author: PARKER, Justice. MURDOCK, Justice

text:
    ONCE UPON A TIME, LLC v. CHAPPELLE PROPERTIES, LLC, and Sara Boehme.
    1141052.
    Supreme Court of Alabama.
    May 27, 2016.

      James C. Gray III and Anthony L. Watkins, Jr., of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellant.
    Jennifer Dewees Hale, Birmingham, for appellees.
   PARKER, Justice.

Pursuant to Rule 5, Ala. R.App. P., Once Upon a Time, LLC (“OUAT”), appeals by permission the decision of the Jefferson Circuit Court (“the circuit court”) denying OUAT’s motion seeking a summary judgment on the third-party complaint filed against it by Chappelle Properties, LLC (“Chappelle”). We reverse and remand.

Facts and Procedural History

The following undisputed facts are pertinent to our review of this case. On May 5, 2011, Chappelle owned a building located at 2900 18th Street South in Birmingham (“the building”). The building contained at least two commercial retail spaces.

On May 5, 2011, Chappelle and OUAT entered into a commercial lease agreement (“the agreement”), in which Chappelle agreed to lease one of the commercial retail spaces (“the OUAT retail space”) in the building to OUAT. The agreement contained the following indemnity clause (“the indemnity clause”):

“22.1 [OUAT] will indemnify and hold [Chappelle] and [Chappelle’s] agents free and harmless from all demands, claims and suits or expenses caused by any default committed hereunder on the part of [OUAT]. [OUAT] will further indemnify and save harmless [Chappelle] and [Chappelle’s] agents from any loss, cost, damage and/or expenses caused by injuries to persons or property while in, on or about [the OUAT retail space], not attributable to the willfully wrongful action of [Chap-pelle]. Any property stored in [the OUAT retail space] shall be at the sole risk of [OUAT].”

Deborah Anderson had been working for OUAT as a sales clerk since March 2011. On December 16, 2011, the OUAT retail space was flooded with contaminated water. Subsequently, certain items of OUAT’s inventory were moved from the OUAT retail space to a vacant commercial retail space (“the vacant retail space”) in the building. Chappelle owned the vacant retail space and had not leased the vacant retail space to OUAT as part of the agreement. Although Anderson was not working on the day of the incident, in the days following she counted inventory that had been moved to the vacant retail space.

The proximity of the OUAT retail space to the vacant retail space is pertinent to our review. Within the building, an interi- or hallway separated the OUAT retail space from the vacant retail space. The interior hallway was not directly accessible from the OUAT retail space; instead, to access the interior hallway from the OUAT retail space, a person would have to first access a room adjacent to the OUAT retail space, and then access the interior hallway from that room. No doorway within the building provided direct access from the OUAT retail space to the vacant retail space.

On December 20, 2013, Anderson filed a complaint alleging that she had suffered a bacterial infection caused by her handling the allegedly contaminated OUAT inventory stored in the vacant retail space following the flood of the OUAT retail space. In her complaint, Anderson asserted negligence, negligence per se, gross-negligence, and wantonness claims against Chappelle, Sara Boehme, and other unnamed parties. Subsequently, on July 9, 2014, Chappelle filed a third-party complaint against OUAT, Linda Flaherty, and Matthew Flaherty that sought, among other things, indemnification pursuant to the indemnity clause in the agreement.

On January 16, 2015, OUAT filed a summary-judgment motion on Chappelle’s July 9, 2014, third-party complaint. OUAT alleged that the indemnity clause in the agreement did not cover the claims asserted by Anderson in her complaint. On April 13, 2015, Chappelle filed a response to OUAT’s summary-judgment motion. On May 11, 2015, the circuit court denied OUAT’s summary-judgment motion.

On May 14, 2015, OUAT filed a motion styled “Third-Party Defendant Once Upon A Time, LLC’s Motion to Reconsider Or, in the Alternative, Motion for- Certification For Interlocutory Appeal.” On June 8, 2015, the circuit court held a hearing on OUAT’s May 14, 2015, motion. On June 23, 2015, the circuit court certified for permissive appeal under Rule 5, Ala. R.App. P., its interlocutory order denying OUAT’s summary-judgment motion, identifying the following as the controlling question of law:

“Whether the expression, ‘in, on or about [the OUAT retail space]’ as used in the [indemnity clause], should be interpreted to extend beyond the four walls of [the OUAT retail space] to include incidents occurring in [the vacant retail space].”

On June 29, 2015, pursuant to Rule 5, OUAT filed a petition for permission to appeal the circuit court’s order denying OUAT’s summary-judgment motion in this Court, which this Court granted.

Discussion

In conducting our de novo review of the question of law presented on a permissive appeal, “this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a)[, Ala. R.App. P.].” BE&K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003). Therefore, the only issue before this Court is the issue presented by the question of law identified by the circuit court in its Rule 5 certification.

The sole issue before this Court is the construction of the phrase “in, on or about [the OUAT retail space]” that appears in the indemnity clause. When construing an indemnity agreement, this Court has applied general rules of contract interpretation. See, e.g., Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722, 728 (Ala.2009); Doster Constr. Co. v. Marathon Elec. Contractors, Inc., 32 So.3d 1277, 1283 (Ala.2009); Extermitech, Inc. v. Glasscock, Inc., 951 So.2d 689, 695 (Ala. 2006); and Pyle v. Pizitz, 215 Ala. 398, 401, 110 So. 822, 824 (1926).

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity. See [Voyager Life Ins. Co. v.] Whitson, 703 So.2d [944,] 948 [ (Ala.1997) ]. Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms. See id. at 948-49; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala. 1995).”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000)(some citations omitted). Furthermore, as we noted in Pyle, an indemnity agreement “cannot be extended to losses or damages neither expressly within its terms, nor of such character that it may reasonably be inferred that the parties intended to covenant against them.” 215 Ala. at 401, 110 So. at 824; see also Doster Constr. Co., 32 So.3d at 1283 (Murdock, J., concurring in part and dissenting in part (quoting Pyle, supra)); Walker v. Bailey, 686 So.2d 304, 307 (Ala.Civ.App.1996)(quoting Pyle, supra).

The part of the indemnity clause the circuit court has asked this Court to construe is the phrase: “in, on or about the [the OUAT retail space].” That phrase is not defined in the agreement. “[W]here questions arise as to the meaning of an undefined word or phrase, the court should simply give the undefined word or phrase the same meaning that a person of ordinary intelligence would give it. Carpet Installation & Supplies of Glenco v. Alfa Mut. Ins. Co., 628 So.2d 560 (Ala.1993).” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 692 (Ala.2001). Furthermore, “ ‘[p]arties to a contract will not be imputed with using language that is meaningless or without effect.’” Black Warrior Minerals, Inc. v. Fay, 82 So.3d 650, 653 (Ala.2011)(quoting Black Diamond Dev., Inc. v. Thompson, 979 So.2d 47, 51 (Ala.2007)). Accordingly, in determining whether the phrase “in, on or about [the OUAT retail space]” extends coverage under the indemnity clause to incidents occurring beyond the four walls of the OUAT retail space to the vacant retail space, we must give the words “in,” “on,” and “about” their plain, ordinary, and natural meaning.

“In” has been defined, in part, as “contained or enclosed by, inside; within; as, in the room, in the envelope.” Webster’s New Universal Unabridged Dictionary 918 (2d ed.1983). “On” has been defined, in part, as:

“1. upon; in a position above, but in contact with, as the surface or upper part of a thing, and supported by; placed or lying in contact with; as, my book is on the table; the table stands on the floor; the house rests on its foundation .... 5. at or near; by; indicating situation, place, or position; as, a ship is on the coast; on each side stands an armed man.”

Webster’s New Universal Unabridged Dictionary 1249. “About” has been defined, in part, as: “1. around, on the exterior part or surface of; as, a girdle about the waist. 2. Near to in place, with the sense of circularity; close to; as, enemies about him on every hand .... 7. around, referring to compass or circumference; as, two yards about the stern.” Webster’s New Universal Unabridged Dictionary 5.

Pursuant to McCollough, supra, the question then becomes whether the ordinary, plain, and natural meaning of the words “in,” “on,” or “about,” as used in the indemnity clause, is ambiguous. “A term in a contract is ambiguous only if, when given the context, the term can reasonably be open to different interpretations by people of ordinary intelligence. See Safeway Insurance Co. [of Alabama v. Herrera, 912 So.2d 1140 (Ala.2005) ].” Lambert v. Coregis Ins. Co., 950 So.2d 1156, 1162 (Ala.2006) (emphasis added). In the present case, the circuit court has asked this Court whether the phrase “ ‘in, on or about [the OUAT retail space]’ as used in the [indemnity clause] should be interpreted to extend beyond the four walls of [the OUAT retail space] to include incidents occurring in [the vacant retail space].” (Emphasis added.) Given that context, the terms “in,” “on,” and “about” are not ambiguous.

