author: PARKER, Justice. WOODALL, Justice

text:
    Ex parte Nancy WORLEY, individually, and Beth Chapman, individually and in her official capacity as Secretary of State. (In re Anita Tatum v. Nancy Worley, in her individual capacity, and Beth Chapman, in her official capacity as Secretary of State and in her individual capacity).
    1070543.
    Supreme Court of Alabama.
    Dec. 30, 2009.
    Rehearing Denied April 16, 2010.

      John M. Bolton III, Charlanna Spencer, and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioners.
    Norbert H. Williams, Alabama State Employees Association, Montgomery, for respondent.
   PARKER, Justice.

Nancy Worley, Alabama’s former secretary of state, and her successor, Beth Chapman, the current secretary of state, petition this Court seeking a writ of mandamus directing the Montgomery Circuit Court to vacate its order of December 13, 2007, denying their motion for a judgment on the pleadings seeking the dismissal of the claims of Worley’s former subordinate, Anita Tatum, based on lack of subject-matter jurisdiction. For the reasons presented below, we issue the writ.

Background and Procedural Posture

On October 19, 2004, Tatum resigned her position in the Office of the Secretary of State as supervisor of voter registration. On October 29, 2004, she filed a notice of appeal to the State Personnel Board, alleging that her resignation was coerced and that it was, in actuality, not a resignation but an involuntary “constructive” termination.

According to the complaint Tatum filed in the Montgomery Circuit Court, Worley called Tatum to Worley’s office at about 3:30 p.m. on October 19, 2004, and demanded an explanation for a discrepancy between the number of registered voters on the Secretary of State’s Web site and the number of registered voters on the Alabama Voter Information Network (“ALVIN”), the statewide voter-registration system. Worley directed Tatum to provide an explanation for the discrepancy by 5:00 p.m. that day.

Tatum alleged that because of her lack of technical expertise with ALVIN, completing the task would require the assistance of an experienced technician. According to Tatum, Worley denied her request for the assistance of the computer technician responsible for maintaining ALVIN. Tatum further alleges that Worley did not provide her with information identifying the specific counties in which the discrepancies existed.

When she was unsuccessful in identifying the reason for the discrepancies within the required time, Tatum drafted and presented a memorandum to Worley stating that she needed more time to complete the task. Tatum contends that Worley responded in a “hostile and demeaning tone,” stating that a reporter was asking questions about the discrepancies and that Tatum could either resign or be fired. Tatum alleged that later that day Worley delivered to her a prepared letter of resignation and demanded that Tatum make an immediate decision regarding her alternatives. Tatum requested time to consider her options and to consult with legal counsel, but Worley denied the request. Instead, Tatum alleges, Worley summoned the personnel director for the Secretary of State’s Office, who gave Tatum what she describes as “tentative, incomplete, and inaccurate advice concerning her two options.” Allegedly fearing that termination would cause a forfeiture of the retirement benefits she had accrued during 21 years of state employment, Tatum signed the letter of resignation.

Worley’s and Chapman’s version of these facts, as presented in their joint brief to this Court, is slightly different, although the differences are not substantial. Their brief states that Worley gave Tatum the choice either of resigning or of being suspended pending an investigation. Also, according to the version of the facts in their brief, the tone of the exchanges between Worley and Tatum was matter-of-fact, rather than hostile.

After consulting with legal counsel, Tatum decided to appeal her resignation, which she considered to be a “constructive termination,” and 10 days later, on October 29, 2004, Tatum filed a notice of appeal with the State Personnel Board. The content of the notice of appeal is unavailable to us, but in a letter dated November 5, 2004, to Tatum’s legal counsel, the Personnel Board advised Tatum as follows:

“Our records ... indicate that [Tatum] resigned her position.... Our rules do not allow an appeal of a resignation, nor do we have jurisdiction to determine whether a constructive discharge occurred under our termination appeal statute.
“Based on your letter, however, it appears that you are alleging that retaliation or discrimination by the appointing authority prompted the resignation.... If this is the basis of your complaint, an appeal right exists pursuant to Rule 670-X-4-.03 of the Rules of the State Personnel Board which states in part: “ Any applicant or employee who has reason to believe that he has been discriminated against because or religious or political opinions or affiliations or race, sex, national origin, age or handicap in any personnel action may appeal to the State Personnel Board.’
“Should the Board determine that discrimination has occurred, it has the authority to reinstate [Tatum] or take other appropriate corrective action. Please advise how you wish to proceed.”

Tatum’s brief, Exh. H.

Tatum apparently indicated to the Personnel Board that her appeal included a claim under Rule 670-X-4-.03, Ala. Admin. Code (Alabama State Personnel Board), because, after a three-day hearing on November 14-16, 2005, the administrative law judge hearing the appeal concluded both that Tatum had resigned her position, obviating the Board’s jurisdiction over the appeal, and that Worley’s actions did not constitute an unlawful form of nonmerit-factor discrimination sufficient to trigger jurisdiction under Rule 670-X-4-.03. The administrative law judge therefore determined that the State Personnel Board did not have jurisdiction over the appeal, but she recommended to the Board that the nonmerit factors under which the Board may exercise jurisdiction be extended to include actions based upon “facts which prove to be false or inaccurate.” Tatum then appealed the decision of the administrative law judge to the full State Personnel Board. On April 18, 2007, that Board issued the following decision:

“This matter came before the Board upon the authority of Ala. Admin. Code § 670-X-4-.03. [Tatum] resigned her position with the Secretary of State’s Office and thereafter filed this appeal. This matter was assigned to Julia J. Weller as Administrative Law Judge who recommended the extension of jurisdiction of a non-merit factor to include actions based upon ‘facts which prove to be false or inaccurate.’
“The Board finds that there was a resignation and the Board declines to extend jurisdiction under Ala. Admin. Code § 670-X-4-.03 to include as a non-merit factor ‘facts which prove to be false or inaccurate.’
“It is therefore the Order of this Board that this APPEAL is DISMISSED WITH PREJUDICE.”

Petition, Exh. F (capitalization in original).

On May 18, 2007, Tatum filed a notice of appeal to the Montgomery Circuit Court, as required by § 41-22-20, Ala.Code 1975, a part of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 (“the AAPA”). Section 41-22-20 provides the procedure for soliciting judicial review of final decisions of administrative agencies within the State. The section provides, in pertinent part:

“(a) A person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter....
“(b) All proceedings for review may be instituted by filing of notice of appeal or review and a cost bond with the agency to cover the reasonable costs of preparing the transcript of the proceeding under review, unless waived by the agency or the court on a showing of substantial hardship. A petition shall be filed either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters, or unless otherwise specifically provided by statute, in the circuit court of the county where a party other than an intervenor, resides or if a party, other than an intervenor, is a corporation, domestic or foreign, having a registered office or business office in this state, then in the county of the registered office or principal place of business within this state.
“(d) The notice of appeal or review shall be filed within 30 days after the receipt of the notice of or other service of the final decision of the agency upon the petitioner.... The petition for judicial review in the circuit court shall be filed within 30 days after the filing of the notice of appeal or review.... Failure to file such petition within the time stated shall operate as a waiver of the right of such person to review under this chapter .... This section shall apply to judicial review from the final order or action of all agencies ....
“(h) The petition for review shall name the agency as respondent and shall contain a concise statement of:
“(1) The nature of the agency action which is the subject of the petition;
“(2) The particular agency action appealed from;
“(3) The facts and law on which jurisdiction and venue are based;
“(4) The grounds on which relief is sought; and
“(5) The relief sought.”

