author: BOLIN, Justice. MURDOCK, Justice

text:
    GALAXY CABLE, INC., d/b/a Galaxy Cablevision v. Pamela DAVIS, as next friend of Benjamin Drake Davis, a minor.
    1090086.
    Supreme Court of Alabama.
    Sept. 10, 2010.

      John D. Gleissner of Rogers & Associates, Birmingham, for appellant.
    Byron G. McMath and Ontkeno K. Bo-man of McMath Law Firm, P.C., Jasper, for appellee.
   BOLIN, Justice.

Galaxy Cable, Inc., doing business as Galaxy Cablevision (“Galaxy”), appeals from a judgment entered on a jury verdict in favor of Pamela Davis, as next friend of Benjamin Drake Davis, a minor, on Pamela’s claims alleging negligence and wantonness. We affirm in part and reverse in part.

Facts and Procedural History

On January 21, 2005, then 11-year-old Benjamin was playing at Tammy Thomas’s house with Thomas’s minor son, Tyler. Thomas’s house was owned by her father, Sammy McCullar. The property includes a basketball court, which is located near a power line. Benjamin and Tyler were playing basketball and, during the game, Benjamin was injured when he fell into an exposed and frayed metal guy wire, which was supporting a utility pole. Benjamin’s leg was lacerated by the frayed wire. The utility pole belonged to Alabama Power Company, and Galaxy had a lease agreement with Alabama Power that allowed it to attach one of its cables to the pole.

On January 18, 2007, Pamela sued Thomas, McCullar, Galaxy, and Alabama Power, alleging negligence and wantonness. Subsequently, Pamela moved to dismiss Thomas and McCullar as defendants; her motion was granted. Alabama Power was dismissed as a defendant immediately before the trial began, leaving only Galaxy as a defendant.

At trial, Benjamin testified that he had been invited to play with Tyler on January 21, 2005. The boys were playing basketball between 4:30 p.m. and 5:30 p.m. when Benjamin went to retrieve the ball and tripped over the guy wire, lacerating his leg. Benjamin testified that it was still light outside when the incident occurred. He stated that no weeds or grass obstructed his view of the guy wire. Benjamin testified regarding the pain associated with his injury.

Pamela testified regarding the extent of Benjamin’s injury. Tyler also testified regarding the incident. Tammy Thomas testified that the basketball court was set up on a lawn that she mowed and maintained. Thomas said that she mowed around the guy wire with her riding lawn mower when she mowed the area and that she sprayed herbicide on the ground around the guy wire to keep vegetation down during the seven years she had lived on the property. She stated that she never hit the guy wire with her riding lawnmower and that no cars ever parked near the guy wire. Thomas stated that, before this accident, no one had ever run into the guy wire. Thomas stated that she had never noticed a problem in the guy wire before the incident. She stated that, on the day of the accident, the steel guy wire was frayed at the bottom near the ground and that a plastic yellow guard that would usually cover the bottom of the guy wire was pushed up to the top of the guy wire. Thomas stated that she had never noticed the yellow guard before and that she did not know how long it had been at the top of the guy wire.

Sammy McCullar testified that he visited his property every other day and that he had never seen the guy wire “unbraid-ed,” as it was on the day of the accident. He stated that he thought it must have been unbraided for only a short time because he would have noticed if it had been unbraided for a long time. When McCul-lar was asked if he had ever seen Tammy Thomas cut the grass next to the guy wire, he stated: “You can’t cut grass up close to a guy wire, because it will knock you off of the lawn mower.”

Gregory Berthaut, a regional manager for Galaxy, testified as to how guy wires are installed, why they are installed, and the procedures followed when complaints about guy wires are made. Berthaut explained that a guy wire is made of multiple strands of wire that are braided together and that a yellow guy-wire guard is placed over the bottom of the guy wire near the ground and sometimes secured to a “preform” at the bottom of the guy wire to prevent the yellow guy-wire guard from moving. He stated that the plastic guy-wire guard is yellow so it is visible and someone could avoid it and so that people would avoid hitting the guy wire with a lawn mower when they are mowing in the vicinity of the guy wire. Berthaut was asked if Galaxy required that yellow guards be placed over guy wires, and he stated: “It is not in writing required. Any that you install now, you do. But there’s wires that have been out for 20, 25 years that don’t have these on them, both telephone, power, and cable.” He stated that someone would have to physically move a yellow guy-wire guard in order for the guard to be at the top of the utility pole. Berthaut also stated that over time ultraviolet rays weaken the yellow plastic guards.

Berthaut further testified that Galaxy performs annual leakage “ride-outs” as required by the Federal Communication Commission, to make sure that communication signals do not interfere with aircraft communications. During the annual ride-out inspections, the Galaxy employees rarely get out of their vehicles. He stated that to conduct a “ride-out” a technician rides around to look at the top of the poles and that no technician had reported that the yellow guard was at the top rather than the bottom of the guy wire attached to the pole that is the subject of this case. Berthaut stated that he did not know if Galaxy was the entity that had installed the yellow guard on the pole near Thomas’s house because Galaxy had purchased the cable system from another company. He further testified that, if Galaxy employees are out on a service call and they see a problem, they usually correct it immediately. Berthaut testified that when Galaxy employees went to repair the guy -wire after Benjamin’s injury, Alabama Power had already repaired it.

After Berthaut’s testimony, Pamela rested her case. Galaxy filed a motion for a judgment as a matter of law (“JML”). Galaxy read from portions of its written motion for a JML and discussed the arguments raised in the motion. Galaxy argued that Benjamin was a social guest of Tammy Thomas and that it owed Benjamin no duty, that there was no evidence of negligence or wantonness, that Galaxy had no notice of the allegedly dangerous condition, that the condition was open and obvious, that someone had intentionally placed the yellow guy-wire guard at the top of pole, and that a yellow guard is not required.

In response to Galaxy’s motion for a JML, Pamela argued that Galaxy had raised several defenses in the motion that it had not raised in its answer and that those defenses had been waived. Pamela argued that the only affirmative defenses raised in Galaxy’s answer were assumption of the risk and contributory negligence. Pamela argued that there was ample evidence to support both the negligence and the wantonness claims. The trial court denied Galaxy’s motion for a JML. Galaxy then recalled Berthaut and Benjamin to testify.

The trial court charged the jury. Following deliberations, the jury returned a verdict in favor of Pamela in the amount of $30,000 in compensatory damages and $120,000 in punitive damages. Galaxy then filed a posttrial motion for a JML. The trial court held a hearing on the motion, but never ruled on the motion, which was denied by operation of law. Galaxy timely filed this appeal.

Discussion

Galaxy argues that the jury verdict is not supportable; it argues that no duty was imposed on it because no one could have superior knowledge of what was an open and obvious defect.

The duty owed by a landowner to an injured party depends upon the status of the injured party in relation to the landowner’s land, i.e., is the injured party a trespasser, a licensee, or an invitee. A landowner owes a duty to a trespasser not to wantonly or intentionally injure him by dangers known by the landowner. A person who enters land with the landowner’s consent to bestow some material or commercial benefit is an “invitee,” and a landowner owes an invitee the duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee. An entrant who is on the landowner’s property with the landowner’s consent or as his social guest, but with no business purpose, is a “licensee,” to whom the landowner owes a duty not to willfully, wantonly, or negligently injure him.

With regard to its argument that it owed no duty to Benjamin because this condition was open and obvious, Galaxy cites Dolgencorp, Inc. v. Taylor, 28 So.3d 737 (Ala.2009), Ex parte Neese, 819 So.2d 584 (Ala.2001), Browder v. Food Giant, Inc., 854 So.2d 594 (Ala.Civ.App.2002), Alabama Power Co. v. Williams, 570 So.2d 589 (Ala.1990), and Jones Food Co. v. Shipman, 981 So.2d 355 (Ala.2006), all of which involve an invitee.

