852 So.2d 730 (2002)

COOK'S PEST CONTROL, INC., et al.
v.
Robert REBAR and Margo Rebar.

1010897.

Supreme Court of Alabama.

December 13, 2002. Rehearing Denied January 13, 2003.

*732 Nicholas B. Roth and Heather L. Necklaus of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellants.

Thomas F. Campbell and Bert J. Miano of Campbell & Baker, L.L.P., Birmingham, for appellees.

STUART, Justice.

Cook's Pest Control, Inc., and three of its officers and/or managers (hereinafter referred to collectively as "Cook's Pest Control") are defendants in an action filed by Robert Rebar and Margo Rebar in the Jefferson Circuit Court. Cook's Pest Control appeals from an order of the Jefferson Circuit Court denying its motion to compel arbitration. We affirm.

Background

On August 28, 2000, Cook's Pest Control and the Rebars entered into a one-year renewable "Termite Control Agreement." Under the agreement, Cook's Pest Control was obligated to continue treating and inspecting the Rebars' home for termites during the term of the agreement, which, with certain limited exceptions, continued so long as the Rebars continued to pay the annual renewal fee. The agreement contained a mandatory, binding arbitration provision.

*733 When the initial term of the agreement was about to expire, Cook's Pest Control notified the Rebars and requested that they renew the agreement for another year by paying the renewal fee. On August 16, 2001, Mrs. Rebar submitted a payment to Cook's Pest Control; with the payment she included an insert entitled "Addendum to Customer Agreement" (hereinafter referred to as "the addendum"). That addendum provided, in part:

"Addendum to Customer Agreement:

"To: Cook's Pest Control, Inc....

"Please read this addendum to your Customer Agreement carefully as it explains changes to some of the terms shown in the Agreement. Keep this document with the original customer Agreement.

"....

"Arbitration.

Cook's [Pest Control] agrees that any prior amendment to the Customer Agreement shall be subject to written consent before arbitration is required. In the event that a dispute arises between Cook's [Pest Control] and Customer, Cook's [Pest Control] agrees to propose arbitration if so desired, estimate the cost thereof, and describe the process (venue, selection of arbitrator, etc.). Notwithstanding prior amendments, nothing herein shall limit Customer's right to seek court enforcement (including injunctive or class relief in appropriate cases) nor shall anything herein abrogate Customer's right to trial by jury. Arbitration shall not be required for any prior or future dealings between Cook's [Pest Control] and Customer.

"Future Amendments.

Cook's [Pest Control] agrees that any future amendments to the Customer Agreement shall be in writing and signed by Customer and [an] authorized representative of Cook's [Pest Control].

"Effective Date.

These changes shall be effective upon negotiation of this payment or the next service provided pursuant to the Customer Agreement, whichever occurs first.

"....

"Acceptance be [sic] Continued Use.

Continued honoring of this account by you acknowledges agreement to these terms. If you do not agree with all of the terms of this contract, as amended, you must immediately notify me of that fact."

The addendum proposed new terms for the agreement and notified Cook's Pest Control that continued service or negotiation of the renewal-payment check by Cook's Pest Control would constitute acceptance of those new terms. After it received the addendum, Cook's Pest Control negotiated the Rebars' check and continued to perform termite inspections and services at the Rebars' home.

On August 30, 2001, the Rebars filed this action against Cook's Pest Control. The Rebars alleged fraud, negligence, breach of contract, breach of warranty, breach of duty, unjust enrichment, breach of the duty to warn, negligent training, supervision and retention of employees, and bad-faith failure to pay and bad-faith failure to investigate a claim.^[1] Those *734 claims were based upon Cook's Pest Control's alleged failure to treat and control a termite infestation in the Rebars' home and to repair the damage to the home caused by the termites.

Cook's Pest Control moved to compel arbitration of the Rebars' claims. In support of its motion, Cook's Pest Control relied upon the arbitration provision contained in the agreement; Cook's Pest Control also submitted the affidavit testimony of the president of the company, who testified regarding the effect of Cook's Pest Control's business on interstate commerce.

