author: PER CURIAM.

text:
    TURQUOISE PROPERTIES GULF, INC. v. Hugh OVERMYER et al.
    1100160.
    Supreme Court of Alabama.
    Sept. 30, 2011.
    Daniel G. Blackburn, Mark H. Taupeka, and Rebecca A. Gaines of Blackburn & Conner, P.C., Bay Minette, for appellant.

      Adam M. Milam and Shelley H. Milam of Milam & Milam, LLC, Fairhope, for appellees.
   PER CURIAM.

Turquoise Properties Gulf, Inc. (“Turquoise”), appeals from a judgment of the Baldwin Circuit Court denying its motion to alter, amend, or vacate an arbitration award in an action filed by Clark A. Cooper and David L. Faulkner, Jr., and by Hugh Overmyer and Adrienne Overmyer (hereinafter referred to collectively as “the claimants”). We reverse and remand.

I. Facts and Procedural History

On April 24, 2005, the Overmyers signed a purchase and escrow agreement by which they agreed to purchase a condominium to be built as part of “phase I” of a condominium complex Turquoise was developing in Orange Beach. The purchase price for the condominium was $1,200,900. In conjunction with the purchase, the Ov-ermyers posted a letter of credit in the amount of $240,180, which constituted 20% of the purchase price.

On October 20, 2005, Cooper and Faulkner signed a purchase and escrow agreement agreeing to purchase another condominium to be built as part of “phase I” of the same condominium complex. The purchase price for that condominium was $1,360,900. Cooper and Faulkner posted a letter of credit in the amount of $272,180, which, like the Overmyers’ letter of credit, constituted 20% of the purchase price to which they had agreed.

When construction neared substantial completion, the claimants declined to “close” on the purchases on their respective units, allegedly because Turquoise had failed to build an outdoor pool and sundeck area or to provide individual storage units and private cabanas, which, the claimants alleged, it had agreed to build and to provide.

The portion of the purchase and escrow agreements pertinent to this appeal provides as follows:

“Default: ... If Purchaser shall fail to close as required by this Agreement ... Developer shall ... retain all sums paid to Developer or Escrow Agent (including, but not limited to any deposits paid by Purchaser, and any interest earned hereon); hereunder as agreed upon and liquidated damages and in full settlement of any claim for damages. These liquidated damages are limited to 15% of the Purchase Price, exclusive of any interest [owed] by the Purchaser, that has been paid by Purchaser, and Developer agrees to refund to Purchaser any amount which remains from the payments/sums paid to Developer or Escrow Agent made after subtracting 15% of the Purchase Price, excluding interest.”

As noted above, the claimants had paid Turquoise 20% of the total purchase price of each of the two units. When the claimants refused to close on their units, however, Turquoise did not refund the 5% in excess of the 15% of the purchase price the claimants had paid (“the excess 5%”).

The purchase and escrow agreements also contained an arbitration provision, which provided that any dispute between the parties would be “governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.)” and that the arbitration would be “administered by the American Arbitration Association in accordance with the Construction Industry Dispute Resolution Procedures of the American Arbitration Association .... ”

On June 18, 2008, Cooper and Faulkner filed with the American Arbitration Association a demand for arbitration of their claims against Turquoise. On June 23, 2008, the Overmyers filed a similar demand. The initial arbitration demands contained claims of breach of contract, fraud, and violations of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. The claimants amended their arbitration demands in January 2009 to include a conversion claim based on Turquoise’s refusal to refund the excess 5% in accordance with the default provision of the purchase and escrow agreements. The claimants alleged that Turquoise informed them that it would not refund the excess 5% unless they dismissed their arbitration demands, which the claimants declined to do. In their conversion claims, the claimants contended they had suffered “damage[] and mental anguish and stress” as a result of the conversion of their deposit money. The claimants requested relief in the form of compensatory damages, punitive damages, costs, interest, and reasonable attorney fees.

It is undisputed that in June 2009 Turquoise returned the excess 5% to the claimants because it was ordered by the arbitrator to do so. Cooper and Faulkner were refunded approximately $68,000; the Overmyers were refunded approximately $60,000. In an evidentiary hearing before the arbitrator held on January 25-27, 2010, the claimants acknowledged that Turquoise had paid them the excess 5%

On June 8, 2010, the arbitrator entered a lengthy arbitration award containing findings of fact and conclusions of law. Pertinent to this appeal, the arbitrator recounted in his rendition of the facts that “[t]he [excess] 5% was returned to Faulkner, Cooper, and the Overmyers in June, 2009.” Concerning the claimants’ conversion claims, the arbitrator concluded as follows:

“The Claimants’ made demand for return of the 5% excess on September 11, 2008. At this time the 5% was [not] in dispute. [Turquoise] had a contractual obligation to return these funds within a reasonable time. The fact that they were in escrow is no defense. [Turquoise’s] obligation was to act jointly with Claimants to instruct return of the excess funds. It is obvious that Bank would have complied then just as it complied with another arbitrator’s order in June 2009. The Arbitrator holds that a reasonable amount of time for [Turquoise] to act was thirty days; therefore, the Arbitrator holds that as of October 12, 2008, [Turquoise] converted the excess funds.
“The general measure of damages for conversion is the value of the property at the time of the conversion. Jenelle Mims Marsh and Charles W. Gamble, Alabama Law of Damages § 36.51 (5th ed.2004). In addition, Claimants are entitled to interest at 6% from the date of the taking. 2 Alabama Pattern Jury Instructions (Civil) 39.01 (2nd ed.) Therefore, Claimants are due interest from October 12, 2008 until the money was ordered to be returned on June 15, 2009.
“The Arbitrator finds that an award of punitive damages is not warranted.”

The arbitrator awarded damages to the claimants as follows:

“In favor of Clark Cooper and David Faulkner and against Turquoise Properties Gulf, Inc., on their claim for conversion, and within thirty (30) days from the date of this award Turquoise Properties Gulf, Inc. will pay them jointly the sum of SEVENTY ONE THOUSAND ONE HUNDRED THIRTY TWO DOLLARS AND NINETEEN CENTS ($71,132.19).
“In favor of Hugh Overmyer and Adrienne Overmyer and against Turquoise Gulf Properties Gulf, Inc. on their claim for conversion, and within thirty (30) days from the date of this award Turquoise Properties Gulf, Inc. will pay them the amount of SIXTY TWO THOUSAND SEVEN HUNDRED SIXTY NINE DOLLARS AND TWENTY THREE CENTS ($62,769,23).
“This Award is in full settlement of all claims submitted to this arbitration. All claims not expressly granted are denied.”

On June 11, 2010, Turquoise filed a motion to modify the arbitration award on the ground that the arbitrator had made a computational error in his calculation of damages by failing to credit Turquoise for refunding to the claimants the excess 5%. Turquoise argued that the damages awarded amounted to a double recovery for the claimants and that the damages on the conversion claims should have consisted solely of the interest that accrued on the excess 5% during the period the funds were converted. On June 23, 2010, the arbitrator denied Turquoise’s motion to modify, explaining:

“Rule 47 Construction Industry Arbitration Rules and Mediation Procedures (amended and effective September 1,2007), controls the disposition of the motion. The rule states, as follows:
“ ‘Within twenty calendar days after the transmittal of an award, the arbitrator on his or her initiative, or any party, upon notice to the other parties, may request that the arbitrator correct any clerical, typographical, technical or computational errors in the award. The arbitrator is not empowered to re-determine the merits of any claim already decided.
“ ‘If the modification request is made by a party, the other parties shall be given ten calendar days to respond to the request. The arbitrator shall dispose of the request within twenty calendar days after transmittal by the AAA to the arbitrator of the request and any response thereto.
“ ‘If applicable law provides a different procedural time frame, that procedure shall be followed.’
“Turquoise’s motion asks the arbitrator to ‘re-determine the merits of [the conversion] claim already decided.’ Neither Rule 47 nor the parties’ arbitration agreements empower! ] the Arbitrator to rehear and re-determine whether a claim was correctly decided as a matter of law. Therefore, the motion to modify is denied.”

On July 22, 2010, Turquoise appealed the arbitration award to the Baldwin Circuit Court pursuant to Rule 71B, Ala. R. Civ. P. The next day, the claimants filed in the circuit court a motion to enter the arbitrator’s award as a final judgment; the circuit court granted the claimants’ motion on August 3, 2010. On August 16, 2010, Turquoise filed a motion to alter, amend, or vacate the final judgment of the arbitrator. On September 21, 2010, the circuit court denied Turquoise’s motion. Turquoise appeals from the judgment of the circuit court.

II. Standard of Review

“The standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir.2002).”

Hereford v. D.R. Horton, Inc., 13 So.3d 375, 378 (Ala.2009).

III. Analysis

As it did before the arbitrator and before the circuit court, Turquoise contends on appeal that the arbitrator erred in computing damages on the claimants’ conversion claims because, it says, the arbitrator failed to account for Turquoise’s refund to the claimants of the excess 5%. As they did below, the claimants respond that Turquoise is seeking correction of a legal or factual mistake concerning the amount of damages awarded, which, they say, this Court lacks the power to do under the Federal Arbitration Act (“the FAA”).

