Rel: May 12, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2022-0675

_________________________

Hyundai Construction Equipment Americas, Inc., and Hyundai 

Heavy Industries Co., Ltd. 

v. 

Southern Lift Trucks, LLC

Appeal from Washington Circuit Court

(CV-22-900029)

_________________________

SC-2022-0676

_________________________
SC-2022-0675 and SC-2022-0676

2

Hyundai Construction Equipment Americas, Inc., and Hyundai 

Heavy Industries Co., Ltd. 

v. 

Southern Lift Trucks, LLC

Appeal from Washington Circuit Court

(CV-22-900029)

COOK, Justice.

These consolidated appeals arise out of a commercial dispute 

between Southern Lift Trucks, LLC ("Southern"), and Hyundai 

Construction Equipment Americas, Inc. ("Hyundai Construction") -- an 

alleged subsidiary of Hyundai Heavy Industries Co., Ltd. ("Hyundai 

Heavy Industries").1 Southern is a heavy-equipment dealer for Hyundai

Construction. Southern filed suit against Hyundai Construction and 

Hyundai Heavy Industries (collectively referred to as "Hyundai") 

asserting various claims, including claims under the Alabama Heavy 

Equipment Dealer Act ("the AHEDA"), § 8-21B-1 et seq., Ala. Code 1975.

1Although Hyundai Heavy Industries is alleged to be a parent of 

Hyundai Construction, it was not a signatory to the dealer agreements 

at issue in these appeals. 
SC-2022-0675 and SC-2022-0676

3

Southern also sought a preliminary injunction to prevent Hyundai (1) 

from unlawfully terminating one of the dealer agreements at issue in 

these appeals and (2) from unlawfully adding a second dealer in the 

territory that was covered under another dealer agreement at issue. In 

response, Hyundai moved to compel arbitration. The Washington Circuit 

Court granted Southern's request for a preliminary injunction and 

denied Hyundai's motion to compel arbitration. 

In appeal no. SC-2022-0675, Hyundai appeals the trial court's order

granting Southern's request for a preliminary injunction. For the reasons 

provided herein, we affirm in part and reverse in part the trial court's 

order and remand the cause for the trial court to enter an order consistent 

with this opinion. 

In appeal no. SC-2022-0676, Hyundai appeals the trial court's order

denying its motion to compel arbitration. For the reasons provided 

herein, we affirm in part and reverse in part the trial court's order and 

remand the cause for the trial court to enter an order consistent with this 

opinion. 

Facts and Procedural History

Southern is a heavy-equipment dealer based in Mobile. In 2019, it 
SC-2022-0675 and SC-2022-0676

4

entered into a dealer agreement with Hyundai Construction to serve as 

a dealer of lift trucks manufactured by Hyundai Construction ("the 

forklift agreement"). A year later, in 2020, it entered into a second dealer 

agreement to serve as a dealer of construction equipment manufactured 

by Hyundai Construction ("the construction-equipment agreement"). 

Among other things, the forklift agreement covered the sales, 

service, and distribution of forklifts and other "lift trucks." The 

construction-equipment agreement covered the sales, service, and rental 

of the provision of parts for, and warranties regarding earth-moving 

equipment used in the construction industry, such as excavators, wheel 

loaders, rollers, and breakers. 

The territories covered by the dealer agreements overlapped, but 

were not identical. Specifically, the territory covered under the forklift 

agreement included Washington, Clarke, Choctaw, Sumter, Marengo, 

Wilcox, Baldwin, Conecuh, Escambia, Mobile, and Monroe Counties in 

Alabama, as well as certain counties in Mississippi and Florida. The 

territory covered under the construction-equipment agreement included

only Washington, Choctaw, Clarke, Baldwin, Conecuh, Escambia, 

Mobile, and Monroe Counties in Alabama. 
SC-2022-0675 and SC-2022-0676

5

When the parties entered into the dealer agreements, Southern was 

the only dealer of lift trucks and construction equipment for Hyundai 

Construction within those territories. However, neither agreement was 

exclusive by its terms. 

According to Southern, since entering into the dealer agreements, 

it has incurred significant expenditures building its business location, 

acquiring inventory and hiring and training full-time sales and mechanic 

staff to promote, sell, and service Hyundai Construction's products in the 

territories covered by the agreements. Southern provided evidence 

indicating that it employed 6 salespeople (including 1 customer-service 

specialist) -- having an average of 35 years' experience -- to handle 

Hyundai Construction's products. In addition, Southern provided 

evidence indicating that it maintained, on a full-time basis, 

approximately 3 road and shop technicians, each with 10-20 years'

experience, who have been "Hyundai Factory Trained" to service 

Hyundai Construction's product.

In both dealer agreements, Southern agreed to arbitrate any and 

all disputes that it had with Hyundai Construction. For example, in the 

forklift agreement, the parties agreed to the following:
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6

"In order to effectively resolve disputes between the 

parties efficiently and at the least cost and inconvenience, the 

parties agree to resolve their disputes pursuant to the terms 

set forth in this Section 25. All disputes between the parties 

relating to or arising out of this Agreement or the making, 

performance or breach thereof, or the subject matter hereof, 

shall be resolved by arbitration in the following manner: 

"(a) The arbitration shall be conducted in 

accordance with the American Arbitration 

Association arbitration rules as in force on the 

date this agreement is executed. The parties 

hereby submit to the exclusive personal 

jurisdiction of such arbitrators for all matters 

unless such matters are required by law to be 

submitted to a court or other venue; provided that 

either party may apply to any court of competent 

jurisdiction to seek an order compelling 

arbitration or a declaratory judgment with respect 

to the enforceability of any provision of this 

Agreement. 

