source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Garfield W. IVEY, Jr. v. James C. KING.
    1111626.
    Supreme Court of Alabama.
    Aug. 16, 2013.
    Rehearing Denied Oct. 11, 2013.

      Lisa M. Ivey, Jasper, for appellant.
    David C. Skinner, Birmingham, for ap-pellee.
   PARKER, Justice.

Garfield W. Ivey, Jr., appeals a judgment entered by the Walker Circuit Court (“the circuit court”) in favor of James C. King. We affirm the circuit court’s judgment.

Facts and Procedural History

The entirety of the facts and procedural history surrounding this case are lengthy and appear to be complex; however, the relevant facts and procedural history that form the basis of this appeal are relatively straightforward, as are the relevant legal issues. On June 3, 2007, King sued Dollar & Eads, P.C., Rhonda Dollar, and Phillip Eads (hereinafter collectively referred to as “Dollar & Eads”), Peggy G. Northcutt a/k/a Peggy G. Fannin (“Northcutt”), who was employed by Dollar & Eads, P.C., and A1 Northcutt (all hereinafter collectively referred to as “the defendants”) asserting various claims related to the alleged embezzlement of funds belonging to dissolved entities in which King and Ivey were members. In a separate action (case number CV-05-197, Ivey sued the defendants based on the same alleged conduct. King filed a motion to consolidate his action against the defendants with Ivey’s action against the defendants. The case-action summary indicates that King’s motion to consolidate was “filed” and “docketed,” but nothing in the record indicates that the circuit court actually granted King’s motion or entered an order consolidating the actions. In some of the numerous orders entered by the circuit court it appears that the circuit court was perhaps operating under the assumption that King’s action and Ivey’s action had been consolidated. However, nothing in the record indicates that the circuit court ever consolidated the actions. Therefore, for proposes of this appeal, we conclude that King’s action against the defendants and Ivey’s action against the defendants were not consolidated, and only King’s action is the subject of this appeal.

It is undisputed that King and Ivey entered into a settlement agreement with Dollar & Eads, which settled King’s and Ivey’s respective claims against Dollar & Eads for $627,684 (“the settlement”). King set forth some of the relevant undisputed facts leading up to and following the settlement in a motion for a summary judgment filed by King, the legal arguments of which will be discussed below, as follows:

“3. In November of 2007, King and Ivey attended a mediation with North-cutt’s insurer!] and agreed that the insurer would pay a lump sum of $627,684 to King and Ivey. King and Ivey further agreed that the settlement check would be deposited into Ivey’s trust fund account and that they would divide the amount among themselves— 10% to Warren [a third party who, along with King and Ivey, was also a member of one of the entities being dissolved] and 45% to each King and Ivey....
“4. King and Ivey agreed to split the money according to the respective ownership interests of the dissolving entities. Restated King would receive $302,606.50 and Ivey would receive $302,606.50 after Warren’s 10% ownership interest in King, Ivey & Warren was deducted ‘off the top’ of the settlement funds....
“5. King agreed to allow Ivey to deposit the $627,684 into Ivey’s attorney trust account based on the representation made by Ivey that the funds would be properly distributed in accordance with the terms agreed to at the November 2007 mediation. Ivey agreed to deposit the money into his attorney trust account....
“6. On November 21, 2007, Mr. Ivey received a check in the amount of $627,684 made payable to ‘Ivey & Rags-dale, attorneys for ... Ivey and ... King.’ ...
“7. Again, the parties to the check are ... Ivey and ... King. Consequently, the only necessary parties to this [a]ction and this motion are ... Ivey and ... King.
“8. Both King and Ivey endorsed the two party check so that it could be deposited into Ivey’s trust account as agreed....
“9. Since then, King and/or his agents have made numerous requests for his portion of the settlement monies. ...
“10. Ivey has repeatedly refused to distribute any money to King, and now claims that King is only entitled to $269,370.”

(Footnotes omitted.) As set forth above, King and Ivey agreed to divide the settlement amount of $627,684 between them based on their ownership interests in the various dissolved entities. Therefore, King and Ivey’s disagreement over the amount of the settlement to which each one is entitled is based on a disagreement over King’s and Ivey’s respective ownership interests in the various dissolved entities that are the subject of the settlement. Ivey’s claim that King is entitled to $269,370 is based on Ivey’s computation of King’s ownership interest in each of the dissolved entities; Ivey has never disputed that King is entitled to at least $269,370.

On October 6, 2008, Dollar <& Eads filed a motion for “a pro tanto order of dismissal in accordance with settlement agreement,” in which they requested to be dismissed from King’s action against them based on the settlement. On October 21, 2008, King filed a response in opposition to Dollar & Eads’s motion requesting that Dollar & Eads not be dismissed based on Ivey’s refusal to pay King his portion of the settlement.

On October 30, 2008, King filed an amended complaint adding Ivey, “in his capacity as Attorney Trustee of certain trust funds,” as a defendant and seeking to compel Ivey to pay King his portion of the settlement. In his amended complaint, King requested that the circuit court grant him relief, as follows:

“Wherefore, premises considered, Mr. King respectfully prays that this [cjourt issue an order requiring Mr. Ivey ... to:
“Either:
“(a) Immediately pay Mr. King $313,842 (50% of the $627,684).[]
“Or:
“(b) Immediately pay to Mr. King the undisputed amount of $269,370 and immediately pay into the [cjourt the disputed amount of $358,472.[] If Mr. Ivey selects ‘option (b)’, then Mr. Ivey is contending/admitting that there is a disputed portion. In such a case, Mr. King respectfully moves the [cjourt to immediately (1) appoint a special Master with CPA credentials to (i) perform an accounting of Ivey’s trust account (ii) perform an accounting of the $627,684 and (iii) prepare a distribution plan for the $358,472; all for the Court’s review pursuant to Ala. Rule Civ. Proc. 53 and (2) appoint an attorney to serve as special fiduciary under the Ala.Code [1975,] § 19-3B-1001(b)(5).”

Ivey filed a motion to dismiss King’s amended complaint based on King’s alleged failure to add certain indispensable parties; Ivey did not specify which parties were indispensable, nor did he explain why he believed that any other parties needed to be added. King filed a response. Ivey’s motion to dismiss was later denied, and Ivey filed an answer to King’s amended complaint.

On February 24, 2009, King filed a motion he entitled a “[§ j 6-6-740[, Ala.Code 1975,] Motion” in which he requested that the circuit court “enter a [sjummary [ojr-der” under § 6-6-740, Ala.Code 1975, on his claim against Ivey. Section 6-6-740 states:

“(a) Judgment may, in like manner, be summarily entered against any attorney-at-law in this state who fails to pay over money collected by him or deliver personal property recovered by him in that capacity, whether by an action or otherwise, on demand made by the person entitled thereto, his agent or attorney for the amount collected or the value of the property recovered, less the amount due the attorney for fees or compensation for services, interest thereon, and damages at the rate of five percent a month, after such demand, or the aggregate amount, in the circuit court of the county in which such attorney resides or, if he has no known place of residence in this state, in the circuit court of any county, on three days’ personal notice; but such attorney may, if a doubt exists as to the right of the person making the demand or if there is a dispute as to the compensation due the attorney for the collection or recovery of the money or property, pay the money into court or turn the property over to the sheriff at the trial of such motion and have such questions there decided without being liable for interest or damages.
“(b) The court may require the party claiming the money or property to establish his right thereto and, in determining the question of compensation, may examine both parties. The court may award costs, including the sheriffs reasonable expenses for preserving the property, at its discretion.”

King requested that the circuit court enter “an immediate [o]rder pursuant to [§] 6-6-740 requiring Ivey to pay to King the amount which he demands or, alternatively, pay at least that amount to the [circuit] [c]ourt.”

On May 12, 2010, the circuit court entered an order granting King’s § 6-6-740 motion, among other pending motions, as follows: “Ivey is hereby [o]rdered to pay $313,842[] to the Clerk of the Court of Walker County on or before 5:00 p.m. on the third day following personal notice of this Order on Ivey.” On May 17, 2010, based on a “motion to alter, amend or vacate” the circuit court’s order filed by Ivey, the circuit court entered an order staying its May 12, 2010, order until a hearing could be held on the matter.

