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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

In re: Tim Cloud v. Continental Roofing Company, LLC

Supreme Court of Alabama

• Citations: None known
• Docket Number: SC-2025-0613

• Judges: Mendheim, J.

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.6K)

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Combined Opinion

Rel: February 27, 2026

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, 2025-2026

---

SC-2025-0613

---

Ex parte Continental Roofing Company, LLC

PETITION FOR WRIT OF MANDAMUS

(In re: Tim Cloud

v.

Continental Roofing Company, LLC)

(Etowah Circuit Court: CV-25-900162)

MENDHEIM, Justice.
SC-2025-0613

Continental Roofing Company, LLC ("Continental"), petitions this

Court for a writ of mandamus directing the Etowah Circuit Court to

vacate its order denying Continental's motion to dismiss all the claims

asserted against it by Tim Cloud for improper venue and to enter an order

granting its motion to dismiss or, in the alternative, to transfer the case

to the Madison Circuit Court. We deny the petition.

I. Facts

Because Continental's petition seeks review of the circuit court's

order denying its motion to dismiss, the facts before us are those provided

in Cloud's complaint. Cloud alleged:

"1. In and during 2011, [Cloud] engaged [Continental] to
install a GAF slate roof on his home.

"2. In and during 2012, it was determined that the 'GAF
deck armor,' which serves to protect the roof decking, was
moving, unsightly, and exposing the roof decking to moisture.

"3. From December 2012 until November 2023, agents
and employees at Continental and GAF attempted to repair
the roof.

"4. On January 2, 2020, the Workmanship Warranty
Service Agreement with Continental was extended to May 31,
2027.

"5. The GAF deck armor has never been fully repaired,
continues to be unsightly and exposed the roof decking to
moisture.
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"6. The last communication from Continental was
February 20, 2024, and ever since such time Continental has
refused to communicate with [Cloud]."

On April 1, 2025, Cloud commenced the action against Continental.

Cloud's complaint contained two counts. In the first count, Cloud

asserted:

"2. Continental expressly and impliedly warranted that
the roof was of merchantable quality and installed correctly.
Continental warranted that any defects would be remedied in
a timely manner.

"3. [Continental] has breached its warranty as the roof
is defective, not correctly installed, and was not timely
repaired."

For count one, Cloud sought "such sum as shall be determined by the

trier of fact." In count two, Cloud asserted: "2. Continental negligently or

wantonly installed a roof and/or negligently or wantonly repaired, or

failed to repair, the roof." For count two, Cloud sought "compensatory and

punitive damages and costs" "as shall be determined by the trier of fact."

On June 22, 2025, Continental filed a "Motion to Dismiss for

Improper Venue." In that motion, Continental asserted:

"4. The Workmanship Warranty Service Agreement
between [Cloud] and [Continental] referenced in [Cloud's]
Complaint contains a forum-selection clause, which provides
that the courts of Madison County, Alabama have venue over
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any dispute arising out of or relating to that agreement. A
copy in substantially the same form as the referenced
Workmanship Warranty Service Agreement is attached
hereto as Exhibit 'A' "

"5. The Workmanship Warranty Service Agreement
includes an unambiguous forum-selection clause that states
as follows:

" '4.6 GOVERNING LAW. This Agreement
shall be construed and governed by the laws of the
State of Alabama. The venue of any action filed by
any party with respect to this Agreement shall be
enforceable in the state and federal courts
presiding in Madison County, Alabama to the
exclusion of all other courts.' "

(Bold typeface in original.) In its motion to dismiss, Continental argued

that the forum-selection clause contained in the document attached to its

motion should be enforced because the clause's language was unequivocal

and it was not unfair or unreasonable to enforce the clause under the

circumstances. Continental requested that the circuit court enter "an

order enforcing the parties' forum-selection clause and dismissing this

action for improper venue, plus grant further relief as justice so requires."

The document Continental attached to its motion was an entirely

blank two-page form titled "Service Agreement" that contained no dates,

no signatures, no identification of any customer, no term of service, and

no contract number. The document listed as "Basis for Service," among
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other things, "Workmanship Defects," "Storm Damage," and "Material

Defects." As Continental had stated in its motion, the document

contained a section that provided: "The venue of any action filed by any

party with respect to this Agreement shall be enforceable in the state and

federal courts presiding in Madison County, Alabama to the exclusion of

all other courts."

