source: Caselaw Access Project

author: BARNES, J„

license: Public Domain

text:
    Kelly R. BURGE, Appellant v. Craig A. BURGE and Chadwick A. Sharff, Appellees
    NO. 2015-CA-01580-COA
    Court of Appeals of Mississippi.
    08/01/2017

      ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE
    ATTORNEYS FOR APPELLEES: ALLEN FLOWERS, EARL LINDSAY CARTER JR.
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J„

FOR THE COURT:

¶ 1. This case stems from a divorce action filed by Craig Burge against Kelly Burge in the Lamar County Chancery Court. Craig and Kelly had two children together, and Kelly also had physical custody of her two children born of a prior marriage to Chadwick Sharff (Chad). In Craig’s complaint for divorce, among other matters, he sought physical and legal custody of all four children, claiming he acts to loco parentis as to the two Sharff children. Subsequently, Chad filed a petition to join Craig’s request" for custody of all four children so as not to separate the children or, in the alternative, grant Chad custody of his children. In the Sharff divorce case, assigned to a different chancellor, Chad moved to transfer and consolidate his case with the Burges’ case. Craig also sought to consolidate the cases. In turn, Kelly filed a motion for summary judgment, alleging that the chancery court did not have jurisdiction over the Sharff children. Craig’s and Chad’s motions to consolidate were granted, and Kelly’s motion for summary judgment was denied.

¶ 2. The seven-day trial spanned over six months. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly made an ore tenus motion for an involuntary dismissal of Chad’s petition for modification of child custody and support, which was granted. In a ninety-page opinion, the chancellor granted Craig a divorce on the grounds of uncondoned adultery, and awarded him legal and physical custody of his two minor children, as well as of the two Sharff children. The chancellor found Kelly’s natural-parent presumption had been rebutted with regard to the Sharff children because of her immoral conduct and mental unfitness. Additionally, the chancellor found Chad’s natural-parent presumption rebutted because he had abandoned his children, and was also unfit for custody.

¶ 3. Kelly appeals the judgment of the chancery court, raising two issues related to the Sharff child-custody ruling: (1) whether her natural-parent presumption was overcome, and (2) whether modification of the Sharff action was proper when the claim had been involuntarily dismissed. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 4. Craig and Kelly were married on June 2, 2004, after a three-week courtship. She had been divorced from Chad for approximately four months. Craig and Kelly separated in February 2013 in Purvis, Mississippi. Two children were born of the marriage: Paula, a female child bom in 2005, and Peter, a male child born in 2008. Prior to her marriage to Craig, Kelly was married to Chad from 1998 until February 2004. Two children were born of their marriage: Phillip, a male child born in 1998, and Perry, a male child born in 2001. In the Sharff divorce judgment, Kelly was awarded physical custody of Phillip and Perry Sharff, with Chad to pay child support.

¶ 5. In March 2013, Craig filed for di- ' vorce and requested custody of all four children, claiming to act in loco parentis for the Sharff children. Craig named Chad as a nominal party related to custody of the Sharff children. Craig alleged that Chad was not active in his children’s lives, and Chad’s whereabouts were unknown. All of the children lived in the Burge marital home. In April 2013, the chancellor entered a temporary order whereby both parties agreed to share joint legal custody, but Craig would have temporary physical custody of all four children. Kelly would have visitation every other weekend, and Craig had temporary use and possession of the marital home. Both parties were enjoined from exposing the children to romantic interests.

¶ 6. In August 2013, Chad answered the Burge divorce petition, even though he had not been served with process in the matter and filed a petition to join the Burge case. He denied that Craig stood in loco paren-tis to his children. However, Chad joined Craig’s request to award custody of all four children to Craig so as not to separate the children. In the alternative, he requested . modification of child custody to him. Also in August 2013, Craig filed a petition for contempt, claiming, among other matters, that Kelly violated the temporary order by exposing the children to her paramour, Burke Williamson, during visitation. A guardian ad litem (GAL) was appointed for all four children. In September 2013, the chancery court issued a second temporary order, directing the children not be exposed to Burke, and Chad’s child-support payments be paid to Craig through the trust account of Kelly’s attorney. In December 2013, Craig filed an emergency petition claiming Kelly had ignored these directives.

¶7. In June 2014 in the Sharff case, Chad filed a petition for modification of child custody to him, citing Kelly’s divorce proceedings with Craig as a material change in circumstance. Chad also claimed that he continued to pay child support for his two children, in contradiction to Kelly’s assertions to Craig. Chad also filed a motion to transfer and consolidate his case with the Burge case. Likewise, Craig requested consolidation of his and Chad’s case. Kelly also filed a motion for summary judgment claiming the chancery court lacked jurisdiction over the Sharff children.

¶ 8. In October 2014, an order consolidating both cases was entered, and trial began in December 2014, and continued for several dates until July 2015. In September 2015, the chancery court entered its opinion and final judgment. The chancellor granted Craig a divorce from Kelly on the grounds of uncondoned adultery. Kelly’s natural-parent presumption as to the two Sharff children was rebutted, as the chancery court found her conduct “so immoral as to be detrimental to the children,” and that she was “unfit, mentally or otherwise, to have custody.” Chad’s natural-parent presumption was also rebutted, with the court finding he abandoned and deserted his two (Sharff) children, and that he too was mentally unfit to have custody. Under an Albright analysis, Craig was granted legal and physical custody of all four children. Kelly was ordered to pay Craig child support, and Chad was ordered to pay $300 per month for his two children. Kelly was also found in contempt of court for her repeated failure to prevent the children’s exposure to Burke, as ordered, and failure, to remit to Craig child support and her share of medical expenses for the children, which amounted to $4,558.11. The chancellor stated the Sharff case was “hereby modified as to Chad and Kelly’s custody, visitation, and child support ... and all provisions not modified remain in force and in effect,” Kelly timely appealed.

STATEMENT OP PACTS/TRIAL TESTIMONY

¶9. Over the course of the seven-day trial, seven volumes of trial testimony were taken from numerous witnesses, and sixty-three exhibits were entered into evidence. Since this case is primarily driven by the facts, we find it necessary to relate them in some detail.

¶ 10. At the time of Craig and Kelly’s marriage, Phillip . Sharff was. five years old, and Perry Sharff was two years old. Craig put the two boys on his medical insurance, and “took over as their dad” since Chad was mostly absent. The Sharff children knew Craig as “Dad,” although they did enjoy seeing Chad. Both boys wanted Craig’s last name of “Burge” on the back of their baseball jerseys. Craig testified he was there for all four children and his parenting skills are “off the chart.” He maintained that he wanted custody of all four children.

¶ 11. Craig works for his family as a log loader. The marital home was a house built before the marriage by Craig on his family’s property in rural Lamar County. During the marriage, Kelly stayed at home, keeping the house and caring for the children. She homeschooled them and, according to Craig, initially did a good job. Kelly felt it was best because the children allegedly suffered' from dyslexia and had attention-deficit issues. However, Craig was not in favor of homeschooling. In late 2012, Kelly decided to sell Visalus diet shakes part-time. Craig would keep the children while Kelly attended the sales meetings. Toward the end of the marriage, Craig testified that the children were often left with the oldest child, Phillip, or Craig’s family members when Kelly left the house, which became more frequent. When the couple received a $25,000 Christmas gift, Kelly decided to spend $8,500 on breast-augmentation surgery less than a year before they separated, claiming a model-like figure would help her Visalus sales.

¶ 12. Craig and Kelly separated in February 2013, when Craig came home from church and Kelly said she was- sorry he was “still trying” with regard to their marriage. Since September 2012, Kelly had been communicating with her soon-to-be paramour Burke in Jackson. Burke was an old classmate of Kelly whom she had contacted when she. 'was selling Visalus shakes'. He was a former, soldier with post-traumatic stress disorder (PTSD) and a drinking problem, and Kelly said she was trying to help him “find .the Lord.” In December 2012, an incident occurred where Kelly frantically insisted Craig drive her to Jackson in the middle of the night to check on Burke because he was allegedly suicidal. Upon arrival at Burke’s apartment, they found him passed out from alcohol consumption but unharmed. Craig instructed Kelly to have no more communication with Burke, as it was not good for their marriage. Kelly agreed. Burke later texted Craig that he had “no designs on [his] wife. I don’t know why she is so taken with me” and further, that he was “not sleeping -with [Kelly] and wouldn’t if [he] could” because he is a “good soldier.”

¶ 13. 'In January 2013, another incident occurred. Kelly told Craig she, was going to Grenada to see her aunt. Upon Kelly’s return, Craig saw a photograph posted on Facebook where Kelly was sitting on a bed topless with her back to the camera and an American flag draped around her hips. Kelly denied the photograph was inappropriate, explaining that the photograph was for a wounded-warrior organization that helped soldiers with PTSD. She defended it as “Christian.”

¶ 14. In March 2013, after the couple’s separation, Kelly checked herself in to Pine Grove, a behavior health and addiction, treatment center in Hattiesburg, where her mother worked as a nurse. Kelly told Pine Grove that she was “torn between two men,” and had been depressed and suicidal for fourteen years. She was diagnosed with a broad range of maladies including depression, anxiety, insomnia, and “magical thinking.” Craig stated that before her admission, Kelly was having “intrusive thoughts” and was suicidal; Kelly denied this accusation. During her five-day stay, Burke sent Craig a text message letting him know that Kelly want ed Burke to call her at Pine Grove, but stated: “You don’t have to worry about me anymore ... but the next guy she finds won’t be as moral as I am.” Burke then told Craig that the weekend Kelly said she went to her aunt’s house in Grenada, she had actually come to Jackson to have lunch with Burke. They had drinks and ended up at Burke’s apartment in bed. Burke said Kelly wanted to have sex, but Burke refused. Burke texted Craig: .“[W]ith the ease [Kelly] went from trying to sell me shakes to wanting to be with me I doubt I’m her first.” Burke then offered to send Craig several raunchy “sex texts” between Kelly and him. Craig assented, and Burke sent a series of sexually explicit text messages to Craig. Kelly later testified that Burke made up the messages. The chancellor later found these texts “troubling.”

