author: MYERS, P.J.,

text:
    Randall M. POWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00675-COA.
    Court of Appeals of Mississippi.
    Dec. 7, 2010.

      Ross R. Barnett, Jr., Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   MYERS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefore.

¶ 2. Powell was convicted in the Circuit Court of Copiah County of the statutory rape of his eleven-year-old daughter, A.B. The trial court sentenced Powell to serve a term of thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Powell appeals.

FACTS

¶ 3. On May 17, 2008, A.B. went to stay with her mother in Hinds County, Mississippi, for the summer. A.B. had spent most of the previous two years with her father, Powell. Powell lived in Crystal Springs, Mississippi, in Copiah County. On May 27, 2008, A.B. told her mother that she was suffering from burning and pain during urination. A.B.’s mother called Powell, who told her that he believed A.B. was suffering from a urinary tract infection. Powell stated that A.B. “has them all the time,” and he recommended that A.B.’s mother “put some of those women creams [sic] on her and she’ll be all right in a little while.” A.B.’s mother insisted on taking A.B. to see a doctor, and Powell replied that she should call him back and let him know what happened.

¶ 4. A.B.’s mother then took the child to the emergency room at the Central Mississippi Medical Center in Jackson, Mississippi. A.B. was examined by Michael Williams, a nurse practitioner. Williams ordered a urinalysis, which revealed that A.B. was suffering both from a urinary tract infection and trichomoniasis, a sexually transmitted disease. Williams conducted a noninvasive exterior examination of the child and noted significant vaginal discharge. A.B. initially told her mother and Williams that she had never had any sexual contact with anyone. However, because A.B. was diagnosed with a sexually transmitted disease, an employee of the Mississippi Department of Human Services interviewed the child at the hospital. A.B. disclosed to the DHS interviewer that she had been sexually abused by her father, Powell.

¶ 5. A.B. testified. at trial that Powell had raped her approximately ten times while she was in the fourth and fifth grades. She described the abuse as follows: “[Powell] would call me in his room, and he asked me to do something, and he told me what he was going to do, and he told me to pull my pants down, and he pulled his down and he puts [sic] his private parts in mine.” A.B. testified that she had not previously disclosed the abuse because she was afraid of her father.

¶ 6. Chad Sills, an investigator with the Copiah County Sheriffs Department, also testified for the State. He stated that he had interviewed Powell and that Powell had denied raping his daughter. Powell had admitted, however, that he and his current wife, Melody, had previously contracted trichomoniasis.

¶ 7. Powell and his wife testified. Powell denied raping his daughter. His principal defense was that he was impotent because of medication he took to combat high blood pressure. Powell’s wife acknowledged that she had contracted trichomo-niasis in early 2006, from an extramarital affair, but both claimed Powell had not been infected because of his impotence. Powell also testified that he had prominent genital warts, which A.B. would have noticed but had not mentioned. Powell also averred that he had not had an opportunity to rape A.B. because of his and his wife’s work schedules and the cramped living conditions in his home. Powell was subsequently convicted and sentenced, and he appeals from that judgment, arguing five issues.

DISCUSSION

1. Weight of the Evidence

¶ 8. In his first issue, Powell argues that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 9. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 3 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999)). The supreme court has discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice-However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The court has cautioned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 10. On appeal, Powell’s argument is largely a rehashing of his defense at trial, which we have outlined above. He further argues on appeal that there was no physical evidence of penetration and that the testimony indicated that A.B. could have contacted trichomoniasis through contact with bodily fluids and that physical penetration was not required for her to have been infected.

¶ 11. Reviewing the testimony as we have summarized it above, we are thoroughly satisfied that the jury’s verdict is not against the overwhelming weight of the evidence. A.B.’s testimony was that Powell had raped her, and this testimony was corroborated by medical evidence. Although Powell testified that he had never been infected with trichomoniasis, this was contradicted by his prior admission to police interviewers that he had, in fact, contracted the disease. Likewise, the testimony that Powell had become impotent in late 2005 was contradicted by his own admission on cross-examination that he may have fathered a child born on March 12, 2007. Furthermore, Powell had not mentioned any problems with impotence during his prior interview with the authorities. And, while it was conceded that A.B. could possibly have contracted trichomo-niasis absent vaginal penetration, A.B. was unequivocal in stating that Powell had penetrated her.

¶ 12. Boiled down, this case presented a question of credibility. The jury, in finding Powell guilty of statutory rape, clearly favored A.B.’s testimony over Powell’s. In that, we can find no reversible error. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). The jury’s verdict is clearly not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This issue is without merit.

2. Jury Instruction on Penetration

¶ 13. Powell argues that the jury was improperly instructed on the elements of statutory rape. Particularly, he asserts that the instruction offered by the State failed to define the essential element of penetration. Instruction S-2, which was given by the trial court, stated:

The Court instructs the Jury that if you believe from the evidence in this case, beyond a reasonable doubt, that:
(1) On or about and between the 1st day of August, 2006, and the 27th day of May, 2008, in Copiah County, Mississippi;
(2) the defendant, Randall M. Powell, a person;
(3) did wilfully, unlawfully and felo-niously have sexual intercourse with [A.BJ;
(4) a person under 14 years of age and 24 or more months younger than Randall M. Powell;
(5) and is not Randall M. Powell’s spouse;
then you should find the said Randall M. Powell guilty of Statutory Rape.
If you find that the State has failed to prove any one or more of these essential elements of the crime of Statutory Rape, beyond a reasonable doubt, then you must find the defendant not guilty.

¶ 14. Powell acknowledges that he made no contemporaneous objection; this issue is therefore procedurally barred on appeal. Booze v. State, 942 So.2d 272, 275 (¶ 15) (Miss.Ct.App.2006). The argument is also without merit. The supreme court has addressed and rejected the same argument in Gray v. State, 728 So.2d 36, 60-62 (¶¶ 107-22) (Miss.1998) (holding that jury instruction stating that “sexual intercourse” is a required element of rape is sufficient to instruct the jury on penetration). The jury was instructed properly on the elements of statutory rape. This issue is procedurally barred and without merit.

3. Ineffective Assistance of Counsel

¶ 15. Powell argues that, he received constitutionally ineffective assistance at trial. He argues that his trial counsel failed to “(1) provide the court with a peremptory instruction within the time required by the rules; (2) request an instruction defining intercourse as including penetration; and (3) renew the defense motion for [a] directed verdict.”

¶ 16. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the appellant] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Additionally, an appellant is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 17. “The adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a ‘totality of the circumstances.’ ” Taylor v. State, 682 So.2d 359, 363 (Miss.1996). The test is to be applied to the overall performance of counsel. Bigner v. State, 822 So.2d 342, 346 (¶ 24) (Miss.Ct.App.2002). “There is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic.” Taylor, 682 So.2d at 363.

