author: MOORE, Judge.

text:
    Sarah NELSON v. ESTATE OF Wiley NELSON, Jr.
    2080989.
    Court of Civil Appeals of Alabama.
    Jan. 29, 2010.
    Rehearing Denied March 5, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1090818.

      Jim L. DeBardelaben, Montgomery, for appellant.
    Ed Parish, Jr., of The Parish Law Firm, Montgomery, for appellee.
   MOORE, Judge.

Sarah Nelson (“Sarah”) appeals from a summary judgment entered in favor of the estate of Wiley Nelson, Jr. (“the estate”). We affirm.

Procedural Background

This is the second time these parties have been before us. See Nelson v. Estate of Nelson, 10 So.3d 603 (Ala.Civ.App.2008). In Nelson, we stated the following:

“Sarah Nelson (‘the widow’), the widow of Wiley Nelson, Jr. (‘the decedent’), appeals a judgment as a matter of law entered in favor of Albert Foster, Jr., and Jacques Marsh, the decedent’s nephews. We dismiss the appeal.
“On July 13, 2007, the widow filed a petition to remove the administration of the estate of the decedent from the Montgomery Probate Court to the Montgomery Circuit Court, pursuant to § 12-11-41, Ala.Code 1975. Although the circuit court did not enter an order removing the administration of the estate from the probate court, on December 18, 2007, the widow gave notice to the circuit court that she was dissenting from the will and was claiming a ‘spouse’s share.’ On January 22, 2008, Foster and Marsh filed a motion in the circuit court seeking a judgment declaring the validity of a postnuptial agreement that had been entered between the widow and the decedent. They also sought a determination of the validity of an inter vivos transfer of certain property from the decedent to Foster and Marsh. On February 7, 2008, the widow requested a trial by jury.
“The case was called for trial in the circuit court on March 31, 2008, and, at the conclusion of the presentation of Foster and Marsh’s evidence, the circuit court entered a judgment as a matter of law in favor of Foster and Marsh and ‘dismissed [the case,] with prejudice.’ The widow timely filed her notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).”

10 So.3d at 604-05 (footnote omitted). Because the circuit court had failed to remove the matter from the probate court to the circuit court, we concluded that the judgment entered by the circuit court was void for lack of subject-matter jurisdiction. Because a void judgment will not support an appeal, we dismissed Sarah’s appeal. Id. at 605.

After the dismissal of Sarah’s appeal, the circuit court ordered the proceeding regarding the administration of the estate removed from probate court to the circuit court. The estate then moved for a summary judgment, asserting that the post-nuptial agreement entered into by Sarah and Wiley Nelson, Jr. (“Wiley”), approximately eight months after they married was valid. In support of that motion, the estate submitted a copy of the postnuptial agreement, purportedly executed by Sarah and Wiley on April 13, 1985; an affidavit from Wayne Sabel, the attorney who had drafted the postnuptial agreement and who had purportedly witnessed Sarah and Wiley execute the agreement; copies of two notification forms in which Sarah acknowledged that Wiley had not named her as a beneficiary of the survivor benefits available under his retirement plan; a copy of Wiley’s last will and testament in which he omitted Sarah as a beneficiary because, he indicated, of the postnuptial agreement; an affidavit from Jim Wilson, Jr,, the attorney who had drafted Wiley’s last will and testament; and a copy of the August 27, 2003, warranty deed by which Wiley had conveyed Sarah and Wiley’s marital home to his nephews, Albert Foster, Jr., and Jacques Marsh. The estate indicated that it was also submitting to the circuit court a copy of a “Response to Notice of Eviction Action,” but no such document was included in the record on appeal.

Sarah opposed the estate’s summary-judgment motion. In her brief filed in opposition to that motion, she denied any recollection of signing the postnuptial agreement and she challenged the validity of the attorney’s notarization of the post-nuptial agreement because he had failed to maintain a notary register of his official acts, as required by Ala.Code 1975, § 36-20-7. She also argued that, if her signature was deemed valid on the postnuptial agreement, then the postnuptial agreement was not fair, just, and equitable from her point of view; Sarah asserted that the consideration recited in the postnuptial agreement was insufficient to support that agreement. Further, Sarah denied having had full knowledge of Wiley’s estate or knowledge of the estate’s full value, and she denied receiving independent legal advice at the time the alleged postnuptial agreement had been signed. In support of her opposition, Sarah submitted as an exhibit the transcript of the March 31, 2008, trial held before the circuit court. The estate raised no objection to the admissibility of that exhibit.

On June 23, 2009, after hearing arguments on the motion, the circuit court entered a summary judgment in favor of the estate. Sarah timely appealed to the Alabama Supreme Court, challenging whether the estate had met its burden of proof; the appeal was transferred to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Factual and Evidentiary Background

The evidence before the circuit court established the following. Sarah holds a master’s degree and is retired from the Alabama Department of Education. At the time of the March 2008 trial, she was receiving retirement benefits and Social Security benefits and she was participating in the Deferred Retirement Option Plan for state employees.

Sarah and Wiley married on July 31, 1984, and Sarah gave birth to their child shortly thereafter. At the time of the marriage, Sarah owned real property located at 914 Hill Street and Wiley owned real property located at 2300 Chappell Drive. The property owned by Sarah was located virtually next door to the property owned by Wiley.

