AIG Baker Orange Beach Wharf, L.L.C. (“AIG”), the plaintiffieounterclaim-defen-dant below, petitions this Court for a writ of mandamus directing the trial court to vacate an order denying its motion to strike the jury demand of the defendants/eounterclaim-plaintiffs, Coastal Couture, LLC (“Coastal”), and Coastal’s owner, Tosha L. Corrigan. For the reasons stated below, we grant the petition and issue the writ.
Facts and Procedural History
In September 2006, AIG entered into a retail lease agreement with Coastal whereby Coastal leased from AIG premises in The Wharf, a retail shopping center in Orange Beach. The lease agreement contained a provision entitled “mutual waiver of jury trial,” which provided, in pertinent part:
“Tenant and Landlord hereby waive any right to a trial by jury on any claim, counterclaim, setoff, demand, action or cause of action brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way pertaining or relating to: (i) this Lease; (ii) the relationship of Landlord and Tenant; (iii) the use and occupancy of the Premises; or (iv) in any way connected with or pertaining or relating to or incidental to any dealings of the parties hereto with respect to this Lease, or any other matter or controversy whatsoever between the parties; in all of the foregoing cases whether now existing or hereafter arising. Tenant and Landlord agree that either or both of them may file a copy of this provision with any court as written evidence of the knowing, voluntary, and bargained agreement between the parties irrevocably to waive trial by jury, and that any dispute or controversy whatsoever between them shall instead be tried in a court of competent jurisdiction by a judge sitting without a jury.”
The lease agreement, which indisputably contained the foregoing waiver, was executed by Corrigan on Coastal’s behalf. Contemporaneously with the execution of the lease agreement, Corrigan also executed a separate “Guaranty of Lease,” wherein she personally guaranteed Coastal’s performance of the lease with AIG. The separate guaranty document also contained a provision waiving the right to a trial by jury that is substantially identical to the language set out above. 1
On May 11, 2007, Coastal took possession of the retail space at The Wharf; however, Coastal failed to make any rent payments, and AIG ultimately terminated the lease. On January 24, 2008, AIG filed an unlawful-detainer action against Coastal and Corrigan in the Baldwin District Court and subsequently obtained a judgment in its favor. Coastal and Corrigan appealed to the Baldwin Circuit Court, at which time AIG amended its previous complaint to seek both unpaid and accelerated rent under the lease agreement and the
Based on the provisions of the lease agreement and the guaranty document, AIG moved to strike the jury demand. Coastal and Corrigan responded by arguing that they were entitled to a jury trial because of alleged fraud in the inducement, which, they contended, led to the execution of the lease agreement and the guaranty document and, thus, occurred before the execution of the lease agreement and the guaranty document and was unrelated to and outside the scope of any provision in the lease agreement and the guaranty document. The trial court denied AIG’s motion, and AIG petitions for mandamus review.
Standard of Review
“Mandamus is an appropriate remedy where the availability of a jury trial is at issue, as it is in this case.”
Ex parte Cupps,
“ ‘ “[t]he writ of mandamus is a drastic and extraordinary writ, to 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); see also Ex parte Ziglar,669 So.2d 133 , 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534 ,] 536 [(Ala.2001) ].’
“Ex parte McWilliams,812 So.2d 318 , 321 (Ala.2001).”
Ex parte Carson,
Discussion
The substantive question presented by AIG’s petition is whether the contractual waiver of the right to a jury trial, as contained in the lease agreement and the guaranty document and set out above, bars a jury trial on Coastal and Corrigan’s tort claims against AIG. Public policy, the Alabama Rules of Civil Proce-
Coastal and Corrigan do not challenge the overall validity or enforceability of the contractual waiver in the present case, nor do they allege misrepresentation or fraud with regard to the jury-waiver provision itself. In fact, in their brief in response to AIG’s petition, Coastal and Corrigan “concede [ ] that the contract claims made by AIG ... against Corrigan as well as Corri-gan’s breach of contract claims against AIG Baker are subject to the jury waiver provision.” (Answer, at p. 4; emphasis added.) 3 Instead, Coastal and Corrigan argue that the waiver does not apply to the tort counts they assert against AIG, specifically, their count of fraud in the inducement.
In
Ex parte Cupps,
this Court examined the scope of a jury-waiver provision. We noted that a provision applying only to claims “arising from” or “arising under” a contract, has a narrow scope and “exclude[d] claims that did not require a reference to, or a construction of, the underlying contract.”
