author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    JOHNSTON-TOMBIGBEE FURNITURE MANUFACTURING COMPANY, INC. v. Scott BERRY.
    2030045.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2004.
    Rehearing Denied Dec. 3, 2004.

      Thomas R. Jones, Jr., and Randal Kevin Davis of Davidson, Wiggins & Jones, P.C., Tuscaloosa, for appellant.
    Isaac P. Espy of Espy, Nettles, Seogin & Brantley, P.C., Tuscaloosa, for appellee.
   YATES, Presiding Judge.

Johnston-Tombigbee Furniture Manufacturing Company, Inc., sued Scott Berry on October 3, 2001, seeking to reform a deed to certain real property based on a mutual mistake of the parties or, in the alternative, to quiet title to the real property. On April 16, 2003, Scott moved the court for a summary judgment. The motion was set for a hearing on August 7, 2003.

On August 6, 2003, Johnston-Tombigbee moved the court to allow it to amend its complaint. On September 10, 2003, the trial court entered an order granting Scott a summary judgment as to Johnston-Tom-bigbee’s complaint seeking a reformation of the deed or, in the alternative, to quiet title to certain real property. The court also granted Johnston-Tombigbee’s motion to amend its complaint.

Johnston-Tombigbee alleged in its amended complaint that Scott had converted corporate assets; had breached a corporate fiduciary duty; had usurped a corporate opportunity; had committed self-dealing; and had wasted corporate assets. On September 8, 2003, Scott moved the court for a summary judgment as to the claims asserted in the amended complaint, arguing, among other things, that the claims asserted in the complaint are barred by the applicable statute of limitations and by the doctrine of estoppel. On September 25, 2003, the trial court entered a summary judgment in favor of Scott on the claims asserted by Johnston-Tombig-bee in its amended complaint. Johnston-Tombigbee appeals. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the mov-ant makes a prima facie showing that no genuine issue of material fact exists, 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 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Reau Berry and Scott Berry are brothers. On January 7, 1988, Reau and Scott each acquired a 50% ownership interest in the stock of a corporation known as Loun-ora. Lounora owned Johnston-Tombig-bee; therefore, by way of their ownership of Lounora, Scott and Reau each owned an equal 50% share of Johnston-Tombigbee. Scott served as the president of Johnston-Tombigbee. At the time Reau and Scott acquired . ownership of the companies, Johnston-Tombigbee owned 3,000 acres of land located in Pickens County; that land was used primarily by Johnston-Tombig-bee as collateral and for the generation of cash through the harvesting of timber.

. In 1989, Reau and Scott learned that 112 acres of land contiguous to the 3,000 acres was available for purchase. The 112 acres of land was owned by Beville Reagan and was known as the “Ziegler Tract.” Reau and Scott resolved to purchase the Ziegler Tract with Johnston-Tombigbee’s funds. On May 31, 1989, Johnston-Tombigbee issued a check in the amount of $16,800 payable to Beville Reagan for the purchase of the Ziegler Tract; in addition, Reagan was given lifetime “coon hunting” rights to the 3,000 acres owned by Johnston-Tom-bigbee.

At the time of the purchase of the Ziegler Tract, it was the intent of Reau and Scott to have the title to the property placed in their names rather than in Johnston-Tombigbee’s. Scott testified in his deposition that he and Reau had intended to acquire the Ziegler Tract as a personal asset in order to “build some personal portfolio outside of the reach of the assets of Johnston-Tombigbee.” Scott further stated that Johnston-Tombigbee’s funds were used for the purchase of the Ziegler Tract because in June 1988 he had taken no salary from Johnston-Tombigbee and Reau had taken á reduced salary and that they therefore agreed to have the title to the Ziegler Tract placed in' their names as “more or less ... a bonus payment to [themselves].” Reau testified in his affidavit that title to the Ziegler Tract was placed in his and Scott’s names individually to allow them to build a personal portfolio. However, he further stated that the property was not considered a personal asset, but rather that it was an asset of Johnston-Tombigbee. Reau also testified that the property was not intended as a bonus payment to him or Scott.

Since the Ziegler Tract was acquired by Reau and Scott, Johnston-Tombigbee has paid taxes on the property, the property has been identified as an asset of Johnston-Tombigbee on the corporate books, and the property has been pledged by Reau and Scott as an asset of Johnston-Tombigbee for the purposes of borrowing money for Johnston-Tombigbee.

On June 30, 2000, Reau purchased Scott’s ownership interest in Lounora (and thus his ownership interest in Johnston-Tombigbee) and became the sole owner and new president of Johnston-Tombig-bee. Reau contends that he and Scott intended that he would be purchasing all the assets of Johnston-Tombigbee, including the Ziegler Tract, but that Scott has refused to convey his interest in the Ziegler Tract to Johnston-Tombigbee. Scott denies that he and Reau intended that Reau would be purchasing his ownership interest, in the Ziegler Tract, and he contends that his interest in the Ziegler Tract was a personal asset given to him as a bonus for taking no salary from Johnston-Tombigbee in June 1988.

Johnston-Tombigbee argues that the trial court erred in granting Scott’s motion for a summary judgment because, it contends, that motion failed to comply with Rule 56, Ala. R. Civ. P., in that the motion failed to contain a narrative summary of the undisputed facts. We disagree. Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for a summary judgment “be supported by a narrative summary of what the movant contends to be the undisputed material facts.” See also Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274 (Ala.2000).

Scott’s motion for a summary judgment does not contain an abundance of facts; however, it does contain some facts relative to the issues on appeal. Therefore, after reviewing the motion we conclude that it at least meets the minimum requirements of Rule 56, Ala. R. Civ. P.

Johnston-Tombigbee next argues that the claims asserted in its amended complaint are timely because they relate back to the filing of its original complaint. As mentioned above, Scott argued in support of his motion for a summary judgment that the claims asserted in Johnston-Tombigbee’s amended complaint are barred by the applicable statute of limitations.

Actions by a corporation against a corporate officer for a breach of fiduciary duty and a breach of the corporate trust are governed by the two-year statute of limitations found in § 6-2-38(0, Ala.Code 1975. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). Johnston-Tombigbee contends that its claims accrued against Scott on June, 30, 2000, the date that he sold his interest in Lounora and Johnston-Tombigbee to Reau and refused to convey his interest in the Ziegler Tract. Assuming that Johnston-Tombig-bee’s claims accrued on June 30, 2000, its amended complaint filed on August 6, 2003, was filed after the expiration of the applicable limitations period and is, therefore, untimely unless it relates back to the date of the filing of the original complaint pursuant to Rule 15(e), Ala. R. Civ. P. Rule 15(c) provides:

“An amendment of a pleading relates back to the date of the original pleading when
“(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.... ”
This court has stated:
“Thus, for an amended complaint to relate back to the date of the original complaint, the claim stated in the amended complaint must have arisen from the same conduct, transaction, or occurrence set forth in the original complaint. ‘The relation-back doctrine of Rule 15(c) is objective, and its application, under prescribed circumstances, is nondiscretionary.’
“An amendment to a complaint, filed beyond the statutory limitations period, that alleges facts not alleged in the original complaint or that attempts to state a cause of action that was not stated in the original complaint, is time-barred. The Supreme Court of Alabama stated the test for determining whether an amendment states a new cause of action, and thus cannot relate back to the date of the original complaint, as follows:
“ ‘ “A new cause of action is not set up by amendment where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope of the testimony.” ’ ”

Gulf States Steel, Inc. v. White, 742 So.2d 1264, 1267 (Ala.Civ.App.1999) (citations omitted). Additionally, this court has stated:

“ ‘[W]hen an amendment merely changes the legal theory of a case or merely adds an additional theory, and the new theory is based upon the same facts as the original one and those facts have been brought to the attention of the defendant, the amendment does not prejudice the defendant; we have held that such an amendment is to be taken as merely a more definite statement of the original cause of action and that it relates back to the date of the original complaint. See McCollough v. Warfield, 523 So.2d 374 (Ala.1988), and the cases quoted therein. However, this Court has also held that where the plaintiff, in an amendment filed beyond the statutory limitations period, alleges facts that tvere not alleged in the original complaint or attempts to state a cause of action that was not stated in the original complaint, the amendment is time-barred.’

Carter v. Liberty Nat’l Life Ins. Co., 849 So.2d 977, 982 (Ala.Civ.App.2002), quoting ConAgra, Inc. v. Adams, 638 So.2d 752, 753-54 (Ala.1994).

Johnston-Tombigbee alleged the following in its original complaint:

“10. At the time of the purchase [of the Ziegler Tract], it was the intent of the parties that the purchaser of the property be [Johnston-Tombigbee]. Further, at the time of the conveyance of the original deed, dated March 24, 1989, and the correction deed, dated August 9, 1989, it was the intent of the parties that said deeds should reflect [Johnston-Tombigbee] as the grantee and title owner.
“11. Reau Berry has executed a Quitclaim Deed in favor of [Johnston-Tombigbee], so that the public record will reflect the intent of the parties to the original conveyance. As such, Reau Berry is not a necessary party to this action.
“12. The Deeds currently enrolled, referred to in paragraphs seven and eight, above, reflect ownership of the property by Scott Berry and Reau Berry, individually, because of the mutual mistake of the parties at the time the deed was drafted and executed.”

