author: LYONS, Justice. SEE, Justice

text:
    ORKIN EXTERMINATING CO., INC., and John Mosley v. Willie D. LARKIN and Vivian M. Larkin.
    1012181.
    Supreme Court of Alabama.
    March 7, 2003.

      D. Taylor Flowers and Daniel F. Johnson of Lewis, Brackin, Flowers & Hall, Dothan, for appellants.
    J. Michael Rediker, Jr., and Patricia C. Diak of Haskell, Slaughter, Young & Re-diker, L.L.C., Birmingham; and Stephen T. Etheredge and Lexa E. Dowling of Buntin, Etheredge & Dowling, L.L.C., Do-than, for appellees.
   LYONS, Justice.

Orkin Exterminating Co., Inc. (“Orkin”), and John Mosley, an Orkin employee (hereinafter referred to collectively as “the Orkin defendants”), appeal from the trial court’s order enjoining the arbitration proceeding initiated by the Orkin defendants in a dispute with Willie D. Larkin and Vivian M. Larkin (“the Larkins”). Because we conclude that the Larkins’ claims fall outside the scope of the Federal Arbitration Act, we affirm.

I. Factual and Procedural History

On November 15,1999, the Larkins purchased a residence located at 779 Moores Mill Drive in Auburn from Rodney G. Allison and Leigh Allison (“the Allisons”). The Allisons had a preexisting contract with Orkin, entitled “Lifetime Subterranean Termite Retreatment Agreement” (“the termite agreement”), which provided for the treatment and eradication of subterranean termites for the residence. As part of the residential real estate sales contract entered into between the Allisons and the Larkins, the Larkins received an “Official Alabama Wood Infestation Inspection and Report,” commonly referred to as a “termite letter,” from Orkin. Mosley conducted the inspection and prepared the termite letter.

According to the Larkins’ complaint, the termite letter stated that Orkin had previously treated the residence for subterranean termites on September 29, 1997, May 5, 1998, and November 11, 1999. Because the termite letter does not appear in the record, we cannot state its date with certainty, but it presumably was issued on or after November 11, 1999, the date of the last treatment performed pursuant to the termite agreement between Orkin and the Allisons, and on or before November 15, 1999, the date of the closing. The termite letter stated that the termite agreement between Orkin and the Allisons was transferable to the Larkins and that the residence was free from any evidence of active infestation of the five specified wood-destroying organisms, including subterranean termites. The termite letter also showed the location of previous termite infestation in the residence. The Larkins allege that they purchased the residence in rebanee upon the guarantees provided by the Orkin defendants in the termite letter.

On November 23, 1999, September 13, 2000, and on August 15, 2001, Wilhe Lar-kin paid the annual fee to renew the termite agreement previously entered into between Orkin and the Allisons. The termite agreement included the following arbitration provision:

“Arbitration: Any dispute arising out of or relating to this agreement or the services performed under this agreement or tort based claims for personal or bodily injury or damage to real or personal property shall be finally resolved by arbitration administered under the commercial arbitration rules of the American Arbitration Association. This agreement involves interstate commerce; furthermore, the parties expressly agree that their mutual rights and obbgations and the conduct of any arbitration proceeding shall be controlled by the Federal Arbitration Act. The award of the arbitrator shall be final, binding, nonappealable and may be entered and enforced in any court having jurisdiction in accordance with the Federal Arbitration Act. The arbitrator shall not have the power or authority to award exemplary, treble, bquidated or any type of punitive damages.”

At some point after the residence was purchased, the Larkins claimed that the residence was infested with active termites, that the Orkin defendants withheld that fact from them, and that they would not have purchased the residence had the Orkin defendants been truthful in the termite letter about the condition of the residence. On October 25, 2001, the Larkins sued Orkin for its actions related to the termite letter, alleging breach of contract, fraud, fraudulent suppression, negligence, and fraudulent misrepresentation. The Larkins also sued Mosley, alleging fraudulent misrepresentation and fraudulent suppression. The Larkins sought compensatory and punitive damages.

The Orkin defendants filed a motion to compel arbitration, claiming that the arbitration clause in the termite agreement that it had originally entered into with the Allisons and that had been renewed by Willie Larkin was sufficiently broad to encompass the Larkins’ claims and that the “transaction at issue” involved interstate commerce. The trial court denied the motion to compel arbitration. The defendants filed this appeal.

II. Standard of Review

An appeal is the proper method by which to challenge a trial court’s denial of a motion to compel arbitration. Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). “[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999); Ex parte Southern United Fire Ins. Co., 843 So.2d 151 (Ala.2002).

III. Analysis

A Overview of Contentions

The Larkins contend that their claims are not subject to the arbitration provision included in the termite agreement because, they say, they never agreed to arbitrate the claims asserted in their complaint. Alternatively, the Larkins argue that their claims are outside the scope of the arbitration clause and the scope of the Federal Arbitration Act (“the FAA”). Finally, the Larkins argue that the underlying dispute does not affect interstate commerce and that, even if it did, the arbitration clause in the termite agreement is unconscionable.

The Orkin defendants argue that the Larkins’ claims are subject to arbitration because, they say, the arbitration clause in the termite agreement is sufficiently broad to apply retroactively to the Larkins’ claims made pursuant to the termite letter. The Orkin defendants cite this Court’s opinion in Ex parte Morris, 782 So.2d 249 (Ala.2000), for the proposition that broad arbitration provisions can have retroactive application. They contend that the termite agreement substantially affects interstate commerce so as to invoke the FAA.

The Orkin defendants have “the burden of proving the existence of a contract requiring arbitration and proving that that contract involves a transaction that substantially affects interstate commerce.” Mostella v. N & N Motors, 840 So.2d 877, 880 (Ala.2002); Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002); Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000).

B. The Existence of an Agreement to Arbitrate

The Larkins initially contend that no contract to compel them to arbitrate their claims exists because they never signed the termite agreement and because, therefore, the termite agreement lacks mutuality of assent. We disagree.

The mere fact that the Larkins did not sign the termite agreement does not preclude its enforceability. Ex parte Rush, 730 So.2d 1175, 1178 (Ala.1999). Absent a signature, “the existence of a contract may ... be inferred from other external and objective manifestations of mutual assent.” 730 So.2d at 1178. In Rush, the Rushes sued a termite company based upon the company’s performance under a termite agreement similar to the one in this case. 730 So.2d at 1176. Under the agreement, the company agreed to protect the Rushes’ residence from subterranean termites, to reinspect the residence periodically, and to repair damage from any new infestation. 730 So.2d at 1176. The Rushes paid the annual renewal fee, made a claim under the agreement, and supervised the company’s repairs to their residence. 730 So.2d at 1178. We held that the Rushes’ conduct, absent their signature, evidenced an assent to the termite agreement, including its arbitration clause. 730 So.2d at 1178. Moreover, in Morris, supra, we held that the arbitration clause in the termite agreement was not lacking in consideration because the Morrises “benefited from the terms of the [termite] agreement by accepting additional repairs to their home, as well as by being paid for incidental expenses they incurred during the repair period, including cleaning costs and the cost of alternative housing.” 782 So.2d at 253.

The Larkins contend that no mutuality of assent existed because, they say, unlike the homeowners in Rush and Morris, they received no benefit in the form of repairs or treatments under their termite agreement with the Orkin defendants. Generally, mutuality does not necessarily mean “equal rights under a contract, or that each party is entitled to the same rights or covenants under the contract. So long as there is a valuable consideration moving from one side to the other, or there are binding promises on the part of each party to the other, there is adequate consideration for a valid contract.” Marcrum v. Embry, 291 Ala. 400, 403, 282 So.2d 49, 52 (1973).

