author: STUART, Justice.

text:
    M & F BANK v. FIRST AMERICAN TITLE INSURANCE COMPANY. First American Title Insurance Company v. M & F Bank.
    1111525 and 1111568.
    Supreme Court of Alabama.
    Aug. 16, 2013.
    Rehearing Denied in case no. 1111525 Nov. 15, 2013.

      Burt W. Newsome of Newsome Law, LLC, Birmingham, for appellani/cross-ap-pellee M & F Bank.
    Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Re-diker, LLC, Birmingham, for appel-lee/cross-appellant First American Title Insurance Company.
    David C. Skinner, Birmingham, for ami-cus curiae Alabama Consumer Finance Association, in support of the appellant M & F Bank.
   STUART, Justice.

In case no. 1111525, M & F Bank (“M & F”) appeals the summary judgment entered by the Jefferson Circuit Court in favor of First American Title Insurance Company (“FATIC”) on negligence, breach-of-contract, and bad-faith-failure-to-pay claims M & F asserted against FATIC related to a title-insurance policy (“the title policy”) FATIC issued M & F in connection with a mortgage loan made by M & F to a developer of property in Auburn. In case no. 1111568, FATIC appeals the summary judgment entered in favor of M & F on FATIC’s counterclaims asserting abuse of process, conspiracy, breach of contract, and negligence. We affirm both judgments.

I.

This action was initiated in the Jefferson Circuit Court on October 29, 2008; however, related proceedings were subsequently conducted in the Lee Circuit Court and the United States Bankruptcy Court for the Northern District of Alabama. The parties have previously sought relief in this Court on multiple occasions as well. In Ex parte M & F Bank, 58 So.3d 111 (Ala. 2010), we denied a petition for the writ of mandamus filed by M & F seeking the reversal of a discovery order and summarized the genesis of the dispute and the procedural history up to that time:

“On December 19, 2006, a plat for a subdivision referred to as Old Towne Station was recorded in the office of the Judge of Probate of Lee County. The plat showed lots numbered 1 through 94; it did not show a lot 95. On December 28, 2006, The Shoppes • at Old Towne Station, LLC (‘the debtor’), executed a note in favor of M & F evidencing an indebtedness of $2,855,000; the note purportedly was secured by a mortgage on ‘lot 95’ of Old Towne Station. On January 24, 2007, First American, through its agent, Blue Title, LLC, issued a title-insurance policy (‘the policy’) to M & F insuring M & F’s purported interest as mortgagee in lot 95.
“The debtor subsequently defaulted on the loan. As a result of the ‘title work’ performed in preparation for a foreclosure on the mortgage, M & F discovered that lot 95 was not included on the recorded plat. On October 29, 2008, M & F notified First American that it was making a claim under its title-insurance policy. On November 19, 2008, M & F — represented by attorney Burt Newsome — filed an action against Blue Title and First American in the Jefferson Circuit Court, alleging breach of contract. On April 27, 2009, M & F amended its complaint to include claims of negligence and bad faith against First American.
“After being served with process in the action filed by M & F, First American hired attorney Mark Davis to file an action in the name of M & F seeking a reformation of the mortgage held by M & F and insured by First American; Davis filed the action in the Lee Circuit Court on March 20, 2009, naming as defendants the debtor and certain purported lienholders. First American purported to take this action in accordance with what it contends were stipulations in the policy it had issued to M & F.
“On March 13, 2009, the debtor filed a petition in the United States Bankruptcy Court for the Northern District of Alabama (‘the bankruptcy court’) declaring bankruptcy under Chapter 7 of the United States Bankruptcy Code. The debtor hired attorney Steven Altman to represent it in the bankruptcy proceedings. The bankruptcy court appointed André Toffel, an attorney, as bankruptcy trustee. In turn, Toffel hired attorney Stephen Porterfield to represent the trustee’s interests in the bankruptcy proceedings. First American subsequently hired attorney Rick Johanson to initiate an adversary proceeding in the bankruptcy court in the name of M & F against the debtor, the trustee, and other parties seeking reformation of the mortgage deed; Johanson filed a complaint in the bankruptcy court for this purpose on July 8, 2009. On July 27, 2009, Porterfield filed on behalf of Tof-fel, as trustee, an application with the bankruptcy court to sell the property that is the subject of the M & F mortgage free and clear of all liens. In effect, Toffel sought to render the mortgage to M & F of no effect.
“Toffel subsequently filed an answer in the adversary proceeding initiated by Johanson on behalf of M & F; Toffel asserted affirmative defenses, including that he was what is known as an ‘ideal bona fide purchaser’ under 11 U.S.C. § 544(a) and in that capacity would be able to take the property at issue free of any mortgage interest held by M & F.
“In addition, Toffel and Johanson filed competing motions for a summary judgment in the adversary proceeding in which they debated whether Toffel was an ‘ideal bona fide purchaser’ under 11 U.S.C. § 544(a) and as such would be able to take the property free of M & F’s mortgage.
“First American asserts in its answer to this Court:
“ ‘In an extraordinary twist of events, M & F’s counsel, Mr. Newsome, actually had communications with Toffel and Porterfield regarding research he had done for them and critiquing the brief Porterfield was preparing in support of their motion for summary judgment against [M & F,] Mr. New-some’s client.... Mr. Newsome was actually doing research and assisting his client’s adversary who was attempting to have [M & F] determined to be an unsecured creditor.’
“First American also asserts that, in the course of preparing submissions for the bankruptcy court on behalf of M & F, Newsome had conversations with the debtor’s attorney, Altman, concerning Toffel’s filings with the bankruptcy court.
“M & F contends that Newsome engaged in the aforesaid communications because a resolution of M & F’s action against First American ‘would have to involve both the debtor’s attorney and the Chapter 7 Trustee.’ M & F claims that Newsome ‘had negotiations looking to compromise the outstanding controversies with the debtor’s attorney [Altman], the Chapter 7 Trustee [Toffel,] and the attorney for the Chapter 7 Trustee [Porterfield].’ M & F also insists that it ‘shares common interests’ with Altman, Toffel, and Porterfield because it asserts in the Jefferson Circuit Court action that the M & F mortgage on the property is void, and the debtor and Toffel contended in the bankruptcy court that the mortgage is void.
“On December 10, 2009, the bankruptcy court entered a summary judgment in favor of M & F and against Toffel with respect to the affirmative defenses asserted by Toffel in the adversary proceeding, including the defense that Tof-fel was an ‘ideal bona fide purchaser’ under 11 U.S.C. § 544(a). In so doing, the bankruptcy court declined to conclude that the M & F mortgage was invalid.

58 So.3d at 113-15 (footnotes 3 and 4 omitted). Following our decision in Ex parte M & F, the trial court continued to preside over repeated discovery disputes and a continually increasing level of rancor between the attorneys. Twice more, we denied petitions for the writ of mandamus filed by M & F, as well as a petition for permission to file an interlocutory appeal pursuant to Rule 5, Ala. R.App. P.

On February 28, 2011, the trial court granted FATIC’s motion to file newly acquired counterclaims pursuant to Rule 13(e), Ala. R. Civ. P. Those counterclaims included separate claims of abuse of process in both the instant action and the bankruptcy proceedings, claims alleging conspiracy, breach of contract, and negligence, and a request for attorney fees and expenses under the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala.Code 1975. These claims are largely based on FATIC’s argument that M & F improperly acted in concert with the debtor in an attempt to have the mortgage secured by lot 95 declared void so that FATIC would be required to pay out money damages under the title-insurance policy instead of merely curing the defect that existed in the mortgage. M & F thereafter filed an answer and moved to dismiss some of FATIC’s counterclaims. On May 18, 2011, the trial court granted that motion with respect to FATIC’s claim alleging abuse of process in the bankruptcy proceedings and also stated that it would consider the ALAA claim as a request for attorney fees and expenses to be heard at the conclusion of the case.

