author: STUART, Justice. COBB, Chief Justice SEE, Justice MURDOCK, Justice

text:
    Thomas O’Troy KILLINGS v. ENTERPRISE LEASING COMPANY, INC.
    1070816.
    Supreme Court of Alabama.
    Nov. 21, 2008.

      John F. Halcomb and Benjamin T. Lar-kin of Donald W. Stewart, P.C., Bessemer, for appellant.
    Jonathon R. Law and Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, for appellees.
   STUART, Justice.

After Thomas O’Troy Killings was injured in an automobile accident in May 2004, he sued in the Mobile Circuit Court the manufacturer of the van he was driving at the time of the accident and various other entities that had performed maintenance on that van. Enterprise Leasing Company, Inc., owned the van, and when it sold the wrecked van for scrap, Killings added Enterprise Leasing as a defendant, claiming that it had negligently allowed evidence crucial to his pending action against the other defendants to be destroyed. After the other defendants were dismissed from the case, the trial court entered a summary judgment in favor of Enterprise Leasing, and Killings appealed. We reverse and remand.

I.

On May 11, 2004, Killings was driving a 2001 Ford E-150 van on behalf of his employer, CBIZ Network Solutions, LLC, when the van lost its right rear wheel while traveling westbound on 1-10 in Mobile. The loss of the wheel caused to van to leave the roadway, and, in the ensuing accident, Killings suffered injuries including a broken clavicle and a broken thumb.

Following the accident, the wrecked van, which CBIZ had been leasing from Enterprise Leasing, was taken to Duke’s Garage in Mobile. Several days later, Enterprise Leasing had the van moved to Cockrell’s Body Shop in Theodore. On June 21, 2004, Shane Lucado, an attorney retained by Killings, telephoned Enterprise Leasing to request that the van be preserved for investigative purposes. A follow-up letter sent by Lucado to Enterprise Leasing the next day memorialized that conversation, stating:

“Thank you for taking the time to speak with me yesterday. As you are aware, the vehicle in which Mr. Killings was riding in at the time of his injuries is very important to our investigation. Therefore, as I stated to you during our conversation, I would like to inspect the vehicle on July 2, 2004.
“Additionally, let me take this opportunity to cover the things I need to cover with regard to the vehicle. I ask that you please do not change, modify, discard, destroy, alter, sell, or remove this vehicle from Cockrell’s Body Shop without first giving me notice of [your] intentions. If it becomes necessary for you to change, modify, destroy, or alter the vehicle in any way, please notify me immediately so that I can make arrangements to preserve the evidence needed in my investigation. If the subject vehicle is changed in any manner which compromises the integrity of my investigation, you may be liable for negligent spoliation of evidence under Alabama law. See Brown Electro Mechanical Systems, Inc. v. Thompson Engineering, et al., [848 So.2d 238] (Ala.2002).”

Subsequently, on July 2, 2004, Lucado and A.E. Carden, a mechanical engineer he had hired, visited Cockrell’s Body Shop to inspect the van. On July 16, 2004, Lucado sent Enterprise Leasing the following letter, notifying it that further testing would likely be needed and again requesting that the van be preserved:

“Please be advised that we need to perform destructive testing on the van Mr. Killings was driving at the time of his accident on May 11, 2004. This testing may take several months to conduct. As such, we need to keep the van in its present condition. We ask that Enterprise Leasing not change, modify, discard, destroy, alter, sell, or remove this vehicle from Cockrell’s Body Shop without first giving me notice of its intentions. If it becomes necessary for Enterprise Leasing to change, modify, destroy, or alter the vehicle in any way, please notify me immediately so that I can make arrangements to preserve the evidence needed in my investigation. If the subject vehicle is changed in any manner which compromises the integrity of my investigation, you may be liable for negligent spoliation of evidence under Alabama law. See Brown Electro Mechanical Systems, Inc. v. Thompson Engineering, et al., [848 So.2d 238] (Ala.2002).
“Should you have any questions, please feel free to contact me.”

Shortly thereafter, Lucado spoke with Jason Leone, a claims representative from Cambridge Integrated Services, which was representing Enterprise Leasing in connection with the accident. In an affidavit, Lucado recalled that conversation as follows:

“Mr. Leone said that he would like to have the van inspected. I told Mr. Leone that it would be fíne to inspect the van, but that no destructive testing could be done. Mr. Leone assured me that no destructive testing would be done and that the van would not be moved without first letting us know. During the conversation, I explained that we were investigating the cause of the axle breaking, that we had inspected the van and that we were investigating to determine whether there was a manufacturing defect in the wheel bearing or whether the van was improperly maintained or serviced. I told Mr. Leone that it could take several years before doing destructive testing because any potential defendants would have to be identified before that testing could occur. I asked Mr. Leone what Enterprise’s role was in the maintenance and service of the vehicle and explained that Enterprise did not seem to be a target as a defendant. During the conversation, Mr. Leone assured me that the van would stay right where it was and would not be moved without calling first and indicated that there would be no problem leaving the van at Cockrell’s. I then received a letter from Mr. Leone indicating that an engineer would be inspecting the van in early August 2004.”

On May 10, 2006, Killings sued Ford Motor Company (the manufacturer of the van), Dobbs Mobile Bay, Inc., d/b/a Tread-well Ford (a Ford dealership that had performed maintenance on the van), Firestone Tire & Service Center (an automobile-repair shop that had also performed maintenance on the van), BFS Retail and Commercial Operations, LLC (the corporate parent of Firestone Tire & Service Center), Bridgestone Americas Holding, Inc. (the corporate parent of BFS Retail and Commercial Operations, LLC), and various other fictitiously named parties in the Mobile Circuit Court. Killings’s lawsuit included a product-liability claim made pursuant to the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”), a breach-of-warranty claim, and various negligence and wantonness claims. The discovery process ensued, during which the trial court issued protective orders at the request of both Ford and the Firestone defendants prohibiting the parties, their representatives, or any other persons from disposing of or materially altering the subject van. Nevertheless, on November 27, 2006, Enterprise Leasing, apparently unaware of those protective orders and without giving notice to any of the parties, had the van transferred to Man-heim Auto Auction in Mississippi where it was sold for scrap and subsequently destroyed. On approximately December 6, 2006, the parties discovered that the van had been moved and destroyed.

On March 16, 2007, Killings amended his complaint to include third-party spoliation claims against Enterprise Leasing and Cockrell’s Body Shop. The original defendants then all moved to dismiss the claims against them and, on March 23, 2007, Killings agreed to dismiss its claims against all the original defendants except Ford. On June 15, 2007, a hearing was held, after which the trial court dismissed the claims against Ford and Cockrell’s Body Shop, leaving only the spoliation claim against Enterprise Leasing to be resolved.

On December 28, 2007, Enterprise Leasing moved for a summary judgment, arguing that it had no duty to preserve the van, especially for a period exceeding two and a half years, that it had no knowledge that there was pending litigation involving the van, and that the van was not vital to Killings’s case. The trial court scheduled a hearing on the motion for January 11, 2008. On January 9, 2008, Killings filed his response to Enterprise Leasing’s motion and moved the trial court to continue the scheduled hearing. On January 11, 2008, Enterprise Leasing moved the trial court to strike Killings’s response. The January 11, 2008, hearing was ultimately held as scheduled, and, at its conclusion, the trial court entered an order granting Enterprise Leasing’s motion for a summary judgment without stating its rationale.

