author: ISHEE, J.,

text:
    Ransom JONES, Clark Stewart, Sali Westmoreland, Mike Westmoreland, Tim Stewart, Nick Crutcher, Mitch Doze and Michelle Doze d/b/a Mobile Hill Hunting Club, Appellants v. GREENE COUNTY BOARD OF EDUCATION, Appellee.
    No. 2006-CA-00463-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.
    Rehearing Denied Aug. 14, 2007.

      Charles 0. Jones, Jackson, attorney for appellants.
    Ryan Robertson Sadler, David Earl Ro-zier, Jackson, attorneys for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Greene County Circuit Court denied the petition for a writ of certiorari from the Mobile Hill Hunting Club regarding the grant of an easement by the Greene County Board of Education to Ted Rounsaville. The circuit court further denied a motion to reconsider the denial of certiorari. Aggrieved, Mobile Hill Hunting Club asserts the following issues on appeal:

I. Whether the Greene County Circuit Court had jurisdiction to hear an appeal of the decision by the Greene County Board of Education to grant an easement.
II. Whether the circuit court, assuming it lacked jurisdiction, should have transferred the case to chancery court instead of dismissing it.
III. Whether the circuit court erred in not applying Rule 5.03 of the Uniform Circuit and County Court Rules.
IV. Whether the Greene County Board of Education had authority to grant an easement across Sixteenth Section land.
V. Whether the Greene County Board of Education had the authority to prohibit a certified court reporter from recording the board meeting.

Finding no error, we affirm.

FACTS

¶ 2. On January 18, 2005, the appellants, known as Mobile Hill Hunting Club, entered an agreement to lease certain sixteenth section land from the Greene County Board of Education. In October 2005 Ted Rounsaville requested an easement from the board of education across the land leased to the Hunting Club. The issue came before the Greene County Board of Education in November, but the Board continued it until December 12, 2005, at which point the Board granted the easement to Rounsaville.

¶ 3. In response to the Board’s grant of the easement, the Hunting Club petitioned the Greene County Circuit Court for a writ of certiorari on • January 25, 2006. The circuit court denied the petition on February 9, stating it lacked jurisdiction over the matter. The Hunting Club then filed a motion to reconsider with the circuit court. However, the court denied this motion, again stating it lacked jurisdiction. Aggrieved, the Hunting Club appeals.

STANDARD OF REVIEW

¶ 4. Jurisdiction is a matter of law, and this Court will apply a de novo standard when reviewing a matter of law. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05(¶ 5) (Miss.1998).

ISSUES AND ANALYSIS

I. Whether the Greene County Circuit Court had jurisdiction to hear an appeal of the decision by the Greene County Board of Education to grant an easement.

¶ 5. The Mobile Hill Hunting Club contends that jurisdiction was proper in the Greene County Circuit Court for its appeal of the Greene County Board of Education’s decision. The Hunting Club asserts that the school board’s decision to grant an easement was a judicial act, and not an administrative act; therefore, the court should not have denied the petition for a writ of certiorari.

¶ 6. The circuit court relied on Anderson v. Franklin County Sch. Bd., 164 Miss. 646, 647-48, 146 So. 134, 134 (1933), which held that an appellant may not remove to circuit court, by writ of certiorari, an act of an inferior tribunal that is administrative or legislative in nature. Id. Conversely, a circuit court may only review an act of an inferior tribunal that is judicial or quasi-judicial in nature. Mabray v. Sch. Bd. of Carroll County, 162 Miss. 632, 635, 137 So. 105, 105-06 (1931). The court went on to point out that a legislative act is one which provides what is to be done in the future, while a judicial act determines what the law is or what rights the parties possess. Id. at 636, 137 So. 105. An act that is not clearly judicial is either administrative or legislative. Id.

¶ 7. Based on the above reasoning, jurisdiction is proper in the circuit court if the decision by the school board was judicial, but the court may not hear the case if the school board acted administratively or legislatively when it granted the easement to Rounsaville.

¶ 8. In arguing the school board acted in a judicial manner, the Hunting Club compared the grant of an easement to Rounsaville to a decision of the special court of eminent domain, created by Mississippi Code Annotated section 65-7-201 (Rev.2005). We do not agree with this comparison, however. The court of eminent domain sits to decide the rights of the distinct parties before it. On the other hand, the Greene County Board of Education, in the present case, decided to grant an easement across land for which it had responsibility to manage and make such decisions. In granting the easement the school board acted in an administrative capacity by managing its affairs and not in a judicial capacity by deciding the rights of parties. While the Hunting Club was the leaseholder of the land over which the school board granted the easement, the lease agreement expressly stated that the Hunting Club accepted the land “subject to any and all easements ... or to any such agreements that may hereafter be granted from time to time to others by LESSOR.”

¶ 9. By granting the lease, the school board was administering land over which it had authority. It was not sitting in a judicial capacity to decide which party had better claim to make use of thé land. In addition to its authority over the land, the lease agreement with the Hunting Club specifically provided for a situation in which the Board would grant such an easement. Ultimately, the Board was acting in an administrative capacity when it granted the easement and not acting judicially. Since the circuit court may only review a judicial decision of an administrative agency, we find that the circuit court properly denied certiorari. Thus, this issue is without merit.

II. Whether the circuit court should have transferred the case to chancery court instead of dismissing it.

¶ 10. The Hunting Club alleges that, if the circuit court did lack jurisdiction, it should have transferred the petition for writ of certiorari to the chancery court. In support of this, the Hunting Club cites Prisock v. Perkins, 735 So.2d 440, 443(¶ 18) (Miss.1999) for the proposition that chancery court has jurisdiction to review an administrative agency’s decision. In Prisock, the supreme court reversed the circuit court’s dismissal of an injunction for lack of jurisdiction and ordered it remanded to chancery court. Id. The court specifically found that an injunction was the proper means of reviewing the school board’s decision. Id. This is distinguishable from the present case, in which the Hunting Club filed a petition for a writ certiorari to review a school board’s decision.

¶ 11. In Charter Medical Corp. v. Miss. Health Planning & Dev. Agency, 362 So.2d 180, 182 (Miss.1978) (citing Bd. of Veterinary Exam’rs v. Sistrunk, 218 Miss. 342, 347, 67 So.2d 378, 380 (1953)), which Prisock cites for its position, the court specifically finds that “an appeal by certio-rari would not be adequate” to review a school board’s decision to grant a license. In cases in which a circuit court has lacked jurisdiction over a school board decision, the supreme court has either affirmed the denial of certiorari or reversed a grant of certiorari. See Mabray, 162 Miss. at 632, 137 So. at 105 (affirming dismissal of petition for certiorari); Cumberland Tel. & Tel. Co. v. State, 135 Miss. 835, 100 So. 378 (1924) (reversing grant of certiorari and dismissing case); Bd. of Sup’rs v. Melton, 123 Miss. 615, 86 So. 369, (1920) (reversing grant of certiorari and dismissing case).

¶ 12. The Greene County Circuit Court properly denied certiorari for lack of jurisdiction, and it was not in error in failing to transfer the matter to chancery court. The proper remedy for the Hunting Club would have been to file for an injunction in the Greene County Chancery Court, which would have allowed the case to be heard on the merits. This issue is without merit.

III. Whether the circuit court erred in not applying Rule 5.03 of the Uniform Circuit and County Court Rules.

IY. Whether the Greene County Board of Education had authority to grant an easement across Sixteenth Section Land.

