text:
    James A. HUNTER and Sylvia Hunter v. WILSHIRE CREDIT CORPORATION et al.
    1040434.
    Supreme Court of Alabama.
    Oct. 21, 2005.
    John W. Parker, Mobile, for appellants.

      John T. Bender of McFadden, Lyon & Rouse, L.L.C., Mobile, for appellee Wil-shire Credit Corporation.
    T. Kelly May and H. Cannon Lawley of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee Re/Max Advantage, Inc.
    Mark A. Newell and Kevin L. Boucher of Masterson & Newell, L.L.C., Mobile, for appellee ReMax Realty Professionals, Inc.
   SEE, Justice.

The Mobile Circuit Court entered summary judgments in favor of ReMax Advantage, Inc., ReMax Realty Professionals, Inc., and Wilshire Credit Corporation, the defendants in an action filed by James Hunter and Sylvia Hunter. The Hunters appeal from the judgments. We affirm.

Facts and Procedural History

James Hunter and Sylvia.Hunter wanted to purchase a house. The Hunters signed a buyer agency agreement with David Rice, an agent of ReMax Realty. On October 7, 2002, the Hunters entered an agreement (“the purchase agreement”) to purchase from Wilshire a house located at 5425 Washington Boulevard in Theodore. Wilshire had listed the house for sale with ReMax Advantage. The purchase agreement indicated, among other things, that the purchase price was $118,900, that the Hunters would pay a deposit of $500, and that the Hunters’ offer would expire on October 9, 2002.

On October 11, 2002, two days after the Hunters’ purchase offer had expired, Wil-shire presented the Hunters an “Addendum to Purchase Agreement.” The addendum referred to the house and the purchase agreement. It provided, in part:

“This addendum is to be part of and incorporated in the above Purchase Agreement. Price to be $119,500. Earnest money deposit to be increased to $6000.00. Buyer to furnish pre-qual [sic] letter, in 5 days, with full loan approval by 10/31/02. Seller will credit buyer $400 for purchase of home warranty.”

James Hunter signed the addendum. Neither the purchase agreement nor the addendum had been signed by Wilshire at that time.

On November 4, 2002, Rice provided James Hunter with a form from Wilshire entitled “Real Estate Purchase Contract Counter Offer [sic] & Addendum.” Wil-shire had not signed the form. According to the Hunters, Rice advised James Hunter that the counteroffer was necessary “in order to set the closing up.” James Hunter signed the counteroffer. The counteroffer stated that it “is to be made part of, and incorporated into Contract dated: 10/31/02, between Wilshire ... and the [Hunters].” The counteroffer provided that if Wilshire defaulted under the terms of the “Contract or this Addendum, [the Hunters] shall be entitled to the return of the Earnest Money Deposit as [their] sole and exclusive remedy.” In addition, the counteroffer included the following clauses:

“Closing Date/Time of Essence: Closing to occur on or before: 11/20/02 .... Seller shall have the right, in Seller’s sole discretion, to extend the closing date or to void the Contract if; [sic] Seller determines that it is unable to convey good and insurable title to the Property by a reputable title insurance company at the regular rates.
“Acceptance: This counter offer [sic] is made subject to Sellers [sic] Senior Management approval and shall not become a binding Contract until signed by Seller. Seller reserves the right to continue to offer the herein described property for sale and accept any other offer acceptable to Seller prior to full Senior Management approval.”

On November 13, 2002, at 3:00 p.m., Wilshire acknowledged receipt of the purchase agreement. At 3:05 p.m., Wilshire signed the addendum and, at 3:30 p.m., Wilshire signed the counteroffer.

Closing was originally scheduled for November 18, 2002. The parties agreed that the Hunters would not take possession of the house until closing, but the Hunters made improvements to the property before the scheduled closing date. The closing did not occur on the scheduled date because a survey to determine the property lines had not been completed. The Hunters later learned that Wilshire was not going to close on the property because there were numerous judgments and liens against the property and, furthermore, because the survey indicated that the house encroached on an adjoining property line.

In accordance with the terms of the counteroffer, Wilshire attempted to return the $6,000 earnest-money deposit to the Hunters. The Hunters refused to accept the money. The Hunters sued Wilshire, seeking specific performance and consequential damages. The Hunters also sued ReMax Advantage and ReMax Realty seeking compensatory damages and punitive damages. ReMax Advantage, ReMax Realty, and Wilshire all moved for summary judgments. The trial court entered summary judgments in their favor. The Hunters appeal.

Standard of Review

“A party is entitled to a summary judgment when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1246 (Ala.2004) (quoting Rule 56(c)(3), Ala. R. Civ. P.). “ ‘[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.’ ” Moss v. Williams, 822 So.2d 392, 394 (Ala.2001) (quoting Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)).

Analysis

I. Wilshire

In entering a summary judgment in favor of Wilshire, the trial court determined that the counteroffer was legally enforceable and, therefore, that the Hunters’ sole remedy was the return of the earnest-money deposit. The Hunters argue, however, that the counteroffer is “not operable as a matter of law.” They argue that the purchase agreement and the addendum to that agreement constitute the only enforceable contract between the Hunters and Wilshire, and that that contract defines the rights of the parties. The Hunters assert that Wilshire breached the terms of the purchase agreement and the addendum, and that, therefore, they are entitled to specific performance and the reimbursement of the expenses they incurred as a result of Wilshire’s breach.

We first consider whether the counteroffer is an enforceable contract. “1 “The requisite elements of [a valid contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.” ’ ” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1118 (Ala.2003) (quoting Ex parte Grant, 711 So.2d 464, 465 (Ala.1997), quoting in turn Strength v. Alabama Dep’t of Finance, 622 So.2d 1283, 1289 (Ala.1993)). Here, on October 7, 2002, the Hunters offered Wilshire $118,900 to purchase a house. The Hunters’ offer expired on October 9, 2002. On October 11, 2002, Wilshire presented the unsigned addendum to James Hunter, and he signed it. On November 4, 2002, James Hunter received and signed the counteroffer, which, most notably, limited the Hunters’ remedies. On November 13, 2002, Wilshire first acknowledged receipt of the purchase agreement (which had by that time expired), signed the addendum, and signed the counteroffer, in that order.

On November 4, 2002, by signing the counteroffer, the Hunters offered to purchase the house pursuant to the terms of the counteroffer for $119,500. The terms of the counteroffer were inconsistent with the terms of the purchase agreement and the addendum. Specifically, the counteroffer states that if Wilshire is unable to convey “good and insurable” title to the property, Wilshire can either extend the closing date or void the contract. The purchase agreement provides that “A FURTHER PERIOD OF THIRTY (30) DAYS shall be allowed for closing if: (A) the closing is delayed by reason of title defects which can be readily corrected.... ” (Capitalization in original.) Although the purchase agreement states that “[i]f ... the title is not marketable ... [the earnest-money] deposit [is] to be refunded,” that statement does not purport to limit the Hunters’ remedy. However, the counteroffer limits the Hunters’ remedy, in the event of a default by Wilshire, to the return of the earnest-money deposit. In this case, Wilshire was unable to convey marketable title because of numerous judgments and liens against the property and because the house encroached on an adjoining property line. In accordance with the terms of the counteroffer, Wil-shire attempted to return the earnest money to the Hunters. The Hunters refused the earnest money and sued for specific performance and damages.

Wilshire originated, but did not sign, the counteroffer. The counteroffer specified the manner in which it was to be accepted, stating that it “shall not become a binding Contract until signed by [Wilshire].” See Paterson & Edey Lumber Co. v. Carolina-Portland, 215 Ala. 621, 626, 112 So. 245, 249 (1927); Hardwood Package Co. v. Courtney, 253 F. 929, 931 (4th Cir.1918) (“an unsigned contract cannot be enforced by either of the parties, however completely it may express their mutual agreement, if it was also agreed that the contract should not be binding until signed by both of them”). See also 1 Arthur L. Corbin, Corbin on Contracts § 3.34 at 487 (Joseph M. Perillo ed., 1993) (“When one party' solicits and receives an ... expression of agreement from another, clearly specifying that there is to be no contract until ... assent by some officer or representative of the solicitor, the solicitation is not itself an offer. It is a request for an offer.”).

On November 13, 2002, Wilshire accepted the Hunters’ offer to buy the house when it signed the counteroffer. The parties’ signatures evidence a mutual assent to the terms of the counteroffer. Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105 (Ala.2000) (“Assent must be manifested by something. Ordinarily, it is manifested by a signature.”). Accordingly, the counteroffer became a legally enforceable agreement on November 13, 2002, when Wilshire signed the form.

