text:
    Bobby COCKRELL, Jr., and Cockrell & Cockrell v. Juakeishia Vonshai PRUITT.
    1140849.
    Supreme Court of Alabama.
    June 30, 2016.

      William J. Donald and William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellants.
    C. Delaine Mountain and Clint Mountain, Jr., of Mountain & Mountain, Tuscaloosa, for appellee.
   WISE, Justice.

Two of the defendants below—Bobby Cockrell, Jr., and Cockrell & Cockrell (“the Cockrell law firm”) (hereinafter collectively referred to as “the Cockrell defendants”)—filed for permission to appeal pursuant to Rule 5, Ala. R.App. P., from the Tuscaloosa Circuit Court’s partial denial of their motion for a summary judgment as to legal-malpractice claims the plaintiff below, Juakeishia Vonshai Pruitt, filed against them. We affirm the trial court’s order denying the Cockrell defendants’ motion for a summary judgment as to malpractice claims alleging that the Cock-rell defendants were vicariously liable for fraudulent misrepresentations made to Pruitt by an associate at the Cockrell law firm intended to conceal the existence of underlying legal-malpractice claims.

Facts and Procedural History

The legal-malpractice claims in this case arose from Byron House’s representation of Pruitt from late 2000 until January 2012. House worked as an associate with the Cockrell law firm from September 1995 until January 2012. This case involves House’s handling of Pruitt’s claims with regard to four separate causes of action'—Pruitt’s discrimination and breach-of-contract claims against Stillman College; Pruitt’s sexual-discrimination claims against her employer Averitt/i3; Pruitt’s claims against Gwendolyn Oyler arising from an automobile accident; and Pruitt’s breach-of-contract claims against A + Photography.

Pruitt’s Claims Against Stillman College

In late 2000, Pruitt, then an employee of Stillman College, consulted House regarding employment issues she was having as a result of her pregnancy. In December 2000, House wrote a letter to Pruitt’s supervisor regarding Stillman College’s treatment of Pruitt. Pruitt’s son was born on March 7, 2001, but Pruitt alleged that she continued to have issues with Stillman College regarding her employment after he was born. Pruitt stated that, in September 2001, she resigned her employment with Stillman College based on House’s advice. Pruitt stated that, after she resigned, House told her he was going to file a complaint against Stillman College alleging discrimination and breach of contract. Pruitt testified that it was her understanding that her action against Stillman College remained pending until the summer or early fall of 2006 and that, at that time, House told her that he had settled the case. Pruitt executed a document titled “General Release” that purported to set forth the details of the settlement. The release provided for a structured settlement of $212,500. The settlement indicated that $212,500 would be invested in an annuity; that Pruitt would receive an initial lump-sum payment of $25,000; that Pruitt would receive 59 monthly payments of $3,541.66; that the total disbursement would be $233,957.94; and that the initial payment would be payable on November 1, 2006. She also executed paperwork allegedly regarding an annuity. Pruitt stated that House told her that Stillman College was taking care of his attorney fees. She also stated that she started receiving payments shortly after she executed the settlement agreement and that she received the checks directly from House and the Cockrell law firm. The checks were written on the Cockrell law firm’s trust account. Pruitt initially received monthly installments of $3,541.66. However, she stated that, in early 2009, House told her that the company handling the annuity had failed financially and that she could either reduce her monthly payments by roughly one-half or take a very small lump sum; that she told House that she would take the reduced payments; that, in April 2009, she started receiving monthly payments of $1,980; and that she received payments of $1,980 until January 2012. Additionally, House wrote a letter dated August 21, 2007, to a representative of First Federal Bank, apparently at Pruitt’s request. In that letter, House stated, in pertinent part, that, as the result of a settlement reached in 2006, Pruitt had received a lump sum of $25,000; that Pruitt was to receive “sixty (60) monthly payments in the amount of $3,541.66”; that, at the time of the letter, she had received “five (5) of the sixty (60) payments”; and that “[t]he payment of these funds is subject to all judicial sanction.” House sent a similar letter dated March 3, 2011, to Audria Collins of Wells Fargo Bank, again at Pruitt’s request. In that letter, House stated that Pruitt was the beneficiary of a structured settlement that provided for monthly payments of $1,980 for 72 consecutive months starting on April 6, 2009. He also asserted that “[sjaid payments are made by a representative of the settling party via this office.”

However, the undisputed evidence established that House never actually filed an action against Stillman College on Pruitt’s behalf.

Pruitt’s Claims Against Averitt/iS

In April 2006, Pruitt started working for Team One, which provided employees for i3 at the Averitt facility in Tuscaloosa. Pruitt asserted that, while working for Av-eritt/iS, she was sexually harassed by one of her supervisors; that she reported the problems to the company; that she was forced to change assignments after reporting the harassment; that she was unable to perform the duties that were given to her at that time; and that she was ultimately forced to resign. Pruitt initially consulted a different attorney, Benjamin Woolf, regarding her sexual-discrimination claims against Averittyi3, and Woolf sent a demand for settlement of Pruitt’s claim to “Ai3 Logistics” dated January 5, 2007. Subsequently, Woolf filed a discrimination charge with.the Equal Employment Opportunity Commission (“the EEOC”). On October 4,2007, the EEOC sent a notice of right to sue to Pruitt and Woolf. The notice provided:

“Your lawsuit under Title VII ... must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice or your right to sue based on this charge will be lost.”

Pruitt stated that, within a couple of weeks after she received that notice, she went to see House about her action against Aver-itt/iS and that, ultimately, she, House, and Woolf decided that House would handle her sexual-discrimination case against Av-eritt/iS. Pruitt testified that House subsequently told her that he had filed an action against Averitt/i3' and that the case was proceeding. She also testified that she made several inquiries about the status of that case and that House reassured her that the case was progressing in anticipation of trial. At one point, House gave her a list of potential jurors to review in anticipation of a trial he said was scheduled for late 2011. Throughout the process, House informed her that, in addition to preparing for trial, he was also discussing settlement with the Averitt/i3 defendants. Pruitt stated that, in October 2011, she and House agreed that they would negotiate to settle the Averitt/i3 case for 1.65 million dollars; that House reiterated the conversation with her in December 2011; and that. House told her that the case was going to be settled for that amount but that he was ironing out some details about when the amount would be paid. However, the undisputed evidence established that House never filed, an action against Averitt/iS.

' Pruitt's Claims Against Oyler

In February 2008, Pruitt was a passenger in an automobile that was stopped in the drive-thru line of a restaurant when it was struck from behind by a vehicle being driven by Gwendolyn Oyler. Pruitt alleged that Oyler was intoxicated at the time of the accident. She also alleged that her neck and back were injured as a result of the accident and that she received medical treatment for her injuries. Shortly after the accident, Pruitt hired House to pursue claims resulting from the accident. House wrote a letter to Oyler dated March 12, 2008, regarding the accident.

In February 2010, House told Pruitt that he had settled her case against Oyler; that she would receive $5,000; and that her medical expenses would be paid. Pruitt received a $5,000 check from the Cockrell law firm in February 2010. Her medical expenses, however, were never paid. Pruitt testified that she did not learn until January 2012 that her medical expenses had not been paid and that, until that time, House had assured her that he had taken care of payment of all of her medical expenses associated with the accident. Again, the undisputed evidence established that House never filed an action against Oyler regarding the February 2008 accident.

Pruitt’s Claims Against A+ Photography

On November 26, 2007, Pruitt entered into an agreement for A+ Photography to provide photography services for her January 19, 2008, wedding. Pruitt alleged that, pursuant to the contract, A+ Photography agreed to provide her with photographs from her wedding and pre-wedding activities. Pruitt testified that the cost of services was $800; that she paid that amount in full; and that A+ Photography did not provide her with all the photographs as agreed. She also stated that in 2009 House agreed to represent her in a breach-of-contract action against A+ Photography.

In 2011, House told Pruitt that a judgment in the amount of $5,000 had been entered against A+ Photography on her behalf; that they should settle the case for $1,500 to satisfy the judgment; and that on June 9, 2011, she received $1,500 from the Cockrell law firm’s trust account. She also stated that House told her that, as part of the settlement, she would receive the photographs she had contracted for; however, she never received any of the photographs she understood to be part of the settlement, and each time she inquired about the photographs on several occasions after June 2011 House either told her they were to be delivered soon or had some explanation to delay her. The evidence established that House never filed a breach-of-contract action against A+ Photography.

Pruitt’s Malpractice Claims

The evidence established that Pruitt did not learn that House had not filed complaints with regard to any of these four underlying claims until January 2012. Pruitt stated that in December 2011 she requested information from House regarding the case number for her Averitt/i3 case because she wanted to contact the court and get more information on the case; that House provided her with the EEOC claim number for her claim, but not a circuit court case number; and that she tried to use the EEOC claim number to get information about the case, but the court clerks told her that the EEOC claim number was not sufficient. Pruitt testified that, in early January 2012, she had an appointment with House at his office and that House did not show up for the appointment. Pruitt stated that, according to House, the meeting was to go over documents to finalize settlement discussions with regard to her claims against Averitt/i3.

