author: KING, P.J., for the Court:

text:
    BYRD BROTHERS, LLC Appellant, v. Bobby HERRING d/b/a Herring Electrical and Plumbing, Appellee.
    NO. 2002-CA-00935-COA
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Robert P. Chamberlin, Hernando, Attorney for Appellant.
    Omar D. Craig, Oxford, Attorney For Appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P.J., for the Court:

¶ 1. The Lafayette County Circuit Court entered judgment, in the amount of $ 9, 937.05, for Bobby Herring d/b/a Herring Electrical and Plumbing against Byrd Brothers, LLC on an open account pursuant to Mississippi Code Annotated Section 11-53-81. Byrd Brothers’ counter-claim, which alleged breach of contract and slander of title by Herring Plumbing, was disr-missed. Aggrieved, Byrd Brothers perfected its appeal and raised several issues. This Court finds what was identified as issue III, to be dispositive of this case. This Court has restated that issue as:

•I. Whether Byrd Brothers was required to allow Herring to repair defective work, and if so was Herring given the opportunity to repair defective items ?

FACTS

¶ 2. Byrd Brothers, LLC is a construction company based in DeSoto County, Mississippi; its principals are three brothers, Tim,. Terry, .and Billy Byrd. Bobby Herring d/b/a/ Herring Plumbing and Electric is an electrical and plumbing company based in Pontotoc County, Mississippi. Byrd Brothers contracted with Herring to perform plumbing work on Sage Meadows, a condominium complex located on Anderson Road in Lafayette County, Mississippi. The contract called for Herring to be paid $1,980 per unit for the plumbing work, including all labor and materials, but not fixtures, in fourteen condominiums at Sage Meadows. This sum was to be .paid in three installments. Herring and his crew began work on the units in February of 2000 shortly after the contract was signed.

¶ 3. Not long after work began, problems developed between the parties. Initially, the parties disagreed over whether “plumbing” as used in the contract included installation of gas and gas fixtures. Byrd contended that it did, while Herring contended that it did not. The parties resolved this issue by an agreement that Byrd would pay Herring $100 per gas opening installed, with the exception of the first four units, in which Herring agreed to install gas free of charge.

¶ 4. Tim Byrd’s daily monitoring of the work at Sage Meadows was also a source of discord. Tim Byrd requested that Herring Plumbing correct some items which were done improperly, such as vent pipes on water heaters, pipes and stub-outs that were “off a little bit,” and the flashing of the vents. Tim Byrd also raised questions with Bobby Herring about the installation of “look alike” fixtures and a general shoddiness of work. Herring’s reaction was to tell Byrd that he was “being too picky.” After constantly having these problems brought to his attention by Tim Byrd, some of the problems were fixed. This caused a further deterioration of the relationship. Recognizing this deterioration, Tim Byrd and Billy Byrd called Bobby Herring after the first phase of the condominiums was completed to discuss how things were going. According to Byrd, Herring promised that things would get better if Herring Plumbing were allowed to finish the next phase of the condominiums.

¶ 5. Billing problems also surfaced between the parties. During phase three of the project, Bobby Herring submitted a set of invoices to Tim Byrd and requested immediate payment. Byrd stated that he could not make “heads or tails,” of the invoices, and therefore requested that Herring submit invoices for each unit. Within an hour, Herring revised the invoices and was issued a check for the requested sum. Later, Tim Byrd checked the invoices and discovered what he felt was some double billing and bill padding. He then issued a stop payment order on the check.

¶ 6. About this same time, Herring Plumbing was asked off the job site by Billy Byrd. Later, Tim Byrd called Bobby Herring to discuss concerns about the quality of the work and to request that Herring Plumbing return to correct the problems and complete the balance of the work. Bobby Herring declined to even discuss a return to the job unless Byrd was prepared to immediately pay him some money. When Byrd insisted that they should at least sit down and discuss the work, Herring declined to do so and chose not to return.

¶ 7. Herring filed suit in the Circuit Court of Lafayette County against Byrd Brothers seeking damages of $21,836.77.

¶ 8. Byrd Brothers filed a counter-claim for damages it suffered due to Herring’s defective workmanship. Byrd Brothers alleged that it would have owed Herring Plumbing $9,937.05 if it had properly performed the contract. However, Byrd Brothers contends that it was required to spend approximately $14, 580.95, in mitigation of damages due to Herring’s defective work and it was therefore owed $4,621.25 by Herring.

¶ 9. Byrd Brothers employed William Sloane to correct and complete Herring’s work. Sloane testified that all licensed plumbers are required to comply with the Southern Building Code, and that Herring’s work did not comply with the code. Among the failures identified by Sloane were some toilets that were loose and had to be taken up and reset, because they rocked from side to side, tub spouts that were too far from the wall, which had to be removed and replaced, and the placement of plastic drain pans under the water heaters.

¶ 10. Byrd Brothers also offered the testimony of Mike Chaney, a plumbing expert. According to Chaney, Herring’s workmanship was generally shoddy and inconsistent. Among the examples of defective workmanship noted by Chaney were the following: stub-outs for installing commodes done incorrectly, making it impossible to set the commodes level, rough-ins which did not fit plan dimensions, improper openings for shower fixtures, and cedar chips placed under the commode to keep it level.

¶ 11. Using a videotape and photographs, Chaney pointed out specific examples of shoddy workmanship by Herring. He noted that the sealant mandated by the code to prevent leaks was not used in at least one apartment. Because the piping in the other apartments had been enclosed in the wall, he offered no testimony about them. Chaney pointed out the use of plastic pans, rather than metal, under the water heaters, in direct violation of the code. Chaney pointed out cracked concrete caused by Herring’s having to take up and reset a commode which was not level, “look alike” fixtures, rather then the contractually specified Delta fixtures, and water heater vent pipes in contact with the wood behind the heater.

¶ 12. In viewing the video, Bobby Herring acknowledged that some of Herring Plumbing’s work failed to meet mandatory code requirements.

¶ 13. On July 2, 2002, the trial judge entered judgment in favor of Herring Plumbing and Electric against Byrd Brothers in the amount of $9,937.05. This was the amount that Byrd Brothers submitted that it would have owed Herring had he completed the work; however, this amount was never contended as damages by Herring. The trial judge in his opinion stated “because the defendant failed to offer or allow the Plaintiff the opportunity to correct any deficiencies, the Defendant is not entitled to any offset or deduction.” Aggrieved by this decision Byrd Brothers perfected its appeal.

ISSUE AND ANALYSIS

Whether Byrd Brothers was required to allow Herring to repair defective work, and if so was Herring given the opportunity to repair defective items ?

¶ 14. This Court’s applicable standard of review is found in Amerson v. State, 648 So.2d 58, 60 (Miss.1994): For findings of a trial judge sitting without a jury, this Court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong. “A judge sitting without a jury has sole authority for determining credibility of the witnesses.” Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987).

¶ 15. A party who has breached or failed to properly perform a contract has a responsibility and a right to cure the breach. Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So.2d 324, 328 (Miss.1988). The non-breaching party must give him a reasonable opportunity to cure the breach. Id. However, the right to cure is not unlimited. Rester v. Morrow, 491 So.2d 204, 210 (Miss.1986).

¶ 16. Where the breach is a material one, the non-breaching party has a right to end the contract, UHS-Qualicare, Inc., UHS of the Gulf Coast, Inc., and Qualicare Sub., Inc., et al. v. Gulf Coast Cmty. Hosp., Inc., et al., 525 So.2d 746, 756 (Miss.1987), but in doing so he is also obligated to minimize his damages. Fitzner Pontiac-Buick-Cadillac, Inc., 523 So.2d at 328. Likewise, when the conduct of the breaching party has been of such a nature as to cause a loss of confidence or “shaken faith,” the offended party is entitled to end the contract, Rester v. Morrow, 491 So.2d 204, 210 (Miss.1986), but he remains responsible for mitigating damages.

¶ 17. The record before this Court indicates that Herring was given the opportunity to cure his breach of contract. Tim Byrd was at the construction site on a daily basis identifying contractual breaches and inviting Herring to cure them. Rather than exercising his right and obligation to cure, Herring would gripe and claim that Byrd Brothers was “being too picky.” Herring’s conduct led to such a deterioration of the working relationship, that his workers were asked to leave the job site. When contacted by Tim Byrd to return to work, correct the problems and complete the contract, Herring declined.

¶ 18. The relationship was further exacerbated when Byrd Brothers questioned what it perceived to be Herring’s double billing and over billing.

¶ 19. Clearly, Herring was given several opportunities to cure his repeated contractual breaches, but did not do so. Having given Herring a reasonable opportunity to cure, Byrd Brothers was entitled to, and obligated to move forward and mitigate damages. Fitzner Pontiac-Buick-Cadillac, Inc., 523 So.2d at 328.

¶ 20. As the trial court correctly found, Herring was entitled to compensation for work done under the contract. However, the trial court incorrectly measured Herring’s entitlement. The trial court awarded Herring the balance of the contract price. What Herring was entitled to was the balance of the contract price less the reasonable costs of mitigation of damages incurred by Byrd Brothers. The Sumrall Church of the Lord Jesus Christ v. Johnson, 757 So.2d 311, 313(¶ 3) (Miss.Ct.App.2000).

¶ 21. Finding error, we reverse and remand for a new trial. Our disposition of this issue renders moot the other issues raised on appeal.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS ARE TAXED TO THE AP-PELLEE.

McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

author: WOODALL, Justice. MOORE, Chief Justice WOODALL, Justice. HOUSTON, Justice LYONS, Justice

license: Public Domain

text:
    Ex parte HURRICANE FREDDY’S, INC., et al. (In re Hurricane Freddy’s, Inc., et al. v. Darrell D. Smith et al.)
    1010643.
    Supreme Court of Alabama.
    Sept. 27, 2002.
    Order Overruling Rehearing Jan. 24, 2003.

      Mary Beth Mantiply of Mantiply & Associates, Montrose, for petitioners.
    W. Donald Bolton, Jr., and Oliver J. Latour, Jr., Foley, for respondents.
   WOODALL, Justice.

The Baldwin Circuit Court, after a non-jury trial, entered a judgment for the plaintiffs, Darrell D. Smith and Hooks Catfish, Inc., d/b/a Hooks Catfish Restaurant (“Hooks Catfish”), and against the defendants, Hurricane Freddy’s, Inc., Chris Ybarra, and Frank Martin, in the amount of $63,711.41. The defendants appealed to this Court, which transferred the case to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7(6).

The Court of Civil Appeals affirmed the judgment of the trial court, without an opinion. Hurricane Freddy’s, Inc. v. Smith, (No. 2000282, October 12, 2001) 852 So.2d 851 (Ala.Civ.App.2001) (table). After the Court of Civil Appeals denied the defendants’ application for rehearing, this Court granted certiorari review to determine whether that court’s decision conflicts with prior decisions of this Court.

This fraud case was the subject of an earlier appeal. See Smith v. Hurricane Freddy’s, Inc., 708 So.2d 174 (Ala.Civ.App.1997). In that opinion, the Court of Civil Appeals adequately stated the facts underlying this dispute, and we see no need to repeat those facts here. In that earlier appeal, the Court of Civil Appeals reversed a judgment for the defendants, and remanded the case for the trial court “to enter a judgment of liability against the defendants, to determine the damages to be awarded Smith and Hooks Catfish, and to make an award of damages.” 708 So.2d at 178. This appeal follows the trial court’s award of damages.

The trial court entered its judgment after a hearing where oral testimony was presented. The ore tenus standard of review is well established:

“ ‘[W]e will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.’ Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). However, the ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness. As this Court has held, ‘when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993).”

Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)(opinion on return to second remand).

The Court of Civil Appeals earlier remanded this case for an award of damages because it concluded that “Smith and Hooks Catfish were damaged as a proximate result of Smith’s relying on the false representation. They were left with the choice of closing the restaurant or continuing to operate despite the risk of having to close at any time.” Smith, 708 So.2d at 178 (emphasis added). Therefore, on remand, the trial court was to determine the damages sustained by Smith and Hooks Catfish as the proximate result of their choosing to close their restaurant.

Fraud-action plaintiffs are entitled to recover damages proximately resulting from their reliance upon the false representation. Patel v. Hanna, 525 So.2d 1359, 1360 (Ala.1988). Of course, “expenses incurred as a result of fraudulent misrepresentation may be recovered. A party may recover all damages which were within the contemplation of the parties or which were necessary or natural and proximate consequences of the fraud. C. Gamble and D. Corley, Alabama Law of Damages §§ 17-1, 36-32 (1982).” Marshall Durbin Farms, Inc. v. Landers, 470 So.2d 1098, 1102 (Ala.1985). However, a fraud-action plaintiff cannot recover for losses where “no connection was made between [those] losses and the alleged misrepresentations made by the defendants.” Rooney v. Southern Dependacare, Inc., 672 So.2d 1, 5 (Ala.1995).

The prior appeal established that Smith and Hooks Catfish were damaged when, as a proximate result of Smith’s relying on the defendants’ false representation, Smith and Hooks Catfish chose to close the restaurant. Under those circumstances, they are entitled to recover only those damages, including expenses, that naturally and proximately resulted from the closing of the restaurant. However, it is undisputed that the trial court, in determining the damages to be awarded Smith and Hooks Catfish, considered the operating income of the restaurant, as well as its operating expenses, many of which Smith and Hooks Catfish had received the full benefit of before they decided to close the restaurant. In doing so, it is clear that the trial court improperly applied the law to the facts; therefore, the Court of Civil Appeals erred in affirming its judgment.

The judgment of the Court of Civil Appeals is reversed, and this case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J., dissent.

MOORE, Chief Justice

(dissenting).

This Court bases its reversal on its conclusion that the trial judge misapplied the law to the facts, enabling it to dispense with the ore tenus presumption that normally accompanies such a decision.

“Under the ‘ore tenus rule,’ a presumption of correctness accompanies the trial court’s judgment when it has made findings of fact based on oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence.”

Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 12-13 (Ala.1989).

However, the facts of the case dictate the exact legal conclusion reached by the trial court. The majority relies upon a statement in the earlier Court of Civil Appeals’ opinion to the effect that Smith and Hooks Catfish “were left with the choice of closing the restaurant or continuing to operate despite the risk of having to close at any time.” Smith v. Hurricane Freddy’s, Inc., 708 So.2d 174, 178 (Ala.Civ.App.1997). The majority then concludes that the only damages available to Smith and Hooks Catfish are the costs of closing the restaurant — not the costs of operating the restaurant.

In that same opinion, though, the Court of Civil Appeals summarized the facts that underlie the trial court’s award of damages in this case:

“[Darrell Smith and his wife Linda] told Walker [a real-estate agent] that they would be interested in purchasing Hurricane Freddy’s only if they could sell farm-raised catfish there and if they could change the name to Hooks Catfish Restaurant. The Smiths made a written offer to assume the lease and to purchase the assets of the business ‘contingent on Buyer being able to serve freshwater catfish.’ During the negotiations concerning the purchase of Hurricane Freddy’s, the Smiths say, Ybarra and Martin [the owners of Hurricane Freddy’s] represented to them that the landlord had approved the Smiths’ request to change the menu and the name of the restaurant. The Smiths say that, in reliance upon the representation that the landlord had agreed to allow their requested changes, they decided to purchase the business.”

708 So.2d at 175-76 (emphasis added). It turned out that the landlord had not approved the changes in the menu and the change in the name of the restaurant and refused to allow the Smiths to continue to operate the restaurant with those changes. Consequently, the Smiths were left with the choice mentioned above: “closing the restaurant or continuing to operate despite the risk of having to close at any time.” 708 So.2d at 178. Not surprisingly, the Smiths chose to close the restaurant and to sue for the damages caused by the misrepresentation.

Thus, the facts dictate, and the Court of Civil Appeals specifically recognized, “that Smith would not have purchased Hurricane Freddy’s without the assurance that he could change the menu and the name.” 708 So.2d at 178. In other words, the Smiths never would have opened and operated the restaurant but for the fraud. Therefore, the recovery of the operating costs of the restaurant rightfully were included in the damages awarded on the misrepresentation claim. “A party may recover all damages which were within the contemplation of the parties or which were necessary or natural and proximate consequences of the fraud.” Marshall Durbin Farms, Inc. v. Landers, 470 So.2d 1098, 1102 (Ala.1985). The Smiths’ operation of the restaurant and the costs that that operation entailed were a proximate result of the misrepresentation by the defendants and were considered by the trial court to be a natural consequence of the fraud.

The fact that the Court of Civil Appeals, on return to remand, affirmed the damages award and did not read their original opinion to have the same effect this Court does only confirms that the trial court’s application of the law to the facts was correct. Thus, because the trial court properly applied the law to the facts in this case, its judgment is entitled to deference and the Court of Civil Appeals correctly affirmed that judgment. Therefore, I dissent.

JOHNSTONE, J., concurs.

On Application for Rehearing

WOODALL, Justice.

APPLICATION OVERRULED.

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

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

HOUSTON, Justice

(dissenting).

I am convinced that I erred when I concurred with the original opinion. I am now convinced that Judge Partin got it right: damages equal the costs of going into business — less receipts from the business' — -less receipts from the sale of purchased property (increased to show actual value when the sales price was found to be too low). I think we should grant the rehearing, reverse our position, and affirm without opinion.

LYONS, Justice

(dissenting).

Although I did not vote in this case on original submission, I have been persuaded by the application for rehearing and I respectfully dissent from the denial of rehearing. The opinion issued by the majority on original submission parses the earlier opinion of the Court of Civil Appeals, which remanded the case for a determination of damages, Smith v. Hurricane Freddy’s, Inc., 708 So.2d 174 (Ala.Civ.App.1997), and then pins its reasoning to the reference in the Court of Civil Appeals’ opinion to Smith and Hooks Catfish’s “choice of closing” the restaurant. 708 So.2d at 178. I read the Court of Civil Appeals’ reference to the “choice of closing” the restaurant in juxtaposition with the words “or continuing to operate despite the risk of having to close at any time,” which immediately follow the choice-to-close language. Id. In other words, the language expresses with clarity the Hobson’s choice Smith and Hooks Catfish faced; it is not a limitation on damages. No such narrow language appears in the paragraph of the opinion dealing with the instructions on remand. The trial court did not err in computing damages.

