author: MAIN, Justice. MURDOCK, Justice

text:
    Brian D. RAY v. Jimmy HUETT et al.
    1150572
    Supreme Court of Alabama.
    November 23, 2016

      Mack Clayton, Alexander City, for appellant.
    Braxton Blake Lowe, Gulf Shores, for appellees.
   MAIN, Justice.

Brian D. Ray appeals from a judgment of the Tallapoosa Circuit Court in a will contest transferred to the circuit court from the Tallapoosa Probate Court. For the reasons stated below, we reverse and remand.

I. Facts and Procedural History

In September 2011, Charles A. Huett was admitted into a nursing home after suffering a fall at his house. Shortly after being admitted into the nursing home, Huett’s only son, who had been serving as Huett’s regular caregiver, passed away. After the death of Huett’s son, Ray offered to be Huett’s caregiver. In October 2011, Huett left the nursing home and moved into to Ray’s home, where he lived with Ray and his four young children. Ray’s youngest child, Tessa, was three years old at the time Huett moved in with Ray.

Huett died on January 9, 2012. Following Huett’s death, Ray produced a handwritten will signed by Huett and two witnesses. The will stated:

“On this the 14th Day of December 2011, I, Charles A. Huett, leave my property, vehicles and house to Brian Ray in Trust of the kids to always have a place to play. I do not want my property or house sold, leased or mortgaged for any reason. I have all control of my house and property and vehicles until my death. When I die I want all of my property and vehicles and home to go to Brian Ray for the four children. I do not want anything sold until Tessa turns eighteen. I leave my tractor to Brian Ray. Brian has my permission to give my family members certain items as he sees fit for them to have. This is my wishes and I want them carried out the way I have them here in my will.”

On January 18, 2012, Ray filed a petition to probate Huett’s will, and also filed a petition for letters testamentary. On February 13, 2012, before the will was admitted to probate, Jimmy Huett, Sonzia Huett Holloway, Donda Huett Burns, Amy Huett Clark, Brenda Huett Peterson, Agnes Foshee Allen, Kenneth Faulkner, John Bramblett, Jr., and Tommy Bram-blett (“the contestants”) filed in the probate court a contest to the will. The contestants each claim to be an heir of Huett’s under the laws of intestacy. The complaint contesting the will made the following allegations:

“3. The Contestants aver that the said will was not executed in the mode and manner prescribed by law.
“4. The Contestants aver that the said instrument offered for probate and contested herein is not the toe Last Will and Testament of the, .decedent.
“5. The Contestants herein aver that the decedent was of unsound 'mind and mentally incompetent and did not possess testamentary capacity to make and execute a will ..
“6. The Contestants herein aver that the will ... was procured through undue influence exercised upon the decedent by one or more of the distributes of the estate of said decedent as set forth in said contested will. • •
“7. That a distributee of the estate was in a confidential relationship with the decedent. That sáid distributee was dominant and 'controlling in this relationship and exercised undue activity in procuring the execution of the will being contested. Furthermore, that the decedent was infirm and incompetent. That as a result of this undue influence and while in this condition and relationship the decedent executed the will being contested. That the decedent was persuaded to sign the ■ purported will by a beneficiary of the contested will, and such will because of this undue influence.is not the true last will and testament ■ of the deceased.”

Contemporaneously with the will contest, the contestants filed a request to transfer the will contest to the circuit court pursuant to § 43-8-198, Ala. Code 1975. On February 14, 2012, the probate court transferred the matter to the circuit court.

A bench trial on the will contest was conducted in the circuit court on May 20, 2015. On January 19, 2016, the circuit court issued its final judgment. The court summarized the., proceedings and then made the following conclusions:

“This case came on for trial on May 20, 2015. The parties were represented by counsel. Sworn testimony and other evidence was received by the Court. The [contestants] are blood relatives of Charles A. Huett, ‘ deceased. They brought suit against Brian D. Ray, with the, subject matter being a purported Last Will and Testament of 'the decedent. ,.,
“As an overview, the. [contestants] contest the validity of the purported Will and the circumstances surrounding the same. Their allegations include undue influence by [Ray], lack of testamentary capacity on the part- of the decedent, improper execution of the instrument, and general invalidity of the purported Will.
“[Ray] basically contends that he took care of the elderly Mr. Huett, that Mr. Huett had been abandoned by his family, and the Will was Mr. Huett’s toe Last Will and Testament. The contentions were strenuously contested by the [contestants],
“On August 28, 2015, the Court, by email, directed counsel to attempt a post-trial negotiated settlement of the case, as' the same presents numerous factual and legal difficulties. Concisely stated, while the purported Will may reflect' certain of the decedent’s intentions, the instrument was drafted with no consultation of legal counsel whatsoever. The email stated in part T have a-copy of [contestantes ExhibiL One, i.e., .document signed by Charles Huett and witnesses on my desk. I have read it, tried to analyze it, and tried to make it conform to the applicable law. It stands as a testament to what happens when people try to allegedly do their own legal work.' Since that email the Court has on many other occasions wrestled with the same problems, and has come to the conclusions following below:
“1. While counsel have basically approached this instrument as a will, it is, at best, an attempt to create a testamentary trust. As such, it fails. Its central goal appears to be to provide that .. the kids ,.. always have a place to play.’ ‘The kids’ are never identified, although they apparently refer to the children of Brian Ray. The purported purpose, i.e., ‘... to always have a place to play,’ is so vague as to be impossible to effectuate. If a trust was to be created for the support, maintenance, or education of ‘the kids,’ it was not done. While the Court might be able to find an ‘intention’ on the part of Mr. Huett to create some sort of a trust for the benefit of the ‘the kids,’ it is impossible to determine the nature of the trust he intended. There are simply too many basic, and required, elements that would have to be established by the Court without guidance from the purported will.
“2. The instrument makes clear an intention of the deceased to bequeath his ‘tractor to Brian Ray.’
“In short, the purported will fails to legally and factually establish a trust under the law. It does establish that if ‘my tractor’ can be identified properly that it should become the property of Brian Ray.
“It is therefore ordered adjudged and decreed that the purported Will fails to establish a trust, and that as a Will it bequeaths the decedent’s ‘tractor’ to Brian Ray.”

Ray filed a motion for a new trial, contending, in part, that the testamentary-trust issue' was not an issue before the circuit court. The circuit court-.denied the motion, and Ray appealed..

II. Analysis

On appeal, Ray challenges the circuit court’s subject-matter jurisdiction to address and construe the purported testamentary-trust provision of Huett’s will. Ray contends that the circuit court’s jurisdiction was limited to the issues expressly raised by the contestants’ pleadings, namely, whether Huett had the capacity to make the will; whether the will was properly executed; and whether the will was the product of undue influence. For the following reasons, we agree.

