author: WOODALL, Justice.

text:
    Robert Ray EDWARDS v. John Roger VALENTINE and Tina Valentine.
    1041002.
    Supreme Court of Alabama.
    Oct. 14, 2005.

      Kori L. Clement and Laura Sidwell Maki of Hare, Clement & Duck, P.C., Birmingham, for appellant.
    Hobson Manasco, Jr., Haleyville, for ap-pellees.
   WOODALL, Justice.

Robert Ray Edwards appeals from a judgment in favor of John Roger Valentine and his wife, Tina Valentine, in their action against Edwards alleging the negligent en-trustment of an automobile. We affirm.

On May 31, 2002, John Valentine was injured when the automobile he was driving was struck from behind by a pickup truck operated by Michael Garrison, an unlicensed driver. The truck Garrison was driving belonged to Edwards. Valentine sued Edwards, alleging that he had negligently or wantonly entrusted his vehicle to Garrison. The complaint included a loss-of-consortium claim asserted by Tina Valentine. After a nonjury trial, the trial court — without making specific findings of fact — awarded John $115,000 in compensatory damages and awarded Tina $35,000 on the loss-of-consortium claim. The trial court denied Edwards’s motion to alter, amend, or vacate the judgment, and Edwards timely appealed.

On appeal, Edwards challenges the sufficiency of the evidence of negligent entrustment and the amount of the judgment. He also challenges the admission of a computer printout of a “Law Enforcement Tactical System” (“LETS”) report, which purported to represent Garrison’s driving history. Additionally, he challenges the testimony of Dr. Guy W. Walker, a vocational expert who testified for the Valentines, as one who was “not disclosed by the Valentines in their responses to Mr. Edwards’ discovery requests as to expert witnesses.” Edwards’s brief, at 51.

I. Negligent Entrustment

This Court has adopted Restatement (Second) of Torts § 390 (1965) as the law of this State in cases involving negligent entrustment. Keller v. Kiedinger, 389 So.2d 129, 132 (Ala.1980). According to § 390,

“[o]ne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

Otherwise stated, “ ‘[t]he essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages.’” Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 412 (Ala.2005) (quoting Mason v. New, 475 So.2d 854, 856 (Ala.1985) (emphasis omitted)). Edwards challenges the sufficiency of the sharply disputed evidence of each of these elements.

A. Entrustment

Edwards first contends that the trial court erroneously found that he had entrusted his vehicle to Garrison on the date of the accident. When the trial court hears ore tenus testimony, as this one did, “‘its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’” New Props., L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004) (quoting Philpot v. State, 843 So.2d 122, 125 (Ala.2002)).

“Moreover, when a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore ten-us rule, ‘ “appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.”’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)).”

Stewart, 905 So.2d at 799.

“In Alabama, when one person drives a car belonging to another, a rebut-table presumption of entrustment, i.e., that the car was being operated by the driver with the permission of the owner, arises when ownership is established.... Thus, the owner of a vehicle is faced with a substantial burden in order to disprove an entrustment.” Note, Negligent Entrustment in Alabama, 23 Ala. L.Rev. 733, 738 (Summer 1971) (emphasis added; footnote omitted); see also Thompson v. Havard, 285 Ala. 718, 721, 235 So.2d 853, 856 (1970). “Entrustment can include either [1] actual entrustment, [2] continuing consent to use the vehicle, or [3] leaving the vehicle available for use.” Note, supra, at 738. A case of entrustment by “leaving the vehicle available” may occur, even though “the entrustor has not given ... permission [to use the vehicle on a particular occasion] and may even have expressly refused it.” Id. at 739 (emphasis added; footnote omitted). “In order to establish that there has been an entrustment by leaving the vehicle available, it must be shown that the entrustor knew or had reason to know that the particular incompetent involved in the accident was likely to use the vehicle without authorization and that the entrustor failed to take reasonable precautions to prevent such unauthorized use.” Id. (emphasis added; footnote omitted); see also Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956); Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926). In this case, the evidence was sufficient for the court to conclude that Edwards left the vehicle available for Garrison’s use on the date of the accident.

At the time of the accident, Garrison was married to Edwards’s sister. The Garrisons and Edwards had lived in adjacent mobile homes for approximately 10 years before the accident. Edwards testified that he “left” his truck for Garrison’s wife, who had “four small children,” to use “in case of an emergency.” Garrison testified that he took the truck on the day of the accident “to go to the feed store.” The keys were not in the truck, so Garrison entered Edwards’s home and got the keys from “the dresser or the table,” as he had occasionally done in the past.

The parties stipulated to the admission of the deposition of Billy Ray Cochran, who testified that he had seen Garrison driving Edwards’s truck on occasions before the accident. He also stated that, on numerous occasions — both before and after the accident — he had seen Edwards give Garrison the keys to Edwards’s truck, accompanied by the instructions that if Garrison, his wife, or one of their children “ever ha[d] a wreck in it, [they should claim that they] stole th[e] truck.” John Valentine testified that Cochran had repeated that account to him. Additionally, John Valentine testified that he personally had seen Garrison driving Edwards’s truck on numerous occasions before the accident.

These allegations were disputed by Edwards and Garrison. However, it is the function of the trial court, when acting as the finder of fact, to weigh the credibility of witnesses. Stephens v. State, 50 Ala.App. 244, 246, 278 So.2d 245, 247 (Crim.App.1973). The trial court’s conclusion that Edwards entrusted his vehicle to Garrison is not palpably erroneous.

B. Incompetence of Operator

“A further element of negligent entrustment is the necessity of proving that the operator of the vehicle was an incompetent or reckless person.” Note, supra, at 740. “ ‘Incompetence’ comprehends various kinds of unfitness.... ” Rush v. McDonnell, 214 Ala. 47, 51, 106 So. 175, 178 (1925).

“ ‘[I]ncompetenee is not confined to doumright inability to perform the allotted service. It goes to reliability in all that is essential to make up a reasonably safe person, considering the nature of the work, and the general safety of those ... [... who will be in the line of danger from the operations with which the person is intrusted].’ ”

214 Ala. at 51, 106 So. at 178-79 (quoting 18 R.C.L. 726 § 204)(emphasis added).

■Similarly, Restatement (Second) of Torts § 390 cmt. b (1965) states, in pertinent part:

“[0]ne who supplies a chattel for the use of another who knows its exact character and condition is not entitled to assume that the other will use it safely if the supplier knows or has reason to know that such other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use the chattel safely, or lacks the training and experience necessary for such use, or the supplier knows that the other has on other occasions so acted that the supplier should realize that the chattel is likely to be dangerously used, or that the other, though otherwise capable of using the chattel safely, has a propensity or fixed purpose to misuse it.”

(Emphasis added.)

Thus, the plaintiff alleging negligent entrustment may show that the driver to whom the defendant entrusted the vehicle was “unable or unlikely to have operated the motor vehicle with reasonable safety due to one of several characteristics or conditions,” including “general incompetence” or “habitual negligence.” Note, supra, at 740 (footnote omitted). More specifically, proof may “be established by evidence of previous acts of negligent or reckless driving, ... previous accidents, or previous acts of driving while intoxicated.” Id. at 746 (emphasis added; footnotes omitted).

Garrison has not possessed a valid driver’s license since 1980. He testified that his Alabama license expired while he was residing in Illinois; that he had refused to obtain an Illinois license; and that, after returning to Alabama, he had been “trying to get [his] license back” for two years before the accident. The trial court admitted evidence of Garrison’s driving history, which included eight convictions for driving while his license was suspended or revoked.

Edwards testified that, approximately three years before this accident, Garrison had “broadsided a lady” while driving another of Edwards’s vehicles. Although Garrison testified that the earlier accident was not his fault, Edwards testified that it was because of that earlier accident that he refused to allow Garrison to drive his vehicles.

Garrison’s driving record also contained a 1986 conviction for driving under the influence of alcohol or a controlled substance (“DUI”) and a second such conviction in 1998. In this connection, Valentine testified that immediately after the accident Garrison asked him not to notify law-enforcement authorities of the accident, because, according to Garrison, he “didn’t have [a] license and he had been doing some downers, and he didn’t want to go to jail.” (Emphasis added.) Indeed, Edwards testified that, “[b]ack at the time of the accident,” Garrison whs “drink[ing] a lot.” Our eases support a finding of incompetence based on this evidence.

It is well stated “that one who is an habitual drunkard is an incompetent driver.” McGowin v. Howard, 251 Ala. 204, 208, 36 So.2d 323, 325 (1948). The extent to which two instances of driving while intoxicated support a finding of incompetence for purposes of a negligent-entrustment claim was the question addressed in Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956). That case arose out of an accident that occurred on May 10, 1952, in Birmingham. 265 Ala. at 158, 90 So.2d at 240. Ruby Self was injured when the automobile in which she was riding was struck by an automobile operated by Terrell Mills. At the time of the accident, Mills was employed by C. Bryan Redmond, an individual “engaged in the business of selling new and used automobiles in the city of Knoxville, Tennessee.” 265 Ala. at 158, 90 So.2d at 240. “At the time of the collision Mills was under the influence of an intoxicating liquor or beverage.” Id. He was “not acting within the line and scope of his employment,” id., and, indeed, had taken the automobile from Redmond’s car lot without Redmond’s knowledge and contrary to Redmond’s express instructions. 265 Ala. at 159, 90 So.2d at 241. Self sued Redmond, averring that he “negligently entrusted the automobile to Mills, an incompetent driver who was addicted to the use of intoxicating liquors or beverages, although [Redmond] knew Mills to be an incompetent driver and knew that he was addicted to the use of intoxicating liquors or beverages.” 265 Ala. at 158, 90 So.2d at 241.