Subsequently, Pruitt met with another attorney, Delaine Mountain. During that meeting, House called Pruitt on her cellular telephone, and Mountain listened to that conversation. On January 18, 2012, Mountain made two telephone calls to Cockrell to discuss Mountain’s concerns regarding House’s handling of Pruitt’s discrimination cases. Cockrell twice confronted House in light of the information he had received from Mountain. Eventually, House told Cockrell that he had missed the statute of limitations on both discrimination cases; that there was no structured settlement in the Stillman College case; and that he had taken money for the alleged settlement payments from the Cock-rell law firm’s general business account and trust accounts. The Cockrell law firm immediately terminated his association with the firm.

On March 1, 2012, Pruitt sued House, Cockrell, and the Cockrell law firm. The complaint alleged a legal-malpractice count pursuant to the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”). The Cockrell defendants answered and pleaded the ALSLA statute of limitations for legal-malpractice claims as a bar to Pruitt’s claims against them.

On March 20, 2018, Pruitt filed her first amended complaint. The amended complaint alleged malpractice under the ALS-LA, asserting:

“49. The Defendants failed to perform their duties in the same manner as an attorney in Alabama who possessed and exercised ordinary and reasonable legal skills and knowledge and [were] therefore guilty of negligence and/or wantonness in that they failed to preserve [Pruitt’s] potential claims and litigate those claims as an ordinary and prudent attorney.
“50. The Defendants made oral and written statements of material facts as well as suppressed material facts with the intent of deceiving and defrauding [Pruitt].
“52. At no time prior to the 12th day of January 2012 did [Pruitt] discover or could have reasonably discovered there was a malpractice claim against the Defendants arising out of their actions and/or inactions with regard to Pruitt’s cases being handled by the [Defendants.
“53. As a proximate result of the Defendants’ said negligence and/or wantonness, [Pruitt] was caused to suffer economic damage[], mental anguish and emotional distress.”

The complaint also sought punitive damages “because of Defendants’ wanton misconduct.”

On March 22, 2013, the Cockrell defendants filed a motion for a summary judgment as to Pruitt’s claims against them. In their brief in support of their motion for a summary judgment, the Cockrell defendants argued, in part, that Pruitt’s legal-malpractice claims against them were barred by the two-year statute of limitations set forth in § 6-5-574, Ala.Code 1975. They asserted that Pruitt’s legal-malpractice claims would have accrued at the time the statute of limitations on her underlying actions expired. With regard to the malpractice claims arising from House’s handling of Pruitt’s claims against Stillman College, the Cockrell defendants asserted that a Title YII charge must be filed with the EEOC within 180 days after the discrimination occurs; that the limitations period for filing a charge with EEOC regarding those claims expired in mid 2001; and that Pruitt thus had until mid 2003 to file a malpractice claim arising from the handling of her discrimination claim against Stillman College.

With regard to House’s handling of Pruitt’s claims against Averitt/i3, the Cockrell defendants asserted that Pruitt’s Title VII claims, as to which she had received notice of right to sue from the EEOC, had to be filed within 90 days after receipt of that notice; that the 90-day period for filing suit against Averitt/iB expired on January 3, 2008; and that the statute of limitations for Pruitt’s legal-malpractice claim arising from the handling of her discrimination claim against Averitt/i3 expired on January 3, 2010.

With regard to Pruitt’s claims against Oyler, the Cockrell defendants alleged that the statute of limitations on that claim expired in January 2010. Therefore, they argued that the statute of limitations for Pruitt’s malpractice claim arising from the handling of that claim expired in January 2012.

Because Pruitt did not file her claims until March 2012, the Cockrell defendants argued that 'all of her malpractice claims, except for the claim arising out of House’s handling of the action against A+ Photography, were barred by the two-year statute of limitations set forth in § 6-5-574(a), AkuCode 1975.

The Cockrell defendants also argued that, even if Pruitt asserted that, pursuant to § 6-2-3, AkuCode 1975, House’s fraudulent misrepresentation or fraudulent concealment of his malpractice tolled the statute of limitations for her legal-malpractice action, Pruitt’s malpractice claims arising from the handling of her claims against Stillman College and Averitt/i3 are nonetheless barred by the four-year statute of repose set forth in § 6-5-574. They argued that, under the statute of repose, Pruitt’s malpractice claim arising from the handling of her discrimination claims against Stillman College was barred no later than mid 2005 and that her malpractice claim arising from the handling of her discrimination claim against Averitt/i3 was barred after January 3,2012.

On July 25, 2013, Pruitt filed her response to the Cockrell defendants’ motion for a summary judgment. In her response, Pruitt argued that none of her claims was time-barred. Pruitt agreed that all of her claims were subsumed within the ALSLA. Additionally, she did not dispute that § 6-5-574 sets forth a two-year statute of limitations and a four-year statute of repose for legal-malpractice claims. However, she argued that House had fraudulently and intentionally concealed material facts from her regarding her claims; that “all of the time periods began to accrue from the time the fraud(s) were discovered”; that “neither the 2-year statute of limitation [n]or 4-year statute of repose began to run until 2 years after the discovery of the .acts as the basis of the suit or 4 years after the last act occurred.” She also asserted that, in addition to her discrimination claim against Stillman College, she also had a breach-of-contract claim against Stillman College.

On July 29, 2013, the Cockrell defendants filed a reply to Pruitt’s response. They argued that Pruitt’s fraud and suppression claims were not pleaded in the complaint and were not separate from her legal-malpractice claims.

On January 8, 2014, the trial court granted the Cockrell defendants’ motion for a summary judgment in part and denied it in part. Specifically, it entered a summary judgment for the Cockrell defendants “[a]s to" direct liability, be it for negligence or wantonness, relating to the handling of employment discrimination and breach of contract claims against Stillman College, employment discrimination against Averitt, and breach of contract against A+ Photograph/’; “[a]s to any direct liability under the theory of recovery for wantonness relating to the ear accident”; “as to any vicarious liability as to Defendant House’s fraud, wantonness, or negligence as to the handling of the employment discrimination and breach of contract against Stillman College, the employment discrimination against Averitt, and breach of contract against A+ Photography”; and “[a]s to any direct liability for the separate claims of fraud.” The trial court denied the Cockrell defendants’ motion for a summary judgment “as to any direct liability under the theory of recovery for negligence relating to the car accident”; “[a]s to any vicarious liability as to Defendant House’s fraud, wantonness, or negligence regarding the handling of the claim relating to the car accident”; and “[a]s to any vicarious liability as to Defendant House’s fraudulent conduct for separate claims of fraud” (Emphasis added.) Thus, the only remaining claims against the Cockrell defendants were claims regarding negligence as to the handling of the legal matters arising out of the automobile accident, vicarious liability for House’s actions in handling those matters, and vicarious liability as to the separate acts of fraud on House’s part alleged by Pruitt.

On January 23, 2014, Pruitt filed a motion asking the trial court to clarify its January 8, 2014, order. On February 4, 2014, the Cockrell defendants filed a motion to amend the trial court’s summary-judgment order. On February 6, 2014, the Cockrell defendants filed their response to Pruitt’s motion to clarify. On July 23, 2014, Pruitt filed a motion to certify the judgment to allow a permissive appeal to this Court. On April 30, 2015, the trial court entered its order denying the parties’ motions to clarify and to amend its January 8, 2014, order. However, it also entered an order certifying that its judgment was appropriate for a permissive appeal under Rule 5, Ala. R.App. P., and included five controlling questions of law. Pruitt and the Cockrell defendants then filed in this Court petitions for permissive appeal. This Court denied Pruitt’s petition for permissive appeal but granted the Cockrell defendants’ petition as to one of the questions certified by the trial court.

Discussion

The trial court’s certification included the following controlling question of law for permissive appeal:

“Whether acts of fraud committed by an attorney which defraud the client as to the status of the client’s underlying claim are actionable under the ALSLA separate and apart from the attorney’s failure to timely file suit on the underlying claim?”

This case presents a pure question of law. This Court has held: ‘ “[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo’” Rogers Found, Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).” City of Prattville v. Corley, 892 So.2d 845, 847 (Ala.2003).

In answering the trial court’s question, we are guided by the following principles of statutory construction:

“Tn determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.’ DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998).
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).”

City of Prattville v. Corley, 892 So.2d at 848.

“In Archer v. Estate of Archer, 45 So.3d 1259, 1263 (Ala.2010), this Court described its responsibilities when construing a statute:
“ ‘ “ ‘[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute.... “1 “ ‘[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section.’
“ ‘ “Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further, “ ‘ “ ‘when determining legislative
intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute.... When the language is clear, there is no room for judicial construction.... ’ “ ‘ “Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002).” ’
“(Quoting Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So.2d 727, 729 (Ala. 1993), the Court stated:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute.... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning. ... Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, ... parts of the same statute are in pari materia and each part is entitled to equal weight.” ’
“(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979).)”