V. Whether the Greene County Board of Education had the authority to prohibit a certified court reporter from recording the board meeting.

¶ 13. Since the circuit lacked jurisdiction, it did not make any findings in its denial of certiorari on the remaining issues presented by the Hunting Club. This Court will not address these matters now as they are not ripe for review.

¶ 14. THE JUDGMENT OF THE GREENE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J., GRIFFIS, J.,

license: Public Domain

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Sara G. McCLURE, Appellee.
    No. 2005-CC-02189-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Sept. 4, 2007.

      Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.
    Sara G. McClure, Appellee, pro se.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Public Employees’ Retirement System of Mississippi (PERS) appeals the Hinds County Circuit Court’s decision to award disability retirement benefits to Sara McClure. This decision reversed a finding by the PERS Board of Trustees that McClure was not disabled. Finding no error in the trial court’s decision to reverse the PERS determination, this Court affirms the award of disability benefits.

FACTS

¶ 2. Sara McClure was employed as a special education teacher for more than twenty-eight years. For twelve of these years, she taught developmentally delayed children ages three to five years old in the Clarksdale; Mississippi Public School District. Because of her increased problems with blood pressure and diabetes, McClure applied for Regular Age Limited Disability benefits with the Public Employees’ Retirement System in November 2000. McClure testified that, although she loved her job, she no longer believed her health would allow her to continue employment at the school. She feared her health would continue to decline and she was not as effective as she had once been. McClure noticed she was in better control of her health problems when school was out for the summer months.

¶ 3. McClure had an extensive history of medical problems dating back to 1989. McClure was diagnosed with bilateral adrenal hyperplasia, insulin dependant diabetes, and hypertension. The medical records submitted by McClure include a letter from Dr. Charles Nause, McClure’s longtime primary physician. In his letter, Dr. Nause recommended that McClure stop teaching because high stress levels associated with her job were compromising her health. - Dr. - Nause stated, “Sarah has been a patient of mine for nearly ten years — I do think her job is contributing to instability in her medical condition and leading to continued deterioration of her health. ■ I recommend that she not work as a result of her illness that she suffers from.”

¶ 4. Shirley Morris, McClure’s principal, supported McClure’s disability claim as well. Morris often made accommodations for McClure during the school work days by allowing her to come to work late on days when her blood sugar level was severely elevated. Morris also allowed McClure to rest during the school work day by allowing her to lie down while the students took their afternoon naps.

¶ 5. McClure testified that, during the fall semester prior to filing her appeal, she missed twenty-two days of work due to illness. On one particular occasion in August 2001, McClure’s blood pressure reached 240/110 while she was at work. She experienced numbness on her face as well as specks of blood surfacing on her arms. McClure was made to rest on the floor in hopes that her blood pressure would lower. Later, she was hospitalized for several days. She continued to experience medical problems as a result of the severely elevated blood pressure level.

¶ 6. On February 8, 2001, PERS’s medical board denied McClure’s claim, and she appealed this decision before the Disability Appeals Committee. The Disability Appeals Committee made a recommendation to the PERS Board of Trustees to deny McClure’s request for disability. In their finding's, the Appeals Committee acknowledged that McClure had a history of unregulated blood sugar and blood pressure levels, despite her compliance with her doctor’s treatment. However, the Committee noted that McClure had not terminated her employment at the time she filed her appeal and was still performing her work duties! The Committee expressed “great concern” about McClure’s medical treatment plan and believed that McClure’s health situation would only improve with appropriate treatment from a hypertension expert. The committee noted the following in its findings:

There will always be ■ swings in [McClure’s] blood sugar of 70 — 400, but she is now able to work and with proper management, she will continue to be able to work. We believe staying at home is not a proper management program. The current lack of medical management does not have to be a permanent situation.

¶ 7. The Committee did not believe the evidence supported finding McClure was disabled. The Committee reasoned that a hypertension specialist would be able to evaluate McClure and place her on a better treatment program that would improve her health.

¶ 8. The PERS Board of Trustees adopted the recommendation of the Disability Appeals Committee to deny McClure disability benefits. On January 9, 2002, McClure appealed the Board’s decision to the Hinds County Circuit Court. The circuit court reversed the order of the PERS Board of Trustees, finding McClure presented sufficient evidence to support her disability claim. The court found PERS’s decision to deny disability benefits was arbitrary and capricious because it was not supported by substantial evidence. According to the court, the record was clear that McClure was unable to perform her employment duties and she continued to struggle with her health, despite her medication. The court made note that McClure’s treating physician and employer verified her health claims as well. PERS timely filed this present appeal of the circuit court’s decision.

STANDARD OF REVIEW

¶ 9. This Court is held to the same standard as lower courts when reviewing administrative agency decisions. Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002). We do not re-weigh the facts of the case. Public Employees Ret. Sys. v. Shurden,, 822 So.2d 258, 263(1113) (Miss. 2002). We may only “review an administrative agency’s order to determine whether the order was (1) supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the power of the lower authority to make, or (4) violated some statutory or constitutional right of the complaining party.” Public Employees’ Ret. Sys. v. Burt, 919 So.2d 1150, 1156(¶ 16) (Miss.Ct. App.2005).

¶ 10. We perform a limited appellate review of agency decisions but the Court is not subjected to “wearing blinders.” Public Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284(¶ 15) (Miss.2005). An agency’s decision will be deemed arbi trary and capricious if it is not based on substantial evidence. Public Employees’ Ret. Sys. v. Allen, 834 So.2d 50, 53(1110) (Miss.Ct.App.2002). Substantial evidence is defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Shurden, 822 So.2d at 264(¶ 14).

ANALYSIS

Whether the circuit court err in finding that PERS acted arbitrarily and capriciously in denying McClure’s claim for disability benefits.

¶ 11. PERS alleges the trial court did not have authority to reverse the denial of McClure’s request for benefits because PERS’s decision was supported by substantial evidence and it was not arbitrary or capricious. The PERS Disability Appeals Committee, comprised of two physicians and one nurse/attorney, reviewed McClure’s medical reports and determined there was a lack of evidence to support McClure’s claim of disability. PERS argues the trial court erred by impermissibly re-weighing the evidence in finding that McClure presented sufficient evidence of disability. . .

¶ 12. McClure contends that she presented sufficient evidence of disability and that the PERS" Board’s decision denying disability benefits was not supported by substantial evidence in the record. According to the appellate record, McClure’s examining physician, Dr. Nause, and her employer, Morris, indicated McClure could no longer perform her employment duties because the work was compromising her health. McClure argues that PERS presented no contradictory evidence that suggests McClure is not disabled, and therefore, the decision to deny benefits is arbitrary and capricious.

¶ 13. The law does not require PERS to present evidence to contradict McClure’s assertions of disability, however, PERS decisions must be based on substantial evidence, as it is found in the record. Public Employees’ Ret. Sys. v. Thomas, 809 So.2d 690, 694(1114)(Miss.Ct.App.2001).

¶ 14. The PERS Medical Board applies the following definition to determine disability:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment by the Public Employees’ Retirement System (Section 25-22-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Miss.Code Ann. § 25-ll-113(a)(Rev.2006).

