text:
    Kentrial BELK, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00300-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.

      Kentrial Belk, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Kentrial Belk pled guilty to one count of the sale of cocaine. The Clay County Circuit Court sentenced Belk to serve ten years in the custody of the Mississippi Department of Corrections (MDOC). Belk later filed a petition for post-conviction relief, which the trial court dismissed. Belk now appeals this dismissal, raising five issues on appeal:

1. Whether Belk was tried for a felony without being properly indicted;
2. Whether the indictment was fatally flawed;
3. Whether the trial court erred by allowing the State to proceed under the amended indictment;
4. Whether Belk was innocent of the crime charged under the original indictment; and
5. Whether Belk received ineffective assistance of counsel.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 5, 2005, Belk was indicted for one count of the sale of cocaine and one count of the sale of marijuana. The State made a handwritten amendment to the indictment, which alleged that Belk sold the drugs to Debra Cunningham.

¶ 3. On July 11, 2006, during the guilty plea proceeding, Belk admitted that he sold drugs to Cunningham and entered a guilty plea to the sale of cocaine charge. The trial court found that Belk made a knowing and voluntary guilty plea. Although he had a prior felony conviction for possession of cocaine, the State did not pursue an enhanced penalty. The trial court sentenced Belk to serve ten years in the custody of the MDOC.

¶ 4. On December 28, 2007, Belk filed a petition for post-conviction relief, raising several claims regarding the indictment and ineffective assistance of counsel. The trial court found that Belk’s petition for post-conviction relief was without merit and dismissed the petition. Aggrieved, Belk timely filed this appeal.

ANALYSIS

¶ 5. This Court will not disturb a trial court’s dismissal of a petition for post-conviction relief unless the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Indictment

¶ 6. Belk raises four issues regarding his indictment. For the sake of judicial efficiency, we will address the merits of these claims together.

¶ 7. First, Belk argues that the State illegally amended the indictment after it was presented to the grand jury by adding Cunningham’s name to the indictment, identifying her as the buyer of the drugs. Second, Belk argues that the trial court erred by allowing the State to proceed under the amended indictment. Third, Belk contends that Cunningham’s name was an essential element of the crime charged, and since her name was not included in the original indictment, the original indictment was fatally defective. Last, because the original indictment failed to identify the buyer of the drugs, Belk maintains that he was innocent of the crimes charged under the original indictment.

¶ 8. The law is clear that an indictment may not be amended if the amendment is one of substance, changing the nature of the charge, except by action of the grand jury. Harris v. State, 907 So.2d 972, 978(22) (Miss.Ct.App.2005) (citing Greenlee v. State, 725 So.2d 816, 821(10) (Miss.1998)). However, an indictment may be amended if the amendment is simply to the form of the indictment, and the defendant will not be prejudiced by the amendment. Id. Thus, we must determine if adding Cunningham’s name to the indictment changed the substance of the indictment or was merely a change to the form of the indictment.

¶ 9. It is imperative that an indictment contain the essential elements of the crime with which the accused is charged. See McCollum v. State, 785 So.2d 279, 283(11) (Miss.2001). Belk was indicted pursuant to Mississippi Code Annotated section 41-29-139(a)(l) (Rev.2005), which prohibits any person from knowingly or intentionally selling a controlled substance. The statute does not list the identity of the purchaser of the drugs as an essential element of the crime. In fact, the supreme court has held that “[t]he identity of the person to whom the drugs were sold does not change the essence of the offense, since such identity is not an element of the offense.” Jones v. State, 912 So.2d 973, 976(10) (Miss.2005).

¶ 10. Thus, it is clear that Cunningham’s name is not an essential element of the offense. Therefore, the failure to include Cunningham’s name in the original indictment did not make the indictment fatally defective. Belk maintains that he would have been innocent under the original indictment because it failed to identify Cunningham as the purchaser. However, since the identity of the purchaser of the drugs is not an essential element of the crime, Belk’s argument lacks logic.

¶ 11. The trial court found that the indictment was amended before the grand jury foreman signed the indictment, and we can find no evidence to the contrary. We also find that the amendment to the indictment was simply one of form and, thus, allowable. The indictment was properly amended, and the trial court did not err by allowing the State to proceed under the amended indictment. Belk’s assignments of error are wholly without merit.

II. Ineffective Assistance of Counsel

¶ 12. There is a rebuttable presumption that counsel performed within the accepted range of competence for a criminal attorney. Baldwin v. State, 923 So.2d 218, 222(12) (Miss.Ct.App.2005) (citing Chase v. State, 699 So.2d 521, 526(3) (Miss.1997)). To succeed on a claim of ineffective assistance of counsel, the defendant must prove that counsel’s performance was deficient, and that this deficiency was prejudicial to his defense. Brooks v. State, 953 So.2d 291, 294(10) (Miss.Ct.App.2007) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶ 13. Belk argues that his trial counsel was ineffective because he failed to move to dismiss the original indictment, which did not include Cunningham’s name. In the previous assignment of error, we held that Cunningham’s name was not an essential element of the offense and did not have to be included in the indictment. We also held that the amendment to include Cunningham’s name in the indictment was simply one of form and was, therefore, allowable. Thus, we find that Belk’s argument that his trial counsel was ineffective because he failed to request dismissal of the indictment is without merit.

¶ 14. Next, Belk argues that his trial counsel failed to interview potential witnesses and failed to provide Belk with discovery materials. When petitioners allege such, Mississippi Code Annotated section 99-39-9(l)(e) (Rev.2007) requires that the petitioner shall attach “[ajffidavits of the witnesses who will testify and copies of documents or records that will be offered .... ” Belk failed to provide the names of the alleged witnesses that his trial counsel failed to interview, nor did he provide their affidavits as a summary of their anticipated testimony. Belk also failed to specify what discovery materials his trial counsel neglected to give him and how this prejudiced his defense.

¶ 15. We have found nothing in the record to suggest that his trial counsel’s performance was deficient, and Belk has failed to provide any evidence in support of his claim. Belk’s allegations of ineffective assistance of counsel consist solely of his bare allegations, and this is insufficient to pass the Strickland test. See, e.g., Wansley v. State, 798 So.2d 460, 465 (18-19) (Miss.2001). Thus, we find that the trial court did not err by dismissing Belk’s claim of ineffective assistance of counsel.

CONCLUSION

¶ 16. We find that Cunningham’s name was not an essential element of the crime of the sale of drugs, with which Belk was charged. Thus, it did not have to be included in the indictment. Further, the amendment to the indictment, which identified Cunningham as the purchaser of the drugs, was merely one of form and, thus, allowable. Therefore, the trial court did not err by allowing the State to proceed under the amended indictment. Belk’s argument that the indictment was fatally defective is without merit.

¶ 17. We also find that Belk’s bare allegations of ineffective assistance of counsel are insufficient to pass the Strickland test. Since Belk failed to provide any evidence to support his allegations, we find that the trial court did not err by dismissing his claim of ineffective assistance of counsel.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

■ LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


source: Caselaw Access Project

author: SEE, Justice. COBB, Chief Justice

license: Public Domain

text:
    Edwin L. EDWARDS, individually, and ELL 12, LLC, d/b/a Huntsville Kia v. KIA MOTORS OF AMERICA, INC.
    1061167.
    Supreme Court of Alabama.
    May 16, 2008.
    Rehearing Denied Oct. 24, 2008.

