author: PER CURIAM. JOHNSTONE, Justice

text:
    VOYAGER INSURANCE COMPANIES et al. v. Jackie B. WHITSON and Dannie Hall.
    1000678.
    Supreme Court of Alabama.
    May 9, 2003.

      Michael L. Bell and William H. King III of Lightfoot Franklin & White, LLC, Birmingham; and Frank G. Burt of Jorden Burt, LLP, Miami, Florida, for appellants.
    Lloyd W. Gathings and Misha Y. Mullins of The Gathings Law Firm, Birmingham; Ralph D. Gaines of Gaines, Gaines, Rasco & Little, P.C., Talladega; Harvey B. Campbell, Jr., of Campbell & Campbell, Talladega; Huel M. Love, Jr., of Love, Love & Love, Talladega; William L. Utsey of Utsey & Utsey, Butler; and Donald W. Lang, Sylacauga, for appellees.
   PER CURIAM.

Voyager Insurance Companies, Voyager Guaranty Insurance Company, Voyager Life and Health Insurance Company, Voyager Life Insurance Company, Voyager Group, Inc., and Voyager Property and Casualty Insurance Company (hereinafter collectively referred to as “Voyager”) appeal from a class-certification order obtained by Jackie Whitson and Dannie Hall (hereinafter collectively referred to as “the customers”), holders of either Voyager credit-life or credit-property insurance, in an action alleging that the premiums Voyager charged for the insurance were improperly calculated on the total of the payments or on some other amount greater than the amount actually financed. We vacate the class-certification order and remand the case.

Facts and Procedural History

Voyager underwrites and sells insurance for credit transactions. Voyager sold credit-property insurance and credit-life insurance through retailers, rent-to-own businesses, and finance companies in Alabama. The insureds under those policies were the credit customers of the retailers, rent-to-own businesses, and finance companies. After the credit customers financed their loans with one of the aforementioned entities, the amount of the Voyager premiums were added to the amount financed in their loan contracts.

The retailers and finance companies who sold Voyager credit-life insurance and credit-property insurance to their customers were acting as agents of Voyager. Those retailers and finance companies entered into agency agreements with Voyager, pursuant to which they received a commission for writing the insurance coverage. Voyager also obtained from the State of Alabama licenses to sell insurance for the various employees of the retailers and finance companies. Voyager provided general training to the retailers and finance companies and each program was designed for the needs of the entity being trained. The retailers and finance companies then provided then- own program to train their salespersons to offer Voyager insurance to their customers. The salespersons would then sell Voyager credit-life and credit-property insurance to customers by making oral sales presentations. Those presentations included information on, among other things, the availability of the product, the rate of credit insurance, and the coverage provided by the Voyager policies.

Thomas McGraw, president of Voyager, testified that Voyager received approval from the State Department of Insurance for all credit-life insurance rates and for the forms it used in Alabama during the relevant period. McGraw testified that Voyager used the “total of payments” method of rating credit-life insurance until May 1996, when it began to rate credit-life insurance on the modified “net plus one payment” formula.

McGraw likewise testified that Voyager received approval from the State Department of Insurance for all credit-property insurance rates and forms used in Alabama during the relevant period. McGraw testified that Voyager authorized the rating of credit-property insurance on the “total of payments” method, so that the premiums were calculated on the total amount of the payments, an amount obviously greater than the amount financed. McGraw testified, however, that the premiums on Voyager’s credit-property insurance were rated in various ways, depending on the nature of the transaction between the creditor and the borrower and on the borrower’s purchase election. For example, McGraw testified that consumer finance companies typically write single-interest coverage that protects only the loan and the creditor’s interest and that retailers generally write dual-interest coverage that protects both the borrower and the retailer. McGraw also testified that retailers use varying methods to calculate premium amounts — some use the actual value of goods, and others use the total of the payments.

In October 1993, Jackie Whitson purchased a Voyager credit-life insurance policy when she secured an installment loan from Central Finance, Inc., in Ashland. The policy’s premium was calculated on the total payments of the loan, not the amount financed. On December 22, 1993, Whitson purchased another Voyager credit-life insurance policy when she secured an installment loan from The Financial Store, Inc., in Talladega. This policy premium was calculated by the total-of-payments method. Whitson obtained another Voyager credit-life insurance policy in An-niston on December 23, 1993, through Columbus Finance Company of Anniston. This policy premium was also calculated using the total-of-payments method.

Dannie Hall entered into a loan transaction with Columbus Finance Company of Talladega in July 1992. Columbus Finance Company charged Hall $17.76 for a Voyager credit-property insurance policy. This premium was calculated based on the total payments under the loan. Hall obtained an additional loan from Columbus Finance Company in December 1992. Columbus Finance Company charged Hall $17.31 for Voyager credit-property insurance; the premium was calculated on the total payments of the loan. Hall purchased a Voyager credit-property insurance policy and a Voyager credit-life insurance policy from Lorch when he secured an installment loan in March 1994. The premium payments were $8.68 for the credit-property insurance and $3.56 for the credit-life insurance; both premiums were calculated by the total of payments of the loan. Hall bought another Voyager credit-property insurance policy from Lorch in May 1994. The premium of $12.61 was calculated on the total payments of the loan.

On June 20, 1994, Jackie Whitson and Kathy Ann Ellen sued Voyager in the Marengo Circuit Court on behalf of a class of “individuals who, during the course of executing a consumer loan agreement in Alabama, have purchased a policy of Credit Property Insurance and/or a policy of Non-Filing Insurance issued and/or serviced by the defendants [Voyager].” The Marengo Circuit Court entered an order conditionally certifying the class. In July 1994, Voyager removed the case to the United States District Court for the Southern District of Alabama. That court then transferred the case to the United States District Court for the Northern District of Alabama. In August 1998, Voyager filed a “.Renewed Motion to Transfer,” and the case was transferred to the Talladega Circuit Court in 1999.

The complaint has been amended four times, among other things, to change class representatives and legal theories. As last amended, the complaint named Rena Yates, Whitson, and Hall as class representatives and contained 11 counts. Yates was ultimately dismissed as a named plaintiff for personal reasons not connected to the merits of certification. On April 12, 2000, Voyager filed a motion for a summary judgment, which is pending. In a partial class action settlement agreement, the parties settled six of the claims, those pertaining to “nonfiling insurance” and “involuntary-unemployment insurance.” The customers moved for class certification as to the five remaining claims: fraud, deceit, and fraudulent suppression in the sale of credit-life insurance; fraud, deceit, and fraudulent suppression in the sale of credit-property insurance; negligent or wanton hiring and supervision of agents selling credit-life and credit-property insurance; unjust enrichment in the sale of credit-life insurance; and unjust enrichment in the sale of credit-property insurance.

An evidentiary hearing was held on June 21, 2000, and August 25, 2000. On December 1, 2000, the trial court issued the certification order, which certified the class for the negligent- or wanton-hiring-and-supervision and unjust-enrichment claims pursuant to Rule 23(b)(3), Ala. R. Civ. P., but denied certification of the claims for fraud, deceit, and fraudulent suppression. The order described the certified class and the claim period as follows:

“Any Alabama residents who, during the course of executing a consumer loan agreement in Alabama, have been charged for or paid premiums for credit property insurance and/or credit life insurance issued and/or serviced by, [Voyager]. The Class shall have two subclasses consisting of the following:
“ ‘Credit Property Insurance Subclass’: All individuals ... residing in the State of Alabama at the time of the transaction, who, prior to the date of the Court’s class certification order, (1) entered into a loan or sales financing agreement with one or more creditors which were agents of [Voyager]; (2) were charged premiums for credit property insurance in connection with the loan or sales financing agreement; and (3) such credit property insurance was sold, underwritten and/or issued by [Voyager]; and (4) the premiums were calculated on the total of payments or some other amount greater than the amount financed; provided that the

Credit Property Insurance Subclass shall not include any individual:

“(a) whose transaction was with Farmer Furniture Company and was included in the settlement in Whitson v. Whorehouse Home Furnishings Distributor, d/b/a Farmers Furniture, in the Circuit Court for Talladega County, Alabama;
“(b) whose transaction was with Heil-ig-Meyers Furniture Company
“(c) who has, as of the date upon which the Court enters a final judgment in this action, settled or released claims, or obtained a judgment, against [Voyager] based upon the sale, underwriting, or issuance of credit [property] insurance in the State of Alabama; or
“(d) who is deceased or has filed a petition under the bankruptcy laws of the United States under which any of the creditor agents of [Voyager] was a creditor at the time of the certification of the class described herein or at the time of any Final Judgment entered.