As used in the indemnity clause, no ordinary, plain, and natural meaning of “in, on or about,” set out above, could be construed as encompassing injuries occurring within the vacant retail space. The OUAT retail space is separated from the vacant retail space by an interior hallway. The vacant retail space is not directly accessible from the OUAT retail space, and the vacant retail space constitutes a separate, commercial retail space that OUAT does not and has not leased. Thus, under the facts of this case, to construe the meaning of “in, on or about” to encompass incidents arising within an entirely different premises than the leased premises would not be to give that phrase or its terms “the same meaning that a person of ordinary intelligence would give it.” Twin City Fire Ins. Co., 817 So.2d at 692.

Furthermore, as we noted in Pyle, an indemnity agreement “cannot be extended to losses or damages neither expressly within its terms, nor of such character that it may reasonably be inferred that the parties intended to covenant against them.” 215 Ala. at 401, 110 So. at 824. This Court has stated that “ ‘[t]he true rule of interpretation of contracts is to make them speak the intention of the parties as at the time they were made.’” Russell v. Garrett, 208 Ala. 92, 95, 93 So. 711, 713 (1922)(quoting Mobile Cty. v. Linch, 198 Ala. 57, 60, 73 So. 423, 425 (1916)(emphasis added)); see also Cassels’ Mills v. Strater Bros. Grain Co., 166 Ala. 274, 283, 51 So. 969, 972 (1909).

In the present case, no definition of the phrase “in, on or about” would permit a reasonable inference that, at the time the agreement was signed, OUAT intended to indemnify Chappelle for injuries to persons or damage to property located in the vacant retail space. Although OUAT subsequently gained access to the vacant retail space to store its inventory temporarily, that fact is not relevant to answering the circuit court’s question concerning the construction of the words in the indemnity clause, which, as noted above, is the sole question before us.

“In the absence of fraud, or duress, the contract into which the parties may have entered, so far as it is not violative of law, must be enforced, according to their intentions, and its legal effect at the time it was made, though, in the presence of subsequent events, it is onerous and oppressive upon either, or either is, without the fault of the other, disappointed in realizing the benefits expected to result from it. The obligation of contracts can not be varied and moulded by courts, to meet the exigencies of subsequent events, or tempered to the pressure of the necessities of the parties.”

Mobile Bldg. & Loan Ass’n v. Robertson, 65 Ala. 382, 386 (1880).

Conclusion

Based on the foregoing, we answer the circuit court’s certified question in the negative; The phrase “in, on or about [the OUAT retail space]” as used in the indemnity clause should not be interpreted to include incidents occurring in the vacant retail space. Accordingly, the circuit court’s order denying OUAT’s summary-judgment motion is reversed, and this case is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

STUART, BOLIN, MAIN, and WISE, JJ., concur.

MURDOCK, SHAW, and BRYAN, JJ., dissent.

MURDOCK, Justice

(dissenting).

I am compelled to dissent from the conclusion reached by the main opinion in this case because I believe that: (1) this Court, as an appellate court, inappropriately engages in a weighing and resolution of factual issues; and (2) the case is not appropriate for Rule 5, Ala. R.App. P., review. I address each issue in turn.

A. This Court’s Resolution of Factual Issues

As to the merits of this Court’s decision today, I submit there is a fundamental problem with its analysis that is encompassed within the statement in the main opinion that “[g]iven th[e] context, the terms ‘in,’ ‘on,’ and ‘about’ [as used in the indemnity clause] are not ambiguous.” 209 So.3d at 1098. I submit that the opposite is the case, a conclusion supported by, inter alia, reasoning employed in the main opinion itself.

1. The Word “About

The pertinent portion of the lease agreement between Once Upon a Time, LLC (“OUAT”), and Chappelle Properties, LLC (“Chappelle”), provides that “[OUAT] will ... indemnify and save harmless [Chap-pelle] and [Chappelle’s] agents from any loss, cost, damage and/or expenses caused by injuries to persons or property while in, on or about the Leased Premises, not attributable to the willfully wrongful action of [Chappelle].” (Emphasis added.) The main opinion purports to arrive at the “plain, ordinary, and natural meaning” of the above-emphasized phrase by providing dictionary definitions for each one of the individual terms — “in,” on” and “about”— separately. 209 So.3d at 1098.

If those three words are to be construed separately, rather than together as a cohesive phrase or a legal term of art (see discussion, infra), then without question the key word for purposes of this case is “about.” The main opinion offers three definitions of that word:

“‘About’ has been defined, in part, as: T. around, on the exterior part or surface of; as, a girdle about the waist. 2. Near to in place, with the sense of circularity; close to; as, enemies about him on every hand .... 7. around, referring to compass or circumference; as, two yards about the stern.’ Webster’s New Universal Unabridged Dictionary 5 [ (2d ed.1983) ].”

209 So.3d at 1098.

Those three definitions, particularly the second, would appear to be helpful in the present inquiry. In point of fact, however, they all pose a problem for the analysis presented in the main opinion, which concedes that “[the proximity of the OUAT retail space to the vacant retail space is pertinent to our review.” 209 So.3d at 1096 (emphasis added). To one degree or another, all three definitions tend to support the notion that the indemnity clause would apply to incidents occurring “near to” or “around” the leased premises, hot just to incidents occurring precisely within the boundary lines of the leasehold. Even clearer in this regard, and more attuned to the manner in which such a word would be used in conveyances of interests in real property and other legal documents, is Black’s Law Dictionary, which defined “about,” in part, as meaning “[n]ear by, close at hand, convenient of access.” Black’s Law Dictionary 8 (6th ed.1990).

Although the main opinion offers the above-quoted dictionary definition of “about,” it does not discuss its implications for the present case. Instead, the result reached in the opinion appears to be based, at least implicitly, on the other two terms — “in” and “on.” But if the parties had simply wanted to describe the inside of the leased retail space up to its precise boundary lines, they could have just used the word “in,” or even “in or on,” before the term “Leased Premises.” Instead, they chose to employ the phrase “in, on or about the Leased Premises.” In so doing, they logically intended something different than if they had limited themselves to “in” or “in or on.”

For these reasons alone, I cannot agree that the term “about” has the plain and ordinary — or unambiguous — meaning it effectively is given by the main opinion. To the contrary, if we are to posit, as does the main opinion, that this term is “susceptible [of] only one reasonable meaning” and thus not “ambiguous,” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000), then, based on the aforesaid definitions, I contend that the more compelling choice clearly would be one that would not limit the inquiry to the precise boundary lines of the leasehold space but would instead require inclusion of some area “near” or “around” those premises.

That said, and particularly in the context of the case we have before us, I cannot conclude that the separate word “about” is in fact unambiguous — not “susceptible of more than one reasonable meaning” — so as to allow us to decide its meaning as a matter of law. Another part of the Black’s Law definition of “about” states: “In connection with distance or locality, the term is of relative significance, varying with the circumstances.” Black’s Law Dictionary 8 (6th ed.1990) (emphasis added). In other words, by its nature, the meaning of the term “about,” when used to describe physical proximity, is dependent on the factual circumstances. As such, it is a word that literally “by definition” can have more than one meaning depending on the factual context in which it is used - (and which concomitantly raises factual questions that must be decided by the fact-finder, see Part B below).

2. The Phrase “In, On or About ”

That said, I believe we err by focusing on the definition of the single word “about” rather than the phrase “in, on or about the Leased Premises” as a whole. In fact, phrases that employ the term “about” in the manner stated are legal terms of art. As one court has noted:

“[T]he phrase ‘in or about’ is one of art. Defined as ‘a phrase having reference to an area and expressing the idea of physical proximity’ (Ballantine’s Law Dictionary, ([3d ed.], p. 631), it frequently is used synonymously to mean ‘around’ or ‘on the outside of’ (Thompson v. Banks, 43 N.H. 540, 541 [ (1862) ]). It signifies locality.”

Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 159, 366 N.E.2d 263, 266, 397 N.Y.S.2d 602, 606 (1977).