¶ 15. The same- morning the sex texts were sent, Pine Grove staff requested Craig come for a family meeting with Kelly and “expect the worst,” because the marriage was broken and Kelly was leaving. However, Kelly maintained that the marriage was over long before she went to Pine Grove. When confronted by Craig, Kelly admitted the sexual texts with Burke were valid, and that she went to Burke’s apartment instead of her aunt’s, house. Kelly also admitted to Craig that she had committed adultery with Burke. In response, Craig told Kelly not to return to the marital house. Kelly claimed she was “kicked out” of the house.

¶ 16. Upon discharge from Pine Grove, Kelly supposedly stayed with her parents for a few days and then moved into Burke’s apartment in Ridgeland. Again, the exact dates vary. She claimed Burke “stayed elsewhere.” Kelly did not comply with the Pine Grove discharge recommendations of therapy, medications, and ninety days of Alcoholics Anonymous. At some point Kelly rented an apartment near Burke’s in the same complex. He paid for her rent, utilities, food, and all of her expenses because she was “homeless and destitute.” Kelly described Burke as her “soul mate, rock, and best friend.” She testified that she is happy with him, and he would probably be her boyfriend once the divorce is concluded.

¶ 17. Craig testified that he takes care of the children’s needs, even though he works long hours. He receives help from his nearby family members as needed for child care and tutoring. Craig lives in the marital four-bedroom home near Purvis, while Kelly now lives in a three-bedroom apartment in Pearl. Kelly’s parents live in Hattiesburg, and her grandparents live in Purvis, but she testified she plans on staying in the Jackson area. At the time of trial, Kelly had a new job at a day care making $12 an hour for a forty-hour work week. Kelly testified that she has no mental-health issues; her depression was cured by prayer.

¶ 18. During then- marriage, Craig testified that Kelly received $23,790 in child support from Chad that he did not know about. At a certain point, Kelly told both Craig and the Sharff children that she did not know whether Chad was “dead or alive,” and that she had received no child support from him. Later, Craig learned Chad had not missed a child-support payment since October 2007. Further, Chad stated Kelly had thwarted his visitation efforts. Under the court’s second temporary order of September 19, 2013, Kelly was to pay Craig any child-support payments received by Chad, but admittedly did not. Craig stated she owed him $5,474.46 for the amount paid by Chad since the temporary court order. Craig calculated he had spent $24,777.60 in medical insurance for the Sharff children since his marriage to Kelly, in addition to medical and dental expenses for the children.

¶ 19. Craig testified that Kelly started drinking at home toward the end of their marriage. He found empty Crown Royal bottles in the house. Kelly’s bank statements were entered into evidence showing Chad’s child-support payment deposits as well as Kelly’s liquor purchases. Craig also noted there were no rental or utility payments listed, although Kelly said she had her own apartment. Craig complained that Kelly did not use the child-support payments she received for the children, but on herself.

¶20. At the time of separation, Kelly was still homeschooling all of the children. Craig would come home from work and Kelly would be in bed with the children watching DVDs, or Kelly had gone to the gym and left Phillip in charge. Kelly claimed three of the four children have dyslexia. After separation, once Craig had temporary custody, he put the children in public school, but three of the children were behind in grade level.

¶21. Craig was involved in coaching some of the children’s sports, but testified that Kelly had not attended any sports events during the summer of 2013. She attended a few school programs in 2013, and had not been involved during 2014. Kelly justified her absence at sporting events and school functions by claiming the Purvis community shunned her. The children often missed sports events for visitation with Kelly. Craig testified that Kelly refused to work with him on altering the visitation schedule when there was a conflict.

¶22. Sixteen-year-old Phillip executed an affidavit making an election of preference to live with Craig. He also testified at trial. He considers Craig a father figure, and all of his siblings “a group.” He did not want to be separated from them, and did not want to live in Jackson, as he has no relatives there. Also, he has to take care of his siblings more in Jackson when visiting his mother. He claimed Craig never treated the Sharff children differently. He knew Kelly lives with Burke and claimed Burke has spent the night at Kelly’s apartment while he and his siblings were there. Phillip also admitted Kelly did not do a good job homeschooling. When he started school in Purvis, Phillip stated he was behind in every subject and his mother did nothing to help because she did not attend parent-teacher meetings or sporting events. Playing sports is important to Phillip, but he said his mother makes him feel bad for missing visitation on Fridays. Before separation, Phillip commented that his mother was present in the home but “not really there.” She also tended to “quit when things got tough,” and left him in charge. In the past, Phillip had agreed to be adopted by Craig, although it never occurred.

¶23. Craig worried that if Kelly were awarded custody, she would return to homeschooling the children, as she is “completely disgusted” that her children are now in public school in Purvis. He was also concerned about Kelly’s continued relationship with Burke, as well as his drinking problem, PTSD, and alleged atheism. Kelly was also violating the temporary order by exposing the children to Burke. The children told Craig that Burke was at Kelly’s apartment when they visit their mother. During one incident, Craig testified that Burke had grabbed Peter by the shirt when Peter locked himself in a bedroom, and Peter cried when telling Craig about it, although Kelly told the children not to mention the incident to Craig. Further, text messages were entered into evidence showing Kelly wanted permission from Craig for Burke to take the children to the state fair, after the temporary order was entered that Burke should not have contact with the children. Additionally, Craig entered a photograph into evidence that Kelly had published on social media showing Kelly and Burke enjoying themselves at the Ritz Carlton lounge in Georgia. Instead of exercising visitation with her children one weekend, Kelly had attended a lavish “Williamson family vacation” with Burke and his family.

¶ 24. Burke is a web designer that works for C Spire. Burke testified that his home mailing address is Kelly’s address in Pearl. He was aware of the temporary court orders but unsure of when he realized he was prohibited from being around the children. He admitted that he is Kelly’s boyfriend. She moved into his place, and they started having sex in June 2013; however, she pursued him. He claimed that when Kelly told the GAL they were not having “relations,” that was untrue. Burke admitted the sex texts he sent to Craig were meant to hurt Craig. Burke had edited them in order to make the communications more painful to Craig and cast Kelly in the worst light possible; however, Kelly has forgiven him. He said he had no interest in getting married to Kelly even if she were awarded custody. Burke also admitted he had been around the children during visitations. In his deposition, it was his opinion that if Kelly had custody of her four children, it would be “an F’ing nightmare.”

¶25. Kelly agreed the children should not be separated, but that she should have custody. Kelly stated she was the children’s primary caregiver during the marriage. Kelly denied telling the GAL that Chad and Craig were colluding to deprive her of custody of her children, as well as that she hid child-support funds before or after the separation. She claimed that Craig told her she did not have to pay him child support since the separation, and she used the funds to pay for the court-ordered psychologist. However, she admitted “it was not, a matter of need” and she knew she was violating a court order. She also admitted not paying Craig, for the children’s medical expenses.

¶ 26. Kelly acknowledged that Craig was the father figure and role model for all of the children. Regarding Phillip’s sports schedules and visitation, she claims that if the situation were reversed, she would force Phillip to visit Craig, as “family comes first.” She described her parenting skills as excellent, stating she has been a baby sitter, day-care worker, and homes-chool teacher, and went to parenting and continuing-education classes. She believes the Bible teaches how to raise a child.. Further, she stated that her sexual immorality should be discounted because she did not have sex with Burke until after separation from Craig, and thus it does not actually constitute adultery. Kelly accused Craig of marital rape, for years, assuring the court she had apprised Pine Grove of the matter; however, no record' of the allegation was found. Kelly admitted that Burke had been around the children numerous times despite the temporary order, and if she received custody he would be with them “a lot,” Chad’s whereabouts are unknown to her; she believed at one time his parental 'rights should be terminated, but now she “just wants him out of the picture.” She believes this scenario would be best for the Sharff children.

¶ 27. Kelly’s support system in Jackson would consist of day-care centers' related to her work, and relatives. She claimed she just agreed to Craig’s temporary custody at the outset of the case to allow the children to finish out the rest of the school year before she was awarded custody. Kelly explained when she drank too much it was to steel herself because Craig had a penchant for- rough sex, but she denied alcoholism. Kelly claims to suffer from dyscalculia, a condition that impacts her ability to remember dates, times, and directions. Additionally, Kelly said she missed school events because Craig did not inform her, and she should not have to look up events on a website. Kelly denied that her homeschooling efforts constituted “baby sitting.” Kelly acknowledged that Burke is on an antidepressant. Kelly stated she is comfortable with the children seeing her American-flag photograph. She explained that the decision to go on Burke’s family’s vacation during her visitation weekend was not wrong and was in the best interest of the children because she “had to be mentally strong.” Kelly acknowledged she is at her third job since the case began, making $33,000 a year at a day care.

¶28. .At trial, Dr. Daniel Moore, a licensed psychologist, testified about Kelly’s and Craig’s court-ordered psychological evaluations. Kelly denied to Dr. Moore any suicidal ideations, although the Pine Grove records indicate Kelly told them she had experienced fourteen years of suicidal thoughts and ideations. Dr. Moore did not feel Kelly was at. a significant risk for suicide; she had no symptoms of depression or anxiety and had quit taking antidepressants. Kelly’s issues expressed at Pine Grove were resolved or different. He found Kelly easily manipulated, that she used drinking as an escape, and her affair created inner turmoil. Craig he deemed as psychologically fit as the general population.

