author: BOLIN, Justice.

text:
    M. Mallory MANTIPLY v. Mary Elizabeth MANTIPLY. Mary Elizabeth Mantiply v. M. Mallory Mantiply.
    1031916 and 1040006.
    Supreme Court of Alabama.
    May 12, 2006.
    Rehearing Denied Aug. 18, 2006.

      David P. Broome, Mobile; and David E. Hudgens of Hudgens & Eiland, LLP, Daphne, for appellant/cross-appellee M. Mallory Mantiply.
    Peter F. Burns of Burns, Cunningham, Mackey & Fillingim, P.C., Mobile, for ap-pellee/cross-appellant Mary Elizabeth Mantiply.
   BOLIN, Justice.

M. Mallory Mantiply sued his ex-wife Mary Elizabeth Mantiply on July 7, 2003, seeking the repayment of amounts he alleges he lent her. On July 28, 2003, and August 19, 2003, Mallory filed notices of lis pendens as to certain real property owned by Mary Elizabeth in order to secure the debt Mallory alleged in his complaint he was owed by Mary Elizabeth. Mary Elizabeth answered the complaint on August 25, 2003, denying that she was indebted to Mallory. Mallory amended his complaint on December 13, 2003, reasserting his claim seeking the repayment of the alleged loans and also asserting a claim of fraud against Mary Elizabeth in the procurement of the alleged loans. Mary Elizabeth answered the amended complaint on January 5, 2004, denying the allegations contained in that complaint and counterclaimed against Mallory alleging conversion of personal property, conversion of business property, and money had and received, and seeking an accounting.

On March 22, 2004, Mallory amended his complaint a second time alleging, among others, claims for money lent and of unjust enrichment, equitable mortgage, fraud, and promissory fraud and seeking an accounting, or, in the alternative, compensation under a theory of quantum meruit for the value of certain legal services rendered. Mary Elizabeth answered the second amended complaint on April 8, 2004, denying the allegations contained in the complaint, reasserting her counterclaim, and asserting certain affirmative defenses.

On May 26, 2004, Mary Elizabeth moved the trial court for a summary judgment as to all of the claims asserted against her by Mallory. On July 20, 2004, Mary Elizabeth moved the trial court for a summary judgment on the claims asserted by her in the counterclaim and removal of record of the lis pendens notices filed by Mallory. On July 22, 2004, Mallory responded to the first motion for summary judgment filed by Mary Elizabeth. On August 5, 2004, Mallory moved the trial court to strike certain language from Mary Elizabeth’s answer to the second amended complaint, her May 26, 2004, motion for a summary judgment, and her affidavit filed in support of that motion.

On August 16, 2004, the trial court, among other things, granted Mallory’s motion to strike in part; entered a summary judgment in favor of Mary Elizabeth on each claim asserted against her by Mallory; determined that Mallory had no equitable mortgage in any real property owned by Mary Elizabeth; declared the lis pen-dens notices filed by Mallory invalid; and placed the claims asserted by Mary Elizabeth in the counterclaim on its administrative docket. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Mallory appeals and Mary Elizabeth cross-appeals from the judgment entered by the trial court, arguing that the trial court erred in granting Mallory’s motion to strike.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating an issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Facts

The parties, both attorneys, were married in April 1981; they were divorced on April 8, 1998. The trial court awarded custody of the parties’ minor daughter to Mary Elizabeth and ordered Mallory, among other things, to pay $1,200 per month in child support. Following the parties’ divorce, Mallory left his position as a partner in a prominent Alabama law firm and moved to Virginia in December 1998. Mallory returned to Alabama in December 1999 to attend his daughter’s birthday party. Mallory testified that at the time he returned to Alabama he “wanted to put [his] family back together” and “hoped” to move in with Mary Elizabeth and his daughter. Mary Elizabeth owned a waterfront residence in Elberta (“the Neumann Drive property”) and a waterfront residence in Montrose; Mary Elizabeth and her daughter lived at various times in both residences. Mallory began living with Mary Elizabeth and his daughter upon his return to Alabama and continued to reside with them until April 2003. Mallory and Mary Elizabeth did not engage in a romantic or sexual relationship after Mallory returned to Alabama.

The circumstances made the basis of this action arise from (1) payments totaling $250,723.98 that Mallory alleges he paid directly to Mary Elizabeth or on Mary Elizabeth’s behalf in satisfaction of certain of her obligations, which he says were loans that Mary Elizabeth was obligated to repay, and (2) Mallory’s practicing law at Mantiply & Associates, Mary Elizabeth’s law office. We set out the factual allegations arising out of the alleged loans and practice of law separately.

I. The Alleged Loans to Mary Elizabeth

Mallory paid Mary Elizabeth $60,000 between January 2000 and November 2000. Mary Elizabeth testified in her affidavit that when Mallory returned to Alabama in December 1999 she did not want him to move in with her and the parties’ daughter but that he offered to stay in a guest bedroom and to help with the living expenses. Mary Elizabeth testified that she allowed Mallory to move in with her on the condition that he pay what she considered to be his share of the household expenses. She stated that she and Mallory had an oral contract, terminable at will by either party, under the terms of which she provided Mallory with room, board, and incidentals and she charged him as she deemed appropriate.

Mary Elizabeth testified that the payments Mallory made to her during that period were for the living expenses he incurred while he resided with her and that Mallory never referred to the payments made to her as loans she was obligated to repay. She stated that Mallory never wrote the word “loan” on any of the checks he gave her or otherwise presented her with a promissory note or other writing indicating that the payments he made to her were loans. Mary Elizabeth further testified that Mallory related to her on a number of occasions during the 40-month period in which they resided together that he took great pride in paying his share of the expenses.

Mallory disputes Mary Elizabeth’s contentions regarding the nature of the payments made to her. Mallory testified that on the evening he arrived back in Alabama Mary Elizabeth invited him to stay at her residence and that he accepted. Mallory testified that he never entered into an agreement with Mary Elizabeth to pay any living expenses. He stated that he inquired of Mary Elizabeth on several occasions as to his status and that she would tell him that he was a “guest.” Mallory testified that the $60,000 he paid Mary Elizabeth between January 2000 and November 2000 represented loans and that Mary Elizabeth acknowledged that those payments were loans.

II. The Neumann Drive Property

On March 12, 2001, Mallory transferred to Mary Elizabeth one-half of his Morgan Keegan brokerage account, an amount equal to $103,996.80, which consisted of stock and cash; assumed the monthly mortgage payments of $3,993.77 on the Neumann Drive property; and began paying for the insurance and certain utilities for the Neumann Drive property. Mallory contends that his expenditures relating to the Neumann Drive property were loans to Mary Elizabeth that she agreed to repay. He further contends that Mary Elizabeth agreed to secure repayment of those loans, as well as the $60,000 loaned to her between January 2000 and November 2000, with an interest in the Neumann Drive property payable to him should the property ever be sold.

Mary Elizabeth testified that she had wanted to sell the Neumann Drive property but had been unable to do so. She stated that Mallory had not wanted her to sell the Neumann Drive property and that the property was important to him because he wanted their daughter to inherit the property. Therefore, Mary Elizabeth stated that she proposed to Mallory that she would transfer a one-half undivided interest in the Neumann Drive property to him in exchange for his transferring to her one-half of the value of his brokerage account; his assuming the expenses associated with the property, including the mortgage payments of $3,993.77; both parties’ agreeing to change the trustee of a trust established for the parties’ daughter; and both parties’ agreeing to execute irrevocable wills that each included a $500,000 bequest to the other.

Although Mallory transferred $103,996.80 to Mary Elizabeth on March 12, 2001, and assumed the mortgage payments of $3,993.77, as well as other expenses associated with the Neumann Drive property, Mary Elizabeth testified that Mallory did not fully comply with the terms of the agreement and that he eventually repudiated the agreement because he failed to change the trustee on their daughter’s trust and failed to execute an irrevocable will in her favor. Mary Elizabeth testified that when Mallory repudiated the agreement she informed him that she was going to keep the $103,996.80 as a contribution toward his living expenses. Additionally, Mary Elizabeth testified that the mortgage payments of $3,993.77 made by Mallory on the Neumann Drive property were also “part of his payment towards expenses.”

Mallory testified that Mary Elizabeth wanted to borrow more money from him in March 2001, but that he was unwilling to lend her additional money without an understanding about how he would be repaid for the money that he had already lent her and for any future moneys he might lend her. Mallory testified in his deposition as follows:

“Q. What were the terms of this agreement you say you made [with Mary Elizabeth] in March 2001?
“A. At that point in March of 2001, I had paid her a substantial sum of money since my coming back down here, beginning in January of 2000, starting with $25,000. She owed me a fair amount of money. She was in two pieces of property. She needed to sell one or the other, if not both. I think she has them both up for sale right now. But in any event, in March of 2001 she put to me the idea that if I would basically take over the mortgage that she had on the Neumann Drive property, which she told me at that time was a $384,000 balance, and if I would transfer to her half of my Morgan Keegan account and if I would pay the mortgage payments on Neu-mann Drive, which were $3,993 and some cents per month, that I would receive a half interest in that property— which I didn’t want sold. But if it ever sold, my half interest would be paid to me.”

Mallory testified that he told Mary Elizabeth that he would accept her offer if she would cease her attempts to sell the Neu-mann Drive property. Mallory stated that Mary Elizabeth agreed to take the Neu-mann Drive property off the market.

