author:
SOUTHWICK, J., for the Court.
      KING, C.J.,

text:
    Curtis GORDON, Successor to Longleaf Timber Co., Inc., an Oregon Corporation, Appellant v. Ralph GORDON, Individually and as Executor of the Estate of Inez Gordon, Ruth Evans Gordon, Joanne Gordon and Nancy G. Ben, Appellees.
    No. 2005-CA-00007-COA.
    Court of Appeals of Mississippi.
    May 19, 2006.

      Robert M. Logan, Newton, attorney for appellant.
    James B. Everett, Decatur, attorney for appellees.
   SOUTHWICK, J., for the Court.

¶ 1. Twenty years ago a timber company brought suit for reimbursement of the price it paid for a warranty timber deed on land in which the grantor did not have the right to sell the timber. The owners of all the interests in the land were joined. An interim decree was entered in 1995 allowing the sale of some of the timber. From the proceeds, repayment of the original consideration for the timber and part of the accumulated interest on that sum was made. A partial summary judgment was entered in March 1996, assessing liability for the purchase price and awarding interest from the date of suit. Reserved were two collateral issues for later resolution.

¶ 2. A final decree was not entered until July 2004. The chancellor denied interest after March 1996 on the part of the debt not satisfied from the timber sale proceeds, denied attorneys’ fees, and also refused to impose a lien on the defendant’s property. We find error in these rulings. Consequently, we reverse and remand for further proceedings.

FACTS

¶ 3. In September 1983, Inez Gordon executed a timber deed to Longleaf Timber Company on two tracts of land in Newton County. Longleaf paid Mrs. Gordon $48,652 for the timber. In a post-conveyance title search, Longleaf discovered that Mrs. Gordon did not have adequate title. Because of the dispute, no timber was ever cut on either tract pursuant to the 1983 deed. Timber was cut on one tract in about 1995 only as a result of a new contract entered by a special commissioner appointed by the chancellor. This litigation has been an effort by Longleaf and its assignees to be reimbursed the $48,652 purchase price, plus interest and attorneys’ fees.

¶ 4. According to a 1991 stipulation, Mrs. Gordon had only a life estate in one of the two tracts. As to that tract, Mrs. Gordon could not as a life tenant convey any timber rights to others. The timber on the first parcel has not been the subject of court orders in this suit. On the second tract, Mrs. Gordon had a half interest in fee simple and a life estate in the remaining half interest. Longleaf learned that there were title problems with their deed before cutting any timber on the two tracts. Longleaf and the Gordon family entered into negotiations.

¶ 5. In November 1985, Mrs. Gordon conveyed and warranted both tracts to her son, Ralph Gordon, but reserved a life estate. The deed stated that the conveyance was “subject to outstanding timber deeds of record.”

¶ 6. With no resolution through negotiations, Longleaf filed suit on September 18, 1986. Sought was a determination of ownership of the two tracts, an award of money damages and attorneys’ fees, and a lien on Mrs. Gordon’s undivided interest to secure payment of damages.

¶ 7. In March 1995, nine years after the complaint was filed, an agreed interim decree was entered that determined the ownership of the timber on the tract in which Inez Gordon had owned a half interest in fee simple. A special commissioner was named to sell the timber on that tract, and the proceeds were to be paid into court. In August 1995, an agreed order permitted the $123,923.08 received in the timber sale to be disbursed. One half was paid to Curtis Gordon, who in 1994 was assigned Longleafs claims and has replaced that company as plaintiff. The remainder was paid to the other owners. Inez Gordon is now deceased. The defendants are Ralph Gordon as an heir and as executor of her estate, along with the remaindermen of the life estate that Mrs. Gordon owned in the tract that remains in dispute. We will refer to all defendants as “Ralph Gordon.”

¶ 8. In March 1996, the court granted partial summary judgment. Curtis Gordon as Longleafs assignee was awarded the $48,652 that had been paid Inez Gordon in 1983. Also awarded but not quantified was interest that had accrued from the date of the complaint. An ending date for the interest was not indicated. The remaining issues were finally tried eight years later in July 2004. The trial court found that Curtis Gordon was entitled to prejudgment interest at a rate of eight percent per year from the date the complaint was filed until summary judgment was granted, which spanned September 1986 to March 1996. The court denied all interest after that time and denied attorneys’ fees. The court amended the judgment in December 2004 to award $200 in attorneys’ fees.

¶ 9. The court also denied Curtis Gordon a lien on the Ralph Gordon property. Final judgment for $85,627.44 was entered in August 2004. This figure was reduced by a credit of $62,162.46 from timber pro-eeeds previously paid, leaving a balance of $23,464.98 payable by Ralph Gordon.

DISCUSSION

¶ 10. Before delving into the individual issues, we address appellee Ralph Gordon’s failure to file a brief with this Court. An appellee’s failure to file a brief is “tantamount to confession of error,” and we should affirm only if after a review of the record and the appellant’s arguments, we are confident that there was no error. Dethlefs v. Beau Maison Dev. Co., 458 So.2d 714, 717 (Miss.1984). This scale gives more weight to an appellant’s arguments than would usually be allowed. Nonetheless, we must still find error. We do, as will be explained.

Issue 1: Post-Judgment Interest

¶ 11. In the 2004 final judgment, Curtis Gordon was denied interest after March 29, 1996, which was the date of a partial summary judgment, on whatever he was owed that had not been satisfied with the timber proceeds in August 1995. About $62,000 had been paid to Curtis Gordon in 1995. The 1996 judgment held that Curtis Gordon was entitled to reimbursement of the $48,652 paid by Longleaf and prejudgment interest beginning on the date suit was filed in 1986. That 1996 judgment did not calculate a dollar figure for interest. Explicitly retained for later decision was the issue of attorneys’ .fees and implicitly the exact amount of the prior and any further interest.

¶ 12. A determination of the amount of interest to be paid was made for the first time in the 2004 final judgment. It calculated that the original award plus interest from 1986 through the date of the 1996 judgment would total about $85,000. The balance of this amount that was not paid in 1996 was therefore about $23,000 and has been owing since that time.

¶ 13. The interest to be awarded, if any, on that $23,000 beginning on March 29,1996, is one of the issues given us on this appeal. The complaint sought interest beginning on the date of the 1983 timber deed. Interest on a contract debt can be calculated under Mississippi Code Section 75-17-1 (Supp.2005). That section provides that the “legal rate of interest on all ... contracts shall be eight percent (8%) per annum, calculated according to the actuarial method.... ” Id. That statute is often the authority used for setting prejudgment interest when the claim is under a contract or instrument such as a deed. Estate of Baxter v. Shaw Assoc., Inc., 797 So.2d 396, 404 (Miss.Ct.App.2001). The timber deed constituted a contract between Inez Gordon and Longleaf, in which Mrs. Gordon incorrectly represented that she had the right to convey the timber. Discretion to permit prejudgment interest in a breach of contract suit is with the trial judge, at least when the contract does not itself provide a rate of interest. Warwick v. Matheney, 603 So.2d 330, 341-42 (Miss.1992); see also Sunburst Bank v. Keith, 648 So.2d 1147, 1152-53 (Miss.1995) (prejudgment interest proper absent bona fide dispute as to the amount of damages or liability).

¶ 14. Under Section 75-17-1, interest from the date of the breach until judgment may at the discretion of the trial judge be awarded. Here, there was an interest award from the date of filing suit until an interim judgment; thereafter, interest was denied. Neither party seeks reversal of the award of interest through March 1996. We therefore neither discuss nor disturb that award.

¶ 15. In determining whether there was error in denying interest after the date of the partial summary judgment in 1996, we must first decide whether that is the kind of judgment to which the post-judgment interest statute applies. The final judgment was in 2004, but the chancellor referred to the litigation period until 1996 as “prejudgment” and that afterwards as “post-judgment.” Words can mean different things in different contexts. The context for us is whether the partial summary-judgment was a “judgment” as meant in the statute regarding interest on judgments. Miss.Code Ann. § 75-17-7 (Rev. 2000). A 1989 amendment extends the statute’s reach back to the commencement of litigation, but that change applies only to causes of action that accrued after June 30, 1989. Id., Editor’s Note (citing 1989 Miss. Laws. Ch. 311, § 7).