A jury trial of the case produced the following pertinent facts:

“Mills was first employed by Redmond early in March, 1952, as a new and used car salesman and was authorized by Redmond to drive the latter’s automobiles for demonstration purposes, but for no other purpose, this according to Redmond’s testimony. But irrespective of that restriction on the use of his employer’s automobiles, Mills on or about April 1, 1952, drove a Redmond automobile to the town of Clinton, Tennessee, approximately twenty miles away from Knoxville, where he was arrested on a charge of driving while intoxicated. The trip to Clinton was not on company business. Because of this episode Mills was fired but was reemployed by Redmond three or four days thereafter, with the understanding, according to Redmond, that Mills could not drive a Redmond-owned automobile from the place of business without instructions from the used car manager. As heretofore indicated, on the day of the accident here involved, Mills had no such instruction from the used car manager or anyone else in authority. W.W. Self, the husband of [the plaintiff], testified that in a conversation which he had with Redmond several months after the accident the latter stated that after Mills was reemployed he had access to the automobiles like other salesmen.”

265 Ala. at 159, 90 So.2d at 241 (emphasis added). In addition, Redmond allegedly told Selfs husband “that before May 10, 1952, he knew that Mills was a ‘drunkard’ but that he was a good salesman except for his driving and had conducted himself properly during the time that intervened between the Clinton trip and the Birmingham trip.” 265 Ala. at 159, 90 So.2d at 242 (emphasis added).

The trial court entered a judgment on a jury verdict in favor of Self, and this Court affirmed, holding that “the evidence [was] sufficient to support a finding by the jury that Mills was addicted to the use of intoxicating liquors or beverages and that Redmond had knowledge of that addiction.” 265 Ala. at 159, 90 So.2d at 241. In doing so, it explained:

“It is true that the evidence does show but two specific instances when Mills ivas drunk, one on the Clinton trip and the other on the visit to Birmingham which resulted in this litigation. Of course, the Birmingham incident cannot be considered in connection with the charge that Redmond knew of Mills’ addiction and nevertheless entrusted the automobile to him. But that instance is to be considered as going to show Mills’ addiction as charged in connection with the evidence concerning his drunkenness in Clinton ....”

265 Ala. at 159, 90 So.2d at 242 (emphasis added). In short, proof of the incompetence element was based on two instances of driving while intoxicated — one of which was the accident itself — and the testimony of the entrustor that the entrustee was a “drunkard.”

There was credible evidence in this case that Garrison had been involved in three instances of driving under the influence of alcohol or a controlled substance — including the accident itself. Similarly, Edwards testified, as did the en-trustor in Redmond, that at the relevant times, Garrison was known to “drink a lot.” Thus, the evidence of prior instances of substance abuse in this case exceeds that in Redmond. Additionally, there are other indicia of incompetence in this case, such as Garrison’s apparent inability to obtain a driver’s license and the prior automobile accident that occurred when Garrison was driving one of Edwards’s vehicles.

It is well established that the mere nonpossession of a valid driver’s license is not evidence of incompetence in the context of negligent entrustment. See Halford v. Alamo Rent-A-Car, 921 So.2d at 417 (“[e]vidence of the suspension of one’s driver’s license for failure to discharge a citation for a nonmoving violation is not substantial evidence, standing alone, of incompetence to operate a vehicle”); Day v. Williams, 670 So.2d 914, 916 (Ala.1995) (entrustee’s “competence as a driver does not hinge upon the existence or nonexistence of a driver’s license in his name”); Giles v. Gardner, 287 Ala. 166, 170, 249 So.2d 824, 827 (1971) (“The existence or non-existence of a driver’s license does not establish the competency or incompetency of a driver.”).

There are instances, however, where evidence indicating the absence of a driver’s license may be probative of incompetence in a negligent-entrustment case. See, for example, Mason, 475 So.2d at 856, where it was held that evidence that an entrustee had no driver’s license because she had “failed her driver’s test three times and had no license at the time of the accident was probative of her incompetency.” In other words, where the absence of a license is causally connected to the absence of driving ability, the evidence is entitled to some weight.

In this case, Garrison testified that his Alabama driver’s license had expired while he was residing in Illinois, and he had declined to obtain an Illinois driver’s license. It is undisputed, however, that Garrison had lived in Alabama for at least 10 years before the accident and had never reacquired an Alabama license. In fact, according to Garrison, he had been “trying to get [his] license back” for two years before the accident. (Emphasis added.) Although Garrison did not specify what circumstances had impeded his reacquiring an Alabama driver’s license, it is reasonable to infer that the inability of an adult Alabama resident to acquire a driver’s license after “trying” for two years is causally related to his or her competency as a driver.

An additional factor bearing, on this element of the negligent-entrustment claim is the evidence of Garrison’s prior accident while driving one of Edwards’s vehicles. One prior accident, standing alone, is not substantial evidence of incompetence. See Thedford v. Payne, 813 So.2d 905 (Ala.Civ.App.2001). In this case, however, Edwards’s testimony that Garrison had previously “broadsided a lady” could be considered by the trial court in conjunction with Edwards’s testimony that the prior accident was the basis for his refusal to allow Garrison to drive the vehicle that struck Valentine’s vehicle. This testimony indicates that Edwards himself considered Garrison an unreliable operator of a vehicle. See Tanis v. Eding, 274 Mich. 288, 294, 264 N.W. 375, 377 (1936) (testimony of the defendant entrust- or that the entrustee “was a reckless ... driver” was evidence of the entrustee’s incompetence precluding a directed verdict or a judgment non obstante veredicto). Considering all the facts and circumstances of this case, we cannot conclude that the judgment based on the trial court’s finding of incompetency was palpably erroneous or manifestly unjust.

C. Knowledge of Incompetence

Edwards argues that “[t]he Valentines have not met the burden of proving that Mr. Edwards knew, or should have known, of the alleged incompetence of Mr. Garrison.” Edwards’s brief, at 31. This argument is particularly unpersuasive in view of Edwards’s trial testimony that he forbade Garrison’s use of his truck because of Garrison’s past driving performance. Of course, as noted above, Edwards knew that at the time of the accident Garrison was “drinkpng] a lot.” Moreover, Edwards admitted that he knew of Garrison’s 1998 DUI conviction and knew that Garrison was unlicensed. See also Tanis, 274 Mich. at 294, 264 N.W. at 377 (testimony of the defendant entrustor that the entrustee “was a reckless ... driver” was evidence of the entrustor’s knowledge of the entrus-tee’s incompetence). This argument is, therefore, without merit.

D. Proximate Cause

Edwards next contends that “[tjhere is insufficient evidence to prove that the alleged harm to Mr. Valentine was proximately caused by the alleged negligent entrustment.” Edwards’s brief, at 36. We disagree.

Under our negligent-entrustment eases, “the entrustor’s liability for such entrustment [of a vehicle] depends upon an injury proximately resulting from the incompetency of the entrustee.” Bonds v. Busler, 449 So.2d 244, 245 (Ala.Civ.App.1984).

“Such incompetence [of the driver in the operation of the vehicle] may be manifested by active culpable negligence of the driver or it may be manifested by non-culpable, passive inability to function as a driver. Except in the latter instance, the liability of the entrustor must rest upon a consideration of the conduct of the bailee to establish the necessary element of incompetency as a proximate cause of injury.”

449 So.2d at 245.

It is undisputed that the vehicle Garrison was driving collided with the vehicle Valentine was driving because Garrison was not watching the road. There was credible evidence indicating that Garrison was operating the vehicle while he was under the influence of a controlled substance. Indeed, during oral argument on the motion for a new trial, Edwards’s counsel conceded that “there was evidence” indicating that Garrison was negligent — even wanton — in the operation of Edwards’s vehicle. In short, the evidence was sufficient to prove that the accident resulted from negligent entrustment.

E. Damages

Edwards contends that the “damages award is excessive and unsupported by the evidence.” Edwards’s brief, at 40. We disagree.

The ore tenus standard of review extends to the trial court’s assessment of damages. “It is a settled principle of Alabama appellate jurisprudence that the findings of a trial court as to the amount of damages, where evidence has been presented ore tenus or partly so, will not be disturbed on appeal in the absence of an abuse of discretion.” Freeman Wrecking Co. v. City of Prichard, 530 So.2d 235, 237 (Ala.1988). See also Robinson v. Morse, 352 So.2d 1355, 1357 (Ala.1977) (“Where evidence as to amount of damages was heard ore tenus by the trial judge, his findings should be reversed only if clearly and palpably erroneous.”). “When a trial court makes no specific findings of fact, [the appellate] court will assume that it made those findings necessary to support its judgment ‘unless such findings would be clearly erroneous.’” Aratex Servs., Inc. v. Stan Messer Stores, Inc., 637 So.2d 1351, 1353 (Ala.Civ.App.1994) (quoting Ward v. State, 592 So.2d 581, 582 (Ala.1992)). Moreover, “[o]n review of an award of damages following ore tenus proceedings, there is no requirement that the appellate court be able to determine precisely how the trial court calculated the amount awarded.” 637 So.2d at 1353; see Alford v. Jones, 531 So.2d 659 (Ala.1988).

