author: MAIN, Justice. MURDOCK, Justice

text:
    Ex parte ALABAMA POWER COMPANY. (In re Capitol Container, Inc. v. Alabama Power Company).
    1091421.
    Supreme Court of Alabama.
    Aug. 19, 2011.

      James A. Byram, Jr., and Robin G. Laurie of Balch & Bingham LLP, Montgomery; and Ed R. Haden and Scott B. Grover of Balch & Bingham LLP, Birmingham, for petitioner.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for respondent.
   MAIN, Justice.

Alabama Power Company (“Alabama Power”), the defendant in an action filed by Capitol Container, Inc. (“Capitol”), has filed a petition for a writ of mandamus, asking this Court to direct the trial court to dismiss Capitol’s claims against Alabama Power for lack of subject-matter jurisdiction. Alabama Power argues that the Alabama Public Service Commission (“the APSC”) has exclusive jurisdiction over those claims and that Capitol failed to exhaust its administrative remedies before filing the action. We grant the petition and issue the writ.

Factual Background and Procedural History

Capitol’s principal place of business is in Montgomery, and Capitol obtains its electrical power from Alabama Power. On January 7, 2010, Capitol filed a complaint in the Montgomery Circuit Court alleging that Alabama Power was refusing to refund or otherwise credit or to reimburse Capitol for overpayments Capitol had made to Alabama Power as a result of Capitol’s being on an incorrect power-rate plan.

In its complaint, Capitol alleged that it had been placed under a rate plan known as “Light and Power Time-of-Use Small” (“LPTS”) by Alabama Power. Capitol asserted that on February 5, 2009, Auditec, a utility-auditing firm, contacted Capitol and offered to evaluate Capitol’s billing records for electrical power to ascertain whether Capitol was under the appropriate rate plan for its electrical needs. Auditec determined that Capitol should be under a rate plan known as “Restricted Light & Power Service — Manufacturing” (“LPLM”). Capitol contacted Alabama Power, and, after discussion, Alabama Power changed Capitol from the LPTS rate plan to the LPLM rate plan. Capitol alleged that its monthly electrical-utility bills were reduced by approximately $3,000 and that it paid Auditec a fee for discovering that it had been being billed under an incorrect rate plan.

Capitol asserted, among other claims, negligence, wantonness, suppression, and unjust enrichment. Essentially, Capitol averred that Alabama Power was under a duty to advise it of the rate plan or classification that would be appropriate for it and had breached that duty, resulting in Capitol’s being charged a higher rate for electrical power; that Alabama Power had been unjustly enriched by the overpayment; and that Alabama Power refused to repay or to compensate Capitol for the overpayments. In three of the five counts of the complaint, Capitol alleged that Alabama Power’s actions were part of a pattern and practice of conduct as related to its commercial customers. Count one alleged in part: “Defendant has a pattern and practice of applying the wrong rate plan or classification to commercial customers and thus has overcharged and continues to overcharge numerous commercial customers.” Count two alleged in part: “Defendant has a pattern and practice of applying the wrong rate plan or classification to commercial customers and thus has in its possession money which belongs to numerous commercial customers.” Count three alleged in part: “Defendant has a pattern and practice of failing to disclose to commercial customers that Defendant is applying the wrong rate plan or classification.”

On January 25, 2010, Alabama Power moved to dismiss Capitol’s action under Rule 12(b)(1), Ala.R.Civ.P., arguing that the trial court lacked jurisdiction over Capitol’s claims. Specifically, Alabama Power argued that the APSC has exclusive jurisdiction over the matters that are the subject of Capitol’s complaint and that Capitol had failed to exhaust its administrative remedies through the APSC before filing the complaint. With its motion and supporting brief, Alabama Power attached the affidavit of John A. Garner, an administrative law judge with the APSC. In his affidavit, Garner stated that [the APSC has general supervision of public utilities pursuant to § 87-1-32, Ala.Code 1975, and exclusive jurisdiction pursuant to § 37-1-31, Ala.Code 1975, and] that the APSC regulates Alabama Power pursuant to § 37-1-30 and § 37-4-1(7), Ala.Code 1975. Garner explained that, pursuant to assorted statutes and to rules established by the APSC, utilities must file their rates and service regulations with the APSC and must obtain prior approval of the APSC to change any of those rates or service regulations. Garner also stated:

“In addition to the General Rules of the APSC and the Alabama Power Company’s service regulations, the complaint procedures outlined in the Alabama Code and the Rules of Practice of the Alabama Public Service Commission are applicable to any complaint made to the APSC with respect to retail electric services, rates, and any related matter, and also to ‘any rates, service regulation, classification, practice or service in effect or proposed to be made effective’ with respect to Alabama Power Company’s provision of retail electric services in the State of Alabama. Alabama Code, § 37-1-83. This includes Alabama Power Company’s contracts with and service to its customers; the information its personnel discloses to or withholds from its customers or prospective customers in connection with Alabama Power Company’s retail electric service; Alabama Power Company’s rates; and all of its dealings with those persons or entities who are consumers or prospective consumers of electric services in Alabama.”

Filially, Garner stated that his review of the APSC’s records indicated that Capitol had not filed a complaint with the APSC related to Alabama Power. Alabama Power also attached to its motion to dismiss copies of the General Rules of the APSC (notably Rule 11, “Rate Schedules, Rules, and Regulations,” and Rule 15, “Overbill-ing and Underbilling”); and the Special Rules of the APSC (notably Rule E-15, “Billing Inaccuracies”).

On March 2, 2010, Alabama Power submitted supplemental authorities in support of its motion to dismiss. Alabama Power attached two orders from the APSC in other matters, which Alabama Power contended were illustrative of the APSC’s exclusive jurisdiction over rates and service regulations under § 37-1-31 and § 37-1-83.

On March 8, 2010, the trial court held a hearing on Alabama Power’s motion to dismiss. No testimony was presented, and the trial court heard argument from the parties. At the hearing, Alabama Power argued that Capitol became a commercial customer of Alabama Power in 1997 and that it was undisputed that the rate Capitol was assigned at that time was the best rate for Capitol at the time. Alabama Power asserted that, “[i]n about 2003, [Capitol] added a shift and did something different in the way it did business.” Alabama Power stated that Capitol subsequently discovered through an independent rate consultant that because of those changes it qualified for a different rate plan, one that would lower its cost of electricity. According to Alabama Power, an APSC rule provides that if a customer wants a different rate than the rate the customer is assigned, it is the customer’s responsibility to initiate the rate change rather than the utility’s responsibility to bring the matter to the customer’s attention. Alabama Power asserted that the APSC has exclusive jurisdiction over rates and service regulations.

