author: SEE, Justice. COBB, Chief Justice

text:
    TITLE MAX OF BIRMINGHAM, INC. v. Jeffrey T. EDWARDS.
    1051140.
    Supreme Court of Alabama.
    May 18, 2007.

      Jeffrey L. Ingram and Cassandra J. Harris of Galese & Ingram, P.C., Birmingham, for appellant.
    Edwin M. Van Dali, Jr., and Julius Raymond Lowery, Pell City, for appellee.
   SEE, Justice.

Title Max of Birmingham, Inc., appeals the denial of its motion to compel Jeffrey T. Edwards to arbitrate his claims against Title Max alleging conversion and negligence in connection with the repossession of a 1998 model year Ford F-150 pickup truck. Because the trial court erred in failing to compel Edwards to arbitrate, we reverse and remand.

Facts and Procedural Background

Edwards entered into a pawn transaction with Title Max, pledging a security interest in his 2000 model year Ford F-150 extended cab truck in exchange for a loan. Edwards had a 30-day grace period following the maturity date of the loan in which to repay the loan and to pay the other charges. The agreement evidencing the transaction (“the pawn agreement”) gave Title Max the right to repossess the truck if the loan was not repaid and the other charges paid before the expiration of the grace period. Edwards defaulted on the loan. Pursuant to its contractual right, Title Max sent its agent, Jack Burke, to repossess the truck.

According to Edwards, Burke arrived at Edwards’s house and informed him that he was repossessing the truck. When the key Title Max had given Burke to use in repossessing the truck did not fit the door or the ignition of the truck in Edwards’s driveway, Burke had the truck towed away; the truck he had towed was a 1998 model year Ford F-150. Later, when Burke realized that he had repossessed the wrong truck, he left the 1998 truck at a gasoline station and returned to Edwards’s house to inform Edwards of the mistake and to tell him where he had left his truck. Eventually, the police instructed Burke to return the truck to Edwards, but, according to Edwards, by that time the truck had been damaged and would no longer start.

Edwards sued Title Max and Burke in the Talladega Circuit Court, alleging conversion of the 1998 truck and negligent repossession. Title Max moved to stay the action and to compel binding arbitration pursuant to an arbitration provision that Edwards had signed as part of the pawn agreement. The arbitration provision reads, in pertinent part, as follows:

“For the purposes of this Waiver of Jury Trial and Arbitration Provision (hereinafter ‘Arbitration Provision’), the words ‘dispute’ and ‘disputes’ are given the broadest possible meaning and include, without limitation (a) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, [and] the validity and scope of this Arbitration Provision ...; (b) all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to this Pawn Ticket ...; (d) all common law claims, based upon contract tort, fraud, or other intentional torts; ... (g) all claims asserted by you individually against us ... including claims for money damages and/or equitable or injunctive relief; ....
“... This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the [Federal Arbitration Act].”

The trial court denied Title Max’s motion to compel Edwards to submit the dispute to arbitration. Title Max appeals.

Standard of Review

“A direct appeal is the proper procedure by which to seek review of a trial court’s order denying a motion to compel arbitration.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000); Rule 4(d), Ala. R.App. P. We review the trial court’s grant or denial of a motion to compel arbitration de novo. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). The moving party “ ‘ “must produce some evidence which tends to establish its claim.” ’ ” Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala. 1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party meets this initial burden, the nonmovant then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris, 879 So.2d at 1132.

Analysis

The issue presented by this appeal is whether a court or the arbitrators should determine the scope of the arbitration provision in this case and whether it includes Edwards’s claims against Title Max. Title Max argues that the parties agreed to arbitrate the arbitrability of any dispute between them and that the arbitration provision in the pawn agreement, quoted in part above, is broad enough to require Edwards to arbitrate his claims of conversion and negligent repossession. Edwards argues that the property that forms the basis of his claims against Title Max is the 1998 model year Ford F-150 truck and that there is no contract concerning that property; he asserts, therefore, that “[t]here is no privity between the parties concerning the transaction which gave rise to the lawsuit.” Edwards’s brief at 5.

Section 2 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides, in pertinent part:

“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, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Section 2 has the effect of preempting conflicting Alabama law, in particular § 8-1-41(3), Ala.Code 1975, which makes pre-dispute agreements to arbitrate unenforceable. Garikes, Wilson, & Atkinson, Inc. v. Episcopal Found, of Jefferson County, Inc., 614 So.2d 447, 448 (Ala.1993). It thereby makes enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce. McCollough, 776 So.2d at 745.

Title Max had the initial burden of producing “some evidence” that a contract calling for arbitration exists and that the underlying transaction involves interstate commerce. Polaris, 879 So.2d at 1132. Edwards does not question that the pawn transaction involved interstate commerce; therefore, we turn to whether a contract requiring the arbitration of this dispute exists. The arbitration provision, quoted above, appears in the record. Edwards does not dispute that he signed an arbitration provision as part of the pawn transaction that gave Title Max a security interest in the 2000 model year Ford F-150. The arbitration provision on its face applies to “all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision” as well as to “all claims asserted by [Edwards] individually against [Title Max].” Title Max, therefore, has put forward sufficient evidence indicating that it and Edwards entered into a contract that contains an arbitration agreement.

Because Title Max met its burden to prove the existence of a contract calling for arbitration, the burden then shifted to Edwards “to present evidence showing that the arbitration provision in the contract does not apply to the dispute in question.” Medical Seros., LLC v. GMW & Co., 969 So.2d 158, 161 (Ala.2006). Edwards argues that the arbitration provision does not apply to “other property” in his possession, that is, to property other than the 2000 model year Ford F-150 truck, the title to which he pawned when he entered the pawn agreement. Therefore, he argues, there is no contract requiring arbitration regarding any claims he might have against Title Max and Burke relating to the 1998 model year Ford F-150 truck.

“[A] party who contests the existence of a contract containing an arbitration provision cannot be compelled to arbitrate that threshold issue because an arbitrator derives his authority solely from the parties’ agreement. Only a court can resolve the question whether a contract exists.” Edward D. Jones & Co. v. Ventura, 907 So.2d 1035, 1040 (Ala. 2005). However, Edwards does not contest that he signed a contract with Title Max containing an arbitration provision; instead, he essentially argues that his claims do not fall within the scope of the arbitration provision he signed. Arbitration is a matter of contract, and this Court applies the ordinary state-law principles governing contracts in construing an agreement to arbitrate. Polaris Sales, 879 So.2d at 1133. ‘“When a court construes a contract, “the clear and plain meaning of the terms of the contract are to be given effect, and the parties are presumed to have intended what the terms clearly state.”H & S Homes, L.L.C. v. Shaner, 940 So.2d 981, 988 (Ala. 2006) (quoting Polaris Sales, 879 So.2d at 1133, quoting in turn Strickland v. Ra-haim, 549 So.2d 58, 60 (Ala.1989)). “ ‘[I]n applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.’ ” McCollough, 776 So.2d at 745 (quoting Volt Info. Sciences, Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).

In Jim Burke Automotive, Inc. v. McGrue, 826 So.2d 122 (Ala.2002), this Court confronted the question whether the parties intended to arbitrate the issue of arbitrability. The arbitration agreement there provided that the parties would arbitrate “all disputes ... including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope .... ” 826 So.2d at 132. We held that “[t]he language of the arbitration agreement is clear and unmistakable evidence indicating that McGrue and Jim Burke intended to arbitrate the question of arbitrability (i.e., the scope, the interpretation, and the application of the agreement) of any disputes that arose from their relationship.” Jim Burke Automotive, 826 So.2d at 132. For this reason, we held that the trial court erred when it decided the question of the arbi-trability of McGrue’s claims against Jim Burke instead of submitting the question to the arbitrator.

We have held that “[a] trial court should not order arbitration of the issue of arbitrability except upon ‘ “clea[r] and unmistakable]” evidence’ that the parties agreed to arbitrate that issue.” Jim Burke Automotive, 826 So.2d at 132 (quoting Commercial Credit Corp. v. Leggett, 744 So.2d 890, 892 (Ala.1999), quoting in turn First Options of Chicago, Inc. v. Kap-lan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)) (alterations in original). Here, Edwards agreed to arbitrate “all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, [and] the validity and scope of this Arbitration Provision ....” The arbitration provision thus demonstrates that the parties intended to arbitrate whether the agreement applies to “any disputes that arose from their relationship.” Jim Burke Automotive, 826 So.2d at 127. We reject the argument that the trial court should hold that the arbitration provision does not apply because there is no contract relating to the 1998 model year Ford F-150. It was improper for the trial court to decide the issue of arbitrability in this case because Edwards agreed to submit to arbitration any questions regarding “the validity and scope of this Arbitration Provision.”

