author: BOLIN, Justice. MURDOCK, Justice

text:
    SAFECO INSURANCE COMPANY OF AMERICA and Johnson Controls, Inc. v. GRAYBAR ELECTRIC COMPANY, INC.
    1090422.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Stephen G. Lowe of Adorno & Yoss, Atlanta, Georgia; and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants.
    Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham; and C. Richard McQueen of Greene, Buckley, Jones & McQueen, Atlanta, Georgia, for appellee.
   BOLIN, Justice.

Safeco Insurance Company of America (“Safeco”) and Johnson Controls, Inc. (“JCI”), appeal from a summary judgment entered in favor of Graybar Electric Company, Inc. (“Graybar”).

Facts and Procedural History

In October 2006, JCI entered into a contract with the Birmingham Airport Authority to perform work in connection with upgrades to the closed-circuit television system at the airport. As the general contractor for the project, JCI was required to furnish surety bonds, including a payment bond. JCI procured the bonds from Safeco, as surety on the project.

In performing the work on the project, JCI entered into a subcontract with TDC Systems Integration, Inc. (“TDC”). Gray-bar supplied electrical parts and equipment to TDC on credit pursuant to a contract. TDC failed to pay Graybar for the materials.

On January 10, 2008, Graybar sued TDC and its president, Antonio Dozier, who had signed a personal guaranty on behalf of TDC, in Georgia. Graybar alleged that TDC and its president owed Graybar $255,639.27 under a credit agreement and the personal guaranty. This amount included amounts Graybar alleged TDC owed on the airport project in Birmingham and on a project in New Orleans.

On April 18, 2008, Graybar notified JCI and Safeco by certified mail, pursuant to the payment bond and pursuant to § 39-1-1, Ala.Code 1975, concerning bonds required of persons contracting for public works, that TDC had failed to pay for materials and supplies sold to TDC for work performed on the airport project. The notice also provided that Graybar would seek reasonable attorney fees and interest in accordance with § 39 — 1—1(b). In the notice, Graybar stated that a complete set of Graybar’s invoices and proofs of delivery compiled to date containing approximately 400 pages would be sent to Safeco and JCI and that TDC had already been provided with a copy of those documents. On April 23, 2008, those documents were sent to Safeco, JCI, and the Birmingham Airport Authority. JCI did not respond. On May 28, 2008, Safeco responded to the notice, denying Graybar’s claim on the grounds that Graybar had not complied with the notice requirements of § 39-1-1 and that the invoices and other materials sent by Graybar were insufficient to satisfy Safeco that the materials TDC ordered and allegedly failed to pay for were actually used on the airport project. Safeco contended:

“TDC admits that they ordered the materials/supplies, received the good[s] and did not pay for them. They did not indicate which job the goods were used on or whether they were used at all. They admitted to ordering and receiving only. At no time, in any of the court documents!,] did they indicate that any of the goods were used on the Birmingham job. Thus, the provided court documents fail to shed any light on the subject.”

On October 3, 2008, Graybar filed a verified complaint for money damages against Safeco and JCI (hereinafter collectively referred to as “the defendants”) in the Jefferson Circuit Court. Graybar alleged that TDC failed to pay for materials used in the airport project in the amount of $202,076.22. Attached to the complaint, among other things, was an affidavit from TDC’s president stating that TDC had purchased materials having a total value of $202,076.22 from Graybar for use on the airport project and that TDC had not paid for the materials. Also, there was an affidavit from Graybar’s financial officer attesting to the amount of money spent on attorney fees and costs in trying to obtain satisfaction under the payment bond. On November 26, 2008, the defendants filed an answer denying Graybar’s claims.

On February 26, 2009, Graybar entered into a settlement agreement with TDC and its president in the lawsuit that had been filed in Georgia. The settlement provided as follows:

“This Settlement Agreement is entered into as of this 26th day of February, 2009, between Plaintiff, Graybar Electric Company, Inc., (herein ‘Gray-bar’), and Defendants, TDC Systems Integration, Inc. and Antonio Dozier, jointly and severally (herein ‘Defendants’).
“WHEREAS, Graybar filed a Complaint against Defendants in this court seeking to recover money owed to Gray-bar for materials supplied to TDC Systems Integration, Inc., in connection with two (2) construction projects, namely, Project NOIA SOC-1542 Access Control, Security Network Integration & Electrical Systems, at the New Orleans, Louisiana Airport (the ‘New Orleans Job’) and Closed Circuit Television (CCTV) System Upgrade Project at the Birmingham International Airport, Birmingham, Alabama (the ‘Birmingham Job’); and
“WHEREAS, Defendants desire to settle the above-captioned [Georgia] civil action and reduce or eliminate expenses of litigation; and
“WHEREAS, Defendants acknowledge and agree that the total principal amount due to Graybar is $233,996.79, comprised of the principal amount of $31,920.57 due on the New Orleans Job and the principal amount of $202,076.22 due on the Birmingham Job; and
“WHEREAS, the parties desire to stay the captioned civil action pending payment by Defendants to Graybar of said principal amount plus interest thereon as hereinafter provided.
“NOW THEREFORE, for and in consideration of Graybar’s agreement under the terms of this Settlement Agreement to forbear from the entry, enforcement and collection of the Consent Judgment, a copy of which is attached hereto as Exhibit ‘A,’ and specifically made a part hereof. Defendants agree and consent as follows:
“1.
“Defendants shall consent to a Consent Judgment by and through Defendants’ counsel of record in the above-captioned civil action granting Graybar judgment against Defendants, jointly and severally, for. the principal amount of $233,996.79, plus accrued interest thereon, or so much thereof as may from time to time remain outstanding and unpaid, at the rate hereinafter set forth from May 15, 2009, until said Consent Judgment is entered in the above captioned civil action, and thereafter at the rate provided by law until the unpaid principal amount with all interest accrued thereon is paid in full, together with reasonable attorney’s fees, and costs and expenses incurred in connection with the above referenced civil action. The original of said Consent Judgment shall be surrendered to Graybar or its attorney. Graybar or its attorney, as applicable, will hold the Consent Judgment and only have said Judgment presented to the Court for signature and entered in the above captioned civil action if Defendants default in the terms and conditions of this Settlement Agreement.
“2.
“In further consideration of Graybar’s agreement and forbearance as aforesaid, Defendants agree to pay to Graybar the principal amount of $283,996.76 plus accrued interest at the rate hereinafter set forth in accordance with the following terms and conditions:
“Said principal sum, or the amount outstanding and unpaid from time to time, shall bear interest at the rate of five and one-quarter per cent (5 1/4%) per annum from May 15, 2009. Interest shall be computed on a 365-day year simple interest basis and shall be computed on the daily outstanding principal balance. Said principal sum from time to time outstanding and unpaid, with accrued interest thereon, shall be due and payable monthly in installments of principal and of interest, commencing May 15, 2009, in accordance with the payment schedule attached hereto as Exhibit ‘B’ and made a part hereof, with the final installment of principal and of interest being due and payable on October 10, 2010. ' Interest at the rate aforesaid on said principal sum from time to time outstanding and unpaid shall continue until said principal sum and all accrued interest thereon have been paid in full or until said Consent Judgment is entered in the above captioned civil action, whichever event first occurs. Time is of the essence of this Agreement.
“Payments as made shall be applied first to the payment of interest on the principal sum, or the balance thereof remaining from time to time unpaid, and the balance of said payments shall be applied to principal/ All payments shall be made by bank check in lawful money of the United States of America which shall at the time of payment be legal tender in payment of all debts, public and private, and shall be payable to Graybar Electric Company, Inc., and mailed to Graybar Electric Company, Inc., Attention: John Kahne, Director Finance, 2050 Nancy Hanks Drive, Nor-cross, Georgia 30071-2956.
“It is acknowledged and agreed between the parties that the principal amount due and payable for the New Orleans Job is $31,920.57 and that upon payment by Defendants of the first payment due hereunder on May 15, 2009 in accordance with the attached payment schedule, the principal portion of said first payment equal to said $31,920.57 amount will be deemed the full .and final payment due by Defendants to Graybar in connection with the New Orleans Job. The principal portion of said first payment remaining, that is $5,226.26, will be credited against the principal amount due by Defendant to Graybar for the Birmingham Job.
“3.
“Provided, however, in the event Defendants default in any of the terms and conditions of this Settlement Agreement, and such default is not cured within five (5) days after receipt of written notice from Graybar to Defendants as hereinafter provided, then Graybar immediately thereafter shall have the right to present the Consent Judgment to the court for signature and to have said Judgment entered in the above captioned civil action, and thereafter the right to enforce and collect the unpaid principal balance with accrued interest thereon at the rate of five and one-quarter per cent (5 1/4%) per annum from May 15, 2009 to the date said Consent Judgment is entered in the above captioned civil action, and thereafter at the rate as provided by law until said unpaid principal amount and all accrued interest thereon are paid in full, together with reasonable attorney’s fees and costs.and expenses incurred in connection with the captioned civil action.
“Any notice to Defendants shall be in writing and deemed given to Defendants by delivery of the same to Defendants’ counsel.... Rejection or other refusal to accept any notice shall be deemed to be receipt of said notice.
“4.
“The parties further agree that the captioned civil action shall be stayed and not subject to dismissal for lack of prosecution pending payment under this Set-tlément Agreement. The parties further agree that there are no intended third party beneficiaries to this Settlement Agreement and do not intend this Settlement Agreement to benefit any third party. Further, this Settlement Agreement encompasses the entire agreement between the parties and neither party has relied upon any implied or express representations not contained herein.”