On February 10, 2008, Killings filed a motion to alter, amend, or vacate the trial court’s judgment, arguing that the trial court had erred both by entering a summary judgment in favor of Enterprise Leasing and by failing to continue the hearing on Enterprise Leasing’s summary-judgment motion either on the basis of Rule 56(c)(2), Ala. R. Civ. P., which requires a hearing on a summary-judgment motion to be held at least 10 days after that motion is served, or pursuant to Rule 56(f), Ala. R. Civ. P., which provides for a continuance so that the opposing party can obtain additional evidence. On March 11, 2008, the trial court denied Killings’s motion, and, on March 14, 2008, Killings filed his notice of appeal to this Court.

II.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

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

III.

In Smith v. Atkinson, 771 So.2d 429, 432 (Ala.2000), this Court recognized that general principles of negligence law afford an Alabama plaintiff a remedy when evidence crucial to that plaintiffs case is lost or destroyed through the acts of a third party. We further explained how a claim of spoliation of evidence against a third party fit within the negligence framework:

“As in all negligence actions, the plaintiff in a third-party spoliation case must show a duty to a foreseeable plaintiff, a breach of that duty, proximate causation, and damage. Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994). We announce today a three-part test for determining when a third party can be held liable for negligent spoliation of evidence. In addition to proving a duty, a breach, proximate cause, and damage, the plaintiff in a third-party spoliation case must also show: (1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiffs pending or potential action. Once all three of these elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation; the defendant must overcome that rebuttable presumption or else be liable for damages.”

Smith, 771 So.2d at 432-33.

The trial court did not state for the record its rationale for entering a summary judgment in favor of Enterprise Leasing; however, in its motion for a summary judgment, Enterprise Leasing argued that Killings’s third-party spoliation claim failed all three additional prongs of the Smith test. In their briefs to this Court, both parties primarily focus on whether Enterprise Leasing had a duty to preserve the wrecked van, but they nevertheless address all three prongs of the Smith test. Accordingly, we will consider all three prongs in turn.

In regard to whether it had actual knowledge of litigation involving the wrecked van, Enterprise Leasing does not, on appeal, deny that it had knowledge of the action filed by Killings; rather, it argues that Killings failed to present substantial evidence of that fact. Specifically, Enterprise Leasing argues that Killings submitted no evidence in opposition to its motion for a summary judgment indicating that Enterprise Leasing was ever informed that an action involving the wrecked van had been filed at any time during the approximately two-and-one-half-year period between the date of the accident and the date the wrecked van was sold. However, Enterprise Leasing overlooks the fact that Alabama law requires only that the accused spoliator have “actual knowledge of pending or potential litigation.” Smith, 771 So.2d at 432 (emphasis added). Even if we accept that Enterprise Leasing had no actual knowledge of Killings’s action, it is undisputed that Enterprise Leasing had actual knowledge that there was the potential for litigation involving the wrecked van; the two letters Lucado sent to Enterprise Leasing in June and July 2004 are conclusive evidence of that fact. Moreover, although Enterprise Leasing highlights the lack of communication by Killings after the period immediately following the accident, Killings submitted evidence indicating that Enterprise Leasing was apprised early on that the process might take “several years.” See affidavit of Shane Lucado, quoted supra. Thus, Killings has established, at the very least, that a genuine issue of material fact exists on this point.

We next turn to whether Enterprise Leasing had a duty to preserve the wrecked van. In Smith, we recognized that a third party has no general duty to preserve evidence; however, we recognized that such a duty may arise if: 1) the third party voluntarily assumes the duty to preserve evidence; 2) the third party agrees with the plaintiff that it will preserve the evidence; or 3) the plaintiff makes a specific request to the third party to preserve the evidence. 771 So.2d at 433. In the present case, Killings argues that a duty was established in both of the latter two ways — Enterprise Leasing agreed with Killings that it would preserve the wrecked van and Killings made a specific request to Enterprise Leasing to do so.

In an affidavit filed in response to Enterprise Leasing’s summary-judgment motion, Killings’s attorney, Shane Lucado, swore that, during a conversation with Enterprise Leasing’s claims representative, “[the representative] assured me that the van would stay right where it was and would not be moved without calling first.” Additionally, two letters sent to Enterprise Leasing by Killings’s attorney also requested that the wrecked van be preserved and stated that “[i]f it becomes necessary for Enterprise Leasing to change, modify, destroy, or alter the vehicle in any way, please notify me immediately so that I can make arrangements to preserve the evidence needed in my investigation.”

Enterprise Leasing argues that Killings’s request to preserve the wrecked van was insufficient to create a duty because the request was not accompanied by an offer to pay the cost or otherwise bear the burden of preservation. See Smith, 771 So.2d at 433 (“ ‘The specific request to preserve must be accompanied by an offer to pay the cost or otherwise bear the burden of preserving. We do not think a tort duty to preserve should be created simply by someone specifically requesting a third party to preserve something.’ ” (iquoting Johnson v. United Servs. Auto. Ass’n, 67 Cal.App.4th 626, 638, 79 Cal.Rptr.2d 234, 241 (1998))). Killings responds that his attorney did offer to bear the burden of preservation when he stated that he would “make arrangements to preserve the evidence needed in [his] investigation” if it became necessary “for Enterprise Leasing to change, modify, destroy, or alter the vehicle in any way.” However, it is ultimately unnecessary for us to determine whether Killings’s request is viewed as including an offer to bear the burden of preservation because Enterprise Leasing has not refuted the other evidence put forth by Killings indicating that it agreed to preserve the wrecked van. By making that agreement, Enterprise Leasing assumed the duty of preserving the van.

Once Enterprise Leasing assumed that duty, it is ultimately of no import that approximately two and a half years passed between the date of the accident and the date the van was sold. Enterprise Leasing emphasizes this fact throughout its brief to this Court, arguing that it had no contact from Killings throughout most of that period and that it is too onerous a burden for one to reasonably expect a third party to preserve evidence for that length of time. However, as discussed above, the evidence indicates that Enterprise Leasing was apprised early on that the process might take “several years” and that Enterprise Leasing nevertheless agreed that “the van would stay right where it was and would not be moved without calling first.”

Moreover, Enterprise Leasing initially had no responsibility or duty whatsoever to preserve the wrecked van after the accident. See Smith, 771 So.2d at 433 (“If the third party does not wish to take responsibility for evidence, it can decline the responsibility, shifting the risk of loss back to the plaintiff.”). As a corollary to that principle, Enterprise Leasing could have rid itself of that duty even once it had assumed it by notifying Killings that it wished to do so. It could not, however, unilaterally decide to shed itself of that assumed duty without even attempting to provide any notice to Killings, regardless of the length of time or the burden involved.

Last, we consider whether the missing evidence was vital to Killings’s underlying action. Among the evidentiary material accompanying Killings’s response to Enterprise Leasing’s motion for a summary judgment was an affidavit from A.E. Carden, the mechanical engineer who examined the wrecked van with Killings’s attorney in July 2004. In that affidavit, Carden stated:

“I was retained by M. Shane Lucado, attorney for Thomas Killings for the purpose of determining the cause of Mr. Killings accident that occurred in Mobile on May 11, 2004. On July 2, 2004,1 met Mr. Lucado at the Cockrell Body Shop [sic] in Theodore, Alabama, for the purpose of inspecting the vehicle involved in this accident, a Ford van, VIN 1FTRE14W01HB71346, Alabama License Plate 2B6705L. Among other things, I visually inspected the portions of the real' axle that [were] readily visible, took several photographs, and samples. I also read the accident report. Mr. Lucado had the wheel-tire which had separated from the vehicle. I subsequently prepared a preliminary reported for Mr. Lucado (see copy attached). I am of the opinion that this accident resulted from a major failure of the right rear axle of the van, which caused the right rear tire and wheel to separate from the vehicle, resulting in loss of control and caused the vehicle to roll over. The cause of this failure (whether by improper or defective design, manufacture or maintenance) could only be determined by further testing which never occurred because the vehicle was disposed of.”

