author: STUART, Justice.

text:
    Cynthia TELL, as dependent widow of Donnie Lee Zeigler, deceased v. TEREX CORPORATION and Terex Equipment Limited.
    1051128.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      James A. Harris III and Nicole Mapp Hardee of Harris & Harris, LLP, Birmingham, for appellant.
    W. Dudley Motlow, Jr., and W. Perry Webb of Porterfield, Harper, Mills & Mot-low, P.A., Birmingham, for appellees.
   STUART, Justice.

Cynthia Tell, as dependent widow of Donnie Lee Zeigler, deceased, appeals from a summary judgment entered in favor of Terex Corporation and Terex Equipment Limited (“TEL”) (hereinafter Terex Corporation and TEL are sometimes referred to collectively as “Terex”), on Tell’s claims asserted under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). Tell also challenges several discovery rulings made by the trial court. We reverse and remand.

Facts

Beginning in March 2003, Donnie Lee Zeigler was employed by Elmore Sand & Gravel, Inc., as a haul-truck driver. Zeig-ler was assigned to drive a 25-ton, articulated off-road haul dumptruck manufactured by Terex in 2002 (“the dumptruck”). As part of his daily duties, Zeigler was to inspect the dumptruck before and after he finished his shift to check for various problems, including problems with the brake-fluid level.

The dumptruck had been purchased by Cowin Equipment Company, Inc., another defendant in this action, and leased to Elmore Sand & Gravel on April 9, 2002. Cowin Equipment retained responsibility for servicing and repairing the dumptruck under the terms of the Terex warranty.

On December 20, 2003, Zeigler was working at Elmore Sand & Gravel. About an hour after his shift began, Zeigler radioed Derrell Sanders, another driver working for Elmore Sand & Gravel, and reported that the brake light on the dumptruck was on and that he was going to check his brakes.

About an hour after Zeigler’s call, Sanders drove around to Zeigler’s dumptruck and saw Zeigler trapped under the bed of the dumptruck, which was in the lowered position. Sanders immediately jumped into the cab of the dumptruck to raise the bed and free Zeigler. Zeigler was taken to the hospital, where he subsequently died from his injuries.

Cynthia Tell, as Zeigler’s dependent widow, sued Terex, Cowin Equipment Company, and others; Tell asserted AEMLD claims against Terex. Terex moved for a summary judgment, asserting that Zeigler had been contributorily negligent and had assumed the risk of injury by positioning himself under the bed of the dumptruck while it was raised and by positioning himself under the raised bed of the dumptruck without first putting the body-safety prop bar in place. Terex presented evidence indicating that Zeigler had been instructed never to get under the raised bed of the dumptruck for any reason. Te-rex also presented evidence indicating that Zeigler had been instructed to never get under the raised bed of the dumptruck without first employing the body-safety prop bar. The evidence also established that it was not necessary for drivers to get under the bed of the dumptruck to refill the brake-fluid reservoir.

Tell filed a motion seeking to strike certain materials filed by Terex in support of its summary-judgment motion; Tell argued that those materials were inadmissible and, therefore, that they should not be considered by the trial court. Tell also filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., claiming that she could not properly respond to Terex’s summary-judgment motion because of outstanding discovery issues and that the trial court should delay its consideration of the pending summary-judgment motion pending further discovery.

The trial court denied Tell’s motion to continue the pending summary-judgment motion, filed pursuant to Rule 56(f), Ala. R. Civ. P., and her motion to strike certain evidentiary materials submitted by Terex. The trial court then entered a summary judgment for Terex without providing a detailed statement of its reasoning. However, in its order, the trial court cited several cases that recognized that the contributory negligence of the injured party was a complete bar to recovery under the AEMLD. Because Tell’s claims against Cowin Equipment Company and other defendants remained pending, the trial court certified the summary-judgment order for interlocutory appeal, pursuant to Rule 54, Ala. R. Civ. P.

Tell appealed, asserting the following arguments:

“I. The trial court erred in finding that Zeigler was contributorily negligent.
“II. The trial court erred in denying Tell’s motion to strike Terex’s inadmissible evidence.
“III. The trial court erred in denying both Teh’s motions to compel discovery, and Teh’s motion to deny or continue summary judgment pursuant to Rule 56(f) [, Ala. R. Civ. PJ.”
Standard of Review
“A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, [Ala. R. Civ. PJ. In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmov-ant and will resolve all reasonable doubts against the movant.”

Bean v. BIC Corp., 597 So.2d 1350, 1351 (Ala.1992).

Analysis

I. Whether the trial court erred in finding that Zeigler was contribu-torily negligent.

Teh aheges that the trial court erred in relying on Zeigler’s alleged contributory negligence as the basis for entering the summary judgment. In Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala.2002), this Court stated the following principles concerning the application of contributory negligence at the summary-judgment stage of an action:

“A plaintiff cannot recover in a negligence action where the plaintiffs own negligence is shown to have proximately contributed to his damage, notwithstanding a showing of negligence on the part of the defendant. Likewise, a plaintiffs contributory negligence will preclude recovery in an AEMLD action. The question of contributory negligence is normally one for the jury. However, where the facts are such that ah reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law.
“To establish contributory negligence as a matter of law, a defendant seeking a summary judgment must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiffs conscious appreciation of danger.”