On June 30, 2011, the trial court held a hearing on motions filed by both M & F and FATIC seeking a summary judgment on the claims asserted by M & F. On August 25, 2011, the trial court denied M & F’s summary-judgment motion and granted FATIC’s summary-judgment motion, holding that the terms of the title-insurance policy issued to M & F by FAT-IC (1) limited M & F’s recovery to only breach of contract and excluded negligence claims and (2) authorized FATIC to cure any defects in the mortgage before paying damages under the policy. The trial court further held that FATIC had in fact cured any defects by recording additional documents with the Lee County Probate Office. Accordingly, the trial court entered a summary judgment in favor of FATIC on M & F’s negligence, breach-of-contract, and bad-faith claims. The trial court also denied M & F’s ensuing motions to reconsider and to certify the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

On July 5, 2012, M & F moved the trial court to enter a summary judgment in its favor on the remaining counterclaims that had been asserted by FATIC. On July 27, 2012, the trial court granted M & F’s motion and dismissed FATIC’s counterclaims, thus disposing of all outstanding claims in the action. In its order entering a judgment in favor of M & F, the trial court also set forth the schedule for the parties to submit evidence and arguments regarding FATIC’s request for attorney fees and expenses pursuant to the ALAA. M & F subsequently moved the trial court for its own award of attorney fees and expenses pursuant to the ALAA as well.

On August 14, 2012, M & F filed its notice of appeal, challenging the trial court’s August 25, 2011, order entering a summary judgment in favor of FATIC on M & F’s negligence, breach-of-contract, and bad-faith claims (appeal docketed as case no. 1111525). See Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala. 2002) (holding that a summary judgment was final and appealable even though a request for attorney fees and expenses pursuant to the ALAA remained pending because any award of attorney fees is collateral to the judgment). On September 7, 2012, FATIC filed its cross-appeal, challenging the trial court’s dismissal of its abuse-of-process, conspiracy, breach-of-contract, and negligence claims (appeal docketed as case no. 1111568). These appeals have been consolidated for the purpose of writing one opinion.

II.

M & F and FATIC both argue that the trial court erred in entering a summary judgment adverse to them on the claims they had asserted against the other. We review this argument pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2008). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Ho-durski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

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

III.

In its order entering a summary judgment in favor of FATIC on M & F’s claims, the trial court recognized that defining the terms of the contract between the parties was a “threshold issue.” Specifically, although the parties agreed that FATIC had issued a title-insurance policy to M & F insuring M & F’s interest as mortgagee in lot 95, they disagreed as to what documents made up the entirety of that policy. M & F argues that the policy consists only of documents marked schedules A & B, plus an additional set of 11 endorsements. M & F claims that these are the only documents it ever received from FATIC and argues that these are also the documents produced by FATIC’s issuing agent, Blue Title, in response to a discovery request for the policy that had been sent to M & F following its completion.

FATIC, however, argues that the complete policy consists not only of the documents cited by M & F, but also a jacket that contains additional exclusions from coverage, conditions, and stipulations. In support of this argument, FATIC submitted to the trial court, pursuant to Rule 1004(3), Ala. R. Evid., a copy of what it alleged was the complete policy. As further evidence that the complete policy includes the jacket, FATIC argues (1) that a copy of what it asserts was the complete policy was found in the files of the attorneys who represented M & F in its transaction with The Shoppes at Old Towne Station and (2) that an M & F officer previously submitted a copy of the front of the jacket as an exhibit to an affidavit he filed in which he claimed that that front of the jacket was part of the policy, thus indicating, FATIC argues, that the entire jacket and policy was in M & F’s possession. M & F counters by arguing that these were merely mid-negotiation documents exchanged between the parties, that the jacket was not attached to the final policy sent to M & F, and that any assertions M & F had made to the contrary were mistakes.

The trial court resolved this issue as follows:

“While there is a dispute between the parties on this point, the court finds that it is not a dispute of fact that may preclude consideration of the pending motions. First, it is undisputed that M & F’s counsel, in connection with the financing of the Old Towne Station purchase, received and had possession of the policy in its entirety. The court finds that because its counsel knew of the policy in its entirety, such knowledge must legally be imputed to M & F.
“M & F cannot be heard to argue that this would be an unjust result, moreover, given that it was on notice of the policy in its entirety. Attached to the affidavit of [M & F officer] Craig Nelson, filed on March 8, 2010, is what M & F claimed at that time to be the policy. That attachment contained the frontispiece of the jacket, which generally declares the terms of insurance coverage ‘subject to the exclusions from coverage, the exceptions from coverage contained in schedule B and the conditions and stipulations.... ’ Being on notice, M & F had the legal obligation to inquire into the nature of such additional provisions.”

We agree with this conclusion and further note that it is the front of the jacket, which M & F undisputedly received at some point, that contains the actual insuring provision that is alleged to have been breached. Thus, by asserting breach of contract, M & F is implicitly conceding that this insuring provision is part of the contract. Moreover, one of the endorsements M & F concedes is part of the policy provides that “[t]he policy is hereby amended by deleting paragraph no. 7 from the exclusions from coverage.” Paragraph no. 7, and all the other exclusions from coverage, as well as additional conditions and stipulations, are physically a part of the jacket, and this endorsement is accordingly further evidence that M & F understood those terms, with the stated exception of paragraph no. 7, to be a part of the policy. Finally, we note that all parties and attorneys involved in this dispute are sophisticated and experienced in these types of transactions and are surely familiar with the standard government-approved title-insurance policy forms. We accordingly agree with the trial court that there is no factual dispute but that the exclusions from coverage and conditions and stipulations found on the jacket are part of the policy.

That being established, § 14(b) of the conditions and stipulations provides that “[a]ny claim of loss or damage, whether or not based on negligence, and which arises out of the status of the lien of the insured mortgage or of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy.” FATIC argues that this provision limits M & F to a breach-of-contract claim and precludes it from pursuing a negligence claim. M & F, however, cites Soutullo v. Commonwealth Land Title Insurance Co., 646 So.2d 1352, 1355 (Ala.1994), in support of its argument that a negligence claim is viable. (“[The defendant title company] had a corresponding legal duty, upon which a negligence or wantonness action may be based, to exercise due care in performing its contractual obligations to examine the probate records....”) The trial court agreed with FATIC, distinguishing Soutullo as follows:

“In [Soutullo], the Supreme Court held that a title insurer could be held liable on a negligence claim for damages resulting from its failure to discover certain encumbrances. In reaching this holding, however, the Court noted the existence of a similar provision [to § 14(b) in this case] in that policy and then opined:
“ ‘This provision purports to release Commonwealth from all tort liability in connection with the issuance of its policies. Neither the record, nor the briefs, indicate that this provision could have formed the basis for the summary judgment. This specific provision was not cited by Commonwealth in its memorandum to the trial court in support of its motion for summary judgment or in its brief to this Court, and the trial court’s judgment does not refer to it. Therefore, we think that it would be improper for us to consider for the first time on appeal the legal effect that this provision might have with respect to Commonwealth’s potential liability.’
“[Soutullo, 646 So.2d] at 1356 n. 3. By contrast, FATIC here does rely on such language to argue against any negligence claim.
“This court agrees that the above language of the policy serves to bar M & F from asserting its negligence claim against FATIC. While M & F argues that such a ruling would contravene public policy of this State, this court disagrees. Decisions from the Alabama Supreme Court in the past few years make clear that a contract between parties may serve to trump what would otherwise be legal duties owing between them. An obvious example is a party’s ability to contract away liability otherwise sounding in tort for negligent conduct by having the other party sign a release to that effect.”

We likewise agree that § 14(b) precludes M & F’s negligence claim based on FAT-IC’s alleged breach of the duty of due care in preparing the policy.

M & F also argues, however, that it has asserted a separate negligence claim that is not subject to § 14(b) even if we hold that § 14(b) is part of the policy and should be enforced. Specifically, M & F argues that FATIC also was negligent in its provision of abstracting services, which, M & F argues, were provided under a separate contract, dated December 12, 2006, from the policy, which was effective January 24, 2007. However, the abstracted title search that forms the basis of M & F’s claim in this regard contains the following language:

“This title search is furnished to the agent identified above (‘Agent’) by [FATIC] for the sole purpose of examining title to the real property described herein in order to determine the insura-bility thereof. The Agent is hereby authorized to rely upon this title search for the issuance of a [FATIC] policy or policies pursuant to the terms of the agency agreement between [FATIC] and the Agent.
“THIS TITLE SEARCH IS FURNISHED BY [FATIC] SOLELY FOR USE BY THE AGENT IN CONNECTION WITH THE ISSUANCE OF A POLICY OR POLICIES OF TITLE INSURANCE OF [FATIC]. ALL OTHER USES AND PURPOSES ARE EXPRESSLY PROHIBITED, AND LIABILITY HEREUNDER IS LIMITED TO LIABILITY ARISING UNDER SUCH [FATIC] POLICY ISSUED IN RELIANCE UPON THIS TITLE SEARCH.”

