text:
    Muzaffer I. SHEIKH v. LAKESHORE FOUNDATION.
    2090162.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      J. Chris Cochran of Pittman, Dutton, Kirby & Heliums, P.C., Birmingham, for appellant.
    John D. Gleissner of Rogers & Associates, Birmingham, for appellee.
   PITTMAN, Judge.

Muzaffer I. Sheikh appeals from a summary judgment entered by the Jefferson Circuit Court in favor of the Lakeshore Foundation (“Lakeshore”) in a premises-liability action. Sheikh’s complaint alleged that he had tripped and fallen over some cables stretched across the floor of Lake-shore’s exercise facility, of which he was a member, and that he had been injured as a result. The trial court entered its summary judgment on the ground that there was no basis upon which Lakeshore could be held liable because, that court opined, the cables presented a condition that was “open and obvious” as a matter of law and, thus, Lakeshore had no duty to warn Sheikh about the cables. We affirm.

The pertinent facts are, for the most part, undisputed. On May 22, 2006, Sheikh was exercising at Lakeshore’s facility when he tripped over some cables on the floor and, as a result, was injured. The cables were approximately three inches above the floor and were being used to connect a wheelchair containing another person who was also exercising to an exercise machine. At the time of the incident, the person in the wheelchair had turned so that his back was toward the machine; the cables were stretched across the floor from the back of the wheelchair to the machine. Sheikh tripped while walking between the wheelchair and the machine.

Sheikh filed this action in the Jefferson Circuit Court seeking to recover damages for his injuries. Sheikh asserted that he had exercised at Lakeshore’s facility nearly 500 times throughout the 4 years before the incident but that he had never seen the cables before. Sheikh further claimed that a Lakeshore employee who had been monitoring the occupant of the wheelchair at the time of the incident had failed to warn Sheikh about the cables. Lakeshore filed an answer arguing that Sheikh’s own negligence had contributed to his injuries; that the cables were not a dangerous condition; and that, even if the cables were a dangerous condition, the cables nonetheless constituted an “open and obvious” condition. Alternatively, Lakeshore argued that Sheikh had signed a release and indemnity agreement that relieved it of liability and barred Sheikh from recovering for his injuries.

After pretrial discovery was completed, Lakeshore sought a summary judgment in its favor. Lakeshore attached as evidence to its motion colored photographs of a wheelchair connected to an exercise machine in its facility. Although Lakeshore did not dispute Sheikh’s claim that he had never seen those cables in the facility, it averred that the cables were integral to its environment. Sheikh filed a reply in opposition. Upon its review of the filings, the trial court entered a summary judgment in favor of Lakeshore, opining that the cables were “open and obvious” as a matter of law. Sheikh appealed to the Alabama Supreme Court. The appeal was transferred to this court under Ala.Code 1975, § 12-2-7(6).

The issue raised on appeal is whether the trial court erred in entering a summary judgment in favor of Lakeshore on the basis that the cables presented a dangerous condition that was “open and obvious” as a matter of law. We review the decision of the trial court de novo, with no presumption of correctness. Ex parte Neese, 819 So.2d 584, 587 (Ala.2001) (“We apply the same standard of review as the trial court in determining whether the evidence presented to [that court showed] the existence of a genuine issue of material fact.”) (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276 (Ala.2000)).

Summary judgment is appropriately granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. Once a party seeking summary judgment makes a prima facie case that there is no genuine issue of material fact, it then becomes the nonmoving party’s burden to present “substantial evidence” otherwise. Miller v. Archstone Communities Trust, 797 So.2d 1099, 1100-01 (Ala.Civ.App.2001) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 798 (Ala.1989)). “Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Miller, 797 So.2d at 1101 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). We are required to construe the record in favor of the nonmoving party and to “resolve all reasonable doubts against the [moving party].” Miller, 797 So.2d at 1101 (citing Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)); see also Ex parte Neese, 819 So.2d at 587 (quoting Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)).

Sheikh asserts that Lakeshore created a dangerous condition when it used cables to connect a person’s wheelchair to a exercise machine in the exercise facility. He argues that Lakeshore should have warned him of the cables and contends that Lake-shore’s failure to warn him proximately caused him to trip over the cables and become injured. Sheikh argues that the trial court’s judgment should be reversed because, he claims, Lakeshore did not explain why it did not warn him about the cables, Lakeshore did not show that he should have appreciated the risk created by the cables, and Lakeshore adduced no evidence to disprove his position that he had no reason to anticipate the presence of the cables.

Our first step in analyzing the question presented is to consider the relationship between Lakeshore and Sheikh; our second step is to determine the duty, if any, owed by Lakeshore to Sheikh. See Cotten v. St. Bernard Preparatory Sch., 20 So.3d 157, 160 (Ala.Civ.App.2009) (quoting Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala.1995) (stating that a landowner’s duty to a party who has been injured on his or her land depends on the relationship between the injured party and the land)). Both parties agree that Sheikh was an invitee when he entered Lakeshore. The following rule regarding a invitor’s duty to an invitee, articulated in Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937), is well settled:

“This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. Geis v. Ten nessee Coal, Iron & R.R. Co., 143 Ala. 299, 39 So. 301 [ (1905) ].
“This rule ... also includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.
“In determining whether such care has been exercised, it is proper to consider the uses and purposes for which the property in question is primarily intended.”

In Lamson, the court reversed a trial court’s judgment finding a mechanic shop liable for negligence when a delivery man, who had previously made 3 or 4 deliveries to similar shops and was admittedly familiar with the environment, tripped over a hose on the shop’s floor. The court stated:

“ ‘The duty to keep premises safe for invitees applies only to defects and conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.’ ”

Lamson, 234 Ala. at 63, 173 So. at 391 (quoting 45 C.J. § 244, p. 837). “[T]he focus of our premises liability law is not on the care that may have been exercised by the invitee ..., but on relieving a premises owner of a legal liability where an invitee knew of the danger that caused the injury or should have observed that danger through the exercise of reasonable care.” Ex parte Industrial Distribution Servs. Warehouse, 709 So.2d 16, 20-21 (Ala.1997) (emphasis added). In Jones Food Co. v. Shipman, 981 So.2d 355, 362 (Ala.2006), the Alabama Supreme Court held that “an objective standard [is applied] to assess whether a hazard is open and obvious” and that, in applying that standard, “the question is whether the danger should have been observed, not whether in fact it was consciously appreciated.” 981 So.2d at 362. That opinion further explained:

“ ‘[I]n order for a defendant-invitor in a premises-liability case to win a summary judgment or a judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee about them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap.... [The Alabama Supreme] Court has expressly rejected the notion that an invitor owes a duty to eliminate open and obvious hazards or to warn the invitee about them if the invitor “should anticipate the harm despite such knowledge or obviousness.” Ex parte Gold Kist, Inc., 686 So.2d 260, 261 (Ala.1996).

Jones Food, 981 So.2d at 362-63 (quoting Sessions v. Nonnenmann, 842 So.2d 649, 653-54 (Ala.2002)) (emphasis omitted); see also Ex parte Gold Kist, Inc., supra (reversing various appellate decisions and expressly declining to adopt, as a correct statement of law, the notion that an invitor is liable to its invitees for physical harm caused to them by any known or obvious activity or condition on the land when the invitor “should anticipate the harm despite such knowledge or obviousness”).

