author: CRAWLEY, Judge.

text:
    Wayne E. TERRELL v. R & A MANUFACTURING PARTNERS, LTD.
    2001032.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Judge.

Wayne E. Terrell purchased a dump trailer from R & A Manufacturing Partners, Ltd. (“RAM”), a trailer manufacturer located in Houston, Texas. Terrell ordered the dump trailer from Mike Mussel-man, a RAM salesman located in Atlanta, Georgia. Musselman had previously worked as a salesman for Travis Body and Trailer, Inc. (“Travis”), and Terrell had previously ordered a Travis dump trailer from Musselman when he was employed by Travis. Terrell and Musselman discussed the options Terrell wanted on his RAM trailer; Terrell stated that he wanted the trailer to be identical to the one he had purchased through Musselman from Travis. Musselman prepared a specification sheet listing, from memory, the options that Terrell had requested on the Travis trailer; however, Musselman had forgotten, and did not recall Terrell’s reminding him, that the dump trailer Terrell had ordered from Travis had dual controls.

The specifications for the trailer RAM manufactured for Terrell did not include dual controls. The specifications did provide that the trailer be a 2000 model. Although Musselman recalled sending a copy of the specification sheet to Terrell, Terrell testified that he had never seen a specification sheet.

The dump trailer was manufactured in mid-June 1999. It was manufactured as a 1999 model. The vehicle identification number (“VIN”), the serial plate, and the certificate of origin reflected that the trailer was a 1999 model. According to the testimony of the corporate representatives, Allen Pate and Ronald West, trailers manufactured during the latter half of June could be manufactured as either 1999 or 2000 models, depending on the wish of the customer. The body style of a 1999 model trailer does not differ in any respect from the body style of a 2000 model trailer.

When Terrell received the trailer on June 26, he immediately noticed that it did not contain the dual controls he had on his Travis trailer. In addition, as he was inspecting and testing the trailer, a bracket used to connect the trailer to a truck broke. Terrell communicated these problems to Musselman, who informed Terrell that he should have the bracket repaired at RAM’s expense and that he would check on the possibility of having the dual controls installed.

Terrell had the bracket repaired at a cost of $175. He testified that he sent a copy of the bill to RAM. RAM contends that it reimbursed Terrell, while Terrell insists that RAM never reimbursed him.

When Terrell’s wife attempted to purchase a tag for the trailer, she was told that she would not be issued a tag because “the paperwork” reflected that the trailer was a 2000 model while the VIN reflected that it was 1999 model. Again, Terrell communicated the problem to Musselman. Musselman informed Ronald West, who attempted to solve the problem by reissuing the certificate of origin and issuing a new serial plate. The new certificate of origin continued to reflect the same VIN, which indicated that the trailer was a 1999 model, while the new serial plate reflected a different VIN, which also indicated that the trailer was a 1999 model, but which had been corrected to reflect the actual length of the trailer.

Terrell noticed other problems with the trailer. His driver reported that the side lights sometimes failed to work, so Terrell examined the truck, found a loose connector, and plugged the connector in firmly. Since that time, the lights have worked properly. The driver also reported that the antilock-braking system (“ABS”) fault light would come on at times, indicating that the system was not working properly. Terrell did not have the braking system examined. Finally, Terrell noticed what was in his opinion unusual wear on the tires of the trailer. He surmised that the trailer was misaligned, and he had the trailer realigned, which corrected the problem. He did not inform RAM that he had the trailer realigned, nor did he send the bill for the realignment to RAM for payment.

Terrell communicated most of the problems with the trailer to Musselman, who attempted to make suitable arrangements to have the trailer inspected or repaired. Although the specifications for the trailer had not included dual controls, Musselman wanted to make Terrell happy with his purchase. He requested that RAM, at no cost to Terrell, provide the dual controls. Musselman then arranged for the dual controls to be installed at Alabama Trailer Sales in Birmingham; however, this particular shop could not perform the work, and Terrell had to take the trailer to Trailer Service, located in Montgomery, to have the controls installed. Even though the dual controls were installed, Terrell insists that they do not work properly. Despite Musselman’s request, Terrell refused to return the trailer to the shop that installed the controls, saying that the mechanics had told him they had done all they could do to the trailer.

Terrell sued RAM, alleging that it had breached express and implied warranties, that it had negligently and/or wantonly manufactured the trailer, and that it had committed fraud. RAM counterclaimed for attorney fees, pursuant to the sales contract. RAM then moved for a summary judgment, which the trial court granted; because RAM’s counterclaim remained pending, the trial court made the summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P. Terrell appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard the trial court applied. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P.; see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992) (footnote omitted). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038. “[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); see Ala.Code 1975, § 12-21-12(d). See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999); West, 547 So.2d at 871; and Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for further discussion of the application of the summary-judgment standard.

I. Breach of Express Warranties

Terrell argues that RAM breached its express warranties that the trailer would be a 2000 model, that it would have dual controls, and that it would be free from defects in material and workmanship. RAM did not submit a brief on appeal, but argued in its motion for summary judgment that it had complied with its warranty whenever possible by repairing defects or by providing replacement parts. RAM also argued that Terrell, by refusing to return the trailer to the factory or to an authorized repair facility, had failed to comply with the terms of the warranty. To determine whether the summary judgment was properly entered, we will examine each alleged breach separately.

RAM’s warranty provides:

“(1) RAM Trailers warrants each new trailer or body manufactured to be free from defects in material or workmanship, provided that the equipment warranted hereunder is operated by the purchaser in accordance with generally approved practices, with loads not exceeding the manufacturer’s rated capacity and with loads that are not abrasive or corrosive in nature.
“(2) Any parts of the equipment found to be defective within the warranty period shall be repaired or replaced (at RAM’s option), on the pro-rata basis set forth below, at RAM’s factory location or authorized service facility, provided, however, the purchaser notifies RAM or an authorized distributor as soon as any defect becomes apparent. The period of the warranty is for five (5) years from the date of delivery of the equipment....
“(4) The purchaser agrees to return the defective equipment or parts to RAM’s factory location or authorized service facility, freight prepaid, within 10 days after the defective condition is discovered.
“(6) The sole liability of RAM and the exclusive remedy of the purchaser arising out of the manufacture, sale, or use of the equipment provided hereunder shall be limited to the cost or repair or replacement of defective parts as herein specified. Further, RAM’s maximum liability hereunder arising from any cause whatsoever, including but not limited to, breach of contract or tort (including negligence), shall not exceed the contract price of the equipment furnished hereunder. Further RAM shall not be responsible for work done, equipment or parts furnished or parts or repairs made by others unless the work is specifically ordered by RAM for the fulfillment of this warranty. In no event shall RAM be liable for removing defective parts or for reinstalling said parts when repaired or replaced by anyone other than RAM or an authorized service facility or for any costs incurred with such removal or reinstallation.
“(7) RAM AND THE PURCHASER AGREE THAT, IN CONSIDERATION OF THE ABOVE EXPRESSED WARRANTY ALL OTHER WARRANTIES OTHER THAN TITLE, EITHER EXPRESSED OR IMPLIED, WHETHER ARISING UNDER LAW OR EQUITY INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM THIS CONTRACT. THE FOREGOING WARRANTY IS MADE SOLELY TO THE FIRST PURCHASER/USER FROM RAM TRAILERS.
“(8) CONSEQUENTIAL DAMAGES: Notwithstanding any other provisions of this agreement, in no event shall RAM Trailers be liable, whether arising under contract, tort (including negligence) or otherwise, for loss of anticipated profits, damage to the load or contents of the equipment, transportation expenses due to repairs, nonoperation or increased expenses of operation, cost of purchased or replacement equipment, claims of customers, cost of money, loss of user capital or revenue, or for any special, incidental, or consequential loss or damage of any nature arising at any time or from any cause whatsoever.”

RAM, in most instances, specifically relies on Terrell’s failure to comply with paragraph 4, which required him either to return the trailer to the factory or to take the trailer to an authorized service facility for repair.

In its motion for a summary judgment, RAM also argued that the warranty disclaimers in paragraph 7 entitled it to a summary judgment on several of Terrell’s express-warranty claims and on his implied-warranty claims. Such disclaimers are permitted by Ala.Code 1975, § 7-2-316, which requires disclaimers to be conspicuous in order to be valid.

