author: PARKER, Justice.

text:
    COMPLETE CASH HOLDINGS, LLC v. Lola Mae POWELL
    1150536
    Supreme Court of Alabama.
    April 21, 2017 Rehearing Denied June 6, 2017
    Russell N. Parrish of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for appellant.
    Michael Forton of Legal Services Alabama, Huntsville, for appellee.
   PARKER, Justice.

Complete Cash Holdings, LLC ("Complete Cash"), appeals a judgment entered by the Barbour Circuit Court on a jury verdict in favor of Lola Mae Powell.

Facts and Procedural History

This case arises out of Complete Cash's repossession of Powell's 2002 Chevrolet Avalanche truck based on a forged title-pawn agreement. Complete Cash lends money to consumers by the use of deferred-presentment agreements and vehicle title pawns. Complete Cash is also a pawnbroker, as that term is defined in Ala. Code 1975, § 5-19A-2(4), which states, in pertinent part:

"Any person engaged in the business of lending money on the security of pledged goods left in pawn, or in the business of purchasing tangible personal property to be left in pawn on the condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time."

On October 1, 2011, Vakeela Brown, Powell's granddaughter, went to a Complete Cash storefront in Eufaula. Brown, without Powell's knowledge or permission, forged Powell's signature on two deferred-presentment agreements to borrow a total of $300 ($150 under each of the deferred-presentment agreements). Renata Green, an employee of Complete Cash and the manager of the Complete Cash store in Eufaula, signed the deferred-presentment agreements on behalf of Complete Cash. Under the terms of each of the deferred-presentment agreements, Complete Cash agreed to lend "Powell" $150 ($300 total) on October 1, 2011, and, in exchange, "Powell" agreed to present to Complete Cash two personal checks, each in the amount of $176.25 ($352.50 total), which Complete Cash would hold until the presentment date of October 31, 2011. On the presentment date, Complete Cash would cash Powell's personal checks, which would satisfy "Powell's" obligation to Complete Cash. In order to satisfy this condition of the deferred-presentment agreements, Brown stole two personal checks from Powell and forged Powell's signature on those checks. Of course, Powell was not obligated to make repayment under the deferred-presentment agreements because it is undisputed that Brown forged Powell's signature on the deferred-presentment agreements and on the personal checks given to Complete Cash.

In addition to being the manager of the Complete Cash store, Green was also a friend of Brown's and knew Powell personally. Green knew that Brown had forged Powell's signature on the deferred-presentment agreements and on Powell's personal checks. Brown testified that, at some time thereafter, she and Green decided to pawn the title to Powell's truck and to split the money procured from pawning the title. As a result, Brown testified that she and Green stole the title to Powell's truck to pawn it.

On October 27, 2011, Brown went to the Complete Cash store and forged Powell's signature on an agreement with Complete Cash entitled "Alabama Pawn Ticket" ("the title-pawn agreement"). Green signed the title-pawn agreement on behalf of Complete Cash. Under the terms of the title-pawn agreement, Complete Cash agreed to lend "Powell" $2,352.50, and "Powell" agreed to give Complete Cash a security interest in the title to the truck as collateral securing the amount borrowed. ''Powell'' also agreed to repay the amount borrowed plus a "finance charge" of $294.06, for a total repayment of $2,646.56, on November 26, 2011. The title-pawn agreement also permitted the repayment period to be extended for 30-day periods. The title-pawn agreement stated that the truck would become the property of Complete Cash if "Powell" failed to repay the amount owed under the terms of the title-pawn agreement.

Brown testified that Green satisfied the deferred-presentment agreements using some of the money Brown and Green had procured under the title-pawn agreement.

After the title-pawn agreement was executed, from October 27, 2011, until August 24, 2013, 19 payments were made on the title-pawn agreement totaling $2,133.75; the amount of the payments varied from $5 to $450. Ashley Newman, an employee of Complete Cash and Green's supervisor, testified that such a repayment history was not unusual for accounts held by Complete Cash. Brown testified that she "may have come in [to the Complete Cash store] and did [sic] one or two [of the payments], but the other[ payments] were made by [Green]." However, Green's employment with Complete Cash was terminated in August 2013 based on Green's failure to "collect a certain percentage a month." Newman testified that Green's employment was terminated because Green was "not doing her job." Newman further testified that the termination of Green's employment was not related to her fraudulent activity in regard to Powell; in fact, Newman testified that Complete Cash had no knowledge that Green had been engaged in any fraudulent activity at the time her employment was terminated. After Green's employment with Complete Cash was terminated, Green quit making payments on the title-pawn agreement; no payments were made on the title-pawn agreement after August 24, 2013.

On September 23, 2013, based on the fact that Powell had defaulted on the title-pawn agreement, Complete Cash sent its repossession agent, D&T Custom Automotive, LLC ("D&T"), a "repossession packet" requesting that D&T repossess Powell's truck.

On January 27, 2014, D&T repossessed Powell's truck. The same day, Jerome Anthony Rogers, Powell's nephew, drove Powell to the Complete Cash store to understand why Complete Cash had repossessed Powell's truck. Upon arriving at the Complete Cash store, Powell and Rogers spoke with April Scott, an employee of Complete Cash and the manager of the Complete Cash store who had been hired to replace Green. Scott agreed to speak with her supervisor about the matter.

Newman was Scott's supervisor. Newman testified that Scott spoke with her about Powell's account. Newman testified that, upon learning that Powell alleged that the title-pawn agreement had been created fraudulently, she thoroughly reviewed Powell's account. Newman testified that she found no signs of fraud with the title-pawn agreement. Specifically, Newman testified that the fact that Complete Cash actually had the title to Powell's truck naming Complete Cash as a lienholder and the payment history on the account indicated to her that the title-pawn agreement was not the result of fraudulent activity.

On February 18, 2014, Powell's counsel sent Complete Cash a letter demanding that Powell's truck be returned to Powell. In the demand letter, Powell's trial counsel informed Complete Cash that Powell's signature had been forged by Brown on the title-pawn agreement. Powell's trial counsel also requested that someone from Complete Cash contact him to discuss the matter further.

A few days after Powell's counsel sent the demand letter, Brandi Jackson, the manager of Complete Cash's legal department, telephoned Powell's counsel. Jackson testified that she informed Powell's counsel that Complete Cash had investigated Powell's account and determined that there was no fraudulent activity concerning the title-pawn agreement.

On February 27, 2014, Powell sued Complete Cash asserting claims of replevin, detinue, trespass to chattels, conversion, negligence, and wantonness. On June 4, 2014, Powell filed an amended complaint, adding D&T and Green as defendants and asserting numerous claims against Complete Cash, D&T, and Green. In addition to the claims Powell asserted against Complete Cash in her original complaint, Powell asserted that Complete Cash had violated the Alabama Pawnshop Act, § 5-19A-1 et seq., Ala. Code 1975, that Complete Cash had violated the Deceptive Trade Practices Act, § 8-19-1 et seq., Ala. Code 1975 ("the DTPA"), that Complete Cash had violated 15 U.S.C. § 1692f(6) of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("the FDCPA"), and asserted claims of fraudulent suppression and civil conspiracy. Powell asserted against D&T and Green claims of conversion, negligence, wantonness, fraudulent suppression, and civil conspiracy.

On June 18, 2014, Complete Cash filed an answer to Powell's first amended complaint, cross-claims against Green, and a third-party complaint against Brown.

On October 16, 2014, Complete Cash filed motions for default judgments against Brown and Green based on their failure to respond to the claims asserted against them by Complete Cash. On October 20, 2014, the trial court granted Complete Cash's motions for default judgments against Brown and Green but did not assess damages.

On July 17, 2015, Powell filed a motion for a summary judgment. On the same day, Complete Cash also filed a motion for a summary judgment or, in the alternative, for a partial summary judgment. On August 5, 2015, Complete Cash filed an amended motion for a summary judgment.

On August 17, 2015, just before the trial began, the trial court heard oral argument on the parties' summary-judgment motions. The trial court entered a summary judgment for Complete Cash on Powell's fraudulent-suppression and civil-conspiracy claims. The trial then commenced on the remaining claims against Complete Cash.

At the close of Powell's case-in-chief, Complete Cash filed a motion for a judgment as a matter of law ("JML") as to Powell's remaining claims, challenging each claim with specificity. Concerning Powell's claim that Complete Cash had violated § 1692f(6), Complete Cash argued that the FDCPA did not apply because, it argued, Complete Cash was not a "debt collector" as that term is defined in the FDCPA. The trial court entered a JML for Complete Cash on Powell's claims of detinue, trespass, violation of the Alabama Pawnshop Act, and Powell's claim that Complete Cash had violated the DTPA; the trial court denied Complete Cash's motion as to all other claims, including the claim asserting a violation of the FDCPA. The case was then submitted to the jury. The jury returned a verdict in favor of Powell.