¶ 29. The’ GAL, James Johnson, submitted three reports over the course of the case and testified at trial. He found the children were doing well in Craig’s custody, and while both parents had. safe abodes, the children did not want to stay at Kelly’s apartment. The GAL stated it was in their best interest to stay together, Johnson stated the children’s needs 'were better met with Craig regarding protection and provision. Moreover, Chad chose Craig over Kelly to parent his children. He noted Kelly has stability in’ Pearl, but her continued relationship with Burke is confusing to the children. He was not concerned with Burke’s PTSD if the children did not spend the night with him. Johnson agreed with Dr. Moore that Kelly has no mental issues of concern now; Kelly’s stay at Pine Grove appeared to be more “respite” type care encouraged by her mother. Johnson stated Kelly perceives herself as a victim. Additionally, Burke’s dishonesty with the court was potentially a moral-fitness concern. Johnson also stated Kelly’s failure to turn over the child support paid to her by Chad for the Sharff children was a moral-fitness concern due to her knowing noncompliance with a court order. He also acknowledged' discrepancies with Kelly’s testimony about the date, she moved in with Burke upon release from Pine Grove; however, Kelly maintained she was “back and forth” between Ridge-land and .Hattiesburg during that time. Johnson recommended the children remain in public school and not be homeschooled. Ultimately, Johnson felt the children would be better off with Craig, and Kelly should have liberal visitation.

THE CHANCERY COURT’S ALBRIGHT-FACTOR FINDINGS

¶ 30. Upon finding Kelly and Chad’s natural-parent presumption rebutted, the court conducted an-Albright analysis for all four children, Although the Lcourt’s Al-bright analysis was not challenged by Kelly, there is an overlap of the analysis of the Albright factors with the natural-parent-presumption rebuttal. The court’s Albright analysis gives more insight- into the facts of the case; therefore, we shall summarize the findings. Ultimately, the court found all-of the factors favored Craig but parent/child emotional ties,-which was neutral.

¶ 31. Citing a text-message exchange between Craig and Kelly when one of the children was sick during visitation, the chancellor found age, health, and gender of the children favored Craig. Kelly had refused to take the child to the doctor for bad sinus drainage, wanting Craig to do .it once her visitation was over. She claimed not to have money for the copayment, although the court noted she was able to borrow money from Burke to go to the state fair. The court found this incident “an example of how Kelly’s self-perceived victimization adversely affects the children in a direct way,” Continuity of care favored Craig, as-the court found Kelly’s homeschooling was “ineffective at best and negligent at worst.” Further, no apparent problems with care of the children had been seen with Craig since the separation.

¶ 32. As to parenting skills and the capacity to provide child care, the court found the factor to favor Craig. While both parents expressed willingness to parent the children, the court noted Kelly’s defiance of the court’s order prohibiting the children from being around Burke. The court deemed Burke “detrimental to the children’s best interests.” The court found Kelly’s failure “is due in large part to her perception that there is nothing harmful about having the children around [Burke], which the Court finds does not evince good parenting skills ... nor gpod judgment.” While both parents could have worked better to solve visitation problems, the court deemed Kelly’s actions selfish. “[E]ven older teenagers do not get to say whether they will attend visitation or not, but a parent who denies a child participation in an activity that the child enjoys and that promotes his health, his confidence, and his social well-being is thinking only of herself.” Employment was found to favor Craig; both parties work during the daytime, but Kelly does not have as much family support as Craig. Physical health, mental health, and age favored Craig. The court found while both parties were close to the same age, Kelly’s medical records indicate a history of depression and attention deficit hyperactivity disorder. The emotional-ties factor was deemed neutral as to Kelly and Craig. Moral fitness fa-voi’ed Craig, as Kelly admitted to post-separation adultery and had a pre-separation infatuation with Burke. Home, school, and community records of the children favored Craig. Even though Kelly homes-chooled the children prior .to the separation, they fared better academically under Craig’s custody in public school. Further, in the Purvis/Hattiesburg area, the children have an extended family on both sides, have made friends, are involved in extracurricular activities, and attend school. Moving to Jackson would make them “start over” in these regards.

¶ 33. The children’s preference applies only to the Sharff children due to the Burge children’s young ages. Perry did not express a preference except to remain with his siblings; Phillip expressed a strong desire to remain with Craig; so the factor favored Craig. The stability of the home environment and employment favored Craig, who still resides in the marital home. Craig has been employed by his family’s logging "business for several years, while Kelly is on her third job since the separation. Other factors relevant to the parent-child'relationship all favored Craig. The parties’ financial situation and religion favored Craig. He is better able to support the children financially, and is more active with the children in church. The chancellor found it “clearly evident that the personal values of the parents are quite different,” and that factor favored Craig. Parental lifestyle also favored Craig; the court commented, “Craig appears to be focused on and oriented toward the family. Kelly, on the other hand, is focused primarily on her own interests and her relationship with Burke.” Finally, Craig, Kelly, Phillip, and the GAL all indicated the children should stay together.

STANDARD OF REVIEW

¶ 34. Our standard of review in child-custody cases is limited. Borden v. Borden, 167 So.3d 238, 241 (¶ 4) (Miss. 2014). This Court will only reverse a chancellor’s custody decision if it was manifestly wrong or clearly erroneous, or if an erroneous legal standard was applied. In re Waites, 152 So.3d 306, 311 (¶ 13) (Miss. 2014). Appellate courts cannot “reevaluate the evidence, retest the credibility of witnesses, nor otherwise act as a second fact-finder.” Bower v. Bower, 758 So.2d 405, 412 (¶ 31) (Miss. 2000) (citation omitted). Questions of law are reviewed de novo. In re Custody of M.A.G., 859 So.2d 1001, 1003 (¶ 4) (Miss. 2003).

ANALYSIS

¶35. Kelly raises one substantive and one procedural argument related to the two Sharff children and the rebuttal of her natural-parent presumption. We shall address each in turn.

I. Rebuttal of Kelly’s Natural-Parent Presumption

¶ 36. Kelly argues that it was error for the chancellor to find her natural-parent presumption as to her children with Chad was rebutted because of immoral conduct and unfitness. Kelly states these findings were improperly based on her continued relationship with her paramour, Burke, and the failure to comply with the chancery court’s temporary orders regarding payment of child support to Craig and the children’s exposure to Burke. Kelly also argues that the chancellor applied an erroneous legal standard in making the findings that engaging in a post-separation affair and acting in contempt of a court order constitute moral or mental unfitness sufficient to rebut the natural-parent presumption. We disagree.

¶37. “The best interest of the child is paramount in any child-custody case.” Smith v. Smith, 97 So.3d 43, 46 (¶ 8) (Miss. 2012). “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. In order to be awarded custody, the third party must rebut the natural-parent presumption by clear and convincing evidence. The natural-parent presumption is rebutted by clearly showing: “(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Id. at (¶ 9) (citations omitted). If successful, the chancellor must next examine the Albright factors and determine if third-party custody is in the best interest of the child. A finding of unfitness is necessary to award custody to a third party over a natural parent, and is done before analysis of the Albright factors. M.A.G., 859 So.2d at 1004 (¶ 6).

¶ 38. A person is in loco parentis “who stands in place of a parent, having assumed the status and obligations of a parent.” Davis v. Vaughn, 126 So.3d 33, 37 (¶ 11) (Miss. 2013) (citation omitted). “The doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted. Smith, 97 So.3d at 46-47 (¶¶ 10-11).

¶39. Because Craig sought custody of the two Sharff children, in addition to his own two children, the chancery court analyzed his request under the child-custody law related to the natural parent versus a third party. The chancery court found both Kelly and Chad’s natural-parent presumption rebutted. Kelly’s conduct was found to be immoral. In support of this finding, the court pointed to:

[Kelly’s] repeated failure to follow the Court’s orders; her failure to protect her children from Burke Williamson, who the Court deems to be a danger to the children, instead engaging Williamson in an intimate relationship; her failure to support the children by seeing that the child support money paid to her by Chad Sharff was given to Craig for the use and benefit of the children, instead of spending it on herself. '

Additionally, the chancery court found Kelly unfit, mentally or otherwise, to have custody, stating:

[Tjhe Court again considers [Kelly’s] failures where it pertains to the children—to ensure their support, to follow the Court’s orders, to protect them from harm. Not only has Kelly defied and refused to obey the Court’s prohibition against having the children, around Burke Williamson, an individual the Court deems to be detrimental to the children’s best interests, [but] it appears to the Court that Kelly’s said failure is due in large part to her perception that there is nothing harmful about having the children around Williamson. Given the exhaustive amount of evidence in the record concerning Williamson, her decisions regarding Williamson and the children seriously call her parental fitness and her mental fitness into question, to the point that the Court deems it necessary to intervene for the sake of the children.

The chancery court also found it “necessary to point out how incredible the Court finds Kelly’s testimony to be, in nearly all respects.”

¶ 40. On appeal, Kelly offers very little in the way of argument on this issue, except to state the clear and convincing burden was not met, and the finding was an “extreme and unjust sanction for con-tempt.” Upon careful review, we find the chancery court’s findings that Kelly was immoral and unfit supported by substantial evidence.

¶ 41. The court’s findings are lengthy and detailed. As pointed out by the chancellor and Craig, Kelly did not lose custody over a few modest indiscretions, but instead by making constant choices that favored her own desires over her children’s best interests. Indeed, her- relationship with her “soulmate” Burke appears to take precedence over custody of her children. The chancellor was so concerned about Burke’s being around the children, he twice enjoined Burke from contact with them. Burke’s history includes alcoholism, PTSD, adultery, and disobeying court orders. Burke admitted he has PTSD, he is taking medication for it, and there 'is no cure. He also admitted to drinking several days a week. The chancellor specifically stated that he found it “necessary to intervene for the sake of the children.” The chancellor also found it necessary to threaten Burke with perjury on the stand due to his evasive and obviously untruthful testimony about Kelly’s flag photograph and when they started a sexual relationship.

