author: STUART, Justice. STUART, Justice. MURDOCK, Justice

text:
    TOWN & COUNTRY PROPERTY, L.L.C., and Town & Country Ford, L.L.C. v. AMERISURE INSURANCE COMPANY and Amerisure Mutual Insurance Company Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. v. Amerisure Insurance Company Amerisure Mutual Insurance Company.
    1100009 and 1100072.
    Supreme Court of Alabama.
    Oct. 21, 2011.
    Opinion on Application for Rehearing Following Opinion on Return to Remand in case no. 1100009 Nov. 2, 2012.

      W. Scott Simpson, Howard K. Glick, and Hunter C. Sartin of Simpson, McMahan, Glick & Burford, PLLC, Birmingham, for appellants.

      Kile T. Turner and William H. McKenzie IV of Norman, Wood, Kendrick & Turner, Birmingham, for appellees Amerisure Insurance Company and Amerisure Mutual Insurance Company.
    James Jerry Wood, Home Builders Association of Alabama, Montgomery, for amici curiae National Association of Home Builders and Home Builders Association of Alabama, in support of the appellants.
    William P. Gray and William P. Gray, Jr., of Gray & Associates, L.L.P., Birmingham; and Shaun McParland Baldwin, Donald E. Elder, and Abraham Sandoval of Tressler LLP, Chicago, Illinois, for ami-ci curiae Property Casualty Insurers Association of America, in support of the appel-lees.
    J. Lister Hubbard and Richard H. Allen of Capell & Howard, P.C., Montgomery, for amicus curiae Alabama Associated General Contractors, Inc., in support of the appellants’ application for rehearing.
   STUART, Justice.

Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (hereinafter collectively referred to as “T & C”), sued Amerisure Insurance Company and Amer-isure Mutual Insurance Company (hereinafter collectively referred to as “Ameri-sure”) and Amerisure’s insured, Jones-Williams Construction Company, Inc., in the Jefferson Circuit Court pursuant to Alabama’s direct-action statute, § 27-23-2, Ala.Code 1975, alleging that Amerisure was obligated to pay a $650,100 judgment entered in favor of T & C and against Jones-Williams in a separate action pursuant to a commercial general-liability insurance policy (“CGL policy”) Amerisure had issued Jones-Williams (“the Amerisure policy”). The trial court entered a summary judgment in favor of Amerisure, and T & C now appeals. We affirm in part and remand with instructions.

I.

In January 1999, Jones-Williams contracted with Town & Country Property to construct an automobile sales and service facility for T & C in Bessemer. Jones-Williams then entered into contracts with various subcontractors to construct the facility, doing none of the actual construction work itself; construction was completed in August 1999. Town & Country Ford then leased the facility from Town & Country Property and began operating a Ford automobile dealership on the premises. Thereafter, T & C discovered various defects in the facility. Jones-Williams was notified of the defects and apparently made some attempts to correct them; however, on October 3, 2002, T & C sued Jones-Williams in the Jefferson Circuit Court, asserting various tort and contract claims stemming from the alleged faulty construction of the facility. Jones-Williams notified its insurer, Amerisure, of the action, and Amerisure agreed to provide a defense in accordance with the terms of the Amerisure policy.

T & C’s claims against Jones-Williams were tried before a jury, and on September 4, 2007, the jury returned a verdict in favor of T & C, awarding Town & Country Ford $34,100 and Town <& Country Property $616,000. Following the entry of a judgment on the verdict, Amerisure indicated that it would not indemnify Jones-Williams for the judgment entered against it, and on October 80, 2007, T & C initiated the action underlying these appeals, alleging that the award entered against Jones-Williams was covered by the Amerisure policy and seeking payment from Ameri-sure. Amerisure denied liability and filed a counterclaim seeking a judgment declaring that there had been no occurrence or accident triggering coverage under the Amerisure policy and that, even if there had been an occurrence, the policy excluded coverage for damage caused by Jones-Williams’s own faulty work. T & C argued that the faulty construction of the facility was itself an occurrence triggering coverage and that the damage was not the result of Jones-Williams’s work but the work of the subcontractors Jones-Williams had employed.

On February 13, 2009, Amerisure moved for a summary judgment. On April 19, 2010, T & C filed a motion opposing Amer-isure’s summary-judgment motion and seeking a summary judgment on its own behalf. Amerisure and T & C thereafter each filed additional responses and/or supplements to then' motions, and on July 26, 2010, the trial court conducted a hearing on the pending summary-judgment motions. On August 26, 2010, the trial court entered a summary judgment in favor of Amerisure, holding that, in Alabama, “faulty construction is not an ‘occurrence’ under a [CGL] policy.” T & C now appeals.

II.

We review T & C’s arguments on appeal pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

A valid judgment was entered in favor of T & C and against Jones-Williams. Accordingly, pursuant to the terms of the Amerisure policy, Amerisure is responsible for paying that judgment if the judgment was based on claims based on “property damage” caused by an “occurrence” as those terms are used in the Amerisure policy. The dispute before us is accordingly centered upon the interpretation of the Amerisure policy. The Amer-isure policy is itself an example of a CGL policy, which policies are widely used by contractors and generally employ standardized forms and terms. There is accordingly an extensive body of caselaw nationwide concerning the interpretation of such policies. In 2010, the Supreme Court of Indiana provided the following helpful background on the origination and object of these policies:

“Before discussing the issues at stake in this case, we provide some background information. CGL insurance policies are designed to protect an insured against certain losses arising out of business operations. Most CGL policies are written on standardized forms developed by an association of domestic property insurers known as the Insurance Services Office (‘ISO’). Hartford Fire Ins. Co. v. California, 509 U.S. 764, 772, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993). ‘[These] policies begin with a broad grant of coverage, which is then limited in scope by exclusions. Exceptions to exclusions narrow the scope of the exclusion and, as a consequence, add back coverage. However, it is the initial broad grant of coverage, not the exception to the exclusion, that ultimately creates (or does not create) the coverage sought.’ David Dekker, Douglas Green & Stephen Palley, The Expansion of Insurance Coverage for Defective Construction, 28 Constr. Law, Fall 2008, at 19, 20.
“The precursor of today’s standard commercial liability insurance contracts was promulgated in 1940 and has since undergone five principal revisions, the most recent of which came into use in 1986. Prior to 1986, the ISO had not significantly revised its standard commercial general liability form since 1973. Ernest Martin, Jr., Daniel T. Mabery, Erika L. Blomquist & Jeffrey S. Lowenstein, Insurance Coverage for the New Breed of Internet-Related Trademark Infringement Claims, 54 S.M.U. L.Rev. 1973, 1987-88 (2001) (‘ISO frequently makes minor revisions to its CGL form, but rarely undertakes a major, substantive overhaul.... The standard ISO form in existence before the 1986 revision was promulgated in 1973....’). ‘In the 1973 version of the [ISO’s CGL policy form], the work performed exclusion precluded coverage for property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.’ French v. Assurance Co. of Am., 448 F.3d 693, 700 (4th Cir.2006) (internal citations and quotations omitted) (emphasis added); see also 9A Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 132.9 at 152 (2002). The ‘on behalf of language was interpreted to mean that no coverage existed for damage to a subcontractor’s work or for damage to the insured’s own work resulting from a subcontractor’s work. See 9A Lee R. Russ, et al., Couch on Insurance 3d § 129:18 (2005); Holmes, supra, at 153.
“Many contractors were dissatisfied with this state of affairs because more and more projects were being completed with the help of subcontractors. See Russ, et al., supra, § 129:18 (‘Due to the increasing use of subcontractors on construction projects, many general contractors were not satisfied with the lack of coverage provided under [the 1973 ISO CGL] policies where the general contractor was not directly responsible for the defective work.’). In response to this dissatisfaction, beginning in 1976 an insured under the 1973 ISO CGL policy form could pay a higher premium to obtain a broad form property damage endorsement (the BFPD Endorsement) which effectively eliminated the ‘on behalf of language and excluded coverage only for property damage to work performed by the named insured. Id. Thus, liability coverage was extended to the insured’s completed work when the damage arose out of work performed by a subcontractor. Id.
“In 1986, as part of a major revision, the subcontractor exception aspect of the BFPD Endorsement was added directly to the body of the ISO’s CGL policy in the form of an express exception to the ‘Your Work’ exclusion. Id.; Limbach Co. LLC v. Zurich Am. Ins. Co., 396 F.3d 358, 362-63 (4th Cir.2005) (internal citations omitted). Thus, under the 1986 ISO CGL Policies, the ‘Your Work’ exclusion specifically provides that it ‘does not apply if the damaged work or the work out of which the damage arises was performed on [the insured contractor’s] behalf by a subcontractor.’ Appellants’ App. at 245. Copyrighted in 1994 and 1997, ... the CGL Polices at issue in this case post date the 1986 revisions and include a subcontractor exception to the Your Work’ exclusion.”

Sheehan Constr. Co. v. Continental Cas. Co., 935 N.E.2d 160, 162-63 (Ind.2010) (footnote omitted). The Amerisure policy in the present case is identical in all material respects to the CGL policies discussed in Sheehan. The initial grant of coverage in the Amerisure policy reads as follows:

“1. Insuring Agreement.
“a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies....
“b. This insurance applies to ‘bodily injury’ or ‘property damage’ only if: “(1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory’; and “(2) The ‘bodily injury’ or ‘property damage’ occurs during the policy period.”

