author: SMITH, Justice.

text:
    Daniel WAITE, Sr. v. Margaret Susan Helmondollar WAITE.
    1040438.
    Supreme Court of Alabama.
    July 28, 2006.
    Rehearing Denied Jan. 12, 2007.

      Albert L. Jordan, Michael L. Jackson, and Matthew D. Fridy of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Steven T. Speakman of Speakman & Speakman, Auburn, for appellant.
    Sheldon Perhacs, Birmingham, for ap-pellee.
   SMITH, Justice.

Daniel Waite, Sr., appeals from the dismissal of his complaint, which sought to invalidate a divorce decree entered in 1960 by the Russell Circuit Court. We affirm.

Facts and Procedural History

This action is the second action that the appellant, Daniel Waite, Sr., has filed against the appellee, Margaret Susan Hel-mondollar Waite, in the Russell Circuit Court, and this appeal marks the third appeal Daniel has filed in his actions against Margaret in Alabama.

The facts and procedural history of the first and second appeals are summarized in Waite v. Waite, 891 So.2d 341, 341-42 (Ala.Civ.App.2004), as follows:

“The record indicates that in 1960 Margaret and [Reese] Helmondollar obtained a divorce by a judgment (‘the 1960 divorce judgment’[]) of the trial court. [Daniel Waite, Sr.,] and Margaret married in 1968. Four children were born of their marriage. [Daniel] and Margaret now reside in Texas. It appears that [Daniel] and Margaret separated sometime in 1999, and Margaret initiated divorce proceedings in Texas.
“On December 28, 2001, [Daniel] filed a complaint in the trial court in which he alleged that at the time Margaret and [Reese] sought their divorce, neither party to the 1960 divorce judgment had satisfied the residency requirements for obtaining a divorce in Alabama. [Daniel] sought a judgment declaring the 1960 divorce judgment void. In his 2001 declaratory-judgment action, [Daniel] named only Margaret as a defendant. It appears from the record on appeal that in prosecuting the 2001 declaratory-judgment action, [Daniel] wanted to have the 1960 divorce judgment declared void to aid in his attempt to have his 33-year marriage to Margaret invalidated.
“Margaret moved to dismiss the 2001 declaratory-judgment action. In her motion to dismiss, Margaret alleged, among other things, that [Daniel] lacked standing to bring that action and that [Daniel] had failed to join certain indispensable parties. On February 8, 2002, the trial court entered a notation on Margaret’s motion to dismiss indicating that it granted that motion. [Daniel] filed a postjudgment motion. The trial court conducted a hearing on [Daniel’s] post-judgment motion, and it received ore tenus evidence. On May 16, 2002, the trial court entered an order denying [Daniel’s] motion to alter, amend, or vacate its February 8, 2002, judgment.
“[Daniel] appealed the trial court’s judgment in the 2001 declaratory-judgment action to our supreme court. On March 28, 2003, our supreme court affirmed the trial court’s judgment in the 2001 declaratory-judgment action without issuing an opinion; the court cited Yerger v. Cox, 281 Ala. 1, 198 So.2d 282 (1967), in its no-opinion affirmance. Waite v. Helmondollar (No. 1011686, March 28, 2003), 881 So.2d 546 (Ala. 2003) (table).
“On August 21, 2003, after the supreme court issued its decision in Waite v. Helmondollar, supra, [Daniel] filed a second declaratory-judgment action in the trial court. The 2003 declaratory-judgment action was assigned to the same trial judge that had considered the 2001 declaratory-judgment action. In the 2003 declaratory-judgment action, [Daniel] named Margaret and [Reese] as defendants; in that action, he sought to have the 1960 divorce judgment declared void because, he alleged, the evidence presented during Margaret and [Daniel’s] divorce proceedings in Texas established that the parties to the 1960 divorce judgment did not allege or prove the residency requirements necessary to invoke the jurisdiction of the court that entered the 1960 divorce judgment.
“On August 28, 2003, seven days after [Daniel] filed the 2003 declaratory-judgment action, the trial court, on its own motion, entered a judgment in favor of the defendants. The trial court cited the doctrine of res judicata in entering that part of its judgment in favor of Margaret and the doctrine of collateral estoppel in that part of its judgment in favor of [Reese].

The Court of Civil Appeals reversed the trial court’s dismissal of the 2003 declaratory-judgment action. The court reasoned:

“The doctrines of res judicata and collateral estoppel are affirmative defenses, Rule 8(c), Ala. R. Civ. P.; Lee L. Saad Constr. Co. v. DBF Architects, P.C., 851 So.2d 507, 516 (Ala.2002), and do not affect a court’s jurisdiction to consider an action. Affirmative defenses may be waived if they are not pleaded by a party against whom a claim is asserted. Rule 8(c), Ala. R. Civ. P.; Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793 (Ala.1984) (citing 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d ed.1948)). By its actions in the present case, the trial court, in essence, asserted the affirmative defenses of the doctrines of res judicata and collateral estoppel on behalf of the defendants and dismissed the matter based on those affirmative defenses.
“After careful consideration, we find most persuasive the reasoning of the courts that have held that, although a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal. See Lease Partners Corp. v. R & J Pharmacies, Inc., [329 Ill.App.3d 69, 768 N.E.2d 54, 263 Ill.Dec. 294 (2002)]; Adams v. Inman, [892 S.W.2d 651 (Mo.Ct.App.1994) ]. Therefore, we must conclude that the trial court erred in dismissing the action, on its own motion, based upon affirmative defenses not asserted by the defendants.”

891 So.2d at 343^4.

On May 21, 2004, following remand from the Court of Civil Appeals, Margaret filed another motion to dismiss. Among other things, Margaret argued that Daniel lacked standing to challenge the 1960 divorce decree. On July 21, 2004, the trial court granted Margaret’s motion to dismiss. The basis for the dismissal, however, is not apparent from the face of the trial court’s order, which states:

“1) [The] hearing held in this court in [the 2001 declaratory-judgment action] on April 22, 2002, was an adjudicatory hearing.
“2) [Daniel] first learned in August 1970 of possible irregularities of [Margaret’s] divorce from Reese....
“3) [Daniel] received legal advice in 1994 concerning [Margaret’s] Russell County divorce from [Reese]....
“It is therefore, Ordered, Adjudged, and Decreed:
“That defendant, Margaret Susan Helmondollar Waite’s Motion to Dismiss is granted.”

On August 19, 2004, Daniel filed two postjudgment motions: one requested the trial court, in accordance with Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate its judgment of dismissal; the other sought relief under Rule 60, Ala. R. Civ. P. On October 13, 2004, the trial court denied Daniel’s Rule 60 motion and set the Rule 59(e) motion for hearing on December 6, 2004.

The trial court did not rule on Daniel’s Rule 59(e) motion; it was denied by operation of law. Rule 59.1, Ala. R. Civ. P. Daniel filed a “renewed” Rule 60 motion on November 17, 2004; the trial court denied that motion on November 29, 2004. Daniel filed a timely notice of appeal.

Standard of Review

“ ‘The standard of review of the grant of a motion to dismiss ... was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review ... is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a ... dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” ’
“Jacks v. Madison County, 741 So.2d 429, 430 (Ala.Civ.App.1999) (citations omitted). In addition, ‘[mjotions to dismiss are rarely appropriate in declaratory judgment proceedings. Such a motion does, however, serve one purpose, that of determining whether the [complaint] states the substance of a bonafide justiciable controversy which should be settled.’ Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978) (citation omitted).”

Helms v. Barbour County, 914 So.2d 825, 828-29 (Ala.2005).

Discussion

Daniel’s complaint in his declaratory-judgment action alleges that the 1960 divorce decree “is void on its face due to the fact that the residency requirements were neither alleged nor proved as then required under Title 34, §§27 and 29 of the Code of Alabama, 1940 and in fact it has since been proved through [Margaret’s] testimony that the residency requirements were not met.” Daniel attached to the complaint a copy of relevant documents from the 1960 divorce proceedings involving Margaret and Reese, including a bill of complaint filed by Margaret seeking divorce on the basis of voluntary abandonment, an answer and waiver filed by Reese, an affidavit of Margaret, and the divorce decree.

In the bill of complaint for divorce Margaret filed in 1960, Margaret alleged that she was a “bona fide resident of the State of Alabama” and that Reese had voluntarily abandoned her for more than one year next preceding the filing of her complaint. In his answer and waiver in the 1960 divorce proceedings, Reese submitted to the jurisdiction of the Russell County Court.

Daniel contends that under Title 34, § 27, Ala.Code 1940 (Recomp.1958), the trial court did not have subject-matter jurisdiction to enter the 1960 divorce decree and that the 1960 divorce decree therefore is “void on its face.” We disagree.