The will contest was filed pursuant to § 43-8-190, Ala. Code 1975. That Code section provides:

“A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsouhdness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the. application, as plaintiff, and the person contesting the validity of the will, as defendant '

Historically, contests under this section and its predecessors have been considered limited to the issue whether the writing in question is the valid will of the decedent, i.e., the issue devisavit vel non (meaning literally, will or no will). See, e.g., Gil-breath v. Wallace, 292 Ala. 267, 269-70, 292 So.2d 651, 653-54 (1974); Nesmith v. Vines, 248 Ala. 72, 73, 26 So.2d 265, 266 (1946) (“The contest of a will ... is limited to determining the validity of the will. The issues are confined to the question of “will or no will.’ ” (construing the predecessor to § 43-8-199)). Therefore, generally, questions concerning the construction of ambiguous terms of the will and who takes thereunder are not issues in a will contest. See Kay v. Elston, 205 Ala. 307, 309, 87 So. 525, 526 (1920) (“Devisavit vel non was the only issue in this cause, and the decree determined ... whether there was a will or not, and not the rights of the parties under the will.”); Ex parte Walter, 202 Ala. 281, 284, 80 So. 119, 122 (1918) (“[I]n a bill to contest a will, ... the issues are confined to the question of ‘will or no will/ and therefore to the determination of the status of the res and matters pertaining thereto, and is not to be extended to questions concerning the rights of the parties.”).

The will contest in this case was transferred to the circuit court pursuant to § 43-8-198, Ala. Code 1975. That section provides:

“Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within 42 days after the entry of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court.”

(Emphasis added.) We have held that the jurisdiction conferred on the circuit court by this section is statutory and limited:

“ ‘It is ... settled that in the trial of the issues of the contest certified out of the probate court to the circuit court under [§ 43-8-198] that the jurisdiction conferred on the circuit court is statutory and limited, and to warrant the exercise of that jurisdiction there must be pending in the probate court a valid contest when the probate court or the judge thereof enters the order transferring the contest to the circuit court. ...
“ ‘The jurisdiction and authority of the circuit court is limited to the trial of the issues presented by the contest after which the case must be certified back to the probate court.’ ”

Bardin v. Jones, 371 So.2d 23, 26 (Ala. 1979) (quoting Thigpen v. Walker, 251 Ala. 426, 429, 37 So.2d 923, 925-26 (1948)); Jean v. Jean, 32 So.3d 1274, 1276 (Ala. 2009) (“ ‘The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited.... The only jurisdiction a court can take over such cases is that granted by statute.’” (quoting Kaller v. Rigdon, 480 So.2d 536, 539 (Ala. 1985))). A circuit court, however, is not limited to the issues presented to the probate court prior to the transfer, and a circuit court can, in accordance with the Alabama Rules of Civil Procedure, allow additional issues in the will contest, “provided those issues can properly be raised in a will contest.” Bardin, 371 So.2d at 26; see also Crim v. Pike, 663 So.2d 903, 904-05 (Ala. 1995).

In this case, from the record before us it appears that the only issues raised by the contestants were those issues set forth in their complaint contesting Huett’s will: i.e., whether Huett had the testamentary capacity to execute a will; whether the will was properly executed; and whether Ray exercised undue influence over Huett. It appears that these three issues were the only issues tried before the circuit court. No motions were made to amend the pleadings to add additional claims or to conform the pleadings to the evidence presented at trial. Indeed, these three issues remain the only issues argued by the contestants on appeal. Accordingly, these issues were the only issues properly before the trial court. Thus, we agree with Ray that the circuit court exceeded its authority in attempting to construe the various devises in the will.

Ray further argues, however, that the circuit court implicitly held that the will was valid because it could not have reached the point of construing the various devises without necessarily first finding that Huett had testamentary capacity, that he had properly executed the will, and that he was not subjected to undue influence. Thus, Ray argues that this implicit holding of validity is due to be affirmed, and, having decided all the issues before it in his favor, the circuit court should be directed to dismiss the will contest and to certify the case back to the probate court. Based on the language of the circuit court’s order, however, we cannot say that the court reached the issue of the validity of the will. For example, the order concludes:

“In short, the purported will fails to legally and factually establish a trust under the law. It does establish that if ‘my tractor’ can be identified properly that it should become the property of Brian Ray.
“It is therefore ordered adjudged and decreed that the purported will fails to establish a trust, and that as a will it bequeaths the decedent’s ‘tractor’ to Brian Ray.”

(Emphasis added.) The circuit court’s continued use of the phrase “purported will” indicates that it made no ultimate determination as to the validity of the will. Instead, it appears that the circuit court attempted to make piecemeal determinations as to the validity of the will based on its determination as to the effectiveness of each devise within the will. As explained above, however, the effectiveness of particular devises was not an issue before the circuit court. Instead, the circuit court should have decided the case on the issues actually raised in the contest—i.e., testamentary capacity, valid execution, and undue influence. Accordingly, we reverse the judgment of the circuit court and remand the case for the circuit court to decide the specific will contest issues before the court, and to enter a judgment either upholding or denying the contest.

REVERSED AND REMANDED.

Stuart, Bolin, Parker, Shaw, Wise, and Bryan,. JJ., concur.

Murdock, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent.

I disagree with the interpretation in the main opinion of the circuit court’s judgment. The judgment was entered after a trial on the merits as to the issue whether the purported will was invalid because of “undue influence by the. Defendant [Ray], lack of testamentary capacity on the part of the decedent, improper execution of the instrument, and general invalidity of the purported Will.” The judgment reflects an adjudication that the instrument at issue, “as a will[,] ... bequeaths the decedent’s ‘tractor’ to Brian Ray.” As such, the judgment necessarily adjudicates that the instrument is a valid will, at least in some respect, and the judgment necessarily denies the claim that the will was invalid because of undue influence by Ray, lack of testamentary capacity, etc. That conclusion is further supported by the fact that the circuit court denied Ray’s motion for -a new trial, in which he argued that the judgment does not “render a final judgment on all issues presented at trial.”' Accordingly, I would affirm that portion of the trial court’s judgment constituting its adjudication that the will is the testator’s valid will, and I would vacate the judgment insofar as it purports to address the terms of the will and their effect—the latter matters not being within the limited jurisdiction of the circuit court in a will-contest proceeding under § 43-8-198, Ala. Code 1975.

Further, if the main opinion’s interpretation of the judgment were correct, the proper course would' be to dismiss the appeal as being from a nonfinal judgment. Section 12-22-21(1), Ala. Code 1975, states that an appeal may be taken “[f]rom the decree, judgment or order on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest.” Yet, the main opinion concludes that this Court “cannot say that.the court reached the issue' of the validity of the will.” 225 So. 3d at 35. Either the circuit court did or it' did not adjudicate “the validity of the will.” If it did not adjudicate the validity of the will, there has been no “determination of the contest” that would support an appeal under § 12-22-21(1). If the circuit court did adjudicate the validity of the will, but this Court cannot discern what the' circuit court’s conclusion was in that respect, a limited'remand for clarification would be in order. But I fail to see on what basis this Court can “reverse” a judgment this Court posits does not adjudicate the issue on which the appeal of that judgment must be premised.

      . A jury trial was not demanded.

      . Section 43-8-190 provides that the grounds for a will contest are “that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto.” Other recognized valid grounds for a contest include: that the will was procured by undue influence, see Ex parte Helms, 873 So.2d 1139, 1148 (Ala. 2003); that the will was executed through mistake, see Martindale v. Bridgforth, 210 Ala. 565, 98 So. 800 (1924); that the will was procured by fraud, see Bolan v. Bolan, 611 So.2d 1051, 1058 (Ala. 1993); and that the will had been revoked by the testator, see Maxwell v. Dawkins, 974 So.2d 282 (Ala. 2006).

      . In that we have determined that the circuit court's order did not resolve the actual issues before it, the judgment was not final. Section 12-22-21(1), Ala. Code 1975, however, provides for an appeal from a nonfinal order of the probate court entered “on a contest as to the validity of a will.” Brown v. Brown, 21 So.3d 1, 2-3 (Ala. Civ. App. 2009). With regard to appeals tinder this statute, this Court "has traditionally treated such orders of the circuit court as though they were orders of the probate court.” Tate v. Kennedy, 578 So.2d 1079, 1080 n.2 (Ala. 1991).