On July 1, 2025, Cloud filed a response to Continental's motion to

dismiss in which he argued:

"Curiously, [Continental] attempts to assert an 'outbound'
forum selection clause in a 'service agreement' without any
indication that such agreement was signed by [Cloud].
[Continental] does not even attempt to claim that the forum
selection provision was part of an oral agreement.
Agreements of the type asserted by [Continental] must be
signed by the party against whom enforcement is sought.
Code of Alabama [§] 7-2-201.[1] For this reason alone, the
motion must be denied."

Cloud further argued that the forum-selection clause contained in the

"Service Agreement" attached to Continental's motion was unreasonable

for various reasons "[a]ssuming arguendo that a signed agreement

existed." Cloud also observed that, in addition to asserting a claim of

1Section 7-2-201, Ala. Code 1975, is Alabama's Statute of Frauds,

which applies to "a contract for the sale of goods for the price of five
hundred dollars ($500) or more ...." § 7-2-201(a).
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breach of contract, he had also asserted claims of negligence and breach

of an implied warranty, while the claimed forum-selection clause "is very

narrow and limited to claims 'with respect to this Agreement.' " Cloud

concluded that the fact that there is "no executed agreement containing

the 'outbound venue' provision and the manifest unfairness of such

provision in this context, were it present, compel this Court to deny

[Continental's] motion."

On the same day, July 1, 2025, Continental submitted a reply to

Cloud's response to its motion. In its reply, Continental sought to blunt

Cloud's argument that Continental had not submitted an executed copy

of the "service agreement" that contained the forum-selection clause upon

which its motion was based:

"3. In reply, [Continental] states that [Cloud] has the
executed service agreement in his sole possession and should
have attached a copy of it to his Complaint for breach of that
agreement. If [Cloud] asserts that no executed agreement
exists, then [Cloud's] Count I for breach of contract/warranty
is due to be dismissed immediately as he has no enforceable
claims against [Continental]."

Continental also attempted to counter Cloud's reasons as to why the

enforcement of the forum-selection clause contained in the "Service

Agreement" would be unreasonable.

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SC-2025-0613

On July 9, 2025, the circuit court entered an order stating that,

after considering the filings from the parties concerning Continental's

motion, the motion was denied.

On July 22, 2025, Continental filed an answer to Cloud's complaint

in which it denied all the material allegations and asserted multiple

affirmative defenses.

On August 21, 2025, Continental filed a petition for a writ of

mandamus to this Court, seeking an order directing the circuit court to

vacate its July 9, 2025, order and to enter an order dismissing all of

Cloud's claims against it on the basis of improper venue or to transfer the

action to the Madison Circuit Court.

II. Standard of Review

" ' "Mandamus is a drastic and extraordinary writ,
to be issued only where 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 Integon
Corp., 672 So. 2d 497, 499 (Ala. 1995).'

"Ex parte CTB, Inc., 782 So. 2d 188, 190 (Ala. 2000). In Ex
parte CTB, this Court established that a petition for a writ of
mandamus is the proper vehicle for obtaining review of an
order denying enforcement of an 'outbound' forum-selection

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SC-2025-0613

clause when it is presented in a motion to dismiss.[2] Indeed,
an attempt to seek enforcement of the outbound forum-
selection clause is properly presented in a motion to dismiss
without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.,
for contractually improper venue. Additionally, we note that
a party may submit evidentiary matters to support a motion
to dismiss that attacks venue. Williams v. Skysite
Communications Corp., 781 So. 2d 241 (Ala. Civ. App. 2000),
quoting Crowe v. City of Athens, 733 So. 2d 447, 449 (Ala. Civ.
App. 1999)."