"(b) The arbitration tribunal shall be formed 

of three arbitrators. The arbitrators shall be 

persons who are familiar with the commercial and 

manufacturing practices of heavy construction 

equipment business. In the event of incapacity, 

death or resignation of an arbitrator during the 

course of the arbitration proceedings, a substitute 

arbitrator shall be appointed or chosen pursuant 

to procedures set forth above.

"(c) The arbitration shall take place in 

Gwinnett County, Georgia or at such other 

location as the parties may agree and shall be 

conducted in the English language.
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7

"(d) The arbitration award shall be final, 

binding on the parties, not subject to any appeal 

and shall deal with question of cost of arbitration 

and all matters related thereto.

"(e) Judgment upon the award rendered may 

be entered by any court having jurisdiction, or 

application may be made to such court for a 

judicial recognition of the award or any order of 

enforcement thereof." 

(Emphasis added.) Likewise, the construction-equipment agreement 

contained a virtually identical arbitration provision. 

Immediately after Southern entered into the constructionequipment agreement in 2020, Southern sold four pieces of construction 

equipment. However, Southern made no sales of construction equipment 

in 2021 or in 2022. 

According to Southern, in August of 2021, Hyundai began efforts to 

"oust Southern as a dealer," including by threatening to reduce 

Southern's line of credit unless it agreed to stock a large inventory of 

equipment that it was not contractually required to stock. Southern 

claims that this was part of a plan to "create an environment in which it 

would not be feasible for Southern to continue as a Hyundai dealer so 

Hyundai could 'push out' Southern and install other dealers." Southern's 

brief at 11. However, Hyundai explained that its offer was intended as 
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8

an effort to help rectify Southern's lack of construction-equipment sales 

and noted that, despite factory supply shortages and supply-chain delays, 

its other construction-equipment dealers across the country were 

recording record sales and profits. In the end, Southern did not agree 

with Hyundai's demands.

On March 2, 2022, Hyundai Construction notified Southern of its 

intent to terminate the construction-equipment agreement. Hyundai 

Construction's correspondence to Southern informed Southern that it 

had a cure period of 90 days from the date of the notice and that, if it did 

not make corrective efforts during that cure period, the constructionequipment agreement would officially terminate on June 30, 2022 -- or 

120 days from the date of its March 2, 2022, notice. 

Southern responded to the termination notice on March 5, 2022,

requesting information regarding Hyundai Construction's inventory of 

construction equipment and sales of construction equipment in 

Southern's territory before the construction-equipment agreement was 

entered into. 

In response to Southern's request, on March 8, 2022, Hyundai 

Construction informed Southern that it was being terminated as a dealer 
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9

because Southern had failed to adequately stock construction equipment 

and had failed to take advantage of opportunities to place stock orders to 

build an inventory. Southern disputes both of these justifications and 

points to documents and testimony of Hyundai witnesses that cast doubt 

on these proffered reasons. 

That same day, Hyundai Construction granted a portion of 

Southern's territory under the construction-equipment agreement to

another dealer located in southern Alabama -- Taylor Machine Works, 

Inc., d/b/a Taylor Construction Equipment ("Taylor"). A few weeks later,

Hyundai Construction issued a press release stating that its construction 

equipment was now being offered by Taylor through new "Hyundaiauthorized" locations in Southern's territory. Hyundai Construction then 

listed Taylor as a dealer in that territory on its Web site. Likewise, 

Taylor issued an advertisement announcing that it was proud to be a 

dealer of construction equipment manufactured by Hyundai 

Construction.

Hyundai Construction's actions, however, were not limited solely to 

its construction equipment. On April 11, 2022, Hyundai Construction 

sent a correspondence to Southern notifying Southern that it intended to 
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10

assign an additional dealer -- Thompson Tractor Company ("Thompson") 

-- to serve as a lift-truck dealer in the Alabama territory covered by

Southern under the forklift agreement. Hyundai Construction's 

correspondence also advised Southern that it intended for this 

arrangement to take effect after 60 days had passed and that it intended 

for the new dealer and Southern to work together as Hyundai 

Construction dealers. 

Specifically, Hyundai Construction's correspondence stated: 

"1. The cause of overlay of the territory is warranted due to 

market conditions including anticipated future changes with 

the competition. 

"2. The past, present and anticipated retail sales and service 

business transacted by Thompson that would improve 

Hyundai Construction's market position within the assigned 

territory. 

"3. Overall market coverage with head-count to improve the 

level of support of current and future customers."

Hyundai Construction informed Southern that it intended to add 

Thompson as another lift-truck dealer in Southern's territory because of 

an expected upcoming market opportunity. According to Hyundai 

Construction, effective July 1, 2022, one of its major competitors, 

Mitsubishi Logisnext Americas, canceled its relationship with Thompson 
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11

and replaced Thompson with another heavy-equipment dealer. As a 

result, Hyundai Construction believed that all of Thompson's customers 

would be looking for a new lift-truck dealer and that this served as a good 

reason to add Thompson to the territory. 

Hyundai Construction framed the addition of this new dealer as 

beneficial for Southern because, it explained, Southern would receive the 

benefit of Thompson's infrastructure and servicing capabilities while 

being able to continue to purchase and sell lift trucks manufactured by 

Hyundai Construction. Not surprisingly, Southern did not see it the same 

way.

It is undisputed that Southern's lift-truck sales, unlike its 

construction-equipment sales, had been thriving during the previous two 

years. Southern had often met or exceeded its sales goals, and, in the first 

quarter of 2022 alone, its sales were 240% of its sales goals. 

Nevertheless, Hyundai Construction alleged that Southern was not 

fulfilling its duties as a lift-truck dealer because Southern did not have 

the infrastructure to service the equipment sold. In support of its 

contention, Hyundai Construction noted that Southern had failed to meet 

its goals for parts sales and that none of its employees had ever been fully 
SC-2022-0675 and SC-2022-0676

12

certified to service Hyundai Construction equipment. Hyundai 

Construction also noted that Southern had only a single service facility 

and that it was not sufficient in size. Southern vigorously disputed those 

assertions. 