Title 34, § 27, Ala.Code 1940 (Re-comp.1958), provided:

“No bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has been a bona fide resident citizen of this state for twelve months next preceding the filing of the bill which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.”

(Emphasis added.) Under this Code provision, therefore, before a bill of complaint could have been filed seeking a divorce on the basis of voluntary abandonment, the complainant (such as Margaret) ordinarily was required to have been “a bona fide resident citizen” of Alabama for the 12 months preceding the filing of the bill of complaint. However, the statute included an exception to the 12-month residency requirement; that exception, found in the proviso in § 27 emphasized above, applied when the court had jurisdiction of “both parties to the cause of action.”

In Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236 (1948), this Court construed an identically worded proviso found in Title 34, § 29, Ala.Code 1940. Section 29 provided:

“When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action. ”

(Emphasis added.) Because the Jennings Court recognized that at least one spouse must be domiciled within Alabama for the State to have jurisdiction over the marital status (or res), the Court construed the emphasized proviso in § 29 as having an implied requirement that at least one party to the divorce be domiciled within the State. 251 Ala. at 74-75, 36 So.2d at 237-38. Thus, in Jennings, this Court held that the trial court did not have jurisdiction to enter a decree of divorce when neither party was an Alabama resident. 251 Ala. at 75, 36 So.2d at 238.

In Gee v. Gee, 252 Ala. 103, 39 So.2d 406 (1949), this Court applied the interpretation given the § 29 proviso in Jennings to the proviso found in § 27. Gee held that the proviso in § 27 required that for a court to have jurisdiction over the parties’ marriage, it must be alleged and proved that one of the parties was domiciled in Alabama. 252 Ala. at 105, 39 So.2d at 408 (“It is not sufficient to make the allegation [of domicile] without satisfactory proof of such citizenship.... There must not only be evidence of such domicile, but it must be sufficient to satisfy the court of the truth in fact of such domicile.”). Daniel relies on Gee for his assertion that the 1960 divorce decree is void on its face because, he contends, Margaret failed to “prove” in the 1960 divorce proceedings that she resided in Alabama.

Daniel also relies on Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961). In Hartigan, a former husband and wife appeared together in 1960 in proceedings before the trial court that had entered a decree divorcing them in 1954. The former husband sought a modification of the alimony provision of the divorce decree. During the 1960 proceedings, the former wife testified, without objection from the former husband, that the parties had never been residents of Alabama and that they had agreed to fraudulently allege residency in Alabama to obtain the 1954 divorce decree. 272 Ala. at 69-71, 128 So.2d at 727-28. Following the former wife’s testimony, the trial court on its own motion vacated the 1954 divorce decree. On appeal, this Court upheld the trial court’s setting aside of the 1954 decree. 272 Ala. at 76,128 So.2d at 783.

Although Hartigan held that the trial court had the power to set aside the 1954 • decree ex mero motu when both parties to the 1954 decree were physically present before the court and when the undisputed evidence showed conclusively that the decree had been obtained by fraud, Hartigan did not confer standing upon a nonparty, such as Daniel, to challenge a final decree or judgment when the decree or judgment is not void on its face and did not affect any right of the nonparty at the time it was rendered. Two decisions of this Court issued subsequent to Hartigan make it clear that Daniel does not have standing to bring an action challenging the 1960 divorce decree: Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18 (1961), and Yerger v. Cox, 281 Ala. 1, 198 So.2d 282 (1967).

In Aiello, John Aiello initiated proceedings in which he sought “to nullify a divorce decree rendered in the same court some 9 years and 9 months earlier [in 1948], and further, to nullify [his] purported marriage [to Jane Aiello].” 272 Ala. at 508, 133 So.2d at 19. John alleged that Jane’s 1948 divorce decree, to which John was not a party, had been obtained by fraud. Specifically, John alleged that Jane had never been a bona fide resident of Alabama, and John argued “that the decree of 1948 is void on its face [because] ‘the only proof offered the court below as to residence or domicile were the two short statements contained in [Jane’s] petition and in the testimony before the Commissioner.” 272 Ala. at 508, 133 So.2d at 19. The “two short statements” John challenged were Jane’s assertion in her petition that “[t]he Complainant is over the age of 21 years and is a bona fide resident of Birmingham, Alabama, Jefferson County” and Jane’s testimony before the Commissioner that “I am over twenty-one years of age and I reside in Birmingham, Jefferson County, Alabama.” 272 Ala. at 508,133 So.2d at 20.

The Aiello Court held that “[t]he insufficiency of evidence to support a final decree does not make the decree void on its face” and therefore the decree at issue in Aiello “was not made void on its face by lack of proof of residence.” 272 Ala. at 510, 509, 133 So.2d at 21. The Court examined Hartigan and pointed out that the decree in Hartigan was supported by testimony “not more efficacious to prove residence than is the instant testimony [in Aiello.]” 272 Ala. at 509, 133 So.2d at 20. Even so, the Hartigan Court had noted that the decree there “ ‘admittedly was not void on its face.’ ” 272 Ala. at 509, 133 So.2d at 20 (quoting Hartigan, 272 Ala. at 72, 128 So.2d at 729).

Likewise, the evidence of Margaret’s residency in the 1960 divorce proceedings is no less efficacious to prove residency than was the evidence supporting the allegations of residency in Hartigan and Aiel-lo. Margaret’s bill of complaint for divorce alleged that she was “a bona fide resident of the State of Alabama” and that she was “over the age of eighteen years,” and there was sworn testimony from a witness, Alice Allen, that Margaret was a bona fide resident of Russell County, Alabama.

It is of no consequence that the record from the 1960 divorce proceedings does not show that Margaret alleged or proved that she had been a resident of Alabama for the 12 months preceding the filing of the complaint. Both Margaret and Reese submitted to the jurisdiction of the trial court; therefore, the proviso of Title 34, § 27, Ala.Code 1940 (Recomp.1958), applied. In accordance with that proviso, as construed in Jennings and Gee, Margaret did not have to allege or prove that either she or Reese had been a resident of Alabama for the 12 months preceding the filing of the bill of complaint; instead, all that was required was that she allege and prove that one of them was domiciled in Alabama. See Gee, 252 Ala. at 105, 39 So.2d at 408 (“It is our view that if the court has jurisdiction over the [marriage] because the respondent is a resident of Alabama, it would be immaterial by virtue of the proviso [in Title 34, § 27, Ala.Code 1940] whether complainant was such a resident when the bill was filed, or that he had been for twelve months.”). See also Note, Migratory Divorce: The Alabama Experience, 75 Harv. L.Rev. 568, 570 (1962) (“Passing on the [proviso’s] validity, the Alabama supreme court held that although mere acquisition of jurisdiction over the parties could not confer upon a court power to grant a divorce, the [proviso] would be given effect as obviating the necessity of proving a year’s residence, with the result that only domicile need be shown.”) (emphasis added; footnote omitted). Thus, according to Aiello, because the record of the 1960 divorce proceedings shows that Margaret alleged that she was domiciled in Alabama, the 1960 divorce decree is not void on its face. Aiello, 272 Ala. at 509, 133 So.2d at 21.

Yerger stands for the proposition that, because the decree is not void on its face, Daniel does not have standing to bring an independent challenge to the validity of the 1960 divorce decree. In Yerger, this Court held that “a collateral attack against a decree of divorce rendered in Alabama cannot be maintained in our courts when that attack is instituted against nonresident parties by nonresident strangers to the original divorce proceedings when the decree is not void on the face of the proceedings. 281 Ala. at 5, 198 So.2d at 286 (emphasis added).

Daniel argues that Yerger is distinguishable for two reasons. First, he contends that there was no allegation in Yerger that the divorce decree at issue in that case was void. However, the appellants in Yerger argued that the divorce decree was void, but this Court rejected their argument. 281 Ala. at 4, 198 So.2d at 285 (“Appellants argue that they show the divorce decree was void because [the evidence of residency in the decree at issue] was insufficient to prove the jurisdiction averment of domicile .... This identical argument was made and rejected in Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18, and need not be repeated here.”).

Daniel also argues that Yerger is distinguishable because of what Daniel characterizes as an admission by Margaret in the 2001 declaratory-judgment action that she fraudulently alleged residency in the 1960 divorce proceeding. Daniel contends that in Yerger “there was no testimony in open court that [either of the parties to the divorce decree] admitted their fraud upon the court.” (Daniel’s brief, p. 32.)