It is undisputed that the Larkins, by paying the annual renewal fees, assumed the termite agreement entered into between Orkin and the Allisons. See Morris, 782 So.2d at 253. According to the affidavit of Verne Sanford, the office manager of Orkin’s Montgomery office, Willie Larkin paid the annual renewal fee on November 23, 1999, September 13, 2000, and August 15, 2001. As was the case in Morris, the Larkins “ratified” the termite agreement by paying the renewal fees. 782 So.2d at 253. Moreover, the termite agreement provides that “Orkin will retreat the structure for Subterranean Termites at no cost to [the] Customer if an infestation of Subterranean Termites is found.” The termite agreement also provides that “Orkin shall reinspect the treated structure as deemed necessary by Or-kin or requested by the Customer.” Therefore, the obligation of the Orkin defendants to re-treat and reinspect the residence is a binding promise in return for receipt of the Larkins’ payment of the annual fee to renew the termite agreement. The fact that the Larkins had received no benefit from the termite agreement in the form of actual repairs or treatment is immaterial to establish mutuality. See Marcrum, 291 Ala. at 406, 282 So.2d at 54 (finding that the parties’ promises established mutuality despite the fact that the promises were not coextensive).

C. The Scope of the Arbitration Provision

The Larkins alternatively contend that even if they are contractually bound by the arbitration clause in the termite agreement, they cannot be compelled to arbitrate their claims, which they say arose from actions related to the termite letter. The Larkins contend that their claims are not within the scope of the arbitration provision in the termite agreement Orkin initially issued to the Allisons and that the Larkins subsequently renewed.

The United States Supreme Court has held that “[s]tates may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause ‘upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (quoting 9 U.S.C. § 2) (emphasis omitted). It is well established that “the interpretation of an arbitration agreement within the scope of the [FAA]” is governed by “general state-law principles of contract interpretation.” Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). “Agreements to arbitrate are essentially creatures of contract,” and ordinary contract rules govern the interpretation of arbitration provisions. Blount Int'l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344, 1346 (Ala.1993). See also Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 275 (Ala.1999) (“In reviewing arbitration provisions, we apply contract principles.”); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

Applying general contract principles, we have compelled the arbitration of disputes arising out of a previous transaction when it was clear that the parties in a subsequently executed arbitration agreement intended to arbitrate such disputes based upon the broad scope of the arbitration clause at issue. Compare Morris, supra, 782 So.2d at 253; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kirton, 719 So.2d 201 (Ala.1998) (the language of the arbitration provision indicated that disputes related to prior transactions were to be arbitrated); and Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 396, 399 (Ala.2000) (“When an arbitration clause clearly indicates that disputes related to prior transactions are to be arbitrated, those disputes must be arbitrated when one of the parties to the transaction demands arbitration.”), with Kenworth, supra, 745 So.2d at 275 (concluding that the language of the arbitration provision failed to indicate an intention of the parties to arbitrate a prior transaction), and Terminix Int’l Co. v. Jackson, 723 So.2d 555, 558 (Ala.1998) (concluding that the language of the arbitration clause did not encompass actions related to a termite letter issued before the document containing the arbitration clause was effective). The scope of the arbitration clause is a question of the intent of the parties. Kenworth, 745 So.2d at 275 (in reviewing an arbitration provision a court must determine whether there was a “meeting of the minds”).

The United States Court of Appeals for the Eleventh Circuit has also allowed parties to arbitrate preexisting controversies when the language of the arbitration provision is sufficiently broad to encompass the prior claims. Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1028 (11th Cir.1982) (finding that the ap-pellee’s claims, which occurred before the arbitration agreement was executed, were arbitrable because “[b]y its own terms the contract between the parties covers not only disputes arising out of the agreement, but in the disjunctive includes ‘any controversy between us arising out of your business’ ”) (emphasis in Belke omitted), overruled on other grounds, Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).

In salient part, the arbitration clause in the termite agreement provides:

“Any dispute arising out of or relating to this agreement or the services performed under this agreement or tort based claims for personal or bodily injury or damage to real or personal property shall be finally resolved by arbitration ...

(Emphasis added.) The Orkin defendants argue that the arbitration provision in the termite agreement is “virtually identical” to the arbitration clause we upheld in Morris, supra. In Morris, the Morrises received a termite letter from the defendant, Terminix, when they purchased a residence. 782 So.2d at 250. The Morrises later signed a termite agreement with Ter-minix; that agreement contained the following arbitration clause:

“ ‘The Purchaser and Terminix agree that all matters in dispute between them, including but not limited to any controversy or claim between them arising out of or relating to this Agreement or to the identified property [i.e., the Morrises’ home] in any way, whether by virtue of contract, tort or otherwise, shall be settled exclusively by arbitration.’ ”

782 So.2d at 251 (bracketed language original; emphasis added). As did the Lar-kins, the Morrises discovered termite damage after they had purchased their residence, and they sued Terminix, alleging misrepresentation and negligence or wantonness based upon Terminix’s conduct in issuing the termite letter. 782 So.2d at 251. In Morris, we acknowledged that “ ‘an arbitration provision will be enforced in Alabama to the extent that enforcement is required by federal law.’ ” 782 So.2d at 253 (quoting Green Tree Fin. Corp. v. Shoemaker, 775 So.2d 149, 150 (Ala.2000)). We held that the Morrises’ claims were “matters in dispute” that arose out of or that were related to the “identified property,” and that, thus, their claims arising out of the termite letter were subject to arbitration. 782 So.2d at 253.

Whereas the arbitration agreement in Morris related to all “matters of dispute” involving the “identified property ... by virtue of contract, tort or otherwise,” 782 So.2d at 251, the arbitration provision in the termite agreement in this case covers “tort based claims for personal or bodily injury or damage to real or personal property.” 782 So.2d at 253 (emphasis added). Therefore, at first blush it appears that just as the arbitration clause in Morris was sufficiently broad to compel arbitration of the Morrises’ claims related to the termite letter, the arbitration provision in the present action is sufficiently broad to encompass, at a minimum, the Larkins’ tort-based claims.

However, the present action is distinguishable from the action in Morris as well as in other cases in which we have compelled arbitration of disputes arising from previous transactions based upon the broad scope of a later-executed arbitration clause. See, e.g., Kirton, supra, 719 So.2d at 204; Thompson, supra, 757 So.2d at 399-400.

D. The Scope of the FAA

The Larkins also contend that, regardless of the scope of the arbitration provision, their claims fall outside the scope of the FAA because, they contend, the FAA “only addresses the validity of arbitration provisions that relate to controversies that arise subsequent to the contract containing the arbitration agreement.” Larkins’ brief at p. 20.

Section 2 of the FAA 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, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2 (emphasis added). Our prior decisions have not addressed either the “thereafter arising” or the “existing controversy” language of § 2 of the FAA. Therefore, our prior decisions deal with principles of contract interpretation, focusing on the scope of the arbitration agreement. The Larkins insist that we must also deal with the scope of the FAA because, if the FAA is not applicable, the enforcement of the arbitration provision is governed by State law. Under the express language of the FAA, parties can agree to arbitrate future controversies or existing controversies that arise out of the contract or transaction at issue. 9 U.S.C. § 2.

The gravamen of the Larkins’ complaint involves the Orkin defendants’ actions in issuing the termite letter, a document that did not contain an arbitration provision. The Larkins’ theories of breach of contract, fraud, fraudulent suppression, negligence, and fraudulent misrepresentation relate exclusively to the termite letter. The termite letter was issued before the Larkins assumed the termite agreement, and the termite agreement is the only document containing a provision calling for the arbitration of disputes. Consequently, the Orkin defendants’ conduct with reference to the termite letter upon which the complaint is entirely based cannot be subject to arbitration under the first part of 9 U.S.C. § 2, which enforces a “written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of [the contract containing the provision for arbitration].” 9 U.S.C. § 2 (emphasis added). The complaint describes a controversy that did not arise out of the termite agreement.

