author: KING, C.J.,

text:
    Eddie ALEXANDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00887-COA.
    Court of Appeals of Mississippi.
    June 15, 2004.

      William L. Ducker, Purvis, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Eddie Alexander was tried and convicted in the Circuit Court of Lamar County for the sale of a controlled substance pursuant to Mississippi Code Annotated Section 41-29-139. Aggrieved by his conviction and sentence, Alexander appeals and raises the following issues, which we quote verbatim.

I. The Court’s order overruling defendant Eddie Alexander’s motion to dismiss for violation of constitutional right to a speedy trial.
II. The Court’s allowing the amendment of the indictment by the [sjtate to enhance punishment and make the defendant a second and subsequent offender on March 20, 2003, and on the morning of the trial, March 21, 2003, the Court also allowed another amendment changing the date of the offense from June 22, 2000, to June 27, 2000. This was done without notice to the defendant just prior to voir dire examination.
III. The Court’s failure to sustain defense motion for mistrial at the conclusion of [sjtate witness Shane Bound’s testimony
IV. The Court’s sentence of thirty years is not commensurate with the crime punishable in this case.

Finding no error, we affirm.

STATEMENT OP FACTS

¶2. On June 27, 2000, three agents of the Mississippi Bureau of Narcotics were engaged in an undercover drug operation in Lumberton. Shane Bounds, a confidential informant, made contact with Eddie Alexander and told him he wanted to purchase a “40” of crack cocaine. Alexander agreed, and Bounds told him to meet him at his father’s auto repair shop. Bounds was outfitted in an automobile equipped with audio and video surveillance capability, and was given $40 to use for the purchase of the crack cocaine. Alexander met Bounds at the repair shop, and after a brief conversation, Alexander transferred three small rocks to Bounds, and the informant paid him $40, in a “hand-to-hand” exchange. After the exchange, Bounds returned to the pre-determined location, to meet with the undercover agents. The evidence was taken into custody, and the Mississippi State Crime Laboratory analysis conducted on the rocks indicated that the substance was indeed .10 grams of crack cocaine.

¶ 3. On March 9, 2001, Alexander was arrested and charged with sale of a controlled substance. Alexander was bound over for the June 2001 term of the Lamar County grand jury, but he was not indicted. The grand jury convened twice over the next fifteen months, but Alexander was still not indicted. He remained free on bond, but was required to report to the circuit clerk’s office once a month.

¶ 4. On June 10, 2002, Alexander was formally indicted by the Lamar County Grand Jury, pursuánt to Mississippi Code Annotated Section 41-29-139, for the sale of .10 grams of cocaine, a Schedule II controlled substance.

¶ 5. On September 23, 2002, Alexander was brought before the trial judge, who set the trial for the next Lamar County court term, in March 2003. At this time Alexander signed an “Order Continuing and PreSetting Trial” and an “Acknowledgment of Right to be Arraigned.” These documents specifically waived Alexander’s right to a speedy trial under the United States and Mississippi Constitutions, and waived his right to be arraigned and tried within 270 days of that arraignment pursuant to Mississippi Code Annotated Section 99-17-1. There were no motions or other matters brought before the court regarding Alexander’s case at this time.

¶ 6. On March 18, 2003, a motion hearing was held before the trial judge. Alexander had a number of motions, including a motion to reveal the deal, agreement or understanding with state witness Shane Bounds; a motion to suppress evidence; and a motion to compel interviews and compléte criminal histories of the State’s witnesses. The trial judge granted Alexander’s request to reveal the deal and requests for interviews and criminal histories of the State’s witnesses, but denied his motion to suppress the evidence. The trial judge also indicated, on the record, that the State was planning on filing a motion to enhance the punishment based on Alexander’s previous convictions. At this time, Alexander also filed a motion demanding a speedy trial, which was denied by the trial judge on March 20, 2003.

¶ 7. On March 21, 2003, another motion hearing was held, where the State moved to amend the indictment to change the date of the sale from June 22, 2000, to June 27, 2000. The State also made a motion to enhance Alexander’s penalty, based on his status as an habitual offender, and pursuant to Mississippi Code Annotated Section 99-19-81. Both of the State’s motions were granted, and trial proceedings began that same day. On March 21, 2003, a jury found Alexander guilty of transfer of .10 grams of a control II substance.

¶ 8. On March 25, 2003, a bifurcated hearing was held pursuant to Mississippi Code Annotated Section 41-29-147, to determine the status of Alexander as a second and subsequent offender. Alexander was adjudged an habitual offender based on three previous convictions for possession of marijuana.

¶ 9. At a March 28, 2003 sentencing hearing, the trial judge sentenced Alexander to forty years in the custody of the Mississippi Department of Corrections, with thirty years to serve, ten years suspended, and upon successful completion of that time, to five years on post-release supervision.

ISSUES AND ANALYSIS

I.

The Court’s order overruling defendant Eddie Alexander’s motion to dismiss for violation of constitutional right to a speedy trial.

¶ 10. A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, § 26 of the Mississippi Constitution of 1890, and Alexander asserts that the trial court erred in overruling his motion to dismiss the case because his right to a speedy trial was violated. Alexander asserts that the constitutional clock began to run on March 9, 2001, the day of his arrest. Approximately sixteen months elapsed between Alexander’s arrest and indictment on June 10, 2002. An additional nine months elapsed between indictment and trial. This period of twenty-five months is presumptively prejudicial, and in violation of his constitutional rights.

“When a defendant’s constitutional right to a speedy trial is at issue, the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable.” Noe v. State, 616 So.2d 298, 300 (Miss.1993). Speedy trial issues are analyzed by applying the four factors detailed in Barker which include (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). No single factor controls. Id. Furthermore, the court is not strictly limited to consideration of the Barker factors. State v. Magnusen, 646 So.2d 1275, 1278 (Miss.1994). “Alleged violations of the right to a speedy trial are decided on a case by case basis, weighing the facts and circumstances and the conduct of the prosecution and the defense.” Elder v. State 750 So.2d 540, 542(¶ 7) (Miss.Ct.App.1999) (citations omitted). To determine whether Alexander’s rights were violated, this Court examines the Barker factors within the context of this case.

A Length of Delay

¶ 11. “The supreme court has held that the right to a speedy trial under the United States Constitution attaches immediately upon the defendant’s arrest.” Elder v. State, 750 So.2d 540, 545 (¶ 10) (Miss.Ct.App.1999), citing Box v. State, 610 So.2d 1148, 1150 (Miss.1992). The court has also held that after the defendant’s arrest, a delay of more than eight months before there is a trial is presumptively prejudicial to the defendant, and volative of his right to a speedy trial. Id. This presumption can be rebutted by balancing the remaining Barker factors. Handley v. State, 574 So.2d 671, 676 (Miss.1990).

¶ 12. To place this issue into perspective, this Court sets out the following chronology of events beginning with the date of the criminal activity, and ending with Alexander’s trial and subsequent conviction.

June 27, 2000 Date of the sale of .10 grams of cocaine from Alexander to Bounds
March 9, 2001 Arrested for transfer of a controlled substance
June 10, 2002 Indicted on charge of transfer of a controlled substance
September 23, 2002 Order setting trial for March 9, 2003 and “Acknowledgment by Defendant of Right to be Arraigned,” and “Order Continuing and Pre-Setting Trial” signed
March 18, 2003 Demand for speedy trial filed
March 20, 2003 Demand for speedy trial denied
March 21, 2003 Alexander convicted of transfer of a controlled substance
March 28, 2003 Alexander sentenced to thirty years to serve and ten years suspended pending completion of the time served and five years of post-release supervision

¶ 13. Alexander was arrested and charged with transfer of a controlled substance on March 9, 2001, but was not tried for the offense until March 21, 2003. As 742 days, approximately 25 months elapsed, between the arrest and the trial, the delay in the present case is presumptively prejudicial and triggers consideration of the other Barker factors.

B. Reason for Delay

¶ 14. Alexander argues that the reasons for the delay of his trial should be attributed to the State. Alexander contends that the hospitalization of one of the State’s witnesses was not sufficient to establish good cause for the State’s fifteen-month delay in indicting him. Alexander contends that the State had four other witnesses who could have testified before the grand jury. Alexander contends that the State’s failure to indict him was a tactical move to circumvent a possible 270-day problem under Mississippi Code Annotated Section 99-17-1 (Rev.2000), which requires the State to try a case within 270 days of the indictment. Alexander also contends that the delay prejudicially affected his ability to develop an alibi defense.

¶ 15. The State bears the responsibility for bringing a defendant to a speedy trial. Turner v. State, 383 So.2d 489, 491 (Miss.1980). The State asserts that the reason for the delay in indicting Alexander was due to the hospitalization and year-long recuperation period for Mississippi Bureau of Narcotics Agent Bobby Patterson following a motor vehicle accident. Patterson was one of the three agents who facilitated the undercover operation against Alexander. Patterson was the agent who took the evidence into custody during the operation. Alexander does not disagree that Agent Patterson was incapacitated and out on sick leave for a year from the Bureau of Narcotics. However, Alexander argues that there were four other state witnesses who could have presented the case at either of the two grand juries that were convened in the fifteen months he was out on bond.

¶ 16. We agree with Alexander, and find that the State could have used the three other officers who were present during the undercover operation to present the case to the grand jury. Although Agent Patterson did take the cocaine into custody, in grand jury proceedings it is not necessary to establish the chain of custody, and further, hearsay testimony is allowed, and any of the other officers present could have testified regarding the evidence Agent Patterson took into custody. See Clay v. State, 829 So.2d 676, 680(¶ 7) (Miss.Ct.App.2002); Ex parte Jones County Grand Jury, First Judicial Dist., 705 So.2d 1308, 1315 (¶ 32) (Miss.1997).

¶ 17. Therefore, we do not find good cause for the State’s failure to indict Alexander for fifteen months, and accordingly the fifteen month delay is attributed to the State.