Because we hold that the parties agreed to arbitrate the question of the scope of the arbitration provision, we do not reach Title Max’s alternative argument that the terms of the arbitration provision are broad enough to encompass Edwards’s claims of conversion and negligent repossession. See Jim Burke Auto., 826 So.2d at 132 (“Because we hold that the trial court improperly decided the question of the arbitrability of McGrue’s claims against Jim Burke, we must also hold that the issue whether those claims come within the agreement is not before us. That question is within the province of the arbitrator.”).

Conclusion

The parties agreed to arbitrate the issue of the validity and scope of the arbitration provision contained in the pawn agreement; therefore, the trial court erred in denying Title Max’s motion to stay the proceedings and to compel binding arbitration. For this reason, the order is reversed and this case remanded with directions to grant Title Max’s motion to stay proceedings and to compel binding arbitration.

REVERSED AND REMANDED WITH DIRECTIONS.

LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., concurs specially.

MURDOCK, J., concurs in the result.

COBB, Chief Justice

(concurring specially).

Current Alabama law applied to the facts of the case produces a result that is deeply troubling. It is my belief that not only did Edwards not intend to compel his future conversion claim to arbitration, but also current arbitration law provides too broad an application of agreements to arbitrate. Although I realize that well-established Alabama law confines judicial review of a contract to the four corners of the contract and rejects subjective review of the parties’ intent, the resulting overly broad application of arbitration agreements, such as in the instant case, is nonetheless unjust.

The arbitration provision here is written in an attempt to encompass any conceivable scenario that might result in civil litigation and to refer the dispute resulting from such a scenario to a panel of arbitrators for resolution. The broad language of the arbitration provision militates strongly against each citizen’s right to a jury trial as guaranteed by our state and federal constitutions. U.S. Const. Amend. VII; Ala. Const.1901, § 11. I believe that this Court’s duty is to construe strictly documents that are in plain derogation of constitutional rights. However, this Court’s decision to bind these parties to arbitration based on the language of the arbitration provision is supported by its similar holding in Jim Burke Automotive, Inc. v. McGrue, 826 So.2d 122 (Ala.2002). In Jim Burke Automotive, the Court interpreted an arbitration agreement with language similar to the language here as holding that the parties intended to arbitrate “any disputes that arose from [the parties’] relationship.” 826 So.2d at 182. Applying that caselaw to the instant case results in a holding that the parties’ agreement to arbitrate the scope of the arbitration provision requires that the conversion and negligent-repossession issues raised in this case, issues that are entirely distinct from the pawn agreement, must be submitted to binding arbitration. That result simply flies in the face of what the parties were doing in this pawn agreement. It is highly unlikely that Edwards, upon signing the instant arbitration provision, foresaw that he was engaged in an act of interstate commerce that would deprive him of his right to a jury trial if Title Max wrongfully repossessed property to which it had no contractual right. The 1998 model year Ford F-150 truck Title Max wrongfully repossessed was subject to no agreement between the parties. Nothing about that vehicle was related to the pawn agreement in this case.

Arbitration agreements like the one at issue here compel to arbitration almost any claim arising between the parties. It is difficult even to imagine any legal claim that might arise that would not be included in the arbitration provision at hand, which covers “(d) all common law claims, based upon contract tort, fraud, or other intentional torts; ... (g) all claims asserted by you individually against us ... including claims for money damages and/or equitable injunctive relief .... ” Thus, this Court’s deference to an unduly broad policy in favor of arbitration provides injustice an opportunity to prosper. If Edwards had been assaulted by the agent repossessing the wrong vehicle, it would be unfair to compel him to arbitrate his resulting legal claim. If the repossessing agent had stolen a family heirloom while on Edwards’s property, it would be unfair to compel Edwards to arbitrate his claim against the agent. However, in light of Discount Foods, Inc. v. Supervalu, 789 So.2d 842 (Ala.2001), in which this Court compelled to arbitration an intentional-tort claim unrelated to the underlying transaction, Edwards’s consent to the plain language of the arbitration provision indicates by the “clear and unmistakable evidence” standard set out in Jim Burke Automotive Edwards’s willingness to submit all claims arising between the parties to arbitration. Jim Burke Automotive, 826 So.2d at 132. Presumably, the Court would not permit the drafter of a contract simply to state that the parties to the contract would thereafter be required to arbitrate all disputes, whether related to the underlying transaction or not.

In Mehler v. Termimx International Co., 205 F.3d 44 (2d Cir.2000), the United States Court of Appeals for the Second Circuit bound the parties to arbitration after determining that the plaintiffs’ claims resulting from an accident that occurred during the termite-extermination process were encompassed by the arbitration agreement. However, in Mehler the court applied a more just standard to determine the scope of the arbitration agreement than the one this Court applies today. The Mehler court examined the issue of the scope of the arbitration agreement by determining if the claim arose out of or related to the contract; in doing so, it summarized the holding in Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 29 (2d Cir.1995), as follows: “[T]he key inquiry is what was the reasonable expectation of the parties who commit themselves to be bound by the provisions of the arbitration agreement.” Mehler, 205 F.3d at 50.

Justice See describes my suggestion above as advocating the exercise of “more pliable jurisprudence,” 973 So.2d at 1054-55 n. 1; it is, however, more just jurisprudence that I suggest. In light of the Court’s longstanding tradition of upholding just contracts, I believe that the Court should give effect to the parties’ actual intent. As I have stated, it was not reasonable for Edwards to expect to be compelled to arbitrate a claim regarding property to which Title Max had no claim. In the context of this case, I believe that the waiver of the right to a jury trial should be limited to a much narrower construction of what relates, either directly or indirectly, to this pawn transaction — a construction that would be in accord with what the parties might reasonably expect.

      . Where contract terms are unambiguous, we do not look beyond the plain language of the contract to second-guess the intentions of the parties; nor will we speculate about what may have been the subjective expectations of the parties. See Harbison v. Strickland, 900 So.2d 385, 391 (Ala.2004) (" '[I]t is elementary that it is the terms of the written contract, not the mental operations of one of the parties, that control its interpretation.' ” (quoting Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325, 276 So.2d 569, 570 (1973))); Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (" ‘[A] court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state.’ " (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998))); Lilley v. Gonzales, 417 So.2d 161, 163 (Ala.1982) ("[T]he law of contracts is premised upon an objective rather than a subjective manifestation of intent approach.”). Chief Justice Cobb, in her special writing, suggests that this Court should exercise a more pliable jurisprudence and look beyond the four corners of the arbitration agreement, calculate what consequences one of the parties likely did not foresee, and effectuate, instead of the express terms of the contract, the " 'reasonable expectation of the parties who commit themselves to be bound by the provisions of the arbitration agreement.’ ” 973 So.2d at 1058 (Cobb, C.J., concurring specially) (quoting Mehler v. Terminix Int’l Co., 205 F.3d 44, 50 (2d Cir.2000), summarizing Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 29 (2d Cir. 1995)).
      The Supreme Court of the United States tells us that "Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed 'upon the same footing as other contracts.' ” Doctor’s Assocs., Inc. v. Casarot-to, 517 U.S. 681, 687 (1996) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974)). Thus, because we cannot single out arbitration clauses for special scrutiny, any rule that we would adopt to achieve the objective of judicially altering the terms of an arbitration agreement would necessarily apply to all contracts. However, the Constitution of Alabama prohibits this Court from substituting its "belief” as to what one of the parties did or did not intend for the express terms to which both parties agreed in a contract and thereby impairing the obligation of contracts. Ala. Const.1901, Art. IV, § 95 ("There can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement ....”).
      The freedom of parties to contract is an important public policy written into the state
      constitution and adopted by the people of Alabama. It is a significant liberty interest that is expressly protected in the constitution. This Court has recognized that " 'the state constitution protects contractual obligations from impairment by the legislature or the judiciary, and the right of freedom of contract is a cherished one that courts are bound to protect.’ ” Ex parte Life Ins. Co. of Georgia, 810 So.2d 744, 751 (Ala.2001) (quoting Sutton v. Epperson, 631 So.2d 832, 835 (Ala. 1993)).
      "Even under what may seem to be the most compelling circumstances, [courts] may not 'refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties.' Kinnon v. Universal Underwriters Ins. Co., 418 So.2d [887,] 888 [(Ala.1982)]. 'It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist.’ Commercial Union Ins. Co. v. Rose’s Stores, 411 So.2d 122, 124 (Ala.1982).”

        Johnson v. Cervera, 508 So.2d 257, 259 (Ala. 1987).

      . Chief Justice Cobb’s special writing cites as a model for this Court the decision of the United States Court of Appeals for the Second Circuit in Mehler v. Terminix Int’l Co., 205 F.3d 44, 50 (2d Cir.2000), reciting from Lead-ertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 29 (2d Cir. 1995), that “the key inquiry is what was the reasonable expectation of the parties who commit themselves to be bound by the provisions of the arbitration agreement.” The Second Circuit, however, chose not to apply the earlier language found in Leadertex, citing it only in a string citation indicating contrary authority. In Mehler, where the defendant punctured a homeowner’s underground heating-oil line while performing a termite examination, the Second Circuit held that this injury, which presumably was not specifically contemplated by the homeowner, nonetheless was within the scope of the arbitration agreement because
      "the arbitration clause at issue is a classically broad one. The clause provides for arbitration of ‘any controversy or claim between [the parties] arising out of or relating to’ the Agreement. We have previously decided that this is 'precisely the kind of broad arbitration clause that justifies a presumption of arbitrability.’ ”
      205 F.3d at 49 (citations omitted). The arbitration provision that Edwards executed is similarly broad.

