author: WOODALL, Justice.

text:
    Barbara ROBERTS v. Steve LANIER et al.
    1100045.
    Supreme Court of Alabama.
    April 15, 2011.
    As Modified on Denial of Rehearing June 10, 2011.

      Jerry M. Blevins, Montgomery, for appellant.
    George P. Ford of Ford, Howard & Cornett, P.C., Gadsden, for appellees Steve Lanier and Steve Lanier, P.C.
    F. Michael Haney and Elizabeth H. Mills of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee Coggin & Stallings, LLC.
   WOODALL, Justice.

Barbara Roberts sued Steve Lanier (“Lanier”), Steve Lanier, P.C. (“the firm”), Rodney Loring Stallings (“Stallings”), and Coggin & Stallings, L.L.C. (“Coggin”), asserting claims related to Lanier’s and Stallings’s representation of Roberts regarding a certain criminal matter in Alabama. The circuit court entered summary judgments in favor of Lanier and the firm, Stallings, and Coggin. We affirm in part and reverse in part, and we remand the case to the circuit court for further proceedings.

Facts and Procedural History

On April 21, 2006, Roberts was arrested on a charge of murder and was placed in the Cherokee County, Alabama, jail. She contacted Lanier, an attorney licensed to practice law in Georgia, who was then representing Roberts on a misdemeanor charge in Georgia. Lanier has been doing business as Steve Lanier, P.C., since 1997 and is the sole attorney associated with the firm.

Lanier traveled to Cherokee County and met with Roberts while she was in the Cherokee County jail. Roberts and Lanier executed an employment agreement, by which Lanier agreed to provide legal services to Roberts in Alabama on the then pending charge of noncapital murder (“the contract”). The contract provided that Roberts would pay Lanier a “nonrefundable retainer” of $50,000 for his services. Roberts also executed a power of attorney to allow Lanier to withdraw $50,000 from her bank accounts. Shortly thereafter, Lanier withdrew the $50,000 from Roberts’s accounts and, according to his deposition testimony, deposited the money in the firm’s business account, not its trust account.

Roberts claims that, at the time they executed the contract, Lanier “failed to disclose to [her] that he was not licensed [to practice law] in Alabama; that he would have to associate local counsel in Alabama on the case in order to seek permission to be allowed to participate in the case; and that Roberts would be solely responsible for Alabama counsel’s fees.” Roberts’s brief, at 15. Lanier testified that “he explained to [Roberts] in their initial meeting or within a few days thereafter that since he was not licensed in Alabama, he would be required to apply for permission to represent her, and that an Alabama attorney would have to be involved in her defense.” Lanier and the firm’s brief, at 7.

After meeting with Roberts, Lanier associated Stallings as local counsel. At that time, Stallings was a member at Coggin, which was dissolved in December 2008.

Roberts says that on April 27, 2006, at a hearing in the Cherokee District Court on her noncapital-murder charge, she learned for the first time that Lanier was not licensed to practice law in Alabama and that Stallings had been associated on her case. She says that Stallings told her at the hearing that she would have to enter into a separate fee agreement with him. Roberts alleges that on May 1, 2006, she executed a fee agreement with Stallings, thereby agreeing to pay him $85,000 to represent her on the noncapital-murder charge. Lanier responds that there is no written contract between Roberts and Stallings in the record and that he paid Stallings $5,000 out of the $50,000 he had withdrawn from Roberts’s accounts.

Roberts says that on May 1, 2006, she attempted to terminate Lanier’s representation because she saw no need for' two attorneys to represent her on the noncapi-tal-murder charge. According to Roberts, she requested a refund of the $50,000 previously withdrawn from her bank accounts by Lanier as his “nonrefundable” retainer. Roberts also says that Lanier told her that “based on the ‘non-refundable’ retainer language of his employment contract she was not entitled to a refund of any fees. Lanier further explained that Roberts might as well let him continue working on her case since she would not be receiving a refund of any fees even if he was terminated.” Roberts’s brief, at 19. Roberts says she then agreed to allow Lanier to continue his representation until his billable hours equaled $50,000 or she was indicted for capital murder, whichever came first.

In July 2006, Lanier filed an application for pro hac vice admission in order to appear as counsel in Roberts’s case. He was granted pro hac vice status on August 3, 2006. That same day, the district court finished its preliminary hearing on Roberts’s noncapital-murder charge and sent her case to the grand jury. Stallings alone was present to represent Roberts at the preliminary hearing in the district court.

On November 2, 2006, the grand jury indicted Roberts for capital murder. Roberts was returned to the Cherokee County jail, where she was held without bond. Roberts claims that

“at Stallings’[s] request, Roberts had all of her mail forwarded to [his] law office so that Stallings could tend to and oversee every aspect of Roberts’[s] personal life, to include but not limited to: the payment of all of her monthly bills and expenses. At Stallings’[s] request, Roberts also relinquished her banking account information and check book(s) to Stallings.
“Thereafter, Stallings would periodically appear at the Cherokee County Jail and have Roberts sign blank cheeks for the stated purpose of using the checks to pay Roberts’[s] monthly bills and expenses (i.e., home utilities, credit card bills, etc.) and expenses associated with Roberts’s criminal case.”

Roberts’s brief, at 21.

Roberts alleges that, instead of using the blank checks for purposes she had intended, Stallings made the checks payable to himself and took the funds for his personal use. She claims that, between November 2006 and October 2008, Stall-ings misappropriated approximately $100,000 of her funds.

On November 2, 2006, Lanier met with Roberts and presented her with a second employment contract, which provided that Roberts would pay Lanier an additional $50,000 “nonrefundable retainer” to represent her on the capital-murder charge. Roberts refused to sign the second contract. Lanier testified in his deposition that he continued to work on the case under the assumption that Roberts wanted him to continue and that he ultimately would be retained by her. He withdrew from representing Roberts in March 2007.

Roberts was ultimately convicted of capital murder and was sentenced to life imprisonment without the possibility of parole. On February 10, 2009, in consultation with another attorney, Roberts says she learned for the first time that the nonrefundable-retainer language in the contract is unenforceable in Alabama and that Lanier’s reliance on that language in refusing to refund any part of the fee to Roberts was improper.

Eight days later, on February 18, 2009, Roberts filed a legal-malpractice action in the Cherokee Circuit Court, naming Lanier, the firm, and Stallings as defendants. Roberts amended her complaint to add a claim requesting a declaratory judgment and to add the Alabama State Bar and Coggin as defendants. All the circuit judges in Cherokee County recused themselves, and the case was assigned to Eto-wah Circuit Judge Clark Hall.

Lanier and the firm (hereinafter sometimes referred to collectively as “the Lanier defendants”) moved the circuit court to “dismiss that portion of the First Amended Complaint which purports to be a ‘declaratory judgment action’; or alternatively, to strike therefrom all allegations which make any reference to the Alabama Rules of Professional Conduct.” Stallings filed a counterclaim against Roberts, seeking $457,500 on eight open-account claims. Roberts opposed the Lanier defendants’ motion to dismiss and moved the circuit court to dismiss Stallings’s counterclaim. On August 7, 2009, the circuit court denied Roberts’s motion to dismiss Stallings’s counterclaim and granted the Lanier defendants’ motion to strike “all allegations of [Roberts’s] First Amended Complaint which invoke or allege violations of the Rules of Professional Conduct.” The circuit court also stated that Roberts’s request for a declaratory judgment as to Lanier’s alleged unauthorized practice of law was severed and would be considered in a separate bench trial.

On August 18, 2009, Roberts moved the circuit court for a partial summary judgment against the Lanier defendants. The circuit court denied that motion. Stallings moved the circuit court to dismiss his counterclaim against Roberts. The counterclaim was dismissed on April 6, 2010.

On May 4, 2010, Roberts filed a second amended complaint, reasserting claims from the first amended complaint, including those that had been dismissed by the circuit court’s August 7 order. Roberts also added a fraud claim against Lanier and a malicious-prosecution claim against Stallings with regard to his earlier counterclaim.

The Lanier defendants moved the circuit court to strike the allegations in the second amended complaint that involved alleged violations of the Alabama Rules of Professional Conduct. The circuit court granted that motion. Roberts then moved the circuit court to clarify its order, arguing that the order struck matters that did not refer to the Rules of Professional Conduct, including Roberts’s request for a judgment declaring that “the ‘non-refundable retainer’ language of Defendant Lanier’s employment contract is unconscionable and against the public policy and law in Alabama” and that Lanier had engaged in the unauthorized practice of law. The circuit court entered an order, purporting to clarify its earlier order, stating, in pertinent part:

“It is the understanding of the Court that all tort and common law claims are recast into [the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975 (‘ALSLA’),] and [it is] the plaintiffs burden to show a breach of the standard of [care]. Also, that ... [§ ] 6-5-578[, Ala.Code 1975,] prohibits the referencing of the Code of Professional Conduct.”