In their brief to this Court, the Orkin defendants argue that “the fact that the termite [agreement] [was] entered into after the ‘termite letter’ [was] prepared is of no legal significance.” We disagree. The Orkin defendants cite no authority for such a broad interpretation of the “thereafter arising” language of § 2 of the FAA, and we know of no authority that could provide such a broad interpretation. It would be a strained reading of the FAA as well as circuitous logic to make a dispute over arbitrability a dispute “thereafter arising out of’ a contract containing the arbitration provision.

The second portion of 9 U.S.C. § 2 provides for enforcement of “an agreement in writing to submit to arbitration an existing controversy arising out of [a contract involving interstate commerce].” Although this Court has not defined “existing controversy arising out of such a contract,” cases from other jurisdictions upholding agreements to arbitrate under the FAA and the Federal Securities Act because of an existing controversy have involved facts that indicate that at the time the arbitration agreement was entered into, the parties had knowledge or an understanding of the existing controversy. Compare Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir.1972) (holding that the plaintiff was required to arbitrate his claim, which accrued before he became bound by the arbitration rules of the New York Stock Exchange, because he was fully aware of the existing claim at the time he became a member of the Exchange and became bound by its arbitration rules), with De Lancie v. Birr, Wilson & Co., 648 F.2d 1255, 1258 (9th Cir.1981) (holding that that plaintiffs claims, which accrued before he became bound by the arbitration rules of the Pacific Stock Exchange, were not arbitrable because the record contained “little, if any” evidence to show that the plaintiff knew of the existing controversy when he became bound by the arbitration rules).

In the present action, the Lar-kins claim that the Orkin defendants “improperly and inadequately” treated the residence within four days before the issuance of the termite letter. However, they claim that they did not learn that the Orkin defendants were “grossly deficient” in their termite treatments “until some time” after they purchased their residence. Although the Larkins contend that the Or-kin defendants knowingly concealed termite damage, nothing in the record indicates that the Orkin defendants or the Larkins were aware of the allegedly inadequate termite treatment before the Lar-kins assumed the termite agreement and at the time the Larkins renewed the termite agreement in 2000 and 2001. In fact, we cannot determine whether either party had actual knowledge of the alleged improper termite treatment until the complaint was filed in the present action on October 25, 2001, over two months after the termite agreement was renewed for the last time. The Orkin defendants, as the parties compelling arbitration, have the burden of proving the existence of a contract calling for arbitration of the claims presented. Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220 (Ala.2002). Incumbent upon the Orkin defendants was the obligation to offer evidence that would trigger the applicability of the FAA to the contract. Based upon the silent record, we cannot conclude that a controversy existed when the termite agreement was first assumed and was then subsequently renewed; therefore, we cannot assume coverage under the FAA.

We emphasize that our holding should not be interpreted as overruling our prior decisions dealing with the scope of an arbitration agreement in a setting where coverage under the FAA was not addressed. While the scope of the FAA was not addressed in Morris, supra, several factors indicate that a controversy existed at the time the Morrises signed the termite agreement that would bring the Morrises’ claims within the scope of the FAA. After the termite letter was issued, yet before they entered into the termite agreement with Terminix, the Morrises discovered substantial termite infestation. Morris,

782 So.2d at 250. Furthermore, before the termite agreement was signed by the Mor-rises, Terminix paid for the damage to the residence. 782 So.2d at 250. Unlike the substantial contacts between the Morrises and Terminix in Morris, the record in the present action does not indicate that the Orkin defendants made any repairs to or treated the Larkins’ residence pursuant to the termite agreement before the termite agreement was assumed by the Larkins, or at any time thereafter. Therefore, even though coverage under the FAA was not addressed in Morris, it appears that a controversy existed at the time the termite agreement was signed by the Morrises because both parties had knowledge of the termite infestation and the damage from the infestation at the time the agreement was signed.

We recognize that “ ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration SouthTrust Sec., Inc. v. McClellan, 730 So.2d 620, 622 (Ala.1999) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25, 103 S.Ct. 927). However, the rule of construction in favor of arbitration does not give us authority to rewrite the scope of the FAA. We are bound by the express language of § 2 because “where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction.” James v. Todd, 267 Ala. 495, 504, 103 So.2d 19, 27 (1957); State v. Bay Towing & Dredging Co., 264 Ala. 187, 189, 85 So.2d 890, 892 (1955).

Justice See’s special concurrence is premised on the theory of the exclusivity of a remedy in contract and thus the unavailability of a remedy in tort. The special concurrence asserts that the Larkins have failed to plead any claims that indicate that the Orkin defendants owed them a duty. However, this Court has recognized liability of a person in tort for furnishing information for the guidance of others in their business transactions when that person can reasonably anticipate that a third party would rely on that information. See Fisher v. Comer Plantation, Inc., 772 So.2d 455 (Ala.2000) (recognizing the adoption of the Restatement (Second) of Torts § 552 (1977) in Boykin v. Arthur Andersen & Co., 639 So.2d 504 (Ala.1994), and holding that a real estate appraiser had a duty to third parties that the appraiser intended to influence and to third parties that the appraiser knew his client intended to influence by means of the appraisal). Moreover, the analysis of the Larkins’ contract claim in the special concurrence asserts that a contract claim, if properly pleaded, would be arbitrable because the termite letter was provided “according to the terms of [Orkin’s] agreement [containing an arbitration clause] with [the Alli-sons].” 857 So.2d at 109. However, nothing in the termite agreement between the Allisons and Orkin calls for the issuance of an “Official Alabama Wood Infestation Inspection and Report,” also known as a termite letter, to assist the Allisons in the sale of their home.

TV. Conclusion

Because the Larkins’ claims do not involve a future controversy arising out of the termite agreement, and because the Orkin defendants have not shown that there was a controversy existing when the termite agreement was assumed and later renewed, § 2 of the FAA does not require arbitration. The trial court properly denied the Orkin defendants’ motion to compel arbitration.

AFFIRMED.

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

SEE, J., concurs specially.

MOORE, C.J., concurs in the result.

STUART, J., dissents.

SEE, Justice

(concurring specially).

I concur specially.

The main opinion states:

“The gravamen of the Larkins’ complaint involves the Orkin defendants’ actions in issuing the termite letter, a document that did not contain an arbitration provision. The Larkins’ theories of breach of contract, fraud, fraudulent suppression, negligence, and fraudulent misrepresentation relate exclusively to the termite letter.”

857 So.2d at 105. The main opinion concludes that because the termite letter does not contain an arbitration clause, Orkin may not compel the Larkins to arbitrate their claims arising from the termite letter. The main opinion also states that the Court disagrees with the Orkin defendants’ argument “that ‘the fact that the termite [agreement] [was] entered into after the “termite letter” [was] prepared is of no legal significance.’ ” 857 So.2d at 105.

I agree with the Orkin defendants’ argument that, had the Larkins presented facially valid claims concerning the termite letter, then the fact that the Larkins entered into a termite agreement after the termite letter was issued would be of no legal significance in determining whether the Larkins were compelled to arbitrate their dispute with Orkin, because the termite letter arises from a contract with a valid arbitration clause. The Larkins, however, have failed to state a valid claim against Orkin arising from the termite letter; therefore there is nothing for Orkin and the Larkins to arbitrate.

The Larkins state in their complaint that they entered into a real-estate purchase contract with the Allisons. Paragraph 16 of the Larkins’ complaint describes the circumstances that give rise to the Larkins’ relationship with Orkin:

“On or about November 15, 1999, [the Larkins], as part of the Residential Real Estate Sales Contract entered into by and between [the Larkins] and Defendants, Rodney G. Allison and Leigh Allison, received, with the intent that they should rely thereon, an Official Alabama Wood Infestation Inspection and Report [the ‘termite letter’] from Orkin for and relating to the residence.”

Elsewhere in the complaint the Larkins make conclusory statements that Orkin breached legal duties arising from the termite letter; nowhere do the Larkins state that they had a contractual relationship with Orkin apart from any relationship created by the termite letter. Nothing in the complaint indicates that the Larkins had any direct contact with Orkin in regard to the termite letter before closing their real estate transaction with the Alli-sons.

