author:
PER CURIAM. HOUSTON, Justice LYONS, Justice
      JOHNSTONE, Justice HARWOOD, Justice

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION and Yerby Chevrolet, Inc. v. Randall DUBOSE.
    1001060.
    Supreme Court of Alabama.
    Jan. 18, 2002.
    As Modified on Denial of Rehearing May 3, 2002.
    Harlan I. Prater IV and Sara Anne Ford of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants.
    Clatus Junkm and Charles E. Harrison of Junkin & Harrison, Fayette, for appel-lee.
   PER CURIAM.

Yerby Chevrolet, Inc., and General Motors Acceptance Corporation (“GMAC”) appeal the trial' court’s certification of two classes of plaintiffs in a class action, pursuant to the provisions of § 6-5-642, Ala. Code 1975.

One issue is presented on appeal: Did the trial judge abuse his discretion in certifying two classes of plaintiffs under the provisions of Rule 23(b)(3), Ala.R.Civ.P.? Based on the facts of this case and the applicable law, we believe that he did, and we reverse and remand.

Facts

In 1995, Randall Dubose leased a sport-utility vehicle from Yerby Chevrolet. The lease was financed by GMAC. Following the termination of his lease, Dubose, who had paid what his lease agreement required him to pay, decided that he had been improperly charged a rental tax that the State of Alabama imposes on the lessors of automobiles. See § 40-12-222, Ala.Code 1975. GMAC claims that Alabama tax regulations expressly recognize that the rental tax may be passed along to consumers. See Ala. Dep’t of Rev. Rule 810-6-5-.09(15)(“If rental tax is billed or passed along to the lessee as a tax or additional cost of the lease, this additional amount is to be included as part of the taxable proceeds from the lease.”).

GMAC admits that “[bjefore July 1, 1997 [the date GMAC revised its lease agreement to reflect a separate charge for the Alabama rental tax], [it] did not bill lessees separately for the Alabama rental tax,” but “Mather, to recoup the costs associated with accounting for and paying the tax, for some period of time before July 1997 GMAC increased its base lease rate by 0.6% for leases acquired from Alabama dealerships.” (GMAC’s brief, pp. xxi.) GMAC admits that “[e]ffective July 1, 1997, this practice was changed for competitive reasons,” and that “[t]he rental tax is now billed to lessees as a separate item.” (GMAC’s brief, p. xi.)

The lease agreement contained the following provision:

“You agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax.”

It is undisputed that the evidence before the trial court in this case showed that the customers who leased automobiles from Yerby Chevrolet and GMAC were charged .6 percent of the total amount of the lease, which GMAC then used to pay the rental-tax. This amount was not shown as a separate item and it was not disclosed as a rental tax, but was included as a part of each lessee’s monthly lease payment.

The record shows that after September 23, 1997, GMAC required its dealers to pass through the 1.5 percent rental tax to consumers. GMAC, on September 23, 1997, notified “ALL DEALERS” of the change in policy:

“As you know, GMAC reduced the lease rate for Alabama-garaged vehicles, .60 P.P. and leases are passing through a 1.5% auto rental tax. Effective immediately, dealers must complete the following changes on all leases submitted on the Alabama version of the GMAC SmartLease Agreement:
“On the 671 SLM-AL and 671 SLS.AL (Version 8):
“In item 3 of these Lease Agreements, in the sentence, ‘You will pay all taxes on the lease or the vehicle that the government levies on you, the vehicle, or us (except our net income taxes and the Alabama Rental Tax).,’ strike through the words ‘And the Alabama Rental Tax.’ The lessee and co-lessee, if applicable, must initial this strikeover.
“Revised lease agreements are forthcoming.”

(Bold print original.)

Dubose sued GMAC and Yerby Chevrolet, alleging breach of contract, suppression, misrepresentation, “quasi-contract and unjust enrichment,” and theft by deception because some of the money he paid pursuant to his lease agreement was used by GMAC to pay the rental tax. On February 2, 2001, the trial court certified two classes, the Yerby Class and the GMAC Class. The trial court described these classes as follows:

“The Yerby Class, consisting of those residents of the State of Alabama who leased a vehicle from Yerby Chevrolet at any time within twenty (20) years prior to September 23,1997.
“The GMAC Class, consisting of those residents of the State of Alabama who have leased a vehicle from GMAC, whether through Yerby Chevrolet or otherwise, at any time within twenty (20) years prior to September 23, 1997.”

(Bold print original.)

The trial court’s order in certifying these classes reads, in pertinent part, as follows:

“The Court finds also that, if the allegations made by the plaintiff in the complaint are in fact true, there are questions of law and fact common to the members of the class.
“(1) The evidence before the court is that in 1995, the plaintiff went to Yerby Chevrolet to lease a 1995 Chevy Blazer. The GMAC Lease Agreement entered into between the plaintiff and Yerby Chevrolet states, as per ‘Rental/Use Tax’: ‘N.A.’ (i.e., Not Applicable). The Agreement also states: ‘you agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax’ (emphasis added [by trial court]). Additionally, the ‘Leasing Worksheet’ completed by Yerby states at line 29a:
“29. Items Not Capitalized
“a. Rental/Use Tax (Rate _0_ %) + $ N.A.
“(2) The evidence is undisputed that, despite the language of the Agreement, the plaintiff was charged 0.6% of the total amount financed in payment of the Alabama Rental Tax.
“(3) Although GMAC at present has its dealers pass through a 1.5% rental tax to the consumer and ... this is made explicit to the consumer on its forms, the evidence is undisputed that this was not the case prior to September 23,1997.
“(4) The Court finds there are common questions of law and fact as to whether the defendants suppressed and concealed material facts from the plaintiff and ' the plaintiff classes:
“(A) The Court finds that the evidence is not disputed that prior to September 23, 1997, neither GMAC nor its dealers disclosed to consumers that the consumer was being charged for the Alabama Rental Tax, even though the forms used by GMAC and its dealers stated that the consumer was not so charged. The testimony was that all of the transactions involving putative class members are and have been done on substantially identical paper and forms. Whether this constitutes suppression and concealment is a common question of fact and law.
“(B) The Court finds also that there are common questions of fact and law as to the misrepresentations by the defendants to the plaintiff and the plaintiff classes. Specifically, there is a common question as to whether the defendants, by and through the documents used in each transaction, misrepresented to the plaintiff and to each member of the class prior to September 23, 1997, that the defendants were not collecting the Alabama Rental Tax from the plaintiff and other class members, when the defendants were in fact collecting an amount in excess of the amount permitted under the Alabama Rental Tax. A reasonable interpretation of the documents prepared by GMAC and provided to the dealers is that the documents contain representations to the plaintiff, and to other class members prior to September 23, 1997, and that they were not collecting the Alabama Rental Tax from the plaintiff and the plaintiff class, and that the defendants then proceeded to collect not only that tax, but an amount in excess of that permitted by Ala.Code § 40-12-222. There is a question of law and fact common to the class as to whether this constitutes misrepresentation.
“(C) The evidence tends to show that the calculation, charging and collecting of monies for the Alabama Rental Tax ... was uniform across the class. The fact that the dollar amount collected may have varied from class member to class member is relevant only to the question of damages, and not to any questions of law or fact involved in certification or even as to the merits of the case.”

I.

In reviewing an order of a trial court that allows a class certification, this Court has held:

“The trial court is endowed with a substantial amount of discretion in determining whether to certify a class, and we will not disturb its determinations without a showing of abuse. Ex parte Holland, 692 So.2d 811, 814 (Ala.1997). In determining whether certification was proper, we consider whether the party seeking certification produced substantial evidence satisfying the requirements of Rule 23(a), Ala.R.Civ.P. Ex parte Green Tree Fin. Corp., 684 So.2d 1302, 1307 (Ala.1996). Rule 23(a) reads, in pertinent part:
“ ‘Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.’
“These four requirements are commonly referred to respectively as (1) ‘numerosity,’ (2) ‘commonality,’ (3) ‘typicality,’ and (4) ‘adequacy.’ ‘Numerosity and commonality concern the entire class, while typicality and adequacy concern the nexus of the named class representatives with the class itself.’ Warehouse Home Furnishing Distribs., Inc. v. Whitson, 709 So.2d 1144, 1148 (Ala.1997).”

Atlanta Cas. Co. v. Russell, 798 So.2d 664, 666 (Ala.2001).

II.

GMAC and Yerby Chevrolet argue that certification of a class in this case is improper for several reasons. First, they cite Mann v. GTE Mobilnet of Birmingham Inc., 730 So.2d 150 (Ala.1999), for the argument that the lease agreement “is ambiguous” and that that ambiguity “is fatal to [certification of the class].” 730 So.2d at 155. In Mann, this Court held: “The conclusion that the contract is ambiguous is fatal to Mann’s claim.. He cannot satisfy the commonality requirement of Rule 23(a)(2) as to questions of fact, because the evidence necessary to resolve those questions of fact will vary from case to case.” 730 So.2d at 155.

In arguing that the lease ■ agreement is ambiguous, GMAC and Yerby Chevrolet cite the following provision of the agreement:

“OFFICIAL FEES AND TAXES
“You agree to pay all fees and charges for titling, registering, licensing, testing, and inspecting the vehicle that any government authority requires during the term of this Lease. You agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax. We will include the taxes you must pay in the Payment Due at Lease Signing or in your Monthly Payment or we will bill you separately. We may change your Monthly Payment for increases or decreases in taxes, including increases of decreases that may result from a change in the vehicle’s location for tax purposes.”