On March 11, 2009, the trial court in the Alabama action held a status conference. On March 17, 2009, Graybar filed a notice of the settlement agreement in the Georgia action with the trial court in the present case. On May 14, 2009, the trial court conducted a second status conference. The defendants had not sought any discovery from Graybar. On May 20, 2009, the trial court set the case for trial on October 19, 2009.

On August 27, 2009, the defendants moved for a summary judgment on the ground that the settlement agreement in the Georgia action was a novation and that it extinguished Graybar’s assertion of any claim arising out of Graybar’s contract with TDC and that the settlement agreement was a complete defense to Graybar’s claims under the payment bond issued by Safeco. On October 1, 2009, Graybar filed a cross-motion for a summary judgment. Attached to Graybar’s motion were updated affidavits from TDC’s president and Graybar’s financial officer.

The trial court held a hearing on the summary-judgment motions, and on October 22, 2009, denied the defendants’ motion and granted Graybar’s cross-motion. Specifically, the trial court stated, in denying Safeco’s motion, that Bledsoe v. Car-gill, Inc., 452 So.2d 1334 (Ala.Civ.App. 1984), holds that the intention of the parties is determinativé of whether there has been a novation or a substitution of one contract for another. The trial court, relying on Bledsoe, held that the parties to the settlement agreement — Graybar, TDC, and its president — did not intend to benefit any third party and that the intent of the parties was not to substitute the settlement agreement for rights under the payment bond issued by Safeco. With regard to the Graybar’s summary-judgment motion, the trial court stated that the bond remained in effect and that there was no dispute as to the amount still owed. The trial court awarded attorney fees to Gray-bar. The defendants appeal.

Standard of Review

Our standard of review of a summary judgment is well settled:

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
‘“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party.must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d- 337, 342 (Ala. 2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, (Ala.2006).

Analysis

The defendants argue that the trial court erred in denying their summary-judgment motion because, they assert, the settlement agreement between Graybar and TDC in the Georgia action was a novation and the novation extinguished Graybar’s claims under the payment bond.

At the outset, we note that this case arises under § 39-1-1 et seq., Ala. Code 1975, commonly referred to as Alabama’s little Miller Act. Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732, 734 (Ala. 2002). The Alabama statute is patterned after the Federal Miller Act, now codified at 40 U.S.C, §§ 3131-3133. “The construction given to the federal act has been adopted in Alabama, unless otherwise noted.” Kruger, 829 So.2d at 734 n. 1. Generally, when a person has provided labor or materials or has supplied services on a private construction project, the person is entitled under § 35-11-210, Ala.Code 1975, the mechanic’s or materialman’s lien statute, to file a lien against the private property and subsequently to foreclose on the property, if not paid for those services. However, § 35-11-210 does not apply to public property. Martin v. Holtyille High School Bldg., 226 Ala. 45, 145 So. 491 (1933)(public-school building was not subject to foreclosure sale under the predecessor statute to § 35-11-210). The Alabama Legislature provided a remedy in 1927. when it codified specific provisions to ensure that materialmen receive full payment for labor or materials supplied on a public-works project. § 39-1-1. Alabama’s statute was patterned after a federal act enacted in 1894 called the Heard Act. Ch. 280, 28 Stat. 278 (1894) (since repealed); see also State v. Southern Sur. Co., 221 Ala. 113, 127 So. 805 (1930) (discussing the essential provisions' of the state and federal payment-bond statutes existing in 1930). Alabama first amended its public-works-payment-bond statute in 1935 to pattern it after the federal act called the Miller Act (enacted in 1935 to rectify inadequate protections in the Heard Act). See 40 U.S.C. §§ 3131-3133 (formerly 40 U.S.C. §§ 270a-270d).

“[T]he purpose of a payment bond required under the little Miller Act is to ‘shift the ultímate risk of nonpayment from workmen and suppliers to the surety.’” Kruger, 829 So.2d at 736 (quoting American Sur. Co. v. Hinds, 260 F.2d 366, 368 (10th Cir.1958)). “The purpose of the [little Miller] act is to provide security for those who furnish labor and material in performance of government contracts as a substitute for unavailable lien rights, and is liberally construed to accomplish this purpose.” Headley v. Housing Auth. of Prattville, 347 So.2d 532, 535 (Ala.Civ.App.1977).

“The legal standard for determining whether a supplier has relinquished its statutory rights is firmly established: absent a novation or clear expression to the contrary, a supplier does not forfeit its right to sue under the public works statute. United States v. Forrester, 441 F.2d 779, 782 (5th Cir.1971); Warrior Constructors Inc. v. Harders, Inc., 387 F.2d 727, 729 (5th Cir.1967).
“ ‘The right to sue on a surety bond is a'right created by statute, and in the absence of a novation or clear expression to the contrary, the contention that there has been a waiver or release of that right must fail.’
“Forrester, 441 F.2d at 782;. Wamor, 387 F.2d at 729. Thus, absent a novation, waiver, estoppel, or other clear and explicit relinquishment of the statutory right, a supplier is entitled to pursue payment under a bond. [United States ex rel. Clark-Fontana Paint Co. v.] Glassman, 397 F.2d [8] at 10 [ (4th Cir.1968) ] (express waiver must be both clear and explicit); see also Forrester, 441 F.2d at. 783 (estoppel a valid defense under the Miller Act); Glassman, 397 F.2d at 11 (same); Graybar Elec. Co. v. John A. Volpe Constr. Co., 387 F.2d 55, 59 (5th Cir.1967) (same); United States v. James Stewart Co., 336 F.2d 777, 779 (9th Cir.1964) (same).”

Trane Co. v. Whitehurst-Lassen Constr. Co., 881 F.2d 996, 1003 (11th Cir.1989).

“A novation is the substitution of one contract for another; a novation releases the party bound by the original contract. A novation extinguishes the preexisting obligation.” Golden v. Bank of Tallas see, 639 So.2d 1366, 1369 (Ala.1994). “Novation requires: ‘(1) a previous valid obligation; (2) an agreement of the parties thereto to a new contract or obligation; (3) an agreement that it is an extinguishment of' the old contract or obligation; and (4) the hew contract or obligation must be a valid one between the parties thereto.’ ” Boh Bros. Constr. Co. v. Nelson, 730 So.2d 132, 134 (Ala.1999) (quoting Warrior Drilling & Eng’g Co. v. King, 446 So.2d 31, 33 (Ala.1984)).

Graybar cites Medley v. South-Trust Bank of the Quad Cities, 500 So.2d 1075 (Ala.1986), for the proposition that a novation is a substituted contract that includes a party who was neither the obligor nor the obligee to the original duty. The appellate courts of this State have used the terms “novation” and “substituted contract” interchangeably. However, there is a technical distinction: “a substituted contract is one that is accepted in satisfaction of the original contract .and thereby discharges it, while a novation is a substituted contract that includes a party who was not part of the original contract.” 66 C.J.S. Novation § 1 (2009) (footnotes omitted). In the present case, it is obvious that the issues is whether a substituted contract was accepted in satisfaction of the original contract.

The defendants argue that Bledsoe v. Cargiü, Inc., 452 So.2d 1334 (Ala.Civ.App. 1984), cited by the trial court, is inapposite here because the Bledsoe court rejected the argument that the defendant was not a party to the subsequent agreement and, therefore, the subsequent agreement could not replace the prior agreement to which the defendant was a party. The defendants contend that in the present case both the prior agreement and the present agreement were between Graybar and TDC and that they are relying on the substitution of the later agreement for the earlier agreement between those same parties that created the substituted contract upon which the defendants rely.

