author: IRVING, J.,

text:
    Terry E. SHELTON, Appellant v. LIFT, INC., Appellee.
    No. 2006-CA-01750-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.
    Michael G. Thorne, Tupelo, attorney for appellant.

      Michael Reed Marte, attorney for appel-lee.
    Before LEE, P.J., IRVING, GRIFFIS and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Terry E. Shelton filed a complaint against Lift, Inc., alleging that a driver for Lift negligently operated a bus on which he was a passenger. The Lee County Circuit Court dismissed the complaint with prejudice because Shelton failed to effect service of process within the 120-day period and because service was hot made before the statute of limitations expired. Aggrieved, Shelton appeals, asserting that the trial court erred in finding that the miscalculation by his attorney’s paralegal did not constitute excusable neglect.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 12, 2002, Shelton, a blind resident of Lee County, Mississippi, contacted Lift to transport him to his place of employment. While en route, the driver of the bus inadvertently passed the stop where another passenger was scheduled to disembark. The driver attempted to correct his error by backing up to the passed stop but, in the process, accidently backed into another vehicle. The driver then proceeded forward and abruptly applied the brakes. This caused Shelton’s body to suddenly lunge forward. After arriving at his place of employment, Shelton began experiencing dizziness and severe pain in his neck. Shortly thereafter, he was transported to the North Mississippi Medical Center via ambulance.

¶ 4. On November 9, 2005, Shelton, through counsel, filed a complaint against Lift. According to Shelton’s attorney, his paralegal miscalculated when the 120-day period was to expire. Based on the calculations done by the paralegal, the 120-day period would have expired on April 8, 2006, when in fact the date of expiration was March 13. As such, Lift was not served with process until April 5, 2006. On May 5, 2006, Lift filed a motion to dismiss on the grounds that service of process had not been effected until April 5, 2006. On July 14, 2006, Shelton responded by filing a motion to allow out-of-time service or, in the alternative, a motion for leave to serve process out of time. Lift then filed a response to Shelton’s motion, along with an amended motion to dismiss. After a hearing on the amended motion, the trial court dismissed the case with prejudice.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. This Court conducts a de novo review of a trial court’s grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988(¶ 54) (Miss.2004). “A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed ‘a discretionary ruling and ... entitled to deferential review’ on appeal.” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186(¶6) (Miss.2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1197(¶ 18) (Miss.1999)).

¶ 6. In his single assignment of error, Shelton contends that he is entitled to relief because his attorney’s paralegal miscalculated the date on which the 120-day period expired. Specifically, Shelton argues that “[the] dismissal was founded in its entirety upon the trial’s [sic] court[’s] abject refusal to recognize that mistakes can be made by even the most discerning of trial counsel and that counsel’s support staff.”

¶ 7. Rule 4(h) of the Mississippi Rules of Civil Procedure provides:

Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause as to why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(emphasis added). Moreover, the Mississippi Supreme Court has held that “[t]o establish ‘good cause’ the plaintiff must demonstrate ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 677(¶ 12) (Miss.2002) (emphasis added) (quoting Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996)). There is no dispute that Shelton’s attorney’s paralegal incorrectly calculated the expiration date for the 120-day period. At the hearing, the paralegal testified that the miscalculation was simply “an honest mistake.” Nevertheless, the law in this State is clear that “simple inadvertence or mistake of counsel” is neither good cause nor excusable neglect. Id.

¶ 8. Shelton relies heavily on Pincay v. Andrews, 389 F.3d 853 (9th Cir.2004), to support his argument. However, in instances, such as the one presented here, where the law is well settled in Mississippi, we are duty bound to follow the law as announced by the Mississippi Supreme Court. As such, we decline to address his argument as it relates to Pincay.

¶ 9. We find no reversible error in the trial judge’s dismissal of the case with prejudice. Despite the provision in Rule 4(h) that the dismissal shall be without prejudice, Shelton has suffered no prejudice, as the applicable 120-day period expired on March 13, 2006, and service was not effected until April 5, 2006. See In Re Holtzman, 823 So.2d 1180, 1182 n. 1 (Miss.2002).

¶ 10. We also find that the trial court did not abuse its discretion in denying Shelton’s motion for an extension of time to serve process. Therefore, we affirm the judgment of the Lee County Circuit Court.

¶11. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Rule 4(h) of the Mississippi Rules of Civil Procedure requires dismissal, without prejudice, of a complaint if it and a summons are not served on a defendant within 120 days after the filing of the complaint.


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    GLEN SOUTHERN, INC. and Gem Southern, Inc., Appellants v. MARSHALL COUNTY, Mississippi, Appellee.
    No. 2006-CA-01177-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Roy D. Campbell, Margaret Oertling Cupples, Jackson, attorneys for appellants.
    Justin Strauss Cluck, Kent E. Smith, Holly Springs, attorneys for appellee.
    Before MYERS, P.J., IRVING, and BARNES, JJ.
   IRVING, J„

for the Court.

¶ 1. This appeal arises from a lawsuit regarding a series of contracts entered into by Glen Southern, Inc., and Marshall County. The Marshall County Chancery Court granted summary judgment in favor of Marshall County, and Glen Southern appeals and contends that the chancellor’s decision was in error. Finding no error, we affirm.

FACTS

¶ 2. The facts in this case are not at issue and are mostly undisputed. Glen Southern and Marshall County entered into a contract in 1952 and a related lease in 1954 for manufacturing facilities in Marshall County. Marshall County owned the land and leased the facilities to Glen Southern pursuant to the Balance Agriculture with Industry (BAWI) program, which had been promulgated by the legislature. The purpose of BAWI was to bring jobs and industry to Mississippi. For almost forty years, Glen Southern leased the property from Marshall County and ran a manufacturing facility thereon. Over the course of Glen Southern’s lease, additions and updates were made to the property, and new contracts and leases were executed for these expansions. The last contract was executed in 1969, and its corresponding lease was entered into in 1977. Each lease provided for a “primary term” for the agreement between Glen Southern and Marshall County and renewal terms that Glen Southern could opt for after the expiration of the primary term. The final primary term ended in 1990, at which time Glen Southern opted to renew its contract with the county.

¶ 3. In 1992, Glen Southern sublet the Marshall County facility to E.D. Smith-Gem, Inc., for ten years. The county approved the sublease. Before the expiration of the sublease, E.D. Smith sold its interests to Havatampa, Inc., and Glen Southern negotiated a new sublease with Havatampa. Havatampa used the facilities for manufacturing until sometime in mid-2003, when it vacated the premises. After Havatampa left, Glen Southern sublet the premises to Hunter Fan, Inc., for warehousing purposes. Around the same time, Marshall County petitioned the Marshall County Circuit Court for cancellation of the leases on the bases that Glen Southern had breached its contract and had abandoned the premises. Glen Southern requested that the case be transferred to chancery court because the relief requested was one of equity, and its request was granted. Thereafter, the chancellor ruled that Glen Southern had breached the contract, thus entitling the county to cancellation of the leases.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. Unless a contract is ambiguous, interpreting its meaning is a question of law, not fact. A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 301(¶ 11) (Miss.2006). Therefore, this Court conducts a de novo review of a contract’s interpretation. Id. We must “accept the plain meaning of a contract as the intent of the parties where no ambiguity exists.” Id. at 301 (¶ 12) (quoting Ferrara v. Walters, 919 So.2d 876, 881(¶ 13) (Miss.2005)). We “will not rewrite or deem a contract ambiguous where the language is clear and indicative of its contents.” Id. (quoting Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.2d 765, 769(¶ 14) (Miss.2005)). Unless we find the contract ambiguous, we will not “go beyond the text to determine the parties’ true intent.” Id. (quoting Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752-53(¶ 10) (Miss.2003)). Summary judgment will be affirmed only if there is no genuine issue of material fact present as to the contract’s meaning. M.R.C.P. 56(c). Glen Southern and Marshall County agree that there is no genuine issue of material fact, only a question of law as to the interpretation of the relevant contracts. Therefore, we look only at the proper interpretation of the contracts.

¶ 6. Our review of the contracts reveals that their provisions are clear and unambiguous. We find that those provisions operate in favor of the county such that it is entitled to cancellation of the leases. Because the last contract and lease reference only the original contract and its attached lease, we look only at those documents. None of the intervening leases and contracts were incorporated in any way in the final contract and lease between Glen Southern and Marshall County.

¶ 7. Section ll(m) of the 1952 contract contains a provision that reads:

The Company agrees that as promptly as is reasonably possible with due diligence after delivery to it of possession of the premises it will complete the installation of such additional machinery and equipment as it shall deem necessary to the operation of a factory for the purpose of manufacturing dust mops, wet mops, and other yarn and textile products of cotton or other fibre [sic] as it may see fit, and further agrees that it will operate said premises during the primary term herein provided for the manufacture of some such product suitable to the Company. With the express provision that if the Company should abandon said premises and fail to use or operate them for a period of one continuous year except such temporary cessation as may be caused by matters not within the control of the Company, such as damage, strikes, and force maj-eur, [sic] then at the option of the County this agreement may be terminated luithout further liability to either party.

