author: PER CURIAM.

text:
    Raymond L. SHAFFER v. REGIONS FINANCIAL CORPORATION.
    1061223.
    Supreme Court of Alabama.
    Aug. 28, 2009.

      Richard E. Smith, Deborah Alley Smith, and Clark A. Cooper of Christian & Small, LLP, Birmingham, for appellant.
    James C. Pennington and Christopher A. Mixon of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for appellee.
   PER CURIAM.

Raymond L. Shaffer appeals from a summary judgment in favor of Regions Financial Corporation (“Regions”). We affirm in part, reverse in part, and remand.

Procedural History

On March 2, 2005, Shaffer sued Regions, alleging breach of contract, fraudulent suppression, and fraudulent misrepresentation and seeking specific performance of a contract arising out of Shaffer’s employment with Regions. All the claims concerned a change-of-control agreement Shaffer alleges he entered into with Regions. On April 7, 2005, Regions answered Shaffer’s complaint. On November 14, 2006, Shaffer moved for a partial summary judgment on his breach-of-contract claim, and on January 8, 2007, Regions moved for a summary judgment on all claims.. On May 4, 2007, the trial court, without stating the specific basis for its holding, entered a summary judgment in favor of Regions on all the claims. Shaffer appealed.

Facts

The evidence, viewed in the light most favorable to Shaffer, the nonmovant, Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993), suggests the following facts.

John Dick, Regions’ chief information officer and an executive vice president, worked with Shaffer at General Motors Acceptance Corporation (“GMAC”) until August 2001, when Dick left GMAC to work for Regions. In early 2002, after being contacted by Dick, Shaffer applied for a position with Regions. Dick and Shaffer had several discussions about the position at Regions. According to Shaffer, part of those discussions concerned Shaffer’s receiving a change-of-control agreement as part of a job offer from Regions. Regions decided to hire Shaffer and sent him a letter dated March 14, 2002, which set forth the terms of Regions’ job offer to Shaffer. The letter stated, in pertinent part:

“Please allow me to reiterate the elements of our job offer to you. They are as follows:
“Title: Director of Technology Management Senior Vice President
“Reports To: John Dick
Chief Information Officer
Executive Vice President
“Salary: $5,846.16 bi-weekly
($152,000.00 annually)
“Plus:
Inclusion into the Management Incentive Plan (35% target), and the Long Term Incentive Plan (target of 5,000 options), effective calendar year 2002.
Included with the MIP incentive plan throughout employment is Regions’ Change of Control agreement.
“Start Date: April 8, 2002
“Benefits: Regions Financial Corporation employee benefits as outlined in our Benefits Brochure. Plus, in exception to standard Regions Vacation Policy as described in the benefits summary, two (2) additional weeks, for a total of three (3) weeks of paid vacation in 2002. Thereafter, running concurrent with your title, a total of three (3) weeks paid vacation each year.”

(Emphasis added.) Shortly after receiving this letter, Shaffer began working for Regions.

Shaffer testified that he did not rely on the specific terms of the change-of-control agreement when he accepted the job with Regions and that he did not know what the specific terms of the agreement were. Shaffer further testified that he did not discuss the specific terms of the change-of-control agreement with anyone before he started working for Regions. Shaffer stated that he does not know whether he would have taken the job with Regions if the change-of-control agreement was not part of the job offer. Shaffer testified that Dick used the change-of-control agreement as a selling point whenever they talked about the job, telling him that, “because [Regions] was a regional bank, [a change-of-control agreement] was a good item to have.”

Shaffer testified that “a couple of weeks” after he began working for Regions, he received a change-of-control agreement through the interoffice mail. He testified that he signed the agreement and returned it to Regions’ human-resources department and that he did not keep a copy of the agreement. Regions has been unable to find the agreement Shaffer says he signed and returned. Shaffer never saw a copy of the change-of-control agreement that was signed by a representative of Regions.

Rebecca Crenshaw, Regions’ professional recruiting manager, testified that she had no doubt that Shaffer had a change-of-control agreement with Regions. According to Crenshaw, Shaffer was designated to be in tier three of the management-incentive plan, and a change-of-control agreement was an automatic component of the compensation of any employee who was designated to be in tier three.

A designated representative of Regions testified that Regions used two standard forms of the change-of-control agreement. The two forms were identical, except that one contained a “walk-away” provision that was offered to the very top executives at Regions. The representative testified that Shaffer was not at such a level in Regions’ organizational structure that he would have been offered the change-of-control-agreement form containing the “walkaway” provision.

As evidence of the terms of the change-of-control agreement that Shaffer says he entered into with Regions, Shaffer presented to the trial court a change-of-control agreement signed by Srinivas Sura-paneni, who was part of the technology-management department and who reported directly to Shaffer. Surapaneni’s change-of-control agreement states, in pertinent part:

“3. Termination of Employment. If the Employee’s employment with the Company and with its Affiliates shall be terminated within twenty-four (24) months following a Change of Control, the Employee shall be entitled to the following compensation and benefits:
“(a) If the Employee’s employment with the Company and with its Affiliates shall be terminated (i) by the Company for Cause or Disability, (ii) by reason of the Employee’s death, or (iii) by the Employee other than for Good Reason, the Company shall pay to the Employee the Employee’s Accrued Compensation. The Employee’s entitlement to any other compensation or benefits shall be determined in accordance with the Company’s employee benefit plans and other applicable programs and practices then in effect.
“(b) If the Employee’s employment with the Company and with its Affiliates shall be terminated for any reason other than as specified in Section 3(a) above, the Company shall pay to the Employee the aggregate of the Employee’s Accrued Compensation plus an amount equal to two times the sum of the Employee’s Base Amount and Bonus Amount as severance pay and in lieu of any further compensation for periods subsequent to the Termination Date.”

The agreement defines “Good Reason” as follows:

“(I) the occurrence, after a Change of Control of any of the following events or conditions:
“(A) a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents a materially adverse change from his status, title, position or responsibilities as in effect immediately prior thereto; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are materially inconsistent with his status, title, position, responsibilities; or any removal of the Employee from or failure to reappoint or reelect him to any such offices or positions, except in connection with the termination of employment of the Employee for Disability, Cause, as a result of the Employee’s death or by the Employee other than for Good Reason.”

The agreement further states:

“7. Fees and Expenses. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Employee may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Employee or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee thereof (including as a result of any contest by the Employee about the amount of any payment pursuant to this Agreement).”

In January 2004, a merger between Regions and Union Planters Bank was announced. The merger was consummated on July 1, 2004.

In late April 2004 or early May 2004, change-of-control agreements were discussed in a staff meeting for some of Regions’ employees. The human-resources department informed everyone at the meeting that the department was willing to provide them with a document summarizing the important aspects of the change-of-control agreement. After the staff meeting, Shaffer obtained a copy of the summary document from Angie Parker, Regions’ group human-resources manager. The summary document stated, among other things, that “[t]he consummation of the pending merger between Regions and Union Planters will constitute a ‘Change of Control’ within the meaning of your Change of Control Agreement with Regions.”

After the merger was announced, Dick formed various committees to analyze how to integrate the Regions and Union Planters technology departments. The committees included people from both Regions and Union Planters, and Shaffer was on two of the committees, one of which was the committee that developed the plan for the new planning and integration department. This committee did not recommend that Shaffer be in charge of the new department. Shaffer agreed with the committee’s recommendations concerning how to structure the new department. Shaffer testified that the committee’s recommendations “made sense for that organization.” Shaffer further testified that as an officer of the company he had a responsibility to build the organization in the best way for Regions and that is what he did.

Regions conducted interviews to decide what positions certain people would be placed in after the merger was completed. Shaffer interviewed with Dave Aldridge, who was the chief technology officer at Union Planters. After this interview process, Shaffer was offered the position of director of IT (information technology) planning and integration. Shaffer’s compensation and benefits remained unchanged, and he remained a senior vice president. Dick testified that the function of Shaffer’s job changed after the merger. According to Dick, Shaffer “assumed a more strategic role in the group” and “[f]o-cused on more strategic issues.” Shaffer testified that his job responsibilities changed after the merger. Dick and Parker testified that Shaffer lost some of his “day-to-day operating activities” after the merger, such as “text services.” According to Dick, after the merger, a systems-integration function was added to the responsibilities of Shaffer’s group so that Shaffer could focus on IT planning strategy, architecture standards, and systems integration.

In his role as the director of technology management at Regions, Shaffer had about 35 employees under his supervision. Dick testified that after the merger Shaffer had approximately five to nine people under his supervision. According to Dick, this reduction in staff size was directly linked to Shaffer’s change in responsibilities after the merger.

Before the merger, Shaffer reported directly to Dick. After the merger, Dick remained in the position of chief information officer. According to Dick, Regions wanted to retain Aldridge as part of the post-merger technology organization, so it offered him a position immediately under Dick’s and immediately above Shaffer’s within the new organizational hierarchy. In the spring of 2004, Dick informed Shaffer that after the merger he would be reporting to Aldridge. However, Aldridge ultimately decided not to work for Regions. Dick informed Shaffer of Al-dridge’s decision. Shaffer testified that he reported to Aldridge for a short period immediately following the merger until he was “moved back underneath [Dick]” when Aldridge left. According to Parker, Al-dridge’s position was not “internally eliminated” when he left and there was no way for Shaffer to know whether Aldridge’s position would be filled at a later time. Shaffer testified that he had a conversation with Dick concerning Aldridge’s position, and, Shaffer says, Dick indicated that the position would not be eliminated and that he did not know whether it would be filled.