      . Note 3 of the main opinion reflects a misunderstanding of § 12-22-21(1) and fails to take into account that any judgment as to which an appeal is sought must reflect a “determination of the contest.”


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    EX PARTE PT SOLUTIONS HOLDINGS, LLC (In re: Laurie B. White v. PT Solutions Holdings, LLC)
    1150687
    Supreme Court of Alabama.
    November 23, 2016

      J. Richard Carrigan and Jeremiah J. Rogers of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for petitioner.
    Charles D. Hudson of Penn & Seaborn, LLC, Montgomery, for respondent.
   MURDOCK, Justice.

PT Solutions Holdings, LLC (“PT Solutions”), petitions this Court for a writ of mandamus seeking an order directing the Barbour Circuit Court to vacate its March 15, 2016, order denying PT Solutions’ motion to dismiss the underlying complaint filed by Laurie B. White based on an outbound forum-selection clause and to grant the motion to dismiss. We grant the petition.

I. Facts

PT Solutions states that it is a Georgia-based company that operates physical-therapy clinics. In 2006, PT Solutions hired White as the clinic director of its Eufaula, Alabama, location, which is located near the Alabama-Georgia border. In September 2014, PT Solutions revised the employment agreements for its clinic directors. PT Solutions states that the purpose of the revision was to make those contracts uniform and easier to administer. The new contract consisted of a “Letter Agreement” (“the letter agreement”) that stated the terms of compensation and a “Noncompetition and Nonsolicitation Agreement” (“the noncompetition agreement”).

One of the changes implemented in the new contract was a new bonus plan. The letter agreement provided that clinic directors were eligible for annual bonuses, the target amount of which is prorated and paid on a monthly basis, and the actual amount is finalized at the end of each year. In its opening paragraph, the letter agreement provided: “If you sign and return this Letter Agreement no later than 11/3/2014, this Letter Agreement will be retroactively effective as of September 1, 2014.” In a subsequent paragraph, the letter agreement provided: “As of September 1, 2014, you will be eligible to participate in an annual performance bonus program for each calendar year that you are employed by [PT Solutions]. Eligibility for Bonus compensation requires execution of the ‘Noncompetition and Nonsolicitation Agreement’ attached hereto and incorporated by reference herein ....” The final paragraph of the letter agreement provided: “If you wish to accept this offer (including the attached Noncompetition and Nonsolicitation Agreement) on the terms described above, please sign and date this Letter Agreement and return it to [PT Solutions] no later than 11/03/14.”

In part, the noncompetition agreement prohibited a clinic director from,

“either directly or indirectly, participating] in any Restricted Business (as such terms are defined below). For purposes of this offer of employment and except as allowed above, (a) the term ‘Participate’ means to have any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, agent, representative, independent contractor, consultant, franchisor, franchisee, creditor, owner or otherwise ...; (b) the term ‘Restricted Business’ means any enterprise, business or venture within 25 miles of any location where you provided services during your employment with [PT Solutions] and where you ... provided services at the time of •termination, which is engaged in the Business or a business identical to or engaged in any portion of the Business of [PT Solutions].”

The noncompetition agreement also contained a choice-of-law and outbound forum-selection clause, which provided:

“This Agreement has been entered into under and shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict of laws provisions. You agree that a Superior Court in Fulton County, Georgia, shall be the sole and exclusive .jurisdiction and venue for all 'disputes between the , parties under this Agreement. Employee hereby irrevocably consents to jurisdiction and venue of such court for adjudication of all disputes between the parties under this Agreement and waives any objections or defenses to jurisdiction or venue in any such proceeding.”

(Emphasis added.)

PT Solutions provided White with the letter agreement and-the noncompetition agreement on October 27, 2014. After that date, White regularly communicated with PT Solutions to discuss the terms of the new contract. According to an affidavit from Amy Scott, PT Solutions' director of Human Resources, around November 15, 2014, White met with senior administration for PT Solutions in Callaway Gardens, Georgia, to discuss the new contract, the bonus plan, and the fact that she would need to sign both the letter 'agreement and the noncompetition agreement in order to participate in the bonus program! On December 29, 2014, Scott e-mailed White to remind her that she needed to execute the new contract by December 31, 2014, ■ in order to be eligible for the bonus program. White responded the same day with an email in which she stated that she was concerned that the bonus program was based on ■

“units not visits for our clinic which could mean a 20% pay cut at the end of thé year. Our previous bonus structure worked for our clinic because it took into account the actual profit at the ¿nd of the year and not necessarily the unit goal. While we'may not meet the unit goál due to our Medicare population, we try to market cheaper, work with less staff and keep our expenses lower to increase overall profit. I have not received an incentive based on units since July[;] however, [I] have received an incentive based on visits almost every month prior to the new contract. I am eager to sign a contract that works.for all, please let me know your thoughts,”

According to Scott, the next day White met with PT Solutions’ director of Clinical Operations Danny Mayhan for a final discussion about her bonus structure, On December 31, 2014, White signed the letter agreement and the noncompetition agreement. White acknowledges that she signed both portions of the new contract on that date.

■ According to PT Solutions, it paid White a $6,500 year-end bonus for 2014, which she would not have received absent her execution of the letter agreement and the noncompetition agreement. PT Solutions also says that White received subsequent monthly bonus payments in 2015, for a total of $10,666 in bonuses received under the new contract. White denies that she was paid bonuses under the new contract.

On September 9, 2014, Eufaula Physical Therapy (“EPT”), a physical-therapy company located less than half a mile from PT Solutions’ Eufaula clinic, was formed. On June 26, 2015, White voluntarily resigned her position as clinic director of PT Solutions’ Eufaula clinic and became clinic director for' EPT. She also recruited the office manager and two physical therapists who were working at PT Solutions’ Eufau-la clinic to come work at EPT. A PT Solutions’ customer, Medical Center Barbour, terminated its contract with PT Solutions, providing as its reason that White at EPT had made a very good offer to take over PT Solutions’ work.

Because of White’s actions on behalf of EPT, PT Solutions’ counsel, on December 9, 2015, sent. White a cease-and-desist letter in which he asserted that White had violated the noncompetition agreement.

In response to the cease-and-desist letter, on December 21, 2015, White sued PT Solutions and fictitiously named defendants in the Barbour Circuit Court (“the Alabama action”); she sought a judgment declaring that the noncompetition agreement was unenforceable. The complaint asserted that the outbound forum-selection clause was unenforceable because: (1) the Georgia forum is 155 miles from White’s residence, which, she said, Was “unnecessarily and avoidably disruptive and burdensome” to her; (2) White did not have sufficient contacts with Fulton County, Georgia; (3) “[t]he course of dealings, negotiations, and employment- all occurred within the Eufaula division' of the Circuit Court of Barbour County, Alabama”; (4) under Alabama law the noncompetition agreement cannot be enforced against a “professional,” and White qualifies as a professional because Alabama law recognizes physical therapists as professionals; therefore, White argues, the noncompetition agreement violates the public policy of Alabama; and (5) by its terms the letter agreement was effective only if it was signed by November 3, 2014, and White did not sign it until December 31, 2014; therefore, Whites argues, the new contract was not enforceable.