Johnston-Tombigbee alleged the following in its amended complaint:

“12. At the time of the purchase in question and the conveyance of the original deed, dated March 24, and the correction deed, dated August 9, 1989, it was the intent of the defendant and his brother, the current President of [Johnston-Tombigbee], to place legal title in their personal names. However, it was their further intent to simply build their personal portfolios by such transactions and not to necessarily consider the subject property anything other than an asset of [Johnston-Tombigbee].”

Johnston-Tombigbee alleged in its original complaint that it was the intent of the parties to place title to the Ziegler Tract in the name of Johnston-Tombigbee and that, based on a mutual mistake of the parties, the property was titled in Scott’s and Reau’s names individually. However, in the amended complaint, Johnston-Tom-bigbee, in order to set up its claims of a breach of fiduciary duty and a breach of corporate trust, completely changed the crucial factual allegation to allege that it was the actual intent of Scott and Reau to place title to the Ziegler Tract in their names in order to build their personal portfolios. Because Johnston-Tombigbee completely changed the factual allegations to allege facts in its amended complaint that were not alleged in its original complaint, we conclude that the claims alleged in the amended complaint do not relate back to the date of the original complaint and, therefore, are barred by the applicable statute of limitations.

Because we conclude that the claims asserted in the amended complaint are barred, we pretermit discussion of the remaining issues raised by Johnston-Tom-bigbee on appeal.

AFFIRMED.

CRAWLEY and THOMPSON, JJ., concur.

PITTMAN, J., dissents, without writing.

MURDOCK, J., dissents, with writing.

MURDOCK, Judge,

dissenting.

As the main opinion notes (albeit without the same emphasis as is supplied below), this court has stated:

“The Supreme Court of Alabama stated the test for determining whether an amendment states a new cause of action, and thus cannot relate back to the date of the original complaint, as follows:
“ ‘ “A new cause of action is not set up by amendment where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope of the testimony.” ’ ”

Gulf States Steel, Inc. v. White, 742 So.2d 1264, 1267 (Ala.Civ.App.1999) (citations omitted) (emphasis added).

In this case, the allegations in both the original complaint and the amended complaint address the same “injury” and the same “matter” or “subject of controversy.” In both, Johnston-Tombigbee alleges that it should have the benefit of certain real property. In the original complaint, Johnston-Tombigbee sought a reformation of the deed to the real property, which it claims mistakenly names Reau Berry and his brother Scott Berry (rather than the corporation) as grantees, or, in the alternative, to quiet title to the real property in the corporation. In the amended complaint, Johnston-Tombigbee asserts that Scott Berry’s retention of title in himself, rather than in the corporation, constitutes a conversion of corporate assets, a breach of a corporate fiduciary duty, usurpation of corporate opportunity, self-dealing, and a waste of corporate assets. I believe the different claims, or legal theories, set forth in the amended complaint are not complaining of any different “injury” or “subject of controversy” than is alleged in the original complaint. Instead, the same matter is simply “differently laid.” See also Kaufmann & Assocs., Inc. v. Davis, 908 So.2d 246, 254 (Ala.Civ.App.2004) (Mur-dock, J., dissenting as to denial of application for rehearing) (discussing meaning of separate causes of action for purposes of res judicata).

Based on the foregoing, I must conclude that the trial court erred in failing to recognize that the claims set forth in the amended complaint relate back to the date of filing of the original complaint under Rule 15, Ala. R. Civ. P. Accordingly, I respectfully dissent from the judgment of this court affirming the trial court’s entry of a summary judgment against Johnston-Tombigbee on the ground that the claims asserted in the amended complaint were barred by the applicable statute of limitations.

      . Only the claims asserted in the amended complaint are before this court on appeal. The claims seeking a reformation of the deed or, in foe alternative, to quiet title are not before this court.


source: Caselaw Access Project

author: HARWOOD, Justice. BOLIN, Justice

license: Public Domain

text:
    Ex parte JOHNSTON-TOMBIGBEE FURNITURE MANUFACTURING COMPANY, INC. (In re Johnston-Tombigbee Furniture Manufacturing Company, Inc. v. Scott Berry).
    1040393.
    Supreme Court of Alabama.
    Oct. 7, 2005.

      Thomas R. Jones, Jr., and Randal Kevin Davis of Davidson, Wiggins, Jones & Parsons, P.C., Tuscaloosa, for petitioner.
    Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for respondent.
   HARWOOD, Justice.

We granted the petition of the plaintiff Johnston-Tombigbee Furniture Manufacturing Company, Inc. (“Johnston-Tombig-bee”), for a writ of certiorari to review the Court of Civil Appeals’ affirmance of the trial court’s summary judgments entered for Scott Berry (“Scott”). Johnston-Tombigbee Furniture Mfg. Co. v. Berry, 937 So.2d 1029 (Ala.Civ.App.2004).

Johnston-Tombigbee sued Scott on October 3, 2001, seeking to reform a deed, or, in the alternative, to quiet title to real property. On April 16, 2003, Scott filed a motion for a summary judgment. The hearing on the summary-judgment motion was set for August 7, 2003, and on August 6, 2003, Johnston-Tombigbee filed a motion to amend its complaint to add claims alleging conversion of corporate property, unjust enrichment, and breaches of fiduciary duties owed to Johnston-Tombigbee. On September 8, 2003, Scott filed a motion for a summary judgment as to the claims asserted by Johnston-Tombigbee in its amended complaint. On September 10, 2003, the trial court entered a summary judgment for Scott as to Johnston-Tom-bigbee’s claims for reformation of a deed, or, in the alternative, to quiet title, without stating a rationale. The trial court also granted Johnston-Tombigbee’s motion to amend its complaint. On September 25, 2003, again without stating a rationale, the trial court entered a summary judgment for Scott on the claims alleging conversion of corporate property, unjust enrichment, and breaches of fiduciary duties asserted by Johnston-Tombigbee in its amended complaint. Johnston-Tombigbee appealed to this Court, and we transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.

Our review of the record is in accord with the facts set out in the Court of Civil Appeals’ opinion:

“Reau Berry and Scott Berry are brothers. On January 7, 1988, Reau and Scott each acquired a 50% ownership interest in the stock of a corporation known as Lounora. Lounora owned Johnston-Tombigbee; therefore, by way of their ownership of Lounora, Scott and Reau each owned an equal 50% share of Johnston-Tombigbee. Scott served as the president of Johnston-Tombigbee. At the time Reau and Scott acquired ownership of the companies, Johnston-Tombigbee owned 3,000 acres of land located in Pickens County; that land was used primarily by Johnston-Tom-bigbee as collateral and for the generation of cash through the harvesting of timber.
“In 1989, Reau and Scott learned that 112 acres of land contiguous to the 3,000 acres was available for purchase. The 112 acres of land was owned by Beville Reagan and was known as the ‘Ziegler Tract.’ Reau and Scott resolved to purchase the Ziegler Tract with Johnston-Tombigbee’s funds. On May 31, 1989, Johnston-Tombigbee issued a check in the amount of $16,800 payable to Beville Reagan for the purchase of the Ziegler Tract; in addition, Reagan was given lifetime ‘coon hunting’ rights to the 3,000 acres owned by Johnston-Tombigbee.
“At the time of the purchase of the Ziegler Tract, it was the intent of Reau and Scott to have the title to the property placed in their names rather than in Johnston-Tombigbee’s. Scott testified in his deposition that he and Reau had intended to acquire the Ziegler Tract as a personal asset in order to ‘build some personal portfolio outside of the reach of the assets of Johnston-Tombigbee.’ Scott further stated that Johnston-Tom-bigbee’s funds were used for the purchase of the Ziegler Tract because in June 1988 he had taken no salary from Johnston-Tombigbee and Reau had taken a reduced salary and that they therefore agreed to have the title to the Ziegler Tract placed in their names as ‘more or less ... a bonus payment to [themselves].’ Reau testified in his affidavit that title to the Ziegler Tract was placed in his and Scott’s names individually to allow them to build a personal portfolio. However, he further stated that the property was not considered a personal asset, but rather that it was an asset of Johnston-Tombigbee. Reau also testified that the property was not intended as a bonus payment to him or Scott.
“Since the Ziegler Tract was acquired by Reau and Scott, Johnston-Tombigbee has paid taxes on the property, the property has been identified as an asset of Johnston-Tombigbee on the corporate books, and the property has been pledged by Reau and Scott as an asset of Johnston-Tombigbee for the purposes of borrowing money for Johnston-Tom-bigbee.
“On June 30, 2000, Reau purchased Scott’s ownership interest in Lounora (and thus his ownership interest in Johnston-Tombigbee) and became the sole owner and new president of Johnston-Tombigbee. Reau contends that he and Scott intended that he would be purchasing all the assets of Johnston-Tombigbee, including the Ziegler Tract, but that Scott has refused to convey his interest in the Ziegler Tract to Johnston-Tombigbee. Scott denies that he and Reau intended that Reau would be purchasing his ownership interest in the Ziegler Tract, and he contends that his interest in the Ziegler Tract was a personal asset given to him as a bonus for taking no salary from Johnston-Tombig-bee in June 1988.”

