author: HOUSTON, Justice.

text:
    John LILYA v. The GREATER GULF STATE FAIR, INC.
    1012313.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Scott E. Denson of McCleave & Denson, L.L.C., Mobile; and Robert Hedge and Brian Cigelske of Taylor, Martino & Hedge, P.C., Mobile, for appellant.

      D. Brent Baker and Ross A. Frazer of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellee.
   HOUSTON, Justice.

John Lilya appeals the Mobile Circuit Court’s summary judgment in favor of The Greater Gulf State Fair, Inc. (“Gulf State Fair”), on Lilya’s tort and contract claims stemming from his fall off of a mechanical bull operated by a lessee on the premises of Gulf State Fair. We affirm.

“When reviewing a ruling on a motion for a summary judgment, this Court applies the same standard that the trial court used ‘in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the non-movant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992).”

City of Orange Beach v. Duggan, 788 So.2d 146, 149 (Ala.2000).

Viewed in the light most favorable to Lilya, the relevant facts of this case, most of which are undisputed, are as follows. While attending a fair on premises owned by Gulf State Fair in Mobile County, John Lilya came upon a mechanical bull ride owned and operated by Tracy Torres, who was doing business as “Rolling Thunder & Company.” As Lilya approached the ride, which was enclosed in a small corral fence and was surrounded by a crowd of people, he could see a person riding the mechanical bull. Above the mechanical bull was a large banner that read “Rolling Thunder.” As a friend of Lilya’s walked up to a table located on one side of the corral area to pay for a ride on the mechanical bull, Lilya noticed that the rider who had been on the mechanical bull had fallen off. After Lil-ya’s friend paid for his ride on the bull and walked into the corral, Lilya decided that he would also try to ride the mechanical bull.

After Lilya approached the table and paid the $5 admission fee to Torres, who was operating the mechanical bull, Lilya noticed that his friend had fallen off the bull. Torres told Lilya that Lilya had to sign a document before he would be allowed to ride the mechanical bull. That document provided, in pertinent part:

“PARTICIPANT AGREEMENT, RELEASE, AND ACKNOWLEDGMENT OF RISK
“In consideration of the services of Rolling Thunder & Company, their agents, owners, officers, volunteers, participants, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as ‘RT & C’), I hereby agree to release, indemnify, and discharge RT & C, on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estate as follows:
“1. I acknowledge that riding a mechanical bull entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.
“The risks include, among other things: falling off or being thrown from the bull which could result in musculoskeletal injuries including head, neck, and back injuries.
“Furthermore, RT & C employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant’s fitness or abilities. They may give inadequate warnings or instructions, and the equipment being used might malfunction.
“2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.
“3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless RT & C from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of RT & C’s equipment or facilities, including any such claims which allege negligent acts or omissions ofRT & C.
“4. Should RT & C, or anyone acting on [its] behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.
“5. I certify that I have adequate insurance to cover any injury or damage I may cause or suffer while participating, or else I agree to bear the costs of such injury or damage myself. I further certify that I have no medical or physical conditions which could interfere with my safety in this activity, or else I am willing to assume— and bear the costs of — all risks that may be created, directly or indirectly, by any such condition.
“6. In the event that I file a lawsuit against RT & C, I agree to do so solely in the state of Texas, and I further agree that the substantive law of that state shall apply in that action without regard to the conflict of law rules of that state. I agree that if any portion of this agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect.
“By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against RT & C on the basis of any claim from which I have released them herein.
“I have had sufficient opportunity to read this entire document. I have read and understood it, and I agree to be bound by its terms.
“Signature of Participant: /s/John Lilya
Print Name: John Lilya
“Address: Mobile, AL
“Phone:_ Date:_”

(Emphasis in original.)

After signing the document, Lilya stepped into the corral area, the floor of which was covered with a mat approximately 12 to 18 inches thick, which Lilya described as “soft and forgiving.” Lilya’s impression of the mat was that if he fell from the bull the mat would protect him from injury.

With Torres’s help, Lilya got up on the mechanical bull and began to ride. However, after just a few seconds, and while the bull was still moving slowly, Lilya fell off. Torres then instructed Lilya on how to ride the bull and helped Lilya back onto the bull. The bull ride began again, and it became progressively faster, spinning and bucking to the left and to the right, until Lilya again fell off of the bull. Lilya claims that it was this second fall that caused his injury; he landed on his head and shoulders and suffered a fractured neck.

Lilya brought this action against, among others, Gulf State Fair, asserting 1) that Gulf State Fair negligently and/or wantonly operated its place of entertainment in that it breached its duty to keep and maintain the fairgrounds in a reasonably safe condition, and 2) that Gulf State Fair breached an implied-in-fact contract with Lilya to provide reasonably safe exhibits for Lilya’s entertainment. Gulf State Fair filed a motion for a summary judgment, which the trial court granted. Following certification of the summary judgment as a final judgment under Ala. R. Civ. P. 54(b), Lilya filed this appeal.

I. Negligence/Wantonness

The parties dispute the nature of the claim involved and, accordingly, whether the duty owed to Lilya by Gulf State Fair should be extracted from general principles of negligence or of premises liability. The key to this question is whether the injury was caused by some affirmative conduct of the landowner or by a condition of the premises. Baldwin v. Gartman, 604 So.2d 347 (Ala.1992).