Capitol argued that the case centered around the fact that Alabama Power would not refund the money it had overcharged Capitol. According to Capitol, Alabama Power’s customer service should “be looking out for this stuff’ rather than expecting lay customers to know which rate would be most advantageous. Capitol states that it was forced to rely on an independent rate consultant and that it incurred additional fees in hiring that rate consultant. Capitol stated that it was not challenging Alabama Power’s authority to establish rate plans or the propriety of the amount designated as the LPTS rate or the LPLM rate.

Capitol further argued that Alabama Power Co. v. Patterson, 24 Ala.App. 558, 138 So. 417 (1931), rev’d on other grounds, 224 Ala. 3, 138 So. 421 (1931), provides that construing rate schedules and determining which schedule is applied to a given state of facts is a function of the courts, rather than the APSC. Alabama Power argued that Patterson was distinguishable and that some of the authority it had submitted to the trial court established that Capitol’s allegations were within the exclusive jurisdiction of the APSC. Following the hearing, the trial court took the matter under advisement.

After the hearing, Alabama Power submitted a letter brief to the trial court, responding to Capitol’s reliance on Patterson, essentially arguing that Patterson supported the dismissal of Capitol’s claims.

On June 6, 2010, the trial court denied Alabama Power’s motion to dismiss. On July 16, 2010, Alabama Power petitioned this Court for a writ of mandamus directing the trial court to grant Alabama Power’s motion to dismiss.

Standard of Review
“ ‘ “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 Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). ‘The question of subject-matter jurisdiction is renewable by a petition for a writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003). A denial of a motion to dismiss for failure to exhaust administrative remedies is also reviewable by a petition for a writ of mandamus. See Ex parte Blue Cross & Blue Shield of Alabama, 582 So.2d 469, 472-73 (Ala.1991).”

Ex parte Cincinnati Ins. Co., 51 So.3d 298, 302 (Ala.2010).

Analysis

In its mandamus petition, Alabama Power argues that the trial court lacks subject-matter jurisdiction over Capitol’s claims based on the filed-rate doctrine and because its action is a challenge to Alabama Power’s service regulations, as to which the APSC has jurisdiction, and Capitol failed to pursue administrative remedies through the APSC. Alabama Power argues that its motion to dismiss was due to be granted based on the evidence it presented with its motion to dismiss and in subsequent pleadings.

In its answer to Alabama Power’s petition, Capitol asserts that the filed-rate doctrine does not apply to its claims against Alabama Power and that it was not challenging a “practice” as that term is used by the APSC. Capitol argues that its claims fall within the APSC’s general-enforcement jurisdiction, rather than within the APSC’s exclusive jurisdiction. Thus, Capitol contends, it was not required to pursue administrative remedies through the APSC before filing its action in the Montgomery Circuit Court. Capitol asserts that the courts have recognized the right of a customer to sue Alabama Power for overcharges and the right of Alabama Power to sue customers for undercharges. Patterson, supra; Holloway v. Alabama Power Co., 568 So.2d 1245 (Ala.Civ.App.1990).

In examining the pertinent statutes, we note:

“ ‘The fundamental principle of statutory construction is that words in a statute must be given their plain meaning.’ Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 814 (Ala.2003). ‘When a court construes a statute, “[wjords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” ’ Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).”

Trott v. Brinks, Inc., 972 So.2d 81, 85 (Ala.2007). In § 37-1-31, the jurisdiction of the APSC is explained as follows:

“The rights, powers, authority, jurisdiction and duties by this title conferred upon the [APSC] shall be exclusive and, in respect of rates and service regulations and equipment, shall be exercised notwithstanding any rights heretofore acquired by the public under any franchise, contract or agreement between any utility and municipality, county or municipal subdivision of the state, and shall be exercised, so far as they may be exercised consistently with the Constitution of the state and of the United States, notwithstanding any right heretofore so acquired by any such utility.”

(Emphasis added.) This Court has interpreted the phrase “service regulation” in § 37-1-31 by using the definition of that term found in § 37-4-1(9), Ala.Code 1975, which defines “service regulation” as “every rule, regulation, practice, act, or requirement in any way relating to the service or facilities of a utility, including ... in general the quality of any commodity, service, or product supplied.” See QCC, Inc. v. Hall, 757 So.2d 1115, 1117 (Ala.2000). Further, § 37-1-32, Ala.Code 1975, provides:

“The [APSC] shall have general supervision of all persons, firms and corporations operating utilities mentioned in this title, shall inquire into the management of the business and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine such utilities as often as may be necessary to keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property are owned, leased, controlled, managed, conducted and operated, not only with respect to adequacy, security and accommodation afforded by their service, but also with respect to their compliance with the provisions of this title, and any other law or laws, with the orders of the commission, and with the charter and franchise requirements. It shall assemble and keep on file, available for the use of the public, full statistics on the foregoing, as well as on all other matters or things connected with such utilities as is necessary to a full knowledge of their business and affairs.”

Additionally,

“[u]pon a complaint in writing made against any utility by ... any affected person, that any rate, service regulation, classification, practice or service in effect or proposed to be made effective is in any respect unfair, unreasonable, unjust or inadequate, or unjustly discriminatory, or unduly preferential, or constitutes unfair competition, or that the service is inadequate or cannot be obtained, the [APSC] shall proceed, and without such complaint, the [APSC], whenever it deems that the public interest so requires, may proceed, after notice as provided in this division, to make such investigation as it may deem necessary or appropriate; but no order affecting such rates, service regulation, classification, practice, or service complained of shall be entered by the [APSC] -without notice and a hearing.”

§ 37-1-83, Ala.Code 1975.

The plain meaning of §§ 37-1-31 and 37-4-1(9) is that the jurisdiction of the APSC is exclusive, and, as it relates to service regulations, that jurisdiction is to be exercised “notwithstanding any rights heretofore acquired by the public.” Within the meaning of § 37-1-31, service regulations include “every rule ... practice, act ... in any way relating to the service or facilities of a utility, including ... in general the quality of any ... service ... supplied.” See § 37-4-1(9). Capitol’s claims challenge acts or practices relating to the utility service supplied by Alabama Power and the quality of that service — i.e., Alabama Power’s alleged failure to provide Capitol with electricity at the proper rate for Capitol’s needs or to inform it of the appropriate rate when it was eligible for a lower rate and refusing to reimburse Capitol for the overcharges resulting from that failure and Alabama Power’s alleged pattern and practice of committing like actions against its other commercial customers. Therefore, Capitol’s claims directly challenge service regulations within the meaning of §§ 37-1-31 and 37-4-1(9).