Terrell argues that the disclaimers in RAM’s warranty are ineffective because the warranty was not delivered to him until approximately four days after delivery of the trailer. In Tiger Motor Co. v. McMurtry, 284 Ala. 283, 290, 224 So.2d 638, 644 (1969), the court determined that a similar disclaimer did not serve to defeat an express warranty because the warranty disclaimer was not called to the attention of the buyer. Similarly, the United States Court of Appeals for the Eleventh Circuit, after considering McMurtry and § 7-2-316, has determined that, under Alabama law, post-sale disclaimers are not effective because such disclaimers did not form the basis of the bargain. See Bowdoin v. Showell Growers, Inc., 817 F.2d 1543, 1545-46 (11th Cir.1987). As the federal court explained, even properly conspicuous warranty disclaimers are not effective if they are delivered to the consumer post-sale because “[b]y definition, a post-sale disclaimer is not conspicuous in the full sense of that term because the reasonable person against whom it is intended to operate could not have noticed it before the consummation of the transaction.” Bowdoin, 817 F.2d at 1547 (footnote omitted). We conclude, based on McMurtry and Bowdoin, that the disclaimers contained in RAM’s warranty are ineffective because the warranty disclaimers were not made a basis of the bargain.

RAM also argues that it is entitled to a summary judgment on Terrell’s express- and implied-warranty claims because paragraph 8 of the warranty limits damages for breach of warranty to only repair or replacement of parts. Such a limitation of remedies is permitted by Ala. Code 1975, § 7-2-719. That section reads:

“(1) Subject to the provisions of subsections (2) and (3) of this section and of Section 7-2-718 on liquidation and limitation of damages:
“(a) The agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
“(b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
“(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.
“(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
“(4) Nothing in this section or in Section 7-2-718 shall be construed so as to limit the seller’s liability for damages for injury to the person in the case of consumer goods.”

Although § 7-2-719 permits limitation of remedies by a seller, we conclude that the limitation of remedies contained in paragraph 8 is ineffective because it, like the warranty disclaimers, was not made a basis of the bargain. See McMurtry, 284 Ala. at 290, 224 So.2d at 644; Bowdoin, 817 F.2d at 1545-46; accord Duffin v. Idaho Crop Improvement Ass’n, 126 Idaho 1002, 1012, 895 P.2d 1195, 1205 (1995) (“It is fundamental that to be effective, disclaimers of warranties and remedy limitations must be part of the bargain struck by the parties.”); see also Adams v. American Cyanamid Co., 1 Neb.Ct.App. 337, 354, 498 N.W.2d 577, 588 (1992) (holding that “in order for a limitation of remedy to be effective, it must ... be conspicuous and a buyer must be afforded a reasonable opportunity to read it”); Antz v. GAF Materials Corp., 719 A.2d 758, 761-62 (Pa.Super.1998) (holding that limitations of remedies provisions were unconscionable because the buyer was not provided the provisions at the time of purchase and delivery); Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1093 (Wyo.1989) (“[A] limitation of liability statement, like a disclaimer of an implied warranty, must be conspicuous in order to become a basis for the bargain.”).

A. Dual Controls

Terrell complains that RAM warranted that the trailer would have dual controls and that it breached that express warranty. The evidence indicates that Musselman never included dual controls in the specifications for Terrell’s trailer. However, RAM attempted to remedy Terrell’s dissatisfaction by sending him the controls and instructing him to have them installed at RAM’s expense. Although the first installer Terrell took the trailer to, Alabama Trailer Sales in Birmingham, determined that it could not install the controls, the controls were installed by Trailer Service in Montgomery. After the controls were installed, Terrell complained that they did not work properly. Specifically, Terrell explained in his deposition that, after the controls were installed, the “tailgate won’t open with the air bags.” However, Terrell refused to return the trailer to Trailer Service, stating that the employees at Trailer Service had said they had done all they could do to the trailer.

RAM argues that it was not given an opportunity to remedy any problems allegedly caused by the installation of the controls because Terrell refused to return the trailer to Trailer Services, another authorized repair facility, or to the factory. We agree. Terrell's refusal to return the trailer to an authorized repair facility prevented RAM from remedying any defect caused by the installation of the dual controls. Although a seller is not to be given an unlimited time to remedy defects in a product, see Tiger Motor Co. v. McMurtry, 284 Ala. 283, 290, 224 So.2d 638, 644 (1969), the problem with the tailgate arose after the installation of the dual controls, and RAM was never given an opportunity to diagnose, much less to repair, that problem. Under the terms of the warranty, RAM should have been given an opportunity to repair. The summary judgment on the breaeh-of-warranty claim, insofar as it relates to defects with, or caused by, the installation of the dual controls, is affirmed.

B. Defects in Material and Workmanship

Terrell argues that RAM warranted that the trailer would be free from defects in material and workmanship and that it breached that express warranty. Specifically, Terrell complains of defects in (1) the bracket lift, (2) the side lights, (3) the alignment, and (4) the ABS. We will discuss each defect separately.

1. Bracket Lift

Terrell complains that RAM breached its express warranty because the bracket lift broke on the day of delivery and because RAM failed to reimburse Terrell for the expenses he incurred in having the bracket repaired. RAM contends that Terrell failed to return the bracket lift either to the factory or to an authorized service facility for repair as required under paragraph 4 of the warranty and also contends that it in fact reimbursed Terrell for the expenses he incurred.

Although Terrell testified that he telephoned the welder who repaired the bracket lift, Musselman testified that he telephoned the welder and instructed Terrell to have the bracket repaired at RAM’s expense. If indeed Musselman authorized the repair by the welder as he testified, it would appear that Terrell complied with the warranty and used an “authorized service facility.” In any event, a question of fact concerning whether Terrell used an authorized service facility exists, precluding summary judgment on that basis. The conflicting testimony concerning whether RAM actually reimbursed Terrell prevents a summary judgment on that particular basis as well. The summary judgment on the express-warranty claim, insofar as it pertains to the repair of the bracket lift, is reversed.

2. Side Lights

Terrell argues that the side lights on the trailer were defective. He testified that the lights appeared to be working upon delivery, but that after about the first or second week his driver reported that the lights worked only some of the time. Terrell inspected the connectors under the trailer and found a loose connector. Once he firmly plugged in the connector, the lights worked properly. He has reported no other problems with the lights since that time.

RAM argues that because the lights work, the lights are no longer defective and the warranty cannot have been breached. We agree. The loose connector, repaired easily and at no cost by Terrell, poses no continuing problem. The summary judgment on Terrell’s express-warranty claim, insofar as it pertains to the specific complaints concerning the side lights, is affirmed.

S. Antilock-Braking System

Terrell also complains that the ABS is defective. He testified that about one week after delivery his driver reported that the ABS fault light would occasionally come on, indicating a problem with the ABS, and that the “tires would sometimes slide if you got on them a little bit hard.” He testified that he reported the problem to Musselman about two or three weeks later. He said he was not told where to take the trailer to have the ABS examined. He has not undertaken to have them examined at his own expense.

RAM contends that it requested that Terrell take the trailer to Gulf City Body and Trailer in Mobile for inspection of the ABS and other problems. Terrell recalls being told to take the trailer to Gulf City “much later” in reference to the several problems he reported over a period of time. He refused to take the trailer to Gulf City, citing as a reason RAM’s refusal to agree to pay to replace tires he said were excessively worn because of the alleged alignment problem. RAM argues that Terrell cannot prove that there is a “problem” with the ABS and that Terrell failed to comply with paragraph 4 of the warranty because he refused to take the trailer to Gulf City for inspection.

After Terrell complained about the brakes, he says he was not told where to take the trailer until “much later.” Because the record is not clear as to the dates of many of the communications between Musselman and Terrell concerning where and when to have inspection and/or repair work done, we conclude that there are disputed issues of material fact concerning whether RAM breached its warranty by failing to repair the problem within a reasonable time. See Ag-Chem Equip. Co. v. Limestone Farmers Coop., Inc., 567 So.2d 250, 252 (Ala.1990). Accordingly, we must reverse the summary judgment as to the express-warranty claim insofar as it pertains to the ABS, as well.

4. Alignment

Terrell contends that the trailer was out of alignment and that that misalignment breached the express warranty that the trailer be free from defects in workmanship. According to Terrell, the alignment problem manifested itself “maybe 15,000 miles down the road,” which was approximately five to seven weeks after delivery. He noticed excessive wear on the outside of the tires, which he said indicated misalignment. Terrell admitted that he was instructed to take the trailer to Gulf City Body & Trailer in Mobile for inspection and repair, but that he refused to do so because RAM would not agree to replace the tires on the trailer. Terrell did, however, have the trailer realigned at Southern Frame & Alignment; he never submitted a bill to RAM for that alignment.

