author: STUART, Justice. WOODALL, Justice

text:
    Ex parte CAREMARK RX, INC., et al. (In re John Lauriello, individually and on behalf of a class of all others who are similarly situated. v. Caremark RX, Inc., et al.). Caremark RX, Inc., et al. v. John Lauriello, individually and on behalf of a class of all others who are similarly situated. Frank G. McArthur et al. v. John Lauriello, individually and on behalf of a class of all others who are similarly situated.
    1040821, 1040908, and 1040977.
    Supreme Court of Alabama.
    Oct. 20, 2006.

      David G. Hymer, Jack W. Selden, and Joel M. Kuehnert of Bradley, Arant, Rose & White, LLP, Birmingham; Robert C. Khayat of King & Spalding, LLP, Atlanta, Georgia, for petitioner/appellant Caremark RX, Inc.
    Jere F. White, Jr., Lee M. Hollis, and Sarah 0. Warburton of Lightfoot, Franklin & White, LLC, Birmingham, for petitioners/appellants American International Group, Inc., National Union Fire Insurance Company of Pittsburgh, Pa., AIG Technical Services, Inc., and American International Specialty Lines Insurance Company.
    Lanny S. Vines of Vines & Waldrep, L.L.C., Birmingham, for appellants Frank McArthur, Bill Greene, and Virginia Greene.
    John W. Haley, Ralph D. Cook, Bruce J. McKee, and Michael L. Ermert of Hare, Wynn, Newell & Newton, L.L.P., Birmingham; John Q. Somerville of Galloway & Somerville, Birmingham; and James L. North and J. Timothy Francis of James L. North & Associates, Birmingham, for respondent/appellee John Lauriello.
   On Applications for Rehearing

STUART, Justice.

The opinion of August 18, 2006, is withdrawn and the following is substituted therefor.

In case no. 1040908, Caremark RX, Inc.; American International Group, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; AIG Technical Services, Inc.; and American International Specialty Lines Insurance Company (hereinafter sometimes referred to collectively as “Caremark and the insurers”) appeal from an order of the trial court issued on January 31, 2005, and styled “Order on Class Certification.” In that order, the trial court declared that it continued to have jurisdiction over new claims asserted by John Lauriello, individually and as class representative, against Caremark and the insurers, by virtue of a settlement agreement approved by the trial court in a 1998 class action in which Lauriello had been a member of the class. Lauriello’s newly asserted claims arose out of the negotiations of a settlement agreement entered into in the 1998 class action. Lauriello asserts these new claims on behalf of himself and the same class of plaintiffs certified in the 1998 action. The trial court also declared that no new class-certification analysis or hearing was required before proceeding with Lauriello’s newly asserted claims.

In case no. 1040821, Caremark and the insurers petition for a writ of mandamus directing the trial court to set aside its January 31, 2005, order. Caremark and the insurers seek the same relief — the vacation of the January 31, 2005, order — in case no. 1040908. Because the trial court’s January 31, 2005, order was not one certifying or refusing to certify a class, we conclude that a writ of mandamus is the appropriate method by which to review that order. Therefore, in case no. 1040821, we grant the petition; we dismiss the appeal in case no. 1040908.

In case no. 1040977, Frank G. McAr-thur, Bill Greene, and Virginia Greene (hereinafter referred to collectively as “McArthur”) appeal from the denial of their motion to intervene, filed pursuant to Rule 24(a), Ala. R. Civ. P., in the action filed by Lauriello. In case no. 1040977, we reverse and remand.

Background

Case no. 104.0908 and Case no. 1040821 The Class-Action Issue

In his complaint, Lauriello asserts the following: In 1998, the Jefferson Circuit Court certified a nationwide class action styled Griffin v. MedPartners, Inc. (Jefferson Circuit Court; CV-98-00297 et al.). The parties refer to that action as “the MedPartners securities litigation.” In that action, MedPartners was alleged to have misrepresented to the public its current and future financial status. Damages in that action were estimated to be approximately $3.2 billion. The trial court certified the complaint for class treatment.

According to the briefs filed with this Court, more than 20 similar class actions were filed in 1998 against MedPartners in various jurisdictions around the country. All of those actions arose out of the same alleged acts and omissions. Lauriello was the named plaintiff in one of those actions; however, his action was dismissed on April 17,1998.

According to Lauriello, when the Med-Partners securities litigation began Med-Partners represented that it was near bankruptcy and that the coverage limits of its insurance was $50 million. On January 15, 1999, counsel for the plaintiff class and MedPartners’ insurers entered into a “Memorandum of Understanding” to settle all claims asserted in the MedPartners securities litigation, including any other pending class action against MedPartners, for $56 million. Lauriello alleges that counsel for MedPartners represented to the trial court that MedPartners lacked the financial means to pay a more substantial judgment.

On May 3, 1999, at a hearing before the trial court on the proposed settlement, counsel for the plaintiff class represented to the trial court that the proffered settlement agreement was the best recovery the plaintiff class could obtain because of Med-Partners’ limited financial resources. Attorneys for MedPartners were present and heard these representations to the trial court; they did not attempt to correct, clarify, or rebut these statements. Based on the representations made at that hearing, the trial court conditionally approved the settlement and directed that notice of the proposed settlement be given to the class.

On June 30, 1999, counsel for the plaintiff class submitted an affidavit to the trial court in support of final approval of the proposed settlement in the MedPartners securities litigation. Among other representations, this affidavit provided:

“The principal factor considered by plaintiffs’ counsel in determining to settle the [MedPartners securities litigation] for $56 million was MedPartners’ serious financial straits....
“Plaintiffs’ counsel, while confident of the strength of plaintiffs’ claims, entered into settlement negotiations with the understanding that MedPartners was facing serious problems, including the risk that the company might have to file for Chapter 11 bankruptcy protection.... Plaintiffs’ counsel also learned that the insurance coverage available provided for maximum benefits of $50 million, and that the policies were wasting assets, meaning that certain defense counsel fees had to be paid out of the policies, thereby reducing the total amount of recovery that might ultimately be collected from the insurers.”

The trial court conducted a fairness hearing on July 9, 1999. Counsel for the plaintiff class submitted affidavits and presented arguments to the trial court to the effect that MedPartners lacked the means to pay an amount greater than the amount proposed in the settlement agreement. Attorneys for MedPartners were present and heard these arguments but, again, did not respond to, correct, or clarify the statements. The trial court approved the proposed settlement based on the representations made to it by the parties and their counsel. The trial court entered a final judgment in the MedPartners securities litigation on July 10, 1999, awarding the plaintiff class $56 million. The trial court awarded the class counsel attorney fees in the amount of $18,783,311.11; this amount was to be deducted from the settlement proceeds. Lauriello was a member of the settling class.

In a subsequent and unrelated action between MedPartners and one of its former officers, there was testimony concerning the assertions made in the Med-Partners securities litigation, the damage sustained as a result of the alleged wrongdoing, and the settlement agreement entered into in the MedPartners securities litigation. Documents produced in connection with that subsequent litigation revealed that, during the course of the MedPartners securities litigation, MedPartners had obtained significant additional insurance coverage that had not been revealed to the trial court in the MedPartners securities litigation.

The discovery in the unrelated litigation revealed that, in October 1998, after the MedPartners securities litigation had been commenced but before a settlement agreement had been reached, MedPartners paid $22.5 million for an insurance policy providing excess coverage. The excess policy provided “unlimited” coverage, that is, the insurer agreed to pay, without limitation, the damages awarded in the MedPartners securities litigation or the full amount required to settle that action. The excess policy was dated October 22, 1998, but indicated an effective date of September 30,1998.

Lauriello asserts that he learned of the existence of the excess-insurance policy in September 2003. Counsel for Lauriello asserts that the existence of this additional insurance coverage was not revealed in the course of the settlement negotiations in the MedPartners securities litigation.

On October 22, 2003, Lauriello sued Caremark and the insurers in the Jefferson Circuit Court. Lauriello asserted (1) a claim of misrepresentation based on MedPartners and its insurers’ alleged affirmative statements that the coverage limits were $50 million when, in fact, Med-Partners had in place an excess-insurance policy with unlimited coverage, and (2) a claim of suppression based on MedPart-ners and its insurers’ alleged failure to reveal the existence of the excess-insurance policy. Lauriello sought to be appointed as the class representative and to have class counsel appointed. Alternatively, Lauriello sought to have the trial court relieve the class members in the MedPart-ners securities litigation from the final judgment entered in that action or to have his fraud claims deemed an “independent action ... for fraud upon the court” under Rule 60(b), Ala. R. Civ. P.