GMAC and Yerby Chevrolet also note that according to Joyce Wiedman, GMAC’s operations manager, the quoted provision means that the customer “would not be separately billed for the rental tax in addition to the monthly base lease payment.” They point out that Dubose interprets the language to mean that “none of these monies [paid by the customer] is going to pay rental tax.” On the other hand, Dubose charges that GMAC and Yerby Chevrolet are suggesting “a disingenuous and implausible ‘interpretation’ of this language [to] inject ambiguity into this case where it does not exist.” (Dubose’s brief, p. 12.)

Dubose argues that the facts presented in this case present common questions of law and fact as to whether GMAC made a misrepresentation of fact to the putative class to the éffect that it was not collecting the Alabama rental tax, when in fact it was collecting that tax and more." Dubose, in his brief to this Court, states:

• “Until September 23, 1997, GMAC sought to pass on to the consumer the costs of the Alabama Rental Tax by adding 0.6 percent to the interest rates of leases financed. On the hypothetical $30,000.00 lease, for instance, assuming án interest rate of 8 percent per annum over a four-year term, GMAC would increase the annual. interest rate to 8.6 percent. The gross amount collected from the consumer for rental tax would therefore be $720.00, an additional $270.00 more than the amount imposed by § 40-12-222. This amount could vary somewhat depending on the sales price of the vehicle. In most cases, the amount of injury would be greater than the amount shown in this example.”

(Dubose’s brief, p. xi; footnote omitted.)

This Court, citing Underwood v. South Central Bell Telephone Co., 590 So.2d 170 (Ala.1991), has stated, “It is axiomatic that the question whether a contract is ambiguous is for the trial court.” Mann, 730 So.2d at 154. Thus, the question is not whether the parties have differing interpretations of allegedly ambiguous language; whether there is an ambiguity is for the trial court to determine. In Winkleblack v. Murphy, 811 So.2d 521, 525 (Ala.2001), this Court stated:

“The question whether a contract is ambiguous is for a court to decide. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999). As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999). Thus, we apply a de novo review to a trial court’s determination of the legal effect of an unambiguous contract term.”

See also Woodall v. Alfa Mut. Ins. Co., 658 So.2d 369 (Ala.1995).

In Mann, supra, this Court determined that the language in GTE’s contract that provided that customers would be billed “per minute” was ambiguous, because the language was “susceptible to more than one reasonable interpretation by the various members of the proposed class.” 730 So.2d at 155. We held that Mann had not satisfied the commonality requirement because the evidence necessary to resolve questions of fact would vary from case to case. Id.

“An ‘instrument is unambiguous if only one reasonable meaning clearly emerges.’ ” Sealing Equip. Prods. Co. v. Velarde, 644 So.2d 904, 908 (Ala.1994), quoting Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186 (Ala.1992).

The question for this Court to decide is whether one reasonable meaning of the clause in the lease agreement relating to the payment of taxes emerges. The lease agreement specifically states: “You agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax." (Emphasis added.) On the other hand, the two sentences that follow that sentence in the lease agreement state: “We will include the taxes you must pay in the Payment Due at Lease Signing or in your Monthly Payment or we will bill you separately. We may change your Monthly Payment for increases or decreases in taxes, including increases or decreases that may result from a change in the vehicle’s location for tax purposes.” These sentences refer to the Alabama rental tax, thus creating an ambiguity. The evidence shows that when Dubose signed the lease agreement, a charge for the Alabama rental tax was already included, as allowed by these last two sentences of the portion of the lease agreement entitled “Official Fees and Taxes.”

This ambiguity prevents Dubose from satisfying the- “commonality” requirement of Rule 23(a)(2), Ala.R.Civ.P., and forecloses the conclusion that “common issues predominate” in these class actions. See Mann, 730 So.2d at 155, Lackey v. Central Bank of the South, 710 So.2d 419, 420-22 (Ala.1998). What prevents commonality here and, therefore, prevents disposition of these cases as a class action is that resolving this ambiguity requires the finder of fact to determine how each class member has interpreted the ambiguous language.

In fact, in this case, there is evidence indicating that when Dubose sat down with the Yerby Chevrolet representative to finalize the lease agreement, the representative pointed out certain provisions and summarized the agreement but did not read word-for-word the language quoted above. The record shows that Dubose could not remember if he read this portion of the lease agreement before- he signed the agreement.. Neither could he recall whether a Yerby Chevrolet representative told him “there would be a rental tax, but he didn’t tell him what percentage or anything ... it would be.” The record shows that when Dubose began to question the validity of the charge for the tax, he understood that the tax would have to be paid. He testified: “I knew that I had paid it because ... you know, it’s a tax. You have to pay a tax.” He also admitted that even if the Yerby Chevrolet representative had expressly told him that the rental tax was factored into his monthly lease payments, he would have gone ahead with the transaction.

There was other testimony presented by Yerby Chevrolet and GMAC indicating that lessees often do not read the terms of the lease agreements before signing the agreements, and that sometimes customers ask questions about the lease and other times they do not, and that some ask specifically about the rental tax, but that others do not.

In addition to the above, we take judicial notice that after this appeal was filed, on May 21, 2001, Act No. 2001-636, Ala. Acts 2001, became effective. It provides that “[t]he provisions of this act shall have retroactive effect to January 1, 1988” and that “[i]t is ... the intent of the Legislature to permit lessors of tangible personal property to pass on to lessee such license or privilege[] taxes by adding such taxes to the leasing price or ■ otherwise.... ” Act No. 2001-636 further provides, “The purpose of this amendatory act is to clarify and insure the implementation of the actual purpose and original intent of the Legislature when it enacted this article.”

III.

Applying our scope of review and the applicable law, and after carefully reviewing the record in this case and considering the arguments of the parties, we are of the opinion that the trial judge did abuse his discretion in certifying the two classes in this case.

Based on the foregoing, we reverse the judgment of the trial court, and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MÓORE, C.J., and STUART, J., concur.

HOUSTON and WOODALL, JJ., concur specially.

SEE and BROWN, JJ., concur in the result.

LYONS, JOHNSTONE, and HARWOOD, JJ., concur in the result in part and dissent in part.

HOUSTON, Justice

(concurring specially).

This case arises out of a lease for an automobile. The State of Alabama imposes a tax on lessors of automobiles. Ala. Code 1975, § 40-12-222. The Alabama tax regulations expressly recognize that the tax may be passed along to consumers. Ala. Dep’t of Rev. Rule 810-6-5.-09(15). (“If rental tax is billed or passed on to the lessee as a tax or additional cost of the lease, this additional amount is to be included as a part of the taxable gross proceeds from the lease.”) On May 21, 2001, Act No. 2001-636, Ala. Acts 2001, became effective; it provides it “shall have retroactive effect to January 1, 1988” and that “[i]t is ... the intent of the Legislature to permit lessors of tangible personal property to pass on to lessees such license or privilege[] taxes by adding such taxes to the leasing price or otherwise.” Act No. 2001-636 further provides: “The purpose of this amendatory act is to clarify and insure the implementation of the actual purpose and original intent of the Legislature when it enacted this article.”

Randall Dubose leased a sport-utility vehicle from Yerby Chevrolet, Inc. Dubose’s lease was financed by General Motors Acceptance Corporation (“GMAC”).

The following language appears in the lease:

‘You [Dubose] agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our [GMAC’s and Yerby Chevrolet’s] net income and the Alabama Rental Tax.”

Dubose argues that this language means that none of the monies Dubose paid pursuant to the lease would go to pay the rental tax, while, in fact, some did.

This is a class action, alleging breach of contract, suppression, misrepresentation, “quasi-contract and unjust enrichment,” and theft by deception because some of the money Dubose paid under the lease went to pay the rental tax.

GMAC and Yerby Chevrolet argue that the above-quoted provision in the lease agreement informed the customer that the customer would not be separately billed for the rental tax, just as he would not be separately billed for GMAC’s or Yerby’s income tax on the transaction.

The best that can be said for Dubose’s position is that the above-quoted provision in the lease agreement is ambiguous. The ambiguity prevents Dubose from satisfying the “commonality” requirement of Rule 23(a)(2), Ala.R.Civ.P., and forecloses the conclusion that “common issues predominate” in these class actions. Mann v. GTE Mobilnet of Birmingham Inc., 730 So.2d 150, 155 (Ala.1999); Lackey v. Central Bank of the South, 710 So.2d 419, 420-22 (Ala.1998). What prevents commonality and therefore proper class disposition of such a case is that resolving the ambiguity requires the finder of fact to determine how each class member interpreted the ambiguous language.

Although he sings out of a different book in his good brief before this Court, at the certification hearing before the trial court, Dubose’s attorney argued:

“The Defendants contend that this is just our interpretation of the way the language reads, and they offer a different interpretation in their brief, which is that the lessee will not be charged a separate amount for this [rental tax]. Your Honor, that’s what juries are for. A jury should be able to decide which is the correct interpretation ... and that, in no way, impedes [certification].”

However, that should impede certification, Mann and Lackey, and the two classes should be decertified. I concur to reverse the judgment and to remand the case.

WOODALL, J., concurs.

LYONS, Justice

(concurring in the result in part and dissenting in part).

I concur in the result as to the reversal of certification on the tort claims, but I dissent as to the reversal of certification on the contract claim.

JOHNSTONE, Justice

(concurring in the result in part and dissenting in part).