The jury-waiver provision in the present case applies not only to disputes “arising out of or in any way pertaining or relating to” the lease agreement or the guaranty document, which, as noted in
Ex parte Cupps,
has a broad scope, but also to disputes arising out of or in any way pertaining or relating to the relationship of the parties, i.e., “any dealings of the par
In
Selma Medical Center, Inc. v. Manayan,
“The arbitration clause in the contract between the Hospital and Dr. Manayan requires that the parties submit to arbitration ‘any dispute [that] shall arise concerning any aspect of this Agreement.’ This language is broader than the ‘arising out of language that prompted the narrow interpretation of the arbitration agreement in [Old Republic Insurance Co. v. Lanier,644 So.2d 1258 (Ala.1994) ]. Indeed, we conclude that even the decision in [Ex parte Lorance,669 So.2d 890 (Ala.1995),] would require arbitration in the present case, given the ‘concerning any aspect’ language in the arbitration clause in the contract between Dr. Manayan and the Hospital:
“ ‘As long as an arbitration clause is broad enough to encompass claims of fraud in the inducement of the contract in which it is found, any claims as to fraud in the inducement of the contract generally, as opposed to the arbitration agreement specifically, are subject to arbitration. Prima Paint Corp. v. Flood & Conklin Mfg. Co.,388 U.S. 395 ,87 S.Ct. 1801 ,18 L.Ed.2d 1270 (1967); Coleman v. Prudential Bache Securities, Inc.,802 F.2d 1350 (11th Cir.1986); Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,604 So.2d 332 (Ala.1991). Here, the arbitration clause states: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration .... ” Clearly, Dr. Lorance’s claims as to fraud in the inducement of the contract “relat[e] to” the contract, and the arbitration clause is therefore broad enough to encompass those claims.’
“Lorance,669 So.2d at 892-93 (emphasis added).”
In their brief, Coastal and Corrigan argue that the language in the jury-waiver provision restricting its scope to matters “arising out of’ or “relating to” the lease agreement should be narrowly construed. In support of their argument, they point to
Robbins,
in which this Court stated: “[T]hat same public policy that applies the rule of strict construction will likewise limit the scope of operation of a jury waiver agreement to those controversies directly related to and arising out of the terms and provisions of the overall agreement containing the jury waiver provisions.”
In
Ex parte Cupps,
the Court addressed whether these terms should be given the narrow construction suggested by Coastal and Corrigan. Examining
Robbins, Koul-las,
and other precedent, we acknowledged that the terms “arising from” or “arising under” covered only claims requiring a reference to the terms of the contract.
Coastal and Corrigan have conceded that they are not entitled to a jury trial on the pending contract claims of the parties, and we now conclude that their remaining claims are likewise subject to the jury-waiver provisions found in the lease agreement and the guaranty document. Therefore, the trial court erroneously denied AIG’s motion to strike Coastal and Corri-gan’s demand for a jury trial on those claims. For the foregoing reasons, we grant AIG’s petition and issue a writ of mandamus directing the trial court to vacate its order denying AIG’s motion and to enter an order granting AIG’s motion to strike the jury demand as to all claims pending in the trial court.
PETITION GRANTED; WRIT ISSUED.
Notes
. AIG’s petition alleges that Corrigan has been a licensed real-estate agent for six years and, thus, was "very familiar with real estate transactions.” (Petition, at p. 2.) It further alleges that Corrigan was provided “several days” to review the lease agreement and the guaranty document before their execution. (Petition, at p. 5.) Although Corrigan, in her own deposition testimony, indicated that she was unable to recall how long she had to review the lease agreement, she did confirm both her real-estate experience and that she read both the lease agreement and the guaranty document before signing them.
. The eight counterclaims alleged against AIG by Coastal and Corrigan included the following: fraud in the inducement (count I); misrepresentation/fraudulent suppression (regarding the status of the construction of The Wharf project) (count II); breach of contract (count III); negligence (regarding the development, construction, and maintenance of The Wharf) (count IV); willful, wanton, and/or reckless misconduct (count V); rescis-sión (count VI); unjust enrichment (count VII); and a declaratory-judgment action (declaring the lease void) (count VIII). In its petition, AIG contends that the foregoing claims are compulsory counterclaims as defined by Rule 13(a), Ala. R. Civ. P., because, it argues, "they arise out of the same transaction as [AIG's] claims.” (Petition, at p. 17 n. 6.)
. Based upon this concession, we do not interpret Coastal and Corrigan’s claims as falling within the class of fraud termed “fraud in the factum,” or execution, as distinguished from fraud in the inducement.
See Drinkard v. Embalmers Supply Co.,