On January 15, 2004, Caremark and the insurers moved to dismiss the complaint, asserting among other things, the statute of limitations, the doctrines of release and res judicata, and failure to state a claim upon which relief could be granted. Care-mark and the insurers also argued that, if the trial court did not dismiss Lauriello’s claims, the trial court was obligated by § 6-5-641, Ala.Code 1975, to conduct a rigorous analysis of the new claims asserted on behalf of Lauriello and all others similarly situated. " Caremark and the insurers also asserted that Lauriello and his counsel had a conflict of interest with the purported class members and that they could not properly serve as the class representative and class counsel.

In January 2005, the trial court issued an order, which it designated as an “Order on Class Certification.” In that order, the trial court concluded that it need not certify a new class action. The trial court noted that, in the MedPartners securities litigation, all parties had agreed that the trial court would retain “exclusive, continuing jurisdiction over all parties and the Settlement Class Members for all matters relating to the Settlement.” The trial court concluded that its continuing jurisdiction encompassed these newly alleged fraud claims because, it reasoned, the fraud was perpetrated upon the class members in the MedPartners securities litigation and upon the trial court in order to facilitate the settlement of the claims in the MedPartners securities litigation. The trial court noted that it had been unable to perform its obligations to the settlement class because of the misrepresentations made to it regarding MedPartners’ insurance coverage.

The trial court stated: “To force these wronged persons, composing the 1999 Class, to go through another slow and expensive re-certification procedure merely to assert rights they have already fought for and won, and were then wrongfully denied by the inaccurate settlement agreement, cannot in good conscience be allowed by this Court.” The trial court stated that this action raised issues relevant to the previous settlement and, therefore, that a new class certification was unnecessary. Because a new class was not being certified, the trial court concluded that the mandatory “rigorous analysis” of § 6-5-641, Ala.Code 1975, was not required. The trial court left open the issue whether Lauriello and his counsel were appropriate representatives for the plaintiff class.

Caremark and the insurers appeal that ruling, arguing that in order to address Lauriello’s claims, the trial court must certify a new class and must conduct the rigorous analysis required by § 6-5-641, Ala.Code 1975. Lauriello filed a motion to dismiss the appeal as improperly filed. Caremark and the insurers then filed a petition for a writ of mandamus, as an alternative means of appellate review.

Case no. 104.0977 The Intervention Issue

On November 5, 2003, shortly after Lau-riello filed his complaint, McArthur filed a complaint in the Jefferson Circuit Court against Caremark and the insurers, as well as the lawyers and law firms involved in the settlement of the MedPartners securities litigation. That action is hereinafter referred to as the “McArthur action.” The plaintiffs in the McArthur action allege that they were members of the settling class in the MedPartners securities litigation. Like Lauriello in his newly asserted claims, McArthur alleged misrepresentation and suppression against Caremark and the insurers. In addition to the misrepresentation and suppression claims, McArthur asserted breach-of-fiduciary-duty claims against the lawyers and the law firms involved in the settlement of the MedPartners securities litigation.

The McArthur action was then stayed, because of the then pending and substantially similar action filed by Lauriello. After the Lauriello court issued its January SI, 2005, “Order on Class Certification,” concluding that no new class certification was necessary, McArthur filed a motion to intervene in Lauriello’s action. On March 10, 2005, the trial court in Lauriello’s action denied this motion, concluding that it was untimely. McArthur appeals.

Case no. 104.0908 and Case no. 1040821 Review of the Trial Court’s Order Allowing New Class Claims to Proceed

In Regions Bank v. Lee, 905 So.2d 765 (Ala.2004), this Court stated:

“We apply ‘ “an abuse-of-discretion standard of review to a trial court’s class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class.” ’ Alfa Life Ins. Corp. v. Hughes, 861 So.2d 1088, 1094 (Ala.2003) (quoting Smart Prof'l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1248 (Ala.2002)). The party seeking certification has the burden of proving that it is entitled to class certification. § 6-5-641(e), Ala.Code 1975.”

905 So.2d at 769-70.

Additionally, as this Court has recognized:

“Mandamus is an extraordinary remedy requiring a showing that there is: ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991); Ex parte Johnson, 688 So.2d 772, 773 (Ala.1994).”

Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala.1996).

The trial court purported to exercise “continuing jurisdiction” over Caremark and the insurers in this action by relying on language contained in the settlement agreement entered into by the parties to the MedPartners securities litigation. Because of this “continuing jurisdiction,” the trial court allowed Lauriello’s claims of fraud, asserted on behalf of himself and others similarly situated, to go forward without the benefit of the rigorous analysis required by § 6-5-641, AIa.Code 1975.

By assuming jurisdiction over Lauriel-lo’s fraud claims and concluding that no new class-certification analysis was required, the trial court must have concluded either (1) that the settlement negotiations from the MedPartners securities litigation should be and could be reopened, or, alternatively, (2) that because the actions challenged by Lauriello purportedly occurred in connection with the settlement of a class action, the trial court had the authority to address those new claims without the necessity of another Rule 23, Ala. R. Civ. P., analysis. For the following reasons, we disagree with either conclusion, and we direct the trial court to vacate its January 31, 2005, order.

The only mechanism available to Lauriello to revive or reopen the claims made the basis of the settlement agreement entered into between the parties to the MedPartners securities litigation— claims that have been settled and on which a final judgment has been entered — is the mechanism provided in Rule 60(b), Ala. R. Civ. P. Rule 60(b) provides:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

Although Lauriello alleges that fraud occurred in connection with the settlement, a motion to set aside a final judgment because of fraud in the proceedings must be filed within four months of the date of the final judgment. See Rule 60(b), Ala. R. Civ. P. (“The motion shall be made within a' reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”), and Committee Comments on 1973 Adoption of Rule 60. In this case, the final judgment in the MedPartners securities litigation was entered some four years before Lauriello filed this action. Therefore, the option provided to Lauriello under Rule 60(b)(3) to challenge the settlement based on the alleged fraud is, at this date, foreclosed.

Additionally, because Lauriello’s challenge to the finality of the settlement agreement is addressed by Rule 60(b)(3), Rule 60(b)(6), Ala. R. Civ. P., known as the “catch-all” provision, is inapplicable. See Committee Comments on 1973 Adoption of Rule 60, Ala. R. Civ. P.: “[I]t is now settled that the ‘other’ provision of Rule 60(b)(6) is mutually exclusive with the five specific grounds for attack previously listed.” This Court has stated:

“Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5). Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has stated that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as seeking relief under clause (6).”

R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994) (citations omitted).

However, Rule 60(b), Ala. R. Civ. P., also contemplates that a party may seek to reopen a final judgment in the face of an allegation that the judgment was the result of “fraud upon the court.” That rule provides, in part:

“This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Because Lauriello alleges that Caremark and the insurers misrepresented MedPart-ners’ financial status and insurance coverage to the trial court as well as to the plaintiff class, the settlement agreement could potentially be attacked for “fraud upon the court.”

However, Lauriello’s 2003 complaint includes defendants that were not parties to the MedPartners securities litigation. Lauriello’s 2003 complaint also includes claims of fraud and misrepresentation that do not relate to the allegations made the basis of the MedPartners securities litigation. The inclusion of additional defendants and newly asserted claims indicates that, by the filing of the 2003 complaint, Lauriello is not seeking merely to reopen the settlement agreement to renegotiate the amount of damages payable to the class in the MedPartners securities litigation.

Indeed, considering the complaint as now drafted, we can find no basis on which to reopen the settlement proceedings, or to revive the claims asserted, in the MedPartners securities litigation. As the complaint is now drafted, Lauriello’s only option is to proceed with his misrepresentation and suppression claims as a new action. Lauriello asserts those claims on behalf of a class of all others similarly situated to himself with regard to these newly asserted claims. Despite the existence of the new claims, there can be no dispute that the class of persons similarly situated to Lauriello with regard to these newly asserted claims is identical to the class certified in the MedPartners securities litigation.

However, more than a discrete and identifiable group of individuals is required to properly certify claims for class treatment. In order to properly certify a class action, the “rigorous analysis” contemplated by Rule 23, Ala. R. Civ. R, and by § 6-5-641, Ala.Code 1975, must be met. In meeting this level of scrutiny, the members of the purported class must be analyzed in terms of their relationship to the particular claims and defenses to be asserted in the class action.

