author: STUART, Justice.

text:
    Ex parte DuBOSE CONSTRUCTION COMPANY, L.L.C. (In re James Simmons v. DuBose Construction Company, L.L.C.).
    1110239.
    Supreme Court of Alabama.
    March 16, 2012.

      John R. Bradwell of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for petitioner.
    James Simmons, pro se.
    William C. Thompson, presiding judge, and Craig S. Pittman, Tommy E. Bryan, Terry Willingham Thomas, and Terry A. Moore, judges, Alabama Court of Civil Appeals as respondents.
   STUART, Justice.

DuBose Construction Company, L.L.C., petitions this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its order issued on November 8, 2011, directing the Montgomery Circuit Court to issue a ruling on the remand ordered in DuBose Construction Co. v. Simmons, 989 So.2d 1140 (Ala.Civ.App.2008), within 28 days. We deny the petition.

I.

On February 14, 2005, James Simmons, an employee of DuBose Construction, sustained a medial meniscus tear in his right knee when he slipped and fell in a hole while working at a construction site. On April 18, 2005, Simmons underwent surgery to repair the tear; however, because of persistent pain and swelling, a second surgery was required on January 9, 2006. Simmons returned to work at DuBose Construction on March 1, 2006, but subsequently resigned on May 24, 2006, stating that the injury to his knee had affected other parts of his body and that he could no longer perform physical labor.

On August 23, 2005, Simmons sued Du-Bose Construction in the Montgomery Circuit Court seeking workers’ compensation benefits for his knee injury. Following a proceeding at which the trial court heard ore tenus evidence, the trial court entered a judgment on March 13, 2007, finding that Simmons had suffered a permanent partial disability to the body as a whole and a 15% permanent partial loss of his ability to earn and awarding benefits accordingly. DuBose Construction subsequently appealed that judgment to the Court of Civil Appeals, arguing that the trial court had erred in awarding Simmons benefits based on a loss of earning capacity because, Du-Bose Construction argued, Simmons was limited to receiving the lesser benefits allowed for the loss of use of a leg set forth in the compensation schedule in § 25-5-57(a), Ala.Code 1975.

In its opinion, the Court of Civil Appeals recognized that the general proposition advocated by DuBose Construction was correct — that compensation for injuries resulting in the loss of use of a member of the body should be awarded in accordance with the schedule set forth in § 25-5-57(a) — but also noted that this Court had established an exception to that rule in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), later modified in Ex parte Drum-mond Co., 837 So.2d 831 (Ala.2002), “allowing an unscheduled award for an injury of such severity that it impacts the claimant’s entire body.” Ex parte Addison Fabricators, Inc., 989 So.2d 498, 503 (Ala.2007). The Court of Civil Appeals ultimately concluded that it was unable to determine whether that exception should apply to Simmons, however, because “[t]he trial court did not make findings concerning whether Simmons’s injury entitled him to compensation outside the schedule.” 989 So.2d at 1143. The court further explained that it was required to remand the cause to the trial court for that court to make specific findings concerning the extent of Simmons’s injury, stating:

“In Wal-Mart Stores, Inc. v. Gardner, 885 So.2d 168 (Ala.Civ.App.2003), this court reversed the judgment of a trial court awarding the employee workers’ compensation benefits without specifically setting forth its reason for awarding benefits outside the schedule, stating:
“‘The trial court’s judgment contains no mention of the so-called “Bell [v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] test” or the rule articulated by our Supreme Court in [Ex parte ] Drummond Co., [837 So.2d 831 (Ala.2002) ]; there is no determination of the applicability of the provisions of § 25-5-57(a)(3)a. and d. It is not the role of this court to make the findings contemplated by Drummond Co., or by those statutory provisions; that is the task of the trial court. Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).’
885 So.2d at 172. Similarly, in Addison Fabricators, Inc. v. Davis, 892 So.2d 440 (Ala.Civ.App.2004), this court, relying on our decision in Wal-Mart, supra, reversed the judgment of the trial court based on its failure to make a determination as to the applicability of § 25-5-57(a)(3)a. and d. In so holding, this court concluded that the ‘ “[t]he trial judge should make a finding of every fact necessary to sustain the judgment of the court.” ’ 892 So.2d at 443 (quoting United Tel. & Tel. Co. v. Culiver, 271 Ala. 568, 570, 126 So.2d 119, 120-21 (1961)).
“Given the trial court’s failure to make findings concerning whether Simmons’s injury entitled him to workers’ compensation benefits outside the schedule, we must reverse the judgment of the trial court and remand the cause for the trial court to enter a judgment consistent with this opinion.”

DuBose Construction, 989 So.2d at 1143.

The case thus returned to the trial court where, on June 17, 2008, approximately four months after the release of the Court of Civil Appeals’ opinion, the trial court entered an order dismissing the case. The order stated in its entirety: “The court having reviewed this case and determining that the case appears concluded, the court is of the opinion that this matter should be dismissed. Accordingly, it is hereby ordered that this matter is dismissed.” Three days later, on June 20, 2008, Simmons moved the trial court to set aside its order of dismissal, arguing that “the Court of Civil Appeals, in its opinion, reversed and remanded the above case for the trial court ‘to make findings whether Simmons’s injury entitled him to workers’ compensation benefits outside the schedule.’ ” Simmons’s motion was considered by the trial court at a hearing on August 25, 2008, at which the trial court had the following exchange with the attorneys for Simmons and DuBose Construction:

“[Attorney for DuBose Construction]: One thing you do need to do — I’m not sure how this happened. After the Court of [Civil] Appeals entered its order, it came back here and the case has actually been dismissed.
“[Court]: Who dismissed it?
“[Attorney for Simmons]: You did. And I filed a motion—
“[Attorney for DuBose Construction]: The case has been dismissed. My worry is if it’s a [workers’ compensation] case, there has to be an order. We need— “[Court]: I’m going to set aside that. Do me an order right now setting that aside.
“[Attorney for DuBose Construction]: If you set aside an order—
“[Court]: Set aside the order dismissing the case and reinstate and put [the mediator] in there to mediate it.”

However, it appears that no written order setting aside the order dismissing the case was ever prepared, and, in any event, an order of dismissal was never entered into the record. Pursuant to Rule 59.1, Ala. R. Civ. P., Simmons’s motion to set aside the June 17, 2008, order of dismissal was accordingly denied by operation of law on September 18, 2008. See Ex parte Chamblee, 899 So.2d 244, 248 (Ala.2004) (“We take this opportunity to reaffirm that for purposes of Rule 59.1 a trial judge ‘disposes of a pending postjudgment motion only by properly entering a ruling either denying or granting the motion. Ex parte Johnson Land Co., [561 So.2d 506, 508 (Ala.1990) ]. Rule 59.1 must be read in conjunction and in harmony with Rule 58, [Ala. R. Civ. P.,] which simply does not recognize an oral rendition of a judgment or order or an oral entry of a judgment or order.”).

On November 12, 2009, Simmons filed a motion in the Court of Civil Appeals seeking to compel the trial court to enter a judgment consistent with the Court of Civil Appeals’ ruling in DuBose Construction. In that motion, Simmons asserted that the trial court had held hearings on this case on June 4, 2009, and on October 7, 2009; however, Simmons asserted that at that last hearing the trial court had indicated that the case was closed because it had never entered an order in writing reinstating the case. Simmons nevertheless argued that the trial court could not have summarily dismissed the case without entering the order directed by the Court of Civil Appeals in DuBose Construction. On December 8, 2009, the Court of Civil Appeals denied Simmons’s motion without stating its rationale.