The Rebars opposed the motion to compel arbitration, asserting, among other things, that a binding, mandatory arbitration agreement no longer existed.^[2] The Rebars asserted that a binding, mandatory arbitration agreement no longer existed because the agreement between the parties had been modified when it was renewed in August 2001. The Rebars presented to the trial court a copy of the addendum and a copy of the canceled check they had written to Cook's Pest Control in payment of their renewal fee, which Cook's Pest Control had accepted and negotiated. The Rebars also submitted the affidavit of Mrs. Rebar, who testified that after Cook's Pest Control had received the addendum and had negotiated the check for the renewal fee, Cook's Pest Control inspected the Rebars' home.

On December 18, 2001, the trial court denied Cook's Pest Control's motion to compel arbitration. In its order, the trial court stated:

"The Motion to Compel Arbitration, filed by [Cook's Pest Control] on October 10, 2001, came before the Court on December 7, 2001 for hearing and was taken under advisement.

"The Motion is submitted upon the Motion, together with the `Subterranean Termite Control Agreement Sentricon Colony Elimination System' dated 8/28/00, which was in effect for one year. [The Rebars] have filed, on November 14, 2001, Plaintiff's Opposition to Cook's [Pest Control's] Motion to Compel Arbitration with documents attached thereto, which includes Exhibits 1, 2, A, B, C, D, E, and 3.

"The contract that was entered into on August 28, 2000, which is Exhibit B to Plaintiff's Opposition to Cook's [Pest Control's] Motion to Compel Arbitration, was for a period of one year and contained an arbitration clause. Thereafter, the same expired and the [Rebars] paid for a termite bond and at the same time made an addendum to the termite agreement, which is Exhibit C to Plaintiff's Opposition to Cook's [Pest Control's] Motion to Compel Arbitration. In said Exhibit C, under `Arbitration,' the language reads as follows:

"`Cook's [Pest Control] agrees that any prior amendment to the Customer Agreement shall be subject to written consent before arbitration is required. In the event that a dispute arises between Cook's [Pest Control] and Customer, Cook's [Pest Control] agrees to propose arbitration is [sic] so desired, estimate the cost thereof, and describe the process (venue, selection of arbitrator, etc.). Notwithstanding prior amendments, nothing *735 herein shall limit Customer's right to seek court enforcement (including injunctive or class relief in appropriate cases) nor shall anything herein abrogate Customer's right to trial by jury. Arbitration shall not be required for any prior or future dealings between Cook's [Pest Control] and Customer.'

"The defendant Cook's Pest Control, Inc. accepted said premium with said addendum by the plaintiffs. However, at this hearing, Cook's [Pest Control] does not wish to be bound by the provisions of the addendum made by the [Rebars].

"Cook's [Pest Control] could have canceled the termite agreement, but no cancellation was made. The addendum provides in effect that arbitration is not enforceable and is not required unless [the Rebars] agree thereto, and nothing shall limit the right of [the Rebars] to seek court enforcement nor shall anything herein abrogate the [Rebars'] right to trial by jury. (The provision actually reads `customer'; and in this case, [the Rebars] are customers.)

"The agreement having expired, and the defendants Cook's Pest Control, Inc. having accepted the premium, changing the terms of the prior agreement, which had expired, the said defendant Cook's Pest Control, Inc. became bound by the provisions provided in the addendum, which is [the Rebars'] Exhibit C to Plaintiff's Opposition to Cook's [Pest Control's] Motion to Compel Arbitration.

"Therefore, the Motion to Compel Arbitration, filed by the defendants is OVERRULED AND DENIED."

Cook's Pest Control filed a "motion to reconsider"; that motion was denied by operation of law.

Cook's Pest Control appeals, asserting the following arguments:

"I. The trial court erred by incorrectly assuming that Cook's [Pest Control] could have cancelled its ongoing obligations of the termite agreement with [the Rebars] and in interpreting Cook's [Pest Control's] continued inspection and retreatment of the [Rebars'] home as acceptance of the [Rebars] attempted unilateral modification of the contract.

"II. The trial court erred because, as a matter of law, Cook's [Pest Control] is entitled to arbitration.

"A. The trial court erred in failing to recognize that there was no previous agreement between the parties which contemplate[d] future amendments to the contract.

"B. The trial court erred in failing to take into account that an at-will, unilateral business relationship cannot be fundamentally altered by the customer, as the promisor."