It is undisputed that the AHEDA requires 60 days' notice before the 

overlay of an additional dealer can occur and that Hyundai

Construction's notice that Thompson would be added as a dealer stated 

that it would be effective as of June 13, 2022, i.e., after 60 days had 

passed. However, shortly after receiving the notice regarding the 

addition of Thompson, Southern became aware that some of its customers 

had already been contacted and provided quotes and/or had been 

informed that Thompson was the new lift-truck dealer for Hyundai 

Construction in Southern's territory. 

As a result, on May 26, 2022, Southern filed suit against both 

Hyundai Construction and Hyundai Heavy Industries, alleging claims 

under multiple provisions of the AHEDA, breach of contract, multiple 

tort claims, and a claim of conspiracy. Southern also moved to 

preliminarily enjoin Hyundai from (1) terminating either of the dealer 

agreements with Southern and (2) permitting other dealers to market or 
SC-2022-0675 and SC-2022-0676

13

sell construction equipment or lift trucks in Southern's territories under 

those agreements. Finally, Southern sought a judgment declaring that

"all provisions of the Dealer Agreements that are inconsistent 

with the AHEDA are unenforceable, null and void pursuant 

to Ala. Code § 8-21B-9; all provisions of the Dealer 

Agreements that are not 'reasonable' as defined by the 

AHEDA are unenforceable, null and void pursuant to Ala. 

Code § 8-21B-10; Hyundai violated the provisions of § 8-21B8(c) and, by extension, the Dealer Agreements, by entering 

into a duplicative dealer agreement with Taylor for the same 

Equipment Territory serviced by [Southern] without 

providing [Southern] written notice at least 60-days prior 

thereto; Hyundai violated the provisions of § 8-21B-8(c) and, 

by extension, the Dealer Agreements, by deciding to enter into 

agreements with Thompson and Taylor within [Southern's] 

Territories without a reasonable basis; Hyundai violated the 

provisions of § 8-21B-8(b) and, by extension, the Dealer 

Agreements, because its actions with respect to [Southern] 

were arbitrary, in bad faith, or unconscionable; Hyundai 

unlawfully terminated or cancelled the Equipment Dealer 

Agreements without good cause in violation of § 8-21B-4; and 

Hyundai violated the provisions of § 8-21B-8(e) and, by 

extension, the Dealer Agreements, by discriminating between 

dealers with regards to price, programs, or terms of sale."

The trial court entered a temporary restraining order ("TRO") that 

same day, granting Southern's request for injunctive relief. Hyundai then 

moved to dissolve the TRO, moved to dismiss the action or, in the 

alternative, to change venue, and moved to compel arbitration. 

Following a hearing, on June 10, 2022, the trial court granted 

Southern's motion for a preliminary injunction, enjoining Hyundai from 
SC-2022-0675 and SC-2022-0676

14

(1) terminating the dealer agreements with Southern; (2) "entering into 

agreements or otherwise permitting other dealers to sell Hyundai 

Construction's Construction Equipment or Forklift Equipment" in 

Southern's territories; and (3) "advertising or marketing (via website or 

otherwise) that other dealers are authorized to sell" the equipment at 

issue in Southern's territories. Hyundai appeals that decision in appeal

no. SC-2022-0675. See Rule 4(a)(1)(B), Ala. R. App. P.

On June 16, 2022, the trial court denied Hyundai's motion to compel 

arbitration. Hyundai appeals that decision in appeal no. SC-2022-0676. 

See Rule 4(d), Ala. R. App. P.

Standard of Review

First, "[w]hen this Court reviews the grant or denial of a 

preliminary injunction, '"[w]e review the ... [c]ourt's legal rulings de novo

and its ultimate decision to issue the preliminary injunction for [an 

excess] of discretion." '" Monte Sano Rsch. Corp. v. Kratos Def. & Sec. 

Sols., Inc., 99 So. 3d 855, 861-62 (Ala. 2012) (quoting Holiday Isle, LLC 

v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008), quoting in turn Gonzales v. 

O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 

(2006)). When the trial court, without a jury, receives ore tenus evidence, 
SC-2022-0675 and SC-2022-0676

15

it "'determines the weight and credibility of the testimony, and its 

findings are presumed correct and will not be disturbed on appeal unless 

the record reveals the [findings] to be plainly and palpably wrong or 

manifestly unjust.'" Cadle Co. v. Friedman, 631 So. 2d 962, 964 (Ala. 

1994) (quoting Wheeler v. Marvin's, Inc., 593 So. 2d 61, 63 (Ala. 1991)). 

Next, with regard to the denial of a motion to compel arbitration, 

this Court's standard of review is well settled:

"'"'This Court reviews de novo the denial of 

a motion to compel arbitration. Parkway Dodge, 

Inc. v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A 

motion to compel arbitration is analogous to a 

motion for a summary judgment. TranSouth Fin. 

Corp. v. Bell, 739 So. 2d 1110, 1114 (Ala. 1999). 

The party seeking to compel arbitration has the 

burden of proving the existence of a contract 

calling for arbitration and proving that the

c ontract evidences a transaction affecting 

interstate commerce. Id. "[A]fter a motion to 

compel arbitration has been made and supported, 

the burden is on the non-movant to present 

evidence that the supposed arbitration agreement 

is not valid or does not apply to the dispute in 

question." Jim Burke Automotive, Inc. v. Beavers, 

674 So. 2d 1260, 1265 n.1 (Ala. 1995) (opinion on 

application for rehearing).' "'

"Hoover Gen. Contractors-Homewood, Inc. v. Key, 201 So. 3d 

550, 552 (Ala. 2016) (quoting Elizabeth Homes, L.L.C. v. 

