author: PER CURIAM. STUART, Justice

text:
    FAST PHONES, INC. v. CITY OF MONTGOMERY.
    1002017.
    Supreme Court of Alabama.
    May 17, 2002.
    Rehearing Denied Aug. 30, 2002.

      Thomas R. DeBray and Carla Cole Gilmore of Kaufman & Rothfeder, P.C., Montgomery, for appellant.
    Robert Black, Jr., and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for ap-pellee.
   PER CURIAM.

The City of Montgomery (“the City”) assessed Fast Phones, Inc., a license fee in the amount of $12,000, pursuant to City of Montgomery License Ordinance No. 48-91, § 19C-21Í, which authorizes the City to collect a license fee from any “person, firm, or corporation which operates a telephone exchange or exchanges within the City.” Fast Phones paid the license fee under protest and appealed the assessment to the City’s Board of Revenue Appeals (“the Board”). The Board upheld the assessment. Fast Phones appealed to the Montgomery Circuit Court, seeking a de novo review of the Board’s decision. The trial court entered a summary judgment in favor of the City, and Fast Phones appealed. We reverse and render a judgment for Fast Phones.

The issue presented is whether Fast Phones is subject to City of Montgomery License Ordinance No. 48-91, § 19C-2U (“the telephone-exchange ordinance”). Fast Phones asserts that it is merely a reseller of telephone services and that it does not operate a “telephone exchange.” Fast Phones contends that it is not, therefore, properly subject to the telephone-exchange ordinance and does not owe the $12,000 license fee. Alternatively, Fast Phones contends that the telephone-exchange ordinance violates the terms and conditions of the Federal Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (“the FTA”). Because we agree that Fast Phones is not operating a “telephone exchange,” we do not reach its contentions relative to the FTA.

Standard of Review

We review a summary judgment de novo.

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

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

Authorization for the License Fee

Pursuant to the telephone-exchange ordinance, the City imposes a $12,000 license fee on entities that operate a “telephone exchange or exchanges within the City of Montgomery.” The ordinance does not define “telephone exchange.”

The authority for the telephone-exchange ordinance is derived from § 11-51-90, Ala.Code 1975, which provides:

“(a) All municipalities shall have the following powers:
“(1) To license any exhibition, trade, business, vocation, occupation, or profession not prohibited by the Constitution or laws of the state which may be engaged in or carried on in the city or town.
“(2) To fix the amount of licenses....
“(c) The power to license conferred by this division may be used in the exercise of the police power as well as for the purpose of raising revenue, or both.”

Additionally, § 11-51-128, Ala.Code 1975, establishes the maximum amount of license tax a municipality may assess annually upon any entity operating a telephone exchange within that municipality. Under this statute, a municipality with a population the size of the City may assess no more than $12,000 for a telephone-exchange license. Section 11-51-128 does not define “telephone exchange.”

Whether Fast Phones Operates A Telephone Exchange

Fast Phones alleges that it does not operate a “telephone exchange” because, it argues, it merely “resells” telephone services. Fast Phones argues that because it resells telephone services, does not own any telephone lines or equipment, and does not control the “central office” where the telephone services are actually connected and disconnected, it should not be considered an operator of a “telephone exchange” and, thus, it should not be subject to the license fee imposed by the City.

The record reveals that Fast Phones has an agreement with BellSouth Telecommunications, Inc. (“BellSouth”), pursuant to which Fast Phones leases local telephone lines from BellSouth. Fast Phones then sells local telephone service to consumers whose credit history is poor; it sells that service at a price higher than the price BellSouth ordinarily charges its customers. At the time of the hearing on the City’s summary-judgment motion, Fast Phones was leasing approximately 1,000 lines from BellSouth.

BellSouth owns all of the facilities and equipment necessary to provide the local telephone service Fast Phones resells. Fast Phones itself does not own any facilities, transmission equipment, telephone lines, switching equipment, or other engineering equipment. Furthermore, Fast Phones does not perform maintenance work on the telephone lines or the equipment, and it does not provide long-distance telephone service.

According to Fast Phones, it merely takes orders for service from its limited market and then instructs BellSouth to connect or disconnect a particular customer’s telephone service. In other words, Fast Phones purchases services from Bell-South and then offers those services to its own customers at a price it sets. Once a customer contracts with Fast Phones, Fast Phones pays BellSouth an amount to cover the cost of the customer’s first month of telephone service at BellSouth’s rate and to cover any required deposit so that Bell-South will connect telephone services for that customer.

A customer who contracts with Fast Phones does not pay BellSouth directly for telephone services; the customer makes its payments to Fast Phones. In turn, BellSouth bills Fast Phones for all of the telephone services Fast Phones’ customers receive. Fast Phones is responsible for paying BellSouth and for collecting any unpaid amounts from its own customers. If Fast Phones’ customers do not pay their telephone bills, Fast Phones, not Bell-South, loses money. Thus, Fast Phones is not obtaining customers for BellSouth, but is instead recruiting its own high-risk customers for a profit.

Fast Phones’ customers do not contact BellSouth to report telephone problems. Fast Phones maintains a toll-free telephone number its customers can call to report problems with their telephone service. Fast Phones then reports those problems to BellSouth and requests that BellSouth investigate and correct the problems. Thus, Fast Phones’ customers have no direct contact with BellSouth.

In order to conduct its business, Fast Phones is required to obtain a certificate of public convenience and necessity from the Alabama Public Service Commission (“the APSC”). In its application, Fast Phones requested a certificate of public convenience and necessity to provide “resold local exchange service” in the State of Alabama. The APSC issued the certificate to Fast Phones. Thus, Fast Phones and the APSC characterize Fast Phones’ business as the reselling of local telephone-exchange service.

Fast Phones argues that because neither the telephone-exchange ordinance nor § 11-51-128 defines “telephone exchange,” the “Telephone Rules” of the APSC are the most logical authority to consult to determine the meaning of that term. Rule T-2(U), Telephone Rules of the APSC, defines an “exchange” as “[t]he entire telephone plant and facilities used in furnishing local telephone service to customers located in an exchange service area. An exchange may include more than one central office unit.” Rule T-2(I) defines a “central office” as “[a] switching unit, in a telecommunications system which provides service to the general public, having the necessary equipment and operating arrangements for terminating and interconnecting customer lines and trunks or trunks only.” Fast Phones does not operate any switching units and does not have even the first “central office unit,” much less “more than one central office unit.”

The Alabama Court of Civil Appeals has addressed and rejected the exact argument Fast Phones raises in this Court. In Dial Tone, Inc. v. City of Montgomery, in So.2d 592 (Ala.Civ.App.1999), Dial Tone, Inc., also a reseller of local telephone services, challenged the same license fee at issue in this case. Dial Tone argued that because it merely resold telephone service and did not own or operate any equipment that enabled the telephone service to function, it could not be considered to be operating a “telephone exchange.” Thus, Dial Tone argued, it could not be subject to the license fee imposed pursuant to the telephone-exchange ordinance.

The Court of Civil Appeals stated:

“We reject the argument that, to operate a telephone exchange, one must own or handle the equipment that allows a telephone system to function....
“We hold that a service provider such as Dial Tone is the operator of a telephone exchange, because it furnishes the benefits of telephone communication to its customers by ‘directly facilitat[ing] two-way communication between a significant number of unrelated persons or businesses.’ See Alabama State Dep’t of Revenue v. Telamarketing Communications, 514 So.2d 1388, 1390 (Ala.Civ.App.1987) (quoting United States Transmission Systems, Inc. v. Board of Assessment Appeals, 715 P.2d 1249, 1254 (Colo.1986)). In Telamarketing Communications of Montgomery, supra, this court held that companies that resell long-distance telephone services are engaged in the 'telephone business’ for purposes of the telephone gross-receipts license tax of § 40-21-58, Ala.Code 1975....
“Our decision in Telamarketing Communications recognized the business and economic reality that ‘resellers’ of telephone service perform the same functions as the ‘traditional’ telephone companies. Because of that reality, they are subject to many of the same requirements as the traditional companies, among those requirements being the obligation to pay tax and business-license assessments.”

774 So.2d at 594. Being in the “telephone business” and operating a “telephone exchange” are distinctly different. Alabama State Department of Revenue v. Telamarketing Communications of Montgomery, 514 So.2d 1388 (Ala.Civ.App.1987), relied upon by the Court of Civil Appeals in Dial Tone, recognizes “business and economic reality” when it treats resellers of telephone services as engaging in the “telephone business.” Nevertheless, it ignores reality to treat Fast Phones as an operator of a telephone exchange. Fast Phones merely “resells” telephone services. Simply because the APSC authorized Fast Phones to provide “resold local exchange service” does not make Fast Phones a telephone exchange. (Emphasis added.) To accept the concept that a reseller of telephone services is a telephone exchange is an impermissible stretch of logic.

“Telephone exchange” is a term that has been with us since the invention of the telephone. In Davidson v. Alabama Power Co., 203 Ala. 77, 82 So. 91 (1919), an action against Alabama Power Company alleging that a telephone exchange had been destroyed as a result of a power surge through a telephone line, this Court described such an operation:

“[T]he plaintiffs owned a building at Helena, Ala., in which was operated a telephone exchange owned by the plaintiffs, and there was in said building a large number of telephones, office furniture, and fixtures stored, and in connection with said telephone business plaintiffs had in said building a telephone switchboard and all appliances and apparatus necessary to operate the same, together with telephone wires, telephone attachments and equipments, and $86.60 in cash in said building.”

