author: STUART, Justice. COBB, Chief Justice

text:
    Harriet MALOOF and John A. Maloof, Jr. v. JOHN HANCOCK LIFE INSURANCE COMPANY and Parker A. Glasgow.
    1090684.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Leah 0. Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellants.

      Bruce F. Rogers and Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for appellee John Hancock Life Insurance Company (U.S.A.); and Emily Sides Bonds and Timothy M. Davis of Jones, Walker, Waechter, Poitev-ent, Carrére & Denegre, LLP, Birmingham, for appellee Parker A. Glasgow.
   STUART, Justice.

Harriet Maloof and John A. Maloof, Jr., sued John Hancock Life Insurance Company (“John Hancock”) and Parker A. Glasgow, an independent insurance agent, in the Jefferson Circuit Court, alleging fraudulent misrepresentation, suppression, breach of contract, negligent and/or wanton failure to procure insurance, and breach of fiduciary duties arising out of Glasgow’s sale of two universal life-insurance policies to the Maloofs in 1989 and 1992. The trial court entered a summary judgment in favor of John Hancock and Glasgow on all the claims, and the Maloofs appeal as to all the claims except the breach-of-contract claim. We affirm.

I.

John Maloof first became acquainted with Glasgow in approximately 1969 when they met at the University of Aabama at Birmingham Hospital where John worked as a cardiologist; Glasgow sold insurance to other physicians at the hospital. Over the next two decades, John purchased at least two life-insurance policies from Glasgow, as well as disability insurance. In 1989, after consulting with Glasgow, John elected to replace five existing life-insurance policies providing approximately $275,000 of coverage with two new policies issued by Manulife Financial. When questioned by Glasgow’s attorney during his deposition, John explained that the object of these transactions was to provide funds to pay the estate taxes that would be due upon John’s death:

“The reason that these policies were even being discussed was because we were talking about estate planning and we got into a discussion of — of estate taxes and things like that. The entire reason for even considering these policies was to fund estate tax planning. Parker was kind enough to make me an appointment with [Birmingham attorney] Kirby Sevier, who’s an estate planner, and arranged it, and we went over there together. The whole purpose of the policies was to take care of estate planning. That was the reason for the policies.”

John also testified that Glasgow assured him that taking out these policies was in his and Harriet’s best financial interests. One of the policies purchased by John in 1989 was a $500,000 universal-life policy; the other policy was a renewable and convertible $500,000 term-life policy with an initial term of three years. In 1992, John purchased another $500,000 of life insurance from Manulife through Glasgow; this coverage was another universal-life policy with a face value of $250,000 and a $250,000 term rider. John stated in his deposition that this policy was also purchased as an estate-planning move to provide liquidity for any estate taxes due upon his death and that Glasgow again represented that it was in John’s best financial interests to purchase the policy. A1 the policies named Harriet as the beneficiary.

During the next several years, the Ma-loofs received quarterly bills for each of the three insurance polices and paid them as they came due. The quarterly payment for the 1989 universal-life policy was $1,275.25, the quarterly payment for the 1992 universal-life policy was $1,418.14, and the quarterly payment for the 1989 term-life policy .was initially $493, but increased to $1,028 in 1992 and to $1,683 in 1995. In 1998, the Maloofs elected not to renew the term-life policy and it was canceled. Thereafter, the Maloofs continued to pay the quarterly bills for the two universal-life policies without incident until 2007.

On January 4, 2.007, the Maloofs made what would ultimately be their last quarterly payment of $1,418.14 on the 1992 universal-life policy, and on February 12, 2007, the Maloofs made what would ultimately be their last quarterly payment of $1,275.25 on the 1989 universal-life policy. The Maloofs subsequently received a notice from John Hancock dated February 13, 2007, notifying them that an additional premium payment of $5,265.12 was required by April 15, 2007, in order to continue the 1992 universal-life policy until July 13, 2007; otherwise, the notice informed them, the 1992 universal-life policy would terminate on April 15. They later received another notice from John Hancock, dated May 29, 2007, informing them that an additional premium payment of $7,573.15 was required by July 29, 2007, in order to continue the 1989 universal-life policy until November 29, 2007; otherwise, this notice informed them, that policy would terminate on July 29. After receiving these notices, John contacted Glasgow, who had retired in 2000, to inquire why his policies would be terminating, even though he had timely paid the premiums on the policies for approximately 18 years. John states that Glasgow told him that he would investigate the matter, and it appears that Glasgow did subsequently contact John Hancock; however, John states that Glasgow ultimately told him that there was nothing Glasgow could do. At his deposition, John testified that he decided not to pay the additional premiums requested by John Hancock to keep his policies in effect because doing so would essentially be “just throwing money away.” The Maloofs subsequently received notice from John Hancock that the 1992 universal-life policy was terminated on April 15, 2007, and that the 1989 universal-life policy was terminated on July 29, 2007.

On March 13, 2008, the Maloofs sued John Hancock and Glasgow in the Jefferson Circuit Court, alleging fraudulent misrepresentation, suppression, breach of contract, negligent and/or wanton failure to procure insurance, and breach of fiduciary duties arising out of their purchase of the universal-life policies in 1989 and 1992. The gravamen of their complaint was that Glasgow had misrepresented to them that purchasing those insurance policies was in their best financial interests and that the policies would provide benefits that would be available to pay any estate taxes due upon John’s death when, in fact, based upon the projected insurance and interest rates at the time of sale, those policies would likely lapse when John was approximately 78 years old unless the Maloofs at some point substantially increased the amount of the premiums they paid. On April 16, 2008, John Hancock moved the trial court to stay all proceedings pending a ruling from the United States District Court for the Southern District of California on whether the Maloofs’ action was barred by the settlement of a class action overseen by that court in 1998 in which allegedly deceptive sales practices used by Manulife between 1982 and 1993 were challenged; Glasgow subsequently joined in that motion. On June 19, 2008, the trial court entered a limited stay during which some preliminary discovery could still be conducted; however, that stay was lifted in its entirety effective November 19, 2008, after the United States District Court for the Southern District of California held that the Maloofs’ claims were not covered by the settlement of the previous class action except to the extent that the Ma-loofs alleged that the contract charges on their life-insurance policies had been misrepresented.

On December 29, 2008, the trial court set an initial trial date of September 21, 2009; that trial date was later continued until February 1, 2010. On October 22, 2009, Glasgow and John Hancock filed their first formal answers to the Maloofs’ complaint. On November 2, 2009, the Ma-loofs moved to strike those answers, arguing that they were untimely under Rule 12(a), Ala. R. Civ. P., which requires defendants to “serve an answer within 30 days after the service of the summons and complaint.” Accordingly, the Maloofs argued, John Hancock and Glasgow’s answers were filed over 550 days late. On December 7, 2009, the trial- court denied the Maloofs’ motion. The Maloofs then petitioned this Court for a writ of mandamus directing the trial court to strike John Hancock’s and Glasgow’s answers as untimely; however, on January 22, 2010, this Court denied that petition, without an opinion (No. 1090375).

On November 24, 2009, Glasgow moved the trial court to enter a summary judgment in his favor on all counts, and, on November 25, 2009, John Hancock did the same. The Maloofs filed responses opposing the motions, but, on January 5, 2010, the trial court entered an order granting the motions of John Hancock and Glasgow and entering a summary judgment in their favor. On February 10, 2010, the Maloofs filed their notice of appeal to this Court.

II.

The Maloofs first make the general argument that the summary judgment entered by the trial court was erroneous because, they say, it. was based at least partly upon affirmative defenses asserted by John Hancock-and Glasgow; however, the Maloofs argue, those defenses had been effectively waived because John Hancock and Glasgow did not assert them until they filed their untimely answers more than 550 days after the answers were due. See Baldwin County Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 461 (Ala.2008) (stating that the appellant had waived affirmative defenses first asserted in an untimely pleading). However, in both their motion to strike John Hancock’s and Glasgow’s answers and their brief filed with this Court, the Maloofs fail to address the significance of the stay entered by the trial court on June 19, 2008; rather, they argue only that the answers were late because they were not filed within 30 days after the summonses and complaints were served. In fact, the order entered by the trial court on June 19, 2008, granting a limited stay states that “either party shall file an appropriate d[i]spo-sit[i]ve pleading to the court” when the United States District Court for the Southern District of California ruled on John Hancock’s motion asserting that the Ma-loofs’ claims were part of a 1998 class action presided over by that court, thus indicating that the defendants’ obligations to file merits-related pleadings or motions were in abeyance during the duration of the stay. Accordingly, John Hancock’s and Glasgow’s answers were not late merely because, as the Maloofs argue, they were not filed by the 31st day after the Summonses and complaints were served. Instead, the relevant issue would instead be whether the answers were late because they were not filed for almost a year after the stay was lifted on November 19, 2008. However, this is not an issue that was raised by the Maloofs in either the trial court or in their brief filed with this Court. They instead have argued exclusively that the answers were late because they were not filed within 30 days after the summonses and complaints were served. This Court will not consider an argument not raised in the trial court or in the appellate briefs; accordingly, there is no basis on which to hold that the trial court erred in failing to grant the Maloofs’ motion to strike John Hancock’s and Glasgow’s answers. See Yellow Dog Dev., LLC v. Bibb County, 871 So.2d 39, 41 (Ala.2003) (“[T]his Court will not ‘reverse a trial court’s judgment based on arguments not presented to the trial court or based on arguments not made to this [C]ourt.’ ” (quoting Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002))).