Daniel insists that Margaret’s alleged admission of fraud in the 2001 declaratory-judgment action means that Hartigan, rather than Yerger, is controlling authority for his case. In particular, Daniel relies on the following language from Hartigan:

“ ‘[I]f the parties admit or stipulate, or fail to object to the evidence of, the facts showing a lack of jurisdiction, it is then established that the judgment is void as effectively as though shown by the record, and whenever such fact is brought to the attention of the court, it is the duty of the court to so declare as a matter of law.’ ”

272 Ala. at 73, 128 So.2d at 730 (quoting Freeman on Judgments § 375a). Thus, Daniel argues that the trial court must set aside the 1960 divorce decree as void. We disagree.

This Court in Aiello emphasized that Hartigan was restricted to those situations in which “both parties to the prior decree were present in court, and, without objection by either party, facts were established to show the fraud practiced on the court and that the court did not have jurisdiction when the prior decree was rendered.” Aiello, 272 Ala. at 509, 133 So.2d at 21. Even if Margaret admitted, as Daniel alleges, that she was not domiciled in Alabama at the time of the 1960 divorce proceedings, both parties to the 1960 divorce decree were not before the trial court. Consequently, Hartigan is distinguishable.

Daniel was not a party to the 1960 divorce decree, and he has not alleged that he had any rights that were or could have been affected by the 1960 divorce decree at the time it was rendered. See Yerger, 281 Ala. at 5, 198 So.2d at 286 (“The bill does show that the complainants are strangers to the decree, that they occupied no status and had no rights which were or could have been affected by the decree at the time it was rendered. No right attempted now to be asserted was acquired by either the complainants or their father, the second husband, prior to the rendition of the decree.”); Aiello, 272 Ala. at 510, 183 So.2d at 22 (“[John Aiello] was not a party to the divorce [decree he sought to have invalidated]. We do not think he possessed, at the time the divorce decree was rendered, any right which was adversely affected by that decree. It does not appear that he stands in privity'with .either party to the divorce suit. He cannot derive any right from the respondent, the woman he purportedly married in 1950, because, if the 1950 marriage is void as he says it is, then no right could pass to him by a void marriage; and, if the marriage be not void, then he is still the husband of respondent and cannot have their marriage annulled, as he seeks to have done by this suit.”). For those reasons, and because the 1960 divorce decree is not void on its face, Daniel does not have standing to bring an independent challenge to the 1960 divorce decree. Yerger, 281 Ala. at 5, 198 So.2d at 286 (“We hold that a collateral attack against a decree of divorce rendered in Alabama cannot be maintained in our courts when that attack is instituted against nonresident parties by nonresident strangers to the original divorce proceedings when the decree is not void on the face of the proceedings. ” (emphasis added) ).

Conclusion

The trial court’s dismissal of Daniel’s complaint is affirmed.

AFFIRMED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

      . The Alabama Rules of Civil Procedure, adopted effective July 1973, modernized terminology so that a "decree” is now referred to as a "judgment.” However, because the divorce proceedings at issue here were final before the adoption of the Alabama Rules of Civil Procedure, we refer to the decree entered by the Russell Circuit Court in 1960 as "the 1960 divorce decree.”

      “1 Apparently, neither party to the 2001 declaratory-judgment action contested the jurisdiction of the Alabama Supreme Court to hear that appeal, and neither party addresses that issue in this appeal. In any event, this court could not set aside a judgment of our supreme court. [Daniel] appealed the judgment in the 2003 declaratory-judgment action that forms the basis of this appeal to the supreme court, and that court transferred the appeal to this court on the basis that this court has appellate jurisdiction. But see Ex parte Galanos, 796 So.2d 390 (Ala.2000); Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980).

      “2 In Yerger v. Cox, supra, the children of a decedent sought to have a divorce judgment obtained by the decedent’s second wife, the children’s stepmother, before her marriage to the decedent declared void. If the stepmother’s divorce had been held void, thus invalidating the stepmother’s marriage to the decedent, the children would have received a greater amount in military survivor benefit payments. All of the parties to the action were nonresidents of Alabama. Our supreme court held that the decedent’s children, who were ‘strangers’ to their stepmother’s divorce judgment, could not seek to have that judgment declared void.”

      . As we discuss, even though the basis for the trial court’s dismissal is not clear, we affirm because we conclude that Daniel lacks standing to challenge the 1960 divorce decree. We note that Margaret raised the issue of standing in her motion to dismiss. However, even if Margaret had not raised standing in her motion to dismiss, this Court could consider ex mero motu whether Daniel has standing to bring his lawsuit. Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala.2003) (" ' "Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.” National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994). " ‘[L]ack of standing [is] a jurisdictional defect.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed.Cl. 1, 7 (Fed.Cl.1997)). "[Jjurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Balter, 518 So.2d 711, 712 (Ala.1987)."') (quoting Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003)).
      Margaret also argued that Daniel had failed to join indispensable and necessary parties, that he was seeking to "bastardize” the children born of his marriage to Margaret and any children born of a subsequent marriage of Reese, and that the doctrines of res judica-ta and collateral estoppel barred his actions against her and against Reese.

      . On October 18, 2004, Margaret filed a motion requesting leave to file an amended motion to dismiss asserting additional grounds. Margaret attached to her motion a copy of Waite v. Waite, 150 S.W.3d 797 (Tex.App.2004), an opinion issued by the Court of Appeals of Texas on October 5, 2004, in Margaret's divorce litigation with Daniel. Margaret argued to the trial court that the Texas opinion showed that Daniel had taken what she contended were inconsistent legal positions regarding his marriage to her and that by accepting assets awarded to him by the trial court in his Texas divorce proceedings, Daniel had accepted the authority and jurisdiction of the Texas courts to issue a judgment of divorce for his marriage to Margaret. Consequently, Margaret argued that the Texas divorce judgment “is entitled to full faith and credit and is res judicata with respect to whether or not [Margaret] was legally married and legally divorced.” On October 19, 2004, the trial court purported to grant Margaret’s motion for leave to amend her original motion to dismiss. On October 29, 2004, Daniel filed an objection and response to Margaret's motion for leave to amend her motion to dismiss to add additional grounds, but the trial court overruled Daniel’s objection.

      . The divorce proceeding Daniel is contesting predates the effective date of the Alabama Code 1975.

      . In Hartigan, the complainant had testified, " ‘... I am a bona fide resident citizen of Birmingham, Jefferson County, Alabama, and have been for more than a year next preceding the filing of this bill of complaint. The respondent is also over the age of twenty-one and is a resident citizen of this county and state. I live at 247-Kent Drive, Birmingham, Alabama,...”'

        Aiello, 272 Ala. at 509, 133 So.2d at 20. In addition, there was testimony in Hartigan from a witness as follows:
      " '... I know both the parties to this cause and that they are each over twenty-one years of age and are resident citizens of Birmingham, Jefferson County, Alabama, and have been such residence (sic: residents) for more than one year next preceding the filing of this bill of complaint. She lives at 247 Kent Drive, Birmingham, Alabama, and he is in the Western part of the city. I do not know his exact address.'"

        Aiello, 272 Ala. at 509, 133 So.2d at 20.

      . This Court’s no-opinion order of affirmance in Daniel's appeal of his 2001 declaratory-judgment action cited Yerger.

      . Presumably, Daniel means that there was no allegation in Yerger that the decree was void on its face. However, we have concluded that the 1960 divorce decree is not void on its face; therefore, Yerger is not distinguishable on that basis, particularly because Daniel makes precisely the same void-on-its-face argument this Court rejected in Aiello and Yer-ger.

      . Daniel’s failure to allege that he had any rights that were or could have been affected by the 1960 divorce decree at the time it waS rendered distinguishes his case from decisions such as Wilson v. Minor, 220 F.3d 1297, 1301-04 & n. 11 (11th Cir.2000), and Dillard v. Baldwin County Commissioners, 225 F.3d 1271, 1282 (11th Cir.2000). Wilson and Dillard involved collateral attacks on orders issued by federal district courts to remedy violations under the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. The individuals seeking relief from the remedial orders had not been parties to the original proceedings that had resulted in those orders; even so, they had standing to challenge those orders because, among other reasons, they alleged that the remedial orders affected their rights. Dillard, 225 F.3d at 1273-74; Wilson, 220 F.3d at 1301.

      . Daniel argues that an application of Yerger that would deny him standing to challenge the 1960 divorce decree on the basis of his status as a nonresident would violate the United States Constitution. See, e.g., U.S. Const, art. IV, § 2 ("The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”); U.S. Const, amend. XIV, § 1 ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States_”). Despite Yerger’s apparent emphasis on the status of the plaintiffs there, however, we do not think that their status as nonresidents is essential to Yerger’s central holding. • Rather, we read Yerger (and Aiello ) as denying standing to Daniel because (1) Daniel was not a party to the 1960 divorce decree; (2) the 1960 divorce decree is not void on its face; and (3) Daniel has not alleged that he had any rights that were or could have been affected by the 1960 divorce decree at the time it was rendered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Bettye Jan Belcher QUEEN, Beverly Jean Scroggins, and Otha A. Belcher. (In re In the matter of the estate of Olon Belcher, an incapacitated person).
    1050140.
    Supreme Court of Alabama.
    Dec. 8, 2006.
    Sydney F. Frazier, Jr., and C. Fred Daniels of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Birmingham, for petitioners.
    Scott Burnett Smith and Gary C. Huc-kaby of Bradley Arant Rose & White, LLP, Huntsville; and Robert C. Walthall and Matthew H. Lembke of Bradley Arant Rose & White, LLP, Birmingham, for respondent.
   PER CURIAM.