The facts of Lamson parallel the facts of this case. Like the plaintiff in Lamson, Sheikh admitted that he was familiar with Lakeshore’s facility and the evidence showed that he had exercised at Lakeshore nearly 500 times over a period of 4 years. Additionally, Lakeshore submitted colored photographs of a wheelchair connected to an exercise machine by cables, a practice that is, Lakeshore avers, routinely done at their facility, which is accessible to handicapped persons and serves as a rehabilitative center. The photographs show that the color of the cables contrasts distinctively with the color of the underlying carpet.

Sheikh argues that he had never seen a wheelchair connected to a machine by cables before the incident in which he was injured. Sheikh analogizes his situation to the plaintiffs situation in Cotten, supra, but the facts here are distinguishable from the facts of that case. In Cotten, the plaintiff presented “substantial evidence” that precluded a determination that the tripping hazard, an uneven sidewalk, was “open and obvious” as a matter of law because witnesses testified that the uneven sidewalk had occurred as a result of natural causes, that it had not been visible to other people who had used the sidewalk that day, and that the uneven sidewalk would have been repaired if it had been previously discovered. 20 So.3d at 162.

In further support of his position, Sheikh distinguishes Dolgencorp, Inc. v. Taylor, 28 So.3d 737 (Ala.2009), a case in which the Alabama Supreme Court reversed a judgment on a jury verdict in favor of an invitee and held that certain boxes of merchandise, which were owned by the invitor and over which the invitee in that case had tripped, were “open and obvious” as a matter of law. 28 So.3d at 745-746. In Dolgencorp, the supreme court’s review of the evidence revealed that the boxes were in plain view of store customers and that the plaintiff-invitee, who admittedly frequented the store, was on notice of the “cluttered” condition of the store. Sheikh argues that the present case differs from Dolgencorp because Lakeshore’s facility is not “historically cluttered”; thus, he says, a genuine issue of material fact exists as to whether the cables were open and obvious. We reject Sheikh’s arguments.

In this case, the evidence of Sheikh’s frequent prior use of the Lakeshore facility, coupled with the colored photographs of the cables that were submitted in support of the summary-judgment motion, made a prima facie showing that the condition of which Sheikh complains was “open and obvious” such that Lakeshore owed no duty to warn Sheikh of the cables. In response, Sheikh failed to present “substantial evidence” indicating that there exists a genuine issue of material fact as to the issue of openness and obviousness. See Ex parte Neese, 819 So.2d at 590 (affirming a trial court’s judgment determining that a wet doormat was an open and obvious condition on invitor’s property when invitee had visited weekly for many years and had admitted to having avoided stepping onto the doormat on the day of her injury out of precaution because it had been raining).

The cables were shown by Lake-shore to be a condition that a reasonable person would have observed and thereafter appreciated. Although Sheikh claims that he had never seen a wheelchair hooked up to a machine with the cables before, and even though there was room between the machine and the wheelchair through which Sheikh could pass, a reasonable person using Lakeshore’s exercise facility would be expected to watch where he or she is going and to be aware of certain hazards that may exist below eye level over which he or she might trip, such as heavy dumbbells, loose towels, free weights, gym bags, mats, iron or metal benches, electric-fan cords, water bottles, personal belongings of other invitees, etc. In that respect, the facts of this case parallel those in Dolgencorp, rather than permit a distinction to be drawn from that ease as suggested in Sheikh’s brief. An invitor exercise facility has no duty to warn invitees of commonplace tripping hazards that are open and obvious. Although we acknowledge that the cables were connected to the machine by a Lakeshore employee, that fact, standing alone, is insufficient to impose a duty to warn on Lakeshore. Here, Lakeshore had no duty to warn Sheikh of the cables over which he tripped. The facts of this case are similar to the facts of Paige v. Wal-Mart Stores, Inc., 638 So.2d 4 (Ala.Civ.App.1994), in which we concluded that the defendant-invitor in that case had no duty to warn an invitee of an orange extension cord over which the invitee had claimed to have tripped because the presence of an orange cord on an off-white colored floor established the existence of a condition that was “open and obvious” as a matter of law. 638 So.2d at 6.

Additionally, Sheikh argues that the trial court’s entry of a summary judgment contravenes Alabama precedent because, he avers, the question whether a dangerous condition is “open and obvious” is frequently stated as being one properly determined by a jury. In support of his argument, Sheikh cites several cases in which, he claims, Alabama appellate courts have rejected the notion that issues of “open and obviousness” can be determined as a matter of law. Those cases are distinguishable from the present case because, in each of those cases, the court determined that a reasonable person would not have been on notice, or would not have seen or otherwise anticipated, the hazardous condition at issue.

The proper formulation upon which Sheikh relies is that “ ‘[qjuestions of openness and obviousness of a defect or danger and of an [invitee’s] knowledge are generally not to be resolved on a motion for summary judgment.’ ” Ex parte Kraatz, 775 So.2d 801, 804 (Ala.2000) (quoting Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 463 (Ala.1993)) (emphasis added). Appellate courts have concluded that conditions may be “open and obvious” as a matter of law in certain situations similar to the facts of the present case. For example, total darkness has been held to be a condition “sufficient to put reasonable people on notice of a substantial risk of concealed hazards.” Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1390 (Ala.1984). Also, certain conditions have been held to be “open and obvious” as a matter of law when the injured party was a subcontractor and was injured while using machinery that was known to him to be defective and potentially injurious. See W.G. Yates & Sons, Inc. v. Burkhardt, 61 So.3d 1095, 1097 (Ala.Civ.App.2010); see also Heath v. Sims Bros. Constr. Co., 529 So.2d 994, 995 (Ala.1988) (general contractor was not liable for a subcontractor’s injuries after a wheel of a scaffold fell into a hole, of which subcontractor was aware), and Sessions, 842 So.2d at 651-52 (general contractor was not liable for a subcontractor’s injuries resulting from falling through a stairwell when stairwell was unguarded, which put subcontractor on notice that stairwell was an “open and obvious” dangerous condition). Similar to a person entering into an area of total darkness or a subcontractor with notice of a condition, a person utilizing an exercise facility is on notice to watch his or her path of travel because, as mentioned above, there are many potential small hazards below eye level inherently present at an exercise facility that may be present in his or her path.

Based on the foregoing facts and authorities, we conclude that the trial court did not err. Therefore, we affirm the summary judgment in favor of Lakeshore.

AFFIRMED.

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

      . In his deposition, the Lakeshore employee admitted that he had failed to warn Sheikh about the cables.

      . Because we affirm on the basis that the cables were an "open and obvious” condition, we need not address Lakeshore’s argument that the release and indemnity agreement relieves it of liability and bars Sheikh from recovery.