First Union Nat’l Bank of Florida v. Lee Cty. Comm’n, 75 So.3d 105, 111-12 (Ala. 2011).

In its order on the Cockrell defendants’ motion for a summary judgment, the trial court framed Pruitt’s allegations regarding House’s separate acts of fraud as follows:

“Plaintiff alleges she should recover for separate acts of fraud under the ALSLA. She claims that the ‘final acts’ of fraud in each case are actionable.... The separate fraud claim dates are as follows: January 5, 2012 (issuance of a check related to Stillman College claims), January 2012 (misrepresentation of the disposition of her case against Averitt), February 2010 (issuance of the check related to the car accident), and June 2011 (issuance of a check related to A + Photography). Id. at p. 3-4 and 7.
“ ‘The tort of fraudulent misrepresentation under § 6-5-101, Ala.Code 1975, requires “(1) a false representation, (2) regarding a material existing fact, (3) which the plaintiff relies upon, and (4) damages proximately caused by the misrepresentation.’” Boros v. Baxley, 621 So.2d 240, 242 (Ala.1993) (citation omitted).
“‘The elements of a cause of action for fraudulent suppression are: (1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.’ Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996).
"....
“VICARIOUS LIABILITY
"....
“Separate Acts of Fraud
“There is a question of whether Cock-rell Defendants are liable for Defendant House’s acts or omissions under an agency relationship theory for the separate acts of fraud. Since Plaintiff filed March 1, 2012, the dates from fraud claims in January 2012 [Stillman College and Averitt/i3] and June 2011 [A 4- Photography] were filed within the statute of limitation under the ALSLA. The fraud claim from February 2010 [Oyler accident] falls within the six-month savings provision under the ALSLA and was thus timely filed.
“Wherefore the Court DENIES Defendants’ Motion for Summary Judgment for any agency theory for the separate acts of fraud.”

(Capitalization in original.)

The Cockrell defendants argue that House’s fraudulent actions regarding Pruitt’s underlying claims were not actionable separately and distinctly under the ALSLA from claims relating to House’s failure to file suit on those claims. Thus, the Cockrell defendants argue that Pruitt’s legal-malpractice claims against them are barred by the four-year statute of repose set forth in Section 6-5-574, Ala.Code 1975, which provides:

“(a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure; except, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date.
“(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his or her eighth birthday to commence such action.”

(Emphasis added.)

Section 6-5-573, AIa.Code 1975, provides that “[t]here shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.”

Section 6-5-572, Ala.Code 1975, defines a “legal service liability action” as follows:

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

(Emphasis added.)

This Court has held that the ALSLA “applies to a legal malpractice action based upon fraud. Leighton Avenue Office Plaza, Ltd. v. Campbell, 584 So.2d 1340 (Ala. 1991).” Voyager Guar. Ins. Co. v. Brown, 631 So.2d 848, 850 (Ala.1993). Further, this Court has held:

“[U]nder § 6-5-574(b), a legal malpractice action based on allegations of fraud must be commenced within two years after the discovery by the aggrieved party of the fact constituting the fraud; provided, however, that no action may be commenced more than four years after the act or acts constituting the fraud. The burden is on the plaintiff to show that he comes within the § 6-2-3 tolling provision. Lowe v. East End Memorial Hospital, 477 So.2d 339 (Ala. 1985). Russell v. Maxwell, 387 So.2d 156 (Ala.1980); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).”

Ex parte Seabol, 782 So.2d 212, 215 (Ala.2000) (emphasis added). However, this Court has not addressed the specific issue presented in this case—whether the ALS-LA allows a plaintiff to assert a fraud claim that is based on misrepresentations an attorney has made solely for purposes of concealing a potential legal-malpractice cause of action against him or her and that is separate and distinct from claims based on the underlying legal malpractice.

Nothing in the plain language of the ALSLA specifically precludes a claim based on an attorney’s fraudulent actions made for the purpose of concealing the fact that the plaintiff had a legal-malpractice claim against that attorney. The definition of a legal-service-liability action set forth in § 6-5-572(1) includes any action filed against a legal-service provider that is based on an injury or damage caused by a breach of the standard of care applicable to the legal-service provider. Further, § 6-5-572(1), Ala.Code 1975, provides that a legal-service-liability action embraces “all claims for injuries or damages.” Fraudulent misrepresentations by an attorney for the purpose of concealing the attorney’s malpractice that could likely result in a legal-malpractice claim against the attorney would obviously fit within the definition of a legal-service-liability action set forth in § 6-5-572(1), Ala.Code 1975. To hold otherwise would allow an attorney who has committed malpractice with regard to a client’s underlying legal claims to escape liability for that malpractice simply by engaging in an ongoing scheme of making intentionally false misrepresentations to the client regarding the status of the client’s underlying legal claims until the four-year statute of repose for filing a legal-malpractice claim had expired.

In Ex parte Sonnier, 707 So.2d 635 (Ala.1997) (“Sonnier II ”), this Court addressed a similar issue with regard to medical-malpractice claims brought pursuant to the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”). This Court has held that “ ‘[t]he AMLA applies “[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care.” § 6-5-548(a), Ala.Code 1975.’ Mock v. Allen, 783 So.2d 828, 832 (Ala.2000).” Ex parte Vanderwall, 201 So.3d 525, 533 (Ala.2015) (emphasis omitted). Also, § 6-5-482, Ala.Code 1975, which sets forth limitations on the time for commencing a medical-malpractice action, contains a statute of limitations and statute of repose substantially similar to those set forth in the ALSLA.

In Sonnier II, this Court granted certio-rari review as to whether the Court of Civil Appeals’ decision in Talley v. Sonnier, 707 So.2d 631, 632 (Ala.Civ.App.1996) (“Sonnier I ”), conflicted with this Court’s previous decision in Jones v. McDonald, 631 So.2d 869 (Ala.1993), regarding application of the statute of limitations for medical-malpractice actions set forth in § 6-5-482, Ala.Code 1975. In addressing this issue, this Court stated:

“Because the Talleys [the plaintiffs] were the nonmovants in the summary judgment proceedings, we must consider the evidence in the light most favorable to their position. Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992). Mrs. Talley alleges that the defendants performed an unnecessary hysterectomy on her on April 1, 1991. For the sake of removing a supposed cervical cancer, the defendants removed Mrs. Talley’s uterus. Mrs. Talley also alleges that the defendants falsely represented to her, both before and after the hysterectomy, that she had had cancer and that the hysterectomy was necessary because of the cancer. In December 1994, Mrs. Talley read a magazine article about unnecessary hysterectomies. She asserts that she then obtained her 1991 hospital records and discovered that the 1991 diagnosis of cancer was incorrect. The Talleys filed this action on April 5, 1995, four years and four days after the hysterectomy. The circuit court entered a summary judgment for the defendants, who had moved for a summary judgment on the basis that the period of limitations had expired four days before the Talleys filed their complaint. The Court of Civil Appeals reversed, holding that ‘the evidence of these misrepresentations created a genuine issue of fact as to the date on which the claims would have been barred and that a jury could determine that on each visit a separate act of malpractice occurred.’
“Sections 6-5-480 et seq. and 6-5-540 et seq., Ala.Code 1975 (the ‘Alabama Medical Liability Act,’ hereinafter ‘AMLA’), govern medical malpractice actions in Alabama. Section 6-5-482(a) provides:
“‘[Medical malpractice actions] must be commenced within two years next after the act ... giving rise to the claim ...; provided, that if the cause of action is not discovered and could not reasonably have been discovered ■within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act...
“Subsection (b) states that the tolling provisions appearing elsewhere in the Code shall apply to medical malpractice actions, but reiterates the rule that ‘no action shall be commenced more than four years after the act, omission, or failure complained of.’ This Court has held that the four-year period of repose in the AMLA is an ‘absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.’ Bowlin Horn v. Citizens Hospital, 425 So.2d 1065, 1070 (Ala.1982).
“There is no dispute that the complaint was filed more than two years after the date of the alleged malpractice. Therefore, if the complaint was timely, it was because of the operation of the provision that where the cause of action is not discovered within the two-year period an action may be commenced within six months after the discovery. The defendants do not dispute Mrs. Talley’s claim that she did not discover, and could not reasonably have discovered, before December 1994 that she had a cause of action arising from the hysterectomy and the subsequent treatment. It is also undisputed that the Talleys did file the complaint within six months after this discovery. The defendant doctors continued to treat Mrs. Talley until October 1991, less than four years before the complaint was filed on April 5, 1995.
“The limitations period for a medical malpractice action begins to run upon the accrual of a cause of action. Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994). Accrual occurs when the wrongful act ‘results in legal injury to the plaintiff.’ Id. In Delchamps, the plaintiff received a jaw implant and subsequently suffered bone degeneration. This Court held that the key inquiry in determining the accrual date of her claim was not the date of her surgery, or the date on which she became aware of the degeneration, but the time at which she first suffered the degeneration. 642 So.2d at 958. Mrs. Talley suffered the alleged legal injury caused by the performance of the hysterectomy not later than April 1, 1991. Therefore, any claims arising from the performance of the hysterectomy itself are barred by the four-year period of repose. The remaining question is whether the summary judgment was proper as to the claims based on alleged misrepresentations by Mrs. Talley’s doctors after her surgery.
"....
“To allow the subsequent misrepresentations to extend the statute of limitations as to malpractice relating to the hysterectomy, as the Talleys ask us to do, we would have to adopt the ‘continuing treatment rule,’ which was once accepted under Alabama law. At one time, the law was that ‘the statute begins to run when the relation of surgeon and patient ends with reference to the ailment treated.’ Hudson v. Moore, 239 Ala. 130, 133, 194 So. 147, 149 (1940). That law may still apply except in actions governed by the AMLA. In Moore v. Avert, 534 So.2d 250 (Ala.1988), an action against a podiatrist, this Court held that ‘the statute of limitations commences to run when the improper course of examination, and treatment if any, ... terminates.’ 534 So.2d at 254.
“Neither Hudson nor Avert was governed by the AMLA. This Court considered the continuing treatment rule in Jones v. McDonald, 631 So.2d 869 (Ala. 1993), and held that it did not apply in actions brought under the AMLA. In fact, the Court held that application of the continuing treatment rule would be inconsistent with the provision that allowed for tolling the statute of limitations during periods before the injury could be discovered, concluding that the continuing treatment rule and the statutory tolling provision served virtually the same purpose. 631 So.2d at 872.
“The Talleys argue that the subsequent misrepresentations were separately actionable incidents of malpractice. These alleged misrepresentations took place after the surgery, from April 1991 until October 1991. Claims alleging misrepresentations made during the course of a doctor-patient relationship are claims of malpractice and are governed by the AMLA. Benefield v. F. Hood Craddock Clinic, 456 So.2d 52, 54 (Ala.1984). Therefore, the statutory limitations period for these alleged incidents of malpractice is also two years, although the running of that period would be tolled by Mrs. Talley’s inability to discover the fact that she had a cause of action. Because the Talleys allege that several of the misrepresentations were made after April 5, 1991, the four-year period of repose would not bar claims based on those incidents, if those incidents do give rise to actionable claims of malpractice.”