937 So.2d at 1031-32.

We granted Johnston-Tombigbee’s petition to address the Court of Civil Appeals’ holding that Johnston-Tombigbee’s amendment to its complaint asserting the claims of corporate wrongdoing did not “relate back” to the filing of the original complaint and was, therefore, barred by the statute of limitations. In support of its holding on this point, the Court of Civil Appeals stated:

“Actions by a corporation against a corporate officer for a breach of fiduciary duty and a breach of the corporate trust are governed by the two-year statute of limitations found in § 6-2-38(i), Ala.Code 1975. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). Johnston-Tombigbee contends that its claims accrued against Scott on June 30, 2000, the date that he sold his interest in Lounora and Johnston-Tombigbee to Reau and refused to convey his interest in the Ziegler Tract. Assuming that Johnston-Tombigbee’s claims accrued on June 30, 2000, its amended complaint filed on August 6, 2003, was filed after the expiration of the applicable limitations period and is, therefore, untimely unless it relates back to the date of the filing of the original complaint pursuant to Rule 15(c), Ala. R. Civ. P. Rule 15(c) provides:
“ ‘An amendment of a pleading relates back to the date of the original pleading when
“ ‘(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....’

“This court has stated:

“ ‘Thus, for an amended complaint to relate back to the date of the original complaint, the claim stated in the amended complaint must have arisen from the same conduct, transaction, or occurrence set forth in the original complaint. “The relation-back doctrine of Rule 15(c) is objective, and its application, under prescribed circumstances, is nondiscretionary.”
“ ‘An amendment to a complaint, filed beyond the statutory limitations period, that alleges facts not alleged in the original complaint or that attempts to state a cause of action that was not stated in the original complaint, is time-barred. The Supreme Court of Alabama stated the test for determining whether an amendment states a new cause of action, and thus cannot relate back to the date of the original complaint, as follows:
“ ‘ “ ‘A new cause of action is not set up by amendment where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope of the testimony.’ ” ’

“Gulf States Steel, Inc. v. White, 742 So.2d 1264, 1267 (Ala.Civ.App.1999) (citations omitted). Additionally, this court has stated:

“ ‘ “[Wjhen an amendment merely changes the legal theory of a case or merely adds an additional theory, and the new theory is based upon the same facts as the original one and those facts have been brought to the attention of the defendant, the amendment does not prejudice the defendant; we have held that such an amendment is to be taken as merely a more definite statement of the original cause of action and that it relates back to the date of the original complaint. See McCollough v. Warfield, 523 So.2d 374 (Ala.1988), and the cases quoted therein. However, this Court has also held that where the plaintiff, in an amendment filed beyond the statutory limitations period, alleges facts that were not alleged in the original complaint or attempts to state a cause of action that was not stated in the original complaint, the amendment is time-barred.”

“Carter v. Liberty Nat’l Life Ins. Co., 849 So.2d 977, 982 (Ala.Civ.App.2002), quoting ConAgra, Inc. v. Adams, 638 So.2d 752, 753-54 (Ala.1994).

“Johnston-Tombigbee alleged the following in its original complaint:

“ 10. At the time of the purchase [of the Ziegler Tract], it was the intent of the parties that the purchaser of the property be [Johnston-Tombig-bee]. Further, at the time of the conveyance of the original deed, dated March 24, 1989, and the correction deed, dated August 9, 1989, it was the intent of the parties that said deeds should reflect [Johnston-Tombigbee] as the grantee and title owner.
“ 11. Reau Berry has executed a Quitclaim Deed in favor of [Johnston-Tombigbee], so that the public record will reflect the intent of the parties to the original conveyance. As such, Reau Berry is not a necessary party to this action.
“ 12. The Deeds currently enrolled, referred to in paragraphs seven and eight, aboye, reflect ownership of the property by Scott Berry and Reau Berry, individually, because of the mutual mistake of the parties at the time the deed was drafted and executed.’

“Johnston-Tombigbee alleged the following in its amended complaint:

“ 12. At the- time of the purchase in question .and the conveyance of the original deed, dated March 24, and the correction deed, dated August 9, 1989, it was the intent of the defendant and his brother, the current President of [Johnston-Tombigbee], to place legal title in their personal names. However, it was their further intent to simply build their personal portfolios by such transactions and not to necessar- , ily consider the subject property anything other than an asset of [Johnston-Tombigbee].’
“Johnston-Tombigbee alleged in its original complaint that it was the intent of the parties to place title to the Ziegler Tract in the name of Johnston-Tombig-bee and that, based on a mutual mistake of the parties, the property was titled in Scott’s and Reau’s names individually. However, in the amended complaint, Johnston-Tombigbee, in order to set up its claims of a breach of fiduciary duty and a breach of corporate trust, completely changed the crucial factual allegation to allege that it was the actual intent of Scott and Reau to place title to the Ziegler Tract in their names in order to build their personal portfolios. Because Johnston-Tombigbee completely changed the factual allegations to allege facts in its amended complaint that were not alleged in its original complaint, we conclude that the claims alleged in the amended complaint do not relate back to the date of the original complaint and, therefore, are barred by the applicable statute of limitations.”

937 So.2d at 1032-34.

Judge Murdock dissented, stating:

“As the main opinion notes (albeit without the same emphasis as is supplied below), this court has stated:

“ ‘The Supreme Court of Alabama stated the test for determining whether an amendment states a new cause of action, and thus cannot relate back to the date of the original complaint, as follows:
“ ‘ “ ‘A new cause of action is not set up by amendment where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope of the testimony.’
“Gulf States Steel, Inc. v. White, 742 So.2d 1264, 1267 (Ala.Civ.App.1999) (citations omitted) (emphasis added).
“In this case, the allegations in both the original complaint and the amended complaint address the same ‘injury’ and the same ‘matter’ or ‘subject of controversy.’ In both, Johnston-Tombigbee alleges that it should have the benefit of certain real property. In the original complaint, Johnston-Tombigbee sought a reformation of the deed to the real property, which it claims mistakenly names Reau Berry and his brother Scott Berry (rather than the corporation) as grantees, or, in the alternative, to quiet title to the real property in the corporation. In the amended complaint, Johnston-Tombigbee asserts that Scott Berry’s retention of title in himself, rather than in the corporation, constitutes a conversion of corporate assets, a breach of a corporate fiduciary duty, usurpation of corporate opportunity, self-dealing, and a waste of corporate assets. I believe the different claims, or legal theories, set forth in the amended complaint are not complaining of any different ‘injury’ or ‘subject of controversy’ than is alleged in the original complaint. Instead, the same matter is simply ‘differently laid.’ See also Kaufmann & Assocs., Inc. v. Davis, 908 So.2d 246, 254 (Ala.Civ.App.2004) (Murdock, J., dissenting as to denial of application for rehearing) (discussing meaning of separate causes of action for purposes of res judi-cata).”

937 So.2d at 1034-35.

Johnston-Tombigbee’s argument in its petition essentially echoes Judge Mur-dock’s dissent. This position focuses on the point that the claims asserted in the amended complaint “have arisen from the same conduct, transaction, or occurrence set forth in the original complaint,” i.e., the transaction by which the parties in this case acquired their interest in the Ziegler tract. Rule 15(c), Ala. R. Civ. P. However, the Court of Civil Appeals correctly observed that Johnston-Tombigbee’s amended complaint does present a different fact, i.e., the intent of the parties to take the title to the Ziegler tract in their individual names rather than to have the title to the property placed in the name of Johnston-Tombigbee, as was alleged in the original complaint. Moreover, that fact is a necessary component of the claims added by Johnston-Tombigbee in its amended complaint. Further, although Johnston-Tom-bigbee’s complaint originally asserted claims based upon the deed, i.e., ex con- tractu, the claims asserted in the amended complaint are tort claims asserting improper conduct by Scott.

Accordingly, we turn to case authority concerning the relation-back doctrine and its consideration of when different factual allegations in an amended complaint result in such changes to the original theory of the case as to defeat the application of the relation-back doctrine. In ALFA Mutual Insurance Co. v. Smith, 540 So.2d 691 (Ala.1988), this Court considered an appeal by ALFA Mutual Insurance Company of a judgment entered on a verdict against it in the amount of $75,000 based on claims alleging breach of contract and bad-faith refusal to pay benefits. Among the issues considered by the Court was whether the bad-faith claim, added after the Court of Civil Appeals reversed the judgment entered on the original verdict on a breach-of-contract claim and remanded the cause, could “relate back” to the timely filed original complaint. The Court stated:

“Our next question is whether that claim is barred by the statute of limitations or whether it relates back to Smith’s original complaint, under Rule 15(c), [Ala.]R.Civ.P. The other recent case alluded to in this opinion, McCollough v. Warfield, 523 So.2d 374 (Ala.1988), involved an original complaint filed on February 19, 1985, for breach of a contract signed January 20, 1984. The McCulloughs filed an amended complaint on November 26, 1986, alleging fraud, which the trial court held was barred by the statute of limitations. In reversing the trial court’s disallowance of the amendment in [Ex parte Insurance Company of North America (Citizensbank of Thomasville v. Insurance Company of North America), 523 So.2d 1064 (Ala.1988)], we cited McClendon v. City of Boaz, 395 So.2d 21, 26 (Ala.1981):
“ ‘ “That the amendment adds a new theory or revamps the format of the complaint is immaterial. When a new theory of liability is based upon the same facts and those facts have been brought to the attention of the opposite party by previous pleading, no prejudice is worked by allowing the amendment.” ’

“523 So.2d at 375.”

