author: SMITH, Justice.

text:
    Richard SOLOMON, Judy A. Hughes, and William Lester Scarbrough v. LIBERTY NATIONAL LIFE INSURANCE COMPANY, Torchmark Corporation, Barbara J. Roberts, Duane Johnson, Mary E. Nalley, and Raymond A. Abston. Charlie Frank Robertson v. Liberty National Life Insurance Company, Torchmark Corporation, Barbara J. Roberts, Duane Johnson, Mary E. Nalley, and Raymond A. Abston. Ivan Smith v. Liberty National Life Insurance Company, Torchmark Corporation, Barbara J. Roberts, Duane Johnson, Mary E. Nalley, and Raymond A. Abston. Robert A. Barton v. Liberty National Life Insurance Company, Torchmark Corporation, Barbara J. Roberts, Duane Johnson, Mary E. Nalley, and Raymond A. Abston.
    1040816, 1040926, 1040927, and 1040928.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellants Judy A. Hughes and William Lester Scarbrough.
    Jere L. Beasley, W. Daniel “Dee” Miles III, and Clinton C. Carter of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant Charlie Frank Robertson.
    Kenneth W. Hooks, Chris T. Heliums, and David Hodge of Pittman, Hooks, Dut-ton, Kirby & Heliums, P.C., Birmingham, for appellant Ivan Smith.
    Barry A. Ragsdale of Ivey & Ragsdale, Birmingham, for appellant Robert A. Barton.
    Matthew H. Lembke, Michael R. Pennington, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham; and William J. Baxley and Charles A. Dauphin of Baxley, Dillard, Dauphin,
    McKnight & Barelift, Birmingham, for ap-pellees Liberty National Life Insurance Company and Torchmark Corporation.
    Ted Taylor, Leah 0. Taylor, and Rhonda P. Chambers of Taylor & Taylor, Birmingham; and William L. Utsey of Utsey & Utsey, Butler, for the subclass representatives and the subclass members.
   SMITH, Justice.

These four appeals arise from the certification by the Barbour Circuit Court of a “subclass” for purposes of approving a settlement in a class action filed against Liberty National Life Insurance Company and Torchmark Corporation, its parent company (collectively “Liberty National”). Because the trial court lacked subject-matter jurisdiction to certify the subclass and to enter a final judgment approving the settlement, we vacate the trial court’s judgment and dismiss the appeals.

Facts and Procedural History

This decision is at least the fifth opinion by this Court in the last 13 years addressing claims of a class of holders of cancer-insurance policies sold by Liberty National. The most recent of those decisions, Ex parte Liberty National Life Insurance Co., 888 So.2d 478 (Ala.2003), includes the following facts and procedural history relevant to the present case;

“Barbara Roberts, Duane Johnson, and Mary Nalley sued Liberty National in the Choctaw Circuit Court, alleging breach of contract, unjust enrichment, misrepresentation, and suppression. The action was brought on behalf of them and a class of persons who were the insureds under certain types of cancer-insurance policies sold by Liberty National (hereinafter ‘the plaintiffs’). The plaintiffs alleged that Liberty National failed to inform them that it had closed their block of insurance policies and that Liberty National had actively misrepresented the reasons for the increase in the amount of their premiums.
“The plaintiffs were all members of the class certified in Adams v. Robertson, 676 So.2d 1265 (Ala.1995). Robertson, a class action filed in the Barbour Circuit Court, involved over 400,000 policyholders of Liberty National Life Insurance Company cancer insurance (hereinafter the ‘RobeHson class’). The RobeHson class alleged that Liberty National Life Insurance Company had fraudulently encouraged them to switch their insurance policies (‘the old policies’) for new policies that provided less coverage (‘the new policies’). The Rob-eHson class included both persons who had switched to the new policies and those who had retained their old policies. The action was settled, and the settlement, as modified, was approved by the trial court; its order was affirmed by this Court.
“The settlement required Liberty National Life Insurance Company to offer to the members of the RobeHson class insurance policies with substantially all of the benefits of the old and new policies; it also prevented Liberty National Life Insurance Company from increasing premiums on the policies for three years and from ever increasing premiums by an amount that would result in a loss ratio of less than 55%. These ‘special policies’ were never offered to persons outside the Robertson class. After three years, the premiums for the Robertson class increased substantially, but never exceeded the limit set forth in the Robertson settlement.
“After Liberty National Life Insurance Company increased the premiums, the plaintiffs filed this action in the Choctaw Circuit Court against Liberty National, seeking another class certification. In response, Liberty National filed a motion to dismiss or, in the alternative, for a summary judgment. The basis of its motion was 1) that the Rob-eHson settlement gave the Barbour Circuit Court continuing jurisdiction over matters related to the RobeHson settlement and its enforcement and that, therefore, the Choctaw Circuit Court lacked subject-matter jurisdiction, 2) that the current action was barred by the res judicata effect of Robertson, and 3) that the claims now being asserted by the plaintiffs had been released as a part of the Robertson settlement. The court denied the motion.
“Liberty National then filed a motion to alter, amend, or vacate the order denying its motion or, in the alternative, to certify the order for an interlocutory appeal, pursuant to Rule 5, Ala. R.App. P. The court denied that motion as well. Liberty National now seeks a writ of mandamus ordering the trial judge either to dismiss the action or to certify for an interlocutory appeal his denial of its motion to dismiss.
Duane Johnson, one of the plaintiffs, did not switch to the ‘special policy’ created by the Robertson settlement. Instead, he retained his ‘old policy.’ Nonetheless, the Robertson settlement adjudicated the relief to be afforded to Robertson class members who had ‘old policies.’ The Robertson settlement gave them the option to exchange their ‘old policies’ for ‘special policies.’ ”

888 So.2d at 479-80.

This Court granted Liberty National’s petition for a writ of mandamus directing the Choctaw Circuit Court to dismiss the action. This Court concluded that because “[t]he Barbour Circuit Court [had] expressly retained continuing jurisdiction over matters relating to the Robertson settlement and the enforcement of that settlement” “the Choctaw Circuit Court [did] not have jurisdiction to hear this action, which [was] essentially an attack in another circuit court on the Robertson settlement.” 888 So.2d at 481.

On December 30, 2003 — the date of this Court’s decision in Liberty National — the plaintiffs in Liberty National (hereinafter referred to as “the Roberts plaintiffs”) initiated the present action by filing in the Barbour Circuit Court a complaint identical to the complaint they had filed in the Choctaw Circuit Court. The action was designated in the Barbour Circuit Court as case no. CV-03-137.

Liberty National filed a motion to dismiss, asserting, among other things, that the Roberts action in case no. CV-03-137 was barred by the pendency of the Robertson action in case no. CV-92-021 in the Barbour Circuit Court and by that court’s retention of continuing jurisdiction over all matters “relating to” the settlement in case no. CV-92-021. Before that motion was ruled upon, however, Liberty National and the Roberts plaintiffs submitted a proposed class settlement to the Barbour Circuit Court for its preliminary approval. The proposed settlement defined the class (hereinafter referred to as “the Roberts class” or “the Roberts subclass” ) as:

“All persons who currently own any Liberty National cancer policy providing benefits for radiation, chemotherapy, prescription chemotherapy drugs, or other out-of-hospital prescription drugs without monetary limits, either by virtue of the policy’s written terms or by virtue of any prior judicial decree, and all other persons who currently own a Liberty National cancer policy that was placed in the same pool of policies for rate making purposes with [the cancer policies of the] Named Plaintiffs [Roberts, Johnson, Nalley, and Abston].”

The primary feature of the proposed settlement was a “new benefit procedure” for the cancer policies held by members of the Roberts class. Since the Robertson settlement, Liberty National generally has paid benefits under the cancer policies according to the amount stated on the medical bill of a policyholder. The new benefit procedure, however, defined the terms “usual and customary charge” and “reasonable and customary charge” — as those terms are used in the policies held by members of the Roberts class — as limiting benefit payments to the Medicare-approved amount for medical expenses or treatments covered by the policy. The new benefit procedure was an effort to reduce the amount of premiums due from policyholders by reducing the amount of benefits Liberty National paid under the policies.

On May 11, 2004, the trial court in case no. CV-03-137 entered an order preliminarily approving the settlement and the proposed class under Rules 23(a), 23(b)(1)(A), 23(b)(1)(B), and 23(b)(2), Ala. R. Civ. P. The trial court’s order included a notice to be sent to members of the Roberts class informing them that a settlement had been proposed and that a hearing regarding the fairness of the settlement was scheduled for July 15, 2004. Among other things, the notice also informed the members of the Roberts class of their rights to object, to be heard, to present evidence, to retain counsel, and to attend the fairness hearing.

Notice was mailed to the last known address of each of the members of the Roberts class, which numbered roughly 50,000. Approximately 80 members of the Roberts class objected, including each of the appellants.

In particular, Charlie Frank Robertson — one of the appellants here and the named representative of the Robertson class — filed an objection to the class certification and settlement. Among other things, Robertson contended, as this Court held in Liberty National, that the claims of the Roberts class “related to” the settlement in case no. CV-92-021 and that, therefore, the Barbour Circuit Court did not have subject-matter jurisdiction to entertain the claims of the Roberts class outside the pending Robertson action in case no. CV-92-021. Robertson argued that the Roberts action was due to be dismissed, and, citing Grimes v. Liberty National Life Insurance Co., 726 So.2d 615 (Ala.1998), Robertson requested that the trial court enforce the injunction in the settlement agreement in case no. CV-92-021 that prohibited members of the Rob ertson class from “ ‘filing, initiating, asserting, maintaining, pursuing, or continuing or participating as a litigant (by intervention or otherwise) in any action, whether an individual lawsuit or class action, in any court, asserting any of the claims dismissed [in case no. CV-92-021] or any of the Released Claims as defined in the ... Settlement.’” Grimes, 726 So.2d at 616 (quoting the judgment in case no. CV-92-021); Robertson, 676 So.2d at 1306.

