author: KING, P.J., for the court. SOUTHWICK, P.J.,

text:
    Willie BOWIE, Individually and on Behalf of the Heirs at Law of Lois Brown, Deceased, Appellant, v. MONTFORT JONES MEMORIAL HOSPITAL; Kosciusko Medical Clinic; Perry Lishman, M.D.; Gary Holdiness, M.D.; Richard Carter, M.D.; and Timothy Alford, M.D., Appellees.
    No. 2001-CA-01045-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2002.
    Rehearing Denied Jan. 21, 2003.

      Isaac K. Byrd, Jr., Katrina M. Bibb Gibbs, Ramel Lemar Cotton, Jackson, attorneys for appellant.
    Stephen P. Kruger, George Quinn Evans, Heber S. Simmons, III, Lynda Clower Carter, Tina Lorraine Nicholson, Jackson, attorneys for appellees.
   KING, P.J., for the court.

¶ 1. Willie Bowie appeals the grant of summary judgment to Montfort Jones and the other appellees by the Circuit Court of Attala County. Finding the grant of summary judgment to have been improper, this Court reverses and remands.

STATEMENT OF FACTS

¶ 2. On June 13,1998, Lois Brown, sixty-seven years of age, was brought to Mont-fort Jones Memorial Hospital by ambulance suffering the aftereffects of a seizure. It was noted at admittance that Mrs. Brown had a history of alcohol-induced seizures and that her blood alcohol content was .19%. Mrs. Brown had a four-inch laceration on her scalp that had been stapled closed. Mrs. Brown had apparently been consuming both beer and whisky at her home which had no air-conditioning on a day when the heat index in Kosciusko reached 110 degrees Fahrenheit. After a CT scan, it was also noted that Mrs. Brown had a “bur hole” in her left temple which had resulted from a past cranioto-my.

¶ 3. Mrs. Brown’s condition showed improvement over the next two days,. However on June 16th, Mrs. Brown’s condition began to deteriorate. Throughout the evening of the sixteenth and the early morning hours of the seventeenth, Mrs. Brown became increasingly unresponsive. Mrs. Brown died on June 17, 1998. The cause, of death was determined to be a cerebral hemorrhage which caused both heart and lung failure.

¶ 4. On November 24, 1999, Willie Bowie, individually and as representative of Mrs. Brown’s heirs, filed suit against Montfort Jones Memorial Hospital, Kosciusko Medical Clinic, several physicians, and an unidentified nurse or nurses. The suit alleged that Montfort Jones, the medical clinic, doctors, and nurses were negligent in failing to provide Mrs. Brown with a “nationally recognized minimal” level of care, which caused her death. The defendants’ answer denied any negligence.

¶ 5. On August 16,. 2000, an agreed scheduling order was entered by the trial judge. All discovery, including depositions, was to be completed by March 1, 2001. The plaintiffs were to designate an expert no later than December 31, 2000, and the defendants were to designate experts by January 31, 2001. The order provided that the designation of expert witnesses should include all information required to be disclosed under Mississippi Rule of Civil Procedure 26(b)(4)(A). The order stated the deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.”

¶ 6. No plaintiffs expert was designated by the December 31, 2000 deadline. Montfort Jones designated an expert witness on January 26, 2001. It also adopted as an expert any expert designated by the other defendants. The medical clinic and the physicians designated experts on January 31, 2001.

¶ 7. On the same day it designated an expert, Montfort Jones also filed a motion for summary judgment. The physicians filed a similar motion for summary judgment with their designation of experts. They contended that the alleged negligence in this matter was not of the type “within the practical knowledge and experience of lay persons,” and would require expert testimony. Without an expert, the defendants argued that a prima facie case of medical malpractice could not be made. The medical clinic later filed its own summary judgment motion.

¶ 8. On February 5, 2002, the plaintiffs designated Dr. Obie McNair as an expert witness. The designation stated that Dr. McNair would testify that the defendants did not properly monitor Mrs. Brown, did not administer blood gas tests, did not provide daily electrolytes, and gave Mrs. Brown too much potassium. Dr. McNair would testify that the high level of potassium caused Mrs. Brown’s “cardiac malfunctioning.” On February 28, 2001, the plaintiffs filed an affidavit from Dr. McNair. The affidavit stated that it was Dr. McNair’s opinion “to a reasonable degree of medical [probability], that the death of Mrs. Brown could have been avoided if proper monitoring of her heart and blood chemistries had been ... attended to more closely.”

¶ 9. Motions for summary judgment along with motions to strike the plaintiffs late designation were heard on March 5, 2001. At the hearing, plaintiffs’ counsel submitted a motion for extension of time to designate an expert, seeking a retroactive order permitting the late designation. The circuit judge found the motion for extension of time untimely as it was filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion for Summary Judgment were filed.” The circuit judge noted that the motion claimed the original deadline was not met due to counsel’s attendance at other trials or legal proceedings but that counsel offered no evidence such as calendars to support the claim.

¶ 10. The court found that because the plaintiffs had not designated an expert in compliance with the agreed scheduling order that no prima facie case of medical malpractice could be made against any of the defendants.

¶ 11. The court also found that even if the late-designated expert’s affidavit was accepted despite its tardiness, it was inadequate to defeat a motion for summary judgment.

DISCUSSION

¶ 12. On March 5, 2001, the Attala County Circuit Court granted several motions for summary judgment filed by the various trial court defendants. The trial court gave as the primary reason for its grant of summary judgment the failure of Bowie to timely designate an expert witness.

¶ 13. Then, almost as an afterthought, the trial court held that Bowie’s proffered affidavit was insufficient as a matter of law, and even if accepted would not have altered the grant of summary judgment to the trial defendants.

¶ 14. In rendering its decision on March 5, 2001, the trial court did not have the benefit of Thompson v. Patino, decided by the Mississippi Supreme Court on May 10, 2001, and found at 784 So.2d 220. The facts of Thompson, as stated by Justice Waller, are remarkably similar to Bowie, and bear inclusion in their entirety. They are as follows:

On February 9, 1993, Karin King Thompson underwent neurological surgery at St. Dominic-Jackson Memorial Hospital in Jackson, Mississippi. The surgery was performed by John P. Gó-recki, M.D., with Carlos S. Patino, M.D., serving as anesthesiologist. Following surgery, Thompson’s tongue became severely swollen. As a result, she began experiencing breathing difficulty and went into cardiac arrest. Medical personnel performed an emergency tra-cheostomy. On February 16, 1994, Thompson filed this suit for damages in the Circuit Court of the First Judicial District of Hinds County, Mississippi, alleging medical malpractice and naming Dr. Patino, St. Dominic, and ten unnamed individuals as defendants.
On March 11, 1994, St. Dominic served Thompson with interrogatories and requests for production of documents. On March 15, 1994, Dr. Patino did likewise. One of Dr. Patino’s interrogatories requested that Thompson name the experts whom she intended to call at trial and the substance of the facts and opinions about which the experts were expected to testify.
After Thompson failed to respond to the discovery requests, on May 16, 1994, and June 8, 1994, St. Dominic and Dr. Patino filed motions to compel. On June 17, 1994, the circuit court ordered Thompson to respond to the discovery within 7 days.
On June 24, 1994, Thompson served St. Dominic and Dr. Patino with her responses to their interrogatories. Therein she named Bernard Patrick, M.D., and William Cause, M.D., as expert witnesses but she failed to state what their opinions would be.
On July 14, 1994, Thompson filed a motion for extension of time to conduct discovery. On February 10, 1995, Thompson amended her complaint to add Dr. Górecki as a defendant. By agreed order dated September 25, 1995, the circuit court extended discovery for 90 days.
In September, 1996, Thompson deposed Dr. Górecki.
On October 18, 1996, Thompson requested an additional 60 days of discovery. The trial court denied this request by order dated December 28,1996.
In November, 1996, Thompson’s counsel’s office was destroyed by fire, and her file had to be reconstructed.
On February 5, 1997, Dr. Patino filed a motion to dismiss, or, alternatively, for summary judgment. Prior to the filing of Dr. Patino’s motion, Thompson had not supplemented her responses to interrogatories.
On February 10, 1997, Thompson supplemented her responses to interrogatories to St. Dominic and Dr. Patino, and named for the first time William Wilson, M.D., as an expert in neurosurgery, and Herbert Ferrari, M.D., as an expert in anesthesiology.
On February 14,1997, Dr. Patino filed a motion to strike Thompson’s supplemental responses.
On February 18,1997, Thompson filed her response to Dr. Patino’s motion for summary judgment. On February 21, 1997, Thompson filed Dr. Ferrari’s affidavit wherein he averred that Dr. Patino breached the duty of care owed to Thompson.
In response to Dr. Patino’s motion to strike her supplemental responses, Thompson argued that she had learned additional information during Dr. Go-recki’s deposition that caused the delay-in naming Dr. Wilson and Dr. Ferrari as expert witnesses. On March 24, 1997, the circuit court granted the motion to strike, finding that Thompson has sued Dr. Patino in 1994 and could have proceeded against Dr. Patino no matter what Dr. Górecki said in his deposition. Therefore, awaiting Dr. Gorecki’s deposition was not a legitimate excuse for failure to name her experts as to Dr. Patino. The circuit court found that the supplemental responses were tardy and should be stricken.
On March 31, 1997, Dr. Patino moved to strike Dr. Ferrari’s affidavit. Dr. Patino argued that, because the discovery responses naming Dr. Ferrari as an expert witness had been stricken, Dr. Ferrari could not testify at trial and he could not submit an affidavit opposing summary judgment. By order dated July 10, 1997, the circuit court struck Dr. Ferrari’s affidavit and granted summary judgment for Dr. Patino.
On August 5, 1997, the trial court granted summary judgment as to Dr. Górecki. ■
On August 13, 1997, the trial court granted summary judgment as to St. Dominic.
On appeal, noting that Thompson had filed suit in February, 1994, was given until December, 1995, to complete discovery, and filed the discovery responses pertaining to her expert witnesses in February, 1997, the Court of Appeals found that the circuit court had not abused its discretion in striking the discovery responses and expert affidavit. Thompson v. Patino, No. 97-CA-00971-COA (Miss.Ct.App. May 18, 1999). Furthermore, because Thompson had no expert witnesses or affidavits in support of her claims, the Court of Appeals found that the circuit court did not err in granting summary judgment in favor of the defendants.

