author: GRIFFIS, J.,

text:
    William W. DENTON, Appellant. v. STATE of Mississippi, Appellee.
    No. 2006-CP-00094-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    William W. Denton, appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. William Denton appeals the denial of his motion for post-conviction relief. Den-ton alleges that he received a disproportionate sentence following his guilty plea. We find no error and affirm.

FACTS

¶ 2. William Denton was indicted for the crimes of burglary and aggravated assault, and he entered a plea of guilty to both counts of the indictment. Before accepting the plea of guilty, the trial court used the normal plea colloquy to ensure that the plea was voluntary and intelligently entered. Finding that it was, the trial court accepted Denton’s plea of guilty and proceeded to sentence Denton.

¶ 3. On the charge of burglary, Denton was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended. On the charge of aggravated assault, Den-ton was sentenced to serve twelve years with tour years suspended. The judge also ordered that the sentences run concurrently.

¶ 4. Two years later, Denton filed a motion for post-conviction relief. The trial court summarily dismissed the motion. It is from this judgment that Denton now appeals.

STANDARD OF REVIEW

¶ 5. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(113) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 6. Denton alleges that his sentence was disproportionate to the offenses that he committed. Denton claims that since he was sixty-five years old and had no previous criminal record then he should have received a more lenient sentence. To support his contention, Denton argues that another individual, from Itawamba County, who plead guilty to a similar crime was likewise sentenced to twenty years, but thirteen years were suspended.

¶ 7. The Mississippi Supreme Court has held that “sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). However, there are times when the proportionality of the sentence should be reviewed. Id. In the event that the defendant makes a threshold comparison, showing the crime committed and the sentence imposed are “grossly disproportionate,” then this Court may review the sentence under the Solem analysis. Sims v. State, 928 So.2d 984, 988(¶ 22) (Miss.Ct.App.2006) (citing Hoops v. State, 681 So.2d 521, 538(Miss.1996)). The Solem analysis lists three criteria to examine: “(1) the gravity of the offense and the harshness of the penalty; (2) the sentence imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.” Fleming v. State, 604 So.2d 280, 302-03 (Miss.1992) (citing Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)).

¶ 8. Denton was found to have committed burglary, in violation of Mississippi Code Annotated Section 97-17-23, and aggravated assault, in violation of Mississippi Code Annotated Section 97-3-7. Burglary carries a sentence of “not less than three (3) years nor more than twenty-five (25) years.” Miss.Code Ann. § 97-17-23 (Supp.2001). Consistent therewith, Den-ton was sentenced to twenty years with eight years suspended. The sentence was clearly within the statutory range.

¶ 9. The type of aggravated assault that Denton pled guilty to carries with it a sentence of “imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.” Miss.Code Ann. § 97-3-7 (Supp.2001). Consistent therewith, Den-ton was sentenced to twelve years imprisonment with four years suspended. The sentence was also within the statutory range.

¶ 10. Here, the trial court decided to allow the sentences to run concurrently. Denton could have received the maximum sentence for each crime committed, and the trial court could have decided to allow the sentences to run consecutively. Consecutive sentences could have resulted in total sentence of forty-five years imprisonment. Denton was given a much more lenient sentence.

¶ 11. Denton broke into a house wielding a pistol and then began to hit the victim. He hit the victim more than once with the weapon. This was a very violent act that left the victim and the victim’s family traumatized. As part of his sentencing, the trial court took into account Denton’s age and lack of a prior criminal record, as well as the effect the crime had on the victim and her family. After reviewing the record, it is clear that the sentence Denton received is proportionate to the crimes that he committed. Regardless of whether another individual in a different county, received a slightly less imprisonment sentence, Denton has failed to show that his sentence is “grossly disproportionate” to the violent acts which he committed. Sims, 928 So.2d at 989(¶ 23) (citing Williams v. State, 784 So.2d 230, 236(¶ 15) (Miss.Ct.App.2000)). Therefore, we do not proceed to the Solem analysis to take into account a “sentence imposed on other criminals in the same jurisdiction.” Fleming, 604 So.2d at 302-03 (citing Solem, 463 U.S. at 292, 103 S.Ct. 3001).

¶ 12. We find that Denton’s sentence was not grossly disproportionate to the crime he committed. Therefore, the judgment denying post-conviction relief is affirmed.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONTOTOC COUNTY.

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


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    SLOAN SOUTHERN HOMES, LLC, and Pam Sloan v. Brenda McQUEEN and Alvin McQueen. Lowell Thomas and L. Thomas Development, Inc. v. Brenda McQueen and Alvin McQueen. FPD, LLC v. Brenda McQueen and Alvin McQueen.
    1041893, 1041906, and 1050068.
    Supreme Court of Alabama.
    Aug. 18, 2006.
    Rehearing Denied Oct. 13, 2006.

      T. Kelly May and H. Cannon Lawley of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellants Pam Sloan and Sloan Southern Homes, LLC.
    A. Joe Peddy and Thomas M. Little of Smith, Spires & Peddy, P.C., Birmingham, for appellants L. Thomas Development, Inc., and Lowell Thomas.
    William H. Webster and D. Mitchell Henry of Webster, Henry, Lyons & White, P.C., Montgomery, for appellant FPD, LLC.
    C. Nelson Gill of Copeland Franco Screws & Gill, PA, Montgomery, for appel-lees.
   WOODALL, Justice.

L. Thomas Development, Inc. (“Thomas Development”), and Lowell Thomas (hereinafter referred to collectively as “Thomas”); Sloan Southern Homes, LLC (“Sloan Homes”), and Pam Sloan (hereinafter referred to collectively as “Sloan”); and FPD, LLC, appeal from an order denying their motions to compel arbitration of their dispute with Brenda McQueen and her husband, Alvin McQueen. We reverse and remand.

The events underlying this dispute began when the McQueens contracted with Thomas Development to purchase real estate upon which Thomas Development would construct a residence for the McQueens. According to the McQueens, Sloan Homes was the “listing agent” for FPD, which was the predecessor in title to Thomas Development. The purchase/construction contract contained the following pertinent provision:

“[The McQueens] and [Thomas Development] agree that the construction of a home necessarily involves interstate commerce considering the sources of the various components used in the building of the house. [The McQueens] and [Thomas Development] agree that any controversy or claim arising from or relating to this agreement, or the breach thereof, or any and all claims arising between [the McQueens] and [Thomas Development], their successors or assigns shall be settled by binding arbitration pursuant to the Arbitration (binding) rules of the Better Business Bureau, except as such rules may be modified herein; or in the event the services of the Better Business Bureau are unavailable, the arbitration shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, as last revised.”

(Emphasis added.) The contract was signed on December 11, 2003, by the McQueens, Lowell Thomas, and Pam Sloan.

On February 8, 2005, the McQueens sued Thomas, Sloan, and FPD, alleging against Thomas and Sloan improper and incomplete construction of the house. The complaint also alleged that the defendants had misrepresented or concealed facts regarding the nature of the neighborhood and the suitability of the property for residential use. Thomas, Sloan, and FPD moved to compel arbitration based on the arbitration clause in the purchase/construction contract. These appeals are from the trial court’s denial of the motions to compel arbitration. On appeal, the parties join issue on a single question — whether the arbitration clause is unconscionable.

It is well settled that “[t]he burden of proving unconscionability of an arbitration agreement rests with the party challenging the agreement.” Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 504 (Ala.1999); Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 665 (Ala.2004); see also Young v. Jim Walter Homes, Inc., 110 F.Supp.2d 1344, 1347 (M.D.Ala.2000). The party challenging the agreement must demonstrate that “(1) [the challenged] terms ... are grossly favorable to a party that has (2) overwhelming bargaining power.” American Gen. Fin., Inc. v. Branch, 793 So.2d 738, 748 (Ala.2000) (summarizing the four factors set forth in Layne v. Garner, 612 So.2d 404, 408 (Ala.1992)).

The issue regarding the arbitration clause in this case stems from the clause referring disputes to the Better Business Bureau (“the BBB”). The rules of the BBB expressly exclude the recovery of punitive damages.

The defendants all agree that the punitive-damages limitations in the BBB rules are “unavailable” under Alabama law. See Ex parle Thicklin, 824 So.2d 723, 733 (Ala.2002) (a provision restricting the arbitrator’s power to award punitive damages “violates public policy, and its enforcement would be unconscionable”), overruled on other grounds, Patriot Mfg., Inc. v. Jackson, 929 So.2d 997 (Ala.2005); Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, 1246 (Ala.2001) (“an arbitration clause that forbids an arbitrator from awarding punitive damages is contrary to public policy in Alabama and, thus, is void”), overruled on other grounds, Ex parte Thicklin, supra. Consequently, Thomas and Sloan stated to the trial court, and state again in this Court, that they are not invoking the services of the BBB, but, rather, seek arbitration “conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association” (“the AAA”). Similarly, “FPD simply argued that it would be okay to agree to a different set of rules, ‘rather than get into a bunch of wrangling and appeals and such.’ ” McQueens’ brief, at 24.