On September 15, 2015, the trial court entered the following judgment on the jury's verdict:

"Issue having been joined, this matter came on for trial commencing on August 17, 2015 at the Barbour County Courthouse in Eufaula, Alabama. Thereupon came a jury of good and lawful citizens, to wit: Scotty Smith and eleven others, who being duly impaneled, sworn, and charged by the court according to law, before whom the trial of this cause was entered upon and continued from day to day and from time to time, and upon the 18th day of August, 2015, said jurors upon their oath did say:
" 'We, the Jury, find in favor of the Plaintiff, Lola Mae Powell, and against the Defendants, Complete Cash, LLC, et al[.], and assess damages as follows: Compensatory damages: Fifty Thousand Dollars ($50,000.00) Punitive damages: One Hundred Fifty Thousand Dollars ($150,000.00).'
"SPECIAL INTERROGATORY
" '1. Is the jury reasonably satisfied from the evidence in this case that the Defendant, Complete Cash, is a debt collector as defined by the Fair Debt Collection Practices Act and took non-judicial action to effect dispossession or disablement of property when there was no present right to possession of the property?
" 'Check One ---- Yes ---- No (The 'Yes' boxed was checked on the verdict form by the jury foreman.)'
"Therefore, judgment is entered in favor of the Plaintiff, Lola Mae Powell."

On September 17, 2015, Complete Cash filed a renewed motion for a JML or, in the alternative, for a new trial. Complete Cash adopted the arguments it had asserted in its original motion for a JML as to those claims submitted to the jury. Complete Cash did provide additional analysis of its argument that the FDCPA did not apply because, it argued, Complete Cash was not a "debt collector" as that term is defined in the FDCPA. Complete Cash further argued that, if the trial court found convincing Complete Cash's argument that the FDCPA did not apply, the judgment entered on the jury's general verdict had to be reversed because a "bad count" had been submitted to the jury.

On January 13, 2016, the trial court entered an order denying Complete Cash's renewed motion for a JML or for a new trial and assessing damages against Brown and Green. The trial court's order stated that Brown and Green "are hereby jointly and severely [sic] liable for the damages assessed [against Complete Cash] by the jury."

On February 3, 2016, Powell filed an "application for assessment of fees and costs" requesting attorney fees in the amount of $114,480 and costs in the amount of $3,114.56, which the trial court granted. On February 19, 2016, Complete Cash filed its notice of appeal.

Standard of Review

"We review as follows a trial court's ruling on a motion for a JML made after a verdict has been returned:
" 'The standard of review applicable to a ruling on a [renewed] motion for [a JML] is identical to the standard used by the trial court in granting or denying a motion for [a JML]. Thus, in reviewing the trial court's ruling on the motion, we review the evidence in the light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
" '....
" '... In ruling on a [renewed] motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' "
" American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala. 1993) (citations omitted)."

Lee v. Houser, 148 So.3d 406, 414 (Ala. 2013).

Discussion

Complete Cash argues that the trial court erred in denying its renewed motion for a JML as to Powell's claim that Complete Cash violated § 1692f(6) of the FDCPA. Complete Cash argues that the FDCPA does not apply because, it argues, Complete Cash is not a "debt collector" as that term is defined under the FDCPA. The United States Court of Appeals for the Eleventh Circuit stated the following concerning the definition of "debt collector" under the FDCPA for purposes of a claim brought under § 1692f(6) :

"The FDCPA imposes liability on 'debt collectors' who fail to comply with its provisions when collecting a 'debt.' 15 U.S.C. § 1692k. The FDCPA's restrictions apply only to 'debt collectors.' ... A 'debt collector' is defined, for the purposes of § 1692f(6), as 'any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts [or the enforcement of security interests], or who regularly collects or attempts to collect ... debts [owed or due or asserted to be owed or] due another....' Id. § 1692a(6); see Harris v. Liberty Cmty. Mgmt., Inc., 702 F.3d 1298, 1302 (11th Cir. 2012)."

Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1273 (11th Cir. 2014) (first bracketed language in original). See also Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015) (noting that the definitions of "debt collector" set forth in 15 U.S.C. § 1692a(6) are alternative).

Complete Cash argues that it does not satisfy either definition of "debt collector" in 15 U.S.C. § 1692a(6) because, it says, its principal purpose of business is not the collection of debts or the enforcement of security interests and because Complete Cash does not collect debts owed to third party or enforce security interests held by a third party. Instead, Complete Cash argues that the parties stipulated to the fact that "Complete Cash is in the business of lending money to consumers by way of deferred presentment agreements and title pawns." Complete Cash's brief, at pp. 27-28. Essentially, Complete Cash is arguing that it is a "creditor" under the FDCPA, not a debt collector. Complete Cash is correct.

In Davidson, the Eleventh Circuit stated that, "[u]nlike debt collectors, creditors typically are not subject to the FDCPA. See, e.g., Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000). A 'creditor' is 'any person who offers or extends credit creating a debt or to whom a debt is owed.' [ 15 U.S.C.] § 1692a(4)." 797 F.3d at 1313. In Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000), the case relied upon by the Eleventh Circuit in Davidson, the United States Court of Appeals for the Third Circuit stated:

"The FDCPA's provisions generally apply only to 'debt collectors.' Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000). Creditors-as opposed to 'debt collectors'-generally are not subject to the FDCPA. See Aubert v. American Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir. 1998) ('Creditors who collect in their own name and whose principal business is not debt collection ... are not subject to the [FDCPA].... Because creditors are generally presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill, their debt collection activities are not subject to the [FDCPA] unless they collect under a name other than their own.'); Staub [ v. Harris ], 626 F.2d [275,] 277 [ (3d Cir. 1980) ] ('The [FDCPA] does not apply to persons or businesses collecting debts on their own behalf.'); Hon. D. Duff McKee, Liability of Debt Collector to Debtor under the Federal Fair Debt Collection Practices Act, 41 Am. Jur. Proof of Facts 3d 159, at § 3 (1997) ... ('[I]nterestingly, the term "debt collector" does not include the creditor collecting its own debt.')."

225 F.3d at 403. In Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985), the United States Court of Appeals for the Fifth Circuit stated the above proposition even more definitively: "The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer's creditors.... See S. Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S. Code Cong. & Ad. News 1695, 1698." See also Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003) (quoting Perry with approval for the same proposition); Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106 (6th Cir. 1996) (same); and McCrimmon v. Mariner Fin. North Carolina, Inc., 154 F.Supp.3d 256, 258 (M.D.N.C. 2016) (" '[C]rediting institutions, such as banks, are not debt collectors under section 1692a(6)(A) because they collect their own debts and are in the business of lending money to consumers.' Davis v. Dillard Nat'l Bank, No. 1:02-cv-546 (M.D.N.C. June 4, 2003) (unpublished)." (citing Thomasson v. Bank One, Louisiana, N.A., 137 F.Supp.2d 721, 724 (E.D. La. 2001), and Meads v. Citicorp Credit Servs., Inc., 686 F.Supp. 330, 333 (S.D. Ga. 1988) )).

Complete Cash is a "creditor" under the FDCPA because it "offers or extends credit creating a debt." 15 U.S.C. § 1692a(4). Complete Cash's business is to extend credit to borrowers, which places those borrowers in debt. Complete Cash is Powell's creditor. Powell put on extensive evidence proving this fact. Further, Complete Cash collects its own debts and enforces its own security interests; Powell has not presented any evidence indicating that Complete Cash collects debt owed to others, enforces security interests held by others, or collects its own debt in a name other than its own.

Powell has offered no argument opposing Complete Cash's position that it is a creditor under § 1692a(4) of the FDCPA. Instead, Powell argues that,

"[w]hile an original creditor is generally not considered a debt collector per the FDCPA, there are instances in which an original creditor may still be liable as a debt collector under the FDCPA, if the creditor is shown to be in violation of the FDCPA, 15 U.S.C. § 1692f(6) as to enforcement of security interests."

Powell's brief, at p. 25. However, Powell has not cited any authority in support of her argument that a creditor may nevertheless be liable as a debt collector under the FDCPA "as to the enforcement of security interests." In order for a party to be liable under the FDCPA it must be demonstrated that the party is a debt collector under § 1692a(6). Powell has failed to demonstrate that Complete Cash is a debt collector. Further, after extensive research, we have not found any authority with similar facts explaining an instance where a creditor, like Complete Cash, has been held liable as a debt collector.

