author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte MILLER, HAMILTON, SNIDER & ODOM, LLC, et al. (In re Bryan A. Corr, Sr., et al. v. Miller, Hamilton, Snider & Odom, LLC, et al.).
    1060479.
    Supreme Court of Alabama.
    June 1, 2007.
    Rehearing Denied Aug. 24, 2007.

      Robert M. Girardeau and Jeffrey N. Windham of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioners.
    David 0. Upshaw and J. Christopher Miller of Ogle, Liles & Upshaw, LLP, Birmingham, for respondents.
   WOODALL, Justice.

Miller, Hamilton, Snider & Odom, LLC (“the law firm”), and three of its attorneys, Ben H. Harris III, John C.H. Miller, Jr., and Giles G. Perkins, the defendants in an action pending in the Baldwin Circuit Court, petition for a writ of mandamus directing the circuit court to vacate its order transferring-the action to the Jefferson Circuit Court. We grant the petition and issue the writ.

On March 18, 2005, the law firm and Harris, Miller, and Perkins were sued in the Blount Circuit Court by Bryan A. Corr, Sr.; Doris Corr, individually and as the executrix of the estate of R.C. Corr, Jr., deceased; Tina M. Corr; and Corr, Inc. (collectively “the Corrs”). The law firm and its attorneys filed a motion to transfer the Corrs’ action to the Baldwin Circuit Court. The trial court denied their motion to transfer, and they petitioned this Court for a writ of mandamus.

This Court held that venue was not proper in Blount County. Therefore, we granted the petition for the writ of mandamus and directed the Blount Circuit Court to vacate its order denying the defendants’ motion to transfer and to enter an order transferring the action to the Baldwin Circuit Court. Ex parte Miller, Hamilton, Snider & Odom, LLC, 942 So.2d 334 (Ala.2006).

After the case was transferred to, and docketed by, the Baldwin Circuit Court, the Corrs filed a motion to transfer the action to the Jefferson Circuit Court based on the doctrine of forum non conveniens, codified at § 6-3-21.1, Ala.Code 1975. The trial court, over the defendants’ objections, granted the Corrs’ motion and ordered that the case be transferred to the Jefferson Circuit Court. The law firm and Miller, Harris, and Perkins timely filed this petition for a writ of mandamus. Pending this Court’s review of this mandamus petition, the case file has not been sent to, or docketed by, the Jefferson Circuit Court.

A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county. Ex parte Wilson, 854 So.2d 1106, 1109 (Ala.2002). “ ‘[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 Leasecomm Corp., 886 So.2d 58, 62 (Ala.2003)(quoting Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001)). The law firm and its attorneys have demonstrated a clear entitlement to the relief they seek.

The doctrine of forum non con-veniens is applicable only “[w]ith respect to civil actions filed in an appropriate venue.” § 6-3-21.1(a) (emphasis added). This statutory language is consistent with “the fundamental premise of all transfers for convenience — i.e., that venue is good at the time of filing, but that a transfer to a better venue is, or has become, appropriate.” Ex parte Wilson, 854 So.2d at 1112 (emphasis added). Consequently, as this Court has stated, the doctrine of forum non conveniens, as codified at § 6-3-21.1, “has a field of operation only where an action is commenced in a county in which venue is appropriate.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995). See also Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991); Montgomery Elevator Co. v. Pinkney, 628 So.2d 767, 768 (Ala.Civ.App.1993).

The Corrs chose to commence their action in the Blount Circuit Court, an improper venue. Consequently, their case was transferred to the Baldwin Circuit Court, where it must remain, because the doctrine of forum non conveniens is inapplicable. Therefore, we grant the petition for the writ of mandamus and direct the Baldwin Circuit Court to vacate its order transferring the action to the Jefferson Circuit Court.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

Based on the language of the specific statutory provision at issue; the stated purpose and object of that statutory provision and the conditions to which it may apply; and the need to avoid unnecessary conflict with, and indeed to harmonize that provision with, other statutory provisions and rules, I must read § 6-3-21.1(a), Ala. Code 1975, as generally extending to plaintiffs and defendants alike the right to seek a transfer of an action from one proper venue to another, even when the action was initially filed in an improper venue. Further, this interpretation of § 6-3-21.1 is consistent with the rule that obtains in most other jurisdictions.

“A statute should be construed not only in light of its language, but also in light of its purpose, its object, its relation to other laws, and the conditions that may arise under its provisions.” Ex parte Edwards, 816 So.2d 98, 106 (Ala.2001). Furthermore, “[i]t is a well established rule of statutory interpretation that the law favors rational and sensible construction.... ” Crowley v. Bass, 445 So.2d 902, 904 (Ala.1984).

The “purpose” or “object” of § 6-3-21.1 is to provide for the transfer of an action from one forum to another “in the interest of justice,” and particularly where to do so would serve the “convenience of the parties and witnesses.” If the legislature has made a policy decision that the just and economical outcome of legal actions is tó be pursued in this manner, I am not inclined to interpret the statute the legislature enacted for this purpose as applying to only one class of litigants, thereby only partially achieving the stated goal, especially where the language of the statutory provision does not call for such an interpretation.

By its terms, § 6-3-21.1(a) is not limited to either “plaintiffs or defendants” in providing the right to seek a change of venue. In this regard, § 6-3-2í.l(á) contrasts with the immediately preceding section of the Code, in which the legislature demonstrated its willingness and ability to provide such a right only to “defendants” when that is what it intended. See § 6-3-21, Ala.Code 1975 (addressing the right of “defendants” to move for a change of venue under certain circumstances).

In addition to being called upon to construe a statute in accordance with the purpose and object of the statute, we are to “ ‘consider the statute as a whole and ... construe the statute reasonably so as to harmonize [the statute’s own] provisions.’ ” Proctor v. Riley, 903 So.2d 786, 789 (Ala.2004) (quoting McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429, 432 (Ala.1993)). Furthermore, it is well settled that separate “statutes must be construed in pari materia in light of their application to the same general subject matter. Our obligation is to construe provisions ‘in favor of each other to form a harmonious plan,’ if it is possible to do so.” Opinion of the Justices No. 334, 599 So.2d 1166, 1168 (Ala.1992) (quoting Ex parte Coffee County Comm’n, 583 So.2d 985, 988 (Ala.1991)). See also Rule 81, Ala. R. Civ. P., Committee Comments on 1973 Adoption ■ (noting that when a statutory provision is inconsistent with a Rule of Civil Procedure, the statute shall govern); see generally Rule 1, Ala. R. Civ. P. (“These rules shall be construed ... to secure the just, speedy and inexpensive determination of every action.”).

Not only does § 6-3-21.1(a), by its terms, not limit the rights it grants only to plaintiffs or defendants, the very next subsection of the statute, § 6 — 3—21.1(b), expressly refers t'o “[t]he right of a party to move for a change or transfer of venue pursuant to this statute.” (Emphasis added.) Moreover, § 6-3-21.1(b) expressly states that this right of “a party” to move for a change of venue is “cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to § 6-3-20, § 6-3-21, or [the] Alabama Rules of Civil Procedure.” (Emphasis added.)

The law firm and the individual lawyers (“the petitioners”) rely on language in Rule 82(d)(3), Ala. R. Civ. P., providing that a “defendant” can choose the court to which a case is to be transferred when a plaintiff files the action iii a county in which venue is improper. What Rule 82(d)(3) specifically says is that when the venue of an action is improper, the defendant “shall have the right to select such other court to which the action shall be transferred” (emphasis added); it does not state that the defendant shall have the right to select the fórum in which the case ultimately shall be tried. Rule 82(d)(3) merely reflects the fact that, when a case is pending in a court that has no authority over it because venue is improper, before any- discretionary orders regarding the management or prosecution of the case are entered — including any order choosing which of two proper venues should be selected for the trial of the case — the case must first be transferred to a court with the authority to exercise such discretion and to make such decisions and that the defendant' should have the right to make the initial choice of forum to which the casé will be transferred for that purpose. Nothing in Rule 82(d)(3) provides that venue cannot thereafter be changed by the trial court if good cause exists to do so. In that regard, and to state the obvious, § 6-3-21.1 is a statute, not a rule as is Rule 82(d). A reading of Rule 82 as authorizing the defendant to select a forum to which the plaintiff and the court are thereafter unalterably bound would conflict with a reading of § 6-3-21.1(a) and (b) that is “rational and sensible” and that fully promotes the purpose and object intended by the legislature in enacting § 6-3-21.1.

