author: SEE, Justice.

text:
    PROGRESSIVE SPECIALTY INSURANCE COMPANY v. Judy O’Neill GREEN.
    1040765.
    Supreme Court of Alabama.
    Jan. 13, 2006.
    Alex L. Holtsford, Jr., of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellant.
    Sam E. Loftin of Loftin, Loftin & Hall, Phenix City, for appellee.
   SEE, Justice.

Progressive Specialty Insurance Company appeals by permission, pursuant to Rule 5, Ala. R.App. P., from a denial of its motion for a summary judgment. We answer the controlling question of law presented to us by this appeal, reverse the trial court’s judgment, and render a judgment in favor of Progressive.

Facts and Procedural History

Dana D. Green was killed in an automobile accident on January 25, 2002. The motorist responsible for the accident was never identified. Dana was the only named insured on an automobile insurance policy issued by Progressive. On May 24, 1999, Dana had signed a form entitled “Rejection of Uninsured/Underinsured Motorist Coverage.” The form states in pertinent part:

“I have been offered Uninsured/Un-derinsured Motorist Coverage up to an amount equal to the limits of the liability coverage and I reject the option to purchase any Uninsured/Underinsured Motorist Coverage. I understand that Uninsured/Underinsured Motorist Coverage would have protected me, my resident relatives, and occupants of a covered vehicle if any of us sustain bodily injury, including any resulting death, in an accident in which the owner or operator of a motor vehicle who is legally liable does not have insurance (an uninsured motorist) or does not have enough insurance (an underinsured motorist).”

(Boldface type in original.)

Following Dana’s death, Judy O’Neill Green, Dana’s wife, sued Progressive, in her individual capacity, alleging that Progressive owes her uninsured-motorist benefits because Dana’s death was caused by an uninsured motorist as that term is defined under his Progressive automobile insurance policy. She contends that, although Dana had expressly rejected uninsured-motorist coverage, she is nonetheless entitled to uninsured-motorist benefits under Dana’s policy because, she says, she is a “named insured” and she did not reject uninsured-motorist coverage.

Progressive moved the trial court for a summary judgment in its favor. The trial court denied Progressive’s motion for a summary judgment. Progressive petitioned for permission under Rule 5, Ala. R.App. P., to appeal from the interlocutory order denying its summary-judgment motion and asked the trial court to certify that the interlocutory order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an interlocutory appeal would materially advance the ultimate termination of the litigation and avoid protracted and expensive litigation. See Rule 5(a), Ala. R.App. P. This Court granted Progressive’s petition for permission to appeal the trial court’s order denying its summary-judgment motion.

Analysis

The trial judge certified the following controlling question of law for review:

“Whether ... a spouse of a deceased person, who brings a wrongful death lawsuit for the death of her spouse, can seek uninsured or underinsured motorist benefits for the death even though the deceased, who was the sole named insured, himself expressly rejected uninsured motorist benefits in his insurance application.”

We answer the question in the negative. A spouse of a deceased person, who was not specifically named as an insured on the deceased person’s insurance policy, cannot receive uninsured-motorist benefits if the deceased, who was the sole named insured, expressly rejected uninsured-motorist benefits.

There appears to be confusion in the record as to whether Judy brought the claim against Progressive individually or as Dana’s personal representative under the Wrongful Death Act, Ala.Code 1975, § 6-5-410. The trial judge’s question states that this action is a wrongful-death action. However, Judy states clearly in her brief that “[i]t is crucial to note that the claim against Progressive is not brought under the Wrongful Death Act. Rather, the claim against Progressive is for uninsured motorist benefits.” Judy Green’s brief, p. 7. In addition, her complaint does not allege a claim under the Wrongful Death Act. Therefore, we will analyze the question presented on the presumption that Judy brought a claim for uninsured-motorist benefits on her own behalf and not in any representative capacity.

It is undisputed that Dana was killed in an automobile accident caused by an unidentified motorist. An automobile driven by an unidentified motorist falls within the definition of an uninsured motor vehicle in Progressive’s policy.

“ ‘Uninsured motor vehicle’ means a land motor vehicle or a trailer of any type ...
“d. that is a hit-and-run vehicle whose operator or owner cannot be identified and which causes an accident resulting in bodily injury to an insured person.”

(Boldface type in original.)

If the insured pays a premium for uninsured-motorist coverage, then the insured is entitled to benefits under the policy for any harm caused by an uninsured motor vehicle. It is undisputed that Dana expressly rejected in writing uninsured-motorist benefits under his automobile insurance policy with Progressive. Therefore, Dana had never paid premiums for uninsured-motorist coverage, and Dana was not entitled to uninsured-motorist benefits. Judy, however, claims that, as Dana’s spouse, she is a “named insured” under the terms of Dana’s Progressive policy. Her argument is that because she is a “named insured” and she did not reject the uninsured-motorist coverage, under Alabama’s uninsured-motorist statute, § 32-7-23, Ala.Code 1975, she is entitled to uninsured-motorist benefits.

We cannot conclude that Judy is a named insured under Dana’s policy with Progressive. Judy acknowledges that the only “named insured” listed on the declarations page of the policy is Dana. She contends, however, that she is also a “named insured” within the meaning of the policy because of the following language found in the definitions section of the policy:

“16. ‘You’ and ‘Your’ mean a person shown as a named insured on the Declaration Page, and that person’s spouse if residing in the same household.”

(Boldface type in original.) She alleges that “[tjhroughout the policy, ‘you’ and ‘your’ are used to give Judy Green the exact same rights under the policy that her husband, Dana Green had.” Judy Green’s brief, p. 4. Judy contends that because she has the same rights as Dana had, she is a “named insured” under the terms of the policy and it is “immaterial that her name was not included on the Declarations Page.” Judy Green’s brief, p. 4. The policy language Judy quotes does not expand the scope of the terra “named insured” to include the named insured’s spouse. The fact that the terms “you” and “your” are defined to include both the named insured — the person named on the declarations page of the policy — and the named insured’s spouse actually makes clear that the named insured’s spouse is not a named insured. This Court has held that “insurance contracts are to be enforced as they are written, as long as there is no ambiguity in the provisions involved.” Watkins v. United States Fid. & Guar. Co., 656 So.2d 337, 339 (Ala.1994) (citing St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375, 1377 (Ala.1992)). Dana’s Progressive policy unambiguously distinguishes the “named insured” from the “named insured’s spouse.” Although “you” is defined to refer to both Judy and Dana, “named insured” does not refer to both. Therefore, we conclude that Judy was not a “named insured” under Dana’s automobile insurance policy with Progressive.

Because we have concluded that Judy is not a “named insured” under Dana’s policy, her reliance on the Court of Civil Appeals’ decision in Nationwide Insurance Co. v. Nicholas, 868 So.2d 457 (Ala.Civ. App.2003), is misplaced. She cites Nicholas to support her argument that because she is a “named insured” under Dana’s automobile insurance policy with Progressive and she did not explicitly reject uninsured-motorist coverage, she is entitled to uninsured-motorist benefits under § 32-7-23, Ala.Code 1975. Nicholas, however, is distinguishable from this case. In Nicholas, the parents of Kirk Nicholas, Jr., a 19-year-old driver who was killed in an automobile accident caused by an underin-sured driver, sought underinsured-motorist benefits, which were included in the uninsured-motorist benefits provision in their automobile insurance policy. The Nicholases’ policy listed both parents, Kirk Nicholas, Sr., and Lynette Nicholas, as named insureds. Kirk Nicholas, Sr., signed a statement rejecting uninsured-motorist coverage, but Lynette Nicholas did not. The issue presented to the Court of Civil Appeals was: “[W]hen a policy lists more than one named insured, must each named insured expressly reject uninsured-motorist coverage, or is the rejection by one of the named insureds effective as a rejection of such coverage on behalf of all the named insureds?” 868 So.2d at 459-60. The Court of Civil Appeals concluded that rejection of uninsured-motorist coverage by one of the named insureds is not effective as a rejection on behalf of all named insureds. The ultimate resolution of the question whether one named insured can reject uninsured-motorist coverage for all the named insureds is simply inapplicable to this case because Dana was the only named insured on the policy.

