author: STUART, Justice.

text:
    John Wesley BOYCE, Sr., et al. v. Joseph N. CASSESE et al.
    1040891.
    Supreme Court of Alabama.
    April 28, 2006.

      Roger L. Bates and Tracy R. Davis of Hand Arendall, L.L.C., Birmingham; and Jesse Evans and Michael Odom of Adams & Reese, L.L.P., Birmingham, for appellants.
    James W. Fuhrmeister of Allison, May, Alvid, Fuhrmeister & Kimbrough, L.L.C., Birmingham, for appellees Joseph N. Cassese and Jenna Knox Cassese.
    Hope T. Cannon of Bradley Arant Rose & White, LLP, Birmingham, for appellee Greystone Golf Club, Inc.
    Larry W. Harper, F. Brady Rigdon, and W. Perry Webb of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellee Birmingham Title Services Corporation.
    Eddie Leitman and Christopher R. Hood of Leitman, Siegel & Payne, P.C., Birmingham, for appellee Stewart Title Guaranty Company.
   On Application for Rehearing

STUART, Justice.

The opinion of January 13, 2006, is withdrawn the following opinion is substituted therefor.

John Wesley Boyce, Sr.; his wife, May-ron B. Boyce; and John Wesley Boyce, Sr., as trustee under the Revocable Trust of John Wesley Boyce, Sr. (hereinafter referred to collectively as “the Boyces”), appeal from a summary judgment entered in favor of Joseph Cassese; his wife, Jenna Knox Cassese; Greystone Golf Club, Inc.; Birmingham Title Services Corporation and Stewart Title Guaranty Company (hereinafter sometimes collectively referred to as “the title companies”). We affirm in part and reverse in part.

Facts

In July 1993, the Casseses purchased a lot in the Greystone subdivision in Shelby County. The lot they purchased was located adjacent to the 18th hole of the Greystone Golf Club. The Casseses had a residence constructed for them on the lot. After the Casseses had taken possession of this property, the Golf Club began hosting the “Bruno’s Golf Tournament.” Because of the location of the Casseses’ property, a portion of the tournament was conducted adjacent to their property. At some point in 1993, the Casseses orally agreed that the Golf Club could use a portion of the Casseses’ property during the Bruno’s tournament.

In 1994, the Casseses and the Golf Club entered into a written license agreement. This license agreement provided, in pertinent part:

“Grantors [the Casseses] desire to grant to Grantee [the Golf Club] a license on the terms and conditions hereinafter set forth to use a portion of the Lot lying directly adjacent to the Golf Club Property.
“1. Grant of License. Grantors do hereby grant, bargain, sell and convey to Grantee a [illegible] license to use a strip of land running along the rear property line of the Lot ... (the ‘License Property’)- The License Property shall be used only for the purposes specified in Paragraph 3 below, and, except as described in Paragraphs 2 and 3 below, no fences, landscaping, improvements or structures of any nature shall be erected, placed, installed or allowed to remain on the. -Easement License Property by either Grantors or Grantee.
“2. Maintenance of License Property. Grantee does hereby covenant and agree to (a) at all times maintain the License Property in good condition and repair as part of the golf course situated on the Golf Club Property and (b) install and maintain out of bound markers in appropriate locations on the License Property.
“3. Use of License Property.
“(a) The License Property and any portion thereof may be used by Grantee, its members, employees, agents, contractors, invitees and licensees as part of the golf course situated on the Golf Club Property for the play of golf, including, specifically, (i) for entry thereon by golfers and their caddies to play or remove golf balls therefrom and (ii) to conduct any of the maintenance activities described in Paragraph 2 above.
“(b) Subject to the provisions of Paragraph 6 below, the License Property may be used by Grantee, its members, employees, agents, contractors, invitees and licensees as a viewing area (whether for seating or standing) and for other uses in connection with and during any golf tournaments on the Golf Club Property including, without limitation, any golf tournaments sponsored or sanctioned by the Professional Golf Association, the United States Golf Association, the Senior Professional Golf Association or the Ladies Professional Golf Association (collectively, ‘Tournaments’). During any Tournaments Grantee covenants and agrees to install roping or screening on the License Property so as to restrict any public access to all remaining portions of the [illegible] lying outside the License Property.”

(Strikeout in original.)

In addition to the above-quoted provisions, the Golf Club also agreed to perform regular maintenance on that portion of the Casseses’ property to which the Golf Club was allowed access by the license agreement, to provide commercial general liability insurance covering that portion of the Casseses’ property, and to remove certain trees that were blocking the sight line from the Casseses’ property to the 18th hole of the golf course. The Golf Club also agreed to refrain from taking any action or making any improvements on the golf course that would impair the line of sight from the property to the 18th hole of the course. In addition, the license agreement provided in paragraph 6:

“The covenants, license, rights and obligations granted or created pursuant to this Agreement shall be and are appurtenant to and shall be deemed to be covenants running with the land and shall be binding upon and inure to the benefit of Grantors and Grantee and their respective heirs, executors, successors and assigns, forever; provided; however, that the license and use rights set forth in Paragraph 3(b) above shall automatically cease and terminate and be of no further force and effect on the date which is three (3) years from the date hereof unless otherwise extended by mutual agreement of Grantors and Grantee. This Agreement constitutes the entire Agreement between the parties hereto and may be amended and modified only by written instrument duly executed by the then owners of the Lot and the then owner of the Golf Club Property. The terms ‘Grantors’ and ‘Grantee’ as used herein shall include the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns.”

Neither the Casseses nor the Golf Club recorded this agreement in 1994, 1995, or 1996.

In January 1996, the Casseses listed their property for sale with RE/MAX Realty. Later that year, on December 10, 1996, the Golf Club and the Casseses executed a “First Amendment to the License Agreement.” That amendment provided:

“Grantors and Grantee have heretofore entered into a License Agreement dated as of March 22, 1994 (the ‘Agreement’) which has been recorded as Instrument No._in the office of the Judge of Probate of Shelby County, Alabama. Capitalized terms not otherwise expressly defined herein shall have the same meanings given to them in the Agreement.
“Grantors and Grantee desire to extend the term of the Agreement with respect to any Tournaments held on the Golf Club Property.
“1. Extension of Term. Notwithstanding anything provided in the Agreement to the contrary, Grantors and Grantee agree that the license and use rights set forth in Paragraph 3(b) of the Agreement shall continue in full force and effect for so long as any Tournaments are held on the Golf Club Property and any contrary provisions set forth in Paragraph 6 of the Agreement are hereby deleted.
“2. Full Force and Effect. Except as expressly modified and amended herein, all of the terms and provisions of the Agreement shall remain in full force and effect.”

(Blank in original later filled in by the parties.)

Less than a month after the amendment was executed, on January 5, 1997, the Boyces made an offer to purchase the Casseses’ property; the Casseses accepted this offer. However, the sales contract did not reference the license agreement between the Casseses and the Golf Club, and that contract did not reference the fact that the Golf Club was permitted to use a portion of the Casseses’ property. The Boyces claimed that they were not informed during the negotiations concerning the property of the existence of the license agreement and the amendment.

On January 8, 1997, Birmingham Title Services Corporation issued a title commitment in preparation for the closing on the property. According to Stewart Title Guaranty Company, Birmingham Title is a limited agent of Stewart, authorized to issue title policies in the name of Stewart Title. (Stewart Title Guaranty Company’s brief, at p. 5.) This title commitment did not reveal the existence of the license agreement or the amendment.

On Friday, January 24, 1997, the Golf Club recorded in the Shelby County Probate Office the license agreement executed in 1994 and the amendment to the license agreement executed in 1996. The following Tuesday, January 28, 1997, the Boyces obtained title to the property from the Casseses by a warranty deed. This warranty deed did not disclose or reference the license agreement or the amendment to that agreement; neither did the deed disclose or reference the Golf Club’s right to access or to use a portion of the property for its golf tournaments.

In March 1997, a title insurance policy was issued in the name of Stewart Title Guaranty Company. That policy indicated an effective date of March 14, 1997, and named the Boyces as “insureds.”

After taking possession of the property in mid-February 1997, the Boyces noticed that employees of the Golf Club were performing maintenance on the property. In March 1997, the Golf Club began setting up for the Bruno’s Golf Tournament. Boyce testified that, in preparing for the golf tournament, employees of the Golf Club placed the following on or over his property: bleachers, signs, broadcast towers, trailers, generators, televisions and telephone lines, and 30 to 40 portable toilets. Boyce testified that preparations for the tournament continued for approximately three months.

John Boyce, Sr., complained to the manager of the Golf Club about these activities occurring on his property, but no action was taken by either party. The Golf Club continued to access the Boyces’ property in connection with its golf tournaments during the period of 1998-2002. Boyce claimed that he continued to complain without success about the Golf Club’s use of his property.

The Boyces claimed that, in February 2003, they learned for the first time of the existence of a written license agreement between the Casseses and the Golf Club when he saw an employee of the Golf Club on his property holding a copy of a survey. The Boyces obtained a copy of the survey from the employee. The Boyces claimed that the survey, which apparently referenced the recorded license agreement, led to their discovery of the recorded license agreement a few weeks later.