On June 25, 2010, the circuit court entered another order, pursuant to § 6-6-740, requiring Ivey to pay $313,842 to the clerk of the circuit court by June 28, 2010. On June 28, 2010, Ivey filed a “motion to alter, amend or vacate” the circuit court’s order; the circuit court set Ivey’s motion for a hearing to be held on July 12, 2010. On July 12, 2010, the circuit court held the hearing on Ivey’s “motion to alter, amend or vacate” the circuit court’s June 25, 2010, order requiring Ivey to pay to the clerk of the circuit court $313,842 pursuant to § 6-6-740. The circuit court granted in part Ivey’s “motion to alter, amend or vacate” its June 25, 2010, order by orally amending its order, at the parties’ request, to require Ivey to pay the clerk of the circuit court $302,606.50 instead of $313,842. The circuit court ordered Ivey to pay to the clerk of the circuit court the ordered amount within seven days of the hearing; Ivey did not comply with the circuit court’s order.

On July 14, 2010, the circuit court entered an order granting Dollar & Eads’s motion to be dismissed based on the settlement of King’s claims against them. On August 31, 2011, the circuit court entered an order dismissing all of King’s claims against Northcutt and A1 Northcutt; Northcutt and A1 Northcutt were subsequently dismissed from King’s action. Therefore, as of August 31, 2011, Ivey was the only defendant remaining in King’s action.

Also on August 31, 2011, in the same order, the circuit court ordered Ivey to respond to certain pending discovery requests. Specifically, the circuit court ordered that

“(3) ... Ivey shall produce all records previously requested by [King] which is that ... Ivey shall produce all banking records of both his account and his [t]rust account or any banking accounts for which any of the monies were placed that are the subject of this lawsuit from the year 2007 to the present time, or the said ... Ivey shall explain in a sworn response the whereabouts of those funds.”

On November 21, 2011, Ivey filed two motions objecting to notices of intent to serve subpoenas on nonparties by King. In his first motion, Ivey explained that King’s subpoena sought “to have Gasey Cooper Baron, a non-party, produce various items, including, but not limited to, all of her financial records from ‘January 1, 2008, to present,’ and all communications and photographs between Ms. Barton and Mr. Ivey.” Ivey requested that King’s action against him be stayed, arguing that “this case, in its entirety, is due to be stayed by this Honorable Court due to a reported pending criminal investigation of [Ivey] arising from the facts alleged in this matter, and that a stay of the case should also work a stay of the proposed subpoena.” In his second motion, Ivey also requested a motion to stay King’s action against him, arguing that “this case is the subject of an ongoing criminal investigation.” Ivey attached his own affidavit to his second motion; that affidavit states, in pertinent part:

“Within the last month, I have been made aware of Jesse Serelles, an investigator for the Attorney General’s office, who interviewed my former partner, Barry Ragsdale. Mr. Serelles told Barry that he was investigating allegations that I had stolen money from ... King. He told Barry that ... King was ‘hot’ about the matter, and that he was ‘pushing the issue.’ ”

Also on November 21, 2011, Ivey filed a motion for a protective order and a motion for a stay of King’s action against him based on his right against self-incrimination set forth in the Fifth Amendment to the United States Constitution.

On December 27, 2011, King filed a motion for a default judgment against Ivey based on 1) Ivey’s failure to comply with the circuit court’s June 25, 2010, order, as amended on July 12, 2010, and 2) Ivey’s failure to comply with the portion of the circuit court’s August 31, 2011, order requiring Ivey to comply with King’s pending discovery requests. King also attached to his default-judgment motion a letter dated December 20, 2011, and addressed to King from Assistant Attorney General John Gibbs, which states:

“As we discussed in our telephone conversation, I am writing to inform you that ... Ivey will not be prosecuted based on your complaint. Your criminal complaint to this office was investigated but that investigation has been completed and that case has been closed.”

Also on December 27, 2011, King filed a motion to strike Ivey’s affidavit, the pertinent part of which is set forth above. King argued that Ivey had no personal knowledge of any pending or potential criminal investigation and that Ivey’s affidavit was “hearsay within hearsay.” Also on December 27, 2011, King filed a motion for a summary judgment based on several theories of recovery, some of which he had not previously asserted against Ivey. King argued that he was entitled to a summary judgment against Ivey under theories of breach of contract, breach of fiduciary duty, fraud, and negligence per se based on Ivey’s alleged violation of Rule 1.15 of the Alabama Rules of Professional Conduct.

On January 13, 2012, the circuit court entered an order addressing numerous of the pending motions. Specifically, the circuit court denied Ivey’s motion to stay the proceedings based on his Fifth Amendment right against self-incrimination and denied Ivey’s motion for a protective order. The circuit court granted King’s motion to strike Ivey’s affidavit in which Ivey testified that the Attorney General’s Office was investigating Ivey and might potentially bring criminal charges against him. Lastly, the circuit court ordered that “Ivey shall furnish all discovery required under Paragraph (3) of this Court’s Order dated August 31, 2011, [] within fourteen (14) days prior to his deposition or his failure to do so will lead to his default.”

On February 10, 2012, Ivey filed a motion asking the circuit court to reconsider its January 13, 2012, order. Ivey requested that the circuit court “reconsider its prior ruling denying [Ivey’s] [mjotion to [s]tay based upon Fifth Amendment grounds.... ” Ivey persisted in his argument that a criminal investigation related to King’s action against him was ongoing and, in support of his argument, attached to his motion to reconsider his own affidavit testimony, which states, in pertinent part:

“3. After receiving a copy of a letter filed by Mr. King, written by John Gibbs of the Alabama Attorney General’s Office, I began my own inquiry and investigation as to whether there was a continuing and pending investigation of a criminal nature arising out of the facts and circumstances of my dispute with Mr. King.
“4. Contrary to Mr. King’s argument from his interpretation of Mr. Gibbs’ letter, there is in fact a continuing investigation. Investigators are currently seeking to interview former employees, and are basing their continuing investigation relying upon testimony from Peggy Northcutt.”

On March 12, 2012, Lisa Ivey, Ivey’s attorney, filed her own affidavit pursuant to Rule 56(f), Ala. R. Civ. P., which states, in pertinent part:

“3. Pursuant to Alabama Rules of Civil Procedure Rule 56(f), my client in the above-referenced case, ... Ivey ..., is opposed to the granting of summary judgment in this case, but cannot present by affidavit facts essential to justify his opposition, for the reason that such opposition would cause him to abrogate his Constitutional rights under the State and Federal Constitutions under which he is protected from self-incrimination. Attached is a true and correct copy of an article in the Daily Mountain Eagle, a newspaper of general circulation in Walker County, Alabama. I also request that this Honorable Court take judicial notice of case number CC 2012-114, currently pending in the Circuit Court of Walker County, Alabama.”

The referenced newspaper article, which was published on February 24, 2012, states, in pertinent part:

“Attorney General Luther Strange announced Thursday the arrest of disbarred Jasper lawyer Garve Woodrow Ivey Jr. for multiple felony counts of theft. Ivey, 60, surrendered Thursday afternoon at the Walker County Sheriffs Office. Bail was set at $210,000.... Strange’s office presented evidence to a Walker County grand jury Thursday morning, resulting in Ivey’s indictment. Specifically, the indictment charges Ivey with: One count of second-degree theft of a check or currency valued between $500 and $2,500; and Ten counts of first-degree theft of a check or currency valued at more than $2,500. The attorney general’s office said no further information about the investigation or about Ivey’s alleged crimes, other than that stated in the indictment, may be released at this time.”