The parties agree that 9 U.S.C. § 11 of the FAA prescribes the circumstances under which a court may modify an arbitration award. That section provides:

“In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration—
“(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
“(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
“(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
“The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

Turquoise contends that the arbitrator’s failure to credit its refund of the excess 5% in computing the damages awarded to the claimants on their conversion claims constituted an “evident material miscalculation of figures.” Turquoise observes that the arbitrator noted in his award that Turquoise had refunded to the claimants the excess 5% in June 2009. It notes that the arbitrator correctly stated that the rule for calculating damages on a claim of conversion is the value of the property at the time of the conversion plus interest from the time of the taking. See, e.g., Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 235, 301 So.2d 546, 549 (1974) (stating that “[i]n conversion the recovery traditionally sought is the fair value of the chattel at the time of conversion, plus interest”). Turquoise also concedes that the fact that it refunded the undisputed portion of the claimants’ deposits, i.e., the excess 5%, did not bar the claimants’ conversion claims. See, e.g., Brown v. Campbell, 536 So.2d 920, 922 (Ala.1988) (observing that “recovery of the property by the plaintiff does not bar a suit for conversion but merely reduced the plaintiffs damages by the value of the property at the time of its return”). Consequently, Turquoise does not dispute the arbitrator’s finding that it converted a portion of the claimants’ deposits.

Turquoise notes that, despite the arbitrator’s acknowledgment that Turquoise refunded the excess 5% and despite his recounting of the law concerning damages for conversion, the arbitrator still awarded Faulkner and Cooper $71,132.19 and the Overmyers $62,769.23 in damages on their conversion claims. Adding 6% interest for the period of the conversions to the excess 5%, the arbitrator’s damages awards for conversion equal the exact amount the claimants’ damages would have been without crediting Turquoise for refunding the excess 5%. Therefore, Turquoise contends, the arbitrator committed an “evident material miscalculation” in the damages award.

The claimants contend that the error alleged by Turquoise is not a simple miscalculation but amounts to a failure to apply the law correctly to the facts. They observe that 9 U.S.C. § 11(a) does not permit a court to correct such a mistake. In support of their argument, the claimants emphasize the restrictive nature of the review that is permitted under § 11(a):

“[RJelief under Section 11(a) is limited to ‘simple formal, descriptive, or mathematical mistake,’ Stroh Container Co. v. Delphi Industries, Inc., 783 F.2d 743, 749 (8th Cir.1986), not disagreement over factual or legal decisions deliberately made. Most cases discussing Section 11(a) address the alleged miscalculation of figures. These cases make clear that the provision reaches only computational errors, not legal or factual mistakes concerning the amount of damages that should be awarded. E.g., Grain v. Trinity Health, Mercy Health Services Inc., 551 F.3d 374, 378-79 (6th Cir.2008) (error in determining start and stop dates for interest is not correctable under Section 11(a)); U.S. Energy Corp. v. Nukem, Inc., [ (No. 96-1532, Oct. 22, 1998) ] (10th Cir.1998) [ (unpublished opinion) ] (flawed logic in the award of lost profits is not correctable under Section 11(a)); UHC Management Co. v. Computer Sciences Corp., 148 F.3d 992, 998 (8th Cir.1998) (damages award inconsistent with governing state law is not correctable under Section 11(a)); see also B.L. Harbert International, LLC v. Hercules Steel Co., 441 F.3d 905, 909 (11th Cir.2006) (Section 11(a) can be used to correct scrivener’s errors in stating the damages awarded). Simply put, Section 11(a) does not apply to ‘an interpretation of the law and facts as [the arbitrator] saw them.’ Capital Wholesale Electric, Inc. v. McCarthy Construction, [ (No. 93-16578, March 9, 1995) ] (9th Cir.1995) [ (unpublished opinion) ]; accord Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 194 (4th Cir.1998) (‘[CJourts have held generally that even a mistake of fact or misinterpretation of law by an arbitrator provides insufficient grounds for the modification of an award’ under Section 11(a)).”

Waddell v. Holiday Isle, LLC, (No. 09-0040-WS-M, Aug. 4, 2009) (S.D.Ala.2009) (not selected for publication in F.Supp.2d).

Turquoise acknowledges that the review provided by § 11(a) is narrow, but it observes that it has been held that

“[wjhen an arbitration award orders a party to pay damages that have already been paid or which are included elsewhere in the award, a court may modify the award. Double recovery constitutes a materially unjust miscalculation which may be modified under section 11 of the Federal Arbitration Act.”

Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1254 (7th Cir.1994), cert. denied, 512 U.S. 1205, 114 S.Ct. 2675, 129 L.Ed.2d 810 (1994) (footnote omitted). Turquoise argues that the arbitrator’s award clearly constitutes a double recovery by the claimants because the excess 5% was already returned to them. “In Eljer, the [United States Court of Appeals for the] Seventh Circuit determined that the district court properly modified a damage[s] award because the basis for the arbitrator’s award was ‘no mystery’ and the court did not have to speculate as to what the arbitrator’s award was attempting to redress. Eljer, 14 F.Sd at 1254.” Jimmy John’s Franchise, LLC v. Kelsey, 549 F.Supp.2d 1034, 1040 (C.D.Ill.2008). Turquoise contends that, as was true in Eljer, the mistake by the arbitrator is evident on the face of the award because the arbitrator stated the correct measure of damages on a conversion claim and acknowledged that Turquoise had refunded the excess 5% to the claimants, yet he awarded the claimants damages “on their claim[s] for conversion” as if no refund had occurred. Turquoise further notes that the arbitrator expressly declined to award punitive damages; thus, the award could not represent anything other than compensation for the conversion itself.

The claimants first counter that the United States Court of Appeals for the Eleventh Circuit “rejected the reasoning of Eljer ” in AIG Baker Sterling Heights, LLC v. American Multi-Cinema, Inc., 508 F.3d 995 (11th Cir.2007). The Eleventh Circuit in AIG Baker, however, did not disagree with the Eljer court’s conclusion that a double recovery can constitute an “evident material miscalculation of figures” under 9 U.S.C. § 11(a). In fact, the AIG Baker court’s comments concerning Eljer were not directed to a “miscalculation of figures” because the appellant had conceded that the award did not contain any such miscalculation. See AIG Baker, 508 F.3d at 999. Instead, AIG Baker held simply that to make a “mistake” within the meaning of § 11(a) is “to understand wrongly” and that this is a different matter from an error made because an arbitrator has not been made aware of pertinent information or facts. See id. (stating that what the appellant “complains about is not a ‘mistake,’ but rather ‘ignorance’ — a ‘lack of knowledge’” (quoting the definition of the term “mistake” in Webster’s II New Riverside University Dictionary 759 (1984))).

The claimants also note the AIG Baker court’s embrace of the notion that, in order to be “evident” within the meaning of 9 U.S.C. § 11(a), a mistake must appear on the face of an arbitration award. See note

4, supra. No conflict with AIG Baker exists in this regard, however, because the arbitrator was put on notice of the mistake and, as has been noted, the mistake is apparent on the face of the award.

Finally, we note that Eljer has been cited by several courts for the proposition that a double recovery constitutes an “evident material miscalculation of figures.”

The claimants also contend that Turquoise is speculating that the award constitutes a double recovery because the arbitrator could “have awarded damages for mental anguish and stress in an amount equal to his award or some part of it.” It is the claimants who, in fact, are speculating, given that the arbitrator discussed “[t]he general measure of damages for conversion” as “the value of the property at the time of the conversion,” plus interest, and then awarded the claimants damages “on their elaim[s] for conversion” in the exact amounts of the excess 5% plus interest. The arbitrator gave absolutely no indication that the damages award included compensation for mental anguish or stress, and his award stated that “[a]ll claims not expressly granted are denied.” The claimants offer no other explanation for why the award appears on its face to be a double recovery. They also ignore the fact that the “proposed order” they submitted to the arbitrator after the evi-dentiary hearing stated that “[Respondent Turquoise Properties Gulf, Inc., shall be credited with the amount paid on or about June 24, 2009 to Claimants. Claimants shall not obtain a double recovery.” Thus, the claimants acknowledged to the arbitrator that Turquoise should receive a credit on the conversion claims for the moneys already refunded to the claimants, but such a credit is not evident in the final arbitration award.

Finally, the claimants argue that the issue whether the arbitration award represents a double recovery was submitted to and decided by the arbitrator and that, consequently, Turquoise’s appeal of that issue is barred by the doctrine of collateral estoppel. The claimants correctly note that this Court stated in Lee L. Saad Construction Co. v. DPF Architects, P.C., 851 So.2d 507, 516 (Ala.2002), that, “[i]n Alabama, the ‘ “doctrines of [res judi-cata and collateral estoppel] apply as well in arbitration as they do to adjudications in judicial proceedings.” ’ ” The first element of collateral estoppel, however, is ““‘that an issue in a prior action was identical to the issue litigated in the present action.” ’ ” Id. at 520 (quoting Biles v. Sullivan, 798 So.2d 708, 712 (Ala.2000), quoting in turn Smith v. Union Bank & Trust Co., 653 So.2d 983, 934 (Ala.1995) (emphasis added)). Turquoise filed a permissible appeal to the circuit court of the arbitration award pursuant to Rule 71B, Ala. R. Civ. P., and it then filed an appeal of the circuit court’s judgment to this Court. Thus, the arbitration proceeding at issue is not a “prior action”; the present appeal is a part of the same action, and collateral estoppel cannot apply to the arguments made by Turquoise in this appeal.