I cannot accept the majority’s reasoning that it was improper to consider operating expenses in calculating damages because Smith and Hooks Catfish received the full benefit from operating the restaurant prior to closing. Such an analysis overlooks the impact of the full credit undisputedly given to the lessors by Smith and Hooks Catfish, in their calculation of damages, for all sums earned in the business, all sums returned, and all sums collected for equipment sold.


author: PITTMAN, Judge.

text:
    HURRICANE FREDDY’S, INC., et al. v. Darrell D. SMITH et al.
    2000282.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    Mary Beth Mantiply of Mantiply & Associates, Montrose, for appellants.
    W. Donald Bolton, Jr., Foley; and Oliver J. Latour, Jr., Foley, for appellees.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

The Alabama Supreme Court has reversed this court’s October 12, 2001, affirmance, without opinion, of the trial court’s judgment, and has remanded the case. Ex parte Hurricane Freddy’s, Inc., 861 So.2d 1075 (Ala.2002). In compliance with the Alabama Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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


author: JOHNSTONE, Justice. MOORE, Chief Justice

text:
    Ex parte Jesse W. COLEMAN and Vera F. Coleman. (In re Jesse W. Coleman and Vera F. Coleman v. Jerry Higginbotham et al.).
    1010644.
    Supreme Court of Alabama.
    March 14, 2003.

      LeRoy Alan Cobb, Anniston, for petitioners.
    S. Dale Price, Sylacauga, for respondents.
   JOHNSTONE, Justice.

This Court granted the petition for a writ of certiorari filed by Jesse W. Coleman and Vera F. Coleman to review the record to determine whether an alleged subsequent oral agreement between Vera Coleman as pledgor and Leigh Moore acting for her employer The Money Tree Outlet, Inc., as pawnbroker, modified a previously made written contract in the form of a pawn ticket. The Colemans’ only meritorious claim of the existence of an oral modification of a contract is based on an alleged December 5,1999 oral agreement between Vera and Leigh Moore acting for The Money Tree.

Procedural Facts

On January 21, 2000, the Colemans sued The Money Tree, Moore, and Jerry Higginbotham (another employee of The Money Tree) for conversion, fraud, conspiracy, breach of contract, and the tort of outrage. The Colemans alleged that The Money Tree wrongfully took possession of their 1995 Cadillac automobile, which the Colemans had pawned to The Money Tree. The Colemans asserted that the defendants had, by oral agreement, extended for 30 more days the December 5, 1999 maturity date of the last pawn ticket entered between The Money Tree and Vera and that the defendants had prematurely and wrongfully taken possession of the car before the expiration of that extended maturity date, January 4, 2000.

The defendants moved for summary judgment on the ground, among others, that the pawn ticket specifically prohibited oral agreements to extend the maturity-date of the pawn. The defendants also argued, without submitting any proof, that they did not make any oral agreement to extend the maturity date of Vera’s last pawn. Relying on Floyd v. Title Exchange & Pawn of Anniston, Inc., 620 So.2d 576 (Ala.1993), the defendants further argued that possession of the endorsed certificate of title to the Colemans’ car by The Money Tree constituted constructive possession of the Colemans’ car by The Money Tree and, therefore, that the defendants could not have wrongfully taken possession of the Colemans’ car. While the record contains, as one of the Colemans’ exhibits, a photocopy of the face of the Colemans’ certificate of title, the record does not reveal any endorsement to The Money Tree. In support of the defendants’ motion for summary judgment, the defendants submitted only the pawn tickets executed by the Colemans together and the pawn tickets executed by Vera alone.

In opposition to the summary judgment motion, the Colemans submitted an affidavit sworn by Vera. The Colemans also submitted the records maintained by The Money Tree of each pawn transaction between The Money Tree and the Colemans together or Vera alone.

After a hearing, the trial court entered summary judgment in favor of the defendants. The Colemans moved to alter, to amend, or to vacate the judgment. This motion was denied by operation of law. The Colemans timely appealed, and the Court of Civil Appeals affirmed without an opinion. Coleman v. Higginbotham, (No. 2000563, December 7, 2001) 852 So.2d 852 (Ala.Civ.App.2001) (table).

Substantive Facts

Beginning in May 1999, the Colemans together and then Vera singly entered into a series of pawn transactions with The Money Tree. The Colemans initially borrowed $500 and pawned the title to their 1995 Cadillac. In June 1999, the Cole-mans borrowed an additional $500 (for a total borrowed principal of $1,000) and re-pawned the title to their Cadillac. Thereafter, the Colemans together and then Vera singly repawned their car each month, with the agreement of The Money Tree, by paying the interest accrued for the particular month and by signing a new pawn ticket containing the terms of the pawn transaction. Each pawn ticket provided, in pertinent part:

“The pawnbroker can sell or keep the item if not redeemed by the specified maturity date. The length of the pawn transaction is 30 days and it can only be repawned with the agreement of both parties and only for 30 day incremental periods. This pawn transaction has a grace period of 30 calendar days following the maturity date of the transaction. In the event the last day of the grace period falls on a day in which the pawnbroker is not open for business, the grace period shall be extended through the first day following upon which the pawnbroker is open for business.
“Verbal agreements for additional days are not binding.
“This pawn transaction has a grace period of 30 calendar days when pawning a motor vehicle.” (Some emphasis original and some emphasis added.)

On November 4, 1999, with the agreement of The Money Tree, Vera again repawned the Colemans’ car in writing. The maturity date of that pawn ticket, as expressly entered in writing on that pawn ticket, was December 5,1999. The 30-day grace period for that written pawn transaction extended through January 4, 2000.

Vera testified by affidavit in pertinent part as follows:

“2. On or before December 5, 1999, I called Leigh Moore at [The Money Tree] and told her that I was going to be short on the $250.00 that I needed to renew my pawn with her company.... I told Ms. Moore that I could make a double payment when I got my check in January. Ms. Moore told me that would be fine, just to be sure that I was there on or before January 4, 2000.
“4. On Monday January 3, 2000, I received my Social Security check late in the afternoon. I called Ms. Moore and told her that I could come over that evening and bring her the $500.00 that I owed to renew my pawn. Ms. Moore said it was already getting late and they were preparing to close [The Money Tree], to just bring the money tomorrow.
“5. Before 12:00 p.m. on January 4, 2000, my husband and I drove to [The Money Tree] to renew my pawn. I handed Ms. Moore my Social Security check in the amount of $519.00 to pay the $500.00 I needed to renew my pawn. As she started to take my check, Jerry Higginbotham asked her to step back into the office where they had a conversation out of my hearing. When they returned from the office, Mr. Higginbotham said he had already repossessed my car and refused to take the $500.00 payment. He told me it would take $1600.00 to pick the car up within the next ten (10) days. I again asked him to take the $500.00 and let me take the car back with me that day....
“7. On or about January 5, 2000, I returned to [The Money Tree], where I again asked Mr. Higginbotham to take the $500.00 and let me have my car back. He again refused....
“8. A couple of days after January 5, 2000, I called Mr. Higginbotham on the telephone and again implored him to take the $500.00 and to let me have my car back until my loan came in that was scheduled to do so in a few days. At that time he told me he had already sold my car to [a] man in Moody, Alabama. “9. On January 13, 2000, I returned to [The Money Tree] and offered Ms. Moore and Mr. Higginbotham $1600.00 cash and demanded the return of my automobile. They refused to accept the $1600.00 and refused to return the automobile. On that date, the automobile was parked in [The Money Tree] parking lot.”

The Money Tree maintained records for each of the pawn transactions entered by the Colemans together and then Vera singly. The records for the November 4, 1999 pawn transaction bear the notation, in pertinent part: “1-4 Repo’d ear.” The expression 1-4, which appears in the date column of the records, means January 4, 2000.

Issues, Law, and Analysis

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Authority, 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the non-moving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). If substantial evidence in the record supports a cognizable claim pleaded by the plaintiff, the defendant is not due a summary judgment on that claim, even if the record also contains substantial countervailing evidence. See Hollingsworth v. City of Rainbow City, 826 So.2d 787 (Ala.2001); McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140 (Ala.2001); Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).

The Colemans argue that on December 5, 1999 Vera and Moore (acting for The Money Tree) orally agreed to extend Vera’s title pawn which matured on that day for another 80 days on the condition that Vera pay a $500 double interest payment by January 4, 2000. Citing Duncan v. Rossuck, 621 So.2d 1318, 1315 (Ala.1993), the Colemans argue that, although the pawn ticket expressly prohibits “[v]er-bal agreements for additional days,” the December 5 oral agreement between Vera and Moore extending the maturity date of Vera’s title pawn is enforceable.

The defendants contend that the pawn ticket specifically prohibits oral agreements “granting [the Colemans] additional days to redeem the[ir] pawn.” Brief, p. 18. Although the defendants contend that the Alabama Pawnshop Act, § 5-19A-1 et seq., Ala.Code 1975, governs the Colemans’ pawn transactions, the defendants did not argue below and they do not argue here that the Pawnshop Act requires a written contract between a pled-gor and a pawnbroker. Similarly, although the defendants’ summary judgment motion itself denies the existence of an oral agreement between Vera and Moore extending the maturity date of Vera’s pawn,

“ ‘[m]otions and arguments of counsel are not evidence.’ ‘[Statements in motions are not evidence and are therefore not entitled to evidentiary weight.’ ‘[BJriefs submitted in support of motions are not evidence to be considered by the Court in resolving a summary judgment motion.’ ”

Fountain Finance, Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (citations omitted). The only evidentiary material in the record on appeal consists of the pawn tickets executed by the Colemans together, the pawn tickets executed by Vera alone, the records maintained by The Money Tree, and Vera’s affidavit testimony.