On April 11, 2012, the circuit court entered the following order in favor of King:

“The present dispute remaining in this [ajction is between two [pjarties that happen to be lawyers — King and Ivey. The two [pjarties received a joint compensatory recovery as parties, and not as lawyers, in 2007 and were thereafter unable to divide those funds without this litigation. The [pjarties agree that Ivey took possession of all of the disputed funds. King moves for summary judgment under [§] 6-6-740, summary judgment as to all claims and for default judgment for what King contends is King’s portion of the disputed funds. The Court grants all three motions as follows:
“I. Plaintiffs (King’s) Motion for Summary Judgment Pursuant to [§] 6-6-740, dated December 27, 2011.
“1. In essence, King contends and sufficiently establishes under Rule 56(a)[, Ala. R. Civ. P.,J that King’s portion of the disputed funds is $302,660.50 [sic], (b) that Ivey has wrongfully detained those funds since November of 2007, (c) that King made a formal demand that the same be paid either to him, the [cjourt or the sheriff pursuant to ... [§] 6-6-740 on or about January 10, 2008, and (d) that King is entitled to those funds together with five percent (5%) interest per month as set forth in ... [§] 6-6-740. In any event, King’s motion is fully supported on each issue.
“2. Rule 56(e)[, Ala. R. Civ. P.,J requires the responding [pjarty to contradict the movant’s factual allegations:
“ ‘An adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him.’
“Additionally, Rule 56(f) permits a[p]arty to secure a continuance of the Rule 56 hearing by submitting an affidavit stating why evidentiary materials are unavailable. Rule 56(f). However, that affidavit must (a) identify and establish a proper basis of unavailability of evidence and (b) must identify with specificity the factual allegations which the responding [pjarty will controvert when evidence becomes available. See e.g., Rule 56.
“3. Defendant Ivey did not respond to King’s [§ 6-6-J740 motion for summary judgment with any Rule 56(e) competent evidence whatsoever, Rather, the only response from Ivey was an affidavit by his counsel purporting to assert Ivey’s alleged Fifth Amendment rights. This is insufficient because (a) the indictment Ivey relies on does not relate to these proceedings, (b) Ivey’s motion to stay was denied and not appealed and (c) the Fifth Amendment, even if it had applied, does not per se preclude summary judgment.
“The Indictment. First, the [cjourt has taken judicial notice of the current pending indictment against Mr. Ivey in CC-2012-114.... That indictment does not involve any of the allegations by King against Ivey. Restated, Ivey ‘can point to no criminal investigation relating to him ... ’ Braden v. Jim Bishop Chevrolet, 897 So.2d 1040, 1047 (Ala. 2004).... Consequently, the affidavit of Ivey’s counsel is insufficient to trigger Fifth Amendment protection sufficient to fulfill the Rule 56(f) requirements. See, e.g., id. Second, the affidavit of counsel does not in any way identify which factual allegations [Ivey] would or might controvert in the future. Rule 56. Finally, Defendant Ivey does not provide this [cjourt with any opposition to the legal theories advanced by [King] in [his] motion for summary judgment. Rule 56.
“Ivey’s Motion To Stay Was Denied. Where the Rule 56 respondent’s motion to stay is denied, the request for stay cannot be used to satisfy Rule 56(f). This [cjourt denied Ivey’s motion to stay by verbal [ojrder on January 12, 2012, and written [ojrder dated January 13, 2012. The time for interlocutory appeal lapsed on January 27, 2012. Since that time, Ivey has produced no new evidence ... related to a criminal investigation arising from Ivey’s dealings with King.
“The Fifth Amendment Does Not Preclude Summary Judgment. The silence of a respondent does create a civil inference of guilt. See Baxter v. Palmigi-ano, 425 U.S. 308, 318 (1976). The Fifth Amendment to the Constitution precludes summary judgment where this inference is the only evidence supporting the motion. Id. However, if the other evidence supporting the movant’s motion is sufficient under Rule 56, then the respondent’s assertion of the Fifth Amendment privilege shall not preclude summary judgment. Id. As noted, the facts established by King were and are sufficient and uncontroverted under Rule 56.
“4. Now therefore, partial summary judgment is hereby entered against Defendant Ivey and for Plaintiff King on King’s [§] 6-6-740 count in the amount of $302,660.50 [sic] as of January of 2008 with five percent (5%) per month of interest through the date of this judgment representing an aggregate of $1,044,181.18 as of the date of this judg-
“II. Plaintiffs Motion for (Partial) Summary Judgment.
“6. The contention and facts set forth by King in his motion for (partial) summary judgment dated December 27, 2011, as to the balance of his theories of recovery are essentially identical to those set forth in support of his motion for summary judgment under [§] 6-6-740. However, King’s motion for summary judgment as to every other theory is more specific in that it (a) sets out each of the allegations and proof for breach of contract ..., (b) lists all of the required allegations and proof with respect to breach of fiduciary duty consistent with Alabama Code [1975,] [§§] 19-3B-401 & 402 and the decisions in Teal v. Pleasant Grove Local Union #201, 200 Ala. 23, 25[, 75 So. 335] (1917); Harrison, Adm’r, and Gardner, Adm’r v. Mock, et al, 10 Ala. 185, 193 (1846), (c) establishes the facts and allegations with respect to fraud ... and (d) enumerates the elements and allegations for negligence per se and violation of the Alabama Rules of Professional Conduct 1.15 consistent with the decision in Dickinson v. Land Developers Construction Company, 882 So.2d 291, 302 (Ala.2003), and Alabama Rules of Professional Responsibility Rule 1.15. King’s motion is fully supported on each issue.
“7. As noted above, in the discussion of King’s [§] 6-6-740 motion, Rule 56 requires a meaningful response under Rule 56(e) or 56(f). Because Ivey filed nothing more than the ineffective affidavit of counsel discussed above, Defendant Ivey has again failed to (a) controvert any of the facts as presented and established by the movant (King) or (b) question in any way any of the cited law.
“8. Now therefore, partial summary judgment is hereby entered in favor of King and against Defendant Ivey in the amount of $302,660.50 [sic] representing only economic compensatory damages and based on all of the theories set forth above. To the extent that the recovery is based in contract, prejudgment interest shall accrue on this amount from January 10, 2008, to the date of this judgment at the rate of six percent consistent with Alabama Code [1975,] [§] 8-8-1. The [c]ourt reserves jurisdiction to determine all other compensatory and punitive damages at future proceedings.

“III. Motion for Default Judgment.

“10. On August 31, 2011, this [c]ourt [ojrdered ... Ivey to produce certain records to King consisting primarily of banking and accounting records related to his trust account. Order dated August 31, 2011 at ¶ (3). Ivey refused to do this. King filed a motion for default judgment on December 27, 2011, based on Ivey’s violation of this [c]ourt’s [orders and failure to participate in discovery. This [c]ourt set King’s motion for hearing on January 12, 2012. The hearing was held as scheduled and all [parties attended by and through counsel and all counsel had the opportunity to present evidence, legal authority and argument. Ivey’s sole defense was his request for a ‘stay’ based on alleged pending criminal proceedings associated with Ivey’s dealings with King. As previously noted, there is ample evidence that there was and is no such peril.
“11. By [o]rder dated January 13, 2012, this [c]ourt denied Ivey’s motion to stay and further ordered that Ivey would furnish all discovery required under ¶ (3) of this [c]ourt’s [o]rder dated August 31, 2011, to King within fourteen days prior to his (Ivey’s) scheduled deposition, i.e., at the latest, February 13, 2012 — and that ‘his failure to do so will lead to his default.’ The [c]ourt did not rule on King’s motion for default at that time, but reserved it for future disposition.
“12. On January 27, 2012, the time for interlocutory appeal of this Court’s January 13, [2012,] [ojrder expired. Ivey took no appeal. As of February 13, 2012, Ivey had not complied with this [c]ourt’s express [o]rder. As of the entry of this [o]rder, Ivey has still not complied with this [c]ourt’s August 31, 2011, [o]rder or its January 13, 2012, [ojrder — i.e., Ivey has not appeared for deposition or produced the documents. Since that time, Ivey has produced no new evidence ... related to a criminal investigation arising from Ivey’s dealings with King.
“13. It is well settled that a default judgment is proper against a party which fails to participate in discovery. Ex parte Blake, 624 So.2d 528, 531 (Ala. 1993) (entry of default judgment affirmed against the party which repeatedly refused to appear for deposition or produce documents); Ragan v. Blazon Flexible Flyer, Inc., 590 So.2d 882, 883 (Ala.1991) (affirming dismissal of the plaintiff’s claims because of his failure to identify an expert witness within the time set by the [cjourt); Napier v. McDougal, 601 So.2d 446, 448 (Ala.1992) (affirming dismissal where the plaintiff failed to answer interrogatories within the time period set by the [cjourt, notwithstanding the plaintiffs service of unsigned interrogatory responses prior to the deadline); Hill v. Hawkins, 582 So.2d 1105, 1106 (Ala. 1991) (‘failure of a plaintiff to attempt to serve the defendant with process within a reasonable time may amount to a failure to prosecute the action, warranting a dismissal of the case.’).
“14. Now therefore, a default judgment is hereby entered against Ivey for failure to participate in discovery and for further violation of the [cjourt’s [o]r-ders. It appearing of record that the liquidable amount of the compensatory damages claimed by King is $302,660.50 [sic], this [c]ourt, therefore, enters a default judgment in favor of King and against Ivey for economic compensatory damages in that amount with prejudgment interest accruing at six percent from January 10, 2008, through the date of this judgment. The [c]ourt reserves jurisdiction to determine all other compensatory and punitive damages at future proceedings to include an award of attorney’s fees under any applicable theory [and] to include sanctions under Rule 37 and otherwise.
“18. The judgments set forth in Sections I, II and III are not cumulative but based on alternative grounds.”