The Amerisure policy further defines “property damage” as “[p]hysieal injury to tangible property, including all resulting loss of use of that property” and “[l]oss of use of tangible property that is not physically injured.” Finally, it also defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Moreover, consistent with the 1986 revision, the Amerisure policy contains an exclusion, commonly denom-mated the “your-work exclusion,” excluding coverage for any “ ‘[property damage’ to ‘your work’ arising out of it and included in the ‘products-completed operations hazard,’ ” and an exception, commonly denominated as the “subcontractor exception,” providing that the your-work exclusion “does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.” See Sheehan, 935 N.E.2d at 164 (describing terms of the CGL policy issued in that case identical to the terms in the Amerisure policy). In practical effect, the your-work exclusion and the subcontractor exception operate to exclude coverage for property damage caused by work performed by the insured contractor on his own behalf but to restore coverage for property damage caused by work performed by a subcontractor on behalf of the insured contractor. Both the your-work exclusion and subcontractor exception are implicated, however, only if there is first determined to be an “occurrence.”

This Court has previously considered cases requiring it to determine whether damage alleged to be the result of faulty workmanship is covered under a CGL policy, and, in each case, its decision has hinged on the nature of the damage caused by the faulty workmanship. Two eases originally decided on the same date in 1983 effectively illustrate the state of the law in this area: United States Fid. & Guar. Co. v. Warwick Dev. Co., 446 So.2d 1021 (Ala.1984) (“Warwick ”), and Moss v. Champion Ins. Co., 442 So.2d 26 (Ala.1983). In Warwick, the purchasers of a newly built house sued the builder, stating claims of faulty construction and misrepresentation, after taking possession of the house and discovering extensive defects in its construction. The builder then alleged a third-party claim against its insurer after it sought coverage for the purchasers’ claims pursuant to a CGL policy, and its request for coverage was denied. At the conclusion of a trial on all those claims, the trial court awarded damages to the purchasers and held that the insurer was required to indemnify the builder for the purchasers’ claims. On appeal, however, this Court reversed the judgment against the insurer, stating:

“The first issue is whether [the insurer’s] policy provided coverage for alleged faulty workmanship and noncomplying materials in the construction of plaintiffs’ residence when the alleged damage was confined to the residence itself. [The insurer] contends that the policy affords no coverage because (1) no insurable loss occurred with the policy period and (2) damages to the work of the insured attributable to faulty workmanship are expressly excluded from coverage. After a review of the record and the policy involved, we conclude that the trial court incorrectly held that [the insurer] was bound under its policy of insurance to [the builder]. In our view, there was no ‘occurrence’ within the definition of ‘occurrence’ found in the pertinent policy provisions. The policy clearly states that the company will pay damages for: ‘A. bodily injury or B. property damage to which this insurance applies caused by an occurrence.’ The [insurer’s] policy defines ‘occurrence’ as ‘an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.’ For a contrary holding under circumstances amounting to ‘an occurrence,’ see Moss v. Champion Ins. Co., 442 So.2d 26 (Ala.1983).”

Warwick, 446 So.2d at 1028. Thus, Warwick held that faulty workmanship itself is not an “occurrence.”

In Moss, however, a homeowner sued a contractor she had hired to reroof her house in order “to recover for damage she allegedly incurred due to rain which fell into her attic and ceilings because, as she claimed, the roof was uncovered much of the time that the re-roofing job was being performed.” 442 So.2d at 26. The contractor’s insurer argued that it was not required to provide a defense or to pay any judgment against the contractor because, it argued, the damage was not the result of an occurrence and was therefore not covered under the contractor’s CGL policy. Following a bench trial limited to deciding the insurance-coverage issue, the trial court ruled in the insurer’s favor, holding that the damage to the homeowner’s house was not the result of an occurrence. On appeal, we reversed the trial court’s judgment, stating:

“That the attempt was made to keep the roof covered as the work progressed was established by the testimony of [the homeowner] herself. That it became insufficient was not attributable to [the contractor], who, for aught that appears from the evidence, did not intend the damage, and who by his personal efforts could not have reasonably foreseen the negligence of his crews in their failure to follow his instructions. [The homeowner’s] complaint against him charged him with negligence (and breach of contract), not conscious acts made with intent to cause damage. His instructions establish his definite steps taken to prevent damage. And finally, after the ‘repeated exposure to conditions,’ the roof leaked. Thus, there was an ‘occurrence’ under the policy, and the [insurer] is obligated by the terms of the policy to defend the [homeowner’s] action and perform other duties contracted for thereunder.”

Moss, 442 So.2d at 29. Thus, in Moss we held that there had been an occurrence for CGL policy purposes when the contractor’s poor workmanship resulted in not merely a poorly constructed roof but damage to the plaintiffs attic, interior ceilings, and at least some furnishings. Reading Moss and Warwick together, we may conclude that faulty workmanship itself is not an occurrence but that faulty workmanship may lead to an occurrence if it subjects personal property or other parts of the structure to “continuous or repeated exposure” to some other “general harmful condition” (e.g., the rain in Moss) and, as a result of that exposure, personal property or other parts of the structure are damaged.

Accordingly, the trial court in this case properly relied on Warwick to hold that Amerisure was not required to indemnify Jones-Williams for the judgment entered against it insofar as the damages represented the costs of repairing or replacing the faulty work. We further note that the other Alabama cases cited by T & C in its brief support the distinction made in Warwick and Moss. See Alabama Plating Co. v. United States Fid. & Guar. Co., 690 So.2d 331, 336-37 (Ala.1996) (holding that insurer was required to provide coverage to company under a CGL policy for its costs associated with removing pollution from a stream on the company’s own property because damage to groundwater was not confined to the landowner); United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164, 1167 (Ala.1985) (holding that insurer was required to provide coverage to sewer-system contractor under the terms of CGL policy where contractor was sued for damage resulting from raw sewage flowing onto an adjacent landowner’s property during construction); and United States Fid. & Guar. Co. v. Bonitz Insulation Co. of Alabama, 424 So.2d 569, 573 (Ala.1982) (“If damage to the roof itself were the only damage claimed by the [plaintiff), the exclusions would work to deny [the roofing contractor] any coverage under the [CGL] policy. The [plaintiff], however, also claims damage to ceilings, walls, carpets, and the gym floor. We think there can be no doubt that, if the occurrence or accident causes damage to some other property than the insured’s product, the insured’s liability for such damage becomes the liability of the insurer under the policy”).

We are mindful that some other jurisdictions have interpreted CGL policies differently. However, the position we reaffirm today is shared by the majority of jurisdictions that have considered the issue. See, e.g., Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 73 (Ky.2010) (“The majority viewpoint, however, appears to be that claims of faulty workmanship, standing alone, are not ‘occurrences’ under CGL policies.”). Still other jurisdictions, though they concede that faulty workmanship may constitute an occurrence, nevertheless hold that the cost of repairing or replacing the defective construction itself is not covered by a CGL policy because the defective construction does not constitute “property damage” as that term is used in CGL policies. See, e.g., Crossmann Cmtys. of North Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 50, 717 S.E.2d 589, 594 (2011) (holding that the definition of “occurrence” in CGL policies is ambiguous and must therefore be construed in favor of the insured, but also clarifying “that negligent or defective construction resulting in damage to otherwise non-defective components may constitute ‘property damage,’ but the defective construction would not”). While differing in their rationales, both of these approaches are consistent with the general understanding that a CGL policy is intended “‘to protect an insured from bearing financial responsibility for unexpected and accidental damage to people or property’ ” while a performance bond is intended “ ‘to insure the contractor against claims for the cost of repair or replacement of faulty work.’ ” Essex Ins. Co. v. Holder, 372 Ark. 535, 539, 261 S.W.3d 456, 459 (2007) (quoting Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 923 (E.D.Ark.2005)). See also Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 335, 908 A.2d 888, 899 (2006) (“To permit coverage in [cases where faulty workmanship damages the work product alone] would convert CGL policies into performance bonds, which guarantee the work, rather than like an insurance policy, which is intended to insure against accidents.”).

IV.

T & C sued Amerisure seeking a judgment requiring Amerisure to pay the $650,100 judgment previously entered against Amerisure’s insured, Jones-Williams. The trial court entered a summary judgment in favor of Amerisure holding that it was not required to indemnify Jones-Williams because there had been no occurrence invoking coverage under the policy. For the reasons explained above, that judgment is now affirmed to the extent the awarded damages represented the costs of repairing or replacing the faulty work itself. We are remanding the case to the trial court so that it may consider arguments from the parties to determine if any of the damages awarded represented compensation for damaged personal property — e.g., computers and furnishings — or otherwise nondefective portions of the facility. That damage would constitute “property damage” resulting from an “occurrence,” and it would be covered under the terms of the Amerisure policy in light of the fact that all the construction work in this case was performed by a subcontractor and therefore the damage suffered as a result of that construction work would fall within the subcontractor exception to the your-work exclusion. Due return shall be made to this Court within 42 days of this opinion.

1100009 — AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

1100072 — APPEAL DISMISSED AS MOOT.

