text:
    Ex parte BAD TOYS HOLDINGS, INC., et al.
    (In re Glenn Crawford and C & G Management, Inc. v. Emergystat of Sulligent, Inc., et al.)
    1051310.
    Supreme Court of Alabama.
    Nov. 22, 2006.

      James H. White, David W. McDowell, and Christopher C. Haug, of Baker, Donel-son, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for petitioners.
    Clatus Junkin of Junkin, Pearson, Harrison & Junnkin, L.L.C., Fayette; and H. Gregory Pearson and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, L.L.C., Tuscaloosa, for respondents.
   NABERS, Chief Justice.

Bad Toys Holdings, Inc. (“BTH”), Southland Health Services, Inc. (“South-land”), Emergystat of Sulligent, Inc. (“Em-ergystat”), and Larry Lunan (collectively referred to as “the petitioners”), the defendants in an action filed in the Lamar Circuit Court by Glenn Crawford and C & G Management, Inc. (collectively referred to as “Crawford”), moved the trial court to dismiss Crawford’s claims against them on the basis of a forum-selection clause that, they allege, provides that Sullivan County, Tennessee, is the exclusive venue for Crawford’s claims. The trial court denied the petitioners’ motion. The petitioners now seek mandamus relief from this Court. We grant their petition and issue the writ.

I.

BTH is a Tennessee-based corporation that serves as a holding company for several businesses. Emergystat is a company that provides ambulance services; it is based in Vernon, Alabama. In 2004, BTH’s chief executive officer, Larry Lu-nan, entered into negotiations with Glenn Crawford, president and majority shareholder of Emergystat, for BTH to purchase Emergystat. While those negotiations were ongoing, Emergystat expanded its operations into Tennessee and Virginia by purchasing the assets of other companies providing ambulance services. A new company, Southland, was formed to own and operate the combined entities. In December 2004, BTH signed a letter of intent to purchase Southland once all the companies were combined into it.

On February 2, 2005, BTH signed a contract to purchase the majority interest in Southland; BTH was to pay for its interest with cash and BTH stock. Paragraph 9.6 of the contract stated:

“9.6 Application of Tennessee Law; Venue: This Agreement, and the application or interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of Tennessee. Venue for any legal action which may be brought hereunder shall be deemed to lie in Sullivan County, Tennessee.”

The contract was amended on February 4, 2005. Both the contract and the amendment (collectively referred to as “the purchase agreement”) were signed by Glenn Crawford.

BTH alleges that after the purchase transaction closed it discovered that South-land’s financial condition had been severely misrepresented and that multiple liabilities of Southland had not been disclosed. On December 12, 2005, BTH sued Crawford and the other parties to the purchase agreement in Sullivan County, Tennessee.

On December 30, 2005, Crawford responded by suing the petitioners in the Lamar Circuit Court, alleging conversion, detinue and replevin, fraud and misrepresentation, deceit, civil conspiracy, negligence and wantonness, negligent supervision and training, the tort of outrage, and default on a promissory note that was allegedly separate and distinct from the purchase agreement. The gravamen of the complaint was that BTH had not transferred stock, warrants, and other consideration allegedly due under the purchase agreement. Crawford framed all of his claims, including the default claim, as tort claims, though they arise out of a contractual relationship.

On February 9, 2006, the petitioners moved the Lamar Circuit Court to dismiss counts 6 through 14 of Crawford’s complaint, i.e., the claims against them, on the basis of the forum-selection clause in paragraph 9.6 of the purchase agreement. On May 4, 2006, the Lamar Circuit Court denied the petitioners’ motion, holding that “the forum selection clause is permissive and non-exclusive and does not encompass the claims in the present action.” On June 14, 2006, the petitioners timely petitioned this Court for a writ of mandamus directing the trial court to vacate its May 4, 2006, order and to grant their motion to dismiss.

II.

“ ‘[A] petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an “outbound” forum-selection clause when it is presented in a motion to dismiss.’ Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001); see Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). ‘[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.’ Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001). ‘[T]he review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.’ Ex parte D.M. White Constr. Co., 806 So.2d at 372.”

Ex parte Leasecomm Corp., 886 So.2d 58, 62 (Ala.2003). Thus, we review the trial court’s May 4, 2006, order to determine whether the trial court exceeded its discretion in concluding that the forum-selection clause in the purchase agreement (1) is “permissive and non-exclusive” and (2) “does not encompass the claims” in Crawford’s action.

III.

As a preliminary matter, we note that the validity of the outbound forum-selection clause in this case is not at issue; the validity of such clauses is well established in Alabama law. Professional Ins. Corp. v. Sutherland, 700 So.2d 347 (Ala.1997). A forum-selection clause is presumed to be valid “unless the party .challenging the clause clearly establishes that it would be unfair or unreasonable under the circumstances to hold the parties to their bargain.” Ex parte CTB, Inc., 782 So.2d 188, 190-91 (Ala.2000). Crawford has not argued, and the trial court did not hold, that the forum-selection clause in the purchase agreement was unfair or unreasonable. Rather, the trial court held that the clause was “permissive,” “non-exclusive,” and inapplicable to Crawford’s claims. We address those findings in turn.

The forum-selection clause in the purchase agreement provides that “[v]enue for any legal action which may be brought hereunder shall be deemed to lie in Sullivan County, Tennessee” (emphasis added). The petitioners argue that the use of the word “shall” in the forum-selection clause makes the clause mandatory, not permissive. This Court has considered the import of the word “shall” previously and stated:

“The word ‘shall’ is clear and unambiguous and is imperative and mandatory. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa, [589 So.2d 687 (Ala.1991)]; Taylor v. Cox, 710 So.2d 406 (Ala.1998); Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998) (on application for rehearing) (interpreting the word ‘shall’ as used in § 6-3-21.1). The word ‘shall’ has been defined as follows:
“ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.’
“Black’s Law Dictionary 1375 (6th ed.1991).”

Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998).

Crawford nonetheless notes that this Court has also stated that the word “ ‘shall’ may also be construed as being permissive where the intent of the legislature would be defeated by making the language mandatory.” Ex parte Brasher, 555 So.2d 192, 194 (Ala.1989). However, the principle espoused in Ex parte Brasher was applied in interpreting a statute, not a contract. In the present case, nothing in the purchase agreement indicates that the parties intended that the word “shall” mean anything other than what it ordinarily means. “[Shall] in ordinary usage means ‘must’ and is inconsistent with a concept of discretion.” Black’s Law Dictionary 1375 (6th ed.1991).

We also note that BTH has its principal place of business in Sullivan County, Tennessee, and on that basis alone Sullivan County would be an appropriate venue for any action related to the purchase agreement — regardless of whether the purchase agreement contained a forum-selection clause stating that venue was proper in Sullivan County. See Tenn. Code. Ann., § 20-4-101(a) (West 1994) (“In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found.”). Thus, if this Court were to accept Crawford’s argument and construe the forum-selection clause as permissive only, we would in essence eviscerate the clause of any meaning whatsoever, contrary to the principle that “this Court is bound to construe contracts so as to give meaning to all provisions whenever possible.” Board of Water & Sewer Comm’rs of Mobile v. Bill Harbert Constr. Co., 870 So.2d 699, 710 (Ala.2003). That the parties intended to do something more than merely agree that venue was proper in Sullivan County is further evidenced by Crawford’s artful attempt to avoid the forum-selection clause by sounding his claims in tort rather than in contract.

For these reasons, we hold that the forum-selection clause in the purchase agreement mandates that venue for any legal action brought pursuant to the purchase agreement lies in Sullivan County, Tennessee.

IV.

Having determined that the forum-selection clause in the purchase agreement is mandatory, we must now determine whether it encompasses the claims made by Crawford against the petitioners. The trial court determined that the forum-selection clause did not govern Crawford’s claims, presumably because he had framed those claims as tort claims, as opposed to contract claims, and the claims were not, therefore, “brought ... under [the purchase agreement].” The petitioners argue that even though Crawford’s claims sound in tort, they are intertwined with the purchase agreement, and, in fact, they all arise out of it. Therefore, they argue, the claims are encompassed by the forum-selection clause, which, by its language, applies to “any legal action which may be brought hereunder.” The petitioners further note that this Court has, in the past, enforced forum-selection clauses so as to require the dismissal of complaints asserting both contract and tort claims. See Ex parte Rymer, 860 So.2d 339 (Ala.2003); Ex parte D.M. White Constr. Co., 806 So.2d 370 (Ala.2001); and Ex parte O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844 (Ala.1999).

Crawford argues that by its language the forum-selection clause is limited to contractual claims. He seeks to distinguish the cases cited by the petitioners by noting that the plaintiffs in each of those cases asserted breach-of-contract claims as well as tort claims, while his claims against the petitioners are, he says, strictly tort claims and he alleges no breach of contract.