For example, Sloan states: “The Defendants have declared that they are foregoing [sic] any attempt to require [BBB] services or rules be used.... Therefore, any argument of unconscionability relating to the BBB rules is moot.” Sloan’s brief, at 48. Indeed, it is clear that “[n]one of the Defendants [is] attempting to enforce the [BBB] rules.” Thomas’s reply brief, at 3.

The defendants then contend that, because the purchase/construction contract provides for recourse to the rules of the AAA “in the event the services of the Better Business Bureau are unavailable,” the arbitration clause is not unconscionable. The correct approach, as articulated by FPD, is “to remove only the offending portion of the arbitration clause,” namely the BBB option, “rather than invalidating the [arbitration] provision as a whole.” FPD’s brief, at 34.

Despite the defendants’ concessions that the punitive-damages limitation in the BBB rules is unenforceable, the McQueens insist that the arbitration clause cannot be cured simply by the defendants’ waiver, or the court’s excision, of the BBB option. In an argument that merges the defenses of fraud and unconscionability, the McQueens state:

“In the present case, the arbitration clause purports to be a forum selection clause, yet it is not, because the contract secretly displaces ... an award of punitive damages.... These deprivations of the McQueens’ legal rights are not facially apparent in the arbitration clause as they are hidden in the [BBB] rules. Because of that, every statement in the ‘arbitration clause’ is an untruth and a fraud. ”

McQueens’ brief, at 26-27 (emphasis added). Thus, the gist of their argument is that the arbitration clause is unconscionable because it is fraudulent, and it is fraudulent, they say, because it did not disclose or explain the limitation in the BBB rules on awarding punitive damages. For a number of reasons, we disagree.

First, it is well settled that “[a] dealer is under no duty to disclose, or explain, an arbitration clause to a buyer.” Johnnie’s Homes, Inc. v. Holt, 790 So.2d 956, 960 (Ala.2001); see also Jim Walter Homes, Inc. v. Spraggins, 853 So.2d 913, 917 (Ala.2002); Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 784 (Ala.2000); Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1174 (Ala.1999); and Jim Burke Auto., Inc. v. Mwphy, 739 So.2d 1084, 1087 (Ala.1999). The mere absence of such disclosure or explanation does not, therefore, form the basis of a fraud defense to arbitration.

Second, “[u]nder Alabama law, arbitration provisions are not per se unconscionable.” Providian Nat’l Bank v. Screws, 894 So.2d 625, 628 (Ala.2003). Thus, a party opposing arbitration on the ground of unconscionability must demonstrate that arbitration would involve certain terms or conditions — other than the arbitration clause itself — that “are grossly favorable” to the party seeking to compel arbitration. American Gen. Fin., Inc. v. Branch, 793 So.2d at 748. It is self-evident that a party opposing arbitration cannot make such a showing where it is conceded by all parties that the terms to which the opponent objects are unenforceable and that resort to those terms cannot, therefore, be made. This is such a case. The McQueens cite no provision — other than the indisputably unenforceable BBB rules — that is “grossly unfavorable” to them.

Although this Court will “excise[ ] void or illegal provisions in a contract, even in the absence of a severability clause,” Ex parte Celtic Life Ins. Co., 834 So.2d 766 (Ala.2002) (emphasis added), the AAA option is the functional equivalent of a severability clause specifically tailored to the arbitrability of this contract. Like the standard severability provision, the arbitration clause provides, in effect, that, if arbitration cannot be conducted according to the BBB rules, then it must nevertheless be conducted pursuant to the rules of the AAA. In other words, the parties expressly agreed that the unavailability of the BBB would not void the overall right to arbitrate.

“ ‘A court may not make a new contract for the parties or rewrite their contract under the guise of construing it.’ ” Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala.1998)). Moreover, it is the “ ‘general “duty of the court to preserve so much of a contract as may properly survive its invalid and ineffective provisions.” ’ ” Anders v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1032 (11th Cir. 2003) (quoting Ex parte Celtic Life, supra, quoting in turn 17A C.J.S. Contracts § 297 (1999)); see also McCullough v. Clinch-Mitchell Constr. Co., 71 F.2d 17, 21 (8th Cir.1934) (“It is the duty of the court to preserve as much of the contract as may properly survive.”).

In summary, the “services of the [BBB] are unavailable” as a matter of law, because the BBB rules purport to exclude punitive damages. However, because the parties agreed to proceed to arbitration under the rules of the AAA in the event that resort to the BBB was unavailable, the arbitration clause is not unconscionable. The trial court erred, therefore, in denying the defendants’ motions to compel arbitration of this dispute. The trial court’s order denying those motions is reversed, and this cause is remanded for the entry of an order compelling arbitration.

1041893 — REVERSED AND REMANDED.

1041906 — REVERSED AND REMANDED.

1050068 — REVERSED AND REMANDED.

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

      . In its reply brief, FPD adopted the arguments of Sloan and Thomas.

      . The McQueens do not assert that they requested a copy of the BBB rules or that they inquired as to the contents of those rules before signing the contract.


author: BOLIN, Justice.

text:
    E. Gaylon McCOLLOUGH v. REGIONS BANK.
    1040665.
    Supreme Court of Alabama.
    Oct. 6, 2006.

      A. Riley Powell IV of the Powell Law Firm, P.C., Gulf Shores, for appellant.
    Alan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, LLC, Mobile, for appellee.
   BOLIN, Justice.

The defendant below, E. Gaylon McCol-lough, appeals from the summary judgment in favor of the plaintiff, Regions Bank. We affirm.

Facts and Procedural History

McCollough, Larry Brock, and James Bailey were members in Medical Visions of Alabama, LLC, a limited liability company. On September 28, 2001, McCollough entered into a commercial guaranty contract with Regions Bank. Brock and Bailey entered into similar contracts with Regions Bank. In these contracts, they each agreed to pay differing portions of Medical Visions’ indebtedness to Regions Bank. McCollough agreed to pay 20%, Brock agreed to pay 30%, and Bailey agreed to pay 20%. The remaining 30% of Medical Visions’ indebtedness to Regions Bank was to be paid by persons or business entities the parties refer to as the collective limited guarantors. The parties do not identify the collective limited guarantors.

According to the commercial guaranty contracts, Medical Visions, on September 28, 2001, had executed a promissory note payable to Regions Bank in the amount of $2.1 million. However, the parties have not included this promissory note in the record. A second promissory note dated April 8, 2002, is included in the record. The second note was also for the amount of $2.1 million. On December 19, 2002, the collective limited guarantors paid 80% of the indebtedness of Medical Visions then outstanding, totaling $615,328.97. After that payment, the principal balance was $1,414,764.97. McCollough, Brock, and Bailey, though, failed to pay the percentages they had agreed to pay in their respective commercial guaranty contracts.

On February 26, 2004, Regions Bank sued Medical Visions, McCollough, Brock, and Bailey, alleging breach of contract and seeking an attorney fee. Regions Bank also sued Raymond James & Associates, Inc., which had submitted a securities account control agreement to Regions Bank to secure McCollough’s commercial guaranty contract, alleging breach of contract.

On August 9, 2004, Regions Bank filed a motion for a partial summary judgment, arguing that Medical Visions was in default under the second promissory note and that McCollough, Brock, and Bailey were in default under the terms of their respective commercial guaranty contracts. In support of its motion, Regions Bank attached copies of the second promissory note, the three commercial guaranty contracts, and affidavits from Regions Bank employees and two attorneys. On October 13, 2004, Medical Visions and McCollough filed a response to Regions Bank’s motion. It is unclear from the record whether Brock and Bailey filed a response. A hearing was held on the motion on October 15, 2004. On November 5, 2004, Medical Visions and McCollough filed a “Motion for Additional Time to Respond to Plaintiffs Motion for Summary Judgment before Court’s Order.” In their motion, Medical Visions and McCollough claimed that they had not received Regions Bank’s answers to discovery requests and that they had not been able to depose representatives from Regions Bank, despite their requests. They further stated that the evidence sought by discovery is necessary for them to respond to Regions Bank’s motion for a partial summary judgment.

The trial court never ruled on the motion for additional time; it entered its judgment in favor of Regions Bank and against Medical Visions, McCollough, Brock, and Bailey on November 23, 2004. Regions Bank’s claim against Raymond James remains pending. The trial court made its judgment against Medical Visions, McCollough, Brock, and Bailey final pursuant to Rule 54(b), Ala. R. Civ. P.

On December 6, 2004, McCollough and Medical Visions filed a motion, asking that the trial court

“[rjeconsider its November 23, 2004 Order ... and as grounds therefor sets down and assigns the following:
“1. [Medical Visions and McCol-lough] were denied an opportunity to depose material and relevant corporate representatives of the Plaintiff, Regions Bank, prior to the court’s hearing on this Plaintiffs Motion for Partial Summary Judgment.
“2. [Medical Visions and McCol-lough] previously filed their Motion for Extension of Time to file additional Response to Plaintiffs Motion for Summary Judgment prior to court’s ruling citing the fact that they were denied the opportunity to depose these above-mentioned relevant corporate representatives....
“8. [Medical Visions and McCol-lough] have been greatly prejudiced by the above-mentioned denial of their right to discovery.”