      Thomas E. Baddley, Jr., Jeffrey P. Mauro, and M. Jay Rhodes of Baddley & Mauro, LLC, Birmingham, for plaintiffs.
    Fournier J. Gale III and John A. Smyth III of Maynard Cooper & Gale, P.C., Birmingham, for defendant.
    Robert A. Huffaker and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae Automobile Dealers Association of Alabama, Inc., and National Automobile Dealers Association, in support of the plaintiffs.
   SEE, Justice.

This case is before us on a certified question from the United States Court of Appeals for the Eleventh Circuit. .Edwin L. Edwards, individually, and ELL 12, LLC, d/b/a Huntsville Kia (hereinafter referred to collectively as “Edwards”), sued Kia Motors of America, Inc. (“KMA”), in federal court, alleging violations of the Alabama Motor Vehicle Franchise Act, § 8-20-1 et seq., Ala.Code 1975 (“the Franchise Act”). Pursuant to Rule 18, Ala. R.App. P., the federal court has certified the following question to this Court:

“[W]hether the Franchise Act permits an automobile dealer to bring a claim under the Act, despite the fact that both parties already executed a mutual release agreement in which the dealer relinquished all existing legal claims against the manufacturer in exchange for valid consideration.”

We answer that question in the negative.

Facts and Procedural History

In 2002, Edwards purchased a struggling Kia dealership in Huntsville, with the understanding that KMA would later award Edwards a dealership franchise in Opelika and find a buyer for the Huntsville dealership. However, over the next two years, contractual disputes developed between Edwards and KMA regarding inventory shipments and payments for warranty services and dealer incentives. The Huntsville dealership continued to lose money, and, with no indication that KMA would award Edwards the Opelika dealership, Edwards sought a buyer for the Huntsville dealership. In 2004, Edwards, who had suffered continued losses, found a potential buyer for the Huntsville dealership. Pursuant to the dealership agreement between Edwards and KMA, Edwards was required to secure KMA’s approval before transferring the dealership to any buyer. When Edwards asked for KMA’s approval for the sale, KMA asked Edwards to sign a “Mutual Release Agreement,” which provided that the parties agreed to

“release, acquit and forever discharge one another of and from all claims which have arisen or may ever arise, demands and causes of action arising from, related to, or in any manner connected with the sale and service of Kia Products, including, without limitation, the Dealer Agreement, and from any and all claims for damages, related to or in any manner connected with the Dealer Agreement or the parties’ business relationship _”

Edwards states that, with the deadline for closing the sale of the Huntsville dealership approaching, Edwards was afraid that KMA would not approve the sale if Edwards refused to sign the release. In December 2004, Edwards signed the release and, thereafter, completed the sale of the Huntsville dealership.

In July 2005, Edwards brought the underlying action in the federal district court, alleging violations of the Franchise Act and asserting other common-law claims. KMA moved for a partial summary judgment on those claims KMA argued were barred by the release. The court entered a summary judgment in favor of KMA on those claims, and Edwards appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the judgment in part and then certified to this Court this question of statutory interpretation of the Franchise Act.

Analysis

The sole issue before us is whether the language of § 8-20-11, Ala.Code 1975, and the remedial purpose of the Franchise Act permit automobile dealers to bring claims under the Franchise Act against automobile manufacturers after they have executed a mutual release of, among other claims, those then existing claims. Section 8-20-11 reads as follows:

“Notwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver, and notwithstanding any other legal remedies available, any person who is injured in his business or property by a violation of this chapter by the commission of any unfair and deceptive trade practices, or because he refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of this chapter, may bring a civil action in a court of competent jurisdiction in this state to enjoin further violations, to recover the damages sustained by him together with the costs of the suit, including a reasonable attorney’s fee.”

Edwards argues that § 8-20-11 is a remedial statute that must be interpreted broadly and that the release agreement Edwards and KMA signed thus falls within the statutory meaning of “any waiver.” Edwards further argues that a broad interpretation of the phrase “any waiver” creates an exception for both prospective releases — those dealing with issues that have not arisen at the time the release is executed — and retrospective releases— those dealing with issues known or accrued at the time the release is executed. Therefore, Edwards argues, it should be able to bring its claims notwithstanding the mutual release agreement it entered into with KMA.

KMA argues in response that retrospective releases are favored under general Alabama law and under the Franchise Act in particular. KMA further asserts that § 8-20-11, Ala.Code 1975, does not encompass retrospective releases of existing claims and alleges that a construction of the Franchise Act that allows parties to bring an action under the Act despite having executed a mutual retrospective release would foster an absurd result.

After a review of the question certified to us by the United States Court of Appeals for the Eleventh Circuit and an examination of the arguments of the parties, it appears that the dispositive issue is whether the legislature intended the term “any waiver” in § 8-20-11, Ala.Code 1975, to apply to the type of mutual release agreement at issue here, or, in other words, whether the legislature intended § 8-20-11 to apply so broadly as to preclude parties subject to the Franchise Act ixom reaching any form of binding agreement by which then existing, ripe claims could be mutually settled without resort to a judicial determination of the claim.

“This Court has held that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting a statute.... If possible, a court should gather the legislative intent from the language of the statute itself.... The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage.”

Norfolk S. Ry. v. Johnson, 740 So.2d 392, 396 (Ala.1999). We first look to the language of the statute. Although the Franchise Act, in § 8-20-3, Ala.Code 1975, defines 13 terms, neither “waiver” nor “release” appears in that definitional section.

In § 8-20-2, Ala.Code 1975, the legislature expressed its intent in enacting the Franchise Act:

“The legislature finds and declares that the distribution and sale of motor vehicles within this state vitally affect the general economy of the state and the public interest and the public welfare, and that in order to promote the public interest and the public welfare, and in the exercise of its police power, it is necessary to regulate motor vehicle manufacturers, distributors, dealers, and their representatives and to regulate the dealings between manufacturers and distributors or wholesalers and their dealers in order to prevent fraud and other abuses upon the citizens of this state and to protect and preserve the investments and properties of the citizens of this state.”

“The purpose of the [Franchise] Act is clear. It is to protect the state’s citizens from abuses by motor vehicle manufacturers and dealers, and, to that end, to regulate manufacturers and dealers and the dealings between manufacturers and their dealers.” Sutherlin Toyota, Inc. v. Toyota Motor Sales USA, Inc., 549 So.2d 460, 461 (1989). We have stated that the purpose of the Franchise Act is “to give balance to the inequality of bargaining power between individual dealers and their manufacturers.” Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So.2d 883, 887 (1989). The Franchise Act proscribes certain practices, such as persuading dealers to absolve the manufacturer from liability arising from the unfair trade practices enumerated in the Franchise Act. However, there is no indication of a legislative intent to prohibit the parties to an automobile-dealership franchise agreement from reaching a good-faith settlement of existing claims after those claims arise and entering into a binding settlement agreement.

Section 8-20-11, Ala.Code 1975, authorizes the dealer or the manufacturer to bring a civil action notwithstanding the terms of the dealership agreements, franchise agreements, or waivers, and notwithstanding the availability of other legal remedies. However, there is no indication that § 8-20-11 does or was intended to prohibit the settlement of known claims as an alternative to taking them to trial and ultimately to judgment. If the legislature had wished to include the settlement and release of known claims in the language of § 8-20-11, Ala.Code 1975, it knew how to do so. The legislature lists prospective releases and waivers in describing specific unfair trade practices under the Franchise Act:

“[T]he following acts or conduct shall constitute unfair and deceptive trade practices:
“(3) For any manufacturer, factory branch, factory representative, distributor, or wholesaler, distributor branch or distributor representative:
“(m) To prospectively assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from any liability or obligation under this chapter or to require any controversy between a new motor vehicle dealer and a manufacturer to be referred to any person other than the duly constituted courts of this state or the United States, if the referral would be binding on the new motor vehicle dealer .... ”

§ 8-20-4(3)(m), Ala.Code 1975. The legislature did not similarly include a retrospective release as an unfair trade practice or include such a release in its list of ineffective provisions in § 8-20-11. Had the legislature meant to require the litigation of every disagreement between a manufacturer and a dealer, it could have said so.