¶ 16. This is the provision that controls interest on a “judgment” in the present litigation:

Ail judgments and decrees founded on any contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments and decrees shall bear interest at the rate of eight percentum (8%) per annum.

1975 Miss. Laws ch. 336, § 1, amending Miss.Code Ann. § 75-17-7. There was no interest rate stated in the timber deed, so all judgments in this case would bear interest at eight percent.

¶ 17. In deciding if the partial summary judgment was a “judgment [or] decree” to which this statute applies, we find useful the distinction that has been found in this statute between verdicts and judgments. No interest was required simply because of a jury verdict. If a long delay occurred after verdict and before judgment, interest under the former version of this statute was applied at the date of an actual judgment. Grice v. Central Elec. Power Ass’n, 230 Miss. 437, 457-58, 96 So.2d 909, 911 (1957) (describing precedent that reversed trial court’s grant to defendant of a judgment notwithstanding the verdict; interest should have been allowed only as of the date of the Supreme Court’s judgment upholding the verdict, as no trial court judgment awarding money existed).

¶ 18. A judgment in the most general sense is a judicial act that establishes rights and liabilities to the extent possible in a particular suit. Gill v. Jones, 57 Miss. 367, 370 (1879). Orders, opinions, verdicts, and other declarations in a trial court are the building blocks for a judgment. We will not engage in further discussion of general labels because they often mislead: for example, there are in the judicial parlance “final orders” and “interim judgments.”

¶ 19. The statutory language that we apply does not use a modifying word such as “final” to limit the kinds of judgments to which interest applied. Miss. Code Ann. § 75-17-7. For purposes of the Rules of Civil Procedure, a “judgment” includes a chancellor’s decree “and any other order from which an appeal lies.” M.R.C.P. 54(a). Under the terminology of the rules, a “judgment” is something that can be appealed. A partial summary judgment would not be a Rule 54 “judgment” unless specifically certified as one under Rule 54(b), but that does not answer whether it would be a Section 75-17-7 “judgment.” The statute regarding interest on judgments far predates the adoption of the Rules of Civil Procedure in 1981. The same term in each may serve somewhat different purposes. Rule 54 is seeking to force the use of the word only to appeal-able matters; Section 75-17-7 was using the word to determine what awards of money would earn interest.

¶ 20. Orders of a court are subject to revision until a final judgment is entered. M.R.C.P. 54(b). Even a final judgment is subject for a limited time to modification under procedural rules. See M.R.C.P. 59 & 60. Therefore, the fact that this partial summary judgment was not final is simply an explicit example of the constant though time-limited right to change all judgments. Subject to the right to amend, the entry of a partial judgment constitutes the judge’s final decision on some of the issues in a case, reserving remaining issues for later disposition. A judgment that determines the amount of damages to be paid even when the resolution of other issues will occur at a later time has definitively set at least part of the financial liability in the case. The fixed amount will be constantly diminishing in value as the case continues in the trial court unless interest is awarded.

¶ 21. The literal language and clear purposes of the prior version of Section 75-17-7 convince us that a partial summary judgment has the requisite formalities and relative finality to make it the kind of judgment on which interest was to be awarded.

¶22. Though the issue was not analyzed and the case is thus of limited prece-dential value, it is of moment that the Supreme Court required a defendant to pay interest beginning on the date of a partial summary judgment that had awarded actual damages but reserved punitive damages issues. Mississippi State Bar v. Nichols, 562 So.2d 1285, 1288 (Miss.1990). The partial and final judgments in the case were entered prior to the 1989 amendment to Section 75-17-7. Id. at 1287.

¶23. Having found the 1996 partial summary judgment to be a Section 75-17-7 “judgment,” we apply the statute applicable to causes of action that arose when this one did in 1983: “All other judgments and decrees [in which a contract rate is not provided] shall bear interest at the rate of eight percentum (8%) per annum.” 1975 Miss. Laws ch. 336, § 1. The failure to award interest on the 2004 final judgment is not properly labeled an abuse of discretion. Instead, since the 1975 law applied, refusal was a violation of statutory mandate. Brand v. Brand, 482 So.2d 236, 237-38 (Miss.1986) (refusal to award interest on judgment was reversible error). The amount unpaid at the time of the March 29, 1996 partial summary judgment shall bear eight percent interest from that date.

Issue 2: Attorneys’ fees

¶ 24. The plaintiff claimed attorneys’ fees. The trial court essentially awarded none, giving $200. The plaintiff asked to present evidence on reasonable fees, which the chancellor stated would be admitted, but the chancellor also indicated that he was not going to increase the award.

¶ 25. Our first question is on what basis fees could be awarded, since the usual rule is that parties pay their own fees unless an exception applies. Miller, Attorneys’ Fees § 8:1, in 1 Jackson & MilleR, Encyclopedia op Miss. Law (2001). The complaint was entitled “Complaint for Breach of Warranty” and for certain relief. Attorneys’ fees were requested. An entitlement to fees was therefore presented as a component of a breach of warranty under the timber deed. The deed itself does not mention attorneys’ fees.

¶ 26. Among the exceptions to the usual rules on attorneys’ fees has been when there is a failure of one of the five covenants implied in a warranty deed. Id. at § 8:59 (citing Howard v. Clanton, 481 So.2d 272 (Miss.1985)). The Supreme Court has held that attorneys’ fees are proper when there is a failure of warranty in a timber deed. Greenlee v. Mitchell, 607 So.2d 97, 109 (Miss.1992) (citing Miss. Code Ann. § 89-1-33 (Rev.1999); Howard, 481 So.2d at 275). A plaintiff is entitled to reasonable attorneys’ fees, not to exceed the purchase price. Id.

¶ 27. This is a proper case for an award of actual attorneys’ fees and not of just a token amount. Among the issues on appeal is that the chancellor after announcing an award of $200 in fees rejected the relevance of evidence or argument. The amount of a reasonable fee is a discretionary matter based on evidence. Reasonableness includes equitable considerations such as the fact that twenty-plus years of litigation (with long dormant periods) arose from the failure of the original plaintiff Longleaf to check title before entering a timber deed. Perhaps it was a cost-cutting lack of diligence that led to Longleaf s contracting with Inez Gordon in the first place.

¶ 28. We reverse the present attorneys’ fee award. On remand, evidence should be taken on the issue of attorneys’ fees and an award made consistently with the controlling law.

Issue 3: Lien

¶ 29. The plaintiff in the complaint sought a lien on Inez Gordon’s undivided interest in the property covered by the timber deed. Inez Gordon conveyed her interest in the property to Ralph Gordon in 1985, prior to suit being filed in 1986. No lis pendens was then of record. At the 2004 hearing, the plaintiff modified the request for a lien because of the changes in ownership. A lien on Ralph Gordon’s interest in this same property was the new request. The chancellor used the fact that the conveyance from Inez to Ralph Gordon occurred before filing of suit as the basis to determine that the interest that Ralph Gordon received was free of the claims later brought by the plaintiffs.

¶ 30. By statute, a lis pendens notice is required in real estate suits “unless the claim be founded upon an instrument which is recorded,” an exception arising from the fact that the recorded instrument constitutes notice of the interest. Miss. Code Ann. § 11-47-3 (Rev.2002) (emphasis added). This claim is based on a recorded timber deed, which was referenced in the deed from Inez Gordon to Ralph Gordon. More importantly, Ralph Gordon had actual notice of Longleaf s claims of a failure in the timber warranty prior to his deed from Inez Gordon. The failure to have notice filed in the lis pendens record affects only “bona fide purchasers or incumbrancers” of the real estate, not those with actual notice of the claim. Miss. Code Ann. § 11— 47-9 (Rev.2002).