      . Cf. Ex parte Kraatz, 775 So.2d 801 (Ala. 2000) (an unmarked speed bump that was not visible in dim light, as opposed to total darkness (which would put a person on notice of hazardous risks), was not "open and obvious” as a matter of law); Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1193 (Ala.2002) (a roll of garment bags left by mistake in the aisle of a clothing store was not "open and obvious” as a matter of law when invitee might not have seen the bags before falling); Home v. Gregerson's Foods, Inc., 849 So.2d 173, 175-77 (Ala.Civ.App.2002) (standing water in a grocery-store aisle was not "open and obvious” as a matter of law when invitee could not see it until she was standing in it); Howard v. Andy's Store for Men, 757 So.2d 1208, 1210 (Ala.Civ.App.2000) (an engineer’s testimony that an average person would not appreciate the danger posed by an uneven sidewalk was "substantial evidence” that the uneven sidewalk was not "open and obvious” as a matter of law); Harley v. Bruno’s Supermarkets, Inc., 888 So.2d 525, 526 (Ala.Civ. App.2004) (a curb painted yellow was not "open and obvious” as a matter of law when it was surrounded by fire-lane stripes, also painted yellow).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    VOLKSWAGEN GROUP OF AMERICA, INC. v. Bennie WILLIAMS.
    2090142.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      David E. Allred and D. Craig Allred of Allred & Allred, P.C., Montgomery, for appellant.
    Rhonda Steadman Hood of Stirling & Hood, LLC, Birmingham, for appellee.
   PITTMAN, Judge.

This appeal concerns the denial of a motion to compel arbitration of claims brought against an automobile manufacturer, Volkswagen Group of America, Inc. (“the manufacturer”), by the purchaser of one of the manufacturer’s motor vehicles, Bennie Williams (“the purchaser”), in the Jefferson Circuit Court. The complaint in this action averred that in February 2007 the purchaser bought a 2007 model Passat automobile from a dealer authorized by the manufacturer to sell its vehicles, Jeff Sikes, Inc. (“the dealer”). According to the purchaser, the automobile he purchased exhibited defects in its electrical system that could not be corrected by the manufacturer’s agents despite having been given a reasonable opportunity to cure them. The purchaser’s complaint asserted that he should be entitled to revoke his acceptance of the automobile under the Alabama Uniform Commercial Code (Ala. Code 1975, § 7-1-101 et seq.), that the manufacturer had breached express and implied warranties, and that he was entitled to a remedy under Alabama “lemon laws” (see generally Ala.Code 1975, § 8-20A-1 et seq.). The complaint specifically sought an award of damages “not to exceed” $50,000 (the upper monetary limit of our general civil appellate jurisdiction, see § 12-8-10, Ala. Code 1975).

After unsuccessfully moving for dismissal of the purchaser’s claims, the manufacturer filed, in April 2009, a written demand seeking to compel arbitration. In support, the manufacturer filed a one-page document labeled “Arbitration Agreement” that bore the purchaser’s signature and that provided, in pertinent part:

“In connection with the undersigned’s acquisition of the below described motor vehicle ... the undersigned and the [djealer mutually covenant, stipulate and agree, in connection with the resolution of any dispute arising out of or relating to or concerning all of the contracts and agreements entered into by the parties of and concerning the [subject] motor vehicle, and business relationships resulting therefrom, as follows: That the vehicle ... was manufactured outside of Alabama or from parts traveling in interstate commerce; has operated and will continue to operate on interstate highways; has been traveling in interstate commerce; the manufacture, transportation, sale and use thereof has been and will continue to be regulated by laws of the United States of America; and, that the contract(s) and agreements entered into by the parties concerning said motor vehicle evidence transactions involving and affecting interstate commerce. The undersigned agree that all disputes ... resulting from or arising out of or relating to or concerning the transaction entered into (including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services acquired by the undersigned; the past, present and future condition of the motor vehicle; the conformity of the motor vehicle to any contract description; the representations, promises, undertakings, warranties or covenants made by [the d]ealer in connection with the undersigned’s acquisition of the motor vehicle, or otherwise dealing with the motor vehicle; any lease terms or the terms of credit and/or financing in connection therewith; any terms or provisions of any credit life and/or disability insurance purchased simultaneously herewith; any terms or provisions of any extended service contract purchased simultaneously herewith; and all claims or disputes as to any body and/or mechanical repairs made to the vehicle prior to, as a result of this transaction or at any time hereafter) shall be submitted to BINDING ARBITRATION, pursuant to the provisions of 9 U.S.C. Section 1, et seq.”

(Capitalization in original.)

In response to the manufacturer’s “demand” seeking to compel arbitration, the purchaser filed a response asserting that the arbitration agreement was not enforceable by the manufacturer because, he said, the agreement was “party specific.” The trial court entered an order in May 2009 concluding, without setting forth its reasoning, that the manufacturer’s “demand” was “moot.” The manufacturer then filed a second “demand” for arbitration in August 2009 that, in essence, sought reconsideration of the trial court’s nonfinal order declining to compel arbitration, asserting that it was entitled to enforcement of the arbitration agreement under the doctrine of equitable estoppel. The purchaser, in response, reiterated his contention that the manufacturer was not entitled to enforce the arbitration agreement between the purchaser and the dealer, and he also suggested that the manufacturer had waived its right to seek arbitration by purportedly invoking the litigation process in a substantial manner. On October 7, 2009, the trial court entered an order declining to compel arbitration, concluding that the arbitration agreement was not sufficiently broad to include the manufacturer.

The manufacturer appealed on November 9, 2009. Although the trial court initially declined to compel arbitration in May 2009, we conclude that the trial court retained jurisdiction to reconsider that determination at any time before a final judgment and that the manufacturer timely sought review of the trial court’s October 2009 denial of its August 2009 motion seeking, in effect, reconsideration of the May 2009 denial; thus, our appellate jurisdiction was timely invoked. See Jim Walter Homes v. Saxton, 880 So.2d 428, 480 (Ala.2003) (appeal deemed timely when filed within 42 days of entry of trial court’s order denying motion to reconsider denial of arbitration). Our review is plenary: under Alabama law, an appellate court “reviews de novo [a] trial court’s denial of [a] motion to compel arbitration.” Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 128 (Ala.2002).

The manufacturer asserts on appeal that the trial court erred in determining that the arbitration agreement between the purchaser and the dealer could not be enforced in the manufacturer’s favor so as to compel arbitration of the purchaser’s claims. In contending that the doctrine of equitable estoppel should apply in this case to prevent the purchaser from bypassing arbitration, the manufacturer focuses primarily upon the language in the arbitration agreement that refers to “resolution of any dispute arising out of or relating to or concerning ... the contracts and agreements entered into by the parties ... and business relationships resulting therefrom” (emphasis added). The purchaser, for his part, again asserts that the arbitration agreement is “party specific” and posits that equitable estoppel cannot properly be applied to his claims against the manufacturer. The purchaser invokes the language in the arbitration agreement referring to “the undersigned and the [djealer” as the parties thereto and as having the rights to select arbitrators in the event of a dispute.

As an initial matter, our review of the arbitration agreement convinces us that the principal language relied upon by the manufacturer is not controlling. The term “business relationships” appears only in the first sentence of the arbitration agreement; however, that sentence does not contain the operative arbitration clause, but merely details the manner in which the parties have “covenanted], stipulate^] and agree[d], in connection with the resolution of any dispute,” that the purchase of the automobile at issue “involv[es] and affect[s] interstate commerce.” The arbitration clause appears in the second sentence quoted above: in it, the purchaser and the dealer “agree that all disputes ... resulting from or arising out of or relating to or concerning the transaction entered into ... shall be submitted to BINDING ARBITRATION” — a set of disputes that specifically includes those pertaining to “the past, present and future condition of the motor vehicle” as well as “all claims or disputes as to any ... mechanical repairs made to the vehicle ... at any time hereafter.”

