable and that pursuant to her contract the [American Arbitration Association’s] Commercial Rules will govern those claims. Thicklin points to several examples in support of her argument that the arbitration clause is unconscionable, and, therefore, unenforceable, because, she says, it fails to satisfy minimum standards of procedural fairness for consumer transactions. The filing fee under the Commercial Rules, she says, is approximately $2,000, while filing a lawsuit costs approximately $200. Furthermore, she says, the arbitration clause in her contract does not disclose any of the basic information regarding the arbitration process required by the Due Process Protocol. However, Thicklin does not provide any evidence, such as her income, her family’s expenses, or the estimated costs of the arbitration procedure, that would support an argument that the use of the Commercial Rules renders the arbitration clause unconscionable from a financial standpoint. The United States Supreme Court has said that ‘[t]he “risk” that [the plaintiff] will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.’ Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). That risk here is also too speculative to justify a conclusion that requiring Thicklin to arbitrate the remainder of her claims (i.e., all claims other than her express-warranty and Magnuson-Moss Act violation claims) would be unconscionable. See also Palm Harbor Homes, Inc. v. Turner, [796 So.2d 295 (Ala.2001)].”

824 So.2d at 735.

In Ex parte Thicklin, Justice See, in a special concurrence, wrote the following on the issue of unconscionability:

“This Court established in Green Tree Financial Corp. v. Vintson, 753 So.2d 497 (Ala.1999), that the unconscionability of an arbitration clause is a question of law for the court and that the party claiming that such a clause is unconscionable bears the burden of proof. This Court has also held that ‘agreements to arbitrate are not in themselves unconscionable.’ Ex parte McNaughton, 728 So.2d 592, 598 (Ala.1998). Moreover, fundamental concepts of contract law require courts to uphold contracts when possible.
“In Wilson v. World Omni Leasing, Inc., 540 So.2d 713 (Ala.1989), this Court stated:
“ ‘Comment (1) of the official comments to § 7-2-302 sets out the basic test to determine unconscionability:
“ ‘ “[Wjhether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.... The principle is one of the prevention of oppression and unfair surprise ... and not of disturbance of allocation of risks because of superior bargaining power.” ’
540 So.2d at 716.
“In Ex parte Napier, 723 So.2d 49 (Ala.1998), this Court noted:
“ ‘[M]atters that could be germane to a determination of unconscionability [include] a refusal of [the plaintiffs] request for assistance after she had notified someone that she was unable to see or to understand [the arbitration clause]; [the plaintiffs] inability to obtain the product made the basis of this action from this seller, or from another source, without having to sign an arbitration clause; the oppressiveness or unfairness of the mechanism of arbitration; or the [unfairness] of a discount or other quid pro quo in exchange for [the plaintiffs] accepting an arbitration agreement.’
723 So.2d at 52 (footnote omitted).”

824 So.2d at 737-38 (footnotes omitted).

Based on the record before us and the above-cited authorities, we conclude that the trial court did not err in compelling Stevens to arbitrate her claims against Phillips. It is undisputed that Southern Homes, on March 15, 2001, instituted arbitration proceedings with the American Arbitration Association; the brief filed on behalf of Phillips on this appeal states:

“In the case at hand, Southern Homes has paid the cost of the filing fee with the American Arbitration Association, and said proceeding has been stayed pending the resolution of this appeal. Plaintiffs other costs in prosecuting her claims should be no different in arbitration, if not less, than in civil litigation in the Circuit Court of Lee County, Alabama.”

(Phillips’s brief, p. 35.) Stevens, in her reply brief, does not dispute or address this statement made in Phillips’s brief, or call our attention to evidence in support of her claim that the arbitration agreement in this case is unconscionable because it violates her due-process rights as a consumer. As previously stated, her main argument is that Phillips, in her individual capacity, was a nonsignatory and therefore could not compel arbitration, and that, even if we determined that Phillips had standing, the sale of the manufactured home did not substantially affect interstate commerce.

IV.

Based on the foregoing, we hold that the trial court did not err in compelling Stevens to arbitrate her claims against Phillips.

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

AFFIRMED.

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

LYONS, JOHNSTONE, and HARWOOD, JJ., concur in the result.

MOORE, C.J., dissents.

JOHNSTONE, Justice

(concurring in the result).

The record discloses that the plaintiff is, in fact, pursuing against the signatory dealer before the arbitrator essentially the same claims the plaintiff is pursuing against the nonsignatory agent Phillips before the circuit court. (The plaintiff is pursuing other claims as well against the signatory dealer before the arbitrator.) The record discloses that, while the plaintiff is contesting the issue of the arbitrability of all of these claims against the signatory dealer, the plaintiff has submitted this issue of arbitrability to the arbitrator herself. The classic operation of the doctrine of equitable estoppel intertwining on these facts, together with the other facts recited in the main opinion, entitles the nonsigna-tory agent Phillips to the benefit of the same arbitration agreement invoked by the signatory principal dealer. Auvil v. Johnson, 806 So.2d 343, 348 and 350 (Ala.2001). See also my special writing in Monsanto Co. v. Benton Farm, 813 So.2d 867, 875 (Ala.2001), cited in the main opinion. Monsanto is an archetypal equitable estoppel intertwining case in that, there, the signatory principal DAS had already conclusively established its right to enforce the arbitration agreement when this Court held that the nonsignatory agent too could enforce that agreement. Id.

APPENDIX

      . It is readily apparent from examining the arbitration agreement attached to this opinion as an appendix, that Stevens, as the purchaser, signed in two places, and that immediately above her second signature the following sentence appears: "ANY DISPUTE BETWEEN SALESPERSON AND PURCHASER WILL BE SETTLED THROUGH ARBITRATION.” It is also apparent that Phillips signed the agreement on behalf of "SOUTHERN HOMES OUTLET CENTER, A DIVISION OF SOUTHERN INVESTMENT CORP., 1900 COLUMBUS PKWY, OPELIKA, AL 36804," the retailer.

      . When Ex parte Gray was decided, a writ of mandamus was the appropriate remedy for the aggrieved party to pursue. Rule 4(d), Ala. R.App. P., adopted effective October 1, 2001, makes an order granting or denying a motion to compel arbitration reviewable by appeal.