The damages awarded in this case were based on the oral testimony of the Valentines and their occupational, expert, Dr. Guy Walker, as well as the deposition testimony of Dr. Todd Smith, John Valentine’s orthopedic surgeon. Valentine testified that he has suffered constant back pain since the accident, which, according to Dr. Smith, caused Valentine to suffer lumbar and cervical strains. Following an examination of Valentine on March 26, 2003, Dr. Smith signed a “work status form” restricting Valentine to “sedentary” work. Approximately two months later, Valentine’s employment was terminated. Dr. Walker testified that Valentine, who was 39 years old at the time of the trial, was, because of his injuries and educational status, essentially “unable to perform any type of employment.” Also, according to Dr. Walker and Tina Valentine, Valentine has suffered from anger, irritability, and depression as a result of his injuries, which have adversely affected his relationships with his wife and young daughter. The trial court made no specific findings of fact, and, assuming, as we must, “that it made those findings necessary to support its judgment,” we cannot say that the damages it awarded were “clearly and palpably erroneous.”

II. Admissibility of the LETS Printout

Edwards contends that the LETS printout, which purported to chronicle numerous traffic-offense convictions attributable to Garrison, was “inadmissible hearsay which does not fall under the public records exception because it was not properly authenticated.” Edwards’s brief, at 56. However, when the LETS printout, which was plaintiffs’ exhibit 1, was offered into evidence, the following colloquy occurred:

“[Edwards’s counsel:] We object to that one, your Honor.
“[Valentines’ counsel:] Well, Judge, he said by letter that he would stipulate it.
“[Edwards’s counsel:] No. The letter says differently. I’m going to object to it as to Robert Edwards. You can ask....
“[Valentines’ counsel:] You agreed in a letter....
“[Edwards’s counsel:] ... Mr. Valentine, anything you want.
“[Valentines’ counsel:] ... that we could stipulate it into evidence.
“[The court:] Is there anything in it about Mr. Edwards in here?
“[Edwards’s counsel:] No, sir. It is all about Mr. Garrison.
“[Valentines’ counsel:] It is Mr. Garrison’s driving record.
“[Edwards’s counsel:] He can question Mr. Garrison about it without any objection from me.
“[The court:] All right It is admitted for that purpose.”

(Emphasis added.)

Nevertheless, the Valentines’ counsel did not question either Garrison or Edwards regarding the LETS printout during the Valentines’ case-in-chief. Instead, after the Valentines rested their case, Edwards’s counsel offered into evidence defendant’s exhibit 29, which was a typed summary of the driving offenses evidenced by the LETS printout. During Edwards’s direct examination of Garrison, Edwards’s counsel stated: ‘Well, let me show you what we are going to mark as defendant’s exhibit [29] for just a minute. I went through and summarized all the different dates and offenses that you’ve got here, and I just want to make sure that this is accurate....” After Edwards’s counsel questioned Gamson in detail about the offenses on the summary — including the DUIs and the convictions for driving while his license was revoked or suspended — the summary was admitted into evidence.

The parties still dispute whether Edwards had agreed in pretrial correspondence to stipulate to the admissibility of the LETS printout. However, assuming, without deciding, (1) that there was no such stipulation, (2) that the LETS printout was inadmissible hearsay, and (3) that Edwards’s purported objection was effective, notwithstanding his express permission for the Valentines to question Garrison regarding its contents, the error in admitting the LETS printout was harmless. This is so, because Edivards, himself, introduced the relevant substance of the LETS printout through the admission of his typed summary of the offenses and through his direct questioning of Garrison.

It is well settled that evidence “apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred.” Yelton v. State, 294 Ala. 340, 342, 317 So.2d 331, 333 (1974); East Alabama Express Co. v. Dupes, 271 Ala. 504, 506, 124 So.2d 809, 810 (1960). See also Featherston v. State, 849 So.2d 217, 222 (Ala.2002); Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993). Thus, Edwards cannot complain about the admission of the LETS printout where he later offered essentially the same evidence in his own ease-in-chief.

III. Expert Testimony

Finally, Edwards challenges the trial testimony of Dr. Walker, contending that the “trial court abused its discretion in allowing Dr. Walker to give opinions as [a vocational] expert, [because he] was not disclosed by the Valentines in their responses to Mr. Edwards’ discovery requests as to expert witnesses.” Edwards’s brief, at 51. As we noted in Part I.E. of this opinion, Dr. Walker testified that, based on Valentine’s education and physical condition, there was “really” nothing Valentine could “try to do in the way of employment.” Edwards insists that “[w]ithout this testimony, there is absolutely no evidence to support any award based on Mr. Valentine’s loss of earning capacity.” Edwards’s brief, at 56.

To be sure,

“[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an'expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”

Ala. R. Civ. P. 26(b)(4)(A)(i). In other words, Rule 26 contemplates pretrial disclosure of (1) the identity of an expert witness, (2) the “subject matter” of his testimony, (3) the “substance of the facts and opinions,” and (4) a “summary of the grounds” for his opinion. Moreover, “[a] party is under a [continuing] duty seasonably to supplement [an interrogatory] response with respect to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify and the substance of the witness’s testimony.” Rule 26(e)(1) (emphasis added). “[U]nder Rule 26(b)(4)(A), a party’s attorney has the right, generally, to rely on an adverse party’s answers to interrogatories, to determine the identity of any expert witness expected to be called to testify at trial.... ” Coastal Lumber Co. v. Johnson, 669 So.2d 803, 811 (Ala.1995).

In his first set of interrogatories to the Valentines, Edwards requested the “name ... and qualifications of each and every person [the Valentines] expect[ed] to call as an expert witness at trial.” Dr. Walker’s name first appeared on the Valentines’ answers to Edwards’s second set of interrogatories, and only as one who had “assisted,” “helped,” or “consulted” in relation to Valentine’s application for “[S]ocial [Security or other disability benefits.”

However, Dr. Walker examined Valentine, and, on February 20, 2004, submitted the following report:

“Mr. John Valentine is a 39-year-old white married male who resides in Ha-leyville, Alabama. I evaluated him on February 6, 2004, in Russellville, Alabama. I administered the Hamilton Depression Inventory [‘the HDF] and a clinical interview, as well as reviewing medical records regarding his injuries suffered in the automobile accident that occurred on May 31, 2002. I also talked with his wife, Tina Valentine, regarding his behavior and activities.
“Background Information
“Mr. Valentine began his work career at age 16 as a migrant worker. He later worked in a lumberyard for most of 16 years. He then worked in the mobile home industry for 3 years, primarily loading furniture and bedding onto trucks by hand. Except for missing one or two weeks in 1999 with a back strain, he has always worked at regular duty until the automobile accident in 2002.
“Medical Information
“Mr. Valentine was injured in a wreck on May 31, 2002, and reported pain in the cervical and lumbar areas at his first medical examination and since that time. He continued to work in pain, under Light Duty conditions, until May 15, 2003. At that time, he was restricted to Sedentary work by the orthopedic specialist and has not been able to return to work since then. He has headaches every day and back and neck pain every day. Pain radiates from his low back down his leg. His face will ‘lock up’ at times, with one side of his mouth contorted upward. Although he has consistently reported both lumbar and cervical pain, only the lumbar area was treated by his physicians, so he tried a chiropractor for his neck but with little benefit.
“Psychological Information
“In the interview, Mr. Valentine admitted to having a lot of anger, depression, and irritability since his injuries. This is attributable to his daily pain and headaches, along with not being able to earn a living any more. He stated he cannot even play with his five-year-old daughter like he used to do and she does not understand. He was prescribed anti-depressant medication, but could not tolerate the side effects.
“Mr. Valentine’s scores on the HDI were valid and consistent with his interview data. He scored well up into the 99th percentile on both the Depression and Melancholia scales. The Melancholia score indicates how much the depression has affected the person’s long-term outlook, i.e., hopelessness, discouragement about the future, etc.
“Conclusions
“Mr. Valentine’s orthopedic specialist has restricted him to Sedentary work and he has no skills for that type of employment at all. He has such a high level of depression that he will not be able to concentrate to perform clerical-type duties or to retrain for other work. Although he is relatively young, I do not know any employment that Mr. Valentine can perform in his present condition. Since the accident was almost two years ago, prospects for substantial improvement now are not good. I advised Mr. Valentine to contact his physician and try another anti-depressant medication to try and improve his quality of life at home. I do not know of anything else to offer him.”

(Emphasis added.)