We agree with the petitioners that Crawford’s claims are “brought under” the purchase agreement. Although this Court has not specifically addressed whether a forum-selection clause such as the one in this case might apply to tort claims related to the contract, authority in other jurisdictions holds that they do. In Picken v. Minuteman Press International, Inc., 854 F.Supp. 909, 911 (N.D.Ga.1993), the United States District Court for the Northern District of Georgia considered a forum-selection clause similar to the one here and stated that “Heading the word ‘hereunder’ to apply only to a pure breach of contract claim between the parties would be unduly crabbed and narrow. ‘Hereunder’ refers to the relations that have arisen as a result of this contract.” Other courts interpreting the word “hereunder” have reached similar conclusions. See Banco Popular de Puerto Rico v. Airborne Group PLC, 882 F.Supp. 1212 (D.P.R.1995); and Warnaco Inc. v. VF Corp., 844 F.Supp. 940 (S.D.N.Y.1994).

Although Crawford frames his claims as sounding in tort, it is clear that all of the claims relate to BTH’s alleged failure to transmit to Glenn Crawford consideration he is allegedly due under the purchase agreement. In count 6, Crawford alleges that the petitioners converted stock and warrants for stock options. In count 7, Crawford seeks to recover chattel property (stock and stock options) held by the petitioners. In count 8, Crawford alleges that the petitioners fraudulently misrepresented that they would deliver stock certificates and warrants to Glenn Crawford. In count 9, Crawford alleges deceit pursuant to § 6-5-104, Ala.Code 1975, based on the petitioners’ alleged misrepresentation that they would deliver stock and warrants to Glenn Crawford. In count 10, Crawford alleges that the petitioners conspired to convert stock and warrants that rightfully belonged to Glenn Crawford. In count 11, Crawford alleges that the petitioners negligently or wantonly allowed the stock and warrants due Glenn Crawford to not be delivered. In count 12, Crawford alleges that the petitioners negligently supervised and trained their employees so that those employees did not deliver to Glenn Crawford the stock and warrants he was due. In count 13, Crawford alleges that the petitioners’ actions' — essentially breach of contract — constitute the tort of outrage. Finally, in count 14, Crawford alleges default on a promissory note; that note was executed in conjunction with the purchase agreement.

Although Crawford has taken great care to avoid any mention of the purchase agreement in his complaint, he has offered no other basis for his claim to the stock, warrants, and money that he seeks to recover. Rather, all of the facts before both the trial court and this Court indicate that Crawford’s only claim to the damages he seeks is vis-a-vis the purchase agreement that obligated BTH to transmit certain consideration to him. BTH has directly stated as much, and Crawford has not disputed it, implicitly or explicitly. Certainly, Crawford has set forth no facts alleging tortious misconduct on the part of BTH that is unrelated to the purchase agreement. To the contrary, Crawford’s own statement of facts, when viewed in light of the original February 2, 2005, contract and the February 4, 2005, amendment, makes clear that his claims are based on the purchase agreement:

“[I]n February 2005, the defendants likewise wrongfully detained and converted stock certificates and warrants for stock in the defendant Bad Toys belonging to the plaintiff [Glenn] Crawford. The defendant Lunan represented to [Glenn] Crawford that if [Glenn] Crawford would forward [Glenn] Crawford’s shares of Southland stock, the defendants would deliver to [Glenn] Crawford certificates of stock in Bad Toys. [Glenn] Crawford performed as agreed, but the defendants failed and refused to deliver said certificates and warrants as promised and agreed, instead converting the certificates and warrants to their own dominion and use.”

Although Crawford has carefully avoided making any reference to the purchase agreement, he is essentially seeking the same relief that would flow from a breach-of-contract claim. “Strategic or artfully drawn pleadings ... will not work to circumvent an otherwise applicable forum selection clause.” Terra Int'l Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th Cir.1997). Therefore, because Crawford’s claims stem from the purchase agreement, they are subject to the forum-selection clause contained in that agreement and should accordingly be dismissed without prejudice.

V.

Two lawsuits have resulted from this controversy: one in the forum specified by the purchase agreement and a later filed action in Alabama. Certainly, the intent of the forum-selection clause was that controversies arising under the purchase agreement would be settled in a single forum, i.e., Sullivan County, Tennessee. Our decision today reflects that intent, as well as this Court’s policy of promoting judicial economy. See Ex parte Soprema, Inc., 949 So.2d 907, 915 (Ala.2006) (stating that the policy of judicial economy disfavors two actions involving similar claims being tried in different courts).

The trial court denied the petitioners’ motion to enforce the forum-selection clause in the purchase agreement between BTH and Crawford because, the trial court held, the clause was permissive and nonexclusive and did not encompass Crawford’s claims, which the trial court apparently believed sounded in tort. For the reasons set forth above, we hold that the trial court exceeded its discretion in reaching that conclusion. The trial court is directed to vacate its May 4, 2006, order denying the petitioners’ motion to dismiss and to enter an order granting that motion and dismissing counts 6 through 14 of Crawford’s complaint.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL, J., concurs in the result.

      . The purchase agreement also encompassed the purchase by BTH of the interests of two other individuals in Southland. However, those individuals are not parties to this ac-

      . Counts one through five of the complaint assert claims against parties other than the petitioners.

      . Our conclusion that the forum-selection clause in the purchase agreement is mandatory, as opposed to permissive, is consistent with the approach of other jurisdictions that have considered similar clauses. In K & V Scientific Co. v. Bayerische Motoren Werke Aktiengesellschaft, 314 F.3d 494, 496 (10th Cir.2002), the United States Court of Appeals for the Tenth Circuit held that a provision stating that "[j]urisdiction for all and any disputes arising out of or in connection with this agreement is Munich” was permissive. In reaching that conclusion, the court reviewed the state of the law on the issue:

        "[C]ase law from other circuits involving forum selection clauses similar to the one at issue here is surprisingly uniform. Generally speaking, the circuits that have addressed the issue are in agreement that where venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive. Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir.1992); see John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imp. & Distrib. Inc., 22 F.3d 51, 52 (2d Cir. 1994) (same); Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 764 (9th Cir. 1989) (same); Citro Florida[, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir.1985)] (concluding that language of forum selection clause discussing jurisdiction in nonexclusive language reasonably could be construed as permissive); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 957 (5th Cir.1974) (same).”
      314 F.3d at 499.
      This Court has likewise recognized the distinction between jurisdiction and venue. Pepperell Mfg. Co. v. Alabama Nat’l Bank of Montgomery, 261 Ala. 665, 667, 75 So.2d 665, 667 (1954). Subject-matter jurisdiction concerns "the power lawfully conferred on a court to entertain a suit or proceeding, consider the merits, and render a binding decision thereon.” Id. Moreover, "the subject-matter jurisdiction of Alabama courts is conferred only by the provisions of the Alabama Constitution and statute.” O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844, 848-49 (Ala.1999) (See, J., dissenting). Venue, on the other hand, is based primarily on convenience to the parties. Pepperell, 261 Ala. at 667, 75 So.2d at 667. It is generally not a condition precedent to the exercise of a court’s power but relates instead to the appropriateness of the location of the action. Importantly, although venue may sometimes be appropriate in multiple forums, parties may, via a forum-selection clause, contract in advance to restrict venue to a single forum. However, " '[s]ubject matter jurisdiction can neither be conferred by agreement nor can it be waived.’ ” O’Brien Eng’g Co., 738 So.2d at 849 (See, J., dissenting) (quoting International Longshoremen's Ass’n v. Davis, 470 So.2d 1215, 1216 (Ala.1985)).

      . This Court has previously considered a similar issue, albeit in the context of an arbitration provision. In SCI Alabama Funeral Services, Inc. v. Lanyon, 896 So.2d 495 (Ala.2004), Wilbert Lanyon sued SCI Alabama, a funeral-services provider, after his son’s body began to decompose before burial because of problems with the embalming process. The contract authorizing SCI Alabama to embalm the body contained an arbitration provision stating that "[y]ou agree that any claim you may have relating to the transaction contemplated by this agreement ... shall be submitted to and finally resolved by mandatory and binding arbitration....” 896 So.2d at 497. Lanyon sought to avoid the arbitration provision by casting his complaint in tort, as opposed to contract; however, this Court rejected his attempt to so cast his complaint, stating:
      "In his complaint, Lanyon did not allege breach of contract; instead, his complaint alleges various torts. However, this Court has repeatedly stated ' " ‘that a party may not avoid broad language in an arbitration clause by attempting to cast its complaint in tort rather than contract.’ ” ' ECS, Inc. v. Goff Group, 880 So.2d 1140, 1147 (Ala.2003) (quoting Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999), quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)).
      "In the present case, Lanyon has alleged negligence, wantonness, and the tort of outrage — all tort claims; however, those claims arise out of SCI's allegedly defective embalming of [the son's] body. The embalming procedure was not only anticipated in the Purchase Agreement, it was specifically provided for. Therefore, all of La-nyon’s claims arise out of the Purchase Agreement.”
      896 So.2d at 498. Accordingly, this Court held that Lanyon was required to submit his claims against SCI Alabama to arbitration.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte Travis HEAD (In re Travis Head v. Tom F. Young, Jr., circuit judge for the Fifth Judicial Circuit; Howard F. Bryan IV, presiding judge for the Fifth Judicial Circuit; and E. Paul Jones, district attorney for the Fifth Judicial Circuit).
    1050977.
    Supreme Court of Alabama.
    Nov. 22, 2006.