(emphasis added). Marshall County relies on the emphasized portion of the provision to support its argument that Glen Southern has abandoned the premises so as to allow termination of the agreement.. Glen Southern argues that ceasing to use the premises for manufacturing does not constitute the kind of abandonment implicated in the provision. This section was specifically incorporated in the 1969 contract.

¶ 8. Section 7(n) of the 1969 contract clarifies what purpose the facilities must be used for:

Said lease shall also provide that the Company, as promptly as is reasonably possible with due diligence after the delivery to it of possession of the premises, will complete the installation of such additional machinery and equipment as it shall deem necessary to the operation and use of the improvements contemplated by this contract, and use the same in connection with its manufacturing operation ...; provided, however, that nothing herein contained shall be construed to prevent the Company from manufacturing such other products in its factory as it may deem necessary or desirable so long as such manufacturing operation shall not constitute a nuisance or be inconsistent with the corporate powers of the Company.

(emphasis added).

¶ 9. Another provision in the 1969 contract provides that the terms and conditions of any renewal term are the same as those of the primary term, which ended in 1990:

Said lease shall also provide that the Company shall have the right and option to renew beyond the original primary term for seven (7) successive ten (10) year terms each and a final renewal term of eight (8) years, upon the terms and conditions herein stipulated for the primary term, except as said terms and conditions may be herein expressly modified for said renewal term or terms.

1969 contract, § 7(o) (emphasis added).

¶ 10. There are no provisions expressly modifying section 7(n), which plainly mandates that Glen Southern use the facility for manufacturing: “the Company ... will ... use the [machinery and equipment it installs] in connection with its manufacturing operation.” Although, as Glen Southern points out, other provisions of the contract restrict themselves to the primary term of Glen Southern’s occupation, there is no such limitation in section 7(n). In fact, section 7(o) clearly states that the renewal terms are to be on the same terms as the primary term, except as to rent and any provision expressly altered for the renewal term. As section 7(n) neither refers to rent nor does it contain an express alteration of the renewal term, section 7(n) is equally in effect during the primary and renewal terms of the lease.

¶ 11. Glen Southern also points to other provisions of the contract that limit themselves to the period of Glen Southern’s occupancy of the facility; however, section 7(n) does not limit itself to Glen Southern’s occupancy of the facility. In effect, section 7(n) creates a use restriction on the Marshall County facilities, which must be used for manufacturing in order for Glen Southern to meet the terms of its contract with Marshall County. Additionally, when sections 7(n) and (o) are viewed in conjunction with the abandonment provision in section ll(m), it is clear that Glen Southern is currently using and operating the facilities in a manner that constitutes abandonment of the premises, since the contracts require that the premises be used for manufacturing.

¶ 12. Our interpretation of the contract also gives effect to another provision that references the jobs that were intended to be created by Glen Southern’s use of the facilities. Section 7(r) of the 1969 contract reads:

Said lease shall also provide that the parties have not agreed to any definite increase of employment but the Company by the execution of the lease and the contract giving rise thereto acknowledges that in good faith the Company will use the improvements, facilities and buildings described therein in connection with the operation of its manufacturing plant above set forth with the intent to furnish employment to persons in and about the County of Marshall during its occupancy thereof.”

(emphasis added).

While the provision simply states that Glen Southern has not agreed to any “definite increase” in employment, it also states that employment is the intent of the contract. Nothing in the provision expressly allows Glen Southern to decrease employment at the facilities. There is no dispute that the warehousing that is currently taking place at the property is not providing anywhere near the number of jobs that were being provided before the facilities began being used solely for warehousing. Glen Bailey, who was deposed on behalf of Hunter Fan, testified that the facility currently employs only six full-time employees. Clearly, using the facilities only for warehousing is in conflict with section 7(r), which states that the intent of the contracts is to provide employment opportunities in Marshall County.

¶ 13. Since we have found that the contracts clearly intended for the facilities to be used for manufacturing, we turn to some of Glen Southern’s other arguments. First, Glen Southern contends that cancellation of the contracts was a severe measure that should not have been taken by the court and implies that the county should have sought some form of monetary damages. However, the contract clearly contemplates that the only remedy for a breach is cancellation of the agreement between Glen Southern and Marshall County. No other damages are contemplated by the contract. In fact, it is unclear to this Court what monetary damages Marshall County could seek against Glen Southern. The harm to the county is that the facility is not being used for manufacturing, creating an insufficient number of jobs. This is a harm that can only be remedied by exactly the relief that Marshall County has sought and been granted. Indeed, this remedy was specifically contemplated by section ll(m), which states that “this agreement may be terminated without further liability to either party” upon abandonment of the premises.

¶ 14. Glen Southern implies that termination of the agreement is duplicitous on the county’s part, as there is evidence in the record that the county has told Hunter Fan that it will be able to use the facility for warehousing regardless of whether Glen Southern prevails in the lawsuit; i.e., there is evidence that Marshall County is prepared to lease the facility to Hunter Fan for exactly the purpose for which it is being used: warehousing. Even accepting such evidence as conclusive proof of the county’s intent, what may happen in the future between Hunter Fan and Marshall County has no bearing on how the contract between Glen Southern and Marshall County must be interpreted. The contract clearly prohibits the use of the facility for any purpose other than manufacturing. By Glen Southern’s own admissions, the facility is not being used for manufacturing and has not been used for manufacturing since Hunter Fan sublet the facility. Clearly, the county is entitled to the only remedy contemplated by the contract: cancellation of the agreement and release of Glen Southern and Marshall County from any further obligations to each other.

¶ 15. Glen Southern also contends: “In arguing the facility must forever be used only for a single purpose, the County argues not only against its own actions, but also against a strong and longstanding public policy that allows lessees the maximum freedom to use them property for any lawful purpose.” As support for this argument, Glen Southern cites Kinchen v. Layton, 457 So.2d 343, 345 (Miss.1984), Andrews v. Lake Serene Prop. Owners Ass’n, Inc., 434 So.2d 1328, 1331 (Miss.1983), and Skrmetta v. BTN, Inc., 129 Fed.Appx. 906, 908 (5th Cir.2005) (a federal ease construing Mississippi state law). In Kinchen, the Mississippi Supreme Court- addressed the enforceability of a protective covenant prohibiting the placement of “temporary structures” on a residential lot. Kinchen, 457 So.2d at 344. While the Kinchen court stated that “[t]he law of this and every other state that we know anything about favors free and unobstructed use of real property,” the court also stated: “Such covenants may be employed and enforced, so long as clear language is used.” Id. at 345-46. Therefore, this case is of no help to Glen Southern, because the language in the case at bar is amply clear. The Andreivs court, which also dealt with the enforcement of a protective covenant, came to the same conclusion as the Kinchen court: that a protective covenant may be enforced so long as it is written in “clear and unambiguous wording.” Andreivs, 434 So.2d at 1331-32. Therefore, Andrews is also of no help to Glen Southern. Citing Kinchen, the Skmietta court stated: “courts may not read a restrictive covenant into an open-use contract that does not contain an express covenant of continuous use.” Skrmetta, 129 Fed.Appx. at 908. Because there is an express provision in the Glen Southern/Marshall County leases that limits use of the facility to manufacturing, Skmietta is also of no help to Glen Southern. We note that section 7(n) does not state simply that the purpose of the lease between Glen Southern and Marshall County is for Glen Southern to conduct manufacturing; rather, the contract specifically states that Glen Southern “will [use the facility] in connection with its manufacturing operation .... ” (emphasis added). This is an express prohibition on use of the facility for other purposes, not merely, as Glen Southern argues, a statement of “the parties’ intent as to the initial use of the property.”

¶ 16. Glen Southern also cites a number of cases for the proposition that statements in contracts as to purpose are generally construed permissively — to allow the stated use — rather than restrictively — to prevent other uses. See, e.g., Ewing v. Adams, 573 So.2d 1364, 1368 (Miss.1990); Sec. Builders, Inc. v. Sw. Drug Co., 244 Miss. 877, 883-84, 147 So.2d 635, 637 (1962). However, we note that none of these cases are directly on point with the case before us. The leases between Glen Southern and Marshall County were entered into pursuant to BAW-I legislation, which in 1952 mandated that the facilities be used to attract employment, specifically in fields such as manufacturing. 1944 Miss. Laws 420. It was not until several years after the initial contracts between Glen Southern and Marshall County that the legislation was changed to permit warehousing as a permissible use under BAWI. See Miss.Code Ann. § 57-3-5(2)(b) (Rev.2003). The sole purpose of the contracts between the parties was to provide employment for Marshall County. In the cases cited by Glen Southern, however, the contracts at issue were entered into between private individuals who had no such public purpose. This distinguishes those cases from the case before us. We decline to view the clear language in the contracts at issue as being merely permissive when they were clearly intended to be restrictive.

¶ 17. Glen Southern points to its pre-Hunter Fan subleases, which were approved by the county, where language was included to the effect that the facility could be used for any lawful purpose. However, as the chancellor found, while the subleases contained such language, the parties agree that the tenants before Hunter Fan used the facilities only for manufacturing. Therefore, there was no issue as to whether the property was being used in accordance with the contracts' between Glen Southern and Marshall County. However, there is now an issue as to whether the facility is being used for manufacturing. What language was contained in prior subleases has no bearing on the matter before us. Had Havatampa or E.D. Smith sought to use the facility only for warehousing, it is likely that this lawsuit would have been litigated during the term of their occupancy of the facility. The reality is that neither Havatampa nor E.D. Smith used the facility for any purpose other than manufacturing, regardless of the language in the subleases.