C. Defendant’s assertion of his right to a speedy trial

¶ 18. Alexander contends that signing the “Acknowledgment by Defendant of Right to be Arraigned,” and “Order Continuing and Pre-Setting Trial” did not effectively waive his right to a speedy trial. Alexander asserts that he should not have been required to sign the forms, as he was in court requesting a trial date, and that by requiring him to sign the forms, he was stripped of his right to assert a speedy trial violation. However, Alexander acknowledges that all defendants in Lamar County are required to sign these documents before leaving the courtroom on docket day, and should they decline to sign these documents their case will be pre-set at the next available date. This statement by Alexander would appear to negate his argument that he was prevented from seeking a speedy trial.

¶ 19. Alexander signed these two forms on September 23, 2002, and our examination of the record reveals that on March 21, 2003, the trial judge stated, “That Eddie has up to this point in time waived arraignment, waived speedy trial and he and Mr. Johnson are not ready for him to be arraigned.” There was no objection from Alexander at this time.

¶ 20. Further, Alexander never, in the two intervening years, between his arrest on March 9, 2001, and his trial on March 18, 2003, filed a motion demanding a speedy trial. Alexander did not file a motion to dismiss for violation of his right to a speedy trial until March 19, 2003, just days before the case was set for trial. The trial judge denied this motion, stating that on September 23, 2002, Alexander had signed both the “Order Continuing and Pre-Set-ting Trial” and an “Acknowledgment of Right to be Arraigned,” which specifically waived his right to a speedy trial under the U.S. and Mississippi Constitutions.

¶21. “Although it is the State’s duty to insure that the defendant receives a speedy trial, a defendant has some responsibility to assert this right.” Smith v. State, 812 So.2d 1045 (¶ 11) (Miss.Ct.App.2001) (citation omitted).

¶ 22. Since Alexander did not diligently pursue a speedy trial, this factor must weigh against him.

D. Prejudice to the defendant

¶ 23. “The supreme court has held that prejudice is assessed in the speedy trial context (1) to protect against oppressive pretrial incarceration, (2) for the minimization of anxiety and concern of the accused, and (3) for the limitation of the possibility of impairment of the defense.” Elder v. State, 750 So.2d 540, 545 (¶ 19) (Miss.Ct.App.1999) (citation omitted). “The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudices as a result of delay.” Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss.2001).

¶ 24. When Alexander was indicted, on June 10, 2002, his right to a speedy trial re-attached. See State v. Woodall, 801 So.2d 678, 681(¶8) (Miss.2001). Therefore, we must look to the fifteen-month delay between the arrest and Alexander’s indictment to determine if Alexander was denied his right to a speedy trial. A two-prong test has been established to determine if a defendant’s constitutional right to a speedy trial has been violated due to the State’s failure to expeditiously indict. Hooker v. State, 516 So.2d 1349, 1351 (Miss.1987). Under the Hooker test Alexander has the burden of proof to show that (1) the pre-indictment delay caused actual prejudice and (2) such delay was intentional by the State to gain a tactical advantage. Id.

¶25. Alexander contends that he was prejudiced in the development of an alibi defense by the State’s fifteen-month delay in indicting him. In light of the fact that Alexander admitted in the record that his defense was one of “mistaken identity,” his theory of a possible alibi defense holds no weight, and is not a showing of actual prejudice. Prejudice of such a speculative nature is not actual prejudice, and we can not find that Alexander’s rights were violated based on mere conjecture. Regardless of the date, Alexander’s stated defense would remain the same, that he was not the person that sold the drugs. The fact that Alexander was required to report the circuit clerk’s office while he was out on bond, coupled with his assertion that the delay in indicting him caused him prejudice in the preparation of an alibi defense is not a showing of actual prejudice.

¶26. We find no merit to Alexander’s contention that he was denied his constitutional right to a speedy trial, and that he was prejudiced by the denial. Accordingly, we find no merit to this issue.

¶ 27. The primary delay in this case is attributable to the State’s failure to indict Alexander for a fifteen month period. The fifteen-month delay in indicting Alexander is counted against the State, and triggers an analysis of the factors under the Hooker test. However, as Alexander can not show actual prejudice, or that the reason for the delay was a tactical advantage for the State, he fails to meet his burden of proof under Hooker, and as such there is no merit to his assertion that he was denied his right to a speedy trial.

F. Conclusion

¶28. Having applied the Barker and Hooker factors, to the facts and circumstances of this case, we find that Alexander’s constitutional right to a speedy trial was not violated.

¶ 29. Alexander was indicted on June 10, 2002. On September 23, 2002, he waived arraignment, and requested a trial date. The trial judge set the case for trial in March 2003, which was the next Lamar County Circuit Court term. The statutory right to a speedy trial is counted from the date of arraignment, or from the waiver of arraignment. Because less than 270 days elapsed between the waiver of arraignment on September 23, 2002, and the trial in March 2003, there is no violation of the statutory right to a speedy trial.

II.

The Court’s allowing the amendment of the indictment by the state to enhance punishment and make the defendant a second and subsequent offender on March 20, 2003, and on the morning of the trial, March 21, 2003, the Court also allowed another amendment changing the date of the offense from June 22, 2000, to June 27, 2000. This was done without notice to the defendant just pri- or to voir dire examination.

¶ 30. Alexander asserts that the trial court erred when it granted the State’s motion to amend the indictment to add that he was a second and subsequent offender, and to change the date of the offense from June 22, 2000 to June 27, 2000. Alexander argues that these amendments were substantive matters, and as such they required the consent of the grand jury. Alexander asserts that by amending the indictment the day of the trial, he was not prepared to face additional charges concerning his background, and was further prejudiced because he was denied the “possibility of establishing an alibi defense for June 27, 2000.”

¶ 31. “[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Givens v. State, 730 So.2d 81, 87 (¶ 20) (Miss.Ct.App.1998), citing Shelby v. State, 246 So.2d 543, 545 (Miss.1971). “The well-established test in this jurisdiction for determining whether the defendant is prejudiced by the amendment depends on whether a defense under the original indictment would be equally available under the amended indictment.” Id. (citations omitted) “If both the defense and the evidence remain unhindered after amending the indictment, then the amendment is considered to be an amendment of form rather than substance.” Id. (citations omitted).

¶ 32. The portion of Rule 7.09 relevant to the amendment of the indictment reads:

All indictments may be amended as to form but not as to the substance of the offense charged.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

URCCC 7.09

¶ 33. Rule 7.06(5) of the Uniform Rules of Circuit and County Court provides that “[flailure to state the correct date shall not render the indictment insufficient.” Furthermore, Section 99-7-21 of the Mississippi Code allows the court to “cause the indictment to be forthwith amended” to cure any formal defect. Miss.Code Ann. § 99-7-21 (Rev.2000). “Although Rule 7.09 denies the trial court authority to make substantive amendments of indictments, the Mississippi Supreme Court has observed that amending the date of the alleged offense is a change of form only where time is not an essential element or factor in the indictment.” Givens, 730 So.2d at 87 (¶ 19) (citation omitted).

¶ 34. The facts in the record indicate that Alexander never filed an alibi defense for June 22, 2000, and that his defense was one of “mistaken identity.” Nothing in the record indicates that Alexander intended to present a time-specific defense, such as alibi. Alexander’s sole point of contention is that his chance for an alibi defense was removed when the State changed the date, because he had no independent recollection of events that occurred on June 27, 2000. The trial judge stated in his order that Alexander had the same defenses available to him regardless of his status as a subsequent offender and regardless of the date. “Reversal is not necessary where the same defense and the same witnesses are available for both the original date and the amended date on the indictment.” Id. (citations omitted). We find that the amendments to Alexander’s indictment were of form rather than substance, and that his defense under the amended indictment remained the same.

¶ 35. Accordingly, we find no merit to this issue.

III.

The Court’s failure to sustain defense motion for mistrial at the conclusion of State witness Shane Bound’s testimony.

¶ 36. Alexander contends that the trial court erred in not granting a mistrial because a witness for the State unfairly introduced evidence of other crimes, and it unfairly prejudiced the jury. On cross-examination Shane Bounds, the confidential informant, who facilitated the buy from Alexander, was questioned regarding a conversation he had with Alexander’s attorney, and the following testimony was elicited:

Q: [Attorney for Alexander] Now, I’m going to ask you, remind you of a couple of things. You and I, as a matter of fact, we met about two weeks ago, didn’t we?
A: [Shane Bounds] Uh-huh (indicating yes).
Q: And you will recall that you and I had, I think two, maybe three telephone conferences, before that?
A: Yes, sir.
Q: Friendly conferences, weren’t they? A: Yeah.
Q: You and I didn’t have any problems ?
A: No.
Q: And you will recall that I told you that I wasn’t trying to talk you into anything, I wasn’t trying to talk you out of anything?
A: Right.
Q: I believe those were the exact words that I used. Did you have any problem with me?
A. No, not really. I didn’t want to tell y’all that I was — had to work for them. I felt scared for — if y’all knew.
Q: Well, that’s actually going to be my next question. The fact is you told me point blank that it wasn’t Eddie [Alexander] that sold you anything, didn’t you?
A: Right.
Q:You told me that?
A: No. I said on that statement that you have that I didn’t — I couldn’t honestly remember.
Q: Mr. Bounds, actually the first time we talked was almost a year ago?
A: Yeah.
Q: And in that conversation we weren’t talking about the tape?
A: Right.
Q: I mean a statement.
A: Right.
Q: I was just asking you point blank as one human being to another and do you remember telling me that Eddie didn’t sell you any dope?
A: No.
Q: You don’t remember saying that?
A: No, not that long ago.
Q: Okay. All right. But you do remember me and you meeting and you told me that, right?
A: Right, yes, sir.
Q: You told me point blank that Eddie didn’t sell you anything?
A: Yes, sir.
Q: There was an intervening conversation, there was a conversation a long time ago and then I think there was one little short, do you remember that?
A: No.
Q: Okay. You’re under quite a bit of pressure to testify, aren’t you?
A: Yes, sir.
Q: I mean you feel the pressure?
A: Yes, sir.
Q: Do you recall telling me when we met at the BRC that you told me that you had been told that the State would send you to prison if you didn’t testify against Eddie Alexander, do you remember telling me that?
A: Yeah.
Q: Now, I have to ask you were you lying then or are you lying now?
A: No.
Q: You weren’t lying either?
A: No.
Q: Either time. Well, see, I don’t see how that could be true both times.
A: Why is that?
Q: I don’t understand how you could tell me that Eddie Alexander didn’t sell you anything.

