author: LYONS, Justice. MURDOCK, Justice

text:
    Ex parte TEXTRON, INC., et al. (In re Alabama Boating Centers, Inc., et al. v. Textron, Inc., et al.).
    1100032.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      Gregory C. Cook and David A. Lester of Balch & Bingham LLP, Birmingham; and A. Dwight Blair of Blair & Parsons, Pell City, for petitioners Textron, Inc., Textron Financial Corporation, and James M. Re-gan.
    Douglas H. Bryant and K. Donald Simms of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham; and P. Matthew Abbott of Abbott & Davis, LLC, Pell City, for respondents.
   LYONS, Justice.

Textron, Inc., Textron Financial Corporation, and James M. Regan petition this Court for a writ of mandamus directing the St. Clair Circuit Court to dismiss, based on forum-selection clauses, claims asserted against them by Alabama Boating Centers, Inc.; Ryan Creek Acquisitions, Inc.; Logan Martin Boating Center, Inc.; Ryan Creek Boating Center, Inc.; Billy M. Cosper, Jr.; Andrew J. Kaufmann, Jr.; ABM Acquisition and Development, LLC; and Donald F. Seibert. We deny the petition in part, grant it in part, and issue the writ.

Factual Background, and Procedural History

Ryan Creek Acquisitions, Inc. (“Ryan Creek Acquisitions”), was an Alabama corporation that sold recreational boats to consumers. In 2007, Ryan Creek Acquisitions changed its name to Alabama Boating Centers, Inc. (“Alabama Boating”); it has continued to sell recreational boats under that name. Logan Martin Boating Center, Inc. (“Logan Martin”), is also an Alabama corporation that sells recreational boats to consumers. It appears from the documents presented to us that Alabama Boating and Logan Martin are independent entities that share some of the same owners and officers.

Textron Financial Corporation (“Tex-tron Financial”) is a Delaware corporation with headquarters in Rhode Island and offices in several states. Textron Financial is a subsidiary of Textron, Inc. (“the Textron parent”), also a Delaware corporation with headquarters in Rhode Island.

On December 5, 2006, Ryan Creek Acquisitions entered into a credit and security agreement with Textron Financial (“the 2006 agreement”). The 2006 agreement provided that Textron Financial would finance Ryan Creek Acquisitions’ purchase of inventory and that Textron Financial would receive a security interest in that inventory and in other of Ryan Creek Acquisitions’ assets to secure the resulting debt. Paragraph 11 of the 2006 agreement granted Textron Financial the right, upon default by Ryan Creek Acquisitions, to repossess the collateral made the subject of the security interest. That paragraph stated, in part:

“If an event of default occurs, Secured Party shall have all of the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable laws. Debtor agrees that Secured Party may, by itself or through an agent, without notice to any person and without judicial process of any kind, enter in any premises or upon any land owned, leased, or otherwise under the apparent control of Debtor, where secured party believes the collateral may be, and disassemble, render unusable and/or repossess all or any items of the collateral. Debtor expressly waives all rights to possession of the collateral after default and all claims for injuries suffered through or loss caused by such injury or repossession by Secured Party. Debtor shall, upon demand by Secured Party, assemble the collateral and return it to Secured Party at a place designated by Secured Party.”

Paragraph 16 of the 2006 agreement contained the following forum-selection clause:

“This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Rhode Island without reference to conflict of laws principles. Debtor consents to the exclusive jurisdiction of the Courts of the State of Rhode Island, sitting in Providence, Rhode Island and the United States District Court for the District of Rhode Island for all purposes in connection with this Agreement. Debtor hereby waives and agrees not to assert any objection to the jurisdiction of any such Courts, including the objection of inconvenient forum.”

Billy M. Cosper, Jr., Andrew J. Kauf-mann, Jr., and Donald F. Seibert personally guaranteed Ryan Creek Acquisitions’ obligations under the 2006 agreement. Each of their guaranty agreements included the following choice-of-law and forum-selection clauses: “This Guaranty shall be governed by, and construed in accordance with, the laws of the State of Rhode Island, without reference to applicable conflict of law principles. Guarantor consents to the jurisdiction and venue of Rhode Island courts in connection with Textron [Financial] ⅛ enforcement of any of Guarantor’s obligations under this guaranty.”

On March 5, 2007, Logan Martin entered into a credit and security agreement with Textron Financial (“the 2007 agreement”). The 2007 agreement provided that Textron Financial would finance Logan Martin’s inventory and would receive a security interest in the inventory and in other of Logan Martin’s assets to secure the resulting debt. The 2007 agreement contained repossession and forum-selection provisions identical to those in paragraphs 11 and 16 of the 2006 agreement. Cosper, Kaufmann, Seibert, and ABM Acquisition and Development, LLC (“ABM”), guaranteed Logan Martin’s obligations under the 2007 agreement. Each of their guaranty agreements included choice-of-law and forum-selection provisions identical to those in the guaranty agreements executed with the 2006 agreement.

On May 8, 2008, Logan Martin and Ryan Creek Acquisitions, under its new name, Alabama Boating, jointly entered into another credit and security agreement with Textron Financial (“the 2008 agreement”). Under the 2008 agreement, Tex-tron Financial would finance the acquisition of inventory for both companies and would receive security interests in their inventory and other assets to secure the resulting debt. The 2008 agreement contained repossession and forum-selection provisions identical to those in paragraphs 11 and 16 of the 2006 agreement. Cosper and Kaufmann guaranteed Alabama Boating’s and Logan Martin’s obligations under the 2008 agreement. Their guaranty agreements contained choice-of-law and forum-selection clauses identical to those contained in their earlier guaranty agreements.

Under the 2006 agreement and the 2008 agreement, Textron Financial ultimately provided approximately $4,200,000 in inventory financing first to Ryan Creek Acquisitions and subsequently to Alabama Boating. Under the 2007 agreement and the 2008 agreement, Textron Financial ultimately provided approximately $2,500,000 in inventory financing to Logan Martin. On October 24, 2008, Textron Financial wrote Alabama Boating and Logan Martin and advised them that, although Textron Financial “remain[ed] firmly committed to the marine industry,” due to “turbulence” in worldwide credit markets, Textron Financial would be changing pricing structures and increasing the interest rates Alabama Boating and Logan Martin paid under the 2006 agreement, the 2007 agreement, and the 2008 agreement (collectively, “the financing agreements”). Kaufmann signed agreements on behalf of both companies, acknowledging Textron Financial’s proposed changes. On December 31, 2008, Textron Financial wrote Alabama Boating and Logan Martin again, this time advising them that, as a result of continued “negative economic conditions,” Textron Financial would “no longer provide wholesale financing to the marine industry”; that the financing agreements would be canceled as of February 27, 2009; and that the outstanding debt under the financing agreements must be paid. Alabama Boating, Logan Martin, and the various guarantors maintain that Textron Financial knew in October 2008 that it intended to stop financing marine products but that it concealed that information from them.

Susan Anderson, Textron Financial’s vice president, whom Textron Financial describes as a “workout account manager,” stated in an affidavit that, as of April 2010, Aabama Boating and Logan Martin jointly owed Textron Financial $1,553,944 in outstanding principal and interest under the financing agreements. She also stated that Textron Financial had unsuccessfully sought payment from Aabama Boating and Logan Martin for several months in 2009. Subsequently, on December 23, 2009, Textron Financial wrote Aabama Boating and Logan Martin advising them that they were in default of the financing agreements and that their debts had been accelerated and demanding immediate surrender of the collateral securing the debts. Textron Financial copied the December 23, 2009, letter to Cosper, Kaufmann, Seibert, and ABM as guarantors of the debts and demanded payment from them. On March 26, 2010, Textron Financial again wrote Aabama Boating and Logan Martin advising them that they were in default under the financing agreements; demanding payment from Aabama Boating and Logan Martin and the guarantors; and demanding surrender of the collateral.

On April 7, 2010, Textron Financial commenced an action against Aabama Boating and Logan Martin in the United States District Court for the Northern District of Aabama (“the Northern District”), stating claims sounding in detinue pursuant to Rule 64, Fed.R.Civ.P.; Rule 64, Ala. R. Civ. P.; and § 6-6-250 et seq., Aa.Code 1975 (“the detinue action”). Textron Financial sought 1) a determination that it had a right to possession of the collateral identified as security in the financing agreements, specifically, the inventory it had financed under those agreements; 2) a writ of seizure; and 3) a final judgment granting it possession of the collateral. No right to a money judgment was asserted. On April 29, 2010, Aabama Boating and Logan Martin answered the detinue complaint and asserted various affirmative defenses, including fraud.