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

On Application for Rehearing Following Opinion on Return to Remand

STUART, Justice.

The opinion of June 29, 2012, is withdrawn, and the following is substituted therefor.

Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (hereinafter collectively referred to as “T & C”), appealed the summary judgment entered by the Jefferson Circuit Court in favor of Amerisure Insurance Company and Am-erisure Mutual Insurance Company (hereinafter collectively referred to as “Ameri-sure”) holding that Amerisure was not obligated to pay a $650,100 judgment entered on a jury verdict in favor of T & C and against Amerisure’s insured, Jones-Williams Construction Company, because, the trial court reasoned, the faulty construction of the T & C facility upon which the judgment was based was not an “occurrence” covered under the commercial general-liability (“CGL”) insurance policy Amerisure had issued Jones-Williams. On October 21, 2011, we affirmed in part the judgment entered by the trial court, agreeing that faulty construction did not in and of itself constitute an occurrence for CGL-policy purposes and that, accordingly, “Amerisure was not required to indemnify Jones-Williams for the judgment entered against it insofar as the damages represented the costs of repairing or replacing the faulty work.” Town & Country Prop., L.L.C. v. Amerisure Ins. Co., 111 So.3d 699, 706 (Ala.2011) (“Town & Country I”). However, we further recognized in Town & Country I that if damages had been awarded T & C to compensate it for damage the faulty construction later caused to personal property or some otherwise nondefective portion of the T & C property, then “[tjhat damage would constitute ‘property damage’ resulting from an ‘occurrence,’ and it would be covered under the terms of the Amerisure policy....” 111 So.3d at 708. See also United States Fid. & Guar. Co. v. Bonitz Insulation Co. of Alabama, 424 So.2d 569, 573 (Ala.1982) (“If damage to the roof itself were the only damage claimed by the [plaintiff], the exclusions would work to deny [the roofing contractor] any coverage under the [CGL] policy. The [plaintiff], however, also claims damage to ceilings, walls, carpets, and the gym floor. We think there can be no doubt that, if the occurrence or accident causes damage to some other property than the insured’s product, the insured’s liability for such damage becomes the liability of the insurer under the policy.”). Accordingly, we remanded the case for the trial court to review the record and to determine if any portion of the awarded damages could be justified on that basis.

On remand, the parties filed briefs with the trial court taking predictable positions: T & C argued that the vast majority of the $650,100 judgment should be attributed to covered damage, while Amerisure argued that the damages T & C sought for the repair and/or replacement of defective construction exceeded the amount of the verdict and thus none of the judgment should be attributed to covered damage to personal property or other portions of the T & C property. In its order resolving the issue on remand, the trial court identified $257,500 in damages claimed by T & C at trial as representing the repair or replacement of faulty construction. It therefore subtracted that amount from the $650,100 awarded by the jury and awarded T & C $392,600, plus interest and costs.

Upon a review of the record, it is evident that the $392,600 judgment entered by the trial court is not supported by the evidence. In its brief on return to remand, T & C argues that the trial court’s judgment entered on remand is justified as follows:

“The record evidence showed that— because of the faulty construction — water would leak into the building through doors, windows, walls, and floors. In addition, the parking lot, retaining wall, and other areas of the building suffered damage from settlement and erosion. Consequently, the water intrusion, settlement, and erosion caused extensive damage to several parts of the structure and to items that were otherwise sound.

T & C’s brief on return to remand, pp. 6-7 (citations to record omitted). However, it is apparent that much of the damage itemized by T & C in this regard is itself faulty workmanship for which Amerisure is not obligated to indemnify Jones-Williams. Moreover, although there was testimony indicating that carpet, computers, furnishings, and certain fixtures were also damaged — which damage might be attributable to an occurrence and thus be covered under the CGL policy — no evidence was presented of the cost required to repair that damage, and, accordingly, no portion of the awarded damages may be considered compensation for that damage. See Parsons v. Aaron, 849 So.2d 932, 949 (Ala.2002) (“[D]amages may not be awarded where they are remote or speculative. A jury must have some reasonable basis for the amount of its award.”).

In Town & Country I, we held that the cost of repairing faulty or defective construction itself was not covered by the terms of the CGL policy. With one minor exception discussed below, our review of the materials submitted to the trial court in the present case indicates that no evidence was introduced in the underlying trial as to the cost of repairing anything other than the defective construction itself. To the contrary, the only evidence as to the monetary amount of any damage suffered by the insured was the testimony of T & C’s own construction-defect expert who testified in the underlying trial that it would cost $751,346 to repair or replace the defective work at issue. Moreover, T & C’s argument to the jury in the underlying trial was that this amount was the amount the jury should award in damages. The jury awarded just over $650,000 in damages.

The only evidence of specific property damage caused by an occurrence identified by either the parties or the trial court and accompanied by evidence of a specific cost associated with repairing or replacing that damage concerns certain ceiling tiles. Amerisure concedes that there was testimony that nondefective ceiling tiles damaged by roof leaks had to be replaced at a cost of $600. The damage to the ceiling tiles is property damage caused by an occurrence, and, accordingly, T & C is entitled to damages in the amount of $600. The judgment entered by the trial court on remand is accordingly reversed, and the cause is again remanded for the trial court to enter a final judgment in favor of T & C for $600.

APPLICATION FOR REHEARING OVERRULED; OPINION OF JUNE 29, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I.

The main opinion states that “[t]he only evidence of specific property damage caused by an occurrence identified by either the parties or the trial court and accompanied by evidence of a specific cost associated with repairing or replacing that damage” is $600 worth of damage to certain ceiling tiles. Ill So.3d at 710. I agree.

I note that the construction-defect expert offered by Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (collectively “T & C”), Mark Moore, testified on pages 254-55 of the trial transcript, Record Vol. 7, p. 1205, that the cost of replacing “the blanket insulation” in the “pre-engineered” portion of the building (the rear of the building, which housed, among other things, the parts and maintenance areas) would be $52,500. Just prior to making this particular statement, Moore had stated, on page 258 of the transcript, that “the blanket insulation” would cost $52,000 to replace. In addition to using the same term to describe the insulation at issue, this earlier statement also was made in the context of questions regarding the correction of defects in the “pre-engi-neered” roof over the rear of the building.

T & C suggests that the $52,000 first referenced by Moore was intended as a separate amount, one that related to the replacement of insulation in the front portion of the building (the office and showroom area), as opposed to the replacement of insulation over the rear portion of the building. As such, according to T & C, the damage represented by that figure would represent “property damage” resulting from an “occurrence,” namely rainwater damage to a part of the structure other than the defectively constructed portion of the structure (the roof) that allowed the rainwater to penetrate.

I have considered whether T & C’s interpretation of Moore’s testimony is appropriate, i.e., whether we can and should conclude from Moore’s testimony that one of these two similar amounts may be attributed solely to the cost of replacing insulation in the front of the building that was damaged by rainwater and that was not itself part and parcel of a defectively installed roof. I cannot conclude that we can. As noted, Moore refers to both figures as the cost of replacing “the blanket insulation.” Further, both statements are made in the context of or with express reference to the “pre-engineered” rear of the building. Further still, the inclusion of an additional $52,000 would make it impossible to reconcile mathematically the sum of the individual repair and replacement costs listed by Moore throughout his testimony with the $751,346 total cost of repairs Moore himself calculates after listing the individual costs.

In other words, we have little choice but to conclude that Moore included in his final tally of damages a single amount, $52,500, attributable to the replacement of insulation. Even if we could conclude that this amount was not limited to the replacement of the insulation that was part of the defective roofing system covering the rear of the building, we have no testimony from which we could determine what portion of that cost should be attributed to the replacement of insulation in the front of the building. Without such testimony, this Court itself would have to engage in speculation to award some portion of this amount to T & C.

II.

That said, there is one additional matter I believe should be addressed in light of the arguments made by T & C and amicus curiae Alabama Associated General Contractors, Inc., to this Court on rehearing in the present case. This additional matter concerns the caveat we recognized in our essential holding in Town & Country Property, L.L.C. v. Amerisure Insurance Co., Ill So.3d 699, 712 (Ala.2011) (“Town & Country I ”).

The essential holding in Town & Country I was that “faulty workmanship itself is not an occurrence” within the meaning of a contractor’s comprehensive general-liability (“CGL”) policy. Specifically, we held as follows in our analysis in Part III of the opinion:

“Reading Moss [v. Champion Insurance Co., 442 So.2d 26 (Ala.1983),] and [United States Fidelity & Guaranty Co. v.] Warwick [Development Co., 446 So.2d 1021 (Ala.1984),] together, we may conclude that faulty workmanship itself is not an occurrence but that faulty workmanship may lead to an occurrence if it subjects personal property or other parts of the structure to ‘continuous or repeated exposure’ to some other ‘general harmful condition’ (e.g., the rain in Moss) and, as a result of that exposure, personal property or other parts of the structure are damaged.”

111 So.3d at 706 (emphasis added). In addition to the essential holding emphasized above, we recognized one caveat: “[Fjaulty workmanship may lead to an occurrence if it subjects personal property or other parts of the structure” to an accidental harmful condition that damages that “other part.” 111 So.3d at 706 (emphasis added).