      . Both this Court and the federal courts of appeals have held that a court's enforcement of an arbitration agreement does not violate the protections established by the Seventh Amendment to the Constitution of the United States. See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1371 (11th Cir.2005). "Nor does the fact that the appellees waived their right to a jury trial require the court to evaluate the agreement to arbitrate under a more demanding standard. It is clear that a party may waive her right to adjudicate disputes in a judicial forum.... [T]he ‘loss of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate.’ ” Sydnor v. Conseco Fin. Seivicing Corp., 252 F.3d 302, 307 (4th Cir.2001) (quoting Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334, 339 (7th Cir.1984)); see also Burden v. Check into Cash of Kentucky, LLC, 267 F.3d 483, 492 (6th Cir.2001) (following Sydnor), and Service Corp. Int’l v. Fulmer, 883 So.2d 621, 633 n. 15 (Ala.2003) ("A party may freely choose to give up his constitutional right to a jury trial even when doing so is required to receive some good or service .... ”). Moreover, Alabama law and policy to the contrary must yield to the federal policy. Section 2 of the Federal Arbitration Act “is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." Moses H. Cone Mem’l Hosp. v. Mercury Constr. Coip., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The Supremacy Clause of the Constitution of the United States prohibits this Court from rejecting those federal policies with which it may disagree. See U.S. Const. Art. VI.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Jennifer RITTER and Daryl Ritter v. GRADY AUTOMOTIVE GROUP, INC.
    1051362.
    Supreme Court of Alabama.
    May 18, 2007.

      Thomas R. McAlpine of Whitfield & McAlpine, P.C., Mobile, for appellants.
    Clifford C. Brady and Thomas J. Rad-cliff of Brady Radcliff & Brown, LLP, Mobile, for appellee.
   SEE, Justice.

Following an accident in which the air bags in Jennifer Ritter’s automobile did not deploy, Jennifer Ritter and her husband Daryl Ritter sued Grady Automotive Group, Inc. (“Grady Automotive”), the dealership where she had purchased the vehicle; BMW of North America, LLC (“BMW”), the manufacturer of the vehicle; and fictitiously named parties. The trial court granted the motion to compel arbitration filed by “Grady Buick Company, Inc., incorrectly named Grady Automotive Group, Inc.,” as to both Mr. Ritter’s and Mrs. Ritter’s claims, based on an arbitration agreement signed by Mrs. Ritter. The Ritters appeal. We affirm.

Facts and Procedural History

Jennifer Ritter purchased a new 2003 BMW 745Li automobile from Grady Automotive. Her husband, Daryl, did not accompany her to the dealership to buy the car. To purchase the car, Mrs. Ritter executed several documents, including a “Motor Vehicle Purchase Contract” (“the purchase contract”), a retail-installment contract, a power of attorney, an arbitration agreement, and an application for a certificate of title. Mrs. Ritter alleges that the dealership represented to her that the BMW 745Li was the safest car on the road, partly because it had air bags both in the front and on the sides of the car.

While driving the 745Li several months later, Mrs. Ritter was involved in a car accident. None of the air bags in the car deployed. Moreover, the seatbelt allegedly failed to hold Mrs. Ritter in place, and she sustained injuries. Mr. Ritter was not in the car at the time of the accident. Mrs. Ritter sued Grady Automotive, BMW, and fictitiously named defendants, alleging misrepresentations, manufacturing defects, defective design, negligent and/or wanton installation of the air-bag and seatbelt systems, breach of contract, and breach of warranties. Mr. Ritter also sued the defendants, asserting a derivative loss-of-consortium claim.

Grady Buick Company, Inc. (“Grady Buick”), which maintained that it was incorrectly named on the Ritters’ complaint as “Grady Automotive Group, Inc.,” moved the trial court to compel arbitration of the claims against it based on the arbitration agreement Mrs. Ritter signed at the time she purchased the 745LL The Ritters objected to the motion, but the trial court compelled arbitration. The Ritters then moved the trial court to alter, amend, vacate, or reconsider its order compelling arbitration, but the trial court denied their motion. The Ritters appeal, arguing that Grady Buick could not compel arbitration because, they argue, it was neither a party to the legal action nor a party to the purchase contract; they argue that they named Grady Automotive in their complaint and that Grady Automotive was the party with whom Mrs. Ritter entered into the purchase contract, although some other sales documents were executed in the name of Grady Buick. Further, they argue that the merger clause in the purchase contract rendered the separate arbitration agreement invalid and that in any event the arbitration agreement does not bind Mr. Ritter because he did not sign it.

Standard of Review

We conduct a de novo review of a trial court’s order compelling arbitration. Smith v. Mark Dodge, Inc., 934 So.2d 375, 378 (Ala.2006).

“The party seeking to compel arbitration must first prove both that a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce.... Once this showing has been made, the burden then shifts to the nonmovant to show that the contract is either invalid or inapplicable to the circumstances presented.”

Smith, 934 So.2d at 378.

Analysis

The Ritters do not dispute the existence of an arbitration agreement, nor do they dispute that the contract evidences a transaction involving interstate commerce. Instead, they argue only that the arbitration agreement does not apply to this case.

I.

First, the Ritters argue that Grady Buick cannot compel arbitration of their claims because, they argue, Grady Buick was not a party to the purchase contract and is not a party to this action. Instead, the Ritters argue, Grady Automotive is the named defendant and the other party to the purchase contract. The purchase contract is a form contract, printed on letterhead bearing the name “Grady Automotive Group.” However, the disclaimer of warranties contained within the purchase contract names Grady Buick as the “seller” of the automobile, and other documents signed at the time of the purchase name Grady Buick as the seller as well.

Grady Buick argues that the Ritters have waived this argument by failing to raise it in the trial court. See Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987) (“[0]n appeal, this court is limited to a review of the record alone, and an issue not reflected in the record as having been raised in the trial court cannot be raised for the first time on appeal.” (citing Mobile Wrecker Owners v. City of Mobile, 461 So.2d 1303 (Ala.1984))). The Ritters respond by arguing that Grady Buick raised the issue before the trial court in its motion to compel arbitration. In their reply brief to the Court, the Rit-ters cite the following excerpt from Grady Buick’s motion to compel: “Comes now the Defendant, Grady Buick Company, Inc. (hereinafter ‘Grady’), incorrectly named Grady Automotive Group, Inc. ” (emphasis added in reply brief). However, Grady Buick’s statement in its motion to compel does not raise the issue the Ritters now argue to this Court. In the motion to compel arbitration, Grady Buick asserted a naming error in the Ritters’ complaint. It made no argument as to whether it was a party to the purchase contract. Moreover, the Ritters did not challenge Grady Buick’s assertion in the trial court. In fact, in their objection to the motion to compel arbitration, the Ritters referred to the “ ‘Motion to Compel Arbitration and For Stay Pending Arbitration’ filed by Defendant, Grady Buick Company, Inc.” Instead of arguing that Grady Buick could not enforce the arbitration agreement because it was not a party to the action, the Ritters identified Grady Buick as the defendant. In their objection to the motion to compel, they also failed to argue that Grady Buick was not a party to the purchase contract. Because the Ritters first raise this identity issue on appeal, we do not review it. See Totten, 507 So.2d at 503.

II.

Next, the Ritters argue that the arbitration agreement does not apply because the purchase contract contains a merger clause. The purchase contract contains the following terms enclosed in a box:

“DISCLAIMER OF WARRANTIES “The Seller, GRADY BUICK CO., Inc. hereby expressly disclaims all warranties, either expressed or implied....
“I COMPLETELY UNDERSTAND GRADY BUICK CO., INC. IS NOT OBLIGATED TO FURNISH TRANSPORTATION WHILE MY VEHICLE IS BEING SERVICED.
“The dealer is not a party to any manufacturer’s or third party warranty.... “No oral representations are binding unless written on this form and all terms of the agreement are printed or written herein.”

(Capitalization in original; emphasis added.) The Ritters argue that the last sentence of the disclaimer emphasized above constitutes a merger clause and that all prior or contemporaneous agreements and negotiations have thereby been merged into the purchase contract. Therefore, they argue, the separate agreement to arbitrate, which was not mentioned in the purchase contract, is not part of the contract with Grady Buick and does not apply to this case.

A merger clause creates “a presumption that the writing represents an integrated, that is, the final and complete, agreement of the parties.” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (AIa.2001). A merger clause invokes the parol evidence rule, which precludes a court from considering extrinsic evidence of prior or contemporaneous agreements in order to “change, alter, or contradict” the terms of the integrated contract. Palm Harbor Homes, 798 So.2d at 660.