III.

We next consider the Maloofs’ arguments that the trial court erred by entering a summary judgment in favor of John Hancock and Glasgow on the Ma-loofs’ fraudulent-misrepresentation and suppression claims, their negligent- and/or wanton-failure-to-procure-insurance claim, and their breach-of-fiduciary-duties claim; the Maloofs do not challenge the judgment entered on their breach-of-contract claim. We review these arguments pursuant to the following 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(e), 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.”

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

The Maloofs’ fraudulent-misrepresentation and suppression claims were premised on the allegation that Glasgow misrepresented to the Maloofs that the universal-life policies were in their best financial interests and that they would provide funds that would be available to pay the estate taxes due upon John’s death, while at the same time suppressing from them the facts that the policies were actually not in their best interests and that benefits from those policies would not be available to pay estate taxes due upon John’s death if he lived beyond approximately age 78. To merit consideration by a jury, both of these claims require some evidence of reasonable reliance, that is, that the Maloofs reasonably relied upon the alleged false representations, Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994), or that they reasonably relied “on the state of affairs as it appeared in the absence of the suppressed information.” Houston County Health Care Auth. v. Williams, 961 So.2d 795, 814 (Ala.2006). In its order granting John Hancock’s and Glasgow’s motions for a summary judgment, the trial court explained its conclusion that evidence of reasonable reliance was lacking:

“Counts one and two of [the Maloofs’] complaint allege fraud and suppression, and the undisputed facts of this case place it squarely within the facts and holding of the Alabama Supreme Court’s recent decision in AmerUS Life Insurance Co. v. Smith, 5 So.3d 1200 (Ala.2008). As in this case, AmerUS involved a plaintiff insured filing suit for substantially similar claims of fraudulent misrepresentation and suppression against his insurer and independent insurance agent. The similarities between the cases are striking insofar as: (1) both AmerUS and this case arise from the sale of universal life policies; (2) both AmerUS and this case involve misrepresentations as to the advisability of plaintiffs’ purchase of the universal life policies; the replacement of life insurance policies owned by the plaintiffs, the amount of premiums to be paid, and the length of time in which those premiums would carry the policies; (3) in both AmerUS and this case, the universal life policies were sold by independent insurance agents who were appointed to sell the products of the insurance company and who sold a substantial amount of business through the insurance company; (4) in both AmerUS and this case, the universal life policies issued by the insurance company called for the payment of ‘planned premiums’; (5) in both AmerUS and this case, the universal life policies advised the plaintiffs to read their policy carefully; (6) in both Ame-rUS and this case, the universal life policies provided the plaintiffs with a Tree-look’ provision; (7) in both Ame-rUS and this case, the universal life policies were self-described as ‘Flexible Premium Adjustable Life Policies’; (8) in both AmerUS and this case, the universal life policies contained statements disclosing that the policies would lapse if sufficient premiums were not paid to keep the policies in force; (9) in both AmerUS and this case, plaintiffs were provided documents both at the time of issuance of the policies and afterwards, including annual statements, showing the performance of the policies based upon assumed interest rates and indicating policy lapses, all -of which contradicted the alleged misrepresentations made by the insurance agent; and (10) in both AmerUS and this case, it was communicated to the plaintiffs that additional premiums beyond the planned premium would be required to sustain the policies. In AmerUS, the communication was verbal; here, the communication occurred in two separate letters in 1992 and 1997 written by the insurance agent and received and kept by the [Maloofs]. Based upon the holding in AmerUS and its overwhelming application to the present case, this court finds, as a matter of law, that [the Maloofs] cannot establish the necessary element of reasonable reliance in order to sustain their fraud and suppression claims. For these same reasons, [the Maloofs] were likewise put on notice of the alleged fraud more than two years prior to the commencement to this action, and, therefore, these claims are barred by the applicable statute of limitations.
“Additional grounds bar some of the misrepresentations claimed by [the Ma-loofs]. The statement allegedly made to plaintiff John Maloof as to what was in his best financial interests is a statement of opinion and not a statement of a material fact. Moreover, the statement that the policies would be available to pay estate taxes was not false because the universal life policies would have been available for such purposes if sufficient premiums had been paid.
“Other grounds likewise mandate dismissal of [the Maloofs’] suppression claims as [the Maloofs] have failed to offer substantial evidence to establish a duty to disclose by the defendants, and the court finds that there was no special relationship between the insurance agent and the [Maloofs]. As to [the Maloofs’] claims regarding suppression of the policies’ contractual charges, [the Maloofs] agree that such claims are barred by the order entered earlier by the United States District Court for the Southern District of California and filed in this case.”

In their briefs to this Court, John Hancock and Glasgow reiterate the rationale of the trial court, while the Maloofs attempt to distinguish AmerUS Life Insurance Co. v. Smith, 5 So.3d 1200 (Ala.2008), arguing that the facts in this case are substantially different from the facts there and that reasonable reliance is a question for the jury. For the reasons that follow, we disagree.

Regardless of any oral misrepresentations that Glasgow may have made to convince the Maloofs to apply for new life-insurance policies, it is undisputed that the Maloofs had 20 days to review both the 1989 and 1992 universal-life policies after they received the policies and that they could cancel the policies at any time within that 20-day “free-look” period and receive a full refund of any premiums paid. Page three of both the 1989 and 1992 policies clearly states that “[t]his policy provides life insurance coverage for the lifetime of the life insured if sufficient premiums are paid. Premium payments in addition to the planned premium may need to be made to keep this policy and coverage in force.” (Emphasis added.) When questioned by Glasgow’s attorney about this language when he was deposed, John acknowledged that he understood its plain meaning:

“Q: What does that mean please, sir?
“A: It means you may have to pay more to keep the policy in force.
“Q: All right. And you have no trouble understanding that language?
“A: I understand it.
“Q: Okay. And so you would have understood back in [19]89, when you got this policy, that you may be required to make additional premium payments in the future, is that right?
“A: Yes.”

Moreover, within the 20-day free-look period the Maloofs had to review the 1989 and 1992 universal-life policies after receiving them, they also received a document produced by John Hancock labeled “Statement of Policy Cost and Benefit Information” for each policy. This document summarized the contract and surrender charges associated with the policy, as well as the expected life of the policy based on the premiums paid and interest rates and mortality rates applied. The document received in conjunction with the 1989 universal-life policy stated that the policy would lapse in approximately 4 years based on guaranteed interest rates and mortality rates, while the policy would lapse in approximately 18 years based on the current interest rates and mortality rates. The document received in conjunction with the 1992 universal-life policy stated that the policy would lapse in approximately 4 years based on guaranteed interest rates and mortality rates, while the policy would lapse in approximately 16 years based on the current interest rates and mortality rates. Both documents also contained the following disclaimer:

“The projected results of your insurance program may change significantly with variations in interest rates; mortality rates (risk charges); and the frequency, timing and amounts of premium payments. The projected values using ‘current rates’ are not guaranteed and the values with guaranteed rates are the minimum that you will receive upon the surrender of the policy.
“Read your policy very carefully. In addition, there are other factors which could affect the projected values.”

John acknowledged in his deposition that the language of this disclaimer was “perfectly clear.”

In AmerUS, this Court stated:

“In light of the language of the documents surrounding the insureds’ purchase of the life-insurance policies at issue in this case and the conflict between [the insurance agent’s] alleged misrepresentations and the documents presented to [the plaintiff], it cannot be said that [the plaintiff] reasonably relied on [the insurance agent’s] representations. As this Court stated in Torres [v. State Farm Fire & Cas. Co., 438 So.2d 757 (Ala.1983) ]: ‘[T]he right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests.’ 438 So.2d at 759. The insureds here took no precautions to safeguard their interests. If nothing else, the language in the policies and the cost-benefit statement should have provoked inquiry or a simple investigation of the facts by [the plaintiff]. Instead, based upon the record before us, we must conclude that [the plaintiff] ‘blindly trust[ed]’ [the insurance agent] and ‘close[d][his] eyes where ordinary diligence require[d] [him] to see.’ Munroe v. Pritchett, 16 Ala. 785, 789 (1849).... We conclude that no reasonable person could read the policies and the cost-benefit statement and not be put on inquiry as to the existence of inconsistencies, thereby making reliance on [the insurance agent’s] representations unreasonable as a matter of law. Because the insureds failed to present substantial evidence indicating that [the plaintiffs] reliance on [the insurance agent’s] representations was reasonable, [the life insurance company] is entitled to a JML.”

5 So.3d at 1215-16. We agree with the trial court that our holding in AmerUS controls here. The Maloofs argue that this case is different from AmerUS because the alleged misrepresentations were different; however, that fact is ultimately immaterial. The relevant inquiry is the same in both AmerUS and this case: whether it was reasonable for the insured to rely on an insurance agent’s representations about an insurance policy when those representations are contradicted by language in the insurance policy itself. This Court has repeatedly stated that it is not, not only in AmerUS, but also in Baker v. Metropolitan Life Insurance Co., 907 So.2d 419 (Ala.2005); Liberty National Life Insurance Co. v. Ingram, 887 So.2d 222 (Ala.2004); and Alfa Life Insurance Corp. v. Green, 881 So.2d 987 (Ala.2003).