Sonnier II, 707 So.2d at 636-38 (emphasis added).

In this ease, after the statute of limitations had run on Pruitt’s underlying claims against Stillman College, Averitt/i3, and Oyler, House made intentional misrepresentations to Pruitt regarding the status of those cases. House also made intentional representations regarding the status of Pruitt’s case against A+ Photography. Additionally, House continued to make such representations regarding the status of Pruitt’s cases against Stillman College and Averitt/i3 until well after the time any legal-malpractice case against him would have been barred by the statute of repose set forth in § 6-5-574, Ala,Code 1975. As was the case in Sonnier II, those misrepresentations during the course of House’s representation of Pruitt would constitute claims of legal malpractice that are governed by the ALSLA. Thus, pursuant to the reasoning in Sonnier II, Pruitt could bring separate tort claims under the ALS-LA based solely on House’s fraudulent concealment of her malpractice claims against him. However,

“under § 6—5—574(b), a legal malpractice action based on allegations of fraud must be commenced within two years after the discovery by the aggrieved party of the fact constituting the fraud; provided, however, that no action may be commenced more than four years after the act or acts constituting the fraud.”

Ex parte Seabol, 782 So.2d at 215. Thus, Pruitt’s claims would be limited to misrepresentations House made to Pruitt regarding the status of her various actions during the four years preceding the filing of her complaint. Cf. Sonnier II, 707 So.2d at 638 (holding that, because the plaintiffs, who had filed their medical-malpractice complaint on April 5, 1995, “allege that several of the misrepresentations were made after April 5, 1991, the four-year period of repose would not bar claims based on those incidents, if those incidents do give rise to actionable claims of malpractice”). In this case, the trial court found that the separate fraud claims were based on the January 5, 2012, issuance of a check related to the Stillman College claims, the January 2012 misrepresentation to Pruitt regarding the disposition of her case against Averitt/i3, the February 2010 issuance of a check related to the car accident, and the June 2011 issuance of a check related to A+ Photography. All of these alleged acts of fraud occurred within the four-year period preceding the filing of the complaint in this case.

To succeed on her legal-malpractice claims based on House’s fraudulent actions, Pruitt will be required to establish the elements of fraud and fraudulent suppression:

“Four elements must be proven in a fraud action: (1) There must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation; and (4) the plaintiff must be damaged as a proximate result. Crowne Investments, Inc. v. Bryant, [638 So.2d 873] (Ala.1994).”

Voyager Guar. Ins. Co. v. Brown, 631 So.2d 848, 850 (Ala.1993). The elements of fraudulent suppression are:

“(1) [T]he defendant had a duty to disclose an existing material fact; (2) the defendant concealed or suppressed that material fact; (3) the defendant’s suppression induced the plaintiff to act or refrain from acting; and (4) the plaintiff suffered actual damage as a proximate result. Freightliner, LLC v. Whatley Contract Carriers, LLC, 932 So.2d 883, 891 (Ala.2005). ‘ “[A]n action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.”’ Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716, 726 (Ala.2009) (quoting McGarry v. Flournoy, 624 So.2d 1359, 1362 (Ala.1993)).”

Coilplus-Alabama, Inc. v. Vann, 53 So.3d 898, 909 (Ala.2010).

Because this is a permissive appeal, the question before us is limited to whether a fraud committed by an attorney who defrauds a client as to the status of the client’s underlying claim is actionable under the ALSLA separate and apart from the attorney’s failure to timely file a complaint on the underlying claim. Any questions as to whether Pruitt’s complaint adequately alleges a legal-malpractice claim based on the separate alleged acts of fraud and whether Pruitt can establish that she suffered damage as a result of the specific alleged fraudulent misrepresentations House made during the four-year period preceding the filing of the complaint are not properly before this Court. See BE&K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003) (holding that “this Court will not expand its review on permissive appeal beyond the question of law stated by the trial court”).

Conclusion

A fraud committed by an attorney that defrauds the attorney’s client as to the status of the client’s underlying claim is actionable under the ALSLA separate and apart from the attorney’s failure to timely file a complaint on the underlying claim. Therefore, the trial court properly denied the Cockrell defendants’ motion for a summary judgment as to the malpractice claims alleging that the Cockrell defendants were vicariously liable for fraudulent misrepresentations House made to Pruitt to conceal the existence of an underlying legal-malpractice claim. Accordingly, we affirm the trial court’s order.

AFFIRMED.

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

SHAW, J., concurs in the result.

PARKER and MURDOCK, JJ., dissent.

MURDOCK, Justice

(dissenting).

I am inclined to the view that the active, purposeful, and successful concealment by an attorney of his failure to have timely filed a lawsuit on behalf of a client is properly understood not as a separate tort, but rather as an act that prevents the running of the rule of repose as to the underlying failure by that attorney. Among other things, to understand the client’s remedy against her attorney as limited to a claim that, had the attorney not actively and fraudulently concealed from her the attorney’s underlying failure, she would have sued the attorney on a timely basis to seek redress for that failure and that she would have been successful in that suit is to require of the client an entire additional layer of proof addressed to potentially a multitude of variables.

The question of the extension of the rule of repose is not before us in this permissive appeal. Because I am not persuaded that an affirmative answer is appropriate to the separate-cause-of-action question that is before us, I am compelled to dissent.

      . The complaint in this case refers to the plaintiff as “Juakeishia Vonshai Pruitt.” In other documents in the record, Pruitt is also identified as “Juakeishia Sims,” “Juakeishia Mosley,” and "Juakeishia Sims-Mosley.”

      . The statute of limitations for a breach-of-contract claim is six years. • See § 6-2-3 4(a), Ala. Code 1975,


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Gene PONDER v. LAKE FOREST PROPERTY OWNERS ASSOCIATION et al.
    2130790.
    Court of Civil Appeals of Alabama.
    June 26, 2015.

      Richard L. Watters, Mobile; and Frank L. Thiemonge III, Mobile, for appellant.
    Helen J. Alford and Kristy W. Dugan of Alford Bolin, LLC, Mobile; and Patrick B. Collins, Daphne, for appellees.
   DONALDSON, Judge.

Gene Ponder appeals a summary judgment entered by the Baldwin Circuit Court (“the trial court”) in favor of Lake Forest Property Owners Association, Inc. (“LFPOA”), on Ponder’s claims against LFPOA and on LFPOA’s counterclaims against Ponder. Ponder also appeals the dismissal of his claims against the members of the LFPOA Board of Directors (“the Board”) in their individual capacities.