Thus, when some variation of this phrase is used to describe a premises, courts usually have determined that it refers not just to the premises itself, but also to areas around the premises. This is true even when it is coupled with the word “in” conjunctively rather than disjunctively, as in the present case. See, e.g., Stovall v. Pickering Corp., No. CV 591-267 (S.D.Ga. Apr. 23, 1992) (not selected for publication in F.Supp.) (concluding that the phrase “in and about the Demised Premises” in an indemnity provision of a lease encompassed activity “not only on the actual theater property, but also in the parking lot directly adjacent to the theater”); Hogeland, 42 N.Y.2d at 157, 159, 366 N.E.2d at 265, 266, 397 N.Y.S.2d at 604, 606 (holding that a lease indemnity clause that provided that the lessor would be indemnified for “ ‘any accident ... whatsoever ... to any person ... in or about the Tenant’s demised premises’” “must be held to include the sidewalk area where the accident happened”); Carlton v. Hoskins, 134 Ga.App. 558, 559, 215 S.E.2d 321, 322 (1975) (stating that the phrase “in and about the premises” in a lease “could be construed to refer to an area near or adjacent to the rented apartment” and thus “it would be a jury question as to what area of the complex was to be included within such lease clause”); William A. Doe Co. v. City of Boston, 262 Mass. 458, 462, 160 N.E. 262, 263 (1928) (explaining that “[t]he renovations, repairs and changes which the lessor was authorized to make were not confined to the stalls and cellars leased, but could be made ‘in and about the leased premises.’ We construe the word ‘about’ as meaning in other parts of the building, and not as limiting the renovations and changes to parts of the building leased to adjoining tenants of the lessee.”); and Wise v. Central Dairy Co., 121 Kan. 258, 246 P. 501, 503 (1926) (holding that a workmen’s compensation statute that provided for recovery for injuries received “in, on, or about the factory” allowed for recovery where “the car was on a public street 200 feet from defendant’s factory, when the injury was received” because the injury was “was near the factory”).

Two early Alabama cases are in accord. Easterling v. State, 30 Ala. 46 (1857), although not a case involving a leased premises, is instructive. Easterling concerned a criminal statute that “declare[d] it unlawful for any person, without a license, to sell vinous or spirituous liquor, in any quantity, ‘if the same is drank on or about the premises.’ ” 30 Ala. at 48. The Court reasoned that

“[t]he phrase, ‘about the premises,’ was used to embrace places over which the unlicensed seller of such liquor had no legal right to exercise authority or control, but which were yet so near to his premises, and so situated in relation thereto, that to permit the liquor sold by him to be drank at them would produce the very evil in kind, though not in degree, which the prohibition against drinking it on his premises was intended to prevent.”

Id. The Court concluded that where the buyer had taken the liquor “to the front of the store of another on the opposite side of the street, and out of the view of the seller’s house, and about fifty feet therefrom, it is not a conclusion of law from these facts, without more, that the place where the liquor was drank was either the premises of the seller, or about his premises, within the meaning of’ the statute. 30 Ala. at 49. Consequently, the Court reversed the judgment of the trial court and remanded the cause because it was “the exclusive province of the jury” to determine whether a violation of the statute had occurred under such circumstances. Id. at 49.

By the same token, in Brown v. State, 31 Ala. 353, 356 (1858), a case involving the same statute, the Court concluded that “[i]t certainly requires no argument to show, that a place in a public highway, within ten, fifteen or twenty steps of the defendant’s store in front, and in full view of it, comes within the purview of the phrase, ‘about his premises.’” Easterling and Brown illustrate both the potential ambiguity in the phrase “about the premises” and the fact that the phrase commonly is understood to refer to something beyond the exact boundaries of the premises itself.

Thus, interpreting the phrase “in, on or about the Leased Premises” according to at least one, if not the most common, meaning ascribed to it as a legal term of art would require this Court to hold that OUAT assumed an obligation to indemnify Chappelle not just for injuries sustained within the exact boundaries of the leased retail space, but also for some injuries that occur around or near that space, depending on the circumstances.

3. Invading the Jury’s Province

Just as the individual word “about” may have different meanings depending on the context in which it is used, so too can phrases that use that word. In Thompson v. Banks, 43 N.H. 540 (1862), a plaintiff who obtained a mill privilege from the defendant contended that the lease that gave the plaintiff the right “of laying logs, board, and other lumber on or about said privilege” allowed him, to place logs and lumber on the defendant’s property outside the privilege. 43 N.H. at 540. “The whole controversy thus turn[ed] upon the construction to be given to the words ‘on or about’ in the covenant.” Id. Although the court ruled against the plaintiff, in so doing it provided instructive reasoning as to the importance of the factual context in assessing the meaning of such contractual provisions in any given case:

“Though the word ‘about’ may frequently have the meaning of around on the outside of, without the limits of, & a, yet it as frequently, in common conversation, means through, or over, in various directions, or, in the various parts of the whole promiscuously. To travel about the country means to go from place to place in the country, and not out of it. A man about town, is not a man out of town. So if a man should scatter or lay his lumber all about his mill-yard, we should éxpect to find it somewhere in the limits of the yard, and not that it would all be outside of them. To ascertain the meaning of the word about, it seems necessary to consider the words used directly in connection with it, and also the subject matter in relation to which they aré used.’’

43 N.H. at 541 (emphasis added).

What Thompson illustrates, especially in conjunction with the previously cited cases, is that the phrase “in, on or about the Leased Premises” is susceptible of more than one reasonable meaning and that that ambiguity must be clarified through factual context. That is, in fact, what the Court has attempted to do in this case without formally acknowledging it.

As noted at the outset, the main opinion concludes that “[g]iven th[e] context, the terms ‘in,’ ‘on,’ and ‘about’ are not ambiguous.” 209 So.3d at 1098 (emphasis added). It then explains the “context,” that is, the contextual facts, on which it relies: “The OUAT retail space is separated from the vacant retail space by an interior hallway. The vacant retail space is not directly accessible from the OUAT retail space, and the vacant retail space constitutes a separate, commercial retail space that OUAT does not and has not leased.” 209 So.3d at 1099. Based on those parol facts, the main opinion concludes that “no ordinary, plain, and natural meaning” of the phrase “in, on or about” “could be construed as encompassing injuries occurring within the vacant retail space.” 209 So.3d at 1099.

As discussed, the main opinion in its analysis does not use the most commonly understood “ordinary meaning” of the word “about” when it is used to refer to premises, nor does it pursue the above-discussed legal-term-of-art understanding of the phrase “in, on or about.” What the main opinion does do, however, is rely upon the above-listed contextual facts— facts outside the four corners of the lease — to ascertain the meaning of terms it claims are unambiguous. But if one must go beyond the four corners of a contract to find evidence of the meaning of its terms, then by definition those contract terms are ambiguous. And conversely, if the terms of a contract are in fact unambiguous (as the main opinion concludes is the case here), fundamental tenets of contract construction prevent resort to such collateral facts. See, e.g., Marriott Int'l Inc. v. deCelle, 722 So.2d 760, 762 (Ala.1998) (explaining that “[t]he general rule of contract law” is that, “if a written contract exists, the rights of the parties are controlled by that contract and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms” but that when a contract is ambiguous parol or extrinsic evidence will be allowed to clarify its meaning); J.I.T. Servs., Inc. v. Temic Telefunken-RF, Eng’g, L.L.C., 903 So.2d 852, 856-57 (Ala.Civ.App.2004) (“In Port City Construction Co. v. Henderson, 48 Ala. App. 639, 266 So.2d 896 (1972) (relied upon in Parr v. Godwin[, 463 So.2d 129, 132 (Ala.1984) ]), the [appellate court] noted that when a written contract is ‘ambiguous, incomplete or uncertain as to all of the intentions of the parties, the court may consider extrinsic parol evidence as to surrounding matters and circumstances ... in order to determine the actual intent of the parties to the agreement.’ 48 Ala.App. at 642-43, 266 So.2d at 899.”).

In accord with the foregoing precepts, this Court stated in Voyager Life Insurance Co. v. Whitson, 703 So.2d 944, 949 (Ala.1997) that, “[i]f one. must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.” (Emphasis added.) The analysis in the main opinion attempts to construe the ambiguity presented by the phrase “in, on or about the Leased Premises” by examining the surrounding circumstances without acknowledging the existence of the ambiguity.

In proceeding as it does, the main opinion inherently picks and chooses from among the available contextual facts. Contextual facts to which the main opinion does give weight are, as already noted, listed above. Conversely, for example, the main opinion contends that the fact that “OUAT subsequently gained access to the vacant retail space to store its inventory temporarily ... is not relevant to answering the circuit court’s question concerning the construction of the words in the indemnity clause.” 209 So.3d at 1099 (emphasis added). And consider as well the following facts not selected or given weight by the Court’s analysis today: At the time of the events for which indemnity is sought, the tenant (OUAT) was using the vacant retail space pursuant to an agreement between the landlord and the tenant that the tenant would use the space; the tenant had need of the space in the first place only because there was a malfunction in the HVAC system, the sound functioning of which was the responsibility of the landlord, which had “flooded” part of the leased premises, including a closet space apparently being used by the tenant for storage; those events prevented the tenant from realizing the full use and enjoyment of the leased premises; upon surveying the aforesaid circumstances, the landlord offered the tenant the use of the vacant retail space; the tenant accepted the landlord’s offer and did in fact use the vacant retail space in substitution for part of the leased space; that use was an accommodation by the parties to allow the tenant to have the use and enjoyment of the leased premises for which it had bargained in the same lease agreement that contained the indemnification clause; the space at issue here was vacant and is only a matter of feet from the space leased by the tenant; it was foreseeable that a tenant occupying the space immediately next to and almost contiguous with this vacant space, or one of that tenant’s employees, might at some point enter upon this space for some reason, and that this likelihood existed precisely because the lease arrangement itself put the tenant and its employees in the immediate vicinity of and with physical access to that space; the injured employee of the tenant accessed the space at the tenant’s instruction and for the tenant’s benefit consistent with the tenant’s use of the leased premises; and the purpose of the indemnity clause was to protect the landlord from liabilities to which it was exposed because of the existence of the lease arrangement. Surely, it is at least reasonable to consider that the parties might have intended the indemnity clause to cover an incident occurring in a vacant area just feet away from the premises leased by OUAT, especially where, as here, the area is being used by OUAT pursuant to an agreement of the parties intended to ensure to OUAT the full enjoyment of its leasehold.