840 So.2d at 860-61.

A. Evidence and Arguments Presented by Terex

In its motion for a summary judgment, Terex argued, among other things, that Zeigler was contributorily negligent and that he assumed the risk of injury when he put himself underneath the bed of the dumptruck, and particularly when he put himself underneath the bed of the dump-truck without first putting in place the body-safety prop.

In support of that motion, Terex presented the following evidence:

Terex offered into evidence a copy of a safety-and-maintenance manual that, Te-rex asserted, was provided with the dump-truck. This manual instructed the user: “Do not work under or near an unblocked or unsupported body. Always use the body safety prop.” Terex offered the deposition testimony and affidavit testimony of David Gaddy, the general manager of Elmore Sand & Gravel during the time that Zeigler was employed there. Gaddy testified that he had orally instructed the employees at Elmore Sand & Gravel, among other things, to not “get up under a dump body.” Gaddy also testified that during some of those conversations with employees he discussed the use of the body-safety prop. Gaddy testified that drivers had no need to use the body-safety prop because they had no reason to be under the bed of a dumptruck; according to Gaddy, drivers were not allowed to work on the trucks and were instructed to contact a mechanic if they had any mechanical problem with the truck. However, Gaddy admitted that, after Zeigler’s death, he learned that the mechanics had allowed the drivers to add brake fluid to the reservoir of the dumptruck, if necessary. Gaddy also testified that he discussed with the drivers how to raise the body-safety prop; Gaddy testified that it “takes less than 2 seconds” to employ the body-safety prop.

Additionally, Terex offered the deposition testimony of Billy Joe Gibbons, an employee of Cowin Equipment Company, the company responsible for servicing and repairing the dumptruck. Gibbons testified that the body-safety prop could be raised with one hand and that once the body-safety prop was in place, the bed of the dumptruck could not be lowered. Gibbons also testified that brake fluid could be added to the brake-fluid reservoir without being beneath the bed of the dumptruck, i.e., that it was possible to stand on the ground next to the dumptruck to add brake fluid to the reservoir.

Terex also offered the deposition and affidavit testimony of Mark Montgomery, who worked as the safety director for El-more Sand & Gravel. Montgomery also testified that the drivers or operators are instructed not to attempt to repair or to work on the dumptrucks; they are instructed to call a mechanic immediately if there are problems with the dumptrucks. Montgomery also testified that as Zeigler was leaving for the day on the day before his accident, Montgomery asked him if everything was okay with Zeigler’s truck, to which Zeigler replied “yeah, yeah, yeah.” Montgomery testified that he regularly asked the operators this question as they were leaving for the day.

Terex also offered the deposition testimony of Billy Stanley, the president of Elmore Sand & Gravel. Stanley testified that the drivers of the dumptrucks were required to perform an inspection of their trucks both before and after their shifts and to complete a corresponding inspection report. After the accident, Stanley reviewed the reports that had been completed by Zeigler in the days preceding his accident and noted that Zeigler had not reported any problems with the brakes on the dumptruck. Stanley also testified that the drivers are trained to contact the maintenance department at Elmore Sand & Gravel immediately if they discover a problem with the trucks or if a problem develops during their shift.

In support of its motion for a summary judgment, Terex also submitted the deposition testimony of Dupree Harvey, the vice president of Elmore Sand & Gravel. Harvey testified that he had a conversation with Zeigler in May 2003 — when Zeig-ler was still a relatively new employee— concerning the dangers of getting under the raised bed of a dumptruck. Harvey testified that he specifically asked Zeigler how he would check his brake fluid on the dumptruck. Harvey testified:

“I don’t know why but something just told me to stop and talk to him about— because he was a new hire — about telling him how to check his brake fluid. So I went up to [Zeigler] and I said, ‘[Zeigler,] ... show me how you check your brake fluid.’ So he went around on the passenger side and took off the cap, pointed to it or he took it off .... and so I said to [Zeigler], I said, ‘So you’re telling me you don’t have to get underneath the bed of the truck to check your brake fluid.’ He says, ‘No, you just stand right here on the ground. It’s about chest high. And you can reach it right here and check the brake fluid.’ And I said, ‘Well, good answer. That’s what I was looking for.’ And I said, ‘So tell me again, you don’t have to get underneath the bed of the truck to check the brake fluid.’ And he said, ‘That’s correct.’ ”

Harvey also testified that he told Zeigler “don’t ever get underneath the bed of the truck .... period, no questions asked.” Harvey did not know if Zeigler had ever received training on how to use the body-safety prop because “I just know he was told never to get underneath the bed of a truck, under no circumstances.” Harvey added that it was unnecessary to raise the bed of the dumptruck to check the brake fluid or to do any of the items on the inspection checklist Zeigler was required to do. Harvey testified that if Zeigler had any problems with his truck, Zeigler was supposed to report them to Harvey; according to Harvey, Zeigler had not reported any problems to him.

Terex argued that, based on this evidence, Zeigler was contributorily negligent and that, therefore, Terex was entitled to a summary judgment as to Tell’s AEMLD claims asserted against it.

B. Tell’s Arguments in Opposition to Terex’s Motion for a Summary Judgment

Tell argues that Terex was not entitled to a summary judgment on her AEMLD claims. As the nonmovant at the summary-judgment stage, Tell argues that the evidence, when construed in her favor, as it must be, Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991), indicates that the dumptruck malfunctioned in some respect. She also argues that there are multiple safer, alternative designs for the dumptruck, which would have prevented the malfunction from occurring or would have avoided the need for Zeigler to have been working in the path of the bed of the dumptruck. Additionally, Tell argues that the evidence does not establish that Zeigler put himself in danger’s way and does not establish that Zeigler consciously appreciated the danger he faced from his position in relation to the raised bed of the dumptruck at the moment the accident occurred, both of which are required to establish contributory negligence as a matter of law.