Stallings moved the circuit court to dismiss the malicious-prosecution claim for failure to state a claim upon which relief could be granted. The circuit court conditionally granted the motion. Coggin also moved the circuit court to dismiss the second amended complaint as to it for failure to state a claim against it.

The Lanier defendants, Stallings, and Coggin each moved for a summary judgment. The circuit court granted those motions on July 23, 2010, and entered summary judgments in favor of the Lanier defendants, Stallings, and Coggin “on all claims” brought against them. The circuit court also found that, “[b]y virtue of summary judgments having been granted in favor of all defendants, the Court deems all other pending motions to be MOOT.” The circuit court went on to state: “No specific relief having been sought against the Alabama State Bar, the Court finds that all claims pending between and among the respective parties are fully resolved, and this Judgment is FINAL as to all claims and parties.” (Capitalization in original.)

On July 30, 2009, Judge Hall resigned from the bench, and retired Circuit Judge Samuel H. Monk was appointed to preside over the case. Roberts moved the circuit court to alter, amend, or vacate the July 23 summary judgments. Judge Monk denied that motion.

Roberts now appeals, arguing that the circuit court erred in entering summary judgments in favor of the Lanier defendants, Stallings, and Coggin. She also argues that the circuit court erred in failing to grant her request for a judicial determination as to whether the nonrefundable-retainer language in the contract was unconscionable and against public policy and as to whether Lanier had engaged in the unauthorized practice of law.

Standard of Review

“This Court’s review of a summary judgment is de novo. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. In making such a determination, we must review the evidence in the light most favorable to the non-movant. Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. ‘[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.’ ”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004) (quoting West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (citations omitted)).

Analysis

I. The Lanier defendants

Roberts first argues that the circuit court erred in entering a summary judgment in favor of the Lanier defendants. The circuit court did not state the basis for its summary judgment in the Lanier defendants’ favor. However, Roberts argues that none of the grounds argued in the Lanier defendants’ motion for a summary judgment supports the circuit court’s judgment.

In their motion, the Lanier defendants argued that Roberts’s claims are governed by the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”), and that Roberts had failed to prove a violation of the ALSLA because she had not presented expert testimony as to the alleged breach of the applicable standard of care, nor had she shown that, but for Lanier’s actions, the outcome of her case would have been different. The Lanier defendants also argued that Roberts’s claims against them were barred by the ALSLA’s two-year statute of limitations and that Roberts had not demonstrated that she had suffered any injury as a result of Lanier’s actions.

We first address whether the ALSLA applies to the claims against the Lanier defendants. Section 6-5-573, Ala.Code 1975, provides: “There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.”

Section 6-5-572(2), Ala.Code 1975, defines a “legal service provider” as

“[ajnyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.”

Section 6-5-572(1), Ala.Code 1975, defines “legal service liability action” as

“[a]ny action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider’s violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damage[ ] or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

Roberts argues that, pursuant to this Court’s rationale in Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So.2d 784 (Ala.2006), Lanier was not a “legal service provider” under the ALSLA because he was not licensed to practice law in Alabama. Therefore, she argues, the ALSLA does not apply to her claims against the Lanier defendants. In response, the Lanier defendants argue that Fogarty is distinguishable and that the ALSLA applies because Lanier was admitted pro hac vice to practice in Alabama.

This Court recently addressed similar issues in Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.3d 667 (Ala.2009). In that case, Wachovia Bank (“Wachovia”), which was being sued by Neal Greene, filed a third-party complaint against, among others, Jones, Morrison & Womack, P.C. (“Jones Morrison”), alleging claims under the ALSLA. The trial court entered a summary judgment in favor of Jones Morrison on Wachovia’s third-party complaint. The Court of Civil Appeals reversed the judgment and remanded the case to the trial court. SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885 (Ala.Civ.App.2005). On remand, the trial court entered a judgment as a matter of law in Jones Morrison’s favor, stating that “the Bank had failed to prove by expert testimony the applicable standards of care and that the lawyers had allegedly breached those standards of care.” Wachovia, 42 So.3d at 673-74. Wachovia appealed.

On appeal, Jones Morrison, among other things, argued that it was not subject to liability under the ALSLA “because its attorneys were not licensed to practice in Alabama” and, therefore, “it was not acting as a ‘legal service provider’ under the circumstances of th[at] case.” Wachovia, 42 So.3d at 675. Jones Morrison cited Fogarty in support of its argument. In Wachovia, we discussed our decision in Fogarty, noting that the appellees in that case — Parker, Poe, Adams & Bernstein, L.L.P. (“Parker Poe”) — had argued, among other things, that the Fogartys’ claims should have been brought under the ALSLA because, according to Parker Poe, it was engaged in the practice of law in Alabama. We went on to state:

“In rejecting Parker Poe’s argument that it was ‘engaged in the practice of law in the State of Alabama,’ this Court stated:
“ ‘Furthermore, it appears that the ALSLA applies only to attorneys who are licensed to practice law in Alabama. Parker Poe argues that it was “engaged in the practice of law in the State of Alabama” and, thus, falls under the second prong of the ALSLA’s definition of a legal-service provider. However, this Court has expressly stated that “[t]he plain language of § 6-5-572(2), as well as that of the other portions of the ALSLA, clearly indicates that the Legislature intended for the ALSLA to apply only to lawyers and to entities that are composed of members who are licensed to practice law within the State of Alabama.” Alabama Educ. Ass’n v. Nelson, 770 So.2d 1057, 1059 (Ala.2000) (emphasis added).
“ ‘According to the complaint, Jones and Baron[, two attorneys employed by Parker Poe,] were not licensed to practice law within the State of Alabama, and Parker Poe does not dispute this allegation. Thus, the ALS-LA would not apply to the claims against Parker Poe, and the ALSLA could not be the Fogartys’ exclusive remedy.... ’
961 So.2d at 789.
“We disagree with Jones Morrison’s contention that under ... Fogarty it cannot be held liable under the ALSLA because none of its attorneys were licensed to practice law within the State of Alabama. First, unlike ... Parker Poe in Fogarty, Jones Morrison does not dispute that it was providing legal services to the Bank in the present case....
“Second, to provide those legal services to the Bank, Jones Morrison in the present case agreed to perform work or services — such as relaying information between [Stokes, Clinton, Fleming & Sherling (‘Stokes Clinton’) ] and the Bank regarding the legal action to collect the debt — for the benefit of the Stokes Clinton firm in its rendering of legal services to the Bank. Stokes Clinton, as noted, is a legal-service provider under the ALSLA. Thus, unlike Fogarty, in the present case an attorney-client relationship existed between Jones Morrison and the Bank, and in offering legal services to the Bank, Jones Morrison sought the assistance of Stokes Clinton and agreed to perform work for the benefit of Stokes Clinton, itself a ‘legal-service provider’ under the ALSLA. Consequently, the question presented in this case — whether the ALSLA applies to claims against an attorney not licensed in Alabama who, in conjunction with an attorney licensed to practice in Alabama, performs legal services in Alabama for a client — was not at issue in Fogarty.... Thus, to the extent that language in Fogarty ... suggests that the ALSLA could not apply in such a scenario, that language was unnecessary to the holding[ ] in Fogarty ... and is not controlling here.”

Wachovia, 42 So.3d at 677-78. We went on to conclude:

“Stokes Clinton is a ‘legal service provider’ under § 6-5-572(2) of the ALSLA because it is a ‘professional corporation[ ], association! ], [or] partnership[ ]’ that is ‘licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama.’ In view of its arrangement with the Stokes Clinton firm, Jones Morrison meets that part of the definition of a ‘legal service provider’ that includes ‘the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers’ (emphasis added).
“The Bank’s above-stated claims against Jones Morrison arise out of the attorney-client relationship that existed between Jones Morrison and the Bank and out of Jones Morrison’s provision of legal services to the Bank. Thus, the ALSLA governs the Bank’s claims against Jones Morrison.”

Wachovia, 42 So.3d at 678-79 (footnote omitted).