However, we likewise cannot agree with the purchaser that the arbitration clause at issue is “party specific.” The clause, rather, speaks to “all disputes ... resulting from or arising out of or relating to or concerning the transaction," a formulation that closely parallels the broad language recognized by the Alabama Supreme Court in Smith v. Mark Dodge, Inc., 984 So.2d 375 (Ala.2006), as authorizing a nonsigna-tory to assert a right to compel arbitration through application of equitable estoppel:

“If an arbitration agreement is written in broad language so that it applies to ... ‘all disputes, claims or controversies arising from or relating to this contract or the parties thereto,’ [an appellate court] will proceed to determine whether arbitration may be compelled under the doctrine of equitable estop-pel.”

934 So.2d at 381 (citations, emphasis, and capitalization omitted).

Having determined that the doctrine of equitable estoppel may potentially apply, we must determine whether it should have been applied in this case. Although the purchaser cites Ex Parte Stamey, 776 So.2d 85 (Ala.2000), for the proposition that, for equitable estoppel to be applied, a nonsignatory such as the manufacturer must demonstrate that the claims asserted against it are “intertwined” with claims against a signatory that must be submitted to arbitration, we agree with the manufacturer’s view, stated in its reply brief, that Stamey does not mandate, in all cases, that “intertwining” claims must exist for equitable estoppel to be applied:

“In order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty, the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonparties— claims that would otherwise fall within the scope of the arbitration provision— to arbitration. All that is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be ‘intimately founded in and intertwined with’ the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it. In other words, the language of the arbitration agreement must be so broad that the nonparty could assert that in reliance on that language he believed he had the right to have the claims against him submitted to arbitration, and, therefore, that he saw no need to enter into a second arbitration agreement.”

776 So.2d at 89 (emphasis added; citations omitted); accord Kenworth of Mobile, Inc. v. Dolphin Line, Inc., 988 So.2d 534, 541 (Ala.2008). The first of the two elements stated by the Alabama Supreme Court as being sufficient for the application of the doctrine of equitable estoppel is, therefore, stated in the disjunctive: a party seeking to invoke the doctrine must prove either the “intertwining” or the breadth-of-scope variant of the first element along with the breadth-of-parties second element.

In this appeal, the manufacturer has expressly disclaimed any reliance upon the “intertwining” variant, and correctly so. There is no pending action against the other signatory, the dealer, that would authorize invocation of the “intertwining” variant of the first element identified in Stamey. See Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540, 545 (Ala.2000) (pithily noting that “ ‘intertwining requires at least two threads to weave together”).

However, the purchaser in this case assented to a broad agreement mandating arbitration of “all disputes” that result from, or arise out of, or relate to, or concern, “the transaction entered into,” such as, for example, disputes as to mechanical repairs before or after the sale of the automobile at issue. The claims of the purchaser that the automobile is a “lemon” that could not be repaired, that the manufacturer breached express or implied warranties that inured to his benefit as a result of the purchase, and that he is entitled to nullify his acceptance of the fruits of the purchase transaction all touch and concern the transaction or the sufficiency of repair attempts made by alleged agents of the manufacturer; thus, the dispute falls within the breadth of the arbitration clause at issue so as to satisfy the breadth-of-scope variant of the first element set forth in Stamey. As to the second element, we have already noted that the arbitration clause is not “party specific”— rather, it speaks in terms of “all disputes” stemming from the transaction without referring to whose particular disputes are included. Thus, we conclude that the second element identified in Stamey is also present.

The trial court determined that the arbitration agreement between the purchaser and the dealer “was not sufficiently broad to include” the manufacturer. After a review of the claims of the purchaser and the arbitration agreement to which the purchaser assented in connection with the purchase of the manufacturer’s automobile, we must conclude that that determination was erroneous and that, under Alabama law, the purchaser is equitably estopped from denying the arbitrability of his claims against the manufacturer. The order of the trial court is, therefore, reversed, and the cause is remanded for the entry of an order referring the case to arbitration.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . Rule 54(b), Ala. R. Civ. P., provides that any order that does not finally adjudicate all claims against all parties in an action is subject to revision at any time before final judgment.

      . The trial court did not comment on the validity of the purchaser's waiver argument, and he has not reasserted that argument on appeal.

      . Although the purchaser cites McGrue, 826 So.2d at 131, and Ex parte Lovejoy, 790 So.2d 933, 938 (Ala.2000), as controlling, both of those cases involved arbitration agreements that specifically limited their scope and applicability to disputes between signatories; in contrast, the specific provision at issue in this case, which reaches "all claims or disputes as to any body and/or mechanical repairs made to the vehicle prior to, as a result of this transaction or at any time hereafter,” is " ‘broad enough to indicate an intent on the plaintiff[’s] part to arbitrate with a nonsignatory.’ ” 790 So.2d at 937 (quoting First Family Fin. Servs., Inc. v. Rogers, 736 So.2d 553, 560 (Ala. 1999)).


author: THOMPSON, Presiding Judge.

text:
    Mary Texas Garner ROBINSON v. John Lawson ROBINSON.
    2090682.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.

      William P. Burgess, Jr., and Rebekah L. Graham of Williams P. Burgess, Jr., P.C., Huntsville, for appellant.
    Johnnie Smith, Montgomery, for appel-lee.
   THOMPSON, Presiding Judge.

Mary Texas Garner Robinson (“the wife”) appeals from a judgment of the Jackson Circuit Court holding invalid a antenuptial agreement into which she had entered with John Lawson Robinson (“the husband”). For the reasons set forth herein, we reverse the trial court’s judgment.

The husband and the wife became engaged in the spring of 1987. It is undisputed that, at the time of the parties’ engagement, the wife’s family owned a substantial amount of real property. During the summer of 1987, the wife employed Bill White, an attorney who had previously performed some legal work for the wife and the wife’s family, to prepare an ante-nuptial agreement (“the agreement”) for the parties to execute. On August 26, 1987, White sent a draft of the agreement to the wife, who shared it with the husband. In addition to providing that the husband would relinquish any claim to certain property the wife owned or stood to inherit, the agreement provided that the husband acknowledged that White represented only the wife and that the husband had the right to employ his own legal counsel to represent his interests with regard to the agreement. The husband thereafter began preparing a handwritten draft of an antenuptial agreement. The handwritten draft was provided to White, and he incorporated it into his final draft of the agreement.