(Emphasis added.)

On May 30, 2007, Tatum, departing from the procedures outlined in the AAPA, filed a complaint in the Montgomery Circuit Court, naming former Secretary of State Worley in her individual capacity and Secretary of State Chapman in her official capacity and in her individual capacity. She invoked the jurisdiction of the trial court, relying on Fields v. State ex rel. Jones, 534 So.2d 615 (Ala.Civ.App.1987), and arguing that when a statute provides no right of appeal or statutory certiorari review, the common-law writ of certiorari is the only available means of review and original jurisdiction is proper in the circuit court. In her complaint, Tatum sought a common-law writ of cer-tiorari to review her allegedly unlawful dismissal, reinstatement to her position, damages for the deprivation of her property interest in continued employment, compensatory and punitive damages for Worley’s alleged intentional infliction of emotional distress, and attorney fees. In addition, Tatum requested a judgment declaring that her resignation was involuntary, that Worley had violated her constitutional rights without due process, that her resignation was actually a constructive termination, that Worley arbitrarily dismissed Tatum, and that Tatum’s resignation was obtained by coercion, duress, and misrepresentation.

In the petition for a writ of mandamus, Chapman claims that Tatum’s claims against her for money damages and attorney fees are barred by the doctrine of sovereign immunity. Tatum responds by citing Phillips v. Thomas, 555 So.2d 81, 83 (1989), for the premise that a “state employee is not protected by § 14[, Ala. Const.1901,] when [the employee] acts ‘wil-fully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law.’ ” Tatum’s brief, at 52.

In response to Tatum’s complaint, Wor-ley and Chapman moved the trial court for a judgment on the pleadings pursuant to Rule 12(c), Ala. R. Civ. P., arguing 1) that Tatum may not maintain an independent action after availing herself of the appellate process of the State Personnel Board; 2) that any claim against Chapman in her official capacity is barred by the doctrine of sovereign immunity; 3) that the claims against Worley and Chapman in their individual capacities are barred by the doctrine of State-agent immunity; 4) that the claims are barred by the statute of limitations; and 5) that Tatum’s claim asserting intentional infliction of emotional distress fails as a matter of law. The trial court issued an order denying their motion, and Worley and Chapman seek a writ of mandamus directing the trial court to vacate that order and to enter a judgment on the pleadings.

Standard of Review

“[Mjandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).

Mandamus is a proper remedy for a trial court’s refusal to dismiss a case for failure to comply with the necessary procedures for appeal set out in the AAPA. See, e.g., Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45 (Ala.1995). Further, “[a] petition for a writ of mandamus ‘is an appropriate means for seeking review of an order denying a claim of immunity.’ Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).” Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003).

“In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review.... Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear that the plaintiff cannot prove any set of circumstances upon which relief can be granted. Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 89 (Ala.2001). ‘ “In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [she] may possibly prevail.” ’ Id. (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. [Ex parte ] Butts, 775 So.2d [173] at 177 [(Ala.2000)].”

Analysis

Alabama provides statutory procedures in the AAPA for reviewing the actions of administrative agencies. It is a mainstay of administrative procedure that a party must exhaust all applicable administrative remedies before seeking relief in the courts. § 41-22-20(a), Ala.Code 1975. The purpose of these administrative procedures is “[t]o simplify the process of judicial review of agency action as well as increase its ease and availability. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration.” § 41 — 22—2(b)(7), Ala. Code 1975. To allow a plaintiff to raise issues in court that have been addressed by an administrative agency, without having exhausted that administrative process, would frustrate the orderly administration of justice. See Ex parte Gadsden Country Club, 14 So.3d 830, 832 (Ala.2009).

Although a party seeking review of a ruling by an administrative agency may petition the court for a common-law writ of certiorari, this means of review is allowable only when no statutory right of appeal or statutory certiorari review is available. Collins v. Alabama Dep’t of Corr., 982 So.2d 1078, 1080 (Ala.2007). Section 41-22-20, Ala.Code 1975, however, explicitly provides both a statutory vehicle for obtaining judicial review and a definition of the required process. This statutory process, by its existence, forecloses review by way of a petition for a common-law writ of certiorari.

Tatum contends that her claims were not constrained by the AAPA because, she says, her appeal to the Personnel Board was not a “contested case” within the meaning of § 41-22-20, Ala.Code 1975, which states in subsection (a) that “[a] person ... who is aggrieved by a final decision in a contested case is entitled to judicial review....” A “contested case” is defined in § 41-22-8(3), Ala.Code 1975, as “[a] proceeding ... in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” Tatum argues that, because the Personnel Board declined jurisdiction and did not adjudicate her appeal “on the merits,” she is not aggrieved by a final decision in a contested case and, thus, that the AAPA does not govern her claim. Tatum also cites in support of this contention Rule 41(b), Ala. R. Civ. P., which states that an involuntary dismissal for lack of jurisdiction is not an adjudication on the merits. However, Rule 81(b), Ala. R. Civ. P., states that “[tjhese rules are not applicable to any proceeding in which the adjudication of the controversy is by ... an administrative agency or official body of any kind, other than the courts enumerated in Rule 1.” Therefore, Rule 41(b), Ala. R. Civ. P., does not apply to the decisions of an administrative agency, and it does not provide support for Tatum’s position.

As support for her claim that the AAPA applies only to adjudications on the merits, Tatum cites Jones v. Alabama State Board of Pharmacy, 624 So.2d 613, 614 (Ala.Civ. App.1993). The portion of Jones Tatum cites states:

“Appellate review of administrative actions is limited to a determination of ‘whether the agency acted within its powers conferred upon it by law and the constitution, whether its decision is supported by substantial evidence, and whether the agency’s decision is reasonable and not arbitrary.’ ”

It is unclear why Tatum offered this case as support; it concerns how a court will review an agency decision, not whether judicial review of an agency decision is available or required.

Despite Tatum’s contention, the AAPA does not use the phrase “on the merits.” Rather, it states that a party aggrieved by a “final decision” is entitled to judicial review. A “final decision” is one that garners the support of “a majority of the officials who are to render the final order.” § 41-22-15, Ala.Code 1975. The Personnel Board determined as a matter of fact that Tatum had resigned, and because Tatum’s resignation was not the result of nonmerit discrimination, as defined by Rule 670-X-4-.03, Ala. Admin. Code (Alabama State Personnel Board), the Board declined to follow the administrative law judge’s recommendation and extend its jurisdiction under Rule 670-X-4-.03 in order to reach Tatum’s claims. Because Tatum had resigned, leaving nothing to adjudicate, the Personnel Board dismissed her appeal with prejudice. The order was signed by a majority of the officials empowered to render the order and was, therefore, a final decision.

Tatum also curiously alleges that “the question whether Tatum resigned was never at issue before the Personnel Board. Instead, the gravamen of Tatum’s claim to the Personnel Board was that her resignation was involuntary.” Tatum’s brief, at 39. Only by a twist of logic could one assert that the State Personnel Board never considered whether Tatum resigned, when, in fact, the Personnel Board determined that it lacked jurisdiction over Tatum’s appeal only after it found that Tatum had resigned.

This conclusion was reached after a hearing held before an administrative law judge over the course of three days and a subsequent hearing before the Board. Despite Tatum’s assertion that the Board never adjudicated the claim on the merits, the Board had to consider Tatum’s claim to determine whether it would extend jurisdiction to reach the claim. The nature of Tatum’s separation from her employment in the Secretary of State’s Office was a threshold factual question the Board had to determine.