Justice Harwood’s special concurrence in Allied-Bruce Terminix Cos. v. Butler, 816 So.2d 9, 17-18 (Ala.2001)(Harwood, J., concurring specially), explains this circumstance:

“The same legal analysis was applied by this Court in a very similar situation, albeit not one involving an issue of arbitration. In Rumford v. Valley Pest Control, Inc., 629 So.2d 628 (Ala.1993), the real estate purchase agreement for a residence required the sellers to procure and to pay for a letter stating that the property was free and clear of termite infestation and damage. The sellers, who had a preexisting service contract with a pest-control company, engaged that company to inspect the house and to issue the required letter, which the company did, and the letter was produced at the loan closing. Subsequently, the purchasers discovered termite infestation. They sued the sellers and the pest-control company, alleging various claims of fraud and breach of contract. This Court agreed that the purchasers were due to be accorded the status of third-party beneficiaries to the contract between the sellers and the pest-control company, and reversed the summary judgment the trial court had entered in favor of the pest-control company.
“In the present case, likewise, the contract providing for the inspection and issuance of the Report was solely between Mr. Ritz and Terminix Service. Thus, the Butlers can maintain their claim against Terminix Service for breach of contract only by presenting themselves as third-party beneficiaries of the contract between Terminix Service and the Ritzes, and that contract relates back to the Agreement [that contained an arbitration clause].”

The Larkins did not have a contractual relationship with Orkin until after the closing, when the Larkins and Orkin subsequently signed their termite agreement. The Larkins fail to plead any claims that would cause Orkin to owe them a duty.

The Larkins argue in their brief that “the inspection report is a ‘stand alone’ document which can be issued without any subsequent purchase of termite protection services.[] Similarly, Orkin will issue a termite guarantee even if a different company issued the Wood Infestation Inspection Report.” That allegation, while perhaps true, is irrelevant. The Larkins admit in their complaint that the Allisons procured the termite letter from Orkin. The Larkins admit in their brief that the Allisons had a contract with Or-kin. Therefore, hypothetical arguments about things Orkin might do are irrelevant in determining what kind of relationship Orkin had with the Larkins. In this case, Orkin provided a termite letter for an existing customer according to the terms of its agreement with that customer. The Orkin customer, the Allisons, provided that letter to the prospective buyer of their home, the Larkins.

Either the Larkins have no relationship with Orkin and therefore Orkin owes them no duty, or, alternatively, there is a relationship between the Larkins and Orkin that derives from the Allisons’ contract with Orkin, in which case the Larkins are third-party beneficiaries of the Allisons’ contract and are, therefore, obliged by the terms of the contractual relationship from which they seek to benefit to arbitrate their claims with Orkin. See Ex parte Stamey, 776 So.2d 85, 92 (Ala.2000)(“third-party beneficiary cannot both claim the benefit of the contract and avoid the arbitration provision contained within that contract”).

I,therefore, concur with the main opinion that Orkin is not entitled to compel arbitration and that the trial court’s judgment is due to be affirmed because “the Larkins’ claims do not involve a future controversy arising out of the termite agreement.” 857 So.2d at 107. I reach this conclusion because the Larkins have presented no valid claims against Orkin arising from the termite agreement.

      . The Larkins also sued Sandy Stinson, the real-estate agent who had sold them the residence; Gloria Nicholson, the real-estate broker for the sale of the residence, both individually and d/b/a First Realty; and Jennings Construction Company, Inc., a company that had inspected the residence before the closing. These parties, however, are not involved in this appeal.

      . Our previous cases do not address the effect of the timing of the occurrence of the dispute in relation to the time of execution of the agreement containing the arbitration provision on the applicability of the FAA. See Part III.D.

      . "[I]t is neither this Court’s duty nor its function to perform an appellant's legal research.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998); Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 503 n. 5 (Ala.1999).

      . The FAA creates a "body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [FAA]." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

      . "Section 8-1-41(3), Ala.Code 1975, prohibits specific performance of pre-dispute agreements to arbitrate,” thereby making void any agreement to arbitrate future, as opposed to present, disputes. Ex parte Kampis, 826 So.2d 819, 824 (Ala.2002); McConnell Auto. Corp. v. Jackson, 849 So.2d 159, 170 n. 9 (Ala.2002) (See, J., dissenting). Therefore, the Larkins could not be compelled to arbitrate their claims under State arbitration law because, for all that appears, a "present” controversy did not exist at the time they assumed or renewed the termite agreement.

      . The Larkins allege both contract and tort claims. The Larkins might argue under Fisher v. Comer Plantation, Inc., 772 So.2d 455 (Ala.2000), that Orkin owed them some kind of third-party duty. Such a claim, however, requires the Larkins to seek the benefit of the Allisons’ relationship with Orkin.

      . The Larkins offer no facts in support of the proposition that Orkin will issue a termite letter to a party who has not signed an arbitration agreement.

      . When evaluating whether a party has a duty to speak, we must consider several factors: (1) the relationship between the parties: (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff's opportunity to ascertain the fact; (5) customs of the trade; and (6) other relevant circumstances. State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 843 (Ala.1998). Superior knowledge of a fact, by itself, does not give rise to a duty to disclose. Id. Nor does mere silence constitute fraud, unless the party remaining silent has a duty to disclose. Keck v. Dryvit Sys., Inc., 830 So.2d 1 (Ala.2002). The Larkins did not have a direct contractual relationship with Orkin until after the closing. Orkin, in accordance with its contract with the Allisons, delivered a termite letter to them; the Larkins, therefore, knew, before closing, about prior termite activity in at least two areas of the home. And the Larkins had the opportunity to hire an independent inspector to inspect for termites before closing. Therefore, Orkin did not owe any further duty of disclosure to the Larkins.


source: Caselaw Access Project

author: THOMPSON, Judge. YATES, Presiding Judge,

license: Public Domain

text:
    F.P. and R.P. v. J.K.M. and S.L.M.
    2991374.
    Court of Civil Appeals of Alabama.
    Aug. 31, 2001.

      Amardo Wesley Pitters, Montgomery, for appellants.
    John A. Nichols of Lightfoot & Nichols, Luverne, for appellees.
   THOMPSON, Judge.

F.P. and R.P. (the “paternal grandmother”) appeal from a judgment that denied their joint petition for custody of F.P.’s minor child, terminated his parental rights to the child, and approved the adoption of the child by J.K.M. and S.L.M. (the “adoptive parents”).

On July 1, 1999, F.P. petitioned the juvenile court for a determination that he was the father of the child and for a stay of adoption proceedings that he said he believed were pending in the Crenshaw County Probate Court.

On July 12, 1999, the adoptive parents filed in the probate court a petition to adopt the child. On July 13, 1999, the probate court entered an interlocutory order awarding custody of the child to the adoptive parents, pending a dispositional hearing scheduled for December 1999.

In December 1999, F.P. filed a second motion in the juvenile court seeking to have his paternity of the child judicially determined; F.P. stated in that motion that paternity tests had established his paternity of the child. On January 5, 2000, the trial court entered an order determining him to be the biological father of the child. However, on January 19, 2000, the trial court, apparently ex mero motu, entered an order in which it set aside its January 5, 2000, order and scheduled a hearing to consider the issue of the paternity of the child.

On April 10, 2000, F.P. filed in the probate court a motion seeking to set aside the adoption proceedings and the order awarding the adoptive parents custody of the child. On April 20, 2000, the probate court transferred the pending adoption action to the juvenile court.

Also on April 10, 2000, F.P. and the paternal grandmother filed in the juvenile court an “amended petition for custody,” in which they sought joint custody of the child. On April 14, 2000, the adoptive parents petitioned to terminate F.P.’s parental rights.