¶ 37. On re-direct examination, Bounds again identified Alexander as the man that he brought the cocaine from. The State then asked Bounds the following questions:

Q: All right. Now, ever since Mr. Alexander’s been arrested for this charge, how many times has he come into [sic] see you?
A: I couldn’t honestly say. It’s been a number of times.
Q: A number of times since he was arrested?
A: Yes, ma’am.
Q: Now, during the times that Mr. Alexander came to see you alone, did he talk to you about the charge that he had?
A: Yes, ma’am.
Q: Were you afraid of him?
MR. JOHNSON [attorney for Alexander]: Your honor I am going to object to leading, leading this'witness.
THE COURT: I will overrule at this point in time.
Q: Were you afraid of Mr. Alexander?
A: Yes, ma’am.
Q: And what did you base that?
A: When II was always a little nervous on that, because I didn’t know if he knew anything or nothing in that situation. But at one point when he met me he said that a guy was named Kurt was down from New Orleans, because he had hit two guys, so that means knocked off, that he could pay him $3,000, have the same done to me.
Q: So when you told Mr. Johnson that Mr. Alexander didn’t have anything to do with selling you the drugs, why did you tell him that?
A: Because I felt if I told him that, that he might go ahead and have that done. I was scared. I was just trying to get him off the property, a nice way without telling him just to get off my property.

Bounds then indicated that the conversation with Alexander “about the hit man” occurred before Johnson ever came to see him. Alexander then requested permission to re-cross in light of this new information. The trial judge granted the request, but stated, “What’s new about it, you asked him if he told you that and he’s got a right to explain why he did.” A bench conference was held before the recross examination, and the assistant district attorney indicated that she had called Alexander’s attorney and put him on notice that Alexander had threatened Bounds, and that Alexander must be kept away from Bounds.

¶ 38. On re-cross examination Bounds indicated that he had reported the incident to Agent Patterson, but had not filed a police report regarding the alleged threat. Based on this testimony Alexander made a motion for a mistrial due to the supposed prejudicial nature of Bounds testimony on re-direct.

¶39. Rule 404(b) of the Mississippi Rules of Evidence states: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith....” M.R.E. 404(b).

¶ 40. “Relevancy and admissibility of evidence are largely within the discretion of the trial court, and reversal may be had only where that discretion has been abused.” White v. State, 742 So.2d 1126 (¶29) (Miss.1999). “Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Id.

¶ 41. Alexander’s counsel asked numerous questions regarding Bound’s statements to him. In doing so, Alexander opened the door for questions on re-direct regarding the statement. Jackson v. State, 766 So.2d 795, 807 (¶ 37) (Miss.Ct.App.2000) (citations omitted). The State’s question was in direct response to an issue raised in Jackson’s cross-examination; thus, it was proper redirect. The Mississippi Supreme Court has held:

The trial court has broad discretion in allowing or disallowing redirect examination of witnesses. When the defense attorney inquires into a subject on cross-examination of the State’s witnesses, the prosecutor on rebuttal is unquestionably entitled to elaborate on the matter.... Because these matters were all brought out on cross-examination, we find the trial court did not abuse its discretion in allowing redirect examination on the matters.

Jackson v. State, 766 So.2d at 807 (¶ 37) (internal citations omitted).

¶ 42. The record is conclusive that Alexander opened the door for the testimony Bounds gave on re-direct-examination. The trial judge did not abuse his discretion in allowing the prosecutor to give Bounds an opportunity to explain the impeaching statements he made to Alexander’s counsel.

¶ 43. Accordingly, we find no merit to this issue.

IV.

The Court’s sentence of thirty years is not commensurate with the crime punishable in this case.

¶44. Alexander asserts that a sentence of forty years, with ten years suspended was excessive for the sell of .10 grams of cocaine. Alexander contends that his sentence is an unusually heavy penalty for someone selling such a small amount of cocaine, and it is not commensurate with the crime punishable in this case. Alexander also points out that sentences across the state vary widely for the sale of a small amount of cocaine, and the state needs to adopt more uniform sentencing guidelines, such as those available in federal court.

¶ 45. What Alexander fails to mention in his brief is that the trial court adjudged him to be a habitual offender, pursuant to Mississippi Code Annotated Section 41-29-147, which permits a doubling of the sentence where it can be shown that a defendant has prior drug offenses. The State introduced certified copies of three prior convictions, and the authenticity was not disputed by Alexander. On September 22, 1997, Alexander pled guilty to a charge of possession of marijuana. On June 22, 1998, Alexander again pled guilty to a charge of possession of marijuana in a motor vehicle. Finally, on November 23, 1998, Alexander once again pled guilty to a charge of possession of marijuana.

¶ 46. Alexander’s argument was that all his prior convictions were misdemeanors, and should not have been used to enhance his punishment. Alexander’s counsel stated in the record that he was fully aware that the trial court could use misdemeanors to enhance his sentence under the law, but that he did not think this was a proper case to use the enhancement statute.

¶ 47. The record clearly reflects that Alexander’s prior drug offenses qualified him as a habitual offender pursuant to Mississippi Code Annotated Section 41-29-147. As all three convictions could be used to enhance Alexander’s punishment he could have received a maximum sentence of sixty years, and as such the trial judge was well within his statutory authority to sentence Alexander to thirty years in the custody of the Mississippi Department of Corrections.

¶ 48. Accordingly, we find no merit to this issue.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND ENHANCED SENTENCE AS A SECOND AND SUBSEQUENT OFFENDER OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED, FIVE YEARS OF POST-RELEASE SUPERVISION AND A FINE OF $10,000 IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: JOHNSTONE, Justice.

license: Public Domain

text:
    James H. WHATLEY, Jr., and Whatley Construction Company, Inc. v. William S. REESE.
    1011485.
    Supreme Court of Alabama.
    Aug. 22, 2003.
    Larry S. Logsdon and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant.
    Christy Jackson of Hebson, Liddon, & Slate, P.C., Birmingham, for appellee.
   JOHNSTONE, Justice.

This Court granted the defendants James H. Whatley, Jr., and Whatley Construction Company, Inc. (collectively “the Whatley defendants”), permission under Rule 5, Ala. R.App. P., to appeal an interlocutory order denying them summary judgments on the claims of the plaintiff William S. Reese (“Reese”) for breach of contract, negligence, wantonness, and fraud. The sole issue presented by this appeal is whether the doctrine of caveat emptor applies to the claims of Reese, the first purchaser of a new home from the Whatley defendants and the only person ever to live in the home, because he temporarily transferred legal title to the home to his mother, Hilda Hyche (“Hyche”). The Whatley defendants do not challenge Reese’s status as the real party in interest.

We hold that the doctrine of caveat emptor does not apply to Reese’s claims against the Whatley defendants. Therefore, we affirm the denial of the summary judgments on Reese’s claims against the Wbatley defendants for breach of contract, negligence, wantonness, and fraud.

In 1994, Reese contracted with the Whatley defendants for the construction of a home on a vacant lot he owned. When the home was completed, Reese moved into the home and has lived there alone continuously ever since. In 1998, Reese deeded legal title to the home to Hyche, but Hyche never occupied the home. In 1999, Hyche deeded legal title back to Reese.

To recover for damage to the home allegedly caused by the exterior insulation and finishing system (“EIFS”) applied to the home when it was built, Reese and Hyche sued the 'Whatley defendants for breach of contract, negligence, wantonness, fraud, breach of warranty under the Alabama Uniform Commercial Code and violations of the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”). Moving for summary judgment, the Whatley defendants asserted that the doctrine of caveat emptor applied to Hyche’s claims because she was not the first owner of the home. They asserted also that the doctrine of caveat emptor applied to Reese’s claims because he had deeded legal title to the home to Hyche in 1998.

Hyche conceded that caveat emptor defeated her claims because she had not bought the home from the Whatley defendants. However, Reese argued that caveat emptor did not apply to his claims because he had bought a new home from the Whatley defendants, he had continuously and exclusively occupied the home since it was built, and Hyche had deeded legal title to the home back to him in 1999. \

The trial court granted summary judgment on all of Hyche’s claims. Holding that EIFS constituted neither “goods” nor a “product,” the trial court also granted summary judgment on Reese’s claims under the Alabama Uniform Commercial Code and the AEMLD. However, the trial court held that caveat emptor did not apply to Reese’s claims because he was the first purchaser of the home from the Whatley defendants and was the exclusive occupant at all times thereafter despite the temporary transfer of legal title to Hyche. Accordingly, the trial court denied summary judgment on Reese’s claims for breach of contract, negligence, wantonness, and fraud.

Appealing the denial of summary judgment on these particular claims by Reese, the 'Whatley defendants concede that “[h]ad the house at issue in this case never been transferred to an owner other than Reese, the doctrine of caveat emptor would not' apply to claims brought by the original owner, Reese, against the Whatley defendants, because Reese would be the original purchaser of a new house.” What-ley defendants’ Brief, p. 9 (emphasis omitted). Nonetheless, they contend that the temporary transfer of legal title to Hyche by itself made the doctrine of caveat emptor applicable to Reese’s claims. In arguing the applicability or nonapplicability of caveat emptor, none of the parties differentiates among Reese’s remaining theories of breach of contract, negligence, wantonness, and fraud.