(Capitalization, emphasis, and footnotes omitted.)

On May 10, 2012, Ivey filed a motion to alter, amend, or vacate the circuit court’s April 11, 2012, judgment pursuant to Rule 59(e), Ala. R. Civ. P. Ivey’s postjudgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on August 8, 2012. Ivey appealed.

Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’
“Capital Alliance Ins. Co. v. Thoroughr-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994): Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

First, Ivey argues that “[t]his Court lacks jurisdiction over this appeal because the [circuit] court erred when it certified its orders of April 11, 2012, as final and appealable when the orders lacked the requisite elements of finality and did not fully dispose of the claims between the parties.” Ivey’s brief, at p. 14. The finality of the circuit court’s April 11, 2012, judgment is discussed in note 8 supra. The circuit court’s April 11, 2012, judgment was a final judgment because it disposed of King’s one claim against Ivey, the only defendant remaining in King’s action. The circuit court ruled in King’s favor on three alternate grounds, each of which, as the circuit court noted in its April 11, 2012, judgment, was mutually exclusive. The circuit court’s judgment was a final judgment; thus, Ivey’s argument that this Court lacks jurisdiction over this appeal based on an inappropriate Rule 54(b), Ala. R. Civ. P., certification is irrelevant and without merit.

Next, Ivey argues that “[t]he [circuit] court exceeded its discretion when it refused to stay this case and [entered its April 11, 2012, judgment] against Ivey when Ivey had a reasonable apprehension of self-incrimination had he participated in the discovery process or set forth substantive opposition to the motions for summary judgment.” Ivey’s brief, at p. 22. Ivey argues that “the basis of King’s claim [against Ivey was] factually identical to the basis for the indictment against Ivey.” Id., at p. 29. Ivey further argues that “if [he] had been forced to respond in this case to discovery relating to the ‘tracing’ of monies through his trust account, information could have been gathered against him to be used in the pending criminal cases.” Id. Ivey’s argument that the circuit court erred in denying his motion to stay is apparently based on the circuit court’s August 31, 2011, order in which the circuit court ordered Ivey to respond to King’s pending discovery requests, which sought information concerning the state of Ivey’s trust account and the current whereabouts of the settlement moneys. Those discovery requests are unrelated to King’s § 6-6-740 claim against Ivey.

As set forth above, § 6-6-740 provides that “[judgment may ... be summarily entered against any attorney-at-law in this state who fails to pay over money collected by him ... in that capacity, whether by an action or otherwise, on demand made by the person entitled thereto.... ” Ivey has never disputed that King is entitled to a portion of the settlement; specifically, Ivey alleges that King is entitled to $269,370, while King alleges that he is entitled to $302,606.50. The only genuine issue of material fact related to King’s § 6-6-740 claim is what portion of the settlement King is entitled to. As set forth above, the answer to that question is found in King’s and Ivey’s respective ownership interests in the dissolving entities at the time the settlement was entered into. Ivey has never disputed or argued that King’s § 6-6-740 claim involves any further discovery than this. Discovery related to that question will not be focused on the state of Ivey’s trust account or the current whereabouts of the settlement— which is what Ivey alleges could lead to incriminating evidence — but upon the respective ownership interests of King and Ivey in the dissolving entities at the time the settlement was entered into. Therefore, Ivey’s argument that the circuit court erred in denying his motion to stay is irrelevant to King’s § 6-6-740 claim; Ivey could have easily produced an affidavit or documentary evidence without fear of self-incrimination establishing his ownership interest in the dissolving entities at the time King and Ivey entered into the settlement, which would have been substantial evidence rebutting King’s substantial evidence in support of his summary-judgment motion on his § 6-6-740 claim.

Ivey does not raise any other argument and does not dispute that King provided substantial evidence to support his § 6-6-740 claim. We need not consider the alternative grounds of the circuit court’s April 11, 2012, judgment against Ivey because the circuit court explicitly stated in its judgment that “Section I, II and III are not cumulative but based on alternative grounds.”

Conclusion

Based on the foregoing, we affirm the circuit court’s judgment.

AFFIRMED.

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

      . Dollar & Eads, P.C., founded by Rhonda Dollar and Phillip Eads, is a professional corporation that provides accounting services to businesses and individuals. Dollar & Eads, P.C., provided King and Ivey, and their law firms, accounting services and financial management over the course of 30 years. North-cutt was employed by Dollar & Eads, P.C.; Northcutt managed King’s account. A1 Northcutt is Northcutt's husband.

      . This is apparently a reference to the insurer of Northcutt’s employer, i.e., Dollar & Eads, P.C.

      . $313,842, half of the settlement amount of $627,684, is the amount King initially claimed he was entitled to. Apparently, this was before King realized that Warren was entitled to 10% of the settlement amount related to the dissolution of King, Ivey & Warren. As set forth above, King later argued that he was entitled to $302,606.50.

      . King does not explain why he believes the amount of $358,472 is the disputed amount. It is possible he was merely asking that the remainder, after deducting $269,370, be paid into court, although the math is incorrect. King has never argued that Ivey was not entitled to half of the $627,684 settlement amount. Therefore, it appears that the disputed amount of the $627,684 settlement amount would actually be the difference between what King claims to be his portion of the settlement amount ($302,606.50) and what Ivey claims to be King's portion of the settlement amount ($269,370), which is $33,236.50.

      . See supra note 3.

      . The cited paragraph, set forth above, states:
      "(3) ... Ivey shall produce all records previously requested by [King] which is that ... Ivey shall produce all banking records of both his account and his [t]rust account or any banking accounts for which any of the monies were placed that are the subject of this lawsuit from the year 2007 to the present time, or the said ... Ivey shall explain in a sworn response the whereabouts of those funds.”

      . Rule 56(f) provides:
      "(f) When Evidentiary Matter Is Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

      . We note that the circuit court unnecessarily entered Rule 54(b), Ala. R. Civ. P., certifications as to each of its alternative grounds for ruling in King’s favor. As set forth above, King’s action and Ivey’s action were never consolidated. Dollar & Eads were dismissed from King's action on July 14, 2010, and Northcutt and A1 Northcutt were dismissed from King’s action on August 31, 2011. As of August 31, 2011, Ivey was the only defendant remaining in King’s action and King’s only claim against Ivey sought recovery of his portion of the settlement from Ivey. Although King may have relied upon several theories of recovery, King asserted only one claim against Ivey. See Scrushy v. Tucker, 955 So.2d 988, 998 (Ala.2006) (" ‘[W]hen a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b).’ ” (quoting 10 Charles Alan Wright et al., Federal Practice & Procedure § 2657 (3d ed. 1998) (footnotes omitted))). Therefore, the Rule 54(b) certifications included by the circuit court in its April 11, 2012, judgment were unnecessary because the judgment was a final judgment; it disposed of King’s only claim against Ivey, the only remaining defendant in King’s action.


author: PER CURIAM. MOORE, Chief Justice MURDOCK, Justice BRYAN, Justice

text:
    HOSEA O. WEAVER AND SONS, INC. v. Ira W. BALCH, as personal representative of the estate of Danny E. Balch, deceased, et al.
    1100637.
    Supreme Court of Alabama.
    Sept. 20, 2013.

