author:
WOODALL, Justice.
      MOORE, Chief Justice

text:
    INDUSTRIAL TECHNOLOGIES, INC., and Richard Hill v. JACOBS BANK. Jacobs Bank v. Industrial Technologies, Inc., and Richard Hill.
    1011966 and 1012064.
    Supreme Court of Alabama.
    April 25, 2003.
    Rehearing Denied Aug. 29, 2003.

      Donald G. Madison, Montgomery; and William H. Webster of Webster & Henry, P.C., Montgomery, for appellants/cross-ap-pellees Industrial Technologies, Inc., and Richard Hill.
    John F. Porter III, Scottsboro, for ap-pellee/cross-appellant Jacobs Bank.
   WOODALL, Justice.

This case involves an appeal by Industrial Technologies, Inc., and Richard Hill, the owner and sole shareholder of that corporation (hereinafter referred to collectively as “Industrial”), and a cross-appeal by Jacobs Bank (“the Bank”), from a judgment entered on a jury verdict awarding Industrial $148,000 in compensatory damages, but vacating the jury’s $250,000 punitive-damages award, in Industrial’s counterclaims against the Bank for conversion of Industrial’s manufacturing equipment. As to the appeal (case no. 1011966), we reverse and remand. As to the cross-appeal (case no. 1012064), we affirm.

This is the not the first time this Court has reviewed some aspect of this litigation. See Ex parte Indus. Techs., Inc., 707 So.2d 234 (Ala.1997). The dispute arose out of a business relationship, formed in 1989, between Industrial and American Detention Products, Inc. (“ADPI”), a manufacturer of “jail bars and prison equipment.” At that time, ADPI was indebted to the Bank. In particular, ADPI had taken out a $200,000 loan secured by a promissory note, giving the Bank a security interest in “[a]ll machinery and equipment of [ADPI’s] business whether [then] existing or [thereafter] acquired.” The security interest was described in identical terms on a UCC financing statement, filed with the secretary of state on March 28, 1988. Filed with the financing statement was “Exhibit B,” purporting to be an “Asset List” of equipment owned by ADPI.

Shortly after ADPI secured the loan, Industrial began transacting business with ADPI. More specifically, Industrial began making loans to ADPI in exchange for a security interest in ADPI’s accounts receivable. Similarly, Industrial leased to ADPI, according to Hill, several items of manufacturing equipment, which, Hill states, Industrial had purchased with its own funds, for use by ADPI on ADPI’s premises. In May 1992, ADPI ceased its business operations and vacated the premises.

On July 9, 1992, the Bank commenced an action against ADPI. The complaint alleged that ADPI was “substantially in default, ... having failed to make the agreed monthly payments” on the loan. The complaint alleged that the Bank had a security interest in the equipment on the asset list filed with the UCC financing statement, and that the equipment was located on ADPI’s premises. It sought, among other things, an order “giv[ing] the [Bank] the possession and title to said property.”

By a letter dated July 13, 1992, counsel for Industrial corresponded with the Bank’s counsel, stating, in part:

“If you recall, I called you concerning the interest of [Industrial] in certain equipment located on the premises which have been leased by [ADPI] in Scottsboro, Alabama, particularly in light of the fact that [the] Bank claims through various loans made to [ADPI], a majority of the equipment which has been utilized in [ADPI’s] operations.
“I have enclosed a copy of a list of the equipment which belongs to [.Industri-alI], which has been on lease to [ADPI], which equipment should not be attempted to be removed from the premises leased by [ADPI], during any removal of equipment by [the] Bank in removing equipment which [the] Bank alleges is secured through the various loans made to [ADPI].”

(Emphasis added.)

Ten days later, the trial court entered an order, stating that the Bank was entitled to possession of the equipment described on the asset list. It further authorized the Bank to take possession of the equipment in 30 days, if the debt of ADPI was not paid. The debt was not paid, and, in September 1992, the Bank took possession of all the equipment on the premises formerly occupied by ADPI. More specifically, the Bank leased the building housing the equipment and began liquidating the equipment.

In a letter to the Bank’s counsel dated December 10, 1992, counsel for Industrial noted that Industrial had received no notice of the liquidation. The letter also stated: “Arrangements ... need to be made to allow [Industrial] and/or Richard Hill to obtain possession of the equipment owned by [Industrial] and Richard Hill.” In a letter to Industrial’s counsel dated March 2, 1993, counsel for the Bank stated, in pertinent part:

“This will confirm that [the] Bank claims a security interest in all of the machinery and equipment and other miscellaneous items listed on the UCC-1 financing statements which I have previously provided, together with all additions, replacements, accessions and after acquired property. This includes virtually all of the property now located upon the former business premises of ADPI in Scottsboro, Alabama. As I explained to you last week, [the] Bank has negotiated a sale arrangement for .this equipment where they are guaranteed the sum of $ 105,000.00, which includes all of the equipment now located on the premises formerly occupied by ADPI. However, with your client making a claim to a portion of this equipment, whether their claim is valid or not, [the] Bank cannot guarantee clear title to the ultimate purchasers. Without this guarantee or certification, I suspect the purchasers will withdraw their offer. If this offer is withdrawn and is not replaced by an offer of equal value, and it is ultimately determined that [the] Bank holds a priority security interest on all of the equipment which they are claiming, the Bank will look to [Industrial] and Richard Hill for all consequential damages because of their interference with the Bank’s rightful foreclosure of their security interest.”

(Emphasis added.)

On March 17 and 18, 1993, Industrial’s counsel sent the Bank a letter and copies of numerous bills of sale and invoices from various companies, evidencing the purchase by Industrial of equipment, which Industrial specifically identified as its equipment being housed on the former premises of ADPI. The March 17 letter further stated:

“You stated in previous correspondence that once documentation had been provided to you evidencing title of the disputed equipment in my client, that you would immediately release said equipment to my client’s care and allow him to pick the same up. Demand is hereby made that the equipment ... (reflected on the attached exhibits) be immediately released. Any further attempt by [the] Bank to attempt to claim the equipment ... is frivolous and without merit. [The] Bank is totally without argument to deny my client immediate possession of said equipment.”

(Emphasis added.)

Additionally, Hill, accompanied by counsel, traveled to Scottsboro to meet personally with the Bank’s counsel regarding the documentation provided by the correspondence of March 17 and 18. At that meeting, Hill requested permission to retrieve the equipment. In response, according to Hill’s unrefuted testimony, counsel for the Bank told him “not to go out there [or] he was going to put him in jail for fraud.”

Subsequently, on May 7, 1993, the Bank amended its complaint to include a claim against Industrial and Hill, individually. The amended complaint sought a judgment declaring the Bank’s “security interest ... to be superior to the claims of the defendants in and to the equipment located upon the premises formerly occupied by [ADPI], and authorizing it to proceed with the sale in a commercially reasonable manner.” Industrial answered the amended complaint, and counterclaimed against the Bank, alleging conversion. The counterclaim sought $300,000 in compensatory damages, and $3,000,000 in punitive damages.

Throughout succeeding years, while this action was pending, Hill periodically visited the premises to keep apprised of the condition of the disputed equipment. In December 1993, Hill visited the premises, accompanied by James Hines, a loan officer of the Bank. At that time, Hill found the disputed equipment locked inside the deserted building. However, shortly thereafter, the Bank, for a reduction in the rent it was paying, allowed a third party to occupy the building and to use the disputed equipment in the third party’s business. When Hill visited the site in the spring of 1994, he discovered that some of the disputed equipment was no longer being used and that it had been placed outside the building. On a later visit, Hill found that all of the equipment was being stored outside the building.

On June 26, 1996, Industrial filed a “motion for emergency relief,” seeking an order “enjoining and prohibiting the sale and/or removal of [its] equipment by [the] Bank ... or [by] the ... landlord of the premises where the equipment owned hy Richard Hill and/or [Industrial] [was] located.” The injunction was necessary, because, Industrial alleged, the Bank was threatening, at the instance of the landlord, to sell the equipment on June 26, 1996, if it was not removed from the premises by that date. The motion further stated:

“That previously in this action, at [the] Bank’s officer’s deposition, [Industrial] discovered that some of the equipment owned by [Industrial] had been sold. After this discovery, it was subsequently learned at the mediation that additional equipment had been sold after notice had. been made on the parties arranging for the sale of the equipment on behalf of the Bank, was well as by the Bank itself. The equipment has been reduced to salvageable condition, but the Defendants Richard Hill and/or [Industrial] are still desirous of obtaining said equipment back in its current condition.”

(Emphasis added.)

That same day, the trial court entered an order authorizing Industrial to “go upon the premises” and remove its equipment by 5:00 p.m., June 30, 1996. Pursuant to that order, Hill retrieved what remained of the equipment.