In Bledsoe, supra, Cargill, Inc., supplied feed and supplies for use in livestock production. Sidney Bledsoe was a shareholder in a corporation with three other shareholders. ' All the shareholders had signed personal guaranties in the amount of $10,000 each to obtain credit with Cargill. The guaranty agreements provided that Cargill could take, extend, or renew collateral from other persons without changing or releasing or discharging Bledsoe from his obligation under the guaranty agreement, and that the guaranty was an absolute continuing guaranty that would remain in full force and effect until the delivery to Cargill of a notice in writing signed by Bledsoe terminating the guaranty agreement.. Subsequently, Bledsoe sold his shares in the corporation. Bled-soe did not notify Cargill of his intent to terminate the guaranty agreement. The remaining shareholders then executed new personal guaranty agreements in the amount of $50,000 each with Cargill. The new guaranty agreements were expressly intended by Cargill and the remaining shareholders to be substituted for their original guaranty agreements. At some point after the new guaranty agreements were executed, Bledsoe received a letter from Cargill informing him that the corporation was in debt and that he owed Cargill $10,000 on his personal guaranty. Bledsoe refused to pay, and Cargill sued. Bledsoe argued that once he sold his interest in the corporation and once the shareholders of the corporation executed the new guaranty agreements for $50,000, there was, in effect, a substitution of the $50,000 guaranties for the earlier $10,000 guaranties. The Bledsoe court held that Bledsoe was not a party to the substitution of the $50,000 guaranties for the $10,000 guaranties nor did he consent to the substitution of the new guaranties for the old guaranties. The court concluded that evidence failed to show that the parties intended that the new guaranties discharge Bledsoe from his $10,000 guaranty.

In the present case, the trial court correctly cites Bledsoe for the proposition that whether there has been a substituted contract depends upon the intention of the parties, which may be determined by the facts and circumstances. The trial court expressly found that Graybar and TDC, as parties to the settlement agreement, did not intend to benefit any third party and that the intent of the parties was not to substitute the settlement agreement for rights arising under the payment bond issued by Safeco. Without, citing any authority, the defendants argue that the settlement agreement amounts to a substituted contract for the payment bond because, they say, the terms substantially and materially alter the terms of the original agreement as to the amount of interest that may be charged and when payment may be demanded and because the president of TDC surrendered any defenses as a guarantor and became jointly and severally liable for the debt. The defendants’ argument ignores Graybar and TDC’s express statements in the settlement agreement that TDC was not released from the previous obligation to pay for the materials supplied for the airport project and that the settlement agreement was not intended to benefit any third party, which would clearly include the defendants, who were nonparties to the settlement agreement.

The defendants cite Trane, 881 F.2d 996, supra, in support of their position that there was a novation in the context of the little Miller Act. In Trane, 881 F.2d 996, supra, a board of education had entered into a contract for the renovation of a school cafeteria. The prime contractor entered into a payment bond with a surety to secure payment to persons furnishing materials for the project as required by Ala. Code 1975, § 39-1-1. Trane, a supplier of air-conditioning and heating equipment, successfully bid to provide equipment to the mechanical subcontractor. The mechanical subcontractor owed Trane for another job unrelated to the school cafeteria and was 60 days past due on that debt. Trane ordered the equipment for the school cafeteria, which had to be manufactured, but ordered that the shipment be held until a “credit hold” was lifted. When the equipment was ready to ship, Trane ultimately contacted the prime contractor and told it that Trane would require a purchase order directly from the prime contractor before the equipment would be shipped, which the prime contractor provided. Trane shipped the equipment but was not paid. Subsequently, the prime contractor terminated its contract with the mechanical subcontractor but did not inform Trane. The prime contractor entered into a settlement with the mechanical subcontractor, but Trane was not paid.

The prime contractor argued that Trane had relinquished its statutory right to payment under the payment bond because Trane had entered into a new agreement with the prime contractor in place of the preexisting agreement with the mechanical subcontractor; that it had waived its statutory right by requesting a purchase order from the prime contractor; or that it was estopped from asserting its right to payment because the prime contractor had overpaid the mechanical subcontractor in its settlement agreement. With regard to its novation, the court held that there was no evidence indicating that there had been no mutual assent, consideration, or definitive terms to support the prime contractor’s argument that there was a new contract. Trane still had a commitment to provide the mechanical subcontractor with air-conditioning ■ and heating equipment, and Trane did not intend the new purchase order to substitute for the prior agreement. The court held that Trane’s request for a. new purchase order was akin to a request for additional security and that it did not constitute a waiver of its statutory rights under the little Miller Act. In the present case, the settlement agreement did not release TDC from its obligation to pay the full contract price.

We also find instructive with regard to the Miller Act Liebman v. United States ex rel. California Electric Supply Co., 153 F.2d 350 (9th Cir.1946). ' In Liebman, California Electric supplied electrical fixtures and materials to a subcontractor for a public-works project involving an airport. The prime contractor obtained a payment bond from a surety. The subcontractor did not pay for the fixtures and materials, and California Electric filed a claim under the Miller Act. Subsequently, the subcontractor filed a petition in bankruptcy. California Electric filed a claim against the bankrupt’s estate and asserted that it was a priority claim under the Miller Act. The referee refused to rule on the claim because the funds were not in court, and the prime contractor refused to pay over the amount owed the subcontractor until there was an order directing to whom it was to be' paid. To avoid a suit by the bankruptcy trustee, the parties entered into a written stipulation, which stated the circumstances under which the controverted sum was to be deposited into the bankruptcy-estate. The referee determined that California Electric’s claim was not a priority. California Electric then sued the prime contractor and the surety. The prime contractor and surety argued that, the stipulation constituted a release of the obligation under the Miller Act. The court stated:

“The language of the stipulation is a mere recital of the circumstances under which the controverted sum was deposited with bankruptcy court. As the lower court stated there is no language in the stipulation expressing or suggesting a release from the obligation under the surety bond. The record discloses no written or oral waiver or release of right under the Miller Act. The purpose of the Miller Act is to protect those who furnish materials or labor or both for public buildings and to insure the payment in full for such materials and .labor. The right to sue on a surety bond is a right created by statute, and in the absence of a novation, the appellants’ contention that there was a waiver or release of that right must fail.
“Appellants urge that the California Electric Supply Company by entering into the stipulation is now estopped from seeking relief on the surety bond. Because they relied upon the stipulation as a waiver of rights to sue on the payment bond, appellants claim they have placed themselves in the position where they will have to pay this obligation twice. The materialman here receives payment but once. Appellants’ position has not been changed prejudicially. The situation here would be the same if there had been no stipulation at all.”

153 F.2d at 352.

The defendants cite City of Philadelphia v. Joseph S. Smith Roofing,, Inc., 410 Pa.Super. 95, 599 A.2d 222 (1991). However, that case is clearly distinguishable from the present case. In Smith Roofing, the general contractor for a public-works project had entered into a subcontract with a roofer. The roofer had entered into a contract with a supplier. The roofer failed to pay the supplier, and the. supplier then sued the roofer. Subsequently, the supplier entered into a settlement agreement with the roofer, agreeing to accept 25 percent of the debt owed it. The settlement agreement released all guarantors and sureties of the roofer’s debt. The supplier sought to recover the balance, under the payment bond issued by the surety for the general contractor. . The court held that, under the terms of the settlement agreement, the debt owed the supplier for the materials used had been fully satisfied and the surety discharged of any fluty. In the present case, the settlement agreement provided that Graybar “forbear from the entry, enforcement, and collection of the consent judgment” in exchange for TDC’s agreement to consent to the entry of the consent judgment and set out TDC’s obligation to pay the entire amount owed of debt owed. Also, unlike the settlement agreement in Smith Roofing, the settlement agreement here did not discharge the surety.'

Next, the defendants argue that the trial court erred in entering a summary judgment in favor of Graybar. Specifically, the defendants argue that Graybar failed to meet the requirements under Alabama law for recovery under the bond because, they argue, Graybár’s claims included materials from another project, Graybar did not prove its good-faith belief that the materials were for the Birmingham airport project, and Graybar’s negligence precluded a summary judgment in its favor.

In order to be entitled to a summary -judgment, Graybar had to present substantial evidence showing that all the elements of its claim under the little Miller Act had been met. In A.G. Gaston Construction Co. v. Hicks, 674 So.2d 545 (Ala.Civ.App.1995), the Court of Civil Appeals quoted the United States Court of Appeals for the Eleventh Circuit and identified four elements that must be proven before a supplier or a subcontractor is entitled to recover under a payment bond issued pursuant to the little Miller Act:

“ ‘(1) that materials or labor were supplied for work on the public project at issue; (2) that the supplier was not paid for the materials or labor supplied; (3) that the supplier had a good faith belief that the materials furnished were for the project in question; and (4) that the jurisdictional requisites had been met.’ ”

674 So.2d at 547 (quoting United States ex rel. Krupp Steel Prods., Inc. v. Aetna Ins. Co., 831 F.2d 978, 980 (11th Cir.1987)).