Section 37-1-32, Ala.Code 1975, defines the authority of the APSC over entities such as Alabama Power, stating:

“The [APSC] shall have general supervision of all persons, firms and corporations operating utilities mentioned in this title, shall inquire into the management of the business and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine such utilities as often as may be necessary to keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property are owned, leased, controlled, managed, conducted and operated, not only with respect to adequacy, security and accommodation afforded by their service, but also with respect to their compliance with the provisions of this title, and any other law or laws, with the orders of the commission, and with the charter and franchise requirements. It shall assemble and keep on file, available for the use of the public, full statistics on the foregoing, as well as on all other matters or things connected with such utilities as is necessary to a full knowledge of their business and affairs.”

(Emphasis added.) By its plain language, this section grants the APSC general supervisory authority over entities such as Alabama Power, including the express right to make inquiries regarding the management of Alabama Power and its compliance with statutory authority and the orders of the APSC. The legislature’s statement in § 37-1-31 that the authority conferred on the APSC by Title 37 “shall be exclusive” grants the APSC general supervisory authority that excludes all other sources of authority. Given this broad statutory authority, the APSC had exclusive jurisdiction over Capitol’s claims in that the claims relate to the business management of Aabama Power in its pattern and practice of dealing with its commercial customers.

Applying §§ 37-1-31, 37-1-32, and 37-4-1(9), this Court reached a similar conclusion in QCC, Inc. v. Hall, supra. In that case, Hall asserted claims of fraud, fraudulent suppression, negligence, and wantonness against QCC, Inc., a long-distance-telephone-service provider. Hall alleged that QCC, in a practice called “slamming,” had changed her long-distance-telephone-service carrier without her permission, resulting in her paying higher long-distance telephone charges. QCC moved to dismiss Hall’s claims, arguing that “the APSC [had] primary and exclusive jurisdiction over Hall’s claims and that Hall did not exhaust her administrative remedies through pursuit of proceedings before the APSC.” 757 So.2d at 1117. The trial court denied QCC’s motion, and QCC obtained permission to appeal the decision under Rule 5(a), Aa.R.App.P.

Construing the language of § 37-4-1(9), this Court determined that Hall’s claims were “grounded on a challenge to service regulations,” under § 37-1-31, “because she attacked] a practice relating to the service of the utility.” 757 So.2d at 1117; see § 37-4-1(9) (defining a service regulation as “including] every ... practice ... in any way relating to the service ... of a utility”). Referencing the general authority granted the APSC by § 37-1-32 and the exclusive nature of the APSC’s jurisdiction as described in § 37-1-31, this Court concluded: “Under the APSC’s general supervisory power over the manner in which the business is conducted, a regulatory activity as to which its jurisdiction is exclusive, the circuit court lacked jurisdiction over the subject-matter of Hall’s claim.” 757 So.2d at 1117. This Court reversed the trial court’s decision after discussing and rejecting Hall’s arguments — which are unrelated to Capitol’s arguments in this action. See also Talton Telecomm. Corp. v. Coleman, 665 So.2d 914 (Ala.1995) (two Justices concurring in the main opinion and four Justices concurring in the result) (utility company had a uniform practice of imposing a 15-minute limitation on toll calls that originated from correctional facilities).

This Court discussed Taitón in QCC, stating:

“In Taitón ..., the plaintiffs challenged the conduct of telephone-service providers in limiting the duration of ‘collect’ telephone calls placed by prison inmates, a practice that substantially increased telephone bills because an additional collect call after the cut-off point to continue the conversation incurs higher rates at the outset of the new call. This Court reversed the trial court’s denial of a motion to dismiss the plaintiffs’ complaint and noted that the plaintiffs’ claim, based on the asserted absence of any tariff or other regulation permitting time limits resulting in substantially higher telephone bills, involved ‘rates and service regulations’ and therefore ‘[fell] squarely within the scope of the APSC’s exclusive jurisdiction.’ Id. at 916.”

QCC, 757 So.2d at 1117.

Capitol argues that QCC and Taitón are distinguishable from this case because, it says, QCC involved a uniform policy by the utility that impacted the rate-related authority of the APSC, and Taitón involved an undisputed policy by the utility of imposing a time limit on all toll calls originating from correctional institutions. Capitol asserts that its claims relate to isolated and disputed acts by Alabama Power with regard to Capitol.

Although the facts in QCC and Taitón involved the rates charged by telephone-service providers, nothing in the reasoning of those decisions limits the authority of the APSC to rate-related issues. Furthermore, the statutory language of §§ 37-1-31 and 37-1-32 expressly grant the APSC authority over non-rate-related issues. Specifically, § 37-1-31 grants the APSC authority over “rates and service regulations ” and § 37-1-32 grants the APSC a broader, general supeiwisory authority over utilities. Accordingly, QCC and Tai-tón are not distinguishable from this case on the basis that the jurisdiction of the APSC is limited to rate-related issues or to practices that are undisputed, as Capitol suggests.

Finally, Capitol relies on two decisions it contends support its argument that the APSC does not have exclusive jurisdiction in this case. In Alabama Power Co. v. Patterson, 24 Ala.App. 558, 562, 138 So. 417, 420 (1931), rev’d, 224 Ala. 3, 138 So. 421 (1931), the Court of Appeals, in addressing a utility customer’s claim that it had been overcharged by Alabama Power, which had applied the wrong rate to the customer, stated:

“The construction of rate schedules, and determination of which schedule is effective to a given state of facts, is a purely judicial function, one subject to exercise by the courts alone, and the Alabama Public Service Commission has no power nor authority to determine that issue. Its function is to fix rates for the future, to pass upon what is and what is not a reasonable rate, not to decide which of two tariffs is in effect at a given time and applicable to a given state of facts.”

Patterson involved the merger or consolidation of two power companies and the question of what rate was applicable following the merger and how that rate had been established. The Alabama Supreme Court reversed the judgment of the Court of Appeals and in so doing, stated:

“As to whether or not the rate fixed for the city of Mobile between the electric company and its successor, the Gulf Company, is so much greater than the one applicable to the city of Montgomery as to operate as an unlawful discrimination, is a question not passed upon by the Court of Appeals. It is sufficient to suggest, however, that at the time the respective rates were fixed, the physical conditions existing between the Alabama Power Company and Montgomery and the electric or Gulf Company and Mobile were in no wise similar.
“If, since the consolidation of the companies, the conditions have become so identical or similar that these places should enjoy the same rate, redress should be first sought through the public service commission.”

224 Ala. at 5, 138 So. at 423.

Conversely, Holloway v. Alabama Power Co., 568 So.2d 1245 (Ala.Civ.App.1990), involved an action filed in the circuit court by Alabama Power seeking to recover a sum of money it contended it had under-billed a customer for electricity. The jury returned a verdict for the customer, the trial court granted Alabama Power’s motion for a judgment notwithstanding the verdict (now a judgment as a matter of law), and the Court of Civil Appeals affirmed. However, Holloway does not support Capitol’s position, because Title 37 of the Alabama Code of 1975 grants the APSC jurisdiction over actions against public-utility companies; Title 37 does not purport to bestow jurisdiction over a utility’s actions against its customers.