The postnuptial agreement at issue in this case was purportedly executed on April 13, 1985. That agreement provided, in pertinent part:

“2. Husband and wife desire to define their respective rights in property acquired before and after, marriage.
“3. Husband and wife desire to define their marital property rights.
“4. Both husband and wife had in his or her own right certain real and personal property at the time of their marriage.
“5. Before their marriage to each other and in consideration thereof, husband and wife agreed verbally with each other that none of their respective property rights should in any way become affected or changed in any way by reason of their marriage.
“6. Both husband and wife consider themselves independent of the other from a financial perspective, and wish to protect the interest of their respective children born as a result of prior marriages with other persons.
“7. This instrument was entered into orally prior to the marriage of the parties, and is now reduced to writing in order to comply with the laws in such cases made and provided, and in order that there may be no misunderstanding of the terms and conditions of the contract property settlement. It was entered into by each party with full knowledge on the part of each of the extent and probable value of all the property, or estate, of the other, and of all the rights that, but for this agreement, would be conferred by law on each of them in the property, or estate, of the other, by virtue of the solemnization of the proposed marriage. It was and is the express desire of both of the parties that their respective rights in each other’s property, or estate, of whatsoever character it may be, real, personal, mixed, contingent, or otherwise, shall be determined and fixed by this agreement, as reduced to writing, expressing the oral contract and agreement prior to marriage as mentioned above, and not otherwise.
“For the reasons cited above, and in consideration of the mutual covenants contained herein, husband and wife agree one with the other as follows:
“Section One
“PROPERTY ACQUIRED BEFORE MARRIAGE
“All property owned by either husband or wife prior to marriage, specifically including those items listed in Exhibit A attached hereto, shall remain the separate property of the party to whom the property belonged before marriage.
“SECTION TWO
“AFTER-ACQUIRED PROPERTY
“All property acquired after the marriage of the parties shall be the separate property of the party acquiring the property, with all rights, title, and interest exclusively in that party.
“SECTION THREE
“RELEASE OF MARITAL RIGHTS
“Each party shall have no rights or interest in separate property of the other, and each waives and releases all marital property rights in the other’s estate that he or she might otherwise have or obtain, and on the death of husband or wife, the decedent’s property shall pass by will or intestate succession to decedent’s heirs as if the marriage between husband and wife had never occurred.
“Each of the parties has made a full disclosure to the other party of all property owned or otherwise held by each respective party, as is shown in exhibit A attached hereto.
“The parties acknowledge that they, and each of them, have been represented by counsel of their choice in preparation of this agreement, that their rights in the property described in this agreement have been fully explained to them, that the legal effect of this agreement has been fully explained to them, and that they understand the terms, provisions, and legal effect of this agreement.”

Exhibit A was attached to the postnuptial agreement and provided:

“1. The following property is owned by husband alone:
“A. Real property located at 2300 Chappell Drive, Montgomery, Alabama.
“B. Real Property located at 2713 Dorothy Street, Montgomery, Alabama.
“C. All retirement benefits and disability benefits.
“D. Household goods, appliances and personal effects.
“2. The following property is owned by the wife alone:
“A. Real property located at 914' Hill Street, Montgomery, Alabama.
“B. Household goods, appliances and personal effects.”

Wayne Sabel, the attorney who notarized the postnuptial agreement, testified that he did not specifically recall the execution of the postnuptial agreement or the parties to that transaction. Sabel did testify that he would not have notarized any agreement, including the postnuptial agreement, unless the parties to that agreement had executed it in his presence. He also testified that he would not have allowed a party to sign a postnuptial agreement if he or she had had any questions about it or had expressed concerns or seemed uncomfortable with it. Sabel identified a letter dated April 15, 1985, addressed to Wiley and Sarah at 2300 Chappell Drive, as having been written on his letterhead and bearing his signature. In that letter, Sabel had stated: “Enclosed you will find the original agreement executed in my office on April 13,1985.”

On September 15, 1985, and again on September 23, 1985, Sarah executed forms acknowledging that Wiley had not designated her as a beneficiary under his retirement plan. Sabel had witnessed one of those acknowledgments. Sarah did not dispute the validity of her signature on those acknowledgment forms.

Wiley executed his last will and testament on February 12, 2003. Included in that will was a clause indicating that “[m]y wife ... is not included as a beneficiary of this will as authorized by a written agreement between myself and my said wife dated April 13, 1985. It is my intent that my said wife take nothing under my will and that she not share in my estate.”

Wiley conveyed the Chappell Drive property to his nephews on August 27, 2003. Sarah did not join in the deed conveying that property to Wiley’s nephews. Wiley died on May 15, 2006. The nephews apparently began eviction proceedings against Sarah shortly thereafter.

At the March 2008 trial, Sarah testified that she did not recall signing a postnup-tial agreement. She denied that she had gone to attorney Sabel’s office to review or to execute such an agreement. She claimed that she had learned of the existence of that postnuptial agreement after Wiley’s death, when someone put a copy of it in her mailbox. Sarah, however, acknowledged that, in an earlier pleading filed in response to the nephews’ eviction notice, she had admitted signing the post-nuptial agreement. Sarah also admitted knowing that Wiley’s nephews had been involved in or responsible for the payment of the homeowners’ insurance on the Chappell Drive property even before Wiley’s death.

Standard of Review
“ ‘ “We review the trial court’s grant or denial of a summary judgment motion de novo.” Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bookman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if 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. If the movant meets this initial burden, the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993).’ ”

Harris v. Health Care Auth. of Huntsville, 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008)).

Analysis

“[Ajntenuptial agreements are valid in Alabama. However, courts scrutinize such agreements to determine whether they are just and reasonable.” Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980) (citation omitted). Prenuptial and postnuptial agreements are scrutinized by the same standards. Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). In Barn-hill, supra, this court required the party seeking to enforce an antenuptial agreement — in that case, a husband seeking to enforce a prenuptial agreement — to show that the entire transaction was fair, just, and equitable from the wife’s point of view or that the agreement had been freely and voluntarily entered into by the wife, with competent independent advice and with full knowledge of her interest in the estate and its approximate value. Id. at 751. “Meeting the requirements of either of the above tests is sufficient to give effect to an antenuptial agreement.” Id.

On appeal, Sarah asserts that the estate failed to meet either of those tests. As a result, she asserts, the deed from Wiley conveying the marital residence to the nephews was invalid.