A merger clause, however, does not bar evidence of contemporaneous collateral agreements between the parties. See Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280, 288 (Ala.2006) (“ ‘ “It is only when the instrument shows that it does not contain all the terms of the contract as to both parties to it that evidence may be offered to show further stipulation than those expressed, unless it is proposed to prove an engagement independent of and collateral to the matters embraced in such written instrument.” ’ ” (quoting Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 153,117 So.2d 348, 352 (1960), quoting in turn Woodall v. Malone-Harrison Motor Co., 219 Ala. 366, 368, 122 So. 357, 358 (1929) (emphasis added in Shapiro)))-, and Southern Guar. Ins. Co. v. Rhodes, 46 Ala.App. 454, 459, 243 So.2d 717, 721 (1971) (“This [merger-clause] principle does not prohibit negotiation of more than one agreement at the same time.... If such agreements are clearly collateral, separate and distinct as to subject matter there is no problem presented. They are two separate contracts and are to be considered as such.”).

In Hartford Fire, this Court quoted various tests used by other courts to determine whether an agreement is collateral and therefore outside the scope of a merger clause. The Court quoted Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), a “leading case,” which gave three requirements for an agreement to be beyond the scope of a merger clause: “ ‘(1) The agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing.’ ” Hartford Fire, 270 Ala. at 154, 117 So.2d at 353 (quoting Mitchill v. Lath, 247 N.Y. at 381, 160 N.E. at 647). The Court also quoted Professor Wigmore, IX Wig-more, Evidence § 2430, 98 (3d ed.): “ ‘This intent [to form a collateral agreement] must be sought where always intent must be sought ..., namely, in the conduct and language of the parties and the surrounding circumstances.’ ” 270 Ala. at 154, 117 So.2d at 353. In Southern Guaranty, the Court of Civil Appeals looked to the “conduct and language of the parties, the surrounding circumstances and the written instrument” in order to determine “whether it was the intent of the parties that the written instrument embody all of the prior negotiations ... or whether ... it was intended there be an additional, collateral and separate oral agreement.” 46 Ala. App. at 459, 243 So.2d at 721. That court also looked to the Mitchill test to evaluate the collateral nature of the agreements.

We held in Alabama Electric Cooperative that an oral agreement to insure was not collateral to an insurance policy, “[i]n light of the fact that the written contract dealt expressly with the subject matter of the alleged collateral oral agreement.” 950 So.2d at 289. The oral agreement “was one the parties would naturally have included in the written agreement.” 950 So.2d at 289. Similarly, we held in Hartford Fire that an oral agreement to insure was not collateral to an insurance policy because it was “closely bound to the written one, and no doubt intended to be made part and parcel thereto.” 270 Ala. at 155, 117 So.2d at 354. The Court of Civil Appeals held in Southern Guaranty that the oral agreement to insure met none of the three factors of the Mitchill test and, therefore, was not a collateral agreement.

In this case, the free-standing, written, and separately executed arbitration agreement meets all three prongs of the Mitch-ill test. First, it is “collateral in form.” In Southern Guaranty, the Court of Civil Appeals held that an oral agreement to, among other things, provide coverage for the insured’s son under an automobile insurance policy was not “collateral in form” because it was “identical with the written policy as amended, except for coverage of appellee’s son as a driver.” 46 Ala.App. at 460, 243 So.2d at 722. Moreover, “the property insured [was] the same.” 46 Ala. App. at 460, 243 So.2d at 722. The arbitration agreement in this case is not identical in nature to the purchase contract. The purchase contract covers only that one specific transaction and relates exclusively to Mrs. Ritter’s purchase of the BMW 745Li, whereas the arbitration agreement governs the relationship between the parties preceding and following the sale of the car. It covers “any of the negotiations leading to the sale, lease or financing of the vehicle, terms and provisions of the sale, lease or financing agreement, arrangements for financing, purchase of. insurance, purchase of extended warranties or service contracts, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease or financing.” Unlike the agreements in Alabama Electric Cooperative, the purchase contract does not “deal[] expressly with the subject matter” of the arbitration agreement. 950 So.2d at 289.

Professor Williston states that “ ‘there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Rule does not deny effect to the collateral agreement.’ ” 11 Richard A. Lord, Williston on Contracts § 33:28 (4th ed.1999) (quoting Magee v. Robinson, 218 Ark. 54, 58, 234 S.W.2d 27, 29 (1950)). In this case, we note that Mrs. Ritter and Grady Buick entered into a separately executed financing agreement, i.e., the retail-installment contract, for the sale of the car. Although the purchase contract makes no mention of a separate financing agreement, the Ritters do not claim that the financing agreement cannot be enforced against them because of the merger clause in the purchase contract. It, like the agreement to arbitrate, is a collateral agreement between the parties. Just as it is “natural” to enter into a separate financing agreement in order to facilitate the purchase of a car, so it is natural to enter into a separate arbitration agreement. The arbitration agreement covers disputes that may arise between the parties, whether the disputes arise from the purchase contract, the financing agreement, or other agreements such as the purchase of insurance, extended warranties, or service contracts that the parties executed. Thus, the arbitration agreement is “collateral in form.” See also Bank Julius Baer & Co. v. Waxfield, Ltd., 424 F.3d 278 (2d Cir. 2005) (holding that a merger clause in a pledge agreement did not void a previously executed arbitration agreement between the parties).

Second, to be collateral, the arbitration agreement “ ‘must not contradict express or implied provisions of the written contract.’ ” Hartford Fire, 270 Ala. at 154, 117 So.2d at 353 (quoting Mitchill, 247 N.Y. at 381,160 N.E. at 647). In this case, the arbitration agreement does not contradict provisions of the purchase contract. The purchase contract makes no mention of disputes between the parties or procedures for handling problems in the relationship between the dealer and the buyer. By contrast, in Palm Harbor Homes, this Court enforced a merger clause in one instrument so as to exclude two other contemporaneous agreements because the latter instruments contradicted the terms of the first, which included the merger clause. 798 So.2d 656. The first instrument, an installment contract, contained an arbitration provision allowing the buyer to select the arbitrator, with the seller’s consent. The remaining two instruments, both arbitration agreements, required that any dispute resolution comport with the rules and procedures of the American Arbitration Association, including its procedures for selecting a three-person arbitration panel. This Court upheld the trial court’s decision to enforce the terms of the installment contract, holding that the parol evidence rule bars “consideration of the free-standing arbitration instruments,” 798 So.2d at 660, because they conflicted with the installment contract, which contained a merger clause. In this case, the terms of the purchase contract and the arbitration agreement present no such conflict.

Finally, “the parties would not ordinarily be expected to embody” the arbitration agreement in the purchase contract. Hartford Fire, 270 Ala. at 154, 117 So.2d at 353 (quoting Mitchill, 247 N.Y. at 381, 160 N.E. at 647). Although including an arbitration agreement within the purchase contract would have been proper, the agreements are not so related that one would expect them to be included in the same document. The arbitration agreement is not necessarily “one the parties would naturally have included in” the purchase contract. Alabama Elec. Coop., 950 So.2d at 289. The arbitration agreement thus meets all three requirements for a collateral agreement.

Because the arbitration agreement is a collateral agreement, distinct from the purchase contract, the merger clause in the purchase contract does not invalidate the arbitration agreement. The two contracts are separate: one governs the sale of the vehicle, and the other governs the resolution of disputes between the dealer and the buyer. “They are two separate contracts and are to be considered as such.” Southern Guaranty, 46 Ala.App. at 459, 243 So.2d at 721. Therefore, the merger clause in the purchase contract does not render the arbitration agreement inapplicable.

III.

Finally, the Ritters argue that the arbitration agreement does not apply to Mr. Ritter’s loss-of-consortium claim because he did not sign the agreement. They argue that he is not a party to the arbitration agreement and that, therefore, he is not bound by its terms. See Ex parte Dickinson, 711 So.2d 984, 989 (Ala. 1998) (“‘[A] party cannot be required to submit to arbitration any dispute he has not agreed to submit.’ ” (quoting Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Aa.1994))).

To support their argument, the Ritters cite Dickinson, in which a husband and wife purchased a car from a dealership. As part of the sale, both Mr. and Mrs. Dickinson signed a retail-installment contract. However, only Mr. Dickinson signed the retail buyer’s order, which contained an arbitration provision. Four Justices of this Court joined in the opinion holding that, although the arbitration provision applied to Mr. Dickinson’s claims, it did not cover Mrs. Dickinson’s claims because she did not sign the retail buyer’s order. Dickinson, 711 So.2d at 990 (“Because she was not a signatory to a contract containing an arbitration clause, she cannot be compelled to arbitrate.”).