The position of the Lanier defendants in this case is very similar to the position of Jones Morrison in Wachovia. It is undisputed that Roberts’s “claims against [the Lanier defendants] arise out of the attorney-client relationship that existed between [the Lanier defendants] and [Roberts] and out of [the Lanier defendants’] provision of legal services to [Roberts].” Wachovia, 42 So.3d at 678.

Moreover, Lanier associated Stallings to assist him in representing Roberts. Stall-ings is licensed to practice law in Alabama and is, therefore, a legal-service provider under the ALSLA. Lanier’s billing statements, which are undisputed, show that, until his withdrawal in March 2007, Lanier worked with Stallings in representing Roberts on the pending criminal charge. The statements indicate that, among other things, Lanier performed legal research, participated in preparations for the preliminary hearing in the district court on the noncapital-murder charge, and reviewed various motions and other paperwork prepared by Stallings.

The question presented in this case, as in Wachovia, is “whether the ALSLA applies to claims against an attorney not licensed in Alabama who, in conjunction with an attorney licensed to practice in Alabama, performs legal services in Alabama for a client.” Wachovia, 42 So.3d at 677-78. As we noted in Wachovia, this question “was not at issue in Fogarty,” and, “[t]hus, to the extent that language in Fogarty ... suggests that the ALSLA could not apply in such a scenario, that language was unnecessary to the holding[ ] in Fogarty ... and is not controlling here.” 42 So.3d at 678.

We conclude that Lanier, like Jones Morrison in Wachovia, “meets that part of the definition of a ‘legal service provider’ that includes ‘the persons, firms, or corporations either employed by or performing work or services for the benefit of’ ” a legal-service provider under the ALSLA. Wachovia, 42 So.3d at 678. Therefore, the ALSLA governs Roberts’s claims against the Lanier defendants.

Having determined that the ALSLA applies to the claims against the Lanier defendants, we now address whether the Lanier defendants were entitled to a summary judgment on those claims. In her second amended complaint, Roberts sought a judgment declaring that, among other things, the nonrefundable-retainer language in the contract was unconscionable and that Lanier had engaged in the unauthorized practice of law; she also alleged that Lanier had

“breached his duty of care to Roberts in:
“(a) misrepresenting to Roberts that he was qualified to represent her in the State of Alabama on the pending criminal charge;
“(b) deceiving Roberts into executing a ‘non-refundable retainer’ employment contract under the pretense that such an agreement was valid and lawful;
“[(c)] misrepresenting to Roberts that under no circumstance, even if he were terminated, would Roberts be entitled to a refund of fees because the retainer of $50,000 was ‘non-refundable’; and
“[ (d) ] converting funds belonging to Roberts, in the approximate sum of $50,000.00, to his own personal use.”

Roberts argues that the circuit court erred in dismissing her request for a judgment declaring whether the “nonrefundable retainer” language in the contract was unconscionable and against Alabama public policy and whether Lanier had engaged in the unlawful practice of law in Alabama. The first issue is moot in light of the Lanier defendants’ concessions that the “nonrefundable retainer” language is prohibited under Alabama law and that the contract was unenforceable as written. The second issue — whether Lanier’s actions constituted the unauthorized practice of law — is barred by the statute of limitations in the ALSLA.

Section 6-5-574(a), Ala.Code 1975, provides, in pertinent part:

“All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.... ”

The act or omission giving rise to Roberts’s request for a judicial declaration that Lanier had engaged in the unauthorized practice of law occurred upon the execution of the contract in April 2006, and Roberts says that she learned on April 27, 2006, that Lanier was not licensed to practice law in Alabama. However, Roberts did not file the present action until February 2009, well after the two-year statute of limitations had expired. For these reasons, we affirm the circuit court’s judgment in the Lanier defendants’ favor with regard to the request for a declaratory judgment.

Roberts’s claim that Lanier breached the standard of care by misrepresenting to her that he was qualified to represent her in Alabama on the noncapital-murder charge is also barred by the ALS-LA’s statute of limitations. This alleged misrepresentation took place in April 2006 when the contract was executed. By her own admission, Roberts knew by May 2006 that Lanier was not licensed to practice law in Alabama, that Lanier had associated Stallings as local counsel, and that she would have to execute a. separate fee agreement with Stallings. Thus, the two-year statute of limitations had expired before February 2009 with respect to this claim, and we affirm the circuit court’s summary judgment in the Lanier defendants’ favor as to this claim.

The Lanier defendants argued in their summary-judgment motion that Roberts’s remaining claims — that Lanier deceived her into executing the invalid contract, that he misrepresented to Roberts that she would not be entitled to any refund of the retainer fee if she terminated his employment, and that he converted Roberts’s funds for his personal use — were also barred by the statute of limitations. However, Roberts argues that “the[se] claims have been timely filed under the ‘saving provision’ contained in § 6-5-574.” Roberts’s brief, at 53-54.

As noted previously, the two-year statute of limitations in § 6-5-574(a) generally begins to run at the time of the act, omission, or failure giving rise to the claim. As with the prior claims, the acts or omissions underlying the remaining claims occurred in April and May 2006, more than two years before Roberts filed suit. Roberts and Lanier executed the contract on April 21, 2006. A few days later, Lanier withdrew $50,000 from Roberts’s bank accounts and, according to Lanier’s deposition testimony, deposited the money in the firm’s bank account. According to Roberts, Lanier told her on May 1, 2006, that, even if she terminated his representation, she would not entitled to a refund of any part of the $50,000, which he said was a “nonrefundable retainer.”

However, § 6-5-574(a) also provides “that if the cause of action is not discovered and could not reasonably have been discovered within [the two-year limitations period], then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.” Roberts argues that she learned for the first time on February 15, 2009, that the “nonrefundable retainer” language of the contract was unlawful in Alabama and that Lanier’s reliance on that language in refusing to refund to her any of the retainer was improper. She filed her original complaint three days later.

Roberts also argues that she “had no reason to know of the misconduct committed by Lanier nor could the misconduct reasonably have been discovered prior to [February 15, 2009].” Roberts’s brief, at 54-55. We have found no evidence indicating that Roberts was aware that the nonrefundable-retainer language was unenforceable before February 15, 2009. Of course, when a party actually discovered or should have discovered an alleged misrepresentation is generally a question for the jury. See Jones v. Alfa Mut. Ins. Co., 1 So.3d 23, 31 (Ala.2008). Therefore, it appears that the remaining claims may fall within the savings provision of § 6-5-574(a) and are not barred by the statute of limitations as a matter of law.

The Lanier defendants argue that through the exercise of ordinary diligence Roberts could have discovered these remaining claims before the statute of limitations expired. They argue that Roberts could have questioned Stallings, the district attorney, or the circuit court about Lanier’s alleged statements regarding the effect of the nonrefundable-retainer language in the contract. However, the Lanier defendants have not directed this Court to any evidence indicating that Roberts had, before February 15, 2009, any reason to doubt Lanier’s alleged representations that the nonrefundable-retainer language in the contract was valid and that, because of that language, she would not be entitled to a refund if she terminated his employment. We cannot agree that the exercise of ordinary diligence requires a client to seek independent verification of representations made by his or her attorney regarding the validity or meaning of terms in an attorney-client employment contract.

The Lanier defendants also argue that Roberts did not present substantial evidence showing that she is entitled to the benefit of the provision of § 6-5-574(a) that allows an otherwise untimely action to be filed six months from the date of discovery. However, the record contains an affidavit in which Roberts states, in pertinent part:

“Because I saw no need of having two attorneys on my case and incurring double the expense associated with two attorneys, coupled with the fact that I felt Lanier had deceived me into retaining his services, on or about May 1, 2006, during a meeting with Lanier at the Cherokee County Jail, I terminated La-nier and requested a refund of the $50,000 previously taken by Lanier as his ‘non-refundable’ retainer.
“In response, Lanier told me that based on the ‘non-refundable’ retainer language of his employment contract that I was not entitled to a refund of any fees. Lanier further explained that I might as well let him continue working on my case since I would not be receiving a refund of any fees even if he was terminated.
“I accepted Lanier’s representations as I had no reason to believe there was anything improper about the ‘non-refundable’ retainer language of Lanier’s employment contract at that time, or that Lanier was prohibited from retaining the ‘non-refundable’ retainer despite his termination.
“Based on Lanier’s representations, I agreed Lanier could continue on my case until such time as his billable hours equaled $50,000, or I was indicted for capital murder, whichever occurred first.
“But for the fraudulent representations of Lanier, I would not have paid Lanier a $50,000 ‘non-refundable’ retainer, nor would I have permitted him to continue on my case after terminating him and demanding a refund of the $50,000 ‘non-refundable’ retainer.”

