source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Jennifer Pera JENKINS and John H. Jenkins v. ATELIER HOMES, INC., and Frank Wallace.
    1081628.
    Supreme Court of Alabama.
    Sept. 30, 2010.
    Rehearing Denied Nov. 19, 2010.

      Melissa D. Endsley and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellants Jennifer Pera Jenkins and John H. Jenkins.
    Robert V. Wood, Jr., and Matthew T. Dukes of Wilmer & Lee, P.A., Huntsville, for appellees Atelier Homes, Inc., and Frank Wallace.
    John J. Callahan, Jr., and Lisa M. McCormack of Richardson Callahan & Frederick LLP, Huntsville, for Juan J. Barcenas d/b/a Morro’s Masonry.
   SMITH, Justice.

Jennifer Pera Jenkins and John H. Jenkins appeal from an order of the Madison Circuit Court granting the motion to compel arbitration filed by Atelier Homes, Inc., and Frank Wallace. We reverse and remand.

I. Facts and Procedural History

On May 4, 2009, the Jenkinses filed a complaint against Atelier Homes, Inc.; Frank Wallace (“Wallace”); Green Mountain Construction, Inc.; Frakes Insulation & Fireplaces, Inc.; and Juan J. Barcenas d/b/a Morro’s Masonry (“Barcenas”). The complaint alleged, in pertinent part, that, in September 2005, Atelier Homes, Inc., “by and through its designated representative, Wallace, obtained a building permit from the City of Huntsville ... to construct a residence ... for the [Jenkinses]”; that Atelier Homes, Inc., and Wallace “verbally represented to the [Jenkinses] that this residence was constructed to meet or exceed all of the best standards for residential construction in Huntsville”; that Atelier Homes, Inc., and Wallace “represented to the [Jenkinses] that everything in the [residence] would meet or exceed the building code requirements of the City of Huntsville before the [residence] was finished”; and that “the installation of the block foundation and brick veneer exterior was subcontracted by Atelier Homes[, Inc.,] and Wallace to [Barce-nas].”

On May 1, 2006, the Jenkinses closed on the purchase of the residence. Shortly after moving into the residence, the Jen-kinses noticed “water leaking through the vent for the range in the kitchen.” According to the complaint, a licensed structural engineer examined the residence and discovered numerous “defects and building code violations.” Thereafter, the Jenkins-es presented two separate written requests to Atelier Homes, Inc., and Wallace requesting that they “cure the defects and deficiencies” in the residence; however, the Jenkinses claim, Atelier Homes, Inc., and Wallace failed to respond to either of the requests for repairs.

The complaint stated the following counts against Atelier Homes, Inc., and Wallace: suppression; reckless misrepresentation; fraudulent misrepresentation; innocent misrepresentation; negligence; wantonness; breach of the implied warranty of habitability; breach of the implied warranty of good workmanship; and violations of the Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975.

On June 15, 2009, Atelier Homes, Inc., and Wallace moved the trial court to compel arbitration of the Jenkinses’ claims against them and to stay the trial court proceedings pending arbitration; defendants Green Mountain Construction, Inc., Frakes Insulation & Fireplaces, Inc., and Barcenas neither joined Atelier Homes, Inc., and Wallace’s motion to compel arbitration nor did they, individually or collectively, file separate motions to compel arbitration. In their motion, Atelier Homes, Inc., and Wallace contended that the Jen-kinses “entered into a contract for the construction of a residence in Madison County” and that, “[i]n the construction contract, the Jenkins[es] agreed to arbitrate any disputes between them and [Atelier Homes, Inc., and Wallace].”

Atelier Homes, Inc., and Wallace attached certain exhibits to their motion, including the affidavit of Adam Wallace. In his affidavit, Adam Wallace testified, in pertinent part:

“2. I am the Operations Manager of Atelier Homes, Inc. and Atelier Custom Homes, L.L.C. (collectively ‘Atelier Homes’), and I am fully authorized to make this affidavit on behalf of these entities.
“3. In my present position, I am a custodian of Atelier Homes’ books and records concerning the business dealings between Atelier Custom Homes, L.L.C. and John H. Jenkins and Jennifer Pera Jenkins (the ‘Jenkins’), and the transactions alleged as the basis of the above-styled action. I have reviewed said business books and records.
“4. Said books and records of Atelier Custom Homes, L.L.C. were made in the ordinary course of the business of, and it was the regular course of said business to make such books and records. Said books and records were made at the time of the transaction, occurrence or event referred to therein or were made within a reasonable time thereafter, and said books and records are kept under the care, supervision, and/or control of me and other employees or agents of Atelier Custom Homes, L.L.C.
“5. I am competent to testify to the matters set forth in this affidavit, which are based upon my review of said books and records of Atelier Custom Homes, L.L.C. and/or upon my own personal knowledge.
“6. The Jenkins filed the present action seeking to recover damages related to the construction of a residence in Madison County, Alabama. (See generally Compl.).
“7. The contract for construction of the residence between Atelier Custom Homes, L.L.C. and the Jenkins provided that Atelier Custom Homes, L.L.C. would construct a residence, subject to certain terms and conditions. A true and correct copy of the unexecuted Contractor Agreement (the ‘Contract’) is attached hereto as Exhibit 1. The executed Contract is currently lost. I have conducted a diligent search at every place the executed Contract would likely be found and have not located the Contract to date. Atelier Homes has not intentionally or negligently lost or destroyed the Contract. A true and correct copy of the executed Contract was provided to the Jenkins and should be in their custody or control. I will continue to diligently search for the executed Contract and, if located, will supplement this record with the document.
“8. As part of the Contract, the Jenkins entered into an arbitration agreement. The arbitration clause present in the Contract provides ‘[a]ll disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association.’ (See Contract at Article 5, ¶ 9).
“9. The Jenkins failed to submit this dispute to arbitration prior to filing suit, notwithstanding the arbitration clause.
“10. The Contract contains a written agreement to arbitrate and the Contract involved interstate commerce. Certain goods, funds, and documents crossed state lines in connection with the performance of the contract. For example, payments remitted by the Jenkins to Atelier Homes and by Atelier Homes to various vendors, suppliers, retailers, or subcontractors were made and applied using the interstate banking network.
In addition, the transaction involved interstate commerce because Atelier Custom Homes, L.L.C. and/or other persons or entities purchased substantial quantities of goods used in the construction of the house that have moved in interstate commerce.”

(Emphasis added.)

Atelier Homes, Inc., and Wallace also attached to their motion a copy of the “unexecuted” contract, which is labeled as “Contractor Agreement” (“the contract”). Article 5, paragraph 9, of the contract (“the arbitration clause”) provides: “All disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association.”

After the Jenkinses filed a response to the motion to compel arbitration, the trial court, on July 22, 2009, entered an order compelling arbitration of the Jenkinses’ claims against Atelier Homes, Inc., and Wallace and staying the trial court proceedings pending resolution of the arbitration proceeding. On August 11, 2009, the Jenkinses filed a “motion to reconsider.” It appears from the language of the motion to reconsider that the Jenkinses believed the trial court’s July 22, 2009, order compelled arbitration of their claims against all the defendants; specifically, the Jen-kinses argued that

“[Barcenas], Frakes Insulation & Fireplaces, Inc. and Green Mountain Construction, Inc. are not parties to the alleged contract before the Court and they have not filed a Motion to Compel Arbitration in this matter. The [Jen-kinses] have alleged direct claims against these contractors and these parties have not moved to compel arbitration. Therefore, it is error for the Court to unilaterally compel arbitration of the claims against these Defendants.”

On August 18, 2009, Barcenas filed a document entitled “opposition to plaintiffs’ motion to reconsider order compelling arbitration,” in which he asserted that the trial court should deny the Jenkinses’ motion to reconsider. Additionally, Barcenas stated:

“[The Jenkinses] assert that Barcenas did not previously formally file a Motion to Compel arbitration of this matter. Therefore, let this Response in Opposition to the [Jenkinses’] Motion to Reconsider suffice [the Jenkinses’] request for such formality.”

On August 20, 2009, the trial court entered an order “reaffirming] its Order of July 22, 2009.” In that order, the trial court stated, among other things:

“[T]his Court entered an Order on June 16, 2009, wherein the [Jenkinses] were ordered to respond in writing to the motion of the Defendants, Atelier Homes[, Inc.,] and Frank Wallace, concerning a motion to compel arbitration and to stay proceedings in this matter. Any opposition filed by the [Jenkinses] would then result in the Defendants (meaning Atelier Homes, Inc. and Frank Wallace) being able to supply their own responsive brief and supporting authorities to the Court. The [Jenkinses] timely filed an objection to the motion to compel arbitration, but the Court later entered an Order on July 22, 2009, compelling the request for arbitration as submitted by the named Defendants above [Atelier Homes, Inc., and Wallace]. The Court made this ruling prior to any further reply from the initial Movants and did not deem it necessary to receive any reply from any additional Defendants, although Defendant [Barce-nas] has since filed his own response wherein he joins the Movants’ motion to compel arbitration and stay these proceedings.”
The Jenkinses appeal.
II. Standard of Review
‘“We review the trial court’s grant or denial of a motion to compel arbitration de novo.’ McKay Bldg. Co. v. Juliano, 949 So.2d 882, 884 (Ala.2006) (citing Bowen v. Security Pest Control, Inc., 879 So.2d 1189, 1141 (Ala.2003)). ‘ “Initially, the party seeking to compel arbitration must prove 1) the existence of a contract calling for arbitration, and 2) that the contract ‘is “a contract evidencing a transaction involving commerce” within the meaning of the Federal Arbitration Act (FAA).’ ” ’ Owens v. Coosa Valley Health Care, Inc., 890 So.2d 988, 986 (Ala.2004) (quoting Hudson v. Outlet Rental Car Sales, Inc., 876 So.2d 455, 457 (Ala.2003), quoting in turn Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 53, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), quoting in turn 9 U.S.C. § 2). ‘The moving party “must ‘ “produce some evidence which tends to establish its claim.” ’ ” ’ Edwards v. Costner, 979 So.2d 757, 761 (Ala.2007) (quoting Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003), quoting in turn 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)). Finally, ‘[o]nce the moving party has supported his or her motion to compel arbitration, the nonmovant then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case.’ McKay, 949 So.2d at 884 (citing Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003)).”