At the hearing on July 15, 2004, the trial court heard from counsel appearing on behalf of the Roberts class, Liberty National, and several objectors. The court also heard from objectors appearing without counsel. The court appointed a special master to meet with the objectors, to analyze their objections, and then to report to the court. The trial court adjourned the hearing and scheduled it to reconvene on September 23, 2004.

At the reconvened hearing on September 23, 2004, the trial court again heard from counsel for the parties and several objectors, as well as individual objectors appearing without counsel.

On November 22, 2004, the trial court, in a 44-page order, entered findings of fact and conclusions of law regarding the proposed settlement. In that order, the trial court, sua sponte, purported to “consolidate” the Roberts action (case no. CV-03-137) with the Robertson action (case no. CV-92-021) and designated the Roberts class as a “subclass” of the Robertson class. Among other things, the trial court concluded that all the necessary prerequisites for maintenance of a class action under Rule 23, Ala. R. Civ. P., and § 6-5-641, Ala.Code 1975, had been met and that the proposed settlement was “fair, reasonable, and adequate.” The trial court entered a separate final judgment approving the settlement.

Counsel for the Robertson class timely filed a motion to alter, amend, or vacate the court’s final judgment approving the settlement. Other objectors joined the motion. The circuit court denied the motion on February 1, 2005. Objectors to the settlement timely filed four separate notices of appeal; the defendants and the plaintiffs in the Roberts action are appel-lees in those appeals.

Discussion

The appellants contend that the trial court lacked subject-matter jurisdiction over the claims asserted by the Roberts plaintiffs. The appellants advance a number of arguments in that regard, but it is necessary to address only one of the arguments raised — the argument that because the Roberts plaintiffs’ claims are a collateral attack on case no. CV-92-021 and because of the continuing jurisdiction reserved by the trial court in case no. CV-92-021, the trial court lacked subject-matter jurisdiction to adjudicate the claims of the Roberts plaintiffs outside case no. CV-92-021. The appellants contend that because the trial court did not have subject-matter jurisdiction to consider case no. CV-03-137, the trial court’s actions and orders in case no. CV-03-137 are void. We agree.

We review de novo whether the trial court had subject-matter jurisdiction. State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005). The appellants cite this Court’s holding in Liberty National: “Because the Barbour Circuit Court has jurisdiction over matters relating to the Robertson settlement and its enforcement and because the current action relates to the Robertson settlement and its enforcement, ... the Choctaw Circuit Court does not have subject-matter jurisdiction.” 888 So.2d at 481. The appellants also rely on this Court’s conclusion in Liberty National that the claims presented by the Roberts plaintiffs in the Choctaw Circuit Court were an impermissible collateral attack on the judgment in case no. CV-92-021. 888 So.2d at 481 (“[T]he current action essentially attempts to attack collaterally in another circuit court portions of the Robertson settlement.”). Even though the current Roberts action was filed in the Barbour Circuit Court, the appellants argue that the action in case no. CV-03-137 remained an independent action throughout the proceedings in the Barbour Circuit Court. Thus, the appellants contend, the Roberts action in case no. CV-03-137 is an impermissible collateral attack on the judgment in case no. CV-92-021. We agree.

As noted, the complaint filed in case no. CV-03-137 is identical to the complaint the Roberts plaintiffs filed in the Choctaw Circuit Court in Liberty National. This Court in Liberty National described the Roberts plaintiffs’ claims in the Choctaw Circuit Court as “essentially attempting] to attack collaterally in another circuit court portions of the Robertson settlement” because those claims sought to “attack ... aspects of the Robertson settlement ... [that] were litigated at the fairness hearing, approved by the trial court, and reviewed by this Court” in Robertson. Liberty National, 888 So.2d at 481 (emphasis added). This Court then stated:

“This type of collateral attack is not permitted. The boundary lines between courts of concurrent jurisdiction must be preserved. ‘ “ ‘[W]here two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.’ ” ’ Ex parte First Nat’l Bank of Jasper, 717 So.2d 342, 350 (Ala.1997) (quoting Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d 865, 867 (Ala.1993), quoting in turn Ex parte State ex rel Ussery, 285 Ala. 279, 281, 231 So.2d 314, 315 (1970)).”

888 So.2d at 481.

As the appellants argue, unless brought within the Robertson action in case no. CV-92-021, the claims of the Roberts plaintiffs asserted as a separate action— whether filed in the Choctaw Circuit Court or the Barbour Circuit Court — are an impermissible collateral attack on the Robertson settlement. See Manning v. Wingo, 577 So.2d 865, 866-68 (Ala.1991) (rejecting a separate action seeking to set aside a prior judgment of the Autauga Circuit Court; the separate action, even though filed in the same circuit court that had rendered the judgment under attack, nevertheless was an impermissible collateral attack).

The Roberts plaintiffs contend, however, that filing their action in the Barbour Circuit Court corrected the jurisdictional problem noted in Liberty National, and Liberty National contends that any error resulting from the failure of the Roberts plaintiffs to bring their claims within Robertson either was harmless or was cured by the trial court’s sua sponte consolidation of the Roberts action with Robertson. Liberty National argues that the Roberts action was brought before the circuit court having continuing jurisdiction over Robertson and was ruled upon and consolidated with Robertson expressly in accordance with that continuing jurisdiction. In short, Liberty National argues that any procedural error in the Roberts plaintiffs’ filing a separate action in the Barbour Circuit Court rather than asserting their claims within case no. CV-92-021 was “more cosmetic than substantive.” See Filer v. Filer, 502 So.2d 698, 700 (Ala.1987) (“Although a motion to enforce the divorce decree might have been preferable to a second suit, this error is more cosmetic than substantive.”). We disagree.

In Filer, Betty Filer and Alvin Filer were divorced in 1982, and the divorce judgment required that the Filers’ residence be sold and the proceeds divided equally. 502 So.2d at 698-99. Three months after the divorce, however, Alvin filed a petition in the court that had entered the divorce judgment; Alvin alleged that Betty had rejected an offer to sell the residence, and Alvin sought a reduction in his alimony and child-support obligations. The trial court granted Alvin’s petition, but the court found that Betty “was not in contempt of court as to her rejection of the offer to buy the house.” 502 So.2d at 699.

In 1983, Betty filed a petition to modify the divorce judgment; Alvin cross-petitioned and alleged that Betty “was frustrating attempts to sell the house.” 502 So.2d at 699. On February 24, 1984, the trial court dismissed Alvin’s cross-petition without prejudice.

When the residence remained unsold, Alvin brought a separate action in May 1984 to compel its sale, and the trial court granted Alvin’s subsequent motion for sale. The residence was then sold at auction, and the trial court approved the sale. 502 So.2d at 699-700.

Among other things, this Court rejected Betty’s argument on appeal that Alvin’s 1984 action to compel the sale of the house was an impermissible collateral attack on the 1982 divorce judgment. In particular, Betty argued that the 1984 action “was not the proper vehicle for seeking enforcement of the provision of the divorce decree pertaining to the sale of the residence.” 502 So.2d at 700. This Court stated, however, that “[although a motion to enforce the divorce decree might have been preferable to a second suit, this error is more cosmetic than substantive.” 502 So.2d at 700.

In that regard, however, Filer is distinguishable from the present case. First, this Court has already described the Roberts plaintiffs’ claims as a collateral attack on the Robertson settlement.

Second, unlike this case, in which the appellants vigorously object to the trial court’s exercise of jurisdiction in case no. CV-03-137, in Filer “[b]oth parties to [the appeal] concede[d] that the court had jurisdiction to hear the case.” 502 So.2d at 700 (first emphasis added). This Court emphasized that

“[t]he Circuit Court of Jefferson County had jurisdiction in this case, whether the form of the action was a motion to enforce the divorce judgment or a separate suit. Mrs. Filer was not prejudiced simply because Mr. Filer chose to file a separate suit. Regardless of form, the relief which Mr. Filer sought under either procedure was to get the parties’ property sold.”

502 So.2d at 700 (emphasis added).

Third, there is no indication the 1982 divorce judgment in Filer included a reservation of continuing jurisdiction over all matters “relating to” the divorce judgment or a permanent injunction prohibiting the Filers from instituting in “any court” a separate action involving matters related to the judgment. In this case, however, the final judgment in case no. CV-92-021 reserved jurisdiction over all matters “relating to [its] Settlement.” This Court in Liberty National concluded that the Robertson settlement prevented the Choctaw Circuit Court from obtaining subject-matter jurisdiction over the claims of the Roberts plaintiffs (which we have noted were identical to the claims presented by the Roberts plaintiffs in their complaint in case no. CV-03-137):

“The Robertson settlement provided that the Barbour Circuit Court reserved and maintained
“ ‘continuing jurisdiction over all matters relating to the Settlement or the consummation of the Settlement; the validity of the Settlement; the construction and enforcement of the Settlement and any orders entered pursuant thereto; ... and all other matters pertaining to the Settlement or its implementation and enforcement.’
“Robertson, 676 So.2d at 1307. Thus, the Barbour Circuit Court in Robertson expressly retained continuing jurisdiction over matters ‘relating to’ the Robertson settlement and the enforcement of that settlement.
“This action involves matters ‘relating to’ the Robertson settlement and its enforcement ....
“The Barbour Circuit Court expressly retained continuing jurisdiction over matters relating to the Robertson settlement and the enforcement of that settlement. Therefore, the Choctaw Circuit Court does not have jurisdiction to hear this action, which is essentially an attack in another circuit court on the Robertson settlement.”

888 So.2d at 480-81 (emphasis added).

Simply refiling in the Barbour Circuit Court the complaint they had filed in the Choctaw Circuit Court did not remove the jurisdictional bar imposed by the final judgment in case no. CV-92-021. Rather than seeking to have the Barbour Circuit Court address the claims asserted by the Roberts plaintiffs within case no. CV-92-021 as matters related to the Robertson settlement, the Roberts plaintiffs sought certification of a new “class” in an independent action. Until its sua sponte “consolidation” of case no. CV-03-137 into case no. CV-92-021 in its order of final judgment, the trial court did not purport to act under its reserved continuing jurisdiction in case no. CV-92-021. The consolidation order, however, did not solve the jurisdictional problem created by the Roberts plaintiffs’ presenting their claims in an action independent from case no. CV-92-021.