Based on the foregoing, we reverse the judgment of the circuit court denying Turquoise’s motion to modify the arbitration award, and we remand the action for the circuit court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, BOLIN, MURDOCK, and MAIN, JJ., concur.

      . Though the parties and the record do not indicate a date, at a certain point before the evidentiary hearing the claimants’ claims were consolidated into one arbitration action along with the claims of four other similarly situated claimants who are not parties to this appeal.

      . See also 9 U.S.C. § 10, providing grounds upon which a trial court may enter an order "vacating” an arbitration award.

      . Alabama law similarly does not countenance double recoveries.
      "Alabama law generally bars double recoveries, and, although ' "a party is entitled to full compensation for his injuries,” ’ Wilboum v. Ray, 603 So.2d 969, 972 (Ala.1992) (quoting McClendon v. City of Boat, 395 So.2d 21, 26 (Ala.1981)), he ' "can gain but one satisfaction.” ' Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 521 (Ala.2002) (quoting Mobile Ins., Inc. v. Smith, 441 So.2d 894, 896 (Ala.1983)).”

        Ex parte Barnett, 978 So.2d 729, 732 (Ala.2007).

      . The only portion of AIG Baker that mentions Eljer states as follows:
      "The Fourth Circuit has interpreted section 11(a) to embrace mistakes that were made by parties that were never brought to the attention of the arbitration panel, see Transnitro, Inc. v. M/V Wave, 943 F.2d 471, 474 (4th Cir.1991); see also Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1254 (7th Cir.1994) (citing with approval Transnitro ), but a more recent decision of that circuit reads section 11(a) in the same manner that we do. In Apex Plumbing Supply, Inc. v. U.S. Supply Co., the Fourth Circuit held that a mistake 'was not "evident” because it did not appear on the face of the arbitration award.' 142 F.3d 188, 194 (4th Cir.1998). We are convinced that the earlier decision of the Fourth Circuit in Trans ni-tro is erroneous.”
      508 F.3d at 1000. It is readily apparent from the above-quoted passage that the Eleventh Circuit did not address — let alone reject — the Fourth Circuit’s conclusion that a double recovery may constitute an "evident material mistake.” This is not surprising, given that there was no allegation in AIG Baker of a double recovery.

      . See, e.g., Consolidated Biscuit Co. v. Karpen, (No. 3:00CV7703, Aug. 28, 2001) (N.D.Ohio) (not selected for publication in F.Supp.2d) (stating that, "[i]f a panel awards damages that have already been paid, a court has authority to modify the award”); TD Ameritrade, Inc. v. McLaughlin, Piven, Vogel Sec., Inc., 953 A.2d 726, 737 (Del.Ch.2008) (quoting with approval Eljer's proposition concerning a double recovery); Mandl v. Bailey, 159 Md. App. 64, 98, 858 A.2d 508, 528 (2004); Saw-telle v. Waddell & Reed, Inc., 304 A.D.2d 103, 116, 754 N.Y.S.2d 264, 275 (2003); and Cole v. Hiller, 715 So.2d 451, 456 (La.Ct.App. 1998).

      . See Cole v. Hiller, 715 So.2d 451, 456 (La.Ct.App.1998) (stating that "[t]he court may ... vacate an award founded on a material mistake of undisputed fact unless the party opposing the motion to vacate offers an alternative rational explanation for the award based on the evidence before the arbitrator” (emphasis omitted) (citing National Post Office v. United States Postal Serv., 751 F.2d 834 (6th Cir.1985), Valentine Sugars, Inc. v. Donau Corp., 981 F.2d 210 (5th Cir.1993), cert. denied, 509 U.S. 923, 113 S.Ct. 3039, 125 L.Ed.2d 725 (1993), and Electronics Corp. of America v. International Union of Elec. Workers, 492 F.2d 1255 (1st Cir.1974))).

      . In Lee L. Saad Construction, Lee L. Saad Construction Co. ("Saad”) demanded — and was granted — arbitration in response to an action filed by the Baldwin County Board of Education ("the Board”). An arbitration proceeding before the director of the Alabama Building Commission occurred between Saad and the Board. After the director issued his decision, Saad filed a cross-claim against several defendants that involved the same contract that was at issue in the action filed by the Board. It was in this context that the Saad Construction Court stated that Saad might be collaterally estopped from raising issues already litigated in the arbitration proceeding.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    CAPMARK BANK v. RGR, LLC, et al.
    1100318.
    Supreme Court of Alabama.
    Sept. 30, 2011.

      Timothy M. Lupinacci, W. Patton Hahn, and Marianne H. Combs of Baker, Donel-son, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellant.
    Russel Myles, Robert B. McGinley, Jr., and Karen T. Luce of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for ap-pellees.
   BOLIN, Justice.

Capmark Bank appeals from a preliminary injunction entered in favor of RGR, LLC; MB Park, LLC; TTM MB Park, LLC; Robert G. Randall; and T. Todd Martin III (hereinafter referred to collectively as “RGR”) enjoining Capmark from foreclosing on certain real property serving as the primary collateral for a loan from Capmark to RGR, LLC, MB Park, LLC, and TTM MB Park, LLC (hereinafter referred to collectively as “the limited liability companies”). We reverse and remand.

Facts and Procedural History

A. The Loan

On September 27, 2007, Capmark and the limited liability companies executed a loan agreement pursuant to which Cap-mark agreed to loan the limited liability companies the original principal amount of $12,822,500. The limited liability companies used the loan proceeds to acquire and to rehabilitate two apartment complexes in Mobile County. The loan was evidenced by two promissory notes executed by the limited liability companies: promissory note A in favor of Capmark in the principal amount of $6,332,500, and promissory note B in the principal amount of $5,990,000. The limited liability companies were to repay the amounts set forth in the promissory notes in accordance with the terms of the loan agreement. As security for the loan, the limited liability companies executed a “Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing” in favor of Capmark. Pursuant to the mortgage and assignment, the apartment complexes served as collateral for the limited liability companies’ obligations under the loan agreement. Additionally, the limited liability companies also granted Capmark an assignment of all rents and leases related to the properties and gave Capmark a first-priority security interest in all the limited liability companies’ fixtures, goods, equipment, accounts, and general intangibles.

Simultaneous with the execution of the other loan documents, and as further security for the loan, Robert G. Randall and T. Todd Martin III, the owners of the limited liability companies, executed three separate guaranty agreements in favor of Cap-mark: (1) the full-payment and performance guaranty pursuant to which Randall and Martin irrevocably and unconditionally guaranteed the prompt payment to Cap-mark when due of all obligations and liabilities under the loan agreement and other loan documents; (2) the completion and lien-free performance guaranty pursuant to which Randall irrevocably and unconditionally guaranteed the full and timely completion of all construction work in accordance with the terms of the loan agreement free of any liens and the full and timely payment of all contractors and material suppliers; and (3) the exception to nonrecourse liability guaranty pursuant to which Randall and Martin irrevocably and unconditionally guaranteed the prompt payment to Capmark when due of all obligations and liabilities for which Randall and Martin become personably liable under Article 12 of the loan agreement and the other loan documents.

Martin testified in his affidavit that shortly before closing on the loan, Cap-mark required the limited liability companies to increase their equity contribution by $540,000 and unilaterally reduced the amount of the loan by $300,000. Martin stated that Capmark’s requirement that the limited liability companies increase their equity contribution and the unilateral reduction of the loan amount came just as their purchase option for the apartments was about to expire, leaving the limited liability companies with little time to seek other arrangements. Martin testified that the limited liability companies specifically informed Capmark that reducing the loan amount while also requiring an increase in its equity contribution would likely result in cash-flow shortages early in the project. Martin stated that Capmark assured the limited liability companies that funds would be available as a contingency if needed to address any cash-flow shortages. He stated that Capmark acknowledged in writing that it had agreed to provide $300,000 in cash-flow funding and that the limited liability companies closed the loan based on that representation. Martin and Randall contributed $1,540,000 of their own money at the closing of the loan and have since invested an additional $750,000 in the project.

B. The Loan Agreement

Pursuant to Section 2.01(a) of the loan agreement, Capmark agreed to loan the limited liability companies the “Maximum Loan Amount.” Section 19.01 of the loan agreement defines the “Maximum Loan Amount” as the “maximum principal amount of $12,322,500.” Pursuant to section 2.03(c) of the loan agreement, the loan matured on October 1, 2010. Section 2.06 provides that Capmark had no obligation to refinance the loan.