Thompson v. Patino, 784 So.2d 220 (¶¶ 4-20) (Miss.2001).

¶ 15. Notwithstanding these facts, our Supreme Court held that absolute and final dismissal, by way of summary judgment, was too draconian a penalty for a discovery violation. The court stated:

The circuit court, in making its ruling, gave a detailed recitation of the events of the case and obviously felt that the failure of Thompson’s counsel was deliberate or at least seriously negligent. Sanctions were appropriate, but the exclusion of medical expert evidence which prompted the dismissal of Thompson’s action amounted to an abuse of discretion under the facts of this case.

Id. at (¶ 25).

¶ 16. In the present case, it may well have been appropriate to impose sanctions for Bowie’s failure to timely designate an expert witness. However, the facts do not justify the ultimate penalty of summary judgment.

¶ 17. In Thompson, the trial judge had declined to even consider the tardy affidavit of the proffered expert. Upon remand he was directed to “impose a less severe sanction” and decide the summary judgment motion after consideration of all responses and affidavits.

¶ 18. In this case the trial court, almost as an after thought, indicated some consideration of the affidavit, stating:

The motion to strike designation of experts is granted. Because there is no expert witnesses now before this court, the motion for summary judgment filed by each of the defendants is granted.
The court also wants to go forward on the record and state that this court has examined the affidavit of Dr. Obie McNair. This court finds that his affidavit is woefully lacking in that it fails to allege duty, breach of duty and causation as to each of the defendants.
Therefore, this court, even if the designation of expert had been properly filed and this testimony was properly before this court, this court would find that is not sufficient proof necessary to defeat a motion for summary judgment.
And that is the order of the court.

¶ 19. The affidavit of Dr. McNair

My name is OBIE McNAIR, M.D., and I am a citizen of Jackson, Mississippi, and fully competent to give this affidavit consisting of three pages.
2.
I am a physician specializing in the area of internal and pulmonary medicine and have been practicing for fifteen years.
3.
I have reviewed the records from Montfort Jones Hospital, and have formed an opinion which is based on my review of the above as well as my training and experience.
4.
During the hospitalization of Ms. Lois Brown from June 13, 1998 thru June 17, 1998, her potassium level was drawn on admission, on June 14 and then not until June 17. During this time she was continuing to have potassium added to her intravenous fluids at the rate of 40 Meq. per 1,000 cc. with an infusion rate of 125cc per hour. Her admission potassium level was 3.5, a low normal value. On June 14th, it was 4.5 and then on the 17th it was 7.7, or critically high.
5.
It is my opinion that the high potassium value caused the peaked T-waves, thus causing a heart arrythemia and also an electrolyte imbalance. The cardiac monitor was checked on 6/14 at 7:00 a.m., 3:00 p.m. and 11:00 p.m. On 6/15 it was checked at 7:00 a.m., 3:00 p.m. On the 16th, it was checked at 7:38 a.m., and then on the 17th at 8:01 a.m. Thus, the heart monitor should have been checked on the 15th at 11:00 p.m. and on the 16th at both 3:00 and 11:00 p.m. Proper heart monitoring could have indicated the cardiac arrythemias. Peaked T-waves were noted by the telemetry nurse.
6.
There was only one Arterial Blood Gas taken on 6/14 at 8:54. Further monitoring would have indicated if she was retaining C02. The PC02 value on that day was 45.5, a high normal value.
7.
Therefore, it is my opinion to a reasonable degree of medical probably,[sic] that the death of Ms. Brown could have been avoided if proper monitoring of her heart and blood chemistries had been monitored and attended to more closely.

¶20. On motion for summary judgment, the movant bears the burden of establishing that no genuine issue of material fact exists. Roebuck v. McDade, 760 So.2d 12(¶12) (Miss.Ct.App.1999). The party moving for summary judgment, “must establish the propriety of relief by the strengths of his own showing....” Davidson v. North Central Parts, Inc., 737 So.2d 1015(¶ 12) (Miss.Ct.App.1998).

¶21. The party against whom summary judgment is sought is accorded the benefit of the doubt. Dailey v. Meth odist Medical Center, 790 So.2d 903(¶ 3) (Miss.Ct.App.2001).

¶ 22. According to Dr. McNair, the heart monitor should have been checked on June 15th at 11:00 p.m., on June 16th at 3:00 p.m. and 11:00 p.m. This clearly infers a duty. The breach of that duty is made clear in the next sentence, when Dr. McNair states, “Proper heart monitoring could have indicated the cardiac arrythemias.” The term “proper,” as defined in the American Heritage Dictionary (3rd ed.) means appropriate or suitable. The failure to provide proper care is a breach of duty.

¶ 23. Dr. McNair concludes his affidavit by stating “the death of Ms. Bowie could have been avoided if proper monitoring of her heart and blood chemistries had been monitored and attended to more closely.” This statement is not a mere inference of causation, but is a declaration of causation. The duty to monitor was an obligation of each of Mrs. Brown’s health care professionals. Dailey v. Methodist Medical Center, 790 So.2d 903(¶ 14) (Miss.Ct.App.2001). That duty, according to Dr. McNair, was not honored.

¶ 24. Summary judgment should only be granted when it is shown that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). There is a genuine issue of fact in this case. That issue is whether the deceased received proper medical care from the defendants. The affidavit of Dr. McNair indicated that the deceased did not receive proper medical care.

¶ 25. Dr. McNair states the facts as taken from the defendants’ records, and then sets forth what should have been done. He also sets forth, again based upon the records of the defendants, what was done. Taken together, those things put before the court the standard of care and the violation of that standard of care.

¶ 26. A summary judgment motion does not substitute for a trial. The summary judgment motion merely decides whether there are issues to resolve. Robinson v. Ratliff, 757 So.2d 1098(¶6) (Miss.Ct.App. 2000). The trial actually resolves the issues. Because Dr. McNair’s affidavit raises a genuine issue of material fact, summary judgment should not have been granted.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEES.

BRIDGES, THOMAS, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., LEE, AND BRANTLEY, JJ.

SOUTHWICK, P.J.,

dissenting:

¶ 28. The majority reverses for two reasons. One is that a recent Supreme Court precedent is said to be remarkably similar regarding a discovery violation. Whatever its similarities or distinctions, I do not address that issue. What is clearer is that the trial court was correct that the plaintiffs failed to present any evidence that an applicable standard of care was violated. The majority calls that basis for judgment only an afterthought. I am not so confident about the order and intensity of the trial judge’s thoughts. The reason is sound and is reviewable by this court in the same fashion regardless of whether it was the first or the last thing that the judge concluded.

¶ 29. On February 5, 2001, at the end of the summary judgment process, the plaintiffs designated Dr. Obie McNair as an expert witness. The designation stated that Dr. McNair would testify that the defendants did not properly monitor Mrs. Brown, did not administer blood gas tests, did not provide daily electrolytes, and gave Mrs. Brown too much potassium. Dr. McNair would testify that the high level of potassium caused Mrs. Brown’s “cardiac malfunctioning.” On February 28, the plaintiffs filed an affidavit from Dr. McNair. The affidavit stated that it was Dr. McNair’s opinion “to a reasonable degree of medical [probability], that the death of Mrs. Brown could have been avoided if proper monitoring of her heart and blood chemistries had been ... attended to more closely.”

¶ 80. Motions for summary judgment along with motions to strike the plaintiffs’ late designation were heard on March 5, 2001. The trial court rejected the McNair affidavit because of its dilatory filing. The court also found that even if the affidavit were accepted, it was inadequate to defeat a motion for summary judgment. I agree with this second argument. What is apparent is that the plaintiffs’ only evidence did not create a dispute of material fact on defendants’ failure to conform to the standard of care. Summary judgment for all defendants was properly entered. I turn to the matter of what the plaintiffs needed but did not present at the time of summary judgment.

¶ 81. The plaintiffs’ response to the defendants’ motions for summary judgment originally consisted of one page with a copy of the designation of expert attached. This was not usable evidence, only pleadings. Three days before the summary judgment hearing, a three-page affidavit from Dr. Obie McNair was submitted. The relevant portion of the affidavit has been quoted in the majority opinion. The trial judge found the affidavit insufficient “to defeat a motion for summary judgment” because it was “woefully lacking in that it fails to allege duty, breach of duty, and causation as to each of the defendants.”

¶ 32. To succeed “in a medical malpractice action, a plaintiff must establish, by expert testimony, the standard of acceptable professional practice; that the defendant physician deviated from that standard; and that the deviation from the standard of acceptable professional practice was the proximate cause of the injury of which plaintiff complains.” Brown v. Baptist Memorial Hospital DeSoto, Inc., 806 So.2d 1131, 1134 (Miss.2002). The Supreme Court has defined the standard of acceptable professional practice for a physician.

Given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment, and options.

Starcher v. Byrne, 687 So.2d 737, 740 (Miss.1997). It is with this definition that I analyze Dr. McNair’s affidavit.

¶ 33. The affidavit does not describe or even mention a standard of acceptable professional practice for any of the four physicians that applied to a patient in Mrs. Brown’s condition. The issue in the case is whether one or more of the defendants breached a relevant standard of care. A claim is not made by some other physician’s conclusion that in hindsight a different result might have occurred if certain additional actions had been taken. Unless a defendant was negligent, i.e., unless the defendant failed to conform to the accepted standard of care, post-hoc explanations of what might have been a better approach do not support a claim for damages.