In its brief, Galaxy states:

“The Court and parties wrestled with the premises liability categories, and although the plaintiff was not so categorized, as Galaxy Cable never invited or permitted his presence, Galaxy Cable nevertheless urged the imposition of the comparable lack of duty. We urge the Court to determine the duty to Galaxy Cable in this case with reference to the non-party owner and occupier of the land, the dominant estate, which means the plaintiff is a social guest was a licensee.”

(Galaxy’s brief, p. 22.) The record indicates that the trial court did not charge the jury regarding a landowner’s duty nor did the court charge the jury regarding Benjamin’s status. Moreover, following the jury charges, counsel for Galaxy stated:

“Okay, Judge. And that’s — that’s all. I agree that we shouldn’t pigeon hole as far as licensee, trespasser, invitee, social guest, et cetera, et cetera.”

Clearly, Galaxy acquiesced to the trial court’s failure to charge the jury on any applicable premises-liability duty owed by Galaxy; therefore, any error as to this issue was invited by Galaxy. See Dorsey v. State, 881 So.2d 460 (Ala.Crim.App.2001) (defendant failed to object to court’s method of remedying a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), violation and acquiesced in the method), reversed on other grounds, 881 So.2d 533 (AIa.2003). Additionally, the transcript indicates that Galaxy argued before the trial court in its motion for a JML that Benjamin was a social guest, i.e., a licensee. Accordingly, we decline to now hold that Benjamin was an invitee.

Although Benjamin was injured on land belonging to another, which land was the subject of an easement, the parties did not agree as to Benjamin’s status or the duty owed by the landowner, and Galaxy waived the issue whether it owed Benjamin any specialized duty. Thereafter, the trial court charged the jury as to the general duty of care owed in a negligence action, as follows:

“Negligence is the failure to discharge or perform a legal duty owed to the other party. The duty owed by the defendant to the plaintiff was to exercise reasonable care and not to injure or damage the plaintiff. That is to exercise such care as a reasonably prudent person would have exercised under the same or similar circumstances.”

We note that the trial court did not charge the jury regarding open and obvious conditions. Galaxy fails to argue that the trial court should have charged the jury as to this affirmative defense. Failure by an appellant to argue an issue in its brief waives that issue and precludes it from consideration on appeal. Ex parte Riley, 464 So.2d 92 (Ala.1985). Because the jury was not charged regarding open and obvious conditions and because Galaxy does not on appeal raise this issue as error by the trial court, there is no need to address the merits of Galaxy’s argument that the damaged guy wire constituted an open and obvious condition.

Galaxy argues that because Pamela failed to present any evidence of industry standards, electrical codes, ordinances, manuals, or other technical material that Galaxy violated, Pamela failed to present evidence indicating that Galaxy owed a duty to Benjamin. We recognize that evidence of a defendant’s compliance with applicable industry standards may be relevant and admissible for purposes of determining whether a defendant breached a duty of care it owed an injured plaintiff. See Standard Plan, Inc. v. Tucker, 582 So.2d 1024 (Ala.1991) (holding that expert’s opinion as to insurance-industry standard was admissible as long as a proper foundation was laid); King v. National Spa & Pool Inst., Inc., 570 So.2d 612 (Ala.1990) (holding that evidence that manufacturer complied with or did not comply with industry standards was admissible as evidence of due care or lack of due care). However, the failure to present evidence of industry standards or codes does not mean that a plaintiff has failed to present evidence that the defendant owed the plaintiff a duty. The duty of care is an objective standard determined by what an ordinary careful and prudent person would have done under the same or similar circumstances. Standifer v. Pate, 291 Ala. 434, 439, 282 So.2d 261, 266 (1973) (“Negligence is the want of such care as an ordinary or reasonably prudent and careful man would exercise under similar circumstances.”).

Next, Galaxy argues that Alabama Power Co. v. Moore, 899 So.2d 975 (Ala.2004), requires reversal on the issue of causation because, it says, in this case, it is obvious that the guy wire had been tampered with and that that had caused Benjamin’s injury. In Moore, 899 So.2d 975, a restaurant patron inadvertently parked his automobile atop the anchored end of a guy wire, which supported an electrical pole owned by Alabama Power Company. His car became hung on the guy wire, and, using his own hand tools, the patron broke the guy wire from its anchor. The guy wire then sagged and touched an electrified “stinger wire” that ran a few inches beneath the guy wire near the top of the electrical pole. The patron was electrocuted when the electricity conducted by the stinger wire traveled down the guy wire while the patron was holding the guy wire in his hand. This Court held that the intentional conduct of the patron superseded any alleged negligence or wantonness of Alabama Power because Alabama Power could not reasonably have foreseen the kind of harm that resulted from the intentional destruction of its equipment. Moore is easily distinguishable from the present case.

A foreseeable intervening act does not break the causal relationship between the defendant’s action and the plaintiffs injuries.

“ ‘[T]he line is drawn to terminate the defendant’s responsibility’ for injuries of the unanticipated sort resulting from ‘intervening causes which could not reasonably be foreseen, and which are not normally part of the risk created.’ ... Among those injuries are those that result from ‘intentional or criminal acts against which no reasonable standard of care would require the defendant to be on guard,’ such as ‘destructive meddling with property.’

Moore, 899 So.2d at 979 (quoting Prosser and Keeton on the Law of Torts § 44, at 312, 311 (5th ed. 1984)). In Moore, the plaintiff intentionally cut the guy wire and was injured. Here, someone moved the yellow protective guard, which allowed the braided wires on the guy wire to be exposed and to become frayed, and when Benjamin fell over the wires, his leg was lacerated. There was testimony that the plastic yellow guards deteriorate and that there are guy wires without yellow guards that have been that way 20 years. Ber-thaut’s testimony, which Galaxy cites as evidence that someone intentionally moved the yellow guard to the top of the wire, where it was on the day of the incident, indicates that the only way the yellow guard could have been moved all the way to the top of the guy wire was if someone had a “bucket” truck and that it would be hard to move it even if someone had a ladder. Berthaut’s testimony indicates that the children playing basketball near the guy wire would not have moved the yellow guy-wire guard to the top of the wire. Accordingly, Moore does not require a reversal here.

Next, Galaxy argues that the trial court erred in finding that Pamela presented clear and convincing evidence of wanton conduct as required by § 6-11-20, Ala.Code 1975, for an award of punitive damages. “ ‘An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion.’ ” Jim Walter Homes, Inc. v. Nicholas, 843 So.2d 133, 135 (Ala.2002) (quoting Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala. 2000)). Ex parte Norwood Hodges Motor Co., 680 So.2d 245 (Ala.1996), sets out the standard a trial judge is to use when a defendant objects to the submission of the question of punitive damages to the jury: “[W]hether there was evidence of such quality and weight that a jury of reasonable and fair-minded persons could find by clear and convincing evidence that the defendant consciously or deliberately engaged in [wantonness].” 680 So.2d at 249.

Specifically, Galaxy argues that wantonness requires knowledge of the existing conditions and that McCullar and Thomas (the owner and occupier of the property, respectively) did not have knowledge of any danger and that Galaxy also lacked knowledge of any danger. “The lack of notice — by any of the witnesses or to Galaxy Cable — refutes the consciousness required to support the wantonness count and punitive damages.”

“' “Wantonness” has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. To prove wantonness, it is not essential to prove that the defendant entertained a specific design or intent to injure the plaintiff.’
“Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998).”

Ervin v. Excel Props., Inc., 831 So.2d 38, 41 (Ala.Civ.App.2001). “To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.” Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994).

Galaxy appears to argue that it had to have notice that the yellow guard had been moved in order for a jury to find it guilty of wantonness. Although Galaxy did not have to have actual knowledge of the defect in the guy wire in order for a jury to find wantonness because wantonness is conduct carried on with a reckless or conscious disregard of the rights of safety of others, Lance v. Ramanauskas, 731 So.2d 1204, 1211 (Ala.1999), there is insufficient evidence of wantonness in this case. There was evidence indicating that Galaxy, when it placed yellow guy-wire guards on guy wires, did so because guy wires are dangerous and the guard protects the guy wire from being hit by people, cars, or lawnmowers. The yellow guard in this case had been pushed to the top of the guy wire. The fact that Galaxy, when it was conducting its annual inspection of poles for other purposes or when conducting service calls for other problems, did not notice that the yellow guard had been moved does not support a finding of a conscious disregard for the rights or safety of others because it is speculative to conclude that the position of the yellow guy-wire guard was the same at the time of any such inspection of the pole by Galaxy as it was on the date of Benjamin’s injury. Accordingly, Pamela failed to present sufficient evidence of wantonness on Galaxy’s part.