In Part IV of our opinion in Town & Country I, we offered concluding comments and instructions to the trial court as to how to implement our decision on remand. In this portion of our opinion, we first reaffirmed the above-stated general rule by explaining that the trial court’s judgment in favor of Amerisure was affirmed “to the extent the ... damages [awarded to T & C in T & C’s underlying action against Amerisure’s insured, Jones-Williams Construction Company,] represented the costs of repairing or replacing the faulty work itself.” We then made the following statement, however, adding to the language we had earlier used in Part III to delineate the caveat to the general rule:

“We are remanding the case to the trial court so that it may consider arguments from the parties to determine if any of the damages awarded represented compensation for damaged personal property — e.g., computers and furnishings — or otherwise nondefective portions of the facility.”

111 So.3d at 708 (emphasis added).

In concurring in Town & Country I, I failed to take sufficient heed of the wording of the latter phrase and to consider the difference between it and the wording of the caveat as expressed in the analysis portion of our opinion. Concern has been expressed that the latter wording can be read as a restriction on the caveat recognized in Part III of our opinion in Town & Country I to parts of the structure completely free from any defect of their own, rather than simply to “other parts of the structure” apart from the defectively constructed portion primarily at issue. That is, concern has been expressed that the emphasized passage may be construed to mean that when one portion of a structure, such as a roof, is defectively constructed so as to allow into a building rainwater that damages some “other part of the structure,” such as a floor, there is no “occurrence” if the “other part of the structure” already had any defect of its own, even if that defect would not itself have necessitated repair or replacement costs equal to those necessitated by the water damage. This specific issue was not presented by the arguments made to us in Town & Country I. Further, as it now turns out, the record before us makes it unnecessary to address this issue in order to decide this case. Accordingly, I consider the issue reserved for another day.

      . T & C named Jones-Williams as a defendant based on Jones-Williams’s status as an indispensable party under § 27-23-2, Ala.Code 1975. See infra note 2. A default judgment was ultimately entered against Jones-Williams.

      . Section 27-23-2 states:
      "Upon the recovery of a final judgment against any ... corporation ... for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment.”

      . Two appeals were docketed in this case because there was some-uncertainty in the trial court regarding the finality of the summary judgment in favor of Amerisure. Although the trial court’s August 26, 2010, summary-judgment order disposed of all the claims between the remaining parties, T & C subsequently moved the trial court to explicitly make its judgment final pursuant to Rule 54(b), Ala. R. Civ. P. The trial court responded by entering an order allowing for an immediate review of the judgment pursuant to Rule 5, Ala. R.App. P.
      On October 4, 2010, while preparing its Rule 5 petition for a permissive appeal, T & C nevertheless filed the appeal docketed as case no. 1100009 to protect its appellate rights in the event the August 26, 2010, judgment was, in fact, a final judgment such that permission to appeal or a Rule 54(b) certification was unnecessary. T & C subsequently filed its petition for permission to appeal pursuant to Rule 5 as well, which was docketed as case no. 1100072. Because the judgment entered by the trial court on August 26, 2010, did dispose of all the claims between the parties, it was a final judgment, and T & C's October 4, 2010, appeal of that judgment was both timely and proper. Accordingly, the appeal docketed as case no. 1100072 is dismissed as moot.

      . On February 10, 1984, this Court withdrew its October 7, 1983, opinion in Warwick on rehearing and substituted a new opinion.

      . It is unclear to this Court whether there is any basis upon which to conclude that the judgment entered against Jones-Williams was intended to compensate T & C for anything more than the cost of repairing and/or replacing faulty work. Amerisure acknowledges that there was some testimony at the trial of T & C’s action against Jones-Williams regarding damaged furnishings but states that T & C's counsel did not ask the juiy for any damages related to those claims, instead asking for an award equal to the amount T & C's expert testified it would take to replace and repair the faulty work. T & C's position is unclear. Accordingly, on remand, the trial court may hear arguments from the parties on this point; however, the evidence upon which those arguments may be based is limited to that evidence already in the record. See, e.g., Ex parte Queen, 959 So.2d 620, 623 (Ala.2006) (holding that, on remand, the trial court was obliged to apply the law to the evidence already of record).

      “4 These intrusions caused damage to floors, floor coatings, walls, carpet, hallways, furniture, computers, ceiling tiles, insulation, the electrical box, paint of interior and exteri- or walls, and caused foul odors and stains. Soil settlement and erosion caused by water infiltration have caused widespread damage throughout the T & C facility, causing floor cracks and peeling in the showroom, the parts and service department, the lobby, 'alligator cracks’ to the vehicle display pad, and failure of the outer retaining walls. The floors in some areas of the building have become ‘mushy’ because of the repeated water intrusion caused by faulty construction, and are arguably unstable. Wind and storm damage caused cracks to the building structure itself."

      . It appears that T & C did not focus on proving this property damage at trial, instead emphasizing the larger amount of damages it sought to repair and/or replace the faulty construction that led to the damaged furnishings, etc. See Town & Country I, 111 So.3d at 706-07 n. 5 ("Amerisure acknowledges that there was some testimony at the trial of T & C's action against Jones-Williams regarding damaged furnishings but states that T & C’s counsel did not ask the jury for any damages related to those claims, instead asking for an award equal to the amount T & C’s expert testified it would take to replace and repair the faulty work.”).


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte Shirley SPENCER and Christy Gee. (In re Shirley Spencer and Christy Gee v. S. Boyd, Inc., et al.).
    1110319.
    Supreme Court of Alabama.
    Sept. 28, 2012.
    Rehearing Denied Nov. 16, 2012.

      W. Ivey Gilmore, Jr., of Gilmore Poole & Rowley LLC, Tuscaloosa; and Wilson F. Green of Fleenor & Green, LLP, Tuscaloosa, for petitioners.
    A. Courtney Crowder and Clay A. Tin-dal of Phelps, Jenkins, Gibson & Fowler, LLP, Tuscaloosa, for respondent S. Boyd, Inc.,
    Christopher J. Zulanas and Gwendolyn A. Gordon of Friedman, Leak, Dazzio, Zu-lanas & Bowling, P.C., Birmingham, for respondent K&K Excavating, LLC.
   PARKER, Justice.

Shirley Spencer and Christy Gee petition this Court for a writ of mandamus directing the Greene Circuit Court to vacate its judgment granting the motion of K & K Excavating, LLC (“K & K”), to enforce a forum-selection clause and transferring the petitioners’ action against K & K to the Tuscaloosa Circuit Court.

Facts and Procedural History

On February 27, 2007, Spencer contracted with K & K for the installation of a septic system at the petitioners’ house in Eutaw. The petitioners separately contracted with S. Boyd, Inc. (“Boyd”), to conduct the excavation work necessary to install the septic system. It is undisputed that the work of installing the septic system was performed under a written agreement between Spencer and K&K (“the contract”). The contract included a forum-selection clause, which states that “[vjenue and jurisdiction shall strictly and only be in the courts of Tuscaloosa County, Alabama.”

Following the installation of the septic system, the petitioners allege, they “began experiencing problems and noticing defects, incomplete work, inadequate work and other problems with their septic system and land.” As a result, on July 30, 2008, the petitioners sued K&K and Boyd, along with several fictitiously named defendants, in the Greene Circuit Court, alleging breach of contract; breach of express warranty; breach of implied warranty of fitness, habitability, and merchantability; and negligence, under numerous theories. The petitioners filed an amended complaint on December 30, 2008, adding Richard Stephen Boyd, the owner of Boyd, as a defendant (Boyd and Richard Stephen Boyd are hereinafter referred to collectively as “the Boyd defendants”).

On October 17, 2008, K&K answered the petitioners’ complaint, asserting improper venue as a defense. Specifically, K & K argued that the forum-selection clause in the contract was applicable to the petitioners’ claims. On the same day, K&K also initiated the discovery process by submitting its first set of interrogatories and request for the production of documents, including a request for the production of “[a]ny and all contracts and warranties [the petitioners] claim[ed] were breached by any defendant.” Extensive discovery ensued, including depositions taken by all parties and a motion to compel the petitioners to respond to K & K’s interrogatories and request for the production of documents. During the discovery process, K & K also subpoenaed nonparties.

On July 22, 2009, the Boyd defendants answered the petitioners’ amended complaint; the Boyd defendants made no argument concerning forum.

On November 4, 2010 — more than two years after K & K had filed its answer to the petitioners’ complaint, in which K & K invoked the forum-selection clause — K & K filed its motion entitled “motion to transfer venue or, in the alternative, motion to enforce forum selection clause” (“the transfer motion”).

On January 27, 2011, following numerous pretrial conferences, the Greene Circuit Court set the ease for a trial scheduled for April 4, 2011.

On February 15, 2011, the petitioners filed a response to the transfer motion arguing that K & K had waived its right to invoke the forum-selection clause as a result of K & K’s failure to timely file the transfer motion. The petitioners also argued that they would be prejudiced if their case was transferred out of the Greene Circuit Court because the case had already been set for trial and a transfer of the case would result in an unnecessary delay. The transfer motion was set for a hearing on March 23, 2011. On March 14, 2011, the parties filed a motion to continue the March 23, 2011, hearing on the transfer motion to allow the parties to attempt to mediate the case; this motion was also presented before the Greene Circuit Court on the day of the hearing. The parties also filed a motion to continue the April 4, 2011, trial. The trial court granted both motions on March 29, 2011.