¶ 34. According to the affidavit’s assertions, Mrs. Brown received too much potassium and more frequent monitoring would have been helpful. Yet there is no allegation that the monitoring that was provided fell below the standard of acceptable professional practice. Nothing in this affidavit details what each of the four physicians did or failed to do in regards to the care provided Mrs. Brown that fell below the standard of acceptable professional practice. Nothing in this affidavit details what Montfort Jones Memorial Hospital, Kosciusko Medical Clinic, or the unidentified nurses did or failed to do in regards to the care provided Mrs. Brown that fell below the standard of acceptable professional practice.

¶ 35. The majority finds that the word “proper” sprinkled through the affidavit creates the necessary allegation of a standard of care. “Proper” is not a substitute for evidence of a standard of care. Nothing in the affidavit indicates that the affi-ant was aware of the standard of care for this treatment, that he had compared the defendants’ actions to that standard, and that he had found the care wanting in specific respects. The doctor made no effort to assert that what was being described as “proper” care met an objective standard of care. This affidavit did nothing more than assert that the defendants did not do what they should have. That is not expertise; that is dissociated criticism.

¶ 36. Whether the plaintiffs physician was unaware of the need to describe a standard of care, or did not have the knowledge or had not performed the research necessary to identify the standard for the challenged medical procedures, or for some other reason failed to state an opinion as to the standard of care applicable to this case and the manner in which the defendants fell short, the result is the same. Nothing was presented to the fact-finder to make a case that the defendants failed to meet the standard of care.

¶ 37. An expert brought in to prove a plaintiffs case is supposed to have expertise. Making assertions of what would have been proper treatment without linking the propriety to its necessary source, namely, an understood and identified standard of care, means that the physician has not yet demonstrated that he has the needed expertise. It is not enough to be a doctor. Someone who is offered to testify as to the breach of a standard of care must be able to identify what the standard is. It does not matter with what words the expert identifies the standard. He may use magical words of “standard of care” or inartful words that express the same.

¶ 38. Had the plaintiffs physician been offered to testify at trial and would only say that what he would have required the defendants to do is the “proper” treatment, that testimony would properly have been found inadmissible. To have allowed such testimony over objection would be to hold that the “standard of care” element in a professional malpractice case is strictly a matter for individual assessment by a member of that profession who is willing to testify. Instead, it is a matter for the considered judgment of a number of professionals and generally accepted in the relevant part of the medical community. Without more, the trial judge could not determine whether the plaintiffs’ version of what was proper was “junk science” or a professionally recognized standard of care.

¶ 39. Professional hindsight may well often discover, or at least cause a later physician examining the records to assert, what, had it been done a little differently, would have saved any particular patient. These defendant doctors as they were treating Lois Brown did not have the benefit of hindsight. They had a patient with identified ailments whom they were treating. It is not mere semantics to require that those who would make a case of professional malpractice to show not only what would have helped this particular patient this particular time, but to demonstrate that what the doctors could have done is actually what is required by the standard of care.

¶ 40. When those two matters become one, when what might in retrospect have helped this patient this time becomes after-the-fact the standard of care, then physicians have become the insurers for their patients. Doctors usually only get one opportunity to save a patient; whether they performed appropriately with that one opportunity depends on the standard of care, not on hindsight, or on what was better, or desirable, or proper. That distinction is not magic words; it is the law.

¶41. A defense motion for summary judgment puts plaintiffs to the test of whether there is a dispute of material fact sufficient to justify a trial. Pleadings and argument are no longer enough. The response here was inadequate. There was no evidence from the plaintiffs of the relevant standard of care, of how defendants’ actions fell short of that standard, and that Mrs. Brown’s death was the proximate result of that failure to maintain the standard of care. I would affirm.

McMILLIN, C.J., LEE AND BRANTLEY, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: CHANDLER, J., for the court. McMILLIN, C.J.,

license: Public Domain

text:
    Scott MILBURN, Top Bail Bond, Albert A. Milburn, ABC and Hampton Gardner d/b/a The Hampton Company, Appellants, v. Vergie VINSON, Appellee.
    No. 2000-CA-01394-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2002.
    Rehearing Denied March 18, 2003.

      Sanford E. Knott, Jackson, attorney for appellants.
    Eugene Coursey Tullos, Mark K. Tullos, Raleigh, attorneys for appellee.
   CHANDLER, J., for the court.

¶ 1. Vergie Vinson brought suit against Scott and Albert Milburn, Top Bail Bond, and the Hampton Company for unlawful trespass and emotional distress. The case was tried on December 22, 1999, in Smith County, Mississippi. Judgment was found in Mrs. Vinson’s favor in the amount of $200,000 in compensatory damages and $100,000 in punitive damages. The appellants, feeling aggrieved by the judgment against them, have appealed this award and allege three assertions of error. Firstly, the appellants allege that the trial court erred in not granting the appellants’ motion for judgment notwithstanding the verdict as to whether a trespass was committed. Next, they argue that the trial court erred in not setting aside the jury verdict as against the overwhelming weight of the evidence. Finally, the appellants argue that the trial court erred in refusing to grant their motion for remitti-tur.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On Christmas Day 1996, Scott and Albert Milburn, bail bondsmen employed by the Hampton Company, went to the home of the appellee, Vergie Vinson. The Milburns were hoping to find Alfred Robinson at Mrs. Vinson’s home. Robinson, Mrs. Vinson’s son, failed to appear in court on a bond held by the Milburns’ employer.

¶ 4. The Milburns arrived at Mrs. Vinson’s home at approximately 1:00 p.m. Christmas Day and knocked on the door. Mrs. Vinson, who was eighty-three years old at the time, opened the door to find the Milburns outside. At this point the events of the afternoon are highly disputed. Mrs. Vinson testified that she opened her door and greeted the Milburns. One of the men responded that they were there to search her home. Mrs. Vinson asked if they had a search warrant. In answer, one of the men quickly held out a piece of paper. Because of recent eye surgery, Mrs. Vinson was unable to read the document and therefore, believing it to be a search warrant, she let them in her home. At that point, Mrs. Vinson testified that Mr. Albert Milburn remained in the living room with her and Mr. Scott Milburn searched every room in her home, including the closets and her bedroom. She further testified that although the men never removed their guns from under their jackets, she could tell that they were both armed. As soon as the Milburns left, Mrs. Vinson contacted the Smith County Sheriffs Department to report the incident.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE APPELLANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 5. The appellants argue that the trial court erred in refusing to grant their motion for judgment notwithstanding the verdict as to whether a trespass was committed. . They argue that, as bail agents, the Milburns had the authority to search Mrs. Vinson’s home and properly exercised that authority.

¶ 6. Directed verdict and JNOV motions challenge the legal sufficiency of the evidence. Woodard v. Turnipseed, 784 So.2d 239 (¶ 13) (Miss.Ct.App.2000). When such motions are made, the court must consider all of the evidence, not just evidence that supports the non-movant’s case, in the light most favorable to the party opposed to the motion, giving the non-movant all favorable inferences that may be reasonably drawn from the evidence. Id. If, after examining the facts and inferences, the facts and inferences point so overwhelmingly in favor of the movant that no reasonable person could have arrived at a contrary verdict, the motion must be granted. Id.; Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984). On the other hand, if there is substantial evidence opposed to the motion, evidence of such quality and weight that reasonable and fair-minded people might reach a different conclusion, the motion should be denied and the jury’s verdict allowed to stand. City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983); Hammack v. Czaja, 769 So.2d 847 (¶ 9) (Miss.Ct.App. 2000). Only when a directed verdict at the close of the plaintiffs or the defendant’s case would have been proper, will a judgment notwithstanding the verdict be proper. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1098 (Miss.1992); Hammack, 769 So.2d at (¶ 9).

¶ 7. The appellants rely upon Mississippi Code Annotated § 99 — 5—27(2)(b) (Rev. 2000) to support their argument that they had the right to enter Mrs. Vinson’s home to search for Robinson. That statute reads as follows: “[bjail or its agent, at any time, may arrest its principal anywhere or authorize another to do so for purpose of surrender.... ” Miss.Code Ann. § 99-5-27(2)(b) (Rev.2000).

¶ 8. Appellants further rely upon Taylor v. Taintor, 16 Wall. 366, 371, 21 L.Ed. 287 (1872). In Taylor, the United States Supreme Court held that a bail agent had the authority to seek and arrest a person fleeing the court’s jurisdiction. Id. The court noted that the bail agent could arrest the principal at any time and in any state. Id. The court further stated that the bail agent was within his authority to enter the principal’s home to arrest him and return him to the court’s jurisdiction. Id. This line of authority was adopted by the Mississippi Supreme Court in Cartee v. State, 162 Miss. 263, 265, 139 So. 618, 620 (1932) and codified as Miss.Code Ann. § 99-5-27 (Rev.2000).

¶ 9. While the above cited authority would give the Milburns the right to search Robinson’s home, it does not grant the authority to search a third party’s home. The appellants testified that Robinson received some mail at his mother’s home and that her address was on the title to his vehicle; however, testimony from Mrs. Vinson and her other children, including her son and next-door neighbor Hillman Vinson, indicated that Robinson seldom visited his mother’s residence and actually lived out of the state.

¶ 10. A trespasser is defined as one who enters upon another’s premises “without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience.... ” Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351(¶ 28) (Miss.1998) (quoting Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 644, 80 So.2d 785, 790 (1955)). Mrs. Vinson testified that only after the Mil-burns showed her what they represented to be a search warrant, did she allow them in her home. Because they did not have a search warrant or other authority to search Mrs. Vinson’s home, there was sufficient evidence for the jury to find that a trespass had been committed.

II. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE JURY’S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 11. The appellants argue that the trial court erred in failing to set aside the jury’s verdict and awards of compensatory and punitive damages as against the overwhelming weight of the evidence. They argue that Mrs. Vinson failed to present evidence to support the award of compensatory damages. The appellants further assert that the punitive damages award should have been set aside as the appellants’ actions did not exhibit willful, wanton, or reckless disregard for Mrs. Vinson’s safety.

¶ 12. The court accords great deference to jury verdicts. Sperry-New Holland v. Prestage, 617 So.2d 248, 268 (Miss.1993). “A verdict should be set aside where it is manifest, from the evidence and surroundings, that it is not a fair and true verdict.” Gibson v. A.P. Lindsey, Distributor, Inc., 233 Miss. 853, 864, 103 So.2d 345, 349 (1958). The court in Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997) stated:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

¶ 13. Stated differently, the trial judge may only usurp the jury’s function in setting a damage award, when he finds, pursuant to the statute, either: (1) that the jury’s verdict is so shocking to the conscience that it evidences bias, passion, and prejudice on the part of the jury; or (2) that the verdict was contrary to the overwhelming weight of the credible evidence. State Highway Comm’n of Mississippi v. Warren, 530 So.2d 704, 707 (Miss.1988). Therefore, this Court, on appellate review, will only set aside a jury award if it is found to be “so unreasonable in amount as to strike mankind at first blush as beyond all measure, unreasonable in amount and outrageous.” Woods v. Burns, 797 So.2d 331 (¶ 15) (Miss.Ct.App. 2001) (quoting Lewis v. Hiatt, 683 So.2d 937, 941 (Miss.1996)).

¶ 14. In the case sub judice, Mrs. Vinson testified at trial that since the incident at her home, she has had trouble sleeping and eating properly. Mrs. Vinson also testified that she was constantly afraid, even in her own home. She stated that, for the first time in her life, she felt it necessary to keep her doors and windows locked at all times. Mrs. Vinson further stated that she was unable to participate in several activities that she was very involved in before the Milburns forced their way into her home. She stated that she used to walk quite some distance from her home but now would only walk in her yard or the short distance to her son’s home next door. She also stated that she now carries a telephone with her at all times and will only go outside if her son and daughter-in-law are at home.

¶ 15. Hillman Vinson and his wife, Sandra, also testified to Mrs. Vinson’s constant nervousness and inability to sleep. Dr. Phil Thompson, Mrs. Vinson’s primary physician, testified about his treatment of Mrs. Vinson. Dr. Thompson testified that Mrs. Vinson’s mental and emotional health had suffered significantly since the incident at her home. He testified that he treated Mrs. Vinson more often because of her emotional troubles and that he had to often adjust her medications to help her sleep and cope in public places.

¶ 16. As stated by the Mississippi Supreme Court, a jury’s verdict is not merely advisory. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992). The jury sits in the best position to determine the amount of damages warranted in a particular case, if any at all. Lewis, 683 So.2d at 941. In addition, “[t]here are some damages, such as medical expenses and loss of income, which must be proved with reasonable certainty, but there are also some damages, such as pain and suffering, that are not susceptible of proof as to monetary value, and these items must be left to the discretion of the jury as long as the amount thereof, under all of the evidence, is just and reasonable.” General Motors Corp. v. Pegues, 738 So.2d 746 (¶ 26) (Miss.1998) (quoting Grant, Summary of Mississippi Law § 980.1 (Supp.1984)). Therefore, viewing the evidence presented in the light most favorable to the non-moving party, we find that the jury award was not against the overwhelming weight of the evidence and that the trial court did not err in refusing to grant a new trial.

¶ 17. The appellants further argue that the trial court erred in allowing the award of punitive damages to stand. They argue that the Milburns’ actions did not amount to willful, wanton or reckless disregard for Mrs. Vinson’s safety. They further argue that they did not commit actual fraud against Mrs. Vinson. As such, the defendants maintain that the punitive damages award was improper.

¶ 18. Mississippi Code Annotated § 11-l-65(l)(a) (Supp.2001) provides as follows:

(1) In any action in which punitive damages are sought: (a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.

Because the evidence presented at trial rises to the standard necessary for a punitive damages award, this assignment of error is without merit.

¶ 19. The Milburns went to Mrs. Vinson’s home on Christmas Day. At the time Mrs. Vinson was an eighty-three year old lady who was alone. The Milburns flashed a document at Mrs. Vinson that they represented to be a search warrant. They then entered her home and searched it thoroughly. Testimony from Mrs. Vinson and her son and daughter-in-law reveal that the house was in a state of disarray when the Milburns left. Mrs. Vinson also testified that the Milburns threatened her son and threatened to come back to her home to find him if necessary. Also relevant was the fact that both men wore their firearms into Mrs. Vinson’s home. Mrs. Vinson testified that she saw the guns and was terrified.

¶ 20. Based on the testimony given, the jury reasonably determined that the Mil-burns acted with malice or in reckless disregard for Mrs. Vinson’s safety when they entered her home. As such, the award was proper.

III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE DEFENDANTS’ MOTION FOR REMITTITUR?

¶ 21. The appellants argue that the trial court erred in refusing to grant their motion for remittitur. They maintain that the verdict was the result of bias, prejudice, or passion on the part of the jury.

¶ 22. A trial court’s authority to grant a remittitur is grounded in statute and reads as follows:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Miss.Code Ann. § 11-1-55 (Rev.1991).

¶ 23. Where a trial court refuses to grant a remittitur, this Court reviews the decision for abuse of discretion. Odom v. Roberts, 606 So.2d 114, 121 (Miss.1992). The jury’s award is not to be set aside unless it is entirely disproportionate to the injury sustained. Illinois Cent. R.R. v. Gandy, 750 So.2d 527, 534 (¶¶25-26) (Miss.1999). The court looks to see whether the verdict is so excessive it shocks the conscience evidencing a bias, passion and prejudice on the part of the jury. Dorris v. Carr, 330 So.2d 872, 874 (Miss.1976). If a remittitur in any amount is awarded, the plaintiff will then have the option of accepting the reduced award or going to trial again on the issue of damages alone. Odom, 606 So.2d at 122.

¶ 24. After a thorough review of the evidence, we find that the trial court did not abuse its discretion in refusing to grant a remittitur. Mrs. Vinson presented sufficient evidence to support the award of compensatory damages and the appellants’ actions were sufficiently egregious to warrant a punitive damages award.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF SMITH COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANTS.

KING, P.J., BRIDGES, MYERS AND BRANTLEY, JJ., CONCUR. McMILLIN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., THOMAS AND LEE, JJ. IRVING, J., NOT PARTICIPATING.

McMILLIN, C.J.,

dissenting:

¶ 26. I respectfully dissent on the issue that the amount of actual damages returned by the jury was supported by the proof. I would remand for a new trial as to damages only. An award of $200,000 in actual damages for this unfortunate interlude in Vinson’s home is, in my view, so excessive as to be unsupportable.

¶ 27. The plaintiff has the burden of proof as to every element of her claim, including evidence of damages actually suffered attributable to the injurious conduct of the defendants. Boling v. A-1 Detective & Patrol Service, Inc., 659 So.2d 586, 590 (Miss.1995). In this case, Vinson’s only assertion of damages consists of mental anguish alleged to have arisen as a result of the defendants’ invasion of her home. The proof as to the extent of such post-event suffering on her part was not accompanied by any evidence of physical injury or of any substantial mental injury requiring medical or psychological treatment. I would hold that a jury verdict of this magnitude on the evidence of damages contained in this record could only result from a jury having — understandably, perhaps, but nevertheless wrongly — given itself over to passion and prejudice or bias against these defendants. Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902, 905 (1962).

¶ 28. This is not to say that the conduct of the defendants was not so egregious as to warrant the consideration and imposition of punitive damages in addition to those actually suffered by Vinson. Nevertheless, an award of punitive damages in an appropriate sum designed both to punish these defendants and deter similar conduct by others in the future is something entirely different from an award of actual damages that is excessive on the available evidence. The fact that punitive damages may be in order cannot be used to gloss over an award of actual damages that finds little or no support in the record based on any reasonable review.

¶ 29. I would reverse and remand for a new trial on actual damages, at the conclusion of which the jury could, if the trial judge found it appropriate, consider once again the imposition of an additional award by way of punitive damages.

SOUTHWICK, P.J., THOMAS AND LEE, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: WOODALL, Justice.

text:
    Clifford James JONES et al. v. Ralph HOOKS et al.
    1010948.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Rehearing Denied Nov. 27, 2002.
    David Gespass of Gespass & Johnson, Birmingham, for plaintiffs.
    Arthur Brennan Malloy, pro se.
    William H. Pryor, Jr., atty. gen., Beth Slate Boe, asst. atty. gen., and Edward A. Hosp, governor’s legal advisor.
   WOODALL, Justice.

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

“(1) Does Alabama law authorize the governor to grant a commutation of a sentence of life without parole to a sentence of life with the possibility of parole?
“(2) If so, what guidelines, if any, apply to the decision-making process?
“(3) Is a hearing before the governor required at which the prisoner can present his case?
“(4) May the denial of a grant of commutation or the refusal to rule on a request for commutation be challenged and, if so, in what forum, controlled by what rules or procedures?”

Our answer to the first question moots the remaining questions.

