author: THOMAS, Judge.

text:
    PLATTE RIVER INSURANCE COMPANY v. William T. MURPHY.
    2100233.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.
    Rehearing Denied March 2, 2012.
    Certiorari Denied May 11, 2012 Alabama Supreme Court 1110720.

      Mark N. Chambless and Michael God-win of Chambless Math Carr, P.C., Montgomery, for appellant.
    Ginger Emfinger Hicks, Dothan, for ap-pellee.
   THOMAS, Judge.

Platte River Insurance Company (“Platte River”) appeals from a judgment of the Henry Circuit Court in favor of William T. Murphy (“Murphy”) on Platte River’s action seeking enforcement of an indemnity agreement. We reverse and remand.

Murphy was president of Circle M, Inc., d/b/a Murphy Oil Company (“Circle M”), from 1990 until 1999, at which time he resigned from Circle M because of his health. Murphy recorded his resignation from Circle M with the Henry Probate Court. In June 1995, Murphy, as president of Circle M, entered into an agreement with Platte River, which was then known as Acceptance Insurance Company, for a gasoline-tax bond. The gasoline-tax bond provided that Platte River would act as a surety for the gasoline taxes that Circle M, as a gasoline distributor, owed to the Alabama Department of Revenue (“the department”); the gasoline-tax bond covered up to $86,000 in gasoline taxes. The gasoline-tax bond did not have a set expiration date.

In May 1998, Platte River entered into an indemnity agreement with Murphy, Thomas C. Murphy, Robert M. Murphy, and Ernest M. Mize (collectively referred to as “the indemnitors”), in which the in-demnitors agreed, in their representative and individual capacities, to indemnify Platte River if it was required to pay on the gasoline-tax bond. Like the gasoline-tax bond, the indemnity agreement lacked a specific expiration date.

In April 2003, the department filed a claim with Platte River, asserting that Circle M had failed to pay to the department gasoline taxes totaling $79,531 for the months of December 2002 and January 2003; the department revised its claim in October 2003, lowering the amount of unpaid gasoline taxes to $72,487.50. After investigating the department’s claim, Platte River paid the $72,487.50 in unpaid gasoline taxes to the department, pursuant to its obligation under the gasoline-tax bond.

Platte River notified the indemnitors of their obligation under the indemnity agreement; none of the indemnitors fulfilled their obligation to indemnify Platte River. Platte River filed a complaint in the trial court on June 6, 2006, stating a claim of breach of contract and a claim of account stated. The trial court entered a judgment against the indemnitors on August 27, 2009, based on a purported settlement agreement. Murphy filed a motion to set aside the August 27, 2009, judgment as to him, stating that neither he nor his counsel were present in the trial court on the day of the hearing on the proposed settlement agreement and that he had not agreed to settle Platte River’s claims against him. The trial court set aside its August 27, 2009, judgment as to Murphy, and Platte River’s claims against Murphy proceeded to trial. After hearing ore ten-us evidence at trial, the trial court entered a judgment in favor of Murphy on Platte River’s claims. Platte River appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Platte River argues that Murphy was bound by the terms of the indemnity agreement and that he presented no valid defense to the enforcement of the indemnity agreement. The material facts of this case are not in dispute. The question on appeal is whether the trial court correctly applied the law to the facts of this case.

“ ‘When evidence is presented ore ten-us, the trial court is “ ‘unique[ly] positioned] to directly observe the witnesses and to assess their demeanor and credibility.’ ” Ex parte T.V., 971 So.2d 1, 4 (Ala.2007) (quoting Ex parte Fann, 810 So.2d 631, 633 (Ala.2001)). Therefore, a presumption of correctness attaches to a trial court’s factual findings premised on ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala. 2008)....
“ ‘ “However, the ore tenus standard of review has no application to a trial court’s conclusions of law or its application of law to the facts; a trial court’s ruling on a question of law carries no presumption of correctness on appeal.” Ex parte J.E., 1 So.3d at 1008 (citing [Ex parte ] Perkins, 646 So.2d [46,] 47 [ (Ala.1994) ], and Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)). This Court “ ‘review[s] the trial court’s conclusions of law and its application of law to the facts under the de novo standard of review.’ ” Id. (quoting Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App. 2005)).’ ”

Smith’s Sports Cycles, Inc. v. American Suzuki Motor Corp., 82 So.3d 682, 684 (Ala.2011) (quoting Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010)).

It is undisputed that Platte River and Circle M entered into an agreement for Platte River to provide Circle M with a gasoline-tax bond. It is also undisputed that Murphy entered into the indemnity agreement, in which he agreed to indemnify Platte River if it was required to pay a claim under the gasoline-tax bond, that Circle M did not pay all the gasoline taxes it owed to the department, and that Platte River paid the amount owed to the department by Circle M, pursuant to the terms of the gasoline-tax bond. Murphy testified that he believed that it was standard practice for gasoline-tax bonds to require renewal each year or to expire after three years; however, Murphy admitted that the gasoline-tax bond issued by Platte River to Circle M does not contain any set expiration date. Murphy also admitted that the indemnity agreement did not have any set expiration date. Murphy acknowledged that he never contacted Platte River to inform it that he had resigned from Circle M or that he wished to be released from the indemnity agreement.

The gasoline-tax bond was a continuing bond that would terminate only by action of one of the parties to the bond, such as Circle M’s failure to pay the premiums on the bond. Likewise, the indemnity agreement guaranteeing reimbursement to Platte River should it have to fulfill its obligation under the gasoline-tax bond was continuous in nature. The terms of the indemnity agreement are clear and unambiguous.

“A contract ‘ “ ‘must be given effect, if at all, according to its plain and inescapable meaning.’ ” ’ James A. Head & Co. v. Rolling, 265 Ala. 328, 338, 90 So.2d 828, 836 (1956) (quoting Oates v. Lee, 222 Ala. 506, 507, 133 So. 44, 45 (1931), quoting in turn Union Central Relief Ass’n v. Thomas, 213 Ala. 666, 667, 106 So. 133, 134 (1925)). Moreover, where the terms of a contract are ‘plain and unambiguous, there is no room for interpretation, and the parties thereto “may stand upon the letter” of the contract.’ Dunlap v. Macke, 233 Ala. 297, 300, 171 So. 721, 724 (1937).”

Home v. TGM Assocs., L.P., 56 So.3d 615, 622 (Ala.2010). The indemnity agreement contains no language that limits Murphy’s liability to liability arising from events that occurred only while he was affiliated with Circle M or that states that Murphy’s liability is limited to liability arising from his official capacity as president of Circle M. Thus, by the plain language of the indemnity agreement, Murphy is liable to Platte River.

Murphy argues, however, that, because the indemnity agreement had no set expiration date and because he was no longer affiliated with Circle M when the obligation under the indemnity agreement accrued, it would be unreasonable to hold him liable under the indemnity agreement. In support of his argument, Murphy cites William R. Hubbell Steel Corp. v. Epperson, 679 So.2d 1131 (Ala.Civ.App.1996).

In Epperson, Temco Metals, Inc. (“Tem-co”), sought to purchase steel from William R. Hubbell Steel Corporation (“Hubbell Steel”). Bert Epperson, who at the time was the chairman of the board for Temco, was a personal friend of William R. Hub-bell, who was then the president of Hub-bell Steel. In April 1988, Epperson entered into an agreement with Hubbell to personally guarantee Temco’s steel purchase. Temco paid a deposit for the steel and, after the steel was delivered, paid the remaining balance owed to Hubbell Steel for the purchase. Temco did not purchase any additional steel from Hubbell Steel until 1992. In 1992, an employee of Temco placed an order for steel with Hubbell Steel; Epperson was not involved with the 1992 order. Hubbell Steel relied on the 1983 guarantee agreement when it advanced credit to Temco in 1992; however, no one from Hubbell Steel contacted Ep-person, who remained a principal at Tem-co, regarding the 1983 guarantee agreement. Temco failed to pay Hubbell Steel for the 1992 order, and Hubbell Steel sought to enforce the 1983 guarantee agreement against Epperson. The trial court determined that Epperson was not liable to Hubbell Steel for the 1992 order under the 1983 guarantee agreement. Ep-person, 679 So.2d at 1132-33.

