author: SEE, Justice. JOHNSTONE, Justice MOORE, Chief Justice HARWOOD, Justice WOODALL, Justice

text:
    Ronda K. KENNEDY v. The WESTERN SIZZLIN CORPORATION. Lisa M. Pate v. The Western Sizzlin Corporation. Eloise E. Webb et al. v. The Western Sizzlin Corporation.
    1010804, 1010805 and 1011210.
    Supreme Court of Alabama.
    March 7, 2003.

      Desmond V. Tobias of Windom & Tobi-as, L.L.C., Mobile, for appellants Ronda K. Kennedy and Lisa M. Pate.
    John D. Saxon and Symantha Christeen Thomas of John D. Saxon, P.C., Birmingham; and Tammy C. Woolley of Gorham & Waldrep, P.C., Birmingham, for appellants Eloise Webb, Rebecca R. Frye, Hope Daniels Cassidy, Emma Diane Foley, Wyonia Lipscomb, and Jeannette T. Lassiter.
    Kenneth A. Hitson, Jr., of Nix, Holts-ford, Gilliland, Higgins & Hitson, P.C., Daphne; and Mickey Womble, Monroe-ville, for appellee.
   SEE, Justice.

Ronda Kennedy, Lisa Pate, Eloise Webb, Rebecca Frye, Hope Daniels Cassi-dy, Emma Diane Foley, Wyonia Lipscomb, and Jeanette Lassiter appeal from summary judgments entered in favor of The Western Sizzlin Corporation (“WSC”) on several claims alleging vicarious tort liability and negligence. This appeal presents two issues: (1) whether an agency relationship existed between WSC and its franchisee; and (2) whether WSC, in moving for a summary judgment, properly shifted the burden of proof as to each of the direct-negligence claims brought by Kennedy and Pate (case nos. 1010804 and 1010805).

We hold that an agency relationship did not exist between WSC and its franchisee and, therefore, that summary judgments for WSC on the claims alleging vicarious liability and negligent or wanton hiring, training, supervision, and retention were proper. However, we also hold that WSC did not meet its burden of proof when moving for a summary judgment on the direct-negligence claims brought by Kennedy and Pate, and, therefore, that summary judgments on those claims were improper. Consequently, we affirm in part, reverse in part, and remand in case no. 1010804 and case no. 1010805, and we affirm in case no. 1011210.

I.

Bryan Kogut and Robert Lambert are the sole stockholders of Lambert Restaurant Company, Inc. (“LRC”). In January 1998, Kogut and Lambert, in their individual capacities and on behalf of LRC, entered into an agreement with WSC pursuant to which LRC obtained a franchise to operate a Western Sizzlin restaurant in Monroeville. Kogut served as the president of LRC, and Lambert served as the vice president, managing the daily operations of the restaurant. The restaurant first opened for business on Mother’s Day 1998.

Lambert has a history of sexual misconduct and sexual harassment in the workplace, including a criminal conviction for attempted sexual abuse. Before managing the Western Sizzlin restaurant, Lambert had worked as a district manager for the Waffle House restaurant chain in Florida. Waffle House terminated Lambert’s employment following its investigation of a sexual-harassment claim.

Kennedy, Pate, Webb, Frye, Cassidy, Foley, Lipscomb, and Lassiter are all former employees of the Western Sizzlin restaurant in Monroeville. On August 1, 1998, Webb contacted Kogut after several employees reported that Lambert had sexually harassed them. Kogut spoke to Lambert about those allegations and instructed him that he should not return to the restaurant. Lambert did not return to the restaurant until some time in late November 1998.

On August 8, 1998, Kogut called Jerry Plunkett, director of franchise operations at WSC, to inform him of the sexual-harassment allegations the employees had made against Lambert. Kogut also asked Plunkett whether, in light of those allegations, there was anything he could do to terminate the franchise agreement as to Lambert. Plunkett responded that legally WSC could do nothing under the franchise agreement unless and until Lambert was arrested or criminally charged.

On November 5, 1998, Cassidy filed with the Equal Employment Opportunity Commission (“EEOC”) a sexual-harassment charge against Lambert, in his capacity as one of the owners of the Western Sizzlin restaurant in Monroeville. The other employees in this case filed similar complaints during the succeeding months. On September 11, 2000, the EEOC issued determination letters regarding the merits of each of those claims, finding reasonable cause that Lambert had subjected the employees and other females to sexual harassment and to a hostile working environment in violation of Title VII of the Civil Rights Act of 1964.

On November 28, 1998, despite Kogut’s pleas that he stay away, Lambert returned to the restaurant to resume the general management of the restaurant. After Lambert’s return, Kogut continued his discussions with WSC management regarding how he might be able to salvage the situation and terminate Lambert’s interest in the franchise. With Lambert back at the restaurant, sales began to fall, causing LRC to fall severely behind in its debt obligations. On May 17, 2000, LRC’s mortgagee foreclosed on its franchise. On May 18, 2000, WSC terminated its franchise agreement with LRC, pursuant to section 11.2(b)(iii) of the franchise agreement, which allows WSC to terminate the agreement in the event of foreclosure by a creditor.

On April 21, 2000, Webb, Frye, Cassidy, Foley, Lipscomb, and Lassiter (case no. 1011210) (hereinafter referred to collectively as “Webb”) sued WSC, asserting claims of negligent hiring, training, and supervision; assault; battery; invasion of privacy; intentional infliction of emotional distress; breach of contract; and fraud. They also sued Lambert and LRC, asserting similar claims. On June 2, 2000, Kennedy (case no. 1010804) and Pate (case no. 1010805) sued WSC, asserting claims of assault and battery; invasion of privacy; negligent or wanton hiring, supervision, and/or retention of employment; and the tort of outrage. Kennedy and Pate also sued Lambert and LRC on claims of assault and battery, invasion of privacy, and the tort of outrage. Webb, Kennedy, and Pate each amended their complaint to assert a direct-negligence claim against WSC. In all three cases, the trial court entered default judgments against Lambert and LRC.

On November 1, 2000, WSC moved for a summary judgment as to each claim brought against it by Kennedy and Pate, arguing that no agency relationship existed between Lambert and WSC, or, alternatively, that it never authorized or ratified Lambert’s conduct and that the alleged acts were outside the scope of Lambert’s employment. In support of each motion, WSC filed a statement of facts and a brief. In each action, WSC failed to state the basis for its summary-judgment motion on the direct-negligence claim in either its motion or brief.

On December 27, 2000, WSC moved for a summary judgment on each claim brought against it by Webb. The statement of facts and the brief it filed in support of that motion were identical to those it filed in the Kennedy and Pate cases. On September 10, 2001, WSC filed a supplemental argument in support of its motion for a summary judgment in Webb’s case, arguing (1) that as to the direct-negligence claim it had no duty of care, and (2) that Webb failed to present substantial evidence creating a genuine issue of material fact as to the fraud and breach-of-contract claims. The trial court entered a summary judgment for WSC on all claims in each of the three cases.

II.

Kennedy, Pate, and Webb argue that an agency relationship existed between WSC and LRC and between WSC and Lambert and, therefore, that WSC is vicariously liable for the intentional torts committed by Lambert in the scope of his employment and is liable for its negligent and/or wanton hiring, training, supervision, and retention of Lambert. In addition, Kennedy and Pate argue that WSC did not carry its initial burden in moving for a summary judgment on each of their direct-negligence claims and, therefore, that summary judgments on their direct-negligence claims were improper.

A.