Regions Bank submitted its response to Medical Visions and McCollough’s motion on December 10, 2004, arguing that the motion was not a proper Rule 59(e), Ala. R. Civ. P., motion, to alter, amend, or vacate the judgment, because Medical Visions and McCollough are not asking the trial court to reconsider its ruling on the summary judgment but are asking for reconsideration of their motion for additional time. The trial court denied the motion for reconsideration on January 5, 2005.

McCollough filed a notice of appeal on February 9, 2005. Regions Bank filed a motion to dismiss the appeal as untimely on March 1, 2005.

I. Was the appeal timely?

Regions Bank argues that this appeal was not filed within the time limit set out in Rule 4, Ala. R.App. P. Regions Bank argues that because Medical Visions and McCollough’s motion to reconsider was not an appropriate Rule 59(e), Ala. R. Civ. P., motion, it did not extend the time in which McCollough could file his appeal.

This Court stated in Ex parte Johnson, 673 So.2d 410, 412 (Ala.1994): “The Alabama Rules of Civil Procedure make no reference to a ‘motion to reconsider.’ However, this Court treats a motion so styled as a Rule 59(e) motion to ‘alter, amend, or vacate’ a judgment, if it complies with the guidelines for such post-trial motions set out in Rule 59.” See also Ex parte Troutman Sanders, 866 So.2d 547, 549 (Ala.2003).

According to Rule 4(a)(3), Ala. R.App. P., “[t]he filing of a post-judgment motion pursuant to Rules 50, 52, 55, or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal.” This Court has held on numerous occasions that the “proper filing of a Rule 59(e) motion ‘suspend[s] the running of the time for filing a notice of appeal.’ Ala. R.App. P. 4(a)(3).” Ex parte Troutman Sanders, 866 So.2d at 549. See also Waters v. J.I. Case Co., 548 So.2d 454 (Ala.1989); Evans v. Waddell, 689 So.2d 23, 26-27 (Ala.1997).

Therefore, the issue presented here is whether the motion filed by Medical Visions and McCollough was a valid Rule 59(e) motion, therefore suspending the time in which to file an appeal. Rule 59(e) does not give much guidance, stating simply that “[a] motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” However, we note that the Alabama Court of Civil Appeals stated in Brown v. Murray Security Guard Co., 404 So.2d 79, 81 (Ala.Civ.App.1981), that “both federal and state courts mandate that the rules of procedure be ‘liberally construed to achieve justice.’ Smith v. Jackson Tool & Die, Inc., 426 F.2d 5, 8 (5th Cir.1970).”

This Court in Moore v. Glover, 501 So.2d 1187 (Ala.1986), provided a basis for determining whether a motion to reconsider is proper.

“A motion for reconsideration made after the entry of an order granting a summary judgment is not proper where the motion is not directed to a reconsideration of the evidence upon which summary judgment was based or does not seek a reargument of the legal considerations underlying the initial judgment, but is instead simply used by plaintiff to submit evidence, belatedly, in opposition to the defendant’s motion for summary judgment.”

501 So.2d at 1189. This Court held that the motion to reconsider in Moore had been properly denied because it was “not intended to have the trial court reconsider the evidence on which it had based its order granting summary judgment,” but to reconsider the summary-judgment order in light of new evidence. 501 So.2d at 1188-89. In order to present new evidence in a motion to alter, amend, or vacate a summary judgment, “ ‘the plaintiff must show circumstances which prevented his presenting evidence to counter that offered in support of the summary judgment.’ ” 501 So.2d at 1189-90 (quoting Willis v. Ideal Basic Indus., Inc., 484 So.2d 444, 445 (Ala.1986)).

In Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1866, 1369 (Ala.1988), this Court discussed the holding in Moore:

“[T]his Court recently decided a case analogous to the instant case involving the introduction of new evidence in a post-judgment motion. Moore v. Glover, 501 So.2d 1187 (Ala.1986). In that case the Court held that when new — as opposed to newly discovered — evidence was first introduced in a post-judgment motion and no reason or justification was given for failing to present the evidence while the summary judgment motion was pending, the trial judge could not consider the new evidence. Moore, 501 So.2d at 1189. Nevertheless, if the plaintiff had ‘offered a proper explanation for his failure to offer that additional evidence in response to defendant’s motion for summary judgment, the trial court could have considered it in deciding whether to amend or vacate its entry of summary judgment.’ Id. (emphasis supplied). Furthermore, ‘[a]ny reasonable explanation of the party’s failure to offer evidence in response to a motion for summary judgment [would] suffice, but this does not mean that under the guise of a Rule 59(e) motion a party [could] belatedly submit available evidence in opposition to a motion for summary judgment.’ Moore, 501 So.2d at 1191 (Torbert, C.J., concurring specially).”

The language in these cases from this Court indicates that, if a party offers a reasonable explanation for its failure to offer evidence in response to a motion for a summary judgment, then a court can consider the evidence in a Rule 59(e) motion. Here, the motion asked the trial court to reconsider the entry of the summary judgment because Medical Visions and McCollough had not been given the requested time to depose important witnesses. In this motion, McCollough clearly states his reason for failing to offer the evidence necessary to respond to the motion for a summary judgment: the trial court’s denial of the earlier filed motion for additional time to complete discovery.

Regions Bank argues that the motion to reconsider was improper and that it thus should not suspend the time within which to file an appeal. However, although the motion to reconsider in Moore was found to be improper, this Court never stated that the fact that it was improper did not suspend the time to appeal. The remedy for the improper Rule 59(e) motion in Moore was simply for the trial judge to deny the motion. Moore, 501 So.2d at 1188.

Regions Bank relies on Morris v. Merchants National Bank of Mobile, 359 So.2d 371 (Ala.1978), in arguing that the time to appeal should not be suspended by the filing of an improper Rule 59(e) motion. However, this Court offered the following reason for its holding in Morris that the time to appeal was not suspended:

“[E’lxamination of the post-trial pleadings reveals that in manner and form their purpose was either to file another amended complaint or to obtain the trial court’s consent to file another amended complaint. They were not designed to have the trial court reconsider the evidence on which the summary judgment was based.”

359 So.2d at 373-74. This Court held that the motion was not a proper Rule 59(e) motion because it was not actually a motion to reconsider the evidence on which the summary judgment was based.

Here, however, the motion to reconsider requested that the trial court reconsider the granting of the motion for a partial summary judgment. Therefore, in construing the requirements of Rule 59(e) so as to achieve justice, we hold that the motion to reconsider was a proper Rule 59(e) motion that should have suspended the time in which to file an appeal. Because the appeal was filed within 42 days of the denial of the motion to reconsider, the appeal was timely.

II. Was the summary judgment proper?

Our standard of review for a summary judgment is as follows:

“We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. We review the evidence in a light most favorable to the nonmovant.’ 943 So.2d 795 We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).”

Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342 (Ala.2006). “ ‘In a breach of contract action, a summary judgment is properly entered only where the contract is unambiguous and the facts are undisputed.’ ” Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 752 (Ala.2002)(quoting Britt v. Gonzalez, 710 So.2d 928, 930 (Ala.Civ.App.1998)).

McCollough argues that the trial court should not have granted Regions Bank’s motion for a partial summary judgment because, he says, the contract between Regions Bank and McCollough was ambiguous. (McCollough’s brief, pp. 4-7.) This Court stated in FabArc Steel Supply, Inc. v. Composite Construction Systems, Inc., 914 So.2d 344, 358 (Ala.2005):

“ ‘[I]f the trial court finds the contract to be ambiguous, it “must employ established rules of contract construction to resolve the ambiguity.” Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). If the application of such rules is not sufficient to resolve the ambiguity, factual issues arise:
“ ‘ “If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.”
“‘Id. at 949. Where factual issues arise the resolution of the ambiguity becomes a task for the jury. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853 (Ala.1991).’

“Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 405 (AIa.2001).”

The issue, therefore, is whether the commercial guaranty contract between McCollough and Regions Bank was ambiguous. This Court has discussed ambiguity of contracts on several occasions. In Warren v. Rasco, 457 So.2d 399, 401 (Ala.1984), this Court stated: “According to Black’s Law Dictionary, language in a contract is ‘ambiguous’ if it is ‘reasonably capable of being understood in more than one sense,’ citing City of Sioux Falls v. Henry Carlson Company, Inc., 258 N.W.2d 676, 679 (S.D.1977).” In other words, “ ‘[a]n ambiguity exists where a term is reasonably subject to more than one interpretation.’ ” Ex parte Awtrey Realty Co., 827 So.2d 104, 107 (Ala.2001) (quoting Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191, 194 (Ala.1991)). Conversely, “‘[a]n “instrument is unambiguous if only one reasonable meaning clearly emerges.”’” Ex parte Gardner, 822 So.2d 1211, 1217 (Ala.2001) (quoting Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186 (Ala.1992), quoting in turn Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990)).

