author: HOUSTON, Justice. STUART, Justice BROWN, Justice

text:
    Ex parte J.C. (In re J.C. v. State of Alabama).
    1020824.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      J. Brent Burney of Burney & Burney, Decatur, for petitioner.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole and Jack W. Willis, asst, attys. gen., for respondent.
   HOUSTON, Justice.

The petitioner, J.C., was convicted as a youthful offender of trafficking in marijuana and possession of drug paraphernalia. He was sentenced to three years’ imprisonment on the trafficking charge and to one year’s imprisonment on the drug-paraphernalia charge. The trial court suspended the sentences and ordered J.C. to attend a disciplinary-rehabilitation program, to be followed by three years of probation. The Court of Criminal Appeals affirmed both convictions by an unpublished memorandum. J.C. v. State (CR-01-1447, January 7, 2003), 876 So.2d 1185 (Ala.Crim.App.2003) (table). We granted J.C.’s petition for a writ of certiorari to review his conviction for trafficking in marijuana, a violation of Ala.Code 1975, § 13A-12-231(l)a. We reverse and remand.

I. Facts and Background

Officers from various law-enforcement agencies executed a search warrant for the residence of J.C.’s father. J.C., a 19-year-old college student at the time of the search, resided in the home with his father. No one was home when the officers entered the residence.

In the father’s room were two closets and an adjoining bathroom. A door separated the father’s bedroom from the other parts of the house. J.C.’s bedroom was on the opposite side of the house, approximately 50 feet from his father’s bedroom.

As a result of the search, the following items were found in the father’s bedroom: (1) a set of digital scales in a cabinet in the bathroom; (2) a wire strainer in the cabinet in the bathroom; (3) a brown paper bag containing two large blocks of marijuana on the floor of a closet; (4) a duffel bag in a closet that contained a large plastic trash bag with 10 small plastic bags; each small bag contained approximately one pound of marijuana; (5) a Smith and Wesson .38 caliber revolver next to the vanity; (6) a cigarette cellophane wrapper containing approximately one gram of marijuana in the vanity; (7) several large prescription bottles that contained pills in a closet; (8) one-quarter ounce of compressed marijuana in a small, plastic basket in a closet; (9) one-half ounce of marijuana in a woman’s boot in a closet; (10) a clip used to hold the end of a marijuana cigarette on the vanity; (11) loose marijuana on the floor under a nightstand; (12) a piece of lined notebook paper containing written entries, thought to be drug records, in the vanity; (13) one large freezer bag containing approximately three grams of marijuana in a dresser; (14) a large freezer bag that contained approximately one ounce of marijuana under the mattress of the father’s bed; (15) a white tray containing marijuana under the dresser; (16) a police scanner; (17) binoculars; (18) a crossbow in a closet; (19) two bags of marijuana weighing a total of one pound and eight ounces in the bathroom; and (20) a photograph of the father reclining in bed smoking what appeared to be a marijuana cigarette.

The following items were found on the opposite side of the house in J.C.’s bedroom: (1) two pipes, a broken pipe stem, and packs of rolling papers found in a drawer in the chest of drawers; (2) an empty wooden “dug-out” (a device used to store and smoke marijuana), along with a pipe, in the chest of drawers; (3) several marijuana seeds in the closet; and (4) a shoe box in his closet that contained a shot glass that had a rendering of a marijuana leaf on it, a cigarette lighter with a rendering of a marijuana leaf on it, and a piece of incense.

Leslie Woodall, an Alcoholic Beverage Control Board agent who participated in the search, testified that, during the search, he could smell marijuana throughout the house. However, all the marijuana found during the search, which totaled more than 17 pounds, was found in the father’s bedroom.

The trial judge stated that, even though all 17 pounds of marijuana was found in the father’s bedroom, the strong odor of marijuana in the house and the paraphernalia and marijuana seeds found in J.C.’s bedroom satisfied the judge beyond a reasonable doubt that J.C. knew the marijuana was in the house. Accordingly, the trial court found J.C. guilty of trafficking in marijuana pursuant to Ala.Code 1975, § 13A-12-231(l)a. J.C. filed a motion for a new trial, challenging the sufficiency of the evidence to support the trafficking conviction. The trial court denied that motion, and J.C. appealed.

The Court of Criminal Appeals affirmed J.C.’s trafficking conviction. While admitting in its unpublished memorandum that the case was a close one, the Court of Criminal Appeals held that a rational finder of fact could have found that J.C. constructively possessed the marijuana found in his father’s bedroom. The court stated:

“Officer Woodall [one of the officers who conducted the search] testified to the powerful odor of marijuana that permeated the housé. See, e.g., Goodloe v. State, 783 So.2d 931, 935 (Ala.Crim.App.2000)(no testimony indicating that premises smelled of marijuana as contributing to this Court’s finding that the State failed to prove that the appellant had constructively possessed the marijuana in question). Additionally, not only did the officers find drug paraphernalia in J.C.’s room, but they also found marijuana seeds, debris from the same type of controlled substance found in J.C.’s father’s bedroom and bathroom. See e.g., Moss v. State, 834 So.2d 135 (Ala.Crim. App.2002) (evidence of cocaine residue found in a baggie belonging to the appellant as contributing to this Court’s finding that the State had proved constructive possession). Although this is a close case, this evidence could have led a rational finder of fact to find that J.C. had constructively possessed the marijuana in question. Therefore, his argument on appeal is without merit, and the trial court properly denied his motion for a new trial.”

II. Standard of Review

The role of this Court in reviewing an appellant’s claim that the evidence produced at trial is legally insufficient to support his conviction is a limited one:

‘““In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).” Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, “[t]he role of appel-Tate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978)(emphasis original).’ ”

Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001)(quoting Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998)).

III. Analysis

Because it is undisputed that J.C. was not in actual possession of the 17 pounds of marijuana made the basis of his trafficking conviction, the State, had to demonstrate that J.C. was in constructive possession of the marijuana:

“In order to establish constructive possession, the State must prove ‘(1) [a]ctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.? ”

Ex parte Pitkin, 781 So.2d 182, 183 (Ala.2000)(quoting Bright v. State, 673 So.2d 851, 852 (Ala.Crim.App.1995)). Where contraband is seized inside a residence, “constructive possession can only arise ‘where the prohibited material is found on the premises owned or controlled by the appellant.’” Crane v. State, 401 So.2d 148, 149 (Ala.Crim.App.1981)(quoting Williams v. State, 340 So.2d 1144, 1145 (Ala.Crim.App.1976)). “ ‘When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances.’ ” Ex parte Tiller, 796 So.2d at 312 (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997)). ;

“While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:
“‘(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (8) evidence that the defendant had substantial control over the particular place where .the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.’ ”

Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984).(quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978)).

In the present case, we do not believe that the evidence presented at trial was legally sufficient to show that J.C. constructively possessed the marijuana found in his father’s bedroom. The evidence indicates that the marijuana belonged solely to J.C.’s father. All 17 pounds of marijuana was found behind the father’s closed bedroom door — in the father’s bedroom and in the adjoining closets and bathroom. No testimony indicated that J.C. had engaged in the distribution of marijuana. J.C. was not in the house when the search began, and there was no direct testimony indicating that J.C. ever entered his father’s bedroom. There is simply not sufficient evidence to show that J.C. intended to exercise. dominion over the marijuana.

The State argues that J.C.’s “intention to exercise dominion and external manifestations of intent and control are ... evidenced by the fact that he had numerous marijuana smoking pipes, rolling paper, and marijuana seeds in his personal possessions.” While certainly relevant, this evidence, by itself, was not legally sufficient to show that J.C. had any intent to exercise dominion over the 17 pounds of marijuana made the basis of his trafficking conviction. Accordingly, the State failed to prove an' essential element required to establish constructive possession.

TV. Conclusion

The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

STUART, J., concurs specially.

BROWN, J-, dissents.

STUART, Justice

(concurring specially).

J.C. was charged with trafficking in marijuana. To sustain a conviction for trafficking in marijuana, the State had to establish, that J.C. was in “constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis.” See § 13A-12-231(1), Ala.Code 1975. The State did not meet this burden. While. the State presented sufficient evidence to sustain a conviction for possession of marijuana, it did not present sufficient evidence to support a conviction for trafficking in marijuana.

BROWN, Justice

(dissenting).

I respectfully dissent. In this Court’s opinion, the majority concludes that the evidence was legally insufficient to establish that J.C. was in constructive possession of the marijuana found in his father’s bedroom. As the Court of Criminal Appeals noted in its unpublished memorandum:

“ ‘ “ When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala.Cr.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983)]; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d [725 (Ala.1981).] This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986); Temple v. State, [366 So.2d at 743]. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984); Temple v. State.
“ ‘ “Robinette v. State, 531 So.2d 682, 686 (Ala.Cr.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988).
“ ‘ “In Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), this court provided a non-exclusive list of circumstances that may establish a connection between a defendant and the contraband found on the defendant’s property when the defendant is not in exclusive possession of the premises.
“ ““ “The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.” ’ ” ’
“Meeker v. State, 801 So.2d 850, 853-54 (Ala.Crim.App.2001)(quoting Posey v. State, 736 So.2d [456] at 658-59 [(Ala. Crim.App.1997)] (Judge Shaw and Judge Wise dissenting)).”