Analysis

Cook's Pest Control argues that the trial court incorrectly found that it accepted the terms included in the addendum by continuing to inspect and treat the Rebars' home after it received the addendum and negotiated the Rebars' check for the renewal fee. Cook's Pest Control argues that, under the terms of the agreement, it was already obligated to continue inspecting and treating the Rebars' home. Cook's Pest Control also argues that the addendum was an improper attempt to *736 unilaterally modify an existing contract. We reject those arguments.

First, we reject Cook's Pest Control's argument that the Rebars were attempting unilaterally to modify an existing contract.^[3] We note that the parties' original agreement was due to expire on August 28, 2001; Cook's Pest Control had already sent the Rebars a notice of this expiration and had requested that the Rebars renew the agreement by submitting the annual renewal fee.

Upon receiving notice that the agreement was up for renewal, the Rebars responded to Cook's Pest Control's offer to renew that contract with an offer of their own to renew the contract but on substantially different terms. This response gave rise to a counteroffer or a conditional acceptance by the Rebars:

"If the purported acceptance attempts to restate the terms of the offer, such restatement must be accurate in every material respect. It is not a variation if the offeree merely puts into words that which was already reasonably implied in the terms of the offer. But the very form of words used by the offeror is material if the offeror so intended and so indicated in the offer. An acceptance using a different form makes no contract. A variation in the substance of the offered terms is material, even though the variation is slight...."

"In the process of negotiation concerning a specific subject matter, there may be offers and counter-offers. One party proposes an agreement on stated terms; the other replies proposing an agreement on terms that are different. Such a counter-proposal is not identical with a rejection of the first offer, although it may have a similar legal operation in part. In order to deserve the name `counter-offer,' it must be so expressed as to be legally operative as an offer to the party making the prior proposal. It is not a counter-offer unless it is itself an offer, fully complying with all the requirements that have been previously discussed. This does not mean that all of its terms must be fully expressed in a single communication. Often they can be determined only by reference to many previous communications between the two parties. In this, a counter-offer differs in no respect from original offers. But there is no counter-offer, and no power of acceptance in the other party, unless there is a definite expression of willingness to contract on definitely ascertainable terms.

"If the party who made the prior offer properly expresses assent to the terms of the counter-offer, a contract is thereby made on those terms. The fact that the prior offer became inoperative is now immaterial and the terms of that offer are also immaterial except in so far as they are incorporated by reference in the counter-offer itself. Very frequently, they must be adverted to in order to determine what the counter-offer is. Often, the acceptance of a counter-offer is evidenced by the action of the offeree *737 in proceeding with performance rather than by words.

"... If the original offeror proceeds with performance in consequence of the counter-offer, there can be no successful action for breach of the terms originally proposed.

"The terms `counter-offer' and `conditional acceptance' are really no more than different forms of describing the same thing. They are the same in legal operation. Whether the word `offer' is used or not, a communication that expresses an acceptance of a previous offer on certain conditions or with specified variations empowers the original offeror to consummate the contract by an expression of assent to the new conditions and variations. That is exactly what a counter-offer does. Both alike, called by either name, terminate the power of acceptance of the previous offer."

Joseph M. Perillo, Corbin on Contracts § 3.32 at 478-80; § 3.35 (rev. ed.1993) (footnotes omitted).

In this case, the Rebars did not accept the terms proposed by Cook's Pest Control for renewal of the agreement but instead proposed terms for the renewal of that contract that were materially different from the terms of the agreement. See, e.g., Hall v. Integon Life Ins. Co., 454 So.2d 1338 (Ala.1984) (where a party to whom an offer is made changes the material terms of the offer, the response is deemed a counteroffer); Smith v. Chickamauga Cedar Co., 263 Ala. 245, 82 So.2d 200 (1955) (to be effective, the terms of the acceptance must be identical to the terms of the offer). The Rebars did not accept the arbitration provision proposed by Cook's Pest Control; they countered with an arbitration provision of their own.

In addition, the Rebars specified in the addendum the method by which Cook's Pest Control could signify its acceptance of those different terms. Had Cook's Pest Control wished to reject those terms, it could have refused to renew the agreement and forgone receipt of the Rebars' renewal check.