The commercial guaranty contract between McCollough and Regions Bank contains the following relevant provisions:

“AMOUNT OF GUARANTY. This is a guaranty of payment of 20.000% of the Note, including without limitation the principal Note amount of Two Million One Hundred Thousand & 00/100 Dollars ($2,100,000.00).
“GUARANTY. For good and valuable consideration, E GAYLON MCCOL-LOUGH (‘Guarantor’) absolutely and unconditionally guarantees and promises to pay to REGIONS BANK (‘Lender’) or its order, in legal tender of the United States of America, 20.000% of the Indebtedness (as that term is defined below) of MEDICAL VISIONS OF ALABAMA, LLC (‘Borrower’) to Lender on the terms and conditions set forth in this Guaranty. Guarantor agrees that Lender, in its sole discretion, may determine which portion of Borrower’s indebtedness to Lender is covered by Guarantor’s percentage guaranty.
“INDEBTEDNESS GUARANTEED. The indebtedness guaranteed by this Guaranty includes the Note, including (a) all principal, (b) all interest, (c) all late charges, (d) all loan fees and loan charges, and (e) all collection costs and expenses relating to the Note or to any collateral for the Note. Collection costs and expenses include without limitation all of Lender’s attorneys’ fees.
“GUARANTOR’S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor’s liability under this Guaranty, from time to time ... to release, substitute, agree not to sue, or deal with any one or more of Borrower’s sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose....
“DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty.
“Indebtedness. The word ‘indebtedness’ means Borrower’s indebtedness to Lender as more particularly described in this Guaranty.
“Note. The word ‘Note’ means the promissory note dated September 28, 2001, in the original principal amount of $2,100,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refi-nancings of, consolidations of, and substitutions for the promissory note or agreement.
“GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THE COMMERCIAL GUARANTY AND GUARANTOR AGREES TO ITS TERMS. THIS COMMERCIAL GUARANTY IS DATED SEPTEMBER 28, 2001. THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.”

(Capitalization in original.)

MeCollough argues that this contract is ambiguous in its discussion of the “indebtedness”; whether the indebtedness to which the contract refers is the original principal of $2.1 million or the principal remaining after the collective limited guarantors paid their portion, leaving approximately $1.4 million in principal. He cites Kirkland & Co. of Anniston v. A & M Food Service, Inc., 579 So.2d 1278, 1282 (Ala.1991), to support his position. In Kirkland, the contract was a rental agreement that contained two different provisions concerning when rent was payable.

“Paragraph one unambiguously states that rent was due to be paid to Kirkland on the first day of each month. Had the lease contained nothing more concerning the time when payment was due, no ambiguity would exist. However, paragraph four provides only that the rent was ‘payable monthly, in advance.’ It is not certain from a reading of this phrase that the rent was due on the first of the month. We conclude that the contract is ambiguous and is susceptible of more than one meaning....”

579 So.2d at 1282. Because the two provisions concerning when the rent was to be paid differed, this Court held that the contract was ambiguous.

Here, however, the commercial guaranty contract is not ambiguous. The contract mentions the principal owed numerous times, and all references are consistent. First, in the “Amount of Guaranty” section, the contract states that MeCollough will pay 20% of the principal note amount of $2.1 million. The second time the contract mentions the amount MeCollough owes, it states that MeCollough “absolutely and unconditionally guarantees and promises to pay ... 20.000% of the Indebtedness (as that term is defined below) In the “Indebtedness Guaranteed” section, the contract states that “[t]he Indebtedness guaranteed by this Guaranty includes the Note, including (a) all principal....”

MeCollough argues that the “Indebtedness Guaranteed” section of the contract causes the contract to be ambiguous because, he says, it is unclear as to whether the principal on the note refers to the $2.1 million or the $1.4 million amount. However, MeCollough fails to recognize the definition of “Note” that is clarified in the last section of the contract. The definition of “Note” as “the promissory note dated September 28, 2001, in the original principal amount of $2,100,000.00 from Borrower to Lender” clarifies that the contract is referring to the principal amount of $2.1 million. Therefore, there is no ambiguity concerning the amount MeCollough owed.

Furthermore, another clause in the contract also clarifies what McCollough owes Regions Bank and refutes McCollough’s theory. The contract states:

“Guarantor authorizes Lender, without notice or demand and without lessening Guarantor’s liability under this Guaranty, from time to time ... to release, substitute, agree not to sue, or deal with any one or more of Borrower’s sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose.”

(Emphasis added.) The “without lessening” clause clarifies that McCollough’s liability is not lessened by Regions Bank’s dealing with other guarantors, such as the payment made by the collective limited guarantors to cover their 30% portion of the indebtedness. Therefore, McCollough owed 20% of the original amount of the note, and the commercial guaranty contract was not ambiguous.

We note that the result McCollough seeks would be an illogical conclusion for this Court to draw based on the contract. In Ex parte Awtrey Realty, 827 So.2d at 107-08, this Court stated:

“ ‘The words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract.’ Smith v. Citicorp Persom-To-Person Fin. Ctrs., Inc., 477 So.2d 308, 310 (Ala.1985), citing Food Serv. Distribs., Inc. v. Barber, 429 So.2d 1025 (Ala.1983); Sisco v. Empiregas, Inc., 286 Ala. 72, 237 So.2d 463 (1970). ‘Ambiguities will not be inserted into contracts by strained and twisted meaning where no such ambiguities exist.’ P & S Business, Inc. v. South Cent. Bell Tel. Co., 466 So.2d 928, 931 (Ala.1985)....”

If this Court were to twist this contract to conclude that the contract was ambiguous as to the amount McCollough owed Regions Bank, we would be agreeing with McCollough that the contract may mean that he owed only 20% of the amount remaining after the collective limited guarantors had paid their portion of the indebtedness. This conclusion simply does not make sense. Were the principal each of the guarantors owed reduced every time another guarantor paid his portion, then everyone would wait for the others to pay first. This would also be illogical because Regions Bank would not get the full 100% of what it had lent the parties, but only a portion of the $2.1 million.

We refuse to accept an interpretation of the commercial guaranty contract that could lead to this conclusion. Therefore, based on the plain language and the definitions in the contract, the “without lessening” clause, and the logical conclusion of what the parties intended in making this contract, there is but one reasonable meaning: that McCollough owed 20% of the original principal amount of $2.1 million. Therefore, the commercial guaranty contract is not ambiguous, and the trial court was correct in granting Regions Bank’s motion for a partial summary judgment.

Because we hold that the summary-judgment motion was properly granted, we need not address the issue of unjust enrichment as an alternative theory of recovery.

AFFIRMED.

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

      . Apparently the promissory note dated April 8, 2002, was not in addition to the note referred to in the commercial guaranty contracts as having been executed on September 28, 2001, but was a replacement for that note.

      . The record contains only a promissory note dated April 8, 2002; however, that note is for $2.1 million as well. Because the parties did not mention this discrepancy, we assume that the April 8 note is a replacement of this September 28, 2001, note mentioned in the guaranty.


author: PARKER, Justice.

text:
    Ex parte Ricky V. FULLER and M & M Trucking Company, Inc. (In re Susan M. Crain and Kurt Crain v. Ricky V. Fuller and M & M Trucking Company, Inc.).
    1041758.
    Supreme Court of Alabama.
    Oct. 6, 2006.
    Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioners.
    Roger W. Pierce and Robert M. Harper of Haywood, Cleveland, Pierce et al., Auburn; and Brian P. Strength and Jock M. Smith of Cochran, Cherry, Givens & Smith, P.C., Tuskegee, for respondents.
   PARKER, Justice.

Ricky V. Fuller and M & M Trucking Company, Inc. (“M & M Trucking”), petition this Court for a writ of mandamus ordering the trial court to vacate its order denying their motion to transfer the underlying case from Macon County to Lee County and to enter an order transferring the case. We grant the petition.

I.Facts and Procedural Posture

In December 2004, Susan M. Crain was injured when her car collided with a dump truck in an intersection in Lee County. Susan and her husband, Kurt Crain, sued the driver of the dump truck, Fuller, and his employer, M & M Trucking, in the Macon Circuit Court. Fuller and M & M Trucking moved to transfer the case to the Lee Circuit Court pursuant to Ala.Code 1975, § 6-3-21.1, the forum non conve-niens statute, which reads as follows:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein....
“(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure.”

In support of their motion, Fuller and M & M Trucking noted that the Crains, M & M Trucking, most of the witnesses, all of the evidence in its various forms, and the accident site are in Lee County. Fuller also works in Lee County, although he resides in Macon County. The Macon Circuit Court denied the motion to transfer, and Fuller and M & M Trucking filed this petition for the writ of mandamus. We grant the petition.