      Forrest S. Latta, John P. Browning, and Edward G. Bowron of Burr & Forman LLP, Mobile, for appellant.
    Albert L. Jordan and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; Wyman O. Gilmore, Jr., and R. Edwin Lamberth of Gilmore Law Firm, Grove Hill; and Thomas P. Willingham, Birmingham, for appellees.
    Joseph R. Duncan, Jr., and Jeremy S. Gaddy of Huie, Fernambucq & Stewart, LLP, Birmingham, for amicus curiae Alabama Road Builders Association, in support of the appellant.
    David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds, LLC, Mobile; and Leila H. Watson of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for amicus curiae Alabama Association for Justice, in support of the ap-pellees’ application for rehearing.
   PER CURIAM.

The opinion of June 28, 2013, is withdrawn, and the following is substituted therefor.

Hosea O. Weaver and Sons, Inc. (“Weaver”), appeals the judgment entered on a jury verdict in favor of Ira W. Balch, as personal representative of the estate of Danny E. Balch, deceased, and Melvin R. Balch, as personal representative of the estates of Bernard R. Balch, deceased, and Armie Butler Balch, deceased (hereinafter referred to collectively as “the Balch personal representatives”). We reverse the judgment and render a judgment for Weaver.

Facts and Procedural History

In March 2001, the Alabama Department of Transportation (“ALDOT”) awarded Weaver, a road-construction company, the resurfacing contract for approximately eight miles of Highway 84 in Clarke County. The plans and specifications designated by ALDOT for the resurfacing project provided that the completed road surface would have a total width of 24 feet and a cross slope of 2.5 degrees. During the resurfacing project, employees of ALDOT and Weaver inspected and measured the resurfaced highway to ensure compliance with the contract specifications. Weaver completed the resurfacing project in March 2002. In a letter dated March 25, 2002, Terry McDuffie, a construction engineer for ALDOT, notified Weaver that ALDOT was assuming maintenance of the resurfaced highway, stating:

“All work included in [the Highway 84 project] has been completed, and you are hereby notified that [ALDOT] will assume maintenance of the same as of March 19, 2002. This assumption of maintenance is conditioned specifically on materials and workmanship being found satisfactory as determined from our ‘Record Check’ still in progress and meeting [ALDOT] Specifications.
“Should this Department find upon completion of the ‘Record Check’ that any of the materials or workmanship fail to meet the requirements of the plans and specifications, [Weaver] will be required to make such changes as necessary to correct the deficiencies without expense to the Department.”

On June 7, 2002, ALDOT issued a letter of acceptance to Weaver, stating:

“All work included in [the Highway 84 project] has been satisfactorily completed, and you are hereby notified that the work was accepted by [ALDOT] as of March 19, 2002.”

On October 18, 2007, Danny E. Balch, Bernard R. Balch, and Armie Butler Balch were traveling east in a vehicle on the portion of Highway 84 that Weaver had resurfaced when their vehicle, driven by Danny, crossed the centerline and collided with an oncoming tractor-trailer truck, driven by James Daniel Bradley. Danny, Bernard, and Armie died as a result of the accident.

On March 13, 2009, the Balch personal representatives filed a wrongful-death action, pursuant to § 6-5-410, Ala.Code 1975, against Weaver and others alleging, as to Weaver, that Weaver had negligently performed the Highway 84 resurfacing project in 2001-2002 and that its negligent performance caused the accident and, as a result, the deaths of Danny, Bernard, and Armie. Specifically, the Balch personal representatives alleged:

“[Weaver] breached [its] duty of care by, among other things:
“(a) negligently ... paving the subject portion of Highway 84 such that [it] created a deep and dangerous edge drop-off;
“(b) negligently ... paving the subject portion of Highway 84 such that it was less than the required width;
“(c) negligently ... traffic striping the subject portion of Highway 84;
“(d) negligently ... failing to take corrective measures on the subject section of the roadway;
“(e) negligently ... failing to perform the road work in accordance with the requirements of the contract and/or the applicable standard of care.
“The deaths of [Danny, Bernard, and Armie] were caused as a proximate consequence of the wrongful, negligent ... conduct of [Weaver].”

At trial, Lakesha Steele, a senior engineering assistant with ALDOT, testified that she and three other ALDOT employees made daily inspections of the Highway 84 resurfacing project when Weaver was engaged in the project to ensure compliance with the contract specifications. She recalled taking measurements to determine that the asphalt had been laid to the proper width and at the correct cross slope. Both Steele and her supervisor at ALDOT, Johnnie Cook, testified that if, during one of those daily inspections, ALDOT inspectors and/or supervisors found that Weaver was not complying with the contract specifications, the resurfacing process was stopped until the specifications could be met. A field note, dated October 31, 2001, was admitted in evidence; it indicated that ALDOT had halted the resurfacing process to address a cross-slope issue. Steele testified that AL-DOT’s inspection records contained no evidence indicating that Weaver had not complied with the resurfacing specifications in the contract by the time the project was completed.

Terry McDuffie stated that, upon completion of the contract, ALDOT sent Weaver a letter officially accepting Weaver’s work. According to McDuffie, the letter served as notice to Weaver that the State would assume maintenance of the roadway as of March 19, 2002.

With regard to the accident, the evidence indicated that the vehicle in which the Balches were riding was traveling on a portion of the eastbound lane of Highway 84 that had been resurfaced by Weaver when it left the right side of the road and encountered a shoulder drop-off, causing the driver of the Balch vehicle to lose control of the vehicle, which then crossed the centerline into the westbound lane of Highway 84, colliding with a tractor-trailer truck traveling in that lane. According to expert testimony presented by the Balch personal representatives, the accident occurred because Weaver did not comply with the road-resurfacing specifications provided by ALDOT with regard to the cross slope and width of the road when it resurfaced the road in 2001-2002. The testimony, however, further indicated that even if Weaver had been negligent in its performance of the resurfacing contract, if ALDOT had maintained the road routinely and the shoulder drop-off had been filled, the accident probably would not have occurred.

Weaver moved for a judgment as a matter of law at the close of the Balch personal representatives’ evidence and again at the close of its evidence. In its motions for a judgment as a matter of law, Weaver argued, in pertinent part, that it did not owe a duty of care to Danny, Bernard, and Armie because ALDOT had accepted its resurfacing work as satisfactory upon its completion of the contract and had assumed responsibility for maintenance of the road from that time. The trial court denied Weaver’s prejudgment motions for a judgment as a matter of law. The jury returned a verdict for the Balch personal representatives, and Weaver filed a post-judgment motion for a judgment as a matter of law, which the trial court denied. Weaver appeals.

Standard of Review

This Court’s standard of review on a ruling on a motion for a judgment as a matter of law is well settled.

“ ‘When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmov-ant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.l989).[] A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
“Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).”

Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413, 418 (Ala.2006).

Analysis

Weaver contends that the trial court erred in denying its motions for a judgment as a matter of law because, it says, it did not owe a legal duty of care to Danny, Bernard, and Armie once it had completed the resurfacing project and AL-DOT had accepted its work and assumed responsibility for maintenance of the road.

“In a negligence action the plaintiff must prove (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; (3) that the plaintiff suffered a loss or injury; and (4) that the defendant’s breach was the actual and proximate cause of the plaintiffs loss or injury. Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala. 1995). ‘ “It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty,” ’ Thompson v. Mindis Metals, Inc., 692 So.2d 805, 807 (Ala.1997) (quoting Morton v. Prescott, 564 So.2d 913, 915 (Ala.1990)), because ‘where there is no duty, there can be no negligence.’ City of Bessemer v. Brantley, 258 Ala. 675, 681, 65 So.2d 160, 165 (1953). ‘ “In Alabama, the existence of a duty is a strictly legal question to be determined by the court.” ’ Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 937 (Ala. 2006) (quoting Taylor v. Smith, 892 So.2d 887, 891-92 (AIa.2004)).”

DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.2d 454, 460 (AJa.2008). The trial court’s denials of Weaver’s motions for a judgment as a matter of law indicate that the trial court concluded that Weaver did owe a duty of care to Danny, Bernard, and Armie.