Because of our holding as to wantonness, we pretermit the remainder of Galaxy’s arguments regarding the punitive-damages award.

Conclusion

We affirm the trial court’s judgment in favor of Pamela based on her negligence claim. However, we reverse that part of the judgment in favor of Pamela based on her wantonness claim because the evidence to support that claim was insufficient. We therefore remand the case for the trial court to set aside the punitive-damages award.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

WOODALL, J., concurs in the result.

MURDOCK, J., concurs in the result in part and dissents in part.

MURDOCK, Justice

(concurring in the result in part and dissenting in part).

I concur in the result reached by the main opinion insofar as it reverses that aspect of the trial court’s judgment involving the award of punitive damages. I dissent from the affirmance of the trial court’s judgment as to Pamela’s negligence claim. Under the facts of this case, I am not persuaded that the evidence was sufficient to support a finding that negligence on the part of Galaxy caused Benjamin’s injury.

      . On April 7, 2010, Galaxy moved to supplement the record with the following: its requested jury instructions, the motion for a JML filed at the close of Pamela's case, any transcribed or written jury questions, the trial exhibits, and any other documents constituting the entire record. The motion was granted. The clerk filed a response that is included in the supplemental record. She states in her response that Galaxy’s requested jury instructions, motion for a JML, and any transcribed or written questions from the jury were never filed in the clerk’s office. She stated that all the exhibits had been mailed to this Court and that all other documents had been included in the original record.

      . Galaxy makes no argument regarding its status as a licensed user of Alabama Power's utility pole placed on an easement held by Alabama Power.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    HARLAN HOME BUILDERS, INC., et al. v. Chris W. HAYSLIP and The Townes of North River Development Company, LLC.
    1080915.
    Supreme Court of Alabama.
    Sept. 17, 2010.
    Andrew P. Campbell and Gregory A. Brockwell of Leitman, Siegal, Payne & Campbell, P.C., Birmingham, for appellants.
    Brent D. Hitson of Burr & Forman LLP, Birmingham; and William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellees.
   MURDOCK, Justice.

Harlan Home Builders, Inc. (“Harlan Home Builders”), Christopher Dobbs, and Teresa Dobbs appeal from a dismissal of their fraud claim against Chris W. Hayslip and The Townes of North River Development Company, LLC (“The Townes”), entered by the Tuscaloosa Circuit Court. We dismiss the appeal.

I. Facts and Procedural History

The .Dobbses own Harlan Home Builders, a construction company. Harlan Home Builders and Hayslip formed The Townes as a vehicle to acquire and develop real property on Rice Mine Road in Tuscaloosa. The real property subsequently was developed into a residential and commercial area known as “The Townes of North River” (“the development”). Chris Dobbs and Hayslip were the managers of the development.

Teresa Dobbs owns and manages a real-estate company, Dobbs Realty, LLC (“Dobbs Realty”). According to Teresa Dobbs, The Townes agreed that Dobbs Realty would be the exclusive broker for sales of lots in the development to the public by various builders, who would acquire the lots from The Townes.

Despite early success with respect to the sale of lots, Chris Dobbs and Hayslip started disagreeing over various management issues regarding The Townes. To settle the disputes, Dobbs and Hayslip agreed to mediation.

On June 18, 2007, Harlan Home Builders, Chris Dobbs, and Hayslip executed a mediation agreement (“the mediation agreement”) in which Chris Dobbs agreed to purchase Hayslip’s interest in The Townes within 60 days for the sum of $3,825,000. The mediation agreement allowed the Dobbses and Harlan Home Builders to obtain a 30-day extension for purchasing Hayslip’s interest in The Townes through a nonrefundable payment of $50,000. The mediation agreement stated that, once Chris Dobbs had purchased Hayslip’s interest in The Townes, the parties would cause The Townes to convey 10 acres of undeveloped property it owned to Hayslip. The mediation agreement also provided that, within 12 months of the date of the mediation agreement, Hayslip would be entitled to purchase from The Townes at a price of $120,000 three “cottage lots” adjacent to a residence he owned in the development. Finally, the mediation agreement provided for the release of possible claims by the parties against one another, stating:

“As part of the resolution of current disputes and in consideration of the agreements herein, Hayslip and Dobbs hereby release and remise any and all claims, suits, demands and/or causes of action that they have or may have against the other.
“Should there be any dispute or issue with respect to any terms or conditions of this agreement, such issues or disputes shall be resolved by the mediator Charles Denaburg.”

The Dobbses allege that, in the mediation, Hayslip misrepresented the value of the development, i.e., he said its worth was $14,765,000 when he knew that it had been appraised at $12,025,000. The Dobbses claim that it was on the basis of Hayslip’s representation of the value of the property that Chris Dobbs signed the mediation agreement, agreeing to pay $3,825,000 for Hayslip’s interest in The Townes. They thus contend that the mediation agreement was the product of fraud.

The Dobbses and Harlan Home Builders exercised their right to extend the deadline for purchasing Hayslip’s interest in The Townes by paying Hayslip $50,000. Despite doing so, the Dobbses allege, Chris Dobbs was unable to obtain the financing necessary to purchase Hayslip’s interest in The Townes because Hayslip’s interest was worth “substantially less” than he had claimed in the mediation.

The Dobbses allege that, even after the execution of the mediation agreement, Hayslip continued to “take actions to force the [Dobbses] out of the business and squeeze out their interests.” Among Hayslip’s actions, according to Harlan Home Builders and the Dobbses’ complaint, was his interference with business relationships Teresa Dobbs had with various builders for her representation in selling lots in the development to customers. The Dobbses allege that Hayslip told various builders that Teresa Dobbs did not have the exclusive right to list properties for sale in the development. Hayslip also allegedly purchased property himself that he and Chris Dobbs had agreed should be purchased by The Townes. They further allege that Hayslip continued to refuse to cooperate with Chris Dobbs regarding the management of The Townes, creating a deadlock within the company.

On January 23, 2008, Harlan Home Builders and the Dobbses filed a complaint in the Tuscaloosa Circuit Court against Hayslip and The Townes alleging that Hayslip had breached his fiduciary duty to The Townes, had interfered with business relationships, and had committed oppression and fraud, and they requested dissolution of The Townes.

On February 25, 2008, Hayslip and The Townes filed a motion to dismiss the complaint and attached the mediation agreement to their motion. Hayslip and The Townes contended that Harlan Home Builders and the Dobbses’ claims were barred by the mediation agreement; in the alternative, they contended that the claims against them had to be submitted to mediator Charles Denaburg for resolution in accordance with the mediation agreement.

On March 7, 2008, Hayslip filed a counterclaim against the Dobbses, asserting that they had breached the mediation agreement by failing to pay him $3,825,000 for his interest in The Townes and by failing to convey the real property specified in the mediation agreement to be conveyed to him. Hayslip requested damages of $8,000,000, as well as specific performance of the mediation agreement. On March 11, 2008, Hayslip filed a motion for a summary judgment as to his counterclaim.

Harlan Home Builders and the Dobbses filed a motion for a summary judgment on March 25, 2008, asking for the dismissal of Hayslip’s counterclaim, and they responded to Hayslip and the Townes’ motion to dismiss the complaint. They argued that the mediation agreement should be ignored for three reasons. First, they contended that the mediation agreement had been induced by fraud and therefore was invalid. Second, they contended that the mediation agreement was merely an “agreement to agree” rather than an actual contract. Third, they contended that if the mediation agreement ever was an enforceable agreement, it was an expired option contract.