203 Ala. at 77, 82 So. at 91 (quoting the plaintiffs’ complaint). Viewed in the proper historical perspective, Fast Phones’ operation does not remotely resemble the operation of a telephone exchange.

This Court is not at liberty to update the definition of a telephone exchange to embrace resellers of services originating in a telephone exchange under the guise of recognizing “business and economic reality.” Any amendments to the telephone-exchange ordinance should fall exclusively within the province of the City. To hold otherwise would convert a reseller of automobiles purchased from the manufacturer into a manufacturer of automobiles. A newspaper carrier would become a publisher. Every local hotel and motel providing a telephone in a guest’s room and charging a fee per local call and providing an employee to handle any complaints about the telephone service would become a “telephone exchange” subject to the flat $12,000 per year license fee charged by the City. Such activity by a local hotel or motel is indistinguishable from the activity the Court of Civil Appeals erroneously described in Dial Tone as “fumish[ing] the benefits of telephone communication to its customers by ‘directly facilitating] two-way communication between a significant number of unrelated persons or businesses.’ ” 774 So.2d at 594 (quoting Telamarketing Communications, 514 So.2d at 1390, quoting in turn United States Transmission Systems, Inc. v. Board of Assessment Appeals, 715 P.2d 1249, 1254 (Colo. 1986)). We expressly overrule Dial Tone, to the extent it conflicts with our holding in this case.

Conclusion

Whether an ordinance imposing a license fee on Fast Phones can be drafted or framed based on an accurate description of Fast Phones’ business activities is a question not before us. However, on the present record, we conclude that the trial court improperly entered the summary judgment in favor of the City. We therefore reverse that judgment and render a judgment for Fast Phones.

REVERSED AND JUDGMENT RENDERED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur.

HARWOOD, WOODALL, and STUART, JJ., dissent.

STUART, Justice

(dissenting).

Because I would conclude that Fast Phones is subject to Ordinance No. 48-91, I would address the question whether that ordinance violates the Federal Telecommunications Act. I conclude that it does not; therefore, I dissent from the majority opinion.

Is Fast Phones Subject to Montgomery Ordinance No. 18-91 ?

The dispositive issue before this Court is whether Fast Phones operates a “telephone exchange.” If so, Fast Phones is subject to Montgomery Ordinance No. 48-91, which imposes a $12,000 license fee upon every entity operating a telephone exchange within the City. The analysis is complicated by the fact that the authorizing ordinance and the applicable statute do not define “telephone exchange.” However, the Alabama Public Service Commission (“the PSC”), the agency charged with regulating the telecommunications industry in this State, has defined “exchange” as “the entire telephone plant and facilities used in furnishing local telephone service to customers located in an exchange service area. An exchange may include more than one central office unit.” Although I agree that we should defer to the PSC as to the meaning of this term, I am not persuaded that the majority opinion has construed or applied the PSC’s definition properly.

I do not interpret this definition, which merely provides that an exchange “may include more than one central office unit,” to require a “central office unit” in order to constitute an exchange. I interpret the PSC’s definition of an “exchange” simply to refer to all of the facilities of any one entity providing telephone service in a particular exchange area, including as many switching units, if any, as may be included within that particular exchange area. As applied to Fast Phones, this would encompass all of its locations within its Montgomery exchange area.

Relying on historical perspective, the majority opinion apparently interprets an operator of a “telephone exchange” to mean only one thing — a provider of telecommunication services that operates a “telephone switchboard” at which an actual person sits, plugging and unplugging different lines so that two or more people may communicate by telephone. Although this may be the historical meaning associated with a telephone exchange, I doubt any modern-day telecommunication providers operate in such a manner.

However, assuming that the majority is correct and that this Court must interpret the term “telephone exchange” through a historical lens, we must consider the impact of that interpretation. If the majority’s logic is to stand, municipalities within this State may impose licensing fees only upon those telecommunication providers that continue to provide telephone services through an antiquated switchboard system at which an operator sits personally connecting each and every call. I do not believe this Court is constrained to such a historical perspective, and I cannot concur in such a limited definition of “telephone exchange” without a more specific definition from the PSC or the Legislature.

The majority approach also limits the entities to which the license fee may be applied to only those telecommunication providers who own the equipment and the telephone lines. Under such an approach, only one or two telecommunication providers in each municipality — typically Bell-South — will be subject to the license fee, because of the application of the principle known as “economies of scale.” In each municipality, there is generally only one entity that has gone (or should go) to the expense of purchasing and setting up the telephone lines and equipment (“the switchboard”) required to service the market. According to the majority opinion, this entity — and only this entity — is an operator of a “telephone exchange.” In this case, BellSouth, which once had a monopoly in the Montgomery market, has incurred those expenses and, under the majority opinion, operates a telephone exchange in Montgomery.

However, BellSouth, as the former monopolist, was required, pursuant to the Federal Telecommunications Act (“the FTA”) to allow its competitors access to its lines and equipment. If BellSouth is the only telecommunications provider in Montgomery subject to the $12,000 license fee, simply by virtue of its owning the telephone lines and equipment, the newly emerged resellers of BellSouth’s services will have a distinct advantage over the very carrier required by the FTA to accommodate its competition. I do not believe this was the intent of § 11-51-128, Ala. Code 1975, or of the FTA.

Under the scenario before us, Fast Phones is analogous to a retailer of telephone-exchange services in the Montgomery market. Fast Phones has obtained from BellSouth, which serves as a wholesaler, items with which to stock its “shelves.” The simple fact that BellSouth is also a retañer in that same market does not change the fact that Fast Phones is marketing telephone-exchange services. Because both BellSouth and Fast Phones are retahers of telephone-exchange services, they are both subject to the same licensing fee.

Nor does the fact that Fast Phones does not itself own the telephone lines prevent the conclusion that Fast Phones is an operator of a telephone exchange. Fast Phones’ customers are not purchasing services from BellSouth. They are purchasing telephone services directly from Fast Phones, which operates a “local exchange service,” and Fast Phones profits from its sale of that service.

Further, Fast Phones’ argument that it cannot make a suitable profit if it is required to pay the $12,000 licensing fee is not relevant to an analysis of whether Fast Phones operates a telephone exchange. I find nothing in the FTA, the Alabama Code, or the PSC definitions, or in any caselaw, to justify providing resellers of telecommunications services with a guarantee of success or a guarantee of a certain profit margin.

Moreover, I agree with the Court of Civil Appeals’ decision in Dial Tone, Inc. v. City of Montgomery, 774 So.2d 592 (Ala.Civ.App.1999), a case in which this Court denied certiorari review. In Dial Tone, the Court of Civil Appeals stated:

“We reject the argument that, to operate a telephone exchange, one must own or handle the equipment that allows a telephone system to function....
“We hold that a service provider such as Dial Tone is the operator of a telephone exchange, because it furnishes the benefits of telephone communication to its customers by ‘directly facilitating] two-way communication between a significant number of unrelated persons or businesses.’ See Alabama State Dep’t of Revenue v. Telamarketing Communications, 514 So.2d 1388, 1390 (Ala.Civ. App.1987) (quoting United States Transmission Systems, Inc. v. Board of Assessment Appeals, 715 P.2d 1249, 1254 (Colo.1986)). In Telamarketing Communications, supra, this court held that companies that resell long-distance telephone services are engaged in the ‘telephone business’ for purposes of the telephone gross-receipts license tax of § 40-21-58, Ala.Code 1975....
“Our decision in Telamarketing Communications recognized the business and economic reality that ‘resellers’ of telephone service perform the same functions as the ‘traditional’ telephone companies. Because of that reality, they are subject to many of the same requirements as the traditional companies, among those requirements being the obligation to pay tax and business-license assessments.”

Dial Tone, 114, So.2d at 594. Fast Phones furnishes the benefits of telephone communication to its customers by “directly facilitating] two-way communication between a significant number of unrelated persons or businesses.” Dial Tone, 774 So.2d at 594.

Fast Phones argues that Dial Tone was wrongly decided in light of the FTA, which was passed in 1996 and which, Fast Phones alleges, made sweeping changes to the telecommunications industry. As evidence that the Dial Tone decision is wrong, Fast Phones asserts that, in that opinion, the Court of Civil Appeals did not reference or acknowledge the passage or applicability of the FTA.

However, in Dial Tone, the court cited a portion of 47 U.S.C. § 153(r), which defines the term “telephone-exchange service” as follows:

“ ‘[s]ervice within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge.’ ”

774 So.2d at 593. This statute is one of those the FTA was intended to amend. Importantly, the FTA did not modify in any way the definition of “telephone-exchange service” found in 47 U.S.C. § 153(r). Thus, the Dial Tone court did refer to and did acknowledge the statutes to which the FTA is applicable.

For these reasons, I conclude that Fast Phones is operating a “telephone -exchange,” as that term was defined by the Court of Civil Appeals in Dial Tone; I also conclude that Fast Phones fits within the PSC’s definition of an “exchange.” Accordingly, I conclude that Fast Phones is subject to Montgomery Ordinance No. 48-91, which is applicable to each person, firm, or corporation operating a “telephone exchange” within the City.

Does Ordinance No. 18-91 Violate the Federal Telecommunications Act of 1996?

Because I conclude that Fast Phones is subject to Montgomery Ordinance No. 48-91, it is necessary to address Fast Phones’ alternative argument — that, even if Fast Phones is deemed to operate a “telephone exchange,” Ordinance No. 48-91 is invalid or inapplicable as to Fast Phones by virtue of the FTA. The FTA was enacted to foster competition in the local telephone-service market by ending the monopolies held by local telephone-service providers.