“[T]he existence of a duty is strictly a legal question and, under our standard of review, this Court does not afford the trial court’s conclusions of law any presumption of correctness.” Id. Therefore, this Court must first address the strictly legal question presented in this case: whether a road-construction company, which has been granted authority to perform work on a road under a contract with ALDOT and has completed its work on a road to the satisfaction of ALDOT owes a duty of care to the users of the road after ALDOT has assumed responsibility for the maintenance of the road.

ALDOT has responsibility for the superintendence of public roads in the State of Alabama. Section 23-1-40, Ala. Code 1975, explains ALDOT’s responsibility in this regard, stating:

“(a) It shall be the duty of the State Department of Transportation to designate the roads to be constructed, repaired, and maintained and to construct, standardize, repair, and maintain roads and bridges of this state....”

Alabama law is clear: ALDOT controls the public roads of this State, and a road-construction company can perform work on a public road only with ALDOT’s permission. Therefore, a road-construction company’s duty of care arises pursuant to its contract with ALDOT, and the road-construction company can perform work on a road only in accordance with the specifications and instructions provided by ALDOT in that contract. Thus, after a road-construction company has completed the authorized work and ALDOT has accepted the work and assumed responsibility for the superintendence of the road, the road-construction company no longer has authority to perform any work on the road.

In light of a road-construction company’s limited authority to perform work on a public road as permitted by ALDOT and ALDOT’s responsibility to superintend the public roads, we apply the following general rule, known as the “accepted-work doctrine,” which limits the post-acceptance duty of a road-construction company to third parties when, in situations like this one, the work is performed pursuant to a government contract:

“It has long been the general rule that an independent contractor is not liable for injuries occurring to a third person after the contractor has completed the work and turned it over to the owner, and it has been accepted by him, even though the injury results from the contractor’s negligent performance of the contract or his failure to perform it properly, at least if the defect in the work is not hidden, but is readily observable on reasonable inspection.”

Edward L. Raymond, Jr., Highway Contractor’s Liability to Highway User for Highway Surface Defects, 62 A.L.R.4th 1067,1070 (1988). See also Black v. Kiewit Sons’ Co., 94 Idaho 755, 497 P.2d 1056 (1972)(applying accepted-work doctrine in negligence action against road-construction company and holding that company was not liable to plaintiff); Williams v. Sullivan, Long & Hagerty, Inc., 209 So.2d 618 (Miss.l968)(holding that contractor was not responsible for maintenance of road after county had accepted contractor’s work); and City of Richmond v. Branch, 205 Va. 424, 137 S.E.2d 882 (1964)(holding that although contractor had been negligent in performance of contract, the contractor was not liable to an injured motorist for any failure to properly perform the contract because the work had been completed and accepted by the city before the accident). But see Suneson v. Holloway Constr. Co., 337 Ark. 571, 582, 992 S.W.2d 79, 85 (1999)(discussing the accepted-work doctrine and refusing to continue its application because it was “outmoded and often unnecessarily unfair in application”).

In this ease, because ALDOT had accepted Weaver’s resurfacing work and had assumed responsibility for the maintenance of the road, we conclude that Weaver owed no duty of care to Danny, Bernard, and Armie. “[B]eeause ‘where there is no duty, there can be no negligence,”’ DiBiasi, 988 So.2d at 460, and because we conclude that Weaver did not have a duty, Weaver is entitled to a judgment as a matter of law.

Conclusion

Based on the foregoing, we reverse the judgment of the trial court in favor of the Balch personal representatives and render a judgment as a matter of law in favor of Weaver.

APPLICATION OVERRULED; OPINION OF JUNE 28, 2013, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND JUDGMENT RENDERED.

STUART and BOLIN, JJ., concur.

MOORE, C.J., and PARKER, MURDOCK, WISE, and BRYAN, JJ., concur in overruling the application for rehearing and concur in the result as to the opinion.

MAIN, J., dissents.

MOORE, Chief Justice

(concurring in overruling the application for rehearing and concurring in the result as to the opinion).

I concur in overruling the application for rehearing and concur in the result reached by the main opinion. There is evidence in this case from which this Court could conclude that proximate causation did not exist between the allegedly negligent conduct of Hosea 0. Weaver and Sons, Inc. (“Weaver”), and the accident that resulted in the deaths of three people.

However, I disagree with the plurality’s application of the “accepted-work doctrine.” Under this rule, a State agent may relieve a contractor from liability simply by accepting the contractor’s work, so long as any defect with the contractor’s work is readily observable upon reasonable inspection and is not hidden. In such a case, an injured plaintiff would not be able to sue either the State (which is protected by State immunity under Art. I, § 14, Ala. Const.1901) or the negligent contractor (which would be protected by the accepted-work doctrine). Such a construction of the law would deprive an injured plaintiff of the rights to a trial by jury and to open access to courts under Art. I, §§ 11 and 13, Ala. Const.1901. Consequently, by depriving the citizens of Alabama of these inviolate rights, the State would be assuming the power to abridge the Declaration of Rights, in violation of Art. I, § 36, Ala. Const.1901, which says: “[T]o guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.”

Finally, although in this case the plurality could have reached the same result by holding that Weaver’s alleged negligence was not the proximate cause of the accident, the accepted-work doctrine would cut off liability for contractors in future cases where it is undisputed that the contractor’s negligence, which resulted in an open and obvious defect that was readily observable on reasonable inspection, was in fact the proximate cause of the resulting injury.

For these reasons, although I agree that Weaver is not liable in this case and that a judgment should be rendered for it, I object to applying this “new rule,” which, if adopted, in my view, would deprive the citizens of Alabama of rights that the Alabama Constitution declares shall “forever remain inviolate.” Art. I, § 36, Ala. Const. 1901.

MURDOCK, Justice

(concurring in overruling the application for rehearing and concurring in the result as to the opinion).

The alleged deficiencies in the work performed for the State by Hosea 0. Weaver and Sons, Inc. (“Weaver”), were of such a nature that they were readily observable by the State. The State accepted the work. The contract work, as performed by Weaver and accepted by the only other party to the contract, did not imminently present the danger the plaintiffs assert ultimately was responsible for the accident, i.e., the combined effect of an improper slope, an improperly narrow lane, and a shoulder rut. Following completion of the work, the State assumed responsibility for maintaining the shoulder of the road. A period of five and one-half years then passed, during which time a rut developed in that shoulder that, according to the plaintiff, played a necessary role in the accident. The evidence indicates that, if the State had properly maintained the roadway, the shoulder rut would not have developed. Under the circumstances of this case, responsibility for the accident lies with the State. I therefore concur in the result.

WISE, J., concurs.

BRYAN, Justice

(concurring in overruling the application for rehearing and concurring in the result as to the opinion).

I concur to overrule the application for rehearing, and I concur in the result reached by the main opinion. I write specially to note that, because the main opinion is a plurality opinion, it is not binding precedent. I further note that § 6-5-701, Ala.Code 1975, which was enacted in 2012, clarifies the law in this area. Section 6-5-701 provides:

“A contractor is justified ordinarily in relying upon the specifications that are contained in the contract with an awarding authority. No contractor shall be held civilly liable for work performed on a highway, road, bridge, or street including repairs, construction, or maintenance on behalf of the awarding authority unless it is shown by a preponderance of the evidence that physical injury, property damage, or death is proximately caused by any of the following:
“(1) A failure by the contractor to follow the plans and specifications resulting in a dangerous condition.
“(2) The contractor’s performance of the contract in compliance with the plans and specifications creates a condition that should have appeared, to a reasonably prudent contractor, to be a dangerous condition.
“(3) A latent defect which creates a dangerous condition that is the result of the work of the contractor.”

This statute, which was enacted during the pendency of this appeal, does not control this case. I simply note that it will control in future cases.

      . The cross slope is the tilt in the payement.

      . The letter actually carried the incorrect date of March 25, 2002.

      . At oral argument before this Court, the Balch personal representatives admitted that after ALDOT had assumed maintenance of the roadway, Weaver could not, without ALDOT's permission, perform any additional work on the roadway.

      . "Substantial evidence” is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).