By rejecting the idea that the terminology in the indemnity clause is at least ambiguous, and instead deciding upon a meaning for this terminology based upon its selection from among the available contextual facts which ones to give weight and how much weight to give them, the main opinion operates outside the well established, three-part process by which courts determine the meaning of contracts and usurps a part of that process reserved to the finder of fact. This Court previously has explained this three-part process as follows:

“When a trial court is [faced] with a contract issue, it is important for the trial court to determine as soon as practicable the ‘threshold issue’ whether the contract is ambiguous. If the trial court determines that there is no ambiguity, it must ‘ “determine the force and effect of the terms of the contract as a matter of law.”’ Cherokee Farms, Inc. [v. Fireman’s Fund Ins. Co.], 526 So.2d [871], 873 [ (Ala.1988) ], quoting Wigington v. Hill-Soberg Co., 396 So.2d 97, 98 (Ala. 1981). However, if the trial court finds the contract to be ambiguous, it ‘must employ established, mies of contract eonstmction to resolve the ambiguity.’ Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). If the application of such mies is not sufficient to resolve the ambiguity, factual issues arise:
“‘If one must go beyond the four corners of the agreement- in construing an ambiguous agreement, the- surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling' in resolving the ambiguity.’
“Id. at 949. Where factual issues arise, the resolution of the ambiguity becomes a task for the jury. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853 (Ala.1991).”

Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 404-05 (Ala.2001) (emphasis added).

Thus, although the present case entails resolution of a contractual ambiguity by resort to parol facts and circumstances; this Court fails to leave resolution of this ambiguity to the jury. In my view, the Court has aggregated to itself determinations that, at best, are within the province of the jury because the meaning of the pertinent lease provision cannot be divined by applying legal rules of construction to the four corners of the document.

B. The Misuse of Rule 5

That the issue here ultimately involves deciding and weighing collateral or parol facts that bear on a decision as to the ultimate “fact” of what the parties agreed to is one of several reasons why this case is not appropriate for a Rule 5 permissive appeal in the first place, Rule 5 allows interlocutory appeal only of “controlling question[s] of law as to which there is substantial ground for difference of opinion.” Rule 5(a), Ala. R.App. P. (emphasis added).

This restriction first means that Rule 5 is intended only for issues that involve pure questions of law. Rule 5 does not apply in situations that involve the application of law to facts or factual issues that are so one-sided that it can be said that “as a matter of law” those issues can be decided only one way. “Rule 5 is not a vehicle by which to obtain review of ‘significant and unresolved factual issues.’ ” Gowens v. Tys. S., 948 So.2d 513, 530 (Ala.2006) (quoting Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 104 (Ala.2003) (emphasis added in Gowens)). See also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.2004) (stating that permissive appeals are “intended, and should be reserved, for situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts” (emphasis added)); United Air Lines, Inc. v. Gregory, 716 F.Supp.2d 79, 92 (D.Mass. 2010) (noting that, in an interlocutory appeal, “the issue must relate to the actual legal principle itself, not the application of that principle to a particular set of facts ” (emphasis added)).

Second, the limitation in Rule 5 to issues “as to which there is substantial ground for difference of opinion” is a limitation to questions of law that either have never been decided or are the subject of a split of authority or a conflict in our precedents. Otherwise, this Court is- merely performing the trial court’s function of researching and deciding legal issues, a task for which the trial court is well equipped and to which it equally is assigned. See, e.g., Couch v. Telescope Inc., 611 F.3d 629, 638 (9th Cir.2010) (noting that “[c]ourts traditionally will find that a substantial ground for difference of opinion exists where ‘. novel and difficult questions of first impression are presented’ ” (quoting 3 Federal Procedure § 3:212 (Lawyers ed.2010))). The “difference of opinion” must arise, not from the parties’ disagreement as to an issue, but rather from the fact that either our Court has not addressed an issue or there appears to be an actual conflict in our existing precedent on the issue. See, e.g., United Air Lines, Inc., 716 F.Supp.2d at 92 (observing that “[s]ubstantial grounds for a difference of opinion arise when an issue involves ‘one or more difficult and pivotal questions of law not settled by controlling authority ’ ’’(quoting Philip Morris Inc. v. Harshbarger, 957 F.Supp. 327, 330 (D.Mass.1997) (last emphasis added))); Oyster v. Johns-Manville Corp., 568 F.Supp. 83, 86 (E.D.Pa.1983) (stating that “a ‘substantial ground for difference of opinion’ may be demonstrated by adducing ‘conflicting and contradictory opinions’ of courts which have ruled on the issue” (quoting Dorward v. Consolidated Rail Corp., 505 F.Supp. 58, 59 (E.D,Pa,1980))); Singh v. Daimler-Benz, AG, 800 F.Supp. 260, 263 (E.D.Pa. 1992), aff'd, 9 F.3d 303 (3d Cir.1993) (observing that the plaintiffs’ citation of the sole district court decision supporting their position in contrast to all the courts that had ruled otherwise did not create “an issue on which there is a substantial ground for difference of opinion”); and Clark v. United States, 481 F.Supp. 1086, 1100 (S.D.N.Y.1979) (concluding that “there is no ground for difference of opinion as to” the issue on which a defendant sought a permissive appeal because the only case the defendant had cited in his favor had been “undermin[ed]” by later circuit precedent (repudiated on other grounds by Barbera v. Smith, 654 F.Supp. 386, 389 (S.D.N.Y.1987))).

This appeal does not present a pure question of law. Instead, we have before us ultimately a factual question as to exactly what it is that the parties agreed to. To the extent that principles of law must be invoked in answering that question, those principles are, in this case, basic rules of contract construction that, as legal precepts, could not be more well established and lacking of any ground for difference of opinion. At best, then, we are being asked to apply these basic, undisputed principles of law to the peculiar facts of this case. That is not the proper office of a Rule 5 permissive appeal.

C. Conclusion

In sum, we now involve ourselves in selecting and weighing facts from outside the four corners of a contract on our way to deciding the ultimate “fact” of what the parties meant by certain contract language that, in my view, is at least ambiguous and, in any event, is not resolvable merely by the application of rales of contract construction, but depends for resolution upon parol circumstances that by right in this case should be considered by a jury.

I believe this is a classic case where this Court should allow the trial court to do its job and allow the process of litigation to work itself to a natural conclusion. Were we to do so, the case might in fact (whether because of a settlement or because of a judgment that neither side finds sufficient reason to appeal) never be in need of this Court’s attention. Indeed, the strictures of Rule 5 are intended in a case like this to give us no option but to allow the litigation process to work without our involvement. Rule 5 is not a mechanism to relieve trial courts of their responsibilities to decide questions of law (which is their job just as it is ours), to decide facts, or to apply the law to those facts. I believe we unnecessarily short-circuit the appropriate judicial process by deciding this permissive appeal.

For the foregoing reasons, I respectfully dissent.

BRYAN, J., concurs.

      . At the time of the complaint, Sara Boehme managed the commercial retail space on behalf of Chappelle.

      . At the time of the third-party complaint, Linda Flaherty and Matthew Flaherty were the principal owners of OUAT.

      . In his dissent, Justice Murdock states that this Court has invaded the province of the jury by engaging in fact-finding to reach our conclusion, Justice Murdock believes that “the present case entails resolution of á contractual ambiguity by resort to parol facts and circumstances.” 209 So.3d at 1106 (Murdock, J., dissenting). We disagree with Justice Murdock's assessment of this case. The question certified by the circuit court is whether the phrase " ‘in, on or about [the OUAT retail space]’ as used in the [indemnity clause] should be interpreted to extend beyond the four walls of [the OUAT retail space] to include incidents occurring in [the vacant retail space].” (Emphasis added.) The question before this Court is whether the indemnity clause should be interpreted to extend coverage into an entirely separate retail space; we need not rely upon "parol facts” in answering this legal question certified by the circuit court,

      . In his dissent, Justice Murdock suggests that we have interpreted the phrase “in, on or about” in such a way that would limit the indemnity. clause from applying to incidents occurring outside .of the four walls of the OUAT retail space. That is not the case; we recognize that the indemnity clause may extend to include incidents occurring “about” the OUAT retail space. However, the question certified by the circuit court was not whether the indemnity clause should be interpreted to include incidents occurring simply outside the four walls of the OUAT retail space. Instead, the circuit court asked whether the indemnity clause "should be interpreted to extend beyond the four walls of [the OUAT retail space] to include incidents occurring in [the vacant retail space].” (Emphasis added.)