As the Lanier defendants note, “substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Roberts’s affidavit testimony is sufficient to meet this standard as to the remaining claims.

The Lanier defendants also argued that they were entitled to a summary judgment because Roberts had failed to present expert testimony that Lanier had breached the applicable standard of care. Roberts argues that her remaining claims fall within “the common sense exception to the general rule requiring expert testimony in a legal malpractice action.” Roberts’s brief, at 50.

This Court has stated “that an exception to the general requirement that a plaintiff present expert testimony in support of a legal-malpractice claim occurs where a legal-service provider’s want of skill or lack of care is so apparent as to be understood by a layperson and requires only common knowledge and experience to understand it.” Valentine v. Watters, 896 So.2d 385, 394 (Ala.2004). Roberts argues:

“[T]he jury will decide whether Lanier breached the applicable standard of care in:
“(a) deceiving Roberts into executing a ‘non-refundable retainer’ employment contract under the pretense that such an agreement was valid and lawful;
“(b) misrepresenting to Roberts that under no circumstance, even if he were terminated, would Roberts be entitled to a refund of fees because the retainer of $50,000 was ‘non-refundable’; and
“(c) converting funds belonging to Roberts, in the approximate sum of $50,000.00, to his own personal use.
“None of these issues requires scientific, technical, or other specialized knowledge in order for the trier of fact to determine whether the applicable standard of care was breached. A layperson utilizing common knowledge and experience can certainly make this determination.”

Roberts’s brief, at 52. We agree.

It is undisputed that contractual provisions for nonrefundable retainers are unenforceable in Alabama and that the Lanier defendants were not entitled to keep any unearned fees. It is also undisputed that Lanier withdrew $50,000 from Roberts’s accounts arid has not refunded any of that fee even though, according to Roberts, she attempted to terminate Lanier’s employment soon after it began. If the jury finds that Lanier misrepresented to Roberts that the nonrefundable-retainer language was valid and that she was not entitled to a refund of any of the retainer, it could, using “common knowledge and experience,” determine that such misrepresentations and Lanier’s retention of the retainer constituted a breach of the applicable standard of care. Therefore, we conclude that Roberts was not required to provide expert testimony as to the remaining claims against the Lanier defendants. See Valentine, supra.

The Lanier defendants also argued in their summary-judgment motion (1) that Roberts had failed to prove that “but for the alleged violation of the standard of care by the defendant, the plaintiff would have achieved a better result, or different outcome in her case”; and (2) that Roberts had failed to show that she had suffered any injury as a result of the alleged misconduct. We find these arguments to be without merit as well.

First, Roberts has not alleged that Lanier’s conduct with regard to the underlying criminal matter itself fell below the standard of care. Instead, her claims are related to his conduct with regard to the terms of, and the fees charged for, Lanier’s employment under the contract. Therefore, the outcome of the underlying criminal case is irrelevant to the question of wrongdoing in this action.

Second, Roberts’s affidavit testimony indicates that “[b]ut for the fraudulent representations of Lanier, [she] would not have paid Lanier a $50,000 ‘non-refundable’ retainer, nor would [she] have permitted him to continue on [her] case after terminating him and demanding a refund of the $50,000 ‘non-refundable’ retainer.” This testimony is sufficient to create a question of fact as to whether Roberts suffered damage as a result of Lanier’s alleged misconduct. “ ‘The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.’ ” Alabama Elec. Coop. v. Bailey’s Constr. Co., 950 So.2d 280, 283 (Ala.2006) (quoting Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994)).

For the foregoing reasons, we hold that the circuit court erred in entering a summary judgment in favor of the Lanier defendants on Roberts’s claims (1) that Lanier misrepresented to her that the contract as written was valid and enforceable; (2) that Lanier misrepresented to Roberts that she was not entitled to any refund of the retainer; and (3) that Lanier converted Roberts’s funds to his personal use. As to those claims, we reverse the circuit court’s judgment and remand the case for further proceedings consistent with this opinion.

II. Stallings and Coggin

We now address Roberts’s arguments with regard to the summary judgments in favor of Stallings and Coggin. Although Stallings and Coggin filed separate summary-judgment motions in the circuit court, Roberts alleges the same error and makes the same arguments as to both. Roberts argues that the summary-judgment motions filed by Stallings and Coggin “[were] not in conformity with Rule 56, Ala. R. Civ. P., [and,] therefore, the burden never shifted to Roberts to produce substantial evidence to defeat the motion[s]. Accordingly, the summary judgments] [were] due to be summarily denied and the trial court erred to reversal in granting the motion[s].” Roberts’s brief, at 62. We agree.

As Roberts notes, Rule 56(c)(1), Ala. R. Civ. P., provides, in pertinent part:

“The [summary-judgment] motion shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority.”

Stallings’s summary-judgment motion stated, in its entirety:

“Defendant, Rodney Loring Stallings, moves the Court to enter, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, a summary judgment in the Defendant’s favor dismissing the action on the ground that there is no genuine issue as to any material fact and that the Defendant is entitled to a judgment as a matter of law.
“This motion is based upon the pleadings, the depositions of the parties and upon the failure of the Plaintiff to provide to the Defendant the name of any expert which she expects to call in support of the Plaintiffs claim against the Defendant.
“The Defendant adopts the brief and argument submitted by the co-defendant, Steve Lanier, in support of his motion for summary judgment.”

Coggin’s summary-judgment motion similarly provided, in its entirety:

“COMES NOW, Coggin & Stallings, LLC, (dissolved), and requests] the Court to enter, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, a summary judgment in its favor dismissing the action on the ground that there is no genuine issue [of] material fact and Defendant is entitled to a judgment as a matter of law.
“This motion is based upon the pleadings, the depositions of the parties, and upon the absence of any expert testimony to establish that the Defendant failed to meet the standard of care for rendering legal services in Alabama.
“Defendant respectfully adopts the brief and argument of Co-Defendant, Steve Lanier, in support of its summary judgment motion.”

Neither Stallings’s motion nor Coggin’s motion contains any statement of facts or any discussion of Roberts’s claims. This Court has stated:

“ ‘The [summary-judgment] movant has the initial burden of making a prima facie showing that there is no genuine issue of material fact; if the movant makes that showing, the burden then shifts to the nonmovant to present substantial evidence of each element of the claim challenged by the movant.’ Harper v. Winston County, 892 So.2d 346, 349 (Ala.2004) (emphasis added). However, if the movant does not satisfy his initial burden, ‘then he is not entitled to judgment. No defense to an insufficient showing is required.’ Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So.2d 686, 688 (1975) (emphasis added). ‘A motion that does not comply with Rule 56(c)[, Ala. R. Civ. P.,] does not require a response in defense from the nonmovant.’ Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala.2007). Simply stated, ‘ “[a] summary judgment is not proper if the movant has not complied with the requirements of Rule 56.” ’ 972 So.2d at 70 (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 277 (Ala.2000)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1054-55 (Ala.2008).

Coggin argues that its summary-judgment motion complied with Rule 56(c) because it attached to its motion “the brief and argument of Lanier, together with all submissions and referenced depositions of all parties,” Coggin’s brief, at 11, and incorporated them by reference. However, as Roberts notes, the Lanier defendants made no mention in their summary-judgment motion of Roberts’s claims against Stallings or Coggin, nor did they present any facts or arguments related to these claims. Merely incorporating by reference a motion that included no mention of, or facts or arguments related to, the claims against them was insufficient to bring Stallings’s and Coggin’s motions into compliance with Rule 56(c). “A summary-judgment movant does not discharge his initial burden to challenge the sufficiency of the evidence of a nonmovant’s claim by simply ignoring the claim.” White Sands, 998 So.2d at 1055. “A summary judgment is not proper if the movant has not complied with the requirements of Rule 56.” Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 277 (Ala.2000). Therefore, the circuit court erred in entering summary judgments in favor of Stallings and Coggin. We reverse those judgments and remand the case for further proceedings.

Conclusion

For the reasons stated above, we affirm the circuit court’s summary judgment in favor of the Lanier defendants with regard to Roberts’s request for a declaratory judgment and with respect to her claim that Lanier misrepresented to Roberts at the time the contract was executed that he was qualified to represent her in Alabama on the noncapital-murder charge.

