author: PARKER, Justice.

text:
    AMERICAN SUZUKI MOTOR CORPORATION v. John BURNS and Jill S. Hearn.
    1081605.
    Supreme Court of Alabama.
    Sept. 23, 2011.

      Jere F. White, Jr., Sara Anne Ford, and Madeline H. Haikala of Lightfoot, Franklin & White, L.L.C., Birmingham; and Charles J. Kelley of Holt, Mussleman, Kelley & Morgan, Florence, for appellant.
    Steven D. Tipler, Birmingham; and Harold G. Peck, Florence, for appellees.
   PARKER, Justice.

American Suzuki Motor Corporation (“American Suzuki”) petitioned this Court for a writ of mandamus directing the Lauderdale Circuit Court to grant its motion to dismiss, on the basis of Rule 12(b)(1), Ala. R. Civ. P., or Rule 12(b)(6), Ala. R. Civ. P., the claims filed against it by John Burns and Jill S. Hearn (hereinafter referred to collectively as “the plaintiffs”). “The denial of a motion to dismiss ... generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity.” Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003) (citing Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002)). Furthermore, “[t]he denial of a Rule 12(b)(6) motion is not appealable unless this Court has granted permission to appeal pursuant to Rule 5, Ala. R.App. P.” Conseco Fin. Corp. v. Sharman, 828 So.2d 890, 894 (Ala.2001) (citing Robinson v. Computer Servicenters, Inc., 360 So.2d 299 (Ala.1978)). We conclude that the plaintiffs’ claims against American Suzuki are due to be dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Ala. R. Civ. P., and we treat American Suzuki’s petition as a petition for permission to appeal pursuant to Rule 5, Ala. R.App. P. We grant the permission, and we reverse the trial court’s order denying American Suzuki’s motion to dismiss and remand the cause for the trial court to enter an order granting that motion.

Facts and Procedural History

On March 23, 2009, the plaintiffs sued American Suzuki and Varsity Suzuki, Inc. (“Varsity Suzuki”), and Shoals Suzuki, Inc. (“Shoals Suzuki”), local Suzuki dealerships, and Charles Gary Linam, the owner of the dealerships (hereinafter sometimes referred to collectively as “the defendants”), alleging breach of contract based on Suzuki vehicle warranties, diminution in value of their vehicles, fraudulent misrepresentations, and unjust enrichment. The plaintiffs purported to bring the action on behalf of themselves and all members of a class composed of individuals who had purchased Suzuki vehicles from the defendants and who have active warranties or service contracts on those vehicles.

According to the complaint, new Suzuki vehicles carry a manufacturer’s warranty that provides, among other things, a bumper-to-bumper warranty for 3 years or 36,000 miles and a power-train warranty for 7 years or 100,000 miles. The complaint further alleged that the defendants also sold purchasers of Suzuki vehicles extended warranties and maintenance agreements.

The plaintiffs alleged that they own Suzuki vehicles that were sold to them by the defendants and that they have active warranties on those vehicles. The plaintiffs further alleged that, in early March 2009, “the defendants closed dealerships in Lauderdale, Colbert, and Madison Counties, Alabama, and [that] there are no other Suzuki dealerships closer than Nashville, Tennessee, Murfreesboro, Tennessee, or Birmingham, Alabama, to perform service work on the warranted vehicles.” As a result of the dealerships being closed, the plaintiffs alleged, they were “constructively barred from obtaining warranty work on their vehicles”; all the plaintiffs’ claims derive from that allegation. The plaintiffs sought damages and requested that the defendants “be required to provide such services as are reasonably necessary to provide warranty work as contracted by plaintiffs.” The plaintiffs also sought the establishment of “a common fund ... to fund the performance required under the warranties for future service.” The complaint does not allege that either of the plaintiffs needed or sought service under the warranties on their vehicles or that any of the defendants refused to hon- or the warranties on the plaintiffs’ vehicles.

In late April 2009, American Suzuki entered into a warranty-service-provider agreement with Bentley Auto, Inc., d/b/a Bentley Suzuki Service, in Madison County. Under the agreement, Bentley Auto provides warranty service for Suzuki vehicles at a dealership in Madison County that is commonly referred to as Bentley Hyundai. American Suzuki submitted to the trial court a copy of that agreement and copies of letters American Suzuki had mailed to owners of certain Suzuki vehicles informing them of the availability of warranty service at Bentley Hyundai. American Suzuki also submitted to the trial court a press release and a newspaper advertisement that announced the availability of warranty service on Suzuki vehicles at Bentley Hyundai.

On May 18, 2009, American Suzuki filed a motion to dismiss, alleging that the plaintiffs’ claims against it should be dismissed under either Rule 12(b)(1), Ala. R. Civ. P., for lack of subject-matter jurisdiction or Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief can be granted. The plaintiffs did not file a response to American Suzuki’s motion to dismiss. As an attachment to its motion to dismiss, American Suzuki submitted copies of the applicable warranty booklets. Those booklets provide, in relevant part:

“OBTAINING WARRANTY SERVICE
“To obtain warranty service take your vehicle to the nearest SUZUKI Dealer. Present this Warranty Information Booklet. SUZUKI Dealers will perform the necessary repairs or adjustments within a reasonable amount of time and furnish you with a copy of the repair order.
“EMERGENCY REPAIRS
“SUZUKI recognizes that your vehicle may develop a serious problem needing immediate repair. If a SUZUKI Dealer is not reasonably available, warranty repairs (excluding major overhauls) may be performed at a facility other than a SUZUKI Dealer. For reimbursement consideration, present the following to your SUZUKI Dealer:
“• A copy of the vehicle registration
“• A statement of the circumstances
“• A copy of the paid receipts, indicating work performed
“• All replaced parts
“When appropriate, the dealer will reimburse you for parts at the current manufacturer’s suggested retail price, and you will be reimbursed for labor at an appropriate labor rate based on SUZUKI’S time allowance.”

(Capitalization in original.)

After holding a hearing, the trial court denied American Suzuki’s motion to dismiss on July 7, 2009. American Suzuki petitioned this Court for a writ of mandamus. The trial court stayed all proceedings in that court pending the resolution of the mandamus petition, which, as noted, we are treating as a petition for a permissive appeal. See supra note 1.

Standard of Review

“On appeal, a [trial court’s ruling on a motion to dismiss] is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Discussion

In their complaint below and in their submission to this Court, the plaintiffs allege that, when the local dealerships closed, “the defendants constructively breached the warranty.” As noted, all the plaintiffs’ claims against American Suzuki are derivative of that constructive-breach-of-warranty allegation.

Constructive breach of warranty has not been recognized as a cognizable legal theory in Alabama. Furthermore, we have found no case in any jurisdiction in which constructive breach of warranty has been recognized as a cognizable legal theory. It is well settled that a plaintiffs complaint must plead a cognizable legal theory to defeat a motion to dismiss filed pursuant to Rule 12(b)(6). See Anonymous v. Anonymous, 672 So.2d 787, 788 (Ala.1995) (“ ‘[A] complaint should not be dismissed for failure to state a claim unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief under some cognizable theory of law.’ ” (quoting Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984) (emphasis added))); Fitzjarrald v. City of Huntsville, 597 So.2d 1378, 1379 (Ala.Civ.App.1992) (“ ‘[I]f under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief can be granted,’ it should not be dismissed.” (quoting Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985) (emphasis added))); see also Shandong Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir.2010) (“The court’s task [in ruling on a motion to dismiss pursuant to Rule 12(b)(6), Fed. R.Civ.P.,] is to determine whether the plaintiff has stated a legally cognizable claim that is plausible.... ” (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009))); Trustees of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572 F.3d 771, 775 (9th Cir.2009) (noting that a ruling on a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., “ ‘is an adjudication as to whether a cognizable legal claim has been stated’ ” (quoting 5B Wright & Miller, Federal Practice and Procedure § 1350 (3d ed.2004))); Troxelle v. United States, 319 Fed.Appx. 176, 178 (3d Cir.2009) (not selected for publication in the Federal Reporter) (affirming the district court’s order dismissing the complaint because “the complaint is legally unintelligible in that it lacks an arguable basis in law or cognizable cause of action” (citing Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989))); York v. Association of the Bar of City of New York, 286 F.3d 122, 125 (2d Cir.2002) (“To survive a motion to dismiss [pursuant to Rule 12(b)(6), Fed.R.Civ.P.], ... the complaint must allege facts which, assumed to be true, confer a judicially cognizable right of action.”); Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 93 (1st Cir.2000) (“The complaint will survive as long as it pleads sufficient facts to warrant recovery on any cognizable theory of the case.” (citing Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992))).