Kennedy, Pate, and Webb contend that an agency relationship was created between WSC, on the one hand, and LRC and Lambert, on the other, by WSC’s retaining a right to control the operations at the Monroeville Western Sizzlin restaurant. They rely on the following provisions in the franchise agreement between WSC and LRC to support their proposition:

“7.3 Operations Manual
“(a) You shall operate the Franchised Business in strict compliance with a [sic] standard procedures, policies, rules and regulations established as incorporated in Our operations manual(s) as same may be amended and revised from time to time, including all bulletins, supplements, and ancillary materials (collectively referred to herein as the ‘Operations Manual’). The subject matter of the Operations Manual may include, but not be limited to, matters such as: forms, information relating to product and menu specifications, cash control, purchase orders, general operations, labor schedules, personnel, Gross Sales reports, payroll procedures, training and accounting, safety and sanitation, design specifications and color of uniforms, display of signs and notices, authorized and required equipment and fixtures, including specifications therefor, Trademark usage insurance requirements, lease requirements, decor, standards for management and personnel, hours of operation, yellow page and advertising
formats, standards of maintenance and appearance of the Restaurant.
“(b) We shall have the right to modify the Operations Manual at any time and from time to time by the addition, deletion, or other modification to the provisions thereof. All such modifications shall be equally applicable to all similarly situated franchisees who are required by their franchise agreement to comply therewith, and no such modification shall alter Your fundamental status and rights under this Agreement. Modifications in the Operations Manual shall become effective upon delivery of written notice thereof to You unless a longer period is specified in such written notice. The Operations Manual, as modified from time to time as hereinabove provided shall be an integral part of this Agreement and reference made in this Agreement, or in any amendments, exhibits or schedules hereto, to the Operations Manual shall be deemed to mean the Operations Manual kept current by amendments from time to time....
“7.6 Right of Inspection
“(a) We shall have the right from time to time, and without prior notice to You, to send representatives to the Restaurant, to inspect Your operations, business methods, service, management, financial records and administration, and to determine the quality thereof and the faithfulness of Your compliance with the provisions of this Agreement and the Operations Manual and You shall cooperate fully with Us and Our representatives and agents with respect to such inspections.... ”

In addition to relying on the language of the franchise agreement, Kennedy, Pate, and Webb rely on the fact that WSC employees trained Lambert and certain other LRC employees and that they conducted periodic inspections of the restaurant. They claim that those circumstances, along with the franchise agreement, provide sufficient evidence of an agency relationship between WSC, on the one hand, and LRC and Lambert, on the other. We disagree.

We have clearly stated the standard of appellate review of a summary judgment:

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“... Ala.Code 1975, § 12-21-12, mandates that the [defendants] meet their burden by ‘substantial evidence.’ Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present ‘evidence of such weight and quality that fair-minded persons in the existence 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).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

A franchise agreement, without more, does not make the franchisee an agent of the franchisor. Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 924 (Ala.1988). When a plaintiff is alleging liability based on the doctrine of re-spondeat superior, the test for determining whether an agency relationship exists is “whether the alleged principal reserved a right of control over the manner of the alleged agent’s performance.” Wood v. Shell Oil, 495 So.2d 1034, 1036 (Ala.1986). However, “[t]he retained right to supervise the alleged agent to determine if that person conforms to the performance required by a contract with the asserted principal does not, itself, establish control.” Id.

We recognize that a summary judgment on the issue of agency is generally inappropriate because agency is a question of fact to be determined by the trier of fact. Wood, swpra. “This is not to say, however, that agency may be presumed; the party asserting it has the burden of adducing [substantial] evidence to prove its existence.” 495 So.2d at 1035-36 (citing Federal Land Bank of New Orleans v. Jones, 456 So.2d 1 (Ala.1984)). In opposition to WSC’s motions for a summary judgment, Kennedy, Pate, and Webb failed to present substantial evidence of the existence of an agency relationship between WSC, on the one hand, and LRC and Lambert, on the other. Specifically, they presented no evidence indicating that WSC controlled the day-to-day operations of the Monroeville restaurant. Rather, WSC’s control was limited to ensuring that LRC complied with the franchise agreement and, in turn, the operations manual. The operations manual was designed to ensure uniformity in service among Western Siz-zlin franchises. Although WSC did train LRC employees, including Lambert, the purpose of this training was to encourage compliance with the operations manual.

Further evidence of WSC’s absence of control over the restaurant’s operations can be seen in the period following the date on which the employees first brought allegations of sexual harassment against Lambert. When informed of the employees’ complaints, WSC told Kogut that its hands were tied unless Lambert’s actions constituted a breach of the franchise agreement. WSC could not terminate the franchise agreement based on Lambert’s alleged sexual harassment until it or Lambert received notice from a governmental agency that he was violating the law. The EEOC issued its determination letter in November 2000. As of that date, however, WSC had already terminated the franchise agreement on other, purely financial, grounds.

LRC, that is, Kogut and Lambert, retained sole control over employment decisions at the restaurant. At the start of the venture, they (not WSC) decided that Lambert was going to be the general manager of the restaurant, and under the franchise agreement WSC had no authority to interfere with this decision.

Kennedy and Pate argue, in the alternative, that even if there is no actual agency relationship in this case, Lambert acted with the apparent authority of WSC. Apparent authority is inferred from the conduct of the principal. That is, it is authority that “ ‘the principal has held out the agent as possessing, or which he has permitted the agent to represent that he possesses.’ ” Union Oil Co. v. Crane, 288 Ala. 173, 178, 258 So.2d 882, 885 (1972)

(quoting Pearson v. Agricultural Ins. Co., 247 Ala. 485, 488, 25 So.2d 164, 167 (1946)). Although Kennedy testified that she thought that WSC and LRC were the same entity, neither Kennedy nor Pate offered any evidence indicating that WSC did anything to create an appearance of authority in Lambert. Bare assertions are not evidence, much less substantial evidence. Ex parte Awtrey Realty Co., 827 So.2d 104, 109 (Ala.2001). Moreover, there is no evidence indicating that WSC permitted Lambert to hold himself out as its agent. In fact, the franchise agreement specifically prohibits doing so:

“14.1 Relationship of Franchisee to Company
“... You have no authority to create or assume in Our name or on Our behalf, any obligation, express or implied, or to act or to purport to act as our agent or representative on Our behalf for any purpose whatsoever.”

Therefore, we do not conclude that an agency relationship existed between WSC, on the one hand, and LRC and Lambert, on the other, under a theory of apparent authority.

B.

Kennedy and Pate contend that WSC did not meet its burden of proof in moving for a summary judgment on each of their direct-negligence claims. We agree.

“ ‘[A] party seeking a summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion.’” Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When a motion for a summary judgment is based on a failure of the nonmovant’s evidence, the moving party must indicate where the nonmovant’s case suffers an evidentiary failure. Id. We have read the summary-judgment motions and the accompanying briefs WSC filed in the Kennedy and Pate cases, and we note that WSC did not devote any portion of its argument to the direct-negligence claims. Accordingly, the burden of creating, by substantial evidence, a genuine issue of material fact as to the direct-negligence claims never shifted to Pate and Kennedy; therefore, the trial court’s summary judgments were improper as to the direct-negligence claims.

III.

The remaining arguments of Kennedy, Pate, and Webb — that WSC authorized and/or ratified Lambert’s tortious conduct; that WSC was on notice or that it had knowledge of Lambert’s tortious conduct; that WSC failed to take adequate steps to remedy the tortious conduct; and that Lambert committed the tortious acts within the line and scope of his employment— are all premised on our holding that there was an agency or employee-employer relationship between WSC and Lambert. Because we have concluded that there was no agency relationship — either actual or apparent — between them, there is no need to address these remaining arguments.