Tell argues that the evidence establishes the following in support of her argument that the dumptruck malfunctioned and that Zeigler was not contributorily negligent: that the dumptruck being driven by Zeig-ler suffered recurring brake problems; that on the day Zeigler was killed, he was attempting to “check his brakes” by refilling the brake-fluid reservoir and resetting the brake-overstroke sensor, which required him to be positioned under the raised bed of the dumptruck; that Zeigler left the raised bed of the dumptruck in the “hold” position when he went under the dumptruck bed and that in the “hold” position the bed of the dumptruck should have remained in the same position as Zeigler had left it; and, that, for some unexplained reason, the bed of the dumptruck collapsed or lowered itself while Zeigler was beneath the dumptruck preparing to “check on the brakes.” Tell argues that this evidence leads to the inference that the dumptruck-bed control malfunctioned in some way because it did not remain in the “hold” position. Tell also argues that because there were no other reported incidents of the bed of the dumptruck lowering itself when it had been left in the hold position, Zeigler could not have appreciated the danger he faced at the moment of his death.

Tell also points out that, some time after Zeigler’s accident, a mechanic employed with Cowin Equipment Company, the company responsible for maintaining and servicing the dumptruck, tested a “hydraulic-control valve” from the dumptruck operated by Zeigler and found it to be defective. Because of this defect, the hydraulic-control valve was removed from the dump-truck involved in this incident a year after Zeigler’s accident. Tell asserts that the existence of the defective hydraulic-control valve supports her claim that the dump-truck malfunctioned on the day of Zeigler’s accident.

Tell also relies on her expert’s opinion that the design of the dumptruck allowed employees “poor access” to the hydraulie-brake-fluid reservoir and to the brake-ov-erstroke sensor. Additionally, Tell’s expert testified that the design of the body-safety prop on the Terex dumptruck was “defective and dangerous” because, he said, it

“requires the operator to place his arm or entire body under the dump bed of the truck and to reach from a dangerous position standing between the tires in order to set it. It also cannot be set unless the dump bed is almost completely raised, making an operator vulnerable if the dump bed is not completely raised and rendering it completely ineffective in such an instance.”

Tell’s expert testified that the dumptruck should have been designed so that the hydraulic-brake-fluid reservoir, the brake-overstroke sensor, and the body-safety prop were in a location in which it would be safer to maintain or use them.

Additionally, Tell points out that witnesses reported seeing an unopened can of brake fluid next to the dumptruck where Zeigler was found. Tell argues that, because the body-safety prop is located underneath the bed of the dumptruck, and because Zeigler was found directly on top of the body-safety prop and an unopened can of brake fluid was found next to the truck, it is possible that Zeigler was attempting to set the body-safety prop so that he could “check the brakes” when the bed controls malfunctioned, causing the bed of the dumptruck to come down unexpectedly on Zeigler.

C. Analysis

The evidentiary showing required to obtain a summary judgment on the basis of Zeigler’s contributory negligence is very demanding. See Hannah v. Gregg, Bland & Berry, 840 So.2d at 860-61 (recognizing that, in order to be entitled to a judgment as a matter of law based on contributory negligence at the summary-judgment stage of an action, the movant must establish by undisputed evidence that the plaintiff consciously appreciated the danger he faced at the time of his death). However, the record before us does not establish by undisputed evidence that Zeigler consciously appreciated the danger he faced at the moment of his death. As Tell argued, there are possible explanations for the accident other than that Zeigler was contributorily negligent. The evidence and theories presented by Tell are sufficient to create a genuine issue of material fact as to whether Zeigler was contributorily negligent in placing himself where he could be injured by the unexpected lowering of the bed of the dump-truck. Therefore, the trial court improperly concluded that Terex was entitled to a judgment as a matter of law. We reverse the summary judgment in favor of Terex.

II. Whether the tvial court erred in denying Tell’s motion to strike evidence offered by Terex that Tell says is inadmissible.

Tell next asserts that the trial court erred in denying her motion to strike certain exhibits relied upon by Terex in support of its summary-judgment motion, more specifically photographs of warning stickers purportedly affixed to the dump-truck operated by Zeigler the day of his accident and affidavits of various employees submitted by codefendant Dupree Harvey in support of his summary-judgment motion and later adopted by Terex in support of its summary-judgment motion. The trial court did not state any reasons for its denial of Tell’s motion to strike.

Because we are reversing the summary judgment in favor of Terex, the issue whether the affidavits and the photographs were properly considered as evidence in support of Terex’s summary-judgment motion is now moot. However, we note that in order for the photographs to be properly considered at trial, they, of course, must be properly authenticated and relevant to the issue under consideration. See Rule 901, Ala. R. Evid. (addressing the requirement that evidence be authenticated and identified); Ware v. State, 949 So.2d 169, 181-82 (Ala.Crim.App.2006) (photographs taken some 14 months after defendant’s arrest were inadmissible because they were not properly authenticated; those same photographs also were not relevant because they were taken at a time other than the time of the defendant’s arrest); and Vandiver v. State, 37 Ala.App. 526, 73 So.2d 566 (Ala.Crim.App.1953) (photographs taken several weeks after the occurrence at issue were inadmissible to establish how the scene looked at the time of the occurrence).