However, we reverse the circuit court’s summary judgment in favor of the Lanier defendants with regard to Roberts’s claims that Lanier deceived her into executing the contract under the pretense that it was valid and enforceable, that Lanier misrepresented to Roberts that she would not be entitled to any refund of the retainer paid under' the contract if his representation was terminated, and that Lanier took Roberts’s funds for his personal use. We also reverse the circuit court’s summary judgments in favor of Stallings and Coggin. We remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Roberts also sued the Alabama State Bar. However, the circuit court determined that its judgments in favor of the other defendants rendered the claims against the Alabama State Bar moot. Roberts has not appealed that determination.

      . Lanier has conceded that the "nonrefundable retainer” language is prohibited in Alabama, that "the contract was 'unenforceable as written under Alabama law,' ” and "that retaining the entire fee without performing equivalent services would be prohibited.” Lanier and the firm’s brief, at 4 (emphasis in original).

      . See Rule VII, Rules Governing Admission to the Alabama State Bar.

      . Roberts alleges that the firm is liable for Lanier’s alleged misconduct under a theory of respondeat superior.

      . See supra note 1.

      . The Lanier defendants also argue that Roberts's claims against them fall within the scope of the ALSLA because Lanier was admitted pro hac vice in August 2006. It seems clear that, after he obtained pro hac vice status, Lanier qualified as a "legal-service provider” under the ALSLA. However, Roberts’s claims arise out of alleged misconduct that is said to have occurred before Lanier obtained such status. Nevertheless, because we have held that Roberts’s claims against the Lanier defendants are otherwise subject to the ALS-LA, we need not consider what, if any, retroactive effect Lanier’s pro hac vice admission had on the applicability of the ALSLA to Roberts’s claims.

      . Roberts also requested a judgment declaring that Lanier had violated several of the Alabama Rules of Professional Conduct and that the contract was void because Lanier was not licensed to practice law in Alabama at the time the contract was executed. Roberts has not raised these issues on appeal; therefore, we do not address them.

      . Roberts concedes that "[i]f the Lanier defendants were subject to the ALSLA, [then this] claim would be subsumed into the ALS-LA.” Roberts’s reply brief, at 13.

      . The Lanier defendants also argue that Roberts defeats her own claim that the alleged misconduct could not have been discovered before February 2009 by arguing that no expert testimony is needed to prove that the Lanier defendants breached the applicable standard of care. They argue:
      “[Roberts] insists that ... no expert testimony is needed to prove the violative nature of the 'non-refundable retainer’ clause, and of Lanier's alleged misrepresentation, because any lay juror could make that determination without the need for an expert. ... In other words, 'anybody,' whether an attorney or not, could tell readily that a nonrefundable retainer contract, and an allegation that such a contract is valid and enforceable, is wrong.
      "If that is the case, then [Roberts] (who has two degrees in radiological techniques) certainly should have realized that, or should have been put on inquiry to look into the matter further, at the very least; and because of the obvious nature of this representation (by [Roberts's] own contentions), she should have known and realized the falsity of the statement, just as any lay juror could have, according to her. Thus, not only has she testified herself out of a cause of action for fraud, she has destroyed her opportunity to rely on the 'savings’ provisions of the statutes of limitations. She should not be permitted to use this feigned ‘ignorance’ to further her cause.”
      The Lanier defendants’ brief, at 31-32.
      The Lanier defendants' argument is disingenuous and without merit. Roberts does not argue that a jury could tell that the nonrefundable-retainer language was unlawful on its face. Instead, she claims that, in light of the Lanier defendants’ concession that the non refundable-retainer language is invalid and unenforceable in Alabama, a jury could determine without expert testimony that Lanier’s alleged misrepresentation to the contrary constituted a breach of the standard of care.

      . "The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case.” § 6-5-572(3)a„ Ala.Code 1975.

      . Stallings has not filed a brief with this Court.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Leland M. WILSON v. CITY COUNCIL OF the CITY OF SARALAND; Mayor Ken Williams; and Joe McDonald, Newton Cromer, Sidney Butler, Howard Rubenstein, and Veronica Hudson, in their official capacities as members of the City Council of the City of Saraland.
    1091509.
    Supreme Court of Alabama.
    April 15, 2011.
    Rehearing Denied June 10, 2011.

      John W. Parker, Daphne, for appellant.
    Andrew T. Rutens of Galloway, Wetter-mark, Everest, Rutens & Gaillard, LLP, Mobile, for appellees.
   COBB, Chief Justice.

Leland M. Wilson, the plaintiff below, appeals from the order of the Mobile Circuit Court dismissing this case. We affirm.

Facts

A separate case, Leland M. Wilson v. City of Saraland, CV-07-1332 (“the separate case”), was set for trial on November 16, 2009, in the Mobile Circuit Court. The separate case involved a dispute between Wilson and the City of Saraland regarding a drainage problem on real property owned by Wilson. The November 16 trial setting was continued so that the City of Saraland could call a meeting of the city council to review a proposed engineering plan submitted by Wilson’s engineer that, if implemented, would resolve the drainage problem and allow the separate case to be settled. Wilson’s engineer’s plan was hand delivered to the city council on November 18, 2009.

On November 19, 2009, counsel for Sara-land sent the following letter to Wilson’s counsel:

“I am in receipt of your correspondence regarding attending the City Council meetings next week.... [A] workshop is scheduled for November 23, 2009 and the Council meeting is scheduled for November 30, 2009. Due to the time constraints in this case, the City Council plans to call a special Council meeting on November 23rd, at which time they will go into executive session to discuss this matter. I think that your presence at the workshop meeting next week would not be a good idea and may in fact hinder any chance of settling this case. In addition, you would not be allowed to attend the executive session anyway.”

Wilson did not attend the November 23 meeting of the Saraland City Council. According to the official minutes of the meeting, members of the city council Newton Cromer, Veronica Hudson, and Joe McDonald were in attendance. At the beginning of the open portion of the city-council meeting, other members of the public voiced their opposition to any plan to alleviate the drainage problem on Wilson’s property. The city council then voted to go into an executive session to discuss the drainage plan with its counsel. After the executive session concluded, the open meeting resumed. According to the official minutes, no additional business was addressed following the executive session, and the meeting adjourned. The minutes do not reflect that any vote was taken on whether to adopt the drainage plan prepared by Wilson’s engineer.

On November 24, 2009, counsel for Sara-land sent the following letter to Wilson’s counsel:

“Last night I attended the specially called Saraland City Council meeting to discuss the [drainage] fix proposal. As a result of discussions during the executive session and subsequent action by the City Council, the council has concluded that it does not want to undertake an agreement concerning [Wilson’s proposed drainage plan]. As a result, I do not see where mediation tomorrow would be fruitful and it is my position that going forward with mediation would be a waste of time based upon the impasse over the ... issue. As a result I would formally declare an impasse in any immediate further settlement and mediation talks.”

On December 14, 2009, Wilson filed in the Mobile Circuit Court a verified complaint against the Saraland City Council, Saraland Mayor Ken Williams, and Sara-land City Council members Joe McDonald, Newton Cromer, Sidney Butler, Howard Rubenstein, and Veronica Hudson (collectively, “the defendants”). In his complaint, Wilson alleged that, at the November 28, 2009, meeting of the Saraland City Council, the defendants violated various provisions of the Alabama Open Meetings Act, Ala.Code 1975, § 36-25A-1 et seq. Wilson requested relief in the form of an injunction invalidating the action he contends was taken at the November 28, 2009, council meeting with regard the drainage proposal. In addition, Wilson requested that the trial court “impos[e] appropriate civil penalties and expenses, as set forth in the Alabama Open Meetings Act.”

On January 13, 2010, the trial court held a preliminary hearing on the complaint pursuant to Ala.Code 1975, § 36-25A-9(a). During the hearing, the trial court asked Wilson’s counsel what Wilson ultimately wished to accomplish by filing the action against the defendants alleging a violation of the Open Meetings Act. Wilson’s counsel responded that “the Court can impose penalties if [it] find[s] a violation” of the Open Meetings Act and that what his client “primarily” wanted was an opportunity to present his drainage plan to the Saraland City Council. Without making any findings as to whether Wilson had carried his burden of proof at the preliminary hearing to show a violation of the Open Meetings Act, the trial court obtained the parties’ agreement that Wilson would be allowed to present his drainage plan at the next city-council meeting.

On January 14, 2010, the Saraland City Council held a meeting. According to Wilson, the matter of his drainage plan was called at the January 14, 2010, meeting, but no vote was taken on whether to adopt Wilson’s drainage plan.