In Baldwin, we held that an injury to a landowner’s friend, Baldwin, caused by a concrete slab that fell on Baldwin’s leg after it was left upright on a dolly by the landowner, Gartman, was caused by a condition of the premises and was to be evaluated under premises-liability principles:

“Baldwin argues that Gartman’s duty toward Baldwin is governed not by the standards of premises liability, but rather by traditional negligence standards. This Court recognized in Orr v. Turney, 585 So.2d 150 (Ala.1988), that negligence principles are applicable when the landowner’s active conduct, rather than the condition of the land, causes the injury:
“ ‘Historically, landowners have enjoyed isolation from traditional negligence standards relative to their ownership or possession of land. Instead, graduated classes, each to whom a separate duty was owed, based upon their relationship to the landowner, became determinative of the landowner’s liability-
“ ‘This special classification privilege is not generally regarded as applicable, however, when it is the affirmative conduct of the landowner, rather than the condition of his premises, that causes the injury. In this context, the justifications for determining liability based upon the classification of the injured party ... do not attach. Where the injury is caused by some distinct act of the landowner, rather than by the mere condition of the premises, a different standard for determining liability may arise.
“ ‘... We reaffirm today the rule set out in W.S. Fowler Rental Equip. Co. v. Skipper, [276 Ala. 593, 165 So.2d 375 (1963)]. A landowner, if he undertakes any affirmative conduct creating a danger to an unwitting licensee, independent and distinct from the condition of the premises, must give reasonable notice or warning of the danger or exercise reasonable or ordinary care to safeguard against the danger.’
“535 So.2d at 151-54. In Orr the landowner injured a licensee when, while running with a pan of burning grease, she spilled some on the licensee. That conduct had nothing to do with the condition of the premises. Rather, the injury came from an affirmative act.
“The dangerous condition caused by the precarious position of the slab on the dolly is not ‘independent and distinct from the condition of the premises.’ Gartman left the slab unattended, it was bumped by his son Steven, and it fell on Baldwin. The balanced slab was a condition of the premises, no matter how briefly it was balanced. Baldwin contends that Gartman’s negligent affirmative conduct, qualifying for the Orr exception to premises liability standards, was in leaving the balanced slab on the dolly unattended. In Orr the defendant’s conduct was the immediate cause of the injury. Gartman’s leaving the slab unattended did not, in and of itself, cause the injury; rather, it produced a dangerous condition. Had Gartman, rather than his son, bumped the slab and caused it to fall, his conduct, distinct from his status as landowner, could then be said to have caused the injury and could be evaluated by an ordinary negligence standard.”

Baldwin, 604 So.2d at 348-49 (footnote omitted).

Just as it was the “dangerous condition” created by the unbalanced slab and not Gartman’s act of leaving the slab unattended that caused the injury in Baldwin, it is clear here that, if anything, it was the allegedly dangerous condition created by the inherent risks of the mechanical bull ride itself — not Gulf State Fair’s conduct in allowing Torres to lease space and to operate the mechanical bull ride — that directly caused Lilya’s injury. Therefore, any tort claim Lilya would maintain against Gulf State Fair would be governed by premises-liability principles and would be evaluated in light of the duty owed by a landowner to an invitee.

As the landowner, Gulf State Fair would owe Lilya, its invitee, the duty to use reasonable care described in Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978):

“[T]he duty owed to [an invitee] by the [premises owner] is the exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition. Winn-Dixie v. Godwin, 349 So.2d 37 (Ala.1977); May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967). The owner of a premises in such cases is not an insurer of the safety of his invitees, and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586 (1971); cert. denied 287 Ala. 729, 255 So.2d 592 (1971); Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958). Furthermore, the owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of or should be aware of in the exercise of reasonable care. Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972); Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966).”

If there is a dangerous condition on the premises that is not “open and obvious,” the premises owner has a duty “to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.” Armstrong v. Georgia Marble Co., 575 So.2d 1051, 1053 (Ala.1991).

Here, the only evidence of danger stemming from the mechanical bull ride is the most open and obvious characteristic of the ride: the possibility of falling off the mechanical bull. Lilya was aware that the two riders who had ridden the mechanical bull immediately before he rode it had fallen off. He noticed the thick floor mat, and he knew that the mat was there to protect riders when they fell. Also, he signed a release that explicitly stated, among other things, 1) that riding the mechanical bull involved inherent risks, 2) that injury was a possibility, 3) that the risks included “falling off or being thrown from the bull which could result in muscu-loskeletal injuries including head, neck, and back injuries,” and 4) that Lilya understood the risks and rode voluntarily.

Additionally, the very name of the ride — “Rolling Thunder” — hanging on a banner above the ride, gives a somewhat graphic indication of what is the very nature of bull riding: an extremely turbulent ride the challenge of which is to hang on and not fall off. The entertainment value — and, indeed, the concept — of bull riding becomes meaningless without the inherent possibility of falling off, an observation that parallels one Chief Justice Cardozo found compelling in Murphy v. Steeplechase Amusement Go., 250 N.Y. 479, 480-83, 166 N.E. 173, 173-74 (1929), a similar case involving an injury to a rider on an attraction at an amusement park at Coney Island in New York:

“One of the supposed attractions is known as ‘The Flopper.’ It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.
“Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly moving escalator that is common [in] shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, ‘the Flopper,’ was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiffs wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. ‘I took a chance,’ she said when asked whether she thought that a fall might be expected.
“Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.”

(Citations omitted.)

We hold that the possibility of falling off the mechanical bull and, accordingly, the possibility of being injured as a result of falling off the mechanical bull were open and obvious dangers. Therefore, Gulf State Fair owed no duty to warn Lilya of the possible harm involved in riding the mechanical bull. Without the existence of a duty, Lilya’s negligence and wantonness claims fail as a matter of law, and the trial court’s summary judgment as to those claims was appropriate. Flagstar Enters., Inc. v. Davis, 709 So.2d 1132, 1139 (Ala.1997) (noting that one of the “essential elements to a right of recovery for negligence [is a] a duty owing from the defendant to the plaintiff’); Hobart Corp. v. Scoggins, 776 So.2d 56, 58 (Ala.2000) (‘Wantonness involves the ‘conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.’ ”) (quoting Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998)) (emphasis omitted).