The AAPA requires that one unhappy with the agency’s determination petition the circuit court for review. The petition for review in the circuit court must “name the agency as respondent and shall contain a concise statement of: (1) The nature of the agency action which is the subject of the petition; (2) The particular agency action appealed from; (3) The facts and law on which jurisdiction and venue are based; (4) The grounds on which relief is sought; and (5) The relief sought.” § 41-22-20(h), Aa.Code 1975. Instead of a petition naming the State Personnel Board as respondent as required under (1) above, Tatum filed in the circuit court a complaint naming Worley and Chapman, individually and in her capacity as secretary of state, as defendants. Tatum’s complaint did not state that in filing the complaint she was appealing a decision by the Personnel Board as required by § 41-22-20(h)(2) above. The relief sought in the circuit court was 12 actions and declarations that began with a prayer for “[a] Common Law Writ of Certiorari to review Defendants’ unlawful removal of Plaintiff from her position as Supervisor of Voter Registration.” (Emphasis in original.) The complaint did not mention or invoke the right to judicial review under the AAPA. Instead, Tatum disregarded the requirements of the AAPA and proceeded as if there were no statute that provided for judicial review. Her complaint was not a petition for review of an agency action; it was, in fact, a new civil action against Worley and Chapman.

Ex parte Smith, 683 So.2d 431 (Ala.1996), cited by Worley and Chapman, is factually similar to the present case. In Smith, a professor at a state college appealed his termination to the administrative-review panel. The panel found that Smith had been terminated for good cause, and the panel affirmed Smith’s termination. Smith did not appeal the panel’s decision; instead, he filed an original civil action against the college, which resulted in a summary judgment in favor of the college. This Court affirmed the summary judgment, noting that the decision of the review panel, as determined by statute, was “final and binding.”

“[Bjecause the decision of the review panel is considered final and binding, the only remedy available to Smith was to appeal the panel’s decision to the appropriate circuit court. A reviewing court ‘may reverse or modify the decision [of an administrative review panel] or grant other appropriate relief if it finds that ‘substantial rights of the petitioner have been prejudiced because the agency action is ... [i]n violation of constitutional or statutory provisions.’ § 41-22-20&), Ala.Code 1975. Smith did not appeal the decision of the review panel to the circuit court; rather, he brought this action in order to recover damages for wrongful termination. Therefore, he waived his right to appeal the decision of the review panel.”

683 So.2d at 435. See also Island Bay Utils. v. Alabama Dep’t of Envtl. Mgmt., 587 So.2d 1210 (Ala.Civ.App.1991) (holding that plaintiffs failure to follow the procedure necessary to institute an appeal from a decision by the Alabama Department of Environmental Management was fatal to claim); Smith v. Civil Sero. Bd. of Florence, 52 Ala.App. 44, 289 So.2d 614 (Civ.App.1974) (stating that when a special statutory procedure has been provided as an exclusive method of review for a particular type of case, no other statutory review is available); and Hallman v. City of Northport, 386 So.2d 756 (Ala.Civ.App.1980) (ruling that when the right to appeal is purely statutory, an appeal taken without statutory authority must be dismissed for want of jurisdiction).

Under this authority, Tatum’s failure to follow the statutory process for taking an appeal acts as a waiver of her right to a review of the decision of the State Personnel Board. The process for appealing a termination is defined by statute, as described supra. That process states that decisions of the State Personnel Board are final and binding. Rule 670-X-4-.03, on which Tatum relies, states: “If the Board finds after hearing that there was discrimination on any of the above nonmerit factors, it shall order appropriate corrective action and its decision shall be final.” Also, Rule 670-X-18-.02, entitled “Dismissals,” states in subsection (3): “The decision of the Board based upon its records and the testimony shall be final.” The statutory process directs parties who are aggrieved by a final decision to appeal that decision to the circuit court. Failure to follow this procedure acts as a waiver of the right to appeal the decision. Although Tatum conveyed jurisdiction to the trial court by filing her notice of appeal, she waived her right to review when she subsequently failed to file the required petition and instead filed a new civil action naming Worley and Chapman as defendants.

Tatum clearly did not comply with the statutory requirements for filing an appeal of the Personnel Board’s decision. Although Tatum substantially complied with the requirements of § 41-22-20 by exhausting her administrative remedies within the agency and by filing a notice of appeal, she failed to file a petition in the circuit court as required by § 41-22-20(d), and she failed to strictly comply with the requirements of § 41-22-20(h), Ala.Code 1975. In Ex parte Carlisle, 894 So.2d 721, 728-29 (Ala.Civ.App.2004), the Court of Civil Appeals held that strict compliance with statutory procedure was necessary for a party to obtain review by the circuit court of the action of the State Department of Revenue. Here, Tatum failed to follow the statutorily defined procedure for appealing final decisions of the State Personnel Board, and in doing so she waived her right to judicial review. Because we are issuing the writ based on Tatum’s waiver of her right to judicial review, we pretermit discussion of the other issues raised by the parties.

Tatum’s complaint, however, asserted new claims for damages that were not raised before the Personnel Board. Worley and Chapman correctly argue that the claims against them are barred by the doctrine of State immunity.

Section 14, Alabama Constitution of 1901, which states that “the State of Alabama shall never be made a defendant in any court of law or equity,” bars actions against the State and, more particularly, bars actions against constitutional officers, when the claims arise from the performance of the constitutional officer’s duties. Boshell v. Walker County Sheriff, 598 So.2d 843, 844 (Ala.1992). Article V, § 112, Alabama Constitution of 1901, defines the executive department as consisting of a “governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.” The persons occupying the named offices are constitutional officers, and “this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment.” Ex parte Davis, 930 So.2d 497, 500-01 (Ala.2005). Chapman was sued in her official capacity as secretary of state, and Worley was acting in her official capacity as secretary of state when the incident that forms the basis for these claims occurred. Ex parte Shelley, [Ms. 1080588, September 18, 2009] — So.3d -, - (Ala.2009) (“Suits against [constitutional] officers for actions taken in the line and scope of their employment inherently constitute actions against the State, and such actions are prohibited by § 14. See [Ex parte] Haralson, 853 So.2d [928,] 932 [ (Ala.2003) ].”). Thus, Tatum’s claims against both Worley and Chapman in the Montgomery Circuit Court that were not asserted in Tatum’s appeal to the State Personnel Board are barred by the doctrine of State immunity.

Conclusion

Tatum waived her right to judicial review of the decision of the Personnel Board because she failed to follow the statutory procedure for obtaining that judicial review. A common-law writ of cer-tiorari was unavailable to her because statutory procedures for such an appeal existed. Further, Tatum’s claims against Worley and Chapman asserted for the first time in the action in the Montgomery Circuit Court are barred by the doctrine of State immunity under § 14, Ala. Const. 1901. Accordingly, the writ of mandamus will issue and the trial court is directed to vacate its order denying Worley and Chapman’s motion and to enter a judgment on the pleadings in Worley’s and Chapman’s favor.

PETITION GRANTED; WRIT ISSUED.

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

COBB, C.J., and WOODALL and SHAW, JJ., concur in the result.

WOODALL, Justice

(concurring in the result).

I concur in the result. All of Tatum’s claims are clearly barred by the immunity afforded Worley and Chapman by § 14, Ala. Const.1901.

COBB, C.J., concurs.