Bettye Jan Belcher Queen, Beverly Jean Scroggins, and Otha A. Belcher (“the petitioning children”), children of Olon Belcher (“the father”), petition this Court for a writ of mandamus directing the Bibb Circuit Court to vacate its September 27, 2005, order denying their motion for an entry of findings and judgment following a remand from this Court and to require that, in determining the mental capacity of the father on remand, the trial court consider only the record in this case existing when the petitioning children appealed. We grant the petition.

The petitioning children challenge the actions of their brother Brent Belcher (“Brent”) with respect to his dealings with the father when the father was alleged to lack capacity to manage his affairs. After an evidentiary hearing that resulted in a ruling favorable to Brent, the petitioning children appealed. In Queen v. Belcher, 888 So.2d 472, 476-78 (Ala.2003), we held that the trial court had applied an incorrect standard for determining whether the father had mental capacity to execute certain documents, and we reversed the trial court’s judgment and remanded' the case. After the case was remanded and on Brent’s motion, the trial court ordered an evidentiary hearing to receive additional evidence as to the father’s mental capacity. The petitioning children filed a motion with the trial court stating that the hearing was inappropriate because the father’s “competence had already been tried to a conclusion.”' The trial court denied the motion, and the petitioning children filed this petition for the writ of mandamus.

The sole issue before this Court is whether the trial court erred in ordering an evidentiary hearing on remand to determine the father’s mental capacity when an evidentiary hearing had already taken place as to that issue. This Court has consistently held:

“ ‘The writ of mandamus is a drastic and extraordinary writ, to 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); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Garter, [807 So.2d 534,] 536 [(Ala. 2001)].”

Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). A petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the trial court, on remand, has complied with the appellate court’s mandate. Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998).

In Ex parte Edwards, this Court held that when an appellate court remands a case, the trial court does not have the discretion to conduct a new trial or an evidentiary hearing. 727 So.2d at 794-95. Instead, after a case is remanded, the trial court may enter “ ‘ “[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.”’” Id. at 794 (quoting Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal & Error § 991 (1962)).

This Court held in Ex parte Alabama Power Co., supra, that when an appellate court’s mandate does not include language expressly mandating a new trial, the trial court must enter a judgment on the evidence before it. This Court stated: “This court held, on first deliverance, that Alabama Power was entitled to a directed verdict because there was an insufficiency of evidence regarding control. Because we did not expressly grant a new trial, our prior decision terminated this litigation.” 431 So.2d at 155 (citing Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981)) (emphasis added). The Court then stated the rule of law regarding a trial court’s authority to order a new trial on remand:

“ ‘ “Where ... the cause is remanded with directions as to the judgment to be entered, such judgment should be entered without a new trial.” 13 Ency. Plead. & Pract. p. 854. “Where a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior.... Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of a reviewing court, has had its merits determined, and has been remanded with specific directions, the court to which such mandate is directed has no power to do anything but obey, otherwise, litigation would never be ended.” 2 R.C.L. p. 289.’ ”

431 So.2d at 155 (quoting Kinney v. White, 215 Ala. 247, 248-49, 110 So. 394, 394 (1926)) (emphasis added). In other words, a trial court does not have the authority to reopen for additional testimony a case that has been remanded to it, except where expressly directed to do so.

In Ex parte Whisenant, 898 So.2d 761, 763 (Ala.Civ.App.2004), the Court of Civil Appeals condemned what it described as a “a second bite at the apple,” holding:

“The status conference [after remand], which, in substance, granted a reopening and retrial of the case, was not authorized.
“ ‘The reversal was not one with mere general directions for a new trial, sometimes referred to as an “unqualified reversal” (2 R.C.L. 290), but one with specific directions, in accordance with the opinion.’ ”

See also City of Gadsden v. Johnson, 891 So.2d 903, 906 (Ala.Civ.App.2004) (“[I]t is clear that the trial court, on remand, was to determine, from the evidence already before it, the degree of any disability Johnson suffered as a result of the February 1993 on-the-job accident.... Instead, the trial court took new evidence on the issue already decided by this court, and that evidence was intermingled with evidence pertaining to another injury. The trial court was not free to conduct a new trial .... ” (citing Auerbach v. Parker, 558 So.2d 900 (Ala.1989); Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992); and Ex parte Dodson, 459 So.2d 884 (Ala.Civ.App.1984))). See also Courtright v. Courtright, 820 So.2d 823, 823 (Ala.Civ.App.2001) (“Because the trial court considered new evidence in fashioning its December 6, 2000, judgment on remand, we must reverse. The case is remanded for the trial court to fashion an equitable property division and alimony award based upon the evidence that was before the court at the time of its original divorce judgment. All other matters raised by the parties at the November 20, 2000, hearing fall outside the scope of this court’s remand order.”) (emphasis added); and Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App.2000) (noting that, in the court’s remand order, “[w]e did not instruct the trial court to hold another hearing or indicate that the employer should be allowed to offer additional testimony”).

The issue of the father’s mental capacity was the primary issue at the hearing previously held in the trial court. Nowhere did the trial court limit the evidence at trial to the father’s “general competency,” as Brent suggests. Instead, the court admitted evidence on the issue whether the father had the mental capacity to execute a power of attorney and to enter into partnership and trust agreements, and that issue was tried to conclusion at trial. Our order of remand in Queen v. Belcher stated: “[W]e reverse the order of the trial court and remand this case for reconsideration consistent with this opinion to determine whether [the father] was competent to execute the power of attorney and to enter into the partnership agreement and the trust agreement.” 888 So.2d at 478. Our mandate did not direct the trial court to hold a new trial or another hearing; instead we directed the trial court to reconsider its previous finding based on the evidence of record and in light of the appropriate standard for determining mental capacity as set out in our opinion. The parties have already had a full opportunity to offer evidence on the issue of the father’s competence, and, on remand, the trial court was obliged to apply the law as stated in Queen v. Belcher to the evidence already of record.

Brent contends that when a trial court has applied the wrong legal standard to the evidence and the case is remanded, a new trial is required on remand; he relies on Lolley v. Citizens Bank, 494 So.2d 19 (Ala.1986), for that argument. In Lolley, the trial court awarded an attorney fee without considering the criteria for determining whether an attorney fee was reasonable, as this Court had recently set forth in Peebles v. Miley, 439 So.2d 137 (Ala.1983). Lolley opposed an evidentiary hearing on remand, contending that the rule in Ex parte Alabama Power, i.e., that a new trial was not permissible after a reversal for .insufficiency of the evidence, applied to bar a new hearing on the reasonableness of the attorney fee. This Court rejected Lolley’s argument, describing his reliance on Alabama Power as “misplaced,” and ordered an evidentiary hearing “in light of the guidelines set forth in Peebles v. Miley, supra, and to set forth with some particularity the findings from the evidence adduced.” 494 So.2d at 21.

Brent’s reliance on Lolley is likewise misplaced; we have no recently announced legal standard that requires further testimony tailored to assure a meaningful basis for the trial court’s finding. In this Court’s opinion in Queen v. Belcher, we applied settled principles of law to the facts adduced at an evidentiary hearing, and we reversed the judgment of the trial court and “remand[ed] this case for reconsideration consistent with this opinion to determine whether [the father] was competent to execute the power of attorney and to enter into the partnership agreement and the trust agreement.” 888 So.2d at 478. Reopening the record to take additional evidence was neither necessary nor expressly prescribed in.our order of remand.

For the reasons previously stated, we grant the petition for the writ of mandamus and direct the trial court to vacate its order denying the petitioning children’s motion for an entry of findings and judgment, in accordance with the legal standard set forth in our opinion on the prior appeal, based on the existing record in this case.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and SEE, LYONS, HARWOOD, STUART, and BOLIN, JJ., concur.

WOODALL and PARKER, JJ., dissent.

      . The facts before the trial court, which are not relevant to this mandamus petition, are set forth in Queen v. Belcher, 888 So.2d at 476-78.


author:
SMITH, Justice. PARKER, J.,
      SEE, Justice PARKER, Justice

text:
    SOUTHTRUST BANK v. George C. BOWEN, Jr.
    1040411.
    Supreme Court of Alabama.
    Dec. 8, 2006.

