author: PER CURIAM. LYONS, Justice SHAW, Justice

text:
    BEAUFORT ENGINEERING SERVICES, INC., d/b/a BES, Inc. v. BALDWIN COUNTY CATTLE & FAIR ASSOCIATION, INC.
    1071132.
    Supreme Court of Alabama.
    Sept. 30, 2009.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellant.
    Taylor D. Wilkins, Jr., and Marcus E. McDowell of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

COBB, C.J., and WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

LYONS, J., concurs specially.

SHAW, J., dissents.

LYONS, Justice

(concurring specially).

I write specially to respond to Justice Shaw’s dissenting opinion.

The dissenting opinion relies on two separate and independent theories. First, the dissenting opinion concludes that the dispute under the oral contract arose out of, or was related to, the written architecture contract between Beaufort Engineering Services, Inc., d/b/a BES, Inc. (“BES”), and Baldwin County Cattle and Fail’ Association (“the Fair Association.”). Second, the dissenting opinion concludes that the terms of the architecture contract apply to, and were incorporated as a part of, the subsequent oral contract.

Turning first to the conclusion that the oral contract arose out of, or was related to, the architecture contract and therefore that the arbitration clause in the architecture contract applies to a dispute regarding the oral contract, we do not here deal with arbitrability of tort claims arising out of a contract containing an arbitration clause such as was presented in Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1 (Ala.2007), and Koullas v. Ramsey, 683 So.2d 415 (Ala.1996). A distinction exists between such cases and cases such as this one, where the question is the arbitrability of claims in separate contracts where only one contract contains an arbitration clause. See Mirant Americas Energy Marketing LP v. 1st Rochdale Coop. Group, Ltd., 368 F.Supp.2d 679, 681-82 (S.D.N.Y.2005):

“While federal policy ‘strongly favors arbitration,’ and arbitration clauses should therefore be construed ‘as broadly as possible,’ Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19 (2d Cir.1995), ultimately, since arbitration is a contractual matter governed by the parties’ stated intent, a party cannot be required to submit a claim to arbitration without its contractual consent, express or implied, JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 171 (2d Cir.2004). The question, therefore, is whether the arbitration clause in the Credit Agreement can be construed as covering a dispute that does not arise out of an alleged breach of that agreement and does not require construction of that agreement.
“It is clear that, under some circumstances, an arbitration clause in a contract can bind parties to arbitration even when the claim is not breach of that contract. However, the Second Circuit has struggled to articulate a useful test of when those circumstances are found. See id. at 172-73 (acknowledging that tests do not yield ‘principled way’ of determining which claims should be arbitrated); Mehler v. Terminix Int’l Co. L.P., 205 F.3d 44, 50 (2d Cir.2000) (collecting various tests Circuit has stated, seemingly interchangeably). In some cases, the Circuit has required the claim to ‘implicate issues of contract construction or the parties’ rights and obligations under’ the contract containing the arbitration clause, Louis Dreyfus Negoce v. Blystad Shipping & Trading, Inc., 252 F.3d 218, 225 (2d Cir.2001); Collins & Aikman, 58 F.3d at 23, while in others it has required only that the claim ‘touch matters’ covered by the contract, a test which potentially sweeps a broader set of claims into arbitration, Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 846 (2d Cir.1987).
“On closer scmtiny, however, it is apparent that the cases employing the ‘touch matters’ test do not involve a choice between two contracts (as here), or, indeed, contractual claims at all. Instead, in these cases plaintiffs have sued in tort, alleging misdeeds by defen dants related to the making and performance of the contracts. See JLM Industries, 387 F.3d at 176 (antitrust claims alleging that defendants conspired to fix artificially high prices through a series of contracts were ‘arising out of the contract); Genesco, 815 F.2d at 845-47 (RICO claims alleging that suppliers engaged in conspiracy to overcharge and supply defective goods were ‘matters relating to the agreements between the parties’); see also Kerr-McGee Refining Corp. v. M/T Triumph, 924 F.2d 467, 468-69 (2d Cir.1991). Indeed, the ‘touch matters’ language originated in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 624 n. 13, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), which itself involved an alleged conspiracy to violate the Sherman Act.
“On the other hand, where, as here, the question is ivhether the arbitration clause in one contract should govern a claim alleging breach of a different contract, the Second Circuit consistently has asked whether the claim requires construction of the contract that contains the arbitration clause or otherwise implicates the parties’ rights and obligations under that contract. See Louis Dreyfus, 252 F.3d at 228-29; Collins & Aikman, 58 F.3d at 23; see also Lewis v. N.J. Sports Prods., Inc., [No. 02 Civ. 6505 SAS, March 12, 2003] (S.D.N.Y.2003) (collecting cases) [not reported in F.Supp.2d].”

(Emphasis added.)

Here the architecture contract predated the formation of the oral agreement. The architecture contract actually refers to the other contract as an event to occur in the future; no aid is thus available to BES under the rule requiring construction of contemporaneous agreements as a whole. Although the performance of the work in the alleged oral contract was a necessary predicate for the performance of the architecture contract, I see nothing in the record before us that requires construction of the architecture contract to resolve the dispute under the alleged oral contract.

Alabama law is no different than the rule expressed in Mirant Americas Energy Marketing LP. We stated in Koullas v. Ramsey, 683 So.2d at 418, dealing with whether to sweep tort claims under an arbitration clause that “in order for a dispute to be characterized as arising out of or relating to the subject matter of the contract, and thus subject to arbitration, it must at the very least raise some issue that cannot be resolved without a reference to or construction of the contract itself.” Here any reference to the architecture contract is nothing more than an acknowledgment of its existence and not a referral to its terms for the determination of any issues. Because no provision of the architecture contract requires interpretation in order to determine the issue of breach of the alleged oral contract, I cannot accept the dissenting opinion’s conclusion that the dispute under the oral contract arose out of, or was related to, the architecture contract.

The dissenting opinion concludes that the terms of the architecture contract apply to, and were incorporated as a part of, the oral contract as additional justification for reversal of the trial court’s judgment. The dissenting opinion notes the argument presented in the trial court that “‘[t]he arbitration provision and other material provisions of the [architecture contract] apply to the Oral Contract, and are incorporated therein by reference, with the exception of the compensation provisions thereof.’ ” 33 So.3d at 573. The dissenting opinion then points to the affidavit of William W. Bolton, president of BES, in which he stated: “ ‘[At that time], we entered into an oral agreement [with the Fair Association] that we would do that work at our customary hourly rates, but otherwise the terms of that oral agreement were the same as those of the [architecture contract].’ ” 33 So.3d at 573. The dissenting opinion then relies on this contention and the evidence in support thereof to argue for reversal of the trial court’s order denying arbitration.

Nowhere in BES’s principal brief to this Court is there any reference to the aforementioned testimony of Bolton featured in the dissenting opinion dealing with the incorporation of the terms of the architecture contract into the oral contract.