II. Implied Contract

Lilya also alleges that Gulf State Fair violated a duty it owed Lilya under an implied-in-fact contract. When a person purchases admission to a place of amusement, such as the fair that Lilya attended, an implied contract is created pursuant to which the seller “undertakes that the premises are reasonably safe for the purpose intended, and for which they are accordingly used by his patrons.” Birmingham Amusement Co. v. Norris, 216 Ala. 138, 141, 112 So. 633, 635 (1927); see also Sims v. Etowah County Bd. of Educ., 337 So.2d 1310, 1314 (Ala.1976) (stating that “a ticket to a place of public entertainment constitutes a contract between the proprietor and the purchaser of the ticket; whatever contractual duties grow out of that relation, it has been held, must be performed by the proprietor or he must respond in damages for breach of contract”).

“This does not mean that the proprietor is an insurer against accidents to patrons resulting from their own missteps or disabilities, and not primarily from the unsafe condition of the premises or their appurtenances, nor against injuries resulting from invisible defects therein, not open to observation, nor discoverable by ordinary inspection. This is the sound doctrine declared in Scott v. Univ. of Mich. Athletic Ass’n, 152 Mich. 684, 116 N.W. 624, 17 L.R.A.(N.S.) 234, 125 Am. St. Rep. 423, 15 Ann. Cas. 515 [(1908)].... But, where the causating defect was open to observation, or discoverable by ordinary inspection, liability for the injury attaches as a matter of law. It is not sufficient in such cases to say that the proprietor must make reasonable inspections, or exercise due care to discover, since his duty is to discover and to know.”

Norris, 216 Ala. at 141, 112 So. at 635.

Here, there simply is no substantial evidence of a “causating defect.” Lilya appears to be contending that a mechanical bull is unreasonably dangerous as a matter of law, a contention with which we cannot agree. There is no evidence indicating that the mechanical bull did not work exactly as it was supposed to work; therefore, there was no “defect” that Gulf State Fair should have discovered through inspection. In the words of Norris, there is no substantial evidence indicating that the mechanical bull ride was not “reasonably safe for the -purpose intended.” Therefore, because Lilya can show no breach of the implied contract between him and Gulf State Fair, the summary judgment in favor of Gulf State Fair on Lilya’s contract claim was appropriate, and we affirm that judgment.

AFFIRMED.

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

WOODALL, J., concurs in the result.

      . Lilya contends that the duly owed by Gulf State Fair in this case is governed by Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633 (1927). However, as discussed below, the Norris duty rule is applicable to claims under an implied-contract theory of recovery based on a person’s purchase of a ticket to obtain entry into a place of amusement. See Sims v. Etowah County Bd. of Educ., 337 So.2d 1310, 1314 (Ala.1976) (citing Norris).

      2. The maxim “volenti non fit injuria” means that "a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.” Black’s Law Dictionary 1569 (7th ed.1999).


source: Caselaw Access Project

author: MADDOX, Retired Justice.

license: Public Domain

text:
    Ronnie Earl CATON v. CITY OF THORSBY et al.
    1020216.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Marion F. Walker of Berkowitz, Lefko-vits, Isom & Kushner, P.C., Birmingham, for appellant.
    Timothy P. Donahue of Donahue & Associates, L.L.C., Birmingham, for appel-lees.
   MADDOX, Retired Justice.

The question presented in this zoning case is whether the plaintiff, Ronnie Earl Catón, has standing to bring an action against the City of Thorsby and the City’s zoning commission challenging an alleged zoning decision affecting property he owned when he made a rezoning request but had sold before the formal meeting of the zoning commission at which his request was to be considered.

The circuit court granted the motion for a summary judgment filed by the City and the City of Thorsby Zoning Commission (“the zoning commission”) on the grounds that Catón was not the real party in interest and that he lacked standing, because he never received a formal adverse ruling from the zoning commission. We agree, and we affirm the summary judgment.

Facts

Ronnie Earl Catón owned two adjacent lots of real property on Rebel Street in Thorsby, Alabama. He acquired the first lot in 1988, and for several years, Catón operated a T-shirt and sweatshirt screen-printing business from the house and lot at 12 Rebel Street. In 1992, Catón acquired the house and lot next door, 10 Rebel Street, and he and his mother used that house as a residence. Before Catón purchased the property at 10 Rebel Street, the house located on that lot had been used as an insurance office. He continued, for a time, to operate his business in the house located at 12 Rebel Street. Catón subsequently ceased his business operations in the house located at 12 Rebel Street, and during his mother’s illness, Catón rented the house for residential use.

In December 1997, Catón attended a meeting in connection with a proposed zoning ordinance for the City of Thorsby. The proposed ordinance was the City’s first attempt at zoning property; it classified Caton’s property as residential. Ca-tón testified at trial that at that meeting he spoke to a member of the zoning commission and to a consultant from Birmingham who was helping the City of Thorsby draft the zoning ordinance. According to Catón, he told both individuals that although he was using both lots as residential property, he wanted both lots zoned for commercial use. Catón testified that he was told to leave both lots as they were in the proposed ordinance (zoned residential) for the time being. Catón testified further that he was told that when he was ready to have the properties zoned for commercial use, just to come by and let “them” know.