Gantt, 882 So. 2d 313, 315 (Ala. 2003), quoting in turn 

Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277, 280 (Ala. 

2000))."
SC-2022-0675 and SC-2022-0676

16

Performance Builders, LLC v. Lopas, 341 So. 3d 1084, 1088-89 (Ala. 

2021).

Discussion

I. Appeal No. SC-2022-0676 -- Motion to Compel Arbitration

Hyundai argues that the parties are bound by valid contracts

calling for arbitration of Southern's claims. It contends, therefore, that it 

has met its burden of demonstrating that arbitration is applicable and 

that Southern has not provided any reason to deny arbitration in this 

case. 

A party seeking to compel arbitration must show the existence of a

contract calling for arbitration and that the contract evidences a 

transaction involving interstate commerce. STV One Nineteen Senior

Living, LLC v. Boyd, 258 So. 3d 322, 324 (Ala. 2018). Specifically, the 

party seeking to compel arbitration "must '"produce some evidence which 

tends to establish its claim" '" for arbitration. Wolff Motor Co. v. White, 

869 So. 2d 1129, 1131 (Ala. 2003) (citations omitted). "'Once the moving 

party meets that initial burden, the party opposing arbitration has the 

burden of presenting evidence tending to show that the arbitration 

agreement is invalid or that it does not apply to the dispute in question.'" 
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17

STV, 258 So. 3d at 324 (quoting Alabama Title Loans, Inc. v. White, 80 

So. 3d 887, 891 (Ala. 2011), citing in turn Bowen v. Security Pest Control, 

Inc., 879 So. 2d 1139, 1141 (Ala. 2003)). 

Hyundai, the party seeking to compel arbitration, met its initial 

burden of proving the existence of two agreements calling for arbitration 

and that the agreements involved interstate commerce. Specifically, it is 

undisputed -- even by Southern -- that the dealer agreements between 

Hyundai Construction and Southern contained nearly identical 

arbitration provisions that expressly stated that the parties agreed to 

arbitrate "[a]ll disputes between the parties relating to or arising out of"

those agreements. (Emphasis added.) It is also undisputed that the 

agreements involved interstate commerce -- i.e., sales, service, and 

distribution of construction equipment and lift trucks in Alabama and in 

other southern states. Accordingly, the burden then shifted to Southern 

to show that the arbitration provisions in the dealer agreements were 

invalid or did not apply to the present dispute. 

Southern argues that the arbitration provisions in the dealer 

agreements contain express "carve-out" exceptions for matters that are 

required by law to be "submitted to a court or other venue" and for certain 
SC-2022-0675 and SC-2022-0676

18

declaratory-judgment actions. It further argues that the arbitration 

provisions in the dealer agreements are not enforceable because Hyundai 

has waived them. Finally, Southern contends that any arbitration 

proceedings in the present case should not include Hyundai Heavy 

Industries because the arbitration provisions, by their very terms, apply 

only to disputes "between the parties" and Hyundai Heavy Industries 

was not a party to the dealer agreements. We will address each argument 

in turn. 

A. Carve-outs

First, Southern argues that the arbitration provisions in the dealer 

agreements are not broad enough to cover this dispute because the 

arbitration provisions contain an "express carve-out." That "express 

carve-out," Southern says, provides an exception to arbitration for 

matters that " 'are required by law to be submitted to a court or other 

venue.' " Southern's brief at 26.

We note, however, that Southern not only has quoted this clause 

out of context, but also has quoted only a part of the sentence containing 

the clause. To begin with, the scope of the arbitration provisions is stated 

much earlier in the arbitration provisions, in clear and unambiguous 
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19

language providing as follows: "All disputes between the parties relating 

to or arising out of this Agreement or the making, performance or breach 

thereof, or the subject matter hereof, shall be resolved by arbitration in 

the following manner ...." (Emphasis added). " 'This Court has held 

[that] where a contract signed by the parties contains a valid arbitration 

clause that refers only to claims "arising out of or relating to" the 

contract, that clause has a broader application than an arbitration clause 

that refers only to claims "arising from" the agreement.' " STV, 258 So. 

3d at 325 (quoting Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.

2d 1, 2-3 (Ala. 1996)) (emphasis omitted). 

In contrast, the carve-out clause quoted by Southern is in subpart 

(a) of each arbitration provision, which follows the paragraph containing

this unambiguous language stating the scope of the arbitration provision. 

Immediately before subpart (a) are these words: "in the following 

manner." In other words, the clause quoted by Southern is in a subpart 

that relates to the "manner" of the arbitration and not the scope of the 

arbitration provision. For instance, subpart (a) includes text about the 

use of the procedural rules of the American Arbitration Association and 

about personal jurisdiction. Likewise, the remaining subparts in that 
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20

portion of each arbitration provision deal with similar "manner" or 

procedural issues -- i.e., the number and qualifications of arbitrators; the 

location of arbitration proceedings and the language to be used; the 

finality of the arbitration award and the apportionment of costs; and the 

judicial-recognition procedure for any arbitration award.

Further, we do not read the language quoted by Southern as an 

"exception" to the mandatory language found in each arbitration 

provision. As noted above, Southern omits key language from the

sentence containing the clause that makes clear that the sentence is 

describing the parties' agreement to submit to the personal jurisdiction 

of the arbitrators -- an issue not in dispute here -- and is, therefore, not 

describing the scope of the arbitration provision. The full text of the 

relevant portion of the sentence containing the clause in each dealer 

agreement is as follows: "The parties hereby submit to the exclusive 

personal jurisdiction of such arbitrators for all matters unless such 

matters are required by law to be submitted to a court or other venue." 

(Emphasis added.) It is simply not possible to read this as an "exception" 

to the mandatory, unambiguous, and broad language regarding the scope 

of the arbitration provision discussed above. When reviewing an 
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21

agreement, we must review the entire agreement and not simply a 

portion of one sentence of a subpart of a paragraph. See, e.g., State v. 