¶ 18. Glen Southern contends that the following language in the 1969 contract necessitates a finding in its favor: “After the expiration of the primary term, the Company may, at its discretion, assign any lease or renewal thereof or sub-let [sic] the said premises to any person, firm or corporation.” 1969 Contract, § 7(q). Glen Southern reads this to mean that, after the primary term of the lease, which expired in 1990, Glen Southern was free to sublet the premises to anyone-including a corporation or individual who would use the premises only for warehousing. We cannot agree. The clear meaning of the provision is what it says: that the county will not prevent Glen Southern from subletting the premises to whomever it chooses. However, section 7(n) requires that the facility be used for manufacturing. Therefore, whomever Glen Southern sublets the premises to must also use the facility for manufacturing. Nothing in section 7(q) removes the use restriction, although it easily could have read: “After the expiration of the primary term, the Company may, at its discretion, assign any lease or renewal thereof or sub-let [sic] the said premises to any person, film or corporation, and such person, firm or corporation may use the premises for any lawful purpose.” As previously stated, we look only to what the contract actually says, not what it might have said or what it appears that the parties might have intended it to say. In doing so, we give effect to both section 7(n) and section 7(q), whereas Glen Southern’s interpretation of section 7(q) would negate the clear meaning of section 7(n). As stated by the Mississippi Supreme Court, “[w]hen construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Royer Homes, 857 So.2d at 752(¶ 10) (citing Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992)).

¶ 19. Glen Southern also intimates that its ownership of property on three sides of the facility means that the county’s reclamation is less than optimal. Be that as it may, if the county needs any of the property owned by Glen Southern, it can enter into negotiations with Glen Southern to purchase or lease the property. Glen Southern’s ownership of the adjoining properties has no effect on the terms of its contract with Marshall County.

¶ 20. Because we find that summary judgment on behalf of the county was proper in this case, we affirm the judgment of the chancery court.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . Although this appeal is styled as though prosecuted by two separate companies, the record indicates that Glen Southern and GEM Southern are different names for the same business entity; attorneys for Glen Southern also stated as much during oral argument before this Court. Therefore, we address the Appellants only as "Glen Southern."


author: ROBERTS, J., IRVING, J.,

text:
    Timothy Lee TACKETT, Appellant v. Kim Oliver TACKETT, Appellee.
    No. 2006-CA-01157-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2007.

      Duncan L. Lott, Booneville, attorney for appellant.
    Candace Cooper Blalock, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. Tim and Kim Tackett married in September 2003, after two decades of dating. While the first year passed without incident, the parties soon began to fight over money, or the lack thereof, and other issues. Following a fight the couple had on May 18, 2005, Tim moved out of their home in Amory and filed for divorce two days later in the Chancery Court of Monroe County. In turn, Kim requested separate maintenance. After hearing testimony from the parties and other witnesses, the chancellor denied Tim’s complaint for divorce and granted Kim’s petition for separate maintenance. Aggrieved by the chancellor’s ruling, Tim now appeals. Finding no error, we affirm.

FACTS

¶ 2. Tim and Kim were married on September 6, 2003, after a courtship that lasted approximately twenty years. However, on May 18, 2005, Tim left the marital home. He filed for divorce two days later. During a trial on the matter in the Monroe County Chancery Court, the parties testified to the professed origins of Tim’s discontent with the marriage and his reasons for leaving.

¶ 3. Tim testified that Kim was constantly yelling and cursing at him, and that them arguments mostly centered around money. Additionally, Tim claimed that the couple had not had sex for six months prior to trial as a result of Kim’s loss of desire. Tim explained that the parties’ alleged animosity towards one another came to culmination on May 18, 2005. Kim wanted to trade Tim’s 1989 Toyota truck, which she claimed was in need of repair, for a newer truck. She also claimed that she wanted Tim to get a newer vehicle so the 1989 Ford Probe he was then driving, which was titled in Kim’s name, could be used by her college-bound nephew at school. Kim also suggested that they trade in the Probe so that Tim could get a newer truck. Tim complained they did not have the money for a new vehicle, in part because Kim quit her full-time job, and the May 18, 2005 argument ensued. Finally, he stated that since he left the marital home on May 18, 2005, he had not provided any support to Kim.

¶ 4. Ann Hood, the parties’ landlord, and Elizabeth Ann Carter, a neighbor, witnessed the parties arguing. Hood testified that she lived approximately 150 feet from the parties’ trailer and heard yelling and screaming, though she could not understand the words. She testified that she remembered the tone of Kim’s voice as hostile or angry, but did not remember hearing Tim. Carter stated that she also saw the parties arguing, and when Tim asked Efim to lower her voice Kim replied she was not going to and became louder. Carter also testified that she had overheard arguments from within Kim and Tim’s trailer, but could never make out what was said.

¶ 5. Prior to the parties’ marriage, Kim was diagnosed with a chemical imbalance and began taking medication. She admitted at trial that her desire to have sex lessened as a result of the medication, but claimed the couple had sex approximately once a month. Once the parties married, she changed her medication in an attempt to increase her desire, but stated that it did not help. She also stated that Tim also had a condition that hindered sexual activity, but Tim claimed that this was taken care of with medication. Kim’s medical condition also led to her resignation from her full-time position with the City of Amory as a meter reader. Kim testified that she was having problems doing her job because of depression and' anxiety. She testified that her employer suggested she quit or she would have to be let go. In July 2004 she quit. She then found part-time employment in March 2005 with the City of Amory School District driving a school bus. Kim testified that for the last three or four months prior to the separation, Tim would come home after she had gone to sleep, would not eat supper at home, and slept in the spare bedroom. Tim explained that he would go to his parent’s house, or to, a friend’s house, because he did not want to go home just to argue. Kim also suggested the couple get counseling,, but Tim refused. Tim testified that he did not feel therapy was necessary because he was happy. Kim conceded that she was partly to blame over the separation, but claimed Tim was more at fault because he left. During trial Kim and Tim testified that he left the marital home while she was at church, without any mention that he was moving out.

PROCEDURAL HISTORY

¶ 6. On May 20, 2005, Tim filed a complaint requesting a divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Kim responded and denied there were grounds for divorce. Additionally, she filed a counter-complaint for separate maintenance. Tim responded and argued that Kim was not entitled to separate maintenance because her conduct contributed to the separation. Following a May 17, 2006 trial, the trial court dismissed Tim’s request for a divorce on the ground of habitual cruel and inhumane treatment and awarded Kim separate maintenance in the amount of $1,200 per month. Aggrieved by the lower court’s ruling, Tim now appeals.

ANALYSIS

¶ 7. Our standard of review of issues surrounding domestic relations is limited by the substantial evidence/manifest error rule. Ivison v. Ivison, 762 So.2d 329(¶ 10) (Miss.2000). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). As such, a chancellor’s findings of fact will not be disturbed so long as they are supported by substantial evidence. Martin v. Lowery, 912 So.2d 461(¶ 7) (Miss.2005). With this standard in mind, we move to the issues raised on appeal.

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT KIM’S CONDUCT DID NOT MATERIALLY CONTRIBUTE TO THE SEPARATION OF THE PARTIES.

¶ 8. After reviewing the pertinent law surrounding the issue of material contribution, the chancellor held that while Kim admittedly shared in the cause of separation, she did not materially contribute to it. . Tim disagrees with the chancellor’s determination, and claims that Kim’s actions were the only contribution as there was no proof offered of Tim’s misconduct.

¶ 9. A decree for separate maintenance is a judicial command to a spouse to resume cohabitation with- one’s spouse or, in default thereof, to provide suitable maintenance of the spouse until such time as they may be reconciled- to each other. Wilbourne v. Wilbourne, 748 So.2d 184(¶ 7) (Miss.Ct.App.1999). In order for the trial court to grant a wife’s request for separate maintenance, it must be shown that (1) the separation was without fault on the wife’s part, and (2) willful abandonment of her by the husband coupled with a refusal to support. Id. Additionally, the wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife’s conduct did not materially contribute to the separation. Shorter v. Shorter, 740 So.2d 352(¶ 12) (Miss.Ct.App.1999).

¶ 10. The record shows that Kim admitted she was partly to blame for the couple’s separation, but maintained that Tim was more at fault because he left. From the testimony presented at trial, it is obvious that the parties’ separation centered around sex and money. Tim claimed that it had been six months since their last sexual encounter. However, Kim testified that despite her loss of desire this was inaccurate, and the couple had sexual relations once a month. Additionally, Kim acknowledged that she and Tim had a heated argument on May 18, 2005, and there was testimony that the couple did argue. Tim initially testified that they had an argument every week to two weeks but later claimed that arguments occurred every other day. He stated that, “[mjostly what we got into it about was money, me trying to get her to save money and she would spend it faster than I could get it in the bank.” However, there was no evidence that Kim excessively spent money. When Kim suggested counseling to try to alleviate the couple’s situation, Tim refused. Based upon the record before us, we cannot say that the trial court manifestly erred in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence.