The Hunters’ argument that the purchase agreement and the addendum contained the parties’ only legally enforceable agreement and, accordingly, that the counteroffer is not legally binding, is without merit. Even if we were to conclude, as the Hunters argue, that the purchase agreement and the addendum were legally binding, we would nonetheless conclude that the counteroffer governs the parties’ rights. “When parties execute successive agreements and the ‘two agreements cover the same subject matter and include inconsistent terms, the later agreement supersedes the earlier agreement.’ ” Cavalier Mfg., Inc. v. Clarke, 862 So.2d 634, 641 (Ala.2003) (quoting CMI Int’l, Inc. v. Internet Int’l Corp., 251 Mich.App. 125, 130, 649 N.W.2d 808, 812 (2002)). The subject matter of the purchase agreement and the addendum is the house located at 5425 Washington Boulevard in Theodore. The subject matter of the counteroffer is the same house. The counteroffer limits the Hunters’ remedy in the event of Wilshire’s default to the return of their earnest money; the purchase agreement and the addendum do not. Accordingly, the trial court did not err in entering a summary judgment in favor of Wilshire and concluding that, in accordance with the terms of the counteroffer, the Hunters’ sole remedy is the return of their earnest money.

II. ReMax Advantage and ReMax Realty

The Hunters argue that the trial court erred in entering summary judgments in favor of ReMax Advantage and ReMax Realty. However, the arguments the Hunters make on appeal, which concern alleged misrepresentations on the part of ReMax Advantage and ReMax Realty, do not appear in their complaint. Accordingly, we will not address the merits of the Hunters’ arguments. See Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326, 1328 (Ala.1991) (“This Court cannot put a trial court in error for failing to consider a matter which, according to the record, was not presented to, nor decided by it.”).

Conclusion

The trial court’s summary judgments for ReMax Advantage, ReMax Realty, and Wilshire were proper. Accordingly, we affirm the judgments.

AFFIRMED.

NAJBERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Wilshire is the loan servicer for the mortgagee, First Union National Bank, as trustee of a residential collateral mortgage trust, which obtained title to the property by an auctioneer’s deed.

      . There was no contract entered into on October 31, 2002.

      . The Hunters also argue that the reference in the counteroffer to "a contract dated October 31, 2002 by and between the Hunters and Wilshire Credit Corp. and [the fact that] there is no such contract dated October 31, 2002,” creates an ambiguity. The argument that the counteroffer is ambiguous concerns the interpretation of the counteroffer. It does not support the Hunters' argument that the purchase agreement and the addendum, neither of which is dated October 31, 2002, form the only enforceable contract.

      . The addendum increased the purchase price to $119,500, increased the amount of the earnest-money deposit to $6,000, required the Hunters to provide a pre-qualification letter within five days and to acquire full loan approval by October 31, 2002, and stated that Wilshire would credit the Hunters $400 for the purchase of a home warranty.

      . The Hunters do not allege in their complaint or on appeal that Wilshire presented the counteroffer because the title binder identified defects in the title to the property, nor do they allege that Wilshire breached the implied covenant of good faith and fair dealing when it presented the counteroffer on the same day the insurer issued the title binder. See Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 267 (Ala.2002) (" ' “There is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the rights of the other party to receive the fruits of the contract; ... in every contract there exists an implied covenant of good faith and fair dealing.” ' " (quoting Sellers v. Head, 261 Ala. 212, 73 So.2d 747, 751 (1954))). See also Restatement (Second) of Contracts § 205 (1981) ("Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”).

      . In Cavalier, Clarke purchased a mobile home from Cedar Ridge Factory Outlet. At the time of the sale, Clarke and Cedar Ridge executed both a retail installment contract containing an arbitration clause and an "Agreement for Binding Arbitration." The Court stated that "Cedar Ridge argues correctly that a subsequent agreement — the ‘Agreement for Binding Arbitration' ...— would supersede a prior agreement — the retail installment contract.” 862 So.2d at 642. See also CMI International, 251 Mich.App. at 130, 649 N.W.2d at 812.


source: Caselaw Access Project

author: SEE, Justice. SEE, Justice

license: Public Domain

text:
    Darrell LATHAM, individually and as class representative v. DEPARTMENT OF CORRECTIONS et al.
    1031810.
    Supreme Court of Alabama.
    Oct. 28, 2005.

      Kenneth J. Mendelsohn, Thomas E. James, and Ellenann C. Benefield of Jemi-son, Mendelsohn & James, P.C., Montgomery, for appellant.
    Charles M. Crook, general counsel and deputy atty. gen., and Albert S. Butler, asst. gen. counsel and asst. atty. gen., Department of Corrections, for appellees.
   SEE, Justice.

Darrell Latham appeals the Montgomery Circuit Court’s judgment in favor of the Alabama Department of Corrections; Alabama Correctional Industries; Donal Campbell, the commissioner of the Department of Corrections; and Benitta Carter, the warden at the Decatur Community Correctional Facility. We affirm.

I. Facts and Procedure

In 2003, Alabama Correctional Industries (“ACI”), a division of the Alabama Department of Corrections (“DOC”), contracted with Wilson Sporting Goods Co. (“Wilson”) to have inmates in DOC’s custody inflate and package various sports balls and to package other sports equipment for Wilson. Under the contract, Wilson would ship sports equipment, deflated sports balls, and the necessary packaging to DOC’s Decatur Community Correctional Facility (“the Decatur facility”). When the materials arrived at the Decatur facility, inmates would inflate the balls and package them. The inmates would also occasionally relabel and package baseball bats and other sports equipment. They would then place the packaged sports balls and other sports equipment onto pallets and load the pallets onto trucks to be shipped back to. Wilson. In return for these services, ACI received a negotiated rate per ball inflated and per item packaged. The contract expired in January 2004*

■ Officials at the Decatur facility assigned certain inmates to the inflation and packaging processes. According to Carter:

“All newly arrived inmates and those who received disciplinary actions are assigned to ACI to work' unless there exists a validated reason they can not. Newly arrived inmates generally do not go directly into [a work-release program] unless they transfer in from another work release via a pass and are in community custody. Inmates who receive disciplinarles that remove them from their [work-release] jobs are not permitted to work unsupervised and are also ineligible for ‘free world’ jobs. Inmates are assigned to- ACI for a period of approximately 90 days, upon arrival.”

Thus, in general, the inmates in the Decatur facility were required to perform work to'fulfill the Wilson contract. ■ The prisoners who were ‘required to work under the Wilson contract were paid up to $.25 per hour for their labor. ■

Darrell Latham, án inmate at the Decatur facility who was ineligible for work release, was assigned to work on the Wilson contract. DOC'alleges that Latham was originally assigned to inflate sports balls. In October 2003, Latham, on behalf of himself and other prisoners who were similarly situated, brought a class action against DOC, ACI, Campbell, ■ Carter, and Wilson in the Morgan Circuit Court. La-tham sought a judgment declaring that, pursuant to Ala. Const.1901, Art. I, § 32; §§ 14-7-7, -8, and -22, Ala.Code 1975; and § 14-8-1 et seq., Ala.Code 1975, DOC and ACI do not have the authority to contract inmate labor to a -private company such as Wilson. Latham also alleged that he and the other members of the purported class on behalf of which he sought relief were due back wages for work they had performed for Wilson. Finally, Latham sought to enjoin DOC, ACI, Campbell, and Carter from continuing to require prisoners to work under contracts that provide prison-made goods to private companies.

DOC, ACI, Carter, and Campbell moved the Morgan Circuit Court to transfer the action to the Montgomery Circuit Court pursuant to § 6-3-9, Ala.Code 1975. The Morgan Circuit Court granted the motion and transferred the action to the Montgomery Circuit Court.

DOC, ACI, Carter, and Campbell then moved the Montgomery Circuit Court for a summary judgment, arguing: (1) that Latham is not a proper class representative and that the class-certification issue is moot because Latham is no longer an inmate at the Decatur facility and thus is not working on the Wilson contract; (2) that DOC and ACI have the duty to develop manual-labor programs pursuant to § 14-5-30 et seq., Ala.Code 1975, and, therefore, may properly contract out prison labor to private companies; (3) that DOC, ACI, Campbell, and Carter are entitled to sovereign immunity; and (4) that La-tham’s allegation that DOC and ACI violated § 14-8-4, Ala.Code 1975 (in Article I, entitled “Work Release for State Inmates”), and § 14-8-36, Ala.Code 1975 (in Article II, entitled “Work Release for County Inmates and State Inmates in County Custody”), is without merit because those sections are inapplicable to him because he was not eligible for the work-release program.

The trial court allowed Latham to proceed with limited discovery before ruling on the motion for a summary judgment filed by DOC, ACI, Campbell, and Carter. After a hearing, the trial court ruled that Latham is not a proper class representative and that his class-action claims were due to be dismissed. In addition, the trial court ruled that, as to all other claims, summary judgment should be entered. Latham appeals.