When Mary Elizabeth was questioned as to whether she took the Neumann Drive property off the market shortly after Mallory transferred the money from his brokerage account to her, Mary Elizabeth testified that she did not take the Neumann Drive property off the market. However, Mary Elizabeth was confronted with a facsimile — which was signed by her and requested that the Neumann Drive property be taken off the market — -that was sent to her real-estate agent two days after Mallory transferred the money from his brokerage account. Mary Elizabeth initially testified that she had never seen the facsimile; she later stated that the facsimile had been drafted by an employee of hers.

Mallory testified that he pressed Mary Elizabeth for a writing memorializing their agreement relating to the Neumann Drive property; however, he stated that he did not sign the written agreement she eventually presented to him because it contained additional terms — the execution of the wills in favor of each other and the changing of the trustee of their daughter’s trust — to which he says he had not agreed. Mallory testified that he performed his obligations under the agreement by transferring the money from his brokerage account to Mary Elizabeth; assuming the mortgage and utility payments on the Neumann Drive property; performing maintenance work on the property, including cutting the grass; and exercising forbearance in the collections of the loans he had made to Mary Elizabeth from January 2000 to November 2000. He stated that Mary Elizabeth eventually sold the Neu-mann Drive property for over $1.2 million and that she has failed to pay him for his interest in the property pursuant to their agreement.

III. Mallory’s Practice of Law at Mantiply & Associates

When Mallory returned to Alabama in December 1999, he was unemployed. Mallory worked at Mary Elizabeth’s law office of Mantiply & Associates during January 2000, because Mary Elizabeth had asked him to help her with some legal tasks. He stated that he did not necessarily want to work with Mary Elizabeth at the time and that he did not ask to be paid. In the meantime, Mary Elizabeth had encouraged attorney John Sharbrough to hire Mallory, which Sharbrough did in February 2000.

Mallory worked for Sharbrough until that relationship ended in October 2001 because of a dispute between Mallory and Sharbrough regarding compensation and an attorney fee on a legal matter. When Mallory left Sharbrough’s employment he took a number of case files with him, which, according to Sharbrough, Mallory was not authorized to do.

Mallory began practicing law at Manti-ply & Associates in November 2001. Mary Elizabeth’s practice had a net loss of approximately $30,719 from January 2000 through November 2001. However, from the time Mallory began practicing law at Mantiply & Associates in November 2001 until he stopped working at Mantiply & Associates in April 2003, the practice had a net income of approximately $164,544. Mallory alleges that despite turning Mary Elizabeth’s law practice into a profitable one, he was paid only $10,300 by Mary Elizabeth during the period he worked at Mantiply & Associates.

A. The Employment Arrangement

Mary Elizabeth testified that she did not want Mallory practicing law with her at Mantiply & Associates. However, she said that because Mallory had no place else to work she allowed him to work at Mantiply & Associates as an employee at will. Mary Elizabeth stated that she made it clear to Mallory that he was an employee at will, that he did not have any interest in Mantiply & Associates, and that he did not have the authority to write checks on behalf of Mantiply & Associates. She testified that she told Mallory that if he chose to work at Mantiply & Associates she would be in charge of the firm’s money and that she would pay him what she “thought was fair.” Mary Elizabeth testified that Mallory agreed to those terms.

Mallory testified that Mary Elizabeth’s law practice at Mantiply & Associates was “dead” when he started practicing law there in November 2001. As mentioned above, Mallory presented evidence indicating that the practice had lost approximately $30,719 from January 2000 through November 2001. Mallory testified that he did not want to practice law with Mary Elizabeth because “she does not practice” and that during the time he worked at Manti-ply & Associates he was the “only one practicing law.”

Mallory testified that Mary Elizabeth wanted him to come to work at Mantiply & Associates and that she told him certain things that induced him to forgo looking for other employment and to work at Man-tiply & Associates. Mallory stated that Mary Elizabeth told him she had $100,000 to use to finance the law practice and that she had some matters pending, including several cases that had the potential to generate substantial fees. Mallory testified in his deposition as follows:

“She told me to come on up there and work. She told me she had $100,000 in the bank. She told me she had things going on. She told me we could make it. She told me to bring the eases up there and we would go from there. I heard those things. I went up there, I sat down, I went to work.”

Mallory stated that he and Mary Elizabeth did not have a partnership agreement and that they had no written agreement as to compensation. He described the agreement they did have as follows:

“Q. And what I am asking you for is to tell me what you understood your agreement was in connection with you going to work at [Mantiply & Associates] in November 2001.
“A. Well, the agreement was that I would come up there and sit down and go to work for the clients and for clients to come and that the money would be run through her business and that I would be treated basically fairly.”

Mallory stated that he did not have the authority to sign checks for Mantiply & Associates and that he had no control over what was being paid out by Mantiply & Associates. He stated that the only control he had was “what was coming into [the law firm] based on how hard [he] was working and the checks [he] was paying into it.” Mallory testified that he considered himself self-employed while he worked at Mantiply & Associates.

B. The Bank Accounts

Mary Elizabeth had maintained an operating account at Compass Bank for her law practice in the name of “Mantiply & Associates” since 1991. Mary Elizabeth contends that on March 25, 2003, while employed at Mantiply & Associates, Mallory covertly opened a bank account at Am-South Bank, also in the name of “Mantiply & Associates.” Mallory’s name was the only name on that account. Mary Elizabeth testified that immediately before and after leaving his employment at Mantiply & Associates, Mallory surreptitiously deposited checks made payable to Mantiply & Associates in the account bearing the same name at AmSouth Bank. She stated that Mallory was not authorized to open an account in the name of “Mantiply & Associates.”

On April 1, 2003, Mallory entered the offices of Mantiply & Associates and took files that Mary Elizabeth testified belonged to Mantiply & Associates. Mallory established his own law practice representing the clients whose files Mary Elizabeth stated he had taken from her office without authorization. Mary Elizabeth contends that she requested Mallory give her an accounting of the fees that he had recovered from representing those clients and that he reimburse Mantiply & Associates for the costs it had incurred in representing those clients before Mallory took the files, but that Mallory has refused to do so.

Mallory testified that Mary Elizabeth informed him in March 2003 that she was getting out of the practice of law and that he should “buy her out.” Mallory stated that he and Mary Elizabeth began discussing how “to wind things up between us.” Additionally, Mallory testified that on March 20, 2003, Mary Elizabeth had refused to pay his secretary with money he had provided her for that purpose and that he was faced with having to pay that overhead expense twice. Mallory stated that at that point he opened the bank account at AmSouth Bank in the name of “Mantiply & Associates.” He thought at the time that he would be continuing to practice law at the same location using the same telephone numbers and advertising and that Mary Elizabeth would no longer be practicing law.

Mallory testified that on April 1, 2003, he delivered a handwritten letter to Mary Elizabeth offering to have a third party settle the issues between them. He stated that he telephoned Mary Elizabeth later that day to see if she was interested in settling the issues between them and that she told him in that conversation to take his files and “get out” of the office by noon or she was going to change the locks. Mallory stated that he took his files and left the premises. He further testified that he purchased equipment and rented office space and continued to practice law. Mallory stated that he contacted AmSouth Bank and had the name changed on his account from “Mantiply & Associates” to “M. Mallory Mantiply.” Mallory testified that he deposited settlement proceeds into the AmSouth Bank account from cases that he handled on behalf of his clients.

C. Diverted Clients

1. The Fee Agreements

Mary Elizabeth testified that during the course of her law practice she had her clients enter into a fee agreement that specifically identified “Mantiply & Associates” as the attorney employed to represent the client. She stated that Mallory was expected to use this fee agreement while he was working at Mantiply & Associates. However, on a number of occasions Mallory used a fee agreement he had generated, which identified “M. Mallory Mantiply” as the attorney being employed by the client pursuant to the agreement. Mary Elizabeth testified that Mallory did not request permission nor was he authorized to contract with a client using a fee agreement that identified him, rather than Mantiply & Associates, as the attorney being employed.

Mallory testified that when he went to work for Mantiply & Associates, Mary Elizabeth did not have a fee agreement. He stated that he generated a fee agreement for both “Mantiply & Associates” and “M. Mallory Mantiply” and that he would use “whichever [fee agreement] came up first.” Nevertheless, Mallory testified that regardless of which fee agreement he used he would turn over to Mary Elizabeth the proceeds generated from the work he did on the clients’ behalf.

2. The Telephone Book Advertisement

Mallory had approached Mary Elizabeth in July 2002 about purchasing an advertisement in the “Best Talk” telephone book. Mary Elizabeth agreed to purchase an advertisement, and Mallory began putting an advertisement together for Manti-ply & Associates. The advertisement that appeared in the Best Talk telephone book contained pictures of Mary Elizabeth and Mallory above the name “Mantiply & Associates.” Mary Elizabeth, on behalf of Mantiply & Associates, entered into the advertising contract with the company that publishes the book. The cost of the advertisement was $7,344, payable in four installments. Mary Elizabeth testified that she paid the first three installments of the contract; however, she contends that Mallory contacted the company that publishes the telephone book, made the fourth installment payment, and then arranged to have the telephone number referenced in the Best Talk telephone book redirected from Mantiply & Associates to his new law office.

Mallory testified that after he left Man-tiply & Associates he contacted the publisher of the Best Talk telephone book, who informed him that the bill for the advertisement and telephone-number listing was outstanding. He stated that he was told if he paid the bill he could have the telephone-number listing. Mallory testified that he paid the outstanding bill and had the telephone number in the Best Talk telephone book redirected. He stated that he thought this was fair because the advertisement was his idea; his name and picture were on the advertisement; and Mary Elizabeth still had her original telephone number, which appeared in an advertisement in the Real Yellow Pages telephone book.

