author: THOMAS, Judge.

text:
    Herman LETT, William Montgomery, Dorothy Jones, and Lenora Brackens v. Jack B. WEAVER, J. Milton Coxwell, and Tonja Carter.
    2090236.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Rehearing Denied Sept. 17, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1091795.

      Leston C. Stallworth, Jr., of The Stall-worth Law Firm, LLC, Monroeville, for appellants.
    Jack B. Weaver of Weaver & King, Monroeville, as administrator of the estate of Earl Henry Lett, deceased; Tonja B. Carter of Barnett, Bugg, Lee & Carter, Monroeville, guardian ad litem for Joseph D. Lett; and J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville.
   THOMAS, Judge.

Herman Lett (“Lett”), William Montgomery, Dorothy Jones, and Lenora Brackens (hereinafter sometimes collectively referred to as “the contestants”) appeal from a judgment of the Monroe Circuit Court, affirming the judgment of final settlement of the estate of Earl Henry Lett (“the decedent”) entered by the Monroe Probate Court.

In February 2008, the probate court issued letters of administration to Lett, appointing him as the administrator of the decedent’s estate. In September 2008, Lett petitioned the probate court for a final settlement of the estate. The probate court set Lett’s petition for a hearing on October 22, 2008, and notified all 22 heirs of the estate of the date of the hearing. At the October 22, 2008, hearing, the probate court appointed Tonja Carter as the guardian ad litem for Joseph D. Lett, an heir whom the probate court had declared incompetent, and continued the case for a further hearing on October 30, 2008. Lett did not appear at the October 30, 2008, hearing; consequently, the probate court continued the case, setting a new hearing date of November 21, 2008.

On November 4, 2008, Lett filed a revised petition for a final settlement of the estate and filed his resignation as the administrator of the estate. Lett failed to appear at the November 21, 2008, hearing, at which the probate court accepted Lett’s resignation as the administrator of the estate and continued the case, setting a new hearing date of December 22, 2008.

The probate court held a hearing on December 22, 2008, on the petition for a final settlement of the estate, and, on January 14, 2009, it entered a judgment of final settlement. The probate court subsequently entered an amended final-settlement judgment on February 18, 2009. On February 27, 2009, and again on March 2, 2009, the contestants filed motions to set aside the probate court’s judgment of final settlement, alleging that they did not receive proper notice of the December 22, 2008, hearing. The probate court denied both motions on March 3, 2009. The contestants then appealed to the circuit court on March 19, 2009. After holding a hearing, the circuit court entered a judgment affirming the probate court’s judgment, determining that “proper notice was either given to all interested parties or waived as to certain interested parties through them failure to attend hearings where the matter was set or continued in open court after proper notice was distributed.” The contestants subsequently appealed to this court. We transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

The probate court entered a judgment of final settlement on January 14, 2009. A judgment entered by the probate court “may be set aside or amended and the case reopened within 30 days after the rendition thereof by the judge of the court in which said [judgment] was rendered....” Ala.Code 1975, §12-13-3. Because more than 30 days had elapsed since the entry of its January 14, 2009, judgment, the probate court had no jurisdiction to enter its February 18, 2009, amended judgment. Therefore, the February 18, 2009, amended judgment is void, and the January 14, 2009, judgment is the operative judgment of the probate court.

Alabama Code 1975, § 12-13-ll(a), provides that, “[o]n motion filed within 30 days from entry of judgment, a new trial may be granted” on various grounds. In addition, “Rules 59, 59.1, and 60 of the Alabama Rules of Civil Procedure apply in probate court proceedings pursuant to § 12-13-12, Ala.Code 1975.” McGallagher v. Estate of DeGeer, 934 So.2d 391, 399 n. 2 (Ala.Civ.App.2005). A postjudgment motion filed under Rule 59, Ala. R. Civ. P., must be filed within 30 days of the entry of the judgment. See Rule 59(b) and (e). The contestants filed their motions to set aside the judgment of the probate court on February 27, 2009, and on March 2, 2009, both more than 30 days after the entry of the probate court’s January 14, 2009, judgment. Therefore, the contestants’ motions were untimely under both § 12-13-11 and Rule 59. Thus, the contestants’ motions could only be considered motions under Rule 60(b), Ala. R. Civ. P., which do not toll the time period for the filing of an appeal. See Rhodes v. Fulmer, 12 So.3d 1239, 1244 (Ala.Civ.App.2009).

The contestants appealed the judgment of the probate court to the circuit court. Alabama Code 1975, § 12-22-21, provides, in pertinent part:

“Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified.... Appeal to the circuit court in such cases shall be within the time hereinafter specified:
“(5) After a final settlement, upon any order, judgment or decree, made on such settlement, or respecting any item or matter thereof, or any previous settlement or item, or matter thereof, within 42 days thereafter.”

Thus, the contestants had 42 days from the entry of the probate court’s January 14, 2009, judgment to file thfeir notice of appeal in the circuit court. The 42d day after the entry of the probate court’s judgment was February 25, 2009. The contestants did not file their notice of appeal in the circuit court until March 19, 2009, well outside the statutorily prescribed time for filing of an appeal from the probate court’s January 14, 2009, judgment.

However, the denial of a Rule 60(b) motion is a separately appealable order. Palisades Collection, LLC v. Delaney, 29 So.3d 885, 886 (Ala.Civ.App.2009). The probate court denied the contestants’ Rule 60(b) motion on March 3, 2009, and the contestants’ notice of appeal was timely filed with respect to that judgment. Therefore, the circuit court could properly consider the contestants’ appeal insofar as it challenged the probate court’s denial of the contestants’ Rule 60(b) motion.

The contestants’ argument that they did not receive proper notice of the December 22, 2009, hearing is, in essence, an argument that the probate court’s judgment is void for lack of due process. An appeal from the denial of a Rule 60(b) motion

“presents for review only the propriety of that denial; thus, when a motion for relief, such as that filed in this case, attacks an order as being void, the controlling inquiry may be stated as follows: ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.’ Smith v. Clark, 468 So.2d 138, 141 (Ala.1985).”

Palisades Collection, 29 So.3d at 886.

The notice requirements for a hearing on a final settlement are prescribed by Ala.Code 1975, § 43-2-505, which provides:

“(a) Upon the filing of such account, vouchers, evidence, and statement, the judge of probate must appoint a day for such settlement, and must give notice of the same, by publication in some newspaper published in the county, for three successive weeks; or, if none is published in the county, by posting such notice at the courthouse and three other public places in such county, for the same length of time; but if the settlement be only an annual one, publication shall only be given by posting up notices as above provided. If the settlement is a final one, the probate judge must also give 10 days’ notice of the day set for making the settlement to every adult distributee resident in the state whose place of residence is known or can be ascertained with reasonable diligence, and to all sureties on the bond of the administrator or executor.
“(b) Such notice must state the name of the executor or administrator, the name of the deceased, the day appointed for settlement and the nature of the settlement, whether annual or final.
“(c) If the heirs or legatees are of age and waive publication in a newspaper, notice must, in such case, be given by posting the same at the courthouse door.”

It is undisputed that the probate court gave all the heirs notice of the October 22, 2008, hearing. However, there is no evidence in the record that the probate court complied with § 43-2-505 by providing the heirs notice of the December 22, 2008, final-settlement hearing.

Jack B. Weaver, J. Milton Coxwell, and Carter (“the respondents”) argue that once the probate court provided notice of the initial hearing date to all the heirs, the probate court was not required to provide notice of the subsequent hearing dates because those dates were set in open court. The respondents argue that “litigants are required to keep track of their cases, and, generally speaking, courts owe no duty to notify parties of settings or to continue cases because of a litigant’s absence.” Taylor v. Morgan, 379 So.2d 1256, 1258 (Ala.1980). In Thompson v. Odom, 279 Ala. 211, 184 So.2d 120 (1966), one of the cases relied on by the Taylor court, the Alabama Supreme Court stated that “in absence of statutory provision to the contrary, all parties litigant, once in court, either for themselves or through their attorneys must keep track of their case, know their status, and ascertain for themselves when their case will be tried.” 279 Ala. at 220, 184 So.2d at 127 (emphasis added).

In this case, the notification requirements for a final-settlement hearing are expressly stated in § 43-2-505. In Bruce’s Executrix v. Strickland’s Administrator, 47 Ala. 192 (1872), a case involving the predecessor statutes to § 43-2-505, our supreme court explained:

“This very great particularity [in former Ala.Code 1872, §§ 1805-1806, the predecessor statutes to § 43-2-505,] could not have been pointed out by the legislature, unless it was intended that it should be observed. Where the court is one of merely statutory powers, and the statute directs the thing to be done, and the mode of doing it, both must be complied with. In such a case, the court can only proceed as it is directed to proceed.”