The Maloofs claim that Glasgow misrepresented to them that the universal-life policies they purchased were in their best interests and that they would provide funds that would be available to pay the estate taxes due upon John’s death, while at the same time suppressing from them the facts that the policies were actually not in their best interests and that benefits from those policies would not be available to pay estate taxes due upon John’s death if he lived beyond approximately age 78. However, the Maloofs could not have reasonably relied on the alleged misrepresentations concerning the availability of benefits from those policies to pay estate taxes due upon John’s death in light of the clear language of the insurance policies. Moreover, with regard to Glasgow’s alleged misrepresentation that the purchase of the 1989 and 1992 universal-life policies was in the Maloofs’ best financial interests, we agree with the trial court that this was merely a statement of an opinion, not of a material fact. See State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 322-23 (Ala.1999) (holding that insurance agent’s statements that the purchased insurance policy was “the Cadillac of all insurance” and “the very best” amounted to mere puffery that could not reasonably be relied upon in light of the insured’s level of education and degree of sophistication). Accordingly, the trial court did not err by entering a summary judgment in favor of John Hancock and Glasgow on the Ma-loofs’ fraud claims.

The Maloofs have also argued that the trial court erred by entering a summary judgment in favor of John Hancock and Glasgow on their claim alleging that John Hancock and Glasgow negligently and/or wantonly failed to procure insurance for them. We have stated that “ ‘when an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damages resulting therefrom.’ ” Crump v. Geer Bros., 336 So.2d 1091, 1093 (Ala.1976) (quoting Timmerman Ins. Agency, Inc. v. Miller, 285 Ala. 82, 85, 229 So.2d 475, 477 (1969)). The Maloofs allege that Glasgow agreed to procure life-insurance policies for them that would provide benefits available to pay estate taxes due upon John’s death; however, they argue, they now have no such life-insurance policies.

The undisputed facts indicate that Glasgow did in fact procure two universal life-insurance policies for the Maloofs and that, had the Maloofs continued to pay sufficient premiums on those policies, they would have remained in effect and the benefits of those policies would have been available for any purpose after John died. John Hancock did not spontaneously act to cancel the policies in 2007, nor did Glasgow take any action leading to their cancellation; rather, the Maloofs elected not to pay the increased premiums required to keep the policies in effect. There is no doubt that they made that decision with full knowledge of the fact that the failure to pay the increased premiums would lead to the cancellation of the policies. Thus, the undisputed facts indicate that Glasgow in fact fulfilled the Maloofs’ request to procure life-insurance policies that would provide funds that could be used to pay estate taxes upon John’s death, and those policies were canceled only after the Ma-loofs failed to pay the required premiums. John Hancock and Glasgow cannot be held liable for the negligent or wanton failure to procure insurance based on the Maloofs’ failure to pay the required premiums; accordingly, the summary judgment was' properly entered on this count.

The Maloofs’ final argument is that the trial court erred by entering a summary judgment in favor of John Hancock and Glasgow on the Maloofs’ claim that John Hancock and Glasgow breached certain duties owed to them because of their alleged fiduciary relationship with Glasgow, namely, the duty to disclose material facts related to the insurance policies and the duty to act in the Maloofs’ best interests. This Court discussed this claim in a similar context in Guinn v. American Integrity Insurance Co., 568 So.2d 760, 764 (Ala.1990), where we stated:

“[The plaintiffs] breach of fiduciary-duty claim was premised on her allegation that her reposal of trust in [the defendant insurance agents] to advise her on what policies she should purchase, coupled with their acceptance of that trust, created a fiduciary relationship. She argues that her reliance, along with her advanced age, lack of mental strength, lack of knowledge of insurance matters, and the agents’ superior knowledge concerning insurance, constituted special circumstances that warranted the imposition of a fiduciary duty on [the agents].
“This Court has held that an insurance agent may be the agent of the insured, the insurer, or both. Washington National Ins. Co. v. Strickland, 491 So.2d 872, 874-75 (Ala.1985). However, an insurance agent is generally not considered to be an agent of the insured until a contract of insurance has been entered into. Strickland, supra; Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060 (Ala.1978). Until such a contractual relationship has been established, the parties remain in the relationship of salesperson and prospective customer. The salesperson and his principal may be liable for damages if he misrepresents material facts in an attempt to induce the prospective customer to enter into the contract, Harrell v. Dodson, 398 So.2d 272 (Ala.1981); Ala.Code 1975, § 6-5-101 through 6-5-104. However, that potential liability does not indicate the existence of a fiduciary relationship.
“In addition, the existence of a duty is a question of law for the trial court. Berkel & Co. Contractors v. Providence Hospital, 454 So.2d 496 (Ala.1984); Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972). Because [the plaintiff] failed to present evidence of a relationship between herself and [the defendant agents] that gave rise to a fiduciary duty, the court did not err in dismissing the claim based on an alleged fiduciary duty.”

For the reasons that follow, we similarly conclude in this case that there was insufficient evidence of a relationship between the parties that would give rise to fiduciary duties.

The Maloofs summarize their argument that they had a special relationship with Glasgow that gave rise to fiduciary duties as follows in their brief to this Court:

“For many years, [the Maloofs] entrusted their financial affairs and estate planning needs to Glasgow. His relationship with [the Maloofs] was far more confidential and complex than that of a mere insurance salesman. Glasgow indicated to the [Maloofs] that he was their ‘financial planner.’ Glasgow not only sold insurance products to the [Ma-loofs], but guided and advised [them] regarding important financial and estate planning affairs and decisions. He made insurance, financial and estate planning recommendations to the Ma-loofs. He referred them to a lawyer and made the appointment with the lawyer. He even went with the Maloofs to meet with the lawyer. He witnessed their wills. Their relationship far surpasses that of merely a ‘salesperson and prospective customer’ and does indeed give rise to a fiduciary duty. [Guinn, 568 So.2d] at 764. Glasgow’s relationship with [the Maloofs] is precisely the type that gives rise to a fiduciary duty.”
“Every insurance agent I’ve ever known has had a lot of recommendations and a lot of promises and wants to sell me something and wants to get money and Parker [Glasgow] is no exception. So, I’m certain that when I talked to him he told me whatever was favorable that he wanted me to hear, and that’s the way it is. That’s — that’s the way it was. And Parker called. I would see him. I wouldn’t see him every time, but — because I knew that he wanted to sell me something. So, even though I liked him I’m not stupid and I knew he wanted to sell me something and I didn’t want to just buy something for no reason. So, I’m sure he explained to me whatever it was he thought that I should know or that I ought to know to make me buy the policy.”

Maloofs’ brief, pp. 59-60. However, the Maloofs’ general contention that they had a trusting and confidential relationship with Glasgow is belied by the testimony John gave in his deposition regarding that relationship, where he made the following statements:

“[T]here was a consistent record of trying to sell me policies, and for that reason there was a lot less credibility between me and Mr. Glasgow than there might have been otherwise.”
“My perception was that he wanted to sell me policies for whatever reason rather than the correct reason.”
“He was forever trying to sell me policies. Every time I saw him he had one idea after another selling — do this, do that, trade this in, do that. All he wanted to do was sell me policies and make a commission.”
“I always considered whatever [Glasgow] said. I took everything with a grain of salt.”

This testimony indicates that the Maloofs certainly did not view their relationship with Glasgow, though cordial and longstanding, as anything special or outside the typical salesperson-customer relationship. Combined with the facts in the record indicating that John is a well-educated professional and an experienced investor, we agree with the conclusion of the trial court that there was “no evidence that would justify the imposition of a fiduciary duty owed to [the Maloofs] by [John Hancock and Glasgow]” and that the summary judgment was accordingly proper.

IV.

The Maloofs sued John Hancock and Glasgow, alleging fraudulent misrepresentation, suppression, breach of contract, negligent and/or wanton failure to procure insurance, and breach of fiduciary duties arising out of Glasgow’s sale of certain life-insurance policies to the Maloofs in 1989 and 1992. After the trial court entered a summary judgment in favor of John Hancock and Glasgow on all the claims asserted by the Maloofs, the Maloofs appealed. Because no genuine issue of material fact exists, we affirm the judgment of the trial court.

AFFIRMED.

LYONS, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

WOODALL, J., concurs in the result.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent. I believe that, in affirming the summary judgement in this case, the majority improperly substitutes itself for the trier of fact. Since Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997), the test for when an aggrieved person is charged with discovering fraud has been “reasonable reliance.”

“[T]he trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms.”