Many of the dispositive facts of this case are undisputed, and both Ponder and LFPOA moved for summary judgment based on those facts. LFPOA is a nonprofit corporation that was formed in Baldwin County in 1971, whose members are property owners within the Lake Forest subdivision. At all times relevant to this action, Ponder and his wife have owned a residence in the Lake Forest subdivision subject to the purview of LFPOA. Before October 20, 2003, the LFPOA bylaws permitted amendments to the bylaws to be made only by vote of a majority of LFPOA’s members at a membership meeting. The bylaws as they existed at that time also provided that “[ajnnual increases in dues must be approved by members of the [LFPOA] at the annual meeting. The Board [has] no authority to increase dues.” On October 20, 2003, a majority of LFPOA’s members voted to amend the bylaws to allow the bylaws to be amended by a majority vote of the members of the Board.

At a regular meeting of the Board in November 2003, the Board voted to delete the newly added language in the bylaws permitting the bylaws to be amended by a “vote of a majority of the Board ... at any meeting thereof.”

On April 28, 2008, the Board passed a motion rescinding its action of November 2003 that had deleted the amended language in the bylaws. The LFPOA bylaws contain a provision that states:

“Section 3.10. Rules of Meetings. All meetings of the membership and stated meetings of the Board of Directors shall be conducted in accordance with the procedures set out in the current edition of ‘Robert’s Rules of Order,’ except where such rules are superseded by the Articles of Incorporation, the By-Laws or Federal or State law.”

Article IX, § 35, of Robert’s Rules of Order (10th ed.) provides that to rescind “is to strike out an entire main motion, resolution, rule, bylaw, section, or paragraph that has been adopted at some previous time.” On September 29, 2009, the Board met and voted to “restore” Section 2.4 of the LFPOA bylaws, which had provided the process for assessing and raising membership dues, to its “original form.” Although the record does not appear to contain an “original” copy of the bylaws from 1971, the oldest amended version of the bylaws in the record is dated October 10, 1988. Section 2.4 of that version of the bylaws provided:

“Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association.
“Annual increases in dues must be approved by the members of the Association at the annual meeting. The Board of Directors has no authority to increase dues. The power of authority of the Board of Directors is limited to one (1) assessment annually, if deemed necessary, for the preservation of the Association. This assessment cannot exceed $50.00 per member annually.”

On October 4, 2009, the Board conducted a special meeting to discuss changing the amount of membership dues. At that meeting, the Board passed a motion to increase the LFPOA monthly dues by $6.00 per month effective January 2010. The Board met for another special meeting on October 10, 2009, at which the Board ratified its act of increasing the membership dues taken at the October 4, 2009, Board meeting. The record further indicates that Section 2.4 of the LFPOA bylaws as amended on October 10, 2009, provided:

“Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association. Note: Pursuant to a motion made in a special meeting on October 4th, 2009 a maximum cap of 3% can be issued by the Board of Directors as determined at the Annual Meeting.”

In October 2010, Ponder was elected to the Board and appointed as secretary of LFPOA. Upon assuming his position on the Board, Ponder signed copies of the “Board Member Code of Ethics,” “Code of Conduct,” and “Confidentiality Policy.” Ponder subsequently made several requests to LFPOA president Mary Ann Hampton to provide him with a copy of the LFPOA membership list with member email addresses, including a request by email in July 2011. Hampton replied to Ponder’s e-mail request but refused to provide the membership list on the ground that giving him the list would be a violation of federal privacy law. Ponder obtained member e-mail addresses from another source, and in August 2011, he sent an e-mail from a personal e-mail account to the member e-mail addresses he had obtained in which he listed various complaints against LFPOA, sought participation from those members in a potential lawsuit against LFPOA, and encouraged members to seek to remove their properties from the purview of LFPOA. Ponder sent an e-mail from the same e-mail account to request that the Board remove his property from the purview of LFPOA, and he volunteered to remove himself from the Board once his property was removed from the purview of LFPOA. Ponder’s wife sent invitations to the same set of member e-mail addresses inviting members of LFPOA to an informational meeting at a restaurant to consider a lawsuit against LFPOA and the members of the Board. Ponder attended that meeting, which was held on August 31, 2011, and participated in a video presentation outlining his complaints.

On September 8, 2011, the Board met at a specially called meeting at which it voted to remove Ponder as a member of the Board for cause.

On July 27, 2012, Ponder filed a complaint against LFPOA and Board members Mary Ann Hampton, Richard Kersey, Ed Kirby, Travis Stone, Bill Menefee, Marie Bidney, Tony Dees, and Ray Sturch in their individual capacities. Ponder’s complaint alleged claims for relief based on allegations of conspiracy and unjust enrichment, and he sought a judgment declaring that the Board did not have the authority to amend the LFPOA bylaws in July 2011, that the Board did not have the authority to raise dues, and that the Board did not have the authority to remove Ponder as a member of the Board.

LFPOA and the individual Board members filed motions to dismiss the Board members as defendants. On December 18, 2012, the trial court entered an order granting the motion to dismiss the Board members in their individual capacities. On January 8, 2013, LFPOA filed an answer and a counterclaim against Ponder seeking damages from him based on claims alleging breach of fiduciary duty, spoliation of evidence, intentional interference with a business relationship, and defamation per se. Ponder answered the counterclaim with a general denial. On July 8, 2013, LFPOA amended its counterclaim to seek judgment declaring that the bylaws had been properly amended in July 2011, that the Board had the authority to raise dues, and that the Board had the authority to remove Ponder as a member of the Board for cause.

On July 11, 2013, Ponder amended his complaint to include a claim for relief on behalf of a class of LFPOA members who had been subject to the increased dues. Ponder also added a claim of breach of contract against LFPOA. On July 17, 2013, LFPOA filed a motion to strike Ponder’s class allegations in his amended complaint.

On September 26, 2013, LFPOA filed a motion seeking a summary judgment as to both Ponder’s claims and its counterclaims. LFPOA supported its motion with a brief and exhibits including the LFPOA articles of incorporation, the LFPOA bylaws as amended in 1988, proposed amendments submitted to the LFPOA membership in 2003, the LFPOA bylaws as amended in 2008, the LFPOA bylaws as amended in 2009, the LFPOA bylaws as amended in 2010, the LFPOA bylaws as amended in 2011, minutes from several LFPOA Board meetings, a 2010 letter from attorney Robert S. Edington opining that the LFPOA bylaws had been properly amended to allow the increase in dues, a copy of the “Board Member Code of Ethics” signed by Ponder on October 25, 2010, a copy of the Board’s confidentiality policy signed by Ponder on October 25, 2010, portions of Ponder’s deposition, e-mails sent by Ponder, printouts from a Web site built by Ponder soliciting participation in a class-action lawsuit against LFPOA, an e-mail from Ponder’s wife Kay Ponder inviting LFPOA members to a meeting regarding the proposed class-action lawsuit, portions of Kay Ponder’s deposition, and a copy of Ponder’s deed to his property subject to the purview of LFPOA.

On September 28, 2013, Ponder filed a motion seeking a summary judgment as to both his claims and LFPOA’s counterclaims. Ponder supported his motion with a brief and exhibits including documents from the 2003 LFPOA annual meeting, the LFPOA bylaws as amended in 2006, 2009, and 2011, minutes from several LFPOA Board meetings, e-mails between Ponder and Board members, letters to Ponder from attorney Patrick Collins regarding the Board’s decision to remove him from the Board, a copy of the LFPOA articles of incorporation, and an affidavit from Ponder.

Each party filed a response to the opposing party’s motion for a summary judgment, which responses included voluminous additional exhibits and affidavits. Each party moved to strike various exhibits filed by the other, which resulted in numerous additional responses and replies, again with voluminous, and largely redundant, exhibits. On November 25, 2013, Ponder moved for certification of his class claims.

On February 13, 2014, the trial court entered a summary judgment in favor of LFPOA and against Ponder. The trial court further ruled that Ponder’s motions to strike and for class certification were moot based on the ruling in favor of LFPOA. The judgment found Ponder to be liable to LFPOA but did not address damages. On March 17, 2014, Ponder filed a motion to vacate the summary judgment on LFPOA’s counterclaims, which the trial court denied on May 27, 2014. On June 16, 2014, Ponder filed a motion in opposition to assessing damages. On June 17, 2014, the trial court held a hearing on damages. On June 18, 2014, the trial court entered an order assessing damages against Ponder in the amount of $36,061.25 in compensatory damages and $10,000 in punitive damages. Ponder did not file any postjudgment motions after the entry of the award of damages. Ponder filed his timely notice of appeal on June 23, 2014.

Ponder argues five issues on appeal: 1) whether the trial court erred in dismissing the LFPOA Board members in their individual capacities; 2) whether the trial court erred in entering a summary judgment in favor of LFPOA; 3) whether the trial court erred in calculating the award of damages; 4) whether the trial court erred by not entering a summary judgment in favor of Ponder on his claims; and 5) whether the trial court erred by not ruling in Ponder’s favor on LFPOA’s counterclaims against him.