(Emphasis added.) Enterprise Leasing argues that, because Killings removed and presumably retains possession of the right rear wheel, tire, and brake assembly of the wrecked van, he could have continued to pursue his underlying claims; therefore, it concludes, the van itself was not vital to Killings’s action. However, Enterprise Leasing has not supported this argument with any evidence nor has it in any way responded to Carden’s affidavit stating the contrary. Killings has therefore established the existence of a genuine issue of material fact in regard to whether the missing evidence was vital to Killings’s underlying action.

IV.

Enterprise Leasing moved for a summary judgment on Killings’s third-party spoliation claim against it, arguing that it had no knowledge of litigation involving the wrecked van, that it had no duty to preserve the wrecked van, and that the wrecked van was not vital to Killings’s underlying claims. Enterprise Leasing could have shown that it was entitled to a summary judgment by establishing that there was no genuine issue of material fact in regard to any of those three arguments; however, it failed to do so. Killings put forth evidence establishing at least a genuine issue of material fact with regard to each argument; therefore, the summary judgment was erroneous. It is hereby reversed and the case remanded.

REVERSED AND REMANDED.

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

COBB, C.J., and SEE and MURDOCK, JJ., dissent.

COBB, Chief Justice

(dissenting).

The record in this case shows that it is undisputed that no one on Thomas O’Troy Killings’s behalf, including his attorney, ever offered to pay Enterprise Leasing Company, Inc., to store the van in such a way as to preserve it. Nor was Enterprise Leasing kept informed as to whether litigation involving the van was ever filed or the status of the investigation, for over two years after Killings’s initial inspection of the van. This Court has held:

“ ‘The specific request to preserve must be accompanied by an offer to pay the cost or otherwise bear the burden of preserving. We do not think a tort duty to preserve should be created simply by someone specifically requesting a third party to preserve something. Preservation may entail significant burdens.’ ”

Smith v. Atkinson, 771 So.2d 429, 433 (Ala.2000) (quoting Johnson v. United Servs. Auto. Ass’n, 67 Cal.App.4th 626, 627, 79 Cal.Rptr.2d 234, 241 (1998)). Moreover, Killings’s communications to Enterprise Leasing concerning the likelihood of the need for the evidence in question — the van — implied that that need would be outstanding for a period of months rather than two and one-half years. I believe that this summary judgment is due to be affirmed because Killings cannot show that Enterprise Leasing had a “duty,” as defined in Smith, to preserve the evidence in question. Therefore, I respectfully dissent.

SEE, Justice

(dissenting).

I dissent for the reasons stated in my dissent in Smith v. Atkinson, 771 So.2d 429, 438 (Ala.2000) (See, J., dissenting).

MURDOCK, Justice

(dissenting).

I respectfully dissent.

As a preliminary matter, I note that a duty cannot be imposed upon Enterprise Leasing Company, Inc., on the basis of the request made by Thomas O’Troy Killings unless that request was “ ‘ “accompanied by an offer to pay the cost or otherwise bear the burden of preserving [the evidence].””’ 9 So.3d at 1224 (Cobb, C.J., dissenting) (quoting Smith v. Atkinson, 771 So.2d 429, 433 (Ala.2000), quoting in turn Johnson v. United Servs. Auto. Ass’n, 67 Cal.App.4th 626, 627, 79 Cal.Rptr.2d 234, 241 (1998)). In two letters written in the summer of 2004, Killings’s attorney requested that Enterprise Leasing notify Killings before taking any action “to change, modify, destroy, or alter the vehicle in any way” in order that he could make arrangements to preserve any needed evidence in such an event. I see nothing in these requests, or in any other communication made on behalf of Killings, in the way of an offer to pay the expenses of storage, either before or after Enterprise Leasing might find it necessary to “to change, modify, destroy, or alter” the vehicle.

More generally, it is my view that the extended duration of the period between the last communication between the parties in the summer of 2004 and the eventual removal of the van from storage in late November 2006 — a period of approximately two and one-half years — together with the lack of any communication from Killings or his attorney during this extended period, is inconsistent with the continued imposition of a duty upon Enterprise Leasing.

In June 2004, shortly after the accident, Killings’s attorney wrote the first of two letters to Enterprise Leasing. This first letter makes no mention of any time frame during which Enterprise Leasing was being requested not to remove the vehicle from Cockrell’s Body Shop. The second of the two letters, sent on July 16, 2004, stated only that any testing that might be needed “may take several months to conduct.”

According to an affidavit executed by Killings’s attorney, he had a conversation with a representative of Enterprise Leasing shortly after he wrote the July 16, 2004, letter, in which that representative assured the attorney that “the van would not be moved without first letting us know.” Later in the same affidavit, the attorney also recalled that, during that same conversation, he told the representative of Enterprise Leasing “that it could take several years before doing destructive testing because any potential defendants would have to be identified before that testing could occur.” Despite this conversation, the fact remains that Killings did not file an action against Ford Motor Company or any other defendant in relation to his accident until May 10, 2006, almost two years after the last communication with Enterprise Leasing. In addition, another six months passed before Enterprise Leasing had the van transferred to an automobile auction in Mississippi on November 27, 2006. During the approximately two and one-half years following the last communication between Killings’s attorney and Enterprise Leasing, Killings did not communicate with Enterprise Leasing. Among other things, Killings did not inform Enterprise Leasing that a lawsuit finally had been filed, nor did he notify Enterprise Leasing of the protective orders entered by the court in that lawsuit.

Given the particular circumstances of this case — including Killings’s failure ever to offer to pay the expense of storing the van, the particularly long delay of almost two and one-half years between the last communication from Killings’s attorney and the eventual removal of the van from storage by Enterprise Leasing, the failure of Killings to maintain any communication with Enterprise Leasing during this time and, in particular, the failure of Killings to apprise Enterprise Leasing of the fact that Killings had, in fact, finally proceeded with a lawsuit — I believe the trial court correctly concluded that Enterprise Leasing acted reasonably and that it was not under a duty to continue storing the van at the time it eventually decided to remove the van to Mississippi, where it was sold as scrap and destroyed.

Although Killings’s attorney did make a specific request to Enterprise Leasing to preserve the van and Enterprise Leasing, through its representative, did represent that it would leave the van in its present location for an unspecified period, I cannot conclude that any duty arising from these facts should persist after an almost two- and-one-half-year period during which Enterprise Leasing received no further communications from Killings or his attorney and no notice that a lawsuit had ever been filed. In this context, I particularly disagree with the statement in the main opinion that a third party, such as Enterprise Leasing, should, under circumstances such as those pi'esented here, continue to have a duty to preserve evidence “regardless of the length of time or the burden involved.” 9 So.3d at 1223. A majority of states other than Alabama do not extend a cause of action against third parties for spoliation of evidence under any circumstances, see 9 So.3d at 1220-21 n. 4, much less circumstances of the nature presented here.