III. Whether the trial court erred in denying Tell’s motions to compel discovery and Tell’s motion to deny or to continue the summary-judgment motion pursuant to Rule 56(f), Ala. R. Civ. P.

Tell next challenges the trial court’s ruling on her motion to compel discovery and her motion to continue the hearing on the summary-judgment motion. Before the ruling on the summary-judgment motion, Tell filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., asking the trial court to continue the hearing on the summary-judgment motion or, alternatively, to deny Terex’s summary-judgment motion. In support of that motion, Tell’s counsel submitted an affidavit attesting that, although he had diligently pursued discovery of all relevant information, he could not adequately respond to Terex’s summary-judgment motion for two reasons: (1) Terex had failed to produce a witness who was knowledgeable of the design of the dumptruck; and (2) counsel had recently learned that a defective hydraulic-control valve that had been removed from the dumptruck and that Tell had requested to examine had been discarded and was unavailable. Tell’s counsel also attested that, in connection with a witness deposed pursuant to the Rule 30(b)(6), Ala. R. Civ. P., a motion to compel the deposition of the proper witness remained outstanding. Additionally, Tell’s counsel attested that, in connection with the hydraulic-control valve, he needed

“additional discovery to: (1) determine facts relevant to how the part was misplaced, lost, or discarded, and (2) conduct an examination of all witnesses, from Cowin [Equipment Company] or otherwise, who inspected the part and found it to be defective. Critical to this analysis will be the nature of the defect and its implications for the accident causing ... Zeigler’s death.”

In its summary-judgment order, the trial court expressly denied Tell’s Rule 56(f), Ala. R. Civ. P., motion to continue the hearing on the summary-judgment motion pending additional discovery and the trial court implicitly denied her motion to compel discovery from Terex. On appeal, Tell argues that the evidence sought by these motions “bear[s] on Zeigler’s possible appreciation of the danger at the time of his accident, and will further negate any inference of contributory negligence.” (Tell’s brief at p. 62.) Thus, she asserts, the trial court erred in denying her motions.

We agree with Tell that the information she seeks is highly relevant to her claims and defenses. We also note that Tell’s counsel was not dilatory in requesting the information made the basis of the Rule 56(f), Ala. R. Civ. P., motion. Throughout this litigation, Tell has requested information regarding the overall design of the dumptruck and, more specifically, information regarding the design of the electrical and hydraulic systems used in the dump-truck. Even after multiple motions to compel, Terex either failed to respond or inadequately responded to these requests.

Additionally, Tell filed a deposition notice pursuant to Rule 30(b)(6), Ala. R. Civ. P., requesting to take the deposition of a representative with knowledge of the design of the dumptruck; the representative produced by Terex pursuant to Rule 30(b)(6), Ala. R. Civ. P., however, was not familiar with the requested areas of inquiry and could not offer any information as to the design of the dumptruck. Tell requested the name of an individual with this knowledge early in the litigation, and, although Tell filed multiple motions to compel, Terex did not comply with the requests.

Additionally, Tell asserts that she learned shortly after Terex’s summary-judgment motion had been filed that the defective hydraulic-control valve had been lost. Promptly upon learning this information, Tell’s counsel filed the motion to continue the summary-judgment motion, pursuant to Rule 56(f), Ala. R. Civ. P., so that she could conduct discovery related to the circumstances of the disappearance of the valve and the defect found to exist in the hydraulic-control valve.

We further note that Tell requested that the summary-judgment motion be continued for an additional 90 days so that she could obtain as much information as possible about the missing valve. According to the scheduling order in place at the time of this request, the requested 90-day period for additional discovery would not have delayed the trial or impacted other deadlines that had been set by the trial court.

Rule 56(f), Ala. R. Civ. P., states:

“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 affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

Additionally, this Court has recognized that

“if it can be ascertained that the information sought by pending interrogate-ries and requests for production of documents is crucial to the nonmoving party’s case, it is error to enter a summary judgment before the party moving for summary judgment has produced the documents and answers to the interrogatories.”

Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769, 771 (Ala.1994). See also Reeves v. Porter, 521 So.2d 963 (Ala.1988).

Because the information sought by Tell is crucial to her claims and defenses, the trial court erred in entering a summary judgment in favor of Terex without allowing Tell additional time for discovery. Therefore, the trial court erred to the extent it denied Tell’s motion, filed pursuant to Rule 56(f), Ala. R. Civ. P., to continue the hearing on the summary-judgment motion and to the extent it denied Tell’s motion to compel additional discovery regarding the overall design of the dump-truck, the electrical and hydraulic systems used in the dumptruck, and the circumstances surrounding the missing hydraulic-control valve that was removed from the dumptruck.

We reverse the summary judgment in favor of Terex and TEL. We note that the trial court erred in denying Tell’s motion filed pursuant to Rule 56(f), Ala. R. Civ. P., to continue the summary-judgment hearing and to continue discovery. We remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BOLIN, J., concurs in the result.

WOODALL, J., concurs in part and expresses no opinion in part.

SEE, J., dissents.

WOODALL, Justice (concurring in part and expressing no opinion in part).

I concur in the majority opinion insofar as it reverses the summary judgment entered in favor of Terex and TEL. I express no opinion concerning the other issues discussed in that opinion, because, in my judgment, those issues are rendered moot by our reversal of the summary judgment.

      . Throughout the proceedings in the trial court and the appeal in this Court, Terex Corporation and TEL were represented jointly, filed joint pleadings, and asserted identical arguments.