      Christopher M. Mims of Farmer, Farmer & Malone, P.A., Dothan, for appellant.
    Joel W. Weatherford and Russell N. Parrish of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for appellee.
   SMITH, Justice.

The plaintiff below, SouthTrust Bank, appeals the trial court’s denial of its motion to compel arbitration of the counterclaim asserted by the defendant, George C. Bowen, Jr. We reverse and remand.

Facts and Procedural History

In 1997, Bowen and Howard Eugene Womack formed a general partnership, B & W Farms, to operate a farm. In February of that year, SouthTrust made an installment loan in the amount of $250,453.50 and a revolving loan in the amount of $401,566.50 to Bowen, Womack, and B & W Farms. Several advances were made on the revolving loan until May 15, 1998, when the outstanding principal balance of that loan — approximately $244,905.70— was converted to a term loan. As part of the collateral for the term loan, Womack took out a mortgage on certain property in Houston County owned by his wife, Edna Womack, and his stepchildren, Cory Kelly and Casey Kelly Eiland (“the Womack-Kelly mortgage”). In executing the mortgage, it appears that SouthTrust allowed Womack to take the mortgage instrument to Edna, Corey, and Casey for their signatures. Womack then returned the mortgage instrument to SouthTrust, and a SouthTrust employee apparently notarized Edna’s, Corey’s, and Casey’s signatures. It is alleged in the record that those signatures were forged.

On July 12, 2002, Bowen individually executed a promissory note with South-Trust in the amount of $519,876.48. Bowen used part of the proceeds of the note to purchase all the previous loans made to him, Womack, and B & W Farms. Additionally, as part of that transaction, South-Trust assigned the Womack-Kelly mortgage to Bowen. During this transaction, Bowen also executed a mortgage dated July 12, 2002, on his own property, with a maximum lien of $144,000 that served as security for the promissory note.

On May 8, 2003, Bowen executed another promissory note with SouthTrust in the amount of $47,200 and used the proceeds to obtain a release of certain judgment liens against property Womack owned. This promissory note contained an arbitration provision; that provision stated, in part:

“I and [SouthTrust] agree that all disputes, claims and controversies between us whether individual, joint, or class in nature, arising from this Note or otherwise, including without limitation contract and tort disputes, shall be arbitrated pursuant to the Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either party.... The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.”

On May 9, 2003, Edna, Cory, and Casey sued SouthTrust in the Houston Circuit Court, alleging that the Womack-Kelly mortgage was a fraudulent mortgage and that their purported signatures on the mortgage instrument were forgeries. They sought damages under various causes of action, including slander of title.

On June 20, 2003, Bowen and Millicent Bowen executed a promissory note with SouthTrust in the amount of $46,885.68. The note contained an arbitration provision identical to the provision found in the May 8, 2003, note. On July 3, 2003, Bowen and Millicent subsequently executed a home-equity line-of-credit agreement (“the home-equity loan”) with SouthTrust. The home-equity loan contained an arbitration provision, which stated, in part:

“You and we agree that all disputes, claims and controversies between us whether individual, joint, or class in nature, arising from this Agreement or otherwise, including without limitation contract and tort disputes, shall be arbitrated pursuant to‘ the Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either party.... The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.”

This home-equity loan was secured by a mortgage, which also contained an arbitration provision that stated, in pertinent part:

“Borrower and Grantor and Lender agree that all disputes, claims and controversies between us whether individual, joint; or class in nature, arising from this' Mortgage or otherwise, including without limitation contract and tort disputes, shall be arbitrated pursuant to the Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either party. The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.”

SouthTrust alleges that the home-equity loan was to be used to pay for farm-supply expenses owed by B & W Farms.

On March 24, 2004, SouthTrust sued Bowen, Womack, and B & W Farms. The complaint alleged that Womack, acting on behalf of B & W Farms, fraudulently misrepresented that the signatures on the Womack-Kelly mortgage were genuine. The complaint alleged that as a result of Womack’s misrepresentations, Edna, Cory, and Casey had sued SouthTrust for damages for slander of title and other claims. SouthTrust thus sought a judgment against Womack, Bowen, and B & W Farms for all sums it may be required to pay in the action filed by Edna, Cory, and Casey. The complaint also alleged that Bowen had failed to make payments on three of the notes: the July 12, 2002, note; the May 8, 2003, note; and the June 20, 2003, note. The complaint alleged that Bowen still owed large sums on the notes, and it sought a judgment for the outstanding balances as well as interest and other costs.

Bowen and Womack each filed an answer. Bowen’s answer contained a counterclaim in which he alleged that South-Trust had fraudulently represented to him that the Womack-Kelly mortgage, was a valid mortgage when he entered into the July 12, 2002, note with SouthTrust and the Womack-Kelly mortgage was assigned to him. Bowen thus sought compensatory and punitive damages, alleging that the Womack-Kelly mortgage was worthless.

On June 9, 2004, SouthTrust filed a motion to compel Bowen to submit his counterclaim to arbitration and to stay further proceedings in the case pending the arbitration. Specifically, SouthTrust argued that arbitration provisions in the May 8, 2008, note; the June 20, 2003, note; the July 3, 2003, home-equity loan; and the July 3, 2003, mortgage required Bowen’s counterclaim to be submitted to arbitration. SouthTrust’s motion was supported by evidentiary exhibits, including affidavits of two SouthTrust Group vice presidents, C. Robert Whiddon and Heather Thorn-burgh. Bowen responded to the motion, and, after several continuances, the trial court held a hearing on the motion. The motion was denied on November 3, 2004. SouthTrust appeals.

Standard or 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.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore: “ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

I.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), “ ‘mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.’ ” Allied Williams Cos. v. Davis, 901 So.2d 696, 699 (Ala.2004) (quoting Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998)). Section 2 of the FAA provides, in pertinent part:

“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.

SouthTrust submitted evidence of the existence of four contracts that called for arbitration. Thus, we must determine whether those contracts “in-volvfed]” interstate commerce under the FAA. Bowen argues that the transaction in this case did not involve or affect interstate commerce because, he argues, there was no evidence indicating that Bowen was involved in any interstate business or that any of the debt was secured by any out-of-state “goods.”

“In determining whether a transaction ‘involves’ interstate commerce, this Court looks to whether Congress’s Commerce Clause power can reach the activity that is the basis of the transaction:
“ ‘The Supreme Court has acknowledged that the FAA is a constitutional exercise of Congress’s Commerce Clause power.... [Economic or commercial transactions (such as, for example, the buying and selling of goods or services, contracting for employment, etc.), even one that is purely intrastate, are within the reach of the FAA if the “ ‘general practice’ those transactions represent” has, in the aggregate, a substantial effect on interstate commerce. Citizens Bank [v. Alafabco, Inc., 539 U.S. 52, 58 (2003) ].
“ ‘... In a very real sense, an argument that a transaction does not “involve” commerce under the FAA is actually an argument that Congress does not have the constitutional power under the Commerce Clause to reach and regulate that type of transaction. As the decisions of the United States Supreme Court have made clear, there are few, if any, economic or commercial transactions that are beyond the reach of Congress’s commerce power. Furthermore, virtually every kind of industry, small or large, is currently regulated by some sort of federal statute enacted pursuant to Congress’s commerce power....
“ ‘... While there can be no per se rule that would preclude a trial court’s role in evaluating whether a contract “evidencies] a transaction involving commerce,” see [United States v.] Morrison[, 529 U.S. 598, 614 (2000) ], given the above, a trial court evaluating a contract connected to some economic or commercial activity would rarely, if ever, refuse to compel arbitration on the ground that the transactions lacked “involvement” in interstate commerce.’
“Service Corp. Int’l v. Fulmer, 883 So.2d 621, 627-29 (Ala.2003) (footnotes omitted).
“In deciding whether a contract calling for arbitration triggers the application of the FAA, this Court must determine whether the transaction ‘affected interstate commerce or if the economic activity in question represents a general practice subject to federal control. If either of these questions can be answered affirmatively, the FAA is triggered.’ Huntsville Utils. v. Consolidated Constr. Co., 876 So.2d 450, 454-55 (Ala.2003).”

Allied Williams, 901 So.2d at 699 (footnote omitted).

Whiddon testified in his affidavit that, in arranging the home-equity loan and the mortgage that secured it, South-Trust obtained a “flood certification” and a title policy from a Florida corporation. Additionally, SouthTrust obtained credit reports from a Georgia corporation in connection with the May 8, 2003, and June 20, 2003, loans. Whiddon and Thornburgh both testified that, in connection with all its loans and mortgages, SouthTrust must comply with numerous federal regulations and is regulated by the Federal Deposit Insurance Corporation. Finally, South-Trust does business and maintains branches in numerous states throughout the Southeast.