The trial court heard arguments on the parties’ motions on April 1, 2008. On May 12, 2008, the trial court issued an order referring some of the issues to the mediator, Denaburg, but Denaburg declined to resolve the issues and referred the matter back to the trial court. In a hearing on August 22, 2008, the trial court issued several rulings from the bench concerning the parties’ motions. It denied the motions for a summary judgment concerning Hayslip’s counterclaim filed both by Harlan Home Builders and the Dobbses and by Hayslip. It denied Hayslip and The Townes’ motion to dismiss the complaint to the extent that they sought the dismissal of claims that arose after the date of the June 18, 2007, mediation. Finally, the trial court requested additional briefing on whether Harlan Home Builders and the Dobbses could assert fraud claims based solely on misrepresentations that allegedly occurred during the mediation proceedings.

On January 7, 2009, the trial court held another hearing on the viability of Harlan Home Builders and the Dobbses’ fraud claim related to the mediation agreement. As a result of that hearing, the trial court issued an order that provided, in pertinent part:

“The Court heard oral arguments regarding whether a party could assert fraud claims based upon alleged misrepresentations made solely during and as part of mediation proceedings and as a result thereof the Court granted [Hays-lip and The Townes’] motion to dismiss [Harlan Home Builders and the Dobbs-es’] fraud claims based upon alleged misrepresentations made during mediation. [Harlan Home Builders and the Dobbs-es] were given thirty days to amend their complaint. A proposed order dismissing said claims is to be prepared by [Hayslip and The Townes].”

On March 2, 2009, the trial court entered an “Order on Defendants’ Motion to Dismiss” that provided, in pertinent part:

“This matter having come before the Court on [Hayslip and The Townes’] motion to dismiss and amended motion to dismiss, the Court having requested and received additional briefing from the parties on the issue of the applicability of Rule 11 of the Alabama Civil Court Mediation Rules to [Harlan Home Builders and the Dobbses’] claims and/or defenses in this matter, and the Court having heard oral argument from the parties on December 17, 2008, and on January 7, 2009, the Court hereby ORDERS, ADJUDGES, and DECREES as follows:
“1. Rule 11 of the Alabama Civil Court Mediation Rules is applicable to the fraud and/or mistake claims and/or defenses asserted by [Harlan Home Builders and the Dobbses] in this matter, and Rule 11(c) prevents this Court from considering any evidence of alleged fraudulent misrepresentations that were allegedly made by [Hayslip and The Townes] during a mediation.
“2. All of [Harlan Home Builders and the Dobbses’] claims and/or defenses arising out of, premised on, or that otherwise rely upon, any alleged misrepresentations or statements allegedly made during the June 18, 2007, mediation proceeding at issue in this matter are hereby dismissed.
“8. [Harlan Home Builders and the Dobbses] shall file an amended complaint within thirty (30) days of the date of this Order setting forth with particularity any and all claims they allege against [Hayslip and The Townes] that are not based on the June 18, 2007, mediation, and that they allege arose after the [mediation] Agreement agreed to by the parties on June 18, 2007.”

On March 13, 2009, Harlan Home Builders and the Dobbses filed a motion pursuant to Rule 5, Ala. R.App. P., requesting that the trial court certify its March 2, 2009, order for an immediate permissive appeal or, in the alternative, that the trial court certify its March 2, 2009, order as a final judgment subject to immediate appeal, pursuant to Rule 54(b), Ala. R. Civ. P. On March 19, 2009, the trial court entered an order denying Harlan Home Builders and the Dobbses’ motion in part and granting it in part. Specifically, the trial court denied Harlan Home Builders and the Dobbses’ request for relief under Rule 5, Ala. R.App. P., but concluded that there was “no just reason for delay and ... expressly directed] that the order of March 2, 2009, be entered as a final judgment pursuant to Ala. R. Civ. P. 54(b).”

Harlan Home Builders and the Dobbses filed a timely appeal of the trial court’s March 2, 2009, order.

II. Analysis

Harlan Home Builders and the Dobbses make several arguments as to the trial court’s alleged error in dismissing their fraud claim against Hayslip and The Townes. Before considering those arguments, however, it is incumbent upon this Court to determine whether it has jurisdiction to hear this appeal.

““‘As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties.... ”
“‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’
“Powell v. Republic Nat’l Life Ins. Co., 298 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Investment Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).
“ ‘Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.’
“Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).”

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344-45 (Ala.2008).

In reference to certifications under Rule 54(b), Ala. R. Civ. P., this Court has stated that

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

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006).

This Court has also spoken to the more specific situation involved in this case, i.e., certification of a judgment disposing of a claim while an unadjudicated counterclaim remains before the trial court. In Summerlin v. Summerlin, 962 So.2d 170, 173 (Ala.2007), this Court summarized the factual background to the Court’s holding in Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1873, 1374 (Ala.1987):

“[T]he trial court certified as a final judgment, under Rule 54(b), its summary judgment in favor of SouthTrust Bank on its claim that Branch had defaulted on a promissory note. 514 So.2d at 1373. However, at the time of the Rule 54(b) certification, the trial court had not ruled on Branch’s counterclaim, which was ‘based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claimfed] he relied in executing the promissory note.’ 514 So.2d at 1374. This Court set aside the Rule 54(b) certification and remanded the case to the trial court, noting that because the issues in SouthTrust’s claim and Branch’s counterclaim were ‘so closely intertwined that separate adjudication would pose an unreasonable risk' of inconsistent results,’ it would not be ‘in the interest of justice’ to adjudicate the claims separately. 514 So.2d at 1374.”

In essence, we have before us in this ease a “mirror-image” of the situation in Branch. In the present case, the trial court has purported to adjudicate Harlan Home Builders and the Dobbses’ claim that Hayslip fraudulently induced Chris Dobbs into signing the mediation agreement. The trial court has not adjudicated Hayslip’s counterclaim alleging breach of the mediation agreement and his request for specific performance of that agreement. Harlan Home Builders and the Dobbses’ allegations of fraudulent inducements are, in fact, also a defense to Hays-lip’s counterclaim. See Summerlin, 962 So.2d at 173 (observing that, “[i]n form, [the plaintiffs] ‘claim’ appears to be separate and distinct from [the defendant’s] breach-of-contract counterclaim. If one looks beyond form, however, [the defendant’s] breach-of-contract counterclaim is, in substance, a defense to [the plaintiffs] petition for injunctive relief’). In other words, Harlan Home Builders and the Dobbses’ claim adjudicated by the trial court and Hayslip’s counterclaim that remains before the trial court are “so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, 514 So.2d at 1374.

It is true that in its March 2, 2009, order the trial court concluded that “[a]ll of [Harlan Home Builders and the Dobbses’] claims and/or defenses arising out of, premised on, or that otherwise rely upon any alleged misrepresentations or statements allegedly made during the June 18, 2007, mediation proceeding at issue in this matter are hereby dismissed.” (Emphasis added.) Thus, it appears that the trial court has determined that Harlan Home Builders and the Dobbses cannot use fraud as a defense to Hayslip’s breach-of-contract counterclaim. Because the trial court has not adjudicated Hayslip’s counterclaim, however, its ruling upon any defense to Hayslip’s counterclaim is not a final judgment. Consequently, “a separate adjudication by the trial court on [Hays-lip’s breach-of-contract claim] leaves open the possibility of ‘inconsistent results.’” Hammock v. Wal-Mart Stores, Inc., 8 So.3d 939, 942 (Ala.2008).

Accordingly, the trial court erred in certifying as a final judgment its order of dismissal on Harlan Home Builders and the Dobbses’ fraud claim stemming from the mediation agreement. “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974). We therefore dismiss the appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

      . Chief among these disputes was the Dobbs-es' allegation that Hayslip modified the operating agreement of The Townes without their knowledge, causing the operating agreement to state that Hayslip owned a 70 percent interest in The Townes and that Harlan Home Builders owned a 30 percent interest. The Dobbses contend that the operating agreement originally stated that the parties each held a 50 percent interest in The Townes.

      . Hayslip also appears to be using the allegations of his counterclaim seeking specific performance of the mediation agreement as a defense to Harlan Home Builders and the Dobbses' other claims for relief because the mediation agreement states that the parties "release and remise any and all claims, suits, demands and/or causes of action that they have or may have against the other.”