“It is fundamental that the parties have the duty to include in their briefs a statement of all facts relevant to the issues presented for this Court’s review. Indeed, Ala. R.App. P. 28 makes that duty crystal clear. Initially, the appellant’s brief must include ‘[a] .full statement of facts relevant to the issues presented for review, with appropriate references to the record.’ Rule 28(a)(7) (emphasis added). Rule 28(b) requires the appellee to conform to the requirements of subdivision (a)(7), if ‘the ap-pellee is dissatisfied with [the] statements as made by the appellant.’ Also, the argument of each party must contain ‘the contentions of the [party] with respect to the issues presented, and the reasons therefor, with citations to the ... parts of the record relied on.’ Rule 28(a)(10) (emphasis added). Where the appellee makes no correction or addition to the appellant’s statement of the facts, ‘[t]he statements made by appellant ... will be taken to be accurate and sufficient for decision.’ Taylor v. First Nat’l Bank of Tuscaloosa, 279 Ala. 624, 628, 189 So.2d 141, 144 (1966). Obviously, ‘ “this Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.” ’ Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914, 920 (Ala.2002) (quoting Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987)).”

Johnson v. Stewart, 854 So.2d 544, 551-52 (Ala.2002) (opinion on application for rehearing). We are entitled to assume that the facts set forth in BES’s principal appellate brief are “sufficient for decision.” As noted, BES’s principal brief does not refer to the aspect of Bolton’s testimony relied on in the dissenting opinion.

BES’s entire argument as to this issue in its principal brief to this Court is as follows:

“It is reasonable to assume that the parties’ reference in their [architecture contract] to a second agreement to be made later, involving the same underlying transaction, would otherwise include the same terms as their [architecture contract]. For that reason, we submit that the arbitration provision in the [architecture contract] should be deemed incorporated into the later Oral Contract.”

Only by completely ignoring the requirements of Rule 28(a)(10), Ala. R.App. P., that the argument of each party must contain “the contentions of the [party] with respect to the issues presented, and the reasons therefor, -with citations to the ... parts of the record relied on,” can reversal of the trial court’s judgment on this issue be justified. The dissenting opinion states in n. 2: “However, I offer the separate and independent theory that the terms of the architecture contract were incorporated into the oral contract only to respond to Justice Lyons’s extensive argument in his special writing regarding whether the arbitration provision in the architecture contract applies to the dispute in question.” 33 So.3d at 576. Of course, this “separate and independent theory” cannot afford a basis on which to reverse the judgment of the trial court without disregarding our rule that we will not reverse a judgment on arguments not made in the appellant’s principal brief. Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) (“Issues not argued in the appellant’s brief are waived.”). See also Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006) (“In [Capitol Chevrolet & Imports, Inc. v.] Payne[ 876 So.2d 1106 (Ala.2003) ], by not addressing the First Options [of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995),] clause issue, this Court was simply following the well-settled rule that we do not reverse a trial court’s judgment on a ground not raised on appeal.” (emphasis added)).

SHAW, Justice

(dissenting).

Beaufort Engineering Services, Inc., d/b/a BES, Inc. (“BES”), appeals from the denial of its motion to compel arbitration of the claims of the plaintiff, Baldwin County Cattle & Fair Association, Inc. (“the Fair Association”), in this declaratory-judgment action. For the reasons expressed below, I respectfully dissent from the Court’s no-opinion affirmance.

Facts and Procedural History

On October 10, 2005, BES and the Fair Association entered into a written contract (“the architecture contract”) in which BES agreed to render services in connection with the planning, design, and construction of improvements at a fairground facility located in Robertsdale, which included the construction of a stadium, a civic-center building, a restroom building, and a stable (“the project”). The architecture contract further stated: “[C]ivil design and survey to be handled under a separate contract.” The record indicates that “civil design and survey” refers to work in the design and layout of the project site, including the placement of the structures on the site, utilities, and landscaping, as well as the design of the drainage system and traffic control. This work had to be started before the construction of the project could be initiated. Because the nature and extent of the civil-design and survey work could not be accurately estimated, it was not included in the architecture contract. BES contends that the parties entered into an oral contract pursuant to which the Fair Association would be charged an hourly rate for the civil-design and survey work; the Fair Association appears to contend that no such oral contract was actually ever created, although it appears undisputed that the civil-design and survey work was in fact performed.

The architecture contract also contained an arbitration provision, which stated, in pertinent part: “Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration.” It further specified that arbitration would be performed pursuant to the rules of the American Arbitration Association (“the AAA”).

In June 2006, the parties purportedly executed an addendum to the architecture contract that provided, among other things, that, notwithstanding any provision in the architecture contract, BES would be paid a “total amount” of $723,634.

In January 2008, BES filed a demand for arbitration with the AAA against the Fair Association, alleging that the Fair Association had failed to pay for all the project work, including the civil-design and survey work. The Fair Association answered the demand, asserted a counterclaim, and argued that some of BES’s claims were not subject to arbitration.

Subsequently, the Fair Association filed an action seeking a judgment declaring that there was no oral agreement or contract to provide the civil-design and survey-work or, if the court concluded that an oral contract did exist, declaring the parties’ respective rights and obligations under that contract. The Fair Association’s complaint stated:

“2. BES claims [that] ... BES and [the Fair Association] entered into a separate oral agreement to provide civil design and survey work to [the Fair Association] incidental to the project.
“3. There is no contract for the above mentioned services and no agreement was entered into regarding the alleged separate contract. Notwithstanding, [BES] claims it is owed an hourly rate for the alleged contract in question.
“4. [BES] claims that the separate oral agreement should be arbitrated under the provisions of the separate project contract despite the fact that no oral contract exists and no interstate commerce was involved or contemplated.
“5. [The Fair Association] requests this Court determine that no contract exists or in the alternative, its duties, rights and obligations, if any, under the alleged separate oral agreement for civil design work related to the project.”

Additionally, the Fair Association filed a motion in the trial court seeking a stay of the pending arbitration proceedings; the trial, court granted the motion, but it limited the stay to the claims “related to the alleged oral contract regarding civil design work.”

BES filed what it styled as a motion to alter, amend, or vacate the order granting the motion to stay, pursuant to Rule 59(e), Ala. R. Civ. P., and also filed a motion to compel arbitration. The motion to compel stated, in pertinent part:

“2. That incidental and ancillary to the [architecture contract], BES and [the Fair Association] entered into a separate oral agreement (hereinafter referred to as the ‘Oral Contract’), which is referred to in Paragraph 1.1.4 of the [architecture contract], under the terms of which BES agreed to provide civil design and survey work to [the Fair Association] for ... the Project.
“3. That the Oral Contract and the claims arising under it are intimately founded in and intertwined with the [architecture contract] in that the services to be rendered by BES under the Oral Contract are exclusively devoted to the same Project which is the subject of the [architecture contract] and are interrelated to those services, being rendered by the same people, at the same time and place, in connection with the same Project and for the benefit of the same owner, as those being rendered under the [architecture contract].
“6. That the parties entered into an Addendum to the [architecture contract], ... which imposes a cap or limitation on the compensation to be paid to BES for work done on the community civic center and shelter, or ‘Coliseum,’ in the amount of Seven Hundred Twenty-Three Thousand, Six Hundred Fifty-Four Dollars ($723,654).
“7. That the Addendum was only applicable to the services provided by the [architecture contract] and did not apply to those provided by the Oral Contract and the services to be provided by the Oral Contract were not limited by the cap imposed by the Addendum. []
“8. That Paragraph 1.3.5 (Arbitration) of the [architecture contract] provides that ‘any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration’....
“9. That the claim, dispute, or other matter in question under the Oral Contract arises out of, is related to, and, in fact is a part of, the same Project which is the subject of the [architecture contract] and that the arbitration provision and other material provisions of the [architecture contract] apply to the Oral Contract, and are incorporated therein by reference, with the exception of the compensation provisions thereof
“12. That the claims which are admittedly subject to arbitration in the pending proceeding before the [the AAA] Proceeding, including those raised by Counterclaim filed by [the Fair Association], involve charges and credits for work done by BES on the Project and are so inextricably intertwined with and related to the claims for surveying and civil design work done by BES on the same Project that the two cannot practically be resolved in separate proceedings, brought in separate forums.”