¶ 42. Kelly’s relationship with Burke was not the only reason her natural-parent presumption was rebutted. Importantly, the chancellor noted a pattern of behavior by Kelly of misleading the GAL, Dr. Moore, and the court itself, which was reflected in the record. Her testimony was frequently contradictory about dates, places, and times, although she apparently blames the discrepancies on dyscalculia.

¶43. Kelly’s inability to respect and obey the court’s directives also points to her lack of morality and fitness as a parent. Kelly defied the court’s temporary orders by living with Burke, exposing her children to Burke during visitation, allowing Burke to discipline physically one of her children, and refusing to pay Chad’s child-support payments to Craig. Additionally, she was not truthful about whether Chad was making child-support payments.

¶ 44. Chancellors make third-party custody decisions on a case-by-case basis and have wide discretion in their rulings. We cannot find that the chancellor abused his discretion in awarding legal and physical custody of the Sharff children to Craig because Kelly was found immoral and unfit. Kelly placed her relationship with Burke above all concerns for her children, even though her relationship with Burke was detrimental to her children, and impeded her ability to gain legal and physical custody of them. She further used the money Chad paid her as child support for her own personal expenses. Craig believed she also planned to continue to homeschool the children even though it was found detrimental to their education. Kelly failed to comply with the Pine Grove discharge recommendations. The children’s needs and welfare were always placed behind those of Kelly,

II. Involuntary Dismissal of Chad’s Custody-Modification Claims

¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. She claims that because Craig lacks standing in the Sharff divorce, no motion for modification survived, and the chancery court lacked grounds and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody of her four minor children by misuse of the procedural process. We are not persuaded by this argument.

¶ 46. Initially, Chad filed a petition to join .Craig’s case “for just adjudication,” and requested Craig have custody of the children so as not to separate them. Alternatively, Chad requested he have custody. Approximately ten months later, Chad filed a petition to modify child custody in his own case, requesting legal and physical custody of his two children, since a material change in circumstances had occurred— the Burge divorce proceedings. He also filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence would be presented in both cases to determine custody. Likewise, Craig filed a motion to consolidate his case’ with Chad’s case, and before trial began, the cases were consolidated.

¶ 47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal. of Chad’s custody-modification action under Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at trial to forward his claim.-Indeed, Chad had not been physically present during the trial since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for custody of his' children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody.

¶ 48. Prom this ruling, Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. She contends the involuntary dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must remain in Kelly’s custody. We disagree.

¶ 49. In Professor Deborah Bell’s family-law treatise, she states:

A petition to modify ... [a] custody ... order must be filed in the court that issued the decree. As between the parties in the original action, the issuing court’s jurisdiction is exclusive, precluding any other court in the state from exercising jurisdiction over the case. ... However, if an issuing court finds that adjudication in another court would be more efficient, jurisdiction may be transferred to that court.

Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear a custody case apart from a divorce action. Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. According to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children resided in Lamar County in both actions, which is where custody between the natural parents has already been adjudicated. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody—something the court could grant—and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. Kelly has not cited any authority to the contrary. This issue is without merit.

CONCLUSION

¶ 50. The chancery court did not abuse its discretion in finding Kelly’s natural-parent presumption rebutted and in awarding physical and legal custody of the Sharff children to Craig. The chancellor’s findings were supported by clear and convincing evidence with the best interests of the children in mind. Further, Kelly’s procedural argument is without merit. Accordingly, this Court affirms the judgment of the chancery court granting custody of all four children to Craig.

¶ 51. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Pseudonyms have been used to protect the identity of the minor children.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . Chad did not appear at trial but was represented by counsel.

      .At one point, Craig considered adopting the Sharff children but changed his mind. Kelly supported the adoption.

      . Craig later filed an alienation-of-affection lawsuit against Burke. At one point, Kelly admitted she started having sex with Burke in July 2013; however, the dates their sexual relationship commenced vary,

      . However, this is an argument Kelly makes on appeal regarding Chad's petition to modify child support and its involuntary dismissal.

      . The chancellor did not adopt the findings of the GAL regarding the Albright factors, as some conclusions were different.

      . The Mississippi Supreme Court has further stated:
      Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis. In loco parentis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child “as against third persons.”
      Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption.

        Davis, 126 So.3d at 37 (¶¶ 11-12) (internal citations omitted).

      . Rule 41(b) allows for involuntary dismissal for failure to prosecute.

      . Section 93-11-65(1) provides that the chancery court of the proper county has jurisdiction to hear and determine suits for custody of minor children. "Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child.” The action shall be brought in the county where the child is actually residing, or in the county of the residence of the party with actual custody, or in the county of the residence of the defendant. "Process shall be had upon the parties as provided by law .... ”

      . Even if the action had been filed in a different chancery court, the chancellor could have transferred the action. Here, the actions were merely consolidated as they were already in the same court.


author: PER CURIAM.

text:
    WILCOX INVESTMENT GROUP, LLC, et al. v. P & D, LLC. P & D, LLC v. Wilcox Investment Group, LLC, et al.
    1150025
    1150052
    Supreme Court of Alabama.
    September 30, 2016

      Daniel G. Blackburn of Blackburn & Conner, P.C., Bay Minette; and K. Amanda Barton of Barton Law, LLC, Mobile, for appellants/cross-appellees Wilcox Investment Group, LLC, et al.
    William W. Watts III and S. Wesley Pipes of Pipes, Hudson ■& Watts, LLP, Mobile, for appellee/cross-appellant P & D, LLC.
   PER CURIAM.

Wilcox Investment Group, LLC (‘Wilcox Investment”), Foley Investment Partners, LLC (“Foley”), and Wilcox Communities, LLC (“Wilcox Communities”) (hereinafter collectively referred to as “Wilcox”), appeal from a judgment of the Baldwin Circuit Court awarding P & D, LLC (“P & D”), $122,291 on P & D’s claims alleging the breach of two leases involving two condominium units formerly owned by P & D. P & D appeals the trial court’s judgment on the grounds that the damages the trial court awarded were insufficient and that the trial court erred in failing to award it attorney fees. We consolidated the appeals for the purpose of writing one opinion.

I. Facts

The genesis of this litigation is a condominium development in Foley, Alabama, known as Sea Pines of Bon Secour Condominiums (“the condo project”). The developer of the condo project was Sea Pines, LLC (“Sea Pines”). Sea Pines began to develop the condo project in September 2006; plans called for 84 residential'condominium units (21 buildings of 4 units each), a clubhouse, a pool, and other amenities. On September 15, 2006, Sea Pines executed a note with Superior Bank for a construction ánd development loan, secured by a mortgage on the land to be developed.

On September 27,2007, Sea Pines filed a “Declaration of Condominium of Sea Pines at Bon Secour, A Condominium” (“the declaration”), in the Baldwin probate office in accordance with the Alabama Uniform Condominium Act, Ala. Code 1975, §§ 35-8A-101 - 35-8A-417 (“the AUCA”). The declaration included core aspects of the condo project such as the plans and plats, the condominium association’s bylaws, and special rights reserved to Sea Pines as the developer of the condo project.

The AUCA provides, in part:

“(a) The declaration for a condominium must contain:
“(8) A description of any development rights specified in Section 35-8A-103(11) and other special declarant rights- specified in Section 35-8A-103(24) reserved by the declarant, together with a legally sufficient description of the’real estate to which each of those rights applies, and. a time limit within which each of those rights must be exercised....”

§ 35-8A-205(a)(8), Ala. Code 1975 (emphasis added). The AUCA defines “special de-clarant rights” as

“[rjights reserved for the benefit of a declarant (i) to complete improvements indicated on-plats and plans filed with the declaration (Section 35-8A-209); (ii) to exercise any development right (Section 35-8A-210); (iii) to maintain sales offices, management offices, signs advertising the condominium, and models (Section 35-8A-215); (iv) to use 'easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium (Section 35-8A-216); (v) to make the condominium subject to a master association (Section 35-8A-220); (vi) or to appoint or remove any officer of the association or any master association or any board member during any period of declarant control (Section 35-8A-303(d)).”

§ 35-8A-103(24), Ala. Code 1975 (emphasis added). Section 35-8A-215, Ala. Code 1975, provides, in part:

“A declarant may maintain sales offices, management offices, and models in units or on common elements in the condominium only if the declaration so provides and specifies the rights of a declar-ant with regard to the number, size, location, and relocation thereof. Any sales office, management office, or model not designated a unit by the declaration is a common element, and if a de-clarant ceases to be a unit owner, he ceases to have any rights with regard thereto unless it is removed promptly from the condominium in accordance with a right to remove reserved in the declaration. ...”

(Emphasis added.) The Commissioner’s Commentary 1 to § 215 further explains:

“This section prescribes the circumstances under which portions of the condominium—either units or common elements—may be used for sales offices, management offices, or models. The basic requirement is that the declarant must describe his right to maintain such offices in the declaration. There are no limitations on that right, so that either units owned by the declarant or other persons, or the common elements themselves, may be used for that purpose. ...”

(Emphasis added.)