The inability of the petitioners’ construction of Rule 82(d)(3) to survive a comparison with the language and purpose of § 6-3-21.1 is no different than the fact that the petitioners’ construction of Rule 82(d)(3) cannot survive a comparison with the provisions of the companion statute to § 6-3-21.1 — § 6-3-20. Section 6-3-20 expressly, and without any exception, extends to “[efither party to a civil action” the right to “move the court to change the venue at any time before final trial” to the end of achieving a “fair and impartial trial.” (Emphasis added.)

The petitioners .base their argument on, and the main opinion relies upon, the fact that the language in .§ 6-3-21.1(a) providing that the transfer of an action from one forum to another for the sake of convenience is limited to “actions filed in an appropriate venue.” Although the petitioners’ interpretation of this phrase is not unreasonable, it is not the only reasonable interpretation.

When a case is filed in the wrong county and remains pending in that county, -in no respect can it be said that the case is “filed” in a proper venue within the contemplation of § 6-3-21.1(a). That, 'in fact, was the situation in two of the three cases the main opinion cites for the proposition that § 6-3-21.1 has a field of operation “ ‘only where an action is commenced in a county in which venue is appropriate,’ ” 978 So.2d at 14 (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995), and citing Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991)). In the third case the main opinion cites, Montgomery Elevator Co. v. Pinkney, 628 So.2d 767, 768 (Ala.Civ.App.1993), the discussion of forum non conveniens appears to be dictum in a case in which the only two venues under consideration were a county in which the case was originally filed and in which venue was improper and a county to which the trial court had transferred the case and in which venue was proper. , .

When a case is pending in a county where venue is proper, however, it is common to say that the case is “filed” in that county. It is not necessary, however, to rely only on such common usage of the term “filed.” Rule 82(d)(1), Ala. R. Civ. P., expressly provides that when a case is commenced in the wrong county, but thereafter transferred to a county with proper venue, “the case shall proceed as though originally filed” in the county with proper venue.. (Emphasis added.)

The conclusion that once a case comes to rest in a proper venue, either a plaintiff or a defendant may thereafter move for a transfer of that case on the ground of forum non conveniens, regardless of whether the plaintiff mistakenly filed the action initially in an improper venue, reflects the rule that obtains in states other than Alabama.' As one treatise puts it, “[generally, either party to an action, plaintiff or defendant, may file a request for a change of venue on discretionary grounds, such as on the ground that the convenience, of witnesses would be promoted by the change.” 92A C.J.S. Venue § 142 (2000) (footnote omitted). As the same treatise goes on to explain, in a case in which a plaintiff makes an initial choice of forum that turns out to be improper and the action is then transferred to a proper venue on the motion of the defendant, “the plaintiff will then have the right, in the county to which the action is so removed, to move for removal of the cause for the convenience of witnesses.” Id.

In summary, I cannot construe § 6-3-21.1 as evidencing a legislative intent to extend with one hand a right to seek a convenient forum for the just and economical resolution of disputes while, with the other hand, withholding that right from approximately half of the litigants in our judicial system. Where a party has made an honest mistake in an initial choice of forum, I see no reason to deprive that party of the benefit of § 6-3-21.1. A reading of § 6-3-21.1 as extending the rights granted therein to all litigants is consistent with a common-sense reading of that statute that fully achieves the statute’s purpose, that harmonizes the various provisions thereof with one another and with other statutes, that avoids a conflict with Rule 82(d)(1), and that puts Alabama law in line with the law of other jurisdictions.

      . In light of our holding, we need not consider the circumstances, if any, under which a plaintiff may be entitled to seek a transfer based on the doctrine of fomm non conve-niens.

      . Similarly, the conclusion that the right to move for transfer on the ground of forum non conveniens is available to both plaintiffs and defendants is consistent with the rule in federal courts. Although the federal forum non conveniens statute does not contain the same disputed opening clause as is found in § 6-3-21.1, there appears to be near unanimity among federal jurisdictions "for the proposition that the motion [for a transfer on forum non conveniens grounds] also may be made by the plaintiff.” 15 Charles Alan Wright et al., Federal Practice and Procedure § 3844 (3d ed.2007), and numerous cases cited therein. See also, e.g., Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986) (“[a] plaintiff, as well as a defendant, may move for transfer of venue under § 1404(a)”); Pruess v. Udall, 359 F.2d 615 (D.C.Cir.1965); Torres v. Walsh, 221 F.2d 319 (2d Cir.1955); Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 784 (6th Cir.1961) (the right to a transfer under the statute is available to a plaintiff as well as a defendant); hut see Federal Practice and Procedure § 3844 (also including citations to two federal district court cases in which a contrary conclusion was reached).


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte ALABAMA DEPARTMENT OF TRANSPORTATION (In re Good Hope Contracting Company, Inc. v. Alabama Department of Transportation).
    1060078.
    Supreme Court of Alabama.
    July 20, 2007.

      Roger L. Bates, Mark T. Waggoner, and Stephen N. Fitts III of Hand Arendall, L.L.C., Birmingham, for petitioner.
    Jack G. Kowalski, L. Griffin Tyndall, and David Wanhatalo of Burr & Forman, LLP, Birmingham, for respondent.
   SEE, Justice.

The Alabama Department of Transportation (“ALDOT”) petitions this Court for the writ of mandamus directing the Montgomery Circuit Court to enter an order dismissing the complaint of Good Hope Contracting Company, Inc. (“Good Hope”), on the grounds of sovereign immunity. Because ALDOT has demonstrated a clear legal right to this relief, we grant the petition and issue the writ of mandamus.

Facts and Procedural Background

Between March 2002 and January 2003, Good Hope entered into three contracts with ALDOT pursuant to which Good Hope was to undertake various roadway-construction projects. Those contracts contained similar liquidated-damages clauses that allowed ALDOT to assess liquidated damages against Good Hope, calculated on the basis of the number of days Good Hope exceeded the time allotted under the contract for the completion of the project. The contracts, however, give Good Hope the right to request an extension of time in which to complete the project. They provide that the “Director [of ALDOT] shall have final authority to approve or disapprove the request for an extension of time” and to decide “any question connected with ... delay in the prosecution of the Work.” Petition at 7. Based upon these contract provisions, AL-DOT withheld approximately $600,000 in liquidated damages from the contract price owed to Good Hope on the three contracts.

Good Hope sued ALDOT, alleging that the liquidated damages had been wrongfully assessed and seeking damages for breach of contract, negligence, and unjust enrichment and asserting a claim based on quantum meruit. Good Hope also sought a judgment declaring that the liquidated-damages provision in each contract was a penalty and was therefore void, and it sought a writ of mandamus from the trial court directing ALDOT to pay for the services Good Hope had performed under the contracts. ALDOT moved the trial court to dismiss the complaint on the ground that ALDOT, as an agency of the State of Alabama, is entitled to sovereign immunity under § 14, Ala. Const.1901. The trial court set the case for trial without ruling on ALDOT’s motion to dismiss.

ALDOT petitioned this Court for the writ of mandamus directing the trial court to dismiss Good Hope’s action against it. ALDOT also moved this Court to stay the proceedings in the trial court pending this Court’s consideration of ALDOT’s petition. We ordered answer and briefs, and we stayed the proceedings in the trial court pending disposition of the petition for the writ of mandamus.