(Emphasis added.)

The motion to compel was supported by certain documentary exhibits, as well as the affidavit of William W. Bolton, the president of BES. Bolton testified, among other things, that on behalf of BES he had both executed the architecture contract and entered into the oral contract. He stated:

“The reason that the [architecture contract] excluded civil design and survey work was that at the time we executed the [architecture contract], the nature and extent of those services was unknown and could not be estimated. Ultimately, we reached an agreement with [the Fair Association] that the civil design and survey work would be done by BES on a time and material basis at our customary hourly rates. At that time, we entered into an oral agreement with [the Fair Association] that we would do that work at our customary hourly rates, but otherwise the terms of that oral agreement were the same as those of the [architecture contract]. In fact, the anticipated oral agreement was referenced in Paragraph 1.1.4 of the [architecture contract].
“The civil design and survey work was absolutely related to and a part of the architectural and, engineering services rendered for the Project. The Project could not be built without the surveying and civil design work being first done....”

(Emphasis added.) Additionally, Bolton’s affidavit set forth testimony detailing certain purchases made in connection with the project that he says were made in interstate commerce.

The Fair Association filed a response to the motion to compel arbitration. In it, the Fair Association challenged whether BES had demonstrated that the alleged oral contract affected interstate commerce. Additionally, the Fair Association contended:

“9. BES also now claims the separate oral contract was intimately founded in and intertwined with the [architecture] contract as it was rendered by the same people, at the same time and place and interrelated to the services provided by BES ... essentially that BES was an indispensable party.
“10. This argument is flawed in that, upon information and belief, a Gulf Shores architecture firm actually provided the initial set of plans for the civil design. The name of the firm in Gulf Shores is not known at this time to the [Fair Association].
“11. Therefore, it is impossible for BES to claim that its services were indispensable or so intertwined as to be a part of the initial written agreement when in fact, it did not do the initial work.
“12. Additionally, nothing prevented the [Fair Association] from hiring an outside firm to do civil design.”

No evidentiary exhibits were filed in support of the assertions found in the Fair Association’s response.

After a hearing, the trial court denied both the motion BES styled as a motion to alter, amend, or vacate and the motion to compel arbitration. BES appeals from the denial of its motion to compel arbitration.

Discussion

On appeal, our review is de novo. Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). BES’s burden on its motion to compel is as follows:

“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. ‘[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.’ ”

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (citation and emphasis omitted) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing)).

I believe that BES’s motion to compel meets the burden set forth above. BES, through Bolton’s affidavit, proved “the existence of a contract calling for arbitration” — the architecture contract — and proved that the “contract evidences a transaction affecting interstate commerce.” The burden thus shifted to the Fair Association to show that the arbitration provision “d[id] not apply to the dispute in question.” I do not believe that the Fair Association met its burden in that regard.

BES argues on appeal that it is undisputed that there is no challenge to the validity of the architecture contract — both parties are participating in the arbitration of disputes under it. (BES’s brief, at 18.) BES contends that “[t]he only issue raised by [the Fair Association] is whether the Oral Contract subsequently entered into between BES and [the Fair Association] is covered within the scope of the arbitration provision contained within the [architecture contract].” (BES’s brief, at 18.) BES thus states the issue on appeal as follows: “Whether a dispute involving an oral agreement which arises out of, is related to, and the existence of which is referenced in a written agreement containing a broad arbitration clause, is arbitra-ble.”

Our caselaw requires this Court to interpret the scope of an arbitration provision broadly:

“ ‘In interpreting an arbitration provision, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” ’ The Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 927 (Ala.2007) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (emphasis omitted). Indeed, ‘ “a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” ’ Id. (quoting Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)) (emphasis omitted). ‘While, “as with any other contract, the parties’ intentions control, ... those intentions are generously construed as to issues of arbitrability.” ’ Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234, 237 (Ala.2006) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).”

Kenworth of Mobile, Inc. v. Dolphin Line, Inc., 988 So.2d 534, 545 (Ala.2008).

As BES notes, the architecture contract evidences an agreement by BES and the Fair Association to submit to arbitration any dispute “arising out of or related to” the architecture contract. “The term ‘arising out of or relating to’ has a broad application.” Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1086 (Ala.2004). The undisputed testimony indicates that the architecture contract did not contain the terms of the civil-design and survey work because the extent of that work was unknown at the time the architecture contract was executed, that the civil-design and survey work was necessary for the project, and that none of the work contemplated by the architecture contract could be performed until the civil-design and survey work was completed. This evidence demonstrates that the civil-design and survey work is a necessary and required part of the undertaking described in the architecture contract — the project. Thus, this work, and any agreement for its performance, must necessarily “arise out of’ or be “related to” the architecture contract. Given that doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration, Ken-worth, supra, I would hold that the dispute related to the civil-design and survey work in this case arises out of or is related to the architecture contract and, therefore, should be submitted to arbitration.

Additionally, BES argues on appeal that “[t]he arbitration provision of the [architecture contract] should be deemed incorporated by reference into the subsequent Oral Contract.” (BES’s brief, at 24.) According to Bolton’s affidavit, because the nature and extent of the civil-design and survey work could not be estimated at the time the parties executed the architecture contract, it was necessary for the architecture contract to provide that the parties would “later agree on those services in a separate contract. That was subsequently done by oral agreement....” (BES’s brief, at 25.) BES thus argues that “[i]t is reasonable to assume that the parties’ reference in their [architecture contract] to a second agreement to be made later, involving the same underlying transaction, would otherwise include the same terms as their [architecture contract].” (BES’s brief, at 25.) Indeed, BES states this point in paragraph 9 of the motion to compel: “[T]he arbitration provision and other material provisions of the [architecture contract] apply to the Oral Contract, and are incorporated therein....” This argument is supported by Bolton’s testimony, to the effect that “we entered into an oral agreement ... that we would do that work at our customary hourly rates, but otherwise the terms of that oral agreement were the same as those of the [architecture contract]. In fact, the anticipated oral agreement was referenced in Paragraph 1.1.4 of the [architecture contract].”

In sum, BES argued in its motion to compel that the dispute regarding the oral contract arose out of, or was related to, the architecture contract, and that the terms of the architecture contract apply to, and were incorporated as a part of, the oral contract:

“9. That the claim, dispute, or other matter in question under the Oral Contract arises out of, is related to, and, in fact is a part of, the same Project which is the subject of the [architecture contract] and that the arbitration provision and other material provisions of the [architecture contract] apply to the Oral Contract, and are incorporated therein by reference, with the exception of the compensation provisions thereof.”