Trial of the case began on December 3, 2001. At the close of all the evidence, each party moved for a judgment as a matter of law (“JML”) on various grounds. In addition, the Bank requested that the following jury instructions be given:

The Bank’s Requested Charge No. 5: “Members of the jury, if you are reasonably satisfied from the evidence that [Industrial] could have, in the exercise of ordinary care, recovered possession of all or a portion of the personal property ■ which it claims the right to [possess] then in such event, [Industrial] would not be entitled to recover damages against [the] Bank for that period of detention after the time in which [Industrial] could have reasonably recovered possession of the goods which it claims the right to possess.”
The Bank’s Requested Charge No. 6: “Members of the jury, I charge you that under the applicable Alabama law when one party seeks to attach or execute by legal means personal property belonging t‘o another, any person who claims to hold title to that same property has the right to take possession of that property by filing with the court a sworn affidavit that it holds title to the property, and by posting a bond in an amount double to the value of the property levied on and claimed. Upon the filing of such affidavit and posting of such bond, the personal property must be delivered to the possession of the party claiming title to it.”

The trial court refused those charges.

The Bank’s claim against Industrial, and Industrial’s conversion counterclaim against the Bank, were submitted to a jury. Regarding the Bank’s claim, the jury was instructed to determine which entity, the Bank or Industrial, possessed a “superior interest in the disputed property.” The jury returned a verdict in favor of Industrial, awarding $148,000 in compensatory damages and $250,000 in punitive damages. The trial court entered a judgment on that verdict in the amount of $480,310, that is, the amount of the verdict plus $82,310 interest.

The Bank filed a posttrial motion, arguing, in material part, that the trial court had erred (1) in refusing to charge the jury on mitigation of damages, and (2) in denying its motion for a JML, which challenged the sufficiency of the evidence of conduct that would support an award of punitive damages. Also, the Bank argued — for the first time — that the court erred in “entering] a judgment in favor of [Industrial] for compensatory damages in the amount of $148,000, based upon the uncontroverted testimony that [Industrial] could have recovered immediate possession of the ... equipment ... by complying with statutory detinue requirements provided by [Ala.Code 1975, § 6-6-250].” The trial court granted the motion only insofar as it related to punitive damages, and it vacated the punitive-damages award. •

Subsequently, Industrial filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. On June 12, 2002, the trial court entered an order denying that motion. ' Industrial appealed, and the Bank cross-appealed. For ease of discussion, we first address the Bank’s cross-appeal.

I. The Bank’s Cross-Appeal

The Bank presents one issue on cross-appeal: “Whether the trial court erred in denying [the Bank’s] motion for judgment as a matter of law on the claims of [Industrial] for conversion in light of the uncon-troverted evidence that [Industrial] had failed to mitigate its damages.” The Bank’s brief, at 12 (emphasis added). In that connection, the Bank argues:

“[Industrial] should, in the exercise of reasonable care, have taken steps to secure possession of the equipment to which it claimed title, after [ADPI] abandoned the equipment in May 1992 and before [the Bank] assumed control of the building where the equipment was stored in September 1992. Secondly, when [the Bank] assumed control of the building where the equipment was stored, [Industrial], in the exercise of reasonable care and to protect its own interest, should have exercised its rights under Alabama’s detinue statute, [Ala. Code 1975, § 6-6-250,] in order to obtain immediate possession of the equipment. Either way, the exercise of due care by [Industrial] would have either eliminated or greatly reduced any loss or claim for damage, and certainly would have eliminated or greatly reduced the claim' for interest, that it might otherwise have suffered.”

Id. at 27 (emphasis added). For these reasons, the Bank contends, it was entitled to a JML, because of the insufficiency of the evidence on the damages element of Industrial’s conversion claim. Id. at 62. In the alternative, it argues, it was entitled to a JML “on the trial court’s award of interest to [Industrial] for a period of approximately nine years.” Id. at 64-65.

We pretermit any consideration of the sufficiency of the evidence of compensatory damages or interest, because the Bank failed to preserve those issues for review. This is so, because they were raised for the first time in the Bank’s posttrial motion.

It is well-established that “a timely post-trial motion [for a JML] is necessary to permit an appellate court to consider the sufficiency of the evidence.” Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 880 (Ala.1979); see also Joseph Land & Co. v. Gresham, 603 So.2d 923, 927-28 (Ala.1992); King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 716 (Ala.1987). However, “[i]t is a procedural absolute that a [post-trial motion for a JML], based on the ‘insufficiency of the evidence,’ is improper, if the party has not moved for a [JML] on the same ground at the close of all the evidence.” Barnes v. Dale, 530 So.2d 770, 776 (Ala.1988) (emphasis added).

At the close of all the evidence, the Bank filed the following written motion:

“1. [Industrial] has failed to carry the burden of proof to show a clear and unequivocal right to possession of the machinery and equipment for which [the Bank] received notice of [a] claim.
“2. [Industrial], being a corporate entity, is without authority to pursue any action in the courts of this state, having failed to comply with the provisions of Section 10-2B-16.22, Code of Alabama of 1975, as amended, and is therefore not in good standing as a corporate entity in the State of Alabama.
“3. The uncontroverted evidence reveals that [Industrial] failed to follow the provisions of the United States Bankruptcy Code before receiving title to assets of [ADPI], a debtor in bankruptcy, in that [Industrial], a corporate entity, received no permission from the Bankruptcy Court pursuant to Section 363 of the United .States Bankruptcy Code and Rule 4001(b) of the Rules of Bankruptcy, Procedure in order to take a secured position in any asset of the bankrupt debtor. Therefore, the - attempted transfer of assets including machinery, equipment and accounts receivable • from the bankrupt debtor to [Industrial] was void.
“4. [Industrial] received no permission from the Bankruptcy Court to take a secured position in the accounts receivable of the debtor, ■ [ADPI]; or to have transferred assets from a bankrupt debtor) all in violation of Section 363, of the United States Bankruptcy Code and Rule 4001(b) of the Rules of Bankruptcy Procedure. The only security for the loans to be made to [ADPI], were in the form of an administrative priority, giving the creditor priority over other administrative expenses.' Therefore, assets of [ADPI], having been obtained in violation of the United States Bankruptcy Code, such transactions are void.
“5. [Industrial] has failed to prove substantial evidence that [the Bank] acted in a willful, wanton, or intentional manner at the time of the alleged act of conversion.
“6. [Industrial] has failed to prove substantial evidence of mental anguish.”

The Bank’s oral motion for a JML tracked these arguments. These arguments simply do not include a challenge to the sufficiency of the evidence of compensatory damages, especially on the ground that Industrial failed to pursue alleged statutory remedies in a timely manner. Because that argument was first raised in a posttrial motion for a JML, it is not reviewable.

To be sure, the Bank did request that the jury be instructed on Industrial’s duty to mitigate damages. Of course, “ ‘[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis of the granting of a new trial.’ ” H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 28 (Ala.2002) (quoting Nunn v. Whitworth, 545 So.2d 766, 767 (Ala.1989)). In other words, the remedy for a trial court’s having given an improper jury instruction is a new trial, not a JML.

However, the Bank does not request a new trial. It requests only a JML on the element of damages, or, in the alternative, a JML on the award of interest. The question of the Bank’s right to a JML on the issue of compensatory damages was not preserved. Consequently, there is no merit in the Bank’s cross-appeal.

II. Industrial’s Appeal

Industrial raises a number of issues on appeal. However, the relief it requests is stated in the alternative. It urges this Court to reverse on various grounds the judgment of the trial court and remand the cause for a new trial, or, in the alternative, to reinstate the jury’s punitive-damages award. We conclude that the trial court erred in vacating the jury’s punitive-damages award, and we resolve this case on that basis.

At the outset, we note that the Bank does not challenge the amount of the punitive-damages award. In other words, it contends that no punitive-damages award was authorized by the facts, not that the amount awarded was excessive. Thus, we are not invited to consider the “guideposts” established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), or the factors set forth in Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). We determine only whether the punitive-damages issue was properly submitted to the jury for its decision.

We begin our discussion with the following principles in view: “Conversion is an intentional tort.... ‘The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods [of the plaintiff] which is in fact inconsistent with the plaintiffs rights.’ ” Johnson v. Northpointe Apartments, 744 So.2d 899, 904 (Ala.1999) (quoting W. Keeton, Prosser & Keeton on Torts § 15 (5th ed.1984)). “Intentional torts ordinarily carry punitive damages, if the jury chooses to award them.” Tillis Trucking Co. v. Moses, 748 So.2d 874, 887 n. 12 (Ala.1999). Indeed, “[pjunitive damages are recoverable in a conversion case when the evidence shows legal malice, willfulness, insult, or other aggravating circumstances.” Schwertfeger v. Moorehouse, 569 So.2d 322, 324 (Ala.1990) (emphasis added). “ ‘[Pjunitive damages [in an action for conversion] are justified when the evidence discloses the conversion to have been committed in known violation of law and of owner’s rights, with circumstances of insult, or contumely, or malice.’ ” Roberson v. Ammons, 477 So.2d 957, 961 (Ala.1985) (quoting Carolina Cas. Ins. Co. v. Tisdale, 46 Ala.App. 50, 57, 237 So.2d 855, 859-60 (1970)). “The conversion committed in known violation of the law and of plaintiffs’ rights is itself legal insult, contumely, or malice sufficient to justify an award of punitive damages.” 477 So.2d at 961 (emphasis added).