On April 15, 2010, the trial court held a second preliminary hearing to determine, pursuant to Ala.Code 1975, § 36-25A-9(a) through (c), whether Wilson could meet the initial burden of proof to establish a violation of the Open Meetings Act and whether to set the matter for discovery and a hearing on the merits. At the April 15, 2010, preliminary hearing, the parties agreed that an open meeting of the Sara-land City Council had occurred on November 23, 2009, and that an executive session had been called during the November 23, 2009, city-council meeting. Wilson argued that the Saraland City Council violated the Open Meetings Act by excluding him from the open portion of the November 23, 2009, city-council meeting.

On April 20, 2010, the trial court entered the following order:

“A hearing pursuant to Ala. Code [1975,] § 36-25A-9, was held by this Court on April 15, 2010. Testimony was taken and counsel for [Wilson] and counsel for the Defendants were able to present their case. The Court has reviewed [Wilson’s] Complaint with attachments, and the Defendants’ Answer as well as the other pleadings of record in this case. In addition, the Court has taken into account the testimony provided at the hearing and the arguments from counsel. Based upon this information, the Court concludes that [Wilson] has not met his burden pursuant to Ala. Code [1975,] § 36-25A-9(b).
“As a result, this matter is DISMISSED as to all of the claims raised by [Wilson].”

(Capitalization in original.)

On May 20, 2010, Wilson filed a motion to alter, amend, or vacate the trial court’s judgment dismissing the case. On June 18, 2010, the trial court entered an order denying Wilson’s motion to alter, amend, or vacate the judgment. On July 30, 2010, Wilson filed a notice of appeal to this Court from the trial court’s judgment.

Analysis

To prevail at the preliminary hearing and be permitted to proceed with the case, Wilson was required to “present substantial evidence of one or more of the following claims”:

“(1) That the defendants disregarded the requirements for proper notice of the meeting pursuant to the applicable methods set forth in Section 36-25A-3.
“(2) That the defendants disregarded the provisions of this chapter during a meeting, other than during an executive session.
“(3) That the defendants voted to go into executive session and while in executive session the defendants discussed matters other than those subjects included in the motion to convene an executive session as required by Section 36-25A-7(b).
“(4) That, other than a claim under subdivisions (1) through (3), the defendants intentionally violated other provisions of [the Open Meetings Act].”

Ala. Code 1975, § 36-25A-9(b).

We review de novo the trial court’s determination as to whether Wilson presented substantial evidence of one or more of these claims at the preliminary hearing. Cf. Alabama Power Co. v. Aldridge, 854 So.2d 554, 560 (Ala.2002) (“We apply the same standard of review to a ruling on a motion for a [judgment as a matter of law] as the trial court used in initially deciding the motion. This standard is ‘indistinguishable from the standard by which we review a summary judgment.’ Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001). We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination.”). “Evidence is ‘substantial’ only if it is ‘of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Hathcock, 815 So.2d at 506 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

The Open Meetings Act requires that, “[e]xcept for executive sessions permitted in Section 36-25A-7(a) or as otherwise expressly provided by other federal or state statutes, all meetings of a governmental body shall be open to the public.” Ala.Code 1975, § 36-25A-1. On appeal, Wilson contends that he presented substantial evidence showing that the Sara-land City Council intentionally violated this requirement of the Open Meetings Act by excluding Wilson from the public portion of the November 23, 2009, city-council meeting.

The only evidence Wilson submitted at the preliminary hearing in support of his contention that he was excluded from the portion of the meeting open to the public was the November 19, 2009, letter from Saraland’s counsel to his own counsel. The parties do not dispute that the letter stated that Wilson’s attendance at the November 23, 2009, meeting “would not be good idea and may in fact hinder any chance of settling this case” and that Wilson would “not be allowed to attend the executive session” of the meeting.

However, nothing in the letter indicates that Wilson would be excluded or prohibited from attending the open portion of the meeting if he so desired. Thus, the letter does not constitute evidence, much less substantial evidence, that the defendants failed to hold a meeting that was “open to the public” as required by the Open Meetings Act, Ala.Code 1975, § 36-25A-1. See Ala. Code § 36-25A-2(7), defining “open or public portion of a meeting” (“The open or public portion of a meeting is that portion which has not been closed for executive session in accordance with this chapter ... and which is conducted so that constituents of the governmental body, ... persons interested in the activities of the governmental body, and citizens of this state could, if they desired, attend and observe.”); see also Ala.Code 1975, § 36-25A-9(b) (requiring that, in an action alleging a violation of the Open Meetings Act, the plaintiff must prove by substantial evidence “[t]hat, other than a claim under subdivisions (1) through (3), the defendants intentionally violated other provisions of [the Open Meetings Act]”).

On appeal, Wilson also contends that he presented substantial evidence that the defendants either deliberated or voted during the executive session of the November 23, 2009, city-council meeting, in violation of Ala.Code 1975, § 36-25A-5(b), and Ala. Code 1975, § 36-25A-7(a)(3), or that the defendants failed to record actions taken during the open portion of the public meeting as required by Ala.Code 1975, § 36-25A-4. In support of this contention, Wilson points out that the minutes of the November 23, 2009, city-council meeting reflect no action, votes, or discussion de-ing the open meeting following the executive session. However, in a letter dated November 24, 2009, Saraland’s counsel informed Wilson’s counsel that, “[a]s a result of discussions during the executive session and subsequent action by the City Council, the council has concluded that it does not want to undertake an agreement concerning [Wilson’s proposed drainage plan].”

The transcript of the April 15, 2010, preliminary hearing in this case reflects that the trial court asked Wilson’s counsel several times to state precisely his contention as to how the defendants violated the Open Meetings Act. In response, Wilson did not make any argument that the defendants either deliberated or voted during the executive session or that they failed to record actions taken during the open portion of the city-council meeting. Rather, Wilson stated plainly on the record that “the only issue before [the trial court]” was his contention that he was excluded from attending the public portion of the November 23, 2009, city-council meeting. Therefore, we will not consider Wilson’s arguments on appeal that the defendants violated Ala.Code 1975, § 36-25A-5(b), § 36-25A-7(a)(3), or § 36-25A-4. See Campbell v. Alabama Power Co., 567 So.2d 1222, 1225 (Ala.1990) (“It is well settled that issues not raised in the trial court may not later be raised on appeal.”).

For these reasons, the trial court correctly dismissed this action on the ground that Wilson did not meet his burden at the preliminary hearing in accordance with Ala.Code 1975, § 36-25A-9(b). We therefore affirm the judgment of the trial court.

AFFIRMED.

WOODALL, BOLIN, MURDOCK, and MAIN, JJ., concur.

      . In addition, Wilson was required to establish by a preponderance of the evidence that the Saraland City Council held a meeting on November 23, 2009, and that each of the defendants attended. See Ala.Code 1975, § 36-25A-9(b). Because we affirm the dismissal of this case on other grounds, we need not address in this opinion whether Wilson met his burden of showing that all the defendants attended the November 23, 2009, city-council meeting or the standard of review applicable to this issue.

      . “Unless otherwise permitted by this chapter or directed by provisions in the Constitution of Alabama of 1901, or other existing state law applicable to the governmental body, all votes on matters before a governmental body ... shall be made during the open or public portion of a meeting.... Unless permitted by this chapter, existing statute, or constitutional amendment, no votes shall be taken in executive sessions.” Ala.Code 1975, § 36-25A-5(b).

      . "(a) Executive sessions are not required by this chapter, but may be held by a governmental body only for the following purposes:

      "(3) To discuss with their attorney the legal ramifications of and legal options for pending litigation.... Notwithstanding the foregoing, if any deliberation begins among the members of the governmental body regarding what action to take relating to pending or threatened litigation based upon the advice of counsel, the executive session shall be concluded and the deliberation shall be conducted in the open portion of the meeting or the deliberation shall cease.”
      Ala.Code 1975, § 36-25A-7(a)(3).

      ."A governmental body shall maintain accurate records of its meetings, excluding executive sessions, setting forth the ... action taken at each meeting.” Ala.Code 1975, § 36-25A-4.


author: MURDOCK, Justice.

text:
    Annette F. JOHNSON v. Troy A. LAYTON, M.D., and SportsMed Orthopaedic Specialists, P.C., d/b/a SportsMed Orthopaedic Surgery & Spine Center.
    1091520.
    Supreme Court of Alabama.
    May 13, 2011.

      Michael L. Weathers, Florence, for appellant.
    George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
   MURDOCK, Justice.