The parties executed the final draft of the agreement on September 9,1987, three days before their wedding. In pertinent part, the agreement provided:

“1. This Agreement is entered into in consideration of marriage, and its effectiveness is expressly conditioned on such marriage between the parties actually taking place; and if, for any reason, the marriage is not consummated, this Agreement will be of no force or effect.
“2. A full and complete disclosure of all property owned by each of the parties, both real and personal, tangible and intangible, has been made to each other. It is stipulated and agreed by and between the parties hereto that the [wife] is, at the time of the execution of this Agreement, the owner of the following described property and it is further stipulated and agreed by and between the parties hereto that the [husband] does not own or have an interest in any of said property, which property is more particularly described as follows:
“A. A one-fourth (1/4) undivided interest in and to the following tracts or parcels of real property located in Jackson County, Alabama, to wit: [Paragraphs 2.A.(a)-(f) describe six parcels of real property containing several hundred acres of land.]
“B. Shares of the capital stock of Colonial Bank, Southtrust Corporation and Central Bank.
“C. Funds held in Certificates of Deposit issued by City Federal Savings of New Jersey, and any accumulations to or reinvestments of such funds.
“D. Any vested or contingent interests held or acquired by virtue of any Trust Indentures executed or established by Mary Texas Hurt Garner, the mother of the [wife].
“It is further, stipulated and agreed by and between the parties hereto that the [husband] is at the time of the execution of this Agreement, the owner of the following described property and it is further stipulated and agreed by and between the parties that the [wife] does not own or have any interest in the following described property:
“E. One (1) acre more or less known as Lot # 9 located in the Kidd-Bagwell Subdivision being in Section 21, Township 8, Range 7, DeKalb County, Alabama.
“F. One (1) acre more or less known as Lot # 10 located in the Kidd-Bagwell Subdivision being in Section 21, Township 8, Range 7, De-Kalb County, Alabama.
“G. One (1) acre more or less known as Lot #11 located in the Kidd-Bagwell Subdivision being in Section 21, Township 8, Range 7, De-Kalb County, Alabama.
“H. An undivided one-third (1/3) interest in the [husbandj’s family farm [on] which he grew up. This farm is located [in] Dawson, Alabama 35963, DeKalb County, Alabama. (A legal description is not available at the time of the execution of this Agreement; however, its location is known by both parties to this Agreement.)
“I. A one (1) acre lot known as Lot # 6 located in Ta-Co-Bet Cliffs Subdivision, Section 31, Township 5, Range 7E, Jackson County, Alabama.
“J. A gun collection which includes rifles, shotguns, and pistols considered to be worth several thousand dollars.
“3. The [wife] has, further, made a full and complete disclosure to [the husband] of the nature, extent, and probable value of all property and other assets, including contingent, limited or remainder interests in same, which she may in the future acquire by gift, bequest, devise, inheritance, purchase, or operation of law from her mother, Mary Texas Hurt Garner; her brother, William Texas Garner; her uncle, John Frank Hurt, and other ancestors, or from any trusts established or to be established by such persons. Although such property and assets are, at the time of the execution of this Agreement, expectancies and not necessarily vested interests, it is the intention and purpose of the parties hereto that such expectancies be treated in all respects under this Agreement as vested interests in the [wife], and that any such property or interests, when later vested, be deemed the separate property and estate of the [wife], and the [husband] does hereby waive and release all present or future rights, claims, title, and interest, in law and equity which he might, by reason of his marriage to [the wife], acquire in or to such property, assets and expectancies.
“4. Except as herein provided, the [husband] does hereby covenant and agree with the [wife] that he will neither during the lifetime of the [wife] nor after her death take, claim, demand or receive, and does hereby waive and release all rights, claims, titles and interest, actual, inchoate, or contingent, in law and equity which he might, by reason of his marriage to [the wife], acquire in or to the above-described property or estate of [the wife], including, but not limited to:
“A. The right or claim of homestead, dower or curtesy, or any statutory substitute therefor, as provided by the statutes of the state in which the [wife] dies domiciled or in which she may own real property;
“B. The right to any statutory exemptions, alimony, support or allowance;
“C. The right of election to take against the Last Will and Testament of the [wife];
“D. The right to a statutory or distributive share in the estate of the [wife] should she die intestate.
“Such waiver and release by the [husband] are specifically limited to rights, claims, title, or interest in and to the property and estate identified in paragraph 2(A) through 2(D), inclusive, and the expectancies as described in paragraph 3 hereinabove and shall not constitute a waiver or release by the [husband] of any right, claim, title, or interest in any other property acquired by either of the parties hereto.
“Except as herein provided, the [wife] does hereby covenant and agree with the [husband] that she will neither during the lifetime of the [husband] nor after his death take, claim, demand, or receive, and does hereby waive and release all rights, claims, titles and interest, actual, inchoate, or contingent, in law and equity which she might, by reason of her marriage to [the husband], acquire in or to the above-described property or estate of [the husband], including, but not limited to:
“A. The right or claim of homestead, dower, or curtesy, or any statutory substitute therefor, as provided by the statutes of the state in which the [husband] dies domiciled or in which he may own real property;
“B. The right to any statutory exemptions, alimony, support, or allowance;
“C. The right of election to take against the Last Will and Testament of the [husband];
“D. The right to a statutory or distributive share in the estate of the [husband] should he die intestate.
“Such waiver and release by the [wife] are specifically limited to rights, claims, title or interest in and to the property and estate identified in paragraph 2(E) through 2(J), inclusive, and shall not constitute a waiver or release by the [wife] of any right, claim, title, or interest in any other property acquired by either of the parties hereto.
“8. Anything hereinabove to the contrary notwithstanding, it is specifically agreed by and between the parties hereto that the [husband] shall, if he is the surviving spouse of the [wife], have the right to use and possess during his lifetime, free from the payment of rent or other charges, any dwelling house in which the parties hereto most usually resided next before the death of the [wife] and, in addition thereto, the right to use and possess up to two (2) acres of real estate adjoining the same, if the same is owned by the parties or either of them.
“It is further understood, stipulated, and agreed by and between the parties hereto that [the husband] is, at the time of the execution of this Agreement, the owner of and brings into the forthcoming marriage a family dwelling home described as follows: [description of one-acre parcel of property omitted]. Anything hereinabove to the contrary notwithstanding, it is specifically agreed by and between the parties hereto that the [wife] shall, if she is the surviving spouse of the [husband], have the right or claim of homestead, dower, or any statutory substituted therefor with respect to such property or estate.
“9. Each of the parties hereto do hereby acknowledge and confirm that [the wife] has employed J. William White, an Attorney at Law practicing in Scottsboro, Jackson County, Alabama, to represent her in the negotiation and preparation of this Agreement and both parties acknowledge that they understand that said attorney does not and cannot represent or serve as the attorney for both parties in the negotiation and preparation of this Agreement. The [husband] acknowledges that he understands that [White] represents only the [wife] and that he further understands that he has the right to employ counsel of his own choosing to represent his interest herein and further understands that it may be in his best interest to do so. Having been advised of the foregoing and having fully understood the same, the [husband] acknowledges and confirms that he has freely, voluntarily and with full knowledge executed this Agreement and has voluntarily and knowingly elected not to employ independent counsel to represent and to protect his interest herein.”

The parties married on September 12, 1987, and one child was born of their marriage. That child was 20 years old at the time of the hearing in this case.

On April 14, 2008, the wife filed an action for a divorce from the husband. In her complaint, she alleged the existence of the agreement, and she asked the court to “determine and find [that] the [agreement] of the parties is valid and operative between the parties,” to enforce the agreement, and to divide the parties’ remaining property that was not subject to the agreement. The husband filed an answer in which he admitted the existence of the agreement but denied that it was valid. He also filed a counterclaim seeking a divorce from the wife.

The wife filed a motion for the court to determine the validity of the agreement. The trial court held a hearing on that motion on November 5, 2009, at which it received ore tenus evidence.

At the hearing, White, the attorney who had drafted the agreement, testified that he was friends with the husband and the wife. He testified that, at some point before the parties had executed the agreement, he had had a conversation with the husband in which he had informed him that he was representing the wife with regard to the agreement and that he could not represent the husband with the regard to the agreement.