This Court reviews de novo a ruling on a motion for summary judgment. General Motors Corp. v. Kilgore, 853 So.2d 171 (Ala.2002). “Alabama has abolished the doctrine of caveat emptor in the commercial sale of a new house by its builder-vendor .... ” Sims v. Lewis, 374 So.2d 298, 303 (Ala.1979), although caveat emptor still applies to the sale of a used house. Boackle v. Bedwell Constr. Co., Inc., 770 So.2d 1076, 1079 (Ala.2000). In Boackle, the second owners of a home sued its builder and the plastering subcontractor for damage to the home caused by the failure of the EIFS to prevent water intrusion. Affirming summary judgments for the defendants on the plaintiffs’ claims for negligent construction of the home, this Court held:

“The lack of privity between the plaintiffs and the defendants forecloses such claims. The law so evolved in this Court’s decisions in Wells v. Clowers Constr. Co., 476 So.2d 105 (Ala.1985), and Wooldridge v. Rowe, 477 So.2d 296 (Ala.1985). In Wooldridge, the plaintiffs sued the builder of their home for property damage resulting from a fire caused by a negligently constructed fireplace. Affirming the dismissal of the plaintiffs’ claims, this Court reasoned that, because the plaintiffs were not in privity of contract with the builder, the doctrine of caveat emptor barred their recovery. 477 So.2d at 298. In Wells, an insurance company as subrogee and a homeowner (not the original purchaser) sued a construction company for property damage resulting from a fire caused by another negligently constructed fireplace. This Court, noting that this precise issue had been addressed in Wooldridge, applied the doctrine of caveat emptor and affirmed summary judgment for the builder. 476 So.2d at 106.”

770 So.2d at 1081.

In the present case, because Reese contracted with the Whatley defendants for construction of the home, he was in privity of contract with them. Reese’s temporary transfer of legal title to Hyche did not alter the privity of contract that existed between Reese and the Whatley defendants. Moreover, Reese, the first owner and occupier of the newly constructed home, continuously maintained exclusive occupancy of the home. Under our holdings in Boackle, Wooldridge, and Wells, the doctrine of caveat emptor did not apply to Reese’s claims against the Whatley defendants. Therefore, we affirm the denial of summary judgment for the Whatley defendants on Reese’s claims for breach of contract, negligence, wantonness, and fraud.

AFFIRMED.

MOORE, C.J., and HOUSTON, LYONS, and WOODALL, JJ., concur.


author: STUART, Justice.

text:
    Ex parte Vincent Edward DAVIS. (In re Vincent Edward Davis v. State of Alabama).
    1012402.
    Supreme Court of Alabama.
    Aug. 22, 2003.

      W. Casey Duncan of Carmichael & Duncan, L.L.C., Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., Nathan A. Forrester, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for respondent.
   STUART, Justice.

Vincent Edward Davis was convicted of five counts of theft of property in the first degree, a violation of § 13A-8-3(a), Ala.Code 1975. The trial court sentenced him to 20 years in prison on each conviction, the sentences to be served concurrently. The Court of Criminal Appeals affirmed Davis’s convictions and sentences in an unpublished memorandum. Davis v. State (No. CR-01-1026, Aug. 23, 2002), 868 So.2d 483 (Ala.Crim.App.2002)(table). This Court granted the petition for a writ of certiorari to consider an issue of first impression: whether an accused’s request pursuant to Rule 404(b), Ala. R. Evid., contained in a discovery motion, that the State give notice of its intent to present evidence of an accused’s prior bad acts, must be filed with the trial court.

The record indicates that Davis served the prosecutor with a copy of his discovery motion and that included in the motion was Davis’s request that the State inform him of the general nature of all evidence of other crimes, wrongs, or acts the State intended to introduce at trial. After voir dire examination, Davis made a motion in limine, seeking to exclude evidence of his alleged deceptive acts other than those charged. Davis argued that the State had not provided him with notice of its intent to use this evidence as required by Rule 404(b), Ala.R.Evid. The trial court informed Davis that the court file did not contain the discovery motion in which Davis alleged he had requested that the State notify him of the evidence the State intended to introduce of other crimes, wrongs, or acts he had committed. The trial court rejected Davis’s argument and admitted the evidence offered by the State. Later in the trial, Davis informed the trial court that he had located his copy of the discovery motion and that he had not filed it with the circuit court clerk because he did not know the circuit court case numbers for the cases against him. The trial court allowed Davis at that time to file the motion in open court.

Rule 404(b), Ala. R. Evid., provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

(Emphasis added.)

The language of Rule 404(b) states that, in order for the prosecution to be required to “provide reasonable notice in advance of trial” of its intent to offer evidence of collateral bad acts considered relevant for particular purposes, the accused’s request must be made before trial. Additionally, the request should be served on the prosecution and, as customary in criminal cases, the request should be in writing. The plain language of Rule 404(b), however, does not appear to require that the trial court rule on the accused’s request that the prosecution be required to give notice to the accused of any evidence of collateral bad acts it intends to present; therefore, we must consider the form of the request itself to determine whether it must be filed in the trial court.

In this case Davis included his request for notice pursuant to Rule 404(b) in a discovery motion. Davis’s motion specifically requested the trial court to order the prosecution to produce all the evidence listed in the motion. See generally Rule 16.1, Ala.R.Crim.P. Rule 16 specifically provides that the State must comply within 14 days after a discovery motion “has been filed in court.” While we recognize that a request for notice under Rule 404(b), Ala. R. Evid., does not require an order from the trial court and we assume the prosecution makes itself aware of the contents of all motions served on it, the prosecution is not required to comply with any request contained in a discovery motion until the discovery motion is filed in the trial court.

Davis appears to argue that since a request made pursuant to Rule 404(b) does not require a ruling by the trial court, it is of no consequence that his discovery motion was not filed with, or ruled upon by, the trial court. However, a discovery motion is addressed to the trial court; it does not require action by the prosecution until after it is filed. Rule 16.1, Ala. R.Crim.P. Therefore, we hold that when a defendant requests notice pursuant to Rule 404(b) and places that request in a discovery motion, the defendant must file the motion in the trial court before the State is required to comply. Cf. Espinosa v. State, 853 S.W.2d 36, 38 (Tex.Crim.App.1993). Moreover, we note that Davis agreed that he had knowledge of the evidence contained in the State’s file; therefore, even if we were to hold that the State erred in failing to respond officially to the Rule 404(b) notice request, the error was at most harmless. Rule 45, Ala.R.App.P.

Regardless of the fact that the language of Rule 404(b) does not require that the request for notice be filed in the trial court, the fact that Davis included the request in a discovery motion relieved the State of a duty to respond until within 14 days of the date the motion was filed with the trial court. See Rule 16.1, Ala.R.Crim.P.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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


text:
    Lula McDOLE, as conservator of the estate of George Johnson v. ALFA MUTUAL INSURANCE COMPANY.
    1020539.
    Supreme Court of Alabama.
    Aug. 22, 2003.
    Richard E. Browning, Mobile, for appellant.
    Philip Henry Pitts and Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for appellee.
   STUART, Justice.

Lula McDole, as conservator of the estate of George Johnson, appeals from the dismissal of her claims against Alfa Mutual Insurance Company (“Alfa”). We affirm.

Background

On- November 1, 1997, the vehicle George Johnson was driving collided with a truck being driven by Jimmy Brown, an employee of Builders Transport, Inc. Johnson was seriously injured as a result of the collision. Johnson alleged that Brown was responsible for the accident, and he sought to recover damages for his injuries from the liability insurer for Builders Transport.

At the time of the accident, Builders Transport was self-insured for the first $1 million .of liability resulting from motor-vehicle accidents. After that amount was exhausted, Builders Transport had an annual aggregate deductible in the amount of $1 million. This meant that Builders Transport was itself liable for the next $1 million of all claims entered against it on a nationwide basis in a given calendar year. After Builders Transport met this annual aggregate deductible, Reliance Insurance Company provided up to $1 million in excess coverage to Builders Transport. After the claims exhausted Reliance Insurance Company’s $1 million excess coverage, Gulf Insurance Company provided another layer of excess coverage to Builders Transport in an amount up to $13 million. According to the trial court, the Gulf Insurance Company excess-coverage policy did not provide “drop down” coverage; this meant that Gulf Insurance’s coverage would apply in this case only if Johnson’s damages exceeded $3 million.

Johnson had two automobile-insurance policies with Alfa that were in effect on the date of the collision. Each policy included uninsured/underinsured-motorist coverage in the amount of $20,000.

Sometime in 1998, Builders Transport filed a petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Georgia, seeking protection under Chapter 11 of the Bankruptcy Code. McDole and Johnson obtained relief from the automatic bankruptcy stay, and their claims against Builders Transport were allowed to proceed but only to the extent “coverage is available under any insurance policy issued to or covering the liability of [Builders Transport], provided, however, that McDole may not execute any judgment so obtained against any asset of [Builders Transport’s] bankruptcy estates.” (Order of the bankruptcy court, In re: Builders Transport, Inc., et al., No. A98-68798-JEM.)

In October 1999, Lula McDole, in her capacity as the conservator of Johnson’s estate, and George Johnson, individually, sued Builders Transport and Alfa. McDole and Johnson (McDole and Johnson are hereinafter referred to collectively as “McDole”) alleged that Brown, while acting as an agent for Builders Transport, had negligently or wantonly operated a motor vehicle so as to cause Johnson’s injuries. McDole also alleged that Builders Transport had negligently or wantonly entrusted its vehicle to Brown. Against Alfa, McDole alleged a bad-faith failure to pay uninsured- or underinsured-motorist benefits. Alfa filed a motion to dismiss the action as to it; in the motion Alfa admitted that the automobile-insurance policies it had issued to Johnson provided uninsured- and underinsured-motorist coverage, but it alleged that McDole’s complaint failed to state a claim upon which relief could be granted and failed to state any set of existing facts under which Alfa could be liable to McDole for uninsured- or underin-sured-motorist benefits.