¶ 18. It is unclear from the record precisely what occurred regarding the motion for a directed verdict or the refusal of the peremptory instruction. The trial court stated on the record prior to the sentencing hearing:

I’m not sure that the record has sufficiently preserved what actually occurred, but at the end of this trial Ms. Peterson [defense counsel] was about to prepare a jury instruction requesting a peremptory instruction requesting a directed verdict. The court informed Ms. Peterson that I would place that on the record, and I don’t recall whether I did that, and the court informed Ms. Peterson that I would deny that instruction; therefore, there was no need to take time and go prepare that instruction for the court to deny because I said I could cover that on the record, and Ms. Peterson did request at the close of the evidence in this case a directed verdict and she was in the process of preparing a request for peremptory instruction, which the court denied, and I informed Ms. Peterson that I would deny that....

The record does contain a proffered peremptory instruction, filed March 3, 2009, the date of trial. Although it is marked “refused,” the instruction is unnumbered.

¶ 19. Even assuming that counsel failed to offer a timely peremptory instruction or to renew her motion for a directed verdict at the close of all the evidence, these arguments are without merit because Powell has completely failed to-show, or even assert, with any specific detail how he was prejudiced by these alleged mistakes of counsel. Coleman, 979 So.2d at 735 (¶ 15). Additionally, the supreme court has held that failure to make such motions is not ineffective assistance of counsel where the trial court was presented with an opportunity to review the same issues in a post-trial motion. Parker v. State, 30 So.3d 1222, 1234-35 (¶¶ 46-49) (Miss.2010). It is undisputed that Powell filed a timely motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. That motion allowed the trial court to review both the weight and sufficiency of the evidence at the conclusion of trial. Therefore, these arguments are without merit.

¶ 20. Powell’s final argument, that trial counsel was ineffective in failing to offer a jury instruction defining sexual intercourse as including penetration, is also without merit. “[C]ounsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy.” Bigner, 822 So.2d at 346-47 (¶ 24). Furthermore, as we held above, the jury was properly instructed on the elements of statutory rape. Moreover, there is nothing to suggest that this instruction would have changed the result at trial. It is true that medical testimony indicated that it was possible for A.B. to have been infected with trichomoniasis through contact with bodily fluids, absent penetration, but no evidence was offered at trial that A.B. had been exposed to Powell’s bodily fluids through non-penetrative sexual contact. A.B. testified that she had been vaginally penetrated; Powell denied any sexual contact whatsoever. This issue is without merit.

4. Sentencing

¶ 21. We have consolidated Powell’s final two issues into a single one for the purposes of our analysis. Powell asserts that the trial court increased the severity of his sentence because of Powell’s statement prior to the pronouncement of the sentence that he intended to appeal his conviction. Powell argues that the trial court should not have asked him whether he intended to appeal his conviction. He cites to this exchange between himself and the trial court at the start of the sentencing hearing:

THE COURT: Mr. Powell, I also wanted to inform you that you have been convicted by a jury of your peers of statutory rape. Do you understand you have an absolute right to appeal this conviction? Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Have you reached a decision yet as to whether or not you wish to appeal?
THE DEFENDANT: We will appeal.
THE COURT: Mr. Powell, you’ll need to file — I believe there’s a time limit that requires you to file certain filings in the court, and you must do so within a specified time period. You can retain that advice from your lawyer. I don’t know if Ms. Peterson will be representing you or someone else will, but in any event, no matter who represents you, you’ll need to file your necessary paperwork in order to perfect that appeal. Do you understand?
THE DEFENDANT: Yes, sir.

Powell argues that the trial court’s statements are unclear and that there is some possibility that the trial court inquired whether Powell intended to appeal for the purpose of punishing him if he answered in the affirmative. Powell argues that any doubt should be resolved in his favor. Powell also argues that the sentence was unduly harsh and disproportionate because this was Powell’s first criminal conviction.

¶ 22. The supreme court has held that: Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.

Hoops v. State, 681 So.2d 521, 587-38 (Miss.1996) (citations and internal quotations omitted). Mississippi Code Annotated section 97-3-65(3)(c) (Supp.2009) states that the punishment for the statutory rape of a child under the age of fourteen years by an adult over the age of eighteen years is “imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.” When the trial court sentenced Powell to thirty years’ imprisonment, it stated:

Well, the court[,] recognizing that this is a first offense, I do not have a history— don’t see any prior indications of any problems with Mr. Powell, so I do not believe the maximum is required in this case. I will sentence Mr. Powell to serve a period of 30 years in the Mississippi Department of Corrections. That will be the sentence of the court....

¶ 23. Powell’s argument that the trial court impermissibly punished him for stating his intention to exercise his constitutional right to appeal his conviction is without merit. The trial court’s question as to whether Powell had decided to appeal appears to be nothing more than a segue into the court’s reminder of the procedural requirements for perfecting that appeal. This is not improper; we note that the supreme court has “urge[d] trial courts to advise criminal defendants of their rights concerning appeal on the record at the time of sentencing and to solicit a decision in that regard.” Wright v. State, 577 So.2d 387, 390 (Miss.1991). Powell has failed to demonstrate an abuse of discretion in this respect.

¶ 24. Regarding Powell’s proportionality argument, the supreme court has stated that “where a sentence is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.” Gray v. State, 926 So.2d 961, 979 (¶ 63) (Miss.Ct.App.2006) (quoting Tate v. State, 912 So.2d 919, 933 (¶ 48) (Miss.2005)). Nonetheless, where the sentence is grossly disproportionate to the crime committed, it may be subject to attack on the ground that it violates the Eighth Amendment prohibition on cruel and unusual punishment. Id. “The three factors to look at when determining whether a sentence is proportional are: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.” Id. (citation and internal quotations omitted).

¶ 25. We note as a threshold matter that this proportionality argument is procedurally barred because it was not raised in the trial court. Robinson v. State, 875 So.2d 230, 240 (¶ 31) (Miss.Ct.App.2004). It is also subject to an additional procedural bar because Powell has failed to present any evidence regarding the second or third factors cited in Gray. Gray, 926 So.2d at 979-80 (¶ 64).

¶ 26. Without waiving the procedural bar, we also find the proportionality argument without merit. Appellate courts will not apply the three-prong disproportionality test unless there is an initial showing that “a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Edwards v. State, 800 So.2d 454, 469 (¶ 47) (Miss.2001) (citations omitted). The statutory rape of a child by an adult carries with it a statutory maximum penalty of life imprisonment, as well as a statutory minimum sentence of twenty years’ imprisonment, irrespective of whether it is one’s first offense. The rape of one’s own eleven-year-old daughter is a particularly vile and heinous crime, and we find no inference of gross dispro-portionality in Powell’s thirty-year sentence. This issue is procedurally barred and without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . To protect the identity of minor victims of sexual abuse, we substitute fictitious initials for their names.