Consistent with Ala.Code 1975, § 6-ll-20(a), a punitive-damages award will not be vacated where the evidence supporting the award is “of such quality and weight that a jury of reasonable and fair-minded persons could find by clear and convincing evidence,” Ex parte Nor- wood Hodges Motor Co., 680 So.2d 245, 249 (Ala.1996), that the conversion was associated with “malice, willfulness, insult, or other aggravating circumstances.”

The trial court, in a posttrial order, stated:

“As to insult or malice, [Industrial] points to evidence that in March 1993, when its officer, Richard Hill, went to Scottsboro to investigate the situation, the Bank’s counsel informed him that if he tried to retrieve the property, he would be arrested. This conduct did not occur at the time of the conversion, but more than a year thereafter and subsequent to the Bank’s filing this declaratory judgment action to determine the superiority of the claims. This statement cannot be the basis for a punitive damage[s] award. See Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505 ([Ala.]Civ.App.1973).”

(Emphasis added.) Expanding on that theme, the Bank argues:

“The trial court correctly relied upon [Treadwell Ford, Inc. v. Wallace, 49 Ala. App. 308, 271 So.2d 505 (Ala.Civ.App. 1973),] in determining that, in order to be actionable, any so-called ‘rude or insulting’ language or conduct directed toward [Industrial] must have occurred at the time of conversion, which was September 1992. Any allegedly rude or insulting conduct directed to [Industrial] at a time other than at the time of conversion simply cannot support an award of punitive damages.”

The Bank’s brief, at 47 (emphasis in original).

Thus, relying on Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (Ala.Civ.App.1973), the Bank argues that nothing that transpires between the plaintiff and the defendant after the date of the alleged conversion is.relevant to the plaintiffs conversion claim. Industrial contends that, current Alabama law does deem relevant conduct that postdates the conversion. We agree with Industrial.

Caselaw is replete with opinions attesting to the relevance of conduct occurring after the conversion. Indeed, where punitive damages are sought, “[e]vidence of any fact which legitimately tends to show the motive and spirit of the defendant in doing the act complained of is admissible in an action for conversion.” 18 Am.Jur.2d Conversion § 168 (1985) (emphasis added; footnote omitted). In particular, a defendant’s ongoing refusal— with associated conduct — to return property upon demand is evidence of legal insult, contumely, or malice. In other words, even where the initial taking by the defendant was not tortious, “ ‘the retention of the personalty after demand for its return’ ” may present a question of fact “ ‘on the issue .of punitive damages.’ ” Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 428, 768 S.W.2d 28, 30 (1989) (quoting Ford Motor Credit Co. v. Herring, 267 Ark. 201, 206-07, 589 S.W.2d 584, 588 (1979))(emphasis added).

The dispute in Keck began when Richard Keck took his Yugo automobile to Walt Bennett Ford, Inc. (“Bennett”), for repairs. 298 Ark. at 425, 768 S.W.2d at 28. Bennett provided Keck with a substitute automobile to use while his Yugo was being repaired. 298 Ark. at 425-26, 768 S.W.2d at 29. After seven weeks, Keck returned to Bennett to pick up his Yugo. However, when Keck refused to pay $1,200 as the rental amount for the substitute automobile, Bennett refused to release the Yugo. It was “undisputed that all repairs to the Yugo were warranty repairs, that Keck owed [Bennett] nothing for the repairs, and that the lease agreement form for the substitute automobile did not grant the dealer a possessory lien on the [Yugo].” 298 Ark. at 426, 768 S.W.2d at 29.

In Keck’s action against Bennett for conversion, a jury awarded Keck $6,337 in compensatory damages and $25,000 in punitive damages. 298 Ark. at 426, 768 S.W.2d at 29. Bennett appealed, contending that the “trial court erred in submitting the issue of punitive damages to the jury.” 298 Ark. at 427, 768 S.W.2d at 30. The Arkansas Supreme Court affirmed, explaining:

“[Bennett’s] conduct of retaining the Yugo even through the trial, thirteen months after the demand for surrender, without any claim of mistake or privilege or other legal right to do so, presents a submissible issue on punitive damages. The jury reasonably could have concluded that [Bennett] withheld Keck’s property, his means of transportation, with the intent of causing him such inconvenience and damage that he would be coerced into the payment of a questionable debt. [Bennett] continued this course of conduct even after it was sued for conversion, obtained legal counsel and filed a counterclaim for the disputed rental. The evidence is sufficient to support a finding of intent to cause damage.”

298 Ark. at 428, 768 S.W.2d at 30 (emphasis added).

In Smiley v. Cardin, 655 S.W.2d 114 (Mo.Ct.App.1983), the court affirmed a $10,000 punitive-damages award in favor of a tenant in the tenant’s action against her former landlord for conversion of her household appliances. 655 S.W.2d at 115. The tenant made at least two demands for release of her appliances. In response to the first demand, the landlord “ ‘just kind of snickered’ and said he would [release them] when paid some back rent he claimed she owed.” Id. Subsequently, the tenant’s lawyer “wrote [the landlord] demanding the return of the appliances but obtained no response. [The tenant] then, for the second time, asked for the appliances but received from the [landlord] another ‘snicker’ and assurances the items would be returned when plaintiff paid her debt.” 655 S.W.2d at 115-16. On still another occasion, the tenant’s lawyer telephoned the landlord to explain “that he was legally bound to return to [the tenant] the property he had come by through self-help.” 655 S.W.2d at 116. During that conversation, the landlord directed an obscene remark to the lawyer.

On appeal, the landlord contended that the “trial court erred by awarding [the tenant] $10,000 in punitive damages because [her] evidence ... failed to establish that [the landlord’s]' acts were characterized by actual malice or' that [he had] willfully and wantonly attempted in injure [her].” 655 S.W.2d at 116. The appellate court disagreed. In affirming the punitive-damages award, the court explained: “[The landlord’s] treatment of [the tenant] after being advised by counsel, both by letter and telephone, that he was withholding [the tenant’s] property illegally and [the landlord’s] admitted obscene direction to the attorney, demonstrates the spite and ill will which motivated [his] conduct in the matter.” 655 S.W.2d at 117.

Thus, the basis for punitive damages in both Keck and Smiley was the continued withholding of the converted property without legal justification. . Smiley, of course, contained an additional basis, namely, the defendant’s use of an obscenity during a conversation with the plaintiffs lawyer after the conversion had occurred. See Ford Motor Credit Co. v. Spicer, 144 Ga.App. 383, 388, 241 S.E.2d 273, 277 (1977) (“From the fact that Ford Motor Credit Company continued to withhold plaintiffs automobile after learning of its error in crediting payment ... to the wrong account ..., the jury[, which awarded punitive damages of $38,500,] was authorized to infer that the repossession was malicious from the time it was carried out....”); Lack’s Stores, Inc. v. Waisath, 479 S.W.2d 406, 408 (Tex.Civ.App.1972) (the defendant’s “continued refusal to return plaintiffs furniture” constituted “aggravating circumstances,” so as to justify an award of punitive damages in an action for conversion); see also Ford Motor Credit Co. v. Herring, 267 Ark. at 207, 589 S.W.2d at 588 (“although the [initial] taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages”); Hinton v. State Farm Mut. Auto. Ins. Co., 741 S.W.2d 696 (Mo.Ct.App.1988).

Our own caselaw is in accord. For example, in Brown v. Campbell, 536 So.2d 920 (Ala.1988), this Court affirmed a judgment entered on a jury verdict, awarding $5,000 in compensatory damages and $10,000 in punitive damages to Jerry Campbell in his action against Dwight Brown and Lendon Brown for fraud and for conversion of a stock certificate. “Campbell’s suit alleged that the Browns had fraudulently induced him to transfer his 250 shares of stock in Brown Tables, Inc., and had converted his certificate (representing 20% of the corporation) during the period from July 10, 1986, to November 5,1986.” 536 So.2d at 921. '

The stock transfer occurred on June 10, 1986, in response to an allegedly fraudulent request from the Browns. Id. At that time, Campbell was a “plant manager” for Brown Tables, Inc. The next day, “the Browns fired Campbell.” 536 So.2d at 921. Approximately 10 days later, Campbell demanded the return of his stock certificate. He was told, however, that the certificate could not be located, “but that [the Browns’] attorney might have it.” 536 So.2d at 921. “Campbell then asked [the Browns’] attorney for the certificate; it was returned to Campbell by the attorney November 5, 1986, some three weeks after he had sued the Browns and Brown Tables, Inc.” Id. (emphasis added).

On appeal, the Browns argued that “Campbell failed to prove damages on both the conversion claim and on the fraud claim.” 536 So.2d at 921. This Court rejected both arguments. Regarding the conversion claim, this Court said: “There was clearly ample evidence that the Browns refused to surrender Campbell’s certificate after he requested it, ... as well as of actual pecuniary loss by Campbell; this evidence supports the award of both compensatory and punitive damages.” Id. at 921-22. The basis mentioned in Brown for punitive damages on the conversion claim was the continued withholding of the certificate from Campbell- for approximately five months, in the face of repeated requests for its return. In other words, this Court deemed the Browns’ continuing refusal to be “ample evidence” of the sort of aggravating circumstances that will support an award of punitive damages. Id. at 921.