Viewing the facts in a light most favorable to Powell, as we must, we conclude that there is no evidence, let alone substantial evidence, indicating that Complete Cash is a debt collector under the FDCPA. Instead, the evidence establishes that Complete Cash is a creditor. Thus, as Powell's creditor, Complete Cash is not included within the definition of "debt collector" in the FDCPA. In Birster v. American Home Mortgage Servicing, Inc., 481 F.App'x. 579, 582 (11th Cir. 2012) (not selected for publication in the Federal Reporter ), a case relied upon by Powell, a panel of the Eleventh Circuit stated: "[W]hether an individual or entity is a 'debt collector' is determinative of liability under the FDCPA." The evidence is conclusive that Complete Cash is Powell's creditor, not a debt collector, which determines the issue of liability. Based on the foregoing, we conclude that the trial court erred in denying Complete Cash's renewed motion for a JML as to Powell's claim that Complete Cash violated 15 U.S.C. § 1692f(6).

Next, Complete Cash argues that "[t]he entire jury verdict is improper since the 'bad' count regarding the FDCPA went to the jury, and the jury found in favor of Powell by a general verdict." Complete Cash's brief, at p. 32. Complete Cash notes that, in answering the special interrogatory on the jury's verdict form in the affirmative, the jury expressly concluded that Complete Cash is a debt collector under the FDCPA. This demonstrates, Complete Cash argues, that the jury's verdict was based, at least in part, on Powell's claim that Complete Cash violated § 1692f(6), which, Complete Cash argues, is a "bad count" in that it is not supported by substantial evidence. Complete Cash is correct.

In Larrimore v. Dubose, 827 So.2d 60, 62-63 (Ala. 2001), this Court set forth the following applicable law concerning a "good count/bad count" situation, like that presented in this case:

"In Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala. 1981) (opinion on rehearing), this Court stated:
" 'On reconsideration, we believe the better view to be that if a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of these counts, he must challenge this by motion for [JML], specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count.'
"Furthermore, in Alfa Mutual Insurance Co. v. Roush, 723 So.2d 1250, 1257 (Ala. 1998), this Court stated what occurs when a properly presented motion for a JML preserves a challenge to a 'bad count':
" 'When a jury returns a general verdict upon two or more claims, as it did here, it is not possible for this Court to determine which of the claims the jury found to be meritorious. Therefore, when the trial court submits to the jury a "good count"-one that is supported by the evidence-and a "bad count"-one that is not supported by the evidence-and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. In such a case, a judgment entered upon the verdict must be reversed.'
"See also Ex parte Grand Manor, Inc., 778 So.2d 173 (Ala. 2000) ; St. Clair Fed. Sav. Bank v. Rozelle, 653 So.2d 986 (Ala. 1995) ; and South Cent. Bell Tel. Co. v. Branum, 568 So.2d 795 (Ala. 1990)."

Powell argues that Complete Cash failed to adequately challenge in its motions for a JML, as required by Aspinwall v. Gowens, 405 So.2d 134 (Ala. 1981), Powell's claim that Complete Cash violated § 1692f(6). Powell's argument is not persuasive. Complete Cash moved for a JML at the close of Powell's case, which coincided with the close of all the evidence. Complete Cash argued that it was entitled to a JML on all of Powell's claims. With regard to Powell's claim that Complete Cash violated § 1692f(6), Complete Cash specifically argued that the FDCPA did not apply because Complete Cash was not a debt collector. Although the trial court granted Complete Cash's motions for a JML as to some of Powell's claims against Complete Cash, the trial court allowed the remainder of the claims, including Powell's claim under the FDCPA, to be submitted to the jury. The jury then returned a general verdict for Powell, awarding her compensatory damages and punitive damages. The jury's verdict was general, but it also included a special interrogatory indicating that the jury specifically found that Complete Cash was a debt collector under the FDCPA. After the trial court entered a judgment on the jury's verdict, Complete Cash, in a renewed motion for a JML, renewed its arguments that there was insufficient evidence from which to conclude that Complete Cash was a debt collector under the FDCPA. Based on these facts, we conclude that Complete Cash adequately challenged Powell's FDCPA claim under Aspinwall.

We also conclude, based on the jury's express finding that Complete Cash was a debt collector under the FDCPA, that the jury's award of compensatory damages was based, at least in part, on Powell's claim that Complete Cash had violated § 1692f(6). Accordingly, there is no question that the jury's verdict was based on a "bad count." Of course, because the FDCPA does not provide for the award of punitive damages, we can also safely assume that the jury's verdict was based in part on Powell's claims of conversion or wantonness. This, however, does not save the jury's verdict because we know, based on the special interrogatory, that the jury based its general verdict in part on a bad count. For this reason, we must reverse the entirety of the compensatory-damages award.

Further, our reversal of the jury's compensatory-damages award mandates that we also reverse the jury's punitive-damages award. This Court stated in Ex parte Third Generation, Inc., 855 So.2d 489, 491 (Ala. 2003), "that in order to be consistent with due process, 'a jury's verdict [must] specifically award either compensatory damages or nominal damages in order for an award of punitive damages to be upheld.' [ Life Ins. Co. of Georgia v. Smith,] 719 So.2d [797,] 806 [ (Ala. 1998) ] (citing BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) )." See also Jenelle Mims Marsh, Alabama Law of Damages § 4:1 (6th ed. 2012) ("There also must be a finding by the jury of either compensatory or nominal damages before an award of punitive damages will be upheld."). The jury's compensatory-damages award having been reversed, there is no basis upon which the jury's punitive-damages award may be upheld. Therefore, the trial court's judgment must be reversed in its entirety and the cause remanded for a new trial. Because we are reversing on this issue, we pretermit consideration of all other issues raised on appeal.

REVERSED AND REMANDED.

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

      The $176.25 payment represented $150 in principal and $26.25 in interest. The annual percentage rate on the loans under the deferred-presentment agreements was 212.92%.

      The annual percentage rate on the loan under the title-pawn agreement was 150%.

      Brown also forged Powell's signature on all the necessary paperwork for Complete Cash to legally obtain and record its security interest in Powell's truck.

      Powell also filed, contemporaneously with her complaint, an "ex parte motion for emergency preliminary relief or temporary restraining order" in which Powell requested immediate possession of her truck during the pendency of the lawsuit. On March 3, 2014, the trial court granted Powell's request for immediate possession of the truck. The trial court later converted its order to a preliminary injunction. Pursuant to the trial court's order, Complete Cash returned the truck to Powell on March 14, 2014. On June 19, 2014, Powell "received the vehicle title [to her truck] from Complete Cash."

      On August 15, 2015, Powell and D&T filed a joint stipulation dismissing D&T as a party, which the trial court granted.

      We note that the issue of costs and attorney fees remained pending when Complete Cash filed its notice of appeal. In Wolfe v. JPMorgan Chase Bank, N.A., 142 So.3d 697, 698-99 (Ala. Civ. App. 2013), the Court of Civil Appeals stated:
      " '[A] decision on the merits' of the claims asserted by the parties is a " 'final decision' " even when 'there remains for adjudication a request for attorney's fees attributable to the case.' Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) ; see also In re Porto, 645 F.3d 1294, 1299 (11th Cir. 2011) ('[T]he Supreme Court has established a bright line rule that the issue of attorney's fees is always collateral to the merits, and a decision on the merits, even if the attorney's fees issue remains unresolved, is immediately appealable....'); and State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala. 2002) ('[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.')."
      (Footnote omitted.)