Furthermore, claims that are based on the breach of a manufacturer’s warranty to repair a good or to render certain services do not arise until the manufacturer actually fails or refuses to perform its obligation to repair the good or to render a service under the warranty. See Brown v. General Motors Corp., 14 So.3d 104, 113 (Ala.2009) (holding that a claim alleging breach of an automobile manufacturer’s repair warranty accrues “at the time the manufacturer breaches its contractual obligation to repair that good” and that, “before the manufacturer has failed or refused to repair any defects that might subsequently occur during the warranty period, the owner would have no right to commence an action”); see also Seybold v. Magnolia Land Co., 376 So.2d 1083, 1085 (Ala.1979) (holding that, when a party has contractually agreed to do a particular thing, a breach of the contract does not occur until the party fails to do the particular thing he or she has agreed to do); General Motors Corp. v. Green, 173 Ga.App. 188, 190, 325 S.E.2d 794, 796 (1984) (“ ‘ “[Wjhere there is an agreement to repair or replace, the warranty is not breached until there is a refusal or failure to repair.... ‘[I]t is the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy which would constitute a breach of warranty.’ ” ’ ” (quoting other cases and quoted with approval in Brown, 14 So.3d at 112)). However, in this case, the plaintiffs have not alleged either that they ever needed or sought warranty service or that they were ever denied warranty service for their vehicles.

In short, because the plaintiffs have failed to plead a legal theory that is recognized in this state, or, for that matter, in any jurisdiction, and because the plaintiffs have neither sought nor been denied service for their vehicles under the warranties, the plaintiffs have failed to state a claim upon which relief can be granted. Thus, the trial court erred by denying American Suzuki’s motion to dismiss the plaintiffs’ complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P.

Conclusion

Based on the foregoing, we reverse the trial court’s order denying American Suzuki’s motion to dismiss, and we remand the cause for the trial court to enter an order granting American Suzuki’s motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MALONE, C.J., and STUART, BOLIN, MURDOCK, MAIN, and WISE, JJ., concur.

      . Rule 5(a), Ala. R.App. P., provides:
      "A party may request permission to appeal from an interlocutory order in civil actions under limited circumstances. Appeals of interlocutory orders are limited to those civil cases that are within the original appellate jurisdiction of the Supreme Court. A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.”
      The trial court has not issued the certification required by Rule 5(a), Ala. R.App. P.; however, ‘‘[i]n the interest of expediting decision,” Rule 2(b), Ala. R.App. P., and of "assurpng] the just, speedy, and inexpensive determination of every appellate proceeding on its merits,” Rule 1, Ala. R.App. P., this Court has suspended the requirements of Rule 5 in this appeal. See Ex parte Burch, 730 So.2d 143, 146 (Ala.1999) ("[Tjhis Court has recognized that it has the discretion to treat a mandamus petition ... as being, in reality, a petition for permission to appeal pursuant to Rule 5, Ala. R.App. P.”); Mashner v. Pennington, 729 So.2d 262, 262 (Ala.1998) (“We treated the mandamus petition as a petition for permission to appeal (see Rule 5, Ala. R.App. P.), and we granted that permission.”).

      . According to the complaint, when the plaintiffs purchased their Suzuki vehicles Linam owned and operated Varsity Suzuki in Madison County and Shoals Suzuki in both Colbert County and Lauderdale County. In its mandamus petition, American Suzuki states that the correct name of the dealership in Madison County owned by Linam was Suzuki of Huntsville and that Varsity Suzuki is actually located in Tupelo, Mississippi. It appears that Linam owned all three dealerships.

      . The complaint states that Burns is a resident of Colbert County and that Hearn is a resident of Lauderdale County.

      . The plaintiffs’ breach-of-contract claim alleges that the defendants “have constructively breached the duty to perform warranty services in a reasonably efficient manner by closing all dealerships located in North Alabama and closing all service departments and have provided no reasonable, alternative means of obtaining warranty service to the plaintiffs.” The diminution-of-value claim alleges that the value of the plaintiffs’ vehicles was diminished “as a result of the breach of warranty by the defendants and the failure to provide warranty services in a reasonable manner.” The fraudulent-misrepresentation claims are based on allegations that the defendants "represented to plaintiffs that the vehicles would be warranted by defendants and that service under the terms of the warranty could be obtained from the local dealership where the automobiles were purchased” and "assured plaintiffs that service would be available locally at the dealerships when needed.” Lastly, the unjust-enrichment claim alleges that “the defendants would be unjustly enriched if allowed to keep the money which was prepaid in advance for services to be rendered and warranty work."

      . We note that Rule 12(b)(6), Ala. R. Civ. P., is identical to its federal counterpart, Rule 12(b)(6), Fed.R.Civ.P., in that both rules provide that a party may assert by motion the defense of “failure to state claim upon which relief can be granted.” As we have often stated, we look to the federal courts' interpretation of the Federal Rules of Civil Procedure when those rules are similar to our own. See Kissic v. Liberty Nat'l Life Ins. Co., 641 So.2d 250, 251 (Ala.1994).


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    David VANDENBERG and Elizabeth Beene, individually and for a class of similarly situated persons v. ARAMARK EDUCATIONAL SERVICES, INC., et al. Chloe Compton, Morgan Peppers, and Leigh Ellen Black, individually and for a class of similarly situated persons v. Compass Group, USA, Inc., d/b/a/ Chartwells, et al. John Lane and Natalie Smith, individually and for a class of similarly situated persons v. Sodexo, Inc., et al.
    1100557, 1100560, and 1100561.
    Supreme Court of Alabama.
    Sept. 30, 2011.

      G. Daniel Evans and Alexandria Parrish of The Evans Law Firm, P.C., Birmingham; and John F. Whitaker of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham, for appellants.
    Michael F. Walker and John E. Goodman of Bradley Arant Boult Cummings LLP, Birmingham; and Thomas 0. Barnett, F. Chadwick Morriss, Gregory C. Padgett, and Jesse A. Gurman of Coving-ton & Burling LLP, Washington, D.C., for appellees Aramark Educational Services, Inc., and Aramark Educational Services, LLC.
    Norma M. Lemley and Michael I. Spearing, office of counsel, University of Alabama System, Tuscaloosa; and Cary T. Wahleim, office of counsel, University of Alabama System, Birmingham, for appel-lees the Board of Trustees for the University of Alabama and C. Ray Hayes.
    Maibeth J. Porter and Bonnie B. Monroe of Maynard, Cooper & Gale, P.C., Birmingham; and William C. Mayberry and Joshua D. Davey of McGuireWoods, LLP, Charlotte, North Carolina, for appellees Compass Group USA, Inc., d/b/a Chart-wells, and Thompson Hospitality Services, LLC.
    David R. Boyd and Dorman Walker of Balch & Bingham LLP, Montgomery; and Lee F. Armstrong, gen. counsel, Auburn University, Auburn, for appellees Auburn University, Sarah B. Newton, and Dr. Donald L. Large.

      Michael L. Bell, J. Gorman Houston, Jr., Enrique J. Giménez, and James W. Gibson of Lightfoot, Franklin & White, LLC, Birmingham; Thomas G. Slater, Jr., of Hun-ton & Williams LLP, Richmond, Virginia; and Walfrido J. Martinez, Ryan A. Shores, and Hillary E. Maki of Hunton & Williams LLP, Washington D.C., for appellees So-dexo, Inc., and Sodexo Operations LLC.
   STUART, Justice.

On August 11, 2010, students and former students (hereinafter referred to as “the students”) of the University of Alabama (“UA”), Auburn University (“Auburn”), and the University of Alabama at Birmingham (“UAB”) (hereinafter referred to collectively as “the universities”) filed three separate class-action lawsuits in the Jefferson Circuit Court challenging the legality of so-called “dining-dollars” programs implemented by the universities and pursuant to which all undergraduate students are required to pay a mandatory dining fee each semester, which is then credited back to the students in the form of “dining dollars” that could be spent only at on-campus dining outlets controlled exclusively by the food-service vendors for the universities — Aramark Educational Services, Inc., at UA; Compass Group, USA, Inc., d/b/a/ Chartwells at Auburn; and Sodexo, Inc., at UAB (hereinafter referred to collectively as “the food-service vendors”). On December 29, 2010, the trial court dismissed the three actions, and the students now appeal. We have consolidated the three appeals for the purpose of writing one opinion. We affirm.

I.