IV.

In case no. 1010804 and case no. 1010805, we reverse the summary judgments as to the direct-negligence claims only, affirm the summary judgments as to the remaining claims, and remand the case to the trial court for further proceedings consistent with this opinion. In case no. 1011210, we affirm the summary judgment in its entirety.

1010804 and 1010805 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1011210 — AFFIRMED.

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

JOHNSTONE, J., concurs specially in part.

LYONS, J., concurs in the result.

MOORE, C.J., and HARWOOD and WOODALL, JJ., concur in part and dissent in part.

JOHNSTONE, Justice

(concurring specially in part).

But for one exception I concur. The exception is that I express no opinion on the propriety of summary judgment on Webb’s claim against WSC for its own negligence in case number 1011210.

In all three cases my concurrence on the issue of apparent authority is restricted to the particular scenario and issue presented by these cases: whether any acts by the franchisor-alleged-principal WSC caused the franchisee-alleged-agent Lambert to appear to Lambert’s own employees to be the agent of WSC. The cases now before us do not address any claims by any of Lambert’s customers, invitees, vendors, or others who were not Lambert’s own employees that any such non-employees were entitled to rely on apparent authority in Lambert to act as agent for WSC. The validity of any person’s claim that he or she has relied on apparent authority in an alleged agent depends in part on whether acts by the alleged principal reasonably foreseeably conveyed to the particular claimant an appearance of agency in the alleged agent.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in affirming the summary judgments in favor of WSC, but I respectfully dissent from the reversal of that portion of the summary judgments in case no. 1010804 and case no. 1010805 dealing with direct negligence by WSC.

Plaintiff Lisa Pate states in her complaint: Kennedy’s allegations in her second amended complaint of “direct negligence” are identical to those of Pate.

“46. At the times and places made the basis of this lawsuit, the Plaintiff, Lisa M. Pate, sustained the injuries and damages complained of which were proximately caused by the negligence of the Defendants, Western Sizzlin Corporation, and fictitious parties A, B, C, D, E, and/or F, in one or more of the following respects:
“a) Negligently allowing Lambert Restaurant Company and Robert N. Lambert to obtain, purchase, maintain, manage, and supervise a Western Sizzlin franchise, which acts constitute negligence on behalf of Western Sizzlin Corporation;
“b) Negligently failing to establish safe work practices and procedures for maintaining the premises and work environment in a safe condition for the Plaintiff and other employees;
“c) Engaging in a course of action in reference to Lambert Restaurant Company and Robert N. Lambert which constitutes negligence on behalf of Western Sizzlin Corporation.”

This Court has determined that no agency relationship existed in those cases. The so-called “direct-negligence” claims alleged are claims that Alabama courts have never recognized. The trial court entered summary judgments for WSC on “all counts as to all claims against it” — the logical result considering the fact that the trial court also found no agency relationship to exist.

Therefore, I dissent from the reversal of the summary judgments on the “direct-negligence” claims of Pate and Kennedy.

HARWOOD, Justice

(concurring in part and dissenting in part).

I respectfully dissent in all three appeals as to the holding expressed in Part II.A. of the main opinion that there was not sufficient evidence presented to create a genuine issue of material fact as to whether an agency relationship existed between WSC, on the one hand, and LRC and Lambert, on the other hand. I concur in the holding expressed in Part II.B. of the opinion that a genuine issue of material fact exists relative to the claims against WSC alleging direct negligence, sufficient to require a reversal as to that issue of the summary judgments granted WSC.

I agree with the main opinion that the mere existence of a franchise agreement does not per se make the franchisee the agent of the franchisor, but rather the test remains whether the franchisor reserves a right of control over the manner of the franchisee’s performance.

I find the following passages from the “Brief of Appellants” to be supported by the record as to their factual references, and I adopt these passages as a fair summary of the additional evidence of retained right of control, which, combined with that set out in the main opinion, persuades me that a genuine issue of material fact exists at this stage of the proceedings:

“It is clear from the franchise agreement between [WSC] and LRC that [WSC]’s Operations Manual, as well as ancillary manuals which were provided to LRC, such as the Management Training Manual Management Skills, New Restaurant Opening Manual, and the Skills Training Guides, are incorporated as part of the terms and conditions of the franchise agreement. [WSC] also reserves the right in § 7.6 of the franchise agreement to send representatives to the restaurant to inspect the operations, business methods, service, management, financial records and administration, and to determine the quality thereof and ‘the faithfulness of Your compliance with the provisions of this agreement and the Operations Manual,’ again referencing that LRC was required to comply with the provisions of not only the franchise agreement but also the Operations Manual. (C. at 510, 932a, 933).... Reference to compliance with the Operations Manual is also made in the Training and Supervision section of the franchise agreement between LRC and [WSC]:
“ ‘(e) We may, from time to time, in Our discretion, cause Our field representatives to visit Your Restaurant for the purpose of rendering advice and consultation or training, with respect to the Restaurant, its operation and performance, and compliance by You with the Operations Manual.’
“(C. at 513)....
“The Operations Manual provided to LRC consists of approximately 900 pages. The topics covered by the manual are Food Safety & Sanitation; Human Resources; Management Systems; Marketing; Purchasing; Restaurant Accounting; Risk Management; Training; and Staff Positions. (C. at 1060). The Management Training Manual Management Skills consists of approximately 600 pages. The topics covered by this manual are the same as those covered in the Operations Manual with the exception of Staff Positions, and it contains most of the same documents. (C. at 2439). Both manuals have Human Resources sections which provide detailed policies and procedures with regard to all aspects of employment. The manuals provide detailed policies — which franchisees must comply with — on how to find and attract workers, covering topics such as staffing requirements, job descriptions, essential job functions, work force, recruiting focus, and sources of employees and ways of recruiting those particular sources; how to interview, select, and hire employees; how to retain employees; legal considerations in recruiting and hiring employees, compensation and benefits, regulating the workforce, recordkeeping and notices; and evaluating, disciplining and terminating employees.
“In addition, [WSC] provides numerous forms, including, but not limited to, staffing requirements for a new store; staffing requirements for continuing operations; job description summaries; essential job functions; ad samples; hourly applications for employment; management applications for employment; addendums for applications for employment; application review forms; forms on how to interview; sample interview questions; interview inquiry guidelines; reference check worksheets; employee withholding authorization forms; co-worker performance evaluations; attendance records; disciplinary reports; employment eligibility forms; new hire first day checklist; co-worker handbook sample; uniform program and order form; name tag order form; sexual harassment complaint form; payroll deduction forms; employee action form; employee information form; management review form; employee month/ year qualification program; and counseling report forms. (C. at 1018-19, 1058-2456).
“The Skills Training Guides were provided to LRC for the eleven staff positions at LRC. Each manual instructs the employee on how to perform his or her job. (C. at 1028, 2459-2776). The New Restaurant Opening Manual instructs the franchisee on planning and building a Western Sizzlin restaurant; tells them what to expect; provides an eighteen (18) week countdown which provides a detailed ‘to do’ list for the franchisee; instructs the franchisee how to prepare food bar layouts and place the initial food orders; provides an opening week labor schedule; provides information on pricing, menu development, and advertising; provides checklists for pre-clos-ing and closing; provides a training agenda; and provides numerous backup forms. (C. at 1018, 2778-2997).
“[WSC] provides training at its corporate store for owners and managers of franchises, as well as its own managers. The training includes familiarizing the trainee with the procedures of [WSC] and other operations of the restaurant, including, but not limited to, preparing food; labor schedules; quality control; cleanliness; service requirements; personnel matters within the Operations Manual; training on the progressive discipline policy; and training on sexual harassment. In essence, the purpose of the training is to learn the way [WSC] operates a restaurant. The training provided to the franchisees is substantially the same as that provided to [WSC’s] managers. (C. at 764-66, 976, 1052, 946-47, 1029). Tests are administered as to each section of training completed. (C. at 980). While the training is certainly geared toward food preparation and the practical dos and don’ts of running a restaurant, there is significant training and emphasis on personnel and human resource issues.
“[WSC] also conducted pre-opening training for LRC; provided on-site training; assisted in setting up personnel records; and discussed the discipline of employees, among other things. (C. at 778-79, 781-82, 914-16, 990, 993).
“[WSC’s] franchise field consultants visited the Monroeville franchise at least once a month, consulting with Mrs. Webb and Mr. White [assistant managers] about ‘anything to do with operating a restaurant,’ and ensuring the restaurant was being operated in the manner in which they had been trained by [WSC]. (C. at 777-78). The franchise field consultant’s job was to assist the franchise ‘in any way,’ and Mr. Dean, the franchise field consultant for the Monroeville franchise, was summoned to Monroeville on several occasions to assist the managers of that restaurant in the daily operation of the Monroeville restaurant. (C. at 985-86). He discussed personnel matters and issues with them such as the number of servers on the floor; scheduling more training for employees; and sitting down with the servers, going through the procedures of service, observing their performance, and providing feedback about the manner in which they performed their job. (C. at 995). It is clear that [WSC] had substantial involvement with LRC’s personnel practices and procedures, and by mandating that LRC comply with these myriad manuals, to include human resources matters, [WSC] retained a very strong right of control over LRC.”