Although not identified as a separate issue in her brief, Sarah appears to challenge the validity of her signature on the postnuptial agreement. We address that claim first. In her opposition to the summary-judgment motion, Sarah denied any recollection of having signed the post-nuptial agreement. Sarah also argues that the attorney who witnessed the execution of the postnuptial agreement failed to maintain a “fair register” of his official acts, as required by Ala.Code 975, § 36-20-7. That Code section provides that “[e]ach notary public must keep a fair register of all his official acts and give a certified copy therefrom, when required, on payment of his legal fees.”

In the transcript of the March 31, 2008, trial, however, Sarah acknowledged that, in a pleading filed in response to the nephews’ attempts to evict her, she had admitted signing the postnuptial agreement. Even construing that testimony in favor of Sarah, the nonmovant, the circuit court had before it undisputed evidence indicating that Sarah’s signature on the postnup-tial agreement was valid.

Sarah next argues on appeal that, in the postnuptial agreement, Wiley failed to provide her with adequate consideration to support the agreement. In support of this argument, she relies on Ala. Code 1975, § 3(M-1, to argue that a husband has no claim and acquires no interest in any property owned by his wife before the marriage or acquired by the wife during the marriage. Section 30-4-1 provides that “[a]ll property of the wife, held by her previous to the marriage or to which she may become entitled after the marriage in any manner, is the separate property of the wife and is not subject to the liabilities of the husband.” Under her interpretation of the law, Sarah claims that Wiley had no right to any property she owned at the time they married or at the time the post-nuptial agreement was executed and, thus, that Wiley gave up nothing of value in the postnuptial agreement. Sarah cites no cases in support of her interpretation of § 3CM-1, and, as discussed below, we reject it.

This court routinely affirms equitable divisions of marital property in which assets either owned by the wife before the marriage or acquired by the wife during the marriage have been used for the benefit of the marriage. See, e.g., Ala.Code 1975, § 30-2-51 (discussing, among other things, property divisions). See also Nichols v. Nichols, 824 So.2d 797 (Ala.Civ.App.2001) (although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during the marriage); and Ex parte Yost, 775 So.2d 794 (Ala.2000) (money inherited from mother of divorcing wife constituted marital property subject to division, where the wife combined inherited money with other funds in account held jointly by husband and wife).

At the March 2008 trial, Sarah testified that she and Wiley had used her previously owned real property as rental property and that they had used the rental income to pay their household expenses. Thus, but for the existence of the postnuptial agreement, Wiley arguably would have obtained rights to Sarah’s previously owned real property.

The court in Barnhill also recognized that marriage, under appropriate circumstances, may be sufficient consideration for an antenuptial agreement. 386 So.2d at 751. “This is particularly true when other factors are present such as the husband’s relinquishment of any rights that he might have in the wife’s estate.” Id. See also Mayer v. Mayer, 628 So.2d 744 (Ala.Civ.App.1993) (discussing enforceability of antenuptial agreements); and Mixon v. Mixon, 550 So.2d 999, 1000 (Ala.Civ.App.1989) (accord).

In this case, Sarah and Wiley executed the postnuptial agreement eight and one-half months after they married. Thus, the delay between the marriage and the execution of the postnuptial agreement in this case falls between the delay discussed in Tibbs v. Anderson, 580 So.2d at 1338 (wife signed postnuptial agreement two hours after marriage ceremony; marriage found to be consideration for that agreement), and the delay in Mayer v. Mayer, 628 So.2d 744 (Ala.Civ.App.1993) (parties executed postnuptial agreement after 12 years of marriage; marriage found not to be consideration for that agreement). In the postnuptial agreement, Wiley and Sarah acknowledged that they had contemplated such an agreement before their marriage. We conclude that the marriage between Wiley and Sarah was not so far removed from the date of the execution of the post-nuptial agreement as to prevent the marriage from serving as partial consideration for the postnuptial agreement. See Barnhill, 386 So.2d at 751.

As discussed above, Wiley and Sarah also relinquished any claim they might have had to the other’s separately owned property. Relinquishment to each other’s estate also served as adequate consideration for the agreement. Id. For these reasons, Sarah’s argument that the post-nuptial agreement failed for lack of consideration is without merit.

As for the evidence necessary to establish that the postnuptial agreement was enforceable, we find substantial evidence in the record to support the trial court’s judgment under the second test of Barn-hill, supra. As stated above, Sarah admitted that she executed the agreement. In that agreement, Sarah and Wiley acknowledged

“that they, and each of them, have been represented by counsel of their choice in preparation of this agreement, that their rights in the property described in this agreement have been fully explained to them, that the legal effect of this agreement has been fully explained to them, and that they understand the terms, provisions, and legal effect of this agreement.”

Further, at the March 2008 trial, Sarah testified that she would not have signed such an agreement without seeking independent legal advice. Sarah admitted signing the agreement. Thus, Sarah’s own testimony offers some support for the inference that she sought and obtained legal advice before executing the postnuptial agreement.

Even if Sarah did not obtain legal advice before signing the postnuptial agreement, that is, in our opinion, of no consequence here. See Brown v. Brown, 26 So.3d 1210, 1214 (Ala.Civ.App.2007), aff'd, 26 So.3d 1222 (Ala.2009) (citing Strait v. Strait, 686 So.2d 1230, 1234 (Ala.Civ.App.1996)) (wife was not entitled to relief from antenuptial agreement simply because she claimed she failed to consult with her lawyer). Sarah does not allege that fraud or duress was involved in the execution of the agreement or that she was in any way prevented from seeking legal counsel. Thus, if she did not consult with a lawyer, that was of her own choosing. Additionally, Sarah was highly educated and, as such, cannot be relieved of her legal contracts on the basis of failing to protect her own interests. Alabama law provides that

“ ‘in the absence of fraud or misrepresentation, a party is bound by the terms of a contract, even if he fails to read it. The law is equally clear that ordinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby.’ ”

Brown, 26 So.3d at 1214 (quoting Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991)). Sarah cannot seek to avoid the legal effect of her own contractual agreement by claiming that she failed to seek legal advice when she represented in the agreement that she had done so.