White testified that, before he prepared the final draft of the antenuptial agreement, he received a handwritten document that he understood to have been prepared by the husband. He testified that he incorporated some of that document into the final draft of the agreement. The handwritten document set out certain parcels of real property owned by the husband, as well as some of the husband’s personal property, that were to be excluded from the marital estate and to which the wife would waive any and all rights. White testified that he included that provision in the final draft of the agreement.

White testified that he did not recall the husband ever stating that the agreement was unfair, nor did he recall the husband ever stating that he needed to consult with other legal counsel before signing the agreement. White testified that he also did not recall any complaints by the husband that he had been coerced or forced to sign the agreement.

The wife testified that she worked with her brother managing her family’s real-estate holdings. She testified that she had inherited a substantial amount of real property from her mother and her uncle.

The wife testified that, at the time the husband and she became engaged, he was a law-school graduate and was employed with the Jackson County district attorney’s office.

The wife stated that, before their marriage, the parties discussed the fact that her family owned a substantial amount of real property and that it was owned by various members of the family. She stated that, in discussing with the husband why she wanted the agreement, she told him that it was important to her and to her family that the family’s real estate stay within her family. She testified that she raised the issue of an antenuptial agreement with the husband shortly after they became engaged and that he told her that she should have the agreement prepared in the manner she wanted and that he did not have anything to add to it. The wife testified that she provided the August 26, 1987, draft of the agreement to the husband and that the husband changed his mind at that time and decided to add some items to it. The wife stated that the husband’s handwritten document was consistent with what he had told her he wanted to do. She stated that she encouraged him to seek legal advice with regard to the agreement but that he chose not to do so. The wife testified that the husband did not make any statement about the fairness or unfairness of the argument to her before the filing of the complaint for divorce in this action and that he never told her that he was not going to sign it.

The wife stated that, before the parties signed the agreement, she had discussed with the husband the inheritance that she anticipated receiving from her family. She stated that the husband was aware that her family owned a substantial amount of real property and that the husband had hunted on some of the property her family owned.

The wife testified that she did not recall discussing the value of her bank stock with the husband. She testified that she did not provide any documents to him relative to the bank stock but that she did not recall his asking for any such information. She indicated that she did not recall a specific conversation in which she told him the value of her certificates of deposit or of their existence. She testified that she did not know whether the husband knew that there was a written trust agreement between her mother and her providing that she would manage her mother’s properties for her, but she stated that he knew that she was managing her mother’s properties. The wife testified that she believed the husband was aware of how much real property her family owned, although she indicated that she had never told him the monetary value of each property. She testified that she had a “very good idea” at the time the parties married of what she would be inheriting at her mother’s death. She testified that she was compensated under the trust agreement with her mother but that she did not give the husband specific information about her income. She testified that the parties did not exchange any tax returns or other financial statements before signing the agreement.

The husband testified that he had begun working in the district attorney’s office in 1975 as an investigator and later as a court coordinator. He testified that he graduated from law school in 1984; after graduating from law school, he continued working in the district attorney’s office. At the time of the hearing, he was a member of the Alabama House of Representatives.

The husband testified that, during the parties’ engagement, he did not know what property the wife owned, although he stated that he knew that her family owned a substantial amount of land. He stated that he visited only a couple of the parcels of property that her family owned. He testified that he and the wife had never discussed the extent and nature of her real property, her personal property, her bank accounts, or her cash. He stated that he did not have an understanding before their marriage as to the wife’s or the wife’s family’s net worth.

The husband testified that he had received and read a copy of the August 26, 1987, draft of the agreement, after which he had handwritten the document that White had used in preparing the final draft of the agreement. He testified that he had prepared that handwritten document a few days before the wedding. He stated that he did not know his handwritten document was going to be used by White to prepare the final draft of the agreement and that he did not give White the handwritten document.

The husband testified that he believed White had told him he could not represent him at the time he signed the agreement; however, he stated that he knew from the August 26, 1987, draft of the agreement that White was not representing him. He stated that he did not consult with anyone about the agreement. He admitted that he could have talked to a lawyer about the agreement and that no one had prevented him from doing so. He testified that he did not seek representation because he was ashamed that he was entering into an antenuptial agreement. He admitted that he signed the agreement and that no one had forced him to sign it.

The husband testified that it upset him when the wife first broached the subject of an antenuptial agreement. He testified that he informed the wife that he would not sign an antenuptial agreement and that she responded by indicating that their wedding would not take place. He testified that the subject was not raised again until a few days before the parties’ marriage. He stated that, as the date of the marriage neared, the wife indicated to him that her mother was pressuring her to have him sign an antenuptial agreement. The husband testified that he signed the agreement because the invitations for the wedding had already been mailed and the wife’s mother was “real upset and was going to call the marriage off.” According to the husband, the wife told him that the purpose of the agreement was to appease the wife’s mother and that the agreement “would not be used against” him.

On March 18, 2010, the trial court entered an order in which it concluded that the agreement was invalid. In pertinent part, the court wrote:

“1. The Antenuptial Agreement lacked adequate consideration and considering the totality of circumstances and facts surrounding the Antenuptial Agreement it is basically unfair and inequitable to the Husband and is disproportionate to the means of the Wife.
“2. That Agreement required the Husband to relinquish any rights that he might have to the Wife’s estate, however, the Agreement provided that should the Wife survive the Husband, she would have the right to claim homestead, dower, or any statutory substitute with respect to the parties’ marital home.
“3. The Agreement provides that the Husband and Wife disclose all the property owned by each party, both real, personal, tangible, and intangible. It further required the Wife to disclose the nature, extent, and probable value of all property that she may in the future acquire by gift, bequest, devise, inherit, purchase from both her mother, Mary Texas Hurt Garner or her uncle, John Frank Garner.
“4. The evidence is clearly contrary to the above and there is absolutely no evidence that sufficient information was contained within the agreement or attached to the agreement that set forth the nature, extent and probable value of these assets as specifically required by the Agreement. The Court finds that the testimony from the Husband and the Wife, as to any discussions as to the contents of the Agreement, were not of substance, led to quarrels or arguments, and led to the conclusion that if the Husband failed to sign the agreement if there was to be a marriage [sic]. Although there was testimony that the Husband had hunted on some of the family property and may have been on another portion of the Wife’s family property during their courtship, the Court is of the opinion that this information is not sufficient to support a finding that the Husband had a general knowledge of the Wife’s estate and knew the extent of the Wife’s substantial estate.
“The Court finds the Husband was not adequately advised of the Wife’s assets and the nature, extent, and probable value of all property and other assets prior to or at the time he signed the Antenuptial Agreement and that he had insufficient general knowledge of the extent of the Wife’s assets in order to understand the rights or interests he was waiving when signing the Antenup-tial Agreement.
“5. The Court finds and the evidence supports that the Antenuptial Agreement was not entered into freely and voluntarily by the Husband, with competent independent advice.
“6. It is undisputed that the Husband did not have competent independent advice. The Agreement in this case was prepared by the Wife’s family attorney, John White. The Wife had a professional and close friendship [with] the Whites. The Wife served as the godmother to their child and worked for Mr. White prior to and after the signing of the Agreement. The testimony was conflicting as to whether the Husband was ever instructed to obtain the advice of counsel prior to signing the Agreement.
“7. The Court finds that independent counsel is indistinguishably tied to the requirement that the agreement was freely and voluntarily entered into and based upon the Husband’s lack of independent counsel the Court cannot find nor does the evidence support the entire Agreement was just and equitable.
“8. Considering the totality of circumstances and facts surrounding the Antenuptial Agreement it is basically unfair and inequitable to the Husband and is disproportionate to the means of the Wife.”