For these reasons, both Patterson and Holloioay are materially distinguishable from this case. As explained above, the exclusive jurisdiction of the APSC, including jurisdiction over claims such as those at issue in this action, is based on the Alabama Legislature’s broad and express grant in § 37-1-31. Accordingly, Capitol’s reliance on Patterson and Holloway is misplaced.

The APSC is authorized under § 37-1-83 to process claims by any affected person challenging the adequacy of service, and the trial court’s judgment of dismissal for want of subject-matter jurisdiction would be without prejudice to the pursuit of any such recourse established by the legislature. Only after exhausting its administrative remedies may Capitol seek redress in the courts. See § 37-1-120 et seq., Ala.Code 1975 (setting out the appeals process after administrative remedies have been exhausted). It is not within the province of this Court to expand the remedies available in the absence of any legislative basis for an exception to the clear mandate for the exclusive jurisdiction of the APSC.

Conclusion

Based on the foregoing, we conclude that because Capitol failed to exhaust its administrative remedies with the APSC before seeking redress from the courts, dismissal is required. We grant Alabama Power’s petition for a writ of mandamus, and we direct the trial court to vacate its June 6, 2010, order and to dismiss Capitol’s action for failure to exhaust its administrative remedies.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

WISE, J., recuses herself.

MURDOCK, Justice

(concurring in the result).

This case concerns a failure by Alabama Power Company to advise a commercial customer that the rate plan under which it had operated for some time, and which at one time was the “correct” rate plan for that customer, is no longer so in light of changes in the customer’s business operations. The complaint in this case does not allege that the rate charged by Alabama Power Company is “illegal” or otherwise impermissible, i.e., a rate that cannot be lawfully charged to the customer. Nor has there been a showing that the rate charged is unlawful as applied to the customer. As best I can discern, this case simply concerns the question which of two lawful rates has become more advantageous to the customer as a consequence of changes in its business and, specifically, a challenge by the customer to Alabama Power’s practice of undertaking to advise customers as to which of two lawful rates is more advantageous to them only in response to an inquiry from the customer. Thus, the plaintiff here challenges a “practice” of Alabama Power. Moreover, it is a practice that is the subject of a specific regulation by the Alabama Public Service Commission (“the APSC”), he., APSC Rule 11(E), that appears to be within the authority granted the APSC by Title 37, Ala.Code 1975.

This is not a case of Alabama Power’s applying the wrong rate to a customer’s bill when only one rate is lawfully available, misreading a meter, failing to properly apply a customer’s payment to an account, making a computational error, or otherwise “overcharging” a customer in a manner that can and does occur in commercial transactions generally. Because this case addresses the propriety of a practice that falls within the exclusive, original jurisdiction of the APSC, the action was not within the original jurisdiction of the circuit court. I therefore concur with the result reached by the main opinion in granting the relief requested.

Although I concur in the result reached by the main opinion, I do not concur in all respects with the analysis offered therein. Among other things, I note the discussion in the main opinion of Alabama Power Co. v. Patterson, 24 Ala.App. 558, 138 So. 417 (1931), rev’d, 224 Ala. 3, 138 So. 421 (1931), and Holloway v. Alabama Power Co., 568 So.2d 1245 (Ala.Civ.App.1990), and the conclusion reached from that discussion that Title 37 conveys exclusive jurisdiction to the APSC over actions by customers against public utilities, but not over actions by public utilities against customers. As I read these cases, however, their analysis and outcome — and a correct reading of Title 37 — look not to whether the action is one “against the utility” by a customer, or “against the customer” by the utility, but rather to the nature of the action. The issue is not who the defendant is; the issue is what the lawsuit is about.

I also take this opportunity to comment on a practice noted by the main opinion to have been employed in this case, and that I have seen employed in some other cases, of using an attorney — here an administrative law judge for the APSC — to give “expert testimony” as to the law. As a general rule, lawyers’ arguments may guide a court to the law; witness testimony may not.

“[A]s a general rule, an expert witness may not testify as to questions of law such as the principles of law applicable to a case, the interpretation of a statute, the meaning of terms in a statute, the interpretation of case law, or the legality of conduct. It is the role of the trial judge to determine, interpret and apply the law applicable to a case.”

France v. Southern Equip. Co., 225 W.Va. 1, 14-15, 689 S.E.2d 1, 14-15 (2010).

“Although witnesses may be permitted, in a proper case, to give an opinion on an ultimate fact involved in a case, witnesses may not give an opinion on a question of domestic law or on matters that involve questions of law; expert testimony proffered solely to establish the meaning of a law is presumptively improper. Thus, an expert or nonexpert opinion that amounts to a conclusion of law cannot be properly received in evidence, because the determination of such questions is exclusively within the province of the court.”

31A Am.Jur.2d Expert and Opinion Evidence § 117 (2002). See also 82 C.J.S. Evidence § 851 (2008) (“As a general rule, an expert witness may not give his or her opinion on a question of domestic law [as opposed to foreign law] or on matters which involve questions of law, and an expert witness cannot instruct the court with respect to the applicable law of the case, or infringe on the judge’s role to instruct the jury on the law.... An expert may not testify as to such questions of law as the interpretation of a statute, ... or case law, ... or the legality of conduct.”).

In significant measure, the testimony provided by the administrative law judge in this case went directly to a legal issue— whether the trial court had original jurisdiction over the dispute presented — that was for the trial court in its role as the finder of law, not an issue of law that presented itself as a “necessary operative fact.” See 32 C.J.S. Evidence § 851. The general rule stated above therefore was applicable. Accordingly, it is without the aid of the testimony of the legal expert in this case that I reach the legal conclusion that the exclusive, original jurisdiction over the plaintiffs claims is with the APSC.

      . The letter brief is dated March 9, 2010, but the circuit clerk's office stamp indicates that the letter brief was filed on June 16, 2010.

      . Rule 11 (E) addresses when a utility is under a duty to initiate a review of a customer's rate and advise a customer whether it is operating under the most advantageous rate plan. That rule states:
      "Where more than one schedule of rates has been approved by the Commission for the same class of service, it shall be the duty of the Utility to advise the customer, upon request, the rate and schedule which is most advantageous to the customer for his requirements of service, based upon information furnished in writing to the Utility by the customer, which must be a part of the contract for service.
      "In applying this Rule, the Utility shall not be required to effect more than one change in service in any twelve (12) month period, unless the customer makes a permanent change in his installation or operating conditions.”