Undaunted, Simmons, on October 18, 2010, moved the trial court to schedule a status conference. DuBose Construction thereafter filed a response and moved the trial court to sanction Simmons. In Simmons’s November 18, 2010, reply to that response, he conceded that his arguments were untimely if Rule 59.1 applied to his case, but he argued that the trial court’s June 17, 2008, order of dismissal was void because it was outside the scope of the remand order issued by the Court of Civil Appeals in DuBose Construction. The materials submitted to this Court contain no evidence indicating that the trial court took any action on these pleadings, and, on October 3, 2011, Simmons petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to finally enter an order setting forth the findings of fact the Court of Civil Appeals had held were absent from the trial court’s initial judgment, and he argued that the trial court’s June 17, 2008, order dismissing the case-was void because it did not comply with the Court of Civil Appeals’ directions on remand. The Court of Civil Appeals ordered DuBose Construction to file an answer to Simmons’s petition, which it subsequently did, along with a motion to dismiss the petition and a request for damages for a “frivolous appeal” under Rule 38, Ala. R.App. P. On November 8, 2011, the Court of Civil Appeals entered an order granting Simmons’s petition, denying DuBose Construction’s request for damages, and directing the trial court “to rule on the remand within 28 days from [the] date of this order.”

On November 22, 2011, DuBose Construction petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its November 8, 2011, judgment. This Court subsequently ordered Simmons and the Court of Civil Appeals to file answers and briefs in response to Du-Bose Construction’s petition and granted DuBose Construction’s motion to stay proceedings in the trial court pending the resolution of its petition.

II.

“This Court reviews de novo the issuance of a writ of mandamus by the Court of Civil Appeals. Rule 21(e), Ala. R.App. P. Review of a writ of mandamus issued by the Court of Civil Appeals is properly sought through a petition for the writ of mandamus to this Court. Rule 21(e), Ala. R.App. P. ‘ “ ‘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 Sears, Roebuck & Co., 895 So.2d 265[, 268] (Ala.2004) (quoting Ex parte Mardis, 628 So.2d 605, 606 (Ala.1993) (quoting in turn Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala.1990))). ‘The petitioner bears the burden of proving each of these elements before the writ will issue.’ Ex parte Glover, 801 So.2d 1, 6 (Ala.2001) (citing Ex parte Consolidated Publ’g Co., 601 So.2d 423 (Ala.1992)).”

Ex parte Vance, 900 So.2d 394, 397 (Ala.2004).

III.

In its petition for a writ of mandamus, DuBose Construction argues that the Court of Civil Appeals exceeded its discretion in granting Simmons’s petition for the writ of mandamus because, its says, Simmons’s petition was both improper and untimely:

“The petition for writ of mandamus was not properly granted by the Court of Civil Appeals for three different reasons: 1) [Simmons’s] remedy was through an appeal and the Court of Civil Appeals improperly allowed [Simmons] to utilize mandamus as a substitute for his untimely appeal; 2) the petition was untimely filed; and 3) [Simmons] did not comply with the mandatory requirements of Rule 21 of the Alabama Rules of Appellate Procedure for the filing of an untimely petition. Because the petition for writ of mandamus did not comply with the Alabama Rules of Appellate Procedure and was untimely, Dubose [sic] Construction filed a motion to dismiss the petition which should have been granted by the Court of Civil Appeals. Dubose [sic] Construction also filed a motion for damages and was entitled to an award of damages pursuant to Rule 38 of the Alabama Rules of Appellate Procedure.”

(DuBose Construction’s petition, p. 13.) The gravamen of DuBose Construction’s argument, therefore, is that the trial court entered an order dismissing Simmons’s case on June 17, 2008, and that, although Simmons moved the trial court to set aside that order on June 20, 2008, and the trial court indicated in a subsequent hearing that it was inclined to grant Simmons’s motion, the trial court never actually set aside the June 17 order of dismissal in writing; thus, that June 17 order became final pursuant to Rule 59.1 on September 18, 2008 — when Simmons’s motion to set aside the June 17 order was denied by operation of law because the trial court had not ruled on it within 90 days of its filing. Consequently, DuBose Construction argues, when Simmons failed to file an appeal by October 30, 2008, the expiration of the 42-day period for filing an appeal provided by Rule 4, Ala. R.App. P., his right to appeal the dismissal of his case was extinguished. Moreover, even if Simmons was entitled to seek mandamus relief instead of relief via an appeal, DuBose Construction argues, the same 42-day period is presumed to apply, and Simmons failed to include in his petition a statement of good cause explaining why that 42-day period should not apply to his case. See Rule 21(a)(3), Ala. R.App. P.

DuBose Construction’s arguments regarding Rule 59.1 and the time limits for filing an appeal are fundamentally correct; however, they are ultimately immaterial because they relate to an argument Simmons has essentially conceded. Throughout this litigation, Simmons has relied on two arguments in his attempts to have the trial court enter the findings of fact identified in DuBose Construction as missing from its original order. First, he has argued that the trial court’s oral statements at the August 25, 2008, hearing on his motion to set aside the June 17, 2008, order dismissing his case were, in fact, effective and resulted in the reinstatement of his case. Under this theory of the case, Simmons’s case has been pending since that time and Simmons sought mandamus relief only because the trial court has since refused to fulfill its duty and enter a ruling in the case. However, as ably argued by DuBose Construction and explained supra, this argument lacks legal merit because “Rule 59.1 must be read in conjunction and in harmony with Rule 58, which simply does not recognize an oral rendition of a judgment or order or an oral entry of a judgment or order.” Ex parte Chamblee, 899 So.2d at 248.

However, Simmons has also argued that the trial court’s June 17, 2008, order dismissing his case was void ab initio because, he says, it did not comply with the Court of Civil Appeals’ remand instructions in DuBose Construction. The Court of Civil Appeals, Simmons argues, ordered the trial court on remand to make findings detailing whether Simmons’s injury entitled him to workers’ compensation benefits outside the schedule set forth in § 25-5-57(a) and, accordingly, the trial court lacked authority to take any other action, including dismissing the case. Under this theory of the case, the June 17, 2008, order of dismissal had no effect, and Simmons’s case has remained pending in the trial court since the Court of Civil Appeals remanded it to that court in DuBose Construction; Rule 59.1 and time limits for appeals were therefore never implicated. Simmons was presumably cognizant of the fact that this was the stronger of his arguments because he appears to have abandoned his first argument that the trial court orally set aside its order of dismissal when, in a November 18, 2010, filing in the trial court, he conceded that “if this issue was subject to [Rule 59.1], then it would be untimely.” Indeed, in the petition for the writ of mandamus that Simmons successfully pursued in the Court of Civil Appeals, he argued exclusively that the trial court’s June 17, 2008, order of dismissal was void as a result of the court’s failure to comply with the Court of Civil Appeals’ instructions on remand.