Conclusion

We answer the question posed on this permissive appeal in the negative: A spouse of a deceased person, who was not a named insured on the deceased person’s insurance policy, is not entitled to uninsured-motorist benefits if the deceased, who was the sole named insured, expressly rejected uninsured-motorist benefits. Because our answer to the question presented effectively terminates this litigation, we reverse the trial court’s judgment and render a judgment in favor of Progressive.

REVERSED AND JUDGMENT RENDERED.

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

      . Under the Wrongful Death Act, Judy fulfills the statutory definition of a personal representative who could bring a claim on behalf of Dana’s estate. "The words ‘personal representative' are broader in some respects, but when used in [the Wrongful Death Act] they can only mean the executor or administrator of the injured testator or intestate.” Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979) (citing Hatos v. Partin, 278 Ala. 65, 175 So.2d 759 (1965)).

      . Section 32-7-23(a), Ala.Code 1975, states:
      "No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected' the coverage in connection with the policy previously issued to him by the same insurer.”

      . Judy also alleges that "in reported cases where 'named insured' is defined by the policy, it is customarily defined to be the person whose name is on the declarations page and that person’s spouse.” Judy Green's brief, p. 5 (emphasis in original). In support of her assertion, Judy merely cites cases without providing pinpoint citations to the pertinent pages. The automobile insurance policies at issue in those cases explicitly defined the term "named insured” to include both the named insured listed on the policy and his or her spouse, if they resided in the same household. See State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So.2d 346, 350 (Ala.1984), Alabama Farm Bureau Mut. Auto. Ins. v. Pigott, 393 So.2d 1379, 1381 (Ala.1981), Mathis v. Employers’ Fire Ins. Co., 399 So.2d 273, 274 (Ala.1981), Alabama Farm Bureau Mut. Cas. Ins. Co. v. Government Employment Ins. Co., 286 Ala. 414, 418, 240 So.2d 664, 667 (1970), Blow v. State Farm Mut. Auto. Ins. Co., 284 Ala. 687, 690, 228 So.2d 4, 6-7 (1969), Hogg v. State Farm Mut. Auto. Ins. Co., 276 Ala. 366, 367, 162 So.2d 462, 462-63 (1964), and Johns v. State Farm Mut. Auto. Ins. Co., 41 Ala.App. 615, 616, 146 So.2d 323, 324 (1962). Thus, those cases are readily distinguishable from this one. Even if most automobile insurance policies do define named insured to include a spouse residing in the same household, this case is controlled not by the language of those policies, but by the language of Dana's policy with Progressive, and his policy does not define "named insured” to include the named insured’s spouse. Therefore, those cases do not support Judy's contention that industry custom and practice requires a finding that she is a "named insured” under Dana’s Progressive policy.


source: Caselaw Access Project

author: NABERS, Chief Justice.

license: Public Domain

text:
    Patsy RENTZ v. Sarah GRANT.
    1040664.
    Supreme Court of Alabama.
    Jan. 13, 2006.

      Patrick 0. Miller of Dick & Miller, P.C., Huntsville, for appellant.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellee.
   NABERS, Chief Justice.

Patsy Rentz appeals from an order of the Madison Circuit Court partially granting Sarah Grant’s motion for a summary judgment in an action commenced by Grant seeking Rentz’s eviction from property owned by Grant and alleging breach of contract. We affirm.

I. Facts

The events underlying this dispute date back to 1996. In August of that year, Rentz was approached by Jeff Smith, Grant’s uncle, about renting a house owned by Grant in Huntsville (“the house”). Smith, who knew Rentz through prior business dealings, held a mortgage on the then vacant house, and he brokered a deal for Rentz to rent the house at a monthly rate of $700.

Before moving into the house, Rentz performed significant renovations to the house at her own expense. She had the carpet removed, the floors refinished, new fixtures and flooring installed in the bathroom, and the interior walls repainted. Rentz moved into the house sometime in September 1996. From the start, Rentz made her rental payments directly to Smith, and Smith credited the payments against the debt owed him by Grant.

Rentz asserts that she was willing to undertake the cost of renovating the house because her arrangement with Grant was more than a rental agreement. Rentz contends that she entered into an oral agreement with Grant, whereby she would be allowed to purchase the house from Grant at a later date for $110,000, with part of the purchase price to come in the form of a credit for the expenses Rentz had incurred renovating the house. Rentz asserts that the cost of the renovations to the house was between $8,000 and $9,000.

Grant’s version of the oral agreement is different. She insists that in the fall of 1996 she was not planning to sell the house and would not have set a purchase price at that time, and she maintains that she was not aware that Rentz was spending a large amount of money to renovate the house before moving in. Moreover, Grant asserts that the parties never finalized the specific terms of the agreement.

It is undisputed that there was no written lease detailing the rental agreement between Rentz and Grant nor was there a written contract memorializing the terms of any oral agreement for the sale of the house.

In April or May 2003, more than 6 years after Rentz began living in the house, Grant informed Rentz that she needed to sell the house in order to pay off her debt to Smith. Rentz contends that, at Grant’s request, she mailed Grant an offer reflecting the original oral agreement reached by the parties in 1996. She alleges, however, that Grant informed her that she believed that the house was worth more than what Rentz alleges was the originally agreed upon price and that she intended to have an appraisal performed. Grant became upset after she received the results of the appraisal because the appraisal report showed that the house had fallen into significant disrepair. Despite the problems with the house, however, the appraisal report indicated that its appraised value had increased to $140,000.

Rentz asserts that Grant refused to respond to her written offer, and that when she made her rental payment for October 2003, she informed Grant that she would not make another payment until Grant had repaired the house or responded to her purchase offer.

On October 15, 2003, Grant, through her attorney, sent Rentz a letter stating that she was terminating Rentz’s tenancy as of November 30, 2003, as a result of Rentz’s failure to maintain the house. The letter requested that Rentz move out. In the alternative, the letter contained an offer to sell the house to Rentz for $140,000, the then current appraised value. Rentz declined the offer to sell and refused to leave. Rentz did continue to make her monthly rental payments; however, she sent those payments to her attorney to hold in escrow until the dispute between her and Grant regarding the house was resolved.

II. Procedural History

In January 2004, Grant filed a notice of eviction in the district court of Madison County. On March 15, 2004, the district court granted Rentz’s motion to remove the action to the Madison Circuit Court under § 35-9-83, Ala.Code 1975. On July 2, 2004, Grant amended her eviction complaint to include claims alleging “Breach of Contract, Quantum Meruit, and/or Unjust Enrichment,” by which Grant sought damages for Rentz’s refusal to pay Grant rent on the house after October 2003, and a claim alleging wanton and willful conduct by Rentz, in which Grant asked for punitive damages.

As a defense, Rentz asserted that the two parties had an oral agreement concerning the purchase of the house. Rentz filed a counterclaim in which she alleged that Grant had breached the oral agreement by insisting on an increase in the purchase price. Rentz also alleged wantonness and unjust enrichment and sought specific performance of the oral agreement and damages.