When mediation of the case proved unsuccessful, the Greene Circuit Court ordered another pretrial conference to be held on August 25, 2011. On August 23, 2011, K <& K filed a reply brief in support of the transfer motion; the petitioners responded. At the August 25, 2011, pretrial conference, the Greene Circuit Court heard oral argument on the transfer motion. On August 31, 2011, the Boyd defendants filed a motion to join the transfer motion. On October 30, 2011, the Greene Circuit Court entered an order granting the transfer motion as to K & K and severing the petitioners’ claims against K & K from those asserted against the Boyd defendants; the Greene Circuit Court denied the transfer motion as to the Boyd defendants.

On November 17, 2011, Mr. Boyd filed a “suggestion of bankruptcy” in the Greene Circuit Court, which stated:

“COMES NOW the Defendant, Richard Stephen Boyd (‘Boyd’), and suggests the filing of a Petition for Relief pursuant to Chapter 13 in the United States Bankruptcy Court for the Northern District of Alabama. The Chapter 13 Petition was filed on or about September 9, 2011.... Boyd further suggests that this action has been stayed by operation of Title 11 U.S.C. § 362.”

On November 29, 2011, the Boyd defendants filed a motion to alter, amend, or vacate the Greene Circuit Court’s October 30, 2011, order, seeking to have the claims against them transferred to the Tuscaloosa Circuit Court as well. Before the Greene Circuit Court ruled on the Boyd defendants’ motion to alter, amend, or vacate, the petitioners petitioned this Court for a writ of mandamus directing the Greene Circuit Court to vacate its judgment granting the transfer motion on December 12, 2011; the petitioners have not requested that the proceedings in the Greene Circuit Court be stayed.

As a result of Mr. Boyd’s filing a petition for bankruptcy, the petitioners filed a motion to dismiss Mr. Boyd as a defendant, without prejudice, which the Greene Circuit Court granted on January 26, 2012. The petitioners also state in their reply brief that they “withdraw their [pjetition as to their claims against Mr. Boyd individually.”

Standard of Review

“ ‘A writ of mandamus is a
“ ‘ “drastic and extraordinary writ, that will issue only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).”

Ex parte Fuller, 955 So.2d 414, 415 (Ala.2006).

Discussion

Initially, Boyd argues that this Court lacks jurisdiction over the petition based on the automatic stay entered pursuant to 11 U.S.C. § 362 at the time Mr. Boyd filed his suggestion of bankruptcy on November 17, 2011. We disagree. The automatic stay entered in the Greene Circuit Court as a result of Mr. Boyd’s filing his suggestion of bankruptcy applied only to litigation against Mr. Boyd, not against his solvent codefendants. In Bradberry v. Carrier Corp., 86 So.3d 973 (Ala.2011), this Court, dealing with a similar situation, stated:

“The plaintiffs argue that the trial court’s order setting the defendants’ motions for a summary judgment for a hearing and requiring the plaintiffs to submit substantive responses to those motions violated the automatic-stay provision of the Bankruptcy Code. This argument is premised on the plaintiffs’ general contention that Leslie Controls’ filing for bankruptcy completely stayed all litigation in which Leslie Controls was involved, including litigation involving solvent codefendants.
“... Section 362 of the Bankruptcy Code provides, in part:
“ ‘§ 362. Automatic Stay
“‘(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
“ ‘(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.... ’
11 U.S.C. § 862. Section 362 specifically states that the filing of a bankruptcy petition operates as a stay of the continuation of a judicial action against a debtor. Section 362 makes no references to a stay of judicial actions against the debtor’s solvent codefendants.
“Beyond the plain language of § 362, courts have consistently held that the automatic-stay provision of § 362 does not act to stay proceedings against a debtor’s solvent codefendants. In Snow v. Baldwin, 491 So.2d 900 (Ala.1986), L.C. Baldwin sold the Bidgood Stationery Corporation to Lamar Snow and George Reasonover. Subsequently, Baldwin and his wife sued Snow and Reasonover seeking damages for default on a promissory note executed as part of the sale of the corporation. Reasonover filed a petition in bankruptcy during the pendency of the action, and the action was stayed as to him. The Baldwins informed the trial court that they wished to sever Reasonover from the action and to proceed against only Snow. Although the trial court never entered a formal order severing Reasonover, the action proceeded to trial solely against Snow. Citing Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (10th Cir.1984), this Court concluded that the automatic-stay provision of § 362 does not affect a party’s right to proceed against solvent codefendants. Snow, 491 So.2d at 902 n. 2.”

Bradberry, 86 So.3d at 981-82 (footnote omitted).

It is well established that the automatic stay entered pursuant to § 362 pertained only to litigation against Mr. Boyd, not his solvent codefendants. Therefore, the petitioners’ filing of their petition with this Court was a nullity as to Mr. Boyd, but nothing divested this Court of jurisdiction over the petition as to the solvent parties, K & K and Boyd. Further, Mr. Boyd has since been dismissed as a party in the case below, and the petitioners have withdrawn their petition as to their claims against Mr. Boyd. Clearly, we have jurisdiction over the petition insofar as it concerns K & K and Boyd, Mr. Boyd’s solvent codefen-dants.

We now turn to the merits of the petition. The petitioners do not challenge the validity of the forum-selection clause. Instead, the petitioners argue only that K & K waived its right to enforce the forum-selection clause “by defending the lawsuit in Greene County for two years, through multiple pretrial conferences and completion of party discovery.” We agree.

It is a well established principle of Alabama law that “[p]arties are free to contract as they will, provided they contract within the law.” Perkins v. Skates, 220 Ala. 216, 218, 124 So. 514, 515 (1929). Forum-selection clauses are not against public policy in Alabama, and parties are free to contractually agree to a specified forum in which all litigation is to be litigated. See Brown v. Alabama Chem. Co., 207 Ala. 215, 216, 92 So. 260, 260-61 (1922)(recognizing the validity of forum-selection clauses). However, a party may waive its right to enforce a contractual right in certain circumstances. Concerning waiver in the context of a forum-selection clause, this Court stated in Ex parte Textron, Inc., 67 So.3d 61, 66 (Ala.2011):

“Our research has not disclosed, and the parties have not cited, an Alabama case dealing with waiver in the context of a forum-selection clause. Regarding the waiver of rights under a contract generally, this Court has stated:
“ ‘The question of waiver, the voluntary surrender of a known right, is in the main a question of intention, and the authorities hold that, to be effectual, it must be manifested in some unequivocal manner; if not express, then by such language or conduct as to evince clearly the intention to surrender. Bennecke v. Insurance Co., 105 U.S. 355, 26 L.Ed. 990 [(1881)]; Balfour v. Parkinson (C.C.) 84 Fed. 855, 861 [(1898)]. Quoting Sanborn, J., in Rice v. Fidelity & Deposit Co., 103 Fed. 427, 435, 43 C.C.A. 270, 278 [(1900)]:
“ ‘ “To constitute a waiver, there must be an intention to relinquish the right, or there must be words or acts calculated to induce the other contracting party to believe, and which deceive him into the belief, that the holder of the right has abandoned it.”
“ ‘ “A waiver will not be implied from slight circumstances, but must be evidenced by an unequivocal and decisive act, clearly proved.” 29 Am. & Eng. Law, p. 1105.’
“Isom v. Johnson, 205 Ala. 157, 159-60, 87 So. 543, 545 (1920).”

Thus, in Textron, we made it clear that a party may waive its right to enforce a forum-selection clause, as it may with other contract provisions, by evincing an intention to do so. We note that no rigid rule exists for determining what constitutes a waiver of the right to enforce a forum-selection clause; the determination whether there has been a waiver must, instead, be based on the particular facts of each case.

Under the facts of this case, K & K’s substantial invocation of the litigation process in Greene County clearly evinced its intention to abandon its right to enforce the forum-selection clause in favor of the judicial process. Cf. Crews v. National Boat Owners Ass’n Marine Ins. Agency, Inc., 46 So.3d 933, 939 (Ala.2010) (holding that “ ‘a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process’ ” (quoting Companion Life Ins. Co. v. Whitesell, 670 So.2d 897, 899 (Ala.1995))); In re ADM Investor Servs., Inc., 304 S.W.3d 371, 374 (Tex.2010)(analogizing a party’s waiver of its rights under arbitration agreement by the party’s substantial invocation of the litigation process to a party’s waiver of its rights under a forum-selection clause); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 548 n. 7, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) (recognizing that “[t]he only ground on which one might distinguish [arbitration and forum-selection] clauses is that another federal statute, the Federal Arbitration Act, makes arbitration clauses enforceable, whereas no analogous federal statute exists for forum selection clauses”); and Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)(“An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.”). tioners’ complaint, K & K argued that the Greene Circuit Court was an improper forum based on the forum-selection clause in the contract. We can confidently conclude that, at the time K & K filed its answer, K & K knew that the petitioners were suing it under the contract based on K & K’s reliance upon the contract in its answer. However, K & K did not file the transfer motion at that time. Instead, K & K substantially invoked the litigation process for 25 months after filing its answer by filing responsive pleadings, engaging in extensive discovery and pretrial conferences, and attempting to resolve the case through mediation. It was not until trial was inevitable that K & K invoked the forum-selection clause by filing the transfer motion. By this time, both the parties and the Greene Circuit Court had invested substantial time and resources in the action. K & K’s actions indicated its intention to abandon its contractual right to try the case in the Tuscaloosa Circuit Court.