(Capitalization in original.) The agent referred to is elsewhere identified as Blue Title, and this language unambiguously indicates that this abstracted title search was performed solely for Blue Title’s benefit and was not to be relied upon by any other party for any other purpose. Moreover, it notes that any liability is “limited to liability arising under such [FATIC] policy issued in reliance upon this title search.” Accordingly, this negligence claim fares no better than the negligence claim explicitly based on the policy, and the trial court properly entered a summary judgment in favor of FATIC.

We next turn to M & F’s breach-of-contract claim. Section 8(a) of the conditions and stipulations in the policy provides as follows:

“If [FATIC] establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability on title, or otherwise establishes the lien of the insured mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby.”

In its order entering a partial summary judgment for FATIC, the trial court held that FATIC had established that the mortgage held by M & F was valid and that the property identified as lot 95 was therefore marketable. Thus, the trial court concluded, FATIC had fulfilled its responsibilities under the policy pursuant to § 8(a). The trial court explained its rationale as follows:

“The court here recognizes that while the mortgage at issue clearly has a problem in that it references lot 95, which does not appear on the recorded plat, that deficiency does not necessarily make title unmarketable under Alabama law. At issue in Messer-Johnson Realty Co. v. Security Savings & Loan Co., 208 Ala. 541, 94 So. 734 (1922), was whether a title was good and merchantable, notwithstanding defects in the record of title. The Supreme Court recognized:
“ ‘The rule that the title must be free from reasonable doubt does not require a title absolutely free from all suspicion or possible defect, but only requires a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and out to accept.’
208 Ala. at 548, 94 So. at 735. See also Barnett v. Waddell, 248 Ala. 189, 27 So.2d 1 (1946) (a legal description, to be effective, need only excite reasonable inquiry).
“This court concludes that FATIC, in exercising its rights under section 4 of the policy’s conditions and stipulations [authorizing FATIC to take action to secure insured’s interest in insured property], successfully established the validity of M & F’s mortgage in the bankruptcy court. (That it did not pursue reformation in that forum was only because of [M & F’s] instruction not to go forward.) Further, while there is no lot 95 on the recorded plat, the deed from Old Towne Station, LLC, to The Shoppes at Old Towne Station, LLC, contained certain identifying information about the land being conveyed that would excite reasonable inquiry. FAT-IC subsequently recorded in the Lee County Probate Court an affidavit from Chris Eckroate on March 19, 2009, which provided further information about the land referred to as lot 95. Finally, the bankruptcy court’s orders, and the pleadings filed therein, were also recorded.
“... The court further declares that FATIC has complied with its obligations under the title insurance policy in question and that it has no further duty or obligation to M & F Bank under the current circumstances.”

M & F argues that the trial court erred because, M & F argues, the mortgage is invalid, regardless of any action taken in the bankruptcy proceedings, because, M & F claims, the mortgage is in violation of § 11-52-33, Ala.Code 1975, and the Auburn Subdivision Regulations. The only way the mortgage can be made valid and title to the property made marketable, M & F argues, is for the plat to be amended. Moreover, M & F argues that, even if the mortgage is valid, title to the property is still unmarketable.

With regard to the bankruptcy proceedings, we note that the trustee for The Shoppes at Old Towne Station moved the bankruptcy court to allow it to sell lot 95 free and clear of the mortgage- M & F purported to hold on it because, the trustee argued, that mortgage was invalid. The bankruptcy court rejected that motion, holding that the mortgage gave sufficient notice to any prospective purchaser of M & F’s claim to lot 95. As we stated in Ex parte M & F Bank, “[i]n so doing; the bankruptcy court declined to conclude that the M & F mortgage was invalid.” 58 So.3d at 115. M & F argues that declining to hold a mortgage invalid is not tantamount to holding it valid; however, we disagree in this instance. The bankruptcy court did not simply decline to rule on the validity of the mortgage; indeed, it could not have because the validity of the mortgage was the primary issue raised by the trustee in his motion seeking to sell lot 95. Transcripts of hearings conducted by the bankruptcy court in our record make this abundantly clear as well; the bankruptcy court definitively held that M & F’s mortgage is valid. No appeal was taken from the bankruptcy court’s judgment, and that judgment, along with the applicable filings by M & F and the trustee, were subsequently recorded in the Lee County Probate Office for the purpose of establishing that mortgage. An affidavit from the project engineer identifying the location of lot 95 had previously been filed in the probate office also. Accordingly, we hold that M & F’s mortgage on lot 95 is valid.

We also agree with the trial court’s conclusion that FATIC’s actions have “cure[d] the claim of unmarketability” of the title to lot 95, thus fulfilling its responsibilities under § 8(a) of the policy’s conditions and stipulations. On this issue, both parties cite Messer-Johnson Realty Co. v. Security Savings & Loan Co., 208 Ala. 541, 542-43, 94 So. 734, 735 (1922), in which we quoted the following excerpt from 39 Cyc. 1450(c):

“ ‘In equity a good title means a marketable title, and such a title is necessary and sufficient. And, according to the weight of authority, the same is now true at law, although it was formerly held, and seems to be still held in some jurisdictions, that at law a good title is any title not absolutely bad, and that a title which is not marketable may still be good.... Accepting the prevailing rule that a good title is a marketable title, a good or marketable title is a title which is free from reasonable doubt either in law or fact. In some jurisdictions it is held that it must be fairly deducible of record, while elsewhere it may in a clear case rest partly in parol unless the contract calls for a record title. It must consist of both the legal and equitable title. And it must not be in litigation, or be such as may subject the purchaser to the hazard and expense of future litigation. The rule that the title must be free from reasonable doubt does not require a title absolutely free from all suspicion or possible defect, but only requires a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. The fact that in the action between the vendor and the purchaser the court may consider the title good does not render it marketable. In the absence of an express stipulation therefor, a marketable title does not mean a title which satisfies the purchaser, or which his attorney pronounces marketable.’ ”

FATIC argues that, with all the additional materials it has filed in the Lee County Probate Office, the title to lot 95 is free from reasonable doubt and that a reasonable purchaser ought to be willing to accept it. M & F, however, argues that any purchaser of lot 95 is subject to the hazard and expense of future litigation until such time as the plat containing lot 95 is properly amended; therefore, it argues, the title is not marketable. See also Boylan v. Wilson, 202 Ala. 26, 28, 79 So. 364, 366 (1918) (“A misdescription in a not too remote deed in the chain of title, not capable of being corrected without litigation and the aid of parol evidence, operates to render the title unmarketable.”). M & F has also submitted affidavits from attorneys experienced in property law supporting its argument that the title is unmarketable.

However, in light of the materials that have been filed in the probate office, the judgment of the trial court, our holding in Ex parte M & F Bank, and our holding today, we do not agree that the subject title is unmarketable. There is no dispute as to what parcel of real property lot 95 refers to, and an examination of the records in the probate office readily identifies that property. However, if any doubt remains, the judgment we enter today should effectively quell any concern of future litigation regarding the title to lot 95. Although frivolous actions are always a possibility, .this Court has spoken regarding the title, and our holding in that regard becomes the law; our judgment is not subject to being reversed. For these reasons also, M & F cannot support its bad-faith-failure-to-pay claim. The judgment of the trial court entering a summary judgment in favor of FATIC on M & F’s claims is accordingly affirmed on all counts.

IV.

We next turn to FATIC’s argument that the trial court erred by entering a summary judgment in favor of M & F on its counterclaims. Two of those counterclaims alleged that M & F was liable for abuse of process based on its alleged attempt to wrongfully use the legal process to force FATIC to pay damages under the policy when FATIC had the right under the policy to first cure the defect in the mortgage with the legal description of lot 95; one counterclaim alleged abuse of process in the trial-court proceedings, and the other alleged abuse of process in the bankruptcy proceedings.

We have stated that “[t]he elements of the tort of abuse of process are 1) the existence of an ulterior purpose, 2) a wrongful use of process, and 3) malice.” C.C. & J., Inc. v. Hagood, 711 So.2d 947, 950 (Ala.1998) (citing Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221, 1225 (Ala. 1993)). The trial court held that FATIC failed to establish the first element of the existence of an ulterior purpose because, it held, there was no evidence indicating that M & F had any motive in bringing this action against FATIC other than as stated in its initial complaint — to recover on the policy. We agree. Ultimately the trial court held that FATIC was not required to make payment to M & F under the policy because it had in fact cured the defect in the mortgage; however, that was a legitimate issue, and the fact FATIC ultimately prevailed on this point is not evidence of an ulterior purpose on the part of M & F.