In Bill Heard Chevrolet Co. v. Thomas, 819 So.2d 34 (Ala.2001) (“Heard II”), this Court addressed a trial court’s failure to conduct the rigorous analysis required by Rule 23, Ala. R. Civ. P., and § 6-5-641, Ala.Code 1975. In Heard II, we reversed the trial court’s order certifying the purported class for two reasons. First, we concluded that the order had been entered without benefit of an evidentiary hearing and without an opportunity for the defendants to oppose class certification. We also concluded that the class-certification order failed to meet the rigorous-analysis standard imposed by Rule 23, Ala. R. Civ. P„ and § 6-5-641, Ala.Code 1975:

“The ... conditional class certification order fail[ed] to meet the rigorous-analysis requirements of § 6-5-641 and Rule 23 for the additional reason that the order fail[ed] to identify the elements of the four claims being certified for class treatment and fail[ed] to discuss in a cogent manner how those elements bear upon the criteria set forth in Rule 23.
“ ‘[The trial] court must go behind the pleadings in making a certification determination, “as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” ’
“Mann v. GTE Mobilnet of Birmingham, Inc., 730 So.2d 150, 152 (Ala.1999), quoting Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996). See also Ex parte Green Tree Fin. Corp., 723 So.2d 6, 9 (Ala.1998) (‘In determining whether the questions of law or fact common to the class members predominate over those questions that affect only individual class members, the court must initially identify the substantive law applicable to the case and identify the proof that will be necessary to establish the claim.’). The mandate to identify the ‘substantive law applicable to the case’ requires more than a simple statement of which state’s law governs; the trial court is required to identify the elements of the claims to be certified and to discuss, in the context of the class-certification criteria, the proof the plaintiffs must present to establish each of those elements. It is only by specifically discussing the elements of each claim in the context of the Rule 23 criteria that the trial court may determine whether the plaintiffs can establish the Rule 23(a) and 23(b) elements of class certification.”

819 So.2d at 41-42. Thus, the claims of the purported class members as well as the purported class members themselves must be analyzed before an action may proceed as a class action.

In the January 31, 2005, order, the trial court obviously recognized that the members of the plaintiff class, as certified in the MedPartners securities litigation, were similarly situated to Lauriello with regard to the settlement agreement entered into by the parties to the MedPartners securities litigation. However, the trial court did not consider the elements of Lauriel-lo’s new claims, the potential defenses of Caremark and the insurers, the relevant facts, or the applicable law. Lauriello’s claims of misrepresentation and suppression have not been analyzed by the trial court or any other court to determine whether they are appropriate for class treatment. Because Lauriello’s claims of misrepresentation and suppression have not been analyzed for purposes of class certification as required by § 6-5-641, Ala. Code 1975, the January 31, 2005, order failed to comply with the statutory mandate.

For these reasons, we conclude that Caremark and the insurers are entitled to the relief they seek; the trial court has a duty to comply with § 6-5-641, AJa.Code 1975, and has failed to do so; and Care-mark and the insurers have no other adequate remedy. We, therefore, issue the writ and direct the trial court to vacate its January 31, 2005, order. Because it appears from Lauriello’s complaint that he intends to assert his misrepresentation and suppression claims — claims that have not heretofore been analyzed for class treatment — on behalf of a class and against entities that were not parties to the Med-Partners securities litigation, we order the trial court to vacate its “Order on Class Certification” and direct the trial court to conduct a rigorous analysis of those claims, pursuant to Rule 23, Ala. R. Civ. P., and § 6-5-641, Ala.Code 1975. We express no opinion on the merits of those claims or on the feasibility of certifying them for class treatment.

Case no. 10^0977 McArthur’s Motion to Intervene

After the trial court entered its “Order on Class Certification,” McArthur filed a motion to intervene in the Lauriello action for the stated purposes of

“(a) challenging the adequacy of class counsel and the class representative; (b) participating in all discovery relating to the adequacy of class counsel and the class representative; (c) seeking appointment and designation of Frank G. McArthur, Bill Greene and Virginia Greene as class representatives in this action; (d) seeking appointment and designation of the undersigned attorneys as class counsel for the certified class herein; (e) joining as defendants in this action the following parties who are presently named as defendants in Frank G. McArthur, et al. v. Caremark RX, Inc., et al. ... ”

The trial court denied that motion as untimely filed. The trial court observed that as early as February 2004 McArthur knew of his conflict claim because he had already asserted the conflict issue in the McArthur action. However, the trial court observed, McArthur did not bring the alleged conflict of interest to the attention of the court in Lauriello’s action until after that court had already expended considerable time and effort to reach its conclusions and to issue its “Order on Class Certification.” In denying McArthur’s motion to intervene, the trial court stated:

“It is a basic principle of jurisprudence that a court may only rule on what is presented before it. In contemplating the Order on Class Certification, this Court was presented with Lauriel-lo’s motion and [Caremark and the insurers’] opposition. It is imperative to note that out of a class of numerous individuals, no one came forth with any argument whatsoever as to adequacy of class representative and counsel, save [Caremark and the insurers] in this action. In issuing the Order on Class Certification of January 31, 2005, it was contemplated that the Lauriello Plaintiff and the Lauriello Defendants would have the opportunity for discovery regarding, what for all indications seemed to be, a dispute concerning [Lauriello] and [Caremark and the insurers] in this action. It was not until February 8, 2005, eight days after this Court’s Order on Class Certification was issued, that the McArthur plaintiffs finally chose to act by filing their Motion to Intervene, Objection to the Order on Class Certification, and Motion for Sua Sponte Removal of Class Representative and Class Counsel.”

The trial court concluded that McArthur had “slept on his rights,” making his motion to intervene untimely.

“ ‘The decision to grant or to deny a motion to intervene is within the sound discretion of the trial court, and this Court will not disturb that ruling absent an abuse of discretion. In its exercise of discretion, the trial court must determine whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter, be impaired or impeded; and (4) that its interest is not adequately represented.’ ”

Richards v. Izzi 819 So.2d 25, 33 (Ala.2001) (quoting City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997), citing in turn Valley Forge Ins. Co. v. Alexander, 640 So.2d 925, 927 (Ala.1994), and Rule 24(a), Ala. R. Civ. P.). “A ‘practical’ rather than a ‘technical’ approach measures the doctrine of intervention as a matter of right pursuant to Rule 24(a)(2)[, Ala. R. Civ. P.].” Long v. City of Hoover, 844 So.2d 1273, 1281 (Ala.Civ.App.2002).

As recognized above, McArthur asserts that he was a member of the class of plaintiffs certified in the MedPartners securities litigation. If he was a settling party in that action he is a purported class member in Lauriello’s action. If he is a member of the class to be certified in Lauriello’s action, he has a direct interest in the fraud and suppression claims asserted in that action. However, McArthur asserts that Lauriello and his counsel have a conflict of interest and are not appropriate parties to represent the class, which includes McArthur.

If McArthur is not allowed to intervene in Lauriello’s action, the only parties, as the action is currently situated, available to protect his interests are Caremark, the insurers, and Lauriello. However, Care-mark and the insurers are alleged to have perpetuated a fraud upon the class members, including McArthur. Lauriello and his counsel are alleged to have, at a minimum, acted negligently in not discovering the fraud. If the claims against Caremark and the insurers go forward in the manner the case is currently postured, McArthur’s ability to protect his interest may be impaired or impeded.

This brings us to the final consideration of McArthur’s motion to intervene — the timeliness of the motion.

“[I]t has long been held that the determination of timeliness [of a motion to intervene] is a matter committed to the sound discretion of the trial court. See Strousse v. Strousse, 56 Ala.App. 436, 322 So.2d 726 (1975). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir.1970). Because the pressure to allow intervention ‘of right’ under Rule 24(a)[, Ala. R. Civ. P.,] is by its very nature more compelling than is permissive intervention, most courts tend to require less rigidity in evaluation of timeliness under Rule 24(a). See Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970), rehearing denied, 400 U.S. 1025, 91 S.Ct. 580, 27 L.Ed.2d 638 (1971). See generally, [C. Wright, A. Miller & M. Kane, Federal Practice & Procedure ] § 1916 [ (2d ed.1986) ]. As expressed in McDonald, 430 F.2d at 1073: ‘Since in situations where intervention is as of right, the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss such a request for intervention as untimely, even though they might deny the request if the intervention were merely permissive.’
“Notwithstanding these principles, however, motions for intervention after judgment have not met with favor in the courts. See, generally, Wright & Miller, § 1916. As was stated in McDonald, 430 F.2d at 1072: ‘The rationale which seems to underlie this general principle ... is the assumption that allowing intervention after judgment will either (1) prejudice the rights of the existing parties to the litigation or (2) substantially interfere with the orderly processes of the court.’ However, if neither of these results would occur, the mere fact that judgment has already been entered should not by itself require the denial of an application for intervention. See Wright & Miller, § 1916.
“As explained by the court in McDonald, 430 F.2d at 1074:
“ ‘ “Timeliness” is not a word of exactitude or of precisely measurable dimensions. The requirement of timeliness must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice. The rule has its permissive aspects, and while we do not dislodge nor denigrate the trial court’s discretion in matters of intervention, we must view its exercise in the liberal atmosphere of the Rules of Civil Procedure, which are to be construed “to secure the just, speedy, and inexpensive determination of every action.” Rule 1, Fed.R.Civ.P. [As are the Alabama Rules of Civil Procedure. See Rule 1, A.R. Civ. PJ ... We think it is correct to say that since “the privilege of intervention stems from a desire to protect the rights of unrepresented third parties, it becomes apparent that the timely application requirement under Rule 24 was not intended to punish an intervenor for not acting more promptly but rather was designed to insure that the original parties should not be prejudiced by the intervenor’s failure to apply sooner.” Note, The Requirement of Timeliness Under Rule of the Federal Rules of Civil Procedure, 37 Va. L.Rev. 863, 867 (1951). Accordingly, it has been the traditional attitude of the federal courts to allow intervention “where no one would be hurt and greater justice would be attained.” Id. at 868.’ ”

Randolph County v. Thompson, 502 So.2d 357, 364-65 (Ala.1987).