Johnson v. Jefferson County Racing Ass’n, 1 So.3d 960, 963 (Ala.2008).

III. Issues

The dispositive issues may be summarized as follows: (1) whether the movants, Atelier Homes, Inc., and Wallace, met their initial burden in moving to compel arbitration of the Jenkinses’ claims; (2) whether Atelier Homes, Inc., and Wallace, as nonsignatories to the contract, may enforce the arbitration clause; and (3) whether the contract was void and, if so, whether that renders all provisions of the contract unenforceable.

TV. Discussion

A. Whether the movants met their initial evidentiary burden

As the parties seeking to compel arbitration, Atelier Homes, Inc., and Wallace had the burden of proving the existence of a contract calling for arbitration and that the contract is a contract evidencing a transaction involving commerce. See Johnson, supra. As noted, the movants supported the motion to compel arbitration with, among other things, the affidavit of Adam Wallace, in which he testified that the Jenkinses entered into a contract “providing] that Atelier Custom Homes, L.L.C. would construct a residence [for the Jenkinses]” (emphasis added); that the contract contains an arbitration clause providing that “[a]ll disputes hereunder shall be resolved by binding arbitration”; and that the transaction “involved interstate commerce” because, he said, “[c]ertain goods, funds, and documents crossed state lines in connection with the performance of the contract.” We conclude that the evidence presented by the movants was sufficient to meet their initial evidentiary burden in moving to compel arbitration.

B. Whether the movants may enforce the arbitration clause

In opposing arbitration, the Jen-kinses contend, among other things, that “an arbitration provision in a contract is generally enforceable only by the signatories of the contract.” The Jenkinses’ brief, p. 14 (citing Smith v. Mark Dodge, Inc., 934 So.2d 875 (Ala.2006)). Conversely, the movants contend that, under the doctrine of equitable estoppel, nonsignatories to a contract “can enforce an arbitration provision when the claims against the [nonsignatories] are ‘intimately founded in and intertwined with’ the underlying contract obligations.” Atelier Homes, Inc., and Wallace’s brief, p. 28 (quoting Smith, 934 So.2d at 380).

In Smith v. Mark Dodge, Inc., this Court stated:

“A party typically manifests its assent to arbitrate a dispute by signing the contract containing the arbitration provision. Ex parte Stamey, 776 So.2d 85, 88-89 (Ala.2000). One of the key exceptions to this rule is the theory of equitable estoppel, under which a nonsignatory can enforce an arbitration provision when the claims against the nonsignato-ry are ‘ “ ‘intimately founded in and intertwined with’ ” ’ the underlying contract obligations. Stamey, 776 So.2d at 89 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)).
“This Court has crafted one exception to that exception: unless the arbitration provision contains sufficiently broad language that indicates that the nonsignato-ry was contemplated as a party, we have repeatedly held that the nonsignatory lacks ‘standing1 to enforce the arbitration agreement. Med Ctr. Cars, Inc. v. Smith, 727 So.2d 9, 19 (Ala.1998); Ex parte Isbell, 708 So.2d 571, 581 (Ala.1997); Ex parte Jones, 686 So.2d 1166, 1168 (Ala.1996); and Ex parte Jones, 628 So.2d 316, 317 (Ala.1993). Where ‘the language of the arbitration provisions limited arbitration to the signing parties,’ this Court has not allowed the claims against the nonsignatories to be arbitrated. Stamey, 776 So.2d at 89.
“If an arbitration agreement is written in broad language so that it applies to ‘[a]ll disputes, claims or controversies arising from or relating to this Contract or the relationships which result from this Contract,’ Ex parte Napier, 723 So.2d 49, 51 (Ala. 1998) (emphasis added), or even in slightly narrower language so that it applies to ‘ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING FROM OR RELATING TO THIS CONTRACT OR THE PARTIES THERETO,’ Stamey, 776 So.2d at 91 (capitalization in original; emphasis added), this Court will proceed to determine whether arbitration may be compelled under the doctrine of equitable estoppel.
“Conversely, if the language of the arbitration provision is party specific and the description of the parties does not include the nonsignatory, this Court’s inquiry is at an end, and we will not permit arbitration of claims against the nonsignatory. See Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 131 (Ala.2002) (affirming the trial court’s order denying a nonsignatory’s motion to compel arbitration where the arbitration agreement was between ‘you [a signatory plaintiff] and us [a signatory defendant] or our employees, agents, successors or assigns’) (bracketed language added); Ex parte Lovejoy, 790 So.2d 933, 938 (Ala.2000) (issuing a writ of mandamus directing a trial court to enter an order denying a nonsignatory’s motion to compel arbitration where the arbitration provision was limited to ‘all disputes or controversies between you [Lovejoy] and us [Allen Motor Company and its assignees]’) (bracketed language and emphasis in original); First Family Fin. Servs. v. Rogers, 736 So.2d 553, 560 (Ala.1999) (reversing a trial court’s order granting a nonsignatory’s motion to compel arbitration where ‘you [the plaintijfs] and we [First Family] ’ agreed to arbitrate and the arbitration provision elsewhere stated that it applied to ‘all claims and disputes between you [the plaintiffs] and us [First Family],’ and furthermore stated that it applied to ‘any claim or dispute ... between you [the plaintiff] and any of our [First Family’s] employees or agents, any of our affiliate corporations, and any of their employees or agents ’) (bracketed language and emphasis in original); and Med Center Cars, 727 So.2d at 19 (affirming a trial court’s order denying nonsignatories’ motions to compel arbitration where the arbitration provisions were limited to disputes and controversies ‘BETWEEN BUYER AND SELLER’) (capitalization in original).”

934 So.2d at 380-81.

We must initially determine if “the arbitration provision contains sufficiently broad language that indicates that the non-signatory was contemplated as a party.” Smith, 934 So.2d at 380. Clearly, the language of the arbitration clause in this case is not “party specific.” See id. at 381. In fact, the language of the arbitration clause — “All disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association” — in no way limits the persons and/or entities who may seek to enforce the arbitration clause. Thus, although the evidence presented to the trial court establishes that the only parties to the contract were Atelier Custom Homes, L.L.C., and the Jenkinses, the arbitration clause contains sufficiently broad language indicating that nonsignatories Atelier Homes, Inc., and Wallace were contemplated as parties. See id. at 380. Accordingly, we will review the propriety of the trial court’s order compelling arbitration of the Jenkinses’ claims against Atelier Homes, Inc., and Wallace.

This Court will enforce an arbitration provision in a contract to which the party moving for arbitration is not a signatory in either of two instances. The first instance involves a “ ‘variation on the theory of “equitable estoppel.” ’ ” Fountain v. Ingram, 926 So.2d 333, 335 (Ala.2005) (quoting ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140, 1145 (Ala.2003)). The second instance “ ‘ “arises from a third-party-beneficiary theory that affords the [nonsigna-tory] all the rights and benefits, as well as the burdens of that contract, including those associated with arbitration.” ’ ” Fountain, 926 So.2d at 335 (quoting ECS, Inc., 880 So.2d at 1145, quoting in turn Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000)).

1. Third-Party-Beneficiary Exception

“A party claiming to be a third-party beneficiary ‘must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.’ ” Stamey, 776 So.2d at 92 (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993)).

Atelier Homes, Inc., and Wallace have not contended, either in the trial court or on appeal, that they may enforce the arbitration clause under the third-party-beneficiary exception. Thus, the third-party-beneficiary exception provides no basis for concluding that Atelier Homes, Inc., and Wallace may compel arbitration of the Jenkinses’ claims against them. See Edwards v. Costner, 979 So.2d 757, 763-64 (Ala.2007) (“Edwards and Edwards Motors did not argue to the trial court or to this Court that Costner was an intended third-party beneficiary at the time the arbitration agreement was signed, nor is there evidence in the record indicating that that is the case. Thus, the third-party-beneficiary exception is not applicable.”).