      . The petition for the writ of mandamus in Ex parte Thicklin was filed before October 1, 2001, the effective date of Rule 4(d), Ala. R.App. P., which provides that review of an order granting or denying a motion to compel arbitration is by appeal. Before the adoption of Rule 4(d), review of an order granting a motion to compel arbitration was by petition for a writ of mandamus. Thus Ex parte Thicklin was decided under an abuse-of-discretion standard of review applicable to a petition for a writ of mandamus.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Jewel SAVOY v. Marion WATSON.
    2000703.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Dec. 30, 2002.

      James W. Killion and Roger C. Guilian of Killion & Associates, P.C., Mobile, for appellant.
    Mark C. Wolfe and J. Knox Boteler III of Moore & Wolfe, Mobile, for appellee.
   MURDOCK, Judge.

On November 7, 2000, a Mobile Circuit Court jury returned a verdict against Jewel Savoy and for Marion Watson in the amount of $637.60 for damages that Watson allegedly suffered as the result of an automobile collision. After the trial court entered a judgment on the jury verdict, Watson filed a Rule 59, Ala. R. Civ. P., motion for a new trial and the trial court granted that motion. Savoy appeals from the judgment granting Watson’s motion for a new trial.

In February 1999, a 1985 Buick LeSabre automobile driven by Savoy and a van driven by Watson were involved in an automobile collision at the intersection of U.S. Highway 90 and Demetropolis Road in Mobile County. Watson sued Savoy, alleging that Savoy had negligently caused the collision and that as a proximate result of the collision Watson had suffered personal injuries. The case was tried before a jury on November 7, 2000. At trial, Watson presented evidence indicating that Savoy proceeded into the intersection after the traffic signal for her lane had changed to red and that the front of Watson’s vehicle struck the rear passenger-side quarter panel of Savoy’s vehicle. Watson presented evidence indicating that as a result of the collision he incurred special damages of $687.60 for a visit to the emergency room at Springhill Memorial Hospital and $3,149 for chiropractic treatments. Watson also claimed damages for pain and suffering as a result of the collision.

The jury returned a verdict against Savoy and in favor of Watson for $637.60, and the trial court entered a judgment on that verdict. Watson filed a Rule 59, Ala. R. Civ. P., motion requesting that a new trial be granted because, he said, the jury’s verdict “was inconsistent with the uncontroverted damages presented.” Watson claimed that the evidence he presented for both the emergency room examination and his chiropractic treatments was uncontroverted and that the jury erred by failing to award him any damages for his alleged pain and suffering. Watson also argued that the trial court should grant his motion because, he said, the jury was tainted by a question asked by Savoy’s counsel during voir dire. The trial court granted Watson’s motion for a new trial but did not state the grounds for its decision. Savoy then filed a Rule 59(e), Ala. R. Civ. P., motion requesting that the trial court vacate its order granting Watson’s motion for a new trial. The trial court denied Savoy’s Rule 59(e) motion and Savoy has appealed to this court.

On appeal, Savoy argues that the trial court abused its discretion by granting Watson’s motion for a new trial because, she says, the jury verdict was not inconsistent or otherwise inadequate in light of the controverted and conflicting evidence presented regarding Watson’s alleged damages. Savoy also argues that her attorney’s alleged question to the venire during voir dire did not “taint the jury panel” so as to prevent Watson from receiving a fair trial.

In his motion for a new trial, Watson argued that the jury verdict was inconsistent because the jury awarded him special damages in the amount of $637.60. Watson argues that this award evidently reflects the amount of his emergency room expenses and is insufficient to compensate him for his alleged pain and suffering and the cost of his chiropractic treatments.

At trial, Watson admitted stating that he “felt all right” immediately after the collision. However he also testified that approximately 30 minutes after the collision he had begun to feel stiffness and a slight pain in his neck, lower back, and knee and that the pain had increased over the next few hours. Watson was examined at the emergency room of Springhill Memorial Hospital a few hours after the collision. The emergency room records state that Watson’s pain had become “worse with movement,” that he had tenderness in his neck and back, and that he apparently had complained about knee pain. Watson was diagnosed with a sprained neck and a strained lower back, but the examining physician noted the absence of any spasms. The records also reflect that Watson had degenerative changes in his neck and spine, that he had osteophytes in his neck, and that he had facet joint disease in his back.

After Watson’s examination at the emergency room, the attending physician prescribed medication and told Watson to “see Dr. Rutledge III in 2-3 days if [he had] not improved.” Watson testified that the stiffness and pain in his neck and back increased in the days following the emergency room examination. However, instead of arranging for an appointment with Dr. Rutledge, Watson stated that he had contacted Dr. James Gordon, a chiropractor, 12 days after the collision. The record reflects that at the time that Watson contacted Dr. Gordon, Watson had already contacted his attorney.

Dr. Gordon testified that the first time he examined Watson, Watson was complaining of pain in his lower back, neck, and right knee; he said that his alleged injuries had resulted from the collision with Savoy’s vehicle. Dr. Gordon testified that his examination indicated that Gordon had superficial and deep muscle spasms in his neck and tenderness and muscle spasms in his lower back. Dr. Gordon stated that those type of injuries were consistent with someone who had been involved in an automobile collision and that, in his opinion, Watson’s injuries had been caused by the collision with Savoy’s vehicle.

Dr. Gordon admitted that it was not uncommon for a patient who had a degenerative condition to complain of pain during testing for neck or lower back injuries. He also admitted that the osteophyte formations in Watson’s neck could have caused pain. However, Dr. Gordon stated that degenerative changes also would make a person more susceptible to an injury from a collision.

Dr. Gordon treated Watson several times a week for approximately two months, at which time Dr. Gordon noted “an absence of complaints[,] ... orthopedic tests within normal limits, so looks like he was back to near normal.” On cross-examination, Dr. Gordon admitted that in the past when he had testified for patients he had always testified that the injuries or conditions that he had treated the patient for had been caused by the accident in question. Dr. Gordon also testified that his bill for treating Watson totaled $3,149, and that his charges were reasonable and necessary. He admitted that he had charged Watson $500 for testifying at trial and $125 for writing a letter to Watson’s attorney, but denied that any payment would have affected his testimony or that payment of his bills depended on the outcome of Watson’s case.