      . The DHS employee is identified in the record only as “Ms. Jones.”

      . Additionally, the trial court stated on the record, immediately before instructing the jury, that it had only refused one defense instruction, an instruction "dealing with prior statements.” There is no explanation in the record for the apparent discrepancy.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    TENNESSEE HEALTH MANAGEMENT, INC. v. Carol J. Rousseau JOHNSON, as personal representative of the estate of Dolores J. Rousseau, deceased.
    1080762.
    Supreme Court of Alabama.
    April 9, 2010.

      Stephen A. Rowe and Aaron G. McLeod of Adams & Reese LLP, Birmingham, for appellant.
    Ralph W. Hornsby, Jr., and Jennifer L. McKown of Hornsby, Watson, Hornsby, Blackwell & McKown, Huntsville, for ap-pellee.
   LYONS, Justice.

Tennessee Health Management, Inc. (“THM”), is a defendant in an action pending in the Madison Circuit Court. It appeals from an order denying its motion to compel arbitration of the plaintiffs claims. We reverse and remand.

I. Facts and Procedural History

Dolores J. Rousseau (“Dolores”) was admitted to Millennium Nursing and Rehabilitation Center (“Millennium”) in Huntsville on January 26, 2008, following hip-replacement surgery. Millennium is operated by THM. On January 25, 2008, Dolores’s daughter Barbara Rousseau (“Barbara”) signed numerous forms on Dolores’s behalf required by Millennium for Dolores’s admission to the facility. Barbara signed the admission forms in the various capacities of the patient’s representative, the patient or a responsible party, the resident’s representative, the resident/family, the family or legal representative, the legal representative, or the responsible family member. There is no evidence indicating that Dolores ever objected to Barbara’s signing the various admission forms on her behalf or that Dolores was mentally incompetent when she was admitted to Millennium. Dolores was discharged from Millennium six days later, on February 1, 2008.

The financial agreement Barbara signed contained the following definitions:

“1. ‘Resident’ means the individual who is or will be residing in the facility and includes where applicable a legal representative appointed to act on behalf of the resident. (Examples: conservator, legal guardian, person with power of attorney).
“2. ‘Facility’ means Millennium Nursing & Rehab Center.
“3. ‘Resident Representative’ means the individual, who along with the resident, should receive notices and other communications concerning the resident.
“4. ‘Responsible Party’ is any individual or organization who personally assumes financial responsibility for the resident’s financial obligations under this agreement. ...”

The financial agreement specified the daily rate Millennium would charge for Dolores’s stay, listed items and services not covered by the daily rate, identified Dolores as a “private pay resident” covered by Medicare, and explained Dolores’s financial obligations to Millennium. Barbara signed the financial agreement above a line on which was printed the term “Legal representative.”

Barbara also signed an “Agreement to Alternative Dispute Resolution” (“the ADR agreement”). The ADR agreement, in addition to requiring binding arbitration, also provided:

“1. Parties to the Agreement: • The parties to this Agreement are Millennium Nursing & Rehab Center, inclusive of its employees and/or affiliates, which will be collectively referred to as the ‘FACILITY,’ and Dolores Rousseau, their [sic] health care decision maker or surrogate, or any representative of that individual identified below, who •will be collectively referred to .as the ‘RESIDENT.’ The parties agree that the undersigned individuals have the legal authority to bind their respective parties.
“2. Voluntary Nature of this Agreement: RESIDENT and FACILITY agree that this Agreement is entered into on a voluntarily [sic] basis. The RESIDENT understands that they have a choice of long-term care providers and that other nursing facilities may or may not use arbitration and/or mediation to resolve disputes. By signing below, the RESIDENT agrees that the FACILITY is not requiring them [sic] to sign this Agreement and understands that they [sic] may be admitted to the FACILITY without entering into this Agreement.
“5. Not a Condition of Admission: RESIDENT’S signing this Agreement (agreeing to submit disputes to ADR) is not a condition of admission to the FACILITY; and the decision to sign this Agreement is solely within the discretion of RESIDENT.
“6. Opportunity to Seek Counsel: The signature below of RESIDENT indicates that the FACILITY has advised RESIDENT, their [sic] health care decision maker, and/or family members they may seek legal counsel prior to signing, entering into and/or being bound by this Agreement. RESIDENT is encouraged to ask questions or seek legal counsel if they [sic] do not understand any of the provisions of this Agreement.
“16. Binding Effect: It is the intention of the RESIDENT and the FACILITY that this Agreement shall inure to the benefit of and bind the FACILITY, its affiliated entities, management companies, administrators, owners, officers, shareholders, members, representatives, governors, directors, medical .directors, employees, trustees, successors, assigns, agents, attorneys and insurers; and shall inure to the benefit of and bind the RESIDENT, his/her agents, attorneys, direct and third party beneficiaries, insurers, heirs, trustees and representatives, including the personal representative, administrator, or executor of his/ her estate, and his/her spouse and children.”

(Capitalization in original.) The ADR agreement contained alternative signature lines for the resident; the conservator/guardian, durable power of attorney for health care, or other legal representative, if any; health-care decision-maker; or family member responsible for the resident. Barbara signed her name to the ADR agreement on the signature line provided for the family member responsible for the resident.

On May 23, 2008, Dolores, acting through Barbara as her next friend, sued THM and related entities. The complaint alleges that while Dolores was a resident of Millennium, she suffered dehydration, a urinary-tract infection, an abdominal blockage, and other bodily injuries, as well as mental anguish and emotional distress. Dolores stated claims alleging negligence, wantonness, and breach of contract.

THM moved to compel arbitration. In support of the motion, it submitted the ADR agreement and an affidavit from Lisa Rose, the executive director of Millennium, who stated that on January 25, 2008, Barbara signed the ADR agreement on behalf of Dolores as the “Family Member Responsible for RESIDENT” and that the ADR agreement was one of the documents executed in conjunction with admitting Dolores to Millennium. Rose also stated that Dolores’s stay at Millennium involved interstate commerce in that Millennium is located in Huntsville and THM is a corporate resident of Tennessee.

Dolores opposed the motion to compel arbitration. Barbara submitted an affidavit to the trial court in opposition in which she stated:

“My mother, Dolores Rousseau, was admitted to and was a patient of Huntsville Hospital following a hip replacement surgery. My mom was not ambulatory and her doctors had indicated that upon her discharge from Huntsville Hospital she needed twenty-four (24) hour nursing and medical care due to self-care deficits. The employees at Huntsville Hospital made arrangements for my mother to be transferred to Millennium Nursing and Rehabilitation Center. Upon arrival, I was greeted by an employee who presented me with admission documents, including an arbitration agreement. At that time, I did not have a power of attorney over my mother, nor did I have any legal basis for signing my mother’s name, or obligating her contractually. The admission paperwork was never presented to my mother. I signed my own name to this agreement, and I signed in my own personal capacity. My mother never was given an opportunity to sign the admission documents, nor did she sign them. My mother never gave me any instructions to sign on her behalf. I signed in my own individual capacity, and not pursuant to any instructions or other legal authority. My mother was not present when the admission documents and the arbitration agreement were presented to me.”