Section 39-l-l(b) provides:

“(b) Any person that has furnished labor, materials, or supplies for or in the prosecution of a public work and payment has not been made may institute a civil action upon the payment bond and have their rights and claims adjudicated in a civil action and judgment entered thereon. Notwithstanding the foregoing, a civil action shall not be instituted on the bond until 45 days after written notice to the surety of the amount claimed to be due and the nature of the claim. The civil action shall be commenced not later than one year from the date of final settlement of the contract. The giving of notice by registered or certified mail, postage prepaid, addressed to the surety at any of its places of business or offices shall be deemed sufficient under this section. In the event the surety or contractor fails to pay the claim in full within 45 days from the mailing of the notice, then the person or persons may recover from the contractor and surety, in addition to the amount of the claim, a reasonable attorney’s fee based on the result, together with interest on the claim from the date of the notice.”

The defendants argue that they submitted two invoices from Graybar to TDC in opposition to Graybar’s summary-judgment motion that show that Graybar had included in its invoices materials that were not for the Birmingham airport project and that, because there was evidence indicating that materials for which Graybar was seeking payment under the payment bond were used in other projects, and because some of the materials were generic in nature and could have been used on any project, then it was doubtful that the president of TDC’s recollections would be accurate as to where the materials had been used, and Graybar could not show a good-faith belief that the materials were for the Birmingham project.

In S.T. Bunn Construction Co. v. Cata-phote, Inc., 621 So.2d 1325 (Ala.Civ.App.1993), the Court of Civil Appeals addressed “good faith” in the context of a claim under the little Miller Act. A supplier to a public-works project was not paid, and it sought relief against the general contractor and the surety. The supplier filed a summary-judgment motion asserting that it reasonably believed in good faith that all the supplies sent to the subcontractor were intended for use on the project and that the subcontractor never advised it that some of the materials were to be used on other projects. The supplier further asserted that, because it neither knew of nor consented to the use of some of the materials for other projects, it was entitled to recover for the materials it had shipped to the subcontractor. In response, the general contractor submitted an affidavit stating that it had paid for certain materials used in the project and that the remainder of the materials provided had not been delivered to the project site. The general contractor’s affidavit called the supplier’s good faith into question, making summary judgment inappropriate.

In the present case, unlike S.T. Bunn, the affidavits submitted in support of Graybar’s summary-judgment motion were unequivocal that the materials were used in the Birmingham airport project. The defendants challenge the recollections of TDC’s president, yet they did not seek to depose him, despite having ample time to have done so, and no affidavit was filed pursuant to Rule 56(f), Ala. R. Civ. P. Additionally, the two invoices attached to the defendants’ response to Graybar’s summary-judgment motion, without more, fail to show that a genuine issue of fact exists as to Graybar’s little Miller claim. The two invoices that appear to be from Graybar to TDC include one shipment to TDC’s home office. This would not contradict the president’s sworn statements that the materials were used in the Birmingham airport project. Section 39-1-1 provides that the materials be supplied for use in a public-works project — not that the materials be shipped to the project site. "[A] materialman need not prove that his material was actually installed by the subcontractor. ... He may recover upon showing a reasonable, good faith belief that the subcontractor intended the material for the government job.” United States ex rel. Pomona Tile Mfg. Co. v. Kelley, 456 F.2d 148, 151-52 (9th Cir.1972) (citations omitted). We recognize that the phrase “good faith belief that the materials would be used for the project” is not used in the affidavits attached to Graybar’s summary-judgment motion; however, there ; is evidence through the affidavits that Graybar intended for the materials to be used in the Birmingham airport project and that the materials were indeed used in the project.

The defendants argue that Gray-bar’s own negligence in continuing to supply TDC with materials caused or contributed to Graybar’s failure to be paid and, thus, precludes Graybar from recovering under the payment bond. The defendants cite authority arguing that summary judgment is inappropriate when contributory negligence is at issue. However, contributory negligence is not a defense to a claim under the Miller Act. Essentially, the defendants are arguing estoppel, which is a defense to a claim under the Miller Act. See Trane, supra.

In Graybar Electric Co. v. John A. Volpe Construction Co., 387 F.2d 55 (5th Cir.1967), the prime contractor had issued checks to the subcontractor that had been endorsed to, the order of the supplier and then endorsed back to the subcontractor by the supplier. The general contractor made progress payments to the subcontractor, provided that the subcontractor would endorse the check to each supplier so that the money would not be diverted to other uses.. Pursuant to a prior understanding between the subcontractor and the supplier, of which the general contractor had no knowledge, the supplier would endorse the checks back to the subcontractor. The general contractor argued that the supplier was obligated to credit the amount of the checks against the amount owed by the subcontractor. The court agreed with the general contractor and found that the general contractor did everything it reasonably could to protect itself, short of taking over the subcontractor’s business. Under those circumstances, the supplier was estopped from seeking payment under the bond.

In United States ex rel. Gulfport Piping Co. v. Monaco & Son, Inc., 336 F.2d 636 (4th Cir.1964), the supplier was estopped from recovering under a payment bond because a third party had falsely claimed to be the supplier and the contractor had paid the third party. The real supplier knew of and acquiesced in the false representation of the third party. Here, the defendants’ position is that continuing to send materials to a subcontractor who has been delinquent for several months in paying for materials to be used in a public-works project supports estop-pel. We disagree. Furthermore, the little Miller Act, like the Miller Act, is highly remedial in nature and is entitled to a liberal construction and application in order to effectuate its purpose.

Last, the defendants argue that the court erred in awarding Graybar attorney fees and interest because recovery under the little Miller Act is not absolute and a claimant must adequately prove its entitlement to the damages it seeks. The defendants argue that, because they presented meritorious defenses, Graybar was not entitled to recover at all under the little Miller Act. The defendants argue that the amount claimed to be due must be a valid and correct amount, because it is specifically the nonpáyment of that amount that gives the court the discretion to award attorney fees and interest. We have already addressed the validity of Graybar’s claim under the little Miller Act.

The defendants further argue that Graybar did .not present proof that the amount of attorney fees requested was reasonable. Safeco and JCI were notified on April 18, 2008, of Graybar’s claim for unpaid materials under the little Miller Act along with its claim for attorney fees. Section 39-1-1 (b) of the little Miller Act provides that a supplier may recover a reasonable attorney fee. In support of its request for attorney fees, Graybar attached to its cross-motion for a summary judgment an affidavit setting out the amount of attorney fees Graybar had paid. The defendants did not file anything to controvert the amount requested. Instead, the defendants argued to the trial court that they would be forced to seek discovery if the trial court ruled in favor of Graybar on its summary-judgment motion. In their brief to this Court, the defendants argue: (Defendants’ brief, p. 38.) The case cited by the defendants, Tolar Construction, LLC v. Kean Electric Co., 944 So.2d 138 (Ala.2006), did not involve the little Miller Act, but instead involved the Prompt Payment Act (§ 8-29-1, Ala.Code 1975), also known as the Deborah K. Miller Act. Also, Tolar did not involve a summary judgment but involved a jury trial in which the trial court charged the jury that the court would determine the amount of attorney fees owed depending on the jury’s verdict. Accordingly, we cannot say that the trial court exceeded its discretion in awarding Graybar attorney fees.

“In their response to Graybar’s summary judgment motion, Safeco and JCI pointed out to the trial court that discovery and a hearing on attorney’s fees held after the court ruled on the merits of the summary judgment motions would be appropriate. Otherwise, Safe-co and JCI would have been compelled to seek discovery on opposing counsel’s fees, including time records, before the merits of a case were adjudicated. See Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 143 (Ala.2006) (‘The trial court entered a judgment on this verdict on March 23 and set a hearing on May 2 for “the determination of attorney’s fees, litigation costs and interest, to be assessed against [Tolar].” ’) (C. 196-197.)”

Based on the foregoing, We affirm the judgment of the trial court.

AFFIRMED.

LYONS, STUART, SMITH, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

COBB, C.J., recuses herself.

MURDOCK, Justice

(concurring specially).

I have never understood that, in order for a new agreement to constitute a “novation” of a prior agreement, the new agreement must involve a party that was not a party to the prior agreement. That is, the elements of a novation listed in Boh Bros. Construction Co. v. Nelson 730 So.2d 132, 134 (Ala.1999), as quoted in the main opinion and numerous other decisions by this Court, are accurate and complete as quoted; this includes the second element quoted, i.e., “ ‘ “an agreement of the parties ... to a new contract or obligation.” ’ ” 59 So.3d at 656 (emphasis added). This Court’s recitation of these elements in Boh Bros, and other cases is consistent with what I always have understood to be the general rule. See 58 Am.Jur.2d Novation § 3 (2002) (reciting the same four elements stated in Boh Bros.), § 5 (“A novation may result from the substitution of a new obligation or contract between the same parties, with intent to extinguish the old obligation or contract.”), § 6 (“Although the Restatement and some other definitions of novation require the substitution of a new party, the term is now generally applied to any new contract entered into for the purpose and with the effect of dissolving an existing obligation, whether or not accompanied by change of parties.”) (footnotes omitted); 66 C.J.S. Novation Part II.B. (2009) (titled and discussing “Novation Between Same Parties”).