“ ‘Credit Life Insurance Subclass’: All individuals ... residing in the State of Alabama at the time of the transaction, who, prior to June 19, 1996, (1) entered into a loan or sales financing agreement with one or more creditors which were agents of [Voyager]; (2) were charged premiums for credit life insurance in connection with the loan or sales financing agreement; and (3) such credit life insurance was sold, underwritten and/or issued by [Voyager]; and (4) the premiums were calculated on the total of payments or some other amount greater than the amount financed; provided that the Credit Life Insurance Subclass shall not include any individual:

“(a) whose transaction was with Farmer Furniture Company and was included in the settlement in Whitson v. Wharehouse Home Furnishings Distributor, d/b/a Farmers Furniture, in the Circuit Court for Talladega County, Alabama;
“(b) whose transaction was with Heil-ig-Meyers Furniture Company
“(c) who has, as of the date upon which the Court enters a final judg- • ment in this action, settled or released claims, or obtained a judgment, against [Voyager] based upon the sale, underwriting, or issuance of credit life insurance in the State of Alabama; or
“(d) who is deceased or has filed a petition under the bankruptcy laws of the United States under which any of the creditor agents of [Voyager] was a creditor at the time of the certification of the class described herein or at the time of any Final Judgment entered.
“[T]he class period for the ‘Credit Property Insurance Subclass’ claims shall be from two years prior to the filing of this case (June 8, 1992) to [December 1, 2000], and the class period for the ‘Credit Life Insurance Subclass’ claims shall be from two years prior to the filing of this case (June 8, 199[2]) to June 19, 1996.”

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

Rule 23(b)(8) Criteria

In order to obtain certification of a class, a plaintiff must establish all of the criteria set forth in Rule 23(a), Ala. R. Civ. P., and one of the criteria set forth in Rule 23(b). Rule 23(a) provides:

“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Rule 23(b) provides as follows:

“An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) the prosecution of separate actions by or against individual members of the class would create a risk of
“(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

The trial court, although declining to certify a class as to the fraud, deceit, and fraudulent-suppression claims found:

“The elements of Plaintiffs’ claims for negligent or wanton hiring and supervision of agents selling credit property insurance [and credit-life insurance] are:
“ ‘A person conducting an activity through servants, or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
“ ‘(a) In giving improper or ambiguous orders or in failing to make proper regulations; or
“ ‘(b) In the employment of improper persons or instrumentalities in work involving risk of harm to others;
“ ‘(c) In the supervision of the activity; or
“ ‘(d) In permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.’
“Ledbetter v. United American Insurance Co., 624 So.2d 1371, 1373 n. 5 (Ala. 1993). In the present case, there are common issues of law and fact on all the elements of this tort based upon the testimony of Thomas McGraw that: 1) Voyager did not instruct their agents to tell the customers that credit property insurance was calculated on the total of payments and he has no knowledge that agents ever gave such information to the customers; and 2) that Voyager did not instruct its agents to tell customers that the Alabama law did not allow premiums to be calculated on the total of payments and he has no knowledge that the agents ever gave such information to customers.”

Voyager argues that the customers failed to satisfy the requirements of both Rule 23(a) and Rule 23(b)(3) as to then-negligent- or wanton-hiring-and-supervision claim and unjust-enrichment claims. Voyager contends that Rule 23(b)(3) is not satisfied because numerous issues predominate and make the class unmanageable. A trial court’s class-certification order will not be disturbed without a showing that the trial court exceeded the permissible limits of its discretion in entering the order. General Motors Acceptance Corp. v. Dubose, 834 So.2d 67, 70 (Ala.2002).

We have held that a trial court exceeded the permissible limits of its discretion in certifying a class action when the party seeking the class certification failed to produce sufficient evidence to meet the requirements of Rule 23. See, e.g., Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002); Compass Bank v. Snow, 823 So.2d 667 (Ala.2001). Therefore, “we must consider the sufficiency of the evidence submitted by the plaintiff[s].” Compass Bank, 823 So.2d at 672. We also recognize that “ ‘sometimes it may be necessary for the court to probe beyond the pleadings before coming to rest on the certification question.’ ” Alfa Life Ins. Corp. v. Hughes, 861 So.2d 1088, 1099 (Ala.2003) (quoting Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 188 (3d Cir.2001). We conclude that the evidence presented is insufficient to satisfy the requirements of Rule 23(b)(3); consequently, Voyager’s arguments regarding the requirements of Rule 23(a) are pretermitted.

A. Predominance

“The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In considering whether questions of law or fact common to the class members predominate over questions applicable only to individual class members, a court must evaluate “what value the resolution of the class-wide issue will have in each class member’s underlying cause of action.” Rutstein v. Avis Rentr-A-Car Sys., Inc., 211 F.3d 1228, 1234 (11th Cir.2000). Courts examine the substantive law applicable to the claims and determine whether the plaintiffs presented sufficient proof that common questions of law or fact predominate over individual claims. See Ex parte Green Tree Fin. Corp., 723 So.2d 6 (Ala.1998); Smart Prof'l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245 (Ala.2002).

The customers allege in their complaint that Voyager negligently or wantonly hired and/or supervised its agents and that that negligent or wanton hiring and/or supervision resulted in wrongful conduct comprising fraudulent suppression, fraud, and deceit in the sale of Voyager credit-property and credit-life insurance. The customers argue that common issues do predominate as to their negligent- or wanton-hiring-and-supervision claim because, they argue, the claim is based on Voyager’s common course of conduct of charging premiums based on the total of payments under the loan installment contracts the customers had with Voyager’s agents, as opposed to charging premiums based upon the amount financed under the installment contracts. See Cheminova America Corp. v. Corker, 779 So.2d 1175, 1181 (Ala.2000) (quoting trial court’s order, which stated that common issues predominate where “ ‘a common course of conduct has been alleged arising out of a common nucleus of operative facts’ ”). The customers contend that their claim meets the requirements of Rule 23(b)(3) because: 1) potential class members would have little or no interest “in individually controlling the prosecution or defense of separate actions,” Rule 23(b)(3)(A); 2) at the time they submitted their briefs to this Court, no other cases in Alabama had been “already commenced by or against members of the class” regarding similar credit-property or credit-life insurance, Rule 23(b)(3)(B); 3) the concentration of their claim in Talladega County would result in judicial economy, Rule 23(b)(3)(C); and 4) the calculation of damages for each member of the class could be accomplished by a mathematical calculation, Rule 23(b)(3)(D).

Voyager contends that its alleged failure to disclose to individual customers the methods of determining the premiums to be charged for the credit-life and credit-property insurance is the conduct underlying the customers’ negligent- or wanton-hiring-and-supervision claim. Voyager argues . that the customers would have to prove that the alleged oral misrepresentations or omissions were made to each class member in order to maintain the negligent- or wanton-hiring-and-supervision claim. Voyager asserts in its brief to this Court that this would require an evidentia-ry demonstration by each class member of, among other things,

“his or her knowledge of the rating of credit life and property insurances, ... [his or her] motivation for purchasing such insurance, what he or she was told concerning the insurance premiums and coverages by the creditor’s salespersons, whether he or she relied on the alleged disclosures or omissions, and whether such reliance was reasonable or justifiable under the circumstances prevailing with regard to that class member.”

Voyager contends that each class member would be required to offer proof as to the individual salespersons the class member encountered and of the content of the communications between the salesperson and the class member. Voyager contends that this would result in the trial court’s holding “individual mini-trials” where common questions of law or fact do not predominate.

Generally, the predominance requirement of Rule 23(b)(3) is not met in cases that involve both oral and written misrepresentations. Ex parte Household Retail Servs., Inc., 744 So.2d 871 (Ala.1999). Because of our determination that there is a lack of commonality based upon factual issues regarding reliance, we do not reach the question whether this case fits within the exception to .the general rule recognized in Household — when “no material variation exists” between the oral statements made to the class members or between the oral and written statements made to the class members. Ex parte Household Retail Servs., Inc., 744 So.2d at 878.

The relevance of reliance stems from the significance of the underlying conduct of the person allegedly hired or supervised. The customers argue that Ledbetter v. United American Insurance Co., 624 So.2d 1371, 1373 n. 5 (Ala.1993), provides the elements of negligent or wanton supervision and that a showing of an agent’s incompetency is not required. However, Ledbetter does not set out the elements of negligent or wanton supervision. Ledbet-ter addresses only the requirement that a plaintiff “ ‘must show or demonstrate that [the employer] had notice or knowledge (actual or presumed) of [the employee]’s alleged incompetency for [the employer] to be held responsible.’ ” 624 So.2d at 1373 (quoting Perkins v. Dean, 570 So.2d 1217, 1219-20 (Ala.1990)). The elements of a negligent- or wanton-hiring-and-supervision claim cited in the trial court’s class-certification order and by the customers are merely mentioned in a footnote describing Ledbetter’s theory of negligent supervision.

The elements of negligent supervision were addressed in Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098 (Ala.1983), as follows:

“ ‘In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.’ ”

425 So.2d at 1100 (emphasis added); see also Sanders v. Shoe Show, Inc., 778 So.2d 820, 824 (Ala.Civ.App.2000). A party alleging negligent or wanton supervision and hiring must also prove the underlying wrongful conduct of employees. Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999).