As a general rule, jury verdicts are presumed to be correct and should not be set aside on the grounds of inadequacy of damages unless the amount awarded is so inadequate as to indicate passion, prejudice, or improper motive on the part of the jury. Shelby v. Phillips, 694 So.2d 30, 31 (Ala.Civ.App.1997). Thus, we “must review the evidence in the light most favorable to the prevailing party and must indulge all reasonable inferences that the jury was free to draw.” Floyd v. Broughton, 664 So.2d 897, 900 (Ala.1995); see also Cooper v. Peturis, 384 So.2d 1087 (Ala.1980). Where there is a dispute regarding the damages the plaintiff incurred as a proximate result of the defendant’s wrongful conduct, the determination of a damages award is exclusively within the discretion of the jury and the jury’s assessment should be afforded a strong presumption of correctness. Sizemore v. Patel, 702 So.2d 172, 174 (Ala.Civ.App.1997); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990); Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988). Furthermore, in exercising its discretion, a jury has the exclusive right to weigh evidence, give credibility (or not) to witnesses, and draw inferences from the evidence before it. Brannon, 562 So.2d at 1339; Slaughter v. Burrell, 669 So.2d 954, 955 (Ala.Civ.App.1995).

In the present case, neither the reasonableness nor the necessity of Watson’s chiropractic bills was undisputed. While Savoy stipulated to the reasonableness of Watson’s emergency room bills, there was no stipulation as to the necessity of the emergency room treatments. The jury could have awarded damages to compensate Watson for only part of the $637.60 incurred by Watson for emergency room expenses, or none of it. The balance of the $637.60, or all of it, could represent compensation awarded by the jury for Watson’s alleged pain and suffering. In other words, the jury could have reasoned . that Watson suffered some sprains or bruises, but that his injuries were such that all or part of the treatment in the hospital emergency room was unnecessary.

A jury certainly may question the necessity of claimed medical expenses. Vinzant v. Hughes, 579 So.2d 681, 683 (Ala.Civ.App.1991). When medical bills are admitted into evidence, the jury is free to conclude that some or all of the bills were unnecessary. Kite v. Word, 639 So.2d 1380 (Ala.Civ.App.1994). We also note this court’s holding in Bennich v. Kroger Co., 686 So.2d 1256 (Ala.Civ.App.1996):

“A jury is not bound to award medical expenses merely because they were incurred. Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990) (jury verdict of $907, when plaintiff proved special damages in excess of $100,000, upheld). The fact that a plaintiffs medical bills are admitted into evidence without objection does not necessarily mean that they are undisputed; it may be that the jury believed the plaintiffs medical expenses were not incurred as a result of the defendant’s negligence.”

Bennich v. Kroger Co., 686 So.2d at 1267.

In Brannon v. Webster, the plaintiff claimed no injuries at the time of the automobile accident that formed the basis of that case, but she subsequently complained of neck pain and sought medical attention. Her physician determined that she suffered from mild cervical strain that would resolve itself given time to heal, and he recommended rest. The plaintiff continued to suffer pain and was referred to other physicians for therapy and for additional diagnostic tests, all of which gave normal results. The bills for the plaintiffs claimed medical expenses and lost wages were admitted into evidence, without objection, as reasonable charges. The jury returned its award in an amount far less than that claimed by the plaintiff, and it did not specify what amount was for special damages and what amount, if any, was for pain and suffering. Although the plaintiff in Brannon contended that her special damages were proven and undisputed, that she had also presented proof of some pain and suffering, and that the defendant had presented no testimony disputing her special damages, this • court found it significant that while the defendant did not offer his own contradictory evidence, his counsel created conflicts and weaknesses in the plaintiffs case through cross-examination of her witnesses. This court concluded that “[cjlearly, here the jury, as trier of facts, apparently did not believe [the plaintiff] proved her claimed damages.” Brannon, 562 So.2d at 1339. We believe this case is similar in some respects to Brannon.

Alternatively, the jury could have reasonably concluded that Watson should be awarded only his emergency room medical expenses, reasoning that his decision to seek an assessment and treatment at an emergency room was a reasonable precautionary measure, but ultimately concluding that Watson suffered no appreciable injury, or at least no appreciable pain and suffering, as a result of the accident. The evidence from which the jury could have concluded that the injuries were slight or that Watson suffered from no appreciable pain or suffering included the fact that the collision was not a severe one, and that Savoy, an 88-year-old woman, was not injured. Further, it was undisputed that Watson suffered from preexisting medical conditions. Moreover, there was sufficient evidence in the record from which the jury could question Watson’s credibility as to the extent of his injuries and/or the extent of his pain and suffering. The jury could have concluded that Watson was less than truthful with respect to his complaints of pain.

As this court explained in Brannon v. Webster, a jury has the “discretion to determine the amount of damages when the extent of the injury is uncertain.” 562 So.2d at 1339. Here, as in Brannon, the record is such that the jury reasonably could conclude that Watson did not prove all of his claimed damages.

“It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge.” Hill v. Sherwood, 488 So.2d 1357, 1359 (Ala.1986). However, it is equally well established that the exercise of that discretion by the trial court may. be disturbed by this court where a legal right is abused and the record plainly and palpably shows the trial judge to be in error in granting the new trial. Id. In this case, the damages award is one that reasonable jurors could have made based on the particular record presented. We conclude that the trial judge plainly and palpably erred in granting Watson’s motion for a new trial.

We have also examined the record in light of the contention by Watson that the jury was tainted by questions asked by Savoy’s counsel during voir dire, and find that contention to be without merit. Among other things, the record on appeal does not contain a transcript of the voir dire proceedings.

Accordingly, the trial court’s order granting a new trial is due to be reversed, and the cause remanded for the entry of a final judgment based upon the jury’s verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, J., concurs in the result.

YATES, P.J., dissents.