Moreover, although the Court of Civil Appeals did not explain its rationale for granting Simmons’s petition for the writ of mandamus in the November 8, 2011, order, it has filed an answer in this Court responding to DuBose Construction’s petition for the writ of mandamus. In that answer, the Court of Civil Appeals confirms that it issued the writ based on Simmons’s argument that the trial court lacked authority to dismiss his case, stating:

“7. Pursuant to established Alabama caselaw, a lower court must strictly comply with the remand order of an appellate court. See Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1988) (quoting 5 Am.Jur.2d Appeal and Error § 991 (1962)). In Lynch v. State, 587 So.2d 306, 307 (Ala.1991), the Supreme Court of Alabama held that a lower court acts beyond its authority if it takes any action on remand that differs from the explicit instructions of the higher appellate court. In Anderson v. State, 796 So.2d 1151 (Ala.Crim.App.2000), the Alabama Court of Criminal Appeals interpreted Lynch as holding that ‘any act by a trial court beyond the scope of an appellate court’s remand order is void for lack of jurisdiction.’ 796 So.2d at 1156 (citing Ellis v. State, 705 So.2d 843, 847 (Ala.Crim.App.1996) (stating that on remand, ‘the trial court had no jurisdiction to modify the original or base sentence imposed or to take any action beyond the express mandate of this court’)); see also Hyde v. State, 894 So.2d 808 (Ala.Crim.App.2004), and Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003) (accord).
“8. In Peterson v. State, 842 So.2d 734, 739-40 (Ala.Crim.App.2001), the Alabama Court of Criminal Appeals applied Lynch and Anderson to hold that a circuit court lacked jurisdiction to set aside a defendant’s convictions and to reinstate an indictment against the defendant because those actions exceeded the scope of the Court of Criminal Appeals’ remand order, which merely required the circuit court to enter specific findings of fact on a separate issue. Because the circuit court acted without jurisdiction, the Court of Criminal Appeals held that the judgment was ‘void.’ 842 So.2d at 740.
“9. In this case, this court, like the Court of Criminal Appeals in Peterson, remanded the case for [the trial court] to enter specific findings of fact regarding the inapplicability of the schedule. Like in Peterson, [the trial court] did not comply with our mandate, but, instead, purported to enter a judgment exceeding the scope of our remand order, namely, dismissing the case. As in Peterson, [the trial court’s] judgment of dismissal is ‘void.’ Because it is void, the judgment did not effectively dismiss the case, leaving the parties in the same position as they were prior thereto. Consequently, [the trial judge] remained subject to this court’s order to enter appropriate findings of fact to explain why he deviated from the schedule in awarding Simmons compensation.
“10. Because [the trial court] did not act in strict compliance with this court’s remand order, Simmons was entitled to a writ of mandamus compelling [the trial court’s] compliance. See, e.g., Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (‘A petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the trial court, on remand, has complied with the appellate court’s mandate.’).”

After the Court of Civil Appeals filed its answer, DuBose Construction filed a reply in which it for the first time responded to the argument that the June 17, 2008, order of dismissal was void and hence without effect. In that reply, DuBose Construction argued that Simmons’s petition seeking mandamus relief from the Court of Civil Appeals should have been denied because (1) Simmons could have, but never did, move the trial court pursuant to Rule 60(b)(4), Ala. R. Civ. P., to set aside its June 17, 2008, order of dismissal as void, and (2) the order of dismissal was not contrary to the Court of Civil Appeals’ instructions in DuBose Constmction. However, for the reasons that follow, these arguments still do not establish that Du-Bose Construction has a clear legal right to the relief it seeks.

In support of its argument that the Court of Civil Appeals should have denied Simmons’s petition because he did not first file a motion invoking Rule 60(b)(4), Du-Bose Construction quotes Shamburger v. Lambert, 24 So.3d 1139, 1142-43 (Ala.Civ.App.2009):

“1 “A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.” ’ Ex parte Moore, 880 So.2d 1131, 1133 (Ala.2003) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).
“In this case, [the petitioner] had at least two other adequate remedies. First, [the petitioner] could have raised lack of standing in a timely appeal to the circuit court. See Ex parte R.S.C., 853 So.2d 228 (Ala.Civ.App.2002) (holding that petitioner had adequate remedy by appeal to attack plaintiffs alleged lack of standing and, therefore, petition for a writ of mandamus was inappropriate means by which to seek relief). Second, [the petitioner] could have filed a Rule 60(b)(4), Ala. R. Civ. P., motion in the district court. In her postjudgment motion filed in the district court on July 21, 2008, [the petitioner] did not assert lack of standing as a jurisdictional defect. Nevertheless, Rule 60 allows a party to move to set aside a judgment that is void for lack of subject-matter jurisdiction at any time. See Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003). The district court retained jurisdiction over the case to rule on such a motion because, as explained above, the circuit court had not acquired jurisdiction over the appeal because of the untimely filing of [the petitioner’s] notice of appeal. Because [the petitioner] had adequate remedies available to her, the circuit court erred in considering the petition for a writ of mandamus.”

However, we find Shamburger to be distinguishable. In that case, the Court of Civil Appeals specifically stated that the petitioner did not assert lack of standing as a jurisdictional defect in the post-judgment motion she filed in the district court, and, for all that appears, she never did bring that specific argument to the district court’s attention. Id. However, in the instant case, Simmons clearly articulated his argument that the trial court’s June 17, 2008, order of dismissal was void because it failed to comply with the mandate of the Court of Civil Appeals in DuBose Construction and that it could accordingly be challenged at any time. For example in a November 18, 2010, filing in the trial court, Simmons stated:

“In Looney v. State, 60 So.3d 293, 296 (Ala.Civ.App.2010), the Alabama Court of Civil Appeals held that ‘ “[a]s a nullity, a void judgment has no effect and is subject to attack at any time.... [A] motion for relief from a void judgment is not governed by the reasonable-time requirement of Rule 60(b).” [Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003) ].’ Also on this issue, [Judge Moore of the Alabama Court of Civil Appeals], concurring specially in Franklin v. Catledge, 59 So.3d 738, 742 (Ala.Civ.App.2010), wrote that in regard to a void judgment, any party aggrieved by the judgment may file a Rule 60(b)(4), Ala. R. Civ. P., motion in the circuit court to have the judgment set aside.”

Although Simmons did not specifically entitle that filing as a “motion to set aside a judgment pursuant to Rule 60(b)(4),” it is this Court’s longstanding policy that the “ ‘character of a pleading is determined and interpreted from its essential substance, and not from its descriptive name or title.’ ” Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969)). Simmons argued to the trial court that its June 17, 2008, order of dismissal was void, and, not obtaining relief from the trial court, he was entitled to petition the Court of Civil Appeals for mandamus relief. See Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (“A petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the trial court, on remand, has complied with the appellate court’s mandate.”).

DuBose Construction next argues that the June 17, 2008, order of dismissal entered by the trial court is not void because, it argues, the order is not contrary to the remand instructions of the Court of Civil Appeals in DuBose Construction. Rather, DuBose Construction argues, the Court of Civil Appeals merely held that the trial court could not award Simmons damages based on a loss of earning capacity without first making a finding that the effects of Simmons’s knee injury extended to other parts of his body and then remanded the cause “for the trial court to enter a judgment consistent with this opinion.” 989 So.2d at 1143. A judgment containing no findings of fact and dismissing Simmons’s case without awarding him damages is, DuBose Construction argues, entirely consistent with that holding — the trial court was instructed only that it could not award Simmons benefits without making the supporting findings. We disagree.