Issue

The issue is whether the trial court erred in failing to dismiss Good Hope’s claims against ALDOT on the basis of sovereign immunity.

Standard of Review

As this Court has consistently held, the writ of mandamus is a

“ ‘drastic and extraordinary writ that will be issued only when 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)). “ ‘In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review....’” Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003)).

“In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’

878 So.2d at 1148-49.”

Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.

Analysis

This Court has long held that “ ‘ “the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.” ’ ” Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 364 (Ala.2001) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala.2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971)). . “[A]n action contrary to the State’s immunity is an action over which the courts of this State lack subject-matter jurisdiction.” Larkins, 806 So.2d at 363.

There are exceptions to the State’s sovereign immunity.

“A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.”

Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005). Other actions that are not prohibited by § 14 include:

“(5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6)' actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.”

Drummond Co., 937 So.2d at 58 (emphasis omitted). In this case, ALDOT, as the party asserting the defense of immunity, bore the burden of demonstrating that Good Hope can prove no set of facts establishing one of the exceptions to the State’s sovereign immunity. See Ex parte Butts, 775 So.2d 173, 177 (Ala.2000) (“As a general rule, a motion to dismiss ‘ “for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.” ’ ” (quoting Patton v. Black, 646 So.2d 8, 10 (Ala.1994), quoting in turn Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979))).

I. Claims for Damages and Equitable Relief

This Court has repeatedly held that § 14, Ala. Const.1901, “affords the State and its agencies an ‘absolute’ immunity from suit in any court.” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004); see also Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (“Pursuant to § 14, Ala. Const, of 1901, the State of Alabama and its agencies have absolute immunity from suit in any court.”); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (“Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state-”). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So.2d 105, 110 (Ala.2006).

Because the immunity of the State is absolute, this Court has usually provided that any exceptions to that immunity extend only to suits naming the proper State official in his or her representative capacity. See Latham, 927 So.2d at 821 (laying out the exceptions to sovereign immunity). Even when an action names the proper State official in his or her representative capacity, such an action will be barred if it is, in substance, an action against the State for damages. See Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (“Additionally, a party may not indirectly sue the State by suing its officers or agents ‘ “when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.” ’ ” (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), quoting in turn State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)) (emphasis added in Patterson)).

Good Hope argues that this Court, in Milton Construction Co. v. State Highway Department, 568 So.2d 784 (Ala.1990) (‘Milton I ”), and State Highway Department v. Milton Construction Co., 586 So.2d 872 (Ala.1991) (‘‘Milton II”), allowed a plaintiff to bring a breach-of-contract action against the State Highway Department, the predecessor agency to ALDOT, notwithstanding the absolute immunity of the State agency. In Milton I, the plaintiff, Milton Construction Company, sought a judgment declaring that the disincentive clause of an incentive/disincentive-payments provision in each of two highway-construction contracts it had entered into with the Highway Department was void and unenforceable as a penalty. On these grounds, Milton asked the trial court to order the Highway Department to pay it the amounts of disincentive payments that the Highway Department had allegedly wrongfully withheld. This Court held that the disincentive clause in the highway-construction contracts was “void as a penalty and therefore unenforceable.” 568 So.2d at 791. We remanded the case to the trial court for further proceedings consistent with this Court’s opinion.

In Milton II, the Highway Department argued that the doctrine of sovereign immunity barred the trial court from ordering it to repay the money that it had withheld from the plaintiff under the void disincentive clause. This Court stated that “actions brought to force state employees or agencies to perform their legal duties” are among the “established exceptions to the protection afforded the state or its agencies by sovereign immunity.” Milton II, 586 So.2d at 875 (emphasis added). We held that sovereign immunity would not bar an action to compel State officials to perform a legal duty, and in this case the Highway Department had incurred a legal duty to pay money owed under the highway-construction contracts.

In Milton II, notwithstanding the language suggesting that the exceptions to sovereign immunity apply to State agencies, the Court held “that this lawsuit is not barred by the doctrine of sovereign immunity, because it is in the nature of an action to compel state officers to perform their legal duties and pay Milton Construction for services contracted for and rendered.” 586 So.2d at 875. The case the Court relied on in Milton II, Ex parte Carter, 395 So.2d 65, 68 (Ala.1980), restricts the sovereign-immunity exceptions, except for declaratory-judgment actions, to suits against State officials. In Milton I and Milton II, the plaintiff had named the director of the Highway Department, in his official capacity, as a party to the action, along with the Highway Department. Milton I and Milton II thus do not support Good Hope’s claim that it has a right to sue a State agency in the agency’s own right on a breach-of-contract theory, and we disavow any contrary implication of the language of those opinions. As we noted above, a State agency is absolutely immune from suit.

Good Hope also argues that it is entitled to “[a] writ of mandamus from the trial court directing ALDOT to perform its contractual and legal duties.... ” Good Hope’s answer at 15. Again, Good Hope has named as a party only the State agency; it has not named any State official. The absolute immunity of the State agency from suit bars actions for relief by mandamus or injunction. Ex parte Troy Univ., 961 So.2d at 110. Each of the cases Good Hope cites, Dampier v. Pegues, 362 So.2d 224, 225-26 (Ala.1978), Hardin v. Fullilove Excavating Co., 353 So.2d 779, 780 (Ala.1977), and State Board of Administration v. Roquemore, 218 Ala. 120, 121, 117 So. 757, 758 (1928), is a case in which a plaintiff sought the writ of mandamus directing a State official, hot the State agency itself, to act.

Because the immunity of a State agency is “absolute” under § 14, Ala. Const.1901, ALDOT is also immune from the counts in Good Hope’s complaint alleging negligence and unjust enrichment and seeking recovery under a theory of quantum meruit. See § 14, Ala. Const. 1901 (“[T]he State of Alabama shall never be made a defendant in any court of law or.equity.”); Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810-11 (Ala.2002) (dismissing an action alleging negligence against a State agency on the ground of the agency’s absolute immunity from suit). In short, there is no set of facts that will support the negligence, unjust-enrichment, and quantum meruit allegations of the complaint; therefore, Good Hope cannot prevail on those claims.

II. The Declaratory-Judgment Aspect of Good Hope’s Complaint

Good Hope argues that it is entitled to a declaratory judgment against ALDOT notwithstanding the doctrine of sovereign immunity. Implicit in this argument is the proposition that Good Hope can sue the State agency directly instead of naming as a defendant the relevant State official.

We discussed the declaratory-judgment exception to State immunity in Ex parte Town of Lowndesboro. In that case, the Town of Lowndesboro and a landowner filed a declaratory-judgment action against the Alabama Department of Environmental Management (“ADEM”) seeking to invalidate a permit issued by ADEM to operate a solid-waste landfill. Ultimately, the trial court declared the landfill permit void, and it awarded the plaintiffs interim attorney fees and expenses. ADEM appealed to the Court of Civil Appeals, which reversed the trial court’s judgment on the ground of sovereign immunity. On certio-rari review, we affirmed the judgment of the Court of Civil Appeals. Although the declaratory-judgment action named only the State agency, and not a State official, we -“express[ed] no opinion” regarding whether the underlying declaratory-judgment action was permissible- under § 14. We concluded that the award of attorney fees and costs was prohibited by the State’s sovereign immunity.