      . The parties do not explain the significance of the phrase "facts which prove to be false or inaccurate,” nor do they provide the Court a copy of the administrative ruling, which Wor-ley and Chapman refer to as a 56-page opinion.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    CITY OF GRAYSVILLE, City of Graysville Water and Sewer Board, and Doug Brewer v. Onis “Trey” GLENN III, director of the Alabama Department of Environmental Management, and Green Mountain Management, LLC.
    1081229.
    Supreme Court of Alabama.
    Jan. 15, 2010.
    Rehearing Denied April 16, 2010.

      Jeffrey W. Brumlow of Morris & Brum-low, P.C., Birmingham, for appellants.
    Paul Christian Sasser, Jr., and James R. Thrash, assoc, gen. counsel, Alabama Department of Environmental Management, for appellee Onis “Trey” Glenn III, in his official capacity as director of the Alabama Department of Environmental Management.
    Aaron G. McLeod and Richard P. Car-mody of Adams & Reese, LLP, Birmingham, for appellee Green Mountain Management, LLC.
   WOODALL, Justice.

The City of Graysville, the City of Graysville Water and Sewer Board, and Doug Brewer, mayor of the City of Grays-ville (hereinafter referred to collectively as “Graysville”), appeal from a summary judgment in favor of Onis “Trey” Glenn III, director of the Alabama Department of Environmental Management (“ADEM”), and Construction Management Services, LLC (“CMS”). We affirm the trial court’s judgment.

Facts and Procedural History

The parties stipulated to the following facts:

“1. On May 4, 2005, [CMS] filed its application with [ADEM] seeking a permit to construct and operate a landfill within the confines of the City of Adamsville, in the western part of Jefferson County. As is required by statute, this paperwork was filed publicly and was available for inspection during the entirety of the application’s pen-dency.
“2. Over the course of the next two years, multiple public hearings and meetings occurred concerning CMS’s application. The City of Adamsville rezoned the landfill property, publishing public notices and holding public hearings over the course of the rezoning process. ADEM, on two separate occasions, published public notices, had public comment periods and held public hearings regarding CMS’s pending permit application.
“3. As part of the permitting process, the Regional Planning Commission issued a statement with regards to the proposed landfill’s consistency with the regional solid waste needs....
“4. On August 6, 2007, ADEM issued Solid Waste Disposal Permit No. 37-48 giving CMS permission to construct and operate the landfill that is the subject of this lawsuit.
“5. After the issuance of Solid Waste Disposal Permit No. 37-48, no one filed a Request for Hearing with the Alabama Environmental Management Commission to contest the issuance of the permit.”

When it issued the permit to CMS, ADEM sent Mayor Brewer a letter advising him that an appeal of the permit issuance to the Alabama Environmental Management Commission (“EMC”) could be filed within 30 days of the issuance of the permit. However, as indicated in the stipulated facts, no one requested a hearing before the EMC.

On June 20, 2008, more than 10 months after ADEM had issued the permit for the landfill, Graysville sued ADEM and CMS, alleging that ADEM had violated a statute and its own regulation in issuing the landfill permit to CMS. Graysville later amended its complaint to remove ADEM as a defendant and to add Glenn in his official capacity as director of ADEM. In its complaint, Graysville asked the trial court for a

“determination that the permit for the Flat Top Road Landfill, being violative of state law, is null and void as being outside the statutory authority of ADEM and Onis ‘Trey5 Glenn, III, in his official capacity as Director of ADEM to grant, or, in the alternative, enjoin [CMS] from acting upon and implementing a landfill until such time as it obtains the necessary approvals required by state law.”

(Emphasis omitted.) Graysville also asked the trial court for

“an injunction against Onis ‘Trey5 Glenn, III, in his official capacity as Director of ADEM from violating [ADEM’s] own rules in reference to solid waste landfill regulations, and a determination that any such permits let in violation of the rules of ADEM be declared null and void as violative of Alabama law and due process to the citizens of Alabama, of Graysville, and the customers of the Graysville Water and Sewer Board.”

(Emphasis omitted.)

Glenn and CMS each moved the trial court for a summary judgment, arguing that the trial court should dismiss the claims against them because, they said, Graysville had failed to exhaust its administrative remedies. The trial court granted the motions on that ground and entered a summary judgment in favor of Glenn and CMS. Graysville appealed.

Graysville and CMS jointly moved this Court to substitute Green Mountain Management, LLC, for CMS. Their motion indicated that CMS had transferred its permit for the Flat Top Road Landfill to Green Mountain shortly before Graysville filed its complaint and that, therefore, “Green Mountain is ... the successor in interest to CMS and has acquired all of CMS’s interests relevant to this appeal.” We granted that motion; we address the appeal as being from a summary judgment in favor of Glenn and Green Mountain.

Issue

Graysville raises a single issue on appeal: whether the trial court erred in entering a summary judgment in favor of Glenn and Green Mountain on the basis of Graysville’s failure to exhaust its administrative remedies.

Standard of Review

“The role of this Court in reviewing a summary judgment is well established — we review a summary judgment de novo, ‘ “applying] the same standard of review as the trial court applied.” ’ Stokes v. Ferguson, 952 So.2d 355, 357 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004)). ‘In order to grant the [summary-judgment] motion, the court must find clearly [1] that there is no genuine issue of material fact and [2] that the movant is entitled to a judgment as a matter of law.... The movant bears the burden initially of showing the two prongs of the standard.’ Maharry v. City of Gadsden, 587 So.2d 966, 968 (Ala.1991).”

Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 69 (Ala.2007).

Analysis

Graysville first argues that the trial court erred in disposing of its claims against Glenn and Green Mountain on the basis that Graysville did not exhaust its administrative remedies because, according to Graysville, the claims fall within the exceptions to the exhaustion-of-administrative-remedies doctrine.

“To be sure, Alabama recognizes the doctrine of exhaustion of administrative remedies. City of Huntsville v. Smartt, 409 So.2d 1353, 1357 (Ala.1982). ‘This doctrine “requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.” ’ Id. (quoting Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975)).”

Patterson v. Gladwin Corp., 835 So.2d 137, 141-42 (Ala.2002). There are recognized exceptions to that doctrine, including

“when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy is inadequate, or (4) where there is the threat of irreparable injury.”

Ex parte Lake Forest Prop. Owners’ Ass’n, 603 So.2d 1045, 1046-47 (Ala.1992). This Court has also recognized an exception to the rule “where there is a defect in the power of the agency to act in any respect.” Jefferson County v. Johnson, 333 So.2d 143, 149 (Ala.1976).

Graysville alleges that ADEM issued the landfill permit to CMS without obtaining the consistency report required by § 22-27-48(b), Ala.Code 1975, and without obtaining an adequate hydrological evaluation, as required by Rule 335-13-4-.14, Ala. Admin. Code (ADEM). Graysville argues that determining whether ADEM had the authority to issue the landfill permit without obtaining a consistency report and an adequate hydrological evaluation involves pure questions of law, including whether there was a defect in ADEM’s authority to act. Further, according to Graysville, “ADEM’s compliance with state law and its own rules and regulations is mandatory, and not discretionary.” Graysville’s brief, at 17. Therefore, Graysville argues, it was not required to exhaust its administrative remedies before suing in the Jefferson Circuit Court for declaratory and injunctive relief.

In response, Glenn and Green Mountain argue that Graysville is seeking a “review” of ADEM’s decision to issue the landfill permit, not any interpretation of § 22-27-48(b), and that Graysville has “alleged that ADEM issued the permit in violation of Ala.Code § 22 — 27—48(b), not that ADEM was without power to issue landfill permits.” Green Mountain’s brief, at 27. Therefore, Glenn and Green Mountain argue, the trial court properly disposed of Graysville’s action based on its failure to exhaust the available administrative remedies. We agree.