Section 2.04(a) of the loan agreement governs the payment terms of the loan; it provides, in part, that “all amounts due under this Loan Agreement and the other Loan Documents shall be paid without set-off, counterclaim, or any other deduction whatsoever.” Article 11 of the loan agreement governs the event of default and Capmark’s remedies upon an occurrence of a default. Section 11.01 provides, in part:

“The occurrence of any one or more of the following events, shall at Lender’s option, constitute an ‘Event of Default’ hereunder:
“(a) If any payment of principal and interest (or interest if the Loan is interest-only) is not paid in full on or before the Payment Due Date on which such payment is due;
“(c) If unpaid principal, accrued but unpaid interest and all other amounts outstanding under the Loan Documents are not paid in full on or before the Maturity Date;
“(i) If any Guarantor repudiates or revokes the Guaranty or Environmental Indemnity;
“(t) If the Mandatory Performance Test Paydown is not paid in full when required in accordance with Section 2.05(f) of this Loan Agreement.”

Section 11.02 of the loan agreement provides that, in the event of a default, Cap-mark may accelerate the loan by declaring the entire unpaid principal balance of the loan to be immediately due and payable, may institute foreclosure proceedings against the properties, and may apply for the appointment of a receiver, trustee, liquidator, or conservator of the properties.

Section 18.02 of the loan agreement contains a merger and integration clause, which provides as follows:

“Entire Agreement; Modifications; Time of Essence. This Loan Agreement, together with the other Loan Documents, eontain[s] the entire agreement between Borrower and Lender relating to the Loan and supersede^] and replaced] all prior discussions, representations, communications and agreements (oral or written). If the terms of any of the Loan Documents are in conflict, this Loan Agreement shall control over all of the other Loan Documents unless otherwise expressly provided in such other Loan Document. No Loan Document shall be modified, supplemented or terminated, nor any provision thereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing. Time is of the essence with respect to all of the Borrower’s obligations under the Loan Documents.”

Martin testified that the loan agreement contemplated that Capmark would convert the construction financing to permanent financing once the project was complete. Martin testified that a Capmark representative informed the limited liability companies that “the benefit to doing this deal with us is that ... while the rate is a bit higher ... you’re only going to have one underwriting expense. One and done.... ” Martin explains that the point of the statement is that the limited liability companies would incur just one underwriting expense — at the time the initial construction loan was made — but that there would be no further underwriting costs because Capmark would be the bank providing the permanent financing.

C. Alleged Defaults and Breaches of the Loan Agreement

1. The Cash-Flow Fund

Martin testified that the limited liability companies purchased the apartment complexes and completed the rehabilitation of the complexes on December 1, 2008, on schedule and under budget. The limited liability companies then began the process of repopulating the apartments. Martin testified that as the apartments were being rehabilitated, the global financial markets crashed, which resulted in unprecedented setbacks in the local rental market. The crash of the financial markets, combined with high unemployment rates, adversely impacted the limited liability companies’ ability to lease the apartments, which, in turn, negatively impacted their cash flow. Martin testified that notwithstanding these difficult circumstances near full occupancy was achieved in both apartment complexes, although certain rent concessions had to be made. The limited liability companies also made additional investments in the project in order to enhance the marketability of the apartments.

Martin testified that in the midst of the economic downturn and the limited liability companies’ cash-flow problems, Capmark refused the limited liability companies’ request to access the $300,000 cash-flow funding. Martin states that Capmark’s refusal occurred at a time when the limited liability companies were in full compliance with their obligations under the loan agreement. Martin contends that Cap-mark’s failure to provide the cash-flow funding as promised adversely affected the limited liability companies’ subsequent ability to perform under the loan agreement.

2. Permanent Financing

In September 2009, the limited liability companies received a letter from Capmark advising them that the notes would mature on October 1, 2010. The letter informed the limited liability companies that they were being notified 12 months in advance of the maturity date so that refinancing arrangements may be made before the maturity date of the loan. Martin testified that the letter seemed to suggest that the limited liability companies should seek permanent financing elsewhere. Martin stated that the limited liability companies became concerned that Capmark may not honor its promise to provide permanent financing. Randall contacted Nick Liska, a Capmark representative, and specifically addressed the letter and the issue of permanent financing. Liska responded that the letter was a standard 12-month notice that is sent out before the maturity date for all loans serviced by Capmark and does not state that “Capmark will not continue with the loan agreement.” Capmark never provided the limited liability companies with permanent financing.

S. The Performance Test

On December 22, 2009, the limited liability companies received a letter from Cap-mark stating that they were in default of the loan agreement for failing to satisfy a financial-performance test. Martin stated that the performance test was based on a “complete fiction” because, he says, the interest rate applied by Capmark had no relevancy to the then current markets. Martin testified that the interest rate applied by Capmark for the performance test was an artificially high 8% when the then current interest rate was closer to 3%. Martin stated that Capmark essentially invented a default and then demanded, pursuant to the pay-down clause in the loan agreement, that the limited liability companies reduce the principal balance of the loan by $2,237,487.11. The limited liability companies protested and, according to Martin, Capmark initially represented that the demand letter was merely a formality and that a loan modification could be “worked out.” On March 9, 2010, Cap-mark and the limited liability companies entered into a prenegotiation agreement pursuant to which the parties agreed to participate in good-faith discussions concerning the status of the loan and a possible modification or other resolution. The agreement provided that either party had the right to terminate the “work-out” discussions upon written notice to the other party specifying the effective date of the termination of the discussions.

"Mandatory Performance Test Paydown. On each Performance Test Date the Property shall be required to meet the following performance tests (each, as applicable, a ‘Performance Test ’): the Debt Service Coverage Constant Ratio on a trailing three (3) month basis shall be no less than (i) 1.00:1.00 on the first (1st) Performance Test Date, (ii) 1.07:1.00 on the second (2nd) Performance Test Date, and (iii) 1.15:1.00 on the third (3rd) Performance Test Date. In the event the Property does not meet the Performance Test for the applicable Performance Test Date, Borrower shall, within ten (10) days of written demand therefor, pay to Lender the amount, as reasonably determined by Lender, which is necessary to be applied to the outstanding principal balance of the Loan in order for the Property to meet the immediately preceding Performance Test (such amount, a 'Mandatory Performance Test Paydown '), together with the Exit Fee due upon the prepayment made with such Mandatory Performance Test Paydown. Failure by Borrower to deliver the Mandatory Performance Test Pay-down within ten (10) days of written demand therefor shall be an Event of Default hereunder.”

However, RGR states that the Capmark representative with whom they had been working was replaced and that the negotiations then went in a different direction. In May 2010, the limited liability companies received a “Notice of Default — Demand for Payment” from Capmark stating that “events of Default” had occurred, including the failure to make all payments due in April 2010 and May 2010 and the failure to pay the $2,237,487.11 performance test pay down of principal. Also in May 2010, Capmark began charging the limited liability companies default interest. On June 16, 2010, Capmark accelerated the loan by declaring the entire unpaid principal balance with all accrued and unpaid interest and charges immediately due.

Capmark contends that the limited liability companies are in default of section 11.01(t) of the loan agreement for failing to make the mandatory pay down of principal on the loan. Capmark further alleges that the limited liability companies ceased making the monthly debt-service payments on the loan in April 2010, which constitutes a default under section 11.01(a) of the loan agreement. Additionally, Capmark alleges that the loan matured on October 1, 2010, and that the limited liability companies did not repay the loan at that time, which constitutes a default of the loan agreement under section 11.01(c)

A The Guaranty

Martin testified that at about the same time Capmark started charging default interest and accelerated the loan, it also asserted the existence of the full-payment and performance guaranty discussed above in Part A of this opinion. Martin stated that much like the performance test, Capmark’s assertion of the unconditional guaranty was a manufactured pretext to compel RGR to acquiesce in Cap-mark’s demands. Martin stated that the loan was a true nonrecourse loan and that he and Randall “were never asked to, never agreed to, and did not unconditionally” guaranty the loan. Martin claims that the signature page of the full-payment and performance guaranty does not match the rest of the document because the document is identified as HOU:2720221A and the signature page is identified as HOU:2720221ü. Martin further supports his contention with the affidavit of Chad Hagood, Capmark’s loan officer for the loan during the application negotiations with the limited liability companies. Ha-good testified as follows:

“The Loan in this case was offered to the Borrowers as Capmark non-recourse interim loan structure. I assisted in preparing, and signed, with approval from Capmark’s New York office, the Loan application.... The non-recourse paragraph on page 3 of the Loan application reflects the general non-recourse structure and the ‘carve-out’ conditions of the non-recourse provisions for the Capmark loan.
“I never asked Mr. Martin or Mr. Randall to provide an unconditional guaranty of the Loan. Moreover, no one from Capmark, including the Capmark credit committee, ever asked me to even discuss with Mr. Martin or Mr. Randall the possibility of unconditionally guarantying the Loan. Furthermore, if an unconditional guarantee was a condition to the Loan’s final approval, I was specifically not informed of this material change and have no knowledge of any discussions internally at Capmark relating to the change in question. In fact, to the best of my knowledge and belief, the non-recourse structure, without unconditional personal guarantees (with the exception of the standard ‘carve-out’ matters), was specifically offered, structured, and priced in the interest rate for this Loan.
“As I was not involved in the preparation, review, negotiations or execution of the loan documents, I have no knowledge regarding whether, or how, a signature for Mr. Martin or Mr. Randall would be found on a Full Payment and Performance Guaranty. Such a guaranty would not be consistent with the transaction that Capmark’s underwriting group presented to me and I, in turn, presented to Messrs. Martin and Randall.”