Conclusion

Under the circumstances presented, we conclude that K & K waived its contractual right to enforce the forum-selection clause based on K & K’s intention to abandon said right, evidenced by its substantial invocation of the litigation process. Therefore, we grant the petition and direct the trial court to vacate its order granting the transfer motion.

PETITION GRANTED; WRIT ISSUED.

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

      . The filing of a petition for the writ of mandamus does not divest the trial court of jurisdiction or stay the case. State v. Webber, 892 So.2d 869, 871 (Ala.2004).

      . Boyd filed a motion to strike the order attached to the petitioners' reply brief, arguing that the order dismissing Mr. Boyd from the case was not part of the record. Boyd has not cited any relevant authority to support its argument. Instead, Boyd relies upon authorities indicating that this Court cannot consider matters outside the record when considering a direct appeal. This case is distinguishable in that what is before us is a petition for a writ of mandamus; no record has been certified as final by the trial court.
      We note that Boyd also filed a motion to strike one of the attachments to the petition, a document entitled "Alabama Unified Judicial System, Fiscal Year 2010 Annual Report & Statistics," on the basis that the report had not been submitted to the Greene Circuit Court for its consideration. We will not consider the report in our consideration of the petition.

      . K & K argues that its delay in filing the transfer motion was the result of allegedly necessary discovery to determine if the petitioners were, in fact, relying upon the contract as the basis of their claims against K & K. This argument is disingenuous, because K & K relied upon the contract in answering the petitioners’ complaint. Further, nothing kept K & K from filing the transfer motion at the outset of the case based on the forum-selection clause in the contract. If the petitioners were not relying upon the contract (although K & K does not suggest any other contract that could have formed the basis of the petitioners' action), that fact would have been determined at that time by the Greene Circuit Court.

      . The parties spend considerable time arguing that Ex parte Soprema, Inc., 949 So.2d 907 (Ala.2006), supports their respective positions. Soprema is distinguishable from this case, however, because in that case the party seeking to enforce the forum-selection clause filed a motion to dismiss based on improper venue early in the litigation process, and the trial court denied the motion because it determined that further discovery needed to be completed to determine if the forum-selection clause applied to the particular claims raised. Here, it is undisputed that the forum-selection clause applies to the petitioners' claims, and K & K waited to file the transfer motion until 29 months after the petitioners filed their complaint.


author: PITTMAN, Judge. MOORE, Judge,

text:
    Cyndi BOOTH v. NEWPORT TELEVISION, LLC.
    2100413.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied June 22, 2012.

      Richard L. Watters, Mobile, for appellant.
    W. William Wasden and Kristin Taylor Ashworth of Burr & Forman, LLP, Mobile, for appellee.
   PITTMAN, Judge.

Cyndi Booth appeals from a summary judgment entered in favor of Newport Television, LLC (“Newport”), by the Mobile Circuit Court. We reverse and remand.

In October 2008, Booth sued Newport, seeking a judgment declaring that a confidentiality, trade secrets, and noncompete agreement (“the noncompete agreement”) that she had signed while employed by Clear Channel Broadcasting, Inc. (“Clear Channel”), was invalid; Newport had purchased certain assets of Clear Channel, including the television stations that Booth was then working for, and subsequently became Booth’s employer. Additionally, Booth asserted a claim against Newport alleging tortious interference with business relations. Newport filed an answer denying Booth’s claims and asserted a counterclaim seeking a judgment declaring the validity of the noncompete agreement and Newport’s right to enforce the noncompete agreement. Booth denied the claim asserted against her by Newport.

In December 2009, Booth filed a motion for a summary judgment on her claim seeking a declaratory judgment. In January 2010, Newport responded in opposition and attached to its response the affidavit of Hamlet T. Newsom, Jr., a representative of Clear Channel. Booth thereafter filed a reply to Newport’s response, as well as a motion to strike Newsom’s affidavit. Booth filed a supplemental reply in support of her motion for a summary judgment in June 2010.

Newport filed a motion for a summary judgment in October 2010 as to all claims (both Booth’s declaratory-judgment claim and her tortious-interferenee-with-business-relations claim, as well as its claim seeking a declaratory judgment). Booth responded in opposition in November 2010 and filed another motion to strike New-som’s affidavit. Newport thereafter replied to Booth’s response in opposition, as to which Booth filed a rebuttal in December 2010.

In January 2011, the trial court heard oral arguments for each summary-judgment motion and Booth’s motions to strike Newsom’s affidavit. The trial court thereafter denied Booth’s motions to strike and entered a summary judgment in Newport’s favor as to all claims. Booth timely appealed to the Alabama Supreme Court on January 20, 2011; the supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

The record reveals the following facts. Booth first signed a confidentiality, trade secrets, and noncompete agreement with Clear Channel in March 2004, and, shortly thereafter, she was hired as a sales associate at a television station owned by Clear Channel. In November 2006, Booth signed the noncompete agreement at issue.

In April 2007, Newport purchased certain assets of Clear Channel, including WPMI and WJTC, the television stations for which Booth was then working. The terms of the sale were set forth in an asset-purchase agreement (“the purchase agreement”) entered into by Clear Channel and Newport. Newport contends that Booth was offered and accepted employment with Newport in April 2007. Newport also contends that, pursuant to the purchase agreement, Booth’s noncompete agreements were assigned to Newport.

On September 80, 2008, Booth was offered a job by WKRG, a competitor of WPMI and WJTC (“the competing station”). Booth submitted a written letter of resignation to Newport, in which she did not indicate that she had been offered a job, or that she had accepted a job, with the competing station; the record indicates that Booth intended for that letter to be her “two-weeks notice.” In a letter dated October 1, 2008 (the day after the date of Booth’s resignation letter), Newport’s general counsel reminded Booth of the noncompete agreements she had signed in 2004 and in 2006. Booth contends that, at that time, a representative of Newport informed the competing station that it would file a lawsuit against the competing station and Booth if the competing station hired Booth; she alleges that, as a result, the competing station refused to hire her.

The record shows that Booth was employed by Newport until October 17, 2008. Newport contends that the general manager of WPMI and WJTC “urg[ed Booth] to reconsider” before eventually deciding to “accept[ her] resignation” on October 17, 2008, because Booth “would not commit to remaining employed with Newport.” Booth, however, asserts that she had told representatives of Newport “that she would not resign her position pending a determination by a court as to the enforceability of the non-compete agreement” but that Newport had, ostensibly, terminated her employment.

The trial court determined as a matter of law that the purchase agreement was ambiguous because, it held, it was unclear whether, pursuant to the terms of the purchase agreement, Booth’s employment contract or the noncompete agreement had been assigned to Newport, and, thus, whether Newport could enforce the non-compete agreement.

The relevant portions of the purchase agreement that identified and addressed the purchase of Clear Channel’s assets, which included its contracts, are as follows:

“[Article] 1.1. Station Assets. On the terms and subject to the conditions set forth in this agreement, at the Closing (as defined in Section 1.9), Seller [Clear Channel] shall sell, assign, transfer, convey and deliver to Buyer [Newport], and Buyer shall purchase and acquire from Seller, all right, title and interest of Seller in and to the Station Assets. ‘Station Assets ’ means all of the assets, rights and properties used or held for use exclusively on the ownership and operation of the Stations, including each of the following assets and properties of Seller, other than any such asset or property that is described in Section 1.2:
“(d) the following contracts, agreements and leases (including employment agreements, collective bargaining agreements, real property leases, income-producing leases and agreements for the sale of advertising time on the Stations) to which Seller is party (collectively, the ‘Station Contracts ’) and all rights thereunder (other than the Retained Party Rights (as defined in Section 1.5): (i) all contracts agreements and leases listed on Schedule 1.1(d) and (ii) all other contracts, agreements and leases that relate exclusively to the operation of the Stations or the ownership of the Station Assets, including without limitation those made between the date hereof and the Closing in accordance with Article 4....
“[Article] 2.8 Contracts. Schedule 1.1(d) sets forth a true and complete list of all contracts, agreements and leases that relate exclusively to the operation of the Stations or the ownership of the Station Assets (including, without limitation, all contracts for the sale of advertising time, programming and film contracts, syndication contracts, national sales representation contacts, employment contracts, retrotransmission (must carry) contracts, distributions contracts and network affiliation contracts, collective bargaining agreements, Real Property leases, income-producing leases and agreements), other than
“(a) contracts for the sale of time on Stations which are for cash at rate card values consistent with prior practices for the periods in question and with not more than twelve (12) months remaining in their terms or “(b) contracts which were entered into in the ordinary course of business and (i) which are terminable on thirty (30) days’ notice or less without penalty or premium, or (ii) did not impose monetary obligations on Seller in 2006, and are not reasonably expected to impose monetary obligations on Seller in 2007, in excess of [redacted amount] and which impose no material restrictions on the operation of the Stations. The Station Contracts requiring the consent of a third party to assignment are identified with an asterisk on Schedule 1.1(d). Each of the Station Contracts (including without limitation each of the Real Property Leases) is in full force and effect and is binding upon Seller and, to Seller’s knowledge, the other parties thereto (subject to bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally). Seller has performed its obligations under each of the Station Contracts in all material respects and is not in material default thereunder, and to Sellers knowledge, no other party to any of the Station Contracts is in default thereunder in any material respect.”