II. WHETHER THE TRIAL COURT’S AWARD OF SEPARATE MAINTENANCE WAS EXCESSIVE.

¶ 11. The parties’ 8.05 financial statements revealed that Kim’s gross income was $700 per month (for ten months a year) and Tim’s monthly gross income was $3,707.10. Their net monthly income after deductions for taxes, insurance, and mandatory retirement was $578.10 and $2,515.88, respectively. Kim claimed on her 8.05 statement that her total living expenses amounted to $1,825.80, although she initially stated during trial that her expenses totaled $1,200 to $1,300. Tim claimed his living expenses totaled $2,270. However, $940 of those expenses were based upon the assumption that Tim leased or owned his own residence rather than living with his mother. The chancellor awarded Kim $1,200 per month in separate maintenance.

¶ 12. Six factors must be considered in setting awards of separate maintenance: (1) the health of the husband and the wife, (2) their combined earning capacity, (3) the reasonable needs of the wife and children, (4) the necessary living expenses of the husband, (5) the fact that the wife has free use of the home and furnishings, and (6) other such facts and circumstances. Shorter, 740 So.2d at (¶ 21). While an award of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not “unduly deplete the husband’s estate.” Kennedy v. Kennedy, 662 So.2d 179, 181 (Miss.1995) (quoting Thompson v. Thomp son, 527 So.2d 617, 622 (Miss.1988)). In its ruling, the trial court found that Kim was not in good physical condition, while Tim’s health was unquestioned. Secondly, noting the discrepancy in Tim’s and Kim’s financial situations, as evident from their 8.05 statements, the trial court held that Tim’s earning capacity was greatly superi- or to Kim’s. In line with the 8.05 statements, the chancellor found that Kim’s necessary expenses amounted to $1,825.80 per month, while Tim’s necessary expenses totaled $2,270. As to factor number five, the trial court held this moot as there was no martial home. Finally, the trial court considered the facts that Tim had additional assets (two retirement plans) totaling $24,153.44 and a life insurance policy, while Kim had none. The trial court also noted that, during the marriage, Kim cashed in her retirement account and spent the proceeds on various expenses, including a veterinary bill, a loan to her sister, and other debts.

¶ 13. In consideration of each parties’ financial state and additional factors considered by the chancellor, we cannot say that an award of $1,200 to Kim is excessive or that the trial court abused its discretion in awarding such. While the award is in excess of Tim’s income after expenses, such a situation is not without precedent. See Myers v. Myers, 881 So.2d 220(¶ 23) (Miss.Ct.App.2003) (reversed on other grounds by Myers v. Myers, 881 So.2d 180 (Miss.2004)) (awarding separate maintenance that amounted to 71% of the husband’s income and leaving him with a net monthly income of $1,144 with stated monthly expenses of $5,054). We affirm.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND CARLTON, JJ., CONCUR. IRVING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J. AND ISHEE, J. ISHEE, J., CONCURS IN RESULT ONLY.

IRVING, J.,

Specially Concurring:

¶ 15. I do not disagree with the majority. I think the present state of the law demands the outcome reached here. However, I write separately because I believe the facts in this case illustrate the need to change the law with respect to when a chancellor may grant a divorce on the ground of irreconcilable differences.

¶ 16. If ever there is a couple that need to be divorced, Timothy and Kim are that couple. After having dated for over twenty years, Timothy and Kim exchanged marriage vows, only to find after one year that marriage was not so blissful. Yet, they remain in a marriage that is clearly irretrievably broken, as manifested by their irreconcilable differences.

¶ 17. In my judgment, this case highlights the need for the legislature to take a fresh look at the grounds for allowing a divorce in this state. In cases where it is clear that the marriage is irretrievably broken, our chancellors should be able to grant a divorce on the ground of irreconcilable differences, even if the parties are unable or unwilling to meet the terms and conditions presently required by our statutory law for the granting of a divorce on the ground of irreconcilable differences. I can think of no public interest that is served by requiring two people to remain married under circumstances that are likely to lead only to more tension between them, especially in a situation like we have before us where one party has to pay a substantial sum of money to the other yet is unable to move on with his life.

¶ 18. Because I am obligated to uphold the law as it exists, I concur with the majority, but I do so with the fervent hope that the legislature will revisit the bases for granting a divorce in this state.

LEE, P.J., AND ISHEE, J., JOIN THIS OPINION.


author: LEE, P.J.,

text:
    Alex June DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00128-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2007.
    Alex June Davis, Appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., IRVING AND ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 18, 2006, in the Tate County Circuit Court, Alex June Davis pled guilty to one count of felon in possession of a deadly weapon. In return, the State dropped a pending kidnaping charge against Davis. Davis waived his right to have the matter submitted to a grand jury and accepted a bill of information as the charging instrument. The trial court sentenced Davis to serve three years in the custody of the Mississippi Department of Corrections as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81 (Rev.2000).

¶ 2. Davis subsequently filed a motion for post-conviction relief. After reviewing the pleadings and court files, the trial court dismissed Davis’s motion pursuant to Mississippi Code Annotated Section 99-39-11(2) (Rev.2000). Davis now appeals to this Court asserting the following issues: (1) the search warrant was invalid; (2) his right to an initial appearance was violated; and (3) there was insufficient evidence to convict him. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. WAS THE SEARCH WARRANT INVALID?

II. WAS DAVIS’S RIGHT TO AN INITIAL APPEARANCE VIOLATED?

III. WAS THE EVIDENCE SUFFICIENT TO PROVE DAVIS GUILTY?

¶ 4. Upon the entry of a valid guilty plea, certain challenges are waived by the defendant. In Davis’s case, all of his issues on appeal were waived when he pled guilty to felon in possession of a deadly weapon. We note that Davis does not argue that his guilty plea was invalid. Certain Fourth Amendment violations, including illegal searches, are waived by a guilty plea. King v. State, 738 So.2d 240-41 (¶¶ 4-5) (Miss.1999); Thornhill v. State, 919 So.2d 238, 241(¶ 16) (Miss.Ct.App. 2005). Davis waived his right to an initial appearance. Battaya v. State, 861 So.2d 364, 366 (¶¶ 7-8) (Miss.Ct.App.2003). Davis has also waived his right to challenge the sufficiency of the State’s evidence. Young v. State, 797 So.2d 239, 246(¶ 17) . (Miss.Ct.App.2001). For the foregoing reasons, we find no merit to Davis’s issues on appeal.

¶ 5. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


author: SMITH, Justice.

text:
    ELIZABETH HOMES, L.L.C., Carl Smith, and Jimmy Flanagan v. Cynthia L. CATO and Danny Cato.
    1050048.
    Supreme Court of Alabama.
    April 13, 2007.

      Mark D. Ryan and Robin A. Mahan of Mark D. Ryan, P.C., Bay Minette, for appellants.
    G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellees.
   SMITH, Justice.

The defendants below, Elizabeth Homes, L.L.C., Jimmy Flanagan, and Carl Smith, appeal from the trial court’s order denying their motion to compel arbitration of the claims asserted against them by the plaintiffs, Danny Cato and Cynthia L. Cato. We reverse and remand.

Facts and Procedural History

Elizabeth Homes sells and constructs what it describes as “single-family residential structures.” In June 2003, the Catos and Elizabeth Homes entered into a “purchase agreement” for the construction of a house on property owned by the Catos. The document contains an arbitration provision, which states:

“[Elizabeth Homes] and [the Catos] acknowledge that this agreement necessarily involves interstate commerce by virtue of the materials and components contained in the dwelling and each of the undersigned hereby agrees to arbitrate any and all disputes arising under this agreement and to be bound by the decision of the arbitrator which shall be conducted pursuant to the Construction Industry Rules of the American Arbitration Association.”

(Emphasis added.)

After the Catos moved into the house, they sued Elizabeth Homes, seeking damages for promissory fraud, breach of warranty, breach of contract, breach of implied contract, negligence and wantonness in constructing the house and the setting of its elevation, and negligence and wantonness in damaging the flooring in the house. The complaint further named Elizabeth Homes’ “managing member,” Jimmy Flanagan, and Elizabeth Homes’ office manager, Carl Smith, as defendants.

The defendants filed a motion to compel the Catos to arbitrate their claims pursuant to the arbitration provision in the purchase agreement. The motion was supported by an affidavit by Flanagan and a copy of the purchase agreement. The Ca-tos filed a response, which included no evidentiary support, and the trial court held a hearing on the motion. Subsequently, the trial court denied the motion by a notation on the case-action summary. Elizabeth Homes, Smith, and Flanagan appeal.

Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:

“ ‘A motion to compel arbitration is analogous to a motion- for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been -made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable ....” 9 U.S.C. § 2. The FAA “mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.” Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998).

The defendants produced substantial evidence — the purchase agreement and Flanagan’s affidavit — indicating that the parties entered into a contract containing a written provision to settle by arbitration a controversy thereafter arising out of the contract. Additionally, there is no dispute in the record or on appeal as to whether the transaction in this case involved interstate commerce. Therefore, the defendants’ motion to compel arbitration was properly supported by substantial evidence, and the burden then shifted to the Catos to present evidence indicating that the arbitration provision was invalid or that it did not apply to the dispute here.

I.