Analysis

I. Claims Arising Out of the Alleged Loans

A. Moneys Owed

Mallory argues that the trial court erred in entering a summary judgment in favor of Mary Elizabeth on his claim alleging that Mary Elizabeth owed him $250,-723.98 and that she has failed to repay him. This Court has stated:

“A plaintiff establishes a prima facie case in an action for money due on [an] open account by presenting evidence that money was delivered to the defendant, that it was a loan, and that it has not been repaid. 58 C.J.S. Money Lent § 7 (1948). ‘Ordinarily, an unexplained payment of money will be presumed to be made in payment of debt, or as a loan, rather than as a gift.’ Bowline v. Cox, 248 Ala. 55, 26 So.2d 574 (1946). This presumption arises in relationships between parties in which the payor naturally places confidence in the payee that the money will be repaid. Furthermore, we recognize the general rule that if no time is stipulated, a loan is ‘presently payable.’ Lindsey v. Hamlet, 235 Ala. 335, 179 So. 234 (1938).”

Livingston v. Tapscott, 585 So.2d 839, 841 (Ala.1991).

Mary Elizabeth argues that Mallory’s affidavit presented in opposition to her summary-judgment motion contradicts his earlier sworn deposition testimony, in which she says Mallory admitted that the money he paid her was “going toward his obligation to pay expenses” and, therefore, was ineffective in creating a genuine issue of fact as to whether the money Mallory paid her was a loan. This argument is without merit.

This Court has stated:

“ ‘[A] party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment.’ Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992), citing Doe v. Swift, 570 So.2d 1209, 1214 (Ala.1990). ‘ “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” ’ Id., quoting Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala.1987). However, when a party submits a subsequent affidavit merely to clarify his or her answers to ambiguous questions asked by counsel during a deposition or other prior sworn proceeding or to supply information not necessarily sought by questions asked at the deposition or other prior sworn proceeding, the trial court should consider the subsequent affidavit. See, e.g., Rickard v. Shoals Distrib., Inc., 645 So.2d 1378, 1382-83 (Ala.1994); and Tittle v. Alabama Power Co., 570 So.2d 601, 606-07 (Ala.1990).”

Wilson v. Teng, 786 So.2d 485, 497 (Ala.2000).

Mary Elizabeth relies on the following deposition testimony by Mallory to support her contention that Mallory admitted that the payments he made to her were for expenses and that they were not loans:

“Q. And you never said that you were paying your share of the expenses? You never said that or anything like that?
“A [Mallory], I have said that I feel like I have paid my share of the expenses.
“Q. You’re talking about — when you say you feel like you have paid your share of the expenses, you’re talking about the money that you contend is loan?
“A. I’m talking about — yeah, yeah, it’s kind of mixed up together.
“Q. Well, my question is: Do you owe her anything for expenses or were you just a guest living there for free for 40 months or longer?
“A. I don’t know about your number on the months. I’m uncomfortable with the idea of the guest status. I believe in paying my way.
“Q. And were you paying your way?
“A. Yes, sir.
“Q. All right. And it wasn’t a loan, you were paying your way, weren’t you?
“A. It was all bottled up together.”

Mary Elizabeth relies on the above-quoted excerpts from Mallory’s deposition testimony to argue that he admitted that the moneys he paid to her were for living expenses and that, therefore, his subsequent affidavit testimony, in which he states that the moneys paid to her were loans, is contradictory and cannot be considered for summary-judgment purposes. We initially note that Mary Elizabeth does not delineate that portion of Mallory’s affidavit that supposedly contradicts the above-quoted deposition testimony. Further, Mary Elizabeth’s argument is premised on her assertion that Mallory admitted in his deposition testimony that the moneys paid to her were for expenses and were not loans. However, a reading of Mallory’s deposition excerpts in their entirety indicates that he consistently testified throughout his deposition that the moneys he paid to Mary Elizabeth were loans that she was obligated to repay. The above-quoted excerpts relied on by Mary Elizabeth are taken out of context; when they are read in conjunction with the remainder of Mallory’s deposition testimony they are entirely consistent with the overall theme of Mallory’s testimony. Mallory never denied in his deposition having incurred some expenses while he resided with Mary Elizabeth, stating that he was “sure [he] did.” Rather, Mallory testified that the payment of any expenses that he may have incurred should be in the nature of a set-off against the moneys he loaned Mary Elizabeth and the moneys he claims an interest in from the sale of the Neumann Drive property. At no time during Mallory’s deposition did he waiver from his contention that the moneys paid to Mary Elizabeth were loans that she was obligated to repay; therefore, no contradiction exists between Mallory’s deposition testimony and his subsequent affidavit testimony.

Relying upon Bowline v. Cox, 248 Ala. 55, 26 So.2d 574 (1946), Mary Elizabeth next argues that she is entitled to a presumption that when payments are made by a debtor, those payments are made in payment of a debt and that Mallory has made no showing rebutting this presumption. This Court stated in Bowline:

‘It is a correct doctrine to say that payments of money made by a debtor to an existing creditor, or made by one who is under obligation to pay to the receiver thereof, ... will be deemed presumptively to apply as credits upon the obligation, and not as gratuities or gifts.’ ”

Bowline, 248 Ala. at 57, 26 So.2d at 577 (quoting 71 A.L.R. 1018).

Mary Elizabeth’s argument fails because it presumes that Mallory was a debtor. Viewing the record in a light most favorable to Mallory, as we are required to do, we conclude that a question of fact exists as to the nature of the moneys paid by Mallory to Mary Elizabeth and, therefore, a question of fact necessarily exists as to the nature of the relationship between Mallory and Mary Elizabeth that prevents Mary Elizabeth from presuming that Mallory was a debtor. Mallory presented copies of checks and account transfers indicating that he paid to, or on Mary Elizabeth’s behalf, moneys he alleges to be loans to Mary Elizabeth. Mallory testified that the moneys paid to, or on Mary Elizabeth’s behalf, were loans that she was obligated to repay and that she acknowledged that the moneys paid to her were loans. Finally, Mallory testified that Mary Elizabeth has failed to repay those loans. Accordingly, we conclude that Mallory has presented a prima facie case of money owed; therefore, we must reverse the summary judgment as to this issue.

B. Equitable Mortgage

Mallory next argues that he is entitled to an equitable mortgage on the Neumann Drive property. He contends that in March 2001, Mary Elizabeth, in addition to the $60,000 that she had already borrowed from him, wanted to borrow additional money from him, but that he was unwilling to lend her any additional money without an agreement as to how the moneys that he had already lent her and any additional moneys that he may lend her in the future would be repaid. Mallory states that he and Mary Elizabeth entered into an oral agreement in March 2001, pursuant to which he would transfer one-half of his brokerage account to her and assume the mortgage payments, insurance payments, and utility payments on the Neumann Drive property in exchange for Mary Elizabeth’s taking the Neumann Drive property off of the market and transferring to Mallory a half interest in the property as security for the payment to her from his brokerage account, his assuming the mortgage payments and other expenses associated with the property, and the $60,000 he had paid her between January 2000 and November 2000. Mallory states that the agreement provided- that he would be paid for his one-half interest in the Neumann Drive property should it ever be sold. Mallory transferred $103,996.80 to Mary Elizabeth, which represented half of the value of his brokerage account, and assumed the mortgage payments, insurance payments, and utility payments on the Neumann Drive property. He contends that the Neumann Drive property was subsequently sold and that he was not paid for his interest in the property from the sale proceeds.

Mary Elizabeth argues that Mallory’s equitable-mortgage claim fails because, she argues, it violates the Statute of Frauds. We agree. The Statute of Frauds provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....”

§ 8-9-2, Ala.Code 1975. An action seeking to declare an equitable mortgage on property in satisfaction of a debt secured by that property is subject to a Statute of Frauds defense. Edwards v. Scruggs, 155 Ala. 568, 46 So. 850 (1908). See also Davis v. Harris, 211 Ala. 679, 101 So. 458 (1924) (holding that to avoid the Statute of Frauds an equitable mortgage must be evidenced by a writing). A statutory exception to the writing requirement exists where the purchaser pays the purchase money, or a portion thereof, and the purchaser is put in possession of the land by the seller. § 8-9-2(5), Ala.Code 1975; and Keller v. Security Fed. Sav. & Loan Ass’n, 555 So.2d 151 (Ala.1989). In order to satisfy the requirements of the part-performance exception, the possession must be exclusively referable to the contract in issue. Keller, supra. Additionally, this Court has stated the following regarding the possession necessary to satisfy the partial-performance exception:

“ ‘[T]he possession must be referable to the promise and not to some domestic relationship of the vendor and vend-ee....’
“‘... “If the possession ... could be accounted for just as well by some other right or title actually existing in the vendee’s favor, or by some relation between him and the vendor other than the alleged oral contract, it is not such a possession as the doctrine requires.” ’ ”

Smith v. Smith, 466 So.2d 922, 925 (Ala.1985) (quoting Jones v. Jones, 219 Ala. 62, 64, 121 So. 78, 78-79 (1929)).