In DuBose Construction, the Court of Civil Appeals noted that the trial court had failed to make findings concerning whether Simmons’s injury entitled him to compensation outside the schedule in § 25-5-57(a), Ala.Code 1975, and explained that it was the duty of the trial court to make a finding of every fact necessary to sustain its judgment. 989 So.2d at 1143. Having identified that it was the absence of such findings that required the reversal of the trial court’s judgment, it is evident that the Court of Civil Appeals intended for the trial court, on remand, to make such findings regardless of whether those findings supported the trial court’s initial judgment. See Harbin v. United States Steel Corp., 356 So.2d 179, 182 (Ala.Civ.App.1978) (stating that the trial court in a workers’ compensation case was required to make findings of’ fact regarding the existence or absence of evidence relevant to disputed issue). Accordingly, only a judgment containing findings of fact would comply with the Court of Civil Appeals’ instructions that “the trial court enter a judgment consistent with this opinion,” and any judgment failing to do so was, in fact, void. Id. This conclusion is buttressed by the fact that the Court of Civil Appeals has confirmed its intent in its answer filed with this Court and by the fact that other trial courts have interpreted similar remand language used by the Court of Civil Appeals in cases involving § 25-5-57(a) as requiring an order supplementing the trial court’s findings of fact to address the issue whether an on-the-job injury affected more than just the body part that suffered the direct injury. See, e.g., Ex parte Addison Fabricators, Inc., 989 So.2d at 500. DuBose Construction’s argument that the trial court’s order of dismissal was consistent with the Court of Civil Appeals’ remand instructions is without merit.

IV.

DuBose Construction petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its November 8, 2011, order granting Simmons’s petition for the writ of mandamus and directing the trial court to issue a ruling on the remand ordered in DuBose Construction within 28 days. However, DuBose Construction has failed to establish that it has a clear legal right to that relief because the trial court’s June 17, 2008, order dismissing Simmons’s case was void as being outside the scope of the Court of Civil Appeals’ remand order, and Simmons was accordingly entitled to a writ directing the trial court to enter a proper judgment in the case.

PETITION DENIED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . At the time pertinent to this action, Rule 59.1 provided that "[a] failure by the trial court to dispose of any pending post-judgment motion within the [90-day period] permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.” Rule 59.1 was amended effective October 24, 2008, to change the word ‘‘dispose” to "render an order disposing.”

      . Simmons did, however, as he has in the briefs filed with this Court, state as fact that the trial court reinstated his case at the August 25, 2008, hearing, although he does not make any further arguments based on that alleged fact.

      . Rule 60(b) provides, in pertinent part:
      "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.... The motion shall be made within a reasonable time....”
      The Committee Comments on the 1973 Adoption of Rule 60 further make clear that there is no set time in which a party must challenge a void judgment because "Alabama law has always been that a void judgment could be vacated at any time.” Committee Comments on 1973 Adoption of Rule 60, Ala. R. Civ. P. (citing Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907)).

      . The entire record is not before this Court on mandamus review; however, the materials before us indicate that Simmons has asserted that the injury to his right knee also affected his back, his left leg, and his right elbow. The trial court has access to the entire record and can properly determine whether those assertions are grounded in the evidence.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS v. Richard L. PARKER. Marilyn Phillips Hunter v. Richard L. Parker.
    1100227 and 1100282.
    Supreme Court of Alabama.
    March 16, 2012.

      Carol Ann Smith and David R. Pace of Smith & Pace, P.C., Birmingham; and Sharon H. Hester of Hester & James, LLC, Russellville, for appellant American Family Life Assurance Company of Columbus.
    Steve A. Baccus and R. Keith Worsham of Almon McAlister Baccus & Worsham, LLC, Tuscumbia, for appellant Marilyn Phillips Hunter.
    Stephen D. Heninger of Heninger, Garrison & Davis, LLC, Birmingham for ap-pellee.
   PARKER, Justice.

All causes of action involved in these consolidated appeals arise from the same factual scenario. American Family Life Assurance Company of Columbus (“Aflac”) and Marilyn Phillips Hunter appeal from a judgment of the Franklin Circuit Court denying their motions to compel arbitration. We reverse and remand.

Facts and Procedural History

According to the affidavit testimony of Tyler G. Bennett, Aflac’s vice president of New Business Operations and Account Relations, whose affidavit testimony indicates that he did have access to Aflac’s business records maintained in the ordinary course of Aflac’s business, on July 12, 1990, Richard L. Parker applied to Aflac for a cancer-indemnity insurance policy. Aflac issued Parker a cancer-indemnity policy, policy number A2043738, on July 16, 1990 (“the 1990 policy”). The term of the 1990 policy was month-to-month; the monthly premium was $28.50. Bennett’s affidavit indicates that Aflac received payment for the 1990 policy from August 25, 1990, to August 17,1996. The 1990 policy provided as follows for a “Progressive Payout Benefit”:

“We will pay to the Named Insured as provided below, an indemnity benefit equal to $30 (Thirty Dollars) per month for each whole month this policy is in force subject to the dates this benefit ceases to build. This benefit will cease to build for the Named Insured on: the date of the initial diagnosis of internal cancer; the policy anniversary date next following the Named Insured’s 65th birthday; or, the 20th policy anniversary, whichever occurs first. However, regardless of the age of the Named Insured on the ‘Effective Date’ of this policy, this benefit shall accrue for a period of at least 5 years unless internal cancer is diagnosed prior to the 5th year of coverage.
“This benefit will be paid on: the date the Named Insured is initially diagnosed as having internal cancer; the 20th policy anniversary date; or, the date the Named Insured attains age 79, whichever occurs first. This benefit is payable only once in the lifetime of the Named Insured.”

On May 9, 1996, Parker submitted to Aflac an “Application for Cancer Insurance.” Bennett’s affidavit indicates that Parker’s “application for a new policy provided that the ... 1990 ... policy would terminate on the date the new 1996 cancer policy became effective. [Parker’s] 1996 policy became effective on August 16,1996, and the 1990 policy terminated effective August 16, 1996.” Parker’s “Application for Cancer Insurance” indicated that it was an application for the conversion of the 1990 policy. The application for the new cancer policy stated, in pertinent part:

“5. If this is an application for an upgrade of coverage, the following conditions apply: (a) If cancer is diagnosed between the date this application is signed and the Effective Date of the policy shown in the Policy Schedule, the policy for which this application is made shall be void, and coverage shall continue under the terms of the previous policy, which may remain in force. Any benefits that may be due will be paid under the previous policy, (b) The waiting period and the Time Limit on Certain Defenses provision shall run from the Effective Date of the original policy, and the original policy will be terminated as of the Effective Date of the new policy.”

A cancer insurance policy was issued on August 16, 1996 (“the 1996 policy”), and had the same policy number as the 1990 policy — A2043738. The term of the 1996 policy was month-to-month, and the monthly premium was $35.90. Bennett’s affidavit indicates that Aflac received payment for the 1996 policy from October 18, 1996, to August 8, 2009.

