author: BOLIN, Justice. MURDOCK, Justice MOORE, Chief Justice

text:
    Ex parte TRANSPORTATION LEASING CORP. and Aquilex Hydrochem, LLC. (In re Ronald Weir v. Aquilex Hydrochem, LLC, et al.).
    1120326.
    Supreme Court of Alabama.
    May 3, 2013.

      Joseph H. Driver, Thomas L. Oliver II, and Andrew P. Anderson of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner Transportation Leasing Corp.; and Richard E. Broughton and Benjamin C. Heinz of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioner Aquilex Hydrochem, LLC.
    David M. Cowan, Vestavia Hills, for respondent.
   BOLIN, Justice.

Transportation Leasing Corp. (“TLC”) and Aquilex Hydrochem, LLC (“Aquilex”), petition this Court for a writ of mandamus ordering the Perry Circuit Court to vacate its order denying TLC and Aquilex’s motion to dismiss the action without prejudice to refile in Mississippi in accordance with the doctrine of forum non conveniens and to enter an order dismissing the action without prejudice. We grant the petition and issue the writ.

Facts and Procedural Histoi'y

On July 21, 2011, Ronald Weir, a resident of Mississippi, was severely injured in an automobile accident in Meridian, Mississippi. On July 18, 2012, Weir filed a complaint in the Perry Circuit Court naming as defendants TLC, Aquilex, Floyd Hershey, and Gordon Booker and alleging negligence, wantonness, and negligent en-trustment. In his complaint, Weir alleged that TLC was a corporate entity whose principal office is located in Illinois and that Booker, an Alabama resident, was operating a vehicle owned by TLC when the accident occurred. Weir alleged that Aquilex was a corporate entity whose principal office is located in Ohio and that Hershey, a resident of Ohio, was operating a vehicle owned by Aquilex when the accident occurred. Weir sued TLC, Aquilex, Booker, and Hershey. TLC and Aquilex have been served with notice of the action, but Booker and Hershey have not.

On August 22, 2012, TLC and Aquilex (hereinafter collectively referred to as “the petitioners”) filed a motion to dismiss in the trial court on the ground that Mississippi was a more convenient forum than the Perry Circuit Court for the following reasons: (1) Weir is a resident of Mississippi; (2) the accident occurred in Mississippi; (3) the accident was investigated by the Meridian Police Department; (4) the investigating police officer, Tommie Coker, is a resident of Mississippi; (5) Aquilex’s principal office is located in Ohio; (6) TLC’s principal office is located in Illinois; (7) a witness to the accident, Dean Harper (who also is a police officer), resides in Mississippi; and (8) Hershey resides in Ohio. The petitioners argue that Mississippi is a more convenient forum because Booker is the only connection the action has to Alabama and the majority of witnesses and accident-related documents are in Mississippi. In support of the motion, the petitioners attached an affidavit from Officer Coker, who investigated the accident. In the affidavit, Officer Coker stated that it would be inconvenient and a hardship for him to travel to Alabama to testify. The petitioners also attached an affidavit from Officer Harper, who happened to be an eyewitness to the accident. Officer Harper stated in his affidavit that it would be inconvenient and a hardship for him to travel to Alabama to testify. The petitioners also filed an affidavit from the father of another person injured in the accident regarding the residency of the injured person, but the affidavit was not notarized.

On October 30, 2012, Weir filed a motion to strike the affidavits filed in support of the motion to dismiss. That same day, Weir also filed a response to the motion to dismiss, arguing that the petitioners had failed to demonstrate that all the claims arose outside of Alabama because one of Weir’s claims was a negligent-entrustment claim based on negligent entrustment that occurred in Perry County, Alabama, when TLC entrusted its vehicle to Booker. Weir also argued that the petitioners’ argument that the majority of witnesses and accident-related documents are in Mississippi is inaccurate because Booker is from Alabama and Weir’s accident-reconstruction expert witnesses are from Alabama. Last, Weir argued that neither of the officers in his affidavit stated definitely that he would not attend a deposition or a trial in Alabama, only that it would be inconvenient.

On November 7, 2012, the trial court entered an order striking the affidavit that had not been notarized but refusing to strike Officer Coker’s and Office Harper’s affidavits. That same day, the trial court denied the petitioners’ motion to dismiss. On December 18, 2012, the petitioners timely filed a petition for a writ of mandamus.

Standard of Review

A petition for a writ of mandamus is the appropriate method for obtaining review of a ruling denying a motion to dismiss based on the doctrine of forum non conveniens. Ex parte Kia Motors America, Inc., 881 So.2d 396 (Ala.2003).

“Mandamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘A petition for the writ of mandamus is a proper method for presenting a venue challenge based on the doctrine of forum non con-veniens.’ Id. (citations omitted). We apply the abuse-of-discretion standard when considering a mandamus petition challenging a venue ruling, and we will not issue the writ unless the trial court exercised its discretion in an arbitrary and capricious manner. Id.”

Ex parte Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala.2000). Furthermore, our review is limited to those facts that were before the trial court. Ex parte Jim Burke Auto., Inc., 776 So.2d 118,120 (Ala.2000).

Discussion

Section 6-5^430 provides:

“Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

(Emphasis added.)

“The purpose of the doctrine of forum non conveniens is to ‘prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.’ ” Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala.2003) (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995)). “Under § 6-5^430 a trial court must dismiss without prejudice ‘if, upon motion of a defendant, it is shown that there exists a more appropriate forum outside the state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justiceEx parte Da-imlerCh'rysler Co't’p., 952 So.2d 1082, 1087 (Ala.2006) (quoting Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998)).

“The doctrine of forum non conve-niens requires a court to determine whether to accept or to decline jurisdiction of claims arising outside the state. Ex parte Integon Coip., 672 So.2d 497 (Ala.1995). ‘Initially, the party seeking dismissal must show that the claim[s] arose outside Alabama. Next, that party must show that an alternative forum exists.’ 672 So.2d at 499; Ex parte Preston Hood Chevrolet, Inc., 638 So.2d 842, 845 (AJa.1994); Ex parte Employers Ins. of Wausau, 590 So.2d 888, 893 (Ala. 1991); Jerome A. Hoffman & Sandra C. Guin, Alabama Civil Procedure § 2.148 (2d ed. 2000) (‘A party seeking dismissal under § 6 — 5-^430 must establish that the claim to be dismissed arose elsewhere than in Alabama.’ (footnote omitted)).
“Thus, the trial court is compelled to dismiss an action without prejudice if ... it is shown that there exists a more appropriate forum outside the state....”

Ex parte Kia Motors, 881 So.2d at 399-400.

Pursuant to § 6-5-430, a defendant seeking dismissal of an action based on the doctrine of forum non conveniens must show that the plaintiffs claims arose outside of Alabama and that a more appropriate forum exists based on the location of the acts giving rise to the action, the convenience of the parties and witnesses, and the interests of justice. Malsch v. Bell Helicopter Textron, Inc., 916 So.2d 600 (Ala.2005). We note that the petitioners have agreed to a stipulation of a dismissal without prejudice that allows Weir to file an action in Mississippi and that they have also agreed to waive any defense based on the statute of limitations.

In Ex parte Kia Motors, supra, several residents of Florida were riding in a 1998 Kia Sephia automobile when they were involved in a high-speed crash with another car in Florida. The Sephia left the roadway, came to rest in a pasture, where it caught fire and burned. Only one occupant of the automobile survived. The representatives of the estates of the decedents filed an action in the Houston Circuit Court against Kia Motors America and Kia Motors Corporation (both of which are headquartered outside of Alabama) and against the automobile dealership located in Houston County, Alabama, where the automobile had been purchased. The plaintiffs asserted products-liability, breach-of-warranty, negligence, and wantonness claims against Kia and products-liability and breach-of-warranty claims against the dealership. Kia and the dealership filed a motion to dismiss the Alabama action based on the doctrine of forum non conveniens because the accident occurred in Florida and the majority of the witnesses and documents related to the accident were located in Florida. They argued that the interests of justice required that the case be heard in Florida. One of the issues was where the breach-of-warranty claim arose. This Court concluded that under Alabama’s Uniform Commercial Code, for the purposes of a motion to dismiss based on the doctrine of forum non conveniens, a breach-of-warranty claim arises where the injury occurred. Accordingly, we held that all the plaintiffs’ claims arose in Florida and that the Alabama action should be dismissed without prejudice.

Weir does not dispute that his negligence and wantonness claims arose in Mississippi. However, Weir argues that his negligent-entrustment claim arose in Perry County, Alabama, because TLC entrusted its vehicle to Booker in Perry County. Weir argues that the foundation of a negligent-entrustment claim focuses on the act of entrustment and the entrus-tee’s incompetence and that, therefore, the location of the accident involving the en-trustee is not necessarily where the negligent-entrustment claim arose.

We recognize that to succeed on a negligent-entrustment claim, the plaintiff must prove that the entrustor knew or had reason to know of the entrustee’s incompetence. Liao v. Harry’s Bar, 574 So.2d 775 (Ala.1990). Although an entrustor may be guilty of negligent entrustment of a vehicle to an incompetent driver, he or she may not be held liable for such negligence unless the injury is proximately caused by the incompetence of the entrus-tee. Keller v. Kiedinger, 389 So.2d 129 (Ala.1980). “[0]ne who entrusts an automobile to an incompetent driver, incompetent as a matter of law or in fact, is guilty of negligent entrustment; however, the entrustor’s liability for such entrustment depends upon an injury proximately resulting from the incompetency of the en-trustee.” Bonds v. Busier, 449 So.2d 244, 245 (Ala.Civ.App.1984).