      . The definition of the word "about” was dropped from the seventh and subsequent editions of Black's Law Dictionary.

      . The main opinion defines " ‘[i]n' ... as 'contained or enclosed by, inside; within; as, in the room, in the envelope.' Webster’s New Universal Unabridged Dictionary 918 (2d ed.1983).” 209 So.3d at 1098. It defines "on” as;
      '1. upon; in a position above, but in contact with ... and supported by; placed or lying in contact with; as, my book is on the table; the table stands on the floor; the house rests on its foundation .... 5. at or near; by; indicating situation, place, or position; as, a ship is on the coast; on each side stands an armed man.'

        “Webster’s New Universal Unabridged Dictionary 1249 [ (2d ed.1983) ]."
      209 So.3d at 1098.

      . Black's Law Dictionary defines a "mill privilege” as "[t]he right of a mill-site owner to construct a mill and to use power from a stream to operate it, with due regard to the rights of other owners along the stream's path.” Black's Law Dictionary 1144 (10th ed.2014).

      . Over the course of two footnotes, the main opinion suggests that my analysis of the word ‘'about” as used in'the indemnity clause is inapposite because, according to the main opinion, the question presented in this case is limited to "whether the indemnity clause ‘should be interpreted to extend beyond the four walls of [the OUAT retail space] to include incidents occurring in [the vacant retail space ].’ " 209 So.3d at 1098 n, 3 and 1099 n, 4. It is the language of the indemnity clause, however, that governs whether any given incident in any given location is or is not to be the subject of indemnification. That clause includes the prepositional phrase "in, on or about,” not the phrase "in or on.” The proper result in this case is governed by what the parties intended by this phrase — including, as it does, the term "about.” I see nothing in this language that necessarily excludes a particular location merely because it is within a "separate retail space,” especially where, as here, that "separate” space is only a few feet removed from the leased space, is easily accessed by employees of the lessee, and, in fact,, was accessed by.those employees with the permission of the landlord under exigent circumstances for purposes of allowing the lessee to have the bargained-for benefit of the leased space.


source: Caselaw Access Project

author: BRYAN, Justice. MURDOCK, Justice

license: Public Domain

text:
    REGIONS BANK v. Mary N. RICE.
    1141154.
    Supreme Court of Alabama.
    May 27, 2016.

      Jennifer W. Pickett of Smith, Spires & Peddy, P.C., Birmingham for appellant.
    Submitted on appellant’s brief only.
   BRYAN, Justice.

Regions Bank (“Regions”) appeals from an order of the Madison Circuit Court denying its motion to compel arbitration. We reverse and remand.

In October 2011, Mary N. Rice opened both a savings account and a checking account with Regions. Rice opened each account by signing a one-page signature card indicating that she was agreeing to certain terms. Among other things, the signature cards provide: “By signing below, I ... (a) agree to be bound by the terms of [Regions’] Deposit Agreement ... [and] (b) acknowledge receipt of a copy of the applicable Deposit Agreement.” The deposit agreement referenced by the signature cards contains a broad arbitration provision giving either party the option of arbitrating “any controversy, claim, counterclaim, dispute or disagreement” between them. The arbitration provision also contains a provision (“the delegation provision”) requiring an arbitrator to decide any threshold dispute regarding the arbitrability of a particular controversy-

In March 2015, Rice sued Regions, alleging that Regions was liable for a fall she suffered on Regions’ premises. Regions filed a motion to compel arbitration, citing the arbitration provision in the deposit agreement. Rice opposed the motion to compel arbitration, arguing that her claim is not arbitrable. Specifically, Rice argued that her claim is beyond the scope of the arbitration provision. She also argued that the arbitration provision is invalid, void, or unenforceable because, she said, she did not have an opportunity to read the arbitration provision before she signed the signature cards, the signature cards “included” the arbitration provision by reference rather than including it in the document she signed, and the arbitration provision is unconscionable. In response, Regions argued that, under the delegation provision, an arbitrator must decide the threshold issues of arbitrability raised by Rice in opposing arbitration. Regions also addressed the merits of Rice’s argument regarding arbitrability, arguing that her claim against it is arbitrable.

The trial court denied the motion to compel arbitration, without stating a reason. Regions appealed pursuant to Rule 4(d), Ala. R.App. P., which authorizes an appeal from an order either granting or denying a motion to compel arbitration. Rice did not file a brief on appeal. We review de novo the denial of the motion to compel arbitration. Bennett v. Skinner, 98 So.3d 1140, 1142 (Ala.2012).

Before the trial court, the parties disputed the validity and scope of the arbitration provision; initially, we must determine the “gateway” issue of “who decides” those arbitrability issues — the trial court or the arbitrator. This Court has explained the general rule regarding such gateway issues of arbitrability:

“ ‘In ruling on a motion to stay judicial proceedings following a request for arbitration, the court is required to decide matters of “substantive arbi-trability,” that is, (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the specific dispute falls within the scope of that agreement. Dean Witter [Reynolds, Inc. v. McDonald], 758 So.2d [539,] 542 [ (Ala.1999) ]. “Procedural arbitrability,” on the other hand, involves questions that grow out of the dispute and bear on its final disposition, e,g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (“ ‘ “procedural” questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide’ ”); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)(holding that an arbitrator should decide whether the steps of a grievance procedure were completed, where those steps were prerequisites to arbitration).’
“Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604-05 (Ala.2009). To clarify, we note that the United States Supreme Court has referred to questions of ‘substantive arbi-trability” as simply ‘questions of arbi-trability” and questions of ‘procedural arbitrability’ as ‘procedural questions.’ Howsam, 537 U.S. at 83.”

Anderton v. Practice-Monroeville, P.C., 164 So.3d 1094, 1101 (Ala.2014).

Thus, disputes regarding the validity and scope of an arbitration provision (like the dispute here) are issues of substantive arbitrability, and generally such issues are decided by a court. However, there is an important exception to that general rule. Gateway questions of substantive arbitrability may be delegated to the arbitrator if the delegation is clear and unmistakable. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (citing AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); see, e.g., Anderton, 164 So.3d at 1100-02 (applying such a delegation provision); and Federal Ins. Co. v. Reedstrom, 197 So.3d 971, 972 (Ala.2015) (same). The United States Supreme Court has long recognized that parties may agree to such a delegation provision, which is severable from the underlying agreement to arbitrate. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69, 78-79, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). “[Parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Rent-A-Center, 561 U.S. at 68-69. Succinctly stated, questions of substantive arbitrability are decided by a court unless the parties clearly and unmistakably provide otherwise.

If the parties have clearly and unmistakably delegated questions of substantive arbitrability to the arbitrator, the court’s role is narrow. If a party challenges the validity of the delegation provision itself, the court “must consider the challenge before ordering compliance with” the delegation provision. Rent-A-Center, 561 U.S. at 71. However, “unless [a party] challenged the delegation provision specifically, [the court] must treat it as valid ... and must enforce it ... leaving any challenge to the validity of the [arbitration] Agreement as a whole for the arbitrator.” 561 U.S. at 72. Because a delegation provision is severable from the other contract provisions, it will be enforced unless it is specifically challenged. 561 U.S. at 71-72 (enforcing a delegation provision when there was no specific challenge to that provision but a challenge to the entire arbitration provision on the ground of unconscionability).

In this case, the delegation provision clearly and unmistakably delegates questions of substantive arbitrability to the arbitrator. The delegation provision states: “Any dispute regarding whether a particular controversy is subject to arbitration, including any claim of unconscion-ability and any dispute over the enforceability, scope, reach or validity of this agreement to arbitrate disputes or of this entire Agreement, shall be decided by the arbitrator(s).” Regions invoked the delegation provision after Rice argued that her claim is not arbitrable. Although Rice challenged the validity of the arbitration provision as a whole, she has not specifically challenged the delegation provision. Because Rice has not “challenged the delegation provision specifically, [the court] must treat it as valid ... and must enforce it ... leaving any challenge to the validity of the [arbitration provision] as a whole for the arbitrator.” Rent-A-Center, 561 U.S. at 72. Pursuant to the delegation' provision, the arbitrator must resolve the disputed issue whether Rice’s claim is arbi-trable under the arbitration provision.