“‘Banking and related financial activities are of profound local concern.... Nonetheless, it does not follow that these same activities lack important interstate attributes.’ ” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (quoting Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 38-39, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980)). It appears from the evidence submitted that SouthTrust’s lending is a “general practice subject to federal control.” Moreover, the loans in this case required numerous activities that crossed state lines. Although Bowen states — without evidentiary support in the record — that his business was solely an intrastate affair, we hold that SouthTrust presented substantial and un-rebutted evidence of the requisite effect on interstate commerce.

Because SouthTrust proved the existence of contracts calling for arbitration and that those contracts evidenced transactions affecting interstate commerce, the burden shifted to Bowen to present evidence that the arbitration provisions were not valid or did not apply to the dispute in question. Vann, 834 So.2d at 752-53.

II.

Bowen argues that the arbitration provisions proffered by SouthTrust are found in contracts executed after the transaction at issue in his counterclaim— Bowen’s acquisition of the Womack-Kelly mortgage. Bowen maintains that his counterclaim arose out of the July 12, 2002, transactions and that none of the contracts evidencing those transactions contain an arbitration provision. South-Trust, on the other hand, argues that the language in the arbitration provisions in the subsequent contracts is broad enough to encompass Bowen’s counterclaim.

“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)....”

Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 103 (Ala.2003).

“The scope of the arbitration clause is a question of the intent of the parties.” Larkin, 857 So.2d at 103. However,

“When a court interprets the language of an arbitration provision, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’ Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).”

Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001). Because of the strong federal policy in favor of arbitration, this Court must “resolve any ambiguities as to the scope of the arbitration agreement in favor of arbitration.” AmSouth Bank v. Dees, 847 So.2d 923, 933 (Ala.2002).

This Court has “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.” Larkin, 857 So.2d at 103. In AmSouth Bank v. Dees, supra, the defendant, a bank, held a mortgage on the plaintiffs’ home. Subsequently, the plaintiffs entered into a line-of-credit agreement with the bank. The line-of-credit agreement contained an arbitration provision, which stated, in pertinent part: “ ‘[A]ny controversy, claim, dispute, or disagreement arising out of, in connection with, or relating to this Agreement or your Loan shall be settled by arbitration ....’” 847 So.2d at 928. Later, the bank combined the debt owed on the prior mortgage with the debt owed on the line-of-credit agreement. The bank then charged the plaintiffs the interest rate applicable to the line of credit, which was significantly higher than the original interest rate on the mortgage.

This Court held that, given the broad language of the arbitration provision at issue and the factual link between the two transactions, the dispute regarding the previously executed mortgage, which contained no arbitration provision, was encompassed within the arbitration provision in the subsequently executed line-of-credit agreement. 847 So.2d at 936.

The evidence in this case demonstrates a factual link between the July 12, 2002, promissory note — which gave rise to Bowen’s counterclaim against South-Trust — and the subsequently executed agreements that contain arbitration provisions. C. Robert Whiddon, a SouthTrust Group vice president who, among other things, managed SouthTrust’s “private banking department,” stated in his affidavit in support of SouthTrust’s motion to compel arbitration that he regularly dealt with Bowen, Womack, and B & W Farms and that he was familiar with them and their dealings with SouthTrust. Whiddon stated that because he was in charge of overseeing how funds were disbursed from SouthTrust, he was familiar with how Bowen, Womack, and B & W Farms used the funds they borrowed from SouthTrust. Wfiiiddon testified that Bowen, Womack, and B & W Farms engaged in a series of related financial transactions with South-Trust. Bowen requested that several existing promissory notes that Bowen, Wom-ack, and B & W Farms had executed with SouthTrust be consolidated into what ultimately became the July 12, 2002, promissory note. According to Whiddon, B & W Farms owed a substantial debt to a farm-supply store in Dothan and funds advanced under the July 3, 2003, home-equity loan— secured by the mortgage — were used to make payments on B & W Farms’ debt to the farm-supply store. Whiddon further stated:

“The funds that Bowen, Womack and [B & W Farms] borrowed from [South-Trust] during the series of financial transactions between them, including those funds obtained from the Home Equity Line Loan and the funds represented in the Promissory Note in the principal sum of $519,876.48, were utilized principally for [B & W Farms’] farming operation or to pay debts and obligations associated with the partnership. The funds obtained from [South-Trust] for [B & W Farms’] farming operation were used to purchase various items such as seed, chemicals and fuel for equipment related to the production of row crops.”

Bowen’s response to the motion to compel arbitration included no evidentiary exhibits disputing SouthTrust’s evidence indicating that the various loans to Bowen were made to support B & W Farms’ operations.

From the record before-us, it appears that the July 12, 2002, promissory note— the transaction through which Bowen was assigned the Womack-Kelly mortgage— the May 8, 2003, note; the June 20, 2003, note; and the July 3, 2003, home-equity loan and mortgage were are all part of the series of loans and contracts over a number of years intended to provide funds to support the operations of B & W Farms. SouthTrust’s evidence thus demonstrates a connection and relationship between the July 12, 2002, note — which gave rise to the legal action between SouthTrust and Bowen and which did not contain an arbitration provision — and the subsequently executed contracts between SouthTrust and Bowen that contain agreements to arbitrate.

The arbitration provisions at issue in the instant case are virtually identical, essentially reading as follows: “[SouthTrust and Bowen] agree that all disputes, claims and controversies between us ... arising from this [contract] or otherwise ... shall be arbitrated.... ”

The word “otherwise” is defined as: “In a different manner; in another way, or in other ways.” Black’s Law Dictionary 1101 (6th ed.1990). Thus, the arbitration provision could read: “[SouthTrust and Bowen] agree that all disputes, claims and controversies between us ... arising from this [contract] or [in a different manner, in another way, or in other ways] ... shall be arbitrated....” The scope of such language is extremely broad, covering not only disputes between the parties that arise from the notes, but also disputes that arise in different manners in other ways.

Given the broad language of the arbitration provisions, the factual relationships between the loans in this case, and the strong policy requiring this Court to interpret the scope of an arbitration provision in favor of embracing arbitration, we cannot conclude “with positive assurance” that the arbitration provisions at issue in this case do not cover Bowen’s counterclaim. Colquitt, 808 So.2d at 1024. Therefore, Bowen failed to meet his burden of establishing that the dispute in this case is not within the scope of the arbitration provisions.

III.

Bowen argues that, even if the arbitration provisions cover the dispute in this case, SouthTrust has waived its right to arbitration by substantially invoking the litigation process. We disagree.

“ ‘It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process, and, if so, whether the opposing party would be prejudiced by a subsequent order re quiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.’
“Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995) (citations omitted). The courts will not lightly infer a waiver of the right to compel arbitration; thus, the burden on the party seeking to prove waiver is a heavy one.”

U.S. Pipe & Foundry Co. v. Curren, 779 So.2d 1171, 1174 (Ala.2000) (emphasis added). Additionally, as this Court has consistently noted: “[T]here is a presumption against a court’s finding that a party has waived the right to compel arbitration.” Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 108 (Ala.1997). See also Conseco Fin. Corp.Alabama v. Salter, 846 So.2d 1077, 1080 (Ala.2002) (“We note that a presumption exists against a finding that a party has waived the right to compel arbitration.”); Blue Ribbon Homes Super Ctr., Inc. v. Bell, 821 So.2d 186, 191 (Ala.2001) (“We note that there is a presumption against finding that a party has waived the right to compel arbitration.”); Zedot Constr., Inc. v. Red Sullivan’s Conditioned Air Servs., Inc., 947 So.2d 396, 399 (Ala.2006); Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1093 (Ala.2005); and Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000).

In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration substantially invoked the litigation process, and (2) that the party opposing arbitration would be substantially prejudiced by an order requiring it to submit to arbitration. Curren, 779 So.2d at 1174; Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). Bowen’s opposition to the motion to compel arbitration was not sup-, ported by an affidavit, and it failed to present any evidence demonstrating that Bowen would be prejudiced if, at this point in the proceedings, he were compelled to arbitrate his counterclaim. SouthTrust filed its motion to compel arbitration within three months of filing the complaint, and it does not appear from the materials before this Court that any discovery has taken place. Because Bowen presented no evidence proving he would be substantially prejudiced, he has failed to meet his “heavy burden” in demonstrating that SouthTrust waived its right to arbitration. Cf. Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001) (“If [a] party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.”).

Conclusion

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

REVERSED AND REMANDED.

LYONS, HARWOOD, WOODALL, STUART, and BOLIN, JJ., concur.

SEE, J., concurs specially.

PARKER, J.,

concurs in part and dissents in part.

SEE, Justice

(concurring specially).