2. Equitable Estoppel

Arbitration may be compelled “ ‘under the doctrine of “intertwining,” where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.’ ” Fountain, 926 So.2d at 335 (quoting Conseco Fin. Corp. v. Sharman, 828 So.2d 890, 893-94 (Ala.2001)). However, “[t]he concept of ‘intertwining’ necessarily presupposes that the signatory to the arbitration agreement is or will be engaged in an arbitration proceeding with the plaintiff.” Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540, 545 (Ala.2000); see also Auvil v. Johnson, 806 So.2d 343, 350 (Ala.2001) (“The doctrine of intertwining extends the benefits of an arbitration agreement to a nonsignatory only if the claims against him are intertwined with the claims against a signatory who is going to arbitration.”); Sharman, 828 So.2d at 893-94 (“[T]he doctrine of intertwining does not apply when there is no ongoing arbitration between the parties to the arbitration agreement.” (citing Kennedy, 774 So.2d at 545)); Carriage Homes v. Channell, 777 So.2d 83, 86 (Ala.2000) (“This present case is like Kennedy in that there is no pending or contemplated arbitration proceeding in which the doctrine of equitable estoppel could allow [the nonsignatory] to compel the [plaintiffs] to arbitrate their claims against it.” (citing Ex parte Roberson, 749 So.2d 441 (Ala.1999) (Lyons, J., concurring as to the section entitled “Agreement to Arbitrate”))). “In other words, ‘intertwining’ requires at least two threads to weave together — one cannot intertwine a single thread.” Kennedy, 774 So.2d at 545.

The doctrine of intertwining does not apply in this case. Here, the signatory to the contract, Atelier Custom Homes, L.L.C., was not sued by the Jenkinses; as a result, there neither is nor will there be an arbitration proceeding involving Atelier Custom Homes, L.L.C., and the Jenkinses. In other words, because Atelier Custom Homes, L.L.C., is not a party to the underlying litigation, there will be no arbitration proceeding in which the doctrine of equitable estoppel could allow Atelier Homes, Inc., and Wallace to compel the Jenkinses to arbitrate their claims against them.

V. Conclusion

As noted, Atelier Homes, Inc., and Wallace cannot enforce the arbitration clause under the third-party-beneficiary exception. Furthermore, Atelier Homes, Inc., and Wallace cannot enforce the arbitration clause under the doctrine of equitable es-toppel; thus, we conclude that Atelier Homes, Inc., and Wallace lack standing to enforce the arbitration clause. Cf. Anvil, 806 So.2d at 350 (affirming the trial court’s denial of the motion to compel arbitration, stating that, “[b]ecause the signatory ... is not going to arbitration, the claims against it do not provide a basis for intertwining” and, thus, concluding that “Auvil[, as a nonsignatory to the arbitration agreement,] was without standing to enforce the arbitration agreement.”). Accordingly, the trial court’s order compelling arbitration of the Jenkinses’ claims against Atelier Homes, Inc., and Wallace is due to be reversed.

For the reasons stated above, we reverse the trial court’s order compelling arbitration of the Jenkinses’ claims against Atelier Homes, Inc., and Wallace, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The trial court’s July 22, 2009, order applies only to the Jenkinses' claims against Atelier Homes, Inc., and Wallace; the order states that ”[t]his matter comes before the Court on Defendants Atelier Homes, Inc., and Frank Wallace’s Motion to Compel Arbitration and Stay Proceedings." (Emphasis added.)

        . Barcenas construes the trial court’s August 20, 2009, order as allowing him to join Atelier Homes, Inc., and Wallace's motion to compel arbitration; he has filed a brief with this Court, asserting that, ”[i]n affirming its Order of July 22, 2009, the Circuit Court expressly ordered the lawsuit in its entirety arbitrated.” Barcenas’s brief, p. 2. However, as noted, the trial court’s August 20, 2009, order “reaffirms its Order of July 22, 2009” (emphasis added); that order applies only to the motion to compel arbitration filed by Atelier Homes, Inc., and Wallace. See supra note 1. Thus, because there is no order compelling arbitration of the Jenkinses’ claims against Barce-nas, we will consider no arguments regarding the Jenkinses’ claims against Barcenas.

      . In their response to the motion to compel arbitration, the Jenkinses contended that the motion should be denied because, among other reasons, "[t]here is no written agreement exhibiting the [Jenkinses’] waiver of their right to a trial by jury.” However, the Jen-kinses failed to present any evidence supporting that argument. Rather, the only evidence the Jenkinses presented in their response was the affidavit of J.R. Carden, who is "the Executive Director and Custodian of Records of the Home Builders Licensure Board,” and a copy of a building permit issued by City of Huntsville to Atelier Homes, Inc., granting permission to Atelier Homes, Inc., to construct a single-family structure for the Jen-kinses. Therefore, that argument provides no basis for reversing the trial court’s judgment. See Johnson, 1 So.3d at 963 (" '[0]nce the moving party has supported his or her motion to compel arbitration, the nonmovant then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case.' ” (quoting McKay Bldg. Co. v. Juliano, 949 So.2d 882, 884 (Ala.2006), citing in turn Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003) (emphasis added))); see also Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (" ‘[MJotions and arguments of counsel are not evidence.' " (quoting Williams v. Alezo Nobel Chemicals, Inc., 999 S.W.2d 836, 845 (Tex.App.1999))).

      . As noted, Adam Wallace testified in his affidavit that the contract was "between Atelier Custom Homes, L.L.C., and the Jenkins [sic]." (Emphasis added.)

      . The Jenkinses also contend that, even if this Court determines that the arbitration clause is enforceable by either of the parties moving to compel arbitration, the trial court’s order granting the motion should nonetheless be reversed because, the Jenkinses claim, Atelier Homes, Inc., and Wallace "were not licensed to build a residence for profit.” The Jenkins-es' brief, p. 22. However, because we have already concluded that Atelier Homes, Inc., and Wallace may not enforce the arbitration clause, we pretermit as unnecessary any discussion of this argument.


author: THOMPSON, Presiding Judge.

text:
    MONROE COUNTY BOARD OF EDUCATION v. K.B., T.P., C.W., and R.H.
    2090746.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.
    Rehearing Denied Nov. 12, 2010.

      J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville; and Alicia Fritz Bennett of Boardraan, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellant.
    Jack B. Weaver and Robert C. King, Monroeville, for appellee R.H.
   THOMPSON, Presiding Judge.

The Monroe County Board of Education (“the Board”) appeals from a judgment of the Monroe Juvenile Court (“the juvenile court”) reversing the Board’s finding that K.B., T.P., C.W., and R.H. violated the Board’s policy on alcohol use at school or at school-sponsored activities or functions. The juvenile court also found that the punishment imposed for the violation was unreasonable in light of the facts of this case. Because K.B., T.P., and C.W. have already graduated, this dispute is moot as to those three students. Accordingly, we dismiss the appeal as to K.B., T.P., and C.W., and, in this opinion, we shall discuss the issues only as they pertain to R.H.

Documentary evidence included in the record on appeal tends to show the following. On March 21, 2010, Excel High School (“the school”) held its prom. Faculty members at the school smelled alcohol among students in the prom “line up,” and several students, including R.H., were asked whether they had been drinking. An assistant principal administered Breathalyzer tests to R.H., who was a junior at the school at the time. The test results measured blood-alcohol levels of .001 and .006. The Board has never disputed that R.H. did not have alcohol in his possession at the prom.

On March 23, 2010, Kevin York, the principal of the school, suspended R.H. for five days for being under the influence of alcohol at the prom. On March 26, 2010, the Administrative Discipline Committee of the Board held what it called a “fact-finding” hearing. R.H. and his attorney were present at the hearing. On March 29, 2010, the Board notified R.H.’s mother of its findings by letter. In the letter, the Board stated that there was no evidence indicating that R.H. was in possession of alcohol at the prom and that he “was not under the influence of alcohol to the extent that he would have been guilty of the criminal offenses of driving under the influence, or public intoxication.” The Board went on to find, however, that R.H. had consumed alcohol on the day of the prom “in anticipation of attending the Prom, and by doing so [R.H.] used alcohol at a school function, in violation of the Board’s alcohol policy.” The school’s handbook for the 2009-2010 school year included the Board’s alcohol policy, which provided that “no student shall carry, possess, or use drugs, drug paraphernalia, or alcohol” at a school function.

Based upon its findings, the Board upheld the suspension. In addition, the Board assigned R.H. to the C.P. Carmichael Alternative School for one year, subject to a review at the end of a semester or the equivalent of a semester, i.e., three six-week periods.

R.H. appealed the Board’s decision to the juvenile court. On April 8, 2010, the juvenile court held a hearing. The parties stipulated to the evidence; however, the specific stipulations are not included in the record on appeal. Upon consideration of the evidence and arguments of the parties’ attorneys, the juvenile court entered a judgment finding that the word “use” as set out in the Board’s policy “means to ingest alcohol while on school property or at any other school function.” Because there was no evidence indicating that R.H. “used” alcohol on school property or at a school function, the juvenile court ruled that he did not violate the Board’s policy and ordered him reinstated in the school immediately. The juvenile court further found that the Board’s alcohol policy was silent on the issue of punishment for violations of the prohibition of using alcohol at school or at school functions, and it held that the punishment that the Board had imposed on R.H. in this instance was unreasonable in light of the facts. The Board appeals.

In Ex parte Board of School Commissioners of Mobile County, 824 So.2d 759, 761 (Ala.2001), our supreme court set forth the standard of review applicable in appeals of decisions from local boards of education as follows.