This court affirmed the trial court’s judgment, agreeing with the trial court’s determination “ ‘that it would not be reasonable for Epperson to remain liable for Temco’s debts over nine years after he executed the guaranty agreement’ ” Id. at 1133. This court stated that the general principles of law that applied to the case were:

“(1) when there is no fixed time for performance stated in a contract, the law presumes that a ‘reasonable time’ was intended, Restatement (Second) of Contracts § 33; (2) a guaranty, as other contracts, is complete when the minds of the parties to the guaranty meet in mutual assent, Barnett Bank [of Pensacola v. Marable ], 385 So.2d 66 [ (Ala.Civ.App.1980) ]; and (3) when there is a continuing guaranty, which is unlimited in duration, the period of time for which it is valid must be reasonable, in light of the circumstances of the particular case. Mamerow [v. National Lead Co.], 206 Ill. 626, 69 N.E. 504 [ (1903) ].”

Id. This case, however, is distinguishable from Epperson.

In Epperson, Epperson signed an agreement to guarantee Temco’s purchase of steel from Hubbell Steel. Although the guarantee agreement had no expiration date, it was designed to guarantee payment of a specific transaction — the August 1983 purchase. After the August 1983 purchase, Temco had no business relationship with Hubbell Steel for nine years. In this case, like in Epperson, the indemnity agreement had no specific expiration date; however, unlike in Epperson, Circle M had an ongoing, continuous business relationship with Platte River. The indemnity agreement entered into by Murphy was designed to indemnify Platte River if it had to fulfill its obligation under the gasoline-tax bond, which bond continued in force from its inception date in 1995 until after it paid the department for Circle M’s unpaid gasoline taxes in 2003. Thus, in this case there is no gap in the business relationship between Circle M and Platte River as there was in the business relationship between Temco and Hubbell Steel in Epperson.

Additionally, the guarantee in Epperson was entered into in order to guarantee a discrete transaction. Hubbell Steel’s attempt to enforce the guarantee was based on a separate, much-later discrete transaction. In this case, there was only one object of the indemnity agreement — the gasoline-tax bond, which continued without interruption. Unlike the facts in Epper-son, it is not unreasonable for the term of the indemnity agreement to match the term of the gasoline-tax bond. Thus, Ep-person does not mandate an affirmance of the trial court’s judgment. Given the continuous business relationship between Circle M and Platte River and the connection between the indemnity agreement and the gasoline-tax bond, which remained extant, the length of the indemnity agreement was not unreasonable, and, thus, it is not unreasonable to obligate Murphy to fulfill the terms of the indemnity agreement.

Murphy also argues that he should not be bound to the terms of the indemnity agreement because he was no longer an officer of Circle M when the events occurred that required Platte River to fulfill its obligation under the gasoline-tax bond. However, the Alabama Supreme Court has held that an individual’s disassoeiation with a corporation is insufficient, on its own, to release the individual from an agreement to guarantee the debts of the corporation. See Sharer v. Bend Millwork Sys., Inc., 600 So.2d 223, 227 (Ala.1992). Therefore, the fact that Murphy had resigned from Circle M, standing on its own, is insufficient to release him from his obligations under the indemnity agreement.

Because the plain, unambiguous terms of the indemnity agreement obligate Murphy to indemnify Platte River for its payment of Circle M’s unpaid gasoline taxes pursuant to the gasoline-tax bond, and because it is not unreasonable under the facts of this case to bind Murphy to the terms of the indemnity agreement, we reverse the judgment of the trial court and remand the cause to that court for it to enter a judgment in favor of Platte River.

REVERSED AND REMANDED.

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

      . The indemnitors agreed to bind “themselves, their heirs, executors, administrators, successors, subsidiaries, and assigns, jointly and severally.”


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. PITTMAN, Judge,

license: Public Domain

text:
    Geanie Shannon BROWN v. FIRST FEDERAL BANK et al.
    2100921.
    Court of Civil Appeals of Alabama.
    Feb. 10, 2012.
    Rehearing Denied May 18, 2012.

      Heather Holtcamp, Tuscaloosa, for appellant.
    William P. Gray, Jr., Douglas N. Robertson, and John David Gray of Gray & Associates, L.L.C., Birmingham, for appellees.
   THOMPSON, Presiding Judge.

Geanie Shannon Brown (“Geanie”) appeals from a summary judgment entered by the Tuscaloosa Circuit Court in favor of First Federal Bank (“First Federal”), Jerry Dewayne Brown (“Jerry”), and Donielle Eaton. For the reasons stated herein, we affirm the judgment in part, reverse it in part, and remand the cause for further proceedings.

The trial court resolved this action by a summary judgment; therefore, we consider the evidence of record in the light most favorable to Geanie, the nonmovant, resolving all disputed issues of material fact in Geanie’s favor. See Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d 991, 994-95 (Ala.2008). Our consideration of the record under that standard reveals the following pertinent facts. Geanie was married to Jerry. At the times relevant to this action, First Federal employed Jerry as a loan officer and employed Eaton as a commercial-loan processor. Eaton was a notary public.

Geanie and Jerry purchased a house (“the marital residence”) in 2004. They took out a mortgage on the marital residence, and that residence secured an indebtedness of $208,000. On November 21, 2005, Jerry, without Geanie’s knowledge, entered into an agreement with First Federal whereby First Federal extended Jerry a home-equity line of credit with a limit of $30,000. Jerry executed a mortgage on the marital residence securing that line of credit (“the November 2005 mortgage”), and he forged Geanie’s signature on that mortgage. Subsequently, Eaton notarized Jerry’s and Geanie’s signatures on the mortgage.

First Federal issued blank checks to Jerry on the line of credit. The checks listed the loan number of the line of credit and indicated that they were to be drawn on an account at First Federal. Geanie used the first check drawn on the line of credit to pay for interior decorating. She filled out the check, and Jerry signed it. She later testified that she did not realize that the check she had used to pay the decorator was drawn on the line of credit Jerry had established; she stated that she believed the parties had an account at First Federal from which proceeds from the sale of their previous house had been deposited.

In January 2006, without Geanie’s knowledge, Jerry entered into an agreement with First Federal for the establishment of a second line of credit with a limit of $62,000, the proceeds of which were used to pay off the first line of credit. Jerry executed a mortgage on the marital residence in favor of First Federal to secure the line of credit (“the January 2006 mortgage”). Again, he forged Geanie’s signature on the mortgage. Eaton subsequently notarized Jerry’s and Geanie’s signatures.

In 2007, Geanie filed an action for a divorce from Jerry. Sometime between March and June of 2008, while the divorce action was pending, she learned of the November 2005 and the January 2006 mortgages for the first time. In July 2008, Jerry and Geanie reconciled, and Geanie dismissed the divorce action. In December 2008, Jerry and Geanie refinanced the debts secured by the marital residence. As part of the refinance, they consolidated the debt associated with the existing line of credit with their other mortgage debt into a single debt secured by the marital residence. Also as part of the refinance, they received proceeds of approximately $10,000, which were deposited into a checking account primarily used by Geanie. Geanie testified that those funds were used to pay household bills. In April 2008, First Federal recorded a cancellation of the November 2005 mortgage; in December 2008, First Federal recorded a release of the January 2006 mortgage.

In August 2009, Geanie filed a second action for a divorce from Jerry. On September 18, 2009, she filed the present action against First Federal, Jerry, and Eaton (hereinafter collectively referred to as “the defendants”). Geanie alleged that the defendants had wrongfully executed and recorded the November 2005 and the January 2006 mortgages and that First Federal and Eaton had “actively participated in securing the said mortgages with [Geanie]’s forged signature contained thereon and with knowledge of Jerry’s intent to suppress or conceal from [Geanie] the true facts concerning those documents and the related transactions.” Although she did not separately enumerate her claims against the defendants in her complaint, it appears from the complaint, as well as from subsequent filings and her appellate briefs, that Geanie asserted claims of negligence and fraudulent suppression against Eaton for which she asserted First Federal was vicariously liable; claims of negligence, wantonness, and fraudulent suppression against Jerry; claims of negligence, wantonness, suppression, and negligent and wanton supervision against First Federal; and a claim of conspiracy against all the defendants.