On April 29, 2010, the same day Alabama Boating and Logan Martin filed their answer in the detinue action, Alabama Boating; its predecessor, Ryan Creek Acquisitions; Logan Martin; Cos-per; Kaufmann; and another entity, Ryan Creek Boating Center, Inc., commenced an action against the Textron parent; Tex-tron Financial; and James M. Regan, an employee of Textron Financial, in the St. Clair Circuit Court (“the St. Clair action”). The complaint in the St. Clair action stated several claims against the defendants, including fraud, suppression, negligence, breach of contract, breach of fiduciary duty, civil conspiracy, and promissory fraud.

On May 26, 2010, the parties to the detinue action filed a joint stipulation of the dismissal of that action. In doing so, the parties stipulated that Textron Financial’s detinue claims would be dismissed without prejudice and that the dismissal would have “no effect on” the St. Clair action. On June 1, 2010, Textron Financial sued Alabama Boating, Logan Martin, Cosper, Kaufmann, Seibert, and ABM in the United States District Court for the District of Rhode Island (“the Rhode Island action”). In the Rhode Island action, Textron Financial stated claims of breach of contract against Alabama Boating and Logan Martin and claims against each of the guarantors seeking recovery under the various guaranty agreements.

On June 3, 2010, the Textron parent; Textron Financial; and Regan (collectively “the Textron defendants”) moved to dismiss the St. Clair action based on the forum-selection clauses in the financing agreements. The Textron defendants also alleged that the complaint in the St. Clair action failed to state a claim upon which relief could be granted. The plaintiffs in the St. Clair action responded and subsequently amended their complaint to add ABM and Seibert as plaintiffs and to state additional claims of fraud and suppression against the Textron defendants. On August 13, 2010, after extensive briefing by the parties, the trial court denied the Tex-tron defendants’ motion to dismiss the St. Clam action, finding that Textron Financial had waived its rights under the forum-selection clauses by filing the detinue action in the Northern District and that the plaintiffs had stated claims upon which relief could be granted. On October 8, 2010, the Textron defendants petitioned this Court for a writ of mandamus directing the trial court to dismiss the plaintiffs’ claims against them without prejudice so that they may be asserted in the Rhode Island action.

Standard of Review

This Court has stated:

“ ‘[A] petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an “outbound” forum-selection clause when it is presented in a motion to dismiss.’ Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001); see Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). ‘[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.’ Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001). ‘[T]he review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.’ Ex parte D.M. White Constr. Co., 806 So.2d at 372.”

Ex parte Leasecomm Corp., 886 So.2d 58, 62 (Ala.2003). This Court has also explained that, in considering a petition for a writ of mandamus when the facts are undisputed and this Court is presented with pure questions of law, it reviews the trial court’s ruling de novo. See, e.g., Regions Bank v. Reed, 60 So.3d 868, 877 (Ala.2010)(“The circuit court’s order issuing a writ of mandamus involves only questions of law. Therefore, the same standard of review applies to both the appeal and the petition: a de novo standard.”); George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (“Because the facts are undisputed and we are presented with pure questions of law, our standard of review is de novo.”).

Analysis

I. Textron Financial

“In [Professional Ins. Corp. v.] Sutherland, [700 So.2d 347 (Ala.1997) ], this Court adopted the majority rule, by which an ‘outbound’ forum-selection clause is upheld unless the party challenging the clause clearly establishes that it would be unfair or unreasonable under the circumstances to hold the parties to their bargain. 700 So.2d at 351.” Ex parte CTB, Inc., 782 So.2d 188, 190-91 (Ala.2000). The trial court did not hold that the forum-selection clauses in the financing agreements were unfair or unreasonable. Instead, it held that Textron Financial had waived its rights under the forum-selection clauses by filing the detinue action in the Northern District and denied the Textron defendants’ motion to dismiss based on that holding.

Our research has not disclosed, and the parties have not cited, an Alabama case dealing with waiver in the context of a forum-selection clause. Regarding the waiver of rights under a contract generally, this Court has stated:

“The question of waiver, the voluntary surrender of a known right, is in the main a question of intention, and the authorities hold that, to be effectual, it must be manifested in some unequivocal manner; if not express, then by such language or conduct as to evince clearly the intention to surrender. Bennecke v. Insurance Co., 105 U.S. 355, 26 L.Ed. 990 [ (1881) ]; Balfour v. Parkinson (C.C.) 84 Fed. 855, 861 [ (1898) ]. Quoting Sanborn, J., in Rice v. Fidelity & Deposit Co., 103 Fed. 427, 435, 43 C.C.A. 270, 278 [ (1900) ]:
“ ‘To constitute a waiver, there must be an intention to relinquish the right, or there must be words or acts calculated to induce the other contracting party to believe, and which deceive him into the belief, that the holder of the right has abandoned it.’
“‘A waiver will not be implied from slight circumstances, but must be evidenced by an unequivocal and decisive act, clearly proved.’ 29 Am. & Eng. Law, p. 1105.”

Isom v. Johnson, 205 Ala. 157, 159-60, 87 So. 543, 545 (1920).

In their mandamus petition, the Textron defendants argue that, by filing the deti-nue action in the Northern District, Tex-tron Financial did not waive its rights under the forum-selection clauses of the financing agreements because those agreements expressly granted Textron Financial the right to repossess the collateral made subject to the financing agreements, a right Textron Financial could assert only in Alabama. The financing agreements granted Textron Financial the right to repossess the inventory it had financed and in which it held a security interest. It is undisputed that the inventory of Alabama Boating and Logan Martin, the collateral Textron Financial sought to repossess in the detinue action, is located in Alabama. In their mandamus petition, the Textron defendants state that “Textron Financial could not have filed its repossession action anywhere other than Alabama.” (Petition, at 24.) We agree.

Rule 64, Fed.R.Civ.P., requires the federal courts considering actions for the seizure of property to apply “the law of the state where the court is located.” Both Rhode Island and Alabama laws provide remedies for the recovery of property that can be found within the respective states. See, e.g., R.I. Gen. Laws § 34-21-2 (1956)(“The district court may issue writs of replevin where the goods and chattels to be replevied are valued at five thousand dollars ($5,000) or less, and venue of the action may be in any division of the district court where they were taken, attached or detained.”). Implicit in this language is the premise that the Rhode Island Legislature enacted the statute to govern recovery of property found within the jurisdiction of a district court in that state. Section 6-6-250, Ala.Code 1975, provides: “When an action is commenced for the recovery of personal chattels in specie ... it is the duty of the clerk to endorse on the summons that the sheriff is required to take the property mentioned in the complaint into his possession unless the defendant gives bond payable to the plaintiff_” See also § 6-6-255 (“If the officer fails to find and take the goods and chattels, he may summon the defendant to appear as in other cases, and the plaintiff may then declare and prosecute the action alone for the recovery of the value of the property and damages for the taking and detention of the property as if he had thus commenced his action by a complaint.”). Implicit in this language is the premise that the Alabama Legislature enacted the statute to govern recovery of property that could be found within this State. Because the property Textron Financial sought to repossess was in Alabama, any action for repossession of that property lay in Alabama where the property could be found; thus, Textron Financial could have filed its repossession action only in Alabama.

The forum-selection clauses in the financing agreements state, in part: “Debt- or consents to the exclusive jurisdiction of the Courts of the State of Rhode Island, sitting in Providence, Rhode Island and the United States District Court for the District of Rhode Island for all purposes in connection with this Agreement.” The plaintiffs contend that the word “exclusive” in this provision prohibited Textron Financial from filing any action — including an action seeking repossession — in any court except the federal and state courts in Rhode Island. The plaintiffs also argue that the trial court in the St. Clair action correctly concluded that the detinue action was brought for a “purpose[ ] in connection with th[e] [financing] Agreements,” and, therefore, that the detinue action was governed by the forum-selection clauses, and that by filing the detinue action in the Northern District, Textron Financial waived its rights under those clauses;

However, the parties could not, by contract, have empowered the federal or state courts in Rhode Island to act beyond their authority. Because those out-of-state courts lacked authority to order repossession of property in Alabama, reading the forum-selection clauses as the plaintiffs suggest would render Textron Financial’s repossession of the collateral impossible. Under such a construction, those portions of the financing agreements authorizing Textron Financial to repossess the property securing its loan would be nugatory. The plaintiffs contend that Textron Financial could and should have drafted an express exception to the forum-selection clauses allowing repossession actions to proceed in an appropriate jurisdiction. However, the financing agreements expressly grant Textron Financial the right to repossess its collateral, and this Court will avoid construing the financing agreements so as to deprive the repossession provisions of a field of operation. This Court has stated:

“Terms of a written instrument should be construed in pari materia and a construction adopted that gives effect to all terms used. Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314 (Ala.1979). Inconsistent parts in a contract are to be reconciled, if susceptible of reconciliation; however, if that is not possible, any doubt will be resolved in favor of the first part, considering the instrument as a whole. Scherf v. Renfroe, 266 Ala. 35, 93 So.2d 402 (1957).”

Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995).

A Florida District Court of Appeal considered similar circumstances in Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc., 656 So.2d 541 (Fla.Dist.Ct.App.1995). In that case, Advantage Car Rental & Sales, Inc. (“Advantage”), had leased automobiles to Prestige Rent-A-Car, Inc. (“Prestige”). The lease agreement included a forum-selection clause stating that actions brought based on an alleged breach of the agreement, to enforce the agreement, or to declare the parties’ rights thereunder were to be brought in the state of New York. Advantage subsequently sued Prestige in a federal court in New York, stating claims of breach of contract and seeking recovery of the leased vehicles. However, the “New York court concluded that it had no authority to order replevin of the automobiles since they were located outside the state of New York.” 656 So.2d at 543. Advantage subsequently filed a complaint in Florida seeking repossession of the vehicles and obtained a writ of replevin from the Florida court. Prestige appealed.

“On appeal, Prestige arguefd] that the trial court erred in finding that paragraph 20 of the lease agreement, which allow[ed] Advantage to retake possession of the vehicles, operated to waive ... paragraph 23, which provide[d] for exclusive jurisdiction in New York for the parties’ duties.... ” 656 So.2d at 544. The Florida District Court of Appeal analyzed the seemingly conflicting provisions, stating:

“Prestige is correct that forum-selection clauses are generally enforceable .... Here the parties selected New York as their forum for settling disputes under the lease, unless otherwise expressly waived by them. In paragraph 20, the parties expressly agreed that one of Advantage’s remedies in the event of default is to retake possession of the vehicles and Prestige expressly authorized Advantage to enter its premises where the vehicles were located in order to take possession. The parties were aware that the vehicles were to be located in Florida and not New York. A New York court cannot order repossession of property located outside its jurisdiction.... Thus, the only logical construction of the contract is the parties intended that Advantage had the right — through appropriate court proceedings in Florida — to retake possession of the vehicles in Florida. To require the parties to seek repossession in New York which has no authority to order seizure of the property would effectively eliminate the remedy of repossession bargained for in the contract.
“Furthermore, paragraph 23 could not confer jurisdiction on a New York court for replevin of property located outside the state.... Replevin is a possessory-action and therefore requires in rem jurisdiction over the subject matter.... An action for replevin cannot be successfully maintained unless the property is within the state and subject to the jurisdiction of its courts.... Thus the parties could not have conferred in rem jurisdiction on the New York court to handle the replevin action of vehicles located in Florida.”

656 So.2d at 544 (footnote omitted; second emphasis added). We find this reasoning persuasive. See also RMP Rentals v. Metroplex, Inc., 356 Ark. 76, 80-81, 146 S.W.3d 861, 864 (2004) (declining to apply a forum-selection clause mandating Louisiana as forum for a claim under the Arkansas materialmen’s lien statute, stating: “Parties may by agreement consent to personal jurisdiction in a given court, but subject-matter jurisdiction cannot be conferred merely by agreement of the parties .... While a forum-selection clause implies consent as to personal jurisdiction, ... it cannot confer subject-matter jurisdiction over in rem proceedings.... Only an Arkansas court has subject-matter jurisdiction to enforce the liens and to order foreclosure on real property located within its borders.”); Middletown Park Realty, LLC v. Bar BQ Junction, Inc., [Ms. CA 2009-10-258, May 17, 2010] (Ohio Ct. of App.2010)(not published in Ohio Appellate Reports or Northeastern Reporter 2d) (“We find that MPR did not waive its choice of forum because the company was obligated to bring the forcible entry and detainer action in Ohio. This was not a ‘voluntary relinquishment’ of MPR’s contractual right; it was a requirement, by the state of Ohio, in order for MPR to repossess its property. MPR should not now be forced to remain in Ohio to litigate issues arising from the lease when the forum-selection clause, to which BBQ Junction agreed, clearly states that such matters are to be brought in Marion County, Indiana.”).

Therefore, recognizing that the state and federal courts in Rhode Island cannot act beyond their authority, and giving effect both to the forum-selections clauses and to those terms in the financing agreements granting Textron Financial a right of repossession, we conclude that the logical construction of the financing agreements is that the parties to the financing agreements intended Textron Financial to have the right — through appropriate court proceedings in Alabama — to retake possession of its collateral in Alabama. In order to harmonize the provisions in the financing agreements, we read the term “exclusive jurisdiction” in the forum-selection clauses, in light of the separate provisions of the financing agreements conferring a right to a remedy for seizure, as operating to the exclusion of any other court having concurrent jurisdiction. The Rhode Island courts have no concurrent jurisdiction to seize property located in Alabama. Recognizing the availability of an action to seize property in Alabama respects the separate contractual provisions granting Textron Financial a right to recover its collateral while also affording a field of operation to the forum-selection clauses.

The plaintiffs contend that, even if Tex-tron Financial did not waive the forum-selection provisions, the detinue action “encompassed the entirety of the parties’ dispute” and, therefore, that Textron Financial violated the forum-selection clauses and selected Alabama as the forum for resolving “the full dispute arising out of the credit and security agreements].” (Answer, at 17, 21.) To support this contention, the plaintiffs reference 1) Textron Financial’s allegations in the detinue action that Alabama Boating and Logan Martin were in default under the financing agreements and 2) Alabama Boating and Logan Martin’s answer asserting defenses based in fraud. In the detinue action, however, Textron Financial sought only possession of the collateral. Although Textron Financial was required to prove its right to possession, it did not assert any claims of breach of contract, nor did it seek recovery from the guarantors. Moreover, although Alabama Boating and Logan Martin asserted defenses to the detinue action, they did not file any counterclaims against Tex-tron Financial. Instead, on the same day they filed their answer in the detinue action, they filed a separate action in the St. Clair Circuit Court — an action related to the parties’ transactions under the financing agreements but brought by additional parties and asserted against additional defendants. The detinue action, therefore, was limited to the question of possession and did not “encompass the entirety of the parties’ dispute” as the plaintiffs contend.

Because Textron Financial, in filing the detinue action to obtain repossession of the collateral, was exercising a right granted to it under the financing agreements, a right that could have been exercised only in Alabama, Textron Financial’s filing of the detinue action was not conduct clearly showing an intent to surrender its rights under the forum-selection clauses. See Isom, 205 Ala. 157, 87 So. at 545. Accordingly, the trial court erred in concluding that Textron Financial waived its rights under the forum-selection clauses of the financing agreements.

In the final paragraph of their answer to the mandamus petition, the plaintiffs contend that they have sought rescission of the financing agreements and, therefore, that their claims do not fall within the forum-selection clauses. Because Ryan Creek Acquisitions, Alabama Boating, and Logan Martin are the only parties to the agreements sought to be rescinded, we restrict our examination of this contention to those parties. In support of their argument they cite Vankineni v. Santa Rosa Beach Development Corp. II, 57 So.3d 760 (Ala.2010), in which the forum-selection clause expressly stated that it applied to “ ‘any action to enforce a provision’ of the contract.” 57 So.3d at 762. Based on that language, this Court held that an action for rescission did not fall within the scope of the forum-selection clause. The forum-selection clauses in the financing agreements, however, are much broader and expressly relate to “all purposes in connection with” the financing agreements. Accordingly, Vankineni is distinguishable, and the plaintiffs’ claims seeking rescission do fall within the scope of the forum-selection clauses.

Based on the foregoing, Textron Financial, as a party to the financing agreements, has shown that the claims asserted against it by Ryan Creek Acquisitions, its successor, Alabama Boating, and Logan Martin are subject to the forum-selection clauses of the financing agreements. Accordingly, Textron Financial has shown a clear legal right to the dismissal of the claims asserted against it by those plaintiffs.

Because the forum-selection clauses concern the parties to the financing agreements — Textron Financial, Ryan Creek Acquisitions, Alabama Boating, and Logan Martin — and do not expressly encompass other individuals or entities, we must separately consider whether the forum-selection clauses require dismissal of the claims asserted by and against nonparties to the financing agreements.