Fast Phones argues that the City’s business-license tax is invalid or inapplicable to it under 47 U.S.C. § 253, a portion of the FTA. This statute is entitled “Removal of barriers to entry,” and provides as follows:

“(a) In general
“No state or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
“(b) State regulatory authority
“Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
“(c) State and local government authority
“Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.”

Fast Phones interprets this statute to mean that “§ 253(a) preempts all state and local regulations that ‘prohibit or have the effect of prohibiting’ any company’s ability to provide telecommunications services, unless such regulations fall within either of the safe harbors found in §§ 253(b) or (c).” Fast Phones argues that Ordinance No. 48-91 does not fall under any of these enumerated safe harbors and, thus, that the ordinance violates § 253(a) by creating a barrier to smaller businesses attempting to enter the telecommunications market in Montgomery.

The City of Montgomery responds that under Ala.Code 1975, § 11-51-90, the State has conferred statutory authority upon it to tax entities doing business within the City under the exercise of its police power or to raise revenue or both. Additionally, the City argues that under Ala. Code 1975, § ll-51-128(a)(123), the State has specifically authorized the City to impose the $12,000 license fee upon entities operating a telephone exchange. The City asserts that the fee is competitively neutral because it is applied to each and every entity, in exactly the same manner, that wishes to enter the “telephone-exchange” market. Further, the City asserts that the fee does not impede competition because it is based upon the population of the City of Montgomery, which is the maximum potential market for each and every telecommunications provider licensed under the ordinance, if that provider’s business is successful. For these reasons, the City of Montgomery asserts that 47 U.S.C. § 253(b) provides a safe harbor for Ordinance No. 48-91.

Additionally, the City notes that § 601 of the FTA expressly includes a “[s]tate tax savings provision,” stating:

“[N]othing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede, or authorize the modification, impairment, or supersession of, any State or local law pertaining to taxation, except as provided in sections 622 and 653(a) of the Communications Act of 1934 [sections 542 and 573(c) of this title] and section 602 of this Act [set out as a note under this section].”

See Historical and Statutory Notes to 47 U.S.C. § 152, “Applicability of Consent Decrees and Other Law” (quoting Pub.L. 104-104, Title VI, § 601, Feb. 8, 1996, 110 Stat. 143). The City contends that, under this tax-savings provision, the FTA was never meant to impair a State or municipality’s ability to tax entities such as Fast Phones for the privilege of doing business within its jurisdiction.

I agree with the City that § 253(b) is applicable because the State has authorized municipalities to tax entities doing business within its jurisdiction for the purpose of raising revenue. The State has also specifically authorized municipalities to impose the $12,000 license fee upon telephone-service providers. Because this fee applies in exactly the same manner to any entity wishing to enter the teleeommu-nications-provider market, the fee is competitively neutral. For these reasons, I conclude that § 253(b) provides a safe harbor for Ordinance No. 48-91.

Additionally, I find the language of the tax-savings provision unequivocal and applicable to the issue presented. Based upon this unequivocal language, and the fact that an across-the-board business-license fee is not an improper barrier to competition, I believe the trial court properly granted the City of Montgomery’s summary-judgment motion. Accordingly, I dissent.

HARWOOD and WOODALL, JJ.‘, concur.

      . This Court denied certiorari review in Dial Tone on June 16, 2000.

      . Both Fast Phones and the PSC characterized Fast Phones’ business as a local telephone "exchange service.”

      . The record reflects that Fast Phones actually purchases services from BellSouth and then offers those purchased services to its customers at prices it sets. Once a customer signs up with Fast Phones, Fast Phones pays BellSouth an amount to cover the first month of telephone service for its customer and to cover any required deposit so that BellSouth will connect telephone services for that customer. A customer who signs up with Fast Phones does not pay BellSouth directly for his or her telephone services; that customer pays Fast Phones directly. Fast Phones is responsible for collecting any unpaid amounts from its own customers.
      In turn, Fast Phones receives a bill from BellSouth for all of the telephone services Fast Phones' customers receive, and Fast Phones is liable for paying BellSouth. If Fast Phones’ customers do not pay their telephone bills, Fast Phones, not BellSouth, loses money. Thus, Fast Phones is not signing up customers for BellSouth; Fast Phones is signing up its own customers, with the hope that it will make a profit on these accounts.
      Moreover, Fast Phones maintains a toll-free telephone number so its customers can report problems with their telephone service; Fast Phones then reports the trouble to BellSouth and requests that BellSouth investigate and correct the problem. Fast Phones’ customers do not contact BellSouth directly to report telephone problems. Thus, Fast Phones’ customers have no direct contact with BellSouth.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    CITY OF RUSSELLVILLE ZONING BOARD OF ADJUSTMENT v. Raymond VERNON.
    1010331.
    Supreme Court of Alabama.
    May 24, 2002.
    Rehearing Denied Aug. 16, 2002.
    Eddie Beason, Russellville, for appellant.
    James P. Atkinson, Florence, for appel-lee.
   WOODALL, Justice.

The Zoning Board of Adjustment (“the Board”) of the City of Russellville (“the City”) appeals a judgment granting Raymond Vernon’s request for a variance from zoning restrictions set forth in the City’s zoning ordinance. We reverse and remand.

Raymond Vernon owns property in the City, comprising one city block. In 1997, his daughter purchased a mobile home and installed it on his property to serve as her residence. At that time, his property was subject to the “Zoning Ordinance of Rus-sellville, Alabama” (“the Ordinance”), and was in an area zoned as an “R-3 Residential District.” The Ordinance prohibited, among other things, the use of “mobile homes [and] mobile home parks.” Bois Porter, the City Building Inspector, advised Vernon and his daughter that if they removed the “tongue” and “underpinned” the mobile home, the Board would grant a variance from the prohibited uses. After they made the suggested modifications, the variance was granted.

In March 2000, Vernon purchased a mobile home and moved it onto his property. Intending to lease this home for residential purposes, he removed the tongue and underpinned the unit on the site. However, before utilities were provided to this mobile home, Porter visited the site and told Vernon that he could not proceed with the installation unless he obtained a second variance from the Board.

Vernon appealed to the Board for a variance. When the Board denied Vernon’s second variance request, Vernon appealed to the Franklin Circuit Court. Following a bench trial, the court entered a judgment in favor of Vernon. It found that the Board’s action was “an ‘arbitrary and capricious interference with the basic right’ of [Vernon] to utilize his property in an appropriate manner.” From the denial of its motion to alter, amend, or vacate the judgment, the Board appealed.

This case is controlled by the following well-established principles:

“The board of adjustment derives its power to grant variances from Code 1975, § ll-52-80(d)(3), which vests the Board with the following power:
“ ‘To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.’
“Variances were allowed by the legislature ‘to permit amelioration of the strict letter of the law in individual cases.’ McQuillin, Municipal Corporations § 25.160 (3d ed.1983). However, variances should be sparingly granted, and only under ‘peculiar and exceptional circumstances’ of unnecessary hardship. Priest v. Griffin, 284 Ala. 97, 101, 222 So.2d 353, 357 (1969); Martin v. Board of Adjustment, 464 So.2d 123, 125 (Ala.Civ.App.1985). The pivotal question is whether, due to special conditions, a literal enforcement of a zoning ordinance will result in ‘unnecessary hardship.’ Priest v. Griffin, supra; Alabama Farm Bureau Mutual Cas. Ins. Co. v. Board of Adjustment, 470 So.2d 1234, 1237 (Ala.Civ.App.1985); Pipes v. Adams, 381 So.2d 86, 87 (Ala.Civ.App.1980).
“An ‘unnecessary hardship’ sufficient to support a variance exists where a zoning ordinance, when applied to the property in the setting of its environment, is ‘so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property.’ McQuillin, supra, at § 25.167. This Court has approved the following definition of ‘unnecessary hardship’:
“‘No one factor determines the question of what is practical difficulty or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique in that they cannot be put reasonably to a conforming use because of the limitations imposed upon them by reason of their classification in a specified zone.’
“City of Mobile v. Sorrell, 271 Ala. 468, 471, 124 So.2d 463, 465 (1960), quoting Brackett v. Board of Appeal, 811 Mass. 52, 39 N.E.2d 956 (1942). A mere hardship or inconvenience is not enough to justify a variance. McQuillin, supra, at § 25.168; Martin, 464 So.2d at 125. Moreover, the reasons for granting a variance must be ‘substantial, serious, and compelling.’ McQuillin, supra, at § 25.167.
“Also, a ‘self-inflicted or self-created hardship may not be the basis for a variance or for a claim thereof’ Thompson, Weinman & Co. v. Board of Adjustments, 275 Ala. 278, 281, 154 So.2d 36, 39 (1963); Martin, supra. ‘When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it’ Josephson v. Autrey, 96 So.2d 784, 789 (Fla.1957), cited with approval in Thompson, Weinman & Co., supra.”

Ex parte Chapman, 485 So.2d 1161, 1162-63 (Ala.1986) (emphasis added) (footnote omitted). “Hardship alone is not sufficient. The statute says ‘unnecessary hardship,’ and mere financial loss of a kind which might be common to all of the property owners in a use district is not an ‘unnecessary hardship.’ ” Nelson v. Donaldson, 255 Ala. 76, 84, 50 So.2d 244, 251 (1951) (emphasis added). The proliferation of variances “tend[s] to destroy or greatly impair the whole system of zoning.” Priest v. Griffin, 284 Ala. 97, 102, 222 So.2d 353, 357 (1969).