RAM never conceded that the trailer was misaligned at the time of delivery; in fact, RAM contended that the alignment problem was likely a later-occurring problem resulting from normal use. RAM also argued that Terrell failed to comply with paragraph 4 of the warranty because he refused to take the trailer to Gulf City as requested. We agree with RAM that Terrell’s failure to take the trailer to Gulf City, an authorized service facility, resulted in his breaching the requirements of the warranty. Accordingly, the summary judgment, insofar as it relates to the express-warranty claim based on the alignment of the trailer, is affirmed.

C. Model Year

Terrell argues that RAM breached an express warranty that the trailer would be a 2000 model. An affirmation that an item is of a particular model year has been determined to be an express warranty. Kilborn v. Henderson, 37 Ala.App. 173, 65 So.2d 533 (1953). Musselman admits that Terrell requested a 2000 model trailer and that he informed Terrell that the trailer would be a 2000 model. The trailer, as delivered, bore indications in the VIN, on the serial plate, and on the certificate of origin that it was a 1999 model. RAM attempted to remedy the problem by reissuing a serial plate and a certificate of origin; however, the VIN on the new serial plate still indicated that the trailer was a 1999 model and, by having Terrell remove the old serial plate and affix the new plate, RAM induced Terrell to possibly commit a crime. See Ala.Code 1975, § 32-8-86(a) (making it a Class A misdemeanor to remove or falsify the identification number of a vehicle); Ala.Code 1975, § 13A-8-22 (making it a Class C felony to obscure the identity of a vehicle). Pate admitted that the problem with the VIN and the model year had not yet been corrected in September 2000. He and West also admitted that the difference in model year, although not reflected in the price of the trailer when sold new, would affect the resale value of the trailer.

RAM discovered the appropriate method for changing the VIN number on the trailer after it contacted the Alabama Department of Revenue. It first informed Terrell of the appropriate method in December 2000 at West’s deposition; it also filed an affidavit outlining the procedure with its motion for summary judgment. The question remains whether RAM’s attempt to remedy the problem properly arrives too late to have seasonably cured the defect in the trailer. As mentioned earlier, a seller does not have an unlimited time in which to correct defects in its products. See McMurtry, 284 Ala. at 290, 224 So.2d at 644. Terrell reported the problem with the model year within days of delivery of the trailer on June 26, 1999. We conclude that RAM’s December 2000 attempt to advise Terrell of the proper remedy comes too late. Accordingly, the summary judgment on the express-warranty claim, insofar as it relates to the model year, is reversed.

. II. Implied Warranty of Merchantability

Terrell argues that RAM also breached the implied warranty of mer-ehantability because, he argues, the trailer, as sold, would not pass without objection in the trade and was not fit for the ordinary purpose for which it was intended to be used. RAM argued that the implied warranties were disclaimed by conspicuous language in its written warranty. However, as was discussed previously, the disclaimers were ineffective because Terrell received the warranty several days after delivery of the trailer. See McMurtry, 284 Ala. at 290, 224 So.2d at 644.

The implied warranty of merchantability is found in Ala.Code 1975, § 7-2-314, which reads, in pertinent part:

“(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. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
“(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) Are 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) Are 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.”

“Tn an action for breach of an implied warranty, the plaintiff must prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach.’ ” Barrington Corp. v. Patrick Lumber Co., 447 So.2d 785, 787 (Ala.Civ.App.1984) (quoting Storey v. Day Heating & Air Conditioning Co., 56 Ala.App. 81, 83, 319 So.2d 279, 280 (1975)). Terrell argues that he presented substantial evidence indicating that the trailer would not pass without objection in the trade and that it was not fit for the ordinary purposes for which it was intended to be used. Thus, he contends, the summary judgment on his implied-warranty claim was improper.

Terrell’s argument that the trailer, because of the discrepancy in the model year, would not pass without objection in the trade is convincing. Pate testified that he would likely be dissatisfied with a 1999 model trailer if he had ordered a 2000 model trailer, and both he and West acknowledged that the resale value of the trailer would be affected by the model year. Terrell also produced evidence indicating that the discrepancy between the VIN on the undercarriage of the trailer and the VIN on the serial plate poses potential problems in resale and may result in criminal sanctions if the fact was discovered by authorities. We conclude that whether the trailer would pass without objection in the trade, and thus whether the implied warranty of merchantability was breached, remains a question for a fact-finder to determine and therefore that the summary judgment on that issue should be reversed.

As discussed above, Terrell had several complaints concerning the trailer. He had a problem with the brackets, the side lights, the ABS, and the alignment. He has also had problems related to the installation of the dual controls he requested. He contends that these “defects” prevent the trailer from being merchantable because some pose a safety hazard. However, we are of the opinion that the fact that the trailer, while not in perfect condition, has been used in Terrell’s business since its delivery (except for those dates on which it was being repaired or serviced) precludes Terrell’s argument that the trailer was not fit to haul loads as a trailer is intended to do. Accordingly, as to that aspect of his implied-warranty claim, we affirm the summary judgment.

III. Negligent and/or Wanton Manufacture

Terrell argues that the trial court erred by entering a summary judgment in favor of RAM on his negligent-and/or-wanton-manufacture claim. RAM successfully argued in the trial court that Terrell could not allege negligent and/or wanton manufacture because the only damage he suffered was damage to the property itself. See Ex parte Grand Manor, 778 So.2d 173, 178 (Ala.2000). According to Terrell, however, he has suffered emotional distress and, he says, under AALAR, Ltd. v. Francis, 716 So.2d 1141 (Ala.1998), he is entitled to recover from RAM.

According to our supreme court, emotional distress is not recognized as a compensable injury in negligence actions unless the distress results from actual physical injury or from the fear for one’s own physical safety. Francis, 716 So.2d at 1148. In Francis, the plaintiffs, F.N. Francis and C.J. Francis, a mother and her son, rented an automobile that, unbeknownst to them, had been registered as a stolen vehicle with the National Crime Information Center (“NCIC”). Francis, 716 So.2d at 1143 C.J. was driving the automobile when he caught the attention of a local police officer. Id. After the police officer learned that the automobile had been reported stolen, he and other officers went to the plaintiffs’ home to question C.J. Id. When C.J. went to the automobile to retrieve the rental papers from the glove compartment, one of the officers, unsure of C.J.’s intentions, momentarily pulled his weapon. Id.

The Francis court was faced with the question whether C.J. could recover on his negligence claim against the rental company when he had suffered only emotional distress without accompanying physical injury. Id. at 1144. After examining the pertinent caselaw, the court decided that, because C.J. had been placed in fear of his own physical safety when the police officer drew his weapon and because such a result, i.e., being arrested at gunpoint, could have been reasonably foreseen by the rental company because of its failure to have the recovered rental automobile removed from the NCIC computer file, C.J. could recover for his emotional distress despite the lack of an accompanying physical injury. Id. at 1147. However, F.N. was not entitled to recover for emotional distress because she “was never at risk of suffering physical injury.” Id.

Although Terrell argues that, like C.J. in Francis, he could have been subjected to arrest at gunpoint because of the discrepancies in the VINs on the undercarriage of the trailer and the serial plate, he was not actually arrested and, in fact, did not testify that he feared for his physical safety when he was questioned about emotional distress. His situation is more akin to F.N.’s in that, like F.N., he may have been a “foreseeable plaintiff with a legally protected interest and, thus, was owed a duty by [RAM] to exercise due care.” Id. at 1148. Like F.N., however, the fact that he may have been a foreseeable plaintiff does not entitle him to recovery of damages for emotional distress from RAM. See Id. Accordingly, the summary judgment, insofar as it relates to Terrell’s negligent-and/or-wanton-manufacture claim, is affirmed.

TV. Fraud

Terrell also argues that the summary judgment in favor of RAM on his fraud claim should be reversed. Terrell bases his fraud claim on the representation by Musselman that the trailer Terrell ordered would be a 2000 model, on RAM’s failure to equip the trailer with dual controls, and on RAM’s failure to disclose that the trailer would not live up to its warranty to be free from manufacturing defects. In its motion for a summary judgment, RAM argued that Terrell’s fraud claim actually stated a promissory fraud claim because the alleged misrepresentations concerned an act to be performed in the future. We agree.