We agree with the trial court that Mc-Arthur’s motion to intervene could have been filed sooner. However, timeliness of the motion to intervene must be balanced against the need to protect the rights of class members other than the named representative. McArthur’s interests, as well as the interests of the other purported class members, may not be adequately protected if McArthur is not allowed to intervene.

Further, in light of the facts that the trial court has not yet addressed Lauriel-lo’s motion to be appointed as class representative, that the trial court has not yet addressed the issue of an alleged conflict of interest between Lauriello and the purported class members, and that we have directed the trial court to conduct a rigorous analysis of Lauriello’s misrepresentation and suppression claims, we fail to see how allowing McArthur to intervene at this stage of the proceedings would prejudice the existing parties to the proceedings. We also fail to see how allowing McArthur’s intervention motion at this time could interfere with the orderly processes of the trial court.

Because none of the parties will be prejudiced by the intervention, because justice may not be attained if intervention is not allowed, and because McArthur’s intervention at this stage of the litigation will not prejudice the existing parties or interfere with the orderly processes of the trial court, we conclude that the trial court exceeded its discretion in denying McAr-thur’s motion to intervene. We reverse that ruling and remand this cause to the trial court with directions to grant McAr-thur’s motion. We express no opinion on McArthur’s allegation of a conflict of interest between Lauriello and the other purported class members.

1040821 — APPLICATION OVERRULED; OPINION OF AUGUST 18, 2006, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED.

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

WOODALL, J., concurs in the result.

1040908 — APPLICATION OVERRULED; OPINION OF AUGUST 18, 2006, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

1040977 — APPLICATION OVERRULED; OPINION OF AUGUST 18, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

WOODALL, Justice

(concurring in case no. 1040908 and case no. 1040977; concurring in the result in case no. 1040821).

Insofar as the main opinion grants the petition for the writ of mandamus in case no. 1040821,1 concur in the result only. I concur fully in the remainder of the opinion.

      . Caremark and the insurers raise identical issues in the appeal (case no. 1040908) and in the petition for a writ of mandamus (case no. 1040821). The issues were fully briefed in the appeal. For that reason, in lieu of ordering answer and briefs in case no. 1040821, we accepted the briefs filed by the parties in case no. 1040908 as sufficient for our consideration of Caremark and the insurers’ petition for a writ of mandamus.

      . The complaint alleges that Caremark is a successor corporation to MedPartners. For purposes of this opinion, we treat Caremark as a full successor to MedPartners’ assets and liabilities.

      . A settling party in the MedPartners securities litigation would be a purported class ■ member in Lauriello’s action.

      . However, we point out that Caremark is judicially estopped to now challenge the existence of a validly certified class, as recognized in the MedPartners securities litigation. The propriety of that certification has been resolved and is not subject to debate. This Court's silence as to the applicability of the doctrine of judicial estoppel to any other party is not intended to foreclose consideration of such a claim, if appropriate, by the trial court.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte Stanley Edward DINKEL. (In re Amy Patterson and Morgan Pitts v. Stanley Edward Dinkel et al.).
    1051067.
    Supreme Court of Alabama.
    Oct. 20, 2006.

      Stephen W. Drinkard, Montgomery; and Ruth Ann Hall of Spurrier, Rice & Hall, Huntsville, for petitioner.
    Finis E. St. John and Gaynor L. St. John of St. John & St. John, LLC, Cull-man, for respondents.
   SEE, Justice.

Stanley Edward Dinkel petitions this Court for a writ of mandamus directing the trial court to enter a protective order to prevent Dinkel’s being deposed in a civil case against him until the criminal charges pending against him are resolved.

Facts and Procedural History

In March 2005, Stanley Dinkel and Amy Patterson were involved in an automobile accident at an intersection in Cullman County. Patterson’s daughter Morgan Pitts was a passenger in Patterson’s car at the time of the accident. In August 2005, Patterson and Pitts (hereinafter collectively “Patterson”) sued Dinkel, GEICO Insurance Company, and fictitiously named parties, alleging negligence and wantonness, a claim for uninsured/underinsured-motorist benefits, negligent entrustment, negligent supervision, and violation of the Dram Shop Act and asserting claims under the Alabama Extended Manufacturer’s Liability Doctrine and a theory of “crashwor-thiness.” Patterson alleged that Dinkel, who was 19 years old at the time of the accident, was under the influence of alcohol at the time of the accident. Dinkel denied the material allegations of Patterson’s complaint. After Patterson sued him, Dinkel was arrested and charged with assault as a result of the accident.

In September 2005, Patterson’s attorney, Gaynor St. John, inquired as to dates Dinkel would be available for deposition. Dinkel’s attorney, Ruth Ann Hall, responded that she was “swamped through the end of October” but that she hoped to work out a convenient date within the next couple of days. St. John e-mailed Hall a couple of weeks later and asked if Hall had any dates in November available for the deposition. Hall responded that she would “get back with” St. John. In November, St. John sent Hall another letter stating that she had not heard from Hall regarding an available date and that she had issued a notice to depose Dinkel on December 5, 2005. Hall responded that she would be in trial on December 5 and that the first available date she could attend the deposition would be January 30, 2006. St. John canceled the December 5 deposition and rescheduled it for January 30, 2006. However, Hall also canceled the January 30 deposition because of a scheduling conflict. Dinkel’s deposition was rescheduled for March 17, 2006. St. John also subpoenaed two nonparties,- Gregg Jackson and Coralie Jackson, to appear for depositions on March 17.

On March 8, 2006, Hall wrote St. John a letter in which she raised for the first time the fact that Dinkel faces unresolved criminal charges based on the events surrounding the accident. Hall said that, because of the pending assault charges against Dinkel, she could not allow St. John to depose Dinkel at that time. She also said that she could not attend the Jacksons’ depositions on March 17 because she would be attending depositions for a case pending in a federal court. Finally, Hall asked whether Patterson would be interested in mediating ■ the claim. She said, however, that the pending criminal charges against Dinkel might “hinder” any such mediation.

St. John sent Hall a letter confirming the rescheduled depositions of Patterson, Dinkel, and the Jacksons, which were set for April 17, 2006. St. John again subpoenaed the Jacksons to appear for depositions on April 17. However, Hall again canceled the depositions. By letter, St. John asked for the next available date to reschedule them and noted that Dinkel’s responses to interrogatories and document requests were due on April 16. Dinkel served objections to the interrogatories and document requests on April 17. On April 20, Patterson moved the trial court to compel Dinkel’s deposition, and the trial court granted the motion. Dinkel responded by filing a motion for reconsideration of the motion to compel and for a protective order.

On April 26, Hall and St. John conferred and rescheduled the depositions for May 5. Upon returning to her office after the conference, Hall sent St. John a letter that addressed the motion to compel. Specifically, Hall said,

“I trust that as we have the depositions scheduled for Friday, May 5, this takes care of your issues regarding the depositions .... Finally, by copy of this letter to Judge Hardeman, I am informing him of what is hopefully the resolution of the discovery issues in this case.”

On May 4, the trial court entered an order denying the motion for a protective order and canceling a hearing on the motion for reconsideration because the issue was moot.

On May 4, before any depositions were taken, Dinkel petitioned this Court for the writ of mandamus directing the trial court to vacate the order denying Dinkel’s motion for a protective order and to stay Dinkel’s deposition pending disposition of the criminal charges against him. He also filed a motion in this Court to stay the proceeding pending a ruling by this Court on his mandamus petition. This Court ordered answer and briefs and stayed the proceeding in the trial court pending resolution of this petition for the writ of mandamus.

Standard of Review

It is well-settled that mandamus is an extraordinary writ, requiring a showing that there is “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” Morrison Rests., Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905, 907 (Ala.1998) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).