First, as a threshold matter, the Catos argue that Smith and Flanagan have failed to present any arguments on appeal, because the appellants’ brief contends that the judgment should be reversed only as to “Elizabeth Homes.” Thus, the Catos argue, Smith and Flanagan have waived any error as to them.

There is, however, no merit to this argument. The statement of the case in Elizabeth Homes’ brief states that Elizabeth Homes, L.L.C., Carl Smith, and Jimmy Flanagan would be referred to “collectively” as “Elizabeth Homes.” The name “Elizabeth Homes” when used in the appellants’ brief thus includes Smith and Flanagan. Additionally, the notice of appeal lists the “appellants” as Elizabeth Homes, Smith, and Flanagan, and the appellants’ brief refers in several places to the “appellants.” We find no waiver on the part of Smith and Flanagan.

II.

The Catos present numerous arguments on appeal as to why the arbitration provision does not apply in this case. First, the Catos maintain that the defendants “failed to present any evidence that the Purchase [Agreement] ever became a binding contract” because the copy of the purchase agreement submitted with the motion to compel arbitration was unauthenticated and unsigned by Elizabeth Homes.

Rule 56(e), Ala. R. Civ. P., generally requires that “[s]wom or certified copies ” of documents referred to in an affidavit offered supporting or opposing a motion for a summary judgment be attached to the affidavit. However, if an affidavit or the documents attached to an affidavit fail to comply with this rule, the opposing party must object to the admissibility of the affidavit or the document and move to strike. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312-13 (Ala.2001) (noting that a party must object to evidence submitted in support of a motion for a summary judgment that does not comply with Rule 56(e), Ala. R. Civ. P.); Chatham v. CSX Transp., Inc., 613 So.2d 341, 344 (Ala.1993) (“A party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence.”). The copy of the purchase agreement submitted with Flanagan’s affidavit was not a certified copy. The Catos, however, did not object to or move to strike the purchase agreement when it was filed with Flanagan’s affidavit. Therefore, they waived any objection based' on improper authentication of the purchase agreement. See Berry Mountain Mining Co. v. American Res. Ins. Co., 541 So.2d 4, 4-5 (Ala.1989) (holding that a nonmovant who failed to move to strike unauthenticated documents submitted in support of a motion for a summary judgment waived objection on appeal as to the admissibility of the documents).

The Catos also allege that the purchase agreement was not signed by Elizabeth Homes; thus, they argue, it is not binding. The record reveals that the signature line for Elizabeth Homes on the purchase agreement is unsigned, although Carl Smith’s signature appears above it as a witness to the Catos’ signatures. The purchase agreement states that it becomes binding “upon written acceptance by [an Elizabeth Homes] officer or upon [Elizabeth Homes’] commencing performance,” but the Catos contend that Flanagan’s affidavit fails to state that Elizabeth Homes commenced performance.

The defendants respond to this argument as follows:

“Elementary logic dictates that Elizabeth Homes could not have constructed the home without actually ‘commencing’ construction. Furthermore, the Catos’ Complaint is replete with assertions that Elizabeth Homes constructed the house. It is absurd to even suggest to this Court that despite the fact that all of the parties admit that Elizabeth Homes constructed the home, Elizabeth Homes must nevertheless specifically allege that it ‘commenced’ construction. It is quite obvious from the record that Elizabeth Homes ‘commenced’ construction. If Elizabeth Homes had not commenced construction the Catos would have absolutely no basis for relief against the [defendants] as the entirety of the Ca-tos’ Complaint is based on Elizabeth Homes’ construction of the home.”

(Appellants’ reply brief at 5.)

The Catos cite Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891 (Ala.1999), for the proposition that a party cannot enforce an agreement to arbitrate found in a contract it has not signed. However, the document at issue in Premiere Chevrolet was part of a multi-document automobile transaction, and the arbitration provision was part of a “buyer’s order” that specifically stated that it was not valid or “binding” unless signed and accepted by the automobile dealer.

Here, Flanagan’s affidavit states that Elizabeth Homes “entered into a Purchase Agreement”.with the Catos and discusses “[t]he terms of the Purchase Agreement between Elizabeth Homes, LLC[,] and Cynthia L. Cato and Danny Cato .... ” The defendants further asserted in their motion to compel arbitration that Elizabeth Homes entered into the purchase agreement with the Catos and constructed the house. The Catos never denied these assertions or presented any affidavits or evidence demonstrating that they did not enter into the purchase agreement or that the house was never constructed. Indeed, the Catos’ complaint states affirmatively that Elizabeth Homes constructed the house. Although the defendants’ motion to compel and supporting evidence are bare, thus complicating our review, given Flanagan’s affidavit we hold that the defendants presented substantial evidence that Elizabeth Homes entered into the purchase agreement with the Catos.

The Catos also argue that the defendants have failed to prove that the purchase agreement applies to the Catos’ house:

“Further, [the defendants] failed to meet [their] evidentiary burden of proving that the unsigned contract applies to the home that is the subject of the Ca-tos’ complaint. Flanagan’s affidavit failed to state that [Elizabeth Homes] constructed a home for the Catos, that it constructed only one home, or that the home on which this suit is based is the home described in the Purchase Agreement.”

(Catos’ brief at 14.)

As noted above in Vann, supra, the defendants, in moving to compel arbitration, had the burden of producing substantial evidence of “the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.” Once this was done, the burden then shifted to the Catos to present evidence indicating that the arbitration provision is invalid or that it does not apply to the dispute in question.

In this case, the Catos’ allege that Elizabeth Homes constructed a house for them, and they seek damages stemming from the construction of the house. Flanagan testified in his affidavit that Elizabeth Homes and the Catos entered into a contract — the purchase agreement — for the construction of a house; that contract contains an arbitration provision. The defendants thus met their burden of production.

Because the defendants met their burden of production, the burden then shifted to the Catos to show that the arbitration provision in the purchase agreement was invalid or that it does not apply to this dispute. Vann, supra. The Catos did not challenge the validity of the arbitration provision. Additionally, the Catos never argued to the trial court that the purchase agreement did not involve the construction of the house at issue, and they presented no evidence on this point. On appeal, the Catos still do not deny that the purchase agreement was a contract to build the house they argue was built negligently and wantonly. Because the Catos presented no evidence showing that Elizabeth Homes constructed the house pursuant to some other agreement or contract, whether written or oral, the Catos failed to meet their burden in showing that the arbitration provision in the purchase agreement does not apply. We thus see no merit in the Catos’ argument. See Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 855 (11th Cir.1992) (“A party cannot place the making of the arbitration agreement in issue simply by opining that no agreement exists. Rather, that party must substantiate the denial of the contract with enough evidence to make the denial colorable.”); Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir.1987) (“A party resisting arbitration on the ground that no agreement to arbitrate exists must submit sufficient evidentiary facts in support of this claim.... ”).

III.

The Catos further allege that the claims asserted in this case are outside the scope of the arbitration provision. Specifically, the provision states that the parties agree “to arbitrate any and all disputes arising under this agreement .... ” The Catos contend that this language is narrow and indicates that the agreement to arbitrate covers a limited range of disputes that arise under the terms of the purchase agreement itself. The claims for damages in their complaint, they maintain, do not arise under the terms of the purchase agreement.

In interpreting an arbitration provision, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitra-bility.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 KEd.2d 765 (1983) (emphasis added; footnote omitted). “Thus, a motion to compel arbitration should not bé denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (I960).” Ex parte Colquitt, 808 So.2d 1018, 1024 (AIa.2001) (emphasis added).

As this Court explained in Koullas v. Ramsey, 683 So.2d 415, 416 (Ala.1996), the phrase “arising under” in an arbitration agreement contemplates a narrow scope of operation. In Koullas, the plaintiff, Ramsey, entered into a contract in 1987 to sell and transfer to Koullas 60% of her stock in her business, Apparel Creations of America, Inc. The contract included an arbitration clause providing that disputes between the parties “‘arising under this Agreement,’ ” 638 So.2d at 417, would be settled by arbitration. Several years after the transaction, Ramsey sued Koullas, alleging that as a corporate director of Apparel Creations, Koullas converted profits of the corporation for his personal gain, oppressed Ramsey’s right to receive dividends, usurped Apparel Creations’ corporate opportunities by using profits to establish and develop a separate corporation in which he was the sole shareholder, and breached his fiduciary duty as a corporate director. Koullas, 683 So.2d at 416.

Koullas moved to compel arbitration of Ramsey’s claims pursuant to the arbitration clause contained in the 1987 contract. Ramsey argued that her claims did not “arise under” the terms of that contract and were therefore not subject to the arbitration provision. The trial court denied the motion . to compel arbitration, and Koullas appealed. .

This Court noted: •

“Where, as'here, an arbitration clause refers to disputes or controversies ‘arising under’ an agreement, the clause will apply only to those claims arising under the terms of the agreement; and it will not extend to matters or claims independent of, or merely collateral to, the agreement. We agree that, in order for a dispute to be characterized as arising out of or relating to the subject matter of the contract, and thus subject to arbitration, it. must at the very least raise some issue that cannot be resolved without a reference to or construction .of the contract itself.”

Koullas, 683 So.2d at 417-18 (citation omitted). We went on to hold that Ramsey’s claims against Koullas as a corporate director did not require reference to or a construction of the 1987 contract: .