The Alabama Constitution of 1901 originally provided:

“The governor shall have power to remit fines and forfeitures, under such rules and regulations as may be prescribed by law; and, after conviction, to grant reprieves, paroles, commutations of sentence, and pardons, except in cases of impeachment. The attorney-general, secretary of state, and state auditor shall constitute a board of pardons, who shall meet on the call of the governor, and before whom shall be laid all recommendations or petitions, for pardon, commutation, or parole, in cases of felony; and the board shall hear them in open session, and give their opinion thereon in writing to the governor, after which or on the failure of the board to advise for more than sixty days, the governor may grant or refuse the commutation, parole, or pardon, as to him seems best for the public interest. He shall communicate to the legislature at each session every remission of fines and forfeitures, and every reprieve, commutation, parole, or pardon, with his reasons therefor, and the opinion of the board of pardons in each case required to be referred, stating the name and crime of the convict, the sentence, its date, and the date of reprieve, commutation, parole, or pardon. Pardons in cases of felony and other offenses involving moral turpitude shall not relieve from civil and political disabilities, unless approved by the board of pardons and specifically expressed in the pardon.”

Ala. Const.1901, § 124 (emphasis added).

Section 124 of the constitution was amended in 1939, however, to provide:

“The governor shall have -power to grant reprieves and commutations to persons under sentence of death. The legislature shall have power to provide for and to regulate the administration of pardons, paroles, remission of fines and forfeitures, and may authorize the courts having criminal jurisdiction to suspend sentence and to order probation. No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon.”

Ala. Const.1901, Amendment No. 38 (emphasis added).

One of the petitioners argues that Amendment No. 38 did not curtail the powers of the governor to commute sentences, but, in fact, expanded those powers to include the power to commute sentences of death, which power was not expressly mentioned in § 124 as it read before its amendment. We disagree with this argument.

“[I]t clearly appears [Amendment No. 38] was intended as a substitute for [§ 124].” Summers v. State, 244 Ala. 672, 672-73, 15 So.2d 502, 503 (1943) (emphasis added). In other words, Amendment No. 38 “was designed to take the place of § 124.” Swift v. Esdale, 293 Ala. 520, 523, 306 So.2d 268, 271 (1975) (emphasis added). “The purpose of the amendment was to adopt a new system by which the State should administer ‘pardons, paroles [and] remission of fines,’ etc., and whereby such matters — thus disposed to legislative authority — were transferred from executive power.” Pinkerton v. State, 29 Ala.App. 472, 475, 198 So. 157, 158 (1940) (emphasis added). See also Ex parte Board of Pardons & Paroles, 793 So.2d 774, 776 (Ala.2000). “Amendment 38 [merely] retained the power in the governor to grant reprieves and commutations to persons under a death sentence ..." Brown v. State, 288 Ala. 680, 681, 264 So.2d 549, 550 (1971) (emphasis added).

The governor’s commutation power is limited .to the power plainly expressed in Amendment No. 38. There is, therefore, no constitutional or statutory provision “authoriz[ing] the governor to grant a commutation of a sentence of life without parole to a sentence of life with the possibility of parole.” Consequently, we answer question no. 1 in the negative. Because we have answered question no. 1 in the negative, we need not answer the remaining questions.

QUESTION NO. 1 ANSWERED; OTHER QUESTIONS DECLINED.

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

      . The undisputed facts precipitating these questions are succinctly stated in the brief of the respondent:
      "The certification request arose from federal habeas corpus petitions filed by twelve state inmates. [They] have been sentenced to life without parole either following a conviction for capital murder or pursuant to the Alabama Habitual Felony Offender Act. Petitioners allege that they have all sought commutation of their sentences from life without parole to life with the possibility of parole but that these petitions have been denied or ignored by Governor Don Siegelman or his predecessor, then-Governor Fob James.”


author: HARWOOD, Justice.

text:
    WATER AND WASTEWATER BOARD OF the CITY OF MADISON and Bernard L. Bressette v. G. Walton ANDERSON.
    1010896.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Rehearing Denied Nov. 27, 2002.

      William W. Sanderson, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville; and H. Thomas Wells, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellants.
    Charles H. Younger, Huntsville, for ap-pellee.
   HARWOOD, Justice.

The Water and Wastewater Board of the City of Madison and Bernard L. Bressette (hereinafter collectively referred to as “the Water Board”) appeal from the trial court’s writ of mandamus directing the Water Board to provide water service to property owned by G. Walton Anderson. We reverse and remand.

On April 24, 2001, Anderson sued the Water Board; his complaint contained, as an alternative, a petition for a writ of mandamus that sought an order from the trial court directing the Water Board to provide water service to his property. Anderson’s complaint stated, in pertinent part:

“2. Plaintiff is the owner of a tract or parcel of land located in Madison County, Alabama (hereinafter ‘the Property’). The Property contains approximately 8.85 acres more or less, and is bounded on the west by County Line Road, a public road being on the approximate boundary between the counties of Madison and Limestone, Alabama. The Property is bounded on the north, east, south, and west by the corporate boundaries of the City of Madison, Alabama, a municipal corporation organized and existing under the laws of the State of Alabama (‘the City’). The Property is more specifically described by ‘Exhibit A,’ attached hereto and made a part of this complaint. [Exhibit A is not attached to this opinion.]
“3. Defendant, the Water and Wastewater Board of the City of Madison, Inc., is a public corporation within the state of Alabama, organized pursuant to Sections 11-50-310 through 11-50 — 324[,] Code of Alabama, 1975 (hereinafter ‘the Defendant’). The Defendant owns and operates a water system as a public utility, and is the sole distributor of potable water within the corporate boundaries of the City of Madison, and certain nearby territory. Defendant, Bernard L. Bressette is the duly appointed and acting General Manager of the Defendant, with authority and supervision over the issuance of connection permits for customers seeking service. (Hereinafter ‘Bressette’.)
“4. On or about the 27th day of July 1990, the Defendant entered into an agreement with the Madison County Commission, the governing body of Madison County, Alabama, to purchase from the County certain assets then owned and operated by the County as part of its water system serving portions of Madison County (‘the 1990 Acquisition’). The Property was at that time a part of the then service area acquired by the Defendant through the 1990 Acquisition, although there was at the time no actual water distribution line directly adjacent to or upon Plaintiffs property.
“5. Shortly after the 1990 Acquisition, and before Plaintiff actually requested water service to the Property, the Defendant installed a ductile iron water distribution line in the right-of-way of County Line Road, directly adjacent to Plaintiffs Property (‘the Adjacent Line’).
“6. Subsequent to installation of the Adjacent Line, Plaintiff initiated oral discussions with Bressette, concerning potable water service to the Property. Mr. Bressette stated that water was available to the property upon payment of the Board’s standard tap fee, but that sanitary sewage service would not be available. No actual application for service was made at that time due to unavailability of sanitary sewer.
“7. On the 8th day of January 1996, and in spite of the responsibility for service assumed by the Defendant under the terms of the 1990 Acquisition Agreement with respect to the service area, the Defendant adopted a policy denying service to any property not included within the corporate boundaries of the City of Madison (hereinafter ‘the 1996 Policy’).
“8. Plaintiff has applied for and received permits from the Madison County Department of Health permitting installation and maintenance of a sanitary sewer septic system serving the Property-
“9. After having been denied service by Defendant, Plaintiff arranged, with the approval of the Madison County Commission, to receive service to the Property from the Limestone County Water Authority, which then served an area of Limestone County located across County Line Road from Plaintiff[’]s Property. On April 23, 1998, employees of Defendant, acting under instructions from Bressette, and as an aid to enforcement of the 1996 Policy, wrongfully and unlawfully removed and/or appropriated a casing and PVC pipe which Plaintiff had installed under County Line Road at a cost of $8,300.00. The sole purpose of the confiscation was to compel Plaintiff to annex his property into the City of Madison and to compel Plaintiff to utilize as a customer, Defendant’s water and sewer service.
“10. On or about July 1, 1999, Plaintiff, through his attorney, applied to the Defendant for water service to the Property. The application demonstrated compliance with all of the rules, regulations, and requirements of Defendant with respect to operation of its public water system, except that the Property remained outside the corporate boundaries of the City.
“11. On or about July 29, 1999, Plaintiffs counsel received a response to Plaintiffs request for service from Defendant’s attorney, Honorable William W. Sanderson, Jr., citing the 1996 Policy. It was claimed by Defendant’s attorney that the 1996 Policy was ‘... firmly grounded in important public policy considerations related to assuring that safe and healthful drinking water can be made available to the (Defendant’s) customers.’ It was also claimed that the 1996 Policy was a ‘legitimate exercise of the (Defendant’s) authority and responsibility to protect the sources of water for its Customers.’ In effect, Defendant, through its attorney, claims the right to deny service to a portion of its service area as a public utility, solely on the ground that the property to be served is not within the corporate boundaries of the City. The Defendant is a public corporation which enjoys only those powers conferred by its charter. The charter of Defendant confers no powers on the corporation, either express or implied, to regulate the use of any property within its service areas as a means of compelling its customers to also utilize its sanitary sewer service, or as a means to compel its customers to annex into the corporate boundaries of any municipality. The Defendant has no corporate charter power over any municipal annexation policy. The 1996 policy is ultra vires and void as being in excess of the charter power of the Defendant as a public utility.
“12. As a public utility, Defendant enjoys a franchise to operate a water distribution system serving customers within the corporate boundaries of the City of Madison, or partly within and partly without such boundaries. Defendant also has a public duty to serve all customers who apply for service and who comply with its reasonable rules, regulations, and conditions. Plaintiffs Property is located within the service area of Defendant. Plaintiff has complied with all of the reasonable rules, regulations, and conditions adopted by Defendant which are within its charter power. Nevertheless, Defendant has arbitrarily and without just cause, failed and refused to perform its obligation of service to Plaintiff and Plaintiffs Property.
“14. Defendant, as a public corporation, is invested by the State of Alabama with the powers of eminent domain (Alabama Code Section 11 — 50—314(a)(ll)). As a public corporation invested with the power of eminent domain, Defendant is commanded by the Constitution of Alabama of 1901, Section 235, to make just compensation before taking, injury, or destruction of property for public use. The application of Defendant’s 1996 Policy has caused great injury and damage to Plaintiffs Property, and has resulted in Plaintiff being hindered in planning for the commercial use of his Property, for which it is well located and suited, and has prevented him from developing, using, or leasing said Property for any purpose for which it is suited, thereby totally depriving Plaintiff of the value of its use during the time that the 1996 Policy has been applied to prevent such use.
“15. As a result of Defendant’s enforcement of the 1996 Policy, Plaintiff has been forced to spend great sums of money to find alternative ways to develop his Property and to serve the users thereof with potable water for operation of commercial businesses, including the operation of a proposed convenience store to be located on part of the property. Plaintiff has been forced to drill his own well at great expense, and although the well is proven to produce great amounts of water far in excess of the needs of Plaintiffs Property, the estimated cost of installing a treatment and distribution system to support commercial use of Plaintiffs Property is $66,900.00. Even though Plaintiff has received all of the necessary permits to install said system, Plaintiff prefers service from defendant’s system, thereby avoiding future operation and maintenance expense for operation of his own system.”