Having said the foregoing (which is predicated on the viability of the cause of action recognized in Smith v. Atkimon), I would add that I am concerned, as is Justice See, that the benefits of the cause of action recognized by the Court in Smith “are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss.” Smith, 771 So.2d at 441 (See, J., dissenting) (quoting Temple Cmty. Hosp. v. Superior Court, 20 Cal.4th 464, 478, 976 P.2d 223, 233, 84 Cal.Rptr.2d 852, 862 (1999)). In my opinion, this concern is validated by the fact that this cause of action is to be applied to the circumstances presented in a case such as this one.

      . Killings filed a worker's compensation claim against CBIZ that was settled in April 2006. That claim is not involved in this appeal.

      . A transcript of the January 11, 2008, hearing is not in the record; however, Killings states in his appellate brief that, at that hearing, the trial court denied both his motion to continue and Enterprise Leasing’s motion to strike.

      . Enterprise Leasing served its summary-judgment motion on December 28, 2007. When, as required by Rule 6(a), Ala. R. Civ. P., Saturdays, Sundays, and legal holidays (here, New Year's Day) are excluded, the January 11, 2008, hearing was held only nine days after the filing of the motion.

      .Enterprise Leasing argues that this Court should overrule Smith and join the majority of states that do not recognize third-party spoliation claims. In support of its argument, it notes that a California case relied upon by the Smith Court, Johnson v. United Services Automobile Ass'n, 67 Cal.App.4th 626, 79 Cal.Rptr.2d 234 (1998), was subsequently overruled. However, as evidenced by Justice See's dissenting opinion in Smith, this Court was already aware at the time Smith was decided that California no longer recognized the tort of spoliation of evidence either by a party or by a third party. See Smith, 771 So.2d at 440 (See, J., dissenting) (“Several years after a California District Court of Appeal, in Smith v. Superior Court, 151 Cal. App.3d 491, 198 Cal.Rptr. 829 (1984), had become the first court to recognize the tort of intentional spoliation of evidence by a third party, the Supreme Court of California joined the majority of jurisdictions and held that California does not recognize the tort of spoliation of evidence either by a party or by a third party. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 954 P.2d 511, 74 Cal.Rptr.2d 248 (1998); Temple Community Hosp. v. Superior Court, 20 Cal.4th 464, 976 P.2d 223, 84 Cal.Rptr.2d 852 (1999).“). We decline to reconsider Smith at this time.

      . Enterprise Leasing was apparently also served with a subpoena by BFS Retail and Commercial Operations in October 2006, approximately a month before it sold the wrecked van. However, Killings failed to introduce evidence of that subpoena into the record until after the trial court had held a hearing and had ruled on Enterprise Leasing’s summary-judgment motion. This evidence is partially the reason for Killings’s argument on appeal that the trial court erred by denying his motion to .continue the summary-judgment hearing. However, because it is undisputed that Enterprise Leasing had actual knowledge of potential litigation involving the wrecked van, which is all the law requires, it is ultimately irrelevant whether it had knowledge that litigation was actually pending as well. Under these circumstances, the assertion made by Justice Murdock in his dissent that Enterprise Leasing had “no notice that a lawsuit had ever been filed” is, at the least, misleading.

      . Chief Justice Cobb and Justice Murdock, in their dissents, emphasize that Enterprise Leasing had no duty to preserve the wrecked van because Killings never offered to pay it to do so. However, this Court made it clear in Smith that the duty to preserve evidence can be imposed even in the absence of such an offer if a defendant voluntarily undertakes to do so or agrees with the plaintiff that it will do so. See Smith, 771 So.2d at 432 (stating that the duty to preserve evidence can be “imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request” (emphasis added)). Because Enterprise Leasing voluntarily agreed to preserve the wrecked van, it took upon itself the duty to do so, and Killings's failure to offer to pay the associated storage costs is wholly irrelevant.

      . Killings argues that Enterprise Leasing’s complaints about the burden associated with preserving the wrecked van are disingenuous and has submitted an affidavit from the manager of Cockrell's Body Shop indicating that the wrecked van was being stored at no cost to Enterprise Leasing.

      . The main opinion makes mention of a subpoena supposedly received by Enterprise Leasing in October 2006 and contends that, ”[u]nder these circumstances, the assertion made by Justice Murdock in his dissent that Enterprise Leasing had 'no notice that a lawsuit had ever been filed' is, at the least, misleading.” 9 So.3d at 1222 n. 5. The only factual "circumstances” the trial court could properly consider, however, were those presented to it at the time it held a hearing and issued a ruling on Enterprise Leasing’s summary-judgment motion. Serra Chevrolet, Inc. v. Edwards Chevrolet, Inc., 850 So.2d 259, 265 (Ala.2002) (noting that on a motion for a summary judgment " ‘the trial court can consider only the material which is before it at the time of submission of the motion’ ” (quoting Prudential Ins. Co. of America v. Coleman, 428 So.2d 593, 598 (Ala.1983))). In evaluating a summary judgment, this Court is limited to the same evidence that was presented to the trial court before its ruling on the summary-judgment motion. See, e.g., Cleveland v. Central Bank of the South, 574 So.2d 741, 743 (Ala.1990) (stating that this Court “must review only those matters that were before the trial court when it made its decision”). Neither the content of any subpoena that might have been served upon Enterprise Leasing in October 2006 nor any evidence that Enterprise Leasing was even served with a subpoena was before the trial court at the time of its ruling on Enterprise Leasing’s summary-judgment motion. Concomitantly, neither the content of any subpoena nor any evidence as to whether any subpoena was actually served on Enterprise Leasing is part of the record this Court may properly consider on appeal.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Mary Ann JOHNSON and Cheryl Johnson, individually and as next friend of Samuel Johnson, a minor v. Willie L. STRAIN et al.
    1071028.
    Supreme Court of Alabama.
    Nov. 21, 2008.
    Richard A. Lawrence, Montgomery; and Scott Johnson, Jr., Montgomery, for appellants.
    James E. Wilson, Jr., Montgomery, for appellees.
   WOODALL, Justice.

Mary Ann Johnson and Cheryl Johnson, individually and as next friend of Samuel Johnson, a minor, appeal from the trial court’s denial of their motion for a new trial. We reverse and remand.

After Mary Ann Johnson and Samuel Johnson, a minor, were injured in a house fire, Mary Ann and Cheryl Johnson, individually and as next friend of Samuel, filed a personal-injury action against Willie L. Strain and Darryl O. Strain, the owners of the house that was being leased to the Johnsons, and Mendy Strain, the wife of Willie L. Strain. Ultimately, a jury returned verdicts in favor of the Strains, and the trial court entered its judgments accordingly.