The trial court made findings of fact based on evidence presented ore ten-us. Nevertheless, we review its judgment de novo, because the dispositive issue is a legal one. The ore tenus presumption of correctness applies to findings of fact, not to conclusions of law. See Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000); Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999); McCluney v. Zap Prof'l Photography, Inc., 663 So.2d 922, 924 (Ala.1995) (“The ore tenus rule applies only to the trial judge’s factual findings on disputed evidence.”). We assume the trial court’s factual findings are correct, but we conclude that it misapplied the well-established legal principles set out above. More specifically, a property owner is not entitled to a variance where the hardship suffered because of the zoning restriction is “self-inflicted or self-created.” It is undisputed that Vernon knew of the zoning restriction against mobile homes before he purchased his mobile home. Nevertheless, he purchased the mobile home without first seeking and securing a variance. Clearly, Vernon’s hardship is self-created.

Vernon, however, cites two cases, which, he argues, recognize an exception to the self-created-hardship rule, namely, Board of Zoning Adjustment of Huntsville v. Mill Bakery & Eatery, Inc., 587 So.2d 390 (Ala.Civ.App.1991); and Board of Zoning Adjustment of Muscle Shoals v. LaGrange Church of the Nazarene, Inc., 507 So.2d 538 (Ala.Civ.App.1987). Those cases, however, are distinguishable.

LaGrange involved the following facts: The LaGrange Church of the Nazarene, Inc. (“the Church”), purchased property in an area not zoned for churches and subsequently obtained a variance to construct a church building on a five-acre tract of that property. LaGrange, 507 So.2d at 539. In an attempt to raise money for the proposed construction, the Church sold two of the five acres. After it sold the property, it was informed that a second variance would be necessary in order to construct the building on the remaining three acres. Id. The second variance, however, was denied. Id.

The Church appealed the denial, and a jury returned a verdict for the Church. The Court of Civil Appeals affirmed the judgment entered on that verdict. It noted that a variance should “not be granted where the property owner merely suffers a financial loss of a kind that is common to all of the property owners of the use district.” 507 So.2d at 539. It concluded, however, that, because the Church had relied on the first variance, it had suffered a unique hardship. Specifically, it explained: “The Church’s unique financial loss was incurred due to its rebanee on the 1979 variance, not because it had purchased property not zoned for churches.” Id. at 540.

Relying on LaGrange, the Court of Civil Appeals in Mill Bakery held that the Mih Bakery and Eatery, Inc. (“The Mill”), was entitled to a second variance to sell bquor on its premises, where it had formerly sold bquor under a license that had expired. Additionally, The Mill had renovated its property under the assumption that it could renew its expired bquor license. 587 So.2d at 391. The Court of Civil Appeals stated that “if the [second] variance was not granted ..., The Mill would suffer a financial loss not common to that of the other property owners in the district, in bght of the cost of renovations The Mill undertook based on its reliance on the previous variance.” Id. at 392 (emphasis added). The court further stated: “The Mib’s unique financial loss would result from its reliance on the [first] variance and [consequent] bquor license, not because it had purchased property on which restaurants and bquor sales were prohibited.” Id.

Vernon argues that he is similarly situated to the Church and The Mill. Like the Church and The Mill, he is entitled to rely, he contends, on the variance, by which he installed his daughter’s mobile home, for the right to install his mobile home. We disagree with this contention.

LaGrange and Mill Bakery were decided based on a quasi-estoppel theory. Assuming — without deciding — that the two cases were correctly decided, Vernon’s reliance on them is misplaced. In each of those cases, successive variances were sought from zoning restrictions for the identical use. In LaGrange, the first variance was granted, and the second one denied, for the construction of the same church budding on the same property. In Mill Bakery, the first variance was granted, and the second one denied, for the sale of bquor on the same premises. This ease, by contrast, involves variances for two distinct uses, namely, two mobde homes. The first variance adowed Vernon to in-stad a mobde home as a residence for his daughter. The second variance was sought three years later, not with regard to his daughter’s mobde home, but to adow Vernon to install a second mobde home for a purpose wholly unrelated to the instadation of the first mobde home.

These are not technical distinctions. Vernon was not entitled to rely on one variance as a basis on which to instad an indeterminate number of mobde homes— or even a second mobde home — in the zoning district. Were we to adopt Vernon’s proposed rule, zoning boards of adjustment would be reluctant to grant a single variance out of concern that one such variance could precipitate the evisceration of their power to enforce use restrictions. Such a rule “would tend to destroy or greatly impair the whole system of zoning.” Priest v. Griffin, 284 Ala. at 102, 222 So.2d at 357.

In short, Vernon’s self-created financial hardship is not of a nature uncommon to property owners in the district. For that reason, the trial court erred in granting the variance. The judgment is, therefore, reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ., concur.


author: HARWOOD, Justice.

text:
    Wallace ROBINSON v. Daniel BENTON.
    1010167.
    Supreme Court of Alabama.
    May 24, 2002.
    Rehearing Denied Aug. 16, 2002.
    James G. Curenton, Jr., Fairhope, for appellant.
    Charles C. Simpson III of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Bay Minette, for appellee.
   HARWOOD, Justice.

Wallace Robinson appeals from the trial court’s order granting a motion to dismiss filed by Daniel Benton. We affirm.

On March 22, 2001, Robinson filed a complaint against Benton. That complaint stated:

“1. The Plaintiff, Wallace E. Robinson, is a resident of Baldwin County, Alabama and is the natural child of Dorothy S. Postle, deceased.
“2. The Defendant, Daniel A. Benton, is a resident citizen of Baldwin County, Alabama and is an attorney licensed by the State of Alabama with his principal place of business located in Fairhope, Alabama.
“3. This is a legal service Lability action pursuant to Ala.Code § 6-5-570, et al.
“4. In 1991, Dorothy S. Postle ... requested that the Defendant Benton prepare a Will according to her instructions. Benton prepared said Will and on or about April 4, 1991, Postle signed the instrument and Benton delivered it to her for keeping with her important personal papers.
“5. After the death of her husband, Frederick 0. Postle, on February 5, 1999, Dorothy S. Postle ... met with Benton in his office and delivered to him the original of the April 4, 1991, Will. During that meeting with Benton, Dorothy S. Postle ... instructed him as her attorney to destroy the existing Will and [to] prepare another Will at that time. Further, Dorothy S. Postle ... expressly informed Benton as her attorney that she wanted to exclude Barbara Brown and Louis Fred Postle, from her new Will. Benton took notes of said meeting with Dorothy S. Postle ... and in his notes referenced the instructions to ‘destroy old Will,’ meaning the Will of April 4, 1991. During that meeting Benton and Dorothy S. Postle ... discussed some of the changes Postle wanted to make in her new Will which Benton was to prepare.
“6. Subsequently Dorothy S. Postle suffered from declining health and never had another appointment with Benton. Notwithstanding Dorothy S. Postle’s instructions to destroy the existing Will, Benton failed to destroy the April 4, 1991, Will as instructed by his client. Moreover, following the death of Dorothy S. Postle,’Benton was contacted by Daniel K. Bankester, who at that time was a practicing attorney in Baldwin County, who purported to represent Rita Postle. Benton informed Daniel T. Bankester that he had possession of the April 4, 1991, Will which Dorothy S. Postle ... had delivered to him expressly for the purpose of revoking and destroying it.
“7. Rita Postle then filed for probate the April 4, 1991, Will of Dorothy S. Postle, deceased, ... in the Probate Court of Baldwin County, Alabama and received the Letters Testamentary for the estate of Dorothy S. Postle.
“8. Benton not only failed to destroy the April 4, 1991, instrument, but further failed to disclose to Dorothy S. Postle ... that he had not destroyed said instrument. At all relevant and material times, Benton served as a fiduciary for Dorothy S. Postle ... as her attorney and, as such, Benton’s failure as a fiduciary to disclose that he had not destroyed the April 4, 1991, Will constitutes a suppression of material fact within the meaning of Ala.Code § 6-5-102.
“9. If the April 4, 1991, Will offered for probate had been destroyed as Dorothy S. Postle ... instructed her attorney Benton, Dorothy S. Postle would have died intestate and her sole heirs at law would have been the Plaintiff and a sibling. As a result of Benton’s failure and breach of duty, the Plaintiff has suffered damages inasmuch as the residual estate will be divided into four (4) equal shares pursuant to the terms of said instrument and not divided in two (2) equal shares as it would have been divided under the laws of intestate succession.
“10. The Defendant Benton owed a standard of care to Dorothy S. Postle ... in the handling of the estate matter discussed herein. Benton owed Dorothy S. Postle ... that level of reasonable care, skill and diligence as other similarly situated legal service providers in the same general line of practice in this area have and exercise in a like case. The Plaintiff, as natural children [sic] of Dorothy S. Postle, would have been the sole heirs [sic] at law of their [sic] mother’s estate had Benton not breached his duty to- Dorothy S. Postle.... By failing to destroy the April 4, 1991, [Will] as instructed by Dorothy S. Postle ... and by [failing] to disclose to his client that he did not destroy said Will, Benton has caused Barbara Brown and Louis Fred Postle to benefit from monies and assets in the Estate of Dorothy S. Postle ... to which they would not have been entitled under the laws of intestate succession. Hence, Benton’s failure to destroy the April 4, 1991, Will and failure to disclose to his client that [he] did not destroy said Will has caused damages to the Plaintiff as alleged herein.
“11. Benton’s breach of his duty of care to Dorothy S. Postle ... the mother of [the] Plaintiff[,] has proximately caused the Plaintiff to suffer damages.”