Lorillard Tobacco Co., 1 So. 3d 1, 7 (Ala. 2008) ("In construing an 

arbitration agreement, a court must construe the contract 'as a whole; 

detached words or clauses standing alone are not controlling on the 

question of interpretation, each being viewed in relation to the agreement 

as an entity.' " (citation omitted)).2

Southern also argues that the following clause constitutes a second 

"express carve-out" exception to the arbitration provisions at issue: "The 

parties hereby submit to the exclusive personal jurisdiction of such 

2Even if we were willing to read the clause quoted by Southern as 

creating an exception to arbitration, we would still hold that the dealer 

agreements require arbitration of the parties' dispute. Southern argues 

that the AHEDA mandates that any contract provision that requires a 

dealer to waive its rights to a jury trial is "void and unenforceable," citing

Ex parte Terex USA, LLC, 260 So. 3d 813, 822 (Ala. 2018), which barred 

the application of an outbound-forum-selection clause because of the 

applicability of the AHEDA. Thus, Southern concludes, this dispute is a 

matter "required by law to be submitted to a court." The problem is that 

Southern is claiming that the parties' dispute is required by Alabama law 

to be submitted to a court. This argument ignores long-standing federal

law. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., clearly preempts 

a state law prohibiting arbitration of a particular cause of action. See

Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87 (1996). Such 

federal preemption did not exist in Terex, which dealt with a forumselection clause. Thus, the parties' dispute is not one "required by law to 

be submitted to a court." 
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22

arbitrators for all matters unless such matters are required by law to be 

submitted to a court or other venue; provided that either party may apply 

to any court of competent jurisdiction to seek an order compelling

arbitration or a declaratory judgment with respect to the enforceability

of any provision of this Agreement." (Emphasis added.)

Unlike the language discussed earlier, the emphasized language 

does appear to provide an "express carve-out" exception to the arbitration 

provisions at issue ("provided that either party may ...."). However, as 

Hyundai correctly notes, the scope of that exception is limited because it 

applies only "to a declaratory judgment" concerning the "enforceability of 

any provision of this Agreement." Thus, those portions of Southern's

declaratory-judgment claim relating to the "enforceability of any 

provision" of the dealer agreements are subject to this express carve-out. 

B. Waiver

Next, Southern argues that the arbitration provisions in the dealer 

agreements are not enforceable because, it says, Hyundai has waived 

them. Specifically, Southern argues that Hyundai's motion to dismiss 

merely mentioned arbitration in passing in a single sentence and did not 

make a full-throated argument for arbitration until it filed its motion to 
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23

compel arbitration on the eve of the hearing set for all motions. 

"'A party seeking to prove a waiver of a right to arbitrate carries a 

heavy burden, and the courts will not lightly infer a waiver of the right 

to compel arbitration.'" Conseco Fin. Corp.-Ala. v. Salter, 846 So. 2d 

1077, 1081 (Ala. 2002) (quoting Lee v. YES of Russellville, Inc., 784 So. 

2d 1022, 1028-29 (Ala. 2000)). This Court will find a waiver of the right 

to compel arbitration only when "'"the party seeking arbitration has so 

substantially invoked the litigation process that to compel arbitration 

will substantially prejudice the party opposing it." '" Id. (citations

omitted; emphasis added); see also Crews v. National Boat Owners Ass'n 

Marine Ins. Agency, Inc., 46 So. 3d 933, 941 (Ala. 2010). 

A party's reference to the arbitrability of a plaintiff's claims in 

judicial filings before it has moved the trial court to compel arbitration 

evidences just the opposite of waiver -- that is, it evidences an intent not

to waive its right to arbitration. See ClimaStor IV, L.L.C. v. Marshall 

Constr., L.L.C., 4 So. 3d 452, 457-58 (Ala. 2008); U.S. Pipe & Foundry Co. 

v. Curren, 779 So. 2d 1171 (Ala. 2000) (holding that, by asserting a right 

to arbitration in its answer, the defendant preserved its right, which it 

later sought to enforce by filing a motion to compel arbitration). See also
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24

O'Neal v. Bama Exterminating Co., 147 So. 3d 403 (Ala. 2013) (finding 

no waiver even though defendant waited 16 months after complaint was 

filed to file motion to compel arbitration and had answered and 

participated in discovery and had filed a motion for partial judgment on 

the pleadings); Mutual Assurance, Inc. v. Wilson, 716 So. 2d 1160, 1164 

(Ala. 1998)("'"'Merely answering on the merits, asserting a counterclaim 

(or cross-claim) or participating in discovery, without more, will not 

constitute a waiver.' ... [T]he earliest point at which waiver of the right 

to arbitration may be found is 'when the other party files an answer on 

the merits.'"'") (citations omitted).

This action was commenced on May 26, 2022. Hyundai filed its 

motion to dismiss 6 days later on June 1, 2022, and then filed its motion 

to compel arbitration 5 days after that on June 6, 2022 -- 11 calendar

days after the complaint was filed. Hyundai's motion was filed before any 

hearings of any kind. The facts here do not support a finding of a waiver 

of its arbitration rights by Hyundai. This is especially true when a 

preliminary injunction is being sought, sharply increasing the demands 

on all counsel. Thus, we are unpersuaded by Southern's waiver 

argument. 
SC-2022-0675 and SC-2022-0676

25

C. Hyundai Heavy Industries

Finally, we note that Southern correctly points out that Hyundai 

Heavy Industries is not a signatory to either dealer agreement and, thus,

is not technically a party to either arbitration provision at issue. 

Southern argues that any arbitration proceedings in the present case 

should not include Hyundai Heavy Industries because, it says, the 

arbitration provisions -- by their terms -- apply only to disputes "between 

the parties." Southern's brief at 36-39 (citing Daphne Auto., LLC v. 