The trial court properly entered a summary judgment on these counterclaims. See also Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979) (“The lawsuit was confined to its regular and legitimate function in relation to the cause of action stated in the complaint. The lawsuit was not brought for some ulterior or collateral purpose.”).

FATIC also asserted a counterclaim alleging that “M & F, its agents, servants, and employees, and Fictitious Parties A, B, C and D conspired, connived and contrived to defraud FATIC to pay the limits of the policy when FATIC had the right to cure any problem in the legal description of the mortgage.” The trial court entered a summary judgment in favor of M & F on this claim because FATIC never subsequently identified any fictitiously named parties and the intra-corporate-conspiracy doctrine holds that a corporation may not be held liable for any alleged conspiracy with its own employees or agents. See, e.g., Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir.2010) (“Specifically, ‘[t]he intracorpo-rate conspiracy doctrine holds that acts of corporate agents are attributed to the corporation itself, thereby negating the multiplicity of actors necessary for the formation of a conspiracy.’ McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.2000).”). FATIC argues that a summary judgment should not have been entered on this counterclaim; however, it does not address the trial court’s invocation of the intracorporate-conspiracy doctrine in its appellate brief. That doctrine provides a sufficient ground for the summary judgment on this counterclaim, and the trial court did not err in this regard.

FATIC’s final two counterclaims are premised on § 4(d) of the conditions and stipulations in the policy, which provides:

“In all cases where this policy permits or required, [FATIC] to prosecute or to provide for the defense of any action or proceeding, [M & F] shall secure to [FATIC] the right to so prosecute or provide defense in the action or proceeding and all appeals therein, and permit [FATIC] to use, at its option, the name of [M & F] for this purpose. Whenever requested by [FATIC], [M & F], at [FATIC’s] expense, shall give [FATIC] all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting the settlement, and (ii) in any other lawful act which in the opinion of [FATIC] may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgaged, as insured. If [FATIC] is prejudiced by the failure of [M & F] to furnish the required cooperation, [FATIC’s] obligations to [M & F] under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation with regard to the matter or matters requiring such cooperation.”

FATIC argues that M & F breached this duty to cooperate and to act reasonably and is therefore liable for both negligence and breach of contract.

With regard to its negligence counterclaim, FATIC argues that “[t]he trial court determined effectively that M & F owed and breached its duties to perform and act in a reasonable manner pursuant to § 4 of the conditions and stipulations of the subject policy.” FATIC’s brief, p. 87. However, in its order entering a summary judgment in favor of M & F on this negligence counterclaim, the trial court in fact stated that “[a]ny obligations that either party owed to the other stem solely from the provisions of the title insurance policy at issue, and this court declined to recognize private duties above and beyond the scope of any such contractual obligations.” FATIC does not argue or cite any authorities identifying or otherwise explaining the duties M & F allegedly breached, nor does it explain in any detail the alleged breach of those duties; instead, it merely makes a global assertion that a duty was owed and breached and cites general caselaw regarding the elements of a negligence claim. These conclusory statements and broad arguments are insufficient to establish that the trial court erred by entering a summary judgment in favor of M & F on the negligence counterclaim.

FATIC’s final argument is that the trial court erred by entering a summary judgment in favor of FATIC on its breach-of-contract counterclaim. In the trial court, M & F argued that, even if it did technically breach the contract by failing to cooperate as required by § 4(d), FATIC would be relieved of only its obligations under the policy; it would not, M & F argued, be entitled to damages for breach of contract. The trial court agreed, stating:

“M & F argues that [§ 4(d) ] defines only a condition precedent to any further obligation on FATIC’s part under the policy, citing Wood v. Allstate Ins. Co., 21 F.3d 741 (7th Cir.1994), in support of this interpretation. There, the [United States Court of Appeals for the] Seventh Circuit recognized general law to the effect that ‘breach of the cooperation clause by the insured will operate to relieve the insurer of liability under the policy.’ Id. at 745, quoting 8 Appleman, Insurance Law and Practice, § 4772 (1981).
“There are numerous decisions by Alabama’s appellate courts to the effect that an insured’s failure to cooperate absolves the insurer from its responsibilities under the policy. For example, in General Mut. Ins. Co. v. Dennis, 280 Ala. 434, 438, 194 So.2d 838, 841 (1967), the Supreme Court held that ‘[t]he cooperation clause, which the insurer has a perfect right to insist upon, and which will be enforced where the insurer shows that it has been breached, ... means that the insured must live up to his obligation under the contract and cooperate with the insurer, and ... it is inherent in the word “cooperation” as between the insured and the insurer that there be no collusion with the plaintiff.’ The Dennis case, however, was a suit brought by the insurer seeking only a declaratory judgment that it was under no further obligation to the insured. This court’s research turns up no case in which the insurer sued for damages based on an alleged breach of such a cooperation clause, and FATIC has cited no such law.
“The court therefore agrees with M & F that any obligations it bore under § 4 are a condition precedent to FATIC’s continuing obligations under the policy but that such obligations may not form the basis of a breach-of-contract claim.”

Like the trial court, we are aware of no case in which an insurer^ has sued for damages based on the insured’s alleged breach of a cooperation clause. In light of that fact and the fact that § 4(d) provides for a specific nonmonetary remedy for such a breach — “[FATIC’s] obligations to [M & F] under the policy shall terminate” — we affirm the summary judgment entered by the trial court on FATIC’s breach-of-contract counterclaim.

V.

After M & F discovered a defect in the property description of a mortgage it had made, M & F sued FATIC, alleging negligence, breach of contract, and bad-faith failure to pay based on the title-insurance policy FATIC had issued M & F insuring M & F’s lien on the property covered by the mortgage. FATIC thereafter asserted counterclaims alleging abuse of process, conspiracy, breach of contract, and negligence. The trial court eventually entered a summary judgment in favor of FATIC on M & F’s claims and a summary judgment in favor of M & F on FATIC’s counterclaims. Those judgments are supported by the record and are accordingly affirmed.

1111525 — -AFFIRMED.

1111568 — AFFIRMED.

MOORE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      "1 According to an affidavit from Chris Eckroate, the project engineer for the Old Towne Station subdivision development, and as conceded by M & F’s attorney in a hearing on the motion below, a lot apparently was labeled ‘Lot 95’ on the plat after it was recorded.

      "2 Blue Title has since been dismissed from this action.”

      . The bankruptcy-court judge summed up this case and the facts underlying these counterclaims as follows during a hearing: "The reason [M & F] [does not] like the fact that [it] won is pretty obvious to me. [It] [does not] want the property because, guess what, it is probably not worth what's owed on it and [M & F] would rather have the title insurance money."

      . In a brief submitted to this Court in Ex parte M & F Bank, FATIC described the physical makeup of the jacket, which it referred to in that brief as the "FATIC 412 policy form,” and how a complete policy is assembled:
      "It is a single piece of paper, measuring eight and one-half inches by twenty-two inches, folded in half with the exclusions, conditions and stipulations being printed on the inside of the folded form, into which the schedules are inserted. As can readily be seen, the exclusions, conditions and stipulations cannot be separated from the cover except by tearing or cutting the policy. The schedules, any endorsements, and the FAT-IC 412 policy form comprise the complete insurance contract.”
      FATIC's brief in Ex parte M & F Bank, p. 7. See R & G, LLC v. RCH IV-WB, LLC, 122 So.3d 1253, 1258 (Ala.2013) (taking judicial notice of record in previous appellate proceedings between same parties to the extent it pertained to issues in the current appeal).

      . Rule 1004(3) provides as follows:
      “The original is not required, and other evidence of the contents of a writing is admissible, should there be no duplicate readily available to the proponent or witness, if ... [a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing....”