It is undisputed that the parties’ agreement regarding the Neumann Drive property was never reduced to writing. Further, although Mallory had paid the purchase price for his interest in the property, any claim of possession that he had in the property stemmed from the already existing living arrangement he had with Mary Elizabeth and was not exclusively referable to the parties’ March 2001 agreement regarding the Neumann Drive property. Therefore, because any claim of possession that Mallory had in the Neumann Drive property was not exclusively referable to the March 2001 agreement, he has not satisfied the partial-performance exception to the writing requirement. Accordingly, Mallory’s equitable-mortgage claim fails because it violates the Statute of Frauds, and we affirm the summary judgment as to this issue.

C. Fraud in the Inducement

Mallory next argues that Mary Elizabeth made certain representations to him that induced him into making the loans alleged in this case. Mallory’s entire “argument” as to this issue consists of approximately one-half page in his brief to this Court, contains no discussion regarding the representations that allegedly induced him to act, and cites no authority. Rule 28(a)(10), Ala. R.App. P., provides that the appellant’s brief shall contain “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” It is well settled that ‘“[wjhere an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)). Because Mallory presents virtually no argument and absolutely no authority in support of this issue, we affirm the judgment of the trial court as to this issue.

D. Promissory Fraud

Mallory next asserts a promissory-fraud claim against Mary Elizabeth, alleging that she had no intention of repaying the moneys he lent her at the time she promised to do so. This Court has stated:

“ ‘The elements of fraud are (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. To prevail on a promissory fraud claim such as that at issue here, that is, one based upon a promise to act or not to act in the future, two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.’ ”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1160 (Ala.2003) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)). Further,

“ ‘[w]hile the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory-fraud claim, “the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive.” ’ ”

Byrd v. Lamar, 846 So.2d 384, 343 (Ala.2002) (quoting Ex parte Grand Manor, Inc., 778 So.2d 173, 182 (Ala.2000)).

Mallory contends that he initially paid Mary Elizabeth $60,000 between January 2000 and November 2000 and that she promised to repay that money. However, the parties reached a new agreement regarding the $60,000 in March 2001, when the parties entered into the agreement involving the Neumann Drive property. According to Mallory, Mary Elizabeth agreed to transfer a half interest in the Neumann Drive property to him as security for the initial loans totaling $60,000, for the transfer of $103,996.80 from his brokerage account, and for his assuming the mortgage payments, as well as other expenses, associated with the Neumann Drive property. Mallory testified that under this agreement he would be paid for his interest in the property should the property ever be sold. The property was subsequently sold, and Mallory was not paid for his interest in the property. Mallory alleges that when she entered into the agreement regarding the Neumann Drive property in March 2001, Mary Elizabeth did not intend to pay him for his interest in the Neumann Drive property should it be sold.

Mallory’s promissory-fraud claim is based on Mary Elizabeth’s alleged oral promise that she would transfer a half interest in the Neumann Drive property to Mallory as security for the moneys advanced to her and that she would pay him for his interest in the property should it ever be sold. “[A]n oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud.” Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003). Because the parties’ agreement regarding the Neu-mann Drive property violates the Statute of Frauds, that agreement will not support Mallory’s promissory-fraud claim. Accordingly, the trial court did not err in entering a summary judgment in favor of Mary Elizabeth on this claim.

E. Unjust Enrichment

Mallory next contends that the trial court erred in entering a summary judgment in favor of Mary Elizabeth on his unjust-enrichment claim. In order for a plaintiff to prevail on a claim of unjust enrichment, the plaintiff must show that

“the ‘ “defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.’” Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)).... ‘The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.’ Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989).”

Avis Rent A Car Sys., Inc. v. Heilman 876 So.2d 1111, 1123 (Ala.2003). “ ‘One is unjustly enriched if his retention of a benefit would be unjust.’ ” Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004) (quoting Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997)). The retention of a benefit is unjust if

“ ‘(1) the donor of the benefit ... acted under a mistake of fact or in misreli-anee on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misreliance by the donor or 'wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.’ ”

Welch, 891 So.2d at 843 (quoting Jordan, 705 So.2d at 458). The success or failure of an unjust-enrichment claim depends on the particular facts and circumstances of each case. Heilman, supra.

Mallory alleged in his second amended complaint that he lent the moneys in question to Mary Elizabeth pursuant to an agreement with her pursuant to which she would repay the moneys and that to allow Mary Elizabeth to retain the moneys paid to her would result in her being unjustly enriched.

Mary Elizabeth’s basis for retaining the large sums of money advanced to her by Mallory is a purported oral agreement under which she would provide Mallory with room, board, and incidentals and charge him for those expenses as she deemed appropriate. Regarding the Neumann Drive property, Mary Elizabeth contends that she had wanted to sell the property but had been unable to do so and that Mallory wanted to keep the property in the family for the benefit of the parties’ daughter. Mary Elizabeth, therefore, proposed to Mallory that she would transfer a one-half interest in the property to him in exchange for his transferring to her one-half of the value of his brokerage account; his assuming the expenses associated with the property, including the monthly mortgage payments of $8,993.77; both parties’ agreeing to change the trustee of a trust that had been established for their daughter; and both parties’ agreeing to execute irrevocable wills each containing a $500,000 bequest to the other. Mallory transferred to Mary Elizabeth $103,996.80 representing one-half of his brokerage account and assumed the monthly mortgage payments as well as other expenses associated with the Neumann Drive property. Mary Elizabeth eventually sold the Neu-mann Drive property for $1.2 million and has paid Mallory nothing from the sale proceeds.

Mary Elizabeth contends that Mallory repudiated the agreement because he failed to change the trustee on the trust established for their daughter and failed to execute the will in her favor. She, therefore, unilaterally informed him that she was going to keep the $103,996.80 as a contribution toward his living expenses and was recharacterizing the monthly mortgage payments of $3,993.77 as a payment toward his living expenses. Mallory insists that the agreement regarding the Neumann Drive property did not include changing the trustee of the daughter’s trust or executing wills in favor of each other.

We conclude from the evidence presented that a genuine issue of material fact exists as to whether Mallory fully performed under the agreement he and Mary Elizabeth had reached concerning the Neumann Drive property, i.e., that the property would not be sold, but rather kept in the family, and whether Mary Elizabeth, in violation of the agreement, sold the property for $1.2 million, and rather than pay Mallory as agreed, retained the substantial sum of money redesignating it as living expenses under the guise of an oral agreement that she could charge Mallory as she deemed appropriate for his room and board. Such conduct on the part of Mary Elizabeth would rise to the level of unconscionable conduct as that term is discussed in Welch, supra, and Jordan, supra. Accordingly, we reverse the summary judgment entered by the trial court on Mallory’s unjust-enrichment claim.

II. Claims Arising Out of Mallory’s Practicing Law at Mantiply & Associates

A. Quantum Meruit

Mallory alleges that he was paid only $10,300 by Mary Elizabeth during the 17 months he practiced law at Mantiply & Associates. He contends that Mary Elizabeth failed to compensate him for the reasonable value of his work and he requested an accounting or, in the alternative, a judgment under a quantum meruit theory for the value of the work he performed.

Recovery on a theory of quantum meruit arises when a contract is implied. Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914 (Ala.2002).

“There are two kinds of implied contracts — those implied in fact and those implied in law. Contracts implied in law are more properly described as quasi or constructive contracts where the law fictitiously supplies the promise [to pay for the labor or services of another] to prevent a manifest injustice or unjust enrichment, etc.”

Green v. Hospital Bldg. Auth. of Bessemer, 294 Ala. 467, 470, 318 So.2d 701, 704 (1975). This Court has stated:

“It is the settled law of this State that where one knowingly accepts services rendered by another, and the benefit and the result thereof, the law implies a promise on the part of the one accepting with knowledge the services rendered by another to pay the reasonable value of such services rendered.”

Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792, 795 (Ala.1978). In order to succeed on a claim based on a theory of quantum meruit, the plaintiff must show that it had a reasonable expectation of compensation for its services. Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345 (Ala.1991). However, “[w]hen an express contract exists, an argument based on a quantum meruit recovery in regard to an implied contract fails.” Brannan & Guy, 828 So.2d at 921. The existence of an express contract on a given subject generally excludes an implied agreement on the same subject. Vardaman v. Florence City Bd. of Educ., 544 So.2d 962 (Ala.1989).

The parties’ agreement that Mallory would come to work at Mantiply & Associates, that Mary Elizabeth would continue to control the firm’s money, and that Mallory would be “treated fairly” is so vague as to be tantamount to no agreement at all. The “agreement” contains no identifiable and enforceable measure of a term essential to the agreement — Mallory’s compensation. We note that no contract, whether express or implied-in-fact, is formed “without an offer, an acceptance, consideration, and mutual assent to terms essential to the contract.” Steiger v. Huntsville City Bd. of Educ., 653 So.2d 975, 978 (Ala.1995). Because no express contract or contract implied-in-fact exists between the parties, in order for Mallory to prevail on his claim based on quantum meruit he must establish that Mary Elizabeth knowingly accepted his services and that he had a reasonable expectation of being compensated for his services.

The evidence viewed in a light most favorable to Mallory indicates that Mary Elizabeth asked Mallory in November 2001 to come to work at Mantiply & Associates. Mallory worked long hours while he was working at Mantiply & Associates; Mary Elizabeth rarely came to the office. Mary Elizabeth’s practice had sustained a net loss of approximately $30,719 from January 2000 through November 2001. During the 17 months Mallory practiced law at Mantiply & Associates the practice showed a net profit of approximately $164,544. However, despite turning the practice to profitability, Mallory was paid only $10,300 by Mary Elizabeth during the 17 months he practiced at Mantiply & Associates. There is a factual question as to whether Mary Elizabeth knowingly accepted the benefit of Mallory’s services and whether Mallory had an expectation of being compensated for the reasonable value of his services. Accordingly, we conclude that Mallory has established a prima facie case as to his claim based on quantum meruit.