      . The defendants cite no authority regarding a surety’s status as a third-party beneficiary.

      . Rule 56(f) protects against the premature or improvident entry of a summary judgment by permitting a nonmovant to file an affidavit stating how discovery would enable the non-movant to effectively oppose summary judgment. '•

      . The defendants did not file an affidavit pursuant to Rule 56(f), Ala. R. Civ. P., which, as noted previously, protects against the premature or improvident entry of a summary judgment by permitting a nonmovant to file an affidavit stating how discovery would enable the nonmovant to effectively oppose the entry of summary judgment.


source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice

license: Public Domain

text:
    Maura ELLIOTT and Thomas Elliott v. Eric Wayne MONTGOMERY and William Rambo.
    1090949.
    Supreme Court of Alabama.
    Oct. 15, 2010.

      Richard A. Lawrence, Montgomery; and Scott Johnson, Jr., Montgomery, for appellants.
    Troy King, atty. gen., and Jack Wallace, Jr., asst. atty. gen., for appellees.
   STUART, Justice.

Thomas Elliott was injured when a tractor he was driving as part of his duties as a maintenance worker at the State-operated Confederate Memorial Park in Marbury (“the park”) tipped over and rolled on top of him. Following the accident, Elliott sued two of his fellow employees, Eric Wayne Montgomery and William Rambo, in the Chilton Circuit Court, alleging that his injuries were the result of their willful conduct in failing to install appropriate safeguards on the tractor. His wife, Maura Elliott, subsequently stated a derivative loss-of-consortium claim. The trial court thereafter entered a summary judgment in favor of Montgomery and Rambo and against the Elliotts; the Elliotts appeal. We reverse and remand.

I.

On September 6, 2006, Elliott was assigned to mow grass at the park. Elliott typically used a commercial-grade zero-turn lawn mower when mowing the grass; however, that mower was out of service on that day, and Montgomery, Elliott’s immediate supervisor, instructed him to use instead the John Deere brand 770 tractor owned by the park with a grooming mower attached to the back. Elliott had used this tractor on three or four occasions previously but never with the grooming mower attached; his previous use of the tractor had entailed cutting grass using the tractor’s underbelly mower or cutting away thicker brush and growth using a Bush Hog brand mowing attachment. Moreover, his previous experience driving the tractor had all been with a front-end loader attached to the tractor; however, that front-end loader had been removed on the day of the accident.

After getting on the tractor, Elliott drove it to the area of the park he had been assigned to mow and proceeded to mow for approximately 45 minutes before deciding that he needed to refuel. He then raised the grooming mower and began traveling to the mechanic shed where the fuel dispenser was located. The drive leading to the mechanic shed was sloped at approximately a 10% grade and there was a slope off the shoulder of the drive. As Elliott approached a locked gate, he maneuvered the tractor to the side of the drive to go around the gate, as was the employees’ custom. As he did so, the front tires of the tractor rose off of the ground and the tractor rolled back and off the side of an embankment, tipping over and causing injury to Elliott’s head, neck, and back as the tractor rolled over him. An engineer later retained by Elliott concluded that a primary cause of the accident was the failure to attach a proper ballast, that is, stabilizing weights used as a safety device, to' the front of the tractor, stating in his initial report:

“It is my opinion that the overturning of this tractor, at this location, is a result of an absence of satisfactory ballast at the front of the tractor to prevent the upward movement of the front wheels of the tractor from the ground, when the grooming mower was in the lifted position, in combination with the travel direction of the tractor being upward on a steep slope and on a side slope off the shoulder of the drive. It is also my opinion that the absence of the narrow width of the front and rear wheels provided an unstable condition, perpendicular to the travel direction of the tractor. It appears that the loss of control of the steering, at the front of the tractor by the uplift, was a factor in the tractor moving down the slope at the side of the drive. This is a condition that, considering the size, weight, and ability for lateral movement of the grooming mower attached to the three point hitch, created the overturning condition. It is my opinion that this condition could have been prevented by traveling with the grooming mower in contact with the ground; the use of the proper ballast, at the front of the tractor and, to some less degree, the tractor being driven at the center of the drive rather than off the shoulder. It is my opinion that this failure occurred due to excessive loading and an unstable condition across the narrow width of the tractor.”

As a result of injuries suffered in the crash, Elliott sought and received benefits from the State Employee Injury Compensation Program (“the State program”).

On August 26, 2008, Elliott initiated this action against his supervisor Montgomery and the director of the park, Rambo, alleging that his injuries were the result of their willful conduct. Rule 355-8-1-.02, Ala. Admin. Code (Department of Finance), provides:

“(b) By accepting benefits under this program the employee agrees to release the employer and its officers and employees, professional or corporate agents of the employer and employees thereof, from any liability, other than that arising from willful conduct, for the injuries suffered by the employee for which benefits maybe paid under this program. If an employee initiates a civil action against the employer or its officers or employees, or the employer’s professional or corporate agents or employees thereof, other than for willful conduct, benefits under this program will terminate. If the injured employee, or in case of death, his or her dependents, recover[ ] damages against another party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for benefits. If the damages recovered and collected are in excess of the benefits payable under this chapter, there shall bé no further liability on the employer to pay benefits on account of the injury or death. To the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury -or death. If the employee who recovers damages is receiving or entitled to receive compensation for permanent total disability, then the employer shall be entitled to reimbursement for the amount of benefits theretofore paid, and the employer’s obligation to pay further compensation for permanent total disability shall be suspended for the number of weeks which equals the quotient of the total damage[s] recovery, less the amount of any reimbursement for compensation already paid, divided by the amount of the weekly benefit for permanent total disability which the employee was receiving or to which the employee was entitled. The employer shall be entitled to subro-gation for benefits expended by the employer on behalf of the employee.
“(c) As used herein, ‘willful conduct’ means any of the following:
“(1) A purpose or intent or design to injure another; and if a person, with knowledge of the danger or peril to another, consciously pursues a course of conduct with a design, intent, and purpose of inflicting injury, then he or she is guilty of ‘willful conduct.’
“(2) The willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; provided, however, that removal of a guard or device shall not be -.willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine or was not part of an improvement or modification of the machine which rendered the safety device unnecessary or ineffective.
“(3) The intoxication of another employee of the employer if the conduct of that employee has wrongfully and proximately caused injury or death to the
plaintiff or plaintiffs decedent, but no employee shall be guilty of willful conduct on account of the intoxication of another employee or another person.
“(4) Willful and intentional violation of a specific written safety rule of the employer after written notice to the violating employee by another employee who, within six months after the date of receipt of the written notice, suffers injury resulting in death or permanent total disability as a proximate result of the willful and intentional violation. The written notice to the violating employee shall state with specificity all of the following:
“(i) The identity of the violating employee.
“(ii) The specific written safety rule being violated and the manner of the violation.
“(iii) That the violating employee has repeatedly and continually violated the specific written safety rule referred to in b. [sic] above with specific reference to previous times, dates, and circumstances.
“(iv) That the violation places the notifying employee at risk of great injury or death.
“A notice that does not contain all of the above elements shall not be valid notice for purposes of this section. An employee shall not be liable for the willful conduct if the injured employee himself or herself violated a safety rule, or otherwise contributed to his or her own injury. No employee shall be deemed to have committed willful conduct for the violation of any safety rule by any other employee or for failing to prevent any violation by any other employee. In the event the employer has paid benefits to the employee or his or her dependent, or in the event the employer has received a claim for the payment of the benefits, a civil action against a third party may be maintained either in the name of the injured employee, his or her dependent in case of death, the employer, or the insurance carrier. In the event the damages recovered in the civil action are in excess of the benefits payable by the employer under this chapter and cost, attorney’s fees, and reasonable expenses incurred by the employer in making the collection, the excess of the amount shall be held in trust for the injured employee or, in case of death, for the employee’s dependents.”

The gravamen of the Elliotts’ claims was that Montgomery and Rambo failed to provide and/or install a proper ballast on the front of the tractor with knowledge that the failure to do so would likely lead to injury. The Elliotts further argued that Montgomery’s and Rambo’s action or inaction in that regard was the equivalent of intentionally removing a safety guard or device, an action specifically designated as willful conduct in Rule 355 — 8—1—.02(c)(2); the Elliotts noted that this Court., has in-' terpreted § 25-5-11(c)(2), Ala.Code 1975, part of the workers’ compensation act that governs nongovernmental employees and uses an identical definition of “willful conduct” in precisely that manner. See Bailey v. Hogg, 547 So.2d 498, 500 (Ala.1989) (“We hold that the willful and intentional failure to install an available safety guard equates to the willful and intentional removal of a safety guard for the purposes of Ala.Code 1975, § 25-5-ll(c)(2).”). Elliott’s wife, Maura, later added a derivative loss-of-consortium claim.