Although we have recognized exceptions to the exhaustion-of-administrative-remedies doctrine, “an action for a declaratory judgment was never intended to be used as a substitute for an appeal.” Howle v. Alabama State Milk Control Bd., 265 Ala. 189, 192, 90 So.2d 752, 755 (1956). In Mitchell v. Hammond, 252 Ala. 81, 39 So.2d 582 (1949), this Court addressed the distinction between actions seeking a declaratory judgment interpreting a statute and actions seeking review of an administrative agency’s decision. Mitchell, who was director of the Department of Public Safety, revoked Hammond’s driver’s license for driving while intoxicated. Hammond sought “a declaratory judgment to review the propriety of ... [Mitchell’s] action ... in revoking [Hammond’s] driver’s license on the basis ... that the revocation of the license was unauthorized.” 252 Ala. at 82, 39 So.2d at 583. Section “68, Title 36, Code 1940, [the statute under which Mitchell had purported to act,] ... provide[d] ... that on the final conviction of any person of driving a motor vehicle while intoxicated and the transmittal to him by the court of the record of such conviction, the Director of Public Safety shall forthwith revoke the driver’s license of such person.” Id. (emphasis added). Hammond alleged that Mitchell was not authorized to revoke his driver’s license because there had been no final conviction. Mitchell filed a demurrer seeking a dismissal of the suit. The trial court overruled the demurrer, and Mitchell appealed.

On appeal, this Court addressed whether a declaratory-judgment action was the proper procedural avenue for the relief Hammond sought. The Court noted a “clear difference” between asking a court to determine “[t]he constitutionality of [a] statute or the authority of [an official] to lawfully act under [the statute]” and asking the court to determine “whether an act of a public official or bureau is supported by evidence as the basis for official action.” 252 Ala. at 83, 39 So.2d at 584. The Court went on to say:

“In the first instance, there is a controversy as to the meaning of what the official has done or ordered, while in the second there is merely a contention that the official acted upon no evidence or improper evidence. In the latter case the question should be determined by the usual method of direct review. In the latter instance the effort is to get the action or judgment of the official reversed, or rescinded, whereas in a proceeding for a declaratory judgment there is no such purpose, but rather an effort to have the official act interpreted.”

Id. The Court concluded that Hammond’s claim was, “[i]n essence, [an] attempt ... to use the proceeding to review the sufficiency, vel non, of the evidence” supporting Mitchell’s actions, and it held that “[t]he remedy afforded by the Declaratory Judgment Act [was] not available to [Hammond].” 252 Ala. at 82, 39 So.2d at 583. This Court in Hammond could not have reached the result it reached without implicitly rejecting the view that the statutory requirement of a final conviction was a condition precedent to the authority of the director to act.

The circumstances in Hammond are closely analogous to those presented in this case. Here, as in Hammond, there is no “controversy as to the meaning of what the official has done or ordered.” To the extent that Graysville contends that the issuance of a landfill permit is beyond the authority of ADEM, here, as in Hammond, the authority of the agency is not subject to serious challenge. See §§ 22-27-1 to 22-27-27 and §§ 22-22A-1 to 22-22A-15, Ala.Code 1975. Instead, Grays-ville, like Hammond, seeks a “review of the sufficiency, vel non, of the evidence on which has rested official action by a department of state government, acting by and through the director thereof.” 252 Ala. at 82, 39 So.2d at 583. In other words, Graysville, like Hammond, has attempted “to use [a declaratory-judgment action] as in the nature of an appellate review of ... official action,” id, in an effort to get the official action reversed or rescinded. “It was never contemplated that the [Declaratory Judgment Act] could be so employed.” Id.

As stated in Hammond: “[T]he question [whether the official acted upon no evidence or improper evidence] should be determined by the usual method of direct review.” 252 Ala. at 83, 39 So.2d at 584. Thus, if Graysville claimed to be aggrieved by the issuance of the landfill permit, it was required to invoke the appeal procedure available to it under § 22-22A-7(c), Ala. Code 1975. Pursuant to that subsection, “any person aggrieved by an administrative action of [ADEM] shall be entitled to a hearing before the [EMC] or its designated hearing officer.” The issuance of a permit by ADEM is an administrative action. See § 22-22A-3(8), Ala.Code 1975. “Within 30 days after such hearing, the [EMC must] issue an appropriate order modifying, approving or disapproving [ADEM’s] administrative action.” § 22-22A-7(c)(3). Such an order of the EMC “constitutes a final action of [ADEM]” and is appealable to the circuit court. § 22-22A-7(c)(6). ‘When a special statutory procedure has been provided as an exclusive method of review for a particular type case, no other statutory review is available.” Howle, 265 Ala. at 193, 90 So.2d at 755. When Graysville was advised of its right to invoke the statutory-review procedure, it did not do so. Therefore, the trial court correctly concluded that Graysville’s claims were hot viable, based on its failure to exhaust the administrative remedies available to it.

Graysville cites several cases that, according to it, support its contention that a declaratory-judgment action is the proper means of seeking relief in this case. The cases include Lake Forest, Johnson, Alabama Department of Environmental Management v. Coosa River Basin Initiative, Inc., 826 So.2d 111 (Ala.2002), and Pleasure Island Ambulatory Center v. State Health Planning & Development Agency, 38 So.3d 739 (Ala.Civ.App.2008). However, each of these cases is distinguishable.

In Lake Forest, this Court concluded that the exhaustion-of-administrative-remedies doctrine was inapplicable because “[t]he resolution of [the] issue [presented] did not require an administrative finding of fact or the exercise of administrative discretion, nor was the issue raised as an appeal from the board of adjustment’s denial of [a] variance.” Lake Forest, 603 So.2d at 1047. In Pleasure Island, the parties sought the interpretation of a statute. Pleasure Island, 38 So.3d at 745 (“This case concerns the interpretation of a statute and involves only a question of law.”). Thus, the claims in those cases fell within the exceptions to the exhaustion-of-administrative-remedies doctrine. See Lake Forest, 603 So.2d at 1046-47 (“The doctrine [of exhaustion of administrative remedies] does not apply when (1) the question raised is one of interpretation of a statute, [or] (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact.... ”).

Here, Graysville argues that its claims also “involve only the interpretation of a statute and agency rule and raise only questions of law.” Graysville’s brief, at 14. However, as already discussed, Grays-ville’s claims do not seek the interpretation of a statute but, instead, seek a review of ADEM’s issuance of the permit through an inquiry into the sufficiency of the evidence to support that action in a setting where the alleged deficiency does not defeat the authority of the agency to act. Such an inquiry involves the application of the law to the facts and, as stated previously, is limited to the review provided by statute. Therefore, unlike the claims in Lake Forest and Pleasure Island, Graysville’s claims do not fall within any exception to the exhaustion-of-administrative-remedies doctrine.

Johnson is also distinguishable. In Johnson, the Jefferson County engineer, by letter, denied the Johnsons’ application for a building permit because it was his “ ‘opinion ... based on flood experience in [the] area’ ” that the proposed structure “ “would tend to impede the flow of water within [a] creek or preclude the possibility of enlarging the creek channel to provide for future increases in run-off and make it difficult to clean the channel of silt and debris.’” 338 So.2d at 145. The issue presented was whether the engineer had the legal authority “to take action on the subject of flood control.” Id. The Court held that the engineer had no such authority and, therefore, “was not authorized to deny [the] building permit for the reasons stated in his letter of denial to” the John-sons. 333 So.2d at 149. The Court also concluded that no “further administrative remedies [had to] be pursued,” because “administrative remedies are not required to be exhausted where there is a defect in the power of the agency to act in any respect.” 333 So.2d at 149.