¶ 15. McClure provided very detailed testimony and medical records that she suffered from bilateral adrenal hyperpla-sia, insulin dependant diabetes and hypertension. These illnesses prevented her from performing “the usual duties of her employment.” McClure testified that she is no longer effective on her job, despite the fact that she was proactive in treating her illnesses. At her job, McClure was responsible for the basic care of three and four year old, developmentally delayed children and she had to perform tasks ranging from feeding the children to lifting the children up and changing their diapers. McClure testified that she felt better in the summer time when school was out because those times gave her opportunities to relax from the stresses of her job. During the school year, she only had the opportunities to rest on the weekends, rarely enough time for her body to recuperate from a stressful week. Besides her work at school, McClure noted that her housework at home had suffered because of her illnesses as well.

¶ 16. McClure also presented evidence that her employer could not offer her any comparable employment “without material reduction in compensation.” McClure’s principal, Morris, indicated that the school could offer “no accommodations for the job that Mrs. McClure [was] trained to do.”

¶ 17. The PERS Appeals Committee made findings that McClure was not disabled solely from reviewing McClure’s medical records and other documents filed with her disabilities request. Although Section 25-11-113 allows the PERS Medical Board to conduct an actual physical examination of the claimant, neither the PERS medical board nor any independent physician examined McClure. Dr. Nause, McClure’s physician for nearly ten years, presented the only opinion in the record.

¶ 18. PERS did not question Dr. Nause’s treatment of McClure. The board simply believed that a hypertension specialist would present a better course of treatment. Nothing in the record substantiates this belief. The medical board physicians made the following finding:

Obviously, from the medical records, most of Dr. Nause, a real problem exists with the management of Ms. McClure’s hypertension and diabetes. We recognize from Ms. McClure’s testimony that she has seen Dr. Goodman for regulation of her diabetes and we applaud her for this. But we have great concern about the total treatment that Ms. McClure is receiving. We understand that medications treating diabetes adversely affect blood pressure medicines and vice versa. While we have no complaints with Dr. Nause, we do believe that Ms. McClure would benefit from a total evaluation by a hypertension expert. Hypertension experts generally have a better overall treatment plan. We note that Ms. McClure is functioning at her job now, but it is our opinion that the situation should only improve with appropriate treatment.

¶ 19. PERS does not offer any medical evidence that suggests the alternative treatment would, in fact, restore McClure to a level of functioning capacity. PERS relies on evidence that hypertension experts “generally have a better overall treatment.” The board, in its findings, acknowledged that McClure had previously been examined by Dr. Goodman of Memphis, TN, who is a diabetes expert. According to McClure’s testimony, she began seeing Dr. Goodman in 1989 and he developed a treatment plan which Dr. Nause would assist in implementing. PERS now argues that this treatment is ineffective and McClure would be better served by finding a hypertension specialist. PERS’s argument is based chiefly on its finding that “medications treating diabetes adversely affect blood pressure medicines and vice versa.”

¶20. This Court has previously found that the evidence relied on by PERS’s in disability determinations cannot be established solely “within the confines of the doctors’ heads.” Thomas, 809 So.2d at 694(¶ 14). In Thomas, this Court rejected PERS argument that the claimant was not disabled due to the belief that diabetes was a manageable disease, if properly managed, and because the claimant had functioned so long with the disease, the disease must not have been as debilitating as claimed. Id. at 694(¶ 16). This Court acknowledged that, while PERS has the power to weigh witness testimonies, even to the point of disagreeing with assessments, the record must contain substantial evidence upon which PERS relies. Thomas, 809 So.2d at 696(¶ 23).

¶ 21. In this present appeal, PERS’s finding that McClure should improve with the treatment of a hypertension specialist is a determination made without the benefit of an actual physical examination. PERS does not reference any evidence, medical or otherwise, found within the confines of the record which support this general assertion.

¶ 22. The supreme court has also held “PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation” under Section 25-11-113(1)(c). Public Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018(¶ 11) (Miss.2003). Although PERS uses its Medical Board and Disability Appeals Committee as fact finders in disability determinations, “their opinions [are] not conclusive.” Id. at 1018(¶ 11). “The lack of substantial evidence supporting the decision to deny permanent disability benefits [will] render the decision arbitrary and capricious.” Id. at 1018(¶ 12). ¶ 23.

¶ 23. The evidence in this case does not support PERS’s decision to deny McClure disability benefits. McClure presented sufficient evidence that she satisfied the disability requirements under the statutory definition. The PERS medical board did not conduct an independent examination of McClure and failed to provide any contradictory testimony to that of her physician who treated her for over ten years. This Court has previously found that PERS could not reject the only evidence of disability presented by the claimant when there is “no contrary view of the evidence offered” unless the offered evidence was so outrageous or absurd that no reasonable person would believe it. Thomas, 809 So.2d 690 at 696(¶ 23).

¶ 24. We may not substitute our judgment for that of PERS, and we may only review its decisions if there is a finding that the decision was (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) reached beyond the scope or power given to PERS, or (4) in violation of one’s constitutional rights. Public Employees’ Ret. Sys. v. Stamps, 898 So.2d 664(¶ 27) (Miss.2005). We find PERS’s decision to deny McClure disability benefits was unsupported by substantial evidence and arbitrary and capricious. We have not re-weighed the facts of the case and neither do we find the trial court re-weighed the facts. We have examined the actual evidence in the record, as opposed to the ideas that maybe secreted in the minds of others. For these reasons, we affirm the trial court’s decision which reversed the PERS decision to deny McClure benefits.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

GRIFFIS, J.,

Dissenting.

¶ 26. I respectfully disagree with the majority. In my opinion, the majority errs by reweighing the evidence and substituting its judgment for that of PERS. I am of the opinion that the PERS finding was based on substantial evidence.

¶ 27. In Pub. Employees’ Ret Sys. v. Cobb, 839 So.2d 605, 609(¶12) (Miss.Ct. App.2003), a unanimous Court of Appeals held:

In administrative matters, the agency, and not the reviewing court, sits as finder of fact. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss. 1990). That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony. Walker Mfg. Co. v. Butler, 740 So.2d 315(¶ 46) (Miss.Ct.App.1998). A reviewing court is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal and the court exceeds its authority when it proceeds to re-evaluate the evidence and makes its own determination of the trustworthiness of some particular testimony. Smith v. Jackson Const. Co., 607 So.2d 1119, 1123-24 (Miss.1992).

¶ 28. In this case, the question before PERS was whether McClure’s claim met the statutory requirements for the receipt of disability benefits. PERS’s decision was to deny benefits. To support this decision, PERS looked at numerous medical tests and evaluations that McClure had undergone. The medical file contained many reports of lab results, including pathology reports, echocardiograms, cytology results, imaging reports and various other reports that require medical expertise to analyze and understand the diagnosis. Five different physicians reviewed the reports in McClure’s file. These physicians had the medical training to read and assess these reports. Thus, the five physicians had the “fact-finding duty [which] includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony.” Id.

¶ 29. McClure contends, and the majority agrees, that it is her treating physician who recommended disability retirement and that PERS did not put on contradictory medical testimony to refute her physician. The majority ignores the fact that the statutory creation of the PERS Medical Review Board was to allow medical expertise at the administrative agency to analyze the medical evidence presented in order to determine whether it supported the claimant’s claim for disability. The majority’s opinion ignores the expertise represented on this Board.

¶ 30. In Cobb, former Chief Judge Roger McMillin aptly concluded for this Court:

The requirement of “substantial evidence” seems satisfied, however, in such instance by an appellate determination that the agency’s conclusion that the claimant’s evidence was so lacking or so unpersuasive that she failed to meet her burden appears a reasoned and unbiased evaluation of the evidence in the record.
In that circumstance, in something of a paradox, the lack of evidence at the agency level becomes the substantial evidence on appellate review that suggests the necessity of affirming the agency’s determination. On that basis, we find that the record amply supports the Board’s findings that Cobb failed -to meet her burden of showing her eligibility for disability retirement.

