author: SMITH, Justice.

text:
    Billy Ray JORDAN v. Donald SIEGELMAN, Governor of the State of Alabama; Henry Mabry, Finance Director of the State of Alabama; Joseph Borg, director of the Alabama Securities Commission; Harold Kushner, chairman of the Alabama Securities Commission; William Pryor, Attorney General of the State of Alabama; Robert Childree, Comptroller of the State of Alabama; and Lucy Baxley, Treasurer of the State of Alabama.

    1040354.
    Supreme Court of Alabama.
    July 21, 2006.

      J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellant.
    Troy King, atty. gen., and Scott L. Rouse, asst. atty. gen., for appellees.

      . Donald Siegelman, Henry Mabry, William Pryor, and Lucy Baxley no longer hold the offices they held when Jordan filed the complaint in this action. Rule 25(d)(1), Ala. R. Civ. P., provides:
      "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.”

        See also Rule 43(b), Ala. R.App. P.

   SMITH, Justice.

Billy Ray Jordan appeals from a summary judgment entered in favor of Joseph Borg and Harold Kushner, director and chairman, respectively, of the Alabama Securities Commission (“the ASC”), the Governor, the attorney general, the state comptroller, the state finance director, and the state treasurer (referred to hereinafter collectively as “the State officials”), in an action challenging the legislature’s appropriation, for use in the State general fund, of funds Jordan alleged were “earmarked” for the ASC. We affirm.

Facts and Procedural History

On September 10, 2002, Jordan filed the present action in the Montgomery Circuit Court. In his complaint, Jordan asserted that he had standing to bring his action because of his status as' a taxpayer and citizen of the State of Alabama, and he purported to act on behalf of a class consisting of all taxpayers and citizens of the State of Alabama.

Jordan alleged in his complaint that “[i]n order to fund its operations, the Alabama Securities Commission charges and collects certain fees authorized by the Alabama Legislature. These fees are specifically earmarked [by statute] for the use and benefit of the Alabama Securities Commission.” Jordan asserted, however, that “over the last several years” the State officials had “raid[ed]” funds earmarked for the ASC by transferring those funds to the State general fund through general appropriations bills passed by the legislature. Jordan alleged that the transfer of the earmarked funds to the general fund was “in clear violation of the Alabama Constitution and Alabama law, as set forth in Childree v. Hubbert, 524 So.2d 336 (Ala. 1988).” Jordan sought a judgment declaring that “the transfers of the [ASC’s] earmarked funds to the general fund in a general appropriations bill [were] unconstitutional, void, illegal, and unenforceable,” and he asked the court to permanently enjoin the “transfer of earmarked funds of the [ASC] to the general fund” and to require the State officials to “repay all funds earmarked to the [ASC] which were transferred to the general fund in any general appropriations bill, along with interest thereon.” Jordan also asked the court to award a “reasonable” attorney fee.

Jordan and the State officials filed cross-motions for a summary judgment. The trial court entered a summary judgment in favor of the State officials on October 22, 2004. Among other things, the trial court held that Jordan did not have standing as a taxpayer to bring the action.

Standard of Review
“ ‘This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. “[SJubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).’ ”

Prince v. Poole, 935 So.2d 431, 442 (Ala. 2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004)).

Analysis

The State officials contend that the trial court properly entered a summary judgment in their favor because, they argue, Jordan does not satisfy the test for taxpayer standing as stated in Broxton v. Siegelman, 861 So.2d 376, 383-86 (Ala.2003). We agree.

Broxton involved a challenge to the expenditure of funds for proposed changes to landscaping in front of the State Capitol. Broxton, whose action was based on his status as a resident and taxpayer of Alabama, argued that expenditures by the State for the proposed changes would violate a statutory prohibition. 861 So.2d at 376-77. This Court determined that Brox-ton did not have standing to bring a taxpayer action because the challenged expenditures were ultimately to be made from federal funds rather than from state funds. 861 So.2d at 385.

In discussing the development of the concept of taxpayer standing under Alabama law, this Court in Broxton quoted Hunt v. Windom, 604 So.2d 395 (Ala.1992):

“‘[I]n Zeigler v. Baker, 344 So.2d 761 (Ala.1977), ... this Court held that [a taxpayer’s challenge] would He and stated:
“ ‘ “In a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Court of County Revenues v. Richardson, 252 Ala. 403, 41 So.2d 749 (1949); Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937); Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938); Travis v. First Nat. Bank of Evergreen, 210 Ala. 620, 98 So. 890 (1924); Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). The right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned. Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939) (‘... this Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.’); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933); Turnipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933). The latter two cases dealt with the constitutionality of disbursements, while Goode involved expenditures to be made under purported statutory authority. The Supreme Court of Illinois wrote to this principle in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915):
< “ ‘-\/ye have repeatedly held that taxpayers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the taxpayer’s equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.’ ”
“ ‘344 So.2d at 763-64.
“ ‘More recently, in Lee v. Bronner, 404 So.2d 627 (Ala.1981), the Court again rejected the argument that only the Governor or the attorney general may bring an action to challenge the illegal expenditure of state funds, and in that case the Court quoted from Zeigler v. Baker, supra:
“ ‘ “ ‘If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer’s attack which preserves the public treasure.’ ”
“ ‘404 So.2d at 629 (Zeigler was quoting from Department of Administration v. Horne, 269 So.2d 659 (Fla.1972)).’ ”

Broxton, 861 So.2d at 384-85 (quoting Hunt, 604 So.2d at 396-97 (emphasis added in Hunt)).

Crucial to the determination that Brox-ton lacked standing was this Court’s conclusion that “it is [the] liability to replenish the public treasury through the payment of taxes that gives a plaintiff in a taxpayer’s action standing.” 861 So.2d at 385. Although state funds were used initially to make the expenditures Broxton challenged, all of those expenditures ultimately were reimbursed with federal funds. Consequently, this Court held that no state funds were expended and that Broxton, as a taxpayer, therefore did not have standing to sue because he would “not face the liability of replenishing the state funds.” 861 So.2d at 385.

Broxton is controlling in Jordan’s case. Jordan does not challenge the following portions of the trial court’s summary-judgment order:

“The [ASC] is a self-funded state agency, collecting fees for the registration of securities, brokers, and dealers who sell securities, and investment advisers and representatives who, for a fee, advise clients concerning the purchase of securities. The [ASC] also assesses and collects fines from entities and individuals whom it finds guilty of violating the registration provisions of [the act establishing the ASC].... Over a number of years, the amount of revenue [generated from fees and fines collected by the ASC] that has been designated for use by the [ASC] has not been spent by the [ASC] and has been held in a ‘reserve’ account. On almost an annual basis, the Legislature has taken, or ‘appropriated,’ certain of those surplus funds for use by the general fund in its efforts to fund other state agencies.
“No party has alleged that any of the money so appropriated has been misspent or wasted by either the [ASC] or any other named defendant.... [Jordan] merely challenges the method by which the Legislature has acquired the funds from the [ASC] in order to provide more revenue for the state’s general fund.
“It is undisputed that the [ASC] receives no revenue from any tax source and no money from the general fund. No tax dollars are expended by the [ASC] in its operations, no tax dollars are affected by any transfer of funds from the [ASC’s] surplus fund to the general fund.”

(Emphasis added.) Thus, the alleged “expenditures” Jordan challenges — that is, the transfer of surplus funds from the ASC to the State general fund — will not cause Jordan, as a taxpayer, to “face the liability of replenishing the state funds” at issue. Broxton, 861 So.2d at 385.

Jordan argues that “[o]nce moneys are deposited into the state treasury, these moneys become state funds and belong to all its citizens.” From this, he concludes that he has standing as a taxpayer to bring his action because he challenges the •wrongful transfer of “state funds.” However, this Court in Broxton rejected a similar argument. 861 So.2d at 385 (“Broxton also argues that state funds are used, because at the moment of the reimbursement, the federal funds become state funds, and the property of the state. Again, this argument must fail, because as stated above, it is the liability to replenish public funds that gives a taxpayer standing to sue, and there is no question that here there is no liability to replenish state funds.”). It is as true in Jordan’s case as it was in Broxton that “it is the liability to replenish public funds that gives a taxpayer standing to sue, and there is no question that here there is no liability to replenish state funds.” 861 So.2d at 385.