This argument is repeated on appeal, where BES contends (1) that the dispute involving the oral agreement “arises out of, is related to, and the existence of which is referenced in” the architecture contract, BES’s brief, at 4, (2) that “[t]he arbitration provision of the [architecture contract] should be deemed incorporated by reference into the subsequent Oral Contract,” BES’s brief, at 24, and (3) that “[i]t is reasonable to assume that the parties’ reference in their [architecture contract] to a second agreement to be made later, involving the same underlying transaction, would otherwise include the same terms as their [architecture contract],” BES’s brief, at 25. Finally, these assertions are supported and explained by Bolton’s undisputed evidence, where he testified that the civil-design and survey work was related to the project and states explicitly that “the terms of that oral agreement were the same as those of the [architecture contract].”

Because the undisputed evidence indicates that the dispute in this case arose out of and is related to the architecture contract, which contains an arbitration clause, and that any oral contract further contained the “same” terms, I cannot say “with positive assurance” that the “broad[ly] applied]” phrase “arising out of or relating to” is “not susceptible of an interpretation that covers the asserted dispute” in this case. I must “generously construe! ]” this phrase, and resolve any doubts I may have “in favor of arbitration.” Kenworth, 988 So.2d at 545, Unum Life Ins., 897 So.2d at 1086. Therefore, I would hold that the dispute is within the scope of the arbitration provision in this case and further hold that the trial court erred in denying BES’s motion to compel.

        . It appears from this portion of the motion to compel that BES believed that the Fair Association claimed that the addendum to the architecture contract applied to the fees paid for the civil-design and survey work. However, the record before us does not elaborate on this issue.

      . Justice Lyons implies that, in pointing to Bolton's testimony that the terms of the alleged oral agreement were the same as those of the architecture contract, which testimony is not explicitly cited in BES's brief, I "completely ignore" Rule 28, Ala. R.App. P., requiring an appellant to cite authority and evidence supporting its arguments. However, I offer the separate and independent theory that the terms of the architecture contract were incorporated into the oral contract only to respond to Justice Lyons’s extensive argument in his special writing regarding whether the arbitration provision in the architecture contract applies to the dispute in question. Justice Lyons’s argument was not relied upon by the Fair Association — and none of his authorities were cited — either in the trial court or on appeal, even though it was the Fair Association’s burden in the trial court to show that the arbitration provision proffered by BES did not apply to the dispute in this case.
      This Court may affirm a trial court's judgment for reasons raised for the first time on appeal, and Justice Lyons is free to identify such reasons in this case. In fact, I agree with the general principle expressed in the caselaw from the second circuit he has cited indicating that parties to multiple contracts should not be required to arbitrate a dispute under one contract simply because another contract between the parties contains a broad arbitration provision. However, I point out Bolton’s testimony to demonstrate that BES could show evidence in the record to respond to these new arguments, which it has not had the opportunity to do.

      . The Fair Association also argues on appeal that BES failed to demonstrate that the oral contract affected interstate commerce. BES, however, argues that the dispute should be arbitrated under the terms of the architecture contract. It is clear from Bolton’s affidavit that the project included the purchase of components, equipment, and appliances from out-of-state vendors. In the context of the Federal Arbitration Act, the Supreme Court has held that the term "affecting commerce” signals "the broadest permissible exercise of Congress’ Commerce Clause power” and that "the Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    BISHOP STATE COMMUNITY COLLEGE v. Angelo ARCHIBLE Bishop State Community College v. James Soleyn.
    2070379 and 2070670.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2008.
    Certiorari Denied (as to Bishop State Community College) Dec. 12, 2008 Alabama Supreme Court 1080191.
    Judgment reversed, Ala., 33 So.3d 584, on remand to, Ala.Civ.App., 33 So.3d 588.

      David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellant.
    Henry H. Caddell of Thiry & Caddell, Mobile, for appellee Angelo Archible.
    J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; and L. Daniel Mims, Mobile, for appellee James Soleyn.
   MOORE, Judge.

In these consolidated appeals, we consider the notice provision of Ala.Code 1975, § 36-26-103, as amended by Ala. Acts 2004, Act No. 2004-567, § 1. On August 1, 2007, Bishop State Community College issued letters of intent to terminate the pay and employment of Angelo Archible and James Soleyn. Subsequently, Bishop State terminated the employment of Archible and Soleyn (sometimes hereinafter referred to collectively as “the employees”) based on the reasons set out in the letters. In addition, Bishop State terminated the pay of the employees on the ground that the acts justifying their terminations constituted moral turpitude. The employees contested their terminations and requested post-termination hearings pursuant to the Fair Dismissal Act, Ala.Code 1975, § 36-26-100 et seq. Both cases were ultimately dismissed by the respective hearing officer assigned to each case on the ground that Bishop State had failed to properly notify the employees of the reasons for their terminations in violation of Ala.Code 1975, § 36-26-103(a), and due process. Bishop State timely requested appellate review in both cases, which this court granted on February 26, 2008, and April 29, 2008, respectively.

The Facts in Appeal No. 2070379

On August 1, 2007, James Lowe, Jr., the interim president of Bishop State, issued a letter addressed to Archible. In that letter, Lowe stated:

“The purpose of this correspondence is to inform you (1) that I intend to terminate your employment with [Bishop State], and (2) that I intend to terminate your compensation on the basis of moral turpitude in accordance with the Fair Dismissal Act....
“The termination of your employment with Bishop State is proposed for the following reasons as authorized by Code of Alabama (1975), § 36-26-102: failure to perform your duties in a satisfactory manner, immorality, and/or other good and just causes. The facts which support my decision to terminate your employment with Bishop State are as follows:
“You committed financial improprieties in relation to the awarding of financial aid and scholarships.”

The letter continued:

“The Fair Dismissal Act requires that pay be provided to employees until a hearing officer affirms the decision to terminate his or her employment, except in cases involving moral turpitude. Ala. Code § 36-26-103(b). Your conduct described above which forms the basis of my intent to terminate your employment with Bishop State rises to the level of moral turpitude. Therefore, I intend to terminate your compensation from Bishop State.”

The letter proceeded to notify Archible of a pre-termination conference to be held on August 29, 2007, to provide him an opportunity to discuss Bishop State’s proposed termination. The letter advised Archible that if he wanted the meeting to take place, he needed to file a request within 15 days after the date he received the letter.

On September 10, 2007, Lowe wrote a second letter to Archible, stating, in pertinent part:

“Since I did not receive a notice from you requesting a pre-termination conference within 15 days of your receipt of my August 1, 2007 letter to you notifying you of my intent to terminate your employment and compensation from [Bishop State], I assume that you do not wish to meet with me to discuss your proposed termination. Therefore, after much careful deliberation, you are hereby given notice of my decision to terminate your employment and compensation from Bishop State for the reasons set forth in my August 1, 2007 letter to you.”

The letter further informed Archible of his right to contest his termination by filing a written notice within 15 days.

Archible exercised his right to contest his termination. Thereafter, the parties selected a hearing officer. On October 22, 2007, Archible filed a motion to stay further proceedings regarding his contest of the termination. Archible asserted in that motion that criminal charges “directly related to the alleged grounds for termination of his employment in the above styled case” were pending against him and 25 other Bishop State employees but that those charges had not yet been presented to a grand jury. Archible’s criminal attorneys had advised Archible against testifying in the termination hearing until his criminal matters had been resolved. Ar-chible requested that the hearing be stayed in order to assure that he would not incriminate himself by testifying in the termination hearing. Based on that motion, and Bishop State’s acquiescence, the hearing officer stayed the hearing.