“A board of education must comply with the policies it adopts. Belcher v. Jefferson County Bd. of Educ., 474 So.2d 1068, 1068 (Ala.1985). ‘This court and the trial court must give substantial deference to an agency’s interpretation of its rules and regulations. Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 863 (Ala.Civ.App.1985).’ Mobile County Pers. Bd. v. Tillman, 751 So.2d 517, 518 (Ala.Civ.App.1999). ‘It is well settled that “an agency’s interpretation of its own regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.” Ferlisi v. Alabama Medicaid Agency, 481 So.2d 400, 408 (Ala.Civ.App.1985).’ State Pers. Bd. v. Wallace, 682 So.2d 1857, 1359 (Ala.Civ.App.1996). An agency’s interpretation of its own policy is controlling unless it is plainly erroneous. Brunson Constr. & Envtl. Servs., Inc. v. City of Prichard, 664 So.2d 885, 890 (Ala.1995). See also Peacock v. Houston County Bd. of Educ., 653 So.2d 308, 309 (Ala.Civ.App.1994).”

Trumping that deferential standard, however, is the constitutional requirement of due process. “[W]hen the basic constitutional rights of students are at issue, this court cannot avoid considering these constitutional rights when they are infringed by board action. The authority vested in school boards and officials to maintain order and discipline in school must be exercised within constitutional bounds.” Dothan City Bd. of Educ. v. V.M.H., 660 So.2d 1328, 1330 (Ala.Civ.App.1995).

Due process of law requires fair notice that one’s conduct is subject to a law or regulation. Courts have found that the right to due process is violated “ ‘when a statute or regulation is unduly vague, unreasonable, or overbroad.’” Brooks v. Alabama State Bar, 574 So.2d 33, 34 (Ala.1990) (quoting Ross Neely Express, Inc. v. Alabama Dep’t of Envtl. Mgmt., 437 So.2d 82, 84 (Ala.1983)). Thus, rules and regulations governing the conduct of students “must be sufficiently definite to provide notice to reasonable students that they must conform their conduct to its requirements.” 67B Am.Jur.2d Schools § 285 (2010) and cases cited therein.

In Dothan City Board of Education, this court affirmed the trial court’s judgment holding that a provision in a school’s Code of Student Conduct forbidding the possession “ ‘of any item which may be conceivably used as a weapon’ ” was unconstitutionally vague, overbroad, and ambiguous. 660 So.2d at 1328. This court determined that the provision did “not give proper notice about what conduct could be an offense, and, therefore, it [was] vague on its face.” Id. at 1329.

The student involved in Dothan City Board of Education had left a Daisy Power Line 990 rifle, an air gun, in his automobile while the automobile was parked on school grounds. The rifle was unloaded, and a police officer testified that, without ammunition, the rifle could not have been fired. We held that the police officer’s testimony “at least poses the question whether the student should have known that his possession of [the rifle] would trigger the penalties provided by the Code [of Student Conduct].” Id. Thus, we found that the provision at issue was ambiguous and vague and, therefore, failed constitutional muster. Id.

In this case, the provision of the student handbook at issue provided that “no student shall carry, possess, or use drugs, drug paraphernalia, or alcohol” at a school function. The Board interpreted its policy to include a student who has used alcohol shortly before attending school or a school-sponsored function or who is under the influence of alcohol while at school or at a school-sponsored function. In its judgment, however, the juvenile court determined that “use of alcohol” means actually ingesting alcohol at school or a school-sponsored function.

As mentioned, the evidence was undisputed that R.H. was not in possession of alcohol at the prom; there is no evidence indicating that he drank alcohol while at the prom, and in its findings of fact the Board specifically stated that R.H. “was not under the influence of alcohol to the extent that he would have been guilty of the criminal offenses of driving under the influence, or public intoxication.” We note that, in the past, the Board had a policy in place that specifically prohibited being under the influence of alcohol while at school or at a school function, but similar language was not included in the policy in place at the time of the events made the basis of this action. We believe that, like the provision in Dothan City Board of Education, the provision at issue here poses the question whether R.H. should have known that drinking alcohol before arriving at the prom constituted “use” of alcohol at a school function, which would trigger disciplinary measures, including suspension and placement in an alternative school. Therefore, we conclude that the policy at issue was unconstitutionally ambiguous and vague.

Because we hold that R.H. was not afforded due process, the juvenile court’s judgment ordering that he be reinstated at the school is due to be affirmed. Because we find that the provision under which R.H. was penalized was unconstitutional, we pretermit discussion of the appropriateness of the discipline imposed in this case.

The judgment of the juvenile court is due to be affirmed as to R.H. The appeal is dismissed as to K.B., T.P., and C.W.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . R.H. argues that this court must accept the juvenile court’s definition of "use” because the record on appeal does not include the evidence the juvenile court considered in making its finding. Therefore, R.H. says, pursuant to Red Mountain Construction Co. v. Neely, 627 So.2d 931 (Ala.Civ.App.1992), this court must presume that there was sufficient evidence to support that finding. However, the question at issue, i.e., whether the Board’s interpretation of its own policy was clearly erroneous, is a question of law, not a question of fact. Therefore, the presumption set forth in Neely does not apply. The applicable standard is the standard set forth in Ex parte Board of School Commissioners of Mobile County, 824 So.2d 759, 761 (Ala.2001), which was quoted earlier in this opinion.


author: THOMAS, Judge.

text:
    LaDerle FAULK v. Reginald RHODES et al.
    2090707.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.

      Charles N. Reese, Daleville, for appellant.
    Robert I. Hinson of Ludlum and Gil, LLC, Dothan, for appellees Reginald Rhodes and R.A.R. Properties, L.L.C.
   THOMAS, Judge.

LaDerle Faulk appeals from a judgment of the Houston Circuit Court awarding him $2,500 in damages resulting from a failed commercial-real-estate transaction. We reverse and remand with instructions.

Facts and Procedural History

Faulk owned a parcel of commercial property containing a building in Dothan (“the property”). Faulk operated a business known as Mr. J’s Steakhouse on the property. In 2001, David Alexander approached Faulk with a prospective tenant who was interested in leasing the property — Wayne Blackmon. After Faulk declined to lease the property to Blackmon, Alexander then asked whether Faulk would be interested in selling the property. Thereafter, on May 15, 2001, Faulk entered into a 90-day exclusive listing agreement with Alexander.

On August 15, 2001, Faulk and Reginald Rhodes entered into a contract (“the sales agreement”), which provided that Rhodes would purchase the property for $630,000. Alexander prepared the sales agreement at Rhodes’s direction and with Faulk’s approval. Among other terms, the sales agreement contained a contingency provision allowing Rhodes to cancel his purchase of the property without payment of damages if he could not locate a qualified tenant for the property and he notified Faulk of that fact in writing within 30 days. The contingency provision also provided for liquidated damages if Rhodes failed to notify Faulk of the failure of the contingency. The provision stated:

“Should [Rhodes] not be able to secure a qualified tenant and enter into an acceptable written lease agreement therewith, within thirty (30) days after [Faulk] shall have executed this sales agreement, [Rhodes’s] earnest money shall, upon demand, be returned and [the sales agreement] shall become null and void. Should [Rhodes] fail to notify [Faulk] in writing that this contingency has not been met, if such shall be the case, within said thirty (30) days of the date [Faulk] shall have executed this agreement, [Rhodes’s] earnest money shall be forfeited as liquidated damages and divided equally, one-half to [Faulk] and one-half to [Alexander], Determination and/or qualification of tenant shall be at the sole discretion of [Rhodes].”

The sales agreement also contained a separate liquidated-damages clause, which stated: “[Rhodes’s] earnest money shall be forfeited as liquidated damages and divided equally, one-half to [Faulk] and one-half to [Alexander], should [Rhodes] fail, for any reason, to abide in the timely manner prescribed by the terms and conditions stated herein to which he has agreed.” Alexander proposed to Rhodes that he lease the property to Blackmon. Black-mon desired to take possession of the property on September 1, 2001, a date before Rhodes and Faulk were scheduled to close the sale on the property. Rhodes testified that he informed Blackmon that Blackmon needed to discuss the issue with Faulk because Rhodes would not own the property on the date that Blackmon desired to take possession as a tenant; Faulk declined to enter into a lease with Black-mon. On August 31, 2001, Rhodes and Blackmon entered into a lease for the property. On the same day, Rhodes and Faulk entered into a writing that was titled as an “addendum” to the sales agreement. The addendum provided:

“Buyer has entered into a lease agreement with a third party and has received the first month’s rent in the amount of $5,500.00. Buyer and seller mutually agree that if the sale of the property does not close on or before September 1, 2001, the seller is entitled to a pro-rated amount of September rent until the day of closing.”

The addendum also changed the purchasing party from Rhodes to R.A.R. Properties, L.L.C., and allocated the purchase price of $630,000 as $600,000 for the purchase of the property and $30,000 for a 5-year noncompete agreement. The addendum was signed by Rhodes and Faulk.