Finally, Jordan makes what is essentially a taxpayerstanding-by-necessity argument; that is, he argues that if a taxpayer is not allowed to bring the challenge he has brought, there is no one else who will do so. To support his argument, Jordan cites language from Knutson v. Bronner, 721 So.2d 678, 682 n. 6 (Ala.1998), in which this Court stated: “There might be cases in which a. taxpayer’s standing is recognized because no one else may bring the action.” Jordan also cites the following language from Zeigler v. Baker, 344 So.2d 761, 764 (Ala.1977):

“ ‘If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer’s attack which preserves the public treasure.’ ”

(Quoting Department of Admin, v. Home, 269 So.2d 659 (Fla.1972).)

We disagree with Jordan’s argument in this regard. This Court in Broxton quoted the exact passage from Zeigler cited by Jordan. 861 So.2d at 384-85. Even so, Broxton concluded that the question of a taxpayer’s standing to challenge an expenditure or transfer of funds is determined by whether the alleged wrongful expenditure will cause the taxpayer to suffer “the liability to replenish the public treasury through the payment of taxes.” 861 So.2d at 385.

More importantly, the undisputed evidence in the record shows that the ASC is self-funded through the collection of “fees for the registration of securities, brokers, and dealers who sell securities, and investment advisers and representatives who, for a fee, advise clients concerning the purchase of securities” and through the assessment and collection of “fines from entities and individuals whom it finds guilty of violating the registration provisions of [the act establishing the ASC].” (Trial court’s order.) Other than asserting that those individuals or entities who pay fees or fines to the ASC have not brought a challenge to the transfers Jordan seeks to invalidate, Jordan has neither suggested nor shown that they would not have standing to do so.

In response to the State officials’ motion for a summary judgment, Jordan has not presented substantial evidence indicating that he has standing as a taxpayer to bring his action, because he has not offered evidence showing that any deficiency created by the challenged transfers will cause him to be liable for replenishing the public treasury. Therefore, Jordan does not have standing as a taxpayer to bring his action.

Conclusion

The trial court’s summary judgment in favor of the State officials is affirmed.

AFFIRMED.

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

NABERS, C.J., recuses himself.

      . The trial court also held that even if Jordan had standing as a taxpayer, his claims against the State officials were barred by the doctrine of State immunity. Because the trial court correctly determined that Jordan does not have standing to bring the action, we express no opinion as to whether the doctrine of immunity bars Jordan’s claims. Likewise, the conclusion that Jordan lacks taxpayer standing pretermits any consideration of his claim that the challenged transfers violate § 45 and § 71, Ala. Const.1901.

      . We analyze Jordan’s contention that he has standing as a taxpayer under Broxton because its statement of the test for taxpayer standing disposes of Jordan’s claims. We note, however, that Jordan’s complaint asked the court to require the State officials to "repay all funds earmarked to the [ASC] which were transferred to the general fund in any general appropriations bill, along with interest thereon.” To the extent Jordan's complaint sought to recover funds that were alleged to have been wrongfully expended, Jordan did not have standing as a taxpayer to do so. Beckerle v. Moore, 909 So.2d 185, 187-89 (Ala. 2005) (holding that a taxpayer has no standing to sue a State official to recover public funds allegedly wrongfully expended because of the official’s acts).

      . Instead, Jordan has argued essentially only that those individuals or entities would have no incentive to challenge the transfers because "[o]nce the fees that were paid to the [ASC] have been paid into the state treasury by those persons required to pay them, those persons that paid the fees have no further liability for those fees.” (Jordan’s brief, p. 25.) However, without expressing any opinion on whether they would have standing to challenge the ASC transfers, we note that those individuals or entities who have paid fees or fines to the ASC do not appear to have any less incentive than does Jordan to challenge the transfers. As the State officials argue, Jordan's action, if successful, could have the ironic result of increasing Jordan’s liability as a taxpayer. This is so, the State officials contend, because the legislature could choose to use funds derived from tax revenues to replenish the funds it has allegedly "appropriated” to the general fund from the ASC funds.

      . Jordan’s reliance on Childree v. Hubbert, 524 So.2d 336 (Ala.1988), is misplaced. Although standing was not an issue addressed by this Court in Childree, the plaintiff-taxpayers in that case had standing because they challenged the legislature's transfer of funds from the Alabama Special Education Trust Fund ("the ASETF”) through general appropriations bills. 524 So.2d at 337. The AS-ETF, unlike the ASC, is funded by taxes, 524 So.2d at 339-40; therefore the plaintiff-taxpayers in Childree would have "face[d] the liability of replenishing the state funds” at issue.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    CLAY KILGORE CONSTRUCTION, INC. v. BUCHALTER/GRANT, L.L.C., and Buchalter II, Inc. Clay Kilgore Construction, Inc. v. Buchalter/Grant, L.L.C., and Buchalter II, Inc.
    1031086 and 1031087.
    Supreme Court of Alabama.
    July 21, 2006.

      T. Kelly May, Thomas E. Bazemore III, and Jason M. Kirschberg of Huie, Fer-nambucq & Stewart, L.L.P., Birmingham, for appellant Clay Kilgore Construction, Inc.
    Apsilah Owens Millsaps of Owens & Millsaps, LLP, Tuscaloosa, for appellees Buchalter/Grant, L.L.C., and Buchalter II, Inc.
   WOODALL, Justice.

Clay Kilgore Construction, Inc. (“Kil-gore”), appeals from a summary judgment for Buchalter/Grant, L.L.C., and Buchalter II, Inc. (hereinafter referred to collectively as “Buchalter”), on Kilgore’s cross-claims alleging fraud and suppression against Bu-chalter, in actions commenced against Kil-gore and Buchalter by purchasers of homes constructed by Kilgore in the Southland Estates (“Southland”), a 40-lot subdivision developed by Buchalter. We affirm.

I. Factual Background

The events underlying this dispute began when Buchalter purchased 19 acres in Tuscaloosa County in order to plat and develop Southland. In connection with the development of Southland, Buchalter engaged the engineering services of Apoda-ca-Gardiner Engineering, Inc. (“Apoda-ca”). According to the affidavit of Victor Apodaca, a former co-owner of that company, Apodaca informed Buchalter “that soils and soil conditions in [the proposed subdivision] were not very good and that there would be difficulties in implementing on-site sewage disposal systems.” (Emphasis added.) Three officials of the Tuscaloosa County Health Department (“the health department”) made a preliminary investigation of, and performed soil tests at, Southland in June 1996. Their opinion reiterated Apodaca’s opinion of the soil condition and was relayed to Apodaca.

Buchalter submitted to the health department a “preliminary subdivision report” (“the preliminary report”) on August 27, 1996, and a “final subdivision report” (“the final report”) on October 17, 1996. In connection with those reports, Buchal-ter submitted to the health department information purporting to be the results of soil tests Apodaca had conducted at South-land, including “percolation” tests and “soil borings.” Health department supervisor Gregory Utley reinspected Southland on two occasions in connection with the final report. On the basis of Utley’s inspections and the information supplied by Buchalter, the health department approved the final report in November 1996.

In December 1996, Kilgore, through its president, Clay Kilgore, began negotiating with Robert Buchalter for the purchase of lots in Southland. Mr. Kilgore testified by deposition that he asked Mr. Buchalter “what kind of [sewage] systems [the residents] would be using,” and was told “there would be septic tanks or septic systems and it had been approved by the health department.” According to Mr. Kilgore, Mr. Buchalter’s response “basically led us to believe that we were dealing with conventional sewage disposal sys-terns.” (Emphasis added.) Mr. Kilgore also testified that a health department official had told him, in answer to his inquiry, that the lots were “acceptable” for “conventional [septic] systems.”

On December 28, 1996, Mr. Kilgore, on behalf of Kilgore, signed a contract for the purchase of lots 5, 26, 29, and 35. The contract provided, in pertinent part: “PURCHASER accepts property in ‘AS IS’ condition.”