In Jones Express, Inc. v. Jackson, 86 So.3d 298 (Ala.2010), the parents of a motorist brought a wrongful-death action against the trucking company and truck driver involved in the accident in which the motorist was killed. The parents alleged that the trucking company had negligently hired, retained, and supervised the truck driver and that the truck driver had negligently collided with the motorist’s car. The jury found in favor of the parents on their negligent hiring, retention, and supervision claim. However, the jury found in favor of the truck driver on the parents’ negligence claim. We held that the jury’s finding that the truck driver was not negligent was inconsistent with a finding that the trucking company was negligent in hiring and supervising the driver. We explained that implicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee’s incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiffs injury.

“It has been stated generally that, in order for an employer to be liable for the negligent hiring, training, retention, and supervision of its employee, the plaintiff must also prove ‘wrongful conduct’ on the part of the employee. University Fed. Credit Union v. Grayson, 878 So.2d 280, 291 (Ala.2003) (‘[A] party alleging negligent supervision and hiring must prove the underlying wrongful conduct of the defendant’s agents.’); Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1073 (Ala.2003) (‘A party alleging negligent or wanton supervision and hiring must also prove the underlying wrongful conduct of employees.’); see also Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999) (holding that a jury verdict against an employer based on negligent training and supervision of a supervisor who allegedly sexually harassed a fellow employee could not stand where the jury also exonerated the supervisor); Smith v. Boyd Bros. Transp., Inc., 406 F.Supp.2d 1238, 1248 (M.D.Ala. 2005) (‘Under Alabama law, the finding of underlying tortious conduct is a precondition to invoking successfully liability for the negligent or wanton training and supervision of an employee.’); and Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D.Ala. 2002) (‘In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed ... [a] tort.’).”

86 So.3d at 304.

We recognize that in order to prove negligent entrustment, the plaintiff must present evidence indicating that the entrustment was negligent, e.g., that an unreasonable risk of harm was created by placing control of a motor vehicle in the hands of an incompetent driver. In the present case, there will likely be evidence presented of the alleged negligent entrustment, which occurred in Alabama. However, an entrustor may not be held liable for negligence unless the injury is proximately caused by the incompetence of the entrustee, and, therefore, for the purposes of the doctrine of forum non conveniens, negligent entrustment of a motor vehicle does not arise until the negligent act is committed by the entrustee. Here, the accident and any alleged negligence that caused the accident occurred in Mississippi.

In the present case, the automobile accident giving rise to the negligence, wantonness, and negligent-entrustment claims occurred in Mississippi. We now turn to the question whether Mississippi is an alternative forum. The accident occurred in Mississippi. Weir resides in Mississippi, and the petitioners (the only defendants who have been served in the action) do not reside in either Alabama or Mississippi. The accident was investigated by the Meridian, Mississippi, Police Department. The investigating police officer is a resident of Mississippi. The investigating officer and at least one eyewitness have asserted that it would be inconvenient and a hardship for them to travel to Alabama to testify. Weir asserts that neither of the affidavits definitively state that the witness would not be able to or would have refused to testify in Alabama. In Ex parte Ben-Acadia, Ltd., 566 So.2d 486 (Ala.1990), this Court stated that, in addition to taking into account the location of the acts giving rise to action, the convenience of the parties and witnesses, and the interests of justice, the trial court, in determining whether a dismissal of the action on the basis of the doctrine of forum non conveniens should be granted, should consider

“the relative ease of access to sources of proof, the location of the evidence, the availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining the attendance of willing witnesses, the possibility of a view of the premises, if a view would be appropriate to the action, and any other matter in order to assess the degree of actual difficulty and hardship that would result to the defendant in litigating the case in the forum chosen by the plaintiff.”

566 So.2d at 88. Nothing in our caselaw provides that the witness state that he or she refuses to testify instead of indicating that testifying in the initial forum will present a hardship and would be inconvenient. After all, the entire purpose of the doctrine of forum non conveniens is to relieve a defendant of the undue burden of litigating in an especially inconvenient forum.

Weir also argues that the expert witnesses he expects to call to testify regarding accident reconstruction are from Alabama and that those witnesses will be inconvenienced by having to travel to Mississippi. As we indicated in Ex parte Da-imlerChrysler Corp., supra, expert witnesses regularly travel to testify at trials. The expert makes it part of his or her business to travel to the site of litigation both within and outside of this State, and the travel distance from Birmingham to the proposed venue in Meridian, Mississippi, although greater than the distance to Perry County, does not appear to be unduly greater for someone for whom travel to the site of litigation is a customary part of their business. We cannot say that the physical presence of those witnesses in Alabama (assuming that they would not make themselves available in Mississippi) outweighs the inconvenience of the investigating officer and the eyewitnesses in this case of traveling to Alabama.

The interests-of-justice prong of the forum non conveniens analysis also weighs in favor of dismissing the action so that it can be refiled in Mississippi. In Ex parte First Family Financial Services, Inc., 718 So.2d 658, 661 (AIa.1998), this Court noted:

“ “Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcement of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.
“ ‘ “Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the ease, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” ’ ”

(Quoting Ex parte Gauntt, 617 So.2d 204, 221 (AIa.1996) (Maddox, J., dissenting), quoting in turn Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).) Though Ex parte First Family Financial applied the doctrine of forum non conveniens under § 6-3-21.1, Ala.Code 1975, the same principles apply here.

“ ‘[I]n analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008).... Further, in examining whether it is the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills Mfg., Inc., 10 So.3d 536, 540 (Ala.2008). The interests of justice weigh in favor of Mississippi as the venue for this case.

Based on the foregoing, we hold that the trial court exceeded its discretion in denying the petitioners’ motion for a dismissal based on the doctrine of fonum non conve-niens. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to enter an order dismissing the case without prejudice. “A dismissal pursuant to § 6-5-430 without providing for the right of a plaintiff to refile would be contrary to the interests of justice, one of the factors to be considered in ordering such a dismissal.” Ex parte Kia Motors, 881 So.2d at 401. As previously noted, the petitioners have consented to jurisdiction in Mississippi and have waived the statute-of-limitations defense, obviating the need for judicial action to protect Weir from assertion of that defense.

PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, SHAW, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., dissents.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately to explain that my vote reflects a hesitation in this particular case to place as much emphasis as the plaintiff urges on (1) the location of the plaintiffs experts and (2) the location of one of two other drivers who allegedly were involved in the accident and who are named as defendants in the complaint.

As to the experts, I first note that we should consider there to be only one expert at issue. (The other individual to whom the plaintiff alludes is an assistant employed by the same firm that employs the single expert.) Moreover, as the main opinion suggests, this particular expert makes it a part of his business to travel to the site of litigation both within and without this State, and the travel distance from Birmingham to the proposed venue in Meridian, Mississippi, while greater than the distance to Perry County, does not appear to be unduly so.

Further still, the plaintiff, a Mississippi resident who suffered injuries in an accident that occurred in Mississippi, made a choice in this case to hire an Alabama-based accident-reconstruction expert. Nothing in the materials before us suggests that the plaintiff could not have been equally well served by hiring an accident-reconstruction expert based in Mississippi. Without more, I am reluctant to place much weight on a connection of this nature voluntarily created with Alabama by an out-of-state plaintiff in regard to an out-of-state accident, at least within the context of the other circumstances presented in this particular case.

There is only one other likely witness who allegedly resides in Alabama, Gordon Booker. Booker is alleged to be one of the other drivers involved in this accident and accordingly is named as one of the defendants, although it appears from the materials before us that he has not yet been served. In any event, the complaint alleges only that Booker is an Alabama resident. Even if we may accept this allegation as true for purposes of the present dispute (the petitioners’ motion does not challenge this allegation with contrary evidence), there is no allegation in the complaint and no evidence before us as to Booker’s place of residence within this State or the proximity of his residence to Perry County as opposed to Meridian, Mississippi.

MOORE, Chief Justice

(dissenting).

I respectfully dissent because I do not believe a writ of mandamus is the proper means by which to force a change of venue. The doctrine of forum non conveniens was not available to Alabama courts until 1987. See Ex parte Ford Motor Credit Co., 772 So.2d 437, 440 (2000) (citing Ex parte Illinois Cent. Gulf R.R., 537 So.2d 899 (1988)). Even during the first decade after the legislature amended § 6-5-430, Ala.Code 1975, to reference the doctrine of forum non conveniens, this Court typically upheld a trial court’s decision not to dismiss an action on the basis of the doctrine of forum non conveniens. See, e.g., Ex parte United Bhd. of Carpenters & Joiners of America, AFL-CIO, 688 So.2d 246 (Ala. 1997); Ex paHe Preston Hood Chevrolet, Inc., 638 So.2d 842 (Ala.1994); Ex parte Employers Ins. of Wausau, 590 So.2d 888 (Ala.1991); Ex paHe Allied-Signal, Inc., 561 So.2d 1062 (Ala.1990); Ex paHe Auto-Owners Ins. Co., 548 So.2d 1029 (Ala.1989); and Ex paHe Illinois Cent. Gulf R.R., supra.