An extensive list of contracts, including specific employment contracts identified by the respective employee’s name, was set forth in Schedule 1.1(d) of the purchase agreement; neither Booth’s employment contract nor the noncompete agreement was listed. Upon its review of the above-quoted sections of the purchase agreement, the trial court concluded that the purchase agreement was ambiguous. The trial court stated:

“If station contracts assigned are listed on Schedule 1.1(d) as set out by Article 1.1(d) and Article 2.8 warrants that all contracts that relate exclusively to the operation of the stations are listed on Schedule 1.1(d), what purpose or effect is given Article l.l(d)(ii) which provides in the conjunctive that assigned contracts are all contracts that relate exclusively to the operation of the stations ?”

Upon determining that the purchase agreement was ambiguous, the trial court permitted Newport to submit parol evidence as to its meaning. At that time, Newport submitted Newsom’s affidavit, which stated that, pursuant to Article 1.1(d) of the purchase agreement, Newport had been assigned Clear Channel’s right to enforce the noncompete agreement.

On appeal, Booth contends (1) that the trial court erred in concluding, as a matter of law, that Newport had the authority to enforce the noncompete agreement and (2) that the trial court erred in entering a summary judgment in favor of Newport as to her tortious-interference claim. We address each issue in turn.

Summary judgment is appropriate 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)(8), Ala. R. Civ. P. Once a party seeking summary judgment demonstrates 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 Cnty., 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)). This court is 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 Manners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)); see also Ex parte Neese, 819 So.2d 584, 587 (Ala.2001) (quoting Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)).

We begin by addressing the summary judgment insofar as it declares that Newport has the authority to enforce the non-compete agreement against Booth. Booth’s argument is twofold. Booth argues that the trial court erred in determining that the purchase agreement between Newport and Clear Channel was ambiguous and that it was unclear whether, pursuant to the purchase agreement, Newport has been assigned the noncom-pete agreement; further, Booth asserts that Newsom’s affidavit, which was admitted as parol evidence to reconcile the perceived ambiguity, should have been struck from the record (as Booth had urged in her motion to strike). Additionally, Booth contends that, even if the trial court was correct in determining that the purchase agreement was ambiguous, it erred in ruling on the scope of the purchase agreement — i.e., whether the purchase agreement effected an assignment of the noncompete agreement — should have been determined by a jury. On the other hand, Newport argues that the purchase agreement was ambiguous, that the trial court therefore properly considered parol evidence as to the scope of the purchase agreement, and that, even if the purchase agreement was not ambiguous, the noncompete agreement was nonetheless assigned to Newport under the terms of the purchase agreement.

In interpreting a contract, a trial court must heed the following principles:

“If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written. See Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 396, 398 (Ala.2000); Ex parte Hagan, 721 So.2d 167, 173 (Ala.1998). A court may not twist the plain meaning of the terms in the contract to create an ambiguity under the guise of interpretation. See [Universal Underwriters Life Ins. Co. v.] Dutton, 736 So.2d [564,] 570 [ (Ala.1999) ]. The primary source for deciding whether a contract is clear is the text of the document itself. ‘It is well established in Alabama that when an instrument is unambiguous its construction and legal effect will be based upon what is found within its four corners. The determination of whether an instrument is ambiguous is a question of law for the court to decide.’ Austin v. Cox, 523 So.2d 376, 379 (Ala.1988). Even if some ambiguity does exist in a contract, a court has the duty to accept a construction that will uphold the contract, rather than one that will make it invalid. See Wilson v. World Omni Leasing, Inc., 540 So.2d 713, 716 (Ala.1989).”

Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000).

In this case, the trial court reasoned that the purchase agreement was ambiguous because the purpose of Article l.l(d)(ii) was unclear in light of Article 1.1(d)(i) and Article 2.8. We disagree. The plain language of Article 1.1(d) provides that the contracts intended to be assigned to Newport are the contracts listed in Schedule 1.1(d) and “all other contracts ... that relate exclusively to the operation of the stations, or the ownership of the Station Assets, including ... those made between the date hereof and the Closing....” (Emphasis added.) The use of the word “other” to modify the term “contracts” in subsection (ii) of Article 1.1(d) implies that the category of contracts to which the subsection refers (which includes those “that relate exclusively to the operation of the Stations”) falls under the same category of contracts as those identified in subsection (i); the use of the word “other” indicates that the contracts listed on Schedule 1.1(d) are also contracts “that relate exclusively to the operation of the Stations.... ”

But for the use of the word “other” modifying the term “contracts” in subsection (ii), Article 1.1(d) could be interpreted broadly as identifying two categories of station contracts, if the subsections are read in isolation: those contracts listed in Schedule 1.1(d) and those contracts considered to “relate exclusively to the operation of the Stations, or the ownership of Station Assets.” However, the provisions of a contract are to be interpreted in context; specific provisions are not read in isolation. See Certain Underwriters at Lloyd’s, London v. Kirkland, 69 So.3d 98, 101 (Ala.2011).

In this case, Article 2 of the purchase agreement, in which Clear Channel sets forth its representations and warranties to Newport, prevents interpretation of Article 1.1(d) as identifying such separate categories of contracts; further, to ignore Article 2 would defeat the purpose of that entire article. Article 2.8 represents and warrants to Newport that Schedule 1.1(d) is a “complete list of all contracts ... that relate exclusively to the operation of the Stations or the ownership of the Station Assets.... ” Critically, not only does Article 2.8 reiterate that the contracts to be assigned are listed in Schedule 1.1(d), but it identifies the category of assigned contracts using language identical to that used in Article 1.1(d)(ii). Put simply, Article 1 of the purchase agreement outlines the categories of assets (including contracts) to be transferred to Newport, and Article 2 explains the substance of each category. Specifically, with regard to contracts, Article 1.1(d) provides that those contracts listed in Schedule 1.1(d) and “all other contracts ... that relate exclusively to the operation of the Stations....” are to be assigned to Newport; Article 2.8 merely explains what is encompassed in the category of contracts “that relate exclusively to the operation of the Stations....”

In concluding that Article l.l(d)(ii) served an unclear purpose and thereby rendered the purchase agreement ambiguous, the trial court overlooked significant language in that subsection intending to include contracts entered into between the date of the agreement and the closing. To conclude that there was an ambiguity in the purchase agreement as to whether the noncompete agreement was being assigned would require us to ignore the clear, explicit language of Article 2.8, which uses precisely the same language as the language in subsection (ii) of Article 1.1(d) to identify the category of contracts to be assigned and states that “a complete” list of those contracts is set forth in Schedule 1.1(d). Therefore, Article l.l(d)(ii) clearly expresses the parties’ intent to include within the scope of the purchase agreement those contracts entered into between the date of the agreement and the closing that fall within those categories of contracts defined under Article 2.8 but could not be specifically identified in time to be included in Schedule 1.1(d).

Although we have determined that the purchase agreement was not ambiguous, we reject Newport’s contention that Article 1.1(d)(ii) “clearly”' contemplates that the noncompete agreement would be assigned to Newport. As we have explained, subsection (ii) of Article 1.1(d) refers to the contracts that “relate exclusively to the operation of the Stations.... ” that are identified in Article 2.8. Article 2.8 does not provide that those contracts are the ones listed in Schedule 1.1(d) and contracts that, “relate exclusively to the operation of the Stations....”; rather, it plainly states that the purchase agreement assigns those contracts listed in Schedule 1.1(d) and identifies the category of contracts that are listed on the schedule. It is evident that Article 2.8 was intended to provide Newport with a broad categorical overview of the types of contracts included in Schedule 1.1(d).

Not only is it undisputed that Booth’s employment contract and noncompete agreement were entered into before Newport purchased Clear Channel’s assets, the fact that Booth’s employment contract is not included among the numerous employment contracts listed in Schedule 1.1(d) is telling. Newport explains in its brief to this court that the contracts listed in Schedule 1.1(d) were the “actual contracts of employment with highly-compensated on-air talent, producers, etc. as opposed to ancillary employment agreements such as non-compete agreements, confidentiality agreements, etc.” It argues that Alabama law does not require that noncompete agreements be explicitly identified and named separately in the purchase agreement in order to effectuate their assignment. Although Newport is correct as to the law in this regard, its argument is misplaced. Regardless of whether the parties to the purchase agreement were required by law to identify noncompete agreements as being subject to the purchase agreement in order to effectuate an assignment of the noncompete agreements, the terms of the purchase agreement provided that the noncompete agreement was required to be listed if it was intended to be assigned.

Because one would have to ignore the plain language of the purchase agreement in order to conclude that it is ambiguous, thereby warranting the admission of parol evidence, we conclude that the trial court erred (a) in determining that the purchase agreement was ambiguous, (b) in admitting and considering parol evidence, and (c) in ultimately concluding that, as a matter of law, Newport had been assigned the noncompete agreement and thus had the authority to enforce that agreement.