Five days later, that is, on February 25, 2004 — seven months before the first date set for trial — Edwards’s counsel received a copy of Dr. Walker’s report. At the beginning of the trial, the following colloquy occurred:

“[Edwards’s counsel:] Your Honor, on the issue of Dr. Walker’s testimony, Dr. Walker has never been identified as an expert in this case. Interrogatory 2 that was served on the [Valentines] at the very beginning of this case asked them to identify any experts, to state the opinions of the experts and the grounds and bases for their opinions. We have a report from Dr. Walker that was done, I guess, in his capacity as a treating doctor in the sense that he was trying to help Mr. Valentine to get some Social Security disability benefits, but they’ve never identified him as an expert, and they’ve never provided us with an expert report with expert opinions or anything of that matter.
“[The court:] You are saying you are being blind-sided today by him being here?
“[Edwards’s counsel:] Well, I don’t mind him coming in and testifying as a lay witness, but he’s never been identified as an expert witness to come in and render opinions, you know, beyond that of being factually what he observed of Mr. Valentine.
“[The court:] That puts me in a situation of either saying, ‘Okay. We’re either going to hold the case today, or we are going to postpone the case until a further date.’ I mean, I’m not going to prevent him from testifying if that’s — if he is, in fact, your expert.
“[Valentines’ counsel:] Judge, can I comment on that?
“[The court:] I’ll ask you — why in the heck didn’t you answer and respond in the interrogatories that he was your expert?
“[Valentines’ counsel:] We didn’t have him at the time we answered the interrogatories ....
“[The court:] You’ve got a continuing duty to supplement those.
“[Valentines’ counsel:] That’s right. We told him about him and sent him his report. He’s known about him. He could have taken his deposition at any time. He’s known about him since February of this year.
“[Edwards’s counsel:] I know about him being someone he has gone to and seen for help in getting Social Security disability benefits. I don’t mind him testifying about that. But what I don’t want him to do is come in and render expert opinions.
“[The court:] Okay. You can post your objections when he comes to testify.”

(Emphasis added.)

Edwards’s counsel renewed his objection when Dr. Walker was called to testify. To that objection, the Valentines’ counsel responded:

“First of all, [Edwards’s counsel] knew [Dr. Walker] was an expert all along, and at the time we were answering the interrogatories, we probably didn’t know about him. I listed him. He has had a report. He had his professional report on the rehabilitation. He could have deposed him. He knew he was an expert. I can’t imagine what he thought he would be testifying about if he was not testifying as an expert. We listed him as a witness after the initial interrogatories. He asked for a list of our witnesses, and we listed him. And he has known Dr. Walker, I think, since he did this [report] in February 2004, maybe before that.”

Edwards’s objection was overruled, and Dr. Walker proceeded to testify.

During his testimony, the Valentines’ counsel asked Dr. Walker: “Okay. And I notice, at the end of your [report], on the second page, it’s got conclusions.... [WJhat conclusions did you arrive at as to his future employability? ” (Emphasis added.) Before Dr. Walker answered, the trial court gave Edwards’s counsel a continuing objection. The following colloquy then occurred:

“[Dr. Walker:] Okay. Well, like I say, with looking at the medical opinions about his restrictions on activities and the fact that his weight limit was down to less than 10 pounds, and he had several new items checked on — this is just off the doctor’s report. They had increased his restrictions, and I didn’t see where he had been treated for depression earlier, so this is apparently getting worse, as well as his physical condition getting worse. By the fact of his restrictions, I didn’t know of anything— and I used to work placing people in jobs — I didn’t know of anything really to recommend for him to try to do in the way of employment.
“[Valentines’ counsel:] Okay.
“[The court:] The opinion you just expressed was part of the report that has been referred to?
“[Dr. Walker:] Yes.
“[The court:] And that report was given to the defense counsel when?
“[Edwards’s counsel:] February 25, 2001”

(Emphasis added.)

Edwards’s counsel objected to admission of the report “only to the extent to which it purported] to express expert opinions.” However, he stated: “I pretty much knew what Dr. Walker was going to say by looking at ... this report from a factual standpoint.” The report was admitted into evidence.

On appeal, Edwards does not argue that the trial court erred in admitting the report, which contained Dr. Walker’s conclusions. His contention is only that “he was blind-sided with this expert testimony at trial ” and “did not have the opportunity to retain his own vocational expert to rebut Dr. Walker’s testimony.” Edwards’s reply brief, at 28 (emphasis added).

“[W]e have consistently recognized that the admission of testimony from witnesses whose identity may not have been disclosed in accordance with properly conducted pretrial discovery procedure is within the trial court’s sound discretion.” Coastal Lumber Co., 669 So.2d at 811 (emphasis added). “Absent palpable abuse of that. discretion, the trial court’s decision will not be disturbed on appeal.” Id. See also Crane v. Rush, 577 So.2d 851 (Ala.1991); Erwin v. Sanders, 294 Ala. 649, 320 So.2d 662 (1975).

The only portion of Dr. Walker’s testimony to which Edwards objects is that portion opining on Valentine’s loss of earning capacity. However, that portion of his testimony differed in no relevant respect from the opinions expressed in the conclusions section of Dr. Walker’s report. It is undisputed that Edwards’s counsel received the report several months before trial and that he knew what “Dr. Walker was going to say.” In other words, he knew (1) the identity of the witness, (2) the “subject matter” of his testimony, and (3) the “substance of the facts and opinions,” as contemplated by Rule 26. Moreover, the bases, that is, the “the grounds” for Dr. Walker’s opinions, were clearly set forth in the report. Thus, through the report, Edwards’s counsel was in de facto possession of all the information required by Rule 26(b)(4)(A)(i), Ala. R. Civ. P. Under these circumstances, we cannot conclude that the trial court exceeded its discretion in allowing Dr. Walker to testify.

TV. Conclusion

For the foregoing reasons, the trial court did not err in overruling Edwards’s postjudgment motion to alter, amend, or vacate the judgment. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The complaint also contained claims against Garrison. However, a default judgment was eventually entered against him, and this appeal involves no issues regarding claims against Garrison.

      . LETS is a “secure, Web-based search engine [developed by computer scientists at the University of Alabama] that allows law enforcement and criminal justice agencies to search numerous databases simultaneously, returning information in real time while it facilitates in-depth searches.”
      On the date this opinion was released this definition could be found at: http://www.re-search.ua.edu/archive2003/lets.html (as visited October 14, 2005, and available in the clerk of the Supreme Court’s case file).

      . Valentine’s employer refused to allow him to return to work without a "release.”

      . Trial was originally scheduled for September 10, 2004, but was rescheduled for October 2004.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph BOROM et al. v. Carrie L. THAGGARD et al.
    1040723.
    Supreme Court of Alabama.
    Oct. 14, 2005.
    Milton C. Davis, Tuskegee; and William M. Russell, Jr., Tuskegee, for appellants.
    L. Cooper Rutland, Jr., of Rutland & Braswell, LLC, Union Springs; and Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for appellees.
   WOODALL, Justice.

Joseph Borom, Elmer Lee Collins, and Eula Williams (hereinafter collectively referred to as “Borom”) appeal from a summary judgment for Carrie L. Thaggard; Carrie L. Thaggard, as executrix of the estate of T.L. Thaggard, deceased; Carrie L. Thaggard, as trustee under the will of T.L. Thaggard, deceased; Timothy L. Thaggard; Chris L. Thaggard; and Thomas L. Thaggard, Jr. (hereinafter collectively referred to as “Thaggard”), in Borom’s action against Thaggard seeking to redeem land sold at a tax sale for failure to pay ad valorem taxes. We reverse and remand.

The minimum requirements for a motion for a summary judgment were summarized in Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274, 276-77 (Ala.2000):

“We review a summary judgment de novo. Alabama Ins. Guar. Ass’n v. Southern Alloy Corp., 782 So.2d 203 (Ala.2000). We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. Jefferson County Comm’n v. ECO Preservation Servs., L.L.C., 788 So.2d 121, 126 (Ala.2000)(quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988)). A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Lawson State Comm. College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988). However, a party moving for a summary judgment always bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that it argues demonstrate the absence of a genuine issue of material fact. Id.
“Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for summary judgment ‘be supported by a narrative summary of what the movant contends to be the undisputed material facts.’ Although it may be included in the motion or may be separately attached as an exhibit, the rule clearly requires that a narrative summary be included with any motion for summary judgment. The narrative summary must include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether a genuine issue of material fact exists.
“A summary judgment is not proper if the movant has not complied with the requirements of Rule 56. Moore v. ClaimSouth, Inc., 628 So.2d 500 (Ala.1993); see also Thompson v. Rehabworks of Florida, Inc., 727 So.2d 807 (Ala.Civ.App.1997), Hale v. Union Foundry Co., 673 So.2d 762 (Ala.Civ.App.1995). While the Rule provides that a movant may base its motion upon the pleadings and other documents on file with the court, it does not allow a party to file a simplistic motion devoid of a narrative summary and specific references to those portions of the record demonstrating that no genuine issue of material fact exists.”

(Emphasis added.) See also Singleton v. Alabama Dep’t of Corrections, 819 So.2d 596, 600 (Ala.2001)(“an entry of a summary judgment for the defendants would not be proper until they have complied with the requirement of [Rule 56, Ala. R. Civ. P.,] that they submit a narrative summary of what they contend to be the undisputed material facts”).

As Borom argues, and Thaggard admits, Thaggard’s summary-judgment motion was filed “with no supporting documentation or affidavits of any kind.” Borom’s brief, at 9. The motion did not contain anything resembling a narrative summary of what Thaggard contended to be the undisputed material facts. Indeed, the motion was nothing more than “a simplistic motion devoid of a narrative summary and specific references to those portions of the record demonstrating that no genuine issue of material fact exists.” 782 So.2d at 277. Therefore, the trial court erred in entering a summary judgment for Thaggard, who had not complied with requirements of Rule 56, Ala. R. Civ. P.