In Shaffer’s view, in his new position as director of IT planning and integration he played “a critical role” for Regions. However, Shaffer testified that for him this position was only an “all right” opportunity.

After the merger was announced but before it was completed, Shaffer was informed by one of his vendors that the position of director of information technology was open at Compass Bank (“Compass”). Based on this information, Shaffer contacted Charles Reid, the incumbent in that position. Compass interviewed Shaffer on July 28, 2004, and, in a letter dated September 3, 2004, offered Shaffer the position. The offer stated, among other things, that Shaffer would be an executive vice president, that he would receive an annual salary of $190,000, that he could participate in an incentive plan that would allow him to earn an annual bonus of up to 50 percent of his annual salary, and that he would be guaranteed a minimum bonus of $95,000 for 2004. Shaffer testified that the job with Compass was better than his job with Regions.

On September 10, 2004, Shaffer sent a letter announcing that he would resign from Regions on September 25, 2004. On September 13-14, 2004, Shaffer and Parker exchanged e-mail messages about the change-of-control agreement Shaffer alleged he had executed. Parker assumed that Shaffer, because of his management position, had a change-of-control agreement, and Parker’s understanding was that all employees at the level of management in the company at which Shaffer was had the same change-of-control agreement. During the course of the e-mail exchange, Parker reviewed a change-of-control agreement of another employee who was at the same management level as Shaffer to determine whether she thought Shaffer was entitled to compensation under a change-of-control agreement he might have executed. Parker concluded that Shaffer was not entitled to any payment under the terms of the change-of-control agreement because, she thought, he had not been adversely impacted by the merger. Parker informed Shaffer of her conclusion, but she advised him to refer to his own agreement. Shaffer responded that he “had all of the following, a change in title, change in reporting relationship, not just once but twice, and a large reduction in responsibilities with removal of all distributed computing responsibilities, reduction in staff from 35 + to 5,” and that these changes “reduced [his] standing within the Technology group, effectively moving [him] lower into the overall standings of more important areas, which will impact [his] future earning through lower bonus compensation.”

Regions denied Shaffer’s request for compensation under the change-of-control agreement apparently based primarily on Regions’ belief that the merger did not result in a materially adverse change in Shaffer’s employment. In a letter to Regions’ human-resources director dated October 30, 2004, Shaffer appealed Regions’ decision to deny him compensation under the change-of-control agreement. The letter stated that Shaffer believed that his title had been “reduced,” that he had “dropped one rung” in Regions’ organizational hierarchy, that “there was an adverse change in [his] actual job responsibilities,” that there was a “dramatic reduction of [his] staff,” that he was “stripped of substantive job responsibilities,” that the operational and project responsibilities he enjoyed had been taken away, and that his “job responsibilities were carved off and [his] group was outside of the decision-making loop.” Regions denied Shaffer’s appeal, and he sued Regions.

Standard of Review

In Pittman v. United Toll Systems, LLC, 882 So.2d 842 (Ala.2003), this Court set forth the standard of review applicable to a summai’y judgment:

“This Court’s review of a summary judgment is de novo.
“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is 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.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

882 So.2d at 844 (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

Discussion

On appeal, Shaffer’s only contention is that the trial court erred in entering a summary judgment in favor of Regions on his breach-of-contract claim. Shaffer explicitly “[does] not raise the propriety of the entry of [a] summary judgment on the fraud and suppression claim[s].” Shaffer’s reply brief, at 29 n. 8. Therefore, the summary judgment on those claims is affirmed.

In its summary-judgment motion, Regions argued that it did not owe Shaffer any compensation under a change-of-control agreement because, it says, there was no valid change-of-control agreement between Regions and Shaffer or, if there was, Regions did not breach the agreement. Specifically, Regions alleged (1) that Shaffer had failed to present substantial evidence of mutual assent to the essential terms of the change-of-control agreement he says he signed; (2) that the change-of-control agreement was not supported by consideration; (3) that, if the agreement existed, the evidence demonstrated that Regions had not breached the agreement because, Regions argues, Shaffer did not suffer a materially adverse change in his employment; and (4) that Shaffer breached his fiduciary duty to Regions and this breach precluded him from recovery under the agreement.

First, Shaffer contends that he presented substantial evidence that a valid change-of-control agreement existed between him and Regions and substantial evidence of the essential terms of the agreement. Regions argues that Shaffer did not present substantial evidence of the existence of the agreement or its terms because Shaffer has not produced a copy of a change-of-control agreement signed by him and Regions has no record that he signed a change-of-control agreement.

“The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs’ performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.” Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002). The elements of a valid contract include: “ ‘an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ ” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). Under the Alabama Rules of Evidence, “when an issue is raised (a) whether the asserted writing ever existed, or ... (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.” Rule 1008, Ala. R. Evid.

In the present case, when the evidence is reviewed, as it must be, in a light most favorable to Shaffer, as the nonmov-ant, there is a genuine issue of material fact as to whether a change-of-control agreement between Shaffer and Regions existed. It is undisputed that an element of Regions’ written job offer to Shaffer included “Regions’ Change of Control agreement.” Shaffer testified that he received the change-of-control agreement from Regions soon after he began working for Regions, that he signed it, and that he returned it to Regions’ human-resources department. Regions’ professional recruiting manager testified that Shaffer would definitely have had a change-of-control agreement because, she said, the agreement was an automatic component of the compensation of any employee in tier three of the management-incentive plan. Because this evidence creates a genuine issue of material fact as to whether a change-of-control agreement existed, a summary judgment in favor of Regions on the basis that such an agreement did not exist is not proper.

Also, if a change-of-control agreement existed, a genuine issue of material fact exists as to its terms. Regions’ designated representative testified that Regions used two standard forms of change-of-control agreement that were almost identical. The only difference was that one form contained a provision offered only to executives above Shaffer’s management level. Shaffer presented to the trial court a complete change-of-control agreement signed by Surapaneni, who was directly below Shaffer’s management level. The trier of fact could decide that, if a change-of-control agreement existed between Shaffer and Regions, Surapaneni’s change-of-control agreement correctly reflects the contents of Shaffer’s agreement. Therefore, a summary judgment in favor of Regions based on a failure to present substantial evidence of the essential terms of the change-of-control agreement was not proper.

Next, Shaffer alleges that his change-of-control agreement was supported by consideration. “[I]n order to constitute consideration for a promise, there must have been an act, a forbearance, a detriment, or a destruction of a legal right, or a return promise, bargained for and given in exchange for the promise.” Kelsoe v. International Wood Prods., Inc., 588 So.2d 877, 878 (Ala.1991). In the context of an employment agreement, what constitutes consideration has been accurately explained by the United States District Court for the District of South Carolina, as follows:

“In a unilateral employment agreement, the employer makes an offer or promise to hire in return for specified benefits and wages and the employee accepts the offer by performing the act on which the promise is impliedly or expressly based; the employee’s act or forbearance in reliance on the employer’s promise furnishes consideration to the employer, while the benefits conferred under the terms of the promise constitute consideration for the employee.”

Toth v. Square D Co., 712 F.Supp. 1231, 1235 (D.S.C.1989) (citing Small v. Springs Indus., Inc., 292 S.C. 481, 484, 357 S.E.2d 452, 454 (1987)).

In the present case, Shaffer presented substantial evidence indicating that “Regions’ Change of Control agreement” was part of the written job offer he was presented with and accepted when he began working for Regions. Shaffer presented substantial evidence indicating that he had acted in reliance on the promises set forth in that written job offer when he left his job at GMAC to work for Regions. The trier of fact could decide that these actions by Shaffer furnished the consideration to Regions for the entire employment agreement, including the change-of-control agreement. Therefore, a summary judgment in favor of Regions based on a failure to present substantial evidence of consideration for the change-of-control agreement is not proper.

Next, if a valid change-of-control agreement existed, Shaffer alleges that he presented substantial evidence indicating that Regions breached the agreement when it refused to pay severance compensation and legal expenses as set forth in the agreement. It is undisputed that Regions’ merger with Union Planters constituted a “change of control” under the agreement and that Shaffer terminated his employment within 24 months following the change of control. Accepting that the trier of fact can decide that a valid change-of-control agreement existed between Regions and Shaffer, the issue presented for our review is whether Shaffer presented substantial evidence creating a genuine issue of material fact as to whether he terminated his employment with Regions for “good reason.” Under the agreement, if he terminated his employment for good I’eason, Regions would be obligated to pay Shaffer the aggregate of his accrued compensation plus severance pay and legal expenses. Specifically, Shaffer alleges that, in accordance with the terms of the change-of-control agreement, he presented substantial evidence indicating that he terminated his employment for “good reason” because, he says, he presented substantial evidence indicating that, in his “reasonable judgment,” he suffered a “materially adverse” change to his status, title, position, or responsibilities after the change of control.