We have read the disputed language of § 8-20-11 of the Franchise Act in the context of the entire Act. The dissent takes issue with our decision to do so. It criticizes this Court for not looking at the language of the provision in isolation, at what the dissent calls the “very plain language” of the phrase “any waiver.” The dissent notes that the parties have “ ‘conceded that the terms “waiver” and “release” can be synonymous.’” 8 So.3d at 284 (quoting Edwards v. Kia Motors of America, Inc., 486 F.3d 1229, 1233 (11th Cir.2007)) (emphasis added). Apparently, because there exists a context in which the two terms can be used synonymously, the dissent would have this Court not inquire whether, in the context of the Franchise Act, the legislature intended the terms to be synonymous. This, the dissent would have us believe, is what is meant by “plain meaning.”

This Court recently stated:

“Our inquiry is governed by settled principles of statutory construction:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).” ’ ”

Bright v. Calhoun, 988 So.2d 492, 497 (Ala. 2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979)). “Because the meaning of statutory language depends on context, a statute is to be read as a whole.” Ex parte Jackson 614 So.2d 405, 406 (Ala.1993). In determining legislative intent our interpretation of the statutory language in § 8-20-11, therefore, must be guided by the Franchise Act as a whole, instead of simply accepting as exclusive and inevitable the possible meaning of two isolated words outside this or any other particular context. “ ‘ “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” ’ ” Parker v. State, 648 So.2d 653, 657 (Ala.Crim.App.1994) (quoting Lowe v. State, 54 Ala.App. 280, 284-85, 307 So.2d 86, 90 (1974) (Cates, J., concurring specially), quoting in turn Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372 (1918)). We decline to ignore the legislative intent expressed in the Franchise Act as a whole in favor of an isolated interpretation of the phrase “any waiver” that is required to produce the result the dissent would have us reach.

Conclusion

The remedial purpose of the Franchise Act is to address unfair trade practices between automobile manufacturers and automobile dealers in the State of Alabama. Section 8-20-11, Ala.Code 1975, protects both parties by prohibiting either from exempting its conduct from the requirements of the Franchise Act. It does not, however, render unenforceable the settlement and release of existing claims. We, therefore, answer the federal court’s question in the negative.

QUESTION ANSWERED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I dissent. The term “judicial activism” is susceptible to many meanings; it has been referred to as a “notoriously slippery term.” Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism? 73 U. Colo. L.Rev. 1401 (2002). However, as this Court discusses the term in the context of the review of substantive law or statutes, see, e.g., Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371 (Ala.1999), it implies a willingness on the part of the Court to invade, improperly, the province of the legislature by refusing to apply the plain meaning of the statute before us in favor of substituting language and meaning that are not otherwise present. Thus, the Court becomes a sort of “superlegislature” that imposes its particular agenda on the citizens of our State without the benefit of the usual legislative process. Certainly this is a bad thing. Not only does the Court disregard its obligations under the state and federal constitutions, but it also demonstrates an abandonment of principles that are absolutely critical to an effective system of justice. “Our system relies for its validity on the confidence of society; without a belief by the people that the system is just and impartial, the concept of the rule of law cannot survive.” People ex rel. Clancy v. Superior Court of Riverside County, 39 Cal.3d 740, 746, 705 P.2d 347, 351, 218 Cal.Rptr. 24, 28 (1985).

When judicial activism is understood as the willingness of this Court to improperly substitute itself for the legislature, this case presents a picture of judicial activism that is worth a thousand words. Section 8-20-11, Ala.Code 1975, states:

“Notwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver, and notwithstanding any other legal remedies available, any person who is injured in his business or property by a violation of this chapter by the commission of any unfair and deceptive trade practices, or because he refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of this chapter, may bring a civil action in a court of competent jurisdiction in this state to enjoin further violations, to recover the damages sustained by him together with the costs of the suit, including a reasonable attorney’s fee.”

(Emphasis added.) In addition to this very plain language, this Court has also discussed the legislature’s purpose in enacting the Franchise Act as “to give balance to the inequality of bargaining power between individual dealers and their manufacturers.” Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So.2d 883, 887 (Ala.l989)(emphasis added). That is, automobile dealers in this State are to receive some protection from the inequality of bargaining power that exists in their transactions with automobile manufacturers by having their claims of violations under the Franchise Act preserved for judicial adjudication, regardless of contractual releases or waivers the dealers may be compelled to sign in order to do business.

That purpose is directly applicable to this case, a situation in which an automobile dealer has been pressured into signing a release in order to effectively transact business with a much more powerful automobile manufacturer. Here, as a result of the manufacturer’s unfulfilled promises, Edwards had the choice of executing the release or suffering financial ruin, essentially a choice “between a rock and a hard place.” In spite of the facts presented here, and in spite of the plain language of § 8-20-11 and this Court’s previous statements of law concerning the legislature’s intent as stated in § 8-20-2, the majority opinion embarks on a semantic voyage to ascertain the legislature’s “intent” by attempting to parse a meaningful distinction between concepts of “release” and “waiver,” a distinction the parties have conceded does not exist. See Edwards v. Kia Motors of America, Inc., 486 F.3d 1229, 1233 (11th. Cir.2007) (“[Djuring oral argument, both parties conceded that the terms ‘waiver’ and ‘release’ can be synonymous.”). The result of the majority’s analysis is a conclusion that the emphasized language quoted above from § 8-20-11 does not mean what it says it means. Because I cannot, on any reasonable reading of the above statutory language — particularly in light of the legislative purpose in enacting the Franchise Act — conclude that it means other than what it says, I must conclude that the release agreement does not bar Edwards’s action. In short, the majority opinion rewrites § 8-20-11 to say that certain releases and waivers do in fact operate to prevent a dealer from bringing a claim under the Franchise Act in the courts of our State. Not only does the opinion “relegislate” § 8-20-11, but it also obviates the legislature’s intent as expressed in § 8-20-2 and Tittle, supra, so as to remove the protections in the Franchise Act from the inequality in bargaining power that exists between dealers and manufacturers.

In the past, this Court operated under a duty to adhere to legal precedent without regard to the outcome of the case, and it consistently concluded that the plain language of a statute required that this Court apply the language as stated. The rule has generally been stated as follows:

“ ‘When [a] statutory pronouncement is clear and not susceptible to a different interpretation, it is the paramount judicial duty of a court to abide by that clear pronouncement.’ ”

Macon v. Huntsville Utils., 613 So.2d 318, 320 (Ala.1992) (quoting Parker v. Hilliard, 567 So.2d 1343, 1346 (Ala.1990)). This rule has found application even in the recent past. See, e.g., Bright v. Calhoun, 988 So.2d 492, 498 (Ala.2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074 (Ala.2006) (“ ‘To discern the legislative intent [for purposes of statutory construction], the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction.’ ”)); Boutwell v. State, 988 So.2d 1015, 1020 (Ala.2007) (“ ‘[Principles of statutory construction instruct this Court to interpret the plain language of [the] statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.’ Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001).”); Cleburne County Comm’n v. Norton, 979 So.2d 766, 773 (Ala. 2007)(“ ‘ “ ‘Words used in a 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. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’ ” (quoting Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006), quoting in turn Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), quoting in turn IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))). I believe that the majority opinion flies in the face of this precedent and the many other cases that have espoused the principle that this Court’s paramount duty is to interpret the plain language of the law to mean what it says.