In April 2002, the Boyces sued the Cass-eses, the Golf Club, and the title companies. The Boyces sought a judgment declaring that the license agreement and its amendment were void, and they requested a permanent injunction against the Golf Club enjoining the Golf Club from accessing or using their property; alternatively, they sought rescission of the purchase transaction against the Casseses. The Boyces also asserted that the agreements between the Casseses and the Golf Club created a license and that the Boyces had revoked that license. Against the Casses-es, the Boyces alleged fraudulent misrepresentation, fraudulent suppression, breach of the warranty deed, and conspiracy; the Boyces also sought indemnification under the warranty deed against the Cass-eses; against the Golf Club, the Boyces claimed trespass, nuisance, negligence and wantonness, fraudulent suppression, and conspiracy; against the title companies, the Boyces alleged negligence, wantonness, suppression, and breach of the title policy.

All of the defendants filed motions for a summary judgment. On December 14, 2004, the trial court entered an order declaring that the agreements between the Casseses and the Golf Club created an easement, as opposed to a license. The trial court also granted the Golf Club’s motion for a summary judgment on all claims, finding that “there is no evidence that [the Golf Club] was engaged in fraud, was negligent or conspired to commit any tort against [the Boyces] and such claims are also time barred.” The trial court’s order did not address the Boyces’ claims of trespass and nuisance asserted against the Golf Club.

The trial court also granted the Casses-es’ motion for a summary judgment as to all of the claims asserted against them. The trial court entered a summary judgment for the Casseses on the Boyces’ breach-of-warranty-deed claim, relying on the merger doctrine and finding that the warranty deed issued to the Boyces by the Casseses did not contain any promises regarding the grant of the property right— be it license or easement — made the basis of this case. The trial court concluded that the only cause of action available to the Boyces for the Casseses’ alleged failure to disclose the existence of the license agreement was for fraud. However, the trial court held that the Boyces’ fraud claim against the Casseses was time-barred.

Subsequently, on February 28, 2005, and without stating its reasoning, the trial court entered summary judgments in favor of the title companies. In this same order, the trial court also clarified that it had entered a summary judgment in favor of the Casseses as to all claims asserted against them. On March 4, 2005, the trial court amended its earlier order, clarifying that it had disposed of all claims asserted against all of the defendants in this matter.

The Boyces appealed, asserting that the trial court erred by entering summary judgments in favor of the Casseses, the Golf Club, and the title companies. The Boyces also assert that the trial court erroneously concluded that the agreement between the Casseses and the Golf Club created an easement rather than a license.

Standard of Review

“We review the trial court’s entry of a summary judgment de novo, and our standard of review is well settled.

“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’
“Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).”

Hollingsworth v. City of Rainbow City, 826 So.2d 787, 789 (Ala.2001).

Analysis

The parties disagree as to whether the agreement between the Casseses and the Golf Club created a license or an easement. The Boyces and the title companies contend that the agreement created a revocable license. The Golf Club argues that the agreement created an easement and that such easement ran with the land. The Casseses did not express an opinion on this issue but argue that they had no knowledge that the agreement would ere-ate an encumbrance on the property or that the agreement would be recorded. (Casseses’ brief, at p. 20.) The trial court concluded that the parties had created an easement. We review the general distinctions between easements and licenses to determine whether the agreement in this case created a license or an easement.

According to The Law of Easements and Licenses in Land:

“ § 1:4 — Fundamental difference
“A license is often defined as permission to do an act or a series of acts on another’s land that, absent authorization, would constitute trespass. Because permission is the voluntary grant of a personal privilege, the landowner may usually revoke consent at any time and thereby terminate the license. Given their revocable nature, licenses generally are not considered to reach the status of interests in land. In contrast, easements are irrevocable interests in land of potentially perpetual duration.
“Several distinctions flow from this fundamental difference. An express easement must be in writing to satisfy the Statute of Frauds; a license may be, and often is, given orally. Easement holders are entitled to protection from interference from third parties; licensees generally are not. Most easements are transferable; licenses are not transferable unless the parties intended otherwise.
“ § 1:5 Intent of parties
“All of the legal distinctions between easements and licenses mentioned in the preceding section only hint at how one can decide which right was created. The critical factor is the parties’ intent. The following elements are important in ascertaining intent:
“1. Manner of creation of right (oral or written). The mere granting of a right in writing does not automatically render it an easement.... [M]ore is required to create an easement. The existence or absence of words that are ‘ordinarily used in the conveyances of real estate’ is an important factor. The label that the parties give the right, however, does not dictate its legal effect. For example, a right called a lease may in reality be an easement or a license.
“2. Nature of right created. The creation of a right to be used in a particular portion of the servient estate indicates that an easement was intended. Likewise, the existence of authority in the holder of the right to maintain or improve the burdened property suggests an easement.
“3. Duration of right. A set duration indicates an easement. A grant in perpetuity also indicates an easement. Further, an express provision that the right benefits its holders’ successors and assigns supports the conclusion that an easement was intended. Similarly, an easement is indicated if the right expressly binds the servient landowner’s successors and assigns. Conversely, the deletion of words of succession may indicate a license. Finding an easement, however, does not depend upon the existence of ‘magic words such as “successors and assigns.” ’
“4. Amount of consideration, if any, given for right. Substantial consideration indicates an easement. In this regard, it is necessary to distinguish consideration given for the right from money expended in reliance upon the right. An ‘irrevocable license’ may result from expenditures made in reliance on an existing license.
“5. Reservation of power to revoke right. An express reservation of the power to cancel, revoke, or terminate the right may be considered to indicate a license. However, a power to terminate in the landowner does not necessarily mean that a license was created. Specifying a power to terminate for a particular reason or in limited circumstances may be seen as inconsistent with the unabridged right to revoke retained by one who grants a license. Moreover, an easement may be expressly subject to termination by the servient owner upon the occurrence of a specified event.”

Jon W. Bruce & James N. Ely, Jr., The Law of Easements and Licenses in Land (West Group 2001) (footnotes omitted).

Applying these factors to the instant case, we agree with the trial court that the Casseses and the Golf Club intended to create an easement. The agreement as amended contains words typical of a conveyance of an interest in land; the Golf Club was granted the right to use a portion of the property for golf tournaments in exchange for the promise to maintain and improve that property and to provide liability insurance covering the property during the tournaments; the agreement indicated that the rights and obligations granted in it were to run with the land and that they were binding upon the parties’ successors and assigns; and the Casseses, as the owner of the servient estate, did not reserve the right to cancel or terminate the Golf Club’s rights under the agreement. All of these factors indicate an intent to create an easement rather than a license. See Helms v. Tullis, 398 So.2d 253 (Ala.1981) (citing Powell, Powell on Real Property, §§ 407-413, recognizing that an easement may be created by contractual agreement). We affirm the summary judgment insofar as the trial court held that the agreement created an easement.

Whether the trial court erred in entering a summary judgment in favor of the Casseses on all claims.

The Boyces also appeal from the summary judgment entered in favor of the Casseses on the Boyces’ claims of fraudulent misrepresentation, fraudulent suppression, conspiracy, and breach of the warranty deed. We reverse the summary judgment on the breach-of-warranty-deed claim and the claim for indemnity. We affirm as to all other counts.

We first address the claims of fraudulent misrepresentation and suppression. The Boyces claimed that during the negotiations concerning the property, Mr. Cassese falsely represented that there were no encumbrances against the property of which the Boyces should be apprised. The Boyces also assert that Mr. Cassese failed to disclose the fact that he and his wife had just executed the amendment to the license agreement, which would encumber the property and bind the Boyces, if they purchased the property.

. The trial court entered a summary judgment in favor of the Casseses on the fraud and suppression claims, holding (1) that upon the closing, all representations and negotiations between the parties merged into the deed and the deed became the sole memorial of any agreement made by the parties, and (2) that the Boyces’ fraud and suppression claims were time-barred by § 6-2-38, Ala.Code 1975 (providing a two-year statute of limitations applicable to fraud actions) and by § 6-2-3, Ala.Code 1975, because the Boyces’ did not assert those claims within two years of discovering the facts allegedly constituting the fraud.

This Court has recognized that “[ajbsent fraud or mistake, when a contract to sell or convey land is consummated by execution and delivery of a deed, that contract becomes ‘functus officio’ and the deed becomes the sole memorial of the parties’ agreement.” Swanson v. Green, 572 So.2d 1246, 1248 (Ala.1990) (footnotes omitted). We agree with this principle, known as the “merger doctrine.” However, we need not apply it in this case because, as discussed below, the Boyces’ misrepresentation and suppression claims are barred by the applicable statute of limitations and we therefore cannot reach the question whether there was fraud so as to negate the application of the merger doctrine.

The Boyces’ claims of fraudulent misrepresentation and fraudulent suppression are subject to a two-year statute of limitations. Ala.Code 1975, § 6-2-38(i); Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000). However,

“[t]hat statute of limitations is subject to the ‘saving clause’ provided by § 6-2-3:
“ ‘In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.’ ”

Seabol, 782 So.2d at 216. However, our analysis of this issue is also impacted by Ala.Code 1975, § 35-4-90(a), which provides:

“All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”

We have also recognized:

“Under Ala.Code 1975, § 35-4-90, the proper recordation of an instrument constitutes ‘conclusive notice to all the world of everything that appears from the face’ of the instrument. Thus, purchasers of real estate are ‘presumed to have examined the title records and knowledge of the contents of those records is imputed [to them].’ ”

Haines v. Tonning, 579 So.2d 1308, 1310 (Ala.1991) (quoting Christopher v. Shockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917), and Walker v. Wilson, 469 So.2d 580, 582 (Ala.1985)).