Ordinarily, “[t]he question of reasonableness is one of fact to be resolved by the trier of fact.” Gunter v. Beasley, 414 So.2d 41, 44 (Ala.1982) (holding that the reasonableness of the amount of an expense allowance granted to a former lieutenant governor was a question for the trier of fact). See Mutual Assurance, Inc. v. Schulte, 970 So.2d 292, 296 (Ala.2007) (holding that the reasonableness of a liability insurer’s reliance on a validly enacted statute that capped damages for medical malpractice but that was later ruled unconstitutional was “a question that is better left to the trier of fact” in the insureds’ action alleging negligent failure to settle); United States Fidelity & Guar. Co. v. Baldwin County Home Builders Ass’n, 770 So.2d 72, 75 (Ala.2000) (holding that if conflicting inferences can be drawn from the evidence, the question of the reasonableness of an insured’s delay in giving notice to the insurer of a claim is to be submitted to the trier of fact); Shriners Hosps. for Crippled Children v. Robbins, 450 So.2d 798, 802 (Ala.1984) (holding that the reasonableness of the trustees’ delay in turning over trust assets to the trust beneficiary was a question of fact to be resolved by the trier of fact); Parker v. King, 402 So.2d 877, 879 (Ala.1981) (citing approvingly the general rule followed by the federal courts that disapproves of summary judgments in negligence cases because of the necessity that the trier of fact pass upon the reasonableness of the conduct at issue); White v. Drivas, 954 So.2d 1119, 1124 (Ala.Civ.App.2006) (holding that the reasonableness of a mobile-home owner’s refusal to return personal property unless the owner of the personal property paid for expenses incurred is a question for the trier of the fact); and Jimoco, Inc. v. Smith, 111 So.2d 716, 718 (Ala.Civ.App.2000) (holding that, under the workers’ compensation act, the determination of the reasonableness of an employer’s request for an examination by the employer’s physician, and thus of the reasonableness of any refusal of the employee to submit to an examination, is a question for the trier of fact).

When the evidence is viewed, as it must be, in a light most favorable to Shaffer, he presented substantial evidence creating a genuine issue of material fact as to whether his responsibilities changed after the mex-ger. Dick testified that the function of Shaffer’s position changed after the merger. Shaffer testified that his job responsibilities changed after the merger. Dick and Parker testified that Shaffer lost some of his “day-to-day operating activities” after the merger. According to Dick, certain functions were added to the responsibilities of Shaffer’s group after the merger. Dick testified that the size of Shaffer’s staff was reduced after the merger and that this reduction was directly linked to Shaffer’s change in responsibilities. Before the merger, Shaffer reported directly to Dick, but for a period after the merger, Shaffer reported to Aldridge, who in turn reported to Dick. According to Parker, Aldridge’s position was not “internally eliminated” when he left and there was no way for Shaffer to know whether Al-dridge’s position would be filled at a later time. Shaffer testified that Dick indicated that the position would not be eliminated and that he did not know whether it would be filled. Therefore, a summary judgment in favor of Regions based on its allegation that Shaffer failed to present substantial evidence indicating that his “status, title, position, or responsibilities” changed after the merger is not proper.

Shaffer also presented substantial evidence indicating that a genuine issue of material fact exists as to whether, in Shaffer’s “reasonable judgment,” the changes were materially adverse. Shaffer submitted substantial evidence indicating that the following changes, in his judgment, were materially adverse: His job title was less prestigious, he occupied a lower position in Regions’ organizational hierarchy, his staff was reduced in size, he was stripped of substantive job responsibilities, certain responsibilities that he enjoyed were taken away, his job responsibilities were lessened, and his group was placed outside the decision-making loop. If the trier of fact concludes that these changes did in fact occur, then it could find that an ordinary employee in Shaffer’s position would judge these changes to be “materially adverse.” We conclude that the reasonableness of Shaffer’s judgment is a question of fact for the trier of fact to decide. Therefore, a summary judgment in favor of Regions is not proper based on its allegation that it did not breach the change-of-control agreement.

Finally, Shaffer alleges that a summary judgment in favor of Regions is not proper based on its allegation that he breached his fiduciary duty to Regions. Regions argues that the summary judgment was proper because “[p]ursuant to the ‘faithless servant’ doctrine, breach of fiduciary duty is an affirmative defense to a claim by a corporate officer of breach of contract.” Regions’ brief, at 53. Specifically, Regions alleges that Shaffer breached his duty to Regions by serving on a committee that recommended some of the changes he now argues were materially adverse to his employment and by not informing Dick that he thought the recommended changes were materially adverse to his employment when the committee recommended them.

“The proponent of an affirmative defense ‘bears the burden of proving the essential elements of his affirmative defenses.’ ” Ex parte Ramsay, 829 So.2d 146, 152 (Ala.2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000)).

In Edwards v. Allied Home Mortgage Capital Corp., 962 So.2d 194 (Ala.2007), this Court explained the faithless-servant doctrine:

“The faithless-servant doctrine precludes an employee from receiving compensation for conduct that is disloyal to the employer or in violation of the employee’s employment contract. The Restatement (Second) of the Law of Agency § 469 (1958) describes the doctrine:
“ ‘An agent is entitled to no compensation for conduct which is disobedient or which is a breach of his duty of loyalty; if such conduct constitutes a ivilful and deliberate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.’
“(Emphasis supplied.)
“This longstanding doctrine remains effective today. It was first recognized in McGar v. Adams, 65 Ala. 106 (1880). In that case, an agent had been employed to find a purchaser for property belonging to his principal. The agent, who was to receive a commission upon the sale of that property, located a purchaser to whom the principal transferred the property. Before that transaction closed and unbeknownst to the principal, however, the purchaser asked the agent — a banker — for a loan to fund the purchase. In lieu of making that loan, the agent and purchaser entered into an agreement pursuant to which the agent could buy a one-half interest in the property. The purchaser conveyed that one-half interest to the agent and split the sales commission the principal had paid the agent. After learning of the agent’s actions, the principal sued the agent to recover the commission. Considering these facts, the McGar Court stated:
“ ‘An agent who, for a reward, is employed in the transaction of business, will justly forfeit all right to compensation if he is guilty of bad faith to the principal....’
65 Ala. at 109.
“The ‘bad faith’ principle in McGar was reaffirmed in Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931):
“ ‘It is unquestionably the law that it is the duty of an agent to act in matters touching the agency, with due regard to the interest of the principal. In accepting the agency he impliedly undertakes to give his principal his best care and judgment, and to use the powers conferred upon him for the sole benefit of his principal consistent with the purposes of the agency....
“ ‘And “an agent who, for a reward, is employed in the transaction of business, will justly forfeit all right to compensation, if he is guilty of bad faith to the principal.” ... ’
223 Ala. at 536,137 So. at 431.”

962 So.2d at 209-10.

In the present case, there remain genuine issues of material fact regarding whether Shaffer was disloyal to Regions. Regions did not present any evidence indicating that Shaffer’s actions while serving on the committee were unknown to Regions or that Shaffer attempted to mislead Regions with any of his actions. Apparently based on Shaffer’s approval of the recommendations made by the committees he served on, Regions makes a bare allegation that Shaffer “used his position in Regions to engineer a situation that he now claims entitles him to a payment from Regions of nearly half a million dollars.” Regions’ brief, at 56-57. However, Shaffer testified that the committee’s recommendations “made sense for that organization” and that his approval of the recommendations was a fulfillment of his responsibility to build the organization in the best way for Regions. Regions did not present any evidence indicating how Shaffer allegedly manipulated the committee to make recommendations that allegedly benefited him and were unfaithful to Regions. Furthermore, Regions failed to present evidence indicating that Shaffer was dishonest in any of his dealings with Regions concerning the committee recommendations or that the committee recommendations he approved were not in the best interests of Regions. Therefore, a summary judgment in favor of Regions is not proper based on its allegation that Shaffer breached his fiduciary duty to Regions.

Conclusion

Based on the foregoing, we reverse the summary judgment in favor of Regions as to Shaffer’s breach-of-contract claim, and we affirm the summary judgment in favor of Regions as to all other claims. We remand this case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and WOODALL, BOLIN, PARKER, and SHAW, JJ, concur.

      . Generally, a change-of-control agreement allows an employee of a company to receive certain compensation if a change in the control of the company causes the employee's employment to be terminated and certain conditions are satisfied.

      . "Text services” include the day-to-day maintenance of the operating system, capacity planning, and troubleshooting around the infrastructure.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    PALISADES COLLECTION, LLC v. Bryan J. DELANEY.
    2070532.
    Court of Civil Appeals of Alabama.
    July 10, 2009.
    Naomi A. Cohen Ivker of Zarzaur & Schwartz, P.C., Birmingham, for appellant.
    Walden M. Buttram, Gadsden, for appel-lee.
   PITTMAN, Judge.

Palisades Collection, LLC (“Palisades”), appeals from an order of the Etowah Circuit Court denying its motion for relief from that court’s December 6, 2007, order purporting to assess, pursuant to Ala. Code 1975, § 12-19-270 et seq., the Alabama Litigation Accountability Act (“the ALAA”), attorney fees against Palisades following the October 5, 2007, entry of a summary judgment in favor of the defendant, Bryan J. Delaney. We reverse the trial court’s order denying relief.

Palisades sued Delaney in August 2006 on an account-stated claim; damages in the amount of $11,895.35 were sought. After Delaney’s motion to dismiss the action was denied, Delaney answered the complaint with a general denial and asserted that sanctions were due to be imposed upon Palisades under the ALAA because, Delaney said, the account-stated claim was filed “without a legal or factual basis.” Delaney later amended his answer to affirmatively assert that the claim asserted by Palisades was time-barred under the applicable statute of limitations and under the doctrine of laches.