The declaration defines “ ‘Developer’ or ‘Declarant’ ” as “Sea Pines, LLC, an Alabama limited liability company, and its successors and assigns.” § 2.01(M). Section 5.02 of the declaration provides:

“Use for Sales Purposes. All Units and the Common Elements shall be subject to the statutory right concerning sales and management offices and models in Units and the Common Elements in favor of the Developer allowed by § 35-8A-215 of the [AUCA]. The Developer otherwise expressly reserves the right to use one (1) or more Units owned by the Developer for management offices and/or sales and leasing offices. The Developer reserves the right to relocate offices and/or models from time to time within the Property. The Developer further reserves the right to maintain on the Common Elements advertising signs in any location or locations and from time to time to relocate and/or remove the same, all in the sole discretion of the Developer.”

(Emphasis added.) Thus, in accordance with provisions of the AUCA and the declaration, among the special declarant rights possessed by Sea Pines was the right to maintain models in units of the condo project.

By October 2007, Sea Pines had built the clubhouse and one building of condominiums consisting of four units. To get more money released from its construction loan, Sea Pines needed to sell at least two of those units. Patty Lee, a licensed realtor, was the exclusive listing agent for the condo project. Keith Clay, Sea Pines’ managing agent, made a proposal to Lee that she in turn shared with Dave Wirtes, an attorney, for the sale of two units, which would mutually benefit Sea Pines and Lee and Wirtes. The proposal involved Sea Pines selling two units to Lee and Wirtes contingent upon Lee and Wirtes leasing the units back to Sea Pines to use as sales models. Wirtes testified that Clay represented the deal as one in which “there would be no money out of [Wirtes’s] pocket” and “[at] the end of the buildout of Phase I [of the condo project] I would own the two units outright,”

To this end, Lee and Wirtes formed P & D. On October 28, 2007, P & D executed purchase agreements with Sea Pines for the purchase of unit 103 for $282,160 and unit 104 for $257,771. P & D financed the purchases through First National Bank of Baldwin County. On the same day, Sea Pines executed lease agreements with P & D in which P & D agreed to lease to Sea Pines unit 103 for $2,200 per month and unit 104 for $2,100 per month on the condition that Sea Pines “shall use the premises as a model home for real estate purposes.” The leases stated that they would terminate on “November 9, 2009, or sale by Sea Pines, ■ LLC, of final unit of Phase I of project known as Sea Pines at Bon Secour, whichever is later.” The final paragraph of each of the leases (“paragraph 10”) provided:

“10. In the event Sea Pines, LLC, its members, successors and assigns elect for any reason not to complete construction of all presently planned units of Phase I of Sea Pines at Bon Secour, Sea Pines, LLC, its members, successors or assigns shall, at the election of P & D, LLC, either a) satisfy all remaining indebtedness owed at that time by P & D, LLC, to First National Bank of Baldwin County (or its successors or assigns) for the purchase price of the condominium unit that is the subject of this lease agreement; or b) purchase from P & D, LLC, the condominium unit that is the subject of this lease agreement for the sum represented by the last most recent appraisal of the unit.”

On November 16, 2007, Superior Bank issued a “Partial Release” from its lien on the condo project for units 103 and 104. On June 8, 2009, the leases were recorded in the Baldwin probate office.

On August 31, 2011, P & D sent Sea Pines a letter contending that Sea Pines had breached the leases because of a “failure to complete construction of all presently planned units of Phase I of [the condo project].” According to P & D, nearly four years after execution of the lease agreements, Sea Pines had built only 3 of the 21 condominium-unit buildings. In the letter, P & D formally invoked the remedy of paragraph 10, asking Sea Pines to “satisfy all remaining indebtedness owed ... by P & D, LLC, to First National Bank of Baldwin County.”

On September 7, 2011, Sea Pines responded by letter to P & D’s demand, stating that it “has no available cash from which to acquire the units or assume the debt.” Sea Pines noted that it had

“not had any recent sales of units in the development. Sea Pines, LLC’s agreement with its lender is that it can construct new units but only as existing ones are sold. ... [T]he market for units such as these has been extremely depressed and Sea Pines, LLC certainly hopes that conditions will improve at some point so that development can continue and will make economic sense.”

Despite Sea Pines’ response, it continued to pay rent to P & D on units 103 and 104 through January 2013.

Cadence Bank, the successor of Superior Bank, ultimately declared Sea Pines to be in default on the note secured by the mortgage on the condo project. On February 8, 2013, Cadence Bank conducted a foreclosure sale of the condo project; the condo project was sold to Wilcox Investment for $685,654. The foreclosure deed expressly excluded from the sale the six units that Sea Pines previously had sold, including units 103 and 104.

On March 20, 2013, P &D forwarded to Wilcox Investment the leases between Sea Pines and P & D. P & D demanded that Wilcox Investment assume the obligation under the leases of paying rent to P & D. On April 9, 2013, Wilcox Investment responded to the demand: It denied that it had any obligation under the leases, and it refused to pay rent to P & D. P & D subsequently demanded that Wilcox Investment pay off P & D’s debt in accordance with paragraph 10. Wilcox Investment refused this demand as well.

On May 16, 2013, Wilcox Investment conveyed its interest in the condo project to Foley. Both Wilcox Investment and Foley are owned by the same parties. On December 29, 2014, Foley filed a “Fourth Amendment to the Declaration of Condominium” for the condo project. In this document, Foley acknowledged that “Cadence Bank ... transferred the special declarant rights set forth in the Declaration to Wilcox Investment Group, LLC, by that said Mortgage Foreclosure Deed.” It further noted that “Wilcox Investment Group, LLC, transferred the special de-clarant rights to Foley .... ” The document stated that the purpose of the amendment to the declaration was that Foley “desires to exercise its special de-clarant rights under Article 5.04 of the Declaration to contribute another additional phase to the Condominium.”

P & D asserts that because neither Wilcox Investment nor Foley made any rental payments to P & D, it became difficult to pay the $5,000 per month required tb service P & D’s mortgage debt, and so it placed units 103 and 104 for sale. On October 11, 2013, P & D sold unit 103 for $175,000. On October 22, 2013, it sold unit 104 for $162,500. Following the sales, P & D was left with an unpaid balance on its note of $119,000.

Foley permitted the escrowing of unpaid condominium fees on units 103 and 104 so that the sales on those units could close. After closing, P & D declined to release the escrowed fees to the Sea Pines Condominium Association, Inc. (“the Association”).

On February 27, 2014, Fairhope Title Services, LLC (“Fairhope Title”), filed an interpleader action in the Baldwin Circuit Court against P & D, Wilcox Investment, Foley, and the Association, in an effort to determine whether P & D owed the Association $4,340 in condominium fees. On March 3, 2014, P & D filed its answer to the complaint denying that it was obligated to pay the condominium fees to the Association; P & D also filed a cross-claim against Wilcox Investment and Foley and a third-party complaint against Wilcox Communities. Among other things, P & D sought damages from Wilcox for the alleged breach of the leases on units 103 and 104.

On April 14, 2014, Wilcox Communities filed a motion to dismiss the P & D action and Wilcox Investment and Foley answered P & D’s cross-claim. On September 22, 2014, the trial court dismissed without prejudice P & D’s cross-claim and third-party complaint with leave to allow P & D to refile its claims as a separate action. On September 23,2014, P & D filed a separate action asserting the same claims against Wilcox.

The trial court held a combined bench trial of Fairhope Title’s interpleader action and P <& D’s separate action. At the conclusion of P & D’s case, Wilcox moved for a judgment as a matter of law on P & D’s claim alleging breach of the leases; the trial court denied the motion, .

On Juné 24,2015, the trial court issued a single decision for both the interpleader action and P & D’s action. The trial court entered a judgment in favor of the Association and against P & D for $4,300 in the interpleader action because it found that P & D “as owner[] [of units 103 and 104], [is] liable for the established monthly [condominium] dues.” With regard to P & D’s action, the trial court entered a judgment in favor of P & D and against Wilcox jointly and severally, finding that Wilcox had breached the leases by not assuming Sea Pines’ rent obligation to P & D. The trial court reasoned that under the AUCA the leases were included in the special declarant rights Wilcox Investment had obtained in the foreclosure sale on the condo project and that, therefore, Wilcox was required to meét the obligation of paying rent to P & D. Instead of awarding P & D back rent, however, the trial court concluded that, because P & D had sold the condo units, “the most reasonable'outcome under the given facts” was to have Wilcox pay off P & D’s remaining debt. Accordingly, the, trial court awarded P & Í) damages “of $122,291.00 for the remaining. mortgage balances on unit 103 and 104.”

P & D filed postjudgment motions in which it requested that the trial court vacate the judgment against it in the inter-pleader action, requested an award of attorney fees and costs in P & D’s action, and requested that the trial court amend the judgment in its favor in the P & D action to include $33,120 in back rent and $406,763 in contract damages based on what it claimed to be the fair market value of units 103 and 104.

Wilcox filed a postjudgment motion in P & D’s action in which it requested that the trial court vacate the judgment against Wilcox Communities because it was a nonexistent entity that had never been served with process.

The Association filed a postjudgment motion in the interpleader action in which it sought attorney fees and costs.

In its postjudgment order, the trial court awarded the Association all costs but only nominal attorney fees. It awarded P& D costs in P & D’s action, but it denied P & D’s request for attorney fees. The trial court denied Wilcox’s request that it vacate the judgment against Wilcox Communities, and it denied P & D’s request for an amended judgment as to the amount of its recovery in P & D’s action.

On October 8, 2015, the Association and Wilcox filed notices of appeal in the inter-pleader action and P & D’s- action, respectively. The Association has elected, however, not to further pursue its appeal of the trial court’s denial in part of its request for attorney fees in the interpleader action. On October 15, 2015, P & D filed a cross-appeal in P & D’s action. Accordingly, the only parties in this consolidated appeal are Wilcox and P & D, and the parties’ arguments concern only the trial court’s judgment in P & D’s action.