II. Standard of Review

The standard for review of a summary judgment is well established:

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“... [Section 12-21-12, Ala.Code 1975,] mandates that the [nonmovants] meet their burden by ‘substantial evidence.’ Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

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

The trial court has substantial discretion in determining whether to certify a class, and this Court will not disturb the trial court’s determination on that issue unless the trial court exceeds its discretion. Bill Heard Chevrolet Co. v. Thomas, 819 So.2d 34, 40 (Ala.2001).

III. Analysis

A. Sovereign Immunity

Latham argues that the trial court erred in entering the summary judgment in favor of DOC, ACI, Carter, and Campbell. He argues that the doctrine of sovereign immunity does not shield DOC, ACI, Carter, and Campbell from his requests for back wages, compensatory damages, and declaratory and injunctive relief. DOC, ACI, Campbell, and Carter argue that the doctrine of sovereign immunity bars La-tham from bringing any of those claims. We agree that the doctrine of sovereign immunity bars Latham from bringing any claim for back wages or compensatory damages.

1. Claims for Back Wages and Compensatory Damages

DOC, ACI, Campbell, and Carter do not provide any legal authority in support of their assertion that they are entitled to sovereign immunity. Instead, they simply state:

“The law is clear that the State, its agencies, or the employees within those agencies, [have] absolute immunity against a suit for damages.”

(Brief of DOC, ACI, Campbell, and Carter, pp. 10-11.) This Court does not typically consider general assertions that are not supported by legal argument and supporting authorities; nonetheless, “[t]he State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority.” Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala.2001)(citing Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala.1979)). “ ‘The long-standing legal principle of state sovereign immunity is written into Alabama’s Constitution. “Article I, § 14, of the Alabama Constitution of 1901 provides that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ ” ’ ” Larkins, 806 So.2d at 363 (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 434-35 (Ala.2001), quoting in turn Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala.1996)). Additionally, officers or agents of the State acting in their official capacities are immune from suit if the result would affect the financial status of the state treasury. Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872-73 (Ala.2004). Therefore, even where the State has not properly argued sovereign immunity as a defense to an action, “ ‘ “a trial or an appellate court should, at any stage of the proceedings, dismiss a suit when it becomes convinced that it is a suit against the State and contrary to Sec. 14 of the Constitution.” ’ ” Larkins, 806 So.2d at 364 (quoting Lyles, 797 So.2d at 435, quoting in turn Aland v. Graham, 287 Ala. 226, 250 So.2d 677, 678 (1971)).

DOC is a department of the State and therefore is entitled to sovereign immunity. Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004). ACI is a division of DOC and is therefore also entitled to sovereign immunity. Both Campbell and Carter, as officers and agents of the State, are entitled to immunity. See 885 So.2d at 788 (holding that the doctrine of sovereign immunity bars actions against state officers in their official capacities when those actions are, in effect, actions against the State and holding also that the commissioner of DOC is entitled to state-agent immunity because the commissioner represents a department of the State).

In general, the State is immune from any lawsuit that would directly affect a contract or property right of the State or result in the plaintiffs recovery of money from the State. See Jones, 895 So.2d at 873. A claim for backpay is a claim for compensatory damages. 895 So.2d at 875-76 (holding that the doctrine of sovereign immunity bars claims for retrospective relief and backpay against a state university based on a breach of an employment contract); Vaughan v. Sibley, 709 So.2d 482, 486 (Ala.Civ.App.1997). The doctrine of sovereign immunity thus bars an action seeking backpay. Jones, 895 So.2d at 876; Vaughan, 709 So.2d at 486. Therefore, the trial court did not err in entering a summary judgment dismissing Latham’s claims for back wages and compensatory damages, which are barred by Art. I, § 14, of the Alabama Constitution of 1901.

2. Declaratory and Permanent Injunc-tive Relief

In addition to his claims for compensatory damages and back wages, Latham seeks declaratory and injunctive relief. Specifically, Latham seeks a judgment declaring that DOC and ACI do not have the authority to contract inmate labor to a private company such as Wilson, and he seeks to enjoin DOC, ACI, Campbell, and Carter from continuing to require prisoners to work under contracts that provide prison-made goods to private companies.

There are four exceptions to sovereign immunity. A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation. Jones, 895 So.2d at 873. Latham’s claims for declaratory and injunctive relief are not barred by the doctrine of sovereign immunity; however, for the reasons discussed below, we do not reach the merits of Latham’s argument that he is entitled to that relief.

B. Claims Not Barred by the Doctrine of Sovereign Immunity

The trial court concluded that La-tham was not a proper class representative and, therefore, dismissed the class claims for declaratory and injunctive relief. On appeal, Latham argues that he meets the criteria to be the class representative in this action because, he says, “he was an injured party and had standing to file this suit.” Class actions in Alabama are governed by Rule 23, Ala. R. Civ. P., and Ala.Code 1975, §§ 6-5-640, -641, and -642. Rule 23(a), Ala. R. Civ. P., sets out four prerequisites to certification as a class action: numerosity, commonality, typicality, and adequacy of representation:

“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Pursuant to Ala.Code 1975, § 6-5-641(e), when a trial court decides that “the party or parties requesting class certification have proved its or their entitlement to class certification under Ala. R. Civ. P. 23,” the trial court is to “employ[ ] a rigorous analysis” to determine whether to certify the class. In addition, “[t]he burden of coming forward with such proof shall at all times be on the party or parties seeking certification, and if such proof shall not have been adduced, the court shall not order certification of the class.” The trial court is not to order certification of the class unless all factors required by Rule 23, Ala. R. Civ. P., have been established. Ala.Code 1975, § 6-5-641(e).

In support of his argument that he is a proper class representative in this case, Latham fails to cite Rule 23, Ala. R. Civ. P., Ala.Code 1975, § 6-5-641, or any other authority. He presents no argument with regard to numerosity, commonality, typicality, or adequacy of representation, nor does he argue that he met his burden under Ala.Code 1975, § 6 — 5—641(e). See Ala.Code 1975, § 6-5-641(a) (“No class of civil litigants shall be certified or recognized by any court of the State of Alabama unless there shall have been compliance with the procedures for certification of the class set forth in this article.”).

Rule 28(a)(10), Ala. R.App. P., requires that the argument section of an appellant’s brief contain “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.” That an appellate court will disregard a party’s argument for failure to comply with Rule 28(a)(10), Ala. R.App. P., is well established:

“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a)( [10]); Spradlin v. Birmingham, Airport Authority, 613 So.2d 347 (Ala.1993).” ’ ”

FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344 (Ala.2005) (quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001) (citing City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998))). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).

Latham presents insufficient argument in support of his contention that he is a proper class representative; he cites no authority in support of that argument On the scant argument and authority Latham presents, we will not reverse the trial court’s decision that Latham is not a proper class representative. Because we cannot conclude that the. trial court erred in finding that Latham is not a proper class representative, we cannot conclude that trial court erred in dismissing the claims asserted on behalf of the class.

Having concluded that Latham’s claims for declaratory .and injunctive relief, which are not barred by the doctrine of sovereign immunity, are not adequately presented, we do not reach the merits of Latham’s substantive argument — that DOC and ACI do not have the authority to contract inmate labor to a private company such as Wilson.

Conclusion

We affirm the trial court’s summary judgment in favor the defendants with respect to Latham’s claim for back wages and compensatory damages. We also affirm the trial courts summary judgment in favor of the defendants with respect to Latham’s inadequacy as class representative. We, therefore, do not reach the merits of Latham’s substantive argument on behalf of the class that DOC and ACI lack the authority to contract inmate labor to a private company such as Wilson.

AFFIRMED.

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

SEE, J., concurs specially.

SEE, Justice

(concurring specially).

Because of the posture of the case, this Court did not reach the merits of Darrell Latham’s substantive argument th&t ACI and DOC do not have the authority to contract inmate labor to a private company to package products or to perform other functions in the production or readying of products for the private market. I do not purport to answer the question, but I do note that DOC is a statutorily created agency. See § 14-1-1.1, Ala.Code 1975. DOC’s power is conferred by statute; it may exercise only those powers prescribed by statute. See Wright v. Aldridge, 219 Ala. 632, 633, 123 So. 33, 34 (1929) (holding that the Alabama Board of Public Accountancy “is of statutory and limited power, and ... has no powers other than those conferred by the statute of its creation, and, according to the general rule applicable, the exercise of these powers can only be invoked in the manner and mode prescribed by statute”). Additionally, “[a]n administrative agency cannot ... contravene a statute.” Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala.1991) (citing Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 33 So.2d 11 (1947)). Thus, DOC and its subagency, ACI, must operate within the applicable bounds set by the Prison-Made Goods Act of Alabama, §§ 14-7-1 to -23, Ala.Code 1975, and any other applicable legislation.

I also note that the Prison-Made Goods Act authorizes DOC to use prison labor to manufacture articles or products “as may be needed for the. construction, operation, maintenance or use of any office, depart-merit, institution or agency supported in whole or in part by this state and the political subdivisions thereof.” § 14-7-8, Ala.Code 1975. It specifically prohibits DOC from selling or offering to sell on the open market of this State any articles manufactured by prisoners. § 14-7-22(a), Ala.Code 1975.

