author: BOLIN, Justice.

text:
    COILPLUS-ALABAMA, INC. v. Johnnie F. VANN and Sirote & Permutt, P.C.
    1080618.
    Supreme Court of Alabama.
    April 16, 2010.
    Rehearing Denied June 18, 2010.

      Clarence L. McDorman, Birmingham, for appellant.
    Robert P. MacKenzie III, Sybil Vogtle Newton, Bryan 0. Balogh, Robin H. Jones, and Kelley M. Tynes of Starnes & Atchi-son LLP, Birmingham, for appellees.
   BOLIN, Justice.

Coilplus-Alabama, Inc., appeals from a summary judgment in favor of Johnnie F. Vann and Sirote & Permutt, P.C., in this legal-malpractice action. We affirm.

Facts and Procedural History

In 1998, Coilplus retained Johnnie F. Vann and the law firm at which he then worked, Sirote & Permutt, to advise it about the issuance of $8,000,000 in bonds (hereinafter referred to as the “1999 bonds”) for the expansion of its Athens steel-manufacturing plant. Vann recommended that the 1999 bonds be issued through the Industrial Development Board of Athens, and he advised Coilplus that the 1999 bonds would qualify as tax-exempt bonds under the rules of the Internal Revenue Service (“the IRS”). At the time the issuance of the 1999 bonds was being discussed, Vann was aware that a tax-exempt-bond issue in the face amount of $5,000,000 had been issued in 1984 for a Coilplus project (hereinafter referred to as the “1984 bonds”) and that the 1984 bonds had not been retired. According to the parties, for small-issue bonds to qualify as tax exempt, the total capital expenditures for the three years before the bonds were issued and the three years after the bonds were issued, combined with the amount of any outstanding bonds and including the bonds to be issued, may not exceed $10,000,000. See 26 U.S.C. § 144. On February 16,1999, an attorney with another law firm sent Vann a letter stating that Coilplus had outstanding bonds that had not been retired — i.e., the 1984 bonds. On February 19, 1999, an employee with The Bank of New York, the trustee for the 1984 bonds, sent Vann documents regarding the 1984 bonds. On March 25, 1999, the 1999 bonds were sold to purchasers.

Later in 1999, the IRS questioned whether Coilplus’s prior capital expenditures as represented in the documents and schedules that accompanied the 1999 bonds, when added to the face amount of the 1999 bonds, exceeded the small-issue amount allowed under 26 U.S.C. § 144. The investigation apparently concerned only whether certain capital expenditures would be counted toward the $10,000,000 cap and was not focused on the 1984 bonds or the effect of the 1984 bonds on the $10,000,000 cap allowed by 26 U.S.C. § 144. Coilplus received a favorable private-letter ruling from the IRS. Vann sent Coilplus a letter on September 20, 2000, informing it of the favorable ruling, along with a copy of the private-letter ruling.

Apparently the IRS continued investigating the 1999 bonds and shifted its focus to whether the issuance of the 1999 bonds in light of the outstanding 1984 bonds violated the $10,000,000 cap, irrespective of the capital expenditures. On July 16, 2001, an IRS employee sent the following e-mail to the accounting supervisor at Coil-plus, which stated, in pertinent part:

“I have been doing some research on the $10 million Cap rule. It seems that the $5,000,000 bond that was outstanding on the date of issue (2/25/1999) of the $8,000,000 bond has to be included in computation of the $10 million cap. (Internal Revenue Code Section 144(a)(2)). IF this is the case, the total at the time of issue of the second bond would be $13,000,000 and therefore, over the cap. We may be wasting our time trying to come up with other capital expenditures.”

(Capitalization in original.)

On July 19, 2001, the president of Coil-plus forwarded and copied the IRS e-mail to several persons and added the following:

“This is an e-mail from the IRS Auditor. If her comments are true, then Coilplus-AL should have never pursued a non-taxable bond. If this is true, then I would be compelled to say that it appears that there was a complete failure of professional services in the matter of advice regarding the establishment of our bond issue.”

On August 9, 2001, the president of Coil-plus, Larry Doss, sent an e-mail regarding the 1984 bonds and the 1999 bonds to its parent company, Mitsubishi International Corporation:

“CPA [Coilplus-AL] Tax-exempt bond—
“Thursday 8/2/01—
“Meetings all day with
“Jim Schiefelbein-Bond Trustee, Bank of New York
“Heyward Hosch Ill-Attorney — Wal-ston Wells Anderson & Bains, Birmingham, AL
“Alma Dripps-IRS-Tax-exempt bond agent
“Hazel Dinsmore-IRS, Tax-exempt bond group manager
“Johnny [sic] Vann-CPA tax exempt bond council [sic] of the firm of Lanier, Ford, Shaver and Payne in Huntsville, previously with Sirote & Permutt at the time of the bond inception
“Sean Kelley-Vice Pres. AmSouth Bank
“Susan Journey-CPA.
“I called this meeting to settle this issue and determine next actions. Results of meeting:
“1. CPA tax exempt bond was defunct from the beginning because of the fact that the original 1984 $5,000,000 bond issue was still in effect when the 1999 $8,000,000 bond issue was instituted. All previous issues regarding CPA capital expenditure controls to avoid exceeding the cap are now immaterial. Cap was exceeded from the bond’s inception date in Feb. 1999. This finding is final as agreed to by all parties.
“2. Johnny [sic] Vann has been terminated as council [sic] of any kind for CPA. Mr. Vann should be prepared to call on his carrier of errors and omissions insurance. Outstanding bill to CPA from Mr. Vann regarding this matter will not be paid.
“3. Restitution and recovery costs associated with the revocation of the tax-exempt bond will be charged back to the parties who provided professional services and bond council [sic] to CPA.
“4. Heyward Hosch III has been retained by CPA as bond council [sic] for the new taxable bond. Hosch III is currently putting together the total amount of charges that CPA will request as restitution. Litigation will be avoided, but if belligerence is encountered regarding restitution, this option will need to be seriously explored.
“5. Morgan Keegan has been selected as underwriter for the new taxable bond.
“Friday 8/3/01, Birmingham AL
“Met with Heyward Hosch III and Frank Kohn in Birmingham law firm office for almost 4 hours working on strategy for restitution and commencement of taxable bond.”