In her answer to Rentz’s counterclaim, Grant denied Rentz’s allegations and asserted a variety of affirmative defenses, including the Statute of Frauds, § 8-9-2, Ala.Code 1975.

On September 7, 2004, Grant moved for a summary judgment on all claims. On November 12, 2004, the circuit court entered a summary judgment in favor of Grant as to her eviction action and breach-of-contract claim and a partial summary judgment on Rentz’s counterclaim. The circuit court ordered Rentz evicted from the house and ordered Rentz to pay Grant $9,100 in back rent. The circuit court denied the summary-judgment motion as to Rentz’s claim of unjust enrichment.

On December 1, 2004, the circuit court certified the partial summary judgment as a final judgment under Rule 54(b), Ala. R. Civ. P., and Rentz appealed.

III. Standard of Review

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party demonstrates that he or she is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. This Court reviews a summary judgment de novo, with the understanding that we must review the record in the light most favorable to the nonmoving party and resolve all reasonable doubts in favor of the nonmovant. American Gen. Life & Acc. Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). The moving party has the burden of making a prima facie showing that he or she is entitled to a summary judgment. 886 So.2d at 811. If the movant satisfies this burden of production, the nonmovant then bears the burden of producing substantial evidence creating a genuine issue of material fact. 886 So.2d at 811. “ ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Hess v. Market Inv. Co., 917 So.2d 140, 142 (Ala.2005) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

Moreover, when a movant makes a prima facie showing that he or she is entitled to a summary judgment by raising the affirmative defense of the Statute of Frauds, the burden then shifts to the non-movant to come forward with substantial evidence that the Statute of Frauds does not apply, “ ‘[e]ven though [the nonmoving party] may produce [evidence of] a genuine issue of material fact [on matters such as the terms or existence of a contract].’ ” Casey v. Travelers Ins. Co., 585 So.2d 1361, 1362-63 (Ala.1991) (quoting Durham v. Harbin, 530 So.2d 208, 210 (Ala.1988)). If the nonmovant does not meet that burden, summary judgment is appropriate.

IV. Analysis

The central issue presented in this case is whether Rentz and Grant have an enforceable contract for the sale of the house. Rentz asserts that she has presented substantial evidence indicating that Grant is bound by contract to sell Rentz the house; thus, she argues, the trial court erred in entering a summary judgment for Grant on Rentz’s counterclaim alleging breach of contract and seeking specific performance. Moreover, Rentz relies on this allegedly enforceable contract as her only defense to Grant’s action for eviction and Grant’s claim for back rent.

It is undisputed, however, that Rentz and Grant did not enter into a written contract detailing this oral agreement. Grant argues, therefore, that even if the parties entered into an oral agreement for the sale of the house, that oral agreement is void under Alabama’s Statute of Frauds, § 8-9-2, Ala.Code 1975. Because we conclude that Grant’s Statute of Frauds defense is dispositive, we need not consider the parties’ other arguments.

The Statute of Frauds provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....”

With the Statute of Frauds, the legislature identified “defined categories of oral promises that are especially subject to fabrication and especially unworthy of reliance or enforcement.” Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003). Oral promises for the sale of “lands, tenements or heredita-ments, or of any interest therein,” such as the one here, are inherently suspect, and the Statute of Frauds prohibits the enforcement of such a promise even though both parties acknowledge the existence of the oral agreement. Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).

There is, however, one exception — the “partial performance” exception — that will withdraw oral agreements for the sale of land from applicability of the Statute of Frauds. Rentz relies on this exception in an attempt to save her oral agreement with Grant.

To satisfy the partial-performance exception, the putative purchaser must demonstrate that he or she has paid all or a portion of the purchase price and that he or she was put in possession of the land by the seller. Holman v. Childersburg Bancorporation, Inc., 852 So.2d 691, 697 (Ala.2002). Here, Rentz asserts that she paid part of the purchase price of the house in the form of renovations to the house, which she performed at her own expense before she established her residency, and that she was put in possession of the house by Grant. She contends, therefore, that her oral agreement with Grant satisfies the partial-performance exception to the Statute of Frauds. We conclude, however, that it does not.

The fact that Rentz did not pay the portion of the purchase price she alleges she paid for the house in cash is immaterial. Gibson v. Bryant, 267 Ala. 97, 99, 100 So.2d 32, 34 (1958). “The purchase price may be anything of money value and payment of part of the purchase price need not have been contemporaneous.” 267 Ala. at 99, 100 So.2d at 34. Moreover, “part performance or payment may be inferred from the construction of improvements, but only if performed under the contract of sale.” Merchants Nat’l Bank of Mobile v. Steiner, 404 So.2d 14, 19 (Ala.1981).

Even if Rentz could demonstrate partial payment, however, we conclude that the partial-performance exception is inapplicable here because Rentz has not satisfied the possession prong of the exception to the Statute of Frauds. The

“acts of possession” necessary to satisfy the partial-performance exception “ ‘must be clear and definite, and referable exclusively to the contract.’ ” Smith v. Smith, 466 So.2d 922, 924 (1985) (quoting Hagood v. Spinks, 219 Ala. 503, 504, 122 So. 815, 816 (1929)) (emphasis added). “ ‘ “If the possession ... could be accounted for just as well by some other right or title actually existing in the vendee’s favor, or by some relation between him and the vendor other than the alleged oral contract, it is not such a possession as the doctrine requires.” ’ ” Holman, 852 So.2d at 698 (quoting Smith, 466 So.2d at 925, quoting in turn Jones v. Jones, 219 Ala. 62, 64, 121 So. 78, 78 (1929)). In other words, “1 “[t]he exception applies only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” Holman, 852 So.2d at 698 (quoting Quinlivan v. Quinlivan, 269 Ala. 642, 645, 114 So.2d 838, 840 (1959), quoting other cases) (emphasis added in Holman).

Rentz relies on the partial-performance exception to save her oral agreement to purchase the house from Grant, yet as demonstrated by her own deposition testimony, her possession of the house can be explained fully by her status as lessee. It has long been established under Alabama law that “ ‘possession taken as lessee, and continued without visible change, does not tend to prove that such occupant was put in possession of the land as purchaser by the seller, so as to meet [the partial-performance exception] of the [S]tatute of [F]rauds.’ ” Formby v. Williams, 203 Ala. 14, 17, 81 So. 682, 685 (1919) (quoting Linn v. McLean, 85 Ala. 250, 253, 4 So. 777, 778 (1887)); see also Merchants Nat’l Bank of Mobile v. Steiner, 404 So.2d at 19 (“ ‘A possession taken as a lessee, and continued without visible change, does not tend to prove that such occupant was put in possession by the owner, and is not an act tending to give notice of a change of holding.’ ” (quoting Reynolds v. Bryant, 281 Ala. 372, 375-76, 202 So.2d 734, 737 (1967))).

During her deposition, when asked to explain the terms of her oral agreement with Grant, Rentz stated that “[t]he agreement was ... [i]f I would rent the house for a period of time, then at a later date I could purchase the house for a[ ] hundred and ten thousand dollars ... [and] as a down payment or as part of the purchase price, which I was to get back, I spent the money to renovate the house .... ” (emphasis added). Later during her deposition when asked once again to characterize the oral agreement, Rentz stated: “I had to lease [the house] for at least three or four years before I could purchase that house.” (Emphasis added.) Moreover, during the proceeding, Rentz stated:

“The agreement was that I paid rent and lived in that house. I paid a down payment on it. I fixed it. I moved into it. I paid rent until I could buy it. That was the agreement. I had to pay for it. I had to rent it for at least three years, three or four years, I had to do that which I did.”

(Emphasis added.)