      . Larry James was a passenger in Watson's vehicle and was also allegedly injured in the collision. James was a coplaintiff in the action filed against Savoy, but he settled his claim against Savoy before trial. James's claim was dismissed with prejudice.

      . The $637.60 was comprised of three separate charges: a $90 charge from Springhill Diagnostic for the review of X-rays, a $121 charge from the emergency room physician, and a $426.60 charge from Springhill Memorial Hospital. Springhill Memorial Hospital’s charge consisted of a $125.10 emergency room fee, a $134.20 fee for a cervical spine X-ray, and a $167.30 fee for a spine-pelvis X-ray.


author: CRAWLEY, Judge.

text:
    Tamata McGHEE v. Norman McGHEE.
    2001208.
    Court of Civil Appeals of Alabama.
    July 12, 2002.
    Rehearing Denied Sept. 13, 2002.

      Amardo Wesley Pitters, Montgomery, for appellant.
    Joseph W. Warren of Capouano, Smith, Warren & Klinner, P.C., Montgomery, for appellee.
   CRAWLEY, Judge.

Tamata McGhee (the “mother”) and Norman McGhee (the “father”) were divorced in 1994. The divorce judgment provided for joint legal custody of their two minor children, with the mother having sole physical custody. In 2000, the father filed a petition to modify the trial court’s judgment as to custody, asking the-trial court to award him physical custody of the children, who were ages eight and ten at the time of the modification hearing. Following the presentation of ore tenus evidence, the trial court granted the father’s request and awarded him physical custody. The mother appeals, arguing that the trial court’s decision was so unsupported by the evidence as to be plainly and palpably wrong.

We recognize that an appellate court presumes that a trial court’s determination regarding the modification of the custody provision of a divorce judgment is correct because the trial court had the opportunity to hear the evidence and observe the witnesses and, thus, is in the best position to determine the best interests of the minor children. Voloshik v. Voloshik, 505 So.2d 1233 (Ala.Civ.App.1986). We further recognize that the trial court’s judgment based on finding of facts will not be reversed absent a showing that the findings were plainly and palpably wrong. Etheridge v. Etheridge, 712 So.2d 1089 (Ala.Civ.App.1997). The parent who petitions for a modification of a custody order has the burden of proving a material change in circumstances since the last order, proving that a change of custody will materially promote the child’s best interests, and proving that the benefits of changing custody outweigh the disruption of uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala.1984). “The evidence must be so substantial as to show an obvious and overwhelming necessity for a change.” Vick v. Vick, 688 So.2d 852, 855 (Ala.Civ.App.1997); Braswell v. Braswell, 460 So.2d 1339, 1341 (Ala.Civ.App.1984).

The trial court found that the mother did not provide a “sound environment” for the children because the mother had consistently left them in the care of various relatives. The trial court’s judgment states:

“From the totality of the evidence, it is obvious that these girls have been left to look out for themselves. They have been left at various places with a variety of relatives; great-grandmother, grandmother, aunts, cousins. Children of both sexes and various ages and commingled relationships have been left virtually unsupervised to do whatever enters into their minds. This is not a sound environment in which two little girls should be reared.”

The trial court apparently based its judgment on the lack of supervision which, it believed, could possibly lead to incidents of molestation. The father had presented evidence showing that one of the daughters was allegedly sexually assaulted by one of her cousins while under the supervision of a relative. It was undisputed that the mother initiated the prosecution of the cousin and that the cousin was found not guilty in the juvenile court because of insufficient evidence. The mother testified that she no longer allowed the children to be left with the cousin.

It is common in today’s society for a custodial parent to seek out others, including relatives, neighbors, day-care centers, etc., to aid the parent in watching over children. Having relatives watch over children is not a new practice, and in many instances it is the preferred method of nonparent supervision. The father knew for years that the mother left the children with relatives, yet he made no protest to the mother. Despite the father’s testimony that he objected to the mother’s leaving the children with the maternal grandmother, the father admitted that he never told the mother that he objected to her having other relatives watch the children.

We hold that the father did not present sufficient evidence to support a modification of custody based on the mother’s use of family members to help watch over the children. There is some inherent risk in leaving children under the supervision of any caregiver, be it a family member or a licensed day-care facility. A custodial parent should not be penalized because he or she uses appropriate family members to supervise his or her children.

The father also complained of the mother’s delay in having the younger daughter tested for attention deficit disorder (“A.D.D.”). The mother testified that the child’s school had just recently recommended that the child be tested for this disorder. The father presented evidence indicating that the child had been diagnosed with possible A.D.D. before the school recommended that she be tested. He admitted, however, that he knew of the earlier diagnosis and did nothing to have the child tested or to encourage the mother to have her tested. We conclude that the father’s testimony on this issue falls short of meeting his burden under McLendon.

The trial court also based its judgment on the stability of the father compared to the mother. The father had argued that he was more suited to raise the children because he believed he could provide a more stable environment than the' mother could. The stability of the parties, or the lack thereof, is a factor the trial court can consider when determining whether a change of custody is warranted. Robertson v. Robertson, 559 So.2d 64 (Ala.Civ.App.1990); Taft v. Taft, 553 So.2d 1157 (Ala.Civ.App.1989). The father argued that he was better able to provide a stable home life for the children and better supervision in terms of their education. The father, now remarried, has continued to live in the marital residence while the mother has resided in five different locations since the divorce. Although the mother moved several times immediately after the divorce, the evidence showed that she had resided at her present residence for the past three years and that she has been employed at the same place for seven years. We hold that any finding by the trial court based on the fact that the mother moved several times following the divorce was not sufficient to meet the requirements set out in McLendon.

Additionally, the evidence showed that the children were performing their schoolwork adequately. The older daughter was an A/B student, and although the younger daughter did repeat the first grade, she now performs at a B/C level after being diagnosed with a learning disability. The mother presented evidence indicating that students at the children’s current school performed better on standardized tests than students at the school the children would attend if they moved into the father’s school district.

We conclude that the father did not show an obvious and overwhelming necessity for a change of custody. See Vick, 688 So.2d at 855; Braswell, 460 So.2d at 1341. We reverse the judgment of the trial court and remand the case to the trial court with instructions to render a judgment for the mother consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs in the result.