As we stated in Ex parte A.B., 950 So.2d 1142, 1146 (Ala.2006), “not every trial court ruling on a discovery dispute entitles the aggrieved party to mandamus review by an appellate court.” When reviewing a discovery order, this Court will issue the writ of mandamus only after making two determinations:

“ ‘First, because discovery matters are within a trial court’s sound discretion, we must determine that the trial court in issuing the discovery order clearly exceeded its discretion. Second, we must ensure that the petitioner does not have an adequate remedy by appeal.’ ”

950 So.2d at 1146 (quoting Ex parte Crawford Broad. Co., 904 So.2d 221, 224 (Ala.2004)).

Analysis

Dinkel argues that without a protective order he will be forced to sit for a deposition that will threaten his Fifth Amendment right not to incriminate himself. We recently discussed a similar issue in Ex parte Rawls, 953 So.2d 374 (Ala.2006). In that case, Bryan Rawls petitioned this Court for a writ of mandamus directing the trial court to stay his divorce proceeding pending resolution of the criminal charges against him. The criminal charges arose from an incident that occurred after his wife, Teresa, filed for a divorce, when he drove his car into their garage, damaging Teresa’s car and the marital residence. This Court considered three issues when deciding whether to issue the writ of mandamus and stay the divorce proceeding: (1) whether the civil and criminal proceedings were parallel; (2) whether Rawls’s Fifth Amendment protection against self-incrimination was threatened by his testifying in the divorce proceeding; and (3) whether the requirements of the balancing test established in Ex parte Baugh, 530 So.2d 238, 244 (Ala.1988), were met. We answered all three inquiries in the affirmative, and we issued the writ.

Dinkel seeks different relief from the relief requested by Rawls. Rawls sought a stay of the civil proceeding pending a resolution of the criminal proceeding; Dinkel seeks only a protective order preventing his deposition until the criminal charges against him are resolved. However, the same concerns apply to a party seeking a protective order. See Ex parte Price, 707 So.2d 1105, 1106 (Ala.1997) (enumerating a similar balancing test to the one set forth in Baugh: “To determine whether a stay or protective order should issue in such circumstances, the trial court must weigh the movant’s interest in postponing the civil action against the prejudice that may result to the other party because of delay.” (citing Ex parte White, 551 So.2d 923 (Ala.1989))). Therefore, we must balance Dinkel’s interests in both the civil proceeding and the criminal proceeding against him against Patterson’s interest in the civil proceeding. In this case, both concerns weigh in favor of Dinkel.

The trial court granted Patterson’s motion to compel Dinkel’s deposition and then denied Dinkel’s motion for a protective order. Thus, the trial court has ordered Dinkel to sit for a deposition. This contravenes the principle that “[a] party cannot be compelled to testify or compelled to provide discovery in a civil proceeding while there is a parallel criminal action pending against the party.” Ex parte Ebbers, 871 So.2d 776, 787 (Ala.2003) (citing Baugh and White). By granting the motion to compel Dinkel’s deposition and denying his motion for a protective order, the trial court is compelling Dinkel to testify in a civil action while a criminal proceeding is pending against him, thus threatening his Fifth Amendment right not to incriminate himself.

We have stated:

“To sustain the moving party’s Fifth Amendment right against self-incrimination, ‘ “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an expla- ■ nation of why it cannot be answered might be dangerous because injurious disclosure could result.” ’ ”

Rawls, 953 So.2d at 381 (quoting Baugh, 530 So.2d at 241). In this case, compelling Dinkel to give his deposition would subject him to questions about the accident, from which his criminal charges stem. Such questions would be dangerous because the answers to those questions could result in a waiver of Dinkel’s Fifth Amendment right; his answers could negatively impact the criminal proceeding; and his silence could hurt him in the civil proceeding.

In addition to weighing the threat to Dinkel’s Fifth Amendment right, we weigh his interest in the civil proceeding. As in Price, requiring Dinkel to be deposed “would force upon him the choice of asserting his Fifth Amendment right [not to answer questions at the deposition] or participating fully in his defense in the civil case.” 707 So.2d at 1106. As we stated in Baugh, “ ‘[t]he Supreme Court has disapproved of procedures which require a party to surrender one constitutional right in order to assert another.’ ” 530 So.2d at 242 (quoting Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1088 (5th Cir.1979)).

We must balance Dinkel’s interest in not testifying by deposition in the civil proceeding and in the criminal proceeding against Patterson’s interest in the civil proceeding. The fact that Dinkel seeks a protective order, rather than a stay of the civil proceeding, results in less potential prejudice to Patterson than was the case to the other party in Rawls. In Rawls, this Court held that “[although Teresa has a strong interest in the completion of the divorce proceedings, because there is no evidence that her case will be at all prejudiced or damaged by the issuance of a stay, Bryan’s Fifth Amendment rights must prevail over her interest.” 953 So.2d at 385-86. Whereas the stay granted in Rawls prevented Teresa Rawls from obtaining any further discovery until after the resolution of the criminal charges against Bryan, a protective order here will only postpone Dinkel’s deposition. It will not postpone the depositions of Gregg Jackson and Coralie Jackson, nor will it postpone any other discovery in the civil action.

Because the threat to Dinkel’s Fifth Amendment right and his interest in delaying his deposition in the civil proceeding outweigh Patterson’s interest in taking his deposition before the criminal charges are resolved, the trial court exceeded its discretion when it denied Dinkel’s motion for a protective order. Further, Dinkel does not have an adequate remedy on appeal because once he is compelled to give his deposition, his Fifth Amendment right is jeopardized. Once he has given the deposition, such an infringement cannot be corrected on appeal.

We issue the writ of mandamus and direct the trial court to enter a protective order allowing Dinkel to postpone his deposition in the civil action pending against him until the criminal charges against him arising out of the same accident are resolved.

PETITION GRANTED; WRIT ISSUED.

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

      . In Rawls, both the main opinion and the dissenting opinion discussed whether the trial court was compelling Rawls to testify, thus violating his Fifth Amendment right, by denying his motion to stay the civil proceeding. The dissent said that the decision did not implicate Rawls's Fifth Amendment right: "Because he may refuse to answer, the fact that Bryan may be asked a question the response to which could incriminate him presents no Fifth Amendment issue.” 953 So.2d at 391-92. However, this interpretation runs contrary to Ebbers, in which this Court stated:

        "A civil party's Fifth Amendment right against self-incrimination cannot be adequately protected by requiring him simply to assert his right to remain silent when asked specific questions during a civil deposition; such an approach construes the Fifth Amendment too narrowly.”
      871 So.2d at 788.

      . “The Fifth Amendment privilege cannot be selectively invoked, and once answers to incriminating questions have been given, the privilege is waived regarding questions on the same subject.” Rawls, 953 So.2d at 388 (See, J., concurring in Parts I and II and concurring in the result as to Part III) (citing 5 Wayne R. LaFave et al., Criminal Procedure § 24.5 (2d ed.1999); John E. Nowak & Ronald D. Rotunda, Constitutional Law § 7.6(a) (4th ed.1991)).

      . This fact adequately addresses Patterson's argument that “[a] delay in the taking of depositions of non-party witnesses will impede the plaintiffs’ ability to determine where defendant obtained alcohol and who allowed him to drive after consuming alcohol.” Because Dinkel does not seek a protective order against the taking of the depositions of non-party witnesses, but seeks only a protective order to prevent his own deposition from being taken at this time, we do not address these concerns.

      . Patterson concedes that Dinkel “may be entitled to a protective order as to his deposition testimony.” She continues: "However, a complete stay of these proceedings is not necessary to protect the interests of [Dinkel] and would greatly prejudice [Patterson].” Patterson's brief at 8.
      Both Patterson's brief and Dinkel’s reply brief discuss whether Dinkel delayed in asking for a stay of the proceeding; however, this Court granted the stay pending resolution of this petition for the writ of mandamus and Dinkel does not seek a stay of the proceeding until resolution of his criminal charges. Instead, he seeks a protective order so that he will not be deposed until after resolution of the criminal charges.


author: PARKER, Justice.

text:
    Dr. Dwight HOOPER v. COLUMBUS REGIONAL HEALTHCARE SYSTEM, INC., and Phenix Healthcare Services, Inc.
    1031128.
    Supreme Court of Alabama.
    Oct. 20, 2006.

      Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    William H. Webster of Webster, Henry & Lyons, P.C., Montgomery; and James R. McKoon and Melissa B. Thomas of McKoon & Thomas, Phenix City, for ap-pellees.
   PARKER, Justice.

I. Background

Dr. Dwight Hooper is a physician who specializes in obstetrics and gynecology. In 1994 he entered into a three-year employment contract with Columbus Regional Healthcare System, Inc. Under the agreement, Columbus Regional Healthcare provided Dr. Hooper with hospital privileges at the Medical Center in Columbus, Georgia, and at Phenix Regional Hospital in Phenix City, Alabama. Columbus Regional Healthcare owns and operates the Medical Center. Columbus Regional Healthcare owns Phenix Healthcare Services, Inc. (hereinafter collectively “Columbus”), which owned and operated the Phenix Regional Hospital until it closed. On October 29, 1997, Dr. Hooper and Columbus entered into a new three-year employment agreement that provided for the automatic renewal of the agreement thereafter on an annual basis.