I agree with the majority’s conclusion that the agreements under discussion implicate the Federal Arbitration Act; that the arbitration provisions that George C. Bowen, Jr., signed require him to submit his counterclaim to arbitration; and that SouthTrust Bank has not waived its right to demand arbitration of Bowen’s counterclaim. I write separately simply to note that the broad scope of the language in these arbitration provisions encompasses all disputes that might arise between Bowen and SouthTrust, whether based on these agreements “or otherwise.” Thus, although I believe that the discussion of the factual link between the first agreement and the subsequent agreements is helpful in demonstrating that the arbitration provisions encompass the dispute, I do not believe that it is necessary to the discussion. See Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 103 (Ala.2003) (“[W]e 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.”); Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 276 (Ala.1999) (“[I]f the arbitration clause contains language stating that it applies to ‘all transactions between us’ or ‘all business with us,’ then we may apply the arbitration clause retroactively.”).

PARKER, Justice

(concurring in part and dissenting in part).

I concur in parts I and III of the “Discussion” section of the majority opinion. I respectfully dissent as to part II, in which the majority errs by treating AmSouth Bank v. Dees, 847 So.2d 923 (Ala.2002), as logically analogous to the instant case. It is not.

In Dees, an initial mortgage transaction, which had no arbitration provision associated with it, was followed by a line-of-credit transaction, which did include an arbitration provision. The debt from the two transactions was combined in a third transaction, and the interest rate applicable to the line of credit was applied to the combined debt. Under the circumstances, this Court held that the arbitration provision in the line-of-credit agreement applied to the combined debt.

There is no such combination of transactions in this case. Instead, the closest the July 12, 2002, promissory note, which contains no arbitration provision, and the subsequent agreements, which contain arbitration provisions, come is that the proceeds from the separate agreements were used for similar purposes. This level of “factual link,” as the majority opinion describes it, is very tenuous and not logically analogous to the facts of Dees, which, therefore, cannot be properly treated as dispositive of the issue in this case.

      . The record and briefs do not identify Millicent’s relationship to Bowen.

      . Womack eventually filed a petition in bankruptcy; he is not a party to this appeal.

      . In response to the motion to compel arbitration, Bowen submitted no evidence indicating that the transactions in this case did not affect interstate commerce.

      . The current edition of Black’s Law Dictionary has no entry for the word "otherwise.”

      . Because we hold that Bowen failed to demonstrate that he would be substantially prejudiced by an order requiring him to submit to arbitration, we need not address whether SouthTrust substantially invoked the litigation process.


author: LYONS, Justice.

text:
    Charles E. ROBINSON, Jr., and Jacqueline B. Robinson v. Kenneth T. EVANS et al.
    1051344.
    Supreme Court of Alabama.
    Dec. 8, 2006.

      William J. Trussell of Trussell & Fun-derburg, P.C., Pell City; and Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellants.
    Carol H. Stewart, Scott A. Boykin, and Edward D. Cotter of Burr & Forman, LLP, Birmingham, for appellees.
   LYONS, Justice.

Charles E. Robinson and Jacqueline B. Robinson appeal from the Baldwin Circuit Court’s judgment denying their claims for termination of Sunrise Village Condominium, a condominium in Gulf Shores, pursuant to the provisions of the Condominium Ownership Act, § 35-8-1 et seq., Ala.Code 1975 (“the Act”), and partition of the condominium property pursuant to § 35-8-20. The trial court held that the Robinsons failed to prove the prerequisites to termination — the total destruction of all the improvements on the condominium property or the substantial destruction, deterioration, or obsolescence of the condominium property. We affirm.

I. Facts and Procedural Background

The Robinsons and all the defendants (hereinafter “the adverse owners”) are either owners of units in the condominium or holders of security interests in one or more units in the condominium. On September 16, 2004, Hurricane Ivan made landfall in Gulf Shores as a category 3 hurricane and damaged the condominium. The condominium is managed by the Sunrise Village Condominium Owners Association, Inc. (“the Association”). The board of directors of the Association, of which Charles Robinson was a member, sent notice to all owners of units in the condominium, informing them that a special meeting of the Association was to be held and that the “[p]urpose of the meeting is to discuss and vote on options that are available to owners of Sunrise Village Condominium Owners Association, Inc.”

At the meeting, a motion to repair the condominium failed, and a vote was taken on whether to terminate the condominium, i.e., to remove it from the provisions of the Act. This vote was taken over the objection of one owner on the basis that the notice to the owners that the issue of termination was to be discussed at the meeting was inadequate according to the Association’s bylaws. Twenty owners voted to remove the condominium from the provisions of the Act; 11 voted not to terminate; and 4 abstained from voting on the ground that the vote was improper because notice was inadequate. The Act requires a unanimous vote to remove a condominium from its provisions, with certain exceptions, which will be discussed later.

Following the failed termination vote, the Robinsons, in their individual capacities, filed a complaint in the Baldwin Circuit Court for termination of the condominium under the Act and for a partition of the property. The trial court held a bench trial at which the parties presented extensive testimony concerning the degree of damage to the condominium and the value of the land on which the condominium was located. The trial court subsequently entered findings of fact and conclusions of law and a final judgment in favor of the adverse owners, denying the Robinsons’ claims for termination of the condominium and partition of the property. The Robinsons appealed.

II. Standard of Review

The evidence in this case was presented to the trial judge in a bench trial. “ ‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)); see also First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). As this Court has stated,

“ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, “that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.” Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).

III. Analysis

The Robinsons filed this action under § 35-8-20(b), Ala.Code 1975, seeking to remove the condominium from the provisions the Act. Section 35-8-20(b) provides:

“A circuit court may grant the petition of any unit owner for a removal of the condominium property from the provisions of this chapter and a partition under the following circumstances:
“(1) In the event of total destruction of all improvements of the condominium property and no agreement is reached to rebuild such improvements within a reasonable time, or such rebuilding has not been completed within a reasonable time.
“(2) In the event of substantial destruction, deterioration or obsolescence of the condominium property and no agreement is reached to repair, reconstruct or rebuild such property within a reasonable time, or such repair, reconstruction or rebuilding has not been completed within a reasonable time, and at least a majority of votes of unit owners shall be cast in favor of such removal.”

(Emphasis added.) Section 35-8-20(b) allows a unit owner to remove a condominium from the provisions of the Act upon a majority vote of all condominium owners, i.e., without the unanimous vote that is required for termination of a condominium under § 35-8-20(a). Because the vote to terminate the condominium was not unanimous, the Robinsons must rely on the alternate grounds for termination set forth in § 35-8-20(b).

Section 35-8-20(b)(l) provides for termination of a condominium without regard to the wishes of the majority of the condominium owners “[i]n the event of total destruction of all improvements of the condominium property and no agreement is reached to rebuild such improvements within a reasonable time.” The Robin-sons argue that because the cost to repair the condominium exceeds the fair-market value of the improvements of the condominium property, there was a “total destruction of all improvements of-the condominium property” sufficient to trigger the termination provisions of § 35-8-20(b)(1). However, the Robinsons fail to cite any Alabama caselaw to support that proposition.

Black’s Law Dictionary defines “total loss” as follows:

“[T]he complete destruction of insured property so that nothing of value remains and the subject matter no longer exists in its original form. Generally, a loss is total if, after the damage occurs, no substantial remnant remains standing that a reasonably prudent uninsured owner, desiring to rebuild, would use as a basis to restore the property to its original condition. — Also termed actual total loss. ”

964-65 (8th ed.2004). Black’s defines the separate concept of “constructive total loss” as “[s]uch serious damage to the insured property that the cost of repairs would exceed the value of the thing repaired. — Also termed constructive loss.” 964. To give the language of § 35-8-20(b)(1) the meaning the Robinsons ascribe would require us to rewrite the statute so as to define “total destruction” as “constructive-total loss.” Had the legislature intended to define “total destruction of all improvements of the condominium property” in terms broader than their plain meaning, it could have easily used words that would embrace the concept of constructive total loss.

When statutory language is clear and unambiguous, this Court is compelled to give that language'its plain meaning, giving effect to the apparent intent of the legislature. Ex parte T.B., 698 So.2d 127, 130 (Ala.1997) (“When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.”). Applying the statute according to its plain meaning, that is, total destruction means total destruction, not constructive total loss, we must determine whether the improvements to the condominium property were totally destroyed.

The adverse owners presented evidence to the trial court indicating that the piling system of the condominium remained intact following Hurricane Ivan, that the roofs on both condominium buildings had been replaced, and that the walls and structural system of the condominium were largely unaffected. Moreover, the Robinsons concede that the condominium improvements, following Hurricane Ivan, had a fair-market value of $991,416. Because the trial court’s finding of absence of total destruction is supported by credible evidence, we affirm its rejection of § 35-8-20(b)(1) as a basis for termination.