47 Ala. at 197. “[N]either the probate judge nor the probate court can have any greater authority than that conferred by statute.” Broadfoot v. City of Florence, 253 Ala. 455, 457, 45 So.2d 311, 313 (1950). Thus, the probate court was required to provide notice of the December 22, 2009, hearing, pursuant to the requirements of § 43-2-505. Because the probate court failed to properly notify the contestants of the December 22, 2008, hearing, that court’s judgment of final settlement is void. See Bruce's Executrix, 47 Ala. at 197 (“[T]he court can not render a valid decree, unless the parties entitled to notice have been served with process, or have notice by advertisement, as prescribed by the statute, in lieu of personal service.”). Therefore, the circuit court erred in affirming the probate court’s denial of the contestants’ Rule 60(b) motion, and we reverse the judgment of that court and instruct the circuit court to enter a judgment reversing the probate court’s denial of the contestants’ Rule 60(b) motion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The respondents also argue that Lett waived the requirement for notice of the hearing because Lett’s attorney filed a letter with the probate court stating that Lett’s attorney no longer needed to be served with any additional pleadings in the case. Lett was not the only heir who did not receive notice of the final-settlement hearing. Therefore, even if we were to accept the respondents’ argument, the probate court’s order would still be void for failure to notify the other heirs.


source: Caselaw Access Project

author:
BRYAN, Judge.
     PITTMAN, Judge,

license: Public Domain

text:
    Shayla Nyree Nettles EDWARDS v. Shawn Andre EDWARDS.
    2081138.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1091591.

      Regina Eng, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

Shayla Nyree Nettles Edwards (“the mother”) appeals from a judgment of the Montgomery Circuit Court that divorced her from Shawn Andre Edwards (“the father”) insofar as it awarded the father custody of the parties’ child. We affirm.

The father filed a complaint for a divorce from the mother on February 17, 2009. In his complaint, the father alleged that he and the mother were married on or about June 18, 1999, and that they had separated on or about September 12, 2007. The father further alleged that one child, a boy born in July 1999 (“the child”), had been born during the parties’ marriage, that the mother was exercising custody of the child, and that the mother had denied him reasonable visitation with the child. The father also stated that the parties had no joint property or debts to divide. The father requested that the trial court award the parties joint legal custody of the child and award him reasonable visitation with the child. On April 23, 2009, the mother, through counsel, answered the father’s complaint for a divorce.

The trial court conducted an ore tenus hearing on August 3, 2009. The father, the father’s attorney, and the mother’s attorney were present for the hearing, but the mother was not. The mother’s attorney stated on the record that she had not been in contact with the mother since the mother hired her, but, she stated, she had sent the mother letters and had tried unsuccessfully to contact the mother by telephone. The father testified that the mother had committed adultery during the parties’ marriage, that he did not approve of the mother’s actions, and that the mother had given birth to a daughter as a result of her adulterous affair. The father testified that the mother was living with her paramour, their daughter, and the child, who was approximately 10 years old at the time of the hearing. The father stated that the mother’s paramour was a registered sex offender.

The father acknowledged that he had asked for only joint legal custody of the child and visitation with the child in his complaint for a divorce, but he requested physical custody of the child during his testimony at the ore tenus proceeding. After the trial-court judge clarified that the father was seeking physical custody of the child, the father indicated that he could provide a more stable environment for the child and that he was concerned about the child’s living arrangements while in the mother’s custody. On cross-examination by the mother’s attorney, the father admitted that he had known that the mother’s paramour was a registered sex offender for approximately two years before the hearing. Upon questioning from the trial-court judge, the father stated that he lived in a three-bedroom home with his grandparents, that he provided health insurance for the child, and that his work hours permitted him to take the child to and from school.

On August 4, 2009, the trial court entered a judgment divorcing the parties. The father was awarded sole legal and physical custody of the child. The mother was awarded visitation with the child, with the condition that the child was not to be in the presence of the mother’s paramour. The mother, acting pro se, filed a post-judgment motion in accordance with Rule 59, Ala. R. Civ. P. The mother alleged that she had not been notified of the “custody hearing,” that the father had misled the trial court about his work hours and his current residence, and that the father had not provided support for the child after October 1, 2007. On August 26, 2009, the trial court denied the mother’s postjudgment motion, and the mother timely appealed.

On appeal, the mother argues that her due-process rights were violated when the trial court awarded the father sole custody of the child because she was not given notice or an opportunity to be heard on the issue of the child’s custody. The mother argues that she did not receive notice of the time and date of the hearing and that she did not receive adequate notice that the father was requesting physical custody of the child. The mother, citing Ex parte Harris, 506 So.2d 1003, 1005 (Ala.Civ.App.1987), argues that a final judgment concerning custody or visitation rights may be made only after due process is afforded to the parents. See also Ex parte White, 245 Ala. 212, 215, 16 So.2d 500, 503 (1944) (“Any final order as to the child’s custody could only be made after notice.”).

Regarding the mother’s argument that she did not receive proper notice of the time and date of the hearing, the prevailing rule in Alabama is that “a litigant, usually through an attorney, has [the] responsibility for keeping track of his case and knowing its status.” D. & J. Mineral & Mining, Inc. v. Wilson, 456 So.2d 1099, 1100 (Ala.Civ.App.1984). It is also well established that notice of a trial date given to a party’s attorney is generally accepted to constitute notice of the trial date to the party. See Shirley v. McDonald, 220 Ala. 50, 53, 124 So. 104, 106 (1929) (“[C]ounsel’s knowledge ... of the date of trial, must be imputed to [the] defendant as a matter of law.... ”); Anderson v. Anderson, 250 Ala. 427, 430, 34 So.2d 585, 587 (1948) (when the plaintiffs attorney had notice of all the proceedings, our supreme court concluded that the plaintiff also had notice of the proceedings); and Ex parte Cox, 253 Ala. 647, 650, 46 So.2d 417, 420 (1950) (“It is thoroughly well established that [the] defendant’s ignorance of the date of trial or of the order of the court as to the definite time for disposing of the case is not a proper ground for a new trial, particularly where [the] defendant’s attorney of record was informed by the court or clerk as to the time set for its disposition.”). See also Sanders v. Flournoy, 640 So.2d 933, 939 (Ala.1994) (“Knowledge of the attorney will be imputed to the client if the knowledge comes to the attorney while engaged in a service for the client after the attorney-client relationship has commenced”). It was undisputed that the mother’s attorney had received notice of the time and date of the hearing and that the mother’s attorney was present for that hearing. Applying those general principles of law to the present case, we cannot conclude that the mother did not receive adequate notice of the time and date of the hearing.

The mother also argues that she did not receive adequate notice of the father’s request for physical custody of the child because the father sought only joint legal custody and visitation in his complaint for a divorce and he did not request physical custody of the child until the hearing was in progress. In support of her argument, the mother cites Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977), Taylor v. Taylor, 349 So.2d 588 (Ala.Civ.App.1977), and Anonymous v. Anonymous, 353 So.2d 515 (Ala.1977). However, we find the facts of each of those cases distinguishable from the facts of the present case.

In Taylor v. Taylor, this court found that the trial court had erred by changing custody of a child following a hearing that was initially conducted on a petition for a rule nisi. 349 So.2d at 590. However, in that case, this court noted that the mother’s attorney had specifically objected to the father’s oral motion to modify custody. Id. In the present case, there is no such objection to the father’s request for physical custody during the ore tenus hearing. In Anonymous v. Anonymous, our supreme court reversed a custody determination that awarded custody of a child to the child’s paternal grandparents, who were not parties to the underlying custody dispute between the child’s parents, because the parents were not given adequate notice that an award of custody to the paternal grandparents was being considered. 353 So.2d at 518-19. Anonymous is also distinguishable from the present case because custody in this case was not awarded to a nonparty. Finally, the mother cites Thorne v. Thorne, which our supreme court relied on in Anonymous, supra. In Thorne, the father, the noncustodial parent, petitioned the trial court to issue an order “insuring” his visitation rights; during the hearing on his petition, the trial court asked the father’s wife if she and the father could care for the children and if she thought that the best interests of the children would be served by removing the children from the mother’s custody. The trial court then modified custody of the parties’ children from the mother to the father. This court held that those two questions did not provide adequate notice to the mother that the issue of custody was going to be decided. Again, the present case is distinguishable because the father in this case unequivocally stated on the record during his testimony that he was requesting physical custody of the child; the father’s request left no question about what issues were before the court at the conclusion of the hearing.