Catón stated that he listed both properties for sale in April 1999 and that a Mr. Lloyd Geeslin offered $75,000 for both lots, but backed out of the sale because, according to Catón, Geeslin was told by Zane Martin, the mayor of the City of Thorsby, that the properties were zoned for residential use and would not be rezoned for commercial use. The facts tend to show that Catón then telephoned the mayor, who, according to Catón, told Catón to submit a written request to rezone the property. Catón subsequently delivered a letter to Martin on September 20, 1999, requesting that both lots be rezoned for commercial use. Catón testified that Martin then telephoned him and told him that the zoning commission was meeting on “that Thursday night.” He testified, however, that the zoning commission did not meet. Catón stated that Martin then told him to talk to Kay Shropshire, the chairperson of the zoning commission, and the day after the scheduled meeting of the zoning commission, Catón went to Shropshire’s house. According to Catón, Shropshire stated that she had telephoned the members of the zoning commission and that they had decided not to rezone the properties.

Catón attended a subsequent meeting of the zoning commission and voiced his displeasure over the fact that he had been told that a decision not to rezone his properties had been made before the zoning commission held its meeting. On October 7,1999, Catón sold the two properties for a total of $15,000.

On November 8, 2000, Catón sued the City and the zoning commission. In count one of the complaint, Catón alleged that the City and the zoning commission had refused to rezone his property and that their refusal “deprived him of due process of law under the Constitution and laws for the State of Alabama for which he is due to be fully compensated in damages.”

On December 21, 2001, the City and the zoning commission filed a motion for a summary judgment, contending that Catón never filed a formal rezoning request and that the “[z]oning [commission] never made an official determination regarding [Caton’s] desire to have his land rezoned.” In his brief in opposition to the motion for a summary judgment, Catón argued that “[h]e did make a request for a zoning change, and the [z]oning [commission] Members voted on the telephone not to allow it; [that] he was denied any public hearing, and [that] the Town Council never entertained his request at all.”

On April 5, 2002, the trial court entered a summary judgment. In its summary-judgment order, the trial court stated:

“The Alabama Code provides a statutory right to a ‘party aggrieved’ to appeal an adverse decision of a board of zoning adjustment. Ala.Code [1975,] § 11-52-81. The Court of Civil Appeals has also recognized that in order to have standing to appeal a decision of a board of adjustment the party must be ‘aggrieved’ or have suffered some detriment. Crowder v. Zoning Board of Adjustment, 406 So.2d 917 (Ala.Civ.App.1981). In Board of Adjustment v. Matranga, Hess & Sullivan, [51 Ala.App. 154, 283 So.2d 607 (1973)], the Alabama Court of Civil Appeals held that an applicant for a zoning variance must prove that they have legal or equitable ownership of the property in order to maintain an action before the circuit court or board of adjustment. Hudson v. Mobile County, 439 So.2d 1304, 1306 ([Ala.Civ. App.] 1983)(citing 51 Ala.App. 154, 283 So.2d 607 (1973)). In Matranga, the application was made by the holder of an option to purchase the property, which the court found insufficient. Id.
“The statute and cases supra address standing to appeal from boards of adjustment, which is a somewhat different situation from this case where the appeal is based on the decision, or lack thereof, of a [zoning] commission. Despite the differences in the roles of the two entities, both require that the person making the request have a recognized interest in the property they seek to have rezoned. There is no dispute that Mr. Catón owned the properties at 10 and 12 Rebel Street when he made his request to the [zoning] [c]ommission by letter on September 29, 1999. His ownership of those properties gave him the requisite property interest to make his request for rezoning.
“However, when Catón sold those properties, approximately two weeks later, and before a public hearing could be set, he could no longer make the rezoning request because they were no longer his properties. The delay between the first meeting, where Catón addressed the [zoning] [Commission, and the scheduling of the next meeting for a vote on the request, was the result of the [zoning] [Commission’s complying with the notice requirement of § 11-52-77 of the Alabama Code 1975. That provision requires notice in a newspaper of general circulation for at least 15 days before the passage of a new ordinance. Id. A request for rezoning, unlike a variance, requires the city or town to adopt a new ordinance[;] thus the notice requirement referenced supra.
“In this case, the undisputed facts show that the plaintiff, Catón, sold the property before the [zoning] [Commission could schedule a public meeting or reach a decision on his request. The result being there was no decision from which he could appeal. Furthermore, when he filed the instant action, he no longer owned the property involved in this case. Thus, Catón never suffered an adverse decision by the [zoning] [Commission or the City Council and, after selling the property, he no longer had an interest in the property. Rule 17(a) of the Alabama Rules of Civil Procedure sets out the general and longstanding rule that ‘[e]very action shall be prosecuted in the name of the real party in interest.’ (2001). Based on the foregoing, the plaintiff, Catón, is not the real party in interest because [he] never received a formal adverse ruling from the Thorsby [Zoning] Commission. Therefore, he is not the real party in interest and lacks standing to bring this claim. Because the court reached its decision in this case based on the plaintiffs lack of standing the court finds it unnecessary to rule on his other claims.
“The problems that can result from conducting an ‘informal poll’ on an issue such as this one are evident from the record. Although having an ‘informal poll’ is unwise and problematic, the court does not feel that the ‘poll’ in this case was an official vote on the request based on the way the members treated the ‘poll.’ When the [zoning] Commission realized their error, they followed proper procedure and were in the process of having a hearing and vote on Caton’s request when he sold his property. Catón was understandably angry about the situation, but he should have waited until the board reached an official decision before he sold his property.
“It is therefore, ordered, [adjudged, and decreed by this court that, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, the Motion for Summary Judgment is granted in favor of the Defendant, City of Thorsby, on all counts of the Plaintiffs complaint.”