In 1992, UA hired the Cornyn Fasano Group (“CFG”), a food-service-management consulting firm, to study the dining services available at UA and to make recommendations on how to better administer those services. CFG submitted its final report to UA in July 1995, and among the recommendations made in that report were the recommendations that UA implement a mandatory dining fee for all full-time undergraduate students and that UA contract with a third-party company to administer all food services on the UA Tuscaloosa campus.

Approximately a month after receiving the CFG report, UA issued a notice requesting proposals from vendors interested in operating its on-campus food services. Aramark submitted a proposal in October 1995 and, in June 1996, entered into a contract with UA to operate all food services on the UA Tuscaloosa campus, including vending machines, traditional dining halls for students living on campus, and other restaurant and café outlets. Pursuant to the terms of the contract, Aramark made an initial payment to UA to help finance the renovation of campus dining facilities and also agreed to pay UA an annual commission on all on-campus food sales with a minimum annual guaranteed return. In turn, UA agreed to provide Aramark use of all on-campus dining facilities and to complete renovations of certain facilities. UA also agreed to impose a mandatory dining fee upon all full-time undergraduate students in the amount of $200 per semester, which would be credited back to the students as dining dollars. Students could then access the dining dollars in their accounts by swiping their student ID cards as payment at the Ara-mark outlets on campus. At the conclusion of the academic year, students with unspent dining dollars could request a refund of those remaining funds.

In subsequent years, UAB and Auburn each decided to revamp their on-campus food services in a similar fashion. In June 2005, UAB entered into a contract with Sodexo that was substantially similar to the contract UA had entered into with Aramark — Sodexo provided funds for the renovation and/or construction of on-campus dining facilities and agreed to pay UAB a commission on all food sold by Sodexo while UAB granted Sodexo exclusive control of all food services at UAB. UAB also implemented a dining-dollars program pursuant to which each full-time undergraduate student was charged a mandatory dining fee of $225 each semester, then credited back an equal amount of dining dollars to be used exclusively at Sodexo outlets on campus.

Auburn thereafter implemented its own dining-dollars program beginning with the freshman class entering in the fall semester of 2008. In July 2007, Auburn entered into a contract with Chartwells, pursuant to which Chartwells was made the exclusive provider of food services at Auburn in return for paying Auburn a commission on all food-service sales and helping to fund capital improvements to on-campus dining facilities. Auburn agreed to begin imposing a mandatory dining fee of $995 per semester upon all students living on campus and $800 per semester upon those students living off campus. An amount equal to that fee was then placed in a dining-dollars account linked to each student’s ID card, and the student could then spend those funds at Chartwells food outlets on campus. Unlike students at UA, students at Auburn and UAB cannot apply for a refund of the unused dining dollars in their accounts at the end of the academic year, and the programs at Auburn and UAB have not been expanded to include any off-campus dining establishments.

On August 11, 2010, groups of students and former students at UA, UAB, and Auburn who had paid the mandatory dining fee at their respective universities filed three separate actions in the Jefferson Circuit Court. The students named as defendants in those actions the boards of trustees governing the universities and certain university administrators, as well as the food-service vendors (hereinafter referred to collectively as “the defendants”). The students specifically alleged that the universities’ exclusive contracts with their respective food-service vendors violated § 6-5-60, Ala.Code 1975, inasmuch as those contracts created “an unlawful trust, combine, or monopoly” and that those contracts were unconstitutional in that they violated the prohibition in Ala. Const.1901, Art. IV, § 93, against the State’s “be[ing] interested in any private or corporate enterprise.” The students suing UA and Auburn — but not the students suing UAB — also alleged that UA and Auburn had violated § 16-l-32(d), Ala.Code 1975, because the student ID cards at those universities were effectively acting as university-issued debit cards and the transaction fees associated with their use were accordingly prohibited by law from exceeding five percent, yet, when the commissions due under the food-services contracts were included, those fees were more than three times that statutory limit. Finally, the students also alleged that the universities and food-service vendors had unlawfully converted their funds and transformed them from lawful currency into dining dollars. The students sought class certification for their claims, a judgment declaring the universities’ contracts with the food-service vendors to be illegal, and both injunctive relief and money damages.

Along with the complaints, the students also served interrogatories, requests for production, and requests for admissions upon the defendants. The defendants thereafter moved to stay discovery and for an extension of time in which to file motions to dismiss, and, on September 24, 2010, the trial court granted those motions, ordering that all motions to dismiss be filed by October 1, 2010. On that date, the defendants filed motions to dismiss the complaints for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6), Ala. R. Civ. P., and, on December 29, 2010, after conducting a consolidated hearing, the trial court granted the defendants’ motions and dismissed all pending claims with prejudice. On February 9, 2011, the students filed these appeals.

II.

We explained the standard of review applicable to an appeal of a trial court’s judgment dismissing a case pursuant to Rule 12(b)(6) as follows in Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193, 1195 (Ala.2008):

“In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court ‘must accept the allegations of the complaint as true.’ Creola Land Dev., Inc. v. Bentbroolce Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted). ‘“The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief.” ’ Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way, ‘ “a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” ’ Id. (emphasis added).”

III.

The students argue that the trial court erred in dismissing: (1) their antitrust claims; (2) their § 93 unlawful-state-interest-in-a-private-enterprise constitutional claims; (3) their § 16 — 1—32(d) excessive-transaction-fee claims; and (4) their conversion claims. We will consider each group of claims in that order; however, inasmuch as the students have named certain public entities and officials — the boards of trustees and administrators of the universities — as defendants, we first must consider the applicability of Ala. Const.1901, Art. I, § 14, which provides generally that “the State of Alabama shall never be made a defendant in any court of law or equity.”

This Court has held that the immunity afforded the State by § 14 applies to instrumentalities of the State and State officers sued in their official capacities when such an action is effectively an action against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). We have specifically “extended the restriction on suits against the State found in § 14 ‘to the state’s institutions of higher learning’ and ha[ve] held those institutions absolutely immune from suit as agencies of the State.” Ex parte Troy Univ., 961 So.2d 105, 109 (Ala.2006) (quoting Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983)). This § 14 bar also prohibits “actions against officers, trustees, and employees of state universities in their official capacities.” Alabama Agrie. & Meek Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004). We have, however, stated that certain causes of action are not barred by § 14:

“ ‘ “There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, 280 Ala. [635] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).” ’
“Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting [Ex parte ] Carter, 395 So.2d [65,] 68 [ (Ala.1980) ]) (emphasis omitted). These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones ).”

Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 881, 840 (Ala.2008). As clarified in Harbert, these “exceptions,” including the exception for actions seeking a declaratory judgment under the Declaratory Judgments Act, apply only to actions against State officials, not actions against State agencies. Id. at 841. The defendant boards of trustees are corporate bodies governing the universities, and there is no exception to the immunity afforded the State by § 14 that would permit the trial court to entertain an action against them, regardless of whether monetary, injunc-tive, or declaratory relief is being sought. Accordingly, the boards of trustees are due to be dismissed as parties with regard to all the claims alleged by the students, and we need only consider those claims as they relate to the university administrators and the food-service vendors.

The students’ first claim is that the dining-dollars programs violate § 6-5-60, which states, in relevant part:

“(a) Any person, firm, or corporation injured or damaged by an unlawful trust, combine or monopoly, or its effect, direct or indirect, may, in each instance of such injury or damage, recover the sum of $500 and all actual damages from any person, firm, or corporation creating, operating, aiding, or abetting such trust, combine, or monopoly and may commence the action therefor against any one or more of the parties to the trust, combine, or monopoly, or their attorneys, officers, or agents, who aid or abet such trust, combine, or monopoly.”

The trial court granted the defendants’ motions to dismiss the students’ § 6-5-60 antitrust claims on the basis of the state-action-immunity doctrine, a tenet of antitrust law that holds states and their in-strumentalities immune from antitrust violations if their alleged anticompetitive behavior was in accordance with a clearly articulated and affirmatively expressed policy of the State. Mobile Cnty. Water, Sewer & Fire Prot. Auth., Inc. v. Mobile Area Water & Sewer Sys., Inc., 567 F.Supp.2d 1342, 1349 (S.D.Ala.2008). On appeal, the students argue (1) that the state-action-immunity doctrine is not applicable to their antitrust claims because those claims are made under state, not federal, law, and (2) that the application of the state-action-immunity doctrine is inappropriate in this case even if it does apply to state antitrust claims. For the reasons that follow, we reject both arguments.