Viewed in a light most favorable to Rentz, the record clearly shows that Rentz took possession of the house as a lessee and had, at best, an option to the purchase the house. Rentz, therefore, has not demonstrated that her possession of the house relates exclusively to an agreement to purchase the house and not to her agreement to lease the house; thus, Rentz cannot rely on her possession as lessee to save her oral agreement to purchase the house from the operation of the Statute of Frauds. As a result, the oral agreement to purchase the house is void under the Statute of Frauds, and Rentz cannot assert it to defeat Grant’s motion for a summary judgment.

V. Conclusion

We conclude that Grant is entitled to the partial summary judgment entered below because any oral agreement between the parties for the sale of the house is void under the Statute of Frauds. As a result, Rentz cannot assert it as a defense to Grant’s eviction action and breach-of-contract claim, nor can she rely on it to support her counterclaims of breach of contract, specific performance, and wantonness. The circuit court’s summary judgment for Grant on those claims, therefore, is affirmed.

AFFIRMED.

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

      . Smith’s version of the arrangement is not in the record. Moreover, Smith has died and thus is not available to testify.

      . Although in her first affidavit filed in this case Rentz states that she entered into this agreement with Smith, in her deposition Rentz asserts that Grant was involved in the negotiations and that Grant set the purchase price. Rentz alleges that Grant agreed to sell the house for $110,000, which was $1,000 less than the appraised value of the house in 1996, because if she sold the house directly to Rentz Grant would not have to pay a real-estate commission.

      . According to Grant, the appraisal showed that the roof needed to be replaced, that "trees [were] growing in the gutter," and that "the ceilings [were] falling down because the trees [had not] been trimmed.”

      . Rentz states that once Smith became terminally ill, she made her monthly rent payments, including the payment for October 2003, to Nancy Gaines, Smith’s daughter.

      . It is undisputed that Grant owns the house, that Rentz has rented the house at a monthly rate of $700 since the fall of 1996, and that there was no written lease agreement between the parties. Under Alabama law, therefore, a month-to-month tenancy is presumed. See § 35-9-4, Ala.Code 1975 ("In the absence of any agreement respecting the length of time for the rent, the hiring is presumed to be monthly.”). Moreover, the record clearly indicates that Grant provided sufficient notice to terminate Rentz's tenancy, see § 35-9-5, Ala.Code 1975 (requiring "10 days' notice in writing” to terminate a "tenancy by the month”), that Rentz refused to vacate the premises, and that Rentz stopped making her monthly rental payments to Smith’s daughter after her payment for October 2003.

      . Rentz’s case hinges on the validity of the oral agreement with Grant for the sale of the house. As noted above, Rentz asserts the oral agreement as a defense to Grant’s eviction action and her claim for back rent; moreover, Rentz’s allegations in her counterclaim of breach of contract and seeking specific performance are based on the oral agreement. As for Rentz’s wantonness claim, nothing in the record before us indicates that Grant acted "with a reckless or conscious disregard of the rights or safety of” Rentz in attempting to have her evicted, so as to entitle Rentz to punitive damages under § 6-11 — 20(b)(3), Ala. Code 1975, other than Rentz’s contention that Grant was without the authority to do so because of the oral agreement. Because we conclude that the oral agreement is void under the Statute of Frauds, Rentz cannot prevail on these claims.


author: HARWOOD, Justice.

text:
    W. Bruce SMITH v. MARK DODGE, INC., and DaimlerChrysler Corporation.
    1040975.
    Supreme Court of Alabama.
    Jan. 20, 2006.

      L. Daniel Mims and Theresa N. Williamson of L. Daniel Mims, P.C., Mobile, for appellant.
    Kevin L. Boucher of Masterson & New-ell, L.L.C., Mobile, for appellee Mark Dodge, Inc.
    James F. Walsh and Carrie R. Griffin of Adams & Reese/Lange Simpson, LLP, Birmingham, for appellee DaimlerChrysler Corporation.
   HARWOOD, Justice.

W. Bruce Smith appeals from an order of the Mobile Circuit Court granting motions to compel arbitration filed by Mark Dodge, Inc., and DaimlerChrysler Corporation. We affirm.

Facts and Procedural History

On July 21, 2003, Smith purchased from Mark Dodge a used 2001 Dodge Ram truck, which had been manufactured by DaimlerChrysler. The vehicle was accompanied by a warranty issued by Daimler-Chrysler. Smith also received a service contract, declaring itself to be “between [Smith] and the selling Dealer [Mark Dodge]” but to be administered by DaimlerChrysler. The service contract provided that it would cover certain “qualifying repairs” to the vehicle. Smith and Mark Dodge jointly signed an arbitration agreement, which provided, in pertinent part:

“[Smith] and [Mark Dodge] agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease or financing arrangements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease or financing shall be settled by binding arbitration.... Without limiting the generality of the foregoing, it is the intention of [Smith] and [Mark Dodge] to resolve by binding arbitration all disputes concerning the vehicle, its sale, lease or financing, and its condition, including disputes concerning the terms and conditions of the sale, lease or financing, the condition of the vehicle, any damage to the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale, lease, or financing of the vehicle, or negotiations for the sale, lease, or financing of the vehicle, or any terms, conditions, representations, or omissions made in connection with the financing, credit life insurance, disability insurance, vehicle extended warranty or service contract or other products or services acquired as an incident to the sale, lease or financing of the vehicle.
“.... [Smith] and [Mark Dodge] further agree that any question regarding whether a particular controversy is subject to arbitration shall be decided by the Arbitrator.”

On November 24, 2003, Smith purchased diesel fuel for his truck from a third party. The fuel, contaminated with water, immediately damaged the engine of the truck. Smith had the truck transported to Mark Dodge for repairs that same day. Although the necessary repairs were not covered under either the warranty or the service contract, Mark Dodge performed those repairs in return for payment from Smith’s insurance company.

In May 2004, while Smith was driving the truck, the engine again malfunctioned. Smith took the truck to Mark Dodge for repairs. Mark Dodge expressed its willingness to perform the necessary repairs but explained that the repairs were not covered by either the service contract or the warranty and that the cost for the repairs thus would have to be borne by either Smith or his insurance company. The record does not reflect whether these later repairs were performed.

Smith filed this action in the Mobile Circuit Court, alleging that Mark Dodge had been negligent and wanton in repairing the truck in November 2003 and that it and DaimlerChrysler had breached the warranty in May 2004 when Mark Dodge refused to perform the repairs under the warranty. He also alleged that Daimler-Chrysler had breached the service contract in 2004. Mark Dodge and DaimlerChrys-ler each moved to compel arbitration, and the trial court granted each motion. Smith appeals.

Standard of Review

This Court reviews de novo the grant of a motion to compel arbitration. Springhill Nursing Homes, Inc. v. McCurdy, 898 So.2d 694, 696 (Ala.2004). A ruling on a motion to compel arbitration is to be reviewed in a manner analogous to that of a ruling on a motion for a summary judgment. The party seeking to compel arbitration must first prove both that a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce. 898 So.2d at 696. Once this showing has been made, the burden then shifts to the nonmovant to show that the contract is either invalid or inapplicable to the circumstances presented. 898 So.2d at 696-97.

Analysis

I. Whether Smith’s Claims Against Mark Dodge are Arbitrable

It appears undisputed that a valid contract calling for arbitration exists and that that contract evidences a transaction involving interstate commerce. Smith argues only that his dispute with Mark Dodge concerning its repairs to the truck in 2003 and its refusal in 2004 to repair the truck under the warranty falls outside the scope of the arbitration agreement because, he argues, that agreement “pertained to any and all incidences surrounding the purchase of Smith’s vehicle from Mark Dodge and did not contemplate any future transactions involving any of the parties.” (Smith’s brief, at 11.) Given the limited nature of this argument, we consider Smith to have conceded that he bears the burden to prove that the arbitration agreement is inapplicable to his claims.