II. The Other Textron Defendants

The Textron parent and Regan, Textron Financial’s employee, claim the benefit of the forum-selection clauses and argue that their motion to dismiss the plaintiffs’ claims against them should have been dismissed pursuant to those clauses. As stated above, the language of the forum-selection clauses does not expressly encompass nonparties to the financing agreements. However, the clauses do state that the “debtors” — defined by the various financing agreements as Ryan Creek Acquisitions, Alabama Boating, and Logan Martin — consent “to the exclusive jurisdiction of the Courts of the State of Rhode Island, sitting in Providence, Rhode Island and the United States District Court for the District of Rhode Island for all purposes in connection with this Agreement.” (Emphasis added.)

“When interpreting a contract, this Court must first look to the plain language of the contract and determine whether that language is ambiguous. ‘[A] court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state.’ Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998) (citing Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409 (Ala.1993)).”

Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004). In their complaint, Ryan Creek Acquisitions, Alabama Boating, and Logan Martin allege that the Textron parent and Regan engaged in various acts of fraud and negligence related to Textron Financial’s financing of inventory for Ryan Creek Acquisitions, Alabama Boating, and Logan Martin. The claims asserted against the Textron parent and Regan by Ryan Creek Acquisitions, Alabama Boating, and Logan Martin, therefore, are asserted by “debtors ... in connection with” the financing agreements. Because the language of the forum-selection clauses is broad enough to include the claims asserted against the Textron parent and Regan by “the debtors,” the Textron parent and Regan have shown a clear legal right to the dismissal of the claims asserted against them by those plaintiffs.

III. Other Parties

The guaranty agreements entered into by Cosper, Kaufmann, Seibert, and ABM (collectively, “the guarantors”) include independent, and much narrower, forum-selection clauses than those in the financing agreements. Specifically, each of the guaranty agreements state: “Guarantor consents to the jurisdiction and venue of Rhode Island courts in connection with Textron [Financiall’s enforcement of any of Guarantor’s obligations under this guaranty.” (Emphasis added.) This provision merely consents to venue; it does not provide for exclusive jurisdiction as is the case with the forum-selection clauses found in the financing agreements. In their mandamus petition, the Textron defendants have not stated any basis upon which we could conclude that the forum-selection clauses of the financing agreements bind the guarantors. We note that Textron Financial has filed a separate action against the guarantors in Rhode Island seeking recovery under the guaranty agreements. Whether each of those actions may proceed independently of the other is a question not before us in this proceeding. Accordingly, at this stage of the proceedings, the Textron defendants have not shown a clear legal right to the dismissal of the claims asserted against them by the guarantors.

Finally, as to Ryan Creek Boating Center, Inc. (not to be confused with Ryan Creek Acquisitions, Inc., the former name of Alabama Boating Centers, Inc.), we noted above that none of the materials presented to this Court identifies Ryan Creek Boating Center, Inc., or explains its relationship to the various entities and individuals involved in this litigation. Notably, none of the documents presented to this Court shows that Ryan Creek Boating Center, Inc., was a party to any of the financing agreements. In their mandamus petition, the Textron defendants have not stated any basis upon which we could conclude that the forum-selection clauses of the financing agreements extend to Ryan Creek Boating Center, Inc. Accordingly, at this stage of the proceedings, the Textron defendants have not shown a clear legal right to the dismissal of the claims asserted against them by Ryan Creek Boating Center, Inc.

Conclusion

Based on the foregoing, we conclude that the Textron defendants have shown a clear legal right to the dismissal of the claims asserted against them in the St. Clair action by Ryan Creek Acquisitions, Alabama Boating, and Logan Martin, and that the trial court erred in denying their motion to dismiss as to the claims asserted against the Textron defendants by those plaintiffs. However, the Textron defendants have not shown a clear legal right to the dismissal of the claims asserted against them by the guarantors or by Ryan Creek Boating Center, Inc. Accordingly, we deny the petition in part, grant it in part, and direct the trial court to vacate its August 13, 2010, order insofar as it relates to Ryan Creek Acquisitions, Alabama Boating, and Logan Martin and to enter an order dismissing without prejudice the claims of those plaintiffs against the Textron defendants.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I write specially to comment on the argument by the plaintiffs (the Alabama parties) that the Textron defendants (the foreign parties) waived their rights under the forum-selection clauses because the original detinue action filed in federal district court in Alabama “encompassed the entirety of the parties’ dispute.” The main opinion rejects this argument based on the rationale that the action filed in the federal district court in Alabama was limited to a detinue claim and did not encompass the entirety of the parties’ dispute. I agree that the argument of the Alabama parties can be rejected based on this rationale.

Even if the detinue action had encompassed the entirety of the parties’ dispute, however, I would not be inclined to the view that any rights under the fonim-selection clauses had been waived under the circumstances presented in this case. I note that the Textron defendants voluntarily dismissed the Alabama detinue action soon after they filed it and that there was no reliance by the Alabama parties on the fact that the detinue action had been filed in Alabama. (Also, I do not believe that the filing of a counterclaim by the Alabama parties in the detinue action, even if it had occurred, could have been deemed a basis for a waiver by the Tex-tron defendants.)

Again, however, the filing of an action in Alabama “encompassing] the entirety of the parties’ dispute” is not a circumstance here presented, and I do not read the holding of the main opinion as extending to the effect of such a circumstance had it been presented. I therefore concur fully in the main opinion.

      . Except for statements in the complaint in the St. Clair action stating that Ryan Creek Boating Center, Inc., is an Alabama corporation doing business in St. Clair County, none of the records presented to this Court identify Ryan Creek Boating Center, Inc., or explain its relationship to the various entities and individuals involved in the St. Clair action.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Jeanette C. OLIVER and Geraldine C. Stephens v. Nancy E. SHEALEY, as personal representative of the estate of Annie Ruth Ford Wilson, deceased.
    1091707.
    Supreme Court of Alabama.
    Jan. 14, 2011.
    Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, L.L.C., Selma, for appellants.
    Mitchell E. Gavin, Alexander City, for appellee.
   LYONS, Justice.

Jeanette C. Oliver and Geraldine C. Stephens, nieces of Annie Ruth Ford Wilson (“the nieces”), appeal from a final judgment dismissing their appeal to the Talla-poosa Circuit Court from an order of the Tallapoosa Probate Court directing the sale of certain real property for the payment of debts incurred by Wilson’s estate. We dismiss the appeal with instructions.

On October 28, 2009, Nancy E. Shealey, as personal representative of Wilson’s estate (hereinafter “the Wilson estate”), filed a petition in the Tallapoosa Probate Court for the sale of certain real property for the payment of debts incurred by the Wilson estate. Certain property known as the Todd Colvin estate in Alexander City and alleged to be property of the Wilson estate was the subject of the petition. The nieces were named as parties to the proceedings in the probate court. They challenged the Wilson estate’s ownership of the property that was the subject of the petition, and, at the hearing held by the probate court, they orally opposed Shealey’s petition. The nieces objected to the sale on the grounds that Wilson was not an heir to the Todd Colvin estate property because she was not a biological child of Colvin’s and there was no proof that she had been adopted by him. On February 4, 2010, over the objection of the nieces, the probate court entered an order allowing the sale. The nieces appealed the probate court’s order to the Tallapoosa Circuit Court. Shealey moved to dismiss the appeal, alleging lack of jurisdiction. On June 14, 2010, the circuit court entered an order dismissing the appeal for want of jurisdiction. The nieces filed a motion to reconsider in the circuit court requesting, in the alternative to dismissal of their appeal, a transfer to the appropriate appellate court. The circuit court denied that motion, and the nieces appealed.

On appeal, the nieces argue (1) that the circuit court erred in dismissing the appeal for lack of jurisdiction; and (2) that the circuit court should have transferred the appeal to the appropriate appellate court. Shealey argues that an appeal of an order entered in the probate court ordering the sale of real property for payment of an estate’s debts should more properly have been taken to this Court rather than the circuit court, and she asks us to affirm the judgment of the circuit court.

An appeal from a probate court is governed by §§ 12-22-20 through 12-22-27, Ala.Code 1975. Section 12-22-20 provides:

“An appeal lies to the circuit court or Supreme Court from any final decree of the probate court, or from any final judgment, order, or decree of the probate judge.... ”

A circuit court’s appellate jurisdiction over an order of a probate court is confined to seven circumstances enumerated in § 12-22-21. Russell v. Russell, 758 So.2d 533, 536-37 (Ala.1999). However, none of those circumstances deal with the nieces’ appeal of the probate court’s order to sell real property in the possession of the Wilson estate. Therefore, the circuit court did not have appellate jurisdiction over the order entered by the probate court in this case.