It is well settled that “[t]he federal law relating to monopolization governs Alabama antitrust actions.” McCluney v. Zap Prof'l Photography, Inc., 663 So.2d 922, 926 (Ala.1995) (citing Ex parte Rice, 259 Ala. 570, 67 So.2d 825 (1953)). The state-action-immunity doctrine has been a part of that federal antitrust law since 1943 when it was first articulated by the Supreme Court of the United States in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The United States Supreme Court summarized Parker and the origin of the state-action-immunity doctrine as follows in Community Communications Co. v. City of Boulder, 455 U.S. 40, 48^49, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982):

“[Parker ] addressed the question whether the federal antitrust laws prohibited a State, in the exercise of its sovereign powers, from imposing certain anticompetitive restraints. These took the form of a ‘marketing program’ adopted by the State of California for the 1940 raisin crop; that program prevented appellee from freely marketing his crop in interstate commerce. Parker noted that California’s program ‘derived its authority ... from the legislative command of the state,’ id., at 350, and went on to hold that the program was therefore exempt, by virtue of the Sherman Act’s own limitations, from antitrust attack:
“ ‘We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.’ Id., at 350-351.”

Notwithstanding the fact that this Court has previously cited Parker and applied state-action-immunity principles to a state antitrust claim in Twine v. Liberty National Life Insurance Co., 294 Ala. 43, 47, 311 So.2d 299, 302 (1975), the students argue that the state-action-immunity doctrine should not apply to state antitrust claims because, they say, the doctrine was formulated to address federalism and state-sovereignty concerns, and there can be no such concerns when it is alleged that only state, as opposed to federal, antitrust laws have been violated. Applying the state-action-immunity doctrine in such cases, the students argue, would be illogical, effectively “giving a state agency ‘state immunity’ from limitations directed specifically to the state.” (Students’ brief in case no. 1100557, p. 38.)

However, this argument fails to recognize that the limitations implicit in § 6-5-60 are not directed specifically to the State; rather, they are directed to “any person, firm, or corporation creating, operating, aiding, or abetting such [a] trust, combine, or monopoly.” (Emphasis added.) Indeed, while federalism and state-sovereignty principles may have been the primary impetus behind the formulation of the state-action-immunity doctrine, they are not the only basis for the doctrine. It is also evident from Parker that the doctrine was derived from the plain language of the Sherman Act:

“The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state. The Act is applicable to ‘persons’ including corporations, § 7, 15 U.S.C.A., and it authorizes suits under it by persons and corporations. § 15. A state may maintain a suit for damages under it, State of Georgia v. Evans, 316 U.S. 159 [ (1942) ], but the United States may not, United States v. Cooper Corp., 312 U.S. 600 [ (1941) ]—conclusions derived not from the literal meaning of the words ‘person’ and ‘corporation’ but from the purpose, the subject matter, the context and the legislative history of the statute.
“There is no suggestion of a purpose to restrain state action in the Act’s legislative history. The sponsor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only ‘business combinations’. 21 Cong. Rec. 2562, 2457; see also at 2459, 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations, abundantly appears from its legislative history. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492, 493 and note 15 [ (1940) ]; United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271 [ (1898) ], affirmed 175 U.S. 211 [ (1899) ]; Standard Oil Co. v. United States, 221 U.S. 1, 54-58 [ (1911) ].”

317 U.S. at 351. Like the Sherman Act, there is nothing in the text of § 6-5-60 that would indicate that the Alabama Legislature intended to restrain state actors by way of § 6-5-60. Nor have the students identified anything in the relevant legislative history that would indicate as much. In fact, if anything, the language in § 6-5-60 allowing for recovery only from a “person, firm, or corporation” would seem to indicate the contrary.

The state-action-immunity doctrine also has a logical basis that is as relevant to state antitrust claims as it is to federal antitrust claims. The United States District Court for the Western District of Louisiana summarized the logical basis for granting states and their instrumentalities immunity from liability for violating state antitrust laws as follows in Airline Car Rental, Inc. v. Shreveport Airport Authority, 667 F.Supp. 303, 308 (W.D.La.1987):

“The principles of federalism and state sovereignty on which the Supreme Court relied in Parker [v. Broum, 317 U.S. 341 (1943),] have no bearing on the question whether state antitrust laws should apply to municipalities acting pursuant to a clearly expressed state policy permitting anticompetitive conduct; however, it would be illogical to hold that a state legislature which had clearly articulated such a policy nevertheless intended that a municipality acting pursuant to that policy should be subject to liability under state antitrust laws. For this reason, the court will dismiss both [the appellant’s] federal and state antitrust claims.”

For all these reasons, we now reaffirm Twine, which applied the state-action-immunity doctrine without clearly denominating it as such and explicitly hold that the state-action-immunity doctrine may be raised as a defense to claims that state antitrust laws have been violated. The university administrators are accordingly entitled to immunity with regard to the students’ § 6-5-60 antitrust claims. We further note that this is consistent with our long-standing caselaw applying federal antitrust principles to state-law antitrust claims. See Ex parte Rice, 259 Ala. 570, 575, 67 So.2d 825, 829 (1953) (noting that “[w]e do not seem to have in Alabama a statute which defines an unlawful monopoly” and accordingly holding that the federal statutes “prescribe the terms of unlawful monopolies and restraints of trade as they should also be administered in Alabama”), and Parker, 317 U.S. at 350-51 (“We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.” (emphasis added)). However, further inquiry is necessary to determine if the food-service vendors may also claim the protections of the state-action-immunity doctrine.

In California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) {“Midcal”), the Supreme Court of the United States unanimously held that a private party acting in conjunction with the state might be entitled to state-action-immunity protection if the private party is acting pursuant to a clearly articulated and affirmatively expressed state policy. In discussing whether the defendants acted pursuant to a clearly articulated and affirmatively expressed state policy, the trial court, in its orders dismissing the cases challenging the dining-dollars programs at UA and UAB, stated:

“Applying such law here, the court begins with the legal basis for [UA’s and UAB’s] operations. Section 264 of the Alabama constitution declares that the University of Alabama system ‘shall be under the management and control of a board of trustees.’ [Section 16-47-2, Ala.Code 1975,] provides that the board of trustees ‘shall have all the rights, powers and franchises necessary to or promotive of the end of its creation and shall be charged with all the corresponding duties, liabilities and responsibilities.’ Further, from [§ 16-47-34, Ala. Code 1975], comes the additional power ‘to organize the university by appointing a corps of instructors, who shall be styled the faculty of the university, and such other officers as the interest of the university may require; to remove such instructors or officers, and to fix their salaries or compensation, and increase or reduce the same at their discretion; to institute, regulate, alter or modify the government of the university, as it may deem advisable; to prescribe courses of instruction, rates of tuition and price of board and regulate the necessary expenses of students; and to confer such degrees as are usually conferred by similar institutions.’ (Emphasis added.)
“The board of trustees for the University of Alabama system has been given, both from the constitution and from the Alabama legislature, broad authority to operate and manage [its universities’] operations. It is foreseeable that, in the exercise of such authority, the board would contract food services to third-party entities possessing expertise in that area. That such is foreseeable is evidenced by [§ 41-16-27(g), Ala.Code 1975], which generally exempts from the mandatory bid process ‘contractual services and purchases of personal property regarding the athletic department, food services, and transit services negotiated on behalf of two-year and four-year colleges and universities.... ’
“The court agrees with the defendants that the prerequisite of a clearly articulated policy does not mean that the alleged anti-competitive agreement must be specifically blessed by the legislature for the state-action immunity to apply. The U.S. Supreme Court has before made clear that a clear articulation does not require the state to declare explicitly that it expects anticompetitive conduct to result from legislation; instead, a clear articulation merely requires that anticompetitive conduct is the foreseeable result of the legislation. See Town of Hallie [v. City of Eau Claire ], 471 U.S. [34,] 41-43, 105 S.Ct. [1713,] 1718 (1985); see also F.T.C. v. Hospital Board of Directors of Lee County, 38 F.3d 1184, 1189-91 (11th Cir.1994).
“It is certainly foreseeable that a university would require some form of a mandated meal plan for its students, and it is foreseeable that an exclusive management contract would govern the provision of meal service on campus. Given the broad authority of [the board of trustees for the University of Alabama system] to govern all aspects of campus life, including the terms, conditions and fees for board provided to students, the clear articulation requirement for state-action immunity is met.”