To prove that RAM, through Musselman, committed promissory fraud, Terrell would have to establish (1) that Musselman made a false representation concerning RAM’s intent to perform or abstain from performing in the future, (2) that Musselman intended for RAM not to do the act promised at the time of the alleged misrepresentation, (3) that Mussel-man intended to deceive him, (4) that he justifiably relied on this alleged misrepresentation, and (5) that he was damaged as a proximate result of that reliance. See Howard v. Wolff Broadcasting Corp., 611 So.2d 307 (Ala.1992).

Terrell admitted in his deposition that he thought that Musselman intended to sell him a 2000 trailer. Although it is evident from the testimony of Pate and West that they thought they were selling a 1999 trailer, it is equally clear from their testimony that they believed that the 1999 trailer was what was ordered. The evidence also tends to show that Musselman mistakenly failed to request the dual controls and that, upon being informed of the mistake, he immediately arranged to have the controls installed. This evidence is not substantial evidence indicating RAM’s intent to deceive Terrell or its intent not to perform as it had promised. Terrell’s argument that RAM intended not to manufacture a trailer that was free from defects as stated in it warranty is likewise unsupported by substantial evidence. The summary judgment, insofar as it relates to the promissory-fraud claim, is affirmed.

V. Conclusion

The summary judgment, insofar as it relates to Terrell’s express-warranty claims based upon the defects in the bracket lift, the defects in the ABS, and the discrepancy in the model year, and insofar as it relates to his implied-warranty claim based upon the discrepancy in the model year, is reversed. In all other respects, the summary judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

      . Allen Pate, one of RAM's corporate representatives, testified that RAM stood behind Musselman’s actions. No. issue of agency is raised by the parties.

      . We are uncertain exactly what "paperwork" Mrs. Terrell had that indicated that the trailer was a 2000 model, but we surmise that the loan documents, which did contain that information, were presented to the vehicle-registration office.

      . The copy in the record of the second serial plate is illegible. However, upon request, the circuit clerk compared the two exhibits and reported that they reflect identical numbers. In Ronald West's deposition, he, when viewing a copy of the new serial plate and a copy of the VIN number embossed on the undercarriage of the trailer, stated that the numbers differ in that the seventh digit on the undercarriage VIN is a 6 and the seventh digit on the serial-plate VIN is a 5.

      . Terrell argues on appeal that the certification on the trailer's serial plate, which reads: "THIS VEHICLE CONFORMS TO ALL APPLICABLE U.S. FEDERAL MOTOR VEHICLE SAFETY STANDARDS IN EFFECT ON THE DATE OF MANUFACTURE SHOWN ABOVE,” creates an express warranty that the trailer does conform to federal laws governing the manufacture of trailers and that that warranty was breached because RAM admittedly failed to comply with several of those federal standards. He also argues that the fact that RAM's failure to comply with those federal standards constitutes a breach of the implied warranty of merchantability. However, after reviewing the complaint, we have determined that Terrell did not raise these issues in the trial court. Accordingly, we will not address either argument on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).

      . The creation of express warranties are governed by Ala.Code 1975, § 7-2-313, which reads, in pertinent part, as follows:
      "(1) Express warranties by the seller are created as follows:
      “(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
      "(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”

      . Arguably, Terrell could be protected from criminal prosecution under Ala.Code 1975, § 13A-8-22, because his intent in replacing the serial plate was not to obscure the previous VIN. However, Ala.Code 1975, § 32-8-86(a), which makes it a Class A misdemeanor to remove or falsify and identification number, does not appear to require any fraudulent intent.

      . See note 6, supra.


source: Caselaw Access Project

author: LONG, Presiding Judge.

license: Public Domain

text:
    STATE of Alabama v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    CR-98-0565.
    Court of Criminal Appeals of Alabama.
    May 26, 2000.
    Rehearing Denied Aug. 18, 2000.

      Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for appellant.
    Arthur J. Madden III, Mobile, for appel-lee.
    William M. Bowen, Jr., Birmingham, for amicus curiae Business Council of Alabama.
    Michael A. Bownes, general counsel, and John J. Davis, asst, counsel, Department of Insurance, for amicus curiae Alabama Department of Insurance.
   LONG, Presiding Judge.

The State of Alabama appeals from the trial court’s order dismissing an indictment against St. Paul Fire and Marine Insurance Company (hereinafter “St. Paul”), a Minnesota-based corporation, for perjury in the first degree, a violation of § 13A-10-101(a), Ala.Code 1975.

The indictment against St. Paul arose out of a medical-malpractice suit relating to a 1993 incident in an operating room, as a result of which a patient, Mary McGa-hagin, suffered brain damage caused by bradycardia (a slowed heartrate, producing an inadequate bloodfiow to the brain) during surgery. McGahagin sued the hospital where the surgery was performed, the surgeon who performed the surgery, an anesthesiology group, one of the anesthesiologists, and Wayne Zimlich, a nurse anesthetist. During the malpractice trial, Zimlich testified that McGahagin had suffered bradycardia for approximately three to five minutes during the surgery. The hospital and the surgeon were ultimately dismissed from the malpractice suit, but the anesthesiology group, the anesthesiologist, and Zimlich' — all insured by St. Paul — were found liable and were ordered to pay damages of $22.5 million. Subsequently, Zimlich sued St. Paul and three of its employees for failure to settle the malpractice suit. During the trial of that case, Zimlich testified that, at the direction of his lawyer, the anesthesiologist, and a St. Paul employee, he had lied at the malpractice trial about the duration of McGa-hagin’s bradycardia. Zimlich maintained that the bradycardia had actually lasted over 10 minutes, not 3 to 5 minutes as he had testified at the malpractice trial. Based on Zimlich’s testimony, the State indicted both Zimlich and St. Paul for perjury in the first degree.

St. Paul filed a motion to dismiss the indictment against it for failure to charge an offense, arguing that under Alabama law a corporation could not be charged with the offense of perjury. After a hearing on the issue, the trial court granted St. Paul’s motion and dismissed the indictment against it.

On appeal, the State contends that the trial court erred in dismissing the indictment against St. Paul because, it says, the Legislature intended to provide for corporate criminal liability by defining a “person” in § 13A-l-2(6), Ala.Code 1975, as “a public or private corporation.” Section 13A-1-2 provides, in pertinent part:

“Unless different meanings are expressly specified in subsequent provisions of this title, the following terms have the following meanings:
“(6) Person. A human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.”

(Emphasis added.) In the commentary to this section, we find the following:

“ ‘Person’ as defined in subdivision (6) covers a ‘human being’ and includes male and female of whatever age. The definition also includes all legal persons, or entities. The precise kind of ‘person’ required depends upon the particular offense charged, and the language of the section defining it.”

(Emphasis added.)

Section 13A-10-101(a), Ala.Code 1975, provides that “[a] person commits the crime of perjury in the first degree when in any official proceeding he swears falsely and his false statement is material to the proceeding in which it is made.” (Emphasis added.) The State contends that § 13A-l-2(6) and § 13A-10-101(a), when construed together, clearly indicate a legislative intent to impose criminal liability for perjury on corporations. We disagree.

In construing the language in §§ 13A-1-2(6) and 13A-10-101(a), Ala.Code 1975, we are mindful of the following principles:

“ ‘Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used.... ’ United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952). Moreover, ‘criminal statutes should not be “extended by construction.” ’ Ex parte Evers, 434 So.2d at 817 (quoting Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)). Section 13A-1-6 provides in part: ‘All provisions of [the Criminal Code] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law.... ’
“Because the meaning of statutory language depends on context, a statute is to be read as a whole. King v. St. Vincent’s Hospital, 502 U.S. 215, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991). Subsections of a statute are in pari materia and ‘should be construed together to ascertain the meaning and intent of each.’ McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378, 1382 (Ala.1986).”

Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993). See also Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993)(“No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused.”).

Although § 13A-l-2(6), Ala.Code 1975, defines the term “person,” as used in the Criminal Code, to include a corporation, the statute expressly limits that definition to those situations in which it is “appropriate” to include a corporation in the definition of a “person.” Upon reviewing the Criminal Code as a whole, we are convinced that the Legislature has found it “appropriate” to impose criminal liability on corporations only for certain crimes enumerated in the Code: i.e., those crimes in which the Legislature has specifically provided for corporate liability. Perjury is not one of those.

Initially, we note that there is no provision in the Criminal Code providing for general corporate criminal liability. In fact, the commentary to § 13A-2-26, Ala. Code 1975 (which imposes criminal liability on an individual acting in the name of or on behalf of a corporation), specifically states:

“A proposed section on ‘liability for corporations’ was not enacted by the legislature. Thus, corporate criminal liability will primarily depend upon statutes and law outside this Criminal Code.”