The evidence produced at trial indicated that over 17 pounds of marijuana was found in the house. In the defendant’s room, officers found various devices used to smoke marijuana, including no less than three pipes, a “dug-out” (a device used both to store and to smoke marijuana), and rolling papers, along with an empty rolling-paper packet. Officers also found marijuana seeds — debris from the same type of drug found in the father’s bedroom. Additionally, officers noticed a strong odor of marijuana in the house when they were conducting the search.

Based on this evidence, I believe that a rational finder of fact could have found that J.C. constructively possessed the marijuana. Thus, I would affirm the decision of the Court of Criminal Appeals, and I must dissent.

      . J.C. did not petition this Court to review his adjudication as a youthful offender on the drug-paraphernalia conviction and the resulting sentence.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    J.C. v. STATE.
    CR-01-1447.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.
    Billy Burney and J. Brent Burney, Decatur, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   After Remand from the Alabama Supreme Court

COBB, Judge.

Pursuant to the Alabama Supreme Court’s decision in Ex parte J.C., 882 So.2d 274 (Ala.2003), the trial court’s judgment is due to be reversed and the cause remanded to the trial court for proceedings consistent with that opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.


author: HARWOOD, Justice.

text:
    EAGLE PRODUCTS, INC. v. John GLASSCOCK.
    1020206.
    Supreme Court of Alabama.
    Oct. 3, 2003.
    Rehearing Denied Nov. 7, 2003.

      J. Michael Tanner of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellant.
    Gilbert P. Self of Self, Smith, Burdine & Burdine, Florence, for appellee.
   HARWOOD, Justice.

John Glasscock sued Eagle Products, Inc. (hereinafter “Eagle”), alleging claims of breach of contract, misrepresentation of facts, and deceit. Eagle filed a motion for a summary judgment, with supporting documents; after a hearing, the trial court denied the motion. The case proceeded to trial on June 17, 2002. At the close of Glasscock’s case, Eagle moved for a judgment as a matter of law (“JML”). The trial court granted Eagle’s motion for a JML “as it relate[d] to fraud and den[ied] as it relate[d] to the contract.” Eagle rested its case without calling any witnesses and then renewed its motion for a JML on the breach-of-contract claim; the trial court denied the motion. The jury returned a verdict in favor of Glasscock and awarded him $500,000 in damages. Eagle filed a postverdict motion for a JML, or, in the alternative, a new trial, which it subsequently amended to request, in the alternative, a remittitur. The trial court denied Eagle’s posttrial motion, and Eagle appeals, presenting three issues:

“I. Whether Eagle is entitled to judgment as a matter of law in its favor on Glasscock’s breach of contract claim.
“II. Whether Eagle is entitled to a new trial or remittitur because the damages award of the jury is unsupported by the evidence and so excessive as to necessarily be the result of passion, bias, prejudice, or other improper motive.
“III. Whether Eagle is entitled to a new trial because the trial court erred by allowing Mark Naro to testify regarding his business dealings with Eagle.”

The standard of review of a ruling on a motion for a JML is well settled:

“An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute . requiring resolution by the jury. Carter, supra, at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).” •

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000) (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The record shows that in January 1989 Glasscock contacted Joe Cocquyt, the general manager for Eagle, to discuss becoming a distributor of Eagle products. Eagle manufactures premium dog food and pet supplies. A few months later, Bill Lehr, a territory manager for Eagle, spoke with Glasscock and arranged an interview. After the personal interview, Lehr notified Glasscock by letter that he had been awarded the distributorship. The letter, dated June 14, 1989, stated, in relevant part:

“After several months of discussing the distributing of Eagle Products in northern Alabama, this letter is to confirm that you will become our northern Alabama distributor. And, to consummate this distributorship agreement, we must have your initial order by June 30th, 1989, and product must be delivered to you by July 14,1989.
“If you have any questions regarding these requirements, please call me.”

After more negotiations, Glasscock sent Cocquyt a letter, dated July 12, 1989, which stated, in part:

“The distribution of Eagle Pack and Hy-Ration lines of pet food and the relationship between Spring Creek Pet Supplies and Eagle Products, Inc. is exciting to me. Following is an outline of the topics of our conversation of July-11, 1989, relating to the Letter of Agreement between Eagle Products, Inc. and Spring Creek Pet Supplies.
“The enclosed outline will list the topics and counties involved in the discussed agreement.”

Cocquyt mailed Glasscock a letter, dated July 26, 1989, finalizing the details of the distributorship agreement; that letter stated, in relevant part:

“In receipt of your letter of July 12,1 am replying with the following guidelines as far as your distribution of our products from Eagle. (Hy-Ration & Eagle Pack Premium Line)

“Per our letters dated to you, from June 14th, 1989, ... we are allowing distribution of our products in the State of Alabama, north of Birmingham. The counties included in this territory are:

“Lauderdale Jackson Lawrence DeKalb Cullman

Limestone Colbert Morgan Marion Blount

Madison Franklin Marshall Winston Etowah

“Cherokee Walker Calhoun

Lamar Jefferson Cleburne

Fayette St. Clair

“In the event of Eagle Products, Inc. choosing to sever the distributorship agreement with Spring Creek Pet Supplies, Eagle Products will pick up and pay for any product that is dated not more than 90 days old.”

In January 1992, Glasscock moved his pet-supplies business into a larger warehouse, and, in order to help with overhead, he expanded his distributorship business to include a retail store, in which, in addition to Eagle products he sold products of Eagle’s competitors. Glasscock testified that “at first when [he] opened the retad store it was predominately Eagle and over time [he] picked up some other lines.... In 1998, [he] had a larger mix.”

In 1996, Glasscock received a letter from Lehr, addressed to “All Eagle Customers,” which explained that based upon Eagle’s new distributor criteria, “all customers [would] be classified as a Distributor or Direct Buy account.” The letter also stated that Glasscock’s territorial sales manager would review the criteria and provide him “with an application for either Distributorship or Direct Buy.” Attached to this letter was a list of 18 criteria, which stated, “[i]f you do not meet these criteria, you will be classified as a Direct Buy Account.” Glasscock testified at trial that after he received that letter, Lehr and Ronald Rankin, an Eagle sales representative, met with him at his office:

“A: ... Bill Leer [sic] and a rep that I had at that time was named Ronald Rankin did show up and announce at my office and after I got this letter and talked to me about what it would be— what it would take to be a distributor. “Q [Glasscock’s attorney]: What did they tell you?
“A: One of the things mentioned at the time was I would have to have a sales rep, that I could not be the person that went out and sold. I would have to hire somebody. I was willing to pay half the cost which would probably cost ... me $30,000, but I will go for fifteen, if you will. He said no, it is your responsibility — but—'Would you reask the question? “Q: Did you remind him that you had a contract?
“A: I did remind him and he said had a contract.
“Q: How did the conversation end?
“A: It basically was telling me that my understanding or remembrance of it [is] that I basically have to do what they wanted me to do.”

Glasscock testified that he did not meet several of the required criteria for distributors, including the minimum-purchase requirement; the requirement to “dedicate a key person to be responsible for sales”; the requirement that he be engaged in the “full-time business of distributing pet supplies”; the requirement that he “exclusively participate in the wholesale pet supply distribution business”; the requirement that he “have no direct involvement in the retail business”; and the requirement that “accounts must be maintained on current status.”

Judi Hurst, vice president of administration for Eagle, explained at trial what type of account Eagle considered to be a direct-buy account:

“A: A direct-buy account we considered that if they had their own retail store — because we found that people that had their own retail store had lost the focus on going out and promoting our food because they could buy it at wholesale from us and sell it at retail and have a better margin and make more money per bag selling it out of their base store than if they distributed it. If they distributed it, they sell it at wholesale which is a mark-up from our delivery, but then they have far better margin if they sell it in their retail store. “Q [Glasscock’s attorney]: Did you find that most of the existing distributors who did not meet the new criteria were people who owned retail stores? “A: Yes.
“Q: I mean, what was the reason or the purpose in converting those people to direct-buy accounts as opposed to requiring them to buy it from the distributor just like everybody else?
“A: Well, so, that we could set up a distributor in their area that could get out to the other retail stores and have them pick up Eagle as the new line of food to sell out of their store.
“Q: For example, if you were going to set up a new distributor in North Alabama, why would you allow John Glas-scock to buy the products directly from you instead of requiring him to buy it from the North Alabama distributor?
“A: Well, because John had been a customer for such a long time, Eagle continued to let the account that had existed prior to the 1996 reorganization continue to buy directly from Eagle so that they could continue to get the larger discount.”