¶ 31. Regardless of the lis pendens issues, a judgment constitutes a lien on all of a defendant’s property once that judgment is enrolled. Miss.Code Ann. §§ 11-7-191 and 11-7-197 (Rev.2002). Therefore a successful plaintiff is entitled at least to the judgment lien. If the trial judge was seeking to deny that lien also, that too was error.

¶ 32. We reverse and order that a lien on Ralph Gordon’s property be imposed.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF NEWTON COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, P.J., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C. J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY MYERS, P.J., AND CHANDLER, J. IRVING, J., NOT PARTICIPATING.

KING, C.J.,

Dissenting:

¶ 34. To date, an appellee’s brief has not been filed in this case. Joseph v. Mississippi Employment Sec. Comm’n, 771 So.2d 410, 413(¶ 10) (Miss.Ct.App.2000), gives two courses of action when this occurs:

We shall, in this court, at our discretion, on default of appellee, take one or the other of the following two courses: (1) When the record is complicated or of large volume, and the case has been thoroughly briefed by appellant with a clear statement of the facts, and with apt and applicable citations of authorities, so that the brief makes out an apparent case of error, we will not regard ourselves as obliged to look to the record or to search through it to find something by which to avoid the force of appellant’s presentation, but will accept appellant’s brief as confessed and will reverse. Or (2) when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

Id. (citing W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527-28 (1932)).

¶ 35. I find that this case clearly falls within the second course of action. After reviewing the record and the appellant’s brief, I believe that the chancellor did not commit reversible error, and should be affirmed.

1. Was the trial court correct in denying plaintiffs claim for post-judgment interest?

¶ 36. Interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness; it is denied when its exaction would be inequitable. 47 C.J.S. Interest & Usury § 6 (1982). Awarding of interest is not a question of law, and it is the tendency of courts to charge and allow interest in accordance with the principles of equity so that justice may be accomplished in each case. Id. Unless a case be found, which is conclusive authority establishing a precedent, the safest way for a court of law or equity to decide all questions pertaining to interest is according to the plainest and simplest considerations of justice and fair dealings. Id.

¶ 37. On August 28,1995, $123,923.08, being the net proceeds from the sale of timber from tract 2, was ordered disbursed with Curtis Gordon to receive one-half, $62,162.46, of these proceeds. On March 29, 1996, Curtis Gordon received a partial summary judgment in the amount of $48,652 plus interest of 8% from the date of filing September 18,1986. By final order, dated August 12, 2004, the Chancellor awarded prejudgment interest of $36,975.44, for a total award of $85,627.44, but denied post-judgment interest. The record reflects the following during arguments on July 27, 2004.

THE COURT: Okay. You’ve made your proffer. The next issue. Prejudgment interest?
MR. LOGAN: Yes, sir.
THE COURT: It’s 8 percent by statute. Back when this case was filed, we had a statute that set forth 8 percent about how many years ago, Mr. Everett, that statute was amended? Ten, 12 or 15 years ago?
MR. EVERETT: I think it was amended in 1989.
THE COURT: '89. So, 15 years ago while this lawsuit has lingered on this docket for 15 years or more. 8 percent post-judgment interest.
Next issue.
MR. LOGAN: Your Honor, that’s correct. It’s my understanding that the Court has discretion with regard to the percent of the post-judgment interest.
THE COURT: And that would be from what date? What is the date of the judgment?
MR. LOGAN: The date of that is March 29,1996.
THE COURT: That judgment has existed since March 29,1996?
MR. LOGAN: Yes, Sir.
THE COURT: The Court granted $48,652, together with interest, in an amount to be determined and credited against that judgment, $62,162.46 disbursed to Curtis Gordon pursuant to the Court’s order of August 28, 1995, almost a year earlier. So, he got his money before he had his judgment. That’s interesting.
The plaintiffs motion for summary judgment is denied with respect to the prayer for setting aside. Okay, we have taken care of that.
I don’t know. There is no equity in this case. It’s been on the docket way too long. It’s been on the docket 18 years. Prejudgment interest of 8 percent would run from when to when, Mr. Logan?
MR. LOGAN: The date of filing to the date of judgment.
THE COURT: The judgment would be 3/29/96. The date of filing is 9/18/86. That’s ten years. That’s enough interest. I’m going to deny post-judgment interest. Ten years’ worth of interest at 8 percent. It shouldn’t have ever happened to start with. Everybody bears some fault in that, including the Court.

¶ 38. Because of the length of time that the ease apparently remained dormant on the docket, the trial judge did not award Curtis Gordon’ any post-judgment interest. The chancellor found that the court and Curtis Gordon were to blame for the ease lying dormant on the docket, that it was against equitable principles to penalize Ralph Gordon and Inez Gordon’s estate for that failure, and that the award of ten years pre-judgment interest was enough. While the record is silent as to the specifics of the delay in bringing this case to finality, I am of the opinion that the primary responsibility to get a matter set for trial and concluded rests with the plaintiff. The docket sheets contained in the clerk’s papers indicate that between November 4, 1997, and April 12, 2004, a period of almost seven years, there were no actions taken in this case. I agree that a claimant is entitled to be fully compensated for his claim. However, the claimant cannot just sit back and not make some reasonable effort to mitigate his damages. Under the facts of this case, mitigation would have required getting this matter set for trial so a final calculation of any sums due to him could be made by the trial court. The net effect of the majority opinion is to reward the plaintiff for his slothfulness. I would therefore affirm the chancellor.

2. Was the trial court correct in awarding plaintiff attorney fees of $200 when the amount claimed was in excess of $6,000?

¶ 39. The trial court is the appropriate decision maker to award attorney’s fees and costs. Mabus v. Mabus, 910 So.2d 486, 488(¶ 7) (Miss.2005) (citing Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478(¶ 7) (Miss.2002)). “Unless the chancellor is manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal.” Id. (citing Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss.1997)). In determining the reasonableness of an award for attorney’s fees, a judge may consider the following factors from Rule 1.5 of the Mississippi Rules of Professional Conduct:

1. [T]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
2. [T]he likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. [T]he fee customarily charged in the locality for similar legal services;
4. [T]he amount involved and the results obtained;
5. [T]he time limitations imposed by the client or by the circumstances;
6. [T]he nature and length of the professional relationship with the client;
7. [T]he experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. [WJhether the fee ⅛ fixed or contingent.

¶ 40. The chancellor did not award any attorney’s fees in his final judgment. It was not until the amended final judgment was entered on December 22, 2004, that the chancellor awarded $200 in attorney’s fees.

¶ 41. Curtis Gordon also complains that the court erred in not allowing any testimony on the issue of attorney’s fees. Although the court did not allow testimony on this issue, it ordered an affidavit to be filed with the court detailing the charges. The affidavit submitted to the court contained several columns of numbers detailing dates, hours, fees, and expenses. But, there was no explanation given as to what the hours, fees, and expenses were expended on. In the absence of such detailed explanations, I believe that this Court has no basis to find that the chancellor abused his discretion in awarding attorney’s fees of only $200. A copy of the affidavit on attorney’s fees is attached to this dissent as an exhibit.

3. Whether the trial court was correct in denying Curtis Gordon a lien against the real property transferred by Inez Gordon to Ralph Gordon?

¶ 42. When the issue of the lien came before the court on July 24, 2004, Curtis Gordon requested a hen on Tract 2 for the purpose of securing attorney’s fees and interest. This request was denied by the trial court. On appeal, Curtis Gordon asserts that he is a creditor, and that he should be granted a lien on the property until the monies owed to him have been paid. An equitable lien is usually impressed to reflect an express agreement that property to be burdened was intended to be held as security for the obligation of the promisor. Dudley v. Light, 586 So.2d 155, 159 (Miss.1991) (citing Acacia Mutual Life Ins. Co. v. Newcomb, 26 Del.Ch. 60, 21 A.2d 723 (1941)). However, a lien may also be impressed out of recognition of general principles of right and justice. Id.