(Appellants’ brief at pp. 41-47, emphasis in original.)

While it may be an overstatement to say that WSC retained “a very strong” right of control over LRC, the degree of retained control evidenced by the aggregate of all aspects of the parties’ relationship is sufficient to create a genuine issue of material fact as to the extent of that control.

WOODALL, Justice

(concurring in part and dissenting in part).

I concur in case no. 1010804 and case no. 1010805 insofar as the summary judgments as to the direct-negligence claims are reversed. As to case no. 1011210, I respectfully dissent.

“As this Court has held, ‘the existence and scope of an agency relationship are questions of fact to be determined by the jury.’ ” Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000) (quoting Standard Plan, Inc. v. Tucker, 582 So.2d 1024, 1029 (Ala.1991)). I believe that the plaintiffs offered substantial evidence that WSC retained a right of control over the manner in which the Western Sizzlin restaurant was operated. Therefore, I would reverse the judgments of the trial court, and remand the cases for further proceedings.

      . The allegations against Lambert include forcible rape, unwanted sexual touching, and inappropriate sexual remarks. Because WSC does not challenge the veracity of those claims for purposes of this appeal, it is not necessary to discuss in detail the employees’ sexual-harassment claims.

      . On appeal, Webb argues that the trial court should not have considered WSC's supplemental argument because, she says, it was not filed in accordance with the notice requirements set forth in Rule 56(c)(2), Ala. R. Civ. P. However, because Webb did not object in the trial court, this issue was not properly preserved for appellate review.

      . Kennedy and Pate do not allege, or offer any evidence indicating, that they relied to their prejudice on their alleged understanding that WSC and LRC were "one in the same.” See Union Oil, 288 Ala. at 178, 258 So.2d at 885-86 (" 'When one has reasonably and in good faith been led to believe ... that a certain agency exists, and in good faith acts on such belief to his prejudice, the principal is estopped from denying such agency.' ” (quoting Halle v. Brooks, 209 Ala. 486, 487, 96 So. 341, 342 (1923))). Nonetheless, because WSC never "permitted the appearance of authority” in Lambert, any such reliance by Kennedy or Pate would have been unjustified. Id.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Davida CRUTCHER et al. v. WENDY’S OF NORTH ALABAMA, INC.
    1011648.
    Supreme Court of Alabama.
    March 7, 2003.

      Joe N. Lampley, Huntsville, for appellant.
    Richard J.R. Raleigh, Jr., of Wilmer & Lee, P.A., Huntsville, for appellee.
   HARWOOD, Justice.

On August 16, 2000, Davida Crutcher, a minor, proceeding by and through her next friends Leon Gaines and Rebecca Gaines, her grandparents, sued her former employer Wendy’s of North Alabama, Inc. (“Wendy’s”), a corporation owning several Wendy’s fast-food restaurant franchises in north Alabama. Crutcher’s complaint presented claims of false imprisonment, slander, and invasion of privacy arising out of her employment at a Wendy’s restaurant in Huntsville (“the restaurant”).

Wendy’s filed a motion for a summary judgment, along with supporting evidentia-ry materials. On April 23, 2002, after other filings by the parties, the trial court entered a summary judgment in favor of Wendy’s on all of Crutcher’s claims.

Crutcher then filed this appeal; the trial court subsequently granted her motion to supplement and correct the record on appeal. Crutcher presents 18 issues to be considered by this Court, 17 of which essentially contend that the summary judgment must be reversed because, she says, genuine issues of material fact exist. In the eighteenth issue, Crutcher contends that the trial court’s summary-judgment order was erroneous because it was prepared by counsel for Wendy’s.

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. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners 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 shows that, at the time of the events giving rise to this case, Crutch-er was 16 years old and was an employee at the restaurant. The restaurant, located at 2614 Memorial Parkway in Huntsville, was owned and operated by Wendy’s. Crutcher worked part-time as a cashier. On Sunday, July 25, 1999, she began work at 11:00 a.m. at the cash register for the drive-through window. Also working the drive-through window that day was Geno-ra Gordon, Crutcher’s co-employee and her aunt. Tiffany Erskine, an assistant shift manager, was also working the 11:00 a.m. shift on that date. Her duties as assistant shift manager included counting the money from the cash registers. At approximately 2:00 p.m. that day, Erskine removed the money from the drive-through-window cash register and took it to the office and proceeded to count it. After counting the money, Erskine thought that the cash register from the drive-through window was $50 short. As the assistant shift manager, it was Ers-kine’s duty to conduct an “investigation” into the apparently missing money. She went back to the front of the restaurant to look for the money, and she asked the cashiers if there had been any “over-rings” or if anyone had been in the office or had seen the money on the desk in the office. None of the employees indicated that they knew anything about the missing money. The record shows that Crutcher, Gordon, and Erskine were the only employees who had access to the drive-through-window cash register during the 11 a.m. shift. Erskine notified the employees present that she was telephoning the police to report the missing money, which she then proceeded to do. While on the telephone with the police operator, Ers-Mne asked what the police could do to help locate the missing money. Erskine was told by the operator that, with the employees’ approval, the officers could search the employees to determine if any one of them had the missing $50. Erskine notified the police despite the fact that she knew Wendy’s policy was that the police were not to be called unless there was a fire or robbery at a restaurant. Erskine testified that she was aware of that policy because she had been told by Michelle Robinson, the restaurant manager, about the circumstances under which the police were to be called to the restaurant. Erskine further testified that such policy was ordered by Clyde Newman, the president of Wendy’s and a shareholder.

After Erskine’s telephone call to the police, three Huntsville police officers arrived at the restaurant. They stated that they could ask each employee if he or she would consent to a search, and if an employee said no, then that employee would not be searched. Erskine testified in her deposition that, after the police told her what they could do, she asked them to search all of the employees, including herself. Crutcher stated that Erskine also told the police officers that Crutcher, Gordon, and she were the only employees who had gone into the restaurant office that day.