      . In particular, I note that the decision of the Alabama Supreme Court in Alabama Power Co. v. Patterson, 224 Ala. 3, 138 So. 421 (1931), is not apposite to the present case. That case turned on what schedule of rates applied to residential customers generally in the City of Mobile following a merger of three electrical-utility companies that resulted in the formation of what is now known as Alabama Power Company. Specifically, the question presented was which of the three predecessor companies’ rate schedules should apply to customers throughout Mobile following the merger, exactly the type of rate question that is consigned by the statute to the exclusive, original jurisdiction of the APSC. It was for this reason that the Supreme Court reversed the judgment of the Alabama Court of Appeals.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    CRESTVIEW MEMORIAL FUNERAL HOME, INC. v. Faye B. GILMER.
    1100235.
    Supreme Court of Alabama.
    Aug. 26, 2011.

      M. Christian King, Terry W. McCarthy, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; and Bert P. Taylor of Taylor Ritter, P.C., Orange Beach, for appellant.
    W. Lee Pittman and J. Chris Cochran of Pittman, Dutton & Heliums, P.C., Birmingham, for appellee.
   WOODALL, Justice.

Faye B. Gilmer sued Crestview Memorial Funeral Home, Inc. (“Crestview”), Garland Jones, Barry Taul, and Mary (“Meg”) Caldwell, alleging claims related to services Crestview had provided with regard to the funeral of Gilmer’s husband, Jack Gilmer (“Jack”). The trial court entered a summary judgment in favor of the defendants on all the claims against them. Gil-mer appealed, and this Court affirmed the trial court’s judgment as to the claims against Jones, the negligent-supervision claim against Jones and Crestview, and the negligent- or wanton-conduct claim against all the defendants, reversed the trial court’s judgment as to the tort-of-outrage, suppression, and breach-of-contract claims against Crestview, Taul, and Caldwell, and remanded the case for further proceedings consistent with our opinion. Gilmer v. Crestview Mem’l Funeral Home, Inc., 35 So.3d 585 (Ala.2009) (“Gilmer I”).

The case was then tried before a jury, and Taul and Caldwell were eventually dismissed from the action. The trial court granted Gilmer’s motion for a judgment as a matter of law (“JML”) on the breach-of-contract claim. The suppression and tort-of-outrage claims were submitted to the jury, which returned a verdict in Crest-view’s favor on the tort-of-outrage claim and in Gilmer’s favor on the suppression claim. The jury awarded Gilmer $350,000 in compensatory damages on the suppression and breach-of-contract claims and $3 million in punitive damages on the suppression claim. The trial court entered a judgment based on that verdict, but later remitted the punitive-damages award to $1,050,000, pursuant to § 6-ll-21(a), Ala. Code 1975.

Crestview has appealed the trial court’s judgment as to the breach-of-contract and suppression claims, as well as the compensatory-damages and punitive-damages awards. We reverse the trial court’s judgment and remand the case for a new trial on the breach-of-contract and suppression claims.

Facts and Procedural History

Jack died on July 16, 2003. That same night, Gilmer spoke with Taul, the manager of Crestview, by telephone to set up a time for her to go to Crestview to arrange for Jack’s funeral. During the conversation, according to Taul, he asked for and received Gilmer’s oral authorization to embalm Jack’s body.

On July 17, 2008, Gilmer went to the funeral home operated by Crestview, where she met with Caldwell, the funeral director, to arrange the funeral. During their meeting, Caldwell asked Gilmer to sign an “Authorization to Embalm and Prepare” (“the authorization”), which provided, among other things, that Crestview could “use the services of independent embalmers, apprentices or student interns in connection with such embalming, care and preparation for disposition, provided that any person rendering such services is allowed to perform such work under applicable law.”

At the time Gilmer signed the authorization, Crestviev/s only licensed embalmer, Billy Groves, was on medical leave and was not available to embalm Jack’s body. Caldwell did not tell Gilmer that Groves was on leave. Gilmer testified that she did not read the authorization before signing it and that, to her recollection, Caldwell and she did not discuss who would do the embalming. However, Gilmer also testified that had she known that Crestview did not have a licensed embalmer available, she would have gone to a different funeral home.

The evidence indicated that, when Groves was unavailable, Crestview sometimes contracted with other licensed embalmers to do embalming at its funeral home. However, that did not occur in this case. Instead, Taul, who was neither an apprentice nor a licensed embalmer, embalmed Jack’s body. Taul testified that, although he was not licensed at that time, he had embalmed thousands of bodies and had been working in the funeral industry since 1987. When Caldwell met with Gil-mer about Jack’s funeral, Caldwell was an apprentice embalmer, and, although she had completed all the necessary steps to become a licensed embalmer, she had not yet received her license. Caldwell became a licensed embalmer on July 31, 2003, two weeks after Jack’s body was embalmed.

The record also indicates that, after Jack’s body was embalmed, Caldwell completed an internal embalming report describing the embalming process. Taul testified that he told Caldwell what to put in the report. Caldwell signed the report and wrote “embalmer” by her signature, even though she had not embalmed Jack’s body and was not present when Taul performed the embalming.

Shortly after Jack’s funeral, Gilmer’s daughter, Terri Weinmann, read in a newspaper article that Crestview had not had a licensed embalmer during July 2003. Weinmann showed the article to Gilmer, who became very upset. Gilmer testified that the idea that Jack’s body had been embalmed by someone who was not a licensed embalmer had affected her “very bad[ly].”

At her mother’s request, Weinmann contacted Crestview and spoke with Taul. Weinmann testified that Taul told her that Jack’s body had been embalmed by a licensed embalmer. Weinmann also testi-fled that she asked Taul if he could provide her with documentation to verify that the person who embalmed Jack’s body had been licensed. A few days later, Wein-mann went to the funeral home, where she was given a copy of the embalming report prepared by Caldwell and a copy of Caldwell’s embalmer’s license. After she returned home, Weinmann noticed that, on the embalming report, the word “assistant” had been crossed out and the word “embalmer” had been written near Caldwell’s signature. Weinmann also noticed that the embalmer’s license did not show the date on which it had become effective. Weinmann contacted the Alabama Board of Funeral Service and was informed that Caldwell’s license had become effective on July 31, 2003, two weeks after Jack’s body had been embalmed.

Gilmer sued Crestview, Jones, Caldwell, and Taul (collectively “the defendants”), alleging claims of negligent or wanton conduct, suppression, breach of contract, and the tort of outrage. Gilmer later amended her complaint to add a negligent-supervision claim against Crestview and Jones, the owner and president of Crestview. The defendants filed a motion for a summary judgment, which was denied. They later moved the trial court to dismiss Gil-mer’s claims pursuant to Rule 12(b)(6), Ala. R. Civ. P. The trial court granted that motion, and Gilmer appealed.