With respect to the contention that giving effect to the plain language of § 8-20-11 means that no preexisting claim can ever be settled, it is more accurate to say that giving effect to the plain language of the statute means that a manufacturer may not by weight of its greater bargaining position in compelling a franchise agreement force a dealer to give up its right to adjudicate its claims of violations of the Franchise Act. Claims may still be settled by adjudication and settlement, and claims may be forestalled by honest business practices that do not give rise to violations of the Franchise Act. The statute says what it says. Had the legislature intended to except the release of known claims from the operation of § 8-20-11, it could have done so. The plain language of the statute permits litigation alleging an unfair trade practice notwithstanding pri- or agreements. This language may not be convenient for an entity that is stronger economically and that seeks to force a weaker one into compliance with its terms by allowing a release of known claims in the context of contract negotiations, but I submit that disregarding the language and intent of the Franchise Act is the antithesis of the “strict construction” to which judicial “conservatives” give lip service. Rather, rewriting § 8-20-11 and discarding the intent of the legislature represents judicial activism, which this Court should never endorse. Because I believe that a consistent application of this Court’s principles of statutory construction is a critical component of American justice and of this Court’s credibility as an agent of that justice, I must dissent.

      . The amici curiae brief filed by the Automobile Dealers Association of Alabama, Inc., and the National Automobile Dealers Association argues that the issue is, instead, whether the Franchise Act "encompasses retrospective releases of liability that were not the result of a good faith settlement of a bona-fide legal dispute and were not supported by adequate consideration." Amici brief at 2. However, the Eleventh Circuit Court of Appeals has not asked us to determine whether the settlement was negotiated in good faith and supported by adequate consideration, nor have the parties made this argument in their briefs.

      . The statute does not distinguish between the dealer and the manufacturer in its definition of "[any] person.” § 8-20-3(12), Ala.Code 1975. Therefore, under Edwards’s theory, the manufacturer would likewise be free to sue the dealer, notwithstanding that the dealer had undertaken substantial obligations in settlement of a manufacturer's claim against the dealer under the Franchise Act.

      . KMA bases its argument on the general law of Alabama on § 12-21-109, Ala.Code 1975: "All receipts, releases and discharges in writing, whether of a debt of record, a contract under seal or otherwise, and all judgments entered pursuant to pro tanto settlements, must have effect according to their terms and the intentions of the parties thereto.” KMA argues that based on this statute, the release should be enforced according to its terms. However, we have held: "Pursuant to the principle that statutes dealing with the same subject should be read in pari materia, statutes should be construed together so as to harmonize them as much as practical, and, in the event of a conflict, a specific statute relating to a specific subject will prevail over a general statute relating to a broad subject." Peebles v. Mooresville Town Council, 985 So.2d 388, 394 n. 5 (Ala.2007) (citing Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991)). To the extent that the Franchise Act and § 12-21-109, Ala.Code 1975, might both apply to a release that, as in this case, is a transaction between an automobile dealer and an automobile manufacturer, the specific provisions of the Franchise Act control over the general provisions of § 12-21-109, Ala. Code 1975.

      . As the Eleventh Circuit Court of Appeals indicates in its opinion affirming the partial summary judgment in part, the few instances of caselaw from other jurisdictions dealing with this issue are inapposite because of specific provisions in the statutes at issue in those cases that provide for the recognition of retrospective releases. Edwards v. Kia Motors of America, Inc., 486 F.3d 1229, 1235 (11th Cir.2007) (citing Sportique Motors, Ltd. v. Jaguar Cars, Inc., 195 F.Supp.2d 390, 397-98 (E.D.N.Y.2002) ("Further, [the plaintiffs] were businessmen, represented by counsel, advised of the need for the Release well before the execution thereof, and had the option to invoke [a section] of the Dealer Agreement and except the warranty reimbursement claims from the Release."), and Schmitt-Norton Ford, Inc. v. Ford Motor Co., 524 F.Supp. 1099, 1105 (D.Minn.1981) ("The state regulations adopted under the statute clearly allow good faith settlement of disputes: ‘Nothing herein shall be construed to limit or prohibit good faith settlements of disputes when such settlements are voluntarily entered into between the parties.’ Minn.Reg.S.Div. 1718 (1976). Nothing in the provisions cited by the plaintiffs prevents settlement for past causes of action; the statute is aimed at prospective waivers of rights.")).

      .Although the Franchise Act does not define "waiver,” it is a well-settled principle of Alabama law that a " '[wjaiver is generally defined as the intentional relinquishment of a known right.' Bell v. Birmingham Broad. Co., 263 Ala. 355, 357, 82 So.2d 345, 347 (1955).” Ernst & Young, LLP v. Tucker, 940 So.2d 269, 288 (Ala.2006) (See, J., concurring specially).

      . This Court has stated that "[a] release is a contract and must be supported by a lawful and valuable consideration; and, if not supported by a lawful consideration, is nudum pactum. Brown v. Lowndes County, 201 Ala. 437, 78 So. 815, 817.” Hamilton v. Edmundson, 235 Ala. 97, 101, 177 So. 743, 746 (1937).

      . The implication in the dissent is that the Franchise Act should be read to operate against the manufacturer and in favor of the dealer and that it is the duty of this Court to enforce such an application in favor of the one and against the other class of parties. It is instead the duty of this Court to apply the law as it is written, regardless of the identity of the parties, "dispassionately approach[ing] the issues on their merits, as we are required by oath to do." Kaylor v. State, 782 So.2d 206, 211 (Ala.2000). The language of § 8-20-11, Ala.Code 1975, that must guide us in our decision applies, as we remark in note 2, to “any person [whether manufacturer or dealer] who is injured in his business or property by a violation of this chapter by the commission of any unfair and deceptive trade practices -” (Emphasis added.) The remedies provided by the Franchise Act are thus available to the manufacturer for the dealer's unfair or deceptive trade practices delineated in § 8-20-4(2) and to the dealer for the manufacturer’s unfair or deceptive trade practices delineated in § 8-20-4(1). If the one is bound, the other is also; if the one is not bound, neither is the other.

      . See also Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism," 92 Cal. L.Rev. 1441 (2004).


author: SMITH, Justice.

text:
    Walter M. JAMES and Allen K. James v. James W. RANE.
    1061222.
    Supreme Court of Alabama.
    Oct. 17, 2008.
    W. Kendrick James, Wetumpka, for appellants.
    Kenneth A. Dowdy of Lusk, Lusk, Dowdy & Caldwell, P.C., Birmingham, for ap-pellee.
   SMITH, Justice.

The plaintiffs below, Walter M. James and Allen K. James, appeal, an order of the trial court granting a motion to dismiss filed by the defendant, James W. Rane. We dismiss the appeal.

In 1999, the Jameses sued Rane, seeking a declaration as to the ownership of certain parcels of property located in Henry County. Both the Jameses and Rane claimed title to the property. Rane filed an answer to the complaint.

In September 2004, the trial court dismissed the case for lack of action. The Jameses retained new counsel, and the case was reinstated. In January 2007, the Jameses filed an amendment to their original complaint adding fictitiously named defendants and asserting new causes of action. As amended, the complaint sought a declaratory judgment (counts I through III) and damages for trespass (count IV), trespass to chattel (count V), “unlawful cutting of trees” (count VI), negligence (count VII), wantonness (count VIII), infliction of emotional distress (count IX), and the tort of outrage (count X).