Kilgore received warranty deeds for its purchase in 1997. At that time, some utility services, such as water, electricity, telephone, and cable television, had been installed up to the front of the lots. Moreover, the lots had been cleared and leveled and were serviced by a paved street with curbs and gutters. However, there were no structures on the lots. Subsequently, Kilgore constructed houses on lots 5 and 26, installing conventional septic-sewage systems.

On September 15, 1998, and March 11, 1999, Kilgore sold the houses on lots 26 and 5, respectively. The house on lot 5 was purchased by Michael Poe and Tracey Poe. The house on lot 26 was purchased by Joseph Carter and Teresa Carter. Soon after these transactions, the septic-sewage systems on both properties failed. The cause of the failures was ultimately attributed to the unsuitability of the soil on lots 5 and 26 for conventional septic-sewage disposal.

On July 24, 2000, the Poes sued Buchal-ter and Kilgore (case no. CV-00-929). On January 22, 2001, the Carters sued Buchal-ter and Kilgore (case no. CV-01-89). Discovery in the cases produced evidence of discrepancies between the soil tests submitted to the health department by Bu-chalter in connection with the final report, on the one hand, and soil tests conducted by the health department, both before and after that report, on the other.

On September 24, 2002, Kilgore filed cross-claims against Buchalter in both cases, alleging fraud and fraudulent suppression. More specifically, Kilgore alleged that “[p]rior to and following the purchase of [the lots] ..., it was assured that the property would be serviced by conventional septic systems,” and that Bu-chalter “owed a duty to disclose, but instead suppressed,” the fact that “subsoil conditions would not support conventional septic systems.” Kilgore sought compensatory and punitive damages; it also sought “complete and full indemnity for all costs and expenses arising” from any judgment that might be entered against it in favor of the Carters and/or the Poes.

Buchalter moved for summary judgments as to the claims of the Carters and the Poes and as to the cross-claims of Kilgore. The trial court entered summary judgments for Buchalter and certified the judgments as final, pursuant to Ala. R. Civ. P. 54(b). In identical judgments disposing of the cross-claims in both cases, the trial court stated, in pertinent part:

“At the time of [Kilgore’s purchase of the lots], no house was on the land. Pursuant to DeAravjo v. Walker, 589 So.2d 1292 (Ala.1991), such a sale falls within the doctrine of caveat emptor which bars [Kilgore’s] claims. The court ... finds that [Buchalter] explicitly disclaimed any duty by selling the land ‘as is’ to a builder in an arm’s length commercial transaction. In light of the nature of the sale, the corad finds that summary judgment is due to be granted on all claims asserted by [Kilgore].”

(Emphasis added.)

The Carters, Poes, and Kilgore appealed. This Court affirmed the judgments in the appeals of the Carters and the Poes, without an opinion. Carter v. Buchalter/Grant, L.L.C. (No. 1031088, October 14, 2005), — So.2d — (Ala.2005) (table), and Poe v. Buchalter/Grant, L.L.C. (No. 1031090, October 14, 2005), — So.2d(Ala.2005) (table). We consolidated Kil-gore’s appeals as to its cross-claims for the purpose of writing one opinion. Case no. 1031086 represents the appeal from the summary judgment for Buchalter in the Carters’ action; case no. 1031087 represents the appeal from the summary judgment for Buchalter in the Poes’ action.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Perry v. City of Birmingham, 906 So.2d 174, 175 (Ala.2005) (quoting Ala. R. Civ. P. 56(c)(3), and citing Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999)). “The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party.... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court.” Perry, 906 So.2d at 175.

II. Fraud and Suppression

Kilgore’s theory of the case is that it was induced by fraud and/or fraudulent suppression to purchase lots in Southland on the false premise that the soil beneath the lots was suitable for the use of conventional septic-sewage systems. More specifically, Kilgore says it purchased the lots on the basis of a misrepresentation by Buchalter that the residences constructed on the lots would be on conventional septic tanks and on the basis of the health department’s representation that the lots were “acceptable” for “conventional [septic] systems.” Kilgore also insists that Buchalter deceived the health department as to modifications to the soil Buchalter allegedly made between Buchalter’s submission of the preliminary report and the final report in order to acquire the health department’s approval of the final report. Kilgore contends that Buchalter’s representations to the health department, on which Kilgore also allegedly relied, were based on the allegedly inaccurate soil tests Buchalter provided the health department. In the alternative, Kilgore argues that Bu-chalter suppressed information known to Buchalter that the soil beneath Southland was unsuitable to the use of conventional septic-sewage systems.

According to Kilgore, the trial court erroneously held that the “as is” nature of the sale of the lots precluded Kilgore’s fraud and suppression claims. Buchalter, on the other hand, essentially argues that “the ‘as is’ language of the contract,” in conjunction with “the doctrine of caveat emptor,” bars Kilgore’s recovery on the fraud and suppression claims. Buchalter’s brief, at 61. The dispositive issue, therefore, involves the interplay between the doctrine of caveat emptor and the “as is” clause in the contract.

Although this Court “has abrogated the rule of caveat emptor in the sale of a new house,” the doctrine “still applies to the sale of a ‘used’ house.” Nesbitt v. Frederick, 941 So.2d 950, 956 (Ala.2006); see Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala. 2002). The rule also still applies to the “purchase of unimproved land.” DeAravjo v. Walker, 589 So.2d 1292, 1293 (Ala. 1991) (emphasis added); see Morris u Strickling, 579 So.2d 609 (Ala.1991).

DeAravjo involved an action by Frances and Jose DeAravjo against Harold Walker, a real-estate developer, arising out of Walker’s sale of a vacant lot on which a house was eventually built and purchased by the DeAravjos. 589 So.2d at 1293. This Court affirmed a summary judgment for Walker on the ground that caveat emptor applied to the purchase of unimproved property. Id.

Kilgore attempts to distinguish DeAr-avjo, apparently on the theory that this case involves utilities installations that were not involved in DeAravjo. The vacant lot in that case had been modified before the sale by the installation of a “drainage system” and curbs and gutters. Id. In this case, some utilities lines had been brought up to the lots before the sale. Indeed, Kilgore contends that these lots— unlike the lot in DeAravjo — were, in fact, “improved.”

This Court has previously rejected similar arguments. In DeAravjo, for example, we said:

“We reaffirm our recent holding in Morris v. Strickling, 579 So.2d 609 (Ala. 1991), that the doctrine of caveat emptor applies with regard to the purchase of unimproved land:

“ ‘The Morrises argue that the exception to the caveat emptor rule as stated in Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313, 314 (1971) (holding that the rule caveat emptor would no longer be applicable to the sale of a newly constructed house, and recognizing an implied warranty of fitness and habitability with regard to such sales), should be extended to situations, such as the one at bar, involving the purchase of an unimproved piece of property. We disagree.

“ ‘The Court of Civil Appeals has addressed the purchase of real estate as follows:

“ ‘ “Furthermore, while Alabama courts recognize the implied warranty of fitness and habitability for the purpose purchased [sic] in newly constructed homes, we know of no such implied warranty extending to the purchase of lands. The physical condition of the premises has fallen under the rule of caveat emptor. See Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971); 77 Am.Jur.2d Vendor and Purchaser § 329.”
‘Scott v. Gill, 352 So.2d 1143, 1145 (Ala.Civ.App.1977). While the Mor-rises argue that the Scott case dealt with “raw, vacant and unimproved land” as opposed to land improved for the purpose of building houses, we are unwilling to extend the Cochran exception to land with no dwelling, because we are of the opinion that the dispositive question would then become the often difficult question of whether a particular parcel is “improved” or “unimproved” and, if “improved,” then for what purpose.’ ”

589 So.2d at 1293-94 (emphasis added).

Under the principle stated in Morris and reiterated in DeAravjo, “unimproved” property simply means “land with no dwelling.” It is undisputed that the property Kilgore purchased was “land with no dwelling.” Consequently, caveat emptor applies to Kilgore’s purchase of lots 5 and 26.