Grady Buick compares the Ritters’ claims to those brought in Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998). In Partin, this Court discussed for the first time “whether a loss-of-consortium claim brought by a nonsignatory spouse must be arbitrated along with the claims of an injured spouse.” 727 So.2d at 6. The Court found that, although Mrs. Partin’s loss-of-consortium claim was separate from her husband’s claim, it “nevertheless springs from the same source” as Mr. Partin’s claim. 727 So.2d at 6. The operations contract, on which Mr. Partin based his claims, contained an arbitration agreement signed by Mr. Partin. The Court bound Mrs. Partin to that arbitration agreement as well, holding that, “because Brenda Partin’s claims are based upon the contract, her claims are subject to the arbitration clause contained therein.” 727 So.2d at 7.

Mr. Ritter’s loss-of-consortium claim stems from Mrs. Ritter’s purchase of the BMW 745LL Like Mrs. Partin, Mr. Ritter “alleges that [his] injury was caused by the same breach of duties that [his wife] says resulted in [her] injury.” 727 So.2d at 7. Specifically, the complaint states that, “[a]s a result of acts and failures to act set out earlier herein, Plaintiff, Darryl Bernard Ritter, lost the company, fellowship, cooperation and assistance of his wife.... ” The “acts and failures to act set out earlier” in the complaint are those allegations made by Mrs. Ritter, including misrepresentations, manufacturing and design defects, negligent and/or wanton installation of the air-bag and seatbelt systems, breach of contract, and breach of warranties. Therefore, just as Mrs. Ritter’s claims are subject to the arbitration agreement, so is Mr. Ritter’s claim. He ‘“cannot have it both ways; [he] cannot rely on the contract [between his wife and Grady Buick] when it works to [his] advantage and then repudiate it when it works to [his] disadvantage.’ ” Partin, 727 So.2d at 7 (quoting A.L. Williams & Assocs., Inc. v. McMahon, 697 F.Supp. 488, 494 (N.D.Ga.1988)). Therefore, the trial court correctly ordered Mr. Ritter to arbitrate his loss-of-consortium claim against Grady Buick.

Conclusion

The Ritters fail to show that the agreement to arbitrate “is either invalid or inapplicable to the circumstances presented.” Smith, 934 So.2d at 378. Therefore, we affirm the trial court’s order compelling arbitration of the Ritters’ claims.

AFFIRMED.

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

      . The arbitration agreement signed by Mrs. Ritter contains the following language: "READ THIS ARBITRATION [AGREEMENT] CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING THE RIGHT TO BRING A COURT ACTION. SIGN IT ONLY IF YOU UNDERSTAND IT." (Capitalization in original.) It purports to cover
      "all claims, demands, disputes, or controversies of every kind or nature that may arise between [the buyer and the dealer] concerning any of the negotiations leading to the sale, lease or financing of the vehicle, terms and provisions of the sale, lease or financing agreement, arrangements for financing, purchase of insurance, purchase of extended warranties or service contracts, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease or financing."

      . Specifically, the retail-installment contract, power of attorney, certificate of out-of-county buyer, application for a certificate of title, and vehicle-invoice receipt refer to Grady Buick. Also, Mrs. Ritter made her checks to purchase the car payable to Grady Buick. However, the salesman’s worksheet, purchase contract, and delivery checklist used the name Grady Automotive.

      . As we noted above, the intent to form a collateral agreement " 'must be sought where always intent must be sought ..., namely, in the conduct and language of the parties and the swrounding circumstances.’ " Hartford Fire, 270 Ala. at 154, 117 So.2d at 353 (quoting IX Wigmore, § 2430). The fact that the parties executed a number of agreements on various aspects of their relationship is persuasive evidence indicating that they did not intend that only one of those agreements would be effective.

      . See also Edwards Motors, Inc. v. Hudgins, 957 So.2d 444 (Ala.2006) (enforcing an arbitration agreement, which was a separate document from the motor-vehicle installment-sales contract, credit application, and promissory note also executed when a buyer purchased an automobile); Ex parte Bill Heard Chevrolet, Inc., 927 So.2d 792 (Ala.2005) (enforcing an arbitration agreement, signed as part of the purchase of an automobile, as a separate document from the "Retail Purchase Contract” and "BailmenVConditional Delivery Agreement”); Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So.2d 287 (Ala. 2004) (enforcing a separate arbitration agreement, which the purchaser of a sport-utility vehicle signed in addition to a retail-installment contract and other documents); and Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777 (Ala.2000) (enforcing an arbitration agreement that was signed separately from the purchase contract covering the sale of a mobile home).


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Carol R. SKELTON, The Springhill Apartments, LLC, and Doris Jenkins Hall v. J & G, LLC.
    2050502.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.
    Certiorari Denied May 11, 2007 Alabama Supreme Court 1051695.
    Robert W. Pollard of Pollard Law Firm, LLC, Tuscaloosa, for appellants.
    Isaac P. Espy and W.A. Hopton-Jones, Jr., of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellee.
   THOMPSON, Judge.

This is the second time this case has come before this court on appeal. Carol R. Skelton and The Springhill Apartments, LLC (“Springhill”) (collectively “the plaintiffs”), filed a complaint in the trial court seeking to redeem property known as Springhill Apartments (“the property”) from J & G, LLC (“J & G”). Thereafter, Doris Jenkins Hall filed a motion in which she sought to be substituted as the plaintiff or, in the alternative, to be added as an additional plaintiff in the action. In her motion, Hall alleged that the plaintiffs had assigned their redemption rights to her. The trial court entered an order adding Hall as a plaintiff. (Hall is hereinafter included in our designation of “the plaintiffs.”)

Following ore tenus proceedings, the trial court entered a judgment in favor of J & G. In its judgment, the trial court found that the plaintiffs had lost their right to redeem the property. The plaintiffs appealed. On appeal, this court concluded that the plaintiffs had not forfeited their right of redemption. This court reversed the judgment and remanded the case for the trial court to address the remaining issues in the case. See Skelton v. J & G, LLC, 922 So.2d 926 (Ala.Civ.App.2005).

Following ore tenus proceedings on remand, the trial court entered a new judgment on February 6, 2006, determining that the redemption price as of January 31, 2006, was $1,035,437.30; the trial court also determined that additional daily interest would be calculated at a rate of 12% per annum until the property was actually redeemed. The trial court ordered that “[rjedemption shall be accomplished on or before twelve o’clock on March 8, 2006,” and that

“should the plaintiffs] ... not actually pay the redemption price as set out above, on or prior to noon on March 8, 2006, then the ... plaintiffs] shall forfeit all right and interest in the real property made the subject of this lawsuit and shall forfeit all right of redemption therein.”

The plaintiffs appealed to the supreme court on March 7, 2006; that court transferred this appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

At the time of the filing of the notice of appeal, the plaintiffs did not file a superse-deas bond or a motion to stay the trial court’s judgment. On March 21, 2006, J & G filed in this court a motion to dismiss this appeal, arguing that the appeal was moot because the judgment had not been stayed and the plaintiffs had not exercised their right to redeem the property within the time period specified in the trial court’s judgment. On April 11, 2006, this court entered an order stating that it would consider that issue when the case was submitted for a decision.

The dispositive issue is whether the appeal is made moot by the fact that there was no supersedeas bond or motion to stay filed in the trial court. Based on this court’s reasoning in Estate of Mollett v. M & B Builders, L.L.C., 749 So.2d 466 (Ala. Civ.App.1999), we agree with J & G that this appeal is due to be dismissed as being moot.

In Estate of Mollett, supra, Mollett had owned a house that was subject to a mortgage. After Mollett’s death, the mortgage payments became past due. The mortgagee foreclosed, and M & B Builders, L.L.C. (“M & B”), purchased the property. Later, Mollett’s estate sought to redeem the property from M & B. Following ore tenus proceedings, the trial court entered a judgment determining that the redemption price was $45,360.53, which included, among other items, $25,000 for permanent improvements made to the property by M & B. The trial court ordered that the estate had 20 days from the date of the entry of the judgment to redeem the property from M & B. 749 So.2d at 467. The estate appealed. M & B cross-appealed, arguing, among other things, that the appeal was moot because of the estate’s failure to file a supersedeas bond or to be granted a stay. Id.

This court agreed with M & B that the appeal was moot and accordingly dismissed the appeal and the cross-appeal. Estate of Mollett, supra. In so doing, this court stated:

“Under Rule 62, Ala. R. Civ. P., and Rule 8(c), Ala. R. [App.] P., a supersede-as bond must be posted to stay the execution of a judgment in this kind of case. The purpose of a supersedeas bond is to maintain the status quo of the parties, pending the appeal. Ex parte Lumbermen’s Underwriting Alliance, 662 So.2d 1138 (Ala.1995). The superse-deas bond ensures that the party who has obtained a judgment will not be prejudiced by a stay of execution of the judgment pending the final determination of an appeal. Id.
“In this case, the trial court limited the right of redemption to 20 days. Although the estate filed the appeal within 20 days, the judgment was not stayed, because no supersedeas bond was filed. Therefore, the estate lost its right to redeem the property, because under the trial court’s judgment the period for redemption was limited to 20 days. When the 20 days elapsed, without the judgment having been stayed, the right of redemption was lost, making these appeals moot. ‘[A]n appeal will be dismissed as moot “if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief.” ’ Masonry Arts[, Inc. v. Mobile County Commission,] 628 So.2d [334,] 335 [ (Ala.1993) ], quoting Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16,18 (1963).”