      Powell argues that Complete Cash has waived any argument pertaining to her claim asserted under the FDCPA because Complete Cash did not object to the trial court's jury instruction on Powell's FDCPA claim or to the inclusion of the special interrogatory on the jury's verdict form. Powell relies only upon Cochran v. Ward, 935 So.2d 1169 (Ala. 2006), in making this argument. The portion of Cochran relied upon by Powell concerns the preservation for appellate review of an alleged error in a verdict form submitted to the jury in that case. This Court held that, under Rule 51, Ala. R. Civ. P., a party must state the matter objected to and the grounds of the objection in order to preserve any alleged errors for appellate review. However, in the present case, Complete Cash has not alleged that there was error in the trial court's jury instructions or verdict form. Instead, Complete Cash argues that it was entitled to a JML under Rule 50, Ala. R. Civ. P. "To preserve its argument, [Complete Cash] was required to follow the mandates of Rule 50, Ala. R. Civ. P., which governs a JML. Contrary to [Powell's] contention, preservation of [Complete Cash's] argument does not require following the mandates of Rule 51, Ala. R. Civ. P., which governs objections to jury instructions." Cook's Pest Control, Inc. v. Rebar, 28 So.3d 716, 722 (Ala. 2009). This Court specifically stated in Cook's that it is not necessary for purposes of preservation for a party seeking to appeal a trial court's denial of that party's motion for a JML "to object to the trial court's jury instructions on the same grounds as set forth in its motions for a JML." 28 So.3d at 723. Complete Cash did not waive any argument concerning Powell's FDCPA claim. As Complete Cash explains in its reply brief, Complete Cash filed a motion for a JML concerning Powell's FDCPA claim, but the trial court denied Complete Cash's motion. Complete Cash states that it did, indeed, agree to the special interrogatory because "it was important for Complete Cash to understand how significant that claim was, and whether the jury's general verdict was due to a finding that Complete Cash is a debt collector as defined by the FDCPA." Complete Cash's reply brief, at p. 7. Throughout the course of these proceedings, Complete Cash has maintained the consistent position that it is entitled to a JML as to Powell's claim that Complete Cash violated § 1692f(6). Based on the above-quoted portions of Cook's, we conclude that Complete Cash did not waive any argument concerning this issue by not objecting to the trial court's jury instruction on the FDCPA or by agreeing to have the special interrogatory included on the jury's verdict form.

      As set forth above, the term "debt collector" is a statutorily defined term. Section 1692a(6) includes within the definition of "debt collector" one whose primary business is the collection of debts and/or the enforcement of security interests. Any reference throughout this opinion to the term "debt collector" contemplates one who enforces security interests.

      Of course, we recognize that the contract establishing the relationship between Powell and Complete Cash was fraudulently created; Complete Cash makes no assertion that Powell is liable under the title-pawn agreement. We state that Complete Cash is Powell's creditor solely for purposes of analyzing Powell's FDCPA claim, which requires us to look to the nature of Complete Cash's business and the relationship between Powell and Complete Cash.

      We note that Complete Cash argues on appeal that the trial court erred in denying its renewed motion for a JML as to Powell's wantonness claim; however, as further explained below, we need not address this argument because we have already determined that the jury's general verdict was based on a bad count.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CRANEWORKS, INC., et al. v. RPM CRANES, LLC, and Muhammad Wasim Ali
    Russell Brooks et al. v. RPM Cranes, LLC, and Muhammad Wasim Ali
    1150018 1150028
    Supreme Court of Alabama.
    June 16, 2017
    H. Thomas Wells III of Starnes Davis Florie LLP, Birmingham, for appellants CraneWorks, Inc., David Upton, and Steve Upton.
    Lynlee Wells Palmer of Harbuck Keith & Holmes LLP, Birmingham, for appellants Russell Brooks, Casey Markos, and Rick Yates.
    Submitted on appellants' briefs only.
   PER CURIAM.

CraneWorks, Inc. ("CraneWorks"), and its owners, David Upton ("David") and Steve Upton ("Steve"), and Russell Brooks, Rick Yates, and Casey Markos (all hereinafter collectively referred to as "the defendants") filed two appeals challenging the entry by the Jefferson Circuit Court ("the trial court") of a permanent injunction against them and in favor of RPM Cranes, LLC ("RPM"), and Muhammad Wasim Ali, the owner of RPM. We reverse the trial court's judgment and remand the case.

Facts and Procedural History

The basic facts underlying these appeals are well summarized in the "Findings of Fact" in the trial court's final order of August 25, 2015.

"Based on the information presented by the parties via affidavit and live testimony, the court makes the following findings of fact:
"A. The Creation of RPM
"The Plaintiff, Muhammad Wasim Ali ('Dr. Ali') , is the sole owner of RPM Cranes, LLC ('RPM'). Defendants Russell (Rusty) Brooks ('Brooks') and Rick Yates ('Yates'), along with RPM's current General Manager Patrick Watson ('Watson'), all of whom testified at the hearing, started RPM in 2008 with financial backing from Dr. Ali (who was not present at the hearing). Neither Dr. Ali nor Watson had any prior experience in or knowledge of the crane industry. By contrast, Brooks and Yates had many years of experience in the crane industry, having previously worked for both Birmingham Steel and CraneWorks. Brooks and Yates had many contacts in the crane industry and brought those contacts with them to RPM. Brooks served as RPM's Operations Manager and Yates was its Sales Manager.
"B. Brooks'[s] and Yates'[s] Employment Agreements
"When the company began, Brooks and Yates understood they would become equity owners of the company within five (5) years. Prior to the expiration of that five (5) year period, however, Dr. Ali demanded they either buy in to the company at a cost of one million dollars ($1,000,000.00) each or remain employees of the company. Without the resources to make such an investment, Brooks and Yates agreed to remain with RPM as employees. At that time, RPM presented them with employment agreements that contained restrictive covenants pertaining to competition.
"[RPM and Ali] attached copies of Brooks'[s] and Yates'[s] employment agreements to their Complaint as Exhibits B and C. The employment agreements included, inter alia, anon-competition/non-solicitation provision limiting Brooks and Yates from working for a competing business for a period of two years and prohibiting Brooks and Yates from soliciting RPM's customers served within twenty-four (24) months prior to the date their employment with RPM ended.
"The employment agreements also included RPM's commitment to provide employee benefits to Brooks and Yates in the same manner provided to all other employees. Watson testified that most RPM employees are union members and that RPM is obligated to make contributions to the union, on behalf of the union employees, for the employees' health and pension benefits. During his employment with RPM, Brooks was a union member and relied on RPM to make contributions to his health and pension plans via the union. At the request of RPM, Yates withdrew from the union in 2011. With his union withdrawal came RPM's responsibility (admitted by Watson on cross-examination) to pay for Yates'[s] health and pension benefits, in the same way RPM paid for Watson's health and pension benefits. RPM did not pay for Yates'[s] pension benefits for a period of nineteen (19) months-from August 29, 2011 through April 9, 2013-resulting in zero contributions to Yates'[s] pension for that entire period.
"C. Markos'[s] Employment With RPM
"Defendant, Casey Markos ('Markos'), was hired at RPM in 2008 as an oiler, later became a crane operator, and became a salesperson in 2013. Per Markos, Watson asked him to sign a non-compete agreement when Markos became a salesperson in 2013, and Markos declined. Watson testified that he witnessed Markos sign the agreement, but admits that neither he nor RPM have the original agreement bearing Markos'[s] signature. Instead, [RPM and Ali] have presented as Exhibit D to the Complaint a copy of an agreement that appears (even to Markos) to bear Markos'[s] signature. Markos testified that he does not know how his signature was affixed to the non-compete [agreement] and is emphatic that he did not sign the document.
"Watson admits that nothing was offered to Markos in exchange for signing the non-compete [agreement], and the purported agreement does not state that any consideration was provided. The agreement that Markos allegedly signed contains a different restriction than the one in Brooks'[s] and Yates'[s] employment agreements, and prohibits 'Employee' from working for any company 'engaged in the business of rental.' Exhibit D to the Complaint does not specify that Markos was restricted from working in the crane rental business. Like Brooks, Markos was a union member during his employment with RPM, relying on RPM to make contributions to the union for his health and pension benefits.
"D. Events Leading to the Resignation of Brooks, Markos, and Yates "In 2015, a number of incidents occurred that led Brooks, Markos, and Yates to believe that RPM was in financial and reputational disarray and to fear that the company would soon close its doors. The men testified (via live testimony and affidavit) that company credit cards were declined on a number of occasions, including credit cards needed to provide fuel for cranes that were located at existing job sites. Salespeople and operators used their personal credit cards to either fuel machinery or pay for overnight hotel stays while on out-of-town jobs. Salespeople were instructed not to spend money on company marketing (including lunches, a primary way salespeople maintain contact with their customers and learn of future crane opportunities).
"In March 2015, Dr. Ali was arrested on federal drug charges, and he was indicted the following month. As part of the indictment, some RPM assets and bank accounts were seized and/or frozen. On June 1, 2015, RPM filed for Chapter 11 bankruptcy protection, where [RPM] remains today.[ ] Dr. Ali's arrest and indictment, as well as RPM's bankruptcy, received media attention, and Brooks, Markos, and Yates received questions from concerned customers about these incidents.
"In mid-June 2015, Brooks, Markos, and Yates learned RPM had not made payments to the union for the health and pension benefits of any of RPM's union employees, including but not limited to Brooks and Markos, since at least February 2015. RPM admits that it did not make these payments despite its obligation to do so. Approximately six crane operators then resigned their employment with RPM. Brooks, Markos, and Yates knew that a lack of crane operators would result in an inability to service client crane needs. That fact, compounded with the financial problems RPM was experiencing (Yates'[s] last four paychecks were drawn from four different banks), as well as the reputational issues associated with Dr. Ali's arrest and indictment, and the company's bankruptcy petition, led Brooks, Markos, and Yates to feel they had no choice but to leave RPM. RPM had not made required payments to Yates'[s] pension plan, nor had it made required contributions to the union for Brooks'[s] and Markos'[s] health and pension benefits. Brooks, Markos, and Yates feared that the company's financial condition would cause it to close its doors at any moment, leaving them without a job and unable to pay their bills and support their families. These employees further believed their personal reputations in the crane industry had been and would continue to be damaged by their affiliation with RPM, and they needed to ensure that the customers with whom they had developed relationships over many years in the industry received proper service. Accordingly, Brooks and Yates submitted their resignations on June 16, 2015 and Markos submitted his resignation the following day. All three men were hired by CraneWorks, where Brooks and Yates had worked prior to starting RPM."