693 So.2d at 421 (emphasis added).

The standard of appellate review of a summary judgment requires that we view the evidence most favorably in favor of the nonmovants, John A. Maloof, Jr., and Harriet Maloof, Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990). I emphasize that neither the trial court nor this Court is in the business of weighing the facts at the summary-judgment stage. That is, we should consider only whether the evidence offered in support of the summary-judgment motion 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Moreover, the nature of the misrepresentations constituting the fraud and suppression asserted by the Maloofs in this case is of particular note. Specifically, Parker Glasgow, an agent for John Hancock Insurance Company, represented that the policies would be in the Maloofs’ best financial interests and that the policies would supply benefits at John’s death of approximately $1,000,000. Although the policies and documents delivered to the Maloofs indicated that they might be subject to additional premium payments, representations by Glasgow indicated that the policies would become self-sustaining, and his October 30, 1992, letter to the Maloofs indicated that

“[the policy] is building up cash value and this cash value will help to keep the premiums level at a later date. It may be necessary to pay more into this policy in order for it to be maintained at the full death benefit level of $500,000 past age 74 according to current interest rates. I went over this with you in a letter February 7, 1990. However, the insurance amount could be reduced at some later date and that would have the effect of extending the policy for a longer period of time. For example, you could stop paying the premium at age 65, reduce the death benefit and, thereby, extend the coverage into your 80’s.”

(Emphasis supplied.)

Whether the policy language suggesting that additional premiums might be required negates a claim of fraud in light of this letter and the evidence concerning Glasgow’s representations is a genuine issue of material fact that precludes a summary judgment. The trier of fact could reasonably infer that Glasgow’s representations and letter do suggest that the policies will generate income sufficient to pay extra premium requirements so that the policies will remain in force in spite of any increased premium.

There is no evidence in this case suggesting that at the time John Maloof executed these policies he was informed, or should have reasonably been able to discover, that greatly increased premiums, premiums approaching the actual value of the policies, would be absolutely necessary in order to sustain the policies. Rather, the policies and the accompanying documentation note that “[t]he projected results of your insurance program may change significantly with variations in interest rates; mortality rates (risk charges); and the frequency, timing and amounts of premium payments.” Whether policy results may be “significantly” better or worse than expected was left to the speculation of the policyholder. In this case, of course, Glasgow’s speculation for John Maloof was that the policy would generate such income that premium payments might be reduced or eliminated. However, the evidence presented by the Maloofs’ expert, Dr. David Lange, makes clear that these policies were so significantly underfunded that John Hancock knew at the time it issued the policies that significant additional payments would almost certainly be necessary. When asked about the language in Glasgow’s letter that premium payments “may be” required, Dr. Lange stated:

“But [Glasgow is] an insurance sales person who sold this policy and ran the illustration and would certainly be aware of the Statement of Policy Cost and Benefit Information and be aware the interest rates had declined.
“In fact, the — that this policy by ‘92, and since he had run a large number of illustrations in these various documents, he had to know from the beginning it wasn’t going to make it. It was going to make it to seventy-four or thereabouts. And since interest rates were coming down, was unlikely to do so. I’m amazed, absolutely amazed that he would use the phrase: ‘it may be necessary.’ ”

Further, when questioned about Glasgow’s representation that the policy period could be extended by a reduction in the death benefit, Dr. Lange stated, “It’s actually a complete falsity.”

A reasonable person could understand from this evidence that it was readily apparent to John Hancock and to Glasgow that the policies were so underfunded at the time they were issued that they would fail in the purpose intended for the Ma-loofs. Moreover, an insurance expert like Dr. Lange, trained in the mathematics of insurance policies, could also uncover this fact. However, when questioned about a layman’s ability to understand the policies, Dr. Lange stated:

“The difficulty I have with that is because of the calculations involved in there, that I’m not sure someone, even if they read it, would appreciate the mathematics involved.”

Thus, there is a genuine issue of material fact in this case as to whether the various documents supplied by John Hancock, including the policies and the annual statements and updates, disclosed facts from which a layman like John Maloof could discern that the policies were so underfunded that they could never serve his estate-planning purposes. Further, none of those documents directly contradict Glasgow’s representations that the policies would generate income that would significantly defray additional premium costs or that the policies could be extended at the same premium costs by reducing death benefits. None of the documents supplied to the Maloofs before the policies were canceled makes clear that huge increases in premium payments will absolutely be required in order to maintain the policies. In fact, the Maloofs became aware of the fraud and suppression asserted in their claims only when they received notice that the policies were being canceled unless the Maloofs paid substantial additional premiums. Further, this cancellation was to take place in spite of the fact that the Maloofs had timely paid all premiums required on the policies during the 18 years since the first policy was purchased.

In addition to my concern that the summary judgment incorrectly holds that there is no genuine issue of fact as to whether the Maloofs could have relied on the misrepresentations by Glasgow in this case, the above recitation of facts highlights the ambiguities in the instant policies, particularly from a layman’s perspective. Although the analysis of this issue does not involve a breach-of-contract claim, the majority’s conclusion that the policies and the documentation from John Hancock are clear about the effect, or lack of effect, of these policies certainly flies in the face of the rule that ambiguities in an insurance contract are to be construed against the drafter of the contract. Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 695 (Ala.2001). See also Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974).

Although the trial court relied on AmerUS Life Insurance Co. v. Smith, 5 So.3d 1200 (Ala.2008), I believe that there are significant differences between the facts in this case and those in that case. In Ame-rUS, the plaintiff admitted that he did not read his policies, and the information supplied in the policy information directly contradicted the representations of the insurance agent. Thus, the Court concluded that the plaintiffs reliance on the agent’s representations could not, as a matter of law, be reasonable. This is not the case here. In this case, without the knowledge of an insurance expert, it is not clear that the representations that the policies would generate income that would significantly defray premium costs are inconsistent with the language in the policies that “[t]he projected results of your insurance program may change significantly....” Nor is it clear from the policies and subsequent documentation that the policies were so underfunded as to be, in the words’ of Dr. Lange, “DOA.” In fact, Dr. Lange indicated that a layman could not easily comprehend the financial-outcome implications of the policies. Further, the increased premiums required to sustain the policy in AmerUS were approximately $25,000; in this case the amount of premiums necessary to extend John Maloofs million-dollar coverage until age 90 exceeded $1,036,000.

Moreover, the financial and business relationship between the plaintiff and the agent in AmerUS was not nearly as significant as the relationship between John Ma-loof and Parker Glasgow in this case. As I noted in my dissent in AmerUS Life Insurance Co. v. Smith, 5 So.3d at 1217, the reasonable-reliance standard adopted by the Court in Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997), which imputes to a signatory the knowledge of the contents of a contract, is subject to certain exceptions. Potter v. First Real Estate Co., 844 So.2d 540 (Ala.2002).

“ ‘The instant case does not come within the rule of Southern Building & Loan Ass’n v. Dinsmore, 225 Ala. 550, 144 So. 21 (1932), that the law imputes no knowledge of a contract’s contents to a party who signs the contract without having read or having knowledge of its contents, if that party is lulled into a feeling of security because of a misrepresentation of the contents of the contract and because of special circumstances, relationships, or disability of the party relating to the contract’s execution. See also Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala.1983); Rose v. Lewis, 157 Ala. 521, 48 So. 105 (1908).’ ”

AmerUS, 5 So.3d at 1217 (Cobb, C.J., dissenting) (quoting Holman v. Joe Steele Realty, Inc., 485 So.2d 1142, 1144 (Ala.1986)). As we recognized in Potter, supra, a special relationship between the contract signatory, here John Maloof, and the sales agent, here Parker Glasgow, can constitute an exception to the imputation of knowledge required by the reasonable-reliance standard. In Potter, the relationship was between the plaintiffs, a young married couple, and their real-estate agent, who misrepresented to them that the property that they sought to purchase was not located in a flood plain. Although that relationship was entirely contractual, the Court determined that the nature of that relationship, in which the real-estate agent asserted that she represented the plaintiff buyers as much as she represented the seller, was such that there was a question for the trier of fact as to whether the buyers had notice of a survey showing that the property was located in a flood plain. Here, there is evidence in the record that could support the inference that John Ma-loof thought of Glasgow as just another insurance salesman. However, there is also evidence in this record indicating otherwise, and we must view all the evidence most favorably to the Maloofs, including John Maloofs testimony that he relied on Glasgow, Wilma Corp., supra. Under this standard, we consider only whether there is also evidence from which the jury could conclude that Glasgow had a special relationship with John Maloof that supported John Maloofs reliance on Glasgow’s assurance because the jury, as trier of fact, would be free to disregard other statements by John Maloof supporting a different inference.

In fact, the record shows that Glasgow had been John Maloofs exclusive insurance agent for some 20 years before the transactions at issue in this case and that he also served as John Maloofs “financial planner.” Further, John Maloof received reports, at least annually, from Glasgow concerning his financial interests and the effect of his insurance on his estate planning; Glasgow also participated in estate-planning meetings between John Maloof and his lawyer, and he contributed to those meetings by representing that the policies were valid additional assets of John Ma-loofs estate. As I noted in my dissent in AmerUS, the significance of a relationship of this type is entirely distinct from a single transaction between an insurance agent and a client; the relationship in this case is more of a special relationship than the “special relationship” based on a single transaction that this Court recognized in Potter. If the law in Potter concerning what constitutes a special relationship is no longer to be recognized, then Potter should be overruled. Accordingly, I believe that the question of Glasgow’s special relationship with John Maloof presents at least a question of fact as to whether John Maloof could have reasonably relied on Glasgow’s representations under the facts of this case.