Estate of Mollett, 749 So.2d at 467-69.

Similarly, in this case, the trial court limited the right of redemption to 30 days from the date of the entry of its judgment, i.e., noon on March 8, 2006. Although the plaintiffs filed the appeal on March 7, 2006, the judgment was not stayed. Therefore, when the time period for redemption elapsed, without the judgment having been stayed, the plaintiffs lost their right of redemption, thereby making this appeal moot. Masonry Arts, Inc. v. Mobile County Commission, supra; and Estate of Mollett v. M & B Builders, supra. Accordingly, we dismiss the appeal as being moot.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result, with writing.

MURDOCK, Judge,

concurring in the result.

Because the plaintiffs in this case filed neither a motion for a stay nor a superse-deas bond, I concur in the result reached by the main opinion.


author: THOMAS, Judge.

text:
    D. Larry ABSTON v. ESTATE OF James D. ABSTON, Sr., and First United Security Bank.
    2050961.
    Court of Civil Appeals of Alabama.
    May 18, 2007.

      Nathan G. Watkins, Jr., Livingston, for appellant.
    C. Robert Montgomery, Chatom, for ap-pellee Estate of James D. Abston, Sr.
    Robert P. Reynolds of Reynolds, Reynolds & Duncan, LLC, Tuscaloosa, for ap-pellee First United Security Bank.
   THOMAS, Judge.

Before his death, James D. Abston, Sr. (“the father”), and three of his four children — James D. Abston, Jr. (“Junior”), Thomas Eddie Abston (“Eddie”), and Jimmie Faye McFadden — were the record titleholders of a parcel of real property in Washington County. After the father died in 2003, the coexecutors of his estate sold the property. From that sale, the estate received $136,978.76, representing the value of the father’s undivided one-fourth interest in the property.

On November 24, 2004, D. Larry Abston (“Larry”), the father’s child whose name was not on the deed to the Washington County property, filed a complaint seeking a judgment declaring that the proceeds of the sale of the property should be distributed to him rather than to the creditors of the estate because, he claimed, he was the beneficiary of a resulting trust. The estate answered, denying that Larry had any claim to the proceeds of the sale. First United Security Bank (“the Bank”), a creditor of the estate, moved to intervene; the trial court granted the Bank’s motion.

The Bank propounded interrogatories and requests for production of documents, seeking the basis for Larry’s claim. In response, Larry produced a document entitled “Notice of Federal Tax Lien”; an agreement between the coexecutors of the estate to allow the sale of the Washington County property; correspondence relating to the sale of the property; and an untitled, unsworn document signed by Larry’s brothers, Junior and Eddie, stating that their father was the trustee of a one-quarter interest in the property and that Larry was the beneficiary of the trust and, thus, the equitable owner of a one-quarter interest in the property.

The Bank moved for a summary judgment, attaching to its motion the documents it had obtained from Larry in discovery. The estate joined the Bank’s motion. In opposition to the motion, Larry submitted his own affidavit as well as other documentary materials. The trial court entered a summary judgment in favor of the estate and the Bank, concluding that Larry’s submissions in opposition to the motion had failed to establish the elements of a resulting trust. Larry timely appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Section 35-4-255, Ala.Code 1975, provides:

“No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing.”

“It is well understood that a resulting trust arises by operation of law, in favor of him who advances the purchase money for land, though the title be taken in the name of another.” Sanders v. Steele, 124 Ala. 415, 418, 26 So. 882, 885 (1899). “A resulting trust is a creature of equity, based on the presumption that he who furnishes the consideration for the purchase of lands intends the purchase for his own benefit.” Leonard v. Duncan, 245 Ala. 320, 322, 16 So.2d 879, 881 (1944). A trust “arising as the result of a conveyance of property to one person on a consideration from another, [is] commonly referred to as a purchase-money resulting trust.” McClellan v. Pennington, 895 So.2d 892, 896 (Ala. 2004). “Persons seeking to establish a resulting trust in land must not only show that the consideration moved from them, but that it was paid contemporaneous with the purchase of the land.” Gandy v. Ha-gler, 245 Ala. 167, 171, 16 So.2d 305, 308 (1944). “ ‘It is settled that the purchase price must be ordinarily furnished by one claiming a resulting trust at the very time of passage of title. The trust either arises at that very time, or it never arises at all. Subsequent contributions do not suf-fice_’ ” Shirley v. McNeal, 274 Ala. 82, 85, 145 So.2d 415, 417 (1962) (quoting the trial court’s order).

In opposition to the Bank’s summary-judgment motion, Larry submitted, among other things, his own affidavit. The affidavit states:

“My name is Larry Abston. I am the plaintiff in this case and a son of James D. Abston, Sr., who is now deceased. Sometime prior to April of 1994-, Abston Services, Inc. agreed to distribute to me and my three siblings an amount sufficient to purchase a parcel of property in Washington County, Alabama, as described in the original complaint. Title to three-fourths of the property was taken in the names of my three siblings. Title to my one-fourth interest in the property was taken in the name of my father ... in trust for my benefit. At the time of the purchase, an Internal Revenue Service (‘IRS’) tax lien had been filed against me. I disputed this lien and had taken action to have it released[;] however, we all (my three siblings, my father and I) agreed that it would be better for all involved if my father took title on my behalf after I had paid or caused to be paid my portion of the purchase price. This would prevent the IRS from filing a lien on the property while I continued to work on having the lien released. At no time were we trying to defraud the IRS; we just didn’t want my dispute with the IRS to have any negative effect on my siblings’ ownership of the property. It was understood that the trust would terminate at such time as the lien was released. The lien was eventually released; however, title was not conveyed to me by the Trustee before he passed away, because neither one of us knew the lien had been released. The property was sold in 2004 and the trust corpus was converted into personalty, i.e., $136,978.76, which is now being held in ... the trust account [of the attorney for the estate]. I executed a quitclaim deed conveying my interest to the purchaser. On November 15, 2004, my two brothers, [Junior and Eddie], executed a document which acknowledged that this property had been held in trust by my father for my benefit. A copy of this document is attached hereto and marked Exhibit A to this affidavit.
“Besides having paid or caused to be paid my portion of the purchase price for the property, I also went into possession of the property and provided substantial ‘sweat equity’ in the form of building approximately 4 miles of roads, clearing of 5 fields, construction of a bridge over Sinabogue Creek, construction of approximately 3 miles of 4-wheeler trails, building 5 shooting houses, etc. I worked on our property for about two months. In all respects I was treated as a joint owner of the property. Along with my wife and children, I hunted on the property, used the camp house, took guests on the property, had keys to the gate, and had all privileges of an owner, privileges that had been discussed and agreed on by each of us (my siblings) as joint owners.
“My father and I never prepared a formal, written trust agreement. Since everything had been discussed and agreed to by each of us, since everyone knew that my interest in the property was being held by my father in trust, for my benefit, we didn’t think a formal written trust agreement was necessary to protect my interest. Obviously, this was a mistake; however it shouldn’t deprive me of my ownership of the funds being held in ... the trust account [of the attorney for the estate].”

(Emphasis added.)

I.

The Bank and the estate argue that the following statement in Larry’s affidavit is not substantial evidence of Larry’s payment of the purchase price of the Washington County property: “Sometime prior to April of 1994, Abston Services, Inc. agreed to distribute to me and my three siblings an amount sufficient to purchase a parcel of property in Washington County, Alabama.” The Bank and the estate contend that the foregoing statement is a mere conclusion because, they say, the statement is unsupported by any “can-celled checks, board resolutions, tax returns, Form 1099’s, memos, [or] letters.”

The Bank and the estate misapprehend the material fact sought to be proved. The source of the funds — a distribution from Abston Services, Inc. — that Larry allegedly used to pay for his portion of the purchase price of the Washington County property is immaterial for purposes of determining whether Larry established the elements of a resulting trust. The relevant material fact is whether — not how— Larry paid his portion of the purchase price at the time of the passage of title. See Shirley v. Neal, 274 Ala. at 85, 145 So.2d at 417.