On January 28, 2016, PT Solution's sued White in the Fulton County, Georgia, Superior Court alleging that she had breached the noncompetition agreement, had violated the Georgia Uniform Trade Secrets Act, and had tortiously interfered with PT Solutions’ business relationships (“the Georgia action”).

On February 1, 2016, PT Solutions filed a motion in the Barbour Circuit Court to dismiss the Alabama action, asserting improper venue and lack of subject-matter jurisdiction based on the forum-selection clause. On March 2, 2016, White filed an answer and a motion to dismiss the Georgia action. On March 15, 2016, the circuit court denied PT Solutions’ motion to dismiss the Alabama action. In the same order, the circuit court set the case for trial on May 11, 2016.

On March 21, 2016, White filed her “First Set of Requests for Admissions and Requests for Production, and Interrogatories” in the Alabama action. The following day, White filed a motion to reduce by two weeks the period within which PT Solutions must respond to that discovery. On March 23, 2016, PT Solutions opposed White’s motion and filed a motion to stay the Alabama action in light of the fact that it was preparing to file a petition for a writ of mandamus with this Court. White filed a reply on- the following day opposing the motion to stay. ,

On March 24, 2016, PT Solutions' filed the instant petition for a writ of mandamus directing the circuit court to vacate its order denying the motion to dismiss the Alabama action and to grant the motion.

On March 29, 2016, White filed a “First Amendment to Complaint” in the Alabama action in which she added a claim seeking a declaration that “[e]nforcing the forum selection clause in this case would undermine the fundamental public policy of the State of Alabama.”

On April 15, 2016, this Court ordered answers and briefs and stayed the proceedings in the Alabama action pending resolution of the petition.

II. Standard of Review

“[A]n attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit eviden-tiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala. Civ. App. 2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala. Civ. App. 1999).”

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala. 2001).

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

Ex parte Leasecomm Corp., 886 So.2d 58, 62 (Ala. 2003).

III. Analysis

In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the United States Supreme Court concluded that, for purposes of federal law, outbound forum-selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” This Court in Professional Insurance Corp. v. Sutherland, 700 So.2d 347, 351 (Ala. 1997), agreed with the Supreme Court’s reasoning, stating that “a forum selection clause should be enforced so long as enforcing it is neither unfair nor unreasonable under the circumstances.” The Court later expounded on this idea as follows:

“[I]t has been well established that [an outbound forum-selection] clause will be ‘upheld unless the party challenging the clause clearly establishes that it would be unfair or unreasonable under the circumstances to hold the parties to their bargain.’ Ex parte CTB, Inc., 782 So.2d [188,] 190-91 [ (Ala. 2000) ]. The showing is sufficient where it is clearly established ‘ “(1) that enforcement of the forum selection clause[] would be unfair on the basis that the contract ] [was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action.” ’ Id. at 191 .... ”

Ex parte Leasecomm Corp., 886 So.2d at 62-63 (emphasis omitted). The Court has noted that “[t]he burden on the challenging party is difficult to meet.” Ex parte D.M. White Constr. Co., 806 So.2d at 372.

In its motion to dismiss below, PT Solutions introduced a contract indisputably signed by White that contained an unambiguous outbound forum-selection clause that dictates that the only proper venue for a dispute between the parties is the Superior Court in Fulton County, Georgia. Therefore, PT Solutions met its initial burden of establishing that White’s action should be dismissed as having been filed in an improper venue. The burden then shifted to White to clearly establish that enforcement of the forum-selection clause would be unfair or unreasonable under the circumstances.

As we noted in the rendition of the facts, White presented several arguments as to why she believes the forum-selection clause is unenforceable. White focuses on only one of those arguments in her response to PT Solutions’ petition. Specifically, White contends that the forum-selection clause is invalid because it is contained in a noncompetition agreement that, she says, violates Alabama public policy. The components of White’s argument are as follows. First, she argues that the noncompetition agreement is a restraint on the practice of her profession of physical therapy. Second, she contends that prohibiting restraints on the practice of a profession is a fundamental public policy of the State of Alabama, citing §§ 8-1-190, 8-1-196, and 8-1-197, Ala. Code 1975, for support. Third, she notes that in M/S Bremen the United States Supreme Court stated: “A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” 407 U.S. at 15. White thus concludes that the forum-selection clause should not be enforced because the noncompetition agreement violates a fundamental public policy in this State.

The problem with this argument is that White misunderstands the statement in M/S Bremen. The Supreme Court stated that a forum-selection clause “should be held unenforceable if enforcement [of the clause] would contravene a strong public policy of the forum in which suit is brought.” Id. In other words, the Court was saying that enforcement of the forum-selection clause must contravene a state’s public policy, not that the clause should be held unenforceable if enforcement of the contract that contains the clause would contravene a state’s public policy. As one federal district court has explained: “[W]hat matters is not whether the contract as a whole violates public policy, but whether' the forum-selection clause itself violates public policy.” Fountain v. Oasis Legal Fin., LLC, 86 F.Supp.3d 1037, 1044 (D. Minn. 2015). See also Brandt v. Comtrust, Inc., No. CV06-166-S-EJL, July 28, 2006 (D. Idaho 2006) (not selected for publication in F. Supp.) (refusing to enforce a forum-selection clause because of Idaho’s strong public policy against the enforcement of such clauses); Jones v. GNC Franchising, Inc., 211 F.3d 495, 497 (9th Cir. 2000) (affirming a district court’s refusal to enforce the parties’ contractual forum-selection clause, concluding that it contravened California’s strong public policy against enforcing such clauses in franchise agreements). White’s argument goes to the enforcement of. the contract as a whole, i.e., that enforcement of the non-competition agreement would contravene a strong public policy of the State, not to enforcement of the forum-selection clause itself. “It has long been established that forum-selection clauses are not against Alabama public policy ....” Ex parte Riverfront, LLC, 129 So.3d 1008, 1015 (Ala. 2013). Therefore, the possibility that the noncompetition agreement violates Alabama public policy does not prohibit enforcement of the forum-selection clause.

White also contended below that the contract was unenforceable because she did not sign the contract until December 31, 2014, and the final paragraph of the letter agreement provided: “If you wish to accept this offer (including the attached Noncompetition and Nonsolicitation Agreement) on the terms described above, please' sign and date this Letter Agreement and return it to [PT Solutions] no later than 11/03/14.” In other words, White asserted that she did not accept the offer of the new contract in a timely manner according to its terms, and therefore the new contract never became effective. According to White, because the new contract never took effect, the forum-selection clause in the noncompetition agreement cannot be enforced.

Like White’s public-policy argument, this argument about whether the contract ever became effective challenges the contract as a whole, not the validity of the forum-selection clause. But when venue is challenged based on a forum-selection clause, as it was in this case, the .court evaluates only the validity of the forum-selection clause.

“[N]umerous courts ... have addressed the validity of a forum-selection clause before determining, the validity of a contract. as a whole. See Rucker v. Oasis Legal Fin., LLC, 632 F.3d 1231, 1237-38 (11th Cir. 2011) (treating the forum-selection clause as a severable part of the contract and analyzing its validity separately); see also Muzumdar v. Wellness Int’l Network, Ltd., 438 F.3d 759, 762 (7th Cir. 2006) (reasoning that the court must decide whether it is the proper court to decide the validity of the contract before it decides the validity of the contract).”

Fountain v. Oasis Legal Fin., LLC, 86 F.Supp.3d at 1044.