Eastern Shore Neurology Clinic, Inc., 245 So. 3d 599, 606 (Ala. 2017), and 

Cook's Pest Control, Inc. v. Boykin, 807 So. 2d 524, 527 (Ala. 2001)). It 

also argues that Hyundai Heavy Industries is actively disputing in the 

trial court whether it is a third-party beneficiary of the dealer 

agreements and therefore cannot claim such status for the purpose of 

arbitration. 

Hyundai Heavy Industries argues, however, that it is Southern that 

is claiming that Hyundai Heavy Industries is a third-party beneficiary of 

the entire dealer agreements and that, as a result, Southern is equitably 

estopped from disputing that the arbitration provisions apply to it in the 

present case. Hyundai Heavy Industries also argues that the claims 
SC-2022-0675 and SC-2022-0676

26

against it are "intertwined" with Southern's claims against Hyundai 

Construction and that Southern has alleged both a conspiracy and an 

agency relationship between both entities. As a result, Hyundai Heavy 

Industries contends that the arbitration provisions apply to it and that 

arbitration must be compelled in this case. 

It is undisputed that Southern asserted in its complaint that the 

allegedly wrongful actions taken by Hyundai Construction "at all 

relevant times ... described herein were taken at the direction of and/or 

for the benefit of [Hyundai Heavy Industries] in an agency capacity." 

(Emphasis added.) Further, Southern specifically alleged in its 

complaint that Hyundai Construction and Hyundai Heavy Industries 

"conspired together via concerted action to achieve an unlawful purpose 

and/or to achieve their purposes by unlawful means, including via direct 

and flagrant violations of the AHEDA, as set forth more fully herein." 

Southern also alleged in its complaint that Hyundai Heavy Industries 

was the parent company of Hyundai Construction.3 

3Southern also argues to this Court that the preliminary injunction 

should apply to Hyundai Heavy Industries based on these very 

allegations and argues that an injunction would be "meaningless" if it did 

not apply to Hyundai Heavy Industries. Southern's brief at 43.
SC-2022-0675 and SC-2022-0676

27

In Assurant, Inc. v. Mitchell, 26 So. 3d 1171 (Ala. 2009), the 

plaintiff sued an insurer and its parent company asserting breach-ofcontract, bad-faith, and other tort claims. The trial court denied the 

motion of the parent company to compel arbitration. In that case, the 

arbitration agreement contained language indicating that it applied only 

to disputes "between" the contracting parties. It stated that arbitration 

applied to disputes "between YOU and US," with "US" being the insurer.

Id. at 1172. Nevertheless, this Court reversed the trial court's order 

denying the parent company's motion to compel arbitration and ordered 

arbitration because the plaintiff had "alleged an agency or alter ego 

relationship" by alleging that the parent company was acting "by and 

through" the insurer to commit the alleged wrongs. Id. at 1175. This 

Court cited a number of cases in support of its holding. See Jim Walter 

Homes, Inc. v. Spraggins, 853 So. 2d 913, 919-20 (Ala. 2002) (recognizing 

that a nonsignatory parent company was entitled to invoke right to 

arbitration); Ex parte Gray, 686 So. 2d 250 (Ala. 1996) (recognizing that 

a nonsignatory "agent" was allowed to invoke right to arbitration); 

Stevens v. Phillips 852 So. 2d 123, 131 (Ala. 2002) (recognizing that an 

agent "stands in the shoes" of her principal). See also McDougle v. 
SC-2022-0675 and SC-2022-0676

28

Silvernell, 738 So. 2d 806, 809 (Ala. 1999) (recognizing that a closing 

attorney, as agent of title insurer, had standing to enforce an arbitration 

provision even though the attorney was not a party to the agreement

containing arbitration provision). 

The same is true here. Southern has expressly alleged an "agency 

capacity" between Hyundai Construction and Hyundai Heavy Industries 

and has specifically alleged that the parent -- Hyundai Heavy Industries 

-- was acting by and through the subsidiary -- Hyundai Construction. In 

fact, there are no allegations that any actions taken in this case were 

taken by Hyundai Heavy Industries alone. Instead, the actions taken 

were alleged to have been taken by Hyundai Construction as the agent 

and co-conspirator of Hyundai Heavy Industries. Under these 

circumstances, we are unpersuaded by Southern's argument and hold 

that any arbitration proceedings held in this dispute must include both 

Hyundai Construction and Hyundai Heavy Industries.

D. Summary

"'In interpreting an arbitration provision, "any doubts concerning 

the scope of arbitrable issues should be resolved in favor of arbitration, 

whether the problem at hand is the construction of the contract language 
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29

itself or an allegation of waiver, delay, or a like defense to arbitrability." '" 

STV, 258 So. 3d at 325 (citations omitted; emphasis altered). "'"Thus, a 

motion to compel arbitration should not be denied unless it may be said 

with positive assurance that the arbitration clause is not susceptible of 

an interpretation that covers the asserted dispute." '" Id. (citations 

omitted; emphasis altered). Based on the foregoing, we conclude that 

Southern met its burden by demonstrating that the arbitration 

provisions do not apply only to portions of its declaratory-judgment claim. 

However, it failed to meet its burden to demonstrate that the arbitration 

provisions do not apply to its other claims. For these reasons, we affirm 

the trial court's order denying Hyundai's motion to compel arbitration as 

to any portions of Southern's declaratory-judgment claim relating to the 

"enforceability of any provision" of the dealer agreements, but we reverse 

the trial court's order denying Hyundai's motion as to all of Southern's 

other claims.

II. Appeal No. SC-2022-0675 -- The Preliminary Injunction

Next, Hyundai contends that the trial court erred in issuing a 

preliminary injunction. Specifically, Hyundai argues that the trial court 

was without jurisdiction to issue the preliminary injunction in the 
SC-2022-0675 and SC-2022-0676

30

present case and that the evidence presented during the hearing on the 

motion below did not support a finding that Southern was entitled to 

injunctive relief. 