The trial court denied THM’s motion to compel arbitration on February 12, 2009. THM appealed.

On July 2, 2009, THM notified this Court of Dolores’s death on June 7, 2008. It then filed a motion for leave to file a motion pursuant to Rule 60(b), Ala. R. Civ. P., with the trial court. In support of that motion, THM stated that it had not been made aware of Dolores’s death for approximately one year after it occurred and that it had discovered new evidence regarding Barbara’s authority to bind Dolores to arbitration. It is undisputed that no suggestion of death was filed and that Dolores’s estate was not substituted as the plaintiff instead of Dolores. THM argued that because it had discovered new evidence, because its motion to compel arbitration was decided in favor of a party who had died, and because there had been no substitution of the decedent’s estate as appellee instead of Dolores before the appeal was taken, this Court should stay the appeal to allow THM to move for relief from the trial court’s order in light of the newly discovered evidence and to allow the proper party to be substituted as the plaintiff. This Court granted THM’s motion for leave to file a Rule 60(b) motion with the trial court and granted the trial court leave to rule on the motion. THM also moved to supplement the record; that motion was granted as well.

On July 23, 2009, Carol J. Rousseau Johnson, as personal representative of the estate of Dolores J. Rousseau, deceased (“Carol”), filed an amended complaint against THM. The amended complaint alleged essentially the same facts and stated the same claims as did the initial complaint. The amended complaint adds the allegation that Dolores was injured so severely during her stay at Millennium that those injuries resulted in her death on June 7, 2008.

THM renewed its motion to compel arbitration, which it supported not only with the ADR agreement and Rose’s affidavit, but also with the other documents Barbara had signed in the course of admitting Dolores to Millennium. THM also filed a Rule 60(b)(6) motion for relief from the order denying its motion to compel arbitration. Carol did not file any response to the renewed motion to compel arbitration or to the Rule 60(b) motion. After a hearing, the trial court denied THM’s Rule 60(b)(6) motion on September 22, 2009. When the trial court submitted a return to this Court, we then resumed jurisdiction over the case.

II. Standard of Review
“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

III. Analysis

THM argues that Barbara had the apparent authority to sign the ADR agreement for Dolores because, they argue, Barbara represented herself on the admission documents as someone who had the legal authority to bind Dolores and because Dolores did not object when Barbara signed the admission documents on her behalf. The ADR agreement recites that the parties to the agreement are the “Facility,” defined as Millennium, “inclusive of its employees and/or affiliates,” and the “Resident,” defined as Dolores “or any representative of that individual identified below.” The ADR agreement further states that the parties “agree that the undersigned individuals have the legal authority to bind their respective parties.” Barbara signed the ADR agreement in the block provided for the signature of the family member responsible for the resident. Barbara had also signed another document, the financial agreement, as Dolores’s legal representative.

THM relies on this Court’s decision in Carraway v. Beverly Enterprises Alabama, Inc., 978 So.2d 27 (Ala.2007). In Carraway, Richard Carraway signed a number of documents when he admitted his sister, Shirley Carraway, to a nursing home. One of the documents was an arbitration agreement, which Richard signed as his sister’s authorized representative. After Shirley died, Richard filed a wrongful-death action against the nursing home. The trial court granted the nursing home’s motion to compel arbitration, and Richard appealed, arguing that no valid arbitration agreement existed because Shirley never signed the agreement. This Court disagreed, holding that Shirley’s estate was bound by the arbitration agreement signed by Richard. We stated:

“Just as Richard signed all the other documents relating to Shirley’s admission into the nursing home on Shirley’s behalf, Richard signed the arbitration agreement on Shirley’s behalf expressly as an ‘authorized representative.’ Apparent authority ‘is implied where the principal passively permits the agent to appear to a third person to have the authority to act on [her] behalf.’ Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So.2d 859, 861 (Ala.Civ.App.1983). ‘It is not essential that the right of control be exercised so long as that right actually exists.’ Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350, 1352 (Ala.1977). There is no evidence indicating that Shirley had any objection to Richard’s acting on her behalf in admitting Shirley to the nursing home. ... The arbitration agreement did not call for the signature of a legal representative; instead, it provided that ‘a person duly authorized by the Resident’ could sign the agreement on the resident’s behalf.”

978 So.2d at 30-31.

The facts in this case concerning the execution of the ADR agreement are similar. Barbara signed all the documents admitting Dolores to Millennium, including the ADR agreement, in various representative capacities. The ADR agreement specifically defined the party to be bound by the agreement as Dolores or “any representative of that individual.” Furthermore, it states that the parties agreed that the individuals who signed the agreement have the legal authority to bind their respective parties. Because Dolores enjoyed the ease of checking into Millennium without the requirement that she sign anything, under circumstances in which no reasonable person could consider the admission possible without the intervention of an agent to act on Dolores’s behalf, she thereby passively permitted Barbara to appear to THM to have the authority to act on her behalf, and Barbara’s apparent authority is, therefore, implied. See Carraway, 978 So.2d at 30 (“Apparent authority ‘is implied where the principal passively permits the agent to appear to a third person to have the authority to act on [her] behalf.’ ” (quoting Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So.2d 859, 861 (Ala.Civ.App.1983))).

Carol relies upon the fact that Dolores did not instruct Barbara to sign the admission documents on her behalf. Notwithstanding the absence of evidence indicating that Dolores instructed Barbara to sign the admission documents on her behalf, there is no evidence indicating that upon entering Millennium or any time after her admission Dolores ever signed any document obligating herself to pay for the services, that she ever objected to Barbara’s having signed the admission documents, or that she understood that Millennium was treating her without charge, dispensing with the necessity for an agreement. Instead, Dolores remained at Millennium for six days, accepting the benefits of the services rendered without objection or question. As was the case in Can-away, “[t]here is no evidence indicating that [Dolores] had any objection to [Barbaraj’s acting on her behalf in admitting [Dolores] to the nursing home.” 978 So.2d at 31.

Carol also argues that Dolores is not bound by the ADR agreement because she did not sign it and she was not present when Barbara signed it. Barbara’s claims, if any, may be subject to arbitration, Carol argues, but as a nonsignatory to the agreement, Dolores could not be forced to arbitrate her claims. Carol relies upon Noland Health Services, Inc. v. Wright, 971 So.2d 681 (Ala.2007). In Noland, a plurality of this Court held that a daughter-in-law’s signature as the responsible party on a nursing-home arbitration agreement was ineffective to bind the resident to the agreement. Noland is distinguishable from this case, however, because the nursing-home resident in Noland was mentally incompetent and could not authorize anyone to act on her behalf and because the daughter-in-law did not sign any document in the capacity of her mother-in-law’s legal representative.