Similarly, We express no opinion regarding whether the declaratory-judgment exception allows Good Hope' to name a State agency as a defendant notwithstanding that agency’s “absolute immunity” under § 14, Ala. Const.1901. Even if we were to assume that the declaratory-judgment exception could apply to an action naming a State agency, the exception would be of no help to Good Hope. The declaratory-judgment exception to sovereign immunity applies when the de-elaratory-judgment action seeks no relief other than the “ ‘construction of a statute and how it should be applied in a given situation.’ ” Ex parte Town of Lowndesboro, 950 So.2d at 1211 (quoting Aland v. Graham, 287 Ala. at 230, 250 So.2d at 679). Good Hope’s complaint does not ask the trial court to construe a statute and declare how it should be applied. Instead, it asks the trial court to declare the liquidated-damages provision of its contracts with ALDOT illegal as an unenforceable penalty. For the first time in this Court, Good Hope argues that in its complaint it was seeking a declaratory judgment construing § 41-16-3(a), Ala.Code 1975, which reads, in pertinent part, as follows:

“Whenever the State of Alabama is a party to any contract, the contract shall be executed by all parties in a timely fashion. When a party to a contract, other than the state, has fully executed the responsibility under the contract and there remains only the payment of funds by the state, payment shall be made in a timely manner.”

Good Hope does not explain how this statute is legally relevant to its claim.

Moreover, “[s]ection 14 bars an action characterized as a declaratory-judgment action ‘when it is nothing more than an action for damages.’ ” Ex parte Town of Lowndesboro, 950 So.2d at 1211 (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 263 (Ala.2003)). It is not at all apparent how our construction of § 41-16-3(a) could benefit Good Hope unless, in construing it, we also concluded that the liquidated-damages provision in the contracts is void as a penalty or that ALDOT otherwise breached its contractual obligations. ■ A result favorable to Good Hope, however, would then directly affect a contract right of ALDOT and would “necessarily open the doors of the State treasury to legal attack.” Ex parte Town of Lowndesboro, 950 So.2d at 1211. Good Hope has gone beyond “pray[ing] for guidance both to complainant and the State officers trying to' enforce the law so as to prevent them from making injurious mistakes through an honest interpretation of the law....” Curry v. Woodstock Slag Corp., 242 Ala. 379, 381, 6 So.2d 479, 481 (1942). For this reason, even though Good Hope’s complaint is styled in part as seeking a declaratory judgment, it is nonetheless barred by the immunity provision of § 14, Ala. Const.1901.

III. Proper Parties

Good Hope has named only ALDOT, and not its director, as a party to this case. ALDOT argues that, because no State official has been named as a defendant in the action, the exceptions relating to State officials do not apply, and the action should be dismissed.

Good Hope argues that, if this Court concludes that, ALDOT is not a proper party, we should direct the trial court to allow Good Hope to amend its complaint to add the proper party. Good Hope cites Drummond Co., 937 So.2d at 58, for the proposition that this Court may order the trial court to add the director of ALDOT as the defendant and to permit the litigation to proceed accordingly. However, in Drummond Co., ALDOT had moved, as an alternative to granting its motion to dismiss, to substitute the director of the agency as a defendant. Nothing in the materials before this Court suggests that either ALDOT or Good Hope has moved to substitute the director for ALDOT. In fact, ALDOT argued in its motion to dismiss that, as a State agency, it was not the proper party to be sued, and it pointed out that Good Hope had failed to name any State official as a party. ALDOT’s supplemental submission and brief in support of motion to dismiss, tab 3 at 8.

Further, in Ex parte Blankenship, 893 So.2d 303, 306-07 (Ala.2004), this Court held that, if a trial court lacks subject-matter jurisdiction, it has no power to take any action other than to dismiss the complaint. A trial court lacks subject-matter jurisdiction if the defendant is immune under the doctrine of sovereign immunity. Larkins, 806 So.2d at 364 (“ ‘Article I, § 14, of the Alabama Constitution of 1901 thus removes subject-matter jurisdiction from the courts when an action is determined to be one against the State.’ ” (quoting Lyles, 797 So.2d at 435)). Thus, this Court cannot order the trial court to allow Good Hope to amend its complaint because the trial court lacks subject-matter jurisdiction.

Good Hope also apparently suggests that this Court may order a substitution of the parties. It cites Rule 25(d), Ala. R. Civ. P., and Rule 43(c), Ala. R.App. P., in support of its argument that its failure to add the director of ALDOT as a party to this action does not necessitate a dismissal. However, Rule 25(d), Ala. R. Civ. P., deals only with the situation in which a public official leaves office during the pendency of an action; it provides that the public official’s successor is automatically substituted as a party in the case. Rule 25(d) thus does not provide for the automatic substitution of a public official for a State agency because the plaintiff failed to join the public official as the proper party.

Good Hope also argues that Rule 43(c), Ala. R.App. P., gives this Court the authority to order a substitution of parties in this case. Rule 43(c), Ala. R.App. P., provides that “[a]n order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.” However, reading this subsection in the context of the rest of the rule suggests that it relates only to substitutions made by operation of law under Rule 43, such as when a party to an appeal dies or a public official who is a party to an appeal leaves office. It does not specifically allow this Court to substitute parties at its discretion, and Good Hope has not presented any authority suggesting that we have the authority to do so.

Conclusion

Because no exception to ALDOT’s sovereign immunity applies in this case, the trial court erred in denying ALDOT’s Rule 12(b)(1), Ala. R. Civ. P., motion to dismiss. Because the complaint purported to effect an action against the State in violation of § 14, Ala. Const.1901, the trial court acquired no subject-matter jurisdiction over this action. “ ‘ “Lacking subject matter jurisdiction [a court] may take no action other than to exercise its power to dismiss the action .... Any other action taken by a court lacking subject matter jurisdiction is null and void.” ’ ” Ex parte Blankenship, 893 So.2d at 307 (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999), quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)). AL-DOT has demonstrated a clear legal right to an order directing the trial court to dismiss Good Hope’s complaint.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . See infra note 3.

      . Although the case is styled State Board of Administration v. Roguemore, the summary of the case states that "[t]he petition is for a writ of mandamus to C.A. Moffett, as president of the state, board of administration, and to Woolsey Finnell, as president of the state highway commission, to audit and voucher for payment the petitioner’s account for hay sold and delivered to the state highway department.” 218 Ala. at 121, 117 So. at 758.

      . It may be argued that language from some of our cases would permit a declaratory-judgment action directly against the State or its agencies, because those cases do not expressly limit declaratory-judgment actions to State officials. See, e.g., Drummond Co., 937 So.2d at 58 (" 'There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not .corpe within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation.' ” (quoting Ex parte Carter, 395 So.2d at 68)); Patterson v. Gladwin Corp., 835 So.2d at 142 ("This Court has recognized several species of action that are not 'against the State' for § 14 purposes. They include: '(1) Actions brought to compel State officials to perform their legal duties. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. (3) Actions to compel' State officials to' perform ministerial acts. (4) Actions brought under the Declaratory Judgments Act, [Ala.Code 1975, § 6-6-220 et seq.], seeking construction of a statute and how it should be applied in a given situation.’ " (citations omitted) (quoting Aland v. Graham, 287 Ala. at 229-30, 250 So.2d at 679)); Aland v. Graham, 287 Ala. at 229-30, 250 So.2d at 679 ("Without professing to cover every situation that has arisen, there are four general categories of actions that we have held do not come within the prohibition of Sec. 14. (1) Actions brought to compel State officials to perform their legal duties. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. (3) Actions to compel State officials to perform ministerial acts. (4) Actions brought under the Declaratory Judgments Act, Tit. 7, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation.” (citations omitted)). But see Latham v. Department of Corr., 927 So.2d at 821 (limiting the declaratory-judgment exception to actions against State officials). The case cited by Aland as authority for the declaratory-judgment exception, Curry v. Woodstock Slag Corp., 242 Ala. 379, 381, 6 So.2d 479, 480-81 (1942), explains that, "[w]hen [a declaratory judgment] is only sought to construe the law and direct the parties, whether individuals or State officers, what it requires of them under a given state of facts, to that extent it does not violate section 14.... ” (Emphasis added.) Nonetheless, we do not here address whether the declaratory-judgment exception applies to actions against a State agency, and not against a State official, because the case before us does not require us to address that issue.