Next, we consider whether the trial court erred in entering a summary judgment in favor of Newport on Booth’s claim that Newport had tortiously interfered with her business relationship with the competing station. Booth contends that Newport failed to demonstrate that there was no genuine issues of material fact as to whether it was justified in contacting the competing station and warning it that Booth had signed a noncompete agreement and that, if it hired Booth, it would be named (along with Booth) in a lawsuit to enforce the noncompete agreement against Booth.

In its summary-judgment motion, Newport asserted that it had been justified in contacting the competing station and that it had not wrongfully interfered with Booth’s relationship with the competing station. On appeal, Newport contends that the trial court’s entry of a summary judgment in its favor on Booth’s tortious-interference claim was proper because, it argues, the noncompete agreement had been assigned to it and the station with which Booth had been planning to work was its competitor. Thus, Newport maintains there was no unlawful restraint of trade and that any interference by Newport had been merely to advance its interests by enforcing the noncompete agreement against Booth.

The following elements must be shown “by substantial evidence” to establish a prima facie case of tortious interference with business relations: “(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage.” White Sands Group, L.L.C. v. PRS II, L.L.C., 32 So.3d 5, 14 (Ala.2009). Both parties concede that Booth presented evidence as to each element sufficient to meet her burden of demonstrating a prima facie case of tor-tious inference. At issue is whether the trial court properly determined that no genuine issue of material fact existed as to whether Newport’s interference was justified and that, therefore, Newport was entitled to a judgment as a matter of law.

Newport first argues that evidence indicating that Newport wrongfully enforced the noncompete agreement against Booth is not enough, by itself, to sufficiently establish that Newport wrongfully interfered with her relationship with the competing station. Newport states that Booth’s failure to demonstrate that Newport had engaged in fraud, misrepresentation, physical violence, threats of illegal conduct, or similar conduct proves fatal to her claim because evidence of such conduct is a proper factor to be considered in determining whether Newport’s actions were justified. In support of that position, Newport relies on White Sands. We reject Newport’s argument. Newport had the burden to show that its actions were justified; Booth had no burden to show that Newport’s actions were unjustified. Newport’s assertion that Booth was required to demonstrate fraud, misrepresentation, or similar conduct is baseless. In White Sands, the court opined that “[i]t would be ... illogical to require” a plaintiff to present evidence of fraud, force, or coercion in order to make a prima facie showing of tortious interference. 32 So.3d at 12. In fact, the court expressly stated that “the elements of the tort of wrongful interference with a business relationship do not include a showing of fraud, force, or coercion.” 32 So.3d at 14.

The supreme court has explained the following regarding whether a defendant is justified in interfering with business relations:

“ ‘Whether a defendant’s interference is justified depends upon a balancing of the importance of the objective of the interference against the importance of the interest interfered with, taking into account the surrounding circumstances. Restatement (Second) of Torts § 767 (1979), and Comments. The restatement utilizes the term “improper” to describe actionable conduct by a defendant. Non-justification is synonymous with “improper.” If a defendant’s interference is unjustified under the circumstances of the case, it is improper. The converse is also true. Section 767 of the Restatement lists, and the Comments explain, several items that we consider to be among the important factors to consider in determining whether a defendant’s interference is justified:
“ ‘ “(a) the nature of the actor’s conduct,
“ ‘ “(b) the actor’s motive,
“ ‘ “(c) the interests of the other with which the actor’s conduct interferes,
“‘“(d) the interests sought to be advanced by the actor,
“ ‘ “(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“ ‘ “(f) the proximity or remoteness of the actor’s conduct to the interference, and
““‘(g) the relations between the parties.”
‘Restatement (Second) of Torts § 767 (1979).’
“[Gross v. Lowder Realty Better Homes & Gardens,] 494 So.2d [590,] 597 n. 3 [ (Ala.1986) ].”

White Sands, 32 So.3d at 12-13.

In White Sands, our supreme court held that “[justification is generally a jury question,” unless a defendant presents evidence, such as affidavits and depositions, that is not controverted. White Sands, 32 So.3d at 18 (citing Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403, 408 (Ala.1990)).

In the trial court, Newport’s argument that its interference was justified was based on its assertion that it had been assigned the noncompete agreement and therefore had the authority to enforce that agreement. Concluding that the noncom-pete agreement had been assigned to Newport, the trial court, therefore, determined that Newport’s actions had been justified. Because we are reversing the trial court’s decision as to whether Newport had been assigned the noncompete agreement and therefore had the authority to enforce that agreement, it is necessary to engage in a factual inquiry to determine whether Newport’s interference with Booth’s relationship with the competing station was justified. In determining whether a genuine issue of material fact exists, we are required to construe the evidence in the light most favorable to the nonmoving party, which in this case is Booth. See Miller, supra. In light of the fact that Newport was not authorized to enforce the noncompete agreement, we hold that a genuine issue of material facts exists as to whether Newport was justified in interfering with Booth’s relationship with the competing station.

Based on the foregoing reasons, we reverse the judgment of the trial court, and we remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

MOORE, Judge,

concurring in part and concurring in the result.

I conclude that Newport Television, LLC (“Newport”), failed to establish its right to enforce the noncompete agreement against Cyndi Booth. See Clark Substations, L.L.C. v. Ware, 838 So.2d 860 (Ala.2002) (requiring evidence of a valid assignment of a noncompete agreement before a successor corporation is entitled to enforce that agreement); and Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d 90, 93 (Ala.1981) (“There must be an affirmative showing of an intent to assign. Strickland & Co. v. Lesesne & Ladd, 160 Ala. 213, 49 So. 233 (1909). ‘The owner must do or say something which would indicate a transfer of his claim or right to another.’ 160 Ala. at 217, 49 So. 233.”). Absent' such affirmative evidence, there can be no assignment.

In Clark Substations, supra, our supreme court stated:

“The Alabama Business Corporation Act deals specifically with a sale-of-assets transaction. See § 10-2B-12.02, Ala.Code 1975. Section 10-2B-12.02 does not provide that the mere purchase of a corporation’s assets, without a valid assignment of specific contract rights, gives the purchaser all the rights of the seller of those assets. Therefore, it does not express any legislative intent inconsistent with the policy disfavoring non-competition agreements expressed in § 8 — 1—1[, Ala.Code 1975]. Under these circumstances, this Court must conclude that Clark Substations is not a successor entitled to enforce the noncompetition agreements executed by Ware and Edwards in the course of their employment with Clark Corporation.”

838 So.2d at 365. Because Clear Channel Broadcasting, Inc., did not merge into Newport, we must determine if Clear Channel made a valid assignment of Booth’s noncompete agreement to Newport.

A detailed review of the language of the Asset Purchase Agreement (“(he APA”) fails to affirmatively establish that Clear Channel intended to assign Booth’s non-compete agreement to Newport. In the APA, Clear Channel and Newport specifically identified numerous employment contracts that were to be assigned to Newport as a result of the asset purchase; however, Booth’s contract with Clear Channel was not listed in the APA. Additionally, in light of Alabama’s policy disfavoring agreements in restraint of trade, see Ala. Code 1975, § 8-1-1,1 cannot conclude that the affidavit of Hamlet T. Newsom, Jr., which was offered only after this dispute had arisen as an attempt to establish the necessary “‘affirmative showing of an intent to assign’ ” Booth’s noncompete agreement to Newport, is sufficient to meet Newport’s burden of proof on this issue. Russell, 408 So.2d at 93.

I, therefore, concur in the result that the trial courn’s judgment — declaring that Newport is entitled to enforce the noncom-pete agreement — must be reversed. I concur with the main opinion’s treatment of Booth’s claim of tortious interference with business relations.

      . At the time the affidavit was filed, Newsom served as vice president, assistant secretary, and associate general counsel of Clear Channel.

      . Booth was initially hired in March 2004 as a sales associate for WJTC, one of Clear Channel's television stations. In March 2005, Booth became employed as an account executive for WPMI, another television station owned by Clear Channel. Booth worked exclusively for WPMI for approximately one year, and thereafter she began working as an account executive for both WPMI and WJTC.

      . Newport argues that the fact that the purchase agreement does not mention noncom-pete agreements among the assets that are excluded from the purchase agreement is indicative of Clear Channel’s intent to assign noncompete agreements. We disagree. The fact that Clear Channel intended to specify certain categories of excluded assets does not contradict its express intent (in Article 2.8) to assign the contracts identified in Article 1.1(d), some of which were listed in Schedule 1.1(d).

      . The trial court’s oversight is apparent; in quoting Article 1.1(d) in its summary judgment, it omitted the last, crucial clause of subsection (ii) relating to the period between when the purchase agreement was executed and the closing.

      . Notably, Article 2.8 includes examples of the types of contracts listed on the schedule; although employment contracts are among the types of contracts listed, noncompete agreements are not explicitly mentioned.

      .Newsom’s affidavit stated that Booth’s employment contract was explicitly assigned to Newport in another section of the purchase agreement; however, our review of the purchase agreement and the rest of the record on appeal reveals no such explicit assignment of Booth's employment contract to Newport.

      . We, therefore, need not address Booth’s argument that Newsom’s affidavit should have been struck from the record.