¶ 43. In denying Curtis Gordon’s request for a lien on the real property, the court found that the purchase price had been paid. The only monies left to be paid were those of interest and attorney’s fees. The court also cited a failure by both Curtis Gordon and the court for failing to see the matter to its finality sooner. Therefore, the chancellor decided that it would be inequitable to penalize Ralph Gordon, Inez Gordon’s estate, and the other parties for that failure.

¶44. As a judgment creditor, Curtis Gordon was entitled to a judgment lien. However, I would note that the decision of the chancellor to deny Gordon a lien against the real property in no way impacted the judgment lien to which he was entitled. That lien was available to him by simply enrolling the judgment in the judgment rolls maintained by the circuit clerk.

¶ 45. For the foregoing reasons, I would affirm the chancellor.

MYERS, P.J. AND CHANDLER, J., JOIN THIS OPINION.

      . A life tenant may cut timber only for her own needs, such as for firewood, fencing, fuel, and necessary structures. Chapman v. Thornhill, 802 So.2d 149, 153 (Miss.Ct.App.2001).


source: Caselaw Access Project

author: PER CURIAM. LYONS, Justice

license: Public Domain

text:
    Ex parte David EASON. (In re David Eason v. State of Alabama).
    1041225.
    Supreme Court of Alabama.
    Nov. 18, 2005.
    Thomas M. Goggans, Montgomery, for petitioner.
    Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for respondent.
   PER CURIAM.

David Eason pleaded guilty to first-degree theft of property, a violation of § 13A-8-3, Ala.Code 1975. At the time of the guilty-plea colloquy, the trial court found Eason guilty of first-degree theft, but withheld formal adjudication to allow Eason to apply for a pretrial diversion program. After Eason’s application for pretrial diversion was denied, the trial court sentenced Eason to five years’ imprisonment. Before sentencing Eason, the trial court did not formally pronounce him guilty of first-degree theft or enter a judgment of guilt.

Eason moved the trial court to set aside the judgment of guilt entered pursuant to his guilty plea, arguing that his guilty plea was not knowingly and voluntarily entered. The trial court denied that motion, and Eason appealed. In his brief to the Court of Criminal Appeals, Eason argued that the Court of Criminal Appeals should dismiss the appeal because the trial court did not formally adjudicate him guilty by expressly pronouncing and entering a judgment of guilt, pursuant to Rule 26.2, Ala. R.Crim. P., and that, therefore, the Court of Criminal Appeals did not have jurisdiction over the appeal. The Court of Criminal Appeals, in an unpublished memorandum, held that when the trial court informed Eason of the range of possible punishment associated with his guilty plea and sentenced Eason in accordance with his guilty plea, the trial court entered an implied judgment of guilt and that the judgment was appealable; therefore, the Court of Criminal Appeals concluded that it had jurisdiction over the appeal and addressed the merits of Eason’s appeal. Eason v. State (No. CR-03-1900, April 15, 2005), 926 So.2d 1081 (Ala.Crim.App.2005) (table). We granted Eason’s petition for a writ of certiorari to determine whether a trial court is required to enter a formal adjudication of guilt before an appeal may be taken.

Standard of Review

“ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004)(quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

Discussion

Eason contends that the Court of Criminal Appeals did not have jurisdiction to consider his appeal because, he says, he was never formally adjudicated guilty of first-degree theft.

Section 12-22-130, Ala.Code 1975, gives a defendant in a criminal case the right to appeal; that Code section provides:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.”

“Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt.” Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980).

Here, the State does not refute Eason’s contention that the trial court did not expressly adjudicate him guilty of first-degree theft. Instead, the State agrees with the Court of Criminal Appeals that the trial court implicitly adjudicated Eason guilty and that this implied adjudication is a judgment sufficient to support an appeal.

Rule 26.1, Ala. R.Crim. P., defines “judgment” and “determination of guilt” as follows:

“ ‘Judgment’ means the adjudication of the court based upon a plea of guilty by the defendant, upon the verdict of the jury, or upon its own finding following a nonjury trial, that the defendant is guilty or not guilty.”
“ ‘Determination of guilt’ means a verdict of guilty by a jury, a finding of guilty by a court following a nonjury trial, or the acceptance by the court of a plea of guilty.”

Rule 26.2(b)(1), Ala. R.Crim. P., states:

“Upon a determination of guilt on any charge, or on any count of any charge, judgment pertaining to that count or to that charge shall be pronounced and entered together with the sentence. Pronouncement of judgment may be delayed if necessary until such time as sentence can be pronounced.”

Rule 26.9(a), Ala. R.Crim. P., provides: “Judgment shall be pronounced in open court. A judgment of conviction shall set forth the plea, the verdict, the findings, if any, and the adjudication.”

The Committee Comments to Rule 26.1 state:

“There is no absolute requirement in Alabama that the court enter a formal adjudication of guilty upon the record where the sentence is in compliance with a verdict of guilty, the reasoning being that a judgment of guilt is implied from the sentence. Thames v. State, 12 Ala.App. 307, 68 So. 474 (1915); Shirley v. State, 144 Ala. 35, 40 So. 269 (1906); Driggers v. State, 123 Ala. 46, 26 So. 512 (1898). A formal adjudication of guilt is required for the smooth operation of the rule. This is in keeping with dictum in Driggers that, ‘[t]he judgment entry in all criminal cases where there is a conviction should recite in express words that the defendant is adjudged guilty by the court as found by the jury. There should always be the judgment of the court upon his guilt.’ 123 Ala. 46, at 48, 26 So. 512, at 513.”

It appears the Standing Committee on the Alabama Rules of Criminal Procedure, although acknowledging precedent establishing that a judgment of guilt might be implied from a responsively entered sentence, decided that the dictum in Driggers v. State, 123 Ala. 46, 26 So. 512 (1898), should be deemed to trump that precedent so as to require a judgment entry in all criminal cases formally and expressly adjudicating a defendant’s guilt.

In Driggers, the Court, after lamenting the slipshod judgment entries it was encountering in many eases, nonetheless found sufficient a judgment entry, which, after reciting the return of a guilty verdict by the jury and assessing a $100 fine; continued to note simply that the defendant, having failed to pay the fine and costs, was ordered to be confined in the county jail until retrieved to “perform hard labor for [the] county for and during the period of thirty days as punishment for this offense.” 123 Ala. at 48, 26 So. at 513. The Driggers Court determined:

“In the case before us the language employed in the minute entry is barely sufficient to uphold the conviction, but under the liberal construction given to words of similar import in the case of Wilkinson v. The State, 106 Ala. 23, [17 So. 458 (1894),] we hold that enough is expressed to show that the judgment of the court was invoked and pronounced upon the guilt of the defendant.”

123 Ala. at 49, 26 So. at 513.

In Wilkinson v. State, 106 Ala. 23, 17 So. 458 (1894), in turn, the initial judgment entry, after reciting that the defendant had been found guilty of first-degree murder, continued “ ‘it is, therefore, considered, and is so adjudged, that you be confined in a penitentiary of the State for life,’ etc.” 106 Ala. at 28, 17 So. at 459. The Court declared that “[t]his was sufficient, without more.” Id. The Court referenced, however, an earlier case as containing “very full directions in respect to sentences to be pronounced in criminal cases” and noted that the trial court in the case before it,

“no doubt, out of an abundance of caution, two days after pronouncing judgment and during the term, amended the judgment entry of the sentence, by adding after the words, ‘that you,’ and before the succeeding words, ‘be confined,’ etc., the additional words, ‘are guilty of murder in the first degree, and it is further considered and adjudged that you.’ The omission of these words in the beginning, did not render the sentence insufficient or void, but it would have been fuller and more complete, if they had first appeared therein.”