      . ALDOT apparently concedes that the exception to sovereign immunity for declaratory-judgment actions may apply to it. Petition at 17; see also Drummond Co., 937 So.2d at 58 (laying out exceptions to sovereign immunity and not limiting the exception for declaratory-judgment actions to State officials).

      . Rule 25(d), Ala. R: Civ. P., provides:
      "(1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
      "(2) A public officer who sues or is sued in an official capacity may be described as a party by the officer’s official title rather than by name; but the court may require the officer's name to be added.”

      . " 'Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Birmingham News Co. v. Horn, 901 So.2d 27, 78 (Ala.2004) (quoting Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).


author: SMITH, Justice.

text:
    Ex parte Bobby W. MONAGHAN. (In re Bobby W. Monaghan v. State of Alabama).
    1061259.
    Supreme Court of Alabama.
    July 20, 2007.
    Shanon Haack, Montgomery, for petitioner.
   SMITH, Justice.

The petition for the writ of certiorari is denied. Our denial of the petition is without prejudice to the defendant’s right to file a Rule 32, Ala. R.Crim. P., petition.

WRIT DENIED.

SEE, WOODALL, STUART, and PARKER, JJ., concur. COBB, C.J., recuses herself.


text:
    Richard CARRAWAY, as executor of the estate of Shirley Carraway v. BEVERLY ENTERPRISES ALABAMA, INC., et al.
    1051409.
    Supreme Court of Alabama.
    July 20, 2007.

      Chris N. Galanos, Mobile; and Charles R. Godwin, Timothy J. Godwin, and Gordon B. Godwin, Atmore, for appellant.
    Kathleen Cobb Kaufman and Andrew C. Clausen of Alford, Clausen & McDonald, LLC, Mobile, for appellees.
   SEE, Justice.

Facts and Procedural History

On May 5, 2006, Richard Carraway met with Myrtle Seals, the admissions coordinator of a nursing home located in Foley, owned and operated by Beverly Enterprises Alabama, Inc., doing business as Beverly Healthcare-Foley. Richard executed a number of documents on behalf of his sister, Shirley Carraway, as her authorized representative. Those documents included a “Resident Admission Agreement” (“the admission agreement”) and a “Resident and Facility Arbitration Agreement” (“the arbitration agreement”). The next day, Shirley Carraway was admitted into the nursing home.

The admission agreement states:

“If the resident is unable to make decisions for himself or herself, an Agent and/or Legal Representative may be available to make certain decisions on behalf of the Resident. These terms are defined below:
“AGENT — For the purposes of this Agreement, an Agent is a person who manages, uses, or controls funds/assets that may be legally used to pay the Resident’s charges or who otherwise acts on behalf of the Resident. The Agent’s financial obligations are limited to the amount of funds received or held by the Agent for the Resident. The Agent does not assume responsibility for payment of the costs of the Resident’s care out of the Agent’s personal funds. However, the Agent is contractually bound by the terms of this agreement and may become liable for failure to perform duties under the Agreement. THE AGENT IS REQUIRED TO SIGN THIS AGREEMENT FOR ADMISSION AND AGREES TO DISTRIBUTE TO THE FACILITY, FROM THE RESIDENT’S INCOME OR RESOURCES, PAYMENT WHEN. DUE FOR ITEMS/SERVICES PROVIDED TO THE RESIDENT. The Agent is required to produce financial documentation as proof of the Resident’s ability to pay for charges when due. Wherever this Agreement refers to the Resident’s financial obligation under this agreement, ‘Resident’ shall be construed to include the obligations of Agent to act on behalf of Resident.
“LEGAL REPRESENTATIVE — For the purposes of this Agreement, Legal Representative is defined as a person recognized under State law as having the authority to make health care and/or financial decisions for the Resident. The Legal Representative may or may not be court appointed. A Legal Representative may be an attorney-in-fact acting under a durable power of attorney for health care[,] guardian, conservator, next-of-kin, or other person allowed to act for the Resident under State law. If Legal Representative status has been conferred by a court of law or through appointment by the Resident, verification of such status must be provided to the Facility at the time of Admission.”

(Emphasis, capitalization, and bold typeface in original.) The admission agreement also contains the following provision:

“SOLE AGREEMENT — This Agreement, along with any other documents attached or included by reference, is the only agreement between the Facility and parties. Changes to this Agree- . ment are valid only if made in writing and signed by all parties. If changes in State or Federal law make any part of this Agreement invalid, the remaining terms shall stand as a valid agreement.”

The arbitration agreement states that it is an agreement between Beverly Healthcare-Foley and the “ ‘Resident’ or ‘Resident’s Authorized Representative,’ hereafter collectively referred to as ‘Resident.’ ” The arbitration, agreement conspicuously states that it is “NOT A CONDITION OF ADMISSION — READ CAREFULLY.” The arbitration agreement states: “[U]pon execution, this Arbitration Agreement becomes part of the Admission Agreement.” Just above the signature lines, the arbitration agreement states:

“The undersigned certifies that he/she has read this Arbitration Agreement and that it has been fully explained to him/ her, that he/she understands its contents, and has received a copy of the provision and that he/she is the Resident, or a person duly authorized by the Resident or otherwise to execute this agreement and accept its. terms.”

The signature line for the “Resident” has been left blank. The document provides that “[i]f the resident is unable to consent or sign this provision because of physical disability or mental incompetence or is a minor and this provision is being signed by an' authorized representative,” the spaces left for “Date,” “Relationship to Resident,” “Signature [of Authorized representative],” and “Witness” are to be completed. Richard signed his name on the line reserved for “Authorized representative,” and Myrtle Seals signed her name on the lines for “Witness” and on behalf of the facility as “Authorized representative.”

On May 30, 2006, shortly after she was admitted as a resident into the nursing home, Shirley executed a durable power of attorney, naming Richard as her attorney-in-fact. Shirley died while she was a resident at the Beverly Healthcare-Foley nursing home, and Richard now seeks to bring a wrongful-death action against, among others, Beverly Enterprises Alabama, Inc., doing business as Beverly Healthcare-Foley. Beverly Enterprises Alabama, Inc., doing business as Beverly Healthcare-Foley, Beverly Enterprises Alabama, Inc., Beverly Health and Rehabilitation Services, Inc., and three of the four individual' defendants (“the Beverly Enterprises defendants”) moved to compel arbitration. The trial court granted that motion, and Richard now appeals that ruling.

Issue

The issue is whether the trial court erred in finding that Richard Carraway’s wrongful-death action against the Beverly Enterprises defendants is subject to the arbitration agreement.

Standard of Review

“We review the trial court’s grant or denial of a motion to compel arbitration de novo.” Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052 (Ala.2007).

Analysis

Richard argues that the Beverly Enterprises defendants have not met their initial burden of proving the existence of a valid arbitration agreement between Shirley Carraway and Beverly Healthcare-Foley because Shirley did not sign the arbitration agreement herself. The, agreement states: “If the resident is unable to consent or sign this provision because of physical disability or mental incompetence or is a minor and this provision is being signed by an authorized representative, complete the following.” Signature lines indicating the relationship of the signatory to the resident are provided below this language. Richard contends that because he signed the arbitration agreement on Shirley’s behalf, it is valid only if Shirley was physically unable to sign the agreement herself or if she was mentally incompetent.

We disagree. Just as Richard signed all the other documents relating to Shirley’s admission into the nursing home on Shirley’s behalf, Richard signed the arbitration agreement on’ Shirley’s behalf expressly as an “authorized representative.” Apparent authority “is implied where the principal passively permits the agent to appear to a third person to have the authority to act on [her] behalf.” Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So.2d 859, 861 (Ala.Civ.App.1983). “It is not essential that the right of control be exercised so long as that right actually exists.” Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350, 1352 (Ala.1977). There is no evidence indicating that Shirley had any objection to Richard’s acting on her behalf in admitting Shirley to the nursing home. On the contrary, the evidence suggests that Shirley approved of her brother’s acting on her behalf. A few weeks into Shirley’s residency at the nursing home, she executed a power of attorney, giving Richard further authority to act on her behalf. The arbitration agreement, did not call for the signature of a legal representative; instead, it provided that “a person duly authorized by the Resident” could sign the agreement on the resident’s behalf.