Standard of Review

This Court’s standard for reviewing a summary judgment has been stated many times. Recently, in Potter v. First Real Estate Co., 844 So.2d 540 (Ala.2002), this Court stated:

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [(Ala.2001)](citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

844 So.2d at 545.

Discussion

Catón contends that he is indeed an “aggrieved party” under the provisions of § 11-52-80, Ala.Code 1975. To support his argument, Catón cites H.H.B., L.L.C. v. D & F, L.L.C., 843 So.2d 116 (Ala.2002), in which this Court held that a neighboring property owner had standing to intervene as an aggrieved party in an action appealing the denial of a requested zoning change. In H.H.B, L.L.C., this Court stated:

“Although there is no express statutory authority that allows H.H.B. to intervene to object to a rezoning, H.HJB.’s concerns are analogous to a third-party’s right to intervene as an ‘aggrieved party’ pursuant to § 11-52-80, Ala.Code 1975, in an appeal from a zoning board of adjustment’s decision to grant a variance in zoning regulations. This Court discussed the issue of an aggrieved party’s standing in Ex parte Steadham, 629 So.2d 647 (Ala.1993):
“ ‘ “In order for a party to have standing to challenge the decision of a zoning board of adjustment he must be a ‘party aggrieved.’ To establish himself as a ‘party aggrieved’ he must present ‘proof of the adverse effect the changed status of the rezoned property has, or could have, on the use, enjoyment and value’ of his own property.” ’
629 So.2d at 648 (quoting Crowder v. Zoning Bd. of Adjustment, 406 So.2d 917, 918 (Ala.Civ.App.1981), quoting in part Cox v. Poer, 45 Ala.App. 295, 297, 229 So.2d 797, 799 (1969)). After reviewing Jones’s testimony in light of the above principles, we conclude that H.H.B. presented enough evidence to show that rezoning the subject property to B-2 could have an adverse effect on H.ELB.’s property. Therefore, H.H.B. had standing to intervene in this case and has standing to appeal the circuit court’s judgment.”

843 So.2d at 119.

Catón argues that he has shown that the “refusal to follow any procedural due process and allow him a hearing before a decision was made ... caused his property to drop in value by a minimum of $60,000.” Catón further states:

“The [zoning] Commission never recorded a vote on the property. The ‘hearing’ they had was to hear what Mr. Catón said, not to consider the merits of the zoning on the property.”

(Caton’s brief, p. 22.)

The City of Thorsby argues that “the undisputed facts show that the plaintiff, Catón, sold the property before the [zoning] Commission could schedule a public meeting or reach a decision on his request. The result is that there was no decision from which Catón can appeal.... Thus, Catón never suffered an adverse decision by the [zoning] Commission or the City Council....” (City’s brief, p. 9.)

The record shows that Catón was attempting to amend the zoning ordinance, which was passed pursuant to the provisions of § 11-52-77, Ala.Code 1975. Section 11-52-78, Ala.Code 1975, states the procedure to amend such an ordinance:

“Such ... ordinances passed under the authority of this article may from time to time be amended, supplemented, changed, modified or repealed.
“The provisions of Section 11-52-77 relative to public hearings and official notices shall apply to all changes and amendments.”

Section 11-52-77, Ala.Code 1975, states that no ordinance shall be passed by a municipal corporation until the municipal corporation has complied with one of the two following procedures:

“(1) Prior to adoption, the proposed ordinance shall be published in full for one insertion and an additional insertion of a synopsis of the proposed ordinance, one week after the first insertion ...; both such insertions shall be at least 15 days in advance of its passage and in a newspaper of general circulation....
“(2) Prior to adoption, notice that an ordinance will be considered shall be published for three consecutive weeks in a newspaper of general circulation in the county....”

We believe that the facts in this case are analagous to the facts in Ex parte Bedingfield, 782 So.2d 290 (Ala.2000). In Beding-field, property that was, through an “honest or clerical error,” mistakenly classified as residential rather than business could not be rezoned without strict compliance with the notice provisions of § 11-52-77 and -78, Ala.Code 1975. In Bedingfield, this Court stated:

“In their petition for a writ of certio-rari, the Bedingfield group contends that the reclassification of Yarbrough’s property amended the zoning ordinance and that §§ 11-52-77 and 11-52-78 require notice of an amendment to a zoning ordinance before the amendment can be enacted. Kennon & Assocs., Inc. v. Gentry, 492 So.2d 312 (Ala.1986). In Kennon, this Court held:
“ ‘[T]he statutory 15-day notice requirements contained in § 11-52-74 and § 11-52-77 are mandatory and “must both be complied with when a city publishes notice of a proposed zoning ordinance or amendment.” ’
492 So.2d at 315 (quoting Builders Dev. Co. v. City of Opelika, 360 So.2d 962, 964 (Ala.1978)). This Court further stated:
“ ‘[W]here there had been a failure to strictly follow the procedural requirements applicable to the action sought, especially notice provisions, this Court has invalidated the ordinance passed or the action taken, irrespective of whether any person was prejudiced by the error or omission. See [1 Anderson, American Law of Zoning, § 405 (2d ed.1976)], and cases cited at n. 37, p. 189. Thus, not only has the City of Phenix City in this case adopted regulations which by their express terms make specific notice requirements mandatory, but also there is ample authority for the view that, in adopting or amending a zoning ordinance, mandated procedural steps, especially notice requirements, must be strictly followed. We adhere to this view in the present case.’
492 So.2d at 318-
“Section 11-52-78 governs the amendment, the change, or the repeal of zoning ordinances:
“ ‘Such regulations, restrictions and boundaries and ordinances passed under the authority of this article may from time to time be amended, supplemented, changed, modified or repealed.
‘The provisions of Section 11-52-77 relative to public hearings and official notices shall apply equally to all changes and amendments.’ (Emphasis added [in Bedingfield ].)
“The opinion of the Court of Civil Appeals permitting ‘substantial compliance’ with §§ 11-52-77 and 11-52-78 directly conflicts with Kennon, supra, and its progeny. This Court has required strict compliance with the notice and hearing requirements of § 11-52-77 and that strict compliance requirement extends to § 11-52-78. Kennon, supra, and its progeny. Section 11-52-78 requires the Town Council to comply with the notice and hearing requirements of § 11-52-77 before the Town Council may amend, change, supplement, modify, or repeal the zoning ordinance. Although the error in the proposed zoning ordinance which classified Yarbrough’s property as ‘residential’ rather than ‘business’ was, without dispute, an honest or clerical error, correcting the error required a change to the proposed ordinance. The Town Council changed the classification of Yarbrough’s property from ‘residential’ to ‘business’ and then adopted the ordinance without its having been posted in its changed form with notice that it would be considered in that form as required by § 11-52-77. Thus, because the Town Council did not comply with the notice and hearing requirements of § 11-52-77 before it purported to adopt the ordinance with the changed classification of Yarbrough’s property from ‘residential’ to ‘business,’ the zoning ordinance is invalid for lack of the notice required by § 11-52-77 for the ordinance (in the form purportedly adopted) or for lack of the notice required by § 11-52-78 for the change itself. Kennon, supra. Therefore, the trial court erred in entering summary judgment in favor of the defendants, and the Court of Civil Appeals erred in affirming the judgment of the trial court. Accordingly, we reverse the judgment of the Court of Civil Appeals, and we remand this cause for further proceedings consistent with this opinion.”

782 So.2d at 292-94.

Catón argues that the acts of the City— the telephone poll of certain members of the zoning commission coupled with Shropshire’s statement that the zoning commission had decided not to rezone the property — constituted a formal refusal by the City of his request. We cannot agree. The procedural requirements of §§ 11-52-77 and 11-52-78, Ala.Code 1975, are mandatory, and Catón has failed to show us that the procedural requirements of the law were followed. Although the trial court found that the actions of Mayor Martin and Shropshire were “unwise and problematic,” it nevertheless found that the procedural requirements of law were not followed and it denied Catón the relief that he sought. We affirm its judgment.

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.

MOORE, C.J., and BROWN, HARWOOD, and STUART, JJ., concur.

SEE, J., concurs in the result.

      . The record shows that the parties and the trial court refer to the "zoning commission” by various names, including: the City of Thorsby Zoning and Planning Board, the planning and zoning commission, the planning commission, the zoning and planning commission, the Thorsby Planning Commission, and the zoning board.

      . The record shows that Catón also acquired a third parcel that adjoined both lots. The third parcel was a small "pie-shaped” parcel.

      . Catón testified that he had paid $41.000 for his interest in the two parcels.

      . In count two Catón alleged that the "1997 [z]oning [p]lan of the City of Thorsby, which designated Mr. Caton’s property as residential, constituted an unlawful taking under the Constitution and laws of the State of Alabama and the Constitution of the United States, Amendment V” and that this "unlawful taking" "constituted a violation of due process under 42 U.S.C. § 1983 and the Fifth Amendment to the United States Constitution.”


author: SEE, Justice. MOORE, Chief Justice JOHNSTONE, Justice

text:
    JOHNSON MOBILE HOMES OF ALABAMA, INC., and Johnson Homes of Meridian, Inc. v. Michael HATHCOCK and Patsy Hathcock.
    1992310.
    Supreme Court of Alabama.
    Feb. 21, 2003.

      Harry M. Renfroe, Jr., Tuscaloosa, for appellants.
    Robert D. Selwyn of Wilson & Selwyn, L.L.C., Tuscaloosa, for appellees.
   SEE, Justice.

Johnson Mobile Homes of Alabama, Inc., and Johnson Homes of Meridian, Inc. (hereinafter collectively referred to as “JMH”), defendants in an action pending in the Tuscaloosa Circuit Court, appeal from that court’s order denying their motion to compel arbitration. JMH argues that the legality of the contract underlying its arbitration agreement with Michael Hathcock is an issue for an arbitrator, rather than the trial court, to decide. JMH also argues that Michael Hathcock’s wife Patsy should be compelled to arbitrate her claims, even though she did not sign an arbitration agreement.

On July 23, 1997, Michael Hathcock purchased a mobile home from JMH. In connection with this purchase, Michael Hath-cock signed a contract for the sale of the mobile home (“the sale contract”), a freestanding arbitration agreement, and an “Installment Note, Security Agreement, and Disclosure Statement.” The freestanding arbitration agreement provided, in part, as follows:

“The seller and buyer(s) agree that this transaction involves interstate commerce. The seller and the buyer(s) also agree that in the event of any controversy, dispute, and/or difference of opinion arising out of or related in any manner to their contract, or arising out of or related in any manner to any negotiations and/or representations made in connection with the sale of the mobile home or the execution of the contract, then such controversy and/or dispute shall be resolved through binding arbitration, in accordance with the rules of the American Arbitration Association. “The buyer(s) agree that the scope of the disputes, controversies, and/or differences of opinion to which this arbitration agreement applies shall include, but not be limited to, the following: [t]he terms of the contract; its breadth and scope; all documents concerning any goods and/or services acquired by the buyer(s); the condition of the mobile home; the conformity of the mobile home sold to the contract; the representations, promises, undertakings, and/or covenants made by the seller and/or any of its agents, servants, and/or employees in connection with the sale of the mobile home and/or otherwise dealing with the mobile home; the terms of financing of the transaction; any terms and/or provisions of any credit life and/or disability insurance purchased at or about the time of the transaction; and any terms, coverages, and/or provisions of any property insurance and/or other types of insurance purchased at or about the time of the transaction.”