Id. at 609-610(¶ 16). PERS does not have to put on contradictory evidence. Indeed, the medical evidence supported a conclusion that McClure was not disabled.

¶ 31. The evidence indicates that PERS properly considered the testimony and medical documentation. PERS specifically noted the following facts:

As of the date of this hearing, Ms. McClure continues her employment with Heidelberg Schools teaching three and four year old developmentally delayed children. She testified she loves her job but she is afraid that because of her medical problems, she is going to have a stroke. She testified that she is not as effective in the classroom as she used to be but that she has a very understanding principal.
She testified that she doesn’t ever feel well. She is tried and weak and it gets more and more difficult to control her blood sugar. She has better control of her blood pressure and blood sugar over the summer when she gets more rest. Ms. McClure testified about her knowledge of her diseases and her medications. This Committee was certainly impressed with her understanding of both and her compliance with her current treatment. We note she is on the following medications:
Humulin N insulin 36 unites every morning;
Humulin R insulin 22 unites every morning;
Lantus insulin 30 units every evening;
Glucovance 25 500 mg. Twice a day;
Tiazac 240 mg. Each day;
Lasiv 40 mg. Twice a day;
Avalide 300 mg + 25 each day;
Aldactone 1 twice a day;
Tenex 1 mg. Each day
Zaroxolyn 25 mg. Each day;
Celebrex 200 mg. Each day;
Ms. McClure’s primary physician is Dr. Charles Nause and Ms. McClure has produced records dating back to November of 1993. Early on, she was treated for routine infections and a thyroid cyst, but throughout, Ms. McClure’s blood pressure and blood sugar have not been regulated. In 1999, and early 2000, it appears from Dr. Nause’s records that Ms. McClure’s blood pressure was under better control but her blood sugar appears fairly consistently elevated (R. 26-32). Thereafter, it appears that muscle complaints developed and neither Ms. McClure’s blood pressure or blood sugars were adequately controlled (R. 11-25). Ms. McClure was subsequently diagnosed with adrenal hyperplasia.
While we do not have the records, Ms. McClure saw Dr. Goodman in Memphis, TN, as he is an expert in diabetes. Dr. Goodman developed Ms. McClure’s basis diabetic plan and referred her back to Dr. Nause for implementation.
Records introduced by Ms. McClure at the hearing include the most recent medical reports from Dr. Nause basically providing documentation of her current medical situation. Also enclosed is correspondence requested by Ms. McClure of Dr. Nause regarding his opinion of disability. Lastly, provided are the 22 dates of school absences this fall semester. One of those being a hospitalization to regulate her diabetic and blood pressure medication.

PERS then determined that:

Ms. McClure has the burden of persuading that she is disabled at least at the time of this hearing since she continues employment with Heidelberg Schools. This claim is difficult because of the medical issues involved and the fact that Ms. McClure continues to work. The Committee understands Ms. McClure’s claim that since her diabetes and hypertension are currently uncontrolled, she is requesting to be determined disabled. Obviously, from the medical records, mostly of Dr. Nause, a real problem exists with the management of Ms. McClure’s hypertension and diabetes. We recognize from Ms. McClure’s testimony that she has seen Dr. Goodman for regulation of her diabetes and we applaud her for this. But we have great concern about the total treatment that Ms. McClure is receiving. We understand that medications treating diabetes adversely affect blood pressure medicines and vice versa. While we have no complaints with Dr. Nause, we do believe that Ms. McClure would benefit from a total evaluation by a hypertension expert. Hypertension experts generally have a better overall treatment plan. We note that Ms. McClure is functioning at her job now, but it is our opinion that the situation should only improve with appropriate treatment. We do not believe the evidence suppoHs disability we believe with proper treatment, she will only improve the situation. Ms. McClure is intelligent and motivated and we believe that with a proper medication program her medical conditions are truly manageable. There will always be swings in her blood sugar of 70-4,00, but she is now able to work and with proper management she will continue to be able to work. We believe staying at home is not a proper management program. The current lack of medical management does not have to be a permanent situation.
In summary, Ms. McClure is bright, articulate, motivated and loves her job. She suffers from symptoms of uncontrolled hypertension and diabetes. Based on our review of the evidence and in light of the testimony, we believe that Ms. McClure’s medication program is not addressing the need to control her diabetes and hypertension. It is our opinion that a hypertension specialist would be able to evaluate Ms. McClure and place her on a proper program. We do not believe the evidence supports disability and we believe with proper treatment, she will only improve the situation.

(Emphasis added).

¶ 32. I am of the opinion that PERS, through its medical doctors, were in a far better position to evaluate McClure’s medical history and the evidence presented. Indeed, my reading of the decision leads me to conclude that PERS’s physicians determined that McClure simply needed treatment to resolve her problems. PERS’s decision was based on its review of the evidence, and its physicians’ medical knowledge and expertise. The circuit court and this Court are required to give deference to the PERS decision. We cannot substitute our judgment, and we must not reweigh the facts. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284(¶ 15) (Miss.2005). I respectfully dissent from the majority’s decision to affirm the circuit court. I would reverse the circuit court and reinstate PERS’s ruling.

      . At the time McClure filed for disability, she had accumulated 10.25 years of retirement eligibility.

      . The record indicates that from August 8, 2001 until December 7, 2001, McClure missed the following days of work: August— one half a day, September — three days, October — fourteen days, November — three days, and December — one and a half days, for a total of twenty-two days of absence.

      . In Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1287-88(¶ 23) (Miss.2005), the Mississippi Supreme Court held:
      The Medical Board which denied Howard’s claim was made up of three physicians. The Appeals Committee which agreed with that determination included two physicians. Sorting through voluminous and contradictory medical records, then determinating whether an individual is permanently disabled is better left to physicians, not judges. This is - the idea behind the creation and expansion of administrative agencies. "The existence within government of discrete areas of quasi-legislative, quasi-executive, quasi-judicial regulatory activity in need of expertise is the raison d'etre of the administrative agency.” McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 323 (Miss. 1992). "Because of their expertise and the faith we vest in it, we limit our scope of judicial review.” Id.


author: SMITH, Justice. HARWOOD, Justice

text:
    ADVANCE TANK AND CONSTRUCTION COMPANY, INC. v. GULF COAST ASPHALT COMPANY, L.L.C.
    1031875.
    Supreme Court of Alabama.
    Feb. 3, 2006.

      A.H. Gaede, Jr., Jonathan B. Head, and Leigh Anne Hamburg of Bradley Arant Rose & White, LLP, Birmingham, for appellant.
    Samuel H. Franklin of Lightfoot, Franklin & White, L.L.C., Birmingham; and J. Don Foster of Jackson, Foster & Graham, L.L.C., Mobile, for appellee.
   SMITH, Justice.

The defendant below, Advance Tank and Construction Company, Inc. (“Advance Tank”), appeals from the denial of its motion to compel arbitration of the claims of the plaintiff, Gulf Coast Asphalt Company, L.L.C. (“Gulf Coast”). We reverse and remand.

Facts and Procedural History

Gulf Coast operates a shipping terminal in Mobile. Advance Tank, which is located in Colorado, manufactures and installs steel tanks. On November 6, 2002, Gulf Coast entered into a contract with Advance Tank for the construction of certain tanks at the shipping terminal. Although the record and briefs are unclear as to the details of the construction project, a dispute apparently arose between Gulf Coast and Advance Tank regarding the project.