Graysville argues that, “[a]s in ... Johnson, in this case [Graysville] claim[s] that the grant of a solid waste permit without a statement of consistency from the regional planning and development board created a defect in the power of the agency to act at all in regard to the issuance of a permit.” Graysville’s brief, at 16. However, it is undisputed that ADEM has the authority to issue permits for the construction of landfills. See §§ 22-27-1 to 22-27-27 and §§ 22-22A-1 to 22-22A-15, Ala.Code 1975. Although Graysville attempts to argue in terms of a defect in ADEM’s authority, its claim, as we noted previously, actually goes to the sufficiency of the evidence to support ADEM’s issuance of the permit to CMS, Green Mountain’s predecessor in interest. A declaratory-judgment action is not the proper procedural avenue to seek relief on a claim that an agency acted on the basis of “no evidence or improper evidence.” Hammond, 252 Ala. at 83, 39 So.2d at 584.

Coosa River is also distinguishable. In that case, the Court did decide that a declaratory-judgment action was the proper avenue for relief. However, that case did involve the interpretation of a statute, and the Court held that the pursuit of administrative remedies “would be futile and would not provide an adequate remedy.” 826 So.2d at 117. Thus, the claims in Coosa River fell within two of the well recognized exceptions to the exhaustion-of-administrative-remedies doctrine. On the other hand, as we have discussed, Grays-ville’s claims do not fall within these or any other recognized exception. More specifically, Graysville is not asking the court to interpret a statute, and the relief it seeks was within the authority of the EMC to grant pursuant to the administrative review that Graysville did not pursue.

Conclusion

Glenn and Green Mountain demonstrated that there was no genuine issue of material fact as to Graysville’s failure to exhaust its administrative remedies and that, therefore, they were entitled to a judgment as a matter of law on that basis. Thus, we affirm the trial court’s judgment.

AFFIRMED.

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

      . On December 11, 2009, Glenn stepped down as director of ADEM.

      . As explained later in this opinion, Green Mountain Management, LLC, is the successor in interest to CMS.

      . Section 22-27-48(b) provides, in pertinent part:
      "Following local review and approval of any proposal regarding services or activities described in the local solid waste management plan, the applicant shall obtain a statement of consistency from the regional planning and development commission.”


author: PARKER, Justice.

text:
    Thomas C. CREWS v. NATIONAL BOAT OWNERS ASSOCIATION MARINE INSURANCE AGENCY, INC., et al.
    1051804.
    Supreme Court of Alabama.
    Jan. 29, 2010.
    Rehearing Denied April 16, 2010.

      Susan Williams Reeves of Reeves Law Offices, Birmingham; and Richard H. Gill of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    Laura C. Nettles of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellee National Boat Owners Association (NBOA) Marine Insurance Agency, Inc., and Jackie Ashe, individually and as agent for the appellee National Boat Owners Association (NBOA) Marine Insurance Agency, Inc.
    Paul A. Clark and G. Lane Knight of Balch & Bingham, LLP, Montgomery, for appellee Markel American Insurance Company.
   PARKER, Justice.

Thomas C. Crews appeals from a judgment compelling him to arbitrate his claims against the National Boat Owners Association Marine Insurance Agency, Inc. (“NBOA”), Markel American Insurance Company (“Markel”), and Jackie Ashe, whom Crews sued both individually and as an agent for NBOA. We affirm.

Background and Procedural Posture

Beginning in the mid 1990s, Crews purchased insurance for his boats annually from Ashe, who represented NBOA in the transactions. As part of the annual-renewal procedure, NBOA required that Crews complete its watercraft application, listing all boats that would be covered by the policy for the policy year. NBOA, in turn, selected Markel to provide the insurance. The policies were renewable each year on November 9 to be effective until November 9 of the following year.

Crews states that in October 2008 he paid the premium for the renewal policy covering the period from November 9, 2003, to November 9, 2004. Among the boats covered by the policy was a 45-foot Sea Ray Cruiser yacht. He received a copy of the renewal policy in January 2004; the renewal policy included amendments to the policy that had been issued to cover the previous year, including changes to the geographic locations in which the yacht would be covered. The renewal policy also included a “General Amendatory Endorsement” that incorporated an arbitration agreement into the General Loss Conditions section of earlier the policy. The policy contained a provision that allowed Crews to cancel the policy by returning it. Crews did not return the policy.

In September 2004, Hurricane Ivan struck the Gulf Coast of Alabama, and Crews’s 45-foot Sea Ray Cruiser yacht was damaged by the storm. When Crews filed a claim for the damage, NBOA advised him that he had violated the navigational restriction of the policy, under which he had warranted that the boat would not be south of Savannah, Georgia, “between June 1, and November 1, both dates inclusive.” NBOA then canceled the policy by a letter to Crews mailed on October 19, 2004.

Crews filed a complaint in the Montgomery Circuit Court against NBOA, Markel, and Ashe, alleging breach of contract and tort claims against all three defendants. Markel removed the action to federal court, where Markel filed motions and answers that it has included as appendices to its brief to this Court. Markel asks this Court to include those appendices in the record. “The record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief. Jenkins v. State, 516 So.2d 944 (Ala.Crim.App.1987).” Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000). Accordingly, we decline to consider Mark-el’s request, which should properly have been presented to the trial court. See Rule 10(f), Ala. R.App. P.

The federal court remanded the case to the state court as untimely filed, and Markel moved the Montgomery Circuit Court to stay the proceedings and to compel arbitration in accordance with the arbitration agreement in the policy. The trial court issued an order on July 31, 2006, granting the motion to compel arbitration “with respect to all claims presented in this action.” Crews appeals, arguing that he was unaware of the existence of the arbitration agreement and the navigational restrictions when he renewed the policy, and he argues by implication that the arbitration agreement and the navigational restrictions are not a part of the policy because, he says, they were not a part of the policy in October 2003 when he paid the premium in full. Because the issue on appeal concerns only the propriety of the trial court’s order granting Markel’s motion to compel arbitration, we do not address the issues related to the navigational restrictions.

The arbitration agreement reads in its entirety as follows:

“IX. Arbitration
“In the event that You or We disagree concerning whether any or all of the loss is covered by the policy, You and We will resolve this disagreement through arbitration. Arbitration will take place in the county where You live. It will be conducted under the rules of the American Arbitration Association unless You or We object. In that case, You will select an arbitrator and We will select other [sic] another arbitrator. The two selected arbitrators will then select a third. If the two arbitrators are unable to agree on the third arbitrator within 30 days, the judge of the court of record in the county of jurisdiction where arbitration is pending will appoint a third arbitrator.
“Local court rules governing procedure and evidence will apply unless the arbitrators agree on other rules. The decision in writing of any two arbitrators will be binding on You and Us, subject to the terms of insurance. Judgment on any award may be entered in any court having jurisdiction.
“You will pay the arbitrator that You choose and We will pay the arbitrator that We choose. The expense of the third arbitrator and all other expense of the arbitration will be shared equally by You and Us.”

In its motion to stay proceedings and compel arbitration, Markel advised the trial court that it had issued a policy of insurance to Crews and had had a copy mailed. As noted above, the policy contained a provision that allowed Crews to cancel the policy by returning it.