We find the fact that the mother’s attorney did not state an objection on the record to the father’s specific request for physical custody dispositive of the mother’s argument that she did not receive adequate notice of the father’s request for physical custody of the child. Despite the fact that the father did not request physical custody of the child in his pleadings before the trial court, the record on appeal clearly reflects that the father stated his desire to be awarded physical custody of the parties’ child during the hearing. Thus, the burden fell to the mother, through her attorney, to object to the father’s request for physical custody when he provided notice of his desire to be awarded physical custody of the child. The record reflects that no objection to the father’s request was made and that the mother’s attorney, once aware of the father’s request for physical custody, proceeded to cross-examine the father. Thus, it is undisputed that the mother’s attorney was aware, i.e., given notice, of the fact that the father was seeking physical custody of the child. Accordingly, because the mother failed to object to the father’s request for physical custody, we must assume that the issue was tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); and A.L. v. S.J., 827 So.2d 828, 833 (Ala.Civ.App.2002) (in a custody-modification proceeding between the mother and the father, in which the paternal grandmother sought custody of the child “through her testimony” and neither the father nor the mother objected to the paternal grandmother’s presentation of evidence, this court concluded that the paternal grandmother’s request for custody was tried by the implied consent of the parties pursuant to Rule 15(b)). See also Johnson v. Johnson, 24 So.3d 463, 467-68 (Ala.Civ.App.2009) (quoting SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885, 903 (Ala.Civ.App.2005), quoting in turn Ex parte Aaron, 275 Ala. 377, 379, 155 So.2d 334, 335 (1963) (Merrill, J., concurring specially)) (“ ‘ “[A]n attorney is the duly authorized agent of his client and his acts are those of his client. The client is, therefore, bound by the acts of his attorney in the course of legal proceedings in the absence of fraud or collusion, and knowledge of the attorney is imputed to the client, notwithstanding the client had no actual knowledge or notice of the facts and circumstances.” ’ ”).

This conclusion does not change the position expressed by this court in Sumlin v. Sumlin, 931 So.2d 40 (Ala.Civ.App.2005), that in cases involving custody of a minor child every attempt should be made to reach the merits of the case before a final custody determination is made. Sumlin involved the entry of a default judgment of divorce that awarded custody of the parties’ minor child to the husband after the wife and her attorney had failed to appear at the final hearing. The present case is distinguishable from Sumlin in that no default judgment was entered in this case because both parties appeared, whether in person or through counsel. Furthermore, in the present case, the mother’s attorney was given the opportunity to cross-examine the father after he requested physical custody of the child. Thus, unlike in Sum-lin, custody of the child was not awarded to the father following a summary proceeding in which the mother was not given notice or the opportunity to be heard. The record in this case reflects that notice of the hearing was imputed to the mother through her counsel and that notice of the father’s request for physical custody was properly given at the hearing pursuant to Rule 15(b). We will not reverse the judgment of the trial court because the mother failed to take advantage of the notice and the opportunity to be heard that was provided to her.

In her brief on appeal, the mother concedes that the father introduced evidence sufficient to support an award of custody to the father. Accordingly, because the mother has failed to demonstrate that her due-process rights were violated by the entry of the divorce judgment, the judgment of the trial court is due to be affirmed.

AFFIRMED.

THOMAS and MOORE, JJ., concur.

PITTMAN, J., dissents, with writing, which THOMPSON, P.J., joins.

PITTMAN, Judge,

dissenting.

I respectfully dissent. The record reflects that the mother’s attorney had not communicated with the mother since the day she had been hired. At trial, the mother’s attorney made no objection to the father’s request for physical custody of the parties’ child and asked only a few questions of the father. Although, as the main opinion notes, it is undisputed that the mother’s attorney was aware of the fact that the father was seeking physical custody of the child during trial, I do not consider that notice to be sufficient as to the mother herself to support the main opinion’s invocation of Rule 15(b), Ala. R. Civ. P., as a basis for affirmance.

Based upon the situation presented in this record, the judgment entered in this action is analogous to a default judgment. This court has stated that, “especially in the divorce context, a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody, alimony, and division of property will be summarily resolved.” Evans v. Evans, 441 So.2d 948, 950 (Ala.Civ.App.1983). “Indeed, we can envision no species of case in which the ‘strong bias’ in favor of reaching the merits, see Kirtland [v. Fort Morgan Auth. Sewer Serv., Inc.], 524 So.2d [600,] 605 [ (Ala.1988) ], could be any stronger than in a case such as this involving custody of a minor child.” Sumlin v. Sumlin, 931 So.2d 40, 44 (Ala.Civ.App.2005); see also Buster v. Buster, 946 So.2d 474 (Ala.Civ.App.2006). The entry of a default judgment resulting from the absence of one of the parties at trial has also been deemed reversible error for similar reasons. See, e.g., Hutchinson v. Hutchinson, 647 So.2d 786 (Ala.Civ.App.1994) (reversing default judgment that, based upon the absence of the father, awarded custody of children to mother and ordered father to pay child support); and K.S.C.C. v. W.H.C., 857 So.2d 830 (Ala.Civ.App.2002) (reversing a default judgment that, based upon the absence of the mother, summarily transferred custody of parties’ children from mother to father). See also Weaver v. Weaver, 747 So.2d 909 (Ala.Civ.App.1999), and DeQuesada v. DeQuesada, 698 So.2d 1096, 1099 (Ala.Civ.App.1996) (reversals of default judgments that had been entered in the absence of parents at hearings to determine whether child-support or alimony arrearages existed and in what amounts).

In this case, the trial court’s error in entering a final divorce judgment awarding custody of the parties’ child to the father without notice to the mother was exacerbated by its summary denial of the mother’s postjudgment motion. If the trial court had conducted an evidentiary hearing after the filing of the post-judgment motion, the decision to award legal and physical custody to the father might well have been proper if the evidence at that hearing had supported the father’s assertions regarding the mother’s paramour and the safety of the parties’ child. The trial court’s failure to grant the mother “ ‘an adequate remedy’ ” and an opportunity to be heard on the custody issue by ‘“a proper tribunal,’ ” see Ex parte White, 245 Ala. 212, 215, 16 So.2d 500, 503 (1944) (quoting 30 Am.Jur. 604, § 17), in my view, constitutes reversible error. Therefore, I must respectfully dissent.

THOMPSON, P.J., concurs.

      . This case was previously assigned to another judge of this court. This case was reassigned to Judge Bryan on July 8, 2010.

      . This case should not be analyzed as a default-judgment case, as the dissent argues. There was not a default judgment enteredin this case; the trial court conducted a hearing, counsel for the mother participated in that hearing by cross-examining the father, and a judgment that was supported by the evidence presented by the father was entered. In such cases, we must affirm. See D. & J. Mineral & Mining, Inc. v. Wilson, 456 So.2d at 1101 (affirming a judgment when counsel for absent party participated in final hearing by cross-examining the party present at the hearing and the judgment entered was supported by the evidence presented).


text:
    Honorata LLOYD and Calvin Lloyd v. Perm COOK and James Cook d/b/a PJ’s Floral & Crafts.
    2090638.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Rehearing Denied Sept. 24, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1100040.
    Charles J. Kettler, Jr., of Kettler & Kettler, Luverne, for appellants.
    Julian L. McPhillips, Jr., and Kenneth Shinbaum of McPhillips Shinbaum, LLP, Montgomery, for appellees.
   THOMAS, Judge.

On May 12, 2008, Honorata Lloyd and Calvin Lloyd (“the Lloyds”) sued Perm Cook and James Cook d/b/a PJ’s Floral & Crafts (“the Cooks”), alleging that the Cooks had intentionally interfered with the Lloyds’ business relationship with Willie’s World Flea Market. The Cooks moved to dismiss the complaint and also asserted counterclaims against the Lloyds, seeking damages for abuse of process and sanctions pursuant to the Alabama Litigation Accountability Act, codified at Ala.Code 1975, § 12-19-270 et seq. The Cooks moved for a summary judgment on the Lloyds’ intentional-interference claim, which the trial court granted on June 15, 2009. The Lloyds then filed a motion seeking reconsideration of the partial summary judgment, which the trial court denied on July 7, 2009.

On September 11, 2009, the Lloyds moved for a summary judgment on the Cooks’ counterclaims. On October 6, 2009, the parties filed a joint stipulation dismissing the Cooks’ counterclaims with prejudice. The trial court purported to “grant” the joint stipulation on October 7, 2009.

On October 14, 2009, the Lloyds filed a “Motion for Rule 54 Final Judgment.” In that motion, the Lloyds requested that the trial court expressly direct the entry of a final judgment. In addition, the motion alleged that the June 15, 2009, partial summary judgment remained subject to revision at any time before the entry of a final judgment and prayed for “a review and revision of said order at this time.”

On November 5, 2009, the trial court entered an order indicating its confusion regarding the Lloyds’ request for a Rule 54(b), Ala. R. Civ. P., certification. In that order, the trial court explained that the partial summary judgment entered on June 15, 2009, had disposed of the Lloyds’ claims and that the Cooks’ claims had been dismissed on motion of the parties on October 7, 2009. The trial court required the Lloyds to specify the claims that they contended remained to be adjudicated.