      . The trial judge who presided over the cousin’s juvenile trial also presided over this case.


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte Norman McGHEE. (In re Tamata McGhee v. Norman McGhee).
    1012369.
    Supreme Court of Alabama.
    Jan. 10, 2003.
    Joseph W. Warren of Capouano, Smith, Warren & Klinner, P.C., Montgomery, for petitioner.
   STUART, Justice.

WRIT DENIED. NO OPINION.

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

MOORE, C.J., and SEE, J., dissent.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the denial of the petition for certiorari review in this case. The petitioner Norman McGhee alleges that the Court of Civil Appeals’ opinion reversing the trial court’s order modifying child custody conflicts with this Court’s decisions in Ex parte Jones, 620 So.2d 4 (Ala.1992), and Ex parte P.G.B., 600 So.2d 259 (Ala.1992). McGhee argues that

“the Court of Civil Appeals has substituted its assessment of the evidence and findings of fact for that of the trial eourt[’s] on the issues of whether the father had shown an obvious and overwhelming necessity for a change of custody and whether the father met the burden of proof required by Ex parte McLendon, 455 So.2d 863 (Ala.1984), to support the order modifying custody.”

(McGhee’s petition at 1-2.) I agree.

In this case, Tamata McGhee and Norman McGhee were divorced on September 23, 1994. The divorce judgment provided for joint legal custody of the parties’ two minor children; the mother was given sole physical custody, subject to the father’s right to liberal and reasonable visitation. On December 6, 2000, the father filed a petition to modify custody; in that petition he sought physical custody of the children, who were 8 and 10 years old at the time of the modification hearing. Following a hearing at which ore tenus evidence was presented, the trial court granted the father’s request and awarded him physical custody. The mother appealed. The Court of Civil Appeals reversed, concluding from its review of the evidence that “the father did not show an obvious and overwhelming necessity for a change of custody.” McGhee v. McGhee, 852 So.2d 142, 145 (Ala.Civ.App.2002).

“When reviewing a custody case wherein the evidence was presented ore tenus, an appellate court will not disturb the findings of the trial judge unless they are found to be unsupported by the evidence and therefore plainly wrong.” Ex parte Jones, 620 So.2d at 7. See also Ex parte P.G.B., supra. “It is not enough that the Court of Civil Appeals would or could have reached the opposite conclusion; rather, the Court of Civil Appeals is bound to look at the evidence to determine if the trial judge was plainly and palpably wrong, in light of the standards set forth in Ex parte McLendon, [455 So.2d 863 (Ala.1984)].” Ex parte Jones, 620 So.2d at 7 (emphasis added). The Court of Civil Appeals “recognized” this presumption to which it was bound and then promptly disregarded it.

A review of the evidence is necessary: not to reweigh it, but to demonstrate that the trial court had before it substantial evidence to support its decision to modify custody. The trial court found that the parties’ children “have been left to look out for themselves.” The trial court noted that the children were “left at various places with a variety of relatives. Children of both sexes and various ages and commingled relationships have been left virtually unsupervised to do whatever enters into their minds.” The father also presented evidence indicating that the younger daughter had allegedly been sexually assaulted by a cousin while she was under the supervision of a relative. The mother, to her credit, initiated prosecution of the cousin, who was found not guilty in a juvenile court because the evidence was insufficient.

In addition, the father complained of the mother’s delay in having the younger daughter tested for attention deficit disorder (“ADD”) and presented evidence indicating that the child had been diagnosed with possible ADD before the child’s school recommended that she be tested. The father, who is remarried and continues to live in the marital residence, also argued that he was able to provide a more stable home and to better supervise their education than the mother, who has moved five times since the divorce.

Additionally, the father alleges in his petition for certiorari review that the mother, “[o]n at least one occasion,” left the children home alone when the children were ages two and four. He alleges, moreover, that the mother is “usually not present when the Father returns the children after his visitation,” which, he says, upsets the children and requires him to leave the children at the maternal grandmother’s house. In fact, the father alleges that the children are most frequently left at the home of the maternal grandmother, who is approximately 77 years old, takes medication that causes memory lapses and confusion, and is unable to care for and supervise small children. While in her care, the children have been seen running or riding bicycles in the middle of a busy street.

The father also alleges in his petition that after the alleged sexual abuse of the younger daughter by her cousin, the mother simply telephoned the cousin’s father to report the abuse but took no further action. It was not until another alleged attempt by the same cousin to sexually assault the younger daughter that the mother telephoned the authorities. The father also alleges that “[t]he Mother does not adequately care for the children’s needs.” As examples, he states that the mother does not ensure that one of the daughters has her glasses with her when she visits the father; that the children are not required to brush their teeth or groom their hair; that their undergarments are “always dirty and soiled”; and that one of the children smelled of urine one day in December 2000 when the children attended a function with their aunt. Moreover, the father states in his petition that the mother shows favoritism toward one child; that she uses foul language in front of the children, who have, in turn, the father says, picked up the habit. On one occasion, the father alleges, the mother attempted to run him over with her car while the children were in the car.

In the face of such ore tenus evidence, the trial court granted the modification petition and awarded custody to the father. The Court of Civil Appeals, however, failed to mention much of this evidence and downplayed the evidence it discussed. In so doing, I believe that court reweighed the evidence and reversed the trial court’s order, not because the trial court was plainly and palpably wrong, but because the Court of Civil Appeals thought it “would or could have reached the opposite conclusion.” 620 So.2d at 7. This an appellate court plainly cannot do.

I am heartened by the fact that this Court has chosen merely to deny the writ in this case, which lends no mark of approval to the decision of the Court of Civil Appeals. See Ex parte Cason, 515 So.2d 725, 725 (Ala.1987) (“A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy.”). Nevertheless, because McGhee has alleged a valid ground for conflict under Rule 39(a)(1)(D), Ala. R. Civ. P., and because I believe his petition has a probability of merit, I dissent from the Court’s decision to deny the petition for certiorari review.


author: YATES, Presiding Judge.

text:
    Kenneth BARNGROVER, D.O. v. MEDICAL LICENSURE COMMISSION OF ALABAMA. Medical Licensure Commission of Alabama v. Kenneth Barngrover, D.O.
    2010034.
    Court of Civil Appeals of Alabama.
    July 26, 2002.
    Rehearing Denied Oct. 4, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1020098.