On May 11, 2001, Benton filed a motion to strike certain allegations in Robinson’s complaint and to dismiss; his motion stated:

“Comes now the defendant, Daniel A. Benton and moves the Court, separately and severally as follows:
“1. To strike the allegations contained in paragraph 8 of the complaint, on the ground that a ‘legal service liability action’ is an exclusive remedy. Ala. Code § 6-5-573 (1975).
“2. To dismiss the action, on the ground that plaintiff lacks standing and the complaint therefore fails to state a claim against defendant upon which relief can be granted. Peterson v. Anderson, 719 So.2d 216 (Ala.Civ.App.1997), cert. denied, (Ala.1998).”

On August 21, 2001, the trial court conducted a hearing on Benton’s motion to strike and to dismiss.

On August 23, 2001, Robinson filed an affidavit by Benton that had been filed in Dorothy Postle’s estate proceedings, accompanied with a notice of fifing stating that the affidavit had been read to the trial court during the August 21 hearing. Benton’s affidavit, having been sworn to on September 20,1999, stated:

“I am an attorney authorized and licensed to practice law in the State of Alabama. Dorothy S. Postle was a client of mine for a number of years. In 1991, Ms. Postle asked me to prepare a will according to her instructions. I did so, and such will was signed by her on April 4, 1991, and delivered to her for keeping with her important personal papers. I did not see that will again until Ms. Postle brought it to me after the death of her husband, Frederick O. Pos-tle. I saw Ms. Postle on February 5, 1999, in my office, at which time she delivered to me the original of the April 4, 1991, will. At the time of my meeting with her, she said she wanted both her will destroyed and it to be replaced with a new one but that she wanted ‘Fred’s kids to get nothing.’ My notes of my meeting with her on that day include a reference to ‘destroy old will,’ referring to the will of April 4, 1991. We discussed some of the changes she wanted to make in her new will but she wanted to think about some others. Her declining health intervened, and she never had another appointment with me. I failed to destroy the April 4, 1991, will that had been delivered to me expressly for the purpose of revoking it, and that I was prepared so to testify.”

On August 27, 2001, the trial court entered an order granting Benton’s motion to strike and to dismiss. Robinson filed a notice of appeal to this Court on October 9, 2001.

On appeal, Robinson asserts in his brief to this Court as follows:

“Robinson argues that the law concerning an attorney’s duty to third party beneficiaries in cases like this one should be changed to reflect the public policy upheld by the majority of States, and further argues that his claim falls outside of the Alabama Legal Liability Act found in Ala.Code § 6-5-570, et seq., without any change in Alabama law.”

In arguing for a change of law, Robinson recognizes that “[u]nder current Alabama law an intended beneficiary cannot bring a civil action against the attorney unless the duty arises from a gratuitous undertaking by the attorney.” (Appellant’s brief at 11, citing Peterson v. Anderson, 719 So.2d 216 (Ala.Civ.App.1997), and Shows v. NCNB Nat’l Bank of North Carolina, 585 So.2d 880 (Ala.1991)).

While the trial court granted what Benton had styled as a motion to strike and to dismiss, the record shows that, in addition to the pleadings, Robinson filed with the trial court Benton’s affidavit in the estate proceeding, and the trial court considered the affidavit before entering the dismissal. Thus, his motion to strike and dismiss was converted to a motion for a summary judgment and our standard of review is not the standard applicable to a grant of a motion to dismiss, but rather the standard of review applicable to a summary judgment.

“When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977). ‘Once matters outside the pleadings are considered, the requirements of Rule 56, [Ala. R. Civ. P.], become operable and the “moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.” C. Wright & A. Miller, Federal Practice & Procedure, Civil, § 1366 at 681 (1969).’ Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986).”

Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997).

There being no genuine issue as to any material fact presented in this case, and given the current state of the law, Benton would be entitled to a judgment as a matter of law. The cases from both this Court and the Court of Civil Appeals referenced by Robinson in his brief to this Court— Shows, supra, and Peterson, supra — stand for the proposition that an intended beneficiary has no standing to bring a legal-malpractice action against an attorney because there is no privity between the beneficiary and attorney, and in the absence of privity, the attorney owes no duty to the beneficiary.

In Shows, supra, one of the Showses’ claims was that an attorney had negligently prepared a deed of conveyance between NCNB National Bank of North Carolina and third parties who had purchased at a foreclosure sale real estate that had been owned by the Showses before they defaulted on a promissory note. In regard to the Showses’ legal-malpractice claim, this Court stated:

“In order to recover damages for legal malpractice, a plaintiff must prove the same elements that must be proven in a negligence action:
“ ‘ “To recover, the [plaintiff] must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages.” Herston v. Whitesell, 348 So.2d 1054, 1057 (Ala.1977). (Citations omitted.) “A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different.” Hall v. Thomas, 456 So.2d 67, 68 (Ala.1984). (Citations omitted.)’
“Moseley v. Lewis & Brackin, 533 So.2d 513 (Ala.1988).
“[The attorney] argues that he owed no duty to the Showses. A person authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking. Williams v. Jackson Co., 359 So.2d 798 (Ala.Civ.App.), cert. denied, 359 So.2d 801 (Ala.1978). In support of his argument, [the attorney] notes that he filed ah affidavit with the trial court in which he stated that at no time did he directly or indirectly represent the Showses. The Showses did not present any evidence to the contrary. Therefore, we hold that the trial court’s judgment [on the pleadings] was also proper as to [the attorney].”

585 So.2d at 882 (emphasis added).

In Peterson, supra, residual beneficiaries under a will filed an amended complaint that included a claim that an attorney had breached his fiduciary duties to the decedent. The attorney filed a motion to dismiss; the trial court granted the motion. The Court of Civil Appeals affirmed the trial court’s order of dismissal, stating:

“The Petersons argue that their claim against [the attorney], which falls under the Legal Service Liability Act, Ala. Code 1975, § 6-5-570 through § 6-5-581, should not have been dismissed. [The attorney] argues that the Peter-sons, as nonclients, have no standing to maintain a legal service liability action against him.
“The Legal Service Liability Act consolidates all actions against all legal service providers into one action, known as a ‘legal service liability action.’ Ala. Code 1975, § 6-5-573. That action is defined as:
“ ‘Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider’s violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission.’
“Ala.Code 1975, § 6-5-572(1). Therefore, the Petersons’ action against [the attorney] is a legal service liability action.
“In support of his contention that the Petersons have no standing to pursue a legal service liability action against him, [the attorney] cites Shows v. NCNB National Bank of North Carolina, 585 So.2d 880 (Ala.1991). In Shows, the plaintiffs alleged that an attorney had committed malpractice by drawing up a deed of conveyance between the bank and the purchasers who bought the plaintiffs’ property at a foreclosure sale. Shows, 585 So.2d at 882. The attorney argued in his motion to dismiss that he owed no duty to the plaintiffs because he did not represent them at any time. Id. The trial court agreed, and it granted his motion to dismiss. Id. The Supreme Court affirmed, stating that ‘A person authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking.’ Id.
“The Petersons argue that the statement in Shows can be traced back to an opinion rendered by this court, which gave no citation of authority for the proposition. See Williams v. Jackson Co., 359 So.2d 798 (Ala.Civ.App.), cert. denied, 359 So.2d 801 (Ala.1978). Therefore, the Petersons argue, the statement is dictum and cannot be considered authoritative. We do not believe that the statement, which has been adopted by the Supreme Court, is merely dictum. The law in Alabama is that ‘A person authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking.’ Shows, 585 So.2d at 882. Accordingly, the Petersons have no standing to maintain a legal service liability action against [the attorney].”

719 So.2d at 218-19.

In arguing that Alabama law should be changed to grant a third-party beneficiary standing to sue an attorney who has allegedly committed legal malpractice through services provided to a decedent, Robinson presents a survey of several jurisdictions that allow beneficiaries to bring malpractice claims under similar circumstances. Benton responds by arguing that Alabama law should not depart from the rule disallowing attorneys to be sued for legal malpractice absent the existence of a contract or the attorney’s performing a gratuitous undertaking, i.e., the rule stated in Shows, supra, and Peterson, supra. In making this argument, Benton cites caselaw from jurisdictions that require the claimant to be in privity with the attorney in order to have standing to bring a legal-malpractice claim.

In Barcelo v. Elliott, 923 S.W.2d 575 (Tex.1996), the Supreme Court of Texas, in addressing the issue “whether an attorney who negligently drafts a will or trust agreement owes a duty of care to persons intended to benefit under the will or trust, even though the attorney never represented the intended beneficiaries,” id. at 576, set out a thoughtful discussion of the need for the requirement of privity in such cases. That court stated:

“At common law, an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney’s negligent representation of the client. Without this ‘privity barrier,’ the rationale goes, clients would lose control over the attorney-client relationship, and attorneys would be subject to almost unlimited liability. Texas courts of appeals have uniformly applied the privity barrier in the estate planning context.
“Plaintiffs argue, however, that recognizing a limited exception to the privity barrier as to lawyers who negligently draft a will or trust would not thwart the rule’s underlying rationales. They contend that the attorney should owe a duty of care to persons who were specific, intended beneficiaries of the estate plan. We disagree.
“The majority of other states addressing this issue have relaxed the privity barrier in the estate planning context.
“While some of these states have allowed a broad cause of action by those claiming to be intended beneficiaries, others have limited the class of plaintiffs to beneficiaries specifically identified in an invalid will or trust. The Supreme Court of Iowa, for example, held that
“ ‘a cause of action ordinarily will arise only when as a direct result of the lawyer’s professional negligence the testator’s intent as expressed in the testamentary instruments is frustrated in whole or in part and the beneficiary’s interest in the estate is either lost, diminished, or unrealized.’
“Schreiner v. Scoville, 410 N.W.2d 679, 683 (Iowa 1987).
‘We agree with those courts that have rejected a broad cause of action in favor of beneficiaries. These courts have recognized the inevitable problems with disappointed heirs attempting to prove that the defendant-attorney failed to implement the deceased testator’s intentions ....
“In sum, we are unable to craft a bright-line rule that allows a lawsuit to proceed where alleged malpractice causes a will or trust to fail in a manner that casts no real doubt on the testator’s intentions, while prohibiting actions in other situations. We believe that the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent. This will ensure that attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation.”