Eleven days later, on November 2, 2007, Archible filed a “Motion to Reinstate Pay for [Bishop State’s] Failure to Provide Due Process.” In that motion, Archible argued that Bishop State had not provided him “a short and plain statement of the alleged facts and charges against him” as required by the Fair Dismissal Act, see § 36-26-103(a), and by constitutional due process. Archible requested the hearing officer to order Bishop State to reinstate his pay and to provide the required statement of facts supporting its reasons for terminating Ar-chible’s employment. Bishop State responded on November 16, 2007, that its August 1 and September 10, 2007, letters had complied with the notification provisions of the Fair Dismissal Act and that Archible had acknowledged in his motion to stay that his employment and pay was being terminated based on the same facts for which he was under criminal investigation.

On January 4, 2008, the hearing officer issued a 15-page decision in which he concluded that the purpose of the “short and plain statement” provision contained in § 36-26-103(a) is to “simply place the employee on notice of the circumstances and the nature of the activities of his alleged violations.” The hearing officer decided that the notice need not be as detailed as “charges and specifications,” but must be sufficient to “create a material and clear ‘[b]urden of [p]roof for the Employer and an equally material and clear ‘[position of [d]efense’ for the [e]mployee,” Based on that understanding, the hearing officer concluded that the notice provided by Bishop State was insufficient to fairly apprise Archible of the factual basis for his termination. The hearing officer ordered Bishop State to reinstate Archible with backpay and benefits until such time as the termination process was reinitiated with an appropriate notice.

Bishop State filed a motion on January 18, 2008, requesting that the hearing officer clarify whether he had dismissed the entire case or had simply ruled that Bishop State must amend its notice. The hearing officer issued a ruling on January 22, 2008, indicating that it had finally adjudicated the case and had rescinded the earlier termination.

The Facts in Appeal No. 2070670

On May 18, 2007, Yvonne Kennedy, then president of Bishop State, issued a letter to Soleyn informing him that he was being placed on administrative leave based on criminal charges filed against him by the Mobile County District Attorney on May 8, 2007. While still on leave without pay, Soleyn received a letter from Lowe dated August 1, 2007. The August 1 letter contained the identical language as the letter Lowe sent to Archible, except the letter stated:

“The facts which support my decision to terminate your employment with Bishop State are as follows:
“You committed financial improprieties in relation to the receiving of financial aid and scholarships.”

Unlike Archible, Soleyn attended the pre-termination conference offered by Bishop State on August BO, 2007. At that conference, Soleyn’s attorney complained that Soleyn had not been provided sufficient notice of the specific acts of financial impropriety Bishop State was relying upon to terminate Soleyn’s employment and his pay. Bishop State’s attorney responded essentially that Soleyn had criminal charges pending against him for financial improprieties committed at Bishop State and that his employment and pay were being terminated for the same acts for which he had been criminally charged.

On November 8, 2007, Bishop State issued Soleyn a second letter notifying him that his employment and pay had been terminated in accordance with the grounds outlined in the August 1, 2007, letter. So-leyn contested his termination. After the parties selected a hearing officer, Soleyn filed a motion to dismiss or, in the alternative, to reinstate his pay. On March 25, 2008, the hearing officer granted Soleyn’s motion, adopting the January 4, 2008, decision issued by the hearing officer in the Archible case, and dismissed the case.

Standard of Review

The basic question before the court is whether the hearing officers erred in rescinding the employees’ terminations on the ground that Bishop State had failed to provide the employees proper notice of the factual bases for the termination of their employment and their pay. In resolving that question, we review only the hearing officers’ conclusions of law and their application of law to the facts. As such, our standard of review is de novo. Barngrover v. Medical Licensure Comm’n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App. 2002) (stating that the presumption of correctness typically afforded a hearing officer’s decision in an administrative proceeding does not attach to the hearing officer’s conclusions of law or to his or her improper application of the law to the facts).

Analysis

Before 2004, the Fair Dismissal Act required that a notice of intent to terminate “stat[e] in detail the reasons for the proposed termination, [and] the facts upon which such reasons are based .... ” Ala. Code 1975, § 36-26-103. In 2004, the legislature amended the Fair Dismissal Act so that it now currently provides, among other things, that a notice of intent to terminate

“shall state the reasons for the proposed termination, [and] shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 36-26-102, [Ala.Code 1975.]”

Ala. Acts 2004, Act No. 2004-567, § 1 (now codified as Ala.Code, § 36-26-103(a)).

Bishop State argues that the change in the terminology used in § 36-26-103(a) evinces a legislative intention to reduce the quantum of information that must be contained in a notice of intent to terminate the employment of a nonprobationary employee who is subject to the Fair Dismissal Act. However,

“[i]t is to be presumed that the ‘Legislature does not intend to make any change in the existing law beyond what is expressly declared,’ and ‘the presumption is against any radical change of legislative policy.’ 2 Lewis’ Sutherland Stat. Constructions (2d Ed.) 931. ‘Reviewers of statutes are presumed not to change the law if the language which they use fairly admits of a construction which makes it consistent with the former statutes; and it is a well-settled rule that in the revision of statutes neither an alteration in phraseology nor the addition or omission of words in the latter statute shall be held necessarily to alter the construction of the former act, excepting where the intent of the Legislature to make such change is clear. But where no effect can be given to the new language in any other manner, the law will be construed to be changed.’ 36 Cyc. 1067, 1068.”

Western Union Tel. Co. v. South & North Alabama R.R., 184 Ala. 66, 87, 62 So. 788, 794 (1913); see also City of Pinson v. Utilities Bd. of Oneonta, 986 So.2d 367, 373 (Ala.2007).

The pre-2004 requirement in the Fair Dismissal Act that an employing authority “stat[e] in detail the reasons for the proposed termination” tracked the pre-2004 language in the Teacher Tenure Act stating that an employing authority may cancel a tenured teacher’s employment contract after giving that teacher notice in writing “stating in detail the reasons for the proposed cancellation.” Ala.Code 1975, § 16-24-9. In State Tenure Commission v. Jackson, 881 So.2d 445 (Ala. Civ.App.2003), this court recognized that a teacher received sufficient notice under the former version of § 16-24-9 when the charges specified in the employing school’s written notice were “sufficiently detailed to provide an adequate opportunity for [the teacher] to prepare a defense to those charges.” 881 So.2d at 449. Because the pre-2004 version of the Teacher Tenure Act used nearly identical language as the pre-2004 version of the Fair Dismissal Act, the holding in Jackson applies equally to the pre-2004 version of the Fair Dismissal Act.