In opposition to Markel’s motion, Crews argued that an arbitration agreement did not exist, that, even if one did exist, Mark-el had waived its right to compel arbitration under it because of the untimeliness of the motion to compel arbitration, that the arbitration agreement, if one exists, does not apply to the parties to this action other than Markel, and that the arbitration agreement, if effective, allows arbitration only to resolve a disagreement concerning whether a loss is covered and would thus not apply to Crews’s “non-contract claims ... arising from [Markel’s] tortious conduct.” The trial court granted Markel’s motion and ordered the case to arbitration; Crews appealed.

Standard of Review

Our review of a motion to compel arbitration is de novo.

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

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

Legal Analysis

A. Vitality of the arbitration agreement

Quoting Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002), Crews argues that in order to compel arbitration, Markel has the burden of proving the existence of a contract containing an arbitration agreement and proving that that contract evidences a transaction affecting interstate commerce. Crews argues that Markel failed to carry its burden of proving that a contract containing an arbitration agreement exists because, Crews says, neither he nor Markel ever signed a policy application or a policy that contained an arbitration agreement. He directed the trial court’s attention to the language on page 2 of the renewal policy that follows the words “countersigned on: 10/8/2003 by:” and two blank lines. Those words read: “In Witness Whereof, we have executed this policy, which shall not be valid unless countersigned by our duly authorized representative.” He further argues that he received the amendatory endorsement containing the arbitration agreement after he accepted the policy by paying the premium, so that there was no meeting of the minds on the arbitration agreement.

In its brief on appeal Markel argues:

“Crews’[s] assent to the arbitration agreement was manifested in at least one of three ways. Specifically, the arbitration agreement became part of the renewal Policy because: (1) the renewal Policy specifically authorized amendato-ry endorsements, and the arbitration endorsement accompanied the renewal Policy provided to Crews; and/or (2) Crews did not cancel the renewal Policy after receiving notice of the arbitration endorsement; and/or (3) Crews made a claim under the renewal Policy and has sued Markel for, among other things, breach of contract for denying that claim.
“Crews initially manifested assent to the arbitration endorsement because the renewal Policy specifically incorporated amendatory endorsements, and the arbitration endorsement accompanied the renewal Policy provided to Crews. This Court has long recognized that endorsements are effective when they are specifically referenced in a contract. See Philadelphia American Life Ins. Co. v. Bender, 893 So.2d 1104 (Ala.2004).”

Markel’s brief, at 15-16.

In Philadelphia American Life Insurance Co. v. Bender, 893 So.2d 1104 (Ala.2004), the plaintiffs spouse signed an application for health insurance for both the plaintiff and the spouse that included a comprehensive arbitration agreement. The plaintiffs spouse was subsequently denied coverage, but a health-insurance policy was issued for the plaintiff, Bender, who paid the premiums and made claims under the policy. When the insurer denied certain claims, Bender sued the insurer, which moved the trial court for an order compelling arbitration. The motion was denied after Bender opposed the motion, claiming that he had not received the policy until two years after it was effective, that he had not signed the application containing the arbitration agreement, and that he was unaware that an arbitration agreement existed.

On appeal by the insurer, this Court determined that it was undisputed that the endorsement containing the arbitration agreement was attached to the policy. The endorsement containing the arbitration agreement also stated that it was incorporated by reference into any policy or certificate issued, and the policy itself stated that its terms included any endorsements, riders, attached papers, the application, and all enrollment applications. This Court also noted that an unsigned endorsement is valid if it is attached to the policy and referenced therein. See Bender, 893 So.2d at 1108 (citing Ex parte Rager, 712 So.2d 333 (Ala.1998)).

Markel asserts that like the policy of insurance in Bender, its renewal policy specifically references endorsements and incorporates “any endorsements” when it states that “[i]n return for the premium payment and compliance with all applicable provisions and any endorsements, we agree to provide the insurance coverage you have selected as shown on the Declarations Page, which is part of this policy.” Markel states: “[L]ike the arbitration agreement in Bender, the arbitration endorsement in this case notified Crews that it became part of the renewal Policy, stating: ‘THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.’ ... ([capitalization] in original).” Markel’s brief, at 18-19.

An unsigned endorsement is valid if it is attached to the policy and is referenced in the policy. See Greene v. Hanover Ins. Co., 700 So.2d 1354, 1357 n. 3 (Ala.1997). The renewal policy clearly references “General Amendatory Endorsement YHBP 0201,” the endorsement that contains the arbitration agreement. The endorsement document itself states in bold print: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” (Capitalization in original.) Crews told the trial court that he received the endorsement after he had renewed the policy. He does not argue that he had not received the endorsement before he suffered his loss, and he offers no explanation regarding his failure to reject the policy by returning it when he did receive the endorsement containing the arbitration agreement, which was his contractual remedy. “[U]nder Alabama law, [Crews] manifested [his] assent to the arbitration provision in several ways. First, [he] failed to exercise [his] right to cancel the policy. See Ex parte Rager, 712 So.2d [333,] 335 (Ala.1998).... Third, [Crews] submitted a claim under the policy. See [Southern United Fire Ins. Co. v.] Howard, 775 So.2d [156,] 162-63 [ (Ala.2000) ].” Southern Foodservice Mgmt., Inc. v. American Fid. Assur. Co., 850 So.2d 316, 320 (Ala.2002). We find no error in the trial court’s finding that a contract containing an arbitration agreement exists.

B. Waiver of right to arbitration

Crews argues that Markel waived any right it may have had to arbitrate his claims against it by virtue of its waiting 256 days after the complaint was. filed to assert its right to arbitrate, by first removing the case to federal court, and by initiating judicially supervised discovery. In support of his argument, Crews cites Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So.2d 897, 899 (Ala.1995) (“[A] party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration.”).

In its brief on appeal, Markel claims to have not only answered the complaint, but also to have asserted its right to compel arbitration in the federal court. “This fact, if so, is found in the brief, but not in the record, where, to avail, it must be.” Central of Georgia Ry. v. Ashley, 159 Ala. 145, 158, 48 So. 981, 985 (1909). Markel’s brief refers to the appendices, which we have earlier declined to consider, as being “extra” to the record provided by the trial court. The notice of removal to federal court is the first response by Markel to the complaint filed by Crews contained in the record of the proceedings in state court. It makes no mention of an intent on Mark-el’s part to invoke its right to arbitrate the claims asserted in the complaint. That intent was first expressed in state court in Markel’s motions to stay proceedings and compel arbitration and to stay discovery filed on May 12, 2006.

This Court has formulated a two-pronged test for determining whether a party has waived its right to compel arbitration:

“It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”

Companion Life Insurance Co., 670 So.2d at 899. On appeal, Crews asserts that by removing the action to federal court and initiating discovery Markel abandoned its right to arbitrate in favor of the judicial process and that he would be prejudiced by an order requiring him to arbitrate. If his assertions are accurate, both prongs of the test have been satisfied.

Markel responds analogizing this case to U.S. Pipe & Foundry Co. v. Curren, 779 So.2d 1171 (Ala.2000), in which this Court held that a party had not substantially invoked the litigation process by removing a case to federal court when the party had asserted the affirmative defense of arbitration in its initial answer. That case is inapposite, however, because there is no evidence in the record indicating that Markel asserted arbitration as an affirmative defense against the complaint, which was filed August 29, 2005, until it filed its motion to stay the proceedings and compel arbitration on May 12, 2006, after over eight months of litigation. We need not answer this question, however, because, assuming arguendo that Markel did invoke the litigation process, Crews has been unable to show that he was substantially prejudiced.