Ex parte D.M. White Constr. Co., 806 So. 2d 370, 372 (Ala. 2001). " 'In

Alabama, we review the trial court's decision on the enforcement of such

a clause to determine whether the trial court exceeded its discretion in

deciding not to enforce the outbound forum-selection clause. See Ex parte

Procom Servs., 884 So. 2d [827,] 830 [(Ala 2003)].' " Ex parte COWS USA,

LLC, 401 So. 3d 1100, 1105 (Ala. 2024) (quoting F.L. Crane & Sons, Inc.

v. Malouf Constr. Corp., 953 So. 2d 366, 372-73 (Ala. 2006)).

2" 'An "outbound" forum selection clause is one providing for trial

outside of Alabama, while an "inbound" clause provides for trial inside
Alabama.' " Ex parte PT Sols. Holdings, LLC, 225 So. 3d 37, 40 n.2 (Ala.
2016) (quoting Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 348
n.1 (Ala. 1997) (plurality opinion)).

Despite the terminology sometimes used by the parties in their
submissions to the circuit court and to this Court, the provision relied
upon by Continental is an "inbound" forum-selection clause because it
provides for trial inside Alabama. That distinction makes no difference
with respect to whether mandamus relief is available for the denial of a
motion to dismiss based on a forum-selection clause.
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SC-2025-0613

III. Analysis

Continental argues that the circuit court clearly erred in refusing

to grant its motion to dismiss because the language of the forum-selection

clause in the "Service Agreement" is unequivocal in requiring actions to

be filed in Madison County and because Cloud failed to demonstrate that

enforcement of the forum-selection clause would be unreasonable under

the circumstances. In making those arguments, Continental attempts to

rely upon principles that have been reiterated by this Court on multiple

occasions.

" 'It is well established that an
outbound forum-selection clause

" ' " 'will be "upheld unless
the party challenging the
clause clearly establishes
that it would be unfair or
unreasonable under the
circumstances to hold the
parties to their bargain." Ex
parte CTB, Inc., 782 So. 2d
[188,] 190-91 [(Ala. 2000)].
The showing is sufficient
where it is clearly
established " '(1) that
enforcement of the forum
selection clause[] would be
unfair on the basis that the
contract[] [was] affected by
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fraud, undue influence, or
overweening bargaining
power or (2) that
enforcement would be
unreasonable on the basis
that the chosen ... forum
would be seriously
inconvenient for the trial of
the action.' " Id. at 191 ....'

" ' "Ex parte Leasecomm Corp., 886 So.
2d [58,] 62-63 (Ala. 2003). The Court has noted that
'[t]he burden on the challenging party
is difficult to meet.' Ex parte D.M.
White Constr. Co., 806 So. 2d [370,] 372
[(Ala. 2001)]."

" 'Ex parte PT Solutions Holdings, LLC, 225 So. 3d
37, 42 (Ala. 2016).'

"Ex parte International Paper Co., 285 So. 3d 753, 757 (Ala.
2019).

" 'When an agreement includes a clearly
stated forum-selection clause, a party claiming
that [the] clause is unreasonable and therefore
invalid will be required to make a clear showing of
unreasonableness. In determining whether such a
clause is unreasonable, a court should consider
these five factors: (1) Are the parties business
entities or businesspersons? (2) What is the
subject matter of the contract? (3) Does the chosen
forum have any inherent advantages? (4) Should
the parties have been able to understand the

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agreement as it was written? (5) Have
extraordinary facts arisen since the agreement
was entered that would make the chosen forum
seriously inconvenient? We state these items not
as requirements, but merely as factors that,
considered together, should in a particular case
give a clear indication whether the chosen forum
is reasonable.'

"Ex parte Northern Cap. Res. Corp., 751 So. 2d 12, 14 (Ala.
1999)."

Ex parte COWS USA, 401 So. 3d at 1105-06.

However, in relying upon the foregoing legal principles,

Continental skips over the fundamental fact that it has not established

that the parties agreed to be bound by the forum-selection clause upon

which Continental based its motion to dismiss.

We observed in Part II of this opinion that "a party may submit

evidentiary matters to support a motion to dismiss that attacks venue."