On February 21, 2007, Rane filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking the dismissal of counts VII through X of the complaint for failure to state a claim. The motion conceded that counts IV, V, and VI stated a claim but sought, pursuant to Rule 12(e), Ala. R. Civ. P., an order requiring the Jameses to provide a more definite statement regarding those counts.

The Jameses replied to the motion to dismiss and also filed a statement providing additional factual and legal arguments regarding the claims stated in the amended complaint. On February 26, 2007, the trial court entered an order stating: “Motion to dismiss pursuant to Rule 12(b) filed by [Rane] is hereby granted. [The James-es have] fourteen days to respond to [Rane’s] motion to dismiss.” Additionally, the following entry appeared on the case-action summary: “E-filed order giving [the Jameses] 14 days to respond and motion to dismiss granted.”

On March 12, 2007, the Jameses filed a motion “to reconsider and/or reinstate, or in the alternative, motion to alter, amend or vacate.” In it, the Jameses contended that their counsel did not receive notice of the trial court’s order until March 9, 2007. The motion requested the trial court to set aside its dismissal or, alternatively, to allow the Jameses 14 days from March 9, 2007, to respond to Rane’s motion.

A hearing on the Jameses’ motion was scheduled; however, the trial court denied the motion before the hearing was to take place. The Jameses then filed a notice of appeal. This Court ordered appellate mediation, which was unsuccessful.

On appeal, the Jameses appear to contend that the trial court dismissed all of their claims against Rane. The Jameses state: “[T]he trial court summarily dismissed the [Jameses’] entire case.” Jameses’ brief at 2. Although the Jameses do not contest the dismissal of counts VII, VIII, IX, and X, they offer numerous grounds to demonstrate that the trial court should not have dismissed the remaining counts I through VI.

After reviewing the record, we conclude that, contrary to the Jameses’ premise, the trial court did not dismiss counts I through VI of the complaint. Rane’s motion, which was titled “Combined Motion to Dismiss and Motion for Definitive Statement,” sought a dismissal of only counts VII, VIII, IX, and X. As to the counts IV, V, and VI, Rane sought only an order requiring a more definite statement. The declaratory-judgment counts are not even mentioned in Rane’s motion. The motion thus concludes:

“Counts Seven, Eight, Nine and Ten of the [Jameses’] Amended Complaint, which allege negligence, wantonness, intentional infliction of emotional distress and outrage, fail to state a claim upon which relief can be granted; therefore, these claims should be dismissed pursuant to Rule 12(b)(6) of the Alabama Rules of Civil Procedure as a matter of law....
“Moreover, with respect to Counts Four, Five and Six of the [Jameses’] Amended Complaint which allege trespass, trespass to chattels and unlawful cutting of trees and shrubs, the [James-es] should provide a more definite statement pursuant to Rule 12(e) of the Alabama Rules of Civil Procedure. These counts do not allege with sufficient specificity the alleged facts and allegations against [Rane] to allow [Rane] the ability to properly investígate and respond to these allegations.”

The trial court’s order appears to grant Rane’s motion in its entirety: “Motion to dismiss pursuant to Rule 12(b) filed by [Rane] is hereby granted. [The Jameses have] fourteen days to respond to [Rane’s] motion to dismiss.” The case-action-summary entry is slightly different: “E-filed order giving [the Jameses] 14 days to respond and motion to dismiss granted.” Although not models of clarity, the trial court’s orders indicate that Rane’s motion to dismiss, which requested the dismissal of only some claims, was granted; as to the motion for a more definite statement, it appears that the trial court granted that motion as well and required the Jameses to respond in 14 days.

Because Rane requested a dismissal of only counts VII, VIII, IX, and X, only those claims were properly before the trial court on the motion to dismiss. Cf. Baugus v. City of Florence, 968 So.2d 529 (Ala.2007); Robinson v. JMIC Life Ins. Co., 697 So.2d 461, 461 (Ala.1997) (“[W]e note that the trial court’s judgments adjudicated all of Robinson’s claims. This was error, because the defendants had sought summary judgments only as to the fraudulent suppression claim.”). Thus, only counts VII, VIII, IX, and X of the complaint were dismissed; the remaining counts, including the original counts seeking a declaratory judgment, which were not even mentioned in Rane’s motion, remain pending in the trial court.

“The general rule is that a trial court’s order is not final unless it disposes of all claims as to all parties.” Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala.2002) (citing Rule 54(b), Ala. R. Civ. P.). “For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). ‘[Wjithout a final judgment, this Court is without jurisdiction to hear an appeal.’ Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).” Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006).

Because counts I through VI remain pending below, the trial court’s order dismissing part of the Jameses’ case is a nonfinal judgment. Thus, this Court does not have jurisdiction, and we must dismiss this appeal. Horn v. Brown, 4 So.3d 1106 (Ala.2008).

APPEAL DISMISSED.

COBB, C.J., and SEE, WOODALL, and MURDOCK, JJ., concur.


author: STUART, Justice.

text:
    Chandrakant CHOKSI v. Manan SHAH and Jankhana Shah.
    1070769.
    Supreme Court of Alabama.
    Oct. 17, 2008.

      Fulton S. Hamilton, Huntsville; and John A. Brinkley, Jr., of Brinkley & Chestnut, Huntsville, for appellant.
    Donald L. Christian, Jr., Huntsville; Scott P. Hooker of Austill, Lewis & Pipkin, Birmingham; Parker Edmiston, Scotts-boro; and G. Douglas Benson, Scottsboro, for appellees.
   STUART, Justice.

Manan Shah and Jankhana Shah sued Chandrakant Choksi in the Jackson Circuit Court after Choksi failed to fulfill the terms of a settlement agreement he had entered into with the Shahs that required him to pay them $800,000. After a trial, the jury returned a verdict in favor of the Shahs, awarding them $800,000. The trial court subsequently entered a judgment on that verdict, adding to the amount an additional $110,729 for prejudgment interest. We affirm.

I.

The defendant, Choksi, owns and leases multiple gasoline service stations and convenience stores in north Alabama and surrounding states. Sometime in 2000 or 2001, a mutual friend introduced Choksi to Manan Shah, and Choksi subsequently hired Manan to work at a gas station and convenience store in Madison. In November 2003, Choksi transferred Manan to a different gas station and convenience store in Scottsboro (hereinafter referred to as “The Pantry”). In May 2004, Manan entered into an agreement with Choksi pursuant to which Manan would lease The Pantry from Choksi and operate it. During this same period, Manan also operated another gas station in the same immediate area, Hi-Tech Fuel, which was not owned by Choksi.

On occasion, Jankhana Shah, Manan’s wife, would work at The Pantry when Ma-nan had to leave to tend to Hi-Tech Fuel or to take care of other business. One day in October 2004, Jankhana was working at The Pantry when Choksi stopped by to collect the monthly lease payment. Jank-hana alleges that, while he was in the store, Choksi grabbed, touched, and attempted to kiss her. Jankhana did not tell Manan about Choksi’s behavior at that time; however, after Choksi behaved in a similar manner when he came to pick up the next month’s lease payment, Jankhana told Manan what had occurred.

Manan thereafter purchased an audio-video recording surveillance system and, with the help of a friend Bipin Patel, who operated a gas station in Fort Payne and who was also a business associate of Chok-si’s, installed the recording system in the ceding of The Pantry. On December 26, 2004, Choksi went to The Pantry to collect the December lease payment. Choksi again attempted to hug, touch, and kiss Jankhana, at one point even trying to pull her into a closet. Unbeknownst to him, however, the recording system captured the entire episode on tape.