On March 11, 2008, the Johnsons filed a motion for a new trial. Relevant to this appeal is what the Johnsons describe as “a juror impropriety issue.” Johnsons’ brief, at 3. In that regard, the motion for a new trial alleged, in pertinent part:

“12. Secondly, one of the venire selected to be on the jury was [R.E.L.]. She was number 132 on the Circuit Clerk’s venire list. She was selected among the first twelve persons to serve. She was not selected as an alternate juror. Two others were the alternates: number 190, [D.D.R.,] and number 225, [M.B.T.]. The alternates ... are believed to have been properly released prior to the case being submitted to the jury-
“13. [R.E.L.] has stated to undersigned counsel, Richard Lawrence (by phone on 2/21/08 and in person on 3/7/08), and also to Scott Johnson, trial co-counsel (in person on 3/7/08), that she was removed as a juror from this case at the close of the case (after sitting through all testimony) and was not allowed to take part in the deliberations of the jury.
“14. The Circuit Clerk’s records show that number 190, [D.D.R.,] and number 225, [M.B.T.,] were the alternate jurors in this case. As noted above, [they] are believed to have been properly removed from the jury prior to the jury beginning their deliberations.
“15. Rule 47 of the Alabama Rules of Civil Procedure addresses the selection of jurors and alternate jurors.
“16. There was no basis for the removal of [R.E.L.] from the jury. Such removal was without the knowledge of the undersigned counsel.
“17. The [Johnsons] had a right to have the case decided by the jury selected. Alabama Constitution 1901, section 11.
“18. The [Johnsons] request that they be allowed to present oral testimony on this issue. The Comments to Rule 59 note that oral testimony may be taken on a motion for a new trial.
“19. Alternatively, should the evidence be that the juror in question in fact took part in the deliberations of the jury but has no memory of doing so, the [Johnsons] allege that a juror of unsound mind took part in deciding the instant case, and that such was not disclosed prior to jury selection. Sanders v. Scarvey, 284 Ala. 215, 218-219, 224 So.2d 247 (1969); § 12-16-150, Code of Alabama, 1975.
“WHEREFORE, the Plaintiffs, Mary Ann Johnson, Cheryl Johnson, individually; and Cheryl Johnson as next of friend of Samuel Johnson, a minor, respectfully pray that this motion be set for hearing for the talcing of testimony and for argument, and that at the conclusion of the hearing that this Honorable Court enter an order granting the Plaintiffs a new trial.”

(Emphasis added.) The day after the motion was filed, the trial court denied it without granting the hearing the Johnsons requested. The Johnsons’ appeal presents a single issue, namely, whether the trial court erred in denying the motion for a new trial without granting the requested hearing.

In Flagstar Enterprises, Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000), this Court stated:

“In general, whether to grant or deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990). However, if a party requests a hearing on its motions for a new trial, the court must grant the request. Rule 59(g), Ala. R. Civ. P. See Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989) (‘[WJhere a hearing on a motion for [a] new trial is requested pursuant to Rule 59(g), the trial court errs in not granting such a hearing.’). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. For example, if an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule. See Rule 45, Ala. R.App. P.; and Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993) (‘failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it “probably injuriously affected substantial rights of the parties” ’).”

See also Unicare, Inc. v. Hood, 823 So.2d 1252, 1253 (Ala.2001) (“This Court has held that when a hearing is requested pursuant to Rule 59(g), the trial court errs in not granting a hearing.”).

The Johnsons unambiguously requested a hearing; therefore, the trial court erred in not affording them an opportunity to be heard on their motion for a new trial. Based upon the record before this Court, we cannot conclude “that there was no probable merit to the motion.” Consequently, we may not affirm the judgments based on the harmless-error rule.

For the foregoing reasons, the judgments of the trial court are reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.


author: MURDOCK, Justice.

text:
    Dan FOX et al. v. CITY OF HUNTSVILLE.
    1051276.
    Supreme Court of Alabama.
    Nov. 26, 2008.

      John R. Campbell, Huntsville, for appellants.
    Michael L. Fees and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for ap-pellee.
   MURDOCK, Justice.

Dan Fox, Ken Guffey, Paul Jones, Phil Kramer, Charlie Lifer, Randy Mearse, Coleman Sanders, Floyd Smith, and Danny Vaughn, police officers for the City of Huntsville Police Department (“the officers”), appeal from a denial of their petition for a common-law writ of certiorari filed against the City of Huntsville (“the City”) in a payroll dispute. We reverse.

I. Facts and Procedural PListmy

At the time of the events in question, the officers were patrol-car police officers. Beginning around January or February 2002, the officers were regularly assigned traffic-patrol duties, which included issuing a certain number of traffic tickets and performing traffic-flow services for funerals in the Huntsville area. In April 2002, the officers filed a grievance against the City asserting that they were performing traffic task force (“TTF”) duties without receiving the mandatory five percent increase in pay that TTF officers receive for performing their special duties.

The chief of police for the City, Compton Owens, responded to the grievance on April 23, 2002, with a written denial, in which he explained that in his view the officers were not entitled to the five percent pay increase because “[e]nforcement of vehicle and traffic laws is a requirement for all police officers without regard to where they are assigned,” whereas TTF officers receive extra pay because they are deemed by Chief Owens to be in a “special assignment capacity” under City of Huntsville Ordinance No. 97-216, § 8.7(A). Section 8.7(A) provides, in pertinent part:

“Police Officers, while nerving at the direction, of the Chief of Police in a, special assignment capacity to Criminal Investigation Division, Internal Affairs Division, Special Response, Bomb Squad, or other comparable assignment as determined by the Chief of Police, shall receive a five (5) percent higher rate of pay than the established rate of pay for the employee(s) concerned.”

(Emphasis added.)

The officers appealed Chief Owens’s decision to the City’s personnel committee (“the personnel committee”), maintaining that, if they were going to be assigned traffic-patrol duties at specified times, they should be considered to be on special assignment and therefore were entitled to receive the same rate of pay as TTF officers. For its part, the City contended that the officers’ grievance constituted an impermissible challenge to a validly adopted ordinance. Section 14.1(B)(1) of the Personnel Policies and Procedures Manual for the City (“the manual”) provides that “[a] grievance shall not be filed to,” among other things, “contest the validity of an adopted, approved ordinance or a properly enacted resolution of the City Council.” City of Huntsville Ordinance No. 94-375 (Personnel Policies and Procedures Manual), § 14.1.

The personnel committee heard arguments, testimony, and accepted written evidence in the course of the grievance proceeding. On February 20, 2003, the personnel committee issued its decision, stating, in pertinent part:

“The Personnel Committee unanimously concludes there is sufficient evidence to support your grievance. Ordinance 97-216 states that Police officers while serving at the direction of the Chief of Police in a Special Assignment shall receive Special Assignment Pay. The Personnel Committee by Ordinance 9[7]-216 does not have the authority to grant you Special Assignment Pay, nor does the Personnel Committee have the authority to grant you any retroactive pay. The Personnel Committee recommends that the Chief of Police re-evaluate his policy of Special Assignment Pay to the Traffic Task Force to make sure it is equitable to those officers who are performing Traffic Task Force Assignments or duties.”

On March 6, 2003, the officers appealed the decision of the personnel committee to the Huntsville City Council (“the city council”), contending that the personnel committee erred in determining that it did not have the power to order the pay increase for the officers. The city council, pursuant to the grievance procedures spelled out in the manual, reviewed all the evidence from the personnel committee grievance hearing and received some additional testimony. The city council issued its decision on December 11, 2003, stating, in pertinent part:

“[T]he City Council, by majority vote on December 4, 2003, modified the decision of the Personnel Committee. The City Council determined that the grievance contests the validity of an adopted, approved ordinance or a properly enacted resolution of the City Council. Ordinance No. 97-216, upon which your grievance is based, gives the Chief of Police the authority and discretion to grant special assignment pay under the circumstances complained of in your grievance. Accordingly, Section 14.1(B)(1) of the Personnel] Policies and Procedures Manual, as amended, bars your grievance.”