The defendants filed a motion for a summary judgment as to all of Geanie’s claims, raising a host of arguments. Among other things, they argued that Geanie had authorized Jerry to execute the November 2005 and January 2006 mortgages on her behalf and that he had not acted wrongfully in so doing. As to the claim of suppression, the defendants argued that they did not owe a duty to disclose any information to Geanie, that there was no evidence indicating that they had failed to disclose information to Geanie, that Geanie had neither acted to her detriment nor relied on an incomplete set of facts, and that Geanie had not been injured by any alleged fraudulent suppression by the defendants. In addition, they argued that Geanie was on notice of the information she claimed they had suppressed because she had filled out the first check drawn on the original line of credit; because she had received several documents from her property-insurance carrier indicating that there were two mortgages on the marital residence; because a bank statement relating to the checking account Jerry primarily used but to which Geanie had access showed that a check for $13,352 had been drawn on the account and the check was used to pay down the second line of credit; and because the November 2005 and January 2006 mortgages had been properly recorded. As to the claims against Eaton, the defendants argued that she had used reasonable care in performing her duties and that she had had a reasonable belief that the mortgages had been properly executed by Jerry and Geanie. The defendants argued that Geanie had not suffered any injury because, among other things, she had not been obligated on the lines of credit, she never owed any money to First Federal until she voluntarily refinanced the marital residence in December 2008, and any mental anguish she had suffered was attributable to the two divorce actions she had filed against Jerry, not to any actions of the defendants giving rise to the present action. The defendants argued that all of Geanie’s claims were barred by a two-year statute of limitations because her claims accrued at the time of the execution and notarization of the mortgages at issue, which occurred more than three years before she filed the present action. They argued that there was no evidence indicating that the defendants had suppressed or concealed her causes of action so as to permit a tolling of the statute of limitations pursuant to § 6-3-2, Ala. Code 1975. Finally, the defendants contended that Geanie had ratified the debt created by the lines of credit when she voluntarily agreed to refinance the marital residence.

In response to the summary-judgment motion, Geanie argued that there was a genuine issue of material fact regarding whether she had authorized Jerry to sign her name to the mortgages at issue; she presented evidence in the form of her deposition testimony indicating that she had never had any conversations with Jerry regarding the lines of credit he established in late 2005 and early 2006. She stated that the check she had written to the interior decorator that was drawn on the original line of credit did not indicate on its face that it was drawn on a line of credit and that she had thought it was drawn on an account that contained proceeds from the sale of Jerry’s and her prior residence. She argued that there was substantial evidence indicating that Jerry had acted negligently and wantonly in forging her name to the mortgages securing the lines of credit, that Eaton had negligently violated her duties as a notary by failing to take steps to ascertain that Geanie’s signature was genuine, and that First Federal had negligently supervised Eaton. Geanie argued that she had agreed to refinance the marital residence in December 2008 under duress because Jerry had led her to believe that, unless they refinanced the house, it would be subject to foreclosure. Geanie argued that the defendants’ actions had caused her damage by reducing her equity in the marital residence and by causing her mental anguish. Finally, Geanie argued that her claims were not barred by the two-year statute of limitations because the defendants had fraudulently suppressed from her the existence of the mortgages and because Jerry, as her husband, had had a duty to disclose to her the existence of the mortgages. She argued that she did not have notice of the mortgages until sometime between March and June 2008 and, as a result, that her causes of action were tolled until that time pursuant to § 6-2-3, Ala.Code 1975. Geanie also asserted that her wantonness claims were subject to a six-year, rather than a two-year, statute of limitations.

In addition to her response to the summary-judgment motion, Geanie filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., in which she argued that the trial court should postpone consideration of, or deny, the summary-judgment motion until additional discovery could be completed. She stated that she had been unable to complete Jerry’s deposition because he had invoked his constitutional privilege against self-incrimination and that she had been unable to take the deposition of the corporate representative of First Federal because its attorney had improperly objected to questions her counsel had asked during the deposition. Geanie stated that she needed to complete Jerry’s deposition so that she could obtain evidence that would rebut the defendants’ contention that she had knowledge of and consented to the lines of credit Jerry had obtained from First Federal. She stated that she needed to take the deposition of First Federal’s corporate representative to obtain information concerning First Federal’s supervision of its employees and information regarding First Federal’s loan procedures and whether those procedures were followed for the lines of credit and related mortgages giving rise to the action. Gean-ie supported her motion with an affidavit from her attorney.

Geanie also filed a motion to strike certain documents from the defendants’ summary-judgment submission, including the contracts Jerry had executed regarding the two lines of credit, a copy of a check for $13,352 purporting to have been drawn on the checking account Jerry primarily used, an account statement for that account, and various documents that appeared to relate to property insurance on the marital residence. She argued that the defendants had not properly authenticated those documents.

The trial court held a hearing on the defendants’ summary-judgment motion, after which, on May 3, 2011, it granted the motion and entered a summary judgment in the defendants’ favor. In so doing, the trial court implicitly denied Geanie’s pending discovery motion and motion to strike. See Tell v. Terex Corp., 962 So.2d 174, 182 (Ala.2007) (entry of summary judgment constituted implicit denial of pending motion to compel discovery). Geanie filed a timely appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.'

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant [a summary-judgment] motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12 — 21—12(d)[,] Ala.Code 1975. Evidence is ‘substantial’ if it is 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 Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘ “In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we must review the record in a light most favorable to the non-movant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’
“Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d at 994-95.

Geanie contends that the trial court erred when it implicitly denied her motion, filed pursuant to Rule 56(f), Ala. R. Civ. P., to deny or postpone consideration of the defendants’ summary-judgment motion pending her completion of certain discovery. Specifically, she argues that she was entitled to obtain the deposition of First Federal’s corporate representative, which would provide information regarding the supervision of First Federal’s employees and whether First Federal followed its loan procedures with regard to the lines of credit and mortgages at issue.

Rule 56(f) provides:

“Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

We conclude that the trial court’s denial of Geanie’s Rule 56(f) motion constituted, at most, harmless error. As discussed herein, Geanie’s claims against First Federal were barred by the two-year statute of limitations, and there is no indication that the information she sought by deposing First Federal’s corporate representative would have had any bearing on that conclusion.

Rule 45, Ala. R.App. P., provides that

“[n]o judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Because Geanie has failed to demonstrate that obtaining the information she sought in her Rule 56(f) motion would affect the trial court’s summary judgment and this court’s disposition of her appeal of that summary judgment, we find no basis on which to reverse the trial court’s judgment as to this issue.

Geanie also argues that the trial court improperly considered several documents the defendants submitted in support of their summary-judgment motion and as to which she had filed a motion to strike on the basis that the documents were unauthenticated. Having reviewed those documents, we conclude that, even if they were unauthenticated so that the trial court should not have considered them in resolving the summary-judgment motion, our de novo review of the summary judgment without the benefit of those documents shows that the summary judgment was proper as to all of Geanie’s claims except one. As to the one claim for which we find that summary judgment was improper, even consideration of all the documents to which Geanie objected would not have provided a basis on which to enter the summary judgment. Thus, the trial court’s failure to strike the documents to which Geanie objected was, at most, harmless error for which we will not reverse the trial court’s judgment. See Rule 45, Ala. R.App. P.

We turn now to the merits of the summary judgment. Because the trial court did not state the reason for its summary judgment, to obtain a reversal Geanie has the burden of establishing that none of the grounds asserted by the defendants in support of the summary-judgment motion would support the entry of the judgment. See Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006) (“When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver -with respect to the issue.”). We conclude that, except as to her claim of wantonness against Jerry, Geanie has failed to meet that burden.