Thus, I disagree that the difference in nature of the misrepresentations in this case and those in AmerUS are ultimately immaterial — in this case, unlike in Ame-rUS, there is a question of fact as to whether the policies and subsequent documents supplied to the Maloofs could reasonably be understood by one who did not have specialized knowledge of the mathematics underlying the policies; it is certainly not .apparent that the cost of keeping the policies would come to exceed the actual value of the policies in less than 20 years. The record also shows that Glasgow’s representations as to the performance of the policies was not directly contradicted by the policies and other documentation, and there is at least a question of fact as to whether Glasgow was in such a special relationship with John Maloof that the Maloofs’ reliance on the misrepresentations was reasonable under the circumstances. The question of reasonable reliance in this case is a question of fact to be decided by the trier of fact; reasonable reliance is not a standard that should be used to shield those who make false representations that they know, or should know, are untrue from the damage caused by their lies. The summary judgment in this case should be reversed. Therefore, I dissent.

      . Manulife Financial acquired John Hancock in approximately 2004 and now conducts most of its business in the United States as John Hancock.

      . John Hancock and Glasgow submitted additional evidence indicating that, over the approximately 18-year period between the time they purchased the first universal-life policy in 1989 and the time John testified that he realized his policy was in danger of lapsing in 2007, the Maloofs were sent other letters and documents indicating that the universal-life policies could lapse before John died.

      . DOA is an acronym for "dead on arrival.”


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    CHORBA-LEE SCHOLARSHIP FUND, INC., et al. v. Sheriff Mike HALE et al.
    1090585.
    Supreme Court of Alabama.
    Sept. 30, 2010.
    Erskine R. Mathis, Birmingham, for appellants.
    Keith Jackson and Jay Murrill of Riley & Jackson, P.C., Birmingham, for appellee Sheriff Mike Hale.
    Benjamin S. Goldman of Hand Arendall LLC, Birmingham, for amicus curiae City of Tarrant, in support of the appellant.
   BOLIN, Justice.

Chorba-Lee Scholarship Fund, Inc.; Community Network Association, Inc.; Shining Light Ministries; Israel Missionary Church; Save the Youth; Bagley Volunteer Fire & Rescue, Inc.; Cherokee Tribe of North East Aabama; Paws for Thought Animal Shelter; Take a Step Up; Roebuck Elks Lodge # 2123; JKM Community Development Corp.; World Over-comers Community Development Corp.; New Covenant CDC; H.E.A.T.; New Covenant Outreach Ministries; and Charity Pig Roast (hereinafter referred to collectively as “the plaintiffs”) appeal from the trial court’s order upholding the Jefferson County Bingo Act, Act No. 80-609, Ala. Acts 1980, as amended by Act No. 94-393, Ala. Acts 1994, and later by Act No. 99-415, Ala. Acts 1999 (“the Bingo Act”), against the plaintiffs’ constitutional challenge and declaring valid certain regulations promulgated by the Jefferson County Sheriff pursuant to the Bingo Act.

Article IV, § 65, Ala. Const.1901, generally prohibits lotteries, including bingo, in the State of Alabama. See Barber v. Cornerstone Cmty. Outreach, Inc., 42 So.3d 65 (Ala.2009). Section 65 provides:

“The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; and all acts, or parts of acts heretofore passed by the legislature of this state, authorizing a lottery or lotteries, and all acts amendatory thereof, or supplemental thereto, are hereby avoided.”

However, bingo is allowed in certain counties in the State pursuant to various constitutional amendments. In 1980, House Bill 521, which proposed a constitutional amendment authorizing the operation of bingo games in Jefferson County, was introduced into the legislature. The proposed constitutional amendment required that a referendum be held in Jefferson County, which was held on September 2, 1980. The proposed amendment was approved by the citizens and became Amendment No. 386 to the Alabama Constitution of 1901 (now Local Amendments to Ala. Const.1901, Jefferson County, § 2 (Off.Recomp.)). Amendment No. 386, as amended by Amendment No. 600, provides as follows:

“The operation of bingo games for prizes or money by nonprofit organizations for charitable or educational purposes shall be legal in Jefferson County, subject to the provisions of any resolution or ordinance by the county governing body or the governing bodies of the respective cities and towns, within their respective jurisdictions. The said governing bodies shall have the authority to promulgate rules and regulations for the licensing and operation of bingo games, within their respective jurisdictions, provided, however, that said governing bodies must insure compliance with the following provisions:
“(a) No person under the age of 19 shall be permitted to play any game or games of bingo, nor shall any person under the age of 19 be permitted to conduct or assist in the conduct of any game of bingo;
“(b) No bingo license shall be issued to any nonprofit organization, unless such organization shall have been in existence for at least 24 months immediately prior to the issuance of the license;
“(c) Bingo games shall be operated only on the premises owned or leased by the nonprofit organization operating the bingo game. If the premises is leased, the rate of rental shall not be based on a percentage of receipts or profits resulting from the operation of bingo games;
“(d) No nonprofit organization shall enter into any contract with any individual, firm, association or corporation to have said individual or entity operate bingo games or concessions on behalf of the nonprofit organization, nor shall said nonprofit organization pay consulting fees to any individual or entity for any services performed in relation to the operation or conduct of a bingo game;
“(e) A nonprofit organization shall not lend its name or allow its identity to be used by any other person or entity in the operating or advertising of a bingo game in which said nonprofit organization is not directly and solely operating said bingo game;
“(f) Prizes given by any nonprofit organization for the playing of bingo games in Jefferson County shall not exceed the amounts set by local law;
“(g) No person or organization, by whatever name or composition thereof, shall take any salary, expense money, or fees as remuneration for services rendered in the operation of any bingo game.”

Introduced simultaneously with House Bill 521 was House Bill 520, which was the enabling legislation for the proposed constitutional amendment. This bill passed the legislature, became Act No. 80-609, Ala. Acts 1980, and, as amended, became known as the Bingo Act. The Bingo Act defines a number of key terms and also provides a detailed statement of the framework of regulations and limitations in which a qualified organization under the Bingo Act must operate its bingo game. The Bingo Act also provides, in part, the following:

“Relating to Jefferson County; permitting qualified organizations to operate bingo games within the county; providing for the regulation, permit granting and revocation and supervision of such bingo games; providing for a tax exemption; providing for penalties; providing for a referendum of the voters of this county on the question of whether the act will become effective in
the county unless the voters thereof approve the constitutional amendment; and providing that the act shall become effective upon the adoption of an amendment to the Constitution of Alabama empowering the Legislature to authorize bingo within Jefferson County.
“Section 3. Operation of Bingo Games: Permit Required, (a) Any provisions of the law to the contrary notwithstanding, no qualified organization shall be permitted to operate a bingo game until the sheriff issues a permit to the organization authorizing it to do so. In the event of any controversy concerning whether or not certain activity constitutes bingo for which a permit may be issued, the decision of the sheriff shall control. The permit described in this law is in addition to and not in lieu of any other permits or licenses which may be required by the county or any political subdivision thereof, and no bingo game shall be operated until such time as all requisite permits and licenses have been obtained, including any permit that may be required by any municipality having jurisdiction over the place where the bingo is proposed to be played. A per-mitholder may hold only one permit and that permit is valid for only one location. A permit is not assignable or transferable.
“(b) Any municipality wholly or partially within Jefferson County may elect to establish a Bingo control ordinance parallel to and similar to this Act and containing the same restrictions and controls as specified herein, to be administered by the Chief of Police of such municipality who shall, in such event, if provided for in the municipal ordinance, exercise the same powers and duties with respect to games of Bingo as are provided herein to be exercised by the Sheriff, and in such event the Chief of Police shall be the primary, but not exclusive, enforcement officer to assure enforcement of the regulation of such games within the boundaries of such municipalities as herein provided. Any ordinance so adopted by such a municipality shall be at least as restrictive of the game of Bingo as this Act and no person, organization, or other legal entity who, or which, would not be so authorized hereunder shall be allowed to conduct Bingo games under such municipal ordinances. Any fees for permits provided for in ordinances so adopted by a municipality shall be in lieu of the permit fees provided for otherwise in this Act.
“Section 10. Management and Operation of Bingo, Persons Eligible, Compensation, Equipment, Prizes, Advertisement.
“(4) Prizes given by any organization for the playing of bingo games shall not exceed five thousand dollars ($5,000) in cash or gifts of equivalent value during any bingo session or seven thousand five hundred dollars ($7,500) in cash or gifts of equivalent value during any calendar week.
“(8) A permitholder shall not conduct more than one bingo session during any one calendar day and no more than two bingo sessions during any one calendar week and no session shall exceed 5 hours.”