The appellants point out that when two or more actions are consolidated under Rule 42, Ala. R. Civ. P., the actions do not lose their separate identities. League v. McDonald, 355 So.2d 695, 697 (Ala.1978). Moreover, “[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.” Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed.2001) (citing Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App. 1980)). Finally, “⅛ consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.’ ” Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005) (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 438 (Civ.1976)). Thus, the trial court’s sua sponte “consolidation” order did not change the status of case no. CV-03-137 from an independent action to a properly brought action within the Barbour Circuit Court’s continuing jurisdiction under case no. CV-92-021. Consequently, the trial court did not have subject-matter jurisdiction over case no. CV-03-137, and its order of consolidation was void — indeed, any action it took in case no. CV-03-137, other than a dismissal of the claims, was void. Gulf Beach Hotel, Inc. v. State, 935 So.2d 1177, 1182 (Ala.2006) (“Where ‘the trial court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025,1029 (Ala.1999).

‘ “Any other action taken by a court lacking subject matter jurisdiction is null and void.” ’ Id. (quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App. 1996)).”).

Conclusion

The judgment of the trial court is vacated, and the appeals are dismissed.

JUDGMENT VACATED; APPEALS DISMISSED.

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

LYONS and PARKER, JJ., recuse themselves.

      . Prior decisions of this Court related to the present case include Ex parte Liberty National Life Insurance Co., 888 So.2d 478 (Ala.2003); Grimes v. Liberty National Life Insurance Co., 726 So.2d 615 (Ala. 1998); Adams v. Robertson, 676 So.2d 1265 (Ala.1995); and Ex parte Liberty National Life Insurance Co., 631 So.2d 865 (Ala. 1993).

      . The plaintiffs in Liberty National and in this case include Barbara J. Roberts, Duane Johnson, and Mary E. Nalley. Roberts, Johnson, and Nalley later amended the complaint in this action to include Raymond A. Abston as a named plaintiff. The members of the class the Roberts plaintiffs sought to represent are actually those members of the class originally certified in Robertson — which we refer to as “the Robertson class” — whose cancer polices have not lapsed or otherwise ceased to be in effect.

      . Liberty National also argued that under this Court’s reasoning in Liberty National the doctrine of res judicata barred the Roberts action.

      . As we discuss, the trial court in this case purported to “consolidate” the Roberts class action with the Robertson class action and then designated the Roberts plaintiffs’ class as a "subclass” of the original Robertson class. See also supra note 2.

      . The parties to this appeal agree that the only individuals who meet this class definition are the remaining members of the Robertson class whose policies are still in effect. Thus, the Roberts class, in a sense, is the Robertson class.

      . The proposed settlement included exceptions to the Medicare-approved-amount limit. For example, the settlement included provisions to ensure that policyholders not eligible for Medicare or covered by primary health insurance would not incur any out-of-pocket expenses as a result of the new benefit procedure. In addition, policyholders who had received treatment for cancer within 60 days preceding the effective date of the new benefit procedure were entitled for 12 months after final approval of the settlement to continue receiving benefits in the same manner that Liberty National had previously calculated benefits.

      . The proposed settlement included other provisions. For example, Liberty National agreed not to raise premiums for 13 months after the settlement was approved. Additionally, the Robertson settlement allowed Liberty National to increase premiums so long as the increases did not result in a loss ratio less than 55%, but the proposed settlement raised the “loss ratio” to 85%. As we understand it, based on the parties' explanations, the 85% loss-ratio provision in simplified terms means that for every dollar brought in as premium, the proposed settlement would require Liberty National to pay out at least 85 cents. See Black’s Law Dictionary 965 (8th ed.2004) (defining “loss ratio” as “[t]he ratio between premiums paid and losses incurred during a given period”).
      The settlement also provided an attorney fee not to exceed $4,000,000 for the lawyers representing the Roberts class.

      .Richard Solomon, an appellant in case no. 1040816, died while these appeals were pending. See Rule 43, Ala. R.App. P.

      . The trial court appointed the same special master who served in Robertson.

      . The Roberts plaintiffs contend that this Court does not have jurisdiction over Ivan Smith’s appeal (no. 1040927). They point out that the trial court’s final order regarding class certification was entered on November 22, 2004, and they contend that Smith did not file a postjudgment motion to alter, amend, or vacate the final order. The Roberts plaintiffs argue that Smith’s filing of his notice of appeal on March 15, 2005, was therefore untimely. We disagree.
      As noted, the Robertson class timely filed a motion under Rule 59(e), Ala. R. Civ. P., which suspended the running of the time for filing a notice of appeal as to all parties. Rule 4(a)(3), Ala. R.App. P.; Wellcraft Marine, a Div. of Genmar Indus., Inc. v. Zarzour, 577 So.2d 414, 417 (Ala.1990) ("The running of the time for taking an appeal is tolled as to all parties, not just the one who filed the post-judgment motion.”). Thus, Smith's notice of appeal was timely filed within 42 days of the trial court’s denial of the Rule 59(e) motion. The Roberts plaintiffs also argue that all four appeals must be dismissed because the notice of appeal in each case named Liberty National and Torchmark as appellees but not the Roberts plaintiffs. The Roberts plaintiffs concede that each notice of appeal in this case met the literal requirements of Rule 3(c), Ala. R.App. P., which states that a notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.”

        However, the Roberts plaintiffs, citing Rule 2(a)(2)(D) and Rule 3(d)(1), Ala. R.App. P., maintain that the objectors' appeals are nonetheless due to be dismissed. Rule 3(d)(1) requires the clerk of the trial court to serve a copy of the notice of appeal on counsel of record for each party and requires the appellant to serve a copy of the notice of appeal on each adverse party. Although Smith claims he in fact served the Roberts plaintiffs with a copy of his notice of appeal, the Roberts plaintiffs allege they were not served in compliance with that rule. The Roberts plaintiffs argue that the alleged failure to be served with a copy of the notices of appeal constitutes, under Rule 2(a)(2)(D), a failure by the appellants to "comply substantially with [the Rules of Appellate Procedure]” that warrants dismissal of the appeals. We disagree.
      Before an appeal may be dismissed under Rule 2(a)(2)(D), the party in default must be notified of the deficiency and given an opportunity to correct it. Rule 2, Ala. R.App. P. In this case, any alleged deficiency in service of the notices of appeal or in the naming of appellees was corrected within two months of the filing of the first notice of appeal and before the briefing schedule was established in these appeals. Moreover, the Roberts plaintiffs filed a brief as an appellee in each appeal. Thus, any alleged failure on the part of the appellants to "comply substantially with [the Rules of Appellate Procedure]” has been corrected, and the Roberts plaintiffs have suffered no prejudice.

      . In noting this distinction, however, we do not suggest that the parties to an action may waive the issue whether the court has subject-matter jurisdiction.

      . Robertson asserts an additional related argument that also makes Filer distinguishable. In Filer, both parties to the 1982 divorce judgment had notice of the later filed action by Alvin from the time he filed it — indeed, Alvin’s action named Betty as a defendant and could not have proceeded without Betty’s being properly served with notice of the action. Filer, 502 So.2d at 699-700.
      However, Robertson argues that because the Roberts plaintiffs filed an independent action in Barbour County rather than proceeding within case no. CV-92-021, no notice was provided to Robertson until the Roberts action in case no. CV-03-137 had reached the settlement stage. If the Roberts plaintiffs had instead attempted to proceed within case no. CV-92-021, Robertson maintains, because he was the named class representative and plaintiff in case no. CV-92-021, he would have been provided with notice of the claims of the Roberts plaintiffs before the Barbour Circuit Court began considering the merits of those claims. See, e.g., Rule 5(a), Ala. R. Civ. P. Notice at the initiation of the Roberts proceedings, Robertson argues, would have allowed Robertson to challenge the Roberts plaintiffs’ ability and right to act on behalf of the class — including, for example, the right to negotiate a settlement with Liberty National. See, e.g., In re Four Seasons Secs. Laws Litig., 525 F.2d 500 (10th Cir.1975).
      Robertson argues that the Roberts plaintiffs in essence "usurped” Robertson’s role as class representative and avoided the effect of the Barbour Circuit Court's determination in case no. CV-92-021, affirmed by this Court on appeal in Robertson, that Robertson was an adequate class representative — a determination Robertson contends the Roberts plaintiffs could not have successfully challenged in view of the law-of-the case doctrine. See Ex parte King, 821 So.2d 205, 208-09 (Ala.2001). See also In re Integra Realty Res., 354 F.3d 1246, 1260-61 (10th Cir.2004); and Nedcl v. Thomas, 47 F.R.D. 551, 555 (M.D.Pa.1969) ("There is no doubt [the doctrine of law of the case applies] to situations where parties to the same case seek to do battle on the same point once more.”). In short, Robertson argues that the Roberts plaintiffs' prosecution of their claims in an action separate from case no. CV-92-021 resulted in the changing of Robertson’s status — without notice to Robertson until after the change in status had occurred — from that of class representative to that of objector. Robertson does not dispute that he received notice of the settlement in case no. CV-03-137; indeed, he says his receipt of notice of the settlement is what prompted him to intervene in case no. CV-03-137. What he contends is that his status should not have been changed without notice to him before the change occurred.
      Robertson’s arguments regarding notice and the effect of the prior determination of his status as class representative raise important issues. However, our resolution of the appeals should permit Robertson — in the event the Roberts plaintiffs attempt to present their claims within case no. CV-92-021 — the opportunity to address those arguments to the Barbour Circuit Court.

      . The appellants also raise a number of other objections to the trial court's certification and approval of the settlement in the Roberts action. However, our conclusion that the trial court lacked jurisdiction to adjudicate the Roberts plaintiffs’ claims in an independent action rather than through case no. CV-92-021 pretermits consideration of the additional objections to the trial court's judgment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Douglas L. CROUCH. (In re Douglas L. Crouch v. State of Alabama).
    1041458.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      Douglas L. Crouch, pro se.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Tracy M. Daniel, asst. atty. gen., for respondent.
   PER CURIAM.