DOC and ACI suggest that, even if they are not authorized under § 14-7-22, Ala. Code 1975, to contract with Wilson, they have the authority to do so under the statutory provision authorizing the Manual Labor Work Program, § 14-5-30 et seq. DOC is authorized under that article of the Code to create manual-labor programs: (1) to remove litter from the highways; (2) to clean unauthorized dumps and public cemeteries; (3) to grow food for prisoners’ consumption or for sale to reduce costs of incarcerating prisoners; (4) to clean public parks or other municipal, county, or state property; and (5) to remove litter from private property. See §§ 14-5-30, -33, and -34, Ala.Code 1975. The list of authorized work generally falls into the category of cleaning public or private property or raising food.

DOC also says that it was expressly authorized under § 14-3^47, Ala.Code 1975, to establish labor camps for prisoners and to direct prisoners to work at any site. I note that DOC is authorized “to direct inmates to work at any labor ... except as provided otherwise by law,” § 14-3-47(a), Ala.Code 1975.

While I reach no conclusion as to the propriety of DOC and ACI’s contracting prison labor for the benefit of private businesses, I note that such a conclusion does not appear obvious, and I would not want the main opinion in this case to be misread as putting the imprimatur of this Court on DOC and ACI’s practice.

      . The record reveals that, although the contract between ACI and-Wilson formally- terminated in January 2004, the Decatur facility continued to do some work for Wilson beyond January 2004.

      . The record reflects that one inmate was eligible for work release but opted to participate instead in the ball-inflation program.

      . Ala. Const.1901, Art. I, § 32, provides "[t]hat no form of slavery shall exist in this state; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.”

      . Section 14-7-7, Ala.Code 1975, provides:
      "It is hereby declared to be the intent of this chapter:
      "(1) To provide more adequate, regular and suitable employment for the vocational training and rehabilitation of the prisoners of this state, consistent with proper penal purposes;
      "(2) To utilize the labor of prisoners for self-maintenance and for reimbursing this state for expenses incurred by reason of their crimes and imprisonment; and
      "(3) To effect the requisitioning and disbursement of prison products directly through established state authorities without possibility of private ■ profits therefrom.”
      Section 14-7-8, Ala.Code 1975, provides:
      "The Alabama Board of Corrections is authorized to purchase in the manner prescribed by law, equipment, raw materials and supplies and to engage the supervisory personnel necessary to establish and maintain for this state at the penitentiary or any penal farm or institution now or hereafter under the control of said board industries for the utilization of services of prisoners in the manufacture or production of such articles or products as may be needed for the construction, operation,. maintenance or use of any office, department, institution or agency supported in whole or in' part by this state and the. political subdivisions thereof.”
      Section 14-7-22, Ala.Code 1975, provides:
      "(a) On and after August 13, 1.976, it shall be unlawful to sell or offer for sale on the open market of this state any articles or products manufactured wholly or in part in this or any other state by prisoners of this state or any other state, except prisoners on parole or probation.
      "(b) Any person who willfully violates the provisions of subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not less than 10 days nor more than one year or shall be fined not less than $10.00 nor more than $500.00 or both, in the discretion of the court.”

      . Sections 14-8-1 et seq., Ala.Code 1975, relate to the implementation of work-release programs for inmates.

      . Section 6-3-9, Ala.Code 1975, provides, in pertinent part, that "[a]ll actions where the prison system or the state on account of the prison system is interested must be commenced in Montgomery County...."

      . Section 14-5-30, Ala.Code 1975, provides:
      "It is the intent of the Legislature to require the Department of Corrections to develop, within six months after July 31, 1995, a manual labor work program for all inmates. This should also include the development of community-based manual labor camps. The manual labor required of the inmate shall be as rigorous as the department feels is justified, but shall consist primarily of the removal of litter from the highways of this state, the cleaning of unauthorized dumps and public cemeteries, the growing and raising of food for use by inmates or for sale to reduce the costs of incarceration to the taxpayers, and the cleaning and maintenance of public parks, or municipal, county, or state property. It is the further intent of the Legislature to require the department to assign all inmates who do not have a mental or physical impairment which would prevent them from performing manual labor to the manual labor work program and to develop a work incentive program.”

      .Section 14-8-4, Ala.Code 1975, provides:
      "The commissioner shall endeavor to secure employment for eligible inmates under this article, subject to the following:
      “(1) Such employment must be at a wage at least as high as the prevailing wage for similar work in the area or community where the work is performed and in accordance with the prevailing working conditions in such an area;
      "(2) Such employment shall not result in the displacement of employed workers;
      "(3) Inmates eligible for work release shall not be employed as strikebreakers or in impairing any existing contracts; and
      "(4) Exploitation of eligible prisoners, in any form, is prohibited either as it might affect the community, the inmates or the board.”

      . Section 14-8-36, Ala.Code 1975, provides:
      "(a) The State of Alabama and any county are hereby authorized to become employers of work release inmates under this article, and as such may employ inmates to perform any state or county job available, including, but not limited to, road or bridge work, garbage collection and school grounds maintenance.
      “(b) Inmates employed under this section shall be paid the federally established minimum wage.”

      . The trial court’s order states:
      "This matter having come before the Court on [DOC, ACI, Campbell, and Carter’s] motion for summary judgment, and the response filed by [Latham], and the Court having held a hearing and heard argument, the Court finds:
      "(1) That the Plaintiff, Darrell Latham, does not meet the criteria to be the class representative in this action;
      "(2) That the complaint for class action certification is due to be denied and dismissed;
      “(3) That the motion for summary judgment is due to be granted in favor of the Defendants as to all other claims[.]”
      Although the order is not clear in this regard, according to the case action summary, this order also disposed of the claims against Wilson. Latham makes no argument on appeal regarding the trial curt’s judgment in favor of Wilson, and Wilson has not appeared before this Court in this appeal.

      . See Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1250 n. 3 (Ala.2005)(quoting Messer v. Messer, 621 So.2d 1343, 1344 (Ala.Civ.App.1993)). "Furthermore, 'it is not the function of this Court to do a party's legal research or to make or address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ " Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003)(quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)(citing in turn Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992))).

      . On appeal Latham seeks declaratory and injunctive relief only in his representative capacity. Latham did not distinguish his individual claims for declaratory and injunctive relief from his class claims either on appeal or below. On appeal, in his "Statement of the Issues,” Latham says that "the Plaintiff Class is Seeking an Injunction.” In both the "Introduction” and the "Summary of the Argument” sections of his brief, Latham states that he "is seeking injunctive relief which is needed in order to protect the Plaintiff class from further harm.” In his argument addressing injunctive relief and in his "Conclusion,” Latham states that he seeks relief for the benefit of the class, namely, "to prevent other harm to inmates within the class” and "in order to protect the Plaintiff class from further harm.”

      . Latham does not argue that the trial court failed to conduct the "rigorous analysis” required under Ala.Code 1975, § 6-5-641.

      . Latham asserts that whether he is a proper class representative "should be determined at a class certification hearing.” Latham cites no authority in support of his proposition. While Ala.Code 1975, § 6-5-641(d), provides that ”[t]he court shall, on motion of any party, hold a full evidentiary hearing on class certification,” the record before us does not indicate that any party moved for a class-action certification hearing.

      . "Manufacture” is defined in Webster's Third New International Dictionaiy of the English Language Unabridged 1378 (1993) as:
      "vt. 1: to make (as raw material) into a product suitable for use ... 2a to make from raw materials by hand or by machinery ... b: to produce according to an organized plan and with division of labor....”
      To "manufacture” implies a transformation; " ‘a new and different article must emerge’ " and the "finished or ultimate product be integrated from the elements originally diverse in forms.” State v. Selma Foundry & Machine Co., 276 Ala. 161, 165, 166, 160 So.2d 1, 5 (1963). No article is " 'considered manufactured until it has been put into condition for sale on the open market for the purpose for which it was intended to be used.' ” Burke v. Stitzel-Weller Distillery, 284 Ky. 676, 145 S.W.2d 861, 863 (Ct.App.1940) (emphasis omitted) (holding that although whiskey may be "manufactured” before being bottled, whiskey cannot be sold until it is bottled and that bottling must constitute a part of manufacturing to make whiskey ready for the final use for which it was intended).