The officers proceeded to conduct an investigation. They asked Gordon, in Crutcher’s presence, if she would consent to being searched; Gordon refused. Crutcher initially testified in her deposition that the officers then “asked” her to go into the office to be searched. However, later in her deposition, Crutcher stated that she was “told” by the officers to go into the office to be searched. At any rate, she complied and accompanied a female officer into the office. During the course of the search, with only Crutcher and the female officer present, the officer searched under various articles of Crutch-er’s clothing. Crutcher was the only employee to be searched in this manner by the police. Crutcher testified that she did not say anything to the officer during the search. The record indicates that only Crutcher and Erskine were searched. Erskine testified that during her search she was ordered by the officer conducting the search to pull up her shirt, but the officer searched only under her bra. The officer also searched her socks and pockets.

While Crutcher was being searched, Gordon telephoned Crutcher’s grandmother, Rebecca Gaines, who drove to the restaurant. Crutcher left the restaurant with Mrs. Gaines and never returned to work there. Crutcher’s shift that day would have ended at 5:00 p.m., and various time references in the record show that Crutch-er left with her grandmother before the end of her shift. Crutcher testified in her deposition that she was not fired by Wendy’s and that Wendy’s later requested that she return to work.

Crutcher makes the separate assertions in her initial brief to this Court that, not only was the missing $50 not found on her person, but that “[i]n fact it was later discovered that the $50 was never missing and had never been stolen” and that “[t]he $50 was never stolen. At some point, Ers-kine found the money.” Only one citation to the record is provided for these unqualified statements, “C. 744,” but that page of the record, a page from the lengthy “Plaintiffs Response to the Defendant’s Motion for Summary Judgment,” contains no information relating to the statements. Crutcher also further asserts in her brief that “Erskine did have the money somewhere in the store and did find the money.” Her citation to the record following that statement is “C. 60,” which, in turn, is a page from the brief Wendy’s filed in support of its motion for a summary judgment. Again, we find nothing on that page of the record that relates in any way to Crutcher’s allegation that Erskine found the missing money. We do not find anywhere in the entire record for this appeal any support for the emphatic statements Crutcher makes that the $50 was found at some point in time, much less that Erskine was the one who found it.

Erskine testified in her deposition that the missing $50 was never located. Nicole Watkins, an assistant manager who arrived at the restaurant on the day in question after Erskine had determined that the money was missing, but before the police had arrived, testified that she undertook a “recount” of not only the drive-through-window cash register, but also the front register, on the chance that Erskine could have made a mistake, but she found that the register records were “both correct.” Watkins then counted the money Erskine had in the office, “and it was $50 short.” When asked if the $50 was “ever later discovered,” Watkins answered that it was not.

Crutcher also calls our attention to certain deposition testimony in the record, which, it appears, is actually what she is relying on in making the statements to this Court that Erskine found the missing money. First, Mrs. Gaines testified that “early Monday morning” (the incident occurred on a Sunday) she telephoned Michelle Robinson at the restaurant. According to her, Robinson said “I don’t think that $50 was missing. It could have been in some change.” She said, “I think it was in some change somewhere. That’s what she told me about the $50. She don’t think it was missing. But she think it was in some change she[] had put up somewhere.” At another point Mrs. Gaines reprised that conversation by stating that Robinson had “stated that she didn’t think the money was missing; that it was in change somewhere that she[] had put it.” As previously noted, however, Robinson was not at the store at any time on the day in question and her remarks can be understood only to represent a personal belief arising from speculation. The other record reference Crutcher makes in this regard is to the portions of her deposition testimony where, after being asked if the $50 had ever been located and, answering “I think it was,” and being further asked where it had been located, she answered “I’m not sure. I think they had miscounted or something. I’m not exactly sure what happened.” She explained that she thought “Genora [Gordon] was the one who told [her],” that they money had been located.

All we are left with in the final analysis, having read the portions of the record cited by Crutcher and having otherwise thoroughly reviewed the entire record, is that Robinson stated to Mrs. Gaines Robinson’s speculative belief that the money might well not be missing at all and that it “could have been in some change,” Accordingly, we do not find in the record any genuine issue of material fact to contradict the statements of Erskine and Watkins that the missing money was never found.