On July 15, 2015, RPM and Ali sued the defendants, alleging that Brooks, Yates, and Markos had violated their employment agreements by going to work for CraneWorks and that CraneWorks' hiring of Brooks, Yates, and Markos likewise violated those employment agreements. David and Steve were named as defendants by virtue of their ownership of CraneWorks. RPM and Ali sought monetary damages and injunctive relief.

Along with their complaint, RPM and Ali filed a motion for a temporary restraining order ("TRO") and a request for a preliminary injunction. Following an ex parte hearing on the motion, the trial court granted the request for a TRO on July 16, 2015. The order stated, in pertinent part, that "[t]he [d]efendants are hereby temporarily restrained and enjoined from contacting, in any manner whatsoever, any of the former or current clients of RPM." CraneWorks filed a motion to dissolve the TRO in which it observed, among other things, that counsel for RPM and Ali had informed counsel for CraneWorks that RPM and Ali did not intend to obtain a TRO against CraneWorks. RPM and Ali did not dispute that assertion.

On July 23, 2015, the trial court entered an order modifying the TRO to clarify that it did not apply to CraneWorks, David, or Steve but that it remained in place as to Brooks, Yates, and Markos. The trial court also set a date for a hearing on RPM and Ali's request for a preliminary injunction.

On August 19, 2015, the trial court held a hearing on the motion for a preliminary injunction in which it accepted evidentiary submissions and heard testimony from Patrick Watson, RPM's general manager, and from Brooks, Yates, and Markos. During the hearing, when counsel for CraneWorks indicated that he wanted to cross-examine Watson, counsel for RPM and Ali objected:

"[Counsel for RPM and Ali]: Your Honor, if I may, counsel represents CraneWorks.
"THE COURT: Is CraneWorks a party?
"[Counsel for RPM and Ali]: CraneWorks on this is no longer involved, because we did away with their TRO on them.
"THE COURT: So CraneWorks isn't being-is CraneWorks a party to the complaint?
"[Counsel for RPM and Ali]: To the complaint, yes, sir.
"THE COURT: All right. Well, they-
"[Counsel for RPM and Ali]: As far as that involves this at the last meeting we had, the order did away with them being involved with any of the TRO or the restraining order at all.
"THE COURT: Yeah. Response?
"[Counsel for CraneWorks]: Your Honor, if he wants to dismiss all claims against CraneWorks and the owners, the Uptons; then I don't need to be at this hearing. But right now we're being sued by this company. Our employees are currently being restrained from doing work for us.
"THE COURT: All right. Have you got questions concerning the TRO or preliminary injunction?
"[Counsel for CraneWorks]: I have a few follow-[up] questions for Mr. Watson.
"THE COURT: Go right ahead."

On August 25, 2015, the trial court entered the order from which we have already quoted the findings of fact. In the "Legal Analysis" portion of that order, the trial court reviewed each of the elements of a preliminary injunction under separate headings. The first heading states: "Plaintiffs Did Not Prove Irreparable Injury." In this section, the trial court observed:

"With respect to the enforcement of noncompetition agreements against a former salesperson, the Alabama Supreme Court has adopted a rebuttable presumption of irreparable injury where the employer can establish three prima facie elements: (1) the existence of a valid noncompetition agreement, (2) a protectable interest of the employer, (3) and a violation of the former employee salesperson's noncompetition agreement by 'actively competing with his or her former employer in the same geographic area.' Ormco [Corp. v. Johns ], 869 So.2d [1109,] 1118-19 [ (Ala. 2003) ]. Plaintiffs have not met this burden."

The trial court then examined each of the three prima facie elements of irreparable injury presumed to stem from a noncompetition agreement. The trial court concluded that RPM and Ali "have not demonstrated the existence of valid noncompetition agreements." With respect to Yates and Brooks, the trial court reasoned: "By failing to pay for Yates'[s] pension benefits and failing to make contributions to Brooks'[s] health and pension plans via the union, RPM breached the employment agreements with Brooks and Yates and did not provide the consideration necessary to support the agreement." As for the agreement with Markos, the trial court stated:

"Markos expressly denies signing the document attached as Exhibit D to the Complaint, and [RPM and Ali] have been unable to produce the original document.
"Even if Markos signed the document attached as Exhibit D to [RPM and Ali's] Complaint, it fails for lack of consideration. Not only does the agreement itself fail to list any consideration provided by RPM to Markos in exchange for the non-competition agreement, but both Markos and Watson confirmed that nothing was offered to Markos as an inducement to sign the agreement."

The trial court further concluded that the noncompetition agreement between Markos and RPM "violates Ala. Code [1975,] § 8-1-1, as a restraint on trade" because it was not limited to a geographic area and it prohibited Markos from working for any company "engaged in the business of rental," rather than restricting him from working for other "crane rental" businesses, which was the only type of rental services RPM offered.

As to the second element necessary for irreparable injury to be presumed based on a noncompetition agreement, the trial court concluded that RPM and Ali

"presented no evidence of any protectable interest. Indeed, [RPM and Ali] offered no testimony or other evidence that any of the customers served by the company were developed during [Brooks's, Yates's, and Markos's] employment with RPM, using RPM resources. The only testimony on this topic was from Yates, who, without cross-examination by [RPM and Ali], testified that he had preexisting contacts and customers that he brought with him to RPM, and that Yates and Brooks taught Dr. Ali and Watson about the crane business not vice versa. ... Here, [RPM and Ali] have not established that they have a protectable interest in customers served by Brooks, Markos, and/or Yates, nor that they have a unique or substantial right that warrants protection."

The trial court further noted that, "[e]ven if [RPM and Ali] had established irreparable injury, Brooks, Markos and Yates rebutted that assertion via evidence showing alternate reasons for such injury," namely "Ali's indictment, RPM's bankruptcy, or because the company no longer had sufficient crane operators to provide necessary services." The trial court also observed that "the undisputed affidavits submitted in this case demonstrate that customers in need of crane rental services often select their rental company based on the availability of a specific piece of needed equipment, not solely on a relationship with a particular company or salesperson."

Despite all the evidence against finding any protectable interest on the part of RPM and Ali, at the end of the trial court's discussion of irreparable injury, the trial court stated: "[I]t does stand to reason that since [Brooks, Markos, and Yates] helped to create RPM ..., then some of the clients were developed as a result of [Brooks's, Markos's, and Yates's] relationship with RPM .... Therefore, RPM ... does show a minuscule protectable interest."

Continuing with the next element required for establishing the need for a preliminary injunction, the trial court's heading states: "[RPM and Ali] Have an Adequate Remedy at Law." In this section, the trial court observed:

"The only testimony presented as to [RPM and Ali's] alleged damage was Watson's testimony that RPM allegedly lost 'millions' of dollars since the departures of Brooks, Markos, and Yates. [RPM and Ali] offered no proof of such loss, nor have they established that said loss was solely, or even in part, attributable to Brooks, Markos, and Yates'[s] departure. More importantly, if, as [RPM and Ali] claim, their only damage is monetary, then they have an adequate remedy at law and an injunction is not appropriate. ... To the extent [RPM and Ali] have been damaged in any other way, they have not offered evidence to so demonstrate, and have therefore failed to meet their burden of establishing an inadequate remedy at law."

The next heading in the trial court's order states: "[RPM and Ali] Do Not Have a Reasonable Chance of Success on the Merits." In this section of the order, the trial court reasoned that because of "the invalidity of Markos'[s] alleged non-competition agreement and RPM's breach of its own obligations under the other two employment agreements, [RPM and Ali] cannot demonstrate a reasonable chance of success on the merits."