This Court dealt with a similar situation in Scott v. Boykin, 900 So.2d 410 (Ala.2004). In Scott, the appellant appealed to the circuit court from an order entered by the probate court that should have been appealed to this Court. The circuit court entered a summary judgment in favor of the appellee. The appellant then appealed to this Court. The appellee, who was the prevailing party in both the probate court and the circuit court, moved to dismiss the appeal to this Court, arguing that neither the circuit court nor this Court had jurisdiction over the appeal. This Court dismissed the appeal, but did so without prejudice to the right of the appellant to seek correction by the circuit court of the notice of appeal, correcting that notice to read “Supreme Court” pursuant to Rule 3(c), Ala. R.App. P.

A similar situation was presented in Russell. As we stated in Scott:

“In [Russell ], the appellee in the circuit court moved to dismiss the appeal to the circuit court for want of jurisdiction. The circuit court agreed with the mov-ant as to its lack of jurisdiction, but instead of dismissing the appeal it corrected the notice of appeal so as to effect a transfer of the appeal to the Supreme Court. This Court approved of that resolution of the matter, stating:
“ ‘Accordingly, when the circuit court is not the proper appellate court, it does not abuse its discretion in correcting the notice of appeal in accordance with Rule 3(c), Ala. R.App. P., and transferring the appeal to the proper appellate court. Thus, Mrs. Russell’s appeal is properly before this Court, and Peacock’s motion to dismiss the appeal is denied.’ ”

900 So.2d at 412 (quoting Russell, 758 So.2d at 538).

Scott and Russell are dispositive of this case. Rule 3(c), Ala. R.App. P., states, in pertinent part:

“If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court.”

(Emphasis added.) Although some of the language in Scott and Russell speaks of discretion vested in the court to which the appeal is taken, the language of Rule 3(c) is mandatory. Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (“The word ‘shall’ is clear and unambiguous and is imperative and mandatory.”). The word “shall” can be permissive in a situation where it would frustrate legislative intent to hold otherwise, but if no such circumstance exists, it is mandatory. This is such a case because no intent of the rule would be disserved by allowing a court to have discretion in correcting a clerical error. See, e.g., Ex parte Bad Toys Holdings, Inc., 958 So.2d 852, 856 (Ala.2006), in which this Court stated:

“[The plaintiff] nonetheless notes that this Court has also stated that the word “shall” may also be construed as being permissive where the intent of the legislature would be defeated by making the language mandatory.’ Ex parte Brasher, 555 So.2d 192, 194 (Ala.1989). However, the principle espoused in Ex paHe Brasher was applied in interpreting a statute, not a contract. In the present case, nothing in the purchase agreement indicates that the parties intended that the word ‘shall’ mean anything other than what it ordinarily means. ‘[Shall] in ordinary usage means “must” and is inconsistent with a concept of discretion.’ Black’s Law Dictionary 1375 (6th ed. 1991).”

To the extent Scott and Russell are inconsistent with our decision in Bad Toys Holdings, they are hereby overruled.

If the notice of appeal names the wrong appellate court, the court to which the appeal has been wrongly taken “shall” treat that designation as a clerical mistake and “shall” correct the notice of appeal accordingly. Therefore, although the circuit court properly denied the nieces’ request to transfer the case, the circuit court erred when it failed to correct the notice of appeal pursuant to Rule 3(e), Ala. R.App. P.

We dismiss the nieces’ appeal, and we direct the circuit court to correct the notice of appeal to reflect an appeal to this Court. The circuit court shall then return the notice of appeal to the probate court for preparation of the appeal by the probate clerk for transmission to this Court. Rule 3(c) requires that the necessary clerical steps be taken “to docket the appeal and to file the record and briefs in the appropriate appellate court.” In this case, those steps occur in the probate court because it is the court from which the appeal is taken. If no record is available in the probate court, Rule 10(d), Ala. R.App. P., designates the procedure to be followed in preparing a statement of the evidence or proceedings.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Section 12-22-21 states:
      "Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified. Appeals to the Supreme Court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:
      "(1) From the decree, judgment or order on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest;
      "(2) From the decree, judgment or order on an application claiming the right to execute a will or administer an estate, to be taken within 42 days after the hearing and decision of such application, unless the application was denied because the applicant was deemed unfit to serve by reason of a conviction of an infamous crime or by reason of improvidence, intemperance or want of understanding, in which case the appeal must be taken within seven days from the denial of the application;
      "(3) Upon any decree, judgment or order removing an executor or administrator, in which case the appeal must be taken within seven days after such decree, judgment or order;
      "(4) By a legatee or person entitled to distribution, on the decision of the court, in proceedings instituted to compel the payment of a legacy or distributive share, at any time within 42 days after such decision;
      "(5) After a final settlement, upon any order, judgment or decree, made on such settlement, or respecting any item or matter thereof, or any previous settlement or item, or matter thereof, within 42 days thereafter;
      "(6) Upon any issue as to the insolvency of an estate and upon any issue as to an allowance of any claim against insolvent estates, in which cases the appeal must be taken within 42 days after the determination of such issue; and
      "(7) On an application for a division or partition of real or personal property, in which case the appeal must be taken within 42 days, and the decree, judgment or order may be stayed upon the execution, within 14 days, of a supersedeas bond, payable to the appellee, in an amount and upon condition to be prescribed by the probate judge, such stay of execution to continue until the appeal is decided.”


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Y.N. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090832.
    Court of Civil Appeals of Alabama.
    Jan. 14, 2011.

      Harry A. Drasutis, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   THOMPSON, Presiding Judge.

This is the second time this matter has been before this court. In Y.N. v. Jefferson County Department of Human Resources, 37 So.3d 836, 837-38 (Ala.Civ.App.2009), this court set forth the procedural history and facts of this matter as follows:

“On December 13, 2007, the Jefferson County Department of Human Resources (‘DHR’) filed complaints alleging that B.N. and W.N. Ill (hereinafter together referred to as ‘the children’) were dependent children. The dependency complaints alleged that the children’s parents, Y.N. (‘the mother’) and W.N., Jr. (‘the father’), were abusing drugs and that the children were not adequately supervised. On December 14, 2007, the juvenile court entered orders finding the children dependent and placing them in the pendente lite custody of K.F., a cousin of the children. The record indicates that the mother and the father were ordered to submit to substance-abuse assessments and psychological evaluations, to submit to random drug tests, and to obtain and maintain stable housing and employment as requirements for family reunification. Both parents were awarded visitation with the children.
“Subsequently entered review orders indicate that the parents were ordered to comply with the recommendations resulting from the substance-abuse assessments, which included treatment for substance-abuse problems. The record indicates that the parents did not comply with the reunification requirements.
“Pursuant to review orders entered in April 2008, pendente lite custody of the children was changed to place them in the pendente lite custody of K.F. and his mother, S.F. References in the record, including statements in a DHR court report, indicate that the children spent a great deal of time with S.F. The record indicates that K.F. and S.F. have residences on the same street.
“Review orders entered with regard to each child on August 21, 2008, specified that the permanency plan for the children was ‘permanent relative placement with transfer of custody to the relative.’ At that time, the children remained in the pendente lite custody of K.F. and S.F. The reunification requirements for the parents remained the same, i.e., submitting to random drug testing, undergoing substance-abuse treatment, and maintaining stable housing and employment. Pursuant to orders entered on December 23, 2008, each parent was ordered to pay child support for the benefit of the children.
“On March 11, 2009, the juvenile court entered orders in which it, among other things, suspended the parents’ rights to visitation with the children pending a further order of the court; the record does not indicate the reason that the parents’ visitation was suspended. The March 11, 2009, orders indicate that the children’s cases were scheduled for an April 9, 2009, ‘review hearing.’
“The record contains the transcript of the April 9, 2009, hearing. The mother was present at the hearing, but the father was not. No testimony was taken at that hearing, but a number of representations and arguments were made by the parties’ attorneys, the children’s guardian ad litem, and the custodians’ attorney. After that hearing, on April 11, 2009, the juvenile court, over the objection of the mother, entered orders awarding custody of the children to K.F. and S.F. and closing the cases. The April 11, 2009, orders specified that the parents have no contact or visitation with the children. The mother timely appealed, challenging those parts of the April 11, 2009, orders that denied her the right to visitation with the children.
“During the hearing before the juvenile court, the arguments of the attorneys indicated that the mother had failed to submit to random drug testing and that she had failed to visit the children. The attorneys’ representations indicated that the mother had repeatedly promised to visit the children, but had failed to do so, and that that conduct had had a negative effect on the children. Based on the oral arguments of counsel, the juvenile court, over the objection of the mother, determined the children to be dependent, awarded custody to K.F. and S.F., and denied the mother visitation rights. In doing so, the juvenile court noted that the mother could file a modification petition when she improved her circumstances.”