Duncan holds:

“[U]nder Alabama law a written agreement may be modified by a subsequent oral agreement of the parties, unless some statutory provision provides otherwise. Hall v. Integon Life Insurance Co., 454 So.2d 1338 (Ala.[1984]). This is so even where the contract contains a requirement that all modifications be in writing. Commercial Contractors, Inc. v. United States & Guaranty Co., 524 F.2d 944 (5th Cir.1975) (applying Alabama law).”

Duncan, 621 So.2d at 1315 (emphasis added). Accord Maddox v. Wescott, 156 Ala. 492, 496, 47 So. 170, 171 (1908):

“Although consent to subrent is required by the contract to be given in writing, this is for the benefit of the lessors; and it seems to be a well-established principle that it may be waived by parol, and that, if parol consent is established to the reasonable satisfaction of the court or jury trying the cause, it will work a waiver of the stipulation requiring written consent.”

The rule allowing proof of an oral modification notwithstanding a requirement that all changes to a contract must be in writing is based upon the premise that a party who has included such a provision in a contract for that party’s benefit can certainly waive that provision. Id. Proof of an oral modification therefore serves not only as proof of the modification itself but also as proof of a waiver of the requirement for a writing. Maddox. Accordingly, after entering a pawn transaction and memorializing it in a written pawn ticket which expressly provides that oral modifications are not binding, the pledgor and the pawnbroker can, nonetheless, effectively orally modify the terms of the pawn ticket.

The pawn tickets signed by the Cole-mans together and then by Vera singly expressly provide that a pledgor may re-pawn a vehicle in 30-day increments by agreement. Vera and Moore’s oral extension of the December 5,1999 maturity date of Vera’s pawn transaction to January 4, 2000 in a 30-day increment would comply with the 30-day-increment requirement in the pawn ticket.

The defendants do not argue that they could repossess the Colemans’ car on or before the maturity date of a pawn transaction. Nor do the defendants argue that they could repossess the Colemans’ car during the 30-day grace period following the maturity date of a pawn transaction. Instead the defendants argue that they did not repossess the Colemans’ car until after the grace period ended. The defendants argue that the repossession date was January 5, 2000. However, Vera’s affidavit testimony and the January 4, 2000 notation on the records maintained by The Money Tree are substantial evidence that The Money Tree repossessed the Colemans’ car on January 4, 2000, which was (1) the last day of the original grace period of the last pawn ticket (the November 1999 pawn ticket) as originally written, (2) the orally extended maturity date of that pawn transaction, and (3) the day before the beginning of the consequent new 30-day grace period.

To establish a breach-of-contract claim, a plaintiff must show “ ‘(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ ” State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995) (citations omitted)). Vera’s affidavit testimony is substantial evidence of the existence of a December 5,1999 oral agreement between herself and The Money Tree extending the maturity date of Vera’s last pawn ticket to January 4, 2000. Even if the defendants had submitted evidence disputing the existence of this oral extension, such countervailing evidence would not eliminate the Colemans’ showing on this issue and therefore would not defeat the Colemans’ opposition to summary judgment as it applies to this issue.

The Colemans presented substantial evidence that Vera tendered the required $500 double interest payment on the orally agreed January 4, 2000 date. The defendants’ repossession of the Cole-mans’ car on January 4, 2000 would constitute a breach of the alleged and evidentiar-ily supported December 5 oral agreement. Therefore, the trial court erred in entering summary judgment in favor of the defendants on the Colemans’ breach-of-contract claim, and the Court of Civil Appeals erred in affirming the summary judgment in favor of the defendants on the Colemans’ breach-of-contract claim.

“To establish conversion, a plaintiff must show a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property.” Birmingham-Jefferson County Transit Auth. v. Aryan, 669 So.2d 825, 828 (Ala.1995) (emphasis added). Relying on Floyd v. Title Exchange & Pawn of Anniston, Inc., 620 So.2d 576 (Ala.1993), the defendants argue that they already constructively possessed the Cole-mans’ car and that, therefore, they could not have converted the Colemans’ car. Their reliance on Floyd is inapposite. First, Floyd does not adopt the Floyd trial judge’s opinion that a pawnbroker’s possession of the keys and an endorsed title certificate to a car constitutes the pawnbroker’s constructive possession of the car itself. Second, the record does not contain substantial evidence that the defendants before us possessed an endorsed title certificate, much less the keys, to the Cole-mans’ car. Third, Floyd does not hold that a pawnbroker can legally repossess a pledgor’s vehicle on or before the maturity date of a pawn transaction or that a pawnbroker can legally repossess a pledgor’s vehicle within the 30-day grace period following the maturity date of the pawn transaction. Floyd holds only that “an automobile certificate of title is ‘tangible personal property’ within the meaning of the Alabama Pawnshop Act,” and that “money-lending transactions involving the transfer of automobile certificates of title for the purpose of giving security are ‘pawn’ transactions.” Blackmon v. Downey, 624 So.2d 1374, 1376 (Ala.1993) (footnote omitted).

The Colemans presented substantial evidence that the defendants wrongfully took the Colemans’ car, or wrongfully interfered with the Colemans’ car, Arvan, supra, during the 30-day extended term of their pawn transaction with The Money Tree. Therefore, the trial court erred in entering summary judgment in favor of the defendants on the Colemans’ conversion claim and the Court of Civil Appeals erred in affirming the summary judgment on the Colemans’ conversion claim.

The Court of Civil Appeals correctly affirmed the summary judgment in favor of the defendants on the Colemans’ fraud and tort-of-outrage claims. Accordingly, we affirm the portion of the judgment of the Court of Civil Appeals affirming the summary judgment on the Colemans’ fraud and tort-of-outrage claims. We reverse that portion of the judgment of the Court of Civil Appeals affirming the summary judgment on the Colemans’ breach-of-eon-tract and conversion claims. We remand this cause to the Court of Civil Appeals for it to remand the cause to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MOORE, C.J., concurs in the result.

MOORE, Chief Justice

(concurring in the result).

I concur with the Court’s affirming the trial court’s summary judgment for the defendants on the plaintiffs’ fraud and tort-of-outrage claims. I must also concur in its reversing the summary judgment for the defendants on the plaintiffs’ conversion and breach-of-contract claims, because the defendants apparently did not present any evidence supporting their claim that no oral modification of the loan agreement occurred. Had the defendants presented such evidence, then the summary judgment on those claims could have been sustained.


text:
    Jesse W. COLEMAN and Vera F. Coleman v. Jerry HIGGINBOTHAM et al.
    2000563.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    LeRoy Alan Cobb, Anniston, for appellants.
    S. Dale Price, Sylacauga, for appellees.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

This court, on December 7, 2001, affirmed the trial court’s judgment, without an opinion. The Alabama Supreme Court has affirmed this court’s judgment insofar as it relates to the Colemans’ fraud and tort-of-outrage claims and has reversed this court’s judgment insofar as it relates to the Coleman’s breach-of-contract and conversion claims, and has remanded the cause. Ex parte Coleman, 861 So.2d 1080 (Ala.2003). In compliance with the Alabama Supreme Court’s opinion, that portion of the trial court’s judgment relating to the Colemans’ breach-of-contract and conversion claims is reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED IN PART AND REMANDED.

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


author: BROWN, Justice.

text:
    HUGHES BEVERAGE COMPANY, INC. v. Louise HUGHES, as personal representative of the estate of Ravee Norris Hughes, deceased; et al.
    1010926.
    Supreme Court of Alabama.
    April 18, 2003.
    Susan S. Wagner and W. Patton Hahn of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham, for the appellant Hughes Beverage Company, Inc.
    George A. Monk of Brooks, Harmon & Monk, LLC, Anniston; and Carla Cole Gilmore of Kaufman & Rothfelder, Montgomery, for appellee Louise Hughes, as personal representative of the estate of Ravee Norris Hughes, deceased.
    Kenneth J. Mendelsohn and Thomas E. James of Jemison, Mendelsohn & James, P.C., Montgomery, for Mays Jemison, Mike Jemison, Jack Shallop, Sonny Cone, Don Motes, and Kenneth Mendelsohn.
   BROWN, Justice.

The plaintiff in this declaratory-judgment action, Hughes Beverage Company, Inc., petitioned, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the denial of its motion for a summary judgment. This Court exercised its discretion and granted Hughes Beverage Company permission to appeal. However, after thoroughly reviewing the record and the arguments presented by the parties, we conclude that the permission to appeal under Rule 5, Ala. R.App. P., was improvidently granted, and we dismiss the appeal. State v. Bassett, 364 So.2d 1175 (Ala.1978).

APPEAL DISMISSED.

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


author: PER CURIAM.

text:
    ALFA LIFE INSURANCE CORPORATION v. Robert HUGHES et al.
    1011091.
    Supreme Court of Alabama.
    April 25, 2003.

      Connie Ray Stockham and James M. Smith of Stockham & Stockham, P.C., Birmingham; M. Christian King and Stephanie Keller Womack of Lightfoot, Franklin & White, LLC, Birmingham; and W. Scears Barnes, Jr., of Barnes & Radney, P.C., Alexander City, for appellant.
    Ted Taylor, Leah 0. Taylor, Tracy T. Sproule, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appel-lees.
   PER CURIAM.