      Donald R. Hamlin, Pell City, for petitioner.
    Troy King, atty. gen., and Andy Scott Poole and Jack W. Willis, asst, attys. gen., for respondents.
   SEE, Justice.

Travis Head petitions this Court for the writ of mandamus directing Tom F. Young, Jr., the circuit judge who presided over Head’s criminal trial, or, in the alternative, Howard F. Bryan IV, the presiding judge of the Fifth Judicial Circuit, to enter an order barring a second trial on the ground of double jeopardy. Because Head has failed to demonstrate a clear legal right to the relief he seeks, we deny the petition.

I. Factual and Procedural Background

Travis Head was tried in the Randolph Circuit Court for the double murder of his father and stepmother. Head pleaded not guilty by reason of mental disease or defect. Based on this defense and because of his status as an indigent, the trial court granted Head’s request for money to retain the services of a licensed psychologist as an expert witness. Head admitted during the trial that he had killed his father and stepmother after they had refused to let him go out with his friends. He claimed that his natural mother had let him have alcohol at an early age, that he had begun to abuse alcohol, and that he was drunk on the night of the killings. He testified that he had originally planned to kill himself but that he instead shot his father and stepmother with a pistol.

Head secured the services of Dr. Robert Summerlin, who testified as an expert witness. On direct examination, Dr. Sum-merlin testified that Head suffered from post-traumatic stress syndrome occasioned by years of abuse from his parents and his stepparents, including two instances of rape by his father. On cross-examination, Dr. Summerlin admitted that he was unable to diagnose Head’s post-traumatic stress syndrome until after Head’s court-appointed attorneys provided him with summaries of the testimony of other witnesses and of acquaintances of Head. These 30 witness summaries had been supplied to Dr. Summerlin by the defense; they had not been produced to the State. On cross-examination, the State requested permission to inspect these witness summaries, arguing that Dr. Summerlin had based his diagnosis of post-traumatic stress syndrome on them. Over the objection of Head’s attorneys, the trial court ordered the defense to produce the summaries.

The summaries contained not only summaries of witness testimony, but also notations pointing out inconsistencies between and among the various statements and recommending the need for reconciliation among the statements. These notations also revealed certain trial strategy, including speculation regarding the manner in which the State would impeach a defense witness. On cross-examination that continued after the State had examined the summaries, the State asked Dr. Summerlin whether “there was in a witness summary of Steven Duncan[] a note how Travis [Head] and Steven [Duncan] should get together to work this story out,” and the State asked Dr. Summerlin to read the note to the jury. Head’s attorney objeet-ed, and the trial judge sent the jury out of the courtroom. Head’s attorney argued that the summaries that contained these comments had been inadvertently sent to Dr. Summerlin. The judge expressed his concern, saying, “I can’t give you protection on this and then give you the benefit of his diagnosis based on these documents that you gave him to work off of.” The court then conducted a hearing to determine whether a “manifest necessity” existed to declare a mistrial.

At the hearing, the trial judge first expressed his concern that providing these summaries, which contained notations by Head’s attorneys, to Dr. Summerlin and the subsequent production of the summaries to the State would significantly impact the appellate and postconviction process. The judge asked Head: “Are you waiving any effect that those notes might have as to your future defense during this trial and any future Rule 32[, Ala. R.App. P.,] petitions which would address itself to ineffective assistance to counsel as far as the appeal as to that issue only?” The judge also asked Head whether he was willing to waive the attorney-client privilege as to the information contained in the notes. Head stated that he waived his rights as to “those papers.” The court then provided Head with the opportunity to consult an attorney who was not involved in his criminal defense, stating: “The Court wants to be sure that your rights are protected. And as importantly that this trial can go on and provide you with a fair hearing.” This independent attorney recommended that Head not let the trial continue in light of the fact that his expert witness, and hence his sole defense, would be severely impeached; however, Head maintained his willingness to waive any error by his attorneys in providing the summaries to Dr. Summerlin.

The State moved for a mistrial, arguing that “this thing has gotten to be such a mess there is no way it can be corrected during the course of this trial. If he has a valid defense of not guilty by reason of insanity, it has been blown out of the water by what has happened in this trial. He’s entitled to a valid defense. He cannot get it in this trial on that basis.” Further, the State argued that any waiver Head had made would not stand up on appeal and that continuing the trial would be “an exercise in futility.” The State’s concern was that an appellate court “might determine that [Head’s] rights have been so compromised that he can never get a fair trial,” implying that the defense wanted to go forward with the trial of the case because the defense did not think that a conviction would stand up on appeal.

Head opposed the motion for a mistrial, offering as a possible alternative a continuance to allow Head to retain a new expert witness. However, the prosecutor claimed that any delay would result in scheduling conflicts for the State. Further, the trial judge expressed his concern that if he granted a continuance jurors would begin to forget information learned during the trial and that during the period of the continuance they would be exposed to information in the media concerning the case. Head argued that the judge could give a jury instruction to cure those problems.

The trial court’s chief concern was the effect these notes would have on the jury; even though the judge made it clear that he was not questioning the integrity of the attorneys, he recognized that the notes might create the appearance of collusion between witnesses and the inference of manipulation by defense counsel. Explaining that he believed that the defense’s case had been jeopardized, the trial judge concluded: “I find that the circumstances surrounding this have reached a level of manifest necessity. I’m declaring a mistrial.” In doing so, he stated: “I am not making this decision based on having to try it again or based on what somebody in Montgomery may do.... I just think it would be very difficult for Mr. Head to get a fair trial under the circumstances.... ”

After the trial judge declared a mistrial, Head filed a motion to dismiss the charges against him, arguing that jeopardy had attached so that he could not be retried on these charges. The trial court held a hearing on Head’s motion to dismiss. The court denied the motion because the mistrial had been declared upon a finding of manifest necessity and a finding that going forward with the trial of the criminal charges would prejudice both the State and the defense. Head then filed a petition for a writ of mandamus in the Court of Criminal Appeals. That court denied the petition by an unpublished order, holding that Head had invited the error by failing to comply with the trial court’s discovery order and by furnishing his expert witness with the summaries containing defense counsel’s strategic comments. The Court of Criminal Appeals held that because the error had been invited error, Head was estopped from asserting a claim of former jeopardy.

Head has now petitioned this Court for the writ of mandamus. He argues that the trial court erred in denying his motion to dismiss based on double-jeopardy grounds because, he argues, the mistrial was not precipitated by manifest necessity. Further, Head contends that neither the Alabama Rules of Evidence nor the trial court’s pretrial discovery order required the defense to produce the underlying facts Dr. Summerlin relied upon in formulating his diagnosis. Finally, he argues that it was not error to provide his expert witness with the synopses containing defense counsel’s trial strategy.

II. Standard of Review

A defendant’s double-jeopardy claim is properly reviewed by a petition for the writ of mandamus. Ex parte Benford, 935 So.2d 421, 425 (Ala.2006). This Court has held that an accused’s constitutional rights against being twice placed in jeopardy cannot be adequately protected by appellate review and that the writ of mandamus is appropriate in a case in which the petitioner argues that former jeopardy bars a retrial on the charges against him. Ex parte Roberts, 662 So.2d 229, 231 (Ala.1995). In order for this Court to issue the writ of mandamus, Head must show

“ ‘ “(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 Bloodsaw, 648 So.2d 553, 554 (Ala.1994) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).”

Ex parte Benford, 935 So.2d at 425. We note, however, that the “writ of mandamus is a drastic and extraordinary remedy.” Ex parte Roberts, 662 So.2d at 231.

III. Analysis

The ultimate issue in this case is whether the trial court’s finding that the State and the defense would be prejudiced if the trial were to continue and that a mistrial was in the best interest of the accused sufficiently supports a finding of manifest necessity allowing the State to retry Head.

“The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense.” United States v. Din itz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (footnote omitted). The Fifth Amendment provides: “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.... ” U.S. Const, amend. V. See also Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (“A State may not put a defendant in jeopardy twice for the same offense.”). The underlying policy of this constitutional principle is that

“the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

Although the Double Jeopardy Clause affords this protection, it “does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding.” Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). “If the law were otherwise, ‘the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.’ ” Id. (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)).

Where, as here, a mistrial has been declared over the defendant’s objection, the defendant’s “valued right to have his trial completed by a particular tribunal” is also implicated. Wade, 336 U.S. at 689, 69 S.Ct. 834. When a trial is terminated over the defendant’s objection, the State may proceed with a retrial only after showing that the initial proceeding was aborted because of a “manifest necessity.” Kennedy, 456 U.S. at 672, 102 S.Ct. 2083; Ex parte Sullivan, 779 So.2d 1157, 1162 (Ala.2000). As the Supreme Court of the United States has noted: “The ‘manifest necessity’ standard provides sufficient protection to the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining ‘the public’s interest in fair trials designed to end in just judgments.’ ” Kennedy, 456 U.S. at 672, 102 S.Ct. 2083 (quoting Wade, 336 U.S. at 689, 69 S.Ct. 834). However, the Supreme Court has held that a “high degree” of necessity is required before a mistrial is appropriate. Washington, 434 U.S. at 506, 98 S.Ct. 824.