Thaggard argues that the trial court, in considering the motion for a summary judgment, was acting “as the finder of fact.” Thaggard’s brief, at 4, 7. Indeed, Thaggard argues that “[t]he trial court sitting as the trier of fact in this case weighed all the evidence, even though no affidavits were filed by” Thaggard, and that the trial “court sitting as the jury in this case found sufficient evidence to” support Thaggard’s contentions. Thaggard’s brief, at 6. However, “[i]t has been well said that summary judgment may not substitute for the trial of issues of fact.” State v. Robinson, 510 So.2d 834, 836 (Ala.Civ.App.1987)(citing Polytec, Inc. v. Utah Foam Prods., Inc., 477 So.2d 295 (Ala.1985)). In other words, “on a motion for summary judgment, the trial court cannot try issues of fact; it can only decide if there are issues which should go to a jury.” Barrett v. Farmers & Merchants Bank of Piedmont, 451 So.2d 257, 263 (Ala.1984) (citations omitted).

For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: WOODALL, Justice. LYONS, Justice

text:
    Gayle P. FOUNTAIN d/b/a Pioneer Sales v. Kimberly INGRAM.
    1040539.
    Supreme Court of Alabama.
    Oct. 14, 2005.

      M. Andrew Donaldson and Edward C. Hixon of Slaten & O’Connor, P.C., Montgomery, for appellant.
    Anthony J. Bishop of Cassady & Bishop, P.C., Evergreen, for appellee.
   WOODALL, Justice.

Gayle P. Fountain d/b/a Pioneer Sales (“Pioneer”) in Brewton appeals from an order denying her motion to compel arbitration of a dispute between Pioneer and Kimberly Ingram, which arose out of Ingram’s purchase of a mobile home from Pioneer. We affirm.

On February 27, 2003, in connection with her purchase of the mobile home, Ingram signed a “Manufactured Home Retail Installment Contract, No. 144477” (“the installment contract”). The parties to the installment contract were Pioneer and Ingram. The installment contract set out the principal amount of the purchase and the rate of interest and gave Pioneer a security interest in the mobile home. It stated: “You [Ingram] promise to pay us [Pioneer] the principal amount of $18,871.87 plus interest on the unpaid balance at the rate(s) of 14.00% per year.” The installment contract did not contain an arbitration provision. That same day, Ingram signed a separate document, which stated: “By signing this document, I agree that at any time if my mobile home account is more than 2 months and 3 weeks past due, Pioneer has the authority to pick up my mobile home with no further notice given to me.”

Additionally, on February 27, 2003, Ingram signed a stand-alone arbitration agreement, which provided, in pertinent part:

“ARBITRATION AGREEMENT
“1. DATE AND PARTIES. The date of this Arbitration Agreement (Agreement) is 02-27-2003, and the parties (Parties), their addresses and tax identification or social security numbers, if required, are as foliotes:
“CUSTOMERS: Kimberly Ingram
“FINANCIAL INSTITUTION: Bank ofBreioton [‘the Bank’]
“2. AGREEMENT TO ARBITRATE. The Agreement concerns any dispute, claim or other matter in question between or among the Parties (Dispute). Any party may submit a Dispute to binding arbitration, except as otherwise indicated in the Agreement or agreed to in writing by the Parties.
“The arbitrator shall determine whether a Dispute is arbitrable. A single arbitrator shall resolve any Dispute, whether individual, joint or class in nature, or whether based on contract, tort or any other matter at law or in equity.
“The Parties agree to limit the Dispute to those arising out of or relating to the agreements or transactions described as follows.
“Loan Agreements (as described), NOTE # 144477.”

(Emphasis added.) Pioneer subsequently assigned the installment contract to the Bank.

Ingram sued Pioneer, alleging that, on May 5, 2004, Pioneer “unlawfully entered upon the lands of [Ingram in the City of Evergreen] and illegally repossessed her ... manufactured home.” (Emphasis added.) Her complaint contained claims of conversion, trespass, wantonness, and breach of contract. Pioneer moved to compel arbitration, based on the standalone agreement between Ingram and the Bank. The trial court denied the motion, and Pioneer appealed.

It is undisputed that Pioneer is not a signatory to any document containing an arbitration provision. Pioneer concedes that this Court has “held that assent to arbitrate is usually to be manifested through a party’s signature on the contract containing the arbitration provision.” Pioneer’s brief, at 26 (emphasis added). It insists, however, that “Alabama courts have enforced exceptions to this rule so as to allow a non-signatory, and even one who is not a party as to a particular contract, to enforce an arbitration provision within the same contract.” Id.

Pioneer is correct in stating that this Court will enforce an arbitration provision in a contract to which the proponent of arbitration is not a signatory in either of two instances. One instance involves a “variation on the theory of ‘equitable es-toppel.’ ” ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140, 1145 (Ala.2003). Another instance “ ‘arises from a third-party-beneficiary theory that affords the [nonsignato-ry] all the rights and benefits, as well as the burdens of that contract, including those associated with arbitration.’” Id. (quoting Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000)). Pioneer contends that this case exemplifies both instances and that, therefore, Ingram’s dispute with Pioneer is subject to arbitration.

I. Equitable Estoppel

Arbitration may be compelled “under the doctrine of ‘intertwining,’ where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.” Conseco Fin. Corp. v. Sharman, 828 So.2d 890, 893-94 (Ala.2001).

“However, we have held that the doctrine of intertwining does not apply tvhen there is no ongoing arbitration between the parties to the arbitration agreement See Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540, 545 (Ala.2000), observing that ‘ “intertwining” requires at least two threads to weave together — one cannot intertwine a single thread.’ ”

828 So.2d at 893-94 (emphasis added). See also Carriage Homes v. Channell, 777 So.2d 83 (Ala.2000).

The doctrine of intertwining does not apply in this case. This is most obviously so, because the only parties to the stand-alone arbitration agreement are Ingram and the Bank, and “there is no ongoing arbitration between the parties to the arbitration agreement.” Indeed, the Bank is not a party to this action and is not involved in any dispute with Ingram. Thus, if Ingram’s claims are arbitrable, they must be so pursuant to Pioneer’s third-party-beneficiary theory.

II. Third-Party Beneficiary

“A party claiming to be a third-party beneficiary ‘must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.’” Ex parte Stamey, 776 So.2d at 92 (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993)). The third-party-beneficiary theory has particular application in the arbitration context where a litigant is attempting to claim the benefit of a contract containing an arbitration provision, while seeking to avoid the burden of the arbitration provision, or where the contract “clearly shows that the parties contemplated [the nonsignatory proponent of arbitration] as a third-party beneficiary” of the arbitration provision. Ex parte Stamey, 776 So.2d at 92.

Stamey — on which Pioneer relies — involved claims by Gary Stamey and Deborah Stamey, the purchasers of a mobile home, against Hallmont Homes, Inc. (“Hallmont”), which sold the home, and Green Tree Financial Corporation (“Green Tree”), which financed the purchase of the mobile home. 776 So.2d at 87. Hallmont was not a signatory to any document containing an arbitration clause. However, the “financing agreement between Green Tree and the Stameys,” id. (emphasis added), contained an arbitration clause and a waiver-of-jury-trial clause, which provided, in pertinent part:

“‘WAIVER OF JURY TRIAL: I HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY THAT I HAVE IN ANY SUBSEQUENT LITIGATION BETWEEN ME AND THE SELLER, OR ME AND ANY ASSIGNEE OF THE SELLER, WHERE SUCH LITIGATION ARISES OUT OF, IS RELATED TO, OR IS IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, WHETHER THE AGREEMENT IS ASSERTED AS RELATED TO, OR IS IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, WHETHER THE AGREEMENT IS ASSERTED AS THE BASIS FOR A CLAIM, COUNTERCLAIM OR CROSS CLAIM, OR A DEFENSE TO A CLAIM, COUNTERCLAIM OR CROSS CLAIM.’ ”

776 So.2d at 92-93 (capitalization in original). Moreover, “[t]he section of the contract entitled ‘ITEMIZATION OF THE AMOUNT FINANCED’ sets out the amounts that were to be ‘paid on [the Stameys’] behalf.’ Included in [that section were] the amounts that were paid on behalf of the Stameys to Hallmont for the cost of the manufactured home....” 776 So.2d at 92 (capitalization in original).

Hallmont sought to compel arbitration, arguing that it was a third-party beneficiary of the financing agreement between the Stameys and Green Tree. This Court agreed with Hallmont, noting that the waiver-of-jury-trial section “clearly” applied to Hallmont, not to Green Tree. 776 So.2d at 93. We stated: “The language in the two [quoted] sections [of the contract] clearly indicates an intent on behalf of the Stameys and Green Tree to benefit Hall-mont through the financing contract.” 776 So.2d at 93.

Nevertheless, this Court has often acknowledged the right of contracting parties to limit the scope of an arbitration provision “to the parties, or to specifically described third parties.” ECS, Inc., 880 So.2d at 1146. See, e.g., Ex parte Cox, 828 So.2d 295 (Ala.2002); Monsanto Co. v. Benton Farm, 813 So.2d 867 (Ala.2001); Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000); and Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540 (Ala.2000).

“For example, the arbitration provision in Cox provided, in pertinent part: ‘ “Any controversy or claim between or among you and I [sic] or our assignees arising out of or relating to this contract ... shall, if requested by either you or me, be determined by arbitration....” ’ 828 So.2d at 296 (emphasis added). In Monsanto, the arbitration provision stated, in part: “You [the buyer], your agents, and any other persons having or claiming to have a claim against Seller relating to the goods sold agree that any controversy or claim arising out of or relating to this contract or the goods sold hereunder, ... may be settled by arbitration....’” 813 So.2d at 869 (emphasis added). Yarbrough involved an arbitration provision that stated, in part: ‘ “The Dealer and Purchasers) mutually covenant .... that [as to] all disputes ... resulting from or arising out of the sale transaction entered into ... Dealer and the purchaser(s) agree to submit such disputeis) to BINDING ARBITRATION.”’ 779 So.2d at 1206 (capitalization original; emphasis added). Kennedy involved an arbitration clause that stated, in part: ‘ “All disputes, controversies or claims ... between seller and buyer ... arising out of any transaction or relationship between seller and buyer or arising out of any prior or future dealings between seller and buyer, shall be ... settled by arbitration.”’ 774 So.2d at 542 (emphasis added).”