“Appellants also spend a good deal of time trying to convince us that because the contracts themselves are void and unenforceable as against public policy— i.e., they set out a pyramid scheme—the forum selection clauses are also void. The logical conclusion of the argument would be that the federal courts in Illinois would first have to determine whether the contracts were void before they could decide whether, based on the forum selection clauses, they should be considering the cases at all. An absurdity would arise if the courts in Illinois determined the contracts were not void and that therefore, based on valid forum selection clauses, the cases should be sent to Texas—for what? A determination as to whether the contracts are void?”

Muzumdar v. Wellness Int’l Network, Ltd., 438 F.3d 759, 762 (7th Cir. 2006). “Allegations that the entire contract was procured as the result of fraud or overreaching are ‘inapposite to our [forum-selection clause] enforceability determination, which must ,.. precede any analysis of the merits [of the contract’s validity].’” Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir. 1998) (quoting Haynsworth v. The Corporation, 121 F.3d 956, 964 (5th Cir. 1997) (bracketed language added in Moeykens)).

In the context of discussing allegations of fraud in a contract dispute, this Court explained the logic behind considering the validity of the forum-selection clause before analyzing the validity of the contract as a whole.

“The United States Supreme Court in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), relying on its holding in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), addressed the enforcement of forum-selection clauses and upheld the enforceability of a forum-selection clause •when the action involved claims of fraud. In Scherk, the Court, despite the allegations of fraud, upheld the enforcement of a forum-selection clause, stating:
“‘In The Bremen we noted that forum-selection clauses “should be given full effect” when a “freely negotiated private international agreement [is] unaffected by fraud..." 407 U.S. at 13. This qualification does not mean that any time a dispute arising out of a transaction is based upon an allegation of fraud, as in this case, the clause is unenforceable. Rather, it means that an arbitration or forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.’
417 U.S. at 519 n. 14, 94 S.Ct. 2449. The United States Court of Appeals for the Eleventh Circuit in Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1296 (11th Cir. 1998), applied the Scherk holding, stating, ‘By requiring the plaintiff specifically to allege that the choice clause itself was included in the contract due to fraud in order to succeed in a claim that the choice is unenforceable, courts may ensure that more general claims of fraud will be litigated in the chosen forum, in accordance with the contractual expectations of the parties.’
“Thus, the proper inquiry is whether ‘the forum-selection clause is the result of fraud in the inducement in the negotiation or inclusion in the agreement of the forum-selection clause itself. If the forum-selection clause is the result of fraud in the inducement, then the fraud exception to the enforceability of the clause applies. However, if the claim of fraud in the inducement is directéd toward the entire contract, the fraud' exception to enforcement of the forum-selection clause does not apply.”

Ex parte Leasecomm Corp., 879 So.2d 1156, 1158-59 (Ala. 2003) (second emphasis, other than on “in the chosen forum,” added).

White has never contended that the forum-selection clause itself is invalid as the result of fraud, undue influence, or overweening bargaining power. Instead, she challenged the validity of the contract as a whole based on when she executed it. White is certainly entitled to argue that the contract never became effective, but the argument must be raised in the forum dictated by the forum-selection clause because the possible invalidity of the contract as a whole does not negate enforcement of the forum-selection clause.

The only argument White raised below that challenged the forum-selection clause itself was her assertion that, because the Georgia forum is 155 miles from White’s residence, litigating in the forum was “unnecessarily and avoidably disruptive and burdensome” to White. At least in regard to the facts of this case and the arguments presented, we find White’s position üncompelling.

This Court has held that

“distance of travel does not establish that a forum is unreasonable. Ex parte Northern Capital Res. Corp., 751 So.2d 12 (Ala. 1999) (enforcing outbound forum-selection clause requiring that litigation be conducted in. Missouri); O’Brien Eng’g Co. v. Continental Machs., Inc., [738 So.2d 844 (Ala. 1999)] (enforcing outbound forum-selection clause requiring that litigation be conducted in Minnesota); Moseley v. Electronic Realty Assocs., 730 So.2d 227 (Ala. Civ. App. 1998)(enforcing outbound forum-selection clause requiring that litigation be conducted in Kansas); and Professional Ins. Corp., et al. v. Sutherland, 700 So.2d 347 (Ala. 1997)(enforcing outbound forum-selection clause requiring that litigation be conducted in Florida).”

Ex parte D.M. White Constr. Co., 806 So.2d at 373-74. A complaining party must cite more than mere distance to warrant negating the forum-selection clause. “ ‘Inconvenience’ sufficient to void a forum-selection clause is present where a ‘trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court.’” Ex parte Leasecomm Corp., 886 So.2d at 62-63 (quoting Ex parte Rymer, 860 So.2d 339, 342 (Ala. 2003)).

In this case, White admitted that both PT Solutions’ Eufaula clinic and EPT’s clinic are located near the Alabama-Georgia border. White acknowledged that she treated many patients from Georgia when she worked for PT Solutions. There is also evidence indicating that White traveled to Georgia several times for business purposes during her employment with PT Solutions. Furthermore, White did not explain how the designated forum would be so “gravely difficult and inconvenient” as to deprive her of her day in court. Instead, White simply argued that “[forcing [White] to litigate in Fulton County, Georgia would ‘spread thin [her] resources and would hamper [her] ability to obtain quick, convenient, and effective relief.’ Olivier v. Merritt Dredging Co., 979 F.2d 827, 834 (11th Cir. 1992).” In short, the inconvenience to White does not rise to a level justifying negation of the forum-selection clause.

In sum, PT Solutions presented an unambiguous forum-selection clause that was contained in a contract indisputably signed by White, and White failed to present— either in this Court or in the circuit court—an ai’gument that establishes that it would be unfair or unreasonable under the circumstances to enforce the forum-selection clause. Accordingly, the circuit court exceeded its discretion in denying PT Solutions’ motion to dismiss the Alabama action.

IV. Conclusion

White failed to clearly establish that enforcement of the forum-selection clause would be either unfair or unreasonable. PT Solutions has demonstrated a clear legal right to have the action against it dismissed on the basis that venue in the Barbour Circuit Court is, by virtue of the outbound forum-selection clause, improper. The circuit court exceeded its discretion in denying PT Solutions’ motion to dismiss. We direct the court to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

Stuart, Bolin, Main, and Bryan, JJ., concur.

      . The submissions from the parties indicate that PT Solutions is a business formed in Alabama that now maintains its principal place of business in Georgia. White submitted a "Business Entity” filing from the Alabama Secretary of State’s Web site that lists PT Solutions as a "Domestic Limited Liability Company” with a "registered office” at "6715 Taylor Court, Montgomery Alabama 36117.” The header on the first page of the contract at issue also lists the foregoing Montgomery address for PT Solutions. In the complaint it filed in the Superior Court of Fulton County, Georgia, PT Solutions stated that it is ‘‘a limited liability company with its principal place of business at 1990 Vaughn Road, Suite 330, Kennesaw, Georgia, 30144. [PT Solutions] does business "throughout the country, including but not limited to Alabama and Georgia.” Another exhibit attached to PT Solutions’ petition is a business-information sheet from the Corporations Division of the State of Georgia that lists PT Solutions as a "Foreign Limited Liability Company” with its “principal office address” at the Georgia address mentioned in its Georgia superior court complaint. A "Certificate of Authority” from the Georgia Secretary of State states that PT Solutions "has been duly formed under the laws of Alabama and has filed an application meeting the requirements of Georgia law to transact business as a Foreign Limited Liability Company in this state.” In PT Solutions’ responses to White's "First Set of Requests for Admissions and Requests for Production, and Interrogatories,” PT Solutions states that it “admits that it was formed under Alabama law; however, PT Solutions does business in both Alabama and Georgia, among other places, and its principal place of business is in Kennesaw, Georgia.”