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

“I. Crutcher has not established a pri-ma facie case of false imprisonment.
“A. Crutcher was not detained unlawfully by force or threat of force.
“This Court finds that there was no direct restraint on her person, either by an exercise of force or an express or implied threat of force which compelled her to go where she did not want to go. Sanders [v. Shoe Show, Inc.], 778 So.2d [820] at 823 [(Ala.Civ.App.2000)]. Additionally, the Court finds that Erskine was acting outside the line and scope of employment when she called the police.
“This Court finds that there was no arrest or detention of Crutcher. No Wendy’s employee or police officer ever told Crutcher she could not leave the restaurant. (Crutcher depo., pp. 66-67, 69, 70). No Wendy’s employee ever told the police to keep Crutcher from leaving the restaurant. (Crutcher depo., p. 86). And no Wendy’s employee ever physically kept her from leaving the restaurant. (Crutcher depo., p. 86). Crutcher needed no permission from Erskine or Watkins, her supervisors at Wendy’s, to leave the restaurant. (Crutcher depo., p. 119). There is no evidence that Crutcher ever intended to leave the restaurant on July 25, 1999 up until the time her grandmother came to the restaurant, at which time she left without incident. (Crutcher depo., p. 75; Rebecca Gaines depo., p. 34). Crutcher presents no evidence that she tried to leave earlier in the day. Neither Wendy’s of North Alabama, Inc., nor any of its agents or employees ever detained Crutcher. (Crutcher depo., p. 86).
“B. Crutcher voluntarily consented to a search by Huntsville Police Officers.
“Even if Crutcher could establish that she was ‘detained,’ she still cannot establish a prima facie case of false imprisonment because her ‘detention’ was lawful, in that it was pursuant to her voluntary consent. Huntsville City Police officers approached Crutcher and Gordon. They asked Gordon to come to the office and allow them to search her. (Crutch-er depo., p. 47). Gordon said she wouldn’t allow them to search her. (Crutcher depo., pp. 47, 185). The police officers didn’t do anything to Gordon when she refused to let them search her. (Crutcher depo., p. 186). Crutcher observed this firsthand and she also heard the police officers tell Gordon that it was her choice whether to be searched or not. (Crutcher depo., p. 186). The police officers then asked Crutcher to go into the office for a search of her person. (Crutcher depo., p. 47). Gordon told the police officers not to search Crutcher. (Crutcher depo., p. 48). The police officers told Gordon that she couldn’t tell Crutcher what to do and that Crutcher had to tell the police officers on her own that she didn’t want to be searched. (Crutcher depo., p. 48). Crutcher still agreed to go with the officers to the office and to allow the officers to search her. (Crutcher depo., p. 49). Even though she witnessed Gordon’s refusal to be searched and realized that nothing happened to Gordon based on her refusal, and after hearing Huntsville Police officers state to Gordon that Crutcher could object to the search on her own, Crutcher never told any of the police officers that she did not want to be searched. (Crutcher depo., p. 115). Given that she agreed to be searched, and immediately left when she wanted to leave, the Court finds that Crutcher was not unlawfully detained. For there to be a false imprisonment, there must be some direct restraint of the person. See Sanders v. Shoe Show, Inc., 778 So.2d at 822-23.
“C. Erskine acted in good faith when she provided information to the Huntsville Police Department. Regardless, no actions of Wendy’s of North Alabama, Inc., or its agents or employees led to an unlawful detention of Crutcher.
“Erskine and Watkins told the police officers that Crutcher might have taken the money because she is one of the persons Erskine could remember being in the restaurant office. (Crutcher depo., p. 90). Erskine told the police that Crutcher had been in the office that day. (Crutcher depo., p. 131). Crutch-er had gone to the office that day and reached her arm into the office and put her hat on the TV in the office. (Crutcher depo., 131). Erskine told police that she suspected Crutcher may have taken the money, and that her suspicions were simply based upon Ers-kine’s knowledge that Crutcher had gone to the office. (Crutcher depo., pp. 130-132). There were no other statements made by any other Wendy’s employees which Crutcher claims were false. (Crutcher depo., p. 91).
“This Court finds that ‘it is well-settled that liability for false imprisonment, like liability for malicious prosecution, cannot be predicated merely on a person’s good faith act of giving information to a police officer tending to show that a crime has been committed or on a person’s good faith act of identifying one suspected of a crime, for such involvement in another’s detention or arrest is not regarded in the law as an instigation of or participation in the detention or arrest.’ Crown Central Petroleum Corp. v. Williams, 679 So.2d 651[, 654] (Ala.1996).
“II. Crutcher has not established a pri-ma facie case of slander.
“ ‘Slander to be actionable per se must impute an indictable offense involving infamy or moral turpitude.’ Lewis v. Ritch, 417 So.2d 210, 211 (Ala.Civ.App.1982). Words which impute larceny are slanderous per se.’ Id. at 211-212 .... Truth is an absolute defense to defamation. See Foley v. State Farm, Fire & Cas. Ins. Co., 491 So.2d 934 (Ala.1986); Liberty Loan Corp. v. Mizell, 410 So.2d 45 (Ala.1982).
“Crutcher cannot establish a prima facie case of slander because the statements she claims Erskine and perhaps Watkins made to the police officers, that is, that Gordon and Crutcher ‘were the only ones in the office they could remember,’ were true. (Crutcher depo., p. 43).
“The statements that Crutcher alleges that Erskine and Watkins made to the police — that Crutcher had been in the office — were not slanderous because they did not impute larceny, but rather stated the facts as Erskine and Watkins (and even Crutcher) knew them.
“The Court finds that ... any and all statements by Wendy’s of North Alabama, Inc. alleged by Crutcher to be slanderous were truthful, and finds that the defendant is therefore entitled to summary judgment on plaintiffs slander claim. Further, the Court finds that any statements by Wendy’s of North Alabama, Inc., were not false and malicious, and finds that the defendant is therefore entitled to summary judgment on plaintiffs slander claim. Further, the Court finds that Erskine acted outside the line and scope of her employment with Wendy’s of North Alabama, Inc., and finds that the defendant is therefore entitled to summary judgment on plaintiffs slander claim. Further, the Court finds that Erskine acted in good faith when she provided information to the Huntsville Police Department, and finds that the defendant is therefore entitled to summary judgment on plaintiffs slander claim. Finally, the Court finds that each of these separate and independent grounds is sufficient to find that Crutcher was not slandered and is sufficient to support a finding for the defendant on plaintiffs slander claim.
“III. Crutcher cannot establish a pri-ma facie case of invasion of privacy.
“The Court finds that the police officers used their own authority and own independent discretion in conducting the investigation and search, and that the police officers were not directed by Wendy’s of North Alabama, Inc. Crutch-er cannot establish a prima facie case of invasion of right to privacy against Wendy’s. Moreover, since Crutcher voluntarily consented to the search by the Huntsville Police officer, she cannot claim that her right to privacy was invaded by the search. (Crutcher depo., p. 49).”

(Emphasis original.)

Issues Presented For Review

Crutcher designates 18 issues in her “Statement of Issues Presented for Review” and then proceeds to argue each separately. She first asserts that the trial court did not use the appropriate “standard of review” when it granted the summary-judgment motion filed by Wendy’s. In support of this contention, she cites several decisions from this Court and the Court of Civil Appeals, which set out the appropriate standard to be used by a trial court considering a motion for a summary judgment. Crutcher does not, in the section of her brief relating to this contention, offer any specifics as to what supposedly deviant standard the trial court here used, or how its standard deviated from the proper standard. Instead, Crutcher’s argument regarding the proper standard to be used by a trial court when considering a summary-judgment motion appears to be the predicate for several of her other issues on appeal, most of which are premised on the idea that genuine issues of material fact existed as to the essential elements of her claims. Accordingly, we consider those other issues.

A. Wendy’s Liability for the Acts of its Employees

In its order, the trial court found that “Erskine was acting outside the line and scope of her employment when she called the police.” Crutcher asserts that a genuine issue of material fact exists as to whether Erskine was acting within the scope of her employment for Wendy’s at the time the events at issue in this case transpired. The record shows that Ers-kine’s counting of the money in the cash register was part of her job duties. Further, upon her “count down” of the money and her resulting belief that $50 was missing, Erskine attempted to locate the missing money, also as her duties required. Although Erskine stated in her deposition that, in an effort to avoid upsetting Newman, she and Watkins would repay the cash registers out of their own pockets in the event a register came up short, it was Erskine’s responsibility as the assistant shift manager, and the highest ranking manager present at the store at the time of the incident, to investigate the shortage.

“ ‘A corporation or employer will be liable for the torts of its employee committed while acting in the line and
scope of his employment even though the corporation or employer did not authorize or ratify such acts and even if it expressly forbade them. Old Southern Life Ins. Co. v. McConnell, 52 Ala.App. 589, [594,] 296 So.2d 183[, 186] (Ala.Civ.App.1974). If there is any evidence in the record tending to show directly, or by reasonable inference, that the tortious conduct of the employee was committed while performing duties assigned to him, then it becomes a question for the jury to determine whether he was acting from personal motive having no relationship to the business of the employer. Plaisance v. Yelder, 408 So.2d 136 (Ala.Civ.App.1981); United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685 (1953).’
“Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala.1986).”

USA Petroleum Corp. v. Hines, 770 So.2d 589, 591 (Ala.1999). In light of Erskine’s duties as assistant shift manager, we conclude that a genuine issue of material fact exists as to whether she was acting within the scope of her employment in telephoning the police. Because we conclude that Wendy’s could be liable as a result of Erskine’s actions, we must next consider whether the trial court properly entered a summary judgment for Wendy’s as to Crutcher’s claims of false imprisonment, slander, and invasion of privacy.

B. False Imprisonment

Crutcher contends that a genuine issue of material fact exists as to whether she was detained or searched in such a manner as to violate Ala.Code 1975, § 6-5-170, Alabama’s false-imprisonment statute. Section 6-5-170 provides: “False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty.” In Crown Central Petroleum Corp. v. Williams, 679 So.2d 651, 658 (Ala.1996), citing Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993), this Court held:

“For there to be a false imprisonment, there must be some direct restraint of the person; however, it is not necessary that there be confinement in a jail or a prison. Any exercise of force, or the express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment.”

See also Sanders v. Shoe Show, Inc., 778 So.2d 820, 822 (Ala.Civ.App.2000). The Williams Court also stated that “[a]n employer may be held legally liable for a false imprisonment committed by one of its employees while acting within the line and scope of his employment,” 679 So.2d at 653-54, and that “persons other than those who actually effect an arrest or imprisonment may also be so involved with or related to the act or proceeding as instigators or participants therein as to be liable for false imprisonment.” 679 So.2d at 654.