A threshold issue is which forum should decide the question of the scope of the arbitration agreement. In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the United States Supreme Court stated:

“Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., [514 U.S. 52, 57 (1995)]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985), so the question “who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.”

514 U.S. at 943, 115 S.Ct. 1920. However, the Court warned, “[cjourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” 514 U.S. at 944, 115 S.Ct. 1920 (quoting AT & T Techs, v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). This Court has similarly required that trial courts order arbitration of the issue of arbitrability when the plain language of the agreement unquestionably shows that the parties agreed to arbitrate the issue of arbitrability. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133-34 (Ala.2003); and Ex parte Perry, 744 So.2d 859, 866-67 (Ala.1999).

The concluding sentence of the arbitration agreement, which is sometimes referred to as a “First Options clause” and which is quoted above, unquestionably demonstrates that the parties agreed to arbitrate the arbitrability of any controversy. Consequently, any question whether Smith’s claims against Mark Dodge are arbitrable is itself for an arbitrator to determine. Polaris, 879 So.2d at 1133.

Despite this Court’s usually faithful adherence to the First Options rule, we note that Smith cites Capitol Chevrolet & Imports, Inc. v. Payne, 876 So.2d 1106 (Ala.2003), in which we affirmed a trial court’s order denying a motion to compel arbitration because there was no “ ‘legal and logical nexus between the source of the dispute and the arbitration provision at issue.’ ” 876 So.2d at 1109 (quoting Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 275-76 (Ala. 1999)). The plaintiff in Payne had purchased an automobile from the defendant dealer but sued as the result of a second, although related, transaction between them. In conjunction with the purchase of the automobile, the plaintiff signed an arbitration agreement. The plaintiff alleged that approximately one month after she purchased the automobile, she was told by one of the dealer’s salesmen that the dealer had a buyer for the automobile, and she therefore relinquished possession of it to the dealer for resale. The salesman’s representation was false, according to the plaintiff, and he converted the automobile to his own use. The plaintiff sued him and the dealer, alleging fraud and conversion. The defendants argued that the plaintiffs claims fell within the scope of the arbitration agreement relating to “the sale ... or financing of the vehicle,” whereas the plaintiff argued that her claims were outside the scope of the arbitration clause. We agreed with the plaintiff.

After reviewing the briefs submitted in Payne, however, we note that that case is distinguishable from the present one on the basis of its procedural posture. Although the arbitration agreement in Payne contained a First Options clause, the appealing defendants in that case failed to argue that its presence in the agreement required submitting to arbitration the question regarding the scope of the agreement. In Payne, by not addressing the First Options clause issue, this Court was simply following the well-settled rule that we do not reverse a trial court’s judgment on a ground not raised on appeal. Robino v. Kilgore, 838 So.2d 366, 370 (Ala.2002). Conversely, however, this Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process, Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001), even where the ground upon which we affirm was not argued before the trial court or this Court. Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000). The applicability and enforceability of a First Options clause was brought to the Court’s attention by DaimlerChrysler, which extensively argues that we should enforce the First Options clause; Smith has chosen not to respond to this contention by way of a reply brief.

The arbitration agreement contains a First Options clause, which has been brought to this Court’s attention by one of the parties, and we reaffirm prior holdings that an arbitration agreement containing a First Options clause, clearly and unmistakably manifesting the intention of the parties to arbitrate the question whether a particular dispute or controversy is arbi-trable, requires that such a dispute or controversy be submitted to arbitration. We therefore conclude that the trial court was correct in granting Mark Dodge’s motion to compel arbitration.

II. Whether Smith’s Claims against DaimlerChrysler are Arbitrable

Smith next argues that his claims against DaimlerChrysler cannot be arbitrated because, he says, the parties did not contemplate that DaimlerChrysler, a non-signatory to the arbitration agreement, would be entitled to enforce the agreement. DaimlerChrysler argues that Smith is equitably estopped from refusing to arbitrate those claims.

A party typically manifests its assent to arbitrate a dispute by signing the contract containing the arbitration provision. Ex parte Stamey, 776 So.2d 85, 88-89 (Ala.2000). One of the key exceptions to this rule is the theory of equitable es-toppel, under which a nonsignatory can enforce an arbitration provision when the claims against the nonsignatory are “ ‘ “intimately founded in and intertwined with” ’ ” the underlying contract obligations. Stamey, 776 So.2d at 89 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)).

This Court has crafted one exception to that exception: unless the arbitration provision contains sufficiently broad language that indicates that the nonsigna-tory was contemplated as a party, we have repeatedly held that the nonsignatory lacks “standing” to enforce the arbitration agreement. Med Ctr. Cars, Inc. v. Smith, 727 So.2d 9, 19 (Ala.1998); Ex parte Isbell, 708 So.2d 571, 581 (Ala.1997); Ex parte Jones, 686 So.2d 1166, 1168 (Ala.1996); and Ex parte Jones, 628 So.2d 316, 317 (Ala.1993). Where “the language of the arbitration provisions limited arbitration to the signing parties,” this Court has not allowed the claims against the nonsignato-ries to be arbitrated. Stamey, 776 So.2d at 89.

If an arbitration agreement is written in broad language so that it applies to “[a]ll disputes, claims or controversies arising from or relating to this Contract or the relationships which result from this Contract, Ex parte Napier, 723 So.2d 49, 51 (Ala.1998) (emphasis added), or even in slightly narrower language so that it applies to “ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING FROM OR RELATING TO THIS CONTRACT OR THE PARTIES THERETO,” Stamey, 776 So.2d at 91 (capitalization in original; emphasis added), this Court will proceed to determine whether arbitration may be compelled under the doctrine of equitable estoppel.

Conversely, if the language of the arbitration provision is party specific and the description of the parties does not include the nonsignatory, this Court’s inquiry is at an end, and we will not permit arbitration of claims against the nonsigna-tory. See Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 131 (Ala.2002) (affirming the trial court’s order denying a nonsignatory’s motion to compel arbitration where the arbitration agreement was between “you [a signatory plaintiff] and us [a signatory defendant] or our employees, agents, successors or assigns”)(bracketed language added); Ex parte Lovejoy, 790 So.2d 933, 938 (Ala.2000) (issuing a writ of mandamus directing a trial court to enter an order denying a nonsignatory’s motion to compel arbitration where the arbitration provision was limited to “all disputes or controversies between you [Lovejoy] and us [Allen Motor Company and its assignees]") (bracketed language and emphasis in original); First Family Fin. Servs. v. Rogers, 736 So.2d 553, 560 (Ala.1999) (reversing a trial court’s order granting a nonsignatory’s motion to compel arbitration where “you [the plaintiffs] and we [First Family]" agreed to arbitrate and the arbitration provision elsewhere stated that it applied to “all claims and disputes between you [the plaintiffs] and us [First Family],” and furthermore stated that it applied to “any claim or dispute ... between you [the plaintiff] and any of our [First Family’s] employees or agents, any of our affiliate corporations, and any of their employees or agents ”) (bracketed language and emphasis in original); and Med Center Cars, 727 So.2d at 19 (affirming a trial court’s order denying nonsigna-tories’ motions to compel arbitration where the arbitration provisions were limited to disputes and controversies “BETWEEN BUYER AND SELLER”) (capitalization in original).