“Nothing in the contract addresses the manner and method by which Apparel Creations was to be managed after the sale of the stock. It does not name Koullas as a corporate director, and it does not even mention how the shareholders would be involved within the corporation. It does not address the amount of salaries, commissions, or dividends that would be paid to corporate officials or stockholders. It is silent as to any duties or responsibilities that the parties would owe to' the corporation after the sale and transfer of the stock. Simply put, every term of the contract relates exclusively to some aspect of the one-time sale of corporate stock, which was completed in 1987, before Koullas even became a corporate director of Apparel Creations.
“If Ramsey was alleging any wrongdoing in the making of the sales contract or in its performance, or was alleging violation of its provisions, then Ramsey’s claims might reasonably be said to ‘arise under’ the contract and therefore be subject to the limited arbitration clause contained therein. As it is, Ramsey’s allegations against Koullas arise solely from his actions as a corporate director, not as a buyer of stock under the sales contract.”

Koullas, 683 So.2d at 418.

As in Koullas, we must examine the individual claims in the complaint to determine whether the dispute “arises under” the purchase agreement. The defendants argue on appeal that the Catos are attempting to “circumvent the contract and its arbitration provision by couching their complaint in terms of tort and implied contract” and are “careful to avoid any mention of the [Purchase] Agreement in their complaint.” (Appellants’ brief at 10, 6.) The Catos claim that they have simply elected to “forgo” claims under the contract to “avoid arbitration.” (Catos’ brief at 17.)

In determining the nature of a cause of action, this Court looks to allegations in the body of the complaint, not the caption or label the party applies. Rutley v. Country Skillet Poultry Co., 549 So.2d 82, 84 (Ala.1989) (“[A] caption to a pleading is only the label by which to identify it and is not the determining factor of what the pleading actually is or what it states. A court must look to the allegations in the body of the complaint in order to determine the nature of a plaintiffs cause of action.”). The substance of the plaintiffs allegations control, not the effort given by the plaintiff to style the claims throughout litigation. Bailey v. Faulkner, 940 So.2d 247, 253 (Ala.2006) (“Faulkner places great reliance on the fact that he has been careful to style his claims throughout this litigation as negligence and wantonness claims, rather than as an alienation-of-affections claim. However, ‘[t]his Court has always looked to substance over form.’ Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 971 (Ala.1994).” (footnote omitted)).

Count I of the Catos’ complaint, styled “promissory fraud,” alleges that in June 2003 the Catos discussed with Elizabeth Homes the “possibility” of constructing a house on their property. It alleges that Elizabeth Homes orally represented that it would build the house “to the same standards as” a model home, that these representations were false, and that Elizabeth Homes never intended to construct the house to the same standards as the model home. Although not stated directly, it appears that the complaint alleges that the house, as built, did not conform to the standards of the model home. As a result, the Catos allege that they suffered “annoyance, inconvenience, mental anguish,” and they allege that the value of the house is less than it should be. Additionally, the Catos allege in Count II of the complaint that these representations created an “oral warranty” that Elizabeth Homes breached.

The purchase agreement states that Elizabeth Homes would build a “Standard Seville[] model in substantial conformity with plans and specifications” and recites that the Catos, as purchasers, understand that Elizabeth Homes would perform the scope of work shown in certain plans and specifications. The purchase agreement further contains a merger or integration clause, which states that the purchase agreement constitutes “the entire contract” and that there are no other oral or written promises or agreements except those set forth in certain documents named in the purchase agreement. Elizabeth Homes argues that the purchase agreement specifies how the house is to be built, and any claim that the house did not conform to a party’s expectation must therefore arise under that agreement.

The Catos first argue that Elizabeth Homes has not proven that their claim arises under the purchase agreement. Instead, they argue: “The complaint specifically alleges an oral representation. [Elizabeth Homes] offered no evidence to establish the claim is based on a written contract.” (Catos’ brief at 22.) The Ca-tos, however, misunderstand the respective burdens. As discussed above, it is the Catos’ burden to demonstrate that the arbitration agreement in the purchase agreement does not apply to this dispute. However, the Catos presented no evidence in opposition to the motion to compel arbitration indicating that Elizabeth Homes had entered into an agreement, whether oral or written, outside the purchase agreement. Additionally, there is no evidence indicating that Elizabeth Homes or its agents made any oral representations to the Catos that differ from the specifications stated in the purchase agreement. Therefore, the Catos failed to meet their burden of showing that the arbitration provision in the purchase agreement does not apply to their claim that the house did not conform to their expectations.

The purchase agreement, as noted above, states that the house will conform to certain specifications and plans. Any claim by the Catos that the house deviated from the specifications or design they agreed to- with Elizabeth Homes thus “arises under” the purchase agreement.

The Catos, citing National Auction Group, Inc. v. Hammett, 854 So.2d 65 (Ala.2003), argue that they are the “masters” of the complaint, that the complaint alleges “an oral representation,” and that this Court cannot assume that the Catos must be suing under the purchase agreement. Hammett, however, is inapposite. In that case, a defendant attempted to compel arbitration of the plaintiffs claims pursuant to an arbitration provision found in a contract between two defendants. This Court refused the attempt to compel arbitration, noting that the complaint expressly alleged that the defendants had breached a different contract, and it did not allege a breach of the contract containing the arbitration provision. Hammett, 854 So.2d at 70.

In Hammett, the plaintiff was not a party to the contract that contained an arbitration provision; instead, the plaintiff was suing based on the alleged breach of a different contract. In the instant case, the Catos presented no evidence indicating that they were parties to a contract or agreement with Elizabeth Homes other than the purchase agreement. Indeed, the Catos do not even deny that they entered into the purchase agreement. Thus, Hammett is inapplicable.

In Counts III, IV, V, and VI of the complaint, the Catos allege that Elizabeth Homes was negligent and wanton in constructing the house and setting the elevation of the house. Specifically, the complaint alleges that Elizabeth Homes “undertook to construct a home” and “locate or set the elevation” but negligently and wantonly “performed th[ese] undertaking[s].” The Catos allege that Elizabeth Homes’ duty to exercise care in building the house and setting the elevation arises by operation of law and is independent of any contractual duty Elizabeth Homes might have had. The “arise under” language of the arbitration provision, the Ca-tos conclude, does not extend to disputes that are independent of or collateral to the purchase agreement.

Even assuming that the Catos are correct in arguing that Elizabeth Homes’ duty to not act negligently or wantonly in constructing and setting the elevation of the house is a duty imposed by law and not by the purchase agreement, we are hard-pressed to nevertheless accept that the claims do not “arise under” the purchase agreement. As noted above, Elizabeth Homes undertook to construct a house for the Catos pursuant to the purchase agreement. The Catos claim that Elizabeth Homes breached certain standards of care in building that house. While the standard of care to which Elizabeth Homes was required to adhere may have arisen by operation of law or outside the purchase agreement, Elizabeth Homes’ duty to actually build the house and set the elevation clearly arises under the purchase agreement, which provides the specifications and standards for constructing the house. In any event, it is “ ‘well established that a party may not avoid broad language in an arbitration clause by attempting to cast its complaint in tort rather than contract.’ ” Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)). See also ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140 (Ala.2003) (holding that a finance company’s claims against an underwriter must be arbitrated pursuant to a provision requiring arbitration of claims “arising out” of a contract, even though the finance company stated its claims in tort rather than in contract and the finance company was not a signatory to the contract). It appears that the Catos’ claims are essentially claims of a breach of the purchase agreement styled as tort claims. We thus hold that the Catos failed to demonstrate that these claims do not arise under the terms of the purchase agreement.

Counts VII and VIII of the complaint allege that after the house was constructed, an agent of Elizabeth Homes came to check certain “electrical issues.” The Catos claim that, while performing the work, the agent negligently and wantonly damaged part of the vinyl flooring in the house when the agent moved their tanning bed. The Catos argue that these claims are not arbitrable because, they say, the defendants did not prove that the claims were related to the purchase agreement, there was no evidence to establish that Elizabeth Homes’ agent was performing a service under a warranty, and even if the work is considered work under a warranty or the purchase agreement, they could still allege a tort claim separately from the contract.

The defendants argue that the damage to the floor occurred either during the course of the construction or during the course of repairs made pursuant to a warranty provision found in the purchase agreement. Thus, they maintain, the claims asserted in Counts VII and VIII arise under the purchase agreement.

Again, it was the Catos’ burden to show that the arbitration provision does not apply to these claims. There is no evidence indicating that Elizabeth Homes’ agent, in checking “electrical issues,” was performing work outside the purchase agreement or pursuant to some other contract or agreement. For all that appears from the record, this work was performed pursuant to, and under the terms of, the purchase agreement. We thus conclude that the Catos have not proven that these claims fall outside the scope of the arbitration provision.

In Count IX, the Catos claim that the defendants breached an implied contract to construct the house in a “good and workmanlike manner.” The Catos maintain that this claim is based on an implied, not an express, contract, and that the defendants presented no evidence to show that the Catos’ claim was based on the purchase agreement. In Counts X and XI the Catos appear to allege that the defendants breached a contract and committed promissory fraud in failing to complete repairs pursuant to a “punch list.” Specifically, they claim that as they were preparing to move into the house, they presented Elizabeth Homes with a list of problems, defects, or incomplete work in the house. They state: “[I]n order to induce the plaintiffs to pay the defendants the balance due for the home, the defendants promised and contracted to complete the items on the punch list.”