ECS, Inc., 880 So.2d at 1146.

In each of the cases cited in ECS, Inc., “a nonsignatory attempted unsuccessfully to invoke an arbitration provision,” 776 So.2d at 1146 (emphasis added), because the nonsignatories were outside the scope of the arbitration provisions as expressly limited by the contracting parties. Pioneer’s position is similar to that of the nonsignatories discussed in ECS, Inc.

The relevant instruments in this case are the installment contract and the stand-alone arbitration agreement. The former describes the parties as Ingram and Pioneer, while the latter defines the parties as Ingram and the Bank. Although the stand-alone arbitration agreement referenced the installment contract, it did so only to identify that document as the sole basis of any arbitrable dispute “between or among the Parties ” (emphasis added), i.e., Ingram and the Bank.

In this connection, Pioneer argues that “[t]he plain language of the agreements between [Ingram] and Pioneer Sales indicate that the scope of the arbitration agreement includes any and all disputes relating to the [installment contract].” Pioneer’s brief, at 24. This argument, however, misses the point. The issue is not whether the stand-alone arbitration agreement encompasses “disputes relating to the [installment contract]” (emphasis added), but whether it encompasses entities who are not parties to the stand-alone arbitration agreement.

The financing agreement in Stamey contained an arbitration provision and a clause identifying the seller as the beneficiary of the payments “on behalf’ of the purchasers, while the installment, contract in this case contains neither an arbitration provision nor a provision identifying Pioneer as the beneficiary of any payments “on behalf’ of Ingram. It merely evidences Ingram’s promise to pay Pioneer a stated amount. More significantly, in Sta-mey, the seller was repeatedly identified as the beneficiary of the waiver-of-jury-trial provision, while, in this case, Pioneer is never mentioned in the stand-alone arbitration agreement between Ingram and the Bank. In short, Stamey does not support Pioneer’s position.

“Parties are free to contract as they will, provided they contract within the law.” Perkins v. Skates, 220 Ala. 216, 218, 124 So. 514, 515 (1929). “The [Federal Arbitration Act, 9 U.S.C. § 2] ‘simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms,’ and ‘parties are generally free to structure their arbitration agreements as they see fit.’” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). “[T]he federal policy favoring arbitration does not require this Court to ignore the contractual intentions of the parties.” 776 So.2d at 746.

A mobile-home purchaser and one of the other parties to the overall transaction may legally agree, pursuant to a stand-alone arbitration agreement, to make their “arbitration agreement ... specifically applicable [only] to” themselves. Carriage Homes, 777 So.2d at 86. Ingram and the Bank did so in this case. For that reason, the trial court correctly denied Pioneer’s motion to compel arbitration. The order of the trial court is, therefore, affirmed.

AFFIRMED.

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

LYONS, J., concurs in part and concurs in the result.

LYONS, Justice

(concurring in part and concurring in the result).

I concur fully with Part II of the main opinion, “Third-Party Beneficiary.” I respectfully concur in the result as to Part I, “Equitable Estoppel,” because the limitation of the scope of the arbitration agreement to the resolution of disputes between Ingram and the Bank, a point made the basis for affirming under Part II the order denying arbitration, also stands as a separate and sufficient basis for affirming the denial of arbitration on the theory of equitable estoppel. See ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140, 1146 (Ala.2003) (“At a minimum, estoppel requires that the ‘description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it.’”) (quoting Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000)). See also Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122 (Ala.2002), rejecting the nonsig-natory defendants’ equitable-estoppel argument where the language of the arbitration agreement limited arbitration to the signing parties.

      . See, e.g., Wolff Motor Co. v. White, 869 So.2d 1129 (Ala.2003); Credit Sales, Inc. v. Crimm, 815 So.2d 540 (Ala.2001); Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Ex parte Dyess, 709 So.2d 447 (Ala.1997); see also Ex parte Payne, 741 So.2d 398, 404 (Ala.1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998).


author: SEE, Justice.

text:
    Ex parte Byron D. BONNER. (In re State of Alabama v. Byron D. Bonner).
    1040761.
    Supreme Court of Alabama.
    Oct. 14, 2005.
    Byron D. Bonner, pro se.
    Judge Loyd H. Little, Jr., for respondent.
   SEE, Justice.

Byron D. Bonner petitions this Court for the writ of mandamus directing the trial court to enter a new order dismissing Bonner’s petition for postconviction relief to allow Bonner to file a timely appeal from the dismissal of his petition. We grant the petition and issue the writ.

In November 2001, the trial court convicted Bonner of various crimes. In December 2003, Bonner filed a petition for posteonviction relief, pursuant to Rule 32, Ala. R.Crim. P. Bonner moved the trial court for leave to amend his Rule 32 petition. The trial court granted Bonner’s motion to amend. On March 24, 2004, the trial court summarily dismissed Bonner’s amended Rule 32 petition. Bonner apparently was unaware that the trial court had dismissed his Rule 32 petition. The 42-day period within which to file a notice of appeal expired on May 5, 2004. In June 2004, Bonner moved the trial court for leave to again amend his Rule 32 petition. The trial court denied Bonner’s motion to amend. At some point thereafter, Bonner apparently discovered that the trial court had dismissed his Rule 32 petition and, on or about December 30, 2004, Bonner petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to reissue the order dismissing his Rule 32 petition so that he could then file a timely notice of appeal from the dismissal. The Court of Criminal Appeals denied Bonner’s mandamus petition, without an opinion. Ex parte Bonner (No. CR-04-0548, Feb. 1, 2005), 925 So.2d 1021 (Ala.Crim.App.2005) (table). Bonner now petitions this Court for a writ of mandamus directing the trial court to reissue the order dismissing his Rule 32 petition.

Bonner argues that he did not receive notification of the trial court’s dismissal of his Rule 32 petition until the time allowed for filing of a notice of appeal had elapsed. Before June 1, 2005, the writ of mandamus was “ ‘the only remedy available’ to those who, like [Bonner], through no fault of their own, fail to receive notice of the dismissal of their Rule 32 petition in time to effect a timely appeal therefrom.” Marshall v. State, 884 So.2d 900, 905 (Ala.2003). See also Ex parte Weeks, 611 So.2d 259 (Ala.1992); Ex parte Johnson, 806 So.2d 1195 (Ala.2001). Bonner’s mandamus petition and the events about which he complains all occurred before June 1, 2005; therefore, the writ of mandamus is the proper remedy in this case.

In answering Bonner’s mandamus petition, the trial court states: “this Court cannot independently verify that a copy of this Court’s order of March 24, 2004 was mailed to [Bonner].” Additionally, Bonner’s mandamus petition includes a copy of an inmate-request slip in which the mail clerk for the institution in which Bonner is incarcerated states that Bonner received no legal mail around the time period the trial court ordered Bonner’s Rule 32 petition dismissed. Accordingly, we agree with Bonner that he was deprived, through no fault of his own, of the opportunity to timely file a notice of appeal from the dismissal of his Rule 32 petition. Therefore, we issue the writ of mandamus and direct the trial court to set aside its order denying Bonner’s Rule 32 petition and to reissue a new order. The trial court should promptly give Bonner notice of the issuance of the new order so that Bonner will have an opportunity to file a timely notice of appeal.

PETITION GRANTED; WRIT ISSUED.

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

      . This Court amended Rule 32.1(f), Ala. R.Crim. P., effective June 1, 2005, to provide a different remedy for obtaining an out-of-time appeal from the denial of a Rule 32 petition:
      "On January 13, 2005, this Court adopted an order amending Rule 32.1(f), Ala. R.Crim. P., effective June 1, 2005. The amended rule provides that a petitioner may obtain an out-of-time appeal if '[t]he petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part.’ Therefore, after June 1, 2005, the proper method of seeking an out-of-time appeal from the denial of a Rule 32 petition is by filing another Rule 32 petition. The amendment of the rule, however, does not vest the Court of Criminal Appeals with jurisdiction when it reviewed V.S.'s Rule 32 petition on January 23, 2004. Also, the amended rule will not aid V.S. in seeking review. Although the amended rule expressly preserves the existing one-year deadline for the filing of the first Rule 32 petition, the amended rule establishes a six-month limitations period from discovery of the dismissal or denial for the filing of a Rule 32.1(f) petition seeking an out-of-time appeal from the dismissal or denial of a previously filed Rule 32 petition.”

        Ex parte V.S., 918 So.2d 908, 912 n. 3 (Ala.2005). In Ex parte V.S., this Court issued the writ of mandamus directing a trial court to "set aside its order denying [a] Rule 32 petition and to reissue a new order and promptly give notice of the issuance of the new order so that [the petitioner] will have an opportunity to file a timely notice of appeal.” 918 So.2d at 912.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    Mary Mitchell GREEN et al. v. Maybon DAUGHTREY et al.
    2040271.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.
    Marcus E. McCrory, Mobile, for appellants.
    Submitted on appellants’ brief only.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of July 22, 2005, is withdrawn, and the following is substituted therefor.