Alabama caselaw provides that a trial court has jurisdiction to 

enter preliminary injunctive relief to maintain the status quo between 

the parties, even when the dispute should be sent to arbitration. See

Spinks v. Automation Pers. Servs., Inc., 49 So. 3d 186, 190 (Ala. 2010) 

("[W]e conclude that the trial court had jurisdiction to issue a preliminary 

injunction to preserve the status quo pending completion of the 

arbitration proceeding." (emphasis added)); and Holiday Isle, 12 So. 3d 

at 1177 (stating that the "trial court had jurisdiction to enter a 

preliminary injunction to order equitable relief to preserve the status 

quo" and reasoning that the American Arbitration Association 

Commercial Rules recognize such an option). A trial court may grant 

such equitable relief "'where an arbitral award could not return the 

parties substantially to the status quo.'" Holiday Isle, 12 So. 3d at 1177

(quoting Drago v. Holiday Isle, L.L.C., 537 F. Supp. 2d 1219, 1222 (S.D. 

Ala. 2007)).

As explained previously, Southern is the dealer for two separate 
SC-2022-0675 and SC-2022-0676

31

lines of equipment and is a party to two separate dealer agreements. We 

must, therefore, analyze each agreement separately.

As to the construction-equipment agreement, the preliminary 

injunction was not necessary "to preserve the status quo." The status quo 

as to the construction equipment was no sales taking place. The 

undisputed facts are that Southern had not sold a single piece of 

construction equipment since 2020. Even if there are any sales in the 

future by the new dealer -- Taylor -- and even if liability is found, 

damages would appear simple to calculate. Likewise, it is difficult to 

understand how there could be irreparable harm given the complete lack 

of sales of construction equipment, and Southern has not provided such 

an explanation in its briefing.4 We, thus, reverse the trial court's order 

insofar as it granted Southern's motion for a preliminary injunction as to 

the construction-equipment agreement.

Whether the trial court erred in granting a preliminary injunction 

as to the forklift agreement is a closer call. First, Southern has provided 

4Although Southern argues that the lack of sales could be attributed 

to failures and problems of Hyundai (for instance, supply-chain issues), 

it remains true that there have not been any such sales for two years. 

That is the status quo. 
SC-2022-0675 and SC-2022-0676

32

evidence of both significant and consistent sales of lift trucks and other

equipment subject to the forklift agreement. It has also provided 

significant evidence indicating that it has invested a great deal in its 

efforts to serve as a dealer of Hyundai Construction's lift-truck 

equipment, including hiring staff dedicated to selling and servicing the

equipment, training such staff, and building a reputation and a client 

base.5 Southern also argues that § 8-21B-13, Ala. Code 1975, a part of the 

AHEDA, specifically provides that any party who has suffered "bodily 

injury, loss of profit, or property damage as a result of a violation of" the

provisions of the AHEDA "may bring a civil action ... to enjoin further 

violations."

Hyundai argues, however, that there would be no irreparable harm, 

noting that money damages would be adequate and that such damages 

can be easily calculated by reviewing historical sales numbers. Hyundai 

5For example, Southern provided evidence indicating that it 

employs 6 salespeople (including 1 customer-service specialist) -- having 

an average of 35 years' experience -- to handle Hyundai Construction's 

products. In addition, Southern provided evidence indicating that it 

maintained, on a full-time basis, approximately 3 road and shop 

technicians, each with 10-20 years' experience, who have been "Hyundai 

Factory Trained" to service Hyundai Construction's products.
SC-2022-0675 and SC-2022-0676

33

further argues the forklift agreement is nonexclusive and that the

"unending" injunction provides Southern with more relief than it is 

entitled to under either the forklift agreement or the AHEDA. It further 

argues that it did not terminate the forklift agreement but merely added 

another dealer in the same territory and that the additional dealer will 

actually benefit Southern.

First, although it is true that the AHEDA provides that it may be 

enforced by injunction, § 8-21B-13 does not dictate the result here 

because it provides for a final injunction, not a preliminary injunction. 

However, we agree that such express statutory provisions bear on 

whether a trial court should enter a preliminary injunction, given that 

the legislature has made an affirmative decision to provide the remedy of 

injunction. For instance, if we reverse the preliminary injunction on this 

record of significant sales and significant investment by Southern in 

people, marketing, training, and relationships, we risk providing a 

hollow victory should Southern ultimately prevail, thereby eviscerating 

the remedy that the legislature has provided. Strong sales numbers are 

the status quo today. Our ruling is confined to this record at this time,

and we emphasize that we do not intend to announce a bright-line rule 
SC-2022-0675 and SC-2022-0676

34

that a preliminary injunction should be granted in all AHEDA cases (or 

in all cases in which the legislature has listed an injunction as a possible 

remedy for a statutory violation). 

Second, Southern has provided evidence of harm to its reputation

and goodwill, as well as evidence of customer attrition, and the trial court 

found that such harm was occurring. In other words, Southern not only 

has provided evidence of potential harm, but has provided actual 

evidence that the status quo was changing. As noted above, shortly after 

the notice regarding the addition of Thompson as a dealer, Southern 

became aware that some of its customers had already been contacted and 

provided quotes and/or had been informed that Thompson was the new 

Hyundai Construction dealer for lift-truck equipment in Southern's 

territory. In other words, the status quo was changing and was changing 

before the expiration of the 60 days' notice period required under the 

AHEDA. 

Third, Southern contends that the preliminary injunction as to the 

forklift agreement is not "indefinite." We agree. As it currently stands, 

the preliminary injunction will last for the duration of the action -- or 

until otherwise dissolved upon a motion from one of the parties. It is not 
SC-2022-0675 and SC-2022-0676

35

unlimited in time. 