      . The parties have notified this Court that, while this appeal was pending, they have settled the claims between them, other than those that are the subject of this appeal. Insofar as the record before this Court is concerned, however, there is no order disposing of those claims. Instead, the record clearly reflects that no such order had been entered at the time of the trial court’s entry of a summary judgment or at the time of its purported certification of that judgment as a final judgment under Rule 54(b). For the reasons explained in this opinion, the summary judgment entered by the trial court was not a final judgment that was properly appealable to this Court at the time it was entered or at the time it was purportedly certified as final by the trial court; therefore, this Court acquired no jurisdiction over the purported appeal of that judgment. See, e.g., Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354 (Ala.2004) (stating that " '[t]he trial court cannot confer appellate jurisdiction upon this [Cjourt through directing entry of judgment under Rule 54(b) if the judgment is not otherwise "final” ’ ” (quoting Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978))).


author: WOODALL, Justice.

text:
    Bruce S. PAYNE v. MUTUAL SAVINGS LIFE INSURANCE COMPANY.
    1090665.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      Carl E. Chamblee, Jr., Birmingham, for appellant.
    William H. Brooks and Kevin E. Clark of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellee.
   WOODALL, Justice.

Bruce S. Payne appeals from a judgment on the pleadings in his action against Mutual Savings Life Insurance Company (“Mutual”) based on Mutual’s nonpayment of alleged policy benefits. We affirm.

I. Factual and Procedural Background

According to the undisputed facts, Payne purchased a “Cancer Plus Special Disease Policy” from Mutual in 1996 (“the policy”). Under its “schedule of specified benefits,” the policy listed the following two pertinent benefit provisions:

“RADIATION AND CHEMOTHERAPY BENEFIT: The usual and customary charge made by the Hospital or Doctor for radiotherapy and chemotherapy in the treatment of Cancer, but not to exceed $550 in any one day [hereinafter referred to in this opinion as ‘the doctor clause’].
“PRESCRIPTION DRUG BENEFIT: The usual and customary charge for prescription antineoplastic drugs, but not to exceed $8,000 in any one calendar year [hereinafter referred to in this opinion as ‘the pharmacy clause’].”

(Emphasis added.)

In June 2007, Payne was diagnosed with cancer and began receiving “Gleevee,” which he procured from pharmacies by prescriptions at a price of $658.82 a week, as a regimen of “oral chemotherapy.” He filed a claim with Mutual under the policy and began receiving benefits. Throughout the rest of 2007 and 2008, Mutual paid all the submitted charges for Gleevee. In 2009, however, Mutual ceased paying benefits for Gleevec once the charges exceeded $8,000.

On September 22, 2009, Payne sued Mutual. Although his complaint contained seven counts, each count had at its core an allegation that Mutual had wrongfully denied benefits for the cost of Gleevec once the amount had exceeded $8,000. Payne subsequently amended his complaint to add a claim for reformation of the policy pursuant to Ala.Code 1975, § 8-1-2. Mutual answered the initial complaint and filed a motion for a judgment on the pleadings, which the trial court granted. The trial court’s judgment stated, in pertinent part:

“All of [Payne’s] claims in this case arise from a policy of cancer insurance issued by [Mutual] to [Payne]. Within that policy is a clear and unambiguous provision that limits [Mutual’s] obligation for prescription medications to a total of $8,000 in any calendar year.... The court is satisfied ... that [Payne’s] allegations do not create genuine issues of material disputed fact and that a judgment is due to be granted on the pleadings.”

From that judgment, Payne appealed.

II. Discussion

“Rule 12(c)[, Ala. R. Civ. P.,] allows a party to move for a judgment on the pleadings. When such a motion is made, the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.”

B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala.1992). “A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party.” Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82 (Ala.2000). Review in this Court is de novo. Id.

A. The Initial Complaint

The dispositive issue raised by the initial complaint is whether charges for Gleevec are reimbursable under the doctor clause, as Payne contends, or under the pharmacy clause — with its $8,000 per year limitation — as Mutual contends. In other words, Payne’s case depends on whether there is any factual dispute as to that issue. We conclude that there is not.

In so concluding, we reject Payne’s argument that the fact that Mutual’s payments from Gleevec exceeded $8,000 for 2007 and 2008 demonstrate an ambiguity in the policy. “The question whether a contractual term is ambiguous or unambiguous is a question of law for the court to decide.” Hamilton v. Employees’ Retirement Sys. of Alabama, 14 So.3d 839, 843 (Ala.2009) (emphasis added). “[C]overage under an insurance policy cannot be created or enlarged by waiver or estoppel and, if there is no ambiguity, it is the duty of the court to enforce the policy as written.” Home Indem. Co. v. Reed Equip. Co., 381 So.2d 45, 51 (Ala.1980) (emphasis added). Regardless of why Mutual’s payments for Gleevec before 2009 exceeded $8,000 per year, both clauses are perfectly clear: the doctor clause, with its $550 per day limit, applies to charges for chemotherapy administered by a doctor or hospital; the pharmacy clause applies to charges for a chemotherapy drug dispensed as a prescription drug through a pharmacy. That Gleevec is of the latter variety is without dispute. Indeed, the complaint alleges that, as a result of Mutual’s nonpayment of certain charges for Gleevec incurred in 2009, “Payne incurred a pharmacist bill in the amount of [$7,417.89].” (Emphasis added.) Thus, the pleadings with respect to the initial complaint fail to reveal any factual dispute precluding a judgment on the pleadings.

B. Reformation

The same can be said with respect to the reformation count contained in the amended complaint. That pleading alleged that “[i]t was the intent of the parties at the time of the filing of the claim to provide insurance coverage for Payne in the manner which Mutual ha[d] heretofore paid the claim.” (Emphasis added.) Based on that allegation, Payne sought reformation, pursuant to § 8-1-2, “to provide full coverage.”

The reformation claim is fatally flawed as a matter of law. Section 8-1-2, Ala.Code 1975, provides:

“When, through fraud, a mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third persons in good faith and for value.”

(Emphasis added.) “This statute is merely declaratory of the established principle applicable to the reformation of instruments.” American Liberty Ins. Co. of Birmingham v. Leonard, 270 Ala. 17, 21, 115 So.2d 470, 473 (1959)(speaking of predecessor statute). The law is well established that, for purposes of contract reformation, the pertinent inquiry is what the parties had “agreed upon at the time the instruments were executed.” Jim Walter Homes, Inc. v. Phifer, 432 So.2d 1241, 1244 (Ala.1983) (second emphasis added). See also Federated Guar. Life Ins. Co. v. Painter, 360 So.2d 309, 311 (Ala.1978) (“Since the plaintiffs basis for reformation is grounded upon a mutual mistake of the parties, he had the burden of proving by such evidence as would meet those tests that there had been a meeting of the parties’ minds on his version of their contract at the time that contract was made.”); Behan v. Friedman, 218 Ala. 513, 515, 119 So. 20, 21 (1928).

The period relevant to Payne’s reformation claim is 1996, that is, when the policy was issued, not 11 years later, as Payne contends, when he began receiving benefits, or 13 years later, when some of his claims for Gleevec were denied. Payne does not allege any fraud or mistake of fact relating to the execution of the policy. Thus, the pleadings reveal no basis for the application of § 8-1-2.

III. Conclusion

In conclusion, the trial court did not err in entering a judgment on the pleadings. That judgment is, therefore, affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte M & F BANK (In re M & F Bank v. First American Title Insurance Company).
    1090891.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      Burt W. Newsome of Newsome Law, LLC, Birmingham, for petitioner.
    Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Re-diker, LLC, Birmingham, for respondent.
   PER CURIAM.

M & F Bank (“M & F”) petitions this Court for a writ of mandamus compelling the Jefferson Circuit Court to vacate its order setting aside a previous order in which it had granted M & F’s motion to strike and/or quash subpoenas issued by the respondent, First American Title Insurance Company (“First American”), to depose certain individuals. We deny the petition.