It is undisputed that the Golf Club recorded the license agreement and the amendment to the license agreement on January 24, 1997, a few days before the Boyces acquired their interest in the property. Because the agreement was recorded at the time the Boyces obtained title to the property, they are charged with notice of the recorded agreement as of that time. This action was filed in April 2002, more than five years after the Boyces obtained title to the property and, more than five years after the Boyces are charged with notice of the encumbrance against their property. For this reason, the Boyces’ claims of fraudulent misrepresentation and fraudulent suppression against the Casses-es are time-barred.

We next address the Boyces’ claim that the Casseses conspired with the Golf Club “to omit material facts from the public and, specifically from the [Boyces], by wrongfully withholding and not promptly recording the License and License Amendment to place prospective purchasers, like the [Boyces], on notice of any encumbrance on the property by Greystone, following notice of the sale.” We have concluded that the Boyces’ claims of fraudulent misrepresentation and fraudulent suppression are time-barred. For the same reasons, the Boyces’ conspiracy claims against the Casseses are time-barred. See § 6-2-38, Ala.Code 1975 (two-year statute of limitations applicable to fraud and conspiracy actions); Kelly v. Alexander, 554 So.2d 343, 344 (Ala.1989) (“Because the conspiracy to defraud claim is dependent upon the underlying fraud, the statute of limitations on that claim began to run at the same time as did the statute for the underlying fraud claim.”), overruled on other grounds, Ford Motor Co. v. Neese, 572 So.2d 1255 (Ala.1990). We affirm the summary judgment on the conspiracy claim against the Casseses.

We next address the Boyces’ claims that the Casseses breached the warranty. Alabama Code 1975, § 35-4-271, provides:

“In all conveyances of estates in fee, the words ‘grant,’ ‘bargain,’ ‘sell’ or either of them, must be construed, unless it otherwise clearly appears from the conveyance, [as] an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incum-brances done or suffered by the grantor, except the rents and services that are reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by the express words of such conveyance; and the grantee, his heirs, personal representatives, and assigns may, in any action, assign breaches, as if such covenants were expressly inserted.”

The warranty deed by which the Casses-es conveyed the property to the Boyces provided:

‘We do, for ourselves and for our heirs, executors and administrators, covenant with said grantee, their heirs and assigns, that we are lawfully seized in fee simple of said premises; that they are free from all encumbrances, unless otherwise stated above; that we have a good right to sell and convey the same as aforesaid; that we will, and our hems, executors and administrators shall, warrant and defend the same to the said grantee, their heirs and assigns forever, against the lawful claims of all persons.”

This deed was executed on January 28, 1997. It is undisputed that the warranty deed made no exception for or reference to the license agreement or to the amendment to the license agreement.

Thus, the Boyces presented substantial evidence indicating that, at the time the Casseses conveyed the property to them, the Casseses were not “lawfully seized in fee simple .... free from all encumbrances” and the Casseses did not disclose in the deed the encumbrance created by the license agreement and the amendment to the license agreement. This evidence raises a genuine issue of material fact regarding the Boyces’ claim that the Casses-es breached the warranty in their deed. We conclude that the trial court’s summary judgment for the Casseses on this claim was improper.

Claims Against the Golf Club

Against the Golf Club, the Boyces alleged trespass, nuisance, wantonness, fraudulent suppression, and conspiracy. We readily dispose of the Boyces’ claim that the Golf Club fraudulently suppressed from them the existence of the license agreement “in an attempt to escape any effect the Licenses may have on the marketability of the Property.” For the same reasons that the Boyces’ claims of fraudulent misrepresentation and fraudulent suppression against the Casseses are time-barred, the Boyces’ claim of suppression against the Golf Club is also time-barred. See § 6-2-38, Ala.Code 1975.

As of January 24, 1997, the date the Golf Club recorded the license agreement and the amendment, the Boyces were charged with constructive knowledge of that agreement and the encumbrance against the property that that agreement created. On January 28, 1997, four days after the Golf Club recorded the license agreement and the amendment, the property was conveyed to the Boyces. Pursuant to Alabama statute, this recordation is deemed constructive notice to the world of the license agreement and the amendment. Thus, the Boyces cannot now complain that the Golf Club suppressed from them the existence of the license agreement when that agreement was publicly and properly recorded four days before the Boyces purchased the property. Because they did not file their fraud claim against the Golf Club within the two-year limitations period, that claim is now time-barred. We affirm the trial court’s summary judgment as to the fraudulent-suppression claim against the Golf Club.

We also affirm the summary judgment entered on the Boyces’ conspiracy claim against the Golf Club. The Boyces alleged that the Casseses and the Golf Club conspired to withhold material information from the public, and particularly from prospective purchasers of the Casseses’ property. Because we have already concluded that the Boyces’ conspiracy claim against the Casseses is time-barred, for the same reasons that same claim is time-barred against the Golf Club.

We next address the Boyces’ claims of negligence and wantonness against the Golf Club. In their amended complaint, the Boyces alleged that the Golf Club negligently and wantonly failed to record the license agreement and the amendment until January 1997. Like fraud claims, negligence and wantonness claims are governed by a two-year statute of limitations. See § 6-2-38, Ala.Code 1975. The Boyces did not file their action until April 2002, although they are alleging that the Golf Club acted negligently or wantonly before January 1997. The Boyces’ claims of negligence and wantonness are time-barred, and the trial court properly entered a summary judgment for the Golf Club on these claims.

We also affirm the summary judgment in favor of the Golf Club as to the Boyces’ claims alleging trespass and nuisance. In their trespass claim, the Boyces allege that the Golf Club allowed persons attending golf tournaments and playing golf at the Golf Club to enter the Boyces’ property improperly. The Boyces claim that this entry was without their permission and without any other right to enter.

This trespass claim fails as a matter of law. A trespass to property is a wrong against the right of possession or entry. Jefferies v. Bush, 608 So.2d 361, 362 (Ala.1992); AmSouth Bank v. City of Mobile, 500 So.2d 1072 (Ala.1986). If a party enters property or possesses property under a legal right, entry or possession pursuant to that right cannot constitute a trespass.

As stated above, the license agreement granted the Golf Club the legal right to use a portion of the Casseses’ property in connection with golf tournaments held at the Golf Club and granted persons playing golf at the Golf Club the right to enter the property for certain specified purposes. Once this agreement was properly recorded, the Golf Club’s rights under the agreement were preserved as against subsequent purchasers, including the Boyces. Because the Golf Club had authority to enter the property and the Boyces do not allege that the Golf Club exceeded that authority, the Boyces’ claim of trespass fails as a matter of law.

The Boyces also asserted a nuisance claim, alleging that the Golf Club’s periodic use of their property caused the Boyces’ use and enjoyment of the property to be diminished and caused them to suffer emotional distress and mental anguish. Alabama Code 1975, § 6-5-120, provides:

“A ‘nuisance’ is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.”

In Borland v. Sanders Lead Co., 369 So.2d 528 (Ala.1979), this Court observed that determining whether the invasion of a property interest is a trespass or a nuisance requires an analysis of the interest interfered with. “If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies.” 369 So.2d at 529. The Court in Borland also noted that conduct that rises to the level of a trespass would, generally .speaking, support a nuisance action; however, the converse is not always true. 369 So.2d at 529 n. 1.

In this case, the Golf Club’s legal authority to enter onto the Boyces’ land would bar the Boyces’ trespass claim but not necessarily bar their nuisance claim. Although the Golf Club had the right to enter and use the Boyces’ property for a limited purpose, evidence might establish that the Golf Club had exceeded that purpose to the point of intruding on the Boyces’ right to use and enjoy their property. However, the Boyces did not argue this issue in their briefs, and we, therefore, cannot address on appeal their nuisance claim. See Tucker v. Cullmaru-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988))).

Claims Against the Title Companies

The Boyces allege that the title companies negligently or wantonly failed to inform them of the existence of the recorded license agreement and negligently or wantonly performed their contractual duties in searching the records of the probate court. The Boyces also allege that the title companies suppressed from the Boyces the existence of the recorded license agreement and that the title companies breached the title insurance policy issued to the Boyces. Without explaining its rationale, the trial court granted the title companies’ motions for summary judgment. We address each of these claims in turn.

We readily dispose of the Boyces’ negligence and wantonness claims against both Stewart Title Guaranty Company and Birmingham Title Services Corporation, because those claims are barred by the two-year statute of limitations established in § 6-2-38, Ala.Code 1975. Because the license agreement and the amendment were recorded when title to the property was conveyed to the Boyces, the Boyces were charged with constructive notice of those recordings as of the date they purchased the property—January 28, 1997. Therefore, they had two years from that date to bring their negligence and wantonness claims. Because the Boyces did not assert those claims until April 2002, those claims are time-barred.