      Mary A. Goldthwaite of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellani/cross-appellee Kenneth Barn-grover, D.O.
    Wayne P. Turner of Turner, Wilson, & Sawyer, Montgomery, for appellee/cross-appellant Medical Licensure Commission of Alabama.
   YATES, Presiding Judge.

The Alabama State Board of Medical Examiners (“the Board”), on September 20, 1998, filed an administrative complaint with the Medical Licensure Commission of Alabama (“the Commission”) against Kenneth Barngrover, D.O., alleging that he had committed the following violations of § 34-24-360, Ala.Code 1975:

“a. Having had a disciplinary action taken by another state against his license to practice medicine or osteopathy, based upon acts similar to acts described in Ala.Code [1975,] § 34-24-360, a violation of Ala.Code [1975,] § 34-24-360(15);
“b. Having engaged in fraud in applying for or procuring a license to practice medicine or osteopathy in the State of Alabama, a violation of [§] 34r-24-360(l);
“c. Having made a fraudulent or untrue statement to the Medical Licensure Commission, a violation of [§] 34-24-360(17).
“3. In support of the allegation of the violation of [§] 34-24-360(15), the [Board] specifically alleges that, on or about July 10, 1997, a final decision was entered by the Georgia Composite State Board of Medical Examiners in the Matter of Kenneth Barngrover, D.O., case number 96-488. Specifically, the Georgia Board found that Dr. Barngrover had supervised a physician assistant outside the permissible scope of state law and the Georgia Board’s regulation, that Dr. Barngrover did not keep contemporaneous medical records on several patients but fabricated records after he was served with a subpoena from the Georgia Board, and that Dr. Barngr-over’s prescribing of controlled substances to multiple patients failed to comply with the minimal standards of acceptable and prevailing medical practice. Dr. Barngrover’s license to practice medicine in Georgia was placed on probation for three years, subject to specified terms and conditions of probation. Additionally, Dr. Barngrover was assessed an administrative fine of Ten Thousand Dollars ($10,000).
“4. In support of the allegations of violations of § 34-24-360(1) and (17), the Board specifically alleges that on October 15, 1996, Dr. Barngrover signed his Alabama license renewal for 1997 certifying that all information on the form was correct. Dr. Barngrover answered ‘no’ to question number 6 on the form, which asks ‘To your knowledge, are you the subject of an investigation by any licensing board/agency as of the date of this application within the last year?’ The Board alleges that Dr. Barngrover had knowledge prior to October 15, 1996, that he was the subject of an investigation by the Georgia Composite State Board of Medical Examiners!;] consequently, Dr. Barngrover answered fraudulently and untruthfully on his Alabama license renewal form for 1997.”

Dr. Barngrover moved to have all proceedings related to the Board’s allegation that he violated § 36-24-360(15) stayed, stating that that action was not final because it was on appeal. Following a hearing, the Commission, on January 24, 2001, entered an order making' the following findings of fact and conclusions of law:

“1. On or about July 10, 1997, a final decision was entered by the Georgia Composite State Board of Medical Examiners in the matter of Kenneth Barngrover, D.O., Case No. 96-488. The Georgia Board found that Dr. Barngrover had supervised a physician assistant outside the permissible scope of state law and the Georgia Board’s regulations, that Dr. Barngrover did not keep contemporaneous medical records on several patients, but, rather, that he had fabricated records after he was served with a subpoena from the Georgia Board, and that Dr. Barngrover’s prescribing of controlled substances to multiple patients failed to comply with the minimum standards of acceptable and prevailing medical practice.
“2. Dr. Barngrover’s license to practice medicine in Georgia was placed on probation for three (3) years, subject to specified terms and conditions of probation. Dr. Barngrover was assessed an administrative fine of Ten Thousand Dollars ($10,000).
“3. Thé action of the Georgia Composite State Board of Medical Examiners has been appealed to the Fulton County Superior Court. No ruling has been made on such appeal.
“4. On October 15, 1996, Dr. Barngr-over signed his Alabama license renewal for 1997 certifying that all information on the form was correct. Dr. Barngr-over answered ‘no’ to question no. 6 on the form which asks ‘To your knowledge, are you the subject of an investigation by any licensing board/agency as of the date of this application within the last year?’
“5. Within one year prior to October 15, 1996, Dr. Barngrover was, in fact, the subject of an investigation by the Georgia Composite State Board of Medical Examiners and Dr. Barngrover had specific knowledge of such investigation. Specifically, on April 18, 1996, Dr. Barngrover was served notice of an administrative action against him and he had direct knowledge that a hearing was scheduled on such administrative complaint on November 18,1996.
“Based upon the foregoing findings of fact, the Medical Licensure Commission makes the following conclusions of law:
“1. Respondent, Kenneth Barngr-over, D.O., has had a disciplinary action taken by another state against his license to practice medicine or osteopathy, based upon acts similar to acts described in Alabama Code [1975,] Section 34-24-360, a violation of Alabama Code [1975,] Section 34-24^-360(15).
“2. Respondent, Kenneth Barngr-over, D.O., has engaged in fraud in applying for and procuring a license to practice medicine or osteopathy in the State of Alabama, a violation of Alabama Code [1975,] Section 34-24-360(1).
“3. Respondent, Kenneth Barngr-over, D.O., has made a fraudulent or untrue statement to the [Commission], a violation of Alabama Code [1975,] Section 34-24-360(17).
“The [Commission] notes that Dr. Barngrover contends that the Order of the Georgia Composite State Board of Medical Examiners is not a final order because it is still on appeal in the State of Georgia. The [Commission] disagrees with such position, but acknowledges that in the event the Appellate Court of the State of Georgia should vacate the decision of the Georgia Board then, in such event, the basis of the [Board’s] allegation that Dr. Barngrover has had a disciplinary action by another state would also be vacated. Therefore, the [Commission] will make no disposition with regard to its finding on such issue, but will retain jurisdiction pending disposition of the Georgia appeal.
“The Commission also notes the Respondent’s argument with regard to the charge that he engaged in fraud in applying for or procuring a license to practice medicine and that he made a fraudulent or untrue statement to the [Commission], He argues that the actual investigation phase of his case in Georgia had concluded more than a year prior to October 15, 1996. The Commission totally rejects such argument. Such a narrow and restricted interpretation defies common sense and is totally contrary to the interpretation which the Commission has always placed upon such question. The clear purpose of question 6 is to determine whether or not any investigation or proceeding, which had not yet resulted in a disciplinary action, had occurred within the past year.
“Based upon the above findings of fact and conclusions of law, the [Commission] makes the following ruling:
“1. The Motion to Stay All Proceedings is denied.
“2. No disciplinary action against the Respondent’s license to practice medicine is administered at this time based upon the finding that he has had a disciplinary action taken in another state against his license to practice medicine or osteopathy. However, the Commission retains jurisdiction to either administer disciplinary action, or to dismiss the portion of the Administrative Complaint making such allegation, based upon the outcome of the Georgia appeal. The parties are directed to notify the [Commission] of any action on the Georgia appeal within two (2) weeks of any such action. “3. Based upon the Commission’s finding that the Respondent engaged in fraud in applying for or procuring a license to practice medicine or osteopathy in the State of Alabama and upon the Commission’s finding that the Respondent made a false or untrue statement to the Commission, it is the ORDER of the [Commission] that the license to practice medicine in Alabama of the Respondent, Kenneth Barngrover, D.O. be REPRIMANDED and that he be assessed an administrative fine in the amount of FIVE HUNDRED DOLLARS ($500.00).”