I. Facts and Procedural History

On December 19, 2006, a plat for a subdivision referred to as Old Towne Station was recorded in the office of the Judge of Probate of Lee County. The plat showed lots numbered 1 through 94; it did not show a lot 95. On December 28, 2006, The Shoppes at Old Towne Station, LLC (“the debtor”), executed a note in favor of M & F evidencing an indebtedness of $2,855,000; the note purportedly was secured by a mortgage on “lot 95” of Old Towne Station. On January 24, 2007, First American, through its agent, Blue Title, LLC, issued a title-insurance policy (“the policy”) to M & F insuring M & F’s purported interest as mortgagee in lot 95.

The debtor subsequently defaulted on the loan. As a result of the “title work” performed in preparation for a foreclosure on the mortgage, M & F discovered that lot 95 was not included on the recorded plat. On October 29, 2008, M & F notified First American that it was making a claim under its title-insurance policy. On November 19, 2008, M & F — represented by attorney Burt Newsome — filed an action against Blue Title and First American in the Jefferson Circuit Court, alleging breach of contract. On April 27, 2009, M & F amended its complaint to include claims of negligence and bad faith against First American.

After being served with process in the action filed by M & F, First American hired attorney Mark Davis to file an action in the name of M & F seeking a reformation of the mortgage held by M & F and insured by First American; Davis filed the action in the Lee Circuit Court on March 20, 2009, naming as defendants the debtor and certain purported lienholders. First American purported to take this action in accordance with what it contends were stipulations in the policy it had issued to M & F.

On March 13, 2009, the debtor filed a petition in the United States Bankruptcy Court for the Northern District of Alabama (“the bankruptcy court”) declaring bankruptcy under Chapter 7 of the United States Bankruptcy Code. The debtor hired attorney Steven Altman to represent it in the bankruptcy proceedings. The bankruptcy court appointed André Toffel, an attorney, as bankruptcy trustee. In turn, Toffel hired attorney Stephen Porterfield to represent the trustee’s interests in the bankruptcy proceedings. First American subsequently hired attorney Rick Johan-son to initiate an adversary proceeding in the bankruptcy court in the name of M & F against the debtor, the trustee, and other parties seeking reformation of the mortgage deed; Johanson filed a complaint in the bankruptcy court for this purpose on July 8, 2009. On July 27, 2009, Porterfield filed on behalf of Toffel, as trustee, an application with the bankruptcy court to sell the property that is the subject of the M & F mortgage free and clear of all liens. In effect, Toffel sought to render the mortgage to M & F of no effect.

Toffel subsequently filed an answer in the adversary proceeding initiated by Jo-hanson on behalf of M & F; Toffel asserted affirmative defenses, including that he was what is known as an “ideal bona fide purchaser” under 11 U.S.C. § 544(a) and in that capacity would be able to take the property at issue free of any mortgage interest held by M & F.

In addition, Toffel and Johanson filed competing motions for a summary judgment in the adversary proceeding in which they debated whether Toffel was an “ideal bona fide purchaser” under 11 U.S.C. § 544(a) and as such would be able to take the property free of M & F’s mortgage.

First American asserts in its answer to this Court:

“In an extraordinary twist of events, M & F’s counsel, Mr. Newsome, actually had communications with Toffel and Porterfield regarding research he had done for them and critiquing the brief Porterfield was preparing in support of their motion for summary judgment against [M & F,] Mr. Newsome’s client.... Mr. Newsome was actually doing research and assisting his client’s adversary who was attempting to have [M & F] determined to be an unsecured creditor.”

First American also asserts that, in the course of preparing submissions for the bankruptcy court on behalf of M & F, Newsome had conversations with the debt- or’s attorney, Altman, concerning Toffel’s filings with the bankruptcy court.

M & F contends that Newsome engaged in the aforesaid communications because a resolution of M & F’s action against First American “would have to involve both the debtor’s attorney and the Chapter 7 Trustee.” M & F claims that Newsome “had negotiations looking to compromise the outstanding controversies with the debt- or’s attorney [Altman], the Chapter 7 Trustee [Toffel,] and the attorney for the Chapter 7 Trustee [Porterfield].” M & F also insists that it “shares common interests” with Altman, Toffel, and Porterfield because it asserts in the Jefferson Circuit Court action that the M & F mortgage on the property is void, and the debtor and Toffel contended in the bankruptcy court that the mortgage is void.

On December 10, 2009, the bankruptcy court entered a summary judgment in favor of M & F and against Toffel with respect to the affirmative defenses asserted by Toffel in the adversary proceeding, including the defense that Toffel was an “ideal bona fide purchaser” under 11 U.S.C. § 544(a). In so doing, the bankruptcy court declined to conclude that the M & F mortgage was invalid.

On January 19, 2010, First American filed in the Jefferson Circuit Court action subpoenas for notices of deposition and requests for the production of documents to Altman, Toffel, and Porterfield concerning their communications with M & F attorney Newsome. First American contended that it needed the information to determine M & F’s role in attempting to have its own mortgage invalidated because, according to First American, such activity would bear directly on First American’s defense of the negligence, bad-faith, and breach-of-contract claims brought against it by M & F.

On February 9, 2010, M & F, through Newsome, filed a motion in the bankruptcy court to remand the adversary proceeding that had been filed on M & F’s behalf to the state court. In the alternative, M & F requested that the bankruptcy court join First American as an indispensable party to the action. On March 22, 2010, M & F filed a motion pursuant to Rule 60(b), Fed. R.Civ.P., in which M & F contended for the first time that Johanson had no authority to file an adversary proceeding on M & F’s behalf because the policy First American issued to M & F did not contain stipulations (such as those quoted in note 3 supra) that allowed First American to take such an action. It contended that the bankruptcy court accordingly should vacate its prior summary judgment in M & F’s favor.

On January 29, 2010, M & F filed a motion to quash and/or to strike the subpoenas, which the Jefferson Circuit Court granted on February 5, 2010. On February 9, 2010, First American filed a motion to reconsider or to set aside the circuit court’s order granting the motion to quash and/or to strike. The circuit court denied the motion on the following day. On February 10, 2010, First American filed a renewed motion to reconsider or to set aside the circuit court’s order granting M & F’s motion to quash and/or to strike. On March 25, 2010, the circuit court granted First American’s motion and set aside its order granting the motion to quash and/or to strike. Four days later, M ■ & F filed the present mandamus petition.

II. Standard of Review

This Court reviews a trial court’s discovery orders only “[i]n certain exceptional cases,” one of which is “when a privilege is disregarded.” Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003).

“ ‘Mandamus 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995).... Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

III. Analysis

As recounted above, the circuit court granted First American’s renewed motion to set aside the circuit court’s order granting M & F’s motion to quash and/or to strike First American’s subpoenas to take the depositions of Altman, Toffel, and Porterfield. The circuit court reasoned as follows:

“Under the Alabama Rules of Civil Procedure, ‘Parties may obtain discovery of any matter, not privileged ... if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’ Ala. R. Civ. P. 26(b)(1). [M & F] supports its motion [to strike] upon Ala. R. Evid. 408, which states that compromise and compromise negotiations are not admissible. Rule 408, however, is an exclusionary rule — it does not proscribe the discovery of compromise negotiations, it merely excludes such negotiations from being presented at trial. Notably, Rule 408 does not declare compromise actions as privileged and, thus, they do not fall within the category of discovery proscribed by Rule 26(b)(1)....
“Therefore, the Court deems that, at the very least, the discovery requested bears on the issue of the obligation of M & F Bank to mitigate its damages and, thus, the Court finds that [First American’s] request appears reasonably calculated to lead to the discovery of admissible evidence. Whether such evidence is admissible is a question which has yet to ripen.”