As to all three counts, the Catos have again failed to present any evidence showing that the arbitration provision in the purchase agreement does not apply. There is no evidence indicating that the parties entered into an implied contract outside the purchase agreement or that a separate contract was created based on the “punch list.” Furthermore, these claims all appear to revolve around alleged deficiencies in the construction of the house. Because the duty to construct the house, and the specifications describing that duty, were all imposed by the purchase agreement, we cannot conclude with “positive assurance” that the Catos’ claims do not fall under the terms of the purchase agreement or within the scope of its arbitration provision.

Conclusion

We hold that the defendants have met their burden in supporting their motion to compel arbitration, and the Catos failed to demonstrate that the arbitration provision in the purchase agreement does not apply in this case. Therefore, the trial court erred in denying the motion to compel. The trial court’s order is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Flanagan’s affidavit in support of the motion to compel arbitration detailed that the materials used to construct the house were specially ordered for Elizabeth Homes by Elizabeth Homes’ supplier from numerous out-of-state sources. Evidence that a builder obtained materials and components for a house from out-of-state suppliers is sufficient to establish that a transaction for the construction and sale of a house sufficiently involved interstate commerce for purposes of the FAA. Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315-17 (Ala.2003).

      . This Court applies, by analogy, the practice under Rule 56, Ala. R. Civ. P., dealing with summary-judgment motions, to motions to compel arbitration. Ex parte Greenstreet, Inc., 806 So.2d 1203, 1207 (Ala.2001).

      . It appears that “Standard Seville” is the name of one of the styles of house that Elizabeth Homes offers.

      . The provision cited by the defendants actually states that any liability on Elizabeth Homes' part for a breach of the contract will be limited to the actual cost of repairing or correcting the breach.


author: SEE, Justice.

text:
    Juanita LYNCH, individually and through Buddy Lynch, as her attorney-in-fact v. Rebecca Lynch HAMRICK.
    1051820.
    Supreme Court of Alabama.
    April 13, 2007.

      J. David Dodd of Scruggs, Dodd & Dodd, Attorneys, P.A., Fort Payne, for appellant Juanita Lynch through Buddy Lynch by power of attorney.
    Jill Simpson, Rainsville, for appellant Juanita Lynch.
    Roger Killian .of Killian & Killian, P.C., Fort Payne, for appellee.
   SEE, Justice.

Juanita Lynch (“Juanita”), individually and through her son Buddy Lynch (“Buddy”), as ' her attorney-in-fact (collectively “the Lynches”), appeal the trial court’s ruling allowing an attorney who had previously represented Juanita to testify in an action seeking to set aside a deed regarding allegedly confidential communications. We affirm.

Factual and Procedural Background

On August 30, 2004, Juanita executed a deed conveying a 40-acre tract of land to her daughter, Rebecca Lynch Hamrick, the defendant below. According to Ham-rick’s testimony, Juanita asked Hamrick to take her to an attorney in Huntsville so she could execute a new will and convey the land to Hamrick. Hamrick chose Julie Wills from a listing of attorneys in the telephone book because the advertisement said that Wills specialized in elder law.

Wills met with Juanita and Hamrick together in her office. Wills, who testified at trial over the Lynches’ assertion of the attorney-client privilege, could not remember whether she had spoken to Juanita alone at any point during their meeting. Hamrick, however, testified that Wills asked her to leave the room during part of the consultation. On the stand, Wills explained that she was cautious in approaching the representation because a potential beneficiary had brought Juanita in to have a will drafted and to convey real property. Wills testified that she believed that Juanita was competent to execute the will and the deed, and she noted that Juanita’s testamentary scheme, including the deed, divided her estate evenly between Ham-rick and her brother, Buddy. Further, Hamrick gave Wills a document entitled “Chronology of Events,” drafted by Ham-rick, that showed that the rest of the real property that Juanita had owned had previously been conveyed to Buddy. Wills later telephoned Juanita at her home, “so [she] could talk to her when her daughter was nowhere around, because [Wills] wanted to verify her desires and what she wanted to do ... and that she wasn’t being influenced by her daughter or anyone else.” Satisfied that the disposition of the estate and the real property was in accord with Juanita’s wishes, Wills prepared the instruments and scheduled a second appointment.

At the second meeting, Wills spoke with Juanita alone, where “[she] confirmed again that she wanted to deed the property to her daughter. [Juanita said that she had] given other property to her son, and this is what she want[ed].” Juanita executed and Wills notarized the warranty deed Wills had prepared, and Hamrick’s husband recorded it the next day.

A few days later, Buddy learned that Juanita had conveyed the 40-acre parcel of property to Hamrick. Buddy testified that, when he asked his mother about giving the land to Hamrick, “[s]he told [him] that she didn’t know that she had done anything, that she didn’t realize [she had done] that.” Buddy, as his mother’s attorney-in-fact by virtue of a power of attorney previously executed by his mother, sued to set aside the deed, alleging that Hamrick “deceived and tricked” his mother into executing the deed. Juanita intervened in the action in her own right. Through her own attorney, Juanita requested that the trial court set aside the deed pursuant to § 8-9-12, Ala.Code 1975, alleging that she was induced to execute the deed based upon Hamrick’s representations and promises that she would care for Juanita during her lifetime. Juanita explained that Ham-rick could not afford to care for her and that she wanted the deed set aside so that she could use the real property to support herself.

Hamrick gave notice that she intended to depose Wills, and the Lynches and Wills moved to quash the deposition on the basis of the attorney-client privilege. The trial court ruled that the events surrounding the preparation and execution of the deed were not privileged. Although Wills’s deposition was never taken, she testified at trial, over the Lynches’ objection, to the conversations she had had with Juanita and Hamrick in her office and with Juanita by telephone. On direct examination by Hamrick, Wills’s testimony was limited to her perceptions regarding Juanita’s capacity to convey the real property and whether the conveyance was voluntary.

The Lynches’ attorneys then cross-examined Wills. The Lynches had Wills read from her notes regarding the two meetings and her telephone call to Juanita, and they questioned Wills regarding Juanita’s capacity to convey the property and to execute the will. They also asked Wills to testify about the types of questions Wills had asked Juanita and the advice Wills had given her. At the Lynches’ request, Wills testified about communications she had had in private with Juanita. When the Lynches asked to see the “Chronology of Events” Hamrick had prepared, Wills’s counsel objected, and the Lynches’ attorney stated: “We waive her privilege at this point.” Later, the Lynches asked Wills about a communication she had had with Juanita after the attorney then representing Juanita contacted her requesting copies of the instruments Juanita had signed. Again, Wills asserted the attorney-client privilege, and the Lynches’ attorney said: ‘We’re still waiving.”

The trial court declined to set aside the deed, concluding that “the plaintiffs have failed to show that part of the consideration for the conveyance was a promise of support.” It also denied the Lynches’ postjudgment motions. The Lynches appealed, arguing that the trial court erred in allowing Wills to testify.

Standard of Review

“ ‘Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presented....’” Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1103 (Ala.2002) (quoting Ex parte DCH Reg’l Med. Ctr., 683 So.2d 409, 412 (Ala.1996)). The burden is on the party asserting the attorney-client privilege to establish the existence of an attorney-client relationship as well as other facts demonstrating the claim of privileged information. Ex parte DCH Reg’l Med. Ctr., 683 So.2d at 412. We review a trial court’s ruling on whether a privilege exists to determine whether the trial court, in so ruling, exceeded its discretion. Exxon, 859 So.2d at 1103.

Analysis

Hamrick argues that any communications Juanita had with Wills in Ham-rick’s presence were not privileged and that Juanita waived the privilege as it pertained to communications between Juanita and Wills when Hamrick was not present. We agree.

Rule 502(b), Ala. R. Evid., provides, in pertinent part:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client’s attorney or a representative of the attorney....”

The attorney-client privilege belongs to the client, but it may be asserted by the client’s attorney on the client’s behalf. Rule 502(c), Ala. R. Evid. Further, Rule 1.6, Ala. R. Prof. Cond., requires the attorney to assert the privilege on the client’s behalf, except (1) when the client gives his or her consent to the disclosure, (2) to prevent the client from committing a criminal act the attorney believes will likely result in imminent death or substantial bodily harm, or (3) to establish a claim or defense on behalf of the attorney in certain circumstances. Rule 510, Ala. R. Evid., provides that the client may waive the privilege: “A person upon whom these rules confer a privilege against disclosure waives the privilege if the person ... voluntarily discloses or consents to disclosure of any significant part of the privileged matter.” See also Ex parte Great American Surplus Lines Ins. Co., 540 So.2d 1357, 1359 (Ala.1989) (recognizing that the attorney-client privilege may be waived by the client directly or constructively and that waiver may be accomplished by disclosing part of the communication).