In the alternative, the Robinsons rely on § 35 — 8—20(b)(2), which provides that, in the event of “substantial destruction, deterioration or obsolescence of the condominium property,” the condominium can be removed from the provisions of the Act by a majority vote of the unit owners. Relying on the Alabama Law Institute’s report to the Counsel of the Advisory Committee, the Robinsons contend that the term “condominium property” in § 35-8 — 20(b)(2) was never meant to be applied so as to include the real property upon which the improvements were made. We are guided by the unambiguous terms of the Act. “Condominium property” is defined in § 35-8-2(6), as “[t]he property covered by the [condominium] declaration and all easements, rights and interests belonging thereto or intended for the benefit thereof.”

The property covered by the declaration of condominium of Sunrise Village Condominium included:

“1. The land upon which the buildings and other improvements are located.
“5. Grounds, yards, gardens, recreation and community facilities, laundry facilities, service areas, service facilities, parking spaces and areas and driveways and driveway areas.
“7. All other parts of the condominium property and all apparatus, facilities and installations for common use or necessary or convenient to the existence or safety of the condominium.”

Further, another board member testified at trial that the purchase of a condominium unit includes “1/36 of the common elements, which includes the land and the beach,” and that the sale of a condominium unit includes “[t]he value of everything, the property and the structure.” Therefore, under § 35-8-20(b)(2), the condominium could be terminated when there is “substantial destruction, deterioration or obsolescence of the condominium property,” which, in this case, includes the real property upon which the improvements were built.

Although the Robinsons concede that the definition of “condominium property” in the condominium declaration and the Act encompasses both the real property and the improvements thereon, they insist that it does not follow that the value of the real property should be considered when determining whether there has been substantial destruction, deterioration, or obsolescence of the condominium property. This contention ignores the clear, unambiguous language of § 35-8-20(b)(2). Had the legislature intended to exclude the value of real property from the operation of § 35 — 8—20(b)(2) it could have easily used a term less expansive than “condominium property.”

The trial court noted in its findings of fact and conclusions of law that “[a]t trial ... [the Robinsons’] experts testified that the Condominium land alone, without any improvements, has substantial value)[] The [Robinsons] presented no evidence whatsoever to show that the Condominium property as defined by the Declaration of Condominium, and thus by the Act, had been substantially destroyed.” Accordingly, the trial court found that the Robinsons failed to meet their burden of proof under § 35-8-20(b)(2), because they did not show that the value of the condominium property, taking into account the value of the real property and the improvements thereon, was substantially destroyed or deteriorated, or had undergone substantial obsolescence. Because the trial court’s finding that there had not been substantial destruction, deterioration, or obsolescence of the condominium property is supported by credible evidence, we affirm its order rejecting § 35 — 8—20(b)(1) as a basis for termination of the condominium.

IV. Conclusion

Section 35-8-20(b) clearly and unambiguously provides for the termination of a condominium under two specific circumstances. Because the trial court’s conclusion that the Robinsons failed to prove the applicability of either set of circumstances in § 35-8-20(b) is based upon a correct application of the law and is supported by credible evidence, we affirm.

AFFIRMED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . The commentary in this report, upon which the Robinsons rests their argument for an alternative reading of § 35-8-20(b), has not been published in the commentary to § 35-8-20(b), nor was that commentary adopted by the legislature in the enactment of the Act.

      . There was no evidence of loss of square footage to the real property on which the condominium sits through beach erosion or loss of usable area such as through the presence of standing water on areas of lower elevation, following Hurricane Ivan.

      . We therefore do not reach the alternative basis for affirmance asserted by the adverse owners in which they challenge the adequacy of the notice of the special meeting of the Association.


author: NABERS, Chief Justice.

text:
    Jordan Lee HAMILTON, by and through his mother and next friend, Kathleen SLATE-HAMILTON v. Jason CONNALLY.
    1050655.
    Supreme Court of Alabama.
    Dec. 8, 2006.

      Raymond L. Jackson, Jr., and Scott R. Crouse of Jackson Law Group, P.C., Auburn; and Kenneth Funderburk of Funder-burk, Day & Lane, Phenix City, for appellant.
    Joshua J. Jackson of Samford & Den-son, LLP, Opelika, for appellee.
   NABERS, Chief Justice.

On February 17, 2003, Donald Hamilton died in Opelika. Donald had a will in which he left his entire estate to his minor son, Jordan Lee Hamilton, with the stipulation that the estate was to be kept in a trust managed by Jason Connally until Jordan’s 23d birthday.

On March 25, 2005, Jordan, through his mother and next friend, Kathleen Slate-Hamilton, filed a petition with the Russell County Probate Court to remove Connally as executor of the estate and as trustee of the trust. Jordan also requested that Connally be ordered to repay the estate for certain legal fees he had paid in a previous dispute between the parties, which legal fees, Jordan alleges, were not incurred or paid for the benefit of the estate. Jordan also sought an accounting of the estate funds.

On March 29, 2005, the probate court ordered Connally to file an accounting within 14 days. In response, Connally petitioned the Russell Circuit Court to remove the case from the probate court. After the circuit court granted his petition, Connally moved the circuit court to reconsider the probate court’s order requiring an accounting. Jordan opposed the motion and again requested an accounting.

On August 19, 2005, the circuit court held a hearing. On October 26, 2005, the circuit court entered the following order:

“It is hereby ordered, adjudged, and decreed:
“1. That [Jordan’s] motion to require accounting is denied;
“2. That the executor’s motion for reconsideration of order and citation for accounting is hereby granted;
“3. That it is further ordered that the executor, Jason Connally reimburse the estate the costs arising exclusively from the defense of the declaratory judgment petition and subsequent appeal.”

Notably, the order did not address Jordan’s request to remove Connally as executor and trustee nor did it quantify the exact dollar amount Connally was to repay the estate.

On November 17, 2005, Jordan moved the court to amend its October 26, 2005, order to specify the exact amount Connally was required to repay the estate. Jordan also requested that Connally be ordered to pay the guardian ad litem fee of $7,562.50 in this case. The circuit court did not rule on Jordan’s motion, and, he alleges, it was denied by operation of law after 90 days pursuant to Rule 59.1, Ala. R. Civ. P. On February 17, 2006, Jordan filed this appeal.

On appeal, Jordan urges this Court to reverse the October 26, 2005, judgment of the circuit court and to remand the cause 1) for evidentiary proceedings to ascertain the sum certain that Connally owes the estate, and 2) for an accounting of the assets of the estate. Connally has moved this Court to dismiss Jordan’s appeal, arguing that it seeks review of a nonfinal judgment. We agree, and we dismiss the appeal.

“An appeal will ordinarily he only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). “[Wjithout a final judgment, this Court is without jurisdiction to hear an appeal.” Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).

As Jordan himself has acknowledged, the circuit court’s October 26, 2005, order failed to resolve one of the central issues pending in this case — how much money Connally was required to repay the estate. “ ‘Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’ ” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361 (Ala.2004) (quoting Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977)). Because this issue has yet to be resolved, the circuit court’s order cannot be viewed as a final judgment that will support an appeal. Accordingly, Connally’s motion to dismiss is hereby granted, and the appeal is dismissed.

APPEAL DISMISSED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . Jason Connally is a banker in Columbus, Georgia, and is the executor of Donald's estate and trustee of the trust.

      . The previous legal dispute between the parties concerned a deed executed by Connally on behalf of Donald three days before Donald died. The deed purported to transfer real property held in Jordan’s name into a family partnership administered by Connally. After Donald’s death, the guardian ad litem appointed to represent Jordan's interest filed a declaratory-judgment action asking the trial court to determine whether that deed was valid. After the trial court declared the deed void, Connally appealed that judgment to this Court. That appeal was subsequently dismissed, at Connally's request. Connally used funds from Donald's estate to pay the legal fees incurred in that declaratory-judgment action.

      . Jordan has acknowledged that this Court might conclude that the judgment he appeals from is nonfinal. In his brief, he states:
      "If this Court should find that, because the order is not final on this issue, no appeal related to it can lie, [Jordan] respectfully requests this Court to treat this appeal as a petition for the writ of mandamus and order the trial court to issue a final order that specifies an amount of monetary damages. See Ex parte Wharfhouse Restaurant and Oyster Bar, Inc., 796 So.2d 316, 321 (Ala.2001) (granted writ of mandamus directing trial court to 'enter a final judgment disposing of Wharfhouse's claims or ... [setting] the case for a pretrial conference.’).”
      However, Jordan makes no attempt to elaborate on this argument or to otherwise demonstrate that he is entitled to the extraordinary relief afforded by a writ of mandamus. Accordingly, we decline to treat this appeal as a petition for the writ of mandamus. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) ("[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument”).