There is no statute or ordinance specifying a method of appealing an employment decision by the city council. Accordingly, the officers sought review of the city council’s decision by filing a petition for a common-law writ of certiorari in the Madison Circuit Court on June 8, 2004. The officers contended that the city council had impermissibly substituted its judgment for that of the personnel committee in ruling that their grievance was barred by § 14.1(B)(1) of the manual. Following the submission of briefs and two hearings at which oral argument was presented, the circuit court issued a written decision on April 20, 2006. The circuit court emphasized the limited nature of the review available on a petition for a common-law writ of certiorari, and it agreed with the officers that they were not challenging the validity of Ordinance No. 97-216. The circuit court concluded, however, that the city council “ ‘adopted’ the judgment of the personnel committee rather than substituting its judgment for that entity.” Because “[t]he Personnel Committee denied the petitioning officers’ grievance and the [City] Council affirmed the decision of the Personnel Committee,” the circuit court concluded that it lacked “the statutory authority to quash the decision made by the City Council.” The officers appeal from that decision.

II. Standard of Review

“‘Alabama law is clear that, in the absence of a right of appeal, a party seeking review of a ruling by an administrative agency may petition the circuit court for a common law writ of certiora-ri.’ ” Ex parte Boykins, 862 So.2d 587, 593 (Ala.2002) (quoting State Personnel Bd. v. State Dep’t of Mental Health & Retardation, 694 So.2d 1367,1371 (Ala.Civ.App.1997)). See also Hardy v. Birmingham Bd. of Educ., 634 So.2d 574, 576 (Ala.Civ.App.1994) (explaining that “where an applicable statute provides no right of appeal and no statutory certiorari review, the only means of review is the common law writ of certiorari”).

“ ‘[T]he standard of review for certio-rari limits the scope of review to questions of law and does not extend to review of the weight and preponderance of the evidence.’ Parker v. Reaves, 531 So.2d 853 (Ala.1988). Thus, ‘if there is any legal evidence to support the decision of the lower tribunal, such is conclusive on the reviewing court.’ Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968). In other words, the only question for the reviewing court is ‘whether the evidence will justify the finding [of the lower tribunal] as a legitimate inference from the facts proved regardless of whether such inference would or would not have been drawn by the appellate tribunal.’ Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123, 126, 176 So.2d 483, 485 (1965).”

Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala.1994). Furthermore, because the circuit court’s review on a common-law writ of certiorari was limited to the record before the city council, see, e.g., Sanders, 642 So.2d at 440 n. 4, this Court reviews the circuit court’s decision de novo.

III. Analysis

The officers contend that the circuit court erred in ruling that the city council in effect “adopted” the ruling of the personnel committee. They argue that the city council in fact substituted its own judgment for that of the personnel committee, which the guidelines in the manual specifically prohibit it from doing. The City argues that those same guidelines authorize the city council, by a majority vote, to modify the decision of the personnel committee in whole or in part, which, the City argues, is what the city council did. Ultimately, according to the City, the result reached by the city council was the same as that reached by the personnel committee, so the city council “essentially affirmed the decision of the Personnel Committee.” City’s brief, p. 21.

Section 14.2 of the manual provides the guidelines under which the city council reviews an appeal from the personnel committee:

“The [City] Council shall consider the record on appeal and any supplemental testimony presented at the hearing, together with the arguments of each party made at the hearing, and may question the parties concerning any relevant matter. A majority vote of those members elected to the City Council is required in order to alter a decision of the Personnel Committee. If the City Council is unable, by a majority of those members elected to the [City] Council, to alter the decision of the Personnel Committee, then the decision of the Personnel Committee shall stand unmodified. The [City] Council shall render a decision within fourteen (14) days after the hearing, either upholding the [Personnel] Committee’s decision or modifying it in part or in full. The [City] Council shall state the reason(s) for any modification of the Personnel Committee’s decision and shall give specific instructions, in writing, as to the steps to be taken to carry out its decision.
“The Standard of Review before the City Council shall be whether the record before the Personnel Committee, as it may be supplemented before the [City] Council, contains evidence supporting the findings of the Personnel Committee. Determination of the weight and credibility of the evidence before the Personnel Committee is for the [Personnel] Committee, and not the [City] Council, to decide, but the [City] Council may consider the weight and credibility of testimony actually presented before the [City] Council in rendering any decision on the grievance. The [City] Council may not substitute its judgment for that of the Personnel Committee as long as there is sufficient evidence in the record or in supplemental form to support the Personnel Committee’s findings and decision.”

(Emphasis added.)

It is clear from the quoted portion of § 14.2 of the manual that the city council does possess the authority to amend, by a majority vote, in whole or in part the personnel committee’s decision. It is also clear, however, that the city council’s ability to modify the personnel committee’s decision is limited by the standard of review imposed upon the city council. If sufficient evidence exists in the record to support the finding of the personnel committee, then the city council may not substitute its judgment for that of the personnel committee as to that finding.

The personnel committee explicitly determined that the officers presented sufficient evidence to support their grievance that being assigned traffic-patrol duty at specified times constituted “a special assignment” that should entitle them to receive “special assignment pay.” The personnel committee declined to award the salary-related relief requested by the officers, however, because of its conclusion, as a matter of law, that it had no authority to do so. For its part, the city council concluded that the officers’ grievance did not even fall within the types of grievances allowed under § 14.1(B)(1) of the manual, citing the prohibition in that section of grievances “to contest the validity of an adopted, approved ordinance or a properly enacted resolution of the City Council.”

In actuality, however, the officers were not challenging the validity of § 8.7(A) of Ordinance No. 97-216, which authorizes a five percent pay increase for any police officer placed in a “special assignment capacity” by the chief of police. To the contrary, they were asking that the ordinance be enforced to their benefit. The officers contended that being assigned to traffic-patrol duty at specified times when it is not within the regular duties of a vehicle patrol officer is akin to being on the TTF, a designated “special assignment.”

The circuit court concluded that even though the city council had incorrectly categorized the officers’ grievance as a challenge to the validity of the ordinance, the court had no authority to do anything other than affirm that decision because, it reasoned, the city council had reached the same result as had the personnel committee and therefore, in effect, had “ ‘adopted’ the judgment of the personnel committee rather than substituting its judgment for that entity.” The circuit court erred in this reasoning. Although the personnel committee determined that there was sufficient evidence to support the officers’ grievance, the city council’s modification of the personnel committee’s decision never even addressed this issue and therefore did not implicate the deferential standard of review found in § 14.2 of the manual. (Nor did the city council address the other determination made by the personnel committee, i.e., that it had no authority to grant the officers’ requested relief.) Instead, the city council determined that § 14.1(B)(1) of the manual barred the officers’ grievance altogether.

In other words, although it is true that the city council did not substitute its judgment for that of the personnel committee on the issue whether the officers’ presented sufficient evidence to sustain their grievance, it is true only because the city council did not reach this issue. It did not reach this issue because it mistakenly treated the officers’ grievance as an attempt to contest the validity of an ordinance, which was not permitted as a matter of law, rather than as an attempt to enforce the ordinance, which it plainly was.