Montgomery and Rambo initially moved to dismiss the Elliotts’ complaint for failure to state a cause of action; however, after their motion was denied, they filed answers denying the general allegations of the Elliotts’ complaint. On June 17, 2009, after discovery had been completed, Montgomery and Rambo moved the trial court to enter a summary judgment in their favor, again - arguing that the Elliotts had failed to state a valid cause of action because, they argued, Rule 355-8-1-.02 did not authorize the Elliotts’ stated claims against them. The Elliotts filed a response opposing Montgomery and Rambo’s summary-judgment motion, and, after the Elliotts twice supplemented their response, Montgomery and Rambo filed a final reply.

On December 4, 2009, the trial court entered a summary judgment in favor of Montgomery and Rambo. In the summary-judgment order, the trial court recognized that administrative rules may sometimes provide the basis for a cause of action, see, e.g., Rule 420 — 3—23—.16(ll)(b), Ala. Admin. Code (Department of Public Health) (stating that “a person alleging a violation of Act 321-2000 [setting forth regulations applicable to tattoo and body-art facilities] may bring a civil action for appropriate injunctive relief’); yet, the trial, court noted, Rule 355-8-1-.02 had no language specifically authorizing a cause of action based on willfulness. The trial court further noted that § 25-5-ll(b), Ala. Code 1975, specifically authorized a cause of action based on willfulness in analogous situations involving nongovernmental employees and reasoned that because the clear intent to authorize a cause of action evident in other administrative rules and in § 25-5-ll(b) was not present in Rule 355-8-1-.02, then, in fact, no cause of action based on willfulness was authorized by Rule 355-8-1-.02. See § 25-6-ll(b), Ala. Code 1975 (“If personal injury or death to any employee results from the willful conduct ... of any ... employee of the same employer ... the employee shall have a cause of action against the person.... ”). The Elliotts moved the trial court to alter, amend, or vacate its judgment; the trial court denied that motion, and the Elliotts filed their notice of appeal to this Court on April 6, 2010.

II.

The applicable standard of review was articulated by this Court in Continental National Indemnity Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005):

“An order granting or denying a sum-. mary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.”

III.

The Elliotts argue that the trial court’s interpretation of Rule 355-8-1-.02 is erroneous and that Rule 355-8-1-.02 does in fact authorize their claims against Montgomery and Rambo. In the event this Court upholds the trial court’s interpretation of Rule 355-8-1-.02, the Elliotts argue that the summary judgment entered by the trial court should nevertheless be reversed because, they argue, they should have been granted leave to amend their complaint. However, for the reasons that follow, we agree that Rule 355-8-1-.02 authorizes the Elliotts’ action; accordingly, we do not consider their alternate argument.

Rule 355-8-l-.02(b) indicates that an injured State employee receiving benefits under the State program will have his or her benefits terminated if the employee initiates an-action against his or her employer, its officers, its other employees, or its agents, for anything “other than for willful- conduct.” Thus, Rule 355-8-1-.02(b) clearly contemplates that an injured State employee might pursue a willfulness action against co-employees who the employee alleges are responsible for his or her injuries. Rule 355-8-l-.02(c) defines willful conduct “[a]s used herein,” that is, in Rule 355-8-1-.02, to include not only conduct done with the specific intent to injure, as the term is generally used in the common law, but also certain other conduct where the specific intent to injure is absent. Thus, Rule 355-8-1-.02 implicitly authorizes a cause of action by a State employee against co-employees based on willful conduct as that term is defined in Rule 355-8-l-.02(c).

Despite this holding, Montgomery and Rambo argue that this Court should nevertheless affirm the judgment entered by the trial court on other grounds. See, e.g., Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983) (stating that an appellate court “will affirm the judgment appealed from if supported on any valid legal ground”). They first argue that Rule 355-8-1-.02 is invalid because, they allege, it violates § 36-29A-4, Ala.Code 1975, which provides that the State program to be developed and implemented by the director of finance “is not governed by or subject to the provisions of Act 92-537, or its successor, otherwise known as the Alabama Workers’ Compensation Law [codified at § 25-5-1 et seq., Ala.Code 1975,] or any similar law.” Montgomery and Rambo argue that the director of finance violated § 36-29A-4 by incorporating large portions of the workers’ compensation statutes into the administrative rules governing the State program when those rules were written. They specifically note that Rule 355-8-l-.02(e), which defines “willful conduct,” is a verbatim copy of § 25-5-11(c), and they argue that this effectively makes the State program subject to the workers’ compensation statutes, in clear violation of § 36-29A-4. We disagree.

Section 36-29A-1, Ala.Code 1975, states, in pertinent part:

“The Director of Finance shall have the authority to implement a program to provide compensation for employees of the state and its agencies, departments, boards or commissions who suffer personal injury as a result of accidents arising out of and in the course of their state employment, under such terms and conditions as the Director of Finance shall determine.”

Section 36-29A-4 thereafter explicitly provides that injured State employees and their claims for benefits are subject to the terms and conditions of the program established by the director of finance-pursuant to § 36-29A-1 and not the general workers’ compensation statutes (with the exception of a few provisions in the workers’ compensation statutes, not relevant in this case, that are specifically listed in § 36-29A-4 as applicable to State employees). Section 36-29A-4 did not prohibit the director of finance from establishing for State employees a program similarly structured to the existing program for private employees, and, indeed, it is reasonable that the director of finance would look to existing law when developing a new program for State employees. The legislature granted the director of finance the discretion to decide the “terms and conditions” of the State program, and he did not violate § 36-29A-4 merely by incorporating into the administrative rules governing the State program some of the statutory language used in the workers’ compensation statutes.

Montgomery and Rambo also argue that § 1-3-1, Ala.Code 1975, precludes this Court from interpreting Rule 355-8-1-.02 in the manner urged by the Elliotts. Section 1-3-1 states:

“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions arid laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.”

Montgomery and Rambo argue that, because the statutes authorizing the director of finance to establish the State program— § 36-29A-1 et seq., Ala.Code 1975 — do not specifically authorize the cause of action asserted by the Elliotts, they may seek redress only by pursuing one of the traditional common-law causes of action such as negligence, wantonness, or willfulness. However, this argument fails to recognize that the legislature did, in § 36-29A-1, delegate to the director of finance the responsibility to establish and implement a program to provide compensation for State employees injured in the scope of their employment and authorized the director of finance to establish the terms and conditions of that program. Thus, the cause of action asserted by the Elliotts does have a statutory basis. Moreover, as already noted, many administrative regulations authorize causes of action, and we are not persuaded by Montgomery and Rambo’s argument that Rule 355-8-1-.02 somehow violates § 1-3-1 by doing so.

IV.

The Elliotts sued Montgomery and Rambo, alleging that the Elliotts’ injuries were the result of their willful conduct as that term in defined in Rule 355-8-1-.02. The trial court entered a summary judgment in favor of Montgomery and Rambo, holding that Rule 355-8-1-.02 does not authorize the Elliotts’ asserted cause of action. However, because the language of Rule 355-8-1-.02 clearly contemplates that a State employee might pursue an action for willfulness where his or her injuries are allegedly the result of another’s willful conduct as that term is described in that rule, the judgment of the trial court is hereby reversed, and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I note that nothing in our opinion in this case addresses the issue whether the applicable definition of willfulness is satisfied under the facts presented.

      . Rule 355-8-1-.01, Ala. Admin. Code (Department of Finance), states, in part:
      "The purpose of the [State] Employee Injury Compensation Program is to provide compensation for employees of the state and its agencies, departments, boards, or commissions, except as excluded by law, who suffer personal injury as a result of accidents arising out of and in the course of their state employment.”

      . Elliott did not state a claim of common-law willfulness, presumably because such a claim traditionally requires specific proof of intent to injure and it is undisputed there was no such intent in this case. See English v. Jacobs, 263 Ala. 376, 379, 82 So.2d 542, 545 (1955) ("To constitute ‘willful or intentional injury,’ there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission.”).


author: BOLIN, Justice.

text:
    STATE of Alabama ex rel. Michael O’DELL, District Attorney for the Ninth Judicial Circuit of Alabama v. Gary Michael COKER.
    1091068.
    Supreme Court of Alabama.
    Oct. 15, 2010.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    John D. Coggin, Centre, for appellee.
   BOLIN, Justice.

The State of Alabama on behalf of Michael O’Dell, District Attorney for the Ninth Judicial Circuit of Alabama, appeals from the trial court’s order, quashing a writ of execution on the real property owned by Gary Michael Coker. We reverse and remand.