The final heading of the trial court's order states: "The Hardship Imposed on Brooks, Markos, and Yates Would Unreasonably Outweigh the Benefit Accruing to [RPM and Ali]." In this section, the trial court noted:

"Brooks, Markos, and Yates testified that the crane industry is what they know and what they have spent their careers learning. Prohibiting them from working in the crane industry would, effectively, prohibit them from working, resulting in financial burdens on these men and their families. ... Defendants Brooks, Markos, and Yates live paycheck to paycheck. Their trade is a single industry. To prohibit them from working (particularly when there are alternative methods of redress for any potential violation of any valid agreement) would impose an undue burden that cannot be surpassed by [RPM and Ali's] articulation of any alleged monetary damage."

In spite of all the foregoing analysis, at the conclusion of its order the trial court entered a permanent injunction in favor of RPM and Ali and against the defendants. In pertinent part, the injunction provided:

"For the foregoing reasons, [RPM and Ali's] motion for preliminary injunction is hereby GRANTED, but only as follows:
"1. The Defendants are hereby permanently restrained and enjoined from contacting, in any way whatsoever, any of those clients which are now clients of RPM Cranes.
"2. This permanent injunction does not extend to enjoining or restraining the aforementioned clients from becoming clients of Crane[W]orks of their own volition; but, rather extends only to enjoin and restrain Crane[W]orks or its employees and assigns, from contacting in any way whatsoever, the aforementioned clients.
"3. The limitations this court previously imposed on Defendants Brooks, Markos, and Yates via the entry of a Temporary Restraining Order (and its amendment) are now expired and expressly lifted, except as delineated in Paragraph 2 above.
"....
"5. This case is hereby DISMISSED with prejudice. Costs taxed as paid."

(Capitalization in original.)

CraneWorks, David, and Steve, on the one hand, and Brooks, Markos, and Yates, on the other, filed separate timely appeals from the trial court's August 25, 2015, order. This Court consolidated those appeals for the purpose of writing one opinion.

Standard of Review

" 'The applicable standard of review [of an order granting injunctive relief] depends on whether the trial court entered a preliminary injunction or a permanent injunction. A preliminary injunction is reviewed under an abuse-of-discretion standard, whereas a permanent injunction is reviewed de novo.' TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241-42 (Ala. 1999) ; see also Smith v. Madison County Comm'n, 658 So.2d 422, 423 n. 1 (Ala. 1995)."

Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 271 (Ala. 2006). Although the trial court analyzed RPM and Ali's motion for an injunction as seeking a preliminary injunction, the restrictions placed upon the defendants constitute a permanent injunction. Therefore, our standard of review is de novo.

Discussion

The defendants' arguments are straightforward and compelling. The defendants observe that, in its order, the trial court concluded that none of the elements required for a preliminary injunction favored RPM and Ali. The trial court's order explained in detail that RPM and Ali failed to demonstrate 1) that they had sustained an irreparable injury; 2) that they had an adequate remedy at law; 3) that they had a likelihood of success on the merits; and 4) and that the hardships imposed by an injunction upon Brooks, Yates, and Markos "unreasonably outweigh[ed]" the benefits that would accrue to RPM and Ali. Every aspect of the trial court's order favored the defendants, yet the trial court granted RPM and Ali's request for an injunction. The trial court's order provides no basis for imposing any injunction-preliminary or permanent-against the defendants. See TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala. 1999), overruled on other grounds by Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1176 (Ala. 2008) ("The elements required for a preliminary injunction and the elements required for a permanent injunction are substantially similar, except that the movant must prevail on the merits in order to obtain a permanent injunction, while the movant need only show a likelihood of success on the merits in order to obtain a preliminary injunction. Pryor v. Reno, 998 F.Supp. 1317 (M.D. Ala. 1998).").

Moreover, concerning CraneWorks and David and Steve specifically, the actions of the trial court with respect to the TRO as well as the above-quoted statements by RPM and Ali's counsel during the course of the hearing on the motion for a preliminary injunction indicated that RPM and Ali did not intend to seek an injunction against CraneWorks, David, or Steve. Because no contractual obligation existed between RPM and CraneWorks, David, or Steve, there also was no legal basis for imposing an injunction against CraneWorks, David, or Steve.

Beyond all of this, the defendants observe that the injunction order itself fails to comply with Rule 65(d)(2), Ala. R. Civ. P., which provides:

"(2) Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."

Specifically, the defendants note that the order does not provide any reasons why an injunction should be imposed upon them; instead, it does the opposite by stating an extensive number of reasons why RPM and Ali's request for an injunction should fail. They also observe that the injunction is not specific in its scope. The order states that the defendants are "permanently restrained and enjoined from contacting, in any way, whatsoever, any of those clients which are now clients of RPM Cranes." The order fails, however, to specify which clients are included in the injunction. Trey Fulton, chief financial officer of CraneWorks, testified by affidavit that CraneWorks did not know who RPM's clients were or which of its clients were not also clients of CraneWorks. RPM and Ali introduced no evidence as to who RPM's clients were or whether it had developed any clients of its own that Yates and Brooks did not bring onboard as a result of their previous jobs with other entities. In other words, the injunction is broad and vague rather than "specific in [its] terms."

Conclusion

Based on the foregoing, we reverse the trial court's order and remand the matter for further proceedings consistent with this opinion.

1150018-REVERSED AND REMANDED.

1150028-REVERSED AND REMANDED.

Stuart, C.J., and Parker, Shaw, Wise, and Sellers, JJ., concur.

      We note that the defendants in their appellate briefs to this Court do not take issue with the trial court's summary of the facts and, in fact, quote extensively from it. RPM and Ali have not filed appellee's briefs in these appeals.

      Ali is a medical doctor.

      We note that the automatic-stay provision in the Bankruptcy Code, 11 U.S.C. § 362, applies only to "the commencement or continuation ... of a judicial ... action or proceeding against the debtor." (Emphasis added.) The action underlying these appeals was filed by RPM.


author: PER CURIAM. PARKER, Justice (concurring in part and dissenting in part). MURDOCK, Justice (concurring in part and dissenting in part).

text:
    RAINBOW CINEMAS, LLC, et al. v. CONSOLIDATED CONSTRUCTION COMPANY OF ALABAMA
    1160070
    Supreme Court of Alabama.
    June 16, 2017
    Kevin R. Garrison and Jade E. Sipes of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellants.
    Allen L. Anderson and Stacy L. Moon of F & B Law Firm, P.C., Huntsville, for appellee.
   PER CURIAM.

Rainbow Cinemas, LLC ("Rainbow"), Ambarish Keshani, and Harshit D. Thakker (hereinafter collectively referred to as "the defendants") appeal the Madison Circuit Court's order denying their motion to compel arbitration of a contract dispute with Consolidated Construction Company of Alabama ("CCC").

Facts and Procedural History

On April 14, 2015, Rainbow and CCC entered into a contract ("the contract"). In the contract, CCC agreed to provide specified services in constructing a movie theater for Rainbow. The contract consists of two documents. First, the parties signed the American Institute of Architects "Document A101-2007-Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum" ("the agreement"). The agreement incorporates by reference American Institute of Architects "Document A201-2007-General Conditions of the Contract for Construction" ("the general conditions").

The agreement contains an article entitled "Dispute Resolution." Section 6.1 in this article, entitled "Initial Decision Maker," states: "The Architect will serve as Initial Decision Maker pursuant to Section 15.2 of [the general conditions], unless the parties appoint ... another individual, not a party to this Agreement, to serve as Initial Decision Maker." The agreement identifies "Hay Buchanan Architects, P.C." as the architect. Section 15.2 of the general conditions, entitled "Initial Decision," sets forth the extensive process by which the parties are to obtain an initial decision on a claim. Section 15.2.1 of the general conditions requires that any claim arising from the contract "be referred to the Initial Decision Maker for initial decision." Section 15.2.1 further states that "an initial decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Initial Decision Maker with no decision having been rendered."

Section 6.2 of the agreement, entitled "Binding Dispute Resolution," states: "For any Claim subject to, but not resolved by, mediation pursuant to Section 15.3 of [the general conditions], the method of binding dispute resolution shall be ... Arbitration pursuant to Section 15.4 of [the general conditions]." Section 15.3.1 of the general conditions states that "Claims disputes, or other matters in controversy arising out of or related to the Contract ... shall be subject to mediation as a condition precedent to binding dispute resolution." Section 15.3.2 sets forth the mediation process.