The defendants argued to the trial court and argue on appeal that Geanie’s claim of negligence against Eaton was barred by the two-year statute of limitations because Eaton’s notarization of the November 2005 and January 2006 mortgages had occurred, and Geanie’s claim against Eaton had therefore accrued, more than two years before Geanie filed her action. Geanie argues on appeal that the limitations period on her action was tolled by operation of § 6-2-3. That section provides:

“In actions seeking relief on 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.”

Although § 6-2-3 speaks in terms of actions asserting fraud rather than other tort claims, our courts have recognized that § 6-2-3 tolls the statute of limitations for any claims that are fraudulently concealed or suppressed from a plaintiff. See DGB, LLC v. Hinds, 55 So.3d 218, 224-26 (Ala.2010). Section 6-5-102, Ala.Code 1975, provides that “[s]uppression of a material fact which the party is under an obligation to communicate constitutes fraud.” However, “[i]n the absence of a confidential relationship, [there is] no duty imposed by law obligating an alleged tort feasor to make known to one possibly injured by his acts the existence of a possible cause of action.” Tonsmeire v. Tonsmeire, 285 Ala. 454, 458, 233 So.2d 465, 468 (1970).

Although Geanie argues generally that the defendants suppressed from her facts that would have led to her discovery of her causes of action, her specific arguments relate solely to First Federal and Jerry. She does not demonstrate, or even attempt to demonstrate, that Eaton was under a duty to disclose any information that would have led to her discovery of her potential causes of action or that Eaton fraudulently suppressed that information. As a result, we conclude that Geanie has failed to demonstrate that her negligence claim against Eaton was tolled by § 6-2-3 such that summary judgment was improper as to that claim.

For the same reason, we conclude that summary judgment was properly entered as to Geanie’s claims of negligence and negligent supervision against First Federal. Geanie argues on appeal that First Federal had an obligation to disclose to her, at the time she entered into the December 2008 refinancing of the marital residence, that she was not liable for the repayment of the existing home-equity line of credit Jerry had obtained from First Federal. Geanie is making this argument for the first time on appeal; she never argued to the trial court that First Federal was obligated to make any disclosure to her regarding the legal effect of Jerry’s home-equity line of credit at the time of the December 2008 refinance. Thus, we cannot consider that argument. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate c]ourt cannot consider arguments raised for the first time on appeal; rather, [the appellate court’s] review is restricted to the evidence and arguments considered by the trial court.”). Furthermore, Geanie did not state a claim against First Federal related to the refinance; instead, her claims against First Federal relate to the initial transactions whereby Jerry created the lines of credit and forged her name to the mortgages securing the lines of credit. Thus, the duty she claims First Federal had to disclose information to her regarding the lines of credit did not arise, according to her, until the time of the refinance in December 2008, at a time when she was already on notice of Jerry’s forgery of her name on the mortgages and, as a result, already on notice of her potential claims against First Federal. As a result, we conclude that Geanie has failed to demonstrate that the tolling provisions of § 6-2-3 apply to her negligence claims against First Federal.

Because Geanie has failed to demonstrate that First Federal and Eaton owed her a duty of disclosure as to any of the facts giving rise to her claims, we conclude that Geanie has also failed to demonstrate that the trial court erred in entering a summary judgment as to Geanie’s fraudulent-suppression claims against Eaton and First Federal.

We turn now to Geanie’s wantonness and wanton-failure-to-supervise claims against First Federal. The defendants contended in the trial court that, despite some caselaw indicating that wantonness claims are subject to the six-year statute of limitations for trespasses to the person or liberty set forth in § 6-2-34(1), Ala. Code 1975, see, e.g., McKenzie v. Killian, 887 So.2d 861, 870 (Ala.2004), overruled by Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] — So.3d -, - (Ala.2011), Geanie’s wantonness claims were subject to the general two-year statute of limitations applicable to “[a]ll actions for any injury to the person or rights of another not arising from contract” set forth in § 6-2-38(1), Ala.Code 1975, because her claims did not involve trespass to the person or liberty. Relying on McKenzie, Geanie argued to the trial court that her wantonness claims were subject to a six-year statute of limitations. On appeal, Geanie does not argue that a six-year statute of limitations applies to her wantonness claims; instead, the only argument she makes that her claims are saved from the application of the statute of limitations is her contention that her claims were tolled by operation of § 6-2-3. However, as with her other claims against First Federal, she has failed to demonstrate that First Federal failed to provide her with information related to her wantonness claims that it was under a duty to provide.

With regard to Geanie’s claims against Jerry, however, we conclude that there is a question of fact regarding whether § 6-2-3 tolled the statute of limitations. Unlike with First Federal and Eaton, Geanie has demonstrated that Jerry, who was her husband at the time he created the lines of credit and forged her name on the mortgages securing the lines of credit, had a duty to disclose to her the facts underlying her claims against him. See § 6-5-102, Ala.Code 1975 (stating that a duty to communicate facts can arise from the confidential relationship of the parties), and Tonsmeire v. Tonsmeire, 285 Ala. at 458, 233 So.2d at 467 (“Ordinarily the relation of husband and wife is a status calling for the exercise of utmost confidence in one for the other. Love, affection, and welfare of the family usually [ejnsure this confidential relationship.”). The record contains substantial evidence that, when viewed in the light most favorable to Gean-ie, indicates that, despite his duty to do so, Jerry failed to disclose the facts relating to his forgery of Geanie’s signature on the November 2005 and the January 2006 mortgages. The record also contains evidence indicating that Geanie did not learn of the mortgages containing her forged signature until sometime between March and June 2008, well within two years of when she filed her action.

The defendants argue that, despite her testimony that she did not learn of the mortgages until 2008, Geanie was in possession of, and had knowledge of, documents before 2008 that, if she had read, would have put her on notice of the existence of the forged mortgages. We con-elude that questions of fact prevent any such finding for summary-judgment purposes.

For example, the defendants contend that in 2005 and 2006 Geanie received several documents'from Jerry’s and her property-insurance company indicating that there were multiple mortgages on the marital residence. However, although Geanie testified that she had seen “mailings” from the company and that she may have seen one unspecified document from the company, there is no evidence indicating that any documents she had actually seen from the insurance company contained any information regarding the mortgages on the marital residence.

The defendants also point out that Gean-ie prepared the first check drawn on the November 2005 line of credit. However, the only information relating to the line of credit contained on that check was an account number and First Federal’s name; the face of the check did not indicate that it was drawn on a line of credit. Geanie testified that she did not know that the check was drawn on the line of credit; instead, she testified that she thought it was drawn on an account she believed Jerry had established at First Federal and into which the proceeds from the sale of their previous house had been deposited.

The defendants argue that a statement for a bank account Jerry primarily used, but to which Geanie had access, indicated that a withdrawal was made on March 26, 2007, for $13,352 and that if Geanie had reviewed that statement and investigated the withdrawal, she would have learned that it had been used to pay debt on the second line of credit. The defendants rely on § 7-4-406, Ala.Code 1975, subsection (c) of which provides:

“If a bank sends or makes available a statement of account or items pursuant to subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.”

Although § 7-4-406 “addresses the necessity of a bank customer’s timely reviewing account statements and notifying the bank of problems with an account,” Brannon v. BankTrust, Inc., 50 So.3d 397, 401 n. 5 (Ala.2010), we do not view the provisions of that section as establishing that a bank customer who fails to review his or her bank-account statement is deemed, as to third parties, to have constructive notice of the items contained in the statement.

Considering the evidence in the light most favorable to Geanie, and drawing all reasonable inferences in her favor, we conclude that questions of fact exist as to whether Geanie saw several of the above-noted documents and whether, as to the ones she did see, she was adequately apprised of facts from which she could have discovered the existence of the mortgages containing her forged signature.

The defendants also assert that because the mortgages were recorded, Gean-ie is deemed to have had constructive notice of the existence of those mortgages at the time of recordation, thus commencing the running of the statute of limitations. They rely on § 35-4-51, Ala.Code 1975, which, in relevant part, provides:

“Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property ..., when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents.”

In Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26 (1945), a party claiming a rever-sionary interest in certain real property asserted that the recording of a mortgage and deed evidencing his title in the property had put certain individuals from whom he had purported to purchase his interest on notice of his claim. Our supreme court rejected the party’s argument, describing the effect of the predecessor statute to § 85-4-51 as follows:

“The recording statutes, as constructive notice (Code 1940, Title 47, §§ 95 and 102), have no application. The notice arising thereunder applies only to those whose duty it is to search the record and no such duty devolved upon the complainants. 66 C.J. 1137, § 971, 1187, § 1042.
“Generally, the constructive notice designed by these statutes purposes to affect subsequent parties and not those antecedent in chain of title and ‘to protect innocent purchasers and creditors without notice, by preventing prejudice to them from prior unrecorded conveyances, made by those under whom they claim.’ Gimon v. Davis, 36 Ala. 589, 593 [ (1860) ].”

247 Ala. at 462, 25 So.2d at 29. Similarly, in the present case, Geanie’s interest in the property against which the mortgages were taken preexisted the creation of the mortgages; thus, the recording of those mortgages did not provide constructive notice to Geanie of their existence under § 35-4-51.

The defendants also rely on § 35-4-90, Ala.Code 1975, which provides, in relevant part:

“(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”

Regarding § 35-4-90, our supreme court has written:

“Under Ala.Code 1975, § 35-4-90, the proper recordation of an instrument constitutes ‘conclusive notice to all the world of everything that appears from the face’ of the instrument. Christopher v. Shockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917). Thus, purchasers of real estate are ‘presumed to have examined the title records and knowledge of the contents of those records is imputed [to them].’ Walker v. Wilson, 469 So.2d 580, 582 (Ala.1985) (quoting J.H. Morris, Inc. v. Indian Hill[s 1 Inc., 282 Ala. 443, 212 So.2d 831 (1968)).”

Haines v. Tanning, 579 So.2d 1308, 1310 (Ala.1991). However, the full passage from Christopher, only a portion of which the Haines court quoted, reads: “So far as notice to subsequent purchasers is concerned, the only duty resting upon a mortgagee is the due registration of the mortgage in the office of the probate judge, which is conclusive notice to all the world of everything that appears from the face of the mortgage.” Christopher v. Shockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917) (emphasis added). We conclude that the constructive notice provided by § 35-4-90 extends to those who, like subsequent purchasers, are under a duty to search the chain of title for claims against a parcel of property but that it does not extend to those who, like Geanie, have an antecedent claim to the property at issue and therefore have no reason to search for subsequently arising claims to the property. See, generally, Pierce v. Rwmmell, 535 So.2d 594, 597 (Ala.1988) (holding that recording of an instrument provided constructive notice to subsequent purchasers, not to those with an interest antecedent to the making of the instrument).

Although we conclude that the statute of limitations does not bar Geanie’s claims of negligence, wantonness, and fraudulent suppression against Jerry, we nonetheless conclude that summary judgment was properly entered as to Geanie’s fraudulent-suppression claim on a separate ground. “The elements of a cause of action for fraudulent suppression are: (1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.” Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996).

Geanie stated in answer to an interrogatory that, had she known about the forged mortgages, she would have “taken action to protect [her] equity in [the marital residence] and to prevent ... Jerry ... from wasting the funds acquired from the two mortgage transactions.” However, Geanie has presented no evidence of what specific actions she would have taken had she known earlier about the forged mortgages. Instead, the evidence reflects that, once she did know of the facts relating to the creation of the lines of credit and the mortgages securing them, Geanie took no actions whatsoever to protect whatever interest she may have had at stake. She has presented no evidence indicating that she incurred any debt associated with the lines of credit until she refinanced the marital home in December 2008, at least six months after she had learned of the information she asserts was suppressed from her. Thus, she has failed to demonstrate that any actions or failures to act on her part brought on by the suppression of information related to the establishment of the lines of credit and the associated mortgages resulted in an injury to her. As a result, we conclude that summary judgment was appropriate as to her fraudulent-suppression claim against Jerry.

Regarding Geanie’s remaining claims against Jerry, negligence and wantonness, the defendants asserted in the trial court and reiterate on appeal that Geanie was not damaged by any of their actions. Geanie responded in the trial court, and argues on appeal, that the defendants’ actions impaired her equity in the marital residence. However, as just noted, Geanie produced no evidence indicating that she incurred any debt as a result of the lines of credit Jerry created. Although Geanie argues that, before the December 2008 refinance, the January 2006 mortgage encumbered her interest in the marital residence, she asserted to the trial court that that mortgage was void because she did not sign it. See § 6-10-3, Ala.Code 1975, and Sims v. Cox, 611 So.2d 339, 340-41 (Ala. 1992). There is no indication that Geanie made any effort to have the January 2006 mortgage canceled; instead, Geanie voluntarily refinanced the marital residence in December 2008 and assumed liability for the debt secured by that mortgage. Having taken no action to protect her interests, despite her knowledge of facts that would demonstrate the invalidity of the 2006 mortgage, we fail to see how Geanie’s voluntary assumption of the debt secured by the mortgage was caused by any action on the part of any of the defendants, and, thus, we fail to see how her interest in the marital residence was impaired or otherwise harmed by any action's of the defendants.

Geanie argues that her agreement to refinance the marital residence and thereby assume joint liability for the debt associated with the lines of credit was not voluntary; she argues that she made that decision under economic duress. Specifically, she contends that she was left with no choice but to enter into the refinance because Jerry had told her that, because of problems in the housing market, he might lose his job and they needed to lower the payment on the debts secured by the marital residence so that, if he did lose his job, they could continue making their monthly payments on those debts. Thus, Geanie argues, she was faced with the proposition of refinancing the marital residence or potentially losing it.

“ ‘[T]o demonstrate a prima fa-cie case of economic duress, a party must show “(1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; (3) the absence of any reasonable alternative to the terms presented by the wrongdoer.” ’ ” Penick v. Most Worshipful Prince Hall Grand Lodge F & AM of Alabama, Inc., 46 So.3d 416, 431 (Ala.2010) (quoting Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 707 (Ala.2008), quoting in turn International Paper Co. v. Whilden, 469 So.2d 560, 562 (Ala.1985)). “Economic duress is not proved merely by showing a wrongful act. In addition, the victim must show that he had no reasonable alternative but to agree to the other party’s terms or face serious financial hardship.” International Paper Co. v. Whilden, 469 So.2d at 563.

We cannot conclude that Geanie entered the December 2008 refinance under duress. There was no certainty that if she had refused to refinance the marital residence in such a way as to become jointly liable for the debt associated with the lines of credit that Jerry and she would have lost the marital residence. More importantly, reasonable alternatives to assuming liability for Jerry’s lines-of-credit debt were available to Geanie. For example, as already discussed, at the time of the December 2008 refinance, Geanie was on notice of facts that should have led her to conclude that she was not liable on the existing home-equity line of credit and that the mortgage securing that line of credit was not valid; Geanie could have sought to have the mortgage associated with that line of credit canceled as void. As a result, we cannot conclude that Gean-ie was left with no alternative but to refinance the debt on the marital residence and assume responsibility for the debt associated with the lines of credit or face losing her home. Therefore, we cannot conclude that the conditions necessary for a finding of economic duress are present in this case.

The only other damages that Geanie claims in this case for which there is any evidence is her assertion that the defendants’ actions caused her mental anguish. In response to an interrogatory from the defendants asking what mental anguish and emotional distress she had suffered as described in her complaint, Geanie stated:

“I have suffered and continued to suffer the following: difficulty sleeping; constant worrying about money; short temper; crying at work; and guilt and shame about being unable to obtain loans and having to rely on my parents to pay many of my bills. I also feel guilty about not being able to work as much as I did in the past at my family’s business (Northport City Café).”

She also stated in a separate response that she had “suffered weight loss as a result of stress related to the defendants’ actions.”