The students challenge the trial court’s conclusion that the requirement that there be a clear articulation of a state policy was met, arguing that it is too great a leap to conclude that it was foreseeable that the boards of trustees of the universities would enter into the exclusive contractual relationships with the food-service vendors merely because they were granted broad authority to operate and to manage the operations of the universities. We disagree. As detailed in trial court’s order, the legislature has granted to the boards of trustees broad authority to manage the operations of their universities, and that authority certainly encompasses the authority to enter into contracts. That the statutes do not explicitly state that the boards may enter into “exclusive” contracts is irrelevant — as one court has noted, “an exclusive contract is merely a subset of the power to contract.” Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.2011). Moreover, the legislature has also specifically empowered the boards of trustees governing UA, UAB, and Auburn to control the “expenses” and “fees” payable by students at those universities, §§ 16-47-34 and 16-48-4, Ala.Code 1975. Accordingly, we agree with the trial court’s determination that it is “foreseeable that a university would require some form of a mandated meal plan for its students, and it is foreseeable that an exclusive management contract would govern the provision of meal service on campus.” We also hold that all other elements of the dining-dollars programs implemented by the universities are equally foreseeable in light of the broad authority granted the boards of trustees in these areas.

The students also argue that it was inappropriate for the trial court to decide issues of foreseeability and immunity at this stage of the proceedings. Citing Thetford v. City of Clanton, 605 So.2d 835, 841 (Ala.1992) (“Foreseeability is an issue for the jury to resolve.”), and Doe v. McRae’s of Alabama, 703 So.2d 348, 350 (Ala.Civ.App.1996) (“Ordinarily, foreseeability is a question of fact for the jury.”), the students argue that foreseeability is an intrinsically factual issue that a jury, not a trial court considering a motion to dismiss, should resolve. The defendants, however, argue that other courts applying the state-action-immunity doctrine routinely resolve foreseeability concerns on motions to dismiss. See, e.g., Town of Hattie v. City of Eau Claire, 471 U.S. 34, 38, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Active Disposal, 635 F.3d at 889; Rectrix Aerodrome Ctrs. v. Barnstable Mun. Airport Comm’n, 610 F.3d 8, 16 (1st Cir.2010); and Pennsylvania v. Susquehanna Area Reg’l Awyort Auth, 423 F.Supp.2d 472, 484 (M.D.Pa.2006).

We agree with the defendants that the trial court properly decided this issue. Unlike both Thetford and McRae’s, where the issue was whether a business should be held liable for the allegedly foreseeable criminal acts of a third party, the issue here is whether the universities’ actions in implementing the dining-dollars programs were foreseeable based on the power vested in the boards of trustees by the Alabama constitution and Alabama statutes. By necessity, this inquiry focused on the review and interpretation of the relevant constitutional provisions and statutes, a task traditionally reserved for the court. Federal courts applying the state-action-immunity doctrine typically resolve these issues without resort to a jury, and we find no error in the trial court’s doing the same in this case.

The students also argue that the trial court erred by deciding the immunity issue at this time, quoting Patton v. Black, 646 So.2d 8, 10 (Ala.1994): “[I]t is a rare case involving the defense of immunity that would be properly disposed of by dismissal pursuant to Rule 12(b)(6)” (as quoted in the students’ brief in case no. 1100557, p. 49). However, this quotation omits the word “discretionary” from the language of the Patton Court’s actual opinion, which reads “[tjhus, it is the rare case involving the defense of discretionary immunity that would be properly disposed of by a dismissal pursuant to Rule 12(b)(6).” (Emphasis added.) The Court elsewhere in Patton discussed the difficulties associated with the application of the discretionary-immunity defense, stating that “[t]he distinction between discretionary functions and ministerial functions is often cloudy and difficult to discern.” 646 So.2d at 10. That difficulty eventually led this Court to restate the principle of discretionary immunity in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Discretionary immunity is not an issue in this case, and, because the defendants have properly raised and argued the state-action-immunity defense in their motions to dismiss, the trial court’s consideration of that defense was consistent with the judicial policy that immunity issues should be decided as early as possible once raised. See, e.g., Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (“One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”).

The students’ final argument with regard to whether the dining-dollars programs are the foreseeable result of a clearly articulated state policy is that they cannot be, if only because there is a more clearly articulated state policy that, they argue, forbids such programs. That policy, the students argue, is set forth in § 93 of the Alabama Constitution of 1901, which states in relevant part that “[t]he state shall not ... be interested in any private or corporate enterprise.” The students argue that the dining-dollars programs violate § 93 inasmuch as the contracts between the universities and the food-service vendors provide that the universities receive a percentage of each transaction in which dining dollars are used. Thus, the students argue, the universities are effectively business partners with the food-service vendors, in violation of the prohibition of such arrangements in § 93. See Knight v. West Alabama Envtl. Improvement Auth., 287 Ala. 15, 20, 246 So.2d 903, 906 (1971) (“The restraints of said Section 93 concerning being interested in any private or corporate enterprise have been construed to mean, with certain exceptions not here relevant, that the State may not engage, alone or in concert with others, in the business of any type generally characterized as private enterprise.”).

The trial court rejected this argument on the basis of caselaw clearly indicating that § 93 does not apply to public corporations. See, e.g., Thomas v. Alabama Mun. Elec. Auth., 432 So.2d 470, 481 (Ala.1983) (“A public corporation is a separate entity from the State and from any local political subdivision thereof. The prohibitions of Sections 93 and 94 are directed to the State and not to public corporations.”); and Knight, 287 Ala. at 19, 246 So.2d at 905 (“It is well established by the decisions of this Court that a public corporation is a separate entity from the State and from any local political subdivision thereof, including a city or county, and that the prohibitions of Section 93 are directed to the State and not to public corporations.”). The board of trustees governing UA and UAB was organized as a public corporation by § 16-47-1, Ala.Code 1975, and the board of trustees governing Auburn was similarly organized as a public corporation by § 16^18-1, Ala.Code 1975; thus, Thomas and Knight would seem applicable. However, the students argue that it is inconsistent to consider the boards of trustees as the State for immunity purposes and then in the same case declare that they are not the State for § 93 purposes; if the boards are the “State” for one purpose, the students argue, they must be the “State” for other purposes. However, while it may seem inconsistent, the trial court correctly decided these issues, because that is the result our caselaw dictates.

As referenced above, our caselaw is unanimous in its treatment of § 93 and public corporations— § 93 does not apply to them. See, e.g., Thomas and Knight, supra. The immunity that comes from § 14 and that is associated with being part of the State, however, does not automatically attach to all public corporations; some public corporations are entitled to it while others are not. In Armory Commission of Alabama v. Staudt, 388 So.2d 991, 993 (Ala.1980), we explained what more is required before a public corporation may claim that immunity, stating:

“Whether a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body. All factors in the relationship must be examined to determine whether the suit is against an arm of the state or merely against a franchisee licensed for some beneficial purpose.”

We have previously considered whether state universities, as public corporations, should be entitled to that state immunity and answered that inquiry in the affirmative. See, e.g., Rigby v. Auburn Univ., 448 So.2d 345, 347 (Ala.1984) (“[W]e conclude that because of the character of the power delegated to it by the state, its relation to the state as an institution of higher learning, and the nature of the function it performs as an institution of higher learning, Auburn University is an instrumentality of the state and therefore immune to suit by the terms of Section 14 of our state constitution.”). For those same reasons, we conclude that the boards of trustees may be considered the State for purposes of § 14 state immunity, while nevertheless maintaining a status distinct from the State for § 93 purposes because they are organized as public corporations. The trial court correctly held that the dining-dollars programs are the foreseeable result of a clearly articulated state policy.

However, although the clear-articulation-of-a-state-policy test has been met, the Midcal test applied by courts when determining whether to extend state-action immunity to nonstate parties also typically requires a showing that the alleged anti-competitive conduct is actively supervised by the state. 445 U.S. at 105. However, beginning with Town of Hallie, this requirement has been relaxed when the particular circumstances of the case make it unnecessary. 471 U.S. at 46-47 (holding that municipalities need not satisfy the second prong of the Midcal test). Relying on the rationale of Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495 (10th Cir.1997), the trial court found that these were such cases because the universities had the exclusive authority both to mandate the mandatory dining fees and to set the amount of those fees, and the food-service vendors merely acted to fulfill the terms of their contracts. See Zimomra, 111 F.3d at 1499-1500 (holding that active supervision by the state need not be shown in a case challenging the legality of mandatory fees attached to car rentals because the city and the county — not a private party— had the ultimate responsibility of setting those mandatory fees). The students argue that the rationale of Zimomra should not apply because the food-service vendors played an active part in the negotiations that led to the implementation of the mandatory dining fees and the dining-dollars programs, and because the food-service vendors exercise substantial autonomy in the manner in which they provide food services under the contracts. We ultimately decline to address this issue, however, because, by any standard, it is clear that the universities actively supervised the challenged dining-dollars programs on their respective campuses.