Alfa Life Insurance Corporation (“Alfa”) appeals from a class-certification order obtained by Robert Hughes, Donald Cline, Tom Dake, and Patti Dake, present policyholders of Alfa life-insurance policies (hereinafter referred to collectively as “the plaintiff policyholders”). We vacate the class-certification order and remand.

I. Factual Background

The plaintiff policyholders purchased “Whole Life 110” insurance policies from Alfa; the policies were purchased through the “minimum-deposit” payment plan option. The plaintiff policyholders filed a class-action complaint alleging fraudulent misrepresentation, suppression, breach of contract, and negligence and/or wantonness. Specifically, the plaintiff policyholders allege (1) that Alfa induced the plaintiff policyholders to purchase the policies by making fraudulent misrepresentations to them about the payment of the premiums, (2) that Alfa suppressed material information regarding the minimum-deposit payment plan, (3) that Alfa breached its insurance contracts with its policyholders who were using the minimum-deposit payment plan, and (4) that Alfa was negligent and/or wanton in training and supervising its agents and in handling the policies placed on the minimum-deposit payment plan.

At the time the minimum-deposit payment plan was created, the Internal Revenue Service allowed a deduction for consumer-loan interest. Under the minimum-deposit payment plan, a pohcyholder paid premiums on the pohcy out-of-pocket for at least four of the first seven years, depending on several factors including the age and tax bracket of the insured. The plan then allowed a pohcyholder to pay the insurance premiums by borrowing against the cash value of the pohcy. The interest the pohcyholder paid' on the pohcy loans could be deducted from the policyholder’s federal income tax. However, in order for the interest to be tax deductible, the borrowed funds had to pass into the hands of the pohcyholder. Therefore, the insurer would issue, as a loan on the pohcy, a check to the pohcyholder in the amount of the premium due, and the pohcyholder then would issue a personal check to the insurer to pay the premium.

Alfa began training its agents to offer the minimum-deposit payment plan as one of its payment options. Before Alfa offered the minimum-deposit payment plan, an' Alfa pohcyholder had two payment options — a pohcyholder either could make continuous premium payments throughout the life of the pohcy or could choose the early stop premium option (“ESP”). William B. Harper, senior vice president of life and loan operations for Alfa, explained the ESP option:

“The policyholder[s] paid their premiums for the specified number of years to [early stop premium payment on] the pohcy. The pohcy had to be set up where the dividends were used to purchase paid-up additions of life insurance, which is one of the dividend options under this pohcy contract. After they had paid the specified number of years of premiums then they could request to put the pohcy on ESP, and at such time [Alfa] would start surrendering part of the paid-up additions of life insurance and using that cash value to continue to pay the premiums going forward to keep the pohcy in force.”

The minimum-deposit payment plan, a variation of the ESP option, which incorporated pohcy loans as opposed to the use of dividends to pay premiums, was introduced as a third payment option. In its brief to this Court, Alfa included a portion of the materials it used to train its agents in offering the minimum-deposit payment plan, which described the plan as follows:

“The minimum deposit plan means a concept or method of financing the purchase of cash value life insurance, after meeting certain premium payment requirements, through borrowing from the cash value of the pohcy to pay premiums and by qualifying the interest payments made on the loans for a deduction on the owner’s income tax return. The word plan does not mean plan in the sense of an insurance product, rather it is a concept of paying premiums of a cash value life insurance product.
“If the borrowing is done pursuant to the rules established by the Internal Revenue Service and the caselaw established by the courts is not interpreted to disallow it, the interest paid on the poh-cy loans should be an allowable interest deduction on the individual’s tax return.”

Alfa contends that its training materials and training ■ sessions “clearly explained that loans against the cash value were utilized in the minimum deposit payment plan.” Alfa’s Brief at p. 29. However, the parties dispute the uniformity of the training and supervision Alfa provided its agents to explain the minimum-deposit payment plan. We therefore address the factual circumstances surrounding the plaintiff policyholders’ individual purchases of a Whole Life 110 policy using the minimum-deposit payment plan.

A. Robert Hughes

Hughes owns and operates a family business as a sole proprietorship. Alfa agent Robert Frazure made a “cold call” to Hughes seeking to sell him a policy, and on October 28, 1982, Hughes purchased a Whole Life 110 policy with a face amount of $75,000 from Frazure. Hughes testified that Frazure showed him the policy and some brochures and told him that he “could pay premiums on [the policy] for four years and then the premiums would be paid from the interest that this money accrued.” Hughes also stated that Fra-zure showed him “some kind of breakdown” relating the policy to Hughes’s age and other information. Hughes’s insurance application indicated that he chose to utilize the automatic premium loan option, which provided that if Hughes failed to timely pay a premium, then an automatic loan would be taken against the cash value in an amount sufficient to cover the policy premium due.

Hughes paid the premiums for over four years, and in January 1987, his wife sent a note to Alfa requesting that the policy be placed on the minimum-deposit payment plan. Alfa then sent Hughes a letter acknowledging that his policy had been placed on the minimum-deposit payment plan and also sent him a check representing the loan amount. Alfa requested that Hughes forward to it a personal check in the same amount as the enclosed check to be applied toward his annual premium. Thereafter, Alfa received sporadic payments from Hughes. Whenever Hughes did not send in a premium payment, an automatic premium loan was used to pay his premium. Alfa sent notices to Hughes explaining the use of the loans. Hughes testified that he did not receive any of the notices.

Dave O’Neal, the district manager for Alfa, met with Hughes in June 1994 to discuss the minimum-deposit payment plan. O’Neal testified that he understood from his Alfa training that loans on the policy would be used to pay the premiums and that he explained this payment method to Hughes. Hughes’s policy is still in force, and the current death benefit is greater than $90,201.

B. Donald Cline

Cline has a degree from a technical college; he is a production controller at an army depot. On December 29, 1983, Cline purchased a Whole Life 110 policy with a face value of $50,000 from Alfa agent John Scott. Scott and Cline previously knew each other because Scott was Cline’s high school football coach.

Cline testified that Scott told him that he could pay the premiums on the policy for four years and that then “the dividends will pay the premiums on the policy.” Cline later testified that he could not remember whether Scott told him that dividends or interest would pay the premiums. Cline’s application for the insurance was marked to indicate that he chose the minimum-deposit payment option; however, Cline did not ask when he purchased the policy what choosing that option meant. Cline’s application was also marked to indicate that he chose the automatic premium loan option. Cline testified that he thought Scott had showed him some documents, possibly an illustration and a copy of the policy. However, Cline also testified that he did not rely upon any of the documents when he purchased the policy.

Scott testified that he understood from his training at Alfa that at a certain point loans on the policy amounts would pay the premiums on the Whole Life 110 policies, and he testified that he explained to Cline that Cline would pay the premiums out-of-pocket for four years and that a loan on the policy would pay the premiums thereafter.

After paying his premiums out-of-pocket for four years, Cline telephoned Scott to inquire whether his premiums would begin to be paid out of the cash value of his policy. Scott told Cline that he would have to pay the premiums for six years, not four. Scott testified that two years later he showed Cline an illustration explaining the minimum-deposit payment plan, and at Cline’s request his policy was placed on the minimum-deposit payment plan. Alfa sent notices to Cline stating that his annual premium had been paid by a policy loan; however, Cline testified that he was “not sure” whether he received all notices each year. Cline did acknowledge that he received annual statements reflecting that his premium was due. Cline said that when he received those statements, he would telephone Scott, who would then tell Cline that he did not need to pay the premiums because they were being paid by loans. Cline’s policy is still in force, and it now has a death benefit in excess of $64,885.

C. Tom Dake and Patti Dake

Tom Dake has a bachelor’s degree in accounting and a master’s degree in business administration. In March 1983, the Dakes purchased a Whole Life 110 policy with a face amount of $75,000 from Alfa agent Neil Lord. Tom Dake and Lord knew each other because they had been classmates in a master-of-business-administration program.

Tom Dake testified that Lord told him that he could pay premiums for an undetermined period and that the policy would then “sustain itself from that period forward.” Tom Dake also testified that Lord told him that the period during which he would pay premiums would depend on Alfa’s earnings and the dividends Alfa paid on the policy. Lord provided Tom Dake with a spreadsheet and his own handwritten notes, in which Lord had written that after the tenth year the policy would become self-sustaining by virtue of its dividends. Lord, who is no longer associated with Alfa, testified that he did not inform the Dakes that the minimum-deposit payment plan used policy loans because he was not trained to describe the plan in such a manner.

The Dakes paid premiums for six years. Patti Dake testified that in February 1989 Lord told her that at that point the policy had become self-sustaining and that she needed to sign some paperwork relating to the self-sustaining aspect of the policy. Although the Dakes did not specifically submit a form requesting the minimum-deposit payment plan, Patti Dake signed a consent form, which provided that the premiums would be paid with the proceeds of the policy by an automatic premium loan. Patti Dake testified that she did not remember this transaction. According to Alfa, the Dakes received loan checks from Alfa; however, the Dakes did not use the loan proceeds to pay the premiums on their policy. Alfa also claims that the Dakes were sent notices indicating that their premiums were being paid by automatic loans as well as notices that explained the dividend and loan interest aspects of the policy. Tom Dake testified that he did not understand the notices and that he disregarded them because his agent told him to do so. The Dakes’ policy is still in force and it has a death benefit in excess of $92,004.