We also find substantial evidence to establish that Sarah had knowledge of Wiley’s estate and the approximate value of that estate. Sarah has not alleged that Wiley failed to disclose any other substantial assets to her, and the only property at issue in this case was the real property located at 2300 Chappell Drive. That property was expressly disclosed to Sarah in the postnuptial agreement. Further, Sarah acknowledged in the agreement that full disclosure of the Wiley’s estate had been made to her and that she was aware of the approximate value of that estate. Therefore, she is bound by the representations contained in that agreement. See Brown, supra. Moreover, this court has required only that the party against whom the agreement is being enforced have a general knowledge, not a full knowledge, of the other’s estate. Id. at 1213 (citing Barnhill, 386 So.2d at 752). The record indicates that Sarah had a general knowledge of Wiley’s estate.

For the above-stated reasons, we conclude that the record contains evidence sufficient to establish the enforceability of the postnuptial agreement under the second test stated in Barnhill, supra. The evidence before the circuit court was sufficient to establish that Sarah freely and voluntarily entered into the agreement, that she was provided an opportunity to obtain competent legal advice, and that she had knowledge of her interest in Wiley’s estate and knowledge of the approximate value of Wiley’s estate. We further conclude that Sarah did not present substantial evidence creating any genuine issue of material fact regarding the enforceability of the postnuptial agreement.

Sarah next argues that Wiley’s 2003 deed conveying the marital residence on Chappell Drive to the nephews was invalid because the postnuptial agreement was invalid. We have already concluded that the postnuptial agreement was valid and enforceable, thus, we summarily reject that argument.

In support of her argument, however, Sarah relies on Goodwin v. Goodwin, 592 So.2d 212 (Ala.1991). Although in the circuit court and on appeal Sarah argued only that the conveyance was invalid because the postnuptial agreement was invalid — an argument we have already rejected and an argument not at issue in Goodwin, supra — our supreme court in Goodwin granted the widow in that case the relief she sought on appeal. Therefore, we address Goodwin out of an abundance of caution.

In Goodivin, the husband and the wife executed a prenuptial agreement; in that agreement, the wife was granted a life estate in any home the husband owned in which she and the husband lived at the time of the husband’s death. Id. at 213. In that agreement, the wife also specifically waived certain rights granted to her pursuant to Ala.Code 1975, § 43-8-72, which the parties referred to as “spousal rights.” Id. Before his death, the husband conveyed the marital home to his sons from a previous marriage; the wife did not join in that conveyance. Upon the husband’s death, the wife filed an action to set aside that conveyance. Id. The trial court entered a summary judgment in favor of the sons, concluding that the wife had waived her rights via the prenuptial agreement. Id. The wife appealed, and our supreme court reversed. Id. at 215.

The supreme court in Goodwin stated:

“It is clear from the wording of Paragraph 2 of the antenuptial agreement that it was the intention of these parties when they signed this antenuptial agreement that [the wife] have a life estate in the homestead property. It is equally clear that it was not the intention of the parties in signing this antenuptial agreement that [the wife] would waive her right under § 6-10-3 to dissent from a conveyance of the homestead.
“The trial court reasoned that because one does not obtain a spouse’s right to dissent from a conveyance of the homestead until one becomes a spouse, [the wife] meant to waive her right to consent to the conveyance of the homestead by signing the antenuptial agreement. We can not agree that this is what the two intended. Why would [the wife] waive, in paragraph 4, the right to continue to live in the homestead specifically set aside to her in paragraph 2?
“Furthermore, the waiver of spousal rights under paragraph 4 specifically refers to the waiver of spousal rights as being given ‘[p]ursuant to the authority of Section 43-8-72 of the Code of Alabama 1975, as amended....’”

592 So.2d at 214. The supreme court identified the spousal rights at issue in § 43-8-72 as the wife’s right to an elective share, the right to seek a homestead allowance, and the right to claim exempt property and a family allowance — rights that would arise and attach to the wife only upon the death of the husband. Id. at 215. The court recognized, however, that, by executing the prenuptial agreement, the wife had not waived her rights as a wife during the lifetime of the husband. Id. The court further noted that, although the prenuptial agreement at issue specifically referenced the wife’s rights pursuant to § 43-8-72, that agreement did not mention Ala.Code 1975, § 6-10-3. Id. For those reasons, the supreme court concluded that the wife was entitled to challenge the husband’s conveyance of the marital home made without her consent; the court reversed the summary judgment entered in favor of the husband’s sons.

We find Goodwin, supra, distinguishable from the instant case. First, in the premarital agreement in Goodwin, the wife was granted a life estate in the marital home while, in this ease, Sarah was not. Thus, the wife in Goodwin had spousal rights to the marital home that survived the prenuptial agreement and survived the husband’s death; in this case, Sarah had no rights to the marital residence that survived beyond the execution of the post-nuptial agreement. Further, the language of the postnuptial agreement at issue in this case was broader than the language of the agreement at issue in Goodwin, supra. The wife in Goodwin waived only those rights that accrued to her at her husband’s death pursuant to § 43-8-72. In this case, Sarah and Wiley agreed that their separate property would pass “as if the marriage between [Wiley and Sarah] had never occurred.” By virtue of the binding postnuptial agreement, Sarah agreed that she would acquire no claim or rights as a spouse in Wiley’s property. Thus, Sarah waived her right to dissent, under Ala. Code 1975, § 6-10-3, from the conveyance of the marital residence without her signature.