The juvenile court (hereinafter the “trial court”) conducted an ore tenus hearing on April 28, 2000. On September 8, 2000, the trial court entered a judgment that, among other things, terminated F.P.’s parental rights, denied F.P. and the paternal grandmother’s joint petition for custody of the child, and granted the adoptive parents’ petition to adopt the child. F.P. and the paternal grandmother appealed.

The facts are as follows: The minor child, who was born on July 6, 1999, is biracial. B.S., the child’s mother, and F.P. were both 17 years old and attended the same high school at the time of the child’s birth. The mother and F.P. had dated while in high school, but they were unable to date “openly” because the mother’s family did not approve of the relationship. The mother testified that her mother had asked her to leave home after she became pregnant, at least in part because she had become pregnant by a person of another race.

The mother testified that in October 1998 she told F.P. that she was pregnant and that after that she and F.P. did not continue to date. The mother testified that she “[did not] know” what happened to the relationship, only that, after she informed F.P. of her pregnancy, “[they] just stopped seeing each other.” It is undisputed that after learning of the mother’s pregnancy, F.P. offered the mother no emotional or financial support and made no effort to contact her.

The paternal grandmother took the mother to two prenatal medical appointments. The mother testified that, at the paternal grandmother’s request, she wrote a letter stating that she wanted the paternal grandmother to have custody of the baby after it was born. The mother testified at the April 2000 hearing that she thought the child’s best interests would be served by living with the adoptive parents.

At the time of the hearing, F.P. was attending college 150 miles from his family’s home and had a part-time job at which he earned $300 per month. He testified that his mother provided the majority of his support. He returns to his mother’s home on weekends.

F.P. testified that he had never seen the child. He and the paternal grandmother went to the hospital to visit the child after its birth. The paternal grandmother testified that they were unable to see the child because the child was not “available” because he had just been returned to the nursery. F.P. testified that he made no further attempt to see or visit the child, and he did not ask the mother about the child. When asked why he did not attempt to see, or inquire about, the child, F.P. responded by saying he “[didnot] know.”

The adoptive parents took the child home from the hospital. F.P. testified that he first learned three weeks after the child’s birth that the mother did not have custody of the child. F.P. testified that another two weeks passed before he spoke with the mother about the child; he admitted that the mother had contacted him on that occasion.

The adoptive parents’ home address is listed in the petition for adoption. Other information, such as their home and work telephone numbers and directions to their home, is contained in the documents filed in support of the adoption petition. Although F.P. admitted that he knows the name of the Florida town in which the adoptive parents and the child live, he testified he does not know where in Florida that town is located.

Further, F.P. made no attempt to contact the adoptive parents until the Saturday before the hearing. At that time, he telephoned the adoptive parents’ home and spoke to a relative who was babysitting the child. F.P. testified he asked the relative if he could come see the child, and the relative answered “no.” F.P. testified that he made no further attempt to contact the adoptive parents, and, when asked why he did not call back to speak with the adoptive parents, he responded, “I don’t know.”

F.P. testified that he did not provide support for the mother during the pregnancy because she did not ask for support; he also testified that he had not provided any support during the time the child has been in the custody of the adoptive family because the adoptive family did not request such support. We note that at no time during his contest of the adoption proceedings did F.P. ask a court to determine a child-support obligation or make an offer to pay some amount of child support into the court. The mother and the adoptive parents have been the sole providers of support for the child.

F.P. has another child by his current, 16-year-old girlfriend. He stated that he was providing financial and emotional support for the mother of that child. The mother of that child testified that F.P. gave her money “if I needed it,” but she admitted on cross-examination that F.P. had not given her as much as $50 in support for her child.

F.P. testified that he wanted custody of the child “[b]ecause he is my son. I do not want anyone else raising him. I think it is in [the child’s] best interests [that] he be with his natural father, not someone else.” However, it is undisputed that F.P. wants the child to live with the paternal grandmother while F.P. attends college in a town over 150 miles from his mother’s home. F.P. testified that if he had the child he would see the child on weekends. The paternal grandmother’s sister and a cousin testified that, if F.P. was awarded custody of the child, they were willing to care for the child while the paternal grandmother worked.

The paternal grandmother testified that she would like to have custody of the child, and, in the alternative, that she would take care of the child for F.P. while he attends college. The paternal grandmother testified that she works, but that one of her cousins or a neighbor could take care of the child during the day while she is at work. Both the cousin and the neighbor testified they were willing to care for the child while the paternal grandmother was at work. F.P.’s siblings testified that they were willing to support F.P. financially and assist him with the child; they did not seek custody or offer to take the child.

Teresa Saunders, a social worker for the Department of Human Resources, testified that the probate court asked her to complete a report in conjunction with the petition for adoption. Saunders testified that she was asked to obtain information regarding the medical and social histories of the child’s natural parents. Saunders testified that she interviewed the mother and obtained the requested information from her, but that the mother informed her that she did not know the whereabouts of the child’s father.

Sandra Walker, a clinical specialist who counseled the mother during her pregnancy, testified that she had known the mother for all of the mother’s life and that she had known F.P. during his “school career.” Walker testified that she counseled the mother during her pregnancy while the mother considered her available options. Walker was the mother’s counselor; therefore, she testified, it was not appropriate for her to attempt to counsel F.P.

Walker facilitated the adoption of the child through the Christian Adoption Agency. Walker testified that she did not consider F.P. or his family for an adoptive placement for the child because she believed F.P. had rejected both the mother and the baby. The mother reported to Walker that F.P. had rejected her, and Walker had witnessed an incident in which she said F.P. had rejected and “shunned” the mother.

Walker also testified that in spring 1999, before the birth of the child, the mother, her mother and uncle, F.P., the paternal grandmother, and the parties’ attorneys met with her and a representative of the adoption agency to discuss the mother’s plan to place the child for adoption. Walker testified that neither F.P. nor his mother indicated that his family should be explored as a possible placement for the child; that nobody at the meeting raised an issue as to whether the adoption should proceed; and that after the meeting, she believed she had no reason to discontinue the adoption process.

The adoptive parents each testified that they had a loving relationship with the child. They described their home, their financial ability to care for the child, and the support they receive from their friends and the members of their church.

The trial court’s judgment stated, in part:

“The Court having considered all of the evidence presented ore tenus, arguments of counsel, and having read and studied briefs filed on behalf of [the adoptive parents] and [F.P.], having consulted in chambers with the guardians ad litem for the minor child and both minor parents, and subsequent thereto having consulted in chambers with the guardian ad litem for the child, the Court is satisfied from clear and convincing evidence adduced that the facts alleged in the petition for adoption are true; that the adoptee has been in the actual physical custody of the petitioners for a period of sixty (60) days or more; that the petitioners are suitable to be the parents of said adoptee and that they desire to establish a parent/child relationship with the adoptee; that the evidence clearly supports [a finding] that [F.P.] has impliedly consented or relinquished his parental rights pursuant to Section 26-10A-9, Ala.Code 1975, and further that his parental rights should be terminated pursuant to Section 26-18-7, Ala.Code 1975; that the best interest of the adoptee will be served by granting the petition to adopt, and that a change of name of the adoptee and a change of guardianship to the [adoptive parents] is proper.”

On appeal, F.P. first argues that the trial court erred in determining that he had impliedly consented to the adoption of the child. Section 26-10A-9, Ala.Code 1975, governs implied consent to an adoption or voluntary relinquishment for adoption.

“A consent or relinquishment required by Section 26-10A-7 may be implied by any of the following acts of a parent:
“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 80 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pen-dency of the adoption proceeding under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.”

§ 26-10A-9, Ala.Code 1975.