On September 20, 2001, the 1999 bonds were retired and refunded, effective as of the date of the issuance. On March 25, 2002, the president of Coilplus sent Sirote & Permutt a letter, stating:

“In 1999, Coilplus-Alabama, Inc., a subsidiary of Mitsubishi International Corporation, retained the services of Si-rote & Permutt as bond council [sic] for a bond in the amount of $8,000,000. Your firm’s councilor [sic] for this bond was Johnny [sic] Vann. Your firm and Mr. Vann were recommended to us by our contacts at AmSouth Bank.
“This letter and enclosed documentation explain how the advice and council [sic] we received from your firm was erroneous from the beginning and how this error in professional advice caused the Internal Revenue Service to disqualify and force the dissolution of the tax-exempt bond leading to substantial monetary loss to our company.
“Mr. Vann, in agreement with Am-South Bank, recommended that our company apply for a tax-exempt bond, which we did in compliance with their recommendation.
“The point on which the bond was revoked by the Internal Revenue Service was the $10,000,000 capital expenditure volume cap. The IRS audited our bond and discovered that since our original $5,000,000 bond was still in effect at the inception of the new $8,000,000 tax exempt bond, the bond never actually qualified for the tax exemption because the total of the two bonds exceeded the $10,000,000 capital expenditure volume cap. This critical issue was never brought to our attention by our council- or [sic], Mr. Vann and the bond was initiated in violation of this basic qualifying condition. The attached letter explains the events and their sequence of occurrence.
“An enclosed spreadsheet presents the losses to our company incurred from fees paid directly to Sirote & Permutt. It also presents the losses incurred from one time fees paid on the tax-exempt bond for which the full value was irretrievably forfeited due to the bond’s qualification failure. On this spreadsheet, the reimbursement requests for one-time fees are pro-rated by the time the bond was in force and amount of time that would have remained in the life of the bond after its revocation by the Internal Revenue Service.
“As a matter of honor, equity, and professional reputation, I submit this matter to your attention for a fair and reasonable financial resolution based on these real and documented losses to our company.”

On June 24, 2002, the chief operating officer of Sirote & Permutt responded to the letter, stating as follows:

“Thank you for letter and accompanying materials concerning Coilplus’s 1999 bond issue.
“We have read the materials you forwarded and talked with Johnnie Vann concerning the circumstances surrounding the 1999 bond issue as well as his efforts on your behalf since September of 2001 in replacing the 1999 issue with your recent taxable issue, and the results thereof.
“While we regret very much any errors Mr. Vann may have made in connection with his representation of Coil-plus, we do not under the circumstances believe that equity demands reimbursement of amounts expended by Coilplus in connection with the 1999 issue. I trust that you will understand and appreciate our position.”

On October 31, 2002, Coilplus sued Vann and Sirote & Permutt under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”), alleging negligence, wantonness, breach of contract, breach of a fiduciary duty, and suppression of material facts. Coilplus later amended its complaint to include the fact that it could have redeemed the 1984 bonds before the 1999 bonds were issued, thus ensuring the tax-exempt status of the 1999 bonds, if Vann and Sirote & Permutt had given it correct legal advice.

On December 2, 2002, Vann and Sirote & Permutt (hereinafter collectively referred to as “the defendants”) filed an answer in which they raised several affirmative defenses, including an assertion that Coilplus’s claims were barred by the two-year statute of limitations set out in § 6-5-574, Ala.Code 1975. The case was placed on the trial court’s administrative docket because Vann was recovering from a serious illness. In March 2007, the parties filed a joint motion to remove the case from the administrative docket, which the trial court granted, and the parties proceeded with discovery.

On April 29, 2008, the defendants filed a summary-judgment motion based on the ground that all Coilplus’s claims were barred by the statutory limitations period in the ALSLA. Coilplus filed a memorandum in opposition to the motion. The trial court held a hearing on the motion and accepted additional briefs from the parties. On January 7, 2009, the trial court entered a summary judgment in favor of the defendants.

Standard of Review
“‘“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), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).

Arguments

The issue presented for review in this case is whether Coilplus’s action brought under the ALSLA was timely filed. The resolution of this issue depends on a determination of when the statute of limitations on Coilplus’s claims began to run. Coil-plus submits that it brought multiple claims under the ALSLA (negligence, wantonness, breach of contract, breach of a fiduciary duty, and suppression of material facts) and that § 6-5-570, Ala.Code 1975, a part of the ALSLA, incorporates into the ALSLA all common-law and statutory causes of action against a legal-services provider. Coilplus argues that this Court in System Dynamics International, Inc. v. Boykin, 683 So.2d 419 (Ala.1996), held that a cause of action for breach of a fiduciary duty arising out of an IRS liability accrues only when the IRS first sends notice of a disallowance of a deduction. Coilplus further argues that the trial court in the present case erroneously concluded that the statute of limitations began to run in February 1999 when the bonds were issued, not on July 16, 2001, when the IRS sent notice of the possible disallowance of the tax-exempt status of the 1999 bonds and that the only difference between the breach alleged in the present case and the breach of fiduciary duty alleged in System Dynamics is that the defendants in the present case are lawyers.

Coilplus argues that its claims of negligence and wantonness did not accrue until there was a “manifest, present injury” under Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008). With regard to its fraud claim brought under the ALSLA, Coilplus argues that § 6-5-574 of the ALSLA sets out the specific statutory period for the commencement of actions and exceptions to that period and that § 6-2-3, which provides that in actions seeking relief on the ground of fraud the claim must not be considered as accrued until the discovery of the fraud, after which the aggrieved party has two years to prosecute, is one of the exceptions found in § 6-5-574(b).

The defendants argue that all Coilplus’s claims brought under the ALSLA are barred by the two-year statute of limitations in § 6-5-574(a) and that the act or omission giving rise to Coilplus’s claims occurred on February 25, 1999, when the 1999 bonds were issued. They argue that under the caselaw interpreting the limitations period imposed by § 6-5-574(a), either as set out in Ex parte Panell, 756 So.2d 862 (Ala.1999) (holding that the statutory limitations period begins to run from the date of the occurrence of the tortious act or omission), or as set out in Michael v. Beasley, 583 So.2d 245 (Ala.1991) (holding that the statutory limitations period begins to run from the date of the accrual of the action and not from the date of the occurrence of the act or omission), Coilplus’s action is untimely. The defendants further argue that even assuming that the six-month savings provision set forth in § 6-5-574(a) applies, Coilplus’s action is likewise untimely.

The defendants argue that Coilplus attempts to escape § 6-5-574 and caselaw addressing when a cause of action accrues in a legal-malpractice case by relying on cases that are inapplicable or distinguishable. Specifically, they argue that System Dynamics and Griffin are not controlling because neither one involved the ALSLA. With regard to Coilplus’s fraud claim, the defendants argue that the claim is without merit because Coilplus failed to show that the fraud claim could come within the tolling provision of § 6-2-3 when the only facts alleged by Coilplus were, in essence, that Vann gave incorrect legal advice, and Coilplus alleged nothing to show an intentional suppression by Vann (i.e., that Vann intentionally gave Coilplus incorrect legal advice).

Discussion

There is only “one form and cause of action” that may be brought in Alabama against a legal-service provider, and that is a legal-service-liability action. § 6-5-573, Ala.Code 1975. Section 6-5-572, Ala.Code 1975, provides that

“[a] legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal service[ ] liability action embraces any form of action in which a litigant may seek legal redress for a wrong or injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

This includes the multiple claims brought by Coilplus under the ALSLA.

Section 6-5-574, Ala.Code 1975, provides:

“(a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure; except, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date.
“(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his or her eighth birthday to commence such action.”