At the center of this case is a provision of the employment agreement that required Columbus to pay professional-liability insurance premiums for Dr. Hooper at the “standard rate.” The agreement provided that, in the event Dr. Hooper was not insurable through Columbus at the standard rate, Columbus was obligated to pay the standard rate charged by the insurer for physicians in similar practices in Columbus, Georgia. Any portion of the insurance premium that exceeded the standard rate was to be paid by Dr. Hooper.

Beginning in 1998, Dr. Hooper and Columbus were named as defendants in several malpractice actions. As a result of settlement negotiations in one of those actions, Columbus was required to pay the plaintiff $50,000 above the amount Dr. Hooper’s insurer had agreed to pay. According to testimony in this case, at that point the relationship between Dr. Hooper and Columbus began to deteriorate.

Shortly after the settlement in the medical-malpractice case, Lynne Anderson, a senior vice president of Columbus, informed Dr. Hooper that the insurer would not renew his professional-liability insurance policy when it expired in July 2000. Anderson also informed Dr. Hooper that he was no longer insurable at the standard rate and that he would have to find an insurance company that would provide non-standard-rate coverage.

In July 2000, Dr. Hooper met with Larry Sanders, the chief executive officer of Columbus. At that meeting, according to Dr. Hooper, Sanders was uncharacteristically hostile and rude, and he made several insulting remarks concerning Dr. Hooper’s competence as a physician. Sanders also stated: “I am sure you are looking for other [employment] opportunities; I would if I were you.” (Dr. Hooper’s brief at 14.)

Although Dr. Hooper did write to the Seton Medical Group in Baltimore, Maryland, to inquire about possible employment, he continued working at Columbus while exploring options for non-standard-rate insurance coverage. Parker Harvey, an insurance broker in Atlanta, Georgia, referred to Dr. Hooper by Anderson, advised Dr. Hooper that the best rate he could find for professional-liability insurance coverage for physicians in similar practices in Columbus was $36,510 annually, which was more than double Dr. Hooper’s previous premiums of approximately $15,000. Dr. Hooper gave this information to Don Elder, the senior vice president at Columbus who was handling Dr. Hooper’s insurance matter, and requested that Columbus pay the $36,510 premium as required by the employment contract. Elder responded that Columbus would pay $15,000 “and not a penny more.” (Dr. Hooper’s brief at 16.)

Dr. Hooper subsequently secured nonstandard-rate professional-liability insurance coverage; because of the malpractice actions that had been brought against him, his annual premium for the coverage was $110,884. Columbus paid $15,000 toward the premium, and, although Dr. Hooper paid the balance of the premium, he argues that Columbus should have paid $36,510 toward his premium of $110,884.

The relationship between Dr. Hooper and Columbus continued to deteriorate. Dr. Hooper’s last day working for Columbus was November 10, 2000; he then moved to Baltimore to start work for the Seton Medical Group. Dr. Hooper had made arrangements with two other physicians to care for his patients. Approximately one month after moving to Baltimore, Dr. Hooper decided to return to Phenix City and open an independent practice. He stated that he had made insurance arrangements with Parker Harvey to take effect on the date of the scheduled opening of his private practice. When Columbus learned that Dr. Hooper planned to open a private practice in the area, however, it withdrew Dr. Hooper’s hospital privileges, citing as grounds Dr. Hooper’s alleged lack of professional-liability insurance coverage and his alleged abandonment of his patients.

After several additional interactions, Columbus offered Dr. Hooper the opportunity to voluntarily resign his hospital privileges, in exchange for which Columbus would not file a report with the National Practitioner Data Bank, which ordinarily required the report of all suspensions of hospital privileges that exceeded 30 days. Dr. Hooper regarded these terms as contrary to Columbus’s own bylaws and as a blatant attempt to blemish his professional record. He concluded, however, that he had no choice but to agree to the terms. Dr. Hooper was ultimately unable to establish his own practice in Phenix City, and he eventually moved to Tuscaloosa, where he took a job practicing with the Capstone Medical Group at the University of Alabama.

Dr. Hooper sued Columbus in the Russell Circuit Court. He initially alleged 11 causes of action, but he eventually dropped all except the breach-of-contract, wanton- and/or willful-conduct, and civil-conspiracy claims. Columbus Regional Healthcare filed a counterclaim against Dr. Hooper, alleging breach of contract. Extensive discovery was conducted, and the parties moved for a summary judgment. The trial court granted Columbus’s motion for a summary judgment on Dr. Hooper’s claims, and the trial court certified that judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. Columbus Regional Healthcare’s counterclaim remains pending in the trial court. Dr. Hooper appealed.

II. Standard of Review

We review a summary judgment de novo. Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citing American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002)).

“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”

844 So.2d at 545 (quoting Nationwide Prop. & Cos. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)) (citations omitted).

Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.

III. Analysis

A. Breach of Contract

“ ‘To establish a breach-of-contract claim, a plaintiff must show “ ‘(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ ” ’ ” Jones v. Alfa Mut. Ins. Co., 875 So.2d 1189, 1195 (Ala.2003)(quoting Ex parte Coleman, 861 So.2d 1080, 1085 (Ala.2003)).

Although the existence of a valid contract, i.e., the employment agreement, in this case is not disputed, the parties dispute the performance and damages elements of the breach-of-contract claim. For example, although Dr. Hooper provided evidence indicating that he performed as required under the employment agreement until his relationship with Columbus soured in 2000, Columbus argues that Dr. Hooper breached their agreement by leaving Columbus’s employment without the 12 months’ notice required by § 10(a) of the employment agreement. Dr. Hooper does not dispute that he failed to provide such notice; however, he asserts that Columbus breached the contract first by failing to pay the share of Dr. Hooper’s professional-liability insurance it was required to pay under the agreement. Consequently, the question of Columbus’s alleged nonperformance under the employment agreement must be answered to determine whether Dr. Hooper’s failure to perform his obligations under the agreement is actionable.

Dr. Hooper offered evidence indicating that Columbus breached the employment agreement first when it refused to pay the standard-rate premium of $36,510, as quoted by Parker Harvey, for physicians in similar practices in Columbus, Georgia. Columbus claims that its failure to pay the $36,510 portion of the premium was not a breach of the employment agreement because, it says, it was obligated to pay only $15,000, what it considered the standard rate. Columbus argues that the term “standard rate” as used in the employment agreement refers to the normal rate charged for professional-liability insurance for physicians generally, i.e., $15,000. Dr. Hooper argues that the term “standard rate” means the rate normally charged physicians who, like Dr. Hooper, have a heavy workload of high-risk patients. That rate was, at that time, $36,510.

Because the language of § 6(a) of the employment agreement — providing that if the premium for Dr. Hooper’s professional-liability insurance exceeded the standard rate, Columbus would pay Dr. Hooper’s insurer “that sum which is the insurer’s standard premium rate for physicians in similar practices in Columbus, Georgia” — could support Dr. Hooper’s position, there is a genuine issue of material fact as to what is the applicable “standard rate,” and, thus, whether Columbus breached the employment agreement when it refused to pay the $36,510 Dr. Hooper alleges was the standard premium for a doctor with his workload and type of patients. Consequently, the trial court erred when it entered a summary judgment for Columbus on the breach-of-contract claim.

B. Wanton and Willful Conduct

“This Court has defined ‘wanton conduct’:

“ ‘[The] doing of some act or something with reckless indifference to the consequences of said act, or ... a failure or omission to do something, with reckless indifference to the consequences of such failure or omission, that is, that the party acting or failing to act is conscious of his conduct, and even though without any actual intent to injure is aware from his knowledge of existing circumstances and conditions that his conduct would probably result in injury to another or in damage to his property.’ ”

Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679-80 (Ala.2001) (quoting Weatherly v. Hunter, 510 So.2d 151, 152 (Ala.1987), quoting in turn W.T. Ratliff Co. v. Purvis, 292 Ala. 171, 176, 291 So.2d 289, 293 (1974)). “ ‘Wantonness involves the “conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.” ’ ” Ammons v. Tesker Mfg. Corp., 853 So.2d 210, 213 (Ala.2002) (quoting Hobart Corp. v. Scoggins, 776 So.2d 56, 58 (Ala.2000)). “To constitute ‘willful or intentional injury,’ there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission.” English v. Jacobs, 263 Ala. 376, 379, 82 So.2d 542, 545 (1955).

Dr. Hooper’s complaint included separate claims of -willful and wanton conduct against Columbus at each of the two hospitals operated by it. To establish those claims, Dr. Hooper must prove that Columbus had a duty to refrain from causing him the alleged injury or damage and that Columbus breached that duty. Beard v. Mobile Press Register, Inc., 908 So.2d 932 (Ala.Civ.App.2004); Ammons, supra.

Dr. Hooper proffered evidence indicating that Columbus sought to “blemish his record” and to prevent him from opening a medical practice in the Columbus, Georgia/Phenix City area. However, he failed to establish the existence of a duty toward him in this regard. He did not allege in his appeal that the “blemish” rose to the level of the tort of defamation, although he had included a defamation claim in his original complaint.