The Boyces’ suppression claim against the title companies is also governed by a two-year statute of limitations. As discussed above, because the license agreement and the amendment had been recorded before the date the Boyces obtained title to the property, they are charged with constructive notice of that recording. The two-year limitations period applicable to the suppression claim began to run on that date. The Boyces did not assert their suppression claim against the title companies until some five years after that claim accrued; that claim is time-barred, and the summary judgment for the title companies on that claim is affirmed.

Next, the Boyces assert a breach-of-contract claim against both title companies. They allege that the title companies breached the title insurance policy issued to the Boyces because that policy did not reveal the existence of the recorded license agreement or the recorded amendment to the license agreement. We briefly review the facts relevant to this claim.

On January 8, 1997, Birmingham Title Services Corporation issued a title commitment in preparation for the closing on the property. This title commitment named the Boyces as the “proposed insureds” and stated that an “ALTA Owners Policy” was to be issued in the amount of the purchase price. The title commitment identified certain requirements to be complied with before the policy would be issued and identified certain exceptions that would or could be contained in Schedule B of the policy. Under the heading of “Exceptions,” the title commitment provided:

“Schedule ‘B’ of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company:
“Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof, but prior to the date the proposed insured acquires for value or record the estate or interest or mortgage thereon covered by this Commitment.”

The title commitment then outlined the “Standard Exceptions” that would be included in the title policy.

On March 14, 1997, Birmingham Title Services Corporation issued a title policy in the name of Stewart Title Guaranty Company. The policy was issued with an effective date of March 14, 1997, and named the Boyces as the “insureds.” The title policy provided, in pertinent part:

“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, STEWART TITLE GUARANTY COMPANY, ... insures, as of Date of Policy shown in Schedule A, against loss or damage ...:
“1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
“2. Any defect in or lien or encumbrance on the title;
“3. Unmarketability of the title;
“4. Lack of a right of access to and from the land.
“EXCLUSIONS FROM COVERAGE
“The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys’ fees or expenses which arise by reason of:
“3. Defects, liens, encumbrances, adverse claims or other matters:
“(a) created, suffered, assumed or agreed to by the insured claimant;
“(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company, by the insured claimant prior to the date the insured claimant became an insured under this policy;
“(c) resulting in no loss or damage to the insured claimant;
“(d) attaching or created subsequent
to Date of Policy; or
“(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy.”

Schedule B of the title policy provides, in pertinent part:

“This policy does not insure against loss or damage ... which arises by reason of:
“1. Easements or claims of easements, not shown by the public records.”

Additionally, the title policy provided that it was “a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described.”

The Boyces rely on Ex parte Steadman, 812 So.2d 290 (Ala.2001), and Parker v. Ward, 614 So.2d 975 (Ala.1993), in alleging that title companies have a “contractual duty to search [the title] records and to disclose to its insured a defect in the title that those records contained.” Parker, 614 So.2d at 978. They allege that on the date the title policy was issued, the license agreement and the amendment had been recorded but that the existence of that agreement and amendment is not disclosed in the title policy or excepted or excluded from the coverage of the policy. Therefore, the Boyces argue, the title companies failed to do what they contracted to do, and they are in breach of their title policy.

In Parker v. Ward, this Court stated: “ ‘[a] defect in title exists when the aggregate of rights, privileges, powers and immunities known as ownership [fee simple title] is subject to the claims of others.’ ” 614 So.2d at 977 (quoting Title Insurance: The Duty to Search, 71 Yale L.J. 1161, at 1161 (1962)). The Parker Court also stated:

“A title insurance company has an obligation to answer for any loss due to a defect in a title if it has not excepted that defect from its coverage. It cannot escape liability when it does not except a defect that is a matter of public record. It is generally assumed that a title defect that appears in the public records but that is not noted is covered by a title policy.
“Commentators have urged, and some courts have held, that a title company, in the absence of an express promise to search title, has an implied duty to search the title and disclose any defect found upon the public record. Because the policy itself insures against loss or damage from defects in the title, subject to certain exceptions set out in the policy, it necessarily follows that it insures against any defect that it is a matter of public record if that defect is not excepted from the coverage.”

614 So.2d at 977 (footnotes citing Q. Johnstone, Title Insurance, 66 Yale L.J., 492 at 492 (1957), and Title Insurance: The Duty to Search, 71 Yale L.J. at 1166 n. 32, omitted).

After reviewing the language of the title policy and construing the evidence presented to the trial court in a light favorable to the Boyces, see Hollingsworth v. City of Rainbow City, 826 So.2d 787 (Ala.2001), we conclude that the summary judgment in favor of Stewart Title Guaranty Company on the Boyces’ breach-of-title-policy claim was improper. The Boyces have presented substantial evidence indicating that a valid and binding contract of title insurance was issued in the name of Stewart Title Guaranty Company; that this contract of title insurance named the Boyces as the insureds; that the Boyces paid a consideration for that policy; and that the policy issued to the Boyces failed to disclose a recorded encumbrance against the property. If the Boyces establish that they have been damaged as a result of this undisclosed recorded encumbrance, they are entitled to indemnity by the title insurer. Therefore, we reverse the summary judgment entered in favor of Stewart Title Guaranty Company on the breach-of-contract claim, and we remand this cause to the trial court for further proceedings against Stewart Title consistent with this opinion.

However, we affirm the summary judgment entered in favor of Birmingham Title Services Corporation on the breach-of-contract claim. The Boyces have not alleged or established that Birmingham Title issued the title policy in its own name or that Birmingham Title intended to bind itself to the contract of title insurance. “ ‘The general rule in Alabama concerning liability of an agent for the breach of contract entered on behalf of a disclosed principal is that the agent binds either the principal or himself to the contract, but not both.’ Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126, 1129 (Ala.1992) (quoting Shirley v. Lin, 548 So.2d 1329, 1333 (Ala.1989)).

Because it has not been established that Birmingham Title acted as anything other than an agent for Stewart Title, the Boyces have not established that Birmingham Title could be liable for breach of that policy. We affirm the summary judgment entered in favor of Birmingham Title.

Conclusion

As to the Casseses, we affirm the summary judgment entered on the Boyces’ claims of fraudulent misrepresentation, fraudulent suppression, and conspiracy; we reverse the summary judgment on the Boyces’ claim alleging a breach of the warranty deed. As to the Golf Club, we affirm the summary judgment in all respects. As to Birmingham Title Services Corporation, we affirm the summary judgment on all claims asserted against it. As to Stewart Title Guaranty Company, we affirm the summary judgment on the claims of negligence, wantonness, and fraudulent suppression, and we reverse the summary judgment on the claim of breach of the title policy. We remand this case for further proceedings consistent with this opinion.

APPLICATION OF BIRMINGHAM TITLE SERVICES CORPORATION GRANTED; APPLICATION OF STEWART TITLE GUARANTY COMPANY OVERRULED; OPINION OF JANUARY 13, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Although other golf tournaments are also subject to the agreement at issue here, we mention the Bruno's Golf Tournament only because that is the tournament that gave rise to the license agreement at issue in this case.

      . The Boyces argue that the statute of limitations on their negligence and wantonness claims against the title companies was tolled until they discovered the existence of the recorded license agreement. This argument is meritless. Under the facts of this case, which involves the recordation statute, the Boyces are charged with constructive notice from the date the document was recorded. Additionally, we point out that Alabama has no "discovery rule” with respect to negligence or wantonness actions that would toll the running of the limitations period. See Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala.1993).


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Johnny F. NESBITT and Jan Nesbitt v. Charlie FREDERICK, Jr., et al.
    1040060.
    Supreme Court of Alabama.
    May 5, 2006.

      Carl E. Chamblee, Jr., of Chamblee, Malone & Associates, L.L.C., Birmingham, for appellants.
    Mark D. Hess and John H. McEniry IV of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellees Charlie Frederick, Jr., and Jo Anne Frederick.
    Harold A. Bowron III and C. Peter Bol-vig of Hall, Conerly & Bolvig, P.C., Birmingham, for appellees Ann McNew and McNew Appraisal Services.
   SMITH, Justice.

The plaintiffs below, Johnny F. Nesbitt and Jan Nesbitt, appeal from a summary judgment in favor the of the defendants Charlie Frederick, Jr., and Jo Anne Frederick on the Nesbitts’ claims alleging fraudulent misrepresentation and fraudulent suppression, and in favor of the defendants Anne McNew and McNew Appraisal Services (hereinafter collectively “McNew”) on the Nesbitts’ claims alleging negligent, reckless, and innocent misrepresentation.

I. Factual Background and Procedural History

In 1987, the Fredericks built a one-story house with an unfinished basement. The house was designed so that “backfill” or dirt covered the rear of the house to the height of the basement. Charlie Frederick testified that during construction a backhoe operator started “backfilling” one of the basement walls before the concrete blocks had “set.” The backfilled material applied pressure to the wall, causing it to tilt slightly. To remedy the problem, the contractor installed a series of angle iron braces against the interior basement wall.

In 2000, the Fredericks decided to sell their house. They listed it with Veronica Stephens, a licensed real-estate agent. Around October 2000, the Nesbitts, who were interested in buying a house, and their realtor, Janice Johnsey, viewed the Fredericks’ house. The Nesbitts viewed the house four times before ultimately purchasing the house, the last visit being the “walk through” immediately before the closing.