In short, § 6-5-574(a) requires that a plaintiff commence a legal-malpractice action within two years after the act or omission or failure giving rise to the action. Section 6-5-574(b) subjects the two-year limitations period to other law relating to the computation of the statutory periods of limitations. Section 6-5-574(a) also provides for an ameliorative discovery period of six months from the date of discovery of the cause of action or the date of the discovery of facts that would reasonably lead to such discovery if the cause of action was not known to the plaintiff during the two-year period. Under § 6-5-574(a), there is a four-year absolute bar on all claims occurring on or after August 1, 1987.

In the present case, Coilplus asserted five claims under the ALSLA against the defendants. Because Coilplus does not specifically address its breach-of-contract claim in its brief, this Court will not address it. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317 (Ala.2003) (holding that an appeals court will not discuss a matter on appeal unless presented and argued in brief). Under § 6-5-574(b), Coilplus’s fraud claim is subject to certain statutes regarding the computation of time for statute-of-limitations purposes, which we discuss later in the opinion. We will review the remainder of Coilplus’s claims (negligence, wantonness, and breach of a fiduciary duty) in light of the applicable statutory limitations period set forth in § 6-5-574 and relevant case-law interpreting the ALSLA.

In Denbo v. DeBray, 968 So.2d 983 (Ala.2006), this Court discussed the caselaw applying the “occurrence” test and the “damage” test in determining when the two-year statute of limitations in § 6-5-574 begins to run. In Denbo, a former client filed a legal-malpractice action against his attorney and the law firm that employed the attorney following litigation involving the client and the Environmental Protection Agency arising out of the client’s activities in disposing of hazardous waste. From the beginning of the litigation, the client provided the attorney with copies of certificates of insurance covering the challenged activities at the site and asked that the attorney notify the insurance companies of the litigation. From 1993 to 2000, the attorney and the law firm were actively engaged in the litigation and periodically billed the client for attorney fees and costs, which the client paid. The client repeatedly asked the attorney and the employees of the law firm if the insurance companies had been notified regarding the pending claims. The attorney assured the client that the insurance companies had been notified. In August 2000, the client agreed to settle the case based on advice from the attorney. In March 2002, the client was informed that the insurance companies had not been notified of the litigation in a timely manner and were not responsible for costs and attorney fees that had been incurred by the client without their consent. Because the insurance companies had not been notified of the claims at the commencement of the litigation, the companies refused to reimburse the client for the cost of the settlement or for the costs of litigation. The client filed a legal-malpractice claim based on the attorney’s failure to notify the insurance companies, which was deemed to have been filed on October 1, 2002. The defendants moved for a summary judgment on the basis that the action was barred by the two-year statute of limitations in the ALSLA, which the trial court granted.

In Denbo, this Court discussed the two different approaches for determining when the statute of limitations begins to run, i.e., when a cause of action “accrues.” The Court discussed the “damage” rule in Floyd v. Massey & Stotser, P.C., 807 So.2d 508 (Ala.2001), under wh ich the statute of limitations begins to run from the date that the client in the legal-malpractice action sustains an injury or damage. The Court also discussed Ex parte Panell, 756 So.2d 862 (Ala.1999) (a plurality opinion), and Ex parte Seabol, 782 So.2d 212 (Ala.2000), in which the Court relied on the “occurrence” rule, which bases the running of the statute of limitations on the date the act or omission giving rise to the claim occurred and not when damage is first suffered. This Court in Denbo recognized the split of authority in legal-malpractice actions but did not elect to resolve the split. Instead, the Court held that under either the “damage” approach or the “occurrence” approach, the client’s complaint was untimely.

Under the “occurrence” rule, the Court in Denbo determined that the complaint was barred by the two-year statute of limitations because the attorney’s act or omission (i.e., the failure to timely notify the insurance companies) occurred more than two years before the filing of the action. The Court concluded that even though § 6-5-574(a) allows for a six-month grace period from the time of discovery if the cause of action is not, or could not reasonably be, discovered within the two-year period, the client was notified by the insurance companies in March 2002 that they had not been notified of the claims. Accordingly, the action, filed on October 1, 2002, was outside the six-month extension of time afforded by § 6-5-574(a). Under the “damage” approach, the Court concluded likewise that the claim was time-barred. The client’s damage, including the legal fees he had paid the attorney, in addition to the settlement amount, which the client contended would have been paid by the insurance companies if the companies had been properly notified of the claims, occurred more that two years before the filing of the legal-malpractice action.

The Denbo Court also held that the legal-malpractice claims were precluded by the absolute four-year bar of § 6-5-574(b) because both the attorney’s omission and the payment of legal fees occurred more than four years before the filing of the legal-malpractice action. The Court went on to discuss the client’s attempt to escape the time bar of the ALSLA by invoking the protection of § 6-2-3 as made available by § 6-5-574(b). The Court determined that, to the extent that § 6-2-3 was applicable, the client’s fraud claim was without merit because there had been no reasonable reliance.

As was the case in Denbo, there is no need in the present case for this Court to elect between the occurrence approach and the damage approach: Coilplus’s claims are untimely under either scenario. Under the occurrence approach discussed in Panell and Ex parte Seabol, the act or omission giving rise to the Coilplus’s claim was Vann’s opinion that the 1999 bonds qualified for tax-exempt status when they did not. That act occurred no later than February 25,1999, the date the 1999 bonds were issued. Coilplus filed its complaint on October 30, 2002, after the two-year statute of limitations had run. Assuming that the six-month savings provision of § 6-5-574(a) applies, Coilplus first had knowledge that the tax-exempt status of the 1999 bonds was questionable on July 16, 2001, when the IRS employee sent the e-mail addressing the tax-exempt status of the 1999 bonds or, at the latest, when Doss met with IRS employees, new counsel, and the bond trustee, among others, on August 2, 2001, to discuss the issue. Coilplus filed its complaint more than 6 months after August 2, 2001.

Coilplus’s claims are likewise time-barred under the damage approach recognized in Michael v. Beasley. In Michael, the Court held that a cause of action under the ALSLA accrues at the time the plaintiff first suffers legal injury or damage. In this case, Coilplus first suffered legal injury or damage when the 1999 bonds were sold as tax-exempt bonds on February 25,1999, when those bonds did not and could not qualify for tax-exempt status.