On December 29, Manan contacted Choksi and told him he had a videotape of Choksi harassing his wife during his visit to The Pantry on December 26. Manan also told Choksi that he was terminating his lease of The Pantry and that Choksi should come and pick up the keys. Choksi subsequently traveled to The Pantry, and, once he arrived, Patel, who was also there, took him outside and showed him several still photographs that had been extracted from the videotape. Choksi then agreed to let Manan terminate the lease but asked him to continue operating The Pantry until Choksi could find another tenant. Manan agreed to do so and continued operating The Pantry until January 15, 2005.

On January 20, 2005, Manan and Choksi met at the office of the Alcoholic Beverage Control Board in Huntsville to transfer The Pantry’s permit to sell alcohol from Manan to Choksi. After doing so, Manan and Choksi had a conversation in Choksi’s automobile during which Choksi expressed concern about his family’s reaction to the incidents with Jankhana and offered to let Manan operate one of his gas stations and convenience stores for five years rent free. Their conversation ended, however, when Manan told Choksi that he had retained an attorney and that he was going to sue Choksi for $1 million. Feeling that he was being blackmailed, Choksi consulted an attorney the next day, who advised him to meet with the Alabama Bureau of Investigations (“ABI”)- Choksi subsequently met with an ABI investigator, as well as with representatives from the district attorney’s offices in both Jackson and De-Kalb Counties. Meanwhile, Choksi continued to negotiate with Manan, using Patel as an intermediary. Pursuant to instructions given him by the ABI, Choksi recorded many of the telephone calls between him and Patel.

On Saturday, February 12, 2005, Choksi and Manan met at Patel’s gas station in Fort Payne to formalize an agreement Patel had helped them reach. That agreement was memorialized in two separate handwritten contracts, both witnessed by Patel. The contract signed by Choksi reads as follows:

“Confession Note
“I, Chandrakant Choksi, resident of Huntsville, Alabama, aged 40 years, with God as my witness admit that I have insulted and hurt the self-respect of the wife of Mananbhai Shah, Jhankhana-ben, aged 23 years, and her husband Mananbhai by taking inappropriate liberties with her body at their store at the Shell Gas Station in Scottsboro. They possess video cassettes and photographs as a proof for this crime. As a retribution for bodily and mental damage and insult and also to protect the honor of my family and myself from going to police or to court, I have agreed with my own free will and according to Hindu religion law, to pay Mananbhai and his wife Jhankhanaben $800,000 with the help of my friend Bipinbhai K. Patel as an intermediary which is agreed upon by me and Mananbhai and Jhankhanaben. As soon as Mananbhai and Jhankhana-ben receive the compensation for this crime by May 30, 2005; they will be required to return all the cassettes and photographs to Chandrakant Choksi.
“After this contract, neither I, nor Mananbhai nor Jhankhanaben will have a right to file a case or sue for money or interfere in each other’s lives, which is agreed upon by me, Mananbhai and Jhankhanaben.”

The contract signed by Manan provided as follows:

“Contract
“I, Manan Shah, and my wife, Jhank-hana Shah, today, with God and Bipin-bhai Patel, my friend, as witness, agree that according to the contract by Chan-drakantbhai Choksi, that after accepting $800,000 as retribution, we or our family [has] no right to go to court for money or to the police station and no right to slander Chandrakantbhai Choksi in the society or in the family. Also, as soon as we receive the compensation we will be required to return all videos, CDs, photographs to Chandrakantbhai.”

After the contracts were completed, Chok-si gave Manan three postdated checks for $100,000, $50,000, and $50,000, as an initial payment.

On Monday, February 14, 2005, Choksi stopped payment on the three checks. He also arranged another meeting for that date with Manan at Patel’s gas station. Choksi led ABI agents to that meeting, and the agents subsequently questioned Manan and Patel; however, there is no evidence in the record indicating that the ABI took any action concerning the dispute. Choksi thereafter refused to pay Manan the $800,000, and, on March 23, 2005, the Shahs sued Choksi and his business, Hartselle Food Mart, Inc., in the Jackson Circuit Court alleging that Choksi had breached the settlement contract by refusing to pay them $800,000. Choksi filed an answer claiming, among other things, that he had signed the settlement contract under duress after being threatened, intimidated, and coerced.

On September 10, 2007, the Shahs’ case was called for a jury trial. Choksi and Hartselle Food Mart moved for a judgment as a matter of law at the conclusion of the Shahs’ case and at the close of all the evidence, but both motions were denied. On September 13, 2007, the jury returned a verdict in favor of the Shahs and against only Choksi for $800,000. The trial court entered a judgment on that verdict and subsequently added an additional $110,729 to the verdict for prejudgment interest. The Shahs subsequently moved the trial court to correct the judgment entered on the jury’s verdict to indicate that that judgment was against Hartselle Food Mart also. The trial court denied that motion. Choksi moved the trial court to alter, amend, or vacate its judgment or, in the alternative, to grant him a new trial; however, that motion was denied. On February 13, 2008, Choksi filed his notice of appeal with this Court. We then remanded the case to the trial court because of the outstanding claims against Hartselle Food Mart. On remand, the trial court dismissed those claims.

II.

“In discussing the standard of review in an appeal from a judgment based on a jury verdict where the trial court has denied a motion for a new trial, this Court has stated:
“ ‘ “Jury verdicts are presumed correct, and this presumption is strengthened by the trial court’s denial of a motion for a new trial. Therefore, a judgment based on a jury verdict will not be reversed unless it is ‘plainly and palpably’ wrong.” ’
“Tanksley v. Alabama Gas Corp., 568 So.2d 731, 734 (Ala.1990) (quoting Davis v. Ulin, 545 So.2d 14, 15 (Ala.1989)).”

Petty-Fitzmaurice v. Steen, 871 So.2d 771, 773 (Ala.2003).

III.

Choksi raises four issues on appeal. First, he argues that the Shahs’ claims against him are barred by statute because they are, he claims, essentially alienation-of-affection claims. In Bailey v. Faulkner, 940 So.2d 247 (Ala.2006), this Court recognized that § 6-5-331, Ala.Code 1975, which provides that “[t]here shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over,” abolished any claim for damages— no matter how those claims are denominated — based on allegations of interference with the marriage relationship. Choksi concludes that “[t]he claims asserted by one spouse against a third party who had become involved with the other spouse can only be classified as alienation of affection.” (Choksi’s brief, p. 25.)

Although Bailey accurately states the law, Choksi’s argument nonetheless fails because the only “involvement” Jankhana had with Choksi was as an unwilling victim of his assault; no evidence was submitted indicating that she welcomed his advances or that she consented to his touching her. This case is not about an aggrieved husband suing his wife’s paramour, see, e.g., Bailey and D.D. v. C.L.D., 600 So.2d 219 (Ala.1992); rather, it is about a husband and wife suing a third party who had assaulted the wife, who had preemptively agreed to settle to avoid legal action based on that assault, and who then allegedly had breached the terms of the settlement contract. Section 6-5-331 is irrelevant to such a case.