540 So.2d at 694 (footnote omitted; emphasis added). In Smith, the Court found that the bad-faith claim was not based upon any fact not presented in the original complaint and held that the amendment did relate back to the filing of the original complaint and was therefore not time-barred. We note that the amendment in Smith added a tort — bad-faith refusal to pay benefits — to the original breach-of-contract action.

In McCollough v. Warfield, 523 So.2d 374 (Ala.1988), the case referenced above in Smith, the plaintiffs sought to amend a complaint alleging breach of contract to add a fraud claim. As in Smith, the amendment was filed after the limitations period had lapsed; the trial court declined to permit the amendment and held that the fraud claim was barred. On appeal, the Court discussed two earlier cases and the effect of the possibility of prejudice to the defendant as a result of allowing the amendment.

“In Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980), the Court dealt with the situation where the plaintiff was attempting to amend his contract action by adding a fraud count. In dealing with the issue of whether the fraud count should relate back to the original complaint, the Court stated:
“ Tt is obvious from the amendment that Sippial was going to attempt to prove its fraud allegation with facts previously pled and with the terms of the subcontract. The fraud count was merely an additional cause of action. Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party.... We cannot say that Bracy suffered actual prejudice or that the trial would be unduly delayed by allowing the amendment; the court, therefore, did not abuse its discretion in allowing it.’

“Bracy v. Sippial Electric Co., 379 So.2d at 584.

“In McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977), this Court wrote:

“ ‘ “Under this rule [15] leave to amend pleadings should be granted freely when justice so requires and the adverse party will not be prejudiced thereby, to clarify the issues and expedite the disposition of litigation .... ” (footnotes omitted) [quoting 1A Barron and Holtzojf, Federal Practice & Procedure, § 442 comments; emphasis added in McElrath ].
“ ‘ “Prejudice may be found, however, where the amendment will cause excessive delay or where a source of evidence has become unavailable or a statute of limitations would bar a new suit if the opposing party should lose the present action .... ” (footnotes omitted) [quoting 1A Barron and Holtzoff, Federal Practice & Procedure, § 442 comments; emphasis added in McElrath ].’
351 So.2d at 564-65. The Court also wrote:
“ ‘ “Our survey of the cases interpreting rule 15(a) has not persuaded us that a finding of prejudice to the opposing party, although dispositive when present, is the only factor justifying a refusal to permit a change in theory.... As we see it, a shift in theory should be denied, even in the absence of prejudice, where the party seeking to interpose it has been guilty of flagrant abuse, bad faith, or truly inordinate and unexplained delay. However, in the absence of these factors the question of prejudice should be the touchstone of the determination whether to permit the amendment. (footnote omitted [in McElrath ].) Moreover, in approaching that question, we believe that we must view the [notion] of prejudice broadly ...” [quoting Matlock, Inc. v. Hupp Corp., 57 F.R.D. 151 (E.D.Pa.1972); emphasis added in McElrath ].’
“McElrath v. Consolidated Pipe & Supply Co., 351 So.2d at 564-65.”

523 So.2d at 375-76. The Court in McCol-lough then concluded that, because the claims asserted in the amended complaint arose out of the same events and the same “set of facts” that were presented in the original complaint, the defendant had suffered no prejudice by the amendment. The Court then held that the amendment related back to the filing of the original complaint and was therefore not time-barred.

The holdings in Smith and McCollough strongly imply that amendments that advance distinct legal theories, such as a tort when the original claim arose in contract, can relate back to the filing date of the complaint whenever the amendment is based upon the same set of facts presented in the original complaint. An example of a case in which the amendment was held not to relate back is ConAgra, Inc. v. Adams, 638 So.2d 752 (Ala.1994), in which a plaintiff who originally sought workers’ compensation benefits later sought to amend his complaint to allege retaliatory discharge. After the discussion quoted by the Court of Civil Appeals in its majority opinion in this case, the Court in ConAgra stated:

“In this case, however, the claims asserted in Adams’s amended complaint do not arise out of the same events as those claims asserted in the original complaint. Specifically, the original complaint merely alleges that Adams was injured while working within the line and scope of his employment with ConAgra and that ConAgra had denied him workers’ compensation benefits. The record reveals that Adams was terminated by ConAgra in October 1987, before he filed his complaint for workers compensation benefits; therefore, when he filed the original complaint, Adams had notice of the facts giving rise to the retaliatory discharge claim, yet he did not file his amended complaint alleging retaliatory discharge until May 1991. The retaliatory discharge theory asserted in the amended complaint was not based on facts that had been brought to ConA-gra’s attention in the original complaint.”

638 So.2d at 754. Thus, an implied consideration in ConAgra, as in Smith and McCollough, supra, is the concept of prejudice to the defendant, i.e., whether the original complaint provided the defendant with a sufficient factual basis from which he or she could reasonably anticipate the claims presented in the amendment.

This analysis comports with the discussion by the Court in Sonnier v. Talley,

806 So.2d 381 (Ala.2001)("Sonnier II”). In that case, the Court considered Talley’s medical-malpractice claim against Dr. Sonnier. Talley’s original complaint set out medical-malpractice claims, asserting that various health-care providers, including Dr. Sonnier, had caused her to undergo an unnecessary hysterectomy. She later amended her complaint to add claims asserting that, subsequent to the surgical procedure, Dr. Sonnier had misrepresented to her various facts concerning the necessity for the procedure and her continuing health. Talley appealed a summary judgment entered for Dr. Sonnier; this Court determined that, although Talley’s claims based on the surgical procedure were barred by the four-year limitations period for medical-malpractice actions, her claims alleging misrepresentations made following the surgery constituted separate acts of malpractice, which were not time-barred. Ex parte Sonnier, 707 So.2d 635 (Ala.1997). Accordingly, this Court remanded the cause for further proceedings in the trial court. On remand, Dr. Sonnier filed a motion for a summary judgment, arguing, among other things, that the misrepresentation claims in the amended complaint involved separate and distinct facts that could not relate back to the facts alleged in the original complaint. The trial court denied Dr. Sonnier’s motion for a summary judgment and, pursuant to Rule 5, Ala.R.App.P., certified that the issue presented a controlling issue of law to allow Dr. Sonnier to seek a permissive appeal, which he did. See Sonnier II. Dr. Sonnier argued, among other things, that this Court had determined in Ex parte Sonnier that all of Talley’s claims were time-barred and, in addition, that Talley’s misrepresentation claims were separate and distinct from the claims asserting that Dr. Sonnier had performed an unnecessary hysterectomy and thus could not relate back to the filing date of the original complaint. Dr. Sonnier’s argument, therefore, asserted that the misrepresentation claims were barred by the expiration of the limitations period. In its discussion of the relation-back issue, the Court in Sonnier II first noted:

“[Ex parte Sonnier ] did not hold that all of the claims asserted in the Talleys’ original complaint were time barred. Rather, the [Ex parte Sonnier ] Court specifically held that Talley’s claims relating to the hysterectomy itself and any claims arising out of events or actions preceding the date of that surgery were time barred. However, this Court also expressly held that ‘the Talleys timely filed the complaint with respect to the misrepresentations Mrs. Talley says the doctors made subsequent to the surgery.’ [Ex parte Sonnier ], 707 So.2d at 638 (emphasis added). Moreover, this Court reviewed the record before it and found substantial evidence supporting the Talleys’ allegations of malpractice (i.e., the misrepresentations). Thus, the [Ex parte Sonnier ] Court held that the trial court erred in entering a summary judgment for the defendant doctors on Talley’s misrepresentation claims on the basis of the statute of limitations.”

806 So.2d at 386. However, the Court also stated:

“[T]his analysis does not completely resolve the question whether Talley’s later-filed misrepresentation claims may relate back to the date of her original complaint. Rule 15(c), Ala. R. Civ. P., which allows relation back of amendments, states in pertinent part: ‘An amendment of a pleading relates back to the date of the original pleading when ... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....’ Regarding Rule 15(c), this Court has quoted the following with approval:
“ ‘ “Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all of the notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged, such as by specifying particular acts of negligence under a general allegation of negligence, or remedies a defective pleading, will relate back even though the statute of limitations has run in the interim. Similarly, while it is still the rule that an amendment which states an entirely new claim for relief based on different facts will not relate back, if the pleading sufficiently indicates the transaction or occurrence on which the claim or defense is based, amendments correcting specific factual details such as time and place, as well as other items, will relate back.
“ ‘ “The [Alabama Rules of Civil Procedure] have broadened the meaning of the concept of ‘cause of action,’ shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back. Thus, an amendment will relate back which changes the theory of recovery as to the type of negligence claimed, or adds additional grounds of negligence, changes the theory of the action from one based on contract to one sounding in tort, changes a demand for equitable relief to one for legal relief, states a different fulfillment of conditions precedent, or increases the amount of damages claimed.” ’
“National Distillers & Chem. Corp. v. American Laubscher Corp., 338 So.2d 1269, 1273-74 (Ala.1976), quoting 3 James W. Moore et al., Moore’s Federal Practice and Procedtire, ¶ 15.15[3], pp. 1025-31 (1968 ed.) (emphasis added).
“Talley’s original complaint contained three counts, the first of which was a general count alleging negligence and malpractice against Dr. Sonnier in regard to his rendering medical care and treatment to Talley from June 1990 through, and including, October 1991. Thus, Talley alleged general negligence and malpractice in her original complaint arising out of and related to Dr. Sonnier’s medical treatment of her during the period specified therein. This period included the months following Talley’s surgery.
“In her amended complaint, Talley restated the allegations contained in her original complaint and added allegations that, during the months following her surgery, Dr. Sonnier and Dr. van der Meer [a codefendant] made misrepresentations of fact regarding her purported cancer, the need she was supposed to have had for a hysterectomy, and the need for her to return for medical care to avoid a recurrence of cancer. Thus, Talley’s amended complaint may be construed to state claims of negligence and malpractice arising out of, and related to, the medical care provided to her after the surgery.
“As recognized in National Distillers, supra (quoting Moore’s Federal Practice ), ‘ “an amendment which merely makes more specific what has already been alleged, such as by specifying particular acts of negligence under a general allegation of negligence, ... will relate- back even though the statute of limitations has run in the interim.” ’ 338 So.2d at 1273. Because the allegations of Talley’s original complaint gave Dr. Sonnier fair notice of the general fact situation out of which her allegations of misrepresentation arise, her misrepresentation claims relate back to the date the original complaint was filed.”