      . In interpreting a statute, this Court reviews the language of the statute and follows the ejusdem generis principle of construction that general words following an enumeration of specific items are construed to embrace objects similar to the objects enumerated by specific words. Ex parte Cobb, 703 So.2d 871, 875-76 (Ala.1996)(construing the phrase "deadly weapon” in § 13A-1-2(11), Ala.Code 1975, to include only things that are similar to the 12 listed weapons and holding that the human fist does not fall within that class). The ejusdem generis principle treats particular words as indicating a class and general words as extending to other nonenumerated objects embraced in that class. Sheffield v. State, 708 So.2d 899, 908 (Ala.Crim.App.1997).


author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    TRANSCONTINENTAL TITLE COMPANY, INC. v. Allen Carl KERNEY and Angel G. Kerney.
    2030670.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2005.
    Rehearing Denied Feb. 18, 2005.
    Certiorari Denied Nov. 10, 2005 Alabama Supreme Court 1040824.
    David E. Hudgens, Daphne, for appellant.
    Richard L. Watters, Mobile, for appel-lees.
   YATES, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Terry Cove N., Inc. v. Baldwin Cty. Sewer Auth., Inc., 480 So.2d 1171 (Ala.1985); Jones v. Bullington, 401 So.2d 740 (Ala.1981); and Mays v. Julian LeCraw & Co., 807 So.2d 551 (Ala.Civ.App.2001).

This case was transferred to this court by the supreme court, pursuant to §. 12-2-7(6), Ala.Code 1975.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., dissents, with writing.

MURDOCK, Judge,

dissenting.

I respectfully dissent. See Vester J. Thompson, Jr., Inc. v. Citmoco Services, Inc., 371 So.2d 35, 39 (Ala.Civ.App.1977) (quoting Southern R.R. v. Birmingham Rail & Locomotive Co., 210 Ala. 540, 541, 98 So. 727, 728 (1924)), rev’d on other grounds, 371 So.2d 42 (Ala.1978). See also Interstate Investment Corp. v. Rose Care, Inc., 631 So.2d 836, 839 (Ala.1993); Fraley v. Brown, 460 So.2d 1267, 1269 (Ala.1984); and J.I.T. Servs., Inc. v. Temic Telefunken-RF Eng’g LLC, 903 So.2d 852 (Ala.Civ.App.2004).


author: CRAWLEY, Presiding Judge. THOMPSON, Judge, CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    HOUSING AUTHORITY OF the BIRMINGHAM DISTRICT v. Sherry PRITCHETT.
    2030826.
    Court of Civil Appeals of Alabama.
    June 10, 2005.
    Opinion Granting Application for Rehearing Sept. 2, 2005.

      Marshall R. Jackson and Naomi H. Truman, office of general counsel, Housing Authority of the Birmingham District, Birmingham, for appellant.
    Barbara Luckett and Kenneth J. Lay of Legal Services Alabama, Inc., Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

The Housing Authority of the Birmingham District (“the landlord”) appeals from an order setting aside a jury verdict in its favor and entering a judgment as a matter of law in favor of Sherry Pritchett (“the tenant”) in an unlawful-detainer action. We reverse.

On October 12, 1999, the landlord and the tenant entered into an agreement whereby the tenant leased an apartment in the Morton Simpson Village public-housing project operated by the landlord. On December 10, 2001, the tenant was “recerti-fied” as the occupant of the apartment under the lease. On May 1, 2002, the tenant was arrested by officers of the Birmingham Police Department and charged with the misdemeanor offense of interfering with a governmental operation. The tenant pleaded guilty to the charge. On September 5, 2002, the landlord notified the tenant that it was terminating her lease based on her violation of the criminal-activity provisions of the lease, which provided, in pertinent part:

“RESIDENT AGREES:
“(K) To assure that the resident, another person under the resident’s control, any member of the resident’s household, or a guest, shall not engage in:
“(1) Any criminal activity on or off the landlord’s premises that the landlord determines may interfere with or threaten the health, safety, or right to peaceful enjoyment of the premises by other residents, employees of the landlord or any other person lawfully on the landlord’s premises.
“(Q) To refrain from any illegal or other activity that may be detrimental to or impair the physical or social environment and/or the health and safety of the residents of the development (including illegal possession or use of controlled substances);
“(V) Tó' abide by all necessary regulations and policies made by the landlord for the benefit and well-being of the landlord and residents. Policies -and regulations are posted in the landlord’s offices and are incorporated herein by reference.”

On October 8, 2002, when the tenant had failed to vacate the premises, the landlord filed an unlawful-detainer aption in Jefferson District Court. After a trial, the district court entered a judgment in favor of the landlord; the tenant timely appealed to the Jefferson Circuit Court and demanded a jury trial.

On January 27, 2004, the case was tried to a jury in circuit court. The landlord presented evidence establishing that on May 1, 2002, Birmingham police officers present at the housing project to execute a search warrant in a “drug bust” arrested the tenant and charged her with the misdemeanor offense of interfering with a governmental operation. Detective James Jordan, a narcotics officer with the Birmingham Police Department, testified that on May 1, 2002, he and 11 other officers clad in riot gear arrived on the premises of the Morton Simpson Village housing project. Det. Jordan stated that the officers approached an apartment occupied by suspected drug dealers from a direction that the suspected drug-dealer occupants could not see them. As the officers were making their approach, Det. Jordan saw the tenant “wav[ing] her hand wildly” toward the drug dealers, yelling, and pointing at the officers. Jordan stated that he could not hear what the tenant was saying, but he thought the tenant was trying to alert the drug dealers to the presence of the officers. He stated that he assumed that the tenant was trying to warn the drug dealers of the officers’ approach because, he testified, “the drug dealer came around the corner and looked at [the tenant] and looked at us, and [then] turned around and ran.” Det. Jordan said that he saw no children in the area. He drew a diagram indicating the location of the apartment for which he had a search warrant, the direction from which the officers were approaching, and the position of the tenant. The diagram was not submitted in evidence and is not in the record on appeal. After the landlord presented its case, the tenant moved for a judgment as a matter of law (“JML”), which the circuit court denied.

The tenant testified that on the day in question three people visited her — her four-year-old granddaughter, a friend, and the friend’s seven-year-old niece. The tenant stated that her friend took the two young girls outside to play, after which the tenant heard a noise, looked outside, and saw about 10 police officers alight from a van and run across the parking lot. The tenant testified that, in an attempt to protect her granddaughter, she went outside, motioned to her friend, and “hollered” at her to get the children back inside. The tenant also drew a diagram indicating the positions of the police officers, her friend, the two children, and herself. That diagram is also not in the record on appeal.

The tenant testified that she pleaded guilty to the offense of interfering with a governmental operation because a friend who posted her bail advised her that it would be in her best interest to do so. She testified that she told the apartment manager that she had pleaded guilty because she could not afford to pay a lawyer to represent her. She stated that she would not have pleaded guilty if she had known that she would be evicted from her apartment.

The tenant renewed her motion for a JML at the close of all the evidence; the court denied the motion. The jury returned a verdict in favor of the landlord. On February 25, 2004, the tenant filed a postverdict motion for a JML pursuant to Rule 50(b), Ala. R. Civ. P., alleging, among other things, that the evidence was insufficient to support the verdict, and, in the alternative, a motion for a new trial pursuant to Rule 59, Ala. R. Civ. P., alleging that the verdict was against the weight and preponderance of the evidence. On March 25, 2004, the circuit court granted the tenant’s motion for a JML. The court determined:

“[The tenant] lives in a housing project managed by [the landlord] at 4507B Eighth Terrace North in Birmingham. Her current lease was updated on [December] 10, 2001. [The landlord] furnished [the tenant] with a Lease Termination Notice and Demand for Possession effective September 10, 2002. The basis for the termination was the allegation that she had violated Section IV(K-l), (Q) and (V) of her lease. Specifically, the notice stated:
“ ‘On or about May 1, 2002, while [the] Birmingham Police Department was executing a search warrant in the housing development, you were arrested for interfering with a Government Operation. [The landlord] considers this to be a violation of the criminal activity provision of your lease. Therefore, your lease is being terminated on these bases.’
“The court has heard the evidence and during the trial it became clear to the court that a misunderstanding caused the police to arrest [the tenant]. When [the tenant] saw the heavily armed SWAT team from the Birmingham Police Department coming into her housing project, she became concerned because her young grandchild was playing outside in the direction the team was going. She waved her arms to signal in order to get them out of the path of danger. Her actions were misinterpreted by the policemen as sending a signal to the drug dealers who were the subject of the raid. Therefore, she was charged with interfering with a government operation. With the lack of counsel, she took the easy path and entered a guilty plea to the charge.
“Under the clear facts of this ease, the court finds that the verdict in this case was against the great weight and preponderance of the evidence. There was no substantial evidence presented [at] the trial to support the verdict. [The tenant] was not guilty of violating the terms of her lease.
“It is, therefore, Ordered and Adjudged that the judgment of January 28, 2004 is set aside. Judgment as a matter of law is entered in favor of the defendant, [the tenant], and against the plaintiff [the landlord]. Costs are taxed as paid.”

The issue presented on this appeal requires us to distinguish evidentiary sufficiency from evidentiary weight.