Accordingly, the trial court erred in denying the motion to compel arbitration. We therefore reverse the order and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent. See Federal Ins. Co. v. Reedstrom, 197 So.3d 971, 972 (Ala. 2015) (Murdock, J., dissenting); Anderton v. Practice-Monroeville, P.C., 164 So.3d 1094, 1103 (Ala.2014) (Murdock, J., dissenting).


author: MAIN, Justice. MURDOCK, Justice

text:
    EX PARTE CVS PHARMACY, L.L.C. (In re Mildred Scott v. CVS Pharmacy, L.L.C.).
    1150355.
    Supreme Court of Alabama.
    May 27, 2016.

      Joseph H. Driver, Glenn E. Ireland, and Virginia F. Gambacurta of Carr Allison, Birmingham, for petitioner.
    Norman Hurst, Montgomery for respondent.
   MAIN, Justice.

CVS Pharmacy, L.L.C. (“CVS”), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss the complaint of the plaintiff, Mildred Scott, as untimely filed. We grant the petition and issue the writ.

Facts and Procedural History

On August 26, 2015, Scott filed a complaint asserting negligence and wantonness claims against CVS. According to the complaint, while shopping in a CVS store on September 2, 2013, Scott was injured when she slipped and fell on an unknown substance near the entrance of the store. Scott did not pay a filing fee when she filed the complaint. Along with the complaint, however, Scott filed an “Affidavit of Substantial Hardship,” indicating that she was unable to pay the filing fee. See § 12-19-70, Ala.Code 1975. On September 23, 2015, the circuit court entered an order purporting to declare Scott indigent and to waive the filing fee. On that same day, the summons against CVS was issued, and CVS was served with the summons and complaint on September 28, 2015. On October 9, 2015, the circuit court entered an order apparently reversing its earlier order and purporting to deny Scott’s affidavit of substantial hardship. On October 14, 2015, Scott paid the filing fee. On October 15, 2015, CVS filed a motion to dismiss Scott’s complaint on the ground that the applicable two-year statutory limitations period had expired without the payment of the filing fee or the approval of Scott’s affidavit of substantial hardship— either of which, CVS says, was necessary to commence the action and to invoke the jurisdiction of the circuit court. On December 2, 2015, the circuit court denied CVS’s motion to dismiss. CVS then filed this petition for a writ of mandamus.

Standard of Review

“A writ of mandamus will be granted 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 Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).... ’
“Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala.2004).”

Ex parte Courtyard Citiflats, LLC, 191 So.3d 787, 789-90 (Ala.2015).

Discussion

The present case is virtually indistinguishable from the situation that was before this Court in Courtyard Citiflats. Thus, as explained below, based on that decision, we grant CVS’s petition and issue the writ.

Section 12-19-70, Ala.Code 1975, provides:

“(a) There shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court or in district court.
“(b) The docket fee may be waived initially and taxed as costs at the conclusion of the ease if the court finds that payment of the fee will constitute a substantial hardship. A verified statement of substantial hardship, signed by the plaintiff and approved by the court, shall be filed with the clerk of court.”

In Courtyard Citiflats, this Court set forth the facts and procedural history of that case as follows:

“On July 18, 2014, [Coretta] Arrington filed, both individually and in her capacity as the administrator of the estate of her deceased minor child, a complaint against [Courtyard Citiflats, L.L.C., and Action Property' Management, L.L.C. (‘Citiflats’)]. Arrington’s complaint alleged tort-based claims in connection with the death of Arrington’s child as the result of injuries allegedly sustained on July 24, 2012, on premises owned and managed by Citiflats. Arrington’s complaint was accompanied by an ‘Affidavit of Substantial Hardship’ (hereinafter referred to as ‘the hardship statement’) alleging that Arrington was unable to pay the corresponding filing fee. See § 12-19-70, Ala.Code 1975. It is undisputed that, at the time it was filed, the hardship statement had not been approved by the trial court as required by § 12-19-70(b). Arrington’s complaint was also accompanied by the summonses necessary for service on the named defendants, which were stamped ‘filed’ by the clerk of the trial court on the filing date.
“On August 18, 2014 — after the July 24, 2014, expiration of the applicable two-year statute of limitations — the trial court entered an order purporting to approve the hardship statement. On August 19, 2014, the clerk of the trial court issued the previously filed summonses for service.
“Citiflats filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to dismiss Arrington’s complaint on the ground that the statutory limitations period had expired without the payment of a filing fee or the approval of a hardship statement — either of which, according to Citiflats, was necessary to commence the action and to invoke the jurisdiction of the trial court. Relying on prior authority from this Court, notably De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), and Mace v. Centel Business Systems, 549 So.2d 70 (Ala. 1989), Citiflats alleged that the mere filing of Arrington’s complaint without payment of the filing fee or approval of the hardship statement was insufficient to commence the action for statute-of-limitations purposes; thus, Citiflats contended, all of Arrington’s claims were time-barred.
“In her opposition to the dismissal motion, Arrington, among her other arguments, attempted to distinguish the present case from the authorities cited by Citiflats and requested, pursuant to Hornsby v. Sessions, 703 So.2d 932 (Ala. 1997), that the trial court enter an order nunc pro tunc deeming its approval of the hardship statement as having been ‘retroactively entered’ on the original filing date.
“After a hearing, the trial court, on November 5, 2014, entered, over Citif-lats’ opposition, an order approving the hardship statement ‘Nunc Pro Tunc retroactive to [the original] filing date’; shortly thereafter, the trial court entered a second order denying Citiflats’ motion to dismiss. Citiflats promptly filed this petition for a writ of mandamus.”

Courtyard Citiflats, 191 So.3d at 788-89 (footnote omitted).

Based on that factual situation, this Court held that the circuit court erred in refusing to dismiss Arrington’s complaint as untimely and granted the petition and issued the writ of mandamus directing the circuit court to dismiss Arrington’s complaint. Because the facts here and those in Courtyard Citiflats are indeed indistinguishable, the reasoning in Courtyard Ci-tiflats is applicable in the factual situation with which we are presented. In Courtyard Citiflats, this Court reasoned:

“In its petition, Citiflats maintains that either the payment of the requisite filing fee or the trial court’s approval of the hardship statement was a jurisdictional prerequisite for the commencement of Arrington’s action. More specifically, Citiflats contends that the trial court exceeded its discretion in issuing an order ‘nunc pro tunc ’ in an effort to cure a jurisdictional defect. Although this Court is aware of the unfortunate result from Arrington’s perspective, and despite her attempts to demonstrate that the authorities cited by Citiflats are inapposite, we must agree that the authorities cited by Citiflats are both applicable and controlling: caselaw clearly dictates that the payment of a filing fee or the preapproval of the hardship statement is a jurisdictional prerequisite to the commencement of Arrington’s action.
“Here, it is undisputed that Arrington timely filed her complaint — accompanied by the hardship statement — within the applicable limitations period. This Court has repeatedly cautioned, however, that mere filing, alone, is not always sufficient to commence an action and to toll the running of the limitations period:
“ ‘Although Rule 3, Ala. R. Civ. P., states that “[a] civil action is commenced by filing a complaint with the court,” this Court has held that the filing of a complaint is not the sole factor in determining when an action is “commenced.” A major function of Rule 3, Ala. R. Civ. P., is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing an action and suspending the operation of the applicable statute of limitations; however, it is not the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, 1032 (Ala.1980). This Court has held that the filing of a complaint, standing alone, does not commence an action for statute-of-limitations purposes.’
“Ex parte East Alabama Mental Health-Mental Retardation Bd., Inc., 939 So.2d 1, 3 (Ala.2006).
“In De-Gas, [Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985) ], the plaintiffs delivered both summonses and a complaint to the clerk of the trial court, who stamped the items ‘filed’ on the date they were delivered. 470 So.2d at 1219. However, the plaintiffs neglected to pay the filing fee at that time. Over one month later, the plaintiffs paid the filing fee, and service was then effected; however, the statute of limitations on at least one of the plaintiffs’ claims had expired between the filing of the complaint and the payment of the filing fee. In rejecting the claim that the delivery of the complaint and summonses without the payment of the filing [fee] was sufficient to commence the action for statute-of-limitations purposes, this Court explained:
‘“The use of the term “shall” in [§ 12-19-70] makes the payment of the filing fee mandatory. See Prince v. Hunter, 388 So.2d 546, 547 (Ala. 1980). It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing.’
470 So.2d at 1220 (first emphasis added).
“In reaching that .conclusion in DeGas, we further noted that “ ‘[t]he most important and essential element of interruption of [the running of the limitations period] is that defendant be judicially notified of the rights which are sought and of plaintiffs intent to proceed with the action.” ’ 470 So.2d at 1221 (quoting 54 C.J.S. Limitations of Actions § 264 at p. 294 (1948)). Thus, we held that ‘the payment of the fees required by § 12-19-70 or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.’ 470 So.2d at 1222 (emphasis added). See also Reynolds v. Sheppard, 818 So.2d 389, 391 (Ala.2001) (‘Unless the filing fee is paid or a court-approved verified statement of substantial hardship is filed within the limitations period, the action has not been commenced within that period.’ (emphasis added)); Ex parte Beavers, 779 So.2d 1223, 1225 (Ala.2000) (concluding, where the circuit court had ruled on the merits of postconviction petition after it had denied' petitioner’s request to proceed in forma pauperis, that, solely ‘[b]ecause the circuit" court denied [petitioner’s] request to proceed in forma pauperis, it lacked jurisdiction to rule on the merits of his petition’); Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008) (‘The payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action.’ (emphasis added)); Carpenter v. State, 782 So.2d 848, 850 (Ala.Crim.App.2000) (dismissing the appeal as from a void judgment where trial court had purported to rule on affidavit of substantial hardship at the conclusion of the underlying proceeding on ground that ‘[a] trial court does not obtain jurisdiction of an action until either a filing fee is paid or the fee is properly waived, according to § 12-19-70’ (emphasis added)); and Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997) (‘[A]bsent payment of the filing fee or approval of the in forma pauperis declaration, the circuit court does not acquire subject-matter jurisdiction.’ (emphasis added)).
“Mace [v. Centel Business Systems, 549 So.2d 70 (Ala.1989)], similarly involved a plaintiff who filed a complaint at or near the statutory deadline with an accompanying, but unapproved, affidavit of substantial hardship. Relying on DeGas, among other cases, we affirmed, on direct appeal, a summary judgment for the defendants on the ground that the plaintiffs claim was barred by the applicable statute of limitations. 549 So.2d at 71. It is true, as Arrington notes, that the plaintiff in Mace also failed to include, at the time of filing, the summonses and information necessary to accomplish service on the defendants — which the Court considered evidence of Mace’s lack of intent actually to commence the lawsuit at filing. Id. We note, however, that, despite the inclusion of the summonses with her complaint, Arrington’s failure to pay the filing fee or to submit a court-approved hardship statement at the time of filing resulted in a similar delay in the service of her own summonses. Moreover, in De-Gas, we specifically concluded that cases in which service was withheld on instruction of the plaintiff were applicable to cases involving nonpayment of filing fees:
“ ‘By failing to pay at the time of filing the complaint the filing fee mandated by § 12-19-70, the plaintiffs not only caused service to be withheld but effectively precluded any action by the clerk’s office necessary to actually set the case in motion.’
470 So.2d at 1221-22. Despite Arring-ton’s attempt to demonstrate otherwise, the facts in Mace appear indistinguishable from those in the present case. As Arrington notes, the provision for proceeding in forma pauperis is an attempt to make sure even our poorest citizens receive access to our courts for the redress of perceived grievances; nonetheless, to gain that access, parties proceeding in forma pauperis must nevertheless comply with the accompanying filing prerequisites. See § 12-19-70(b), Ala. Code 1975.
“In light of the foregoing, the trial court lacked the authority to grant Ar-rington’s request for a nunc pro tunc order retroactively approving the hardship statement. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (‘ “[A] jurisdictional defect ... cannot be cured nunc pro tunc back to the date when the original complaint was filed.” ’ (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed.Cl. 1, 7 (1997))); Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (‘The failure to pay the filing or docketing fee is a jurisdictional defect.’).
“Finally, because the identified defect was jurisdictional, it would not appear to be, as Arrington urges, subject to principles of equitable tolling. In any event, Arrington has failed to allege circumstances sufficient to demonstrate that she is entitled to equitable tolling; specifically, as Citiflats notes, Arrington offers no explanation — much less an ‘extraordinary circumstance — either for her failure to seek approval of the hardship statement prior to filing or for waiting until six days before the expiration of the limitations period to file the hardship statement. See Weaver v. Firestone, 155 So.3d 952, 957-58 (Ala.2013) (“ ‘[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” as to the filing of his action. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).’). See also Ex parte Ward, 46 So.3d 888, 897 (Ala.2007) (holding that ‘equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence’). Certainly, nothing suggests that any action by or on behalf of Citiflats either caused or contributed to Arrington’s delay.”

Courtyard Citiflats, 191 So.3d at 790-92 (footnotes omitted).

Likewise, in the present case, the payment of the filing fee or the approval of the affidavit of substantial hardship was a jurisdictional prerequisite to the commencement of Scott’s action. The applicable two-year limitations period expired on September 2, 2015. Scott filed her complaint — along with the affidavit of substantial hardship — on August 26, 2015, within the limitations period. However, Scott did not pay the filing fee and her affidavit of substantial hardship was not approved until after the limitations period had expired. Clearly, based on Courtyard Citiflats, Scott failed to commence her action within the two-year limitations period; thus, the circuit court had a duty to dismiss Scott’s complaint as untimely.

Conclusion

Based on the foregoing, we hold that CVS had a clear legal right to have the circuit court dismiss Scott’s complaint as untimely. Ex parte Hodge, 153 So.3d 734 (Ala.2014). Accordingly, we grant the petition and issue the writ directing the circuit court to dismiss Scott’s complaint.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent. See my dissent in Ex parte Courtyard Citiflats, LLC, 191 So.3d 787, 798 (Ala.2015), reasoning, inter alia, as follows:

“It appears then that the Court [in De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985),] was intending to describe simply the requirement that, if a filing fee is not paid with the complaint, the plaintiff must file an affidavit that, ultimately, meets with the approval of the court.
“The main opinion’s understanding of [certain language in De-Gas ] as requiring that the affidavit of substantial hardship be approved at some point before the statute of limitations expires would mean that a plaintiffs meeting a statute-of-limitations deadline depends not on the plaintiffs own action, but on how quickly a third party — a trial court judge — takes some sort of action. Such a scheme is unseemly at best, and unworkable and inequitable at worst. Indeed, it raises the specter that two plaintiffs appearing before two different judges in adjoining circuits, or even in the same circuit, with similar causes of action against the same defendant might file essentially the same ‘papers’ (including in both cases similar affidavits of substantial hardship) in an effort to corn-menee an action several weeks (or perhaps even months) before the expiration of a statute of limitations and that one will be deemed in the end to have succeeded in meeting the deadline while the other will not, the only difference between them being the timeliness of the trial judge assigned to their respective cases. Surely the satisfaction of a statute of limitations, not to mention the invocation of a court’s jurisdiction, is something that is to be within the control of the plaintiff and not dependent on the actions of a third party, even if that third party is the court itself.”

Speaking to an analogous circumstance (dependence upon a probate court for the issuance of letters of administration), I recently noted that a statute of limitations is intended

“to provide a ‘bright-line’ time limit that provides uniformity and certainty....
“Further, and of even more fundamental import to the manner in which statutes of limitations are intended to function, whether a plaintiff meets the statute-of-limitations deadline should be within that plaintiffs control and not the control of a third party, e.g., a probate court acting on a petition for letters testamentary or of administration. When meeting a statute of limitations depends upon the acts of a third party, two plaintiffs who take exactly the same actions at the same time to pursue their claims face the distinct possibility of different outcomes.”

Alvarado v. Estate of Kidd, 205 So.3d 1188, 1201 (Ala.2016) (Murdock, J., dissenting) (emphasis omitted) (also quoting the trial court in a related case, Marvin v. Health Care Authority for Baptist Health, 204 So.3d 863, 864 (Ala.2016), as follows: “ ‘The bar should be forewarned that the two year statute of limitations in a wrongful death case is no more — the time limit is actually two years less whatever time it will take for a probate judge to issue letters. Better hope the judge is not on vacation ... etc.’ ”).

      . Section 6-2-38(Z), Ala.Code 1975, provides: "All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

      . As noted in Courtyard Citiflats, "because the identified defect was jurisdictional, it would not appear to be ... subject to principles of equitable tolling.” 191 So.3d at 792. Scott has made no equitable-tolling argument.


author: DONALDSON, Judge.

text:
    Thomas E. DRAKE II and Kimberly H. Drake v. ALABAMA REPUBLICAN PARTY.
    2150157.
    Court of Civil Appeals of Alabama.
    May 13, 2016.

      Thomas E. Drake II of The Drake Law Firm, Cullman, for appellants.
    Albert L. Jordan and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt LLC, Birmingham; and Joel R. Blankenship of The Blankenship Law Firm, LLC, Birmingham, for appellee.
   DONALDSON, Judge.