Capmark also contends that Martin and Randall’s repudiation of the full-payment guaranty constitutes a default pursuant to section 11.01(i) of the loan agreement.

On June 25, 2010, Capmark sued RGR alleging that the limited liability companies were in default of the loan agreement and sought the appointment of a receiver for the apartment complexes that served as collateral for the loan. Additionally, Cap-mark sought certain injunctive relief and asserted breach-of-contract claims against RGR, for which it sought the amounts allegedly due under the loan agreement.

On July 13, 2010, RGR answered Cap-mark’s complaint, generally denying Cap-mark’s allegations, and asserted certain affirmative defenses. RGR also counterclaimed against Capmark alleging that Capmark had fraudulently “obtained or otherwise created” the full payment and performance guaranty and had fraudulently represented that $300,000 in cash-flow funding would be provided. RGR sought to have all the loan documents rescinded based on the alleged fraud and any other equitable relief the trial court deemed just. RGR also alleged that Capmark had breached the agreement to provide the $300,000 in cash-flow funding and had breached the prenegotiation “work-out” agreement. On September 13, 2010, Cap-mark answered RGR’s counterclaim and asserted certain affirmative defenses.

On October 27, 2010, the trial court ordered the parties to participate in mediation, which was unsuccessful. On November 15, 2010, Capmark notified RGR that it had noticed the properties for a nonjudicial foreclosure sale on December 8, 2010. On December 1, 2010, RGR moved the trial court to prevent the scheduled foreclosure and/or for a preliminary injunction, arguing that Capmark had unclean hands that prevented it from seeking the equitable remedy of foreclosure and that RGR was entitled to injunctive relief because, it said, it would suffer an irreparable injury if the properties were foreclosed on; that it had a reasonable likelihood of success on the merits of its breach-of-contract claim; and that the hardship imposed upon it by the foreclosure would unreasonably outweigh any hardship to Capmark caused by granting the injunctive relief. RGR also argued that it was entitled to certain equitable relief, including the reformation of the loan documents.

On December 2, 2010, Capmark responded to RGR’s motion to prevent foreclosure and/or for a preliminary injunction, arguing that RGR had not satisfied the requirements entitling it to a preliminary injunction. On December 2, 2010, RGR filed a supplement in support of its motion to prevent foreclosure and/or for a preliminary injunction, arguing that Capmark’s failure to perform its own obligations entitled RGR to enjoin the foreclosure. On December 7, 2010, the trial court entered an order granting RGR’s motion for a preliminary injunction, stating:

“This Court, having considered [RGR’s] Motion to Prevent Foreclosure Scheduled for December 8, 2010, and/or for Preliminary Injunction, along with the pleadings, supporting arguments, exhibits, and related documents, makes the following preliminary findings:
“1. Without an injunction preserving the status quo with regard to said foreclosure, [RGR] will suffer immediate and irreparable injury, including, but not limited to, damage to [its] ongoing business, damage to [its] reputation, damage to [its] relationship with [its] tenants, and loss of [its] equity in the Project.
“2. The injunction is necessary because, in light of the foregoing items of damage, [RGR has] no adequate remedy at law.
“3. [RGR has] demonstrated a reasonable likelihood of success on the merits of this case, including, without limitation, (i) proving that Capmark breached its agreement to fund a $300,000 cash flow fund; (ii) proving that Capmark breached its agreement to provide permanent financing; and (iii) proving that Capmark engaged in inequitable conduct such that it has unclean hands and is prevented from relying on equitable remedies.
“4. The hardship suffered by [RGR], should the injunction not issue, will be much greater than any hardship experienced by Capmark if the request for injunctive relief is in fact granted. Indeed, this Court has previously determined that the Project is being properly preserved, well managed, and is not being subjected to any waste.”

The trial court also ordered that RGR post a $30,000 bond; ordered that all funds being held in the trust account of RGR’s counsel be deposited with the clerk of the trial court; and ordered that all monthly rent revenues from the apartments be deposited with the clerk of the court. Cap-mark appeals.

Standard of Review

In Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008), this Court set forth the standard for reviewing an order issuing a preliminary injunction:

“We have often stated: ‘The decision to grant or to deny a preliminary injunction is within the trial court’s sound discretion. In reviewing an order grant-
ing a preliminary injunction, the Court determines whether the trial court exceeded that discretion.’ SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So.2d 706, 709 (Ala.2005).
“To the extent that the trial court’s issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply. We find the rule applied by the United State Supreme Court in similar situations to be persuasive: ‘We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion.’ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); see also Justice Murdock’s special writing while sitting as a judge on the Court of Civil Appeals in City of Dothan v. Eighty-Four West, Inc., 871 So.2d 54, 60 (Ala.Civ.App.2003) (Murdock, J., concurring specially on application for rehearing) (cited with approval in McGlathery v. Richardson, 944 So.2d 968, 970 (Ala.Civ.App.2006)).”

12 So.3d at 1175-76.

Discussion

Capmark argues, among other things, that the trial court exceeded its discretion in granting RGR a preliminary injunction because, it says, RGR failed to establish the necessary elements required to support an injunction. A preliminary injunction should be issued only when the party seeking an injunction has established

“ ‘ “(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].” ’
“Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003) (quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)).”

Adkins, 12 So.3d at 1176. The party seeking the preliminary injunction bears the burden of producing evidence sufficient to support its issuance. Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003). “If the party seeking the injunction fails to establish each of these prerequisites, then a preliminary injunction should not be entered. If the trial court enters a preliminary injunction when these prerequisites have not been met, the trial court’s order must be dissolved and the case remanded.” Blount Recycling, LLC v. City of Cullman, 884 So.2d 850, 853 (Ala.2003).

A. Likelihood of Success on the Merits

Breach-of-Contract Claims

Capmark argues on appeal that the trial court erred in finding that RGR demonstrated a reasonable likelihood of success on the merits of its breach-of-contract claims alleging that Capmark “breached its agreement to fund a $300,000 cash flow fund” and “breached its agreement to provide permanent financing.” In order to recover on a breach-of-contract claim, a party must establish: (1) the existence of a valid contract binding the parties; (2) the plaintiffs performance under the contract; (3) the defendant’s nonperformance; and (4) damages. Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002). Capmark argues that RGR cannot establish the existence of a valid agreement obligating Cap-mark to provide cash-flow funding of $800,000 and to provide permanent financing.

1. Alleged Cash-Flow-Funding Breach

RGR alleged in its counterclaim that “the loan papers contemplated an additional $300,000 of funding”; that Cap-mark “promised at and after closing to make $800,000 available to Borrowers if cash flow shortages arose as contemplated in the loan documents ”; and that when Capmark was asked to honor this promise it refused to do so. RGR argued in its motion for a preliminary injunction that the “loan papers contemplated an additional $300,000 of funding”; that Capmark promised the limited liability companies that the money would be available to them in the future if it was necessary to fund their cash-flow needs; and that Capmark ignored their request to provide the cash-flow funding.

Despite RGR’s assertions, it has failed to direct this Court to any provision in the loan documents to support its allegations. Indeed, nothing in a reading of the express terms of the loan documents can be construed as obligating Capmark to provide the limited liability companies an additional $300,000 in cash-flow funding. Pursuant to sections 19.01 and 2.01(a) of the loan agreement, Capmark agreed to lend the limited liability companies the maximum principal loan amount of $12,322,500. Any allegation by RGR that the loan documents obligated Capmark to lend funds beyond this amount is contradicted by the plain language of the loan documents. Accordingly, to the extent that RGR relies on the loan documents, RGR cannot establish the existence of a valid agreement obligating Capmark to provide $300,000 in cash-flow funding.

However, contrary to its position taken in earlier pleadings that the loan papers contemplated Capmark’s providing RGR an additional $300,000 in cash-flow funding, RGR argues in its appellate brief that Capmark’s agreement to provide the limited liability companies the $300,000 in cash-flow funding was a “separate but contemporaneous” agreement. We disagree and find that there is no “separate but contemporaneous” agreement obligating Capmark to provide an additional $300,000 in cash-flow funding to the limited liability companies.

We initially note that other than the amount to be loaned, RGR has offered nothing in the way of the essential terms of the agreement, including but not limited to the interest rate to be charged, the term of the loan, and any restrictions placed on the loan.

“[A]ny contract must express all terms essential to the transaction with definiteness sufficient to enable a court to enforce the parties’ agreement. White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1051 (Ala.2008). ‘“[A] contract that ‘ “leav[es] material portions open for future agreement is nugatory and void for indefiniteness.” ’ ” ’ Id. (quoting Miller v. Rose,, 138 N.C.App. 582, 587-88, 532 S.E.2d 228, 232 (2000), quoting in turn MCB Ltd. v. McGowan, 86 N.C.App. 607, 609, 359 S.E.2d 50, 51 (1987)).”