The appellants argue that, because F.P.’s paternity was not established before the child’s birth, he was not a “parent” of the child who owed any rights or duties to the child, and therefore, that his prebirth conduct toward the child’s mother could not constitute implied consent to the adoption pursuant to § 26-10A-9, Ala. Code 1975. We cannot agree. Further, the appellants did not raise this issue before the trial court. An appellant may not raise an issue for the first time on appeal; this court may not consider a theory or issue not pleaded or argued before the trial court. Abbott v. Hurst, 643 So.2d 589 (Ala.1994); Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). F.P. has not demonstrated that the trial court erred in its application of § 26-10A-9, Ala.Code 1975.

The next issue raised in the appellants’ brief on appeal is whether the evidence in the record supports the trial court’s termination of F.P.’s parental rights. The trial court’s finding that F.P.’s conduct amounted to an implied consent to the adoption, pursuant to § 26-10A-9, Ala. Code 1975, is sufficient to support the judgment approving the adoption, see §§ 26-10A-7 and -9, Ala.Code 1975, and we affirm the judgment on that basis. However, out of an abundance of caution, we address F.P.’s argument regarding the termination of his parental rights pursuant to § 26-18-7, Ala.Code 1975.

Every parent has a prima facie right to custody of his or her child, and that right can be overcome only by a showing of clear and convincing evidence indicating that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Res., 636 So.2d 419 (Ala.Civ.App.1994). On appeal, the trial court’s termination of a parent’s parental rights is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. Id. The paramount consideration in a proceeding to terminate parental rights is the best interests of the children involved. A.R.E. v. E.S.W., 702 So.2d 138 (Ala.Civ.App.1997).

In its judgment, the trial court stated that it found, through clear and convincing evidence, that F.P.’s parental rights should be terminated pursuant to § 26-18-7, Ala. Code 1975. That section reads: parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

“Grounds for termination of parental rights; factors considered; presumption arising from abandonment.
“(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child;
“(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling;
“(4) Conviction of and imprisonment for a felony;
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent;
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“[certain named offenses]
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
“(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a re-buttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.”

§ 26-18-7, Ala.Code 1975.

The evidence in the record makes it clear that F.P. provided the mother of his child no emotional, financial, or other form of support during her pregnancy. He attended a meeting at which the mother’s plan to place the child for adoption was discussed; Walker (the counselor) testified that neither F.P. nor any member of his family objected at that meeting to placing the child for adoption. After the child was born, F.P. made no inquiries about the child. He testified that he first learned, three weeks after the child’s birth, that the child was with the adoptive parents and that he obtained that information from his mother. The adoption petition contained all necessary identifying and contact information regarding the adoptive parents. F.P. made no effort to contact the adoptive parents. He answered “I don’t know” when asked why he had made no effort to inquire about the child or to contact the adoptive parents. The appellants state in their brief on appeal that the adoptive parents “prevented” F.P. from developing a relationship with his son. The record does not support that assertion. Since July 12, 1999, F.P. has had all of the information necessary to contact the adoptive parents regarding the child. F.P.’s first attempt to contact the adoptive parents occurred on the Saturday before the April 28, 2000, hearing in this matter. As a result of F.P.’s attempt to contact them immediately before the hearing, the adoptive parents asked their attorney to send F.P.’s attorney a letter indicating that they “would prefer” not to have contact with F.P.; their attorney sent such a letter, dated April 25, 2000 — three days before the hearing in this matter. It cannot be said that that letter prevented F.P. from making an attempt to contact the adoptive family during the 10 months in which the child was in their custody before F.P. made his only effort to contact them. We note that the adoptive parents testified that they were willing to have future contact with the mother, but that, because F.P. was contesting their adoption of the child, they were unsure whether they wanted to have contact with him in the future.

In his brief to this court, F.P. attributes his failure to offer any support for the child to his “poverty.” He cites In re Hickman, 489 So.2d 601 (Ala.Civ.App.1986), for the proposition that in the absence of abuse or a lack of caring, poverty is not a reason to take a child from his parents. However, at trial, F.P. did not state that he was unable to provide support for the child. He testified that he did not provide any support to the child’s mother because, he says, she did not ask for any support. He testified that if he had had an “open relationship” with the adoptive parents, then he would have offered and provided support for his child. However, F.P. made no effort to seek any relationship with the adoptive parents, until only days before the hearing. During his only attempt to contact the adoptive parents, F.P. spoke with a relative who he believed was just a babysitter; F.P. made no additional effort to contact, or to speak with, the adoptive parents.

Further, F.P. sought custody of the child, but stated that if awarded custody, the child would not live with him, but, rather, would be reared by F.P.’s family while F.P. continues his college education in a town 150 miles from his family’s home. The record clearly demonstrates that F.P. has made no effort to adjust any aspect of his life to accommodate the needs of the child.

In his brief on appeal, F.P. discusses the questions whether the court had viable alternatives to the termination of his parental rights, by stating only that “he has presented the court with viable alternatives to his son being adopted, namely that of having his entire familyt’s] support pending his completion of college.” Thus, F.P. argues on appeal only that an award of custody to him is the viable alternative to the termination of his parental rights.

We conclude that the record demonstrates that F.P.’s conduct amounted to an abandonment of the child and that his conduct toward the child, both before and after its birth, contradicts the position he has taken in this legal proceeding. The record also demonstrates that F.P. had failed to offer any form of support for the child, and that he had failed to maintain any contact, or to seek visitation with, the child. See § 26-18-7, Ala.Code 1975.

We conclude that the trial court’s judgment is supported by the evidence in the record and that the judgment is not plainly and palpably wrong. See A.R.E. v. E.S.W., supra; M.H.S. v. State Dep’t of Human Res., supra. The judgment is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

MURDOCK, J., concurs in the result.

YATES, P.J., and CRAWLEY, J., dissent.

YATES, Presiding Judge,

dissenting.

I respectfully dissent from the main opinion affirming the trial court’s judgment terminating the father’s parental rights and approving the adoption of his minor child. The evidence does not support a finding that the father gave implied consent to the adoption or that his actions amounted to an abandonment of the child. To the contrary, the evidence supports a finding that the father has vigilantly pursued his legal rights to establish a relationship with the child and has sought legal and physical custody of the child. Further, on the basis of our supreme court’s recent ruling in Ex parte C.V., 810 So.2d 700 (Ala.2001) (reversing the trial court’s judgment terminating a father’s parental rights and approving an adoption based on implied consent), the evidence in this case, likewise, “does not tend to prove any of Alabama’s applicable statutory criteria for terminating the father’s parental rights.” 810 So.2d at 702.

I am reciting the procedural history and the facts to present my rationale for disagreeing with the main opinion. On July 1, 1999, the father petitioned the juvenile court for a determination of “father and child relationship,” alleging that on or about June 29, 1999, “the mother” had given birth to a child he believed might be his biological child; that he had registered with the putative-father registry, § 26-10C-1, Ala.Code 1975; that he believed an adoption proceeding was pending in the Crenshaw County Probate Court; that he was requesting a blood test to determine paternity; and that he was requesting a stay of any pending adoption proceedings involving the minor child.

On July 12, 1999, the adoptive parents petitioned the probate court for adoption, alleging that the child, born on July 6, 1999, was in the mother’s custody and that “no other persons or agencies have any interest” in the child; that “all persons known to the [adoptive parents] at the time of filing this petition from whom consents or relinquishments to this adoption are required by law ... are as follows: [the mother]”; and that they were fit and proper persons to adopt the child. On July 18, 1999, the probate court entered an interlocutory judgment, awarding the adoptive parents custody of the child, ordering a postplacement investigation, and setting the case for a dispositional hearing in December 1999.

In December 1999, F.P. moved for a judicial determination adjudicating him as the father, to allow him to pursue further legal action regarding the child. F.P. argued that a paternity test had indicated his probability of paternity at 99.99%. According to the case action summary, the court, on January 5, 2000, determined that, based on the result of the blood test, F.P. was the father of the child; however, on January 19, 2000, the court withdrew its order, stating, “[T]he order of January 5, 2000, is hereby set aside and a hearing is set for February 11, 2000, to determine paternity.”