Mary Mitchell Green, Jennie Mitchell Green, Willie Mitchell, Milton Mitchell, Jessie B. Mitchell, Ella Mitchell Cox, Debra Mitchell Chestang, and Fred E. Mitchell (“the Mitchell claimants”) appeal a final judgment approving a private sale of a 120-acre parcel of property in Clarke County (“the property”). We reverse and remand with instructions.

On July 23, 2001, the Mitchell claimants sued Maybon Daughtrey, Grady Goulds, Michael R. White, and Comer Pace in the Clarke Circuit Court. The Mitchell claimants, through a quiet-title claim, sought a determination that they owned the property and that the defendants did not own any interest in the property. In addition, the Mitchell claimants alleged claims of trespass and conversion against the defendants and sought damages and injunctive relief. The Mitchell claimants demanded a jury trial. (The Clarke Circuit Court assigned civil action number CV-01-182 to the case initiated by the Mitchell claimants’ complaint. Accordingly, for convenience, we will refer to that case as “case number 182.”)

None of the defendants named in the Mitchell claimants’ complaint answered the complaint or asserted a counterclaim in case number 182. However, two of those defendants, Maybon Daughtrey and Grady Goulds, joined three other people who claimed an interest in the property, Martha A. Daughtrey, John York, and Tiny Harmon, in filing a complaint for division of the property on October 22, 2001. (All five plaintiffs who filed the complaint for division will be referred to collectively as “the Daughtrey claimants.”) The Daugh-trey claimants named Mary Mitchell Green, one of the Mitchell claimants, as a defendant in their complaint for division. In addition, the Daughtrey claimants asserted their claim for division of the property against fictitiously named defendants described as “any and all other persons who may claim any right, title and interest in and to” the property, which necessarily included the other seven Mitchell claimants. The Daughtrey claimants also asserted their claim for division of the property against Michael R. White, one of the defendants named by the Mitchell claimants in case number 182. The Daughtrey claimants did not demand a jury trial. (The Clarke Circuit Court assigned civil action number CV-01-256 to the case initiated by the Daughtrey claimants’ complaint for division. Accordingly, for convenience, we will refer to that case as “case number 256.”)

On May 22, 2002, the Daughtrey claimants filed motions in both case number 182 and case number 256 seeking the consolidation of those cases “in order to determine the degree of ownership of each party.” As the ground for their motion, the Daughtrey claimants stated that “the two cases involve the same parties and the same parcel of real property.” On May 23, 2002, the trial court granted, without qualification, the Daughtrey claimants’ motions to consolidate.

On October 1, 2002, the Daughtrey claimants filed two motions bearing case number 182 only. In the first motion, the Daughtrey claimants sought the appointment of a guardian ad litem- to represent unknown persons and incompetent persons claiming an interest in the property. In the second motion, the Daughtrey claimants sought an order authorizing them to serve by publication “all other persons claiming any present, future contingent remainder, reversion or other interest in the lands which are the subject of this action.” Thus, the seven Mitchell claimants who had not been identified by name as defendants in the Daughtrey claimants’ complaint for division were among those whom the Daughtrey claimants sought to serve by publication. That same day, in separate written orders bearing case number 182 only, the trial court appointed the requested guardian ad litem and authorized the requested service by publication.

Two named defendants, Michael R. White and Juanita Howard, filed answers to the Daughtrey claimants’ complaint for division bearing case number 256 only. The guardian ad litem filed an answer to the complaint for division bearing case number 182 only. The other persons named as defendants in the Daughtrey claimants’ complaint for division did not file answers.

Despite granting the Daughtrey claimants’ motions to consolidate case number 182 and case number 256 “in order to determine the degree of ownership of each party,” the trial court, acting ex mero motu, set case number 182 for a jury trial on March 31, 2003, and set case number 256 for a bench trial on May 13, 2003. Subsequently, the Mitchell claimants filed a motion titled “Motion to Continue and to Consolidate” bearing case number 182 only. The motion sought a continuance of the trial set for March 31, 2003, and consolidation of case numbers 182 and 256. On March 26, 2003, the trial court made and signed this handwritten notation on the motion:

“Motion to continue trial setting is granted.
“Motion to consolidate is granted for purposes of discovery & pretrial issues only. Cases are not consolidated for trial.”

(Emphasis in original.)

Maybon Daughtrey, Juanita Howard, and the guardian ad litem appeared for trial in case number 256 on May 13, 2003. None of the other parties did so. Nonetheless, the trial court proceeded with a bench trial on May 13, 2003. The record on appeal does not contain a transcript of this bench trial.

On June 19, 2003, in a separate written order bearing case number 182 only (“the June 19 order”), the trial court found, on the basis of unidentified evidence it had received at the May 13, 2003, trial, that a division in kind of the property was impracticable and that a sale for division was necessary. Pursuant to § 35-6-101, Ala. Code 1975, the June 19 order appointed an appraiser to appraise the property and directed the appraiser to file his appraisal with the trial court within 30 days. The June 19 order further found that the Daughtrey claimants were the only parties who had filed a notice of intent to purchase the property in accordance with § 35-6-100, Ala.Code 1975, and, therefore, were the only parties entitled 'to purchase the property.

The appraiser filed his appraisal with the trial court on July 17, 2003. He appraised the value of the property at $84,000. On August 19, 2003, in a separate written order bearing case number 256 only, the trial court set a hearing for October 23, 2003, to confirm the private sale of the property.

On October 21, 2003, the Mitchell claimants, in a motion bearing case number 182 only, moved the trial court to set aside the June 19 order. In that motion, the Mitchell claimants’ attorney stated that neither he nor his clients appeared for the trial in case number 256 on May 13; 2003, because, due to a miscommunication with ■ the Daughtrey claimants’ attorney, he'believed that the trial set on that date would be continued. In a subsequent filing in support of this motion, the Mitchell claimants submitted evidence tending to prove that Maybon Daughtrey did not own an interest in the property. The Daughtrey claimants, in a pleading bearing both case number 182 and case number-256, objected to the Mitchell claimants’ motion to set aside the June 19 order.

■ On November 24, 2003, Michael R. White, in a motion bearing Case number 256 only, moved the trial court to set aside the private sale of the property on the ground that he should have been allowed to participate in the private sale of the property because he gave timely notice of his interest in purchasing it. The' record does not reflect when the private sale actually occurred. A report of the private sale (“the report”) was not filed with the court until December 9, 2003. The report bore both case number 182 and case number 256. The report indicates that Maybon Daughtrey purchased the property for $57,000.01 ($84,000 minus the $26,999.99 value of the interests in the property claimed by Maybon Daughtrey and his wife, Martha Daughtrey). The report also listed the fractional ownership interests of the persons who owned an interest in the property. In addition, the report listed the amount of the net sales proceeds that each of the nonpurchasing parties should receive on the basis of those fractional interests. It proposed that a total of $10,431.70 be distributed to the eight Mitchell claimants for their interests in the property.

On June 24, 2004, in a separate written order bearing case number 256 only (“the June 24 order”), the trial court denied the Mitchell claimants’ motion to set aside the June 19 order and granted Michael R. White’s motion to set aside the private sale. The June 24 order granted Michael R. White 30 days to participate in the private sale of the property. On August 3, 2004, the trial court entered an order directing that, because both Maybon Daugh-trey and Michael R. White had paid into court the appraised value of the property less the appraised value of their respective interests in the property, a private auction should be held on September 21, 2004, in which Maybon Daughtrey and Michael R. White would bid on the property. This order bore both case number 182 and case number 256.

On October 12, 2004, an amended report of private sale (“the amended report”) was filed with the trial court. The amended report bore both case number 182 and case number 256. The amended report indicated that Maybon Daughtrey had purchased 80 acres of the property for $41,769.77 and that Michael R. White had purchased 40 acres of the property for $26,000. The amended report, like its predecessor, listed the fractional ownership interests of the persons who owned an interest in the property. The amended report, like its predecessor, also proposed the amounts of the net sales proceeds that should be distributed to the nonpurchasing parties for their interests in the property. The amended report proposed that a total of $10,324.56 be distributed to the eight Mitchell claimants for their interests in the property.

On October 18, 2004, in a separate written order bearing both case number 182 and ease number 256, the trial court approved the private sale reported in the amended report; ordered the conveyance of 80 acres of the property to Maybon Daughtrey and his wife, Martha Daugh-trey; ordered the conveyance of 40 acres of the property to Michael R. White; ordered the payment of expenses from the proceeds of the private sale; and ordered the distribution of the net proceeds to the nonpurchasing parties in accordance with the amended report.

On November 29, 2004, the Mitchell claimants filed a notice of appeal to the supreme court. The notice of appeal, which bore case number 256 only, designated the October 18, 2004, final judgment, which bore both case number 182 and case number 256, as the judgment being appealed. Pursuant to § 12-2-7(6), Ala. Code 1975, the supreme court transferred the appeal to this court on December 27, 2004.