Nor did Dr. Hooper establish that Columbus’s alleged efforts to prevent him from opening a medical practice violated any duty Columbus owed him. Ordinarily, a business has no duty to assist a competitor in establishing a competing business in the same geographical area and thereby undermine its own business.

We conclude that the trial court did not err in entering a summary judgment for Columbus on the claims alleging willful and wanton conduct, and we affirm the trial court’s judgment as to those claims.

C. The Civil-Conspiracy Claim

“Civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” Keith v. Witt Auto Sales, Inc., 578 So.2d 1269, 1274 (Ala.1991) (citing Eidson v. Olin Corp., 527 So.2d 1283 (Ala.1988)). “The gist of an action alleging civil conspiracy is not the conspiracy itself but, rather, the wrong committed.” 578 So.2d at 1274 (citing Sadie v. Martin, 468 So.2d 162 (Ala.1985)).

Columbus argues that it is well established that “'liability for civil conspiracy rests upon the existence of an underlying wrong and [that] if the underlying wrong provides no cause of action, then neither does the conspiracy.’ ” Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1271 (Ala.2000) (quoting Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala.1993)). Because the trial court entered a summary judgment for Columbus on the underlying wrongs, that is, on the breach-of-contract, wanton-misconduct, and willful-misconduct claims, Columbus argues, there remains no basis for the civil-conspiracy claim. However, this Court is reversing the summary judgment on the breach-of-contract claim. In Barber v. Stephenson, 260 Ala. 151, 155, 69 So.2d 251, 254 (1954), this Court defined civil conspiracy as

“the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means.”

Dr. Hooper has failed to establish that Columbus’s alleged breach of contract was “unlawful, oppressive, or immoral,” or was done by “unlawful, oppressive, or immoral means,” as described in Barber. Nor has Dr. Hooper cited applicable caselaw to establish that a breach of contract similar to the breach he alleges by Columbus can be the underlying wrong upon which a civil conspiracy can rest. As this Court stated in Beachcroft Properties, LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004):

“Rule 28(a)(10), Ala. R.App. P., requires the appellant to cite relevant authority in support of its arguments. This is so, because ‘ “it is neither our duty nor function to perforin all the legal research for an appellant.” ’ Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). ‘Nor is it the function of the appellate courts to “make and address legal arguments for a party based on undelineated propositions not supported by sufficient authority or argument.” ’ Pileri Indus., Inc. v. Consolidated Indus., Inc., 740 So.2d 1108, 1110 (Ala.Civ.App.1999) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)). Authority supporting only ‘general propositions of law’ does not constitute a sufficient argument for reversal. Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997).”

Because Dr. Hooper has failed to demonstrate that civil conspiracy can be based upon a breach of contract as the underlying wrong, we do not address that claim. To the extent the summary judgment disposed of that claim, we affirm it.

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s summary judgment with respect to the claims of willful and wanton conduct and the civil-conspiracy claim, but we reverse it with respect to the breach-of-contract claim, and we remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . This case was originally assigned to another Justice; it was reassigned to Justice Parker.


author:
MURDOCK, Judge.
     BRYAN, Judge,

text:
    STATE OF ALABAMA DEPARTMENT OF REVENUE v. HOOVER, INC.
    2030402.
    Court of Civil Appeals of Alabama.
    March 18, 2005.

      Troy King, atty. gen.; Henry Chappell, deputy atty. gen., and chief counsel, Department of Revenue; and Margaret Johnson McNeill and J. Wade Hope, asst, attys. gen., and asst, counsel, Department of Revenue, for appellant.
    Blake A. Madison and David E. Rains of Tanner & Guin, LLC, Tuscaloosa; and Bruce P. Ely of Bradley Arant Rose & White, LLP, Birmingham, for appellee.
    Lorelei A. Lein, staff atty., Alabama League of Municipalities; and Mary Pons, staff atty., Association of County Commissions of Alabama, for amici curiae Alabama League of Municipalities and the Association of County Commissions of Alabama, in support of the appellant.
   MURDOCK, Judge.

The State of Alabama Department of Revenue (“the Department”) appeals from a judgment entered in favor of Hoover, Inc., ordering the Department to refund Hoover’s payment of sales taxes.

Hoover is a Tennessee corporation engaged in the quarrying and retail sale of crushed stone and other products in Alabama and Tennessee. Hoover operates three locations in Alabama; one of its quarries is located in Colbert County. The Colbert County quarry has been in operation for 25 years and, depending on the season, employs 30 to 40 employees with an annual payroll of $1,500,000.

During the years 1996 to 1999, Hoover sold crushed stone from the Colbert County quarry to local governmental entities of Mississippi. Hoover did not collect Alabama sales taxes from those sales. On October 11, 2000, the Department entered a final state sales tax assessment against Hoover for the period of July 1996 through June 1999. On October 27, 2000, Hoover paid the final assessment, under protest, in the total amount of $160,306.95.

Hoover appealed the final assessment to the Colbert Circuit Court, arguing that the practice of exempting sales to Alabama instrumentalities and municipalities from the sales tax, while imposing the sales tax on sales to Mississippi governmental entities, violated the Commerce Clause of the United States Constitution. Hoover relied on § 40-23-4(a)(17), Ala.Code 1975, which exempts from the sales tax the “gross proceeds of sales of tangible personal property ... which the state is prohibited from taxing under the Constitution or laws of the United States.... ”

The Department moved for a summary judgment, arguing that although the gross proceeds of sales of tangible personal property to the State of Alabama and to Alabama counties and municipalities are exempted from the sales tax, it was not unconstitutional to charge Mississippi governmental entities the sales tax when the out-of-state governmental entities took delivery of the goods in Alabama. Neither party submitted evidentiary materials in support of or in opposition to the Department’s summary-judgment motion. On September 11, 2001, the court granted the Department’s motion for a summary judgment, and Hoover timely appealed to our Supreme Court.

On appeal, Hoover argued that the taxation scheme was facially discriminatory against interstate commerce and “fault[ed] the Department for failing to offer any proof indicating that its taxation of out-of-state governmental entities is in any way compensatory for taxes local Alabama governments do not pay.” Hoover, Inc. v. State Dep’t of Revenue, 833 So.2d 32, 34 (Ala.2002) (“Hoover I”). The Supreme Court agreed, stating:

“Because at trial the Department has the burden of proof to justify a law that on its face discriminates against interstate commerce, the trial court erred in entering a summary judgment in favor of the Department on a record where the Department offered no evidentiary justification for the discriminatory impact.”

Hoover I, 833 So.2d at 36. The Supreme Court reversed the trial court’s judgment and remanded the case for further proceedings.

On August 28, 2003, the trial court held an evidentiary hearing. On September 10, 2003, the trial court found:

“At the evidentiary hearing, testimony was offered from George Bright, with Hoover, Inc., and from Dan Lawrence, who performed the audit in question. Evidence suggested that sales were made by Hoover, Inc., to municipalities in the State of Mississippi, some of which were delivered to the municipality and some of which were picked up by the municipality. The Department imposed sales tax on those transactions where the gravel was picked up by the municipality.
“Although rationalizations for the disparaging treatment conceivably exist, the Department offered no evidence, which would justify the facially discriminatory scheme of taxation.”

The trial court found that the taxation scheme was unconstitutional as applied to Hoover’s transactions with the out-of-state governmental entities, and it ordered the Department to refund the sales tax and interest Hoover had paid under protest. The Department appeals.

Though phrased as a grant of regulatory power to Congress, the Commerce Clause is understood to have a “ ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Oregon Waste Sys., Inc. v. Department of Envt’l Quality of Oregon, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). The United States Supreme Court has explained that the first step in analyzing any law subject to judicial scrutiny under the negative aspect of the Commerce Clause is to determine which of two categories it falls within, namely, whether it “ ‘regulates evenhandedly with only “incidental” effects on interstate commerce,’ ” or whether it “ ‘discriminates against interstate commerce.’ ” Oregon Waste Sys., Inc., 511 U.S. at 99, 114 S.Ct. 1345 (quoting Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)). The former category involves situations “where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade.” City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). In those cases the United States Supreme Court has adopted “a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 [ (1970) ].” Id. As to the latter category, the term “discrimination” means “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Sys., 511 U.S. at 99, 114 S.Ct. 1345 (citing Hughes v. Oklahoma, 441 U.S. at 344 n. 6, 99 S.Ct. 1727). “[WJhere simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.” City of Philadelphia, 437 U.S. at 624, 98 S.Ct. 2531.

Our consideration of this case, however, is governed by the Alabama Supreme Court's decision in Hoover I. That decision not only forecloses any argument as to whether the tax scheme at issue involves a discrimination against economic interests that implicates the ■ Commerce Clause, it forecloses any argument that the law at issue falls within the former of the two above-described categories.