On August 5, 2009, Parker submitted to Aflac an “Application for Cancer Indemnity Insurance.” Parker’s application indicated that it was an application for a new policy; however, Aflac issued Parker a “Cancer Indemnity Insurance” policy on August 16, 2009 (“the 2009 policy”), with the same policy number as the 1990 policy and the 1996 policy — A2043738. Bennett’s affidavit indicates that submitted with Parker’s application for the 2009 policy was an “Arbitration Agreement” (“the arbitration agreement”), which, according to Bennett, was a “condition Aflac required before beginning the underwriting process on [Parker’s] August 5, 2009 Application.” In fact, the 2009 policy, a copy of which was attached to Bennett’s affidavit and which Bennett swore was a “true and correct eop[y],” includes both Parker’s application for the 2009 policy and the arbitration agreement. The arbitration agreement states:

“I, RICHARD PARKER ..., have applied for a policy of insurance from AFLAC[] and if AFLAC will issue the policy to me, I want to make this agreement with AFLAC.
“I agree that binding arbitration will be used to resolve the following claims, disputes or lawsuits:
“1. Any and all claims, disputes or lawsuits that I have concerning my AFLAC policy; and/or
“2. Any claims, disputes or lawsuits that I have concerning any relationships that my AFLAC insurance policy creates and/or
“3. Any claims, disputes or lawsuits concerning the validity of this arbitration agreement; and/or
“4. Any and all claims, disputes or lawsuits that I have that come up from the proposed sale of the policy by any agent or employee of AFLAC, including any allegation of fraud or improper act.
“I understand that binding arbitration is the hearing and determining of a dispute I have with AFLAC by three persons, one chosen by me, one chosen by AFLAC and a third neutral person appointed by my representative and AF-LAC’s representative by agreement. I also understand that if my representative and AFLAC’s representative cannot agree on a third neutral party then a list of arbitrators will be provided by the American Arbitration Association to my representative and AFLAC’s representative who will then select the third neutral arbitrator from that list. I understand that I will have the choice of having AFLAC pay the fees of the third neutral arbitrator or if I prefer, AFLAC and I will equally divide the expenses and fees of the third neutral arbitrator. Both I and AFLAC agree and understand that we are choosing ARBITRATION INSTEAD OF LITIGATION to resolve any of the above described disputes. Both I and AFLAC understand that we have a right or opportunity to litigate disputes through the court but that we prefer to resolve our disputes through arbitration.
“Both I and AFLAC voluntarily and with full understanding WAIVE ANY RIGHT WE HAVE TO A JURY TRIAL. This waiver applies either to arbitration under this agreement or to a court action filed by me. Both I and AFLAC agree and understand that all disputes arising under law, whether made by the courts or the legislature or any other law which includes but is not limited to all contract, tort and third party disputes, will be decided by the use of binding arbitration. The three arbitrators selected will meet, set a date for a hearing, notify AFLAC and me of that date, have a hearing and make the final decision. Both I and AFLAC agree and understand that the arbitrators shall have all power provided by the law subject to this agreement and the insurance policy. AFLAC and I agree and understand that my insurance policy with AFLAC and all related matters are business transactions involving interstate commerce and shall be governed by the Federal Arbitration act at 9 U.S.C. Section 1.
“AFLAC and I understand that this arbitration agreement constitutes a portion of my application for insurance. AFLAC and I further understand that there is no insurance contract unless and until my application is accepted by AFLAC. Upon acceptance of my application by AFLAC, as evidenced by the issuance of an insurance policy, this arbitration agreement shall be incorporated by this reference into any insurance policy issued. The overall Insurance Contract shall consist of this Arbitration Agreement, the application for insurance and the insurance policy.
“By my signature below, I agree that I have read this Arbitration Agreement and understand it.”

(Capitalization and some emphasis in original; final emphasis added.) The arbitration agreement was signed by Parker. Bennett’s affidavit states that Parker’s “August 5, 2009, Application for a Cancer Insurance policy acknowledged that ‘the original policy will be terminated as of the Effective Date of the new policy’ ” and that Parker was “ ‘giving up his current policy and its benefits for the benefits provided in the new policy.’ ” Bennett’s affidavit also states that “[o]n August 16, 2009, when Aflac issued the new Cancer Insur-anee policy, [Parker’s] earlier Cancer Insurance policy was terminated.” The term of the 2009 policy is month-to-month, and the monthly premium is $61.75. Bennett’s affidavit indicates that Aflac received payment for the 2009 policy from September 14, 2009, to “the present date.”

On August 25, 2010, Parker sued Aflac asserting a claim of bad-faith failure to pay policy benefits allegedly owed to Parker under the 1990 policy. In his complaint, Parker alleged the following pertinent facts:

“3. The 20th anniversary of [the 1990] policy occurred on July 16, 2010. The amount of Progressive Payout Benefit should have been $7,200.00 on that date. [Parker] wrote [Aflac] on November 9, 2009, to confirm that he would receive that benefit because his agent had told him he would not receive such benefit because he had purchased a supplemental policy from A[flac] in May 1996.... No response was made to this letter and no payment of this benefit has been forthcoming despite [Parker’s] entitlement to the benefit.”

Parker then alleged that Aflac had breached the 1990 policy, that Aflac had “acted in bad faith through [its] refusal to pay,” and that Aflac had “engaged in fraud, misrepresentation, deceit and fraudulent suppression.” Parker attached to his complaint the 1990 policy and a letter from Parker to Aflac dated November 9, 2009, the contents of which were summarized above. On September 14, 2010, Parker amended the complaint to add Hunter as a defendant; Parker’s amended complaint alleged that Hunter was “that person or agent who sold a supplemental policy to [Parker].” Against Hunter, Parker asserted claims of “fraud, misrepresentation, deceit and fraudulent suppression.”

On October 1, 2010, based on the arbitration agreement, Aflac filed a motion to compel arbitration of Parker’s claims against Aflac. Aflac supported its motion to compel arbitration with the following evidence: 1) the affidavit of Virgil R. Miller, Aflac’s vice president of Client Services; 2) Bennett’s affidavit; 3) the application for the 1990 policy and the 1990 policy itself; 4) the application for the 1996 policy and the 1996 policy itself; 5) the application for the 2009 policy and the 2009 policy itself; and 6) the arbitration agreement. In his affidavit testimony, Miller testified that he is employed by Aflac as its vice president of Client Services and that the arbitration agreement submitted with the motion to compel arbitration was “a true and correct copy of the Arbitration Agreement entered into between Aflac and [Parker]. It is a business record maintained in the ordinary course of Aflac’s business-” On October 20, 2010, Hunter also filed a motion to compél arbitration. In her motion to compel arbitration, Hunter stated that she “adopt[ed] and join[ed] in the motion and grounds set for[th] by AFLAC in its Motion to Enforce Arbitration as if fully set forth herein.”

On October 22, 2010, Parker filed a motion opposing Aflac’s motion to compel arbitration. Parker argued that Aflac’s motion to compel arbitration should be denied because Parker’s claims are based on the 1990 policy, which undisputedly did not include an arbitration provision. Parker did not submit any evidence in support of his motion.

On November 2, 2010, the circuit court conducted a hearing on Aflac’s and Hunter’s motions to compel arbitration, and on November 8, 2010, it denied the motions. Aflac and Hunter separately appealed. We have consolidated the appeals for the purpose of writing one opinion.

Standard of Review

“ ‘This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Corp. v. Silvernell, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).’
“United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala.2003). 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 agree-. ment 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, 753 (Ala.2002).”

Cartwright v. Maitland, 30 So.3d 405, 408-09 (Ala.2009).