The Nesbitts first viewed the house in October 2000. The Nesbitts testified that they were immediately impressed with the house and that they did not notice any problems with its structural stability. When the Nesbitts were in the basement, Johnny saw the braces, and he asked Johnsey to find out why the braces had been installed. Johnny testified that John-sey later told him that the braces had been installed when the house was built. Johnny also testified that this was the only information Johnsey gave him about the braces. Johnny could not say with certainty when he received this information, but he said that it was possible that it was before his second visit to the house. John-sey testified that she telephoned Stephens after discussing the braces with Johnny. Johnsey testified that Stephens told her that the braces were installed “in homes like that” and that they were “just added reinforcement.” Johnsey also testified that she “believed” she relayed this information back to Johnny. Stephens testified that she spoke with Johnsey about the braces and that she told Johnsey that the braces “were put there as a precautionary measure ... just to reinforce.”

The Nesbitts’ second visit to the house occurred the weekend after the first visit. In addition to Johnsey, the Nesbitts brought the following people with them to view the house: Brian Nesbitt, their adult son; Don Mathews, a friend of the Nes-bitts and a paint contractor; and Janice Johnsey’s husband. Johnny testified that he brought these people to view the house in order to get their opinion about the house. Each person that viewed the house on that visit indicated that he or she was satisfied with its condition. The Nesbitts visited the house a third time to discuss purchasing the Fredericks’ television and entertainment center.

On November 27, 2000, the Nesbitts made a written offer to purchase the Fred-ericks’ house. On December 1, 2002, the Fredericks and the Nesbitts entered into a contract pursuant to which the Fredericks would sell their house to the Nesbitts for $160,000. The following portions of the sales contract entered into between the Nesbitts and the Fredericks are relevant to the issues raised in this appeal:

“10. NECESSITY OF INSPECTION: Buyer acknowledges and agrees that Alabama law imposes a duty on Buyer to thoroughly inspect a property, for defects or otherwise, in accordance with the terms of this contract and prior to closing the sale. Buyer further acknowledges and agrees that he/she is aware that professional inspection services and/or contractors may be engaged for this purpose and that RealtySouth [] and its sales associates strongly recommend the use of such professionals.... After dosing of this sale, all conditions of the property are the responsibility of the purchaser.
“11. CONDITION OF THE PROPERTY: Neither seller nor broker nor any sales associate makes any representations or warranties regarding condition of the property except to the extent expressly set forth herein. Buyer has the obligation to determine any and all conditions of the property material to Buyer’s decision to buy the property, including but not limited to, ... the roof and basement, including leaks therein; ... construction materials and workmanship; [and] structural condition.... Note: Lenders and/or public authorities may require certain investigations such as termite and septic tank inspections (for which repairs may be required), BUT THIS DOES NOT REPLACE BUYER’S DUTY TO THOROUGHLY INSPECT THE PROPERTY PRIOR TO CLOSING.
“(A) Buyer agrees to accept the property in ‘AS IS’ condition, including ordinary wear and tear to the closing. Seller gives no warranties on any systems or appliances being in good working order either now or at the time of closing and in consideration for this sales price, Buyer accepts total responsibility for all repairs, improvements, and/or defects in the property. Walk-through will be to determine only that no further deterioration other than ordinary wear and tear has occurred.
“(B) Buyer has inspected the property, either personally or through others of Buyer’s choosing, and, without relying on any representation or warranty from Seller or Broker or any sale associate or any printed or written description of the property, accepts the property in its present ‘AS IS’ condition, including ordinary wear and tear to closing, except that Seller agrees to (1) deliver the heating, cooling, plumbing, electrical systems and built-in appliances in normal operating condition at the time of closing....
“12. WALK-THROUGH INSPECTION: Buyer has the right and the
responsibility to walk through and inspect the property prior to closing and notify Seller immediately if the property is not in the condition agreed under [‘B’]. This inspection is intended only to verify that the terms of Paragraph 11 have been met. If the Buyer fails to conduct this inspection, Seller’s repairs and maintenance obligations will be deemed fulfilled.... After closing, all conditions of the property are the responsibility of the Buyer.
“21. ENTIRE AGREEMENT: This contract constitutes the. entire agreement between Buyer and Seller regarding the property, and supersedes all prior discussions, negotiations and agreements between the Buyer and Seller, whether oral or written. Neither Purchaser, Seller, Broker, nor any sales associate shall be bound by any understanding, agreement, promise, or representation concerning the property, expressed or implied, not specified herein.”

(Capitalization and other emphasis in original.)

The Nesbitts applied for a mortgage loan with Countrywide Home Loans, Inc. (“Countrywide”), to pay for a portion of the purchase price. Countrywide contracted with McNew to conduct an appraisal of the house. McNew appraised the house and prepared an appraisal report, dated January 28, 2001, estimating the value of the house to be $160,000. The appraisal report stated that the appraisal was prepared to provide an estimate of the market value of the house and that it was not an opinion of the structural condition of the house.

The Nesbitts visited the house a fourth time before the closing to conduct a “final walk-through.” The Nesbitts visited the house with Johnsey and their son, Brian. Johnny testified that he was satisfied with the condition of the house after inspecting it during the final walk-through. The Nesbitts decided not to hire a professional home inspector to inspect the house before closing.

On April 6, 2001, the Nesbitts closed on the house. The Nesbitts allege that after they moved into the house, they began to notice structural problems. The Nesbitts hired David Carlysle, a home inspector, to perform a professional inspection of the house. Carlysle’s inspection report states that there is evidence of the “foundation wracking forward” and evidence indicating that various cosmetic repairs had been undertaken in an attempt to correct the structural problems.

On June 26, 2002, the Nesbitts sued the Fredericks in the Jefferson Circuit Court, alleging fraudulent misrepresentation, fraudulent suppression, and negligence. The claims were based on the Nesbitts’ allegation that the Fredericks failed to disclose a structural defect in the basement foundation wall where the braces were located and that this defect had caused the house to shift, resulting in structural problems. On December 3, 2002, the Nesbitts amended their complaint to add McNew as a defendant. The amended complaint alleged that in the appraisal report McNew misrepresented the condition of the house.

The Fredericks filed a motion for a summary judgment on May 26, 2004, and McNew filed a motion for a summary judgment on May 28, 2004. The trial court granted both motions, and the Nes-bitts appealed.

II. Standard of Review

The standard of review for the grant or denial of a summary-judgment motion is as follows:

“ ‘We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002).

III. Propriety of the Summary Judgment

A. The Fredericks

The Nesbitts appeal only as to their claims against the Fredericks alleging fraudulent misrepresentation and fraudulent suppression.

An essential element of fraudulent-misrepresentation and fraudulent-suppression claims is a duty to disclose. Ala-bama has abrogated the rule of caveat emptor in the sale of a new house; however, the rule still applies to the sale of a “used” house. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Blaylock v. Cary, 709 So.2d 1128, 1130 (Ala.1997); and Ray v. Montgomery, 399 So.2d 230, 233 (Ala. 1980). Thus, a seller of used residential real estate ordinarily has no duty to disclose to the purchaser any defects in the property. Moore, 849 So.2d at 923; Blaylock, 709 So.2d at 1130; and Cato v. Lowder Realty Co., 630 So.2d 378, 382 (Ala.1993).

This Court has recognized exceptions to the application of the caveat emptor rule as it applies to the sale of used residential real estate. If a fiduciary relationship exists between the buyer and the seller, then the seller has a duty to disclose known defects. § 6-5-102, Ala.Code 1975. See also Moore, 849 So.2d at 923; and Commercial Credit Corp. v. Lisenby, 579 So.2d 1291, 1294 (Ala.1991). If the seller “ ‘has knowledge of a material defect or condition that affects health or safety and the defect is not known to or readily observable by the buyer,’” then the seller has a duty to disclose the defect. Moore, 849 So.2d at 923 (quoting Fennell Realty Co. v. Martin, 529 So.2d 1003, 1005 (Ala.1988)). The Nesbitts conceded in the trial court that these exceptions do not apply to the facts of this case.

A third exception to the caveat emptor rule in the sale of used residential real estate arises “ ‘if the buyer specifically inquires about a material condition concerning the property.’ ” In that situation, “ ‘the seller has an obligation to disclose known defects.’ ” Moore, 849 So.2d at 923 (quoting Commercial Credit Corp., 579 So.2d at 1294). The Nesbitts argue that this “specific inquiry” exception to the rule of caveat emptor applies in this case because, they say, they specifically inquired about the braces installed in the basement, which, they say, had been installed in an attempt to correct the structural defect that ultimately caused the house to shift. They further argue the Fredericks breached the duty to disclose by not informing the Nesbitts of this defect when they inquired about the braces. The duty to disclose arising from the specific-inquiry exception to the rule of caveat emptor is the basis of their fraudulent-misrepresentation and fraudulent-suppression claims against the Fredericks.