      . Section 11-52-33 forbids the owner of any land in a subdivision from transferring or selling or agreeing to sell or negotiating to sell "any land by reference to or exhibition of or by other use of a plat of a subdivision before such plat has been approved by the planning commission and recorded or filed in the office of the appropriate county probate office_” M & F argues that § 11-52-33 invalidates the mortgage it holds on lot 95 because the final plat that was recorded does not contain lot 95.
      Article 111(F)(3)(f) of the Auburn Subdivision Regulations provides that the final plat submitted to the probate office must contain "[n]umbers to identify each block and tract; and the area of each lot.”

      . Although the bankruptcy court has already held M & F’s mortgage to be valid, we also note that we see no conflict with § 11-52-33 or Article 111(F)(3)(f) of the Auburn Subdivision Regulations. As explained in Kilgore Development, Inc. v. Woodland Place, LLC, 47 So.3d 267, 271 (Ala.Civ.App.2009), the subdivision-control statutes, § 11-52-30 et seq., Ala.Code 1975, "are aimed at preventing developers from selling tracts of land within a subdivision before the plat of that subdivision has been approved and recorded.” There is no dispute that the Old Towne Station plat had been approved and recorded and that that plat contains the property referred to as lot 95 in the mortgage, though it is not properly labeled as such on the plat. Moreover, Article 111(F)(3) of the Auburn Subdivision Regulations concerns the information that must be on a final plat before that plat is submitted to the planning commission for approval. Subsection (f) provides that numbers must identify "each block and lot” on the plat, and, although it would have apparently been justified in declining to approve the Old Towne Station plat based on the failure to comply with this requirement, the planning commission apparently elected not to do so.

      . See In re Lee, 461 Fed.App'x 227, 232 (4th Cir.2012) (not selected for publication in the Federal Reporter) ("Notably, real property law is an area in which federal courts are especially deferential to state courts. See Dayton & M. R. Co. v. Comm'r, 112 F.2d 627, 630 (4th Cir.1940) (noting that even prior to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) it was 'well settled that we were bound by state decisions as to rights of property and other matters of local law'); Warburton v. White, 176 U.S. 484, 496, 20 S.Ct. 404, 44 L.Ed. 555 (1900).").

      . M & F also argues that it would be inappropriate for this Court to consider FATIC's claim that M & F committed the tort of abuse of process in the bankruptcy action because the bankruptcy court is capable of policing matters within its own jurisdiction. See MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 916 (9th Cir.1996) (stating that debtor’s malicious-prosecution claim against creditor "should have been brought in the bankruptcy court itself, and not as a separate action in the district court"). We have already determined, however, that, as a matter of law, FATIC was not entitled to relief on its abuse-of-process claims, so it is unnecessary for us to consider this additional ground in support of the trial court’s judgment.


source: Caselaw Access Project

author: SHAW, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte GENERAL MOTORS OF CANADA LIMITED (In re Gerardo Poole v. General Motors Corporation et al.).
    1120629.
    Supreme Court of Alabama.
    Sept. 13, 2013.
    Rehearing Denied Nov. 22, 2013.

      M. Christian King and Nikaa Jordan of Lightfoot, Franklin & White LLC, Birmingham; Franklin P. Brannen, Jr., of King & Spalding LLP, Atlanta, Georgia; and Steven K. Winters of Thompson, Thompson & Winters, Butler, for petitioner.
    Christopher D. Glover of Beasley Allen Crow Methvin Portis & Miles, P.C., Montgomery, for respondent.
   SHAW, Justice.

General Motors of Canada Limited (“GM Canada”) petitions this Court for a writ of mandamus directing the Choctaw Circuit Court to enter a summary judgment in its favor on the ground that the plaintiffs substitution of GM Canada for a fictitiously named defendant was made after the expiration of the applicable statute of limitations and does not relate back to the filing of the original petition. We grant the petition and issue the writ.

Facts and Procedural History

The complaint in the underlying action was filed on April 6, 2009. It alleged that the plaintiff, Gerardo Poole, was injured in a motor-vehicle accident that occurred on April 11, 2007. Poole sought damages on a products-liability claim against General Motors Corporation n/k/a Motors Liquidation Company (“MLC”), the company that allegedly designed, tested, made parts of, and distributed the 2004 Chevrolet Impala automobile that Poole was operating at the time of the accident, and Stewart Motor Company, the dealership that sold the vehicle to Poole’s mother. Poole’s complaint also included fictitiously named defendants.

On June 10, 2009 — two months after the expiration of the two-year statutory limitations period — Poole sought leave from the trial court to amend his original complaint to substitute GM Canada for the fictitiously named defendants. In support of that request, Poole’s counsel submitted affidavit testimony indicating that he had been diligently investigating in order to identify all potentially responsible parties and had, on June 10, 2009, learned for the first time that the vehicle had been manufactured by GM Canada. The trial court granted Poole’s motion, and, on June 15, 2009, Poole filed an amendment substituting GM Canada for the fictitiously named defendants.

GM Canada filed an answer and raised as an affirmative defense that Poole’s claims were barred by the applicable statute of limitations. Thereafter, GM Canada sought a summary judgment in its favor on that ground. Specifically, it argued that it was added as a party after the two-year statute of limitations had expired and that its substitution as a party did not “relate back” to the date the original complaint was filed. Following a hearing, the trial court denied GM Canada’s motion. GM Canada then petitioned this Court for a writ of mandamus.

Standard of Review

This Court will issue a writ of mandamus when the petitioner demonstrates: “(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). This Court generally does not review by writ of mandamus a trial court’s decision denying a motion for a summary judgment; however, an exception exists in situations like the one before us:

“ ‘... In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiffs claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So.2d 531 (Ala.1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So.2d 948 (Ala.1995) (reviewing the merits of the trial court’s order denying the defendant’s motion for a summary judgment, but denying the defendant’s petition for a writ of mandamus); Ex parte FMC Corp., 599 So.2d 592 (Ala.1992) (same); Ex parte Klemawesch, 549 So.2d 62, 65 (Ala.1989) (issuing the writ and directing the trial court “to set aside its order denying [the defendant’s] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion”).... ’
“Ex parte Jackson, 780 So.2d 681, [684] (Ala.2000).”

Ex parte Mobile Infirmary Ass’n, 74 So.3d 424, 427-28 (Ala.2011).

Discussion

The parties do not dispute that Poole’s claims are covered by the two-year statute of limitations found in Ala.Code 1975, § 6-2-38(0- Poole was injured on April 11, 2007, and his original complaint was timely filed on April 6, 2009. It is undisputed that on June 10, 2009, when Poole sought leave to add GM Canada, the two-year limitations period had expired.

Rule 9(h), Ala. R. Civ. P., provides a mechanism by which a party who is “ignorant of the name of an opposing party” may designate that party by a fictitious name. When the opposing party’s true name is later discovered, the party may amend the pleadings to substitute that true name. Under Rule 15(c)(4), Ala. R. Civ. P., such an amendment “relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).” However, the relation-back principle applies only when the plaintiff “is ignorant of the name of an opposing party.” Rule 9(h); Harmon v. Blackwood, 623 So.2d 726, 727 (Ala.1993) (“In order to invoke the relation-back principles of Rule 9(h) and Rule 15(c), a plaintiff must ... be ignorant of the identity of that defendant....”); Marsh v. Wenzel, 732 So.2d 985 (Ala.1998).

“ ‘The requirement that the plaintiff be ignorant of the identity of the fictitiously named party has been generally explained as follows: “The correct test is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.” Davis v. Mims, 510 So.2d 227, 229 (Ala.1987).
“Crawford v. Sundback, 678 So.2d 1057, 1060 (Ala.1996).”

Mobile Infirmary, 74 So.3d at 429 (emphasis added). Thus,

“ ‘[i]f the plaintiff knows the identity of the fictitiously named parties or possesses sufficient facts to lead to the discovery of their identity at the time of the filing of the complaint, relation back under fictitious party practice is not permitted and the running of the limitations period is not tolled.’

74 So.3d at 430 (quoting Clay v. Walden Joint Venture, 611 So.2d 254, 256 (Ala. 1992) (emphasis added)).

GM Canada contends that Poole did not act with due diligence in attempting to discover its identity because, it argues, Poole and/or his counsel of record should have known that GM Canada manufactured and/or assembled, at least in part, the subject vehicle. Specifically, GM Canada notes that, pursuant to the Code of Federal Regulations, see 49 C.F.R. § 567 (2000), it was required to affix a label to the driver’s door area of the Impala stating its name as the manufacturer of the vehicle. In its summary-judgment filings below, GM Canada provided a photograph of the door of the vehicle depicting a clearly legible label that indicated that the motor vehicle was “MFD BY GENERAL MOTORS OF CANADA LTD.” GM Canada thus argues that Poole had sufficient and readily available facts — via the door label — to lead to the discovery of its identity. We agree.