On April 10, 2000, the father moved the probate court to dismiss the adoption proceedings, to set aside the probate court’s interlocutory order, and to order the adoptive parents to “immediately turn over custody of the minor child” to him. He argued that his paternity had been established pursuant to § 26-17-12, Ala.Code 1975; that he did not consent to'the adoption pursuant to § 26-10A-7, Ala.Code 1975; that he had not been declared unfit and his parental rights had not been terminated; and that he was willing and able to care for the minor child. After the adoptive parents moved to transfer the adoption proceeding, the probate court, on April 20, 2000, entered an order transferring the adoption case to the juvenile court.

On April 10, 2000, the father amended his petition for custody, seeking joint custody of the child with his mother. On April 14, 2000, the adoptive parents petitioned to terminate the father’s parental rights, alleging that the mother had consented to the adoption, that the father was not a fit and proper person to have parental rights, and that it would be in the child’s best interests to terminate the father’s parental rights.

After conducting an ore tenus proceeding, the court, on September 8, 2000, entered an order finding that the father had “impliedly consented” to adoption or had “relinquished” his claim to custody, § 26-10A-2(4) and (13); terminating his parental rights, in reliance on § 26-10A-7, Ala. Code 1975; and granting the adoption of the minor child by the adoptive parents.

The pertinent facts of this case are as follows: The minor child is biracial. The mother and father were both 17 years old and were attending high school in a small town at the time of the child’s birth. The mother testified that after she became pregnant she was told to leave her mother’s residence. She said that she thought the reason she was told to leave was because she had become pregnant by a person of another race. The mother and father testified that they had dated during high school; however, according to the father, they did not date openly because the mother’s family did not approve. The mother testified that after she became pregnant she and the father “stopped having contact,” but that she maintained contact with his mother. Both the mother and the paternal grandmother stated that the paternal grandmother drove her to several doctor’s visits for prenatal care, and the mother admitted that she had written a letter stating that she wanted the paternal grandmother to have custody of the child. She stated that she had been confused throughout the decision-making process and that she did not know what was the best decision for the child. When questioned by the court as to what she thought was in the best interest of her child, she stated that she thought the child would be “best off’ with the adoptive parents because they were a two-parent household and could provide for the child financially.

The father was attending college and working part-time at the time of the trial. He stated that he returned to his home on the weekends. He said that he had never seen his son. The paternal grandmother said that she (the grandmother), F.P., and the grandmother’s daughter had attempted to visit the child when it was born and were told that they could not see the child without the mother’s permission and were refused the visit. The father stated that he did not have any information on the adoptive parents other than a telephone number and that he had tried to reach them by telephone one week before the date of the trial. He said that he had never consented to the child’s adoption and that the mother had stated that she had been pressured into consenting to an adoption because the child was biracial. He stated that he wanted the child to be with his natural family regardless of the child’s race and that through his family’s support he would be able to provide for the child while he attended college. He stated that he had also fathered a child with his current 16-year-old girlfriend and that he was providing emotional and financial support to that mother and child. He said that he had never been convicted of any crimes; however, he admitted that he had been suspended from high school for “passing a marijuana cigarette” in the school bathroom.

The father’s witnesses included three siblings, who stated that they would assist him financially to support the child while he completed his college education; the paternal grandmother, who stated that she would care for the child in her home and wanted joint custody of the child; and two paternal aunts, who were retired, and who stated that they would provide child care. The judge stated in open court that each of the witnesses was capable of providing for the child.

The adoptive parents both testified as to the loving relationship they had developed with the child and their financial ability to provide for the child. The adoptive father stated that he felt any communication from the father requesting to see the child would be considered “harassing calls” and that he had not extended the same option to the father as to the mother to see the child, because the father was trying to prevent the adoption.

Teresa Sanders, a Department of Human Resources (“DHR”) caseworker, testified that the mother had told her about the father; however, she prepared the adoption documents without stating the father’s name, because, according to her, the mother said she “didn’t know his whereabouts.”

Sandra Walker testified that she had known the mother “all of her life” and had known the father “all of his school career.” She stated that in addition to being an athletic trainer at the local high school, she also counseled teenage and unwed parents. She stated that she had advised the mother about placing the child for adoption and had facilitated the adoption. She stated that she did not consider the father or his family for an adoptive placement because she thought the father had rejected the mother and that he had denied being the father. She admitted that she did not discuss the pregnancy with the father and did not hear the father deny the child or say that he did not want the child.

The assistant principal at the high school the mother and father had attended stated that he either observed or was told that the mother was pregnant, because it was common knowledge that they had been dating, and that he had discussed the mother’s possible pregnancy with the father. He stated that the father said during their one conversation that “she wasn’t pregnant” and that they did not discuss the issue again.

The main opinion concludes that the father’s conduct, both during the mother’s pregnancy and after the child’s birth, amounted to abandonment. The Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, contains the following relevant provisions:

“Section 26-10A-8. Consent or relinquishment by a minor parent.
“(c) A minor father may give his implied consent by his actions. If a court finds by conclusive evidence that a minor father has given implied consent to the adoption, notice and the appointment of a guardian ad litem shall not be necessary.”
“Section 26-10A-9. Implied consent or relinquishment.
“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to,' the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without the provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pen-dency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.”

The “prebirth-abandonment” provision contained in § 26-10A-9, Ala.Code 1975, and cited in the main opinion did not exist when the mother became pregnant; it became effective only on June 11, 1999, 25 days before the child’s birth. I therefore question the applicability of the statute in this case. I agree that there may be instances in which a parent’s actions prior to the birth of the child may be considered as evidence of his or her consent to an adoption; however, in this case, the father’s conduct beginning immediately after the child’s birth overwhelmingly negates any finding of an intent to abandon the child or to give implied consent to the adoption. I further agree with the special writings of several of the Justices in Ex parte C.V., supra, that any implied consent may be withdrawn by the subsequent actions of a parent. Chief Justice Moore states, in part:

“A parent’s conduct before the birth of the child can evince implied consent to an adoption. This was the case even before the 1999 amendment to § 26-10A-9 became effective on June 11, 1999. However, even if this Court were to assume that [the father] had impliedly consented to the adoption ..., § 26-10A-13, Ala.Code 1975, provides that an express consent can be withdrawn: [stating certain means for withdrawing it]. Express consent certainly communicates a clearer assent by a parent to an adoption than does implied consent. Logically, if a parent can withdraw express consent to an adoption, a parent can withdraw implied consent to an adoption.”

C.V. at 703. Justice See’s special concurrence states, in part:

“It is clear that a parent can expressly consent to the adoption of his or her child before the child’s birth, see Ala. Code 1975, §§ 26-10A-ll(2), 26-10A-18(a) and (b). I see no reason a parent cannot also impliedly consent to a child’s adoption before that child’s birth. However, the Legislature has provided that, after the child’s birth, a parent can withdraw his express prebirth consent to the child’s adoption. See § 26-10A-13. If we are to recognize prebirth implied consent to adoption, then, I believe, consistent with the statutory structure for express consent and its withdrawal, we must also recognize implied withdrawal of prebirth consent.”

C.V. at 705. As to the issue of abandonment, Justice Johnstone’s special concurrence states, in part:

“Abandonment, as defined by the Child Protection Act, is
“ ‘a voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.’
“ § 26-18-3(l)(emphasis added). This definition does not contemplate abandonment of an unborn child by a father, because a father cannot have custody of the unborn child. Simply put, § 26-18-7(a)(1) does not authorize a trial court to terminate parental rights for ‘prebirth abandonment’ by a father. While the father’s prebirth conduct towards the birth mother and his alleged lack of financial support of the birth mother could be relevant to his fitness as a parent, the father’s prebirth conduct toward the birth mother was not relevant to whether the father abandoned [the child].... A fortiori, I agree with several of my colleagues on this Court insofar as they observe in their special writings that the evidence in this case cannot support the conclusion that any abandonment by the father ‘continue[d] for a period of six months next preceding the [prospective adoptive parents’] filing of the petition’ (§ 26-18-7(c) quoted above) so as to terminate the father’s parental rights, as the Child Protection Act would require for the termination of the father’s parental rights.”