In response, Cook's Pest Control argues that it was obligated under the terms of the original agreement to continue servicing and treating the Rebars' home and that its continued service and treatment should not be regarded as acceptance of modifications to that agreement proposed by the addendum. We disagree.

Because the Rebars did not unconditionally accept the renewal contract as proposed by Cook's Pest Control but rather countered with terms that differed materially from those proposed by Cook's Pest Control, Cook's Pest Control had three options upon receipt of the addendum: (1) reject the Rebars' counteroffer and treat the agreement as terminated on August 28, 2001; (2) respond to the Rebars' counteroffer with a counteroffer of its own; or (3) accept the Rebars' counteroffer. Cook's Pest Control did not reject the counteroffer and treat the agreement as terminated; nor did it respond with its own counteroffer; rather, it deposited the Rebars' check and continued to inspect and treat the Rebars' home—the exact method specified by the Rebars for acceptance of the proposed modifications to the agreement. Those actions constituted acceptance of the Rebars' counteroffer.

Cook's Pest Control also argues that the addendum had no effect upon the renewal of the agreement because none of the employees in the office where the Rebars' payment was processed had the authority to enter into a contract on behalf of Cook's Pest Control. Thus, Cook's Pest Control argues, a properly authorized agent never assented to the modifications *738 proposed by the Rebars. Again, we disagree.

"It is well settled that whether parties have entered a contract is determined by reference to the reasonable meaning of the parties' external and objective actions." SGB Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So.2d 892, 895 (Ala.1994). See also Deeco, Inc. v. 3-M Co., 435 So.2d 1260, 1262 (Ala.1983) ("The existence vel non of a contract is determined by reference to the reasonable meaning of the parties' external and objective manifestations of mutual assent."). "Conduct of one party to a contract from which the other may reasonably draw an inference of assent to an agreement is effective as acceptance." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So.2d 8, 11 (Ala.1999). It is also well settled that an agent with actual or apparent authority may enter into a contract and bind his or her principal. See Lee v. YES of Russellville, Inc., 784 So.2d 1022 (Ala.2000). "Furthermore, a principal may vest his agent with apparent authority to perform an act by omission as well as commission, and such authority is implied where the principal passively permits the agent to appear to a third party to have the authority to act on his behalf." Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So.2d 859, 861 (Ala.Civ.App.1983).

We note that if Cook's Pest Control wished to limit the authority of its employees to enter into contracts on its behalf, Cook's Pest Control, as the drafter of the original agreement, could have included such limiting language in the agreement. We find nothing in the agreement so limiting the authority of employees of Cook's Pest Control; we find nothing in the agreement requiring that a purported modification to the agreement be directed to any particular office of Cook's Pest Control, and we find nothing in the agreement stating that, to be effective, such a modification must be signed by a corporate officer or by a duly authorized representative of Cook's Pest Control.

Based upon the fact that Cook's Pest Control received the Rebars' proposed modifications to the agreement and that Cook's Pest Control, for some two months thereafter, acted in complete accordance with the Rebars' stated method of accepting those proposed modifications, we conclude that Cook's Pest Control's external and objective actions evidenced assent to the Rebars' proposed modifications.^[4] It was reasonable for the Rebars to rely upon those actions as evidence indicating that Cook's Pest Control accepted their proposed changes to the agreement.

We agree with the trial court's conclusion, i.e., that, after receipt of the Rebars' addendum, Cook's Pest Control's continuing inspection and treatment of the Rebars' home and Cook's Pest Control's negotiation of the Rebars' check constituted acceptance of the terms contained in that addendum. Upon acceptance of those new terms, the binding arbitration provision contained in the agreement was no longer in effect. The parties' agreement regarding arbitration had been amended to state:

"Cook's [Pest Control] agrees that any prior amendment to the Customer Agreement shall be subject to written consent before arbitration is required. In the event that a dispute arises between Cook's [Pest Control] and Customer, Cook's [Pest Control] agrees to propose arbitration if so desired, estimate the cost thereof, and describe the *739 process (venue, selection of arbitrator, etc.). Notwithstanding prior amendments, nothing herein shall limit Customer's right to seek court enforcement (including injunctive or class relief in appropriate cases) nor shall anything herein abrogate Customer's right to trial by jury. Arbitration shall not be required for any prior or future dealings between Cook's [Pest Control] and Customer."