Dr. Barngrover, on February 23, 2001, filed a notice of appeal with the Commission; he also, on that date, petitioned the Montgomery Circuit Court to set aside the decision of the Commission reprimanding his license and assessing him a fine. Dr. Barngrover amended his petition for judicial review on April 23, 2001.

The trial court, on August 29, 2001, entered an order reversing the Commission’s disciplinary action as it related to the disciplinary action of the Georgia Composite State Board of Medical Examiners, finding that the Commission’s action on that issue was premature. Further, the trial court affirmed the Commission’s disciplinary action as it related to the Commission’s finding that Dr. Barngrover had obtained or had procured his Alabama medical license through fraud, holding that such action by the Commission was supported by substantial evidence. Dr. Barngrover appealed and the Commission cross-appealed.

We initially note that

“our review of the Licensure Commission is mandated by § 41-22-20(k), [Ala. Code 1975]. That section requires that, in examining the order of the agency, that order is presumed to be prima facie just and reasonable. We may not substitute our judgment for that of the agency as to the weight of the evidence or question of fact, nor could the circuit court substitute its judgment for that of the Commission.”

Evers v. Medical Licensure Comm’n, 523 So.2d 414, 415 (Ala.Civ.App.1987). Generally, the “courts will pass only on questions of whether the administrative agency has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary.” State Dep’t of Human Res. v. Funk, 651 So.2d 12, 16 (Ala.Civ.App.1994). “Additionally, this court reviews the trial court’s ruling on the agency’s decision with no presumption of correctness, because the trial court was in no better position to review the order of the agency than this court is.” Id., at 16. The presumption of correctness does not attach to the hearing officer’s conclusions of law; further, no presumption of correctness exists when a hearing officer improperly applied the law to the facts. Id.

Dr. Barngrover specializes in the practice of pain management and anesthesiology. He is licensed in both Alabama and Georgia; however, he has practiced primarily in Columbus, Georgia, since 1985. In 1994, the Georgia Composite State Board of Medical Examiners (the “Georgia Medical Board”) launched an investigation into Dr. Barngrover’s medical practice. In April 1996, the Georgia Medical Board filed an administrative complaint against Dr. Barngrover. On October 15, 1996, Dr. Barngrover completed and signed his Alabama license renewal application for 1997. On that application he answered “no” to question number 6, which asks: “To your knowledge, are you the subject of an investigation by any licensing Board/Agency as of the date of this application within the past year?” A hearing on the Georgia Medical Board’s administrative complaint against Dr. Barngrover was held in November 1996. A final decision “reprimanding” Dr. Barngrover’s license was issued by the Georgia Medical Board on July 10, 1997.

Dr. Barngrover appealed the Georgia Medical Board’s decision to the Fulton County Superior Court. In August 1997, that court issued an order requiring the Georgia Medical Board to amend any public dissemination of information related to its disciplinary action and ruling against Dr. Barngrover to show that the matter was pending on judicial review. In November 1997, Dr. Barngrover completed and signed his Alabama license renewal application for 1998. He placed the Commission on notice of the Georgia disciplinary action against him by answering “yes” to question number 2, which states: “Has your certificate of qualification or license to practice medicine in any state been suspended, revoked, restricted, curtailed, or voluntarily surrendered under threat of suspension or revocation within the past year?”

Dr. Barngrover argues on appeal, as he did before the Commission, that he is not guilty of violating § 34-24-360(1), Ala. Code 1975 (engaging in fraud in applying for or procuring a license to practice medicine), and § 34-24-360(17), Ala.Code 1975 (having made a fraudulent or untrue statement to the Commission) because, he says, question number 6 specifically inquired about investigations and not disciplinary proceedings. He further states that when he answered “no” to question 6, the investigation that he had been subject to had ended in 1994, two years before he completed the license renewal application on October 15,1996.

We note the following important distinction between an “investigation” and a “hearing” or “proceeding”:

“The term ‘hearing’ is appropriate to quasi-judicial proceedings while ‘investigation’ is appropriately used with regard to nonjudicial functions of an administrative agency and the seeking of informa tion for future use rather than proceedings in which action is taken against someone. An ‘investigation’ is nonad-versary and contemplates a procedure much less formal and more flexible than applies even to an administrative hearing.”