Since the operation of bingo games began in Jefferson County, the Office of the Sheriff of Jefferson County had maintained a program of regulating bingo in Jefferson County pursuant to the Bingo Act. However, on September 20, 2007, David Barber, then the Jefferson County District Attorney, wrote the following letter to Mike Hale, the Sheriff of Jefferson County:

“At your request, I am writing to confirm and explain my opinion that Alabama Act No. 80-609 and its delegation of regulatory authority to the sheriff are invalid. Likewise, it is my opinion that the current bingo licensing system that you inherited is not authorized by constitutional amendment.
“Art. IV, § 65, of the Alabama Constitution bars the legislature from authorizing bingo and any other lottery-like enterprises. Constitutional Amendment 386 created an exception to the prohibition on bingo and granted regulatory power to the county commission or the local governing bodies of Jefferson County’s cities and towns. The Amendment did not grant any power to the legislature or the Jefferson County Sheriff. However, when the legislature proposed Amendment 386, it also passed Alabama Act No. 80-609 to regulate bingo in Jefferson County and delegate further regulatory authority to the sheriff.
“I am of the opinion that Act No. 80-609 is invalid given the absence of a constitutional amendment specifically granting bingo regulatory power to the legislature. If Act No. 80-609 is invalid, then its delegation of authority to the Jefferson County Sheriff is also’invalid. Consequently, it is my opinion that your office does not have authority to continue the current bingo licensing system. My office would not be able to prosecute anyone charged with violating Act No. 80-609 or the related sheriffs regulations. However, Constitutional Amendment 386 itself places significant restrictions on the operation of bingo. Individuals violating those restrictions would lose the protection of the Amendment and could be prosecuted for violating Alabama’s gambling statutes.
“I realize that my position has resulted in uncertainty about future bingo regulation in Jefferson County. However, we are obligated to follow Constitutional Amendment 386 until another amendment is passed or a regulatory plan is created under the authority of that Amendment.”

Based on the authority of Barber’s letter, Sheriff Hale ceased issuing permits and regulations for the operation of bingo in Jefferson County.

On March 11, 2009, J. Scott Vowell, the presiding judge of the Jefferson Circuit Court, entered an order in State v. $⅛,932 United States Currency, CV-08-2781, holding that the Bingo Act was not unconstitutional. The Court stated:

“The Court has examined the Constitutional Amendment [No. 386] and the [Bingo Act]. The [Bingo Act] does not appear to the Court to be in conflict with the Constitutional Amendment. It would be strange if they were in conflict, since they were drafted and introduced at the same time by the same Representative. The people of Jefferson County approved the Constitutional Amendment in a referendum and by its own terms, the [Bingo Act] thereupon became effective.
“Therefore, this Court finds and declares that Alabama Act Number 80-609 is valid and does not contradict the Constitution of Alabama (1901), as amended.”

Pursuant to the order entered by Judge Vowell in case no. CV-08-2781, Sheriff Hale, on September 9, 2009, issued “Promulgated Bingo Rules and Regulations, for Jefferson County, Alabama” (the “new bingo rules”). The new bingo rules, which were sent to all entities operating bingo games in Jefferson County, were accompanied by a cover letter which stated:

“In accordance with Court Order No. CV-08-2781, March 11, 2009 (Ruling by the Honorable J. Scott Vowell, Presiding Judge, Circuit Court of Jefferson County), that the Alabama Act No. 80-609, the ‘Jefferson County Bingo Act’ is valid, the following Promulgated rules are issued as required after review and consultation with both the Birmingham and Bessemer District Attorney’s Offices.
“The rules are hereby published today, September 9, 2009, and shall be in effect 30 days from publication (October 9, 2009). Any organization operating Bingo inside Jefferson County shall submit a complete application to the Office of the Sheriff prior to October 9, 2009.”

The new bingo rules essentially tracked the language found in the Bingo Act and required any organization wishing to operate a bingo game in Jefferson County to first obtain a permit from the sheriff, which permit was in addition to any other permits the organization was required to obtain from the State, the county, or a municipality in the county.

On October 21, 2009, Brandon K. Falls, who followed Barber as the Jefferson County District Attorney, issued a letter to all entities operating “bingo halls” in Jefferson County, including the plaintiffs, which stated, in part:

“You have received this notice because it is my firm belief that you are in possession of illegal slot machines and are running a business that is operating in violation of Amendment 386. You have ten (10) days from the date of this notice to remove all slot machines in your possession from Jefferson County and suspend all for-profit bingo activities. Failure to do so will result in immediate legal action.”

The Jefferson County Commission, as the governing body of Jefferson County, has not formulated rules for the regulation of bingo in unincorporated areas of Jefferson County or in municipalities that have not adopted a resolution or ordinance pursuant to Amendment No. 386. However, a number of municipalities within Jefferson County have enacted bingo ordinances. The plaintiffs, a group of nonprofit charities, operate electronic bingo games in municipalities within Jefferson County under bingo ordinances adopted by the municipalities. Some of the plaintiffs operate bingo games 12 hours per day; some operate bingo games 24 hours per day. Under the new bingo rules, the plaintiffs will be able to operate bingo games only two days per week and five hours per day. The plaintiffs have not obtained bingo permits from the Jefferson County Sheriffs Office and claim that they do not have to so long as they are operating under a license or permit issued by a municipality that has enacted a bingo ordinance.

On October 30, 2009, the plaintiffs sued Jefferson County Sheriff Mike Hale, in his official capacity; Brandon K. Falls, in his official capacity as District Attorney for Jefferson County; Jefferson County; and the State of Alabama, seeking declaratory and injunctive relief. The plaintiffs alleged that Amendment No. 386 specifically authorizes bingo in Jefferson County and expressly grants the municipalities in Jefferson County and the county regulatory authority over the operation of bingo games in Jefferson County. The plaintiffs further alleged that the Bingo Act, which authorizes the sheriff to issue bingo permits and other regulations, is in conflict with Amendment No. 386 because Amend-pient No. 386 specifically grants the authority to regulate bingo to the municipalities in Jefferson County and to Jefferson County and not the sheriff. The plaintiffs contended that Amendment No. 386 “trumps” the Bingo Act and that the Bingo Act was unconstitutional. Thus, the plaintiffs alleged that Sheriff Hale was without authority to require that the plaintiffs obtain permits from his office and to issue the new bingo rules. The plaintiffs sought a judgment declaring the Bingo Act unconstitutional.

The plaintiffs also alleged in their complaint that enforcement of the new bingo rules as announced by Sheriff Hale’s letter accompanying the new bingo rules would cause the plaintiffs irreparable and immediate injury by severely restricting the hours during which they could operate and the total prizes they could pay out. Accordingly, the plaintiffs sought injunctive relief preventing the enforcement of the new bingo rules as announced in Sheriff Hale’s letter.

The plaintiffs further alleged in their complaint that Falls, through his letter to all entities operating bingo games in Jefferson County, makes the blanket assertion that the equipment and operations of the individual nonprofit organization are identical or uniform. The plaintiffs allege that Falls seeks to destroy, through prose-cutorial fiat, licensed organizations authorized by Amendment No. 386. Accordingly, the plaintiffs sought injunctive relief from the demands in Fall’s letter of October 2009.

On October 30, 2009, the State filed its motion in opposition to the plaintiffs’ requested injunctive relief as to the Falls letter, arguing that a court cannot enjoin a law-enforcement investigation or prosecution. On November 3, 2009, the State filed a supplemental motion in opposition to the plaintiffs’ request for injunctive relief, arguing that the plaintiffs cannot establish a reasonable chance of success on the merits of the case because the electronic bingo operated by the plaintiffs is illegal in Jefferson County, notwithstanding any municipal ordinance promulgated pursuant to Amendment No. 386 and that the plaintiffs cannot prove that their operations are in compliance with the requirements of Amendment No. 386.

On November 2, 2009, Sheriff Hale, in his official capacity, answered the plaintiffs’ complaint. On November 6, 2009, Falls, in his official capacity as district attorney, moved the trial court to dismiss the plaintiffs’ complaint pursuant to Rules 12(b)(1) and (6), Ala. R. Civ. P., arguing, among other things, that a criminal investigation or prosecution cannot be enjoined; that the plaintiffs’ electronic bingo machines have already been declared illegal; that there is no cause or controversy with respect to those plaintiffs not in possession of “slot” machines; and that, as district attorney, he is immune from suit. On November 13, 2009, the plaintiffs filed a brief in opposition to the motions.

On December 7, 2009, Jefferson County moved the trial court to dismiss the complaint against it for failing to state a claim upon which relief can be granted. Jefferson County alleged that it does not issue bingo permits; that the authority to issue bingo permits and to promulgate rules and regulations for the proper administration of bingo games had been granted to the sheriff pursuant to the Bingo Act; that it does not have any authority over the sheriff or the district attorney; and that the plaintiffs’ complaint does not allege that any illegal action has been taken by Jefferson County and does not request any relief from Jefferson County.