      . As part of Tell's discovery efforts, she requested to examine this hydraulic-control valve. However, shortly before Terex's summary-judgment motion was filed, Tell learned that the valve had been lost or discarded and was not available for examination by Tell.

      . Our listing here is not intended to expand or limit the scope of Tell's requested discovery.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Robert RESTER v. McWANE, INC., et al.
    1050787.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      Clinton C. Carter of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.
    Mitchell G. Allen and Stuart D. Roberts of Maynard, Cooper & Gale, P.C., Birmingham, for appellees.
   SEE, Justice.

Facts and Procedural History

Robert Rester worked as a millwright at a foundry owned and operated by McWane, Inc., and its subsidiary, Union Foundry Company, for 24 years until his employment was terminated on September 19, 2002. During his employment, Rester witnessed numerous safety and environmental hazards, including the lack of doors on control panels, exposed wires in the ceilings, the lack of safety switches on overhead cranes, and the lack of belt guards on conveyers. Rester reported these violations to his direct supervisor, John Norris, and also to Norris’s superior, John Ballion.

In May and June 2002, Rester took a medical leave of absence. During this time he was interviewed by James San-dler, a reporter for the New York Times, presumably about safety violations at the foundry at which Rester worked. Rester was fired when he returned to work after his medical leave of absence. After Rester was fired, a corporate official for McWane, Jim Proctor, set up a meeting with Ballion and with McWane’s attorney “to rectify the situation.” Following the meeting, McWane gave Rester the option of returning to work at a different location. Rester was then interviewed by a reporter for the Canadian Broadcasting Company about the numerous safety and environmental hazards at McWane. After the interview, Rester left several messages with Proctor regarding the option of returning to work, but Proctor never responded.

On August 15, 2003, Rester sued McWane in federal court alleging three counts of wrongful termination: disability discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a); age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.; and employment discrimination in violation of the Alabama Age Discrimination in Employment Act, Ala.Code 1975, § 25-1-20 et seq. In a second amended complaint, filed on February 10, 2005, Res-ter alleged three additional counts against McWane: violation of the False Claims Act, 31 U.S.C. § 3729(a)(7); violation of the False Claims Act Whistleblower Protection Provision, 31 U.S.C. § 3730(h); and wrongful termination of employment. Apart from his Alabama Age Discrimination in Employment Act claim, Rester’s sole mention of state law in his complaint in the federal action was that “[o]n or about September 19, 2002, [Rester] was discharged from his employment as a result of his refusal to violate federal and state law.” Apparently, two years later the federal court dismissed the federal claims with prejudice and dismissed the state-law claims without prejudice. Res-ter then filed an action in the Calhoun Circuit Court against McWane, Union Foundry, and two individual defendants, asserting state-law claims. The trial court granted the defendants’ Rule 12(b)(6), Ala. R. Civ. P., motion and dismissed the action on the basis that the statute of limitations had expired. Rester appealed.

The applicable statute of limitations for Rester’s state-law claims is two years. Rester now seeks to bring his state-court action three years after the statute of limitations began to run. Rester contends that his claims are nonetheless timely because, he argues, under the theory of pendent jurisdiction the statute of limitations for those claims was tolled when they were pending in the federal court.

Issue

The issue in this case is whether, under 28 U.S.C. § 1367, the statute of limitations for Rester’s state-law claims was tolled while his claims were pending in the federal court.

Standard of Review

The appropriate standard of review of a trial court’s grant of a motion to dismiss under Rule 12(b)(6) is

“ ‘ “whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief’ ’ ”

EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 507 (Ala.2005) (quoting Beckerle v. Moore, 909 So.2d 185, 187 (Ala.2005), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)) (citations omitted).

Analysis

Rester alleges four separate counts in his state-court action, each subject to a two-year statute of limitations. He claims (1) wrongful termination in violation of Ala. Code 1975, § 25-5-11.1; (2) unsafe working conditions in violation of Ala.Code 1975, § 25-1-1; (3) the tort of outrage and intentional infliction of emotional distress; and (4) termination of his employment “in violation of public policy.”

Although Rester filed his complaint in the state court nearly a year beyond the two-year statutory deadline for filing such an action, he argues that his action is nonetheless timely because, he argues, the statute of limitations was tolled by the federal pendent-jurisdiction provision, 28 U.S.C. § 1367, when his state-law claims were pending in the federal court. Section 1367 states, in pertinent part:

“(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
“(d) The period of limitations of any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Section 1367(d) thus tolls state-law claims when those same claims are pending in federal court. This Court applied § 1367(d) in Roden v. Wright, 611 So.2d 333 (Ala.1992). Roden filed a § 1983 action in federal court, which gave the federal court pendent jurisdiction over Roden’s state-law claims. The federal court entered a summary judgment as to Roden’s federal claim, thus removing its pendent jurisdiction of Roden’s state-law claims. The federal court dismissed Roden’s state-law claims without prejudice; Roden then sought to revive his state-law claims in the state court. The state trial court dismissed his claims as untimely, including in its calculation the time the state-law claims were pending in the federal court. This Court reversed its judgment, holding that under 28 U.S.C. § 1367(d) the statute of limitations was tolled while the state-law claims were pending in the federal court.

Rester contends that, like Roden, he sought to refile in the state court his state-law claims, which the federal court had dismissed without prejudice. We disagree; Roden is distinguishable from this case. The claims Roden refiled in the state court were the same state-law claims he had brought in the federal court; the claims Rester filed in the state court are distinct from the state-law claim he asserted in the federal court.