“The concept of ‘manifest necessity’ does not lend itself to rigid application, and requires a due regard for the facts and circumstances of each case.” Huss v. Graves, 252 F.3d 952, 955 (8th Cir.2001) (citing Washington, 434 U.S. at 506, 98 S.Ct. 824). In this case-by-case inquiry, a reviewing court may consider whether the trial court acted in the defendant’s best interests. See Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) (“Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial.”). Another relevant consideration is whether alternatives to a mistrial were explored. See United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (noting the trial court’s failure to consider a continuance as an alternative to mistrial); Ex parte Tribble, 783 So.2d 69, 72 (Ala.2000) (“[A] mistrial should be granted only as a last resort ‘where it is apparent that justice cannot be afforded’ otherwise.”). Further, the reviewing court will consider whether the defendant has been given an opportunity to explain his position on the declaration of a mistrial. Huss, 252 F.3d at 955 (citing Washington, 434 U.S. at 515-16, 98 S.Ct. 824). A final consideration is whether the declaration of a mistrial denied the defendant the right to “retain primary control of the course to be followed” in the event of an error at trial. Dinitz, 424 U.S. at 609, 96 S.Ct. 1075.

The trial court thus must take “all circumstances into account” in deciding whether a manifest necessity for declaring a mistrial exists. Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (citing Wade, 336 U.S. at 691, 69 S.Ct. 834). The trial court has broad discretion in deciding whether to declare a mistrial. Somerville, 410 U.S. at 462, 93 S.Ct. 1066.

“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.”

Gori, 367 U.S. at 368, 81 S.Ct. 1523.

In the case before us, jeopardy attached when the jury was empaneled and sworn. Ex parte Sullivan, 779 So.2d at 1161. The trial judge, during the hearing on whether to declare a mistrial, originally stated that a manifest necessity existed to dismiss the jury based on the concern that Head would be unable to receive a fair determination of guilt or innocence if the trial proceeded. The trial judge believed that the State’s cross-examination of Dr. Summerlin, Head’s expert witness, concerning the presence of the trial strategies of Head’s attorneys and notes concerning witnesses in the witness summaries on which Dr. Summerlin had based his diagnosis of Head would destroy Head’s chances of an acquittal. This expert witness was key to Head’s mental-disease-or-defect defense, and the fact that Dr. Summerlin made his diagnosis only after examining these summaries suggested that the summaries had a controlling influence on his opinion.

The court further found that going forward with the trial would prejudice the State because Dr. Summerlin had used witness summaries that included the attorneys’ thought processes when he testified. The trial judge stated, somewhat obliquely: “There was prejudice to the State, because that was your whole defense.” The State, however, contends that “[its] interests were, in fact, frustrated by the errors of the defense.” State’s brief at 22. Not only did the State have an interest in ensuring a fair trial, but it also argued that continuing the trial would be futile and that a guilty verdict, if one were entered, would never survive an appeal.

Head argues in his petition to this Court, without citing any authority, that “[t]he granting of a mistrial as an expedient measure to avoid the possibility of a case being remanded on appeal is not manifest necessity.” Head’s petition at 15. However, the Supreme Court of the United States has made clear that “[i]f an error would make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the [State] proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.” Somerville, 410 U.S. at 464, 93 S.Ct. 1066.

The trial court also considered the prejudice to Head if the case were allowed to go forward. The record supports the trial court’s conclusion that further cross-examination of Dr. Summerlin would deprive Head of his only defense to the murder charges. Head had already testified that he shot his father and stepmother, and the trial court found that “[s]hort of the finding of posttraumatic stress, [Head] had no defense.” Head had explained on the stand the abuse he had suffered, but without the psychiatrist’s testimony he lacked any evidence connecting past traumatic events in his life to a legal defense for murder.

Also, the trial judge was concerned that Head was being overly influenced by his attorneys in this matter, because he was offering to waive his postconviction and appellate remedies for what appeared to the court to be a valid claim of ineffective assistance of counsel. The fact that Head wanted to go forward suggested to the court that Head did not understand his best interests and that his attorneys were not looking after Head’s best interests, especially considering that an independent criminal attorney advised Head that the cross-examination of his sole expert witness would be “catastrophic to the defense.”

We note that the trial court considered other alternatives to declaring a mistrial. Head’s attorneys argued that the court should grant a continuance to allow the defense to retain a new expert witness. However, the jury had already heard that Dr. Summerlin had relied on the written summaries to form his diagnosis of Head, as well as the fact that the summaries contained at least one statement indicating that the testimony of various witnesses had to be reconciled. The appearance of collusion may already have been created. Also, .the State argued that a delay of three weeks or a month to allow Head to secure a new expert witness not only would result in jurors’ forgetting much of what they had heard as testimony in the case, but also could result in outside information tainting the jurors’ perception of the case. The State also argued that any delay would create scheduling difficulties.

The trial judge also heard the defense’s perspective on a mistrial. Although the trial judge recognized that Head was willing to waive any claim of prejudice and to continue the trial, he doubted that such a waiver would stand up on appeal. Further, the trial judge had concerns that Head’s willingness to waive any errors may have been the result of the influence of his attorneys, who wanted to see the case through to the jury. The independent attorney Head had consulted told Head that his case would be devastated by going forward with Dr. Summerlin as the expert, but Head insisted on going forward.

Finally, we examine the extent to which the defendant has lost primary control of the course to be followed in his trial. We recognize that Head’s interests here are weighty. “A defendant has an important interest in ‘concluding] his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’ ” Huss, 252 F.3d at 955-56 (quoting Jorn, 400 U.S. at 486, 91 S.Ct. 547). We also recognize that the prohibition of a retrial prevents the government from “gain [ing] an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own.” United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

In this case, the State now has an insight into the defense strategy for the trial of the case. This fact is ameliorated, first, because, on retrial, Head will have the opportunity to retain a new expert witness. The summaries will thus not have the same cross-examination value. Also, the extent that any attorney-client confidences have been revealed is not clear. For instance, in arguing against a mistrial, Head’s attorneys suggested that some of the attorney work product contained in the summaries was already reflected in the record. Further, Head’s attorneys may have waived the attorney-client privilege on Head’s behalf in turning the summaries over to the expert. In any event, there are options to protect Head from prejudice in any retrial as a result of the State’s having obtained notes containing his attorneys’ trial strategy and concerns. The trial court, for instance, had already ordered the witness summaries sealed so long as Head did not attempt to rely on Dr. Summerlin as his expert witness in the subsequent trial.

Thus, although we recognize that Head has an interest in continuing his trial before “a tribunal he might believe to be favorably disposed to his fate,” Jorn, 400 U.S. at 486, 91 S.Ct. 547, that does not mean that his interest “may never be forced to yield, as in this case, to ‘the public’s interest in fair trials designed to end in just judgments.’ ” Somerville, 410 U.S. at 469-70, 93 S.Ct. 1066 (quoting Jorn, 400 U.S. at 480, 91 S.Ct. 547). We do not believe that Head’s interest in continuing the original proceeding outweighs the societal interest in fair trials and the court system’s interest in judicial economy. See United States v. Elliot, 463 F.3d 858, 868 (9th Cir.2006) (“In order to preserve Elliot’s right to conflict-free representation, to save valuable time and resources of the court and the jurors, and to serve the ends of public justice, the district court was justified in declaring a mistrial.”).

Given the discretion vested in a trial court in deciding whether to declare a mistrial, we conclude that there was a manifest necessity justifying a mistrial in this case, such that “the ends of public justice would ... be defeated” if the trial were to proceed. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). Because Head has failed to demonstrate the existence of a clear legal right to the writ of mandamus, we deny the petition.

IV. Conclusion

We conclude that the trial court did not exceed its discretion in finding that a manifest necessity required the declaration of a mistrial. Head has thus failed to demonstrate a clear legal right to an order barring the State from instituting a second proceeding. We, therefore, deny the petition.

PETITION DENIED.

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

      . Duncan was one of Head’s acquaintances.

      . Head also argues that the Court of Criminal Appeals erred in finding that he had invited the error that precipitated the mistrial and was thus estopped from asserting his Fifth Amendment rights. Because we hold that the trial court did not exceed its discretion in declaring a mistrial, we need not address this argument.


author: STUART, Justice. SEE, Justice

text:
    Ex parte Phillip E. HORNSBY (In re Phillip E. Hornsby v. Charles Elkins).
    1051075.
    Supreme Court of Alabama.
    Nov. 22, 2006.

      Raymond L. Jackson, Jr., and Scott R. Crouse of Jackson Law Group, P.C., Auburn, for petitioner.
    William J. Benton, Jr., and W. Brian Benton of Benton & Benton, Phenix City, for respondent.
   STUART, Justice.