Numerous provisions outside the Criminal Code impose criminal liability on corporations. See, e.g., Title 2 (Agriculture), Title 8 (Commercial Law and Consumer Protection), Title 9 (Conservation and Natural Resources), Title 11 (Counties and Municipal Corporations), Title 20 (Food, Drugs, and Cosmetics), Title 22 (Health, Mental Health, and Environmental Control), Title 23 (Highways, Roads, Bridges, and Ferries), Title 25 (Industrial Relations and Labor), Title 27 (Insurance), Title 28 (Intoxicating Liquor, Malt Beverages, and Wine), Title 33 (Navigation and Watercourses), Title 34 (Professions and Businesses), Title 37 (Public Utilities and Public Transportation), and Title 40 (Revenue and Taxation).

More importantly, within the Criminal Code itself, the Legislature specifically and unambiguously imposes criminal liability on corporations for certain crimes. For example, the Legislature expressly includes corporations in the Anti-Obscenity Enforcement Act. See § 13A-12-200.1 et seq., Ala.Code 1975. In § 13A-12-200.1(7), the Legislature defines a “person” for purposes of the Anti-Obscenity Act as “[a]ny individual, and, except where inappropriate, any partnership, firm, association, corporation, or other legal entity.” In § 13A-8-23, Ala.Code 1975, which regulates acts making gas, electricity, or water available unlawfully, the Legislature specifically defines a “person” to include “a corporation, firm, company, or association.” In § 13A-9-70(3), Ala.Code 1975, which defines various “charitable fraud” offenses, see §§ 13A-9-71 through 13A-9-76, Ala.Code 1975, the Legislature defines a “person” as “[a]ny individual, organization, group, association, partnership, corporation, trust, or any combination of them.” In § 13A-ll-70(3), Ala.Code 1975, the Legislature’s definition of a “person,” for purposes of offenses relating to pistols, see §§ 13A-11-71 through 13A-11-84, Ala. Code 1975, includes “any firm, partnership, association, or corporation.” Finally, in § 13A-14-3, Ala.Code 1975 (limiting the duration of marathon dance contests, [walk-a-thons,] or similar endurance contests), the Legislature specifically includes within the purview of that statute “any person, firm, association or corporation.”

The absence of a general provision extending the definition of a “person” in § 13A-l-2(6), Ala.Code 1975, to all offenses in the Criminal Code, combined with the presence of several specific provisions throughout the Code expressly including corporations in the definition of a “person” for certain individual crimes, leads us to conclude that the term “where appropriate” in § 13A-l-2(6), Ala.Code 1975, limits the imposition of corporate criminal liability solely to those subsections of the Criminal Code in which the Legislature has expressly provided for corporate criminal liability, such as those listed above. The Legislature did not expressly state that corporations could be held liable for the various perjury offenses; therefore, there is no corporate criminal liability for perjury. The trial court did not err in dismissing the indictment against St. Paul.

The judgment of the trial court is affirmed.

AFFIRMED.

MCMILLAN, COBB, BASCHAB, and FRY, JJ., concur.


author: JOHNSTONE, Justice.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY).
    1992198.
    Supreme Court of Alabama.
    May 24, 2002.
    Bill Pryor, atty. gen., and Rosa H. Davis, chief asst. atty. gen., for petitioner.
    Arthur J. Madden III of Madden & Soto, Mobile, for respondent.
    William M. Bowen, Jr., of White, Dunn & Booker, Birmingham, for amicus curiae Business Council of Alabama.
   JOHNSTONE, Justice.

The opinion of the Court of Criminal Appeals, 835 So.2d 230 (Ala.Crim.App.2000), is correct. See § 13A-1-4, Ala.Code 1975 (“No act or omission is a crime unless made so by this title or by other applicable statute or lawful ordinance.”).

AFFIRMED.

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


author: FRY, Judge. PER CURIAM.

text:
    Antonio BONNER v. STATE.
    CR-99-0615.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2000.
    Opinion on Return to Remand on Grant of Rehearing Sept. 28, 2001.

      Blanchard L. McLeod, Jr., Selma, for appellant.
    Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   FRY, Judge.

The appellant, Antonio Bonner, was convicted of four counts of the unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. For each conviction, he was sentenced as a habitual felony offender to life imprisonment, with the sentences to run concurrently. In an unpublished memorandum issued today, we affirmed Bonner’s convictions. See Bonner v. State (No. CR-99-0615), 814 So.2d 1013 (Ala.Crim.App.2000) (table). In this opinion we address only Bonner’s sentencing.

Our review of the record indicates that the trial court did not impose the fines required by the Alabama Demand Reduction Assessment Act. The Alabama Demand Reduction Assessment Act, § 13A-12-281, Ala.Code 1975, mandates an additional fine of $1,000 for first-time offenders and $2,000 for second-time and subsequent offenders for each conviction under § 13A-12-211, Ala.Code 1975.

Although the trial court’s sentencing order indicates that the trial court assessed a $1,000 fine, the record does not indicate whether that fine was assessed pursuant to the Alabama Demand Reduction Assessment Act or for some other purpose. Therefore, we remand this case for the trial court to clarify whether the $1,000 fine was assessed pursuant to the Alabama Demand Reduction Assessment Act or was assessed for some other purpose.

Furthermore, the record indicates that the trial court failed to impose the appropriate additional fines in accordance with the Alabama Demand Reduction Assessment Act. As discussed above, because the offense charged in Count I was Bonner’s first drug offense, the trial court should have assessed a $1,000 fine in accordance with the Alabama Demand Reduction Assessment Act. Additionally, because the offenses charged in for Counts II, III, and IV were for subsequent drug offenses, Bonner should have been fined $1,000 for each additional conviction. See May v. State, 729 So.2d 362, 363 n. 2 (Ala.Crim.App.1998) (noting that, because the State did not prove any prior offenses, $1,000 for each count is the appropriate fine).

Furthermore, the record indicates that the trial court did not apply the enhancement provisions of § 13A-12-250 and § 13A-12-270, Ala.Code 1975, when it sentenced Bonner.

In Gamble v. State, 699 So.2d 978 (Ala.Crim.App.1997), this Court stated:

“Section 13A-12-250 provides a penalty of 5 years’ incarceration in addition to any other penalties when the unlawful sale occurred within 3 miles of a school. Section 13A-12-270 provides a penalty of 5 years’ incarceration in addition to any other penalties when the unlawful sale occurred within 3 miles of a public housing project. Application of both sections is mandatory. Cunny v. State, 629 So.2d 693 (Ala.Cr.App.1993).”

699 So.2d at 980. See Wild v. State, 761 So.2d 261 (Ala.Crim.App.1999) (“testimony from an officer who is familiar with the location of the sale is sufficient to establish that the sale occurred within three miles of a school”).

Testimony indicated that three of the transactions occurred within or in front of a house on 1508 Mabry Street in Selma. During sentencing, Eddie Cook, a probation officer, testified that he was familiar with the neighborhood where the transactions occurred, and that 1508 Mabry Street is located within three miles of both an elementary school and a housing project. The State’s evidence indicates that the first, third, and fourth transactions occurred within three miles of a school and housing project. Thus, the trial court should have enhanced Bonner’s sentences for the first, third, and fourth transactions by an additional 10 years’ imprisonment.

Therefore, we remand this case so that the trial court may impose the appropriate fines mandated by the Demand Reduction Assessment Act, see May v. State, supra, Smith v. State, 715 So.2d 904 (Ala.Crim.App.1997); Palmer v. State, 745 So.2d 920 (Ala.Crim.App.1999); Laster v. State, 747 So.2d 359 (Ala.Crim.App.1999). On remand, the trial court shall apply the enhancement provisions of § 13A-12-250 and § 13A-12-270 to each of Bonner’s convictions for distribution of a controlled substance. See Gamble v. State, supra. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days of the release of this opinion.

AFFIRMED BY MEMORANDUM IN PART AS TO CONVICTIONS; REMANDED WITH DIRECTIONS IN PART AS TO SENTENCING

LONG, P.J., and McMILLAN, COBB, and BASCHAB, JJ., concur.

On Application For Rehearing

PER CURIAM.

The unpublished memorandum released on December 15, 2000, is hereby withdrawn, and the following opinion is substituted therefor.