In May 2001, the commissioner of insurance for the Commonwealth of Pennsylvania petitioned the Commonwealth Court of Pennsylvania to place Reliance Insurance Company into rehabilitation. The Pennsylvania court granted this petition. The court subsequently declared Reliance to be insolvent and ordered the commissioner to liquidate Reliance’s assets.

According to McDole’s brief to this Court, a mediation session was held on June 28, 2002, to try to resolve the dispute between McDole and Builders Transport. Gulf Insurance Company, one of the insurers that provided excess coverage for Builders Transport, attended this mediation session. At the mediation session, McDole argued that the future costs to care for Johnson would be in the range of $2.5 million. McDole argued that Johnson’s past, present, and future lost wages totaled $355,000 and that his medical bills totaled approximately $85,400.

As a result of the mediation, McDole and Builders Transport entered into a settlement agreement pursuant to which Builders Transport agreed to pay $750,000. Gulf Insurance Company provided the funds for this settlement. In its order approving the settlement, the trial court noted that the settlement agreement entered into by McDole and Builders Transport was limited to

“[McDole’s] release and discharge of the defendants named herein and the parties released in the separate Settlement Agreement and Release referenced above and that this settlement and Order shall in no way affect [McDole’s] rights to proceed with any claims against Johnson’s uninsured motorist carrier, Alfa Mutual Insurance Company, and/or Reliance Insurance Company, its predecessors or affiliated companies, and the South Carolina Guaranty Fund.”

In August 2002, McDole filed a second amended complaint, asserting additional claims and/or clarifying the claims previously asserted against Alfa. She alleged that Alfa had breached the insurance contracts it had issued to Johnson by refusing to pay him uninsured-motorist benefits; that Alfa was guilty of the tort of outrage; and that Alfa was guilty of bad faith in refusing to pay the uninsured-motorist claim. That same month, Alfa filed an action seeking a declaration of the rights and responsibilities of the parties under the automobile-insurance policies it had issued to Johnson. Alfa’s declaratory-judgment action was consolidated with McDole’s action.

Alfa again filed a motion to dismiss McDole’s claims, arguing that McDole had failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. The trial court granted Alfa’s motion. McDole appeals; we affirm.

Standard of Review

We apply the following standard of review to an appeal from a trial court’s dismissal for failure to state a claim upon which relief could be granted:

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Discussion

If, under any set of facts, McDole can support her claims of breach of contract, the tort of outrage, or bad-faith refusal to pay uninsured-motorist benefits, the trial court erred in granting Alfa’s motion and dismissing McDole’s complaint; Thus, we must examine each of those claims separately.

Breach-of-Contract Claim

In its order dismissing McDole’s claims against Alfa, the trial court found that Alfa was not required to pay uninsured/underinsured-motorist benefits under the automobile-insurance policies issued to Johnson because Builders Transport was not uninsured or underin-sured as those terms are defined in § 32-7-23, Ala.Code 1975. On appeal, McDole argues that she is entitled to recover the uninsured-motorist benefits under the Alfa insurance policies because, she argues, Builders Transport had no funds with which to pay its self-insurer’s retention and deductible and was therefore “uninsured” under the provisions of § 32-7-23, Ala.Code 1975, known as Alabama’s Uninsured Motorist Statute. That statute provides, in pertinent part:

“(b) The term ‘uninsured motor vehicle’ shall include, but is not limited to, motor vehicles with respect to which:
“(1) Neither the owner nor the operator carries bodily injury liability insurance;
“(2) Any applicable policy limits for bodily injury are below the minimum required under Section 32-7-6;[]
“(3) The insurer becomes insolvent after the policy is issued so there is no insurance applicable to, or at the time of, the accident....”

The record establishes that Builders Transport was self-insured at the time of the accident. Thus, Builders Transport carried its own bodily-injury liability insurance, and we cannot apply subsection (b)(1) to Builders Transport to define it as “uninsured.”

Nor can we apply subsection (b)(2) of § 32-7-23 to Builders Transport. According to McDole, Builders Transport had agreed to pay up to the first $2 million in damages. Thus, according to McDole, the “policy limits” issued by Builders Transport — $2 million — clearly exceed the minimum policy limits required for bodily injury in § 32-7-6, Ala.Code 1975.

Finally, we are unable to apply subsection (b)(3) of § 32-7-23 to find that Builders Transport was “uninsured” for purposes of Brown’s November 1, 1997, accident with Johnson. McDole argues that because Builders Transport filed a petition in bankruptcy after the accident, Builders Transport has no funds with which to cover the damages McDole is claiming. However, the briefs McDole filed with this Court fail to mention the fact that Gulf Insurance Company, another excess-insurance carrier for Builders Transport, paid funds on behalf of Builders Transport to settle all claims McDole asserted against Builders Transport as a result of Brown’s accident with Johnson. Although the amount she received as a result of the settlement may not have been the full amount McDole believed Builders Transport was liable for, McDole voluntarily entered into the settlement agreement and accepted the amount agreed upon.

We find this situation to be similar to the one presented in Knowles v. State Fawn Mutual Automobile Insurance Co., 781 So.2d 211 (Ala.2000). In that case, Knowles was injured during a hayride being held at Woodmen of the World Lodge #3854. Joseph Dodd was driving the truck in which Knowles was riding when he was injured. As a result of his injuries, Knowles sued Woodmen of the World Life Insurance Society (‘Woodmen”) and Dodd, as an agent of Woodmen. Knowles also sued his own automobile liability insurer, seeking uninsured- and underinsured-mo-torist coverage.

Because Dodd was a volunteer for a nonprofit organization, the trial court entered a summary judgment for him pursuant to the Alabama Volunteer Service Act, § 6-5-336, Ala.Code 1975. Knowles and Woodmen subsequently agreed to mediate, and during the mediation Knowles agreed to a full settlement of his claims against Woodmen in exchange for $32,500.

State Farm, Knowles’s own liability insurer, moved for a summary judgment, arguing that Knowles was not entitled to uninsured- or underinsured-motorist benefits from State Farm because Knowles had accepted a settlement of insurance proceeds from Woodmen’s insurance carrier in the amount of $32,500 on a policy with a liability limit of $1 million. State Farm asserted that Knowles’s settlement established (1) that Dodd was not an “uninsured motorist”; (2) that Knowles had not established that his damages exceeded the $1 million limit of liability provided by Woodmen’s insurance carrier, which was required in order to recover underinsured-motorist benefits; and (3) that Knowles had not exhausted Woodmen’s insurance policy limits and was therefore not entitled to underinsured-motorist benefits. The trial court agreed and entered a summary judgment for State Farm.

On appeal, the Alabama Supreme Court stated:

“Knowles accepted a $32,500 pro tanto settlement from Woodmen of the World, which was insured for $1 million by Scottsdale Insurance Company. State Farm argues that by accepting that amount in settlement and by consenting to the entry of a summary judgment for Dodd on the basis of the Volunteer Service Act, Knowles necessarily agreed that there was a respondeat superior relationship between Dodd and Woodmen. Knowles argues that he is entitled to uninsured-motorist benefits under his State Farm policy because, given the application of the Volunteer Service Act, he cannot recover damages from Dodd. The fact that Knowles could not recover damages from Dodd, because of the application of the Volunteer Service Act, would, standing alone, suggest that he might be entitled to benefits under the uninsured-motorist provisions of the State Farm policy. However, we have before us the additional fact that Knowles settled his claim against Woodmen for $32,500. It follows that if Dodd was an agent of Woodmen, and Knowles accepted $32,500 from Woodmen’s liability-insurance carrier, $32,500 out of $1 million in available insurance proceeds, then State Farm would have had no obligation to pay uninsured- or underin-sured-motorist benefits. Isler v. Federated Guar. Mut. Ins. Co., 594 So.2d 37, 39-40 (Ala.1991).”

Knowles, 781 So.2d at 214 (some citations omitted).

As in Knowles, it follows that if Brown was acting as an agent of Builders Transport, and McDole accepted $750,000 from Builders Transport’s liability insurer, then neither Brown nor Builders Transport was uninsured for purposes of the November 1, 1997, accident. McDole cannot recover $750,000 in liability damages from one of Builders Transport’s insurers and, at the same time, claim that Builders Transport’s bankruptcy resulted in no insurance proceeds being available to McDole. Builders Transport’s bankruptcy might have resulted in a reduced recovery for McDole, but it did not result in the complete unavailability of insurance proceeds. Therefore, we cannot say that Builders Transport’s bankruptcy proceeding resulted in there being “no insurance applicable to, or at the time of, the accident.” § 32—7—23(b)(3), Ala. Code 1975 (emphasis added).

Accordingly, under the specific facts of this case, the vehicle owned by and insured by Builders Transport was not an “uninsured motor vehicle” within the meaning of § 32 — 7—23(b)(3), Ala.Code 1975, and Builders Transport was not “uninsured.” Because McDole received $750,000 from Builders Transport’s insurer as damages for the injuries Johnson sustained in the November 1, 1997, accident, McDole cannot establish that Builders Transport was uninsured for purposes of that accident. Therefore, McDole cannot establish that she is entitled to uninsured-motorist benefits under the policies issued by Alfa, and McDole cannot establish that Alfa breached the contract of insurance by denying McDole’s claim for uninsured-motorist benefits. Alfa’s motion to dismiss was properly granted as to McDole’s breach-of-contract claim.

Tort-of-Outrage Claim

In American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980), this Court recognized that

“one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress ... must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme.... By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”

In Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833 (Ala.2003), this Court held that the plaintiffs tort-of-outrage claim had been improperly submitted to the jury because the defendant in that case had acted within its right and the defendant’s actions had not been accompanied with the “sound of fury.” Id. at 840 (quoting Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1387 (Ala.1986)).