The arbitration agreement signed by Smith and Mark Dodge provides, in pertinent part:

“[Smith] and [Mark Dodge] agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease or financing arrangements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle ... shall be settled by binding arbitration ....
“This Agreement is binding upon, and inures to the benefit of [Smith] and [Mark Dodge] and the officers, employees, agents and affiliated entities of each of them. ...
“[SMITH] AND [MARK DODGE] UNDERSTAND THAT THEY ARE AGREEING TO RESOLVE THE DIS-FUTES BETWEEN THEM DESCRIBED ABOVE BY BINDING ARBITRATION, RATHER THAN BY LITIGATION IN ANY COURT.”

(Boldface type and capitalization in original; all other emphasis added.)

Much of the text of the arbitration agreement seems to apply only to Smith and Mark Dodge, reciting as it does twice that Smith and Mark Dodge shall settle by arbitration the claims, demands, disputes, and controversies “between them.” The agreement further explains, however, that it is “binding upon” not only Smith and Mark Dodge, but also other described parties. DaimlerChrysler notes that one category of additional parties is “affiliated entities” of either party. DaimlerChrysler argues that it is one of Mark Dodge’s “affiliated entities.” That term is undefined in the arbitration agreement. (In Rogers, supra, the term “our affiliate corporations” was defined in the arbitration agreement as “our parent corporations, subsidiary corporations, and sister corporations.” 736 So.2d at 556. It was undisputed that the nonsignatory insurance companies seeking to compel arbitration did not qualify as “affiliate corporations” under that definition.)

The adjective “affiliated” is defined as “closely associated with another typically in a dependent or subordinate position.” Merriam-Webster’s Collegiate Dictionary 21 (11th ed.2003). The verb “affiliate” is defined as “to attach as a member or branch: bring or receive into close connection.” Webster’s Third New International Dictionary 35 (Merriam-Webster, Inc.1981). A fair reading of these dictionary definitions indicates that to be affiliated with one another, Mark Dodge and DaimlerChrysler must be somehow closely connected. The record reflects that the two are intimately associated. Their association was such that in issuing the service contract, Daimler-Chrysler could presume to commit that the contract was “between [Smith] and the selling Dealer.” Mark Dodge was an automobile dealership selling Dodge vehicles, one of DaimlerChrysler’s line of vehicles, and was an “Authorized DaimlerChrysler Service Contract Dealer.” Smith purchased the vehicle from Mark Dodge and, according to Smith’s contentions on appeal, Mark Dodge and DaimlerChrysler jointly warranted the vehicle. Because Smith has not supplied this Court with a reply brief or otherwise challenged below or here DaimlerChrysler’s contention that it is due recognition as an entity affiliated with Mark Dodge, we take DaimlerChrysler’s assertion to be uncontradicted; consequently, we cannot conclude that the trial court erred in implicitly finding that Daim-lerChrysler had standing to seek to enforce the arbitration agreement against Smith. We therefore proceed to determine whether DaimlerChrysler may enforce the arbitration agreement against Smith.

DaimlerChrysler seeks to compel arbitration as to Smith’s allegation of breach of contract and breach of warranty. Smith alleges that by refusing to offer coverage under the service contract for the second round of necessary repairs, DaimlerChrysler breached its service contract and the warranty. DaimlerChrysler may enforce the arbitration agreement against Smith only if Smith’s claims against Daim-lerChrysler are “intimately founded in and intertwined with” the claims made against Mark Dodge. Stamey, 776 So.2d at 89. All of Smith’s claims against Daimler-Chrysler arise out of and relate to Mark Dodge’s November 2003 repairs, the subsequent malfunctioning of Smith’s vehicle, and Mark Dodge and DaimlerChrysler’s apparent refusal to perform the repairs in May 2004 under either the warranty or the service contract. DaimlerChrysler specifically argues that the claims are intertwined, and Smith did not attempt in his only brief to this Court to counter Daim-lerChrysler’s intertwining argument. Having thus failed even to attempt to rebut the movant’s showings, Smith has failed to meet his burden. See Patriot Mfg., Inc. v. Jackson, 929 So.2d 997, 1006 (Ala.2005). Therefore, we cannot conclude that the trial court erred in granting Da-imlerChrysler’s motion to compel arbitration. We affirm the trial court’s order compelling arbitration.

Conclusion

The order of the trial court compelling arbitration is affirmed.

AFFIRMED.

NABERS, C.J., and STUART and BOLIN, JJ., concur.

SEE, J., concurs in the result.

      . Although the breach-of-warranty count in Smith’s complaint seeks a judgment against only DaimlerChrysler, all parties’ briefs to this Court proceed on the premise that Smith also alleged a breach of warranty against Mark Dodge.


author: CRAWLEY, Presiding Judge.

text:
    KERNS TRUCKING, INC. v. Kathy WHITESIDE.
    2040212.
    Court of Civil Appeals of Alabama.
    Nov. 23, 2005.

      Anna-Katherine Bowman of Huie, Fer-nambucq & Stewart, LLP, Birmingham, for appellant.
    Kenneth E. Riley of Farris, Riley & Pitt, L.L.P., Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

This is a workers’ compensation case. This appeal concerns whether Kathy Whiteside (“the worker”) was an employee of Kerns Trucking, Inc. (“the company”), at the time she was injured. Specifically, the issue is whether the company is excluded by definition from being the worker’s employer under Ala.Code 1975, § 25-5-1(4).

The record indicates that at the time of her injury on May 2, 2001, the worker was operating a dump truck owned by Angie Grimes. Grimes, doing business as AG Enterprises (“AG”), had leased the truck to the company pursuant to a contract. The trial court found that the lease agreement specified that AG was to assume the responsibility for hiring; setting wages; collecting and paying federal, state, or local employee taxes; controlling hours and working conditions; handling the grievances; and supervising, training, disciplining, and firing of all drivers.

The record also indicates that Grimes, the owner of AG, became an employee and a manager of the company 11 days after the worker was hired. Additionally, the application the worker completed on February 15, 2001, to apply for her job was the company’s form, on which the company was identified as the employer. Also, the company provided a manual to the worker that specified the company’s policies. The worker signed a document stating that she had received a copy of the manual and that she agreed to comply with its policies and procedures. The company required drivers to attend safety meetings, which were in fact held on several occasions. Grimes, then a company employee, would inform the drivers regarding when the meetings were to occur. The worker was also told that she could be discharged by the company if she did not meet all of the company’s requirements. The truck driven by the worker had the company’s emblems on the sides, and the worker’s personnel file was maintained by the company, not by AG. When Grimes processed the worker’s injury claim, Grimes identified the worker as an employee of the company. However, from the time she was hired until her accident, the worker was paid by check from AG. The trial court found that the evidence indicated that the company was the special employer of the worker and that the worker could therefore collect workers’ compensation benefits from the company.

The standard of review in a workers’ compensation case was stated by our supreme court in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996):

“[W]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

680 So.2d at 268-69 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “[i]n reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala.Code 1975, § 25—5—81(e)(1); see also King Power Equip., Inc. v. Robinson, 111 So.2d 723, 724-25 (Ala.Civ.App.2000). On appeal, this case presents a question of law, and the trial court’s judgment is to be reviewed without affording it a presumption of correctness.

In Alaplex Transportation, Inc. v. Rossen, 836 So.2d 901 (Ala.Civ.App.2002), this court addressed, in a case of first impression, the proper application of Ala.Code 1975, § 25-5-1(4), to truck drivers operating under an owner-operator or leased-operator agreement with common carriers. Specifically, the statute provides, in relevant part, that an employer is:

“Every person who employs another to perform a service for hire and pays wages directly to the person.... Notwithstanding the provisions of this chapter, in no event shall a common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity be deemed the ‘employer’ of a leased-operator or owner-operator of a motor vehicle or vehicles under contract to the common carrier.”