This is an appeal from the summary denial of a Rule 32, Ala. R.Crim. P., petition for postconviction relief. We affirm.

In 1995, Douglas L. Crouch was convicted of first-degree rape and second-degree kidnapping; the victim was his former wife. He was sentenced to a total of 21 years in prison. The convictions were affirmed on direct appeal. Crouch v. State, 683 So.2d 1073 (Ala.Crim.App.1996) (table), cert, denied, 681 So.2d 648 (Ala.1996) (table).

On February 24, 1998, Crouch filed a timely Rule 32 petition for postconviction relief (“the 1998 petition”). Crouch also requested that the circuit court allow him to proceed informa pawperis. It is undisputed that Crouch was not required to pay a filing fee in regard to the 1998 petition; Crouch maintains, however, that the circuit court never actually ruled on his in forma pauperis request. On March 13, 2000, the circuit court entered an order that ostensibly denied the 1998 petition on the merits.

On July 1, 2003, Crouch again filed a Rule 32 petition (“the 2003 petition”) and again requested that the circuit court allow him to proceed in forma pauperis. In addition to his substantive claims, Crouch argued that the circuit court’s denial of the 1998 petition was void because the circuit court lacked subject-matter jurisdiction. As a result, Crouch argued, the 2003 petition was not truly a new Rule 32 petition, but was instead an amendment to the still pending 1998 petition.

On December 2, 2004, the circuit court summarily dismissed the 2003 petition. Crouch appealed, and on May 20, 2005, the Court of Criminal Appeals affirmed the circuit court’s judgment in an unpublished memorandum, concluding that the 2003 petition was a new petition and that it was barred because it was filed outside the two-year limitations period of Rule 32.2(c), Ala. R.Crim. P. Crouch v. State, 926 So.2d 1086 (Ala.Crim.App.2005)(table).

The question presented by Crouch’s petition for certiorari review is whether the circuit court was required to accept Crouch’s 2003 petition as an amendment to the 1998 petition. We assume, for the sake of argument and without deciding, that Crouch is correct in three respects: 1) that the circuit court lacked jurisdiction to deny the 1998 petition because it had not ruled on his in forma pauperis request, see Ex paite Chandler, 910 So.2d 763, 764-65 (Ala.2005); 2) that the 1998 petition is still pending; and 3) that the 2003 petition should be treated as a motion for leave to amend the 1998 petition. Nevertheless, even making such assumptions in Crouch’s favor, we affirm the judgment of the Court of Criminal Appeals because the circuit court was within its discretion in denying Crouch leave to amend the 1998 petition.

An amendment to a Rule 32 petition “may be permitted at any stage of the proceedings prior to entry of judgment,” Rule 32.7(b), Ala. R.Crim. P., and “[l]eave to amend shall be freely granted.” Rule 32.7(d), Ala. R.Crim. P. This does not mean, however, that the circuit court must always allow an amendment:

“The right to amend is limited by the trial court’s discretion to refuse to allow an amendment if the trial court finds that the petitioner has unduly delayed filing the amendment or that an amendment unduly prejudices the State....
“... [T]he concepts of ‘undue delay’ and ‘undue prejudice’ ... apply to the trial court’s management of its docket and to the petitioner’s attention to his or her case.”

Ex parte Jenkins, [Ms. 1031313, April 8, 2005] — So.2d —, — (Ala.2005). Crouch filed the 2003 petition more than five years after he filed the 1998 petition, and more than three years after the circuit court entered an order stating that it was denying the 1998 petition. He offers no reason for the delay.

It is well established that an appellate court may affirm the decision of a trial court for any valid reason, even one not presented to or considered by the trial court. Dickinson v. Land Developers Constr. Co., 882 So.2d 291, 307 (Ala.2003). In this case, Crouch’s unexplained five-year delay in requesting leave to amend the 1998 petition constituted “undue delay.” As a result, even assuming without deciding that the 1998 petition was still pending when Crouch filed the 2003 petition, the circuit court was within its discretion to refuse to allow Crouch to amend the 1998 petition, and its order dismissing the 2003 petition was not error. We therefore affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

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

STUART, J., concurs in the result.


text:
    Charles M. FOGARTY and Jane C. Fogarty v. Gary SOUTHWORTH, Gerald McGill, and Confederate Money, LLC.
    1050207.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      James B. Pittman, Jr., Daphne, for appellants.
    Gary E. Southworth, pro se.
    Lloyd E. Taylor of Taylor & Taylor, L.L.C., Robertsdale, for appellees Gerald A. McGill.
    Julian B. Braekin, Jr., of Brackin, McGriff & Johnson, P.C., Foley, for appel-lee Confederate Money, L.L.C.
   PER CURIAM.

The plaintiffs below, Charles M. Fogarty and his wife, Jane C. Fogarty, appeal from a summary judgment entered by the Baldwin Circuit Court in favor of the defendants, Gary Southworth, Gerald McGill, and Confederate Money, LLC. We affirm in part, reverse in part, and remand.

I. Factual Background and Procedural History

In late 1999 and early 2000, the Fogar-tys invested almost $200,000 in Confederate Money, LLC, in exchange for the Fo-gartys’ receiving a 12.5% interest in the company; Confederate Money was in the process of constructing a hotel in Gulf Shores, and the Fogartys’ contribution was to finance a portion of the construction project. According to the Fogartys, certain members of Confederate Money represented to them that the McPherson Group, a member in Confederate Money and an entity composed of Dr. James D. Bearden III, and his wife, Ann S. Bearden, Southworth, and McGill, would convey the land upon which the hotel was to be built to Confederate Money “free and clear,” and, in exchange, the McPherson Group would receive a 51% interest in Confederate Money, making it a majority member. The Fogartys were told that the land the McPherson Group intended to convey represented at least a $600,000 equity investment in Confederate Money. Relying upon this representation, the Fogartys made their capital contribution in the amount of almost $200,000.

In January 2000, at the urging of the other members of Confederate Money, including Southworth and McGill, the Fogar-tys personally guaranteed a $2,600,000 construction loan for Confederate Money, based on their belief that the entire proceeds of the loan would be spent on the construction of the hotel. The construction of the hotel was completed and the hotel began operations in May 2000. In December of that year, the Fogartys contributed an additional $65,000 to Confederate Money to cover the hotel’s losses, relying on representations that the additional capital contribution would increase the Fo-gartys’ ownership interest in Confederate Money from 12.5% to 20%. In accordance with their belief that their ownership interest in Confederate Money was 20%, the Fogartys paid 20% of Confederate Money’s expenses during 2001.

In November 2001, the Fogartys received a letter from Confederate Money stating that the construction loan that the Fogartys had personally guaranteed was in danger of default, and the Fogartys loaned Confederate Money an additional $100,000. In early 2002, the Fogartys met in Gulf Shores with the accountant for Confederate Money to discuss their concerns about the deterioration of the hotel’s finances. At that time, the Fogartys learned that the land contributed by the McPherson Group on which the hotel had been constructed had not been conveyed to Confederate Money “free and clear” but had been conveyed subject to a mortgage that had been paid off at the closing on January 25, 2000, using a portion of the $2,600,000 construction loan that the Fo-gartys had personally guaranteed. At that meeting the Fogartys also learned of other alleged misrepresentations that members of Confederate Money had made.

In April 2002, the Fogartys hired a law firm to represent them in their dispute with Confederate Money. On January 14, 2004, nearly two years after they retained counsel, the Fogartys filed this action in the Baldwin Circuit Court. In their 14-count complaint against Confederate Money, its other members, and the attorneys who represented Confederate Money, the Fogartys sought a preliminary injunction to prevent corporate waste and a judgment declaring their ownership interest in Confederate Money; they also alleged claims for money owed and, among others, claims of oppression, breach of fiduciary duty, conversion, fraud, conspiracy to defraud, civil theft, and the unauthorized practice of law. In March 2004, Confederate Money, Southworth, and McGill moved for a summary judgment on all claims and submitted briefs to the court. The trial court held two hearings on the motions and allowed all the parties to file post-hearing briefs. The trial court entered a summary judgment in favor of Confederate Money, Southworth, and McGill on all claims against them, on the basis that the Fogar-tys’ fraud count was barred by the two-year statute of limitations. Because the summary judgment did not conclude the action as to the remaining defendants, the trial court then certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

II. Standard of Review

The standard for reviewing a summary judgment is well settled. To grant a motion for a summary judgment, the trial court must first determine that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmov-ant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d), Ala. Code 1975). “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.’ ” 742 So.2d at 184 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

In reviewing a summary judgment, this Court analyzes the facts and the legal issues de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004). “Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Ex parte Alfa Mut Gen. Ins. Co., 742 So.2d at 184 (citing Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)).

III. Analysis

The Fogartys cite three reasons the trial court should not have entered the summary judgment for Confederate Money, Southworth, and McGill on all the Fogartys’ claims against those defendants. First, the Fogartys argue, the summary judgment should not have been entered because discovery requests were outstanding, and, as the affidavit submitted in opposition to the summary-judgment motions established, they were unable to present sufficient facts to oppose the summary-judgment motions and were entitled to a continuance of the hearing to allow discovery to proceed, pursuant to Rule 56(f), Ala. R. Civ. P. Second, the Fogartys argue, the statute of limitations does not bar their fraud count because, they argue, their complaint was filed within two years of when they had actual knowledge of the alleged fraud. Finally, they argue, the summary judgment was improper as to the other 13 counts in their complaint that are separate from the fraud count. We address each issue in turn.

A. Outstanding Discovery Requests

Rule 56(f), Ala. R. Civ. P., states, in pertinent part: “Should it appear from the affidavits of a party opposing the [summary-judgment] motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit ... discovery to be had....” As we noted in Scrushy v. Tucker, 955 So.2d 988, 1007 (Ala.2006), “ ‘[s]uch an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence.’ ” (Citing Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f).) As the rule indicates, whether to deny a motion for summary judgment or to grant a continuance to allow discovery to proceed is discretionary with the trial court.