As in Smitherman, the conduct alleged in this case does not even approximate the tort of outrage. In her second amended complaint, McDole alleged that Alfa’s “steadfast refusal to pay the claimed [uninsured-motorist] benefits in light of all the evidence available to [Alfa] constituted outrageous, malicious, and oppressive conduct on the part of [Alfa] and exhibited wanton and reckless disregard to the probability of causing severe emotional distress to [McDole].” However, we have already concluded that McDole is not entitled to uninsured-motorist coverage under the automobile-insurance policies issued to Johnson by Alfa. Thus, we cannot describe Alfa’s denial of McDole’s claim for those benefits as outrageous or extreme. We also note that McDole’s complaint does not allege that Alfa took any malicious or oppressive actions in denying McDole’s claim for benefits. We simply cannot find any allegations in McDole’s complaint that would support her tort-of-outrage claim. As the Court noted in Smitherman:

“ ‘[I]t tuould be intolerable in a civilized society to hold that an employer is guilty of outrageous conduct for merely discharging an employee at will. That is what the plaintiff is asking this Court to do, for the termination is not for a reason which contravenes public policy, and there is no evidence that the termination was accompanied with the sound of jury.’

Smitherman, 872 So.2d at 840 (quoting Hatrell v. Reynolds Metals Co., 495 So.2d at 1387). The same could be said of an insurer’s merely denying a claim. Alfa acted within its rights; there is no evidence indicating that its denial of McDole’s claim was accompanied with the “sound of fury.” McDole’s tort-of-outrage claim was properly dismissed.

Badr-Faith-Failure-to-Pay Claim

McDole’s complaint also alleges that Alfa acted in bad faith when it refused to pay McDole’s claim for uninsured-motorist benefits. However, as we have already concluded, McDole’s breach-of-contract claim fails as a matter of law. As a result, her claim alleging a bad-faith refusal to pay an insurance claim also fails as a matter of law. See National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982) (an essential element of a claim alleging a bad-faith refusal to pay is that the insurer has breached the insurance contract); and National Sav. Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala.1982) (the proof offered by a plaintiff in a bad-faith-refusal-to-pay-an-insurance-claim action must include proof that the plaintiff is entitled to recover as a matter of law under the insurance contract). Accordingly, the trial court properly dismissed McDole’s bad-faith-refusal-to-pay claim.

Conclusion

Because as a result of the settlement agreement McDole recovered insurance benefits from Builders Transport, Builders Transport was not “uninsured” within the meaning of § 32-7-23, Ala.Code 1975. Because Builders Transport was not uninsured for purposes of the accident between Brown and Johnson on November 1, 1997, we see no possible way McDole could recover against Alfa on her breach-of-contract claim or her claim alleging bad-faith failure to pay uninsured-motorist benefits. We have also concluded that McDole cannot establish any set of facts that, even if true, state a cause of action for the tort of outrage under Alabama law. Therefore, the trial court correctly dismissed McDole’s claims against Alfa; its judgment is affirmed.

AFFIRMED.

MOORE, C.J., and SEE and BROWN, JJ., concur.

HARWOOD, J., concurs in the result.

      . The record does not indicate the exact date Builders Transport filed its petition in bankruptcy.

      . McDole filed an amended complaint on July 22, 2002; the amended complaint stated;
      "Lula McDole has been duly appointed as conservator of George Johnson's estate. Accordingly, all claims in the case are merged in her representative capacity as conservator of his estate. Therefore, any claims for George Johnson individually are hereby voluntarily dismissed by the plaintiff, and the sole remaining plaintiff in this case is Lula McDole as conservator of the estate of George Johnson.”
      All of the substantive claims stated in the original complaint were incorporated by reference into the amended complaint.

      . In this amended complaint, McDole sought only uninsured-motorist benefits; she did not seek underinsured-motorist benefits.

      .As noted above, McDole does not assert a right to nnderinsured-motorist benefits under the Alfa insurance policies; therefore, we need not address that issue.

      .The policy limits effective June 1, 2000, can be found at § 32-7-6.1, Ala.Code 1975.

      .See note 5.


text:
    Bobby LOVE v. FLEETWAY AIR FREIGHT & DELIVERY SERVICE, L.L.C., et al.
    1021094.
    Supreme Court of Alabama.
    Aug. 22, 2003.

      David A. Jones and Joseph W. Lewis, Dothan, for appellant.
    J. Vincent Edge of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for appellees.
   STUART, Justice.

Bobby Love appeals from a summary judgment entered in favor of Fleetway Air Freight & Delivery Service, L.L.C. (“Fleetway”), James M. Adkinson, and Billy J. Fuller by the Houston Circuit Court. We reverse and remand.

Facts

On August 26, 1999, Adkinson, Fuller, and Love formed Fleetway, a limited liability company, by filing articles of organization with the judge of probate of Houston County. Adkinson, Fuller, and Love were the only members of the limited liability company. The articles of organization identified Love as the initial managing member of Fleetway. On that same date, Adkinson, Fuller, and Love entered into a contractual agreement entitled “Operating Agreement of Fleetway Air Freight & Delivery Service, L.L.C.,” which set forth the rights, duties, and relationships of the members and set forth the manner in which Fleetway’s business would be conducted. This operating agreement defined certain pertinent terms and addressed, among other things, such matters as capital contributions by the members, allocations and distributions to the members, memberships and dispositions of interests, the management of the company, and the procedure for dissolving, liquidating, and terminating Fleetway. An exhibit attached to the operating agreement provided that each member had contributed $1,000 in capital to Fleetway and that each member was credited with one unit of membership interest in Fleetway.

On September 7, 1999, Adkinson, Fuller, and Love entered into another agreement, entitled “Member’s Agreement,” which contained additional restrictions and obligations. In the member’s agreement, Ad-kinson, Fuller, and Love agreed as follows:

“(1) In the event that any Member should withdraw or retire from the Company during the thirty-six (36) month period following the date set forth below, and/or in the event that Member, Bobby N. Love, should withdraw or retire from employment with the Company during the thirty-six (36) month period following the date set forth below, said withdrawing Member’s right, title and interest in the Company and in the assets of the Company shall be forfeited in equal shares to the continuing Members and the continuing members shall continue the business of the Company under its present name by themselves and shall pay to the withdrawing member the sum of One Hundred Dollars and No Cents ($100.00) for his interest in the Company.
“(2) In the event that any Member should withdraw or retire from the Company during the thirty-six (36) month period following' the date set forth below, and/or in the event that Member, Bobby N. Love, should withdraw or retire from employment with the Company during the thirty-six (36) month period following the date set forth below, such withdrawing member shall thereby give up all of his right, title, and interest in the Company and in the assets of the Company. In consideration for such, the continuing Members shall take the appropriate measures necessary to release the withdrawing Member from any further personal liability in regard to the debts of the Company or any debts made for the benefit of the Company, and shall indemnify and hold the withdrawing Member harmless therefrom.”

In July 2000, Adkinson and Fuller, who were dissatisfied with the manner in which Love was managing Fleetway, decided that Love should be dismissed as manager effective July 31, 2000. Adkinson advised Love of their decision. On August 9, 2000, Adkinson sent Love written confirmation of his dismissal as manager of Fleetway. Adkinson and Fuller assert that they orally advised Love that pursuant to the member’s agreement he was entitled to $100 for his interest in Fleetway and to be released from further liability for Fleet-way’s debts. Fleetway, Adkinson, and Fuller apparently are contending that Love’s dismissal constituted his withdrawal from Fleetway and that, therefore, he was entitled to nothing more for his membership interest.

Love refused the terms offered by Ad-kinson and Fuller. He denied that he had withdrawn from Fleetway or that he had forfeited his interest in the company. On August 20, 2002, Love sued Fleetway, Ad-kinson, and Fuller in the Houston Circuit Court. In his complaint, Love asserted that Fleetway, Adkinson, and Fuller had breached the operating agreement, converted his income from Fleetway, and committed fraud by representing to him, or causing to be represented to him, in October 2000 that he continued to enjoy the same membership rights as did Adkin-son and Fuller.

Fleetway, Adkinson, and Fuller moved for a summary judgment. They asserted that Love effectively withdrew from Fleet-way when he was dismissed as manager and that the terms of the member’s agreement and the operating agreement resolved all of Love’s claims in their favor, as a matter of law.

Love opposed this motion, submitting his own affidavit, the affidavit of certified public accountant Janet M. Kelley, and a copy of correspondence from an attorney for Fleetway, Adkinson, and Fuller. In his own affidavit, Love stated that he did not withdraw from Fleetway, but that his employment with Fleetway had been terminated by Adkinson and Fuller. Love also stated that on October 4, 2000, after Love had been dismissed as manager, an attorney for Adkinson and Fuller wrote Love’s attorney and indicated that Love continued to- be a member of Fleetway. Love asserted that he relied on the statement to that effect when he personally guaranteed a loan taken out by Fleetway in the following year. Love also stated in his affidavit that on February 9, 2002, Adkinson signed a federal tax return reflecting partnership income (a Form 1065) for the tax year 2001 indicating that Love had received in excess of $31,000 in income from Fleetway. Love alleges that although he had requested that Fleetway, Adkinson, and Fuller pay him that amount in income for 2001, he says he never received it. Love asserts that he incurred a tax liability for the partnership income attributed to him by Adkinson on the 2001 return.

Kelly asserted in her affidavit that she prepared Love’s tax returns for the year 2001. She also asserted that Love received from Fleetway a Form 1065 with a Schedule K-l attached for the tax year 2001 indicating that Love had received over $31,000 in income as a member of that company. Kelly asserted that Love incurred a tax liability as a result of the income attributed to him on that return.