Ex parte D.M. White Constr. Co., 806 So. 2d at 372. Presumably, that is

what Continental intended to do by attaching the "Service Agreement" to

its motion to dismiss and by asserting in that motion that the attached

document was "[a] copy in substantially the same form" as "[t]he

Workmanship Warranty Service Agreement between [Cloud] and

[Continental] referenced in [Cloud's] Complaint." " ' " ' "[I]f a plaintiff does
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SC-2025-0613

not incorporate by reference or attach a document to its complaint, but

the document is referred to in the complaint and is central to the

plaintiff's claim, a defendant may submit an indisputably authentic copy

to the court to be considered on a motion to dismiss." ' " ' " Borden v.

Malone, 327 So. 3d 1105, 1111-12 (Ala. 2020) (quoting Bell v. Smith, 281

So. 3d 1247, 1252 (Ala. 2019), quoting in turn Donoghue v. American

Nat'l Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002), quoting in turn Wilson

v. First Union Nat'l Bank of Georgia, 716 So. 2d 722, 726 (Ala. Civ. App.

1998), quoting in turn GFF Corp. v. Associated Wholesale Grocers, Inc.,

130 F.3d 1381, 1384-85 (10th Cir. 1997)) (emphasis added).

In his response to Continental's motion to dismiss, Cloud expressly

disputed that the "Service Agreement" Continental relied upon was

agreed to by the parties, noting that "[Continental] attempts to assert an

'outbound' forum selection clause in a 'service agreement' without any

indication that such agreement was signed by [Cloud]." In his answer to

the mandamus petition, Cloud is even more unequivocal: "Cloud did not

and has not received the form 'Service Agreement' relied upon by

Continental and has not found it among the documents in his possession.

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SC-2025-0613

The blank form document attached to [the motion to dismiss] makes no

reference or connection to Cloud." Cloud's answer, p. 2.

One of Continental's responses to Cloud's denials is that

"[t]he Complaint filed by Cloud in this case includes a breach
of warranty claim that is predicated on the existence of a
Service Agreement between the parties, the same agreement
on which Continental relied in support of its motion to dismiss
or transfer venue. See [Petitioner's] Appendix Attachment 1,
Complaint, [paragraph] 4 ('On January 2, 2020, the
Workmanship Warranty Service Agreement with Continental
was extended to May 31, 2027.').

"5. A breach of express warranty claim presupposes the
existence of a valid and enforceable agreement. A party may
not simultaneously rely on a contract to assert a claim while
repudiating the provision that governs the forum for that
claim. See Macon Cnty. Greyhound Park v. Knowles, 39 So.
3d 100, 111 (Ala. 2009) ('It is elementary that one cannot at
once repudiate and enforce a contract.'); Credit Sales, Inc. v.
Crimm, 815 So. 2d 540, 546 (Ala. 2001) (noting that a party
'cannot pick and choose which contract provisions she wishes
to have benefit her and reject those she does not wish to have
bind her; instead, she must accept or reject the entire
contract.'). Thus, Cloud's contention that there was 'no
meeting of the minds' cannot be reconciled with his own
reliance on the Service Agreement as the basis for his claims."

Continental's reply brief, pp. 5-6.

That argument would follow if Continental had established that the

"Service Agreement" it attached to its motion to dismiss was the same as

the "Workmanship Warranty Service Agreement" Cloud referenced in his

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complaint. But as Cloud observes, the "Service Agreement" Continental

submitted contained no information of any kind identifying it with

Continental's business dealings with Cloud: "There is no verification of

any sort that a form of this type was sent to Cloud. One would believe

that Continental would, at least, have a form setting out the 'Customer,'

'Customer [number],' [and] 'Date of Purchase,' even if Cloud's signature

did not appear on the document." Cloud's answer, pp. 3-4.

Continental attempts to cover this hole in its argument by asserting

in its petition that "[t]he Service Agreement is sent to Continental's

customers in duplicate forms once payment for installation has been

made. Customers are instructed to sign both copies of the agreement and

return one signed copy to Continental for its records. Some customers

follow through with the instructions and some do not."3 Continental's

petition, p. 7. But the foregoing statements are assertions, not evidence.