Hurst mailed Glasscock a letter, dated July 11,1996, which stated:

“The purpose of this letter is to outline and confirm the relationship between Eagle Products, Inc. and Spring Creek Pet Supplies.
“In an effort to more accurately describe the business relationship between Eagle and its various customers, we have been in the process of identifying and categorizing our relationship with our various customers. Spring Creek Pet Supplies is what Eagle Products categorizes as a ‘direct-buy account’ In other words, Spring Creek Pet Supplies purchases product from Eagle Products for resale through its own retail outlet sources. It is not our intention to limit or in any way alter or amend that relationship between Eagle Products and Spring Creek Pet Supplies.
‘You will be happy to know that Eagle Products is making a concerted effort to become more visible in the nationwide market. In that respect, we are in the process of appointing territorial sales managers and distributors for the various regions nationwide. As of the date of this letter, Eagle Products has not yet assigned a territorial sales manager or distributor for Alabama. However, we anticipate appointing a territorial sales manager and/or distributor sometime in the near future. The function of the territorial sales manager and/or distributor is to assist accounts like Spring Creek Pet Supplies in promoting the Eagle Products’ line.
“We have enjoyed our relationship with Spring Creek Pet Supplies and look forward to a continuing long-term future relationship.”

(Emphasis supplied.)

Glasscock stated at trial that he understood that as a direct-buy account he could continue to purchase product from Eagle at the same price he paid when he was classified as a distributor. Hurst explained the benefits that were available to direct-buy accounts:

“Q [Eagle’s attorney]: Did the other distributors who were reclassified as direct-buy accounts continue to buy directly from Eagle?
“A: Yes, and they still do today.
“Q: So, when you continued to get some orders from Mr. Glasscock in August of '96 and maybe a few orders in '97, a couple in '98, was that anything out of the ordinary?
“A: No, it is not.
“Q: Did Eagle provide any of the benefits that we have talked about that it continues to provide to its distributors, did Eagle provide any of those benefits to Mr. Glasscock after July of '96?
“A: I have no knowledge of that. I would imagine if he requested frequent-feeder cards in his order, frequent-feeder cards would have been sent to him. If he requested brochures, they would have been sent. If he requested any of our materials on his order or through a phone call or fax, they would have been sent to him.
“Q: That would have been something that would typically be sent to a retail seller?
“A: Yes.
“Q: Or to a direct buyer?
“A: Or a direct buyer. Direct-buy accounts also have the advantage of ’the frequent-feeder programs and our cou-poning program.”

In regard to Hurst’s July 11 letter, Glas-scock testified at trial:

“Q [Eagle’s attorney]: [In] that letter she told you what the distributor letter had told you that you were -being reclassified as a direct-buy account?
“A: In her opinion, that is true, yes.
“Q: That is what the letter says, isn’t it?
“A: It does.
“Q: And you knew at the time you received that letter in July of 1996, insofar as Eagle was concerned, you were no longer one of their distributors?
“A: That was Eagle’s opinion.
“Q: Well, you knew when you entered the contract with them in 1989, didn’t you, Mr. Glasscock, that they had the right to terminate your distributorship if they wanted to?
“A: They did if they bought back the product from me.
“Q: Well, in July of 1996, you did not have any product to be bought back, did you?
.“A:- I did not agree in July of '96 — but I did not have — I ■ had product in the store I was selling at that time, but I don’t — I can’t say it was a 90 days. My order was earlier in the year.
“Q: That last order that you had made from Eagle prior to July of '96 was January of 1995; isn’t that correct?
“A: I will have to look at all of those invoices.
“Q: Well, you don’t remember that?
“A: (No response.)
“Q: You don’t have any recollection of that?
“A: I do not remember that exact date. I know that I had — I will say that I know that the order was more than 90 days, if that takes care of your question.
“Q: And you never asked Eagle when you got this July of 1996 letter to buy back any of your product, did you?
“A: I contacted my lawyer to write them a letter.
“Q: Well, you never at any time asked Eagle to buy back any of your product?
“A: No, I did not.
“Q: ... Well, let me ask you this, are you telling these ladies and gentlemen of the jury that your understanding of the agreement you had with Eagle in July of 1989 was that you can terminate my distributorship but only if I agree to it?
“A: No. They had to offer to buy back the inventory I had in stock.
“Q: That was 90 days over?
“A: Yes.
“Q: You did not have any at that time?
“A: Not July letter — 1996 letter.”

Glasscock testified further at trial:

“A: The contract stated that the way to sever the agreement with me was to buy back any product that was not more than 90 days old.
“Q [Glasscock’s attorney]: So, did you continue on with the business as usual?
“A: Yes, I did.”

Glasscock’s attorney at the time, Rebecca A. Narmore, sent Eagle a letter, dated August 28, 1996, which stated, in pertinent part:

“It is my understanding that Eagle Products, Inc. is reorganizing its categories of customers in to ‘direct-buy accounts’ and distributors. It is my understanding also that Spring Creek Pet Supplies has been categorized by your company as a ‘direct-buy account.’
“In July, 1989, Eagle Products, Inc. established a distributorship relationship and agreement between John Glasscock of Spring Creek Pet Supphes. He was granted distributorship of your products in the State of Alabama. However, under your letter of July 11, 1996, it appears that Mr. Glasscock will no longer be a distributor, but will be a direct-buy account which will eliminate his classification as an exclusive distributor of Eagle Products, Inc.
“This letter is to inform you that Mr. Glasscock is not in agreement with your letter of July 11, 1996, which re-classi-fíes him as a directrbuy account when he has been a loyal distributor for Eagle Products, Inc. exclusively in the State of Alabama since 1989.
“This attempt by Eagle Products, Inc. to sever the exclusive distributorship agreement with Spring Creek Pet Sup-phes will result in loss of business and loss of income to my client. It is John Glasscock’s intention to continue to be the exclusive distributor for Eagle Products, Inc. in the State of Alabama pursuant to your distributorship agreement dated June 26, 1989. In light of your letter of July 11, 1996, I would appreciate a letter reaffirming my client[’]s distribution status.
“I will mark my file for ten days from the date of this letter for your explanation and clarification of the intentions on the part of Eagle Products, Inc....”

In. reply, Jeffrey A. Johnson, Eagle’s attorney, sent Narmore a letter, dated September 13, 1996; that letter stated, in relevant part:

“The following is in response to your letter dated August 23, 1996 addressed to Judi Hurst of Eagle Products.
“Spring Creek Pet Supphes is classified as a direct-buy account as outlined in Ms. Hurst’s letter of July 11, 1996. If you should happen to have any questions or wish to discuss this matter, please contact me. Otherwise, as outlined in Ms. Hurst’s July 11, 1996 letter, your client, Spring Creek Pet Supphes, may buy directly from Eagle Products, but may not distribute on the wholesale market.”

Glasscock testified that at the time Nar-more received 'Johnson’s letter, he - had new Eagle product in stock and had received an invoice, dated August 6, 1996, from Eagle. Glasscock also testified that Eagle never bought this product back and that he never asked them to buy it back or contacted them after receiving this letter. He stated:

“Q [Eagle’s attorney]: Did you personally after July of '96, after you got that letter from [Judi] Hurst, have any contact with anybody from Eagle?
“A: From '96?
“Q: From '96 to '99? From '96 till ... 1999, did; you personally have any contact with anybody from Eagle other than occasionally ordering a little bit of product?
“A: I don’t remember haying contact at that point.”

Hurst testified that Eagle never contacted Glasscock about buying back the product for which Glasscock received an invoice in August.

In November 1996, Glasscock received a letter from Hurst and James Cocquyt, Sr., president and chief executive officer of Eagle, which stated:

“Dear Valued Customer,
“We at Eagle Products are striving to build a stronger and more responsive relationship between ourselves and you our distributors. The attached letter will give you the opportunity to let us know how we are doing servicing your needs.... We will be using your input to build a better Eagle Products and to strengthen our relationships with our customers.”

Thereafter, Glasscock continued to receive letters from Eagle in regard to various Eagle programs and special offers. Hurst testified that Eagle maintained a customer list, and that all Eagle customers, regardless of whether they were classified as a distributor or a direct-buy account, received these letters. Glasscock stated at trial that he last made a purchase directly from Eagle in 1998. He testified specifically:

“Q [Glasscock’s attorney]: Did you— Was '98 the last year you purchased anything direct from the Eagle plant?
“A: Purchased directly from them, yes, that is correct.
“Q: Were you purchasing items from other sources?
“A: Yes, I was after that point. From that point—
“Q: Still do?
“A: Yes, sir.
“Q: Do you still have business with Eagle?
“A: I still have Eagle [products] in my store today.”

Glasscock testified that he did not have any knowledge of anyone distributing Eagle products in Alabama between July 1989 and July 1996, when he received Hurst’s letter. Glasscock testified that in 1999, he learned that Mark Naro was a distributor for Eagle in Alabama. He stated:

“Q [Eagle’s attorney]: Isn’t it a fact Mr. Naro came on board with Eagle in May of 1999, that would have been almost a year since you had last bought anything from Eagle even if you had found out about Mr. Naro on the day he started?
“A: That is true.”

Glasscock stated that “[he] would go to [his] accounts and hear someone has stopped by talking to them about Eagle, and that is basically how [he] found out” that Naro had been hired as a distributor for Eagle in Alabama. Specifically, Glas-scock testified:

“Q [Eagle’s attorney]: And when you found out about Mark Naro, you did not contact anybody from Eagle to talk about it?
“A: No, I did not.
“Q: It’s your contention in this case, as I understand it, Mr. Glasscock, that Eagle breached their contract with you when they appointed Mark Naro as distributor?
“A: They did. They put somebody in my geographic area.
“Q: And all of — some of the other stuff — not all of it, but some of the other stuff that you have talked about, you don’t contend any of that was a breach of your contract, do you?
“A: I believe they were — they were flirting with a breach, but they did not breach.
“Q: The only thing you say they did to breach their contract with you was to appoint Mark Naro?
“A: That is correct.”