On September 1, 2001, Blackmon took possession of the property and began operating his restaurant. Blackmon’s initial rent check to Rhodes, for $13,000, was returned by the bank for insufficient funds; the bank notified Rhodes of this fact on September 14, 2001. That same day, which was the 30th day after Rhodes and Faulk had entered into the sales agreement, Rhodes orally notified Alexander that Rhodes had determined that Blackmon was not a qualified tenant and that Rhodes was declining to purchase the property. Alexander subsequently returned Rhodes’s earnest money. Black-mon did not vacate the property until October 21, 2001; he did not make any rent payments. Following the failure of the sale of the property, Faulk was unable to make his mortgage payments on the property; the bank foreclosed on the property the following year. Faulk later declared bankruptcy.

We summarized the procedural history of this case in Faulk v. Rhodes, 43 So.3d 624 (Ala.Civ.App.2010):

“On July 18, 2002, LaDerle Faulk sued Reginald Rhodes, The Fletcher Moore Company, A.L. Trull, Rhodes Properties, LLC, and T. Graham Rhodes Properties, LLC.1 In Faulk’s complaint, he alleged a breach-of-contract claim and a claim seeking specific performance arising out of a failed commercial-real-estate transaction. Faulk amended his complaint in August 2002 to add a claim seeking moneys allegedly owed to Faulk according to the terms of a commercial-lease agreement entered into between Rhodes and Wayne Black-mon. On September 20, 2002, Rhodes moved the trial court, pursuant to Rules 19 and 20, Ala. R. Civ. P., to add Black-mon and William Hampton d/b/a Hampton Financial as necessary parties to the action. Rhodes also claimed that he had been named as a defendant in Faulk’s lawsuit because of Blackmon’s and Hampton’s failure to pay the amounts owed to Rhodes under a commercial lease. Rhodes filed in that same motion a cross-claim against Blackmon and Hampton alleging breach of contract for their breach of the lease. The trial court granted Rhodes’s motion.
“In June 2008, Faulk moved the trial court, pursuant to Rule 15(b), Ala. R. Civ. P., to add R.A.R. Properties, LLC, as a defendant to the action and to add to his complaint a breach-of-contract claim against it.2 The trial court granted Faulk’s motion.
“The trial court held a hearing on March 19, 2009, at which the trial court heard evidence presented ore tenus. Following the hearing, the trial court entered a judgment awarding Faulk $2,500 in damages on his breach-of-contract claim against Rhodes and R.A.R. Properties, LLC.3 The judgment did not address Faulk’s claim against Rhodes Properties, LLC, or Rhodes’s cross-claim against Blackmon and Hampton. Faulk filed a purported post-judgment motion pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied.
" 1 The trial court entered a summary judgment in favor of A.L. Trull on all Faulk’s claims. T. Graham Rhodes Properties, LLC, was dismissed from the case by agreement of the parties. Faulk entered into a pro tanto settlement agreement with The Fletcher Moore Company, settling all Faulk’s claims against it. The claims against those defendants are not at issue on appeal.
" 2 R.A.R. Properties, LLC, is wholly owned by Rhodes.
" 3 At trial, Faulk orally abandoned his specific-performance claim, stating that the claim had become moot because the property in question had been foreclosed on by the mortgage holder.”

43 So.3d at 624-25.

Faulk appealed to this court. We dismissed Faulk’s appeal, holding that the trial court’s judgment was not final because it had not disposed of Faulk’s claim against Rhodes Properties, LLC, or Rhodes’s cross-claim against Blackmon and Hampton. Id. Subsequently, the trial court entered a judgment denying Faulk’s claim against Rhodes Properties, LLC, and denying Rhodes’s cross-claim against Blackmon and Hampton. Faulk appealed the trial court’s judgment to this court.

Issues

Faulk raises two issues in his appeal: (1) whether Rhodes was required to fulfill the terms of the sales agreement by closing on the property and (2) whether the liquidated-damages clause limited Faulk’s recovery for breach of contract.

Standard of Review

‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 448 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 438 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

Faulk first argues that Rhodes was required to fulfill his obligation under the sales agreement to purchase the property because, Faulk says, Rhodes entered into a lease agreement with Blackmon, thus qualifying Blackmon as a tenant. However, the question whether Rhodes breached the sales agreement is not at issue in this case. Rhodes admitted at trial that he had breached the sales agreement because he did not give Faulk written notice that he had not secured a qualified tenant, as required by the sales agreement. We also note that Faulk abandoned his specific-performance claim at trial. Thus, the only issue for this court to consider on appeal is whether the trial court’s award of damages was proper.

Faulk next argues that the liquidated-damages clause did not limit his recovery for Rhodes’s breach of the sales agreement because, Faulk says, the liquidated-damages clause constituted a penalty and, thus, was void.

“Th[e Supreme] Court set forth the criteria for assessing the validity of liquidated damages clauses in Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So.2d 987 (Ala.1987):
“Tt is true in Alabama that, because penalty provisions are void as against public policy, “Courts ... are disposed to lean against any interpretation of a contract which will make the provision one for liquidated damages and, in all cases of doubtful intention, will pronounce the stipulated sum a penalty.” Cook v. Brown, 408 So.2d 143, 144 (Ala.Civ.App.1981); see also, Keeble v. Keeble, 85 Ala. 552, 5 So. 149 (1888). In Alabama, liquidated damages are a sum to be paid in lieu of performance, Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706 (1940), while a penalty is characterized as a security for the performance of the agreement or as a punishment for default. Standard Tilton Milling Co. v. Toole, 223 Ala. 450, 137 So. 13 (1931). The courts generally identify three criteria by which a valid liquidated damages clause may be distinguished from a penalty. First, the injury caused by the breach must be difficult or impossible to accurately estimate; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-breach [estimate] of the probable loss. See, C. Gamble and D. Corley, Alabama Law of Damages, § 5-4 (1982). Determining whether a liquidated damages provision is valid is a question of law to be determined by the trial court based on the facts of each case. Cook v. Brown, 408 So.2d 143 (Ala.Civ.App.1981).’
514 So.2d at 990.”

Sutton v. Epperson, 631 So.2d 832, 835 (Ala.1993).

In this case, the injury caused by the breach was difficult to accurately estimate at the time that Faulk and Rhodes entered into the sales agreement. The damages that Faulk claimed had been caused by Rhodes’s breach of the sales agreement included: that he could not make his mortgage payments on the property, resulting in the bank later foreclosing on the property; that the Internal Revenue Service and the State of Alabama filed liens against Faulk for unpaid taxes; and that Faulk was forced to file bankruptcy. The wide-ranging injuries and damages claimed by Faulk for Rhodes’s breach of the sales agreement would have been difficult to estimate or foresee at the time of the formation of the sales agreement. In addition, we find no evidence in the record that would indicate that the liquidated-damages clause was designed to act as a penalty. A penalty has been defined as “a security for performance designed to punish one party for breach of contract.” Milton Constr. Co. v. State Highway Dep’t, 568 So.2d 784, 790 (Ala.1990). We see no evidence in the record that the liquidated-damages clause in this case was designed to secure performance by threat of punishment for breach of the sales agreement. Finally, we find that the amount of liquidated damages provided for in the sales agreement — $5,000—was a reasonable pre-breach estimate of Faulk’s probable loss. Although Faulk claims extensive damages for a multitude of injuries resulting from Rhodes’s failure to complete the purchase of the property, we cannot agree that, absent a determination by the trial court that those damages were in the specific contemplation of the parties at the time that they entered into the agreement, damages arising from potential tax liens, mortgage foreclosures, and bankruptcy filings were damages that were reasonable for the parties to have estimated before the breach. Therefore, we hold that the liquidated-damages clause was valid.

Like the liquidated-damages clause at issue in Sutton, the liquidated-damages clause in this case is being attacked by the plaintiff, the nonbreaching party, who wishes to recover more than the amount allowed by the liquidated-damages clause. In Sutton, our supreme court recognized the unusual nature of a case involving a plaintiffs seeking to escape the enforcement of a liquidated-damage clause. Sutton, 631 So.2d at 834. The Sutton court noted:

“In American District Telegraph Co. of Alabama v. Roberts & Son, Inc., 219 Ala. 595, 122 So. 837 (1929), this Court observed about a similar contractual provision:
“ ‘As we view this clause, it is but a limitation of the amount recoverable in case of a breach of the contract. It is unlike those contracts or clauses construed by the courts as being invalid because providing a penalty though designated as liquidated damages.
“‘The contract does not penalize the defendant for a failure to perform, and it only restricts the plaintiff as to its recovery in case of a breach by the defendant, and does not attempt to penalize or fix the damages against the plaintiff in case of a breach by it. It deals only with a breach by the defendant, and in no sense penalizes it for a breach_ Conceding, however, that, by limiting the amount of recoverable damages, it operates as a burden or hardship on the plaintiff, still we are not at liberty ... to make a new contract for the parties or to strike ... a clause well understood and evidently within the intention of the parties.’
219 Ala. at 598,122 So. at 889.”

Id. at 886. We see no reason to rewrite the sales agreement in this case, which was freely entered into by both parties, to allow Faulk to escape the operation of the liquidated-damages clause with regard to his claims of damages resulting from Rhodes’s breach of that agreement.