I concur in the result of reversing the certification of the classes on the fraud claims. The correct reason for this ruling is that the issue of reliance in a fraud claim usually requires individualized proof, which negates the commonality required by Rule 23(a)(2), Ala. R. Civ. P. Ex parte Household Retail Servs., Inc., 744 So.2d 871 (Ala.1999). That is, some prospective lessees would have proceeded to lease vehicles and some would not, had they known the truth — that they would be paying the rental tax.

I respectfully dissent, however, from reversing the certification of the classes on the breach of contract claims. Two provisions of the contract documents unambiguously foreclosed GMAC and Yerby Chevrolet from charging the plaintiffs for the rental tax.

One provision states, “You agree to pay all taxes related to the lease on the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax.” (Emphasis added.) This provision categorizes the Alabama rental tax together with the lessor’s own net income tax, a tax that no party contends was or could be passed along to a lessee under the terms of the contract documents. No other language in the contract serves to differentiate between, the treatment of the Alabama rental tax and the lessor’s own net income tax, which could not be charged to the lessees. While the doctrine of contra proferentum is by no means the primary rule of contract interpretation, it should serve to discourage such a lame attempt as in the case before us by a drafter of a document to claim and to exploit an ambiguity in that document.

The second provision of the contract docmnents that unambiguously foreclosed GMAC and Yerby from charging the plaintiffs for the rental tax is the statement in the “Leasing Worksheet”: “Rental/Use Tax (Rate _0_ %) + $ N.A..” No fair interpretation of this language allows the conclusion that a lessee could be charged for the rental tax.

No genuine ambiguity in the contract documents negates the commonality of the plaintiffs’ contract , claims. Therefore we should affirm the certification of the classes for the pursuit of the contract claims.

HARWOOD, Justice

(concurring in the result in part and dissenting in part).

Although the main opinion notes that the plaintiff filed an action alleging breach of contract, suppression, misrepresentation, “quasi-contract and unjust contract enrichment,” and theft by deception, Du-bose acknowledges in his brief to this Court-that the suppression and theft-by-deception claims were dismissed by the trial court. Accordingly, we need address only the claims of breach of contract, misrepresentation and quasi-contract/unjust enrichment. As to those claims, the sole issue before us, as posited by GMAC and Yerby Chevrolet in their brief, is “did the trial court abuse its discretion by certifying plaintiff classes under Rule 23(b)(3)?”

The feature of the “GMAC Lease Agreement” that is centrally at issue in this case is the section captioned “OFFICIAL FEES AND TAXES.” That section reads in its entirety as follows (I have numbered the sentences using brackets to facilitate ease of further reference to them):

“[1] You agree to pay all fees and charges for titling, registering, licensing, testing, and inspecting the vehicle that any government authority requires during the term of this Lease. [2] You agree to pay all taxes related to the Lease or the vehicle that are levied on you, the vehicle, or us, except for taxes on our net income and the Alabama Rental Tax. [3] We will include the taxes you must pay in the Payment Due at Lease Signing or in your Monthly Payment or we will bill you separately. [4] We may change your Monthly Payment for increases of decreases in taxes, including increases or decreases that may result from a change in the vehicle’s location for tax purposes.”

GMAC and Yerby Chevrolet contend, and the main opinion concludes, that this paragraph is ambiguous, reasoning that the fairly straightforward second sentence is rendered uncertain by the two sentences that follow that sentence. The main opinion states that “[t]hese sentences refer to the Alabama rental tax, thus creating an ambiguity.” I assume that it is the third sentence of the paragraph that is deemed to create the ambiguity. I fail to discern any ambiguity, however, finding the second sentence and “the two sentences that follow that sentence,” when read together to be clear and certain in their import. The second sentence advises that the lessee is agreeing to pay all taxes, whether originally levied on the lessee, the vehicle, or the lessor, “except for ... the Alabama Rental Tax.” Accordingly, the lessee is advised that he or she is agreeing to pay all such taxes, except the Alabama rental tax. The next sentence advises that the lessor “will include the taxes you must pay” either in the “Payment Due at Lease Signing” section of the lease or in the “Monthly Payment” section of the lease, or, alternatively, will bill the lessee separately for the same. The lease agreement Dubose signed did indeed contain a “Payment Due at Lease Signing” section and a “Monthly Payment” section. The Payment Due at Lease Signing was shown to be $601.39 and the Monthly Payment was shown to be $554.89. The “Payment Due at Lease Signing” section provided the explanation, “[t]hese amounts make up the Payment Due at Lease Signing,” followed by a column of 14 different categories, to the right of each of which a blank was provided for the entry of a dollar amount. The various blanks were filled in so as to show that the amount of $601.39 as Payment Due at Lease Signing was derived from adding together the $554.89 monthly payment, a $16.50 “title fee,” and a $30.00 “clerical fee.” Various other fees and certain taxes were listed in the column as potential components of the Payment Due at Lease Signing amount, including one designated “RentaVUse Tax.” The blank opposite it, as well as those opposite the rest of the categories, was filled in with the initials “NA,” designating “not applicable.” The “Monthly Payment” section of the contract likewise provided the explanation that “[t]hese amounts make up the Monthly Payment:” followed by a column of designated potential charges and a blank opposite each charge into which any applicable amount could be entered. One of those potential components was, again, “Rental/Use Tax,” but, again, the only entry in the blank opposite that listing was “NA.” (“The Leasing Worksheet” referred to in Justice Johnstone’s special writing, which contains a similar entry reflecting that no charge was to be made for “Rental/Use Tax,” was, according to the record, merely an internal document used by Yerby Chevrolet in working up the information to be entered into the appropriate blanks of the formal lease agreement, and when the worksheet was shown to Dubose during his deposition, he stated that he had never seen it before. Nonetheless, essentially the 'same information is directly stated in the lease agreement itself, as noted above.) Accordingly, by the manner in which Yer-by Chevrolet and GMAC “inelud[ed] the taxes you must pay in the Payment Due at Lease Signing or in your Monthly Payment,” they explicitly excluded the Alabama rental tax. Also, they did not subsequently “bill [Dubose] separately” for that tax.

Another section of the lease agreement is titled “Total Estimated Fees and Taxes Payable During Lease.” A total of $416.50 is stated, followed by the explanation “[t]hese amounts make up the total.” Again there follows a column of categories, but only two of those categories are filled in with monetary amounts: “Title Fees,” for which there is the entry of $16.50, and “License Fee,” for which there is the entry of $400. For all other listed categories, including one characterized as “Rental/Use Taxes,” the explanatory entry is “NA.”

Reading all of these provisions together, I discern no ambiguity. Rather, Dubose was informed in a very straightforward fashion that he was agreeing to pay all possibly applicable taxes, “except for ... the Alabama Rental Tax” (along with taxes on Yerby Chevrolet’s and GMAC’s net im come) and that- the particular taxes he was going to have to pay,- excluding the Alabama rental tax, would be-included either in the “Payment Due at Lease Signing” or in the “Monthly Payment,” or he would be billed separately for the same. The lease agreement followed through on that representation, providing a “breakdown” of-the items that made up the “Payment Due at Lease Signing” and the “Monthly Payment,” respectively, and in each instance Dubose was told that there was no inclusion of “Rental/Use Tax.” Because I see no ambiguity in any of this, I necessarily disagree with the derivative conclusion stated in the main opinion that “[t]his ambiguity prevents Dubose from satisfying the ‘commonality’ requirement of Rule 23(a)(2), Ala. R. Civ. P., and forecloses the conclusion that ‘common issues predominate’ in these class actions.”

However, in addition to asserting an absence of commonality, GMAC and Yerby Chevrolet also challenged the trial court’s certification order on the basis that Du-bose had not carried his burden under Rule 23(a)(3), Ala. R. Civ. P., of showing that' “the claims ... of the [named plaintiff] are typical of the claims ... of the class,” and his burden under Rule 23(a)(4) of showing that “the [named plaintiff] will fairly and adequately protect the interests of the class.” In other words, in addition to clearing the “numerosity” hurdle of Rule 23(a)(1) and the “commonality” hurdle of 23(a)(2), Dubose was obliged also to clear the (a)(3) hurdle of “typicality” and the (a)(4) hurdle of “adequacy.” In that regard, the following facts (asserted and argued by GMAC and Yerby Chevrolet in their brief, and which I find to be stated by Dubose in his deposition testimony, and which are not challenged in anyway by Dubose in his brief) are pertinent.

In his deposition, Dubose stated that he “thinks” the “finance guy” at Yerby Chevrolet “explained to me about the taxes,” explaining in the process that “there would be rental tax, but he didn’t tell me what percentage or anything at that time it would be*” It was Dubose’s impression that this individual “didn’t understand the rental tax,” because Dubose does not think that the individual “even told me a percentage or anything what the rental tax would be,” but rather just told him that “there might be some, but he was not for sure.” Subsequently, after Dubose had either seen on television or read in some article an exposé of abuses sometimes attending lease transactions, he began to believe that there had been an “overcharging ... [o]f the rental tax. I think they charged me too much which was about 0.6 percent, something like that.” He came to that conclusion “[j]ust by the Alabama law says that the rental tax will be one thing and I think — I don’t know I come to the conclusion of figuring it, but I was figuring it one day and it was over that.” Whatever it was that he read or saw on television, “I just figured mine was different. I don’t remember how I come to it.” Although he experienced some difficulty during his deposition in trying to explain what he meant, he stated that during his later reconsideration of the transaction “the total amount that I had paid did not add up. The percentage was more.” He started looking into the matter, finally consulting an attorney, because, although the agreement “said I did not pay taxes, rental taxes, I knew Alabama showed that you did pay rental taxes.” So he was “wondering where the rental tax went to.” He came to the conclusion that it was included within one of the numbers on the lease agreement, “because you have to pay the taxes and I don’t figure they paid them.” When asked if he thought that the lease agreement should have specified that he was being charged a rental tax, he answered that it “should have showed how much, I think.” He thinks that the rental tax “is a lower percentage rate than what they charged me.” When he learned about the rental tax, “I knew I had paid it because I knew they wouldn’t — you know, it’s a tax. You have to pay a tax, but I just didn’t know where the tax was or how much I had paid.” When asked later, “Are you saying that it is OK that the tax is there, you just think you paid too much?” Dubose answered “Yes.” With respect to the figures “the finance guy” came up with in calculating the price he ultimately quoted, Dubose recalled that “[h]e came up with the price, and then he added something to it ... I think I remember it being a tax but as far — I can’t say that.” Asked if it was his testimony that he thought some of the numbers “related to a tax,” Dubose answered, “yes, I think so.”