      .Our conclusion that Weaver did not have a duty of care in this case does not overrule or disturb this Court’s decision in McFadden v. Ten-TCorp., 529 So.2d 192 (Ala. 1988), which holds that following acceptance of the work by the owner a road contractor may be liable for injuries to third persons that are the result of the contractor’s performance of defective plans and specifications that are " ' "so obviously defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” ’ " 529 So.2d at 200 (quoting other cases).

      . Our decision to reverse the trial court's judgment and to render a judgment on this basis pretermits discussion of the remaining issues raised by Weaver on appeal.

      . I believe that the modern view of proximate cause based on foreseeability does not comport with the common-law view of causation. The modern view appears to be rooted in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). However, under either view, I do not believe proximate causation existed in this case.


author: BRYAN, Justice.

text:
    Ex parte SCHNITZER STEEL INDUSTRIES, INC. (In re Jason Jackson and Latonya Jackson v. Schnitzer Steel Industries, Inc., et al.)
    1120251.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    Sara M. Turner and Stephen K. Pudner of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.
    Steven D. Tipler of Tipler Law Offices, Birmingham, for respondents.
   BRYAN, Justice.

Schnitzer Steel Industries, Inc. (“Schnitzer Steel”), has petitioned this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order compelling discovery of a post-accident investigation report (“the report”) related to an accident that occurred at the Birmingham facility of Schnitzer Southeast, LLC, a subsidiary of Schnitzer Steel. We grant the petition and issue the writ.

Facts and Procedural History

In September 2008, Jason Jackson had part of his leg amputated as a result of a workplace accident that occurred at Schnitzer Southeast’s metal-recycling facility in Birmingham. After the accident, Schnitzer Steel instigated a post-accident investigation. Josephine Cetta, who was a safety director at Schnitzer Steel at the time of Jackson’s accident, and Richard Taylor conducted the investigation. Cetta drafted a report regarding the investigation, which was then transmitted to Doug Dunaway, who was Schnitzer Steel’s corporate health and safety director, for review. Cetta testified in her deposition that both Dunaway and in-house counsel at Schnit-zer Steel reviewed and edited the report. She also testified that in-house counsel marked the report as privileged.

Sometime after the accident but before Cetta’s report was created, Jackson filed a worker’s compensation claim with Schnit-zer Southeast. In September 2010, Jackson and his wife, Latonya Jackson, filed a separate action against Schnitzer Steel and certain of its employees, seeking additional recovery for the injuries Jackson suffered.

In April 2012, the trial court ordered Schnitzer Steel to produce, among other things, “reports of safety inspections.” On May 11, 2012, counsel for Schnitzer Steel filed a notice in the trial court, stating that it had produced “all reports of inspections that were conducted at the Birmingham Yard between January 1, 2006, and April 20, 2012, other than the post-accident investigation report, which the Court previously ruled was privileged and non discoverable.” Jackson moved to compel production of the report, but Schnitzer Steel argued in response that the report was protected by the work-product doctrine because, it said, it had been prepared in reasonable anticipation of litigation. The trial court granted the motion to compel. Schnitzer Steel now petitions this Court for a writ of mandamus, “directing the Trial Court to vacate that portion of its order granting Jackson’s Motion to Compel and directing the Trial Court to enter a new order denying Jackson’s Motion to Compel.” Petition, at B.

Analysis

In its petition, Schnitzer Steel argues that “the Trial Court exceeded its discretion when it ordered Schnitzer Steel to produce the Report even though the Report was prepared in reasonable anticipation of litigation and is protected from discovery under the work product doctrine.” Petition, at 3. This Court has stated:

“ ‘Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.’
“Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003).
“Moreover, this Court will review by mandamus only those discovery matters involving (a) the disregard of a privilege, (b) the ordered production of ‘patently irrelevant or duplicative documents,’ (c) orders effectively eviscerating ‘a party’s entire action or defense,’ and (d) orders denying a party the opportunity to make a record sufficient for appellate review of the discovery issue. 872 So.2d at 813-14. The order challenged in this case involving alleged work product ... is reviewable under category (a).”

Ex parte Meadowbrook Ins. Grp., Inc., 987 So.2d 540, 547 (Ala.2007).

With regard to the work-product doctrine, this Court has stated:

“Documents and tangible things otherwise discoverable, which are prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, are protected as work product and are not ordinarily discoverable. See Rule 26(b)(3), Ala. R. Civ. P. Ex parte Meadowbrook identifies the elements of the work-product exception to the general discovery rule as follows: ‘ “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or representative of that party.” ’ ”

Ex parte Flowers, 991 So.2d 218, 221 (Ala. 2008) (quoting Ex parte Meadowbrook, 987 So.2d at 548, quoting in turn Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000)).

It is undisputed that the report meets the first and third elements of the work-product doctrine: the report is a “document!] or tangible thing!]” and “[was] prepared by or for a party or a representative of that party.” Ex parte Flowers, 991 So.2d at 221. Jackson also concedes that “[t]he factual situation surrounding the investigation and the report could lead to the assumption that litigation could be expected.” Jackson’s brief, at 8. Thus, it is undisputed that anticipation of litigation was reasonable, and the question left for this Court to address is whether the report was, in fact, prepared in anticipation of litigation.

In Ex parte Meadowbrook, this Court stated:

“There is a ‘requirement [in] Rule 26(b)(3) of a causal relationship between the impending litigation and the production or use of the documents.’ [Ex parte State Farm Mut. Auto. Ins. Co., 761 So.2d 1000, 1004 (Ala.2000) (Lyons, J., concurring specially) ]. The inquiry ““should be whether, in light of the nature of the document and factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” ’ 761 So.2d at 1002 (opinion of the Court) (quoting Sims v. Knollwood Park Hosp., 511 So.2d 154, 157 (Ala.1987), quoting in turn Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir.1983)). Thus, ‘the purpose for which a party created a document is the fundamental requirement of the Rule, and [regardless of whether] litigation is reasonably anticipated, certain, or even underway, a court must still undertake an examination of why a document was produced.’ ”

987 So.2d at 548-^49 (quoting Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 661 (S.D.Ind.1991) (emphasis omitted)).

However, this Court in Ex parte Flowers stated:

“[I]t is not necessary that statements be made solely in anticipation of litigation to be treated as privileged work product. In Ex parte Alabama Department of Youth Services, 927 So.2d 805, 808 (Ala. 2005), this Court held that ‘[t]he question as to whether the investigative reports are work-product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable ... to assume, in light of circumstances, that litigation could be expected.’ ”

991 So.2d at 225-26.

Schnitzer Steel argues that “Stephanie Roe’s affidavit establishes that the report was prepared in anticipation of litigation.” Petition, at 6. Roe is the Workers’ Compensation Manager at Schnitzer Steel. She testified as follows in her affidavit:

“3. On September 9, 2008, an accident involving Jason Jackson occurred at the Birmingham, Alabama location of Schnitzer Southeast. This accident was assigned to me and I oversaw the handling of the claims stemming from this accident and the gathering and preparation of documents relating to the accident.
“4. Whenever accidents likely to lead to litigation occur at a facility operated by Schnitzer [Steel] or any of its subsidiaries or affiliates (including Schnitzer Southeast), a post-accident investigation report is completed describing the circumstances surrounding the accident. While Schnitzer [Steel] does not have a written policy regarding when a post-accident investigation report is to be completed, such a report is only prepared when an accident occurs that is likely to lead to litigation, and employees do not complete a post-accident investigation report in the normal course of business.
“5. The post-accident investigation report prepared in relation to Mr. Jackson’s accident is a document that was prepared in anticipation for litigation by representatives of Schnitzer [Steel] and/or Schnitzer Southeast.
“6. Because of the nature of the injuries suffered by Jason Jackson during the accident and the circumstances surrounding the accident, Schnitzer [Steel] and Schnitzer Southeast believed that litigation involving the accident was likely when the report was created.
“7. Before the report was created, a workers’ compensation claim had already been filed by Mr. Jackson.
“8. The primary motivating purpose behind the creation of the report was to aid in anticipated future litigation.
“9. In house counsel for Schnitzer [Steel] were involved in the preparation and editing of the report and marked the report as ‘Attorney Client Privilege Prepared for Potential Litigation.’ ”

Jackson argues, however, that the deposition testimony of Cetta, who prepared the initial draft of the report, “establishes that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation.” Jackson’s brief, at 4. Jackson also argues that “Cetta’s deposition testimony establishes that the report was prepared for operational safety concerns.” Id., at 6. Cetta testified that, following the accident, she traveled to the Birmingham facility to conduct the investigation. She testified that such investigations were “routine,” that they were part of Schnitzer Steel’s “process,” and that Schnitzer Steel “used the same procedure for other injuries, cuts to bruises to burns.” Cetta also testified that Schnitzer Steel “was specifically for operations, to review the head of operations and understand what happened, and make sure that they understood ... how to prevent this from ever happening again.” Cetta testified that the final report was distributed to the top managers at various facilities. Jackson argues that this testimony indicates that the report was prepared for operational-safety purposes, not in anticipation of litigation.