However, the liquidated-damages clause does not foreclose Faulk from recovering the amount of rent due for the property for the month of September under the addendum to the sales agreement. One of the provisions in the addendum states that Faulk is entitled to the rents due from Blackmon for the month of September — from September 1, 2001, until the closing date. Rhodes never closed on the property, and Blackmon was a tenant for the entire month of September, thus entitling Faulk to receive the $5,500 in rent due from Blackmon for that month. Rhodes’s obligation to pay Faulk rent for the property for the month of September is separate and apart from any obligation to close on the property. Even absent a breach by Rhodes of his obligation to purchase the property, Rhodes still would have had an obligation to pay Faulk a prorated share of the rent due for the property for September. Thus, the liquidated-damages clause does not prevent Faulk from recovering the $5,500 in rent due for the month of September.

Accordingly, we reverse the judgment of the trial court and remand the cause to that court with instructions for the trial court to award Faulk $8,000 in damages— $5,500 in damages for the unpaid rent payment in addition to the $2,500 the trial court had awarded Faulk under the liquidated-damages clause.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Rhodes signed the lease in his capacity as the sole member of R.A.R. Properties, L.L.C. The lease also listed T.G.R. Properties, L.L.C., and Dick's Rentals, L.L.C., as lessors.

      . Rhodes signed the addendum in his capacity as the sole member of R.A.R. Properties, L.L.C.

      . On appeal, Faulk also argues that he should have been awarded interest on the amount awarded under the liquidated-damages clause. However, Faulk did not first present this argument to the trial court; thus, we will not consider it. See DeFriece v. McCorquo-dale, 998 So.2d 465, 472 (Ala.2008) (holding that a party "cannot now, in [an] appellate court, raise for the first time claims that were never made in the trial court”).


text:
    Rhonda Sue STEWART v. Marlon Luke STEWART.
    2090218.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.

      Margaret Y. Brown, Auburn, for appellant.
    Dianne James Davis, Alexander City, for appellee.
   THOMAS, Judge.

Rhonda Sue Stewart (“the wife”) appeals from a judgment of the Randolph Circuit Court divorcing her from Marlon Luke Stewart (“the husband”) and dividing the parties’ property, awarding the parties joint legal and physical custody of the parties’ minor daughter and granting the husband specific custodial periods, and awarding the wife child support.

The parties were married on May 18, 1995. The parties have one minor child — a daughter who was born on September 27, 1997 (“the daughter”). The wife had two children from a previous marriage whom the husband adopted, Brandon and Amanda; neither Brandon nor Amanda is a minor.

At the time the parties married, the husband owned and operated an automobile-repair shop named Quality Repair Service (“the repair shop”). The husband sold the repair shop on October 20, 2006, to Brandon and the parties’ nephew, Dustin Messer, for $245,000 — Brandon and Messer paid $50,000 in cash, which the husband used to pay off certain outstanding debts associated with the repair shop. The husband financed the remaining $195,000 of the purchase price for Brandon and Messer. Brandon and Messer later sold the repair shop at an auction for $150,000. This amount was not enough to satisfy the husband’s remaining debt on the repair shop that he owed to Small Town Bank. The husband used an 8.5-acre tract of land and a 5-acre tract of land, both of which he had purchased from his grandfather, as collateral to secure the remaining debt; as of the date of the trial, the husband owed Small Town Bank $46,000. After selling the repair shop, the husband continued to work at the repair shop making $250 per week. In addition to working at the repair shop full time, the husband also held mortgages on three unidentified properties from which he received payments totaling $591.00 per month; all three of the mortgages will be paid off in the next three to five years. According to the Child-Support-Obligation-Income-StatemenVAffidavit that the husband filed with the trial court, the husband’s monthly income was $1,674.44.

Before building and opening the repair shop, the husband worked as a welder and also had a license to operate heavy machinery. He testified that he did not know if he could make more than $250 per week as a welder, but he said that being close to the daughter was more important to him than any extra money he could make. The husband also testified that his heavy-machinery license had expired.

There was evidence indicating that as recently as 2007 the husband had assets totaling approximately $958,000. However, the husband’s undisputed testimony was that nearly all of those assets had been sold. The husband’s 2007 income-tax return indicates that his adjusted gross income in 2007 was $38,680.

The wife testified that she had worked as a nurse before the parties’ marriage but that she had not been employed when the parties married. She had worked intermittently as a nurse for various employers throughout the early years of the parties’ marriage. The wife stated that she had worked full time the three years immediately preceding the parties’ separation for Taylor’s Retirement in Roanoke. This was the longest period the wife had worked during the course of the parties’ marriage. At trial, the wife stated that she is a licensed practical nurse and that she worked for Amedysis Home Health. She had begun working for Amedysis Home Health in April 2008. As of the time of trial, the wife earned $29,000 annually and paid $202 per month for health-insurance coverage for her and the daughter.

During the course of their marriage, the parties lived in a double-wide modular home on three acres of land (“the marital residence”). The parties bought-the marital residence with a mortgage loan, $36,000 of which remains outstanding; that specific property had been appraised for $110,000. Pursuant to a pendente lite order, the wife was responsible for the payment of the mortgage while she resided in the marital residence. However, the wife testified that at the time of the trial she was two payments and two “penalty payments” behind on the mortgage. The wife testified that she had not had the money to pay the mortgage payments.

At the time the divorce judgment was entered, the parties owned two vehicles, a 1998 Ford Explorer sport-utility vehicle, which was inoperable at the time of the trial, and a 1999 Ford truck. After the parties separated in October 2007, the wife financed the purchase of a 2009 Chevrolet Impala automobile; approximately $21,000 of indebtedness remains on the wife’s automobile loan. The wife requested that the trial court award her the Impala, subject to the outstanding debt on that vehicle.

Before the parties’ marriage, the husband had inherited 31 acres of land, subject to a life estate held by the husband’s mother, from his father. During the course of the parties’ marriage, the parties had planned to sell the marital residence and live in a single-wide trailer on the 31-acre tract of land while building a house on the 31-acre tract of land. The parties purchased a single-wide trailer with a mortgage loan, $30,000 of which remains outstanding, and placed it on the 31-acre tract of land. The parties never built a home on the 31-acre tract of land.

The husband’s mother resides in a home on the 31-acre tract of land. The wife testified that during the course of their marriage the parties had spent money to improve the 31-acre tract of land. Specifically, the wife testified, a fence had been built around the land and the husband’s mother’s home “had new plumbing, new top, cabinets put in it, new appliances” and had been painted “a couple of times.” The wife also testified that improvements had been made to a lake located on the 31-acre tract of land during the course of the parties’ marriage. The wife testified that the husband had told her that he had paid for the improvements. The husband denied having spent the parties’ money on improvements to the 31-acre tract of land. The husband testified that the new roof put on the husband’s mother’s house had been paid for by Alfa Insurance. The husband also testified that his brother-in-law had paid for the fence because he kept cattle on the 31-acre tract of land.

The wife testified that, during the course of the marriage, she had had numerous credit accounts totaling $36,640.34, all of which had a balance of zero at the time of the trial. The husband testified that he had borrowed approximately $60,000, secured by his interest in the 31-acre tract of land, to pay off the wife’s credit-card debt and other bills that the parties had been behind on; at the time of the trial, approximately $58,000 of indebtedness remained outstanding on that loan.

In 2000, Harold Gains gave the daughter $5,000 on her third birthday for the purpose of starting a college fund for the daughter’s college education. Gains and the husband had subsequently continued to deposit money into the daughter’s college fund. The wife admitted that she had withdrawn money from the daughter’s college fund between 2000 and August 16, 2007; the account has since been closed. The wife testified that she had withdrawn money from the daughter’s college fund in order to buy groceries. The wife had also withdrawn $2,000 from the college fund in order to purchase living-room furniture; the wife testified that the husband had consented to those withdrawals. The wife denied that she had “depleted [the daughter’s] college fund.” The husband testified that he had taken $2,000 from the daughter’s college fund in order to purchase an engine but that he had put $2,000 back into the account.

On October 29, 2007, the wife sued the husband for a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage. The wife also sought pendente lite relief, requesting sole possession of the marital residence and sole custody of the daughter. On November 14, 2007, the husband filed an answer and a counterclaim requesting custody of the daughter.

Following a pendente lite hearing held on January 10, 2008, the trial court awarded the wife pendente lite physical and legal custody of the daughter, granted the husband visitation, and ordered the husband to pay child support in the amount of $200 per month. The trial court further awarded the wife exclusive possession of the marital residence pending the resolution of the divorce action and ordered her to be responsible for the mortgage on the marital residence.

After an ore tenus hearing on January 13, 2009, the trial court entered a judgment on July 8, 2009, divorcing the parties on the grounds of incompatibility of temperament and an irretrievable breakdown of the marriage. The divorce judgment, among other things, ordered that the marital property, which included the marital residence and the single-wide trailer, be sold and that the proceeds be used to pay off the parties’ debts in the following order: the debt on the marital property, totaling approximately $66,000; the $46,000 debt associated with the repair shop; the wife’s credit-card debt; and, lastly, reimbursement of the daughter’s college fund. The husband was awarded, as his separate estate, his interest in the 31-acre tract, as well as the 8.5-acre and the 5-acre tracts of land and the debt associated therewith, if any debt remained on the 8.5-acre and 5-acre tracts of land following the application of the proceeds from the sale of the marital property. The wife was awarded exclusive use of the marital residence and was ordered to pay the mortgage thereon until it sold. The judgment further awarded the parties joint legal and physical custody of the daughter, granting the husband specific custodial periods, and ordered the husband to pay $200 per month in child support. The judgment did not order either party to pay alimony. The judgment also awarded the wife the 2009 Chevrolet Impala and ordered her to be and responsible for the automobile loan she had used to purchase the vehicle and awarded the husband the parties’ 1998 Ford Explorer and 1999 Ford truck.