(Footnotes omitted.) This court concluded that the juvenile court had erred in reaching its dispositional judgment by relying on the representations of counsel and by failing to base its decision on a consideration of evidence. Y.N. v. Jefferson County Dep’t of Human Res., 37 So.3d at 838. Accordingly, this court reversed the judgment and remanded the case for the juvenile court to conduct an evidentiary hearing. Id.

On remand, the juvenile court conducted an ore tenus hearing, and, on April 29, 2010, it entered the following judgment:

“After considering the sworn testimony and all exhibits that were properly admitted, the Court finds the following facts:
“These cases were initiated by the filing of a dependency petition by [the Jefferson County Department of Human Resources (‘DHR’)] on December 13, 2007. By agreement of all parties and attorneys, these children were found dependent on December 14, 2007, and placed in the legal custody of a relative on the same day. That since the finding of dependency the parents have been under the same court orders (submit to a psychological evaluation and participate in suggested treatment plan; submit to substance abuse assessment and comply with recommendations; obtain and maintain housing and employment; successfully complete parenting skills class). On December 17, 2008, the father was ordered to pay $560 per month as per court orders in a separate child support case and the mother was ordered to pay $125 per month beginning January 1, 2009.
“The mother and the father were awarded supervised visitation on December 14, 2007, with their minor children to be supervised by DHR or its desig-nee. That due to the parents’ promise to visit with their children and failing to show up and causing both children detriment; including but not limited to, [W.N. Ill] having developed suicidal thoughts and having to be subjected to a suicidal evaluation, and both children having to attend counseling to deal with their feelings, that on March 10, 2009, this Court suspended the parents’ visitation until further order of the court. That after having suspended the visitation, the children were able to process their feelings more, began to do better in school, were not upset anymore, and their behavior began improving in the custodians’ home. Furthermore, counseling for the children was stopped as the suicidal thoughts of [W.N. Ill] had stopped and the progress in the behaviors of both [B.N.] and [W.N. Ill] had improved. Recently, [W.N. Ill] has had to return to counseling due to his anxiety [as to] the upcoming court dates. His counselor, Chris Litton Psy.D., has reported that [W.N. Ill] ‘has extreme anxiety regarding his biological mother.’
“DHR [social worker Waynette Smith] reports that as of the date of this hearing, she has not heard from the mother and/or father in more than a year. That the telephone number supplied to the social worker was not working and that the parents did not offer new numbers or addresses. That the psychological evaluation and substance abuse assessments suggested both parents randomly drug screen and should any screen turn up positive, then the parents shall enter inpatient treatment. That should they test clean, parents should attend outpatient treatment. Furthermore, the parents should attend [Narcotics Anonymous/Alcoholics Anonymous] meetings; attend individual counseling; six (6) months of sobriety; parenting classes; and maintain housing and employment. [Smith] testified that both parents had submitted to approximately three (3) drug screens, the last being in September of 2008, and that each parent had at least one positive screen during that time. That [Smith] has been on this case since at least February 2007, and that the parents have made no attempts to call her in the past year. [Smith] has no knowledge or verification of the parents’ home or employment due to her inability to make contact with the parents.
“[S.F.] reports that children are doing well despite their anxiety and that [W.N. Ill] is back in counseling. She further reports that she has received no child support from the parents.
“In consideration of all facts, the Court Orders and Decrees as follows:
“1. The Court notes the previous order duly entered, finding the above named children to be dependent on December 14, 2007.
“2. That custody of [B.N.] and [W.N. Ill] shall remain vested in [K.F.] and [S.F.],
“3. That the Mother and Father shall:
“a. Participate in the suggested treatment plan as defined in their individual psychological evaluations;
“b. Comply with recommendations for treatment as directed in their individual substance abuse assessments;
“c. Submit to' random drug screens at a program such as TASC on the color ‘peach’;
“d. Obtain and maintain suitable and stable housing and employment;
“e. Successfully complete a parenting skills class;
“4. The Court finds that placement of the above-mentioned children with their parents would be contrary to said children’s welfare and interests as the parents have not complied with court orders, have failed to show their sobriety, and have failed to change their lifestyle.
“5. The Court finds that reasonable efforts have been made to reunite said children with family and that such efforts at reunification have not failed as the children are placed with relative placement.
“6. That visitation for the mother and father shall remain suspended. This Court believes that to allow no contact between children and parents would be in the best interest of said children and does so based on the parents’ actions or inactions in regard to visitation in the past. Said minor children have been detrimentally affected by the parents’ failure to attend said visitations as promised. That at least one child has expressed suicidal thoughts due to his parents’ not showing up for visitations and caused him to seek counseling in regard to suicidal issues. Both children have had to participate in counseling to address anger issues and behavior issues. That since the Court suspended the parents’ visitation on March 10, 2009, both children have made substantial improvement in all aspects of their lives.
“7. The father shall pay child support as previously ordered ... at the rate of Five Hundred Sixty Dollars and no/100 ($560) per month.
“8. The mother shall pay child support as previously ordered in this case at the rate of One Hundred Twenty-Five and no/100 ($125) per month ...
“9. That Jefferson County Department of Human Resources is hereby relieved of further supervision.
“11. This matter is CLOSED to further court review. Court costs are taxed as paid.”

In response to the above-quoted judgment, Y.N. (“the mother”) filed a post-judgment motion. The juvenile court denied the postjudgment motion, and the mother timely appealed.

“In awarding visitation rights relating to the disposition of a ‘dependent child’ pursuant to [former] § 12-15-71(a) [now repealed and replaced by § 12-15-314(a), Ala.Code 1975], the trial court is guided by the ‘best interests of the child’ standard. See [former] § 12-15-71(a)(4) (‘If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child: ... (4) Make any ... order as the court in its discretion shall deem to be for the welfare and best interests of the child.’).
“ ‘ “ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d 340 (Ala.2000). ‘[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).” ’ ”

K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387-88 (Ala.Civ.App.2004) (quoting K.L.R. v. L.C.R., 854 So.2d 124, 132 (Ala.Civ.App.2003), quoting in turn K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001)).

The mother’s brief submitted to this court contains a “statement of the facts” that is identical to the “statement of the case” contained in her brief; neither of those portions of the brief references the evidence presented at the ore tenus hearing. In her arguments before this court, the mother does not challenge any of the factual findings set forth in the juvenile court’s April 29, 2010, judgment; even in the argument portion of her appellate brief, the mother makes no reference to the underlying facts of this case. Therefore, the mother has waived any challenge to whether the evidence in the record supports the juvenile court’s factual findings, i.e., whether the juvenile court exceeded its discretion in refusing to award her visitation with the children based on its determination that an award of visitation would not be in the children’s best interests. See K.B. v. Cleburne County Dep’t of Human Res., supra; see also Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) (“Issues not argued in the appellant’s brief are waived.”). We note, however, that our review of the record indicates that the juvenile court’s factual findings were supported by the evidence presented to it during the ore tenus hearing.

Before this court, the mother contends that the juvenile court erred, as a matter of law, when it suspended her visitation rights. However, Alabama law authorizes a juvenile court to suspend a parent’s visitation with a dependent child under appropriate circumstances. Section 12-15-314(a)(4), Ala.Code 1975, allows a juvenile court, in determining the disposition of a dependent child, to “[mjake any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the [dependent] child.” It is well settled that a trier of fact has broad discretion to determine a parent’s right to visitation with a dependent child and that the best interests and welfare of the child is the primary consideration in determining whether to award visitation and, if so, the extent of that visitation. Minchew v. Mobile County Dep’t of Human Res., 504 So.2d 310, 311 (Ala.Civ.App.1987); K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d at 387-88; J.P. v. S.S., 989 So.2d 591, 601-02 (Ala.Civ.App.2008); P.Y. v. State Dep’t of Human Res., 634 So.2d 1021, 1022-23 (Ala.Civ.App.1994); and Heup v. State Dep’t of Human Res., 522 So.2d 295 (Ala.Civ.App.1988).