      . "An ‘outbound’ forum selection clause is one providing for trial outside of Alabama, while an ‘inbound’ clause provides for trial inside Alabama.’’ Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 348 n.1 (Ala. 1997).

      . Sections 8-1-196 and 8-1-197 were added by Act No. 2015-465, effective January 1, 2016. Section- 8-1-190(a) (formerly § 8-1-1(a)), Ala. Code 1975, provides that “[e]very contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.” Section 8-1-196, Ala. Code 1975, provides: “Nothing in this article shall be construed to eliminate any professional exemption recognized by Alabama law.” Section 8-1-197, Ala. Code 1975, provides:
      "It is hereby declared that this article expresses fundamental public policies of the State of Alabama. Therefore, this article shall govern and shall be applied instead of any foreign laws that might otherwise be applicable in those instances when the application of those foreign laws would violate a fundamental public policy expressed in this article.”


author: MAIN, Justice.

text:
    The GARDENS AT GLENLAKES PROPERTY OWNERS ASSOCIATION, INC., et al. v. BALDWIN COUNTY SEWER SERVICE, LLC
    1150563
    Supreme Court of Alabama.
    Sept. 23, 2016
    Rehearing Denied Nov. 10, 2016

      John A. Wenzel, C. Randall Caldwell, Jr., and Deepti Asthana of Caldwell, Wen-zel & Asthana, P.C., Foley, for appellants.
    Bert P. Taylor of Taylor Partners, LLC, Orange, for appellee.
   MAIN, Justice.

The Gardens at Glenlakes Property Owners Association, Inc., Lake View Villas Association, Inc., Lake View Estates Property .Owners Association, Inc., Glenlakes Unit One Property Owners Association, Inc., and Glenlakes Master Association, Iric. (“the Associations”), and Glenlakes Golf Club, Inc. (“the Golf Club”), appeal a judgment entered against them and in favor of, Baldwin County Sewer Service, LLC (“BOSS”), by' the Baldwin Circuit Court. For the reasons stated below, we reverse and remand.

I. Facts and Procedural History

In 1985, South. Alabama Sewer Service, Inc. (“SASS”), and Lake View Developers, Ltd. (“Lake View”), entered into an agreement pursuant to which SASS was to construct a sewer line from its waste-treatment facility to a new planned subdivision and golf course in Baldwin County, known as Lake View Estates, that was being developed by Lake View. In 1987, Lake View and SASS entered into an agreement by which SASS agreed to accept waste' water from Lake View Estates for treatment. Lake View agreed that, for each lot it sold in the first two phases of the development of Lake View Estates, it would purchase a sewer tap from SASS at a specified cost and pass the cost of the tap on to each purchaser. In return, SASS agreed that it Would provide sewer service to Lake View Estates and charge “regular monthly service rates to all users within Lakeview Estates that it charges to similar customers.”

In 1989, Lake View filed for bankruptcy. The development and golf course, excluding lots that had already been sold, were placed in receivership. On November 8, 1991, the development and golf course were purchased by Lakeview Realty Co. (“Lakeview Realty”).

. On November 13,1991, SASS and Lake-view Realty entered • into a new sewer agreement (“the 1991 agreement”). The 1991 agreement provided, in part:

“RECITALS
“A. [Lakeview Realty] has entered into a contract to purchase from the Resolution Trust Corporation, as Receiver for Alamo Federal Association of Texas, a subdivision in Baldwin County, Alabama known as Lakeview Estates consisting of a golf course, approximately 180 developed lots, and vacant land for future development (‘Lakeview Estates’). .
“B. [SASS] has constructed- a sewer line from its waste treatment facility to Lakeview Estates, and certain inner service sewer lines within the subdivision serving the developed lots have been installed,
■ “C. The parties desire to set out herein their agreement whereby future purchasers of the lots in Lakeview Estates will purchase sewer taps from [SASS] and [SASS] will furnish sewer service to such owners of lots in Lakeview Estates.
“NOW,- THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties do agree as follows:
“1. Sewer Taps and Services. [SASS] agrees to furnish sewer taps and sewer service to all lots in Lakeview Estates, both those lots now developed and all lots developed in the future. [Lakeview Realty] agrees to include a provision in its real estate sales contracts requiring that all purchasers of its lots in Lake-view Estates purchase sewer taps exclusively from [SASS] upon the terms and conditions contained in this Agreement.
“4. Inner Service Sewer Lines. Upon the sale and closing of the within described property from the Resolution Trust Corporation to [Lakeview Realty], all inner service sewer lines in Phase I shall be conveyed to [SASS] free and clear of all liens. .Upon the completion, inspection and acceptance by [SASS] of all inner service [sewer lines] in each future development phase of Lakeview Estates, [Lakeview Realty] shall promptly convey by appropriate legal instrument all of the inner service sewer lines within such phase to [SASS] free and clear of all liens.
“5. Waste Water. [SASS] agrees to accept waste water from Lakeview Estates for treatment at its waste treatment facility for all lots with respect to which sewer tap fees and monthly service fees have been paid to [SASS]. [SASS] shall charge regular- monthly sewer serve rates to all users within Lakeview Estates that are competitive with charges made by others for similar services in the South Baldwin County vicinity. The charges for customers in Lakeview Estates shall not be more than charges for all other customers of the same class or type.”

The 1991 agreement further purported to cancel and to replace all prior agreements involving SASS related to Lake View Estates, including the 1987 agreement between SASS and Lake View, and stated that “[t]his agreement shall be construed as a covenant running with the land.” The 1991 agreement was recorded in the Baldwin County probate office. The 1991 agreement did not include a legal description of the property comprising “Lake View Estates.”

In July 2003, BCSS put'chased from SASS the sewer lines and sewer facilities servicing Lake View Estates. In 2004, BCSS purchased all the stock of SASS. Subsequent to BCSS’s purchase of SASS and its facilities in Baldwin County, all monthly sewer fees related to Lake View Estates have been billed by and paid to BCSS.

Sometime following its acquisition of SASS’s sewer system, BCSS enacted a rate increase affecting customers in Lake View Estates. In 2014, the Associations, whose members are property owners in Lake View Estates, sued BCSS in the Baldwin Circuit Court, generally asserting that BCSS had violated the sewer-service-rate provision of the 1991 agreement. The Associations contend that the rate increase effected by BCSS resulted in a rate that exceeded the rate permitted by the 1991 agreement. The Associations asserted claims of breach of contract, conversion, “willfully violating] the terms” of the 1991 agreement, deprivation of owner in possession, and theft of property by deception and sought a declaratory judgment and specific performance of the 1991 agreement. The Golf Club and the City of Foley, who owns property in Lake View Estates, were granted permission to intervene in the lawsuit, with each also seeking to enforce the 1991 agreement. The Golf Club’s complaint in intervention asserted claims of breach of contract and also sought a declaratory judgment and specific performance against BCSS. The City of Foley sought declaratory relief.