Ala.Code 1975, § 25-5-1(4)(emphasis added).

In Alaplex, the owner of a fleet of trucks, R.P. Gray, leased those trucks to the defendant company, Alaplex Transportation, Inc. Gray also hired Robert Rossen to drive those trucks. Rossen was injured in an accident while he was driving one of Gray’s trucks leased to Alaplex.

In Alaplex, the trial court held that Ros-sen was an employee of Alaplex based upon evidence tending to show (1) that Rossen had been paid based upon the loads provided by Alaplex; (2) that Ala-plex’s dispatchers had instructed Rossen to pick up and deliver shipments in the same manner that those dispatchers had instructed Alaplex’s own employees; (3) that Rossen was expected to contact Ala-plex should he encounter problems on the road or should he need an advance for expenses; (4) that Rossen was required to comply with procedures imposed by Ala-plex, its customers, and the United States Department of Transportation; (5) that Alaplex had held meetings with Rossen and other drivers; (6) that Alaplex had issued “certificates of appreciation” to Ros-sen in 1991 and 1996; (7) and that under federal precedents and regulations, Rossen would be classified as a “statutory” employee of Alaplex. Alaplex, 836 So.2d at 904.

After an analysis of the legislative evolution of § 25-5-1(4), and similar legislation in other states, this court unanimously reversed the trial court’s judgment, noting that, “where the Legislature manifests an intent to exclude common carriers entering into lease contracts with owner-operators from the class of employers subject to liability under a workers’ compensation law, that intent may not be defeated by an owner-operator’s mere delegation of driving duties to another driver.... ” Alaplex, 836 So.2d at 907.

Additionally, this court held that “the Legislature has, in this limited factual context, unequivocally foreclosed consideration of other factors by stating in § 25-5-1(4) that in no event shall a common carrier be deemed the ‘employer’ of an owner-operator or a leased operator.” Id.

The facts of the case at hand are substantially similar to those of Alaplex. In both cases, the owner of the vehicle leased his or her vehicle to a common carrier operating pursuant to a certificate of public convenience and necessity. In both cases the owner of the vehicle hired a person to drive the vehicle for the common carrier pursuant to the lease agreement. In both cases the driver of the leased vehicle was injured on the job while operating the vehicle.

There is an additional fact that at first blush makes the situations in the two cases seem different but, upon closer inspection, is revealed to be inconsequential to the resolution of this case. In the present case, as the worker noted, the owner of the vehicle, Grimes, became an employee of the company by the time of the worker’s accident. However, Grimes’s employment status is hot relevant to the application of § 25-5-1(4), since the company’s use of Grimes’s truck was still pursuant to the lease agreement.

Based upon the foregoing facts and authorities, we conclude that the trial court’s legal conclusion that the company was the worker’s “employer” for purposes of determining responsibility for providing workers’ compensation benefits was erroneous. We reverse the trial court’s judgment and remand the cause for the trial court to enter a judgment in favor of the company on the worker’s claims against it.

REVERSED AND REMANDED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.


author: LYONS, Justice.

text:
    Ex parte Kathy WHITESIDE. (In re Kerns Trucking, Inc. v. Kathy Whiteside).
    1050339.
    Supreme Court of Alabama.
    Jan. 13, 2006.
    Kenneth E. Riley of Farris, Riley & Pitt, L.L.P., Birmingham, for petitioner.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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


author: PITTMAN, Judge.

text:
    PINKERTON SECURITY & INVESTIGATIONS SERVICES, INC. v. Troy CHAMBLEE and Tony Jackson.
    2040704 and 2040705.
    Court of Civil Appeals of Alabama.
    Nov. 23, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1050331.

      Gregg L. Smith and David R. Mellon of Sirote & Permutt, P.C., Birmingham, for appellant.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellees.
   PITTMAN, Judge.

These consolidated appeals arise from civil actions brought by Troy Chamblee and Tony Jackson against Pinkerton Security & Investigations Services, Inc. (“Pinkerton”). Much of the pertinent procedural history was summarized by the Alabama Supreme Court in its opinion issued in earlier mandamus proceedings (Ex parte Chamblee, 899 So.2d 244 (Ala.2004)):

“Chamblee and Jackson separately sued Pinkerton.... The cases were consolidated for trial before Tennant M. Smallwood, Jr., circuit judge of Jefferson County. On July 14, 2003, Judge Smallwood entered monetary judgments in favor of each plaintiff against Pinkerton, based on a jury verdict. On July 28, 2003, Pinkerton filed its 'Motion for Judgment as a Matter of Law,’ pursuant to Rule 50, Ala. R. Civ. P.; the motion contained an alternative request for a new trial. Chamblee and Jackson filed a written opposition, and Judge Small-wood conducted a hearing on the motion on September 11, 2003. At the conclusion of the hearing, Judge Smallwood advised both counsel, ‘I’ll hold it for two weeks if y’all want to talk about it. If y’all want to talk about it, I’ll be glad to. Afterwards, I’ll call one of you and ask you for — if you want to .submit a proposed ruling. It would be in y’all[’]s best interest to settle the case.’ Pinkerton’s counsel asserts in his brief to this Court, and Judge Smallwood confirmed by entering orders purporting to amend his July 14, 2003, judgments (the procedural propriety of which petitioners have challenged, as hereinafter discussed), that Judge Smallwood contacted counsel for Pinkerton on September 24, 2003, to advise counsel that he was granting Pinkerton’s motion for a judgment as a matter of law and to request that counsel prepare a proposed order reciting the grounds Judge Smallwood explained to counsel. On September 25 Pinkerton’s counsel delivered a proposed order to Judge Smallwood’s office.
“The 90th day following the filing on July 28 of Pinkerton’s motion for a judgment as a matter of law was October 26, 2003. On November 10, 2003, Judge Smallwood dated, signed, and entered an 11-page ‘Memorandum Opinion and Order’ for the consolidated cases, setting aside the judgments he had entered in favor of Chamblee and Jackson and entering a judgment as a matter of law in favor of Pinkerton. Judge Smallwood’s signature on the order is preceded by the statement, ‘DONE AND ORDER [sic] on this the 10th day of Nov., 2003.’ A separate entry was typed on the case action summary sheet for each case, also dated November 10, confirming that ‘Memorandum Opinion and Order (Judgment as a Matter of Law) [was] entered this date by separate paper.... ’
“On December 11, 2003, counsel for Chamblee and Jackson wrote to Judge Smallwood to express counsel’s opinion that the November 10, 2003, order was a nullity by virtue of the fact that Pinkerton’s motion for a judgment as a matter of law had been denied automatically on October 26, 2003, pursuant to Rule 59.1[, Ala. R. Civ. P.,] when the 90-day period for the pendency of a postjudgment motion had expired, and to request that Judge Smallwood enter an order setting aside the November 10 order. Receiving no response from Judge Smallwood, counsel for Chamblee and Jackson filed their petition for a writ of mandamus, asking this Court to direct Judge Small-wood to rescind his November 10, 2003, order.
“On January 7, 2004, Pinkerton filed in the consolidated cases its ‘Motion to Amend the Record,’ asking Judge Smallwood, under the authority of Rule 60(a), Ala. R. Civ. P., to amend the record to reflect that Judge Smallwood had contacted Pinkerton’s counsel on September 24, 2003, and had informed him that Pinkerton had prevailed on its motion for a judgment as a matter of law and had informed Pinkerton’s counsel ‘of the reasons for the ruling and directed counsel to draft a proposed opinion including the Court’s findings,’ and that on September 25 Pinkerton’s counsel had ‘submitted the proposed opinion and order to the Court for the Court to review.’ Pinkerton’s counsel asserted that ‘[t]he factual findings and legal conclusions of the Opinion and Order [entered on November 10, 2003,] were identical to the draft opinion and order submitted to the Court by Defendant’s counsel.’ In its motion to amend, Pinkerton requested that Judge Small-wood ‘make those entries into the appropriate records to correct [sic] reflect the true facts in this matter, specifically, that the Motion for Judgment as a Matter of Law was ruled upon prior to the 90 day period expiring.’ Pinkerton asserted that Rule 60(a) could properly be used ‘to make the judgment or record speak the truth’ and argued that ‘the truth is that the Court ruled on the dispositive motion in a timely fashion and only failed to make a notation of the ruling in the case action summary sheets.’ Chamblee and Jackson filed a written objection to Pinkerton’s motion, and Judge Smallwood conducted a hearing on the motion on January 16, 2004. Later that same day he entered an order reciting, in pertinent part:
“ ‘On September 24, 2003, the Court informed counsel for Defendant that the Court was granting Defendant’s Motion for Judgment as a Matter of Law which had been filed on July 28, 2003. The Court specifically instructed counsel for Defendant to draft a proposed Opinion and Order stating the grounds which the Court found for the granting of said motion. The Court received the proposed Opinion and Order on September 25, 2003. Due to an oversight, the Court failed to make entries on the case action summary sheets of each matter identifying the action taken by the Court. This clerical error is due to be corrected.
“ ‘The record of the matter in Troy Chamblee v. Pinkerton Security and Investigations Services, Inc., et al, CV-2000-2888 will now include on each case action summary sheet the following entries:
“ ‘9/24/2003 The Defendant’s Motion For Judgment as a Matter of Law is due to be granted. Counsel for Defendant was contacted and told to draft a proposed Opinion and Order stating the grounds for the granting of the Motion as determined by the Court.
“ ‘9/25/2003 Proposed Memorandum Opinion and Order received from Defendant’s Counsel.
“ ‘This correction of the record reflects the true facts of this case.
“‘DONE AND ORDERED on this the 16th day of January, 2004.’ ”