Annette F. Johnson appeals from the Limestone Circuit Court’s summary judgment in favor of Troy A. Layton, M.D. (“Dr. Layton”), and SportsMed Orthopaedic Specialists, P.C., d/b/a SportsMed Or-thopaedic Surgery & Spine Center (“SportsMed”), in her medical-malpractice action. We affirm the judgment of the trial court.

I. Facts and Procedural History

On June 25, 2004, Johnson visited Dr. Layton, a board-certified orthopedic surgeon, at SportsMed, a medical group of which he was a member, for treatment of injuries Johnson had sustained to her left elbow, left arm, left wrist, and left hand. Dr. Layton and other personnel at SportsMed treated Johnson several times for those injuries over the next three years until her final visit on February 12, 2007.

On August 4, 2008, Johnson filed a medical-malpractice action against Dr. Layton, Dr. Saranya Nadella (another physician at SportsMed), and SportsMed, alleging that they had negligently and/or wantonly failed to properly diagnose and treat Johnson’s injuries and that this failure had resulted in the loss by Johnson of the use of her left elbow, left arm, left wrist, and left hand, as well as considerable pain and suffering. On November 6, 2008, Johnson filed her first amended complaint, specifically alleging that from the outset of her treatment she had related to Dr. Layton that she was experiencing pain, tingling, and numbness in the fingers of her left hand, a condition a subsequent doctor told her was indicative of an injury to the ulnar nerve in her left arm. She averred in her complaint that Dr. Layton denied that Johnson ever told him that she was experiencing those symptoms and that he had related that her medical records did not indicate that she ever mentioned such symptoms. Johnson charged that Dr. Layton’s failure

“to record the symptoms of damage and injury to the ulnar nerve in [Johnson’s] left arm, specifically, the pain, tingling, and numbness in the little finger and ring finger of [Johnson’s] left hand as well [Johnson’s] loss of use of her left hand, in [Johnson’s] medical records evidences Dr. Layton’s failure to diagnose and treat the damage and injury to the ulnar nerve of [Johnson’s] left arm.”

On July 21, 2009, Dr. Nadella filed a motion for a summary judgment as to all claims against her. On September 16, 2009, SportsMed moved for a partial summary judgment as to all vicarious-liability claims against it based on Dr. Nadella’s acts or omissions. Johnson did not oppose those motions, and the trial court entered an order on October 30, 2009, granting both motions.

On February 9, 2010, Dr. Layton and SportsMed filed a motion for a summary judgment as to the remaining claims in the medical-malpractice action. They supported the motion with an affidavit from Dr. Layton. In the affidavit, Dr. Layton affirmed that he had “personal knowledge of all the matters stated herein.” The affidavit further provided, in pertinent part:

“I first examined the plaintiff on June 25, 2004 for complaints of pain in her elbow. She was seen on several occasions in my office. The care and treatment I provided to Annette Johnson was appropriate and was within accepted standards of care for an orthopedic surgeon. At no time did I deviate from or fall below any standard of care.
“It is my further opinion that the plaintiffs alleged injuries and damages for which she seeks recovery in this litigation are unrelated to any alleged negligent act or violation of the standard of care on my part. Simply stated, the plaintiff did not suffer any of the injuries and damages for which she seeks a recovery in this litigation because of any care or treatment I provided or documentation in my office chart. None of the plaintiff’s alleged injuries were caused by my care.
“It is my further opinion that none of the plaintiffs alleged injuries or damages were caused by' any of the care provided by any employee or agent of the defendant designated as [SportsMed].”

(Emphasis added.) On March 9, 2010, the trial court set April 16, 2010, as the date for a hearing on the pending motion for a summary judgment.

On April 13, 2010, Johnson filed a motion to strike Dr. Layton’s affidavit, contending that it did not comply with Rule 56(e), Ala. R. Civ. P., because the affidavit mentioned Johnson’s medical records — a reference to the portion of the affidavit emphasized above concerning “documentation in my office chart” — but Dr. Layton failed to attach Johnson’s medical chart to his affidavit. Also on April 13, 2010, Johnson filed her response in opposition to Dr. Layton and SportsMed’s summary-judgment motion. Johnson’s sole contention in her response was that because Dr. Layton’s affidavit was due to be stricken, the “burden of proof never shifted” to Johnson; thus, she argued, she was “not required to substantively oppose” Dr. Layton and SportsMed’s motion for a summary judgment.

On April 14, 2010, Dr. Layton and SportsMed filed their reply to Johnson’s response. In their reply, Dr. Layton and SportsMed contended that Dr. Layton’s affidavit relied upon Dr. Layton’s personal knowledge of his treatment of Johnson and his professional medical opinion, not upon documents that were not attached to the affidavit. Nonetheless, Dr. Layton and SportsMed submitted with their reply over 100 pages of Johnson’s medical records.

On April 15, 2010, Johnson filed what she styled a “Notice Pursuant to Rule 56(c)(2)[, Ala. R. Civ. P.,] that she does not consent to [the] hearing” scheduled for April 16, 2010, regarding the motion for a summary judgment. In this filing, Johnson contended that by filing Johnson’s medical records two days before the hearing, Dr. Layton and SportsMed “failed to comply with the pertinent provisions of Rule 56(c)(2) of Ala. R. Civ. P.” Johnson stated that because of this failure, she “does not consent to this Honorable Court’s hearing Dr. Layton’s and SportsMed’s Motion For Summary Judgment at 10:00 a.m. on Friday, April 16, 2010.”

Despite Johnson’s filing, the trial court held the hearing as scheduled. Following the conclusion of the hearing, the trial court, on April 16, 2010, entered an order that provided that, “[h]aving considered the motion and the material offered in support thereof, the Court is of the opinion that the motion is well taken and due to be granted.” Accordingly, the trial court entered a judgment in favor of Dr. Layton and SportsMed as to all claims against them.

On May 16, 2010, Johnson filed a motion to alter, amend, or vacate the trial court’s summary judgment in favor of Dr. Layton and SportsMed on all of her claims. Johnson’s sole contention in that postjudgment motion consisted of a reiteration of the argument she presented in her opposition to Dr. Layton and SportsMed’s motion for a summary judgment.

On June 14, 2010, the trial court entered an order denying Johnson’s postjudgment motion. Johnson then filed a timely appeal.

II. Standard of Review

“To grant a motion for a summary judgment, the court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Mitchell v. Richmond, 754 So.2d 627, 628 (Ala.1999). If the party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Id. at 628.”

Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 752 (Ala.2002).

III. Analysis

On appeal, Johnson relies upon the same two arguments she expressed to the trial court as to why a summary judgment should not have been entered against her. First, she contends that Dr. Layton’s affidavit should have been stricken because Dr. Layton failed to attach documents referred to in the affidavit. Without Dr. Layton’s affidavit, Johnson insists, Dr. Layton and SportsMed failed to make a prima facie showing that no genuine issues of material fact exist, and, therefore, the burden never shifted to her to present a substantive response to their summary-judgment motion. Second, Johnson contends that the trial court committed reversible error by holding a hearing on Dr. Layton and SportsMed’s motion for a summary judgment two days after they filed copies of her medical records despite the fact that she expressly stated in accordance with Rule 56(c)(2), Ala. R. Civ. P., that she did not consent to the hearing.

Rule 56(e), Ala. R. Civ. P., provides:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or paHs thereof refemd to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.”

(Emphasis added.)

Johnson contends that in his affidavit Dr. Layton referred to “documentation in my office chart” but failed to attach a copy of Johnson’s medical chart to his affidavit and that this failure was fatal to Dr. Lay-ton’s affidavit. According to Johnson, the trial court should have stricken Dr. Lay-ton’s affidavit, leaving Dr. Layton and SportsMed without evidentiary support for their motion for a summary judgment. Johnson argues that the failure to attach her medical chart to the affidavit was particularly egregious, given that she specifically alleged in her amended complaint that Dr. Layton’s failure to record in her medical chart the symptoms she related to him was indicative of his failure to render acceptable care.

Dr. Layton and SportsMed counter that a plain reading of Dr. Layton’s affidavit shows that he did not rely upon Johnson’s medical chart in expressing his opinion in his affidavit about the medical care he rendered. Instead, as the affidavit states, Dr. Layton relied upon “his personal knowledge” of the medical care he provided to Johnson and upon his “familiarity] with the standard of care required of board certified orthopedic surgeons treating patients similar to Annette Johnson.” According to Dr. Layton and SportsMed, Dr. Layton did not attach Johnson’s medical chart to his affidavit initially because the reference to “documentation in my office chart” was made only in passing, as the sentence in which it is used indicates: “Simply stated, [Johnson] did not suffer any injuries and damages for which she seeks a recovery in this litigation because of any care or treatment I provided or documentation in my office chart.”