Damages for mental anguish are not recoverable for negligence except when the plaintiff has suffered a physical injury as a result of the negligent conduct or was placed in an immediate risk of physical injury by that conduct. See Birmingham Coal & Coke Co. v. Johnson, 10 So.3d 993, 999 (Ala.2008). Here, Geanie has not alleged a physical injury or risk of physical injury brought on by Jerry’s conduct. As a result, Geanie’s negligence claim against Jerry is not supported by a cognizable claim for damages, and summary judgment was therefore appropriate as to that claim.

As to her wantonness claim against Jerry, however, damages for mental anguish are recoverable. Indeed, “[i]t is well settled that a plaintiff may recover compensatory damages for mental anguish, even when mental anguish is the only injury visited upon the plaintiff.” George H. Lanier Mem’l Hosp. v. Andrews, 901 So.2d 714, 725 (Ala.2004). In supporting a claim for mental-anguish damages, “[a] plaintiff is required only to present some evidence of mental anguish, and once the plaintiff has done so the question whether the plaintiff has suffered mental anguish and, if so, the question of how much compensation the plaintiff is entitled to for the mental anguish are questions for the jury.” Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 178 (Ala. 2000).

In the present case, Geanie has set forth a basis for the recovery of mental-anguish damages, and her interrogatory answer provides some evidence indicating that she did, in fact, suffer such damages. Although the defendants argue that any mental anguish from which Geanie suffered derived from other sources or was nonexistent, the evidence on which they rely in this regard demonstrates, at most, a fact question as to the basis of Geanie’s mental anguish. The evidence does not show that, as a matter of law, Geanie suffered no mental anguish as a result of Jerry’s actions.

As a related issue, the defendants argued to the trial court, and argue on appeal, that they could not be liable to Geanie because she had ratified their alleged wrongdoing by her actions in refinancing the marital residence in December 2008 and by her retention of some of the benefits of the lines of credit Jerry had taken out. However, at least as to the wantonness claim against Jerry, we agree with Geanie that ratification does not provide such a defense. In CIT Financial Services, Inc. v. Bowler, 537 So.2d 4 (Ala. 1988), a case involving facts similar to the present case, our supreme court discussed the defense of ratification and held that, although there was evidence the plaintiff in that case had ratified the forgery of her signature on certain loan documents, such ratification was not a defense to the plaintiffs negligence and wantonness claims against the lending company that had extended the loan. The court wrote:

“[T]he trial court refused CIT’s written requested jury charge on ratification and did not orally instruct the jury on the law of ratification. CIT made a timely objection to the trial court’s refusal of this charge.... A new trial was requested and one ground assigned therefor was the refusal to give the requested charge on ratification. The trial court in refusing to give the requested charge stated that ratification is not a defense to negligence or wantonness. The trial court is correct, and it was not error for it to refuse the requested charge on ratification, since only the claims on negligence and wantonness were submitted to the jury.”

CIT Fin. Services, Inc., 537 So.2d at 6. Based on the above holding in CIT Finan cial Services, Inc., we conclude that, even if Geanie, by her actions or inactions, ratified the transactions giving rise to the lines of credit and related mortgages, such ratification does not constitute a defense to Jerry’s potential tort liability to her on her wantonness claim.

As a final matter bearing on the merits of Geanie’s claims, we consider whether she has established a prima facie case of wantonness against Jerry. The defendants argue that she has not; we agree with Geanie, however, that, at least as to this remaining claim, there is a genuine issue of material fact that precluded summary judgment. About wantonness, our supreme court has written:

“‘Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala. 1994). To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala.1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions. Id. ‘Conscious’ has been defined as ‘ “perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception”’; ‘“having an awareness of one’s own existence, sensations, and thoughts, and of one’s environment; capable of complex response to environment; deliberate.”’ Berry v. Fife, 590 So.2d 884, 885 (Ala.1991) (quoting Webster’s New Collegiate Dictionary 239 (1981) and The American Heritage Dictionary of the English Language 283 (1969), respectively).”

Ex parte Essary, 992 So.2d 5, 9 (Ala.2007).

Considering the evidence in the light most favorable to Geanie, we conclude that a reasonable jury could find that Jerry executed the home-equity lines of credit and, in so doing, forged Geanie’s name to the mortgages necessary to secure the debts created thereby without her knowledge. Furthermore, a reasonable jury could find that Jerry took these actions knowing that there was a substantial likelihood that his actions would cause some type of legal injury to Geanie, if not financially then, at the very least, mentally and emotionally. We likewise conclude that a reasonable jury could find that Jerry owed a duty to Geanie not to forge her name to the mortgages and that he knowingly breached that duty. Thus, we conclude that, because substantial evidence supports Geanie’s wantonness claim against Jerry, and because the statute of limitations and other arguments asserted by the defendants do not bar that claim, the trial court erred to reversal when it entered a summary judgment as to that claim.

Finally, Geanie asserted a claim of conspiracy against all the defendants. She does not address that claim on appeal. As a result, she has waived any argument that the trial court erred when it entered a summary judgment as to that claim. See Fogarty, 953 So.2d at 1232.

Based on the foregoing, we reverse the summary judgment as to Geanie’s wantonness claim against Jerry, we affirm the balance of the summary judgment, and we remand the cause to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMAS and MOORE, JJ., concur.

PITTMAN, J., concurs in part and concurs in the result, with writing.

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

PITTMAN, Judge,

concurring in part and concurring in the result.

I concur in that portion of the opinion affirming the trial court’s judgment. As to the reversal of the trial court’s judgment concerning Geanie Shannon Brown’s wantonness claim against Jerry Dewayne Brown, I concur in the result. The logic of the principle that bars compensability of mental-anguish damages in a negligence context when no physical injury or immediate risk of physical injury is shown by that plaintiff, a principle most notably summarized by the supreme court in ABA-LAR, Ltd. v. Francis, 716 So.2d 1141,1148 (Ala.1998), arguably has the same force in a wantonness context — after all, the principal distinction between the two qualities of tort is the state of mind of the actor (see, e.g., Boyd v. Wal-Mart Stores, Inc., 710 So.2d 1258, 1260-61 (Ala.Civ.App. 1997)). However, I am bound, pursuant to Ala.Code 1975, § 12-3-16, by the supreme court’s more recent statement, in Birmingham Coal & Coke Co. v. Johnson, 10 So.3d 993, 1000 (Ala.2008), that “damages for mental anguish and emotional distress are proper ... in tort cases in which ... the defendant’s action constitutes wantonness .... ” Any limitation to be imposed upon the breadth of that statement is outside the purview of an intermediate appellate court.

      . Jerry asserts that Geanie knew about and assented to the line of credit and that she authorized him to sign her name to the mortgage. Geanie disputes these assertions, and, as stated above, the standard by which this court reviews the trial court’s summary judgment requires that this court consider the evidence in the light most favorable to Gean-ie.

      . The defendants point out that, in Tonsmeire, our supreme court held that the husband was not under a duty to disclose to his wife the existence of facts giving rise to a claim of libel against him by her because the husband and the wife were estranged and no longer living together. However, there is no indication in the present case that Jerry and Geanie were estranged during the times relevant to Jerry’s forging of Geanie’s signature to the mortgages at issue.


author: PITTMAN, Judge.

text:
    Ex parte KIMBERLY-CLARK CORPORATION and Kimberly-Clark Worldwide, Inc. (In re: Alabama Department of Revenue v. Kimberly-Clark Corporation and Kimberly-Clark Worldwide, Inc.) Kimberly-Clark Corporation and Kimberly-Clark Worldwide, Inc. v. Alabama Department of Revenue.
    2100803 and 2100811.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2012.
    Certiorari Denied May 16, 2012 Alabama Supreme Court 1110647.

      Marc James Ayers and Christopher R. Grissom of Bradley Arant Boult Cummings LLP, Birmingham, for petitioners/appellants Kimberly-Clark Corporation and Kimberly-Clark Worldwide, Inc.
    Jeff Patterson, deputy atty. gen., Montgomery, for respondent/cross-appellee Alabama Department of Revenue.
   PITTMAN, Judge.