Asked “if the folks that you dealt with at Yerby in April of 1995 had said, Mr. Du-bose, the Alabama rental tax is one of the things that’s factored into your monthly payment, would you have gone ahead with the lease?,” Dubose answered “yes.”

This testimony of Dubose raises serious questions concerning the nature of his understanding at the time he executed the lease agreement about the possible inclusion in his. transaction of a charge for the Alabama rental tax; whether he relied on that understanding, and whether his reliance was reasonable under all of the circumstances. Those considerations are certainly relevant to his suitability as a class representative with respect to the claim of misrepresentation. He must establish that his claim of misrepresentation is typical of the class he seeks to represent, and that he would be an adequate representative. There are clearly considerations that pertain to his particular attitude and “reliance” that would call into question his typicality and adequacy as to the misrepresentation claim, e.g., he would have gone forward with the lease of the vehicle even if he had known that the Alabama rental tax was being included in his monthly payment. “The alleged misrepresentation, therefore, did not materially contribute to his damage and was not ‘of such character that the purchaser would not have consummated the contract ... had he known the falsity of the statement.’ ” Earnest v. Pritchett-Moore, Inc., 401 So.2d 752, 758 (Ala.1981) (quoting Southern Loan & Trust Co. v. Gissendaner, 4 Ala.App. 523, 529, 58 So. 737, 739 (1912)). This, in addition to the general “reliance” variabilities the members of the class would exhibit, defeating the Rule 23(b)(3) requirement of commonality predominance, renders certification of the two classes improper as to the claim of misrepresentation.

Likewise, the individualized inquiries that would be required in connection with litigation of the “quasi-contract and unjust enrichment” claims overwhelm the finding of commonality as to them. A plaintiff asserting unjust enrichment must prove, among other things, that the “donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty,” and in the absence of such a mistake or misre-liance, “the recipient may have been enriched, but he is not deemed to have been unjustly enriched.” Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997). Each class member’s knowledge, understanding, intent, and motive would have to be .examined to determine if there had been an unjust enrichment as to them. There would be no occasion to resort to the doctrine of quasi-contract in a case such as this, where the parties rely on an express contract, unless individualized claims of variations in the contract language are asserted, based on accompanying oral representations and explanations. Accordingly, class certification as to those two theories is likewise inappropriate.

As to the contract claim, however, because I find no ambiguity in the contract language, and because GMAC and Yerby Chevrolet argue no other impediment pertinent to certification of that claim, I.dissent from the reversal of the order certifying the two classes as to that claim.

      . See Atlanta Cas. Co. v. Russell, 798 So.2d 664 (Ala.2001), in which this Court stated: "The enactment of § 6-5-642, Ala.Code 1975, a statute that became effective before the certification was made in this case, provides parties with the right of appeal from an order granting or denying class certification.”

      . The Alabama rental tax, imposed pursuant to §§ 40-12-220 to -227, Ala.Code 1975, is a privilege or license tax levied on a person or corporation in the business of renting tangible personal property. The amount of the tax for the lease of automobiles is 1.5 percent of gross proceeds derived by the lessor from the lease of the automobile.

      . The certification order was filed in the circuit clerk's office on February 7, 2001.


source: Caselaw Access Project

author: SEE, Justice. STUART, Justice

license: Public Domain

text:
    Ex parte SCOTT BRIDGE COMPANY. (In re Tim Bond v. Scott Bridge Company).
    1001558.
    Supreme Court of Alabama.
    Feb. 22, 2002.
    Rehearing Denied May 3, 2002.

      Thomas S. Thornton, Joseph H. Driver, and Khristi Doss Flood of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Clay Hornsby of Morris, Haynes & Hornsby, Alexander City, for respondent.
   SEE, Justice.

Tim Bond worked for Scott Bridge Company, a bridge construction company with its principal office in Lee County. Scott Bridge discharged Bond in April 2000, after Bond was injured on the job. Bond brought a retaliatory-discharge claim, seeking compensatory damages and punitive damages under § 25-5-11.1, Ala.Code 1975, which states that it is unlawful for an employer to fire an employee “solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits.” Bond filed his claim in Chambers County, and Scott Bridge moved for a change of venue to Lee County. The trial judge denied the motion. Scott Bridge seeks a writ of mandamus directing the trial court to vacate the order denying the change of venue and to transfer the ease to Lee County.

Scott Bridge argues that the case should be transferred to Lee County because, it says, § 6-3-7, Ala.Code 1975, states that, as to a foreign corporation or a domestic corporation, venue is proper:

“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred ...; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

It is uncontested that Scott Bridge’s principal place of business is in Lee County, and that Bond’s discharge took place in Lee County. Bond lives in Chambers County, and he argues that venue in Chambers County is proper under § 6-3-7(a)(3), Ala.Code 1975, because, he argues, Scott Bridge does business by agent in Chambers County — it purchases materials from a Chambers County business. Scott Bridge argues that it does not do business by agent in Chambers County, and, thus, that the only proper venue for the action is Lee County.

A petition for the writ of mandamus is the proper method by which to seek review of a denial of a motion for a change of venue. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000). “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). This Court reviews a petition for a writ of mandamus challenging a ruling on venue under an abuse-of-discretion standard. Id.

“The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.”

Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).

Scott Bridge bears the burden of proving that venue in Chambers County is improper. If Scott Bridge’s activities in Chambers County are sufficient to qualify as “doing business by agent” in that county under § 6-3-7(a)(3), Ala.Code 1975, then venue is proper in Chambers County, and the writ of mandamus directing a transfer of the case to Lee County should not issue. If those activities are not sufficient, however, the writ of mandamus directing the trial court to transfer the case to Lee County should issue.

“A corporation ‘does business’ in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created. Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984); Ex parte Southtrust Bank of Tuskegee, 469 So.2d 103 (Ala.1985).” Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356, 1358 (Ala.1993). This Court has made the following distinction between those corporate business functions for which a corporation was created and the exercise of corporate powers incidental to those corporate business functions:

“It should be noted that not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute. We recognized in International Cotton-Seed Oil Co. [v. Wheelock], 124 Ala. [367,] at 370-371, 27 So. [517,] at 518 [(1899)], that in applying the test for doing business ‘it may not always be easy to distinguish between acts done in the exercise of corporate functions and those done merely within corporate powers.’ ”

Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 790 (Ala.1989).

Scott Bridge notes that it is in the business of constructing bridges and it argues that because it has not built a bridge in Chambers County, it has not “done business by agent” there. The business of Scott Bridge, however, should not be considered so narrowly. To fulfill its principal corporate function of building bridges, Scott Bridge must purchase parts, tools, and equipment with which to perform that principal corporate function. Bond asserts, and Scott Bridge does not refute, that Scott Bridge buys from businesses located in Chambers County supplies that cost in excess of $50,000 a year.

The Court of Civil Appeals, using this Court’s guidance as to what constitutes sufficient evidence of “doing business,” discussed a business relationship between a company and its parts supplier as follows:

“Past ‘isolated transactions’ are inconclusive in establishing that a corporation ‘does business’ in a particular county for purposes of venue. Ex parte Harrington Manufacturing Co., 414 So.2d 74 (Ala.1982). All that is required is that GTE ‘performed some of the business functions for which it was created in the county with some degree of regularity.’ Ex parte Jim Skinner Ford, Inc., [435 So.2d 1235, 1237 (Ala.1983) ].
“Webco, a tool and die manufacturer, has done business with GTE for over twelve years, making piece parts inter alia for GTE. During this twelve-year period, agents of GTE visited Webco’s plant at least twice a month where they would work with Webco’s employees, assist Webco’s engineers and discuss the business relationship between Webco and GTE....
“... The president and general manager of Webco testified in deposition . that over $2,600,000 worth of such business was done between Webco and GTE. In light of such evidence the trial court was not unreasonable in finding that GTE did business in Etowah County.”

Ex parte GTE Automatic Elec., Inc., 448 So.2d 385, 387 (Ala.Civ.App.1984).

While this Court has not been provided with as detailed a description of Scott Bridge’s interactions with its parts supplier in Chambers County as the Court of Civil Appeals was provided with of GTE’s relationship with its parts supplier in Ex parte GTE Automatic Electric, Inc., the information that this Court does have regarding Scott Bridge’s interactions with its supplier in Chambers County is that Scott Bridge “purchased handrail pipe, handrail posts, protection anchors, supports, and shoes which are used in Scott Bridge’s business [of bridge building].” (Trial court’s order denying the motion for a change of venue.) Scott Bridge could presumably have purchased these materials elsewhere, and thus fulfilled its corporate purpose entirely outside of Chambers County, but spending more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute “doing business” in Chambers County.