The record before us includes that Voyager, through its president, has stated that no agent was ever instructed to tell customers that Voyager credit-property insurance was calculated on the total of payments and that Voyager is unaware of that information’s being given to its customers. Also, according to the record, Voyager did not instruct its agents to tell customers that Alabama law did not allow premiums to be calculated on the total of payments, and it has no knowledge that the agents ever gave that information to customers. We also have nothing other than speculation to suggest that a single agent gave that information to a single customer. We have no affidavits from agents or sales representatives contradicting the impression of silence on this central issue. And, in light of those omissions from the record, the customers’ argument that the sales representatives were silent on this issue because they were negligently supervised is largely undisputed. Furthermore, we have no evidence as to any standardized representations on other aspects of the sale of the credit-life and credit-property insurance. Hence, assuming that this conduct was wrongful, for purpose of review of the certification order, the requisite underlying wrongful conduct of the sales representative constitutes fraudulent suppression of the fact that the premium was computed based on the total number of payments coupled with other unknown statements that may or may not constitute misrepresentations.

This Court dealt at length with the role of reliance in a fraudulent-suppression claim in Ex parte Household Retail Servs., Inc., 744 So.2d at 881, as follows:

“In connection with the Cosbys’ fraud claim, they did not produce sufficient evidence indicating that these representations were standardized. Thus, class members very well might have relied on these varying representations instead of the alleged nondisclosure. Of course, the class members might not have relied on the representations but instead on the nondisclosure. The point is that we do not know what the class members relied upon, and, therefore, do not know whether the kinds of reliance varied from class member to class member. The Cosbys were apparently unable to produce evidence indicating that the various forms of reliance by each class member did not materially vary, as it was their initial burden to do in order to establish that common questions of fact predominate.”

This is also the case here. We do not know whether the customers relied on varying representations made by the sales representatives instead of on the alleged nondisclosure or, for that matter, whether the information allegedly not disclosed would have made a difference to a consumer determined to close a transaction for which credit was essential. In fact, Hall testified that he continued to purchase credit-life and credit-property insurance in his dealings with Columbus Finance, even within two months of the evidentiary hearing. It is important to note that the trial court was equally impressed with the obstacle to class certification of the fraud claims created by the individual issues of reliance. Specifically, the trial court stated:

“While the Alabama Supreme Court ‘has not thus far adopted a blanket prohibition against the certification of a fraud class action’ [Ex parte Household Retail Servs., Inc., 744 So.2d 871, 881 (Ala.1999) ], the reasoning of the Court in Ex parte Household Services in denying certification on the fraud claims is also applicable to the facts in this case. Therefore, the Court finds that the plaintiffs’ credit property [and credit-life] insurance claims based on fraud and fraudulent suppression ... are not due to be certified for class action treatment.”

We therefore conclude that the trial court correctly recognized the problems to class certification posed by proof of reliance but erred in failing to apprehend the element of reliance in proof of the underlying wrongful conduct of the sales representatives in the customers’ claim of negligent or wanton hiring and supervision.

Voyager also argues that the customers’ unjust-enrichment claims fails to meet the predominance requirement. Voyager contends that in order to prove their unjust-enrichment claims, the customers would have to present facts showing that Voyager “holds money which was improperly paid to [Voyager] because of mistake or fraud.” Hancock-Hazlett Gen’l Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986). Voyager asserts that this would require evidence of each class member’s individual transaction with Voyager’s agents and evidence indicating that each class member relied on the alleged misrepresentations or omissions regarding Voyager’s premium-rating method.

In his dissent, Justice Johnstone contends that the customers’ unjust-enrichment claims do not require allegations and proof of either fraud or mistake of fact. He asserts that unjust-enrichment claims can be maintained when the money in question “in equity and good conscience belongs to plaintiff.” Mitchell v. H & R Block, Inc., 783 So.2d 812, 817 (Ala.2000). He points to Ross Jewelers, Inc. v. State, 260 Ala. 682, 72 So.2d 402 (1953), as an instance where this Court recognized unjust enrichment “as a valid theory for the recovery of excess sales taxes collected by a retailer from its customers.” 867 So.2d at 1077 (Johnstone, J., concurring in part and dissenting in part).

However, Ross Jewelers is distinguishable for several reasons.' First, it was not a class action, and it therefore does not assist us in resolving questions relating to compliance with Rule 23. Second, the plaintiff in Ross Jewelers did not commence an action grounded upon the common-law remedy of unjust enrichment. Instead, the plaintiff sued the State pursuant to Title 51, § 140, Code of 1940, a now-repealed part of the revenue code providing for appeals by a taxpayer from a final assessment. This Court, in ruling in favor of the State, determined that despite the fact that the State had incorrectly calculated the sales tax at issue, Ross Jewelers was not entitled to retain the excess taxes it had charged to its customers. The reference to unjust enrichment is found in this. Court’s statement that “[i]t would be an unjust enrichment for us to allow Ross Jewelers, Inc. to be the beneficiary of this fund.” Ross Jewelers, 260 Ala. at 690, 72 So.2d at 408. This one statement regarding unjust enrichment does not establish Ross Jewelers as precedent for using the remedy of unjust enrichment as “a valid theory for the recovery of excess sales taxes collected by a retailer from its customers.” 867 So.2d at 1077 (Johnstone, J., concurring in part and dissenting in part).

The customers’ unjust-enrichment claims in this case are grounded in mistake of fact, and individual evidence would be required to prove mistake of fact. The customers in their brief state that their unjust-enrichment claims are based on “equity/mistake.” Mistake of fact is essential to the customers’ unjust-enrichment claims, as evidenced by the language of the customers’ complaint, which states:

“Due to the actions of [Voyager], [charging premiums for credit-property and credit-life insurance that allegedly violate the Alabama Mini-Code, § 5-19-1 et seq., Ala.Code 1975, and Insurance Regulation 28], Plaintiffs and members of the plaintiff class paid monies to [Voyager] for said credit life insurance under mistake of fact, believing that the credit life insurance sold by [Voyager] was sold in compliance with all applicable state laws and regulations. To the contrary, Plaintiff and members of the plaintiff class were sold credit life insurance in amounts greater than allowed by Alabama law and regulations. As a result, [Voyager has] been unjustly enriched in the amount of all credit life insurance charges to the plaintiffs and members of the plaintiff class in excess of that allowed by Alabama law and regulations.”

(Emphasis added.)

Furthermore, the trial court’s • certification order states:

“In the present case, the evidence introduced at the hearing showed common issues of law and fact regarding whether the agents of Voyager informed the customers that the credit property [and credit-life] insurance premiums were calculated on the total of payments, whether the calculation was done on any of the paperwork, and, thus, whether the class members paid the excessive premiums due to mistake. Furthermore, evidence was submitted to support Plaintiffs’ claims that [Voyager] engaged in fraud, thus giving rise to a claim for unjust enrichment for the excessive premiums. Under both scenarios, there are common questions of law and fact.”

(Emphasis added.)

The dissenting opinion .contends that the common question presented here is the legal interpretation of the insurance regulations and the Alabama Mini-Code, § 5-19-1 et seq., Ala. Code 1975, and that individual mental states or operations are therefore not presented. This is the equivalent of an assertion of mistake of law as a ground for recovery. However, as previously noted, the complaint expressly refers to mistake of fact, not law. Good reason exists for carefully choosing words used in a complaint. See Stone v. Mellon Mortgage Co., 771 So.2d 451 (Ala.2000), in which this Court held:

“If a party with full knowledge of the facts wrongly interprets them, so that he misperceives their legal significance, that wrong interpretation does not constitute a mistake of fact.... [It] constitutes a mistake of law rather than a mistake of fact, and a mistake of law does not preclude the application of the voluntary-payment doctrine.
“1... [I]t is equally well settled that money voluntarily paid with full knowledge of the facts but by reason of mistake of law cannot be recovered/ ”

771 So.2d at 458 (quoting Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251, 257 (Ala.1978) (Torbert, C.J., concurring specially)).

We have held that plaintiffs fail to meet the predominance requirement of § 6-5-641, Ala.Code 1975, when their unjust-enrichment claim turns on individual issues of mistake of fact. Smart Prof'l Photocopy Corp., 850 So.2d at 1251-52. In Smart Professional Photocopy Corp., individual proof was required to show whether every class member paid invoices to Smart Professional Photocopy by mistake in a setting where, as is the case here, the plaintiff alleged a violation of a statute but did not contend that the Legislature had established a private right of action for violation of the statute. In this case, each class member would have to prove that he or she purchased Voyager credit-life or credit-property insurance under a mistake of fact or as a result of a fraudulent suppression with respect to how the premiums were calculated.

Class members would be required to demonstrate mistake of fact on an individual basis. The knowledge and sophistication of customers varies from individual to individual. In Smart Professional Photocopy Corp., we held:

“Because of the necessity in this case of proving each class member’s subjective state of mind, individual issues predominate over the customers’ claims. The customers cannot prove that each member paid under the same mistake of fact nor can they determine the extent of each class member’s knowledge upon payment of the invoice from Smart. Thus, the customers cannot satisfy their burden of proof as to each member’s payment by mistake without individual inquiries.”