On April 15, 2010, the trial court made its March 18, 2010, order a final judgment pursuant to Rule 54(b), Ala R. Civ. P., finding that the issue regarding the validity of the agreement “significantly impacts divisions of property and awards of alimony upon final hearing.” The wife appeals.

The standard by which this court is required to review the trial court’s judgment in this case is well settled. Because the trial court’s decision is based on ore tenus evidence, we will presume that its factual findings are correct, and we will not set the judgment based on those findings aside unless they are plainly and palpably wrong or unjust. See Tyler v. Tyler, 990 So.2d 428, 428 (Ala.Civ.App.2008). We do not extend this presumption of correctness to the trial court’s application of the law to the facts, however. See Hinds v. Hinds, 887 So.2d 267, 271 (Ala.Civ.App.2003). Instead, we review a trial court’s application of the law to the facts de novo. See Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1255-56 (Ala.2004).

“It is well settled that antenuptial agreements are enforceable in Alabama.” Tyler, 990 So.2d at 426. “However, courts scrutinize such agreements to determine whether they are just and reasonable.” Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980). In Barnhill, this court described the test to be applied when the validity of an antenuptial agreement is put in issue. There, we wrote that an antenuptial agreement is valid and enforceable if the spouse seeking enforcement of the agreement demonstrates

“that the consideration was adequate and that the entire transaction was fair, just and equitable from the [other spousej’s point of view or that the agreement was freely and voluntarily entered into by the [other spouse] with competent independent advice and full knowledge of [his or] her interest in the estate and its approximate value.”

Barnhill, 386 So.2d at 751. “Meeting the requirements of either of [those] tests is sufficient to give effect to an antenuptial agreement.” Woolwine v. Woolwine, 519 So.2d 1347, 1349 (Ala.Civ.App.1987). See also Walters v. Walters, 580 So.2d 1350, 1351 (Ala.Civ.App.1990) (“We reiterate that the test in Barnhill is phrased in terms of an ‘either-or’ requirement.”).

The wife contends that the trial court erred when it concluded that there was insufficient consideration to support the agreement. She points out that marriage itself can serve as consideration for an antenuptial agreement, as can the parties’ mutual relinquishment of rights in each other’s estate. We agree.

In Woolwine v. Woolwine, supra, this court concluded that marriage served as adequate consideration for the antenuptial agreement at issue there. Reversing the trial court’s judgment, this court wrote:

“Marriage may, under appropriate circumstances, be sufficient consideration for an antenuptial agreement. Barnhill, 386 So.2d 749. In this instance marriage was clearly part of the consideration for executing this agreement. The husband was adamant in demanding that the wife sign an antenuptial agreement before he would marry her. As stated above, the wife was aware that it was necessary for her to sign the agreement in order to marry the husband. Therefore, it can be concluded that the marriage itself was sufficient consideration to support the antenuptial agreement.”

519 So.2d at 1349-50. See also Walters, 580 So.2d at 1351 (reversing trial court’s judgment and holding that marriage constituted adequate consideration for ante-nuptial agreement).

In Barnhill, this court concluded that the parties’ marriage and the husband’s relinquishment of any claim he may have to the wife’s estate constituted sufficient consideration to support an antenuptial agreement that the wife was seeking to avoid. Specifically with regard to the husband’s relinquishment of the wife’s estate, this court wrote: “[T]he husband by signing the [antenuptial] agreement gave up any right in what could be classified as the wife’s substantial estate. This relinquishment was ... valuable consideration.” Barnhill, 386 So.2d at 751. See also Strait v. Strait, 686 So.2d 1230, 1234 (Ala.Civ. App.1996) (parties’ marriage and their mutual relinquishment of rights in each other’s estate constituted adequate consideration for antenuptial agreement); and Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991) (same).

In the present case, the husband testified that the wife had told him that the marriage would be called off if he did not enter into the agreement. He testified that he was not required to marry her and that he voluntarily entered into the agreement. The agreement itself provided that it was being entered into in consideration of the parties’ marriage. In addition, the agreement provided that each party would relinquish any claim he or she may have to particular real and personal property of the other that each owned at the time of the marriage. Those properties were listed in the agreement.

Based on the circumstances surrounding the parties’ marriage, as well as their mutual relinquishment of any claim to the other’s separate real and personal property, we find that the record does not support the trial court’s finding that the agreement was not supported by sufficient consideration. Furthermore, we conclude that the record establishes the initial element of the first Barnhill test (i.e., that adequate consideration supported the antenuptial agreement), and we conclude that the trial court erred when it found otherwise.

Next, the wife contends that the trial court erred when it determined that the agreement was unfair and inequitable to the husband. She points out that the fairness of an antenuptial agreement is not based on a comparison of what each party takes thereunder and that, in this case, the husband had at least a general knowledge of the rights that he was relinquishing under the agreement.

In Woolwine, this court addressed the question whether an antenuptial agreement was fair, just, and equitable from the other spouse’s point of view, as required by the second part of the first Barnhill test. Finding that it was, and reversing the trial court’s judgment, this court wrote:

“As noted above, not only must the consideration be adequate, but the entire transaction must have been fair, just, and equitable from the wife’s point of view. In this instance there is absolutely no evidence of fraud or duress in the execution of the agreement. The attorney who drafted the agreement testified that he advised the wife of its content and effect and further advised her to seek independent advice.
“Further, the evidence is that the husband and wife had discussed the agreement prior to their marriage and that the wife voluntarily agreed to sign. The testimony was that the wife chose not to seek independent advice contrary to the recommendation of the attorney who prepared the agreement.
“The evidence in all respects indicates that the antenuptial agreement was entered into voluntarily and, furthermore, that the wife knew what she was relinquishing when she signed the agreement. Additionally, the record indicates that the wife at least had a general knowledge of the extent of the husband’s estate. All of the above indicates that there was adequate consideration and that the transaction was fair, just, and equitable.
“It would appear to this court that a spouse should not be able to avoid an agreement signed before marriage simply by showing a substantial difference between his or her rights under the agreement and what might have been awarded by a court in the absence of such an agreement. Put another way, ‘unfairness’ under the instant facts does not relate to the amount awarded to a spouse pursuant to an antenuptial agreement.”

519 So.2d at 1850.

In Barnhill, this court found that the record supported a conclusion that the antenuptial agreement at issue there was fair, just, and equitable from the opposing spouse’s point of view. The court wrote:

“In this instance, there is absolutely no evidence of fraud or duress in executing the agreement. The attorney who drafted the agreement advised the wife as to the effect of the agreement prior to her signing it.
“The wife had the agreement several weeks prior to the marriage and there is evidence to indicate that the wife sought competent independent advice prior to the marriage concerning the agreement.
“The evidence in all respects indicates that the agreement was entered into voluntarily; furthermore, that the wife knew what she was relinquishing when she signed the agreement as shown by her reluctance in signing the agreement until the husband told her that he would not many her unless she signed an agreement. Additionally, the record indicates the wife at least had a general knowledge of the extent of the husband’s estate. All of the above goes to indicate the agreement was fair, just and equitable from the wife’s point of view.”