Ponder first argues that the trial court erred in dismissing the Board members in their individual capacities. Specifically, he argues that he “made allegations that the individual Board members conspired with themselves and others to perform, aid and abet the unlawful conduct alleged in the Complaint.” In his complaint, Ponder alleged that the individual Board members conspired to “carry out the wrongful conduct herein alleged and to conceal said conduct.” Ponder alleged that the Board members wrongfully concealed from LFPOA’s members unauthorized changes to the bylaws, that the Board members unlawfully raised membership dues, and that the Board members unlawfully removed him from the Board without the vote of the LFPOA membership. We review a trial court’s decision to grant a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., by asking

“whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted). Based on the arguments presented by Ponder on appeal, the issue before us is whether his claim of civil conspiracy against the Board members rests on a legally actionable underlying unlawful act.

“A conspiracy cannot exist in the absence of an underlying tort. ‘[Liability for civil conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides no cause of action, then neither does the conspiracy.’ Jones v. BP Oil Co., 632 So.2d 435, 439 (Ala.1993). Because the record does not support [the plaintiffs] malicious prosecution claim or his abuse of process claim, his conspiracy claim is invalid.”

Willis v. Parker, 814 So.2d 857, 867 (Ala.2001). The parties do not address whether Ponder’s unjust-enrichment claim sounded in tort or contract. Our supreme court has declined to definitively answer whether an unjust-enrichment claim sounds in tort or contract. Snider v. Morgan, 113 So.3d 643, 655 (Ala.2012)(noting that it is unclear whether a statute of limitations applicable to contract claims or one applicable to tort claims would apply to an unjust-enrichment claim: “Our research similarly confirms that there is a distinct absence of authority definitively stating the statute of limitations applicable to an unjust-enrichment claim. We need not, however, decide that issue here.”). Some courts have treated unjust enrichment as a contractual claim stemming from a contract implied in fact or implied in law. See American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 813 (Ala.2004)(finding that a claim of unjust enrichment based on money had and received was subject to the six-year statute of limitations applicable to actions sounding in contract: “On claims for unjust enrichment and money had and received, a plaintiff may commence a suit as soon as the defendant receives money and the circumstances imply the obligation to restore it.”). Others have treated unjust enrichment as a tort claim when arising from á tortious act. See Auburn Univ. v. International Bus. Machs. Corp., 716 F.Supp.2d 1114, 1118 (M.D.Ala.2010)(holding that plaintiffs claim of unjust enrichment was a tort claim arising from the defendant’s alleged conversion of intellectual property: “[I]t would be improper to classify all unjust-enrichment claims as either tort claims ... or implied-contract claims.... ”).

To the extent that Ponder’s claim of unjust enrichment may be considered a claim sounding in tort, because we hold in this opinion that the trial court’s summary judgment on the underlying issue of the Board’s raising the membership dues was not in error, we determine that Ponder could not recover for unjust enrichment sounding in tort. Therefore, to the extent that the trial court might have erred in dismissing Ponder’s conspiracy claim against the individual Board members on Ponder’s claim of unjust enrichment insofar as it sounded in tort, we hold that such error is harmless. See Rule 45, Ala. R.App. P.

The remainder of Ponder’s claims alleging unlawful acts upon which Ponder based , his claim of civil conspiracy against the individual Board members involve alleged acts in violation of the contractual terms of the LFPOA bylaws, including his claim of unjust enrichment to the extent that it might sound in contract.

“ ‘It is well established that the constitution, bylaws, rules and regulations of a voluntary association constitute a contract between the association’s members, which is binding upon each member so long as the bylaws, etc., remain in effect. Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944). Any dispute between a voluntary association and one of its members concerning the construction or validity of the association’s constitution, bylaws, rules and regulations constitutes a dispute as to the construction or validity of a written contract.’
“Wells v. Mobile County Bd. of Realtors, 387 So.2d 140, 142 (Ala.1980).”

Dawkins v. Walker, 794 So.2d 333, 339 (Ala.2001). When a plaintiff has based a claim of civil conspiracy on a breach of contract, our supreme court has held: “Because [the plaintiff] has failed to demonstrate that civil conspiracy can be based upon a breach of contract as the underlying wrong, we do not address that claim. To the extent the summary judgment disposed of that claim, we affirm it.” Hooper v. Columbus Reg’l Healthcare Sys., Inc., 956 So.2d 1135, 1142 (Ala.2006). See also Barber v. Stephenson, 260 Ala. 151, 155, 69 So.2d 251, 255 (1953)(“[I]t is generally held that an action for conspiring with another to induce the latter to break his contract cannot be maintained, the remedy being to sue on it. Erswell v. Ford, 208 Ala. 101, 94 So. 67 [ (1922) ]; Louisiana Oil Corp. v. Green, 230 Ala. 470, 161 So. 479 [ (1935) ].”). Therefore, we affirm the trial court’s dismissal of Ponder’s claim of civil conspiracy against the individual Board members.

Ponder next argues a series of issues regarding the trial court’s summary judgment in favor of LFPOA on each of its counterclaims. Because Ponder also argues that the trial court should have entered summary judgment in his favor as to each of LFPOA’s claims, we will discuss these arguments together.

“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.2003). 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. Hodurski 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. ‘[S]ubstantial evidence is evidence, of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004). We win address each claim in turn.

Ponder argues that the trial court erred in finding in favor of LFPOA on its counterclaim alleging spoliation of evidence.

“Spoliation is an attempt by a party to suppress or destroy material evidence favorable to the party’s adversary. May v. Moore, 424 So.2d 596, 603 (Ala. 1982). Proof of spoliation will support an inference of guilt or negligence. May, 424 So.2d at 603. One can prove spoliation by showing that a party purposefully or wrongfully destroyed a document that the party knew supported the interest of the party’s opponent. Id.”

Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000). Ponder admitted that he used a personal computer to create a video presentation that was presented at the August 31, 2011, meeting and a Web site seeking participation from LFPOA members in a proposed class-action lawsuit against LFPOA and in a legal-defense fund. He used the same computer to send e-mails to the Board. Ponder admitted that he deleted files from the computer and sold the computer in a yard sale in 2012 without maintaining paper copies of all discoverable information pertinent to his claims and LFPOA’s counterclaims. Ponder claims, however, that he had no malicious intent in taking such action and that “he did not know there might have been any evidence that could be useful to LFPOA on its counterclaim.” In support of this argument, Ponder cites Walker v. City of Huntsville, 62 So.3d 474, 495 (Ala.2010), which provides:

“In Vesta [Fire Insurance Corp. v. Milam & Co. Construction Inc., 901 So.2d 84 (Ala.2004) ], this Court applied the standards [regarding a spoliation claim] and, as part of a detailed analysis, stated:
“ ‘The defendants do not argue that Vesta and Wausau acted with malicious intent in deciding what evidence to preserve, and the record, when viewed most favorably to Vesta and Wausau ... reflects at most honest error in judgment and/or simple negligence. There is no showing that they allowed evidence that they knew, or should have known, would be favorable to the opposing parties in foreseeable litigation to be discarded. Classic spoliation involves the idea that the offending party “purposefully and wrongfully” destroyed evidence “he knew was supportive of the interest of his opponent.” ’
901 So.2d at 96 (quoting May [v. Moore], 424 So.2d [596,] 603 [(Ala.1982) ]). Nothing in this language suggests the availability of an inference contrary to the alleged spoliator on the issue of liability when the loss or destruction of the evidence is shown to be merely an act of negligence inconsistent with the standards of conduct expected of a reasonable person acting under similar circumstances.”

Ponder admits in his brief to this court that “[h]e did have information on his website about the class action,” but he claims that a law firm that he did not ultimately retain instructed him to delete the Web site. Nevertheless, Ponder claims that he had no way of knowing that the information on his computer, which he testified that he disposed of “[p]robably at a yard sale over the summer [of 2012],” would have information relevant to the lawsuit he filed on July 27, 2012. Ponder’s explanation of the circumstances surrounding the disposal of the computer presented a question of fact regarding his credibility, and “a court may not determine the credibility of witnesses on a motion for summary-judgment.” McLeod v. McLeod, 78 So.3d 425, 427 (Ala.Civ.App.2011) (quoting Davis v. Sterne, Agee & Leach, Inc., 965 So.2d 1076, 1089 (Ala.2007), quoting in turn other cases) (internal quotation marks omitted).