On December 14, 2009, the trial court entered the following order, stating, in part:

“The question of the constitutionality of Act 80-609, the ‘Jefferson County Bingo Act,’ has previously been addressed by Presiding Circuit Judge J. Scott Vowell in State v. $4,932.00 United States Currency, CV-08-2781-JSV (Order entered 3/11/09). In that opinion, Judge Vowell notes that Act 80-609 and Constitutional Amendment 386 were introduced simultaneously in the 1980 session of the Alabama Legislature, and that it provided that the act would ‘become effective upon the adoption of an amendment to the Constitution of Alabama empowering the legislature to authorize bingo within Jefferson County.’ Judge Vowell found that Act 80-609 was not in conflict with Amendment 386 and was, therefore, valid. This Court agrees.
“The Jefferson County Bingo Act, Act 80-609, sets forth a comprehensive permitting scheme for bingo operations in Jefferson County. The Sheriff is authorized to issue permits to qualified operators and ‘to promulgate rules and regulations which he deems necessary for the proper administration and enforcement of the provisions’ of the act. The Plaintiffs not only challenge the constitutionality of the Jefferson County Bingo Act, but also the Sheriffs action in reliance upon this authority.
“The next issue to be resolved is whether the Jefferson County Sheriff had the authority to issue the challenged regulations for bingo operators. Act 80-609 permits the Sheriff to issue permits for bingo operators and sets forth an application process (Section 4.) Because the Sheriffs regulations for making application for bingo permits merely track the language of Act 80-609, the Court finds those regulations valid. Therefore, the claims for injunctive relief against Sheriff Mike Hale are DISMISSED.
“Finally, the Plaintiffs challenge the notice sent by District Attorney Brandon Falls to various[] bingo operations in Jefferson County. That notice provides, in essence, that failure to cease operating in violation of the District Attorney’s interpretation of the laws relating to bingo operations will result in legal action by the District Attorney. This Court does not have the authority to enjoin or interfere with law enforcement. The issuance of the notice, while not required prior to the District Attorney’s taking legal action to enforce the law, is certainly in aid of such action. The proper forum to test the District Attorney’s interpretation of the laws relating to bingo operations is in cases brought by the District Attorney enforcing such laws. The claims against the District Attorney for injunctive relief are therefore, DISMISSED.”

(Capitalization in original.)

The plaintiffs contend that Amendment No. 886 authorizes the operation of bingo games in Jefferson County and grants to the county’s governing body or to the governing bodies of the respective municipalities within Jefferson County, the sole authority to regulate the operation of bingo games within Jefferson County. The plaintiffs argue that the Bingo Act is unconstitutional as an unlawful attempt by the legislature to regulate bingo within Jefferson County and is in conflict with Amendment No. 386. Sheriff Hale argues that it was the legislature’s intent that Amendment No. 386 and the Bingo Act work in tandem with each other and that because the Bingo Act was the enabling legislation for Amendment No. 386, it necessarily must be more detailed and that the added level of detail does not amount to a conflict with Amendment No. 386.

We examine the constitutionality of Act No. 80-609 with the presumption that it is constitutional. See 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So.3d 319, 328-29 (Ala.2010):

“ ‘ “Our review of constitutional challenges to legislative enactments is de novo.” Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Autk, 749 So.2d 425, 428 (Ala.1999) (“In reviewing the constitutionality of a legislative act, this Court will sustain the act ‘ “unless it is clear beyond reasonable doubt that it is violative of the fundamental law.” ’ White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala.1989) (quoting Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)).”). We approach the question of the constitutionality of a legislative act “ ‘ “with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.” ’ ” Monroe v. Harco, Inc., 762 So.2d 828, 881 (Ala.2000) (quoting Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 159 (Ala.1991), quoting in turn McAdory, 246 Ala. at 9, 18 So.2d at 815).
“‘Moreover, in order to overcome the presumption of constitutionality, ... the party asserting the unconstitutionality of the Act ... bears the burden “to show that [the Act] is not constitutional.” Board of Trustees of Employees’ Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). See also Thom v. Jefferson County, 375 So.2d 780, 787 (Ala.1979) (“It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....”).’
“State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006).”

As discussed above, § 65 of the Alabama Constitution prohibits the legislature from authorizing bingo and other lottery-like enterprises in the State. However, bingo is allowed in certain counties within the State pursuant to various constitutional amendments. Amendment No. 386 expressly authorizes the operation of bingo games in Jefferson County for prizes or money by nonprofit organizations, “subject to the provisions of any resolution or ordinance by the county governing body or the governing bodies of the respective cities and towns, within their respective jurisdictions.” Amendment No. 386 expressly grants to the governing body of Jefferson County or to the governing bodies of the municipalities within Jefferson County “the authority to promulgate rules and regulations for the licensing and operation of bingo games, within their respective jurisdictions.” Absent from the plain and unambiguous language of Amendment No. 386 is the grant of any authority, either express or implied, to the Jefferson County sheriff to regulate bingo or to promulgate bingo rules in Jefferson County. Additionally, Amendment No. 386 does not grant any power to the legislature to regulate bingo in Jefferson County.

The Bingo Act delegates certain regulatory authority over bingo in Jefferson County to the sheriff. The Bingo Act provides in Section 2 that “no qualified organization shall be permitted to operate a bingo game until the sheriff issues a permit to the organization authorizing it to do so.” Any permit issued by the sheriff “is in addition to and not in lieu of any other permits or licenses which may be required by the county or any political subdivision thereof.” This attempt by the legislature to extend regulatory authority over bingo to the sheriff in Jefferson County is in direct conflict with Amendment No. 386, which clearly vests only the governing body of Jefferson County or the governing body of a municipality located in Jefferson County with the exclusive authority to regulate the operation of bingo games in Jefferson County. “ ‘Undeniably, the legislature cannot enact a statute that conflicts with the Constitution, that is, that prohibits that which is permitted by the Constitution or that permits that which is prohibited by the Constitution.’ ” Opinion of the Justices No. 373, 795 So.2d 630, 632 (Ala.2001) (quoting City of Birmingham v. Graffeo, 551 So.2d 357, 361-62 (Ala.1989)).

Based on the forgoing, we conclude that to the extent the Bingo Act grants regulatory authority to the sheriff of Jefferson County to issue permits and to promulgate rules and regulations regarding the operation of bingo games in Jefferson County, it is in conflict with Amendment No. 386 and is unconstitutional. Consequently, any rules or regulations issued by the sheriff of Jefferson County pursuant to the Bingo Act are necessarily invalid. Accordingly, the judgment of the trial court is reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The trial court declared Act. No. 94-393, Ala. Acts 1994, to be unconstitutional. The constitutionality of that act is not argued on appeal and will not be addressed on appeal.

      . The plaintiffs also asserted a cause of action against Sheriff Hale and District Attorney Falls pursuant to 42 U.S.C. § 1983. Those claims were dismissed by the trial court and no issues regarding them have been raised on appeal.

      . Following remand by this Court on July 21, 2010, for a Rule 54(b), Ala. R. Civ. P., certification of finality, the trial court, on July 28, 2010, amended its judgment to dismiss all claims against the State and Jefferson County. Additionally, we note that the plaintiffs do not appeal that portion of the trial court’s order dismissing the claims for injunctive relief against District Attorney Falls. This Court has held that a court generally has no jurisdiction to enjoin law enforcement in the performance of its investigatory and prosecutorial functions. Tyson v. Jones, 60 So.3d 831 (Ala.2010).

      . Compare Amendment No. 386 to Amendments No. 743 and 744 for Greene County and Macon County, respectively, which give express authority to the sheriff to promulgate rules and regulations with regard to the licensing, permitting, and operation of bingo in those counties.


author: SMITH, Justice. MURDOCK, Justice

text:
    Samuel G. McKERALL v. Dennis KAISER.
    1090546.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Samuel G. McKerall, Gulf Shores, for appellant.
    Gregory B. McAtee, Mobile, for appel-lee.
   SMITH, Justice.

Samuel G. McKerall appeals from a summary judgment entered in favor of Dennis Kaiser in Kaiser’s action seeking recovery on a promissory note guaranteed by McKerall. We reverse and remand.

Facts and Procedural History

On August 28, 2001, Great American Radio Network, Inc., executed a promissory note in favor of Dennis Kaiser for $300,000 (“the note”). Walter J. Bowen, the president of Great American Radio Network, and McKerall personally guaranteed the note. The terms of the note required a monthly interest payment of $3,000 for 11 months and then a balloon payment of the principal and all unpaid interest on or before August 28, 2002. Specifically, the note, in pertinent part, states:

“[Great American Radio Network], for value received, promise[s] to pay to the order of Mid-Ohio Securities Corp., for the benefit of Dennis L. Kaiser, the sum of $300,000.00, together with interest thereon from date at the rate of twelve percent (12%) per annum, payable in eleven equal monthly installments of $3,000.00 each (i.e., Interest only) commencing one month from the date and continuing on the same day of each succeeding month thereafter until eleven such payments have been made, with the entire balance, all principal and all then accrued and unpaid interest being due and payable, in full, IN ONE FINAL BALLOON INSTALLMENT due on or before twelve months from date.”

(Capitalization in original.)

Relevant to this appeal, the note also states: “Demand, protest and notice of protest, and all requirements necessary to hold them liable, are hereby waived by each and every maker and endorser of this note. This note is made, given, executed and delivered under the seal of the undersigned.” Bowen, in his capacity as president of Great American Radio Network, signed the note. Under that signature, the note states that “[t]his note personally endorsed and guaranteed by” and then includes the signatures of McKerall and Bowen in their personal capacities.

Great American Radio Network timely made the first three interest payments on the note, and then Great American Radio Network or Bowen, personally, made several interspersed payments on the note over several years. It is undisputed that the last payment on the note was made on May 1, 2007, and that the balance on the principal of the note is $218,970.82.