Scott Bridge’s purchases of bridge parts from suppliers in Chambers County can be distinguished from other, more tangential relationships that this Court has deemed insufficient to constitute “doing business.” Specifically, this Court held in Ex parte Parsons & Whittemore Alabama Pine Construction Corp., 658 So.2d 414 (Ala.1995), and in Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984), that retaining the services of an attorney in the forum county on a case-by-case basis did not constitute “doing business” in that county, where the businesses of the companies were construction and real estate financing, respectively. Hiring an attorney was tangential to the companies’ fulfillment of their primary business functions. Scott Bridge’s primary business function of building bridges, however, immediately and directly depends upon the transactions it has with its Chambers County suppliers.

Scott Bridge does not argue that it would be prejudiced if it were forced to litigate in Chambers County. Chambers County and Lee County are contiguous counties, and the additional hardship created by traveling to the neighboring county is not substantial. We therefore hold that the trial court did not abuse its discretion' in denying the motion for a change of venue from Chambers County to Lee County, because Scott Bridge did not carry its burden of proving that venue in Chambers County was improper.

PETITION DENIED.

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

WOODALL and STUART, JJ., dissent.

STUART, Justice

(dissenting).

-I respectfully dissent. I do not agree that purchasing materials in a county, regardless of the dollar amount of the materials purchased, constitutes “doing business by agent” in that county for purposes of determining proper venue under § 6-3-7(a)(3), Ala.Code 1975. I would grant the petition for the writ of mandamus.


author: LYONS, Justice.

text:
    Nathan FLIPPO v. Brandy Lynn POPE. Eric Exum v. Brandy Lynn Pope.
    1010104 and 1010792.
    Supreme Court of Alabama.
    April 26, 2002.
    Herman Cobb and Joseph D. Talmadge of Cobb, Shealy & Crum, P.A., Dothan, for appellant Nathan Flippo.
    Henry B. Steagall III, Ozark, for appellant Eric Exum.
    John Emory Waddell, Dothan; and Ron Storey, Dotahn, for appellee.
   LYONS, Justice.

Brandy Lynn Pope was injured on November 29, 1997, when an automobile in which she was a passenger collided with another automobile. Nathan Flippo was driving the automobile in which Pope was riding. Eric Exum was driving another vehicle in the area at the time of the collision; Pope alleges that Exum caused the accident. At the time of the accident, Pope was a minor. Her father, Michael Cline, filed an action on Pope’s behalf pursuant to Rule 17(c), Ala. R. Civ. P., styled “Michael Cline, on behalf of himself and as father and next friend of Brandy Lynn Pope, a minor, v. Nathan Flippo, Eric Exum, American States Insurance Company, [and fictitiously named defendants].” Cline asserted claims of negligence and wantonness against Flippo and Exum. He also demanded uninsured/underinsured motorist benefits from American States Insurance Company.

On June 11,1998, while Cline’s action on her behalf was pending, Pope reached the age of majority in Alabama, 19 years. See § 26-1-1, Ala.Code 1975. Thereafter, on July 1, 1998, the trial court granted a motion filed by Cline’s attorneys requesting permission to withdraw from the case. At that time, the trial court entered a handwritten notation on the case action summary that stated: “Plaintiff has 45 days to secure the services of an attorney or case will be dismissed for lack of prosecution.” The case action summary states that Cline and Pope were notified of the order, but the case action summary does not indicate that Cline or Pope responded to the order. On September 22, 1998, on motion of American States, the trial court dismissed the action with prejudice for failure to prosecute. The case action summary states that Cline was notified of that order, at the address listed on the case action summary as Cline’s mailing address — a street address in Louisville, Kentucky.

On November 24, 1999, Pope filed an action in her own name against Flippo, Exum, and American States. Pope’s 1999 action contained identical claims for relief against the same parties as those asserted in Cline’s 1998 action. Flippo filed a motion for a summary, judgment and Exum filed a motion to dismiss, both raising the doctrine of res judicata as a defense. Pope responded to those motions with an affidavit in which she testified that she was not notified of the court’s order requiring her to obtain an attorney within 45 days after her father’s attorneys were allowed to withdraw or of the subsequent order of dismissal. She further testified that she learned that the 1998 action had been dismissed when she sought advice from her present attorney. The trial court did not rule on either of those motions.

Exum then filed a motion for a summary judgment and Flippo filed a second motion for a summary judgment, both arguing that the 1999 action was barred by the doctrine of res judicata. Flippo also argued that Pope, as a guest in the vehicle he was driving, could not recover against him for negligence and that, under the undisputed facts of the case, she could not recover against him for wantonness. Pope never responded to those motions for a summary judgment, relying instead on the affidavit she had filed previously in the case. The trial court denied Flippo’s and Exum’s motions for summary judgment. It later amended its order denying the motions to include the statement required for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P. Flippo and Exum filed timely petitions for permission to appeal from the denial of their summary-judgment motions.

This Court granted Flippo and Exum permission to appeal, allowing the parties to address the following issue:

“Whether the doctrine of res judicata operates to bar an action filed by an adult plaintiff to recover for injuries sustained during an incident which occurred during her minority, where that same incident also formed the basis of a previous lawsuit filed on her behalf by her next friend against the same defendants which was dismissed for lack of prosecution after she reached the age of majority.”

For the reasons set forth below, we conclude that, under the circumstances presented in these cases, the doctrine of res judicata does not bar the later-filed action, and we affirm the trial court’s order denying Flippo’s and Exum’s summary-judgment motions.

The threshold issue is whether the next friend’s failure to prosecute is chargeable to a minor who reached the age of majority before the next friend committed the acts relied upon by the trial court as the basis for the failure to prosecute. In Maryland Casualty Co. v. Owens, 261 Ala. 446, 450, 74 So.2d 608, 611 (1954), Justice Merrill observed, in dicta: “For sound reasons and under numerous rulings it is well settled that the authority of a guardian ad litem of an infant defendant to represent him in the conduct of a cause expires with the minority of the infant, 43 C.J.S., Infants, § 113.” (Emphasis added; some citations omitted.)

Flippo and Exum maintain that Pope’s reaching the age of majority did not abate the 1998 action. See Johnson v. Alexander, 66 Okla. 128, 130, 167 P. 989, 991 (1917), where the Supreme Court of Oklahoma stated:

“The rule seems to be well established that where an action is commenced by a minor, by his next friend or guardian, and the minor reaches his majority during the pendency of the cause, the cause does not abate, and the arriving at majority by the minor is not grounds for dismissal of said cause. Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N.W. 396; 22 Cyc. 671.
“The proper procedure seems to be in the case where a minor becomes of age during the pendency of the cause to strike the name of the guardian or next friend from the record and leave the cause standing in the name of the minor, but under the above authorities if this is not done it is a mere irregularity which does not affect the substantial rights of the other party, and therefore not prejudicial error. No doubt, where it is made to affirmatively appear to the court that it would materially affect the substantial rights of the defendants to allow the cause to proceed by the next friend after the minor, plaintiff, had reached his majority, it would be the duty of the court to require the plaintiff to continue the prosecution of the suit in his own name.”

(Emphasis added.) See also McCarthy v. Anable, 169 Misc. 595, 7 N.Y.S.2d 887 (1938), Shroyer v. Shroyer, 101 N.E.2d 298 (Ohio App.1950). However, these authorities do not deal with the situation presented here, where there is no indication that Pope ratified Cline’s continued pursuit of the action after she had reached the age of majority.

No Alabama authority resolves this question. While not directly on point, the discussion in Bell v. Burkhalter, 183 Ala. 527, 62 So. 786 (1913), is helpful. There, this Court stated:

“Where an action is instituted in the name of an infant, without the intervention of a guardian or next Mend, and pending the litigation the infant attains bis majority and thereafter manifests by his conduct in the cause, even through an attorney, an adoption or ratification of the action so erroneously commenced, the subsequent objection that he was an infant when the action was instituted cannot avail the objector. In such circumstances the objector must allege and prove, to abate the action so erroneously originally commenced, that the party, subject to disability when the action was commenced, has not adopted and ratified such commencement of the action.”

183 Ala. at 529-30, 62 So. at 786 (emphasis on “not” original; other emphasis added). While Bell dealt with an action brought initially in the name of the minor, the rationale in Bell supports the importance of the minor’s adoption and ratification of the action after he or she reaches the age of majority. A similar concern for the need for the minor’s ratification in this type of situation is evident in Germain v. Sheehan, 25 Minn. 338, 339 (1879), where the Supreme Court of Minnesota held:

“The plaintiff, being an infant when the action was commenced, should have appeared by guardian, and his appearance by attorney was erroneous. But if, during the pendency of his action, an infant plaintiff reaches majority, it is competent for him to adopt an action thus erroneously commenced, and to ratify what has been done therein; and thereafter there is no good reason why the action should not proceed with the same effect as if it had been properly commenced. This adoption and ratification may be inferred from any conduct on his part evincing his recognition of the action as prosecuted for him, as, for instance, by knowingly suffering it to be carried on in his name, without repudiating it.”

(Emphasis added; citations omitted.)