The Court of Civil Appeals reached a similar conclusion in Liberty National Life Insurance Co. v. Caddell, 701 So.2d 1132 (Ala.Civ.App.1997). In that case, Liberty National Life Insurance Company (“Liberty National”) appealed from a judgment entered on a jury verdict awarding Liberty National’s insured, Michael Caddell, $50,000 in compensatory damages and $100,000 in punitive damages, on Caddell’s claim against Liberty National for conversion of cash. Id. at 1133. The jury concluded that Liberty National had converted premium payments that were due Caddell, as the result of his decision to cash in his life insurance policy and annuity rider. Id.

Caddell submitted to Liberty National the completed forms necessary to cash in the policy and annuity in March 1994. At that time, Liberty National was deducting the “monthly policy and annuity rider premium” by “electronic funds transfer or ‘bank draft’ directly from [Caddell’s] bank account.” Id. In March 1994, Thomas Rotton, Liberty National’s agent, received from Caddell the completed forms, and told Caddell “that he would have the bank drafts stopped and that the forms completed ... were all Caddell needed in order to cash in his policy. Caddell never heard from or saw Rotton again.” Id. at 1134.

That month “Caddell received a $2,158.06 check from Liberty National.” Id. However, that cheek represented only “the cash value of the annuity portion of the policy.” Id'. Liberty National continued to draft from Caddell’s account the premiums for the life insurance policy. Caddell’s subsequent attempts to stop the automatic drafts and collect the proceeds of his policy are thoroughly chronicled as follows:

“In March 1994, Caddell received a $ 2,158.06 check from Liberty National representing the cash value of the annuity portion of the policy. Upon receipt of this check, Caddell telephoned the Liberty National office in Eufaula to inquire about the balance of his funds. Caddell stated that he was told he would receive the balance of his funds in a couple of weeks. Caddell’s March 8, 1994, bank statement indicates that $ 80.65 was drafted from his account.
“In April 1994, $ 45.65 was drafted from Caddell’s bank account. He called the Liberty National office to ask why Liberty National was still drafting his account. He stated that he was told by a Liberty National representative that Liberty National would ‘look into it’ and that ‘it would be taken care of.’ Cad-dell’s June 7, 1994, bank statement indicates that $ 45.65 was drafted from his account twice during the month of June. Caddell again contacted Liberty National and, again, was told that Liberty National would ‘look into it.’ Caddell’s wife attempted to have the bank drafts stopped in March 1994, by completing a ‘stop payment’ form at the bank; however, this attempt failed. It was not until after she had contacted the bank in June 1994, after receiving the bank statement, and asked .that the bank drafts be stopped that the drafts on Caddell’s account were stopped.
“Between January and Juné 1994, all contact with Liberty-National had been initiated by Caddell; Liberty National had never contacted Caddell about the problems with the bank drafts. Caddell contacted his attorney in June 1994. That same month, he received a cash surrender, request form from Liberty National,' which he turned over to his attorney. In September 1994, Caddell received from Liberty National an ‘automatic loan receipt’ indicating that it had deducted $ 84.52 from the cash value of his policy. In November 1994, Caddell received from Liberty National another ‘automatic loan receipt’ indicating that it had deducted $ 592.79 from the cash value of the policy. In November 1995, one year after Caddell had filed his lawsuit, he received the balance of the cash value from his policy.”

Id. (emphasis added). Before trial, Liberty National “returned the premiums, plus interest, that had been deducted from Caddell’s bank account after Caddell had requested the cancellation of the insurance policy.” Id. at 1135.

On appeal, Liberty National contended that “the trial court erred in submitting the issue of punitive damages to the jury and that the evidence [did] not support an award of punitive damages.” Id. at 1136. The Court of Civil Appeals disagreed, stating:

“Caddell presented evidence that Liberty National had wrongfully deducted premium payments from his bank account after he was told that he had completed the forms necessary to cash in the policy and annuity rider. The evidence indicated that after each draft on his account Caddell contacted Liberty National and that each time he was told that Liberty National would ‘look into it’ and that ‘it would. be taken care of.’ Caddell also presented evidence that Liberty National did not correct its error and that he did not receive a refund of those payments and interest until he had hired an attorney and filed a lawsuit.”

Id. (emphasis added). Consequently, the court affirmed the judgment awarding punitive damages.

Like Brown, Caddell involved no rude or insulting behavior. As in Brown, the basis articulated in Caddell for the punitive-damages award was the continued withholding of the converted property without legal justification, causing the inconvenience and expense of a lawsuit. Neither ease involved rude or insulting language, either at the time of conversion or afterward. Nevertheless, the retention of converted property in the face of a demand for its return is post-conversion conduct, which is material to the issue of punitive damages: These cases, therefore, as well as those from the other jurisdictions discussed above, refute the Bank’s argument that the defendant’s post-conversion conduct is irrelevant to the plaintiffs conversion claim. To the extent Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (1973), and Progressive Finance Co. v. Milner, 45 Ala.App. 684, 236 So.2d 349 (1970), on which Treadwell relied, are inconsistent with this opinion, they are overruled.

The rule to be drawn from the cases discussed above compels the conclusion that the trial, court erred in vacating the jury’s punitive-damages award. In this case, it is undisputed that the Bank converted Industrial’s equipment, and there is ample evidence that it did so knowingly and with legal malice. The Bank took possession of Industrial’s equipment in September 1992. In fact, the Bank had notice, through Industrial’s letter of July 13, 1992, that is, before it acquired possession, that Industrial was claiming equipment that was located on the premises of ADPI. Industrial made a formal demand for the return of that equipment1 in a letter dated March 17, 1993. That same month, Industrial presented bills of sale and invoices from various companies, many dating from and after November 30, 1989, which showed Industrial as the purchaser of the equipment it claimed. The Bank summarily rejected Industrial’s offer of proof of ownership. In fact, the Bank’s counsel responded to the offer of proof by threatening Hill with incarceration.

Indeed, following the cessation of business by ADPI, the Bank sought — and the trial court granted — possession only of the equipment described on the asset list the Bank had filed with its UCC financing statement on March 28, 1988. Obviously, the asset list did not contain items that were purchased by Industrial and evidenced by invoices and bills of sale dating from November 30, 1989. Nevertheless, the Bank made clear in its letter to Industrial’s counsel on March 2, 1993, that it was claiming a security interest in all the equipment on the premises.

Notwithstanding the fact that Hill remained obviously solicitous of his equipment, the Bank continued to withhold the machinery for more than three years after receiving extensive evidence of Industrial’s ownership. It was not until June 1996, in connection with the Bank’s alleged renewed threat to dispose of the equipment, that Industrial was able to reclaim what remained of its property, following the effects of weather, unauthorized use, and sale. By that time, according to Hill, the equipment was “ruined.”

In short, the Bank converted Industrial’s personalty and retained it for almost four years, without an articulated, arguable excuse. Even without rude or insulting language or conduct, taking and withholding personalty in knowing violation of the plaintiffs rights “is itself legal insult, contumely, or malice sufficient to justify an award of punitive damages.” Roberson v. Ammons, 477 So.2d at 961; see also Brown v. Campbell, supra; Liberty Nat’l Life Ins. Co. v. Caddell, supra.

This case, however, does involve such aggravating circumstances. In the letter of March 2, 1993, to Industrial’s counsel, counsel for the Bank threatened Hill and Industrial with claims for “all consequential damages because of their interference with the Bank’s” attempts to sell the equipment. Later that month, counsel for the Bank, in a personal encounter with Hill, threatened Hill with criminal prosecution.

The post-conversion conduct in this case, namely, the threats and intimidation, coupled with the Bank’s retention of the equipment for approximately four years, is relevant to the issue, and clearly supports the imposition, of punitive damages. The trial court erred, therefore, in vacating the jury’s punitive-damages award.

III. Summary

In summary, that portion of the judgment based on the jury’s award of compensatory damages and the interest thereon is affirmed. However, the judgment, to the extent it vacated the jury’s award of punitive damages, is reversed, and the cause is remanded for reinstatement of the jury’s verdict.

1011966 — REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, and STUART, JJ., concur.

MOORE, C.J., and SEE and HARWOOD, JJ., concur in the result.

1012064 — AFFIRMED.

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

MOORE, Chief Justice

(concurring in case no. 1012064 and concurring in the result in case no. 1011966).

I concur in affirming that portion of the judgment of the trial court refusing to vacate the jury’s award of compensatory damages and the interest on that award, and I concur in the result insofar as the majority reverses the judgment of the trial court setting aside the jury’s award of punitive damages. I agree that this case should be remanded to the trial court for reinstatement of the punitive-damages award because I believe that sufficient evidence exists for the award of such damages based upon the Bank’s seizure of property it knew at the time of the seizure belonged to Industrial and the refusal by the Bank to release that equipment after Industrial made repeated requests for the equipment.