II. Standard of Review

The trial court heard ore tenus evidence during a bench trial. Ordinarily, “ “[w]hen a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ ” Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010) (quoting Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003), quoting in turn Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)). In this case, however, the trial court’s judgment relied on its interpretation of the AUCA, not upon a disputed question of fact. ‘“This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’” Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005) (quoting Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala. 2003)). Furthermore, “no presumption of correctness exists as to a trial court’s judgment when the trial, court misapplies the law to the facts.” Brown v. Childress, 898 So.2d 786, 788 (Ala.Civ.App.2004). The trial court’s assessment of damages was made following the submission of conflicting evidence; therefore, ‘“[t]he ore tenus standard of review extends to the trial court’s assessment of damages.’” Kennedy, 53 So.3d at 68 (quoting Edwards v. Valentine, 926 So.2d 315, 325 (Ala.2005)).

III. Analysis

A. Liability Under the AUCA

The trial court concluded that “the Lease Agreements are related to the Declaration and are obligations imposed by the AUCA” against Wilcox. The trial court explained that, according to § 35-8A-103(24), Ala. Code 1975, using condominium units as sales models is a “special declarant right.” Section 35-8A-215 specifically requires that the model-home special declarant right must be stated in the declaration, which § 5.02 of the declaration fulfills by stating that “[a]ll Units ... shall be subject to the statutory right concerning ... models in Units ... in favor of the Developer allowed by § 35-8A-215 of the [AUCA].” Commissioner’s Commentary 14, discussing the definition of “special de-clarant rights”.in § 35-8A-103, states that “the concept of special declarant rights triggers the imposition of obligations on those who possess the rights.” More specifically, the trial court emphasized, § 35-8A-304(e), which addresses “[t]he liabilities and obligations of a person who succeeds to special declarant rights,” provides in subpart (2)a. that “[a] successor to any special declarant right, .., who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed by this chapter or the declaration .,. [o]n a de-clarant which relates to his exercise" or nonexercise of special declarant rights.” The trial court observed that,

“[u]nder § 35-8A-304(c), an individual that acquires title to real estate being foreclosed succeeds to all special declar-ant rights related to that real estate held by the declarant. Thus, by virtue of the foreclosure sale, Wilcox [Investment] succeeded to all the' special declarant rights of Sea Pines related to the real estate held by Sea Pines.”

Finally, the trial court noted that Commissioner’s Commentary 1 to § 35-8A-215 observes that “[t]here are no limitations on that right [to maintain units as models], so that either units owned by the declarant or other persons ... may be used for that purpose.” Putting all of this together, the trial court reasoned:

“This statutory right to use the units of other owners as model homes indicates that declarants can enter into a contract to lease units for the purpose of exercising that right. Thus, a lease that a de-clarant enters into with a unit owner—to rent their unit for the purpose of maintaining a model home—is an obligation arising under the AUCA and the Declaration. As such, both P & D and Wilcox are bound by the obligations of these Lease Agreements.”

Wilcox agrees that the right to maintain model homes in condominium units is a special declarant right reserved in the declaration and that Wilcox Investment succeeded to this and other special declarant rights when it purchased the condo project in the foreclosure sale. Wilcox argues, however, that “the mere existence of a special declarant right that the original developer here chose to exercise through the Leases does not transform the Leases into obligations either ’imposed by or ’arising under’ the AUCA for [Wilcox] as successor declarants.” We agree.

It is true that Sea Pines’ right as the declarant to maintain one or more model condominium units—as against the right of the condominium owners generally to the peaceful enjoyment of their own condominiums and the common areas—derives from the AUCA and the declaration. But this right under the declaration as against condominium owners in general is merely a right to use such condominium unit or units in which Sea Pines, by virtue of its retained ownership or by lease or other contract, otherwise might at a given time have a possessory interest. The right to acquire such a possessory interest in any given unit is not granted to the declarant by the AUCA or any associated declaration. Nothing in the declaration sets apart units 103 and 104 for some sort of special use by the declarant as model units. Because Sea Pines had sold units 103 and 104, to acquire a possessory right in those units (in order to be in a position to use those particular units for the exercise of the special right under the declaration to operate models), it was necessary for Sea Pines to acquire that right by way of a lease or similar contract or conveyance from the owner of those units, which of course was P & D. Thus it was that Sea Pines entered into leases with P & D. The right of Sea Pines to use P & D’s units, as against the possessory rights of P & D as their owner, derived strictly from these leases Sea Pines chose to enter into with P & D. And more importantly, Sea Pines’ corollary obligation to pay rent to P & D as consideration for its right to possess those units was solely a function of those same leases, not of the AUCA and/or the declaration.

Sea Pines’ transfer of its special declar-ant rights to Wilcox Investment did not transfer its obligation to pay rent to P & D, because that obligation was never imposed on Sea Pines through the AUCA or the declaration but through the separate lease agreements. Viewed from Wilcox’s perspective, the matter may be put as this: As the purchaser of Sea Pines’ property at foreclosure, Wilcox Investment became the successor to special declarant rights and obligations pertaining to the property it purchased. But Wilcox Investment did not assume Sea Pines’ separate obligation to pay rent under leases of additional property not owned by Sea Pines at the time of foreclosure and not purchased by Wilcox Investment as part of the foreclosure sale.

B. Liability Under the Leases Apart from the AUCA

Although the trial court did not adopt the argument, P & D reiterates a contention it made to the trial court that Wilcox is bound to the leases by the terms of the leases themselves apart from the provisions of the AUCA. P & D notes that paragraph 10 provides that, “[i]n the event Sea Pines, LLC, its members, successors and assigns elect for any reason not to complete construction of all presently planned units of Phase I of Sea Pines at Bon Secour, Sea Pines, LLC, its members, successors or assigns shall, at the election of P & D, LLC, either” satisfy P & D’s remaining indebtedness for units 103 and 104 or purchase units 103 and 104 from P & D for fair market value. (Emphasis added.) P <& D contends that, “[a]s subsequent developers who acquired special declarant rights, Wilcox [Investment] and Foley cannot avoid their, status as ‘successors’ and/or ‘assigns’ of Sea Pines within - the meaning of those terms in the Lease Agreements.” P & D insists that “the language [in the leases] was intended to bind subsequent developers who purchased the condominium development.

The basic problem with this argument is that the intent of the leases is to trigger a payment obligation by the lessee, or its successors or assigns as lessee, in the event Phase I of the project is not completed. Under the terms of the leases, if the developer, or its successor and assigns as developer, fails to complete the condominium project, then the requirement in the lease for a payoff of certain indebtedness of P <& D is triggered. But the obligation to make that payment is that of Sea Pines in its capacity as lessee (barring of course an assignment of the lease itself by Sea Pines to a successor lessee, which has not happened). There is no basis for concluding that Wilcox is an assignee or a successor to Sea Pines in its capacity as lessee under the leases. Just because Wilcox Investment was a “successor declar-ant” under the AUCA does not render Wilcox a “successor” to Sea Pines under the leases.

The Appellate Court of Illinois in Lake Homeowners Ass’n v. Bank of Ravenswood, 295 Ill.App.3d 131, 692 N.E.2d 402, 229 Ill.Dec. 629 (1998), did conclude that a successor developer that purchased planned-unit-community , property in a foreclosure sale was an “assignee” and a “successor” of the original developer, but the decision concerned the subsequent developer’s right to develop the property under the declaration of the condominium and under the Illinois Condominium Act. It did not involve whether the subsequent developer was an assignee under a separate contract. The Bank of Ravenswood court’s conclusion that the subsequent developer was a “successor” to the original developer was based on the principle that, “[i]n a foreclosure proceeding, the purchaser of the collateral at the public sale takes title to the property subject to all prior liens and encumbrances.” 295 Ill.App.3d at 137, 692 N.E.2d at 406, 299 Ill.Dec. at 633. As we already have noted, however, units 103 and 104 were expressly excluded from Wilcox Investment’s purchase of the condo project in the foreclosure sale. Consequently, the property Wilcox Investment purchased was not encumbered by the leases.

P & D also cites Alabama cases in which this Court determined that the purchaser of a lessor’s interest in real property during the unexpired term of a lease was substituted as the lessor with “all the rights of the original lessor.” Plastone Plastic Co. v. Whitman-Webb Realty Co., 278 Ala. 95, 97, 176 So.2d 27, 28 (1965), Plastone Plastic is no help to P & D, though, because in that case the Court noted that it was undisputed that the purchaser was a successor of the original lessor. 278 Ala. at 97-98, 176 So.2d at 29. Moreover,, the purchaser was aware of the lease and assumed duties as the lessor following the purchase of the real estate.

P & D also cites Texas Co. v. Birmingham Southern College, 239 Ala. 158, 194 So. 192 (1940). In Texas Company, the question was whether a mortgagee was bound by the terms of a lease when the mortgagee foreclosed on the property of the lessor. The mortgagee argued that because her mortgage preceded the lease, she “did not by virtue of the foreclosure of the. mortgage and the purchase of the property’ at the sale, in and of these facts alone, create the relationship of landlord and tenant between the [lessee] and the [mortgagee].” 239 Ala. at 161, 194 So. at 194. The Court agreed with the mortgagee’s general point of law, but it stated that the particular facts of the. case removed it from the application'of that general rule. Specifically, the Court noted that, although a lease provision that stated that the agreement “was not only binding upon the parties but upon their respective successors .or assigns,” “without -more,, was not binding upon the mortgagee,” the lease also contained a clause that stated: “T, as mortgagee,, give my approval to this lease, without waiving any, rights held under first mortgage, but subject to such mortgage,”’ which was followed by the signature of the mortgagee. Id. The Court determined that the latter clause with,the mortgagee’s signature constituted consent that she would become “the successor” to the lessor if she foreclosed on the mortgage. Id. We have no such similar express acceptance by Wilcox Investment of responsibility for the leases when it purchased the condo project at the foreclosure sale.