For the foregoing reasons, the circuit court’s judgment is due to be affirmed.

AFFIRMED.

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

      . The clerk’s record is numbered sequentially and no pages appear to be missing.

      . See 32A CJ.S. Evidence § 863 (2007) (recognizing that when proceedings are void, the record of such proceedings is inadmissible). Because no objection to the exhibit was raised, however, the circuit court was free to consider the transcript submitted by Sarah.

      . The circuit court erroneously dated that judgment July 9, 2009, and the circuit court purported to enter a corrective final judgment on June 24, 2009. Rule 58, Ala. R. Civ. P., however, governs the date of entry of the circuit court’s judgment. Because the circuit court’s initial summary judgment was entered into the State Judicial Information System on June 23, 2009, that judgment is the final judgment in this case.

      . The estate submitted a copy of that pleading as an exhibit at the March 31, 2008, trial and those documents were before this court in the earlier appeal. The exhibits filed in that earlier appeal were destroyed after an appropriate amount of time. The estate also indicated that a copy of this pleading had been submitted to the circuit court in support of its summary-judgment motion; however, that document is not found in the record. We have no indication whether it was, in fact, before the circuit court. Sarah's testimony regarding that document and her admission that, in it, she had acknowledged her signature on the postnuptial agreement, however, were before the circuit court.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Michael D. BROOKS v. FRANKLIN PRIMARY HEALTH CENTER, INC., and Charles White.
    2081039.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Rehearing Denied July 9, 2010.

      Willie J. Huntley, Jr., of The Huntley Firm, P.C., Mobile, for appellant.
    Matthew C. McDonald and Kirkland E. Reid of Jones, Walker, Waechter, Pointev-ent, Carrere & Denegre, LLP, Mobile, for appellees.
   THOMPSON, Presiding Judge.

Michael D. Brooks appeals from a summary judgment entered in favor of his former employer, Franklin Primary Health Center, Inc. (“Franklin Health”), and its chief executive officer, Charles White (hereinafter referred to collectively as “Franklin”). Brooks appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The record tends to indicate the following. Brooks is an obstetrician-gynecologist (“OB-GYN”). He practiced medicine in Michigan and with the United States Navy. In late 2002, Franklin, through a national recruiting agency, recruited him to come to Mobile. Because of problems Brooks had in obtaining a medical license in Alabama, he did not begin working for Franklin until March 26, 2003. Brooks entered into an employment agreement (“the original agreement”) with Franklin that became effective on March 26, 2003. Pursuant to the original agreement, Brooks was to be paid an annual base salary of $190,000. However, the original agreement also provided that Franklin and Brooks “may, from time to time, reflect increases or decreases in [Brooks’s] Base Salary as may be mutually agreed upon.” The original agreement provided that any such salary change constituted an amend-merit to the agreement and would supersede Brooks’s original base salary of $190,000. The original agreement further provided that Brooks was to see an average of 25 patients per working day. It did not specify the number of babies Brooks was to deliver during any given period.

By December 2003, low productivity in Franklin Health’s OB-GYN department was causing a decline in the department’s revenue. The members of the administration of Franklin Health and the physicians working in the OB-GYN department, including Brooks, held discussions to address the low productivity. The discussions eventually resulted in a December 17, 2003, letter agreement (“the letter agreement”) that established a target of 20 deliveries each month by each OB-GYN on staff, as well as the nurse midwife on staff, to ensure that the OB-GYN department was financially viable. The letter agreement also stated that, because the department had not been meeting that target, Franklin had “no choice but to reduce [Brooks’s] annual salary from $190,000 to $150,000 effective 01/01/2004.” If the number of deliveries reached the target number of 20, Brooks’s annual salary would be readjusted to $190,000. However, the letter agreement continued, if the number of deliveries remained below 20, Franklin “reserve[d] the right to take further action.” The letter agreement stated that, if Brooks agreed to the salary reduction, he was to sign the letter and return it to White by December 31. Brooks did so.

After the parties entered into the letter agreement, Franklin Health’s OB-GYN department consistently failed to reach its target number of deliveries. In addition, evidence was submitted indicating that Brooks was not meeting the requirement set forth in the original agreement that he see an average of 25 patients per day. On March 10, 2004, Franklin notified the physicians and nurse midwife in the OB-GYN department that the obstetrics program was being terminated as of May 1, 2004, because Franklin could no longer afford to keep it operating. Brooks acknowledged that he never made more than 15 deliveries a month during his tenure with Franklin Health.

The original agreement provided that Franklin and Brooks had the right to terminate the original agreement upon four months’ written notice. However, the original agreement also allowed Franklin to terminate Brooks’s employment upon two weeks’ notice if Brooks failed to fulfill the terms of the original agreement. The March 10, 2004, letter stated that the notice of approximately seven weeks was more than the two weeks’ notice required to terminate the employment of the OB-GYN providers for cause.

In a letter dated April 23, 2004, Franklin offered to allow Brooks to continue working until May 31, 2004. During that time, Brooks would provide gynecological services and prenatal care to Franklin Health’s patients. His salary for that month would be equal to the monthly salary he was receiving while earning $150,000 annually. Brooks did not accept the offer. Instead, immediately upon the closing of the OB-GYN department, Brooks began working at the OB-GYN department of the Greater Mobile Physicians Group.

In October 2004, Brooks sent a letter to Franklin alleging that he had been wrongfully terminated and demanding a settlement. Brooks and Franklin could not resolve their dispute, and Brooks filed this action on November 19, 2007, alleging claims of breach of contract and fraud. After discovery was completed, Franklin filed a motion for a summary judgment on both claims. The trial court granted the motion and entered the summary judgment in favor of Franklin. Brooks appeals.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Brooks argues that the summary judgment on the breach-of-contract claim was improper because, he says, genuine issues of material fact exist as to whether he fulfilled his obligations under the terms of the agreements and whether Franklin properly terminated his employment for cause. In support of his argument, Brooks contends that Franklin violated its obligation of good faith and fair dealing under the agreements by failing to disclose to Brooks that the average number of deliveries per physician or midwife had been below 20 before he signed the original agreement and that there had been a “radical” change in the method of payment to providers involving millions of dollars, which had a direct financial impact on Franklin.