The “Installment Note, Security Agreement, and Disclosure Statement” contained the following arbitration provision:

“27. Arbitration Agreement and Jury Trial Waiver. Any controversy or claim arising out of or in any way related to this Note, or any default hereunder, or the purchase, sale, delivery, set-up, quality, or financing of the Manufactured Home or any related furniture, appliance, or other property, product or service, whether based on contract, an alleged tort, or other legal theory, shall be resolved by binding arbitration administered by the American Arbitration Association (‘AAA’) under its Commercial Financial Disputes Arbitration Rules.... Any question whether a particular controversy or claim is subject to arbitration shall be decided by the Arbitrator.”

The Hathcocks lived in the mobile home until October 27, 1997, when a fire destroyed the home and the Hathcocks’ personal possessions inside the home. The Hathcocks recovered $84,784.12 from their insurance company to compensate them for their loss.

On July 30, 1999, the Hathcocks sued JMH, alleging (1) that JMH had represented to them that the mobile home they had purchased was new, when, in fact, it was not and (2) that an improperly installed and/or manufactured electrical box caused the fire in their home. On September 3, 1999, JMH moved to dismiss, or, alternatively, to compel arbitration. The trial court issued an order denying the motion on August 3, 2000, finding “that the underlying [sale] contract was void ab ini-tio in that it violated the Alabama Deceptive Trade Practices Act.” In addition, it found that Patsy Hathcock was not a signatory to the contract and, therefore, was not subject to the arbitration agreement signed by Michael Hathcock.

JMH filed a timely notice of appeal with this Court on September 12, 2000. On October 17, 2000, Johnson Homes of Meridian, Inc. (“Johnson-Meridian”), filed a petition in bankruptcy in the United States Bankruptcy Court for the Southern District of Mississippi. On May 21, 2001, this Court stayed the appeal pending the resolution of Johnson-Meridian’s bankruptcy proceedings. On December 21, 2001, the bankruptcy judge granted the Hathcocks relief from the automatic stay to permit them to proceed in their action against JMH. On August 5, 2002, the Hathcocks filed in this Court a copy of the order granting them relief, and we returned the case to our active docket. On September 19, 2002, we ordered the parties to re-brief the issues raised on appeal in light of the significant amount of time that had passed since the parties’ original submission.

I.

Review of a trial court’s denial of a motion to compel arbitration is properly sought through a direct appeal. Rule 4(d), Ala. R.App. P.; A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). On appeal, JMH argues that, as part of his purchase of a mobile home, Michael Hath-cock signed a valid arbitration agreement, and, therefore, that both Michael and Patsy Hathcock must arbitrate their claims against it. JMH also argues that any question regarding the legality of the sale contract is a question for an arbitrator, not the trial court, to decide.

II.

The Hathcocks attack the validity of the sale contract because, they allege, JMH misrepresented in that contract that their mobile home was new. Therefore, they argue, the trial court properly denied JMH’s motion to compel arbitration because, they argue, the sale contract, that is, the contract underlying the arbitration agreement, is void under the State’s consumer-protection laws.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), as interpreted by the federal courts, governs arbitration agreements in transactions that affect interstate commerce. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Under the FAA, “if the claim is of fraud in the inducement of the arbitration clause itself — an issue which goes to the ‘making’ of the agreement to arbitrate — ” the court may decide it. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). The FAA, however, “does not permit the ... court to consider claims of fraud in the inducement of the contract generally.” 388 U.S. at 404, 87 S.Ct. 1801.

“Fraud in the inducement consists of one party’s misrepresenting a material fact concerning the subject matter of the underlying transaction and the other party’s relying on the misrepresentation to his, her, or its detriment in executing a document or taking a course of action.”

Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000). In essence, then, the Hathcocks argue that JMH fraudulently induced Michael Hathcock into entering into the sale contract. Nothing in the record suggests, and the Hath-cocks do not argue, that the arbitration agreement itself — as distinguished from the sale contract — was induced by fraud. Moreover, nothing in the record indicates that Michael Hathcock did not willingly assent to be bound by the sale contract, the freestanding arbitration agreement, or the “Installment Note, Security Agreement, and Disclosure Statement.” Accordingly, there is no fraud claim that goes to the “making” of the arbitration agreement itself, and, thus, no fraud claim that must be tried in the court.

“ ‘[A]ny claims as to fraud in the inducement of the contract generally ... are subject to arbitration.’ ” Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1168 (Ala.1999) (quoting Ex parte Lorance, 669 So.2d 890, 892 (Ala.1995)). Under Prima Paint, whether JMH’s misrepresentations violate Alabama’s Deceptive Trade Practices Act or some other Alabama law is an issue for an arbitrator to decide. The parties’ arbitration agreement specifically states that Michael Hathcock agreed to arbitrate disputes concerning “the condition of the mobile home; the conformity of the mobile home sold to the contract; [and] the representations, promises, undertakings, and/or covenants made by the seller.” Accordingly, the trial court erred in denying JMH’s motion to compel arbitration on the basis that the sale contract violated Alabama’s Deceptive Trade Practices Act.