Delaney moved for a summary judgment in his favor based upon his affirmative defenses; in a supporting memorandum, Delaney requested a hearing on his request for ALAA sanctions. That motion was set for an October 4, 2007, hearing. Although Palisades apparently served Delaney, via mail, with a response in opposition to the summary-judgment motion two days before the scheduled hearing, and although the trial court was apparently aware of the contentions made in that response, that response was not filed in the trial court until October 12, 2007, eight days after the hearing and seven days after the trial court had entered a judgment stating: “Defendant’s motion for summary judgment is hereby granted. Done this 5th day of October, 2007.” The trial coui't did not state in its judgment that Delaney was entitled to sanctions under the ALAA, nor did the tidal court schedule any subsequent hearing on the issue of Delaney’s entitlement to relief under the ALAA. Neither party filed a post-judgment motion, and Palisades did not appeal from the summary judgment.

On December 5, 2007, well after the 30-day period for filing a motion to alter, amend, or vacate the judgment had passed (see Rule 59(e), Ala. R. Civ. P.), Delaney filed what he labeled a motion for Palisades “to pay expenses associated with the defense of this matter under the” ALAA, asserting that the claim asserted by Palisades had been without a legal or factual basis and noting that no appeal had been taken from the summary judgment in his favor. The trial court, on December 6, 2007, entered an order purporting to summarily grant Delaney’s ALAA request and directing Palisades to pay Delaney $2,572 as an attorney fee. On December 11, 2007, Palisades filed a motion for relief from the trial court’s December 6, 2007, order; in that motion, Palisades contended, among other things, that the trial court had lacked jurisdiction to enter that order, that the trial court had erroneously concluded that the claim asserted by Palisades had lacked a factual or legal basis, and that no reasons had been stated for the sanctions imposed. The trial court, after a hearing, entered an order on January 22, 2008, indicating that Delaney’s ALAA claim was denied; however, on the next day, January 23, 2008, the trial court entered an order setting aside that order as having been entered in error and stating that Palisades’ motion for relief was denied.

Rule 60(b), Ala. R. Civ. P., provides that a trial court may relieve a party from a final judgment or order for certain reasons, including that the order is “void.” See Rule 60(b)(4), Ala. R. Civ. P. The denial of a Rule 60(b) motion is appealable, see Food World v. Carey, 980 So.2d 404, 406 (Ala.Civ.App.2007), but an appeal from such a denial presents for review only the propriety of that denial; thus, when a motion for relief, such as that filed in this case, attacks an order as being void, the controlling inquiry may be stated as follows: “If the judgment is void, it is to be set aside; if it is valid, it must stand.” Smith v. Clark, 468 So.2d 138, 141 (Ala.1985).

Under Ala.Code 1975, § 12-19-272(a), a part of the ALAA, a trial court determining that a claim or a defense in a civil action has been asserted without substantial justification is to assess against the offending party or attorney reasonable attorney fees and costs “as part of its judgment.” Decisions of both this court and the Alabama Supreme Court have interpreted that portion of the ALAA as requiring either that an award of sanctions under the ALAA be included in the trial court’s final judgment or that jurisdiction to decide the matter of ALAA sanctions be expressly reserved by the trial court in the judgment or a proper postjudgment amendment thereto. See Casey v. McConnell, 975 So.2d 384, 388-89 (Ala.Civ.App.2007); Langham v. Wampol, 902 So.2d 58, 68-69 (Ala.Civ.App.2004); Donnell Trucking Co. v. Shows, 659 So.2d 667, 669 (Ala.Civ.App.1995); Baker v. Williams Bros., Inc., 601 So.2d 110, 112 (Ala.Civ.App.1992); and Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1202 (Ala.2002).

In this case, as in Langham, a defendant’s motion seeking ALAA sanctions “was pending when the trial court entered the summary judgment, and, when the trial court entered the summary judgment, it made no mention of reserving jurisdiction for a determination of attorney fees.” 902 So.2d at 69. Moreover, Delaney did not, as the defendant in Casey did, timely seek an amendment to the final judgment on the merits. 975 So.2d at 389. Thus, as we did in Langham, we hold that the trial court in this case “did not have jurisdiction to award attorney fees after it had entered a summary judgment.” 902 So.2d at 69. The trial court’s December 6, 2007, order was therefore void for lack of subject-matter jurisdiction and should have been vacated by that court in response to the motion for relief filed by Palisades.

The trial court’s order of January 23, 2008, denying the motion for relief filed by Palisades was erroneously entered. We reverse that order, and we remand the cause for the trial court to grant the motion for relief and to vacate its December 6, 2007, void order imposing ALAA sanctions. All other contentions of the parties as to the merits of the appeal are preter-mittecl. Delaney’s motion for an award of attorney fees on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The December 6, 2007, order was itself an appealable final judgment. "[A] final judgment regarding the collateral issues of costs and attorney fees ... will itself support an appeal.” Liberty Mut. Ins. Co. v. Greenway Enters., Inc., 23 So.3d 52, 56 (Ala.Civ.App.2009).


author: THOMPSON, Presiding Judge.

text:
    K-MART, INC., and Certegy Check Services, Inc. v. James T. STEWART and Jane Stewart.
    2080272.
    Court of Civil Appeals of Alabama.
    Aug. 7, 2009.

      Joseph W. Carlisle of Johnston Barton Proctor & Rose LLP, Birmingham, for appellants.
    B. Dale Stracener of The Robinson Law Firm, P.C., Ashville, for appellees.
   THOMPSON, Presiding Judge.

K-Mart, Inc. (“K-Mart”), and Certegy Check Services, Inc. (“Certegy”), appeal from the judgment of the St. Clair Circuit Court awarding James T. Stewart and Jane Stewart $15,000 in damages following a bench trial. For the reasons stated herein, we reverse that judgment.

Certegy provides a service to merchants with regard to their acceptance of checks drawn on customers’ bank accounts. Simply described, when a purchaser presents a check to a merchant that subscribes to Certegy’s service, Certegy will recommend to the merchant, based on the information it has about the purchase!’, whether or not to accept the purchaser’s check. If Certe-gy recommends to the merchant that it accept the check and the cheek is later returned unpaid by the purchaser’s bank, Certegy pays the amount of the check to the merchant and then proceeds against the purchaser for recovery of the amount owed. K-Mart is a nationwide retailer that subscribes to Certegy’s service. James T. Stewart and Jane Stewart (collectively, “the Stewarts,” or, individually, “Mr. Stewart” and “Mrs. Stewart”), are husband and wife. At the times pertinent to this action, they had a joint checking account at Metro Bank (“the bank”).

The parties’ appellate briefs provide largely identical recitations of the factual and procedural background of this case that reveal no disputes over material questions of fact. On November 24, 2006, Mrs. Stewart made a purchase at a K-Mart store using a check drawn on the Stewarts’ checking account. The K-Mart store accepted the check, the check was sent to K-Mart’s bank, and K-Mart’s bank routed the check to a federal clearinghouse for presentation to and payment by the Stew-arts’ bank. During the process of transferring the check, the check was torn so that its routing number became unreadable and it could not be presented to the Stewarts’ bank. The check was returned to K-Mart unpaid. Pursuant to its agreement with Certegy, K-Mart informed Cer-tegy of the fact that the check had been returned unpaid.

On December 9, 2006, having been informed that their check had been returned to K-Mart unpaid, the Stewarts authorized an electronic transfer of funds from their checking account to cover the amount of the unpaid check. Mrs. Stewart spoke with the Stewarts’ bank and learned that the bank had never been presented with the check.

On December 11, 2006, Mrs. Stewart made a purchase at a department store that also subscribed to Certegy’s service. She attempted to pay for her purchase with a check. When her check was fed through the cash register, Mrs. Stewart was informed that the check would not be accepted. A statement was pxinted on the back of the check that read: “We are sorry that we cannot accept your check. Our decision was based in whole or in part on information from Certegy.” She then made her purchase using a credit card and left the store. After leaving the department store, the Stewarts spoke with a representative from Certegy. The representative informed them that their checking account had been flagged as a result of the check that had been returned to K~ Mart unpaid and that it would take some time to clear that information from Certe-gy’s records.

The next day, Mrs. Stewart made a purchase at a home-improvement store that subscribed to Certegy’s service. When she attempted to pay for her purchase with a check, her check was fed through the cash register and was rejected. The check was returned to her with a receipt that read: “We are sorry that your check could not be authorized based in whole or in part on information from Certegy.” Mrs. Stewart then made her purchase using a credit card and left the store.

On December 14, 2006, Certegy wrote to the Stewarts in response to their inquiry of December 11, 2006. In that letter, Cer-tegy apologized for any concern and inconvenience the matter had caused the Stew-arts, indicated that its files had been amended to reflect a “clear” status -with regard to the Stewarts’ checking account, and assured the Stewarts that no adverse information had been shared with any credit-reporting agency. Certegy wrote: “Please be assured that you are ‘clear and positive’ in our system at this time.” On December 29, 2006, Certegy wrote a second letter to Mrs. Stewart in which it again apologized for any inconvenience the matter had caused the Stewarts.