Coilplus argues that its legal injury occurred in 2001 when the IRS notified Coil-plus that the 1999 bonds were not tax exempt, but its reliance on System Dynamics, supra, is misplaced. In System Dynamics, the chief executive officer (“the CEO”) of the corporation caused the corporation to make certain payments to him. The IRS later assessed a penalty against the corporation based on some of those payments, and the corporation sued the CEO. This Court held that there had been no completed wrong until the IRS assessed a penalty and that the statute of limitations did not begin to run until the IRS’s assessment. First, System Dynamics did not involve the ALSLA and the statutory requirements, including the statute of limitations, enacted by the legislature for legal-malpractice claims. Second, System Dynamics is factually distinguishable from the present case. In System Dynamics, this Court relied on the fact that the corporation did not know whether the IRS would allow the payments to the CEO as business deductions, would allow a portion of the payments, or would disallow all the payments. At best, there existed a potential tax liability and consequences when the payments were made to the CEO, and, in the end, the IRS disallowed only a portion of the payments. In other words, the payments were not improper because the corporation suffered no immediate harm as a result of the payments; it was only a later attempt to deduct those payments that resulted in a disallowance of some of the payments as business deductions. In the present case, Coilplus is alleging that the incorrect legal advice resulted in the issuance of bonds that were improper from their issuance and that the 1999 bonds would not have been issued but for Vann’s incorrect legal advice that the 1999 bonds were tax exempt.

Coilplus also relies on a toxic-tort case to support its argument that its cause of action did not accrue until a “manifest, present injury” had occurred and that Coilplus did not have a manifest, present injury until the IRS notified Coilplus that the 1999 bonds were not tax exempt. In Griffin v. Unocal Corp., supra, this Court held that in a toxic-substance-exposure case, a plaintiffs cause of action accrues only when there has occurred a manifest, present injury. It is clear that Griffin is factually distinguishable from this case because Griffin involved a claim that the plaintiffs decedent developed leukemia as a result of, but subsequent to, exposure to a certain toxic chemical while he was employed by the defendant; it did not involve a legal-malpractice claim. Also, in an appendix to Griffin, Justice Harwood discussed the legislature’s right to prescribe different statutes of limitations for different actions, recognizing the ALSLA is one of those statutes:

“The proper construction of the term ‘accrued’ in § 6-2-30(a)[, Ala.Code 1975,] in the context of toxic-substance-exposure cases should honor the rule that a cause of action accrues only when there has occurred a manifest, present injury. I understand ‘manifest’ in this context to mean an injury manifested by observable signs or symptoms or the existence of which is medically identifiable. ‘Manifest’ in this sense does not mean that the injured person must be personally aware of the injury or must know its cause or origin. All that is required is that there be in fact a physical injury manifested, even if the injured person is ignorant of it for some period after its development. This approach is mandated by the rule stated as early as Kelly v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917), and as late as Gilmore v. M & B Realty Co., LLC, 895 So.2d 200, 208 (Ala.2004), and on innumerable occasions in between, that ‘plaintiffs ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, [does not] postpone the running of the statute [of limitations] until the tort or injury is discovered.’ An oft-declared companion rule is that ‘this Court will not apply the discovery rule unless it is specifically prescribed by the Legislature.’ Travis v. Ziter, 681 So.2d 1348, 1354 (Ala.1996).
“We operate within our proper sphere when we undertake to determine the construction that should be ascribed to the legislatively prescribed term ‘accrued’ in § 6-2-30(a); we would operate outside that sphere were we to attempt to add to the text of § 6-2-30(a) so as to superimpose some sort of discovery feature. Thus, I reject the notion that our prior and present requirement of a ‘manifest,’ present injury means that the injury must be obvious to and known by the injured party. That would simply represent the creation of a type of discovery rule. I reaffirm that creation of a discovery rule lies within the province of the legislature, which is equipped to weigh the competing public-policy arguments and to fashion variations of discovery principles tailored to the particular nature of each affected cause of action. The legislature has shown its special capability in that regard by structuring variations of discovery features in the following statutes: § 6-2-3; § 6 — 2—30(b); § 6-5-482; § 6-5-502(b); § 6-5-57U(a); § 7-2A-506(2); § 8-19-14; § 8-26A-16(c); and § 8-27-5.”

990 So.2d at 310-11 (emphasis added).

With regard to Coilplus’s fraud claim, § 6-5-574(a) is “subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions,” including § 6-2-3. § 6-5-574(b). Section 6-2-3 is an accrual provision applicable to fraud claims and provides as follows:

“In actions seeking relief of the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

Coilplus states that the e-mail from the IRS employee dated July 16, 2001, first put Coilplus on notice that the 1999 bonds may not have been tax exempt and that its action was filed on October 30, 2002. Coil-plus argues that this was well within the two-year limit for a fraudulent-suppression claim as set out in § 6-2-3 and within the four-year bar applicable to all claims brought under § 6-5-574(b). The defendants argue that Coilplus’s fraudulent-suppression claim is without merit.

Coilplus alleged in its complaint that the defendants suppressed material facts that they were under an obligation to communicate to Coilplus as its counsel; the facts allegedly suppressed were that the defendants:

“(a) failed to advise [Coilplus] that the 1999 Bonds would not, under the circumstances, qualify as a tax-exempt issue under Section 144 of the Code;
“(b) failed to advise [Coilplus] that [Coilplus] had to retire the 1984 Bond issue prior to the closing of the 1999 Bonds, in order for the 1999 Bonds to qualify as tax-exempt;
“(c) failed to assure that the 1984 Bond issue was retired prior to the closing of the 1999 Bonds so that the aggregate principal amount of all bonds outstanding at such time did not exceed $10,000,000.00;
“(d) failed to advise [Coilplus] of the requirements for the qualification of the 1999 Bonds as tax-exempt; and
“(e) in general, failed to properly and professionally perform their duties as bond counsel and closing attorneys.”

Coilplus has the burden of proving that its fraud claim comes within the tolling provision of § 6-2-3. See Ex parte Seabol, 782 So.2d at 215 (“[U]nder § 6-5-574(b), a legal malpractice action based on allegations of fraud must be commenced within two years after the discovery by the aggrieved party of the fact constituting the fraud; provided, however, that no action may be commenced more than four years after the act or acts constituting fraud. The burden is on the plaintiff to show that he comes within the § 6-2-3 tolling provision.”).

Assuming that Coilplus met its burden of showing that its fraud claim came within the tolling provision, it has not met the elements of fraudulent suppression, which are: (1) the defendant had a duty to disclose an existing material fact; (2) the defendant concealed or suppressed that material fact; (3) the defendant’s suppression induced the plaintiff to act or refrain from acting; and (4) the plaintiff suffered actual damage as a proximate result. Freightliner, LLC v. Whatley Contract Carriers, LLC, 932 So.2d 883, 891 (Ala.2005). “ ‘[A]n action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.’ ” Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716, 726 (Ala.2009) (quoting McGarry v. Flournoy, 624 So.2d 1359, 1362 (Ala.1993)). In the present case, nothing in Coilplus’s complaint alleges that Vann, at the time the 1999 bonds were issued, knew that the bonds were taxable, yet intentionally issued a legal opinion stating that the 1999 bonds were tax exempt. There has been no allegation that Vann knew that the 1999 bonds were taxable when he advised Coilplus that the bonds would be tax exempt. Therefore, Coilplus’s suppression claim fails.