The Lloyds did not respond to the trial court’s order until January 21, 2010. In their response, the Lloyds appear to argue that the remaining “claim” was actually a request for a hearing on the motion seeking reconsideration of the June 15, 2009, partial summary judgment, which motion had been denied without a hearing on July 7, 2009. After receiving the Lloyds’ response, the trial court entered an order on February 4, 2010, in which it recounted the procedural history of the case, indicated that it believed that the dismissal of the Cooks’ counterclaims on October 7, 2009, rendered the June 15, 2009, partial summary judgment final, questioned its jurisdiction to enter an order on the October 14, 2009, motion seeking a Rule 54(b) certification, and denied that motion. The Lloyds appealed that order to the Alabama Supreme Court on March 17, 2010; our supreme court transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6).

The Cooks have filed a motion to dismiss the appeal. The Lloyds have responded. Based on the arguments made by the Cooks in their motion and our examination of the procedural history of this case, we dismiss the appeal.

The June 15, 2009, partial summary judgment disposed of the Lloyds’ claim against the Cooks. That order, however, was not a final judgment because the counterclaims asserted against the Lloyds by the Cooks remained pending. See Rule 54(b) (stating that an order adjudicating fewer than all the claims pending “is subject to revision at any time before the entry of a judgment adjudicating all the claims”); see also Simmons Mach. Co. v. M & M Brokerage, Inc., 409 So.2d 743, 759 (Ala.1981) (stating that a partial summary judgment is an interlocutory order and as such is “subject to revision at any time before the entry of judgment adjudicating all the parties’ claims, rights, and liabilities”); Lanier v. Surrett, 772 So.2d 1187, 1188 (Ala.Civ.App.2000) (“An interlocutory order is subject to revision at any time before the court entered a final judgment that disposes of all the issues”). The Lloyds filed a motion seeking reconsideration of the partial summary judgment; that motion was not technically a post-judgment motion, because the partial summary judgment was an interlocutory order and not a final judgment. See Lanier, 772 So.2d at 1188. The trial court retained jurisdiction to reconsider the partial summary judgment at the request of either side or on its own initiative until that judgment was made final either by use of a Rule 54(b) certification or by the entry of a judgment disposing of all the claims and all the parties in the action. See Rule 54(b); Lanier, 772 So.2d at 1188. The trial court entertained the Lloyds’ motion and denied it on July 7, 2009.

On October 6, 2009, when the parties filed a joint stipulation of dismissal with prejudice of the Cooks’ counterclaims, the June 15, 2009, partial summary judgment became a final judgment. Although the trial court purported to grant what it characterized as a motion for a Rule 12(b), Ala. R. Civ. P., dismissal, the parties had not requested a Rule 12(b) dismissal; instead, they had filed a joint stipulation of dismissal pursuant to Rule 41(a)(1)(h), Ala. R. Civ. P., which was effective upon its filing and did not require any action by the trial court. See Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 700 (Ala.2008) (explaining that a joint stipulation of dismissal filed pursuant to Rule 41(a)(1)(h) acts to terminate an action at the time of its filing and that no action by the trial court is needed to effectuate it). Thus, the date that the partial summary judgment became final, and, thus, the effective date for calculating the time for filing any post-judgment motions or the time within which to have taken an appeal, is October 6, 2009.

As noted above, on October 14, 2009, the Lloyds filed a motion entitled “Motion for Rule 54 Final Judgment.” In that motion, the Lloyds alleged that the trial court had “not entered an order pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure providing for the entry of a final judgment,” stated that “it is now proper for the Court to direct the entry of a final judgment as to all claims upon an express determination that there is no just reason for delay,” and requesting that the trial court “make an express direction for the entry of judgment.” In its last paragraph, the motion further alleged that the June 15, 2009, partial summary judgment “remains subject to revision before the entry of a final judgment, and [the Lloyds] respectfully pray for a review and revision of said order at this time.”

Although we might typically need to determine whether the Lloyds’ October 14, 2009, motion was a postjudgment motion made pursuant to Rule 50, Rule 52, Rule 55, or Rule 59, Ala. R. Civ. P., which would have tolled the time for taking an appeal, see Rule 4(a)(3), Ala. RApp. P., we need not make such a determination in the present case because, regardless of whether the October 14, 2009, motion was a post-judgment motion, we would still conclude that the Lloyds’ notice of appeal was not timely filed. If we were to conclude that the October 14, 2009, motion was not a postjudgment motion that tolled the time for taking an appeal, the time for filing an appeal expired on November 17, 2009, which was 42 days after October 6, 2009. See Rule 4(a)(1) (prescribing the 42-day period within which to take an appeal). If we were to conclude that the October 14, 2009, motion was a postjudgment motion and that it tolled the time for taking an appeal, that motion would have been denied by operation of law on January 12, 2010, see Rule 59.1, Ala. R. Civ. P., and the time for taking an appeal would have expired on February 23, 2010, which was 42 days after the motion would have been denied by operation of law. See Rule 4(a)(1) and (3), Ala. R.App. P. (requiring that a notice of appeal be filed within 42 days of the denial of a postjudgment motion). In either event, the Lloyds’ notice of appeal, which was filed on March 17, 2010, was filed too late.

The failure to file a timely notice of appeal deprives this court of jurisdiction, and we must therefore dismiss the Lloyds’ appeal. Byrd v. Petelinski, 757 So.2d 400, 402 (Ala.2000); see also Schiffman v. City of Irondale, 669 So.2d 136, 138 (Ala.1995) (“The time for filing a notice of appeal is jurisdictional.”). Thus, the Cooks’ motion to dismiss the appeal is granted.

APPEAL DISMISSED.

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

      . The Lloyds appealed the partial-summary-judgment order to the Alabama Supreme Court on July 16, 2009; however, that appeal was dismissed on the Lloyds’ motion.


text:
    BUILDERS SUPPLY AND SALVAGE COMPANY, INC. v. REGIONS BANK Regions Bank v. Builders Supply and Salvage Company, Inc.
    2090467.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1091728.

      Charles H. Sims III, Selma, for appellant/cross-appellee Builders Supply and Salvage Company, Inc.
    Craig A. Alexander of Rumberger, Kirk & Caldwell, P.C., Birmingham, for appel-lee/cross-appellant Regions Bank.
   On Application for Rehearing

THOMAS, Judge.

The opinion of July 9, 2010, is withdrawn, and the following is substituted therefor.

This appeal arises from a dispute between Builders Supply and Salvage Company, Inc. (“BSC”), which supplied materials for the construction of a house, and Regions Bank, which provided financing for the construction of the house.

Facts and Procedural History

The pertinent facts are as follows. Jerome Griffin contracted with Daryl Cosby to construct a house in Dallas County. Griffin paid Cosby with the proceeds from a loan he had obtained from Regions Bank. Cosby purchased materials to be used in the construction of the house from BSC; Cosby purchased the materials from BSC on credit. Before construction of the house was complete, Cosby quit. Cosby paid for some, but not all, of the materials, including brick and mortar, that he had purchased on credit from BSC. BSC then began the process of retrieving unused brick and mortar that Cosby had purchased from BSC from the construction site. BSC notified Griffin of its intention to retrieve the unused brick and mortar, which Griffin was planning to use on the house. Subsequently, Rebekah Herman, a loan officer for Regions Bank, telephoned BSC and, according to BSC, “asked [BSC] to please not pick up the material, that this would be worked out, and [BSC] would be paid.” (Emphasis added.) After that conversation, BSC suspended its efforts to retrieve the brick and mortar.

Cosby owed $16,994.42 for the materials he had purchased on credit from BSC. Seeking to collect that debt, BSC sued Cosby, Griffin, and Regions Bank in the Dallas Circuit Court. BSC asserted claims against all three defendants, seeking the amount of the outstanding debt owed for the materials sold and delivered on credit and the imposition of a material-man’s lien on the house. As grounds for relief against Regions Bank, BSC asserted that Regions Bank was estopped to deny that it was obligated to repay the debt, that Regions Bank had been unjustly enriched, that Regions Bank had breached an agreement to pay Cosby’s debt, and that Regions Bank had committed fraud by representing that it would pay the full amount of the debt.

The trial court entered a default judgment against Cosby for the full amount of his debt to BSC. After a nonjury trial, the trial court dismissed BSC’s claims against Griffin, entered a judgment against Regions Bank on BSC’s fraud claim, and awarded BSC $8,750 in damages as compensation for the debt owed for the unused brick that remained at the construction site when Cosby quit. In its judgment, the trial court reasoned that BSC had relied on the statements made by Herman, as a representative of Regions Bank, in leaving the brick and mortar on the construction site. The trial court determined that the brick was valued at $5,000 but that BSC would have owed its brick supplier a restocking fee of 25% for retrieving the brick. Thus, the judgment awarded BSC the value of the brick less 25%, i.e., $8,750. The trial court found in favor of Regions Bank on BSC’s estoppel, unjust-enrichment, and breach-of-contract claims, specifically holding that the Statute of Frauds, § 8-9-2, Ala.Code 1975, “prevents recovery by [BSC] of any ... sums” other than the damages awarded on its fraud claim.