On May 16, 2007, the Stewarts filed an action against K-Mart and Certegy. In their two-count complaint, they alleged that K-Mart and Certegy had inteifeed with their relationship with their bank and that K-Mart’s and Certegy’s actions constituted a nuisance. The trial court held a bench trial in the action on November 17, 2008. Testimony at the trial indicated that the only times pertinent to this case that a check drafted by Mrs. Stewart was refused acceptance were the two times detailed above and that Mr. Stewart did not have any checks rejected during the period pertinent to this case. The Stewarts admitted at the trial that they did not lose the use of their checking account and that they were able to deposit funds into their checking account. Evidence submitted at trial indicates that the Stewarts made seven deposits into their checking account during the months of November and December 2006 and that, during those months, the bank paid 125 checks or other debits from their checking account Mrs. Stewart testified during trial that, during the period in question, she was able to use her checking account and that her relationship with her bank did not change.

Both at the close of the Stewarts’ case and at the close of all the evidence, K-Mart and Certegy moved the trial court to enter a judgment as a matter of law in their respective favors. The trial court denied them motions.

Following the bench trial, on November 20, 2008, the trial court entered a judgment in the Stewarts’ favor. It found that the evidence submitted at trial established all the elements of the Stewarts’ claims of intentional interference with a business relationship and nuisance as to both K-Mart and Certegy. It awarded the Stewarts $500 against K-Mart and $14,500 against Certegy. K-Mart and Certegy appeal.

The standard by which we review a judgment following a bench trial is well settled:

“When ore tenus evidence is pi'esent-ed, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin's, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court's conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

K-Mart and Certegy contend that the trial court erred when it denied their motions for a judgment as a matter of law as to the Stewarts’ claims of intentional interference with their relationship with their bank and nuisance. We address each of those claims in turn.

“The tort of interference with a business relationship is designed to protect property interests in businesses and to compensate for the damage caused by that interference. It is the right to do business in a fair setting that is protected.” Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1353 (Ala.1991) (citing Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908), and Gross v. Lowder Realty Better Homes & Gardens, 494 So.2d 590 (Ala.1986)). In Gross, the supreme court combined the torts of intentional interference with a contract and intentional interference with a business relationship and set forth the following five elements for those torts: (1) a business relationship or contract to which the plaintiff is a party; (2) knowledge by the defendant of that relationship or contract; (3) intentional interference with that relationship or contract by the defendant; (4) a lack of justification for the interference; and (5) damage to the plaintiff. See Gross, 494 So.2d at 597. The fourth element, lack of justification, is an affirmative defense and is not part of the plaintiffs prima facie case. See id. at 597 n. 3.

K-Mart and Certegy contend that there was no evidence presented at trial demonstrating the third element of the Stewarts’ intentional-interference claim, i.e., there was no evidence indicating that they interfered with the Stewarts’ relationship with them bank. We agree.

We will accept for purposes of this appeal that the Stewarts’ relationship with their bank constitutes the kind of relationship subject to their intentional-interference claim because K-Mart and Certegy do not argue otherwise. However, neither K-Mart nor Certegy interfered with that relationship in a manner that could cause them to be liable under the intentional-interference claim. Although, in previous cases, our supreme court has identified, among other things, the termination of a contract and the termination of an employment relationship as the types of actions that could give rise to a claim of intentional interference with a business relationship (see, e.g., Ex parte Awtrey Realty Co., 827 So.2d 104, 109 (Ala.2001), and Thomas v. Williams, 21 So.3d 1234, 1242 (Ala.Civ.App.2008)), no such actions were alleged or proven in the present case.

Throughout the period in which Certegy had “flagged” the Stewarts’ account in its system, the Stewarts were able to transact a substantial amount of business relative to their checking account. They were able to make deposits into their checking account. There was no limitation on their ability to make withdrawals from their checking account. There was no evidence presented at trial indicating that their bank did not pay every check that was presented to it during that period. Most important, there was no evidence indicating that any contractual relationship that the Stewarts had with their bank was altered in any manner as a result of any action taken by either K-Mart or Certegy.

The actions the Stewarts allege on the part of K-Mart and Certegy, and the evidence adduced at the bench trial, simply do not rise to a level of interference with the Stewarts’ relationship with their bank that gives rise to liability in tort. As a result, the trial court erred when it failed to grant K-Mart’s and Certegy’s motions for a judgment as a matter of law with regard to the Stewarts’ claim that K-Mart and Certegy intentionally interfered with their business relationship with their bank.

As previously noted, the trial court also based its judgment in favor of the Stewarts on their claim that K-Mart’s and Certegy’s actions with regard to the unpaid check returned to K-Mart and the two checks written by Mrs. Stewart that the department store and the home-improvement store rejected constituted a nuisance. K-Mart and Certegy contend that they did not deprive the Stewarts of the use and enjoyment of their checking account as would be necessary to constitute a nuisance and that the acts of which the Stewarts complain were not sufficiently recurrent in nature to give rise to a claim of nuisance.

In Russell Corp. v. Sullivan, 790 So.2d 940, 951 (Ala.2001), our supreme court wrote:

“ ‘A “nuisance” is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of fastidious taste, but it should be such as would affect an ordinary reasonable man.’
“Ala.Code 1975, § 6-5-120. This statute is a codification of Alabama’s common-law nuisance principles. This Court has recognized that even a lawful and careful activity, when combined with culpable acts, constitutes a nuisance if the activity hurts, inconveniences, or damages the complaining party. See Tipler v. McKenzie Tank Lines, [547 So.2d 438 (Ala.1989)] ...
“In Alabama, a nuisance can be either private or public. ‘A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals.’ Ala.Code 1975, § 6-5-121; Hunter-Benn Co. v. Nelson, 267 Ala. 472, 103 So.2d 783 (1958).”

In addition, our supreme court has written that

“the term ‘nuisance’ involves the idea of recurrence of the acts causing the injury.... ‘There is a wide difference between tort, constituting an invasion of personal and contract right, and nuisance. The former expends its force in one act, although injurious consequences may be of lasting duration. A nuisance involves the idea of continuity or recurrence.’ ”

Banks v. Harbin, 500 So.2d 1027, 1029 (Ala.1986) (quoting McCalla v. Louisville & Nashville R.R., 163 Ala. 107, 110-11, 50 So. 971, 972 (1909)). Citing Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979), this court has written that “[t]he law of nuisance applies when there is an interference with the use and enjoyment of one’s property.” Huff v. Smith, 679 So.2d 259, 261 (Ala.Civ.App.1996).

We agree with K-Mart and Certegy that there was no evidence presented at trial indicating that Mr. Stewart ever lost the use and enjoyment of his checking account. He testified that no check he had written on the checking account had ever been rejected by a merchant or that he actually had been inhibited in any way from using his checking account. Indeed, he testified specifically that he had never lost the use and enjoyment of the checking account. As a result, the defendants were due a judgment as a matter of law on his nuisance claim.

Moreover, as to both Mr. Stewart and Mrs. Stewart, the record does not support a conclusion that the incidents on which they base then1 nuisance claim were sufficiently continuing and recurring to give rise to liability for a nuisance. In Banks v. Corte, 521 So.2d 960 (Ala.1988), our supreme court examined a claim that a company had conducted a series of three controlled burns over the course of three days and that, on the day following the last controlled burn, the smoke from those controlled burns had obstructed vision on a nearby road, resulting in an eight-car collision. The plaintiff, the executor of the estate of a passenger killed in the collision, claimed that the company's actions in conducting the controlled burns constituted a nuisance. The trial court entered a summary judgment in favor of the company on the plaintiffs nuisance claim, and, on appeal, the supreme court affirmed. Among other things, the supreme court held that the fact that the company had conducted only three controlled burns did not constitute evidence of a nuisance that was sufficiently continuing or recurring as would give rise to liability for the tort of nuisance. Banks v. Corte, 521 So.2d at 962.

In the present case, there are only three acts of the defendants on which the Stew-arts base their nuisance claim. The first is K-Mart’s reporting to Certegy that the check drafted by Mrs. Stewart was returned to K-Mart unpaid. The second and third acts are, respectively, Certegy’s advice to the department store and to the home-improvement store that those stores not accept the checks that Mrs. Stewart had tendered in payment of the goods she sought to purchase. As with the three controlled burns examined in Banks v. Corte, the incidents in the present case, which are only three in number and which were quickly resolved, were not sufficiently recurring to constitute a nuisance. See Banks v. Corte, 521 So.2d at 962.

Based on the foregoing, we conclude that there was insufficient evidence to support either of the Stewarts’ claims against K-Mart and Certegy. As a result, the trial court erred when it denied K-Mart’s and Certegy's motions for a judgment as a matter of law. Therefore, we reverse the trial court’s judgment and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . The Stewarts have never asserted that either K-Mart or Certegy interfered with their business relationships with those merchants that. on Certegy's advice, refused to allow Mrs. Stewart to make her purchases by check. As a result, we do not address that issue.

      . The Stewarts argue that it was Certegy's flagging of their bank account in its system that constituted a nuisance and, as a result, that the acts they allege caused a nuisance were sufficiently recurring in nature. However, the act that could be argued to have proximately caused the two merchants to refuse to accept a check from Mrs. Stewart was not Certegy's flagging of the Stewarts' bank account in its system but Certegy's advising the two merchants that they should not accept Mrs. Stewart’s checks. This advice was the only act committed by either defendant that could be seen as the proximate cause of any damage the Stewarts may have suffered by the refusal of the two merchants to accept Mrs. Stewart's checks. As noted above, those two instances of advice were not sufficiently recurring in nature to give rise to liability on the part of either defendant for nuisance.


author: THOMAS, Judge.

text:
    ACCENT REALTY, INC., d/b/a Century 21 Steele & Associates v. Timothy S. SNOPL.
    2080229.
    Court of Civil Appeals of Alabama.
    Aug. 14, 2009.