Each of the universities’ contracts with the respective food-service vendor contains detailed provisions setting forth guidelines governing nearly every facet of the food-service vendor’s on-campus operation, including menu selection and food preparation. The universities also retain ultimate authority over food prices and the operating hours of the on-campus dining outlets. The contracts are sufficiently comprehensive that there can be no question that the universities are actively involved in and supervising the food-service operations on their campuses. Moreover, lest there be any doubt that the contracts merely allow for the possibility of supervision as opposed to actual supervision, see FTC v. Ticor Title Ins. Co., 504 U.S. 621, 638, 112 S.Ct. 2169, 119 L.Ed.2d 410 (1992) (“The mere potential for state supervision is not an adequate substitute for a decision by the State.”), we also note that the contracts require the food-service vendors to file regular reports with the universities detailing their operations. For example, UA’s contract with Aramark requires Aramark to “[s]ubmit quarterly reports to the university addressing issues that affect the efficiency of the operations, security, services, food, sanitation, and any other relevant topics, and including back-up data and recommendations for improving the situation.” UA’s decision to raise the mandatory dining fee from its original $200 per semester to $300 per semester is further evidence that it is actively involved in and supervising its dining-dollars program, as opposed to merely deciding to implement such a program and then leaving the details of operation to Aramark.

The defendants have established that the food-service vendors were acting according to a clearly articulated state policy and that their actions were actively supervised by the universities; accordingly, they are protected by the state-action-immunity doctrine with regard to the students’ antitrust claims, and the trial court did not err by dismissing those claims. As explained supra, the students’ § 93 claims are also without merit because § 93 does not apply to public corporations like the boards of trustees; the trial court therefore correctly dismissed those claims as well. We thus turn to the UA and Auburn students’ argument that the trial court erred by dismissing their claims, alleging a violation of § 16 — 1—32(d).

Section 16-1-32 provides, in relevant part, as follows:

“(a) The board of trustees or any other governing body of a public institution of higher education as defined in Section 16-5-1 may establish a program which provides students enrolled at the institution with debit cards issued by the institution. This specific authority shall exist in addition to any pre-exist-ing authority to establish such a program conferred elsewhere by the Constitution of Alabama of 1901, or statute.
“(b) A student issued a debit card under the program may use the card to purchase merchandise or services available through the institution or at the institution through a person authorized to sell merchandise or services at the institution, or at any other location or through any other person as determined by the board of trustees or the governing body.
“(c) Without limiting the generality of the foregoing subsection, the debit card program shall at a minimum allow a person who operates an off-campus college bookstore which sells merchandise or services of the same kind as the merchandise or services that a student may purchase at a bookstore operated on the campus of the institution under subsection (b), to participate in the program under the same or equivalent terms applicable to a person authorized to sell merchandise or services under subsection (b), and to accept a debit card payment from a student to whom a debit card has been issued under the program for purchase of that merchandise or service.
“(d) A per transaction fee, not to exceed 3.25 percent of the total purchase price may be charged the off-campus bookstore by the institution administering the debit card program. Other merchants may participate in the program under the terms and conditions established by the institution. The transaction fee for all other merchants or vendors, irrespective of type of business, shall not exceed five percent of the total purchase price.”

In their complaints, the UA and Auburn students argue that UA and Auburn have been charging transaction fees in excess of the five-percent cap in subsection (d) because the commission charged on every dining-dollars transaction exceeds five percent even before other debit-card fees are considered. The defendants argue that there has been no violation of § 16-1-32 because the commission is not properly considered a “transaction fee” for purposes of the statute. The trial court ultimately declined to reach that issue, stating:

“Finally, while the plaintiffs attempt to assert a claim under [§ 16-1-32], there is no indication that the Alabama legislature intended to create a private cause of action for any violation of that statute. A private right of action cannot be presumed; rather, ‘[o]ne claiming a private right of action within a statutory scheme must show clear evidence of a legislative intent to impose civil liability for a violation of the statute.’ Blockbuster, Inc. v. White, 819 So.2d 43, 44 (Ala.2001); American Auto. Ins. Co. v. McDonald, 812 So.2d 309, 311 (Ala.2001). Accordingly, no claim can be based on [§ 16-1-32].”

Citing Corpus Juris Secundum, the students argue that the trial court erred because, they argue, the general rule is that when a statute imposes a duty for the benefit or protection of particular individuals or classes of individuals, a violation of that duty gives a right of action to any person for whose benefit or protection the statute was enacted. 1A C.J.S. Actions § 57. However, by its very terms, this rule would grant a right of action only to those individuals for whose benefit the statute was enacted. The plain language of § 16-1-32 indicates that it was enacted to open the market for university-issued debit cards to off-campus merchants and to prevent such merchants from being charged excessive transaction fees. Thus, § 16-1-32 was enacted for the benefit of merchants, not students. Although it is possible that excessive transaction fees, if allowed, would be passed on from merchants to students (and the public in general) in the form of higher across-the-board prices, there is no indication that the legislature intended to address that indirect possibility in § 16-1-32. Because § 16-1-32 was not enacted for the direct benefit of students, we will not read into it the creation of a cause of action available to the students at UA and Auburn. The trial court’s dismissal of the § 16-1-32 claims is accordingly affirmed.

The students’ final argument is that the trial court erred by dismissing their conversion claims. The trial court does not specifically discuss these claims in its orders; however, they were implicitly included in the final paragraph of the orders, which stated: “[h]aving considered the defendants’ contentions, and the plaintiffs’ responses thereto, the court concludes that the plaintiffs may not maintain any of the causes of action asserted in their complaint.” (Emphasis added.) The defendants argue that the reason the trial court did not address the students’ conversion claims is because, the defendants argue, the students are asserting them for the first time on appeal. Upon review, however, each of the complaints filed by the students at the different universities does contain a broad allegation of conversion. See, e.g., brief of the students in case no. 1100557 (“This scheme also constitutes a conversion of the plaintiffs’ funds by requiring the payment into the dining dollars account, then transforming lawful currency into ‘dining dollars’ over which [the food-service vendor] exercises exclusive dominion and control.”). Nevertheless, the trial court’s dismissal of the students’ conversions claims is due to be affirmed because, even when the allegations of the students’ complaints are viewed most strongly in their favor, it is apparent that they cannot prevail on these claims.

“To establish conversion, one must present proof of a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property.” Crown Life Ins. Co. v. Smith, 657 So.2d 821, 823 (Ala.1994). The complaints do not support a finding that any party took or otherwise illegally assumed ownership of the students’ funds. There is no allegation that any party wrongfully accessed deposit accounts belonging to the students and withdrew the money or that any party otherwise took the funds from the students without the students’ consent. Nor is there an allegation that the funds were obtained through fraud, artifice, stealth, or trickery. See Brown v. Campbell, 536 So.2d 920, 921 (Ala.1988) (holding that possession obtained through fraud, artifice, stealth, or trickery without the consent of the owner is wrongful and will support an action for conversion). Rather, the only conclusion that can be gleaned from the complaints is that the students were presented with a lawful mandatory charge associated with attendance at their chosen university and that they subsequently consented to pay that charge as a condition of attendance. Undoubtedly, some of the students did not like paying the mandatory dining fee and would have preferred to attend their respective university without paying it; however, the same is no doubt as true of any tuition payments. Such dissatisfaction, however, is not tantamount to a lack of consent. Because the students clearly consented to pay the mandatory dining fee, their conversion claims fail. See also Jones v. DCH Health Care Auth., 621 So.2d 1322, 1324 (Ala.1993) (“ ‘In order to constitute conversion, nonconsent to the possession and the disposition of the property by defendant is indispensable.’ ” (quoting 89 C.J.S. Trover & Conversion § 5, p. 535 (1955))).

IV.

The students sued the boards of trustees governing the universities, the administrators of the universities, and the food-service vendors, alleging that the dining-dollars programs operated by the universities violated: (1) state antitrust laws; (2) § 93 of the Alabama Constitution inasmuch as it forbids the State from having an interest in a private enterprise; (3) the rule in § 16 — 1—32(d) barring universities from charging excessive transaction fees to merchants that accept university-issued debit cards; and (4) the common-law prohibition on conversion. However, because the boards of trustees are entitled to state immunity pursuant to § 14 of the Alabama Constitution, all claims against them were properly dismissed. The university administrators and food-service vendors are entitled to immunity on the asserted antitrust claims as well, albeit state-action immunity as opposed to state immunity; thus, the trial court’s dismissal of the antitrust claims was also proper. Moreover, because the universities are public corporations not subject to § 93, because the students lack standing to pursue a cause of action for a violation of § 16 — 1—32(d), and because the students have not and cannot allege the necessary elements of a conversion claim, the trial court also properly dismissed the students’ other claims. Accordingly, the judgments of the trial court are hereby affirmed.