Under a growing body of Alabama case-law involving circumstances in which the rule of caveat emptor is applicable, a fraud or fraudulent-suppression claim is foreclosed by a clause in a purchase contract providing that the purchaser of real property accepts the property “as is.” Moore v. Prudential Residential Servs., 849 So.2d at 928; Leatherwood, Inc. v. Baker, 619 So.2d 1273, 1274 (Ala.1992); Haygood v. Burl Pounders Realty, Inc., 571 So.2d 1086, 1089 (Ala.1990); and Massey v. Weeks Realty Co., 511 So.2d 171 (Ala. 1987). This is so, because an “as is” clause negates the element of reliance essential to any claim of fraud and/or fraudulent suppression. Haygood, 571 So.2d at 1089; Massey, 511 So.2d at 173; and Gaulden v. Mitchell, 849 So.2d 192, 199 (Ala.Civ.App. 2002).

Kilgore does not cite any of those cases, and it does not ask us to overrule that line of authority. Even if we would be amenable to such a request, we are not inclined to abandon precedent without a specific invitation to do so. “Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.” Moore, 849 So.2d at 926.

Kilgore purchased the lots in this case as unimproved property, subject to an “as is” clause in the purchase contract. Under Massey and its progeny, its fraud and suppression claims are precluded. The trial court did not err, therefore, in entering summary judgments on those claims.

III. Indemnity

Kilgore contends that “[a] genuine issue of material fact exists as to [Kil-gore’s] claim for indemnity.” Kilgore’s brief, at 37 (case no. 1031087). However, its discussion of this issue is cursory at best. It cites only one case, Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., 335 So.2d 125 (Ala.1976), and does so only for the general, unremarkable principle that “exceptions exist as to the general rule that prohibits contribution among alleged joint tortfea-sors.” Kilgore’s brief, at 37 (case no. 1031087).

This Court has recently said:

“Rule 28(a)(10), Ala. R.App. P., requires the appellant to cite relevant authority in support of its arguments. This is so, because “‘it is neither our duty nor function to perform all the legal research for an appellant.” ’ Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). ‘Nor is it the function of the appellate courts to “make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ Pileri Indus., Inc. v. Consolidated Indus., Inc., 740 So.2d 1108, 1110 (Ala.Civ.App.1999) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)). Authority supporting only ‘general propositions of law’ does not constitute a sufficient argument for reversal. Geisenhoffv. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App. 1997).”

Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004) (emphasis added).

Kilgore’s single citation to a general principle of law without specific relevance to this case does not satisfy Ala. R.App. P. 28(a)(10). Therefore, we do not address the indemnity issue.

IV. Summary

In short, the trial court did not err in entering summary judgments for Buchal-ter in these cases. Consequently, those judgments are affirmed.

1031086 — AFFIRMED.

1031087 — AFFIRMED.

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

      . These cases were originally assigned to another Justice on this Court; they were reassigned to Justice Woodall on May 5, 2006.

      . Robert Buchalter is the president of Buchal-ter II, Inc.

      . The parties and witnesses in this case distinguish "conventional” septic systems from “engineered” septic systems, which are significantly more expensive than conventional systems.


text:
    BEACHCROFT PROPERTIES, LLP, and Sherman Holland, Jr. v. CITY OF ALABASTER, a municipal corporation, and BW & MMC, LLC.
    1041359.
    Supreme Court of Alabama.
    July 21, 2006.

      David B. Anderson and Deanna L. Weidner of Waller, Lansden, Dortch & Davis, LLP, Birmingham, for appellants.
    J. Frank Head and William R. Justice of Wallace, Ellis, Fowler & Head, Columbia-na, for City of Alabaster.
    Steven F. Casey and M. Todd Lowther of Balch & Bingham, LLP, Birmingham, for BW & MMC, LLC.
   WOODALL, Justice.

Beachcroft Properties, LLP, and Sherman Holland, Jr. (hereinafter referred to collectively as “Beachcroft”), appeal from a summary judgment for BW & MMC, LLC (“BW”), and the City of Alabaster (“the City”) in an action filed by Beachcroft seeking access to a sanitary sewer system. We reverse and remand with directions.

This is the second time this dispute has come before us. The underlying facts are fully set forth in Beachcroft Properties, LLP v. City of Alabaster, 901 So.2d 703 (Ala.2004), and will not be repeated. In Beachcroft, we reversed a summary judgment for BW and the City and remanded the case for the trial court to consider whether the City had the authority to reject BW’s purported reservation of ownership and control of the sanitary sewerage substation on lot 599, as noted on the Lake Forest Fifth Sector subdivision plat (“Lake Forest”), and the sewer lines beneath the streets of Lake Forest, while, at the same time, accepting BW’s dedication of Lake Forest.

On remand, Beachcroft and BW again filed cross-motions for a summary judgment. Submitted with BW’s motion was the affidavit of its “agent,” Joseph McKay, which chronicled the development of Lake Forest. The affidavit stated, in pertinent part:

“6. I am familiar with the location of the proposed subdivision known as Forest Highlands,[] and I am aware that [Beachcroft] in this matter could gain access for Forest Highlands’ sewer to the City of Alabaster’s (the ‘CityO sewer system by extending a sewer line along Burnt Pine Drive, a public road which accesses Forest Highlands, and then extending the line along Shelby County Highway 17 south to the intersection of Shelby County Highway 26 (Kent Dairy Road). The line would then be extended along Highway 26 to the City’s existing sanitary sewer pump station. This access would utilize public right-of-way from [Beachcroft’s] property all of the way to the City’s pump station. Also, this routing of sanitary sewer lines would cover a similar distance and reach the same City pump station as the sewer lines serving [Lake Forest].
“7. In the course of developing the various stages of the Lake Forest Development, [BW] ... has built two sanitary sewer pump stations in the Lake Forest Development. The first station was built in conjunction with the Lake Forest Second Sector (the ‘Second Sector’) and was located on Lot 233 of the Second Sector.
“8. [BW] was required by the City to maintain the subdivision pump station and the associated sanitary sewer lines for the Second Sector for approximately one year from the date of recordation of the final plat and pay any costs associated with the Second Sector’s sewer system. In fact, after approximately one year from recording had passed, the City transferred the power bill into its name. Subsequent to that, [BW] deeded Lot 233, which contained the sanitary seiver pump station to the City.
“9. Based upon my dealings with the City, it is my understanding that it is the City’s general practice to require subdivision developers, for a period typically around a year, to retain their subdivisions’ sanitary sewer systems maintaining full responsibility for the upkeep and paying all costs associated with the systems, in a similar manner as occurred in the Second Sector. This generally continues until a developer puts a final one-inch wearing surface of asphalt on the roads and conveys or otherwise turns over the pump station to the City.
“10. [BW’s] second pump station for the Lake Forest Development was built in Lake Forest Fifth Sector (the ‘Fifth Sector’) and located on Lot 599. This station was designed to collect the sewer [sic] from a majority of the Fifth Sector and pump it into the pump station located on Lot 233. The pump station and sewer lines for the Fifth Sector were designed and built with a capacity to adequately service the Fifth Sector. For this pump station and the sanitary sewer lines connected to it, [BW] noted of the Fifth Sector’s Final Plat that it was withholding those facilities from dedication.... [BW] continues to own and maintain Lot 599, and it also continues to pay the power bill for this pump station.”

(Emphasis added.) This account was essentially reproduced in the “summary of undisputed facts” portion of BW’s motion for a summary judgment and in BW’s brief on appeal.

In its renewed motion for a summary judgment, Beachcroft argued, in pertinent part:

“A developer ... cannot ... determine what members of the public .shall have access to public improvements to the exclusion of a municipality.
“BW has frustrated the City’s harmonious development plan and has caused damage to [Beachcroft]. BW’s attempted restriction of the use of a public sewer ... is ... a legal nullity because it violates public policy....”

(Emphasis added.) Beachcroft also argued that the City, in “acceding to BW’s threats to exercise legal remedies against it should it allow [Beachcroft] access to the public sewer system,” had “acted arbitrarily and capriciously.” Beachcroft sought an order “allowing [it] to connect to the public sewers” under Lake Forest.

The trial court granted BW’s motion and denied Beachcroft’s motion. In so doing, the trial court disposed of all claims against BW and the City.