However, the scope of the trial court’s discretion is narrow, not broad. This Court has consistently held that the pendency of outstanding discovery alone is not sufficient to bar a summary judgment. See Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988); Hope v. Brannan, 557 So.2d 1208, 1212 (Ala.1989). Furthermore, if the party opposing the motion can show that the outstanding discovery is crucial to that party’s ability to oppose a summary-judgment motion, then the trial court should not enter the summary judgment until the outstanding discovery is completed. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 161 (Ala.1996) (noting that a nonmovant at summary-judgment stage has the “burden of proving how information from [documents sought in discovery] is crucial to her case”). Therefore, parties opposing a summary judgment bear a more stringent burden than merely showing that the outstanding discovery “may be” crucial to their case.

A mere “eonclusory” affidavit by the party opposing the summary-judgment motion will not support a claim that a summary judgment was improperly granted in light of pending discovery. Stallworth v. AmSouth Bank, 709 So.2d 458, 469 (Ala.1997). In Stallworth, the “conclusory” affidavit “fail[ed] ... to identify what crucial evidence pertaining to his ... claim discovery might disclose.” Id. In Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir.1983), the United States Court of Appeals for the Eleventh Circuit annunciated a rule regarding the specificity of an affidavit, based on Rule 56(f), Fed.R.Civ.P., which is identical to our Rule 56(f). In Wallace, the Eleventh Circuit stated that the affiant seeking relief under Rule 56(f)

‘may not simply rely on vague assertions that additional discovery will produce the needed, but unspecified, facts,’ but rather he must specifically demonstrate ‘ “how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the mov-ant’s showing of the absence of a genuine issue of [material] fact.” ’ ”

703 F.2d at 527 (quoting SBC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.1980) (quoting in turn Willmar Poultry Co. v. Mortn-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir.1975))). Therefore, to be considered sufficient and not merely “conclusory,” an affidavit in support of a continuance under Rule 56(f) must specifically state what items of outstanding discovery are crucial and why that discovery is essential to aid the nonmoving party in opposing the pending motion for a summary judgment.

The trial court held its first hearing on the motions for a summary judgment on May 14, 2004. After the hearing, the parties were given until December 28, 2004, to conduct further discovery, and the trial court ordered the parties to submit briefs. Attached to the Fogartys’ post-hearing brief was an affidavit from Charles Fogarty that elaborated on facts supplied in an affidavit by Jane Fogarty that was filed with the Fogartys’ pre-hearing brief in opposition to the summary-judgment motions. Both Jane Fogarty’s and Charles Fogarty’s affidavits merely detailed facts surrounding the alleged fraud. Neither affidavit made any mention of the need to complete discovery before the summary-judgment motions could be decided. It was not until October 15, 2004, almost two and one-half months before the court’s December 28, 2004, deadline for completion of discovery, that the Fogartys’ attorney filed an affidavit pursuant to Rule 56(f). On February 15, 2005, the trial court again heard arguments on the summary-judgment motions.

The affidavit the Fogartys filed on October 15, 2004, stated, in pertinent part:

“10. It will be necessary to receive written discovery responses from all Defendants, to solve any discovery issues created by objections or inadequate production, to receive documentation from third parties, as well as to take the depositions of all Defendants and the above mentioned third parties in order for [the Fogartys] to oppose the pending motions for partial summary judgment.
“11. The Defendants would have this Court hear arguments on their various motions for partial summary judgment after concluding their discovery, but before [the Fogartys] have had the benefit of receiving any of Defendants’ discovery responses, or similarly taking the depositions of Defendants. For those reasons, [the Fogartys] cannot present further evidence in opposition to the various motions for partial summary judg-
ment until said discovery is conducted, such that those motions for summary judgment should be denied or alternatively continued until completion of written discovery, and the depositions of Defendants.... ”

This affidavit does not specifically state what items of outstanding discovery are crucial to the Fogartys’ opposition, nor does it state why that discovery was essential to aid the Fogartys in opposing the pending summary-judgment motions. Because it does not meet these threshold requirements, it is “conelusory.” Therefore, the trial court did not exceed its discretion in refusing to order a continuance and in granting the summary-judgment motions.

B. Summary Judgment on the Fraud Count

The Fogartys, as previously noted, sought relief based on various claims stated in multiple counts in their complaint, one of which was devoted to fraud. We first address the summary judgment as to the fraud count.

The Fogartys made their initial capital contribution to Confederate Money at some point in the fall of 1999. The Fogar-tys state that “an inspection of the warranty deed from the McPherson Group to Confederate Money dated January 25, 2000, would have confirmed ... that the property was deeded free and clear as it would not mention a prior mortgage.” Confederate Money, Southworth, and McGill urge this Court to accept that the “predicate act” of fraud alleged by the Fogartys was the alleged misrepresentation that the McPherson Group would convey the land upon which the hotel was to be constructed to Confederate Money “free and clear” in exchange for a 51% ownership interest in Confederate Money. Confederate Money, Southworth, and McGill assert various theories by which they contend that the Fogartys had notice sufficient to start the running of the two-year statutory period of limitations as to this alleged misrepresentation. We need not address the merits of any of these theories, however, including the theory that an examination of the public records in late 1999 would have revealed the existence of a prior mortgage, because the Fogartys face an insurmountable obstacle to reversal of the summary judgment on the fraud count arising from their failure to contest Confederate Money, South-worth, and McGill’s contention in their brief to this Court that constructive notice of an alleged fraud can be furnished by public records.

Confederate Money, Southworth, and McGill contended in the trial court, and do so in this Court, that they were entitled to a summary judgment because the constructive notice furnished by the public records started the running of the statutory limitations period with respect to the alleged misrepresentation that the conveyance of the property by the McPherson Group was “free and clear.”

The Fogartys failed to address this constructive-notice issue at all in their initial brief, responding to it for the first time in their reply brief. Rule 28(a)(10), Ala. R.App. P., provides that an appellant’s brief shall contain “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” (Emphasis added.) It is true that constructive notice from public records that the property could not be conveyed “free and clear” was a basis the movants relied on in support of their motions for a summary judgment. When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue. If the rule were otherwise, an appellant could “sandbag” an appellee by withholding an argument on an issue until the reply brief, thereby depriving the appellee of the opportunity to respond. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157,173 (Ala.2005) (“It is a well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in the reply brief.”) (citing Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592 (Ala.2003), and Sanders v. Smitherman, 776 So.2d 68, 73 (Ala.2000)). We therefore affirm the summary judgment on the fraud count insofar as it is based on the alleged misrepresentations concerning the conveyance of the property as “free and clear,” because the Fogartys have waived the right to assert error with respect to that issue.

We have determined that the statute of limitations bars the “predicate act” of fraud, i.e., the misrepresentation that the property would be conveyed “free and clear”; the Fogartys next ask this Court to reverse the summary judgment insofar as it dismisses their claims relating to misrepresentations occurring after the “predicate act” of fraud. The subsequent misrepresentations include references to a December 19, 2000, “Hotel Progress Memorandum”; a March 15, 2001, “Hotel Progress Memorandum”; and a misrepresentation dealing with the percentage of their interest in Confederate Money dated April 17, 2002. The other fraudulent activities the Fogartys allege that occurred within two years of the filing of their action relate to allegations in the complaint having to do with the suppression of information from them. These instances and activities are merely summarized in the statement of facts in the Fogartys’ principal brief to this Court and are supported only by citations to their complaint.

The Fogartys attempt to bolster their misrepresentation allegations with two affidavits, one from Jane Fogarty and one from Charles Fogarty. Jane Fogarty’s affidavit was attached to the Fogartys’ response to the motion for summary judgment, but it did not specifically enumerate any instances of fraud or misrepresentation. Charles Fogarty’s affidavit, on the other hand, was submitted after the May 14, 2004, hearing, when the trial court invited further briefs, and it dealt exclusively with the misrepresentations concerning the “free and clear” conveyance of the property, not misrepresentations occurring after the “predicate act” of fraud. Confederate Money, Southworth, and McGill moved to strike the affidavit on the grounds both that it exceeded the scope of the trial court’s invitation and that it was not filed at least two days before the hearing as required by Rule 56(c)(2). The trial court never ruled on the motion to strike; we therefore assume that it considered the affidavit. See Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002) (holding that where “there is no indication in the record that the court excluded [an untimely affidavit], we must assume that the trial court considered [it] when it ruled on [the] motion for a summary judgment”) (citing Travis v. Ziter, 681 So.2d 1348, 1351 (Ala.1996)).

Nevertheless, Charles Fogarty’s affidavit deals only with the previously addressed bundle of misrepresentations concerning the McPherson Group’s conveyance of the property as “free and clear” in exchange for a 51% interest in Confederate Money. It does not offer evidence of any misrepresentations allegedly occurring after that conveyance. Consequently, with respect to claims based upon misrepresentations occurring after this “predicate act” of fraud, the Fogartys have offered nothing in opposition to the motions for a summary judgment beyond the bare allegations of their complaint. “Relying upon Rule 56(e), this Court has stated frequently that a nonmovant, in opposing a motion for a summary judgment, cannot merely rely on the allegations in the complaint.” Ex parte Quinlan, 922 So.2d 914, 916 (Ala.2005). Consequently, we cannot consider the effect, if any, of the misrepresentations occurring after what we have described as the “predicate act,” and the trial court’s summary judgment as to the other aspects of the fraud count is therefore due to the affirmed.

C. Summary Judgment on the Remaining Counts

In their brief on appeal, the Fo-gartys ask this Court to “clarif[y] that at most, the Trial Court granted a partial summary judgment on the fraud count only.” The Fogartys point to the different statutes of limitations that govern several of their other claims. Confederate Money, Southworth, and McGill contend that the summary judgment on the fraud count bars all other counts, because Jane Fogarty stated in her deposition that she “wouldn’t be here today” if the land had been conveyed “free and clear.” Confederate Money, Southworth, and McGill argue that, based on this statement, because the “predicate act” of fraud is barred, all other counts in the Fogartys’ complaint are likewise barred. Nowhere in their briefs do Confederate Money, Southworth, or McGill cite any law, statutory or otherwise, or any other authority for the proposition that a summary judgment on one count based on the statute of limitations for that count necessitates a summary judgment on the remaining counts, some subject to longer statutes of limitations.