We have found little authority on the question whether a minor who attains the age of majority after an action is commenced by the minor’s next friend during the minor’s minority must ratify the action before the judgment in the action binds the former minor. We find Kaplan v. Kaplan, 373 S.W.2d 271 (Tex.Civ.App.1963), persuasive. It harmonizes the rule enunciated in Maryland Casualty Co. v. Owens, supra—that the authority of the next friend expires with the minority of the infant — with the rule that the minor’s attaining the age of majority does not abate the action, and then incorporates a requirement of ratification. The court in Kaplan stated:

“It is a rule of general application that one person may not bring suit in the right of another.
“ ‘... [T]he authority of a next friend of an infant to represent him in the conduct of a cause expires with the minority of the infant.... In such case the action does not abate, but may proceed in the name of the infant if he so elects. In such case, however, the record should show that the suit is prosecuted by the plaintiff himself, and it is proper to strike out the name of the next friend. ...’
“Here there is nothing to show that Barbara [the minor who came of age] elected to proceed with this suit after reaching the age of twenty-one.
“It is our opinion that Barbara Kaplan was not a party to this suit in the trial court.”

373 S.W.2d at 275 (emphasis added; citations omitted). In Shuttlesworth v. Hughey, 40 S.C.L. (6 Rich.) 329, 330-31 (1853), the court spoke to the attainment of age as giving the minor a right of election, stating:

“If an infant plaintiff, pending the suit, shall attain full age, he is generally permitted to stop the proceedings whether he is sole or co-plaintiff with others. The action does not abate when he is of age, and he can elect, whether he will proceed or not. If he shall continue to prosecute his action, the subsequent proceedings may be carried on in his own name; and no amendment of his declaration is necessary for that purpose. A suggestion on the record, that he has attained to full age, is sufficient.”

(Emphasis added.)

We therefore hold that, although the authority of the next friend expires when the minor attains the age of majority, that event does not abate an action commenced by the next friend so long as the former minor elects to proceed. Such an election may be inferred from any conduct on the former minor’s part evincing recognition of subsequent prosecution of the action for the former minor’s benefit, such as, for instance, knowingly allowing the action to be carried on in the former minor’s name or in the name of the next friend. Better practice calls for a suggestion on the record that the minor has attained the age of majority and the deletion of the next friend as a party. However, inattention to this detail does not affect the validity of any judgment where the former minor’s election to proceed with the action can be inferred.

Under the facts here presented, there is no evidence indicating that Pope had notice that her father’s attorneys had withdrawn from the case, that the trial court had imposed a deadline for securing new counsel, or that the trial court had dismissed the case until after the trial court had entered the order of dismissal. The case action summary reflects that Pope and Cline were notified of the attorneys’ withdrawal and the deadline for securing new counsel and that Cline was notified that the case had been dismissed, but those notices were sent to Cline’s Kentucky address. The record contains copies of letters from Cline’s attorneys addressed to Cline and Pope advising them of the attorneys’ withdrawal, but again, those letters were sent to Cline’s Kentucky address. Pope testified that when these notices and letters were sent she was living with her mother in the Dothan area, that she did not receive any of the notices or letters, and that her father did not tell her that he had received them. For all that appeared, as far as Pope knew, the action was dormant during the few months these significant events that would ultimately lead to the dismissal of the action with prejudice were occurring. Pope did testify that after the action was dismissed, a secretary at the law firm that had represented her father told her that her case was closed, but she explained that she understood that to mean only that the firm was no longer representing her, not that the case had been dismissed.

Because there is no basis in this record from which we can reasonably infer that Pope, after coming of age, ratified the continued pursuit of the action by Cline on her behalf, the dismissal of the 1998 action with prejudice after Pope attained the age of majority is not binding upon her. Flip-po and Exum’s argument that Pope’s 1999 action is barred by the doctrine of res judicata is therefore without merit, because there is no former adjudication that is binding upon Pope.

We do not reach the result reached in McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1918), relied upon by both Pope and Flippo and Exum, where this Court rejected the statute-of-limitations defense asserted against a claim by an adult for injuries sustained while she was a minor. A previous action had been commenced on the minor’s behalf by a next Mend; however, it was dismissed because the next Mend had failed to respond to interrogatories. In McLaughlin, the dereliction of duty on the part of the next friend occurred during the minority of the party for whose benefit the action had been commenced; that case is therefore not on point. Our disposition also makes it unnecessary for us to reach the other issues Pope asserts in support of the trial court’s denial of the summary-judgment motions.

We conclude that the trial court properly denied the motions for summary judgment filed by Flippo and Exum, and we affirm the order denying those motions.

AFFIRMED.

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

      . The trial court dismissed American States as a defendant in this case pursuant to a joint stipulation for dismissal filed by Pope and American States. American States is not a party to this appeal.


author: HARWOOD, Justice.

text:
    CLARKE-MOBILE COUNTIES GAS DISTRICT v. PRIOR ENERGY CORPORATION.
    1002019.
    Supreme Court of Alabama.
    May 3, 2002.
    M. Roland Nachman, Jr., and Walter R. Byars of Steiner, Crum & Baker, Montgomery; Joseph C. McCorquodale III and Christopher A. Bailey of McCorquodale & McCorquodale, Jackson; and Stephen W. Drinkard of Beasley, Allen, Crow, Meth-vin, Portis & Miles, Montgomery, for appellant.
    David Michael Higgins and Edward P. Turner, Jr., of Turner, Onderdonk, Kim-brough & Howell, P.A., Chatom; and William F. Blair of Blair & Bondurant, Jackson, Mississippi, for appellee.
   HARWOOD, Justice.

Clarke-Mobile Counties Gas District (hereinafter referred to as “the Gas District”) appeals the trial court’s partial summary judgment for Prior Energy Corporation (hereinafter referred to as “Prior Energy”). We dismiss the appeal.

On March 24, 1997, in the Clarke Circuit Court, the Gas District sued Prior Energy; Fred 0. Roe, Jr.; Michael A. Coulter; G.M. Coulter; M.A. Abernethy; the estate of Robert M. Saunders, deceased; Union Gas Company of Alabama, Inc.; and Technical Specialties, Inc. (hereinafter collectively referred to as “the defendants”). The Gas District sought to recover compensatory and punitive damages on claims of conspiracy, breach of contract, breach of fiduciary duty, fraud, intentional interference with business relationships, and usurpation of corporate opportunities, in relation to its negotiations and transactions with Prior Energy, including sales, swaps, and purchases of natural gas. All of the allegations contained in the Gas District’s complaint pertained to Prior Energy and Roe, the president of Prior Energy, with the exception of the allegation of breach of contract, which involved a management contract that the Gas District alleged existed between it and Union Gas Company of Alabama, Inc. On April 17, 1997, Prior Energy sued the Gas District in the Mobile Circuit Court, alleging that a “Firm Gas Sale Contract” (hereinafter referred to as “the contract”) existed between it and the Gas District that included subsequent “confirmations” providing for the delivery and purchase of natural gas, which Prior Energy alleged were supplements to the contract.

On April 29, 1997, the Gas District amended its complaint to state that Prior Energy claimed that the contract existed. The Gas District disputed the existence of the contract and sought a judgment from the trial court declaring that “the alleged contract and confirmations ... be of no force and effect and that there are no contractual relations in existence between [the Gas District] and [Prior Energy].”

On April 30, 1997, Prior Energy filed a motion to dismiss or for a more definite statement, with a supporting brief that had attached as exhibits the contract and three confirmations. On May 12, 1997, Prior Energy filed a motion to dismiss or to strike the Gas District’s amendment to its complaint on the grounds that Prior Energy had previously commenced litigation on the contract when it filed its complaint against the Gas District in the Mobile Circuit Court on April 17, 1997. Prior Energy contended that the Gas District’s amendment was “asserted solely in an effort to effect a dismissal or transfer of those claims asserted before the Mobile County Circuit Court.” Prior Energy attached as an exhibit a copy of the complaint it had filed in the Mobile Circuit Court.

On July 15,1997, the trial court conducted a hearing on Prior Energy’s motions to dismiss, motion for a more definite statement, and motion to strike. On July 30, 1997, the Mobile Circuit Court dismissed Prior Energy’s complaint in an order that determined that Prior Energy’s complaint was a compulsory counterclaim to the complaint the Gas District had filed in the Clarke Circuit Court. On September 5, 1997, the Clarke Circuit Court entered an order denying Prior Energy’s motions to dismiss and granting in part and denying in part its motion for a more definite statement. The trial court ordered the Gas District to amend its complaint to state certain information, as that information related to its allegations of fraud, with more particularity. On October 3, 1997, the Gas District filed a second amended complaint to comply with the trial court’s order.