Finally, the nonexclusive nature of the forklift agreement does not 

dictate the result here; the AHEDA is part of Alabama law, and, as long 

as it is constitutional, it supersedes applicable provisions of the forklift 

agreement. Ex parte Terex USA, LLC, 260 So. 3d 813, 822 (Ala. 2018). 

It is not our role to question the wisdom of the legislature's choices. 

Ultimately, this is a close call in this case. However, based upon the 

evidence provided in the record and the trial court's findings, we cannot 

say that the trial court exceeded its discretion in enjoining the overlay of 

Thompson as a dealer in Southern's territory under the forklift 

agreement.

Based on the foregoing, we affirm the trial court's order insofar as 

it granted Southern's motion for a preliminary injunction as to the 

forklift agreement. However, we reverse the trial court's order insofar as 

it granted a preliminary injunction related to the constructionequipment agreement. 

Conclusion

In appeal no. SC-2022-0675, we affirm the trial court's order insofar 

as it granted Southern's motion for a preliminary injunction as to the 
SC-2022-0675 and SC-2022-0676

36

forklift agreement. However, we reverse the trial court's order insofar as 

it issued a preliminary injunction related to the construction-equipment 

agreement, and we remand the cause for the trial court to enter an order 

consistent with this opinion.

In case no. SC-2022-0676, we affirm the trial court's order insofar 

as it denied Hyundai's motion to compel arbitration as to any provisions 

of Southern's declaratory-judgment claim relating to the "enforceability 

of any provision" of the dealer agreement. However, we reverse the trial 

court's order insofar as it denied Hyundai's motion to compel arbitration 

as to Southern's other claims, and we remand the cause for the trial court 

to enter an order consistent with this opinion.

 SC-2022-0675 -- AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED.

SC-2022-0676 -- AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED.

Wise, Stewart, and Mitchell, JJ., concur. 

Parker, C.J., concurs in part and dissents in part, with opinion. 

Shaw, Bryan, Sellers, and Mendheim, JJ., concur in the result.
SC-2022-0675 and SC-2022-0676

37

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

In appeal number SC-2022-0676, I concur in affirming the circuit 

court's denial of the motion to compel arbitration filed by Hyundai 

Construction Equipment Americas, Inc., and Hyundai Heavy Industries, 

Co., Ltd. (collectively "Hyundai"), as to portions of the declaratoryjudgment claim asserted against them by Southern Lift Trucks, LLC 

("Southern"). And I concur in reversing the denial of the arbitration 

motion as to Southern's other claims that were not based on the Alabama 

Heavy Equipment Dealer Act ("AHEDA"), § 8-21B-1 et seq., Ala. Code 

1975. But I would affirm that denial as to Southern's other claims that 

were based on AHEDA, because those claims were within the arbitration 

provisions' exception for "matters ... required by law to be submitted to a 

court ...." 

"'Agreements to arbitrate are essentially creatures of contract,' and 

ordinary contract rules govern the interpretation of arbitration 

provisions." Orkin Exterminating Co. v. Larkin, 857 So. 2d 97, 103 (Ala. 

2003) (citation omitted). "When interpreting a contract, a court should 

give the terms of the contract their clear and plain meaning ...." 

Brewbaker Motors, Inc. v. Belser, 776 So. 2d 110, 112 (Ala. 2000). Here, 
SC-2022-0675 and SC-2022-0676

38

the arbitration provisions expressly exempt from arbitration matters 

that are "required by law to be submitted to a court." Section 8-21B-13 of 

AHEDA provides: "Notwithstanding the terms, provisions, or conditions 

of any dealer agreement, any person who suffers bodily injury, loss of 

profit, or property damage as a result of a violation of [AHEDA] may

bring a civil action in a court of competent jurisdiction in this state ...." 

With that language, AHEDA guarantees heavy-equipment dealers "the 

right to bring an action under the AHEDA in this State, and no contrary 

provision in a dealer agreement will foreclose the dealer's right to do so." 

Ex parte Terex USA, LLC, 260 So. 3d 813, 822 (Ala. 2018) (emphasis 

omitted) (dispute regarding in-state versus out-of-state venue). That is, 

AHEDA claims are conditionally "required by law to be submitted to a 

court": If a dealer chooses to bring the action in State court, it must be 

adjudicated there rather than by arbitration. 

Here, Southern exercised its right to bring AHEDA claims in court, 

so those claims were "required by law to be submitted to a court." 

Accordingly, the arbitration provisions' language does not require 

arbitration of Southern's AHEDA claims. 
SC-2022-0675 and SC-2022-0676

39

In appeal number SC-2022-0675, I concur in reversing the 

preliminary injunction prohibiting Hyundai from terminating the 

construction-equipment agreement. Southern has not demonstrated that 

it had no adequate remedy at law via a damages judgment at the end of 

the case. But I would also reverse the preliminary injunction prohibiting 

Hyundai from adding another forklift dealer, because Southern has not 

demonstrated that it satisfied the elements necessary to obtain a 

preliminary injunction. See State ex rel. Marshall v. TY Green's Massage 

Therapy, Inc., 332 So. 3d 413, 427 (Ala. 2021) (Parker, C.J., concurring 

in result) ("To obtain a preliminary injunction, a plaintiff must 

demonstrate that (1) without the injunction, the plaintiff will suffer an 

irreparable injury; (2) the plaintiff has no adequate remedy at law; (3) 

the plaintiff has a reasonable likelihood of success on the merits 

(sometimes stated as a 'reasonable chance'); and (4) the hardship that the 

injunction will impose on the defendant will not unreasonably outweigh 

the benefit to the plaintiff."); Capmark Bank v. RGR, LLC, 81 So. 3d 

1258, 1267 (Ala. 2011) (listing elements).