Furthermore, Confederate Money, Southworth, and McGill did not deal so expansively with the scope of their summary-judgment motions when they were challenged by the Fogartys in the trial court. Specifically, in their brief in response to the motions for a summary judgment, the Fogartys stated that the “[m]ovants request that partial summary judgment be entered on one aspect of one of the fourteen counts ... as to three of the ... Defendants.” (Emphasis added.) Confederate Money, Southworth, and McGill responded that, because “this alleged misrepresentation cannot be the basis for a viable fraud action since the two-year statute of limitations ran out long ago,” the Fogartys’ “theory of multiple independent fraudulent acts/misrepresentations disintegrates into nothing more than an attempted end run around the statute of limitations.” (Emphasis added.) Absent from the response is any contention that if a summary judgment was appropriate as to the fraud count a summary judgment was appropriate as to all counts. In the trial court, Confederate Money, Southworth, and McGill did not refute the Fogartys’ efforts to limit the scope of the summary judgment to the fraud count; they merely argued that the statute of limitations bars all aspects of the fraud count.

The trial court, however, entered a summary judgment in favor of Confederate Money, Southworth, and McGill on all counts, giving the movants more than they actually sought in their motion. Before this Court, Confederate Money, South-worth, and McGill have modified their argument to support that result, claiming that “[bjeeause all of the Fogartys’ claims were grounded in Confederate Money’s alleged acts of fraud,” the trial court properly “dismissed all of the claims against Confederate Money, not just the fraud count.” The Fogartys were entitled to rely on the description of the scope of the summary-judgment motions that Confederate Money, Southworth, and McGill gave in the trial court, i.e., they sought a summary judgment only on the fraud count.

Even if we were to treat the summary-judgment motions as comprehensive, as previously noted Confederate Money, Southworth, and McGill have not provided us with any authority to support the view that successful defense of one count based upon a shorter statute of limitations justifies the dismissal of all counts arising from the same transaction, some of which are governed by longer statutes of limitations. Such a proposition of law, if we were to accept it, would surely constitute an affirmative defense as to which Confederate Money, Southworth, and McGill would bear the burden of proof, though we do not reach the merits of the validity of such a defense here. See Buist v. Time Domain Corp., 926 So.2d 290, 293 (Ala.2005) (“A defendant bears the burden of proving an affirmative defense.”). Before the trial court, Confederate Money, Southworth, and McGill never produced any credible evidence in support of this theory. This Court stated in Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001), regarding the movant’s burden of production of evidence on a motion for a summary judgment: “ ‘The manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial. If the movant has the burden of proof at trial, the movant must support his motion with credible evidenced ” (Quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999).) Clearly, Confederate Money, Southworth, and McGill would have had the burden of proving this affirmative defense at trial, and they thus had it on the motions for a summary judgment.

The only evidence presented in support of the motions for a summary judgment related to the statute of limitations on the Fogartys’ fraud count. As a result, Confederate Money, Southworth, and McGill never satisfied their obligation to make a prima facie showing that they were entitled to a summary judgment on all of the Fogartys’ counts. Ex parte General Motors Corp., 769 So.2d at 909. On the record before this Court, Confederate Money, Southworth, and McGill never successfully shifted the burden to the Fogartys to prove that the statute of limitations for the fraud count did not bar those remaining 13 counts. See Lacy v. Mini Warehouse World, 835 So.2d 154, 157 (Ala.2002) (Lyons, J., concurring specially). Indeed, their failure to do so is entirely consistent with the narrower scope of the summary-judgment motions, as presented to the trial court. Because Confederate Money, Southworth, and McGill failed to meet their burden of production in support of a summary judgment on the remaining 13 counts, the trial court erred in entering a summary judgment in favor of Confederate Money, Southworth, and McGill and against the Fogartys on all counts.

IV. Conclusion

The summary judgment in favor of Confederate Money, Southworth, and McGill on the fraud count of the complaint is affirmed. In all other respects, the summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . For a discussion of the unauthorized-practice-of-law claims, see Fogarty v. Parker, Poe, Adams, & Bernstein L.L.P., [Ms. 1040335, Aug. 18, 2006] - So.2d - (Ala.2006).

      . Although the Fogartys refer only to the representation that the land would be conveyed "free and clear” as the "predicate act” of fraud, we consider all the representations associated with the conveyance of the land as a unitary aspect of this fraud claim; therefore, we include all of them in our reference to Confederate Money's "predicate act” of fraud.

      . "Sandbag” is defined as "to conceal or misrepresent one’s true position, potential, or intent esp. in order to take advantage of.” Merriam-Webster’s Collegiate Dictionary 1100 (llthed.2003).


author: PARKER, Justice.

text:
    Ex parte SUMTER COUNTY et al. (In re Robert M. Seale, administrator ad litem for the estate of Jeffrey D. Fenner, deceased v. Johnny Hatter et al.).
    1041927.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      Frank E. Bankston, Jr., of Webb & Eley, P.C., Montgomery, for petitioners.
    M. Bradley Almond of Almond & Cheshire, LLC, Tuscaloosa, for respondent.
   PARKER, Justice.

Sumter County; Johnny Hatter, the sheriff of Sumter County; and Deputy Sheriffs Terry Williams, David Rowry, and Robert Cottrell, defendants in an action pending in the Sumter Circuit Court, petition this Court for a writ of mandamus directing the Sumter Circuit Court to vacate its order issued on August 11, 2005, denying these defendants’ motion to dismiss. We grant the petition.

I. Background

On September 3, 2004, Robert M. Seale, the administrator ad litem for the estate of Jeffrey D. Fenner, filed a wrongful-death action in the Sumter Circuit Court, pursuant to § 6-5 — 410, Ala.Code 1975, based on the death of Jeffrey D. Fenner while he was confined in the Sumter County jail. The complaint alleges that Fenner had been diagnosed with schizophrenia that manifested itself as paranoia and delusional behavior. According to the administrator ad litem, Fenner was traveling by bus from Dallas, Texas, through Alabama, on March 15, 2003, when he allegedly suffered an episode of paranoia and delusions and had to leave the bus near Cuba, Alabama, a town in Sumter County. Fenner made his way to the McBride Truck Stop in Cuba. His behavior was such that employees summoned Cuba Police Chief Chris Vaughan, who arrested Fenner for assault and disorderly conduct. Fenner was transported to the Sumter County jail and placed in a cell. Sometime thereafter, Fenner committed suicide by hanging himself. Greyhound Lines, Inc., Chief Vaughan, Sumter County, Sheriff Hatter, Deputy Sheriff Williams, Deputy Sheriff Rowry, and Deputy Sheriff Cottrell were named as defendants in the wrongful-death action. Sheriff Hatter and Deputy Sheriffs Williams, Rowry, and Cottrell were also sued in their individual capacities.

The complaint states that Fenner committed suicide while he was incarcerated in the Sumter County jail and alleges that Sheriff Hatter and Deputy Sheriffs Williams, Rowry, and Cottrell “knew or should have known that Fenner was mentally and/or emotionally unstable” and that they

“negligently, willfully, maliciously, fraudulently, in bad faith and beyond their authority, failed to properly monitor Fenner, failed to check on Fenner at reasonable intervals, failed to follow standard procedures, failed to follow suicide cheek procedures, and failed to discover Fenner in a timely fashion.”

The complaint further alleges that Sheriff Hatter failed to properly train or supervise his employees and that the conduct of all the defendants “combined and concurred to proximately cause the death of Fenner.”

On October 8, 2004, Sumter County, Sheriff Hatter, and Deputy Sheriffs Williams, Rowry, and Cottrell filed a motion to dismiss. Sumter County relied on Alabama statutes and caselaw that provide that Alabama counties have no authority in the hiring, training, or supervising of jail personnel or the supervising of inmates committed to that jail. Sheriff Hatter and Deputy Sheriffs Williams, Rowry, and Cottrell relied on Art. I, § 14, Ala. Const. 1901, and Alabama caselaw that recognizes that sheriffs and deputy sheriffs are entitled to sovereign immunity unless the action is one to enjoin their conduct.

On August 11, 2005, the Sumter Circuit Court denied the motion to dismiss. On September 22, 2005, Sumter County, Sheriff Hatter, and Deputy Sheriffs Williams, Rowry, and Cottrell petitioned this Court for a writ of mandamus to compel the Sumter Circuit Court to grant the motion to dismiss.

II. Standard of Review

“A writ of mandamus is a “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”

Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

“A petition for a writ of mandamus ‘is an appropriate means for seeking review of an order denying a claim of immunity.’ Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).2 ...
“In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review-Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear that the plaintiff cannot prove any set of circumstances upon which relief can be granted.... ‘ “In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [she] may possibly prevail.” ’ ... We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.
“2 The denial of a motion to dismiss or a motion for a summary judgment generally is not renewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002)....”

Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003).

III. Discussion

A. Claims Against Sumter County

An Alabama county, unlike the State of Alabama, is not generally immune from suit.

“Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state, see, e.g., Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 993 (Ala.1980), but generally does not extend to counties or county agencies, see, e.g., Wassman v. Mobile County Communications Dist., 665 So.2d 941, 943 (Ala.1995), or to municipalities or municipal agencies, see Jackson v. City of Florence, 294 Ala. 592, 600, 320 So.2d 68, 75 (1975).”

Ex parte Tuscaloosa County, 796 So.2d 1100,1103 (Ala.2000).