Finally, Love filed a copy of an October 4, 2000, letter to Love’s attorney from Adkinson and Fuller’s attorney. That letter states, in pertinent part:

“The other Members of the company recognize that Mr. Love remains a Member of the company subject to the same rights, responsibilities, duties, and obligations that they have in regard to [Fleetway], and have no problem with his continuing in such position. However, if Mr. Love wishes to withdraw from the company....”

On March 12, 2003, the trial court granted the summary-judgment motion filed by Fleetway, Adkinson, and Fuller. Love appeals.

Standard of Review

In American Liberty Insurance Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002), this Court stated the applicable standard of review governing an appeal from a trial court’s ruling on a motion for summary judgment:

“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ “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 non-movant 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.’ ”

825 So.2d at 790 (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted in American Liberty Ins. Co.)).

Discussion

To determine whether the summary-judgment was proper, we must determine whether Fleetway, Adkinson, and Fuller presented substantial evidence that Love’s dismissal as manager was a withdrawal from Fleetway and whether any other genuine issue of material fact exists. In order to make this determination, we must review de novo the evidence presented to the trial court and we must construe the language of the operating agreement and the member’s agreement together. See K & C Dev. Corp. v. AmSouth Bank, 597 So.2d 671, 674 (Ala.1992) (recognizing that documents need not be executed contemporaneously in order to be construed together, so long as they refer to one another).

Love argues that the term “withdraw,” as it is used in the member’s agreement, requires a volitional act on the part of the withdrawing member. He asserts that he did not act voluntarily, but rather, that his employment was terminated against his wishes by Adkinson and Fuller. Therefore, he argues, he did not withdraw from membership in the limited liability company, and he continues to be a member of Fleetway with all the rights, responsibilities, and privileges of a member. He submitted affidavit testimony to this effect to the trial court.

Love also argues that Adkinson and Fuller continued to recognize him as a member of Fleetway after they terminated his employment as its manager. In support of this argument, he relies upon the October 4, 2000, letter from Adkinson and Fuller’s attorney, in which the attorney states that Adkinson and Fuller recognized that Love continued to be a member of Fleetway. Love also relies on the affidavit of Janet Kelly, who testified that Love received the Form 1065 and Schedule K-l for the tax year 2001 from Fleetway indicating that in that year Adkinson and Fuller attributed to Love over $31,000 in income as a member of Fleetway. Love claims that although Fleetway, Adkinson, and Fuller had attributed this income to him on the Form 1065, they refused to pay him the amount they had attributed.

Fleetway, Adkinson, and Fuller argue that the termination of Love’s employment as the managing member of Fleet-way constituted a “withdrawal” of Love’s membership in Fleetway. They further assert that because he “withdrew” from Fleetway, Love forfeited his membership interest and that, under the terms of the member’s agreement, he is entitled to receive for his membership interest only $100 and a release for future liability.

In further support of their motion, Fleetway, Adkinson, and Fuller assert that the language of the operating agreement clearly establishes that the term “withdraw” is used in the context of an involuntary act and not a voluntary one. They specifically rely upon the definition of “withdrawing member” in Article 1 of the operating agreement, which provides that the term “ ‘Withdrawing Member’ has the meaning given that term in Paragraph 5.03(b).” However, Paragraph 5.03(b) does not define “withdrawing member” or “withdraw.” Paragraph 5.03(b), entitled “Involuntary Transfers,” addresses transfers of membership interests in the context of the death, incompetency, bankruptcy, withdrawal, or dissolution of a member. In each of those situations, the operating agreement refers to the member as a “withdrawing member.” Fleetway, Adkin-son, and Fuller argue that in each of those situations, the withdrawal of the member is an involuntary act rather than a voluntary one. They argue that there is not a single instance in the member’s agreement or in the operating agreement in which “withdrawal” from membership in the limited liability company is described as a voluntary action. Thus, they argue, a withdrawal, within the meaning of the operating agreement, is an involuntary act and their termination of Love’s employment as manager acted as a withdrawal.

Fleetway, Adkinson, and Fuller also rely upon paragraph 5.08 of the operating agreement. That paragraph provides that “[a] Member does not have the right or power to withdraw from the Company as a Member.” They argue that this paragraph also supports their position that withdrawal is an involuntary act.

We disagree with the interpretation Fleetway, Adkinson, and Fuller give the term “withdraw” and “withdrawal.” We first note that the most appropriate definition of “withdraw” contained in Merriam-Webster’s Collegiate Dictionary (11th ed.2003) for this case is “to remove oneself from participation.” Thus, unless defined otherwise in the parties’ agreements, the act of withdrawal is usually considered to be a voluntary act.

We find nothing in the member’s agreement or'in the operating agreement that persuades us to give the terms “withdraw” and “withdrawing member” anything other than their ordinary and usual meanings. See Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122 (Ala.2002) (recognizing that when there is no indication that the terms of a contract are used in a special or technical sense, the terms will be given their ordinary, plain, and natural meaning). As Love correctly argues, paragraph 5.03(b) lists those events at the occurrence of which the withdrawing member is restricted from making a voluntary transfer of his membership interest. Therefore, those events are grouped together under “involuntary transfers.” The mere fact that a member’s withdrawal is mentioned under a paragraph of an agreement entitled “Involuntary Transfers” does not convert the voluntary act of withdrawing into an involuntary act. In such a situation it is the transferring of the membership interest that is involuntary, not the withdrawal.

Further, construing the member’s agreement and the operating agreement together, we conclude that paragraph 5.08 of the operating agreement, which purports to prohibit a member from withdrawing from the limited liability company, conflicts with the member’s agreement, which imposes certain restrictions and obligations upon any member who, in fact, withdraws. The member’s agreement was executed after the operating agreement, and the members agreed that the provisions of the member’s agreement took priority over any provisions of the operating agreement that were determined to be conflicting. Thus, by executing the member’s agreement, the members agreed that withdrawal from Fleetway was an option that could be exercised by a member, thereby voiding paragraph 5.08 of the operating agreement.

Finally, reviewing the evidence presented, we cannot say that Fleetway, Adkinson, and Fuller have met the burden required of them under Rule 56, Ala. R. Civ. P., to establish that no genuine issue of material fact exists in this case. They have not established by substantial evidence that Love withdrew from Fleetway. The record contains no response from Fleetway, Adkinson, and Fuller to Love’s evidence regarding the income he alleges Fleetway, Adkinson, and Fuller attributed to him in 2001; Fleetway, Adkinson, and Fuller did not respond to Love’s testimony that he guaranteed a loan for Fleetway in 2001 in reliance on their attorney’s October 2000 representation that he continued as a member in Fleetway.

We conclude that Fleetway, Adkinson, and Fuller were not entitled to a judgment as a matter of law on Love’s claims alleging breach of contract, conversion, or fraud. We reverse the summary judgment and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Fleetway, Adkinson, and Fuller made no other argument in support of their summary-judgment motion.

      . Merriam-Webster’s Collegiate Dictionary (11th ed.2003) lists the following definitions for the word "withdraw”:

        vt la: to take back or away: REMOVE ... b: to remove from use or cultivation c: to remove (money) from a place of deposit d: to turn away (as the eyes) from an object of attention ... e: to draw (as a curtain) back or aside 2a: to remove from consideration or set outside a group ... b(l): TAKE BACK, RETRACT (2): to recall or remove (a motion) under parliamentary procedure ~vi la: to move back or away: RETIRE b: to draw back from a battlefield: RETREAT 2a: to remove oneself from participation b: to become socially or emotionally detached ... 3: to recall a motion under parliamentary procedure.”

      . Paragraph 5.08 provides: "Withdrawal. A Member does not have the right or power to withdraw from the Company as a Member.”

      . See paragraph (4) of the member's agreement: “All other terms and conditions of the August 26, 1999, Operating Agreement of [Fleetway], not inconsistent herewith shall remain in full force and effect."


text:
    Burt W. BALENTINE, as a dependent of Elizabeth Balentine, deceased v. REYNOLDS METALS COMPANY and Alcoa, Inc.
    1011598.
    Supreme Court of Alabama.
    Aug. 29, 2003.
    G. Rick Hall of Almon, McAlister, Bac-cus, Hall & Kelley, L.L.C., Tuscumbia, for appellant.
    William F. Gardner and W. Kenneth Thomas of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham; and J. Michael Tanner of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellees.
   JOHNSTONE, Justice.

The trial court entered summary judgment in favor of the appellees Reynolds Metals Company and Alcoa, Inc., solely on the basis of the opinion by the Court of Civil Appeals in Weaver v. Kimberly-Clark Corp., 871 So.2d 814 (Ala.Civ.App.2001). We reversed that decision in Ex parte Weaver, 871 So.2d 820 (Ala.2003). Relying on Weaver (not Ex parte Weaver), the appellees now before us admit, and indeed insist, at pages ii and 42-51 of their brief, that “the material facts of the decision in Weaver are indistinguishable from the facts of the present case.” We therefore reverse the summary judgment in favor of Reynolds Metals and Alcoa and remand the cause for further proceedings. t

REVERSED AND REMANDED.

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


text:
    LANIER WORLDWIDE, INC. v. Kim CLOUSE, individually, and d/b/a Southern Printing.
    1011194.
    Supreme Court of Alabama.
    Aug. 29, 2003.

      Roger L. Bates of Hand Arendall, L.L.C., Birmingham; and Joseph D. War-go of Duane Morris LLP, Atlanta, Georgia, for appellant.
   JOHNSTONE, Justice.

Lanier Worldwide, Inc., (sometimes hereinafter, “Lanier”) appeals the order of the trial court denying its motion to compel Kim Clouse, individually, and d/b/a Southern Printing to arbitrate her claims against Lanier. We reverse and remand.