The Nesbitts ask this Court to overrule a line of Alabama cases holding that “[w]here a purchaser’s direct inquiry would otherwise impose a duty of truthful disclosure, this Court has held that a purchaser’s fraud claim is precluded by language in a sales contract stating that the purchase is ‘as is.’ ” Moore, 849 So.2d at 924 (citing Leatherwood v. Baker, 619 So.2d 1273, 1274-75 (Ala.1992); Haygood v. Burl Pounders Realty, Inc., 571 So.2d 1086, 1089 (Ala.1990); and Massey v. Weeks Realty Co., 511 So.2d 171, 173 (Ala.1987)). However, we decline to address this argument because we find that the Nesbitts have failed to present sufficient evidence to overcome the Fredericks’ summary-judgment motion on their claims of fraudulent misrepresentation and fraudulent suppression.

The Nesbitts argue that although the rule of caveat emptor applies in the sale of used residential real estate, the Fredericks had a duty to reveal truthful information when the Nesbitts specifically inquired about the braces that had been installed in the basement. The Nesbitts allege that the response to their inquiry about the braces amounted to fraudulent misrepresentation and that the Fredericks’ failure to disclose that the braces had been installed during construction to remedy the problems caused by premature backfilling amounted to fraudulent suppression.

1.

To survive a motion for a summary judgment on a claim of fraudulent misrepresentation, the Nesbitts

“needed to establish the existence of a genuine issue of material fact as to four elements: ‘ “(1) a false representation, (2) concerning a material existing fact, (3) [reasonably] relied upon by the plaintiff (4) who was damaged as a proximate result.” ’ Fisher v. Comer Plantation, Inc., 772 So.2d 455, 463 (Ala.2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)). See also Foremost Ins. Co. v. Parham, 693 So.2d 409, 4221 (Ala

Moore, 849 So.2d at 923.

Johnny testified that the only information Johnsey related to him concerning the braces was that the braces were installed when the house was built. There is no evidence from the record that this statement is false. In fact, the evidence in the record demonstrates that the braces were indeed installed when the house was constructed. Although Johnsey testified that Stephens told her that the braces were installed “in homes like that” and they were “just added reinforcement” and although Stephens testified that she told Johnsey the braces “were put there as a precautionary measure ... just to reinforce,” the Nesbitts could not have relied on these statements in light of Johnny’s testimony that the only thing he was told about the braces was that they were installed when the house was built. Therefore, the Nesbitts have failed to present sufficient evidence to create a genuine issue of material fact as to their claim of fraudulent misrepresentation based upon the information communicated to them about the braces.

£

Under this Court’s holding in Hope v. Brannan, 557 So.2d 1208 (Ala.1989), the Nesbitts have also failed to present evidence creating a genuine issue of material fact as to their claim of fraudulent misrepresentation or fraudulent suppression. In Hope, Jimmy Hope and Susan Hope decided to purchase a 58-year-old house owned by the James Brannan and Jane Brannan. The sales contract entered into between the Hopes and the Brannans stated the following:

“ ‘No oral- statement, representation, promise or inducement shall have any validity or effect nor shall be a part of this agreement unless specifically written in the agreement. Salesperson and listing agent do not warrant or guarantee, either express or implied, this property, any of the equipment or appliances contained therein, any improvements thereon, the lot or house size or dimensions, the age or square footage of the house, any of the systems used on the property including but not limited to electrical and those used to heat or cool the house, sewer or septic tank availability or condition, or plumbing but to the contrary, the Purchaser represents to the salesperson and the listing agents that Purchaser has personally inspected the premises to their satisfaction and rely solely thereon. Furthermore, Purchaser has inspected the property and improvements without relying on any representation or warranty or- any printed or written description of the property and improvements from Seller or any sales person or listing agent.’

557 So.2d at 1209-10.

When the Hopes and the Brannans met, the Brannans gave the Hopes a “termite bond” and a “termite letter” stating that the house had been treated for termites. The Hopes also stated that when they visited the house they asked William F. Davis, the real-estate agent showing them the house, about the age of the roof, the plumbing, and the wiring and whether there were termites., The Hopes contended that Davis told them that the roof was two years old, that the plumbing and wiring were recent, and that there were no termites. The Hopes claimed that based upon these representations, they purchased the house without further inspection. 557 So.2d at 1210.

After the Hopes moved into the house, they discovered various problems with the house, including broken windows, rotten trim, and a termite infestation; they also discovered that a part of the roof was at least 15 years old and that the closet in the master bedroom was damaged. The Hopes sued the Brannans, Davis, and the real-estate agency alleging both fraudulent misrepresentation and fraudulent suppression. In determining whether a summary judgment for the defendants on their fraud claims was proper, the Court first set out the general rule that the doctrine of caveat emptor applies to the sale of used residential real estate and that “a purchaser may protect himself by express agreement in the contract of sale.” 557 So.2d at 1210-11 (citing Ray v. Montgomery, 399 So.2d 230 (Ala.1980)). The Court held:

“With ordinary diligence, the Hopes could have discovered any problems with the house. The Brannans did not prevent the Hopes from inspecting the house before' it was sold. The Hopes had ample opportunity to inspect for any damage, and their failure to inspect negates a finding of actionable fraud under these facts. Ray v. Montgomery, supra; Marshall v. Crocker, 387 So.2d 176 (Ala.1980).
“... The Hopes’ failure to inspect the house before purchasing it cannot insulate them from the application of the doctrine of caveat emptor; therefore, the maxim volenti non fit injuria applies.”

557 So.2d at 1211.

The Hopes argued that the specific-inquiry exception applied, giving rise to a duty to disclose, and that the application of this exception defeated the provisions of the sales contract. However, the Court held that, “in the facts of this case, the Hopes cannot overcome their neglect in failing to inspect the house” by relying on the specific-inquiry exception and that “because the Hopes neglected to inspect the house themselves, they cannot take advantage of’ the specific-inquiry exception to the rule of caveat emptor. 557 So.2d at 1211. Therefore, the Court affirmed the trial court’s summary judgment on the Hopes’ claims of fraudulent misrepresentation and fraudulent suppression.

The sales contract in the present case is similar to the sales contract in Hope. The contract not only stated that the property was purchased “as is,” but also imposed “a duty on Buyer to thoroughly inspect [the] property, for defects or otherwise.... ” The contract stated that before the closing the buyer had “the right and the responsibility to walk through and inspect the property ... and notify Seller if the property [was] not in the condition” agreed upon. In addition, the sales contract stated that after the closing “all conditions of the property are the responsibility of the Buyer.” Further, the sales contract also explicitly stated that the buyer was not relying on any representations or warranties regarding the condition of the property, and that the buyer had “the obligation to determine any and all conditions of the property material to [their] decision to buy the property, including ... structural condition.” Lastly, the contract stated that the buyer “has inspected the property” and “without relying on any representation or warranty” of .the seller accepts the condition of the property. The Nesbitts testified that they read and fully understood the provisions of the sales contract.

Like the Hopes, the Nesbitts could have discovered any defects in the property through ordinary diligence. The home-inspection report submitted by the Nes-bitts in opposition to the summary-judgment motions reveals that the Nesbitts could have discovered the alleged defects in the property upon a diligent inspection. The report details possible problems with the structure of the house: door frames were visibly “wracked” forward; brick veneer was cracked and “lifting”; mortar columns were cracked; the brick above the garage door was visibly cracked; various interior walls were visibly cracked; exteri- or bricks were misaligned; floor joists were bowing and rotating; and the hardwood flooring in the kitchen had “separations.” Further, Johnny testified that the problems with the floor joists would have been visible when he inspected the house but that he “did not notice any of them out of line.” He also testified that he believed that the gaps in the hardwood flooring in the kitchen existed at the time he was inspecting the house, but that he failed to notice the gaps. The Nesbitts also admit in their brief that there was “evidence of the defective condition of the home” “at the time of the appraisal” in the form of “steel supports in the basement and cracks in the foundation and mortar” that McNew should have seen when the appraisal was performed.

In addition, as was the case in Hope, there was no evidence here indicating that the Nesbitts were precluded from adequately inspecting the house. To the contrary, the Nesbitts had ample opportunity to inspect the house for any damage or defects. Like the Hopes, the Nesbitts were not unfamiliar with the process of purchasing a house. Johnny testified that the Fredericks’ house was the fourth house that he and Jan had purchased, and Jan testified that she had an adequate understanding of the process of buying a house and of the sales contract. We decline to apply the specific-inquiry exception to the facts of this case. See Hope, 557 So.2d at 1211. Like the Hopes, the Nes-bitts cannot overcome their neglect in failing to thoroughly inspect the house, and, under the facts of this case, they cannot take advantage of the specific-inquiry exception to the rule of caveat emptor. Therefore, the Nesbitts have failed to present sufficient evidence creating a genuine issue of material fact as to their claims of fraudulent misrepresentation and fraudulent suppression.

B. McNew

The Nesbitts argue that McNew misrepresented the structural condition of the house in the appraisal report. The Nesbitts also argue that under Fisher v. Comer Plantation, Inc., 772 So.2d 455 (Ala.2000), the trial court erred in entering a summary judgment for McNew. McNew argues, on the other hand, that the summary judgment was proper, because, she says, she owed no duty to the Nesbitts.