Section 15.4 of the general conditions, entitled "Arbitration," states:

"§ 15.4.1 If the parties have selected arbitration as the method for binding dispute resolution in the [a]greement, any Claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the [a]greement. A demand for arbitration shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded.
"....
"§ 15.4.2 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
"§ 15.4.3 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the [a]greement shall be specifically enforceable under applicable law in any court having jurisdiction thereof."

The Construction Industry Arbitration Rules of the American Arbitration Association ("the AAA") in effect on the date of the agreement, which are referenced in § 15.4.1 of the general conditions, state, in pertinent part:

"R-9 Jurisdiction
"(a) 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.
"(b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."

During the course of CCC's performance under the contract, a dispute arose between Rainbow and CCC. On August 24, 2015, in accordance with the contract, CCC referred its claim to the initial decision maker, which was the architect, Hay Buchanan. In a letter dated October 30, 2015, counsel for CCC informed counsel for Rainbow that

"[t]he Initial Decision Maker was unable to issue any decision on the Claim within the required time period, partially or entirely as a result of interference by [Rainbow]. Notwithstanding that interference and lack of decision, and in an effort to continue to comply with the [c]ontract ..., CCC demands that [Rainbow] file for mediation ...."

On November 25, 2015, CCC made a request for mediation to be administered by the AAA. It appears that CCC's claim was not resolved by mediation. On July 6, 2016, CCC filed a demand for arbitration of its claim.

On July 28, 2016, after having already initiated the arbitration process, CCC sued the defendants. Among other things, CCC alleged that the defendants had fraudulently induced it into entering into the contract. Specifically, CCC alleged that the defendants knew that the contract required an initial decision maker and that the defendants also "knew they had not contracted for [initial-decision-maker] services from the [initial decision maker]." CCC alleges that the defendants "failed to inform CCC ... that Rainbow had not contracted with Buchanan to act as [the initial decision maker]."

On August 8, 2016, CCC filed a motion with the AAA requesting that the arbitration proceedings CCC had initiated be stayed.

On August 29, 2016, the defendants filed in the circuit court a motion to compel arbitration. The defendants argued that the validity of the arbitration clause in the contract "is something that must be decided by the arbitrator." On the same day, the defendants also filed a motion to dismiss CCC's complaint against Keshani and Thakker, arguing that CCC failed to state a claim upon which relief could be granted, Rule 12(b)(6), Ala. R. Civ. P., and that CCC failed to plead its fraud claim with particularity, Rule 9(b), Ala. R. Civ. P.

On October 17, 2016, the circuit court entered an order denying both the defendants' motion to compel arbitration and Keshani's and Thakker's motion to dismiss. The defendants appealed from the denial of their motion to compel arbitration. On November 8, 2016, the AAA denied CCC's motion to stay the arbitration proceedings.

Standard of Review

"Our standard of review of a ruling denying a motion to compel arbitration is well settled:

" ' "This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a 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 the contract evidences a transaction affecting interstate commerce. Id.'[A]fter 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.' Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing)." '
" Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) )."

SSC Montgomery Cedar Crest Operating Co. v. Bolding, 130 So.3d 1194, 1196 (Ala. 2013).

Discussion

It is undisputed that the defendants met their initial burden "of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce." SSC Montgomery Cedar Crest, supra. Thus, the burden then shifted to CCC to present evidence indicating that the arbitration clause was "not valid or does not apply to the dispute in question." SSC Montgomery Cedar Crest, supra.

CCC argued in the circuit court that the contract is not enforceable because, it says, the contract was induced by fraud. CCC argued that it was induced to enter into the contract, in part, based on the inclusion of the initial-decision process. The contract appointed Buchanan as the initial decision maker. However, CCC argued that it was the defendants' role to contract with Buchanan to act as the initial decision maker under the contract and that the defendants knowingly failed to do so. CCC further argued in the circuit court that the defendants suppressed this information and "knowingly and intentionally misrepresented the fact that Rainbow had contracted with Buchanan to act as [the initial decision maker]."

The defendants argue on appeal that "CCC failed to present substantial evidence of its fraud claim." Defendants' brief, at p. 20. As the defendants note, this Court has stated that, "[t]o avoid arbitration, '[a] party must provide substantial evidence of fraud in the inducement, particularly related to the arbitration clause.' " Massey Auto., Inc. v. Norris, 895 So.2d 215, 218 (Ala. 2004) (quoting Ex parte Perry, 744 So.2d 859, 863 (Ala. 1999) (plurality decision)); see also Harold Allen's Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 784 (Ala. 2000) (noting that a party arguing that it was fraudulently induced into signing an arbitration agreement must prove the alleged fraudulent inducement by substantial evidence). Of course, if a party must prove the alleged fraudulent inducement by substantial evidence, it follows that "[m]erely alleging fraudulent inducement as to the arbitration clause in an agreement" does not allow a party to avoid the arbitration agreement. Ex parte Perry, 744 So.2d at 863. The defendants argue that "CCC has not presented any evidence-let alone substantial evidence-of fraudulent inducement by the [defendants] related to the arbitration clause." Defendants' brief, at p. 21. CCC presents no argument to rebut this particular argument of the defendants.

The defendants are correct. The allegations in CCC's complaint are based on its assertion that the defendants failed to retain Buchanan as the initial decision maker under the contract, that the defendants misrepresented that fact to or suppressed that fact from CCC, and that CCC relied on this fact to its detriment. The defendants specifically denied CCC's allegations in their answer. CCC has not presented any evidence to support the allegations in its complaint. The only evidence submitted by the parties is the contract and the October 30, 2015, letter from CCC's counsel to Rainbow's counsel. This evidence does not indicate that the defendants failed to retain Buchanan as the initial decision maker or that Buchanan refused to make an initial decision on CCC's claim because he had not been retained by the defendants as the initial decision maker. We conclude that CCC has failed to provide substantial evidence in support of its fraud claim and, thus, has failed to demonstrate that the contract is not enforceable.

The defendants proved the existence of the contract, which contains the arbitration provision, and it is undisputed that the contract affects interstate commerce. The burden then shifted to CCC. CCC has failed to present any evidence, let alone substantial evidence, indicating that the contract is unenforceable. Accordingly, the circuit court erred in denying the defendants' motion to compel arbitration.

Although CCC did not raise any argument to rebut the defendants' argument discussed above, CCC does argue, for the first time on appeal, that the circuit court's denial of the defendants' motion to compel arbitration "is due to be affirmed because [the defendants] have failed to satisfy, and cannot now satisfy, conditions precedent necessary for requiring [CCC] to arbitrate its claims." CCC's brief, at p. 18. CCC notes that the contract requires that two conditions be satisfied before arbitration can be initiated. First, a party desiring to initiate arbitration proceedings must submit his claim to the initial-decision process. Second, assuming a controversy still exists after the initial-decision process, a party desiring to initiate arbitration must then submit his claim to mediation. Only after both the initial-decision process and mediation have failed may a party initiate arbitration proceedings under the contract. CCC argues that it is impossible for the defendants to satisfy those conditions precedent because the defendants did not retain Buchanan as the initial decision maker, thus foreclosing the initial-decision process. Accordingly, CCC argues, the circuit court properly denied the defendants' motion to compel arbitration.

The defendants argue that whether conditions precedent to arbitration have been satisfied is an issue to be decided by the arbitrator, not the courts. In so arguing, the defendants rely upon Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601 (Ala. 2009), in which this Court considered the same issue. In Brasfield, an owner contracted with a contractor to construct two structures. The contract between the owner and the contractor contained a dispute-resolution process nearly identical to the dispute-resolution process set forth in the contract. The contract in Brasfield required that, before a party could initiate arbitration, the party had to submit its claim to the architect for an initial decision. After exhausting the initial-decision process, the party then had to submit its claim to mediation. After exhausting mediation, the party could then initiate arbitration proceedings.

A dispute arose between the owner and the contractor. Instead of first seeking an initial decision or mediation, the contractor submitted its claim directly to the AAA for arbitration. The owner filed a lawsuit seeking to stay the arbitration proceedings, alleging that the contractor had failed to satisfy the conditions precedent to arbitration. The contractor filed a motion to compel arbitration, which the trial court denied. The contractor appealed.

On appeal, the contractor argued "that it is for the arbitrator, and not the court, to decide whether conditions precedent to arbitration in a contract have been met." Brasfield, 35 So.3d at 605. Relying on Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), this Court agreed: "[O]ur review of Howsam convinces us that [the owner's] and [the contractor's] contractual obligation to submit claims first to the architect for decision and then to mediate before invoking arbitration is the same kind of 'condition precedent to an obligation to arbitrate' that Howsam presumed would be decided by the arbitrator." Brasfield, 35 So.3d at 606. This Court concluded that "this case presents a question of procedural arbitrability that should be decided by the arbitrator." Id. at 608.