"[I]t is well settled that statements in a brief are not evidence." Ex parte

Safeway Ins. Co. of Alabama, 947 So. 2d 380, 383 (Ala. 2006). See also Ex

3Continental similarly asserted in its reply to Cloud's response to

the motion to dismiss that "[Cloud] has the executed service agreement
in his sole possession and should have attached a copy of it to his
Complaint for breach of that agreement."
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parte American Res. Ins. Co., 663 So. 2d 932, 936 (Ala. 1995) ("This Court

is bound by the record, and it cannot consider a statement or evidence in

a party's brief that was not before the trial court. ... In considering a

mandamus petition, we must look at only those facts before the trial

court.").

" 'Once the party challenging venue has met the burden of pleading

improper venue, he then has the burden of proving that venue is

improper.' " Ex parte Michelin N. America, Inc., 56 So. 3d 604, 611 (Ala.

2010) (quoting Ex parte Pratt, 815 So. 2d 532, 538 (Ala. 2001)). The

"Service Agreement" Continental attached to its motion to dismiss for

improper venue did not, by itself, establish that the "Workmanship

Warranty Service Agreement" Cloud referenced in his complaint

contained the forum-selection clause upon which Continental relies.

Continental did not submit any affidavits averring that it provided a

filled-out copy of the "Service Agreement" to Cloud or that one of its

employees witnessed Cloud sign a "Service Agreement" that contained

the subject forum-selection clause. Likewise, Continental did not seek

discovery to demand that Cloud produce his copy of the "Workmanship

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SC-2025-0613

Warranty Service Agreement" to see if it contained the subject forum-

selection clause.4

It is certainly true that " ' "[a]ssent [to a contract] must be

manifested by something. Ordinarily, it is manifested by a signature.

[However], [a]ssent may be manifested by ratification." ' " Franklin

Structures, LLC v. Williams, [Ms. SC-2024-0586, Aug. 29, 2025] __ So.

3d _, _ (Ala. 2025) (quoting Ex parte Cain, 838 So. 2d 1020, 1027 (Ala.

2002), quoting in turn Southern Energy Homes, Inc. v. Hennis, 776 So.

2d 105, 108 (Ala. 2000)). Cloud's admitted acceptance of roof-repair work

under the "Workmanship Warranty Service Agreement" would constitute

ratification of the terms of the "Workmanship Warranty Service

Agreement" even if he never signed it. But as we have explained,

Continental presented no evidence to the circuit court that established

that the entirely blank "Service Agreement" it attached to its motion to

dismiss contained the same terms as the "Workmanship Warranty

4Parties are entitled to conduct discovery related to the issue of

venue. See, e.g., Ex parte Michelin N. America, Inc., 56 So. 3d 604, 612
(Ala. 2010) (quoting with approval the observation in 14D Charles Alan
Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction § 3829 (2007), that " '[o]n occasion a party who
has raised a proper objection to venue will make use of discovery before
pressing for a decision on the venue objection' ").
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Service Agreement" and, in particular, that it contained the same forum-

selection clause. Without that link, Continental did not carry its burden

of proving that Etowah County is an improper venue for Cloud's action.

IV. Conclusion

" ' "The burden of proving improper venue is on the party raising the

issue and on review of an order transferring or refusing to transfer, a writ

of mandamus will not be granted unless there is a clear showing of error

on the part of the trial judge." ' " Ex parte Tyson Chicken, Inc., 72 So. 3d

1, 2 (Ala. 2011) (quoting Ex parte Pike Fabrication, Inc., 859 So. 2d 1089,

1091 (Ala. 2002), quoting in turn Ex parte Finance America Corp., 507

So. 2d 458, 460 (Ala. 1987)). Continental did not prove that the sole

proper venue for this suit is Madison County because it failed to present

evidence establishing that Cloud had agreed to be bound by the forum-

selection clause that is contained in the entirely blank "Service

Agreement" that Continental attached to its motion to dismiss.

Consequently, Continental failed to show that the circuit court clearly

erred in denying Continental's motion to dismiss for improper venue.

Therefore, we deny the petition for a writ of mandamus.

PETITION DENIED.

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Stewart, C.J., and Shaw, Wise, Bryan, Sellers, Cook, McCool, and

Parker, JJ., concur.

18