Choksi’s next two arguments concern whether the settlement contract is enforceable. He first argues that the writings signed by him and Manan do not form an enforceable contract because, he claims, he agreed to the settlement only after he was threatened with criminal prosecution, a civil lawsuit, and public humiliation. Accordingly, he argues, the settlement was the product of blackmail or extortion. Blackmail and extortion are prohibited by law, and, he argues, as a matter of public policy, contracts that result from either blackmail or extortion should not be enforced. Choksi cites Dickerson v. Deno, 770 So.2d 63 (Ala.2000), in support of his argument, a case in which this Court held that an alleged contract to share lottery winnings was unenforceable because it was, at its core, based on illegal gambling. Choksi also argues that the settlement contract should not be enforced because he entered into it only after being threatened and while he was under great duress. See Tidwell v. Tidwell, 505 So.2d 1236, 1238 (Ala.Civ.App.1987) (“Alabama recognizes that upon showing of duress or undue influence a party may be relieved of contractual obligations.”).

We cannot say, however, that the settlement contract entered into by Choksi was the product of blackmail or extortion. The jury heard Choksi’s testimony that he signed the contract only because he felt threatened:

“Q: Now, you eventually signed this document that has been marked as plaintiffs’ exhibit number three, which is written in Gujarati, is that correct?
“A: Yes, I signed it under duress.
“Q: Well, now, tell the ladies and gentlemen of the jury why you signed that document.
“A: I had that telephone conversation where he threatened me about, ‘if you don’t come, I will bring your partners and all of your employees into court on my side and you will be alone in court and I will ruin you with your family and I will ruin your business and I will ruin you in society and your church,’ which we call temple, ‘and I will send these documents,’ you know, the pictures and the videotapes, ‘and I will send to the Gujarati Times,’ which is our Indian community newspaper, ‘and I will send it to them and I will publish that.’ And also he told me that, ‘if you don’t pay me, I will do it my way.’ And those words I recorded on tape and that word hurt my feelings and threatened me like I’ve never been threatened like that.”

The jury heard this testimony, was charged by the trial court on the elements of the affirmative defense of duress, and, as evidenced by the verdict it returned, rejected it. Moreover,

“ ‘[i]t is the well-settled general rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. It is never duress to do that which a party has a legal right to do, and the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement.’ ”

Neuberger v. Preferred Acc. Ins. Co. of New York, 18 Ala.App. 72, 74, 89 So. 90, 92 (1921). Considering all the evidence adduced at trial, including the evidence indicating that Choksi was a sophisticated and educated businessman experienced in negotiating contracts, we cannot say that the verdict returned by the jury was plainly and palpably wrong.

Choksi’s final argument is that the Shahs cannot sue him based on a breach of the settlement contract when they have breached that settlement contract themselves. See, e.g., Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79, 82 (Ala.2000) (“A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.”). In his brief to this Court, Choksi states:

“The terms of the ‘settlement’ agreement stated that defendant Choksi would pay money to the [Shahs] and [the Shahs] in turn agreed that they would not disclose defendant Choksi’s actions nor disseminate the photographs of defendant Choksi’s acts to the public. [The Shahs’] trial testimony admitted that they repudiated the terms of this agreement with Choksi by making public disclosures of Choksi’s attempt to have sexual relations with Mrs. Shah by showing photographs of Choksi’s actions to numerous members of the public.”

(Choksi’s brief, p. 32.)

It is undisputed that Manan did discuss Choksi’s alleged assault of Jankha-na and that he did share photographs of that incident with other parties. However, contrary to Choksi’s assertion, that behavior did not violate the terms of the contract Manan signed. That contract provided only that “after accepting $800,000 as retribution, we or our family [has] no right to go to court for money or to the police station and no right to slander Chandra-kantbhai Choksi in the society or in the family.” Ignoring the fact that the Shahs never actually received $800,000, there is no evidence indicating that the Shahs in fact slandered Choksi. Manan may have showed the videotape and photographs extracted from the videotape to others; however, Choksi agreed at trial that “what is on the videotape is what occurred.” Slander is a form of defamation and “[t]ruth is an absolute defense to a defamation claim.” S.B. v. Saint James School, 959 So.2d 72, 100 (Ala.2006) (citing Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934 (Ala.1986)). There is no evidence indicating that the Shahs themselves breached the settlement contract.

IV.

The Shahs sued Choksi alleging breach of contract, and, after a jury trial, the jury returned a verdict in favor of the Shahs for $800,000. A judgment was subsequently entered on that verdict, and Choksi has failed to establish that that judgment was plainly and palpably wrong. Accordingly, that judgment is affirmed.

AFFIRMED.

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

      . At trial, Manan and Choksi each testified that the other had invited Patel to the meeting.

      . The contracts that were executed were written in the parties’ native language of Gujarati. The translations quoted here were provided by the defense, but Manan agreed at trial that the translations were correct in all material respects.

      3. The suffixes “bhai” (men) and "ben” (women) are honorifics sometimes added to names in Gujarat culture.

      . We note that our decision in Dickerson was based on § 8-1-150, Ala.Code 1975, which specifically provides that ''[a]ll contracts founded in whole or in part on a gambling consideration are void.”

      . Choksi has not argued to this Court that the term "slander,” as it is used in the contract executed by Manan, means anything other than its ordinary legal definition as explained here, that is, it requires the communication of a false and defamatory statement.


author: LYONS, Justice.

text:
    Ex parte BAMA CONCRETE and Terry Dewayne Edwards. (In re Michelle Washington Mims v. Bama Concrete and Terry Dewayne Edwards).
    1071376.
    Supreme Court of Alabama.
    Oct. 17, 2008.
    Clark Summerford of Zeanah, Hust, Summerford & Williamson, L.L.C., Tuscaloosa, for petitioners.
    Robert F. Prince and Joshua P. Hayes of Prince Glover Law, Tuscaloosa, for respondent.
   LYONS, Justice.

Bama Concrete (“Bama”) and Terry Dewayne Edwards, defendants in an action pending in the Greene Circuit Court, petition for a writ of mandamus directing the trial court to transfer the action to the Tuscaloosa Circuit Court on the basis of the doctrine of forum non conveniens. We grant the petition and issue the writ.

I. Factual Background

The underlying action arises out of an automobile accident in which a concrete truck driven by Edwards and owned by Bama collided with an automobile driven by Michelle Washington Mims. The accident occurred in Tuscaloosa County, approximately one mile from Bama’s office. Mims resides in Tuscaloosa County. The accident investigator, Tuscaloosa Police Department Officer John Huff, lives and works in Tuscaloosa County. All other witnesses to the accident live in Tuscaloosa County. Edwards resides in Greene County. The concrete truck being driven by Edwards was returning to Bama’s office from a delivery made in Tuscaloosa County. Mims’s medical treatment was administered in either Tuscaloosa County or Jefferson County.

After Mims filed her complaint in the Greene Circuit Court, Bama and Edwards filed a motion requesting a change of venue to the Tuscaloosa Circuit Court on the basis of the doctrine of forum non conve-niens. The motion was supported by, among other things, an affidavit from Edwards, who resides in Greene County, in which he stated: “It is my preference that this action be tried in Tuscaloosa County as it is more convenient with my work schedule.” In response to the motion for a change of venue, Mims contended that Edwards had been involved in several automobile accidents and had received several traffic citations in Greene County and stated that she intended to offer at trial the testimony or the depositions of the officers involved in each incident, who were in Greene County. The trial court denied the motion.

II. Standard of Review

In Ex parte Kane, 989 So.2d 509, 511 (Ala.2008), we stated the standard of review in a similar setting as follows:

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). A writ of mandamus is appropriate when the petitioner can demonstrate ‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (8) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion. Ex parte Fuller, 955 So.2d 414 (Ala.2006); Ex parte Verbena United Methodist Church, 953 So.2d 395 (Ala.2006). Our review is limited to only those facts that were before the trial court. Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).”