Carol also argues that Barbara did not have a power of attorney over Dolores or any other legal authority to contractually bind Dolores to the ADR agreement. In Carraway, Shirley executed a power of attorney a few weeks after she was admitted to the nursing home that gave Richard further authority to act on her behalf. The Court found that her execution of the power of attorney was further evidence suggesting that Shirley approved of her brother’s acting on her behalf when he signed the admission documents. 978 So.2d at 31. The arbitration agreement in Carraway did not call for the signature of a legal representative; likewise, the ADR agreement Barbara executed did not require the signature of Dolores’s legal representative. The absence of a power of attorney in this case is not fatal to our conclusion that Barbara had the apparent authority to bind Dolores at the time Barbara signed the admission documents in view of the evidence indicating that Dolores passively permitted Barbara to act on her behalf.

Under these circumstances, THM proved the existence of a valid contract calling for arbitration and proved that the contract evidenced a transaction affecting interstate commerce. The trial court erred in denying the motion to compel arbitration. Because we reverse on that basis, we need not address the other arguments relied on by THM.

IV. Conclusion

THM has satisfied its burden of showing the existence of a valid arbitration agreement. We conclude that the trial court erred in denying THM’s motion to compel arbitration in accordance with the ADR agreement. We therefore reverse the trial court’s order denying the motion to compel arbitration and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WOODALL, J., dissents.

      . Dolores was the original plaintiff in this action. After her death, her daughter Carol J. Rousseau Johnson, the personal representative of her estate, was substituted as the plaintiff. The final order entered by the trial court on September 22, 2009, bore the correct style of the case; we have used the same style as did the trial court, which bears the name of the substituted plaintiff. The plaintiff's name was also spelled alternatively in the record Delores.


author: SMITH, Justice.

text:
    NEW ACTON COAL MINING COMPANY, INC. v. Tim WOODS et al.
    1081092.
    Supreme Court of Alabama.
    April 9, 2010.

      J. Mitchell Frost, Jr., and Bradley L. Hendrix of Ferguson, Frost & Dodson, LLP, Birmingham, for appellant.
    Garve Ivey, Jr., and Dustin Whisenhunt, Jasper; and John E. Warren III, Jasper, for appellees.
   SMITH, Justice.

Tim Woods, Connie Woods, James Har-land, Millie M. Harland, J.C. Pugh, and Bonnie Pugh (hereinafter referred to collectively as “the appellees”) and 20 other individuals and entities sued New Acton Coal Mining Company, Inc. (“New Acton”), in the Walker Circuit Court seeking damages for injury to their properties resulting from New Acton’s blasting operations. At the conclusion of a separate jury trial on the appellees’ claims against New Acton, the jury returned a verdict in favor of the appellees. The appellees, however, moved for a new trial arguing that the damages award was tainted by juror misconduct and was inadequate in light of the evidence they had presented at trial. The trial court granted the appellees’ motion, and New Acton appeals. We dismiss the appeal.

Facts and Procedural History

Twenty-six individuals and entities owning property near New Acton’s mining operations in Walker County (hereinafter referred to collectively as “the plaintiffs”) sued New Acton, alleging that New Acton’s blasting operations had damaged their properties, diminished the value of their properties, and caused them to suffer mental anguish. Because of the number of plaintiffs, New Acton moved the trial court to break the action into separate trials under Rule 42(b), Ala. R. Civ. P. In the motion, New Acton asserted that this action involves 13 sets of plaintiffs owning varying types of properties scattered over a wide area and that 13 separate trials were warranted for the convenience of the trial court and to avoid prejudice to the parties. The trial court denied the motion. New Acton then moved for reconsideration of the trial court’s denial of its motion for separate trials. Pursuant to that motion, the trial court then granted the motion for separate trials.

First, plaintiffs Jack Clark and Martha Clark tried their claims against New Acton to a jury. The jury returned a verdict in favor of New Acton, and, on April 17, 2008, the trial court entered a judgment on the jury’s verdict. The Clarks then filed a motion for a new trial, which the trial court denied.

The appellees then tried their claims against New Acton to a jury. On January 20, 2009, the jury returned the following verdicts: $27,500 for Tim Woods and Connie Woods; $20,000 for James Harland and Millie M. Harland; and $15,000 for J.C. Pugh and Bonnie Pugh. The appellees then filed a motion styled “Motion to Vacate Jury Verdict, for New Trial, for Judgment Notwithstanding the Verdict, for Mistrial, or for Such Other Relief as may be Appropriate Under the Circumstances” under Rule 59, Ala. R. Civ. P. On April 17, 2009, the trial court entered an order granting the appellees’ request for a new trial. New Acton now appeals from that order, arguing that in ordering a new trial the trial court exceeded its discretion.

Discussion

Before addressing the issues New Acton raises before this Court, we must consider whether we have jurisdiction over this action.

“A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction because ‘[i]t would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself.’ ”

Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008) (quoting Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930)). “ ‘ “As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties.."" North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344 (Ala.2008) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974), quoting in turn McGowin Inv. Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).

“ ‘ “An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). “[Wjithout a final judgment, this Court is without jurisdiction to hear an appeal.” Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).’ ”

Horn v. Brown, 4 So.3d 1106, 1108 (Ala.2008) (quoting Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006)).

New Acton asserts that this Court has jurisdiction over this action under § 12-22-10, Ala.Code 1975, which provides that “[ejither party in a civil case ... may appeal to the appropriate appellate court from an order granting or refusing a motion for a new trial by the circuit court.” We disagree, however, because an appeal under § 12-22-10 may be filed only in reference to a final judgment, and a final judgment was not entered in this action. In Galloway v. Arnold, 374 So.2d 1350 (Ala.1979), this Court considered whether § 12-22-10 authorizes a party to appeal from an order granting a motion to reconsider an interlocutory order issuing a preliminary injunction. This Court answered the question in the negative and dismissed the appeal, holding:

“We do not ... find that the new Rules of Civil Procedure authorize this court, under Code 1975, § 12-22-10, to review a grant or denial of an application for rehearing of an interlocutory order where there has been no final adjudication of any determinative issue in the case. Such a finding would be in derogation of the principles of finality expressed in such rules as Rule 54, [Ala. R. Civ. P.].”