“Evidentiary challenges, except on grounds of admissibility, are divided into two separate and distinct categories: sufficiency of the evidence raised by motions for J.N.O.V. [now JML] and measured by the ‘scintilla’ [now substantial] evidence rule; and weight and preponderance of the evidence raised by a motion for new trial and measured by the ‘palpably wrong and manifestly unjust’ standard.”

Nelson Bros., Inc. v. Busby, 513 So.2d 1015, 1018 (Ala.1987).

“ ‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now, preverdict and postverdict motions for a JML] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-mov-ant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)).

“In a jury case, a motion for judgment as a matter of law challenges the sufficiency of the evidence supporting the verdict. To review the sufficiency, we consider the entire trial record in the light most favorable to the nonmovant, drawing reasonable inferences in its favor. ‘An issue is properly submitted to the jury where there is a conflict in substantial evidence — “evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” ’ ”

Fluorine On Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 855 (5th Cir.2004) (citations omitted).

In this case, the tenant moved for a postverdict JML, attacking the sufficiency of the evidence, or, in the alternative, for a new trial, attacking the weight of the evidence. The circuit court entered a JML in favor of the tenant, thereby determining that the landlord’s evidence was insufficient to support the judgment. See Rule 50, Ala. R. Civ. P., Committee Comments. The issue whether the circuit court might properly have found the verdict to have been against the great weight of the evidence, thereby warranting a new trial, see Jawad v. Granade, 497 So.2d 471 (Ala.1986), is, therefore, not before us. The question that is before us is whether the circuit court erred in determining that the landlord failed to present evidence that was sufficient to authorize submission of the case to the jury. We answer that question in the affirmative.

In order to affirm the judgment of the circuit court, this court would have to conclude that, viewing the evidence in the light most favorable to the landlord, no reasonable person could infer — from the tenant’s conduct on the date in question and from her subsequent guilty plea — that the tenant was attempting to warn drug dealers of the presence of the police officers. We would have to hold that there was no substantial evidence on that material issue. This we cannot do.

The landlord presented evidence that, if believed by a jury, was sufficient to support a verdict for the landlord. The judgment of the Jefferson Circuit Court is reversed, and the cause is remanded with instructions to reinstate the verdict in favor of the landlord.

REVERSED AND REMANDED.

PITTMAN, MURDOCK, and BRYAN, JJ., concur.

THOMPSON, J., dissents, with writing.

THOMPSON, Judge,

dissenting.

Based on my review of the evidence, I would affirm the circuit court’s judgment as a matter of law in favor of the tenant.

On Application for Rehearing

CRAWLEY, Presiding Judge.

On application for rehearing, Sherry Pritchett (“the tenant”) argues that this court erred by remanding the cause to the trial court with instructions to reinstate the verdict in favor of the Housing Authority of the Birmingham District (“the landlord”). Citing Rule 50(c)(1), Ala. R. Civ. P., and Ex parte Handley, 494 So.2d 24 (Ala.1986), the tenant contends that we should have remanded the cause to the trial court with instructions to rule on her motion for a new trial. Rule 50(e)(1) states:

“(1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise'ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.”

(Emphasis added.) See also A.T. Stephens Enters., Inc. v. Johns, 757 So.2d 416, 420 (Ala.2000)(stating that the Alabama Supreme Court “has interpreted [Rule 50(c)(1) ] to require a mandatory ruling by the trial court on a motion for a new trial that is filed with a Rule 50(b) motion for a judgment as a matter of law” and that “the failure of the trial court to rule on such a motion is clear error”). The Committee Comments on the 1973 Adoption of Rule 50 state, in pertinent part:

“In an effort to eliminate unnecessary remands and evidentiary review by stale or unfamiliar minds, Rule 50(c) was devised. The procedure, in effect, requires the judge who has granted [a judgment as a matter of law (‘JML’) ] to also render an advisory opinion on any alternative motion for a new trial so the appellate court might have the benefit of this view in the event they reverse him on his grant of a [JML]. Thus, the appellate court can have an answer to the question, ‘Now that you have found out you erred in giving the -verdict-loser a [JML], would you give him a new trial?’ Note that the new trial ruling, if conditionally granted, is not binding on the appellate court.”

In Ex parte Handley, supra, a homeowner sued the City of Birmingham, alleging .negligence when raw sewage backed up into her home. After the jury rendered a verdict in favor of the homeowner, the City moved for a judgment notwithstanding the verdict (“JNOV”) (now a postver-dict judgment as a matter of law (“JML”)) and, in the alternative, for a new trial. The trial court granted the JNOV but did -not rule on the motion for a new trial. The homeowner appealed to the Alabama Supreme Court; that court held that the evidence was sufficient to support the verdict, reversed the JNOV, and remanded the cause to the trial court. On remand, the City asked the trial court to rule on its earlier motion for a new trial; the trial court granted the motion. The homeowner then petitioned for a writ of mandamus to compel the trial court to vacate its order granting a new trial. The Alabama Supreme Court granted the petition and issued the writ, recognizing that the trial court had erred by failing in ,the first instance to rule on the City’s motion for a new trial but holding that the City had waived that error by failing to raise the issue on appeal. The supreme court noted that the City, as the appellee, “could have raised the issue on [the homeowner’s] appeal without filing a cross-appeal.” Ex parte Handley, 494 So.2d at 25 n. 2.

“When the trial court fails [to rule on the alternative motion for new trial], and the non-moving party (the verdict winner) appeals the grant of [the JML], the movant must raise an issue on appeal as to the - failure of the trial court to enter the conditional ruling. If it does not do so, it will be held to a waiver of the right to a new trial in the event [the JML] is reversed. See Ex parte Handley; 494 So.2d 24 (Ala.1986).”

2 Champ Lyons, Jr., and Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 50.7 (4th ed. 2004).

The tenant argues that Ex parte Handley is distinguishable and cites Luker v. City of Brantley, 520 So.2d 517, 523 (Ala.1987), for the proposition that she has not waived the right to have her new-trial motion ruled upon. In Luker, the City of Brantley — the appellee against whom a verdict was rendered and for whom the trial court entered a JML without ruling on its alternative motion for a new trial— argued in its brief on original submission of the appeal that the trial court had erred by failing to rule on its motion for a new trial. Accordingly, the Alabama Supreme Court remanded the cause to the trial court with instructions to consider the new-trial motion. In so doing, the court stated:

“[Wjhere the issue of a new trial has arisen, as it has in the present case, before jurisdiction of the case has passed back to the trial court on remand with limiting instructions, a party’s right to have its motion for a new trial ruled upon by the trial court has not been waived.”

Luker, 520 So.2d at 523. Relying on the quoted language, the tenant contends that she has not waived her right to a ruling on the new-trial motion because she raised the issue on application for rehearing — a time that, she points out, is before the issuance of a certificate of judgment and “before jurisdiction of the case has passed back to the trial court on remand with limiting instructions.”

Although the tenant’s brief on original submission of this appeal did not allege any error, or even mention the trial court’s failure to rule on her new-trial motion, we conclude that the tenant has not waived the issue. Reading Ex parte Handley and Luker v. City of Brantley together, it appears that our supreme court considers it crucial that the appellate court be apprised of the new-trial issue before the matter is returned to the jurisdiction of the trial court. The tenant’s argument on application for rehearing satisfies that criterion. Therefore, we grant the tenant’s application for a rehearing, reverse the JML in favor of the tenant, and remand the cause to the trial court with instructions to consider and rule upon the tenant’s motion for a new trial.

APPLICATION FOR' REHEARING GRANTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN, J., concurs.

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

THOMPSON, J., dissents, without writing.

MURDOCK, J., dissents, with writing.

MURDOCK, Judge,

dissenting.

After carefully reviewing the record, I conclude that the record contains ample evidence to support the jury’s verdict and that the record in this case will not support a conclusion that that verdict was against the great weight of the evidence.

“ ‘Where the basis for granting a new trial is that the verdict is against the great weight and preponderance of the evidence, this Court will reverse the trial court’s new trial order if it is easily perceivable from the record that the jury verdict is supported by the evidence. In other words, if there is any evidence to support the jury’s verdict, this Court must conclude that the verdict is not palpably wrong or manifestly unjust and must reverse the trial court’s order granting the motion for a new trial. Jawad v. Granade, 497 So.2d 471 (Ala.1986); Ex parte Oliver, 532 So.2d 627 (Ala.1988); Northeast Alabama Reg. Med. Center v. Robinson, 548 So.2d 439 (Ala.1989).’ ”

Bird v. Metropolitan Life Ins. Co., 705 So.2d 363, 365 (Ala.1997) (quoting State v. Blackburn, 655 So.2d 948, 949 (Ala.1994)).

In light of the above-quoted standards, and given the record before us, I am convinced that any error by the trial court in failing to address Pritchett’s motion for a new trial was harmless, see Rule 45, Ala. R.App. P., and I see no need to remand this case for the trial court to rule on Pritchett’s motion for a new trial.