In Ex parte Mobile Infirmary, supra, the plaintiff, Shaw, attempted to file a wrongful-death action against several hospitals who had treated the decedent. Shaw filed the action against an entity called Infirmary Health System, Inc. Later, after the statutory limitations period had run, Shaw attempted to substitute Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center (“Mobile Infirmary”) for a fictitiously named defendant. In addressing whether this substitution related back to the filing of the original complaint, we stated:

“As this Court said in Ex parte Snow, 764 So.2d 531, 537 (Ala.1999), an amendment substituting a new defendant in place of a fictitiously named defendant will relate back to the filing of the original complaint only if the plaintiff acted with ‘due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’ Ignorance of the new defendant’s identity is no excuse if the plaintiff should have known the identity of that defendant when the complaint was filed....
“The evidence attached to Mobile Infirmary’s summary-judgment motion indicates that Shaw did not act with due diligence. When he filed the original complaint, [the decedent’s] family had possessed her medical records for 20 months, and Shaw had possessed [the decedent’s] medical records for at least 3 months, including various paperwork from Mobile Infirmary, which indicated that [the decedent] had been admitted to the Medical Center, had undergone surgery there, and had been treated there following her surgery. A reasonably diligent plaintiff possessing that information should have at least attempted to identify the corporation doing business as Mobile Infirmary Medical Center and include it as a defendant. See Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995) (holding that where plaintiff knew the allegedly defective forklift was manufactured by ‘Clark’ and possessed forklift manuals providing Clark’s name but did not attempt to amend the complaint until after the limitations period had run, the plaintiff ‘did not act diligently in attempting to learn Clark Equipment’s identity). As this Court has said,
“ ‘[i]f the plaintiff knows the identity of the fictitiously named parties or possesses sufficient facts to lead to the discovery of their identity at the time of the filing of the complaint, relation back under fictitious party practice is not permitted and the running of the limitations period is not tolled.’
“Clay v. Walden Joint Venture, 611 So.2d 254, 256 (Ala.1992).”

74 So.3d at 429-30 (emphasis added). See also Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala.2008) (finding that a substitution of a party for a fictitiously named party did not relate back where the plaintiff could have discovered an insurer’s identity by, among other things, examining her policy or reviewing an accident report), and Marsh v. Wenzel, 732 So.2d 985, 990 (Ala.1998) (holding that one could not reasonably conclude that a plaintiff was ignorant of the name of a pathologist when the pathologist’s name was set forth in her medical records).

Like the plaintiff in Mobile Infirmary, Poole had a source of information that would have led him to the identity of the manufacturer of the Impala — that vehicle’s legally required manufacturer’s identification label. Poole argues, however, that he nevertheless acted with due diligence in investigating and discovering GM Canada’s identity. Specifically, he argues that his counsel of record had assumed representation approximately one month before the filing of the original complaint, and that counsel did not have access to the vehicle, which, he says, was in the possession of his prior counsel.

The purported lack of possession of an allegedly defective product that is the subject of a products-liability action, this Court has previously held, does not necessarily excuse the failure to examine it to learn its manufacturer. In Jones v. Resor-con, Inc., 604 So.2d 370 (Ala.1992), the plaintiff, Jones, was injured at his place of employment, USX, by a blower fan. He attempted to initiate a products-liability action against the manufacturer of the fan; after the statute of limitations had run, Jones discovered the name of, and attempted to substitute, the actual manufacturer of the fan, Resorcon, Inc., as a party for a fictitiously named defendant.

This Court held that Jones had failed to exercise due diligence in discovering Re-sorcon’s identity. Specifically, the blower fan in question was marked with an identification plate indicating that Resorcon was the manufacturer. Jones’s counsel had requested from USX the opportunity to inspect the fan to determine the manufacturer, but his request had been denied. We held that the failure of Jones’s counsel to do more to inspect the fan to discover the name of the manufacturer indicated a lack of due diligence:

“It is relevant to the question of due diligence that an inspection of the fan would almost certainly be necessary to maintain the product liability action against any defendant. If Jones’s assertions that USX refused access are true, then due diligence would have required an attempt to obtain a court-ordered inspection.”

Jones, 604 So.2d at 373. Thus, despite the fact that the information in question — the identity of the manufacturer of the fan as disclosed on the identification plate — was held in the hands of a noncooperative third party, due diligence required that Jones act to inspect the allegedly defective product and to discover that information. See also Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995) (holding that the plaintiff failed to exercise due diligence to learn the identity of a forklift manufacturer because, among other things, “Clark Equipment forklifts have their names clearly listed on the nameplate_”).

In the instant case, unlike Jones, the information needed by Poole — the identification of the manufacturer of the motor vehicle as stated on the vehicle — was actually in the possession of his own agents or his family. There is no allegation that either Poole or his subsequent counsel was denied access to the motor vehicle; instead, Poole’s counsel stated in an affidavit that no one acted to “physically inspect the vehicle prior to filing the lawsuit.” Further, if Poole had been denied access to the Impala, under Jones, due diligence would have required him to seek a court order to inspect it.

Poole contends that MLC’s answer “misled Plaintiffs Counsel to believe [MLC] was in fact the primary manufacturer.... ” Poole’s brief, at 18. However, we see nothing misleading in MLC’s answer, in which it “admit[ted] that it designed, tested, engineered, in part, manufactured, in part, marketed and sold to authorized distributors the subject 2004 Chevrolet Impala.” MLC’s answer was filed after the expiration of the applicable limitations period and, as the emphasized portions above indicate, suggests that MLC acknowledged only that it was partially responsible for the vehicle’s manufacture. It does not support the belief that MLC accepted full — or even primary — responsibility for the manufacture of the alleged defective vehicle, as it appears to explicitly state that some additional party was responsible for other parts of the design, testing, manufacturing, and marketing process.

Poole, citing Ex parte Nail, 111 So.3d 125 (Ala.2012), appears to contend that an inspection of the vehicle for manufacturing information before filing the complaint would have amounted to more than due diligence. However, this case presents none of the legibility issues requiring extensive formal discovery and/or “ ‘detective work’ ” as was the case in Nail or in Oliver v. Woodward, 824 So.2d 693, 699 (Ala. 2001). Instead, as GM Canada argues, Poole “could have discovered [GM Canada’s] identity ... simply by examining [the vehicle].” Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (2008). Here, nothing prevented Poole’s identification of GM Canada as a defendant other than his failure to conduct an inspection of the allegedly defective vehicle.

Because the label on the vehicle, which was required by law, was conspicuous, legible, and in the possession of Poole’s agents or his family, he should have readily discovered it, and his failure to do so amounted to a failure to act with due diligence. The “ ‘ “undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue,” ’ ” Ex parte Mobile Infirmary, 74 So.3d at 428 (quoting Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000), quoting in turn Snow, 764 So.2d at 537); thus, the trial court had no discretion to do anything other than to grant GM Canada’s motion seeking a summary judgment in its favor on the statute-of-limitations ground. For the foregoing reasons, we grant GM Canada’s petition and issue a writ of mandamus directing the Choctaw Circuit Court to enter an order granting GM Canada’s motion for a summary judgment.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent because General Motors of Canada Limited (“GM Canada”) has not demonstrated that it is entitled to the writ of mandamus. GM Canada focuses on Gerardo Poole’s burden of demonstrating that he acted with due diligence to ascertain GM Canada’s identity. However, GM Canada has its own burden “to show that each element required for issuance of the writ [of mandamus] has been satisfied.” Ex parte Patterson, 853 So.2d 260, 263 (Ala.Civ.App.2002). GM Canada has not pleaded the required elements for the issuance of the writ, let alone demonstrated that each element has been satisfied.

I. Standard of Review

Our standard for mandamus relief is as follows:

“A writ of mandamus is an extraordinary remedy, and one petitioning for it must show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”

Ex parte Jackson, 780 So.2d 681, 683 (Ala. 2000). “The general rule is that ‘ “a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.” ’ In all but the most extraordinary cases, an appeal is an adequate remedy; however, there are exceptions .... ” 780 So.2d at 684 (citation omitted).