374 So.2d at 1351 (citing Moody v. State ex rel. Payne, 351 So.2d 547 (Ala.1977)).

The judgment from which the appellees moved for a new trial is a nonfinal judgment because the appellees’ trial was only the second of 13 separate trials in this single action. The record indicates that under Rule 42(b), Ala. R. Civ. P., the trial court granted New Acton’s motion for 13 separate trials, that plaintiffs Jack Clark and Martha Clark tided their claims against New Acton in the first trial, and that the appellees tried their claims against New Acton in the second trial. Thus, from all that appears in the record, the claims of at least 11 plaintiffs are still pending.

Importantly, the trial court ordered separate trials under Rule 42(b); it did not sever the plaintiffs’ claims under Rule 21, Ala. R. Civ. P. A significant distinction exists between an order separating trials under Rule 42(b) and one severing claims under Rule 21 because “severed claims become independent actions with judgments entered independently, while separate trials lead to one judgment.” Universal Underwriters Ins. Co. v. East Cent. Alabama Ford-Mercury, Inc., 574 So.2d 716, 725 (Ala.1990). The Committee Comments adopted February 13, 2004, to Rule 21 explain:

“Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42(b). The distinction has at least the significance that a judgment on the first of two separate trials is not final, absent an order pursuant to Rule 54(b), Ala. R. Civ. P., while after a true severance a judgment on the first action to come to trial is final and appealable without reference to the proceedings in the severed action. Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.1976). ...”

In Key v. Robert M. Duke Insurance Agency, 340 So.2d 781, 783 (Ala.1976), this Court advised that “separate trials of different claims in a single action under Rule 42(b) usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 54(b)[, Ala. R. Civ. P.,] must be followed.” See also 10 Charles Alan Wright et al., Federal Practice and Procedure, Civil § 2656 (3d ed.1998) (noting that “the fact that separate trials have been ordered under Rule 42(b) does not affect the finality of the judgment entered following each separate trial for purposes of Rule 54(b)”).

Here, before the appellees moved for a new trial under Rule 59, the trial court did not direct the entry of a final judgment on the appellees’ claims under Rule 54(b), Ala. R. Civ. P. Consequently, the appellees’ motion for a new trial under Rule 59 and New Acton’s appeal of the trial court’s order granting that motion relate to a nonfinal judgment and, therefore, are improper. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) (“‘A Rule 59 motion may be made only in reference to a final judgment or order.’ ” (quoting Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999))); Galloway, 374 So.2d at 1351 (holding that an appeal under § 12-22-10, Ala.Code 1975, is proper only in relation to a final judgment). Accordingly, we vacate the trial court’s order granting a new trial, and we dismiss the appeal.

ORDER VACATED; APPEAL DISMISSED.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

      . The plaintiffs named in the complaint are R.L. Aaron, Sue Aaron, Clyde Thomas, Jeff Rigsby, Tim Woods, Jack W. Butler, Jack Clark, Martha Clark, Union Chapel United Methodist Church, Jimmy Aaron, Mary Frances Daniel, Dinah Sue Daniel Moon, James Harland, Millie M. Harland, Marie Turner, Karen Inmon, J.C. Pugh, Bonnie Pugh, Jerry Lawson, Brenda Lawson, Russ Haygood, Marie Haygood, Jim Woods, Connie Woods, Kenneth Gamble, and Vanessa Gamble.

      . Rule 42(b) provides that the trial court may order a separate trial of any claim "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.”

      . The record indicates the following plaintiffs remain: R.L. Aaron; Sue Aaron; Jimmy Aaron; Jack W. Butler; Dinah Sue Daniel Moon as the administratrix of the estate of Mary Frances Daniel; Kenneth Gamble; Vanessa Gamble; Dinah Sue Daniel Moon; Jeff Rigs-by; Marie Turner; and Union Chapel United Methodist Church. The trial court dismissed plaintiffs Jerry Lawson and Brenda Lawson on April 14, 2003. The trial court dismissed plaintiffs Clyde Thomas, Jim Woods, Russ Haygood, and Marie Haygood on April 30, 2003. New Acton moved to dismiss plaintiff Karen Inmon, but the record is unclear as to whether the trial court has ever granted this motion.

      . Rule 21, Ala. R. Civ. P., provides, in pertinent part: "Any claim against a party may be severed and proceeded with separately.” We note that New Acton’s six-page motion asking the trial court to reconsider its denial of New Acton’s "Motion for Separate Trials” includes one reference to "severance of the claims,” stating: "There does, however, exist a strong and convincing argument for severance of the claims — there is a significant possibility for prejudice against [New Acton].” However, the motion makes no reference to Rule 21, and New Acton's prayer for relief states:
      “Wherefore, premises considered and pursuant to Rule 42(b) of the Alabama Rules of Civil. Procedure, defendant [New Acton] respectfully requests this Court enter an Order granting its Motion to Reconsider its Motion for Separate Trials and order the plaintiffs' claims to be tried by jury in separate and individual trials.”
      (Emphasis added.) In addition, New Acton’s “Motion for Separate Trials” makes no reference to severing the plaintiffs’ claims or to Rule 21, and the record does not indicate that the clerk docketed severed claims with new civil-action case numbers. The Committee Comments adopted February 13, 2004, to Rule 21 advise:
      "To avoid ambiguity at the time of bifurcation and later uncertainty as to finality, a party seeking a severance or a separate trial should request that the court make clear whether a Rule 21 severance or a Rule 42(b) separate trial is intended. Opinion of the Clerk, 526 So.2d 584, 586 (Ala.1988), expressed the clerk’s opinion that the plaintiff in the severed action should pay a filing fee '[w]here a "true” severance under Rule 21 is ordered and the clerk dockets a separate case with a new civil action number.’ ”

      5. "Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).


text:
    Torie SPINKS v. AUTOMATION PERSONNEL SERVICES, INC.
    1081379.
    Supreme Court of Alabama.
    April 9, 2010.

      Wesley C. Edmond and Kimberly M. Bawgus of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellant.
    Richard E. Trewella and Bricker S. Daughtry of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   SMITH, Justice.

Torie Spinks appeals from an order of the Shelby Circuit Court insofar as the order granted the motion for a preliminary injunction filed by Automation Personnel Services, Inc. (“APS”). We reverse and remand.

I. Facts and Procedural History

On April 9, 2009, APS filed a complaint in the trial court against Spinks and Compensation Solutions, Inc., d/b/a PeopleLink HR (“PeopleLink”). The complaint alleged, among other things, that Spinks became employed by APS on April 14, 2003; that, on January 11, 2006, Spinks entered into a written employment agreement (“the employment agreement”) with APS; that the employment agreement contained a noncompetition clause and a nonsolicitation clause, both of which would become effective upon the termination of Spinks’s employment with APS; that Spinks resigned her employment with APS in March 2009 and, in violation of the noncompetition clause in the employment agreement, immediately became employed by PeopleLink; that Spinks also violated the nonsolicitation clause in the employment agreement after she was employed by PeopleLink; and that Spinks’s violations of the employment agreement were causing APS to suffer irreparable harm. The complaint asserted three counts: count one requested declaratory relief against both defendants; count two alleged breach of contract against Spinks; and count three alleged tortious interference with contractual relations against PeopleL-ink.