C.V. at 723-24.

In S.W.B. v. R.C., 668 So.2d 835 (Ala.Civ.App.1995), this court approved an adoption of an infant, who was given to the adoptive parents by the biological mother and was subsequently reared by the couple for 12 years. We concluded in that case that the mother had failed to provide financial support, had not communicated with the child, and had failed to maintain a nominal parental relationship for the preceding seven years; therefore, the evidence supported “a finding of implied relinquishment” under § 26-10A-9, Ala.Code 1975, and we further held that the trial court’s judgment terminating parental rights based on abandonment was due to be affirmed. Id. at 836-37. Our opinion stated, in part,

“Under the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, consent or relinquishment of the adoptee is implied when the parents ‘knowingly [leave] the adoptee with others without provision for support and without communication,’ or when they ‘otherwise [do not maintain] a significant parental relationship with the adoptee for a period of six months.’ § 26-10A-9(2), Ala.Code 1975. In short, the statute provides that relinquishment is implied when parents have knowingly abandoned their child. ‘Abandonment’ is defined in the Code as
“ ‘a voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.’
“ § 26-18-3(1), Ala.Code 1975. A trial court can terminate parental rights if it finds by clear and convincing evidence that the parents have, among other things, abandoned their children. M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 421 (Ala.Civ.App.1994); § 26-18-7, Ala.Code 1975.
“We could find no cases dealing with § 26-10A-9, Ala.Code 1975. However, the evidence in this case supports a finding of implied relinquishment of the child for adoption.... Therefore, we hold that, by implication, [the biological parents] relinquished [the child] for adoption; see § 26-10A-9, Ala.Code 1975. The trial court’s judgment terminating the biological parents’ parental rights and granting the adoption is due to be upheld. See, e.g., M.J.G.L. v. State Dep’t of Human Res., 587 So.2d 1004 (Ala.Civ.App.1991).
“... The Alabama Adoption Code, § 26-10A-1 et seq., [Ala.Code 1975], was adopted in 1990, replacing earlier law on the adoption of children, § 26-10-1 et seq., [Ala.Code 1975]. Because the Adoption Code is relatively new, there is little ease law addressing its provisions. The Committee Comments to § 26-10A-9, dealing with implied consent of a parent for the adoption of his or her child, states:
“ ‘Just as acceptance of the terms of a commercial contract can be implied from the conduct of a party, so may the consent of a person to the adoption be implied from the conduct of that individual. When it is not possible to obtain the actual consent of a person who is specified in § 26-10A-7, this section enumerates instances in which a person’s consent may be implied from his or her acts or omissions with respect to his or her duty to care for the adoptee in the past.’ ”

668 So.2d at 836-38.

The main opinion discusses the father’s failure to support the child and his failure to maintain contact or seek visitation with the child as a basis for terminating his parental rights. In this case, the trial court determined on January 5, 2000, that F.P. was the father; however, the trial court withdrew its order on January 19, 2000, and reset the case for a hearing to determine paternity. As in Ex parte C.V., it appears that the court established paternity for the father when it simultaneously terminated his parental rights. During testimony, the court commented on the father’s ability to contribute to the child, stating, “I can understand when the man doesn’t know where the child is that he can’t send a gift or child support.” The only contact the father had with the adoptive parents was by a telephone call. I also question the father’s obligation to support the child once the prospective adoptive parents received the child into their home, filed a petition for adoption, and petitioned to terminate the father’s parental rights. Justice Johnstone’s special writing stated, in part:

“To penalize the father for failing to contribute to the prospective adoptive parents after they revealed themselves and [the child] but while they did their utmost to deny and to terminate the father’s parental rights would be equally unfair.
“Additionally, once prospective adoptive parents have received an adoptee into their home and have filed a petition for adoption, a court ‘shall [enter an interlocutory order] delegating to the [prospective adoptive parents] (1) custody, except custody shall be retained by ... the licensed child placing agency which held custody at the time of the placement until the entry of the final decree and (2) the responsibility of the care, maintenance, and support of the adoptee, including any necessary medical or surgical treatment, pending further order of the court.’ § 26-10A-18. Therefore, once the prospective adoptive parents petitioned to adopt [the child] they assumed responsibility for his care and support, and, thus, relieved the father of any duty of support.”

810 So.2d at 722.

In T.S. v. J.P., 674 So.2d 535 (Ala.Civ.App.1995), we held that in order to terminate parental rights in a pending adoption case, the court must determine whether grounds for termination exist, including, but not limited to, those specifically listed in the Child Protection Act, § 26-18-1 et seq., Ala.Code 1975, and must also determine whether all viable alternatives to termination of parental rights have been considered. We stated, in part:

“It follows, therefore, that Ala.Code 1975, § 26-10A-1 et seq., the Alabama Adoption Code (AAC) must be read in pari materia with Ala. Code 1975, § 26-18-1 et seq., the 1984 Child Protection Act (CPA).
“In the CPA, our legislature clearly provided guidelines and standards for terminating parental rights based upon clear and convincing evidence. [§ 26-18-7, Ala.Code 1975.] Mindful of the serious nature of cases involving the termination of parental rights and the need to comply with the requirements of due process, our Supreme Court established a two-pronged test be to applied. Ex parte Beasley, 564 So.2d 950 (Ala.1990). The court must determine whether grounds for termination exist, including, but not limited to, those specifically listed in § 26-18-7, and must also determine whether all viable alternatives to the termination of parental rights have been considered.... Furthermore, where the State or a nonparent seeks to terminate parental rights, the court must find that the child is dependent. Additionally, we note that the United States Supreme Court has held that, in a termination of parental rights proceeding, a ‘clear and convincing evidence’ standard of proof satisfies the requirements of due process, while a lesser standard does not.
“A construction of the AAC that usurps and overrides the CPA, and that calls for the application of a lesser or different standard, is an unworkable, unjust, and unreasonable interpretation. More importantly, the imposition of a lesser standard would clearly be unconstitutional.”

Id. at 537 (citations omitted).

The father stated that he worked part-time and would contribute to the financial support of the child while he attended college. There was no testimony to indicate that he was unfit or unwilling to care for the child or that his circumstances would not change in the foreseeable future. He further stated that the mother had been pressured into the adoption because the child was biracial; that he wanted to rear the child within his family and the community, regardless of its mixed race, and that the child would live with his mother, so that he could continue his college education. I conclude that the father’s conduct, including registering with the putative-father registry, promptly filing a petition for custody, and petitioning the court to stop the adoption proceedings, indicates a willingness and desire to rear the child.

Last, the evidence does not support a finding that there are no viable alternatives to terminating his parental rights. There was ample testimony indicating that the paternal grandmother was a suitable relative resource to be considered as an alternative placement for the child. The trial court stated that the paternal grandmother was capable of caring for the child, and it made the same assessment of several other paternal relatives who testified.

Based on the foregoing and in light of the supreme court’s recent holding in Ex parte C.V., I would reverse the trial court’s judgment and award immediate custody of the child to the father and paternal grandmother. See also, G.D.M. v. State, 655 So.2d 1020 (Ala.Civ.App.1995).

CRAWLEY, J., concurs.

      . We note that § 26-10A-9, Ala.Code 1975, as amended effective June 11, 1999, was effective at the time of the child's birth. Even assuming that the previous Code section gov-eming implied consent governed this action, we would note that the language of that section is similar to that set forth in the amendment.

      . The record indicates that the child was bom on July 6, 1999, which means that the father petitioned the juvenile court even before the child was bom.