Conclusion

Because Coilplus’s legal-malpractice action is time-barred under all applicable provisions of § 6-5-574, regardless of whether the “occurrence” approach or the “damage” approach is used to determine when that action accrued, and because Coilplus failed to present any evidence to support a claim of fraudulent suppression, we affirm the trial court’s summary judgment in favor of the defendants.

AFFIRMED.

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

      . Coilplus does not address its breach-of-contract claim in its brief to this Court; therefore, we will not address it.

      . The client filed his action on March 26, 2003, but pursuant to a “tolling agreement” between the parties, the action was deemed to have been filed on October 1, 2002.

      . Floyd v. Massey & Stotser relied in part upon Michael v. Beasley, 583 So.2d 245 (Ala.1991).

      . In Unocal, this Court adopted Justice Har-wood's dissent in Cline v. Ashland, Inc., 970 So.2d 755 (Ala.2007), as the opinion of the Court in Griffin and attached the dissent as an appendix.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Terry HUTCHENSON v. Joseph C. DANIEL.
    2080616.
    Court of Civil Appeals of Alabama.
    Nov. 20, 2009.
    Rehearing Denied March 5, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1090826.

      Robert M. Hill, Jr., Florence, for appellant.
    Jeffrey B. Austin of Winborn & Austin, Florence, for appellee.
    Troy King, atty. gen., and Jamie Ayers Durham, deputy atty. gen., and Kathy Perry Brasfield, asst. atty. gen., Alabama Home Builders Licensure Board, for ami-cus curiae Alabama Home Builders Licen-sure Board, in support of the appellant.
   THOMPSON, Presiding Judge.

Terry Hutchenson appeals from the Lauderdale Circuit Court’s partial summary judgment in favor of Joseph C. Daniel. For the reasons stated herein, we reverse the trial court’s judgment and remand the cause for further proceedings.

This case arises from certain repair work that Hutchenson performed for Daniel on a patio and retaining wall located at Daniel’s home. The statutes relevant to the present appeal are located in Chapter 14A of Title 34, Ala.Code 1975, which “deals with the licensing of individuals and companies engaged in the profession of residential home construction.” Fausnight v. Perkins, 994 So.2d 912, 916 (Ala.2008). The purpose of the chapter is described in § 34-14A-1, which provides:

“In the interest of the public health, safety, welfare, and consumer protection and to regulate the home building and private dwelling construction industry, the purpose of this chapter, and the intent of the Legislature in passing it, is to provide for the licensure of those persons who engage in home building and private dwelling construction, including remodeling, and to provide home building standards in the State of Alabama. The Legislature recognizes that the home building and home improvement construction industries are significant industries. Home builders may pose significant harm to the public when unqualified, incompetent, or dishonest home building contractors and remode-lers provide inadequate, unsafe or inferi- or building services. The Legislature finds it necessary to regulate the residential home building and remodeling construction industries.”

Section 34-14A-5 requires “residential home builders” to obtain a license from the Alabama Home Builders Licensure Board (“the Board”). Section 34-14A-2(10) defines a “residential home builder,” in pertinent part, as

“[o]ne ... who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake the construction or superintending of the construction ... of any residence ... which is not over three floors in height ..., or the repair, improvement, or reimprovement thereof, to be used by another as a residence when the cost of the undertaking exceeds ten thousand dollars ($10,000).”

Section 34-14A-2(9) defines a “residence” as “[a] single unit providing complete independent residential living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation.” Section 34-14A-14 provides, in pertinent part, that an unlicensed residential home builder “shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter.”

We turn now to the factual and procedural history of the present appeal. The record, considered in light of the standard by which this court reviews a summary judgment, see infra, reflects the following. In June or July 2007, Hutchenson, a stonemason, and Daniel, the homeowner, entered into a contract whereby Hutchenson agreed to renovate and repair a flagstone patio, a retaining wall, and a walkway at Daniel’s home for an estimated cost of $45,000. While Hutchenson performed the work for Daniel, the cost of the project increased to $75,000 because of certain unanticipated conditions and because Daniel made several changes to the work called for in the contract. Before each change, Hutchenson discussed the proposed change with Daniel and allowed Daniel to make a decision whether to proceed with that change. In an affidavit, Hutchenson described the arrangement of the patio and the retaining wall, as well as the work he performed on those structures, as follows:

“The back of the Daniel’s residence where the retaining wall and flagstone patio are located faces generally south.
“The east part of the retaining wall, which I worked on, steps down east-wardly to the ground and does not touch the residence.
“The west part of the retaining wall which I worked on, ends at the top of flagstone steps that lead in a southerly direction to the ground and does not touch the house. From the flagstone steps on the west part of the wall, the wall extends and circles back to the north and abuts the residence. My original agreement with Mr. Daniel did not cover any work covering this extension of the west wall.
“During the progress of the work, [Daniel] requested me, as an add on to the original agreement, to chisel out certain concrete on the top of the extension wall and to replace the concrete with a limestone cap, which I agreed to do, and did perform. This limestone cap is the only work that I did on the extension wall and the limestone cap which I placed on top of the wall, abutted the residence but is not in any way attached to the residence.
“The flagstone patio is located between the retaining wall, including the extension wall to the west, as described above. The flagstone patio sits on a concrete foundation which abuts the residence but is not a part of the residence or the foundation of the residence. The eave of the residence hangs over the patio about 3 or 5 feet and about 8 to 10 feet in height from the base of the patio.
“As a part of my agreement with [Daniel], I chiseled up all the existing flagstones, replaced some parts of the concrete foundation, cleaned the flagstones and then replaced them in the concrete foundation of the patio.”

On July 1, 2008, Hutchenson sued Daniel alleging breach of contract. In his complaint, he alleged that he had completed the work called for in the contract but that Daniel still owed him $18,987.75, which Daniel had refused to pay. On August 22, 2008, Daniel filed an answer denying the material allegations of Hutchen-son’s complaint. On the same day, Daniel filed a motion for a partial summary judgment in which he argued that Hutchenson was a “residential home builder” as that term is defined in § 34-14A-2 and that, as a result, Hutchenson was required, pursuant to § 34-14A-5, to have been licensed by the Board. Because Hutchenson did not have such a license, Daniel argued, Hutchenson was barred under § 34-14A-14 from enforcing the parties’ contract. Daniel attached to his motion an affidavit in which he stated, among other things, that the patio and the retaining wall were an “integral part” of the structure of his house and that they were “permanently attached and integrated into the structural components of the house.”