On June 1, 2015, the Associations and the Golf Club filed a joint motion for a partial summary judgment on their request for a declaratory judgment. On July 9, 2015, BCSS filed a cross-motion for a summary judgment on the declaratory-judgment issue. BCSS argued that the Associations and the Golf Club lacked standing to enforce the 1991 agreement on behalf of the individual property owners and that the 1991 agreement was unenforceable because it was, BCSS argued, “ambiguous on its face.” On September 23, 2015, the trial court entered a summary judgment in favor of BCSS and denied the Associations and Golf Club’s motion for a summary judgment. The court concluded that the Associations and the Golf Club lacked standing to enforce the 1991 agreement and that, even if they had standing, the 1991 agreement was unenforceable because it is “vague and ambiguous” concerning the specific property to which it applies and the rate allowed to be charged customers in Lake View Estates. In light of its ruling, the trial court ordered the parties to show cause why all remaining claims should not be dismissed. The Associations and the Golf Club conceded that, given the trial court’s ruling concerning the enforceability of the 1991 agreement, all remaining claims were untenable. On October 20, 2015, the trial court entered a final judgment dismissing all remaining claims. The Associations and the Golf Club appealed.

II. Standard of Review

“We review a summary judgment de novo. Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citing American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002)).

“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial 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.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’ “844 So.2d at 545 (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)) (citations omitted).
“Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.”

Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So.2d 1135, 1139 (Ala.2006).

III. Analysis

The Associations and the Golf Club argue that the trial court erred in concluding that they lacked standing and that, in any event, the 1991 agreement was unenforceable. We agree.

We first address the trial court’s conclusion that the Associations and the Golf Club lacked standing to assert claims based on the 1991 agreement. Specifically, the trial court concluded that because the Associations were “not the owners of any interest in the property made the subject of the ’91 Sewer Agreement ... the [Associations] do not have standing to assert property damage claims on behalf of individual owners ... [or] standing to seek enforcement of the ’91 Sewer Agreement.” It is unclear whether the trial court intended to include the Golf Club in its standing analysis. Nevertheless, on appeal BCSS argues that the Golf Club likewise lacks standing because, as it was an existing sewer customer before the execution of the 1991 agreement, the 1991 agreement did not apply to it. Whatever the merits of BCSS’s argument that the Associations may not enforce claims of the individual owners or that the 1991 agreement does not apply to the Golf Club, it is clear that these are not issues of “standing.”

The concept of standing implicates a court’s subject-matter jurisdiction. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.”). As Justice Lyons wrote in Hamm v. Norfolk Southern Ry., 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially): “Imprecision in labeling a party’s inability to proceed as a standing problem unnecessarily expands the universe of cases lacking in subject-matter jurisdiction.” In Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216 (Ala.2010), this Court noted:

“[Olur courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action. As the authors of Federal'Practice and Procedure explain:
“ ‘The question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing terins. The [United States] Supreme Court has stated succinctly that the cause-of-action question is not a question of standing.’
“13A Charles Alan Wright, Arthur K. Miller, and Edward H. Cooper, Federal Practice & Procedure § 3531 (2008) (noting, however, that the United States Supreme Court, itself, has on occasion ‘succumbed to the temptation to mingle these questions’). The authors go on to explain:
“ ‘Standing goes to thé existence of sufficient adversariness to satisfy both Article III case-or-controversy requirements and prudential concerns. In determining standing, the nature of the injury asserted is relevant to determine the existence of the required personal stake and concrete adverseness. ..-
“13A Federal Practice & ' Procedure § 3531.6 .... Cf. 13B Federal Practice & Procedure § 3531.10 (discussing citizen and taxpayer standing and explaining that ‘a plaintiff cannot rest on a showing that a statute is invalid, but must show “some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally” ’). •
• “In the present case, Wyeth appears to argue that the plaintiff, BCBSAL, lacks standing because, Wyeth says, 'BCBSAL’s allegations, even' if true, would not entitle it to a recovery. ...
“... The question whether the right asserted by BCBSAL is an enforceable one in the first place, i.e., whether BCBSAL has seized upon a legal theory our law accepts, is a cause-ofraction issue, not a standing issue.
“Nor do we see that the consideration of. the legal theory asserted by BCBSAL is outside the subject-matter jurisdiction of either the trial court or this Court. The courts of this State exist for the very purpose of performing such tasks as sorting out what constitutes a cognizable cause of action, what are the elements of a cause of action, and whether the allegations of a given complaint meet those elements. Such tasks lie at the core of the judicial function. See generally, e.g., Art. VI, § 139(a), Ala. Const. 1901 (vesting ‘the judicial power of the state’ in this Court and lower courts of the State); Art. VI, § 142, Ala. Const. 1901 (providing that the circuit courts of this State ‘shall exercise general jurisdiction in all cases except as may otherwise be provided by law’).... The issue Wyeth seeks to frame for this Court as one of ‘standing’ is, in reality, an issue as to the cognizability of the legal theory asserted by BCBSAL, not of BCBSAL’s standing to assert that theory or the subject-matter jurisdiction of this Court to consider it.”

42 So.3d at 1219-21 (some emphasis added; some emphasis omitted).

Recently, in Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31 (Ala.2013), this Court again examined the concept of standing and cautioned that the concept is generally relevant only in public-law cases. 159 So.3d at 44-45. In BAC we quoted Professor Hoffman:

“ ‘[T]he word “standing” unnecessarily invoked in the proposition can be erroneously equated with “real party in interest” or “failure to state a claim.” This simple, though doctrinally unjustified, extension could swallow up Rule 12(b)(6), Rule 17[, Ala. R. Civ. P.,] and the whole law of amendments.’ ”

159 So.3d at 46 (quoting Hoffman, The Malignant Mystique of “Standing,” 73 Ala. Law. 360, 362 (2012)).

In this case, the question whether the Associations may properly assert the claims of their individual members is, in fact, a real-party-in-interest inquiry. This question is distinct from the question of standing: It does not implicate the subject-matter jurisdiction of the trial court, and the trial court can address' the issue, if properly raised, by applying Rule 17(a), Ala. R. Civ. P. See Property at 2018 Rainbow Drive, 740 So.2d at 1027 (“‘“[T]he real party in interest principle is a means to identify the person who possesses the right sought to be enforced.”’” (quoting Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988), quoting in turn 6 C. Wright & A. Miller, Federal Practice & Procedure § 1542 (1971))). Likewise, if, as BCSS argues, the 1991 agreement does not govern sewer rates charged to the Golf Club, then the Golf Club simply will not be entitled to relief under that contract. As we concluded in BAC:

“If in the end the facts do not support the plaintiffs, or the law does not do so, so be it — but this does not mean the plaintiffs cannot come into court and allege, and attempt to prove, otherwise. If they fail in this endeavor, it is not that they have a ‘standing’ problem; it is, as Judge Pittman recognized in Sturdivant [v. BAC Home Servicing, LP, 159 So.3d 15 (Ala.Civ.App.2011),] that they have a ‘cause of action’ problem, or more precisely in these cases, a ‘failure to prove one’s cause of action’ problem. The trial court has subject-matter jurisdiction to ‘hear’ such ‘problems’ — and the cases in which they arise.” .

159 So.3d at 46. The Associations and the Golf Club in this case may have a “cause of action” problem; they may have a “real-party-in-interest” problem — we do not, of course, mean to suggest an answer. There is, howevér, no “standing” problem. Accordingly, the trial court erred in entering a summary judgment based on the Associations’ and the Golf Club’s purported lack of standing.