Brooks acknowledged that he did not see an average of 25 patients a day, as required by the original agreement, but, he says, that was because fewer than 25 patients came to the OB-GYN department each day. He said that the agreements did not require him to conduct any marketing or otherwise make attempts to draw patients to Franklin Health, and, he said, it was not his responsibility to increase patient numbers.

We note that the trial court did not set forth the grounds upon which it entered the summary judgment. In its motion for a summary judgment, Franklin argued that because Brooks turned down Franklin’s offer to stay an additional month after the obstetrics program closed, and instead immediately took a job as an OB-GYN at another facility in Mobile, Brooks suffered no damages.

Proof of the damages resulting from a defendant’s alleged breach of contract is a required element in a breach-of-contract claim. See Shaffer v. Regions Fin. Corp., 29 So.3d 872 (Ala.2009) (quoting Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002)) (“‘The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.’ ”). In submitting evidence indicating that Brooks had immediately begun working with the Greater Mobile Physicians Group after leaving Franklin Health, Franklin presented substantial evidence indicating that Brooks was unable to prove damages in this case. Brooks failed to submit any evidence to the contrary. However, Brooks’s failure to submit evidence of damages is, alone, an insufficient basis for the summary judgment.

“Alabama law provides for nominal damages if a breach of contract is proven, even if a breach-of-contract plaintiff cannot prove actual damages. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 128 (Ala.1989) (‘It is well settled, however, that once a breach of contract has been established, as it was in this case, the nonbreaching party is entitled to nominal damages even if there was a failure of proof regarding actual damages.’); see also James S. Kemper & Co. Southeast, Inc. v. Cox & Assocs., Inc., 434 So.2d 1380, 1385 (Ala.1983) (‘When the evidence establishes a breach, even if only technical, there is nothing discretionary about the award of nominal damages.’). Thus, even if Jones and the companies failed to present substantial evidence of actual damages, Hamilton would not be entitled to a summary judgment on the breach-of-contract claim on that ground.”

Jones v. Hamilton, 53 So.3d 134, 142 (Ala.Civ.App.2010). Accordingly, the summary judgment on Brooks’s breach-of-contract claim could not properly be entered on the basis of Brooks’s apparent lack of damages alone.

In its summary-judgment motion, Franklin also argued that, in signing the letter agreement, Brooks had agreed that, if the OB-GYN department’s productivity did not improve, Franklin could take further action. Franklin appears to argue that, when it did take further action by closing the department, it had cause to terminate Brooks’s employment. Therefore, Franklin asserts, it was required to give only two weeks’ notice to Brooks of the decision to terminate his employment under the agreements.

The evidence is undisputed that, after the parties entered into the letter agreement, the productivity of the OB-GYN department did not improve, and Franklin made the decision to close that department. Franklin appears to argue that, because of the lack of productivity on the part of the physicians and the midwife in the OB-GYN department, it had cause to terminate Brook’s employment under the agreements. Because Brooks’s employment was terminated for cause, Franklin says, the seven weeks’ notice it provided to Brooks regarding the closure of the OB-GYN department was more than adequate under the terms of the original agreement, which required only two weeks’ notice of termination for cause.

Franklin’s argument does not address the question whether its decision to close the OB-GYN department because a sufficient number of patients were not being treated at Franklin Health’s facility constituted a breach of the original agreement. Brooks correctly points out that the original agreement did not require him to participate in marketing efforts. In his deposition, White acknowledged that Brooks was hired to work as an OB-GYN and that he was not required to participate in marketing or to make management decisions. Franklin offered no factual or legal explanation as to how Brooks breached the original agreement if he was not responsible for drawing 25 patients per day to Franklin Health for treatment. Furthermore, Franklin did not present any factual basis or legal authority for its assertion that, if the OB-GYN department was not financially viable, it could terminate Brooks’s employment for cause. Franklin also failed to demonstrate that, even if Brooks had accepted the month-long extension to stay at the Franklin Health facility as a gynecologist, the decision to end his employment years before the end of the term set forth in the original agreement did not constitute a breach of that agreement. Furthermore, although the letter agreement stated that if the productivity of the OB-GYN department did not improve Franklin could take “further action,” there is no evidence indicating that the parties contemplated that “further action” meant terminating the original agreement. In short, Franklin’s motion and supporting documentation failed to show that it was entitled to a summary judgment.

“ ‘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).” Nance v. Southerland, [Ms. 2080746, Jan. 29, 2010] — So.3d -, - (Ala.Civ.App.2010).

Based upon the record before us, we conclude that Franklin failed to meet its burden to make a prima facie showing that there is no genuine issue of material fact and that it was entitled to a judgment as a matter of law on Brooks’s breach-of-contract claim. Accordingly, the trial court erred in entering the summary judgment in favor of Franklin on that claim.

Brooks also contends that the fraud claim against Franklin was not barred by the applicable statute of limitations, the basis upon which Franklin had sought a summary judgment as to that claim. Therefore, Brooks says, the trial court erred in entering the summary judgment. In support of his contention, Brooks argues that he did not discover Franklin’s alleged fraud until an unspecified time in November 2005. This action was filed on November 19, 2007.

Fraud claims are subject to a two-year statute of limitations. § 6-2-38(1), Ala.Code 1975.