A common-law writ of certiorari is available to “correct errors of law apparent on the face of the record.... [T]he only matter to be determined is the quashing, or affirmation, of the proceedings brought up for review.” Jefferson County v. Berkshire Dev. Corp., 277 Ala. 170, 173, 168 So.2d 13, 16 (1964). It was legal error for the city council to foreclose any determination on the officers’ grievance by categorizing it as a challenge to the validity of an ordinance. Once the circuit court reached this conclusion, the proper course of action was to grant the writ and quash the proceedings below because the city council never made a determination about the sufficiency of the evidence concerning the officers’ grievance.

Accordingly, because the circuit court erroneously affirmed the proceedings before the city council, we reverse its judgment and remand the case with the instruction that the circuit court grant the writ to allow the city council to further consider the officers’ grievance.

REVERSED AND REMANDED WITH INSTRUCTIONS.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . As a general rule, TTF officers use motorcycles to perform their duties.

        . Counsel for both sides stipulated in the circuit court that Chief Owens had accepted the recommendation of the personnel committee by limiting TTF officers' pay to the same rate as other police officers' pay.


author: BOLIN, Justice. WOODALL, Justice

text:
    Susan MARTIN v. Mary S. BATTISTELLA.
    1070394.
    Supreme Court of Alabama.
    Nov. 26, 2008.

      Charles R. Gillenwaters, Alexander City, for appellant.
    Thomas A. Radney of Radney & Rad-ney, LLC, Alexander City, for appellee.
   BOLIN, Justice.

Susan Martin, doctor of veterinary medicine, appeals from a summary judgment in favor of Mary S. Battistella, doctor of veterinary medicine. We dismiss the appeal.

Facts and Procedural History

On May 27, 2005, Battistella sold her veterinary-medicine practice in Alexander City to Martin. The sales agreement quoted a purchase price of $345,000; that price included (1) $40,000 for equipment, furniture, and fixtures; (2) $282,000 for intangibles (including “goodwill”); (3) $18,000 for inventory; and (4) $5,000 for a covenant not to compete. The covenant not to compete provided as follows:

“Provided that [Martin] is not in default under this Agreement neither [Battistella], whether as a principal, principal owner, part owner, owner, interest holder, unit holder, stockholder, partner, employee, independent contractors, contractor, agent, or in any other capacity, nor any entity in which [Battis-tella] has an interest, will for a period of five (5) years after the Effective Date, and within a fifteen (15) mile radius of the Facility engage in the operation of a veterinary medical practice or veterinary hospital or otherwise perform veterinary services.”

On June 12, 2007, Battistella filed a declaratory-judgment action, naming Martin as a defendant and seeking a determination of the enforceability of the noncom-petition clause because she wanted to open a veterinary health resort. On July 18, 2007, Martin filed an answer along with a counterclaim alleging that Battis-tella would be in breach of the sales agreement if she opened a new veterinary practice because Martin would no longer receive the “goodwill” of the business. Martin later amended her counterclaim, asking the court to restore her to the condition she would have occupied had Battis-tella not breached the sales agreement. Following a hearing, the trial court, on September 12, 2007, entered an order declaring the noncompetition clause unenforceable.

Battistella filed a motion for a summary judgment on Martin’s counterclaim. On October 3, 2007, the trial court held a hearing on Battistella’s summary-judgment motion. On October 10, 2007, the trial court entered a summary judgment in favor of Battistella on Martin’s counterclaim. The trial court’s order provided, in pertinent part:

“[Martin] now alleges that [Battistel-la’s] opening of a competing business is a breach of the contract in another manner. Specifically, [Martin] states that she purchased the goodwill and intangibles from [Battistella] and that [Battis-tella] has breached the agreement by the potential opening of her new business which will reduce the value of the goodwill and intangibles that [Martin] purchased. She is requesting monetary damages for the alleged breach.
“[Martin’s] claim is without merit. The law does not allow a restraint of a professional’s ability to practice his/her profession. The Court cannot allow economic damages against [Battistella] for her lawful practice of veterinary medicine. As stated in Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991), the law does not allow a restraint on the practice of a profession on a monetary basis. A breach of contract claim dealing with the sale of goodwill and intangibles in this manner would simply be a covenant not to compete called by another name.”

On October 25, 2007, Martin filed a motion to alter, amend, or vacate the judgment, arguing that the trial court erred in applying Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991), to the facts in this case. Martin also contended that the trial court failed to address the $5,000 she had paid Battistella in exchange for Battistella’s agreement not to compete. She also included testimony from Battistel-la that Battistella had removed from the clinic after the sale certain items valued at $2,500 that should have been included in the sale. On November 2, 2007, the trial court granted Martin’s motion in part, ordering that Battistella repay Martin the $5,000 Martin had paid for the unenforceable covenant not to compete and that she pay Martin $2,500 for breaching the contract by removing items from the practice that were part of the sales agreement. Martin appeals from that portion of the summary judgment entered in favor of Battistella.

Standard of Revieiv

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’ ”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006)).

Discussion

Martin did not appeal from the trial court’s judgment declaring the noncom-petition clause unenforceable. Instead, Martin argues that simply because the noncompetition clause was unenforceable the remainder of the sales agreement was not rendered void. She argues that because Battistella will be operating a competing business, Martin will no longer receive the “goodwill” she paid for under the sales agreement because, she says, Battis-tella’s former patients will go to Battistel-la’s new business.

We note § 8-l-l(a), Ala.Code 1975, provides that “[e]very contract by which anyone restricted from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.” In Friddle v. Raymond, 575 So.2d 1038 (Ala.1991), the parties were veterinarians who were practicing veterinary medicine pursuant to a partnership agreement. One of the partners agreed to sell the other partner his half of the partnership. Under the terms of the sales agreement, the selling partner agreed not to compete with the buying partner in the veterinary-hospital business within six miles of the hospital at which they had operated their practice for a period of three years. The selling partner began to practice within the three-mile area shortly after signing the sales agreement. The buying partner sued and argued on appeal that veterinarians are not “professionals” and are therefore not prohibited by § 8-1-1 from entering into restrictive covenants not to compete. This Court held that veterinarians are “professionals” and stated

“Although the remaining subsections of § 8-1-1 provide for exceptions to the general rule [stated in subsection (a) ], including an exception for the sale of the good will of a business, this Court has stated on numerous occasions that a ‘professional’ cannot fall within these statutory exceptions.... This point is further supported by the Court’s observation that § 8-1-1 expresses the public policy of Alabama that contracts that place a restraint on trade are disfavored “ ‘because they tend not only to deprive the public of efficient service but also tend to impoverish the individual.” ’ ”

575 So.2d at 1040.

In Gilmore Ford,, Inc. v. Turner, 599 So.2d 29, 81 (Ala.1992), this Court defined “goodwill” as follows:

“ ‘Goodwill’ has been defined as the advantage or benefit acquired by a business beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement it receives from constant and habitual customers, on account of its local position, common celebrity, reputation for skill, affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices. See Collas v. Brown, 211 Ala. 443, 100 So. 769 (1924); see, also, 38 Am.Jur.2d Goodwill § 1 (1968). Goodwill is property of an intangible nature and constitutes a valuable asset of the business of which it is a part, unless in a particular instance it is too uncertain and contingent in nature to be appraised. 38 Am.Jur.2d, supra, § 3. It is well settled that goodwill, being property, is transferable and may be bought and sold in connection with the sale of a business; it is not essential, however, that the contract for the sale of a business expressly mention the goodwill of the business. Covenants not to compete that are designed to protect the goodwill of a business being sold imply a sale of the goodwill. 38 Am.Jur.2d, supra, §§ 9, 10; Yost v. Patrick, 245 Ala. 275, 17 So.2d 240 (1944).’ ”