The import of P & D’s argument that Wilcox'is a “successor” or “assign” under the leases' is that general rules of corporate and contract law do not apply in this situation. But § 35-8A-108, Ala. Code 1975, expressly provides:

“The principles of law and equity, including the law of corporations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.”

(Emphasis added.) According to those principles of law, Wilcox clearly is not an “assignee” or “successor” of Sea Pines under the leases. .Therefore, Wilcox is not liable on the obligation to pay rent under the leases on the basis of paragraph 10.

IV. Conclusion

Based on the foregoing, we conclude that Wilcox was not bound by the leases, and it therefore cannot be held liable for a refusal to pay rent under the leases. The trial court erred in concluding otherwise. This result pretermits any need to discuss Wilcox’s argument that the trial court awarded P & D a remedy to which it was not entitled under the leases. Oür decision also moots the issues presented by P & D’s cross-appeal as to whether the trial court erred in failing to award P & D: (1) past-due rent; (2) the actual value of the two units lost as a consequence of the alleged breach of the leases; and (3) attorney fees. In sum, the trial court’s judgment against Wilcox is reversed and P & D’s cross-appeal is dismissed.

1150025—REVERSED AND REMANDED.

1150052—APPEAL DISMISSED.

Stuart, Parker, Murdock, Shaw, Main, and Wise, JJ., concur.

Bryan, J., dissents.

      . This entity is identified in the complaint as Wilcox Communities, an EPCON Communi-ües Builder.

      . Wirtes had been Lee's attorney in a wrongful-death action filed following the death of Lee’s husband.

      . Wirtes explained:
      "I mean, frankly, I was footing the financial side of it in an effort to help Patty. Patty was working on commission at Roberts Brothers at Sea Pines. So when units would be sold, she would garner income but I was the one taking the risk principally on the personal guarantees [for the loans P & D secured to purchase the condominium units].”

      . Wirtes testified that "Phase I” in the leases referred to all 21 buildings of condominium units. He further explained that "the Sea Pines principals had an option to purchase an adjacent 40 acres and it was their hope and expectation that they would quickly sell these and then go on and essentially do another mirror development in Phase 2 but, of course, that never happened.”

      . Wilcox .does not contest this issue in its appeal,

      . Section 35-8A-304(c), Ala. Code 1975, provides, in part:
      “Unless otherwise provided in a mortgage instrument or deed of trust or other agreement creating a security" interest, in case of foreclosure of a security interest, ... of any units owned by a declarant or real estate in a condominium subject to development rights, a person acquiring title to all the real estate being foreclosed or sold succeeds to all special declarant rights related to that real estate held by that declarant, or only to any rights reserved in the declaration pursuant to Section 35-8A-215 and held by that declarant to maintain models, sales offices and signs.”

      . Similarly, in Meritage Homes of Arizona, Inc. v. Weston Ranch Property Owners Ass’n, Inc., (No. 1 CA-CV 11-0373) (Ariz.Ct.App. 2012) (not reported in P,3d), the question was whether a subsequent developer had been "assigned” the original developer’s declarant rights, including the right to appoint board members to the condominium community’s board of directors, when it purchased 51 of the 55 lots in the community in' a trustee's sale that followed the bankruptcy of the original developer. Neither Bank of Ravenswood nor Meritage Homes concerned whether the subsequent developers acquired contractual obligations of their predecessor developers.


author: PER CURIAM. MURDOCK, Justice

text:
    BUGS “R” US, LLC v. Autumn Willard MCCANTS.
    1150650
    Supreme Court of Alabama.
    November 18, 2016

      Amber M, Whillock of Starnes Davis Florie LLP, Birmingham; and W. Warren Butler and Jordan W Gerheim of Starnes Davis Florie LLP, Mobile, for appellant.
    Benjamin C. Maumenee, Silverhill, for appellee.
   PER CURIAM.

Bugs “R” Us, LLC (“BRU”), appeals from the Baldwin Circuit Court’s denial of its motion to compel arbitration in an action filed by Autumn Willard McCants against BRU alleging negligent and/or wanton termite inspection of a house she purchased. We reverse the judgment of the trial court and remand the case.

I. Facts

According to McCants, on November 6, 2014, she entered into an agreement with Adrian Johns and Myra Johns to purchase the property and residence located at 705 East Fifth Street in Bay Minette (“the property”). On January 13, 2015, BRU issued an “Official Alabama Wood Infestation Inspection Report” (“WIIR”), which indicated that an inspection had revealed no visible evidence of active or previous infestation of various organisms, including powder-post—wood-boring—beetles. The WIIR was signed by the BRU agent who performed the inspection on January 13, 2015. The document states that “[t]his report ... must be signed by the buyer [and] a legible copy of this signature page must be returned to the inspecting company by the person ordering the inspection.” The WIIR did not contain an arbitration clause. The WIIR is signed by McCants and dated January 16, 2015. McCants alleges that the Johnses paid for the WIIR inspection and report.

Also on January 13, 2015, BRU issued a “Termite Damage Protection Agreement” (“the termite contract”) for termite-control and protection services. The termite contract identifies McCants as the “customer.” McCants alleges that the Johnses also paid for the termite contract. The termite contract states that it is “[e]ffective with the date of initial treatment for one year thereafter.” The date of initial treatment, as indicated in the WIIR, was January 13, 2015. The termite contract is signed by a BRU representative and the signature is dated January 13, 2015. It is undisputed that the termite contract is also signed by McCants and that her signature is dated March 6, 2015. Just above the signature lines, the termite contract states: “The terms and conditions on the reverse side of this agreement including the mandatory arbitration agreement are part of this agreement.”

The reverse side of the termite contract contains the following arbitration clause:

“7. Mandatory Arbitration: Purchaser and Bugs ‘R’ Us agree that any claim, dispute or controversy (‘claim’) between them or against the other or employees, agents, or assigns of the other, and any claim arising from or relating to this agreement or the relationships that result from the agreement, including but not limited to any tort or statutory claim, shall be resolved by neutral binding arbitration by the American Arbitration Association, under the rules of the AAA in effect at the time the claim is filed (‘AAA rules’).... The decision of the arbitration shall be final and binding resolution of the claim. This arbitration agreement is made pursuant to a transaction involving interstate 'commerce and shall be governed by the federal arbitration act. 9 U.S.C. sections 1-16. Judgment upon the award may be entered in any court having jurisdiction. Neither party shall sue the other party with respect to any matter in dispute between the parties other than for the enforcement of the arbitration agreement or of the arbitrators’ award. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they chose to have any disputes decided through arbitration.
“8. Except as limited herein above, Bugs ‘R’ Us and customer understand and agree (1) that each of them is waiving rights to seek remedies in court, including the right to a jury trial .... ”

(Emphasis added.)

On March 6, 2015, McCants closed on the property and obtained a warranty deed from the Johnses. McCants alleges that she closed on the property in reliance upon statements made by BRU in the WIIR. As already noted, on the same date, March 6, 2015, McCants signed the termite contract. McCants alleges that after she moved into the property she discovered that the residence “had a severe infestation of powder post beetles and was severely damaged by that infestation.”

On October 22, 2015, McCants sued BRU in the Baldwin Circuit Court, alleging that BRU negligently and/or wantonly inspected the property and prepared and provided the WIIR, upon which she relied in purchasing the property, and that she subsequently discovered a severe infestation of wood-boring organisms that had caused significant damage to the property.

On January 28, 2016, BRU filed a motion to compel arbitration. BRU attached the termite contract, without any attachment, to its motion, and it submitted an affidavit from the owner of BRU, Robert Urias, who testified that BRU’s business involves interstate commerce. Urias did not mention the termite contract in his affidavit.

McCants filed three responses to BRU’s motion to compel arbitration, two of which are relevant here. In her first response, McCants noted that the front page of the termite contract contains the following sentence: “This agreement is void without an attached completed graph of the premises.” She further observed that the termite contract BRU attached to its motion to compel arbitration did not include a graph of the property. Consequently, McCants argued, the termite contract was void oh its own terms. McCants’s third response included her affidavit, in which she testified that she

“never talked with Bugs R Us or its employees until after closing. Bugs R Us issued the [WIIR] and also the Termite [contract] on 1/13/15 as a result of its dealings with Adrian and Myra Johns. Fifty two (52) days after issuance of the [WIIR] and the Termite [contract], [the Johnses] at closing purchased and paid defendant Bugs R Us for its services in issuing two documents to satisfy a requirement of the sale of the home to [McCants]: $75.00 [WIIR]; and $100.00 termite [contract], I, Plaintiff, was not obligated to and never paid defendant Bugs R Us to issue either the [WIIR] or Termite [contract]. On or about fifty two (52) days after [BRU] issued the termite letter, [I] bought the home on 3/6/2015 from [the Johnses] in reliance upon statements made by [BRU] in its 1/13/2015 [WIIR]. Until' 3/6/2015 after closing, I, Plaintiff, never owned or had any property interest in the home .... [I] denfy] that [I] ever negotiated with, or contracted with, or reached a meeting of the minds with Bugs R Us to issue a [WIIR] and/or a termite [contract]. I never agreed with Bugs R Us about anything. I, Plaintiff, suffered no detriment and had no claim against Bugs R Us on 1/13/15, 1/16/15, or on 3/6/15 until after closing.”

Qn February 15, 2016, BRU filed a reply to McCants’s responses to its motion to compel. BRU attached to its reply an attachment to the termite contract that consisted of a graph of the property and McCants’s signature dated March 6, 2015.