Macon Cnty. Greyhound Park, Inc. v. Knowles, 39 So.3d 100, 108 (Ala.2009). Because the alleged agreement to provide $300,000 in cash-flow funding is silent as to its essential terms, it is unenforceable.

Further, section 18.02 of the loan agreement contains a merger and integration clause, which provides:

“Entire Agreement; Modifications; Time of Essence. This Loan Agreement, together with the other Loan Documents, contain[s] the entire agreement between Borrower and Lender relating to the Loan and supersede^] and re-placets] all prior discussions, representations, communications and agreements (oral or written). If the terms of any of the Loan Documents are in conflict, this Loan Agreement shall control over all of the other Loan Documents unless otherwise expressly provided in such other Loan Document. No Loan Document shall be modified, supplemented or terminated, nor any provision thereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing. Time is of the essence with respect to all of the Borrower’s obligations under the Loan Documents.”

(Emphasis added.) This Court has stated the following with regard to merger clauses:

“A merger clause creates ‘a presumption that the writing represents an integrated, that is, the final and complete, agreement of the parties.’ Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001). A merger clause invokes the parol evidence rule, which precludes a court from considering extrinsic evidence of prior or contemporaneous agreements in order to ‘change, alter, or contradict’ the terms of the integrated contract. Palm Harbor Homes, 798 So.2d at 660.
“A merger clause, however, does not bar evidence of contemporaneous collateral agreements between the parties. See Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280, 288 (Ala.2006) (‘ “ ‘It is only when the instrument shows that it does not contain all the terms of the contract as to both parties to it that evidence may be offered to show further stipulation than those expressed, unless it is proposed to prove an engagement independent of and collateral to the matters embraced in such written instrument.’ ” ’ (quoting Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 153, 117 So.2d 348, 352 (1960), quoting in turn Woodall v. Malone-Harrison Motor Co., 219 Ala. 366, 368, 122 So. 357, 358 (1929) (emphasis added in Shapiro))); and Southern Guar. Ins. Co. v. Rhodes, 46 Ala.App. 454, 459, 243 So.2d 717, 721 (1971) (‘This [merger-clause] principle does not prohibit negotiation of more than one agreement at the same time.... If such agreements are clearly collateral, separate and distinct as to subject matter there is no problem presented. They are two separate contracts and are to be considered as such.’).”

Ritter v. Grady Auto. Group, Inc., 973 So.2d 1058, 1062 (Ala.2007). In Ritter, this Court discussed the three-pronged test for determining whether alleged contemporaneous agreements were truly collateral and therefore outside the scope of a merger clause:

“In Hartford Fire [Insurance Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960) ], this Court quoted various tests used by other courts to determine whether an agreement is collateral and therefore outside the scope of a merger clause. The Court quoted Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), a ‘leading case,’ which gave three requirements for an agreement to be beyond the scope of a merger clause: ‘ “(1) The agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing.” ’ Hartford Fire, 270 Ala. at 154, 117 So.2d at 353 (quoting Mitchill v. Lath, 247 N.Y. at 381, 160 N.E. at 647). The Court also quoted Professor Wigmore, IX Wigmore, Evidence § 2430, 98 (3d ed.): ‘ “This intent [to form a collateral agreement] must be sought where always intent must be sought ..., namely, in the conduct and language of the parties and the surrounding circumstances.” ’ 270 Ala. at 154, 117 So.2d at 853. In Southern Guaranty [Insurance Co. v. Rhodes, 46 Ala.App. 454, 243 So.2d 717 (1971) ], the Court of Civil Appeals looked to the ‘conduct and language of the parties, the surrounding circumstances and the written instrument’ in order to determine ‘whether it was the intent of the parties that the written instrument embody all of the prior negotiations ... or whether ... it was intended there be an additional, collateral and separate oral agreement.’ 46 Ala.App. at 459, 243 So.2d at 721. That court also looked to the Mit-chill test to evaluate the collateral nature of the agreements.
“We held in Alabama Electric Cooperative[, Inc. v. Bailey’s Construction Co., 950 So.2d 280 (Ala.2006),] that an oral agreement to insure was not collateral to an insurance policy, ‘[i]n light of the fact that the written contract dealt expressly with the subject matter of the alleged collateral oral agreement.’ 950 So.2d at 289. The oral agreement ‘was one the parties would naturally have included in the written agreement.’ 950 So.2d at 289. Similarly, we held in Hartford Fire that an oral agreement to insure was not collateral to an insurance policy because it was ‘closely bound to the written one, and no doubt intended to be made part and parcel thereto.’ 270 Ala. at 155, 117 So.2d at 354. The Court of Civil Appeals held in Southern Guaranty that the oral agreement to insure met none of the three factors of the Mitchill test and, therefore, was not a collateral agreement.”

973 So.2d at 1062-63.

In this case, the alleged agreement obligating Capmark to provide the limited liability companies an additional $300,000 in cash-flow funding fails to satisfy the Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), test. First, the alleged agreement is not “collateral in form” because it deals with the identical subject matter as that of the loan agreement and other loan documents, that being the financing of the limited liability companies’ purchase and rehabilitation of the apartment complexes. See Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280, 289 (Ala.2006) (holding that an oral agreement to insure was not collateral to an insurance policy “[i]n light of the fact that the written contract dealt expressly with the subject matter of the alleged collateral oral agreement”). Second, the alleged agreement to provide $300,000 in cash-flow funding contradicts the express and implied provisions of the loan documents. In sections 19.01 and 2.01(a) of the loan agreement, Cap-mark agreed to loan the limited liability companies only the maximum principal loan amount of $12,322,500. Thus, an alleged promise to loan additional funds to the limited liability companies over and above the maximum loan amount of $12,322,500 directly contradicts the express provisions of the loan documents. Finally, the alleged agreement to provide $300,000 for a cash-flow fund is an agreement the parties would “ordinarily be expected to embody in the writing.” Section 8—9—2(7), Ala.Code 1975, requires that “[e]very agreement or commitment to lend money, delay or forbear repayment thereof ... except for consumer loans with a principal amount financed less than $25,000” must be in writing or the agreement is void. Every aspect of the parties’ agreement is embodied in the numerous loan documents, including the loan agreement, which alone exceeds 70 pages. Considering the requirement in § 8-9-2(7) that agreements to lend money in excess of $25,000 be evidenced by a writing, the fact that the parties had evidenced every other aspect of their agreement in writing, and the closely related nature of the loan documents and the alleged agreement to provide cash-flow funding, the alleged agreement obligating Capmark to provide $300,000 in cash-flow funding is one the parties would “ordinarily be expected to embody in the writing.” Ritter, 973 So.2d at 1062.

Because the alleged agreement obligating Capmark to provide cash-flow funding cannot be considered a collateral agreement, the merger clause contained in the loan agreement would serve to invalidate said agreement. Accordingly, RGR cannot establish the existence of a separate contemporaneous agreement obligating Cap-mark to provide it with $300,000 in cash-flow funding.

2. Alleged Permanent-Financing Breach

RGR argues that Capmark promised during loan negotiations that it would at the appropriate time convert the construction financing to permanent financing. Martin testified that a Capmark representative informed the limited liability companies that “the benefit to doing this deal with us is that ... while the rate is a bit higher ... you’re only going to have one underwriting expense. One and done....” Martin explains that the point of the statement is that the limited liability companies would incur just one underwriting expense — at the time the initial construction loan was made — and that there would be no further underwriting costs because Capmark would be the bank providing the permanent financing. In September 2009, the limited liability companies received a letter from Capmark advising them that the note would mature on October 1, 2010. Martin testified that the letter seemed to suggest that the limited liability companies should seek permanent financing elsewhere and that the limited liability companies became concerned that Capmark may not honor its promise to provide permanent financing. The limited liability companies contacted a Capmark representative regarding the letter and were told that the letter was a standard 12-month notice sent out before the maturity date for all loans serviced by Cap-mark and does not state that “Capmark will not continue with the loan agreement.”

RGR’s claim that Capmark agreed to provide permanent financing directly contradicts the express terms of the loan agreement. Section 2.06 of the loan agreement provides, in part, as follows: “No Exit Fee shall be due, however, if Borrower refinances this Loan with the proceeds of a loan funded for Borrower by Capmark Finance Inc. or Capmark Bank. Borrower acknowledges that neither Capmark Finance Inc. nor Capmark Bank has any obligation to make such a loan.” RGR has offered nothing to the contrary. Further, any alleged promise made by Cap-mark during the loan negotiations would have been superseded and invalidated by the merger and integration clause in the loan agreement. Thus, we conclude that RGR cannot prove the existence of a valid and binding agreement obligating Cap-mark to provide the limited liability companies permanent financing.