Punitive damages are recoverable in a conversion action “‘where the evidence shows legal malice, willfulness, insult, or other aggravating circumstances.’ ” Rainsville Bank v. Willingham, 485 So.2d 319, 324 (Ala.1986) (quoting Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 639, 320 So.2d 652, 654 (1975)). The jury was clearly entitled to find that the actions of the Bank were willful, malicious, and without justification in light of a court order stating that the Bank was only “entitled to immediate possession of the equipment listed on [ADPI’s ‘asset list’ filed with the Bank’s UCC financing statement].” The Bank knew that part of the property it intended to seize was owned by Industrial and was not listed on ADPI’s asset list. The Bank disregarded the explicit provisions of the court’s order, and seized property belonging to Industrial, knowing it was not entitled to do so, which in itself may be sufficient to support the award of punitive damages. Refusal to release that property after repeated requests therefor is further evidence of the Bank’s intent to convert the property.

      . Our review also included Ex parte Indus. Techs., Inc. (No. 1980079, November 6, 1998) (mandamus petition denied, without an opinion).

      . The Bank eventually acquired a default judgment against ADPI. None of the Bank’s claims against that entity are material to this appeal.

      . The jury found that the Bank had a “superi- or interest” in two items of equipment. That finding is not material to this appeal. See note 7.

      . "Under the [detinue] statute and the facts of this case,” the Bank argues, "the appropriate period of time [on which to base an interest calculation] would be five days." The Bank’s , brief, at 63 (emphasis added).

      . In that connection, "[t]his Court [has] held that in order for a judge to submit the issue of punitive damages to the jury as the trier of fact, the judge must be satisfied by substantial evidence.” Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 100 n. 5 (Ala.2001). "Then, the jury must be satisfied that the plaintiff has presented clear and convincing evidence to support the punitive-damages award.” Id. See also Omni Ins. Co. v. Foreman, 802 So.2d 195, 198 (Ala.2001) (“when an injured person sues a tortfeasor and offers substantial evidence of conduct that this Court has recognized as appropriate to support an award of punitive damages, the trial court that takes the issue of punitive damages from a jury will see its judgment reversed”).

      . The Bank does not argue here, as it did in the trial court, that Industrial "failed to carry the burden of proof to show a clear and unequivocal right to possession of the machinery.'' Thus, for the purposes of this appeal, the Bank effectively concedes that it converted Industrial’s equipment and does not purport to justify the taking or retention of the equipment.

      . It is immaterial whether there was an arguable basis for withholding some items of equipment claimed by the parties. Indeed, the jury found that the Bank properly retained two items. The right to retain some is not the right to retain others, namely, those items of equipment that belonged irrefutably to Industrial.


source: Caselaw Access Project

author: PER CURIAM. LYONS, Justice MOORE, Chief Justice JOHNSTONE, Justice

license: Public Domain

text:
    WAL-MART STORES, INC., et al. v. Ross SMITHERMAN.
    1000684.
    Supreme Court of Alabama.
    May 2, 2003.
    Rehearing Denied Aug: 29, 2003.

      Michael M. Shipper and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellants.
    Tracy T. Sproule, Leah O. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appellee.
   PER CURIAM.

The defendants Wal-Mart Stores, Inc. (“Wal-Mart”), and its employees Joe Pax-ton and Sheila Easterling appeal from a judgment entered on a jury verdict, awarding $100,000 to Ross Smitherman on his claims alleging negligence, wantonness, slander, and the tort of outrage. We reverse and remand.

I. Facts

This action arises out of a dispute be-' tween Smitherman, an employee of Merita Baking Company (“Merita”), and Wal-Mart over whether Smitherman should, at the instance of Wal-Mart, have, credited Wal-Mart approximately $1.00 for an empty bread bag found during a routine bread delivery from Merita to the Wal-Mart Su-percenter store in Prattville (“the Super-center”). On the day the dispute arose, the assistant manager of the Supercenter admitted Smitherman through the back door into the vendor receiving area of the Supercenter. After Smitherman collected stale and damaged bread from the Super-center shelves, he wrote Wal-Mart a credit slip for the stale and damaged bread. Smitherman then unloaded three rolling racks with trays of fresh bread from his delivery truck. As he rolled the racks filled with fresh bread through the back door of the Supercenter, the assistant manager checked in the delivery by scanning and counting the packages of bread. Smitherman then wrote an invoice for the charge to Wal-Mart and placed the bread on the shelves inside the store.

While Smitherman was placing the bread on the shelves, Easterling, a Wal-Mart employee, took the assistant manager’s place as the receiving clerk. When Smitherman rolled his empty racks with empty trays to the back door in the receiving area, Easterling looked at the trays to make sure that Smitherman was not attempting to leave the store with any merchandise that had not been credited to Wal-Mart. She noticed an empty, flat bag in one of the trays. The empty bag would have held Sunmaid Raisin Bread, which, if charged to Wal-Mart, would cost a little more than a dollar.

Easterling assumed that Wal-Mart had, on a prior delivery, been charged for a loaf of bread that she assumed the bag had contained, and asked Smitherman to credit Wal-Mart for the price of the loaf of bread. Smitherman contended that the empty bread bag had never been filled with bread, but, rather, had been ejected by the packaging machine and then buried among successfully bagged loaves of bread. The accounts of Smitherman and Easterling of their conversation regarding the credit differ markedly. However, it is undisputed that Smitherman left the Su-percenter without giving Wal-Mart a credit for the loaf of bread.

Later that same day, Smitherman’s supervisor, James Maddox, telephoned Smitherman at home and told him that Joe Paxton, one of the managers of the Super-center, had said that Wal-Mart did not want Smitherman to make any more deliveries to the store because of the incident. The next day, Maddox and Merita’s district sales manager, Tommy McDaniel, visited Paxton at the Supercenter and told him Smitherman had refused to credit Wal-Mart because the empty bag had never been filled with bread. They also told Paxton that Smitherman would lose his job if he could not continue to deliver to Wal-Mart stores. Paxton told them that he would talk with the manager of the Super-center, but that, in the meantime, Smither-man could not make deliveries to any Wal-Mart stores.

Maddox made Smitherman’s scheduled stop at the Supercenter the next day. When he arrived, Paxton told him Smith-erman was banned from delivering to the Supercenter. As a result of the dispute, Merita assigned Smitherman a route that did not necessitate contact with any Wal-Mart store. The new route was less lucrative and less convenient for Smitherman.

On March 17, 1999, Smitherman sued Wal-Mart, Easterling, and Paxton. As eventually amended, the complaint contained six counts. Count one alleged that the defendants had interfered with a business relationship between Smitherman and Merita. Count two alleged slander. Counts three and four alleged wrongful or intentional infliction of emotional distress (the tort of outrage). Count five alleged negligent or wanton training and supervision. Count six alleged, in toto:

“1. [Smitherman] realleges all allegations contained in this Complaint.
“2. [Smitherman] claims damages against Defendant Wal-Mart and Defendant Paxton for their negligence and/or wantonness in failing to investigate and/or follow the necessary policies and procedures to evaluate the incident at issue.
“3. [Smitherman] avers that Defendant Wal-Mart and Defendant Paxton were negligent and/or wanton in that they failed to adequately investigate and/or follow the necessary policies and procedures to evaluate the incident at issue.
“4. The negligence and/or wantonness of Defendant Wal-Mart and Defendant Paxton in failing to investigate and/or follow the necessary policies and procedures to evaluate the incident at issue was a proximate cause of [Smither-man’s] damages.
‘WHEREFORE, [Smitherman] demands judgment against Defendants Wal-Mart and Paxton for the damages, both compensatory and punitive, plus interest [and] all costs of this proceeding in an amount exceeding the jurisdictional minimum of this court.”

Before trial, Smitherman dismissed his slander claim against defendant Easter-ling. Wal-Mart, Easterling, and Paxton, all represented by the same attorney, jointly moved for a summary judgment on all remaining claims. The trial court entered a summary judgment in favor of the defendants on Smitherman’s tortious-inter-ference claim. The case proceeded to trial on the theories of (1) negligent and/or wanton supervision and investigation, (2) slander as to Wal-Mart and Paxton, and (3) the tort of outrage.

At the close of the plaintiffs case-in-chief and again at the close of all the evidence, the defendants moved for a judgment as a matter of law (“JML”) on all claims tried. The trial court denied the motions. The jury returned a general verdict in favor of Smitherman and against all the defendants for $100,000. The defendants filed a renewed motion for a JML or, in .the alternative, for a new trial. The trial court denied the motion. The defendants appeal, arguing that they were entitled to a JML as to all the claims.

II. Applicable Standard of Review

We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is ‘indistinguishable from the standard by which we review a summary judgment.’ ” Alabama Power Co. v. Aldridge, 854 So.2d 554, 560 (Ala.2002) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination.” Id. (citing City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002)). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

“The existence of a duty is a question of law to be determined by the ... court.” Ex parte Farmers Exchange Bank, 783 So.2d 24, 27 (Ala.2000). See also State Farm Fire & Cas. Co. v. Owen, 729 So .2d 834 (Ala.1999).