Under 28 U.S.C. § 1367(d), the statute of limitations for state-law claims is tolled only when a party seeks to refile in the state court the same state-law claims the party asserted in the federal court. Rester currently avers four counts against the defendants. First, he alleges that he was fired in violation of Ala.Code 1975, § 25-5-11.1, for making safety complaints to his superiors. Second, he alleges that the defendants violated Ala.Code 1975, § 25-1-1, and “undertook to compel [him] to work in an unsafe and/or hazardous work area” and that the defendants “refused to eradicate” the dangerous work conditions, including “electrical cords in water, [lack ofl doors on control panels, [and] exposed ceilings with no insulation,” among other things. Third, Rester states that the defendants intentionally and/or recklessly caused him to suffer emotional distress in that it “compelled or otherwise forced [him] to work in a known hazardous area.” Fourth, he argues that the defendants “cannot and should not be able to terminate [his employment] because he expressed a legitimate and well-founded concern about his health, welfare and safety with respect to his work area in which he was expected or otherwise required to perform his job duties.”

The state-law claims Rester asserted in his complaint in the federal court were that the defendants violated the Alabama Age Discrimination in Employment Act of 1997, Ala.Code § 25-1-20 et seq. and that he was wrongfully terminated “as a result of his refusal to violate federal and state law.” This claim is wholly distinct from the state-law claims he now brings in the state court. None of the four claims upon which Rester now attempts to proceed relates to his refusal to violate state law; on the contrary, each of his current state-law claims involves the defendants’ alleged violation of state law. Because § 1367 makes no allowance for tolling the statute of limitations for state-law claims that are not asserted in the federal action, we hold that the statute of limitations for Rester’s current state-law claims was not tolled, and his action is thus untimely. Miller v. American Int’l Group, Inc., (Ms. No. 3:04-CV-1417-P. May 9, 2005) (N.D.Tex.2005) (not reported in F.Supp.2d) (disallowing the tolling of a claim under § 1367 because the claim “was never pending as a supplemental claim in federal court”).

Conclusion

Because Rester’s action is untimely, “ ‘ “it appears beyond doubt that [Rester] can prove no set of facts in support of the claim that would entitle [him] to relief.” ’ ” EB Investments, 930 So.2d at 507 (quoting Beckerle, 909 So.2d at 187, quoting in turn Nance, 622 So.2d at 299). Thus, we affirm the trial court’s dismissal of Rester’s action under Rule 12(b)(6). Tucker v. Nichols, 431 So.2d 1263, 1265 (“[A]n appellate court ... will affirm the judgment appealed from if supported on any valid legal ground.”).

AFFIRMED.

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

      . Rester asserted in the federal action that he was over 40 years old at the time his employment was terminated.

      . Rester's brief states: “A copy of Judge Propst's March 22, 2005 Order is attached hereto as Exhibit A”; however, no such exhibit is attached to Rester's brief.


author: NABERS, Chief Justice.

text:
    Margaret Melinda HUNDLEY v. J.F. SPANN TIMBER, INC., and Jody Frank Spann.
    1051421.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      John Emory Waddell, Dothan; and Ron Storey, Dothan, for appellant.
    John F. Janecky of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellees.
   NABERS, Chief Justice.

Margaret Melinda Hundley appeals the summary judgment entered in favor of J.F. Spann Timber, Inc. (“Spann Timber”), and Jody Prank Spann in a wrongful-death action she initiated against them following the death of her husband, James Edward Hundley, in an automobile accident. We affirm.

I.

On January 30, 2002, a vehicle driven by James Hundley collided with a logging truck on State Highway 52 in Geneva County. The logging truck was owned by Spann Forestry, Inc., and, at the time of the accident, was being driven by Anthony D. Bradley, an employee of Spann Forestry. Spann Forestry is a sole proprietorship owned by John Wiley Spann, Jody Spann’s brother. James Hundley was severely injured in the accident; he died on March 29, 2002, as a result of the injuries he suffered in the accident.

Before his death, James Hundley and his wife, Margaret Melinda Hundley, sued Spann Forestry in the Houston Circuit Court. The parties reached a settlement in that action, and, on October 22, 2002, the Houston Circuit Court entered an order stating that “[ujpon consideration and agreement of the parties, the above-styled action is hereby dismissed with prejudice as to Spann Forestry, Inc., and each party shall bear their own costs of court.”

On January 30, 2004, Margaret Hundley filed a wrongful-death action in the Houston Circuit Court based on her husband’s death. Among the defendants named in this action were Spann Timber and its owner Jody Frank Spann. In her wrongful-death action, Hundley alleged:

“16. At all times material hereto, and prior to January 30, 2002, and on January 30, 2002, a relationship existed between Jody Frank Spann and/or J.F. Spann Timber, Inc., and John Wiley Spann and/or Spann Forestry, Inc., wherein each business owned and operated by Jody Frank Spann and John Wiley Spann, respectively, were intertwined, related and compatible with each other, with the operation of each business being profitable and to the financial benefit of each of the aforesaid individuals and each aforesaid corporation, including the individual defendant, Jody Frank Spann, and the defendant corporation, J.F. Spann Timber, Inc.
“17. Defendant, Jody Frank Spann and defendant, J.F. Spann Timber, Inc., exercised dominion, control, and authority as such principal over John Wiley Spann and Spann Forestry, Inc., so as to create and cause to exist, a principal-agency and/or master-servant relationship between defendant Jody Frank Spann and/or the defendant, J.F. Spann Timber, Inc., and John Wiley Spann and/or Spann Forestry, Inc., with Jody Frank Spann and his corporation being the principal and John Wiley Spann and his corporation being the servant or agent accordingly.
“18. Defendant, Jody Frank Spann and/or defendant J.F. Spann Timber, Inc., exercised such dominion and control, including financial dominion and control, over John Wiley Spann and Spann Forestry, Inc., for the financial gain of defendant, Jody Frank Spann, and the defendant J.F. Spann Timber, Inc. Jody Frank Spann and/or J.F. Spann Timber, Inc., provided financial support, services, direction, authority, control and direction for John Wiley Spann and/or Spann Forestry, Inc. (owners of the log truck and trailer), in multiple and various ways .... ”

On the motion of Jody Spann and Spann Timber, the case was subsequently transferred to the Geneva Circuit Court. On December 13, 2004, they filed their answer to the complaint, in which they denied that there was “any employer/employee or principal/agent or master/servant or joint venture relationship existing between John Wiley Spann and/or Spann Forestry, Inc., with Jody Frank Spann and/or J.F. Spann Timber, Inc.” On December 28, 2004, Jody Spann and Spann Timber moved for a summary judgment on this same basis. After being granted more time in which to conduct discovery, Hundley filed her response opposing Jody Spann and Spann Timber’s motion for a summary judgment on September 2, 2005. In that motion, she argued that the nature of the business relationship between Spann Forestry and Spann Timber was a question of fact for a jury. Following a hearing, the trial court denied the motion for a summary judgment.

On October 21, 2005, Jody Spann and Spann Timber filed a motion to reconsider and a renewed motion for a summary judgment. In those motions, they again denied any principal-agent or master-servant relationship with Spann Forestry and raised for the first time the additional argument that they were entitled to a summary judgment because the Hundleys’ earlier action against Spann Forestry had been dismissed with prejudice, and, they claimed, “[t]he dismissal of the ‘ageni/serv-ant,’ Spann Forestry, Inc., operates to exonerate the ‘principal/master’ Jody F. Spann and J.F. Spann Timber, Inc.” In conjunction with their motion, Jody Spann and Spann Timber submitted a copy of the order of the Houston Circuit Court dismissing with prejudice the Hundleys’ claims against Spann Forestry.

On January 12, 2006, the trial court entered a summary judgment in favor of Jody Spann and Spann Timber stating that, although it had previously denied their motion on the basis that a question of fact existed as to whether a principal-agent relationship existed, it was now granting the motion based on Jody Spann and Spann Timber’s new argument that the dismissal with prejudice of Spann Forestry in the Hundleys’ first action precluded a later finding of liability against Jody Spann and Spann Timber on the basis of respondeat superior. Hundley promptly moved the trial court to reconsider; however, on April 12, 2006, the trial court denied Hundley’s motion and entered its final order, succinctly stating:

“The court previously denied a motion for summary judgment filed by [Jody Spann and Spann Timber] and held that there was a jury question as to right of control.
“If the case is tried to a jury and the jury found no right of control or no agency, etc., [Jody Spann and Spann Timber] win[ ].
“If the jury finds right of control, agency, etc., [Jody Spann and Spann Timber] still win[] as a result of the dismissal of the Houston County case with prejudice.
“Therefore, the motion for reconsideration is hereby denied.”

Hundley appeals.

II.

The pertinent law governing our review of a summary judgment is as follows:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing 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), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[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 Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004). Moreover:

“A trial court decides a motion for summary judgment upon a consideration of whatever materials are submitted in support of or in opposition to the motion. Ex parte City of Montgomery, 758 So.2d 565 (Ala.1999), and Moore v. Glover, 501 So.2d 1187 (Ala.1986). The trial court cannot consider any facts not of judicial notice except those facts evidenced by materials contained in the trial court record upon submission of the motion for summary judgment. See Moore, supra. Likewise, the trial court cannot be reversed on any ground or argument not presented for or against the motion. MetFuel, Inc. v. Louisiana Well Service Co., 628 So.2d 601 (Ala.1993), and Bevill v. Owen, 364 So.2d 1201 (Ala.1979).
“An appellate court can consider a fact to support or to undermine a summary judgment only to the extent that the record on appeal contains materials from the record before the trial court evidencing that fact at the time of submission of the motion for summary judgment. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991). Likewise, the appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). On the other hand, an appellate court can affirm a summary judgment on any valid argument, regardless of whether the argument was presented to, considered by, or even rejected by the trial court. Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988).”

Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000).

III.