As in Oregon Waste Systems, because the tax scheme at issue has been determined to fall within the latter of the two above-described categories, “the virtually per se rule of invalidity provides the proper legal standard here, not the Pike balancing test. As a result, the [tax scheme] must be invalidated unless [the Department] can ‘sho[w] that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.’ ” 511 U.S. at 100-01, 114 S.Ct. 1345 (quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 278, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988)).

Hoover argues that the Department has not demonstrated what is known as a “compensatory tax scheme.” The United States Supreme Court has explained the concept of a “compensatory tax” as follows:

“Though our cases sometimes discuss the concept of the compensatory tax as if it were a doctrine unto itself, it is merely a specific way of justifying a facially discriminatory tax as achieving a legitimate local purpose that cannot be achieved through nondiscriminatory means.... Under that doctrine, a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and ‘substantially similar’ tax on intrastate commerce does not offend the negative Commerce Clause.”

Oregon Waste Sys., 511 U.S. at 102-03, 114 S.Ct. 1345.

It is true that demonstrating a “compensatory tax defense” would be one way of justifying the difference in treatment of out-of-state governmental entities and instate governmental entities in this case. Indeed, in Hoover I, the Alabama Supreme Court acknowledged the existence of that defense in an appropriate case and commented on the elements that must be shown in order to support that defense. That does not mean that such a defense would be the only possible justification for a difference in treatment of out-of-state governmental entities and in-state governmental entities. We accept, for purposes of this opinion, Hoover’s position that such a defense is not applicable in this case. Nonetheless, we hold that the Department satisfied the Supreme Court’s directive in Hoover I, to justify the different treatment of in-state and out-of-state governmental entities.

Alabama imposes a sales tax on sales to out-of-state, nongovernmental entities that take delivery of products within the state of Alabama. Likewise, Alabama imposes a sales tax on sales to out-of-state, governmental entities that take delivery of products within the state of Alabama. Alabama imposes a sales tax on all sales to instate, nongovernmental entities that take delivery of products within the state of Alabama. Alabama does not, however, impose a sales tax on sales to instate, governmental entities, i.e., the State of Alabama and its political subdivisions, that take delivery of products within the state of Alabama. As to the in-state, governmental entities upon which the sales tax is not imposed, the Department offers the following justification:

“The sales tax exemption mitigates the administrative costs of an Alabama governmental entity having to pay sales tax to the State, and then having the State refund and disburse a portion, if any, of the tax right back to the Alabama entity to fund various governmental functions. This is an unnecessary step, as it is simpler to just exempt the Alabama entities from having to pay the sales tax in the first place.”

We believe this is a logical, and reasonable, justification. We do not read the Commerce Clause, nor any of the cases cited to us by Hoover or discussed by our Supreme Court in Hoover I, as requiring a contrary conclusion in the context presented here.

The State of Alabama imposes a sales tax on sales of products by Hoover to all in-state and out-of-state entities, equally. The only exception to this rule is a limited exception for sales to the State itself and to its political subdivisions. The State logically and reasonably argues that it should not be required to incur administrative costs merely to collect from itself and from its political subdivisions moneys that, if left untaxed, would remain directly available to fund governmental functions. If Hoover’s position prevails, the collected funds will only be available to fund governmental functions after the State has incurred the administrative cost to collect those moneys and then return them to itself and to the other governmental entities from which the moneys came in the first place. We have been cited to no case requiring a state to tax itself and its own governmental entities in this manner in order to satisfy the Commerce Clause. Based upon the foregoing, the judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment in favor of the Department.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and THOMPSON, J., concur.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

As a preamble to my dissent, I feel compelled to state that I do not believe that the Commerce Clause was implicated in this case. Hoover sold the product to the Mississippi governmental entities within the state of Alabama, and the Mississippi governmental entities took delivery of the product from Hoover within the state of Alabama. Consequently, those transactions were entirely intrastate. Therefore, those transactions did not involve interstate commerce. Because those transactions did not involve interstate commerce, I do not believe they implicated the Commerce Clause.

However, it is my belief that the holding of the Alabama Supreme Court in Hoover, Inc. v. State Department of Revenue, 833 So.2d 32, 35 (Ala.2002)(“Hoowr I”), wherein the Court stated that the Department “had the burden of establishing a defense to a facially discriminatory tax scheme” presupposed that those transactions did implicate the Commerce Clause. Thus, under the law-of-the-case doctrine, this court is foreclosed by that decision of the Supreme Court from holding that the transactions at issue in this case did not implicate the Commerce Clause. See Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (“According to the doctrine of the law of the case, ‘whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ ”) (quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)).

Because I believe that the Supreme Court’s decision in Hoover I precludes this court from holding that the Commerce Clause is not implicated, I respectfully dissent solely on the ground that I do not believe that the Department of Revenue “offered ... evidentiary justification for the discriminatory impact.” 833 So.2d at 36. The only references in the record to the justification of the sales tax are contained in the Department’s argument section in its memorandum in support of its motion for a summary judgment; in its motion to alter, amend, or vacate the judgment; and in an argument made orally to the trial court during a hearing.

The Department failed to present any evidence, through affidavit, testimony, or documents, justifying the “discriminatory impact” of the sales tax. Indeed, the language quoted by the majority as the justification for the sales tax is taken from a paragraph in the argument section of the Department’s brief to this court. “However, the unsworn statements of counsel are not considered evidence. American Nat’l Bank & Trust Co. v. Long, 281 Ala. 654, 207 So.2d 129 (1968).” Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000). See Bamberg v. Bamberg, 441 So.2d 970 (Ala.Civ.App.1983) (stating that arguments of counsel are not evidence that will justify a preliminary injunction).

Accordingly, the Department’s argument cannot be considered “evidentiary justification” for overturning the trial court’s amended order, which found that “the Department offered no evidence, which would justify the facially discriminatory scheme of taxation.”

For the foregoing reasons, I must dissent.

      . This case was originally assigned to another judge on this court; it was recently reassigned to Judge Murdock.

      . Section 40 — 23—4(a)(l 1), Ala.Code 1975, exempts from the sales tax the gross proceeds of the sales of tangible personal property to the State of Alabama and to Alabama counties and municipalities.

      . In Pike v. Bruce Church, Inc., the Supreme Court stated:
      “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”
      397 U.S. at 142, 90 S.Ct. 844.

      . In their amicus curiae brief to this court, the Alabama League of Municipalities and the Association of County Commissions assert that the surrounding states of Mississippi, Tennessee, and Georgia tax governmental and nongovernmental, in-state and out-of-state, entities in the same manner as does the State of Alabama.

      . Referencing the Supreme Court's decision in Hoover I, the dissent argues that the trial court's judgment must be affirmed on the ground that the State failed to present evidence in support of its stated justification for the sales-tax exemption at issue. The issue raised on appeal in Hoover I, however, was whether the above-discussed compensatoiy-tax defense was viable. Specifically, "Hoover fault[ed] the Department for failing to offer any proof indicating that its taxation of out-of-state governmental entities is in any way compensatory for taxes local Alabama governments do not pay.” Hoover I, 833 So.2d at 34. We do not construe the Supreme Court's decision as dictating that a compensatoiy-tax defense is the only justification that could be shown by the Department on remand or as negating the possibility of the establishment of some defense that might not require testamentary or other evidence of facts beyond those of which judicial notice could be taken. Cf. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 112 (Ala.1998) (noting that legislation should be upheld in the face of an equal-protection challenge so long as “ ' "it is evident from all the considerations presented to [the legislature], and those of which [the court] may take judicial notice,” ' " that the challenge is due to fail (quoting Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 674, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981)) (emphasis added)).
      “The principle is universal that legislation must be taken to be valid unless the contrary is made clearly to appear. Reid v. State of Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108 [ (1902) ]; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 489, 121 A.L.R. 283 [(1902)]. The principle is stated in the latter case, by Justice Gardner, as follows:
      “ 'Or to state it differently, all that the legislature is not forbidden to do by the organic law, state or federal, it has full competency to do. And in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to. sustain rather than strike down the enactment of a co-ordinate branch of the government. All of which is embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is viola-tive of the fundamental law.’ ”

        James v. Todd, 267 Ala. 495, 505, 103 So.2d 19, 27 (1957).
      In Hoover I, the Supreme Court concluded that the Department has "the burden of establishing a defense to a facially discriminatory tax scheme.” 833 So.2d at 35 (emphasis added). We believe for the reasons stated in the text that it has done so.

      . In a responsive pleading, the Department did present a certified copy of a confidential audit report of Hoover. However, the confidential audit report does not purport to establish any justification for the discriminatory impact of the sales tax. It was apparently presented for the purpose of convincing the trial court that interstate commerce was not involved in the transactions between Hoover and the Mississippi governmental entities.