“[Wjhether there has been a waiver of a right to arbitration must be decided on a case-by-case basis.” Companion Life Insurance Co., 670 So.2d at 899. In Companion Life Insurance Co., this Court held that the right to arbitrate had been waived when the motion to compel arbitration was filed five months after the complaint was filed and only after the party seeking to compel arbitration had suffered an adverse ruling in federal court. Id. There, the nonmovant demonstrated prejudice by producing an affidavit by his counsel that counsel had expended 33.4 hours of professional services to secure the remand of the case to state court, for a cost of about $4,175. He argued that he would be substantially prejudiced if ordered to arbitrate his claim. Id. Here, Crews has quantified no estimate of the time or money spent in federal court or elsewhere. He suggests that he provided significant discovery in response to requests, but the record shows only that he responded to interrogatories and a request for production, both of which were issued not by Markel, but by the other defendants.

“Regarding the standard for determining prejudice, we have stated:
“ ‘ “Prejudice to the party opposing arbitration, not prejudice to the party seeking arbitration, is determinative of whether a court should deny arbitration on the basis of waiver.” Price [v. Drexel Burnham Lambert, Inc.], 791 F.2d [1156,] 1162 [ (5th Cir.1986) ] (footnote omitted). “Both delay and the extent of the moving party’s participation in judicial proceedings are material factors in assessing a plea of prejudice.” Frye [v. Paine, Webber, Jackson & Curtis, Inc.], 877 F.2d [396,] 399 [ (5th Cir.1989) ].
“ ‘ “Prejudice has been found in situations where the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.” Morewitz v. West of England Ship Owners Mut. Protection & Indem. Ass’n, 62 F.3d 1356, 1366 (11th Cir.1995). “Sufficient prejudice to infer waiver might be found, for example, if the party seeking the stay [for arbitration] took advantage of judicial discovery procedures not available in arbitration.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir.1968)....’
“Hales v. ProEquities, Inc., 885 So.2d 100, 105-06 (Ala.2003). As Justice See noted in his dissent in Hales:
“ ‘ “A party seeking to prove waiver of a right to arbitrate must demonstrate ... prejudice to the party opposing arbitration resulting from such inconsistent acts. The party arguing waiver of arbitration bears a heavy burden of proof.” ’
885 So.2d at 110 (See, J., dissenting) (quoting Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990))”

Rogers v. State Farm Fire & Cas. Co., 984 So.2d 382, 387-88 (Ala.2007).

In determining whether the plaintiffs in Rogers had shown substantial prejudice, this Court evaluated the amounts the plaintiffs had expended in the litigation before the defendant invoked the appraisal clause. Finding that the plaintiffs had not adequately defined the expenses as applicable to the claim under consideration, this Court could not conclude that the plaintiffs “have carried their heavy-burden of showing substantial prejudice from [the defendant’s] delayed invocation .... ” 984 So.2d at 388. As stated above, Crews provides no evidence indicating that he has expended time or money in the litigation process; he, like the Rogers-es, has failed to carry his heavy burden of showing substantial prejudice by Markel’s delay in asserting its right to compel arbitration. Accordingly, even if, arguendo, Markel did substantially invoke the litigation process by removing the action to federal court and by seeking arbitration only after the federal court remanded the case to the state court, Crews has failed to demonstrate substantial prejudice as the result of Markel’s action. This Court has stated:

“In interpreting an arbitration provision, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’ Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).”

Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 927 (Ala.2007) (emphasis omitted; emphasis added).

C. Scope of the arbitration agreement

Crews argued to the trial court that the “language [of the arbitration agreement] drafted by defendant Markel ... does not apply to any other defendant in this action.” The arbitration agreement, quoted above, requires that “[i]n the event that You or We disagree concerning whether any or all of the loss is covered by the policy, You and We will resolve this disagreement through arbitration.” It goes no further, and it references no other parties. The order of the trial court stated as follows in the case styled as Thomas C. Crews, Plaintiff v. National Boat Owners Association (NBOA) Marine Insurance Agency, Inc.; et al. Defendants :

“This matter having come before this Court on Defendant Markel American Insurance Company’s Motion to Compel Arbitration and Stay Proceedings, it is hereby:
“ORDERED, ADJUDGED, and DECREED AS FOLLOWS:
“1. The Motion to Compel Arbitration is granted with respect to all claims presented in this action; and
“2. Arbitration shall proceed pursuant to the contract of insurance issued by Markel American Insurance Company to Plaintiff Thomas Crews, a copy of which is attached to the complaint; and
“3. The Motion to Stay is granted with respect to all proceedings before this Court relating to this cause pending the completion of the arbitration of all claims presented in this action.”

(Capitalization in original; emphasis added.)

This Court has held:

“A party to a contract can be forced to arbitrate only those issues he or she specifically agrees to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-44, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). General rules of contract interpretation require that the intent of the parties be derived from the words of the contract, unless an ambiguity exists. Loerch v. National Bank of Commerce, 624 So.2d 552 (Ala.1993).”

Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997). The arbitration agreement by its terms extends to Crews and Markel, the parties to the insurance policy in which the agreement was included. The arbitration agreement exists to provide a nonjudicial means to determine whether coverage for a given loss exists under the policy, and because all the claims in the complaint arise out of Mark-el’s denial of coverage, those claims could be resolved by the arbitration of the loss-coverage issue.

We hold, however, that Crews waived on appeal the issue of NBOA’s and Ashe’s standing to compel arbitration under the arbitration agreement when he failed to argue the issue in his opening brief. “When an appellant fails to argue an issue in its [initial] brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982).

The trial court extended its order to all claims presented in the action and included the claims against the other defendants, who are not signatories to the contract containing the arbitration agreement. Inasmuch as this aspect of the order was not challenged on appeal, we affirm the order of the trial court that all claims presented in the action be arbitrated.

Conclusion

The arbitration agreement is a part of the policy of insurance issued by Markel to Crews. Although Markel availed itself of the litigation process, it did not, by doing so, waive the right to arbitration because Crews has not demonstrated that he was substantially prejudiced by Markel’s actions. The order of the trial court staying all proceedings relating to the cause pending the completion of the arbitration of all claims presented in this action is affirmed.

AFFIRMED.

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

      . During the pendency of this appeal the parties collectively filed with this Court several motions to strike. All the motions were intended to strike from the briefs documents and related arguments that were not included in the record. We do not address the motions because most concerned documents that are not applicable to our consideration of the propriety of the order compelling arbitration; the rest were not used in our deliberations.

      . 28 U.S.C. § 1446(b) provides: "The notice of removal of a civil action ... shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading. ...” Markel filed its notice of removal on November 1, 2005, more than 30 days after it received the complaint on September 12, 2005. Ashe and NBOA were served on September 10, 2005.

      . Markel noted in its motion that the motion was based on the same policy and General Amendatory Endorsement section that Crews had included in his complaint.

      . The clause under consideration in Rogers was an appraisal clause, but the Court applied the standard for determining whether there had been a waiver of the right to invoke an arbitration agreement. There, this Court said:
      "Although this Court has never ruled on what standard should be applied to determine whether there has been a waiver of the right to invoke an appraisal clause in an insurance policy, the former Court of Appeals previously indicated that the same standard applies to both appraisal and arbitration clauses. See Chambers v. Home Ins. Co. of New York, 29 Ala.App. 34, 37, 191 So. 642, 644 (1939).”

        Rogers, 984 So.2d at 386.