I believe issuing a writ of mandamus in this case would take this Court one step further from the purpose and meaning of mandamus and give the impression that mandamus is an ordinary, rather than an extraordinary, remedy. It is not — or, at least, it ought not to be.

I. Mandamus is an Extraordinary Writ

As the majority opinion points out: “ ‘Mandamus is a drastic and extraordinary writ.’ ” 128 So.3d at 726 (quoting Ex paHe Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala.2000)) (emphasis added). I agree. The Random House Dictionary (2013) defines “drastic” as “extremely severe or extensive.” Collins English Dictionary (10th ed. 2009) defines “drastic” as “extreme or forceful.” These definitions use the words “extremely” or “extreme,” which refer to “a character or kind farthest removed from the ordinary or average,” or, in the alternative, to the “utmost or highest degree, or a very high degree.” The Random House Dictionary (2013) (emphasis added). The term “extraordinary” refers to that which is “beyond what is usual, ordinary, regular, or established.” Id. The term can mean “exceptional in character, amount, extent, [or] degree.” Id. Accordingly, this Court ought to treat an extraordinary writ of mandamus as an extreme or drastic option, not as a routine substitute for regular judicial review and supervision.

II. Standard of Review

The standard of review for mandamus relief is as follows:

“ ‘Mandamus is a drastic and extraordinary writ, to be issued 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 paHe Kia Motors America, Inc., 881 So.2d 396, 399 (Ala.2003)(quoting Ex paHe Brookwood Health Servs., 781 So.2d at 956) (emphasis added). The mandamus standard is not a mere balancing test of various factors. Mandamus is a remedy that becomes an option only when a party has met a threshold consisting of four factors: “The burden is on the petitioner who seeks a writ of mandamus to show that each element required for issuance of the writ has been satisfied.” Ex paHe Patterson, 853 So.2d 260, 263 (Ala.Civ.App.2002). But even then we need not grant it. It is discretionary: nothing in the standard of review requires this Court to issue the writ, even if a party has satisfied all four factors.

The standard of review for mandamus relief is, accordingly, couched in strong words befitting a remedy so drastic and extraordinary: the legal right must be clear, the respondent’s duty to perform the refused act must be imperative, and other adequate remedies must be lacking. To be clear is to be plain or evident; to be imperative is to be compulsory or obligatory; to be lacking is to be nonexistent. See The Random House Dictionary; see also Collins English Dictionary. These are strong words reserved for an extreme judicial remedy.

As the majority opinion points out, a subsidiary standard of review for mandamus relief is whether a trial judge, in acting or refusing to act, has exceeded his or her discretion. 128 So.3d at 727 (quoting Ex parte Kia Motors, 881 So.2d at 899). Whether to dismiss an action based on the doctrine of forum non conveniens is a factual determination that is within the sound discretion of the trial judge, and this Court ought not disturb his or her ruling unless the trial judge has exceeded his or her discretion. Ex parte Kia Motors, 881 So.2d at 399. This Court has held that “ ‘unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.’ ” Ex parte Auto-Oumers Ins. Co., 548 So.2d 1029, 1032 (Ala.1989) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)) (emphasis omitted; emphasis added).

In the context of a challenge to venue, a trial judge exceeds his or her discretion if the judge acts arbitrarily or capriciously. Ex parte Kia Motors, 881 So.2d at 399. Therefore, a party seeking a writ of mandamus to direct a trial judge to enter an order dismissing a case on the basis of the doctrine of forum non conveniens must show not only that it has met all four factors of the mandamus standard, but also that the trial judge acted arbitrarily or capriciously by refusing to dismiss the case. Id. Even if Transportation Leasing Corp. (“TLC”) and Aquilex Hydrochem, LLC (“Aquilex”), have satisfied these four factors, this Court should not issue the writ unless doing so will remedy a rare injustice brought about by the trial judge’s arbitrary or capricious behavior. Id. In this case, TLC and Aquilex have not demonstrated that they have a clear legal right to a writ of mandamus and that the trial court had an imperative duty to dismiss the case.

A. Clear Legal Right

To have a clear legal right to mandamus relief, TLC and Aquilex must positively prove (1) that Ronald Weir’s claims arose outside of Alabama and (2) that a more appropriate forum than the Perry Circuit Court exists in light of the acts giving rise to the claims, the convenience of the parties and witnesses, and the interests of justice. § 6-5-430, Ala.Code 1975. See, e.g., Donald v. Transport Life Ins. Co., 595 So.2d 865, 867 (Ala.1992); Ex parte Allied-Signal, Inc., 561 So.2d 1062, 1064 (Ala.1990) (“All of [the factors] must be ‘positively found’ to justify dismissal....”); and Ex parte Southern Ry., 556 So.2d 1082, 1091 (Ala.1989) (“Only when all factors are positively found to require dismissal should a case be dismissed.”).

The movant for a dismissal “has the burden of proving all of these factors, and each factor must be positively proven in order to justify dismissal.” Dynamic Op tions, Inc. v. Criticare Sys., Inc., 739 So.2d 41, 44 (Ala.Civ.App.1998) (emphasis added). Accordingly, it is not enough for TLC and Aquilex to prove one factor or to show a high likelihood that they have satisfied the factors to justify a dismissal on the basis of the doctrine of forum non conve-niens; they must provide sufficient evidence for a trial judge to positively find that a dismissal is warranted. Ex parte Southern Ry., 556 So.2d at 1091.

Given the facts before it, the trial court determined that TLC and Aquilex had not met their burden of establishing a clear legal right to a dismissal based on the doctrine of forum non conveniens or at least that they had not positively proved that they had met their burden. By issuing a writ of mandamus, this Court holds that TLC and Aquilex did, in fact, meet their burden. In effect, the majority opinion reviews the facts of the case and then comes to a conclusion different from the trial judge’s conclusion, thereby substituting its judgment for his. Such an exercise might be appropriate for de novo review, but the correct standard of review appears to be whether the trial court exceeded its discretion. The trial court’s determinations are entitled to greater deference than they appear to have been given in the majority opinion.

B. Imperative Duty to Perfomi

The trial court did not arbitrarily or capriciously fail to perform an imperative duty. Judge Jones may have been happy to lighten his docket by dismissing this case, but I submit that the reason he did not dismiss it is most likely because this Court has established a high burden of proof for parties seeking a dismissal pursuant to the doctrine of forum non conve-niens. A trial judge is, after all, bound to follow the precedents of this Court, and Judge Jones was bound to positively find that TLC and Aquilex were entitled to a dismissal based upon the factors of a forum non conveniens analysis. Ex parte Southern Ry., 556 So.2d at 1091.

The majority opinion does not take into account several issues that may have influenced Judge Jones’s decision. For example, Weir might still be attempting to serve one of the defendants, who is a resident of Alabama. In his objection to TLC and Aquilex’s motion to dismiss on the ground of forum non conveniens, Weir points out that the “[djefendant Gordon Booker is a resident of Perry County, Alabama.” What difference does it make for defendants from Ohio or Illinois to travel to Mississippi rather than Alabama? If Weir were to serve the defendant who is an Alabama resident, would the inconvenience to the Mississippi witnesses who must travel to Alabama outweigh the inconvenience to the Alabama defendant who must travel to Mississippi? If the Mississippi witnesses would not comply with an Alabama subpoena, they would harm only Weir’s case, and it was, of course, Weir who chose the forum and subjected himself to that possibility.

Moreover, Weir has suggested that Alabama witnesses may have knowledge relevant to his cause of action. In his objection, Weir stated: “[A]t a maximum, there are only three (3) real Mississippi witnesses involved in this case. This would include [Weir] and Officers [Tommie] Coker and [Dean] Hax-per. However, there are an equal number of witnesses in this case from the State of Alabama.” Id. As this Court has stated: “[I]t makes little sense to move a case from Alabama to another forum in order to accommodate out-of-state witnesses when to do so would necessarily inconvenience those witnesses who reside in Alabama.” Ex parte United Bhd. of Carpenters & Joiners of America, AFL-CIO, 688 So.2d at 250. Weir also indicated that he “has retained the services of Cliff Prosser, an accident recon-structionist from Jefferson County, Alabama.” He adds that “Mr. Prosser has and/or will be assisted in his work by Jeff Standrich who is also a resident of Jefferson County, Alabama.” Id. All the foregoing would suggest that the trial judge had valid reasons for denying TLC and Aquilex’s motion to dismiss.

III. Conclusion

“We have too many high-sounding words,” Abigail Adams once wrote in a letter to her husband, John, “and too few actions that correspond with them.” Abigail Adams, Letter to John Adams (October 16, 1774), in Correspondence of John and Abigail Adams 144 (John Patrick Dig-gins ed., 2004). “Mandamus” is a high-sounding word defined as an extraordinary writ, yet the actions of this Court do not seem to conform to that definition. By issuing the writ of mandamus liberally, this Court undermines the meaning and purpose of the writ. TLC and Aquilex have failed to meet the high standard required before this Court is able to issue the writ. They have not satisfied the factors to demonstrate that they are entitled to this Court’s discretionary consideration of their petition, let alone the actual issuance of the writ.

By issuing the writ of mandamus here, this Court is, in essence, ignoring its own high standards for mandamus review and ruling that Judge Jones acted arbitrarily or capriciously by adhering to those standards. On the contrary, Judge Jones was merely doing what § 6-5-430, Ala.Code 1975, and our precedent required him to do. I would deny TLC and Aquilex’s petition for the writ of mandamus; therefore, I dissent.