Facts

The record reflects that Coker was arrested for and charged with trafficking in methamphetamine.' In addition to filing criminal charges, the State also filed a civil condemnation action against Coker, seeking forfeiture of: (1) cash in the amount of $98,273 and (2) title to real property consisting of a house and two acres of land owned by Coker (hereinafter referred to as “the subject property”). On August 25, 2008, Coker entered into a plea agreement. According to the trial court, the plea-agreement form indicated that the plea was an “open plea” insofar as the sentencing was concerned; other aspects of the agreement, however, including a mandatory fine of $50,000 (hereinafter referred to as “the criminal fine”), were agreed upon by Coker, Coker’s attorney, and the district attorney. The trial court held a sentencing hearing on September 29, 2008. At the conclusion of the guilty-plea colloquy, the trial court signed a proposed consent order signed by Coker, his- attorney, and the deputy district attorney, in which the parties agreed that the cash would be deemed contraband and forfeited to the State but that the State’s request for forfeiture of the subject property as contraband would be denied. The consent order reads as follows:

■ “By agreement of the parties, the Court orders as follows:
“1. The State’s request to have the real property identified in this action as ‘One (1) Parcel of Land with Structures and Fixtures’ and as ‘the premises of Coker,’ which is located at ... declared contraband and to further constitute fruits or instrumentalities of the drug trade subject to forfeiture ... is DENIED. Coker shall retain full title, use, possession and enjoyment of said property. The State relinquishes all claim to said property.
“2. Defendant Coker shall be responsible for preparing and filing any documents that are necessary to clear the notice of lis pendens which the State has recorded against the real estate which is subject-matter of this action and shall bear any costs associated with filing same.
“3. NINETY-EIGHT THOUSAND, TWO HUNDRED AND SEVENTY-THREE DOLLARS ($98,273.00) Lawful Cash, Coin, or Currency of the United States of America which is subject-matter of this action is declared to constitute fruits and instrumentalities of the illicit drug trade and therefore to further constitute contraband. Said currency is forfeited pursuant to Ala.Code § 20-2-93 to the CHEROKEE COUNTY NARCOTICS UNIT for official use as provided by law....”

(Capitalization in original; emphasis added.) Accordingly, the trial court sentenced Coker and ordered him to pay the criminal fine and any additional assessments due.

On December 30, 2008, the State obtained a judgment against Coker in the amount of $67,704.65, an amount representing the unpaid criminal fine and assessments. The State thereafter filed a writ of execution seeking to seize the subject property in order to collect the criminal fine. Coker responded by filing (1) a motion to remit the fine, arguing that he has no means of support with which to contribute toward the criminal fine until he is no longer incarcerated; (2) a claim for exemptions, arguing that the property sought to be seized was his homestead and was therefore exempt from execution; and (3) a motion seeking relief from the writ of execution by virtue of the language in the consent order in which the State relinquished any claim it might have to execute on the subject property. The trial court conducted a hearing on the foregoing matters and thereafter entered an order quashing the writ of execution on the subject property. In interpreting the consent order, the trial court ultimately concluded that the State’s claim against the subject property in the consent order was broad enough to extend to its subsequent effort to collect the fine in the criminal case, thereby pretermitting any ruling on Coker’s homestead-exemption claim or his motion for relief from the writ of execution. The State filed a motion to alter, amend, or vacate the order quashing the writ of execution. The trial court denied the motion, and the State appealed.

Standard of Review and Applicable Law

“For purposes of construction, a consent order is to be construed like a contract. Hanson v. Hearn, 521 So.2d 953 (Ala.1988). The legal effect of judgments or orders should be determined in the light of the literal meaning of the language used. Where that language is not ambiguous, it must be given its usual and ordinary meaning. Moore v. Graham, 590 So.2d 293 (Ala.Civ.App.1991).”

Dewitt Apparel, Inc. v. Four Seasons of Romar Beach Condominium Owners’ Ass’n, Inc., 678 So.2d 740, 744 (Ala.1996).

“The question whether a contract is ambiguous is for a court to decide. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999). As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999). Thus, we apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.”

Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001).

Furthermore, “[w]here no ambiguity exists, the court’s only function is to interpret the lawful meaning and intentions of the parties as found within the agreement and to give effect to them.” Johnson v. Asphalt Hot Mix, 565 So.2d 219, 221 (Ala.1990).

Discussion

In its brief before this Court, the State argues that the phrase in the consent order, “[t]he State relinquishes all claim to [the subject] property,” was intended by the parties to mean that the State merely relinquished the specific claim over the subject property that it had in the forfeiture case at the time the consent order was signed and that the phrase does not operate to bar future claims that might arise against the subject property. The State asserts that it took great effort in explaining to Coker’s counsel that the disposition of Coker’s criminal case by a plea agreement and the consent order in his civil forfeiture case would remain completely separate and that the terms of one could not be dependent on the terms of the other. In construing the consent order in its entirety, we conclude that there is nothing ambiguous about the consent order or about the parties’ intent, which is clearly expressed in the consent order. The language in the consent order recites (1) that “Coker shall retain full title, use, possession and enjoyment of [the subject] property,” (2) that “[t]he State relinquishes all claim to [the subject] property,” and (3) that “Coker shall be responsible for preparing and filing any documents that are necessary to clear the notice of lis pendens which the State has recorded against the real estate which is the subject-matter of this action .... ” (Emphasis added.) The use of the phrase “this action” refers specifically to the forfeiture action in which the State “[had] recorded” a lis pendens against the subject property at the time the consent order was signed. Once Coker filed the necessary documents clearing the notice of lis pendens the State had recorded against the subject property in the forfeiture action, the consent order no longer had any bearing on any future claims that might accrue on behalf of the State against the subject property. The consent order in this case “must be construed in its entirety-r-single provisions or sentences are not to be disassociated from others referring to the same subject matter.” Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 814, 317 (Ala.1993).

Based on the foregoing, the trial court’s order quashing the writ' of execution on the subject property is reversed, and the cause is remanded for the trial court to determine whether Coker is entitled to relief under the alternative theories argued before the trial court.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.


text:
    Ex parte Sanford P. LOWENGART III. (In re Gloria Lowengart v. Sanford P. Lowengart III et al.).
    1091069.
    Supreme Court of Alabama.
    Oct. 15, 2010.

      Joseph L. Kerr, Jr., of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for petitioner.
    James L. North and J. Timothy Francis of James L. North & Associates, Birmingham, for respondent.
   BOLIN, Justice.

Sanford P. Lowengart III seeks a writ of mandamus ordering the trial court to grant his Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss him as a defendant in an action brought by Gloria Lowengart on the basis that the trial court lacks personal jurisdiction over him.

Facts and Procedural History

Gloria has been a resident of Alabama since 2000. Sanford, her son, lives in California and was employed by Cephus Capital Management LLC (“Cephus”), an investment-management company he founded, in 2007. According to Gloria, Sanford contacted her in September 2007 and asked her to retain Cephus as her investment advisor. Cephus sent Gloria an investment-advisory agreement “made between the undersigned party Gloria D. Lowengart (‘Client’) and Cephus Capital Management LLC, a registered investment adviser (‘Adviser’).” The agreement set out the terms and conditions for Ce-phus’s representation of Gloria, which Gloria signed on September 7, 2007. The agreement contained an arbitration clause.

According to Gloria, Sanford contacted her in April 2008 and suggested that she terminate her investment-advisory agreement with Cephus and that she appoint Cephus as her power of attorney to trade securities on a discretionary basis within her investment account with Charles Schwab & Co. On May 1, 2008, Gloria sent the following letter to Sanford at- Cephus:

“This letter shall serve to confirm that Cephus Capital Management LLC is not the ‘Investment Advisor’ of my Charles Schwab & Co. account. We have not entered into an Investment Advisory agreement (as Cephus does not charge fee’s [sic] on my account nor actively manage these assets).
“I desire to have my son, Sanford P. Lowengart III, assist me in MY OWN management of the account through helping me execute trades (my own self directed trades) and executing stop loss orders electronically. I do not possess a computer or knowledge of internet trading mechanics. I will ultimately determine each investment, trade and strategy (including use of margin leverage) and be wholly responsible for the outcome. I realize that for someone of my age and means I put myself at great risk by using margin debt so aggressively and maintaining such concentration in momentum sectors of the market. I hold harmless Cephus Capital Management LLC from any losses arising from my own trading.
“If I choose to enter in to an Investment Advisory relationship with Cephus Capital Management LLC, at a point in the future, I will notify the firm in writing by signing an Investment Advisory Agreement and filling out an Investment Questionnaire to determine Investment Policy.”