II.Standard of Review

“A writ of mandamus is a

“ ‘drastic and extraordinary writ, that will issue only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). Mandamus is the appropriate device by which to challenge a trial court’s decision on a motion for a change of venue. Ex parte Sawyer, 892 So.2d 919 (Ala.2004). Furthermore, “[t]his Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.” Ex parte Perfection Siding, Inc., 882 So.2d 307, 310 (AIa.2003) (citing Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002)). “Also, in considering such a mandamus petition, this Court is limited to those facts that were before the trial court.” Ex parte Perfection Siding, Inc., 882 So.2d at 310 (citing Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002)).

III.Analysis

Fuller and M & M Trucking have properly invoked the jurisdiction of this Court, and they have no other adequate legal remedy to protect them from the potential consequence of an inconvenient forum or the injustice that could result from denial of the petition for a writ of mandamus in this case. Accordingly, we must determine whether Fuller and M & M Trucking have a clear legal right to the order sought.

Section 6-3-21.1(a), Ala.Code 1975, provides:

“[A]ny court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed .... ”

(Emphasis added.) Under Ala.Code 1975, §§ 6-3-2 and -7, venue is appropriate in either Macon County or Lee County; therefore, Fuller and M & M Trucking must demonstrate either that Lee County is a more convenient forum than Macon County or that having the case heard in Lee County would more serve the interest of justice before this Court will issue the writ of mandamus. They argue in their petition that both conditions are met in this case. In order for the writ to issue, Fuller and M & M Trucking need establish only that the Macon Circuit Court exceeded its discretion in deciding either that Lee County was not a more convenient forum or that the interest of justice would be better served if venue remained in Macon County. Thus the issue before this Court is whether the Macon Circuit Court exceeded its discretion in refusing to transfer the case to Lee County when the only connection the case has to Macon County is the residence of one of the defendants and when the substantial evidence supporting the transfer to the allegedly more convenient forum has been unopposed.

This Court has held that litigation should be handled in the forum where the injury occurred. Ex parte Sawyer, 892 So.2d 898, 904 (Ala.2004) (citing Ex parte Mitchell, 690 So.2d 356, 359 (Ala.1997)). Furthermore, “[t]he defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiffs right to choose the forum; that is, the defendant must suggest transfer to a county that is ‘significantly more convenient’ than the county in which the action was filed.” Ex parte Perfection Siding, 882 So.2d at 312. See also Ex parte Townsend, 589 So.2d 711, 715 (Ala.1991), and Ex parte Pearson Mgmt. Co., 667 So.2d 48, 49 (Ala.1995).

In Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998), this Court addressed the plaintiffs attempts to file a complaint in a county outside her home county. This Court noted the facts that, in the interest of justice, justified the issuance of the writ compelling the trial court to transfer the matter to the plaintiffs home county, which was also the county where the complained-of actions occurred:

“First Family maintained no office, and kept no documents, in Marengo County. Ramsey did not live in Marengo County. No meetings between First Family and Ramsey had occurred in Marengo County. In fact, all meetings between Ramsey and employees of First Family had occurred in Dallas County, in which First Family’s office is located and where First Family desires to have the case transferred.”

718 So.2d at 662. This Court also stated in Ex parte First Family:

“Although we recognize that a plaintiff should be given great latitude in choosing a forum, we also recognize that one of the reasons the Unified Judicial System was established, and one of the reasons the Legislature adopted § 6-3-21.1, was to promote ‘justice.’ We believe it clear, under the facts of this case, that ‘the interest of justice’ requires that it be transferred.”

718 So.2d at 662.

In Ex parte Independent Life & Accident Insurance Co., 725 So.2d 955 (Ala.1998), this Court required the transfer of a breach-of-contract and fraud action from Lowndes County to Montgomery County based upon these facts:

“In this present case, all of the transactions at issue took place in Montgomery County; the plaintiffs live in Montgomery County; the three agents all work out of Independent Life’s Montgomery office; and, based on what is before us, it appears that the one agent who lives in Lowndes County did not sell any of the policies at issue, and, at most, played a minor role in the events giving rise to this action. Furthermore, it appears that each of that defendant’s conversations with the plaintiffs took place at their house in Montgomery County, not in Lowndes County. From what is before this Court, therefore, it appears that this case has no nexus with Lowndes County that would justify burdening that county with the trial of this case.”

725 So.2d at 957.

The Crains seem to place much weight on the distance that parties and witnesses would have to travel and the geographical proximity of the counties and not on other considerations. This Court has held that distances to courthouses and proximity of witnesses and parties to the forum venue are not the definitive considerations for the trial court in addressing a venue motion under the forum non conveniens statute. Ex parte Employers Modern Life Co., 772 So.2d 433, 436 (Ala.2000) (“Furthermore, the geographical proximity of Jefferson and Walker Counties does not affect our determination that the ‘interest of justice’ requires a transfer.”); and Ex parte First Family Fin. Servs., Inc., 718 So.2d at 662.

In Ex parte National Security Insurance Co., 727 So.2d 788 (Ala.1998), this Court issued a writ of mandamus directing the trial court to transfer an action from Lowndes County to Elmore County based on the following facts: When the action was filed, the defendant “maintained no office, and kept no documents, in Lowndes County”; the plaintiff “did not live in Lowndes County”; “[n]o meetings between [the defendant] and [the plaintiffl occurred in Lowndes County”; “all meetings between [the plaintiff] and employees of [the defendant] occurred in Elmore County”; the defendant’s office was located in Elmore County; the plaintiff “was treated in Elmore County for her alleged mental anguish”; all of the plaintiffs witnesses lived in Elmore County; and none of the witnesses for either party lived in Lowndes County. 727 So.2d at 790. This Court concluded: “Under these circumstances, the ‘interest of justice’ requires the transfer of the action from a county with little, if any, connection to the action, Lowndes County, to the county with a strong connection to the action, Elmore County.” 727 So.2d at 790. Distance alone does not trump all other considerations in deciding whether a forum is a more convenient forum under the statute.

Although we do not consider a lack of significant distance between the forums to be fatal to a finding that an alternate forum is more convenient under § 6-3-21.1, the Court is not stating that the distance in this case is, in fact, insignificant. However, that factor alone, if established, is not necessarily dispositive in determining that one venue is significantly more convenient so as to support the conclusion that a trial court exceeded its discretion in denying a motion for a change of venue made pursuant to § 6-3-21.1.

Although one of the eyewitnesses to the accident resides in Macon County, the same witness signed an affidavit declaring that Lee County would be a more convenient forum for him, based on the location and schedule of his work. The Crains, M & M Tracking, most of the witnesses, all the evidence in its various forms, and the accident site are all in Lee County. Fuller, who resides in Macon County, works in Lee County. Thus, Fuller and M & M Trucking have established that the interest of justice requires a transfer of this case to Lee County. They have a clear legal right to the order sought.

IV. Conclusion

The Macon Circuit Court exceeded its discretion in declining to grant Fuller and M & M Trucking’s motion for a change of venue. Accordingly, we issue the writ of mandamus and order the trial court to grant the motion and to transfer this case to the Lee Circuit Court, where it may “proceed as though originally filed therein.”

PETITION GRANTED; WRIT ISSUED.

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


text:
    Lisa SCHLARB v. Davis LEE and Danny Yancey.
    1050413.
    Supreme Court of Alabama.
    Oct. 13, 2006.

      Charles H. Pullen, Huntsville; and Robert W. Hanson, Albertville, for appellant.
    G. Bartley Loftin III and Deanna S. Smith of Balch & Bingham, LLP, Huntsville, for appellees.
   WOODALL, Justice.

Lisa Sehlarb appeals the trial court’s partial summary judgment for Davis Lee and Danny Yancey, the defendants in an action filed by Sehlarb in the Marshall Circuit Court. We dismiss the appeal.

In February 2003, Lee and Yancey, the owners of Job Source, L.L.C., terminated Schlarb’s employment with that company. On December 14, 2004, Sehlarb sued Lee and Yancey, stating two counts in her complaint. In one count, Sehlarb claimed to have an ownership interest in Job Source, which interest, according to her, Lee and Yancey had unlawfully converted by terminating her employment. In an alternative count, Sehlarb alleged that Lee and Yan-cey had been guilty of fraud. According to Sehlarb, while Lee and Yancey had represented to her that she would have an ownership interest in Job Source, she never received any “indicia of ownership in the business.”

On September 22, 2005, Lee and Yancey filed a motion for a summary judgment. Before the trial court ruled on the motion, Sehlarb amended her complaint to add a breach-of-contract claim against Lee and Yancey. After incorporating by reference the allegations of her earlier complaint, Sehlarb simply alleged that she had “a contractual relationship” with Lee and Yancey, which they had breached by her “exclusion ... from the business of Job Source.”

On November 21, 2005, the trial court entered a summary judgment for Lee and Yancey on Schlarb’s conversion and fraud claims'. On November 30, 2005, the trial court, sua sponte, certified its partial summary judgment as final under Rule 54(b), Ala. R. Civ. P. Schlarb’s breach-of-contract claim remains pending in the trial court.