Because RGR has failed to establish the existence of a valid and binding contract obligating Capmark to provide it with $300,000 in cash-flow funding and with permanent financing, it cannot demonstrate a reasonable likelihood of success on the merits of its breach-of-contract claims. Accordingly, we conclude that the trial court’s finding that RGR had demonstrated a reasonable likelihood of success on the merits of its underlying breach-of-contract claims is not supported by the evidence, and we hold that the trial court exceeded its discretion in issuing the preliminary injunction. Having determined that RGR has failed to establish a reasonable likelihood of success on the merits of its breach-of-contract claims, it is unnecessary for this Court to determine whether RGR has proven the remaining elements necessary to entitle it to a preliminary injunction. Therefore, we pretermit any discussion of those issues.

B. Unclean Hands

RGR alleged and the trial court found that RGR had demonstrated a reasonable likelihood of success on the merits of its claim that Capmark had engaged in inequitable conduct such that it has unclean hands preventing it from relying on the equitable remedy of foreclosure. RGR also based this argument on its claims that Capmark had breached the agreements to provide an additional $300,000 in cash-flow funding and to provide permanent financing addressed above. This Court, having found that RGR failed to demonstrate the existence of valid binding agreements obligating Capmark to provide the cash-flow funding and the permanent financing, must also conclude that RGR cannot establish that Capmark had “unclean hands” based on the alleged breach of those nonexistent agreements such as to deny it the equitable remedy of foreclosure. Accordingly, we reverse the trial court’s related holding that RGR had demonstrated a reasonable likelihood of success on the merits of its unclean-hands argument.

Conclusion

Based on the foregoing, we conclude that RGR has failed to establish the requisite elements entitling it to a preliminary injunction, and we reverse the trial court’s judgment issuing the injunction. We also conclude that RGR failed to establish that Capmark had “unclean hands” so as to prohibit it from seeking the equitable remedy of foreclosure, and we reverse the trial court’s finding as to that claim. Because we reverse the trial court on the above-mentioned grounds, it is unnecessary for us to discuss the remaining issues.

REVERSED AND REMANDED.

MALONE, C.J., and STUART, PARKER, SHAW, MAIN, and WISE, JJ., concur.

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

      . According to the documents in the record, Randall is the sole member of RGR, LLC; Martin is the sole member of TTM MB Park, LLC; and both Randall and Martin are the members of MB Park, LLC.

      . The limited liability companies had been seeking a loan amount in excess of the $12,322,500 actual principal amount of the loan.

      . Section 2.05(f) of the loan agreement provides:

      . RGR made no argument in this motion as to the lack of “an adequate remedy at law” prong of the test for a preliminary injunction. Also, RGR made no argument in the motion regarding the "likelihood of success on the merits” of its fraud claims. See discussion of Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008), in "Standard of Review,” infra.

      . The issuance of a preliminary injunction is an appealable order. See 4(a)(1)(A), Ala. R.App. P.

        . RGR asserted two counts of breach of contract in its counterclaim against Capmark. In the first count, RGR alleged that Capmark breached its agreement to provide the limited liability companies $300,000 in cash-flow funding. In the second count, RGR alleged that the limited liability companies had a pre-negotiation agreement with Capmark to participate in good-faith discussions regarding the status of the loan and that Capmark breached this agreement by exercising remedies under the loan documents without first terminating the prenegotiation agreement in writing. However, in support of its motion for a preliminary injunction, RGR argued that it had a reasonable likelihood of success on its claim alleging a breach of the agreement to provide $300,000 in cash-flow funding and, rather than arguing that it had a reasonable likelihood of success on its claim alleging a breach of the prenegotiation agreement, RGR argued that Capmark had breached an agreement to convert the loan from construction financing to permanent financing. Following a hearing on the motion for a preliminary injunction, a transcript of which is not contained in the record, the trial court found that RGR had established a reasonable likelihood of success on the merits of its breach-of-contract claim alleging a breach of the agreement to provide permanent financing. On appeal, the parties have framed the issue as being whether RGR had sufficiently demonstrated that it had a reasonable likelihood of success on the merits of its breach-of-contract claim alleging a breach of the agreement to provide permanent financing. Although it is not entirely clear from the record, it appears that RGR has abandoned its breach-of-contract claim alleging a breach of the prenegotiation agreement and amended its pleadings pursuant to Rule 15, Ala. R. Civ. P., to assert the claim alleging a breach of an agreement to provide permanent financing. Accordingly, we will analyze this element of the preliminary injunction based on the alleged breach of the agreement to provide permanent financing.

      . Assuming the alleged agreement obligating Capmark to provide the limited liability companies cash-flow funding was a separate and collateral agreement definite in terms, we conclude that, based on the evidence contained in the record and the arguments presented by the parties’ on appeal, such an alleged agreement would violate § 8 — 9—2(7), Ala.Code 1975, and would be unenforceable. However, because we have concluded that RGR has not established the existence of a separate and contemporaneous agreement, we need not address this issue in detail.

      . As stated above, RGR also asserted fraud claims in its counterclaim. However, in its motion for a preliminary injunction RGR offered little to no argument that it had a reasonable likelihood of success on the merits of its fraud claims. In the trial court’s order granting the preliminary injunction, an order drafted by RGR, the trial court made no finding as to the reasonableness of RGR’s likelihood of success on the merits of the fraud claims. We, as an appellate court, cannot address this question without the trial court in the first instance having ruled upon the issue. See Smith v. Smith, 928 So.2d 287 (Ala.Civ.App.2005) (holding that a trial court should not be held in error for matters that it neither ruled upon nor was provided the opportunity to rule upon).


author: THOMPSON,

text:
    Scott A. CASCADEN v. WINN-DIXIE MONTGOMERY, LLC.
    2100295.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.
    Jay A. York of York & Pendleton, Mobile, for appellant.
    John R. Bradwell and William H. Webster of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellee.
   THOMPSON,

Presiding Judge.

Scott A. Cascaden appeals from a summary judgment entered by the Mobile Circuit Court in favor of Winn-Dixie Montgomery, LLC, in his action against that company arising under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. For the reasons stated herein, we affirm.

The evidence of record, considered in the light most favorable to Cascaden, see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990), reveals the following pertinent facts. Cascaden began working for Winn-Dixie in 1999. On December 18, 2001, he was involved in an automobile accident while on his way home from a Christmas party that had been hosted by some of the managers of the store at which he worked. As a result of the accident, Cascaden suffered injuries to his lower back and neck. He was treated by two doctors for injuries he sustained in the accident, and he attended physical therapy. After he completed physical therapy, his back felt better for about three months. He then began to experience pain in his back again, and he sought additional medical treatment for it. Although the record is not clear, the parties both indicate in their appellate briefs that Cascaden left his employment with Winn-Dixie in 2002.

In 2007, Cascaden went back to work for Winn-Dixie as a meat cutter. As part of the hiring process, he filled out a medical questionnaire. Regarding that medical questionnaire, the following exchange occurred during Cascaden’s deposition:

“Q. On here, it asked if you have had a prior back injury and you put, no. And it asks, have you consulted or been treated by clinics, doctors, physicians or other practitioners for reasons other than an annual physical exam within the past five years? And you checked, no. And then it says. Are you — question three, have you ever injured your neck or back? And you put, no. But we’ve already covered that you did have the automobile accident in 2001. So can you explain for me why you did not put, yes, in answers to those questions?
“A. I only have one explanation. I had a fear of not getting the job if I put those answers down there. And if they knew that I had those problems, they may not hire me to be a meat cutter and I needed the job.
“Q. Okay. As far as the question, have you consulted or been treated by clinics, doctors, physicians or other practitioners for reasons other than an annual physical exam within the past five years, you checked, no?
“A. Could I see that?
“Q. Sure.
“A. I can’t image — I have no answer for that. I cannot image why I put, no, on that.
“Q. Okay. You’ll agree with me that the response, no, to that question was not true?
“A. That’s not true. That one was— because I know I’ve been treated for things like colds and, you know, bronchitis, things like that.
“Q. And you have been treated for back pain?
“A. Yes.
“Q. And the answer to number three. Have you ever injured your neck or back? You put, no.
“A. Yes.
“Q. And was that answer correct?
“A. No, it wasn’t.
“Q. Okay. Well that’s a bad question. Was that answer truthful?
“A. Ah, no. No, it was not.
“Q. And then on the front page where it says, do you now have or have you had back injury? You put, no. Was that an accurate statement at the time?
“A. I think at the time that was accurate. I don’t think that at the time— like I said, I was getting better. You got to understand, my pain in the first few years was not constant. It wasn’t until, you know, the last few years that it has become so constant.
“Q. Okay. But you had suffered a back injury in an automobile accident?
“A. Yes.”

One of the injuries forming the basis of the present action occurred on March 19, 2008. On that day, while Cascaden was working for Winn-Dixie, he experienced a sharp pain in his back when lifting a heavy box. The next day, he told someone working for Winn-Dixie about the pain. He took five days off work, obtained an epidural injection, and returned to work without another mention of the incident. On November 2, 2009, Cascaden again hurt his back while working for Winn-Dixie and lifting a heavy box. That same day, he informed an assistant manager of the incident.

On January 5, 2010, Cascaden filed an action against Winn-Dixie seeking benefits under the Workers’ Compensation Act. Cascaden alleged that he had injured his back while working in the line and scope of his employment with Winn-Dixie and that he was permanently partially disabled.