The appellant, Antonio Bonner, was convicted of four counts of the unlawful distribution of a controlled substance, violations of § 13A-12-211, Ala.Code 1975. Bonner was sentenced as a habitual offender to life imprisonment on each count; those sentences were to be served concurrently. On August 25, 2000, we affirmed Bonner’s convictions and remanded the case for imposition of the enhancement provisions contained in § 13A-12-250 and § 13A-12-270, Ala.Code 1975. See Bonner v. State, 835 So.2d 234 (Ala.Crim.App.2000). We further directed the trial court to assess the Demand Reduction Assessment fines on each conviction. See § 13A-12-281, Ala.Code 1975.

When we remanded this case, the United States Supreme Court had recently released its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In that case, the Supreme Court held that any fact that increases a sentence above the statutory range must be submitted to a jury and proven beyond a reasonable doubt.

On August 31, 2001, this Court first addressed the effect of Apprendi on the enhancement provisions of § 13A-12-250 and § 13A-12-270. See Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d-(Ala.Crim.App.2001). In Poole, we held that Apprendi applies to § 13A-12-250 and § 13A-12-270, and the failure to submit such an enhancement to the jury-will invalidate a sentence if a proper objection is made. After Bonner was resen-tenced he objected to the newly enhanced sentences based on the holding in Appren-di For the reasons stated in Apprendi and Poole, Bonner’s sentences are due to be set aside. The trial court is directed to resentence Bonner without applying § 13A-12-250 and § 13A-12-270. Due return should be filed in this Court no later than 45 days from the date of this opinion.

APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF DECEMBER 15, 2000, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

McMILLAN, PH., and COBB and BASCHAB, JJ., concur.

      . Bonner was sentenced as a habitual felony offender because he had three prior felony convictions. The record indicates that the three prior convictions were not for drug-related offenses.

      . The record indicates that the second transaction occurred while "driving around on Sixth Street.” (R. 147.) Testimony at the sentencing hearing does not indicate that the location of this sale was within three miles of a school or a housing project; therefore, no sentencing enhancements should apply to the second transaction.

      . We note that, "[wjhile the enhancement statutes require that different enhancements for a single offense be served consecutively, the consecutive-service provisions of the enhancement statutes do not apply to convictions based on separate offenses.” Ex parte Garner, 781 So.2d 253, 255-56 (Ala.2000). "It is within the trial court’s discretion to allow sentences imposed for separate offenses to run concurrently when §§ 13A-12-250 and 13A-12-270 apply.” Ex parte Garner, supra.

       Note from the reporter of decisions: This case will also appear on a table of decisions without opinions.

       Note from the reporter of decisions: On November 30, 2001, on return to second remand, the Court of Criminal Appeals affirmed, without opinion. On January 11, 2002, that court denied rehearing, without opinion. On May 17, 2002, the Supreme Court denied certiorari review, without opinion (1010817).


author: COBB, Judge. SHAW, Judge, WISE, Judge,

text:
    Walton PRUITT v. STATE.
    CR-00-1013.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Walton Pruitt, pro se.
    Andrew W. Redd, general counsel, and Albert Sim Butler, asst, general counsel, Department of Corrections, for appellee.
   COBB, Judge.

Walton Pruitt appeals from the circuit court’s summary dismissal of his petition for a writ of habeas corpus. The petition challenged the punishment imposed upon Pruitt after he was found guilty of violating Department of Corrections (“DOC”) Rule 68, Admin. Reg. 403, theft of another’s personal property, and Rule 58, Admin. Reg. 403, lying or giving false testimony to an employee. Pruitt’s punishment was reclassification to a higher security prison; this reclassification resulted in his removal from work release.

Pruitt claimed in his petition that he was entitled to, but was denied, procedural due process during his disciplinary hearing because, he says, the punishments imposed against him affected a liberty interest, namely, remaining on work release. The State filed a motion to dismiss, arguing that Pruitt’s punishment did not involve the loss of any liberty interest, and thus, none of the due process rights mandated by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), was triggered. The circuit court summarily granted the State’s motion to dismiss the petition.

The circuit, court erroneously granted the State’s motion on the grounds that Pruitt does not have a liberty interest in remaining on work release. The Supreme Court has held that the DOC’s Classification Manual created a liberty interest in an inmate’s continued participation in work release. Ex parte Berry, 794 So.2d 307, 309 (Ala.2000) (“The language in the Classification Manual prevents the Department of Corrections from arbitrarily removing an inmate from the work-release program, and, by doing so, creates a liberty interest in an inmate’s continued participation in the work-release program”) (Emphasis supplied.) While neither this Court nor DOC may agree with the holding in Berry, we are nevertheless required to abide by that decision in all cases where such an issue has been properly presented for appellate review. See § 12-3-16, Ala.Code 1975.

Pruitt was entitled to a review of his due-process claims. Thus, this case is remanded to the circuit court with directions to that court to rule on Pruitt’s due process claims. We point out to the trial court that if the evidence from the disciplinary proceeding consisted entirely of hearsay testimony, the circuit court must make a determination on the record that the hearsay evidence presented “sufficient indicia of reliability.” See Hand v. State, 703 So.2d 1020, 1022 (Ala.Crim.App.1997)(emphasis added), citing Hughley v. State, 629 So.2d 703 (Ala.Crim.App.1993).

For the reasons stated above, this case is remanded with directions to the circuit court for actions consistent with the directions set forth in this opinion. A return to remand to this court shall be made within 42 days of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, J., concur; SHAW and WISE, JJ., concur specially, with opinions.

SHAW, Judge,

concurring specially.

The State, through the Alabama Department of Corrections, filed a brief in this case on April 17, 2001. The Alabama Supreme Court announced its decision in Ex parte Berry, 794 So.2d 307 (Ala.2000), on September 1, 2000. Yet the State did not cite or discuss Ex parte Berry in its brief. It is puzzling to me why the State does not cite such an important case in this particular area of the law. Certain members of this Court have been critical of the rationale and the holding in Ex parte Berry, and the State, in previous briefs, has also expressed its displeasure with that decision. However, I have made no comment on the rationale of that decision, and I decline to do so today. Ex parte Berry is the law until the Alabama Supreme Court decides to change it. I am bound by the decisions of that Court, as is the State.

WISE, Judge,

concurring specially.

I write to once again urge the Supreme Court to revisit its decision in Ex parte Berry, 794 So.2d 307 (Ala.2000). See my special writing in Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001).

      . Additional punishments were imposed, but Pruitt suffered no other punishment that implicated due-process considerations.

      . Although this Court often affirms rulings on petitions if the circuit court’s ruling is correct for any reason, this Court is unable to determine from the record whether summary dismissal of the petition was proper.

       Note from the reporter of decisions: On December 14, 2001, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On February 22, 2002, that Court denied rehearing, without opinion. On May 17, 2002, the Supreme Court denied certiora-ri review, without opinion (1011092).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Jonathan Isaac ROTSTEIN, Respondent.
    No. SC01-114.
    Supreme Court of Florida.
    Nov. 7, 2002.
    Rehearing Denied Jan. 10, 2003.

      John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, and Elizabeth Sikora Conan, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    Patricia S. Etkin of the Law Offices of Weiss and Etkin, Plantation, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Jonathan Isaac Rotstein. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s recommendation that Rotstein be suspended for one year.

FACTS

The Florida Bar filed a three-count complaint against Jonathan Isaac Rotstein alleging numerous violations in his negligent handling of a personal injury claim, his subsequent attempts to cover up his mistakes, and his attempts to enforce settlement agreements while knowingly taking positions adverse to the clients he was representing. After holding hearings, the referee issued a report making the following findings of fact and recommendations as to guilt.

Count I

Rotstein was hired by Ms. Linda Jarrett to handle a personal injury claim against the M & M/Mars Company. The referee found that Rotstein negligently failed to file the claim because he only wrote one letter to the company and took no further action. Rotstein did not advise Jarrett when the statute of limitations on the claim lapsed. Instead, he fraudulently created a letter that he backdated to July 8, 1998, purportedly advising Jarrett that he was withdrawing as her representative and that the statute of limitations would run on December 25, 1998. Rotstein sent additional letters to the Bar’s grievance committee, dated January 29, 2000, February 26, 2000, and May 14, 2000, all of which indicated that the withdrawal letter was accurate and true. At the hearings, Rotstein admitted that he drafted the letter to Jarrett some time in September 1999, not in 1998, because he panicked when he realized that the statute of limitations had expired. The referee found that by these various letters, Rotstein submitted four false documents to the grievance committee and to the Bar.