806 So.2d at 386-87.

When we examine the instant case in light of Sonnier II and its predecessors discussing the relation-back doctrine found in Rule 15(c), Ala. R. Civ. P., as permitting relation back when the amendment arises out of the same transaction or occurrence so long as the amendment does not prejudice the party in opposition, we focus on the nature of the transaction or occurrence. In this case, the occurrence was the' transfer of title of the Ziegler tract. Throughout its pleadings, Johnston-Tom-bigbee has acknowledged that the title to the Ziegler tract was placed in Reau and Scott’s names. The original complaint alleged that placing title in Reau and Scott’s names was a mistake and that

“ ‘[a]t the time of the purchase [of the Ziegler Tract], it was the intent of the parties that the purchaser of the property be [Johnston-Tombigbee]. Further, at the time of the conveyance of the original deed, dated March 24, 1989, and the correction deed, dated August 9, 1989, it was the intent of the parties that said deeds should reflect [Johnston-Tombigbee] as the grantee and title owner.’ ”

937 So.2d at 1033. Later, Reau testified in his deposition that the parties intended to place the title to the Ziegler tract in their individual names. In opposition to Scott’s motion for a summary judgment, Reau sought to amend the complaint to assert:

“At the time of the purchase in question and the conveyance of the original deed, dated March 24, and the correction deed, dated August 9, 1989, it was the intent of the defendant and his brother, the current President of [Johnston-Tombigbee], to place legal title in their personal names. However, it was their further intent to simply build their personal portfolios by such transactions and not to necessarily consider the subject property anything other than an asset of [Johnston-Tombigbee].”

Thus, the nature of the relief sought, that title to the Ziegler tract be vested in Johnston-Tombigbee, has not changed. Also unchanged are the facts of the occurrence that gave rise to Johnston-Tombig-bee’s claim, i.e., the purchase of the Ziegler tract. The only new allegation in Johnston-Tombigbee’s amended complaint regards the allegation that the intent of the parties was that title to the Ziegler tract be vested in Johnston-Tombigbee as a corporate asset. Our caselaw, as shown by Sonnier II, ConAgra, Smith, and McCollough, does permit a claim based on a new cause of action added in an amendment to relate back to the filing of the original claim under Rule 15(c), even when the cause of action underlying the claim added by the amendment is as distinct from the original cause as causes sounding in contract are distinct from causes sounding in tort, so long as the “ ‘original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ ” Sonnier II, 806 So.2d at 386-87 (quoting National Distillers & Chem. Corp., supra, 338 So.2d at 1273).

With respect to the concept of prejudice that is implied in the relation-back doctrine, we first note that in this context the concept of prejudice does not include the possibility of exposure to additional liability as a result of new claims or legal theories for recovery added in the amendment. This Court has explicitly stated that “when an amendment merely changes the legal theory of a case or merely adds an additional theory, and the new theory is based upon the same facts as the original one and those facts have been brought to the attention of the defendant, the amendment does not prejudice the defendant ...” ConAgra, 638 So.2d at 753. See also Whitfield v. Murphy, 475 So.2d 480 (Ala.1985)(addition of mother’s false-imprisonment claim by amendment in daughter’s action also claiming false imprisonment related back to the date of the filing of the daughter’s action and did not prejudice the defendants because the mother’s claim arose out of the same transaction or occurrence as the daughter’s claim), and Carter, supra. Thus, the addition of new claims by amendment in Sonnier II, ConAgra, Smith, and McCol-lough, which added new theories of liability, did not constitute prejudice, even when those new theories raise the possibility of different and additional compensatory damages, as well as the possible liability for punitive damages raised by the addition of the new tort claims asserted in Smith and McCollough. Rather, the concept of prejudice in the relation-back cases concerns the ability of the respondent to the amendment to defend against the claims that arise from the amendment. The factors that might constitute prejudice in this context were noted in McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560, 565 (Ala.1977): “ ‘[W]here the amendment will cause excessive delay or where a source of evidence has become unavailable or a statute of limitations would bar a new suit if the opposing party should lose the present action.’ ” (Quoting 1A Barron and Holtzoff, Federal Practice and Procedure, § 446 comments.)

In considering whether Scott would be prejudiced if Johnston-Tombigbee’s amendment is allowed, we note that it is apparent that the evidence relevant to the parties’ intent in the occurrence that gave rise to this case — the acquisition of the Ziegler tract — is equally available to both Reau and Scott. Scott argues no prejudice resulting from the loss of any evidence with respect to this allegation, nor does the allegation raise the likelihood of excessive delay. Scott, as the defendant, is not concerned about the possible loss of a cause of action because of the expiration of a limitations period. McElrath, supra. The briefs of the parties do not demonstrate any other instance of prejudice that might arise from permitting Johnston-Tombigbee’s amendment to relate back.

Accordingly, we conclude that the Court of Civil Appeals erred in determining that Johnston-Tombigbee’s amended complaint could not relate back to the filing date of its original complaint under Rule 15(c), Ala. R. Civ. P. It follows that we must reverse the judgment of that court and remand the cause with instructions for that court to consider further those arguments advanced by Scott that the summary judgment must be affirmed even in the event that the claims in Johnston-Tombigbee’s amended complaint relate back to the date of the filing of the original complaint.

REVERSED AND REMANDED.

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

BOLIN, J., dissents.

BOLIN, Justice

(dissenting).

Because I believe that Johnston-Tom-bigbee in its amended complaint completely changed the factual allegations to allege facts that were not alleged in its original complaint, I believe that the claims alleged in the amended complaint do not relate back to the date of the filing of the original complaint and that they are, therefore, barred by the applicable statute of limitations. See Gulf States Steel, Inc. v. White, 742 So.2d 1264 (Ala.Civ.App.1999). Accordingly, I must respectfully dissent from the main opinion.

      . "Arising from a contract." Black’s Law Dictionary 608 (8th ed.2004).


author: PER CURIAM.

text:
    JOHNSTON-TOMBIGBEE FURNITURE MANUFACTURING COMPANY, INC. v. Scott BERRY.
    2030045.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2006.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1050473.

      Thomas R. Jones, Jr., and Randal Kevin Davis of Davidson, Wiggins & Jones, P.C., Tuscaloosa, for appellant.
    Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellee.
   On Remand from the Alabama Supreme Court

PER CURIAM.

This case is before this court on remand from the Supreme Court of Alabama.

This court affirmed a summary judgment entered in favor of Scott Berry (“Scott”) on claims asserted by Johnston-Tombigbee Furniture Manufacturing Company, Inc. (“Johnston-Tombigbee”), in an amended complaint. Johnston-Tombigbee Furniture Mfg. Co. v. Berry, 937 So.2d 1029 (Ala.Civ.App.2004) (“Johnston-Tom-bigbee I”). In reaching its holding, this court determined, among other things, that the claims asserted in the amended complaint did not relate back, pursuant to Rule 15(c), Ala. R. Civ. P., to the date of the filing of Johnston-Tombigbee’s original complaint against Scott. Johnston-Tom-bigbee I, supra. On certiorari review, the Supreme Court of Alabama reversed that determination, holding that the claims asserted in the amended complaint did relate back to the date of the filing of the original complaint. Ex parte Johnston-Tombigbee Furniture Mfg. Co., 937 So.2d 1035 (Ala.2005). Our supreme court remanded the case to this court to “consider further those arguments advanced by Scott that the summary judgment must be affirmed even in the event that the claims in Johnston-Tombigbee’s amended complaint relate back to the date of the filing of the original complaint.” Ex parte Johnstorn-Tombigbee, 937 So.2d at 1047.