In June 1999, Glasscock received an email from one of his customers; the e-mail stated that the customer had been contacted by another Eagle sales representative, Naro, and that she was upset because based on Naro’s cost structure it appeared that Glasscock had been overcharging, her. Glasscock testified that he lost many- of his accounts because Naro was underpricing him. Glasscock stated that from 1989 to 1998 he purchased approximately $424,000 of product directly from Eagle. Hurst testified that during that same period Glasscock had purchased approximately $393,929 of product from Eagle: $53,059 in 1990; $62,335 in 1991; $76,734 in 1992; $64,859 in 1993; $54,051 in 1994; $14,086 in 1995; $14,572 in 1996; $32,177 in 1997; and $22,056 in 1998. .She stated that Eagle “would expect more” volume of product purchases by its distributors than the amount purchased by Glasscock either before or after the 1996 reorganization. She testified that Eagle expects their “distributors today and then” to buy approximately $150,000 to $200,000 of product a year. Hurst testified that Eagle no longer gave exclusive territories to distributors and that she knew of no one who still had an exclusive territory with Eagle.

Glasscock testified that he planned on continuing to work until he reached age 65. He testified specifically:

“Q [Eagle’s attorney]: Had Mark Naro not come into the picture, was it your intention in continuing selling [Eagle products] in the Birmingham, Huntsville, Cullman [areas]?
“A: I have already been doing that even though the orders are smaller than they have been in years prior. I continue to service the customers there.”

• Naro testified by deposition that he was the Alabama distributor for Eagle from May 1999 until “between March and April of 2000,” and that he was not aware of Glasscock at the time he started distributing for Eagle. According to Naro, he first became aware of Glasscock when several of the stores he approached- to sell Eagle products informed him that Glasscock was their distributor. He stated that he asked Eagle about Glasscock and was informed that Glasscock’s contract had been canceled. He stated that he got a representative from Eagle to go with him to those stores and explain that Glasscock was no longer a distributor for Eagle because he paid his invoices late, did not call on customers regularly, and did not order enough product. He testified that he serviced many of the counties that were originally part of Glasscock’s geographic.territory, including Jefferson County, Cullman County, Madison County, and Walker County. According to Naro, as an Eagle distributor, he sold a monthly average of “close to thirty thousand” dollars worth of product.

The dispositive issue argued by Eagle on appeal is “[w]hether Eagle is entitled to judgment as a matter of law in its favor on Glasscock’s breach of contract claim.” As noted, Glasscock contends only that Eagle breached its contract with him by appointing Naro as a distributor in his geographical area. Neither Glasscock nor Eagle presented testimony or other evidence as to what type of relationship they thought they had or otherwise attempted to analyze the legal nature of the' relationship created by their contract. It is unnecessary to determine whether Glasscock was an independent contractor or an employee of Eagle, however, because under either classification the contract was terminable at will. “ Absent a contractual provision to the contrary, an independent contractor/principal agency relationship is terminable at any time at the will of the principal or the agent. See generally Restatement (Second) of Agency § 117 cmt. a (1958)....’” Ex parte Gardner, 822 So.2d 1211, 1218 (Ala.2001), quoting Kaldi v. Farmers Ins. Exch, 117 Nev. 273, 21 P.3d 16 (2001); see also Ex parte Michelin North America, Inc., 795 So.2d 674, 677 (Ala.2001) (“In Alabama, an employment relationship is ordinarily ‘at will,’ and the fundamental principle of employment at will is that the employment relationship is terminable by either party at any time and for any reason.”), and Hickeribottom v. Preferred Risk Mut. Ins. Co., 514 So.2d 881, 882 (Ala.1987) (“Contracts without a fixed term are terminable at the will of either party and may be terminated for any cause or for no cause.”).

As noted, in 1996 Eagle notified Glas-scock, initially by letter and then in person, that in order to retain his distributorship status, Glasscock would have to meet specified criteria. Glasscock testified that he did not meet many of the required criteria, and in July 1996 Eagle notified Glasscock that he was being classified as a direct-buy account, rather than as a distributor.

Glasscock argues in his brief to this Court that “Eagle desperately maintains, in hindsight, that [Judi] Hurst, Eagle’s vice-president, severed its distributorship relationship with Glasscock on July 11, 1996.” However, Glasscock conceded at trial that he knew at the time he received Hurst’s letter that Eagle’s opinion was that he was no longer their distributor, and his attorney stated in her reply letter to Hurst that “under your letter of July 11, 1996, it appears that Mr. Glasscock will no longer be a distributor, but will be a direct-buy account which will eliminate his classification as an exclusive distributor of Eagle Products, Inc.” Glasscock argues that Hurst’s letter “never informs [him] that he is no longer Eagle’s exclusive distributor or that he cannot distribute on the wholesale [m]arket.” In fact, her letter states, “Spring Creek Pet Supplies is what Eagle Products categorizes as a ‘direct-buy account.’ In other words, Spring Creek Pet Supplies purchases product from Eagle Products for resale through its own retail outlet sources.” She also stated in that letter that Eagle had not assigned a distributor for Alabama as of the date of the letter, but that it anticipated appointing a distributor “in the near future.” Glasscock argues that Hurst continued to refer to him as Eagle’s distributor in her next correspondence to him. That letter, as noted, is addressed to “Dear Valued Customers” and refers generally in its body to “you our distributors.” Hurst explained that Eagle maintained a customer list, and that all of its customers, regardless of whether they were classified as a distributor or a direct-buy account, received that letter, as well as other mailings.

Glasscock also argues that “in 1996, 1997, 1998, and 1999, the parties continued their relationship as before.” However, Hurst testified that “[d]ireet-buy accounts also have the advantage of the frequent-feeder programs and our couponing program,” and she stated that direct-buy accounts were able to purchase Eagle products for the same price as distributors. Hurst stated that the other distributors who were classified as direct-buy accounts continued to purchase from Eagle after the new classification and “still do today,” so it was not unusual for Eagle to continue to receive orders from Glasscock. Glass-cock testified at trial that he understood that, as a direct-buy account, he could continue to purchase products from Eagle at the same price he had paid as a distributor. He stated that the last year he purchased directly from Eagle was 1998.

Glasscock argues in his brief to this Court:

“On September 13, 1996, Eagle’s attorney, for the first time, informs Glasscock that he cannot ‘distribute on the wholesale market.’ Prior to this letter, this language had never been used. However, Eagle Pet Products never elects to sever the relationship, pursuant to the terms that it had chosen, by purchasing-back from Glasscock product not more than ninety days old, though Glasscock had on hand Eagle Product that was less than ninety days old.”

At trial, Glasscock did not dispute that Eagle had the right to sever the distributorship agreement, he argued only that in doing so it did not comply with the terms of the contract. Under the distributorship agreement between Glasscock and Eagle, in the event Eagle severed the distributorship relationship, Eagle was required to “pick up and pay for any product that [was] dated not more than 90 days old.” Glasscock testified that he knew that Eagle could terminate the distributorship “if they bought back the product from [him].” Glasscock testified that he did' not have any product less than 90 days old at the time he received the July 1996 letter. Glasscock stated that he had placed an order in August 1996 and therefore had new product on hand when he received a letter from Eagle’s attorney, which he claims is the first time Eagle informed him that he could not distribute on the wholesale market. However, Hurst’s July 11, 1996, letter clearly stated that Glasscock’s account had been categorized as a direct-buy account and that Eagle anticipated appointing a distributor in Alabama “in the near future.” The September 13, 1996, letter only reaffirmed Eagle’s decision to terminate the distributorship agreement, and stated “Spring Creek Pet Supplies is classified as a direct-buy account as outlined in Ms. Hurst’s letter of July 11, 1996.” Therefore, at the time Eagle terminated the relationship, July 11, 1996, there was no product Eagle was required to buy back in conjunction with the termination of Glasscock’s distributorship status, and Eagle effectively terminated the distributorship agreement by notifying Glasscock of his direct-buy classification in Hurstfs July 1996 letter. In any event, even if Glas-scock had product less than 90 days old at the time of the July 11, 1996, letter, it would not have prevented the termination. The agreement only states that “[i]n the event, Eagle Products, Inc. choos[es] to sever the distributorship agreement with Spring Creek Pet Supplies, Eagle Products will pick up and pay for any product that is dated not more than 90 days old”; it does not say that as a condition precedent to a legally effectual termination Eagle must pick up and pay for the product. Accordingly, the trial court erred by refusing to grant Eagle’s motion for a JML.

For the foregoing reasons, the trial court’s order denying Eagle’s motion for a JML is due to be, and hereby is, reversed and a judgment rendered in favor of Eagle Products, Inc. Because we are rendering a judgment for Eagle on this issue, we need not address the other issues Eagle raises on appeal.