After the plaintiff policyholders purchased their policies and arranged to pay their premiums pursuant to the minimum-deposit payment plan, the Tax Reform Act of 1986 phased out the deduction for interest on consumer loans. Pub.L. No. 99-514, 100 Stat.2085 (1986). The plaintiff policyholders contend that this change in the tax laws eliminated the benefits of the minimum-deposit payment plan. On April 2, 1999, the plaintiff policyholders filed their complaint, and on September 21, 2000, they filed a motion for class certification.

A class-certification hearing was held on March 19, 2001. No witnesses testified at the hearing. On January 23, 2002, the trial court entered an order striking 14 of the affidavits the plaintiff policyholders presented as evidence of Alfa’s alleged misrepresentations. However, based upon the parties’ briefs, other exhibits, and arguments at the hearing, the trial court concluded that the plaintiff policyholders met the requirements of Rule 23(a) and 23(b)(3), Ala. R. Civ. P. The trial court certified the following class:

“Every present or former Alfa policyholder who purchased a Whole Life 110 policy that has been placed on the Minimum Deposit Option or any beneficiary who received death benefits under a Whole Life 110 policy that had been placed on the Minimum Deposit Option.”

The trial court excluded from the class “officers, agents or employees of Alfa or any entity in which Alfa has a controlling interest and members of their immediate family and the legal representatives, heirs, successors-in-interest or assigns of any excluded party.”

Alfa appeals pursuant to § 6-5-642, Ala. Code 1975, which authorizes an immediate appeal of a class-certification order.

II. Standard of Review

“This Court applies an abuse-of-discretion standard of review to a trial court’s class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class.” Smart Prof'l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1248 (Ala.2002); Compass Bank v. Snow, 823 So.2d 667 (Ala.2001).

If the plaintiff policyholders failed to meet the evidentiary burden as required by Rule 23, Ala. R. Civ. P., then we must vacate the class-certification order. Smart, 850 So.2d at 1252. The plaintiff policyholders must establish all of the criteria required in Rule 23(a) and one of the criteria set forth in Rule 23(b). Ex parte Gold Kist, Inc., 646 So.2d 1339, 1341 (Ala.1994). Rule 23(a) provides:

“(a) 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.”

The additional Rule 23(b) criteria relied upon in the class-certification order states that the plaintiff policyholders have proven that common questions of law or fact predominate over questions affecting individual members and that the class action is superior to other available methods for adjudicating the controversy. We must determine, therefore, whether the trial court exceeded the permissible limits of its discretion in certifying the class and whether it applied the correct legal standard in reaching its decision to certify the class.

III. Analysis

Alfa argues that the certification of the class of plaintiff policyholders is improper for several reasons. Because we conclude that the proof essential to support the plaintiff policyholders’ claims of misrepresentation, suppression, breach of contract, and negligence and/or wantonness does not satisfy the predominance and superiority requirements of Rule 23(b)(3), we preter-mit a discussion of the other issues raised by Alfa.

A. Predominance

“The predominance requirement ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Reynolds Metals Co. v. Hill, 825 So.2d 100, 104 (Ala.2002) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Rule 23(b)(3) provides that a class action may be maintained if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.... ” To determine whether common issues of law or fact predominate in this case, the trial court must examine the plaintiff policyholders’ causes -of action and consider “ ‘what value the resolution of the class-wide issue will have in each class member’s underlying cause of action.’ ” Reynolds Metals, 825 So.2d at 104 (quoting Rustein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1234 (11th Cir.2000)). In order to meet the requirement of predominance, the plaintiff policyholders “have the burden of presenting sufficient proof that common questions of law or fact predominate over individual claims.” Smart, 850 So.2d at 1249; § 6-5-641, Ala.Code 1975.

i. Fraudulent-Misrepresentation and Suppression Claims

In its certification order, the trial court recognized this Court’s reluctance to certify a class action involving allegations of fraud and suppression; however, it concluded that the plaintiff policyholders met their burden of proving the predominance of common issues regarding their fraudulent-misrepresentation and suppression claims:

“Whether common issues of fact predominate over individual issues regarding the class members’ misrepresentation and suppression claims is a more difficult issue. Alfa contends that it is impossible to know what each insured was told about his or her minimum deposit policy, and that the issue of each person’s reliance requires an individualized inquiry. Alfa further argues that class treatment is inappropriate because each policyholder’s claimed damages would have to be evaluated individually.
“[The plaintiff policyholders] respond to Alfa’s contentions by asserting that there were no material variations in the representations given each class member. Almost all of the minimum deposit policyholders were provided illustrations generated by Alfa which represented that dividends, and not loans, would pay future premiums. The verbal misrepresentations, according to the [plaintiff policyholders], were consistent with these illustrations. [The plaintiff policyholders] allege that the suppression claim is also suitable for class treatment because Alfa had a corporate policy of nondisclosure regarding the minimum deposit option. Plaintiffs aver that this uniform failure to disclose is appropriate for class treatment.
“This Court is very aware of our Supreme Court’s reluctance to allow certification of fraud and suppression claims. See, e.g., Ex parte AmSouth Bancorporation, 717 So.2d 357 (Ala.1998); Butler v. Audio/Video Affiliates, Inc., 611 So.2d 330 (Ala.1992). Yet this Court is also aware that there is no blanket prohibition against the certification of a fraud class action. See Ex parte Household Retail [Sew.] Inc., [744 So.2d 871, 881 (Ala.1999)]. The determinative issue is whether there was a material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed. Id. at 881, citing Advisory Committee Notes to [Fed.] R. Civ. P.[, Rule] 23(b)(3) (on 1966 amendments to rules).
“This Court has reviewed the materials submitted by the parties and listened carefully to the arguments of counsel at the class certification hearing. [The plaintiff policyholders] have submitted substantial proof that there was no material variation among the oral statements made to the class and that no material variation existed between the oral statements and written illustrations. Ex parte Household Retail [Serv.] Inc., [744 So.2d at 878], citing Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 724 (11th Cir.1987); Grainger v. State Sec. Life Ins. Co., 547 F.2d 303, 307 (5th Cir.1977).
“It is also significant to this Court that this case, having been filed after March 14, 1997, is governed by the reasonable reliance standard. [The plaintiff policyholders] are not required to prove class members’ reliance according to a subjective standard; the objective standard described in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983), is the standard upon which the class members’ reliance can be compared. Cf. Ex parte Household Retail [Serv.] Inc., [744 So.2d at 882], Because of the applicability of this objective standard, it will be unnecessary to conduct individualized inquiries into each class member’s reliance.
“Due to [the plaintiff policyholders’] evidence presented this Court finds that [the plaintiff policyholders] have met their burden of proving the predominance of certain issues. [The plaintiff policyholders] have offered convincing evidence that representations made by Alfa agents throughout the State were virtually identical because these agents were trained uniformly and were required to utilize uniform sales illustrations. See In re Prudential Ins. Co. of America [Sales Practices Litigation], 962 F.Supp. 450 (D.N.J.1997); In re New England [Mut.] Life [Ins. Co.] Sales Practices Litigation, 183 F.R.D. 33 (D.Mass.1998); Security Life of Denver Ins. Co. v. Ferguson, [Ms. 05-98-01738-CV, May 28, 1999] (Tex [Ct.] App. 1999) [not designated for publication], Alfa will undoubtedly present evidence at trial tending to rebut [the plaintiff policyholders’] proof. Such evidence simply frames issues of fact to be resolved by the jury and in no way undercuts the manageability of the class action procedure.
“The fact that class members may have sustained various degrees of damage also will not render a class action unmanageable. Varying damage levels rarely prohibit a class action if the class members’ claims possess factual and legal commonality. Mayer v. Mylod, 988 F.2d 635, 640 (6th Cir.1993). This Court can certainly design procedures to resolve the issue of damages. See, e.g., Arthur Young & Co. v. United States Dist. Ct., 549. F.2d 686, 693-94 (9th Cir.1977).”

(Emphasis added.)

Alfa claims that the plaintiff policyholders have failed to meet their burden of proving the predominance of common issues of law or fact regarding their fraudulent-misrepresentation claim because, it says, they presented inconsistent testimony of the alleged oral and written misrepresentations by the Alfa agents. Alfa claims that without questioning each class member to determine what questions each class member asked and how each Alfá agent responded to those individualized questions the plaintiff policyholders cannot show that, the misrepresentations were uniform. Moreover, Alfa contends that each class member’s individual reliance precludes the treatment of the fraudulent-misrepresentation claim as a class action.

The plaintiff policyholders argue that the trial court correctly concluded that individualized testimony is not necessary because, they argue, the misrepresentations of the Alfa agents were uniform. According to the plaintiff • policyholders, the class-wide liability issues will focus upon Alfa’s management-directed scheme to make misrepresentations and omissions.

To establish the elements of fraudulent misrepresentation the plaintiff policyholders must show: “(1) that the representation was false, (2) that it concerned a material fact, (3) that [they] relied on the false representation, and (4) that actual injury resulted from that reliance.” Boswell v. Liberty Nat'l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994); § 6-5-101, Ala.Code 1975. We have recognized the difficulties posed by the certification of a class when a claim of misrepresentation is involved, with numerous representations and varying degrees of reliance. Ex parte Green Tree Fin. Corp., 723 So.2d 6, 10 n. 2 (Ala.1998). Even if numerous representations have a “common core,” an action may still be unsuited for class-action treatment if material variations exist in the representations or if the degree of reliance varies among the persons to whom the representations were made. Green Tree, 723 So.2d at 10 n. 2 (citing the committee comments, Rule 23(b)(3), Fed.R.Civ.P.).