850 So.2d at 1251. As was the case in Smart, the customers here cannot satisfy their burden of proof as to each class member’s purchase by mistake without individual inquiries.

The same lack of commonality of reliance previously addressed in connection with the claim for negligent or wanting hiring and supervision permeates the customers’ claim of unjust enrichment grounded in fraudulent suppression. We conclude that individual issues of fact predominate over the customers’ unjust-enrichment claims.

B. Superiority

When individual issues predominate over the common claims, manageability of the action as a class is not possible. Smart Prof'l Photocopy Corp., 850 So.2d at 1252; Reynolds Metals Co., 825 So.2d at 108. The customer’s claims fail to meet the superiority requirements of Rule 23(b)(3).

Conclusion

The trial court exceeded the permissible limits of its discretion in certifying the two subclasses in this case under Rule 23(b)(3). We vacate the class-certification order and remand the cause for further proceedings consistent with this opinion.

ORDER VACATED; CASE REMANDED.

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

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in decertifying the classes for the pursuit of the claims for negligent or wanton hiring and supervision of agents and any claims for unjust enrichment based on either fraud or mistake-of-fact. I respectfully dissent, however, from decer-tifying the classes for the pursuit of the claims for unjust enrichment based on the defendants’ collection of premiums exceeding the maximum rate allowed by Alabama insurance regulations or the Alabama Mini-Code, § 5-19-1 et seq., Ala.Code 1975. This last category of claims would not depend on “any questions affecting only individual members,” Rule 23(b)(3), Ala. R. Civ. P.

Not all valid unjust enrichment claims include fraud or mistake-of-fact as an essential element. That is, not all valid unjust enrichment claims require allegations and proof of either fraud or mistake-of-fact. The gravamen element of unjust enrichment can be that the money “ ‘in equity and good conscience belongs to plaintiff.’ ” Mitchell v. H & R Block, Inc., 783 So.2d 812, 817 (Ala.2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)). For instance, unjust enrichment has been recognized as a valid theory for the recovery of excess sales taxes collected by a retailer from its customers. Ross Jewelers, Inc. v. State, 260 Ala. 682, 690, 72 So.2d 402, 408 (1953).

The plaintiffs’ complaint as last amended alleges in pertinent part:

“55. The selling of credit life insurance and the premium charged for credit life insurance are regulated by the Alabama Mini-Code (Ala.Code § 5 — 19— 20(a)) and the Department of Insurance for the State of Alabama (Regulation 28). The Alabama Mini-Code provided at all times pertinent to this action that ‘Insurance with respect to any credit transaction shall not exceed the approximate amount and term of the credit.’ Ala.Code § 5-19-20(a). Regulation 28 provided at all times pertinent to this action that the amount of credit life insurance sold shall never exceed the approximate unpaid balance of the loan. The premiums allowed to be charged for credit life insurance are based upon the amount of insurance sold.
“56. The amount of credit life insurance sold by the defendants to the named plaintiffs and the members of the plaintiff class and the premiums charged for that credit life insurance were in direct violation of the Alabama Mini-Code and Regulation 28 in that the amount of insurance sold at all times exceeded the ‘approximate amount and term of the loan’ and the approximate unpaid balance of the loan. As a result, the premiums charged for said insurance exceeded the maximum allowed by the Alabama Mini-Code and Regulation 28.
“57. Due to the actions of the defendants, Plaintiffs and members of the plaintiff class paid monies to the defendants for said credit life insurance under mistake of fact, believing that the credit life insurance sold by the defendants was sold in compliance with all applicable state laws and regulations. To the contrary, Plaintiffs and members of the plaintiff class were sold credit life insurance in amounts greater than allowed by Alabama law and regulations. As a result, Defendants have been unjustly enriched in the amount of all credit life insurance charges to the plaintiffs and members of the plaintiff class in excess of that allowed by Alabama law and regulations.
“61. The amount of credit property insurance sold by the defendants to the named plaintiffs and the members of the plaintiff class and the premiums charged for that credit property insurance were in direct violation of the Alabama Mini-Code and Regulation 93 in that the amount of insurance sold at all times exceeded the amount allowed by the provisions set forth above. As a result, the premiums charged for said insurance exceeded the maximum allowed by the Alabama Mini-Code and Regulation 93.
“62. Due to the actions of the defendants, Plaintiffs and members of the plaintiff class paid monies to the defendants for said credit property insurance under mistake of fact, believing that the credit property insurance sold by the defendants was sold in compliance with all applicable state laws and regulations. To the contrary, Plaintiffs and members of the plaintiff class were sold credit property insurance in amounts greater than allowed by Alabama law and regulations. As a result, Defendants have been unjustly enriched in the amount of all credit property insurance charges to the plaintiffs and members of the plaintiff class in excess of that allowed by Alabama law and regulations.” (C. 3623-3627.)

“ ‘[T]he allegations of the complaint are construed in a light most favorable to the complainant, with all doubts and allegations resolved in his favor.’ ” Lavoie v. Aetna Life & Cas. Co., 374 So.2d 310, 311 (Ala.1979) (quoting Pruitt v. Pruitt, 343 So.2d 495, 497 (Ala.1977)). So construed for this particular theory of unjust enrichment, the allegations in paragraphs 57 and 62 that the plaintiffs paid “under mistake of fact, believing that the ... insurance ... was sold in compliance with all applicable state laws and regulations” are sur-plusage.

The gravamen of the claims the classes are certified to pursue in the case before us is that, in the words of the class certification order, “the premiums were calculated on the total of payments or some other amount greater than the amount financed.” The classes include only plaintiffs who were charged such premiums. Therefore, this element will not depend on “any questions affecting only individual members.” Rule 23(b)(3).

Next, the truth or falsity of the allegations that premiums so calculated exceed the maximum allowed by Alabama insurance regulations and the Alabama Mini-Code depends, not on “any questions affecting only individual members,” Rule 23(b)(3), but on the legal interpretation of the insurance regulations. and the Mini-Code as they apply to all members of each class commonly. This theory does not depend on allegations or proof of such individualized occurrences as conversations or presentations or such individualized mental states or operations in the class members as knowledge, understandings, beliefs, reliance, or mistakes.

Whether this theory constitutes “a claim upon which relief can be granted” that would withstand a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss is not material to the issue of whether the theory may be properly pursued in a Rule 23, Ala. R. Civ. P., class action.

“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23[, Fed.R.Civ.P.,] are met.
“ ‘The determination whether there is a proper class does not depend on the existence of a cause of action. A suit may be a proper class action, conforming to Rule 23, and still be dismissed for failure to state a cause of action.’
“Indeed, there is absolutely no support in the history of Rule 23 or legal precedent for turning a motion under Rule 23 into a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment by allowing the district judge to evaluate the possible merit of the plaintiffs claims at this stage of the proceedings. Failure to state a cause of action is entirely distinct from failure to state a class action.”

Miller v. Mackey Int’l, Inc., 452 F.2d 424, 427-28 (5th Cir.1971) (quoting Kahan v. Rosenstiel, 424 F.2d 161, 169 (3rd Cir. 1970); internal citations and footnote omitted). Accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Weathers v. Peters Realty Corp., 499 F.2d 1197, 1202 (6th Cir.1974); Cruz v. Hauck, 627 F.2d 710, 715 (5th Cir.1980). Indeed, if this theory does not withstand an eventual Rule 12(b)(6) challenge, the certification of these classes in this case will benefit the defendants by disposing of all such claims of all the class members in one single proceeding. Such efficiency and economy are among the cardinal purposes of Rule 23. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), and American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).

      . On April 12, 2000, Voyager Group, Inc., Voyager Life and Health Insurance Company, Voyager Property and Casualty Insurance Company, and Voyager Insurance Companies filed a motion for a summary judgment arguing that they had never issued the credit-life and credit-property insurance in question. That motion was still pending at the time this case was submitted on briefs to this Court.

      . At the time McGraw testified, he was senior vice president of Voyager.

      . The record and the briefs refer to this entity simply as "Lorch.”

      . The third amended complaint dropped Kathy Ann Ellen as a class representative.

      . The parties stipulated that the partial settlement agreement should not be interpreted as evidence in support of, or in opposition to, certification of the remaining claims.

      . This discussion is found in the “Commonality” analysis of the trial court’s order. The trial court's order contains a section entitled "Rule 23(b)(3) Predominance and Superiority Requirements.” This section evaluates the customers' claims with regard to Rule 23(b)(3)(A), (B), (C), and (D), and refers the reader to the “Commonality” section for a discussion of "the substantive law, the elements and the proof of each of Plaintiffs' claims.”

      . We do not address the issue whether the failure to disclose such information was material or illegal; for purposes of determining the validity of the certification of a class, we accept the customers' allegations as true.

      . Nothing in the complaint suggests that the Legislature intended a private right of action for violations of the portion of the Alabama Mini-Code at issue (§ 5-19~20(a), Ala.Code 1975, as that section read at the time pertinent to this action) or Reg. 28, State Department of Insurance Regulations (repealed effective November 1, 1999); the claim is grounded solely in the common-law remedy for unjust enrichment. Whether a different result would obtain when a private right of action is available is not before us.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Tom RAMPEY et al. v. NOVARTIS CONSUMER HEALTH, INC.
    1011684.
    Supreme Court of Alabama.
    May 30, 2003.