'Even if the Nesbitts could show that McNew owed them a duty, the Nesbitts failed to present any evidence indicating that they did, in fact, rely on the appraisal in deciding to purchase the house. See Moore, 849 So.2d at 923 (holding that reasonable reliance is an essential element of a fraudulent-misrepresentation claim). McNew presented the following undisputed evidence to show that the Nesbitts did not rely on the appraisal: the Nesbitts signed the sales contract before the appraisal was completed; both Johnny and Jan testified that they did not rely on the appraisal in making the decision to purchase the house; the Nesbitts did not have any contact with McNew before the closing; Johnny testified that he did not read the appraisal before closing; and Jan testified that she only glanced at the appraisal report at closing.

The Nesbitts argue that they met the reasonable-reliance requirement because, they say, as a condition to obtaining the loan for the purchase of the house, Countrywide, the mortgage lender, should have been informed about the structural condition of the house. Therefore, the Nesbitts essentially argue that they indirectly relied upon the appraisal report, through Countrywide. However, the Nesbitts' have failed to cite any authority to show that “indirect” reliance, through Countrywide, is sufficient to meet the reasonable-reliance standard. This Court has stated:

“ ‘ “Where 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. Rule 28(a)[ (10) ], Ala.R.App. P.; Henderson v. Alabama A & M Univ., 483 So.2d 392 (Ala.1986).” Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990).’ ”

Kyser v. Harrison, 908 So.2d 914, 917 (Ala.2005) (quoting Spradlin v. Brimingham Airport Auth., 613 So.2d 347, 348 (Ala.1993)).

Furthermore, Countrywide could not have reasonably relied upon the appraisal report as a guarantee of the structural quality of the house. The appraisal report stated that “[t]he purpose of the appraisal is to estimate the market value of the real property that is the subject of this report.” An addendum attached to the appraisal stated that the purpose and the scope of the appraisal was to provide an estimate of the fair market value of the property. Lastly, the appraisal stated that the appraiser did not “warrant, guarantee or make any representation to structural stability. ...” Given the limiting language in the appraisal, any reliance by Countrywide upon the appraisal as a guarantee of the structural integrity of the house would have been unreasonable. See Brushwitz v. Ezell, 757 So.2d 423, 430-31 (Ala.2000) (holding that a buyer’s reliance on an appraisal report in deciding whether to purchase a house would be unreasonable given that the appraisal contained limiting language that it was not an evaluation of the condition of the house).

Conclusion

We affirm the summary judgment for the Fredericks and McNew.

AFFIRMED.

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

LYONS and BOLIN, JJ., concur in the result.

      . The Nesbitts testified that they made this offer after discussing the braces with Johnsey and around the time of the Nesbitts' third visit to the house.

      . The sales contract indicates that Realty-South was the agent of “both seller and buyer”; RealtySouth is not a party to this action,

      . The appraisal report contained the following contingent and limiting conditions:
      • "The appraiser has noted in the appraisal report any adverse conditions ... observed during the inspection of the subject property or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or unapparent conditions of the property or adverse environmental conditions ... that would make the property more or less valuable, and has assumed that there are no such conditions . and makes no guarantees or warranties, expressed or implied, regarding the condition of the property. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the property.”
      The appraisal report also contained the following addendum:
      "THE PURPOSE OF THIS APPRAISAL IS TO PROVIDE AN ESTIMATED OF THE MARKET VALUE OF THE ABOVE REFERENCED PROPERTY. THE APPRAISER DO[ES] NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION TO STRUCTURAL STABILITY OR THE CONDITION OR OPERATION OF ANY EQUIPMENT, HEAT, AIR CONDITIONING, SEPTIC TANK OR ANY OTHER COMPONENT, UNLESS DEFICIENCIES ARE CLEARLY VISIBLE AND SO STATED IN THE APPRAISAL REPORT.”
      (Capitalization in original.)

      . The Nesbitts' only argument on appeal as to their claims against the Fredericks is that this Court should overrule current caselaw related to the effect on a buyer’s fraudulent-misrepresentation and fraudulent-suppression claims of an "as is” provision in a contract. The Nesbitts do not address the negligence claim in their brief to this Court. Accordingly, the Nesbitts have waived any contention that summary judgment was erroneously entered as to their negligence claim. See Davant v. United Land Corp., 896 So.2d 475, 487 (Ala.2004) ("Matters not argued in brief are deemed waived.”).


author: HARWOOD, Justice.

text:
    Susan SERIO v. MERRELL, INC.
    1041815.
    Supreme Court of Alabama.
    May 5, 2006.

      Michael J. Crow of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.
    Alex L. Holtsford, Jr., and April M. Willis of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellee.
   HARWOOD, Justice.

Susan Serio, the plaintiff in a personal-injury action in the Elmore Circuit Court, appeals from a summary judgment in favor of the sole defendant, Merrell, Inc. (“Merrell”). We affirm.

Serio was injured in a collision at an intersection in Elmore County on November 14, 2002, involving an automobile driven by Serio and a tractor-trailer truck driven by Russell Merrell (“Russell”). Serio was traveling north on State Highway 143 when she came to a stop sign at the southern edge of Highway 14, which ran generally east and west at that point. Highway 143 intersected State Highway 14 so as to form a “T” intersection. No stop sign or other traffic control signal restricted the passage through the intersection of vehicles traveling on Highway 14. While Serio was stopped at the intersection, the tractor-trailer truck driven by Russell approached the intersection, traveling east on Highway 14. At some point while the truck was approaching, and despite the fact that the truck had the right-of-way, Serio pulled out into the intersection, intending to turn left onto Highway 14. Russell applied all of the brakes on his tractor-trailer rig and attempted to steer to the left to avoid Serio’s vehicle, but the truck skidded, jackknifing at some point, and the tractor portion of the rig eventually collided with the left side of Serio’s automobile, essentially in the westbound lane of Highway 14.

After the accident, and before any action was filed by Serio, Russell and the company he claims he was working for on the occasion in question, “Merrell Trucking,” filed a petition in bankruptcy and were eventually fully discharged from all potential liability arising out of the accident. Serio sued Merrell, asserting that it was the owner of the truck Russell was driving when the accident occurred and that Russell was actually its employee. Serio charged both that Russell had negligently operated his truck on the occasion in question and that he had wantonly operated it.

Merrell moved for a summary judgment, supported by, among other things, excerpts from the depositions of Russell, Serio, and an eyewitness to the collision, James Schassler. Merrell also submitted as a supporting exhibit a copy of the Alabama Uniform Traffic Accident Report relating to the incident. Serio opposed Merrell’s summary-judgment motion, submitting excerpts from her deposition and Russell’s, another copy of the accident report, and an affidavit by Larry Mann, whom she tendered as an expert witness. On August 12, 2005, the Elmore Circuit Court entered a summary judgment in favor of Merrell, expressly finding that Serio had been guilty of contributory negligence as a matter of law.

On appeal, Serio contends that there were genuine issues of material fact that precluded a finding that she was eontribu-torily negligent as a matter of law, and that, because contributory negligence is not a defense to a claim of wantonness and there was otherwise sufficient evidence to support the wantonness claim, the trial court erred in entering a summary judgment on that claim.

Our review of the record reveals that the only disputed issue of material fact concerns the speed at which Russell was driving as he approached the point on Highway 14 at which Highway 143 intersected. The posted speed limit was 45 miles per hour. Russell testified in his deposition that he was traveling at that speed when Serio pulled into the intersection; the Alabama state trooper who prepared the accident report (offered as “admissible” evidence by both parties) estimated that Russell’s speed was 45 miles per hour as he approached the intersection. He concluded also that the accident occurred when Serio, “not seeing” Russell’s truck, collided with it. Schassler, the eyewitness to the accident, did not offer a numerical estimate of Russell’s speed but testified in his deposition that it did not appear that Russell was going fast or that he was speeding. Serio acknowledged during her deposition that she had no personal knowledge about Russell’s speed because she never at any time saw the tractor-trailer truck.

A factual issue concerning Russell’s speed is raised, however, by Mann’s affidavit. A former police officer and current “accident reconstructionist and safety consultant,” Mann stated that he had reviewed the accident'report, 20 color photographs taken by the investigating state troopers, and a report and a scaled diagram of the accident prepared by a forensic-mapping and accident-reconstruction service. Based upon that review and noting that Russell’s “tractor-trailer left approximately 190 feet of skid-marks,” Mann expressed the opinion that Russell had been traveling “at approximately 60 mph before he applied any brakes to the tractor or trailer.” As Mann reconstructed the events leading to the collision, the application of brakes caused the tractor to jackknife; under the scenario Mann postulated, if Russell had been driving at 45 miles per hour, “he would not have had to brake hard or lock his brakes” and he could thereby have avoided the jackknifing and loss of control of his tractor-trailer rig, which, Mann theorizes, he could have then slowed and driven to the right to avoid contact with Serio’s vehicle. Mann ended his affidavit by stating, somewhat ambiguously, that if Russell’s truck had been traveling at 45 miles per hour “the Serio car would have been beyond the impact area” when Russell’s vehicle arrived at the impact area.

Because Merrell interposed no challenge to Mann’s affidavit, it constitutes admissible evidence.

Standard of Review

“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005).