This Court looks with some disfavor upon certifications under Rule 54(b).

“It bears repeating, here, that ‘ “[c]er-tifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.” ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ‘ “ ‘Appellate review in a piecemeal fashion is not favored,.’ ” ’ Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).”

Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).

Lee and Yancey argue that “the facts and issues relating to Sehlarb’s claim of breach of contract are so closely intertwined with the issues relating to her claims [of] fraud and conversion that, in the interest of justice and judicial economy, certification pursuant to Rule 54(b) was improper.” Lee and Yancey’s brief, at 22 n. 6. Schlarb has not replied to this argument. We agree with Lee and Yan-cey.

The essence of both Schlarb’s fraud claim and her breach-of-contract claim is that Lee and Yancey agreed to, but did not, give her an ownership interest in Job Source. Before this Court, in arguing that she had an interest in Job Source sufficient to support her claim of conversion, Schlarb relies, in substantial part, upon her alleged discussions with Lee and Yan-cey concerning the division of ownership in Job Source. Under these circumstances, we conclude that, in the interest of justice, Schlarb’s fraud and conversion claims should not be adjudicated separately from the beach-of-contract claim.

The trial court exceeded its discretion in certifying the partial summary judgment as final. “A nonfinal judgment will not support an appeal.” Dzwonkowski, 892 So.2d at 363. Consequently, this appeal is dismissed as being from a nonfi-nal judgment.

APPEAL DISMISSED.

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


author: STUART, Justice. SEE, Justice

text:
    AMERICAN GENERAL FINANCE CO., INC. v. ESTATE OF Raymond Bruce HURSTON, Jr., et al.
    1050366.
    Supreme Court of Alabama.
    Oct. 13, 2006.
    Leonard N. Math and Katherine E. Lu-ders, Montgomery, for appellant.
    Theresa S. Dean, Opelika, for appellees.
   STUART, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

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

SEE, J., dissents.

SEE, Justice

(dissenting).

I respectfully dissent from the no-opinion affirmance.

Raymond Bruce Hurston, Jr., and Shir-lene Brock, a married couple, owned real property as joint tenants with right of survivorship. They divorced and entered into a property settlement incident to the divorce. After the divorce, Hurston mortgaged the property to American General Finance Co., Inc. Hurston later died, and American General Finance filed this declaratory-judgment action to determine whether it holds a valid mortgage against the property, arguing that the settlement agreement entered into at the time of the divorce severed the joint tenancy between Hurston and Brock.

The test for whether a joint tenancy with right of survivorship has been severed by a property settlement incident to a divorce is whether the parties intended to sever the joint tenancy when they entered into their settlement agreement. In Fitts v. Stokes, 841 So.2d 229 (Ala.2002), Richard Fitts and Betty Stokes owned property as joint tenants with right of sur-vivorship. They divorced, and under their settlement agreement, Betty was to convey her one-half interest in the property to Richard Fitts, except that if he could not make the mortgage payments, then he was to convey his one-half interest to Betty Stokes. This Court concluded that their settlement agreement evinced an intent to sever the joint tenancy and held that the settlement agreement therefore effectively severed the joint tenancy between Richard Fitts and Betty Stokes. Fitts, 841 So.2d at 232.

In Watford v. Hale, 410 So.2d 885 (Ala.1982), James Hale and Myrtle Hale divorced and agreed to a property settlement. This Court found that the joint tenancy with right of survivorship was severed by the property settlement because “it was the intention of the parties to destroy the joint tenancy.” 410 So.2d at 886. Further, this Court noted its “accord” with the following statement by the Colorado Supreme Court concerning an analogous case:

“ ‘The intent of the parties as shown in the property settlement agreement is central to the issue presented. This agreement provided for the ultimate sale of the property and the division of the proceeds, which evinces the intent to no longer hold the property in joint tenancy from the effective date of the agreement. The entire tenor of those provisions of the agreement pertaining to this property is inconsistent with any purpose of the parties to continue the right of survivorship, which is the sine qua non of joint tenancy.’ ”

Watford, 410 So.2d at 886 (quoting Mann v. Bradley, 188 Colo. 392, 395, 535 P.2d 213, 215 (1975)).

This Court stated in Summerlin v. Bowden, 286 Ala. 391, 393, 240 So.2d 356, 358 (1970), that “divorce does not affect the rights of the parties” with respect to joint tenancies with right of survivorship. Although I agree that the fact of divorce does not alone effect a severance of a joint tenancy, I believe that divorce does create a presumption that the parties intended to sever the joint tenancy, absent sufficient evidence of an intent to the contrary. Moreover, in this case, even without such a presumption, the evidence is sufficient to demonstrate the parties’ intent to sever their joint tenancy. Hurston’s estate and Brock have made such a showing.

Although a judgment of divorce does not necessarily sever the joint tenancy with right of survivorship, Summerlin, supra, when the judgment of divorce is “read in conjunction” with the terms of the property settlement, the circumstances “as a whole” can sever that joint tenancy. Watford, supra. It is useful to distinguish this case from Porter v. Porter, 472 So.2d 630 (Ala.1985), in which Mary Jane Porter and Denis Porter, a married couple, owned property as joint tenants. They divorced and executed a settlement agreement whereby Mary Jane Porter obtained the right to “exclusive occupancy” of the residence on the property “until a change in circumstances warrants a modification” of the divorce judgment. Porter, 472 So.2d at 631. This Court held that the “mere temporary division of property held by joint tenants, without an intention to partition, will not ... amount to a severance of the joint tenancy.” 472 So.2d at 633. Mary Jane Porter’s exclusive right to occupy the property was not sufficient to sever the joint tenancy with right of survivor-ship. 472 So.2d at 633. However, in Porter the trial court retained jurisdiction to “later modify the occupancy or terminate the joint tenancy.” 472 So.2d at 633. Thus, it was apparent from the trial court’s order that the joint tenancy had not been terminated. In the case before us, on the other hand, the trial court retained no such power to later terminate the joint tenancy. Porter, 472 So.2d at 633.

The trial court in Porter retained jurisdiction over the jointly owned property, thus indicating that the division of that property was “mere[ly] temporary” and that it did not “amount to a severance of the joint tenancy.” 472 So.2d at 633. Because the settlement agreement between Hurston and Brock was not similarly temporary, the reasoning in Porter does not apply here. On the contrary, the terms of the settlement agreement between Hur-ston and Brock, combined with the fact that the parties were divorcing, is a sufficient demonstration of the intent to sever their joint tenancy with right of survivor-ship.

Under the terms of the settlement agreement, Hurston and Brock agreed that “at the time and in the event that [the property] is sold ... whatever equity is derived ... will be divided equally.” Until that time, Hurston “shall have exclusive right to continue to reside [on the property] and to exercise exclusive control over [it].”

In Kirven v. Reynolds, 536 So.2d 936 (Ala.1988), J.W. Kirven and Margaret Kir-ven held property as joint tenants with right of survivorship. They divorced and executed a settlement agreement whereby their minor child would have the exclusive use of the property

“ ‘until such time as the [child] becomes of age, marries or becomes self-supporting, or until such time as the Complainant remarries. Upon the occurrence of the first of the above named events, said house shall be sold and the proceeds derived therefrom shall be divided equally between the parties hereto.’ ”

536 So.2d at 937. This Court held that the settlement agreement evinced sufficient intent to sever the joint tenancy with right of survivorship. The present case is analogous. Just as in Kirven, an exclusive use of the property was bestowed, and the parties agreed to split the proceeds should the property later be sold; unlike the trial court in Porter, the trial court here did not retain jurisdiction to later sever the joint tenancy. On the basis of the terms of the settlement agreement in Kirven, this Court held that “it was the intention of the parties to destroy the joint tenancy.” Kirven, 536 So.2d at 938. Similarly, Hurston and Brock evinced such an intent to sever their joint tenancy with right of survivor-ship.

For the foregoing reason, I respectfully dissent.


author: NABERS, Chief Justice.

text:
    Tony GOOLESBY et al. v. KOCH FARMS, LLC.
    1041084.
    Supreme Court of Alabama.
    Oct. 13, 2006.

      Thomas W. Christian, LaBella S. Alvis, Deborah Alley Smith, and Jennifer M. Thompson of Christian & Small, LLP, Birmingham; and Patricia C. Kellett of Kel-lett & Kellett, Fort Payne, for appellants.

      Robert C. Wilson of Wilson & Scott, LLC, Fort Payne; and John R. Anderson and H. Wayne Grant of Grant, Konvalinka & Harrison, P.C., Chattanooga, Tennessee, for appellee.
   NABERS, Chief Justice.

Tony Goolesby, Belinda Goolesby, and Buddy Goolesby, the defendants and coun-terclaimants in the underlying action, appeal from a judgment ordering a new trial on their counterclaim alleging breach of contract, as well as a judgment as a matter of law for the plaintiff as to the Goolesbys’ remaining counterclaims. We affirm.