Beachcroft appealed a second time, and, for the first time in this dispute, the City filed a brief. The City agrees with Beach-croft, except as to Beachcroft’s contention that it acted arbitrarily or capriciously. They both contend that the sewer system at issue is a public system. In particular, Beachcroft states: “[T]he evidence is undisputed that the streets and sewers are admittedly public and are connected to the City’s system. They are being used by the public and the City is charging fees for such public use.” Beachcroft’s brief, at 22-23. Beachcroft and the City both take the position that the restrictions in the “ ‘final’ plats [BW] submitted on June 26, 2002, and December 30, 2002,” Beachcroft Props., 901 So.2d at 710, which purport to prohibit landowners in Forest Highlands, an adjoining subdivision, from connecting to the sewer lines beneath the streets of Lake Forest, are void as an invalid interference with the City’s control over its own sewer system.

BW, on the other hand, disputes the allegations that the Lake Forest sewer system is a public system. It contends that BW owns the sewer lines and the pumping station on lot 599 and will do so until it deeds the system to the City. BW states that “case law supports the placement of ‘reasonable’ conditions in public dedications,” BW’s brief, at 17, and argues that its purported restrictions are “reasonable.”

The parties cite no Alabama case on point. Nevertheless, a few relevant rules are widely recognized. For example, “[i]t is well established that although one dedicating land for public use may impose reasonable conditions, restrictions and limitations thereon, he may not impose reservations repugnant to the grant or which contravene public policy.” Callahan v. Ganneston Park Dev. Corp., 245 A.2d 274, 278 (Me.1968) (emphasis added). See also City of Birmingham v. Graham, 202 Ala. 202, 204, 79 So. 574, 576 (1918) (“ ‘A condition or limitation which would render the dedication ineffectual cannot be annexed _’ ”); City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 379, 697 P.2d 1125, 1129 (Ct.App.1984) (“The general rule is that a dedicator may impose such restrictions and reservations as he may see fit when dedicating his property to the use of the public subject to the limitation that the restriction or reservation be neither repugnant to the dedication nor contrary to public policy.”); Haven Homes, Inc. v. Raritan Township, 19 N.J. 239, 246-47, 116 A.2d 25, 29 (1955) (“And it goes without saying that a reservation basically repugnant to the grant itself or to public policy cannot be sustained.”); and 11A Eugene McQuillin, Law of Municipal Corporations § 33.10.20 at 342 (3d ed. rev.vol. 2000) (“The dedicator cannot attach a condition or reservation that will destroy the chief characteristic of the purpose of the dedication or take the property from the control of, or impose burdens on, the duly authorized public officers.”).

For example, there can be no “ ‘valid dedication to a part only of the public, since this would be repugnant to the purpose of the dedication.’ ” Greil v. Stollenwerck, 201 Ala. 303, 306, 78 So. 79, 82 (1918) (quoting 1 Elliott, Roads & Streets § 163); see also Hill v. Towson Realty, Inc., 221 Md. 389, 396, 157 A.2d 796, 799 (1960); Atlantic Beach Prop. Owners’ Ass’n v. Town of Hempstead, 3 N.Y.2d 434, 144 N.E.2d 409, 165 N.Y.S.2d 737 (1957); and McQuillin, supra, § 33.10.20, at 344.

Indeed, “[t]he donee cannot ... assent to conditions which will deprive the municipality of its power to regulate and control the public streets.” North Spokane Irrigation Dist. No. 8 v. County of Spokane, 86 Wash.2d 599, 602, 547 P.2d 859, 862 (1976) (emphasis added); see also State ex rel. Attorney General v. Louisville & N.R.R., 158 Ala. 208, 48 So. 391 (1908) (City of Montgomery could not, by contract, authorize the permanent obstruction of its streets by a railway company); and City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 797, 237 S.W.2d 94, 98 (1951) (“The general rule is that a dedicator cannot attach conditions ... which exclude public control of the property....”).

Moreover, “[i]f an invalid condition is annexed to the dedication, it [is generally] held that the condition only is void, and that the grant or dedication is not affected thereby.” 3 John F. Dillon, Commentaries on the Law of Municipal Corporations § 1075, at 1698 (1911). See Abbot Kinney Co. v. City of Los Angeles, 223 Cal.App.2d 668, 675, 36 Cal.Rptr. 113, 118 (1964); Callahan, 245 A.2d at 278; Hooker v. City of Grosse Pointe, 328 Mich. 621, 630, 44 N.W.2d 134, 139 (1950); Kuehn v. Village of Mahtomedi, 207 Minn. 518, 524, 292 N.W. 187, 190 (1940) (conditions for limitations purporting to “take the property dedicated from the control of the public authorities ... will be construed as void,” leaving the dedication in effect); Bums v. Board of Supervisors of Stafford County, 226 Ya. 506, 515, 312 S.E.2d 731, 736 (1984) (“If the reservation is void, the dedication is effective but the reservation is inoperative.”); and 26 C.J.S. Dedication § 33 (2001) (“If an improper condition is attached, the dedication will take effect regardless of the condition, which is construed as void.”).

Perhaps more to the point is City of Sierra Vista v. Cochise Enterprises, Inc., supra, on which Beachcroft and the City rely. In Sierra Vista, Cochise Enterprises, Inc. (“Cochise”), filed platted subdivisions, purporting to reserve an easement for a sanitary sewer system “ ‘over, through and across all streets, alleys and easements,’ ” 144 Ariz. at 379, 697 P.2d at 1129; the system was connected to the sewer system of the City of Sierra Vista. 144 Ariz. at 380, 697 P.2d at 1130. The City of Sierra Vista sued Cochise to determine the rights and duties of the parties “relat[ing] to waste disposal” and the “payment of certain fees to the City when connections [were] made to the sewer system.” 144 Ariz. at 377, 697 P.2d at 1127. At the relevant times, there was in effect ordinance no. 26, which effectively made “any sewer lines connecting with the city system city property.” 144 Ariz. at 378, 697 P.2d at 1128. The trial court held that “ ‘any attempts to reserve easement in the dedicated streets and alleys for sewer line purposes were void and against public policy.’ ” 144 Ariz. at 379, 697 P.2d at 1129.

The appellate court agreed with the trial court, stating:

“Once connected to the City sewer system, complete control and ownership of the system rested with the City pursuant to City Ordinance No. 26. All of this leads to one conclusion. Any attempt by Cochise to reserve to itself the right to the sewer lines and any easement pertaining thereto was void as contrary and repugnant to Ordinance No. 26 and the public policy of the state giving incorporated cities exclusive control over its sewage system. ...
“Here, we do not have an annexation and takeover of an existing sewer and water system. We have an initial integration with the City system. There was no private sewer system; it was always public. ”

144 Ariz. at 380, 697 P.2d at 1130 (emphasis added).

According to BW, Sierra Vista is inap-posite, because, it argues, that opinion was based on various pieces of Arizona legislation, and because there is no Alabama law holding that cities have “'the exclusive right to maintain a sewer system.’ ” BW’s brief, at 23-24 (some emphasis added) (quoting Jefferson County Comm’n v. ECO Pres. Servs., LLC, 788 So.2d 121 (Ala.2000)). BW’s argument misses the mark in a number of respects.

First, although Sierra Vista did involve Arizona statutes and ordinances, those provisions, for the most part, did little more than codify the obvious and unremarkable proposition that cities own and control their own sewer systems. Alabama law is not dissimilar.

For example, as a matter of Alabama constitutional law, “[n]o ... corporation shall be ... permitted to use the streets ... of any city ... for the construction or operation of any public utility or private enterprise, without ... the consent of the ... city.” Ala. Const.1901, § 220. “The legislature has given the City the authority to regulate the development of subdivisions through its planning commission. § 11-52-31, Ala.Code 1975. ‘Subdivision legislation is part of planning legislation, as is zoning; they are all predicated on the police power of the state.’ City of Mobile v. Waldon, 429 So.2d 945, 947 (Ala.1983).” City of Dothan v. Eighty-Four West, Inc., 822 So.2d 1227, 1236 (Ala.Civ.App.2001) (emphasis added).