On August 7, 2009, the wife filed a motion for a new trial, which was denied by operation of law. The wife appealed.

The wife argues on appeal that the trial court exceeded its discretion by not awarding her periodic alimony or by not reserving the issue of periodic alimony for future consideration; by inequitably dividing the marital property; by failing to include certain property in the marital estate and by determining that the property was part of the husband’s separate estate because he had acquired it before the parties’ marriage; by not awarding her primary physical custody of the daughter; and by allegedly not considering the husband’s ability to earn income in calculating the amount of the husband’s child-support obligation.

We will first review the wife’s arguments concerning the trial court’s failure to award her periodic alimony and its division of the marital property. This court set forth the well established standard by which we review judgments based on ore tenus evidence in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ.App.2003):

“ ‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

873 So.2d at 254-55 (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)). Further,

“ ‘matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).... Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Id.’ ”

McCartney v. McCartney, 11 So.3d 213, 217 (Ala.Civ.App.2007) (quoting Henderson v. Henderson, 800 So.2d 595, 597 (Ala.Civ.App.2000)).

The trial court ordered that the proceeds from the sale of the marital property be applied first to the debt on the marital property. The remaining proceeds, if any, were to be applied to the $46,000 debt on the husband’s separate property, then to the wife’s credit-card debt, then to reimburse the daughter’s college fund, and lastly to be split equally between the parties. However, the undisputed evidence shows that the wife’s credit-card debt at the time of the trial was zero. Therefore, the husband was awarded $46,000 from the sale of the marital property as well as his separate property — the 31-acre tract, as well as the 8.5-acre and 5-acre tracts of land. The only benefit the wife might have received from the division of the marital property was an equal portion of any funds remaining after all the other obligations were satisfied.

The evidence concerning the value of the marital property indicated that the marital residence had been appraised for $110,000 and, based on the husband’s testimony, that the value of the single-wide trailer was approximately $7,000. The debt on the marital property totaled approximately $66,000, leaving approximately $51,000 to be applied to the $46,000 debt on the husband’s separate property. The remaining funds, approximately $5,000, were to be used to reimburse the daughter’s college fund. The evidence indicates that the amount to be reimbursed to the daughter’s college fund was at least $5,000. Essentially, the wife is left with nothing from the division of the marital property. Further, the wife was not awarded periodic alimony or an allowance from the husband’s separate property.

In Mayhann v. Mayhann, 820 So.2d 836 (Ala.Civ.App.2001), this court reversed a trial court’s divorce judgment because it failed to award the wife an allowance from the husband’s separate property, which this court determined was “ ‘used regularly for the common benefit of the parties during their marriage.’ ” Mayhann, 820 So.2d at 839 (quoting § 30-2-51(a), Ala. Code 1975). The trial court had awarded the wife “only $350 per month in periodic alimony for a period of two years, a 1991 Honda Accord automobile, a bedroom suite, a set of cookware, and a set of china.” Id. Based on our supreme court’s holding in Ex parte Durbin, 818 So.2d 404 (Ala.2001), this court held:

“The [Supreme] Court explained that, while the trial court may, at its discretion, award one spouse an allowance out of the other spouse’s separate property, it is not compelled to do so, even if the property was used for the common benefit of the marriage. Ex parte Durbin, 818 So.2d [404,] 408 [ (Ala.2001) ]. This court cannot reverse the trial court simply because it failed to award the wife an allowance out of the marital residence and rental house. However, we can consider whether the trial court abused its discretion in failing to do so.”

Mayhann, 820 So.2d at 839. This court determined that the trial court had exceeded its discretion, and we reversed the trial court’s judgment as to the division of property and award of alimony. This court also remanded the trial court’s judgment in order for the trial court to award the wife an equitable share of the marital estate.

In the case at hand, we conclude, based on the testimony at trial, that each of the three parcels of land composing the husband’s separate property were “used regularly for the common benefit of the parties during the marriage.” § 30-2-51(a), Ala.Code 1975. The husband used his interest in the 31-acre tract of land as collateral to borrow approximately $60,000 in order to pay off the wife’s credit-card debt and other bills the parties were behind on. Likewise, the husband used the 8.5-acre and 5-acre tracts of land in order to secure debt associated with the sale of the repair shop, which was used throughout the parties’ marriage as the primary source of income.

The trial court awarded the husband $46,000 from the marital property as well as his separate property; the wife was essentially awarded nothing. We hold that, just as in May harm, we must reverse the trial court’s judgment insofar as it divided the parties’ property and failed to award the wife periodic alimony, because of its inequity. On remand, the trial court should adjust the property division and alimony award as it considers appropriate in order to award the wife an equitable share of the parties’ marital estate.

Next, the wife argues that the trial court exceeded its discretion “in both the determination of child custody and the calculation of child support according to the Child Support guidelines” under Rule 32, Ala. R. Jud. Admin.

Although the wife generally alleges that the trial court exceeded its discretion in its determination of custody, the wife provides no legal authority to support her claim, and it is not this court’s function to create legal arguments for an appellant. Rule 28(a)(10), Ala. R.App. P.; see also Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“[Ajppellate courts do not, ‘based on undelineated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address only those issues properly presented and for which supporting authority has been cited.”).

The wife also argues that the trial court erred in failing to find the husband underemployed and, thereby, failing to impute more income to the husband. This court has held that

“[t]he trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992). See also Rule 32(B)(5), Ala. R. Jud. Admin.”

Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007).

At the time of trial, the husband was making $250 per week while employed at the repair shop. The husband testified that he could potentially earn more money if he traveled but that spending time with the daughter and his other family was more important to him. Before 1994, when the husband built and opened the repair shop, the husband was licensed to operate heavy machinery; his license has since expired. The husband had also worked as a welder, but he has not welded since before he opened the repair shop in 1994. The evidence supports the trial court’s decision to not impute to the husband a greater income than he was earning at the time of the trial.

Moreover, in order for the trial court to have determined that the husband was voluntarily underemployed, the wife had the burden of producing evidence demonstrating the husband’s potential employment income. See G.B. v. J.H., 915 So.2d 570, 575 (Ala.Civ.App.2005). The wife failed to provide any evidence indicating the husband’s alleged true earning potential. Therefore, for this reason as well, the trial court’s judgment as to this issue is not plainly and palpably wrong.

For the reasons stated above, we reverse the trial court’s judgment insofar as it divides the parties’ martial property, and we remand the cause for the trial court to make a more appropriate property division and to consider whether an award of alimony is warranted. In all other requests, we affirm the trial court’s judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MOORE, J., concurs in the result, without writing.

      . We note that the wife testified that all of her credit-card debt had been satisfied as of the time of trial.


author: BRYAN, Judge.

text:
    Ex parte M.J.W. (In re L.E. v. M.J.W.).
    2091171.
    Court of Civil Appeals of Alabama.
    Nov. 12, 2010.

      Michael J. Hoyt of Harbison & Hoyt, LLC, Silverhill, for petitioner.
    David A. Simon of Wills and Simon, Bay Minette, for respondent.
   BRYAN, Judge.

M.J.W. (“the mother”) petitions this court for a writ of mandamus directing the Baldwin Juvenile Court (“the juvenile court”) to enter a stay of the dependency proceeding involving the mother’s two children, V.R.E. and W.C.E. (hereinafter referred to collectively as “the children”). For the reasons set forth below, we deny the petition.

Facts and Procedural History

On October 26, 2009, W.E.E., the mother’s husband and the father of the children, died. According to W.E.E.’s death certificate, his death was caused by the “toxic effects of methadone” and was ruled an accident. On or about April 23, 2010, the mother was indicted by the grand jury of Baldwin County on two counts related to the death of W.E.E.: criminally negligent homicide, in violation of § 13A-6-4, Ala.Code 1975, and unlawful distribution of a controlled substance, in violation of § 13A-12-211, Ala. Code 1975.

On or about May 27, 2010, L.E., the paternal aunt of the children (“the paternal aunt”), filed a petition alleging that the mother was not a fit and proper person to have custody of the children because of the criminal charges pending against the mother, because the mother was not meeting the needs of the children, and because mother had allowed the children to live in “squalor.” The paternal aunt sought custody of the children. The mother subsequently filed a motion to stay the proceedings initiated by the paternal aunt. The mother argued that she was unable to properly defend the action initiated by the paternal aunt because it would require her to testify about circumstances related to the criminal charges that were pending against her in the Baldwin Circuit Court in violation her privilege against self-incrimination under the Fifth Amendment to the United States Constitution.

The juvenile court conducted a hearing on the mother’s motion to stay on August 30, 2010. On September 8, 2010, the juvenile court entered an order granting the mother’s motion to stay a final adjudication until after the mother’s criminal charges were resolved and denying the mother’s motion to stay “as to a hearing pendente lite in this matter.” On September 16, 2010, the mother filed a petition for a writ of mandamus with this court seeking an order compelling the juvenile court to stay the pendente lite proceeding until after the resolution of her criminal case.