On February 23, 2016, the trial court entered an order that simply stated: “Motion to Compel Arbitration filed by Bugs R Us, LLC, is hereby DENIED.” BRU filed a timely appeal of that order.

II. Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or' legal issue to the substantial prejudice of the party seeking review. Ex parte Roberson, 749 So.2d 441, 446 (Ala. 1999). Furthermore:

“ ‘A motion to' compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to" compel ■ arbitration has been made and' supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n.1 (Ala. 1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala. 2002) (emphasis omitted).”

III. Analysis

Under the foregoing standard, BRU has the burden of proving the existence of an arbitration agreement and that the contract containing the arbitration agreement evidences a transaction affecting interstate commerce. BRU introduced an arbitration agreement that contains signatures of a BRU representative and McCants, and, through the uncontradicted affidavit testimony of BRU’s owner, BRU demonstrated the relation of the termite contract to interstate commerce.

McCants contends, however, that BRU did not meet its burden of proving the existence of an arbitration agreement because, she says, the termite contract was never introduced into evidence in the trial court. McCants notes that the termite contract was attached to BRU’s motion to compel arbitration but that it was not authenticated in accordance with Rule 44, Ala. R. Civ. P. In other words, BRU failed to present any testimony verifying the authenticity of the termite contract because the only testimony it produced concerned the interstate nature of the transaction underlying the contract. McCants argues that the same is true of the attachment to the termite contract containing a graph of the property that BRU attached to its reply in response to McCants’s opposition to the motion to compel arbitration. Nothing accompanies that document to authenticate it.

To this effect, McCants has filed with this Court a motion to strike BRU’s references to the termite-contract exhibits— defendant’s exhibits A and D—contained in the record. McCants asserts that she “moved the Trial Court orally during Motion to Compel Argument on 2/16/16 to strike Bugs R Us Exhibits A and D (Exhibit D was filed on 2/15/16) and it did.” Therefore, McCants contends, BRU should not be allowed to rely upon those exhibits on appeal.

The difficulty with McCants’s argument, as BRU observes, is that nothing in the record below indicates that McCants moved to strike BRU’s termite-contract exhibits or that the trial court granted such a motion. McCants complains that BRU did not order the transcript of the hearing on BRU’s motion to compel, which she says is the reason the record is devoid of the motion to strike, but BRU asserts that no court reporter was present for that hearing. Even assuming a transcript of the hearing exists, Rule 10(b)(2), Ala. R. App. P., provides that it was McCants’s responsibility to ensure that the transcript was included in the record if she deemed it necessary for the appeal. Without a record- of an objection from McCants in the trial court to BRU’s submission of the termite contract, McCants has waived any infirmity in the evidence.

In Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1 (Ala. 2007), ah arbitration case that involved a similar objection to a contract ’ that contained an arbitration clause, this Court explained:

“Rule 56(e), Ala. R. Civ. P., generally requires that ‘[sjworn or certified copies’ of documents referred to in an affidavit offered supporting or opposing a motion for a summary judgment be attached to the affidavit. However, if an affidavit or the documents attached to an affidavit fail to comply with this rule, the opposing party must object to the admissibility of the affidavit or the document and move to strike. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312-13 (Ala. 2001) (noting that a party must object to evidence submitted in support of a motion for a summary judgment that does not comply with Rule 56(e), Ala. R. Civ. P.); Chatham v. CSX Tranap., Inc., 613 So.2d 341, 344 (Ala. 1993) (‘A party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence.’). The copy of the purchase agreement submitted with Flanagan’s affidavit was not a certified copy. The Catos, however, did not object to or move to strike the purchase agreement when it was filed with Flanagan’s affidavit. Therefore, they waived any objection based on improper authentication of the purchase agreement. See Berry Mountain Mining Co. v. American Res. Ins. Co., 541 So.2d 4, 4-5 (Ala. 1989) (holding that a nonmovant who failed to move to strike unauthenticated documents submitted in support of a motion for a summary judgment waived objection on appeal as to the admissibility of the documents).

Id. at 4-5 (second emphasis added).

Because we have no record of MeCants’s objecting to the admissibility of the termite contract, we must consider it to be part of the record evidence. Accordingly, McCants’s motion to strike BRU’s references in its briefs to the exhibits to the termite contract is denied. We conclude that BRU has carried its burden of establishing the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.

The burden shifts to McCants to demonstrate that the supposed arbitration agreement is not valid or that it does not apply to this dispute. McCants presents arguments on both grounds. She argues that the arbitration agreement is not valid because it is void by its own terms in that a graph of the property is not attached to it. She argues that she is not the “purchaser” designated in the arbitration provision and so she is not bound under the language of that provision. She also contends that § 2 of the Federal Arbitration Act required enforcement of arbitration claims arising only out of the contract that contains the arbitration clause and that her claims arise out of the WIIR, not the termite contract. McCants relies upon Orkin Exterminating Co. v. Larkin, 857 So.2d 97 (Ala. 2003), for support of this latter argument.

Whatever merit those arguments may or may not have, under the arbitration provision in the termite contract it is not this Court’s responsibility to make determinations on those issues. This Court previously has explained:

“ ‘[T]he issue whether a party has waived the right to arbitration by its conduct during litigation is a question for the court and not the arbitrator.’ Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 14 (Ala. 2006). However, the general rule that the court and not the arbitrator decides whether a party has waived the right to arbitration has an exception: issues typically decided by the court will be decided by the arbitrator instead when there is “ ‘clear and unmistakable evidence’ ” of such an agreement in the arbitration provision. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (alterations omitted)); see also Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 14 (1st Cir. 2005) (citing First Options).”

Anderton v. The Practice-Monroeville, P.C., 164 So.3d 1094, 1098 (Ala. 2014) (footnote omitted and emphasis added). In An-derton, this Court determined that the incorporation into the arbitration provision of the commercial arbitration rules of the American Arbitration Association (“the AAA”) constituted clear and unmistakable evidence of the parties’ intent to submit issues of arbitrability to the arbitrator. See 164 So.3d at 1101-02. This Court reiterated this conclusion in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 976 (Ala. 2015):

“Like the arbitration agreement in Anderton [v. The Practice-Monroeville, P.C., 164 So.3d 1094 (Ala. 2014)], the arbitration provision in this case provides that any arbitration proceedings will be conducted ‘pursuant to the then-prevailing commercial arbitration rules of the American Arbitration Association.’ The relevant commercial arbitration rule, Rule 7(a), expressly provides, in its current form, that ‘[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.’ See Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1284 (Ala. 2008) (noting that we may take judicial notice of the commercial arbitration rules of the American Arbitration Association even when they do not appear in the record). Thus, pursuant to Rule 7(a), both the question of whether Federal Insurance has waived its right to enforce the arbitration provision and the question of whether the arbitration provision may be enforced against a nonsignatory such as Reedstrom have been delegated to the arbitrators, and the arbitrators, not the trial court, must decide those threshold issues.”

The arbitration provision in this case provides, in pertinent part: “[A]ny claim ... shall be resolved by neutral binding arbitration by the American Arbitration Association, under the rules of the AAA in effect at the time the claim is filed ....” Rule 7(a) of the AAA Commercial Rules provides: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or the arbitra-bility of any claim or counterclaim.” Rule 7(b) provides, in pertinent part: “The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” Therefore, the arbitration provision in this case shows an intent by the parties to submit issues of arbitrability to the arbitrator.

We conclude that BRU has met its burden of establishing the existence of an arbitration contract between the parties and that that contract evidences a transaction affecting interstate commerce. Furthermore, the arbitration provision dictates that the issues McCants has raised about the applicability of the Federal Arbitration Act to this dispute, whether her claims are subsumed under the arbitration provision, and whether she is bound by the arbitration provision must be submitted to the arbitrator for determination. Therefore, the trial court’s order denying BRU’s motion to compel arbitration is due to be reversed.

IV. Conclusion

McCants’S'motion to strike'BRU’s references to exhibits in the record is denied. BRU has met its burden in supporting its motion to compel arbitration, and the arbitration provision dictates that' issuesof arbitrability must be submitted to the arbitrator. The trial court’s order is reversed, and the case is remanded for proceedings consistent with this opinion.

MOTION TO STRIKE DENIED; REVERSED AND REMANDED.

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

Murdock, J., dissent's.

MURDOCK, Justice

(dissenting).

Per my dissent in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 979 (Ala. 2015), I do not believe that the language in the arbitration provision referencing the use of the American Arbitration Association’s Commercial Rules rises to the level of a “clear and unmistakable” agreement that the issue of arbitrability must be decided by the arbitrator rather than by the court. I therefore do not agree with the majority’s resolution of this appeal—consigning the arbitrability issues to the arbitrator. Instead, I am of the view that the trial court was correct to address these issues and that this Court should now take up the merits of the trial court’s decision to deny arbitration.

      . Rule 10(b)(2), Ala. R, App. P., provides, in pertinent part:
      "If the appellee deems that other parts of the proceedings should be included or that the entire proceeding should appear in the reporter's transcript, the appellee shall, within 7 days (1 week) after receipt of the transcript purchase order, pay the court reporter the estimated cost of transcribing that part of the proceedings the appellee has deemed nec- * essary to be included in1 the record .,.. ”

      “2This Court applies, by analogy, the practice under Rule 56, Ala. R. Civ. P., dealing with summary-judgment motions, to motions to compel arbitration. Ex parte Greenstreet, Inc., 806 So.2d 1203, 1207 (Ala. 2001).”

      . See Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1284 (Ala. 2008) (noting that this Court may take judicial notice of the commercial arbitration rules of the AAA even when they do not appear in the record).

      . We have not been asked to revisit our holdings in Anderton and Reedstrom,