“A sewerage system may be constructed and maintained by a municipality ... and when constructed is the property of the municipality, and the general public of the state at large has no interest therein.” Benson v. City of Andalusia, 240 Ala. 99, 101-02, 195 So. 443, 445 (1940). Moreover, “[t]he right of a municipality to regulate and control, under its police powers, the use of its sewer system is a necessary incident to its ownership .... ” 240 Ala. at 102, 195 So. at 445 (emphasis added).

The right of control is also a necessary corollary of a municipality’s “duty to use due care to keep the sanitary sewers in usable condition so as not to permit an unsafe condition to result.” Oliver v. Water Works & Sanitary Sewer Bd., 261 Ala. 234, 237, 73 So.2d 552, 554 (1954) (“The city could not be held responsible for the exercise of a power it had no right to render.”). See also Long v. Jefferson County, 623 So.2d 1130, 1135 (Ala.1993) (“cities ... are generally responsible for damage caused by the negligent operation and maintenance of sewers and drains under their control”).

Second, the relevant question is not whether a municipality has “the exclusive right to maintain a sewer system,” but whether it has the exclusive right to maintain and control its own sewer system. That is the question involved in Sierra Vista, as well as in this case. In that connection, the City states:

“The fact of the matter in [this] case is that the Alabaster sewer system is public. The sewage is routed and disposed of by the City’s treatment facilities and plant. BW has attempted to reserve the lines and pumping station, but has no capability or infrastructure to handle the sewage. [BW] has no [Department of Environmental Management] permit. The sewage from the lots sold by BW simply flows into the City’s sewage disposal system, the City charges the lot owners for the hookup and disposal of services, and BW has been able to sell lots with the attraction and availability of the City sewer system.”

The City’s brief, at 19 (emphasis added).

BW filed a motion to strike this portion of the City’s brief, arguing that neither the City nor Beachcroft presented evidence in the trial court to support these factual assertions. In response, the City states that it has “always contended that its sanitary sewer system is public,” and points out that “BW does not deny the accuracy of [the assertions] that BW has no [Department of Environmental Management] permit, no sewage treatment facility, [and] no capability or infrastructure to handle the sewage.” (Emphasis added.) Moreover, the City contends that its factual allegations are, in fact, necessarily deduced from facts that are properly in evidence. We agree. Consequently, BW’s motion to strike the City’s factual assertions in its brief to this Court is denied. In its motion to strike, however, BW also correctly pointed out that certain arguments in the briefs of the City and Beach-croft are based on statutes and City ordinances cited only in the briefs and were never made in the trial court. BW moved to strike those arguments. To that extent, BW’s motion is granted.

The City’s factual allegations are amply supported by McKay’s affidavit, as summarized in BW’s narrative statement of undisputed facts and reasserted by BW in its brief on appeal. McKay admitted in paragraphs 6, 8, and 10 of his affidavit that Lake Forest is connected to the City’s sewer system. Specifically, he stated that sewage from Lake Forest flows to the pump station on lot 599, the ownership of which is disputed in this case. From there, however, it flows to the pump station on lot 233, which, he stated in paragraph 8, BW has deeded to the City. McKay further explained how the City has required BW to build pump stations and to install and maintain sewer lines to service Lake Forest throughout each of its several stages of development. The City duly assumes control and maintenance of the facilities at the conclusion of each stage.

Thus, it is undisputed that the sewage from Lake Forest flows to facilities owned and operated by the City, and it is uncon-troverted that BW does not purport to own or treat the sewage discharged by Lake Forest. In other words, when the Lake Forest sewer system was connected to the City’s system, the City acquired the effluent, and the concomitant duty to dispose properly of the sewage flowing from Lake Forest to other points within the City’s system.

It must be, therefore, that the pipes under Lake Forest and the pump station on lot 599 have become an integral part of the public sewer system with the right of control consequently vested in the City Were it otherwise, the developer of one subdivision could hold another development hostage on a whim, thereby improperly interfering with the orderly development of a municipality. Moreover, the fact that the City regularly requires BW and similarly situated developers to maintain “full responsibility for the upkeep and paying all costs associated with the systems” for approximately one year does not detract from the public nature of the Lake Forest system. Greil v. Stollenwerck, 201 Ala. 303, 307, 78 So. 79, 83 (1918) (holding that “private streets” created pursuant to a contract between the City of Montgomery and a railway company were public and not private, notwithstanding the fact that the contract required the railway company to construct and maintain the streets).

We have examined the cases cited by BW and find them to be either distinguishable or inconsistent with settled Alabama law. For example, in Zimring-McKenzie Construction Co. v. City of Pinellas Park, 237 So.2d 576 (Fla.Dist.Ct. App.1970), the question was whether the developer of a subdivision was entitled to compensation from a municipality, which took “over and operate[d],” id. at 578-79, what the court deemed to be a private water and sewerage system the developer had installed under the streets of the subdivision after dedicating the subdivision without reservation. Id. at 577. A divided court of appeals answered that question in the affirmative, concluding that the developer did not intend to dedicate the pipes beneath the subdivision. Id. at 578. Zimring-McKenzie may be inconsistent with the settled rule in Alabama, namely, “that an unrestricted dedication of streets necessarily includes a dedication of the sewer lines beneath the streets.” Beachcroft Props., 901 So.2d at 709 (second emphasis added). Moreover, as discussed above, this case involves pipes and a pumping station that have become an integral part of a public sewerage system. Thus, Zimring-McKenzie is not persuasive.

Sewerage District Number One of Rapides Parish v. Afco Corp., 177 So.2d 308 (La.Ct.App.1965), another case cited by BW, was an action commenced by Sewerage District Number One of Rapides Parish, Louisiana (“the district”), to enjoin Afeo Corporation and others (“Afco”) from operating a private sewerage system within the “territorial limits” of the district. Id. at 309-10. More specifically, the district claimed “exclusive control over the sewerage installations and facilities used by Afco because of their alleged dedication to the public.” Id. at 310 (emphasis added). The district court denied the relief sought by the district, and the appellate court affirmed. Id. at 314-15.

In its discussion, the court noted that “[t]he developers who created the subdivisions [at issue] reserved in their plats a servitude (‘easement’) for public utility running across the end of each lot.” 177 So.2d at 313. It also noted that “Afco’s sewerage system [was] not connected at any place with and [did] not empty into the sewerage systems operated by the plaintiff district.” Id. at 312 (emphasis added). In that respect, Afco is clearly distinguishable from this case.

In short, by inserting restrictions in the final plats for Lake Forest, which purport to prevent indefinitely the owners of Forest Highlands from connecting to the sewer lines beneath the streets of Lake Forest, BW has, in effect, attempted to dedicate Lake Forest to a “part only of the public,” Greil, 201 Ala. at 306, 78 So. at 82, that is, to the exclusion of the lot owners of Forest Highlands and property owners “upstream” from Forest Highlands. Otherwise stated, the purported reservation prevents the City from fully integrating Lake Forest into the surrounding neighborhood, thereby unreasonably interfering with the City’s authority over its subdivision development. Consequently, the restrictions are void as repugnant to the dedication of Lake Forest. Cf. Kuehn v. Village of Mahtomedi, 207 Minn, at 520, 524, 292 N.W. at 189, 191 (reservation in a platted subdivision purporting to “reserve[ ] to the owner ... ‘the exclusive right to lay and maintain water pipes and erect tanks in any and all of the [municipality’s] streets ... so dedicated” was void as impermissibly ‘“circumscribing the future freedom of action of the authorities to devote the street to the wants and convenience of the public’”); and Dotty Realty Co. v. Bills Constr. Co., 4 Ohio App.2d 70, 71-72, 211 N.E.2d 212, 212-13 (1965) (provision in a plat purporting to reserve a five-foot strip at the end of a dedicated street “until unspecified conditions were met,” which conditions were “wholly at the whim of the dedicator,” was “repugnant to the dedication of [the] property to public use, and ... void as being contrary to public policy”). For these reasons, the trial court erred in entering a summary judgment for BW.