“ ‘That statute of limitations is subject to the “saving clause” provided by § 6 — 2—3[, Ala.Code 1975]:
“ ‘ “In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.” ’
“Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000). Section 6-2-3, Ala.Code 1975, supplies an objective test, tolling the statute of limitations on a fraud claim until the aggrieved party discovers or, in the exercise of reasonable care, should have discovered, the facts constituting the fraud. Seabol, 782 So.2d at 216; Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997). Therefore, the limitations period commences when the plaintiff discovers the fraud or when facts are known ‘“which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry.’ ” Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1195 (Ala.2001) (quoting Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d 485, 488 (Ala.1977)).”

Wheeler v. George, 39 So.3d 1061, 1081 (Ala.2009).

Brooks’s employment with Franklin ended on May 1, 2004. Therefore, any alleged fraud had to have occurred before that date. In his deposition, Brooks stated that he knew by October 14, 2004, that his employment with Franklin Health had ended, that he could not hope to regain his position at Franklin Health, and that Franklin would not “perform [its] duties under the [employment] contract.” Brooks does not indicate the facts or information he allegedly learned of after October 14, 2004, that would bring his fraud claim within the tolling provision of § 6-2-3, Ala.Code 1975. “If it appears that the statutory period has expired, then the party bringing the fraud action has the burden of demonstrating that it comes within the purview of § 6-2-3. Hicks v. Globe Life & Accident Ins. Co., 584 So.2d 458 (Ala.1991). ” Chambless-Killingsworth & Assocs., P.C. v. Osmose Wood Preserving, Inc., 695 So.2d 25, 27 (Ala.Civ.App.1996). Brooks has failed to meet that burden.

Therefore, giving Brooks the benefit of the doubt by assuming that October 14, 2004, was the latest possible date on which he knew or should have known of fraudulent acts by Franklin relating to his employment, the statute of limitations as to the fraud claim would have expired on October 14, 2006, more than a year before he filed this action in November 2007. We conclude that Brooks failed to present a genuine issue of material fact regarding the limitations period as to the fraud claim and that, therefore, Franklin was entitled to a judgment as a matter of law on the basis that Brooks filed the fraud claim after the applicable limitations period had run. Accordingly, the summary judgment in favor of Franklin on the fraud claim is affirmed.

For the reasons set forth above, that portion of the summary judgment entered in favor of Franklin on Brooks’s breach-of-contract claim is reversed, and the cause is remanded for further proceedings; that portion of the summary judgment entered in favor of Franklin on Brooks’s fraud claim is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . The record indicates that Brooks’s licensing problem arose from concerns about the number of malpractice actions that had been lodged against him. Franklin interceded on behalf of Brooks. In White's deposition submitted in support of Franklin's motion for a summary judgment, he testified that Franklin had used its “influence” to have the licensing authority reconsider its initial decision to deny Brooks a license to practice medicine in Alabama. Brooks was eventually granted a license.


author: PITTMAN, Judge.

text:
    JOHN HOWARD HOMES, LTD. v. Joel B. WITTMANN.
    2090051.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Rehearing Denied May 21, 2010.
    Certiorari Denied July 30, 2010 Alabama Supreme Court 1091229.

      Jene W. Owens, Jr., of Howard & Owens, Mobile, for appellant.
    John W. Parker, Daphne, for appellee.
   PITTMAN, Judge.

This appeal concerns the denial of a motion to compel arbitration of claims brought by Joel B. Wittmann against John Howard Homes, Ltd. (“John Howard”), in the Mobile Circuit Court. In his complaint, filed in December 2008, Wittmann asserted that representatives of John Howard asserted that a particular residential lot owned by John Howard that Witt-mann was considering purchasing would remain level and that the topography of the lot was no different than the topography of other contiguous lots; Wittmann further alleged that John Howard had lowered the subject lot after he had purchased it and had subsequently caused nearby lots to be elevated and filled so as to cause water to be diverted or channeled onto Wittmann’s lot. Wittmann’s complaint set forth claims of fraud, negligence, wantonness, and continuing trespass stemming from the alleged conduct of John Howard in marketing, selling, constructing, and attempting to repair the dwelling constructed on Wittmann’s lot.

In January 2009, John Howard filed a motion seeking the issuance of an order staying the action and compelling arbitration of Wittmann’s claims. In support of its motion, John Howard submitted several documentary exhibits, including a purchase agreement dated February 20, 2005, that expressly incorporated an addendum that contained the following pertinent clause:

“Any controversy or claim arising from or relating to this agreement, or the breach thereof, or any and all claims arising between [John Howard] and [Wittmann], their successors, or assigns shall be settled by arbitration in accordance with ... the arbitration clause in the 2-10 Home Buyer’s Warranty as found on pages 6 and 7 of the [Home Buyer’s Warranty] Booklet.... The decision of the arbitrator shall be final and binding and may be entered as a judgment in any State or Federal court of competent jurisdiction. Arbitration shall include, but not be limited to, the determination by the arbitrator of the scope of arbitration and the arbitrability of controversies or claims. The parties acknowledge and agree that the transactions contemplated by this Agreement, which include the use of materials and components from out of state in the home, involve interstate commerce as that term is used in the Federal Arbitration Act, 9 U.S.C. § 1 et seq. The site of such arbitration shall be Mobile County, Alabama.
“[John Howard] and [Wittmann] agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties further understand that they have a right or opportunity to litigate disputes through a court, but they prefer to resolve their disputes through arbitration, except as provided herein. The parties voluntarily and knowingly waive any right they have to a jury trial. The decision of the arbitration shall be final and binding on the parties and access to judicial forum is foreclosed, except to enforce an arbi-tral decision.
“[John Howard] and [Wittmann] agree and understand that all disputes arising under case law, statutory law, and all other laws including, without limitation, all contract, tort, and property disputes, whether or not such disputes arise under or are related to this contract, will be subject to binding arbitration in accord with this Agreement.”