In adopting different language requiring only “a short and plain statement of the facts” relating to the reasons for the termination, the current version of the Fair Dismissal Act now tracks the language of the Alabama Administrative Procedure Act. See Ala.Code 1975, § 41-22-12(b)(4) (“The notice shall include: ... (4) [a] short and plain statement of the matters asserted.”). Similar language, which appears in state administrative-procedure acts throughout the country, has been construed to require, at a minimum, that the notice alert the affected party of the claims of the governmental agency so that the party has a reasonable opportunity to defend against those claims. See, e.g., Lucero v. Mathews, 901 P.2d 1115 (Wyo.1995); and Rasky v. Department of Registration & Educ., 87 Ill.App.3d 580, 585, 410 N.E.2d 69, 75, 43 Ill.Dec. 69, 75 (1980) (holding that charges in an administrative hearing do not have to be drawn with the same precision as judicial pleadings, but “need only be drawn sufficiently so that the alleged wrongdoer is reasonably apprised of the case against him to intelligently prepare his defense”). Therefore, the difference in the language contained in the notice provision in the pre-2004 version of the Fair Dismissal Act and the current version of that act appears to be merely semantical and not substantive.

The requirements of the pre-2004 version of the Fair Dismissal Act met the minimum requirements of due process as established in such United States Supreme Court cases as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). To hold that the current version requires less information than the former version would be to construe the statute so that it falls below baseline constitutional standards.

“ ‘It is the duty of the court to construe a statute so as to make it harmonize with the constitution if this can be done without doing violence to the terms of the statute and the ordinary canons of construction.’ Almon v. Morgan County et al., 245 Ala. 241, 16 So.2d 511, 516 [ (Ala.1944) ]. A statute can be adopted without expressly containing provisions which meet constitutional requirements but in such terms as not to exclude them, and so to justify a court in holding that the statute was intended to be subject to such requirements and considered as embodied in the statute.”

Board of Educ. of Choctaw County v. Kennedy, 256 Ala. 478, 482, 55 So.2d 511, 513 (1951).

Therefore, we conclude that the changes in the language of the notice provision in the Fair Dismissal Act do not evidence a clear legislative intent to change prior law. In relation to the termination of the employees’ employment, Bishop State was required to provide the employees notice of the reasons for their terminations in sufficient detail to provide them an adequate opportunity to prepare a defense to those charges. In the January 4, 2008, decision in Archible’s case, which was adopted by the hearing officer in So-leyn’s case, the hearing officer described the notice as being sufficient when it “creates a material and clear ‘[bjurden of [pjroof for the [ejmployer and an equally material and clear ‘[pjosition of [djefense’ for the [e]mployee.” We believe that standard is consistent with Alabama law. It merely states that the notice must be sufficient to apprise the employee of the grounds for termination the employer intends to prove and against which the employee will have to defend.

Based on that standard, an employing authority subject to the Fair Dismissal Act may not simply recite a statutory ground for termination, but must notify the employee of the factual bases underlying that ground. See County Board of Educ. of Clarke County v. Oliver, 270 Ala. 107, 109, 116 So.2d 566, 567 (1959) (letter notifying teacher that her employment was being terminated due to unsatisfactory work and incompetency was not sufficiently detailed); and Gardner v. Alabama State Tenure Comm’n, 553 So.2d 606, 607 (Ala.Civ.App.1989) (school board failed to comply with statutory notice requirement by informing teacher his employment was being terminated for “incompetency, neglect of duty, and other good and just cause”). However, the employer need not provide a detailed statement of the evidence that would be presented against the employee at a termination hearing to prove the factual basis for the termination. Jackson, 881 So.2d at 449.

In relation to the termination of pay, Ala.Code 1975, § 36-26-103(b), states that “no pay shall be provided [during the contest of a termination] in cases involving moral turpitude.” The same due-process concerns that require sufficient notice of the reasons for terminating the employment of an employee covered by the Fair Dismissal Act also require sufficient notice of the reasons for terminating the employee’s pay on the basis of moral turpitude. However, if the employer relies on the same facts to support the termination of pay as those supporting its decision to terminate employment, neither the statute nor due process requires the employer to submit a separate statement of facts relating to the pay issue. The notice simply must meet the same constitutional standard as outlined above.

In appeal number 2070879, Bishop State notified Archible in its August 1, 2007, letter that it intended to terminate his employment for several of the statutory grounds contained in § 36-26-102: “failure to perform your duties in a satisfactory manner, immorality, and/or other good and just causes.” Bishop State also informed Archible that it intended to terminate his pay for his acts of moral turpitude. Bishop State further advised Archi-ble of the factual basis for the grounds asserted: “financial improprieties relating to the awarding of financial aid and scholarships.” From that information, Archible was able to discern that the grounds for termination of his employment and his pay directly related to criminal charges pending against him and that his testimony in defending the grounds for termination could incriminate him. Based on the content of the notice and the surrounding circumstances, it is apparent that Bishop State provided Archible sufficient information of the misconduct and moral turpitude it intended to prove so as to enable Archi-ble to defend against those charges.

Likewise, in appeal number 2070670, Bishop State advised Soleyn of the statutory grounds and factual basis for its decision to terminate his employment and his pay. Soleyn also had criminal charges pending against him relating to alleged financial improprieties committed at Bishop State and had been on administrative leave without pay for almost three months when he was notified by Lowe of Bishop State’s intent to terminate his employment and his pay. The content of the notice, along with the surrounding circumstances, provided Soleyn sufficient information so that he could properly prepare his defense.

Although we conclude that the hearing officers did not err in construing the notice provision of § 36-26-103(a), we conclude that the hearing officers did err in applying the law to the undisputed facts. Accordingly, we reverse the decisions entered by the hearing officers and remand the cases for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.

      . Soleyn raises an issue regarding our jurisdiction to hear Bishop State's appeal in case number 2070670. He first argues that the March 25, 2008, judgment from which Bishop State appeals is not final because Bishop State filed a “motion to reconsider" on April 15, 2008. The Fair Dismissal Act does not expressly provide for rehearings, but it provides that once a hearing officer issues a “final decision,” the only remedy is to appeal. See § 36-26-104(b), Ala.Code 1975. Rule 81(b), Ala. R. Civ. P., clarifies that the Rules of Civil Procedure, which do allow for motions to alter, amend, or vacate a judgment through Rule 59, do not apply to "any proceeding in which the adjudication of the controversy is by any selected individual or individuals,” which is the case here. The supreme court has recognized that some adjudicatory bodies have inherent power to reconsider their decision, but that such inherent power may not be applied to an action that cannot be set aside or if reconsideration is precluded by law. See Ex parte Baldwin County Comm’n, 526 So.2d 564 (Ala.1988). Assuming, without deciding, that a hearing officer in a Fair Dismissal Act case has the inherent power to reconsider its final order, we find, based on the language of § 36-26-104(b) and the stated purpose of the 2004 amendments to the Fair Dismissal Act "to streamline the contest and appeal processes for employees," Ala. Acts 2004, Act No. 2004-567 (Title), that the legislature has removed such inherent power. Therefore, we conclude that the motion filed by Bishop State on April 15, 2008, did not affect the finality of the hearing officer's March 25, 2008, decision.
      Soleyn also argues that Bishop State may have filed its appeal beyond 21 days from the receipt of the hearing officer's final decision, the deadline for appeals from final decisions in Fair Dismissal Act cases established in § 36-26-104(b). Bishop State alleges it received the final decision on March 28, 2008, which Soleyn does not dispute. Bishop State filed its appeal in this court on April 18, 2008, exactly 21 days later. Therefore, the appeal is timely.


author: WOODALL, Justice.

text:
    Ex parte James SOLEYN. (In re Bishop State Community College v. James Soleyn). Ex parte Angelo Archible. (In re Bishop State Community College v. Angelo Archible).
    1080179 and 1080195.
    Supreme Court of Alabama.
    May 29, 2009.