WRIT QUASHED. NO OPINION.

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

SEE and LYONS, JJ., dissent.

SEE, Justice

(dissenting).

The record in this case supports the trial court’s finding that any business assets that originally belonged to Bank Repo Center, a sole proprietorship by whom Charles Elkins was employed, should be available to satisfy Elkins’s domesticated Georgia judgment awarding Elkins workers’ compensation benefits. However, I do not agree with the trial court’s holding that Phillip E. Hornsby’s personal assets are subject to execution in satisfaction of the Georgia judgment. For Phillip Horns-by’s personal assets to be subject to the satisfaction of the Georgia judgment, the trial court must either have pierced the corporate veil of Phil’s Motor Service, Inc., or inferred that a partnership existed between Mack Hornsby and Phillip Hornsby at the time the judgment was entered. I do not believe that the record supports either conclusion. For this reason, I respectfully dissent from the order quashing the writ of certiorari.

Bank Repo Center is a now defunct Georgia unincorporated business entity owned by Mack Hornsby. Elkins filed a workers’ compensation claim in Georgia against “Bank Repo Center and/or H & H Mobile Home Service.” On October 5, 1999, an administrative law judge entered an order in favor of Elkins. On November 1,1999, Phillip Hornsby reserved the name “Phil’s Motor Service” with the Alabama Secretary of State, and he filed articles of incorporation on December 10, 1999. After the Georgia State Board on Workers’ Compensation upheld Elkins’s award, he filed and received a judgment in the amount of $45,801.40 in the Superior Court of Muskogee County, Georgia, against “Bank Repo Center d/b/a Mobile Home Service.” Elkins then moved to domesticate his judgment in Alabama in the Russell Circuit Court, because he believed the entity’s assets had been moved to Alabama. The first time Elkins ever indicated that “Phil’s Motor Service d/b/a/ Bank Repo Center” was a defendant in the action was on October 10, 2002, in a letter purporting to correct that defendant’s address. On May 5, 2004, the trial court issued the writ of execution against “Phillip E. Hornsby and/or Bank Repo Center.” The trial court denied Phillip Hornsby’s motion to quash the writ, and Phillip Hornsby appealed to the Court of Civil Appeals, which affirmed the trial court’s judgment without an opinion. Hornsby v. Elkins (No. 2031141, Dec. 9, 2005), — So.2d — (Ala.Civ.App.2005) (table). Phillip Hornsby then petitioned this Court for the writ of certiorari.

In his brief to this Court and before the trial court, Elkins did not provide any theory of liability that would justify the trial court’s reaching Phillip Hornsby’s personal assets to satisfy Elkins’s workers’ compensation award. First, it does not appear that Elkins ever argued to the trial court either that the corporate veil of Phil’s Motor Service should be pierced or that Bank Repo Center was actually a partnership comprising Mack Hornsby and Phillip Hornsby. The only suggestion of any such argument appears on pages 29 and 30 of the trial transcript, where counsel for Elkins suggests that the attorney for Bank Repo Center also represented Phillip Hornsby and thus that the two were “one in the same.” Even there, however, it is not clear whether counsel is referring to Phillip Hornsby in his individual capacity or in his capacity as president of Phil’s Motor Service, but, if he is referring to Phillip Hornsby in his individual capacity, the fact that two entities use the same attorney, even to the extent of using the same attorney in the same litigation, has never meant that they are the same business and are responsible for one another’s debts. See Ministry of Defense of Iran v. Gould, Inc., 969 F.2d 764, 769 (9th Cir.1992) (affirming trial court’s decision not to pierce the corporate veil when corporation and subsidiary were represented by the same attorneys); Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 538, 538 (5th Cir.1990) (“[T]he fact that two corporations retain the same attorney is hardly any basis for disregarding their corporate entities, and it is certainly not adequate to overcome the defendants’ legitimate interest in avoiding the piercing of the corporate veil and the imposition of liability for one another’s acts.”); EEOC v. Custom Cos. (Nos. 02 C 3768 & 03 C 2293, Oct. 26, 2006) (N.D.Ill.2006) (not published in F.Supp.2d) (refusing to pierce the corporate veil because, “[although [the plaintiffs] may have employed the same outside attorney, that does not suffice to show neglect of corporate formalities”); and McCurdy v. Wedgewood Capital Mgmt. Co. (No. Civ.A.97-4304, Nov. 16, 1998) (E.D.Pa.1998) (not reported in F.Supp.2d) (“The mere allegation that corporations were not operated as independent entities and that various entities were represented by the same attorney is insufficient to support discovery of the financial information sought by the Plaintiff [in an action seeking to pierce the corporate veil].”).

Even if Elkins had put forward the arguments that the corporate veil should be pierced or that Mack Hornsby and Phillip Hornsby were partners at the time the judgment in favor of Elkins was entered, Elkins has not provided sufficient evidence to support holding Phillip Hornsby personally liable for the debt of Bank Repo Center. First, it does not appear that this case is a proper one for piercing the corporate veil as to Phillip Hornsby individually. This Court has applied the following factors in justifying imposing personal liability on a shareholder: “1) inadequacy of capital; 2) fraudulent purpose in conception or operation of the business; 3) operation of the corporation as an instrumentality or alter ego.” Culp v. Economy Mobile Homes, Inc., 895 So.2d 857, 859-60 (Ala.2004). In establishing a fraudulent purpose or establishing that a business is being operated as an alter ego, it takes more than proof of a shareholder’s desire to avoid personal liability for the business’s debts. “ ‘[T]he “corporate form is not lightly disregarded, since limited liability is one of the principal purposes for which the law has created the corporation.”’” M & M Wholesale Florist, Inc. v. Emmons, 600 So.2d 998, 999 (Ala.1992) (quoting Chenault v. Jamison, 578 So.2d 1059, 1061 (Ala.1991)). “To pierce the corporate veil, a plaintiff must show fraud in asserting the corporate existence or must show that recognition of the corporate existence will result in injustice or inequitable consequences.” Simmons v. Clark Equip. Credit Corp., 554 So.2d 398, 400 (Ala.1989).

The key issue is whether Phillip Horns-by has wrongfully asserted the corporate form in order to avoid his own personal responsibilities. See Cohen v. Williams, 294 Ala. 417, 420, 318 So.2d 279, 281 (1975) (“[W]hen the corporate form is being used to evade personal responsibility this [C]ourt has not been hesitant to disregard the corporate form and impose liability -”); and Scudder v. Scudder, 485 So.2d 743, 745 (Ala.Civ.App.1986) (imposing personal liability when a husband, in a divorce proceeding, used the corporate form to prevent his assets from being subjected to a claim by his wife). There is no evidence in the record indicating that Phillip Horns-by was ever personally liable to Elkins because of his involvement with the Georgia entity or that Phillip Hornsby’s incorporation of Phil’s Motor Service in Alabama was intended to evade that personal liability to Elkins, if it did exist. Bank Repo Center was owned by Mack Horns-by, and, so far as the record shows, Phillip Hornsby was simply an employee of the business. Nor has there been a showing that Phillip Hornsby abused the corporate form as it related to Phil’s Motor Service, subverted the assets of that corporation to his personal use, intermingled his funds with those of the corporation, or failed to follow the corporate formalities. Scudder, 485 So.2d at 745; Simmons, 554 So.2d at 401; and Messick v. Moring, 514 So.2d 892, 895 (Ala.1987).

Moreover, I do not believe the record supports a finding that Bank Repo Center was a partnership between Mack Hornsby and Phillip Hornsby. The only facts in the record that might support such a finding are the following: Bank Repo Center was a sole proprietorship owned by Mack Hornsby; Phillip Hornsby was employed by Bank Repo Center; after the workers’ compensation award was entered for El-kins, Phillip Hornsby participated in the decision not to satisfy the award; and certain financial records for an accounting period after the workers’ compensation award was entered for Elkins showed identical figures for both Bank Repo Center and Phil’s Motor Service. Evidence of a sole proprietorship is not evidence of a partnership; evidence that one is an employee of a sole proprietorship is not evidence that the employee is a partner; and an employee’s participation in a managerial decision is not evidence that the employee is a partner.

It may be that the identical accounting figures for Bank Repo Center and Phil’s Motor Service is evidence supporting a finding that Phil’s Motor Service was at the time of the accounting simply the alter ego of Bank Repo Center; however, it does not establish that Phillip Hornsby individually was the alter ego of Bank Repo Center. Moreover, none of these factors, considered individually or collectively, establishes that there was a partnership made up of Mack Hornsby and Phillip Hornsby at the time the workers’ compensation award was entered; rather, they established, at best — if they are probative at all of the question whether Mack and Phillip formed a partnership — that Mack and Phillip may have formed a partnership at a time after Elkins had received the workers’ compensation award.

Elkins has simply not provided evidence sufficient to prove that a partnership existed before he was awarded workers’ compensation benefits.