III. The Claims

A. Negligent and/or Wanton Training and Supervision and Failure to Investigate

Wal-Mart, Easterling, and Paxton argue that Smitherman did not present substantial evidence to prove his negligence and wantonness claims. In that connection, they state: ■

“Smitherman has never been employed in any capacity by Wal-Mart. He has no contract with Wal-Mart. He was never promised that he could continue to deliver bread to Wal-Mart indefinitely. Wal-Mart became dissatisfied with Smitherman because Smitherman refused to provide a $1 credit to Wal-Mart’s account for a bread bag he was removing from the premises. Wal-Mart asked Merita Bread to send a different delivery man to its store from that point forward.”

Appellants’ Brief, at 15. Thus, Wal-Mart, Easterling, and Paxton insist, they cannot be liable for the manner in which they investigated, the merits of the dispute— whether Wal-Mart was entitled to a credit for the empty bread bag — because, they argue, they did not owe any duty to Smitherman, as an employee and sales representative of Merita, its bread vendor, to continue to allow Smitherman to deliver to Walr-Mart.

We agree with this argument, because it illustrates the fatal flaw in Smith-erman’s negligent and/or wanton failure-to-investigate claim. The flaw is that Smitherman has failed to cite, argue, or allege a principle of law that would prohibit Wal-Mart from refusing to deal with him for any reason — or for no reason. In the absence of such a principle, there could be no legal injury flowing from Wal-Mart’s allegedly deficient investigation.

In essence, this claim is a wrongful-discharge claim, masquerading as a negligent and/or wanton failure-to-investigate claim, where no wrongful-discharge claim has been, or could have been, maintained. In particular, count six of Smitherman’s complaint alleges only that Wal-Mart and Paxton negligently or wantonly failed to investigate the credit dispute. Thus, Smitherman did not allege in his complaint — and does not argue on appeal— that his claim is one for wrongful termination of employment. Neither does he allege or argue that Wal-Mart owed him a right of permanent access to its premises for service of its Merita account, and the facts of this case would not support such a claim.

This is so, because Smitherman does not purport to be a Wal-Mart employee. Indeed, it is undisputed that he works for Merita, and, indeed, he claims to have no contractual or business relationship with Wal-Mart. “Under Alabama law, an employment contract is generally terminable at will by either party, with or without cause or justification — for a good reason, a wrong reason, or no reason at all.” Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992); see also Turner v. Shorty’s Truck & R.R. Car Parts, Inc., 723 So.2d 1279, 1282 (Ala.Civ. App.1998) (the employment of an at-will employee may be terminated at any time, “for a good reason, for a bad reason, or for no reason”).

“In Alabama, ‘permanent ’ employment is ‘so long as [the employer is] engaged in the same nature of business and need[s] the services of [the] employee, and [the employee is] able and willing to do it satisfactorily and [gives] no cause for his discharge.’ ” Matthews v. Alabama Agric. & Mech. Univ., 716 So.2d 1272, 1277 (Ala.Civ.App.1998) (emphasis added) (quoting Alabama Mills v. Smith, 237 Ala. 296, 299, 186 So. 699, 701 (1939)). Because he does not claim to be an employee of Wal-Mart, a fortiori, he has no claim to permanent-employee status, so as to restrict the manner in which Wal-Mart may deal with him.

In short, neither Smitherman, nor Justice Johnstone in his special writing, can answer Wal-Mart’s argument that it had an unqualified right to deny him access to its premises to service its account with Merita. Justice Johnstone’s special writing alludes to the testimony of a certain Wal-Mart official, who suggested that Wal-Mart had a “policy [to] hear both sides of a situation.” 872, So.2d at 843 (testimony of Paxton) (emphasis omitted). On the basis of such testimony, Justice Johnstone proposes that Wal-Mart voluntarily assumed a duty to conduct a good-faith investigation of the incident. From this proposition, Justice Johnstone leaps to the conclusion that Wal-Mart had a duty not to ban Smitherman if he was not in the wrong. His special writing simply ignores the dispositive issue, namely, the source, if any, of the restriction it seeks to impose on Wal-Mart’s unqualified legal right-to refuse to deal with Smitherman.

The implications of Justice Johnstone’s special writing are most troubling. Under the rule he would adopt, an employer could transform its relationship with an employee from at-will to permanent, simply by admitting .that it aimed to treat its employees fairly as a matter of policy. Such a principle is not, and should not be, the law in Alabama. For these reasons, the trial court erred in submitting the negligence and wantonness claims to the jury.

B. Slander

Counts-two and three allege that Wal-Mart and Paxton falsely accused Smither-man “of stealing a loaf of bread.” Wal-Mart argues that it is not liable for slander, because, it says, the statement made by Paxton that Smitherman tried to leave the store with an empty bread bag without crediting Wal-Mart for the bread is a true statement.

Easterling, the receiving clerk, testified that she told the head invoicing clerk, Lorie Lopez, that Smitherman had tried to leave the store with an empty bread bag without crediting Wal-Mart for the price of the loaf of bread. Lopez then told one of the managers of its food department, Joe Paxton, the same. Paxton told his superior, store manager Vanessa Withrow, that, while Easterling was working as a receiving clerk, Smitherman had tried to leave the store with an empty bread bag without crediting Wal-Mart for the price of the loaf of bread. Following Withrow’s instruction, Paxton telephoned Wal-Mart’s district manager and Wal-Mart’s district loss-prevention manager, and discussed the incident with them. Paxton told them that Smitherman had tried to leave the store with an empty bread bag without giving Wal-Mart credit. Paxton, Withrow, the district manager, and the loss-prevention manager then decided to ban Smither-man as a deliveryman. Paxton then told Maddox, Smitherman’s supervisor at Meri-ta, that Smitherman was banned from delivering to any Wal-Mart store because he had tried to leave the Supercenter with an empty bread bag without crediting Wal-Mart for the price of the loaf of bread.

Maddox, Smitherman, and Meri-ta’s district sales manager McDaniel each testified that a vendor’s charging a customer for merchandise, but leaving the store with the merchandise and without crediting the customer for the merchandise, constitutes vendor theft. They testified that Wal-Mart and Paxton had accused Smitherman of theft. While neither Maddox nor McDaniel believed that Smith-erman had stolen a loaf of bread, they placed Smitherman on another delivery route, requiring him to work longer hours for less money. Smitherman admitted that, as he was leaving the Supercenter, Easterling found an empty bread bag in one of his trays and asked him to give Wal-Mart credit for the bread. Further, Smitherman admitted that he had not given Wal-Mart the credit before he left the store. .

“The elements of a cause of action for defamation are: 1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.”

McCaig v. Talladega Publ’g Co., 544 So.2d 875, 877 (Ala.1989). “Truth is an absolute defense to defamation.... ” Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934, 937 (Ala.1986). Dispositive of the slander claim is the issue of truth as an absolute defense.

The only allegedly defamatory statements the evidence proves that any Wal-Mart employee uttered were to the effect that Smitherman had tried to take an empty bread bag out of Wal-Mart without crediting Wal-Mart with the price of the loaf of bread. Although Maddox and McDaniel might have construed those statements as accusing Smitherman of committing a crime of theft, the statements were true and therefore not actionable. Foley, supra. Therefore, Wal-Mart and Paxton were entitled to a JML on the slander claims.

C. Tort of Outrage

Counts three and four allege that the defendants intentionally inflicted emotional distress on Smitherman by committing outrageous conduct against him.

“[0]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme.... By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. ...”

American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980) (emphasis added).

The conduct of Wal-Mart, Paxton, and Easterling does not meet the Inmon definition of outrageous conduct. Indeed, the tort-of-outrage claim is predicated solely on their exercise of what we described in Part III.A. of this opinion as an unqualified right. In Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986), for example, this Court said:

“[I]t would be intolerable in a civilized society to hold that an employer is guilty of outrageous conduct for merely discharging an employee at will. That is what the plaintiff is asking this Court to do, for the termination is not for a reason which contravenes public policy, and there is no evidence that the termination was accompanied with the sound of fury.”

Id. at 1387 (emphasis added). The same is true in this case, to the extent that Smith-erman’s relationship with Wal-Mart was analogous to employment. There is no evidence or contention that Smitherman’s change in status with Wal-Mart was accompanied by anything approximating “the sound of fury.” The trial court erred, therefore, in submitting the tort-of-outrage claim to the jury.

IV. Conclusion

For the reasons discussed above, Wal-Mart, Paxton, and Easterling were entitled to a JML on all Smitherman’s claims. Consequently, the judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs in part and concurs in the result.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

LYONS, Justice

(concurring in part and concurring in the result).

I accept the premise that Wal-Mart, Paxton, and Easterling voluntarily assumed a duty to Smitherman to conduct a fair and reasonable investigation. I cannot treat that duty as binding Wal-Mart, Pax-ton, and Easterling to a course of action if the result of such investigation would have exonerated Smitherman.

Smitherman’s claim is predicated on a right to insist that Wal-Mart, Paxton, and Easterling, after a thorough investigation, had the additional duty to abide by the results of that investigation if they were favorable to him. In Wyatt v. BellSouth, Inc., 757 So.2d 403, 407 (Ala.2000), this Court held that where an employer has the right to discharge an employee for any reason, a promise to conduct a due-process hearing before any discharge does not prevent the employer from discharging the employee without cause at the conclusion of the hearing. Although Smitherman did not have an employer/employee relationship with Wal-Mart, I cannot distinguish Wyatt on that ground because I do not see how Wal-Mart should owe a duty to the employee of a contractor that it would not owe to one of its own employees.