In Gilmer I, this Court noted that, because the trial court had reviewed eviden-tiary submissions in reaching its decision on the motion to dismiss, “ ‘ “the motion [was] converted into a motion for summary judgment.” ’ ” 35 So.3d at 590 (quoting Robinson v. Benton, 842 So.2d 631, 634 (Ala.2002), quoting in turn Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997)). This Court affirmed the summary judgment in favor of Jones on all the claims against him and in favor of Crestview on the negligent-supervision claim. The Court also affirmed the summary judgment in favor of the defendants on the negligent- and/or wanton-conduct claim but reversed the judgment as to the tort-of-outrage, suppression, and breach-of-contract claims against Crestview, Taul, and Caldwell. The Court then remanded the case to the trial court for further proceedings.

A jury trial began in May 2010. At the close of the evidence, Gilmer moved for a JML on the breach-of-contract and suppression claims. Taul and Caldwell moved for a JML on all the claims against them, and Crestview moved for a JML on the suppression and tort-of-outrage claims. The trial court granted Gilmer’s motion for a JML as to the breach-of-contract claim against Crestview, but it determined that the suppression and tort-of-outrage claims should go to the jury. Upon the joint motion of Gilmer, Taul, and Caldwell, the trial court dismissed Taul and Caldwell without prejudice before the case was submitted to the jury.

On May 14, 2010, the jury returned a verdict in Crestview’s favor on the tort-of-outrage claim and in Gilmer’s favor on the suppression claim. The jury awarded Gil-mer $350,000 in compensatory damages, which were jointly assessed with regard to both the breach-of-contract claim and the suppression claim. The jury also awarded $3 million in punitive damages with regard to the suppression claim.

The trial court entered a judgment on the jury’s verdict. Crestview renewed its motion for a JML or, in the alternative, it moved for a new trial. As a further alternative should the court deny its first motion, Crestview moved the trial court for a remittitur of both the compensatory damages and the punitive damages.

After a hearing, the trial court denied Crestview’s motion for a JML or a new trial. The trial court also declined to reduce the compensatory-damages award but reduced the punitive-damages award to $1,050,000, pursuant to § 6-11-21 (a), Ala.Code 1975. Crestview now appeals.

Issues

Crestview argues that the trial court erred in denying its motion for a JML on the suppression claim and in entering a JML in Gilmer’s favor on the breach-of-contract claim. Crestview also argues that the compensatory-damages and punitive-damages awards were excessive and that the trial court erred in holding that the small-business cap on punitive damages provided in § 6 — 11—21(b), Ala.Code 1975, did not apply to the punitive-damages award.

Standard of Review

“ ‘When reviewing a ruling on a motion for a JML ..., this Court uses the same standard the trial court used initially in granting or denying a JML.... A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.
“ ‘Furthei’more, a jury verdict is presumed to be correct, and that presumption is strengthened by the trial court’s denial of a motion for a new trial. In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party, and it will set aside the verdict only if it is plainly and palpably wrong.’ ”

Line v. Ventura, 38 So.3d 1, 7-8 (Ala.2009) (quoting Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999)) (citations omitted).

Analysis

Crestview first argues that the tidal court erred in denying its motion for a JML on the suppression claim. To prevail on this claim, Gilmer had to demonstrate: “(1) [that Crestview] had a duty to disclose an existing material fact; (2) [that Crest-view] concealed or suppressed that material fact; (3) [that Crestview’s] suppression induced [Gilmer] to act or refrain from acting; and (4) [that Gilmer] suffered actual damage as a proximate result.” Coilplus-Alabama, Inc. v. Vann, 53 So.3d 898, 909 (Ala.2010). Crestview argues that “[it] is entitled to a [JML] because Ms. Gilmer has failed to produce substantial evidence of [a] legal duty to disclose and reliance.” Crestview’s brief, at 18.

This Court has stated: “A party’s mere silence as to a material fact does not constitute fraud unless that party is under a duty to disclose that fact. A duty to disclose can arise either from a confidential relationship with the plaintiff or from the particular circumstances of the case.” Keck v. Dryvit Sys., Inc., 830 So.2d 1, 11 (Ala.2002) (citations omitted).

Crestview argues that there was no duty to disclose because “there was no confidential relationship between Ms. Gilmer and Crestview requiring [the] disclosure.” Crestview’s brief, at 19. However, Crest-view does not support this statement with citation to any relevant authority or provide any argument as to why this is so. Further, as noted previously, our cases have held that a duty to disclose can arise “from a confidential relationship ... or from the paiiicular circumstances of the case.” Keck, 830 So.2d at 11 (emphasis added). Crestview makes no argument regarding Gilmer’s contention that a duty to disclose arose under the circumstances of this case.

“ ‘[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)). Crestview has not demonstrated that, as a matter of law, it had no duty to disclose to Gilmer that Groves, its only licensed embalmer, was on medical leave and that a licensed embalmer would not be hired to embalm Jack’s body. Therefore, in this regard, Crest-view has not demonstrated that it is entitled to a JML on the suppression claim.

Similarly, Crestview cites several facts that, it argues, demonstrate that Gilmer did not rely on the alleged suppression. However, it again fails to provide citations to relevant legal authority in support of its argument. Therefore, in this regard, Crestview has not demonstrated that it is entitled to a JML on the suppression claim. See Butler, supra.

Crestview also argues that “ ‘an action for suppression will lie only if the defendant actually knows of the fact alleged to be suppressed.’ Here, the evidence shows that the people who allegedly suppressed information from Ms. Gilmer did not actually know the facts which were allegedly suppressed.” Crestview’s brief, at 19 (quoting Coilplus-Alabama, Inc., 53 So.3d at 909).

The facts allegedly suppressed in this case are that the embalming would not be done “under applicable law”—specifically, “that Crestview’s only licensed embalmer was not available to embalm Jack Gil-mer’s body and that a licensed embalmer would not be contracted to embalm Jack Gilmer’s body.” Gilmer’s brief, at 18. Crestview makes several arguments to the effect that Taul and Caldwell did not “know” that allowing Taul to embalm Jack’s body violated applicable law. However, it does not argue that Taul and Caldwell were unaware that Groves would not be available to embalm Jack’s body. On the contrary, it is undisputed that Taul and Caldwell knew that Groves was on medical leave and, therefore, unavailable to embalm Jack’s body.