REVERSED AND JUDGMENT RENDERED.

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

      . Glasscock also named Mark Naro, at one time a distributor for Eagle, as a defendant, but later voluntarily dismissed his claims against Naro.

      2. Spring Creek Pet Supplies is a business formed by Glasscock, which he operates as a sole proprietorship.

      . The record does not contain a copy of the outline referenced in this letter.

      . The record contains no other reference to the parties' right of severance.

      . By the time of this letter, Lehr had become a national sales manager with Eagle.

      6. Hurst stated that Eagle has a frequent-feeder program, so that "when you buy twelve bags ... [you] get the thirteenth bag free.”

      7. The distributorship agreement does not state that it is exclusive, but Eagle never contests this characterization of the contract.

      8. Glasscock testified that he bought Eagle products from other distributors to resell to his customers; he stated that the other distributors were “charging [him] the handling charge for the product, but they were not charging [him] the normal wholesale markup.”


author: PER CURIAM. HOUSTON, Justice JOHNSTONE, Justice

text:
    Douglas DICKINSON and Barbara Dickinson v. LAND DEVELOPERS CONSTRUCTION COMPANY, INC. Douglas Dickinson and Barbara Dickinson v. Cook’s Pest Control, Inc.
    1021276 and 1021277.
    Supreme Court of Alabama.
    Nov. 7, 2003.

      Michael K. Beard and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellants.
    Donald D. Lusk and Leslie Ann Caldwell of Lusk & McAlister, P.C., Birmingham; and Jesse P. Evans III of Adams & Reese, LLP/Lange Simpson, Birmingham, for appellee Land Developers Construction Company, Inc.
    Clifton E. Slaten, Mindi C. Robinson, and Jason J. Baird of Slaten & O’Connor, P.C., Montgomery, for appellee Cook’s Pest Control, Inc.
   PER CURIAM.

Douglas and Barbara Dickinson appeal from a summary judgment entered against them, by the Shelby Circuit Court in their actions against Land Developers Construction Company, Inc., and Cook’s Pest Control, Inc. We reverse in part, affirm in part, and remand.

I. Facts and Procedural History

On November 11, 1992, Land Developers and the Dickinsons entered into a contract for the construction of a house. Cook’s issued the Dickinsons a “Subterranean Termite Control Damage Replacement Guarantee” for this house on February 25, 1993. This guarantee was effective for one year and was renewable annually. Pursuant to this guarantee, Cook’s provided an initial inspection and pretreatment of the Dickinsons’ house against termites and conducted annual inspections thereafter. Those annual inspections checked, among other things, the moisture level of the house.

The Dickinsons moved into their house on December 20, 1993. Shortly after moving in, the Dickinsons began to notice a number of problems with their house. In early January 1994, the Dickinsons provided Land Developers with a “punch list” of items that needed to be completed. On October 2, 1994, the Dickinsons sent Land Developers another list of items that still needed to be addressed.

Six to nine months after moving into their residence, the Dickinsons discovered seals on certain of the windows were broken. On November 17, 1994, the Dickin-sons’ architect prepared a list of problems with the French doors in the house. In early 1995, the Dickinsons documented a leak in their “pool bath.” On May 1, 1995, the Dickinsons wrote a letter to Land Developers stating that they would like Land Developers to address the noted problems as soon as possible and listing seven areas of concern with the house. On May 13, 1995, the Dickinsons sent a memorandum to Land Developers concerning cracks in the driveway and a water leak under their driveway and asking when it would address the previously noted problems.

The inspection report prepared by Cook’s in 1995 noted that there was some water seepage in the crawl space under the house and that some wood material was “below grade,” i.e., below the ground level. However, the reports prepared by Cook’s in 1996 through 2000 failed to note any water seepage; the 1996 report stated that everything “Looks good!” Furthermore, the 1996, 1998, and 1999 reports prepared by Cook’s concurred with the 1995 report in stating that there was wood in the Dickinsons’ house that-was below the outside grade level, but the 1994, 1997, and 2000 reports indicated that there was no wood below the outside grade level.

On April 26, 1996, the Dickinsons sent Land Developers a letter by certified mail; the letter outlined 11 residual problems with the house. Land Developers never responded to this letter. On October 30, 1999, the Dickinsons sent another letter via certified mail to Land Developers requesting that it fix several problems with the house. The Dickinsons described some of those problems as follows:

“1. The back concrete deck junction with the house and its poor caulking still leaks water. As you recall, your previ- . ous attempts to fix this failed. This has progressed to the point wherein these leaks have caused erosion of soil under the deck resulting in its sinking approximately three inches where it joins-the house causing a subsequent tilt inward of the entire deck.
.“2. The upper garage cement portion of the drive-way was also of concern to our cement consultant. He felt that water from the house drains was getting under the driveway and also causing soil erosion, sinking, and cracking..
“3. The replaced doors on the back of the house all have rotten wood framing.
. “4. Multiple window panes in the front and back of the house have air leaks with water condensation and still have not been replaced.”

After Land Developers failed to respond to the October 30,1999, letter, the Dickinsons hired a structural engineer, Joel Wehr-man, to inspect, their house. Wehrman’s inspection resulted in a written report.

In his report, Wehrman found that there was a separation between the brick veneer and the doorframes of the French doors at the rear of the house. Wehrman opined that the separation was caused by the rotting of the wooden basement wall, which had resulted from the use of untreated wood in constructing the basement wall. Wehrman stated that the decay of the belowground wooden wall was inevitable. Wehrman also found that the use of the wooden wall resulted in a lack of lateral support for the house and could contribute to the separation of the superstructure from the foundation. In addition, Wehr-man found that the driveway, walkway, and patio were cracking. Wehrman stated that this resulted from their having been constructed on fill soils, which had settled since construction.

At Wehrman’s suggestion, and with his oversight, the Dickinsons began the demolition and reconstruction of part of their house in February 2000. The cost of the demolition and reconstruction was $731,833.50.

Before the demolition and reconstruction, no termite activity was reported and the moisture-content levels measured by Cook’s in its annual inspections were never at or above 20% (a level of 20% or above would have indicated a greater chance of wood decay and insect infestation). During the demolition and reconstruction of the Dickinsons’ house, however, Cook’s discovered termite activity in the below-ground wooden wall, which was located at the rear of the house.

After being informed by Cook’s of the termite infestation, the Dickinsons hired a termite consultant to inspect their home. This consultant observed the termite infestation in the rear of the house and, after evaluating Cook’s pretreatment of the Dickinsons’ house, concluded that Cook’s should have applied 600 to 700 gallons of the insecticide Dursban to the Dickinsons’ house. The records maintained by Cook’s reflect that it applied only 444 gallons of Dursban.

On December 21, 1999, following receipt of the Wehrman report, the Dickinsons sued Land Developers in the Shelby Circuit Court, seeking damages for breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability arising from the construction of the Dickinsons’ house. On October 27, 2000, the Dickinsons sued Cook’s in the same court, seeking damages for breach of contract, fraud, negligence, and negligence per se arising out of termite damage to their house.

The actions were consolidated following a motion filed by the Dickinsons. Land Developers and Cook’s both filed motions for a summary judgment; the trial court granted both motions, holding that the Dickinsons’ claims against Land Developers and Cook’s were time-barred.

II. Standard of Review

This Court’s review of a trial court’s ruling on a motion for a summary judgment is de novo, according to the following principles:

■ “'‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if hot, whether the movant was entitled ■to a judgment as a matter of law. Our review is .further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“ *... Ala.Code 1975, §12-21-12, mandates that the [nonmovant] meet [its] burden by “substantial evidence.” Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmóvant must present “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought tó be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’ ”

Parrish v. Blazer Fin. Serbs., Inc., 868 So.2d 406, 409 (Ala.2003)(quoting Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992)).

III. Claims Against Land Developers

The issue in the Dickinsons’ action against Land Developers is whether, when the record is reviewed in a light most favorable to the Dickinsons as the nonmov-ants, the Dickinsons’ claims are time-barred. The Dickinsons concede that Ala. Code 1975, §§ 6-5-220 through 6-5-225 govern their claims against Land Developers. Section 6-5-221(a) provides:

“(a) All civil actions in tort, contract, or otherwise ... against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and constructed in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
“(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improvement, or any defect or deficiency in the construction of any such improvement; or
“(ii) Damage to real or personal property caused by any such defect or deficiency; or
“(iii) Injury to or wrongful death of a person caused by any such defect or deficiency;
shall be commenced within two years next after a cause of action accrues or arises, and not thereafter.”

(Emphasis added.)

Section 6-5-220(e) provides that a cause of action “accrues or arises”

“when a person is injured, including injury which results in death, or when property is damaged as a proximate result of a defect or deficiency in design, planning, testing, supervision, administration, or observation of construction of an improvement by an architect or engineer or in the construction of an improvement by an architect or engineer or in the construction of an improvement on or to real estate, constructed, performed, or managed by a builder; or where the damage or injury either is latent 'or by its nature is not discoverable in the exercise of reasonable diligence at the time of its occurrence, the claim for relief shall be deemed to arise ■ or accrue .at the time the damage or . injury is or in the exercise of reasonable diligence should have been first discovered, whichever is earlier. The cause of action accrues or arises whether or not ■the full amount of damages is apparent at the time of the first injury or damage, and cannot be extended as a continuous wrong.”