1100557 — AFFIRMED.

1100560 — AFFIRMED.

1100561 — AFFIRMED.

WOODALL, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

SHAW, J., concurs in the result.

MALONE, C.J., recuses himself.

      . The fee was later raised to $300 per semester.

      . The dining-dollars program at UA was eventually modified to allow students to spend their dining dollars at approximately four off-campus dining establishments.

      . It appears that Auburn, unlike UA and UAB, may not officially use the term "dining dollars” in association with its mandatory dining fee; however, for convenience, and because of the similarities between the dining programs administered by the universities, that term is used in this opinion to refer to Auburn’s dining program as well.

      . Students enrolled in classes prior to the fall 2008 semester are exempt from paying the mandatory dining fee.

      .The universities are controlled by two boards of trustees. The board of trustees for the University of Alabama system controls both UA and UAB; Auburn has a separate board of trustees. The university administrators named as defendants by the students, all sued solely in their official capacities, were: (1) C. Ray Hayes, vice chancellor for financial affairs for the University of Alabama system; (2) Sarah B. Newton, then president pro tem-pore of the Auburn board of trustees; and (3) Dr. Donald L. Large, executive vice president and chief financial officer at Auburn.

      . The students sought money damages only from the food-services vendors, presumably because this Court has held that "to the extent that [an] action seeks money damages from the State, it is barred by the doctrine of sovereign immunity.” Ex parte Murphy, 72 So.3d 1202, 1208 (Ala.2011).

      . However, although the students may seek injunctive and declaratory relief against the university administrators, § 14 still immunizes those State officials from any claim for money damages. Harbert, 990 So.2d at 839-41.

      . The order entered in the case dismissing the complaint challenging Auburn’s dining-dollars program was virtually identical; however, the paragraph describing the legal basis for Auburn’s operations read as follows:
      "Applying such law here, the court begins with the legal basis for Auburn's operations. Section 266 of the Alabama constitution declares that ‘Auburn University shall be under the management and control of a board of trustees.' [Section 16-48-2, Ala. Code 1975,] provides that the Auburn board of trustees 'shall have all the rights, privileges and franchises necessary to a promotion of the end of its creation and shall be charged with all corresponding duties, liabilities and responsibilities.’ Further, from [§ 16-48-4, Ala.Code 1975,] comes the additional power ‘to organize the institute by appointing a corps of instructors, who shall be styled the faculty of the university and such other instructors and officers as the interest of the university may require; and to remove any such instructors or other officers, and to fix their salaries or compensation, and increase or reduce the same at its discretion, to regulate, alter, or modify the government of the university, as it may deem advisable; to prescribe courses of instruction, rates of tuition and fees; to confer such academic and honorary degrees as are usually conferred by institutions of similar character; and to do whatever else it may deem best for promoting the interest of the university.' (Emphasis added.)”

      . We also note that the CFG report submitted to UA in 1995 indicates that "mandatory board plans” were required at earlier periods in UA’s history and that on-campus dining services had been contractor-operated since 1965.

      . The students object to the trial court’s use of § 41 — 16—27(g), Ala.Code 1975 — which exempts certain contracts, including those for food services, negotiated on behalf of universities from the State’s mandatory-bid requirements — to bolster its finding of foreseeability because that statute was not enacted until 2000, 6 years after the implementation of the first dining-dollars program at UA and around 100 years after the enactment of the first incarnation of § 6-5-60. However, § 41-16-27(g) does not grant universities the authority to execute contracts for food services; rather, by exempting those specific contracts from the mandatory-bid process, it implicitly recognizes that that authority exists.

      . We also note that this Court overruled McRae’s in Ex parte McRae’s of Alabama, Inc., 703 So.2d 351, 352 (Ala.1997), effectively agreeing with the trial court's determination that the criminal acts of the third party were not foreseeable as a matter of law, stating: "[sjuffice it to say that there had never been a similar assault on the defendant’s store premises, or any violent crimes of any nature on those premises.”

      . "Since Cranman, we analyze immunity issues in terms of 'State-agent' immunity, rather than ‘under the dichotomy of ministerial versus discretionary functions.’ Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003).” Howard v. City of Atmore, 887 So.2d 201, 203 (Ala.2003). The analysis in Cranman, a plurality opinion, was adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).


author: THOMPSON, Presiding Judge.

text:
    Linda Lee COCHRAN v. Joseph P. CHAPMAN.
    2100550.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.
    W. Gregory Hughes, Mobile, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Linda Lee Cochran appeals from a judgment of the Mobile Circuit Court divorcing her from Joseph P. Chapman. For the reasons set forth herein, we reverse the trial court’s judgment.

This is the second time this action has been before this court. See Cochran v. Chapman, 21 So.3d 1244 (Ala.Civ.App.2008). We set forth some of the procedural history relevant to the present appeal in Cochran:

“On June 8, 2007, Chapman filed a complaint for a divorce against Cochran. Among other things, he alleged in his complaint that he and Cochran had married on December 31, 1989, and had lived together until their separation on June 1, 2007. In her answer to the complaint, Cochran denied that she and Chapman were married.
“The trial of the matter on November 14, 2007, focused on whether the parties had entered into a common-law marriage; it was apparently conceded that if they were married, it was solely by virtue of the common law. On November 20, 2007, the trial court issued a judgment determining that the parties had not entered into a common-law marriage.
“On December 5, 2007, Chapman filed a motion to alter, amend, or vacate the trial court’s judgment. He argued that sufficient evidence was offered at the trial to indicate that the parties were married by virtue of the common law and that the trial court’s judgment was contrary to pleadings that Cochran had filed in a previous divorce action between the parties that had been dismissed. On February 11, 2008, the trial court granted Chapman’s motion and vacated its November 20, 2007, judgment. In its order, the trial court found that the parties had, in fact, entered into a common-law marriage. The trial court set the case for a trial on July 23, 2008.
“On February 28, 2008, Cochran filed a motion asking the trial court to certify the February 11, 2008, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted Cochran’s motion. Thereafter, Cochran appealed the trial court’s February 11, 2008, order.”

21 So.3d at 1245.

On appeal, this court found that “the trial court’s order setting aside its final judgment and determining that the parties had entered into a common-law marriage [did] not ‘fully adjudicate a whole claim,’ as was necessary to make the order subject to a certification of finality under Rule 54(b).” Id. at 1246. Thus, we concluded that the order from which the appeal was taken was not a final judgment capable of supporting the appeal, and we dismissed the appeal. Id. at 1246-47.

On January 81, 2011, the trial court held a second ore tenus proceeding, after which, on February 3, 2011, it entered a judgment divorcing the parties and dividing their property. Cochran appeals. She contends that the trial court erred in finding that Chapman and she had entered into a common-law marriage and, as a result, that its judgment divorcing them and dividing their property is due to be vacated.

In Lofton v. Estate of Weaver, 611 So.2d 335 (Ala.1992), our supreme court set forth the standard of review appropriate to this case:

“ ‘Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.’ Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986), citing Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982). A trial judge’s findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala.1989). The trial court’s judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it “will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Adams v. Boan, 559 So.2d 1084, 1086 (Ala.1990) (citation omitted).”

611 So.2d at 336. “Clear and convincing evidence” is defined as

“[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

§ 6 — 11—20(b)(4), Ala.Code 1975. Discussing the elements of a common-law marriage, this court has written:

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001).

The November 14, 2007, hearing focused on whether the parties had entered into a common-law marriage. Testimony at that hearing indicated that the parties had begun living together in 1989. At the outset of their relationship, the parties lived in a mobile home that Chapman owned. Subsequently, they moved that mobile home onto a parcel of land that, according to Chapman, the parties had purchased together; however, according to Cochran, she had purchased the property. It is undisputed that Cochran held the title to the property.

Chapman testified that the parties purchased a double-wide mobile home in 1997 or 1998 and that he spent two years remodeling it before they moved into it. He stated that the double-wide mobile home had been purchased using a $10,000 cash advance on one of Cochran’s credit cards and that it was titled in Cochran’s name. Testimony indicated that the parties shared the expenses involved in improving the mobile home, and Chapman testified that he made payments on Cochran’s credit cards.