On September 8, 2000, before the formal hearing, Rotstein sent a letter to the Bar repudiating the veracity of the July 8, 1998, letter and disavowing all previous representations in his handling of the M & MTMars claim, including his claim that he had timely withdrawn and notified Jarrett of the statute of limitations. On December 11, 2000, Rotstein wrote a letter to Jarrett indicating that he failed to file her case and failed earlier to admit his mistake. Rotstein suggested mediation to compensate her for her injuries.

The referee recommended that Rotstein be found guilty of violating the following Rules Regulating the Florida Bar: 3M.3 (engaging in conduct that is unlawful or contrary to honesty and justice); 4-1.4(a) (failing to keep a client reasonably informed about the status of a matter and failing to comply with reasonable requests for information); 4-3.3 (knowingly making false statements of material fact or law to a tribunal); 4-8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice).

Count II

Ms. Margaret Beaver retained Rotstein to represent her in a claim for slip and fall injuries. Pursuant to a March 16, 2000, mediation, Beaver’s claim was voluntarily settled for $4250. Beaver subsequently refused to execute the release. On July 7, 2000, Rotstein filed a motion to enforce settlement without consulting with Beaver and without her knowledge or consent, thereby knowingly taking a position adverse to his client. The referee recommended that Rotstein be found guilty of violating rule 4-1.7 (representing a client where the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests).

Count III

Ms. Olga Petrucha retained Rotstein to represent her in a suit against a restaurant. The case settled at mediation for $500 and Petrucha executed some of the settlement documents, but she refused to endorse the settlement cheek when she discovered that her proceeds would be $12.15. Rotstein filed a motion to enforce settlement without discussing his actions or notifying Petrucha, and without her knowledge or consent, thereby knowingly taking a position adverse to his client. The referee recommended that Rotstein also be found guilty of violating rule 4-1.7 for this count.

As for discipline, the referee stated that counts II and III alone would likely have resulted in a public reprimand or an admonishment, but factoring in the violations for count I raises Rotstein’s misconduct to an “extremely serious” level. The referee stated that Rotstein’s misconduct fits within various disbarment standards of the Florida Standards for Imposing Lawyer Sanctions. The referee also found, as aggravating factors: (1) prior disciplinary offense, standard 9.22(a) (prior disciplinary conviction in Florida Bar v. Rotstein, TFB Case No.l999-31,449(07C), in which Rot-stein was admonished for minor misconduct in neglecting a client’s legal matter); (2) dishonest or selfish motive, standard 9.22(b); (3) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, standard 9.22(e); (4) submission of false evidence, false statements, or other deceptive practices during the disciplinary process, standard 9.22(f); and (5) substantial experience in the practice of law, standard 9.22(f) (Rot-stein was admitted to the Bar in 1991). The referee found as mitigating factors: (1) timely good faith effort to make restitution or to rectify consequences of misconduct, standard 9.32(d); and (2) remorse, standard 9.32(i). The referee stated that Rotstein’s actions constitute a serious offense and could carry with them “the most extreme punishment,” but he concluded that “under the circumstances, disbarment is neither required nor appropriate.” The referee recommended that under the “totality of the circumstances” Rotstein should be (1) suspended from the practice of law for a period of one year; (2) required to retake the ethics portion of the bar exam; and (3) required to pay all disciplinary costs. The referee also recommended that if Rotstein fails to fully comply with any of these recommendations, it should be deemed cause to subject him to further disciplinary proceedings.

The Bar petitioned for review, contesting the referee’s recommendation as to discipline, arguing that at least a three-year suspension is the appropriate sanction. Rotstein cross-petitioned, arguing numerous issues.

ANALYSIS

As a preliminary matter, we note that neither party contests the referee’s recommended findings of fact or recommendations as to guilt for the violations of rules 3-4.3, 4-1.4(a), 4-8.1(a), 4-8.4(c), and 4-8.4(d) under count I. Therefore, we approve the referee’s findings of fact and recommendations of guilt as to these violations without further discussion. We now proceed to review the matters contested by the parties.

We first consider Rotstein’s claim that his due process rights were violated because the referee did not exclude the testimony of a Bar rebuttal witness. At the hearings, Rotstein testified that he had never been sanctioned by a court for counseling clients to lie. The Bar called Judge Richard B. Orfinger as a rebuttal witness to testify about an incident in which he sanctioned Rotstein for counseling clients to make misrepresentations to the court. Rotstein argues that the testimony was unrelated to the instant case.

With regard to the admission or exclusion of evidence in bar disciplinary proceedings, this Court has held that because “bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by technical rules of evidence.” Florida Bar v. Rendina, 583 So.2d 314, 315 (Fla.1991). Further, this Court has reviewed referees’ actions regarding the admissibility of evidence in discipline cases using an abuse of discretion standard. See Florida Bar v. Hollander, 607 So.2d 412 (Fla.1992) (Hollander failed to show that the referee abused his discretion in qualifying an expert witness); Rendina, 583 So.2d 314 (referee did not abuse his discretion regarding the admissibility of evidence). Applying that standard to the instant case, we conclude that the referee did not abuse his discretion in permitting the witness to testify in rebuttal to Rotstein’s statements. More importantly, despite the extensive arguments made by Rotstein and the Bar, there is no point in the referee’s report where the referee cited to or relied upon the testimony of Judge Orfinger. The referee allowed the witness to testify, but he did not mention Judge Orfinger’s testimony in his report. We find that Rotstein’s due process rights were not violated and that this argument is without merit.

Rotstein next argues that the referee’s recommendation of guilt as to a violation of rule 4-3.3 (knowingly making false statements of material fact or law to a tribunal) for count I is not supported because Rotstein did not make any false statements or provide false testimony in a court proceeding. He argues that rule 4-3.3 applies to a lack of candor to a tribunal, not a grievance committee, and that the applicable disciplinary rule is 4-8.1(a). Rotstein is correct on this point. We conclude that the referee’s finding of a rule 4-3.3 violation is not supported by the facts because Rotstein’s misconduct occurred in the course of his communications with the Bar and the grievance committee, not a court. Therefore, we disapprove the referee’s recommendation that Rotstein violated rule 4-3.3.

Rotstein further claims that the referee’s findings of fact do not support his recommendations that Rotstein violated rule 4-1.7 in counts II and III. Specifically, Rotstein contests the referee’s finding that Rotstein knew his actions were against his clients’ interests and that Rot-stein was acting in his own interest. This Court has stated that its “review of such matters is limited, and if a referee’s findings are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee.” Florida Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000). See also Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998).

We conclude that the record supports the referee’s findings that Rotstein filed the motions to enforce settlement against his two clients’ interests. Rotstein’s own testimony indicates that he filed the motions without discussing these matters with his clients and he did not seek their consent. Rotstein admitted being fully aware that his clients were not satisfied with the settlements, which is especially important because client Petrucha would only receive $12.15 after costs and Rotstein’s fees. Nevertheless, he admits attempting to force these cases to settlement. Thus, Rotstein knowingly took positions adverse to his clients in the very matters in which he was representing them when he filed the motions to enforce settlement. See Florida Bar v. Bailey, 803 So.2d 683, 689 (Fla.2001) (attorney who managed client’s real property for his own personal benefit and procrastinated in his efforts to sell the property violated rule 4-1.7); Florida Bar v. Lange, 711 So.2d 518, 520-21 (Fla.1998) (attorney who allowed his independent professional judgment to be compromised by his own personal financial interests in a case violated rule 4-1.7). Further, our review of the record indicates that the referee could have reasonably concluded that Rotstein filed these motions in an attempt to end proceedings and collect his fees. Therefore, we conclude that the referee’s findings are supported by competent, substantial evidence in the record and that the findings support the referee’s recommendation that Rotstein be found guilty of two violations of rule 4^1.7.

DISCIPLINE

Next, we consider the Bar’s challenge to the referee’s recommended discipline of a one-year suspension. It is well established that in reviewing a referee’s recommended discipline, this Court’s scope of review is somewhat broader than that afforded to findings of facts because, ultimately, it is the Court’s responsibility to order an appropriate discipline. See Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989).