      . There was a time when trial courts were entitled to so much discretion as to their factual determinations that a higher court would not issue a writ of mandamus even if the trial court provided false reasons for why a writ of mandamus should not issue. As Sir William Blackstone explains: ''[I]f [the trial judge], at the first, returns a sufficient cause, although it should be false in fact, the court of the king's bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no farther on the mandamus.” 3 Sir William Blackstone, Commentaries on the Laws of England *111. In such a situation, the remedy would not have been a writ of mandamus to the trial judge, but "an action against him for false return.” Id. Only if that subsequent action were successful would the trial court be subject to the supervisory power of mandamus. Id. This Court has wandered far afield from the traditional understanding of this extraordinary writ.

      . Judge Thomas ap R. Jones’s term of office expired January 14, 2013; he was succeeded by Judge Collins Pettaway, Jr.


source: Caselaw Access Project

author: BOLIN, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Jeffrey T. ERVIN. (In re Jeffrey T. Ervin v. State of Alabama).
    1120683.
    Supreme Court of Alabama.
    May 10, 2013.
    Daniel L. McCleave of McCleave Den-son Shields, LLC, Mobile, for petitioner.
   BOLIN, Justice.

WRIT DENIED. NO OPINION.

MURDOCK, MAIN, and BRYAN, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

On November 20, 2012, the trial court dismissed Jeffrey T. Ervin’s Rule 32, Ala. R.Crim. P., petition for postconviction relief. Ervin filed a notice of appeal to the Court of Criminal Appeals on January 14, 2013, 55 days after the dismissal of his petition. The time in which to file a notice of appeal from the denial or dismissal of a Rule 32 petition is 42 days. Rule 4(a)(1), Ala. R.App. P. On February 7, 2013, the Court of Criminal Appeals dismissed Ervin’s appeal as untimely. Ervin v. State (No. CR-12-0693, Feb. 7, 2013),-So.3d - (Ala.Crim.App.2013) (table). See Committee Comments to Rule 3, Ala. R.App. P. (“Timely filing of the notice of appeal is a jurisdictional act.”).

Ervin argues in his petition for a writ of certiorari to this Court that the failure to timely file the notice of appeal was the result of ineffective assistance of counsel and that he is thus entitled to an out-of-time appeal. Rule 32.1(f), Ala. R.Crim. App., states as a ground for postconviction relief that “[t]he petitioner failed to appeal within the prescribed time ... from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.” (Emphasis added.) A petitioner’s claim for relief from a late-filed notice of appeal must thus be based on a previous petition, not the current one.

Because counsel’s alleged failure to file a timely notice of appeal in a Rule 32 proceeding cannot be challenged in the same proceeding in which the error occurred, Ervin must file a separate and subsequent Rule 32 petition in the trial court to raise this issue. “[T]he proper method of seeking an out-of-time appeal from the denial of a Rule 32 petition is by filing another Rule 32 petition.” Ex parte V.S., 918 So.2d 908, 912 n. 3 (Ala.2005). See also Loggins v. State, 910 So.2d 146, 153 (Ala.Crim.App.2005) (Shaw, J., concurring specially) (“[T]he circuit court, not this Court, should conduct the initial review of a motion seeking an out-of-time appeal.”).

Because Ervin’s Rule 32.1(f) claim is not properly before this Court, I concur in denying the petition for a writ of certiora-ri.


author: PITTMAN, Judge.

text:
    Scott HOLSTON v. Lecresha HOLSTON.
    2111123.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      John A. Henig, Jr., and Ashley N. Pen-hale of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   PITTMAN, Judge.

Scott Holston (“the husband”) and Le-cresha Holston (“the wife”) were married in December 2001. The marriage was the second one for both parties; the wife was 28 years old and the husband was 37 years old when they married. One week before the marriage, the parties executed an antenuptial agreement that, by its terms, is to be governed by the laws of Mississippi. The parties attached to the agreement handwritten statements outlining their major assets and liabilities. Those statements indicate that the wife’s net worth was $2,000 and the husband’s net worth was $1.7 million.

The husband is a pharmacist. When the parties married, the husband had an ownership interest in two closely held corporations: S <& S Pharmacy, Inc., doing business as The Medicine Shoppe, and Holmac, Inc., doing business as Rx Express Pharmacy. He also owned a sole proprietorship, The Uniform Shoppe, and several parcels of real property in Alabama and Mississippi, including two commercial lots in Pascagoula, Mississippi.

After the marriage, the parties (and the wife’s three daughters from her previous marriage) lived in the husband’s residence in Grand Bay. Two sons were born of the parties’ marriage. After the birth of the parties’ second son in 2004, the husband sold the Grand Bay residence and the parties purchased a house in the Muir Woods subdivision of Mobile. The wife was employed outside the home only sporadically during the parties’ seven-year marriage, and, when she was employed, she worked at The Uniform Shoppe. The husband was paid twice a month; he deposited his paycheck of approximately $2,300 from The Medicine Shoppe into the parties’ joint checking account. The wife used the funds in that account to pay the family’s routine monthly expenses. The husband also had an individual checking account, into which he deposited his earnings and bonuses from other business entities. The husband used the funds in his individual account to purchase real and personal property, to invest in new businesses and stocks, and to pay family expenses.

During the marriage, the husband used $60,000 from his individual account to purchase a lot adjacent to his two existing commercial lots in Pascagoula. In September 2007, he sold the three-lot parcel for $700,000. In order to avoid paying capital-gains tax on the sale of the lots and to receive favorable tax treatment pursuant to 26 U.S.C. § 1031, the husband formed a separate business entity, Holston Timbers, LLC, that purchased four parcels of property in Mississippi. Holston Timbers subsequently purchased two additional parcels of land in Mississippi. The total purchase price for the six parcels was $846,458.72.

The husband also acquired an interest in two additional pharmacies during the marriage — Rx Express of Navarre, Inc., and Rx Express of Bayou La Batre, Inc. — and purchased stock in two Pascagoula banks. He bought 783 shares of Merchants & Marine Bank stock for $31,320, using funds from his individual checking account. The stock certificates were issued in the husband’s name, payable to the wife upon his death. The husband bought 25,000 shares of Charter Bank stock for $250,000, with funds borrowed from his Medicine Shoppe account. The husband explained how he purchased the Charter Bank stock as follows: “When I wrote the check out of Medicine Shop [sic] to purchase the stock, that’s the way I do loans to my [individual] account. And then, as I draw bonuses [from The Medicine Shoppe], I have to pay taxes on the bonus money I get. And whatever the net is, I apply it back to the loan, back to [The Medicine Shoppe].” The Charter Bank stock certificates were issued to the parties as joint tenants with right of survivorship. The husband also created an E-Trade account in the parties’ joint names.

The parties filed joint federal and state income-tax returns during the marriage. For the four years preceding the trial of this case, those returns showed adjusted gross incomes of $593,211 for 2006; $813,272 for 2007; $1,093,250 for 2008; and $940,149 for 2009.

In January 2009, the wife filed a complaint for a divorce, seeking custody of the parties’ sons, child support, periodic alimony, alimony in gross, an equitable division of the property acquired during the marriage, and an attorney fee. The husband answered the complaint, asserting that the wife was precluded by the antenuptial agreement from receiving periodic alimony, alimony in gross, Or a division of the property that he had acquired during the marriage. The husband also counterclaimed, seeking a divorce and custody of the parties’ sons.

At trial in July 2010, the parties stipulated that the antenuptial agreement was valid, and the trial court stated that it would enforce the agreement. The agreement provides, in pertinent part:

“4.
“The parties agree that except as may be otherwise expressly set forth in this agreement, all property, real and personal, owned by either of them at the time of their contemplated marriage, from whatever source, shall remain the respective property of the person in whose name it stands, and neither shall acquire any interest in or right to any of the property of the other.
“A.
“If the parties shall be married, the right with respect to the property owned by either of them at the time of the contemplated marriage or acquired during their marriage shall be subject to the terms of this agreement....
“B.
“[A]ll properties of any name or nature, real, personal, or mixed, wherever they may be found, belonging to [the husband] before marriage, or those which may be acquired or accumulated after such marriage, by purchase, trade, gift, or otherwise, shall be and remain forever his personal estate, and this shall include all interests, rents, dividends, profits, and other appreciated value which may in time accrue, or result in any manner from increase in value, or be collected for the use of the properties in any way.
“C.
[Section C is identical in all respects to section B, but it is applicable to properties belonging to the wife.]
“D.
“It is further agreed that [the husband] and [the wife] do mutually waive and release to each other, and to their heirs at law, devisees, legatees, successors and assigns, all claims of dower, courtesy, widow’s allowances, forced shares, all rights of support and all claims as heirs at law of each other in and to their respective properties mentioned above. Each party shall hold all real property and personal property which he or she now owns or may hereafter acquire free from any claim of dower, inchoate or otherwise, and this contract shall evidence the right of [the husband] to convey any of his real estate free from any such claims of dower. At the request of [the husband], [the wife] shall execute, acknowledge, and deliver such other instruments as may be reasonably required to accomplish the transfer by [the husband] of any of his real property free from any such claim of dower or to divest any claim of dower in such property. It is also expressly understood and agree[d] that in the event of the death of [the husband] or in the event of separation or dissolution of the marriage, [the wife] shall in consideration therefor, receive certain payments as herein described.
“E.
“It is further agreed that nothing herein shall be construed to be a bar to either party giving any property of which he or she may be possessed to the other party by will or otherwise. It is understood that each party to this contract shall control his or her own personal estate, as described herein, and do with the properties whatsoever he or she wishes and wills, by his or her orders or directions, or by a testament, the same as either could or would do if no marriage relations existed between them.
“F.
“If the parties separate or the marriage is dissolved, each party waives, releases, and relinquishes the other from any duty or obligation to support the other in any fashion or manner whatsoever, including temporary and permanent separate maintenance, temporary alimony, permanent lump-sum, periodic, or rehabilitative alimony, or any other form of alimony or support, which duty or obligation may otherwise arise but for this agreement, and no claim or demand for such support shall be made at any time or under any circumstances. The parties specifically express and acknowledge their understanding that each party’s own separate property and the provisions relative to equitable distribution, as hereinafter set forth, are sufficiently adequate to enable each party to provide for his or her own support in the event of a separation or dissolution of marriage. Nothing contained herein shall be construed to suggest that either party expects, in the event of the parties’] separation or dissolution of marriage, to continue or anticipates a standard of living or lifestyle commensurate with that which was enjoyed prior to or during the parties’ marriage.
“H.
“In the event of a dissolution of marriage, regardless of which party is at fault or initiates the dissolution action, [the wife] shall receive the sum of $10,000 for each year or portion of a year of the marriage. Payment of the lump sum shall be in cash payable as follows: 1) $5,000 payable within 60 days of the date that either party files for dissolution; and 2) the balance within 30 days of the entry of a final judgment of divorce. It is the intent of the parties that the payments set forth herein shall fully satisfy all alimonial obligations of [the husband], said obligations to include temporary and permanent separate maintenance, temporary alimony, permanent lump-sum, periodic or rehabilitative alimony, or any other form of alimony or support.”

The parties presented evidence indicating that the following assets had been acquired during the marriage:

On August 19, 2010, the trial court purported to enter a judgment that, among other things, (a) awarded each party the property that he or she had owned before the marriage or had inherited, (b) awarded the husband the four business entities that he had acquired or formed during the marriage; (c) awarded the wife $95,500 for her interest in the marital residence and $520,000 as a “property settlement”; (d) awarded each party half the stock in Merchants & Marine Bank, Charter Bank, and the E-Trade account; awarded the wife three automobiles; and awarded the husband three automobiles, two trucks, two tractors, a bulldozer, and two all-terrain vehicles. The trial court ordered the parties to make two lists of the furniture and household furnishings that had been acquired during the marriage, instructing the husband to choose which list represented the items he wanted the court to award him, leaving the items identified on the second list for the wife. The husband appealed, and this court dismissed the appeal on March 6, 2012, on the basis that the appeal had been taken from a nonfinal order, citing Sims v. Sims, 38 So.3d 71, 72 (Ala.Civ.App.2009). Holston v. Holston (No. 2100359, March 6, 2012), - So.3d -(Ala.Civ.App.2012) (table).

On May 3, 2012, the trial court entered a final judgment, awarding the furniture and household furnishings and leaving intact all other provisions of its August 19, 2010, order. Following the denial of his post-judgment motion on July 6, 2012, the husband filed a timely notice of appeal on August 17, 2012.

It is undisputed that, following the entry of the trial court’s August 19, 2010, order, the husband paid the wife $95,500, representing half the equity in the marital residence; $95,000, representing the payments owed to the wife pursuant to section H of the antenuptial agreement; and $35,000, representing half the E-Trade account. The husband raises a single issue on appeal: whether the trial court violated the antenuptial agreement and erred in awarding the wife a property settlement of $520,000.

Standard of Review

Because the parties’ antenuptial agreement states that it is governed by the law of Mississippi, our review of the trial court’s judgment is governed by the substantive law of Mississippi, not Alabama. “However, standards of appellate review are procedural in nature and the law of the forum controls.” Bates v. Bates, 103 So.3d 836, 841 (Ala.Civ.App.2012).

Under Mississippi law, “ ‘[a]n antenuptial contract is as enforceable as any other contract. Accordingly, the same rules of interpretation apply.’ ” Doster v. Doster, 853 So.2d 147, 150 (Miss.Ct.App.2003) (quoting McCord v. Spradling, 830 So.2d 1188, 1204 (Miss.2002) (citations omitted)).

“The first rule of contract interpretation is to give effect to the intent of the parties. Sumter Lumber Co. v. Skipper, 183 Miss. 595, 608, 184 So. 296, 298 (1938). More correctly stated, our concern is not nearly so much what the parties may have intended as it is with what they said, for the words employed are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy. Id.”

Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 327 (Miss.1988).

The parties stipulated that the antenuptial agreement was valid and enforceable. The sole issue on appeal, therefore, is whether the trial court correctly interpreted the agreement. “ ‘The interpretation of a provision in an antenuptial agreement, like the interpretation of any provision in any contract, is a question of law for the trial court.’ ” Hood v. Hood, 72 So.3d 666, 676 (Ala.Civ.App.2011) (quoting Peden v. Peden, 972 So.2d 106, 110 (Ala.Civ.App.2007), citing in turn Laney v. Laney, 833 So.2d 644, 646 (Ala.Civ.App.2002)).

“‘To determine whether the ante-nuptial agreement is ambiguous, the trial court was required to review the agreement to determine if “ ‘the intent of the parties c[ould] be fairly and reasonably gleaned from the four corners of the document.’ ” Stacey v. Saunders, 437 So.2d 1230, 1234 (Ala.1983) (quoting Schmidt v. Ladner Constr. Co., 370 So.2d 970, 972 (Ala.1979))....

“Peden v. Peden, 972 So.2d 106, 110 (Ala.Civ.App.2007).

“ ‘An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Aa.Civ.App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id.’
“R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000).
“Furthermore, Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities.’ Judge v. Judge, 14 So.3d 162, 165 (Ala.Civ.App.2009).”

Hood v. Hood, 72 So.3d at 676-77. “If a contract can be interpreted without going beyond the four corners of the document, the trial court’s resolution of the question of law is accorded no presumption of correctness, and this Court’s review is de novo.” Exxon Mobil Corp. v. Alabama Dep’t of Conservation & Natural Res., 986 So.2d 1093, 1101 (Ala.2007) (citing Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).

Discussion

The husband contends that the trial court’s $520,000 property-settlement award to the wife is inconsistent with the express terms of the antenuptial agreement. He maintains that, because the wife was awarded half of all jointly held assets acquired during the marriage — i.e., half of Subtotal B in the chart, supra, or $217,-160 — and because there are no other assets that were acquired during the marriage that do not belong solely to the wife or solely to him from which the property settlement could have been derived, the property settlement must have been derived from his separate estate.

The wife maintains that the ante-nuptial agreement fails to address the division of property acquired with “jointly earned funds” during the marriage. She argues that, because the parties filed joint federal and state income-tax returns during the marriage, all the income they reported must be deemed “jointly earned.” Although the appellate courts of Mississippi and Alabama do not appear to have addressed that issue, the Court of Appeals of Tennessee recently surveyed the applicable law and determined that “the filing of a joint tax return does not, ipso facto, result in transmutation of separate property into marital.” Estate of Hunt v. Hunt, 389 S.W.3d 755, 762 (Tenn.Ct.App.2012). The Tennessee court explained:

“[T]he Internal Revenue Code, 26 U.S.C.A. § 6013 (2003) ... provides, in relevant part, as follows:
“ ‘(a) Joint returns. — A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below: ... ’
“In J.R. Kemper, Annotation, Right of Surviving Spouse to Tax Refund Resulting from Joint Income Tax Return, 67 A.L.R.3d 1038 (1975), Mr. Kemper discusses the purpose of 26 U.S.C.A. § 6013 as follows:
“ ‘As has been noted by the courts in several cases, § 6013(a) of the Internal Revenue Code of 1954, which authorizes a husband and wife to file a joint federal income tax return even though one of them had no income of his or her own, was enacted in order to put taxpayers throughout the country on an equal basis by permitting couples in common-law states to split income between themselves and thus to diminish their tax liability in the same manner as couples were able to do in community property states wherein each spouse was deemed entitled to one — half of all income irrespective of the amount earned by or accruing to each. [McClure v. United States, 228 F.2d 322 (4th Cir.1955); Bertucci v. United States, 146 F.Supp. 949 (1957) ].
“ ‘On the other hand, it has also been generally recognized that Congress did not intend § 6013(a) to affect or change the ownership of property rights between taxpayers, and that as a consequence the filing of a joint federal income tax return does not automatically convert the interest of one spouse in any refund due thereunder into a joint interest therein with his or her marital partner. [In re Wetteroff, 453 F.2d 544 (8th Cir.1972), perm. app. denied 409 U.S. 934, 93 S.Ct. 242, 34 L.Ed.2d 188 (1972), reh. den. 409 U.S. 1050, 93 S.Ct. 532, 34 L.Ed.2d 503 (1972) (citing In re Illingworth, 51 Am. Fed. Tax R. 1512, 56-2 USTC ¶ 10004 (D.C.Or.1956)) (“The Government in making a tax refund makes no attempt to determine what part of such refund should belong to the recipients to decide how such refund shall be divided or used.”) ].’
“The majority of caselaw from our sister states holds that the filing of a joint tax return does not, ipso facto, result in transmutation of separate property into marital.”