The procedural history and facts, as set forth by our supreme court, are as follows:

“Johnston-Tombigbee sued Scott on October 3, 2001, seeking to reform a deed, or, in the alternative, to quiet title to real property. On April 16, 2003, Scott filed a motion for a summary judgment. The hearing on the summary-judgment motion was set for August 7, 2003, and on August 6, 2003, Johnston-Tombigbee filed a motion to amend its complaint to add claims alleging conversion of corporate property, unjust enrichment, and breaches of fiduciary duties owed to Johnston-Tombigbee. On September 8, 2003, Scott filed a motion for a summary judgment as to the claims asserted by Johnston-Tombigbee in its amended complaint. On September 10, 2003, the trial court entered a summary judgment for Scott as to Johnston-Tombigbee’s claims for reformation of a deed, or, in the alternative, to quiet title, without stating a rationale. The trial court also granted Johnston-Tom-bigbee’s motion to amend its complaint. On September 25, 2003, again without stating a rationale, the trial court entered a summary judgment for Scott on the claims alleging conversion of corporate property, unjust enrichment, and breaches of fiduciary duties asserted by Johnston-Tombigbee in its amended complaint. Johnston-Tombigbee appealed to this Court, and we transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.
“Our review of the record is in accord with the facts set out in the Court of Civil Appeals’ opinion:
“ ‘Reau Berry and Scott Berry are brothers. On January 7, 1988, Reau and Scott each acquired a 50% ownership interest in the stock of a corporation known as Lounora. Lounora owned Johnston-Tombigbee; therefore, by way of their ownership of Lounora, Scott and Reau each owned an equal 50% share of Johnston-Tom-bigbee. Scott served as the president of Johnston-Tombigbee. At the time Reau and Scott acquired ownership of the companies, Johnston-Tombigbee owned 3,000 acres of land located in Pickens County; that land was used primarily by Johnston-Tombigbee as collateral and for the generation of cash through the harvesting of timber.
“ ‘In 1989, Reau and Scott learned that 112 acres of land contiguous to the 3,000 acres was available for purchase. The 112 acres of land was owned by Beville Reagan and was known as the “Ziegler Tract.” Reau and Scott resolved to purchase the Ziegler Tract with Johnston-Tombig-bee’s funds. On May 31, 1989, Johnston-Tombigbee issued a check in the amount of $16,800 payable to Beville Reagan for the purchase of the Ziegler Tract; in addition, Reagan was given lifetime “coon hunting” rights to the 3,000 acres owned by Johnston-Tombigbee.
“ ‘At the time of the purchase of the Ziegler Tract, it was the intent of Reau and Scott to have the title to the property placed in their names rather than in Johnston-Tombigbee’s. Scott testified in his deposition that he and Reau had intended to acquire the Ziegler Tract as a personal asset in order to “build some personal portfolio outside of the reach of the assets of Johnston-Tombigbee.” Scott further stated that Johnston-Tombigbee’s funds were used for the purchase of the Ziegler Tract because in June 1988 he had taken no salary from Johnston-Tombigbee and Reau had taken a reduced salary and that they therefore agreed to have the title to the Ziegler Tract placed in their names as “more or less ... a bonus payment to [themselves].” Reau testified in his affidavit that title to the Ziegler Tract was placed in his and Scott’s names individually to allow them to build a personal portfolio. However, he further stated that the property was not considered a personal asset, but rather that it was an asset of Johnston-Tombigbee. Reau also testified that the property was not intended as a bonus payment to him or Scott.
“ ‘Since the Ziegler Tract was acquired by Reau and Scott, Johnston-Tombigbee has paid taxes on the property, the property has been identified as an asset of Johnston-Tombig-bee on the corporate books, and the property has been pledged by Reau and Scott as an asset of Johnston-Tombigbee for the purposes of borrowing money for Johnston-Tombig-bee.
“ ‘On June 30, 2000, Reau purchased Scott’s ownership interest in Lounora (and thus his ownership interest in Johnston-Tombigbee) and became the sole owner and new president of Johnston-Tombigbee. Reau contends that he and Scott intended that he would be purchasing all the assets of Johnston-Tombigbee, including the Ziegler Tract, but that Scott has refused to convey his interest in the Ziegler Tract to Johnston-Tom-bigbee. Scott denies that he and Reau intended that Reau would be purchasing his ownership interest in the Ziegler Tract, and he contends that his interest in the Ziegler Tract was a personal asset given to him as a bonus for taking no salary from Johnston-Tombigbee in June 1988.’ ”

Ex parte Johnston-Tombigbee, 937 So.2d at 1036-37 (quoting Johnston-Tombigbee I, 937 So.2d at 1031-32).

Although our supreme court held that the claims asserted in Johnston-Tombig-bee’s amended complaint related back to the date of the filing of the original complaint, that court did not make a determination whether those claims were asserted within the period provided by the applicable statute of limitations. Rather, that court, as did this court upon original submission, analyzed the arguments pertaining to whether those claims related back while “ ‘[ajssuming that Johnston-Tombig-bee’s claims accrued on June 30, 2000.’ ” Ex parte Johnston-Tombigbee, 937 So.2d at 1038 (quoting Johnston-Tombigbee I, 937 So.2d at 1032).

In support of the trial court’s summary judgment, Scott maintains that the claims asserted by Johnston-Tombigbee in its amended complaint are barred by the applicable statute of limitations. See § 6-2-38(Z), Ala.Code 1975 (two-year statute of limitations applies to “[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section”); and Brooks v. Hill, 717 So.2d 759, 764 (Ala.1998) (“a claim alleging breach of fiduciary duty is governed by the two-year limitations period of § 6-2-38(£), Ala.Code 1975”). Johnston-Tombigbee, however, argues that its claims asserted in the amended complaint were timely asserted, and, therefore, that the trial court erred in entering a summary judgment on those claims.

Johnston-Tombigbee’s amended complaint, which sets forth the claims at issue, alleges that, with regard to the illegal-conversion/unjust-enrichment claim, “[Scott] used corporate funds that belonged to [Johnston-Tombigbee] to purchase the property in question, and that [Scott] titled the property in part in his individual name and has refused to convey his interest to the corporate plaintiff.” In support of its claim alleging loss of corporate opportunities, Johnston-Tombigbee alleged in its amended complaint that “[b]y using corporate funds and assets of [Johnston-Tombigbee] to purchase property for his own individual and personal profit and gain, [Scott] breached his fiduciary duty to [Johnston-Tombigbee].” Johnston-Tom-bigbee further alleged a claim that “[Johnston-Tombigbee] had an interest in the subject transaction and a reasonable expectancy in said business opportunity,” and that “[b]y using corporate assets and funds to purchase the subject property and then title the property in his individual name, [Scott] usurped a corporate opportunity, and, thereby, balked the corporate purpose.” In counts six and seven of its amended complaint, Johnston-Tombigbee, without alleging any specific facts, asserted that Scott’s conduct amounted to self-dealing and a waste of corporate assets.

Scott argues that Johnston-Tombigbee’s claims accrued in 1989, when Johnston-Tombigbee paid for the purchase of the Ziegler Tract and Reau Berry (“Reau”) and Scott placed the title to that property in their own names. Johnston-Tombigbee argues that its claims actually accrued in June 2000, when Reau purchased Scott’s interest in Johnston-Tombigbee and Scott refused to vest title to the Ziegler Tract in Johnston-Tombigbee. Johnston-Tombig-bee insists that its claims are predicated on Scott’s refusal to transfer ownership of the Ziegler Tract to Johnston-Tombigbee as a part of the June 2000 transaction in which he sold his interest in Johnston-Tombigbee to Reau.

After carefully reviewing the claims asserted in the amended complaint, however, we cannot agree with Johnston-Tombig-bee. The claims asserted by Johnston-Tombigbee, explained above, pertain to Scott’s conduct in 1989, when he and Reau used corporate funds to purchase property that they had titled in their individual names. Therefore, unless the applicable statute of limitations for claims based on a breach of a fiduciary duty was tolled, Johnston-Tombigbee’s claims are barred as untimely.

Johnston-Tombigbee argues that the applicable statute of limitations was tolled until June 2000, when Scott sold his interest in, and withdrew from his position as president of, Johnston-Tombigbee. Johnston-Tombigbee cites Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d 485 (Ala.1977), in support of its argument. In that case, our supreme court stated that “a corporate director is a quasi trustee, and as long as the fiduciary relationship between him and the corporation exists, the statute of limitations will not run against a claim based on his wrongdoing.” Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d at 487-88.

However, immediately after stating that the statute of limitations on a corporate director’s wrongdoing may be tolled, the court qualified that rule by explaining that “[t]his principle has been applied in cases based on self-dealing where the director himself was responsible for the concealment of facts upon which a claim could be based and where knowledge of those facts [was] solely within the director’s control.” Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d at 488 (citing Greenleaf v. Profile Cotton Mills, 235 Ala. 530, 180 So. 582 (1938), and Coxe v. Huntsville Gas Light Co., 106 Ala. 373, 17 So. 626 (1895)). The court went on to affirm the trial court’s determination that the statute of limitations had run on the corporation’s fraud claim against a former director because the corporation had knowledge “sufficient to provoke inquiry in reasonable minds which would have led to the facts on which the claim is based.” Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d at 488.

Similarly, it is undisputed that Johnston-Tombigbee knew in 1989 that it had paid for the Ziegler Tract and that the property had been placed in the names of Reau and Scott. That knowledge was sufficient to begin the running of the statute of limitations on any claims Johnston-Tombigbee might have asserted as a result of that transaction. We affirm the trial court’s summary judgment on the basis that the claims Johnston-Tombigbee asserted in its amended complaint accrued in 1989 and, therefore, that the statute of limitations had run with regard to those claims.

AFFIRMED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . The trial court entered a summary judgment in favor of Scott with regard to the claims asserted in Johnston-Tombigbee's original complaint, and Johnston-Tombigbee did not appeal the trial court's ruling with regard to those claims.