      Melissa D. Endlsey and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellant.
    J. Breck Robinson of J. Breck Robinson & Associates, P.C., Huntsville, for appel-lee.
   THOMAS, Judge.

Accent Realty, Inc., d/b/a Century 21 Steele & Associates (“Accent Realty”), appeals from an order of the Madison Circuit Court compelling it to arbitrate its claims against Timothy S. Snopl. We reverse and remand.

Facts and Procedural Histm"y

In 2006, Snopl became interested in purchasing multiple real-estate properties in the Huntsville area, and, in order to view a large number of properties, Snopl participated in a bus tour of properties in the area. In order to participate in the tour, Snopl was required to enter into an “exclusive buyer agency agreement” (“the contract”) with Accent Realty. Snopl agreed in the contract to use Accent Realty exclusively as his real-estate agent for any transactions to purchase property in North Alabama between April 25, 2006, and July 24, 2006. The contract contained an arbitration clause that stated, in pertinent part:

“[T]he transaction contemplated in this agreement directly involves interstate commerce, and said transaction has been and will continue to be regulated by the laws of the United States of America; and, that the contract(s) entered into by the parties concerning this property evidence transaction involving and affecting commerce.”

In June 2007, Accent Realty sued Snopl, alleging in its complaint that Snopl had breached the contract by purchasing several properties during the pertinent period through another real-estate agency. Snopl answered and filed a counterclaim, demanding a trial by jury. On February 22, 2008, Snopl moved the trial court to stay the proceedings and to compel arbitration. On July 18, 2008, the trial court granted Snopl’s motion to compel arbitration. Accent Realty timely appealed to the Alabama Supreme Court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Accent Realty argues that the trial court erred in granting Snopl’s motion to compel arbitration because, it asserts, Snopl did not submit sufficient evidence to show that the contract involved interstate commerce. Accent Realty also argues that Snopl waived his right to compel arbitration by substantially invoking the litigation process and that Snopl cannot disavow the contract while simultaneously attempting to enforce the arbitration provision contained within it.

“ ‘We review de novo the trial court’s ruling on a motion to compel arbitration. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999).’ Massey Automotive, Inc. v. Morris, 895 So.2d 215, 217 (Ala.2004). “‘A ‘party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce,’ ” ’ Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003) (quoting Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)), within the meaning of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (‘the FAA’). This is so, because the FAA makes specifically enforceable a “written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy ... arising out of such contract or transaction.’ 9 U.S.C. § 2.
“ ‘[T]he term “involving commerce” in the FAA [is] the functional equivalent of the ... familiar term “affecting commerce” — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power.’ Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (emphasis added). ‘Congress’ Commerce Clause power “may be exercised in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” ’ 539 U.S. at 56-57, 123 S.Ct. 2037, 156 L.Ed.2d 46 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). Nevertheless, ‘[t]he party moving for arbitration must “ ‘produce some evidence which tends to establish its claim’ ” ’ that the transaction involved interstate commerce. White, 869 So.2d at 1131 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995)(opinion on application for rehearing)).”

Adcock v. Adams Homes, LLC, 906 So.2d 924, 929 (Ala.2005).

In support of his motion to compel arbitration, Snopl offered only a copy of the contract that he had entered into with Accent Realty. The contract merely contains a bare assertion that the contract is one involving interstate commerce. Snopl did not offer any evidence by affidavit or otherwise to show that the contract involved interstate commerce. This is insufficient to meet Snopl’s burden of proof. See Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348, 353-54 (Ala.2002)(“0ther than incorporating by reference the agreement attached to Morris’s complaint, Maxwell failed to submit any evidence showing that the agreement evidenced a transaction that affected, to any degree, interstate commerce.”); see also Keene v. Hayden, 964 So.2d 10, 11 (Ala.2007) (“In support of their motion to compel arbitration, the Haydens offered a single document, namely, the real-estate sales contract between the Keenes and them. They offered no evidence, by affidavit or otherwise, tending to establish that the transaction underlying the contract involved interstate commerce.”). Snopl did make assertions in his brief in support of his motion to compel arbitration that, if true, would tend to show that the contract involved a transaction affecting interstate commerce. However, “arguments of counsel are not evidence.” Keene, 964 So.2d at 11 (citing Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004); Ex parte Coleman, 861 So.2d 1080, 1084 (Ala.2003); and Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000)).

Because Snopl did not provide sufficient evidence to the trial court to show that the contract that he and Accent Realty had entered into involved interstate commerce, the trial court’s order staying the proceedings and compelling arbitration is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . Because we hold that Snopl did not provide the trial court with sufficient evidence indicating that the contract involved a transaction affecting interstate commerce, we need not decide whether Snopl waived his right to compel arbitration or whether Snopl may enforce the arbitration provision of the contract while allegedly disavowing the remainder of the contract.


text:
    Al Joseph FELDER, Sr. v. Richard ALLEN, Commissioner of the Alabama Department of Corrections, et al.
    2080326.
    Court of Civil Appeals of Alabama.
    Aug. 14, 2009.

      A1 Joseph Felder, Sr., pro se.
    Troy King, atty. gen., and J. Matt Bled-soe, asst. atty. gen., for appellees.
   THOMAS, Judge.

A1 Joseph Felder, Sr., was convicted of a drug-related offense in case number CC-90-92. In 1996, the Montgomery Circuit Court entered a judgment vacating Felder’s conviction in case number CC-90-92. Felder was incarcerated in federal prison until January 20, 2005, at which time the State of Alabama, pursuant to a fugitive warrant and extradition petition based on the sentences imposed in case number CC-90-92, took custody of Felder and incarcerated him in a state prison. See Felder v. State, 943 So.2d 802 (Ala.Crim.App.2006). Felder objected to his incarceration because, as noted earlier, his conviction in case number CC-90-92 had been vacated in 1996.

Felder filed a petition for the writ of habeas corpus in the Escambia Circuit Court at some point after he was incarcerated in a state prison. Felder, 943 So.2d at 802. The Escambia Circuit Court summarily dismissed Felder’s petition, and Felder appealed that dismissal to the Court of Criminal Appeals. Id. The Court of Criminal Appeals remanded the action to the Escambia Circuit Court for it to hold a hearing on the merits of Felder’s petition. Id. The Escambia Circuit Court held the required hearing, at which the Alabama Department of Corrections (“DOC”) conceded that the Montgomery Circuit Court’s 1996 judgment had vacated the conviction in case number CC-90-92; upon return to remand, the Court of Criminal Appeals, in an unpublished memorandum issued on May 12, 2006, dismissed Felder’s appeal because the Escambia Circuit Court had granted his petition for the writ of habeas corpus. See note from the reporter of decisions, Felder, 943 So.2d at 803. Felder was released from state prison on June 1, 2006, after having been unlawfully incarcerated for nearly 17 months.

In May 2008, Felder filed an action in the Montgomery Circuit Court (“the trial court”), pursuant to 42 U.S.C. § 1983, against Richard Allen, the Commissioner of DOC; Donal Campbell, the former Commissioner of DOC; Renee Barker, an employee in the central records division of DOC; Katrina Atkins, an employee in the central records division of DOC; Betty Teague, the former director of the central record division of DOC; Jerry Farrell, the former warden of Fountain Correctional Facility; Debra Hackett, the former circuit clerk of Montgomery County; and Melissa Rittenour, the present circuit clerk of Montgomery County. In his complaint, Felder alleged, generally, that the defendants had violated his constitutional rights by incarcerating him in a state prison without a valid conviction. In his complaint, Felder alleged that Allen and Campbell “knew or should have known” of the illegality of his confinement; regarding all other defendants, Felder alleged that they “were informed” or had notice of the illegality of Felder’s confinement. Felder alleged that his illegal confinement violated his rights under both the Thirteenth and the Fourteenth Amendments to the United States Constitution. Felder later amended his complaint to add Kathy Holt, another employee of the central records division of DOC, as a defendant.

Although Campbell, Atkins, and Teague were not served, the Attorney General filed a motion to dismiss Felder’s complaint on behalf of all defendants except Campbell. In that motion, the Attorney General alleged that the defendants, insofar as they were sued in their official capacities, were entitled to immunity under the Eleventh Amendment of the United States Constitution and that, insofar as they were sued in their individual capacities, Felder’s “claims ... cannot be maintained for failure to release the plaintiff from prison or failure to tell someone else to release him from prison, prior to the appellate court ruling issued on May 12, 2006.” DOC later filed an answer on behalf of Allen, Farrell, Barker, and Holt (hereinafter “the DOC defendants”); in that answer, DOC asserted that Felder’s complaint was due to be dismissed for failure to state a claim upon which relief could be granted and specifically claimed that the DOC defendants were entitled to sovereign immunity and/or qualified immunity.

After a hearing, the trial court entered a judgment dismissing Felder’s claims against all defendants. The judgment, in its entirety, reads:

“The above-styled matter comes before the Court on Defendants’ MOTION TO DISMISS. Having heard arguments and considering the pleadings and submissions of [the] Parties, the Court finds that the MOTION is due to be and is hereby GRANTED. Although there was some debasement of Felder’s rights, the Court finds that the Defendants named in this suit are protected by sovereign, qualified, and state agent immunity, and there is no means by which to compensate Felder for said debasement of rights. Therefore it is hereby ORDERED that the matter is hereby DISMISSED WITH PREJUDICE.”