One exception involves fictitiously named parties and the relation-back doctrine:

“ ‘[T]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.’ Subject to a narrow exception, that statement remains true. In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiffs claim was barred by the applicable statute of limitations.”

780 So.2d at 684 (quoting Ex parte South-land Bank, 514 So.2d 954, 955 (Ala.1987) (citation omitted)). “ ‘[A] writ of mandamus is proper ... if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’” Id. (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999)).

GM Canada, however, presents the writ-of-mandamus standard of review in an extremely truncated fashion. GM Canada’s standard of review and argument omit entirely any reference to the four elements a petitioner must show in order for mandamus to lie.

I also note that it is not enough that GM Canada demonstrates that this case is one of the “narrow class of cases involving fictitious parties and the relation-back doctrine.” Ex parte Jackson, 780 So.2d at 684. Rather, GM Canada must also demonstrate it satisfies the four elements necessary for mandamus relief.

II. GM Canada Cannot Show That it is Entitled to Mandamus Relief

Even if GM Canada carried its burden by properly pleading its entitlement to the writ of mandamus in this case, I believe mandamus would not lie. First, GM Canada lacks a clear legal right to the order sought. The clear legal right must be an “indisputable right to a particular result.” Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987) (emphasis added). “[T]he right to the relief sought [must be] clear and certain, with no reasonable basis for controversy.” Ex parte Nissei Sangyo America, Ltd,., 577 So.2d 912, 914 (Ala.1991) (emphasis added). “In a case involving fictitiously named defendants, the answer to [the] question [whether the amendment relates back to the filing of the original complaint] depends upon the plaintiff’s conduct.” Ex parte Mobile Infirmary Ass’n, 74 So.3d 424, 428 (Ala.2011) (emphasis added).

A petitioner can hardly show a clear legal right to a summary judgment where relevant facts are disputed in the trial court. “A writ of mandamus is proper ... if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant ....” Ex parte Snow, 764 So.2d 531, 537 (Ala.1999) (emphasis added). The main opinion even recognizes the uncertainty of an important fact in this case: whether Poole had sufficient and readily available facts to lead to the discovery of GM Canada’s identity. 144 So.3d at 240. Specifically, as to who possessed the Chevrolet Impala vehicle at issue, the opinion equivocates, stating on one hand it was “in the possession of Poole’s agents or his family,” 144 So.3d at 242 (emphasis added), while conceding that “[t]he location of the Impala for the nearly two-year period preceding the filing of the complaint is unclear. However, the materials before us suggest that the vehicle was owned by Poole’s mother and that, for a period before and after the complaint was filed, the vehicle was in the possession of attorneys retained by Poole.” 144 So.3d at 241 n. 6.

According to the record, when Poole’s attorney filed the complaint on April 6, 2009, he was not aware of the location of the Impala, nor was he aware who had possession of the vehicle. Poole’s attorney also stated that neither “[Poole] nor anyone acting on [Poole’s] behalf had possession of the vehicle.” Indeed, it was not until after the June 10, 2009, motion to amend the complaint that Poole’s attorney learned that the Impala was in the possession of one of Poole’s prior attorneys. The facts do not indicate whether Poole’s prior attorney acted as the “referring attorney” to Poole’s current attorney or was twice removed from the attorney-client relationship. Further, the facts do not indicate whether Poole’s prior attorney undertook representation on this matter, which would make his prior attorney his agent for this matter.

With such a significant fact still in dispute, I fail to see how the main opinion glosses over the question in order to issue the writ of mandamus here. When there is no clear factual record on the past possession and location of the Impala and the label that indicates its manufacturer, there can be no clear legal right to a summary judgment.

The main opinion relies primarily upon Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992) (concerning a label on a blower fan), and Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.1995) (concerning a label on a forklift). In both of those cases, the presence of a manufacturer’s label was only one aspect of the due-diligence inquiry. In Jones, the plaintiff went to an industrial plant and visually inspected a label that identified the fan manufacturer, but read the label incorrectly. 604 So.2d at 373. We observed: “When Jones did begin efforts to determine the true manufacturer, his efforts were sporadic and ineffectual, and he did not amend to state a claim against the true manufacturer until September 17, 1991.” 604 So.2d at 374. In Jones, the plaintiff filed a motion to substitute Resorcon for a fictitiously named defendant about 14 months after filing his initial complaint and after he had received the codefendant’s answer denying that it had manufactured the fan. Id. at 372.

In Fulmer, “although Mr. Fulmer talked with three witnesses concerning the accident, he did not inquire as to the identity of the manufacturer of the forklift; and ... [later] learned that the forklift was a ‘Clark’ model, but still did nothing calculated to determine the full name of the manufacturer.” 654 So.2d at 46. The plaintiff in Fulmer attempted to amend his complaint and substitute Clark Equipment for a fictitiously named defendant nearly a year after he had filed his initial complaint. 654 So.2d at 45.

Unlike the plaintiff in Jones, Poole was unable to investigate the vehicle label by himself, having been rendered a quadriplegic in the automobile accident. Unlike the plaintiff in Fulmer, Poole had not learned anything indicating that the Impala was a “GM Canada” model. In contrast to the plaintiffs’ dilatory actions in Jones and Fulmer, Poole’s attorney diligently attempted to discover the manufacturer’s identity. Poole’s complaint specifically included as a fictitiously named defendant that “corporation ... which designed, engineered, tested, manufactured ... the 2004 Chevrolet Impala.” Poole’s attorney served discovery with the initial complaint on General Motors Corporation that sought the identity of the manufacturer of the Impala. Poole’s attorney later discovered the identity of GM Canada and immediately filed the motion to substitute GM Canada for the fictitiously named party. Unlike the 14-month delay in Jones and the 12-month delay in Fulmer, the delay between Poole’s filing the initial complaint and his filing the motion to substitute GM Canada was only 2 months.

Upon consideration of all the facts before us, “reasonable people could differ as to whether [Poole] proceeded in a reasonably diligent manner in identifying [GM Canada].” Ex parte FMC Corp., 599 So.2d 592, 595 (Ala.1992). There is a “reasonable basis for controversy” in the facts that renders GM Canada’s right to relief unclear and uncertain. Nissei Sangyo, 577 So.2d at 914. A plaintiffs due diligence in identifying a fictitiously named defendant should not be reduced to a one-factor test of whether a car had a manufacturer’s label, and, indeed, in Jones and Fulmer the Court did not so hold. Because reasonable people could dispute whether Poole exercised due diligence here, GM Canada does not have an indisputable or clear legal right to a summary judgment.

Second, where there is no “clear legal right” to the order sought, there can be no imperative duty for the trial court to act. “[W]here the right sought to be enforced is a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion, there can be but little doubt or difficulty in determining the propriety of the remedy by mandamus.” Bank of Heflin v. Miles, 294 Ala. 462, 466-67, 318 So.2d 697, 701 (1975) (emphasis added). The trial court denied GM Canada’s motion for a summary judgment. “After careful consideration of [GM Canada’s] motion and [Poole’s] response in opposition and his supplemental report,” the trial court found that Poole “exercised due diligence in ascertaining the identity of [GM] Canada and amending the Complaint to include that Defendant as a party to this litigation.” The trial court in carefully considering GM Canada’s motion did not clearly exceed its discretion; neither did the trial court act in an arbitrary and capricious manner. Here, the evidence simply does not indisputably show that Poole failed to act with due diligence in identifying GM Canada as the party to be sued. This Court should not second-guess the reasonable judgment of the trial court.

Third, GM Canada has not demonstrated that it lacks another adequate legal remedy. We have previously stated:

“The trial court’s order denying Dr. Jackson and Brookwood’s motion for a summary judgment is the kind of interlocutory order that is appropriate for review under the procedure set forth in Rule 5, Ala. R.App. P. Dr. Jackson and Brookwood did not attempt to use that procedure. If they had asked the trial court to give the certification required by that rule and the trial court had refused, this might be a different case....
“This case is not within an exception to the rule that a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment. The petitioners could have sought permission to appeal that order, but they did not. Because another adequate remedy, i.e., an appeal, was available, we deny the petition for the writ of mandamus.”

Ex parte Jackson, 780 So.2d at 685. Because GM Canada could have sought permission to appeal the trial court’s order under Rule 5, Ala. R.App. P., and did not, we should deny its petition for a writ of mandamus.