      . Johnston-Tombigbee insists that its conversion claim is subject to the six-year statute of limitations set forth in § 6-2-34, Ala.Code 1975. We need not address that issue, because, as discussed later in this opinion, that claim would still be barred as untimely because it accrued in 1989.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Virginia Tidwell WOOD v. Dana Haines COURTNEY, Tara Wilbur, and Terry Wilbur.
    2040017.
    Court of Civil Appeals of Alabama.
    June 10, 2005.
    Rehearing Denied Sept. 2, 2005.

      Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.C., Montgomery, for appellant.
    Mac Borland, Jr., Dothan, for appellees.
   THOMPSON, Judge.

Dana Haines Courtney (“Courtney”), Tara Harrelson Wilbur (“Tara”), and Terry Wilbur (“Terry”) sued Virginia Tidwell Wood (‘Wood”) seeking damages for injuries they allegedly suffered as a result of an automobile accident. Wood answered the complaint and denied liability. The matter was tried before a jury on May 3, 2004. The jury returned a verdict in favor of Courtney, Tara, and Terry (hereinafter referred to collectively as “the plaintiffs”). The plaintiffs filed a motion for a new trial in which they alleged that the jury had awarded insufficient damages. After conducting a hearing, the trial court entered an order granting the plaintiffs’ motion for a new trial. Wood timely appealed.

The plaintiffs are all related; Courtney is Tara’s mother, and Terry is Tara’s husband. The automobile accident that formed the basis for this dispute occurred on January 12, 2001. On that date, Courtney, Terry, and two other family members were passengers in an automobile (“the plaintiffs’ automobile”) owned by Courtney and driven by Tara. The plaintiffs’ automobile had stopped to wait for traffic to pass in order to make a left turn when Wood’s automobile struck it from the rear.

Courtney testified that she was in severe pain and was disoriented following the accident. Courtney was taken by ambulance to a hospital emergency room and was diagnosed as having suffered a concussion and a neck sprain or whiplash. Courtney was treated.and released from the hospital emergency room within a few hours. On cross-examination, Courtney agreed that the hospital medical records indicated that her cervical spine was “within normal limits” following the automobile accident.

Courtney testified that after the January 12, 2001, automobile accident, she sought treatment from Dr. Kirk Erickson, a chiropractor. Courtney testified that she stopped seeking treatment from Dr. Erickson after five to six months because she was embarrassed to owe such a large amount of money for that treatment. Courtney initially testified that the amount she owed Dr. Erickson was $1,569, but on cross-examination she stated that her health-insurance provider had paid approximately $630 of that amount. Also on cross-examination, Courtney admitted that although she claimed to have been in pain due to her injuries for some time after the accident, she had waited six weeks to seek treatment from Dr. Erickson.

Courtney presented evidence that after the automobile accident, she was billed $594.20 by the hospital, $385 by the ambulance service, and' $48 by a radiology practice that performed X-rays on Courtney in the hospital emergency room. Courtney testified that, in addition, she spent $6.10 on medication following the accident. She also claimed to have missed work because of the pain she had experienced after the automobile accident. Courtney stated that she had had to use $525 in vacation pay at that time. In addition to compensation for the foregoing amounts, Courtney also sought damages for pain and suffering and mental anguish.

Tara testified that immediately after the accident, she was able to walk around, talk on her cellular telephone, and check on her family members and Wood. Following the accident, Tara traveled by private vehicle to the hospital emergency room; she was treated and released within a few hours. Tara later sought treatment from Dr. Erickson for several months. She testified that the pain she suffered as a result of the January 12,.2001, automobile accident left her, for some period of time, unable to do many things, such as housework and taking care of her small child.

On cross-examination, Tara admitted that she had been in an automobile accident in 1992 or 1993 and that, as a result of that accident, she had suffered injuries to her neck and back and that the pain for which she .sought compensation as a result of the 2001 accident was the same as that she had suffered as a result of the earlier accident.

In addition to seeking damages for lost wages, mental anguish, and pain and suffering, Tara claimed damages for expenses she asserted arose as a result of the automobile accident. Those amounts included a $1,314.85 hospital bill, a $141 radiology-practice bill for X-rays performed in the hospital emergency room, $1,936 in chiropractic fees, and $16.20 for medication.

Terry testified that he was not injured as a result of the automobile accident and that he was not treated at the hospital emergency room after that accident. Terry testified that he sought medical treatment for stiffness two days after the accident and that that treatment had cost $137. Terry also asserted a claim for $136 in lost wages, and he sought damages on his claim alleging loss of consortium.

The jury returned a verdict in favor of each of the plaintiffs. The jury awarded Terry no damages, but it awarded Courtney $1,113 in damages and it awarded Tara $1,342 in damages. In its post-judgment order, the trial court found that the jury had awarded Courtney and Tara inadequate damages and that the jury verdict was inconsistent with regard to Terry.

On appeal, Wood argues that the trial court erred in granting the motion for a new trial with regard to Terry. However, it is well settled that a jury verdict that is in favor of a party but that awards that party no damages is inconsistent. Alabama Power Co. v. Epperson, 585 So.2d 919 (Ala.1991); Moore v. Clark, 548 So.2d 1352 (Ala.1989); and Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980). This court has explained that “[a] finding of damage or injury is a prerequisite to a verdict in the plaintiffs favor. To find in favor of the plaintiff and then to award no damages is, as a matter of law, inconsistent on its face. Ward v. Diebold, Inc., 486 So.2d 1261 (Ala.1986).” Romans v. J.P. Mills, Inc., 844 So.2d 1239, 1242 (Ala.Civ.App.2002). Therefore, we find Wood’s argument on this issue to be without merit, and,we affirm the trial court’s granting the motion for a new trial with regard to Terry’s claims.

Wood also argues that the trial court erred in granting the motion for a new trial with regard to Courtney and Tara on the basis that the jury had awarded those two plaintiffs inadequate damages. In Jawad v. Granade, 497 So.2d 471 (Ala.1986), our supreme court reversed an earlier standard adopted in a number of cases from dicta in Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891), that stated that a grant of a new trial.on the ground that the jury’s verdict was against the preponderance of the evidence would be reversed only if the evidence “ ‘plainly and palpably supported] the [jury’s] verdict’ in doing so, the supreme court set forth a new standard. See Jawad v. Granade, 497 So.2d at 474 (quoting' Cobb v. Malone, 92 Ala. at 635, 9 So. at 740) (emphasis omitted). The rules pertaining to the denial or grant of a motion for a new trial based on the inadequacy of the jury’s damages award are correlative to the rules pertaining to a ruling on a motion alleging that a verdict was against the weight of the evidence. Spears v. Bishop, 339 So.2d 75, 76-77 (Ala.Civ.App.1976); see also Deal v. Johnson, 362 So.2d 214, 219 (Ala.1978) (“The basic reason for disturbing a jury verdict because of inadequate damages is the same as stated previously regarding verdicts contrary to the preponderance of the evidence.”); Yarbrough v. Mallory, 225 Ala. 579, 144. So. 447 (1932); O’Daniels v. Bates, 456 So.2d 807 (Ala.Civ.App.1984); and Sweet v. Foust, 419 So.2d 260 (Ala.Civ.App.1982). Thus, the standard set forth in Jawad, supra, applies to the grant of a motion for a .new trial on the basis of an award of inadequate damages. See Helena Chem. Co. v. Ahern, 496 So.2d 12, 15 (Ala.1986) (applying Jawad and reversing the trial court’s granting a motion for a new trial after concluding that the jury’s verdict was supported by the evidence and not against the weight of the evidence), and Courtesy Ford Sales, Inc. v. Hendrix, 536 So.2d 88, 90 (Ala.Civ.App.1988) (applying the standard set forth in Jawad and reversing the trial court’s granting a motion for a new trial on the basis of inadequate damages).

The standard for the review of a trial court’s' granting a motion for a new trial, as set forth by our supreme court in Jawad, supra, is as follows:

“[A]n order granting a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence.”

Jawad, 497 So.2d at 477.

It is well settled that once liability is proven, a jury’s verdict must award damages in an amount at least as high as the uncontradicted damages, as well as an amount to compensate the plaintiffs for pain and suffering. Jones v. Butts, 646 So.2d 104, 105 (Ala.Civ.App.1994); McCullough Appliance, Inc. v. Suit, 628 So.2d 779 (Ala.Civ.App.1993); and Nix v. Key, 682 So.2d 1371 (Ala.Civ.App.1996). However, a jury is not required to award a plaintiff damages merely because certain medical expenses were incurred. Wells v. Mohammad, 879 So.2d 1188 (Ala.Civ.App.2003); and Savoy v. Watson, 852 So.2d 137 (Ala.Civ.App.2002).

“When evidence pertaining to medical expenses is admitted, the jury is free to conclude that some or all of those expenses were unnecessary, or that those expenses were not incurred as a result of the negligence of the defendant. Savoy v. Watson, [852 So.2d 137 (Ala.Civ.App.2002)] (citing Kite v. Word, 639 So.2d 1380 (Ala.Civ.App.1994), and quoting Bennich v. Kroger Co., [686 So.2d 1256 (Ala.Civ.App.1996) ]). A jury may question the “reasonableness and necessity of expenses and determine whether the claimed medical expenses are proximately caused by the negligence of the defendant.” ’ Kite v. Word, 639 So.2d at 1381 (quoting Vinzant v. Hughes, 579 So.2d 681, 683 (Ala.Civ.App.1991)).”