923 S.W.2d at 577-79 (citations and headings omitted). See also Noble v. Bruce, 349 Md. 730, 709 A.2d 1264 (1998)(holding that the Maryland Supreme Court would continue to apply the strict privity requirement in the will-drafting and estate-planning context and setting out several policy grounds in support of such a requirement); Shriners Hosp. for Crippled Children, Inc. v. Southard, 892 P.2d 417, 418 (Colo.Ct. App.1994)(“An attorney has a duty to act in the best interests of his or her client and is liable to third parties only for injuries caused by the attorney’s fraudulent, malicious, or intentionally tortious conduct.”).

We find the reasoning stated in these cases most persuasive. The change Robinson advocates implies the result that “attorneys would be subject to almost unlimited liability.” Barcelo, supra, at 577. Accordingly, we decline to change the rule of law in this state that bars an action for legal malpractice against a lawyer by a plaintiff for whom the lawyer has not undertaken a duty, either by contract or gratuitously. Shows, supra, and Peterson, supra. It is to be noted that nowhere in Robinson’s complaint did he allege that Postle was aware of the laws of intestate succession and distribution or that she otherwise had an understanding of, and intent as to, who would inherit from her estate if she were to die without following up on her expressed intention of preparing a new will.

Robinson also argues that his negligence claim against Benton falls outside the Legal Service Liability Act, § 6-5-570 et seq., Ala.Code 1975. However, the record shows that this issue was never raised before the trial court. Therefore, we cannot address this issue on appeal. “Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.” Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (citation omitted). However, we note that the Legal Service Liability Act encompasses all claims against attorneys into one action. § 6-5-573, Ala.Code 1975; Peterson, supra. Further, Robinson’s complaint specifically stated that “[t]his [was] a legal service liability action pursuant to Ala.Code § 6-5-570, et al.” Accordingly, we do not address this argument further.

For the foregoing reasons, and based on the facts before us, the judgment of the trial court is due to be affirmed.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . See, e.g., Passell v. Watts, 794 So.2d 651, 652 (Fla.Dist.Ct.App.2001)("Intended third-party beneficiaries of testamentary documents have standing to bring an action for legal malpractice if they are able to show that the testator's intent as expressed in the will is frustrated by the negligence of the testator's attorney. ”)(internal quotation marks and citations omitted); Winters v. Schulman, 977 P.2d 1218, 1225 (Utah Ct.App.1999)("In some instances the liability of an attorney to a third party may be recognized on the theory that the attorney's employment constituted a third-party beneficiary contract. The test for third party recovery is whether the parties clearly intended the third party to receive a benefit.”) (citations omitted); Desire Narcotics Rehab. Ctr., Inc. v. White, 732 So.2d 144, 146 (La.Ct. App.1999)("[T]he intended legatee under a will is considered a direct, explicit third-party beneficiary of the contract for legal services between the attorney and the testator so that, in the event the will is invalid, the legatee can have a cause of action against the attorney.”); Leyba v. Whitley, 120 N.M. 768, 773, 907 P.2d 172, 177 (1995)("Even if an intended third-party beneficiary is not strictly in privity, we join those jurisdictions that have rejected any stringent privity test as the touchstone of an attorney’s duty to a nonclient.”); Simpson v. Cativas, 139 N.H. 1, 5-6, 650 A.2d 318, 322 (1994)("We agree that although there is no privity between a drafting attorney and an intended beneficiary, the obvious foreseeability of injury to the beneficiary demands an exception to the privity rule.”); Auric v. Continental Cas. Co., III Wis.2d 507, 509, 331 N.W.2d 325, 327 (1983)(”We conclude that a beneficiary of a will may maintain an action against an attorney who negligently drafted or supervised the execution of the will even though the beneficiary is not in privity with that attorney.”).


author: BROWN, Justice.

text:
    ITT SPECIALTY RISK SERVICES, INC. v. Rhonda BARR.
    1000618.
    Supreme Court of Alabama.
    May 24, 2002.
    Rehearing Denied Aug. 30, 2002.

      Bert S. Nettles and Brennan C. Ohme of London & Yancey, L.L.C., Birmingham, for appellant.
    James V. Green, Jr., Alabaster, for ap-pellee.
   BROWN, Justice.

ITT Specialty Risk Services, Inc. (hereinafter referred to as “ITT”), appeals from the St. Clair Circuit Court’s denial of ITT’s motion for a summary judgment. The Court granted ITT’s petition for a permissive appeal pursuant to Rule 5, Ala. R.App. P. We affirm in part, reverse in part, and remand.

In May 1994, Rhonda Barr filed a workers’ compensation claim against Bruno’s Inc., for an injury that occurred in 1992 in the line and scope of her employment with Bruno’s. On June 24, 1996, ITT became the third-party administrator for Bruno’s workers’ compensation program and in that capacity began handling Barr’s claim. Barr’s workers’ compensation claim against Bruno’s was settled in November 1996, but the final order issued by the court provided that “[fjuture medical benefits [remained] open, and Barr [retained] the right to proceed in a future action for any denial of said medical benefits.” Barr returned to work at Bruno’s and worked there until January 1998.

. In January 1998, Barr telephoned ITT, complaining of further medical problems related to her 1992 injury, and she requested medical treatment. ITT authorized treatment from Dr. Sharon Colgin, the physician who had treated Barr’s injury before the final order based on the settlement was issued in 1996. On January 26, 1998, ITT received a telephone call from Dr. Colgin’s office; during that call ITT was informed that Dr. Colgin had not treated Barr since 1995, and Dr. Colgin requested authorization from ITT to treat Barr.

Although Barr’s appointment with Dr. Colgin was rescheduled several times by both Dr. Colgin and by Barr, Barr eventually saw Dr. Colgin on June 16, 1998. On June 23, 1998, Dr. Colgin’s office telephoned ITT, at ITT’s request, to update ITT on Barr’s June 16 appointment. Dr. Colgin informed ITT that she recommended a nerve-conduction study to further evaluate Barr’s complaints; ITT authorized the study. ITT authorized a second appointment for Barr with Dr. Colgin on July 28, 1998. At that time, Dr. Colgin made the following note in Barr’s file:

“I would recommend that [Barr] consider seeing a pain specialist, for I think that she will have problems from here on out. I would recommend that she be sent to see Dr. Toutec at HealthSouth or Dr. Claudia McDonald, a neurosurgeon and pain specialist here at Brookwood Medical Center. I think that treatment] by a pain specialist would allow Ms. Barr to become more functional.”

At the bottom of the note is the caption “cc: W/C Nicole Davis, Claims, ITT Specialty Risk Services, Inc., Post Office Box 305104, Nashville, TN 37230-5104.” At the bottom of this note is a check mark. Dr. Colgin testified that the check mark was used in her office to indicate that the note had been copied and sent to the appropriate address.

On August 4, 1998, ITT received a telephone call from Barr, stating that Dr. Col-gin had referred her to Dr. Toutec at HealthSouth. ITT advised Barr that it could not authorize treatment by Dr. Tou-tec until ITT had received a referral from Dr. Colgin and her notes from the nerve-conduction study. On September 9, 1998, ITT made the following statements in its activity log for Barr’s case:

“Dr. office is waiting for call regarding treatment.... Please contact Dr. Col-gin’s office and obtain [her] notes — find out about the Dr. at HealthSouth. Is this a Dr. we want clmt treating w/? Insured wants to make sure we continue to keep control of this claim and the treating Dr. as they question if clmt is trying to get treatment w/ another physician.”

On September 10, 1998, an ITT employee telephoned Barr. Barr explained to the ITT employee that she had been referred to Dr. Toutec by Dr. Colgin for pain management. Also on September 10, 1998, ITT’s activity log indicates a conference telephone call between ITT employees and Bruno’s employees who monitor workers’ compensation claims. The notation in ITT’s activity log after the conference call reads: “Another major issue on this case is that if we are going to keep it on this claim, clt should not involve a new phys.”

On September 11, 1998, Valerie Boston, an ITT employee, took a recorded statement from Barr concerning Barr’s injury and her treatment for that injury. In this statement, Barr informed Boston that she had been referred to Dr. Toutec by Dr. Colgin for pain management. Also on September 11, 1998, ITT telephoned Dr. Colgin’s office and an ITT employee spoke with Verda Lloyd, Dr. Colgin’s secretary. ITT maintains that this telephone call indicated that neither Dr. Colgin nor Barr had provided ITT with Barr’s medical records. However, the entry made in ITT’s activity log on September 11,1998, states:

“Call to Dr. Colgin’s office ... S/W Ver-da. She states that the medicals have been sent & faxed to us 4 times & she refused to do it again. She stated she would mail a copy of the records to clmt & then the clmt can be responsible for getting it to us.”

On September 14, 1998, ITT placed another call to Dr. Colgin’s office. The activity log states that Verda Lloyd indicated that Dr. Colgin had not referred Barr to another physician. However, Verda Lloyd submitted an affidavit in which she avers that she never made such a statement and that, because she does not practice medicine, she was authorized only to answer ITT’s questions by reading to ITT the contents of Barr’s medical records. ITT does not point to any of Barr’s medical records that contain the statement made in the activity log.