In that connection, we note that, in its own motion for a summary judgment and in its briefs to this Court, Beachcroft states that “[t]he City has been ready to allow [the landowners of Forest Highlands] to connect to the public sewers.” Beachcroft’s brief, at 38. Indeed, the City does not dispute this assertion, and it seeks a judgment from this Court removing the impediment to a sewer connection between Lake Forest and Forest Highlands. The City contends, however, that it refused to allow the connection solely because of its uncertainty as to its authority to reject BW’s reservation and that its refusal was not arbitrary or capricious. We agree. With that caveat, we conclude that the trial court erred in refusing to enter a summary judgment for Beachcroft.

The judgment of the trial court is, therefore, reversed, and the cause is remanded with directions to enter a summary judgment for Beachcroft.

MOTION TO STRIKE GRANTED IN PART AND DENIED IN PART; REVERSED AND REMANDED WITH DIRECTIONS.

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

      . "BW is the owner and developer of Lake Forest.” 901 So.2d at 704.

      . The City did not move for a summary judgment.

      . Forest Highlands is a platted subdivision in the City that abuts Lake Forest. Beachcroft is one of the developers of Forest Highlands, 901 So.2d at 704.

      . This case does not turn on factual resolutions, but on the proper characterization of undisputed or uncontroverted facts.


author: STUART, Justice.

text:
    Ex parte SOPREMA, INC., Kelly Ray, Charles Hallenbeck, and Gilbert Lorenzo. (In re The Lathan Company, Inc. v. Soprema, Inc., et al.)
    1050466.
    Supreme Court of Alabama.
    July 21, 2006.

      Matthew C. McDonald and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for petitioners.
    Oscar M. Price III, Michael L. Jackson, and Tena M. George of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Joe Carl “Buzz” Jordan of Ross & Jordan, P.C., Mobile, for respondent.
   STUART, Justice.

Soprema, Inc., Kelly Ray, Charles Hal-lenbeck, and Gilbert Lorenzo, defendants in an action pending in the Mobile Circuit Court (hereinafter referred to collectively as “the defendants”), petition this Court for a writ of mandamus directing the circuit court to enforce a forum-selection clause in Soprema’s contract with The La-than Company, Inc. (“Lathan”), the plaintiff below, by granting the defendants’ motion to dismiss. We grant the petition.

Facts

In April 2000, Soprema, Inc., an Ohio corporation that manufactures roofing materials, executed an agreement, the “Soprema Authorized Roofing Contractor Agreement” (“the agreement”), with La-than, an Alabama commercial roofing company. The agreement made Lathan an authorized roofing contractor for Soprema roofing products. The agreement authorized Lathan to install roofing systems manufactured by Soprema and provided that Soprema was to determine whether any project on which Lathan proposed using Soprema’s roofing products would be issued a manufacturer’s warranty upon completion. The agreement contained the following forum-selection clause:

“Jurisdiction/Venue. Any suit, action, or other proceeding which arises out of or is based upon the subject matter of this Agreement shall be brought in one of the state courts of Ohio with jurisdiction over Medina County or the United States District Court for the Northern District of Ohio. [Lathan] hereby irrevocably submits to the jurisdiction of these courts and hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that is not subject personally to the jurisdiction of such courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in an inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court....”

According to Lathan, during the time it was an authorized contractor for Soprema, Soprema and W.P. Hickman Systems (“Hickman”), another manufacturer of roofing materials, conspired to control how their authorized contractors, like Lathan, would be awarded the roofing projects on which those contractors bid. Lathan maintains that Soprema and Hickman would decide which of the two of them would provide roofing materials for a potential project, what the price for the roofing materials would be, and how the price would be charged to their authorized contractors. Lathan reasons that,

“if Soprema and Hickman decided Soprema would provide materials for a particular project, Soprema would quote inflated [prices], but lower prices than Hickman, to its approved contractors who were bidding on the job, and Hickman would quote substantially higher prices to its contractors. In this manner, it was certain that a contractor utilizing Soprema roofing materials would win the project and that all Hickman-approved contractors would lose the project, and vice versa.”

In 2000, the University of West Florida (“UWF”) requested bids for a roofing project. Lathan, in preparing a bid for the project, asked Soprema’s regional manager, Kelly Ray, for a price quote for materials needed for the UWF project and for a letter verifying Soprema’s ability to meet the warranty required by the project specifications. Lathan submitted a bid for the UWF project based on the material prices quoted to him by Ray and labor costs and included a letter from Ray, on behalf of Soprema, stating that Lathan was authorized to install Soprema roofing materials. Lathan believed that this letter from Ray satisfied the UWF bid requirements.

Lathan was the low bidder on the UWF roofing project. However, after the bids were opened, Soprema gave Lathan new price quotes on the roofing materials; those price quotes, according to Lathan, were “three to four times higher” than the price quotes Soprema had originally given Lathan and that Lathan had used to calculate its bid on the UWF project. Soprema also notified UWF that Lathan’s manufacturer’s letter did not meet the project specifications. When UWF asked Sopre-ma whether Lathan was an approved Soprema contractor, Soprema replied that Lathan was not at that time an “authorized” Soprema contractor but was authorized on a per-job basis. UWF notified Lathan that because its bid documents did not meet the bid-document requirements, it would not be awarded the project. UWF awarded the roofing project to a Hickman-approved contractor.

In August 2003, Lathan sued Soprema, Inc., and Soprema employees Kelly Ray, Charles Hallenbeck, and Gilbert Lorenzo in the Mobile Circuit Court, alleging interference with business relations with a third party, disparagement and defamation of business reputation to a third party, fraudulent suppression, misrepresentation, breach of contract, and conspiracy. La-than maintains that the defendants and Hickman conspired to have the UWF project awarded to a Hickman-approved contractor. According to Lathan, the defendants knew at the time Lathan requested the warranty-verification letter from Soprema that Ray’s letter did not meet the requirement of the UWF project specifications, but they did not inform Lathan.

The defendants moved to dismiss La-than’s action on the basis of improper venue, citing the forum-selection clause in the agreement. In January 2004, the trial court “conditionally denied” the defendants’ motion to dismiss until discovery could be performed to determine whether the forum-selection clause “controls the issue of venue given the allegations of the complaint and the position of the parties.” In April 2004, the defendants filed their answer and a counterclaim, based on an assigned warranty from the City of Mobile and Lathan’s alleged defective and substandard installation of a Soprema roof on the Mobile Civic Center. After “substantial discovery,” Lathan filed a second amended complaint in October 2005, adding claims alleging “prima facie tort” and bid-rigging.

In November 2005, the defendants filed a renewed motion to dismiss pursuant to the forum-selection clause in the agreement. In December 2005, the trial court conducted a hearing and denied the motion. The defendants then filed this petition for a writ of mandamus.

Standard of Review
“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).’
“Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). In Ex parte CTB, this Court established that 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. Indeed, an attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala.Civ. App.2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala.Civ.App. 1999).
“... On appeal, the review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion. O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844 (Ala.1999).”

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372-73 (Ala.2001).

Legal Analysis

The defendants contend that the trial court exceeded the scope of its discretion when it refused to enforce the forum-selection clause in the agreement and denied the defendants’ motion to dismiss this action on the basis that venue in the Mobile Circuit Court was improper. Specifically, the defendants argue that the forum-selection clause should be enforced because, they argue, enforcement of the clause is not unfair in that the agreement was not “affected by fraud, undue influence, or overweening bargaining power” and it is not unreasonable because, they say, the selected forum would not be “seriously inconvenient” for the parties.

“An outbound forum-selection clause is enforceable unless the challenging party can establish that enforcement of the clause would be unfair on the basis that the contract ‘ “[w]as affected by fraud, undue influence, or overweening bargaining power or ... enforcement would be unreasonable on the basis that the [selected] forum would be seriously inconvenient.” ’ The burden on the challenging party is difficult to meet. Ex parte CTB, [782 So.2d 188 (Ala. 2000) ]. See also Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala. 1997).”

Ex parte D.M. White Constr. Co., 806 So.2d at 372.