106 Ala. at 28,17 So. at 459.

Subsequent to Driggers this Court and the Court of Criminal Appeals on a number of occasions reaffirmed the proposition that a judgment by the court imposing sentence in accordance with a guilty verdict or a guilty plea sufficiently implies the judgment of guilt and serves as a judgment of conviction that will support an appeal. Shirley v. State, 144 Ala. 35, 40 So. 269 (1906); Thames v. State, 12 Ala. App. 307, 68 So. 474 (1915) (citing Drig-gers, among other cases, as authority for the proposition that even though the trial court had failed to enter a formal adjudication of guilt upon return by the jury of a verdict of guilty, “[t]his is not necessary when there is, as here, a sentence in compliance with the verdict of guilty, since from the sentence a judgment of guilt or conviction is implied.” 12 Ala.App. at 308, 68 So. at 475); Carmichael v. State, 213 Ala. 264, 104 So. 638 (1925); Elliott v. State, 283 Ala. 67, 68, 214 So.2d 420, 421 (1968)(“Even though no formal judgment of guilt appears on the minutes, there appears a sentence by the trial court in compliance with the verdict of guilt. It follows that an implied judgment of guilt results, which will support an appeal.”); and McCray v. State, 46 Ala.App. 588, 589, 246 So.2d 475, 476 (Crim.1971)(“If no formal adjudication of guilt appears, but sentence is imposed by the court in accordance with the verdict, there is an implied judgment of guilt which will support an appeal.”). We find no reason to abandon this precedent.

As noted earlier, Rule 26.1(a)(1), Ala. R.Crim. P., defines “judgment” as “the adjudication of the court ... that the defendant is guilty or not guilty.” Although the Alabama Rules of Criminal Procedure do not undertake to define “adjudication,” we may consider, by analogy, Rule 58(b), Ala. R. Civ. P., which provides: “A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgment or order, or the minute entry thereof, will be sufficient if it ... indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.” (Emphasis supplied.) See also Hayden v. Harris, 437 So.2d 1283 (Ala.1983).

Because a judgment of conviction does not have to be phrased in formal language or include particular words of adjudication, we hold that if the record is clear that the trial court intended to adjudicate a defendant guilty and the sentence order necessarily involves the substance of the adjudication, then a judgment of conviction has been entered and the defendant may appeal.

Considering the whole record in this case, it is clear that the trial court intended to adjudicate Eason guilty in response to his guilty plea, and the sentencing order necessarily involved the substance of the adjudication. The record establishes that after the trial court found that Eason had entered his plea voluntarily and knowingly, the trial court accepted the plea and found him guilty of first-degree theft of property. Several months later, the trial court sentenced Eason in accordance with the range of punishment for a conviction of first-degree theft of property, a Class B felony. The record unequivocally establishes that Eason was aware that he was being sentenced for a conviction of first-degree theft of property. The record also establishes that the trial judge believed he had adjudicated Eason guilty of theft of property, that he entered the proper sentence, and that the conviction and sentence were ready for appeal. The trial court’s deter-initiation of guilt and the entry of the sentence adequately establishes that the trial court adjudicated Eason guilty and that the conviction and sentence were ripe for appeal.

Conclusion

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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

LYONS and WOODALL, JJ., dissent.

LYONS, Justice

(dissenting).

I must respectfully dissent.

The Committee Comments to Rule 26.1, Ala. R.Crim. P., state:

“There is no absolute requirement in Alabama that the court enter a formal adjudication of guilty upon the record where the sentence is in compliance with a verdict of guilty, the reasoning being that a judgment of guilt is implied from the sentence. Thames v. State, 12 Ala. App. 307, 68 So. 474 (1915); Shirley v. State, 144 Ala. 35, 40 So. 269 (1906); Driggers v. State, 123 Ala. 46, 26 So. 512 (1898). A formal adjudication of guilt is required for the smooth operation of the rule. This is in keeping with dictum in Driggers that, ‘[t]he judgment entry in all criminal cases where there is a conviction should recite in express words that the defendant is adjudged guilty by the court as found by the jury. There should always be the judgment of the court upon his guilt.’ 123 Ala. 46, at 48, 26 So. 512, at 513.”

(Emphasis added.) Obviously, the portion of the Committee Comments noting the absence of a requirement of a formal adjudication addressed the state of the law in Alabama before the promulgation of the Alabama Rules of Criminal Procedure. Neither the State nor the majority opinion cites any cases from this Court, decided after the Alabama Rules of Criminal Procedure took effect in 1991, recognizing an implied adjudication of guilt, and my research has revealed none. Rather, the majority considers persuasive language contained in Rule 58(b), Ala. R. Civ. P. (“A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication.”). One searches in vain for a similar embrace of laxity in the Alabama Rules of Criminal Procedure or the Committee Comments to those rules. On the contrary, Rule 26.2(b)(1), Ala. R.Crim. P., provides: “Upon a determination of guilt on any charge, or on any count of any charge, judgment pertaining to that count or to that charge shall be pronounced and entered together with the sentence.” (Emphasis added.)

In light of the foregoing explicit language, I would hold that, in order for an appellate court to exercise jurisdiction over an appeal in a criminal proceeding to which the Alabama Rules of Criminal Procedure applied at the time of sentencing, there must have been a formal adjudication of guilt. I express no opinion on the question of whether out-of-state convictions based on implied adjudications are “convictions” for any purpose. See, generally, Morgan v. State, 733 So.2d 940 (Ala.Crim.App.1999) (overruling Hurth v. State, 688 So.2d 275 (Ala.Crim.App.1995)).

WOODALL, J., concurs.


author: HARWOOD, Justice.

text:
    PATRIOT MANUFACTURING, INC., and Southridge Homes, a division of Patriot Manufacturing, Inc. v. Tasha Mitchell JACKSON. Southern Energy Homes, Inc. v. Stephen R. Shoultz. Southern Energy Homes, Inc. v. George Dunigan and Jean Dunigan.
    1040915, 1040935, and 1041017.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      Winston R. Grow of Partridge, Smith, P.C., Mobile, for appellant Patriot Manufacturing, Inc.
    W. Scott Simpson of Batchelor & Simpson, P.C., Birmingham; and N. Lee Cooper, Robert D. Hancock, and Edward S. Sledge IV of Maynard, Cooper & Gale, P.C., Birmingham, for appellant Southern Energy Homes, Inc.
    J. Charles McCorquodale IV of McCor-quodale & McCorquodale, Jackson, for ap-pellees.
    Robert E. Sasser and Patrick L.W. Sef-ton of Sasser, Bolton, Stidham & Sefton, P.C., Montgomery, for amicus curiae Alabama Manufactured Housing Institute, in support of Southern Energy Homes, Inc.
    Matthew C. McDonald and KirMand E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amicus curiae Business Council of Alabama, in support of Southern Energy Homes, Inc.
   HARWOOD, Justice.

Patriot Manufacturing, Inc., and South-ridge Homes, a division of Patriot (jointly “Patriot”), appeal from an order entered by the Washington Circuit Court denying their motion to compel arbitration. Southern Energy Homes, Inc. (“Southern Energy”), likewise appeals from an order entered by the Clarke Circuit Court denying motions to compel arbitration in two separate cases. We consolidated the three appeals; we now reverse.

I. Patriot

Tasha Mitchell Jackson purchased a mobile home manufactured by Patriot. Patriot provided Jackson with a “Limited Warranty” to accompany the mobile home. That warranty included the following statement (entirely in capital letters): “THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.” The warranty made no mention of arbitration. In addition to signing the purchase agreement and receiving the warranty, however, Jackson signed various other documents, including a stand-alone arbitration agreement. That arbitration agreement provided, in pertinent part:

‘All disputes, claims or controversies of every kind or nature that may arise between or among [Jackson], Retailer, Patriot, [or] ... their affiliates, subsidiaries, officers, agents or employees shall be settled by binding arbitration conducted pursuant to the provisions of 9 U.S.C. Section 1, et seq., and administered by the American Arbitration Association (‘AAA’) under its commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. Without limiting the generality of the foregoing, it is the intention of [Jackson], the Retailer and Patriot to resolve by binding arbitration all disputes, whether arising out of tort, contract, or otherwise, arising from, concerning or related to the Home, its design, sale, delivery, warranties, setup, repair, installation, manufacture, performance, condition, or financing or any insurance obtained in connection with the Home, including any dispute, controversy, claim or question of any nature whatsoever related to the enforceability, validity, scope or interpretation of this Arbitration Agreement (hereinafter the ‘Agreement’). Arbitration under this Agreement shall be mandatory and not permissive.”