Chapman testified that Cochran and he had opened a bank account together, and a bank statement for that account that listed both of their names was entered into evidence. Cochran testified that she had owned that account and that she had made Chapman an authorized user of the account because he did not have his own bank account and had been having difficulty cashing checks that he received from his customers. Cochran stated that the account was not open for long and that she had closed it.

Testimony indicated that, at some point, Chapman had a credit card related to a credit-card account that was in Cochran’s name. Cochran testified that she had owned that credit-card account and that Chapman was just an authorized user of the account. Testimony at the hearing indicated that, at some point, the parties had jointly owned an automobile-insurance policy. At the time of the 2007 hearing, they had separate automobile-insurance policies.

It is undisputed that the parties did not file joint tax returns but, instead, that they each listed their status as “single” on their respective tax returns. It is likewise undisputed that when Chapman applied to a bank for a loan in 2006, he indicated in the loan application that he was single.

Cochran testified that when she started working for a new employer in 2004, she listed herself as “single” on her application for health insurance. She stated that, on her enrollment form for her new employer’s retirement plan, she listed her mother as her primary beneficiary and Chapman as her contingent beneficiary, indicating on the form that her relationship to Chapman was “friend.”

Although Chapman testified that he considered himself to be married to Cochran, Cochran testified that she had never held herself out as being married to Chapman and that she had never introduced Chapman to anyone as her husband. She stated that she had not used the title “Mrs.” in conjunction with her name or taken Chapman’s surname.

At the November 14, 2007, hearing, the parties called several of their friends and a family member as witnesses. One friend of Chapman’s, who had known the parties for many years, testified that he knew that the parties had lived together and had acquired property together. He stated that he “felt like” the parties were married, but he admitted that whether the parties were married had never been a subject of conversation between the parties and him. He also admitted that there were many years when he did not have contact with the parties. Another friend of Chapman’s, who had also known the parties for many years, responded negatively when asked by the trial judge whether he had ever seen or heard the parties indicate that they were married.

Cochran’s mother testified that the parties had never been married and that, in their conversations with her, they had indicated that they were each single. She also stated that the parties had never, in her presence, introduced one another as husband and wife to others. A friend of Cochran’s testified that her husband and she had spent time with the parties socially and that she had never heard the parties introduce each other as husband and wife.

As previously noted, the trial court initially determined, following the November 14, 2007, hearing, that the parties had not entered into a common-law marriage. In its order setting aside that judgment and determining that the parties had entered into a common-law marriage, the trial court indicated that it was taking judicial notice of an action for divorce that Chapman had filed against Cochran in 2005, which subsequently had been dismissed (“the 2005 divorce action”). In that case, Cochran had maintained the position, in moving to dismiss Chapman’s action, that the parties were not married. After the trial court dismissed the 2005 divorce action on the basis that the parties had reconciled, Cochran filed a motion to reinstate the case in which she asserted:

“That since the time of Order of Dismissal dated March 22, 2006, [Chapman] has destroyed [Cochran’s] real and personal property and caused significant damage to the rental property on [Cochran’s] land by removing appliances and disconnecting utility lines. That [Cochran has been] told by the authorities that [the parties] are common law married and [that Chapman] cannot be removed. That this Honorable Court needs to rule as to the division of property and bills from this common law marriage.”

Chapman, in moving to set aside the November 20, 2007, judgment in the present case finding that the parties were not married by virtue of the common law, argued that the above statement in Cochran’s motion from the 2005 divorce action was an admission by Cochran of the existence of a common-law marriage between the parties.

As previously stated, the trial court held a hearing after this court dismissed the appeal from the February 11, 2008, order finding that the parties had entered into a common-law marriage. That hearing was focused on the division of the parties’ assets because the trial court had already resolved the issue whether the parties were married. However, some of the evidence presented at that hearing bears on the issue of whether the parties were, in fact, married. Particularly, Chapman submitted into evidence a receipt, dated March 17, 2006, for his purchase of a diamond ring and a wedding band that he said were in Cochran’s possession. Cochran acknowledged that she had received a diamond ring from Chapman as a gift, but she stated that he had not given her a wedding ring. Also submitted as evidence at the hearing was Chapman’s application for water service in which he had listed Cochran as his spouse. We note, however, that that application is dated November 19, 2007, which was well after the present action had been filed and five days after the first ore tenus proceeding. There was some evidence presented indicating that the parties had a second credit-card account together, although Cochran testified that that account belonged to her and that Chapman was merely an authorized user of the account.

To demonstrate that the parties had entered into a common-law marriage, Chapman was required to present clear and convincing evidence of “(1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.” Gray, 835 So.2d at 194. Among other things, Cochran argues that Chapman failed to prove public recognition of the parties’ relationship as a marriage. We agree.

In Bishop v. Bishop, 57 Ala.App. 619, 622, 330 So.2d 443, 445 (Civ.1976), this court wrote:

“We cannot dispute that public knowledge of the common-law marriage is the most effective means of insuring that the more casual relations between men and women are not elevated to the status of marriage. The marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in ‘... all of the numerous aspects of day-today mutual existence of married persons.’ Beck v. Beck, 286 Ala. 692, 246 So.2d 420 [ (1971) ]; Vinson v. Vinson, [260 Ala. 254, 69 So.2d 431 (1953)].”

The record in this case does not support a finding, by clear and convincing evidence, that the parties’ relationship was publicly recognized as a marriage. There is no evidence indicating that the parties held themselves out generally to the public as married, there is no evidence indicating that they introduced themselves to anyone as being married, and there is no evidence indicating that they referred to themselves as being married in the presence of others. To the contrary, the evidence indicates that both parties regularly referred to themselves as being single in the many documents they prepared, including in Chapman’s application for a loan, in Cochran’s employment documents, and in the parties’ tax returns. The only document submitted into evidence in which Chapman referred to Cochran as his spouse was prepared after the parties already had begun litigating the question whether they were married.

Although it is true that the parties lived together for many years, this court has stated that “[t]he fact that the parties may have lived together or cohabited, standing alone, is insufficient to show that the parties had entered into a common-law marriage.” Reese v. Holston, 67 So.3d 109, 113 (Ala.Civ.App.2011). Although there was some evidence, which was controverted in part, indicating that the parties had a joint checking account for a short time, a joint credit-card account, and a joint automobile-insurance policy, there is no indication that they intended, in holding those accounts and that policy jointly, to hold themselves out to the public as husband and wife. Nor is there any indication that, by holding those accounts and that policy jointly, their relationship had gained public acknowledgment as a marriage. As noted, Cochran never assumed Chapman’s surname, and the bulk of the evidence presented plainly contradicts any view that the parties had held themselves out to the public as being married. See Reese, 67 So.3d at 113 (reversing the trial court’s judgment finding that a common-law marriage existed and holding that the parties’ relationship had not achieved public recognition as a marriage despite evidence indicating that the purported wife had told members of her church that the parties were married, that the purported wife’s family had believed that the parties were married, and that two funeral programs had indicated that the parties were married); Bishop, 57 Ala.App. at 622, 330 So.2d at 445-46 (reversing the trial court’s judgment finding that a common-law marriage existed and holding that the facts showing public recognition of marriage were too meager to show that the parties considered themselves married, despite evidence indicating that the purported husband signed a medical-consent form as the purported wife’s spouse, that he twice introduced the purported wife as his wife, and that he allowed the purported wife and her two children to use his surname).

It appears that the trial court, in reversing its prior decision and determining that the parties had entered into a common-law marriage, may have relied on the previously quoted statements contained in Cochran’s motion to reinstate the 2005 divorce action to the effect that she was seeking to have the parties’ property divided because she had been told by authorities that Chapman and she were married by virtue of the common law and, as a result, that she could not have Chapman removed from her property. Those statements contained in Cochran’s motion do not persuade us that the evidence supports the trial court’s finding of a common-law marriage. It appears that Cochran took the position in the 2005 divorce action that the parties had not entered into a common-law marriage, and she altered that position only because, she alleged, she had been told that she could not have Chapman removed from her property. When read in context, we simply do not view the allegations in Cochran’s motion to reinstate the 2005 divorce action as rising to the level of an admission that the parties were married by virtue of the common law.

Considering the totality of the evidence, we cannot conclude that the trial court had before it clear and convincing evidence that the parties’ relationship had gained public recognition as a marriage. Thus, the trial court erred to reversal in finding that the parties had entered into a common-law marriage. Because clear and convincing evidence does not support the trial court’s finding that the parties were married, the judgment is reversed and the cause is remanded to the trial court for the entry of a judgment dismissing the action.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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