The Gas District’s amended complaint, in pertinent part, alleged that the defendants, including Prior Energy, had “failed to disclose material facts to and/or suppressed material facts” (count four), and had made representations that “were false and [Prior Energy had] made them willfully to induce the [Gas District] to act, or [that] were fraudulently or recklessly represented as true and intended to deceive the [Gas District]” (count five), in regard to the following items:

“A. Exorbitant profits made for [Pri- or Energy] and/or ROE through the negotiation for supply of gas and the cost thereof, gas purchases, gas sales and swaps of gas on behalf of [the Gas District], all to the detriment of [the Gas District]; and/or
“B. Gas purchase and sale schemes entered into with [the Gas District] and others to the detriment of [the Gas District]; and/or
“C. Gas sales on [the Gas District’s] lines for transportation and delivery of gas at a profit to [Prior Energy] and/or ROE; and/or
“F. The cost of gas to [Prior Energy] and/or ROE; and/or
“G. Exorbitant profits made by [Pri- or Energy] and/or ROE; and/or
“H. The price of gas to [the Gas District]; and/or
“I. The sale of gas from [the Gas District] to [Prior Energy] and/or ROE; and/or
“J. The fixed price of gas that [the Gas District] had to pay to [Prior Energy] and/or ROE for its gas supply; and/or
“K. Manipulation of the price of gas that [the Gas District] had to pay to [Prior Energy] and/or ROE, to enhance the profits of [Prior Energy] and/or ROE, all to the detriment of [the Gas District] .... ”

On November 10, 1997, Prior Energy filed an answer and counterclaims. The counterclaims, in part, sought a judgment from the trial court declaring (1) that the contract and confirmations were “valid, existing, and contractual agreements between the parties subject to termination only in accordance with the terms thereof,” and (2) that Prior Energy was entitled to payment for the gas it had delivered to the Gas District. The counterclaims also included claims that the Gas District had breached the contract and that Prior Energy was due certain moneys on theories of account, open account, and goods sold and delivered. On December 3, 1997, the Gas District filed a motion to dismiss Prior Energy’s counterclaims. On January 27, 1998, the trial court conducted a hearing on the Gas District’s motion to dismiss; it denied the motion on March 27, 1998. On July 7, 1998, the Gas District filed an answer to Prior Energy’s counterclaims. On March 2, 1999, the Gas District filed a third amendment to its complaint to add ICC Industries, Inc., and Prior Intrastate Corporation as defendants.

On September 29, 1999, Prior Energy filed a motion for a partial summary judgment; the motion contained argument and a narrative summary of undisputed facts and was supported by attached exhibits. On October 10, 2000, the Gas District filed a statement of undisputed facts and a statement in opposition to Prior Energy’s motion for a partial summary judgment with an attached exhibit. On October 18, 2000, Prior Energy filed a response in opposition to the Gas District’s statement of undisputed facts. On October 19, 2000, the trial court conducted a hearing on Prior Energy’s motion for a partial summary judgment. On January 16, 2001, it entered a summary judgment for Prior Energy on its counterclaims, finding that the Gas District owed Prior Energy $1,225,290.97 under the contract and $574,400.41 in interest. That order further certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

The trial court’s January 16, 2001, order dealt with Prior Energy’s counterclaims in isolation, failing to consider the fraud claims that had been asserted by the Gas District in its complaint. That order stated, in pertinent part:

“CONTENTIONS OF THE PARTIES
“18. [Prior Energy ]: [Prior Energy] contends that the natural gas it delivered to [the Gas District] was delivered pursuant to the Contract under written purchase confirmations which incorporated the Contract by reference. [Prior Energy] contends that these confirmations and the invoices that followed documented all material terms of the parties’ agreement and satisfied the formal requirements for such sales of goods under the [Uniform Commercial Code (‘UCC’)]. Ala. Code § 7-2-201 (1975). [Prior Energy] contends that it is due payment for the gas delivered to [the Gas District] at the contract price as contained in the written confirmatory memoranda attached to its motion as collective Exhibit ‘C-5.’ [Prior Energy’s] contention is based not only upon the failure of [the Gas District] to object to the confirmatory memoranda which documented the terms of the deliveries to [the Gas District] but also upon the provisions of the [UCC] which dispense with the need for a writing of any kind between merchants with regard to a transaction in goods which have been received and accepted.
“[The Gas District]: [The Gas District] contends that there is no executed gas sale agreement in effect controlling the delivery of the volumes of gas because a representative of [the Gas District] did not sign the 1994 Contract. Further, [the Gas District] contends that the filing of this lawsuit on March 24, 1997, in objection to the invoices sent by [Prior Energy], satisfied any obligation it had to object to the price terms for the volumes of natural gas delivered by [Prior Energy], Also, [the Gas District] contends that any obligation it had to object to the written purchase confirmations could not have been performed because it did not receive the written purchase confirmations until late March 1997. [The Gas District] does not dispute that it received 967,944 MMBtu’s [million British Thermal Units] of gas for which it has not paid [Prior Energy] but contends that the price for the unpaid volumes of gas should be a ‘reasonable price’ as determined by a trier of fact and not a confirmation or contract price as [Prior Energy] contends.
“CONCLUSIONS OF LAW
“19. The Court finds that as a matter of law the sale of natural gas is a transaction in goods as defined in Ala. Code § 7-2-105 (1975). The Court further finds that [Prior Energy] and [the Gas District] are and were ‘merchants’ as that term is defined in Ala. Code § 7-2-104(1) (1975). The Court finds that the [UCC] as contained within the Ala. Code § 7-2-101, et seq. (1975), provides the substantive law controlling the subject matter of this motion.
“20. As there is no question about the quality or conformity of the natural gas delivered in this case by [Prior Energy] to [the Gas District] and no question that these goods were delivered by [Prior Energy] and received and accepted by [the Gas District] and not rejected but sold to [the Gas District’s] customers through its system, the law requires that [the Gas District] must pay for the natural gas delivered at the contract rate. Ala.Code § 7-2-607(1) (1975).
“21. Although all of the confirmations at issue in this Motion for Summary Judgment were received by [the Gas District] since [the Gas District] produced copies of same from its files, only one of those confirmations is signed by a representative of [the Gas District], The only ‘objection’ to these confirmations by [the Gas District] was made by the filing of the current law suit after [the Gas District’s] receipt and acceptance of the goods here involved. Further still, Ala.Code § 7-2-201 (1975) and its commentary provide that the performance under a contract for the sale of goods (such as the delivery of conforming goods) is a substitute for any written documentation and that acceptance is a validation of the contract under which the goods have been accepted. Indeed, the official commentary under this code section describes the receipt and acceptance of goods as an ‘unambiguous overt admission’ by the parties that a contract actually exists. The Court finds that a defense based entirely upon questions of formality with regard to the execution of confirmations is not a defense to the failure to pay at the contract rate for goods that had been accepted and resold to others as is the case here.
“22. The Court finds that although the February 1, 1994, Firm Gas Sale Contract (the ‘Contract’) is not signed by [the Gas District], the parties each executed sufficient written confirmations that specifically reference the Contract on repeated and numerous occasions to evidence their complete assent, ratification and agreement to the terms of the Contract as written. Therefore, the Court finds that the Contract is a legally binding contract between the parties.
“23. It is undisputed that [the Gas District’s] General Manager actually signed and returned one confirmation dated January 23, 1997, which provided for gas deliveries from February 1,1997, through September 30, 1997. That confirmation stated that the price [the Gas District] agreed to pay was at least $2.46 per MMBtu. [Prior Energy] contends that it is due payment for the gas under the unsigned confirmations at prices which range from $3.94 per MMBtu down to $2.46 per MMBtu. The Court finds there is a dispute of fact as to when these unsigned confirmations were received by [the Gas District] and thus when the time frame to object arose. However, the Court finds that no dispute of fact exists as to the $2.46 per MMBtu contract price since both parties signed that confirmation and it is the lowest price of the confirmations for February, 1997. Accordingly, the Court finds that all unpaid gas delivered by [Prior Energy] to [the Gas District] shall be priced at the contract rate of $2.46 per MMBtu unless [Prior Energy’s] unsigned confirmation is at a lesser contract price in which case the Court finds that the lesser contract price shall control for the volume of gas covered by that specific confirmation as set forth in Exhibit ‘C-5’ to [Prior Energy’s] motion.”

We also note that the general manager referred to in the trial court’s order is Michael Coulter, a defendant in this action, as to whom the Gas District has made allegations of fraud as well.

On February 8, 2001, the Gas District filed a motion to alter, amend, or vacate the trial court’s judgment, with an attached supporting brief. On August 2, 2001, after conducting a hearing on the Gas District’s postjudgment motion, the trial court entered an order that stated, in pertinent part:

“Presently before the Court is [the Gas District’s] ‘Motion to Alter, Amend, or Vacate Final Judgment’ entered in favor of Prior Energy ... as to its motion for partial summary judgment. [The Gas District] maintains that the Court’s order should be vacated on several grounds. [The Gas District] maintains that the Court’s order allows Prior Energy, whom they claimed committed fraud, etc., to benefit from this fraud to the detriment of [the Gas District].... Additionally, [the Gas District] maintains that Alabama case law prohibits partial summary judgment in this matter because such a holding would lead to inconsistent verdicts and improper certification under Rule 54(b) of the Alabama Rules of Civil Procedure....
“ORDER OF ADJUDICATION
“It should be noted that this Court’s order granting partial summary judgment to Prior Energy accomplished exactly that — a partial summary judgment. The fraud and conspiracy claims of [the Gas District] are still ripe for adjudication. The counterclaims maintained by Prior Energy are distinct from [the Gas District’s] tort action. This Court is satisfied that the proper method for this matter is to hold, under Section 7-2-601(1), Code of Alabama, 1975, that [the Gas District] must pay for the gas it received, accepted, and purchased under the clear and certain provisions of the [Uniform Commercial Code (‘UCC’)]. As to the tort theories submitted by [the Gas District], a jury will need to decide these issues. This Court is satisfied that a Rule 54(b) certification is proper in this case as, similar to Pate v. Merchants National Bank of Mobile, 409 So.2d 797 (Ala.1982), there are two distinct classes of claims: (1) counterclaims governed by the [UCC], and (2) tort claims asserted by [the Gas District]. These two sets of claims are not ‘so closely intertwined that separate adjudications would pose an unreasonable risk of inconsistent results.’ In fact, this case and this Court’s ruling presents the very facts that a Rule 54(b) certification was intended to cover. The claims under the UCC are not factually in dispute and the law is clear that a partial summary judgment is appropriate. If a jury finds fault with Prior Energy on various tort claims, there will be ample room for them to assess the appropriate damages at that time.”