Discussion

In Green Tree Financial Corp. of Alabama v. Vintson, 753 So.2d 497, 501-02 (Ala.1999), this Court held:

“Section 2 of the Federal Arbitration Act (‘FAA’) provides that ‘[a] 'written provision in any ... contract evidencing a transaction involving [interstate] commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable.’ 9 U.S.C. § 2. Moreover, the Supreme Court of the United States has stated that the FAA establishes a strong federal policy favoring arbitration. 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) (the FAA ‘establishes that, as a matter of federal law, any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration’). Accordingly, trial courts are required to stay or dismiss proceedings and to compel arbitration when the parties have entered into a valid contract containing an arbitration agreement, and a trial court’s denial of a motion to compel arbitration is subject to appeal. See, e.g., Patrick Home Center, Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). This Court will apply the de novo standard of review to a trial court’s order denying a motion to compel arbitration. Id.”

First, Aflac and Hunter argue that they satisfied their initial burdens in proving that a contract calling for arbitration existed. In so arguing, Aflac and Hunter rely upon the following evidence submitted to the circuit court: the affidavits of Miller and Bennett, the pertinent parts of which are detailed above; the arbitration agreement; Parker’s application for the 1990 policy and the 1990 policy itself; Parker’s application for the 1996 policy and the 1996 policy itself; and Parker’s application for the 2009 policy and the 2009 policy itself. Parker argues that Aflac and Hunter failed to establish that the arbitration agreement existed. Specifically, Parker argues that “[t]here is no evidence in the record that shows that the purported arbitration agreement was attached to the 2009 policy.” Parker’s brief, at p. 18. We agree with Aflac’s and Hunter’s argument that the evidence they presented in support of their motions to compel arbitration was sufficient evidence indicating that a contract calling for arbitration existed.

As the undisputed evidence set forth above shows, the 1990 policy was terminated in favor of the 1996 policy, which, in turn, was terminated in favor of the 2009 policy, which incorporated the arbitration agreement. Therefore, by producing the 2009 policy, which incorporated the arbitration agreement, Aflac and Hunter met their burden of proving that a contract calling for arbitration existed.

The parties have stipulated that the contract containing the arbitration agreement evidences a transaction affecting interstate commerce. Thus, the burden shifted to Parker “‘“to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Cartwright, supra (quoting other cases). Parker’s argument on appeal that “[t]here is no evidence in this record that shows that the purported arbitration agreement was attached to the 2009 policy” is not consistent with the facts of this case. As set forth above, Bennett’s affidavit testimony indicates that attached to the affidavit was a true and correct copy of the 2009 policy, which incorporated the arbitration agreement. Therefore, Parker has incorrectly interpreted the evidence in the record.

In support of his argument that the arbitration agreement is not a valid contract to arbitrate, Parker also argues that “[i]t is important to note that the purported arbitration agreement was not signed on behalf of AFLAC.” Parker’s brief, at p. 19. However, Parker has failed to support his argument that the arbitration agreement fails because Aflac did not sign it with any legal authority. This Court held in University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242, 1247-48 (Ala.2004), as follows:

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ The effect of a failure to comply with Rule 28(a)(10) is well established:
“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a) ([10]); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).”
‘City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).’
“Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). ‘[W]e cannot create legal arguments for a party based on undeli-neated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992).”

Therefore, we need not consider this argument.

Moreover, the mere fact that neither Aflac nor Hunter executed the arbitration agreement is not dispositive of the issue whether a valid contract calling for arbitration existed because acceptance of a contract can be demonstrated in ways other than execution. In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So.2d 8 (Ala.1999), a client of Merrill Lynch’s executed a cash-management-account (“CMA”) agreement offered to him by Merrill Lynch; no Merrill Lynch representative signed the CMA agreement. Included in the CMA agreement was a “pre-dispute arbitration agreement.” A dispute arose concerning the CMA agreement, and the client sued Merrill Lynch. Merrill Lynch moved to compel arbitration based upon the arbitration agreement in the CMA agreement; the trial court denied Merrill Lynch’s motion, and Merrill Lynch appealed.

On appeal, Merrill Lynch argued “that the trial court erred in denying its motion to compel arbitration solely on the basis that no representative of Merrill Lynch had signed the CMA agreement containing the arbitration agreement.” In reversing the trial court’s judgment denying Merrill Lynch’s motion to compel arbitration, this Court stated:

“In Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102 (Ala.1995), we wrote:
“ ‘ “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbi-trable 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 like defense to arbitrability.” ’
684 So.2d at 107 (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). However, we have held that a party cannot be required to arbitrate a dispute that he or she did not agree to arbitrate. See Capital Inv. Group, Inc. v. Wood-son, 694 So.2d 1268 (Ala.1997).
“This Court has held that the object of a signature on a contract is to show mutuality and assent, and that mutuality and assent can be manifested in ways other than a signature. See Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986); Ex parte Pointer, 714 So.2d 971 (Ala.1997). Unless required by a statute to be in writing, a contract does not have to be signed to be enforceable, so long as it is accepted and acted upon. Tarver, 492 So.2d at 304.
“Although no representative of Merrill Lynch signed the CMA agreement, the absence of a signature by a Merrill Lynch employee does not invalidate the agreement. ‘The [Federal Arbitration Act] only requires that there be a “written provision” in a “contract”; it does not specify that a party’s assent to the terms of a contract containing an arbitration provision can be evidenced only by that party’s signature.’ Ex parte Rush, 730 So.2d 1175 (Ala.1999). Conduct of one party to a contract from which the other may reasonably draw an inference of assent to an agreement is effective as acceptance. Anderson Brothers Chrysler Plymouth Dodge, Inc. v. Hadley, 720 So.2d 895 (Ala.1998) (the failure of a party to sign a contract on a signature line next to an arbitration provision did not render the provision unenforceable). In addition, it is a general principle of contract law that when a contract is signed by a party or parties ‘to be charged,’ a contract can be enforced where the other party fails to sign the contract; See Anselmo Meat Co. v. Riley, 533 So.2d 552 (Ala.1988).
“The record indicates that Merrill Lynch provided [the client] with the CMA agreement and that [the client] executed it. In addition, Merrill Lynch acted in recognition of the formal agreement. Therefore, we conclude that Merrill Lynch manifested assent to the terms of the agreement, including the arbitration agreement contained therein, notwithstanding the absence of a signature by its representative. Accordingly, we conclude that the arbitration provision contained in the CMA agreement is enforceable.”

Merrill Lynch, 751 So.2d at 11. The record indicates that Aflac received and accepted Parker’s monthly premium payments for the 2009 policy; such action is evidence that Aflac consented to the terms of the 2009 policy, which incorporated the arbitration agreement.

Further, the record indicates that Paul S. Amos II, president of Aflac, and Joey M. Loudermilk, secretary of Aflac, both signed the 2009 policy, which incorporated the arbitration agreement. Therefore, for this reason as well, it is inconsequential that the arbitration agreement itself was not signed by any Aflac representative because the 2009 policy, which incorporated the arbitration agreement, was signed by Amos and Loudermilk.

Based on the foregoing, we conclude that Aflac and Hunter satisfied their burden of proving that an arbitration agreement existed between the parties. As a result, the burden then shifted to Parker to present evidence refuting the evidence provided by Aflac and Hunter; Parker did not present any evidence refuting Aflac’s and Hunter’s evidence that the arbitration agreement existed.

Next, Aflac and Hunter argue that the arbitration agreement “clearly expresses the parties’ intent that all disputes between them will be resolved by arbitration.” Aflac’s brief, at p. 24. In support of their argument, Aflac and Hunter rely upon the following portion of the arbitration agreement:

“Both I and AFLAC agree and understand that all disputes arising under law, whether made by the courts or the legislature or any other law which includes but is not limited to all contract, tort and third party disputes, will be decided by the use of binding arbitration.”