III.Analysis

Alabama’s forum non conveniens statute is set forth in § 6-3-21.1, Ala.Code 1975, and provides, in part, as follows:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. Provided, however, this section shall not apply to cases subject to Section 30-2-5 [not applicable on these facts].”

Venue for this case is proper in both Greene and Tuscaloosa Counties, so a transfer on the basis of forum non conve-niens is the only method by which Bama and Edwards can obtain a transfer of the case to the Tuscaloosa Circuit Court. A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, that the transfer is justified based either on the convenience of the parties and witnesses or in the “interest of justice.” Ex parte McKenzie Oil Co., [Ms. 1071011, August 22, 2008] — So.3d - (Ala.2008); Ex parte Verbena United Methodist Church, 953 So.2d 395 (Ala.2006).

Bama and Edwards rely on a line of cases in which this Court has construed the interest-of-justice prong of § 6-3-21.1 to warrant a transfer of an action from a forum with little or no nexus with the plaintiffs chosen venue to a venue where the action could have been filed so as to spare the local judicial circuit — the original forum — from being burdened unnecessarily with litigation lacking a sufficient connection to the circuit. We recently reaffirmed this principle in Ex parte McKenzie Oil Co. as follows:

“ ‘This Court has held that litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006), citing Ex parte Sawyer, 892 So.2d 898, 904 (Ala.2004). Furthermore, the ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Thus, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass'n, 994 So.2d 906, 911 (Ala.2008). McKenzie therefore had the burden of demonstrating ‘ “that having the case heard in [Escambia] County would more serve the interest of justice ....”’ Ex parte First Tennessee Bank, 994 So.2d at 911 (quoting Ex parte Fuller, 955 So.2d at 416).”

— So.3d at —.

Mims seeks to distinguish the line of cases relied on by Bama and Edwards by noting that Bama does business in Greene County and that one of her claims is based upon Bama’s negligent entrustment of its vehicle to Edwards. Mims contends in her brief to this Court that “[a] significant amount of evidence on the negligent en-trustment count concerns traffic violations and accidents which occurred in Greene County.” Mims offered records indicating that Edwards had been issued several traffic citations and had been involved in two accidents in Greene County. Mims contended in her response to the motion for a change of venue filed with the Greene Circuit Court that she intended to call as witnesses Greene County authorities who investigated each traffic violation and accident, as well as any other drivers involved in the accidents in Greene County. Mims also contended: “It is also conceivable that [she] would call some of Defendant Edwards’[s] family members to testify as to his driving history and detail what, if any, wrecks or traffic stops they [had] witnessed.”

Mims disputes Bama and Edwards’s contention that Edwards admitted in his deposition the existence of the traffic citations and events, thereby necessitating live testimony as to them. However, Bama and Edwards respond by referring this Court to that portion of Edwards’s deposition in which Edwards denied that he was disputing any of the citations. Records relating to Edwards’s earlier driving offenses or accidents that were obtained by a computer search of the AlaCourt database or from the Department of Public Safety in Montgomery were attached as exhibits to Edwards’s deposition and submitted to this Court in support of the petition for a writ of mandamus. None of those documents came from Greene County or are being maintained in Greene County. Consequently, the nexus to Greene County based on the need for live testimony of officers to establish the undisputed citations is minimal. Furthermore, the exhibits before this Court indicate that Edwards had been cited for two prior traffic violations in Tuscaloosa County, as well as others from a host of different jurisdictions.

With respect to the claimed necessity for witnesses involved in the two accidents that occurred in Greene County, without more information as to who was at fault or the nature of each accident, we cannot permit the nexus of the case to Greene County to rest on so weak a reed, especially when viewed in context with the overwhelming weight of factors favoring transfer of the action to Tuscaloosa County in the interest of justice.

Finally, Mims argues in her brief to this Court that the interest of justice does not require a transfer of this action to the Tuscaloosa Circuit Court because “the Greene County Circuit Court handles a modest case load while the Tuscaloosa County Circuit Court is overwhelmed.” She further argues: “Transferring [an action] to a congested venue like Tuscaloosa County is not in the interest of justice or in the best interest of [Bama and Edwards], because it will thwart the speedy and timely resolution of this controversy.” Mims did not present this argument to the trial court; rather, she argues it to this Court for the first time in her responsive brief. “In considering a mandamus petition, we must look at only those facts before the trial court.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). We emphasize that facts before the trial court must be based upon evidentiary material, which does not include the statements of counsel in motions, briefs, and arguments. Ex parte McCord-Baugh, 894 So.2d 679, 686 (Ala.2004). In support of her argument to this Court, Mims attached a report from the Administrative Office of Courts detailing the number of civil cases that were filed in each of Alabama’s circuit courts during fiscal year 2007. We therefore need not decide in this case the impact of such evidence.

According to the evidence before the trial court, the accident took place in Tuscaloosa County, the investigating officer and witnesses to the accident reside in Tuscaloosa County, Bama’s corporate office is located in Tuscaloosa County, and Mims resides in Tuscaloosa County and received medical treatment for her injuries resulting from the accident there. The only connection to Greene County is that Edwards resides there, but he works in Tuscaloosa County. The traffic citations issued to Edwards and the accidents in which he was involved in Greene County, as discussed above, are not a significant factor for this Court to consider. Based upon the evidence before the trial court when it considered Bama and Edwards’s motion to transfer, the tenuous nexus of this case with Greene County does not justify burdening Greene County with the trial of this case, which has a much more substantial nexus with Tuscaloosa County. See Ex parte Verbena United Methodist Church, 953 So.2d at 400; Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 346-47 (Ala.2006); Ex parte Clarksville Refrigerated Lines I, Ltd., 860 So.2d 1261, 1265 (Ala.2003). Consequently, the trial court exceeded its discretion when it denied Bama and Edwards’s motion for a change of venue. Bama and Edwards have clearly demonstrated that they are entitled to the relief requested.

IV. Conclusion

Based upon the facts properly before this Court, we hold that the “interest of justice” and the “convenience of parties and witnesses” require the transfer of this action from Greene County to Tuscaloosa County. We therefore grant Bama and Edwards’s petition for the writ of mandamus and direct the trial court to enter an order transferring the case from the Greene Circuit Court to the Tuscaloosa Circuit Court for the convenience of the parties and the witnesses and in the interest of justice.

PETITION GRANTED; WRIT ISSUED.

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

      . The complaint avers that Bama Concrete is "an Alabama company doing business in Greene County, Alabama." Although both parties use the name "Bama Concrete" in the style and body of most of the documents filed in this case, we note that the motion for a change of venue filed by Bama Concrete refers to the company by the name "Bama Concrete Products Co., Inc."

      . Bama argues that evidence of Edwards's prior acts is not admissible in a negligent-entrustment claim unless it can be shown that Bama knew or should have known of those prior acts. We cannot resolve the issue before us based on Bama’s anticipation that some of or all the evidence of Edwards’s prior acts might not be admissible at trial.

      . Even if we were to consider such evidence as relevant to the transfer issue, it would not support the trial court’s ruling because the total workload of the trial judge here is approximately the same as the workload of each circuit judge in Tuscaloosa County. According to the report from the Administrative Office of Courts, 1,913 civil cases were filed in the Tuscaloosa Circuit Court, and only 96 civil cases were filed in the Greene Circuit Court. Bama and Edwards point out that the circuit judge in Greene County also serves as the circuit judge for two other counties, with a total number of 455 civil cases for which he is responsible, and that four circuit judges in Tuscaloosa County divide the workload of the civil cases filed there.