(Emphasis added.) On August 16, 2001, the Gas District filed a notice of appeal to this Court.

On appeal, the Gas District argues: (1) that the trial court erred in certifying its partial summary judgment for Prior Energy as final under Rule 54(b), Ala. R. Civ. P., because, it says, the issues presented in its claims and in Prior Energy’s counterclaims are “so closely intertwined that a separate adjudication would pose not only an unreasonable risk of inconsistent results, but such an improvident result would be inevitable”; and, in what it describes as a “subsidiary” argument, (2) that the trial court erred in entering the partial summary judgment because, it says, there existed genuine issues of material fact.

In relation to its argument that the issues presented in its claims are intertwined with Prior Energy’s counterclaims to such an extent that the certification of the summary judgment on the counterclaims as final pursuant to Rule 54(b) will necessarily lead to inconsistent results, the Gas District relies on Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477 (Ala.1987), and Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987). Prior Energy argues in rebuttal that the trial court properly relied on Pate v. Merchants National Bank of Mobile, 409 So.2d 797 (Ala.1982). Prior Energy asserts in its brief to this Court that “[t]he fact that claims arise out of the same set of operative facts does not prevent them from being treated as multiple and subject to separate adjudication,” and that its counterclaims alleging violations of the Uniform Commercial Code (“UCC”) were separate and distinct from the Gas District’s tort claims. It further asserts that the trial court thoroughly considered the possibility of inconsistent results in entering a summary judgment on its counterclaims. In its reply brief, the Gas District states:

“[The Gas District’s] claim for fraud and misconduct arise out of the same transactions as [Prior Energy’s] counterclaim for recovery of the contract price of the natural gas, although [the Gas District’s] claims cover a much more extensive period of time. Until [the Gas District’s] claims are adjudicated, it is impossible to establish any liability or damages on [Prior Energy’s] counterelaim[s] against [the Gas District].”

In Pate v. Merchants National Bank of Mobile, supra, Merchants National Bank sued the Pate Foundation and individual guarantors to recover on a promissory note. Merchants National thereafter filed a motion for a summary judgment on its complaint. In an amended answer to Merchant National’s complaint, Cornelia Pate, one of the individual guarantors, asserted a counterclaim alleging that Merchants National had wrongfully converted funds in a checking account belonging to her. She alleged that the wrongful conversion had taken place in 1979; the promissory note at issue was executed in 1980. The trial court entered a summary judgment for Merchants National and certified it as final pursuant to Rule 54(b), but reserved ruling on the counterclaim Pate had asserted for wrongful conversion. Pate appealed, arguing that the trial court could not certify its judgment as final pursuant to Rule 54(b) while leaving her counterclaim pending. This Court, in determining that the trial court’s judgment was due to be affirmed, stated:

“[Rule 54(b)] and its comments clearly provide that under the appropriate facts partial summary judgment on fewer than all claims involved can be appropriate. See Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). The fact that the claims may have arisen out of the same set of facts does not prevent them from being multiple claims. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975).
“In a case where the complaint asked that certain land be sold, the defendants answered and filed a counterclaim seeking an accounting, this Court stated:
“ ‘This court is of the opinion that in this case the complaint, asking for the sale of the land, and the counterclaim, asking for an accounting, presented “more than one claim for relief,” either of which could have been separately enforced. This is precisely the type of situation Rule 54(b) was intended to cover. The fact that the claims may have arisen out of the same set of facts does not mean that they are not multiple claims.’
“Cates v. Bush, 293 Ala. 535, 540, 307 So.2d 6 (1975).
“The claim and counterclaim in the case at bar clearly presented more than one claim for relief. Merchants National’s claim under the note constituted one claim and Mrs. Pate’s claim for conversion of the funds in her checking account gave rise to another claim. Either of these claims could have been separately enforced. This case too is an example of the type situation Rule 54(b) was intended to cover.”

409 So.2d at 799-800.

The facts of Pate clearly represent the type of situation Rule 54(b) was intended to cover. There was little, if any, factual overlap between the claim and the counterclaim asserted in Pate, which bolsters the conclusion that they were separate claims. Merchants National asserted a claim based upon a promissory note executed in 1980, while Pate’s counterclaim for wrongful conversion was based upon events alleged to have occurred in 1979. However, Pate does not address the “intertwining-of-claims” concept; it instead relies only upon the settled proposition that multiple claims may arise out of the same set of operative facts, citing and quoting from Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Thus, the trial court’s reliance on Pate to determine that the Gas District’s claims and Prior Energy’s counterclaims were not “so closely intertwined that separate adjudications would pose an unreasonable risk of inconsistent results” was not entirely warranted.

In cases more factually analogous to this one, where the intertwining-of-claims concept was involved, this Court has set aside Rule 54(b) certifications. In Branch v. SouthTrust Bank of Dothan, N.A, supra, SouthTrust ■ Bank sued A.G. Branch and Clint Owens, alleging they had defaulted on a promissory note. After the trial court entered a default judgment against Owens, Branch filed an answer to South-Trust’s complaint and a cross-claim against Owens, and SouthTrust filed a motion for a summary judgment against Branch. Branch then filed an amended answer that contained a counterclaim alleging that he had relied upon a fraudulent representation of an agent of SouthTrust when he executed the promissory note. SouthTrust thereafter filed an amended motion for a summary judgment on both its claim and Branch’s counterclaim. The trial court entered a summary judgment for SouthTrust on its claim, but denied it a summary judgment on Branch’s counterclaim. The trial court subsequently certified its partial summary judgment for SouthTrust as final pursuant to Rule 54(b). On appeal, Branch argued that the trial court had abused its discretion in certifying the partial summary judgment as final.

After discussing Pate and how the facts of that case presented the situation that Rule 54(b) was intended to cover, this Court, in setting aside the Rule 54(b) certification and remanding the case, stated:

“The facts of this case, however, do not present the type situation that Rule 54(b) was intended to cover. The counterclaim asserted by Branch is based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.”

514 So.2d at 1374. Similarly, in this case, the Gas District claims that it became liable under the contract as a result of the fraudulent conduct of the defendants, including Prior Energy.

In Gray v. Central Bank of Tuscaloosa, supra, Central Bank sued, alleging a default on a promissory note. Frank Gray was a defendant by virtue of his being a guarantor of the note. Only a 1983 agreement signed by Gray was the subject of the appeal before this Court. Gray and another defendant filed an answer that asserted the affirmative defense of fraud; the answer also contained a counterclaim by Gray alleging fraudulent misrepresentation and civil conspiracy against Central Bank and a bank officer, as an agent of the bank. Central Bank thereafter filed a motion for a summary judgment on both its complaint and Gray’s counterclaim. The trial court entered a summary judgment for the bank on Gray’s counterclaim, but left the bank’s claim on the promissory note pending. Upon motion of Central Bank, the trial court certified the summary judgment on Gray’s counterclaim as final under Rule 54(b). On appeal, this Court, finding that the facts of that case were analogous to those of Branch, supra, determined that Central Bank’s claim on the promissory note and Gray’s counterclaim alleging fraud should not be adjudicated separately “[bjecause the issues in these two claims [were] ‘closely intertwined’ and because a separate adjudication would indeed pose an unreasonable risk of inconsistent results.” 519 So.2d at 479.

We conclude that the trial court erred in relying on Pate, supra, in certifying as final pursuant to Rule 54(b), its summary judgment on Prior Energy’s counterclaims and in determining that the Gas District’s claims, including fraud, were not intertwined with Prior Energy’s counterclaim. In Branch, supra, and Gray, supra, this Court held that opposing claims of breach of contract (specifically default), and fraud, based upon the same set of facts, should not be separately adjudicated. To allow the Gas District’s and Prior Energy’s claims to be separately adjudicated in this case would similarly pose an unreasonable chance of inconsistent results and the trial court’s Rule 54(b) certification on the summary judgment it entered on Prior Energy’s counterclaims is of no effect. The rationale of Branch and Gray is also applicable to this case, inasmuch as the Gas District’s liability on the contract could be affected by its claims that Prior Energy obtained that liability fraudulently. Thus, the trial court should not have ruled on Prior Energy’s UCC counterclaims in isolation and certified that judgment as final, without considering the Gas District’s opposing claims of fraud, which could affect the extent of Prior Energy’s liability under the contract.

Because the trial court’s Rule 54(b) certification was invalid, this appeal is from a nonfinal judgment. Accordingly, the Gas District’s argument that the appeal must be dismissed is correct. Our determination in this regard makes further consideration of the propriety of the trial court’s summary judgment for Prior Energy on its counterclaims unnecessary.

APPEAL DISMISSED.

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

      . Because the Gas District and Prior Energy are the sole parties to this appeal, we discuss only the filings pertinent to those parties. As a result of the multiple parties involved and the extensive discovery that has taken place in this case, large periods of time elapsed between many of the pertinent filings.

      . We also note that the UCC provides that, unless displaced by its particular provisions, principles of fraud and misrepresentation or other invalidating causes supplement its provisions. See § 7-1-103, Ála.Code 1975. It also provides remedies for fraud. See § 7-2-721, Ala.Code 1975.

      . Even if the Gas District had not raised the intertwining-of-claims issue on appeal, it would nevertheless be our duty to dismiss this appeal. "When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)(citing Taylor v. Major Fin. Co., 289 Ala. 458, 268 So.2d 738 (1972); Tarvin v. Tarvin, 266 Ala. 214, 95 So.2d 397 (1957)).