Parker does not offer any argument in his brief that the arbitration agreement was not broad enough to include his claims against Aflac and Hunter. In Green Tree, this Court held:

“Whether an arbitration provision encompasses a party’s claims ‘is a matter of contract interpretation, which interpretation is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.’ Allied-Brace Terminix Cos. v. Dobson, 684 So.2d 102, 110 (Ala.1995).”

753 So.2d at 505. We agree with Aflac’s and Hunter’s arguments that the above language of the arbitration agreement is not ambiguous and that it is broad enough to include arbitration of Parker’s claims against them.

Conclusion

Aflac and Hunter satisfied their burden of proving that an arbitration agreement existed that applied to Parker’s claims against them. Because there was no issue as to whether the contract containing the arbitration agreement affected interstate commerce, the burden then shifted to Parker to offer evidence refuting the evidence offered by Aflac and Hunter; Parker offered no evidence to refute that evidence and presents no persuasive argument that Aflac and Hunter failed to meet their burden. Therefore, we reverse the circuit court’s judgment denying Aflac’s and Hunter’s motions to compel arbitration, and we remand the case to the circuit court and direct it to grant those motions.

1100227 — REVERSED AND REMANDED WITH INSTRUCTIONS.

1100282 — REVERSED AND REMANDED WITH INSTRUCTIONS.

MALONE, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . Although "Aflac” is capitalized in the arbitration agreement, it does not appear from other portions of the record that the entity uses all capital letters when referring to itself.


author: MAIN, Justice. PARKER, Justice MURDOCK, Justice

text:
    EX PARTE ANONYMOUS, a minor. (In the matter of Anonymous, a minor).
    1110712.
    Supreme Court of Alabama.
    March 23, 2012.
   (Court of Civil Appeals, 2110513).

MAIN, Justice.

PETITION DENIED. NO OPINION.

MALONE, C.J., and STUART, BOLIN, SHAW, and WISE, JJ., concur.

PARKER and MURDOCK, JJ., concur specially.

WOODALL, J., dissents.

PARKER, Justice

(concurring specially).

In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), the United States Supreme Court described the necessity of placing limits on the decision-making authority of minors, stating:

“[T]he [United States Supreme] Court has held that the States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”

443 U.S. at 635. Acknowledging that potential “lack of experience, perspective, and judgment” on the part of minors, the Alabama legislature enacted the Parental Consent Act, § 26-21-1 et seq., Ala.Code 1975; the first section of the Parental Consent Act, § 26-21-1, Ala.Code 1975, states in full:

“(a) It is the intent of the Legislature in enacting this parental consent provision to further the important and compelling state interests of: (1) protecting minors against their own immaturity, (2) fostering the family structure and preserving it as a viable social unit, and (3) protecting the rights of parents to rear children who are members of their household.
“(b) The Legislature finds as fact that: (1) immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, (2) the medical, emotional, and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature, (3) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related, (4) parents ordinarily possess information essential to a physician’s exercise of his or her best medical judgment concerning the child, and (5) parents who are aware that their minor daughter has had an abortion may better insure that she receives adequate medical attention after her abortion. The legislature further finds that parental consultation is usually desirable and in the best interests of the minor.”

Thus, the Parental Consent Act expresses the Alabama legislature’s strong interest in protecting and preserving parental rights.

The requirement of parental consent can be waived by court order in the case of “[a] minor who elects not to seek or does not or cannot ... obtain consent from either of her parents or legal guardian.” § 26-21-3(e), Ala.Code 1975. A waiver of parental consent is obtained through the judicial-bypass procedure set forth in § 26-21^4, Ala.Code 1975, which permits a pregnant minor to seek judicial authorization for an abortion, as did the minor in this case. That Code section states, in relevant part: “The required consent shall be waived if the court finds either: (1) That the minor is mature and well-informed enough to make the abortion decision on her own; or (2) That performance of the abortion would be in the best interest of the minor.” § 26-21-4(f), Ala.Code 1975.

In this case, the trial court, in a precise and thorough order setting forth the facts of the case and analyzing those facts in light of the applicable statutes and precedents, specifically determined that the petitioner, a 17-year-old unmarried, un-emancipated minor, lacked the maturity and knowledge necessary to determine for herself whether an abortion of her pregnancy was in her own best interest. The trial court also specifically determined that the evidence before it did not indicate that an abortion would be in the best interest of the petitioning minor. The trial court therefore declined to authorize an abortion.

By properly declining to waive parental consent and authorize the abortion requested by the minor in this case, the trial court left the authority to determine whether an abortion is in the minor’s best interest solely in the hands of the minor’s parents. Its doing so is in accord with our statutes and with precedents from the United States Supreme Court, which stated in Bellotti that “[tjhere is ... an important state interest in encouraging a family rather than a judicial resolution of a minor’s abortion decision.” 443 U.S. at 648.

In Bellotti the United States Supreme Court explained that “[tjhe State commonly protects its youth from adverse governmental action and from their own immaturity by requiring parental consent to or involvement in important decisions by minors.” 443 U.S. at 637. This parental involvement is not a new phenomenon: “Consent and involvement by parents in important decisions by minors long have been recognized as protective of their'immaturity.” 443 U.S. at 649. Nor is this parental authority mere convenience:

“[A]n additional and more important justification for state deference to parental control over children is that ‘ [tjhe child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). ‘The duty to prepare the child for “additional obligations” ... must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship.’ Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). This affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.
“We have believed in this country that this process, in large part, is beyond the competence of impersonal political institutions .... Thus, ‘[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, supra, 321 U.S. [158], at 166 [ (1944) ] (emphasis added).
“Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation’s history and tradition, is the belief that the parental role implies a substantial measure of authority over one’s children. Indeed, ‘constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.’ Ginsberg v. New York, supra, 390 U.S. [629], at 639 [ (1968) ].
“Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter.”

443 U.S. at 637-38. This Court has also upheld the fundamental right of parents to direct the upbringing of their children. See Ex parte E.R.G., 73 So.3d 634, 642, 643 (Ala.2011) (“The right of parents to direct the upbringing of their children has long been recognized as fundamental by the United States Supreme Court.... This Court has also recognized the fundamental nature of parental rights.”). By denying the petition for review of the judgment of the Court of Civil Appeals in this case and thereby leaving the final decision-making authority to the minor’s parents, this Court again affirms its commitment to the fundamental right of parents to direct the care and upbringing of their children.

After reviewing the evidence and arguments before us, I concur in denying the petition seeking review of the judgment of the Court of Civil Appeals, which in turn affirmed the trial court’s decision in this case.

MURDOCK, Justice

(concurring specially).

I concur to deny the petition. I write separately to note that the petition before us does not address the specific findings of the trial court, nor does it address the specific authorities cited by the Court of Civil Appeals in its no-opinion affirmance.


author: THOMAS, Judge.

text:
    Patrick Alfred CARNEY v. Vivia S. CARNEY.
    2100922.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.
    Rehearing Denied Feb. 3, 2012.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1110589.

      Landis Sexton, Montgomery, for appellant.
    James E. Turnbach of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.
   THOMAS, Judge.

Patrick Alfred Carney (“the former husband”) appeals from the Etowah Circuit Court’s order denying his Rule 60(b), Ala. R. Civ. P., motion to set aside its judgment divorcing the former husband and Vivía S. Carney (“the former wife”) and dividing the parties’ marital assets. We affirm.