(Capitalization in original.) Felder appealed the dismissal of his complaint to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

“ ‘When the sufficiency of a complaint is at issue, this Court will liberally construe the complaint in favor of stating a claim for relief. “Dismissals under Rule 12(b)(6)[, Ala. R. Civ. P.,] should be granted sparingly, and such a dismissal is proper only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief.” Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986). “ ‘ “Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff.” ’ ” Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994), quoting Grant v. Butler, 590 So.2d 254, 255 (Ala.1991), quoting in turn Greene County Bd. of Educ. v. Bailey, 586 So.2d 893, 897-98 (Ala.1991).
“ ‘ “Unless it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief under some cognizable theory of law, the court should not grant a motion to dismiss a complaint.” American Auto. Ins. Co. v. McDonald, 812 So.2d 309, 311 (Ala.2001), citing Rice v. United Ins. Co. of America, 465 So.2d 1100 (Ala.1984). In our review, we need not determine “whether the plaintiff will ultimately prevail, only whether he has stated a claim on which he may possibly prevail.” Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).’ ”

McCammon v. Youngblood, 853 So.2d 249, 251 (Ala.Civ.App.2002) (quoting Radenhausen v. Doss, 819 So.2d 616, 619-20 (Ala.2001)).

Felder does not appear to challenge the trial court’s dismissal insofar as it applied to claims asserted against the defendants in their official capacities. It is well settled that “‘[t]he State of Alabama, its agencies, and its officials acting in their official capacities are not considered “persons” for purposes of an action for damages under 42 U.S.C. § 1983.’” King v. Correctional Med. Servs., Inc., 919 So.2d 1186, 1191 (Ala.Civ.App.2005) (quoting State Dep’t of Pub. Safety v. Sexton, 748 So.2d 200, 216 (Ala.Civ.App.1998) (citing in turn Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991))); see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that a state is not a “person” under § 1983 and therefore that a § 1983 action brought in state court could not be maintained against a state), and Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (holding in a § 1983 action brought in federal court that § 1983 does not override Eleventh Amendment immunity). Insofar as the judgment dismissed the claims against the defendants in their official capacities, the judgment is affirmed.

However, Felder does argue that, under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the defendants were not entitled to qualified immunity because the conduct of the defendants “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” We agree.

“ ‘While the defense of qualified immunity is typically addressed at the summary judgment stage of a case, it may be, as it was in this case, raised and considered on a motion to dismiss. See Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001). The motion to dismiss will be granted if the “complaint fails to allege the violation of a clearly established constitutional right.” Id. (citing Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Whether the complaint alleges such a violation is a question of law that we review de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. Id.’ ” be free from confinement under the vacated conviction under the Fourteenth Amendment, as will be explained infra, we will not consider whether Felder’s confinement was a violation of his rights under the Thirteenth Amendment.

Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 402-03 (Ala.2003) (quoting St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.2002)) (emphasis omitted). We must determine, then, whether Felder’s complaint meets the above-stated requirement that it allege a violation of a clearly established constitutional right.

Felder alleged in his complaint and argues on appeal that his rights under both the Thirteenth Amendment and the Fourteenth Amendment were violated by his unlawful confinement. Our first inquiry is “whether ‘the applicable law was clearly established at the time of the challenged action.’” Ex parte Hale, 6 So.3d 452, 459 (Ala.2008) (quoting Adams v. Franklin, 111 F.Supp.2d 1255, 1263-64 (M.D.Ala.2000)). However, federal courts have held that allegations of false imprisonment, such as Felder’s accusation that he was confined based on a vacated conviction can be a violation of the Fourteenth Amendment. See Davis v. Hall, 375 F.3d 703 (8th Cir.2004); Slone v. Herman, 983 F.2d 107 (8th Cir.1993); Cannon v. Macon County, 1 F.3d 1558 (11th Cir.1993); and Douthit v. Jones, 619 F.2d 527 (5th Cir.1980). Thus, we conclude that the right to be free of the conduct that Felder alleged in his complaint — confinement under a vacated conviction — is a clearly established constitutional right.

We must now turn to whether the specific conduct that Felder alleges each defendant committed would, in fact, amount to a “ ‘ “ ‘violation of [that] clearly established constitutional right.’ ” ’ ” Ex parte Hale, 6 So.3d at 459 (quoting Ex parte Alabama Dep’t of Youth Seros., 880 So.2d at 402 (quoting in turn St. George, 285 F.3d at 1337 (quoting in turn Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001)))) (emphasis added). To determine whether Felder has sufficiently alleged claims against each defendant, we must consider the allegations raised in the complaint and we must “ ‘accept[ ] the facts alleged in the complaint as true and draw[ ] all reasonable inferences in [Felder’s] favor.’ ” Ex parte Hale, 6 So.3d at 459 (quoting Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 403). Felder alleged specifically that Barker, Holt, Hackett, and Rittenour were all informed of Felder’s illegal confinement but failed to

“resolve” it. Felder alleged specifically that Farrell “was put on notice that [Felder] was being illegally detain[ed] due Tto the] March 7, 1996[, judgment vacating the conviction in case number CC-90-92], but failed to resolve this illegal act.” Regarding Allen, Felder alleged that he “knew or should have known that a valid and uricon-tested court order shall be enforee[d] according! ] to the law, but he failed to resolve this illegal act.” In general, Felder alleged in his complaint that “each of the defendants were giv[en] notice that their action was violating [Felder’s] fourteenth amendment rights (DUE PROCESS AND EQUAL PROTECTION CLAUSE)” and that “each defendant in this said cause had authority to correct this illegal activity (false conviction) or report this illegal activity to someone in authority higher than them, but each failed to do so, upon notice of sendee, depriv[ing] [Felder] of his liberty interest, in violation of his constitution rights due to [the] incarceration] [of Felder] without jurisdiction of the court and probable cause.” (Capitalization in original.) Felder further alleged that he “show[ed] on numerous of occasion [sic] to defendants that the conviction that the defendants reference as basis of their fugitive warrant is a case that was ruled on by Montgomery Circuit Court ... granting [Felder’s] relief on March 1, 1996 (all charges and sentences vacated).”

Felder’s allegations, when accepted as true, as they must be on our review of the dismissal of his complaint, Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 403, establish that the defendants incarcerated Felder based on a vacated conviction depriving Felder of his liberty without due process of law. Felder alleged that each defendant, other than Allen, “was informed” or “was put on notice” of his claim of illegal confinement and of the 1996 judgment vacating the conviction in case number CC-90-92. Regarding Allen, Felder alleged that he knew or should have known of the illegality of Felder’s confinement; however, in Felder’s more general allegations, Felder indicated that the basis of each defendant’s knowledge of Felder’s illegal confinement was actual notice of the 1996 judgment vacating his conviction.

At this stage of the proceedings, we cannot agree with the trial court that the defendants have proven entitlement to qualified immunity. Felder’s allegations, when accepted as true, indicate that the defendants all had notice of the 1996 judgment vacating the conviction in case number CC-90-92 and that, despite knowledge of that judgment, did nothing to determine whether, in fact, Felder’s continued confinement was legal. Because Felder has alleged the violation of a clearly established constitutional right, the trial court’s dismissal of his § 1983 claims against the defendants in their individual capacities was error. We therefore reverse the trial court’s judgment dismissing Felder’s complaint insofar as it alleges a § 1983 claim against each defendant in their individual capacity, and we remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Felder argues on appeal that the trial court erred in dismissing Allen and Rittenour, who were successors to Campbell and Hackett, respectively, and who, therefore, he argues, were properly made parties pursuant to Rule 25(d)(1), Ala. R. Civ. P. However, because the trial court dismissed all the defendants on the basis of immunity, we will not address Felder’s successor-party argument.

      . Felder makes no argument on appeal concerning the trial court's reliance on the State-agent-immunity doctrine, and no party advanced State-agent immunity as a basis for the dismissal. Because State-agent immunity is not applicable to a § 1983 action, see King v. Correctional Med. Servs., 919 So.2d at 1191, the trial court's reference to it must have been in error.

      . Felder has not cited any authority recognizing that a clearly established constitutional right to be free from confinement under a vacated conviction arises under the Thirteenth Amendment. But see Pahk v. Hawaii, 109 F.Supp.2d 1262 (D.Haw.2000) (denying qualified immunity to officials who had discharged the plaintiff from probation but had subsequently rescinded his discharge without due process while considering a plaintiff's claim under § 1983 alleging a violation of the Thirteenth Amendment right to be free from involuntary servitude). As noted in the text, infra, Felder’s claim is essentially a claim of false imprisonment, and it is typically analyzed, for purposes of a § 1983 claim, under the Fourteenth Amendment. However, some federal circuits consider such claims under the Eighth Amendment. See, e.g., Moore v. Tartler, 986 F.2d 682 (3d Cir.1993); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985). Because the caselaw supports a conclusion that Felder had a clearly established right to


author: BRYAN, Judge.

text:
    Ex parte S.C. (In re S.C. v. C.C.)
    2080419.
    Court of Civil Appeals of Alabama.
    Aug. 14, 2009.

      Floyd C. Enfinger, Jr., Montrose, for petitioner.
    Thomas P. Ollinger, Jr., Mobile, for respondent.
   BRYAN, Judge.