I. Facts and Procedural History

The Goolesbys operated the San Rosa Farm in DeKalb County. In 1998, Tony and Buddy Goolesby decided to explore the possibility of raising chickens on the farm. Tony contacted Koch Farms, LLC, a Tennessee limited liability company involved in the chicken business. In January 1999, Koch Farms issued a “letter of intent” stating that Koch Farms would award a breeder-hen contract (also referred to as a “grower contract”) to the Goolesbys, conditioned on the Goolesbys’ construction of two henhouses satisfactory to Koch Farms.

The Goolesbys built the henhouses, and on December 1, 1999, Buddy Goolesby and Koch Farms entered into a grower contract. Under the terms of the contract, Koch Farms provided Buddy with chickens, feed, and veterinary services. Koch Farms retained title to the chickens and had the express right to repossess the chickens under certain conditions. Buddy was responsible for raising the chickens, collecting eggs, and delivering the eggs to Koch Farms; Koch Farms would then pay Buddy set amounts based on the number of eggs delivered. In the ordinary course of business, Koch Farms would occasionally pick up a flock of chickens from the Goolesbys and replace it with a new flock. The contract was scheduled to terminate in December 2002.

On September 6, 2002, Koch Farms picked up the flock of chickens from the Goolesbys. On October 9, 2002, Koch Farms’ breeder manager, Ted New, delivered a new flock to the Goolesbys. According to Koch Farms, New told Tony Goolesby that the new flock was delivered with the expectation that Koch Farms and the Goolesbys would enter into a new contract and that Koch Farms would bring the new contract by for signature in a few days. The Goolesbys deny this; they claim that they believed that the flock delivered on October 9, 2002, was delivered pursuant to the 1999 contract, which was still in effect on that date.

On October 11, 2002, New presented Tony Goolesby with a copy of a new contract. On October 14, 2002, Tony signed the contract; however, he made handwritten comments in the margin indicating his objections to some of the contract terms. New and Tony discussed the contract over the next several days, and Tony continued to object to certain terms in the contract he had signed. New then informed Tony that Koch Farms would remove the flock unless Tony signed the contract with no modifications.

Within the next few days (the record and briefs are unclear as to the exact date), New attempted to remove the flock he had delivered on October 9, 2002, from the Goolesbys’ farm. Tony Goolesby met New at the gate to the farm and refused to allow him to enter the farm or to remove the flock.

On October 17, 2002, Koch Farms filed in the DeKalb Circuit Court a complaint for the recovery of chattels in specie and a motion for writ of seizure, naming Tony Goolesby and San Rosa Farm as defendants. The complaint also included a request for damages for breach of contract, relating to Koch Farms’ expenses in removing the chickens from the Goolesbys’ farm.

On October 21, 2002, the circuit court granted Koch Farms’ motion for a writ of seizure and ordered the sheriff to seize the chickens. The same day, DeKalb County sheriffs deputies went to the Goolesbys’ farm and removed the chickens. Although the parties dispute the details of what occurred that day, it is undisputed that there was a confrontation between Tony and Buddy Goolesby and the deputies that resulted in Tony and Buddy Goolesby’s being arrested and charged with obstructing government operations. Those charges were eventually dropped.

On November 12, 2002, Tony Goolesby moved to join Belinda Goolesby and Buddy Goolesby as defendants in Koch Farms’ action against him; the trial court granted the motion. On November 18, 2002, the Goolesbys answered Koch Farms’ eom-plaint and counterclaimed, alleging conversion, fraud, breach of contract, intentional interference with business relations, economic duress, abuse of civil process, and conspiracy.

Also on November 18, 2002, the trial court held a hearing on a motion by Tony Goolesby to dissolve the writ of seizure. After taking evidence ore tenus, the trial court denied the motion to dissolve the writ of seizure. It issued a written order on November 20, 2002, in which it found that Koch Farms had a legitimate concern for the safety of the chickens and that the seizure complied with the requirements of Rule 64, Ala. R. Civ. P., which governs seizure of property prior to the entry of judgment. Although the Goolesbys dispute some of the findings of fact in the trial court’s November 20 order, they do not argue that the trial court’s legal conclusions were incorrect or that they are entitled to have the chickens that were removed pursuant to the writ of seizure returned.

In December 2004, the case went to trial on Koch Farms’ claim of breach of contract and the Goolesbys’ counterclaims. At the conclusion of Koch Farms’ evidence, the trial court entered a judgment as a matter of law in favor of Belinda Goolesby on Koch Farms’ breach-of-contract claim. After the Goolesbys presented their ease, the trial court entered a judgment as a matter of law for Koch Farms on all of the Goolesbys’ counterclaims except the one alleging breach of contract. The jury thus considered only Koch Farms’ breach-of-contract claim against Tony and Buddy Goolesby and the Goolesbys’ breach-of-contract counterclaim against Koch Farms.

The jury returned a verdict for Tony and Buddy Goolesby on Koch Farms’ breach-of-contract claim. With respect to the Goolesbys’ breach-of-contract counterclaim, the jury found that Koch Farms breached the grower contract when it repossessed the flock, and it awarded the Goolesbys $275,000 in damages. On December 14, 2004, the trial court entered a judgment on the jury verdict.

On December 21, 2004, the Goolesbys filed a motion to alter or amend the judgment, under Rule 59(e), Ala. R. Civ. P., in two respects. First, they asked the trial court to remove from the order language indicating that the jury’s award was “for breach of contract” because the verdict form contained only the phrase “economic damages.” Second, they asked the trial court to award prejudgment interest on the amount of the jury verdict. On January 12, 2005, Koch Farms filed a Rule 59(1), Ala. R. Civ. P., motion requesting a remittitur of the damages.

The trial court held a hearing on both posttrial motions. On March 11, 2005, it issued an order denying the Goolesbys’ motion but granting Koch Farms’ motion for a remittitur and reducing the damages award to $100,632.62. The Goolesbys refused to accept the remittitur, and on April 6, 2005, the trial court set aside the judgment in their favor and ordered a new trial on their breach-of-contract counterclaim. The Goolesbys appealed.

II. Issues

On appeal, the Goolesbys present five issues:

1)Whether the trial court erred in granting Koch Farms’ motion for a remit-titur of damages;

2) Whether the trial court erred in denying their motion to amend the judgment to include prejudgment interest;

3) Whether the trial court erred in entering a judgment as a matter of law on the Goolesbys’ counterclaims alleging conversion, intentional interference with business relations, and civil conspiracy;

4) Whether the trial court erred in admitting as evidence the November 20, 2002, order denying Tony Goolesby’s motion to dissolve the writ of seizure; and

5) Whether the trial court erred in instructing the jury that it could not consider “what occurred between the sheriffs deputies and Tony and Buddy Goolesby” in determining whether the Goolesbys were entitled to damages for mental anguish regarding their breach-of-contract counterclaim.

III. Analysis

A. Remittitur

The Goolesbys first challenge the trial court’s decision to grant Koch Farms’ motion for a remittitur of damages. A trial court has great discretion in determining whether to require a remittitur and its decision will be reversed only if the trial court exceeds that discretion. Dempsey v. Phelps, 700 So.2d 1340, 1347 (Ala.1997)(“The trial court has much discretion in determining ... whether to require a remittitur .... ”). In this case, the trial court did not exceed its discretion by ordering a remittitur.

As a general rule, damages in a breach-of-contract action are “‘that sum which would place the injured party in the same condition he would have occupied if the contract had not been breached.’ ” Ex parte Steadman, 812 So.2d 290, 295 (Ala.2001)(quoting Brendle Fire Equip., Inc. v. Electronic Eng’rs, Inc., 454 So.2d 1032, 1034 (Ala.Civ.App.1984)). This measure is commonly referred to as a party’s “expectation interest.” 24 Richard A. Lord, Williston on Contracts § 64:2, at 22 (4th ed.2002). In this case, the Gooles-bys’ breach-of-contract counterclaim was based on the claim that Koch Farms repossessed the flock without cause approximately two months before the contract executed in 1999 was to expire. Without objection from the Goolesbys, the trial court instructed the jury as follows:

“The law says that damages for breach of a contract is that sum which would place the injured party in the same condition he would have occupied if the contract had not been breached. If you find that the Goolesbys are entitled to recover for breach of contract, then you would determine from the evidence what amount of money they could reasonably have been expected to make from the flock of chickens that was removed, or in other words, the value of the contract, and they would be entitled to a recovery in that amount.”

After receiving this instruction, the jury awarded the Goolesbys $275,000 in damages.

In ruling on Koch Farms’ motion for a remittitur, the trial court considered undisputed evidence indicating that, but for the breach, Koch Farms would have owed the Goolesbys additional payments under the contract, to a maximum of $110,632.32. The trial court also determined that, but for the breach, the Goolesbys would have incurred $10,000 in additional expenses in caring for the chickens. By subtracting the Goolesbys’ additional expenses from the maximum additional income that the Goolesbys would have received under the contract, the trial court arrived at its figure of $100,632.32, an amount calculated to give the Goolesbys the entire benefit of their bargain.