(Emphasis added.) Section 6-5-225 provides that, through the above-quoted sections, the Legislature intended to “apply[ ] for the first time to both these tort and contractual actions, the so-called ‘discovery rule,’ ” where the injury or damage is latent.

The “discovery rule,” found in Ala.Code 1975, § 6-2-3, applies to fraud claims. See Sanders v. Peoples Bank & Trust Co., 817 So.2d 683, 686 (Ala.2001). We have held that “ ‘ “[t]he question of when a party discovered or should have discovered the fraud is generally one for the jury.” ’ ” Potter v. First Real Estate Co., 844 So.2d 540, 546 (Ala.2002) (quoting Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000), quoting in turn Liberty Nat’l Life Ins. Co. v. Parker, 703 So.2d 307, 308 (Ala.1997)). However, a party will be deemed to have “discovered” a fraud as a matter of law upon the first of either the actual discovery of the fraud or when the party becomes privy to facts that would provoke inquiry in a reasonable person that, if followed up, would lead to the discovery of the fraud. Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1195 (Ala.2001); Gray v. Liberty Nat’l Life Ins. Co., 623 So.2d 1156, 1159 (Ala.1993). Under § 6-5-221(a) (read in conjunction with § 6-5-220(e) and § 6-5-225), we must apply these “discovery” principles to each of the Dickinsons’ claims against Land Developers, not simply the fraud claims.

As stated above, the Dickinsons’ asserted numerous claims against Land Developers: breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability. However, the factual basis for each of these claims is the same: 1) that Land Developers made certain promises or representations to the Dickinsons, and 2) that there are numerous defects in the house. According to the Dickinsons, Land Developers’ promises or representations were as follows:

“A. That [Land Developers] were good and competent contractors;
“B. That [Land Developers] would contract on behalf of the [Dickinsons] and hire subcontractors, materialmen, laborers, and others in order to secure completion of their home in a workmanlike manner ...;
“C. That the home would be built in accordance with the plans, specifications, and contract documents and that all work would be done in compliance with any and all applicable local building codes and the Southern Building Code;
“D. [Land Developers] promised and agreed to build the [Dickinsons’] home in the best possible manner and that [Land Developers] would provide [Land Developers’] best skill and attention in constructing and overseeing the construction of subcontractors on the [Dick-insons’] home;
“E. [Land Developers] represented to [the Dickinsons] that [Land Developers] had done all of the work in conformance with contract documents, plans, and specifications;
“F. [Land Developers] promised to repair and/or cure any and all faulty or defective work or failure of any workmanship or materials or equipment whether supplied by [Land Developers] or by subcontractors or materialmen hired by [Land Developers].”

Many of these promises or representations appear in the contract between the Dickin-sons and Land Developers.

According to the Dickinsons, the defects with the Dickinsons’ house are as follows:

“a. Wood framing extends below grade around portions of the exterior perimeter of the house which was backfilled against with dirt which has caused severe structural rot and damage over a period of time.
“b. The backfill and/or fill dirt around the house, drains, walls, patios, and concrete floors was improperly impacted or improperly drained causing damage to said walls, patios and floors.
“c. There is no evidence of proper drainage around the perimeter of the house.
“d. There are a number of leaks in said home.
“e. The perimeter of most windows and doors were not properly sealed and/or supported.
“f. There are some locations where the base wood and concrete has suffered from structural failure and the damaged areas have telegraphed through the house causing floors to be unlevel, walls to be out of plumb doors arid windows to ‘sink.’
“g. Improper backfill and/or fill was used on the entire home.”

In entering a summary judgment for Land Developers, the trial court held that the Dickinsons either “discovered” all of these defects, or were “privy to facts that would ‘provoke inquiry in a [person] of reasonable prudence, and which, if followed up, would have led to the discovery’ ” of all of the defects, Auto-Owners, supra, 822 So.2d at 1195 (quoting Willcutt v. Union Oil Co., 432 So.2d 1217, 1219 (Ala.1983)), more than two years before they filed their complaint on December 21, 1999. We disagree with this holding in part.

The undisputed facts of this case show that the Dickinsons discovered a number of problems with their house at an early stage. The Dickinsons were aware of roof leaks and problems with the French doors and window seals as early as 1994. In 1995 the Dickinsons were informed of water damage in parts of their home, and they knew as early as March 3, 1995, that their pool bath was leaking. The Dickinsons’ also learned as early as 1995 that their driveway was starting to crack and that it was always wet. Insofar as • the. Dickinsons’ claims against Land Developers arise ■ out of the above problems, they are barred by the two-year statutory limitations period of § 6-5-221, Ala.Code 1975.

Land Developers argues that all of the Dickinsons’ problems put them on notice of facts that, if reasonably investigated, would have brought to their attention the rotten belowgrade wooden wall and the fill-soil ■ compaction problems that caused the structural damage to their house. Land Developers correctly points out that the limitations period begins to run from the date damage is “discovered,” without regard to whether the full extent of the damage is apparent at that time. See Ala.Code 1975, § 6-5-220(e). However,■ it is incorrect in its assertion that the various problems the Dickinsons were aware of in 1994 and 1995 were, as a matter of law, sufficient to “provoke inquiry in a [person] of reasonable prudence, and which, if followed up, would have led to the discovery,” Auto-Owners, 822 So.2d at 1195—within the limitations period—of the fact that their house was resting in part on a rotten belowground wooden wall or that it. had been constructed on allegedly improperly compacted fill soils. With respect to these “hidden” or latent defects, the issue is not whether the Dickinsons had general knowledge of problems with the construction of the house or whether a reasonable person would have sought professional help in an attempt to discover the source of the problems and fix them; indeed, the Dickinsons did just that when they sought the assistance of Land Developers. Instead, the issue is whether Land Developers has produced sufficient evidence on which to hold as a matter of law that the problems listed above with the Dickinsons’ house, of which the Dickinsons were aware shortly after the house was constructed, would, have put a reasonable person (in the Dickinsons’ situation as a home buyer) on notice that he should have 1) investigated the underground wooden wall and the fill-soil area himself, or 2) gone beyond seeking Land Developers’ assistance in determining the source or sources of the problems and the proper way to fix those problems.

There is no evidence indicating that the Dickinsons had, or a reasonable person in the Dickinsons’ position would have had, the inclination or the ability to perform a sufficient self-investigation. While there is some evidence indicating that the Dickin-sons were put on notice that there was some belowground wood present at the home (through Cook’s 1995 report), there is no evidence indicating that the Dickin-sons knew that the belowground wooden wall existed or, more importantly, that any reasonable person would know that the presence of belowground wood was a problem at all. From the standpoint of a “reasonable person,” it would appear that a myriad of causes could have been the source of the problems with the Dickin-sons’ French doors, driveway, and pool bath, and the Dickinsons tried several times to solve the problems with their house through Land Developers — the one entity that should have the most knowledge about the house.

The construction contract imposed on Land Developers a duty to repair any faulty or defective work. Pursuant to this contractual provision, the Dickinsons contacted Land Developers several times asking it to fix the problems the Dickinsons were experiencing with their house. We hold that the Dickinsons’ reliance on Land Developers to fix their problems was reasonable. A reasonable person in the Dick-insons’ situation would rely on Land Developers to fix the type of problems the Dickinsons were experiencing. A reasonable person would not pay to have a third party fix and diagnose problems with their house without first allowing their expert homebuilder to perform that duty — a duty that the homebuilder is generally required to perform.

Land Developers has failed to show that the problems the Dickinsons experienced with their house shortly after construction was completed would cause a reasonable person to discover the existence of the rotten belowground wooden wall or the allegedly improperly compacted fill soil. In contrast, the Dickinsons have produced evidence indicating that they did not know of the serious structural damage to their house until Wehrman prepared his report in 1999. Therefore, the question of when the Dickinsons should have discovered the serious structural defects in their house; such as the rotten belowground wall and the allegedly improperly compacted fill soil, may not be decided as a matter of law, and a jury question exists as to when the Dickinsons discovered facts sufficient to maintain their claims against Land Developers. Therefore, we reverse the trial court’s summary judgment as to the Dick-insons’ claims against Land Developers.

IV. Claims Against Cook’s

The issue in the Dickinsons’ action against Cook’s is whether, viewing the record in a light most favorable to the Dickin-sons, we would conclude that the trial court properly entered a summary judgment in favor of Cook’s as to all of the Dickinsons’ claims. We hold that the summary judgment for Cook’s was proper.

The Dickinsons’ first claim against Cook’s alleges breach of contract. Specifically, the Dickinsons claim that Cook’s breached its contract with them by failing to pretreat their home ih 1993, failing to properly inspect their home during its annual inspections, failing to apply proper treatment pursuant to the contract between the Dickinsons and Cook’s (“the termite contract”), failing to inform them of termite activity, and failing to repair termite damage to their house. The Dickin-sons have conceded that their claim against Cook’s for breach of the 1993 pretreatment contract is barred by the statute of limitations.