- On June 17, 2004, Gulf Coast sued Advance Tank, seeking damages on claims of breach of contract, negligence, and money had and received. On July 23, 2004, Advance Tank filed a claim in arbitration against Gulf Coast. On August 4, 2004, Gulf Coast filed a motion in the trial court seeking an order restraining Advance Tank from pursuing arbitration. On August 9, 2004, the trial court granted the motion and entered a temporary restraining order. That same day, Advance Tank filed in the trial court a motion to compel arbitration. Gulf Coast filed a response in opposition to the motion to compel.

On August 26, 2004, the trial court issued an order enjoining Advance Tank from pursuing any claim in arbitration and denying Advance Tank’s motion to compel arbitration. Advance Tank appeals. See Rule 4(d), Ala. R.App. P.

Standard of Review

“We review de novo the denial of a motion to compel arbitration. Springhill Nursing Homes, Inc. v. McCurdy, 898 So.2d 694, 696 (Ala.2004). The party seeking to compel arbitration has the burden of proving both that a contract calling for arbitration exists and that the contract evidences a transaction affecting interstate commerce. McCurdy, 898 So.2d at 696. Once this prima facie showing has been made, the burden then shifts to the party opposing arbitration to present substantial evidence indicating that the supposed arbitration agreement is either invalid or inapplicable to the dispute as to which arbitration is being sought. Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1081 (Ala.2004).”

Patriot Mfg., Inc. v. Jackson, 929 So.2d 997, 1000 (Ala.2005).

Discussion

A.

In support of its motion to compel arbitration, Advance Tank filed a copy of the construction contract at issue in this case, as well as an affidavit by Terry Hyatt, vice president of Advance Tank. The contract consists of 20 pages. Each page indicates its number of the 20, e.g., 15 of 20. Section 1 of the contract, entitled “Work and Contract Documents,” states, in part:

“It is agreed, effective the last date of execution hereof ... that:
“A. [Advance Tank] will ... in a professional and workmanlike manner construct and complete construction of Tanks at [Gulf Coast’s] terminal ... as provided for in the Bid Specifications for Construction of Tanks, Additional Requirements!,] and Contractors Proposal.
“B. [Advance Tank] will furnish and pay for all material, labor, tools, equipment, utilities, facilities, etc., necessary therefore [sic], and related items as described and identified herein and on the attached drawings!,] documents, and specifications; all of which are hereby specifically incorporated herein by reference as if set forth word for word; all of said Exhibits hereinafter collectively referred to as the ‘Work.’ All of the Work will be in accordance with all applicable laws, rules, and regulations, and consistent with the terms hereof; in accordance with the attached specifications incorporated herein by reference, as the same may be modified in writing from time to time; and, in accordance with the following additional attached documents which are incorporated by reference and made a part hereof as follows:
“Attachment A — Bid Specifications for Construction of Tanks at Mobile, Alabama
“Attachment B — Reserved[]
“Attachment C — Additional Requirements
“Attachment D — Contractors Proposal.”

“Attachment D,” also referred to as the “Contractors Proposal,” consists of page “17 of 20” through page “20 of 20” of the contract. It is dated September 12, 2002, and is a letter addressed to Summit Ter-minaling Services, L.L.C. Although this document appears to have been drafted before the contract was drafted, the title “Attachment D” appears at the top of the first page of the letter, and the page-numbering scheme of the entire contract appears at the bottom of its pages.

Attachment D discusses the specifications and the terms of a proposal or agreement regarding the construction of a 97-foot diameter asphalt tank. On page “18 of 20,” it states: “Terms and Conditions: The attached terms and conditions form a part of this proposal and shall apply.” On the next page, page “19 of 20,” it states: “The attached Terms and Conditions shall form a part or [sic] this proposal. However, we do not anticipate any difficulty in negotiating mutually agreeable contract terms.” Finally, the bottom of page “20 of 20” states: “Attachments: Terms and Conditions.”

Advance Tank also included with its motion to compel arbitration a document entitled “Advance Tank Construction Company Standard Terms and Conditions.” This document states that it is part of Advance Tank’s “Proposal.” Section 12 of the document contains an arbitration provision, which states, in pertinent part:

“DISPUTE: All disputes between the parties, which cannot be amicably settled, shall be settled by binding arbitration according to the American Arbitration Association Construction Industry Rules. The arbitration shall take place in Denver, Colorado.”

According to Hyatt’s affidavit, a copy of Advance Tank’s standard terms and conditions was transmitted with the September 12, 2002, proposal.

“Parties to a contract are bound by pertinent references therein to outside facts and documents.” Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 83, 36 (Ala.1998). “ ‘Other writings, or matters contained therein, which are referred to in a written contract^] may be regarded as incorporated by the reference as a part of the contract and[,] therefore, may properly be considered in the construction of the contract.’ 17A Am. Jur.2d Contracts § 400 (1991).” 718 So.2d at 36. “ ‘[A] contract may incorporate the terms of another document by reference.’ McDougle v. Silvernell, 738 So.2d 806, 808 (Ala.1999).” Cavalier Mfg., Inc. v. Clarke, 862 So.2d 634, 640 (AIa.2003). Attachment D, which was part of the contract, expressly incorporated by reference Advance Tank’s standard terms and conditions, which contained the arbitration provision. This arbitration provision was therefore part of the contract. Thus, Advance Tank produced substantial evidence that the contract in this case called for arbitration of “all disputes.”

B.

Gulf Coast disputes whether the parties actually assented to the arbitration provision. First, Gulf Coast contends that Attachment D was not actually part of the contract. Specifically, Gulf Coast argues that the dispute in this case involves Advance Tank’s failure to properly construct certain methanol tanks and that Attachment D was merely a proposal for the construction of an asphalt tank. Gulf Coast argues that it is “undisputed” that the “proposal” was not accepted by Gulf Coast, and that the contract ultimately entered into by the parties in November 2002 was “strikingly different” from the asphalt tank “offer,” represented by Attachment D.

Gulf Coast’s argument, however, is refuted by the plain language of the contract. Section 1 of the contract states that Advance Tank will “construct and complete construction of Tanks at [Gulf Coast’s] terminal ... as provided for in the ... Contractors Proposal.” (Some emphasis added.) The “Contractors Proposal” is Attachment D and contains detailed specifications for the construction of an asphalt tank. Moreover, part B of section 1, quoted above, explicitly “incorporated by reference and made a part” of the contract “Attachment D — Contractors Proposal.”

The contract also references the construction of the asphalt tank in other places. Attachment B, which includes pages “14 of 20” and “15 of 20,” is titled “Asphalt Tank Specifications” and details the construction of an asphalt tank “in addition to previously quoted methanol tanks.” Attachment C notes additional details regarding the construction of both an asphalt tank and methanol tanks. In fact, the contract itself contains no description of the methanol tanks that were to be constructed; instead, it appears those specifications are incorporated by reference by Attachment A, which simply refers to “Bid Specifications” of “tanks” provided in an “initial bid request dated July 8, 2002.” No less than 5 of the 20 pages of the contract detail the construction of an asphalt tank, while no pages are devoted to the specifications for the methanol tanks. We thus find it inexplicable to suggest that the contract in this case involves only the construction of methanol tanks, and not an asphalt tank.