Our review of the record indicates that a genuine issue of material fact exists as to whether Crutcher was unlawfully detained, arising from her testimony that she was “told” by the officers to accompany them for the search and that she believed she was required to obey them because of their authority as police officers. However, under Alabama law an employer will not be held liable for false imprisonment for the acts of its employees in providing information to the police, which causes someone to be detained, if the employee’s communications to the police were made in good faith. Williams, supra. In Williams, a mother, on behalf of her minor son, sued the owner of a convenience store alleging that an employee of the store had caused her son to be falsely imprisoned by the Birmingham Police after the employee told the police that the son had accompanied another man to the store, and that that other man had “crouched down” and stuck the barrel a handgun “up into the store’s security drawer” and robbed her. 679 So.2d at 653. Following an adverse jury verdict, the owner of the convenience store appealed, arguing that its employee had merely reported the commission of a crime to the police and identified the plaintiffs son as being in the company of the armed robber. The plaintiff argued, however, that it could be inferred from the evidence that the defendant’s employee stole the money and then concocted the robbery claim to conceal her own theft. As the trial court in the present case aptly noted in its order, the Williams Court, reversing the jury verdict, stated:

“[I]t is well settled that liability for false imprisonment, like liability for malicious prosecution, cannot be predicated merely on a person’s good faith act of giving information to a police officer tending to show that a crime has been committed or on a person’s good faith act of identifying one suspected of a crime, for such involvement in another’s detention or arrest is not regarded in the law as an instigation of or participation in the detention or arrest.”

679 So.2d at 654. The Williams Court also stated “a person does not instigate an arrest by merely providing information that results in another’s arrest, unless the person acts in bad faith (i.e., lacks any reasonable basis upon which to accuse another of a crime).” 679 So.2d at 655. The Court went on to hold that the only evidence cited to support the plaintiffs contention that the robbery claim had been concocted was

“1) that the plaintiffs son denied that any robbery had taken place; 2) that the store was locked and that [the employee] reported to the police that the [robber] had threatened her with a gun through the security drawer; 3) that [the employee] failed to testify during the juvenile proceedings; 4) that the store’s surveillance camera was for some unknown reason not working on the night of the incident; and 5) that [the employee] told the plaintiff that the plaintiffs son had not done anything. Even looking at this evidence in the light most favorable to plaintiff, as we are required to do, we fail to see how the jury could have reasonably inferred from, it, that [the employee] stole the money and then made up the whole story concerning a robbery.”

679 So.2d at 655-56 (emphasis added). Thus, in Williams there was no evidence indicating that the employee acted in bad faith when she telephoned the police reporting that a robbery had been committed; rather, the evidence supported only the inference that she had acted in good faith.

In this case, Erskine reported to the police that $50 was missing from one of the cash registers at the restaurant. Erskine did not know exactly what the police would do upon their arrival at the restaurant. Initially, she only wanted them to “make a police report.” However, upon learning that the police could conduct a search of the individual employees, if they consented, she did ask the police to propose such a search to the employees. Specifically, Erskine stated:

“Q: What happened after the police came in the store? Who did they talk to first?
“A: Me.
“Q: What did you tell them?
“A: I told them that I had $50 missing, and I’ve counted all of my registers, and I can’t find it, and I don’t know who has it, what can they do about it, you know, what kind of action can I take. They said, well—
“Q: You reported to them that you’re missing $50?
“A: Yes.
“Q: And you asked them what actions you can take?
“A: Right, can they take — I’ve called the police because I’m missing money. The operator told me they could come out for that. I asked her what they could do. She said that they could take a search of everybody in the store, so I said send them.
“Q: Who told you that the police could search everybody in the store?
“A: They did and the operator did.
“I said, what can they do to find this money. They said that they have to have the approval, they can’t just come and search everybody. When they got there, they told everybody what the situation was, which they already knew, and they said, we’re going to ask if we can search everybody. If you say no — you have the right to say no. If you say no, we can’t search you.
“Q: The operator told you that the police could search everybody in the store?
“A: Uh-huh.
“Q: When the police arrived, did either officer tell you that they could search everybody in the store?
“A: If they allow them to, yes.
“Q: Which officer told you that?
“A: I don’t know. I don’t even know the officer’s name....
“Q: Did you tell the officers that you wanted them to search everybody in the store and that you had already thought about that?
“A: Yes.
“Q: Did you tell the police officers that you wanted them to search everybody in the store?
“A: Yes.
“Q: When you told the police officer that you wanted everybody in the store searched, was that such — do you know whether or not Davida heard you tell the police officer that?
“A: I don’t think so. It, was more like they said that’s what they can do.
“I said, well, can you do it?
“Q: The police said they could search everybody in the store?
“A: If they allow them to search them.
“Q: You told the police that you wanted them to search everybody in the store?
“A: I said I wanted them to search everybody in the store.
“Q: You search everybody, you told them to do that; is that correct?
“A: I asked them to do it. I didn’t tell them anything.
“Q: And you — and if you earlier said that you told the police to search everybody in the store, you want to change your testimony?
“A: I asked them to. I didn’t tell them to.”

Our careful review of the entire record fails to reveal any evidence of bad faith on the part of Erskine; the record supports only the inference that she acted in good faith when she telephoned the police regarding the missing money, when she accepted their offer to conduct consensual searches, and when she imparted information to them on the scene concerning who had had access to the drive-through-window cash register and who she understood had entered the office. Accordingly, we hold that the trial court did not err by entering a summary judgment in favor of Wendy’s as to Crutcher’s false-imprisonment claim.

C. Slander

Crutcher also asserts that the trial court erred in entering a summary judgment for Wendy’s on her slander claim. Specifically, she argues that a genuine issue of material fact exists as to whether Erskine’s accusations were made in good faith. Crutcher relies on Liberty National Insurance Co. v. Daugherty, 840 So.2d 152 (Ala.2002), for the proposition that slander involves a false and malicious communication to a third person involving infamy or moral turpitude. Crutcher also states that “[t]ruth or good faith are defenses [to slander].”

Good faith is a defense to defamation only in the limited circumstances where a defamatory statement is made pursuant to a qualified privilege. Atkins Ford Sales, Inc. v. Royster, 560 So.2d 197 (Ala.1990). See also Kirby v. Williamson Oil Co., 510 So.2d 176 (Ala.1987). The plaintiff bears the burden of proving defamation with actual malice to prevail against a defense of qualified privilege, and the defendant does not bear the burden of proving good faith to establish such a defense. Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475 (Ala.2000). In the instant case, however, no contention has been made that any alleged statement by an employee of Wendy’s was made pursuant to a qualified privilege. Therefore, the defense of good faith has no application here. Nonetheless, in all defamation actions, “[t]ruth is an absolute defense to defamation.” Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934, 937 (Ala.1986). See also Liberty Loan Corp. v. Mizell, 410 So.2d 45 (Ala.1982).

In actions for libel or slander, the defendant ultimately bears the burden of showing that the defamatory words are true. Brothers v. Brothers, 208 Ala. 258, 94 So. 175 (1922). See also Starks v. Comer, 190 Ala. 245, 67 So. 440 (1914). Although Wendy’s would bear the burden of showing that any allegedly slanderous statements by any of its employees regarding Crutcher were true, in order to vindicate the defense of truth, Crutcher bore the initial burden of showing a false communication. “To establish a prima facie case of defamation, the plaintiff must show that the defendant published a false and defamatory statement concerning the plaintiff to a third person.” Atkins Ford Sales, 560 So.2d at 200, citing Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085 (Ala.1988).