      Michael Straus of Straus & Boies, LLP, Birmingham; and Kenneth F. Ingram, Jr., and Jeremy Knowles of Kenneth Ingram, Jr. & Associates, Alexander City, for appellants.
    Luther M. Dorr, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; John Tom Radney of Radney, Radney & Brown, Alexander City; Earl B. Austin of Baker Botts, L.L.P., Dallas, Texas; and Patrick O. Keel of Baker Botts, L.L.P., Austin, Texas, for appellee.
   HARWOOD, Justice.

On September 17,1997, Tommy Rampey sued Novartis Consumer Health, Inc. (“Novartis”), manufacturer of “Ex-Lax,” an over-the-counter laxative. As amended, Rampe/s complaint, seeking injunctive relief and damages for economic loss, but not damages for personal, injury, presented claims of breach of the implied warranties of merchantability and fitness for a particular purpose. The action was filed as a class action pursuant to Rule 23, AIa.R.Civ. P., on behalf of a class of persons “who. purchased ‘Ex-Lax,’ which was manufactured, distributed, and sold by Defendant Novartis, over the four-year period preceding June 1997,[] and who currently possess one or more partially or completely unused packages of ‘Ex-Lax’ that he previously purchased.” Rampey alleged that Ex-Lax sold during that time frame contained the active ingredient phenolphthalein (“PPH”), a chemical that studies have shown causes precancerous and cancerous conditions in laboratory animals.

After various filings by the parties, Novartis filed a motion for a summary judgment, which the trial court granted by an order filed with the circuit clerk on March 22, 2002. On that same date, but unaware that a summary judgment had been entered, Rampey executed “Plaintiffs Notice of Filing ‘Second Amended Class Action Complaint,’ ” seeking to assert an unjust-enrichment claim. That notice and the proposed amended complaint attached to it were, not filed with the circuit clerk until March 25, 2002. On April 15, having received a copy of the summary judgment, Rampey filed “Plaintiffs Motion to Vacate Judgment and Points and Authorities in Support,” requesting that the summary judgment be vacated and that he be allowed to amend his complaint. The trial court entered an order denying the motion on April 22; that order stated, in relevant part:

“On the 22nd day of March, 2002 the court entered an [order] granting sum- . mary judgment to defendants. Counsel for plaintiffs has now filed a motion to vacate that judgment and for leave to file an amended complaint. The court has considered that motion and is of the opinion that all post judgment motions are due to be and hereby are denied.”

Rampey then filed this appeal.

On appeal, Rampey argues that the summary judgment must be reversed because, he says, (1) consumers are the proper parties to bring actions against manufacturers of over-the-counter pharmaceuticals for breach of the implied warranties of merchantability and fitness for a particular purpose where the active ingredient has been deemed “unsuitable”; (2) the filing of the action constituted sufficient notice to Novartis under Ala.Code 1975, § 7-2-607; and (3) the trial court erred in denying Rampey’s motion that he be allowed to file an amended complaint adding an unjust-enrichment claim.

Our review of a summary judgment is de novo.

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

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

The record reveals that before August 1997, the active ingredient in Ex-Lax was PPH, which had been approved by the Food and Drug Administration (“the FDA”) for many years. On August 29, 1997, the FDA announced a proposal to “restrict” the use of PPH as a result of tests on laboratory animals that showed that PPH was a possible carcinogen. Subsequently, by a final rule issued on January 29, 1999, the FDA classified PPH as a drug “not ‘generally recognized as safe and effective’ ” (as explained by the affidavit of Russell Jones, director of regulatory affairs for Novartis). After the proposal was announced, Novartis withdrew the PPH formulation of Ex-Lax on August 29, 1997, and replaced it with a reformulated version using a senna-based active ingredient. Rampey asserts that in 1995, before the FDA restricted the use of PPH and before Novartis changed the formulation of Ex-Lax, Novartis was aware of studies conducted by the National Toxicology Laboratory of the National Institutes of Health (“the NTNH”) that “questioned the safety of the chemical [PPH].” Novartis stated in its “Response to Plaintiffs First Set of Requests for Admissions” that it was aware of such studies, but it asserted that the studies were inconclusive as to the health risks associated with use of Ex-Lax as directed.

Barry Kesten, the senior brand manager for Ex-Lax from September 1995 until March 1999, stated in his affidavit that throughout Rampey’s time frame of June 1993 to June 1997, Novartis did not sell Ex-Lax directly to consumers, but rather sold it “exclusively” to distributors and wholesalers, who in turn sold it to retailers, from whom consumers purchased-it. Kesten also stated that during that same period, and, in fact, for the past 25 years, Ex-Lax was sold with an express money-back guarantee printed on the packaging. The guarantee provided on the packaging of the Ex-Lax formulation that contained PPH stated: “The Ex-Lax Guarantee: When taken at bedtime, Ex-Lax is guaranteed to work gently, [and] effectively by 8 AM or your money back. Return products to Sandoz,[] attention Consumer Affairs for full refund.” Kesten further stated that it is Novartis’s policy to provide a refund to any consumer who is dissatisfied with the product and returns an unused portion of the product. or a proof-of-purchase. In accordance with that policy, Novartis will refund the purchase price, any sales tax, and the postage associated with the return. In addition, as a part of Novartis’s withdrawal in 1997 of the Ex-Lax product containing PPH, it offered consumers, pursuant to the same return-of-product or proof-of-purchase requirement stated above, refunds for Ex-Lax containing PPH. That refund policy, which applied until April 1, 2000, provided a refund of the purchase price, any sales tax, and postage, and also provided a coupon good for the' reformulated Ex-Lax. Kesten attested that, in an attempt to advertise this'refund policy as it pertained to the PPH formulation of Ex-Lax, Novartis provided a toll-free 1-800 number for consumers and pharmacists to telephone for information regarding the PPH formulation of Ex-Lax, the reformulated version, and the refund. This 1-800 number was publicized in a press release issued by Novartis on August 29, 1997, announcing its withdrawal of the old formulation and its reformulation of Ex-Lax. Novartis also sent an “Action Line” telegram to pharmacists in the United States announcing the withdrawal of the old formulation and the reformulation, and reiterating the refund offer and the 1-800 number. Notices were also sent to distributors and wholesalers, and advertisements regarding the reformulation were publicized through a series of television advertisements and promotional displays.

At some point in time before he filed suit in September 1997, Rampey had purchased three packages of the PPH formulation of Ex-Lax. Copies of the labels of those three packages are' contained in the record. With respect to those packages, Rampey testified by deposition as follows:

“Q: And I’m wondering if you gave any consideration, Mr. Rampey, to any kind of monetary relief or anything else that you could have done without filing a lawsuit?
“Did you think about trying to do something without filing a lawsuit?
“A: No I didn’t.
“Q: Do you know whether it was months or years before — let me back up.
“It was before the lawsuit that you purchased these correct?
“A: Yes.
“Q: Do you know whether that was months or years before the lawsuit?
“A: No, I don’t.
“Q: Do you know how much you paid for them?
“A: The amount on the tag plus tax.
“Q: And the amounts are $1.95 in the case of two and $1.99 in the case of one? “A: Yes.
“Q: Do you know where you purchased them?
“A: No, I don’t.
“Q: You did not purchase them directly from Novartis, did you?
“A: No, I didn’t.
“Q: You would have purchased either at a grocery store or a drugstore or someplace like that?
“A: Sure.
“Q: Some retail type of store; is that right?
“A: Sure.
“Q: You never contacted [Novartis], the manufacturer of Ex-Lax, to ask for a refund, did you?
“A: No, I didn’t.
“Q: Were you aware from the publicity that you had heard about and any other information you had available to you that [Novartis] had such a refund offer?
“A: No, I wasn’t.
“Q: Is there anything that you’re asking for in terms of any refund that’s different from what you understand this language on the package [the guarantee] to be offering?
“A: No.
“Q: ... [E]ver have any complaint or problem with the Ex-Lax working the way it was supposed to?
“A: No, I didn’t.
“Q: It did the job you needed it to do?
“A: Yes.
“Q: Was there ever a time when you took Ex-Lax diming this period and it did not work for you?
“A: No.
“Q: Did you ever take these three boxes, Exhibits 1, 2, and 3, did you ever take them back to the store where you bought them and request a refund?
“A: No, I didn’t.
“Q: Or request a replacement product?
“A: No, I didn’t.
“Q: Did it ever occur to you to do that?
“A: No, it didn’t.”