On May 4, 2009, APS filed both a motion for a temporary restraining order (“TRO”) and a motion for a preliminary injunction, seeking to enjoin Spinks “from her continued employment with ... PeopleLink” or, in the alternative, to enjoin “either [defendant from contacting any of APS’[s] current customers.”

On June 16, 2009, Spinks filed a “motion to compel arbitration and to dismiss or stay pending arbitration.” In the motion, Spinks contended that “[t]he relationship between [APS] and Spinks is governed by an arbitration agreement [ (‘the arbitration agreement’) ] ... executed by [APS] and Spinks on or about November 10, 2003.” Spinks also contended that the arbitration agreement required that “[a]ny dispute arising out of [Spinks’s] employment with [APS] ... will be submitted to binding arbitration.” Furthermore, Spinks contended that, “[a]s this case is properly the subject of arbitration, it should not have been filed in [the trial court],” and, thus, Spinks contended, the trial court “should dismiss [APS’s] claims against Spinks because all claims are subject to arbitration.”

After a brief hearing, the trial court, on June 30, 2009, entered an order providing as follows:

“1. The Court finds that [APS] has satisfied the evidentiary burden for obtaining a preliminary injunction.
“2. The Court orders Defendant Spinks to immediately cease her employment relationship with [PeopleLink], The Court further orders Defendant Spinks to immediately cease contacting any employees of [APS]; cease contact with any current customers of [APS]; and to otherwise cease violating her employment agreement with [APS].
“3. The Court orders Defendant Spinks and [PeopleLink] not to resume their employment relationship until a final resolution of this matter is reached.
“4. The Court hereby grants Defendant Torie Spinks’fs] Motion to Compel Arbitration and hereby compels the parties to arbitrate and stays all proceedings indefinitely.
“[5]. This case is hereby removed from the court’s trial docket. The Court will retain jurisdiction for purposes of enforcing this Preliminary Injunction.”

Spinks appeals from the trial court’s order insofar as it granted APS’s motion for a preliminary injunction.

II.Standard of Review

“ ‘ “[T]he grant of, or refusal to grant, a preliminary injunction rests largely in the discretion of the trial court and that court’s latitude in this area is considerable; if no abuse of that discretion is shown, its action will not be disturbed on appeal.” ’ Appalachian Transp. Group, Inc. v. Parks, 738 So.2d 878, 882 (Ala.1999) (quoting Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So.2d 17, 19 (Ala.1983)). This Court has defined an abuse of discretion as discretion that ‘ “exeeedfs] the bounds of reason, all the circumstances before the lower court being considered.” ’ Appalachian Transp. Group, 738 So.2d at 882. ‘ “Discretion exercised by the trial court with respect to a preliminary injunction is a legal or judicial one which is subject to review for abuse or improper exercise, as where there has been a violation of some established rule of law or principle of equity, or a clear misapprehension of controlling law,” ’ and where it is clear that the trial court exceeded its discretion, the appellate court will reverse the order or the judgment. 738 So.2d at 882-83 (quoting Teleprompter of Mobile, 428 So.2d at 19)(emphasis omitted).”

Butler v. Roome, 907 So.2d 432, 434 (Ala.2005).

III.Issues

Spinks raises five issues on appeal; however, the dispositive issues may be summarized as follows: (1) whether the trial court retained jurisdiction to issue the preliminary injunction against Spinks and PeopleLink when, in the same order, the trial court compelled APS’s claims against Spinks and PeopleLink to arbitration and stayed all proceedings; and (2) whether the trial court erred in issuing the preliminary injunction without requiring APS to post a bond.

IV.Discussion

A. Jurisdiction

On appeal, Spinks argues, without specific citation to any legal authority, that the trial court was without jurisdiction to issue the preliminary injunction. Specifically, Spinks argues that the arbitration agreement requires that all disputes arising out of her employment with APS must be submitted to binding arbitration; that neither the employment agreement nor the arbitration agreement “carve out an exception for injunctive relief’ or “provide the circuit court any authority to provide emergency injunctive relief,” Spinks’s brief, p. 16; and that “the American Arbitration Association Rules governing employment disputes provide th[at] interim relief may be awarded by the arbitrator.” Id. Accordingly, Spinks contends, the trial court was without jurisdiction to issue the preliminary injunction, and, thus, Spinks says, “the injunction must be dissolved.” Id.

Conversely, APS, citing Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008), argues that, “despite the existence of an enforceable arbitration agreement,” APS’s brief, p. 24, the trial court nonetheless had jurisdiction to issue a preliminary injunction in this case to preserve the status quo between the parties. Specifically, APS argues:

“In this case, ‘status quo’ means that APS should be allowed to continue to operate its business without interference from Spinks. Spinks should not be allowed to alter the original status quo, i.e., that APS can operate its business without Spinks trying to steal its clients or . employees, or otherwise compete against APS with the benefits of proprietary and confidential information obtained during her employment with APS. That is the status which, in the absence of an injunction, cannot' be otherwise protected. Should APS be forced to await a resolution of the dispute by arbitration, with Spinks continuing to solicit business from current clients of APS and to entice away APS employees, then irreparable damage would be done to APS’s business.”

APS’s brief, p. 26.

In Adkins, this Court noted that the “ ‘majority of federal courts ... have concluded that in limited situations a binding arbitration clause does not bar a plaintiff from seeking emergency injunctive relief or other provisional remedies in court.’ ” 12 So.3d at 1177 (quoting Drago v. Holiday Isle, L.L.C., 537 F.Supp.2d 1219, 1221 (S.D.Ala.2007)). This Court also noted that “[t]he court in Drago specifically adopted the reasoning of the Fourth Circuit Court of Appeals in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1052 (4th Cir. 1985), as a basis for concluding that it may order equitable relief ‘where an arbitral award could not return the parties substantially to the status quo.’ ” Adkins, 12 So.3d at 1177 (quoting Drago, 537 F.Supp.2d at 1222). The status quo is the “last uncontested status” of the parties preceding the commencement of the controversy. See Yeargin Constr. Co. v. Parsons & Whittemore Alabama Mach. & Servs. Corp., 609 F.2d 829, 831 (5th Cir. 1980) (citing Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 476 (9th Cir.1969)).

As the federal district court in Drago noted: “The analysis of whether an arbi-tral award could return the parties substantially to the status quo would appear to be identical or at least very similar to the analysis of irreparable harm .... ” 537 F.Supp.2d at 1222. In this case, if the trial court’s preliminary injunction was appropriately issued, an arbitral award likely could not return the parties to the status quo because, as the Fourth Circuit stated in Bradley:

“When [a former employee] breaches h[er] employment contract by soliciting h[er] former employer’s customers, a nonsolicitation clause requires immediate application to have any effect. An injunction even a few days after solicitation has begun is unsatisfactory because the damage is done. The customers cannot be ‘unsolicited.’ It may be impossible for the arbitral award to return the parties substantially to the status quo ante because the prevailing party’s damages may be too speculative.”