In Ex parte Household Retail Services, Inc., 744 So.2d 871 (Ala.1999), persons selling satellite systems visited thé homes of potential purchasers. The salespersons orally communicated the purchase terms for the satellite systems and also presented written financing arrangements to the potential purchasers.- 744 So.2d at 878. Kathleen and Eugene Cosby, as class representatives, maintained that the salespersons’ oral and written representations were false and that they had relied to their detriment on those false representations. 744 So.2d at 878. We recognized the general rule that the individualized nature of oral communications in fraud claims between class members and defendants typically precludes class certification. 744 So.2d at 877. See also Ex parte AmSouth Bancorporation, 717 So.2d 357, 363-64 (Ala.1998).

However, we also stated that a plaintiff can have a class action certified on fraud, claims based on oral misrepresentations by showing that the oral misrepresentations were uniform or that they were part of a standardized sales pitch. Household Retail, 744 So.2d at 878. Moreover, “class treatment of claims involving both oral and written misrepresentations can be appropriate when the plaintiff demonstrates (1) that no material variation exists among the oral statements made to the class and (2) that no material variation exists between the oral and written statements.” 744 So.2d at 878. We held that the trial court should not have certified the Cosbys’ fraud claim because the Cosbys did not present evidence indicating that the oral representations were standardized. 744 So.2d at 878-79.

The present case likewise involves a mix of alleged written and oral misrepresentations. The trial court discussed Alfa’s written misrepresentations and concluded that almost all of the members of the class were presented with written illustrations that represented that future premiums would be paid by dividends, and not policy loans. The plaintiff policyholders describe the alleged written misrepresentations as ESP illustrations. Harper, Alfa’s vice president of life and loan operations, testified that he was aware that Alfa agents presented ESP illustrations to potential policyholders.

However, based upon a review of the record, it is unclear what written misrepresentations were made to the plaintiff policyholders. Hughes testified that he did not know exactly what the documents were that Alfa agent Frazure presented him with, but he did recall receiving an “illustration” in a brochure. Cline testified that at some point he saw an illustration. Pursuant to Alfa’s request for production, Cline produced an ESP illustration he had received at some point. Alfa agent Scott testified that he showed Cline an illustration of how the minimum-deposit payment plan worked. The Dakes testified that Lord presented an ESP illustration that included his own handwritten notes. Therefore, it is unclear what standardized written misrepresentations the plaintiff policyholders received.

The trial court found that the oral misrepresentations were consistent with the written ESP illustrations. The record, however, indicates an absence of such uniformity. Alfa agent Frazure told Hughes that after he paid his premiums for four years, his “premiums would be paid from the interest that this money accrued.” Alfa agent Scott told Cline that after he paid his premiums for four years, his policy would be self-sustaining through dividends or interest. The Dakes testified that Alfa agent Lord told them that the point at which they could stop paying premiums out-of-pocket depended on Alfa’s earnings. The Dakes also testified that Lord told them that their policy would become self-sustaining through dividends. The differences in the experiences of the four named plaintiff policyholders alone illustrates how extensive the individual inquiry would be in determining what representations were made to each class member. The oral misrepresentation claims of the plaintiff policyholders fare no better on the issue of uniformity, thus making it almost impossible to determine if a material variation existed between the oral and written misrepresentations as required under Household Retail, supra.

Although the trial court found that Alfa agents were trained uniformly and were required to use uniform sales illustrations, the record reflects that the training material Alfa used to explain its minimum-deposit payment plan to its agents does not contain a standardized sales pitch. Despite Alfa’s continuous opposition to the admissibility of Alfa agent Lord’s affidavit as presented by the plaintiff policyholders, the affidavit actually shows that Alfa agents were not instructed to use a standardized sales pitch. Lord testified that he did not inform the Dakes that loans were used to pay policy premiums under the minimum-deposit payment plan because, he said, he was not trained to do so. However, Alfa employees O’Neal and Scott testified that they informed Hughes and Cline, respectively, about the loan policy because they had been trained to do so by Alfa. Thus, the record indicates that the Alfa agents’ presentations to the plaintiff policyholders were not “virtually identical,” as the trial court stated. Instead, the record reveals that the Alfa agents were not uniformly trained to submit a standardized presentation of the minimum-deposit payment plan to potential policyholders of Whole Life 110 policies.

The trial court recognized that Alfa disputed the plaintiff policyholders’ view of the evidence of uniformity but attempted to downplay that evidence, as “simply framing] issues of fact to be resolved by the jury and in no way undercutting] the manageability of the class action procedure.” If such logic were compelling all a plaintiff need do to satisfy the commonality requirement is assert that commonality exists and, if the trial court accepts its assertion over contrary evidence from the defendant, the ensuing trial involving proof of liability specific to each class member would somehow be considered manageable. The United States Court of Appeals for the Seventh Circuit rejected such deference to a plaintiffs view of the evidence in Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir.2001). In Szabo the court held:

“Certifying classes on the basis of incontestable allegations in the complaint moves the court’s discretion to the plaintiffs attorneys — who may use it in ways injurious to other class members, as well as ways injurious to defendants. Both the absent class members and defendants are entitled to the protection of independent judicial review of the plaintiffs allegations.”

See also Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 188 (3d Cir.2001) (recognizing that “ ‘sometimes it may be necessary for the court to probe beyond the pleadings before coming to rest on the certification question.... [A]ctual, not presumed[,] conformance with Rule 23(a) remains ... indispensable.’ ”) (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

Johnston involved a claim of fraud in the marketing of Cinema Plus, a limited partnership formed to finance the production of motion pictures. The plaintiffs sought to have the action certified as a class action. The district court denied the motion for class certification. 265 F.3d at 181. The court of appeals in Johnston was faced with a situation, similar to the one presented here; it noted “the starkly different accounts of plaintiffs Johnston and Fontaine as to how and why they came to invest in Cinema Plus” and pointed out that “the brokers denied using uniform presentations, and more importantly, there is no evidence that, other than Kaiser and Fontaine’s broker, any made the alleged misrepresentation ... at all.” 265 F.3d at 191. Finally, the court observed that “Johnston and Fontaine both testified that if they received written sales information or prospectuses from defendants prior to purchase, they did not rely on them, nor could they recall their substance.” 265 F.3d at 191. The court concluded:

“Here, however, we do not know the content of the individual representations as they were not standard or scripted but were oral and varied. Moreover, we do not know whether or to what extent the representations facilitated the sales of Cinema Plus units. In the circumstances, we cannot say ‘that questions of law or fact common to the members of the class predominate over any questions affecting only individual members.’ Rule 23(b)(3)[, Fed. R. Civ. P].”

265 F.3d at 191. We prefer this approach to manageability.

Even if we were to find that the misrepresentations the Alfa agents made to the plaintiff policyholders were uniform, the issue of each class member’s “reasonable reliance” precludes class certification of the fraudulent-misrepresentation claim. See Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). The plaintiff policyholders contend that there was common reliance by the class members and that “[e]veryone acted the same.” Plaintiff policyholders’ brief, p. 62 n. 22. The trial court agreed and concluded that because of the objective “reasonable reliance” standard, individualized inquiries would not be necessary. However, a determination of each class member’s reliance would require individualized inquiry as to whether that reliance was reasonable “ ‘based on all of the circumstances surrounding [the] transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties.’ ” Reynolds Metals, 825 So.2d at 108 (quoting Foremost Insurance, 693 So.2d at 421)). Under the rationale of Reynolds Metals and Household Retail, we hold that the trial court should not have certified a class with regard to the fraudulent-misrepresentation claim.

In regard to the plaintiff policyholders’ suppression claim, the trial court found that the claim was suitable for class-action treatment because the plaintiff policyholders presented sufficient evidence indicating that Alfa had corporate policy of nondisclosure. The plaintiff policyholders contend that they established that Alfa made materially similar omissions to all class members, including the failure to send the policyholders information about the minimum-deposit payment plan, the failure to inform the class members of the changes in the tax law negating the benefits of the minimum-deposit payment plan, and the failure to warn class members of the substantial taxable gain if they surrendered their policies.

In Compass Bank, supra, the plaintiffs sought to certify a class of customers allegedly harmed by Compass Bank’s failure to disclose the order in which it posted a customer’s checks. 823 So.2d at 668. The plaintiffs alleged fraudulent suppression; however, we concluded that individual issues predominated over the common questions of law or fact, thus making the class unmanageable. 823 So.2d at 672-74. With respect to the reliance element, we stated:

“It is clear that here, ... individual inquiry will be required to determine at the very least what information, if any, each plaintiff customer received about the posting order, [and] the extent to which each plaintiff customer relied on the Compass defendants’ alleged failure to disclose its policies.... ”

823 So.2d at 674.

In the present action, as in Compass Bank, individual inquiries will be required to determine what information regarding the minimum-deposit payment plan was presented to each class member, the extent to which each class member relied upon the oral and/or written information, and whether it was reasonable for each class member to rely upon the alleged misrepresentations of the particular Alfa agent involved. Because reasonable reliance is an “essential element” of suppression, we find that the individual issues of reliance preclude class-wide treatment of the plaintiff policyholders’ suppression claim. See Household Retail, 744 So.2d at 879.

ii Breach-of-Contract Claim

In its certification order, the trial court stated that “the [plaintiff policyholders’] breach of contract claims are capable of common resolution.” Alfa contends that the minimum-deposit payment plan is not a contractual arrangement; instead, it argues that it is simply one payment plan among several from which a policyholder may select. Therefore, according to Alfa, any alleged breach arises from the varying oral and written representations of Alfa agents. The plaintiff policyholders, on the other hand, contend that under the terms of the insurance contracts, Alfa was required to provide the plaintiff policyholders with whole life insurance that would become self-sustaining in a certain number of years without the necessity of taking out loans on the value of the policy to pay the premiums on the policy. The plaintiff policyholders argue that they did not get the policy they bargained for because of Alfa’s breach.