“[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment might reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); § 12-21-12(d), Ala.Code 1975. In Watson v. Hamilton, 180 Ala. 3, 5, 60 So. 63, 63 (1912), this Court held that “[a] partnership is never created by implication or operation of law, apart from an express or implied agreement to constitute the relation”; § 10-8-20, Ala.Code 1975 (repealed effective January 1, 2001), provides that “[e]x-cept as provided by Section 10-8-55 [partnership by estoppel], persons who are not partners as to each other are not partners as to third persons.” The only evidence Elkins has provided of an agreement between Mack Hornsby and Phillip Hornsby is the inference from Phillip’s participation in the decision not to pay the workers’ compensation award, the timing of Phillip’s decision to incorporate Phil’s Motor Service in Alabama, and the fact the some financial documents of Bank Repo Center and Phil’s Motor Service for an accounting period after Elkins was awarded workers’ compensation benefits contained identical figures. I do not believe that this inference is substantial evidence that meets Elkins’s burden of proof.

For the foregoing reasons, I believe that the issuance of the writ of execution, insofar as it names Phillip Hornsby in his individual capacity, should be reversed. Therefore, I dissent from quashing the writ of certiorari.

LYONS, J., concurs.

      . Even if we were to assume that there was a partnership between Mack and Phillip at the time Phillip participated in the decision not to pay the award to Elkins, and absent evidence indicating that the partnership preexisted that event, under the statute in force at that time, a partner entering an established partnership would be liable only for the debts of the partnership to the extent of the partnership property and would not incur any personal liability. See § 10-8-56, Ala.Code 1975 (repealed effective January 1, 2001) ("A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission ... except, that this liability shall be satisfied only out of partnership property.”). Under the current statute, Phillip Hornsby would not be personally liable either. See § 10-8A-306(b), Ala.Code 1975 (“A person admitted as a partner into an existing partnership is not personally liable for any partnership obligation incurred before the person’s admission as a partner.”).


author: MURDOCK, Judge.

text:
    Bobby DUNN v. Dewey DAVENPORT and May Davenport.
    2040686.
    Court of Civil Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied Aug. 4, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1051598.

      Alvin T. Prestwood of Prestwood & Associates, P.C., Montgomery, for appellant.
    Charles W. Edmondson, Montgomery, for appellees.
   MURDOCK, Judge.

Bobby Dunn appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Dewey Davenport and May Davenport.

On March 11, 1983, the Davenports purchased and began occupying a parcel of land in Montgomery County. At the time they acquired it, the parcel was bordered on all sides by either wire fencing or existing tree lines. The Davenports maintained the property up to the fence lines and the tree lines.

On December 31, 1997, Bobby Dunn purchased the parcel of land directly north of the Davenports’ property. The southern boundary of Dunn’s property is the northern boundary of the Davenports’ property.

In 2001, Dunn had his property surveyed. The survey revealed that the fence purportedly on the northern boundary of the Davenports’ property actually encroached approximately 25 feet onto Dunn’s property. On November 1, 2001, Dunn wrote Mr. Davenport and requested that he move that portion of the fence that was on Dunn’s property “back to the true property line.” He made a second request by letter of Mr. Davenport to move the fence on November 14, 2001. The Davenports did not move the fence.

On May 7, 2003, Dunn filed a complaint alleging that the Davenports were trespassing on his property and that their actions constituted a nuisance. He sought compensatory and punitive damages, as well as an injunction requiring the Davenports to remove the fence. On June 5, 2003, the Davenports filed an answer denying the material allegations of the complaint. They also filed a counterclaim, seeking to have the court find that they had obtained title to the land encompassed by the fence to the north of their property by adverse possession or by prescription.

On November 16, 2004, the Davenports filed a motion for a summary judgment, contending that they had satisfied the requirements of adverse possession and that, therefore, they were entitled to ownership of the disputed tract of land lying between the southern boundary reflected in Dunn’s deed and the fence 25 feet to the north of that boundary. In support of their motion, the Davenports offered, among other things, Mr. Davenport’s affidavit in which he stated in pertinent part:

“On March 11, 1983, my wife and I acquired in excess of sixteen acres of real property located in Montgomery County, Alabama, in the southeastern portion of the city which is located on Woodley Road. From that date forward my wife and I went into possession of the subject real property, it was bordered on all sides by either barbed wire fencing or existing tree lines. From that date forward, we maintained said property up to the fence lines and tree lines as our own in a manner which is consistent with rural property. In doing so, we specifically claimed that property which is now in dispute by [Dunn] up to the existing tree line for twenty years prior to the filing of [Dunn’s] complaint and we continue to claim such property to this day. With regard to the disputed tract, for over twenty years we have bushhogged such area, walked the area, raised cattle thereon, cultivated hay, maintained the area and claimed the same as our own to the exclusion of all others.”

(Emphasis added.) Although Dunn filed a brief in response to the Davenports’ motion, he did not file any evidence in opposition. Consequently, the facts stated in Mr. Davenport’s affidavit became undisputed for purposes of the Davenports’ summary-judgment motion.

On December 17, 2004, the trial court held a hearing on the Davenports’ motion. On January 11, 2005, the trial court granted the Davenports’ motion and entered a summary judgment in their favor, finding that they had satisfied the elements of adverse possession. Dunn filed a motion to alter, amend, or vacate the judgment, which the trial court denied on March 23, 2005. Dunn appeals.

In his initial brief to this court, Dunn makes only one argument. Although, as noted above, the facts pertaining to the Davenports’ possession of the disputed tract are undisputed for purposes of the Davenports’ summary-judgment motion, Dunn argues that those facts do not evidence a possession of the property that is “hostile” in the sense necessary to establish a claim of adverse possession. Specifically, Dunn argues that the Davenports’ possession did not become “hostile” until after Dunn sent the letters in 2001 requesting that the Davenports move the fence off of his property. The element of hostility not being present for the requisite time, Dunn argues, the trial court erred when it entered a judgment in the Davenports’ favor.

Our Supreme Court explained in Tidwell v. Strickler, 457 So.2d 365 (Ala.1984):

“[T]here are basically two types of adverse possession; statutory adverse possession, and adverse possession by prescription. Both require the common elements of actual, exclusive, open, notorious, and hostile possession under a claim of right, but the statutory version, which requires possession for only ten years rather than the twenty years required by the prescription version, also requires that the possessor hold under color of title, have paid taxes on the property for ten years, or have derived his title by descent or devise.”

Tidwell, 457 So.2d at 368. Section 6-5-200, Ala.Code 1975, which sets out the elements that must be proven to establish “statutory adverse possession,” makes clear that, in a case involving a boundary dispute between coterminous landowners, possession need be maintained for only 10 years even if none of the three quoted alternative conditions is satisfied. See § 6-5-200(c), Ala.Code 1975; and Carpenter v. Huffman, 294 Ala. 189, 191, 314 So.2d 65, 67-68 (1975) (discussing statutory predecessor to § 6-5-200). A party claiming title to property by adverse possession must prove the elements of adverse possession by clear and convincing evidence. Id.

As to the element of hostility, our Supreme Court has stated:

“Another essential element of adverse possession relates to the claimant’s intent to assert dominion and control over the disputed property. Reynolds v. Rutland, 365 So.2d 656 (Ala.1978). The Reynolds court emphasized, however, that although ‘intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, [282 Ala. 528, 213 So.2d 374 (1968) ].’ Id. at 657-58.”

Strickland v. Markos, 566 So.2d 229, 233 (Ala.1990) (emphasis added).

Mr. Davenport stated in his affidavit that, since March 11, 1983, the Davenports have maintained the property up to the fence lines and tree lines as their own in a manner consistent with the ownership and use of rural property, including bushhog-ging it, walking it, raising cattle on it, cultivating hay on it, maintaining it, and claiming it as their own to the exclusion of the rights of others. While there may not be evidence indicating that the Davenports’ possession of the disputed strip was hostile in the sense of being accompanied by some belligerence or animus toward Dunn, the Davenports’ possession of the property was “hostile” within the meaning of that term for purposes of a claim of adverse possession. Because the Davenports held the property as their own, Dunn’s argument that the element of hostility was not satisfied is without merit.

The trial court’s judgment is affirmed.

AFFIRMED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

      . According to Dunn, the requisite hostility did not manifest itself until the Davenports "ran off” a surveyor that Dunn had hired and threatened persons that Dunn had hired to clear the disputed strip.

      . . The record reveals that, at a minimum, the Davenports adversely possessed the disputed tract for the 10-year period required in boundary disputes between coterminous landowners. We therefore pretermit consideration of the issue whether the Davenports established the requisite elements of adverse possession for a 20-year period.
      Dunn makes additional arguments in his reply brief urging reversal. Because he did not make those arguments in his initial brief, we do not consider them. See C & S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232, 1232 n. 1 (Ala.1992).


author: PER CURIAM.

text:
    Darlett LUCY-DAWSON v. Jerrilyn BOYD-HADLEY. Jerrilyn Boyd-Hadley v. Darlett Lucy-Dawson.
    2040828.
    Court of Civil Appeals of Alabama.
    July 28, 2006.
    Rehearing Denied Oct. 13, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1060173.