Because the Rebars oppose arbitration of their claims against Cook's Pest Control, the trial court properly denied Cook's Pest Control's motion to compel arbitration. Because of our resolution of this issue, we pretermit any discussion of the other issues raised by Cook's Pest Control on appeal.

AFFIRMED.

MOORE, C.J., and HOUSTON, J., concur.

JOHNSTONE and HARWOOD, JJ., concur specially.

LYONS, J., concurs in the result.^[*]

SEE, BROWN, and WOODALL, JJ., dissent.

JOHNSTONE, Justice (concurring specially).

I concur in the main opinion. I write to discuss further why Cook's Pest Control fails in its argument that its employees who received the Rebars' addendum were without authority to accept it. This argument fails for two reasons.

First, Cook's Pest Control did not present the argument or even introduce the facts to support it until after the motion to compel arbitration had been submitted and decided. Not until Cook's Pest Control moved for reconsideration of the denial of the motion to compel arbitration did Cook's Pest Control submit the affidavit discussing the corporate personnel and procedures for receiving mail or did Cook's Pest Control assert want of authority in those personnel to accept the addendum. As Justice Harwood has correctly observed in his special writing, the trial court was not obligated to consider those tardy submissions. See Ryan's Family Steak Houses, Inc. v. Regelin, 735 So.2d 454, 457 n. 1 (Ala.1999) ("[A] motion to compel arbitration is analogous to a motion for summary judgment. Therefore, the propriety of a ruling on a motion to compel arbitration, like the propriety of a ruling on a summary-judgment motion, must be tested by reviewing the pleadings and evidence the trial court had before it when it ruled") (citations omitted); Ex parte City of Montgomery, 758 So.2d 565, 568 (Ala.1999) ("`In determining whether to grant or deny a motion for summary judgment, "[t]he trial court can consider only that material before it at the time of submission of the motion.... Any material filed after submission of the motion comes too late"'") (quoting Moore v. Glover, 501 So.2d 1187, 1189 (Ala.1986)); White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App. 1995) ("A post-judgment motion may not be used to belatedly submit evidence in opposition to a motion for a summary judgment").

The second reason why this argument by Cook's Pest Control fails is substantive. A corporation is a person. See Art. XII, § 240, Alabama Constitution of 1901 ("All corporations shall have the right to sue, and shall be subject to be sued, in all courts in like cases as natural persons"); *740 § 10-2B-3.02, Ala.Code 1975 ("[E]very corporation ... has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs"); Black's Law Dictionary 1162 (7th ed. 1999) (One definition of "person" is "[a]n entity (such as a corporation) that is recognized by law as having the rights and duties of a human being," and the definition of "artificial person" is "[a]n entity, such as a corporation, created by law and given certain legal rights and duties of a human being"); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) ("It is well established that a corporation is a `person' within the meaning of the Fourteenth Amendment"); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660 (1936) ("[A] corporation is a `person' within the meaning of the equal protection and due process of law clauses"); Southern Ry. v. Greene, 216 U.S. 400, 412, 30 S.Ct. 287, 54 L.Ed. 536 (1910) ("That a corporation is a person, within the meaning of the 14th Amendment, is no longer open to discussion"); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 189, 8 S.Ct. 737, 31 L.Ed. 650 (1888) ("Under the designation of `person' there is no doubt that a private corporation is included"); Ex parte Rice, 259 Ala. 570, 575, 67 So.2d 825, 829 (1953) (" `Person' includes a corporation under the equal protection and due process clause of the Federal Constitution") (citations omitted); Boone v. State, 170 Ala. 57, 62, 54 So. 109, 110 (1911) ("The fourteenth amendment provides that no state shall `deny to any person within its jurisdiction the equal protection of the laws.' That corporations are persons within the meaning of this amendment is no longer open to discussion"); Smith v. Louisville & Nashville R.R., 75 Ala. 449, 451 (1883) ("And Circuit [Judge] Sawyer, in the same case, p. 33, said `In my judgment, the word "person" [in this cause of the 14th amendment] includes a private corporation.' ... This question, however, would seem to be settled by our own State Constitution, article 14, section 12, which ordains that `all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases as natural persons'"). Therefore Cook's Pest Control is a person. The Rebars mailed their addendum to this corporate person at the address this corporate person supplied. The Rebars did not select any individual, or direct or address their addendum to any individual, whose agency may be questioned. Even with the tardy submission and argument by Cook's Pest Control, this case would present no agency issue, and Cook's Pest Control cannot create an agency issue by arguing in effect that the corporate hand which received the addendum is not connected with the corporate brain.