Atchison, Topeka & Santa Fe Ry. v. Kansas Comm’n on Civil Rights, 215 Kan. 911, 529 P.2d 666, 673 (1974) (citations omitted) (emphasis added). See also Bowles v. Baer, 142 F.2d 787, 788 (7th Cir.1944) (holding that “[ijnvestigations are informal proceedings held to obtain information to govern future action and are not proceedings in which action is taken against anyone”).

James Patrick, Dr. Barngrover’s attorney during the Georgia disciplinary action, repeatedly testified during the hearing that the Georgia Medical Board’s investigation of Dr. Barngrover ended in 1994. Based on his understanding of the term “investigation” and of the term “hearing” or “proceeding,” Patrick advised Dr. Barngrover to answer “no” to question 6, because, he said, the investigation had ended in 1994, more than one year before Dr. Barngrover completed the license renewal application for 1997. Dr. Barngr-over also testified that it was his belief that he was no longer under investigation after 1994.

However, the Commission presented evidence indicating that the investigation did not end in 1994, but that it was ongoing as late as September 1995, which is just one month beyond the relevant 12 month period immediately preceding October 15, 1996. In July 1995, Patrick and the Georgia Medical Board corresponded by letter regarding a subpoena served by the Georgia Medical Board requesting certain medical records of Dr. Barngrover’s. On September 14, 1995, Patrick further corresponded by letter with the attorney who represented the Georgia Medical Board wishing to discuss the “issues” and noting that Dr. Barngrover had not been advised of the charges against him, the general context of the accusations made against him, nor the identity of the person or person who had made those accusations. Nothing in the record indicates that the Georgia Medical Board had notified Dr. Barngrover that its investigation had ended between September 14, 1995, and the relevant time period beginning on October 15, 1995, much less that the investigation had been completed in 1994 — in fact, formal quasi-judicial proceedings did not commence until April 1996 with the filing of the formal complaint against Dr. Barngr-over. We conclude that substantial evidence exists from which one could infer that the Georgia Medical Board’s investigation of Dr. Barngrover continued until the time a formal complaint was filed against him in April 1996. Accordingly, we cannot say that the trial court erred in affirming the Commission’s decision finding that Dr. Barngrover had violated §§ 34-24-360(1) and 34-24-360(17), Ala. Code 1975.

The Cross-Appeal

The Commission argues in its cross-appeal that the trial court erred in holding that its disciplinary action, brought pursuant to § 34-24-360(15), Ala.Code 1975, and based on the Georgia disciplinary action, is premature because of the pendency of the appeal of the Georgia disciplinary action. We agree. Section 34-24-360, Ala.Code 1975, provides in part:

“The Medical Licensure Commission shall have the power and duty to suspend for a specified time, to be determined in the discretion of the commission, or revoke any license to practice medicine or osteopathy in the State of Alabama whenever the licensee shall be found guilty on the basis of substantial evidence of any of the following acts or offenses:
“(15) Any disciplinary action taken by another state against a licensee to practice medicine or osteopathy, based upon acts by the licensee similar to acts described in this section; a certified copy of the record of the disciplinary action of the state making such an action is conclusive evidence thereof.”

It is undisputed that the Georgia Medical Board imposed discipline upon Dr. Barngr-over’s license in that state and that the disciplinary action was based on acts similar to those acts described § 34-24-360, Ala.Code 1975. The decision imposing discipline upon Dr. Barngrover’s license was appealed and has yet to be decided. However, nothing in § 34-24-360(15) can be construed to require the Commission to await the outcome of the Georgia appeal before instituting disciplinary proceedings against Dr. Barngrover pursuant to § 34-24-360(15). According to the plain language of § 34-24-360(15), all that is required to discipline a physician’s license is a showing by substantial evidence that a disciplinary action has been taken by another state against that physician for acts similar to those described in § 34-24-360.

In the similar case of Evers v. Medical Licensure Commission of Alabama, 421 So.2d 89 (Ala 1982), Evers, a physician, was convicted by a jury for violating sections of the Alabama Uniform Controlled Substances Act. An administrative complaint was filed, seeking to discipline him pursuant to § 34-24-360(4), Ala.Code 1975, which provides that a physician’s license may be suspended or revoked whenever the physician is found guilty on the basis of substantial evidence of “[cjonviction of a felony; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.” The issue before the court was “whether a physician’s license may be suspended or revoked when a judgment of conviction is entered by the trial court, or whether the word ‘conviction’ means conviction followed by affir-mance on appeal.” Evers, 421 So.2d at 90. In holding that the licensure commission need not await the outcome of the appeal from the jury conviction before pursuing disciplinary proceedings against Evers, our supreme court stated:

“Looking at the statute, we find that the use of the phrase ‘Conviction of a felony’ has significance, because it points out the stage in the course of a criminal proceeding when the Medical Licensure Commission can take action. The phrase ‘a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence’ sets out the offer of proof which must submitted in order to establish the grounds for action by the Commission.
“We believe the policy of the statute is plain and the legislature intended the fact of conviction to be enough to cause the Medical Licensure Commission to conduct a hearing on the revocation or suspension of a physician’s license.”

Evers, 421 So.2d at 91. The court further held that a physician’s license shall be automatically reinstated upon a reversal of the conviction upon which the Commission’s disciplinary action was based. Id.

Likewise, we conclude that the phrase “[a]ny disciplinary action taken by another state against a licensee to practice medicine or osteopathy, based upon acts by the licensee similar to acts described in this section,” in § 34-24-360(15), indicates the point in time in which the Commission could initiate disciplinary proceedings against Dr. Barngrover, and the phrase in that Code section “a certified copy of the record of the disciplinary action of the state making such an action is conclusive evidence thereof’ sets out the offer of proof necessary to establish the grounds for action by the Commission.

Therefore, we conclude that the Commission was not required to await the outcome of the appeal from the Georgia disciplinary proceedings before initiating disciplinary proceedings against Dr. Barngrover pursuant to § 34-24-360(15), Ala.Code 1975. Accordingly, that portion of the trial court’s decision finding the disciplinary action of the Commission to be premature is reversed and the case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The Board moved the trial court to dismiss it from the action, and the trial court granted that motion; therefore, the Board is not a party to this appeal.