On April 26, 2001, the trial court set a show cause hearing on Anderson’s petition for the writ of mandamus for July 6, 2001. On June 18, 2001, the Water Board filed a motion to dismiss Anderson’s claims against it, arguing, in part, that “[t]here is neither an Alabama statutory requirement for a municipal water board to provide water to a designated service area nor is there any Alabama jurisprudence which would impose such a requirement.” The trial court noted on the face of the motion that it would also hear the motion to dismiss on July 6, 2001, and that any written response had to be filed by July 8, 2001.

On July 3, 2001, Anderson filed eviden-tiary submissions and a brief and argument in opposition to the Water Board’s motion to dismiss; Anderson’s filing also contained a motion to convert the Water Board’s motion to dismiss into a motion for a summary judgment. The trial court held a hearing on July 6, and on July 9, 2001, the Water Board filed a brief in support of its motion to dismiss and response to the show cause hearing with attached exhibits. On July 27, 2001, Anderson filed caselaw in support of his petition for the writ of mandamus and an evidentiary supplement to his July 3, 2001, opposition to the Water Board’s motion to dismiss. On that same day, the Water Board filed an amended motion to dismiss. On October 11, 2001, Anderson filed a second evidentiary supplement in opposition to the Water Board’s motion to dismiss and a supplemental brief in support of his petition for the writ of mandamus.

On October 17, 2001, the Water Board filed a supplemental response to Anderson’s July 27, 2001, and October 11, 2001, filings. On October 26, 2001, the trial court entered an order; that order stated, in pertinent part:

“THIS matter initially came before the Court for hearing on July 6, 2001, which hearing addressed the request of the Plaintiff for a show cause/mandamus hearing by the Defendants, but which also included arguments and submissions from the Defendants concerning their Motion to Dismiss .... The parties appeared at that time with their respective counsel and the Court proceeded to receive arguments, exhibits and additional submissions. By mutual agreement of counsel, these additional submittals were made of pleadings and documents for the Court’s consideration containing materials that were outside the initial pleadings .... The parties agreed that the Court should treat the Defendants’ motion to dismiss as a motion for summary judgment in accordance with Rule 56 of the Alabama Rules of Civil Procedure. Since then, the Court has continued to receive various pleadings and supplements and, having considered same, ORDERS as follows:
“2. As to Count I which seeks an order requiring the [Water and Waste-water Board of the City of Madison] and Bernard L. Bressette, General Manager of the [Water and Wastewater Board of the City of Madison] to provide water service to property of the Plaintiff, G. Walton Anderson, the Court is of the opinion that the Plaintiff is entitled to water service to his property as described in the complaint, that the Defendants may not deny service because the property is not annexed into the City of Madison or because the property will be served by otherwise lawful septic tank.
“Therefore, it is hereby ORDERED that the Plaintiffs prayer for an order mandating service is hereby granted and the Defendants are ORDERED to forthwith provide water service to the Plaintiffs property....”

(Emphasis omitted.) On November 26, 2001, the Water Board filed a motion to alter, amend, or vacate the trial court’s order; that motion was denied on December 20, 2001. On January 29, 2002, the Water Board filed a notice of appeal to this Court.

The Water Board, in its brief on appeal, frames the issue, with sub-issues, as follows:

‘WHETHER THE TRIAL COURT ERRED IN ISSUING A WRIT OF MANDAMUS REQUIRING THE WATER BOARD TO PROVIDE WATER SERVICE TO ANDERSON’S PROPERTY.
“A. Whether mandamus relief is unavailable in this case because Anderson does not have a clear right to the relief sought, because the decision whether to supply water to his property is discretionary with the Water Board, and because other adequate remedies are available.
“B. Whether the Water Board may refuse to supply water to Anderson’s property, which is located outside the City of Madison but contiguous to the city limits, unless Anderson’s property is annexed into the City.”

The Water Board first argues that the trial court erred in granting Anderson’s petition for a writ of mandamus because, it says, Anderson did not prove the necessary elements required for mandamus relief. This Court has stated:

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

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

It is undisputed that the service area the Water Board purchased in 1990 from the Madison County Commission included Anderson’s property. However, on January 8, 1996, the Water Board adopted a resolution that limited its service area. That resolution stated, in pertinent part:

“A RESOLUTION TO ADOPT A WATER SERVICE AREA POLICY
“WHEREAS, the Water and Waste-water Board was organized and incorporated by the City of Madison, Aabama; and
‘WHEREAS, in recent years the explosive growth of the City of Madison has put heavy demands on the resources of the Board to meet the water and sewage disposal needs of Madison residents and businesses; and
WHEREAS, these demands on the Board’s resources, particularly the demand for water, has made it increasingly difficult for the Board to meet the needs of the City of Madison customers while continuing with the Board’s policy of serving water customers outside Madison’s city limits; and
“WHEREAS, while the Board is presently engaged in an extensive search for new water sources, the success of the effort is far from certain and, in any event, the costs of securing significant new water sources will be substantial; and
“WHEREAS, the Board finds and declares its primary purpose to be the provision of water and sewage disposal services to customers located within the corporate limits of the City of Madison.
“NOW, THEREFORE, BE IT RESOLVED BY THE WATER AND WASTEWATER BOARD OF THE CITY OF MADISON, ALABAMA, that the attached Water Service Area Policy of the Board is hereby adopted, effective immediately upon the adoption of this policy.
“The General Manager is directed to publish this policy for three consecutive weeks in a newspaper of general circulation in the City of Madison.”

The Water Service Area Policy adopted by the Water Board stated, in pertinent part:

“INTRODUCTION
“By the policy adopted today, the Water and Wastewater Board of the City of Madison reverses its previous policy of making water service available to applicants for such service within reach of the Board’s water mains. This policy is the outgrowth of increasing demands for the Board’s limited resources and a review of the Board’s historical core commitment to supply residents and businesses of the City of Madison.
“HISTORICAL BACKGROUND FOR THIS POLICY
“The Water and Wastewater Board of the City of Madison was organized and incorporated by the City of Madison primarily for the purpose of providing water and sewage disposal services to the residents and businesses of the City of Madison. While there have been some examples of the Board providing public sewer service to customers outside of Madison’s city limits, that practice, except for service to then-existing customers, was prohibited several years ago by ordinance. The City’s action to limit sewer service outside the city limits coincided with a commitment by the City to invest substantially in improvement and extension of the Board’s sanitary sewer system. This effort, which included construction of the Board’s western sewer outfall line, was undertaken, in large measure, to encourage future annexations of the area to be served by the improvements to the system.
“During the time since the City financed the construction of the Board’s western sewer outfall line, significant additional developments have occurred in the area. While the Board’s sewer outfall line, with the construction of connecting trunks, has been adequate to handle this new and expected growth, the Board’s existing water resources have been severely tested and will clearly be inadequate for continued growth at rates seen in the last decade.
“One reason the Board’s water resources have been so severely tested is that the area on the fringes but outside of the corporate limits of the City of Madison has presented ever-increasing demands for water service from the Board. These demands make it more difficult to ensure an adequate supply of water to customers and potential customers inside the City’s corporate limits.
“In addition, because of the unavailability of the Board’s sewer system outside of Madison’s city limits, development outside the City is always designed to use septic tanks. This is problematical because most, if not all, of the recently proposed development is located within the recharge area of the wells which supply the water produced by the Board for its customers.
“Since the Board relies exclusively on ground-water for the water it produces to sell to its customers, substantial development on the fringes, but outside of Madison’s city limits, poses a double threat to the Board’s mission to serve Madison residents with clean, reliable water and sewage disposal services. First, water service needs of outside-City developments make increasing demands on the available water resources of the Board. Second, the proliferation of septic tanks within the recharge area of existing and prospective wells threatens the Board’s ability to protect and expand water resources necessary to serve the Board’s core customers, the residents and businesses of the City of Madison.
“Quite often, property outside the City for which water service is requested is contiguous to the city limits and annexation is a realistic possibility. In most such cases, the Board’s sanitary sewer system is available, or could be made available at reasonable costs after annexation into the city limits.
“Limitation of new water service to the corporate limits of the City of Madison promotes the public interest in a number of ways. First, it promotes more efficient utilization of existing sewer infrastructure. Second, it has the effect of avoiding the proliferation of septic tanks which may pollute the Board’s water sources. Finally, it enables the Board to concentrate its resources for the customers it was incorporated to serve.
“All of these important issues of public policy demand a review and revision of the Board’s past policy regarding water services outside the City. The Board is fully cognizant of the fact that in a number of situations, the Board’s prior commitment to serve water to subdivisions outside the City has resulted in isolated undeveloped residential lots, not contiguous to the city limits, which can be served by the Board, but which cannot be reasonably served in any other way. It would seem unreasonable for the adoption of this policy to adversely affect those lots and property owners.
“Likewise, there may be property not contiguous to the City which is contiguous to water mains of the Board where service to a single residential lot will not unreasonably impact the Board’s water resources nor unreasonably threaten the water quality of its wells. It is not the intent of this policy to adversely impact such property.
“It is the intent of this policy, however, to enhance the Board’s ability to ensure that it can meet its commitment to provide its core customers, the residents and businesses of the City of Madison, with clean, safe, plentiful, and reliable water service as well as appropriate sewage disposal service. The Board finds that this can best be accomplished by limiting the Board’s service of water to the city limits of the City of Madison, as those limits may hereafter be expanded, except insofar as the Board has made previous commitments to serve platted and approved subdivisions or existing individual customers outside the City or the exceptions mentioned above as to new connections.
“POLICY STATEMENT
“1. Effective immediately, the Water and Wastewater Board of the City of Madison will not approve new water service to any applicant for such service for a location outside the city limits of the City of Madison except under the following circumstances:
“(a) The water service requested is for property presently served by the Board and is for service of a like or similar nature to the now-existing service.
“(b) Another water utility company requests the Board’s cooperation to serve a property outside the City of Madison and the Board determines that the request will not unreasonably impact the Board’s available water resources nor unreasonably threaten the water quality of its wells.
“(c) The request is for a single residential (not multifamily) service in a platted and recorded subdivision in Madison County in which the Board currently serves other residential customers and the property is not contiguous and cannot reasonably be made contiguous to the city limits of the City of Madison; or
“(d) The request is for a single residential (not multifamily) service for property which is contiguous to an existing water main of the Board (and may be served by the main without the necessity of easements or rights-of-way from any third party), but which is not contiguous and cannot reasonably be made contiguous to the city limits of the City of Madison; or
“(e) The request for water service is for property which is the subject of a pending petition for annexation submitted to the City of Madison and the approval for water service is made contingent upon the successful annexation of the property into the City.
“2. Notwithstanding the exceptions stated above, if any request for water service outside the city limits is for a service which proposes to also use a septic tank for sewage disposal services, the Board reserves the right to deny the water service if the property is within a one thousand (l,000)-foot radius of any existing well operated by the Board or any proposed well which the Board has under development.
“3. For purposes of this policy, property will be deemed contiguous to the city limits of the City of Madison if any adjacent property owned or controlled by the applicant for water service (or members of the applicant’s immediate family) is contiguous to the City, or if the City of Madison would consider the property contiguous for purposes of considering an application for annexation of the property.”