Discussion

“A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala.2004). A writ of mandamus is ‘appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).... [I]t appears from the record that the trial court considered only the arguments presented by counsel_ Thus, our review of the facts — and the application of the law to those facts — is de novo. [Ex parte ] Ebbers, 871 So.2d [776,] 790 [ (Ala.2003) ]. However, the purpose of our review is to determine only if the petitioner has shown that the [juvenile] court exceeded the discretion accorded it in determining whether to grant the requested stay. Id.”

Ex parte Antonucci, 917 So.2d 825, 830 (Ala.2005).

In her petition, the mother argues that allowing the civil pendente lite proceeding to continue threatens her right against self-incrimination in the criminal proceeding pursuant to the Fifth Amendment to the United States Constitution, which states that a person shall not “be compelled in any criminal case to be a witness against himself.” She maintains that the juvenile court exceeded its discretion in denying her motion to stay the civil proceeding in its entirety and that she is entitled to a writ of mandamus compelling the juvenile court to vacate its order denying in part her motion to stay the civil proceeding. Our research has revealed no Alabama caselaw directly addressing the question whether a civil proceeding may continue in circumstances such as these, despite the threat to the mother’s Fifth Amendment rights, because of the substantial risk of harm to the children. However, in Ex parte Ebbers, 871 So.2d 776 (Ala.2003), our supreme court noted the following general principles of law that have emerged from caselaw regarding the ability of a party to stay a civil proceeding on Fifth Amendment grounds:

“1. A party is entitled to assert the Fifth Amendment privilege against self-incrimination ... so long as the party reasonably apprehends a risk of self-incrimination. A party need not be indicted to properly claim the Fifth Amendment privilege.
“2. When the Fifth Amendment privilege is asserted, it is for the trial court, not the party asserting the privilege, to determine whether the party’s apprehension of a risk of self-incrimination is reasonable and well-founded.
“3. The Fifth Amendment privilege applies in state-court civil proceedings, including depositions. A party cannot be compelled to testify or compelled to provide discovery in a civil proceeding while there is a parallel criminal action pending against the party.
“4. The United States Constitution does not automatically require a stay of civil proceedings pending the outcome of parallel criminal proceedings or potential parallel criminal proceedings.
“5. Whether to grant a stay to a party in a civil case who is the target of actual or threatened parallel criminal proceedings must be determined by weighing and balancing the interest of the party moving for the stay in postponing the civil action against the prejudice to the other party that might result from delay.
“7. A court has the discretion to stay civil proceedings ... in the face of parallel criminal proceedings against one of the parties when the interests of justice seem to require....
“8. ‘[The] state-court procedural considerations must at all times yield, however, to relevant federal constitutional principles.’ [Ex parte ] Baugh, 530 So.2d [238,] 242 [(Ala.1988)] (and as quoted in [Ex parte ] Coastal Training, 583 So.2d [979,] 981 [ (Ala.1991) ]). ‘[W]hen state concerns for judicial economy conflict with federal constitutional rights, the state concerns must give way.’ [Ex parte ] White, 551 So.2d [923,] 924 [ (Ata.1989) ]....
“11. A civil party’s Fifth Amendment right against self-incrimination cannot be adequately protected by requiring him simply to assert his right to remain silent when asked specific questions during a civil deposition; such an approach construes the Fifth Amendment too narrowly. ...”

871 So.2d at 787-88 (final emphasis added; some citations omitted).

The court in Ebbers then noted “various factors that might properly enter into a weighing and balancing analysis,” 871 So.2d at 789, including:

“1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.
“2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.
“3. The extent to which the defendant’s Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.
“4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.
“5. The interest of persons not parties to the civil litigation.
“6. The interest of the public in the pending civil and criminal litigation.
“7. The status of the criminal case, including whether the party moving for the stay has been indicted.
“8. The timing of the motion to stay.”

871 So.2d at 789-90 (emphasis added; citations omitted). The court in Ebbers recognized that some of the factors overlap to some degree and that not all the factors are applicable in every case. 871 So.2d at 790. Furthermore,

“[although [the supreme cjourt in Eb-bers identified numerous factors that a court may consider in the weighing and balancing analysis undertaken to determine whether to stay civil proceedings in the face of parallel criminal proceedings, in reviewing the trial court’s determination we look only to those factors actually argued before the trial court. Ebbers, 871 So.2d at 792.”

Ex parte Antonucci, 917 So.2d at 830.

At the hearing before the juvenile court, the mother argued that her interest in staying the civil proceeding to protect her Fifth Amendment right outweighs any prejudice the paternal aunt might suffer as a result of the stay. It is undisputed that the mother had been indicted by the grand jury of Baldwin County and that the criminal charges against the mother remained pending at the time the juvenile court ordered the civil proceeding to continue, albeit only on a pendente lite basis. Moreover, the paternal aunt, in her response to the mother’s petition for a writ of mandamus, conceded that “[tjhere is no dispute that a good portion of the case ... against the mother in this ... proceeding will involve facts relating to the criminal charges against [the mother].” Accordingly, we conclude that there is “significant overlap” between the civil proceeding and the criminal proceeding pending against the mother and that the mother’s testimony in the civil proceeding could be potentially incriminating in the criminal proceeding. Antonucci, 917 So.2d at 830. Thus, the mother “is entitled to assert the Fifth Amendment privilege against self-incrimination ... [because she] reasonably apprehends a risk of self-incrimination.” Ebbers, 871 So.2d at 787.

However, in determining whether the juvenile court exceeded its discretion in failing to grant a stay of the pendente lite proceeding, we must balance the mother’s interest in staying the civil proceeding in its entirety against the prejudice that might result by postponing the pendente lite proceeding until the mother’s criminal charges are resolved. Ebbers, 871 So.2d at 789-90. The mother argued that she would be just as unable to defend herself in a pendente lite hearing as she would be in a final hearing on the paternal aunt’s petition. On the other hand, the paternal aunt argued that the children, who are third parties to the civil action, needed protection and that it went against reason to allow the children to remain indefinitely in the mother’s care, where, she argued, their welfare was endangered, while the mother’s criminal case proceeded simply because the mother’s Fifth Amendment rights were threatened.

At the time the paternal aunt filed her petition in the juvenile court, the mother had custody of the children. Thus, the juvenile court was required to balance the mother’s interest in postponing the civil proceeding in its entirety against the prejudice that might result to the children, as third parties, if the entirety of the civil proceeding was postponed until after the resolution of the mother’s criminal charges. The paternal aunt’s petition contained allegations that, if true, would be sufficient to support a finding that there was a substantial risk of harm to the children if they remained in the custody of the mother. Thus, the risk of prejudice to the children if the juvenile court granted a stay of the entire civil proceeding was overwhelming.

Undoubtedly, the state’s interest in protecting the children of this state from a substantial risk of harm is not simply a “procedural consideration” that must automatically yield to the mother’s Fifth Amendment rights. See Ex parte Baugh, 530 So.2d 238, 242 (Ala.1988). Our supreme court has stated that “[i]t is the court’s duty to scrupulously guard and protect the interests of children,” Ex parte Farm, 810 So.2d 631, 638 (Ala.2001), and the stated purpose of the Alabama Juvenile Justice Act, codified at Ala.Code 1975, § 12-15-101 et seq., “is to facilitate the care [and] protection ... of children who come under the jurisdiction of the juvenile court.” § 12 — 15—101(a). Furthermore, this court has recognized that the state has a compelling interest in protecting its children from harm. See E.H.G. v. E.R.G., [Ms. 2071061, March 12, 2010] — So.3d - (Ala.Civ.App.2010). The juvenile court, by denying the mother’s motion to stay the proceeding so that pendente lite custody of the children could be determined, recognized that the children, as third parties to the dependency action, had a substantial interest in the matter and that, in such circumstances, the juvenile court was required to proceed in a manner so as to protect the children from the substantial risk of harm. The juvenile court, by proceeding only on a pendente lite basis and by staying a final determination of dependency and custody of the children, effectively balanced its duty to scrupulously protect the children from the substantial risk of harm and the interest of the children in living in a home free from the substantial risk of harm against the mother’s interest in postponing the entire civil proceeding until after resolution of the criminal charges.

Therefore, we cannot conclude that the juvenile court exceeded its discretion by failing to grant the mother’s request for a stay of the pendente lite proceeding in this matter. Accordingly, because the mother has failed to demonstrate that she had a clear legal right to the relief requested, the mother’s petition for a writ of mandamus is denied.

PETITION DENIED.

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

      . We conclude that the allegations in the paternal aunt's petition were sufficient to invoke the juvenile court’s exclusive original jurisdiction over dependency actions. See § 12 — 15— 114(a), Ala. Code 1975, and § 12-15-102(8)(a), Ala.Code 1975 (defining "dependent child”).

      . The mother also argues that the juvenile court’s failure to stay the pendente lite proceeding violated Art. I, § 6, Ala. Const. 1901, which states ”[t]hat in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself....” However, nothing in the materials presented to this court demonstrates that the mother’s argument before the juvenile court included an argument regarding Art. I, § 6, Ala. Const. 1901. Therefore, this opinion will consider only the mother's argument regarding her Fifth Amendment right against self-incrimination. See Ex parte Ebbers, 871 So.2d 776, 786 (Ala.2003).