Gulf Coast also argues that Attache ment D was included as part of the contract only in order to provide more specifications for the tanks that were to be constructed. Gulf Coast states in its brief to this Court:

“To the extent that the final contract incorporates the provisions of the documents attached as pages 14 of 20 through 20 of 20 of the contract, it does so for the express purpose of more specifically defining the ‘Work’ which the contractor is obligated to construct and complete, including the technical design specifications for the ‘Tanks.’ ”

Gulf Coast’s brief at 46.

The language of the contract does not indicate that Attachment D was included solely to- offer more detailed technical specifications. Section 1, part A, of the contract, quoted above, states that Advance Tank will “construct and complete construction of Tanks at [Gulf Coast’s] terminal ... as provided for in the ... Contractors Proposal [Attachment D].” Attachment D not only contains specifications for the construction of the asphalt tank, but also details, among other things, work-site conditions; the names of the Advance Tank employees responsible for supervising the project, including their qualifications; and policies relating to the drug testing of Advance Tank employees. Nothing in the contract indicates that only the specifications “provided for” in Attachment D were incorporated.

C.

Gulf Coast also argues that the arbitration provision in the terms-and-conditions document conflicts with section 33 of the contract, titled “Governing Law — Venue — Service of Process.” Section 33 states:

“This Contract shall be deemed to be made under and shall be governed by the laws of the State of Alabama in all respects, including without limitation, matters of construction, validity, performance and venue. [Advance Tank] hereby expressly agrees that the venue for any litigation hereunder or related hereto shall be in Mobile County, Alabama, and hereby consents to the jurisdiction of the courts located therein over its/their person in any action to enforce any provisions hereof, and agrees that service of process may be made wherever [Advance Tank] may-be found and that such service shall be valid and binding as if personal service had been made upon [Advance Tank] within Alabama.”

Gulf Coast further maintains that section 28 of the contract, titled “Conflicts in Documents,” requires that the contract take precedence over the terms and conditions. Section 28 states in pertinent part: “If there is any conflict between this and any other document forming a part of this contract, this document shall control.”

“Terms of a written instrument should be construed in pari materia and a construction adopted' that gives effect to all terms uséd. Inconsistent parts in a contract are to be reconciled, if susceptible of reconciliation.... ” Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995) (citation omitted). “The law is settled that this Court is bound to construe contracts so as to give meaning to all provisions whenever possible.” Board of Water & Sewer Comm’rs of City of Mobile v. Bill Harbert Constr. Co., 870 So,2d 699, 710 (Ala.2003).

Advance Tank, citing Personal Security & Safety Systems Inc. v. Motorola Inc., 297 F.3d 388 (5th Cir.2002), argues that a forum-selection clause generally does not conflict with an arbitration provision. In Personal Security, the court was called upon to- determine whether a forum-selection clause in a stock-purchase agreement conflicted with an arbitration agreement contained in a licensing agreement that was executed alongside the stock-purchase agreement. The forum-selection clause stated: “Governing law. This agreement shall be governed by and construed in accordance with the laws of the State of Texas. Any suit or proceeding brought hereunder shall be subject to the exclusive jurisdiction of the courts located in Texas.” 297 F.3d at 395 (some capitalization omitted). The plaintiff in that case, PSSI, argued that the forum-selection clause required that any dispute arising out of the stock-purchase agreement be litigated in Texas courts, thus expressly excluding arbitration. The court held:

“We do not find PSSI’s interpretation of the forum selection clause persuasive. Standing alone, one could plausibly read the forum selection clause to mean that Texas courts have the exclusive power to resolve all disputes arising under the Stock Purchase Agreement. But the forum selection clause does not stand alone. To the contrary, we must interpret the forum selection clause in the context of the entire contractual arrangement and we must give effect to all of the terms of that arrangement. See Richland Plantation Co. v. Justiss-Mears Oil Co., Inc., 671 F.2d 154, 156 (5th Cir.1982) (‘When several documents represent one agreement, all must be construed together in an attempt to discern the intent of the parties, reconciling apparently conflicting provisions and attempting to give effect to all of them, if possible.’). Given our conclusion that the arbitration provision in the Product Development Agreement applies to all claims related to the overall transaction, we. must, therefore interpret the forum selection provision in the Stock Purchase Agreement in a manner that is consistent with the arbitration provision.
“Reading the two provisions together, it becomes clear that the forum selection clause does not require the parties to litigate all claims in Texas courts, nor does it expressly forbid arbitration of claims arising under the Stock Purchase Agreement. Instead, we interpret the forum selection clause to mean that the parties must litigate in Texas courts only those disputes that are not subject to arbitration — for example, a suit to challenge the validity or application of the arbitration clause or an action to enforce an arbitration award. Rather than covering all ‘disputes’ or all ‘claims’ like the arbitration provision in the Product Development Agreement, the forum selection clause confers ‘exclusive jurisdiction’ on Texas courts only with respect to ‘any suit or proceeding.’ This limitation suggests that the parties intended the clause to apply only in the event of a non-arbitrable dispute that must be litigated in court.”

Personal Security, 297 F.3d at 395-96 (footnotes omitted). See also Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278, 285 (2d Cir.2005) (holding that a forum-selection provision was “complementary” to a prior agreement to arbitrate and its presence in the contract did not specifically preclude arbitration).

We agree with Advance Tank that the forum-selection clause in this case does not conflict with the arbitration provision. The forum-selection clause states that Advance Tank, a Colorado corporation, agrees that “venue” for any “litigation” shall be in Mobile County, and that it “consents” to the jurisdiction of courts there for “any action to enforce any provisions” of the contract. This clause does not express preference for the method of dispute resolution; rather, it appears to express a preference for venue and an apparent consent to the jurisdiction of the courts of Mobile County. In other words, while the clause expresses an agreement as to the “venue” of “litigation,” it does not expressly forbid arbitration as an alternative form of dispute resolution.

Keeping in mind that purportedly inconsistent parts of a contract should be reconciled, Sullivan, Long, & Hagerty, supra, and reading both the forum-selection clause and the arbitration clause together (and the contract as a whole), the two clauses can be read consistently to express a preference for the venue of litigation of any disputes that are to be resolved outside arbitration. Personal Security, supra; Bank Julius Baer & Co., supra. Thus, these clauses do not conflict.

D.

Gulf Coast also argues that it did not assent to the arbitration provision because the terms-and-conditions document was not attached to the contract when it was signed. Gulf Coast offered in opposition to the motion to compel arbitration the affidavit of Sanford Brass, the manager of Gulf Coast. Brass testified in the affidavit:

“The Construction Contract that I signed on behalf of [Gulf Coast] for construction of the methanol tanks did not have any attachments or any Terms and Conditions attached to it as part of any attachment at the time I executed it. Further, I never received any Terms and Conditions at any time with regard to any proposal, even though as General Manager it is required that I approve any terms and conditions which relate to this contract.”

(Emphasis omitted.) Advance Tank, on the other hand, argues that Brass’s affidavit indicates that he executed the contract without reading Attachment D, which constituted pages 17 through 20 of the contract. Brass also stated in his affidavit: “I only received Attachments B, C, and D (without any terms and conditions), after the signing of the Construction Contract. ...” Advance Tank argues that Gulf Coast’s failure to read the contract “cannot be used against Advance Tank.”

A party to a contract is responsible for reading the contract. See Ex parte Perry, 744 So.2d 859, 863 (Ala. 1999) (opinion of three Justices). “[W]hen a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract, including an arbitration provision, and will be bound thereby.” First Family Fin. Servs., Inc. v. Rogers, 736 So.2d 553, 558 (Ala.1999).