756 F.2d at 1054. Accordingly, we conclude that the trial court had jurisdiction to issue a preliminary injunction to preserve the status quo pending completion of the arbitration proceeding.

B. Payment of bond

On appeal, Spinks, citing Anders v. Fowler, 423 So.2d 838 (Ala.1982), and Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975), argues that the trial court erred by issuing the preliminary injunction because, Spinks says, “[t]he Order requires no bond from APS for the payment of costs, damages, and attorneys’ fees should it be found that Spinks was improperly enjoined, and the Order makes no specific finding based upon competent evidence that an exception to the mandatory bond requirement exists.” Spinks’s brief, pp. 17-18. We agree.

Rule 65(c), Ala. R. Civ. P., provides:

“No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.”

Also, “ ‘there are [other] necessary exceptions to such an absolute holding in all cases under Rule 65(c), such as requiring only a nominal security, or where the litigant is impecunious or the issue is one of overriding public concern.’ ” Anders, 423 So.2d at 840 (quoting Lightsey, 294 Ala. at 285, 315 So.2d at 434, citing in turn Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil § 2954, p. 529).

APS does not contend that any of the exceptions listed above apply in this case; instead, APS, citing several federal authorities, contends that “there is authority for the fact that this requirement [of posting a bond] is not absolute.” APS’s brief, p. 12. Specifically, APS notes that certain federal decisions have held that, under certain circumstances, district courts have the discretion to dispense with the bond requirement of Rule 65(c), Fed.R.Civ.P. Additionally, APS contends that this Court should apply in this case the rationale set forth in those federal decisions because, APS says, “Alabama courts have relied upon federal case law in the interpretation of Rule 65.” APS’s brief, p. 12 (citing Lightsey, 294 Aa. at 285, 315 So.2d at 434). Moreover, APS contends that

“[t]he rationale from the federal decisions is consistent with the express language of [Rule 65(c), Aa. R. Civ. P.], which only requires the giving of security ‘in such sums as the court deems proper.’ Further, as noted by the federal courts, the burden should be on the enjoined party to request a bond. Spinks did not make any request of the trial court for a bond prior to filing her appeal in this case.”

APS’s brief, p. 15.

Aabama law, however, clearly provides that “[i]t is mandatory that security be given under Rule 65(c), ‘unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.’ ” Anders, 423 So.2d at 840 (quoting Lightsey, 294 Ala. at 285, 315 So.2d at 434) (emphasis added); see also Chunchula Energy Corp. v. Ciba-Geigy Corp., 503 So.2d 1211, 1215 (Aa.1987) (stating that the provisions of Rule 65(c) are “mandatory”). Furthermore, this Court has long recognized the above-stated rule. See Ex parte Miller, 129 Ala. 130, 133, 30 So. 611, 612 (1901) (stating that “[t]here can be no injunction ... until the bond has been given”) (quoted with approval in Anders, 423 So.2d at 840, and Lightsey, 294 Ala. at 284, 315 So.2d at 433). APS’s arguments fail to convince us that we should alter this Court’s well established rule on this issue.

Here, the trial court issued a preliminary injunction without requiring APS to give security as mandated by Rule 65(c), Aa. R. Civ. P. Furthermore, the trial court failed to make “a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.” Anders, 423 So.2d at 840. As noted, “there can be no injunction ... until the bond has been given.” Anders, 423 So.2d at 840 (quoting Ex parte Miller, 129 Ala. at 133, 30 So. at 612, quoted with approval in Lightsey, 294 Ala. at 285, 315 So.2d at 434). Accordingly, “[ujnder the clear mandate of Rule 65(c), and the previous decisions of this court, we have no alternative but to reverse and remand.” Anders, 423 So.2d at 840; see also Chunchula Energy Corp., 503 So.2d at 1215-16 (stating that an injunction issued without the giving of security by the applicant “is defective and due to be reversed”).

V. Conclusion

Based on the foregoing, we reverse the trial court’s order insofar as it granted APS’s motion for a preliminary injunction, and we remand the cause to the trial court with directions to enter an order consistent with this opinion. Because the preliminary injunction is invalid as a matter of law as a result of the trial court’s failure to require APS to post a bond, see Anders, 423 So.2d at 840 (quoting Ex parte Miller, 129 Ala. at 133, 30 So. at 612), we preter-mit as unnecessary discussion of the other issues raised by Spinks’s appeal. See Anders, 423 So.2d at 841 (concluding that the trial court erred by issuing the preliminary injunction without requiring the applicant to post a bond and stating that “[o]ur holding requires that we pretermit discussion of the other issues raised by these appeals”).

REVERSED AND REMANDED WITH DIRECTIONS.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

      . The other defendant below, PeopleLink, is not a party to this appeal.

      . It is unclear whether APS is referring to Rule 65(c), Ala. R. Civ. P., or Rule 65(c), Fed.R.Civ.P., or both, when it states that "there is authority for the fact that this requirement [of posting a bond] is not absolute."

      . APS cites the following federal cases in support of its argument: International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir. 1974) ("[W]e have stated that, especially in view of the phrase — ‘as the court deems proper’ — the district court may dispense with security where there has been no proof of likelihood of harm to the party enjoined.” (citations omitted)); Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 136 (2d Cir.1997) ("Rule 65(c)[, Fed.R.Civ.P.,] gives the district court wide discretion to set the amount of a bond, and even to dispense with the bond requirement 'where there has been no proof of likelihood of harm, or where the injunctive order was issued "to aid and preserve the court’s jurisdiction over the subject matter involved.” ' ” (citation omitted)); Popular Bank of Florida v. Banco Popular de Puerto Rico,
        180 F.R.D. 461, 463 (S.D.Fla.1998) (“Although the language of Rule 65(c)[, Fed. R.Civ.P.,] appears to be mandatory, over the past twenty years, federa) courts have come to recognize that the district court possesses discretion over whether to require the posting of security.”); and Clarkson Co. v. Shaheen, 544 F.2d 624, 632 (2d Cir.1976) ("Because no request for a bond was ever made in the district court, and because, under Fed. R.Civ.P. 65, the amount of any bond to be given upon the issuance of a preliminary injunction rests within the sound discretion of the trial court ..., the district court may dispense with the filing of a bond.” (citations omitted)).

      . We note that, although federal authorities are persuasive when this Court interprets the Alabama Rules of Civil Procedure, federal authorities are not binding on this Court. See First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So.2d 727, 729 (Ala.1981).