In his opposition to Daniel’s summary-judgment motion, Hutchenson contended that the patio, the retaining wall, and the walkway were not part of Daniel’s residence, as the term “residence” is defined in § 34-14A-2. In support of his opposition, Hutchenson submitted an affidavit, parts of which are quoted above. In that affidavit Hutchenson stated, among other things, that the patio and part of the retaining wall abutted Daniel’s house but were not attached to it. He also stated that the patio rested on a foundation that was separate from the foundation on which Daniel’s house rested. Hutchenson also filed a copy of an advisory opinion he had obtained from the Board, the state agency charged with administering the provisions of Chapter 14A of Title 34, Ala. Code 1975, regarding the dispute. In that advisory opinion, the Board, after reciting the facts provided to it by Hutchenson and the relevant statutes, wrote that the relevant statutes did not require Hutchenson to have obtained a license from the Board before entering into the contract with Daniel:

“Based on the narrow question you presented for the Board’s consideration, and the narrow set of circumstances described in this advisory opinion, the Board finds that the construction activity you have described in your request, alone, does not require that a contractor have a home builder’s license, regardless of the amount of the contract. Neither the wall, the patio, the walkway, nor the sidewalk is a ‘residence’ or a ‘structure’ as defined in Ala.Code (1975) § 34-14A-2. The construction of a retaining wall, patio, walkway, or sidewalk and the installation of flagstone or split face blocks thereon, is typically considered ‘subcontracting’ or a specialty function activity within the industry. A specialty function activity is able to be performed by a contractor alone and does not require the hiring of subcontraetor(s) to perform any work.
“This advisory opinion is limited to those instances where the construction of a retaining wall, patio, walkway, or sidewalk and the installation of flagstone or split face blocks thereon do not affect the structural integrity of the residence and where no subcontractor(s) are hired to perform work outside the specialty function trade. This advisory opinion does not apply to those instances where the construction of a retaining wall, patio, walkway, or sidefwalk] and the installation of flagstone or split face blocks thereon affects the structural integrity of the residence, or where other subcontractor(s) are hired to perform work outside the specialty function activity.”

Daniel filed a motion to strike the Board’s advisory opinion because, according to him, it did not comply with Rule 56(e), Ala. R. Civ. P., and it contained hearsay. The trial court did not rule on that motion.

Hutehenson also filed the affidavit of an architect who stated that he had reviewed photographs of the patio and retaining wall that Daniel had submitted in support of his summary-judgment motion. Although the architect did not offer direct testimony related to Daniel’s house, he stated that he had “never designed, seen or known of a patio that is permanently attached to a house.” The architect also stated:

“Due to the fact that the wall of the house is on a different foundation than the patio, and the patio, which is located outside of the house, is subject to expansion and contraction due to changing outdoor temperatures, good architectural practice is to put an expansion joint of approximately ½" wide and 4" high between the house and the patio. Such a patio does not in any way support the house and is not an integral part of the home. The house can exist without the patio and the patio can exist without the home.”

On January 16, 2009, the trial court entered an order granting Daniel’s motion for a partial summary judgment. In its order, the trial court found “that the patio and retaining wall to which [Hutehenson] made repairs were a part of [Daniel]’s residence and that, as such, the repairs and renovations undertaken by [Hutehen-son] constituted repairs, improvement, or reimprovement of the residence.” Because it was undisputed that Hutehenson did not hold a license issued by the Board, the trial court concluded that Hutehenson lacked standing to pursue his breach-of-contract action against Daniel. Hutehen-son filed a motion to alter, amend, or vacate the trial court’s partial summary judgment, which the trial court denied. Hutehenson filed an appeal to this court. This court transferred his appeal to the supreme court for lack of appellate jurisdiction, and that court deflected the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“The standard by which we review a summary judgment is well settled:

“ ‘We review [a summary judgment] de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:

“ ‘ “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.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)).”

Saad v. Saad, 31 So.3d 706, 712 (Ala.Civ.App.2009).

It is undisputed that the Board has never issued Hutchenson a license to engage in home building, and, as a result, his breach-of-contract action against Daniel is precluded if he is a “residential home builder.” § 34-14A-14, Ala.Code 1975. Because the contract price for the work Hutchenson was to perform for Daniel exceeded $10,000, the question whether Hutchenson is a residential home builder turns on whether the repair work that he performed to the patio, the retaining wall, and the walkway at Daniel’s residence constituted “the repair, improvement, or reim-provement” of a “residence.” § 34-14A-2, Ala.Code 1975

Hutchenson contends that the patio and retaining wall on which he performed work are not physically attached to Daniel’s house and, as a result, are not part of the “single unit” comprising Daniel’s residence. He argues that, although the patio and the retaining wall abut the back of Daniel’s house, they are not attached to the house. He argues that the house does not rely on the patio or the retaining wall for support and that the house and the patio exist independently of one another. Hutchenson also quotes the Board’s advisory opinion pertaining to the present case and argues that this court should give great weight and deference to the Board’s opinion.

The Board, as amicus curiae, filed an appellate brief in support of Hutchenson’s appeal. It argues, among other things, that the patio and the retaining wall are not part of the residence because they are not attached to the house. The Board writes:

“The Board has consistently taken the position that when the object of the construction does not meet the definition of a residence, when the work to be performed consists of one function only and does not require the hiring of any additional subcontractors, or when the structural integrity of the residence is not affected by the work to be performed, the tradesman or specialty function contractor is not required to hold a home builders license as the work is outside the jurisdiction of the Board.”

Citing this court’s decision in Alabama Department of Revenue v. Jim Beam Brands Co., 11 So.3d 858 (Ala.Civ.App.2008), the Board argues that, “[i]n construing the meaning of a statute, interpretations of the statute by the administrative agency charged with the enforcement of said statute are to weigh heavily with the court.”

In State Home Builders Licensure Board v. Sowell, 699 So.2d 214 (Ala.Civ.App.1997), this court defined the term “residence” broadly in concluding that a garage, even though it was detached from a house, was part of the “residence” for purposes of Chapter 14A of Title 34. Importantly, at that time, Chapter 14A of Title 34 did not contain a definition of the term “residence,” and, as a result, this court was required to supply a definition of that term in disposing of the appeal. In so doing, this court wrote:

“As we have noted, the Act’s definition of ‘residential home builder’ includes persons who ‘undertake the construction ... of any building or structure ... to be used by another as a residence.’ Ala.Code 1975, § 34-14A-2(1) (emphasis added). Moreover, the term ‘structure’ is defined in the Act as ‘[a] residence.’ Id. § 34-14A-2(7). Unfortunately, the term ‘residence’ is not itself defined in the Act. Accordingly, we must determine the proper construction of the word ‘residence’ as it is used in the Act by reference to general principles of statutory construction.
“ ‘The word “residence” means “a building used as a home.” ’ Waites v. Toran, 411 So.2d 127, 129 (Ala.1982) (quoting Webster’s Third New Int’l Dictionary, ‘Residence,’ at 1931 (1971)). However, under a number of authorities, ‘[t]he word is not confined merely to the dwelling house, but it may include everything used to make the home more comfortable and enjoyable.’ 77 C.J.S. Residence, at 293 (1952) (citing Linn v. Ziegler, 68 Kan. 528, 531, 75 P. 489, 490 (1904) (construing homestead exemption statute)); accord, State v. Gardella, 156 Ariz. 340, 342, 751 P.2d 1000, 1001 (Ct.App.1988) (construing residential burglary statute); see also Thomas v. Zoning Bd. of Adjustment, 241 S.W.2d 955, 959 (Tex.Civ.App.1951) (holding that swimming pool contributed to use of home; quoting Ashton v. Ingle, 20 Kan. 670, 681 (1878)); cf. In re Estate of Sandersfeld, 187 Cal.App.2d 14, 17, 9 Cal.Rptr. 447, 449-50 (1960) (house described as a person’s ‘home’ in a will includes not only structure and the land upon which it is situated, but also any garage or outbuildings which make up a residence); In re Niesen’s Estate, 46 Ohio Op. 164, 166-67, 103 N.E.2d 24, 27 (Hamilton Co. Prob. Ct.1951) (holding that ‘home’ includes adjacent garage, and noting that at common law ‘dwelling house’ included the privy, barn, stable, cow house, and dairy house, if they are part of the same parcel, although they are not under the same roof or contiguous to it). Clearly, then, the term ‘residence’ is not necessarily limited to a dwelling where one’s bedroom and living room are located, but may include anything facilitating the enjoyment of the principal dwelling.”