      . The tenant styled her motion as a motion for a directed verdict. That motion is now called a motion for a judgment as a matter of law, pursuant to Rule 50(a), Ala. R. Civ. P.


author: BRYAN, Judge.

text:
    MADIX, INC. v. Lenward Douglas CHAMPION.
    2030871.
    Court of Civil Appeals of Alabama.
    June 30, 2005.
    Rehearing Denied Sept. 30, 2005.
    Certiorari Denied Nov. 10, 2005 Alabama Supreme Court 1050078.

      Patricia K. Rea of Fann & Rea, P.C., Birmingham, for appellant.
    Donald R. Harrison, Dadeville, for ap-pellee.
   BRYAN, Judge.

Madix, Inc., appeals the judgment of the Tallapoosa Circuit Court finding Lenward Douglas Champion to be permanently and totally disabled as a result of two cumulative-physical-stress injuries to Champion’s back. Although Madix raises several issues on appeal, the dispositive issue is whether Champion established medical causation by clear and convincing evidence under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. We conclude that he did not, and, therefore, we reverse and remand with instructions.

In March 1994, Champion sustained an injury to his back at L4-5 in a work-related accident while working as a supervisor in Madix’s saw department and wood shop. Champion testified that his duties as a supervisor included general supervision of employees, driving a forklift, and sometimes operating a table saw. In April 1995, Champion took a leave from work to undergo surgery on his injured back. He returned to his supervisor position at Ma-dix in July 1995. In October 1997, Champion and Madix entered into a workers’ compensation settlement regarding Champion’s 1994 L4-5 injury.

Champion testified that, although his back condition improved temporarily following the surgery, his back “never ... quit hurting.” Champion further testified that his back pain gradually worsened after the surgery. He stated that his back would hurt worse during some periods than others. Champion testified that his physical therapist had told him in 1996 or 1997 that he would always need medical care and medication for his back because of his 1994 injury.

Champion testified that several events associated with “everyday living” caused him increased back pain in the years following his 1995 surgery; those events included crawling under his house, coughing with bronchitis, climbing stairs at home, walking up and down an- incline, sitting with a family member at a hospital, and standing at a family reunion. Champion also testified that on a number of occasions his back pain would worsen without any precipitating event.

In November 1998, Champion left his supervisor position and became a quality-control inspector at Madix. Champion testified that as quality-control inspector he had to bend, twist, and kneel to inspect wood products. He testified that, after he started his new position in November 1998, his back pain became “twice as bad” as it had been before. Champion further testified that “standing up and staying on the cement and all of that aggravated [his back].”

In September 1999, Champion, pursuant to instructions from his physical therapist, took a leave of absence from work to rest his back. Champion testified that his back did not significantly improve during that period. Champion was unable to return to work, and Madix terminated his employment in early 2000.

Two of Champion’s treating physicians, Dr. Stan Faulkner and Dr. Rita Harvey, testified by deposition regarding the possible causes of Champion’s injuries. In November 1994, Dr. Faulkner first treated Champion for the work-related injury at L4-5 that Champion had sustained in March 1994. Dr. Faulkner testified that the results of a 1999 MRI on Champion indicated some disk protrusion at L5-S1 and some bulging of the L4-5 nerve root. Dr. Faulkner characterized the disk protrusion at L5-S1 as “a new and different problem” that was distinct from Champion’s 1994 work-related injury. He opined that the L5-S1 injury was caused by degenerative disk disease, a disease Champion suffered from when Dr. Faulkner initially treated him in 1994. Dr. Faulkner further testified that a CT myelogram performed on Champion in 1996 indicated for-aminal stenosis, disk degeneration, and disk-space collapse at L4-5.

Dr. Faulkner gave the following testimony regarding whether Champion’s work activities contributed to his degenerative-disk problems:

“Q. Is it your opinion that the [L5-S1] disk problem is directly related to the progressive nature of his degenerative disk disease?
“A. Yes.
“Q. From just life?
“A. Right.
“Q. ... [If] you’re working in a job that required those things, which you in 2000, limited [Champion] from not doing [walking on concrete floors, repetitive bending, stooping, crawling, and climbing], wouldn’t that cause [his degenerative condition] to happen quicker?
“A. No, I don’t think so.
“Q. But do you deny absolutely that in your professional opinion it could not happen?
“A. It possibly can happen. But I think it’s more likely not than so. I think it’s less likely than it would happen.... In my honest opinion, does walking on concrete make a disk herniate? No. I don’t think it does. I really don’t.
“Q. Walking on concrete —
“A. Climbing stairs....
“Q. Stooping and bending, which are part of his job—
“A. No more than sitting around the house, walking through the yard, getting in and out of a car.
“Q. So you don’t think any of those things would could increased [sic] the degenerative disease at all, any of those activities?
“A. Yes, they possibly could.
“Q. And that increase, other than what we would call repetitive everyday activities, would be attributable to [Champion’s] job, would it not?
“A. If that was causing it. Again, I just—
“Q. You just testified that it could make it happen quicker?
“A. Sure. You know getting up and down off the toilet can do it. Bending over and brushing your teeth could do it. I don’t think that walking on concrete and going up and down stairs is going to contribute significantly to disk degeneration. It might aggravate your symptoms ... but I don’t think it’s going to do any damage or cause any more harm.
“Q. ... Is [the L5-S1 injury] a separate injury that was caused — that was exacerbated — an injury in essence because it was exacerbated by his work?
“A. No.
“A. ... [Champion] can also have degeneration of two or three more disks within the next few years. You could go back and attribute that to. everyday work that he’s done over the last few years. So yes, him working contributed to the degeneration, just like him not working and walking around and being in a normal lifestyle....
“Q. But your testimony is that it wouldn’t increase because of those things that were part of his job?
“A. That’s correct.
“Q. But you can’t testify for sure? You testified before that you didn’t know.
“A. I think it’s more likely than not that it wouldn’t. And from the 15 years of experience I have with spine problems, I would not attribute it to that.”

Dr. Harvey first treated Champion in April 2000 and treated him periodically in 2001 and 2003. Dr. Harvey testified that Champion had complained that stooping, bending, and kneeling at work had aggravated his back. She testified that Champion has “some diffuse degenerative disease that would be difficult to say ... was from the job or from natural progression.” Dr. Harvey opined that Champion’s job “could” make his degeneration “come on a little faster.”

On May 17, 2001, Champion filed a workers’ compensation claim against Ma-dix seeking disability benefits for several alleged work-related injuries, including injuries to his back. Following a bench trial on December 17, 2003, the trial court entered a judgment on May 14, 2004. The judgment contained the following pertinent findings of fact:

“[Champion] suffered two injuries to his lower back while working within the line and scope of his employment.
“Champion received on-the-job injuries, both exacerbating the 1994 injury and also a new injury in the line and scope of his employment as an employee of Ma-dix, which either injury, by itself, was proven to render Champion totally disabled and therefore both combined rendered totally and permanently disability, over time which rendered him disabled on April 1, 2000.
“It appears clear and convincing that the totality of all medical evidence present along with the testimony of [Champion] that [Champion] did sustain new on-the-job injuries that exacerbated his fully repaired L4-5 prior injury and new injuries to the L5-S1 parts of his back which has caused Champion to in fact be permanently and totally disabled.”

On appeal, Madix argues, among other things, that the two cumulative-physical-stress injuries to Champion’s back at L4-5 and L5-S1, respectively, were not caused by his employment with Madix.

“In a workers’ compensation case, the Court of Civil Appeals reviews the ‘standard of proof ... and other legal issues ■without a presumption of correctness.’ § 25-5-81(e)(l), Ala.Code 1975. A trial court’s judgment in a workers’ compensation case based on pure findings of fact will not be reversed if it is' supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).

Injuries resulting from gradual deterioration or cumulative physical stress, as in the present case, are “compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee’s employment.” § 25 — 5—81(c), Ala.Code 1975. Section 25-5-81(e) defines “clear and convincing” evidence as

“evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

To establish that a cumulative-physical-stress injury is compensable under the Workers’ Compensation Act, the employee must establish both legal and medical causation by clear and convincing evidence. Valtex, Inc. v. Brown, 897 So.2d 332, 334 (Ala.Civ.App.2004); Safeco Ins. Co. v. Blackmon, 851 So.2d 532 (Ala.Civ.App.2002); and § 25-5-81(e), Ala.Code 1975. To establish legal causation, the employee must prove that “the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 267 (Ala.1996). To establish medical causation, the employee must prove that the danger or risk to which the employee was exposed “ ‘was in fact [a] contributing cause of the injury’ ” for which benefits are sought. Id. at 269 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 732 (Civ.1975)).