In order to prove their breach-of-contract claim, the plaintiff policyholders must provide evidence of a valid contract, of their performance under the contract, of Alfa’s nonperformance, and of resulting damages. Reynolds Metals, 825 So.2d at 105. In Reynolds Metals, the plaintiffs sought to certify a class of employees who had relied upon a manager’s oral promise regarding severance benefits. 825 So.2d at 102-03. The plaintiffs alleged that Reynolds, the defendant company, breached its contract with the employees. 825 So.2d at 101. Reynolds argued that the plaintiff employees had to show, among other things, that the employees uniformly understood and/or interpreted the manager’s alleged statement and uniformly relied upon and/or expected the same thing as a result of the alleged statement. 825 So.2d at 106. In rejecting the trial court’s class-certification order, we held that Reynolds had demonstrated that individualized evidence from each class member was necessary to determine what contract, if any, existed between the company and each class member. 825 So.2d at 106. The oral representation in Reynolds Metals was between one manager and approximately 279 employees. 825 So.2d at 106. Here, we are faced with various Alfa agents making varying presentations, both oral and written, to each class member.

Moreover, each of the four named plaintiff policyholders requested the minimum-deposit payment plan at different times. Hughes’s wife sent a handwritten note requesting to be placed on the minimum-deposit payment plan; Cline signed an application on which “minimum deposit” was marked and then later signed a form requesting the minimum-deposit payment plan; and Patti Dake signed a form requesting that the policy be placed on an automatic payment loan. The circumstances surrounding each contract are different; thus class-action treatment of the plaintiff policyholders’ breach-of-contract claim is precluded. See Green Tree, 723 So.2d at 10 (ordering the class-certification order in the plaintiffs’ breach-of-contract claim vacated because the claim presented individualized issues of the parties’ intent and the course of dealing between the parties).

Hi. Negligence and/or Wantonness Claims

The plaintiff policyholders assert two separate negligence and/or wantonness claims. First, the plaintiff policyholders argue that Alfa negligently and/or wantonly failed to supervise or train its employees in transactions involving the minimum-deposit payment plan as it related to the Whole Life 110 policies. Second, the plaintiff policyholders claim that Alfa was negligent and/or wanton in handling the policies placed on the minimum-deposit payment plan. In its certification order, the trial court stated:

“At the certification hearing, [the plaintiff policyholders] submitted the affidavit of a former Alfa agent who sold the life insurance policy at issue to named [plaintiff policyholders] Tom and Patti Dake. In the affidavit, Neil Lord states that he did not inform the Dakes that policy loans would be used to pay future premiums because he was not trained to describe the minimum deposit policy in that manner. Mr. Lord states that he was trained by Alfa -at a scheduled training session to tell policyholders like the Dakes that the number of required premium payments was dependent upon the prevailing interest rate.
“According to the [plaintiff policyholders], Alfa breached the applicable standard of care in failing to fully inform its agents and employees regarding the material aspects of the minimum deposit payment option. [The plaintiff policyholders] contend that Alfa’s desire to sell policies was stronger than its desire to explain the minimum deposit option to its agents and insureds and that, as a result, the company stressed the lower number of required out-of-pocket premiums and did not appropriately explain other material aspects of the payment option. [The plaintiff policyholders] aver that as a result of this alleged failure to train and/or supervise, there has been a systematic failure to disclose material details about this minimum deposit option to the insureds.
“[The plaintiff policyholders] further allege that Alfa has been negligent and/or wanton in its handling of minimum deposit policies. Specifically, [the plaintiff policyholders] challenge Alfa’s allowing policies to be placed on the minimum deposit payment option after the tax laws had changed when it was allegedly contrary to policyholders’ best interest. [The plaintiff policyholders] also claim that Alfa has been negligent and/or wanton in its implementation of its alleged plan to protect minimum deposit policyholders. [The plaintiff policyholders] point to evidence that company personnel were not adequately instructed with regard to the company’s plan; that lapses of minimum deposit policies were commonplace; that Alfa collected at least $583,447 in additional premiums from minimum deposit policyholders even though the company had allegedly decided not to require such additional premiums; that death claims were not properly paid; and, that minimum deposit policyholders continue to be charged an effective loan interest rate which is greater than that which should have been assessed them according to the original minimum deposit concept.
“Alabama caselaw is applicable to these negligence and wantonness claims. The proof required to establish Alfa’s negligent or wanton training and supervision should be the same for all class members.”

Alfa contends that these negligence and wantonness claims are inappropriate for class-action treatment because, it says, the training and supervision of Alfa agents was not uniform. Alfa also contends that each policyholder’s plan was handled on an individual basis because a variety of methods was used by Alfa to remedy any problems created by the change in the tax law in 1986.

As we concluded in Part III.A.Í., individualized inquiries would be necessary to determine what training each Alfa agent received, the extent of his or her supervision, and whether his or her minimum-deposit payment presentation to a potential policyholder was consistent with that training. Moreover, as the plaintiff policyholders point out in their brief to this Court, Alfa dealt with each policyholders’ complaint regarding the minimum-deposit plan as it arose. Therefore, we agree with Alfa that the policies “were individually sold by individual agents who had received individual training, and the policies were individually handled according to the particular needs of each policyholder.” Alfa’s Reply Brief at p. 24.

Individual issues predominate the common issues required to maintain the plaintiff policyholders’ negligence and/or wantonness claims as a class action. Without individualized inquiries, the plaintiff policyholders cannot prove the training each Alfa agent received and/or how the agent was supervised, the notice each supervisor had, if any, regarding an Alfa agent’s improper presentation of the minimum-deposit payment plan, and each Alfa agent’s subsequent handling of each policyholder’s plan. See Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998) (“ Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”); AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141, 1144 (Ala.1998) (“The traditional elements of a negligence cause of action are a duty to a foreseeable plaintiff, breach of that duty, causation, and damage.”); Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098 (Ala.1983) (an essential element of negligent supervision is the employer’s notice of the employee’s improper conduct). We hold that the trial court should not have certified the plaintiff policyholders’ negligence and/or wantonness claims as a class action.

B. Superiority

Rule 23(b)(3) requires a finding that the class action “is superior to other available methods for the fair and efficient adjudication of the controversy.” The trial court found that the plaintiff policyholders met the burden of proving the superiority requirement of Rule 23(b)(3):

“Superiority. Rule 23(b)(3) directs the Court to determine ‘that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.’ ‘[Ojther available methods’ necessarily include the individual adjudication of hundreds of individual actions in courts throughout the State. This Court holds that a class action is the superior method of adjudicating this controversy, especially considering the factors enunciated in Rule 23(b)(3)(A)-(D). Any interest of class members in individually controlling the prosecution of separate actions is outweighed by the potential for comprehensive and expedient resolution of this class action. Should any member of the class wish to control the prosecution of his lawsuit, he may opt out of the class. Previous litigation commenced by minimum deposit policyholders has failed to provide relief to class members. Concentration of this litigation in one forum will prevent repetitive pretrial discovery, trial preparation and trials and will prevent inconsistent adjudications. There appear to be no insurmountable difficulties in the management of this case as a class action. Accordingly, this Court finds that the superiority requirement is met.”

Because individual issues predominate over the common claims, manageability difficulties render this case unfit for class certification. Reynolds Metals, 825 So.2d at 108. “[T]he greater the number of individual issues, the less likely it is that a court may properly find that a class action is the superior means of litigating the plaintiffs claims.” Green Tree, 723 So.2d at 9. The individualized inquiry necessary to determine the subjective facts in each transaction pretermits the superiority of any class-wide resolution of these disputes.

IV. Conclusion

The trial court erred in certifying the class in this case. We vacate its class-certification order and remand the cause for further proceedings consistent with this opinion.

ORDER VACATED; CAUSE REMANDED.

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

      . A Whole Life 110 policy is a "permanent” life-insurance policy; the policy pays dividends as long as it is in force. Premiums for a Whole Life 110 policy are due for the lifetime of the insured.

      . Alfa objected to the admissibility of Lord's affidavit at the class-certification hearing on the basis that it was inadmissible hearsay and that the plaintiff policyholders failed to disclose to Alfa that Lord's testimony would be used at the hearing. Alfa continues to object to the admissibility of the affidavit.

      . The plaintiff policyholders contend that we should not address Alfa's appeal of the trial court’s class certification as to their breach-of-contract and negligence and/or wantonness claims. See Porter v. Colonial Life & Accident Ins. Co., 828 So.2d 907 (Ala.2002) (holding that this Court will not consider issues raised for the first time on appeal). However, upon a review of the record, we conclude that Alfa addressed both claims before the trial court at the certification hearing, thereby preserving those issues for appeal.

      . Federal authority is authoritative in construing the Alabama Rules of Civil Procedure because those rules were patterned after the Federal Rules of Civil Procedure. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 70 n. 2 (Ala.2000).