This appeal and this petition for a writ of mandamus arise out of a dispute that has engendered more than 10 years of litigation between the Alabama Department of Revenue (“the Department”) and Kimberly-Clark Corporation (“KC”) and its subsidiary, Kimberly-Clark Worldwide, Inc. (“KCW”). The dispute— whether the gain derived from the sale by KC of a pulp-and-paper-manufacturing facility in Alabama known as the Coosa Mill and the sale by KCW of 375,000 acres of adjacent timberland known as the Coosa Timberlands should be classified as “business income” or “nonbusiness income” for purposes of Alabama corporate income taxation — was finally resolved by our supreme court when it determined, in Ex parte Alabama Department of Revenue, 69 So.3d 144 (Ala.2010), that the gain on the sales of the Coosa properties was nonbusiness income.

In case no. 2100811, KC and KCW appeal from an April 14, 2011, ruling of the Montgomery Circuit Court denying their motion to remand the matter to an administrative law judge (“AL J”) in the Department’s Administrative Law Division for a ruling on constitutional issues that, KC and KCW say, were left unresolved by the decision in Ex parte Alabama Department of Revenue, supra. In case no. 2100803, KC and KCW petition for a writ of mandamus directing the circuit court to vacate its April 14, 2011, ruling and to remand the matter to the ALJ. We have consolidated the appeal and the petition for the writ of mandamus for the purpose of writing one opinion

Facts and Procedural History

KC and KCW (hereinafter collectively referred to as “the taxpayers”) are Delaware corporations commercially domiciled in Texas. They are part of a multistate, multinational business enterprise that does business and pays taxes in many jurisdictions, including Alabama. After the taxpayers sold the Coosa properties, they reported on their Alabama corporate-income-tax returns the gains derived from the sales as “business income” pursuant to Ala.Code 1975, § 40-27-1, Art. IV, ¶¶ 1(a) and 9, which are part of Alabama’s version of the Multistate Tax Compact (“MTC”). Article IV, ¶ 1(a), defines “business income” as

“income arising from transactions and activity in the regular course of the taxpayer’s trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.”

Article IV, ¶ 9, requires that business income earned by a corporation that is operating in more than one state be apportioned among all the states in which the corporation does business.

“Alabama has adopted the Multistate Tax Compact (‘MTC’), see Ala.Code 1975, § 40-27-1, which was intended to create a uniform system by which states can accurately identify and fairly apportion taxes with respect to income attributable to multiple states. The tax attributable to each state is based on the allocation and apportionment rules established in 1957 by the Uniform Division of Income for Tax Purposes Act (‘UDITPA’). Ex parte Uniroyal Tire Co., 779 So.2d 227, 230 (Ala.2000). Under the MTC and UDITPA, income is divided into business income and non-business income. A multistate corporation’s business income is apportioned among the states in which the corporation operates, generally in accordance with an equally weighted three-factor formula encompassing sales, payroll, and property. Ala.Code 1975, § 40-27-1, art. IV, ¶ 9. Nonbusiness income, however, is wholly allocated to a single state: although, in certain instances, such income [e.g., the sale of intangible personal property] is allocated to the corporation’s ‘state of commercial domicile,’ the income from the sale of real property is allocated to the state in which the property is located. Ala.Code 1975, § 40-27-1, art. IV, ¶¶ 5-8.”

Kimberly-Clark Corp. v. Alabama Dep’t of Revenue, 69 So.3d 135, 139 (Ala.Civ.App. 2008), reversed on other grounds, Ex parte Alabama Dep’t of Revenue, supra. See generally Larry D. Scheafer, Annot., Construction and Application of Uniform Division of Income for Tax Purposes Act, 8 A.L.R.4th 934 (1981).

In 2001, the Department classified the gain on the sales as “nonbusiness income” and allocated all the income to Alabama pursuant to Ala.Code 1975, § 40-27-1, art. IV, ¶ 6(a). Article IV, ¶ 6(a), provides that “[c]apital gains and losses from sales of real property located in this state are allo-cable to this state.” The Department entered a final assessment of $21 million of corporate income tax against the taxpayers.

The taxpayers sought review of the assessment by the Department’s Administrative Law Division, arguing three issues: (a) that the gain on the sales of the real property located in Alabama was business income pursuant to the applicable Alabama statute; (b) that the taxpayers are conducting an integrated business enterprise, taxation of which is subject to apportionment under the “unitary-business” principle; and (c) that, for apportionment purposes, the income derived from the sales at issue should be excluded from the Ala-' bama “sales factor” under Regulation 810-27-l-4-.18(3)(a), Ala. Admin. Code (Dep’t of Revenue). The Department’s ALJ determined that the income should be classified as business income but that it should not be excluded from the Alabama sales factor. The ALJ did not expressly address the taxpayers’ argument concerning the unitary-business principle.

The Department appealed from the ALJ’s ruling to the Montgomery Circuit Court, pursuant to Ala.Code 1975, § 40-2A-9(g)(2). The taxpayers cross-appealed from the ALJ’s ruling regarding nonexclusion from the Alabama sales factor. Section 40-2A-9(g)(2) provides:

“The appeal to circuit court from an order issued by the administrative law judge shall be a trial de novo, provided the order of the administrative law judge shall be presumed prima facie correct and the burden shall be upon the appealing party to show otherwise. The court shall hear the case in accordance with its own rules and shall decide all questions of fact and law. The administrative record and transcript shall be transmitted to the reviewing court as provided herein, and shall be admitted into evidence in the trial de novo, subject to the rights of either party to assign errors, objections, or motions to exclude calling attention to any testimony or any evidence in the administrative record or transcript which is deemed objectionable or inadmissible. Notwithstanding the foregoing, with the consent of all parties, judicial review may be on the administrative record and transcript. The court, upon request, shall hear oral argument and receive written briefs.”

The circuit court received no testimonial evidence. It decided the case on the briefs and arguments of counsel and the record of the hearing before the ALJ. The circuit court reversed the ALJ’s decision, concluding that the gain on the sales of the Coosa properties should be classified as nonbusiness income and allocated solely to Alabama.

The taxpayers appealed to this court. In 2008, we reversed the circuit court’s judgment and held that the income should be classified as business income. Kimberly-Clark Corp. v. Alabama Dep’t of Revenue, supra. The Supreme Court of Alabama granted the Department’s petition for certiorari review of our decision and reversed it, holding that the income from the sales of the Coosa properties was non-business income. On February 26, 2010, the supreme court remanded the case “for the reinstatement of the order of the circuit court upholding the Department’s final assessments against [the taxpayers].” Ex parte Alabama Dep’t of Revenue, 69 So.3d at 154.

The taxpayers applied for a rehearing, arguing that the supreme court's decision had “resulted] in an extraordinarily unfair and unconstitutional double taxation of the taxpayers’ income by Alabama” and requesting the supreme court to “remand the case for further consideration and possible amelioration of the double taxation now imposed on the taxpayers.” The taxpayers’ amicus curiae, the Council on State Taxation, filed a brief in support of the application for rehearing, arguing that the supreme court’s opinion had “[f]ail[ed] to consider the constitutional restrictions that limit Alabama’s ability to tax the entire gain from the transactions” and citing several decisions by the United States Supreme Court standing for the proposition that the business income of a unitary business must be apportioned among all the states in which it conducts business. The Department filed a brief in opposition to the application for a rehearing, arguing that well-established rules of appellate procedure precluded consideration of an argument advanced for the first time on rehearing. The supreme court overruled the taxpayers’ application for a rehearing on September 17, 2010, declining to extend its opinion to expressly address the double-taxation argument or to remand the case for further consideration of that argument.

On September 24, 2010, the taxpayers filed a motion in the circuit court before this court had acted on the supreme court’s mandate, to remand the case to the ALJ “for a resolution of the taxpayers’ remaining and yet — unresolved argument raised before the [ALJ] concerning whether the Department’s tax assessment violates certain constitutional principles.... specifically, that, under United States Supreme Court precedent, the taxpayers were conducting a ‘unitary business’ and thus that the income at issue was appor-tionable.” The circuit court denied the motion on December 8, 2010, correctly concluding that it had no jurisdiction to act because the case remained pending before this court on remand from the supreme court. On December 30, 2010, the taxpayers filed a motion with the ALJ, requesting that he rule on their constitutional arguments. The ALJ denied that motion, concluding that he, like the circuit court, had no jurisdiction because the case was pending on remand to this court.