Rampey states in his brief to this Court that Novartis impliedly warranted that the Ex-Lax formulation containing PPH.was “fit for the purposes for which it would be used by consumers — i.e., that Ex-Lax was safe and effective.” However, as noted, Rampey seeks only damages for economic loss, as opposed to damages for personal injury. Specifically, paragraph 35 of his amended complaint, states, in relevant part, “plaintiff and the class are entitled to recover amounts necessary to replace the ‘Ex-Lax’ containing [PPH] currently in their possession; ... and such other damages as are proper (in an amount less than $75,000.00, and excluding punitive damages) as determined at trial.” Also, in his “Response to [Novartis’s] Second Set of Interrogatories,” Rampey responded as follows to questions regarding the type of damages he seeks:

“Interrogatory 17. Do you seek to recover damages for any personal injury, including any medical illness or condition or other adverse health effect, that you contend you suffered as a result of your ‘Ex-Lax?’ If so, please provide the following information:
“Response: [Rampey] objects to this request to the extent that it is unduly burdensome and is not reasonably limited in time and scope. Subject to the foregoing objection, [Rampey] responds no.
“Interrogatory 18. Do you contend that other potential members of the putative class are entitled to recover damages for any personal injury, including any medical illness or condition or other adverse health effect, suffered as a result of your use of ‘Ex-Lax?’ If so, please identify all such persons (including name, address, and telephone number) and describe any and all such personal injuries in detail.
“Response: [Rampey] objects to this request to the extent that it requires a legal conclusion. Subject to the foregoing objection, [Rampey] responds no.
“Interrogatory 19. Do you seek to recover damages for any economic loss or injury that you contend you suffered as a result of your purchase or use of ‘Ex-Lax?’ If so, please describe any such economic loss or injury in detail.
“Response: See Response to Interrogatory 12.”

Interrogatory 12 and Rampey’s response are as follows:

“Interrogatory 12. In paragraph 9 of your Complaint, you state, ‘[Rampey] and the Plaintiff Class seek relief in the form of actual damages.’ With regard to this statement, please identify each element of actual damages for which you seek recovery in the action, including the amount sought for each such element and a description of how the amount was calculated. [To the extent this interrogatory may be viewed as calling for an opinion or legal conclusion, Novartis agrees your counsel may answer this interrogatory on your behalf. See General Instruction 1 above].
“Response: [Rampey] objects to this interrogatory, to the extent that it is repetitive and requires a legal opinion or legal contention that it is protected by the work product privilege. Novartis’s agreement to allow counsel to answer this question is insufficient to waive the privilege held by [Rampey].
“Subject to the foregoing objection, [Rampey] has not completed an analysis of damages, but will supplement this ■response in accordance with his obligations under the Alabama Rules of Civil Procedure.”

The trial court’s summary-judgment order states, in pertinent part:

“[Rampey’s] complaint alleges that [Novartis] produced the product Ex-Lax, that [Rampey] purchased Ex-Lax, that the formulation of Ex-Lax contained a chemical which has been found to be carcinogenic, [and] that Novartis has reformulated Ex-Lax and has removed the chemical. [Rampey] claims that Novartis has breached an implied warranty and that as a result he and other members of the putative class have suffered economic damages. There is no claim for physical injury.
“[Novartis’s] motion for summary judgment alleges two separate grounds. The first is that no notice was given to [Novartis] as required by the [Uniform Commercial Code] prior to the filing of this action. [Rampey] concedes that no separate notice was given but that the filing of this action constituted notice. The case of Hobbs v. General Motors Corporation, 134 F.Supp.2d 1277 (M.D.Ala.2001), [d]eals with notice requirements. Hobbs concerns an express warranty but the analysis would seem to apply in this case. In Hobbs the District Court held:
“ ‘Accordingly, this court concludes that the mere filing of a lawsuit in this case did not constitute notice of breach under Alabama law. 134 F.Supp.2d at 1284.’
“Consequently, it would appear that [Novartis] would be entitled to prevail.
“The second ground raised by [Novartis] concerns privity. [Rampey] purchased Ex-Lax from a retail establishment. [Novartis] has filed an affidavit which states that Novartis does not sell Ex-Lax to individuals. Sales are made to distributors who then market the product to retailers. There was no evidence to the contrary. It would therefore seem that [Novartis] would be entitled to summary judgment based on lack of privity.”

Rampey argues that a consumer is the proper party to bring an action for breach of the implied warranties of merchantability and fitness for a particular purpose under Aabama’s Uniform Commercial Code (“UCC”) against manufacturers of over-the-counter drugs where the active ingredient used in such drugs is “unsuitable.” Aa.Code 1975, § 7-2-314, the implied-warranty-of-merchantability section of Aabama’s UCC, states, as it pertains to the issue presently before us:

“(1) Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....
“(2) Goods to be merchantable must be at least such as:
“(a) Pass without objection in the trade under the contract description; and
“(b) In the case of fungible goods, are of fair average quality within the description; and
“(c) Ae fit for the ordinary purposes for which such goods are used; and
“(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
“(e) Ae adequately contained, packaged, and labeled as the agreement may require; and
“(f) Conform to the promises or affirmations of fact made on the container or label if any.”

The section of the UCC on the implied warranty of fitness for a particular purpose, Ala.Code 1975, § 7-2-315, states, in relevant part: . .

“Where the seller at the time of contracting has reason to know any particular purpose' for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under Section 7-2-316 an implied warranty that the goods shall be fit for such purpose.”

The law in this State is that a claim- for breach of an implied warranty is not available against a manufacturer who was not involved in the transaction pursuant to which the complaining party purchased the product. For example, in Wellcraft Marine v. Zarzour, 577 So.2d 414 (Ala.1990), Zarzour, the purchaser of an allegedly defective boat, sued Wellcraft Marine, the boat manufacturer; Economy Marine, Inc., the seller of the boat; and Cincinnati Insurance Company, the insurer of the boat, asserting claims that included breach of implied warranties. The trial court directed a verdict in favor of Wellcraft as' to Zarzour’s breach-of-implied-warranty claims; Zarzour appealed the directed verdict and various other rulings by the trial court. On appeal, addressing Zarzour’s argument as to his breach-of-warranty claims, this Court stated:

“Zarzour argues that there was privity between himself and Wellcraft and that because of this privity the trial court erred in directing a verdict for Wellcraft on his implied warranty claims. Wellcraft, and not Economy, provided Zarzour with a written warranty covering the boat. While Alabama’s version of U.C.C. § 2-318 has abolished the privity requirements in actions involving injuries to natural persons, the privity requirements still remain[] in cases of strictly economic injury.’ State Farm Fire & Cas. Co. v. J.B. Plastics, Inc., 505 So.2d 1223, 1227 (Ala.1987). There is no right of action on an implied warranty theory against a manufacturer for property damage without privity of contract; Section 7-2-318, Ala.Code 1975, provides, ‘A seller’s warranty, whether express or implied, extends to any natural person....’ ... ‘Seller’ is defined as ‘a person who sells or contracts to sell' goods,’ § 7-2-103(l)(d). Further, § 7-2-314 (the implied warranty of merchantability section) and § 7-2-315 (the implied warranty of fitness for a particular purpose section) both apply to the ‘seller.’ In this case, Economy was the seller, not Wellcraft.”

577 So.2d at 419 (emphasis omitted). Accordingly, this Court upheld the directed verdict for Wellcraft on Zarzour’s implied-warranty claims. Id.

In Ex parte. General Motors Corp., 769 So.2d 903 (Ala.1999), Tucker purchased an automobile manufactured by General Motors Corporation (“GM”) from Jim Bishop Chevrolet-GEO-Buick-Olds, Inc. (“Bishop”), an automobile dealer. Shortly after Tucker bought the vehicle, it began stalling while he was driving it. Tucker repeatedly took the car back to Bishop for repairs to correct the stalling problem. On one particular occasion, while Tucker was driving the vehicle, it began to overheat, and Tucker had to pull over on to the side of the road. After the vehicle’s engine cooled, it would not restart. Tucker contacted a wrecker service, but because it was a holiday weekend he was told .that the vehicle could not be towed until the following day. Tucker left the car on the side of the road overnight and during the night it was vandalized. Bishop refused to repair the vehicle, and on the advice of his attorney, Tucker stopped making payments on his automobile loan, and the vehicle was repossessed. Tucker sued GM and Bishop, alleging breach of express warranties, and Bishop, alleging breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. The trial court entered a summary judgment for the defendants, and Tucker appealed. On appeal, the Court of Civil Appeals affirmed the trial court’s judgment as to Tucker’s breach-of-implied-warranties claim against GM and his claim alleging breach of the implied warranty of fitness for a particular purpose against Bishop. It reversed the trial court’s judgment as to Tucker’s claim that Bishop breached the implied warranty of merchantability and that Bishop and GM had breached their express warranties. Tucker v. General Motors Corp., 769 So.2d 895 (Ala.Civ.App.1998). This Court granted the defendants’ petitions for cer-tiorari review, and, in the resulting opinion, agreed with the Court of Civil Appeals that had Tucker alleged breach-of-implied-warranty claims against GM, a summary judgment would have been proper. We explained:

“In its opinion in this case, the Court of Civil Appeals held that under Alabama’s version of the Uniform Commercial Code ..., implied warranties are applicable only to sellers. [Tucker v. General Motors Corp.,] 769 So.2d [895] at 901-02 [(Ala.Civ.App.1998)]. We agree; that holding is an accurate statement of the law. See Rhodes v. General Motors Corp., 621 So.2d 945, 947 (Ala. 1993). If Tucker had alleged a breach of implied warranty as to GM, a summary judgment would be proper as to any such claim.”