Moreover, although Caldwell testified that, at the time she provided Gilmer with the authorization, she did not know who would do the embalming, Caldwell’s testimony indicates that she knew that Taul, who was neither an apprentice nor a licensed embalmer, had been embalming bodies at Crestview’s funeral home and that he should not have been embalming bodies without a license. Caldwell further testified that she knew it was possible that, if she did not contract with a licensed embalmer, Taul would do the embalming of Jack’s body. Further, there is no testimony indicating that Caldwell or Taul made any effort to arrange for a licensed embalmer to embalm Jack’s body.

In light of these facts, we cannot say, as a matter of law, that Caldwell, who provided Gilmer with the authorization, did not know that the embalming of Jack’s body would be done in violation of applicable law. Therefore, Crestview has not demonstrated that it is entitled to a JML on the suppression claim.

Crestview next argues that it is entitled to a new trial because, it says, “the trial court erred by granting [a] [JML] to [Gilmer] on the breach of contract claim.” Crestview’s brief, at 24. “In order to recover for breach of an agreement, the plaintiff must prove: (1) that the agreement existed; (2) that the defendant breached the agreement; and (3) that the plaintiff was damaged as a result of the breach.” Sokol v. Bruno’s, Inc., 527 So.2d 1245, 1247-48 (Ala.1988). Crestview does not dispute the existence or validity of the contract at issue here, the authorization, or that Gilmer has alleged a breach of that contract and damage resulting from the breach. However, Crestview does argue that it raised a question of fact as to whether the alleged breach was material under the circumstances of this case.

“A material breach is one that touches the fundamental purposes of the contract and defeats the object of the parties in making the contract.” Sokol, 527 So.2d at 1248. The portion of the authorization at issue here is the requirement that the embalming be done by someone “allowed to perform such work under applicable law.” Presumably, the purpose of this requirement is to ensure that the embalming is done properly, so as “to preserve and to disinfect the body” and “to preserve and protect the body up until the time of the burial,” which, according to the undisputed testimony at trial, are the main purposes of embalming.

Gilmer does not argue that the embalming of Jack’s body was done improperly or that it did not serve its alleged purposes. She did testify that, on the night of the visitation, Jack’s body appeared to be swollen. However, she does not expressly argue that this indicates that the embalming was poorly done. Moreover, both Caldwell and Taul offered alternative explanations for the swelling. Caldwell testified that swelling is common among eye donors, which Jack was, and Taul testified that a body can sometimes appear swollen when it is lying flat. Taul further testified that he performed the embalming properly-

Viewing this evidence in the light most favorable to Crestview, we cannot say that Gilmer established as a matter of law that the alleged breach of the contract — i.e., the failure to have a licensed embalmer embalm Jack’s body — went to the “fundamental purposes of the contract [or] defeated] the object of the parties in making the contract.” Sokol, 527 So.2d at 1248. Therefore, because Crestview presented substantial evidence creating a question of fact requiring resolution by the jury as to the materiality of the alleged breach of the contract, the trial court erred in entering a JML in favor of Gilmer with regard to that claim.

Materiality is also an aspect to be considered- in a claim of suppression. See Coilplus-Alabama, Inc., 53 So.3d at 909 (“[T]he elements of fraudulent suppression ... are: (1) the defendant had a duty to disclose the existing material fact; [and] (2) the defendant concealed or suppressed that material fact.... ” (emphasis added)). We cannot determine what, if any, influence the trial court’s JML on the breach-of-contract claim had on the jury’s consideration of the suppression claim. Moreover, we are unable to determine from the lump-sum award of compensatory damages what damages were assessed with regard to the suppression claim and the breach-of-contract claim, respectively. Therefore, we must reverse the trial court’s judgment as to both claims and remand the case for a new trial on the suppression and breach-of-contract claims.

REVERSED AND REMANDED WITH DIRECTIONS.

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

MURDOCK, J., concurs in the result.

      . This lump-sum award was not broken down between those two claims.

      . Gilmer has not appealed the trial court's judgment in Crestview’s favor on the tort-of-óutrage claim. Therefore, that claim is not before this Court.

      . Taul eventually received his embalming license in 2006.

      . Our decision to reverse the trial court’s judgment on these grounds pretermits consideration of Crestview’s arguments regarding the damages awards.


author: MURDOCK, Justice.

text:
    DON DRENNEN MOTOR CO., INC. v. William B. McCLUNG.
    1100734.
    Supreme Court of Alabama.
    Sept. 9, 2011.
    John Martin Galese and Cassandra J. Harris of Galese & Ingram, P.C., Birmingham, for appellant.
    A. Vincent Brown, Jr., Bessemer, for appellee.
   MURDOCK, Justice.

Don Drennen Motor Co., Inc. (“Drennen”), an automobile dealership, appeals from an order of the Jefferson Circuit Court requiring it to pay the costs of arbitration stemming from an action filed by one of Drennen’s former employees, William B. McClung. We reverse and remand.

I. Facts and Procedural History

Drennen employed McClung for about two years from 2007 to 2009. It is undisputed that as part of his employment with Drennen McClung signed a predispute arbitration agreement (“the arbitration agreement”) that provided, in pertinent part, as follows:

“Covered and Excluded Disputes: Disputes required to be arbitrated include, but are not limited to, claims based upon ... any statute prohibiting retaliation or retaliatory discharge....
“Rules and Costs/Severability: Don Drennen and Employee agree that arbitration under this Agreement shall be in accordance with the FAA [Federal Arbitration Act] and the Employment Arbitration Rules (‘Rules’) of the American Arbitration Association [ (‘AAA’) ], and that any proceedings shall take place in Jefferson County, Alabama. Notwithstanding those Rules, the parties shall share equally the costs, fees, and expenses incurred by arbitration except that if the Employee is unable to pay the costs of arbitration due to financial hardship, the Employee may apply to the AAA for ‘in forma pauperis ’ status in accordance with the criteria established by the U.S. Court of Appeals for the Eleventh Circuit, or alternatively, the Employee may apply to the AAA for the use of a pro bono arbitrator or for waiver, reduction, or deferral of the AAA’s fees based upon financial hardship. The AAA shall determine whether Employee qualifies for financial hardship or waiver, reduction, or deferral of the AAA’s fees and costs.”

McClung alleges that he sustained injuries while working in the line and scope of his employment with Drennen and that he received medical treatment for those injuries. Drennen terminated McClung’s employment in January 2009.

On June 19, 2009, before a ruling had been entered on his discovery petition, McClung filed a petition for pre-action discovery in the Birmingham Division of the Jefferson Circuit Court in which he asserted that discovery was necessary before he could file a complaint against Drennen alleging retaliatory discharge. On July 8, 2009, the Bessemer Division court entered an order permitting McClung to conduct pre-action discovery.