However, Mary Elizabeth argues that Mallory’s claim seeking recovery under a theory of quantum meruit and arising out of his practice of law at Mantiply & Associates must fail because, she says, he has violated the “clean hands doctrine.” This Court has stated:

“ ‘This Court has recognized that one “who seek[s] equity must do equity” and “one that comes into equity must come with clean hands.” The purpose of the clean hands doctrine is to prevent a party from asserting his, her, or its rights under the law when that party’s own wrongful conduct renders the assertion of such legal rights “contrary to equity and good conscience.” ’ ”

Neal v. Neal, 856 So.2d 766, 786 (Ala.2002) (quoting J & M Bail Bonding Co. v. Hayes, 748 So.2d 198, 199 (Ala.1999)).

Mary Elizabeth argues that Mallory violated the “clean hands doctrine” by covertly opening a bank account at AmSouth Bank in the name of “Mantiply & Associates” and by depositing into that account checks made payable to Mantiply & Associates. She also contends that Mallory violated the clean hands doctrine by diverting clients from Mantiply & Associates by the use of the fee agreements executed in his name rather than in the name of Mantiply & Associates, by redirecting the Best Talk telephone number to the telephone at his new law office, and by taking files belonging to Mantiply & Associates when he left Mantiply & Associates.

A detailed statement of the evidence bearing on these issues is set out above and need not be repeated. The evidence viewed in a light most favorable to Mallory indicates that questions of fact exist as to whether Mallory violated the clean hands doctrine so as to preclude his quantum meruit recovery. Accordingly, we conclude that the trial court erred in entering a summary judgment in favor of Mary Elizabeth on Mallory’s claim, based on a theory of quantum meruit, arising out of the practice of law at Mantiply & Associates. We therefore reverse the summary judgment as to that claim.

B. Fraud in the Inducement

Mallory next argues that Mary Elizabeth made certain fraudulent representations to him that induced him to practice law at Mantiply & Associates. Mallory’s “argument” in support of this claim consists of one page and cites no authority. Mallory has again failed to comply with the minimum requirements of Rule 28, Ala. R.App. P.; therefore, we affirm the judgment of the trial court as to this issue. Spradlin, supra.

Even assuming, however, that Mallory had satisfied the requirements of Rule 28 as to this claim, his claim would still fail. Mallory could not have reasonably relied on the representations allegedly made by Mary Elizabeth. An essential element of any fraud claim is “reasonable reliance.” See Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002). Mallory contends that Mary Elizabeth made representations concerning the nature and profitability of her various business ventures and her financial ability to fund a law practice. However, these representations were made by Mary Elizabeth to Mallory after Mary Elizabeth had borrowed approximately $164,000 from Mallory and Mallory had assumed the mortgage on the Neumann Drive property. Additionally, Mallory testified that Mary Elizabeth was going to have to “pawn” her automobile if he did not lend her money on one occasion; that Mary Elizabeth’s living expenses were exorbitant; and that her law practice was “dead” when he started working at Manti-ply & Associates. Accordingly, we conclude that Mallory could not have reasonably relied on any representations as to Mary Elizabeth’s ability to finance a law practice.

Cross-Appeal

Mary Elizabeth argues in her cross-appeal that the trial court erred in striking certain matters from her counterclaim complaint, summary-judgment narrative, and affidavit. Specifically, Mary Elizabeth contends that the matters stricken by the trial court were relevant and necessary to her defense of the claims asserted by Mallory. However, Mary Elizabeth has cited no authority in support of this contention. She cites only Rule 12(f), Ala. R. Civ. P., which provides:

“Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

Mary Elizabeth does not argue in her brief in support of her cross-appeal that Mallory’s motion to strike was untimely. Further, Rule 12(f) relates only to motions to strike materials from pleadings and not to materials filed in support of a motion for a summary judgment, e.g., affidavits, briefs, exhibits, etc. Accordingly, because Mary Elizabeth has failed to cite any relevant authority in support of her contention, we affirm the trial court’s order striking portions of Mary Elizabeth’s counterclaim, summary-judgment narrative, and affidavit. Spradlin, supra.

Conclusion

We reverse the trial court’s judgment as it pertains to Mallory’s claims asserting money owed and unjust enrichment and seeking recovery under a theory of quantum meruit arising out of his practice of law at Mantiply & Associates. We affirm the trial court’s judgment as it pertains to Mallory’s fraud claims and his claim asserting an equitable mortgage. As to Mary Elizabeth’s cross-appeal, we affirm the trial court’s order granting Mallory’s motion to strike.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

      . Mantiply & Associates is the trade name under which Mary Elizabeth has practiced law since 1986.

      . This amount includes the $60,000 Mallory allegedly loaned to Mary Elizabeth; the transfer of $103,996.80 from Mallory’s brokerage account; and the monthly payments of $3,993.77 Mallory says he made after he assumed the mortgage on the Neumann Drive property.

      . Mary Elizabeth raised set-off as an affirmative defense; therefore, she has the burden of proving that defense. Ex parte Fort James Operating Co., 895 So.2d 294 (Ala.2004). However, Mary Elizabeth failed to develop this set-off defense in her motion for a summary judgment, and she does not argue it on appeal.

      . For example, he presented copies of checks indicating that Mallory paid the $3,993.77 monthly mortgage payment on the Neumann Drive property directly to the mortgage company.

      . Because the initial loans of $60,000 were made a part of the agreement regarding the Neumann Drive property reached between the parties in March 2001, we consider any promise by Mary Elizabeth to repay those loans as arising from the March 2001 transaction and not from earlier transactions occurring between January 2000 and November 2000.

      . It is undisputed that no partnership agreement existed between the parties. The business relationship that existed between the parties is more akin to an employer-employee relationship or a contractor-independent contractor relationship. Therefore, we will not analyze this claim as one seeking an accounting, but rather as one seeking the value of the legal work performed by Mallory while he worked at Mantiply & Associates under a theory of quantum meruit.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte JEFFERSON SMURFIT CORPORATION (U.S.), on its behalf and as successor by merger to Container Corporation of America. (In re Jefferson Smurfit Corporation (U.S.) v. Thomas Surtees, as commissioner of revenue for the State of Alabama).
    1041151.
    Supreme Court of Alabama.
    May 26, 2006.

      Matthew H. Lembke and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for petitioner.
    Troy King, atty. gen.; Charles Campbell, asst. atty. gen.; and Pamela B. Slate and Susan E. Kennedy of Slate Kennedy, LLC, Montgomery, for respondent.
   SEE, Justice.

The Montgomery Circuit Court determined that Jefferson Smurfit Corporation (U.S.) (“Jefferson Smurfit”) could not proceed on its appeal of the Alabama Department of Revenue’s denial of its petition for a refund of franchise taxes and dismissed its appeal. The Court of Civil Appeals affirmed the trial court’s decision, without opinion. Jefferson Smurfit Corporation (U.S.) v. Surtees (No. 2030987, April 22, 2005), 945 So.2d 496 (Ala.Civ.App.2005) (table). We granted Jefferson Smurfit’s petition for the writ of certiorari, and we now reverse the judgment of the Court of Civil Appeals.

Facts and Procedural History

In December 1996, Jefferson Smurfit, an out-of-state company, petitioned the Alabama Department of Revenue (“the Department”) for a refund of franchise taxes paid in 1994, 1995, and 1996, alleging that Alabama’s franchise-tax structure discriminates against interstate commerce and is therefore unconstitutional. Because the Department did not respond to Jefferson Smurfit’s refund petitions within six months, the petitions were denied by operation of law. See § 40-2A-7(c)(3), Ala. Code 1975, a provision of the Alabama Taxpayers’ Bill of Rights, Ala.Code 1975, § 40-2A-1 et seq. (“the TBOR”).

In December 1998, Jefferson Smurfit appealed the Department’s denial of its 1994, 1995, and 1996 refund petitions by filing a “Complaint on Notice of Appeal” in the Montgomery Circuit Court, pursuant to Ala.Code 1975, 40-2A-7(c)(5)b. Jefferson Smurfit contended that Alabama’s franchise-tax structure is unconstitutional. At the time, the case of South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999), which was also a constitutional challenge to Alabama’s franchise-tax structure, was pending before the Supreme Court of the United States. Therefore, Jefferson Smurfit and the Department filed a joint stipulation asking the trial court to place Jefferson Smurfit’s appeal on the court’s administrative docket pending resolution of that case. The trial court granted their request.

In March 1999, the Supreme Court of the United States declared Alabama’s franchise-tax structure unconstitutional as impermissibly discriminating against interstate commerce. South Central Bell, 526 U.S. at 169, 119 S.Ct. 1180 (“[W]e conclude that this Court’s Commerce Clause precedent requires us to hold Alabama’s franchise tax unconstitutional.”).

On September 15,1999, Jefferson Smur-fit petitioned the Department seeking a refund of franchise taxes for the 1999 tax year, citing South Central Bell. In March 2000, Jefferson Smurfit’s 1999 refund petition was denied by operation of law, under Ala.Code 1975, § 40-2A-7(c)(3).