On March 18, 2011, this court, in compliance with the supreme court’s decision in Ex parte Alabama Department of Revenue, supra, “affirm[ed] the judgment of the Montgomery Circuit Court reversing the decision of the [ALJ] and upholding the [Department’s] final assessments.” Kimberly-Clark Corp. v. Alabama Dep’t of Revenue, 69 So.3d 155, 156 (Ala.Civ.App. 2011). This court’s certificate of judgment was issued on April 6, 2011. On the same day, the taxpayers filed in the circuit court a renewed motion to remand the case to the ALJ for resolution of their constitutional arguments. The circuit court denied that motion on April 14, 2011. The taxpayers filed both a notice of appeal and a petition for a writ of mandamus to this court challenging that decision. This court, ex mero motu, consolidated the appeal and the mandamus petition because they both sought review of the same ruling denying the taxpayers’ motion to remand to the ALJ.

Discussion

As a threshold matter, we must determine whether this case is properly before us by way of a petition for a writ of mandamus or an appeal. After the circuit court denied the taxpayers’ motion to remand to the ALJ on April 14, 2011, nothing further remained for the circuit court to adjudicate. Thus, the circuit court’s April 14, 2011, ruling was a final judgment that supports an appeal. See Price v. Clayton, 18 So.3d 370, 374 (Ala.Civ.App. 2008). Compare Ex parte Affinity Hosp., LLC, 85 So.3d 1033 (Ala.Civ.App.2011) (holding that the circuit court’s order remanding action to the ALJ for an eviden-tiary hearing was not a final judgment that would support an appeal because three claims remained pending in the circuit court and the circuit court specifically noted that those claims were not yet ripe for consideration).

“ ‘It is well established in Alabama that a writ of mandamus, which is a drastic and extraordinary remedy, will not issue when there is an adequate remedy by appeal, and that the writ cannot be used as a substitute for appellate review.’ ” Ex parte Weaver, 781 So.2d 944, 949 (Ala. 2000) (quoting Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990)). Accordingly, we deny the taxpayers’ petition for a writ of mandamus in case no. 2100803.

In Ex parte Alabama Department of Revenue, supra, the supreme court reversed this court’s judgment in Kimberly-Clark Corp. v. Alabama Department of Revenue, supra, and remanded the cause “for the reinstatement of the order of the circuit court upholding the Department’s final assessments against [the taxpayers].” 69 So.3d at 154. When an appellate court directs that a specific judgment be entered on remand, the lower court must strictly comply with that mandate. In Ex parte Alabama Power Co., 431 So.2d 151 (Ala. 1983), our supreme court stated:

“ ‘It is the duty of the [lower] court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate....’”

Id. at 155 (quoting 5 Am.Jur.2d Appeal & Error § 991 (1962)). The court continued:

“ ‘ “Where a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior.... Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of a reviewing court, has had its merits determined, and has been remanded with specific directions, the court to which such mandate is directed has no power to do anything but obey, otherwise, litigation would never be ended.”

Id. (quoting Kinney v. White, 215 Ala. 247, 248-49,110 So. 394, 394 (1926)).

In this case, the circuit court’s order upholding the Department’s final assessments against the taxpayers was ordered by the supreme court to be “reinstate[d].” That direction neither expressly nor impliedly permitted any further substantive proceedings in the case, much less allowed the circuit court to remand the action to the ALJ to consider any issues. On the contrary, if the circuit court had granted the taxpayers’ motion to remand, the Department would have been entitled to mandamus relief. See Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (stating that “[a] petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the [lower] court, on remand, has complied with the appellate court’s mandate”).

Although it is true that a “trial court has the discretion to consider new issues on remand if the appellate court’s opinion did not constitute or require a final adjudication of the case,” Ex parte Insurance Co. of North America, 523 So.2d 1064, 1069 (Ala.1988), and that, “where the supreme court gives no precise directions as to how a cause is to proceed as to a certain matter on remand, the lower court may proceed in any manner that is not inconsistent with the supreme court’s opinion,” Durbin v. Durbin, 818 So.2d 409, 411 (Ala.Civ.App.2001), those principles have no application here. The judgment in Ex parte Alabama Department of Revenue, supra, did constitute a final adjudication of the case, and it did give precise directions as to which judgment would be in effect.

Moreover, a remand to the ALJ for consideration of the taxpayers’ constitutional arguments would have been inconsistent with the supreme court’s opinion and would have violated the law-of-the-case doctrine. “The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.” Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (citing Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992)). The supreme court’s holding that the gain on the sales of the Coosa properties should be classified as nonbusiness income foreclosed any argument by the taxpayers that the income at issue was apportionable.

The requirement that the business income of a unitary business be apportioned among all the jurisdictions in which it does business is rooted in the Commerce Clause and the Due Process Clause of the United States Constitution. See MeadWestvaco Corp. v. Illinois Dep’t of Revenue, 553 U.S. 16, 24-25, 128 S.Ct. 1498, 170 L.Ed.2d 404 (2008). “The Commerce Clause forbids the States to levy taxes that discriminate against interstate commerce or that burden it by subjecting activities to multiple or unfairly apportioned taxation.” Id. at 24. Consequently, “[u]nder UDITPA [the Uniform Division of Income for Tax Purposes Act] and similar statutes, all business income [of a unitary business] is apportioned and all non-business income is allocated.” I Jerome R. Hellerstein and Walter Hellerstein, State Taxation ¶ 9.05 (3d ed.1998). In Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983), the Supreme Court of the United States explained:

“[T]he [Uniform Division of Income for Tax Purposes Act] distinguishes between the ‘business income’ of a multi-jurisdictional enterprise, which is apportioned by formula, and its ‘non-business’ income, which is not.1
Certain forms of non-business income, such as dividends, are allocated on the basis of the taxpayer’s commercial domicile. Other forms of non-business income, such as capital gains on sales of real property, are allocated on the basis of situs.”

Id. at 167 (citations to the California Revenue & Tax Code omitted). Section § 40-27-1, Art. IV, ¶ 9, a part of the MTC that was modeled on the Uniform Division of Income for Tax Purposes Act, provides that “[a]ll business income shall be apportioned to this state by multiplying the income by a fraction....” (Emphasis added.) There is, however, no constitutional requirement that nonbusiness income be apportioned. That is so because such income, by definition, has not been generated by a taxpayer’s doing business in interstate commerce. Accordingly, § 40-27-1, art. IV, ¶ 6(a), part of Alabama’s version of the MTC, requires that the income at issue in this case be allocated to Alabama.

When our supreme court determined in Ex parte Alabama Department of Revenue that the taxpayers had derived nonbusiness income from the sales of the Coosa properties, the taxpayers’ constitutional arguments based on the unitary-business principle requiring the apportionment of business income became moot.

Conclusion

The circuit court correctly denied the taxpayers’ motion to remand the action to the ALJ for resolution of constitutional issues concerning apportionment because a remand would have been contrary to the supreme court’s mandate in Ex parte Alabama Department of Revenue, supra, and would have violated the law-of-the-case doctrine. The circuit court’s order of April 14, 2011, is affirmed.

2100803 — PETITION DENIED.

2100811 — AFFIRMED.

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

      . The unitary-business principle is used to determine the portion of a corporate taxpayer's total income that is attributable to a particular state. " 'A unitary business is generally defined as two or more business entities that are commonly owned and integrated in a way that transfers value among the affiliated entities.’ ” Apple, Inc. v. Franchise Tax Bd., 199 Cal.App.4th 1, 9, 132 Cal.Rptr.3d 401, 407 (2011) (quoting Citicorp North America, Inc. v. Franchise Tax Bd. 83 Cal.App.4th 1403, 1411 n. 5, 100 Cal.Rptr.2d 509, 517 n. 5 (2000)). See generally Container Corporation of America v. Franchise Tax Bd., 463 U.S. 159, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983).