In Alabama, counties possess only those powers expressly delegated to them by the legislature. Tuscaloosa County v. Alabama Great Southern R.R., 227 Ala. 428, 150 So. 328 (1933). Therefore, the Alabama Code determines the role of counties in operating county jails. Section 11-14-10, Ala.Code 1975, provides that “[t]he county commission shall erect ... jails” and that “[•ejach county shall be required to maintain a jail within their county.” This Court held in Keeton v. Fayette County, 558 So.2d 884, 886 (Ala.1989), that “by using the phrase ‘maintain a jail’ in § 11-14-10, the Legislature intended to require the county commission to keep a jail and all equipment therein in a state of repair and to preserve it from failure or decline.”

The administrator ad litem’s complaint does not allege that the claims against Sumter County are based on a failure to fund or to maintain the jail. Instead, the administrator ad litem claims only that Sumter County is responsible for the alleged negligent operation of the jail.

Under Alabama law, a county is not responsible for the daily administration or operation of a county jail or for overseeing inmates. See Turquitt v. Jefferson County, 137 F.3d 1285, 1289 (11th Cir.1998) (“We recognize that Alabama counties possess some duties with respect to county jails. However, none of these duties relates to the daily operation of the jails or to the supervision of inmates. The duties of the counties with respect to the jails ‘are limited to funding the operation of the jail and to providing facilities to house the jail.’ Stark v. Madison County, 678 So.2d 787, 787 (Ala.Civ.App.1996).”). Thus, Alabama counties are not charged with the duty of operating jails; instead, it is the county sheriffs who are vested with that responsibility. Section 14-6-1, Ala.Code 1975, provides: “The sheriff has the legal custody and charge of the jail in his county and all prisoners committed thereto.... ” Alabama law provides that a county commission does not have the authority, or the responsibility, to promulgate policies and work rules for employees of the sheriffs office, nor does a county commission have authority over law-enforcement policies or the training, supervision, hiring, or firing of the sheriffs employees. See Crocker v. Shelby County, 604 So.2d 350 (Ala.1992). Consequently, Sumter County cannot be held liable for any action resulting from the hiring, training, or supervising of jail personnel.

Furthermore, counties cannot be held vicariously liable for the actions or omissions of the sheriff or his deputies in operating a county jail. See King v. Colbert County, 620 So.2d 623, 625 (Ala.1993), and Parker v. Amerson, 519 So.2d 442 (Ala.1987). This Court, construing Art. V, § 112, Ala. Const.1901, and its history, has concluded that a sheriff is an executive officer of the State. Parker, 519 So.2d at 443. This Court has also held that because a sheriff is an executive officer, “a sheriff is not an employee of a county for the purposes of imposing liability on the county....” 519 So.2d at 442; see also King, 620 So.2d at 625-26. Consequently, even if Sheriff Hatter may be held liable for his conduct as sheriff, Sumter County itself cannot be held vicariously liable for his actions or inaction.

The administrator ad litem recognized as much in his motion for a partial summary judgment, stating:

“[T]he law is clear in Alabama that sheriffs are constitutionally established executive officers of the State of Alabama. Article I, § 14, Alabama Constitution of 1901; King v. Colbert County, 620 So.2d 623, 625 (Ala.1993); Vinson v. Clarke County, 10 F.Supp.2d 1282, 1295 (S.D.Ala.1998). ‘Sheriffs are not county employees, Parker v. Amerson, 519 So.2d 442 (Ala.1987), particularly for purposes of imposing respondeat superior liability upon the county.’ King v. Colbert County, at 625. Moreover, deputies and jailers are likewise not county employees. Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994); Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1429 (11th Cir.1997). Deputies and jailers are alter egos of the Sheriff and are state employees. Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536, 537 (1944).
“It is undisputed in this case that the Defendants Johnny Hatter (sheriff), Terry Williams (deputy), David Rowry (deputy) and Robert Cottrell (deputy) are not employees of Sumter County, Alabama, but rather, of the State of Alabama.”

Therefore, any liability of a county resulting from an incident at a county jail must be based on a failure of county officials to provide an adequate facility. Because the administrator ad litem does not allege that Sumter County breached a duty to furnish and maintain a jail facility, he fails to state a claim upon which relief can be granted. Consequently, the trial court erred in denying the defendants’ motion to dismiss the claims against Sumter County.

B. Immunity of Sheriff Hatter and Deputy Sheriffs Williams, Rowry, and Cottrell

As stated above, sheriffs and deputy sheriffs are executive officers of this State, pursuant to the Ala. Const.1901, Art. Y, § 112. Parker, 519 So.2d at 443. Moreover, claims against sheriffs and deputy sheriffs are “barred by the absolute immunity of Article I, § 14, of the Alabama Constitution of 1901,” Coleman v. City of Dothan, 598 So.2d 873, 875 (Ala.1992) (quoting White v. Birchfield, 582 So.2d 1085, 1088 (Ala.1991)), when the sheriffs or the deputies were “acting within the line and scope of their employment.” Ex parte Purvis, 689 So.2d 794, 795 (Ala.1996).

This State immunity afforded sheriffs and deputies is not affected by this Court’s decision on State-agent immunity in Ex parte Cranman, 792 So.2d 392 (Ala.2000): “We do not deal here with the absolute immunity of witnesses, judges, prosecutors and legislators, nor do we overrule Ex parte Purvis, 689 So.2d 794 (Ala.1996).” 792 So.2d at 396 n. 2; see also Ex parte Haralson, 853 So.2d at 930 n. 1 (“In Cranman, although we restated the rule governing State-agent immunity, we did not address the State immunity afforded to sheriffs and deputy sheriffs for actions taken while working in the line and scope of their employment, and we did not overrule Ex parte Purvis, 689 So.2d 794 (Ala.1996).”).

All of the events involving the sheriff and the deputy sheriffs were alleged to have occurred at the county jail. The administrator ad litem’s complaint does not allege any facts that would tend to show that the sheriff or deputy sheriffs were not working within the line and scope of their employment when the tragic events underlying this wrongful-death action occurred, nor did the administrator ad litem allege any such facts in his response to the motion to dismiss. The respondent’s brief does not bring any such facts to the attention of this Court.

Accordingly, based on the record before this Court, we hold that the administrator ad litem’s claims against the sheriff and the deputy sheriffs are “barred by the absolute immunity of Article 1, § 14, of the Alabama Constitution of 1901,” Coleman v. City of Dothan, 598 So.2d at 875, because the sheriff and deputy sheriffs were “acting within the line and scope of their employment,” Ex parte Purvis, 689 So.2d at 795.

W. Conclusion

Based on the foregoing, we grant the petition for a writ of mandamus and direct the trial court to vacate its order of August 11, 2005, denying the motion to dismiss filed by Sumter County, Sheriff Hatter, and Deputy Sheriffs Williams, Rowry, and Cottrell and to enter an order dismissing them as defendants in this case.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, and SMITH, JJ., concur.

NABERS, C.J., concurs in the result.

      . The administrator ad litem filed a motion for a partial summary judgment, seeking a declaration that the $100,000 limit on governmental liability set out in § 11-93-2, Ala.Code 1975, is not applicable to Sheriff Hatter and Deputy Sheriffs Williams, Rowry, and Cott-rell.


author: CRAWLEY, Presiding Judge.

text:
    AT&T CORPORATION v. G. Thomas SURTEES, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue.
    2040908.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.

      Joseph B. Mays, Jr., and Christopher R. Grissom of Bradley Arant Rose & White, LLP, Birmingham; and Russell M. Cunningham IV of Cunningham Firm, LLC, Birmingham, for appellant.
    Troy King, atty. gen., and Jeff Patterson and Cleophus Gaines, Jr., asst, attys. gen. and asst, counsel, Alabama Department of Revenue, for appellees.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

The opinion of this court issued June 23, 2006, is withdrawn, and the following is substituted therefor.

This appeal arises from the denial of a tax-refund petition filed by AT&T Corporation (“AT&T”).

During the calendar years 2000, 2001, and 2002, AT&T was a New York corporation whose principal place of business was located in Bedminster, New Jersey; AT&T did business in the State of Alabama during this period. Alabama levied on AT&T both a business privilege tax (“BPT”) during this period and a corporate shares tax (“CST”) for the calendar years 2000 and 2001. See generally §§ 40-14A-21 to -29 (BPT) and §§ 40-14A-31 to -43 (CST). The BPT was based on the net worth of the corporation, and the CST was based on a “taxable shares base” of the corporation. However, both tax schemes allowed a taxpaying corporation to deduct from its net worth or taxable shares base the book value of an investment in the equity of any other corporation or entity doing business in the state of Alabama. Consequently, AT&T was required to file returns for and pay a BPT pursuant to § 40-14A-22, Ala.Code 1975, for the years 2000, 2001, and 2002 and file returns for and pay a CST pursuant to § 40-14A-31, Ala.Code 1975, for the years 2000 and 2001.

AT&T deducted only its investments in entities doing business in Alabama from its net worth in the 2000, 2001, and 2002 calendar years, and it paid the required BPT under the statute. However, AT&T later amended its returns to reflect a deduction from its net worth for all of its investments in other entities, including those entities not doing business in Alabama, and it requested refunds of what AT&T alleged were BPT overpayments for the years 2000, 2001, and 2002; AT&T’s refund requests were denied by the Alabama Department of Revenue.

AT&T initially deducted all of its equity investments, including those in entities not doing business in Alabama, from its taxable shares base used to determine its CST during the years 2000 and 2001. After the Department of Revenue audited AT&T’s CST returns, it entered preliminary assessments stating that AT&T owed additional CST based primarily on the Department of Revenue’s disallowance of AT&T’s deductions of its equity investments in entities not doing business in Alabama.

AT&T protested the preliminary assessments as to the CST and the denial of its refund requests as to the BPT, and it petitioned the Department of Revenue for a review, stating that the deduction schemes were facially discriminatory and unconstitutional. The Department of Revenue issued a final assessment, which did not address the constitutionality of the BPT and the CST deduction schemes, and it disallowed AT&T’s deductions of its equity investments in entities not doing business in Alabama and required AT&T to pay additional BPT and CST after reviewing AT&T’s tax returns and making adjustments.