Attachment D was part of the contract signed by Gulf Coast. It specifically incorporated by reference Advance Tank’s “Terms and Conditions,” which contained an arbitration provision. Brass claims that he never saw or read the “Terms and Conditions,” yet he nevertheless executed the contract. Moreover, his own affidavit establishes that he had not seen Attachments B, C, and D when the contract was executed, even though the contract explicitly includes those documents as part of its terms. The “Terms and Conditions” were incorporated as part of the contract, and Gulf Coast was deemed to be on notice of all of the provisions of the contract. Thus, Gulf Coast is also bound by the arbitration provision.

E.

Finally, Gulf Coast notes that construction contracts such as the one at issue in this case often incorporate by reference numerous drawings, material lists, insurance certificates, and “a host” of rules and regulations. Gulf Coast suggests that such contracts create opportunities for parties to “slip” arbitration clauses into preliminary bid documents, where they would go unnoticed. Gulf Coast thus suggests:

“The obvious answer is that in the context of complex construction contracts negotiated specifically by the parties for a substantial project such as here, the burden rests with the party desiring arbitration ... to make certain that the party against whom the arbitration clause may be enforced is aware of the arbitration provision before the parties sign a contract, if that clause does not appear in the body of the document that the parties execute.”

Gulf Coast’s brief at 52-53.

Gulf Coast’s argument would essentially require a special disclosure for an arbitration provision. “Courts may not, however, invalidate arbitration agreements under state laws applicable only to arbitration provisions.... Congress [has] precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed ‘upon the same footing as other contracts.’ ” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). Additionally, this Court has generally recognized that there is no duty to expressly disclose the existence of an arbitration provision. See Anderson v. Ashby, 873 So.2d 168, 183 (Ala.2003); Johnnie’s Homes, Inc. v. Holt, 790 So.2d 956, 960 (Ala.2001). Thus, this argument is without merit.

Conclusion

Advance Tank has demonstrated that the contract in this case called for arbitration of “all disputes” between Advance Tank and Gulf Coast. Therefore, we hold that the trial court erred in denying the motion to compel arbitration, and the trial court’s order is reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

HARWOOD, J., concurs specially.

HARWOOD, Justice

(concurring specially).

I concur. The “Conflicts in Documents” section of the contract is not applicable where there are reasonably viable, mutually exclusive, fields of operation for two provisions. Here, the “Governing Law— Venue — Service of Process” section of the contract does not direct or mandate that any dispute must proceed to litigation. In fact, it purports only to bind Advance Tank, not equally Gulf Coast, and only to the extent that Advance Tank agrees (1) that jurisdiction may be exercised over it by the courts of Mobile County, Alabama, “in any action to enforce any provisions” of the contract; (2) that “venue for any litigation” under or relating to the contract shall be in Mobile County; and (3) that service of process may be effected on it wherever it may be found as if it had been personally served in Alabama.

As some of the perils of arbitration have become better known empirically and likewise the severely restricted grounds for judicial review of an arbitration award at the trial court and appellate court levels better appreciated, it can be expected that sometimes both parties to a contract containing an arbitration clause will elect to forgo invoking it and choose instead the better established and more systematized process of court action. In such a situation, a contract provision binding a party to certain jurisdiction, venue, and mode of service of process for the “action” or “litigation” that ensues will come into play. This possible application of such a provision, as well as the other opportunities for court intervention if a party invokes the arbitration provision, which the main opinion discusses, prevent a true and irreconcilable conflict between the provisions. Thus, there is no need to resort to the “Conflicts in Documents” provision of the contract to resolve the interaction of the forum-selection provision and the arbitration provision.

      . Although the body of the contract indicates Attachment B is "Reserved,” Attachment B consists of two pages titled “Asphalt Tank Specifications.”

      . According to the record, Summit Terminating Services, L.L.C., is a consultant to Gulf Coast.

      . It was not disputed before the trial court— and it is not disputed on appeal — that the contract at issue evidenced a transaction involving interstate commerce.

      . This bid specification does not appear in the record, and nothing in the record actually contains the specifications for the construction of the methanol tanks.

      . Attachments B and D contain specifications only for the construction of an asphalt tank. If the contract at issue in this case required only the construction of methanol tanks, as Gulf Coast argues, then it is unclear why the contract incorporates extensive specifications for the construction of an asphalt tank.

      . Additionally, Gulf Coast argues that Attachment D is simply a specification for the "Work” to be conducted. Part B of section 1 defines "Work” as “attached drawings[,] documents, and specifications.” It further states:
      “All of the Work will be in accordance with all applicable laws, rules, and regulations, and consistent with the terms hereof; in accordance with the attached spécifications incorporated herein by reference, as the same may be modified in writing from time to time; and, in accordance with the following additional attached documents which are incorporated by reference and made a part hereof as follows: [Attachments A, B, C, and D].”
      (Emphasis added.) “Work” is thus to be performed "in accordance with” both the “attached specifications” and Attachments A, B, C, and D. This implies that “attached specifications” and Attachment D are two different items. If Attachment D was merely included for its description of certain specifications, then it is unclear why it would be addressed as though it were different from thfe "attached specifications.” This language certainly does not demonstrate that only the portions of Attachment D that contain the tank-construction specifications — but no other provisions— are incorporated as part of the contract.

      . Other courts have generally held that when an arbitration clause appears to conflict with a forum-selection/choice-of-law clause in a contract with varying language, the contract should be construed in favor of arbitration. See generally the cases cited at Sims v. Clarendon Nat'l Ins. Co., 336 F.Supp.2d 1311, 1319 n. 3 (S.D.Fla.2004).


author: LYONS, Justice.

text:
    Andrew BAUGUS et al. v. CITY OF FLORENCE.
    1051593.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      Elizabeth G. Messer of Gonce, Young & Collum-Butler, Florence, for appellants.
    Michael C. Quillen and Alan M. Warfield of Walston, Wells & Birchall, LLP, Birmingham; and William T. Musgrove III, city atty., Florence, for appellee.
   LYONS, Justice.

Andrew Baugus and other landowners appeal from a summary judgment entered in favor of the City of Florence (“the City”) in the Lauderdale Circuit Court. We remand the case to the trial court for further proceedings because the judgment appealed from is not a final judgment.

I. Facts and Procedural Background

The City operated and maintained a sanitary landfill in Florence. The landfill abuts and/or includes portions of Baugus’s property, as well as the property of 12 other named plaintiffs in the case (collectively referred to as “the residents”). The Alabama Department of Public Health initially issued a permit for the operation of the landfill, but the City later operated the landfill pursuant to a permit issued by the Alabama Department of Environmental Management. The City claims that the landfill was closed in 1988 and that it has not disposed of garbage there since that time. The residents contend that the City was still dumping waste at the landfill as late as 2005.

The City continues to maintain the landfill in what it calls a “post-closure care monitoring period.” The City concedes that when depressions in the soil appear, it dumps “clean fill,” or unregulated inorganic solid waste, in those depressions. The City also has been monitoring the perimeter of the landfill site for the presence of methane gas since 1991. This monitoring entails the installation of monitoring wells, which are two-inch diameter PVC pipe buried six feet into the ground, in the property at the perimeter of the landfill. The residents claim that the methane gas generated by the landfill migrates onto their properties and creates the possibility of explosion when present in high quantities. The residents have produced evidence indicating that methane gas has been detected on their properties as late as 2005, sometimes at explosive levels.