It is undisputed that Anderson did not file a formal application for water service with the Water Board until July 1, 1999.

Anderson correctly argued to the trial court, and now argues to this Court, that “[a] public utility is obligated to serve all members of the public that it holds itself out to serve, fairly and without discrimination.” Miller v. Hillview Water Works Project, Inc., 273 Ala. 267, 271, 139 So.2d 337, 339 (1962). However, after the Water Board limited its service area in 1996, it no longer held itself out to serve potential customers outside the Madison city limits except under certain specified circumstances. As stated previously, Anderson did not file a formal application for service until 1999. Further, as this Court stated in Miller, “[t]here are ... conditions precedent to the obligation of a public utility to serve any particular applicant. The applicant must submit to such reasonable conditions as the utility sees fit to impose.” 273 Ala. at 271, 139 So.2d at 340. The Water Board’s adoption of a new service area is also entitled to a presumption of validity, Water Works Board of Birmingham v. Barnes, 448 So.2d 296 (Ala.1983)(water board’s creation of a rate schedule was a legislative act and should have been presumed valid by the trial court); Marshall Durbin & Co. v. Jasper Utils. Bd., 437 So.2d 1014, 1018 (Ala.1983)(“Thus, the actions of the [Jasper Utilities] Board, when it acts in its legislative capacity to promulgate rates, as when it takes other legislative actions, are attended with a presumption of validity.”), overruled on other grounds, Ex parte Waterjet Systems, Inc., 758 So.2d 505 (Ala.1999). The Water Board’s submissions concerning the policies underlying the annexation requirement show a reasonable rationale for the requirement — protecting the purity of its sources for groundwater. Moreover, Anderson has failed to show that the Water Board’s policy of requiring annexation of property contiguous to Madison’s city limits had been applied in an arbitrary or discriminatory manner with regard to him as compared with any other person or entity. Miller, supra. Accordingly, we conclude that Anderson did not have a clear legal right to have the Water Board provide water service to his property-

We are also persuaded that mandamus relief is inappropriate by the Water Board’s argument that Anderson had at least one other remedy available to him — a declaratory-judgment action. Anderson does not deny that such an action was available. This Court has stated:

“The lack of another adequate remedy is a prerequisite to the issuance of a writ of mandamus. Ex parte Martin, 703 So.2d 883, 884 (Ala.1996). Bush does not deny that a declaratory-judgment proceeding constitutes an available adequate remedy, but argues that had he sought a declaratory judgment and won, the likelihood is that the same issues presented by this mandamus petition would have been presented to this Court in an appeal by the losing party. Had the scenario presented by Bush occurred, this Court might have found itself faced with the same legal question; however, a critical difference would have existed: there would have been before this Court a fully developed record from a declaratory-judgment proceeding.”

Ex parte Galanos, 796 So.2d 390, 392-93 (Ala.2000).

For the foregoing reasons, we conclude that the trial court erred in issuing a writ of mandamus to the Water Board. Therefore, we reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

SEE and LYONS, JJ., concur in the result.

      . Anderson’s complaint and a subsequently filed amended complaint asserted additional claims against the Water Board that are not pertinent to this appeal.


author: LYONS, Justice.

text:
    GENERAL MOTORS CORPORATION v. Kirk A. STOKES et al.
    1010773.
    Supreme Court of Alabama.
    Oct. 4, 2002.
    As Modified on Denial of Rehearing Jan. 17, 2003.

      Michael L. Bell, Ivan B. Cooper, and W. Lawrence Deas of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    Leah O. Taylor and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appellees.
   LYONS, Justice.

Stokes Chevrolet, Inc. (“the Stokes dealership”), operates a dealership in Clanton that, in addition to the Chevrolet line of the Chevrolet Motors Division of General Motors Corporation (“GM”), sold Chrysler, Plymouth, Dodge, and Jeep vehicles (Stokes’s non-GM lines are hereinafter referred to as “the Chrysler assets”). Rick Bush Motors (“Bush”) was a GM dealer that also operated in Clanton and that had the authority to sell Buick, Oldsmobile, and Pontiac vehicles, and the GMC line of GM. The Stokes dealership was interested in acquiring from Bush assets to be used in the operation of an Oldsmobile, Pontiac, and Buick dealership. Bush’s dealership agreement with GM required GM’s approval of the sale of its assets to the Stokes dealership.

The Stokes dealership obtained GM’s approval and purchased Bush’s assets; however, a condition of the approval was the Stokes dealership’s agreement to relocate the Chrysler assets to another site in Clanton. Bush and the Stokes dealership consummated their asset purchase agreement on April 6, 1999, and on April 8, 1999, the Stokes dealership and GM consummated a “Relocation Agreement and Business Plan” (“the relocation agreement”).

This action arises out of the Stokes dealership’s purchase of 63 new GM vehicles from Bush’s inventory. The Stokes dealership claims that GM promised that the 63 vehicles would be “reinvoiced” to it if it would agree to sell the vehicles. The Stokes dealership further claims that GM promised that it would receive the three percent “dealer-holdback” credit, the advertising credit, and other interest credits on those vehicles. GM denied making any such promises. Kirk A. Stokes, James H. Stokes, and the Stokes dealership (hereinafter sometimes referred to collectively as “the Stokeses”) sued GM and its area market manager, Robert T. Feeley, Jr., alleging fraud, suppression, conversion, negligence, wantonness, and the tort of outrage.

GM’s dealership agreement with the Stokes dealership does not contain an arbitration clause. The relocation agreement contains an arbitration clause; that clause provides for the arbitration of “any and all claims, disputes, and controversies between them arising under or relating to this agreement and its negotiation, execution, administration, modification, extension or enforcement.” GM and Feeley filed motions to compel arbitration. The trial court denied GM’s motion-to compel arbitration. GM appeals.

The first issue to be resolved is whether the arbitration clause in the relocation agreement applies to the claims asserted by the Stokeses in this action. If we determine that it does, we must then determine whether the transaction substantially affects interstate commerce.

I. Standard of Review

“ ‘[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.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-753 (Ala.2002) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)).

II. Does the Arbitration Clause in the Relocation Agreement Apply to This Dispute?

The Stokes dealership contacted GM for financial assistance in acquiring Bush. Negotiations between the Stokes dealership and GM culminated in the execution of the relocation agreement.

According to the Stokeses, the relocation agreement was an agreement separate from GM’s alleged promise to reinvoice the 63 vehicles in Bush’s inventory. The Stokeses contend that the relocation agreement related to the Stokes dealership’s promise to relocate the Chrysler assets to another site in Clanton. Furthermore, according to the Stokeses, the asset purchase agreement with Bush did not include the acquisition of the 63 new GM vehicles. According to the Stokeses, the transaction under which the 63 new GM vehicles in Bush’s inventory would be reinvoiced to the Stokes dealership if it would agree to sell the vehicles arose after the Stokes dealership had an agreement “in principal” to purchase the Bush assets.