(Emphasis added.) The arbitration agreement further provided that all parties “hereby voluntarily waive any right to a jury trial.”

Jackson sued Patriot asserting various claims, including violation of 15 U.S.C. § 2301 et seq., known as the Magnuson— Moss Warranty-Federal Trade Commission Improvement Act. Patriot filed a motion to stay and to compel Jackson to arbitrate her claims, including her Magnu-son-Moss Act claim. The trial court entered an order stating:

“Since the manufacturers’ written warranty never mentions arbitration, the express warranty claims and the claims brought pursuant to [the Magnu-son-Moss Act] shall not be submitted to arbitration. While the express warranty claims against [Patriot] are not required to be submitted to arbitration, pursuant to Ex parte Thicklin, 824 So.2d 723 (Ala.2002), all other claims in the plaintiffs complaint shall be submitted to arbitration pursuant to the American Arbitration Association’s (AAA) procedures for consumer-related disputes.”

II. Southern Energy

In December 2001, Stephen R. Shoultz purchased a mobile home manufactured by Southern Energy; in September 2002, George Dunigan and Jean Dunigan purchased a mobile home manufactured by Southern Energy. Southern Energy provided both Shoultz and the Dunigans a “Limited Warranty” covering their respective mobile homes. In those warranties was the following statement (entirely in capital letters): “THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.” The warranties made no mention of arbitration. In addition to signing their respective purchase agreements and receiving their warranties, however, Shoultz and the Dunigans each signed other documents, including a stand-alone, two-page arbitration agreement. That arbitration agreement provided, in pertinent part:

“You and We agree to arbitrate any and all claims and disputes arising from or relating to the Contract, the Manufactured Home, the sale of the Manufactured Home, the design and construction of the Manufactured Home, the financing of the Manufactured Home, and any other disputes between You and Us, including any disputes regarding the enforceability, interpretation, breadth, scope and meaning of this Agreement. The arbitration will be binding. You and We further agree to waive any right to trial by jury in any civil action arising from or relating to the Contract, the Manufactured Home, the sale of the Manufactured Home, the design and construction of the Manufactured Home, the financing of the Manufactured Home and any other disputes between You and Us.”

The arbitration agreement further defined “Contract” to “include, but not be limited to, ... any warranty.” (Emphasis added.) In addition to the language quoted immediately above indicating that the parties were waiving their right to a trial by jury, the arbitration agreement also contains the following separate, underlined section:

“IMPORTANT — JURY WAIVER
‘Ton and We hereby irrevocably waive our right to trial by jury on any claims that You now have or may hereafter acquire against Us or that We now have or may hereafter acquire against You. This waiver will remain enforceable even if this Agreement, or any portion of it, is otherwise found to be unenforceable.”

(Capitalization in original.) The parties signed the arbitration agreement on signature lines located immediately below this jury-waiver section.

The Dunigans sued Southern Energy asserting various claims, including violation of the Magnuson-Moss Act. Shoultz sued Southern Energy a few months later, also asserting various claims, including violations of the Magnuson-Moss Act. In each action, Southern Energy filed a motion to compel arbitration. The trial court consolidated the Shoultz and Dunigan actions for purposes of considering Southern Energy’s motions to compel arbitration and conducted a hearing on the motions. The court denied Southern Energy’s motions as to both Shoultz and the- Dunigans. The reasoning stated by the trial judge in his order was identical to the reasoning he, as the judge also handling Jackson’s action, had expressed in denying Patriot’s motion. Southern Energy timely appealed as to each order. Upon motion filed by Southern Energy, this Court consolidated the two appeals. This Court further consolidated those two appeals with Patriot’s appeal for purposes of writing one opinion.

III. Standard of Review

We review de novo the denial of a motion to compel arbitration. Springhill Nursing Homes, Inc. v. McCurdy, 898 So.2d 694, 696 (Ala.2004). The party seeking to compel arbitration has the burden of proving both that a contract calling for arbitration exists and that the contract evidences a transaction affecting interstate commerce. McCurdy, 898 So.2d at 696. Once this prima facie showing has been made, the burden then shifts to the party opposing arbitration to present substantial evidence indicating that the supposed arbitration agreement is either invalid or inapplicable to the dispute as to which arbitration is being sought. Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1081 (Ala.2004).

IV. Analysis

A Federal Arbitration Act

The Federal Arbitration Act (“the FAA”) provides that arbitration agreements are “valid, irrevocable, and enforceable” unless there are “grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2, thus establishing a strong “federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), the United States Supreme Court noted that the duty to enforce an arbitration agreement is “not diminished when a party bound by an [arbitration] agreement raises a claim founded on statutory rights.” McMahon, 482 U.S. at 226, 107 S.Ct. 2332. Consequently, barring circumstances not suggested in this case, “the [FAA] ‘provides no basis for disfavoring agreements to arbitrate statutory claims by skewing the otherwise hospitable inquiry into arbitrability.’ ” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

“Like any statutory directive,” however, the FAA is a congressional creation, and its mandate “may be overridden by a contrary congressional command.” McMahon, 482 U.S. at 226, 107 S.Ct. 2332. “If Congress did intend to limit or prohibit waiver of a judicial forum ..., such an intent “will be deductible from [the statute’s] text or legislative history,’ ... or from an inherent conflict between arbitration and the statute’s underlying purposes.” McMahon, 482 U.S. at 227, 107 S.Ct. 2332 (quoting Mitsubishi, 473 U.S. at 628, 105 S.Ct. 3346).

B. Magnuson-Moss Act

The Magnuson-Moss Act was enacted for three basic purposes: “[i]n order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products.” 15 U.S.C. § 2302(a). This section of the Magnuson-Moss Act consequently requires that a warrantor who provides a warranty “shall, to the extent required by the rules of the [Federal Trade] Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.” Id. This language establishes that a warrantor need not disclose every conceivable term or condition of the warranty, but only those that the rules of the Federal Trade Commission (“the FTC”) require it to make known.

The Magnuson-Moss Act delegated to the FTC the authority to require warran-tors to include various terms and conditions within written warranties. To that end, Congress suggested in the Magnu-son-Moss Act various terms the FTC might choose to require. Among the 13 suggested terms or conditions, Congress recommended that the FTC require war-rantors to disclose “[ijnformation respecting the availability of any informal dispute settlement procedure offered by the war-rantor.” 15 U.S.C. § 2302(a)(8).

The FTC obliged Congress by including within its rules and regulations a provision requiring that warrantors “clearly and conspicuously disclose in a single document ... [i]nformation respecting the availability of any informal dispute settlement mechanism elected by the warrantor.” 16 C.F.R. § 701.3(a)(6). (Emphasis added.) Section 701.3(a) is colloquially referred to as the “single-document rule” because of its requirement that certain information be disclosed within a single document, i.e., the written warranty.

Besides recommending that the FTC require warrantors to disclose “the availability of any informal dispute settlement procedure,” 15 U.S.C. § 2302(a)(8), Congress also charged the FTC with prescribing rules for such a procedure. 15 U.S.C. § 2310(a). An informal dispute-settlement procedure, or as Congress chose alternatively to designate it at one point (15 U.S.C. § 2310(a)(1)) and as the FTC likewise chose to characterize it, an informal dispute-settlement mechanism, would serve as a means by which customers dissatisfied with the warrantor’s performance of its obligations could seek redress, yet it would spare a warrantor the burden of immediately litigating a dispute concerning its performance of warranty obligations. Congress explicitly stated that if a warrantor establishes a conforming informal dispute-settlement mechanism, “the consumer may not commence a civil action ... unless he initially resorts to such procedure.” 15 U.S.C. § 2310(a)(3). (Emphasis added.) Congress’s use of the word “unless” demonstrates that a consumer may nevertheless pursue an action after resorting to the dispute-settlement mechanism; thus, the outcome of the mechanism is nonbinding in character.