I concur fully in the majority opinion’s disposition of the claims of slander and the tort of outrage.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the Court’s reversal of the judgment for Ross Smitherman and its holding that Wal-Mart, Paxton, and East-erling are entitled to a judgment as a matter of law on Smitherman’s negligence and wantonness claims and on his tort-of-outrage claim. However, I dissent from the judgment as a matter of law for Wal-Mart and Paxton as to Smitherman’s slander claim.

The Court concludes that the statements made by Wal-Mart employees to Smither-man’s superiors at Merita did not constitute slander because they were true statements, and “[tjruth is an absolute defense to defamation.” Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934, 937 (Ala. 1986). The “true” statements at issue were that Smitherman left the store with an empty bread bag without crediting Wal-Mart with the price of the loaf of bread.

However, both Smitherman’s supervisor and Merita’s district sales manager testified that those statements amounted to accusations of .“vendor theft.” “Vendor theft” occurs when a vendor charges a customer for merchandise and then leaves the store with the merchandise without crediting the customer for the merchandise. In this case, the vendor was Merita; the customer was Wal-Mart. By stating that Merita’s employee Smitherman attempted. to leave the store with an empty bag of bread without crediting Wal-Mart for the bread, Wal-Mart personnel accused Smitherman of stealing from Wal-Mart.

That the statements in question amounted to a theft accusation is obvious from what happened after Wal-Mart employees related the incident to their supervisors, who then related the incident to Smither-man’s superiors. Wal-Mart banned Smitherman from delivering to any of its stores, and Merita reassigned Smitherman to a less lucrative delivery route as a result of the accusatory statements. Ultimately, the facts demonstrated that Smitherman did not steal from Wal-Mart, but rather that the bread bag had always been empty and that it had never been charged to Wal-Mart’s account. Thus, while Smither-man did attempt to leave Wal-Mart without giving the store credit for the bread, the store was never entitled to a credit; therefore, Smitherman committed no wrong.

Despite this, the Court explains its finding that the statements do not amount to slander by observing that the statements may have been “construed ... as accusing Smitherman of committing a crime of theft, [but] the statements were true and therefore not actionable.” 872 So.2d at 840. However, the statements by the Wal-Mart employees are akin to a store owner’s telling a policeman that someone left the store with a package without paying for it. The obvious meaning is that the person stole the package. Until the parties learn that the customer owned the package before he entered the store, the consequences for the accused party can be dire. In reality, the statement is half true rather than true, because the accuser has not provided the full context for the statement.

At times, a half-truth can be the equivalent of an untruth, particularly when spread in the form of an accusation, which was the case here. Wal-Mart’s accusations, while not using the word “theft,” amounted to false allegations of theft by Smitherman. Adverse consequences for Smitherman resulted from the false accusations, the very definition of slander. See McCaig v. Talladega Publ’g Co., 544 So.2d 875, 877 (Ala.1989). To find that the statements were true and to excuse Wal-Mart and Paxton on the basis of semantics involves an intentional evasion of the obvious import of those statements for everyone who heard them. The statements constituted slander; therefore, I must dissent from the reversal of the judgment on this claim.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

The main opinion takes the insupportable position that Wal-Mart could not voluntarily undertake a duty it did not otherwise owe and could not voluntarily relinquish a prerogative it otherwise had. Legally it could, and factually it did, as this writing will demonstrate.

I respectfully dissent from the rationale and holding to the effect that the trial court erred in denying the defendants’ motions for a judgment as a matter of law as they apply to the plaintiffs claims for negligence and wantonness against Wal-Mart and its “food co-manager” Joe Paxton. Substantial evidence supports the inference that Wal-Mart voluntarily undertook a duty it otherwise would not have owed and, through Paxton and other employees, negligently and even wantonly breached that duty by banning the plaintiff from delivering bread to Wal-Mart.

The plaintiff, in Count Six as last amended, alleged that he was damaged as a proximate result of the negligence or wantonness of Wal-Mart and Paxton “in failing to investigate and/or follow the necessary policies and procedures to evaluate the incident at issue.” (Emphasis added.) As actually tried to the jury, the plaintiffs theory was that Wal-Mart voluntarily undertook a policy and procedure, as a duty owed to the plaintiff, to investigate the incident and to heed the results of the investigation.

The plaintiff has never claimed that he was an employee of Wal-Mart or that Wal-Mart was his employer. The plaintiff has never claimed that Wal-Mart owed him any duty based on any employment relationship. Therefore, the discussion in the main opinion about employment law and the employment-at-will doctrine is in-apposite. If that discussion is intended as an analogy, even the analogy fails because the employer can voluntarily relinquish its employment-at-will prerogative to discharge the employee without cause, see Hoffman-La Roche v. Campbell, 512 So.2d 725 (Ala.1987), much as any party can voluntarily undertake a duty the party would not otherwise owe, Spriggs v. Compass Bank, 742 . So.2d 178, 181 (Ala.Civ. App.1997), Beasley v. MacDonald Engineering Co., 287 Ala. 189, 194, 249 So.2d 844, 848 (1971), and Rudolph v. First Southern Federal Savings & Loan Association, 414 So.2d 64, 71 (Ala.1982). Of course, just as the issues of employment at will are not before us, the issues and requisites of Hoffmam-La Roche are not before us.

In the case before us, the plaintiff introduced the testimony of managerial employees of Wal-Mart itself to prove the duty to the plaintiff voluntarily undertaken by Wal-Mart. Paxton himself testified:

“Q. Did you feel that it was your duty as the manager to go through certain steps and research the situation and contact the vendor before terminating the vendor from coming into Wal-Mart?
“A. Certainly. It is our policy or our belief that you should hear both sides of a situation, not automatically assume that the Wal-Mart associate is correct. But you need to listen to both sides of the scenario.”

(R. 201-02.) (Emphasis added.) Likewise, Roger Smith, the district loss prevention manager for Wal-Mart, testified:

“Q. As the district loss prevention manager for Wal-Mart, how would you instruct one to investigate this situation?
“A. I would instruct them, first, he needs to get with the receiving clerk and the bread vendor, which he should have been involved with when it occurred. The receiving clerk should have called a member of management. And he would have been involved with it at that point. If he had been involved with it at that point, he would know most of the facts and he would just need to further question the bread vendor and contact their supervisor.
“Q. Would he need to talk to the delivery person at some point? Let’s say he didn’t come down. Would he need to talk to that person?
“A. That would be the bread vendor, yes, ma’am.
“Q. When you say bread vendor, you’re not talking about the company, you’re talking about the delivery—
“A. Person, yes, ma’am.
“Q. Then you also said they need to contact the supervisor?
“A. His supervisor, the bread vendor’s supervisor, and anybody else that may have been in the area that may have heard the conversations.
“Q. Would you say that he had a duty to do these investigations, these steps of investigation that you just talked about?
“A. Absolutely.
“Q. Would you say that he had an obligation or a duty to the bread vendor to do this type of investigation?
“A. Yes.”

(R. 313-14.) (Emphasis added.)

Smith identified Paxton specifically as one Wal-Mart employee responsible for performing this duty to.the plaintiff. (R. 313.) The evidence of record is abundant that Wal-Mart and Paxton, knowing that banning the plaintiff from delivering bread to Wal-Mart would damage him, conducted no responsible investigation and banned the plaintiff for refusing to credit Wal-Mart for bread that had never been put into the empty bread bag and had never been charged to Wal-Mart in the first place."

The main opinion ridicules the conclusion that a duty to investigate entails a concomitant duty to heed the results of the investigation. This ridicule is like the logic of people who call radio talk shows to declaim that a defendant should be “given a fair trial and a good hanging” regardless of the verdict.

The plaintiff now before us is supported not only by logic but by express testimony. The testimony of Paxton himself, already quoted, that he owed a duty to “research the situation,” and to “hear both sides” “before terminating the vendor from coming into Wal-Mart ” supports a reasonable inference by the jury that Wal-Mart intended the relation between the investigation and any termination to be causal rather than merely sequential.

The evidence is sufficient to support the plaintiffs negligence and wantonness theories. This Court should not instruct the trial court to enter judgment as a matter of law against the plaintiff on his claims on these theories.

I express no opinion on the rationale and holding of the main opinion to the effect that the trial court erred in denying the defendants’ motions for judgment as a matter of law as they apply to the plaintiffs slander claims. I concur only in the result of the holding to the effect that the trial court erred in denying the defendants’ motions for judgment as a matter of law as they apply to the plaintiffs outrage claims. I do not subscribe to the hyperbole about the employment-at-will doctrine quoted by the main opinion from Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1387 (Ala.1986). Because nobody claims any employment relationship in the case before us, this hyperbole merely exacerbates the confusion the main opinion has already caused by arguing employment law and ignoring the law and evidence supporting the plaintiffs claims against Wal-Mart and Paxton for negligence and wantonness in breaching a duty voluntarily undertaken.