On February 6, 2009, Kaiser sued Great American Radio Network, Bowen, and McKerall in the Baldwin Circuit Court seeking recovery on the note. Kaiser’s complaint contained two counts. In the first count, Kaiser “claim[ed] of the Defendants $213,970.82, due from [them] by account on May-1, 2007, which sum of money and interest of $263,789.79 is still unpaid.” In the second count, Kaiser claimed that “the following amounts are due and owing under [the note,] principal $213,970.82, interest of $263,739.79, attorneys fee of $71,316.48, for a total of $549,027.09, plus costs of court.”

Only McKerall answered Kaiser’s complaint. Accordingly, Kaiser moved for entry of a default judgment against Great American Radio Network and Bowen. The trial court granted the motion, entering a default judgment against Great American Radio Network for $555,177.54 and a default judgment against Bowen for $555,177.54. McKerall was the only remaining defendant.

Kaiser and McKerall filed cross-motions for a summary judgment. Kaiser, in his motion, argued that no genuine issues of material fact existed and, therefore, that he was entitled to a summary judgment against McKerall. McKerall, in his motion, argued that Kaiser’s claims against him were barred by the applicable statute of limitations.

The trial court denied McKerall’s motion and entered a summary judgment in favor of Kaiser in the amount of $346,283.80, plus costs. McKerall appeals that judgment.

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, wé must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

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

Discussion

On appeal, McKerall reasserts his argument that Kaiser’s claims against him were barred by the applicable statute of limitations and, therefore, that the trial court erred in entering a summary judgment against him and in favor of Kaiser. McKerall argues that the applicable statute of limitations is § 7-3-118, Ala.Code 1975. Section 7-3-118(a), entitled “Note payable at a definite time,” provides that, with exceptions not relevant here, “an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.” (Emphasis added.) McKerall argues that under § 7-3-118 Kaiser’s action must have been commenced by August 28, 2008, six years after August 28, 2002, the due date stated in the note. Because Kaiser’s action was not filed until February 6, 2009, McKerall argues that Kaiser’s claims against him were barred by § 7-3-118.

In response, Kaiser argues that the note is a contract under seal; therefore, he contends that the applicable statute of limitations is § 6-2-33, Ala.Code 1975. Section 6-2-33(1) provides that “[a]ctions founded upon any contract or writing under seal” must be commenced within 10 years after the cause of action has accrued. Assuming that the cause of action accrued on August 28, 2002, Kaiser argues that his claims against McKerall were filed within the applicable statute of limitations. As an alternative argument, Kaiser contends that the applicable statute of limitations is § 6-2-34(4), Ala.Code 1975, which provides a six-year statute of limitations for “[ajctions founded on promises in writing not under seal,” and that, under § 6-2-16, Ala.Code 1975, the partial payments of the note extended the accrual of the cause of action until the date of the last payment, May 1, 2007. As another alternate argument, Kaiser contends that count one of his complaint asserts a claim against McKerall for recovery of money due on an open account. Section 6-2-37, Ala.Code 1975, provides that “[a]ctions to recover money due by open or unliquidated account” must be commenced within three years of “the date of the last item of the account or from the time when, by contract or usage, the account is due.” Kaiser contends that, under § 6-2-37, his claim against McKerall did not accrue until May 1, 2007, and, therefore, that the applicable statute of limitations for count one did not expire until May 1, 2010.

First, we must consider whether the note constitutes a negotiable instrument, because § 6-2-2(e), Ala.Code 1975, provides that provisions within Chapter 2 of Title 6 “shall not apply to negotiable instruments which are governed by Sections 7-3-118 and 7-4-11.” Section 7-3-104(a), Ala.Code 1975, defines a “negotiable instrument” as follows:

“[A]n unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
“(1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
“(2) Is payable on demand or at a definite time; and
“(3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.”

We conclude that the note constitutes a negotiable instrument because it meets all the characteristics of negotiable instruments in § 7-3-104(a). The note is “an unconditional promise ... to pay a fixed amount of money” to the order of Mid-Ohio Securities Corporation for the benefit of Kaiser “at a definite time” without any “undertaking or instruction” by Great American Radio Network to do anything in addition to the obligation to make payments. § 7-3-104(a), Ala.Code 1975. The fact that the note was made under seal has no effect on whether it is a negotiable instrument. See Foster v. Hacienda Nirvana, Inc., 32 So.3d 1256, 1259 (Ala.2009) (“[I]f the promissory note is a negotiable instrument ... § 6-2-2(e) clearly mandates that the six-year statute of limitations of § 7-3-118 must apply to [a] claim on the promissory note, regardless of whether the note is also a contract under seal.”). Because this present action seeks to enforce obligations under a negotiable instrument that was payable at a definite time, the applicable statute of limitations is found in § 7-3-118(a), Ala.Code 1975, and not §§ 6-2-33, 6-2-34, or 6-2-37, Ala.Code 1975. See § 6-2-2(e), Ala.Code 1975.

We must next consider when Kaiser’s cause of action against McKerall accrued. Kaiser makes no argument that the note is not a negotiable instrument; instead, Kaiser argues that, “[sjhould the Court accept th[e] argument that this is a negotiable instrument governed by § 7-3-118,” his cause of action against McKerall, as a guarantor of the note, did not accrue until Kaiser made demand on the note and that he did not make demand on the note to McKerall until filing this action. Kaiser’s brief, at p. 11. In support of this argument, Kaiser notes that the Official Comment to § 7-3-118 states that “Section 3-118 does not define when a cause of action accrues.” Accordingly, Kaiser argues that the six-year statute of limitations of § 7-3-118(a) began running upon the filing of this action.

As an alternative argument, Kaiser argues that, under § 7 — 3—118(b), entitled “Note payable on demand,” his cause of action against McKerall accrued when the last payment was made on the note. Section 7-3-118(b) provides, in pertinent part, that, with exceptions not relevant here, “[i]f no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of 10 years.” Applying § 7-3-118(b) to the facts of this case, Kaiser contends that the cause of action accrued when the last payment was made, May 1, 2007, and that the six-year statute of limitations therefore does not expire until May 1, 2013.

Contrary to Kaiser’s arguments, this cause of action accrued on the due date of the note, August 28, 2002, because, by its terms, the note was due at a definite time, and McKerall waived demand as a requisite for liability on the note. The note states that “[djemand ... and all requirements necessary to hold them liable are hereby waived by each and every maker and endorser of this note,” and McKerall “personally endorsed and guaranteed” the note. (Emphasis added.) Therefore, under § 7-3-118(a), Kaiser’s cause of action against McKerall to enforce the note accrued on the due date of the note, August 28, 2002, and Kaiser had six years from that date to commence the action. See § 7-3-118 (“an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date”); Foster, 32 So.3d at 1264 (holding that, under § 7-3-118, the claim of the plaintiffs, who sought to enforce a note and “filed their claim on the promissory note ... six years and nine months after the final payment was due on the note” was barred by the statute of limitations); Spragins v. McCaleb, 237 Ala. 658, 661, 188 So. 251, 253 (1939) (holding that when an endorser of a note waives demand “ ‘the [ejndorser becomes unconditionally liable for the debt evidenced by the instrument.’” (quoting Little v. Peoples’ Bank of Mobile, 209 Ala. 620, 624, 96 So. 763, 767 (1923)).

Because Kaiser commenced his action against McKerall more than six years after the due date of the note, Kaiser’s claims against McKerall are barred by the applicable statute of limitations. See § 7-3-118, Ala.Code 1975. Accordingly, the trial court erred in entering a summary judgment for Kaiser.

Conclusion

Based on the foregoing, we reverse the judgment of the trial court and remand this cause to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, WOODALL, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result reached by the main opinion. Also, I take this opportunity to note that no argument is presented in this ease based on § 7-3-605(b), Ala.Code 1975, and the Official Comment thereto.

      . Section 6-2-16, Ala.Code 1975, provides:
      “No act, promise or acknowledgment is sufficient to remove the bar to an action created by the provisions of this chapter, nor is such evidence of a new and continuing contract, except a partial payment, made upon the contract by the party sought to be charged before the bar is complete or an unconditional promise in writing signed by the party to be charged thereby.”

      . Kaiser argues that, under § 6-2-16, the payment on May 1, 2007, barred the expiration of the six-year statute of limitations found in § 7-3-118(a). In support of this argument, Kaiser notes that the Alabama Comment to § 7-3-118 states, in pertinent part:
      "Ala.Code Section 6-2-16 continues to apply to determine the sufficiency of a partial payment or a written promise to remove the bar to an action. Section 6-2-16 is applicable to negotiable instruments as well as non-negotiable instruments. Stewart v. Jones, 614 So.2d 1023 (Ala.1993). Section 6-2-16 is not displaced by Section 3-118, except with respect to subsection (b) of Section 3-118.”
      The Alabama Comment was added as part of a wholesale revision of Chapter 3 of Title 7 in 1995 when the legislature adopted Article 3 of the Uniform Commercial Code. Because Stewart v. Jones, 614 So.2d 1023 (Ala.1993), predates the effective date of § 6-2-2(e) on January 1, 1996, we conclude that the statement that "[§ ] 6-2-16 is applicable to negotiable instruments as well as non-negotiable instruments” is no longer valid. Accordingly, we pretermit further discussion of the applicability of § 6-2-16 to this action.