AT&T filed a complaint in the Jefferson Circuit Court, appealing the final assessment, seeking a judgment declaring that the BPT and CST deduction schemes violated the Commerce Clause of the United States Constitution, and requesting a refund of taxes paid, but the circuit court dismissed the complaint without prejudice, based primarily on issues surrounding a supersedeas bond. AT&T then paid the additional amounts it was assessed and filed a petition for a refund on the basis that the BPT and CST violated the Commerce Clause of the United States Constitution by allowing a deduction from a corporation’s net worth or taxable shares base for investments in the equity of corporations and entities only if they are doing business in Alabama. The Department of Revenue denied those refund requests by letter.

AT&T timely appealed the decision denying its refund requests to the Jefferson Circuit Court, again asserting that §§ 40-14A-23(g)(l) and 40-14A-33(b)(2), Ala. Code 1975, facially discriminated against taxpaying corporations that invest in entities not doing business in Alabama in violation of the Commerce Clause of the United States Constitution and requesting a refund of taxes paid. AT&T named as appel-lees G. Thomas Surtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Department of Revenue (hereinafter referred to collectively as “the Department”).

AT&T filed a motion for a partial summary judgment, which was denied. The trial court held a bench trial in which the parties stipulated to most of the facts. AT&T submitted, and the trial court admitted, into evidence a trial notebook containing, in part: motions, briefs, stipulated facts, supporting precedent, and pleadings. The Department produced testimonial evidence indicating that the purpose of the deduction schemes of the BPT and the CST were to prevent the double taxation of investments in entities doing business in Alabama.

The trial court entered a final judgment finding that §§ 40-14A-23(g)(l) and 40-14A-33(b)(2), Ala.Code 1975, “appeared” to be facially discriminatory but did not violate the Commerce Clause of the United States Constitution, that AT&T had failed to carry its burden of proof, that in-state economic interests and out-of-state economic interests are treated the same under the BPT and CST deduction schemes, and that the deduction schemes were justified as a means of avoiding double taxation.

AT&T filed a timely appeal to this court, contending that the BPT and CST deduction schemes violated the Commerce Clause of the United States Constitution. More specifically, AT&T asserts that the deduction schemes facially discriminated against interstate commerce, that the Department had the burden to offer a justification for the discriminatory BPT and CST deduction schemes, and that the Department failed to meet its burden to offer a valid justification for the deduction schemes.

“The Commerce Clause of the United States Constitution states that ‘[t]he Congress shall have power ... [t]o regulate commerce ... among the several states.... ’ U.S. Const., Art. I, § 8, cl. 3.” Ex parte Hoover, Inc., [Ms. 1040969, April 28, 2006] — -So.2d—,—(Ala.2006). The Commerce Clause has also been interpreted as a limitation on state regulatory powers, rather than solely as an affirmative grant of congressional authority. See Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179-80, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995). The United States Supreme Court has referred to this limitation on state regulatory powers as the “dormant” or “negative” Commerce Clause. “In its negative aspect, the Commerce Clause ‘prohibits economic protectionism — that is, “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” ’ ” Fulton Corp. v. Faulkner, 516 U.S. 325, 330, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996), quoting Associated Ind. of Missouri v. Lohman, 511 U.S. 641, 647, 114 S.Ct. 1815, 128 L.Ed.2d 639 (1994), in turn quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273-74, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988). “Such burdensome taxes imposed on interstate commerce alone are generally forbidden: ‘[A] State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.’ ” Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), quoting Armco, Inc. v. Hardesty, 467 U.S. 638, 642, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984).

As stated above, the BPT is based on the taxpaying corporation’s net worth, and § 40-14A-23(g)(l), Ala.Code 1975, allows a corporation to deduct from its net worth “[t] he book value of the investment by the taxpayer in the equity of any other taxpayer ... that is doing business in Alabama.” Similarly, the CST is based on a taxable shares base, and § 40-14A-33(b)(2), Ala. Code 1975, allows a taxpaying corporation to deduct “[t]he book value of the investment by the taxpayer in the equity of any other corporations doing business in Alabama.” Both Code sections allow a taxpaying corporation to deduct an investment only if the investment is in the equity of entities doing business in Alabama.

The United States Supreme Court has stated that “[n]o State, consistent with the Commerce Clause, may ‘impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business.’ ” Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 329, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). “ ‘[Discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Sys., Inc. v. Department of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). In light of the foregoing authority, to determine if a statute is discriminatory on its face, the text of the statute must treat in-state economic interests differently from out-of-state economic interests in such a way as to benefit the in-state economic interests and burden the out-of-state economic interests.

For example, in Chemical Waste Management, Inc. v. Hunt, 504 U.S. at 340 — 41, 112 S.Ct. 2009, the United States Supreme Court found that an Alabama statute imposing a surcharge on the disposal of hazardous waste from other states was facially discriminatory because it imposed a higher fee on the disposal of out-of-state hazardous waste than on the disposal of instate hazardous waste. Furthermore, in Fulton Corp. v. Faulkner, 516 U.S. at 333, 116 S.Ct. 848, which is factually similar to the case at hand, the United States Supreme Court found that a statute imposing an “intangibles tax” was facially discriminatory because the amount of the tax was based on the value of corporate stock owned by taxpayer, but it allowed the taxpayer to take a deduction based on the amount of business a company in which the taxpayer had invested did in North Carolina. The United States Supreme Court noted that the petitioner, the Fulton Corporation, was a North Carolina corporation owning stock in six other corporations, but five of those corporations did not do any business in North Carolina. The Fulton Corporation’s stock in the five companies that were not doing business in North Carolina, therefore, was subject to an intangibles tax for 100% of the fair market value of that stock; however, the Fulton Corporation was allowed to deduct a portion of the value of the stock in Food Lion, Inc., which did business in North Carolina.

Although the Department contends that §§ 40-14A-23(g)(l) and 40-14A-33(b)(2), Ala.Code 1975, are not facially discriminatory, the trial court acknowledged in its final judgment that those statutory provisions “appeared” to be facially discriminatory because they exclude from a taxpaying corporation’s net worth or taxable shares base amounts invested in other entities doing business in Alabama yet do not provide for such an exclusion if those other entities in which the taxpaying corporation has invested do not do business in Alabama. Like the intangibles tax scheme in Fulton Corp., Alabama’s statutory scheme allows a deduction from the CST and the BPT based on where the entity in which the taxpaying corporation invested does business, i.e., in state or out of state. This differential treatment encourages, to an extent, domestic corporations subject to the BPT and the CST to invest in entities that do business in Alabama, at the expense of entities that do not do business in Alabama. On their face, the statutes at issue impose a heavier tax burden if the entity, in which the taxpaying corporation has invested, does not do business in Alabama. Therefore, §§ 40-14A-23(g)(l) and 40-14A-33(b)(2), Ala.Code 1975, are discriminatory on their face.

In Fulton Corp., 516 U.S. at 331, 116 S.Ct. 848, the United States Supreme Court stated that “[s]tate laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ Oregon Waste [Systems, 511 U.S. 93,] 99 [ (1994) ]; see also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).” A statute imposing a tax that facially discriminates against interstate commerce is unconstitutional unless the state imposing the tax can offer a sufficient justification. South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 169, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999). Thus, the burden falls on the state to justify a statute that facially discriminates against interstate commerce. See Chemical Waste Mgmt., 504 U.S. at 342, 112 S.Ct. 2009, and Hoover, Inc. v. State Dep’t of Revenue, 833 So.2d 32, 36 (Ala.2002).

In its final judgment, the trial court stated:

“The court must decide whether AT&T has carried its heavy burden of overcoming the presumption that these revenue statutes are constitutional. The party challenging the constitutionality of a statute bears the burden of overcoming the presumption of constitutionality in favor of the statute. Ex Parte State of Alabama, 826 So.2d 178, 185 (Ala.Civ. App.2002). Here AT&T has the burden of proving that the two challenged revenue statutes are discriminatory; that is, that they benefit in-state interest and burden out-of-state interests. Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994).”

However, the Alabama Supreme Court has recently described the applicable burden of proof in a case such as this one, stating:

“The United States Supreme Court has stated that ‘facial discrimination [on interstate commerce] invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.’ Hughes v. Oklahoma, 441 U.S. [322,] 337 [ (1979) ](emphasis added). The Court has also declared that ‘[t]his is an extremely difficult burden, “so heavy that ‘facial discrimination by itself may be a fatal defect.’ ” ’ Camps Newfound/Owa-tonna[ Inc. v. Town of Harrison], 520 U.S. [564,] 582 [ (1997) ]; see Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342 (1992) (‘Once a state tax is found to discriminate against out-of-state commerce, it is typically struck down without further inquiry.’).”

Ex parte Hoover, Inc., — So.2d at-.

Since the BPT and the CST deduction schemes were found to facially discriminate against interstate commerce, those provisions were considered “virtually per se invalid,” and the Department had the burden of demonstrating their validity. We find that the trial court erred in placing the burden on AT&T to overcome the presumption that those revenue statutes were constitutional.

Based on the foregoing, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

APPLICATION GRANTED; OPINION OF JUNE 23, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

THOMPSON and BRYAN, JJ., concur.

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

MURDOCK, J., dissents, without writing.

      . The CST was repealed for all tax years beginning on or after January 1, 2002, and, therefore, AT&T was not required to pay this tax in 2002. See Act No. 2000-705, Ala. Acts 2000, and the Code Commissioner’s Notes to § 40-14A-31.

      . Section 40-14A-22, Ala.Code 1975, levies a privilege tax on corporations and other entities that are doing business in Alabama based on their net worth. Section 40-14A-23, Ala. Code 1975, defines net worth, and subsection (g)(1) of § 40-14A-23 allows a corporation or other entity to subtract the book value of an investment in the equity of any other taxpayer doing business in Alabama from the its net worth.
      Section 40-14A-31, Ala.Code 1975, levied a CST on all corporations qualifying or registering to do business or doing business in Alabama in an amount determined by the taxable shares base of the corporation. Section 40-14A-33(b)(2), Ala.Code 1975, allowed corporations paying the CST to deduct from their taxable shares base "[t]he book value of the investment by the taxpayer in the equity of other corporations doing business in Alabama.”