BSC filed a motion to alter or amend the judgment, in which it argued, among other things, that the damages should be increased by $1,464.75 to account for the value of the mortar. The trial court granted that element of BSC’s motion and entered an amended judgment, increasing the judgment against Regions Bank to $5,214.75. BSC subsequently appealed to this court, and Regions Bank cross-appealed.

Analysis

BSC advances four arguments on appeal: that Regions Bank was unjustly enriched because the construction on the house was completed using materials that BSC had supplied to Cosby on credit; that Herman’s statements to BSC regarding payment for materials should be enforced against Regions Bank under an estoppel theory; that the alleged promises made by Herman and relied upon by BSC demonstrate that there was a contract between BSC and Regions Bank, pursuant to which, BSC asserts, Regions Bank agreed to pay Cosby’s debt for materials supplied on credit; and that Regions Bank, through Herman, fraudulently misrepresented its intention to pay BSC for the materials that BSC had supplied to Cosby on credit.

I. Estoppel and Unjust Enrichment

First, we reject BSC’s arguments on appeal concerning estoppel and unjust enrichment. BSC advanced each of those arguments at the end of its appellate brief with one conclusory sentence and one citation. Therefore, BSC has not complied with the requirements of Rule 28(a)(10), Ala. R.App.P.

“Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Because BSC has waived those arguments on appeal, we will not decide whether Regions Bank owes BSC the entire indebtedness under the theory of unjust enrichment or the theory of estoppel. However, because Regions Bank asserts on cross-appeal that the trial court’s judgment of $5,214.75 was improper, we will address whether the trial court’s judgment could be affirmed on either of those grounds.

“ ‘ “One is unjustly enriched if his retention of a benefit would be unjust.” ’ Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004) (quoting Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997)). The retention of a benefit is unjust if:
“ ‘ “(1) the donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misreliance by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.” ’
“Welch, 891 So.2d at 843 (quoting Jordan, 705 So.2d at 458). The success or failure of an unjust-enrichment claim depends on the particular facts and circumstances of each case. [Avis Rent A Car Sys., Inc. v.] Heilman, [876 So.2d 1111 (Ala.2003) ].”

Mantiply v. Mantiply, 951 So.2d 638, 654-55 (Ala.2006)

Regions Bank argues on cross-appeal that the trial court could not have based its judgment in favor of BSC on unjust enrichment because there was no evidence to establish the value of the alleged benefit to Regions Bank. BSC argues that it provided a benefit to Regions Bank after relying on the alleged promise made by Regions Bank. However, it is unclear whether Regions Bank retained the bricks and mortar and what benefit it could have received even if it had retained them. Regions Bank was the lender to the property owner, Griffin. BSC was a creditor to the contractor, Cosby. At the time of the alleged promise, Cosby or Griffin owned the bricks and mortar. No evidence was presented indicating that Regions Bank retained and made use of the bricks and mortar or that the value of Griffin’s mortgage increased as a result of retaining the bricks and mortar. Therefore, the trial court’s judgment could not have been supported by a conclusion that Regions Bank was unjustly enriched.

In addition, the theory of estoppel has no application to the facts of this case.

“A more detailed statement of the elements generally required to support an estoppel is given in 3 Pomeroy, Equity Jurisprudence § 805 (5th ed.1941):
. 1. There must be conduct— acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon.... 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.... ”’

Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976) (first and last emphasis added). In Mazer, a group of residents that opposed annexation into a municipality relied on a nonbinding resolution, misrepresented as being binding on the residents, in withdrawing their opposition to the annexation. Although the property developers may not have known that the resolution was not binding, the property developers proposed the resolution and purported to represent the city’s planning commission. Mazer, 340 So.2d at 773. In this case, BSC failed to show that Regions Bank purported to represent Cosby. Regions Bank did not have any business relationship with Cosby; Regions Bank was the lender to Griffin. BSC also failed to show that Regions Bank knew that Cosby was not going to pay his debt. Lastly, BSC admitted that it sold the bricks and mortar to Cosby without retaining a security interest in the materials. BSC did not have authority to confiscate the bricks and mortar. Thus, BSC could not have been placed in a worse position by leaving the unused bricks and mortar on Griffin’s property. The judgment of the trial court, therefore, cannot be based on the theory of estoppel.

II. Breach of Contract

BSC claims that the alleged promises made by Herman support a determination that Regions Bank entered into an original agreement, not a collateral agreement, to answer for the debt of another — namely, Cosby — and that such an agreement is not barred by the Statute of Frauds. Regions Bank argues that any agreement, if one existed, is barred by the Statute of Frauds.

The trial court found that the Statute of Frauds barred any claims premised on an alleged promise to pay for all Cosby’s debt. The issue whether Herman’s statements constituted a promise by Regions Bank to pay Cosby’s debt would be reviewed under the ore tenus standard. “ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ ” Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007) (quoting Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007), quoting in turn other cases). However, the issue whether any oral promise that Regions Bank may have made is barred by the Statute of Frauds is reviewed de novo, because the ore tenus rule “ ‘does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ ” Retail Developers, 985 So.2d at 929 (quoting Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005)).

Generally, the Statute of Frauds voids “[ejvery special promise to answer for the debt, default or miscarriage of another” unless that agreement is “in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing.” § 8 — 9—2(3). However, some promises to answer for the debt of another may be outside the Statute of Frauds:

“[I]n order to determine if an agreement is within § 8-9-2(3) or not it must first be determined if an agreement is ‘collateral’ or ‘original’ in nature.
“ ‘ “Collateral” agreements are those in which the object of the promise is to become the guarantor of another’s debt; these are within the statute and must be in writing to be enforceable.’ Fendley [v. Dozier Hardware Co.], 449 So.2d [1236] at 1238 [ (Ala.1984) ] (quoting Herrington [v. Central Soya Co.], 420 So.2d [1] at 3 [ (Ala.1982) ]). ‘ “Original” agreements are those in which the effect of the promise is to pay the debt of another, but the object of the promise is to promote some purpose of the prom-isor.’ Fendley, 449 So.2d at 1238 (quoting Herrington, 420 So.2d at 3).

Dykes Rest. Supply, Inc. v. Grimes, 481 So.2d 1149, 1151 (Ala.Civ.App.1985). Furthermore, “[a] promise to pay the debt of another which is based upon a new and valuable consideration which is beneficial to the promisor is not within the statute.” Phillips Brokerage v. Professional Pers. Consultants, 517 So.2d 1, 2 (Ala.Civ.App.1987).

BSC argues that Regions Bank made an original agreement to answer for Cosby’s debt that is outside the Statute of Frauds. BSC bases its argument on alleged statements by Herman that the “cosmetic” value of the house would be diminished if the unused bricks and mortar were retrieved from the construction site. BSC contends that because it agreed to leave the bricks and mortar on the construction site in order to satisfy Regions Bank’s desire for a cosmetically appealing house, its forbearance created a new and valuable consideration that was beneficial to Regions Bank. Therefore, according to BSC, Regions Bank and BSC had an original agreement that falls outside the Statute of Frauds.

However, there is no evidence in the record to support BSC’s assertion that it had an original agreement with Regions Bank. First, Charles Stough of BSC testified that “[Herman] might not have mentioned about the cosmetic” during the telephone call. Second, the trial court indicated that it reached the opposite conclusion by stating that “[t]he Statute of Frauds prevents recovery by [BSC] of any ... sums” other than the damages awarded on BSC’s fraud claim. Thus, the trial court must have found, after hearing ore tenus testimony, that Regions Bank made a collateral, rather than an original, agreement and that, therefore, the agreement was within the Statute of Frauds. Because the trial court’s determination on this issue is supported by the evidence, the trial court’s determination that any agreement was collateral in nature is due to be affirmed.

Because the alleged agreement was collateral in nature, BSC’s breach-of-contract claim is precluded by the Statute of Frauds. Although we are not persuaded that Herman’s statement “that this would be worked out” constituted a promise, we need not decide that question to resolve this case. Because the alleged agreement to answer for the debt of Cosby was not in writing, it would be void under the Statute of Frauds. See Parker v. Williams, 977 So.2d 476, 480 (Ala.2007). Cosby entered into an agreement with BSC to obtain materials for the house that Griffin had hired him to build. Regions Bank extended Griffin a loan, the proceeds of which were used to pay Cosby. Thus, Cosby, not Regions Bank, owed a debt to BSC. Furthermore, Regions Bank cannot be said to be under a contractual duty to pay BSC either for the full debt or for the value of the unused brick and mortar that remained on the construction site after Cosby quit. Either alleged promise represented a promise by Regions Bank to answer for the debt of Cosby. Neither alleged promise was in writing. Therefore, an agreement based on either alleged promise is barred by the Statute of Frauds. Parker, 977 So.2d at 480.