      . The parties do not apprise this Court of the precise nature of the business relationship between Wal-Mart and Merita. It is clear, however, that the only contractual relationship evident in this case is the one between Smitherman and Merita.


author: THOMPSON, Judge.

text:
    Severiano Rios BENITEZ et al. v. Jeffrey A. BECK et al.
    2020671.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2003.

      Allen R. Stoner, Decatur, for appellants.
    Charles R. Hare, Jr., and Christopher F. Abel of Gullahorn & Hare, P.C., Albert-ville, for appellees.
   THOMPSON, Judge.

On June 14, 2000, Severiano Rios Beni-tez and seven other plaintiffs (hereinafter referred to collectively as “the plaintiffs”) sued Jeffrey and Christie Beck (“the defendants”), and Freedom Financial Services, Inc. (“FES”), in the Marshall Circuit Court (“the trial court”), alleging fraud, conspiracy to defraud, and misrepresentation. On August 22, 2000, FFS was-dismissed by the plaintiffs. On October 12, 2000, the trial court dismissed the case for a failure to prosecute the claim; the plaintiffs moved to have that order set aside, and the trial court granted that motion on November 3, 2000. On April 12, 2001, the trial court granted the defendants’ motion to dismiss all of the plaintiffs except Sever-iano Rios Benitez and Manuella Rios Beni-tez; the plaintiffs filed a “motion to reconsider” that order. Following a change in legal counsel, the plaintiffs filed an amended complaint alleging additional facts and a fraudulent-suppression claim.

On August 2, 2002, the defendants moved to enforce a settlement agreement; the plaintiffs opposed that motion. On December 18, 2002, the trial court entered an order enforcing the settlement agreement. The plaintiffs filed a postjudgment motion, which the trial court denied. The plaintiffs timely appealed.

The trial court did not hold an ore tenus hearing. The following facts were taken from the parties’ pleadings and their briefs on appeal.

The plaintiffs’ complaint arose out of a purchase of real estate from the defendants. The plaintiffs hired Robert W. Hanson to serve ’ as their attorney; the defendants were represented by Charles Hare. According to the briefs on appeal, Hanson and Hare engaged in a series of negotiations in an attempt to settle this action. On January 2, 2002, Hanson sent Hare a letter stating:

“I thought we basically had this case settled in October; however, apparently I was in error. I need some dates to depose Jeff and Christie Beck. My clients will still settle for $10,000, however that is to be paid in cash and not through any credits on any indebtedness the plaintiffs may owe to Freedom Financial.”

On January 18, 2002, Hare sent Hanson a letter stating:

“This will confirm our conversation of January 15, 2002, wherein we agreed to settle all of your clients’ claims against our clients for $10,000, payable by February 15, 2002. I am enclosing a proposed release for execution by your clients and a proposed stipulation and judgment of dismissal to be signed by you and me dismissing the pending case with prejudice. When you have the release and stipulation fully executed, please let me know and I will obtain [a] check made payable to you as attorney for all eight clients.”

On February 5, 2002, Hanson withdrew as the attorney for the plaintiffs. According to the defendants’ brief on appeal, before withdrawing, Hanson informed Hare that one of the plaintiffs had reneged on the settlement agreement. In a letter to the plaintiffs dated January 24, 2002, Hanson stated that he was withdrawing as their legal counsel because of a “conflict of interest” involving the settlement agreement.

In their opposition to the defendants’ motion to enforce the settlement agreement, the plaintiffs alleged that a settlement was not reached with the defendants. The plaintiffs argued that Hare’s letter on behalf of the defendants specifically states that the check would be delivered when the release was executed and returned to his office; the plaintiffs did not sign or execute the proposed release, and the defendants never delivered the check to the plaintiffs or to Hanson. The plaintiffs averred that neither they nor the defendants had performed according to the alleged settlement agreement; the record on appeal contains an unsigned copy of the alleged settlement agreement. The plaintiffs also alleged that they did not give Hanson authority to enter into settlement negotiations or a settlement agreement.

In their postjudgment motion, the plaintiffs alleged that there had not been a meeting of the minds between them and the defendants, and they reiterated that they had not given Hanson express or implied authority to enter into settlement negotiations or to accept any offer of settlement on their behalf. '

The affidavit of Manuella Benitez was attached to the plaintiffs’ postjudgment motion. In her affidavit, Manuella states that she and Severiano rely upon an interpreter, because neither of them writes or speaks English. Manuella states that Eva Patterson, her interpreter at the time of the settlement negotiations, called her with news of the defendants’ $10,000 settlement offer. According to Manuella, she expressly rejected the offer because she had not authorized Hanson to engage in settlement negotiations. In the affidavit, Manu-ella testified that she was not aware of the proposed settlement agreement until she received the January 24, 2002, letter from Hanson.

Patterson’s affidavit was also attached to the plaintiffs’ postjudgment motion. Patterson states that Hanson telephoned her with the defendants’ $10,000 settlement offer. Patterson contacted Manuella the same evening with the offer, which, she states, Manuella rejected. Within the next week, Patterson telephoned Hanson and informed him of Manuella’s decision to reject the offer. According to Patterson, Hanson stated that if the plaintiffs did not accept the $10,000 offer, they “might not get anything.”

In its December 18, 2002, order, the trial court determined that the plaintiffs’ argument that Hanson “had been without authority to enter into any final settlement agreement with the defendants” was not legally sufficient; The trial court also found that the plaintiffs had not -alleged that the settlement was obtained through fraud, accident, or mistake. The trial court held that, at the time of the settlement, the April 12, 2001, order “dropping” six of the eight plaintiffs was not a final judgment. Therefore, the trial court ordered the defendants to pay the $10,000 settlement amount to all eight plaintiffs, and it dismissed the plaintiffs’ claims against the defendants.

The question on appeal is whether Hanson, the attorney for the plaintiffs who negotiated the alleged settlement agreement, was authorized to negotiate and enter into a binding settlement on behalf of the plaintiffs. The plaintiffs contend that Hanson lacked such authority, and, therefore, they argue, they are not bound by any agreement made by him with the defendants. The parties have acknowledged that settlement agreements entered into by attorneys are governed by § 34-3-21, Ala.Code 1975, which provides:

“An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.”

■ However, that statute is not dispositive of the issue on appeal. This court has summarized the authority of an attorney to compromise his client’s claim as follows:

“ ‘An attorney cannot settle a client’s action or claim or prejudice a client’s rights without authorization from the client. The power to compromise a demand does not arise from the power to sue or from an attorney’s general authority which is usually limited in both duty and authority to the vigilant prosecution or defense of the rights of the client. The authority to settle is not-incidental, but it is essential that an attorney have express, special authority from his client to do so. A person dealing with an attorney must ascertain the extent of the attorney’s authority to compromise the client’s claim. “An attorney employed to represent a litigant in the prosecution or defense of a suit is a special agent of his client and has no implied or inherent authority or right to compromise and settle it.” An agent’s apparent authority must be founded upon the conduct of the principal and not upon the conduct of the agent.’ ”

Warner v. Pony Express Courier Corp., 675 So.2d 1317, 1320 (Ala.Civ.App.1996) (quoting Daniel v. Scott, 455 So.2d 30, 32-33 (Ala.Civ.App.1984) (quoting in turn Crawford v. Tucker, 258 Ala. 658, 663, 64 So.2d 411, 416 (1953))). (Emphasis added.)

“ ‘[A] judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry.’ ” Blackwell v. Adams, 467 So.2d 680, 684-85 (Ala.1985)(quoting Bradford Exch. v. Trein’s Exch., 600 F.2d 99, 102 (7th Cir. 1979)). Whether an attorney has the authority to settle a case on behalf of his client is always a question of fact. Blackwell v. Adams, supra. Where a trial court does not make an express finding of a particular fact, this court will assume that it found the fact necessary to support its judgment unless the finding of fact would be clearly erroneous and against the great weight of the evidence. Jones v. Stedman, 595 So.2d 1355 (Ala.1992).

In its order, the trial court made no express finding that Hanson had the authority to enter into a settlement on behalf of the plaintiffs. Because the trial court did not hold a hearing and did not hear testimony or receive evidence in this matter, it could not have made a finding of fact that Hanson had the “express, special authority” to bind the plaintiffs to the settlement agreement. Warner v. Pony Ex press Courier Corp., 675 So.2d at 1320. While there is evidence that Hanson and Hare might have negotiated a settlement, there is no evidence in the record that the plaintiffs gave Hanson their express authority to bind them to that settlement agreement.

Although this issue is dispositive of the appeal, it is not the only question of fact that needs to be addressed upon remand to the trial court. The plaintiffs have also argued that there was no “meeting of the minds” between the defendants and them, that there were no mutual letters confirming any settlement, and that the terms of the alleged settlement agreement were not followed. If the trial court determines on remand that Hanson had the authority to bind the plaintiffs to a settlement agreement, the trial court must then resolve whether an actual settlement agreement was reached by the parties. The trial court’s order is reversed and this cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ., concur.

      . The other named plaintiffs were Severiano’s wife, Manuella Rios Benitez; Jamie Rios Ben-itez; Maria Epifania Benitez; Miguel A. Gas-par; Delores P. Gaspar; Francisco' Martin Juan; and Angelina F. Juan.