Crutcher makes no specific argument in her briefs to this Court that any statement by an employee of Wendy’s pertaining to her possible involvement with the missing money was untrue. Rather, Crutcher merely references the speculative beliefs of others concerning the possible whereabouts of the money, which are never shown to have been validated, and argues that Erskine could not possibly have entertained the contrary belief — that the money had probably been stolen — in good faith. Any mere beliefs of others, the foundations for which are not shown, would not detract from the truth of what Erskine believed: that $50 was missing and that she, Gordon, and Crutcher were the only employees who had had access to the areas of the restaurant where the funds from which the shortage was discovered were located.

No genuine issue of fact has been shown to exist regarding whether the statements Crutcher relies on as defamatory — Ers-kine’s expressions of her beliefs to the police and her identification of her, Gordon, and Crutcher as persons having access to the missing money — were in fact true, as far as they went. Accordingly, we conclude that the trial court did not err in entering a summary judgment for Wendy’s on the slander claim.

D. Invasion of Privacy

Crutcher further asserts that a genuine issue of material fact exists as to whether she consented to the search conducted by the Huntsville police, thereby precluding a summary judgment as to her invasion-of-privacy claim. As we noted earlier in the opinion, we have determined that an issue of fact exists as to whether Crutcher consented to the search conducted by the Huntsville police. However, we must also consider whether Wendy’s is otherwise entitled to a judgment as a matter of law on this claim. “ ‘This Court defines the tort of invasion of privacy as the intentional wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.’ ” Rosen v. Montgomery Surgical Ctr., 825 So.2d 735, 737 (Ala.2001) (emphasis added)(quoting Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1178 (Ala.1995) (citing Nipper v. Variety Wholesalers, Inc., 638 So.2d 778 (Ala.1994), and other cases)). In Nipper, an employer at a discount store had received complaints from other employees regarding the plaintiff store manager’s conduct while at work. Specifically, the employer had received complaints that the plaintiff possessed a handgun at work, took drugs, had birthday parties in the stock room, and had her boyfriend in the store on many occasions, all of which activities were in violation of the employer’s disciplinary policy. In addition, there had been a $30,000 loss of inventory at the store. In response to those complaints, the employer had another employee “investigate” them by interviewing other employees, including the plaintiff. The plaintiff admitted to having carried a handgun to work, admitted that her boyfriend often visited the store, and admitted that she had taken prescription medication during working hours that made her sleepy. However, she denied attending parties held at the store. Soon after the interview, the plaintiff was terminated from her position. Subsequently, she sued the employer, asserting claims of the tort of outrage, invasion of privacy, and slander. The trial court entered a summary judgment in favor of the employer on all claims; the plaintiff appealed. Holding that the plaintiff did not produce sufficient evidence to sustain her invasion-of-privacy claim, this Court stated:

“[The employer] had the right to reasonably investigate complaints made about the store and against [the plaintiff] in relation to [the plaintiffs] status as manager of the store. It was not unreasonable for [the employer] to be concerned about complaints such as it received, particularly in light of the $30,000 worth of inventory that had been lost from the store. This alleged intrusion into [the plaintiffs] private concerns falls short of that required to constitute the invasion of privacy tort.”

638 So.2d at 781.

In the instant case, we conclude that the analogy between the elements of Crutch-er’s false-imprisonment claim, as analyzed in Part B of this opinion, and the elements of her invasion-of-privacy claim, calls for similar resolution in both instances. AlS we noted in discussing the false-imprisonment claim, the evidence does not contradict Wendy’s position that Erskine acted in good faith when she contacted the Huntsville police to investigate the missing $50. Further, the evidence supports only the conclusion that Erskine’s act of launching and continuing the investigation into the missing $50 was reasonable and without malice toward Crutcher. There is no evidence suggesting that Erskine acted in bad faith.

Our conclusion in this regard is strengthened by the fact that Erskine did not personally attempt to investigate the situation after initially looking for the money on the premises and asking the employees for information, but rather telephoned the police and asked them to investigate the matter. At all times she provided them with information not successfully impugned by Crutcher as untrue. We do not believe that Crutcher’s inclination, asserted in her deposition, to comply with requests by police officers because of the deference she accorded such authority figures should render Erskine’s involvement in the process “wrongful,” so as to constitute an invasion of Crutcher’s privacy. Accordingly, the trial court did not err by entering a summary judgment in favor of Wendy’s as to Crutcher’s invasion-of-privacy claim.

Crutcher’s remaining arguments present various assertions about factual contentions that are neither supported by citations to the record nor specifically relevant to her legal claims. Moreover, those arguments either are unsupported by proper citation to legal authority, violate Rule 28(a), Ala. R.App. P., or were not argued to the trial court. “ ‘Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all of the legal research for an appellant.’ ” McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992)(quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)).

“Appellants who fail to comply with [Ala.]R.App.P. 28(a) place themselves in a perilous position. While we attempt to avoid dismissing appeals or affirming judgments on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant’s claim when the appellant fails to articulate that claim and presents no authorities in support of that claim. Under appropriate circumstances we will refuse to consider the appeal.”

Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985). “Failure to cite any authority supporting [the appellant’s] arguments precludes this court from considering the issues presented.” Sanders v. Mullins, 579 So.2d 1349, 1350 (Ala.Civ.App.1990). “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). See also Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914, 919 (Ala.2002); TFT, Inc. v. Warning Systems, Inc., 751 So.2d 1238, 1243 (Ala.1999). Accordingly, we will not consider these arguments.

Our review in this case has necessarily been limited to the narrow process of determining whether the contents of the record reveal undisputed facts, or the existence of genuine issues of material fact, favorable to Crutcher as to the existence of all of the elements of one or more of her asserted causes of action. As explained above, our review has revealed none. The constraints of objective legal analysis do not blind us to the fact, however, that Davida Crutcher, whom the record essentially exonerates with respect to the suspected misappropriation of $50, was subject to treatment naturally traumatic to a 16-year-old. Accordingly, our opinion in this case, based solely on the law, does not represent approval of how Davida Crutch-er was treated nor are we insensitive to her plight.

For the reasons already explained, the trial court’s summary judgment in favor of Wendy’s as to Crutcher’s false-imprisonment, slander, and invasion-of-privaey claims is affirmed.

AFFIRMED.

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

      . In her deposition testimony, Erskine refers to the procedure of counting the money in the cash registers as a "count down,” which she said occurs at various times throughout the operating hours of the restaurant. A "count down” shows how much business a particular cash register has done since the preceding "count down.”

      . Erskine stated in her deposition testimony that over-rings are deducted from the amount of cash in the drawer. However, she did not specify what an over-ring actually is.

      . Neither Robinson nor Newman were in the restaurant on July 25, 1999.

      . It is unclear from the record whether the pronoun "she” was a reference to Erskine or Robinson.

      . See note 4.

      . In accordance with company policy, the door to the store was locked, and customers made their purchases using the security drawer.

      . Crutcher argues in her brief, and so testified on deposition, that she never actually entered the office on the day in question, because she just reached into the office to put her hat in there. She also acknowledged on her deposition as follows:
      "Q. Do you have any personal knowledge of whether or not Tiffany Erskine actually thought she had seen you in the office that day, the date in question?
      "A. Could you rephrase it?
      "Q. Sure. Do you yourself know, have any personal knowledge of whether or not Tiffany actually thought she had seen you in the office on the date in question?
      "A. Probably because she told me to put my hat in there. But other than that, no.”