III. Fraud

Regions Bank argues in its cross-appeal that the statements made by Herman during her telephone call to BSC did not constitute a promise to pay Cosby’s debt in full or in part and that the trial court erred in awarding BSC the value of the bricks and mortar. Regions Bank further argues that any agreement, if one existed, is barred by the Statute of Frauds. BSC claims that the alleged promises made during the telephone call constitute an original agreement and not a collateral agreement to answer for the debt of another; thus, BSC argues, the agreement is not barred by the Statute of Frauds.

The trial court entered a judgment against Regions Bank on BSC’s fraud claim because “[BSC] relied on [Regions Bank’s] representation and did not pick up [the bricks and mortar].” Regions Bank points out that the fraud claim could only be a promissory-fraud claim, because an essential element of fraudulent misrepresentation is that it must concern a “material existing fact.” Smith v. J.H. Berry Realty Co., 528 So.2d 314, 316 (Ala.1988). Instead, Herman’s statements on behalf of Regions Bank constitute a promise to perform an act in the future. See Porter v. Hook, 554 So.2d 382 (Ala.1989) (reciting the elements of promissory fraud). Thus, on cross-appeal, Regions Bank correctly argues that a promise found to be barred by the Statute of Frauds cannot support an action for promissory fraud. “[A]n oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud.” Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003).

“[T]he Statute of Frauds identifies defined categories of oral promises that are especially subject to fabrication and especially unworthy of rebanee or enforcement. Therefore, for the courts, on a theory of promissory fraud, to countenance a plaintiffs claim that he has relied on such a promise and to redress that plaintiffs claim that he has suffered from the breach of such a promise, defies the policy and frustrates the efficacy of the Statute of Frauds.”

Bruce, 854 So.2d at 58.

Conclusion

Because Regions Bank’s alleged promises are void under the Statute of Frauds, Region Bank’s alleged promises cannot support a promissory-fraud claim. Therefore, the judgment of the trial court is reversed insofar as it awarded BSC the value of the unused brick and mortar at the construction site when Cosby quit. The trial court’s judgment is affirmed in all other respects, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.

APPLICATION GRANTED; OPINION OF JULY 9, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL-AFFIRMED IN PART; REVERSED IN PART; AND REMANDED; CROSS-APPEAL — REVERSED AND REMANDED.

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

THOMPSON, P.J., concurs in the result, without writing.


text:
    BILL SALTER ADVERTISING, INC., and William O. Salter v. CITY OF ATMORE and Allen Nix.
    2090639.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1100158.

      Allen W. Lindsay, Jr., of Lindsay & Andrews, P.A., Milton, Florida, for appellants.
    Thomas 0. Gaillard III of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellees.
   THOMAS, Judge.

Bill Salter Advertising, Inc. (“BSA”), erects and maintains advertising signs in several locations in Alabama, including the City of Atmore (“the city”). In 2004, when Hurricane Ivan struck the city, several of BSA’s signs were damaged. In the months following the hurricane, William O. Salter, the principal owner of BSA, and other representatives of BSA contacted city officials, including Allen Nix, the city’s building official, and Howard Shell, the city’s mayor, regarding rebuilding the damaged signs. According to Salter, the city, through Nix and Mayor Shell, refused to allow BSA to rebuild the signs. Nix and Mayor Shell relied on the city’s sign ordinance, which they interpreted as preventing off-premise signs that were more than 50% destroyed from being rebuilt.

BSA and Salter (sometimes referred to collectively as “the BSA plaintiffs”) sued the city and Nix (sometimes referred to collectively as “the city defendants”) on January 19, 2005. In the initial complaint, the BSA plaintiffs sought a judgment declaring that the city’s sign ordinance did not preclude BSA from rebuilding its signs, an injunction restraining the city from preventing BSA from rebuilding its signs, and damages. The complaint also sought a temporary restraining order, which the trial court denied on March 14, 2005. The BSA plaintiffs later amended the complaint to assert that the city defendants had intentionally interfered with the BSA plaintiffs’ business relationships.

The city defendants moved to dismiss the action in August 2005 on the ground that BSA had failed to exhaust its administrative remedies because it had not appealed the denial of the permits to rebuild the signs to the city’s Board of Adjustment (“the board”). BSA did then perfect its appeal to the board, which, on October 13, 2005, determined that, pursuant to its interpretation of the sign ordinance, BSA could rebuild its off-premise signs provided that they were built in conformity with the size limitations contained in the ordinance.

On November 17, 2006, the city defendants moved for a summary judgment. In the motion, the city defendants argued that collateral estoppel applied to resolve the BSA plaintiffs’ claims because the board had allowed the signs to be rebuilt, and, regarding the intentional-interference-with-business-relations claim, the city argued that it was immune from that claim, see Scott v. City of Mountain Brook, 602 So.2d 893, 895 (Ala.1992) (holding that a municipality was immune from an intentional-interference-with-business-relations claim), and that the BSA plaintiffs could not prove any actions on the part of the city defendants that would amount to a wrongful, malicious, unlawful, and unjustified interference with any of the BSA plaintiffs’ business relationships. The BSA plaintiffs opposed the motion for a summary judgment; in support of their opposition, they presented, among other things, affidavits from Keith Castleberry and Adolph Sutton, two property owners who leased to BSA certain property upon which it built some of its signs. In his affidavit, Castleberry testified that Nix had come to see Castleberry and that Nix had “told me he was coming to me as a person asking me not to rebuild my sign.” Sutton testified that he had personally met with Mayor Shell, and that Mayor Shell had told Sutton that he “was not going to allow the [BSA] signs to be restored.”

The BSA plaintiffs had filed a federal action pertaining to the sign ordinance. Based on the agreement of the parties, on March 22, 2007, the trial court stayed this action pending resolution of the federal action. Once the trial court was notified of the resolution of the federal action, the trial court entered an order on February 19, 2009, setting a status conference for March 24, 2009. The text of the order setting the status conference reads as follows:

“The above-styled matter is hereby reinstated as an active case on this Court’s docket, and this Court hereby sets a status conference in this cause to be held on the 24th day of March, 2009, at 11:00 a.m., at which time attorneys for all parties must attend and be ready to explain their understanding of status of the case, and, if it is to be tried, a proposed time schedule for such.”

Before the status conference, the BSA plaintiffs filed a supplemental brief in support of their opposition to the city defendants’ motion for a summary judgment. Approximately one month later, on March 20, 2009, the city defendants filed a supplemental brief in support of their motion for a summary judgment. In their supplemental brief, the city defendants argued that the BSA plaintiffs had no cause of action for damages against the city defendants; the city defendants specifically distinguished Town of Gulf Shores v. Lamar Advertising of Mobile, Inc., 518 So.2d 1259, 1261 (Ala.1987), in which the supreme court determined that the town’s attempt to enforce its zoning regulations outside its territorial limits could expose it to liability for damages. The city defendants further argued in their supplemental brief that the city could not be liable for an intentional tort like intentional interference with a business relationship and that Nix could not be liable for intentional interference with a business relationship because Castleberry had continued to do business with the BSA plaintiffs. Finally, the city defendants argued that the doctrine of substantive immunity, as outlined in Rich v. City of Mobile, 410 So.2d 385 (Ala.1982), and Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991), barred the BSA plaintiffs’ damages claim.

In October 2009, the trial court entered an order noting that it had heard arguments on the summary-judgment motion, presumably at the status conference in March 2009, but indicating that, because significant time had passed and because a new attorney had made an appearance in the case, it desired to hear further argument on the summary-judgment motion. After two continuances, the trial court finally held the hearing on the summary-judgment motion on January 19, 2010. The trial court permitted the parties to file supplemental briefs; the parties did so. The BSA plaintiffs specifically argued in their post-hearing brief that the arguments presented by the city defendants in their March 2009 supplemental brief were untimely asserted under Rule 56(c)(2), Ala. R. Civ. P., and, therefore, could not be considered by the trial court.