      J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; Sam Heldman of The Gardner Firm, P.C., Washington, D.C.; and L. Daniel Mims and Theresa N. Williamson of L. Daniel Mims, P.C., Mobile, for petitioner James Soleyn.
    Henry H. Caddell of Thiry & Caddell, Mobile, for petitioner Angelo Archible.
    David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for respondent.
   WOODALL, Justice.

James Soleyn and Angelo Archible each sought certiorari review of the decision of the Court of Civil Appeals in appeals by Bishop State Community College (“Bishop State”), which the Court of Civil Appeals consolidated. Bishop State Cmty. Coll. v. Archible, 33 So.3d 577 (Ala.Civ.App.2008). We granted certiorari review to consider two material questions of first impression for this Court: Whether the Court of Civil Appeals applied the proper standard of review and whether, in reviewing a notice of termination under the Fair Dismissal Act, it is appropriate to consider the circumstances surrounding the notice. See Rule 39(a)(1)(C), Ala. R.App. P. We consolidated the cases for the purpose of writing one opinion. We reverse and remand.

The Court of Civil Appeals’ opinion contains detailed statements of the facts of each underlying case. We will not repeat all those facts, many of which are not relevant to the legal questions before us. Instead, we will focus on the relevant procedural history of these cases.

Soleyn and Archible are employees of Bishop State who, because of their employment status, have certain rights under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the Act”). Their employment may be terminated only for one or more of the reasons listed in § 36-26-102. In order to terminate an employee who is subject to the Act, the employer, here Bishop State, must first give the employee written notice of its intent to terminate his or her employment. In relevant part, the notice of intent to terminate must “state the reasons for the proposed termination [and must] contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 36-26-102 ....” § 36-26-103(a).

On August 1, 2007, Bishop State issued notices of its intent to terminate the employment and pay of Archible and Soleyn. Both employees contested the terminations, and each requested a hearing pursuant to the Act. Hearing officers were selected to hear the contests. See § 36-26-114. In the course of his contest, Ar-chible challenged the sufficiency of the notice of intent to terminate his employment, arguing that it did not contain the requisite “short and plain statement of the facts showing that the termination is taken for one or more [lawful] reasons.” Soleyn made a similar challenge to the sufficiency of Bishop State’s notice of intent to terminate his employment.

The hearing officer assigned to Archi-ble’s contest concluded that the notice provided to Archible by Bishop State did not comply with § 36-26-103(a). The hearing officer ordered Bishop State to reinstate Archible with backpay and benefits until such time as the termination process was reinstated with an appropriate notice to Archible. Subsequently, the hearing officer assigned to Soleyn’s contest entered a similar order. Bishop State appealed the decisions of both hearing officers. The Court of Civil Appeals agreed to hear the appeals, and it consolidated these appeals and issued one opinion. See § 36-26-104(b).

Section 36-26-104(b) provides, in pertinent part, that “[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” (Emphasis added.) In spite of this statutory mandate for a narrow appellate review, the Court of Civil Appeals conducted a de novo review of the hearing officers’ decisions in Archible’s and Soleyn’s contests.

“The basic question before the court is whether the hearing officers erred in rescinding the employees’ terminations on the ground that Bishop State had failed to provide the employees proper notice of the factual bases for the termination of their employment and their pay. In resolving that question, we review only the hearing officers’ conclusions of law and their application of law to the facts. As such, our standard of review is de novo. Barngrover v. Medical Licensure Comm’n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App.2002) (stating that the presumption of correctness typically afforded a hearing officer’s decision in an administrative proceeding does not attach to the hearing officer’s conclusions of law or to his or her improper application of the law to the facts).”

Bishop State, 33 So.3d at 581. We have agreed to address the issue whether the Court of Civil Appeals applied the appropriate standard of review to the hearing officers’ conclusions concerning the adequacy of the notices of proposed terminations under the Act.

The Court of Civil Appeals concluded that each notice of intent to terminate complied with § 36-26-103(a); thus, it reversed the decisions of the hearing officers and remanded the cases for further proceedings. In reaching its conclusions, the Court of Civil Appeals did not hold that the notices, by their express terms, were sufficient. Instead, the court looked beyond the terms of the notices themselves to what it described as the “surrounding circumstances.” “Based on the content of the notice and the surrounding circumstances, it is apparent that Bishop State provided Archible sufficient information of the misconduct and moral turpitude it intended to prove so as to enable Archible to defend against those charges.” Bishop State, 33 So.3d at 584 (emphasis added). As to Soleyn, the Court of Civil Appeals concluded: “The content of the notice, along with the surrounding circumstances, provided Soleyn sufficient information so that he could properly prepare his defense.” Bishop State, 33 So.3d at 584 (emphasis added). We have agreed to address the issue whether, in determining the adequacy of a notice of proposed termination under the Act, it is appropriate to look beyond the terms of the notice itself and consider any surrounding circumstances.

We turn first to the standard-of-review issue. It is true that the Act provides an arbitrary-and-capricious standard that is “generally applicable to appeals from a hearing officer’s decision.” Archi-ble’s brief, at 55. We agree with Archible that § 36-26-104(b) “evinces legislative intent that there be a presumption as to the correctness of [a] hearing officer’s rulings where factual determinations are involved.” Archible’s reply brief, at 21. However, as Bishop State points out, “no hearing was held and no facts were adduced in [these] matter[s].” Bishop State’s brief, at 48-49. Under these circumstances, each hearing officer’s eonclu-sions were, as Bishop State argues, “solely conclusions of law, based on his review of the facts provided to [the employee] in the notice of intent to terminate.” Bishop State’s brief, at 49.

Neither Archible nor Soleyn has called to our attention any case in which an Alabama appellate court has applied an arbitrary-and-capricious standard to the review of a legal conclusion or the application of the law to undisputed facts. Indeed, it is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo. See, e.g., State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala.2005). This has been held to be true where a hearing officer’s decision is otherwise subject to more limited review. Ex parte Wilbanks Health Care Servs., 986 So.2d 422, 425 (Ala.2007) (“Review of the hearing officer’s conclusions of law or application of the law to the facts is de novo.”); Barngrover v. Medical Licensure Comm’n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App.2002) (“The presumption of correctness does not attach to the hearing officer’s conclusions of law; further, no presumption of correctness exists when a hearing officer improperly applied the law to the facts.”). Thus, the Court of Civil Appeals applied the appropriate standard of review to the hearing officers’ conclusions concerning the adequacy of the notices of proposed terminations pursuant to the Act.

In considering the propriety of looking to “surrounding circumstances” in evaluating the sufficiency of a notice of proposed termination of employment under the Act, “our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there.” Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005). Section 36-26-103 provides the exclusive means by which an employer such as Bishop State may terminate employees such as Archible and Soleyn. Under § 36-26-103(a), Bishop State was clearly obligated to provide each employee with a notice of intent to terminate his employment that “state[d] the reasons for the proposed termination” and that “eontain[ed] a short and plain statement of the facts showing that the termination [was] taken for one or more of the reasons listed in Section 36-26-102.” This statutory requirement is, by its very terms, unconditional, and this Court cannot, under the guise of statutory construction, create any exception to it. We agree with Archible that the Court of Civil Appeals “[d]epart[ed] from the clear language of the notice provisions of the ... Act to embrace the ambiguous concept of ‘surrounding circumstances.’ ” Archible’s brief, at 27.