In Minchew v. Mobile County Department of Human Resources, supra, this court affirmed a dependency judgment that suspended the mother’s visitation rights when the evidence supported the trial court’s conclusion that visitation was not in the child’s best interests. This court explained:

“[A] decision as to the visitation rights of the mother with a child who has been found dependent and brought under the jurisdiction and protection of the court is a matter for the court’s discretion. The supervision and protection of such a child will be retained by the court until the child becomes twenty-one years of age unless terminated prior thereto by the court. [Former] § 12-15-32, Code 1975. [Former §] 12-15-71(a)(5)[, Ala. Code 1975, now repealed and replaced by § 12-15-314(a)(4), Ala.Code 1975,] empowers the court which has found a child to be dependent to make such orders as the court in its discretion shall deem to be for the welfare and best interests of the child. This court has interpreted that power broadly to mean that its only parameter is the best interests and welfare of the child. Sanders v. Guthrie, 437 So.2d 1313 (Ala.Civ.App.1983); Miller v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala.Civ.App.1979). Our appellate courts have long and consistently held in child custody cases that denial of visitation of a parent is a matter within the broad discretion of the trial court if such denial is determined after hearing to affect the best interests and welfare of the child. Fricks v. Fricks, 428 So.2d 80 (Ala.Civ.App.1988). The application of such a holding seems particularly appropriate in a case where it has been found necessary to remove the child from the custody of a parent who acknowledged more than three years ago that she could no longer provide proper supervision for the child.”

Minchew v. Mobile County Dep’t of Human Res., 504 So.2d at 311.

Similarly, in the context of custody and visitation disputes between parents, i.e., in nondependency cases, the determination as to visitation is also within the trial court’s discretion. M.R.D. v. T.D., 989 So.2d 1111, 1118 (Ala.Civ.App.2008) (reversing, based on “the unique and specific circumstances” of that case, a judgment that indefinitely terminated a father’s visitation and noting that the discretion afforded trial courts in matters of visitation incident to divorce “should be exercised with a view towards the policy of preserving relationships between parents and children”); see also E.M.C. v. K.C.Y., 735 So.2d 1225, 1230 (Ala.Civ.App.1999) (in a custody-modification dispute between parents, affirming a judgment suspending visitation “until the father obtained professional counseling”); J.T.H. v. W.R.H., 628 So.2d 894 (Ala.Civ.App.1993) (the trial court did not exceed its discretion in denying the noncustodial parent visitation rights with his child); Baugh v. Baugh, 567 So.2d 1358, 1358 (Ala.Civ.App.1990) (“Clearly, there is evidence to support the trial court’s determination that it is not in the child’s best interest to visit the father while he is in prison.”).

Thus, the guiding principle in determining visitation with a dependent child, or with a child who is the subject of a visitation dispute between parents, is the child’s best interests. Alabama statutory law and caselaw precedent establish that a juvenile court may suspend a parent’s rights of visitation with his or her dependent child if visitation with the parent is demonstrated to be not in the child’s best interests. Accordingly, we must reject the mother’s argument that the juvenile court was not authorized, as a matter of law, to suspend her visitation with the children. As indicated earlier in this opinion, the mother has not argued on appeal that the juvenile court erred in reaching its factual finding that visitation would not be in the children’s best interests.

The mother also argues that the suspension of her visitation rights is a de facto termination of her parental rights and that her due-process rights were violated because she received no notice of a claim seeking to terminate her parental rights. The mother is incorrect that the suspension of her visitation rights constituted a termination of her parental rights. In K.C. v. Jefferson County Department of Human Resources, 54 So.3d 407 (Ala.Civ.App.2010), this court considered and rejected a similar argument that placing four dependent children with relatives was equivalent to a termination of the mother’s parental rights. We recognize that in K.C. v. Jefferson County Department of Human Resources, supra, the mother was awarded visitation with her children. In that case, however, there was no argument that such an award of visitation with the mother would not be in the children’s best interests. In rejecting the mother’s arguments that a permanent placement of the children with relatives was equivalent to a termination of her parental rights, this court explained:

“We cannot agree that a judgment placing a child with a relative custodian and providing for visitation with a natural parent is equivalent to a judgment terminating that parent’s parental rights. The parent whose child has been placed in the permanent care of another has residual rights and, responsibilities in and to the child, including the right to continued visitation and the responsibility of support, see Ala.Code 1975, § 12-15-102(23), and may later petition the court for a modification of the custody award. None of those rights inure to a parent whose rights have been terminated; a ‘termination of parental rights’ is defined as ‘[a] severance of all rights of a parent to a child.’ Ala.Code 1975, § 12-15-801(10). Therefore, we will not accept the mother’s invitation to evaluate the juvenile court’s judgment in the present case under the standard set out in Ex parte Beasley [, 564 So.2d 950 (Ala.1990)

K.C. v. Jefferson County Dep’t of Human Res., 54 So.3d at 413 (emphasis added).

In this case, the juvenile court’s April 29, 2010, judgment does not amount to “ ‘severance of all rights’ ” of the mother to the children. K.C. v. Jefferson County Dep’t of Human Res., 54 So.3d at 413. Rather, the mother has retained her “residual rights and responsibilities,” such as the right of visitation and the duty of support. Id. In fact, with regard to the duty to support the children, the juvenile court’s April 29, 2010, judgment requires the mother to pay child support for the benefit of the children. The mother retains the right to visitation with the children. However, under the terms of the April 29, 2010, judgment, that right has been suspended because of the juvenile court’s determination that visitation would not be in the children’s best interests. The mother may seek to modify the custody and visitation provisions of the April 29, 2010, judgment, which is a right not afforded a parent whose parental rights have been terminated. Accordingly, as this court did in K.C. v. Jefferson County Department of Human Resources, supra, we reject the mother’s argument that the placement of the children with relatives subject to the right of visitation, albeit suspended at this time, is equivalent to the termination of the mother’s parental rights. Accordingly, we conclude that the mother has failed to demonstrate a violation of her due-process rights.

AFFIRMED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

Y.N. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) completely denying her right to visit with B.N. and W.N. Ill (“the children”). The mother asserts that the juvenile court erred because, she says, a complete suspension of a parent’s right to visit a dependent child violates the overall purpose of the Alabama Juvenile Justice Act (“the AJJA”), Ala.Code 1975, § 12-15-101 et seq.; a complete suspension of a parent’s right to visit a dependent child constitutes a de facto termination of that parent’s parental rights thereby triggering certain procedures that the juvenile court in this case did not observe; and the record does not disclose any threat to the children sufficient to warrant a complete denial of visitation. I agree with the main opinion that the juvenile court did not commit reversible error, but I do so for reasons different than those contained in the main opinion.

Alabama Code 1975, § 12 — 15—101(b)(3), provides that one of the overarching purposes of the AJJA is “[t]o reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents.... ” In most cases, when a child is removed from the family home, a juvenile court shall make reasonable efforts to reunite the family. See Ala.Code 1975, § 12-15-312. Those efforts usually require that, during the reunification process, while a child remains dependent, the juvenile court provide some form of parental visitation. See Ala.Code 1975, § 12-15-102(23) (providing that parents of a dependent child retain residual right to visitation). The mother essentially argues that, in the foregoing context, it would violate the public policy behind the AJJA to totally preclude visitation between a parent and a dependent child because such an action would hinder the reunification process.

Whatever the merits of the mother’s argument, it simply does not apply to this case. In its April 29, 2010, judgment, the juvenile court effectively awarded K.F. and S.F. “permanent” custody of the children. That judgment amounted to a finding that reunification with the parents, which the juvenile court had attempted since December 14, 2007, was no longer in the best interests of the children. Section 12 — 15— 101(b)(3) specifically provides that the goal of family reunification should be pursued “unless reunification is judicially determined not to be in the best interests of the child.” Hence, any provision in the judgment denying the mother future visitation with the children could not possibly interfere with the reunification process, which had ended, and could not possibly violate the public policy the mother cites.