In its petition, M & F does not present an argument concerning Rule 408, Ala. R. Evid., or explain how the circuit court erred in its understanding of the limits of that rule as it relates to the separate action brought by M & F against First American. Instead, M & F contends that the communications between New-some, Altman, Toffel, and Porterfield constitute privileged communications between attorneys representing parties with common interests pursuant to Rule 502(b)(3), Ala. R. Evid. Rule 502(b)(3), Ala. R. Evid., provides, in pertinent part:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client ... by the client or a representative of the client or the client’s attorney or a representative of the attorney to an attorney or a representative of an attorney representing another party concerning a matter of common interest.... ”

For all that appears, however, M & F did not present the circuit court with an argument concerning Rule 502(b)(3), Ala. R. Evid., in the course of urging that court to quash and/or strike the subpoenas for deposition filed by First American. M & F attaches the transcript of the hearing on First American’s renewed motion to reconsider or to set aside the circuit court’s order granting the motion to quash and/or to strike the subpoenas, but the transcript contains no mention of Rule 502 or any argument that the communications between Newsome, Altman, Toffel, and Port-erfield are privileged communications between attorneys representing parties with common interests. The hearing focused entirely on Rule 408, Ala. R. Evid., and whether the policy First American issued to M & F contained stipulations that permitted First American to file an action on M & F’s behalf. We do not have the written submissions of the parties concerning the motion before the circuit court, but it is the responsibility of the petitioner for a writ of mandamus to provide this Court with enough of the materials below to enable this Court to make a ruling in the petitioner’s favor. See, e.g., Ex parte Ocwen, 872 So.2d at 814 n. 6 (explaining that “[t]he petitioner has the responsibility of supplying the Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition. Rule 21(a), Ala. R.App. P.”). Because it does not appear that the circuit court was presented with an argument concerning Rule 502(b)(8), we will not consider that argument as a reason for issuing the writ of mandamus. See Ex parte Ebbers, 871 So.2d 776, 786 (Ala. 2003) (stating that ‘“the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling.’ ” (quoting Ex parte Wiginton, 748 So.2d 1071, 1073 (Ala.1999))); see also Ex parte Ocwen, 872 So.2d at 814 (refusing to issue a writ of mandamus based on an argument as to which the trial court has not made the necessary findings of fact).

Though M & F never mentions Rule 408, Ala. R. Evid., in its petition, it does spend one page in its petition contending that

“M & F, through its attorney, negotiated with the attorneys for the debtor and the Chapter 7 Trustee and the Chapter 7 Trustee himself (who is also an attorney) looking to a compromise of the controversies in an effort to effect a global resolution of the case and dispose of the entire matter.”

M & F quotes Ford v. Bradford, 212 Ala. 515, 518, 103 So. 549, 551 (1925), for the proposition that “[negotiations looking to a compromise of controversies are privileged communications. This ... on grounds of public policy_” It cites Super Valu Stores, Inc. v. Peterson, 506 So.2d 317, 321 (Ala.1987), as support for its assertion that “the logic behind the privileged nature of settlement negotiations is the encouragement of the settlement of controversies.”

It is unclear to this Court how M & F’s provision of advice and assistance to Altman, Toffel, and Porterfield concerning Toffel’s motion to have M & F’s own mortgage rendered invalid or ineffective constitutes compromise negotiations. Further, as the circuit court explained, Rule 408, Ala. R. Evid., does not place a complete bar on the discovery of evidence concerning negotiations and settlements. It merely limits the admissibility of such evidence. Specifically, “a party seeking discovery of documents relating to settlement negotiations must make a ‘particularized showing’ that the requested documents are relevant and likely to lead to the discovery of admissible evidence.” Ex parte Water Works & Sewer Bd. of Birmingham, 723 So.2d 41, 44 (Ala.1998) (citing Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y.1982)).

The circuit court concluded that First American demonstrated that at the very least the depositions would lead to discoverable evidence concerning M & F’s duty to mitigate its damage. It also is apparent that the depositions could lead to discoverable evidence concerning First American’s defense to M & F’s bad-faith claim, if not also to evidence concerning its defense to M & F’s other claims. M & F does not dispute that the depositions could lead to discoverable evidence. It simply insists repeatedly that such communications are privileged under Rule 502(b)(3).

IV. Conclusion

Based on what M & F presented to the circuit court and to this Court, we cannot conclude that it is entitled to a writ of mandamus directing the circuit court to reverse its order setting aside its earlier order granting M & F’s motion to strike and/or quash the subpoenas. Accordingly, its petition is denied.

PETITION DENIED.

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

      . According to an affidavit from Chris Eck-roate, the project engineer for the Old Towne Station subdivision development, and as conceded by M & F’s attorney in a hearing on the motion below, a lot apparently was labeled "Lot 95” on the plat after it was recorded.

      . Blue Title has since been dismissed from this action.

      . First American contends that the stipulations state, among other things, that
      "[First American] shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, or to prevent or reduce loss or damage to the insured.”
      According to First American, a further stipulation states:
      "In all cases where this policy permits or requires [First American] to prosecute or provide for die defense of any action or proceeding, the insured shall secure to [First American] the right to so prosecute and provide defense in the action or the proceeding, and all appeals therein, and permit [First American] to use, at its option, the name of the insured for this purpose."

      . First American asserts, and M & F does not dispute, that Toffel has acted in his capacity as bankruptcy trustee in relation to the underlying litigation, and not as an attorney.


text:
    Ex parte AMERICAN RESOURCES INSURANCE COMPANY, INC. (In re American Resources Insurance Company, Inc. v. Restoration Coatings & Sealants, Inc.).
    1091192.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      Michael S. Jackson of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; and Sean T. Mims of Beers, Anderson, Jackson, Patty & Fawal, P.C., Birmingham, for appellant.
    Tom Burgess of Burgess & Associates, Birmingham, for appellee.
   MURDOCK, Justice.

American Resources Insurance Company, Inc. (“ARIC”), filed a declaratory-judgment action in the Mobile Circuit Court against Restoration Coatings & Sealants, Inc. (“Restoration Coatings”). ARIC is an Alabama corporation with its principal place of business in Mobile County; Restoration Coatings is an Alabama corporation with its principal place of business in St. Clair County. ARIC petitions this Court for a writ of mandamus directing the trial court to vacate an order granting Restoration Coatings’ motion to transfer the case to the St. Clair Circuit Court based on Ala.Code 1975, § 6-3-21.1(a) (the forum non conveniens statute). We grant the petition and issue the writ.

In August 2009, Brasfield & Gorrie, LLC (“Brasfield & Gorrie”), filed a third-party complaint against Restoration Coatings and several other defendants in an action pending in Escambia County, Florida (“the Escambia County action”). The action against Brasfield & Gorrie arose out of alleged defects in the construction of the Sea Watch Condominiums, which are located in Escambia County, Florida. Brasfield & Gorrie served as the general contractor on the condominium project; Restoration Coatings was one of its subcontractors.

In its third-party complaint, Brasfield & Gorrie alleged that Restoration Coatings had performed defective work related to the exterior caulking, waterproofing, and deck coating at the condominium project. Its claims against Restoration Coatings were based on an indemnity provision in Restoration Coatings’ subcontract, common-law indemnity, and contribution. ARIC, which had issued a commercial general-liability insurance policy to Restoration Coatings, defended Restoration Coatings in the Escambia County action under a reservation of rights.

In February 2010, ARIC filed its complaint in the Mobile Circuit Court, seeking a judgment declaring whether there had been an “occurrence,” as defined in the policy it had issued to Restoration Coatings, and, if there had been an “occurrence,” whether it occurred during the coverage period under the policy. ARIC also alleged that the policy did not cover certain damage that was the subject of Bras-field & Gorrie’s third-party complaint. ARIC requested that the court enter an order declaring that it had no duty to defend or to indemnify Restoration Coatings.

Restoration Coatings filed a “Motion for Change of Venue Pursuant to the Doctrine of Forum Non Conveniens.” Restoration Coatings asserted that the case should be transferred from the Mobile Circuit Court to the St. Clam Circuit Court pursuant to § 6-3-21.1(a) because, it argued, St. Clair County was a more convenient forum for the parties and the witnesses and the interest of justice necessitated a transfer. ARIC opposed the motion.

In April 2010, the trial court entered an order granting Restoration Coatings’ motion. ARIC petitions this Court for a writ of mandamus directing the trial court to vacate the April 2010 order.