On July 28, 2009, Drennen filed a motion for a change of venue, arguing that McClung’s petition should have been filed in the Birmingham Division of the Jefferson Circuit Court. Drennen also filed on the same date a motion to stay the proceeding in the circuit court and to require McClung to submit all disputes to binding arbitration based on the arbitration agreement. On September 8, 2009, the Bessemer Division of the Jefferson Circuit Court entered an order transferring the case to the Birmingham Division of the Jefferson Circuit Court.

On February 12, 2010, the Birmingham Division of the Jefferson Circuit Court (“the trial court”) held a hearing on pending matters, and on February 22, 2010, McClung filed an amended petition seeking pre-action discovery. In response, Drennen filed a motion to dismiss or to stay the proceeding and to compel arbitration.

On February 23, 2010, before a ruling had been entered on his discovery petition, McClung filed a complaint in the Birmingham Division of the Jefferson Circuit Court against Drennen alleging retaliatory discharge. On March 1, 2010, Drennen filed a renewed motion to dismiss and to compel arbitration in response to McClung’s filing of the complaint. In the motion, Drennen again requested that arbitration be ordered in accordance with the arbitration agreement. The trial court set the motion for a hearing.

On July 16, 2010, the trial court heard arguments concerning Drennen’s motion to compel arbitration. After the trial judge recused himself and the case was reassigned, McClung filed a motion to set the case for a status conference. Drennen filed a response objecting to a status conference because its motion to compel arbitration was still pending before the trial court.

Following a status conference at which the trial court again heard arguments concerning Drennen’s motion to compel arbitration, the trial court entered an order on December 14, 2010, granting Drennen’s motion to compel arbitration, stating, in pertinent part, that “the arbitration must be completed within 90 days of the date of this Order. The parties are further ordered to appear on April 14, 2011, at 9:00 a.m. in courtroom 650 for a status update.”

McClung’s counsel proceeded to request from Drennen’s counsel through e-mail communication McClung’s employment file and a list of local arbitrators that would be acceptable to Drennen, as well as other information. Drennen’s counsel responded to these communications by e-mailing the requested information to McClung’s counsel multiple times. McClung’s counsel alleges that he did not receive these responses from Drennen’s counsel because the e-mail address Drennen’s counsel used was incorrect. Drennen’s counsel states that he used the e-mail address McClung’s counsel provided to the Alabama State Bar.

In any event, on March 3, 2011, McClung filed what he styled as a “Motion for Instructions Regarding Order Compelling Arbitration.” In the motion, McClung asserted that the December 14, 2010, order of the trial court compelling arbitration of the dispute “does not give any instructions as to whether or not [Dren-nen] will be required to pay the costs of arbitration associated with his request and Motion to Compel Arbitration which was granted by this Court.” McClung further alleged that he was “without sufficient funds to initiate an arbitration proceeding at the present time with the American Arbitration Association.” He argued that Drennen “has far greater resources to pay all costs associated with the arbitration proceeding which they, themselves, requested and were awarded against [McClung’s] objections.” Consequently, McClung asked the trial court “to clarify its Order issued December 14, 2010, ... as it pertains to which party should initiate the arbitration process” and “to require [Drennen] to pay all costs associated with the arbitration procedure which they requested and were granted against [McClung’s] objections.” McClung further requested that the trial court extend the time within which the parties must conduct the arbitration.

The following day, Drennen filed a response in opposition to McClung’s motion in which it contended that the arbitration agreement addressed and settled the issues McClung had contended needed clarification from the trial court. Drennen also observed that the trial court could not order arbitration that substantially differed from that outlined in the arbitration agreement.

On March 7, 2011, the trial court entered an order that provided as follows:

“1. The Parties are hereby ordered to submit this cause for arbitration pursuant to the Federal Arbitration Act and the contract made the subject of this dispute.
“2. Accordingly, this cause is hereby stayed pending the outcome of the aforementioned binding arbitration.
“3. The Defendant, Don Drennen Motor Co., Inc., is hereby ordered to pay the costs associated with the arbitration procedure, which they requested and were granted by this Court.
“4. The time for Arbitration completion as mentioned in the December 14, 2010, order is hereby extended, for an additional 90 days, as of the date of this order.
“5. Additionally, the arbitrator and the parties are ordered to inform the Court of said outcome within 30 days of the resolution. Parties are ordered to appear on June 30, 2011, at 9:00 AM in Courtroom 650, for a status update.
“6. The previous status update scheduled for April 14, 2011, at 9:00 AM is cancelled.”

Drennen appeals from the trial court’s March 7, 2011, order insofar as it orders Drennen to pay the costs associated with the arbitration proceeding.

II. Standard of Review

“[W]e no longer review either the grant or the denial of a motion to compel arbitration by petition for a writ of mandamus. Rather, Rule 4(d), Ala. R.App. P., effective on October 1, 2001, authorizes an appeal of an order either granting or denying a motion to compel arbitration.”

Hales v. ProEquities, Inc., 885 So.2d 100, 104 (Ala.2003). Our review of the issue presented in this case is de novo. See generally Lewis v. Conseco Fin. Corp., 848 So.2d 920, 922 (Ala.2002).

III. Analysis

With admirable candor, McClung concedes in his brief that the trial court erred in its March 7, 2011, order by requiring Drennen to pay the costs of arbitration in contravention to the terms of the arbitration agreement. The arbitration agreement provided that the parties must “share equally the costs, fees, and expenses incurred by arbitration,” and it explained the procedure McClung must follow if he lacks the resources to pay his share of those expenses. Ultimately that process involves a determination that, under the terms of the arbitration agreement, is to be made by the American Arbitration Association. As Drennen notes, “ ‘[gjeneral contract law requires a court to enforce an unambiguous, lawful contract, as it is written,’ ” Drennen’s brief, p. 19 (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 35 (Ala.1998)), and “ ‘a trial court may not enter orders compelling parties to act in a manner that is inconsistent with the parties’ own arbitration agreement.’ ” Drennen’s brief, p. 19 (quoting Northcom, Ltd. v. James, 848 So.2d 242, 245 (Ala.2002)). “ ‘A trial court’s order compelling arbitration that changes the terms of the arbitration provision will be reversed when “ ‘it appears that the trial court, although it ordered the parties to arbitrate, failed to compel arbitration in a manner consistent with the terms of [the] arbitration provision.’ ” ’ ” Drennen’s brief, pp. 19-20 (quoting Bowater, Inc. v. Zager, 901 So.2d 658, 669 (Ala.2004), quoting in turn Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845, 849 (Ala.2001), quoting in turn BankAmerica Housing Servs. v. Lee, 833 So.2d 609, 618 (Ala.2002)).

The order appealed from is due to be reversed insofar as it orders Drennen to pay the entire costs of arbitration, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.