III. Conclusion

Because GM Canada completely failed to plead the required elements for mandamus relief, the Court must deny the writ. Moreover, if GM Canada had adequately pleaded the required elements, GM Canada would still not be entitled to the writ. GM Canada has not demonstrated that Poole indisputably failed to exercise due diligence in discovering its identity. Thus, GM Canada, even under the fictitious-party exception, is not entitled to the writ. I therefore dissent.

      . General Motors and, thus, MLC filed for bankruptcy protection on June 1, 2009. In conjunction with that bankruptcy proceeding, Poole ultimately settled his claim against MLC. Nothing in the record before us suggests that GM Canada participated in that bankruptcy filing.

      . More specifically, Poole’s complaint identified the following fictitiously named defendants:
      "Fictitious Defendant ‘A’ [is] that person, corporation or other legal entity who or which designed, engineered, tested, manufactured, marketed and distributed the 2004 Chevrolet Impala or any components thereof which is the subject matter of this lawsuit; Fictitious Defendant 'B' [is] that person, corporation or other legal entity who or which designed, manufactured, engineered, sold or otherwise placed into the stream of commerce any component parts of the 2004 Chevrolet Impala which is the subject matter of this lawsuit; Fictitious Defendant ‘C’ [is] that person, corporation or other legal entity who tested and developed the warnings for or developed the manual for the 2004 Chevrolet Impala which is the subject matter of this lawsuit; Fictitious Defendant 'D' [is] that person, corporation or other legal entity whose negligence, wantonness or other wrongful conduct combined and concurred with the conduct of the defendants herein to cause the injuries as alleged herein....”

      . Poole’s counsel stated that he discovered GM Canada’s identity by means of an Internet resource.

      . Although the motor-vehicle accident made the subject of the underlying action actually occurred in Mississippi, the parties appear to agree that Alabama’s statute-of-limitations provision applies.

      . Rule 9(h), Ala. R. Civ. P., provides:
      “When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

      . The location of the Impala for the nearly two-year period preceding the filing of the complaint is unclear. However, the materials before us suggest that the vehicle was owned by Poole’s mother and that, for a period before and after the complaint was filed, the vehicle was in the possession of attorneys retained by Poole.

      . We note that, in the trial court, the affidavit of Poole’s counsel stated not that he had been misled, but that it was his ''interpretation” of MLC’s answer that "led” him "to believe” that MLC had manufactured the vehicle.

      . Poole’s counsel also testified that, prior to filing the request to substitute GM Canada for the fictitiously named defendants, he collected certain evidence regarding the vehicle, such as an accident report and photographs, and argues that "all of these documents and photographs identified [MLC] as the proper product liability defendant.” Poole's brief, at 17. However, we note that in the trial court it was asserted that these items did not "reveal[] [GM] Canada as the manufacturer of the subject vehicle,” not that they indicated that GM Canada was the manufacturer. We have examined the evidence cited for this assertion, " 'Ex. B' to Def.’s Attach. 7,” which appears to be photographs of the Impala; none of those photographs seems to indicate either MCL or GM Canada as the manufacturer.

      . See Ex parte Nail, 111 So.3d 125, 131 (Ala. 2012) (" ‘Due diligence means ordinary, rather than extraordinary, diligence.’ " (quoting United States v. Walker, 546 F.Supp. 805, 811 (D.C.Haw. 1982))).


author: PER CURIAM. BRYAN, Justice

text:
    BARRON FAN TECHNOLOGY, INC. v. PELL CITY INDUSTRIAL SERVICES, INC.
    1111627.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    Rehearing Denied Dec. 13, 2013.
    Richard E. Smith, Greer B. Mallette, and Abbott Marie Jones of Christian & Small LLP, Birmingham, for appellant.
    Harry P. Long, Anniston; and Luke Montgomery of Stringer, Montgomery & Montgomery, Talladega, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

MOORE, C.J., arid STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

BOLIN and BRYAN, JJ., dissent.

BRYAN, Justice

(dissenting).

The majority affirms the judgment entered by the St. Clair Circuit Court (“the trial court”) on a jury verdict in favor of Pell City Industrial Services, Inc. (“Pell City”). Because I believe the evidence is insufficient to support relief based upon a theory of quantum meruit, I would reverse the trial court’s judgment and remand this cause for a new trial. Therefore, I must respectfully dissent.

“A claim of quantum meruit, or quasi-contract, is a request for equitable relief based on the principle, ‘ “that if one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the one who so accepts with knowledge, to pay the reasonable value of such services rendered.” ’ Frank Crain Auctioneers, Inc. v. Delcham/ps, 797 So.2d 470, 474 (AIa.Civ.App.2000) (quoting Richards v. Williams, 231 Ala. 450, 453,165 So. 820 (Ala.1936)).
““‘In order to succeed on a claim based on a theory of quantum meruit, the plaintiff must show that it had a reasonable expectation of compensation for the services. Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345 (Ala.1991). However, ‘[w]hen an express contract exists, an argument based on a quantum meruit recovery in regard to an implied contract fails.’ Brannan & Guy, [.P.C'. v. City of Montgomery,] 828 So.2d [914] at 921 [ (Ala.2002) ]. The existence of an express contract on a given subject generally excludes an implied agreement on the same subject. Vardaman v. Florence City Bd. of Educ., 544 So.2d 962 (Ala.1989).” ’
“Mahoney v. Loma Alta Prop. Owners Ass’n, 4 So.3d 1130, 1135 (Ala.Civ.App. 2008) (quoting Mantiply v. Mantiply, 951 So.2d [638] at 656 [(Ala.2006)]).”

Carroll v. LJC Defense Contracting, Inc., 24 So.3d 448, 458-59 (Ala.Civ.App.2009)(emphasis added).

It is undisputed that an express contract existed between Pell City and Barron Fan Technology, Inc. (“Barron Fan”), providing for the replacement of the old baghouse modules with new baghouse modules. Thus, whether Pell City was entitled to assert a claim based on a theory of quantum meruit is dependent upon whether the express contract covered the same subject as the alleged implied contract.

The alleged implied contract here arises from a conversation that purportedly took place between Barron Fan’s inside salesman and Pell City’s project manager, in which they agreed that Pell City would perform additional work and Pell City and Barron Fan would determine the compensation for that work after the work was performed. Both parties agree that the additional work constituted a “change in [the] job scope” of the project, which is an event covered under an express provision of Barron Fan and Pell City’s contract. “The existence of an express contract on a given subject generally excludes an implied agreement on the same subject.” Mantiply v. Mantiply, 951 So.2d 638, 656 (Ala.2006). Thus, although the jury could have found that a conversation did take place and that the conversation was a modification of the express contract (i.e., an agreement to perform and provide compensation for the additional work without filing a change-order form or obtaining the customer’s signature), such a conversation could not support Pell City’s claim based on a theory of quantum meruit regarding the additional work.

The trial court instructed the jury on both breach-of-express-contract and quantum meruit theories, and the jury returned a general verdict in favor of Pell City.

“ ‘When a jury returns a general verdict upon two or more claims, as it did here, it is not possible for this Court to determine which of the claims the jury found to be meritorious. Therefore, when the trial court submits to the jury a “good count” — one that is supported by the evidence — and a “bad count” — one that is not supported by the evidence — and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. In such a case, a judgment entered upon the verdict must be reversed.’ ”

Lammore v. Dubose, 827 So.2d 60, 63 (Ala.2001) (quoting Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1257 (Ala.1998)). Because Pell City’s quantum meruit claim was not supported by substantial evidence and because it is unclear from the record what portion, if any, of the jury’s general verdict was awarded to Pell City for its quantum meruit claim, I would reverse the trial court’s judgment entered on that jury verdict and remand this cause for a new trial.

      . A "baghouse” is used to filter lime particulate out of the air. Barron Fan’s brief, at 4.

      . The contract provides:
      “CHANGES IN THE JOB SCOPE. Significant changes in the scope made by the customer will require a change order. A ‘CHANGE ORDER FORM’ will be filled out and signed by the customer prior to proceeding by [Pell City] with the job.

      "CHANGES IN THE JOB SCOPE AND ADDITIONAL CHARGES will be reconciled as they occur and will require customer authorized signatures on the 'Field Services Daily Time & Material’ form.... Once signed off by a customer representative this form becomes a billing document and will be invoiced by [Pell City] immediately & due in accordance with our standard Terms and Conditions.”
      (Capitalization in original.)