The Bar argues that the appropriate discipline is a three-year suspension, while Rotstein claims that the appropriate discipline is a ten-day to ninety-day suspension. However, the cases cited by the Bar are distinguishable from the instant case because they involve criminal misdeeds or frauds upon the court, or are reinstatement or reciprocal discipline cases. See Florida Bar v. Orta, 689 So.2d 270 (Fla.1997) (denying reinstatement after three-year suspension for felony convictions because attorney continued to engage in fraudulent and deceitful conduct); Florida Bar v. Budnitz, 690 So.2d 1239 (Fla.1997) (disbarring attorney as reciprocal discipline because he was disbarred in New Hampshire regarding false statements in testimony before grand jury). The cases cited by Rotstein for support are not on point either because they do not include the numerous rule violations present in the instant case or because the cited cases are dated and do not reflect the evolving views of this Court. See Florida Bar v. Morrison, 496 So.2d 820, 821 (Fla.1986) (suspending for ten days an attorney who failed to timely file an appellate brief in a criminal appeal and made misrepresentations to the grievance committee); Florida Bar v. Neely, 372 So.2d 89, 93 (Fla.1979) (suspending for ninety days an attorney who took advantage of his clients by purchasing property on which they had a claim). In recent years, this Court has moved towards stronger sanctions for attorney misconduct.

Even considering our disapproval of the recommendation of guilt for a violation of rule 4-3.3, the referee correctly noted that the violations of rules 3-4.3, 4-1.4(a), 4-8.1(a), 4-8.4(c), and 4-8.4(d) for count I raise Rotstein’s misconduct to an extremely serious level. Rotstein was negligent in his handling of Jarrett’s personal injury claim. Instead of being truthful and admitting his mistake from the start, he engaged in the extremely dishonest and fraudulent misconduct of creating a backdated letter to his client. He then repeatedly made intentional misrepresentations to the Bar. Rotstein has demonstrated basic, fundamental dishonesty. When demonstrated, this is a serious flaw, which cannot be tolerated. We have stated that “[d]ishonesty and a lack of candor cannot be tolerated by a profession that relies on the truthfulness of its members.” Florida Bar v. Korones, 752 So.2d 586, 591 (Fla.2000). See Florida Bar v. Maynard, 672 So.2d 530 (Fla.1996) (disbarring attorney for several rule violations, including engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation). On the basis of the violations in count I alone, we approve the referee’s recommended discipline of a one-year suspension.

However, Rotstein’s misdeeds were not isolated to one case. Indeed, he committed rule violations in the course of representing clients in three separate cases. Also, the referee found five significant aggravating factors: prior disciplinary offense; dishonest or selfish motive; bad faith obstruction of the disciplinary proceeding; submission of false evidence, false statements, or other deceptive practices during the disciplinary process; and substantial experience in the practice of law. Rotstein argues that the referee improperly found Rotstein’s failure to comply with the Bar’s subpoena duces tecum an aggravating factor (standard 9.22(e), bad faith obstruction of the disciplinary proceeding). We agree with Rotstein and conclude that the referee should not have found this to be an aggravating factor. Nevertheless, considering the backdated letter and other facts of this case, Rot-stein’s numerous and serious rule violations, and the four remaining aggravating factors, our disapproval of this single aggravating factor does not result in a reduced discipline. We find that Rotstein’s intentional and egregious misconduct has demonstrated an attitude that is wholly inconsistent with professional standards and, thus, we approve the referee’s recommended discipline of a one-year suspension.

We also approve the referee’s other recommended disciplinary sanctions, including requiring Rotstein to retake the ethics portion of the bar exam. Such sanctions are standard in disciplinary cases in which an attorney is suspended for over ninety-one days. See R. Regulating Fla. Bar 3-5.1(e) (suspension of more than ninety days shall require proof of rehabilitation and may require passage of all or part of the Florida bar examination); Florida Bar v. Nunes, 679 So.2d 744 (Fla.1996) (attorney required to complete specified CLE hours).

COSTS

Finally, we examine Rotstein’s motion to strike the Bar’s third amended affidavit of costs. Rotstein challenges the amended affidavit because it contains additional transcript costs that resulted from bringing the case before this Court.

In his initial argument, Rotstein places great weight on rule 3-7.7(e)(2) of the Rules Regulating the Florida Bar, which states in part that the “party seeking review shall be responsible for, and pay directly to the court reporter, the cost of preparation of transcripts.” (Emphasis added.) Rotstein argues that because the Bar petitioned this Court for review of the referee’s report, the Bar should be “responsible for” the payment of these costs. However, Rotstein’s reliance on rule 3-7.7 is misplaced. Although rule 3-7.7 addresses the procedures for bringing a disciplinary case before the Supreme Court, it is actually rule 3-7.6(o) that addresses the assessment of costs. Rule 3-7.6(o) states in part:

(o) Costs
(1) Taxable Costs. Taxable costs of the proceedings shall include only:
(B) court reporters’ fees;
(C) copy costs;
(2) Discretion of Referee. The referee shall have discretion to award costs....

Further, this Court specifically stated in In re Amendments to Rules Regulating the Florida Bar, 718 So.2d 1179, 1180 (Fla.1998), that the “party requesting the transcript is to bear the cost of transcription, subject to the possibility of assessment in connection with the judgment ultimately rendered in the case.” (Emphasis added.) In the instant case, the referee specifically stated that “[i]t is apparent that other costs have or may be incurred. It is recommended that all such costs and expenses together with the foregoing itemized costs be charged to the respondent.” We conclude that the referee used his discretion and made a permissible assessment of transcript costs in connection with the judgment rendered in the case.

Rotstein also argues that the Bar did not fully prevail in this case, so costs should not be awarded to the Bar. In contrast to Rotstein’s argument, rule 3-7.6(o)(3), “Assessment of Bar Costs,” states that “[w]hen the bar is successful, in whole or in part, the referee may assess the bar’s costs against the respondent.” (Emphasis added.) Further, this Court has stated that “[w]here the choice is between imposing costs on a bar member who has misbehaved and imposing them on the rest of the members who have not misbehaved, it is only fair to tax the costs against the misbehaving member.” Florida Bar v. Kassier, 730 So.2d 1273, 1276 (Fla.1998). In the instant case, we conclude that Rotstein violated several disciplinary rales and we approve his suspension. Clearly, the Bar has prevailed. Therefore, we deny the motion to strike and award costs to the Bar.

CONCLUSION

Accordingly, we approve the referee’s findings of fact and recommendations of guilt as to the violations of rales 3-4.3, 4-1.4(a), 4-1.7, 4-8.1(a), 4 — 8.4(c), and 4-8.4(d). We disapprove the referee’s recommendation that Rotstein be found guilty of violating rale 4-3.3, and disapprove the referee’s finding of aggravating factor 9.22(e). Finally, we approve the referee’s recommended discipline that Rotstein be suspended for one year.

Jonathan Isaac Rotstein is hereby suspended from the practice of law for one year, after which he must make an affirmative demonstration of rehabilitation before he will be reinstated to the practice of law in Florida. Further, Rotstein must retake and pass the ethics portion of the bar exam. The one-year suspension will be effective thirty days from the filing of this opinion so that Jonathan Isaac Rot-stein can close out his practice and protect the interests of existing clients. If Jonathan Isaac Rotstein notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Jonathan Isaac Rotstein shall accept no new business from the date this opinion is filed until the suspension is completed. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Jonathan Isaac Rotstein in the amount of $8,482.15, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, LEWIS and QUINCE, JJ., and HARDING, Senior Justice, concur.

      . Rule 4-8.1(a), "Bar admission and disciplinary matters,” specifically refers to attorneys involved in bar disciplinary matters and states, "An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact.” (Emphasis added.) The accompanying comments, although not binding, state that the "duty imposed by this rule applies to a lawyer's own admission or discipline” and that "it is a separate professional offense for a lawyer to knowingly make a misrepresentation ... in connection with a disciplinary investigation of the lawyer’s own conduct.” R. Regulating Fla. Bar 4-8.1 cmt.

      . Rule 4-1.7 is violated when a lawyer represents a client and the lawyer’s exercise of independent professional judgment in that representation may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer's own interests. See R. Regulating Fla. Bar 4-1.7.

      . The respondents in disciplinary cases who failed to comply with a subpoena usually either ignored the subpoena or else feigned compliance by submitting some, but not all, of the subpoenaed items. See, e.g., Florida Bar v. Spann, 682 So.2d 1070, 1072 (Fla.1996) (attorney served with grievance committee subpoena failed to produce certain records). The record in the instant case indicates that Rotstein did not engage in either of these activities. Rather, Rotstein's counsel submitted written objections to the Bar arguing that the subpoena was unduly burdensome. Further, Rotstein also challenged the subpoena because he thought it violated his right to be free from unreasonable search and seizure. See R. Regulating Fla. Bar 3-7.11(g) (permitting a respondent to claim a privilege or right properly available under applicable law). Based on rule 3-7.11(g) and case law, we conclude that Rotstein’s challenges to the scope of the subpoena do not justify finding this aggravating factor.