The trial court erred in determining that Larry “failed to produce any substantial admissible evidence that he provided funds to the decedent to purchase an interest in the subject real property.” The statement in Larry’s affidavit that he had “paid or caused to be paid [his] portion of the purchase price for the property” constitutes substantial evidence of Larry’s payment. See, e.g., First State Bank of Altoona v. Barnes, 496 So.2d 53, 54 (Ala.Civ.App.l986)(holding that, when a secured party submitted evidence indicating that it had not received from the debtor the proceeds of a sale of equipment, the debtor’s affidavit stating that he had “paid the proceeds from the sale of ... equipment ... to [the secured party]” created a “genuine issue of material fact” as to payment). The statement in Larry’s affidavit that “we all (my three siblings, my father and I) agreed that it would be better for all involved if my father took title on my behalf after I had paid or caused to be paid my portion of the purchase price ” constitutes substantial evidence indicating that Larry’s payment was made “contemporaneous[ly] with the purchase of the land.” See Gandy v. Hagler, 245 Ala. at 171, 16 So.2d at 308.

Because we hold that Larry presented substantial evidence, in his affidavit alone, of the elements of a resulting trust, we need not address the admissibility or legal effect of the other documents Larry submitted in opposition to the Bank’s motion for a summary judgment.

II.

The estate argues that, even if Larry did present substantial evidence of the elements of a resulting trust, the summary judgment in favor of the estate is due to be affirmed because, it says, Larry is precluded under the doctrine of unclean hands from benefiting from the trust. Specifically, the estate contends that Larry’s attempt to shield his interest in the Washington County property from an Internal Revenue Service (“IRS”) tax lien constituted an attempt to defraud a creditor, which, the estate says, is unconscionable conduct that will bar the enforcement of a resulting trust. Citing Cone v. Cone, 331 So.2d 656 (Ala.1976), the estate maintains that “‘a court of equity will never imply or enforce a trust, springing out of transaction, in which the party seeking to enforce it, has been guilty of fraud or immoral conduct,’ ” id. at 659 (quoting Glover v. Walker, 107 Ala. 540, 545,18 So. 251, 254 (1894)).

In Cone, a husband purchased property and took title in his own name. Later, he transferred title to his wife in order to protect the property from the claims of his creditors. The supreme court held that no resulting trust could arise because “[t]he property ... was not purchased with the funds of one party and title taken in the name of [another party].” 331 So.2d at 658. “It was not until several years subsequent to his purchase that [the husband] transferred title to [the wife]. Thus, the elements of a resulting trust are not present.” Id. The court continued, however, explaining in a discussion not necessary to the holding, that “any alleged resulting trust that might otherwise have arisen under the facts of this case will not be enforced,” id. at 659, quoting the following principle from Bogert, Trusts and Trustees § 463 at 634-35 (2d ed.1964):

“ ‘[I]f A pays for land and has it conveyed by absolute deed to B, with the intent of cheating A’s creditors, the court will render A no aid in securing the enforcement of the resulting trust which would normally be implied for his benefit....’”

331 So.2d at 659. See also Woodard v. Funderburk, 846 So.2d 363 (Ala.Civ.App. 2002).

In Woodard, this court held that a father who paid for land and placed title in his son’s name could not have a resulting trust implied for his benefit because the conveyance to the son was motivated by the father’s intent to avoid the claims of the Mississippi State Tax Commission, which had recovered a judgment against the father. Quoting from a more recent edition of the same authority upon which the supreme court had relied in Cone, this court stated:

“ ‘If the payor had the title run to another for the reason that he (the payor) desired to defeat, delay, or hinder his creditors, the case will be judged in the same way as an express trust for fraudulent purposes. Thus, if A conveyed to B in trust for A with the purpose of defrauding A’s creditors, A cannot enforce the trust for himself ordinarily, but his creditors can attack the transfer and get the benefit of the property. And so, if A pays for land and has it conveyed by absolute deed to B, with the intent of evading A’s creditors, the court will render A no aid in securing the enforcement of the resulting trust which would normally be implied for his benefit, but the creditors of A may take his equitable interest by resorting to the procedure required in such an instance in the particular jurisdiction.
“ ‘Some courts state that “no trust results” to the fraudulent payor of the consideration. It would seem more accurate to hold that a trust results, but that the beneficiary of it will not receive aid from the court in the enforcement of the trust because of his unconscionable conduct.’ ”

Woodard v. Funderburk, 846 So.2d at 369 (quoting George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 463 at 388-91 (rev.2d ed.1991) Xempha-sis omitted; emphasis added). As our emphasis on the word “ordinarily” in the above quote implies, there are exceptions to the rule that one who transfers property with the intent to avoid the claims of a creditor will not be allowed to enforce a resulting trust.

Sections 422 and 444 of the Restatement (Second) of Trusts (1959), establish a balancing test to determine whether to enforce a resulting trust when the transferor has engaged in illegal conduct. Section 422 deals with an express trust that fails for illegality of purpose. Section 444 deals with a transfer of property under circumstances like those present here, i.e., property is purchased by one person and title is taken in the name of another person in order to accomplish an illegal purpose. The balancing test stated in both sections is based upon the same policy. See Comment a., Restatement (Second) of Trusts § 444 (1959). “Whether the owner of property transfers it upon a trust which fails for illegality ..., or whether property is purchased and title taken in the name of another to accomplish an illegal purpose, a resulting trust arises unless the circumstances are such that it is against public policy to enforce such a resulting trust.” Id. (emphasis added).

The balancing test requires a court to weigh the interests of the parties and the public interest:

“As between the parties it is just that a resulting trust should be imposed in order to prevent the transferee from being unjustly enriched at the expense of the transferor. The interest of the public, however, may require that the transferee be permitted to enrich himself unjustly at the expense of the transferor. The result of the refusal of the court to enforce a resulting trust is not only to penalize the transferor but to enrich the transferee. This result is justified, if at all, on the ground that it tends to prevent such illegal transactions and on the ground that the public should not be burdened with the expense of adjusting claims based on illegal transactions. It is impossible to state a definite rule which will determine in all cases whether a resulting trust will be imposed or not, since the court will consider all the circumstances involved in the particular case.”

Comment a., Restatement (Second) of Trusts § 422.

In Fenderson v. Fenderson, 454 Pa.Super. 412, 685 A.2d 600 (1996), a case with facts very similar to those in the instant case, three siblings contributed to the purchase price of land, but title was taken in the name of only two of them because the third sibling, Bryan Fenderson, had a personal-injury lawsuit pending against him. The trial court determined that, if a resulting trust existed, it was invalid because the trust had been created to avoid the claims of Bryan’s potential creditors. The appellate court reversed, holding that the resulting trust was “valid and must be enforced.” 454 Pa.Super. at 426, 685 A.2d at 606.

The appellate court recognized that the plaintiff in the lawsuit filed against Bryan was considered a creditor under the Pennsylvania Uniform Fraudulent Transfer Act, 12 Pa. Cons.Stat. § 5101(b), defining a creditor as “any person who has a claim [or a] right to payment regardless of whether it is reduced to judgment, liquidated, fixed, contingent, matured, unma-tured or disputed.” 454 Pa.Super. at 425, 685 A.2d at 606. The court reasoned that “it would seem as if a resulting trust [could not] arise in favor of Bryan Fenderson because he contributed to the purchase price without taking title in order to defraud a potential creditor.” Id. The court further reasoned, however, that § 444 of the Restatement (Second) of Trusts, specifically Comment a. to that section, “allows a resulting trust created for an illegal purpose to arise unless it is against public policy to enforce such a resulting trust.” Id. Finally, the appellate court, noting the trial court’s finding that the lawsuit against Bryan Fenderson had been dismissed with prejudice, concluded:

“[I]t is not against public policy to enforce the instant resulting trust when the filed lawsuit was dismissed without any evidence that the claim which Bryan sought to avoid had any substantial foundation. As a result, the resulting trust in favor of Bryan Fenderson is valid and must be enforced.”

454 Pa.Super. at 425-26, 685 A.2d at 606. See also Palumbo v. Palumbo, 55 Misc.2d 264, 284 N.Y.S.2d 884 (1967)(holding that, when a husband who had been sued by two other parties in a negligence action conveyed property to his wife in an attempt to avoid the potential creditors but the negligence action was later disposed of without a judgment against the husband, and the wife refused to reconvey the property to the husband, the wife had failed to meet her burden of proving that the potential creditor’s claim had “any substance”); Thompson v. Steinkamp, 120 Mont. 475, 483, 187 P.2d 1018, 1022 (1947)(using the balancing test set out in § 422 of the Restatement to impose a trust on property that the husband had paid for before he died — but had titled in the name of another in order to avoid the alimony-arrearage claims of his ex-wife — because the ex-wife had filed no claim against the husband’s estate and to hold otherwise would “de-privet] [the current wife, the husband’s widow, who was innocent of any wrongdoing] of her dower interest in the property as well as her right of inheritance”).

We have previously determined that Larry’s affidavit presented substantial evidence creating a question of fact as to whether Larry paid for his share of the Washington County property at the time title was taken in the name of his father and three siblings. Because Larry submitted evidence indicating that he had disputed the validity of the federal tax lien that was filed against him, that he had taken action to have the lien released, and that the lien was eventually released, we hold that his affidavit presents additional questions of fact with respect to whether Larry had a good-faith dispute with the IRS as to the validity of the lien, whether the lien had “any substantial foundation,” see Fenderson, 454 Pa.Super. at 425-26, 685 A.2d at 606, and whether it would violate public policy to enforce a resulting trust in favor of Larry, see Restatement (Second) of Trusts § 444, Comment a.