The defendants contend that La-than did not establish that the agreement was unfair because, they say, the agreement was not affected by fraud, undue influence, or overweening bargaining power. The defendants maintain that the execution of the agreement involved negotiation between two sophisticated corporate entities, both of which fully understood the rights and obligations of the agreement before they executed it. Therefore, the defendants argue, there was no fraud involved in the execution of the agreement. The defendants also emphasize that La-than’s allegations of fraud relate to the agreement generally and are not directed to the forum-selection clause. Thus, the defendants urge that Lathan has not met the standard for the applicability of the fraud exception to enforcement of the forum-selection clause.

In Ex parte Leasecomm Corp., 879 So.2d 1156, 1159 (Ala.2003), this Court held that the proper inquiry to determine whether the fraud exception to the enforcement of a forum-selection clause is applicable is “whether the forum-selection clause is the result of fraud in the inducement in the negotiation or inclusion in the agreement of the forum-selection clause itself.” 879 So.2d at 1159.

In its answer to the defendants’ petition for a writ of mandamus, Lathan does not address the issue of fraud in the inducement with regard to the forum-selection clause. With the exception of alleging that Soprema is an international corporation, Lathan does not dispute Soprema’s statement of facts surrounding the execution of the agreement. Lathan has offered no evidence to establish that enforcement of the forum-selection clause would be unfair on the basis that the agreement was affected by “fraud, undue influence or overweening bargaining power.” Therefore, Lathan has failed to clearly establish that enforcement of the forum-selection clause would be unfair.

Next, the defendants contend that Lathan failed to establish that enforcement of the forum-selection clause would be unreasonable because Ohio “would be seriously inconvenient” as a venue for the trial of this case.

“In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [ (Ala.1999) ].
“ “When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.’
“Ex parte Northern Capital Res. Corp., 751 So.2d at 14.”

Ex parte Rymer, 860 So.2d 339, 342-43 (Ala.2003).

The defendants argue that enforcement of the forum-selection clause is not unreasonable because, they say, 1) the parties to the agreement are sophisticated business entities with ready access to counsel and with the capacity to understand and appreciate contractual terms, 2) the subject matter of the agreement is authorizing Lathan to install a complex commercial roofing system designed and manufactured by Soprema, 3) the chosen forum is the place of Soprema’s headquarters, as well as the place of residence of two of the individual defendants, 4) the agreement, as well as its forum-selection clause, is clear and unambiguous, and 5) no “extraordinary facts” have arisen to make Ohio, the selected forum, seriously inconvenient.

We agree with the defendants that when the five factors set forth in Ex parte Northern Capital Resource Corp., 751 So.2d 12, 15 (Ala.1999), as quoted in Ex parte Rymer, are applied to the facts of this case, trial in Ohio, the forum chosen in the forum-selection clause, does not appear be unreasonable or so difficult and seriously inconvenient as to deprive Lathan of its day in court. As the defendants point out, the parties in this case are business entities and businesspersons. Soprema is an Ohio corporation that manufactures and sells roofing products; Lathan is an Alabama corporation that installs commercial roofs. The subject matter of the agreement authorizes Lathan to install roofing systems manufactured by Soprema and grants Lathan “the nonexclusive right to hold itself out as an authorized Soprema roofing contractor and to install Soprema roofing systems within the jurisdictional boundaries of the United States.” Thus, the evidence clearly establishes that both parties to the agreement are reasonably sophisticated and have knowledge of the subject matter of the agreement.

Additionally, the forum-selection clause in clear and unambiguous language provides that the chosen forum for “[a]ny suit, action, or other proceeding which arises out of or is based upon the subject matter of this Agreement” is an Ohio state court with jurisdiction over Medina County, Ohio, or the United States District Court for the Northern District of Ohio. Sopre-ma’s headquarters is in Medina County, Ohio. Indeed, the language clearly indicates that Lathan, when it executed the agreement, knew that it was authorized to install Soprema roofing systems throughout the United States, but it agreed that litigation arising out of its relations with Soprema and its authorization to install Soprema roofing systems would be conducted in Ohio.

Moreover, Lathan does not argue that it did not understand the terms of the forum-selection clause; instead, it argues that the claims in its complaint are outside the scope of the forum-selection clause. This argument, however, lacks a basis in fact because without the agreement, which authorizes Lathan to act as a Soprema contractor, Lathan would not have a cause of action against Soprema. Lathan’s complaint rests upon Soprema’s alleged denial that Lathan is a Soprema authorized contractor and Soprema’s failure to provide adequate documentation to UWF to support Lathan’s bid for the UWF project. Thus, Lathan’s cause of action arises out of the subject matter of the agreement and falls within the scope of the agreement and, consequently, within the scope of the forum-selection clause.

Lastly, Lathan does not establish that extraordinary facts have arisen since the execution of the agreement that would make Ohio seriously inconvenient as a forum. Lathan’s argument that Ohio is a seriously inconvenient forum for its action because “most of the witnesses are located in Alabama” and the majority of the documents are located in Alabama is not persuasive. Lathan was aware of the potential inconvenience of conducting litigation in a location different from its corporate headquarters or a job site before it executed the agreement; therefore, these facts do not establish that “extraordinary circumstances” have arisen since the agreement was entered into so as to make Ohio seriously inconvenient as a forum.

In summary, under the factors set forth in Northern Capital Resource, Lathan has not established that enforcement of the forum-selection clause would be unreasonable.

In its answer to the defendants’ petition for a writ of mandamus, Lathan argues that the defendants have waived enforcement of the forum-selection clause by engaging in 22 months of discovery on the merits of Lathan’s complaint and by filing a permissive counterclaim. Lathan maintains that these actions evidence the defendants’ intention to abandon enforcement of the forum-selection clause. We disagree.

When the trial court addressed the defendants’ motion to dismiss, the trial court conditionally denied the motion in a written order; that order states:

“Discovery must be performed before the Court determines whether the ‘outbound forana clause’ controls the issue of venue given the allegations of the complaint and positions of the parties expressed at oral argument on the motion to dismiss.”

The trial court’s order expressly directed discovery pertaining to the allegations of the complaint. Compliance with the trial court’s order and engaging in discovery addressing the merits of the complaint therefore cannot be held to be evidence of the defendants’ intention to abandon enforcement of the selection-forum clause. Moreover, the defendants’ filing of a counterclaim does not indicate an acquiescence to the jurisdiction of the Mobile Circuit Court or a substantial invocation of the litigation process; rather, it evidences the defendants’ diligence in conducting the ordered discovery and preparing for litigation if their motion to dismiss is denied.

Finally, Lathan argues that enforcement of the forum-selection clause is unreasonable because, it says, enforcement of the clause would divide this action into separate cases: its case against the defendants in Ohio and the defendants’ case against it, based on their counterclaim, in the Mobile Circuit Court. La-than maintains that if the forum-selection clause is enforced, this action will be split, and splitting causes of action or claims is against Alabama policy that promotes judicial economy and convenience and fairness to the parties.

“ ‘The enforcement of a forum-selection clause creates a serious inconvenience if it would result in two lawsuits involving similar claims or issues being tried in separate courts. ’ Alpha Sys. Integration, Inc. v. Silicon Graphics, Inc., 646 N.W.2d 904, 909 (Minn.Ct.App.2002) (emphasis added). ‘A forum-selection clause is also unreasonable if its enforcement would contravene a strong public policy of the forum in which the suit is brought.’ Id. at 910.”

Ex parte Leasecomm Corp., 886 So.2d at 63.

Lathan’s argument is speculative and conclusory. Lathan does not provide this Court with adequate facts with regard to the defendants’ counterclaim to support its contention; therefore, we cannot address this argument.

Lathan had the burden of establishing that enforcement of the forum-selection clause would be unfair or unreasonable; it has not done so.

Conclusion

The defendants have established that they have a clear legal right to the enforcement of the forum-selection clause because Lathan has failed to establish that enforcement of the clause would be unfair or unreasonable. The trial court exceeded the scope of its discretion in denying the defendants’ motion to dismiss. We direct the trial court to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

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

      . According to Lathan, Soprema assisted UWF in developing the project specifications, including the bid-document requirements.

      . In Ex parte Leasecomm Corp., 879 So.2d at 1159, this Court recognized that general claims of fraud — and other torts — can be litigated in the forum agreed upon by the parties in a forum-selection clause.