Martin cites Salisbury v. Semple, 565 So.2d 234, 236 (Ala.1990), in support of her position. In Salisbury, one doctor agreed to sell his practice to another doctor. The buying doctor agreed to pay $900,000 in monthly installments over a period of 11 years. The agreement provided that 30% of the purchase price was considered to be payment for the purchase of the goodwill of the practice. The selling doctor agreed not to compete with the existing practice. The buying doctor stopped making payments and filed a declaratory-judgment action seeking a declaration that the purchase agreement was void and unenforceable because it contained a covenant not to compete. The buying doctor did not allege that the covenant not to compete had been violated. Instead, he alleged that the practice of medicine is a profession, that the covenant not to compete was therefore unenforceable, and that, because, he contended, 70% of the purchase price for the purchase agreement was for the covenant not to compete, he was obligated to pay only 30% of the sales price. This Court stated:

“[The buying doctor] admits that the [selling doctor] has not violated the covenant not to compete. Furthermore, [the buying doctor] received [the selling doctor’s] medical practice, the fixtures, the optical business, and the goodwill, as contemplated by the contract. In short, [the buying doctor] has received all the he bargained for. We hold that [the buying doctor] ... is now estopped from refusing to perform his obligation to pay the agreed purchase price under the contract simply because it contains a covenant not to compete. We note that any other result would be particularly inequitable in view of the fact that the covenant not to compete was included in the contract a [the buying doctor’s] request.”

565 So.2d at 236.

Martin argues that as was the case in Salisbury, the remainder of the sales agreement (excluding the noncompetition clause) is enforceable. She argues that because Battistella will breach the contract with regard to the sale of the goodwill of the business when she opens her new clinic, Martin should be allowed to recover from Battistella based on a breach of the sales agreement. Martin contends that Battistella received all that she bargained for, less the $5,000 for the covenant not to compete, and that Battistella’s new clinic will take away business from Martin, who, under the sales agreement, was to receive the “goodwill” of the business for five years.

Battistella argues that Martin’s damages are speculative because, Battistella says, Martin presented no evidence indicating that she would be damaged by Battistella’s new clinic. Battistella contends that Martin has only speculated that she may be entitled to damages once Battistella opens her new clinic and Battistella’s former patients may choose to go to Battistella’s new clinic rather than the clinic Martin purchased from Battistella. Martin argues that Battistella impaired the goodwill of the clinic by building a new clinic and that that portion of the purchase price allocated to goodwill should be the amount of her damages. “Total destruction of the goodwill is not to be presumed from the mere breach of the contract not to compete; hence, it has been held erroneous to base a recovery on an amount representing the portion of the purchase price regarded as having been paid for the goodwill, in the absence of evidence that such amount corresponds with the actual loss sustained.” Annot. 127 A.L.R. 1152 (1940).

In Howard v. Taylor, 90 Ala. 241, 8 So. 36 (1890), the defendant sold the plaintiff his bar and its fixtures, together with the goodwill of the business, an unexpired lease on a house out of which the business was operated, and an agreement by the defendant not to carry on the same business at any other place in town. The defendant then started a competing business, and the plaintiff sued. The trial court declared that among the elements of damages might be loss of profits, if there were evidence from which such amount might be ascertained with reasonable certainty, and the diminution of the value of the property sold. However, this Court held that it was error for the trial court to instruct the jury that the plaintiff was entitled to recover the difference between the value of the fixtures, together with the right to lease the house, and the agreed-upon sales price, because such an instruction was based upon the theory that total destruction of goodwill necessarily resulted from the breach of contract and the incorrect assumption that the mere fact that because the defendant was engaged in the same business in the same town the plaintiff suffered damage to the extent indicated without proof of actual injury and its extent. The Court stated: “[A] violation of the promise not to engage in the same business does not necessarily work the total destruction of the good-will nor deprive plaintiff wholly of its enjoyment and benefit.” 90 Ala. at 245, 8 So. at 38.

In the present case, Martin’s damages are speculative in nature. There is nothing in the record to show that any loss or harm to Martin has occurred, because Bat-tistella has not yet opened her clinic. In her original counterclaim, Martin stated that Battistella’s alleged breach of the sales agreement caused her “significant monetary damages.” However, the only particularized description of those damages appears in Martin’s amended counterclaim, in which she states:

“If this Court declares paragraph # 27 Covenant Not to Compete null and void as requested in Plaintiffs Complaint for Declaratory Judgment, the Good Will purchased by [Martin] from the Plaintiff in the amount of $282,000.00 is a loss.... The market value of the practice is based upon what it will earn in the future, which is based on historic data and page 13 ‘Intangible Assets’ primarily refers to Goodwill, blue sky, etc.... [I]neluded in this is a Veterinary Medical Practice, the market location, continuity of service of place and name, competition or lack of it, low rate of client turnover, reputation for quality medical care, or any other thing that established or particular veterinary practice as ‘the place where it is preferable to do business,’ can be considered contributing to the intangible asset value. Dr. Battistella would be competing against [Martin] at her new address, 8610 Kowaliga Road, Eclectic, Alabama, which is 13.9 miles from Wayside Animal Hospital and within the fifteen mile radius of the Covenant Not to Compete. [Martin] will suffer damage[ ] each time Dr. Battistella provides Veterinarian services to clients of Wayside Animal Hospital that Dr. Battistella sold [Martin] in the Agreement of Sale. This will continue until in the expiration of the Covenant Not to Compete expires on June 30, 2010.”

Martin makes a similar statement in her brief to this Court on appeal:

“Obviously, Dr. Battistella’s new clinic is going to take away business from Dr. Martin. The goodwill Dr. Martin was to receive for five (5) years from Dr. Bat-tistella, while she was not competing with her is now gone. Dr. Battistella’s old clients will go to her new office and reduce the retention of clients.”

Martin’s brief at 21. Thus, Martin argues that she expects to lose business once Bat-tistella opens her facility. However, she has not presented this Court with any evidence to indicate that Battistella’s facility had even opened or that Martin has lost any clients or suffered any monetary damages in anticipation of that opening. In fact, when asked during her deposition whether she had, at that time, “lost any patients or income as a result of Mary’s potential opening,” she responded that she did not know. When asked whether she had suffered significant damage as alleged in her counterclaim, she repeatedly responded that she did not know. From this testimony and the arguments in the briefs, it appears that Martin’s breach-of-contract claim is based on the expectation of a future event. “Ripeness is defined as ‘[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.’ ” Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 353 n. 5 (Ala.2008) (quoting Black’s Laiv Dictionary 1353 (8th ed.2004)). This case has not reached that point as Martin has only speculated as to what her damages may be.

“Damages can be awarded only where they are reasonably certain and not based upon speculation.” Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d 812, 820 (Ala.1988). Accordingly, because Martin’s breach-of-contract claim is not ripe, the trial court was without jurisdiction to review her counterclaim at this time, and the appeal is dismissed.

APPEAL DISMISSED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

WOODALL, J., dissents.

WOODALL, Justice

(dissenting).

As the trial court held, Dr. Battistella may lawfully resume the practice of veterinary medicine. If she chooses to do so, Dr. Martin, as the trial court correctly held, will be entitled to no economic damages as a matter of law. Consequently, I would affirm the summary judgment in favor of Dr. Battistella. Therefore, I respectfully dissent from the dismissal of this appeal.