899 So.2d at 245-47 (footnote omitted). In Ex parte Chamblee, the Supreme Court issued writs of mandamus “declaring] the order of November 10, 2003, setting aside the judgments in favor of Chamblee and Jackson and entering a judgment as a matter of law in favor of Pinkerton, to be a nullity and therefore void” and directed the trial court to set aside both that order and its added docketing entries. 899 So.2d at 249.

On December 7, 2004, after the Supreme Court had issued its writs of mandamus, Pinkerton filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the July 14, 2003, judgments. The two-page motion filed by Pinkerton averred not only that relief should be granted based upon “mistake, inadvertence, fraud, and/or excusable neglect,” but also that the underlying judgments were void and that relief should be granted “due to other reasons”; however, the brief filed in support of the motion made clear that Pinkerton’s motion was actually based upon subsection (1) of Rule 60(b), which permits relief based upon “mistake, inadvertence, surprise, or excusable neglect.” Chamblee and Jackson filed a response in opposition to Pinkerton’s motion, and the trial court held a hearing on the motion. The trial court denied Pinkerton’s motion on January 4, 2005, asserting that that court lacked jurisdiction to consider the motion.

However, rather than appealing from the order denying that motion, Pinkerton filed on January 14, 2005, another Rule 60(b) motion seeking the same relief, this time citing subsection (6), a catchall provision that permits relief from a judgment for “any other reason justifying relief.” Chamblee and Jackson again filed responses in opposition. On February 9, 2005, the trial court denied Pinkerton’s second motion as well, again concluding that it lacked jurisdiction to consider it. On March 18, 2005, within 42 days after the denial of its second Rule 60(b) motion but more than 42 days after the denial of its first Rule 60(b) motion, Pinkerton filed notices of appeal in both cases indicating that it sought review of the trial court’s order of February 9, 2005. Those appeals were transferred to this court by the Supreme Court pursuant to § 12-2-7(6), Ala.Code 1975, and were consolidated.

Although this court initially granted a motion to dismiss filed by Chamblee and Jackson before submission of the case, we reinstated the consolidated appeals in response to Pinkerton’s application for rehearing, an action that, in effect, amounted to a denial of the motion to dismiss. However, “denial of a motion to dismiss an appeal does -not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record.” Smith v. Smith, 919 So.2d 315, 316 n. 1 (Ala.Civ.App.2005). Our review of the record leads us to agree with the contention made by Chamblee and Jackson that this court is indeed without appellate jurisdiction, necessitating that the consolidated appeals be dismissed.

The record reveals that Pinkerton’s initial motion seeking relief from the judgments entered in the Chamblee and Jackson actions sought relief under subsection (1) of Rule 60(b). However, under Rule 60(b), Ala. R. Civ. P., a motion seeking relief under that subsection must be filed within four months after the entry of the judgment. When the Supreme Court, in Ex parte Chamblee, ruled that the trial court’s orders purporting to vacate its earlier judgments in the two actions were void, that court confirmed the validity of the trial court’s underlying judgments. Pinkerton’s first Rule 60(b) motion was filed more than four months after the entry of the judgments to which it was directed and was clearly untimely under the text of Rule 60(b) itself.

As we have said, however, Pinkerton has not challenged in these consolidated appeals the correctness of the trial court’s rulings as to the first Rule 60(b) motion; rather, it challenges only the correctness of the ruling denying its second Rule 60(b) motion. Although Pinkerton’s second motion was crafted so as to fall outside the four-month bar set forth in Rule 60(b) because it sought relief under the catchall provision in Rule 60(b), to which the four-month time limitation does not apply, the underlying substantive basis of the second motion is precisely the same: a contention that the trial court should grant relief because, Pinkerton says, the trial court had determined that Pinkerton’s earlier Rule 50 postjudgment motion was “due to be granted.”

Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), “[a]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion.” 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (“Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).”); but see McLendon v. Hepburn, 876 So.2d 479, 483 (Ala.Civ.App.2003) (second Rule 60(b) motion held proeedurally proper because second motion requested relief based on an “entirely different ground” than first motion, raising an issue “that could not even have been raised” when original judgment was entered).

Because a trial court has no jurisdiction to entertain a successive Rule 60(b) motion based upon the same grounds as an earlier Rule 60(b) motion, an order granting or denying such a successive motion, such as the trial court’s February 9, 2005, order, is a nullity and will not support an appeal. See Wadsworth, 906 So.2d at 182 (dismissing an appeal from order denying second Rule 60(b) motion); cf. Ex parte Jordan, 779 So.2d 183 (Ala.2000) (issuing writ of mandamus to direct trial court to set aside order, entered without jurisdiction, that purported to grant a successive Rule 60(b) motion). There being no valid order that will support an appeal, we dismiss Pinkerton’s appeal for lack of appellate jurisdiction. We note, however, that had we reached the merits of Pinkerton’s appeal, we would have been constrained to affirm the judgment of the trial court on the authority of Transcall American, Inc. v. Comtel-Birmingham, Inc., 571 So.2d 1051, 1052 (Ala.1990):

“In the present case, Transcall had already presented the same issues to the trial court in a Rule 60(b) motion that had been denied. Transcall chose not to appeal from that ruling and, instead, filed another Rule 60(b) motion several months later. We will not allow a subsequent Rule 60(b) motion to substitute for an appeal; to do so would only prolong litigation.”

APPEALS DISMISSED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, 33., concur.