Richard next argues that the arbitration agreement is not effective because, he says, it was not “executed in accordance with ... the [‘JSole Agreement^] provisions of the Resident Admission Agreement.” The “sole agreement” provision in the admission agreement states, in pertinent part: “This Agreément, along with any documents attached or included by reference, is the only agreement between the Facility and parties. Changes to this Agreement are valid only if made in writing and signed by all parties.” Richard cites Blue Cross & Blue Shield of Alabama v. Woodruff, 803 So.2d 519 (Ala.2001), as authority for his claim that the arbitration agreement violates the “sole agreement” provision. In Blue Cross, Vera Brooks had entered into a contract with Blue Cross for insurance coverage. According to its terms, the contract could “only be changed by written amendments, endorsements, and revisions signed by one of our officers and sent to [the policyholder].” Blue Cross attempted to amend the contract by adding an arbitration provision; however, there was no evidence indicating that the amended contract had been signed by one of Blue Cross’s officers and had been sent to the policyholder. When a dispute arose, Blue Cross moved to compel arbitration according to the arbitration provision in the amended contract. This Court affirmed the trial court’s order denying Blue Cross’s .motion to compel arbitration because in amending the original contract between the parties to add the arbitration provision, the drafters had not complied with the procedure set forth in the original contract for amending the contract. The arbitration provision was therefore ineffective.

The present case is readily distinguishable from Blue Cross. Here, the parties complied with the requirements in the “sole agreement” provision for amending the admission agreement. Under the terms of the admission agreement, changes to the admission agreement are valid “if made in writing and signed by all parties.” The arbitration agreement, a written document, was signed by both the admissions coordinator, on behalf of Beverly Healthcare-Foley, and Richard, as Shirley’s authorized representative. The arbitration agreement expressly states that “[t]he parties to this Arbitration Agreement acknowledge and agree that upon execution, this Arbitration Agreement becomes part of the Admission Agreement....” Thus, neither Blue Cross nor the record supports Richard’s argument that the arbitration agreement conflicts with the “sole agreement” provision in the admission agreement.

Richard’s final argument is that the arbitration agreement is invalid because, he argues, it is unconscionable. In particular, Richard alleges that the arbitration agreement is unconscionable for two reasons: first, because the Beverly Enterprises defendants withheld material facts from Richard, and, second, because the actual terms of the arbitration agreement are unconscionable. This Court has stated that “ ‘ “[ujnconscionability is an affirmative defense, ... and the party asserting the defense bears the burden of proof.” ’ ” Steele v. Walser, 880 So.2d 1123 (Ala.2003) (quoting Conseco Fin. Corp. Alabama v. Boone, 838 So.2d 370, 373 (Ala.2002), quoting in turn Fleetwood, Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000)). The test for determining whether an agreement is unconscionable is “ ‘ “whether there are (1) terms that are grossly favorable to a party that has (2) overwhelming bargaining power.” ’ ” Steele, 880 So.2d at 1129 (quoting Gayfer Montgomery Fair Co. v. Austin, 870 So.2d 683, 688-89 (Ala.2003), quoting in turn Leonard v. Terminix Int’l Co., 854 So.2d 529, 538 (Ala.2002)).

Richard alleges that the Beverly Enterprises defendants withheld material facts concerning the rules governing the arbitration process, including fee amounts, discovery limitations, admissibility of evidence, and damages awards. The arbitration agreement states that “all claims, disputes, and controversies ... relating in any way to the Admission Agreement .. .• shall be resolved exclusively by binding arbitration ... in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process.” This sentence references a footnote, which states: “Information about the National Arbitration Forum, including a complete copy of the Code of Procedure, can, be obtained from the Forum at 800^74-2371, by fax at 651— 604-6778 or toll-free fax at 866-743-4517, or on the internet at http://www.arbforum. com.” In addition to the explicit reference to the arbitration terms of the National Arbitration Forum Code of Procedure and directions as to how to access those terms, the arbitration agreement expressly informs the signatory of his right to have the arbitration agreement reviewed by a lawyer:

“The Resident understands that (1) he/ she has the right to seek legal counsel concerning this Arbitration Agreement, (2) that execution of this Arbitration Agreement is not a precondition to admission or the furnishing of services to the Resident by the Facility, and' (3) this Arbitration Agreement may be rescinded by written notice to the Facility from the Resident within thirty days of signature. If not rescinded within thirty days, this Arbitration Agreement shall remain in effect for all subsequent stays at the Facility, even if the Resident is discharged from and readmitted to the Facility.”

“There is a general duty on the part óf a person to read the documents' received in connection with any transaction.” Brown v. St. Vincent’s Hosp., 899 So.2d 227, 242 (Ala.2004). “ ‘ “[Ojrdinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby.” ’ ” Tyler v. Williams, 963 So.2d 76, 78 (Ala.2007) (quoting Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999), quoting in turn Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991)). Richard has thus failed to show that the Beverly Enterprises defendants withheld information.

Richard also claims that some of the terms set out in the National Arbitration Forum Code of. Procedure are “grossly favorable” to the Beverly Enterprises defendants. Steele, 880 So.2d at 1129. He argues that the costs in initiating arbitration are exorbitant and prohibitive, that the process of selecting an arbitrator favors the Beverly Enterprises defendants and that, “[i]f the NAF Code of Procedure is read to restrict the arbitrator’s authority to award punitive damages,” then it is unconscionable. Other than stating the terms themselves of the arbitration agreement, Richard offers no authority establishing the unreasonableness of those terms. Richard instead relies on Sloan Southern Homes, LLC v. McQueen, 955 So.2d 401 (Ala.2006). In Sloan, this Court held that the arbitration clause was not unconscionable because the party was unable to demonstrate that the terms of the arbitration clause were grossly unfavorable. Richard has failed to show that the terms of the arbitration agreement are grossly favorable to the Beverly Enterprises defendants.

Moreover, Richard has not shown that the Beverly Enterprises defendants possessed “overwhelming bargaining power.” Steele, 880 So.2d at 1129. In fact, the execution of the arbitration agreement was expressly “not a condition of admission,” and, under the terms of the arbitration agreement, it could have been “rescinded by written notice to the Facility from the Resident within thirty days of signature.” Therefore, Richard has failed to “carry [his] burden in establishing that the arbitration agreement was unconscionable.” Steele, 880 So.2d at 1130.

Conclusion

The Beverly Enterprises defendants have satisfied their burden of showing that a valid arbitration agreement exists. We conclude that the trial court did not err in granting the Beverly Enterprises defendants’ motion to compel arbitration in accordance with the arbitration agreement.

AFFIRMED.

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


author: STUART, Justice. LYONS, Justice

text:
    Ex parte Jammy BELL (In re Jammy Bell v. State of Alabama).
    1060926.
    Supreme Court of Alabama.
    July 27, 2007.

      Jammy Bell, pro se.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and John M. Porter, asst. atty. gen., for respondent.
   STUART, Justice.

On February 25, 2005, Jammy Bell filed a postconviction petition pursuant to Rule 32, Ala. R.Crim. P., challenging the validity of his conviction for second-degree receipt of stolen property and his sentence of 25 years in prison. After a hearing, the circuit court denied his petition.

Bell appealed the circuit court’s denial of his petition to the Court of Criminal Appeals. Before that court, Bell argued, among other issues, that the circuit court erred in denying his claim that the State had failed to prove venue and that, therefore, the trial court did not have jurisdiction to enter the judgment and to impose the sentence. The Court of Criminal Appeals, in an unpublished memorandum, held that the claim was nonjurisdictional and precluded .because Bell could have raised it at trial or on appeal, but did not. See Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Bell v. State (No. CR-05-2319, February 23, 2007), •— So.2d - (Ala.Crim.App.2007) (table).