This case, like Brasfield, presents a question of procedural arbitrability that should be decided by the arbitrator. CCC's argument does not demonstrate that the circuit court properly denied the defendants' motion to compel arbitration.

CCC also argues on appeal, as it did before the circuit court, that, even if it is compelled to arbitrate its claims against Rainbow, CCC cannot be compelled to arbitrate its claims against Keshani and Thakker, who did not sign the contract in their individual capacities. CCC argued below that it has no contractual agreement with Keshani and Thakker and, thus, that it cannot be compelled to arbitrate its claims against them. The defendants argue that whether CCC must arbitrate its claims against Keshani and Thakker is an issue to be decided by the arbitrator, not the circuit court. In so arguing, the defendants rely on this Court's decision in Anderton v. Practice-Monroeville, P.C., 164 So.3d 1094 (Ala. 2014).

"In Anderton, ... we recognized the general rules that apply in arbitration cases providing that ... nonsignatory issues of the type raised by [CCC] should be resolved by the trial court before the underlying dispute is sent to arbitration if, in fact, arbitration is ultimately determined to be the proper forum for the dispute. However, we also recognized that these general rules have their exceptions. ...
" '....'
"... The Anderton Court ... addressed the nonsignatory issue ..., stating:
" 'The question whether an arbitration provision may be used to compel arbitration of a dispute between a nonsignatory and a signatory is a question of substantive arbitrability (or, under the Supreme Court's terminology, simply "arbitrability"). In First Options [of Chicago, Inc. v. Kaplan], 514 U.S. [938,] 943-46, 115 S.Ct. 1920, 131 L.Ed.2d 985 [ (1995) ], the Supreme Court analyzed the question whether an arbitration agreement binds a nonsignatory as a question of arbitrability. See also Howsam [v. Dean Witter Reynolds], 537 U.S. [79,] 84, 123 S.Ct. 588, 154 L.Ed.2d 491 [ (2002) ] (noting that in First Options the Supreme Court held that the question "whether the arbitration contract bound parties who did not sign the agreement" is a question of arbitrability for a court to decide). More recently, the United States Court of Appeals for the Eighth Circuit succinctly addressed the threshold issue before us. In Eckert/Wordell Architects, Inc. v. FJM Properties of Willmar, LLC, 756 F.3d 1098 (8th Cir. 2014), a nonsignatory sought to compel arbitration of a dispute with a signatory, as in this case. The court stated:
" ' "Whether a particular arbitration provision may be used to compel arbitration between a signatory and a nonsignatory is a threshold question of arbitrability. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L. Ed. 2d 491 (2002) (delineating potentially dispositive threshold issues between 'questions of arbitrability' and 'procedural questions'). We presume threshold questions of arbitrability are for a court to decide, unless there is clear and unmistakable evidence the parties intended to commit questions of arbitrability to an arbitrator. Id. at 83, 123 S.Ct. 588 ; Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., 516 F.3d 695, 701 (8th Cir. 2008). We have previously held the incorporation of the AAA [ American Arbitration Association] Rules into a contract requiring arbitration to be a clear and unmistakable indication the parties intended for the arbitrator to decide threshold questions of arbitrability.... Eckert Wordell's drafting of the architectural services contract here to incorporate the AAA Rules requires the same result."
" ' 756 F.3d at 1100. See also Knowles v. Community Loans of America, Inc. (No. 12-0464-WS-B, Nov. 20, 2012) (S.D. Ala. 2012) (not reported in F. Supp. 2d) ("A question as to 'whether the arbitration contract bound parties who did not sign the agreement' is one that 'raises a "question of arbitrability" for a court to decide.' " (quoting Howsam, 537 U.S. at 84 )).
" 'Like the Eighth Circuit, we have held "that an arbitration provision that incorporates rules that provide for the arbitrator to decide issues of arbitrability clearly and unmistakably evidences the parties' intent to arbitrate the scope of the arbitration provision." CitiFinancial Corp. v. Peoples, 973 So.2d 332, 340 (Ala. 2007). See also Joe Hudson Collision Ctr. v. Dymond, 40 So.3d 704, 710 (Ala. 2009) (concluding that an arbitrator decides issues of substantive arbitrability when the arbitration provision incorporated the same AAA rule as in the present case); and Wells Fargo Bank, N.A. v. Chapman, 90 So.3d 774, 783 (Ala. Civ. App. 2012) (same). The relevant AAA rule incorporated by the arbitration provision 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." Thus, although the question whether an arbitration provision may be used to compel arbitration between a signatory and a nonsignatory is a threshold question of arbitrability usually decided by the court, here that question has been delegated to the arbitrator. The arbitrator, not the court, must decide that threshold issue.'
" 164 So.3d at 1101-02. Thus, the law in Alabama is such that a trial court considering a motion to compel arbitration should resolve ... nonsignatory issues unless the subject arbitration provision clearly and unmistakably indicates that those arguments should instead be submitted to the arbitrator."

Federal Ins. Co. v. Reedstrom, 197 So.3d 971, 974-76 (Ala. 2015).

The contract incorporates the AAA's Construction Industry Arbitration Rules, which state 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." This is the same rule that was incorporated into the contract at issue in Anderton. Accordingly, we conclude, as we did in Anderton, that, "although the question whether an arbitration provision may be used to compel arbitration between a signatory and a nonsignatory is a threshold question of arbitrability usually decided by the court, here that question has been delegated to the arbitrator. The arbitrator, not the court, must decide that threshold issue." 164 So.3d at 1102.

Conclusion

The circuit court's order is reversed insofar as it denied the defendants' motion to compel arbitration and the cause remanded for the circuit court to enter an order granting the motion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Main, Wise, Bryan, and Sellers, JJ., concur.

Shaw, J., concurs in the result.

Parker and Murdock, JJ., concur in part and dissent in part.

PARKER, Justice (concurring in part and dissenting in part).

I concur with the main opinion insofar as it reverses the circuit court's order denying the motion to compel arbitration filed by Rainbow Cinemas, LLC, Ambarish Keshani, and Harshit D. Thakker, and insofar as it determines "that whether conditions precedent to arbitration have been satisfied is an issue to be decided by the arbitrator, not the courts." 239 So.3d at 575. However, for the reasons set forth in Justice Murdock's dissent in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 979-81 (Ala. 2015) (Murdock, J., dissenting), which I joined, I dissent from that portion of the main opinion holding that whether the individual defendants, nonsignatories to the contract, are subject to the arbitration provision in the contract is a decision for the arbitrator, not the courts.

Murdock, J., concurs.

MURDOCK, Justice (concurring in part and dissenting in part).

I concur in the portion of the main opinion holding that it is for the arbitrator rather than the court to decide the "procedural arbitrability" of the claims by Consolidated Construction Company of Alabama ("CCC") against Rainbow Cinemas, LLC. I dissent as to the portion of the main opinion holding that it also is for the arbitrator to decide the "substantive arbitrability" of the claims by CCC against the individual defendants.

The latter issue arises in the context of nonsignatories-the individual defendants-seeking to require a signatory-CCC-to submit its claims against them to arbitration. As a general rule, one who is not a signatory to an arbitration agreement cannot enforce that agreement. An exception to this rule exists in cases where the signatory is estopped from asserting that an arbitration agreement cannot be enforced by a nonsignatory. This Court has stated that,

"[i]n order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty [to an arbitration agreement], the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonparties ... to arbitration. See Ex parte Napier, 723 So.2d [49] at 53 [ (Ala. 1998) ]. [What] is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be 'intimately founded in and intertwined with' the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it."

Ex parte Stamey, 776 So.2d 85, 89 (Ala. 2000).

For the reasons explained by Justice Parker in his special writing, I agree that the decision as to the "substantive arbitrability" of the dispute between CCC and the individual defendants, under the above-stated standard, should be made by the court.

      This is the second contract between the parties. In the first contract, executed on August 19, 2014, CCC was to provide specified construction services to prepare a site location for the construction of the movie theater.

      This Court defined "procedural arbitrability" in Brasfield as follows:
      " '[P]rocedural arbitrability' ... involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L. Ed. 2d 491 (2002) (' " 'procedural' questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide" '); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L. Ed. 2d 898 (1964) (holding that an arbitrator should decide whether the steps of a grievance procedure were completed, where those steps were prerequisites to arbitration)."
      35 So.3d at 604-05.