C. Precedent

In Ex parte Thicklin, 824 So.2d 723 (Ala.2002), this Court confronted a question of first impression in Alabama: whether a stand-alone arbitration agreement may be used to compel arbitration of Magnuson-Moss Act claims. In Thicklin, we held that the Magnuson-Moss Act requires that an arbitration agreement be contained within the body of the warranty. 824 So.2d at 730. Because the agreement in Thicklin existed apart from the warranty, we reversed the trial court’s order compelling arbitration.

Thicklin was decided in express reliance upon a decision of the United States Court of Appeals for the Eleventh Circuit: Cunningham v. Fleetwood Homes of Georgia, 253 F.3d 611 (11th Cir.2001). Patriot and Southern Energy, as well as amici curiae the Business Council of Alabama and the Alabama Manufactured Housing Institute, argue that Thicklin should be revisited and overruled to the extent it holds that a stand-alone arbitration agreement cannot be used to compel arbitration of Magnu-son-Moss Act claims. They contend that the rationale of Cunningham, which this Court followed in deciding Thicklin, has been delegitimized by a later decision of the Eleventh Circuit, Davis v. Southern Energy Homes, Inc., 305 F.3d 1268 (11th Cir.2002). We shall examine these decisions in turn.

1. Cunningham

In Cunningham, a mobile-home manufacturer moved to compel arbitration as to the plaintiffs’ claims under the Magnuson-Moss Act, relying on a stand-alone arbitration agreement executed between the plaintiffs and the seller of the mobile home. The Court of Appeals for the Eleventh Circuit affirmed the trial court’s order denying the motion. Cunningham’s holding rests upon the following rationale.

First, the Eleventh Circuit examined 15 U.S.C. § 2310(a), the codified form of the Magnuson-Moss Act — which provides that a consumer may not file suit until he first resorts to an informal dispute-settlement mechanism — and noted that although the subsection makes the mechanism a prerequisite to filing suit, it does not necessarily bar arbitration. The court nevertheless concluded that § 2310 played a role in prohibiting arbitration in Cunningham. The court stated only that “other key provisions of Magnuson-Moss, together with § 2310, cast considerable doubt on the propriety of the particular arrangement at issue here,” 253 F.3d at 620 (emphasis added), although not explaining exactly how § 2310 did so.

One of the “other key provisions” identified by the Cunningham court as casting doubt on the arbitration agreement at issue was § 2302(a), which requires disclosure of the terms and conditions of the warranty. That section, however, was quoted so as to omit a key phrase:

“The Act requires that any warrantor that chooses to provide a written warranty with a consumer product ‘shall ... fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.’” '

253 F.3d at 620 (quoting 15 U.S.C. § 2302(a)). As noted in Part IV.B. of this opinion, however, the full content of that particular quoted phrase declares that any such warranty “shall, to the extent required by the rules of the [FTC], fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.” 15 U.S.C. § 2302(a) (emphasis added). The emphasized qualifier is critical and was essentially ignored by the Cunningham court in its construction of § 2302(a), which that court concluded requires a warrantor to disclose within the body of the warranty the existence of an arbitration agreement. 253 F.3d at 622, 624. That conclusion was, in the final analysis, necessarily bottomed on the premise that arbitration is a variety of an “informal dispute settlement mechanism,” or, as the Court of Appeals for the Eleventh Circuit interchangeably termed it, an “informal dispute resolution mechanism.” 253 F.3d at 622 (emphasis added). This is reflected in the court’s explanations that the manufacturer’s attempt “to compel arbitration where [the manufacturer] has failed to disclose in the warranty a term or clause requiring the Cunninghams to utilize an informal dispute resolution mechanism contravenes the text, legislative history, and purposes of the Magnuson-Moss Warranty Act,” 253 F.3d at 622, and that “[b]ecause we conclude that [the manufacturer’s] failure to disclose in the warranty a term or clause requiring the Cunninghams to utilize an informal dispute resolution mechanism runs afoul of the disclosure requirements of the Magnuson-Moss Warranty Act, we affirm the district court’s order declining to compel arbitration of the written or express warranty claims.” 253 F.3d at 624.

The final feature of Cunningham’s reasoning was that compelling arbitration under the stand-alone arbitration agreement would present inherent conflicts with the purpose of the Magnuson-Moss Act. The court focused upon two different “purposes” of the Magnuson-Moss Act. First, the court stated that arbitration of the agreement conflicted with the Act’s “purpose of providing clear and concise warranties to consumers.” 253 F.3d at 622. As noted, the Magnuson-Moss Act stated among its purposes the aim “to improve the adequacy of information available to consumers, [and to] prevent deception.” 15 U.S.C. § 2302(a). The Act’s purpose of improving the adequacy of information is aimed at incrementally enhancing the content and amount of information disclosed, but, importantly, only “to the extent required by the rules of the [FTC].” 15 U.S.C. § 2302(a). With regard to its purpose of preventing deception, Congress saw fit in the Magnuson-Moss Act to define a “deceptive warranty,” thus providing this Court with guidance as to the exact practices that Congress sought to prevent. A written warranty is deceptive when it “fails to contain information which is necessary in light of all of the circumstances, to make the warranty not misleading to a reasonable individual exercising due care.” 15 U.S.C. § 2310(c)(2)(h). In considering all of the circumstances, we must consider all other documentation included with the sale of the mobile homes at issue here. The stand-alone arbitration agreements, which all parties signed, specifically stated that the parties agreed to arbitrate all claims, including those regarding warranties. Surely due care, if it means anything, at the very least requires reading a document one has signed.

Cunningham also stated that requiring a warrantor to place an arbitration agreement within the body of the warranty furthered Congress’s purpose of “ ‘improving] competition in the marketing of consumer products.’ ” 253 F.3d at 623 (quoting 15 U.S.C. § 2302(a)). Allowing the warrantor to rely on an arbitration agreement apart from the warranty would, the court said,

“confound[] this purpose in that consumers confronted with warranties that do not contain arbitration clauses that are nonetheless subject to arbitration will have no basis for judging the suitability of a warranty. This is of particular concern because the warranty is issued unilaterally, and, as the enactors of Magnuson-Moss noted, a consumer cannot bargain with manufacturers to adjust the terms of a warranty offered voluntarily by the manufacturer: ‘[t]he warranty provisions of [Magnuson-Moss] are not only designed to make warranties understandable to consumers, but to redress the ill effects resulting from the imbalance which presently exists in the relative bargaining power of consumers and suppliers of consumer products.’ [40 Fed.Reg. 60,168 (Dec. 31, 1975) (quoting S.Rep. No. 93-151 (1973)) ]. The unilateral nature of warranties by manufacturers makes full disclosure in a single document mandatory for the attainment of Congress’s goals.”

253 F.3d at 623 (emphasis added).

Although we acknowledge Congress’s concern regarding the complexity of warranties and the potentially unequal bargaining power between consumers and warrantors, and although those factors can affect competition in marketing consumer products, presuming that the existence of an enforceable arbitration agreement would make a product or its warranty less “suitable” conflicts with the United States Supreme Court’s determination that arbitration agreements do not affect the substantive rights of a party, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626-27, 105 S.Ct. 3346. As Cunningham itself acknowledged, “[ajgreements to arbitrate are essentially forum-selection clauses.” 253 F.3d at 617. The Cunningham court’s reasoning that a warranty that does not disclose the existence of an arbitration agreement is somehow “unsuitable” and thus somehow “confounds” Congress’s designs is therefore dubious.