On October 30, 2000, Jefferson Smurfit filed in the Montgomery Circuit Court its “First Amendment to Complaint on Notice of Appeal” seeking to add to its appeal of the Department’s denials of the refund petitions for 1994, 1995, and 1996 an appeal of the Department’s denial of Jefferson Smurfit’s 1999 refund petition. Jefferson Smurfit’s amended notice of appeal states that it incorporates all the claims, arguments, and facts contained in the initial notice of appeal, and cites South Central Bell as authority for its entitlement to a full refund of all franchise taxes paid for the tax year 1999.

On November 7, 2000, the Department answered Jefferson Smurfit’s amended notice of appeal, admitting that Alabama’s franchise-tax scheme had been declared unconstitutional, but requesting that the trial court nevertheless deny Jefferson Smurfit’s request for a refund. The Department also requested a further stay of the case, pending this Court’s decision in Patterson v. Gladwin, 835 So.2d 137 (Ala.2002), another case involving the State’s franchise-tax structure, which the Department contended “may govern this case.” On January 29, 2001, the Department filed an “Amended Answer” raising various defenses.

On May 17, 2002, we issued our decision in Patterson v. Gladwin. Our decision affected taxpayers that sought refunds of franchise taxes through a direct action in the circuit court against the State; thus, it did not determine the outcome of Jefferson Smurfit’s case, which seeks a refund of franchise taxes in a proceeding brought under the TBOR.

In July 2002, the trial court appointed a special master to facilitate the large number of franchise-tax cases then pending before that court. On November 22, 2002 — more than two years after Jefferson Smurfit had filed its amended notice of appeal- — in an informal conference with the special master, the Department mentioned — Jefferson Smurfit contends for the first time- — -that it believed Jefferson Smurfit’s amended notice of appeal was improper. On January 21, 2003, the Department formally asserted for the first time, by submitting a letter brief to the special master, that Jefferson Smurfit’s amended notice of appeal was not a “notice of appeal” under the TBOR. The Department also argued that a new notice of appeal would be barred by the TBOR’s two-year statute of limitations.

On February 14, 2003 — two and a half years after Jefferson Smurfit had amended its notice of appeal — the Department moved to strike Jefferson Smurfit’s amended notice of appeal. The Department argued that the amendment was improper under Rule 15(d), Ala. R. Civ. P., which addresses supplemental pleadings. On February 27, 2003, Jefferson Smurfit (jointly with the many other taxpayers who had sought to appeal the Department’s denials of refunds by amending their notices of appeal from previous refund denials) opposed the Department’s motion to strike.

The special master submitted a recommendation to the trial court to not allow Jefferson Smurfit’s amended notice of appeal, concluding that the amended notice of appeal was insufficient under the TBOR and, alternatively, that the amended notice was improper under Rule 15(d), Ala. R. Civ. P., because Jefferson Smurfit had not formally sought leave of court before amending its notice of appeal. On March 9, 2004, the trial court adopted the special master’s recommendation and entered an order finding (1) that Jefferson Smurfit’s amended notice of appeal did not strictly comply with the appeal procedures in the TBOR, and (2) that the amended notice violated Rule 15(d), Ala. R. Civ. P. Thus, the trial court dismissed Jefferson Smur-fit’s amended notice of appeal. The trial court certified its order as appropriate for interlocutory appeal, pursuant to Rule 5, Ala. R.App. P.

Jefferson Smurfit petitioned this Court for the writ of certiorari. We granted Jefferson Smurfit’s petition to consider, as a question of first impression, whether under the TBOR a taxpayer can amend a previously filed notice of appeal to include an additional refund petition for a tax year occurring after the original notice of appeal was filed.

Analysis

I.

The TBOR sets forth alternative procedures for a taxpayer to appeal from the denial of a petition for a refund:

“(5) PROCEDURES IF REFUND DENIED; APPEAL.
“a. A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a notice of appeal with the Administrative Law Division ■within two years from the date the petition is denied, and the appeal, if timely filed, shall proceed as hereinafter provided for appeals to the Administrative Law Division.
“b. In lieu of appealing to the Administrative Law Division, the taxpayer may appeal from the denial of a petition for refund by filing a notice of appeal with the Circuit Court in Montgomery County, Alabama, or the circuit court of the county in which the taxpayer resides or has a principal place of business in Alabama, as appropriate, by filing the notice of appeal within two years from the date the petition is denied. The circuit court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any.”

Ala.Code 1975, § 40-2A-7(c).

Jefferson Smurfit proceeded under § 40-2A-7(c)(5)b. with respect to the denial of its refund petitions for 1994, 1995, and 1996, by filing a “Complaint on Notice of Appeal” with the Montgomery Circuit Court. There is no dispute that this notice of appeal complies with the requirements of the TBOR. Jefferson Smurfit likewise sought to proceed under § 40-2A-7(c)(5)b. with respect to its refund for 1999 by filing an “Amended Complaint on Notice of Appeal” with the Montgomery Circuit Court, adding its claim for 1999 to its earlier filed claims. The Department contends that Jefferson Smurfit’s amended notice of appeal fails to comply with the TBOR.

The TBOR broadly defines a “notice of appeal” as “[a]ny written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought.” Ala.Code 1975, § 40-2A-3(12). The Department has conceded, for the sake of argument, that Jefferson Smurfit’s amended notice of appeal meets the TBOR’s definition of a “notice of appeal.”

Alabama Code 1975, § 40-2A-7(c)(5)c., requires that “[i]f an appeal is not filed with the Administrative Law Division or the circuit court within two years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction.” Jefferson Smurfit’s appeal of the denial of its request for a refund of franchise taxes for 1999 was denied by operation of law on or about March 15, 2000 — 6 months after it was filed. See Ala.Code 1975, § 40-2A-7(c)(3). Jefferson Smurfit filed its amended notice of appeal on October 30, 2000. Thus, Jefferson Smurfit’s amended notice of appeal was filed within two years of the denial of the refund request.

Although Jefferson Smurfit’s amended notice of appeal undisputedly meets the TBOR’s definition of a “notice of appeal” and was timely filed, the Department argues that Jefferson Smurfit’s “amended notice of appeal” does not comply with the TBOR. The Department infers from the use of the word “filing” in Ala.Code 1975, § 40-2A-7(c)(5)b., that Jefferson Smurfit was required, in order to appeal the denial of its 1999 refund petition, to institute a new action in the circuit court. The Department further infers that, because the circuit court “shall hear the appeal according to its own rules and procedures,” § 40-2A-7(e)(5)b., the filing of a new action includes paying a filing fee and perfecting service of process on the Department, under Rule 4(c)(7), Ala. R. Civ. P., none of which Jefferson Smurfit did by amending its notice of appeal to include its 1999 refund claim.

In support of its contention that Jefferson Smurfit was required to meet the procedural requirements that accompany the filing of a new action in the circuit court when it filed its amended notice of appeal, the Department cites Opinion of the Clerk, No. 51, 708 So.2d 568, 569 (Ala.1997), for the proposition that “[t]he prevailing rule in Alabama is that an appeal is the institution of a new statutory proceeding.” (Quoting Opinion of the Clerk, No. 16, 362 So.2d 1259, 1259-60 (Ala.1978)). However, neither that statement nor any other authority the Department cites supports the Department’s argument that amending a notice of appeal is the institution of a new action that requires the- payment of a separate initial filing fee and another perfecting of service of process on the Department, all separate and apart from the action that was instituted upon the filing of the initial notice of appeal.

Under the Alabama Rules of Civil Procedure, the filing of an amended complaint is not the institution of a new action separate and apart from the institution of the initial complaint, requiring the payment of a new filing fee and service of process upon previously served defendants. See Rule 5, Ala. R. Civ. P. (“every pleading subsequent to the original complaint” is to be served according to Rule 5 — that is, generally, by service upon a party’s attorney — instead of in accordance with Rule 4, Ala. R. Civ. P.). Thus, the Department’s argument that the TBOR prohibited Jefferson Smurfit from filing an amended notice to appeal the Department’s denial of Jefferson Smurfit’s 1999 refund request is unpersuasive.

Moreover, as Jefferson Smurfit points out, the requirement the Department would impose upon Jefferson Smur-fit — instituting a new action, including the payment of a filing fee and perfecting service of process — does not appear in the TBOR. While it is true, as the Department argues, that the requirements of the TBOR are to be strictly complied with, Patterson v. Gladwin, 835 So.2d at 151, it is also true that the TBOR is to be “liberally construed to allow substantial justice.” Ala.Code 1975, § 40-2A-2(1)a. With respect to the filing of a notice of appeal in the circuit court, the TBOR requires only that the notice of appeal be written and “sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought,” Ala.Code 1975, § 40-2A-3(12), and that it be timely filed, Ala.Code 1975, § 40-2A-7(c)(5)e. The TBOR does not state that an appealing taxpayer must file a new and independent action in the circuit court and pay an additional filing fee and perfect service of process on the Department for each refund denial it seeks to appeal, even though the taxpayer has other denials pending in the circuit court at the time; the TBOR does not indicate that filing an amended notice of appeal in lieu of a new notice of appeal is noncompliant with the TBOR. The TBOR instead states that the circuit court is to proceed with the appeal “according to its own rules and procedures.” Ala.Code 1975, § 40-2A-7(c)(5)b. The Alabama Rules of Civil Procedure and the Alabama Code do not require the payment of a filing fee and service of process for amending a complaint. See generally, Rule 5, Ala. R. Civ. P.