HARWOOD, Justice (concurring specially).

I concur specially with the main opinion. In its motion to compel arbitration, filed on October 10, 2001, Cook's Pest Control sought to compel arbitration arguing that the "Subterranean Termite Control Agreement" contained an "Alternative Dispute Resolution Clause" and that the "[p]laintiff's complaint alleges a cause of action which is an arbitrable dispute under said agreement."

On November 14, 2001, the Rebars filed their motion in opposition to Cook's Pest Control's motion to compel arbitration. In that motion, the Rebars argued, in relevant part:

"There is no binding agreement to arbitrate between the parties because [Ms. Rebar] modified the terms of her contract with [Cook's Pest Control] to exclude the mandatory arbitration provision *741 in August of 2001. [Cook's Pest Control] accepted these new terms by cashing [the Rebars'] check which accompanied the modification and by continuing to perform its contractual obligations after the date of the modification."

The Rebars attached the affidavit of Margo Rebar to their opposition to Cook's Pest Control's motion to compel arbitration. Her affidavit stated, in relevant part:

"In or about, August of 2001, I enclosed an insert along with my payment to Cook's [Pest Control] for provision of termite services, providing new terms for my agreement with Cook's [Pest Control] as well as notice to Cook's [Pest Control] that if it continued to honor my account for termite services,... Cook's [Pest Control] agreed to those new terms. Cook's received my payment, and the enclosed insert, as evidenced by Cook's [Pest Control's] cashing of my check attached as Exhibit D. Additionally, since accepting the above mentioned payment for services, and accompanying new terms of our agreement, Cook's [Pest Control] has continued to perform termite services at my home."

On December 7, 2001, Cook's Pest Control filed a memorandum in support of its motion to compel and argued: 1) that the scope of the arbitration clause encompassed the present dispute between the parties; 2) that the underlying transaction, as well as Cook's Pest Control's business activities, affected interstate commerce; 3) that the Rebars' attempt to modify the original underlying contract was unilateral in nature and, therefore, was not binding; and 4) that the Rebars' fraud-in-the-inducement argument was a matter to be determined by an arbitrator rather than the court. In support of its memorandum, Cook's Pest Control attached the affidavit of Jim Aycock, president of Cook's Pest Control, Inc., purporting to establish that Cook's Pest Control's ongoing business operations affected interstate commerce.

On December 7, 2001, the trial court held a hearing on the motion to compel arbitration; on December 18, 2001, it issued an order denying the motion to compel arbitration. The trial court's order stated, in pertinent part: "The defendant Cook's Pest Control, Inc.[,] accepted said premium with said addendum by the [Rebars]. However, at this hearing, Cook's [Pest Control] does not wish to be bound by the provisions of the addendum made by the [Rebars]." For all that appears in the record, Cook's Pest Control did not assert at the hearing that the agent who received the check from the Rebars did not have the authority to bind the company. Subsequently, on December 18, 2001, the trial court denied the motion to compel arbitration. On January 10, 2002, Cook's Pest Control filed a "motion to reconsider."

In its motion, Cook's Pest Control, for the first time, made the following argument:

"Cook's [Pest Control] seeks reconsideration because Cook's [Pest Control] has no record of ever receiving the so-called, `addendum'....