Wells v. Mohammad, 879 So.2d at 1193.

The plaintiffs contended in their motion for a new trial that in addition to her claims for lost wages, pain and suffering, and mental anguish, Courtney had incurred uncontradicted expenses totaling $2,602.30 and that the jury should have awarded her at least that amount in damages. On appeal, Wood argues that the medical expenses incurred by Courtney were not “uncontradicted,” and, therefore, that the jury was free to question the necessity of those expenses. See Wells v. Mohammad, supra. Wood concedes that she did not present evidence contradicting the reasonableness or necessity of the medical expenses Courtney claimed to have incurred as a result of the injuries caused by the January 12, 2001, automobile accident. Rather, Wood argues that her cross-examination of the witnesses called into question the necessity of many of the medical expenses Courtney claimed were required as a result of the accident. “Conflicts and weaknesses in the plaintiffs case may also be created through cross-examination of the plaintiffs witnesses.” Bennich v. Kroger Co., 686 So.2d 1256, 1257 (Ala.Civ.App.1996) (citing Brannon v. Webster, 562 So.2d 1337, 1338 (Ala.Civ.App.1990)).

In this case, the testimony Wood elicited on cross-examination indicated that the treatment notes generated at the emergency room indicated that Courtney did not receive any significant injury as a result of the January 12, 2001, automobile accident. Further, Wood cross-examined Courtney on the issue of the necessity of the chiropractic treatment she received after the accident. Courtney claimed to have been extremely sore and in pain for quite some time after the automobile accident. However, other than the visit to the hospital emergency room immediately following the accident, Courtney did not seek medical treatment for her alleged injuries until approximately six weeks after the accident. That evidence, together with the responses to the questioning regarding Courtney’s testimony pertaining to the amount she owed Dr. Erickson, could have impacted the jury’s perception of Courtney’s credibility regarding the extent of her injuries and damages.

‘Where there is a dispute regarding the damages the plaintiff incurred as a proximate result of the defendant’s wrongful conduct, the determination of a damages award is exclusively within the discretion of the jury and the jury’s assessment should be afforded a strong presumption of correctness. Sizemore v. Patel, 702 So.2d 172, 174 (Ala.Civ.App.1997); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990); Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988). Furthermore, in exercising its discretion, a jury has the exclusive right to weigh evidence, give credibility (or not) to witnesses, and draw inferences from the evidence before it. Brannon, 562 So.2d at 1339; Slaughter v. Burrell, 669 So.2d 954, 955 (Ala.Civ.App.1995).”

Savoy v. Watson, 852 So.2d at 140.

Given the evidence in this case, we conclude that a reasonable jury could have questioned the necessity of at least the expenses Courtney claimed to have incurred in chiropractic treatment as a result of the automobile accident. See White v. Searcy, 634 So.2d 577 (Ala.Civ.App.1994) (affirming the trial court’s denial of a motion for a new trial on the basis of inadequate damages where the jury could have concluded that the plaintiffs injuries were not as substantial as she claimed). The jury awarded Courtney $1,113 in damages; that amount is in excess of the total “un-contradicted” damages claimed by Courtney minus the chiropractic charges ($2,602.30 minus $1,569 = $1,033.30). We conclude that “[i]n this case, as in Savoy v. Watson, supra, ‘the damages award [with regard to Courtney] is one that reasonable jurors could have made based on the particular record presented.’ 852 So.2d at 141.” Wells v. Mohammad, 879 So.2d at 1195. Based on our review of the evidence in the record on appeal, we conclude that it is “easily perceivable from the record that the jury verdict is supported by the evidence.” Jawad, 497 So.2d at 477. Therefore, we must hold that the trial court erred in granting the motion for a new trial as it pertained to Courtney. Jawad, supra; Helena Chem. Co. v. Ahern, supra; and Courtesy Ford Sales, Inc. v. Hendrix, 536 So.2d at 91 (“[TJhere was clearly evidence to support the verdict of the jury and ... the presence of such evidence precludes the trial court from exercising such statutory or supervisory' power over the verdict as to set it aside.”).

Wood also argues that the trial court erred in granting a new trial on Tara’s claims on the basis of inadequate damages. Tara claimed to have “uncon-tradicted” damages totaling $3,408.05. Wood maintains that on cross-examination she questioned the necessity of many of the medical expenses Tara claimed arose as a result of the January 12, 2001, automobile accident.

Through her cross-examination, Wood did question the necessity of Tara’s chiropractic treatment. Also, Wood called into question whether the injuries Tara claimed to have suffered as a result of the January 12, 2001, automobile accident were caused by that accident or by the automobile accident in which Tara was involved in 1992 or 1993. Wood also elicited testimony indicating that Tara was walking around immediately following the automobile accident. Tara testified, however, that she began to feel stiffness and pain within 45 minutes of the automobile accident and that she then sought medical treatment at the hospital emergency room.

After reviewing the record, we cannot say that Wood called into question the necessity of the treatment Tara received in the hospital emergency room immediately following the automobile accident. Therefore, we must conclude that, at the very least, the medical expenses Tara incurred at the hospital emergency room were un-contradicted.

The jury awarded Tara $1,342 in damages. That amount does not compensate Tara for the uncontradicted damages she incurred in hospital and X-ray charges, which totaled $1,455.85. We conclude that the trial court properly determined that the jury’s damages award to Tara was inadequate. “In reviewing the record, we are of the opinion that ... it is ‘easily perceivable’ that the jury verdict is unsupported by the evidence.” Burt v. Mathis, 550 So.2d 1041, 1042 (Ala.Civ.App.1989). Therefore, we hold that the trial court did not err in granting the motion for a new trial as to Tara’s claims, and we affirm as to this issue. See McCullough Appliance, Inc. v. Suit, 628 So.2d at 780 (affirming the trial court’s grant of a motion for a new trial where the jury’s verdict did not “include an amount at least as high as the uncontradicted damages, as well as an amount sufficient to compensate for pain and suffering”).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and BRYAN, JJ., concur in the result, without writing.

MURDOCK, J., concurs in part, concurs in the result in part, and dissents in part, with writing, which CRAWLEY, P.J., joins.

MURDOCK, Judge,

concurring in part; concurring in the result in part; and dissenting in part.

I concur in the main opinion as it relates to the affirmance of the trial court’s order granting a new trial to Terry. I concur in the result reached by the main opinion in affirming the trial court’s order granting a new trial to Tara. As to the main opinion’s conclusion that this court must reverse the trial court’s decision to grant a new trial to Courtney, however, I respectfully dissent.

As this court has stated:

“We initially note that jury verdicts are presumed to be correct and should not be reversed unless plainly and palpably wrong. Whisenant v. Nationwide Mutual Fire Ins. Co., 577 So.2d 909 (Ala.1991). Whether a trial court grants or denies a motion for a new trial is a decision committed to its sound discretion, and this court will not reverse on appeal absent a showing of an abuse of that discretion. Franklin v. Cannon, 565 So.2d 119 (Ala.1990). It is the duty of the trial court to grant a new trial for inadequate damages where, after making allowances, the verdict is clearly unjust. Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980).”

McCullough Appliance, Inc. v. Suit, 628 So.2d 779, 780 (Ala.Civ.App.1993). I take note of the uncontroverted evidence in the record regarding the severity of the collision between the automobiles, the uncon-troverted emergency-room diagnosis (contrary to the statement in the main opinion that Courtney was told she had suffered no significant injury) that Courtney suffered a concussion and a neck sprain as a result of the collision, and the fact that Courtney was prescribed Darvocet by the emergency-room physician and was instructed by that physician not to return to work for 72 hours (Courtney testified, in fact, that due to her pain and the effects of her medication, she remained out of work for more than 72 hours, resulting in lost wages). On the record before us, I cannot conclude that the trial court abused its discretion in granting a new trial as to Courtney.

CRAWLEY, P.J., concurs.

      . The total "uncontradicted" amount of damages Courtney itemized in both her post-judgment motion submitted to the trial court and in her brief submitted to this court on appeal were as follows:

        Hospital emergency room charges $ 594.20 Radiology charges
      (emergency room) 48.00
      Ambulance charges 385.00
      Prescription medication 6.10
      Chiropractic charges 1,569.00
      TOTAL $2,602.30

      . Courtney testified on cross-examination on this issue as follows:
      "Q. And upon arriving at the emergency room, [X]-rays were taken and you were provided with some prescription medication for your pain?
      "A. Yes, sir.
      “Q. And you had no broken bones?
      “A. No.
      “Q. No reason for admission to the hospital and you were sent home within three hours of arriving at the emergency room?
      "A. I do not know the time frame, sir.
      "Q. You were sent home within a few hours of arriving, correct?
      "A. Yes, sir.
      "Q. Now, isn't it true that you do not remember being told that you had any significant injuries or any other reason for being admitted to the hospital, correct?
      "A. Correct.”

      . Tara claimed the following "uncontradict-ed” damages:
      Hospital emergency room charges $1,314.85
      Radiology charges
      (emergency room) 141.00
      Prescription medication 16.20
      Chiropractic charges 1,936.00
      TOTAL $3,408.05

      . The hospital charges in the amount of $1,314.85 plus $141 for X-rays Tara received in the hospital emergency room equals $1,455.85.