As noted, the trial court granted LFPOA’s motion for a summary judgment and denied Ponder’s motion without limitation or specification. In its counterclaim, LFPOA sought damages against Ponder based on spoliation. In its motion for a summary judgment, LFPOA did not request any sanction or damages in regard to the spoliation claim. At the hearing regarding damages, counsel for LFPOA stated: “[W]e would have liked to have known whether [Ponder’s Web site and email activity were] done while he was a member of the Board, because he said it wasn’t while he was a member. So, that’s basically what our spoliation claim was about.” On appeal, LFPOA submits that summary judgment was properly entered based on its spoliation claim because, it argued, the evidence that was destroyed “would provide additional cause in support of [Ponder’s] removal [from the Board], as well as LFPOA’s breach of fiduciary duty claim,” and it “would be fundamentally unfair to require LFPOA and its Board of Directors to defend Ponder’s claims or establish their own claims where Ponder willfully destroyed relevant and material evidence regarding those claims.”

To the extent that LFPOA’s motion for a summary judgment was granted and Ponder’s motion was denied based in whole or in part on the spoliation claim, there remained a genuine issue of material fact preventing sueh action. Therefore, based on the manner in which the spoliation claim was presented to the trial court in the summary-judgment proceedings, we reverse the trial court’s judgment in favor of LFPOA on its spoliation claim, as well as on its breach-of-fiduciary-duty claims and we remand the case for further proceedings on those claims.

Ponder next argues that the trial court erred in entering a summary judgment on LFPOA’s claim that he interfered with a business relationship.

“In order to establish a prima facie case of intentional interference with a business or contractual relationship, there must be proof of each of the following:
“ ‘ “(1) The existence of a contract or business relation; (2) the defendant’s knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of the defendant’s interference.” ’
“McCluney v. Zap Prof'l Photography, Inc., 663 So.2d 922, 925 (Aa.1995) (quoting Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1352-53 (Aa. 1991)).”

S.B. v. Saint James Sch., 959 So.2d 72, 94 (Ala.2006). LFPOA argued in its brief in support of its motion for a summary judgment that LFPOA had a business relationship with its members, that Ponder was aware of that relationship, that Ponder intentionally interfered with that relationship by seeking participation in a class-action lawsuit and encouraging members to “opt-out” of membership in LFPOA and that LFPOA incurred damage in the form of lost time, legal fees, loss of goodwill, and decreased property values. However, it is undisputed that Ponder is a member of LFPOA and is therefore a party to the contractual relationship that exists between LFPOA’s members and LFPOA.

“ ‘After proving the existence of a contract, it is essential to a claim of tortious interference with contractual relations that the plaintiff establish that the defendant is a “third party,” i.e., a “stranger” to the contract with which the defendant allegedly interfered.’ Atlanta Market Ctr. Management Co. v. McLane, 269 Ga. 604, 608, 503 S.E.2d 278, 282 (1998); see also Alcazar Amusement Co. v. Mudd & Colley Amusement Co., 204 Ala. 509, 86 So. 209 (1920). This is so, because ‘a party to a contract cannot, as a matter of law, be liable for tortious interference with the contract.’ Lolley v. Howell, 504 So.2d 253, 255 (Ala.1987).”

BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d 203, 212 (Ala.2001). LFPOA failed to establish that Ponder was a stranger to the contractual relationship with which he allegedly interfered; therefore, Ponder cannot be liable for interference with that relationship. Therefore, we reverse the trial court’s judgment insofar as it found in favor of LFPOA on its claim of tortious interference with a business relationship, and we remand the case for the entry of judgment on this claim in favor of Ponder.

Ponder next argues that the trial court erred by entering a summary judgment in favor of LFPOA on its claim of defamation per se.

“ ‘To establish a prima facie case of defamation, a plaintiff must show:
“ ‘ “[1] that the defendant was at least negligent [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, [5] which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod).” ’
“Ex parte Crawford Broad. Co., 904 So.2d 221, 225 (Ala.2004) (quoting Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 895 (Ala.2004), quoting in turn Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988) (emphasis added)).”

Federal Credit, Inc. v. Fuller, 72 So.3d 5, 9-10 (Ala.2011). Our supreme court has stated:

“Ceravolo v. Brown, 364 So.2d 1155 (Ala.1978), decided significantly after the authorities cited in Gamble’s Alabama Law of Damages § 36-27 n. 4 [ (4th ed.1999) ], restated the test for determining whether an allegedly defamatory statement constitutes slander per se:
“ ‘ “The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod....
“ ‘ “There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation .... This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.
“ ‘ “In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable .per se, there must be an imputation of an indictable offense involving infamy or moral turpitude....
"'"...."'
364 So.2d at 1156-57, quoting Marion v. Davis, 217 Ala. 16, 18, 114 So. 357, 358-59 (1927) (emphasis added).
"....
“When determining whether a statement is actionable as slander per se, a court must give the language used ‘that meaning that would be ascribed to the language by a reader or listener of “average or ordinary intelligence, or by a common mind.”’ Camp v. Yeager, 601 So.2d 924, 927 (Ala.1992), quoting Loveless v. Graddick, 295 Ala. 142, 148, 325 So.2d 137, 142 (1975). Moreover, this Court has stated: ‘ “WTien words from their general import appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.’” Johnson v. Turner, 159 Ala. 356, 358, 47 So. 570, 571 (1908), quoting Wofford v. Meeks, 129 Ala. 349, 357, 30 So. 625, 627 (1901). Stated differently, the courts will not apply a forced construction in order to render the statement nondefamatory and thereby to relieve the defendant of liability. Marion v. Davis, 217 Ala. at 19, 114 So. at 359. Finally, the alleged slanderous statement must be construed in connection with the other parts of the conversation, in order to determine the context in which the statement was made. Marion, supra.

Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 157-58 (Ala.2002).

It is undisputed that Ponder controlled and maintained a publically available Web site that alleged that “[ejvidence of voter fraud, along with illegally collected dues, charges, late fees & assessments have been revealed and serve as the basis of our complaints against the Lake Forest Property Owners Association (LFPOA) and its Board of Directors.” On the Web site, Ponder further stated that “I, along with dozens of LFPOA members, have uncovered conclusive evidence of monetary fraud and voter fraud by past and current members of the Board of Directors.” Relying on his deposition testimony, Ponder argues that he did not intend for his statements on the Web site to indicate that, he was accusing LFPOA of the criminal acts of voter fraud, monetary fraud, and conspiracy to defraud. However, in making this argument, Ponder effectively admits that those statements, given their ordinary and commonly understood meaning, are not true and. therefore cannot serve as the basis for a defense of truth of the matters asserted. Moreover, Ponder admitted in his deposition testimony, that the plain meaning of the statement on the Web site “implies some type of illegal or criminal act.” The undisputed evidence before the trial court was that Ponder knowingly published false and defamatory statements about LFPOA and its Board that imputed criminal acts to LFPOA and its Board; therefore, those statements were actionable per se. Whether Ponder meant something less than “criminal acts” by his statements is not dispositive in light of the commonly understood meaning of the words used.

Ponder further argues that punitive damages were not recoverable pursuant to § 6-11-20, Ala.Code 1975, in regard to the claim of defamation per se. “To recover punitive damages in defamation cases, a plaintiff must show that the declarant communicated the defamatory statement with malice.” Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1095 (Ala.1988). “Where the publication is libelous per se, the law presumes it to be false and, therefore, prompted by malice.” McGraw v. Thomason, 265 Ala. 635, 637, 93 So.2d 741, 742 (1957). Therefore, the trial court did not err in finding, pursuant to § 6-ll-20(b)(2)b., malice “[u]nder such circumstances that the law will imply an evil intent.”

Ponder also argues that LFPOA failed to show damages for its tort claims. As to LFPOA’s defamation per se claim, the law is well settled:

“However, ‘[d]amage is implied by law when spoken words are found to be slander per se.’ Anderton v. Gentry, 577 So.2d 1261, 1263 (Ala.1991), see also Sunshine Invs., Inc. v. Brooks, 642 So.2d 408, 410 (Ala.1994). Words found to be slander per se ‘relieve the plaintiff of the requirement of proving “actual harm to reputation or any other damage” in order to recover nominal or compensatory damages.’ Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1092 (Ala.1988), quoting W. Prosser and W. Keeton, The Law of Torts § 112, at 788 (5th ed.1984).”

Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d at 157. Additionally, LFPOA presented evidence indicating that it incurred legal expenses and increased insurance premiums as a direct result of Ponder’s acts, which LFPOA demonstrated by showing that Ponder led a campaign to encourage individual dues-paying members of LFPOA to remove their properties from the purview of LFPOA and to bring a lawsuit against LFPOA.

Ponder also argues that the trial court erred in calculating the award of damages. Because the trial court did not apportion its damages award, identifying which aspects of its award were attributable to LFPOA’s claim alleging tortious interference with a business relationship, spoliation of evidence, breach of fiduciary duty, and defamation per se, we reverse the damages award in its entirety.

Ponder’s fourth series of arguments are that the trial court should have entered a summary judgment in favor of Ponder on his claims. This issue is reviewable because the trial court granted the motion for a summary judgment filed by LFPOA.