2. Thicklin

Less than one year after Cunningham was decided, this Court issued its opinion in Ex parte Thicklin, expressly relying solely upon Cunningham to conclude that a manufacturer’s failure to disclose in the body of the warranty the existence of an arbitration agreement violated the disclosure requirement in the Magnuson-Moss Act. In so doing, we also overruled our prior decision in Cavalier Manufacturing, Inc. v. Jackson, 823 So.2d 1237 (Ala.2001), to the extent it conflicted with the holding in Thicklin. Jackson had held that the Magnuson-Moss Act did not apply to arbitration agreements not expressed in warranties. 823 So.2d at 1241.

3. Davis

On September 19, 2002, in Davis, the United States Court of Appeals for the Eleventh Circuit reversed the order of the district court denying a manufacturer’s motion to compel arbitration. Davis concerned an arbitration clause within the body of a written warranty. The Eleventh Circuit decided that nothing in the text, legislative history, or inherent purposes of the Magnuson-Moss Act conflicted with the enforcement of binding arbitration. In so doing, the Davis court explicitly rejected any notion that arbitration is equivalent to or a variety of an informal dispute-settlement mechanism.

Looking to the text of the Magnuson-Moss Act, the court observed that “[t]he fact that [the Magnuson-Moss Act] regulates § 2310(a) informal dispute settlement procedures does not mean that the Act precludes a court from enforcing a valid binding arbitration agreement,” proceeding to state that the court was “unpersuaded that Congress intended to bar binding arbitration agreements in the language of [the Magnuson-Moss Act].” 305 F.3d at 1275. Looking to the legislative history of the Magnuson-Moss Act, the Eleventh Circuit quoted from the resolution of a similar issue by the United States Court of Appeals for the Fifth Circuit in Walton v. Rose Mobile Homes LLC, 298 F.3d 470 (5th Cir.2002), which observed:

“[TJhere is still no evidence that Congress intended binding arbitration to be considered an informal dispute settlement procedure. Therefore the fact that any informal dispute settlement procedure must be non-binding, does not imply that Congress meant to preclude binding arbitration, which is of a different nature.”

Davis, 305 F.3d at 1276 (quoting Walton, 298 F.3d at 476). The court then concluded that “Congress did not express a clear intent in [the Magnuson-Moss Act’s] legislative history to bar binding arbitration agreements in written warranties.” 305 F.3d at 1276. Finally, the court concluded that the inherent purposes of the Magnuson-Moss Act and the FAA were completely harmonious. 305 F.3d at 1276-77.

4. Summary and Implications

The appellants argue that the rationale of Davis abrogates the reasoning of Cunningham and thus of Thicklin. Because Davis specifically cites Cunningham without disapproval, this assertion requires closer examination of the rationale of Cunningham.

The first prong of Cunningham’s holding was at least implicitly premised upon the close relationship, if not the outright synonymity, between arbitration and informal dispute-settlement mechanisms, for the purposes of the disclosure requirements of the Magnuson-Moss Act and, consequently, of the single-document rule. Davis wholly repudiates such a notion, demonstrating that nothing in the text, legislative history, dr purposes of the Mag-nuson-Moss Act indicates that arbitration was in any way considered or accounted for in crafting the Magnuson-Moss Act, including the provisions in the Act for informal dispute-settlement mechanisms. We therefore read Davis to discredit the assumption unavoidably present in Cunningham that arbitration, for purposes of determining whether there was sufficient disclosure, is a type of informal dispute-settlement mechanism and therefore to seriously undercut the first aspect of the Cunningham analysis.

In addition, we view the other prong of Cunningham’s rationale — that the underlying purposes of the Magnuson-Moss Act would be frustrated by enforcement of any arbitration clause not contained within the warranty itself — as similarly without support. As explained above, the Cunningham court found no conflict between arbitration and the actual purpose of the Magnuson-Moss Act of enhancing information, instead finding a conflict only with the notion of “clear and concise warranties.” 253 F.3d at 622. Also, the Cunningham court found a conflict with the Magnuson-Moss Act’s purpose of fostering competition only by viewing arbitration agreements with hostility, a perspective the United States Supreme Court rejected in Mitsubishi Motors. This “purpose” analysis prong of Cunningham thus wavers upon close scrutiny and, with it, the entire holding of that case.

In short, we consider a key feature of the rationale of Cunningham significantly undermined by Davis, and the remainder of the Cunningham rationale insufficient to justify its holding, and we no longer regard Cunningham as reliable authority on the question whether a standalone arbitration agreement may be used to compel arbitration. The Magnuson-Moss Act requires disclosure in the warranty itself only “to the extent required by the rules of the [FTC],” and the FTC has seen fit to require disclosure of required resort to an informal dispute-settlement mechanism, not the completely separate process of binding arbitration. Because our decision in Thicklin on that question relied solely upon Cunningham, and additionally because no decision since Thicklin has expressly relied upon its holding on that issue, the principle of stare decisis does not weigh so heavily against á reconsideration of whether Thicklin was correctly decided. Therefore, we overrule Thicklin to the extent it holds that an arbitration agreement must be contained within a written warranty.

In their briefs, Jackson, Shoultz, and the Dunigans correctly point out that this Court’s standard of review requires us to determine first whether the movant has proved the existence of a valid contract calling for arbitration. Each plaintiff argues that the movant in his or her case (whether Patriot or Southern Energy) cannot meet this burden because, the plaintiff says, the contract calling for arbitration— the arbitration agreement — is invalid in that it is not disclosed in the warranty. This failure to disclose, assert the plaintiffs, violates the single-document rule, as interpreted by Thicklin. Having overruled Thicklin, however, we are unconvinced by the plaintiffs’ argument; rather, we conclude that the arbitration agreements upon which the motions to compel were based are valid and that both Patriot and Southern Energy have met their respective burdens.

Under our standard of review, once a movant has met its burden, the burden then shifts to the nonmovant to demonstrate that the contract is either invalid or inapplicable. Neither Jackson, Shoultz, nor the Dunigans have anticipated the possibility that this Court might find that the burden has shifted to them; thus they have not endeavored to argue that they have met their burden. Consequently, we are obliged to conclude that the plaintiffs have in fact not met the burden that shifted to them, and we therefore conclude that the motions to compel filed by both Patriot and Southern Energy are due to be granted and that the trial court erred in denying those motions.

Because the trial court erred in denying Patriot’s and Southern Energy’s motions to compel arbitration, albeit in reliance on our holding in Ex parte Thicklin, we reverse the trial court’s orders. As noted above, we overrule Ex parte Thicklin to the extent it conflicts with our decision today, and additionally, because Thicklin overruled the'holding of Cavalier Manufacturing, Inc. v. Jackson on a similar issue, we hereby reinstate the precedential value of that decision, to the extent that it does not conflict with this decision.

Conclusion

The orders of the trial court denying Patriot’s and Southern Energy’s motions to compel arbitration are reversed, and the three causes are remanded for proceedings consistent with this opinion.

1040915 — REVERSED AND REMANDED.

1040935 — REVERSED AND REMANDED.

1041017 — REVERSED AND REMANDED.

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

STUART and PARKER, JJ., concur in the result.

      . An informal dispute-settlement procedure and an informal dispute-settlement mechanism appear to be identical in form and function, differing in name only. Because of its more common usage, however, we use the term "mechanism.”

      . Although the plaintiffs executed the standalone arbitration agreement with only the seller, not the manufacturer, the Eleventh Circuit "assume[d] for the purpose of deciding this case that [the manufacturer was] entitled to the benefit of the arbitration agreement.” 253 F.3d at 614.

      . This is not to say, however, that Davis approves of the rationale used by the Cunningham court. Rather, Davis distinguishes itself from Cunningham and thus has no real reason to offer up a judgment on Cunningham.

      . As noted in our discussion of the standard of review, the movant must also prove that the contract evidences a transaction involving interstate commerce. This issue, however, is uncontroverted.