GM, on the other hand, argues that the dealership agreement between it and the Stokes dealership is inapposite because that agreement deals with the Stokes dealership’s purchase of vehicles from GM. The vehicles in dispute, according to GM, were “acquired by the plaintiffs as part of the negotiated purchase of the assets of Rick Bush Motors.” GM further contends that the purchase of the 63 vehicles “was not part of the ongoing order of business between a dealer and GM under existing dealer agreements, but was rather a discrete event solely related to the plaintiffs acquisition of the Oldsmobile, Buick and Pontiac franchises — which is absolutely and unmistakably covered by the Relocation Agreement and Business Plan containing the arbitration agreement.”

While the dispute as to whether the 63 vehicles were dealt with in the asset purchase agreement between the Stokes dealership and Bush is sharp, it is not material. The relocation agreement sets forth certain “Recitals” and then provides that GM is willing to consent to matters described in the recitals, subject to the terms and conditions set forth in the relocation agreement. The recitals include a statement that the Stokes dealership had obtained, or would obtain immediately after the execution of the agreement, the right to operate an Oldsmobile, Pontiac, and Buick dealership at the Stokes dealership site pursuant to “Dealer Sales and Service Agreements” between it and the Oldsmobile, Pontiac-GMC, and Buick Motor Divisions of GM. The agreement further recites that “Dealer [Stokes] intends to acquire, before or immediately after the execution of this Agreement, certain assets useful in the operation of an Oldsmobile, Pontiac and Buick automobile dealership” (emphasis added). Also recited was that the Stokes dealership would acquire assets useful in the operation of a GMC dealership (“the GMC assets”) but would sell the GMC assets to GM or its affiliate.

Those recitals refer in general terms to the Stokes dealership’s intent without reference to the provisions of any specific agreements such as the asset purchase agreement between the Stokes dealership and Bush. Consequently, whether the transaction involving the transfer of the 63 vehicles from Bush’s inventory to the Stokes dealership’s inventory was a part of the asset purchase agreement agreed upon in principal before Bush’s agreement with Stokes was formalized on April 6, 1999, is immaterial. The generality of the reference in the recitals sheds light upon the scope of the transaction, an exercise that becomes necessary in order to apply the terms of the arbitration clause.

Among the terms and conditions agreed upon by GM in exchange for its consent to the activities described in the recitals was a payment of $75,000 by GM to the Stokes dealership for the GMC assets and the payment of an additional $25,000 for discontinuance of the Chrysler line at the Stokes dealership location that was to be used for GM products. Also included in the relocation agreement was an agreement to arbitrate disputes. Paragraph 9, entitled “Disputes — Arbitration,” provides, in pertinent part, as follows:

“Subject to the following provisions of this Section, GM and the Dealer agree to submit to final and binding arbitration, upon either party’s written notice, any and all claims, disputes, and controversies between them arising under or relating to this Agreement and its negotiation, execution, administration, modification, extension or enforcement (collectively, ‘Claims’). Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) at an AAA regional office nearest the Property.”

(Emphasis added.)

We have held that an arbitration clause calling for arbitration of disputes “arising under” an agreement does not cover “ ‘matters or claims independent of the contract or collateral thereto.’ ” Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1261-62 (Ala.1994) (quoting Mediterranean Enters., Inc. v. Ssangyong, 708 F.2d 1458, 1463 (9th Cir.1983)). In Bama’s Best Housing, Inc. v. Hodges, 847 So.2d 300, 303 (Ala.2002), this Court noted: “However, we have held that where a contract signed by the parties contains a valid arbitration clause that applies to claims ‘arising out of or relating to’ the contract, that clause has a broader application than an arbitration clause that refers only to claims ‘arising from’ the agreement.” The arbitration clause in the relocation agreement is entitled to the broader interpretation of its scope by reason of the inclusion within it of the phrase “arising under or relating to.”

The arbitration clause provides that claims arising under or relating to the negotiation, execution, administration, modification, extension, or enforcement of the relocation agreement fall within its sweep. The Stokeses maintain that, in addition to money and other considerations set forth in the relocation agreement, additional payments from GM not covered by the written terms of the agreement were orally promised during the negotiations concerning the transaction. The Stokeses sought and obtained financial inducements from GM in connection with this transaction. GM’s consent and financial support was vital to the consummation of the Stokes dealership’s acquisition of Bush’s assets. The Stokeses maintain that further financial inducements are due in connection with the acquisition of the 63 vehicles from Bush. Such a transfer of assets is not a part of an ongoing relationship between GM and the Stokes dealership, and it is therefore not subject to the dealer agreement between the parties. Such an alleged promise was a discrete event related to the Stokes dealership’s acquisition of the Oldsmobile, Buick, and Pontiac franchises and, therefore, a claim based on that promise constitutes a claim “arising under or relating to” the “negotiation” of the relocation agreement. The claims made the basis of this action are therefore subject to arbitration pursuant to the arbitration clause in the relocation agreement.

III. Does This Transaction Substantially Affect Interstate Commerce?

Title 9 U.S.C. § 2, a portion of the Federal Arbitration Act, provides: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” In Liberty National Life Insurance Co. v. Douglas, 826 So.2d 806, 809 (Ala.2002), we held that “[t]he party trying to compel arbitration has the burden of proving the existence of a contract requiring arbitration and proving that that contract involves a transaction that substantially affects interstate commerce.”

The Stokeses urge us to follow Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), while GM argues that we should overrule Sisters of the Visitation. In Sisters of the Visitation, this Court concluded that a plastering contract for repairs to a church building did not have a substantial effect on interstate commerce. Both parties apparently assume that a case that involved a construction contract setting forth factors to be considered in determining whether the transaction had a substantial effect on interstate commerce must routinely be applied to complex commercial transactions arising in a totally different context. We can determine whether this transaction has a substantial effect on interstate commerce without substantial reliance upon, or disavowal of, the test set forth in Sisters of the Visitation.

GM waited until the day of the hearing on the motions to compel arbitration to submit an affidavit purportedly showing that the transaction has a substantial effect on interstate commerce. The trial court struck the affidavit. GM states, in a footnote in its brief to this Court that the trial court erred in doing so, but it does not cite any authority for its contention. We cannot reverse the order of the trial court where GM has not offered any legal authority for us to do so. See Rule 28(a)(10), Ala. R.App. P.; Whited v. Holmes, 816 So.2d 20, 26 (Ala.2001). We therefore disregard the affidavit submitted by GM.

The Stokes dealership argues that it is an Alabama corporation, that Kirk Stokes and James Stokes are Alabama residents, and that the vehicles were transported from the Bush lot in Clanton to the Stokes dealership lot in Clanton. Under this view, according to the Stokeses, the transaction can have had no substantial effect on interstate commerce.

The Stokeses, however, invite us to examine the wrong transaction to determine whether there has been a substantial effect on interstate commerce. As previously noted, the Federal Arbitration Act requires a written provision calling for arbitration in a contract evidencing a transaction involving commerce. Once this circumstance is established, a dispute arising out of the contract or transaction must be settled by arbitration. The written provision calling for arbitration appears in the relocation agreement, and the transaction to which that agreement relates is the transaction to which we must look in order to determine whether the transaction has a substantial effect on interstate commerce.

Confining ourselves, as we must, to a review of the evidence found within the four corners of the relocation agreement, we can glean that the agreement is between an Alabama corporation and a Delaware corporation operating motor divisions that manufacture a variety of automobiles, many of which will be manufactured by the Delaware corporation for resale by the Stokes dealership; that the Delaware corporation was to pay Stokes $75,000 for certain GMC assets; that Chrysler products were not be sold at the Stokes dealership location that was to be used for GM products; that the Delaware corporation was to pay Stokes $25,000 for an exclusivity agreement; that Stokes was to defend, indemnify, and hold harmless the Delaware corporation, its affiliates, and their respective members, partners, venturers, stockholders, officers, directors, employees, agents, spouses, legal representatives, successors, and assigns from and against any and all claims or causes of action arising from the agreement; and that any notices or demands required or permitted under the agreement to be sent to the Delaware corporation, were to be sent to two addresses in Detroit, Michigan. For this Court to overlook the compelling evidence of a substantial effect upon interstate commerce found within the four corners of this transaction would require us to blind our eyes to reality. Moreover, even if we were to consider only the subject matter of the promise relating to the GM vehicles allegedly occurring during the negotiations, we are confronted with evidence that one of the parties is a Delaware corporation based in Detroit, Michigan, that agreed to pay to an Alabama corporation a three percent dealer-holdback credit, advertising credit, and floor-plan interest credit on certain vehicles. Suffice it to say that the transaction substantially affects interstate commerce.

TV. Conclusion

The trial court’s order denying GM’s motion to compel arbitration is reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, JOHNSTONE,' HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . In its brief, the Stokes dealership explains the dealer-holdback credit as follows:
      "The total invoice cost of a new automobile is due to the manufacturer at the time a vehicle is ordered by a dealership — not when it is sold. Since car dealerships must have an inventory on hand through which a consumer can browse and ultimately select a vehicle, the dealership must borrow funds to pay for that inventory. The automobile manufacturer pays for financing and maintenance for the first 90 days that a new vehicle is on the dealer's lot, in the form of a 'Holdback.' Dealer Holdback is a percentage of the Manufacturer's Suggested Retail Price (MSRP) or invoice of a new vehicle that is paid to the dealer by the manufacturer to assist with the dealership's financing of the vehicle. [GM’s] Dealer Holdback is 3%. [GM] retains 3% of the MSRP and remits the Holdback amounts to the dealer on a quarterly basis. After the expiration of 90 days, the manufacturer offers the dealer a lower interest rate for 30 more days. After 30 days, a dealer must pay market rates for financing during the time that a new vehicle is sitting on the dealer's lot.”

      . The trial court’s disposition of Feeley's motion to compel arbitration is not before us.

      . Rule 28, Ala. R.App. P., was amended effective June 1, 2002. Before that amendment, Rule 28(a)(5) addressed a party’s failure to cite authority.

      . Title 9 U.S.C. § 2.