      Larry C. Moorer, Mobile, for appellant/cross-appellee Darlett Lucy-Dawson.
    Richard G. Poff, Jr., Birmingham, for appellee/cross-appellant Jerrilyn Boyd-Hadley.
   PER CURIAM.

Jerrilyn Boyd-Hadley (“the client”) sued Darlett Lucy-Dawson (“the attorney”), alleging that the attorney had failed to file a claim against the estate of the client’s deceased ex-husband to collect approximately $175,000 in alimony in gross due the client pursuant to a 1995 divorce judgment. After a jury trial at which the attorney and the client were the only witnesses, the jury returned a verdict in favor of the client and awarded her $90,000; the trial court entered a judgment accordingly. The attorney filed a postjudgment motion for a judgment as a matter of law (“JML”) and a motion for a new trial; in her post-judgment motion for a JML, the attorney asserted that the evidence was insufficient to support the jury’s award of $90,000 in damages; that is, the attorney argued that the client had failed to establish that the client would have been able to recover from the estate of the client’s deceased ex-husband because, the attorney contended, the client had failed to prove the assets contained in the estate or the value of the estate. After considering the attorney’s postjudgment motions, the trial court granted the attorney’s postjudgment motion for a JML in part and entered an order reducing the jury’s award to $25,000, the amount of the retainer paid by the client to the attorney. The attorney appealed the judgment, and the client cross-appealed the partial grant of the attorney’s postjudgment motion for a JML.

The attorney argues that the evidence presented at trial failed to establish that the client would have succeeded in prosecuting and winning her claim against the estate of the client’s deceased ex-husband. She states that the evidence did not establish the assets contained in the estate or the value of the estate. In addition, the attorney argues on appeal that the trial court erred by reducing the $90,000 damages award to $25, 000, rather than to a lesser amount. The client cross-appealed the partial grant of the attorney’s motion for a JML, arguing that there was sufficient evidence to support the jury’s $90,000 verdict.

“This court reviews the trial court’s action [on a motion for JML] using the same standard used by the trial court in initially granting or denying the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the issue is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmov-ant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a JML, this court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Indus., Inc. v. Pate, 678 So.2d 724 (Ala.1996).”

City of Mobile v. Taylor, 938 So.2d 407, 409 (Ala.Civ.App.2005).

The trial court partially granted the attorney’s motion for a JML on the basis that the client had “failed to prove that there were funds in the estate to pay her claim or any part thereof,” and it based the amount of the damages that it awarded on the $25,000 retainer fee paid by the client to the attorney. However, the evidence at trial concerning the assets owned by the client’s ex-husband upon his death was disputed. The attorney herself had prepared a memorandum to the client indicating that the client’s ex-husband had died owning several pieces of real estate that were worth an amount that would have been more than sufficient to satisfy the client’s alimony-in-gross claim for $175,000. Although the attorney testified that, upon further investigation, she had discovered that the client’s ex-husband had transferred those properties and that therefore they were not in the estate of the client’s ex-husband, the jury could have disbelieved the attorney’s testimony in light of her earlier memorandum to the client. In addition, the attorney’s testimony as to what assets the client’s ex-husband might have transferred before his death contained ambiguities that the jury could have resolved in favor of findings that the client’s ex-husband owned some real estate and other assets at the time of his death and that the value of those assets was at least $90,000, the amount of the jury’s damages award. Further, the client testified that for several years before her ex-husband’s death, and through the month of her ex-husband’s death, he had paid her periodic alimony of $3,000 per month; she said that he had paid her alimony-in-gross of $25,000 per year until 1999. The client also testified that the estate of her deceased ex-husband made approximately $40,000 in payments for the education of one of the client and her deceased ex-husband’s children. Although the foregoing testimony in favor of the client was disputed, viewing the evidence in the light most favorable to the client, and entertaining such reasonable inferences as the jury would have been free to draw from the evidence, we conclude that the evidence at trial was sufficient to support the jury’s damages award to the client.

In light of the foregoing, a discussion of the issues raised by the attorney is unnecessary. We direct the trial court to reinstate the original jury verdict in the amount of $90,000.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.


author: CRAWLEY, Presiding Judge.

text:
    RMC & ASSOCIATES, INC. v. Gary BEASLEY.
    2040997.
    Court of Civil Appeals of Alabama.
    Aug. 4, 2006.
    Rehearing Denied Oct. 6, 2006.
    Certiorari Denied Dec. 8,2006 Alabama Supreme Court 1060152.
    Reggie Copeland, Jr., of Olen, Nicholas & Copeland, P.C., Mobile, for appellant.
    Michael A. Wing, Mobile, for appellee.
   CRAWLEY, Presiding Judge.

RMC & Associates, Inc., appeals from a judgment awarding Gary Beasley treble damages, attorney’s fees, and costs, pursuant to § 8-24-3, Ala.Code 1975, as a consequence of RMC’s failure to pay Beasley a sales representative’s commission upon the termination of his employment.

Section 8-24-3 is the penalty provision of an act dealing with “Sales Representative’s Commission Contracts,” § 8-24-1 et seq., Ala.Code 1975 (“the Act”).

“The [Act] requires that commissions ‘due at the time of termination’ be paid within 30 days, but it also requires that commissions yet to accrue be paid within 30 days of the date on which they become due. Clearly, the [Act] contemplates that a sales representative is to be paid commissions that accrue on accounts that, because of his or her efforts on behalf of the principal, continue to provide business to the principal following termination of the representative.”

(Emphasis omitted.) Lindy Mfg. Co. v. Twentieth Century Marketing, Inc., 706 So.2d 1169, 1174 (Ala.1997). The Act provides that, if a principal fails to pay a sales representative’s commission when it is due, the principal “is liable to the sales representative in a civil action for three times the damages sustained by the sales representative plus reasonable attorney’s fees and court costs.” § 8-24-3.

RMC is an industrial distributor of pipeline products such as valves, expansion joints, and coatings. RMC’s customers are chemical plants, power plants, and paper mills in a three-state region. Most of RMC’s customers are end users of the products they buy from RMC, although a few — perhaps one percent, according to RMC president Phillip Randall Copeland — buy for resale to other customers.

Beasley worked as a salesman for RMC from January 28, 2000, to September 2, 2003, and he was paid a salary plus commissions. On August 15, 2003, Beasley sold valves to RMC’s customer, Stone Container Company, a paper mill in Panama City, Florida. It is undisputed that Stone Container purchased the valves in order to install them in its mill, not to resell them. After Beasley resigned his employment on September 2, 2003, RMC refused to pay him a commission for the sale of the valves to Stone Container.

Section 8-24-1, Ala.Code 1975, is the definitional section of the Act. It provides:

“As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
“(1) Commission. Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of certain orders or sales.
“(2) Principal. Any person who does all of the following:
“a. Engages in the business of manufacturing, producing, importing, or distributing a product or products for sale to customers who purchase the product or products for resale.
“b. Utilizes sales representatives to solicit orders for the product or products.
“e. Compensates the sales representatives, in whole or in part, by commission.
“(3) Sales Representative. Any person who engages in the business of soliciting, on behalf of a principal, orders for the purchase at wholesale of the product or products of the principal, but does not include a person who places orders or purchases for his or her own account for resale, or a person engaged in home solicitation sales.
“(4) Termination. The end of services performed by the sales representative for the principal, whether by discharge, resignation, or expiration of a contract.”

On appeal, RMC does not contest the fact that it owed Beasley a commission on the sale of the valves to Stone Container. RMC contests only its liability for treble damages, attorney’s fees, and costs under the Act. RMC contends that the statutory penalties provided for in the Act do not apply to Beasley’s commission on the sale to Stone Container because that particular transaction did not involve the sale of a product for resale but, instead, involved the sale of a product to an end user.

Beasley’s claim was tried to a jury. At the close of Beasley’s evidence and then at the close of all the evidence, RMC moved for a judgment as a matter of law (“JML”), arguing that the Act applied, as a matter of law, only to wholesale transactions, and citing decisions construing Missouri, New Jersey, and South Carolina Sales Representative’s Commission Acts. See Hoffman v. Van Pak Corp., 16 S.W.3d 684 (Mo.Ct.App.2000); American Delta Techs. Inc. v. RK Elec. Infor. Concepts, 276 N.J.Super. 283, 647 A.2d 1344 (1994); and Lee v. Thermal Eng’g Corp., 352 S.C. 81, 572 S.E.2d 298 (2002). See also Zauderer Assocs., Inc. v. C & J Indus., Inc., 378 F.Supp.2d 682 (D.S.C.2005)(applying South Carolina law).