(Emphasis added.) Pages 6 and 7 of the warranty booklet, in pertinent part, stated:

“Any and all claims, disputes and controversies by or between [Wittmann and John Howard] ... arising from or related to this Warranty, to the subject Home, to any defect in or to the subject Home or the real property on which the subject Home is situated, or the sale of the subject Home by [John Howard], including without limitation, any claim of breach of contract, negligent or intentional misrepresentation or nondisclosure in the inducement, execution or performance of any contract, including this arbitration agreement, and breach of any alleged duty of good faith and fair dealing, shall be settled by binding arbitration. Agreeing to arbitration means you are waiving your right to a jury trial.
“... The decision of the arbitrator shall be final and binding and may be entered as a judgment in any State or Federal court of competent jurisdiction.
“This arbitration agreement shall be deemed to be a self-executing arbitration agreement. Any disputes concerning the interpretation or the enforceability of this arbitration agreement, including without limitation, its revoca-bility or voidability for any cause, the scope of arbitrable issues, and any defense based upon waiver estoppel or laches shall be decided by the arbitrator.
“The parties expressly agree that this Warranty and this arbitration agreement involve and concern interstate commerce and are governed by the provisions of the Federal Arbitration Act (9 U.S.C. § 1, et seq.) now in effect and as the same may from time to time be amended, to the exclusion of any different or inconsistent state or local law, ordinance or judicial rule; and to the extent that any state or local law, ordinance or Judicial rule shall be inconsistent with any provision of the rules of the arbitration service under which the arbitration proceeding shall be conducted, the latter rules shall govern the conduct of the proceeding.”

Wittmann filed a response to the motion to compel arbitration in which he contended that his claims were not subject to arbitration. Specifically, he argued that the warranty that contained the second of the two arbitration clauses quoted at length above excluded substantive coverage for claims asserting a number of claimed types of damage, including claims arising out of noncompliance with accepted grading practices or failure to maintain the original grade; claims of damage to driveways or landscaping; certain claims based on standing or ponding water caused by changes in grade or placement of sod, fencing, or other obstructions; and claims stemming from soil erosion and runoff caused by a contractor’s failure to maintain the properly established grades, drainage structures, and swales. The trial court apparently agreed with Wittmann’s position that the warranty’s exclusion of coverage for his claims mandated the conclusion that arbitration should not be compelled, because that court entered an order denying the motion to compel arbitration on June 26, 2009. John Howard timely appealed to the Alabama Supreme Court from that order; the appeal was subsequently transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

An appellate court “reviews de novo [a] trial court’s denial of [a] motion to compel arbitration.” Jim Burke Auto., Inc. v. McGrue, 826.So.2d 122, 128 (Ala.2002). A party seeking to compel arbitration, such as John Howard, “has the initial burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce.” Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052 (Ala.2007). Once that initial burden is met, a nonmovant, such as Wittmann, “then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case.” Id. at 1052-53. Here, John Howard adduced evidence tending to show that Wittmann voluntarily assented to not one, but two, agreements in which the parties consented to waive their rights to a judicial resolution of their disputes in the first instance, choosing instead an alternative-dispute-resolution process.

To be sure, as Wittmann contends, both the purchase-agreement addendum and the warranty booklet provide that controversies or claims “arising from” the purchase agreement or the warranty were subject to arbitration, a term that has been construed in a comparatively narrow manner. Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala.1994) (interpreting term “arising under” as applying only to those claims actually stemming from the agreement rather than as extending to independent or collateral matters or claims). However, the pertinent agreements in this case go further by also requiring arbitration of claims and disputes “relating to” or “related to” those agreements, a term that is subject to a less restrictive construction and that ‘“covers a broad range of disputes.’ ” AmSouth Bank v. Dees, 847 So.2d 923, 933 (Ala.2002) (quoting Vann v. First Cmty. Credit Corp., 834 So.2d 751, 754 (Ala.2002)). More importantly, perhaps, the documents go on to include, within the scope of claims to be arbitrated, even more potential claims: the warranty specifically refers to “claims, disputes and controversies ... related to ... any defect in or to the subject Home or the real property on which the subject Home is situated,” including those stemming from “misrepresentation or nondisclosure,” whereas the purchase-agreement addendum broadly includes within the scope of its arbitration agreement “any and all claims arising between” the parties. We thus cannot agree with Wittmann that the claims he has asserted against John Howard do not fall -within the scope of the pertinent agreements to arbitrate.

It may well prove to be the case that no person or entity will be found to be contractually responsible, under the terms of the pertinent warranty, to cure a number of the items of damage claimed to have been incurred by Wittmann. That potential contractual defense does not, however, bar the enforcement of an arbitration clause in that warranty compelling the referral of all claims “related to” the warranty to arbitration. As a Florida appellate court held in upholding the applicability of an arbitration agreement in a similar factual and legal context, “[b]y the terms of the arbitration agreement, the parties agreed to submit claims to arbitration that were far broader than claims made under the warranty agreement, as long as those claims related to the subject home or the real property.” Mercedes Homes, Inc. v. Colon, 966 So.2d 10, 12 (Fla.Dist.Ct.App.2007). We thus conclude that the trial court erred in concluding that the claims asserted by Wittmann against John Howard were not subject to arbitration. The trial court’s order is reversed, and the cause is remanded for the entry of an order granting John Howard’s motion to stay and to compel arbitration.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., recuses himself.

      . Rule 4(d), Ala. R.App. P., allows for an immediate appeal of an order granting or denying a motion to compel arbitration.

      . To the extent that Wittmann seeks to rely upon Koullas v. Ramsey, 683 So.2d 415, 418 (Ala.1996), as authority for adopting a strict construction of the term "related to,” we need only note that AmSouth Bank specifically noted that the statements made in Koullas on that issue were obiter dicta. 847 So.2d at 932.