Bishop State’s position concerning the consideration of surrounding circumstances by the Court of Civil Appeals is, at best, confusing. First, for example, it argues that the consideration of such circumstances is proper: “Even if the [Act] require[d] more specifics in the initial notice of intent to terminate, Mr. Archible had knowledge of the specific facts involved in the decision to terminate his employment.” Bishop State’s brief, at 40-41. However, Bishop State goes on to argue that the hearing officer in Archible’s case did not consider any such circumstances: “The Hearing Officer’s decisions are solely conclusions of law, based on his review of the facts provided to Mr. Archible in the notice of intent to terminate.” Bishop State’s brief, at 49. We agree with Archible that the ambiguous concept of “surrounding circumstances” invites confusion. Archi-ble’s brief, at 27.

For the foregoing reasons, the judgments of the Court of Civil Appeals are reversed and the cases are remanded for further proceedings consistent with this opinion.

1080179 — REVERSED AND REMANDED.

1080195 — REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.


text:
    BISHOP STATE COMMUNITY COLLEGE v. Angelo ARCHIBLE. Bishop State Community College v. James Soleyn.
    2070379 and 2070670.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.

      David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellant.
    Henry H. Caddell of Thiry & Caddell, Mobile, for appellee Angelo Archible.
    J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; and L. Daniel Mims, Mobile, for appellee James Soleyn.
   MOORE, Judge.

This court, on October 24, 2008, reversed the decisions entered by the hearing officer in case numbers FMCS 07-4797 and FMCS 08-1166. See Bishop State Cmty. Coll. v. Archible, 33 So.3d 577 (Ala.Civ.App.2008). On certiorari review, the supreme court reversed this court’s judgments, concluding that this court had erred in considering the “ ‘surrounding circumstances’ in evaluating the sufficiency of a notice of proposed termination of employment under the [Fair Dismissal] Act[, Ala.Code 1975, § 36-26-100 et seq.,]” and it remanded the cases to this court for further proceedings. Ex parte Soleyn, 33 So.3d 584, 587 (Ala.2009). Pursuant to the supreme court’s opinion, we now proceed to determine whether, under the Fair Dismissal Act, Ala.Code 1975, § 36-26-100 et seq. (“the Act”), each of the notices of proposed termination of employment at issue in these cases “contains a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 36-26-102[, Ala.Code 1975].” Ala.Code 1975, § 36-26-103(a).

In appeal number 2070379, the notice of proposed termination provided to Angelo Archible contained the following “short and plain statement of the facts” purporting to show that “the termination is taken for one or more of the reasons listed in Section 36-26-102:”

“The termination of your employment with Bishop State is proposed for the following reasons as authorized by Code of Alabama (1975), § 36-26-102: failure to perform your duties in a satisfactory manner, immorality, and/or other good and just causes. The facts which support [the] decision to terminate your employment with Bishop State are as follows:
“You committed financial improprieties in relation to the awarding of financial aid and scholarships.”

In appeal number 2070670, the notice of proposed termination provided to James Soleyn contained the following language:

“The termination of your employment with Bishop State is proposed for the following reasons as authorized by Code of Alabama (1975), § 36-26-102: failure to perform your duties in a satisfactory manner, immorality, and/or other good and just causes. The facts which support [the] decision to terminate your employment with Bishop State are as follows:
“You committed financial improprieties in relation to the receiving of financial aid and scholarships.”

This court has held that, in order to afford minimal due process to an employee under the Act, the notice of proposed termination must advise the employee ‘“of the cause or causes for his [or her] termination in sufficient detail to fairly enable him [or her] to show any error that may exist.’ ” State Tenure Comm’n v. Page, 777 So.2d 126, 131 (Ala.Civ.App.2000) (quoting James v. Board of School Comm’rs of Mobile County, 484 F.Supp. 705, 715 (S.D.Ala.1979), quoting in turn Stewart v. Bailey, 556 F.2d 281, 285 (5th Cir.1977)); see also State Tenure Comm’n v. Jackson, 881 So.2d 445, 449 (Ala.Civ.App.2003) (stating that the notice of proposed termination should be “sufficiently detailed to provide an adequate opportunity for [the employee] to prepare a defense to those charges”). In the present cases, the notices of proposed termination do not meet the requirement of setting forth a “short and plain statement of the facts.” Neither notice set forth what “financial improprieties” had been committed so as “to provide an adequate opportunity for [the employees] to prepare a defense to those charges.” Jackson, 881 So.2d at 449. The language used is so vague as to fall below the minimum due process that must be afforded an employee under the Act.

Bishop State Community College (“Bishop State”) also argues that the hearing officer erred in dismissing the termination proceedings without conducting a hearing. Specifically, with regard to appeal number 2070379, Bishop State argues that the hearing officer erred in dismissing the termination proceeding because Arehi-ble, the employee in that proceeding, had not requested that relief. We disagree. Although the Act provides for a de novo hearing, we conclude that, to read the Act as prohibiting a hearing officer from dismissing a proceeding without a hearing on the merits when the requisite notice of termination fails as a matter of law would thwart the very purpose of the Act — “ ‘ “to provide non-teacher employees a fair and swift resolution of proposed employment terminations.” ’ ” South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 314 (Ala.Civ.App.2008) (quoting Gainous v. Tibbets, 672 So.2d 800, 803 (Ala.Civ.App.1995), quoting in turn Bolton v. Board of Sch. Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987)). The Act must be “ ‘ “liberally construed to effectuate its purpose.” ’ ” Id. Thus, we decline to reverse the hearing officer’s determination on this point.

Bishop State next argues that the hearing officer erred in ordering Bishop State to pay any medical expenses and other expenses that the employees sustained while they were not receiving pay. We disagree. Our supreme court has held that “ ‘[bjackpay for a reinstated public employee includes the value of fringe benefits that the employee did not receive while [he or] she was not at work.’ ” Bishop State Cmty. Coll. v. Douglas, 35 So.3d 617, 622 (Ala.Civ.App.2009) (quoting Whitlow v. City of Birmingham, 689 So.2d 107, 109 (Ala.Civ.App.1996)). Thus, we find no error on this point.

Finally, Bishop State requests that this court determine whether it is permitted to reinitiate the termination proceedings on the same grounds by providing new notices of termination. The employees argue, however, that this issue is not ripe for review. “Ripeness is defined as ‘[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made’ or ‘[t]he requirement that this circumstance must exist before a court will decide a controversy.’ ” Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 352 n. 5 (Ala.2008) (quoting Black’s Law Dictionary 1353 (8th ed.2004)). In the present cases, we note that Bishop State has not yet attempted to reinitiate the termination proceedings. Thus, we conclude that the circumstances do not exist so as to permit this court to decide this issue.

Based on the foregoing, we conclude that the hearing officer did not err in dismissing the termination proceedings for failure to provide proper notices of termination.

2070379 — AFFIRMED.

2070670 — AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.