Maybon Daughtrey and Michael R. White, the two purchasers of the property in the private sale authorized and approved by the trial court, have moved this court to dismiss the Mitchell claimants’ appeal on the ground that their notice of appeal was tardy. Specifically, Maybon Daughtrey and Michael R. White argue that the June 24 order, which denied the Mitchell claimants’ motion to set aside the June 19 order, was a final judgment and that, therefore, the Mitchell claimants’ notice of appeal was not filed within 42 days after the entry of that final judgment. Although the supreme court has stated that, in equity actions brought to sell lands for division, the order directing that the lands be sold will support an appeal, Sexton v. Sexton, 280 Ala. 479, 482, 195 So.2d 531, 533 (1967), it has held that the appellate courts may entertain issues pertaining to such an order in a timely appeal from the subsequent order confirming the sale, even if the notice of appeal is filed more than 42 days after the entry of the order directing that the lands be sold. Jetton v. Jetton, 502 So.2d 756, 759 (Ala.1987). Therefore, we deny the motion of Maybon Daughtrey and Michael R. White to dismiss the appeal.

On appeal, the Mitchell claimants, citing Cedars-Sinai Medical Center v. Revlon, Inc., 111 F.R.D. 24 (D.Del.1986), argue that the trial court erred in conducting a separate bench trial in case number 256 before it conducted a jury trial in case number 182. We agree.

In Cedars-Sinai, the plaintiff filed two separate actions alleging patent infringement in federal court in Delaware. In the first action, the plaintiff sued Revlon, Inc., and Armour Pharmaceutical Company, alleging infringement of its patent relating to a method of eliminating hepatitis-carrying microorganisms from a “freeze-dried” blood-clotting agent through heat treatment. The plaintiff did not demand a jury trial in that first action.

In the second action, the plaintiff sued Rorer Group, Inc., and Pantry Pride, Inc., as well as Revlon and Armour, alleging infringement of another closely related patent. The plaintiff demanded a jury trial in the second action.

The plaintiff moved the federal court to grant it a jury trial in the first action or, in the alternative, to consolidate the two actions for a joint trial before a jury. The federal court denied the plaintiffs motion to grant it a jury trial in the first action because the plaintiff had not made a timely demand for a jury trial as required by the federal rules of civil procedure. However, the federal court granted the plaintiffs motion to consolidate the cases for a joint trial before a jury and explained:

“This litigation presents an unusual set of circumstances. If the Court holds fast to its initial determination that there should be no jury trial in [the first action], then — whether or not the two cases are ultimately consolidated for purposes of a joint trial — two different triers of fact will be engaged in deciding, at least to some extent, common issues of fact and in applying common rules of law. The defendants dispute the degree of commonality between the two cases, conceding however, that some of the issues do share a common factual and legal foundation. The defendants also raise the fear of jury confusion. Most significant is the direct conflict with the plaintiffs Seventh Amendment right to a jury trial which separate jury and non-jury trials would create. Ultimately, this conflict convinces the Court that the cases should be consolidated and that the plaintiff should be granted a joint jury trial in both cases.
“The federal courts have vigilantly safeguarded the constitutional right of a litigant to have a single jury decide factual questions common to separate cases. The Seventh Amendment to the United States Constitution provides:
“ ‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.’
“U.S. Const. Art. VII.
“The prohibition, arising directly from the mandates of the Seventh Amendment, is well-established against having two juries decide the same essential issues. Gasoline Products v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931); Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 587 F.Supp. 1112, 1116-17 (D.Del.1984). Here, similar reasoning demonstrates that the plaintiffs Seventh Amendment right is in even more danger of compromise, where some of the factual determinations of the jury relating to [the patent at issue in the second action] would surely be the subject of examination in a non-jury trial by the Court on [the patent at issue in the first action]. Where a jury is the trier of fact on common issues of fact, it should be the sole determiner of those issues. Only consolidation, before a single jury, at least on the issues of validity, enforceability, and infringement, would protect the plaintiffs constitutional rights in this litigation.
“Even according the fullest possible weight to the defendants’ argument that the two cases contain quite different questions of law and fact, it is undisputed that some, even a substantial, number of the issues are common to the two cases. ...
“Furthermore, the high probability of collateral estoppel in this case, at least on the issues of validity, infringement, and enforceability, favors consolidation of the two cases before a single jury. A court must make every effort to ensure that a party’s right to trial by jury is not weakened or eliminated altogether by a prior determination of common issues in a non-jury trial, by collateral estoppel. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 896-97, 8 L.Ed.2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 508, 79 S.Ct. 948, 955, 3 L.Ed.2d 988 (1959). Under the doctrine of collateral estop-pel, a decision by a court on an issue of fact or law that was necessary to the judgment may preclude relitigation of that issue in a suit on a different cause of action involving a party to the first case. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). The doctrine applies when: (1) the issue decided in the prior litigation is identical to the issue here; (2) the prior litigation resulted in a final judgment on the merits; (3) the party against whom the estoppel is asserted is a party, or in privity with a party, to the prior proceeding; and (4) that party had a full and fair opportunity to present the claim in the prior proceeding. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.1974); Amalgamated Cotton Garment v. J.B.C. Co. of Madera, Inc., 608 F.Supp. 158, 162-63 (W.D.Pa.1984). The fact that here the same parties are litigants in both actions with common issues of law and fact demonstrates that collateral estoppel would apply.
“A possible alternative, of course, would be to try [the second action] first, where the jury trial is of right, then have the Court try [the first action]. Although estoppel would occur, it would not directly infringe on the plaintiffs constitutional right to a jury trial. However, when one of the cases is a jury trial, and common issues of law and fact exist, a single jury should be the same trier of fact. Gasoline Products, 283 U.S. at 500, 51 S.Ct. at 515.”

111 F.R.D. at 32-33 (footnote omitted; some emphasis original; some emphasis added).

Article I, § 11 of the Alabama Constitution of 1901 provides “[t]hat the right of trial by jury shall remain inviolate.” In Eason v. Bynon, 781 So.2d 238, 241 (Ala.Civ.App.2000), this court stated:

“ ‘The holding in Beacon Theatres[, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959),] was that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances, ... can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” That holding, of course, applies whether the trial judge chooses to characterize the legal issue presented as “incidental” to equitable issues or not.’
“Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). Although Dairy Queen, Inc. v. Wood construed the Seventh Amendment to the United States Constitution, Alabama cases have held that the Seventh Amendment is not materially different from Article I, §11 of the Alabama Constitution. See, e.g., Poston v. Gaddis, 335 So.2d 165 (Ala.Civ.App.), cert. denied, 335 So.2d 169 (Ala.1976). Both constitutional provisions preserve the right to jury trial as it existed at common law when the provisions were ratified. Id.”

(Emphasis added.)

In the case now before us, both the Mitchell claimants’ claims and the Daugh-trey claimants’ claims involved a common fact question, i.e., who owned the property. Indeed, the Daughtrey claimants themselves had moved the trial court to consolidate case number 182 and case number 256 “in order to determine the degree of ownership of each party” on the ground that “the two cases involve the same parties and the same parcel of real property.” The trial court granted the Daughtrey claimants’ motions to consolidate without qualification. Yet, the trial court, acting ex mero motu, subsequently set case number 256 for a separate bench trial and denied the Mitchell claimants’ motion to consolidate insofar as it sought to consolidate case number 182 and case number 256 for a joint jury trial. By setting case number 256 for a separate bench trial, denying the Mitchell claimants’ motion to consolidate the cases insofar as it sought to consolidate the cases for a joint jury trial, and proceeding with the separate bench trial in case number 256 before the jury trial in case number 182, the trial court failed to “make every effort to ensure that a party’s right to trial by jury is not weakened or eliminated altogether by a prior determination of common issues in a non-jury trial, by collateral estoppel.” Cedars-Sinai, 111 F.R.D. at 33. Consequently, we reverse the final October 18, 2004, judgment approving the private sale, which bore both case number 182 and case number 256; the June 19 order directing that the property be sold for division, which bore case number 182 only; and the June 24 order denying the Mitchell claimants’ motion to set aside the June 19 order, which bore case number 256 only. We remand the case and direct the trial court, on remand, to consolidate ease number 182 and case number 256 for a jury trial on the issue of ownership of the property.

APPLICATION FOR REHEARING GRANTED; OPINION OF JULY 22, 2005, WITHDRAWN; OPINION SUBSTITUTED; MOTION TO DISMISS DENIED; REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and MURDOCK, J., concur.

PITTMAN, J., concurs in the result, with writing.

THOMPSON, J., dissents, without writing.

PITTMAN, Judge,

concurring in the result.

I concur in the result to grant the application for rehearing, to withdraw our previous opinion, to deny the motion to dismiss, and to reverse and remand. See Ex parte Taylor, 828 So.2d 883 (Ala.2001), and Ex parte Thorn, 788 So.2d 140 (Ala.2000).

      . The seven Mitchell claimants who were not identified by name as defendants in the Daughtrey claimants’ complaint for division did not contest the propriety of the service upon them by publication.

      . Presumably, those fractional ownership interests were based on the evidence introduced at the May 13, 2003, bench trial in case number 256; however, the record is silent on that point.

      . See note 2.

      . The June 24 order denying the Mitchell claimants’ motion to set aside the June 19 order bore case number 256 only. The June 19 order directing that the property be sold for division bore case number 182 only.

      . Although the Mitchell claimants did not raise the issue either in the trial court or before this court, Maybon Daughtrey's and Grady Gould's claims for division were compulsory counterclaims in case number 182 and should not have been included in a separate action. See Rule 13(a), Ala. R. Civ. P., and Brooks v. Peoples Nat’l Bank of Huntsville, 414 So.2d 917, 919 (Ala.1982).