The residents sued the City, stating a nuisance claim and an “unlawful-taking” claim. The City filed a motion to dismiss or for a more definite statement, and the residents filed a first amended complaint, restating the “unlawful-taking” claim as an inverse-condemnation claim. The City filed an answer to the first amended complaint, setting forth its affirmative defenses. The City then filed a motion for a summary judgment on the grounds that the claims .listed in the first amended complaint were barred by the statute of limitations and, in the alternative, even if the claims were not barred by the statute of limitations, that the residents failed to present sufficient evidence to support those claims. After the City filed its summary-judgment motion, the residents filed a second amended complaint, which added claims alleging trespass, continuing trespass, strict liability, and negligence. The City filed a motion to strike the second amended complaint on the ground that it was filed three days after the date the court had set as the deadline for disposi-tive motions. The City never filed an answer to the second amended complaint, nor did it amend its summary-judgment motion to include the four additional claims asserted in the second amended complaint. The court never ruled on the City’s motion to strike, but, after a hearing at which an untranscribed oral argument took place, the court entered a summary judgment in favor of the City.

II. Nonfinal Judgment

An appeal will not lie from a nonfinal judgment. Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala. 1978). “A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.” Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App. 1999). The absence of a final judgment is a jurisdictional defect that cannot be waived by the parties. McGowin Inv. Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973). When an action involves multiple claims or parties, Rule 54(b), Ala. R. Civ. P., gives the trial court the discretion to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.” If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.

Neither the City nor the residents moved for certification under Rule 54(b). However, “if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment. ...” Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000) (summarizing the holding in Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985)). In Sho-Me Motor Lodges, the trial court’s order clearly indicated that the court intended to enter an order pursuant to Rule 54(b) because the order, clearly quoting Rule 54(b), stated: “ ‘The Court further finds there is no just reason for delay in the entry of said final judgment.’ ” 466 So.2d at 87. And in Schneider National Carriers, Inc., we recognized the existence of a Rule 54(b) certification based on the fact that the trial court specifically cited Rule 54(b).

In the instant case, however, the trial court’s summary-judgment order states that “[i]t appears from the record that there are no disputed issues of material fact and that the defendant is entitled to a judgment as a matter of law.” The order neither mentions Rule 54(b) nor does it quote Rule 54(b). Accordingly, we cannot say that the trial court clearly intended to certify its order as final under Rule 54(b), nor can we overlook the absence of a final judgment, a matter affecting this Court’s jurisdiction.

Further, although the trial court’s summary-judgment order in favor of the City, on its face, appeared to dismiss all claims in favor of the City, the City’s motion for a summary judgment moved only for a summary judgment on the nuisance claim and the inverse-condemnation claim. Consequently, only those claims were properly before the trial court on the summary-judgment motion. See Robinson v. JMIC Life Ins. Co., 697 So.2d 461, 461 (Ala.1997) (“At the outset, we note that the trial court’s judgments adjudicated all of Robinson’s claims. This was error, because the defendants had sought summary judgments only as to the fraudulent suppression claim.”). See also Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769, 772 (Ala.1994); Henson v. Mobile Infirmary Ass’n, 646 So.2d 559, 562 (Ala.1994); Sexton v. St. Clair Fed. Sav. Bank, 653 So.2d 959, 962 (Ala.1995); and Bibbs v. MedCenter Inns of Alabama, Inc., 669 So.2d 143, 144 (Ala.1995).

The City never completely abandoned its motion to strike before the trial court or before this Court. When the residents discussed the additional claims from the second amended complaint in their response to the City’s motion for a summary judgment, the City stated in a footnote to its brief in reply that it

“has filed a separate motion to strike the plaintiffs’ Second Amended Complaint, which the plaintiffs filed ... two weeks after the City filed its summary judgment motion. In the event that the Court allow the plaintiffs’ amendment, the City requests an opportunity to present evidence and argument in support of summary judgment as the additional claims in the plaintiffs’ belated pleadings. This memorandum addresses only the claims made the subject of the City’s Motion for Summary Judgment.”

As indicated by the footnote, the City intended to preserve its motion to strike as to the negligence, trespass, continuing trespass, and strict-liability claims. We treat this footnote as sufficient indication that the City had not waived at this juncture its motion to strike the second amended complaint.

After the hearing on the motion for a summary judgment, the trial court entered an order inviting response to its concern as to whether evidence of the City’s violation of certain regulatory or statutory obligations satisfied the sufficiency-of-the-evidence requirement in light of this Court’s decisions in Byrd v. City of Citronelle, 937 So.2d 515 (Ala.2006), and Burge v. Jefferson County, 409 So.2d 800 (Ala.1982). In its supplemental brief submitted after the hearing, the City discussed those two cases but addressed for the first time the effect of those cases upon the negligence claim, a claim asserted only in the second amended complaint. In their response to the City’s supplemental brief, the residents also addressed the negligence claim in light of Byrd and Burge, and concluded with a cursory discussion of the remaining claims in the second amended complaint, namely, trespass, continuing trespass, and strict liability, noting the presence of factual issues.

Arguably, the City waived its motion to strike the second amended complaint as to the residents’ negligence claim by injecting a discussion of negligence into its post-hearing supplemental brief. However, we need not resolve that issue because it is clear that the City did not inject the other three claims asserted in the second amended complaint — trespass, continuing trespass, and strict liability — in any submission to the trial court before its ruling on the summary-judgment motion. We do not find any basis for the City’s waiver of its motion to strike as to those claims arising from its failure to object to the residents’ cursory reference to trespass, continuing trespass, and strict liability in their posthearing brief because such discussion is entirely consistent with an acknowledgment by the residents as to the necessity for further proceedings in the event the trial court granted the City’s motion as to the first amended complaint and subsequently denied the motion to strike the second amended complaint.

Because the City has not waived its motion to strike as to at least three of the claims asserted in the second amended complaint and the trial court has not ruled on such motion, those claims remain pending. A partial summary judgment is not a final, appealable judgment. See Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 748 n. 11 (Ala.2000) (citing Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala.1987)).

III. Remand

Neither party has challenged the summary-judgment order as nonfinal. However, inaction of the parties cannot cure a jurisdictional defect. Cf. McGowin Inv. Co. v. Johnstone, supra. We have the option of dismissing the appeal or remanding the case to the trial court for the opportunity to cure the defect, as set forth below:

“When it appears from the record that the appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification. The judgment will be taken as final as of the date the 54(b) certification is entered....
“... [I]f this Court remands the case to the trial court for the opportunity of making such a certification, the trial court will have the limited jurisdiction to enter a 54(b) certification if, in its discretion, it decides the entry of such a certification is appropriate.”

Foster v. Greer & Sons, Inc., 446 So.2d 605, 609-10 (Ala.1984) (overruled on other grounds, Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987)).

We remand this case for the trial court either (a) to grant the City’s motion to strike the second amended complaint and thereafter enter a final judgment or (b) to certify the summary-judgment order heretofore entered as to the first amended complaint as a final judgment under Rule 54(b). A supplemental record reflecting the trial court’s action should be prepared and forwarded to this Court. The judgment will be considered final as of the date any new order is entered. If no such supplemental record is forwarded to this Court within 14 days of the date of release of this opinion, this appeal will be dismissed. ■

REMANDED WITH INSTRUCTIONS.

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

      . The City notes in its brief to this Court that its motion to strike the second amended complaint remains outstanding, with no ruling from the trial court.

       Note from the reporter of decisions: On February 16, 2007, the Supreme Court dismissed the appeal, without opinion.