Beasley argued at trial and now maintains on appeal that the Act does not require that the sale at issue be a wholesale transaction or that the principal be engaged exclusively in selling at wholesale. He contends that the Act requires only that the principal be “engaged [to some extent] in the business of’ offering products for resale and that the sales representative be “engaged [to some extent] in the business of’ soliciting orders for purchase of the principal’s products at wholesale. Beasley maintains that, because the evidence established that a portion of RMC’s business (albeit a very small portion, only one percent) was composed of wholesale transactions, the Act applies. Beasley argues that because the parties were engaged in the business of wholesale sales, the particulars of any specific sales transaction — whether to an end user or to a buyer for resale to another buyer — were immaterial. In essence, Beasley maintains that the applicability of the Act turns upon the parties’ status as “principal” and “sales representative” as those terms are defined in § 8-24-1, irrespective of the nature of the specific transaction, whereas RMC maintains that the nature of the transaction at issue is controlling in determining whether the parties fit within the definitions of “principal” and “sales representative.” Without deciding whether the parties’ “status” or the nature of the “transaction” at issue was determinative in deciding the applicability of the Act, the trial court concluded that whether RMC was a “principal” and whether Beasley was a “sales representative” within the meaning of the Act were questions of fact to be resolved by the jury.

“This Court reviews a denial of a motion for a JML by the same standard the trial court used in initially denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Furthermore, we must determine “whether the party who bears the burden of proof had produced substantial evidence creating a factual dispute requiring resolution by the jury.’ Bell v. T.R. Miller Mill Co., Inc., 768 So.2d 953, 956 (Ala.2000), citing Carter v. Henderson, 598 So.2d 1350 (Ala.1992). We view the evidence in a light most favorable to the nonmov-ing party and entertain any reasonable inferences the jury may have been able to draw. Bell, 768 So.2d at 956. Notwithstanding, we accord the trial court’s ruling on a question of law no presumption of correctness. Id.”

LaFarge Bldg. Materials, Inc. v. Stribling, 880 So.2d 415, 418-19 (Ala.2003).

Alabama is one of 33 states that have enacted laws to protect commissions earned by sales representatives. See Randall J. Gillary & Kevin P. Albus, Michigan’s Sales Representative Act Revisited — Again—Or, Does “Intentionally” Mean “In Bad Faith,” 2001 Mich. St.— Det. Coll, of Law L.Rev. 965, 976 & n. 57 (Fall 2001). “[T]he statutes enacted in most of these states are essentially modified versions of the model act,” id. at 976-77, which was drafted by counsel for the Bureau of Wholesale Sales Representatives, id. at 975 n. 52.

Alabama’s version of the model act defines a “principal” as one who:

“a. Engages in the business of manufacturing, producing, importing, or distributing a product or products for sale to customers who purchase the product or products for resale.
“b. Utilizes sales representatives to solicit orders for the product or products.
“c. Compensates the sales representatives, in whole or in part, by commission.”

§ 8-24-1(2) (emphasis added). Section 8-24-1(3) defines a “sales representative” as a person who

“engages in the business of soliciting, on behalf of a principal, orders for the purchase at wholesale of the product or products of the principal, but does not include a person who places orders or purchases for his or her own account for resale, or a person engaged in home solicitation sales.”

(Emphasis added.)

RMC cites decisions from New Jersey and South Carolina construing the versions of the model act in effect in those jurisdictions. We have determined that the New Jersey and South Carolina decisions are of little or no help in resolving the “status” versus “transaction” question presented by the Alabama Act because the New Jersey and South Carolina statutes specifically exclude from the definition of “sales representative” one who “sells or takes orders for the sale of products to the ultimate consumer.” See N.J. Stat. Ann. § 2A:61A-1c. (quoted in American Delta, 276 N.J.Super. at 287, 647 A.2d at 1347); S.C.Code Ann. § 39-65-10(4) (quoted in Zauderer, 378 F.Supp.2d at 687-88, and Lee, 352 S.C. at 91, 572 S.E.2d at 303). The New Jersey and South Carolina statutes require that, to be a “sales representative” entitled to additional damages under the Sales Representative’s Commission Act, a salesman must make no sales to the ultimate consumer. See American Delta, 276 N.J.Super. at 288, 647 A.2d at 1347 (stating that “[t]he Act applies only to wholesale sales and wholesale orders” (emphasis added)). See also M.S. Kind Assocs., Inc. v. Mark Evan Prods., Inc., 222 Ill.App.3d 448, 450, 584 N.E.2d 180, 181, 165 Ill.Dec. 1, 2 (1991)(stating that “[t]he General Assembly has patently found it desirable to promulgate the statute at issue here in order to protect commissioned sales representatives who solicit wholesale orders only, who do not sell to the ultimate consumer” (first emphasis in original; second emphasis added)). Because salesmen in Illinois, New Jersey, and South Carolina must engage only in wholesale transactions to be considered “sales representatives” and to be eligible for additional damages under their respective Sales Representative’s Commission Acts, we do not consider the decisions from those jurisdictions persuasive. The Missouri decision cited by RMC, however, is instructive.

The trial court erred by deciding that the applicability of the Act was a question of fact. Whether the Act applied to the undisputed facts was a question of law — one that a Missouri court, faced with similar facts and construing a statute virtually identical to the Alabama Act, answered by determining that the penalty provisions of a Sales Representative’s Commission Act are not triggered unless the sale in question is a wholesale transaction. See Hoffman v. Van Pak Corp., supra.

In Hoffman, a salesman sought damages under the Missouri Sales Representative’s Commission Act when the company for which he worked failed to make timely payments of commissions after he had resigned. The evidence established that the company custom-manufactured electrical-control systems according to individual customer’s specifications. Although the company “sold parts ... to the aftermarket, which, its officers testified, were wholesale sales that constituted less than one percent of its business,” the company’s sales were primarily to end users. 16 S.W.3d at 686. The Missouri court affirmed a judgment denying the salesman statutory damages, holding that the evidence was sufficient to support the trial court’s finding that the company was not a “principal” within the meaning of the statute because the corporation did not “manufacture ... a product for wholesale.” 16 S.W.3d at 689.

The statute at issue in Hoffman contained definitions of “principal” and “sales representative” that are nearly identical to the definitions in § 8-24-1(2) and -1(3), Ala.Code 1975. The Missouri statute defined “principal” as one who:

“(a) Manufactures, produces, imports, or distributes a product for wholesale.
“(b) Contracts with a sales representative to solicit orders for the product; and
“(c) Compensates the sales representative, in whole or in part, by commission.”

Mo.Rev.Stat. § 407.911(2) (quoted in Hoffman, 16 S.W.3d at 688).

We acknowledge that the definition of “principal” in the Aabama Act does not use the word “wholesale” as the Missouri statute at issue in Hoffman did. Instead, the Alabama Act provides that a principal is one who “[engages in the business of manufacturing, producing, importing, or distributing a product or products for sale to customers who purchase the product or products for resale.” § 8-24-1(2) (emphasis added). The plain and ordinary meaning of the word “wholesale,” however, denotes the sale of a product for resale. See Hoffman, 16 S.W.3d at 688-89. Given the undisputed facts of the sales transaction at issue in this case — that RMC, through Beasley, sold a product to Stone Container as an end user and not as a “customer!] who purchase[d] the product ... for resale” — any difference between the wording of the definition of “principal” in the Alabama Act and the wording of the definition in the Missouri statute at issue in Hoffman is immaterial.

The Missouri statute defined “sales representative” as

“a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale.”

Mo.Rev.Stat. § 407.911(3) (quoted in Hoffman, 16 S.W.3d at 688). The salesman in Hoffman made an argument similar to the argument Beasley made to the trial court and now reasserts on appeal in the present case. In Hoffman, the salesman argued “that there is no good reason for restricting the application of the statute based on ‘semantics’ and that, as a commissioned salesman, the statute should apply to him.” 16 S.W.3d at 689. The Missouri court responded:

“[The Sales Representative’s Commission Act] provides for additional monetary damages, in addition to actual damages, for the untimely payment of commissions. Statutes imposing penalties must be strictly construed. The statute uses the word ‘wholesale’ in defining both ‘principal’ and ‘sales representative.’ We presume that the legislature did not insert idle verbiage or superfluous language in the statute. Each word, clause, sentence, and section of a statute should be given meaning.”

16 S.W.3d at 689 (internal citations omitted). See generally Cox v. Microsoft Corp., 290 A.D.2d 206, 207, 737 N.Y.S.2d 1, 2-3 (2002) (stating that “[i]t has long been recognized that a provision for the trebling of damages is penal and subject to strict construction”); Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa.Super.Ct.1997) (holding that the imposition of exemplary or treble damages is essentially punitive in nature and subject to strict construction); and 22 Am.Jur.2d Damages § 618 (2005) (“[cjourts that treat statutes providing for double or treble damages as penal laws hold that they must be strictly construed and that multiple damages may be awarded only when expressly authorized by statute” (footnotes omitted)).

Because the transaction at issue on this appeal was a sale to an end user, RMC was not a “principal” and Beasley was not a “sales representative” within the meaning of the Alabama Act. The judgment of the Mobile Circuit Court is reversed, and the cause is remanded with instructions to vacate the award of treble damages, attorney’s fees, and costs in favor of Beasley.

The appellee’s motion to strike is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Section 407.911 was amended in 2005; as amended, it no longer applies solely to wholesale transactions.

      . See note 1, supra.