A plain reading of Dr. Layton’s affidavit confirms Dr. Layton and SportsMed’s contention that Dr. Layton did not focus or rely upon Johnson’s medical chart in expressing his opinion that his treatment met the standard of care for orthopedic surgeons. Indeed, Johnson does not argue that Dr. Layton relied upon her medical chart for the opinion expressed in his affb davit; she argues only that he referred to her chart and that Rule 56(e), Ala. R. Civ. P., mandates that any reference to outside materials requires that a sworn or certified copy of those materials be attached to the affidavit. The pertinent question that arises from the parties’ arguments on this issue, therefore, is whether Dr. Layton’s reference in his affidavit to “documentation in my office chart” required the attachment of Johnson’s medical chart to the affidavit in order for the affidavit to be admissible evidentiary support for Dr. Layton and SportsMed’s motion for a summary judgment. An examination of our cases addressing this issue indicates that it did not.

In Welch v. Houston County Hospital Board, 502 So.2d 340 (Ala.1987), this Court noted:

“In Oliver v. Brock, [342 So.2d 1, 4-5 (Ala.1976) ], this Court held as follows:
“ ‘Mrs. Oliver contends in her affidavit that she has reviewed the chart prepared by the defendant physicians stating the names of the doctors who treated her daughter. She says she has read on the “discharge summary” that Dr. Brock was consulted and assisted in prescribing the treatment of her daughter. However, that document is not made a part of the record. [Ala. R. Civ. P.] 56(e) requires that sworn or certified copies of all papers or parts thereof referred to in [answers to interrogatories or depositions] (in support of or in opposition to a motion for summary judgment) shall be attached thereto or served therewith.
“ ‘ “... This means that if written documents are relied upon they actually must be exhibited; [answers to interrogatories or depositions] that purport to describe a document’s substance or an interpretation of its contents are insufficient. ...” Wright & Miller, Federal Practice and Procedure: Civil § 2722.’”

502 So.2d at 343 (emphasis omitted; emphasis added). Thus, this Court on two separate occasions has endorsed the interpretation in Wright and Miller’s treatise of the document-attachment requirement in Rule 56(e) that if the documents referred to are relied upon by the affiant, then they must be attached to the affidavit. Application of the rule in subsequent cases bears out this interpretation.

In Ex parte Head, 572 So.2d 1276 (Ala.1990), this Court stated, in pertinent part:

“Strauss’s testimony regarding the relationships among the defendants, purportedly made ‘from personal knowledge’ gained from the records of the probate court, does not comply with the requirements of Rule 56(e) and, therefore, is inadmissible in support of Thistle’s motion for summary judgment. Despite Rule 56(e)’s mandate that affidavit testimony ‘set forth such facts as would be admissible in evidence,’ no copies of the probate records from which Strauss gained her ‘personal knowledge’ were provided with Strauss’s affidavit in support of her allegations regarding the defendants. The total absence of copies of the probate records referred to by Strauss rendered inadmissible her statements based on these documents.”

572 So.2d at 1281 (emphasis added). In Head, the affiant relied upon probate-court records for her “personal knowledge” of the relationship among the defendants, but she failed to attach the probate-court records to her affidavit, rendering the affidavit inadmissible. In contrast, Dr. Layton relied upon his personal knowledge of the treatment he provided to Johnson for his opinion as to the standard of care he rendered.

In Pettigrew v. LeRoy F. Harris, M.D., P.C., 681 So.2d 839 (Ala.1993), this Court explained:

“Dr. Harris also moved to strike Dr. Musher’s affidavit on the ground that the facts on which an expert bases his opinion must be facts that are in evidence. Dr. Harris argued that, because the medical records on which Dr. Musher’s opinion were based were not introduced into evidence, they are inadmissible hearsay and, therefore, that the opinion relying on them is also inadmissible. Although the trial judge granted the motions to strike these affidavits, he gave the Pettigrews additional opportunities to respond appropriately to the motion for summary judgment filed by Dr. Harris.
“The issue before this Court is whether the trial court committed reversible error by granting Dr. Harris’s motion to strike directed towards the material filed in opposition to Dr. Harris’s pending motion for summary judgment. More specifically, the Pettigrews argue that Dr. Musher’s affidavit should not have been stricken, because, they say, Ala. R. Civ. P. 56(e) requires only that an expert opinion be based on evidence that would be admissible at trial, and, they argue, such evidence need not be admitted at the time for the ruling on the motion for summary judgment.
“Rule 56(e) governs what must be filed with affidavits in support of, and in opposition to, a motion for summary judgment....
“The Pettigrews focus on the first [requirement] of Rule 56(e). They contend that the hospital records relied upon by Dr. Musher would be admissible at trial, and, therefore, that the affidavit complies with the rule and should be considered in opposition to Dr. Harris’s motion for summary judgment. However, it is the second [requirement] of the rule that is at issue. That sentence is a mandatory provision. That sentence provides that ‘sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.’ ‘The total absence of copies of the [hospital] records referred to by [Dr. Musher] rendered inadmissible [his] statements based on [those] documents.’ Ex parte Head, 572 So.2d 1276, 1281 (Ala.1990).”

681 So.2d at 841 (emphasis omitted). Again, in Pettigrew a doctor failed to attach to an affidavit medical records upon which the affiant expressly and solely relied for his expert opinion.

In a fact situation similar to the one in Pettigrew, this Court reached a similar conclusion. In Waites v. University of Alabama Health Services Foundation, 638 So.2d 838 (Ala.1994), this Court stated:

“The defendants counter Waites’s contentions by arguing that Dr. Kirshenb-aum’s affidavit was defective because, they say, ‘it consisted of opinions based on his review of medical records which were not in evidence, properly authenticated, or attached to or served with the affidavit.’ We agree.
“The testimony of Waites’s expert was proffered in opposition to the defendants’ properly supported Rule 56, [Ala.] R. Civ. P., motion for summary judgment. It was necessary, then, that Dr. Kirshenbaum’s affidavit meet the requirements of Rule 56(e)....
“This Court, in Ex parte Head, 572 So.2d 1276 (Ala.1990), held that ‘the requirements of Rule 56(e) are mandatory.’ Although the Head decision dealt with the provisions of Rule 56(e) requiring that the affidavit ‘be made on personal knowledge’ and that it ‘set forth such facts as would be admissible in evidence,’ our holding that the requirements of Rule 56(e) are mandatory certainly can not be limited to those two requirements. Indeed, the two further requirements — that the affidavit ‘show affirmatively that the affiant is competent to testify to the matter stated therein’ and that ‘[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith’ — are no less critical in testing the propriety of an affidavit in support of, or in opposition to, a summary judgment motion.
“We hold, therefore, that because no medical records were attached to or served with the affidavit of Dr. Kir-shenbaum, the affidavit was properly disregarded by the trial court.”

638 So.2d at 842 (emphasis added).

The decisions from Welch, Head, Pettigrew, and Waites demonstrate that an affi-ant must submit with his or her affidavit documents that he or she has relied upon in rendering the opinion expressed in the affidavit. As indicated, a plain reading of Dr. Layton’s affidavit shows that his mention of “documentation in my office chart” was not a statement that he relied upon Johnson’s chart for his opinion that he met the standard of care for orthopedic surgeons in providing medical treatment to Johnson. Therefore, Dr. Layton’s affidavit did not violate the requirement of Rule 56(e), and the trial court did not err in declining to strike his affidavit.

In light of our decision that it was not necessary for Dr. Layton to attach to his affidavit the medical chart at issue, we pretermit discussion of Johnson’s argument that Dr. Layton and SportsMed’s submission of her medical records two days before the hearing on the motion for a summary judgment violated Rule 56(c)(2), Ala. R. Civ. P.

The trial court’s judgment is affirmed.

AFFIRMED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . In her first amended complaint, Johnson related that,
      ”[a]fter Dr. Layton released [Johnson, she] went to another doctor who diagnosed the damage and injury to the ulnar nerve in [Johnson’s] left arm. The new doctor performed an ulnar nerve release/transposition surgical procedure on [Johnson's] left elbow which resulted in dramatic and radical improvement in [Johnson's] left arm and hand and [Johnson’s] regaining the use of her left hand.”

      . Now 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, 380-81 (1998).