III.

Patsy Hathcock argues that she is not bound by the arbitration agreement (1) because she did not sign it, and (2) because her claims are not based on the sale contract entered into by her husband Michael. The duty to arbitrate is a contractual obligation, and generally a court cannot compel a party to arbitrate any claims he or she has not agreed to submit to arbitration. See AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 648, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Nonetheless, a party cannot claim the benefits of a contract without accepting its burdens. Michie v. Bradshaw, 227 Ala. 302, 308, 149 So. 809, 814 (1933).

The complaint in this case does not differentiate between Patsy’s claims and Michael’s claims. Rather, the complaint refers to Patsy Hathcock and Michael Hathcock collectively as “the plaintiffs.” Patsy argues, however, that her claims are “distinct from the claims advanced in the complaint stemming from the contract itself.” (The Hathcocks’ Brief at 15.) Accordingly, to the extent that her claims are not based on the underlying sale contract, the trial court did not err in finding that Patsy Hathcock is not required to arbitrate her claims, if she has any.

IV.

We conclude that the trial court, in its August 3, 2000, order, erred in denying JMH’s motion to compel Michael Hathcock to arbitrate his claims. We conclude that the trial court properly denied JMH’s motion to compel Patsy Hathcock to arbitrate her claims insofar as they do not relate to the underlying sale contract. Accordingly, we reverse the trial court’s order in part, affirm the order in part, and remand this cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in Part III of the main opinion, in which this Court affirms the trial court’s finding that Patsy Hathcock is not required to arbitrate her claims insofar as they do not relate to the underlying sale contract. I dissent from the remainder of the opinion, which reverses the trial court’s denial of the motion to compel arbitration filed by Johnson Mobile Homes of Alabama, Inc. See my dissent in Selma Medical Center v. Fontenot, 824 So.2d 668, 676-93 (Ala.2001).

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur insofar as the main opinion affirms the trial court in its denial of the motion of the defendants “JMH” to compel Mrs. Hathcock to arbitrate her claims. I further concur that Mrs. Hathcock cannot enforce any contract between Mr. Hath-cock and JMH. I respectfully dissent, however, insofar as the main opinion reverses the trial court in its denial of the motion of JMH to compel Mr. Hathcock to arbitrate his claims.

The record contains substantial evidence that JMH misrepresented used goods as new in order to induce Mr. Hathcock to sign the documents. Section 8-19-5(6), Ala.Code 1975, part of the Alabama Deceptive Trade Practices Act, legislation adopted to exercise the police powers of this state, expressly proscribes misrepresenting used goods as new. A purported contract obtained by a violation of such a law is void. Woods & Co. v. Armstrong, 54 Ala. 150, 152 (1875) (“ ‘It has been repeatedly determined that a penalty inflicted by statute upon an offense, implies a prohibition, and a contract relating to it is void, even where it is not expressly declared by the statute that the contract shall be void.’ ”); Western Union Telegraph Co. v. Young, 138 Ala. 240, 243, 36 So. 374, 375 (1903) (“[A]ll contracts which are made in violation of a penal statute are as absolutely void as if the law had in so many words declared that they should be so.... It is not necessary that a statute should impose a penalty for doing or omitting to do something in order to make a contract void which is opposed to its operation. It is sufficient if the law prohibits the doing of the act, and when it does, the court, being organized under the law, and required to administer it, cannot enforce any supposed rights predicated upon a prohibited act or omission to perform an act that is prohibited.”) (citations and internal quotation marks omitted); Gill Printing Co. v. Goodman, 224 Ala. 97, 102, 139 So. 250, 254 (1932) (“[CJontracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the law which was enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, [are] void and nonenforceable.”) (citations and internal quotation marks omitted); Marx v. Lining, 231 Ala. 445, 448, 165 So. 207, 209-10 (1935) (“It is established by a long line of decisions of this court that contracts specifically prohibited by law, or the enforcement of which violates the law, or the making of which violates the laws which were enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, are void and unenforceable.”). See also Bankers & Shippers Ins. Co. v. Blackwell, 255 Ala. 360, 365, 51 So.2d 498 (1951). As a defense applicable to contracts in general, this void-contract caselaw is not preempted by the Federal Arbitration Act. 9 U.S.C. § 2.

“[A] party cannot be forced to arbitrate if the contract containing the arbitration clause, which gives the arbitration clause viability, is found to be void.” Alabama Catalog Sales v. Harris, 794 So.2d 312, 316 (Ala.2000) (citation and internal quotation marks omitted). The court, rather than an arbitrator, decides the issue of whether an arbitration clause is void for violation of a statute. Id. at 317.

Therefore, the trial court did not err in holding the contracts containing the arbitration provisions void ab initio and in denying the motion of JMH to compel Mr. Hathcock to arbitrate his claims. Of course, if we were to affirm these rulings by the trial court and were to allow Mr. Hathcock to proceed to litigate his claims in court, he could not there pursue his claims for breach of warranty and for bad faith based on the contract held void ah initio by the trial court.

      . The Hathcocks asserted claims of (1) fraud under Alabama's Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975; (2) breach of express warranty and bad faith; (3) liability under Alabama's Extended Manufacturer's Liability Doctrine; (4) negligence, recklessness, and wantonness; (5) a violation of the Alabama Mini-Code, § 5-19-1 et seq., Ala.Code 1975; and (6) the tort of outrage.

      . The parties do not contest on appeal that the transaction affects interstate commerce so as to be governed by the FAA.

      . We express no opinion as to which of Patsy's claims, if any, are not related to the contract, or the merits of those claims.