“When a trial court enters conclusions of law stating alternative, legal grounds for its judgment, the failure of an appellant to show error as to each ground in his or her opening brief constitutes a waiver of any argument as to the omitted ground and results in an automatic affir-mance of the judgment.”. Austin v. Providence Hosp., 155 So.3d 1028, 1031 (Ala.Civ. App.2014). Thomas E. Drake II and Kimberly H. Drake, appeal from the summary judgment of the Jefferson Circuit Court (“the trial court”) disposing of their claims against the Aabama Republican Party. The trial court stated two bases for entering a summary judgment in favor of the Aabama Republican Party on the Drakes’ claims. Because the Drakes fail to address one of the bases for the judgment on appeal, they have waived any argument against that basis for the judgment. As a result, we affirm the judgment.

Facts and Procedural History

On September 11, 2015, the trial court entered a summary judgment in favor of the Aabama Republican Party. The Drakes do not dispute the procedural history and facts of the case as stated by the trial court. In the judgment, the trial court stated the following procedural history, facts, and findings:

“This matter came before the Court via the Defendant’s Motion for Summary Judgment.. This case is an appeal by the Plaintiffs Thomas Edwin Drake, II (Mr. Drake) and Kimberly Drake (Mrs. Drake) .from a judgment in. the District Court of Jefferson County. The Plaintiffs complain that, the Defendant[,] the Aabama. Republican Party[,] refused to return the ‘qualifying fee’ each of them paid to the Defendant seeking to be the nominee of the Defendant in the November 2014 elections. Mr. Drake wanted to be the candidate for U.S. House of Representatives, District 4, and Mrs. Drake wanted to be.a candidate for the Aabama Court of Criminal Appeals. The total amount of fees in dispute is $6600.00. Ater. receiving the money, the Defendant decided to refuse to allow either of the Plaintiffs to be listed as a candidate for the primary election occurring in June 2014.
“The Plaintiffs filed this action in the District Court in May 2014, and requested damages from the Defendant for its action. They asserted three common law grounds for relief, viz., breach of implied contract, unjust enrichment, and fraud. The Plaintiffs do not contend that their disqualification from being listed on the primary election ballot was illegal. The District Court rendered a judgment on the merits in favor of the Defendant in December 2014. The Plaintiffs filed their appeal to this Court on December 31, and amended their complaint in 2015 to add a claim for conversion.
“In the Motion for Summary Judgment, the Defendant asserts that the Plaintiffs did not exhaust their administrative remedies within the Alabama Republican Party. They further assert that the Plaintiffs’ recovery of damages for the ‘qualifying fees’ would be barred by the legislature’s denial of court authority to issue orders reviewing a political party’s ‘conduct’ of primary elections.
“In 2013, with the adoption of a Primary Resolution, the Defendant exercised its option, as a political party, to participate in the 2014 primary elections which are authorized to be conducted with the resources of the State as allowed by Chapter 13 of Title 17 in the Alabama Code. Under Ala.Code § 17-13-7, the Defendant retains the right to decide, ‘in its own way,’ who ‘shall be entitled and qualified to vote in such primary election or to be candidates therein....’ Further, under § 17-13-47, the Defendant ‘may fix assessments ..., or other qualifications as it may deem necessary, for persons desiring to become candidates for nomination to offices....’ Lastly, Ala.Code § 17-13-88 provides that “[t]he state executive committee may prescribe such other additional rules governing contests and other matters of party procedure as it may deem necessary not in conflict with this chapter.’
“The Defendant’s Primary Resolution also provided for the affairs of its primary election to be managed by a Candidate Committee. Under the terms of the Resolution, ‘the Alabama Republican Executive Committee expressly reserves the right to review and to reverse or otherwise supersede action taken by the Candidate Committee.’ The Primary Resolution also provides a form whereby persons may declare their candidacy for the Republican nomination. Mr. Drake and Mrs. Drake each completed one of these forms for the offices they sought in declaring their candidacies in February 2014. The forms warn that candidacies are subject to challenge.
“The candidacies of both Mr. Drake and Mrs. Drake were challenged, and a hearing occurred before the Candidate Committee in March 2014. Shortly after that hearing, both Mr. Drake and Mrs. Drake were disqualified. Their ‘qualifying fees’ were not returned, and they subsequently made a specific request for their return. That too was rejected. Neither of the Drakes filed an appeal to the ‘Executive Committee’ requesting that it exercise its authority to review and reverse or supersede the action of the Candidate Committee. The Court concludes, as a matter of law that the Plaintiffs have failed to exhaust the administrative remedies available under the Defendant’s 2014 Primary Resolution to obtain a return of their qualifying fees. See Ex parte Graddick, 495 So.2d 1367, 1370 (Ala.1986). The Defendant’s participation in the primary election process does not deny it the power to set the qualifications, including the terms for ‘qualifying fees,’ in the form of assessments, ‘in its own way,’ and using procedures it deems necessary. The Plaintiffs’ failure to seek review from the ‘Executive Committee’ therefore means this Court lacks jurisdiction over the subject matter. See Ex parte Cincinnati Insurance Co., 51 So.3d 298 (Ala.2010).
“It makes no difference that the Plaintiffs seek damages under the precedents which recognize grounds for relief under the common law of Alabama. The primary election statutes assign to the political party authority for resolution of the matter of qualifications, including disputes about the terms of qualifying fee ‘assessments.’
“As further ground for finding a lack of jurisdiction, the Court relies on Ala. Code § 17-16-44. In that statute, the legislature has limited the jurisdiction of the courts in any proceeding ‘for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; .... ’ Part of the ‘conduct’ of the primary election process is the identification of the candidates by the political party in the manner set out in Ala.Code § 17-13-7 and § 17-13-47. Ala.Code § 17-13^47 limits the discretion of a political party in fixing assessments in two ways: (i) by the amount that may be charged, i.e., no more than 2% of the salary of the office, or $50 for unrenu-merative office, and (ii) by the ability to pay. There are no other statutory restrictions on how a political party exercises its discretion in fixing the terms for payment of qualifying fees. The Plaintiffs have pointed to no statute which provides for return of qualifying fees, or damages, to be awarded against a political party for not providing such a return of qualifying fees. Accordingly, Ala.Code § 17-16-44 denies this Court jurisdiction over the claims made by the Plaintiffs, and bars this Court from resolving them.
“There is no challenge in this case to the constitutionality of Ala.Code § 17-16-44, as applied here. The undisputed facts of this case show that the Defendant has no policy to refund qualifying fees, and that no one promised the Plaintiffs when they provided their qualifying fees that either of them would receive a refund if their candidacy was not allowed. The ease does not involve the kind of arbitrary reversal of a well-established, long-standing rule which may be a violation of due process of law for which a remedy must be available from the courts. Cf. Alabama Republican Party v. McGinley, 893 So.2d 337, 346 (Ala.2004). Even those concerns about due process must be balanced against the associational rights of a political party. Id. at 346-47 n. 7.
“For these reasons, the Court enters Summary Judgment in favor of the Defendant on all of the Plaintiffs’ claims, and this action is dismissed, with prejudice.”

On October 23, 2015, the Drakes filed a notice of appeal to this court. This court transferred the appeal to the supreme court for lack of subject-matter jurisdiction. The supreme court transferred the appeal back to this court pursuant to 12-2-7(6), Ala.Code 1975.

Discussion

The trial court provided two bases for the summary judgment: that the Drakes did not exhaust their administrative remedies and that the court lacked jurisdiction over the Drakes’ claims pursuant to § 17-16-44, Ala.Code 1975. On appeal, the Drakes argue solely that the trial court’s reliance on the doctrine of the exhaustion of administrative remedies to dispose of their claims was misplaced. The Drakes do not address the other basis for the judgment, i.e., the trial court’s lack of subject-matter' jurisdiction over their claims pursuant to § 17-16-44. “[W]e are governed by the long-standing, well-established rule that the appellant has an affirmative duty of showing error upon the record.” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983), “ ‘ “[T]his court will not presume [an] error on the part of the trial court.”’” Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ.App.2010)(quoting D.C.S. v. L.B., 4 So.3d 513, 521 (Ala.Civ.App.2008), quoting in turn G.E.A. v. D.B.A., 920 So.2d 1110, 1114 (Ala.Civ.App.2005)). “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). This court is required to affirm a judgment if the appellant has waived any arguments regarding an alternative basis for the judgment. Austin v. Providence Hosp., supra; State Dep’t of Transp. v. Reid, 74 So.3d 465, 469 (Ala.Civ.App.2011). See also Biz Distribution Co. v. Crystal Fresh, Inc., 59 So.3d 717, 719 (Ala.Civ.App.2010); Soutullo v. Mobile Cty., 58 So.3d 733, 739 (Ala.2010) (“Because the [appellants] have pretermitted discussion of one of the two grounds forming the basis for the [judgment], we pretermit discussion of the other ground, and we affirm the judgment.”). Because the Drakes do not address one of the two grounds for the judgment, the trial court’s judgment must be affirmed.

AFFIRMED.

THOMPSON, P.J., and MOORE, J., concur.

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

PITTMAN, J., recuses himself.

      . Section 17-16-44 states, in part: “No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute.... ”