769 So.2d at 910.

In Rhodes v. General Motors Corp., 621 So.2d 945 (Ala.1993), cited in the passage from Ex parte General Motors quoted above, the Rhodeses, purchasers of an allegedly defective automobile, sued GM, the manufacturer of the vehicle; Chrysler Credit Corporation (“Chrysler”), the financier of the vehicle; and David Jones Chevrolet, the seller of the vehicle, asserting claims including breach of the implied warranty of merchantability. The action was filed after the Rhodeses had brought the vehicle back to Jones Chevrolet for a third repair and Chrysler had repossessed the vehicle because the Rhodeses had failed to make the scheduled payments. The trial court entered a summary judgment in favor of the defendants, and the Rhodeses appealed. Analyzing the UCC and relying on our earlier decision in Wellcraft Marine, supra, this Court stated:

“We note that each section in the Uniform Commercial Code dealing with implied warranties places obligations on the seller of goods. In this case, [GM] was the manufacturer of the automobile, and Jones was the seller. § 7-2-103(1)(d). In Wellcraft Marine v. Zarzour, 577 So.2d 414 (Ala.1990), we stated: ‘There is no right of action on an implied warranty theory against a manufacturer for property damage without privity of contract.’ 577 So.2d at 419. (Emphasis in Wellcraft). Similarly, we conclude that, without privity of contract, there is no right of action against a manufacturer for direct economic loss.”

621 So.2d at 947. (Footnote omitted.) The Rhodes Court also stated:

“The Rhodeses contend that in extending a written warranty, [GM] created privity of contract with the Rhodeses. When presented with a similar. contention in Wellcmft, we held: ‘Regardless of any express warranties that a manufacturer may wish to give with a product, by their very language the commercial code’s implied warranty sections may apply to the seller of the product.’ Id. at 414. (Emphasis added [in Rhodes ].)”

Id. See also Bryant v. Southem Energy Homes, Inc., 682 So.2d 3, 5 (Ala.1996) (“Under Alabama law, the implied warranty of fitness for a particular purpose does not apply to Southern Energy, who was the manufacturer, not the seller, of the mobile home.”)'; Johnson v. Anderson Ford, Inc., 686 So.2d 224, 227-28 (Ala.1996) (“Section 7-2-314 and § 7-2-315 both apply to the ‘seller’ of a product.”).

As noted in the material quoted earlier from Wellcraft, 577 So.2d at 419, Ala.Code 1975, § 7-2-318 abolished privity requirements only in actions involving' personal injury to natural persons. Specifically, § 7-2-318 provides:

“A seller’s warranty, whether express or implied, extends to any natural person if it is reasonable to expect that such a person may use, consume or be affected by the goods, and who is injured in person by the breach of the warranty. A seller may not exclude or limit the operation of this section.”

(Emphasis added.) See also Johnson v. Anderson Ford, Inc., 686 So.2d at 228 (“The privity of contract that arises out of the seller/buyer relationship was absent here. That absence, in cases of strictly economic harm ..., is fatal to an implied warranty claim under either § 7-2-314 or § 7-2-315.”); Kidd v. Kilpatrick Chevrolet, Inc., 613 So.2d 336, 338 (Ala.1993) (“Alabama has abolished privity requirements in actions involving personal injuries, but actions where the claim alleges purely economic injury, such as this case, privity is still required.”); State Farm Fire & Cas. Co. v. J.B. Plastics, Inc., 505 So.2d 1223, 1227 (Ala.1987) (“While Alabama’s version of U.C.C. § 2-318 has abolished privity requirements in actions involving injuries to natural persons, the privity requirements still remain[ ] in cases of strictly economic injury.”); Chandler v. Hunter, 340 So.2d 818, 822 (Ala.Civ.App.1976) (“there is no right of action on an implied warranty of merchantability of fitness for use where the injury sustained was economic unless there is privity of contract”).

In the instant case, it is undisputed that Novartis manufactured the Ex-Lax purchased by Rampey. It is also undisputed that Rampey did not purchase the Ex-Lax directly from Novartis; rather, he purchased it from a retailer such as a drugstore or grocery store. Additionally, the damages sought by Rampey, as evidenced by his amended complaint and his responses to interrogatories 17 and 18 of Novartis’s second set of interrogatories, and without any intervening amendment or supplementation by the time of the entry of the summary judgment, are limited to damages for an economic injury. Rampey forthrightly acknowledges in his reply brief that “economic injuries [are] what is at issue here.” Accordingly, in light of the foregoing legal authority, we conclude that because Novartis is the manufacturer and not the seller of Ex-Lax, no privity exists between it and Rampey; therefore, Rampey cannot complain against Novartis for a breach of implied warranties.

Rampey, however, relying on Cheminova America Corp. v. Corker, 779 So.2d 1175, 1180 (Ala.2000), argues that because the Ex-Lax sold by Novartis containing PPH was “unsafe,” it violated an implied warranty of merchantability. We conclude that Cheminova is distinguishable from this case. In Cheminova, Cheminova International was the manufacturer of “Skin Cap," an over-the-counter medication that contained the ingredient zinc pyrithione. Cheminova America (“Cheminova”) was the distributor of Skin Cap. Cheminova and Acuderm, Inc., entered into an agreement pursuant to which Acuderm became a “nonexclusive” distributor of Skin Cap. Acuderm marketed the product for use as a psoriasis treatment. Before entering into the distribution agreement, Acuderm was aware of reports that Skin Cap contained a steroid, but it received assurances from Cheminova that Skin Cap was safe and that the product contained no steroids. Acuderm’s literature on Skin Cap specifically stated that it was steroid-free. Aeu-derm sold Skin Cap directly to consumers and pharmacies. It sold approximately 22,000 units of Skin Cap pursuant to its distribution agreement with Cheminova. Thereafter, Acuderm received a warning statement from the FDA stating that Skin Cap contained a “potent corticosteroid and should not be used without a physician’s supervision.” 779 So.2d at 1177. Acu-derm agreed to recall all of its Skin Cap products.

Corker, the plaintiff, was first told by her dermatologist about Skin Cap a few months before the FDA sent the warning statement to Acuderm. Unaware of the controversy concerning Skin Cap, Corker purchased the product from Nixon Drugs, a retail establishment, at a point after Cheminova and Acuderm already knew of the reports that Skin Cap contained steroids. The label on the can of Skin Cap that described the ingredients of the product made no mention of steroids. Corker stated that even after the date of the recall, neither Cheminova nor Acuderm informed her that the product was dangerous. It was not until several months later that Corker learned from another dermatologist that Skin Cap had been “marketed illegally.” The dermatologist informed Corker that some of the problems she was having with her skin were a result of using Skin Cap. Corker then sued, personally and on behalf of a putative class, Chemino-va International, Cheminova, Acuderm, and Nixon Drugs, asserting claims that included a claim of “breach of warranty.” The trial court certified the action as a class action; Cheminova and Acuderm appealed the certification order. Addressing the “commonality” requirement of Rule 23(a), Ala.R.Civ.P., this Court stated: “A sale of a product that is not fit for use as described violated the implied warranty of merchantability — that the product is fit for its intended purpose — an implied warranty that under the U.C.C. accompanies each sale by a merchant. § 7-2-314, Ala.Code 1975.” 779 So.2d at 1180. This Court went on to state:

“The defendants contend that the variations in the degree of privity the separate class members had with the defendants, variations caused by the application of the laws of the several states, are so great that this action may not proceed as a class action. However, we believe any problems caused by those variations would be manageable. Those who are in the direct-purchaser subclass are in privity with Acuderm.”

Id. (Emphasis added.) Unlike the situation in Cheminova, the seller of the Ex-Lax purchased by Rampey is not a defendant in this action. In Cheminova, Corker sued the manufacturer of Skin Cap as well as the sellers of Skin Cap — Acuderm and Nixon — both of which sold the product directly to consumers, thereby, as to those direct sales, satisfying the privity requirement. Cheminova does not support Ram-pey’s argument that he has a valid claim against the manufacturer of Ex-Lax, Novartis, for breach of the implied warranty of merchantability or breach of the implied warranty of fitness for a particular purpose. There simply was no privity of contract between Rampey and Novartis in the transaction whereby the Ex-Lax produced by Novartis ultimately made its way to Rampey.

Rampey also asserts, relying on Dennis Joslin Co., L.L.C. v. Tate, 779 So.2d 217 (Ala.2000), that the “un-cross-examined” affidavit of Barry Kesten does not present substantial evidence that Ram-pey is not in privity with Novartis, sufficient to entitle it to a judgment as a matter of law. Rule 56(e), Ala.R.Civ.P., states, in pertinent part:

“(e) Form of Affidavits; Further Testimony; Defense Required.... When a motion for summary judgment is made and supported as provided by this rule, an adverse party may not rest upon mere allegations or denials of the adverse party’s pleading, bid the adverse party’s response, by affidavits or as oth-enuise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him.”