Cephus mailed Gloria a limited power of attorney, which she signed on May 7, 2008, and returned to Cephus. The limited power of attorney allowed Charles Schwab & Co. to execute trades on her investment account there at Cephus’s direction. The power of attorney described the method for determining the amount of investment-advisory fees and provided that that amount would be debited from Gloria’s Charles Schwab account. Under the power of attorney, notice of any proxies, tender offers, proposed mergers, rights offerings, and other issuer communications went to Gloria and not to Cephus. Between May 2008 and October 2008, 422 transactions were executed by Cephus through Sanford on Gloria’s investment account at Charles Schwab & Co. with a loss of over $750,000.

On September 30, 2009, Gloria sued Sanford, Cephus, and Christopher Cooper Young (an employee of Cephus) in the Jefferson Circuit Court. She alleged fraud, negligence, wantonness, breach of contract, breach of fiduciary duty, and- various violations of the Alabama Securities Act. Apparently, Cephus and Young filed a motion to dismiss or, in the alternative, to compel arbitration. Their motion is not included in the materials attached to the petition for the writ of mandamus. On January 20, 2010, Sanford, who was no longer employed with Cephus, filed a Rule 12(b), Ala. R. Civ. P., motion to dismiss the claims against him on the following grounds: (1) lack of personal jurisdiction (Rule 12(b)(2)), and (2) insufficiency of process and insufficient service of process (Rule 12(b)(4) and Rule 12(b)(5), respectively). In the alternative, Sanford sought to join Cephus’s motion to compel arbitration.

Gloria filed a response to Sanford’s motion to dismiss and attached her affidavit regarding Sanford’s contacts with Alabama and statements from her investment account at Charles Schwab & Co. for the period May 2008 to October 2008. Gloria’s response is not included in the materials attached to Sanford’s petition for the writ of mandamus; however, her affidavit and the account statements are attached. The account statements do not indicate that Cephus was paid for its investment advice to Gloria. Gloria’s affidavit provided as follows:

“1. My name is Gloria Lowengart and I make this affidavit based upon my own personal knowledge. I am the plaintiff in the above-styled case. I have lived in Alabama since 2000. I am 82 years of age.
“2. In or about September 2007, my son, defendant Sanford P. Lowengart, III (‘Sandy’), telephoned me at my house in Birmingham, Alabama and solicited me to retain Cephus Capital Management, L.L.C., (‘Cephus’) as my investment advisor. I agreed and executed an Investment Advisory Agreement with Cephus. (See Exhibit 2, Evi-dentiary Submission in Opposition to Defendants’ Motions to Dismiss submitted contemporaneously herewith). Thereafter, Cephus made recommendations to me regarding trades in my Charles Schwab account.
“3. In or about April 2008, Sandy contacted me at my home in Birmingham, Alabama and stated that Cephus and I should terminate the Investment Advisory Agreement, and that instead, I should appoint Cephus as my Power of Attorney to trade securities on a discretionary basis within my Charles Schwab account. I agreed.
“4. On or about May 1, 2008, I wrote a letter of termination to Cephus whereby the Investment Advisory Agreement was terminated. (See Exhibit 8). Thereafter Cephus mailed a Limited Power of Attorney Agreement to me in Alabama, which I executed and returned to Cephus. (See Exhibit 4).
“5. Over the next six months, Ce-phus made 422 transactions within my account, and the total dollar amount of such trades exceeded $3.25 million. (See Exhibit 5). The discretionary trading by Cephus pursuant to the Power of Attorney resulted in a net loss of over $750,000.00 in my account.”

On February 25, 2010, Sanford filed a reply to Gloria’s response.

After a hearing on the motions to dismiss, the trial court entered the following order on March 26, 2010:

“This cause is pending before the Court on Motions to Dismiss by Sanford P. Lowengart, III, Cephus Capital Management, LLC, and Christopher Cooper Young. [Gloria’s] claim arises out of a series of transactions of [Gloria’s] investment account at Charles Schwab pursuant to a Power of Attorney granted by [Gloria]. It is undisputed that [Gloria] is a resident of Alabama and that the Defendants are residents of California. The Defendant, Sanford P. Lowengart, III is the son of Gloria Lowengart and is a founder of Cephus Capital Management, LLC. Christopher Cooper Young is an officer of Cephus Capital Management. Apparently all of the transactions occurred in California; however, it is not clear where the transactions may have originated.
“‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R, Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail, Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins., Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’
“Based upon the pleadings, briefs and arguments of counsel the Court, concludes as follows:
“(1) The Motions to Dismiss as to Sanford P. Lowengart, III and Cephus Capital Management,' LLC are Overruled. A dispositive motion as to the claims against these Defendants may be more appropriately addressed in a Motion for Summary Judgment after discovery.
“(2) The Motion to Dismiss as to the Defendant, Christopher Cooper Young is Granted and said Defendant is Dismissed, without prejudice.
“(8) The Defendants Sanford P. Lowen-gart, III and Cephus Capital Management, LLC are allowed thirty (30) days to answer the complaint.”

On April 13, 2010, the trial court amended its order as follows:

“Upon Motion by the remaining defendants in this matter, Sanford P. Low-engart, III and Cephus Capital Management, LLC, to Amend the .order dated March 26, 2010, Overuling their pre-Answer motions, this Court, without changing its determinations as to the facts or the law, concludes as follows: “(1) The Motions to Dismiss filed pursuant Rule 12(b)(2) by Sanford P. Lowengart, III and Cephus Capital Management, LLC are Overruled. A dispositive motion as to the claims against these Defendants may be more appropriately addressed in a Motion for Summary Judgment after discovery.
“(2) The Motion to Dismiss as tó the Defendant, Christopher Cooper Young is Granted and, said Defendant is Dismissed, without prejudice.
“(3) The Motions to Compel Arbitration ' filed by Sanford P. Lowengart, III and Cephus Capital Management, LLC are Overruled.
“(4) The Defendants Sanford P. Lowen-gart, III and Cephus Capital Management, LLC are allowed thirty (30) days to answer the complaint.”

On April 28, 2010, Sanford timely filed this petition for a writ of mandamus.

Standard of Review

A petition for a writ of mandamus is the appropriate manner in which to chai-lenge an interlocutory order on the issue of personal jurisdiction, and a writ- -will issue only upon a showing of “(a) a clear legal right in the petitioner to the order sought, (b) an, imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.” Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001).

Analysis

“In considering a Rule 12(b)(2), Ala. R. • Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and ‘where the plaintiffs complaint and the defendant’s . affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madam v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). ‘For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].’ Duke v. Young, 496 So.2d 37, 38,(Ala.l986).”

Ex, parte McInnis, 820 So.2d at 798

In Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004), this Court stated:

“[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.’ Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)(citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.l995)(‘When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.’) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).”

A plaintiff may be entitled to discovery on the issue of personal jurisdiction. Ex parte Puccio, 923 So.2d 1069, 1077 (Ala.2005). A plaintiff, however, does not enjoy an automatic right to discovery pertaining to personal jurisdiction in every case. Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459 (Ala.2003). In order to be entitled to jurisdictional discovery, the plaintiff must allege facts that would support a colorable claim of jurisdiction. Id. Discovery will be denied if it is based on bare, attenuated, or unsupported assertions of personal jurisdiction or if the plaintiff’s claim is clearly frivolous. Id. “[T]he discovery to which a plaintiff is entitled in such a situation is only discovery that is relevant to the issue of personal jurisdiction, and the plaintiff is entitled to that discovery only when the plaintiff has offered the court more than conjecture and surmise in support of the jurisdictional theory.” Ex parte Gregory, 947 So.2d 385, 390 (Ala.2006).

In the present case, the trial court apparently concluded that discovery on the issue of personal jurisdiction was necessary to determine whether Sanford’s motion to dismiss should be granted. With regard to discovery, Sanford argues that Gloria makes no mention of what she hopes to find in discovery that will aid her in determining Sanford’s contacts with Alabama and that no evidence exists other than what has already been presented to the trial court regarding Sanford’s contacts with Alabama. “[A] petitioner seeking a 'writ of mandamus to direct the trial court to dismiss an action against the petitioner for want of personal jurisdiction has the burden of establishing a clear legal right to the relief.” Ex parte Duck Boo Int’l Co., 985 So.2d 900, 906 (Ala.2007). We do not have Gloria’s motion in response to Sanford’s motion to dismiss for lack of personal jurisdiction, nor do we have before us the transcript of the hearing on the motion to dismiss. We do not have any discovery sought by Gloria attached to the petition. Additionally, Sanford fails to discuss any caselaw regarding discovery in the context of personal jurisdiction.

Conclusion

Sanford has not made a showing that he has a clear legal right to the relief he seeks at this stage of the proceedings. Accordingly, the petition for the writ of mandamus is denied.

PETITION DENIED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.

      . Sanford attaches to his petition a letter he wrote to Gloria and signed as a principal in Cephus, which he says in his brief was not before the trial court when the motion to dismiss-was filed.