Although the judgment did terminate the reunification process and although the judgment did end the dependency of the children, see S.P. v. E.T., 957 So.2d 1127, 1131 (Ala.Civ.App.2005) (holding that dependency ends when “the child has a proper custodian ‘and ’ is no longer ‘in need of care or supervision’ by persons other than the custodian”), the judgment did not terminate the parental rights of the mother. A termination of visitation rights is not a constructive or a defacto termination of all parental rights. See In the Interest of S.J.K., 149 Ill.App.3d 663, 673, 500 N.E.2d 1146, 1154, 103 Ill.Dec. 75, 83 (1986); State v. Garcia, 137 N.M. 583, 113 P.3d 406 (Ct.App.2005); State v. Ehli, 681 N.W.2d 808, 810-11 (N.D.2004); and In re Marriage of Kingsbury, 141 Or.App. 304, 917 P.2d 1055 (Ct.App.1996). But see D.H. v. State, 723 P.2d 1274, 1277 (Alaska 1986) (holding that placement decision that effectively negates noncustodial parent’s right to personal visitation constitutes de facto termination of parental rights). When a juvenile court enters a judgment terminating parental rights, that judgment terminates not only the right to visitation, but also the right to custody, control, and care of the children, as well as all other parental rights. Ex parte M.D.C., 39 So.3d 1117 (Ala.2009). Such a judgment is also permanent and irrevocable. See C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala.Civ.App.1998) (“termination of parental rights is an extreme action that cannot be undone; it is permanent”). On the other hand, a judgment denying visitation rights touches on only one aspect of the bundle of parental rights — the right to association with the child. See Kingsbury, supra. Also, a judgment denying a noncustodial parent visitation is not permanent and irrevocable because matters of visitation are never res judicata as to facts coming into existence after the entry of the judgment; rather, visitation judgments may always be modified based on a subsequent material change of circumstances and upon proof that the modification would be in the best interests of the child. McKinney v. Alabama Dep’t of Pensions & Sec., 475 So.2d 568, 570 (Ala.Civ.App.1985); see also Ex parte Snider, 929 So.2d 447, 458 n. 9 (Ala.2005) (citing T.K.T. v. F.P.T., 716 So.2d 1235, 1239 (Ala.Civ.App.1998)). “There is a difference between permanently and irrevocably severing a parent-child relationship ... and entering a modifiable order preventing a parent from having contact with a child.... ” Hays v. Hays, 946 So.2d 867, 873 n. 7 (Ala.Civ.App.2006) (Murdock, J., concurring specially). Because the mother retains the right to petition the juvenile court for restoration of her visitation rights, and, for that matter, even for a return of the custody of the children, the mother has not been subjected to a termination of her parental rights. Hence, I agree that the mother was not entitled to the procedural safeguards associated with a termination of parental rights.

Nevertheless, a judgment totally suspending visitation between a noncustodial parent and a child will be “carefully scrutinize[d].” M.R.D. v. T.D., 989 So.2d 1111, 1114 (Ala.Civ.App.2008). Without visitation, a noncustodial parent would have no opportunity to maintain a meaningful relationship with his or her child. See Speakman v. Speakman, 627 So.2d 963, 965 (Ala.Civ.App.1993). Therefore, this court has directed that visitation with a noncustodial parent may be totally suspended only when the evidence leads the trial court to be reasonably certain that such a drastic action is essential to protect the child’s best interests. M.R.D., supra. By that standard, if the danger to the child from visitation can be ameliorated through some lesser restriction, that restriction should be used instead of a total denial of visitation. See Lee v. Lee, 49 So.3d 211, 214 (Ala.Civ.App.2010) (“a trial court may not ‘select[] an overly broad restriction that does more than address a particular concern and thereby unduly infringe[ ] upon the parent-child relationship’ ” (quoting Jackson v. Jackson, 999 So.2d 488, 494-95 (Ala.Civ.App.2007))).

A review of our caselaw reveals that visitation has been completely denied only in unusual and extreme cases. See Williams v. Williams, 474 So.2d 705, 707 (Ala.Civ.App.1984). Although a few cases may be found in which visitation has been denied for other reasons, see, e.g., Shires v. Shires, 494 So.2d 102 (Ala.Civ.App.1986) (affirming a judgment denying visitation to father whose 18-year-old child persistently refused visits), the vast majority of reported cases denying visitation have almost always been based on a finding that the parent is so unfit to properly care for the child that any visitation with the parent would jeopardize the health, safety, or welfare of the child. See, e.g., E.M.C. v. K.C.Y., 735 So.2d 1225, 1230 (Ala.Civ.App.1999) (trial court properly prohibited father from visiting with child “until the father obtain[s] professional counseling” based on evidence indicating that father physically assaulted child due to uncontrollable anger problem); J.T.H. v. W.R.H., 628 So.2d 894 (Ala.Civ.App.1993) (evidence of father’s history of drug, alcohol, and domestic abuse, and his mental instability supported juvenile court’s judgment denying all visitation with child); Baugh v. Baugh, 567 So.2d 1358 (Ala.Civ.App.1990) (trial court did not err in concluding that it was not in child’s best interests to visit father in prison where father was serving a 20-year sentence); Cole v. Cole, 507 So.2d 1333 (Ala.Civ.App.1987) (affirming a judgment suspending father’s visitation for 10 months based on evidence indicating that father alienated child from mother and taught child to lie, steal, deceive, and be disrespectful to authority, damaging the child’s mental and emotional welfare); Minchew v. Mobile County Dep’t of Human Res., 504 So.2d 310 (Ala.Civ.App.1987); Murphy v. Murphy, 624 So.2d 620 (Ala.Civ.App.1993) (trial court properly denied father’s request to visit or correspond with son based on evidence indicating that son feared father, who was serving a 16-year prison sentence for raping his 16-year-old adopted daughter, and that son experienced emotional difficulties because of contact with father, and on clinical psychologist’s testimony indicating that any contact with father would undermine the son’s newfound sense of security, protection, and safety); Laurent v. Laurent, 434 So.2d 266 (Ala.Civ.App.1983) (affirming judgment suspending mother’s visitation for six months based on evidence indicating that mother could not control child and that child exhibited unruly, aggressive, and anxious behavior during mother’s visitation periods and on expert testimony indicating that continued visitation would likely cause child serious emotional problems); Soltis v. Soltis, 470 So.2d 1250 (Ala.Civ.App.1985) (evidence indicating that mother became addicted to ethyl alcohol, overdosed on four occasions, and committed violent acts with guns and knives in front of child supported judgment denying mother visitation); and Robbins v. Robbins, 460 So.2d 1355 (Ala.Civ.App.1984) (trial court was justified in suspending father’s visitation for 12 months and conditioning reinstatement on proof of father’s fitness based on evidence indicating that father had kidnapped child and removed child to another state and that, when father returned child to mother, the child was dirty, smelled bad, and had head sores). In those cases, the courts basically concluded that any interaction between the parent and the child would not be beneficial, but would, in fact, be harmful, to the child. See Robbins, 460 So.2d at 1356-57 (“The primary consideration in visitation rights is the best interest and welfare of the child.”).

In this case, the juvenile court initially awarded the parents supervised visitation. According to the findings of the juvenile court, which the mother does not dispute, the parents repeatedly failed to show for promised visits, causing both children emotional turmoil, even leading one child to suicidal ideation, which necessitated mental-health counseling. The juvenile court found that, upon suspension of the parents’ visitation, the children drastically improved to the point that counseling was no longer needed; however, one of the children resumed counseling after experiencing anxiety over the prospect that the mother again would be allowed contact. In its judgment, the juvenile court specified that it was denying visitation to avoid harming the children further.

The judgment fully comports with Alabama law regarding the denial of visitation. The factual findings show that the juvenile court was reasonably certain that a complete denial of visitation was essential to protect the children from further harm and that no lesser restriction would ameliorate the threat to the emotional well-being of the children caused by visitation with the mother.

B.M. v. Department of Children & Families, 981 So.2d 1229, 1232 (Fla.Dist.Ct.App.2008), the lone case cited by the mother, does not mandate a different result. In that case, a Florida District Court of Appeal held that visitation could not be denied altogether to a mother who had a substance-abuse problem when the danger to the child from the drug use could be ameliorated through supervised visitation. In B.M., the court further stated:

“Although the mother’s supervised visitation in this case was sporadic, even sporadic visitation is better for a child than no visitation at all. There is no evidence here that the mother ever appeared for her supervised visitation while under the influence of drugs. There is no evidence that the interest of the child’s welfare would be better served by depriving the child of visitation with the mother.”

981 So.2d at 1232. In this case, however, the juvenile court did not deny visitation because of the dangers to the children arising from the mother’s continued drug abuse; rather, the juvenile court relied on the evidence indicating that the sporadic visitation between the mother and the children had emotionally harmed the children and that any further contact between the mother and the children would only further emotionally damage them. The factual dissimilarities between this case and B.M. render the reasoning in that case totally unpersuasive.

For the foregoing reasons, and those alone, I concur that the judgment of the juvenile court should be affirmed.

      . I do not mean to imply that a juvenile court could never deny visitation to a parent during the reunification process. Given the circumstances of this case, I merely see no reason to address that issue.