“ ‘[I]t is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test [for medical causation] finds its application.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003)(quoting Ex parte Price, 555 So.2d 1060, 1063 (Ala.1989))(em-phasis omitted). Considering “the overall substance and effect of the whole of the evidence,” we cannot say that there is clear and convincing evidence of medical causation in this case. Although Dr. Faulkner testified that it was “possible” that Champion’s work activities caused or contributed to the degeneration of his disks, he testified that it was more likely than not that they did not cause or contribute to that degeneration. Although Dr. Harvey testified that Champion’s work activities “could” have accelerated the degeneration of Champion’s disks, she testified that it “would be difficult to say” whether his disk degeneration was attributable to his work activities or to the natural progression of the degenerative disease.

“It is a well established principle that evidence presented by a workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to ‘guess’ the employer into liability.” Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989)(citing Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269, 272 (Civ.1973)). Although Champion’s testimony implies that his employment was a contributing factor to his injuries, the testimony of the doctors established no more than a “possibility” that his employment contributed to his injuries. Moreover, Champion testified that the back pain from his 1994 injury, a separate injury from the two injuries in dispute here, never completely dissipated. He also testified that numerous events unrelated to work had caused him back pain during the years after his back surgery in 1995. Given the totality of the evidence, we conclude that Champion did not prove medical causation by clear and convincing evidence.

Conclusion

Accordingly, we reverse the trial court’s judgment, and we remand the case to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and PITTMAN, J., concur.

THOMPSON and MURDOCK, JJ„ concur in the result, without writing.


author: THOMPSON, Judge.

text:
    LAMAR INTERNATIONAL, INC. v. ATLANTIC THREAD AND SUPPLY COMPANY, INC.
    2040141.
    Court of Civil Appeals of Alabama.
    Sept. 9, 2005.
    Rehearing Denied Oct. 28, 2005.

      Donald E. Blankenship of Blankenship & Company, Birmingham, for appellant.
    Raymond D. Waldrop, Jr., and Bobbi J. Weeks, Huntsville, for appellee.

      . The only pleadings that Lamar had filed with the trial court at the time of the filing of the June 3, 2004, motion were its notice of appeal from the district court's judgment and its motion in opposition to Atlantic Thread's motion for a summary judgment. We note that Rule 13®, Ala. R. Civ. P., sets forth the procedure for a defendant to file a counterclaim in an action that it has appealed from the district court to the circuit court for a trial de novo.

   THOMPSON, Judge.

Atlantic Thread and Supply Company, Inc. (“Atlantic Thread”), sued Lamar International, Inc. (“Lamar”), in the Madison District Court (“the district court”) alleging' a breach of contract and seeking to recover the purchase price of thread supplies that it had sold and delivered to Lamar. The case was tried, and on March 4, 2004, the district court entered a judgment in favor of Atlantic Thread'in the amount of $4,336.06, plus court costs. Lamar timely appealed to the Madison Circuit Court (“the trial court”).

Atlantic Thread filed a, motion for a summary judgment with the trial court; Lamar- filed a motion in opposition to Atlantic Thread’s summary-judgment motion. On June 1, 2004, the trial court entered a summary judgment in favor of Atlantic Thread in the amount of $4,967.53, plus court costs; that summary judgment stated, in part:

• " “[Atlantic Thread’s mjotion for [s]um-mary judgment was properly filed with a narrative summary of undisputed facts, with a detailed affidavit of the comptroller of Atlantic Thread ..., with supporting documentation showing all transactions between these parties giving rise to the claim for money damages owed by [Lamar] to [Atlantic Thread].
“In opposition to [Atlantic Thread’s m]otion for a [s]ummary judgment, [Lamar] ... [submitted] an affidavit of ... [the president of Lamar ..., wherein he essentially states only that no monies are owed.
“[Lamar’s] opposition contains no documentation, no evidence of payments, and no evidence of the shipment of returned goods.
“Therefore, the Court concludes that [Atlantic Thread’s] summary-judgment motion was not adequately opposed by [Lamar] in that [Lamar] failed to present substantial evidence in opposition to [Atlantic Thread’s m]otion for [s]um-mary judgment.”

On June 3, 2004, two days after the trial court had entered the summary judgment in favor of Atlantic Thread, Lamar filed a motion, pursuant to Rule 15, Ala. R. Civ. P., for leave to amend its pleadings to add a counterclaim alleging fraud; in that motion, Lamar did not make any reference to the summary judgment. On June 8, 2004, the trial court entered an order denying' Lamar’s June 3, 2004, motion; that order reáds: “Denied. Summary Judgment entered for [Atlantic Thread] on June 1, 2004.”

On July 1, 2004, Lamar filed a “motion to set aside, amend, or reconsider” the summary judgment and the June 8, 2004, order; Lamar purported to file that motion pursuant to Rule 59(e), Ala. R. Civ. P. In that motion, Lamar conceded that the summary judgment was proper as to Atlantic Thread’s breach-of-contract claim. However, Lamar requested that the trial court set aside the summary judgment and the June 8, 2004, order and allow Lamar to file the counterclaim alleging fraud, and that the trial court grant a partial summary judgment for Atlantic Thread on the breach-of-contract claim.

After the trial court heard oral argument, it entered an order on September 27, 2004, denying Lamar’s July 1, 2004, motion. Lamar filed a notice of appeal on November 5, 2004.

Lamar’s sole contention on appeal is that the trial court abused its discretion in declining to set aside the summary judgment for the limited purpose of allowing Lamar to file the fraud counterclaim. Although neither of the parties has addressed the issue, this court must determine whether it has jurisdiction over this appeal. As we have stated,

“[j]urisdictional matters are of such importance that a court may take notice of them ex mero motu. Nichols v. Ingram Plumbing, 710 So.2d 454 (Ala.Civ.App.1998). ‘ “The timely filing of a notice of appeal is a jurisdictional act.” ’ Overy v. Murphy, 827 So.2d 804, 805 (Ala.Civ.App.2001) (quoting Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985)).”

McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004).

In Morris v. Merchants National Bank of Mobile, 359 So.2d 371 (Ala.1978), the trial court entered a summary judgment in favor of Merchants National Bank on May 12, 1977. On June 10, 1977, Morris filed a motion to set aside the summary judgment, seeking the trial court’s permission to file an amended complaint. The trial court denied that motion on August 9, 1977. On September 15, 1977, Morris filed a motion seeking reconsideration of the entry of the summary judgment and the order denying his motion to set aside the summary judgment. On September 20,1997, the trial court denied that motion, and on September 22, 1977, Morris filed a notice of appeal. See generally, 359 So.2d at 372-73.

Our supreme court dismissed the appeal as being untimely. Morris v. Merchants Nat'l Bank of Mobile, 359 So.2d at 374. In doing so, our supreme court reasoned and held, in relevant part:

“[A] proper [postjudgment] motion ... filed under the authority of Rule 59(e) will extend the time for filing [a] notice of appeal, even though th[at] motion ... follows the grant of a summary judgment. Papastefan v. B. & L. Construction Co., Inc., Ala., 356 So.2d 158 (1978).... Examination of the post-trial pleadings [i.e., the postjudgment motions] reveals that in manner and form their purpose was either to file another amended complaint or to obtain the trial court’s consent to file another amended complaint. They were not designed to have the trial court reconsider the evidence on which the summary judgment was based.
“Because the post-trial motions of plaintiffs did not have the effect of extending the time for filing notice of appeal, that time began to run from the date of the summary judgment, or May 12, 1977. Forty-two days from that date would have been June 23, 1977. Thus the plaintiffs’ notice of appeal filed on September 22, 1977[,] was too late. Timely filing of the notice of appeal is jurisdictional. Rule 3, [Ala. R.App. P.]”

Morris v. Merchants Nat’l Bank of Mobile, 359 So.2d at 373-74 (emphasis added).

In the instant case, Lamar conceded in its July 1, 2004, motion that the summary judgment in favor of Atlantic Thread as to the breach-of-contract claim was proper. In both its June 3, 2004, motion and its July 1, 2004, motion, Lamar sought permission to amend its pleadings to file the fraud counterclaim; Lamar did not seek reconsideration of the evidence upon which the summary judgment was based. In accordance with Morris v. Merchants National Bank of Mobile, supra, we must hold that neither of Lamar’s motions filed after the entry of the summary judgment was a “proper” Rule 59(e) motion; therefore, neither of those motions extended the time for appeal. Thus, the time for filing the notice of appeal began to run from the date of the entry of the summary judgment, which was June 1, 2004. Forty-two days from that date would have been July 13, 2004. Therefore, Lamar’s notice of appeal filed on November 5, 2004, was untimely. The timely filing of a notice of appeal is jurisdictional, and we must dismiss this appeal as being untimely. Rule 2(a)(1), Ala. R.App. P.; McMurphy v. East Bay Clothiers, supra; and Morris v. Merchants Nat’l Bank of Mobile, supra.

APPEAL DISMISSED.

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

      . The supreme court stated that the order denying that motion was entered on August 9, 1977, and that it was filed on August 16, 1977.