Estate of Hunt v. Hunt, 389 S.W.3d at 761-62. We adopt the reasoning of the Tennessee Court of Appeals in Hunt and conclude that the parties’ filing of joint income-tax returns during the marriage did not convert the husband’s separate property into marital property.

The wife next contends that section 4 and section B of the antenuptial agreement are ambiguous and that the trial court implicitly determined that those sections pertain only to property owned at the time of the marriage and not to later-acquired property. The wife did not argue in the trial court that any portion of the agreement was ambiguous, and the plain language of section 4 and section B, as well as section A, demonstrates no ambiguity. Section 4 states:

“The parties agree that except as may be otherwise expressly set forth in this agreement, all property, real and personal, owned by either of them at the time of their contemplated marriage, from whatever source, shall remain the respective property of the person in whose name it stands, and neither shall acquire any interest in or right to any of the property of the other.”

(Emphasis added.) More specifically, section A states:

“If the parties shall be married, the right with respect to the property owned by either of them at the time of the contemplated marriage or acquired during their marriage shall be subject to the terms of this agreement....”

(Emphasis added.) Likewise, section B states:

“[A]ll properties of any name or nature, real, personal, or mixed, wherever they may be found, belonging to [the husband] before marriage, or those which may be acquired or accumulated after such marriage, by purchase, trade, gift, or otherwise, shall be and remain forever his personal estate, and this shall include all interests, rents, dividends, profits, and other appreciated value which may in time accrue, or result in any manner from increase in value, or be collected for the use of the properties in any way.”

The intent of the parties can reasonably be gleaned from a reading of sections 4, A, and B of the agreement. Section 4 and section B, when read together with section A, are not susceptible to more than one meaning but, rather, state in clear and unambiguous language that property “owned by” or “belonging to” either party before the marriage or acquired or accumulated by either party during the marriage remains the separate property of that party.

The wife next argues, citing Drumright v. Drumright, 812 So.2d 1021 (Miss.Ct.App.2001), that property acquired during the marriage and used for the common benefit of the parties became “marital property” subject to equitable division. It is true that in Drumright the Court of Appeals of Mississippi stated: “[M]arital property can be defined as that which was acquired during the course of the marriage. Also, property brought into the marriage by one partner and used by the family becomes a marital asset, losing its identity as a separate estate.” 812 So.2d at 1025 (citations omitted).

Under Mississippi law, “[t]he mere fact that an asset is acquired during the marriage does not immutably characterize it as marital.... [I]f the acquisition is made through the use of non-marital assets, that acquisition remains separate property.” Hankins v. Hankins 866 So.2d 508, 512 (Miss.Ct.App.2004). Moreover, the law stated in Drumright is inapplicable here because Drumright did not involve an antenuptial agreement that expressed the parties’ contrary intent. “[N]on-marital assets may be converted into marital assets if they are commingled with marital assets or used for familial purposes, absent an agreement to the contrary.” A & L, Inc. v. Grantham, 747 So.2d 832, 838 (Miss.1999) (emphasis added).

In Mabus v. Mabus, 890 So.2d 806 (Miss.2003), the Supreme Court of Mississippi considered whether the wife was entitled to a share of the property separately acquired by the husband during the marriage. The antenuptial agreement in Maims provided:

“ ‘This agreement is intended to cover and apply to all property now owned by each party and to all property which each may acquire in his or her sole and separate right, and to any property acquired by an exchange, lease, mortgage or otherwise, to any property vesting by purchase, reinvestment, substitution, increase, descent, gift, bequest, or devise, and to proceeds derived from any sale. The agreement does not apply to property as to which title is taken after their marriage in the names of both parties as joint tenants or tenants by the entirety.’”

890 So.2d at 823 (emphasis added). The Supreme Court of Mississippi, noting the trial court’s finding that the parties in Mabus had “ ‘meticulously maintained separate accounts for their premarital separate property and for the gifts and inheritances that they each received during the marriage,’ ” upheld the trial court’s determination that the wife was not entitled to a share of property separately acquired by the husband during the marriage. Id. Accord Mallen v. Mallen, 280 Ga. 43, 43, 622 S.E.2d 812, 814 (2005) (affirming a trial court’s determination that the husband “was entitled to all the assets with which he entered the marriage and all assets accumulated during the marriage” pursuant to a prenuptial agreement providing that, “in the event of a divorce, [wjife would receive a basic alimony amount to be adjusted for the number of years of marriage, and assets would belong to whomever owned the property originally or received it during the marriage”); Bennett v. Bennett, 103 A.D.3d 825, 825, 960 N.Y.S.2d 179, 180 (2013) (upholding a prenuptial agreement defining “marital property” as “ ‘(a) any property that is jointly owned by the parties, and (b) all household furniture and furnishings owned by either party, whether heretofore or hereafter acquired and regardless of the form in which title is held,’ ” and defining all other property as “ ‘separate property,’ including real property purchased by either party during the marriage using their own separate property, as well as the appreciation of such property during the marriage”). See also Long v. Long, 928 So.2d 1001, 1002 (Miss.Ct.App.2006) (reversing a trial court’s order that awarded wife a portion of the increase in the value of husband’s business and home and holding that trial court had erroneously failed to enforce antenuptial agreement whereby “ ‘[ejach of the parties expressly waive[d] any and all rights or interest which he/she may hereafter be entitled, as wife or husband, in and to any property, real or personal, which the parties now own separately’ ”).

In the present case, the properties from which the valuations in Subtotal A of the chart, supra, are derived — Rx Express of Navarre, Inc.; Rx Express of Bayou La Batre, Inc.; Holmac Properties, Inc.; Holston Timber, LLC; and the rental property in Pascagoula — were acquired by the husband from funds in his individual or business accounts and kept separate from the funds in the joint account to which the wife had access during the marriage. The parties’ antenuptial agreement provides no method by which those properties separately acquired by the husband during the marriage could become marital property.

Finally, the wife argues that, although she agreed to waive her right to any form of alimony, pursuant to sections F and H of the antenuptial agreement, she did not relinquish her right to an equitable division of the property acquired during the marriage, and, she insists, the ante-nuptial agreement did not prohibit the trial court from awarding her a “property settlement.” In consideration of the payments set out in section H — $10,000 for each year or portion of a year of the marriage — the wife agreed, in section F, to release the husband from

“any duty or obligation to support [her] in any fashion or manner whatsoever, including temporary and permanent separate maintenance, temporary alimony, permanent lump-sum, periodic, or rehabilitative alimony, or any other form of alimony or support, which duty or obligation may otherwise arise but for this agreement.”

(Emphasis added.) If our previous discussion has not already made it clear that the wife was awarded half of all jointly held, or “marital,” property and that the parties’ antenuptial agreement bars any division of the husband’s separate property, an analysis of Mississippi law relating to “lump-sum alimony” removes any doubt that section F also specifically precludes the $520,000 “property settlement” to the wife.

“Mississippi recognizes four different types of alimony: 1) periodic, 2) lump sum, 3) rehabilitative, and 4) reimbursement.” Smith v. Little, 834 So.2d 54, 57 (Miss.Ct.App.2002). Mississippi principles of law pertaining to alimony of the first, third, and fourth types identified in Smith are comparable to, if not precisely congruent with, those of Alabama law pertaining to periodic alimony. See Guy v. Guy, 736 So.2d 1042, 1046 (Miss.1999); Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995); and Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981).

The second type of alimony — lump sum — merits additional discussion because, although it is functionally identical to alimony in gross as known to Alabama practitioners, and Mississippi cases use the terms “lump sum alimony” and “alimony in gross” interchangeably, see, e.g., McDonald v. McDonald, 683 So.2d 929, 933 (Miss.1996); Hubbard v. Hubbard, 656 So.2d at 130; Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990); Holleman v. Holleman, 527 So.2d 90, 92 (Miss.1988), abrogated on other grounds, Smith v. Smith, 607 So.2d 122 (Miss.1992); Wray v. Wray, 394 So.2d at 1345 (quoting 24 Am.Jur.2d Divorce and Separation § 614 at 735-36 (1966)); and Miller v. Miller, 874 So.2d 469, 474 (Miss.Ct.App.2004), lump-sum alimony has a special history in Mississippi.

Until 1994, when Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), was decided, Mississippi “adhered to a system of returning property to the spouse in whom title was held (separate property method).” Ferguson v. Ferguson, 639 So.2d 921, 925 (Miss.1994). Before 1994, “Mississippi [was] the only state in the Union that continue[d] to adhere to the title theory in property distribution in a divorce case. 22 Fam. L.Q. 367, 393-394 (1989). See also Crafts v. Morgan, 776 P.2d 1049, 1053 n. 4 (Alaska 1989).” Draper v. Draper, 627 So.2d 302, 305 n. 2 (Miss.1993).

In Hemsley, the Supreme Court of Mississippi abandoned the “separate property” method and adopted the method of equitable distribution, stating that “[a] spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property.” Hemsley, 639 So.2d at 913.