The trial court entered a summary judgment in favor of the city defendants on February 10, 2010. The BSA plaintiffs timely appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We affirm the summary judgment in favor of the city defendants.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

We will first address the BSA plaintiffs’ contention that the arguments asserted by the city defendants in their March 2009 supplemental brief in support of the earlier filed summary-judgment motion were untimely asserted under Rule 56(c)(2). The BSA plaintiffs argue that, under Rule 56(c)(2) and the cases construing it, a summary-judgment movant cannot assert a new argument in support of its summary-judgment motion less than 10 days before the hearing on that motion. Because the BSA plaintiffs contend that the March 24, 2009, status conference was also a summary-judgment hearing, the BSA plaintiffs argue that the city defendants’ assertion of new arguments in the March 2009 supplemental brief in support of their summary-judgment motion runs afoul of the 10-day notice requirement. The city defendants, however, argue that the trial court held only a status conference on March 24, 2009, and that the trial court did not set a hearing on the summary-judgment motion until October 2009. Thus, the city defendants argue that the trial court did not violate Rule 56(c)(2) by entertaining the arguments presented in the March 2009 supplemental brief in support of the summary-judgment motion.

Rule 56(c)(2) provides that “[t]he motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days’ notice with the consent of the parties concerned.” That rule further provides that, “[sjubject to subpara-graph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.” Rule 56(c)(2). In Van Knight v. Smoker, 778 So.2d 801, 805 (Ala.2000), our supreme court explained that “[o]ne purpose of the procedural rights to notice and hearing under Rule 56(c) is to allow the nonmoving party the opportunity to discover and to present evidence opposing the motion for summary judgment.” Both our supreme court and this court have routinely reversed summary judgments entered in circumstances revealing a lack of the requisite 10-day notice to the responding party. See, e.g., Moore v. GAB Robins N. Am., Inc., 840 So.2d 882, 884 (Ala.2002); Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 755 (Ala.2002); Shaw v. State ex rel. Hayes, 953 So.2d 1247, 1250-51 (Ala.Civ.App.2006); and Dean v. Director, Dep’t of Indus. Relations, 812 So.2d 1263, 1265 (Ala.Civ.App.2001). However, noncompliance with the notice requirement is not alone sufficient for a reversal; the party seeking a reversal of the summary judgment must show that it was prejudiced by the trial court’s action. Peebles v. Mooresville Town Council, 985 So.2d 388, 392 (Ala.2007). To demonstrate that prejudice, “the party need only come forth with any showing that the denial of the full 10-day notice period worked to his prejudice.” Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So.2d 826, 828 (Ala.1991).

Although Rule 56(c)(2) clearly requires that supporting materials be served on a party “at least ten (10) days before the time fixed for the hearing” on the summary-judgment motion, we agree with the city defendants that their March 2009 supplemental brief in support of the long-pending summary-judgment motion was not filed too late to be considered in this particular case. The order setting the status conference for March 24, 2009, did not indicate that the motion for a summary judgment would be entertained by the trial court at that time. Although it appears that the summary-judgment motion was argued at that hearing, the trial court did not rule on the motion after considering the arguments made at that hearing. Instead, on October 5, 2009, the trial court set another hearing at which to entertain arguments on the summary-judgment motion; the trial court set the hearing for November 17, 2009, more than 10 days after the city defendants filed their March 2009 supplemental brief and more than 10 days after the date of the order setting the hearing. After two continuances, the summary-judgment hearing finally took place in January 2010. The BSA plaintiffs had sufficient time in which to marshal any rebuttal to the arguments presented in the city defendants’ supplemental brief. Cf. Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 556 (Ala.2008) (affirming a summary judgment in favor of a defendant that had not filed a motion for a summary judgment because that defendant’s liability would have been premised solely on re-spondeat superior and the plaintiff had responded to the summary-judgment motion filed by the employees of the defendant and stating that the plaintiff “had sufficient notice and opportunity to fully present all legal arguments and all relevant evidence in opposition to the summary judgment the trial court ultimately entered”).

Even if we agreed that the city defendants’ supplemental brief was untimely because it was filed less than 10 days before the date of the status conference in March 2009, we would still be inclined to conclude that the trial court did not err in considering the arguments presented in that brief. Because the trial court held a later hearing on the summary-judgment motion, the BSA plaintiffs cannot demonstrate that they were prejudiced by the violation of the notice requirement of Rule 56(c)(2). See Peebles, 985 So.2d at 392. The summary-judgment hearing and the ultimate resolution of the motion for a summary judgment came 10 months after the city defendants filed their supplemental brief. This 10-month period permitted the BSA plaintiffs ample time to present opposing arguments, and, if necessary, evidence in opposition, before the trial court considered the arguments advanced by the city defendants in the March 2009 supplemental brief. The BSA plaintiffs’ failure to avail themselves of the opportunity to respond to the arguments advanced in the March 2009 supplemental brief is not sufficient to demonstrate prejudice. Thus, we conclude that the trial court did not err by considering the arguments advanced by the city defendants in the March 2009 supplemental brief in support of their motion for a summary judgment.

We turn next to the merits-based arguments the BSA plaintiffs advance against the summary judgment in favor of the city defendants. The BSA plaintiffs first argue that they were entitled to pursue a claim for damages against the city defendants based on the city defendants’ interpretation of the sign ordinance in such a manner as to preclude BSA from rebuilding its signs based on the holdings of Town of Gulf Shores, 518 So.2d at 1261, and Baldwin County Planning & Zoning Commission v. Montrose Ecor Rouge, L.L.C., 68 So.3d 121, 132 (Ala.Civ.App.2010). Secondly, the BSA plaintiffs argue that the summary judgment in favor of Nix on the BSA plaintiffs’ intentional-interference-with-business-relations claim was improperly entered because, they say, they presented substantial evidence creating a genuine issue of material fact concerning alleged statements made by Nix amounting to interference and because, they say, they presented substantial evidence of damages recoverable for intentional interference with business relations.

We must first consider whether the trial court’s summary judgment in favor of the city defendants on the BSA plaintiffs’ claim for damages based on the city defendants’ interpretation and enforcement of the sign ordinance so as to preclude BSA from rebuilding its signs was properly entered. As the BSA plaintiffs explain in their brief on appeal, judicial municipal immunity from tort liability was abolished in 1975 by Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). Since that time, municipalities have been subject to liability for the negligent acts of their employees. See Ala. Code 1975, § 11-47-190 (“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty... .”). However, the doctrine of substantive immunity shields municipalities from liability for the negligent acts of their employees “in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart [a municipality’s] legitimate efforts to provide such services.” Rich, 410 So.2d at 387. The Rich court further explained:

“We emphasize, however, that only the narrowest of constructions of our instant holding will avoid violence to § 11^47-190 and its Jackson interpretation; and that the substantive immunity rule of this case must be given operative effect only in the context of those public service activities of governmental entities ... so laden with the public interest as to outweigh the incidental duty to individual citizens.”

Id. at 387-88. As further explained by our supreme court in Hilliard v. City of Huntsville, 585 So.2d at 891, the lack of anything other than an incidental duty to a particular individual prevents the municipality from being liable for damages, because a breach of a duty owed to the general public will not form the basis for a negligence claim by an individual citizen.

Applying the doctrine of substantive immunity, this court determined that a county commission and a planning commission were entitled to substantive immunity for actions taken in connection with the exercise of their zoning power, including the adoption of a resolution to rezone certain property and the enforcement of that resolution. Payne v. Shelby County Comm’n, 12 So.3d 71, 80 (Ala.Civ.App.2008). The central issue in Payne was whether, after adopting a rezoning resolution pertaining to certain property neighboring the property owned by the plaintiffs, the Paynes, the commissions could be liable for failing to enforce the restrictions contained in the rezoning resolution against the property owner. Payne, 12 So.3d at 80. In reaching our conclusion that the commissions’ actions and decisions were protected by substantive immunity, we determined that “zoning powers are a public-service activity and may not be exercised for the benefit of individual landowners to the exclusion of the interests and well-being of all citizens of a county or municipality,” and, “[t]hus, the exercise of the zoning powers granted to a governmental body is a public-service activity to be exercised for the benefit of the governmental entity and for the well-being of the governed.” Id. at 78. Although we agreed that the rezoning resolution provided an incidental benefit to the Paynes, we determined that the commissions had exercised their power to rezone for the benefit of the county and its citizens; thus, we decided, the rezoning resolution created no duty owed by the commissions specifically to the Paynes. Id. at 79. We concluded, therefore, that the Paynes, because they could establish no duty owed to them by the commissions, could not prevail on their tort claims against the commissions and that the summary judgment in favor of the commissions was properly entered. Id. at 82.

We see little distinction between the commissions who exercised their power to zone in the county in Payne and the city in this case. The city indisputably has the power to zone within its corporate limits. See AIa.Code 1975, § 11-52-70 (granting to municipalities the power to exercise zoning power). In the present case, the city chose to enact a sign ordinance, and the city and Nix, acting in his official capacity, decided that, under their interpretation of the ordinance, BSA could not rebuild its hurricane-damaged signs. The sign ordinance was not enacted to provide a benefit to the BSA plaintiffs. Instead, the ordinance was enacted to benefit the municipality as a whole. Thus, based on our holding in Payne, we conclude that the BSA plaintiffs failed to establish a duty owed to them by the city or Nix, in his official capacity. Therefore, based on the doctrine of substantive immunity, the summary judgment in favor of the city and Nix in his official capacity on the BSA plaintiffs’ claim for damages arising out of the city defendants’ interpretation and enforcement of the city’s sign ordinance is affirmed.