On June 24, 2010, Winn-Dixie filed a motion for a summary judgment. Relying on § 25-5-51, it argued that Cascaden’s claims were barred because he had misrepresented his medical history in his employment application. Section 25-5-51 provides, in pertinent part:

“No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his or her employment.
“At the time an employer makes an unconditional offer of employment or removes conditions previously placed on a conditional offer of employment, the employer shall provide the employee with the following written warning in bold type print, ‘Misrepresentations as to preexisting physical or mental conditions may void your workers’ compensation benefits.’ If the employer defends on the ground that the injury arose in any or all of the last above stated ways, the burden of proof shall be on the employer to establish the defense.”

Winn-Dixie attached to its motion, among other things, portions of the transcript of Cascaden’s deposition and some of his medical records.

Cascaden filed a response to the summary-judgment motion. He admitted that, in the course of entering into an employment relationship with Winn-Dixie in 2007, Winn-Dixie had provided him with the written warning as required by § 25-5-51. He asserted, however, that Winn-Dixie had known about his prior back injury because it had occurred during his period of prior employment with Winn-Dixie as part of an event associated with that employment. Thus, he argued, Winn-Dixie could not have relied on his false representations in the medical questionnaire concerning his previous back injury, and, as a result, he argued, Winn-Dixie could not assert a misrepresentation defense to his worker’s compensation claims.

Winn-Dixie filed a reply in which it argued that reliance is not a material element of the defense established by § 25-5-51 and that, even if it were, Cascaden had failed to prove that Winn-Dixie had prior knowledge that he had injured his back in the car accident.

On November 22, 2010, the trial court entered a summary judgment in favor of Winn-Dixie. It found that Winn-Dixie had provided substantial evidence of all the elements of the defense set forth in § 25-5-51 and that Cascaden had failed to present any material evidence in opposition to that defense. Cascaden filed a postjudgment motion, which the trial court denied. Cascaden appeals.

In another case arising under the Workers’ Compensation Act in which a trial court entered a summary judgment, this court set forth the following standard of review:

“The appropriate standard of review of a summary judgment is as follows:
“ ‘It is well settled that a motion for summary judgment is properly granted in situations where there is no genuine issue of material fact and the
movant is entitled to a judgment as a matter of law. Clay v. River Landing Corp., 601 So.2d 919 (Ala.1992). In considering a motion for summary judgment, the trial court must view all reasonable inferences from the evidence in a light most favorable to the non-moving party. Wills v. Klingenbeck, 455 So.2d 806 (Ala.1984). Further, the movant has the burden of establishing that there is no genuine issue of material fact. Burks v. Pickwick Hotel, 607 So.2d 187 (Ala.1992). If the movant meets its burden, then the burden shifts to the non-moving party, who must show by substantial evidence that a genuine issue of material fact does exist in order to withstand the motion for summary judgment. Burks, 607 So.2d 187; Clay, 601 So.2d 919.’ ”

Page v. Cox & Cox, Inc., 892 So.2d 413, 417 (Ala.Civ.App.2004) (quoting Rich v. Warren Mfg., Inc., 634 So.2d 1015, 1016-17 (Ala.Civ.App.1994)).

Cascaden contends that Winn-Dix-ie did not rely on the misrepresentations contained in the medical questionnaire when it employed him in 2007 because Winn-Dixie already knew that he had previously injured his back. Thus, he argues, his claims were not subject to Winn-Dix-ie’s assertion of the misrepresentation defense contained in § 25-5-51.

In Ex parte Southern Energy Homes, Inc., 603 So.2d 1036 (Ala.1992), our supreme court judicially created a defense for an employer to an employee’s worker’s compensation action when the employee has falsely represented that he or she did not have a prior injury. Setting forth the elements of that defense, the court wrote:

“We adopt the standard set forth in 1C Larson, The Law of Workmen’s Compensation § 47.53 (1986), which provides that an employee who makes false statements about his physical condition in a pre-employment application will be denied workers’ compensation benefits when the following factors are present:
“ '(1) The employee must have knowingly and willfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.’
“1C Larson § 47.53 at 8-394. The burden is on the employer to prove each of these elements.”

Southern Energy Homes, 603 So.2d at 1039-40. Thus, under this judicially created defense, an employer was required to prove that it had relied on the employee’s misrepresentation in hiring the employee.

After our supreme court issued its decision in Southern Energy Homes, the legislature amended § 25-5-51 to add the provision on which Winn-Dixie based its summary-judgment motion. As previously quoted, that provision states:

“No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his or her employment.”

This court recently set forth the elements of a defense under § 25-5-51 that an employer must prove:

“[T]o prevail under [§ 25-5-51], [an employer is] required to prove that (1) in the course of [the employeej’s entering into his employment relationship with [the employer], (2) [the employer] provided [the employee] with the written warning set forth in § 25-5-51, (3) [the employee] knowingly and falsely misrepresented his physical or mental condition, (4) [the employee]’s misrepresentation was made in writing, and (5) [the employee]’s condition was aggravated or reinjured in an accident arising out of and in the course of his employment. § 25-5-51, Ala.Code 1975.”

Hornady Truck Lines, Inc. v. Howard, 985 So.2d 469, 477 (Ala.Civ.App.2007). Absent from the statutory misrepresentation defense is a requirement that an employer prove that it relied on the employee’s false statements in hiring the employee. The question before this court, then, is whether this court should engraft such a requirement on the statutory defense despite the legislature’s failure to list such a requirement in the statute.

One commentator has recognized that, under the statute, an employer is not required to prove reliance as an element of the misrepresentation defense, even though, under prior easelaw, it was required to do so:

“The judicial misrepresentation defense applies only if the employer has relied on the false representation when making the decision to hire the employee. The statutory misrepresentation defense, on the other hand, does not expressly require reliance on the part of the employer. To date, no case has commented on this difference, but it can only be assumed that the legislature intentionally failed to insert reliance as an element of the statutory defense, so the courts should not feel obligated to en-graft their own requirement.”

1 Terry A. Moore, Alabama Workers’ Compensation § 12:31 (West 1998) (footnotes omitted). As noted in this treatise and as recognized by this court in Hornady Truck Lines, the plain language of § 25-5-51 does not include a requirement that, to assert the defense contained therein, an employer must prove that it relied on the employee’s misrepresentation in hiring the employee. Moreover, the legislature was fully capable of including such a requirement had it chosen to do so. See, e.g., § 6-5-101, Ala.Code 1975 (cause of action of misrepresentation requires that misrepresentation be “acted on by the opposite party”); § 6-5-103, Ala.Code 1975 (cause of action of deceit requires “willful representation ... upon which [injured party] ... act[ed] to his injury”). And, as Winn-Dixie points out, the fact that the legislature chose to include in its statutory scheme certain elements that the employer must prove to claim the misrepresentation defense implies that the legislature intended to exclude any additional elements. See Jefferson Cnty. v. Alabama Criminal Justice Info. Ctr. Comm’n, 620 So.2d 651, 658 (Ala.1993) (“Under the principle of expres-sio unius est exclusio alterius, a rule of statutory construction, the express inclusion of requirements in the law implies an intention to exclude other requirements not so included.”). Given the foregoing, we see no reason to add to what the legislature has created by engrafting a reliance element onto § 25-5-51.

Because § 25-5-51 does not require an employer to prove that it relied to its detriment on an employee’s misrepresentations to assert the misrepresentation defense contained therein, Cascaden’s contention that Winn-Dixie did not rely on his misrepresentations when it hired him does not provide a basis on which to reverse the trial court’s summary judgment.

Cascaden next argues that Winn-Dixie cannot assert the misrepresentation defense contained in § 25-5-51 because Winn-Dixie did not utilize boldface type when printing the warning required by that section. Cascaden did not make this argument to the trial court. In fact, Cascaden specifically stated in his brief to the trial court that he “does not dispute that in the course of entering into an employment relationship with Winn-Dixie ... [he] was provided with a written warning as set forth in § 25-5-51.” This court will not address arguments made for the first time on appeal. - See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

Based on the foregoing, we conclude that Cascaden has failed to demonstrate that the trial court committed error when it entered a summary judgment in favor of Winn Dixie. As a result, that judgment is due to be affirmed.

AFFIRMED.

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


author: MAIN, Justice. MURDOCK, Justice

text:
    Ex parte Scott A. CASCADEN. (In re Scott A. Cascaden v. Winn-Dixie Montgomery, LLC).
    1101367.
    Supreme Court of Alabama.
    Oct. 7, 2011.
    Jay A. York of York & Pendleton, Mobile, for petitioner.
    Submitted on petitioner’s brief only.
   MAIN, Justice.

WRIT DENIED. NO OPINION.

MALONE, C.J., and WOODALL and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in denying the petition for the writ of certiorari in this case. I find no probability of merit in the assertion by the petitioner, Scott A. Cascaden, that he made a sufficient showing to the trial court that Winn-Dixie Montgomery, LLC, as an entity, had knowledge at the time of its most recent offer of employment to Casca-den that Cascaden previously had injured his back. See Rule 39(f), Ala. R.App. P.