"If, as the [Rebars] assert, the addendum was mailed to Cook's [Pest Control] along with their August 16, 2001, quarterly payment, it would have been received by Erin Williams (hereinafter `Williams'), office manager for Cook's [Pest Control's] Birmingham North District Office. See Affidavit of Harold Ray Pinckard, attached hereto as Exhibit `A.' The Birmingham North District Office services approximately 13,000 customers, and approximately $260,000.00 in collections goes through the office each month. Id. As the office manager *742 for Cook's [Pest Control's] Birmingham North District Office, Williams opens 200 to 300 pieces of mail each day and posts each payment which comes through the office. Id. However, Williams has no authority to bind Cook's [Pest Control] or to change the terms of Cook's [Pest Control's] contracts with individual customers. Id. The Defendants should not be bound by the terms of the addendum because Cook's [Pest Control] has no record of ever receiving the [Rebars'] addendum, and the addendum was never received by any Cook's [Pest Control] employee having the authority to bind Cook's [Pest Control] or to alter contracts with Cook's [Pest Control's] customers."

Harold Ray Pinckard, a district manager of Cook's Pest Control, stated in his affidavit, in pertinent part:

"9. All payments received by the Birmingham North District Office are handled by Erin Williams (hereinafter `Williams'), the Office Administrator for the Birmingham North District Office.

"....

"11. Although the majority of payments are mailed by customers directly to the Birmingham North District Office, customers sometimes pay Cook's [Pest Control] technicians directly. These payments would also eventually go through and be posted by Williams.

"....

"13. Williams has no authority to bind Cook's [Pest Control] or to alter Cook's [Pest Control's] contracts with customers.

"14. Cook's [Pest Control] has no record of receiving the addendum purportedly submitted by the [Rebars]."

As we stated in Thrash v. Credit Acceptance Corp., 821 So.2d 968, 972 (Ala.2001):

"`Agency is generally a question of fact to be determined by the trier of fact. See Oliver v. Taylor, 394 So.2d 945 (Ala.1981). When a defendant's liability is to be based on agency, agency may not be presumed; rather, when on a motion for summary judgment a defendant has made a prima facie showing that there was no agency relationship, the party asserting agency has the burden of presenting substantial evidence of the alleged agency. Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala. 1988); Wood v. Shell Oil Co., 495 So.2d 1034 (Ala.1986).'"

The law is well settled that a motion to compel arbitration is analogous to a motion for a summary judgment. See Lewis v. Conseco Fin. Corp., 848 So.2d 920 (Ala. 2002); Mostella v. N & N Motors, 840 So.2d 877 (Ala.2002); Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220 (Ala.2002); Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002).

Thus, Cook's Pest Control had the burden to make a prima facie showing that there was no agency relationship between it and Williams. However, as previously mentioned, Cook's Pest Control did not attempt to make such a showing until the defendants filed their postjudgment motion. "`[A] trial court has the discretion to consider a new legal argument in a post judgment motion, but is not required to do so. We will reverse only if the trial court abuses that discretion.'" Blackmon v. King Metals Co., 553 So.2d 105, 106 (Ala.1989)(quoting Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369-70 (Ala.1988)). Because Cook's Pest Control offered no explanation or justification as to why it failed to raise the issue earlier in the proceedings, I am unable to conclude that the trial court abused its discretion by refusing to consider the new legal argument and the supporting evidence presented *743 to it by Cook's Pest Control's postjudgment motion.

SEE, Justice (dissenting).

I respectfully dissent.

Margo Rebar and Robert Rebar assert that along with their regular quarterly payment for termite protection, they sent Cook's Pest Control, Inc., a proposed "addendum" to their termite-control contract and that Cook's Pest Control accepted this addendum when it deposited the Rebars' check and continued to provide termite control service for the Rebars' home. I do not believe the Rebars have shown that Cook's Pest Control accepted the Rebars' proposed modification to the contract.

In 1987, while what was later to become the Rebars' house was under construction, Cook's Pest Control pretreated the house for termites and issued a termite bond on the property. After 1987, Cook's Pest Control continued to perform annual inspections of the house and to provide necessary treatments and re-treatments under the terms of the original termite bond. On April 12, 2000, coincident with the Rebars' purchase of the house, Cook's Pest Control provided the Rebars with a "Wood Infestation Inspection Report" certifying that there was evidence indicating that the house once had had a termite infestation, but that it was at that time free from any termite infestation.