“ ‘A writ of mandamus is a
“ ‘ “drastic and extraordinary writ, that will issue 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 Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). Mandamus is the appropriate device by which to challenge a trial court’s decision on a motion for a change of venue. Ex parte Sawyer, 892 So.2d 919 (Ala.2004). Furthermore, ‘[t]his Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.’ Ex parte Perfection Siding, Inc., 882 So.2d 307, 310 (Ala.2003) (citing Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002)). ‘Also, in considering such a mandamus petition, this Court is limited to those facts that were before the trial court.’ Ex parte Perfection Siding, Inc., 882 So.2d at 310 (citing Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002)).”

Ex parte Fuller, 955 So.2d 414, 415 (Ala.2006).

Alabama’s forum non conveniens statute provides:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein....”

Ala.Code 1975, § 6-3-21.1(a).

It is undisputed that St. Clair County would be a proper venue for this case. The sole basis for Restoration Coatings’ motion was that a transfer was proper under § 6-3-21.1(a), specifically that a transfer was required based upon (1) “the convenience of parties and witnesses” or (2) “the interest of justice.” ARIC argues that Restoration Coatings did not meet its burden of proof as to either of the grounds for transfer. See Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998) (“A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.”). We agree.

The only evidence Restoration Coatings submitted in support of its motion for a change of venue was a copy of its articles of incorporation, which indicate that its principal office is located in St. Clair County and that its officers are residents of St. Clair County, and an affidavit from Tony Hodges, which states:

“1. I am a principal in Restoration Coatings & Sealants, Inc. (‘Restoration’), a St. Clair County, Alabama corporation.
“2. Since its incorporation, Restoration maintains its office and primary place of business in St. Clair County, Alabama, at 1901 Courson Court, Suite 104, Leeds, Alabama.
“3. Restoration purchased its policy from American Resources Insurance Company (‘ARIC’) through an independent insurance agent, and the policy was delivered directly to it at Restoration’s office at 1901 Courson Court, Suite 104, Leeds, Alabama, in St. Clair County.
“4. Restoration has no contacts in Mobile, Alabama.
“5. Restoration has no agents, employees or property in Mobile, Alabama.”

Also, it is undisputed that ARIC has its principal place of business in Mobile County-

The purpose of the doctrine of forum non conveniens is to “prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995). In applying § 6-3-21.1, this Court has noted that a trial court should not grant a motion to transfer a case based on “the convenience of parties and witnesses” “unless the forum to which the case is to be transferred is ‘ “ ‘significantly more convenient’ than the forum in which the action is filed, as chosen by the plaintiffs.”’” Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala.1994) (quoting Ex parte Johnson, 638 So.2d 772, 774 (Ala.1994), quoting in turn Ex parte Townsend, 589 So.2d 711, 715 (Ala.1991)); see also Ex parte New England Mut. Life Ins. Co., supra.

The evidentiary submission of Restoration Coatings does not support the conclusion that the St. Clair Circuit Court is a significantly more convenient venue for the parties and the witnesses than is the Mobile Circuit Court. Although the transfer might result in a more convenient venue for Restoration Coatings, that is not the test. See Ex parte Nichols, 757 So.2d 374, 379 (Ala.1999) (“[W]hile a trial in Winston County might be more convenient for the Nicholses, it would be less convenient for the PBI principals, both of whom are key witnesses.... The doctrine of forum non conveniens ‘provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.’ ”). “Where, as in this case, ‘one party or the other will be equally inconvenienced, [the] plaintiffs choice of forum will not be disturbed.’ ” Id. Nor is there any evidence concerning how convenient St. Clair County would be for any witness who will be called at trial. Indeed, for all that appears, the pertinent witnesses will be persons who performed work on the condominium project in Escambia County, Florida, which is much closer to Mobile County than to St. Clair County. Restoration Coatings offered no evidence, however, concerning who the witnesses at trial might be, where they resided, or how the St. Clair Circuit Court might be a more convenient venue for them than the Mobile Circuit Court. Thus, the trial court could not properly have concluded that the case should be transferred to St. Clair County “for the convenience of parties and witnesses.”

Likewise, the evidence does not support the conclusion that “the interest of justice” mandates that the case be transferred to St. Clair County. As this Court stated in Ex parte McKenzie Oil Co., 13 So.3d 346, 349 (Ala.2008):

“ ‘This Court has held that litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006), citing Ex parte Sawyer, 892 So.2d 898, 904 (Ala.2004). Furthermore, the ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d at 790. Thus, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). McKenzie therefore had the burden of demonstrating ‘“that having the case heard in [the county to which transfer was sought] would more serve the interest of justice....”’ Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d at 416).”

In support of its motion to transfer, Restoration Coatings focused on the fact that the insurance policy was “negotiated, issued, and delivered” in St. Clair County, which ARIC concedes in its petition to this Court. As ARIC correctly notes, however, there is no issue in this case concerning whether ARIC issued the policy or whether some fraud or other wrongful conduct occurred in St. Clair County in relation to the issuance of the policy. The only issue is whether the events that form the basis for the Escambia County action fall within the coverage of the policy.

ARIC has its principal office in Mobile County. That county appears to have as much interest in the proper resolution of a coverage dispute between its resident insurance corporation and the insured corporation from St. Clair County as does St. Clair County. Certainly it cannot be said that the “ ‘ “connection” between the plaintiffs action and the original forum [Mobile County] is [not] strong enough to warrant burdening the plaintiffs forum with the action.’ ” Ex parte McKenzie Oil Co., 13 So.3d at 349. Likewise, it cannot be said that Mobile County is “‘a county with little, if any, connection, to the action,’ ” id., or that in comparison St. Clair County is a “ ‘county with a strong connection to the action.’ ” Id. In short, the facts before us simply do not support the conclusion that Restoration Coatings has met its burden of proving that transferring the case to St. Clair County would “more serve the interest of justice” than leaving the case in Mobile County.

PETITION GRANTED; WRIT ISSUED.

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

      . The Escambia County action apparently was still pending when ARIC filed its petition for a writ of mandamus with this Court.

      . Restoration Coatings did not argue to the trial court that Mobile County was an improper venue under § 6-3-7(a), Ala.Code 1975. Thus, any such argument has been waived. See Ex parte Navistar, Inc., 17 So.3d 219, 221 n. 1 (Ala.2009). Likewise, no issue has been presented as to whether § 6-3-21.1 (a) might be inapplicable on the ground that venue in Mobile County was improper. See Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995) ("The doctrine of forum non conveniens ... codified at § 6-3-21.1 ... has a field of operation only where an action is commenced in a county in which venue is appropriate.”). Thus, ARIC has waived any argument that § 6-3-21.1 (a) is inapplicable. Under the circumstances, we must treat Mobile County as a proper venue for this case.

      . We note that statements 4 and 5 are in the present tense. Thus, it is unclear whether Restoration Coatings had contacts, agents, employees, or property in "Mobile, Alabama” at some time before Hodges executed the affidavit, including when ARIC issued the policy or when Restoration Coatings performed the work for Brasfield & Gorrie in Escambia County, Florida. Also, the statements refer to Mobile, Alabama, which could either be a reference to the City of Mobile or to Mobile County. Thus, it is unclear whether Restoration Coatings has or had contacts, agents, employees, or property in Mobile County in places other than the City of Mobile. Nevertheless, these ambiguities do not affect our analysis. In addition, we note that Restoration Coatings alleged in its motion that ARIC "does business throughout the state." It offered no evidence to support the allegation, though it does not appear that ARIC disputed it. Even assuming that statement were properly supported, however, it likewise does not affect our analysis. It too is an ambiguous statement; it does not address specifically whether ARIC did business in St. Clair County or whether ARIC's business "throughout the state” had any particular relation to or impact upon St. Clair County or its residents.

      . We note that the present case is distinguishable from those cases relied upon by Restoration Coatings in which the plaintiff did not reside in the county where the action was filed and/or in which the complained-of wrongful action occurred in the county to which the defendant was seeking to have the case transferred.