In short, we agree with the Department that the right to a franchise-tax refund is a matter of legislative grace and that strict compliance with the TBOR is the exclusive means by which to obtain a franchise-tax refund. Patterson v. Glad win, supra. However, we cannot agree with the Department that Jefferson Smur-fit has failed to comply strictly with the TBOR. To agree with the Department’s argument — that is, to impose upon Jefferson Smurfit a requirement that is not in the TBOR and that is incongruous with the Alabama Rules of Civil Procedure— would be to construe the TBOR inconsistently with the express legislative intent that the TBOR be “liberally construed to allow substantial justice.” § 40-2A-2(1)a. Thus, we conclude that the trial court could not have properly dismissed Jefferson Smurfit’s amended notice of appeal on the basis that it did not comply with the requirements of the TBOR.

II.

As an alternative basis for dismissing Jefferson Smurfit’s amended notice of appeal, the trial court concluded that the amendment was impermissible under Rule 15(d), Ala. R. Civ. P. Because we must affirm a lower court’s judgment if it is correct for any reason, we will address whether the trial court properly dismissed Jefferson Smurfit’s amended notice of appeal on that basis.

Rule 15(d), Ala. R. Civ. P., “Supplemental Pleadings,” provides:

“Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time thereof.”

“The purpose of [Rule 15(d), Fed.R.Civ.P.,] is to promote as complete an adjudication of the dispute between the parties as is possible.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d § 1504 (1990) (footnotes omitted).

Jefferson Smurfit denominated its second notice of appeal as an “amendment,” although it is actually a supplemental notice of appeal. However,

“the distinction between amended and supplemental pleadings is sometimes ignored completely. Inasmuch as the discretion exercised by the court in deciding whether to grant leave to amend is similar to that exercised on a motion for leave to file a supplemental pleading, the court’s inattention to the formal distinction between amendment and supplementation is of no consequence.”

6A Wright, Miller & Kane, § 1504 (footnotes omitted). Although a supplemental pleading always requires leave of court to file, whereas an amended pleading sometimes does not, the effect of that difference is often of little consequence:

“[The difference] is that certain amendments may be made as a matter of course within stated time periods, whereas all supplemental pleadings require leave of court. But even if a supplemental pleading is interposed by a party without leave of court in the mistaken belief it is a Rule 15(a) amendment that may be made as a matter of course, it is doubtful that any prejudice would accrue to the opposing party because the time during which amendments as of right may be filed is relatively short and comes early in the action so that prejudice to any other party is unlikely.”

6A Wright, Miller & Kane, § 1504.

Under the Federal Rules of Civil Procedure, an amendment as of right may be filed “at any time before a responsive pleading has been served.” Rule 15(a), Fed.R.Civ.P. Under the Alabama Rules of Civil Procedure, an amendment as of right may be filed “at any time more than forty-two (42) days before the first setting of the case for trial,” subject to disallowance on the court’s own motion or on a motion to strike filed by an adverse party. Rule 15(a), Ala. R. Civ. P. Thus, it may be more likely under the Alabama Rules of Civil Procedure that a party might be prejudiced by a supplemental pleading made without leave of court during the time allowed for amending a complaint as of right: the time period within which the amendment can be made — at any time more than 42 days preceding the first trial date — may be longer than the typically 30-day period preceding the filing of a responsive pleading. Nonetheless, the concern is the actual prejudice to the adverse party in allowing the supplemental pleading. See generally 6A Wright, Miller & Kane, § 1504.

When Jefferson Smurfit filed its supplemental notice of appeal, without moving the trial court for permission to do so, a trial date had not been set, nor had the Department responded to Jefferson Smurfit’s initial notice of appeal. Thus, “it is doubtful that any prejudice would accrue” to the Department in allowing the supplemental notice of appeal without leave of court. Indeed, we cannot find that any actual prejudice resulted to the Department from Jefferson Smurfit’s failure to seek leave to supplement its notice of appeal. “Normally, an amendment should be denied only if the amendment would cause actual prejudice to the adverse party.” Rule 15, Ala. R. Civ. P., Committee Comments on 1973 Adoption, citing 6 Wright, Miller & Kane, Federal Practice & Procedure: Civil § 1484 (1971). We think that the same principle applies to supplemental pleadings. See generally 6A Wright, Miller & Kane, § 1504 (“the court’s inattention to the formal distinction between amendment and supplementation is of no consequence”). In addition, “[t]he practice is usually liberal in allowing supplemental pleadings.” Rule 15, Ala. R. Civ. P., Committee Comments on 1973 Adoption.

If Jefferson Smurfit had moved the trial court for permission to supplement its notice of appeal, the trial court should have “freely granted” the permission if “doing so [would] promote the economic and speedy disposition of the entire controversy between the parties, [would] not cause undue delay or trial inconvenience, and [would] not prejudice the rights of any of the other parties to the action.” 6A Wright, Miller & Kane, § 1504. We noted in Image Marketing, Inc. v. Florence Television, L.L.C., 884 So.2d 822 (Ala.2003), that a supplemental pleading filed without leave of court may be given effect if leave would have been granted:

“In Hoover v. Blue Cross & Blue Shield of Alabama, 855 F.2d 1538 (11th Cir.1988), the United States Court of Appeals for the Eleventh Circuit addressed the legal effect of an attempt to amend a complaint without obtaining leave of court when the amendment could not be made as of right. There, the court stated:
“ ‘In general, if an amendment that cannot be made as of right is served without obtaining the court’s leave or the opposing party’s consent, it is without legal effect and any new matter it contains will not be considered unless the amendment is resubmitted for the court’s approval.’
“... The court in Hoover noted, however, as an aside, that ‘an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought.’ 855 F.2d at 1544.”

884 So.2d at 825-26. There is no indication that the trial court in this case would not have granted Jefferson Smurfit leave to supplement had it so requested. Indeed, it appears to us that the trial court should have granted Jefferson Smurfit leave to supplement had it so moved the trial court.

If the Department felt aggrieved by Jefferson Smurfit’s supplementing its notice of appeal without leave of court, it should have timely brought the matter to the trial court’s attention by moving the trial court to strike the supplemental notice of appeal. “An opposing party who does feel aggrieved [by the supplementation of a pleading without leave of court in the mistaken belief it is a Rule 15(a) amendment] may move to strike the mislabeled pleading, which would have the practical effect of bringing the question of its propriety before the court as if it had been raised on a motion under Rule 15(d).” 6A Wright, Miller & Kane, § 1504. See also Agio Indus., Inc. v. Delta Oil Co., 485 So.2d 340, 342 (Ala.Civ.App.1986) (the best practice in dealing with an amended complaint is either to submit an answer or to move to strike the amendment under Rule 12(f), Ala. R. Civ. P.).

The Department moved the trial court to strike Jefferson Smurfit’s supplemental notice of appeal two and a half years after Jefferson Smurfit had filed a supplemental notice of appeal. By that time, Jefferson Smurfit was barred by the time limitations of the TBOR from filing another action. See Ala.Code 1975, § 40-2A-7(c)(5)c. Thus, granting the Department’s motion to strike, which it had failed to file until that late date, resulted in severe prejudice to Jefferson Smurfit. In addition, Rule 12(f), Ala. R. Civ. P., indicates that a party may move to strike only before responding to a pleading. When the Department moved to strike Jefferson Smurfit’s supplemental notice of appeal, it had already answered the pleading.

Jefferson Smurfit argues that holding it to the formalistic requirements of Rule 15(d), Ala. R. Civ. P., while allowing the Department to sit on its objection until the statutory period of limitations of the TBOR had expired allows the Alabama Rules of Civil Procedure to operate as a “trap for the unwary.” Jefferson Smurfit contends that such a construction is contrary to our prior decisions and cites Kissic v. Liberty National Life Insurance Co., 641 So.2d 250, 252 (Ala.1994) (“Any construction of [a rule of procedure] on our part that could, under certain circumstances, create a trap for an unwary attorney would surely violate the spirit, if not the letter, of our rules of civil procedure.”); Barnes v. Dale, 530 So.2d 770, 777 (Ala.1988) (“formality is subordinate to the substantive interests of the parties”); and Hand v. Thornburg, 425 So.2d 467, 469 (Ala.Civ.App.1982) (“Myriad changes have been made ... in an attempt to eliminate, or soften the effect of, ultra technical rules of civil trial and appellate procedures thereby striving for a just, speedy and inexpensive determination of each civil action upon its merits.”). We agree.

Because the Department suffered no prejudice by Jefferson Smurfit’s supplementing its notice of appeal without leave of court, and because allowing the Department to sit on its objection to the supplement until Jefferson Smurfit was time-barred from filing a new action greatly prejudiced Jefferson Smurfit (and the franchise tax Jefferson Smurfit seeks to have refunded was indisputably unconstitutionally collected), we cannot agree that the trial court was correct in dismissing Jefferson Smurfit’s supplemental notice of appeal because Jefferson Smurfit did not seek leave of court to file it.

Conclusion

The TBOR did not require Jefferson Smurfít to institute a new action to bring the denial of its 1999 refund petition before the circuit court. In addition, the trial court exceeded its discretion in dismissing Jefferson Smurfit’s supplemental notice of appeal for failing to seek leave of court to file it. Accordingly, we reverse the Court of Civil Appeals’ judgment affirming the trial court’s order of dismissal of Jefferson Smurfit’s supplemental notice of appeal, and we remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ„ concur.

      . Jefferson Smurfit Corporation (U.S.) merged with Container Corporation of America effective December 31, 1994; the surviving company operates under the name Jefferson Smurfit Corporation (U.S.).