“Ordinarily, a party may not appeal from the denial of a summary-judgment motion. Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 258 (Ala.1988) (‘An order denying summary judgment is interlocutory and nonappealable.’). Where cross-motions for a summary judgment are filed in the trial court, the party whose motion was not granted is entitled to have that motion reviewed on an appeal from the grant of the opponent’s motion.”

Mountain Lakes Dist., N. Alabama Annual Conference, United Methodist Church, Inc. v. Oak Grove Methodist Church, 126 So.3d 172, 180 (Ala.Civ.App.2013); see also Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d 1056, 1071 n. 4 (Ala. 2006).

Ponder argues that, after the Board voted on the motion in November 2003 to delete the newly added language in the bylaws that said the bylaws could be amended by a “vote of a majority of the Board ... at any meeting thereof,” the Board lacked the authority to rescind its decision on that motion on April 28, 2008. It is undisputed that the LFPOA bylaws state that all “stated meetings of the Board ... shall be conducted in accordance with the procedures set out in the current edition of ‘Robert’s Rules of Order,’ except where such rules are superseded by the Articles of Incorporation, the By-Laws or Federal or State law.” Moreover, it is undisputed that Article IX, § 35, of Robert’s Rules of Order (10th ed.) allows for the rescinding of a prior action and provides that the effect of granting a motion to rescind “is to-strike out an entire main motion, resolution, rule, bylaw, section, or paragraph that has been adopted at some previous time.” On April 28, 2008, the Board passed a motion rescinding its action of November 2003 that had deleted the amended language in the bylaws. Ponder cites to general authority for the proposition that one cannot do indirectly what one cannot do directly. However, Ponder cites no authority for the proposition that a private corporation, governed by a set of bylaws and Robert’s Rules of Order, may not employ a provision of Robert’s Rules of Order to rescind an action that had previously been made pursuant to those same Rules. “Rule 28(a)(10)[, Ala.R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If -they do not, the arguments are waived.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

Ponder further argues that, even if the Board had the authority to amend the bylaws after April 28, 2008, the Board “did not amend Section 2.4 at the meeting on September 29,2009.” Specifically, Ponder argues that the minutes from the September 29, 2009, meeting indicate that the Board voted in favor of “a motion to change By-Law 2.4 to its original form.” The record does not contain an “original” copy of the bylaws. The oldest version of the bylaws in the record notes that it is the version “AS AMENDED OCTOBER 10, 1988,” and provides:

“Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association.
“Annual increases in dues must be approved by the members of the Association at the annual meeting. The Board of Directors has no authority to increase dues.. The power of authority of the Board of Directors is limited to one (1) assessment annually, if deemed necessary, for the preservation of the Association. This asséssment cannot exceed $50.00 per member annually.”

On October 4, 2009, the Board held a special meeting to discuss changing the amount of membership dues. At that meeting, the Board passed a motion to increase the LFPOA monthly dues by $6.00 per month effective January 2010. The Board met for another special meeting on October 10, 2009, at which the Board ratified its decision to increase the membership dues made at the October 4, 2009, Board meeting. The record further indicates that Section 2.4 of the LFPOA bylaws as amended on October 10', 2009, provided:

“Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association. Note: Pursuant to a motion made in a special meeting on October 4th, 2009 a maximum cap of 3% can be issued by the Board of Directors as determined at the Annual Meeting.”

Ponder argues that the 1988 version of Section 2.4 is the “original.” However, he offered no evidence indicating that Section 2.4, as it was amended in 1988, was in fact original. Moreover, he offered no evidence to contradict that the October 10, 2009, version of Section 2.4 did not contain the original language that the Board voted to readopt on September 29, 2009, which decision was then ratified on October 10, 2009. Again, Ponder cites no authority in support of this portion of his argument. After LFPOA made a prima facie showing that there is no genuine issue of material fact as to whether it had amended the bylaws to allow the Board to make increases to membership dues, the burden then shifted to Ponder to produce substantial evidence as to the existence of a genuine issue of material fact. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2506, 91 L.Ed.2d 202 (1986). Even viewing the evidence in the light most favorable to Ponder, he has not produced substantial evidence indicating that Section 2.4 of the bylaws, as amended in 2009, does not reflect its original form. Rather, at best, Ponder has demonstrated that it does not reflect the bylaws as amended in 1988. Having failed to produce substantial evidence to overcome LFPOA’s prima facie showing that there is no genuine issue of material fact as to its amendment of Section 2.4 of the bylaws, the trial court did not err in entering summary judgment in favor of LFPOA on both parties’ claims for a declaratory judgment regarding this issue.

Ponder next argues that the Board “did not have the authority to remove Ponder from the Board” pursuant to bylaws. Article V of the bylaws provides the rules for the “Board of Directors” of LFPOA. Section 5.8 of the bylaws provides the mechanism for removal of a director, i.e., a member of the Board:

“Removal of Directors. A director of the Corporation shall not be removed from office except for cause. In order to remove a director from office for cause, such action must be taken by a majority vote at either the annual meeting of the membership or at a special meeting called for that purpose.”

Section 5.6 of the bylaws defines the term “Special Meeting” as follows:

“Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the President, Vice President or by any two of the directors. Notice of such meeting shall be emailed to each director at the director’s last known email address, not later than three days before the day on which the meeting is to be held, or by telephone, not later than the day before the day on which the meeting is to be held. Notice of any meeting of the Board need not be given, however, to any director, if waived by him in writing; and any meeting of the Board of Directors shall be a legal meeting without any notice thereof having been given, if all members shall be present thereat. Any director may waive notice of any meeting of the Board of Directors before or after such meeting. Except as otherwise provided in the By-laws or as may be indicated in the notice thereof, any and all business may be transacted at any special meei> ing of the Board of Directors.
“In any emergency situation where a decision of the Board is necessary, Board members may be reached by telephone, email, or by any other expedient means and, having reached a quorum, Board members may transact business and make necessary decisions by conference call, email, or by other means necessary. Normal notice requirements may be waived by the members of the Board in this event. However, decisions made in emergency situations shall be addressed and ratified at the next slated Board meeting in the usual order of business with proper notations in the minutes of said meeting to preserve the records and minutes of the Board.”

There is no provision within Section 5.6 for a “special meeting” of LFPOA’s entire membership. However, Section 3.2 defines a “special meeting” as follows:

“Section 3.2. Special Meetings. A special meeting of the members of the Corporation may be called at any time by the Board of Directors, the President, Vice President or by persons holding at least twenty-five percent (25%) of the votes eligible to be cast in any such meeting, except as otherwise provided by statute or in the Articles of Incorporation or any amendment thereto.”

When a term used in a contract is susceptible to more than one reasonable interpretation, that term is ambiguous, and the trial court is precluded from entering summary judgment on issues the resolution of which are dependent upon an interpretation of that term. Whitetail Dev. Corp. v. Nickelson, 689 So.2d 865, 867 (Ala.Civ.App.1996)(“The term ‘closing,’ as used in this contract, is susceptible to more than one reasonable interpretation and is, therefore, ambiguous. Accordingly, the trial court was precluded from entering a summary judgment.”). Because the bylaws have two different definitions of “special meeting,” the type of “special meeting” envisioned by Section 5.8 is ambiguous and creates a genuine issue of material fact as to whether the “special meeting” referred to in Section 5.8 is a meeting of the Board or a meeting of LFPOA’s entire membership. Therefore, we reverse the judgment in favor of LFPOA on the parties’ respective claims for a declaratory judgment regarding the Board’s authority to remove Ponder as a director at a special meeting of the Board, and we remand the case for further proceedings on this issue.

Ponder’s argument that the trial court erred in denying his motion for a summary judgment on his claim of unjust enrichment is moot in light of our holding that the Board did not “unlawfully” raise membership dues. For the foregoing reasons, we affirm the summary judgment entered in favor of LFPOA on the parties’ claims for a declaratory judgment as to whether the Board could amend the bylaws and increase dues, on LFPOA’s claim asserting liability for defamation per se, and on Ponder’s claims of unjust enrichment and civil conspiracy, and we affirm the dismissal of the individual Board members. We reverse the trial court’s summary judgment in favor of LFPOA as to the claims for a declaratory judgment regarding the Board’s authority to remove Ponder as a director, as to LFPOA’s claim of tortious interference with a business relationship, as to LFPOA’s claim alleging spoliation of evidence, and as to LFPOA’s claim alleging breach of fiduciary duty. Further, because the damages award is not apportioned among the claims that are still viable and the claims that are not viable, we reverse the award of damages. We remand the case for the trial court to enter a summary judgment in favor of Ponder on LFPOA’s intentional-interference claim, to enter a damages award on LFPOA’s defamation claim, and to conduct further proceedings on LFPOA’s spoliation and breach-of-fiduciary-duty claims and on LFPOA’s and Ponder’s declaratory-judgment claims as to Ponder’s removal from the Board.

Ponder’s request for the award of attorney fees on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur in the result, without writing.

      . Ponder offers no argument or citation to authority regarding his claim in his complaint seeking class certification, and that argument is therefore waived.