The trial court also stated as an alternate ground for the summary' judgment that the 1991 agreement was unenforceable because of fatal ambiguities and indefiniteness of material terms of the agreement. It held, first, that the scope of the property covered by the 1991 agreement was not sufficiently described and, second, that the meaning of the phrase requiring that the sewer rates charged be “competitive with charges made by others for similar services” was incapable of determination. Accordingly, the trial court concluded it could not enforce the 1991 agreement.

“ ‘To be enforceable, the [essential] terms of a contract must be sufficiently definite and certain, Brooks v. Hackney, 829 N.C. 166, 170, 404 S.E.2d 854, 857 (1991), and a contract that “%av[es] material portions open .for future agreement is nugatory and void for indefiniteness’ ” .... ’ Miller v. Rose, 188 N.C.App. 582, 587-88, 532 S.E.2d 228, 232 (2000) (quoting MCB Ltd. v. McGowan, 86 N.C.App. 607, 609, 359 S.E.2d 50, 51 (1987), quoting in turn Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974)). ‘A lack of definiteness in an agreement may concern the time of performance, the price to be paid, work to be done, property to be transferred, or miscellaneous stipulations in the agreement.’ 1 Richard A. Lord, Williston on Contracts § 4:21, at 644 (4th ed. 2007). ‘In particular, a reservation in either party of a future unbridled right to determine the nature of the performance ... has often caused a promise to be too indefinite for enforcement.’ Id. at 644-48 (emphasis added). See also Smith v. Chickamauga Cedar Co., 263 Ala. 245, 248-49, 82 So.2d 200, 202 (1955) (‘“A reservation to either party to a contract of an unlimited right to determine the nature and extent of his performance, renders his obligation too indefinite for legal enforcement.’”) (quoting 12 Am. Jur. Contracts § 66). Cf. Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir.1992) (an indefinite term may ‘render[ ] a contract void for lack of mutuality’ of obligation).
“ ‘Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.’ 17A Am. Jur. 2d Contracts § 183 (2004). ‘The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.’ Id. (emphasis added). See also Smith, 263 Ala. at 249, 82 So.2d at 203.”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1051 (Ala.2008).

“Generally speaking, our courts have not favored the destruction of contracts on the grounds that they are ambiguous, uncertain, or incomplete, see Alabama National Life Insurance Co. v. National Union Life Insurance Co., 275 Ala. 28, 151 So.2d 762 (1963); Smith v. Chickamauga Cedar Co., 263 Ala. 245, 82 So.2d 200 (1955), and ‘will, if feasible, so construe a contract as to carry into effect the reasonable intention of the [contracting] parties if that can be ascertained.’ McIntyre Lumber & Export Co. v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767 (1910). Nevertheless, a trial court should not attempt to enforce a contract whose terms are so indefinite, uncertain, and incomplete that the reasonable intentions of the contracting parties cannot be fairly and reasonably distilled from them. Alabama National Life Insurance Co. v. National Union Life Insurance Co., supra .... ”

Cook v. Brown, 393 So.2d 1016, 1018 (Ala. Civ.App.1981).

In this case, the 1991 agreement generally provided that Lakeview Realty would ensure that all lots sold in Lake View Estates would require purchase of sewer taps tied into SASS’s sewer lines. In return, SASS agreed to provide sewer service to Lake View Estates. The purpose of the 1991 agreement is clear. The developers of Lake View Estates needed sewer service to the subdivision, and SASS wanted to justify its construction of a sewer line to Lake View Estates by ensuring that all property owners in Lake View Estates would be SASS customers. The 1991 agreement did not set the specific rates to be charged customers in Lake View Estates, but it did provide that SASS would charge sewer-service rates to “all users within Lake View Estates that are competitive with charges made by others for similar services in the South Baldwin County vicinity.” It is this provision that the Associations and the Golf Club now seek to enforce.

With regard to the property covered by the 1991 agreement, the trial court held that the 1991 agreement was unenforceable because “[t]he property subject to the ’91 Sewer Agreement is not sufficiently described as there is no legal description stated therein.” We disagree that the lack of a metes-and-bounds legal description within the four corners of the 1991 agreement makes the terms of the 1991 agreement fatally uncertain. It is clear that the parties to the 1991 agreement understood its geographic scope: “Lake View Estates.” There appears to be no dispute regarding the boundaries of Lake View Estates, and, to the extent there is, the record contains the legal description of the development and also includes references to plats and other descriptive documents. The geographic scope of the 1991 agreement is, therefore, decidedly not indefinite.

The phrase at the center of the dispute, however, is more problematic. SASS agreed that it would charge sewer rates “competitive with charges made by others for similar services in the South Baldwin County vicinity.” The parties have cited no cases interpreting similar language, but the phrase is analogous to phrases such as “fair market value” or “reasonable price,” which have been uniformly held to be sufficiently definite for enforcement. See, e.g., H.C. Schmieding Produce Co. v. Cagle, 529 So.2d 243, 248 (Ala.1988) (“market price”); Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988) (“fair and equitable”); Northrup v. Hushard, 129 A.D.2d 1005, 514 N.Y.S.2d 304 (1987) (“reasonable market value price”); Coodwest Rubber Corp. v. Munoz, 170 Cal.App.3d 919, 921, 216 Cal.Rptr. 604, 605 (1985) (“fair market value”); Miller v. Bloomberg, 26 Ill.App.3d 18, 324 N.E.2d 207 (1975) (“then prevailing market price”); Mose Cohen & Sons, Inc. v. Kuhr, 13 O.O.2d 453, 85 Ohio L. Abs. 302, 171 N.E.2d 207, 213 (C.P.1959), decree aff'd by, 13 Ohio Op.2d 460, 171 N.E.2d 216 (Ct.App.1960) (“fair market value of said materials then prevailing in the Cincinnati market”); Edwards v. Tobin, 132 Or. 38, 284 P. 562 (1930) (“reasonable rental under the then existing conditions”); and 1 Joseph M. Perillo, Corbin on Contracts § 4.3, 572 (rev. ed. 1993) (“At times the agreement is explicit that a reasonable price will be agreed upon. In such cases all should agree that the agreement is sufficiently definite.”). We therefore find that the phrase at issue in this case is sufficiently definite and capable of judicial construction. Accordingly, the trial court erred in concluding that the 1991 agreement was unenforceable based on a fatal indefiniteness.

IV. Conclusion

In this case, whether the Associations or the Golf Club has the right to enforce the 1991 agreement is not a question of standing implicating the subject-matter jurisdiction of the Baldwin Circuit Court. Accordingly, the trial court erred in entering a summary judgment on the ground that the Associations and the Golf Club were without standing. Moreover, to the extent that the Associations and the Golf Club are the proper parties to pursue such an action, the terms of the 1991 agreement are not so indefinite as to render the 1991 agreement unenforceable. Therefore, we reverse the judgment of the Baldwin Circuit Court and remand the cause for further consideration consistent with this opinion. : ■

REVERSED AND REMANDED.

Bolin, Shaw, and Bryan, JJ., concur.

Murdock, J., concurs in the result.

      . “Lake View” is spelled in the record both as two words and as one word — "Lakeview.” We have made an effort to determine the correct spelling for the various entities and used it accordingly. We have not changed the spelling in the documents we quote from the record.

      . The issue whether this language effectively created a restrictive covenant is not before this Court.

      . The City of Foley is not a party to this appeal.

      . Nor do we express any- opinion as to whether the Associations, the Golf Club, or any individual homeowner in Lake View Estates has ,a right to enforce the 1991 agreement.