However, Cetta also testified in her deposition that, although she prepared an initial draft of the report, her draft was sent to Doug Dunaway, who “worked closely with counsel” at Schnitzer Steel to finalize the report. Cetta testified that Dunaway and Schnitzer Steel’s in-house counsel reviewed and revised her draft and that in-house counsel added language to the report indicating that it was privileged. Cetta also testified that, although investigations of accidents were routine, “[a]s far as the [report], it was reviewed by counsel, which typically they didn’t do that for all accidents. That was a special injury, obviously, and they did make some changes or additions to the document.” The report was not distributed until after it had been reviewed and revised by Dunaway and in-house counsel. Although she stated that “[she] went down [to Schnitzer Southeast] because we wanted to make sure that this ... doesn’t happen again,” she did acknowledge that “there were definitely concerns” at that time about potential litigation.

In Ex parte Alabama Department of Youth Services, 927 So.2d 805 (AIa.2005), this Court addressed whether investigative reports, which the plaintiffs in that case argued “were not prepared solely in anticipation of litigation,” 927 So.2d at 808, could constitute protected work-product. This Court stated: “The question as to whether the investigative reports are work-product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable for DYS to assume, in light of the circumstances, that litigation could be expected.” Id.

The Court also noted that in Ex parte Norfolk Southern Railway, 897 So.2d 290 (Ala.2004), “[w]e held that a recorded statement taken by a claims agent was work-product where ‘[t]he claims agent testified that ... when a fatality or a serious injury occurs in a grade-crossing accident, there is likely to be litigation regarding the accident.’ ” Ex parte Alabama Dep’t of Youth Servs., 927 So.2d at 808 (quoting Ex parte Norfolk Southern Railway, 897 So.2d at 295). We concluded:

“The gravity and extent of the accusations [of physical and sexual abuse] made by the detainees at the Chalkville campus, as well as the Samford letter, [in which DYS’s general counsel stated that he anticipated litigation would arise,] fully support DYS’s position that it anticipated litigation as a result of the alleged incidents, and that the anticipation of litigation was a significant factor in its decision to have the investigative reports prepared. In consideration of these factors, and guided by our holding in Norfolk Southern R[ailway], we find that when the investigative reports were prepared there was clearly a likelihood of litigation resulting from the alleged incidents and, that, therefore, the trial court erred in failing to determine that the investigative reports were work-product prepared in anticipation of litigation.”

Ex parte Alabama Dep’t of Youth Servs., 927 So.2d at 808.

Similarly, in Ex parte Flowers, this Court noted that “it is not necessary that statements be made solely in anticipation of litigation to be treated as privileged work product.” 991 So.2d at 225. In Flowers, an insurance company took several statements from witnesses to an accident that occurred outside a restaurant owned by Roshell Flowers as a result of which Marilyn Ruth Smith Lancaster was severely injured. Lancaster was hospitalized and eventually died, allegedly as a result of the injuries she suffered in the accident. The personal representative of Lancaster’s estate sued Flowers and moved the trial court to compel discovery of the witness statements collected by the insurance company.

In support of her opposition to the motion to compel, Flowers presented the affidavit of Barbara Barrett, the insurance adjuster, who testified that Flowers had forwarded her a letter that she had received from Lancaster’s attorney, indicating that he was representing Lancaster on a claim that she might have as a result of the accident. Barrett also testified that

“she thereafter initiated an investigation, which she believed was in anticipation of litigation. Barrett stated that she anticipated that there would be litigation because ‘[biased on [her] experience and training as a claims agent, when a fatality or severe injury occurs in a premises liability action and the claimant has retained counsel, there is likely to be litigation regarding the accident.’ As part of her investigation she interviewed and took statements from Roshell Flowers, Mack Flowers, Jr., and Donna Flowers.”

Ex parte Flowers, 991 So.2d at 220.

The trial court granted the estate’s motion to compel, and Flowers petitioned for mandamus relief, arguing that the statements were protected by the work-product doctrine. This Court stated:

“We are mindful that just ‘[b]ecause a claims agent may state conclusively that [her] investigation was conducted in “anticipation of litigation” will not necessarily make it so.’ Ex parte State Farm [Mut. Auto. Ins. Co.], 386 So.2d [1133,] 1136-37 [ (Ala.1980) ]. However, in light of our decisions in Ex parte Norfolk Southern Railway and Ex parte Nationwide Mutual Fire Insurance Co., [898 So.2d 720, 723 (Ala.2004),] Barrett’s statements, predicated on her experience and information regarding Lancaster’s claim, are sufficient to establish that the statements were taken in anticipation of litigation. We find particularly compelling the facts that, at the time the statements were taken, Barrett was aware that Lancaster had retained counsel, that Lancaster’s counsel had stated that he represented Lancaster ‘on an action or cause of action which she may have’ against Flowers, that Barrett was aware of the nature of the accident (premises liability), and that Lancaster’s attorney had characterized Lancaster’s injuries as ‘severe,’ noting that Lancaster’s injuries were severe enough to warrant hospitalization and ongoing medical treatment.”

Ex parte Flowers, 991 So.2d at 224-25.

The Court went on to conclude:

“[I]t is not necessary that statements be made solely in anticipation of litigation to be treated as privileged work product. In Ex parte Alabama Department of Youth Services, 927 So.2d [at] 808 ..., this Court held that ‘[t]he question as to whether the investigative reports are work-product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable ... to assume, in light of circumstances, that litigation could be expected.’ ... In the case before us, Barrett was aware that Lancaster allegedly suffered severe injuries on Flowers’s premises and that she was represented by counsel ‘on an action or cause of action which she may have’ against Flowers. As we noted previously, ... this knowledge was sufficient to establish that Barrett could have reasonably foreseen that her insured would be sued.”

Ex parte Flowers, 991 So.2d at 225-26.

Here, the evidence before this Court indicates that, although anticipation of litigation may not have been the sole factor for preparing the report, it was “a significant factor in [Schnitzer Steel’s] decision to have the investigative report[] prepared.” Ex parte Alabama Dep’t of Youth Sens., 927 So.2d at 808. As noted previously, Roe testified that it was the primary purpose for the report and that such reports were prepared only when litigation was anticipated. Cetta acknowledged that the report was reviewed and revised by in-house counsel before it was finalized and that a review of an accident report by in-house counsel did not occur in the ordinary course of business. She also testified that there were concerns about potential litigation at the time she did her inspection of the accident involving Jackson at Schnitzer Southeast.

As in Ex parte Alabama Department of Youth Services and Ex parte Flowers, there may have been “several motivating causes, other than anticipated litigation, for preparing [the report],” but “it was reasonable for [Schnitzer Steel] to assume, in light of circumstances, that litigation could be expected.” Ex parte Alabama Dep’t of Youth Servs., 927 So.2d at 808; Ex parte Flowers, 991 So.2d at 226. Therefore, we agree with Schnitzer Steel that the report is protected work-product, and the trial court erred in compelling discovery of that document.

Conclusion

For the foregoing reasons, we hold that the trial court exceeded its discretion by ordering Schnitzer Steel to produce the report, which was prepared in reasonable anticipation of litigation. Therefore, we grant Schnitzer Steel’s petition and issue the writ of mandamus, directing the trial court to vacate its order granting the motion to compel discovery of the report and to enter an order denying that motion.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, MAIN, and WISE, JJ., concur.

MOORE, C.J., and PARKER and MURDOCK, JJ., dissent.