(Emphasis added.) In the instant case, Novartis provided Kesten’s affidavit as evi-dentiary support for its assertion in its summary-judgment motion that Rampey lacked the requisite privity with Novartis to maintain a claim of breach of implied warranties. Rampey did not submit evidence in opposition to Kesten’s attestations and, as noted, he testified that he has purchased the product only at the retail level. “When no evidence is offered to contradict that presented by the movant, then the court has no alternative but to consider the evidence uncontroverted; and summary judgment, if warranted by such evidence, may be entered against the non-moving party.” Butler v. Michigan Mutual Ins. Co., 402 So.2d 949, 953 (Ala.1981). Consequently, because Rampey attempted no contradiction of Kesten’s factual assertions, the trial court properly entered a summary judgment for Novartis.

Rampey also contends that because Novartis issued the refund it offered for a consumer’s purchase of the formulation of Ex-Lax containing PPH directly to its consumers, consumers are the intended beneficiaries of the contractual implied warranty of merchantability. Specifically, Rampey argues that because Novartis agreed to refund the consumer’s money when it reformulated Ex-Lax, rather than having the refund issued by a retailer or a distributor, “[tjhere are sufficient facts in the record to create a triable issue of fact as to whether Novartis’s duty embodied in the implied warranty of merchantability runs to Plaintiffs.” Rampey further contends that recognition that the implied warranty of merchantability runs from manufacturers of prepackaged over-the-counter drugs to consumers would be consistent with Alabama’s causal-relationship doctrine because it is the manufacturer, not the retailer or distributor, that creates the defective condition.

However, without addressing the possible merit of those arguments, our review of the record reveals that Rampey did not assert either of those arguments to the trial court. This Court cannot consider arguments raised for the first time on appeal; rather, our review is limited to the evidence and the arguments considered by the trial court. Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914 (Ala.2002). See also Andrews v. Merritt Oil Co., Inc., 612 So.2d 409 (Ala.1992). Therefore, we will not consider Rampey’s “third-party-beneficiary” or causal-relationship argument for purposes of a reversal of the judgment. Accordingly, we conclude that Rampey’s claims of breach of implied warranties do not extend to Novartis, and the trial court did not err as a matter of law by entering a summary judgment in favor of Novartis. Because of our conclusion on this issue, we need not address the issue regarding the sufficiency of notice to Novartis.

The final issue that must be addressed, however, is whether the trial court erred by denying Rampey leave to amend his complaint a second time in order to assert an unjust-enrichment claim. Rule 15(a), Ala.R.Civ.P., which provides when a pleading may be amended, states, in relevant part:

“(a) Amendments. Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such an amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.”

Under Alabama law, whether to allow amendments to pleadings is within the discretion of the trial court. For example, in Deputy Sheriffs Law Enforcement Association of Mobile County v. Mobile County, 590 So.2d 239 (1991), deputy sheriffs in Mobile challenged the denial of a pay increase for deputies by the Mobile County Commission (“the Commission”). They argued that pursuant to Local Act No. 82-444 (“the Act”), which provided that all deputy sheriffs in Mobile County would receive any salary increase granted to any class of county employees, they were entitled to the same 20% salary increase received by engineers who worked for Mobile County. The Commission and the Personnel Board of Mobile County (“the Board”) denied the deputy sheriffs’ request, and the deputies sued. On cross-motions for a summary judgment, the trial court held that the Act was unconstitutional and entered a summary judgment in favor of the Commission and the Board. Thereafter, the deputies sought to amend their complaint. The Commission and the Board moved to strike the proposed amendment, and the trial court granted their motion. Upholding the denial of the deputies’ leave to amend their complaint, this Court stated:

“The Deputies contend that the trial court should have allowed them to amend their complaint, after entry of summary judgment, to add a new cause of action. They only cite Rule 15(a), [Ala.]R.Civ.P., as support for this claim. Specifically, they point to the language in Rule 15(a) that states ‘such amendments shall be freely allowed when justice so requires.’
“The Deputies totally ignore cases such as Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So.2d 68 (Ala.1989), which found no abuse of discretion when a trial court disallowed an amendment after a summary judgment motion had been filed and scheduled for hearing. Applying the holding of Government Street Lumber Co., we cannot logically hold that the trial court abused its discretion by disallowing an amendment after the summary judgment had been entered.”

590 So.2d at 243. See also Kilgore v. Alabama By-Products Corp., 581 So.2d 872, 874 (Ala.Civ.App.1991).

In this case, Rampey filed his original complaint on September 17, 1997. On August 21, 2000, Rampey filed his first amended complaint, and on March 25, 2002, three days after the summary judgment was entered against him, he filed notice of the second amended complaint. Four and one-half years had passed before Rampey proffered the second amended complaint, and he did not proffer it until after the trial court’s March 22, 2002, order entering a summary judgment in favor of Novartis.

Rampey argues that because his unjust-enrichment claim arises from the “same nucleus of operative facts” as the claims asserted in his original and his “Amended And Restated Complaint,” it adds no additional facts that must be litigated. Thus, he argues, pursuant to Rule 15(c)(2) Ala.R.Civ.P., the amendment would relate back to the claims presented in the original complaint, and Novartis would not be prejudiced if the amendment were allowed. In support of this contention, Rampey relies on this Court’s decision and rationale in McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977), in which we held that the trial court abused its discretion by refusing to allow the defendant to amend his answer because of the close proximity of the trial given that the defendant had not completed its last deposition until three weeks before the amendment was offered and the plaintiffs were unable to show any prejudice that would result from the amendment’s being allowed. As already noted, the procedural posture of this case at the time Rampey tendered his third version of his complaint was entirely different, being postjudgment. Accordingly, in light of this Court’s decision in Deputy Sheriffs Law Enforcement Association of Mobile County, supra, we conclude that the trial court did not exceed its discretion by denying Rampey’s motion for leave to amend his complaint.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Nowhere in the record or the parties' briefs is the reason for selecting June 1997 as the "cut-off” date explained.

      . The record shows that senna is derived from the senna plant.

      . On January 29, 1999, the FDA issued a “determination” classifying PPH as a “new drug.” Such classification disallows any person or entity from marketing a product in the United States that contains PPH without first submitting an application to the FDA that demonstrates that the compound is “generally recognized as safe and effective.”

      . In his brief to this Court, Rampey states that the NTNH “examined” the safety of PPH "during the relevant time period,” which he defines as "the four years preceding the institution of this suit,” and that PPH was found to have the potential for producing cancers. Rampey cites to page 316 of the record as support for his statement, but at that page there appears a press release, dated May 15, 2000, issued by the "National Institute of Environmental Health Sciences.” Request 13 in “Plaintiff's First Set of Requests for Admissions to [Novartis]” asks that Novartis admit that in 1995 it became aware of studies conducted by the "National Toxicology Board.” We infer that Rampey is referring to the NTNH, although he uses a different title. For purposes of simplification, we refer to the entity as the NTNH.

      . Rampey also states that the other studies reached the same conclusions as those reached in the NTNH study. However, all of the results from those studies were released after Novartis had withdrawn the formulation of Ex-Lax using PPH as the active ingredient.

      . Nothing in the record directly evidences the 1995 studies to which Rampey refers. Rather, Rampey's cite to the record, as stated in note 4, supra, refers to the May 15, 2000, press release issued by the "National Institute of Environmental Health Sciences,” which states: "Today, the Department of Health and Human Services released the Report on Carcinogens 9th edition,” prepared by the "National Toxicology Program.” That Report is described in the press release as having identified substances that are "known” or are "reasonably anticipated” to cause cancer. The press release identifies PPH as a chemical designated in the report as carcinogenic. Nonetheless, Novartis raises no issue about the studies Rampey relies on, i.e., 1995 studies or the studies underlying the 2000 report.

      . Sandoz Pharmaceuticals, Inc. ("Sandoz”), is the predecessor company of Novartis. San-doz acquired the Ex-Lax brand in 1981.

      . Each label also contained the mailing address for Sandoz.

      . In addition to Kesten's affidavit, these statements are supported by the affidavit of Nancy Casper, the director of consumer and professional affairs for Novartis.

      . We note, as stated in a footnote in the Ex parte General Motors opinion, that pursuant to the procedural history provided in the opinion, Tucker did not assert a breach-of-the-implied-warranlies claim against GM. 769 So.2d at 905 n. 1. Nevertheless, the Court of Civil Appeals addressed that issue.

      . The opinion in Cheminova does not provide a better description of what Skin Cap is, but we infer, based upon our reading of the trial court's order quoted in the opinion, that it is a topical solution that is applied directly to a user's skin.

      . The Cheminova opinion does not identify Acuderm; however, because of the "nonexclusive” nature of the distributorship agreement entered into between it and Cheminova, we infer that Acuderm was also a distributor of pharmaceuticals.