In Ferguson, supra, the Supreme Court of Mississippi observed that the “separate property system [had] at times resulted in unjust distributions, especially involving cases of a traditional family where most property was titled in the husband, leaving a traditional housewife and mother with nothing but a claim for alimony, which often proved unenforceable.” Ferguson, 639 So.2d at 926. But, as the court explained,

“to some extent, ease law ha[d] helped lessen the unfairness to a traditional housewife in the division of marital property. ...
“... [TJhis Court has allowed lump sum alimony as an adjustment to property division to prevent unfair division. The lump sum award has been described as a method of dividing property under the guise of alimony.”

Id. (emphasis added; citations omitted).

A pre-Hemsley decision explained the rationale for lump-sum alimony as a way to ameliorate the harshness of the separate-property rule.

“While lump sum alimony is in a sense an award to a wife of a portion of her husband’s estate, this Court has consistently made the distinction between divesting a husband of his property and vesting it in the wife, and lump sum alimony. We have always held that in the absence of a resulting or constructive trust the wife’s services as a housewife or a farm wife without more did not authorize a court in a divorce action to give her an equitable interest in his property. The authority of courts in a divorce to transfer property of either spouse to the other is purely statutory, and in the absence of statutory authority a court has no power to deal with vested property rights....
“On the other hand, we have long since recognized the discretionary authority of the chancery court to award lump sum alimony.
“ ‘ “... It [lump sum] is a settlement between the husband and the wife as to the interest of the latter in his property, and as to the extent of the husband’s duty to contribute to her maintenance and support.” [Guess v. Smith, 100 Miss. 457, 56 So. 166, 167 (1911).]
“ ‘The solution of the question of whether or not an allowance of a gross sum should be made must be determined by the facts of the particular case, having due regard to the best interest of the parties and the husband’s financial ability to respond to an award in gross. Where the husband’s estate is sufficient to enable him to respond to an award in gross, it will often be conducive to the welfare and happiness of both parties to end the relation of debtor and creditor between them by making such an award, and thereby relieve the wife of further dependence upon the continued solvency of the husband and his financial ability to pay a periodical stipend and his continued response to such forced contributions without future legal steps to enforce them.’
“Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-20 (1935).”

Retzer v. Retzer, 578 So.2d 580, 590-91 (Miss.1990) (emphasis added).

As the foregoing Mississippi authorities demonstrate, the wife, by relinquishing her right to receive “lump-sum alimony” in section F of the antenuptial agreement, did, in fact, relinquish the right to a division of the property acquired during the marriage. The Alabama trial court had no authority to disregard the antenup-tial agreement and to ameliorate, via the mechanism of a “property settlement,” any perceived harshness resulting from the wife’s waiver of “alimony in any form” because, under Mississippi law, lump-sum alimony is the functional equivalent of a property settlement. The trial court erred as a matter of law in awarding the wife any “property settlement,” much less a property settlement of $520,000, which amounts to 37.5 percent of the husband’s separate property acquired during the marriage. See Richardson v. Richardson, 912 So.2d 1079, 1082 (Miss.Ct.App.2005) (holding that the trial court “committed manifest error by substituting its judgment for that of a valid and enforceable contractual agreement between the parties” when it awarded wife nearly half the value of specific assets acquired during the marriage in disregard of antenuptial agreement calling for husband to take 2/3, and wife to take 1/3, of property acquired during the marriage).

Conclusion

The husband has already paid the wife $225,500: $95,500, representing half the equity in the marital residence; plus $95,000, representing the payments owed to the wife pursuant to section H of the antenuptial agreement; plus $35,000, representing half the value of the E-Trade account. Because the husband does not contest on appeal the trial court’s award to the wife of half the bank stocks, the wife is due to receive, instead of $520,000, only $140,660 more: $15,660, representing half the value of the Merchants & Marine Bank stock; plus $125,000, representing half the value of the Charter Bank stock. The judgment of the Mobile Circuit Court is reversed, and the cause is remanded with instructions to enter a judgment that conforms to the principles outlined herein.

REVERSED AND REMANDED.

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

      . 26 U.S.C. § 1031(a)(1) provides that “[n]o gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment.”


text:
    CAM INVESTMENTS, LLC v. Charles TOTTY, Jr. Charles Totty, Jr. v. CAM Investments, LLC.
    2110977.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      Jacob A. Dubin, Montgomery, for appellant/cross-appellee CAM Investments, LLC.
    Dale Segrest of The Segrest Law Firm, Tallassee, for appellee/cross-appellant Charles Totty, Jr.
   PITTMAN, Judge.

CAM Investments, LLC, appeals from a summary judgment in favor of Charles Totty, Jr., in its breach-of-contract action against Totty. Totty cross-appeals from the denial of his attorney-fee claim pursuant to the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala.Code 1975. We affirm the summary judgment in favor of Totty; we also affirm the circuit court’s order denying Totty’s attorney-fee claim.

Factual and Procedural Background

Following hail damage to his roof, Totty received from his homeowner’s insurer a check in the amount of $8,812.29 for replacement of the roof. On April 12, 2010, Totty discussed the roof damage with Chuck Isbell, then an employee of American Shingle & Siding, Inc. (“ASSI”), and contracted with ASSI to replace the roof. Totty endorsed the insurance check to ASSI.

In June 2010, Amber McMullen left her employment with ASSI and formed a new roofing company, CAM Investments, LLC, doing business as Aboveboard Roofing (“Aboveboard”). McMullen hired other former ASSI employees, including Isbell, to work for Aboveboard. Isbell, who was aware that ASSI had not undertaken any work on Totty’s roof, contacted Totty, explained that he had left his employment with ASSI, and stated that he “would see to it” that Totty’s roof was replaced by Aboveboard. Totty subsequently notified ASSI that he wished to cancel his roof-replacement contract with ASSI and receive a refund of the insurance proceeds that he had delivered to ASSI. Isbell and Totty then orally agreed that Aboveboard would replace the roof and Isbell would turn over to Aboveboard the refund he received from ASSI and pay Aboveboard an additional $789 — the difference between the cost of the roof replacement and the amount of the ASSI refund.

ASSI sent Totty a letter acknowledging the cancellation of the contract and stating that “a refund in the amount of $8,812.29 will be made out to you and your mortgage company.” Totty informed Isbell that ASSI had agreed to make the refund. Is-bell, in turn, informed McMullen that Totty would pay “as soon as [Totty] get[s] [his] refund” and stated that Isbell hoped the refund would arrive within two weeks. On July 20, 2010, Isbell prepared a work order/invoice stating that Totty’s payment was “due after refund from ASSI.”

The parties agree that ASSI became insolvent, sought bankruptcy protection, and never issued a refund to Totty and that Totty did not make any payments to Aboveboard other than $789. The parties disagree about whether the signature purporting to be that of Totty on the work order/invoice is genuine.

In September 2011, Aboveboard sued Totty in the Elmore District Court, alleging that it had contracted with Totty to install a new roof on Totty’s residence, that it had satisfactorily completed the work, but that Totty had failed to pay the contract price. The district court entered a judgment in favor of Totty; Aboveboard appealed to the Elmore Circuit Court for a trial de novo.

Totty moved for a summary judgment. In support of that motion, Totty submitted a brief, his own affidavit, the affidavit of Isbell, and a canceled check dated September 8, 2010, and made payable to Aboveboard in the amount of $789. Although Totty claimed that his purported signature on the work order/invoice was a forgery, he acknowledged that the work order/invoice reflected the actual terms of his oral agreement with Isbell on behalf of Aboveboard. Totty’s affidavit states, in pertinent part:

“The work order prepared by Chuck Isbell clearly indicated that the expected payment to Aboveboard Roofing would be ‘due after refund from [ASSI].’
“I had no discussions with anyone representing Aboveboard Roofing, other than Chuck Isbell. My oral agreement with Chuck Isbell consisted only of an agreement that I would turn over any refund check from American Shingle and pay the difference in costs in the amount of $789.00, which I did.... The oral agreement between me and Chuck Isbell as the representative of Aboveboard Roofing was the total agreement. Aboveboard Roofing assumed the risk that the refund would not be forthcoming.
“... [T]he work order reflects the fact that [Aboveboard] relied on the refund check from [ASSI] in putting the roof on our home. I agreed to sign over the refund check from [ASSI] to the new organization composed of former employees of [ASSI], but did not agree to pay anything else, except the $789 overage which I paid on September 8, 2010.”

Isbell’s affidavit states:

“My name is Chuck Isbell. I am a former employee of [ASSI], a now-defunct national corporation engaging in the business of roof repair. During my employment with [ASSI], I met Charles Totty, Jr., and entered into a contract with him on behalf of [ASSI] for the repair of the roof on his home following hail damage. A check in the amount of $8,812.29 was issued by Mr. Totty’s insurance company and delivered to [ASSI] in payment for the roof. However, [ASSI] never did the roofing work. Mr. Totty canceled his contract with [ASSI] and requested a refund of the amount of the check that had been issued by his insurance company. [ASSI] filed for bankruptcy.
“[ASSI] failed to install many roofs that it agreed to replace. I left the employment of [ASSI] and went to work for CAM Investments which did business as Aboveboard Roofing. CAM Investments was organized by Amber McMullen after [ASSI] began to default on contracts. A number of former employees of [ASSI] went to work for Aboveboard Roofing. It actually replaced a number of roofs that [ASSI] had agreed to replace, after [ASSI] defaulted.
“When I learned that Mr. Totty’s roof had not been replaced by [ASSI], I got in touch with him. I told him that Aboveboard Roofing would replace his roof. I saw a copy of a letter from [ASSI] agreeing to cancel the contract with Mr. Totty and refund his insurance money. I prepared a work order for Aboveboard Roofing to replace Mr. Totty’s roof. Mr. Totty did not sign that work order. (See Exhibit A attached hereto). I was the only person from Aboveboard Roofing who dealt with Mr. Totty in person. I sent an email to Amber McMullen telling her about the refund from [ASSI] (See Exhibit B attached hereto). Mr. Totty’s only obligation was to turn over the refund check from [ASSI] and to pay a small amount of money.
“Mr. Totty fulfilled all his obligations to Aboveboard Roofing. Aboveboard Roofing assumed the risk that [ASSI] would not make the agreed refund.”