The Goolesbys do not challenge the trial court’s calculation of their direct damages. They argue, however, that they are entitled to consequential damages because, they say, the dispute with Koch Farms made it more difficult for them to enter into a grower contract with another supplier. The Goolesbys also state that they were forced to sell the farm at a loss and that they would have been able to demand a better price had it not been for Koch Farms’ breaching the grower contract.

The trial court correctly excluded these claimed losses from the award of damages. Consequential damages must be “ ‘capable of ascertainment with reasonable, or sufficient, certainty, or there must be some basis on which a reasonable estimate of the amount of the [damages] can be made ....’” Med Plus Props. v. Colcock Constr. Group, Inc., 628 So.2d 370, 376-77 (Ala.1993)(quoting Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 149, 182 So.2d 880, 881 (1966)). There was no reasonably certain basis on which to determine the likelihood that the Goolesbys would or would not be able to enter into another grower contract or what the terms of such a contract would be. See Garrett v. Sun Plaza Dev. Co., 580 So.2d 1317, 1320 (Ala.1991) (“profits are too remote and cannot be recovered when they are not the immediate fruits of the principal contract, but are dependent on collateral engagements”). Nor could the trial court have determined with reasonable certainty to what degree, if any, the reduction in the value of the farm was the result of Koch Farms’ breach.

The Goolesbys also argue that they were entitled to recover damages for their expenses in preparing to perform under the contract — including the cost of purchasing additional land, building the henhouses, and hiring additional workers. Such damages, referred to as “reliance damages,” are generally awarded in lieu of, not in addition to, expectation damages. See Lord, supra, § 64:2, at 30-32. If allowed to recover both the lost contract income and reliance damages, the Gooles-bys would be placed in a better economic position than if there had been full performance of the grower contract. This is not the purpose of contract damages, and the trial court was correct in excluding reliance damages from its calculations. See Garrett, 580 So.2d at 1320 (“the injured party is not to be put in a better position by a recovery of damages for the breach than he would have been in if there had been performance”).

Moreover, the jury was instructed that the Goolesbys’ lost income under the grower contract was the appropriate measure of damages. Because the Goolesbys failed to object to that instruction, it became the law of the case. Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 146 (Ala.2006). The Goolesbys thus elected to recover on the basis of their expectation interest, and the trial court did not exceed its discretion by remitting the damages award accordingly.

The trial court correctly limited damages to the Goolesbys’ lost net income under the grower contract, excluding consequential damages and damages based on the Goolesbys’ investment expenditures in reliance on the contract. It therefore did not exceed its discretion by granting Koch Farms’ motion for a remittitur or by ordering a new trial when the Goolesbys refused to accept the remittitur.

B. Prejudgment Interest

Next, the Goolesbys argue that they were entitled to prejudgment interest. Prejudgment interest may be available in a breach-of-contract case, § 8-8-8, Ala.Code 1975, but only if damages were reasonably certain at the time of the breach. Continental Cas. Co. v. Plantation Pipe Line Co., 902 So.2d 36 (Ala.2004).

On appeal, the Goolesbys argue that the amount of their loss was determinable at the time of breach. However, they neither identify that amount nor explain how the parties should have been able to determine it at the time of breach. Moreover, the Goolesbys’ own breach-of-contract counterclaim — which refers to “loss of profits and future damages” — contradicts the argument that the Goolesbys sought to recover a liquidated or certain sum. As a result, the trial court correctly denied the Gooles-bys’ motion for prejudgment interest.

C. The Goolesbys’ Other Counterclaims

The Goolesbys’ third argument is that the trial court erred by entering a judgment as a matter of law for Koch Farms on the Goolesbys’ counterclaims alleging conversion, intentional interference with business relations, and conspiracy to commit conversion and to intentionally interfere with business relations. For the reasons that follow, we disagree.

1. Conversion

Conversion is a wrongful exercise of dominion over the property of another. Ott v. Fox, 362 So.2d 836, 839 (Ala.1978). In this case, it is undisputed that Koch Farms owned the chickens; the Goolesbys claim only a right of possession, not title. “Mere possession of a chattel ... will give a right of action for any interference therewith, except as against the true owner ...§ 6-5-261, Ala.Code 1975 (emphasis added). Koch Farms was the true owner of the chickens. Under the express provisions of § 6-5-261, the Goolesbys could not state a conversion claim and the trial court properly entered a judgment as a matter of law for Koch Farms on that counterclaim.

2. Intentional Interference with Business Relations

The only business relationship at issue in this case is the Goolesbys’ contractual relationship with Koch Farms. As a matter of law, Koch Farms cannot be liable for interfering with its own business relationship. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1154 (Ala.2003)(“Clearly, a party to a contract or a business relationship cannot be liable for tortious interference with that contract or business relationship.”). The Goolesbys argue that they presented evidence indicating that Ted New and Koch Foods, LLC, interfered with their business relationship with Koch Farms. However, the trial court has dismissed those parties from the action, and the Goolesbys did not appeal the dismissal. This issue is therefore moot.

S. Conspiracy

A civil conspiracy cannot exist in the absence of an underlying tort. Avis Rent a Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 (Ala.2003). Because the Goolesbys’ counterclaims of conversion and intentional interference with business relations fail, the same is true of their counterclaim alleging that Koch Farms conspired to commit those torts.

D. The November 20, 2002, Order

The Goolesbys next argue that the trial court erred by admitting as evidence the November 20, 2002, order denying Tony Goolesby’s motion to dissolve the writ of seizure. However, the Goolesbys concede that they were not prejudiced by the admission of the order. Although the Goolesbys speculate that they might be prejudiced if the trial court admits the order during a new trial, that issue is not ripe for review. See Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 341 (Ala.2006).

E. Jury Instruction on Damages for Mental Anguish

The Goolesbys’ final argument is that the trial court erred by instructing the jury that it could not consider “what occurred between the sheriffs deputies and Tony and Buddy Goolesby” in determining whether the Goolesbys were entitled to mental-anguish damages on their breach-of-contract counterclaim; they ask the Court to determine whether the trial court’s instruction was error, but only “if this case is to be remanded for a new trial.” Because the Goolesbys do not argue that the alleged error entitles them to relief from an existing judgment and because it is impossible to predict whether (or under what circumstances) the trial court will give the same instruction at a new trial, this argument asks for an advisory opinion, which the Court declines to issue. See Case v. Alabama State Bar, 939 So.2d 881, 885 (Ala.2006)(it is well established that the Alabama courts do not render purely advisory opinions).

IV. Conclusion

The trial court correctly entered a judgment as a matter of law for Koch Farms on the Goolesbys’ tort counterclaims and was within its discretion to order a remitti-tur of damages as to the Goolesbys’ breach-of-contract counterclaim. Because the Goolesbys refused to accept the reduced award, a new trial on the breach-of-contract counterclaim is proper. The judgment of the trial court is affirmed.

AFFIRMED.

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

PARKER, J., concurs in the result.

      . This case was originally assigned to another Justice on this Court. It was reassigned to Chief Justice Nabers on July 27, 2006.

      . In the trial court, the pleadings named a number of related business entities, most bearing some variant of the name “Koch Farms” or "Koch Foods.” These included “Koch Foods,” "Koch Foods, Inc.,” “Koch Foods, LLC,” “Koch Foods of Alabama, LLC,” “Koch Poultry,” "Koch Meats Co., Inc.,” and "Koch Farms, LLC.” However, as part of its judgment, the trial court dismissed all parties except Koch Farms, LLC, and the Goolesbys have not challenged the dismissal on appeal. As a result, Koch Farms, LLC, is the sole appellee.

      . "San Rosa Farm” is a trade name, not a legal entity; Koch Farms accordingly has abandoned its claims against San Rosa Farm.

      . Buddy Goolesby eventually retained separate counsel and filed his own counterclaim. In all material respects, however, it is identical to the counterclaim filed by the other defendants.

      . The Goolesbys do not challenge the trial court’s decision with respect to their allegations of fraud, economic duress, or abuse of process.

      . It is true that the trial court used a seemingly precise figure to determine the Goolesbys’ loss of income caused by the breach. However, the trial court’s order makes clear that it chose the maximum of a range of values. Specifically, the order states: “The evidence was in conflict as to the economic damages suffered by the Goolesbys but the maximum sum that Koch [Farms] could have owed them under the contract was $110,632.32.” The trial court thus adopted the figure most favorable to the Goolesbys, without attempting a more precise determination of the actual damages.

      . The Goolesbys cite Empiregas, Inc. of Gadsden v. Geary, 431 So.2d 1258 (Ala.1983), for the proposition that an action for conversion will lie against the true owner. However, Empiregas did not address the effect of § 6-5-261, and the plain language of that statute bars a conversion claim against a true owner. Koch Farms does not ask us to overrule Em-piregas, and this Court is reluctant to overrule a prior case when the parties have not asked us to do so.