On November 9, 2010, the trial court entered a judgment divorcing the parties and dividing their marital assets. On December 30, 2010, Leon Garmon, the former husband’s trial attorney, filed a “Nunc Pro Tunc and Motion to Clarify the Final Judgment of Divorce.” The trial court denied the former husband’s untimely postjudgment motion on January 19, 2011.

On March 10, 2011, after obtaining new counsel, the former husband filed a Rule 60(b)(6), Ala. R. Civ. P., motion seeking relief from the divorce judgment. Specifically, the former husband’s Rule 60(b) motion stated that Garmon and his office staff had advised the former husband that Gar-mon had filed a timely postjudgment motion regarding the divorce judgment in the trial court and that Garmon was waiting for a response from the trial court, although in actuality Garmon had failed to file a postjudgment motion until December 30, 2010. The motion further stated that Garmon’s staff had informed the former husband that Garmon was retiring in December 2010 and had referred him to Randy Phillips, another local attorney, to seek out further assistance regarding developments in his divorce case. Additionally, the motion stated that on January 27, 2011, the former husband met with Phillips regarding the status of his case and was informed that Garmon had not filed any type of postjudgment motion until December 30, 2010, which was outside the 30-day period provided for filing a motion to alter, amend, or vacate the trial court’s judgment. See Rule 59, Ala. R. Civ. P. Because the 42-day period for filing an appeal had also expired, see Rule 4, Ala. R.App. P., the former husband was also informed that he had no recourse for appealing the judgment. The motion also alleged that on January 28, 2011, the former husband was informed that Garmon had not retired but had instead voluntarily surrendered his Alabama State Bar license on December 31, 2010; that same day, the former husband retrieved his case file from Garmon’s office and began contacting other attorneys in an attempt to revive his case and appeal the divorce judgment. Thus, in his motion, the former husband asserted that Garmon had continuously and actively misled the former husband into believing that Garmon had filed a timely postjudgment motion and that, upon learning that Garmon had not filed a timely postjudgment motion, he had diligently sought out legal representation and filed a Rule 60(b) motion.

In response to the Rule 60(b) motion, the former wife argued that the former husband was not entitled to relief under Rule 60(b)(6) because his claim for relief fell under Rule 60(b)(1) and because the former husband had filed the Rule 60(b) motion more than four months after the entry of the November 9, 2010, judgment. The trial court conducted a hearing regarding the former husband’s Rule 60(b) motion. Following that hearing, on May 19, 2011, the trial court denied the former husband’s Rule 60(b) motion. The former husband timely appealed the denial of his Rule 60(b) motion to this court.

This court reviews a trial court’s ruling on a Rule 60(b) motion to determine whether the trial court exceeded its discretion. McArdle v. Bromfield, 540 So.2d 91, 93 (Ala.Civ.App.1989) (“[T]he grant or denial of a Rule 60(b) motion is subject to reversal only if the trial court abused its discretion.” (citing Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981))).

Rule 60(b) provides, in pertinent part:

“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

In this case, the former wife argued that the former husband’s Rule 60(b) motion was due to be denied because, she said, the former husband was not entitled to relief under Rule 60(b)(6); rather, she asserted, the former husband’s claim fell under Rule 60(b)(1) and had been asserted untimely because he had filed the Rule 60(b) motion more than four months after the entry of the November 9, 2010, judgment. However, our supreme court

“has determined ... that an extraordinary circumstance exists that can be considered as a basis for relief under Rule 60(b)(6), despite the fact that it also can serve as a basis for relief under Rule 60(b)(1):
“ ‘[Wjhere a motion for relief is filed more than four months after dismissal of the case where the dismissal was the result of the mistake, inadvertence, or excusable neglect of counsel, but the delay in filing the motion for relief was due to the active misrepre sentation by counsel to his client as to the status or progress of the case’

Ex parte Branson Mach., LLC, 78 So.3d 950, 958 (Ala.2011) (quoting Chambers Cnty. Comm’rs v. Walker, 459 So.2d 861, 865 (Ala.1984)) (emphasis added); see Ex parte Oden, 617 So.2d 1020, 1025-26 (Ala.1992) (reversing a denial of a Rule 60(b) motion and stating that “Dr. Oden’s diligent efforts in the face of the alleged persistent manipulation, inaction, and deception by his attorney at least arguably present the sort of extraordinary circumstances contemplated by Rule 60(b)(6)”).

In this case, the former husband’s Rule 60(b) motion clearly stated that Garmon, his previous attorney, had actively misrepresented to him that Garmon had filed a postjudgment motion seeking relief from the divorce judgment when, in actuality, Garmon had failed to file a motion seeking relief until December 30, 2010, which was outside the period provided for seeking relief from the judgment under Rule 59. The trial court conducted a hearing regarding the former husband’s Rule 60(b) motion. At the hearing, the record shows that the former husband’s counsel and the former wife’s counsel presented only legal arguments regarding the Rule 60(b) motion. At the hearing, the former wife’s counsel stated: “Judge, we don’t disagree with anything in the chronology with regard to dates. We would agree with that entirely. Agree with what’s been said.” However, based on this statement we cannot conclude that the former wife’s counsel stipulated to the underlying facts contained in the motion; instead, we determine that he stipulated only to the pertinent dates.

Moreover, the former husband did not testify at the hearing regarding the allegations of Garmon’s consistent misrepresentations. Additionally, the former husband and his attorney failed to present any other form of evidence to support the allegations contained in the Rule 60(b) motion; the record does not contain an affidavit or a verified pleading attesting to the allegations. Thus, there was no evidence, through either an affidavit or testimony, but only arguments of counsel presented in support of the former husband’s Rule 60(b) motion. See Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (“ ‘Motions and arguments of counsel are not evidence’” (quoting Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 845 (Tex.App.1999))).

In Lee v. Tolleson, 502 So.2d 354, 357 (Ala.1987), our supreme court affirmed a trial court’s denial of a party’s Rule 60(b) motion on the ground that the trial court could not have exceeded its discretion given that the record lacked evidence supporting the party’s motion. In Lee, our supreme court noted that, “[i]n determining whether there is an abuse of discretion, t[he] [cjourt considers the grounds for the motion and the matters presented in support thereof.” 502 So.2d at 356. Additionally, in Marsh v. Marsh, 338 So.2d 422, 423 (Ala.Civ.App.1976), this court affirmed a trial court’s denial of a Rule 60(b) motion because the party had failed to provide evidence to support the grounds he asserted in his Rule 60(b) motion. Specifically, in Marsh this court stated:

“In determining whether there was an abuse of discretion, the reviewing court looks to the grounds presented by the motion and matters presented in support thereof. In this case, nothing by way of testimony or affidavit was presented. The motion primarily charged that the judgment was contrary to the stipulation of the parties in relation to the amount of the attorney fees granted. The record of the stipulation presented on appeal does not support the charge.”

Id.

In this case, as noted above, the former husband failed to present any evidence supporting the allegations contained in his Rule 60(b) motion. Therefore, like in Marsh and Lee, we cannot conclude that the trial court exceeded its discretion in denying the former husband’s Rule 60(b) motion for relief from the divorce judgment. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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

      . The former husband's postjudgment motion was untimely because it was filed on December 30, 2010, which was outside the 30-day period provided for filing a motion to alter, amend, or vacate the trial court's judgment. See Rule 59, Ala. R. Civ. P.