Alfa Life Insurance Corp. v. Jackson, 906 So.2d 143 (Ala.2005), was the only case cited by Jody Spann and Spann Timber in support of their argument that the dismissal of Spann Forestry (the agent) with prejudice in the Hundleys’ first action served to exonerate them (the principal) of any future liability. In Jackson, this Court considered whether the dismissal with prejudice of tort claims against Rickey English, an insurance agent with Afa Life Insurance Corporation, exonerated Afa from vicarious liability for those same torts. We concluded:

“The dismissal with prejudice of the claims alleged against English — the torts of fraud and negligent or wanton failure to procure insurance — constituted an adjudication on the merits to the effect that English was not guilty of committing either of those torts. Therefore, Afa could hardly be guilty of committing those same torts by and through the agency of English and thus could not be vicariously liable for those torts under the doctrine of respondeat superior.
“The plaintiffs cite Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993), USA Petroleum Corp. v. Hines, 770 So.2d 589 (Ala.1999), Daugherty v. M-Earth of Alabama, Inc., 519 So.2d 467 (Ala.1987), and Salter v. A. Fraser Pattillo, Jr., Inc., 519 So.2d 930 (Ala.1988), for the proposition that the dismissal with prejudice of the tort claims against the agent English did not exonerate the principal Afa from vicarious liability for those alleged torts. These four precedents, however, are distinguishable from the case now before us.
“While in each of Cottingham and Hines the trial court, on the plaintiffs motion, dismissed one or more tort claims against the agent and allowed the plaintiff to proceed against the principal, neither case states that the dismissal was with prejudice. For all that appears in either case, the trial court dismissed the tort claim or claims against the agent without prejudice, while in the case now before us the trial court dismissed the tort claims against the agent with prejudice. Athough a dismissal without prejudice does not constitute an adjudication on the merits, Smith v. Union Bank & Trust Co., 653 So.2d 933, 935 (Ala.1995), a dismissal with prejudice does, Hammermill Paper Co. v. Day, 336 So.2d 166, 168 (Ala.1976).
“In Daugherty and Salter the pertinent issue was whether a pro tanto release of an agent from tort claims exonerated the principal from vicarious liability for those alleged torts. Each release expressly reserved the tort claims against the principal. In each case this Court held that it was bound by § 12-21-109, Ala.Code 1975,[] to honor the express reservation of the tort claims against the principal. Because the plaintiffs in the case now before us did not, in any release governed by § 12-21-109, expressly reserve their tort claims against Alfa, those tort claims are not preserved by the holding of Daugherty and Salter, and likewise those two precedents are not affected by the holding exonerating Alfa from the tort claims in the case now before us.
“Thus, we conclude that the dismissal with prejudice of the tort claims against the agent English exonerated the principal Alfa from vicarious liability for those alleged torts and entitled Alfa to a [judgement as a matter of law] on the tort claims.”

Jackson, 906 So.2d at 154-55. Jackson, therefore, establishes that if all tort claims against an agent are dismissed with prejudice, then a subsequent tort claim based on the same facts will not lie against the agent’s principal unless in conjunction with the dismissal with prejudice the parties entered into a settlement agreement that expressly reserved the claimant’s right to pursue claims against the principal.

The order of dismissal in the Hundleys’ first action clearly stated that Spann Forestry was being dismissed with prejudice. Therefore, the operative inquiry is whether, in the settlement agreement that precipitated that dismissal, Hundley expressly reserved the right to pursue tort claims against other parties, i.e., Jody Spann and Spann Timber. This Court cannot conclude that such a reservation was made because the settlement agreement was never made a part of the official court record. Neither is there any affidavit or other admissible evidence describing the terms of the settlement agreement. Hundley’s attorney states that the settlement agreement expressly reserved the right to pursue tort claims against other parties; however, as we have stated many times, arguments of counsel are not evidence. See, e.g., Ex parte Coleman, 861 So.2d 1080, 1084 (Ala.2003). Hundley further argues that the failure to submit the written agreement into the record is of no consequence because the terms of the settlement agreement were “assumed, presumed, and admitted in the trial court for purpose of argument.” However, as we stated in Ryals, 773 So.2d at 1013, “[a]n appellate court can consider a fact to support or to undermine a summary judgment only to the extent that the record on appeal contains materials from the record before the trial court evidencing that fact at the time of submission of the motion for summary judgment ” (some emphasis added).

In the present case, there was no admissible evidence before the trial court, nor was there a stipulation or agreement entered on the record, that would indicate that in the settlement agreement Hundley reserved a right to pursue the same claims against Jody Spann and Spann Timber. Accordingly, under Ryals, we cannot “undermine” the summary judgment entered by the trial court based on that unproven fact. Based on the evidence in the record, the summary judgment entered by the trial court was correct and must be affirmed.

IV.

Hundley’s wrongful-death claim against Jody Spann and Spann Timber was premised on their vicarious liability for the tort allegedly committed by Spann Forestry. However, Jody Spann and Spann Timber have made a prima facie showing that Spann Forestry was dismissed with prejudice from a separate action based on the same set of facts. Accordingly, they argue, they cannot be vicariously liable for Spann Forestry’s actions under the doctrine of respondeat superior. Hundley has failed to rebut the prima facie showing made by Jody Spann and Spann Timber with substantial evidence indicating that her claims against them survived the dismissal with prejudice of Spann Forestry. Accordingly, Jody Spann and Spann Timber were entitled to a judgment as a matter of law, and the summary judgment entered by the trial court was proper.

AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . Section 12-21-109, Ala.Code 1975, states that "[a]ll receipts, releases and discharges in writing, whether of a debt of record, a contract under seal or otherwise, and all judgments entered pursuant to pro tanto settlements, must have effect according to their terms and the intentions of the parties thereto.”

      . After Jody Spann and Spann Timber filed their motion to reconsider and their renewed motion for a summary judgment based on the authority of Jackson, Hundley could have filed a response accompanied by evidence establishing that she did, in the settlement agreement releasing Spann Forestry from liability on her claim against it, reserve the right to pursue claims against other parties. She did not do so. Neither did she submit such evidence in the motion for reconsideration she filed after the trial court granted Jody Spann and Spann Timber’s motion for a summary judgment.