The judgment of the Choctaw Circuit Court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Section 422 states:
      “Where the owner of property transfers it inter vivos upon an intended trust which fails for illegality, a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.”

      . Section 444 states:
      “Where a transfer of property is made to one person and another pays the purchase price in order to accomplish an illegal purpose, a resulting trust does not arise if the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.”

      . Like the Pennsylvania statute, the Alabama Fraudulent Transfer Act, § 8-9A-1 et seq., Ala.Code 1975, is based upon the Uniform Fraudulent Transfer Act. Section 8-9A-l(4), Ala.Code 1975, defines a creditor as "[a] person who has a claim.”


author: MOORE, Judge.

text:
    J.O. SIMS and Gary Watkins v. GREEN TREE ALABAMA, LLC.
    2050563.
    Court of Civil Appeals of Alabama.
    May 18, 2007.
    Kevin D. Teague, Decatur, for appellants.
    Patrick 0. Gray and Gary E. Sullivan, Tuscaloosa, for appellee.
   MOORE, Judge.

J.O. Sims and Gary Watkins appeal from the Lawrence Circuit Court’s summary judgment in favor of Green Tree Alabama, LLC (“Green Tree”). In March 2004, Green Tree filed a complaint against Sims, claiming possession of a mobile home that was located on property owned first by Sims and later by Watkins; Watkins was subsequently added as a defendant. Sims and Watkins counterclaimed, specifically asserting a landlord’s lien for unpaid rent (“the landlord’s lien claim”), and a separate claim for storage and rental fees (“the storage claim”); Watkins also asserted a separate claim for reimbursement for improvements that he had made to the mobile home (“the labor claim”). The trial court entered a summary judgment in favor of Green Tree on its claim; it subsequently entered a summary judgment in favor of Green Tree on Sims’s and Watkins’s counterclaims. Sims and Watkins appeal the summary judgment on their counterclaims.

Facts

In May 1997, Rodney Shankle and Charlie Shankle (hereinafter collectively referred to as “the Shankles”) purchased a mobile home from Jerry Young Homes for approximately $25,000; Green Tree, the assignee of the contract between the Shan-kles and Jerry Young Homes, retained a security interest in the mobile home. The Shankles moved the mobile home onto property owned by Sims and paid Sims $150 per month in rent. The Shankles subsequently defaulted on their payments on the mobile home, ceased paying rent to Sims, declared bankruptcy, and abandoned the mobile home, which was later damaged by a fire.

In approximately April 2003, Watkins purchased from Sims the property on which the damaged mobile home was located. Watkins repaired the mobile home using his own funds and began using the mobile home as a residence.

Procedural History

Green Tree filed a complaint against Sims in the Morgan Circuit Court in March 2004, requesting a judgment against Sims for possession of the mobile home or for its alternative value. Sims answered and counterclaimed, asserting the landlord’s lien claim resulting from the Shankles’ failure to pay rent to Sims and the storage claim resulting from Green Tree’s having abandoned the mobile home, or otherwise having allowed the mobile home to remain, on Sims’s property without his consent or authorization.

On May 5, 2004, the Morgan Circuit Court transferred the case to the Lawrence Circuit Court. On May 20, 2004, Green Tree amended its complaint to add Watkins as a defendant. In an answer to the amended complaint, Sims and Watkins counterclaimed, asserting jointly and separately the landlord’s lien claim and the storage claim. Additionally, Watkins separately asserted the labor claim, in which he alleged that he was entitled to be compensated for “work and labor, and the increased value of said manufactured home that was totally lost as the result of fire” by virtue of repairs and improvements that he had made to the mobile home using his own funds and that he was entitled to damages based on “quantum merit or unjust enrichment; and damages for work, labor and storage of said manufactured home.”

On September 28, 2004, the trial court entered a summary judgment for Green Tree on its claim for possession of the mobile home. A writ of execution was issued on that judgment on December 3, 2004.

On June 7, 2005, Watkins and Sims amended their answer to assert additional counterclaims; they jointly and separately asserted a claim of nuisance based on Green Tree’s having allowed the mobile home to remain on the property for an unreasonable amount of time after it had been awarded possession of the mobile home, alleged damage to Watkins’s property from the removal of the mobile home on or about December 2, 2004, and asserted a claim of trespass for “allowing or causing, entering or remaining, failing to remove in a timely manner wherein a duty existed to remove, a manufactured home, upon the real property of the defendants.”

On August 3, 2005, Green Tree filed a third-party complaint against Morgan City Home Center, LLC (“Morgan”), the company that Green Tree had hired to repossess the mobile home from Watkins’s property, claiming that Green Tree was entitled to indemnification from Morgan for any damages resulting from the repossession.

The case was set for trial on January 9, 2006, by an order dated November 9, 2005. Green Tree filed another motion for a summary judgment on December 2, 2005. The only claims addressed in Green Tree’s summary-judgment motion were Sims’s and Watkins’s original counterclaims i.e., the landlord’s lien claim, the storage claim, and the labor claim. In an order dated December 21, 2005, the trial court granted Green Tree’s motion for a final summary judgment as to those claims, stating:

“The court finds that, upon the showing of Counterclaim Defendant, there are no genuine issues of material fact in this case. Further, Counterclaim Plaintiffs, J.O. Sims and Gary Watkins, have failed to submit affidavits or evidence in opposition to the Motion for Summary Judgment. Accordingly, Counterclaim Defendant’s Motion is due to be and is hereby GRANTED.
“Disposing of all claims in the case, this is the Final Judgment of this Court under Rule 54(b) of the Alabama Rules of Civil Procedure.”

On December 29, 2005, Sims and Watkins filed a motion to vacate the December 21, 2005, order. Also on December 29, 2005, Sims and Watkins filed a response to Green Tree’s summary-judgment motion, with evidentiary materials attached. The trial court denied Sims and Watkins’s motion to vacate on March 13, 2006. Sims and Watkins filed a notice of appeal on April 10, 2006.

Discussion

Sims and Watkins first argue that the trial court erred in entering the December 21, 2005, summary judgment as a “final judgment.” Rule 54(b), Ala. R. Civ. P., states:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), [Ala. R. Civ. P.,] in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

Specifically, Sims and Watkins argue in their brief that the trial court’s order does not evidence a finding by the court that there is “no just reason for delay” in certifying that the judgment is final and that it does not “address each of the parties and their respective claims.”

We first note that the trial court’s order is ambiguous on its face. Specifically, the following statement is contradictory in itself: “Disposing of all claims in the case, this is the Final Judgment of this Court under Rule 54(b) of the Alabama Rules of Civil Procedure.” If the court’s order disposed of all claims in the case, it would not be necessary to invoke Rule 54(b), which allows the court to “direct the entry of a final judgment as to one or more but fewer than all of the claims.” (Emphasis added.)

However, this discrepancy can be resolved by examining Green Tree’s motion for a summary judgment. The only claims addressed in that motion were the landlord’s lien claim, the storage claim, and the labor claim. Green Tree did not submit any evidence to show that it was entitled to a summary judgment on Sims and Watkins’s counterclaims asserting nuisance, damage to the property resulting from the removal of the mobile home, and trespass. Therefore, we read the December 21, 2005, order as a partial summary judgment, resolving only those claims presented to it in Green Tree’s motion for a summary judgment. See Fogarty v. Southworth, 953 So.2d 1225 (Ala.2006); and Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala. 1999).

Because we find that the trial court’s intention was to enter a partial summary judgment in favor of Green Tree on Sims’s and Watkins’s original counterclaims, we now look to whether the judgment is properly before us under Rule 54(b). The Alabama Supreme Court has stated:

“[A] Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’” Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Do-than, N.A, 514 So.2d 1373, 1374 (Ala. 1987)).”

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006). Sims’s and Watkins’s unresolved counterclaims appear to relate to actions or omissions by Green Tree that occurred both before and at the time the mobile home was removed from the property. The counterclaims that were resolved by the trial court’s summary judgment also related to actions or omissions by Green Tree that occurred before the mobile home was removed from the property. We conclude, therefore, that the remaining counterclaims are so inextricably intertwined with the counterclaims that were resolved by the trial court’s December 21, 2005, order that separate adjudication of those claims would pose an unreasonable risk of inconsistent results, as contemplated by the Supreme Court in Schlarb. Because we find that Rule 54(b) certification was improper in this case, we dismiss Sims and Watkins’s appeal. H.P.H. Props., Inc. v. Cahaba Lumber & Millwork, Inc., 811 So.2d 554 (Ala.Civ.App.2001).

Based on the foregoing, we dismiss Sims and Watkins’s appeal from the trial court’s partial summary judgment.

APPEAL DISMISSED.

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