The Lynches first argue that, because “[Hamrick] was interested in the subject matter of Ms. Wills’[s] representation, i.e., the deed,” the communications remained privileged even when Hamrick was present. ’ The Lynches’ brief at 12. The Lynches cite the following statement from International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Hatas, 287 Ala. 344, 367, 252 So.2d 7, 28 (1971):

“ ‘[WJhere two or more persons interested in the same subject matter are present at a conference with an attorney who represents only one of those present, it has been held that matters discussed at such conference are confidential as to strangers to the conference and accordingly they constitute privileged communications as to such strangers.’ ”

(Quoting 141 A.L.R. at 562.) In Hatas, the plaintiff in a wrongful-death action attempted to question Partin, a named defendant, about a conversation Partin had had with an attorney named Beddow in the presence of a third party, Miss Kelly, who accompanied Partin. The Teamsters Union, another named defendant, argued that Beddow was not Partin’s attorney and, therefore, that any statements Partin made to Beddow were not protected by the attorney-client privilege. The Court held, however, that “Partin and Miss Kelly were both interested in a legal sense in the subject matter discussed at the conference with Mr. Beddow, Jr.” Hatas, 287 Ala. at 367, 252 So.2d at 28. It is not clear from, the opinion what interest Partin and Kelly shared.

In Crenshaw v. Crenshaw, 646 So.2d 661 (Ala.1994), however, this Court discussed the application of the exception stated in Hatas to facts similar to this case. F.W. Crenshaw -was in the hospital when his attorney, Elisha C. Poole, and Poole’s secretary, Barbara Ellison, visited him so he could execute three real-estate deeds. F.W.’s son, Fred Crenshaw, and daughter, Betty Crenshaw Henricks, were also present. Fred alleged that F.W. said at this meeting that he was giving his house and all the property inside it to Fred. F.W. deeded the house to Fred, but F.W.’s will divided all of his-personal property equally among his three children. When the executor attempted to divide the personal property that was inside the house, Fred claimed it all as part of the gift from his father. The trial court did not allow the attorney or his secretary to testify, citing attorney-client privilege. After first noting that there was no indication that Poole represented either Fred or Betty, this Court held:

“Betty and Fred did not have a sufficient common legal interest in the subject matter discussed in the decedent’s hospital room to make the attorney-client privilege applicable. In fact, the interests of Betty and Fred. could be considered adverse to each other, or to those of the decedent.”

Crenshaw, 646 So.2d at 663. The presence of F.W.’s two children served to waive theattorney-client 'privilege because “.‘the presence of such third party defeats the confidential nature of the conference and thereby the privilege.’” Crenshaw, 646 So.2d at 662 (quoting Hatas, 287 Ala. at 366, 252 So.2d at 27).

Similarly, in this case, Hamrick did not have “a sufficient common legal interest in the subject matter” of the representation. Crenshaw, 646 So.2d at 663. The Lynches claimed that Juanita gave Hamrick the property in exchange for a promise to support her, a promise Hamrick denies having made. The Lynches also argued to the trial court that one of the reasons they wanted the deed set aside was that transferring the property had consequences on Juanita’s eligibility for Medicaid benefits. The Lynches pointed out that the value of the property could be considered in calculating Juanita’s assets if she applied for benefits within a certain time after such a transfer. These allegations demonstrate that Juanita’s and Hamrick’s interests were not sufficiently aligned to preserve the attorney-client privilege because Ham-rick’s interests in having her mother transfer the property were adverse to her mother’s interests in retaining it.

Next, the Lynches argue that Hamrick’s “presence was necessary at the meeting because [Hamrick] set the meeting and drove plaintiff Juanita Lynch there.” The Lynches’ brief at 12. However, there is no evidence indicating that Hamrick’s presence in the meeting was necessary for Wills to prepare Juanita’s will and the deed. Wills testified that she addressed her questions to Juanita and that “[she] got [Juanita] to explain things to [her] and talk to [her].” Wills stated that “[w]hen [she] deals with older people [she] gets them to give [her] the information.” Wills explained that Juanita appeared competent and appeared to know what she wanted to have done in regard to the disposition of her property. Further, after the will and the deed had been drafted, Juanita drove herself to Huntsville to execute those instruments. The burden is on the party asserting the attorney-client privilege to show that the presence of a third party did not destroy the privilege. Ex parte DCH Reg’l Med. Ctr., 683 So.2d at 412. The record demonstrates that the evidence regarding Juanita’s mental and physical capacities was in conflict. Therefore, the trial court was within its discretion in concluding that Hamrick was an unnecessary third party at the meeting between Juanita and Wills.

Further, we may affirm the judgment of the trial court if it is right for any reason, and there is an alternative ground on which the trial court could have allowed Wills to testify. Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So,2d 84, 104 (Ala.2004) (“[A]n appellate court [may] affirm a summary judgment on the basis of a law or legal principle not invoked by the moving party or the trial court....”). Wills’s testimony on direct examination was limited to the facts that Juanita signed the deed voluntarily, that there was no trickery or deceit used to obtain her signature, and that Juanita appeared coherent and able to understand the contents and the effect of the instrument. Hamrick correctly points out that, ' under Rule 502(d)(4), Ala. R. Evid., there is no privilege “[a]s to a communication relevant to an issue concerning the intention or competence of a client executing an attested document to which the attorney is an attesting witness, or concerning the execution or attestation of such a document.” Wills was the attesting witness to the deed, and she could thus “divulge information received in the attorney’s capacity as an attesting witness.” Advisory Committee’s Note to Rule 502, Ala. R. Evid. Wills’s testimony on direct examination was largely limited to information regarding Juanita’s intentions and information that Wills had gained in her capacity as the attesting witness, and it did not contain privileged information.

It was only in response to the cross-examination by the Lynches that Wills produced information regarding the representation that could be regarded as learned in her capacity as an attorney. Further, although the Lynches now argue that the trial court erred in allowing Wills to testify regarding private conversations between Wills and Juanita, it was the Lynches, not Hamrick, who elicited such testimony regarding these private conversations. The Lynches asked Wills to read the notes she took at each of her meetings with Juanita. The attorney representing Juanita in this action asked Wills: “Since [the first consultation] was a thirty-minute meeting, why don’t you just shortly, briefly, go over your notes for us. Why don’t you just read from them.” The Lynches also asked Wills to read her notes from the private telephone call Wills made to Juanita after the first meeting, as well as her notes made after the second meeting. According to the Lynches, each of these consultations contained privileged communications.

Further, the Lynches asked Wills about her conclusions regarding Juanita’s competency and how she came to those conclusions. The Lynches asked Wills: “[W]hat kind of questions did you ask Mrs. Lynch? ... Did you ever ask her about her memory?” The Lynches then questioned Wills about how she concluded that Juanita was of “sound mind.” They also asked Wills: “Ms. Wills, was there anything to suggest that Mrs. Lynch was either under duress or that she was somehow coerced into making this deed or meeting with you?” The Lynches thus elicited the same information regarding Juanita’s competency with greater detail than had Hamrick in her direct examination of Wills.

By inquiring into the substance of what were otherwise confidential and privileged communications between Juanita and Wills, Juanita waived the attorney-client privilege. See Rule 510, Ala. R. Evid. (“A person upon whom these rules confer a privilege against disclosure waives the privilege if the person ... voluntarily discloses or consents to disclosure of any significant part of the privileged matter.”); Ex parte State Farm Fire & Cas. Co., 794 So.2d 368, 374 (Ala.2001) (“ ‘The principle that the attorney-client privilege is implicitly waived when a party puts an attorney-client communication at issue in a case is well accepted in American jurisprudence.’ ” (quoting Mortgage Guar. & Title Co. v. Cunha, 745 A.2d 156, 159 (R.I.2000))); Ex parte Great American Surplus Lines Ins. Co., 540 So.2d at 1359 (holding that the partial disclosure of a privileged communication waives the attorney-client privilege); Free v. State, 455 So.2d 137, 142 (Ala.Crim.App.1984), abrogated on other grounds by McKinney v. State, 511 So.2d 220 (Ala.1987) (“Since the appellant’s counsel initiated the inquiry into the appellant’s sanity, appellant waived any privilege of confidentiality he may otherwise have had.”).

Finally, the Lynches, in separate instances, expressly waived the protections of the attorney-client privilege. When she was asked to present the “Chronology of Events,” Wills’s counsel objected, and the Lynches stated: ‘We waive her privilege at this point.” Later, the Lynches asked Wills about a communication Wills had had with Juanita after she was contacted by the attorney then representing Juanita. Again, Wills asserted the attorney-client privilege, and the Lynches said: We’re still waiving.”

For these reasons, it does not appear that the trial court exceeded its discretion in allowing Wills to testify regarding her representation of Juanita.

Conclusion

The Lynches have failed to establish that the protections of the attorney-client privilege apply in this case. The trial court acted within its discretion when it allowed Wills to testify regarding Juanita’s intentions and her capacity to execute the warranty deed in Hamrick’s favor. Further, by their cross-examination of Wills regarding the confidential communications she had had with Juanita, the Lynches waived any error the trial court may have otherwise committed in permitting Wills to testify.

AFFIRMED.

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

      . Section 8-9-12, Ala.Code 1975, provides:
      “Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grant- or, except as to bona fide purchasers for value, lienees, and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.”

        . Counsel filed a notice of appearance to represent Wills in regard to the invocation of the attorney-client privilege.