Aboveboard filed a response in opposition to Totty’s motion, arguing that assumption of the risk is not a defense to a contract claim and attaching the affidavit of Amber McMullen, which states, in pertinent part:

“In early 2010, Chuck Isbell was employed by [Aboveboard] as an independent contractor to sell roofs. On or about July 20, 2010, Mr. Isbell contracted with Charles Totty to replace a roof on Mr. Totty’s home....
“Aboveboard Roofing proceeded with replacing the roof on Mr. Totty’s home. Mr. Totty lodged no complaint and never gave notice to Aboveboard Roofing that he failed to procure the refund from [ASSI]. Mr. Totty failed to pursue a refund from [ASSI] beyond receiving the refund letter and urged Aboveboard Roofing to complete the project under the promise of payment. To date, Mr. Totty has received a new roof and has only paid $789.00 to Aboveboard Roofing. Mr. Totty further made statements to Mr. Isbell that the refund was forthcoming and that it would be forwarded when received.”

On May 16, 2012, the circuit court entered a summary judgment in favor of Totty that did not adjudicate Totty’s ALAA claim; on June 13, 2012, the circuit court entered an order expressly denying Totty’s ALAA claim, thereby timely amending the judgment of that court. See Casey v. McConnell, 975 So.2d 384, 388-89 (Ala.Civ.App.2007). Aboveboard filed a timely notice of appeal, and Totty filed a timely cross-appeal.

The Appeal Standard of Review

We review a summary judgment de novo, applying the same standard of review as the trial court applied. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

Discussion

Aboveboard argues that the circuit court erred in entering a summary judgment in favor of Totty because, it says, there were genuine issues of material fact concerning whether Totty (a) had signed the work order/invoice and (b) had a duty to obtain the refund from ASSI and pay the balance due to Aboveboard. We agree that there was a disputed issue of fact regarding whether Totty’s purported signature on the work order/invoice was genuine, but that issue was not material because Totty admitted that the terms of the work order/invoice reflected the terms of the oral agreement he had reached with Isbell on behalf of Aboveboard. Aboveboard’s argument that Totty had a duty to obtain the refund and pay the balance due to Aboveboard does not turn on a factual question, but on a mixed question of law and fact, namely: whether the term in the parties’ contract — that Totty’s payment was “due after refund from ASSI” — constituted a condition precedent to Totty’s duty to pay.

A condition precedent is “ ‘[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.’ ” Lemoine Co. of Alabama, L.L.C. v. HLH Constructors, Inc., 62 So.3d 1020, 1025 n. 5 (Ala.2010) (quoting Black’s Law Dictionary 312 (8th ed.2004)). Because the failure of the occurrence of a condition precedent is an affirmative defense, see Winkleblack v. Murphy, 811 So.2d 521, 529 (Ala.2001); Rule 8(c), Ala. R. Civ. P„ Totty bore “ ‘ “the burden of making a prima facie showing that [he was] entitled to summary judgment” ’ based on this defense.” Richardson v. Terry, 893 So.2d 277, 285 (Ala.2004) (quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), quoting in turn Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).

By submitting his own affidavit and the affidavit of Isbell — both of which asserted that Aboveboard had assumed the risk that ASSI would not issue a refund to Totty — Totty satisfied his burden of making a prima facie showing that the “due-after-refund” provision of the parties’ contract was a condition precedent to Totty’s duty to pay. Aboveboard submitted no evidence, much less substantial evidence, to rebut that showing.

This case is similar to cases construing “pay-when-paid” clauses in construction contracts, in which the issue is whether such clauses create conditions precedent to the duty to pay or, rather, whether they constitute merely timing mechanisms for payment. See, e.g., Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732 (Ala.2002). In Kruger, our supreme court construed a clause requiring the general contractor to pay a subcontractor within 30 days after the owner’s final payment to the general contractor to be a timing mechanism rather than a condition precedent to the duty to pay. The court posed the following question:

“Can it be reasonably supposed, without express evidence in support thereof, that [the general contractor] and [the subcontractor] entered into an agreement pursuant to which [the subcontractor] was expected to perform a significant amount of work and to provide a substantial amount of materials under the terms of the subcontract, without an absolute agreement from [the general contractor] to pay [the subcontractor] for its services and materials? We think not, and nothing in the record indicates that [the subcontractor] agreed to assume the risk of nonpayment by the [owner] for events completely outside its control or influence.”

Kruger, 829 So.2d at 739 (emphasis added). In Kruger, our supreme court noted that its construction of the pay-when-paid clause was supported by the Restatement (Second) of Contracts § 227 (1981), which states, in pertinent part:

“ ‘(1) In resolving doubts as to whether an event is made a condition of an obli-gor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the' circumstances indicate that he has assumed the risk.’ ”

Kruger, 829 So.2d at 739. The court further noted that,

“[u]nder § 227, the preferred interpretation for the pay-when-paid clause contained in the ... subcontract is one that minimizes the risk of forfeiture to [the subcontractor], unless the circumstances indicate that [the subcontractor] assumed the risk of nonpayment. As stated above, nothing in the record indicates that [the subcontractor] assumed such a risk.”

Id. at 739-40.

In the present case, Totty submitted “express evidence” indicating that he and Isbell, as a representative of Aboveboard, understood that Aboveboard had assumed the risk that ASSI might not issue a refund to Totty. Cf. James E. Watts & Sons Contractors, Inc. v. Nabors, 484 So.2d 373, 374 (Ala.1985) (holding that provision in oral contract between contractor and subcontractor that subcontractor would not be paid until after contractor had been paid by the City of Rainsville was a condition precedent because subcontractor “testified that he understood when he went on the job that he would not be paid until [the contractor] received [its] money from the City’).

It is difficult to understand why Aboveboard would have assumed the risk of the occurrence of a condition over which it apparently had no control. See Comment b. to § 227, Restatement (Second) of Contracts, which states, in pertinent part:

“When ... the nature of the condition is such that the uncertainty is not likely to be resolved until after the obligee has relied by preparing to perform or by performing at least in part, he risks forfeiture. If the event is within his control, he will often assume this risk. If it is not tuithin his control, it is sufficiently unusual for him to assume the risk that, in case of doubt, an interpretation is prefemd under which the event is not a condition. The rule is, of course, subject to a showing of a contrary intention, and even without clear language, circumstances may show that he assumed the risk of its non-occurrence.”

(Emphasis added.) Nevertheless, “ ‘[i]f two parties knowingly, clearly, and unequivocally enter into an agreement whereby they agree that the respective liability of the parties will be determined by some type of agreed-upon formula, then Alabama law will permit the enforcement of that agreement as written.’ ” Lemoine Co., 62 So.3d at 1025 (quoting Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722, 729 (Ala.2009)). We, therefore, affirm the summary judgment in favor of Totty.

The Cross-Appeal

“[W]hen the trial court denies an ALAA claim without stating its reasons, this court will reverse only when the record shows indisputably that the ‘action, claim, or defense’ is either ‘groundless in fact,’ see Brashear v. Spinks, [623 So.2d 321 (Ala.Civ.App.1993) ], or ‘groundless in law,’ see Sanderson Group [, Inc. v. Smith, 809 So.2d 823 (Ala.Civ.App.2001) ].” Mahoney v. Loma Alta Prop. Owners Ass’n, 52 So.3d 510, 517 (Ala.Civ.App.2009). Based on the record before us, we cannot conclude that, when Aboveboard filed its breach-of-contract action against Totty in the district court or appealed the district court’s adverse judgment to the circuit court, the action was either groundless in fact or groundless in law. Indeed, unless Aboveboard knew, when it filed the action in the district court or appealed from the district court’s judgment to the circuit court, the substance of Isbell’s rather unexpected affidavit testimony that he, on behalf of Aboveboard, had assumed the risk that ASSI would not issue a refund to Totty (and, therefore, that Aboveboard would not be paid the full contract price for its labor and materials in replacing Tott^s roof), the result of this litigation would, most likely, have been a judgment in favor of Aboveboard. We, therefore, affirm the trial court’s order denying Totty’s motion for attorney fees pursuant to the ALAA.

Totty requests an award of damages and fees pursuant to Rule 38, Ala. RApp. P. That request is granted in the amount of $1,000.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED.

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

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

      . Despite the fact that § 12-19-276, Ala.Code 1975, provides that "[t]he provisions of [the ALAA] are cumulative and in addition to the damages which may be awarded for a frivolous appeal pursuant to Rule 38, Alabama Rules of Appellate Procedure,” Totty does not request an attorney fee on appeal pursuant to the ALAA. Cf. Sam v. Beaird, 685 So.2d 742 (Ala.Civ.App.1996); and Fox v. Murrell, 622 So.2d 386 (Ala.Civ.App.1993).