S.C. (“the mother”) petitions this court for a writ of mandamus directing the Baldwin Circuit Court to set aside its order dated January 26, 2009, which suspended the counseling relationship between the parties’ only child (“the child”) and Julia Summerlin, the child’s counselor. For the reasons set forth below, we grant the petition.

As part of their divorce judgment, the mother and C.C. (“the father”) entered into a settlement agreement in July 2007 that awarded primary physical custody of the child to the mother and awarded the father supervised visitation. The mother and the father agreed to “participate in counseling with Julia Summerlin for the benefit of the minor child.”

In December 2007, the father filed a “Motion for Rule Nisi and Modification Petition” in which he argued that the settlement agreement was internally inconsistent regarding his visitation privileges and in which he sought a modification of the settlement agreement regarding his visitation with the child. In that petition, the father alleged that he had “visited” Sum-merlin “without success.” On July 1, 2008, the trial court denied the father’s petition for a rule nisi, but it set forth a visitation schedule for the father for the months of July, August, September, October, and November, and it set the case for review in October 2008.

Following a hearing on October 30, 2008, the trial court issued an order on November 14, 2008, that set forth a visitation schedule for the father for the months of November and December and that stated:

“The [child] ... shall continue to see Ms. Julia Summerlin, as [the mother] deems prudent. [The father] ... has proposed to voluntarily seek parenting skill enhancement [with] Dr. France Frederick ... and/or joint parent/child counseling with he and [the child] therewith. This Court approves such proposal and awaits the results thereof at the next succeeding hearing.”

Following the entry of that order, Sum-merlin referred the child to Dr. Daniel Koch, a forensic psychologist, who Sum-merlin described as an “expert” in parental alienation syndrome. The child was evaluated by Dr. Koch at some point in late November 2008. However, the mother refused to allow the child to meet with Dr. Frederick based on a concern expressed by Summerlin that it would violate the American Psychological Association Guidelines of Ethical Standards and Principles for the child to receive treatment by Dr. Frederick while she was being counseled by Summerlin. The father filed a motion to compel the mother to abide by the trial court’s November 14, 2008, order and to allow the child to participate in joint counseling with the father and Dr. Frederick, and the mother filed a response to the father’s motion to compel based on Sum-merlin’s ethical concerns.

The parties argued their motions before the trial court at a hearing on January 7, 2009. The trial court orally announced its judgment at the hearing, stating that it was necessary, in light of the child’s best interest and the ethical concerns presented, to suspend the counseling relationship between the child and Summerlin so that the child could begin counseling with the father and Dr. Frederick. The mother’s counsel took exception to the trial court’s order, and the court permitted the mother to proffer her own testimony, as well as the testimony of Summerlin and Dr. Koch.

Summerlin testified that she had been counseling the child for approximately three years and that she was willing to continue to counsel the father, despite his reluctance to continue the relationship. Summerlin stated that she believed that it was not in the best interest of the child and that it would be detrimental to the child for the counseling relationship between her and the child to be suspended. She stated that changing the child’s counselor would be harmful to the child because she and the child had developed a trusting relationship. Summerlin stated that she had sought Dr. Koch’s opinion regarding the child because she had wanted to find out if she was “on track” and had wanted to ask Dr. Koch’s opinion regarding her possible ethical dilemma.

Dr. Koch testified that he had evaluated the child but had not treated the child. His evaluation of the child showed that the child had suicidal ideations, and he believed that it would be risky to suspend the therapeutic relationship between the child and Summerlin. Dr. Koch stated that the appropriate way to counsel the father and the child together would be for the child and Summerlin to meet with the father and his counselor. Dr. Koch believed that, in this scenario, the child would be “protected” and the four individuals could work on the relationship between the child and the father together.

The father produced no witnesses and offered no evidence to refute the testimony of Summerlin and Dr. Koch that suspending the counseling relationship between the child and Summerlin would be harmful to the child. The trial court entered a written order on January 26, 2009, which stated:

“1. The Court accepts the proffer made from counsel for the Mother ... that the order entered by this court which directed [the child] to continue counseling with [the] existing counselor, Julia Summerlin and to engage in additional counseling with [the] father and Dr. France Frederick cannot be enforced as it violates the Rules of Ethics to which these psychologists are bound to adhere.
“2. Therefore, [that part] of the Court’s order of [November 14, 2008, which orders counseling for the child with both Summerlin and Dr. Frederick] is hereby vacated in its entirety.
“3. The Court recognizes that the minor child has been in counseling with Ms. Summerlin for the past two and one-half years, and further, that the child has developed a bond with said counselor, there has been no significant advancement in the relationship between the child and the father. While the Court recognizes the benefit to the minor child to continue her counseling with Ms. Summerlin, the same is outweighed by what the Court deems is in the child’s best interest, to-wit: the necessity to reconcile and further promote the relationship between this minor child and [the] father. The Court notes that there has been no progress in this regard since the inception of this matter.
“4. In order to do this within the bounds of professional ethics, the Court deems it necessary to order the following: the counseling sessions between Julia Summerlin and the minor child shall be suspended; Dr. France Frederick is hereby appointed by the Court as counselor in this matter, and as such shall conduct joint parent/child counseling with the minor child and [the] father ....
“5. The Court reserves jurisdiction to enter an[y] further orders that the court deems are in the interest and welfare of the minor child.”

The mother filed this petition for a writ of mandamus on February 6, 2009. She argues that, based on the undisputed testimony of Summerlin and Dr. Koch that it would be against the best interest of the child to suspend her therapeutic l'elation-ship with Summerlin, the trial court exceeded its discretion by suspending the counseling relationship between the child and Summerlin.

The appellate courts of this state have consistently held that

“ ‘[a] writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United, Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)...
" Ex parte Empire Fire & Matine Ins. Co., 720 So.2d 893, 894 (Ala.1998). ‘Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.’ State v. Cannon, 369 So.2d 32, 33 (Ala.1979).”

Ex parte Showers, 812 So.2d 277, 280-81 (Ala.2001).

The trial court used its discretion in deciding to suspend the counseling relationship between the child and Summerlin. As stated above, this court does not have power to compel the exercise of a trial court’s discretion in a particular' manner, except when the trial court has exceeded its discretion. State v. Cannon, 369 So.2d 32, 33 (Ala.1979). After a review of the record, particularly the testimony of Sum-merlin and Dr. Koch, we conclude that the trial court exceeded its discretion hi suspending the counseling relationship between the child and Summerlin because uncontroverted evidence showed that suspending the counseling relationship would be harmful to the child and detrimental to her best interest.

It was undisputed that the child had been counseled by Summerlin for approximately three years and that she and the child had developed a trusting relationship. Further, both Summerlin and Dr. Koch testified that removing the child from the counseling relationship with Summerlin could harm the child, and Summerlin stated, in no uncertain terms, that it would be against the best interest of the child. Dr. Koch even testified that suspending the counseling relationship would be “risky” due to the child’s expressed suicidal idea-tions.

When a trial court hears evidence ore tenus, “[w]e will not reverse the trial coiirt’s judgment unless it is unsupported by the evidence so that it is plainly and palpably wrong.” Page v. Page, 562 So.2d 272, 278 (Ala.Civ.App.1990); see Newsome v. Newsome, 984 So.2d 463, 465 (Ala.Civ.App.2007); and Bishop v. Knight, 949 So.2d 160, 166 (Ala.Civ.App.2006). See also Turnbull v. Rencher, 53 Ala.App. 12, 15, 296 So.2d 912, 914 (Ala.Civ.App.1974) (In a mandamus proceeding to review the judgment of a trial court after it has heard evidence ore tenus, “the usual presumption in favor of the correctness of the [trial] court’s findings of fact is indulged.”). In light of the fact that the father failed to produce any evidence to indicate that the best interest of the child would be promoted by suspending the counseling relationship between the child and Summerlin, we conclude that the trial court’s decision to suspend the counseling relationship was unsupported by the evidence and, therefore, was plainly and palpably wrong.

We commend the trial court for seeking a remedy that would foster a relationship between the child and the father, and we agree that it is essential that the child develop a relationship with the father. However, we cannot ignore, as the trial court has done, the undisputed fact that to suspend the counseling relationship between the child and Summerlin would be detrimental to the child and not in the child’s best interest. See Ex parte Ward, 782 So.2d 1285, 1288 (Ala.2000) (“A trial court cannot ignore undisputed evidence.”).

We hold that the mother has a clear legal right to a judgment that is supported by the evidence submitted. Because we conclude that the trial court exceeded its discretion by ordering the suspension of the counseling relationship between the child and Summerlin, a writ of mandamus will lie to compel the trial court to set aside its order suspending the counseling relationship. See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969), and State v. Cannon, 369 So.2d at 33.

PETITION GRANTED; WRIT ISSUED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . Although the father does not specify why his "visitation” with Summerlin was "without success,” we assume, based on other portions of the record, that the father and Summerlin did not get along and that the father believed that Summerlin was not succeeding in fostering a relationship between the child and the father.

      . We believe that Dr. Koch presented the trial court with a scenario that would promote the best interest of tire child, i.e., continuing the counseling relationship between the child and Summerlin while fostering a relationship between the child and the father. Nothing in this opinion is meant to discourage such an arrangement. In fact, because the order suspending the counseling relationship between the child and Summerlin is not a final judgment, the trial court is not prohibited from receiving additional evidence before fashioning an appropriate order. But see East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969) (mandamus will not issue to compel the exercise of the trial court's discretion in a particular manner).