Barr had a third appointment with Dr. Colgin on September 23, 1998. On that day, Dr. Colgin made the following notes in answer to a questionnaire submitted to her by ITT:

“At the time of our last visit, I did feel that she would benefit for her to see a pain specialist and she has been told by her W/C company that I would have to make that referral. Given that, I will make referral to Dr. Claudia McDonald, a Neurosurgeon at Brookwood. I feel that she will always have an element of chronic pain, and hopefully a pain specialist would be able to help her in some way. I do feel that she will be able to return to some type of gainful employment, but for the time being ... I would recommend that she not be returned to work until she sees the pain specialist.
“Personally, I have no surgical treatment options remaining, and I am making a referral to Dr. Claudia McDonald, a Neurosurgeon and pain specialist.”

At the bottom of the note, the line showing the distribution of copies indicated that a copy had been sent to ITT at its Nashville, Tennessee, address. Next to the address was a check mark, indicating that the note had been copied and placed in the mail.

On October 7, 1998, Barr telephoned ITT and stated that Dr. Colgin had referred her to Dr. Claudia McDonald for pain management. ITT told Barr that, at that time, it had not been informed that a referral had been made. On October 20, 1998, ITT telephoned Dr. Colgin’s office concerning the referral. ITT’s activity log indicated that one of Dr. Colgin’s employees stated that Dr. Colgin had “recommended” that Barr see a pain-management specialist, but that she did not “refer” Barr to a pain-management specialist. Verda Lloyd and Debbie Weichman, Dr. Colgin’s office manager, submitted affidavits stating that they only read Barr’s medical records aloud to ITT in response to ITT’s telephone calls about Barr’s treatment. Lloyd and Weichman both denied making the statement recorded in ITT’s activity log, and ITT has not demonstrated where this statement appears in Barr’s medical records.

In November and December 1998, ITT’s activity log records some of Dr. Colgin’s medical notes and the results of the nerve-conduction study. Jennifer Craddock, Jennifer Shelton, and Valerie Boston, who handled claims for ITT, testified in depositions that ITT’s policy on referrals is that either the referring doctor or the doctor to whom the patient is referred must telephone ITT to receive official authorization for the referral. All three ITT employees admitted that they had never informed Barr or Dr. Colgin of this policy. Furthermore, the ITT employees testified that this “policy” is not a written policy. Each claims adjuster testified that she did not doubt the medical necessity of pain management for Barr or the reasonableness of her request for authorization for such treatment, but that ITT was waiting for a telephone call from Dr. Colgin’s office before ITT would authorize the referral. Jennifer Craddock testified that as a processor on Barr’s file she could have authorized treatment for Barr by a pain specialist even without a telephone call from Dr. Colgin.

Barr stated in her deposition testimony that because ITT refused either to tell her the procedure for obtaining a referral under its guidelines or to authorize treatment by a pain-management specialist, she eventually made an appointment on her own with Dr. Charles Crowe. On March 5, 1999, Barr filed this action against ITT. Shortly thereafter, ITT assigned a rehabilitation nurse to Barr’s case and approved Barr’s treatment by a pain specialist, Dr. Ted Sartain. After approximately five months’ treatment by Dr. Sartain, Barr’s pain was under control and Dr. Sartain noted that Barr was “getting along fine.”

Barr’s complaint against ITT alleged breach of contract, negligence and wantonness, fraud and deceit, fraudulent misrepresentation, civil conspiracy, fraudulent suppression, and the tort of outrage. ITT moved for a summary judgment, requesting the St. Clair Circuit Court to dismiss all of Barr’s claims. The trial court entered a summary judgment for ITT on Barr’s breach-of-contract claim, negligence and wantonness claims, fraud and deceit claims, and civil-conspiracy claim. The court denied ITT’s motion for a summary judgment as to Barr’s claims asserting the tort of outrage, fraudulent misrepresentation, and fraudulent suppression. ITT argues that the trial court erred in denying its summary-judgment motion as to those claims. ITT petitioned for permission to appeal from an interlocutory order under Rule 5, Ala. R.App. P. We granted the petition.

Discussion

The law governing this Court’s review of a summary judgment is well-settled:

“[A] party moving for a summary judgment [under Rule 56, Ala. R. Civ. P.,] is entitled to such a judgment if that party meets the following two-tiered standard: 1) There must be no genuine issue of material fact and 2) the movant must be entitled to a judgment as a matter of law. Rule 56(c); Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). Furthermore, this Court must view all the evidence in a light most favorable to the nonmovant and must resolve all reasonable questions from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991); see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So.2d at 257. If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by presenting ‘substantial evidence’ creating a genuine issue of material fact. Id. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989).”

Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1266 (Ala.2000).

I.

ITT argues that Barr failed to produce any evidence creating a genuine issue of material fact as to her claim alleging the tort of outrage. For Barr’s tort-of-outrage claim to survive ITT’s properly supported motion for a summary judgment, Barr was required to produce substantial evidence that ITT, by extreme and outrageous conduct, intentionally or recklessly caused her severe emotional distress. See American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980).

“The emotional distress ... must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”

Inmon, 394 So.2d at 365 (citation omitted). Although this Court held in Garvin v. Shewbart, 442 So.2d 80 (Ala.1983), that the exclusivity provisions of Alabama’s Workers’ Compensation Act do not bar claims based on the tort of outrage, this Court has affirmed tort-of-outrage claims based on outrageous conduct in a workers’ compensation context only two times since the tort of outrage was recognized in 1980. See Travelers Indem. Co. of Illinois v. Griner, 809 So.2d 808 (Ala.2001); and Continental Cas. Ins. Co. v. McDonald, 567 So.2d 1208 (Ala.1990).

“In Gibbs v. Aetna Casualty & Surety Co., 604 So.2d 414 (Ala.1992), we acknowledged that McDonald, supra, has come to represent the minimum threshold that a defendant must cross in order to commit outrageous conduct.” State Farm Auto. Ins. Co. v. Morris, 612 So.2d 440, 443 (Ala.1993). McDonald was injured in the line and scope of his employment. He filed a workers’ compensation action against Continental Casualty Insurance Company (“CNA”), his employer’s insurance carrier, and settled the disability portion of the claim for $12,000. The judgment accepting the settlement left open the medical portion of the claim, and CNA was liable for all of McDonald’s future medical expenses arising from his injury.

Over a period of five years, CNA delayed payments to doctors, hospitals, and pharmacists for unreasonable periods. The delayed payments resulted in the hospitals’ threatening McDonald with collection actions and caused a pharmacy to refuse to provide him with pain medication. CNA refused to pay for a whirlpool bath that had been prescribed by McDonald’s doctor and continued to insist that McDonald try other alternatives to the whirlpool, although McDonald’s doctor repeatedly explained to CNA that other alternatives were not viable. CNA then attempted to coerce McDonald into settling for an amount far less than CNA owed him.

McDonald sued CNA, alleging the tort of outrage. The jury returned a verdict in favor of McDonald. CNA appealed; this Court held that the facts of McDonald’s case supported a finding that CNA “systematically withheld payments in order to cause McDonald anguish over the possibility of the cessation of medical treatments for his pain and thereby to cause him to accept a method of payment that would not subject him to CNA’s ‘aggravation,’ as he called it.” 567 So.2d at 1221.

In the case before us, Barr has presented substantial evidence from which a jury could reasonably find that ITT had unreasonably refused to authorize her treatment by a pain-management specialist. Jennifer Craddock, Jennifer Shelton, and Valerie Boston each testified that she did not doubt Barr’s need for treatment with a pain-management specialist, yet each refused to authorize the treatment. The notes entered in ITT’s activity log could certainly be interpreted to mean that ITT had decided that Barr was not to receive treatment by any other physicians, regardless of her needs. Furthermore, ITT authorized treatment for Barr by a pain-management specialist after Barr filed this action against ITT, even though Dr. Colgin never telephoned ITT to authorize the referral.

The refusal alone to authorize the referral, however, does not rise to the threshold of the outrageous behavior set out in McDonald. McDonald had numerous problems with CNA’s failure to authorize the most basic of claims for over five years. CNA then used the results of its failure to pay to coerce McDonald into settling with CNA for an amount much smaller than his medical needs would have required. McDonald presented evidence demonstrating that he faced severe pain every day and that CNA took advantage of his pain by ceasing to pay for his pain medication. The evidence supported the finding that CNA intentionally caused McDonald severe emotional distress and that it attempted to use that distress for its gain.

The facts of Barr’s case are more analogous to the facts in Wooley v. Shewbart, 569 So.2d 712 (Ala.1990). Carolyn Wooley sued her employer and her employer’s workers’ compensation insurance carrier, alleging the tort of outrage. Wooley argued that the defendants’ refusal to continue paying workers’ compensation benefits to her and the defendants’ refusal to approve a scheduled hip operation for her, despite her doctors’ recommendations, was conduct “so extreme as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.” Wooley, 569 So.2d at 715.

The trial court denied the defendants’ motion for a summary judgment on the tort-of-outrage claim, and the defendants appealed. This Court observed that Woo-ley’s allegation was “simply that Shewbart denied Wooley’s claim with no arguable reason for doing so.” Wooley, 569 So.2d at 717. The only aspect of the denial that could possibly have been outrageous was the fact that the denial came shortly before Wooley’s scheduled hip operation. The denial and the timing aspect, however, did not rise to the level of outrageous conduct necessary to survive the defendants’ summary-judgment motion.