Also in April 2000, the Rebars and Cook's Pest Control executed a termite control service contract entitled the "Subterranean Termite Control Agreement Liquid Barrier Treatment." Later, on August 28, 2000, Margo Rebar and Cook's Pest Control executed a termite contract entitled the "Subterranean Termite Control Agreement Sentricon Colony Elimination System." Both times, a Cook's Pest Control representative met with the Rebars at their home, presented the Rebars a complete contract, and both parties— Cook's Pest Control and the Rebars— signed the completed contract.

The terms of the second termite-control contract, the Sentricon agreement, were virtually identical to the terms of the earlier liquid-barrier agreement. A handwritten notation on the Sentricon. agreement indicated that it "converted" the liquid barrier agreement. On the Sentricon agreement, Margo Rebar initialed a provision entitled "Retreatment Guarantee"; that provision stipulated: "This Guarantee provides for the retreatment of the structure but does not provide for the repair of damage[ ] caused by wood destroying organisms." The Sentricon agreement also stated that, "[a]s an inducement to Cook's Pest Control, Inc. to enter into this agreement," the Rebars agreed to an arbitration clause.

On September 27, 2000, the Rebars discovered termites in their house. Upon further inspection in October 2000, the Rebars learned that the termite infestation was extensive and that termites had seriously damaged their house. The Rebars apparently notified Cook's Pest Control of the infestation and the resulting damage shortly after they discovered the termites. It is this termite damage that gave rise nearly a year later, after the Rebars' attempted modification of the contract, to the Rebars' action against Cook's Pest Control. The Rebars assert in their complaint that Cook's Pest Control has refused to pay for repairs to their house and has failed to eradicate termites from the house.

On August 16, 2001, almost a year after the Rebars discovered the termite infestation and damage, they submitted a payment to Cook's Pest Control's Birmingham office; they did not submit a notice of cancellation of the Sentricon agreement to *744 Cook's Pest Control at its Decatur, Alabama, corporate office.^[5] The Rebars assert that they included with their payment an insert they had drafted that, they say, modified the terms of their agreement with Cook's Pest Control by removing the arbitration clause from the Sentricon agreement.^[6] The Rebars attached to their motion in opposition to arbitration a copy of a payment coupon issued by Cook's Pest Control and dated October 31, 2001. The payment coupon indicates that Cook's Pest Control received the Rebars' August payment on August 17, 2001. The Rebars also introduced into evidence a copy of the front of their August check to Cook's Pest Control (a copy of the back of the check is not included in the record); it indicates that on August 21, 2001, the Rebars' bank processed their check to Cook's Pest Control.

Only nine days later, on August 30, 2001, the Rebars sued Cook's Pest Control, alleging fraud, negligence, breach of contract, breach of warranty, negligent misrepresentation, unjust enrichment, failure to warn, and negligent training, supervision and retention of employees.^[7] On that same day, the Rebars also filed interrogatories, a request for production of documents, a request for admissions, and a motion for leave to propound additional interrogatories.

On October 10, 2001, Cook's Pest Control inspected the Rebars' house for termites and provided treatment. Also on October 10, 2001, Cook's Pest Control moved to compel arbitration. The trial *745 court denied Cook's Pest Control's motion, finding that Cook's Pest Control had agreed to the Rebars' modifications to the contract. Cook's Pest Control moved the trial court to reconsider its arbitration order. The motion seeking reconsideration was denied by operation of law.^[8] On January 31, 2002, Cook's Pest Control moved the trial court to stay proceedings pending resolution of its appeal filed in this Court on January 28, 2002.

Cook's Pest Control makes the following argument on appeal:

"Including an insert which fundamentally alters a business relationship with a quarterly renewal payment in the absence of any prior understanding governing any such modifications is not the kind of notice contemplated by the court in SouthTrust [Bank v. Williams, 775 So.2d 184 (Ala.2000)]. The case before this Court is, therefore, clearly distinguishable, and Cook's [Pest Control] cannot be held to be bound by the unilateral, fundamental amendment to their relationship which the [Rebars'] `Addendum' seeks to accomplish."

(Cook's Pest Control's brief, p. 15.)

The Rebars cite no authority that supports their assertion that placing the addendum in an envelope along with a payment provided Cook's Pest Control with notice sufficient to modify the Rebars' termite-control contract with Cook's Pest