      . Jefferson Smurfit filed three separate refund petitions, one for each year. The three refund petitions were submitted to the Department together, the cover letter requesting "that these petitions be maintained together regarding any and all refund or appeal processes, actions, or related correspondence pertaining to these filings.”

      . Section 40-2A-7(c)(3), Ala.Code 1975, provides:
      “The [D]epartment shall either grant or deny a petition for refund within six months from the date the petition is filed.... If the [Department fails to grant a refund within the time provided herein, the petition for refund shall be deemed to be denied.”

      . Jefferson Smurfit’s notice of appeal initiated the action in the circuit court and is styled as a “Complaint on Notice of Appeal.” We therefore treat its notice of appeal as a "pleading” for purposes of the applicability of the Alabama Rules of Civil Procedure. See note 16.

      .Jefferson Smurfit paid only the 'minimum franchise tax due for the tax years 1997 and 1998 and therefore did not file refund petitions for those years.

      . Jefferson Smurfit asserts that there are 20 cases pending in the Montgomery Circuit Court in which a taxpayer filed an amended notice of appeal without leave of court; the Department did not object at the time the amendment was filed; and the Department filed a motion to strike the amended notice of appeal after substantial time had passed. The special master designated Jefferson Smurfit’s case as a "test case” to determine whether the amended notices of appeal are permissible.

      . Section 40-2A-7(c)(5)c., Ala. Code 1975, provides:
      "If an appeal is not filed with the Administrative Law Division or the circuit court within two years of the date the petition is denied, the appeal shall be dismissed for lack of jurisdiction.”

      . The entirety of the special master's analysis on these two points is as follows:
      "The taxpayers argue that the amendments constitute 'Notices of Appeal’ as defined by Ala.Code [1975,] § 40-2A-3(12), but ignore the fact that they have not instituted a new independent action, have not paid a filing fee and did not serve the parties required to be served by the TBOR. Moreover, the amendments are improper under the Alabama Rule of Civil Procedure 15(d) as they raise allegations relating to 'transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented’ (later tax years) as permission to supplement was not sought or granted. These alleged amendments are a nullity and ineffective. If the taxpayer files a timely Notice of Appeal and new civil action in the future, the claims may be presented timely.”
      Jefferson Smurfit’s refund petition for the tax year 1999 was denied in March 2000; thus, an appeal as to the 1999 tax year would have been untimely if one were filed after the special master issued his report in February 2004.

      . The trial court also later certified its order as final under Rule 54(b), Ala. R. Civ. P.

      . In support of its contention that Jefferson Smurfit was required to pay an additional filing fee, the Department cites Ala.Code 1975, § 12-19-71(3), which, before it was rewritten effective May 26, 2004, provided: "The docket fees which shall be collected in civil cases shall be: ... [o]ne hundred ten dollars for cases filed in the circuit court....”

      . Rule 4(c)(7), Ala. R. Civ. P., provides that service of process shall be made upon the State or any one of its departments "by serving the officer responsible for the administration of the department ... and by serving the attorney general of this state....”

      . Alabama Code 1975, § 12-2—19(d), addresses opinions of the clerk:
      "The Clerk of the Supreme Court shall give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the Supreme Court to any other officer or official of the state who shows a need for such opinion and requests the same. The written opinion of the Clerk of the Supreme Court shall protect the officer or official to whom it is directed as well as other officers or officials who use it as guidance from liability to either the state, county or any municipal subdivision of the state because of any official act or acts performed as directed or advised in such opinion; provided, however, that such opinion shall be merely advisory....”

      .The Department also quotes the following from Opinion of the Clerk, No. 51: "An appeal to the circuit court from the district court initiates a 'new and independent’ action in the circuit court, ‘as if no decision had been previously entered' in the district court....” 708 So.2d at 569. The questions addressed in Opinion of the Clerk, No. 51 were: "(1) If more than one party to an action appeals a decision of the district court to the circuit court, must each of such parties pay a docket fee?”; and "(2) If more than one party to an action appeals a decision of the district court to the circuit court and demands a jury trial, must each of such parties pay a 'jury demand' fee?” 708 So.2d at 569. The clerk’s determination of these questions does not address, let alone resolve, the question presented here.

      . We note that Jefferson Smurfit’s first "Complaint on Notice of Appeal” appealed the denial of three separate refund petitions— those for 1994, 1995, and 1996. The Department has not complained that Jefferson Smurfit was required to institute a separate action for each of those three refund-request denials.

      . The Department's brief makes much ado about sovereign immunity; the Department argues that this is an action against the State insofar as Jefferson Smurfit is proceeding outside the TBOR and, thus, it argues, the action is barred by the doctrine of sovereign immunity. We held in Patterson v. Gladwin that a direct action against the State by a taxpayer for a refund of taxes is barred by the doctrine of sovereign immunity; however, the TBOR, as a matter of legislative grace, allows a taxpayer to seek a refund of taxes from the State. The Department's argument that Jefferson Smurfit is proceeding outside the TBOR presumes that Jefferson Smurfit's amended notice of appeal does not comply with the TBOR. Because we have concluded that Jefferson's Smurfit’s amended notice of appeal does not run afoul of the TBOR, the Department's sovereign-immunity argument has no merit.

      .Jefferson Smurfit contends that a notice of appeal is not a "pleading,” because a notice of appeal is not included within Rule 7(a), Ala. R. Civ. P., which lists pleadings as: "a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim ...; a third-party complaint ...; and a third-party answer.” Because it contends that a notice of appeal is not a pleading, Jefferson Smurfit contends, its amended notice of appeal is not limited by the provisions of Rule 15, Ala. R. Civ. P.

        Black’s Law Dictionary 303 (8th ed.2004) defines a "complaint” as: "The initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.” Because Jefferson Smurfit’s initial notice of appeal instituted the action in the circuit court, we cannot agree with Jefferson Smurfit that its notice of appeal is not a "pleading” or that its amended notice of appeal was not an amended, or a supplemental, pleading. We note that Jefferson Smurfit saw fit to denominate its notice of appeal a “Complaint on Notice of Appeal,” presumably because Jefferson Smurfit recognized that that document instituted the action in the circuit court. As we noted above (to the benefit of Jefferson Smurfit), the TBOR states that "[t]he circuit court shall hear the appeal according to its own rules and procedures.” § 40-2A-7(c)(5)b. Thus, we proceed under the assumption that Jefferson Smurfit’s amended notice of appeal is subject to Rule 15, Ala. R. Civ. P.

      . Rule 15(d), Fed.R.Civ.P., is identical to Rule 15(d), Ala. R. Civ. P.

      . A "supplemental” pleading sets forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” See Rule 15(d), Ala. R. Civ. P. "[Amended pleadings] relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading; [supplemental pleadings] deal with events subsequent to the pleading to be altered and merely represent additions to or continuations of the earlier pleadings.” 6A Wright, Miller & Kane, § 1504 (footnotes omitted). "However, these misnomers are not of any significance and do not prevent the court from considering a motion to amend or supplement under the proper portion of [Federal] Rule 15.” Id.

      . We noted in Image Marketing that "[Image Marketing]'s attempt to amend the complaint was, in fact, an attempt to supplement the original pleadings with a ‘new’ claim,” 884 So.2d at 825, without moving to supplement the pleadings. To consider the legal effect of Image Marketing’s attempt to supplement the pleadings without leave of court, we turned to Hoover v. Blue Cross & Blue Shield of Alabama, 855 F.2d 1538 (11th Cir.1988), which addresses the legal effect of an attempt to amend a complaint without obtaining leave of court when the amendment could not be made as of right.

      . An appellate court will not disturb a trial court’s decision on a Rule 15(d) motion unless it exceeded its discretion. 6A Wright, Miller & Kane, § 1504. If Jefferson Smurfit had moved the trial court for leave to supplement, the trial court should have granted that motion. The trial court may or may not have exceeded its discretion if it refused, but, at the time Jefferson Smurfit supplemented its notice of appeal, if the trial court refused to allow Jefferson Smurfit to supplement, Jefferson Smurfit could have filed a new action. When the Department finally moved the trial court to strike Jefferson Smurfit’s supplemental notice of appeal, Jefferson Smurfit was barred from bringing a new action by the time limitations of the TBOR thus bringing into play an element of prejudice that was not present when Jefferson Smurfit initially supplemented its notice of appeal.

      . Jefferson Smurfit contends that the Department was required to file its motion to strike within 30 days, pursuant to Rule 12(f), Ala. R. Civ. P., which provides:
      "Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

      . See note 21.


author: PER CURIAM.

text:
    JEFFERSON SMURFIT CORPORATION (U.S.) v. Thomas SURTEES, as commissioner of revenue for the State of Alabama.
    2030987.
    Court of Civil Appeals of Alabama.
    Aug. 25, 2006.
    Matthew H. Lembke and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for appellant.
    Troy King, atty. gen., and Scott L. Rouse, asst. atty. gen.; and Susan E. Kennedy of Slate Kennedy, LLC, Montgomery; and Pamela B. Slate of Slate Kennedy, LLC, Birmingham, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

This court, on April 22, 2005, affirmed the circuit court’s judgment, without an opinion. Jefferson Smurfit Corp. (U.S.) v. Surtees (No. 2030987, April 22, 2005), 945 So.2d 496 (Ala.Civ.App.2005) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Jefferson Smurfit Corp. (U.S.), 951 So.2d 659 (AIa.2006). In compliance with the Supreme Court’s opinion, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

All the judges concur.