699 So.2d at 219-20.

The legislature remedied the lack of a statutory definition of “residence” when, in 2002, it amended § 34-14A-2 to provide a definition of “residence.” See Act No. 2002-72, Ala. Acts 2002. Clearly intending to preclude the application of the term “residence” to buildings and structures unattached to a house, the legislature, as stated above, defined a residence as “[a] single unit providing complete independent residential living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation.” Id. at § 1 (codified as § 34-14A-2(9), Ala.Code 1975) (emphasis added). Thus, this court’s holding in So-well, applying the term “residence” to an unattached garage, was legislatively overruled by Act No. 2002-72.

The evidence presented to the trial court regarding Daniel’s summary-judgment motion was conflicting on the question whether the patio and the retaining wall were attached to Daniel’s house or merely abutted it. Daniel’s evidence indicated that the patio and the retaining wall were “permanently attached” to the house. In his affidavit, however, Hutchenson testified that the patio rested on a foundation that was separate from the foundation on which the house rested and that, although the retaining wall and the patio abutted the back of the house, they were not attached to the back of the house. We conclude that, if a jury were to credit Hutchenson’s testimony rather than Daniel’s evidence with regard to the question whether the patio and the retaining wall were attached to the house, the patio and the retaining wall would not be part of the “single unit” comprising Daniel’s residence; that Hutchenson’s repair work would not have been conducted on a residence; and, as a result, that Hutchenson would not have been required, in order to enforce his contract with Daniel, to have obtained a license from the Board. As a result, the trial court erred when it entered a partial summary judgment in favor of Daniel.

The result we reach is not altered by a consideration of this court’s opinion in Hollinger v. Wells, 3 So.3d 216 (Ala.Civ.App.2008), on which Daniel relies. As pointed out by Daniel, this court held in Hollinger that repairs to a back porch constituted repairs to a residence. 3 So.3d at 220. However, there is no indication in the Hol-linger opinion that the builder in Hollinger argued that the back porch was not part of the residence because it was not attached to the residence, nor, for that matter, is there any indication that the back porch was not, in fact, attached to the residence. Therefore, it does not appear that this court addressed in Hollinger a question similar to the one presented in the present case, i.e., whether a patio and retaining wall abutting but not attached to a residence constitute part of the single unit comprising the residence.

Furthermore, we are not persuaded by Daniel’s reliance on the term in the parties’ handwritten contract indicating that Hutchenson would provide repair work for Daniel’s “dwelling.” We are not, in resolving this appeal, confined by the colloquialisms and broad language contained in the parties’ handwritten contract when deciding whether the repairs Hutchenson performed were to Daniel’s residence as that term is precisely and legislatively defined in § 34-14A-2(9). Indeed, it can hardly be said, and there is certainly no evidence indicting, that the parties were contemplating the scope of the term “residence” as defined by statute when drafting their contract. Simply put, we refuse to allow a single reference in the parties’ contract to Daniel’s “dwelling” to define the scope of the work the parties agreed Hutchenson would perform or to influence whether the scope of that work required that Hutchen-son be licensed by the Board before entering that contract and engaging in that work.

Based on the foregoing, we conclude that there is a genuine issue of material fact regarding whether Hutchenson was a “residential home builder” required to have been licensed by the Board in order to enforce his contract with Daniel. As a result, the trial court erred to reversal when it entered a partial summary judgment in favor of Daniel. We reverse that judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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

      . Daniel also filed a counterclaim against Hutchenson in which he asserted, essentially, that Hutchenson had committed fraud when he provided Daniel with the $45,000 estimate for the repair work Daniel was seeking to have completed. The trial court has not, as yet, resolved the merits of Daniel’s counterclaim, and the counterclaim is not at issue in this appeal.

      . On June 4, 2009, Daniel filed a motion to dismiss the appeal. He argued that the partial summary judgment did not constitute a final, appealable judgment because his counterclaim remained pending in the trial court. See supra n. 1. Hutehenson responded by filing a motion to stay the appeal and to remand the cause to the trial court for that court's consideration of a motion to make the partial summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P. This court granted Hutchenson's motion and reinvested the trial court with jurisdiction for 14 days within which to enter, if appropriate, an order making the partial summary judgment a final judgment pursuant to Rule 54(b). Upon being reinvested with jurisdiction, the trial court certified the partial summary judgment as a final judgment pursuant to Rule 54(b). Subsequently, and as a result, this court denied Daniel’s motion to dismiss the appeal.

      . In reaching this conclusion, we have not considered the Board’s advisory opinion issued to Hutchenson, and we take no position with regard to the Board’s view that whether the builder employed a subcontractor or performed work related to the structural integrity of a house make a difference in determining whether the builder is a "residential home builder” as defined in § 34-14A-2(10). Thus, we do not address Daniel’s contention that the Board's advisory opinion is not persuasive because, Daniel asserts, Hutchenson supplied the Board with inaccurate information.


author: BRYAN, Judge. BRYAN, Judge,

text:
    CENTRAL ALABAMA COMMUNITY COLLEGE and C.I.T.Y. Skills Training Consortium v. Hodtric C. ROBINSON et al.
    2080475.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2009.
    Rehearing Denied April 23, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1091090.

      T. Julian Motes, David M. O’Brien, and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellants.
    William F. Patty and William R. Gordon, Jr., of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; and Theron Stokes, Alabama Education Association, Montgomery, for appellees.
   BRYAN, Judge.

Central Alabama Community College (“the College”) and C.I.T.Y. Skills Training Consortium (“the Consortium”) appeal from a judgment of the Montgomery Circuit Court entered in favor of Hodtric C. Robinson, Suzanne L. Schmitz, and Joy Suttle (collectively “the employees”).