Bell petitioned this Court for a writ of certiorari. In his petition, he alleged that the holding of the Court of Criminal Appeals that his claim that the State had failed to prove venue was nonjurisdictional conflicted with this Court’s statement in Ivey v. State, 821 So.2d 937, 950 (Ala.2001), that “proof of venue is jurisdictional.” We granted the writ to clarify whether an issue of venue in a criminal case is jurisdictional.

This Court in Ex parte Culbreth, 966 So.2d 910 (Ala.2006), addressed the difference between a jurisdictional requirement and a venue limitation, stating:

“ ‘Jurisdiction is “[a] court’s power to decide a case or issue a decree.” ... In deciding whether [a petitioner’s] claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the [requisite] constitutional and statutory authority Ex parte Seymour, 946 So.2d 536 (Ala.2006). Venue, in contrast, addresses ‘[t]he county or other territory over which a trial court has jurisdiction.’ . Black’s Law Dictionary 1591 (8th ed. 2004). ...
“Venue can be waived, and any objection to improper venue is waived if not timely raised.”

966 So.2d at 911-912.

In Ex parte Seymour, 946 So.2d 536 (Ala.2006), we recognized the subject-matter jurisdiction of the circuit court, stating:

“Under the Alabama Constitution, a circuit court ‘shall exercise general jurisdiction in all cases except as may be otherwise provided by law.’ Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that ‘[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ....’§ 12-11-30, Ala.Code 1975.”

946 So.2d at 538.

Bell was convicted of the offense of second-degree receiving stolen property, a Class C felony. See § 13A-8-18(b), Ala. Code 1975. Thus, the circuit court had subject-matter jurisdiction over Bell’s trial.

Venue, on the other hand, does not impact a circuit court’s subject-matter jurisdiction; it limits the territory in which the case can be tried. Section 15-2-2, Ala.Code 1975, provides: “Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed.” Thus, § 15-2-2 identifies in which trial court a case can be prosecuted, but it does not limit the jurisdiction of the trial court. This Court recognizes that there are cases, including Ivey v. State, supra, that state that “proof of venue is jurisdictional”; however, our holdings in Ex parte Seymour and Ex parte Culbreth implicitly overruled those decisions insofar as their statements regarding the jurisdictional nature of venue are concerned.

Bell’s claim that the State did not prove venue is a claim addressing whether the State’s evidence satisfied § 15-2-2, Ala.Code 1975, i.e., whether the State proved that the offense Bell is accused of committing occurred in Washington County so that venue is appropriate there; it is not a claim that impacts the trial court’s jurisdiction. Therefore, the Court of Criminal Appeals properly concluded that Bell’s claim was nonjurisdictional. Additionally, because a challenge to venue is waivable, see Ex parte Watts, 435 So.2d 135, 137 (Ala.1983), and Sciscoe v. State, 606 So.2d 202 (Ala.Crim.App.1992), the Court of Criminal Appeals’ application of the procedural bars that the claim “could have been but was not raised at trial,” see Rule 32.2(3), Ala. R.Crim. P., and that the claim “could have been but was not raised on appeal,” see Rule 32.2(5), Ala. R.Crim. P., was proper.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

SEE, WOODALL, BOLIN, PARKER, and MURDOCK, JJ., concur.

LYONS and SMITH, JJ., concur in the result.

COBB, C.J., recuses herself.

LYONS, Justice

(concurring in the result).

Although I concur in the result reached by the main opinion, I cannot join the main opinion insofar as it states that Ex parte Seymour, 946 So.2d 536 (Ala.2006); and Ex parte Culbreth, 966 So.2d 910 (Ala.2006), implicitly overruled Ivey v. State, 821 So.2d 937 (Ala.2001), to the extent Ivey stated that venue in a criminal case was jurisdictional. I would distinguish, rather than overrule, Ivey because Ivey does not deal at all with waiver. The defendant in Ivey moved for a judgment of acquittal in the trial court based on improper venue, thereby preserving the issue for appellate review.

I respectfully submit that the case we should expressly overrule is Frank v. State, 40 Ala. 9 (1866), in which a divided Court upheld a challenge to venue raised for the first time on appeal. The holding in Frank was limited in a subsequent case, as noted in Elsberry v. State, 52 Ala. 8, 9-10 (1875):

“It is now insisted here, but the point was not brought to the attention of the court below, that no venue was proved. The answer to this is furnished by the opinion of this court in Huggins v. The State, 41 Ala. 393 [ (1868) ]: ‘There was evidence in the court below reasonably conducing to prove the venue. We do not understand the decision in Frank v. The State (40 Ala. 9) as going to the extent of holding that this court will pass upon the sufficiency of the evidence of venue, when no question was raised in the court below. That decision pertains to a case when it affirmatively appeared that there was no proof tending to show venue, and to such cases its authority and reasoning must be confined.’ ”

See also Woodson v. State, 170 Ala. 87, 54 So. 191 (1910) (Mayfield, J., dissenting), for a discussion of the continued vitality of Frank, albeit as limited by Huggins v. State, 41 Ala. 393 (1868).

The former Court of Appeals in King v. State, 16 Ala.App. 341, 343, 77 So. 935, 937 (1918), expressed a view wholly inconsistent with Frank:

“We are not unmindful of that line of decisions in other states which hold that the statutes localizing actions are deemed to go to the jurisdiction of the trial court, but, where this has been decided, it is universally held that the question cannot be waived by consent, while our courts, both by rule of procedure and decision, have consistently held that the question of venue, both in civil and criminal matters, not only may be waived by consent, but is lost by a failure to make proper and timely objections on the trial, and that judgments of conviction rendered under such circumstances are valid and binding. The rule is that where the court has jurisdiction of the person and the subject-matter, it is competent and clothed with authority to decide all questions that may arise in the particular case. 1 Bailey on Habeas Corpus, p. 168. Any other conclusions than the foregoing would, in our opinion, produce a conflict of jurisdiction over the right to the custody of the person of a defendant, leading to confusion and resulting in the defeat of the due administration of the criminal law. 12 R.C.L. 1218.”

(Emphasis added.) My research has not disclosed an equally unequivocal statement from this Court on the question of susceptibility of venue in a criminal case to waiver by failure to assert it in the trial court, until the main opinion today.

SMITH, J., concurs.

      . In Lewis v. State, 461 So.2d 9, 10 (Ala.1984), this Court found no waiver by the defendant’s failure before trial to assert improper venue. The Court quoted with approval from the Comment to Temporary Rule 16.4, Ala. R.Crim. P. (now Rule 15.4, Ala. R.Crim. P.) (" 'For example, the question of venue may be "[one of] fact so entwined with the merits ... that a decision should not be made prior to trial but postponed until trial." United States v. Callahan, 300 F.Supp. 519 (S.D.N.Y.1969).’" (emphasis added)). Although Lewis is silent on the procedural facts relating to activity in the trial court challenging venue, I infer from the Court's reliance on the aforementioned Comment that an objection to venue was made at trial, as was the case in Ivey.


author: PITTMAN, Judge.

text:
    Dana Truxillo HENDERSON v. Damon Michael HENDERSON.
    2060132.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      Thomas R. Boiler, Mobile, for appellant.
    Bayless E. Biles and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellee.

      . The mother also contends that the federal Servicemembers Civil Relief Act, 50 U.S.C.App. § 501 et seq., classifies her as a “dependent” and, through some unexplained means, prevents the enforcement of the Act in this factual setting. The purpose of the federal act is (1) to enable servicemembers "to devote their entire energy to the defense needs of the Nation” and (2) to temporarily suspend judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service. 50 U.S.C.App. § 502. Assuming, without deciding, that the protection afforded service members under the federal act could be extended to the mo.ther, both the mother and Jester were present at the proceeding, and neither of them presented any evidence to indicate that Jester had been pulled away from his duty with the Coast Guard to attend the proceeding so as to necessitate a temporary suspension of the relocation action.
      Moreover, her argument that the application of the Act had the effect of depriving her the protection of the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), is meritless because the trial court did not modify its previous custody judgment.