Barnhill, 386 So.2d at 752. See also Walters, 580 So.2d at 1351 (reversing trial court’s judgment and holding that ante-nuptial agreement was fair, just, and equitable from wife’s perspective when evidence demonstrated that wife chose not to secure outside legal advice about agreement and wife had a general knowledge of the husband’s estate).

Addressing the question whether an antenuptial agreement was unfair because of a disparity in the parties’ net worth, this court, in a plurality opinion, wrote:

“Finally, the trial court erred in applying the law on antenuptial agreements to the facts before it when it held, based upon the disparity of the parties’ net worths, that the antenuptial agreement was unfair and inequitable. As this court stated in Woolwine, the fairness of an antenuptial agreement is not to be judged based upon a comparison of what the spouse takes under the agreement with what he or she would have taken without the agreement. Woolwine, 519 So.2d at 1350. Likewise, a court should not concern itself with the disparity in income between parties to an antenuptial agreement in the absence of fraud, duress, or other culpable conduct on the part of one of the parties .... Typically, the reason parties enter into antenuptial agreements is because they have vastly different incomes and assets that they wish to protect in the case of divorce or death. The very impetus behind the creation of such agreements should not be a reason to set them aside as inequitable.”

Lemaster v. Dutton, 694 So.2d 1360, 1364 (Ala.Civ.App.1996).

The record in the present case reflects that the agreement was fair, just, and equitable from the husband’s point of view. There was absolutely no evidence of fraud or duress in the execution of the agreement, and the record reflects that the husband voluntarily signed the agreement. The husband had attended and graduated from law school, having taken courses in both contracts and estates and trusts. The agreement is clear with respect to the rights each party was relinquishing. Although the husband testified that he was not fully aware of the wife’s estate, the agreement itself listed every piece of real and personal property that each party owned at the time of the marriage over which the other party was relinquishing a claim. Although there was evidence, as the trial court found, that the values of those properties were not disclosed, despite a contrary indication in the agreement, we hold that the failure of the parties to have disclosed the values of the properties over which they each intended to maintain separate ownership does not void the agreement, especially given that the listing of those properties put both parties on notice of their existence and the fact that those properties would not be divided at the dissolution of the marriage.

This case presents a situation similar to the one presented in Strait v. Strait, 686 So.2d 1230 (Ala.Civ.App.1996). In Strait, the wife argued that she did not have adequate knowledge of her husband’s estate and, as a result, that their antenuptial agreement was invalid. The record disclosed that an exhibit was attached to the agreement listing both parties’ property. However, the exhibit did not specify that the value of the husband’s real property included therein was $1,175,000. Furthermore, the husband had failed to include on the exhibit certain of his property, including $45,000 in cash, and furniture, tools, and equipment worth $100,000. This court held that the wife’s knowledge of the husband’s estate was sufficient for purposes of upholding the antenuptial agreement:

“This court has held that when a spouse has at least a general knowledge of what he or she is relinquishing and a general knowledge of the extent of the other spouse’s estate, an antenuptial agreement based on adequate consideration is fair, just, and equitable. Barn-hill, supra, at 752; Woolwine, supra, at 1350. The evidence indicates that [the wife] was familiar with [the husband]’s assets, and that, although she may have not known of all his assets, she clearly had a ‘general knowledge’ of the rights she was relinquishing. Therefore, the trial court properly held that there was no genuine issue of material fact regarding [the wifej’s claim that the antenup-tial agreement was invalid.”

Strait, 686 So.2d at 1234. See also Walters, 580 So.2d at 1351 (reversing trial court’s judgment that antenuptial agreement was invalid and holding that the fact that the wife lived with the husband for six months before they married was sufficient to confer on her a general knowledge of the extent of the husband’s estate); Barnhill, 386 So.2d at 752 (holding that wife had a general knowledge of the husband’s estate at the time she entered into an antenuptial agreement with him when she had visited his home and some of his property before marriage, had known that he owned a substantial amount of land, and had known that he was in business with other family members in a farming operation).

We also conclude that the evidence demonstrates, without contradiction, that the husband was aware that the wife’s family possessed a large amount of real property and that the agreement excluded any inheritance she might receive of that property. That the wife did not disclose the exact properties she stood to inherit and the value of those properties does not demonstrate, as the trial court found, that the husband did not have a general understanding of the wife’s property that was being excepted from the marital estate. See Strait, supra. Indeed, one could hardly know, at the time of the marriage, exactly what the various members of the wife’s family would leave to her in their various testamentary dispositions at their deaths, given that those dispositions were subject to change at any time.

The fact that the agreement provided the wife, upon the husband’s death, with the right to claim homestead, dower, or any statutory substitute with respect to the house the husband owned before the marriage does not render the agreement unfair or inequitable, as the trial court apparently found. The trial court, in focusing on that provision, neglected the fact that the agreement provided that, should the wife die, the husband would be entitled to a life estate in any real property in which the parties were residing at the time of her death. Although the rights granted are not qualitatively equal, this does not provide a basis on which to invalidate the whole agreement, especially given the fact that, as stated above, there was adequate consideration flowing between the parties to support the validity of the agreement. As this court stated in Woolwine, “unfairness” with regard to the validity of an antenuptial agreement “does not relate to the amount awarded to a spouse pursuant to an antenuptial agreement.” 519 So.2d at 1350.

That no one told the husband to seek outside legal counsel does not render the agreement invalid in this case. Although the trial court correctly notes that the husband did not receive independent legal advice with regard to the agreement before he executed it, the evidence is clear that the husband had graduated from law school before the wife and he had become engaged. The husband testified that he knew he was entitled to seek legal advice with regard to the agreement, and he knew, from his review of the August 26, 1987, draft of the agreement, that White was not representing him with regard to the agreement. The only justification the husband provided for having failed to seek independent legal advice with regard to the agreement is that he was embarrassed that the wife wanted him to enter into the agreement. This, in our view, is not an adequate excuse for having failed to seek legal advice, and it does not cause his decision not to obtain independent legal advice to invalidate the agreement. See Nelson v. Estate of Nelson, 53 So.3d 922, 930 (Ala.Civ.App.2010) (“Sarah does not allege that fraud or duress was involved in the execution of the agreement or that she was in any way prevented from seeking legal counsel. Thus, if she did not consult with a lawyer, that was of her own choosing. Additionally, Sarah was highly educated and, as such, cannot be relieved of her legal contracts on the basis of failing to protect her own interests.”).

Based on the foregoing, we conclude that the evidence of record demonstrates that the agreement was fair, just, and equitable from the viewpoint of the husband. Because, as previously noted, the agreement was supported by adequate consideration, we conclude that the first test set forth in Barnhill for the validity of an antenuptial agreement has been met in this case, and, as a result, the agreement is due to be enforced. The trial court’s judgment holding the agreement invalid is therefore reversed, and the cause is remanded to the trial court for additional proceedings.

The wife’s request for an attorney’s fee on appeal is denied.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and MOORE, JJ„ concur.

THOMAS, J., concurs in the result, without writing.

      . We note the portion of the judgment in which the trial court pointed out that the wife had a "professional and close friendship” with White and his wife. We fail to see how the wife's relationship with White and his wife has any bearing on the validity of the agreement, especially given that the husband knew he was entitled to seek separate legal advice but chose not to do so.