Material Facts

Because under the summary-judgment standard of review we review the evidence in the light most favorable to Serio, the nonmovant, we accept as a fact, for purposes of our review, that Russell’s speed as he approached the intersection was 60 miles per hour. All of the other material facts are undisputed. The accident occurred at approximately 12:37 p.m. on a Thursday afternoon; the weather was clear and sunny; visibility was good. Ser-io testified that she made a complete stop at the stop sign before entering the intersection and that she “looked both ways, and then proceeded to go.” She testified: “I did not think I saw anything, and I pulled out.... I mean, I didn’t see anything. I can’t imagine pulling out if I had seen a big truck coming there.” She said that she never saw the tractor-trailer truck or had any idea that it was approaching until after the impact had occurred; pulling out into the intersection is the last thing she remembers before regaining consciousness in a hospital emergency room. She remembers nothing at all about the accident. When she was asked if she had “any reason, as 'to why you did not see the big truck before you pulled out,” she answered “[N]o, I really don’t.”

For his part, Russell testified that as he approached the intersection he saw Serio’s white car start to cross his lane of traffic on Highway 14, and he applied both the trailer brakes and the tractor brakes. All the wheels locked up and, able to steer his tractor “somewhat,” he turned to the left to attempt to avoid striking the white car.

The eyewitness, Schassler, testified ■ by deposition in the case. Most recently employed training police officers'- in Iraq, he had formerly -worked as both a police officer and a deputy sheriff. He had been driving his vehicle behind Serio’s car for a couple of miles on Highway 143 before they reached the intersection with Highway 14, and he stopped behind Serio at the intersection. “We were sitting there. A gravel truck was coming down, a big 18-wheeler looking thing.” He could see it “very clearly.” He testified:

“As [the truck] was approaching the intersection, the car just pulled out. She pulled out in front of it. I kept thinking why in the heck is she pulling out in front of a gravel truck? And the gravel truck did everything he could to avoid hitting her, you know. The only thing he could have done to avoid hitting her was to swerve and hit me. He locked his brakes up, tried to swerve as best he could, and ended up colliding with the vehicle.”

Schassler reiterated later in his deposition his opinion that the only thing the gravel truck could have done to avoid hitting Serio’s vehicle was to swerve and hit Schassler’s vehicle, “[b]ecause to me, the only avenue that the truck had besides hitting her was. coming — come right at me.” Schassler could. not think of any reason Serio could not have seen the truck approaching. When the truck was “roughly 100 to 150 yards” from her car, she began to move slowly into the intersection, “just a calm pulling out,” as if she did not see the truck. Schassler knew Serio’s vehicle was going to get hit, and he could not believe what she was doing.

Analysis

“Contributory negligence is an affirmative and complete defense to a claim based on negligence. In order to establish contributory negligence, the defendant bears the burden of proving that the plaintiff 1) had knowledge of the dangerous condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger. See Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991).”

Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala.1998).

While the question of contributory negligence is normally one for the jury, if the facts are such that all reasonable people would logically have to reach the conclusion that the plaintiff was contribu-torily negligent, then contributory negligence may be found as a matter of law. Knight v. Seale, 530 So.2d 821, 824 (Ala.1988); Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991); Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158 (Ala.1997); Ridgeway, 723 So.2d at 607. Merrell made a prima facie showing that Serio was contributorily negligent, entitling it to a summary judgment based on that defense, by establishing that she pulled into the path of the large oncoming truck when she could not have failed to see it had she looked to her left before, or as, she moved forward into the intersection. Her own testimony established that she consciously appreciated the danger posed by pulling onto a highway on which the vehicles traveling have the right-of-way, without first making sure that no vehicle was approaching too closely. She admitted that there was no reason she could not have seen the tractor-trailer truck before she pulled out, given the prevailing conditions.

Therefore, the burden shifted to Serio to produce substantial evidence creating a genuine issue of material fact as to whether she consciously appreciated the danger posed by any failure to adequately and accurately check for approaching traffic before pulling out from the stop sign and into an intersection. In Serio’s single brief to this Court, she does not discuss, or even take note of, any of the evidence relating to her own conduct or the attendant circumstances, other than to state generally that after stopping at the stop sign, “she then proceeded to make a left-hand turn and travel West on Highway [14] when she was struck by the truck....” (Serio’s brief, p. 9.) Rather she simply cites Marquis v. Marquis, 480 So.2d 1213, 1215 (Ala.1985), for the statement that for there to be contributory negligence “not only must the plaintiff have knowledge of the dangerous condition, but the plaintiff must also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred.” She does not attempt to relate that proposition to the facts of this case.

Direct evidence of such an appreciation of danger is not required if the evidence admits of no conclusion except that the plaintiff must have appreciated the hazard involved. It is enough if the plaintiff understood, or should have understood, the danger posed. Ridgeway, 723 So.2d at 606.

The danger of pulling out from a stop sign onto a public highway traversed by two-way traffic having the right-of-way and traveling at highway speeds, without making a final observation to one’s left sufficiently attentive to detect in the daylight the impending arrival of a truck of such size as to be inescapably obvious to one taking the precaution of making such an observation, is self-evident, and all reasonable people would logically have to conclude that Serio would have, or should have, consciously appreciated that danger when she drove forward into the intersection. Despite Serio’s somewhat ambivalent explanation, “I did not think I saw anything, and I pulled out.... I mean, I didn’t see anything. I can’t imagine pulling out if I had seen a big truck coming there,” she essentially acknowledges that an adequate observation to her left would have revealed the approaching truck.

“A motorist is negligent if he fails to discover a vehicle that he could have discovered in time to avoid injury.... All of the testimony was that [the defendant’s] vehicle was close enough to constitute an immediate hazard and could have been discovered by [the plaintiff] in time to avoid injury. If [the plaintiff] failed to see what was there to be seen, he was negligent.
“[The plaintiff] testified that he did not see the [defendant’s] vehicle before he turned left. The undisputed testimony is that [the plaintiff] could have seen the vehicle if he had maintained a proper lookout.”

Hood v. Murray, 547 So.2d 75, 78 (Ala.1989).

Assuming that Russell was negligent in approaching the intersection at a speed of 60 miles per hour, Serio makes no argument that she might have seen the truck approaching but that, relying on the assumption that it was proceeding at 45 miles per hour, she was lulled into the misperception that she could safely enter the intersection and make her left turn before the truck arrived at the intersection. She does not otherwise argue that the truck’s additional 15-miles-per-hour speed diminished her conscious appreciation of the danger of pulling into the intersection.

We conclude that, under the burden-shifting analysis applicable to consideration of a summary-judgment motion, Merrell made a prima facie showing of all the necessary elements of its affirmative defense of contributory negligence and that Serio failed to carry the burden that then shifted to her to produce substantial evidence creating a genuine issue of material fact as to any of those elements. Therefore, no error is shown with respect to the summary judgment as to the negligence count.

Serio’s argument in her brief that the trial court erred in entering the summary judgment on her wantonness claim consists entirely of this paragraph:

“Moreover, [Serio] has asserted a claim of wantonness in this case to which contributory negligence is no defense. Tyler v. City of Enterprise, 577 So.2d 876 (Ala.1991). [Serio] is therefore at least entitled to pursue claims of wantonness and the Court’s ruling is in error. Wantonness is a question of fact for the jury. Cash v. Caldwell, 603 So.2d 1001, 1003 (Ala.1992).”

Earlier, in the section of her brief addressing contributory negligence, Serio had stated “in other words, was defendant Merrell negligent or wanton in driving his truck at a speed in excess of 15 mph over the post [sic] speed limit and losing control of this truck when he applied the brakes causing the truck to make impact [sic] Mrs. Serio’s car in her lane.... ” (Serio’s brief, p. 14.)

In Knowles v. Poppell, 545 So.2d 40, 42 (Ala.1989), the evidence was that the defendant was driving between 5 and 15 miles per hour over the legal speed limit, and this Court noted that “[s]peed alone does not import wantonness, and a violation of the speed law does not of itself amount to wanton misconduct.” On the other hand, although speed alone does not amount to wantonness, “speed, coupled with other circumstances, may amount to wantonness.” Hicks v. Dunn, 819 So.2d 22, 24 (Ala.2001); see also Homady Truck Line, Inc. v. Meadows, 847 So.2d 908, 916 (Ala.2002). Serio fails to argue the existence of any “other circumstances” that would elevate the 15-miles-per-hour excess speed from negligence to wantonness in this case. At best, she simply argues that the additional speed caused Russell to lose control of the truck when he applied the brakes, which merely implicates a consequence of the speed, not another condition coexisting contemporaneously with it.

Although the trial judge did not specifically reference the wanton count in Serio’s complaint, or explain his reasoning in entering a summary judgment as to it, we will affirm a summary judgment if there is any ground evident in the record upon which the judgment could have been based. Brown v. St. Vincent’s Hosp., 899 So.2d 227 (Ala.2004). As Merrell points out in its brief, citing Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994), this Court has defined wantonness as “the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from the doing or omitting to do an act, injury will likely or probably result.” (Merrell’s brief, p. 22.) Serio has not filed a reply brief and, as noted, has not undertaken in her principal brief to discuss the elements of her wantonness claim or to identify any feature of Russell’s conduct, other than speed, that would represent a wanton act or omission. Accordingly, she has shown no error with respect to the trial judge’s summary judgment as to the wanton count.

We affirm the summary judgment.'

AFFIRMED.

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