   PITTMAN, Judge.

Dana Truxillo Henderson (“the mother”) appeals from a judgment of the Baldwin Circuit Court granting the petition of Damon Michael Henderson (“the father”) to prohibit her relocation to Kodiak, Alaska, with the parties’ two minor children, twin daughters (“the children”) born of the parties’ marriage on July 15,1998.

In October 28, 2003, a judgment was rendered divorcing the father and the mother and awarding the parties joint legal custody of the children, with the mother having sole physical custody. The father and the mother then married other people. Ronnie Jester, the mother’s current husband and an active servieemember in the United States Coast Guard, received orders from his superiors in the Coast Guard requiring him to relocate to Kodiak, Alaska. The mother informed the father that she planned to relocate to Alaska with the children and Jester. The father filed a petition in the trial court seeking to prohibit that relocation and seeking custody; the mother filed an answer. The trial court held a hearing on the matter, during which it heard ore tenus evidence.

The evidence adduced at that hearing indicated that the father, his current wife, and the children’s paternal grandparents had been very involved in the children’s lives and that they would not be able to maintain that same level of involvement if the mother were allowed to relocate to Alaska with the children. The father testified that he had visited the children, on average, between 25 and 26 days each month and had paid more money in child support than the amount required by the divorce judgment. The father testified that he had regularly driven the children to the paternal grandmother’s house before school to eat breakfast, had driven them to school after breakfast, and had picked them up after school. The father stated that he had been very involved in the children’s education, had worked with their teachers, and had taken the children to various after-school activities (including dance classes and gymnastics classes). The father and his current wife had also taken them on numerous vacations, e.g., trips to the Disney World amusement park in Florida, to beaches, and to ski destinations. The paternal grandfather testified that he and the paternal grandmother have also had a special relationship with the children, that they had been involved in the children’s lives since their birth, and that he did not feel that it was in the children’s best interests to move to Alaska. The mother agreed that the father and the paternal grandparents were wonderful people and had “spent a lot of time” with the children.

The mother admitted that if she were allowed to move to Alaska — a move more than 4,800 miles away from the father and paternal grandparents — -it would be impossible for the father and the paternal grandparents to maintain the same level of involvement with the children or to exercise weekend visitation with them. Evidence further indicated that it would take approximately 24 hours to travel one way by airplane from Kodiak, Alaska, to Baldwin County, Alabama, and that airfare would be approximately $1,000 per person. Additionally, the mother testified that she would remain in Alabama if the court did not allow her to relocate to Alaska with the children. Jester testified that if the children were allowed to relocate with him and the mother to Alaska, they would five on a Coast Guard base where the mother would not .be required to work and could stay at home with the children.

At the conclusion of the testimony, the trial court stated:

“Considering the closeness of the ties here in Alabama and the newness of ties that would take these girls, to Alaska, I am going to require that the [children] remain here. Since [the mother] is amenable to being here with the girls, then I will deny the petition to change custody so that [the mother] and [the children] may remain together.”

The trial court entered a judgment granting the father’s petition to prohibit the mother’s relocation to Alaska with the children, but denying the father’s petition seeking custody. The mother filed a motion to alter, amend, or vacate the judgment; the trial court denied that motion. The mother timely appealed to this court.

The mother first contends that the trial court erred in applying the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, because, she claims, the exception to the application of the Act for a person on active military service also applies to her since her current husband has been transferred to Alaska pursuant to an involuntary military order.

Our standard of review is well settled. A trial court’s judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). However, when an appellate court is presented with an issue of law, we review the judgment of the trial court as to that issue de novo. Ex parte Perkins, 646 So.2d 46 (Ala.1994).

To support her contentions, the mother relies on § 30-3-162(a), Ala.Code 1975, a portion of the Act, which states:

“Except as provided in subsection (c) of Section 30-3-165, this article shall not apply to a person who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order from the government.”

The applicable rules of statutory construction are clear:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ”

Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). See also Kimberly-Clark Corp. v. Eagerton, 445 So.2d 566 (Ala.Civ.App.1983).

Had the legislature intended to include within the scope of § 30-3-162(a) both a person who is on active duty in the armed forces and that person’s spouse, it would have been simple for the legislature to do so. Instead, the legislature stated that the exception to the Act shall apply only to “a person who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order from the government.” The use of the phrase' “a person who is on active military service in the Armed Forces” in the Act indicates that the legislature intended for the exception to apply only to the person serving in the Armed Forces. In addition, the Act further requires (by using the conjunction “and”) that the “person” must be “transferred or relocated pursuant to a non-voluntary order from the government.” The mother has not herself been required to relocate pursuant to a nonvo-luntary order from the government; that relocation order only applied to Jester. In fact, the mother testified that if the court did not allow her to relocate with the children, then she would remain in Alabama, which demonstrates that, unlike Jester, the mother can choose to remain in Alabama. Therefore, we conclude that the mother’s argument is without merit.

The mother also contends that even if the Act applies to her, the trial court acted outside its discretion by not permitting her to relocate the children to Alaska without first considering the factors set out in § 30-3-169.3, Ala.Code 1975.

Section 30-3-169.3, Ala.Code 1975, entitled “Change of custody,” states, in pertinent part:

“(a) Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
“(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child’s life.
“(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
“(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
“(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
“(5) The feasibility of preserving the-relationship between the non-relocating person and the child through suitable visitation ■ arrangements, considering the logistics and financial circumstances of the parties.
“(6) The preference , of the child, taking into consideration the age and maturity of the child.
“(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
“(8) The extent to which custody and visitation rights have been allowed and exercised.
“(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
“(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
“(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
“(12) Wdiether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
“(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce -the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
“(14) The stability of the family unit . of the persons entitled to custody of and visitation with a child. ,
. “(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
“(16) Evidence relating to a history of domestic violence or child abuse.
“(17) Any other factor that in the opinion of the court is material to the general issue or .otherwise provided by law.
“(b) The court making a determination of such issue shall enter an order granting the objection to the change or proposed change of principal residence of a child, denying the objection to the change or proposed change of principal , residence of a child, or any other appropriate relief based upon the facts of the case.”

(Emphasis added.)

As stated in § 30-3-169.3, Ala.Code 1975, the trial court shall take into account the factors referred to by the mother when determining whether a change of principal residence of a minor child should cause a change in custody of that child. In other words, § 30-3-169.3.only requires the trial court to consider those factors when determining whether a change of the principal residence should cause a change in custody. Thus, the trial court was not required to consider those factors in its determination whether to allow a change in the principal residence of the children. The circumstances requiring consideration of the factors set out in § 80-8-169.3, Ala. Code 1975, were not present.

Moreover, the Act specifically sets forth a rebuttable presumption that a change of principal residence of children would not be in their best interests. Section 30-3-169.4, Ala.Code 1975, entitled “Burden of proof,” states:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

(Emphasis added.)

Because the father objected to the change in residence and had not been found to have committed domestic violence or child abuse, it was the mother’s burden to rebut the presumption that the change in residence she was seeking for the children would not be in the children’s best interests. Although evidence was presented that the mother would be able to stay at home with the children on the Coast Guard base in Alaska, no evidence was presented regarding the quality of the school system, the existence and quality of extracurricular activities in which the children could participate, the number of people other than the wife and Jester with whom the children might form relationships, or the quality of the living conditions. Evidence was adduced at trial indicating that the father and the paternal grandparents had had a very close relationship with the children and that moving to Alaska would impede those relationships. Thus, we cannot conclude that the trial court acted outside its discretion in not permitting the mother to relocate the children to Aaska.

Based on the foregoing facts and authorities, the trial court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.