We reach the same conclusion regarding the summary judgment in favor of Nix individually on the BSA plaintiffs’ claim against him for damages resulting from his interpretation and enforcement of the sign ordinance. We first note that the BSA plaintiffs have not argued in their brief to this court that Nix might be liable individually for negligence based on his interpretation and enforcement of the sign ordinance even if he was not liable in his official capacity. In Rich our supreme court declined to determine whether “a city employee would be liable individually for simple negligence in the performance of his duties.” Rich, 410 So.2d at 388. However, despite the Rich court’s failure to consider whether an individual employee could be held liable for negligence in conjunction with those duties that would give rise to substantive immunity to the municipality, our supreme court later indicated that, in fact, employees participating in a municipal function that gives rise to substantive immunity would share in that immunity. Tutwiler Drug Co. v. City of Birmingham, 418 So.2d 102, 105 (Ala.1982).

“It is readily apparent, then, that liability is imposed upon a municipality pursuant to statute, or upon its employees pursuant to common law, in those cases where there has been some tor-tious conduct resulting in injury or where the agent of the municipality was not involved in one of those activities narrowly construed as being within the range of those services ‘essential to the well-being of the governed.’ ”

Tutwiler Drug Co., 418 So.2d at 105 (emphasis added). We agree that substantive immunity should extend to the municipal employee involved in rendering “those services ‘essential to the well-being of the governed.’ ” Id. We cannot conceive of what duty Nix, individually, would owe the BSA plaintiffs if the city and Nix, in his official capacity, owed the BSA plaintiffs no duty arising from the enactment, interpretation, and enforcement of the sign ordinance, and the BSA plaintiffs have not provided us with any such duty. At least one federal court has reached a similar conclusion regarding the extension of substantive immunity to defendants other than the city itself. See O’Neal Homes, Inc. v. City of Orange Beach, (Civil Action No. 06-0881-CG-B, May 14, 2008) (S.D.Ala.2008) (not reported in F.Supp.2d) (“The cases discussing the doctrine of ‘substantive immunity’ apply the doctrine to municipalities. Although neither party sets forth any argument as to the defendants other than the City of Orange Beach itself, the court finds that the doctrine applies to all of the defendants in this case. There is nothing before the court to show that the city council, the mayor, or the Department of Community Development owed or breached a duty to the plaintiffs to draft legislation with care. See Rich [v. City of Mobile ], 410 So.2d 385 [ (Ala.1982) ] (public officials owe their duty to the public). If there is no duty, there is no negligence.”). Thus, the summary judgment in favor of Nix, individually, on the BSA plaintiffs’ claims for damages arising from the interpretation of and enforcement of the sign ordinance is affirmed.

The BSA plaintiffs also appeal from the summary judgment in favor of Nix on the BSA plaintiffs’ claim of intentional interference with a business relationship. The BSA plaintiffs argue that a genuine issue of material fact exists regarding the statement Nix is alleged to have made to Castleberry, which was to the effect that Nix was personally requesting that Castleberry not permit the BSA plaintiffs to rebuild signs on Castleberry’s property. We agree that the conflict between Castleberry’s affidavit and Nix’s affidavit, in which he denied having made any statement to that effect, creates a factual question regarding whether the alleged statement was made. However, Nix also argued to the trial court that the BSA plaintiffs could not establish any damages flowing from any alleged interference with their business relationship with Castleber-ry. Thus, we will consider whether the BSA plaintiffs presented substantial evidence of those damages that might be recoverable in an intentional-interference-with-business-relations action.

“In Alabama, one who wrongfully interferes with the business relationship of another is subject to liability for ‘(1) the pecuniary loss of the benefits of the ... relation; (2) consequential losses for which the interference is a legal cause; ... (3) emotional distress or actual harm to reputation if either is reasonably to be expected to result from the interference,’ KW Plastics v. United States Can Co., 131 F.Supp.2d 1265, 1268 (M.D.Ala.2001); and (4) punitive damages. Restatement (Second) of Torts § 774A cmt. a (1979). [A plaintiff] need not ‘establish that “but for” the interference [it] would have been awarded [a] contract.’ Utah Foam [Prods., Inc. v. Polytec, Inc.], 584 So.2d [1345,] 1353 [(Ala.1991) ]. ‘The damage resulting from interference can occur regardless of the fact that the [plaintiff] would not have been awarded the contract, and it can also take other forms.’ Id.”

White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 17 (Ala.2009).

The BSA plaintiffs argue that they established that they suffered significant financial losses of over $75,000 when BSA was unable to seasonably repair its signs because of the city defendants’ insistence that the sign ordinance barred the repair or rebuilding of those signs. However, those damages resulted not from Nix’s alleged intentional interference with the BSA plaintiffs’ business relationship with Castleberry but instead from the city defendants’ interpretation of the sign ordinance to preclude the repair or rebuilding of the signs. We do not agree that the BSA plaintiffs have demonstrated that the over $75,000 in losses resulted in any way from Nix’s alleged intentional interference with the business relationship between the BSA plaintiffs and Castleberry.

The only other proof of damages relied on by the BSA plaintiffs is based on the statements in Salter’s interrogatory responses regarding damages that Salter intended to personally claim. Salter’s interrogatory responses indicate that Salter sought damages for emotional distress and for damage to his reputation:

“After Hurricane Ivan the City of At-more has treated Mr. Salter as running a less than respectable business. The City of Atmore has discriminated against Mr. Salter as they [sic] have singled out his business, they [sic] have misinterpreted their [sic] sign ordinance and thus has [sic] caused Mr. Salter’s name to appear in the newspaper with negative comments.
“After Bill Salter brought suit against the City of Atmore[,] Mr. Salter has found that his friends and associates of the past 40 years have been unwilling to discuss the sign issue due to pressure from representatives of the City of At-more. Mr. Salter deeply values his personal and business relationships in At-more and feels a great deal of strife over his personal treatment.”

Although emotional-distress and harm-to-reputation damages may properly form the basis of a damages award in an intentional-interference-with-business-relations action, see White Sands Group, 32 So.3d at 17, we are not convinced that Salter’s interrogatory response supports his claim that Nix’s alleged statement to Castleber-ry resulted in the harm to his reputation or the emotional distress that Salter claims to have suffered. Instead, the substance of Salter’s interrogatory response appears to be that the city defendants’ interpretation of the sign ordinance and the concomitant refusal to permit BSA to rebuild or repair its signs caused negative comments to become connected with Salter and resulted in Salter’s friends and associates declining to “discuss the sign issue.” Salter has failed to present substantial evidence demonstrating that he suffered any damage resulting from Nix’s alleged intentional interference with the BSA plaintiffs’ business relationship with Castleberry.

The BSA plaintiffs have failed to present substantial evidence of damages flowing from Nix’s alleged intentional interference with their business relationships. The lack of such evidence is fatal to their intentional-interference-with-business-relations claim. Thus, the trial court properly entered a summary judgment in favor of Nix on that claim.

In conclusion, the trial court did not err when it considered the arguments asserted by the city defendants in their March 2009 supplemental brief in support of their summary-judgment motion. Based on the application of substantive immunity to the exercise and enforcement of zoning power in Payne, the summary judgment in favor of the city and Nix in his official capacity on the BSA plaintiffs’ claim for damages resulting from the interpretation and enforcement of the city’s sign ordinance is affirmed. See Payne, 12 So.3d at 78. Likewise, the summary judgment in favor of Nix in his individual capacity on that same claim is affirmed. See Tutwiler Drug Co., 418 So.2d at 105. Finally, the BSA plaintiffs’ failure to present substantial evidence of damages resulting from Nix’s alleged intentional interference with the BSA plaintiffs’ business relationship with Castleberry requires an affirmance of the summary judgment in favor of Nix on the BSA plaintiffs’ intentional-interference-with-business-relations claim. Accordingly, the summary judgment in favor of the city defendants is affirmed in its entirety.

AFFIRMED.

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

BRYAN, J., dissents, without writing.

      . The BSA plaintiffs do not argue that the summary judgment in favor of the city on their intentional-interference-with-business-relationship claim should be reversed, and properly so, because Alabama law is clear— the city cannot be held liable for the intentional torts of its employees. Altmayer v. City of Daphne, 613 So.2d 366, 369 (Ala.1993) (stating that § 11-47-90 “absolves a municipality from liability for the intentional torts of its agents”); see also Scott, 602 So.2d at 895 (holding that a municipality was immune from an intentional-interference-with-business-relations claim).