The trial court entered a summary judgment as to all of the Dickinsons’ claims against Cook’s because it held that the statutory limitations period had run as to each claim. While we affirm the trial court’s summary judgment, we do so on different grounds; therefore, it is not necessary to address the statute-of-limitations issue. This Court can affirm a trial court’s judgment for any reason, even one not considered by the • trial court. Laidlaw Transit, Inc. v. Alabama Educ. Ass’n, 769 So.2d 872, 873 (Ala.2000).

The damage the Dickinsons allege in their complaint they suffered as a result of the actions of Cook’s is limited to termite damage in the area in the rear of their house where the rotten belowground wooden wall was located. It is undisputed that the termite contract did not require Cook’s to inspect or treat certain areas of the Dickinsons’ house, including areas where:

“a. Wood members of the building are in direct contact with the ground,
“b. Wood material in the building is below outside finished ground level,
“c. A moisture problem exists which permits termites to survive without returning to the ground.”

When interpreting a contract, this Court will reconcile and enforce all of its terms and will not ignore or disregard any term so long as doing so is not patently unreasonable. Yu v. Stephens, 591 So.2d 858 (Ala.1991). The evidence presented in this action established that at least two of the above exclusions to the termite contract were applicable to the area where the termite damage was allegedly discovered. Specifically, that area was an area where the wood was in direct contact with the ground and was below the outside finished ground level. Because the damage the Dickinsons sustained clearly fell within at least two of the exclusions listed in the termite contract, Cook’s had no duty to inspect or treat the area or to repair the termite damáge, and its failure to do so was not a breach of contract. Therefore, summary judgment was proper as to the Dickinsons’ claim that Cook’s breached the termite contract.

The Dickinsons also argue that Cook’s breached their contract by failing to notify the Dickinsons that it had discovered termites on the premises. There is no evidence to support this allegation. It is undisputed that neither Cook’s nor anyone else discovered termites until the house was partially demolished in 2000, at which point Cook’s promptly notified the Dickinsons of the termite infestation. Therefore, summary judgment was proper as to the Dickinsons’ claim of breach of contract based on Cook’s alleged failure to notify them of the termite infestation at their house.

The trial court also properly entered a summary judgment as to the Dickinsons’ fraud claim against Cook’s. There can be no fraud without a breach of a legal duty owed by the defendant to the plaintiff. George v. Federal Land Bank of Jackson, 501 So.2d 432, 435 (Ala.1986). As noted earlier, the termite damage to the Dickinsons’ house was in areas that Cook’s clearly had no duty to inspect, treat, or repair under the termite contract. Therefore, the Dickinsons’ fraud claim against Cook’s is without merit and a summary judgment as to that claim was proper.

Finally, the Dickinsons allege that Cook’s was negligent in inspecting their property and in failing to inform them of termite damage, and that Cook’s was negligent per se for failing to follow Ala.Code 1975, § 2-28-9. The trial court properly entered a summary judgment for Cook’s as to these negligence claims.

“ ‘The existence of a duty to the plaintiff is fundamental to a negligence claim.’ ” Patrick v. Union State Bank, 681 So.2d 1364, 1367 (Ala.1996) (quoting Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199, 203 (Ala.1992)). As stated earlier, Cook’s had no duty under the termite contract to inspect, treat, or repair the areas where the termite damage was discovered. Therefore, the trial court properly entered a summary judgment for Cook’s as to the Dickinsons’ negligence claims.

The Dickinsons’ claim that Cook’s was negligent per se for violating Ala.Code 1975, § 2-28-9 is also without merit. To establish negligence per se, a plaintiff must prove: (1) that the statute the defendant is charged with violating was enacted to protect a class of persons to which the plaintiff belonged; (2) that the plaintiffs injury was the kind of injury contemplated by the statute; (3) that the defendant violated the statute; and (4) that the defendant’s violation of the statute proximately caused the plaintiffs injury. Elder v. E.I. DuPont de Nemours & Co., 479 So.2d 1243, 1248 (Ala.1985).

Alabama Code 1975, § 2-28-9, requires persons engaged in termite eradication and control to make annual reports to the owner of the building where the termite-control work is being performed indicating whether there has been an infestation of termites. The Dickinsons’ own testimony made clear that Cook’s sent the Dickinsons reports of the annual inspections it performed on the Dickinsons’ house. Therefore, the trial court’s summary judgment for Cook’s on the Dickinsons’ claim of negligence per se was proper.

V. Conclusion

Based on the above, we reverse the trial court’s summary judgment as to the Dick-insons’ claims against Land Developers, insofar as those claims are based on the latent defects mentioned above: the below-ground wooden wall and the fill-soil compaction. Otherwise, we affirm the trial court’s summary judgment for Land Developers. We also affirm the trial court’s summary judgment in favor of Cook’s.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SEE, LYONS, and WOODALL, JJ., concur.

HOUSTON and JOHNSTONE, JJ., concur specially.

HOUSTON, Justice

(concurring specially).

I write specially to address a particular problem: the confusion surrounding the difference between a claim alleging breach of contract and a claim alleging fraud. There is a distinct difference between the two claims, but I fear that that distinction is all too often lost in Alabama. Simply put, a plaintiff cannot convert the mere failure to perform or to fulfill a contractual promise into a fraud claim, and that appears to be happening in this case.

Under Alabama law, a plaintiff can, in some instances, maintain a cause of action for fraud and breach of contract arising from the same general factual circumstances. See Deupree v. Butner, 522 So.2d 242 (Ala.1988). In Deupree, we held that the plaintiffs, who had signed a contract to purchase a Florida townhome from the defendant developer but had not yet closed on the toumhome, could recover for both fraud and breach of contract based on the developer’s representations to the plaintiffs that there would be no problems in acquiring the necessary governmental approval for a boat slip appurtenant to the property, when in fact there were substantial problems. 522 So.2d at 243-45. We held that there was evidence indicating that the plaintiffs would not have closed on the townhome had the defendant disclosed the truth about the governmental approval process, and we held that the plaintiff could recover for fraudulent suppression. 522 So.2d at 245. In reaching this holding, we also noted that a plaintiff can recover for both breach of contract and fraud when the plaintiff has been fraudulently induced (through false statements about specific facts) into making a contract:

“ ‘There are a number of situations in our law whereby a plaintiff may derive benefits from a contract and yet still recover for tortious action concerning the contract, such as misrepresentation and deceit. There is a line of cases wherein the facts show misrepresentations concerning the goods that the buyer purchases; e.g., a buyer purchases a horse that the seller maintains has two good eyes, and the buyer later discovers that one of the eyes is blind. In this type of situation [fraudulent inducement], the buyer need not forgo the benefit received under the contract in order to sue for the misrepresentations. See Mutual Sav. Life Ins. Co. v. Osborne, 245 Ala. 15, 15 So.2d 713 (1943); Moore v. Oneonta Motor Company, 223 Ala. 510, 137 So. 301 (1931); Fairbanks, Morse and Co. v. Dees, 220 Ala. 41, 126 So. 624 (1929).’ ”

Deupree, 522 So.2d at 244 (quoting National Sec. Fire & Cas. Co. v. Vintson, 414 So.2d 49, 50-51 (Ala.1982)). While the Deupree decision characterized the alleged fraud at issue in that case as fraudulent suppression, 522 So.2d at 244 (“[w]e hold that the fraud alleged in this case was not fraud in the inception of the contract, but in fraudulent concealments after the contract was made”), given the fact that the plaintiffs had not yet closed on their town-home and the fact that they alleged that they would not have closed on the town-home if they had not been lied to, the fraud alleged in Deupree appears to favor a claim for fraudulent inducement (to close on the townhome and “complete” the contract). Regardless, it is clear that to assert a fraud claim.that stems from the same general facts as one’s-breach-of-contract claim, the fraud claim must be based on representations independent from the promises in the contract and must independently satisfy the elements of fraud. Deupree, 522 So.2d at 245.