The employees performed work for the Consortium, which is operated by the College. In 2006, each of the employees was dismissed without a hearing. Each of the employees filed an appeal, pursuant to § 36-26-115, Ala.Code 1975, a part of the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”). The employees’ appeals were consolidated and assigned to an administrative law judge (“the ALJ”). On appeal, the only issue before the ALJ was whether the FDA applied to the employees. To make this determination, the ALJ had to determine whether the employees were employed by the Consortium or whether they were actually employed by the College, thereby making the provisions of the FDA applicable to the employees. In May 2007, the ALJ issued an order determining that the employees were employed by the College and, therefore, that the employees’ dismissals were governed by the FDA. Pursuant to the authority granted to the ALJ in § 36-26-115, the ALJ concluded that the employees had been improperly dismissed, and the ALJ rescinded the employees’ dismissals.

The College and the Consortium filed in the circuit court a petition for a writ of certiorari seeking review of the ALJ’s order. The employees subsequently filed in the circuit court a counterclaim seeking a declaratory judgment and injunctive relief. In their counterclaim, the employees sought a judgment determining that the employees are entitled to: full backpay, without any setoffs; certain interest on that backpay; reinstatement of their salaries and benefits; compensation due to lost medical benefits following the employees’ dismissals; and back retirement benefits. The employees then moved for a summary judgment on them counterclaim.

On January 23, 2009, the circuit court entered a judgment denying the petition for a writ of certiorari filed by the College and the Consortium and granting the employees’ summary-judgment motion.

The College and the Consortium appeal the circuit court’s judgment in favor of the employees on their counterclaim. The College and the Consortium do not appeal the circuit court’s denial of their petition for a writ of certiorari.

On appeal, the College and the Consortium argue that State immunity under Art. I, § 14, Ala. Const.1901, also known as sovereign immunity, Ex parte Tirey, 977 So.2d 469, 470 (Ala.2007), acts as a jurisdictional bar in this case. The College and the Consortium raise this argument for the first time in their reply brief. Typically, an appellate court “does not address issues raised for the first time in a reply brief.” Byrd v. Lamar, 846 So.2d 384, 341 (Ala.2002). However, “[t]he assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu.” Atkinson v. State, 986 So.2d 408, 411 (Ala.2007). “ ‘[A]n action contrary to the State’s immunity is an action over which the courts of this State lack subject-matter jurisdiction.’ ” Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007) (quoting Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala.2001)). Therefore, we address whether State immunity applies in this case and, consequently, whether the circuit court had subject-matter jurisdiction over the employees’ counterclaim.

“Section 14, Ala. Const.1901, provides: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ (Emphasis added.) ‘The wall of immunity erected by § 14 is nearly impregnable.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (‘Section 14 affords absolute immunity to both the State and State agencies.’); Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala.2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala.2007) (same); Good Hope (same); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (same). ‘Absolute immunity1 means just that — the State and its agencies are not subject to suit under any theory.
“ ‘This immunity may not be waived.’ Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a ‘jurisdictional bar.’ Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala.2007). The jurisdictional bar of § 14 simply ‘precludes] a court from exercising subject-matter jurisdiction’ over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). Thus, a complaint filed solely against the State or one of its agencies is a nullity and is void ab initio. Ex parte Alabama Dep’t of Transp. (In re Russell Petroleum, Inc. v. Alabama Dep’t of Transp.), 6 So.3d 1126 (Ala.2008).... Amy action taken by a court without subject-matter jurisdiction — other than dismissing the action — is void. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999).”

Alabama Dep’t of Corr. v. Montgomery County Comm’n, 11 So.3d 189, 191-92 (Ala.2008). “[State] immunity extends to the state’s institutions of higher learning,” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983), which includes the state’s community colleges, such as the College in this case. Williams v. John C. Calhoun Cmty. Coll, 646 So.2d 1, 2 (Ala.1994); and Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1313 (Ala.Civ.App.1995).

“[C]ertain causes of action are not barred by § 14:

“ ‘ “There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in them representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond them authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, ... 280 Ala. [635] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).’ ”
“Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting [Ex parte ] Carter, 395 So.2d [65,] 68 [ (Ala.1980) ]) (emphasis omitted). These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).”

Alabama Dep’t of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008). The categories of actions that are not barred by § 14 are “relevant only as they relate to claims against State officials in their official capacities, not as they relate to the State agency or the State itself.” Alabama Dep’t of Corr., 11 So.3d at 194.

In this case, the ALJ issued an order determining that the employees were employed by the College and rescinding the employees’ dismissals. The College and the Consortium filed in the circuit court a petition for a writ of certiorari seeking review of the ALJ’s order. The employees then filed in the circuit court a counterclaim against the College and the Consortium seeking a declaratory judgment and injunctive relief. Although the employees’ counterclaim named both the College and the Consortium as counterde-fendants, the counterclaim sought relief based on the employees’ employment relationship with the College. As noted, the ALJ determined that the College, not the Consortium, employed the employees. Therefore, the College, not the Consortium, was the real counterdefendant in interest as to the counterclaim. Therefore, we consider only whether the College is entitled to State immunity with respect to the employees’ counterclaim.

As a state institution of higher learning, the College is absolutely immune from suit under Art. 1, § 14, Ala. Const. 1901. Williams, 646 So.2d at 2; and Colagross, 674 So.2d at 1313. Because the employees’ counterclaim was filed against the College and not against any State official in his or her official capacity, the categories of actions that are not barred by § 14 have no possible application. Alabama Dep’t of Corr., 11 So.3d at 194. Therefore, we conclude that the employees’ counterclaim was barred by State immunity.

In conclusion, the circuit court lacked subject-matter jurisdiction over the employees’ counterclaim. Therefore, that portion of the circuit court’s judgment adjudicating the employees’ counterclaim is void and, therefore, is vacated. Moreover, a void judgment will not support an appeal. Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 492 (Ala.2008). Therefore, we dismiss the appeal.

The employees’ motion seeking to strike that portion of the reply brief concerning State immunity or, alternatively, seeking leave to respond to the reply brief is denied.

JUDGMENT VACATED IN PART; APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

Article 1, § 14, Ala. Const. 1901, affords the State of Alabama absolute immunity from suit. Unfortunately, State immunity conflicts with the principle that for every wrong there should be a remedy. Courts and commentators have frequently criticized the doctrine as being an unjust anachronism. See 1 Civil Actions Against State and Local Government § 1.8 (Jon L. Craig ed. 1992) (discussing the abrogation of common-law sovereign immunity in many jurisdictions); and Kenneth Culp Davis, Sovereign Immunity Must Go, 22 Admin. L.Rev. 383 (1970) (discussing sovereign immunity in federal courts). However, barring constitutional amendment, State immunity is the law in Alabama. In this case, the employees sued the College directly, thus implicating the State’s absolute immunity.

      . The Consortium provides various services for at-risk youth and their families.

      . Following the entry of the judgment, the circuit court granted a partial stay of the enforcement of the judgment as it relates to Schmitz, relating to her work for the Consortium, pending the outcome of criminal proceedings.

      . This case does not present a situation in which State officials were sued in their individual capacities.