Clouse, d/b/a Southern Printing, financed the lease of a Lanier copier with Green Tree Vendor Services Corporation, now Wells Fargo Financial Leasing, Inc. The lease agreement names the lessor as Green Tree at its 95 Route 17 So., Para-mus, New Jersey address; the lessee as Southern Printing at a 1606 Alabama Ave., Jasper, Alabama address; and the vendor of the copier as Lanier Worldwide at its 3535 Grandview Parkway, Suite 150, Birmingham, Alabama address. Pursuant to the tripartite agreement, Lanier “shipped the [copier] across state lines to deliver it to Southern Printing in Alabama” and installed the copier at Southern Printing.

Clouse, d/b/a Southern Printing, executed an “ORDER AGREEMENT” for service by Lanier on specified parts of the leased copier. Near the top of the “Order Agreement” appears the statement, “AGREEMENT CONSISTS OF THIS PAGE AND THE GENERAL TERMS AND CONDITIONS ATTACHED AND THE PAGE OF SPECIFIC TERMS AND CONDITIONS CHECKED ABOVE.” (Emphasis added.) Arrayed above this sentence are these document names, apparently for the “SPECIFIC TERMS AND CONDITIONS”: “PURCHASE SECURITY AGREEMENT,” “LEASE AGREEMENT,” “SALES AGREEMENT,” “RENTAL AGREEMENT ,” “SUPPLY SALE,” AND “GMA.” At the left side of each document name is a square for a checkmark, apparently to be entered if the particular document is used in the transaction. The “GENERAL TERMS AND CONDITIONS” are printed on the back of the Order Agreement form, but not one of the document names for the “SPECIFIC TERMS AND CONDITIONS” is checked on the Order Agreement signed by Clouse. However, near the bottom of the Order Agreement, immediately above the places for the parties’ respective signatures, appears the following:

“GENERAL MAINTENANCE AGREEMENT/ON-LINE CONTRACT
“Toner & Service Inclusive [ (handwritten notation) ]
“CUSTOMER ACKNOWLEDGES BY INITIALING BELOW THAT THE GMA AND/OR ON-LINE CONTRACT HAS BEEN FULLY EXPLAINED AND OFFERED, kc [ (handwritten initials) ] INITIALS
“CUSTOMER ACKNOWLEDGES PER COPY CHARGE OF .185 Full Color ,02 B & W [ (handwritten entry) ] IN EXCESS OF 0 [ (handwritten entry) ] COPIES PER month [ (handwritten entry) ]. INITIALS kc [ (handwritten initials) ]”

At the bottom of the Order Agreement, and to the left of the “CUSTOMER SIGNATURE (INDIVIDUAL)” line where Clouse signed her name, the following appears:

The Order Agreement is not signed by Lanier.

The “GENERAL TERMS AND CONDITIONS” printed on the back of the Order Agreement state, in pertinent part:

“1. LANIER ACCEPTANCE. This Agreement is subject to approval by La-nier at Lanier’s Home Office in Atlanta, Georgia. Written confirmation indicating acceptance will be mailed to Customer by Lanier. In the event this Agreement is not accepted by Lanier, any funds deposited by Customer shall be refunded and Customer will immediately surrender any Equipment which has been delivered. In no event shall the deposit by Lanier of checks or other instruments tendered by Customer in connection herewith constitute acceptance of this Agreement.
“5. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement or the breach hereof, including any claim upon or arising from an alleged tort, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any remedy that would be available from a court of law or equity shall be available from the arbitrator(s). The arbitration hearing and all proceedings in connection therewith shall take place in Atlanta, Georgia. The arbitration hearing shall be commenced within (90) days of the filing of a Demand for Arbitration by either party, and the award shall be rendered within thirty (30) days of the conclusion of such hearing.”

(Emphasis added.)

Clouse sued Lanier and Wells Fargo Financial Leasing, Inc., for breach of implied warranty of merchantability, fraudulent misrepresentation and suppression, and conspiracy. She alleged in her complaint that she had entered a “maintenance agreement” with Lanier.

Lanier moved to compel Clouse to arbitrate her claims against Lanier. It supported its motion with a brief and eviden-tiary materials. By affidavit Lanier swore that, pursuant to the Order Agreement, Lanier had entered a “General Maintenance Agreement” with Clouse, d/b/a Southern Printing, that Lanier had shipped the copier across state lines to Southern Printing, that Lanier had provided maintenance services to Southern Printing for 20 months, and that Lanier had mailed Southern Printing written invoices for these services from Atlanta, Georgia for those 20 months. Lanier attached to the affidavit copies of the Order Agreement, the General Terms and Conditions, and other documents.

Clouse submitted a brief and evidentiary materials in opposition to the motion to compel arbitration. Clouse did not deny that Lanier had delivered the copier across state lines, that Lanier had provided the services for 20 months, or that Lanier had invoiced Clouse monthly from Atlanta for the 20 months of service. Rather, she contended that, because Lanier did not sign the Order Agreement or mail Clouse “[wjritten confirmation indicating acceptance” of the Order Agreement as its terms require for Lanier to have accepted the Order Agreement, Lanier never accepted the Order Agreement, which contained the arbitration provisions. Clouse contended, therefore, that the absence of acceptance by Lanier prevented the formation of a contract and thereby rendered the arbitration provisions unenforceable. After a hearing, the trial court denied the motion to compel arbitration.

On appeal, Lanier contends, as it did before the trial court, that the invoices Lanier mailed Clouse for the services La-nier provided pursuant to the Order Agreement constituted the “[wjritten confirmation indicating acceptance” required by the Order Agreement. Lanier further contends, as it did before the trial court, that the performance by Lanier manifested its acceptance and that Clouse’s signature on the Order Agreement and her acceptance of the performance by Lanier both severally bound Clouse to the arbitration provisions in the Order Agreement.

“A motion to compel arbitration is analogous to a motion for a summary judgment. Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102 (Ala.1995); Allstar Homes, Inc. v. Waters, 711 So.2d 924 (Ala.1997). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260 (Ala.1995).”

TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). “[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).

“[Ajrbitration agreements [are] as enforceable as other contracts, but not more so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). “ ‘[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)).

“ ‘When deciding whether parties agreed to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.’ ” Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). “ ‘The courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the interest of the parties.’ ” Blount Int’l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344, 1346 (Ala.1993) (quoting Goldberg v. Bear, Steams & Co., 912 F.2d 1418, 1419-20 (11th Cir.1990)). Accord Modern Woodmen of America v. McElroy, 815 So.2d 520, 526 (Ala.2001).

“This Court has held that the object of a signature on a contract is to show mutuality and assent, and that mutuality and assent can be manifested in ways other than a signature. See Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986); Ex parte Pointer, 714 So.2d 971 (Ala.1997). Unless required by a statute to be in writing, a contract does not have to be signed to be enforceable, so long as it is accepted and acted upon. Tarver, 492 So.2d at 304.
“... ‘The [Federal Arbitration Act] only requires that there be a “written provision” in a “contract;” it does not specify that a party’s assent to the terms of a contract containing an arbitration provision can be evidenced only by that party’s signature.’ Ex parte Rush, 730 So.2d 1175 (Ala.1999). Conduct of one party to a contract from which the other may reasonably draw an inference of assent to an agreement is effective as acceptance. Anderson Brothers Chrysler Plymouth Dodge, Inc. v. Hadley, 720 So.2d 895 (Ala.1998) (the failure of a party to sign a contract on a signature line next to an arbitration provision did not render the provision unenforceable). In addition, it is a general principle of contract law that when a contract is signed by a party or parties ‘to be charged,’ a contract can be enforced where the other party fails to sign the contract. See Anselmo Meat Co. v. Riley, 533 So.2d 552 (Ala.1988).”

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So.2d 8, 11 (Ala.1999).

In this case, the party “to be charged” by enforcement of the contract is Clouse, d/b/a Southern Printing. Clouse does not deny that she signed the Order Agreement containing the arbitration provisions. The performance of services and the monthly invoicing by Lanier evidence its assent to the terms of the Order Agreement. Clouse does not deny that she accepted the services. Thus, the lack of a signature by an agent of Lanier on the Order Agreement does not render the arbitration provisions unenforceable in this case. Kil-gore, supra.

Before the trial court, Clouse relied on Med Center Cars, Inc. v. Smith, 727 So.2d 9 (Ala.1998), and Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891 (Ala.1999), as authority for her contention that the arbitration provisions were unenforceable in the absence of a signature by Lanier on the Order Agreement. On the one hand, each of these precedents did hold that certain arbitration provisions were unenforceable because they had not been signed by the party which later sought enforcement. On the other hand, each of these precedents is distinguishable from the case now before us. The distinction common to both precedents is that, in each, the performance by the party which sought enforcement of the arbitration provisions was attributable to a different and distinct contract that did not contain or incorporate the arbitration provisions. Thus, the party which sought enforcement of the arbitration provisions in Med Center Cars, supra, apparently did not even argue that its performance evidenced acceptance of the terms of the document containing the arbitration provisions; and the party which sought enforcement in Premiere Chevrolet, supra, could not validly argue that its performance evidenced acceptance of the terms of the document containing the arbitration provisions, since that document did not provide for any obligations that party could have been performing.

In the case now before us, the performance by Lanier is attributable to the Order Agreement, the very document which contains the arbitration provisions. Therefore, the performance by Lanier can and does evidence its acceptance, and neither Med Center Cars nor Premiere Chevrolet avails Clouse to the contrary.

Virtually all features of the transaction and contract apparent from the record in the case now before us were interstate commerce. Therefore, a fortiori, the transaction and contract “involved commerce” within the meaning of § 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and therefore fulfilled this criterion of the FAA for its applicability to the transaction and the contract. Lanier proved that Lanier and Clouse, d/b/a Southern Printing, formed a contract “calling for arbitration.” TranSouth Fin. Corp., 739 So.2d at 1114. Therefore, the trial court erred in denying the motion to compel arbitration filed by Lanier. We reverse the order entered by the trial court and remand this cause for entry of an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Wells Fargo is not a party to this appeal.

      . Clouse did not defend the trial court or assist this Court by filing a brief here.