However, it is a universally held principle that the “mere failure to perform a [contractual] promise does not constitute fraud.” John Brown Automation, Inc. v. Nobles, 537 So.2d 614, 618 (Fla.Dist.Ct App.1989). In fact, a party to a contract may intentionally, and even in bad faith (except in the insurance context), see American Cast Iron Pipe Co. v. Williams, 591 So.2d 854, 857 (Ala.1991), break a contractual promise without that action becoming a fraud or other tort. While perhaps we have not clearly déscribed the difference between breach of contract and fraud, I find the following discussion from a Florida court to be very helpful and accurate:

“The appealed order was entered before the Florida supreme court issued its decision in HTP, Ltd. v. Lineas Aereas Costarricenses, S.A, 685 So.2d 1238 (Fla.1996). HTP emphasizes the distinctions between a suit for fraud in inducing the contract and a suit for breach of contract. The court explained these are two very different causes of action with separate and consistent remedies. 685 So.2d at 1239. The HTP court further explained the reason for retaining a cause of action for fraud in the inducement by quoting a widely cited Michigan, case, Huron Tool and Eng’g Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 532 N.W.2d 541, 545 (1995):
“ ‘The distinction between fraud in the inducement and other kinds of fraud is the same as the distinction drawn by a New Jersey federal district court between fraud extraneous to the contract and fraud interwoven with the breach of contract. With respect to the latter kind of fraud, the misrepresentations relate to the breaching party’s performance of the contract and do not give rise to an independent cause of action in tort.’
“Id. at 1240. If a fraud is perpetrated which induces someone to enter into a contract, there..is a cause of action for fraud and the remedies attendant to that particular tort are available. If there is no fraud inducing someone to enter into a contract, but the contract is breached, the cause of action sounds in contract and contract remedies are available. The fact that the measure of damages may be the same for both causes of action does not make the fraud claim disappear. It is no more desirable to have tort law drown in a sea of contract than to have contract law drown in a sea of tort. The notion that a knowing fraud perpetrated to induce someone to enter into a contract can be extinguished by the simple expedience of including the fraudulent representation in the contract makes no sense. The problem appears to be that there is a lot of loose language being used to describe these principles and the confusion is compounded with almost every case.
“What the above-quoted language from Huron Tool means is no mystery and is already explained in existing Florida law. John Brown Automation, Inc. v. Nobles, 537 So.2d 614 (Fla. 2d DCA 1988), review denied, 547 So.2d 1210 (Fla.1989). To understand it merely requires an appreciation of the distinction between fraud in the inducement and fraud in the performance of a contract. The New Jersey case referenced in the Huron Tool opinion is plainly a fraud in the performance case. Public Service Enterprise Group, Inc. v. Philadelphia Elec. Co., 722 F.Supp. 184, 201 (D.N.J.1989).
“A few examples may be helpful. Suppose someone offers to sell you a particular emerald for $5,000 and, in order to induce you to buy it, represents to you that it is ‘top quality’ and that it has not been filled. You buy it based on the factual representation that the stone is unfilled but later you learn that it, in fact, had been filled. If the seller knew the emerald had been filled but lied in order to trick you into agreeing to buy it, you have a cause of action for fraud with all its attendant remedies. You may also have an action for breach of contract. The fact that the same measure of damages (the difference in value between a filled emerald and an unfilled emerald) may be available under both the tort and the breach of contract does not cause the tort to disappear. Nor does the inclusion of the fraudulent representation as an express warranty in the contract preclude the tort remedy.
“Suppose, on the other hand, on December 1, 1997, the same person enters into a contract with you pursuant to which, in exchange for your payment of $5,000, he will deliver to you on January 1, 1998 a ‘top quality,’ unfilled emerald. If, on January 1, 1998, he instead delivers an emerald that has been filled, he has only breached the contract. It is immaterial whether, when he delivered the emerald on January 1,1998, he knew the emerald was filled. This is breach of contract pure and simple and cannot be converted into a fraud. Nor is it a fraud if the emerald is not ‘top quality’ because such a representation concerning the quality of the product is essentially opinion, not fact, and the characteristics of the product are a matter that the parties can expect to control by contract. HTP at 1240. The essential difference lies in the nature of fraud itself, which is a knowing false statement of fact made with the intent that it cause action in reliance and it does cause such action to the detriment of the victim of the knowing false statement. In a fraud in the inducement situation, if there is damage based on a decision to contract that would otherwise not be made, a cause of action for fraud exists. There isn’t necessarily damage where there is fraud, which is why no cause of action for fraud exists unless there is damage due to fraud that is separate from damages that may result from any subsequent contractual breach. This principle has nothing to do with the economic loss rule. The economic loss rule does not preclude a tort claim which is based on conduct which is separate and distinct from conduct constituting a breach of contract, if the fraud itself causes damage.”

La Pesca Grande Charters, Inc. v. Moran, 704 So.2d 710, 712-13 (Fla.Dist.Ct.App. 1998) (footnotes omitted).

The difficulty with the Dickinsons’ fraud claims is not only that they are unclear as to what type of fraud they assert was committed, but also that the claims appear, to a great degree, to sound in breach of contract, not fraud. For example, count one of the Dickinsons’ complaint (titled “Fraud”) states:

“8. At the time the home was constructed by [Land Developers], representations were made to [the Dickin-sons] as set out in paragraph 5.... [These representations are quoted above in Part III of the main opinion as A. through F., -.882 So.2d at 298.] Said representations were false and [Land Developers], knew they were false. [Land Developers] intentionally suppressed the fact that the construction was not done pursuant to the contract documents which caused the home to have numerous defects and which [Land Developers] knew or should have known. Among said defects are the following which [Land Developers] knew or should have known: [Here appears the Dickin-sons’ list of defects that is quoted above in Part III of the main opinion as a. through g.].
“9. [The Dickinsons] believed the said representations, reasonably relied on them, and innocently acted upon them to their detriment by having their home constructed by [Land Developers] and by paying [Land Developers] for improper and defective work.”

Many, if not all, of the representations listed in A. through F. in Part III of the main opinion, 882 So.2d at 298, appear to be purely contractual promises, such as: Land Developers’ promises to hire “competent subcontractors,” to work in a “workmanlike manner,” and to build the home in “the best possible manner” and “in accordance with the ... contract documents.” The argument that these promises can support an independent fraud claim, rather than only a breach-of-contract claim, seems difficult, if not impossible, to maintain when merely based upon the allegation that the house was not built in a “workmanlike manner” or‘“in accordance with the contract documents.”

The Dickinsons’ other count alleging fraud, count three (“Fraudulent Inducement”), appears to suffer from the same problems in that the allegations appear to be based on the claim that Land Developers did not perform in accordance with the contract:

“15. [The ' Dickinsons] aver that [Land Developers] represented to [the Dickinsons] that their home would be delivered to them free from defects and if there were defects, the said defects would be promptly cured.
' “16. In fact, the home was not free from defects, was not fit for its ordinary and particular uses, and the defects have not been cured despite repeated assurances that they would be.
“17. The representations above, which were made to [the Dickinsons], were in fact false and fraudulent. Said representations made by [Land Developers] induced them to enter a contract with said [Land Developers]. They were in fact relied upon by [the Dickin-sons] in purchasing and contracting with [Land Developers] to construct their home. [Land Developers] intended that [the Dickinsons] should rely on said false representations.”

This claim is unlike the fraud alleged in Deupree, where an independent misrepresentation about a specific material fact compelled the plaintiffs to go through with a closing that would otherwise not have been completed.

While Land Developers’ motion for a summary judgment was predicated solely on the two-year limitations period in § 6-5-221(a), it is well established that this Court can affirm the ruling of a trial court for any valid reason, even one not presented to or considered by the trial court.” Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79, 81 (Ala.2000) (citing Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988)). For the reasons stated above, I have serious reservations about the Dick-insons’ fraud claims, and I am tempted to recommend that this Court affirm the trial court’s ruling with respect to some or all of those claims. However, I believe that in this case it is appropriate to allow the trial court the first opportunity to examine the issue.

JOHNSTONE, Justice

(concurring specially).

I concur fully in the main opinion. I add some observations of my own.

While some of the alleged promises or representations the Dickinsons attribute to Land Developers may be mere contractual agreements that will support only contract claims, others would support fraud claims. For instance, if, as alleged, “[Land Developers falsely] represented to [the Dickin-sons] that [Land Developers] had done all of the work in conformance with contract documents, plans, and specifications,” in order to induce the Dickinsons to make payments on the contract that would be due only if the work were, in fact, done “in conformance with the contract documents, plans, and specifications,” and if, as alleged, the Dickinsons “believed the said representations, reasonably relied on them, and innocently acted on them to their detriment by ... paying [Land Developers] for improper and defective work,” all of the classic essential elements of fraud would be present. See Crowder v. Memory Hill Gardens, Inc., 516 So.2d 602, 604 (Ala.1987) (“The elements of an actionable fraudulent representation are 1) a false representation 2) concerning a material existing fact, which was 3) [reasonably] relied upon by the plaintiff 4) to his detriment.”).

      . Ala.Code 1975, § 6-2-3, provides:
      "In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

      . At some point, after numerous failed attempts by the homebuilder to fix problems, a reasonable person in this situation would seek assistance from another expert (as the Dickin-sons eventually did in 1999). Such numerous failed attempts could make a home buyer "privy to facts that would 'provoke inquiry in a [person] of reasonable prudence, and which, if followed up, would have led to the discovery’ ” of the true source of the defects. Auto-Owners, supra, 822 So.2d at 1195. However, we cannot say as a matter of law that, in this case, a reasonable person would have sought such outside assistance sooner than did the Dickinsons.

      . Ala.Code 1975, § 2-28-9, provides:
      "Persons engaged in subterranean termite eradication and control work shall be required to file a monthly report with the commissioner containing such information relative to work performed as may be required by rules and regulations duly adopted as authorized under provisions of this chapter in order that it may be determined whether persons having been issued a permit are complying with the requirements of this chapter. Every person engaged in subterranean termite eradication and control work shall make an annual inspection of each job done during the term of the contract and shall report to the building owner in each instance as to whether or not there has been a reinfestation of subterranean termites. If a contract for termite eradication work provides for inspections of such work at intervals of less than one year, such inspections shall be made as required by the terms of the contract, and failure or refusal to make such required inspections or any retreatment or other related work as required by a contract shall constitute a valid and sufficient reason for revocation of
      the permit.”