Similarly, Barr alleges that ITT refused to authorize her referral to a pain-management specialist, for no arguable reason, until she filed the present action against ITT. Even if Barr’s allegations are true, the failure to authorize a referral alone does not amount to “conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” American Road Serv. Co., 394 So.2d at 365 (citation omitted). Barr has failed to produce any evidence demonstrating that ITT acted intentionally or recklessly to cause Barr extreme emotional distress. Furthermore, Barr has failed to produce any evidence to show that ITT’s conduct was “outrageous” as that term is defined in American Road Service Co., 394 So.2d at 365.

Because Barr failed to produce substantial evidence to support her tort-of-outrage claim against ITT, the trial court’s denial of ITT’s summary-judgment motion as to this claim is due to be reversed.

II.

ITT contends that the trial court wrongly denied its motion for a summary judgment on Barr’s fraudulent-suppression and fraudulent-misrepresentation claims against ITT. First, ITT maintains that Barr failed to produce clear and convincing evidence to support her claim of fraudulent suppression. Specifically, ITT argues that it did not owe Barr a duty to disclose its procedures for obtaining a referral to a pain specialist. Barr responds that under the facts of this case, there was no way, other than disclosure of the procedures by ITT, for Barr or her doctor to learn the appropriate manner to comply with ITT’s requirements for obtaining a referral to a pain specialist. Therefore, according to Barr, ITT did have a duty to inform her or her doctor as to the appropriate referral procedures.

Alabama’s Workers’ Compensation Act (“the Act”) applies to injuries resulting from accidents “arising out of and in the course of’ the employee’s employment. See § 25-5-51, Ala. Code 1975. See also Ex parte Kmart Corp., 812 So.2d 1205 (Ala.2001); Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999); Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996); Ex parte Patterson, 561 So.2d 236 (Ala.1990); and Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987). When an employee suffers injuries that do not result from an accident “arising out of and in the course of’ his or her employment, that employee is not precluded by the exclusivity provisions of the Act from bringing an intentional-tort claim against an employer or against an agent of the employer. “This Court has recognized that intentional tortious conduct, such as intentional fraud, ‘committed beyond the bounds of the employer’s proper role,’ is actionable notwithstanding the exclusivity provisions of the workers’ compensation act.” Hobbs v. Alabama Power Co., 775 So.2d 783, 786 (Ala.2000), quoting Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So.2d 90, 95 (Ala.1989). See also Namislo v. Akzo Chem. Co., 671 So.2d 1380 (Ala.1995); Gibson v. Southern Guar. Ins. Co., 623 So.2d 1065 (Ala.1993); Gibbs v. Aetna Cas. & Sur. Co., 604 So.2d 414 (Ala.1992); Tittle v. Custard Ins. Adjusters, 590 So.2d 880 (Ala.1991); and Garvin v. Shewbart, 564 So.2d 428 (Ala.1990).

In order to defeat ITT’s motion for a summary judgment on these intentional-tort claims, however, Barr must meet a higher standard to demonstrate that a material issue of fact exists.

“ ‘[A] plaintiff, in order to go to the jury on a claim [alleging intentional tortious conduct], must make a stronger showing than that required by the ‘substantial evidence rule’ as it applies to the establishment of jury issues in regard to tort claims generally. See Code 1975, § 12-21-12. Therefore, we hold that in regard to a fraud claim against an employer, a fellow employee, or an employer’s insurer, in order to present a claim to the jury, the plaintiff must present evidence that, if accepted and believed by the jury, would qualify as clear and convincing proof of fraud.’ ”

Hobbs, 775 So.2d at 787 (quoting Lowman, 547 So.2d at 95). Thus, in order for Barr’s fraudulent-suppression claim to go to a jury, Barr must demonstrate by clear and convincing evidence each of the following elements:

“(1) [T]hat the defendant had a duty to disclose a material fact; (2) that the defendant concealed or failed to disclose this material fact; (3) that the defendant’s concealment or failure to disclose this material fact induced the plaintiff to act or to refrain from acting; and (4) that the plaintiff suffered actual damage as a proximate result of being induced to act or to refrain from acting.”

Ex parte Walden, 785 So.2d 335, 338 (Ala.2000).

ITT disputes only the first element of Barr’s fraudulent-suppression claim; it insists that it had no duty to inform Barr or her doctor of the procedures necessary to obtain a referral to a pain specialist. Section 6-5-102, Ala. Code 1975, states that a duty to disclose a material fact arises when there is a confidential relationship between the parties or when the particular circumstances of the case require such a disclosure. In evaluating whether ITT had a duty to inform Barr of its referral procedures, this Court considers several factors: “(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff’s opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.” State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 842-43 (Ala.1998).

These factors, when considered together, weigh heavily in favor of Barr’s claim that ITT owed her a duty to inform her of the proper manner in which to obtain a referral. We first note that ITT was the third-party administrator of workers’ compensation claims against Bruno’s. Therefore, Barr was dependent on ITT’s approval of her referral to a pain specialist before she could receive treatment for her work-related injury. Obviously, if Barr wanted her work-related injury to be treated under her employer’s workers’ compensation plan, Barr had to receive ITT’s approval of Dr. Colgin’s referral.

Second, ITT’s employees stated that ITT had a policy that prevented them from authorizing referrals until ITT received a telephone call from either the doctor making the referral or the doctor to whom the patient was referred. In this case, it appears that ITT was the only party with knowledge of this fact. ITT admits that it never informed Barr of this policy, even after she made several telephone calls to ITT to check on the progress of her referral to a pain specialist. Barr maintains that she was not aware of this policy, and ITT has presented no evidence to demonstrate otherwise. Furthermore, ITT admits that it never told Dr. Colgin of this requirement, and the record contains no evidence indicating that ITT informed Dr. McDonald, the pain specialist referred by Dr. Colgin, that she had to call ITT to obtain approval of the referral.

Third, the fact that ITT would not authorize Barr’s referral to a pain specialist without a telephone call from Dr. Colgin or a telephone call from the referred pain specialist is the crux of this case. Fourth, it is undisputed that Barr had no opportunity to obtain information concerning ITT’s policy for referrals from any other source. The record contains deposition testimony of ITT employees, one of whom was a supervisor, each admitting that this “policy” is not a written one. As discussed above, the ITT employees further admitted that they did not inform Barr or Dr. Colgin of this policy, and ITT does not present any evidence indicating that it informed Dr. McDonald of the necessity of a telephone call before she could be authorized to treat Barr. The record is devoid of any explanation from ITT as to how Dr. Colgin or Barr should have known that Dr. Colgin or the pain specialist to whom Barr was seeking to be referred needed to call ITT to obtain official authorization for Barr’s referral.

Finally, ITT has not demonstrated that its policy is the standard custom in its trade. Although two of ITT’s employees stated that ITT’s requirements were standard practice in the industry, it is not at all clear from the record that either employee was qualified to testify as to standard customs in the insurance industry.

After reviewing the record, the arguments of the parties, and the applicable caselaw, we conclude that the trial court correctly decided that ITT owed Barr a duty to disclose the procedures for obtaining a referral to a pain specialist. Furthermore, Barr has presented evidence, that, if accepted and believed by a jury, would qualify as clear and convincing evidence of fraudulent suppression by ITT. Therefore, we affirm the trial court’s denial of ITT’s motion for a summary judgment as to Barr’s claim of fraudulent suppression.

III.

ITT indicated in its petition to this Court for permission to appeal the interlocutory order that it intended to appeal the trial court’s denial of a summary judgment on Barr’s claim of fraudulent misrepresentation. ITT, however, fails to make any specific argument in its brief or in its reply brief as to why the trial court’s ruling as to this claim was erroneous. Because it is not the duty of this Court to create and advance legal arguments for the parties, we affirm the trial court’s denial of ITT’s summary-judgment motion as to this issue. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994), citing Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992).

Conclusion

Because Barr failed to present substantial evidence in support of each element of her tort-of-outrage claim, we reverse the trial court’s denial of ITT’s summary-judgment motion as to that issue. We affirm the trial court’s denial of the summary-judgment motion as to Barr’s remaining intentional-tort claims. Barr produced evidence that, if accepted and believed by a jury, would qualify as clear and convincing evidence of fraudulent suppression. Furthermore, ITT has failed to provide this Court with any specific argument demonstrating that the trial court erred in denying ITT’s motion for a summary judgment as to Barr’s fraudulent-misrepresentation claim. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . ITT argues that Barr must present “clear and convincing” evidence of her outrage claim in order to survive summary judgment. The appropriate standard for overcoming a summary-judgment motion on a claim asserting the tort of outrage in a workers' compensation context is to produce "substantial evidence.” See Farley v. CNA Ins. Co., 576 So.2d 158 (Ala.1991); and Nabors v. Travelers Ins. Co., 551 So.2d 308 (Ala.1989).


author:
WOODALL, Justice.
      JOHNSTONE, Justice

text:
    Ex parte David CANIDATE. (In re David Canidate v. State of Alabama).
    1011656.
    Supreme Court of Alabama.
    Aug. 16, 2002.
    Joel L. Sogol, Tuscaloosa, for petitioner.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

WRIT DENIED. NO OPINION.

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

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

While the decision by the Court of Civil Appeals appears to conflict with Carlisle v. State, 512 So.2d 150 (Ala.Crim.App.1987), quoted at pages 1-7 of the petitioner’s brief, the petitioner has not invoked Rule 39(a)(1)(D), Ala. R.App. P., “conflict” as a basis for our certiorari jurisdiction.